{ "id": 8522461, "name": "LUCYNA M. SONEK v. MOJMIR J. SONEK", "name_abbreviation": "Sonek v. Sonek", "decision_date": "1992-02-04", "docket_number": "No. 9123DC122", "first_page": "247", "last_page": "258", "citations": [ { "type": "official", "cite": "105 N.C. App. 247" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "76 ALR4th 1025", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "381 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "715" }, { "page": "715" } ], "opinion_index": 0 }, { "cite": "325 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491380 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0152-01" ] }, { "cite": "344 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "81 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522057 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/81/0159-01" ] }, { "cite": "352 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "875", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168525 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/84/0353-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1991, "pin_cites": [ { "page": "(c)(7)" }, { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "335 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "421" } ], "opinion_index": 0 }, { "cite": "314 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689381, 4687407, 4695924, 4688661, 4687388 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0543-04", "/nc/314/0543-05", "/nc/314/0543-03", "/nc/314/0543-02", "/nc/314/0543-01" ] }, { "cite": "331 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "271" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526019 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/75/0414-01" ] }, { "cite": "81 S.E. 1096", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1914, "opinion_index": 0 }, { "cite": "166 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268925 ], "year": 1914, "opinion_index": 0, "case_paths": [ "/nc/166/0187-01" ] }, { "cite": "77 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "238 N.C. 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607436 ], "year": 1953, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0317-01" ] }, { "cite": "692 P.2d 175", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "241-42" }, { "page": "178", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "103 Wash. 2d 236", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1134153 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/wash-2d/103/0236-01" ] }, { "cite": "353 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "431", "parenthetical": "career enhancing contributions" } ], "opinion_index": 1 }, { "cite": "84 N.C. App. 471", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168734 ], "year": 1987, "pin_cites": [ { "page": "478", "parenthetical": "career enhancing contributions" } ], "opinion_index": 1, "case_paths": [ "/nc-app/84/0471-01" ] }, { "cite": "370 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "services rendered between spouses presumed gratuitous" } ], "opinion_index": 1 }, { "cite": "322 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519568, 2518281, 2516346, 2514601 ], "year": 1988, "pin_cites": [ { "parenthetical": "services rendered between spouses presumed gratuitous" } ], "opinion_index": 1, "case_paths": [ "/nc/322/0486-03", "/nc/322/0486-02", "/nc/322/0486-01", "/nc/322/0486-04" ] }, { "cite": "364 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "163", "parenthetical": "services rendered between spouses presumed gratuitous" } ], "opinion_index": 1 }, { "cite": "88 N.C. App. 539", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358566 ], "year": 1988, "pin_cites": [ { "page": "544", "parenthetical": "services rendered between spouses presumed gratuitous" } ], "opinion_index": 1, "case_paths": [ "/nc-app/88/0539-01" ] }, { "cite": "374 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "for unjust enrichment claim the \"benefit must not be gratuitous\"" } ], "opinion_index": 1 }, { "cite": "323 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565485 ], "year": 1988, "pin_cites": [ { "parenthetical": "for unjust enrichment claim the \"benefit must not be gratuitous\"" } ], "opinion_index": 1, "case_paths": [ "/nc/323/0559-01" ] }, { "cite": "359 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "469" } ], "opinion_index": 1 }, { "cite": "320 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730522 ], "year": 1987, "pin_cites": [ { "page": "577" } ], "opinion_index": 1, "case_paths": [ "/nc/320/0573-01" ] }, { "cite": "661 P.2d 196", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 737438 ], "year": 1982, "pin_cites": [ { "page": "207", "parenthetical": "court allowed restitution measure of recovery limited to contributions for \"living expenses and direct educational expenses\"" } ], "opinion_index": 1, "case_paths": [ "/ariz/135/0346-01" ] }, { "cite": "442 N.W.2d 59", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10590984 ], "year": 1989, "pin_cites": [ { "page": "64", "parenthetical": "alimony