by Susan Rieger
Yours truly,
David Greaves
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
MEMORANDUM
Attorney Work Product
From: Sophie Diehl
To: David Greaves
RE: Matter of Durkheim: Rehabilitation Alimony for Ms. Meiklejohn
Date: April 23, 1999
Attachments:
I spoke briefly on the phone this morning with Maria Meiklejohn, who is back from Hawaii. (Her husband did not change the locks while she was away—or close any more accounts.) I gave her a rundown on the settlement offer, and I’ll forward a copy of it to her with a letter later today.
While she was away, Ms. Meiklejohn thought about her future, specifically her work and career; she came to the conclusion that she ought to go to law school rather than complete the Ph.D. Her thinking went like this: after the divorce, she’ll have to make money (she won’t get alimony forever, and she doesn’t want to live off her father), and the J.D. is the more useful, more remunerative degree. As she put it, “Who’s going to hire a 46-year-old newly minted American studies Ph.D.?” She also thought she’d like practicing law and would be good at it. “I find my divorce mentally stimulating—when it’s not emotionally shattering.” She’d like to go to Mather Law School (and her chances of getting in are very good), but she’d be willing to go to the University of Narragansett. If she gets into Mather, she should go there. Mather is probably the second-best law school in the country (ha!), and the better the school, the greater the job opportunities, particularly for someone her age.
The projected annual tuition for Mather Law (averaged over three years for the academic years 2001–02 through 2003–04) is $30,000; for Narragansett, it’s $14,000. Ms. Meiklejohn thinks Dr. Durkheim should pay the tuition. We could frame the offer to provide both traditional alimony or spousal support for living expenses and rehabilitation alimony or support for tuition at law school. Traditional support would cease with employment at $48,000 a year; rehabilitative support would cease after three (3) years.
I suggested to Ms. Meiklejohn that she might also think about business school and an M.B.A. in public or private management. (The last client of mine who wanted my non-legal advice wanted to know if I could set him up with a drug connection while he was in prison.)
I am finishing up the memo on the value of Dr. Durkheim’s medical degree and the possibility of “reimbursement alimony.” I’ll get it to you before the end of the day. I’ve prepared two versions, excessive and redacted. I’ll send you the redacted and put the longer version in the files.
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
MEMORANDUM OF LAW AND FACT
Attorney Work Product
From: Anne Sophie Diehl
To: David Greaves
RE: Matter of Durkheim: The Value of a Medical Degree
Date: April 23, 1999
Attachments:
Memorandum of Law
The issue here is whether a Narragansett court might consider the value of a medical degree in fashioning a divorce settlement under the Equitable Distribution Statute (EDS), Section 830, Title 33, Narragansett Code.
Prior to the divorce revolution of the 1980s, a medical degree was not treated anywhere as an asset or other property interest to be divided or distributed in a divorce, not having any of the usual attributes of property; i.e., it could not be bought, sold, transferred, conveyed, pledged, attached, assigned, or inherited. Further, it had no exchange value on an open market. A court might award the family home to one of the spouses; alternatively, it could order it sold and distribute the proceeds between the parties according to their financial needs and earning abilities. With a medical degree, a court had no such options. Only the degree’s recipient could practice medicine. See In re Marriage of Graham, 194 Colo. 429, 574 P.2d 75 (1978).
Despite this refusal to consider a medical degree as property, traditional courts nonetheless recognized the value of a medical or other professional degree and took it into account in reaching an equitable divorce settlement, most often as a factor in calculating current and future child support and alimony. They also found that a spouse may be entitled to compensation for her contributions to the acquisition of the other’s degree. In re Marriage of Horstmann, 263 N.W.2d 885 (Iowa 1978); Hubbard v. Hubbard, 603 P.2d 747 (Okl. 1979).
In 1982 the New Jersey Supreme Court explicitly introduced the concept of “reimbursement” alimony, to be awarded in those instances when the contributions by one spouse to the education and training of the other were “made with the mutual and shared expectation that both parties to the marriage [would] derive increased income and material benefits” from the educated spouse’s professional practice. Mahoney v. Mahoney, 91 N.J. 488 (1982). Two years later, a lower New Jersey court expanded the concept of “reimbursement alimony” to distinguish it from ordinary alimony, which usually carries an automatic cutoff event, typically death, remarriage, or a designated term of years. In Reiss v. Reiss, a wife who had put her husband through medical school was awarded reimbursement alimony in a sum of $46,706.70, to be paid in monthly installments of $1,500. When, after receiving the first two monthly payments, the wife remarried, the husband sued to terminate the reimbursement alimony. The court denied his claim, pointing out that, unlike true alimony, which is based on the future needs of the recipient and the anticipated ability of the payer to pay, “reimbursement” alimony recognized a past obligation and called for payment in full. 478 A.2d 441 (Ch. 1984).
For the last 14 years, New York has treated a medical degree as a form of garden-variety marital property, no different from a house or Persian rug or ’89 Honda. In 1985 the New York Court of Appeals ruled that the wife was entitled to a 40 percent interest in her husband’s medical license. She had contributed more than 75 percent of the couple’s total income while the husband completed his education and training, and his medical license was the only tangible asset of their nine-year marriage. O’Brien v. O’Brien, 66 N.Y.2d 576 (1985).
