SUNEEL S. TALWAR V. BARBARA M. TALWAR AND BARBARA M. EBEL V. SUNEEL S. TALWAR
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RENDERED:
March 27, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO.
96-CA-0322-MR
SUNEEL S. TALWAR
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
ACTION NO. 93-FD-3105
V.
BARBARA M. TALWAR
APPELLEE
and
NO. 96-CA-0447-MR
BARBARA M. EBEL
V.
CROSS-APPELLANT
CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
ACTION NO. 93-FD-3105
SUNEEL S. TALWAR
CROSS-APPELLEE
OPINION
AFFIRMING IN PART,
VACATING AND REMANDING IN PART
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BEFORE:
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BUCKINGHAM, COMBS, and GARDNER, Judges.
COMBS, JUDGE:
This action involves an appeal and cross-appeal
from the order the Jefferson Circuit Court entered in a
dissolution proceeding between Suneel Talwar (Talwar) and Barbara
Talwar (now Ebel).
Talwar argues on appeal that the court erred
in awarding Ebel sole custody of the parties' two minor children.
Ebel cross-appeals from the common-law judgment for $30,000.00 in
favor of Talwar and alleges that the court erred in its valuation
of her medical practice.
On September 8, 1994, the Jefferson Circuit Court
entered a decree dissolving the parties' twenty-year marriage of
which two minor children were born.
The court reserved the other
issues related to the dissolution and entered a supplemental
decree on November 20, 1995, disposing of the issues regarding
child custody, child support, maintenance, and the division of
marital property.
children.
Ebel was awarded sole custody of the two minor
Noting the contentious behavior of the parties
throughout the proceedings, the court found that joint custody
was not a viable option.
Additionally, the court stated that
Ebel's medical practice did not have a value since Ebel had no
ownership interest in Medical Center Anesthesiologists, her
employer.
On December 11, 1995, Talwar filed a motion to amend,
vacate, and set aside the court's supplemental decree.
He
alleged that the court had erred in failing to assess the value
of Ebel's medical practice, which he claimed constituted marital
property that was subject to division.
He also argued that court
had improperly failed to award him joint custody of the children.
Accordingly, on January 17, 1996, the court entered an
order amending the supplemental decree of November 20, 1995.
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The
court re-affirmed its decision awarding Barbara sole custody of
the two minor children but agreed that it had erred in finding
that Ebel's medical practice had no value.
The court held that
Ebel's practice was worth $71,400.00 and awarded Talwar a commonlaw judgment against Ebel in the sum of $30,000.00.
The court
made other additional findings of fact not relevant to the
appeals before this Court.
Talwar filed an appeal from the court's order,
appealing only the court's findings as to the custody of the
parties' two children.
Ebel filed a motion to alter, amend, or
vacate the court's order entered January 17, 1996.
The court
entered an order denying her motion on February 7, 1996; this
order also addressed the issue of the amount and security
necessary for a supersedeas bond for the common-law judgment of
$30,000.00.
Ebel filed a cross-appeal, challenging as error the
court's finding which had assessed a value to her "medical
practice."
We will address the custody issue first.
Pursuant to
KRS 403.270, the court "shall determine custody in accordance
with the best interests of the child".
The court is required to
consider six relevant factors:
(1) the wishes of the child's parent or
parents;
(2) the wishes of the child;
(3) the interaction and interrelationship of
the child with his parent or parents, his
siblings, and any other person who may
significantly affect the child's best
interest;
(4) the child's adjustment to his home,
school, and community;
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(5) the mental and physical health of all
individuals involved; and
(6) information, records, and evidence of
domestic violence as defined in KRS 403.720.
KRS 403.270(1).
The court must give each parent equal
consideration; and if it finds that it is in the best interest of
the child, joint custody may be granted.
KRS 403.270(4).
A
trial court has broad discretion in deciding what constitutes the
best interest of the child when making a custody determination.
Krug v. Krug, Ky., 647 S.W.2d 790 (1983).
On appellate review,
the trial court's findings of fact regarding custody cannot be
overturned unless clearly erroneous.
Reichle v. Reichle, Ky.,
719 S.W.2d 442 (1986).
Courts cannot show a preference for sole custody over
joint custody:
"the parties are entitled to an individualized
determination of whether joint custody or sole custody serves the
child's best interest."
770.
Squires v. Squires, Ky., 854 S.W.2d 765,
Squires, supra, sets forth the relevant test to be applied
to the selection process and notes that the analysis for joint
and sole custody is the same:
We see no significant difference between the
analysis required with respect to joint
custody than the analysis required when the
court grants sole custody. In either case the
court must consider all relevant factors and
formulate a result which is in the best
interest of the child whose custody is at
issue. Legislative authorization of joint
custody merely gives the trial court another
alternative if such appears to be
appropriate.
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Squires, supra at 768.
In sum, the court cannot show preference
for joint or sole custody; they enjoy parity with one another
with neither being accorded superior status.
Talwar alleges that the court's decision to award Ebel
sole custody was erroneous as it was contrary to the evidence.
He maintains that he was the parent primarily responsible for the
care of the children and that the court should have awarded him
joint custody of the children.
In support, he cites the many
witnesses who testified favorably as to his relationship and
devotion to his children.
However, an examination of the record
shows that Ebel also introduced numerous witnesses who testified
that she was the primary caretaker of the children.
It is within
the discretion of the trial court to weigh the credibility of the
witnesses and to choose which evidence it finds more persuasive
and credible.
The court found that Ebel was the parent primarily
responsible for the care of the children and awarded her sole
custody, stating that joint custody was not an option in light of
the parties' hostility toward each other.
In reaching this
determination, the court also relied upon the report of Dr.
Berry, a licensed clinical psychologist.