designed to compensate spouse for economic sacrifices directly enhancing other spouse's future earning capacity and does not end until full compensation achieved" } ], "opinion_index": 1, "case_paths": [ "/nw2d/442/0059-01" ] }, { "cite": "61 N.C. L. Rev. 247", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1983, "opinion_index": 1 }, { "cite": "387 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "184" } ], "opinion_index": 1 }, { "cite": "97 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519562 ], "year": 1990, "pin_cites": [ { "page": "80" } ], "opinion_index": 1, "case_paths": [ "/nc-app/97/0077-01" ] }, { "cite": "543 N.Y.S.2d 1016", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1989, "pin_cites": [ { "page": "1019-20" } ], "opinion_index": 1 }, { "cite": "409 S.E.2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "751" } ], "opinion_index": 1 }, { "cite": "104 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522246 ], "year": 1991, "pin_cites": [ { "page": "465" } ], "opinion_index": 1, "case_paths": [ "/nc-app/104/0461-01" ] }, { "cite": "489 N.E.2d 712", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "717", "parenthetical": "medical license" }, { "page": "718" } ], "opinion_index": 1 }, { "cite": "225 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "633", "parenthetical": "license to engage in occupation is property right" } ], "opinion_index": 1 }, { "cite": "29 N.C. App. 747", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8557217 ], "year": 1976, "pin_cites": [ { "page": "748", "parenthetical": "license to engage in occupation is property right" } ], "opinion_index": 1, "case_paths": [ "/nc-app/29/0747-01" ] }, { "cite": "286 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "law license" } ], "opinion_index": 1 }, { "cite": "304 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570279 ], "year": 1982, "pin_cites": [ { "parenthetical": "law license" } ], "opinion_index": 1, "case_paths": [ "/nc/304/0627-01" ] }, { "cite": "277 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "836" } ], "opinion_index": 1 }, { "cite": "52 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169950 ], "year": 1981, "pin_cites": [ { "page": "15" } ], "opinion_index": 1, "case_paths": [ "/nc-app/52/0001-01" ] }, { "cite": "397 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "Court of Appeals \"in its discretion\" decided appeal filed in violation of Appellate Rule 10" } ], "opinion_index": 1 }, { "cite": "100 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527002 ], "year": 1990, "pin_cites": [ { "parenthetical": "Court of Appeals \"in its discretion\" decided appeal filed in violation of Appellate Rule 10" } ], "opinion_index": 1, "case_paths": [ "/nc-app/100/0465-01" ] }, { "cite": "324 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "919", "parenthetical": "partnership engaged in accounting" } ], "opinion_index": 1 }, { "cite": "72 N.C. App. 409", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526857 ], "year": 1985, "pin_cites": [ { "page": "414", "parenthetical": "partnership engaged in accounting" } ], "opinion_index": 1, "case_paths": [ "/nc-app/72/0409-01" ] }, { "cite": "353 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "sole proprietorship engaged in landscaping" } ], "opinion_index": 1 }, { "cite": "319 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4743692, 4740912, 4746258, 4740023, 4740696 ], "year": 1987, "pin_cites": [ { "parenthetical": "sole proprietorship engaged in landscaping" } ], "opinion_index": 1, "case_paths": [ "/nc/319/0103-04", "/nc/319/0103-02", "/nc/319/0103-03", "/nc/319/0103-01", "/nc/319/0103-05" ] }, { "cite": "347 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "873" } ], "opinion_index": 1 }, { "cite": "82 N.C. App. 738", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359921 ], "year": 1986, "pin_cites": [ { "page": "741" } ], "opinion_index": 1, "case_paths": [ "/nc-app/82/0738-01" ] }, { "cite": "378 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "closely held corporation engaged in trucking" } ], "opinion_index": 1 }, { "cite": "324 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485127, 2486274, 2483917, 2488159 ], "year": 1989, "pin_cites": [ { "parenthetical": "closely held corporation engaged in trucking" } ], "opinion_index": 1, "case_paths": [ "/nc/324/0336-02", "/nc/324/0336-04", "/nc/324/0336-03", "/nc/324/0336-01" ] }, { "cite": "374 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "407" } ], "opinion_index": 1 }, { "cite": "92 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526829 ], "year": 1988, "pin_cites": [ { "page": "301-02" } ], "opinion_index": 1, "case_paths": [ "/nc-app/92/0299-01" ] }, { "cite": "374 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "385", "parenthetical": "professional association engaged in law practice" } ], "opinion_index": 1 }, { "cite": "323 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2563389 ], "year": 1988, "pin_cites": [ { "page": "558", "parenthetical": "professional