Current Narragansett divorce law plainly allows for these new forms of alimony, if not specifically for “reimbursement” alimony with its debt-like features. The Narragansett Supreme Court has consistently given a liberal interpretation to the EDS principle of “equitable distribution.” Most recently, in the Matter of Lemon, the court awarded a lump sum of “compensatory” alimony to a wife “who had relinquished employment opportunities to accommodate the marital relationship, and was in consequence less able than her husband to support herself.” 293 Nar. 966 (1998). Reimbursing a wife for her financial contributions to his education seems a natural next step. As the court wrote in Lemon:
The legislature clearly intended the [EDS] to protect the spouse with less wealth and lower earning capacity and to insure against a patent disparity between the spouses’ standards of living after divorce. Whether we characterize an award as “compensatory” or “rehabilitation” alimony, or as “a distribution of marital property,” the fundamental principle is the same. The division of assets and the distribution of income must recognize the parties’ relative financial needs and earning abilities as well as their contributions to the wealth of the marriage.
Memorandum of Fact
Dr. Daniel Durkheim, the husband of our client Ms. Maria Meiklejohn, had finished his medical education (both the M.D. and the Ph.D.) before he met Ms. Meiklejohn. Because he took the joint M.D./Ph.D. degree, his education was completely paid for. In 1980, when he and Ms. Meiklejohn began living together, Dr. Durkheim was finishing his training, working as a postdoctoral fellow earning $18,000. All of his salary (after taxes) and then some (from Ms. Meiklejohn) went to pay his child support obligation of $15,000 for his son, Tom, from his first marriage. In 1980, Ms. Meiklejohn earned $19,000 and received from her father a gift of $10,000.
After their marriage, he gave each of them $10,000 a year.
Dr. Durkheim’s post-degree training (postdoc, internship, and residency) lasted eight years, and until he was appointed an assistant professor in 1987 with a salary of $80,000, he never earned more than $30,000 a year; most if not all went, after taxes, to child support. As an example, in 1987, when he was earning $30,000, Ms. Meiklejohn earned $42,000; in addition, she may be credited with the $20,000 annual gift to the couple from her father. It’s plain that, saddled with child support obligations, Dr. Durkheim could not have pursued the kind of elite, ill-paying postdoctoral training he did without his wife’s financial contributions, but would have had to either go deeply into debt or pursue a different kind of medical practice, one more immediately remunerative but unlikely to lead to the outstanding academic career he has had.
Given (i) the financial support Ms. Meiklejohn provided to her husband during the crucial later years of his training; (ii) her “relinquish[ment] of employment opportunities [in NY] to accommodate the marital relationship,” by moving to New Salem, Matter of Lemon; and (iii) the Narragansett Court’s expansive reading of the EDS, it is worth including “reimbursement” alimony in our counteroffer, both as a legitimate demand and a negotiating tactic.
Narragansett Statutes
Title 33 of the Narragansett Code, Sections 801ff.
Dissolution of Marriage, Annulment, and Legal Separation
Sec. 830. Equitable distribution.
In the division of assets, the distribution of income, the assignment of property, the award of child support, the award of alimony, and all other allocations of resources, the court must recognize the parties’ relative financial needs and earning abilities as well as their contributions to the wealth of the marriage.
Evil Thoughts
* * *
From: Sophie Diehl
To: Maggie Pfeiffer
Date: Fri, 23 Apr 1999 23:54:42
Subject: Evil Thoughts 4/23/99 11:54 PM
Dear Maggie—
I am having evil thoughts. It’s almost midnight and I’m still at work; I just finished up a memo for THE DIVORCE. Never get divorced. The things you fight about are so demeaning. Everything comes down to money. I keep thinking of Oscar Wilde’s definition of a cynic as someone who knows the price of everything and the value of nothing. He was talking about a divorce lawyer.
I’ve been drafting an email to DG in my head; it oozes artless innocence:
Dear David—
Have you heard anything from my mom? She told me she so enjoyed meeting you. We could do it again sometime when she’s in town.
Yours,
Sophie
I can’t stop myself from thinking about it when it’s late and I’m tired. I find my thoughts turning dark and mean. They are not behaving well. And of course, neither am I.
I haven’t seen or heard from Harry in days. He sent me an email the epitome of short and sweet, with a quote from The Real Thing (Henry on happiness) last Saturday, but since then nothing. No answer at his place. Is he alive?
Love,
Sophie
* * *
Re: Evil Thoughts
From: Maggie Pfeiffer
To: Sophie Diehl
Date: Sat, 24 Apr 1999 10:33:09
Subject: Re: Evil Thoughts
4/24/99 10:33 AM
Dear Sophie—
DO NOT, repeat, DO NOT send an email like that to David. You will regret it. I know you’re hurt and maybe a little jealous too, but you’ll wreck your relationship with him if you go through with it. DO NOT DO IT.