Upon the request of the
court, Dr. Berry performed psychological evaluations of the
parties and their children.
Dr. Berry stated in her report that
traditional joint custody did not appear workable in this case,
citing the parties' lack of interpersonal skills for joint
problem-solving and their anger and distrust of each other.
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In
its amended order of January 19, 1996, the court candidly (and
bluntly) declared its reason for not awarding joint custody:
In the best of all possible worlds the Court
normally presumes that joint custody is best
for children. However, in this situation
joint custody was not an option. Time and
again during the course of this extended
litigation, these parties have shown that
they are not able to communicate with each
other in the interest of their children or to
put the interests of their children first and
foremost above their own petty egos.
It is clear that the court engaged in a careful
analysis as to which custody arrangement would be in the best
interest of the children.
The court also made detailed findings
to support its decision to award Ebel sole custody of the
children.
There is no evidence that the court did not give each
of the parties equal consideration; nor is there any proof that
the court failed to consider the six relevant factors set forth
in KRS 430.270.
We have no basis for interfering with the
court's exercise of its sound discretion, and we hold that the
court's findings with regard to the custody of the parties' minor
children were not clearly erroneous.
We now turn our attention to the issue raised by Ebel's
appeal: whether the court erred in finding that her medical
practice had a value of $71,400.00 and awarding Talwar a commonlaw judgment of $30,000.00.
During the marriage, Ebel attended
the University of Louisville, attaining an undergraduate degree.
She then enrolled in medical school and received a medical degree
and her license to practice.
In June, 1992, Ebel accepted
employment with Medical Center Anesthesiologist, Inc. (MCA).
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Her
status is that of an employee with MCA.
She owns no equity
interest in the corporation; at most, she enjoys a "hope" of
being invited (at an unascertained future date) to become a
stockholder in MCA.
When she made a request for stockholder
status in 1995, she was denied.
Ebel argues that the court erroneously found her that
employment had a property value which was subject to division as
a marital asset.
She contends that maintenance is a more
equitable way of dealing with the disparity in the parties'
incomes.1
Conversely, Talwar argues that the court properly
found that Ebel's medical practice had a value and that it
correctly awarded him a judgment of $30,000.
He also contends
that he is entitled to a percentage of her practice as he had
made financial and emotional contributions toward Ebel's
attainment of a medical degree and license -- even making
sacrifices as to his own career.
It is clear from the record that Ebel does not have a
"medical practice."
She does not have an equitable interest in
MCA -- nor does she have a practice outside of her employment
with MCA.
She is, quite simply, an employee of MCA.
The
circumstances of this case are clearly distinguishable from cases
in which one spouse has his own practice or enjoys an interest in
a professional practice or service corporation.
this case raises the "diploma dilemma":
1
Essentially,
the problem of how
The court found that Talwar's annual income was
approximately $58,000 and that Ebel's was $238,000.
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courts are to treat a professional degree attained by one spouse
but resulting from sacrifices and efforts expended by both.
In this jurisdiction, a professional degree may not be
treated as marital property.
(1982). (Inman II).
(1983).
Inman v. Inman, Ky., 648 S.W.2d 847
McGowan v. McGowan, Ky. App., 663 S.W.2d 219
However, the fact that professional degrees do not
constitute marital property does not mean that "the efforts and
economic sacrifices of one spouse who has put the other spouse
through school should go unrecognized and uncompensated if they
later divorce."
McGowan, supra at 223.
In Lovett v. Lovett,
Ky., 688 S.W.2d 329 (1985), the Supreme Court of Kentucky set
forth the analysis to apply to the "diploma dilemma":
It is our opinion that the problem is best
served by application of our existing
statutory and case law and treating the
professional degree and license as relevant
factors to be considered in the standard of
living established during the marriage,
awarding maintenance based thereon. . . . We
do not intend to sentence the professional
spouse to servitude or award the noncontributing spouse with a meal ticket. As
maintenance, the award may be modified in
cases of unconscionability.
It is the holding of this court that a
professional degree and a license to practice
are relevant factors to be considered by the
trial court in its determination of the
standard of living established during the
marriage, both as this standard relates to
the ability of the non-professional spouse to
support himself/herself and as it relates to
the amount and period of time of the
maintenance. . . .
Thus, pursuant to KRS 403.200, the court can properly consider
the fact that the divorcing couple may have begun to enjoy an
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increased standard of living as a result of the professional
degree attained by one spouse and the impact of a divorce on the
non-professional spouse's standard of living.
McGowan, supra.
In this case, Ebel was an employee of MCA who had no
equitable interest in the corporation.
In holding that Ebel's
"medical practice" had a value, the circuit court erroneously
assigned a value to her medical degree and license.
The fact
that Ebel may in the future acquire an interest in MCA is not a
property interest
susceptible of division.
Thus we find that
the court was clearly erroneous in holding that Ebel's medical
"degree" had a value.
We vacate that portion of the court's
order as to its finding that Ebel had a medical practice which
could be valued and the common-law judgment of $30,000.00 in
favor of Talwar.
Upon remand, we instruct the circuit court to
enter findings of fact consistent with this opinion regarding the
"diploma dilemma."
For the foregoing reasons, we affirm the order of the
Jefferson Circuit Court awarding sole custody to Ebel.
We vacate
and remand the court's order as to Ebel's medical practice with
instructions to make findings of fact consistent with our
opinion.
ALL CONCUR.
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BRIEFS AND ORAL ARGUMENT FOR
APPELLANT/CROSS-APPELLEE
SUNEEL S. TALWAR:
BRIEFS AND ORAL ARGUMENT FOR
APPELLEE/CROSS- APPELLANT
BARBARA M. TALWAR (NOW EBEL):
Eugene L. Mosley
Louisville, KY
Victoria Ann Ogden
Louisville, KY
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