association engaged in law practice" } ], "opinion_index": 1, "case_paths": [ "/nc/323/0543-01" ] }, { "cite": "352 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "873", "parenthetical": "earning potential" } ], "opinion_index": 1 }, { "cite": "84 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168525 ], "year": 1987, "pin_cites": [ { "page": "358-59", "parenthetical": "earning potential" } ], "opinion_index": 1, "case_paths": [ "/nc-app/84/0353-01" ] }, { "cite": "335 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "solely-owned professional association engaged in dental practice" } ], "opinion_index": 1 }, { "cite": "314 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689381, 4687407, 4695924, 4688661, 4687388 ], "year": 1985, "pin_cites": [ { "parenthetical": "solely-owned professional association engaged in dental practice" } ], "opinion_index": 1, "case_paths": [ "/nc/314/0543-04", "/nc/314/0543-05", "/nc/314/0543-03", "/nc/314/0543-02", "/nc/314/0543-01" ] }, { "cite": "331 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "271", "parenthetical": "solely-owned professional association engaged in dental practice" }, { "page": "271" } ], "opinion_index": 1 }, { "cite": "75 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526019 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "420", "parenthetical": "solely-owned professional association engaged in dental practice" }, { "page": "421" } ], "opinion_index": 1, "case_paths": [ "/nc-app/75/0414-01" ] }, { "cite": "77 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "914" } ], "opinion_index": 1 }, { "cite": "238 N.C. 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607436 ], "year": 1953, "pin_cites": [ { "page": "321" } ], "opinion_index": 1, "case_paths": [ "/nc/238/0317-01" ] } ], "analysis": { "cardinality": 1095, "char_count": 27134, "ocr_confidence": 0.766, "pagerank": { "raw": 2.690975074773199e-07, "percentile": 0.8275816466519863 }, "sha256": "9219132f19b7441f70bd2575335764c3257156b4e6bc6a9a83b7e1c0c2a6e1c6", "simhash": "1:8bf9f507324e59d6", "word_count": 4330 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Parker concurs.", "Judge GREENE concurs in the result with separate concurring opinion." ], "parties": [ "LUCYNA M. SONEK v. MOJMIR J. SONEK" ], "opinions": [ { "text": "WYNN, Judge.\nThe plaintiff and defendant were married on 18 June 1972, in Chicago, Illinois. Two children were born of the marriage. On 5 June 1990, the parties obtained a judgment of absolute divorce.\nThe defendant, husband, is a medical doctor, specializing in obstetrics and gynecology. Defendant set up his own medical practice in Mocksville, North Carolina, in November 1984. Thereafter, in April 1986, defendant became a salaried employee of Brushy Mountain Ob-Gyn Associates, P.A. (\u201cBrushy Mountain\u201d), located in Wilkesboro, North Carolina, and owned solely by Charles F. Whicker who employed defendant pursuant to a written Employment Agreement.\nAt the time defendant and plaintiff separated, defendant was an employee of Brushy Mountain and held no ownership interest in the association. Five days after the separation, defendant ended his employment with Brushy Mountain and subsequently opened his own practice in Wilkesboro, North Carolina.\nPlaintiff filed an action for equitable distribution of marital property, child custody, child support, and alimony on 23 November 1988. From the equitable distribution judgment and the child support order, defendant appealed.\nI.\nThe appellant contends that the trial court committed error in finding that his medical practice at the time of the separation had goodwill to be included as a marital asset. He argues that a salaried employee of a professional association who has no ownership interest in the association cannot have personal goodwill for equitable distribution purposes. We agree.\nThe question of whether a salaried employee with no ownership interest in the respective business may have personal goodwill is a matter of first impression for our courts. A similar issue has been addressed, however, by the Washington Supreme Court in the case of In re Marriage of Hall, 103 Wash. 2d 236, 692 P.2d 175 (1984), wherein the Court considered the division of marital property of two physicians. The husband in Hall owned his own practice, and the wife worked as a salaried employee at a medical school. In rejecting the husband\u2019s contention that the wife\u2019s practice had professional goodwill, the Court reasoned as follows:\nOnce goodwill is distinguished from earning capacity, the error becomes apparent in the argument that a practicing professional and a salaried professional, with equal earning capacities and educations, both have goodwill. Both have earning capacities, and, yet, only the practicing professional has a business or practice to which the goodwill can attach. The practicing professional brings an earning capacity to the practice comprised of skill and education. The goodwill, comprised of such things as location, referrals, associations, reputation, trade name and office organization, can directly supplement this earning capacity. When the practicing professional dies, retires or moves, he takes his skill and education with him, but the goodwill factors must be transferred or otherwise left behind. The goodwill may exist even though it is not marketable.