If you need to hash it out with one of the miscreants, hash it out with your mother. (I’m not recommending this; I’m only saying that talking to her is better than going after him.) Of course, if you talk to your mother, you won’t do the damage you’d do if you sent that email to David. She won’t be in the least embarrassed, only annoyed. And she’ll let you have it, with both barrels. (Here I go, channeling Elisabeth Diehl.) She’ll tell you to grow up, mind your own business, and get on with your own life. She’ll say you’re not the only one who’s allowed to behave badly now and again. And she’s right.
Harry left New Salem after closing night on the 19th. He said he had an emergency in NYC and took off at 4 am right after the set was struck. He looked tired and worn and worried and sad. Something was wrong. I thought you knew.
I am too tired to write another word. I need to go to bed. Matt and I went to a party in NY last night and didn’t get home until 3. Don’t do anything stupid or rash. I’m sorry if I’ve been rough here and hurt your feelings; I haven’t the energy to be more tactful. You’ve got to finish up this divorce. Can’t you read them the riot act and tell them to shape up and get this thing over? It’s not good for you. (It must be truly terrible for them.)
Love,
Maggie
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
ATTORNEYS AT LAW
Valuing a Medical Degree
* * *
From: Fiona McGregor
To: David Greaves
cc: Sophie Diehl
Date: Mon, 26 Apr 1999 12:32:07
Subject: Valuing a Medical Degree 4/26/99 12:32 PM
David,
I just saw Sophie’s memo on valuing a medical degree. There’s a case now on appeal to the Narragansett Appellate Court, 2nd Division, Petrus v. Petrus, No 1998-456. I hope she didn’t spend too much time on the memo or charge the clients too much for the work. The briefs pretty much lay out both sides. I’m not sure how she missed it. Could she have forgotten to look at Narragansett cases? I’ve cc’ed her.
Fiona
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
ATTORNEYS AT LAW
April 27, 1999
Ray Kahn, Esq.
Kahn & Boyle
46 Broadway
New Salem, NA 06555
Dear Ray:
I have given copies of your letter of April 19 and Dr. Durkheim’s settlement offer to my associate, Anne Sophie Diehl, who will respond to the offer in detail after she has discussed it with our client, Maria Meiklejohn, and reviewed all the relevant documentary evidence. Ms. Diehl is the person best acquainted with the case and is accordingly the best person to answer you. You can expect her letter and Ms. Meiklejohn’s counteroffer as soon as we are confident that we have a full and accurate picture of the family’s financials. We will move as quickly as we can—we too would like to see the matter settled expeditiously—but we want to give Dr. Durkheim’s offer the attention it deserves and craft a counteroffer that represents the best interests of our client and their daughter, Jane.
While we agree that Ms. Meiklejohn’s knowledge of the couple’s financial situation is fairly complete, we do not believe we can in good faith dispense with discovery. It would be irresponsible of us to proceed without knowing that we have the best information available to us. Following usual firm policy in cases of this sort, we have asked Patrick O’Dell, a private investigator the firm has on retainer, to conduct a complete investigation of the couple’s assets and property. We have also lined up John Katz, a forensic accountant with Addison & Co., to review all the materials and information produced through the discovery process and Mr. O’Dell’s inquiries. Mr. Katz will also be able to provide an actuarial assessment of the annual gifts Bruce Meiklejohn has made to the couple over the 16 years of their marriage and a statement on the present and future value of Dr. Durkheim’s medical degree. On this latter point, we believe Ms. Meiklejohn has a right to some form of reimbursement alimony for the contributions she made to her husband’s career. As you know, she supported him for eight years while he was doing his postdoc, internships, and residency; she also gave up her career in N
ew York to move with him to New Salem.
There are other steps we need to take as well. We will want a current assessment of the St. Cloud Street house. We have asked Laura Bucholtz of RealProperties Inc. to conduct it. I don’t think there’s anyone in New Salem who knows the high-end market better than she does. Last year she sold nine homes in the St. Cloud Street area, and she currently is acting as broker for three others.
I am enclosing our discovery requests with this letter. I don’t imagine that Dr. Durkheim has any secret Swiss bank accounts, but if he does, you will of course let us know. We will respond promptly to any discovery requests you make of Ms. Meiklejohn.
Yours truly,
David Greaves
Commonwealth of Narragansett
Family Court
County: Tyler Docket No: 99-27
Notice of Request
Mandatory Disclosure & Production
Daniel E. Durkheim Plaintiff
v.
Maria M. Durkheim Defendant
Now comes the defendant Maria M. Durkheim by her attorneys, and serves a Notice of Request for Mandatory Disclosure and Production on the plaintiff Daniel E. Durkheim for the following records and documents:
1. Three (3) years tax returns, including corporate and partnership, April 1996 to April 1999
2. Three (3) years IRS 1099s and K-1s, April 1996 to April 1999
3. Three (3) years pay stubs (or other evidence of income), April 1996 to April 1999
4. Three (3) years records of NIH and all other grants and awards, public and private, April 1996 to April 1999