\nThe salaried professional also brings an earning capacity comprised of skill and education to the position. However, when the salaried professional leaves a position, he takes everything with him to the new position. There is nothing that increased his earning capacity in the old salaried position that cannot be taken to the new position.\nId. at 241-42, 692 P.2d at 178 (citation omitted).\nThe Washington Supreme Court\u2019s decision in Hall is consistent with the concept of goodwill as developed by the courts of this State. Our Supreme Court has defined goodwill in the following manner: \u201cGoodwill exists as property merely as an incident to other property rights, and is not susceptible of being owned and disposed of separately from the property right to which it is incident.\u201d Maola Ice Cream of North Carolina, Inc. v. Maola Milk and Ice Cream Co., 238 N.C. 317, 321, 77 S.E.2d 910, 914 (1953). See Faust v. Rohr, 166 N.C. 187, 81 S.E. 1096 (1914). In Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, disc. review denied, 314 N.C. 543, 335 S.E.2d 316 (1985), this Court delineated the factors relevant in determining goodwill as \u201cthe age, health, and professional reputation of the practitioner, the nature of the practice, the length of time the practice has been in existence, its past profits, its comparative professional success, and the value of its other assets.\u201d Id. at 421, 331 S.E.2d at 271.\nIn the case at bar, appellant had no ownership interest in Brushy Mountain on the date of the separation. The decisions in Poore and Maola demonstrate that there is no goodwill in this situation. The factors discussed in Poore, such as the past profits of the practice and the value of its assets, are obviously inapplicable to a non-owner salaried employee since they presume the existence of an ownership interest. Additionally, under the Maola Court\u2019s definition, goodwill does not exist in the absence of a property right. We, therefore, find that a salaried employee who maintains no ownership interest in the particular place of employment does not possess goodwill.\nThe trial court, in the instant case, concluded that defendant\u2019s medical practice had goodwill with a value of $31,419.92 on 25 June 1988, the date of separation. It awarded the goodwill to defendant. The court- also stated that \u201c[i]f the defendant\u2019s medical practice had not had goodwill on June 25, 1988, or if this goodwill had a value less than that determined, then the Court would have distributed the marital property with a greater percentage of it being distributed to the plaintiff.\u201d Because the trial judge made his percentage award based on the presence of the $31,419-92 goodwill, we remand this case to the trial court.\nWhile we recognize an inequity may result from our holding here today and note that Judge Greene has suggested in his concurring opinion that such inequity may be cured by classifying the increased value, if any, of defendant\u2019s medical license as marital property, this issue was not raised by either of the parties on appeal. We, therefore, are without jurisdiction to address this issue. N.C.R. App. P. 10 (This Court\u2019s scope of review \u201cis confined to a consideration of those assignments of error set out in the record on appeal.\u201d). Moreover, we note that one spouse\u2019s contribution to \u201chelp educate or develop the career potential of the other spouse\u201d is currently a distributional factor that allows a trial judge to order an unequal division of marital property. N.C. Gen. Stat. \u00a7 50-20(c)(7) (1991). In the present case, the trial judge, in fashioning the original order, allowed himself sufficient latitude for curing any potential inequities resulting from our reversal of his goodwill determination. The trial judge, on remand, should eliminate the value of the goodwill and assign the proper percentage due to each spouse.\nII.\nAppellant also assigns error to the trial court\u2019s valuation of the goodwill of defendant\u2019s medical practice at $31,419.92 and the trial court\u2019s award to plaintiff of seventy-five percent of the marital property. We need not address these issues since we have decided that defendant possessed no goodwill. Furthermore, because the trial judge on remand must reassess the percentage award to plaintiff, we need not decide whether it was error to award seventy-five percent of the marital property to plaintiff.\nIII.\nAppellant also contends that the trial court committed reversible error by making a distributive award to plaintiff without allocating to her as many items of property as was practical. He argues that section 50-20(e) authorizes distributive awards only if a division in kind is impractical. We disagree.\nThe statute governing distributive awards provides, in pertinent part,\nIn any action in which the court determines that an equitable distribution of all or portions of the marital property in kind would be impractical, the court in lieu of such distribution shall provide for a distributive award in order to achieve equity between the parties. The court may provide for a distributive award to facilitate, effectuate or supplement a distribution of marital property.\nN.C. Gen. Stat. \u00a7 50-20(e) (1991). In Harris v. Harris, 84 N.C. App. 353, 352 S.E.2d 869 (1987), this Court stated the directive under section 50-20(e) as an alternative test: \u201cG.S. 50-20(e) directs the court to make a distributive award \u2018in order to achieve equity between the parties\u2019 in those cases where a distribution in kind would be impractical, and otherwise permits a distributive award in order \u2018to facilitate, effectuate or supplement a distribution of marital property.\u2019 \u201d Id. at 362, 352 S.E.2d at 875 (emphasis added). No North Carolina court has held that distributive awards are authorized only when a distribution in kind is impractical. The only apparent limit to the trial judge\u2019s discretion concerns distributive awards payable for more than six years after the marriage ceases. See Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986). Furthermore, the trial court found as fact that a complete distribution in kind was not practical and that a distributive award was necessary to achieve equity between the parties. Based on the foregoing, we find that the trial court\u2019s distributive award to plaintiff was not erroneous.\nIV.\nAppellant further assigns error to the trial court\u2019s award of an expert witness fee to Dr. Christopher Wise. Appellant contends that Dr. Wise testified as a fact witness rather than as an expert, and that there was no basis in the record to support the trial court\u2019s finding that $200 per hour was reasonable. We disagree.\nIn Turner v. Duke University, 325 N.C. 152, 381 S.E.2d 706 (1989), our Supreme Court discussed the distinction between a physician testifying as a fact witness and an expert witness: \u201cAlthough, by general definition, all doctors may be considered experts in that they possess a specialized knowledge of medicine beyond that of the layman, not every role of a doctor as a witness in a legal controversy is in the capacity of an \u2018expert\u2019 witness.\u201d Id. at 167-68, 381 S.E.2d at 715. At issue in Turner was defendant\u2019s alleged failure to identify a physician as an expert witness. The Court concluded that the doctor was an ordinary fact witness because the focus of his deposition was his treatment and personal observations of plaintiff\u2019s medical condition rather than his opinion concerning the standard of plaintiffs care. Id. at 167, 381 S.E.2d at 715.\nIn the instant case, while it is true that Dr. Wise testified about his treatment of Mrs. Sonek\u2019s disease, he also gave his opinion as to the prognosis for her rheumatoid arthritis. Dr. Wise described, at length, the characteristics and treatment of rheumatoid arthritis. The main purpose for his testimony was to establish the extent of Mrs. Sonek\u2019s future disability. Accordingly, we find that the trial court did not err in determining that Dr. Wise testified as an expert witness.\nAppellant further contends that there is no basis in the record to support the trial court\u2019s finding that $200 per hour was a reasonable fee for Dr. Wise\u2019s testimony. We disagree with appellant\u2019s contention. Dr. Wise was subpoenaed as a witness and expended approximately three and one-half hours of his time to testify at trial. Although Dr. Wise claimed his normal fee for expert testimony was $500 per hour, the court awarded only $200 per hour. We, therefore, hold that the trial court did not abuse its discretion in awarding $200 per hour to Dr. Wise. See N.C. Gen. Stat. \u00a7 7A-314 (1989).\nV.\nFinally, the appellant argues that the trial court committed error by awarding the plaintiff attorney\u2019s fees in the child support action. In as much as appellant failed to include a copy of the child support order in the record on appeal, we are unable to reach the merits of this issue.\nThe judgment of the trial court is,\nAffirmed in part, reversed in part, and remanded.\nJudge Parker concurs.\nJudge GREENE concurs in the result with separate concurring opinion.", "type": "majority", "author": "WYNN, Judge." }, { "text": "Judge GREENE\nconcurring in the result.\nI agree with the majority that under current North Carolina law, goodwill exists only in the presence of an ownership interest in a business. See Maola Ice Cream Co. v. Maola Milk & Ice Cream Co., 238 N.C. 317, 321, 77 S.E.2d 910, 914 (1953); McLean v. McLean, 323 N.C. 543, 558, 374 S.E.2d 376, 385 (1988) (professional association engaged in law practice); Locklear v. Locklear, 92 N.C. App. 299, 301-02, 374 S.E.2d 406, 407 (1988), disc. rev. allowed, 324 N.C. 336, 378 S.E.2d 794 (1989) (closely held corporation engaged in trucking); Draughon v. Draughon, 82 N.C. App. 738, 741, 347 S.E.2d 871, 873 (1986), disc. rev. denied, 319 N.C. 103, 353 S.E.2d 107 (1987) (sole proprietorship engaged in landscaping); Poore v. Poore, 75 N.C. App. 414, 420, 331 S.E.2d 266, 271, disc. rev. denied, 314 N.C. 543, 335 S.E.2d 316 (1985) (solely-owned professional association engaged in dental practice); Weaver v. Weaver, 72 N.C. App. 409, 414, 324 S.E.2d 915, 919 (1985) (partnership engaged in accounting). Accordingly, because the defendant-employee did not have an ownership interest in his place of employment, I agree that the defendant has no goodwill. As the following facts reveal, however, our holding will lead to an inequitable result if we fail to recognize as marital property the increase in value, if any, to the defendant-employee\u2019s medical license due to marital contributions, if any. I disagree with the majority that this issue has not been raised by either of the parties to this appeal. Defendant specifically argues in his brief that \u201cthe value [of his medical license] that accrued during his employment . . . should ... be recognized as his separate property.\u201d In any event, to the extent that Rule 10 has been violated, in order to \u201cprevent manifest injustice\u201d and to \u201cexpedite decision in the public interest,\u201d I would suspend the rule, pursuant to Appellate Rule 2, and answer the question raised. See State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337 (1990) (Court of Appeals \u201cin its discretion\u201d decided appeal filed in violation of Appellate Rule 10).\nThe following facts as found by the trial court are undisputed: At the time of the trial court\u2019s order, the plaintiff was 35 years old and the defendant was 38 years old. The plaintiff was just over 17 years of age and still in high school when she married the defendant. After their marriage, they moved to Ottawa, Canada where the plaintiff finished high school. The plaintiff continued her studies at the University of Ottawa and received a bachelor\u2019s degree and a master\u2019s degree in psychology. The defendant also graduated from the University of Ottawa where he received a bachelor\u2019s degree, a medical doctorate degree, and later received his medical license. Throughout their marriage, the plaintiff was the primary, if not the sole, caretaker of the parties\u2019 home and children. Her efforts enabled the defendant \u201cto complete his education and advance his professional career with minimal interference from family obligations.\u201d Furthermore, the plaintiff was always willing \u201cto sacrifice to whatever extent was necessary in order to assure that the defendant would complete his education and have a successful medical career.\u201d\nIn 1974, the plaintiff developed rheumatoid arthritis. Realizing that her disease might prohibit the plaintiff from working, the parties \u201cconcentrated on developing the defendant\u2019s career in order that they might derive a comfortable standard of living from his medical practice.\u201d At the time of the trial court\u2019s order, the plaintiff suffered from \u201csevere chronic active rheumatoid arthritis.\u201d The disease has totally and permanently disabled the plaintiff. She cannot work. At the time of the trial court\u2019s order, the plaintiff had custody of the parties\u2019 children despite her condition.\nBecause professional and business licenses are personal to their holders, are difficult to value, cannot be sold, and represent enhanced earning capacity, the vast majority of courts which have addressed the issue have held that such licenses are not property for purposes of equitable distribution. L. Golden, Equitable Distribution of Property \u00a7 6.19 (1983). Despite these concerns, however, our courts have recognized that professional and business licenses are property rights. North Carolina State Bar v. DuMont, 52 N.C. App. 1, 15, 277 S.E.2d 827, 836 (1981), modified and aff\u2019d, 304 N.C. 627, 286 S.E.2d 89 (1982) (law license); Parker v. Stewart, 29 N.C. App. 747, 748, 225 S.E.2d 632, 633 (1976) (license to engage in occupation is property right). As the New York Court of Appeals has explained, \u201c[a] professional license is a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder . . . .\u201d O\u2019Brien v. O\u2019Brien, 489 N.E.2d 712, 717 (N.Y. 1985) (medical license). Likewise, our General Assembly has recognized that such licenses are in fact property for purposes of the equitable distribution statute. N.C.G.S. \u00a7 50-20(b)(2) (1987 & Supp. 1991).\nIn North Carolina, \u201c[a]ll professional licenses and business licenses which would terminate on transfer shall be considered separate property.\u201d Id. However, the increases in value to separate property which are attributable to contributions of the marital estate are marital property. Ciobanu v. Ciobanu, 104 N.C. App. 461, 465, 409 S.E.2d 749, 751 (1991). Accordingly, the value of the defendant-employee\u2019s medical license at the date of marriage, if acquired before marriage, or when acquired, if acquired after marriage, is his separate property, and any increase in value to his medical license as of the date of separation which is attributable to marital contributions is properly deemed to have been acquired by the marital estate and is therefore marital property. The trial court should make the factual determinations concerning values with the help of expert testimony. See Poore, 75 N.C. App. at 421, 331 S.E.2d at 271; see also Jones v. Jones, 543 N.Y.S.2d 1016, 1019-20 (Sup. Ct. 1989) (valuing the medical license of a salaried employee by calculating the differential between the physician-employee\u2019s salary and that of average college graduate of employee\u2019s age and racial group without medical license, by projecting that differential out to age 65, and then by reducing that figure to present value). This rule applies, however, only when the spouse is an employee. When the spouse possesses an ownership interest in a business in which he or she uses his or her license, our courts may not classify, value, and distribute both the increased value of the professional license and the value of the goodwill. This is so because whether the classification and valuation is of an owner\u2019s goodwill or of a non-owner\u2019s professional license, each essentially represents a value based on enhanced earning capacity. It would be inconsistent with principles of fairness to allow distribution of both. See B. Turner, Equitable Distribution of Property \u00a7 6.19A, at 183 (Cum. Supp. 1991).\nI realize that valuing such licenses may be difficult, but that problem has not deterred our courts from recognizing that such licenses are property nor has it deterred the General Assembly from identifying and classifying such property as separate. Likewise, difficulties in valuing a medical license cannot support the failure to recognize the marital aspects, if any, of any increases in value of such property. See O'Brien, 489 N.E.2d at 718. Furthermore, the trial court is presently required to value and consider professional licenses in ordering the distribution of marital property. N.C.G.S. \u00a7 50-20(c)(1) (1987 & Supp. 1991); Miller v. Miller, 97 N.C. App. 77, 80, 387 S.E.2d 181, 184 (1990). Finally, the failure to recognize this potential source of marital property would elevate form over substance in that the spouse of a sole medical practitioner would be entitled to share in the enhanced earning capacity (goodwill) of his or her spouse while the spouse of an employee would not be entitled to share in the enhanced earning capacity of the employee-spouse. Such a position runs counter to the fundamental goal of equitable distribution which is to fairly distribute property acquired during marriage by seeking \u201cto effect upon divorce those sharing principles that motivate most couples during marriage.\" Sharp, Equitable Distribution of Property in North Carolina: A Preliminary Analysis, 61 N.C. L. Rev. 247 (1983).\nOther jurisdictions remedy the potentially unfair consequences of cases like this one through recognition of \u201creimbursement alimony,\u201d In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989) (alimony designed to compensate spouse for economic sacrifices directly enhancing other spouse\u2019s future earning capacity and does not end until full compensation achieved), and quasi-contractual actions, Pyeatte v. Pyeatte, 661 P.2d 196, 207 (Ariz. Ct. App. 1982) (court allowed restitution measure of recovery limited to contributions for \u201cliving expenses and direct educational expenses\u201d). I. Ellman, P. Kurtz & K. Bartlett, Family Law ch. 3, at 330-49 (2d ed. 1991). In North Carolina, these potential solutions are arguably impermissible. See N.C.G.S. \u00a7 50-16.2 (1987) (fault ground required for alimony); Britt v. Britt, 320 N.C. 573, 577, 359 S.E.2d 467, 469 (1987), overruled on other grounds, 323 N.C. 559, 374 S.E.2d 385 (1988) (for unjust enrichment claim the \u201cbenefit must not be gratuitous\u201d); Suggs v. Norris, 88 N.C. App. 539, 544, 364 S.E.2d 159, 163, cert. denied, 322 N.C. 486, 370 S.E.2d 236 (1988) (services rendered between spouses presumed gratuitous). In the absence of either our recognition of the increase in value of an employee-spouse\u2019s medical license due to marital contributions as marital property or a valid premarital or separation agreement dealing with the employee-spouse\u2019s enhanced earning capacity, a remedy for the contributing spouse currently available in North Carolina is to treat the employee-spouse\u2019s enhanced earning capacity as a distributional factor. N.C.G.S. \u00a7 50-20(c)(7) (1987 & Supp. 1991) (direct or indirect contribution to help educate or develop career potential); Geer v. Geer, 84 N.C. App. 471, 478, 353 S.E.2d 427, 431 (1987) (career enhancing contributions); Harris v. Harris, 84 N.C. App. 353, 358-59, 352 S.E.2d 869, 873 (1987) (earning potential). When the marital estate is large, the trial court\u2019s discretion in its award based upon this distributional factor may very well lead to the equitable result intended by our equitable distribution statute. When the marital estate is small, however, treating as a distributional factor what should be distributed in the first place achieves nothing. Therefore, when the trial court determines that the increase in value of an employee-spouse\u2019s professional license is marital property, the trial court should distribute that increase. In such cases, however, the trial court should not also consider the increased value as a distributional factor.\nAccordingly, I agree that on remand the trial court should \u201celiminate the value of the goodwill and assign the proper percentage due to each spouse.\u201d However, in keeping with that general mandate, the trial court shall allow the parties to present new evidence which may be necessary for the trial court to identify, value, and distribute the increase in value, if any, of defendant-employee\u2019s medical license due to marital contributions, if any.\n. Measuring the increase in value of a professional license is very similar to the valuation required where a party acquires an interest in a business before marriage. In such cases, the value of the party\u2019s business interest at the date of marriage is his or her separate property and any increase in value of the business interest due to marital contributions is marital property.\n. Likewise, when the trial court determines that goodwill is marital property, the trial court should distribute the value of the goodwill but should not also consider the owner-spouse\u2019s enhanced earning capacity as a distributional factor. .", "type": "concurrence", "author": "Judge GREENE" } ], "attorneys": [ "McElwee, McElwee & Warden, by William H. McElwee, III, for plaintiff-appellee.", "Elliot & Pishko, P.A., by David C. Pishko, for defendant-appellant." ], "corrections": "", "head_matter": "LUCYNA M. SONEK v. MOJMIR J. SONEK\nNo. 9123DC122\n(Filed 4 February 1992)\n1. Divorce and Separation \u00a7 139 (NCI4th) \u2014 equitable distribution \u2014 salaried doctor \u2014 goodwill\nThe trial court erred in an equitable distribution action by finding that defendant\u2019s medical practice at the time of the separation had goodwill to be included as a marital asset where defendant at the time of the separation was a salaried employee of the medical association. A salaried employee who maintains no ownership interest in the particular place of employment does not possess goodwill.\nAm Jur 2d, Divorce and Separation \u00a7 899.\nDivorce and separation; goodwill in medical or dental practice as property subject to distribution on dissolution of marriage. 76 ALR4th 1025.\n2. Divorce and Separation \u00a7 165 (NCI4th) \u2014 equitable distribution-distributive award\nThe trial court\u2019s distributive award to plaintiff in an equitable distribution action was not erroneous. No North Carolina court has held that distributive awards are authorized only when a distribution in kind is impractical, and the only apparent limit to the trial judge\u2019s discretion concerns distributive awards payable for more than six years after the marriage ceases. Furthermore, the trial court found as fact that a complete distribution in kind was not practical and that a distributive award was necessary to achieve equity between the parties.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 930, 931.\n3. Evidence and Witnesses \u00a7 2488 (NCI4th)\u2014 equitable distribution \u2014 physician\u2014expert witness fee\nThe trial court did not err in finding that a physician testified as an expert witness rather than as a fact witness where the main purpose for his testimony was to establish the extent of plaintiff\u2019s future disability due to rheumatoid arthritis. Furthermore, the trial court did not abuse its discretion in awarding $200 per hour to the doctor where he was subpoenaed as a witness, expended approximately three and one-half hours of his time to testify at trial, and claimed that his normal fee for expert testimony was $500 per hour.\nAm Jur 2d, Divorce and Separation \u00a7 942.\n4. Appeal and Error \u00a7 364 (NCI4th)\u2014 child support \u2014 attorney fees \u2014order not included in record \u2014 not considered\nThe Court of Appeals did not reach the merits of defendant\u2019s contention that the trial court erred by awarding plaintiff attorney fees in a child support action where a copy of the child support order was not included in the record on appeal.\nAm Jur 2d, Appeal and Error \u00a7 547.\nJudge GREENE concurring in the result.\nAppeal by defendant from judgment entered 29 September 1990, and order entered 28 September 1990 in WILKES County District Court by Judge Michael E. Helms. Heard in the Court of Appeals 7 November 1991.\nMcElwee, McElwee & Warden, by William H. McElwee, III, for plaintiff-appellee.\nElliot & Pishko, P.A., by David C. Pishko, for defendant-appellant." }, "file_name": "0247-01", "first_page_order": 275, "last_page_order": 286 }