The Utah Court of Appeals has created a new type of spousal award in a divorce case involving a woman who helped put her husband through medical school and then was deprived of his increased earning capacity.

The court, in a split 2-1 ruling released Friday, establish what it termed "equitable restitution," an award distinct from traditional alimony or other forms of spouse support, and unprecedented in Utah."The function of equitable restitution is to enable a spouse to share in the newly obtained earning capacity of a former spouse who has achieved that capacity through the significant efforts and sacrifices" of the other partner "which were detrimental to that spouse's development," said Judge Richard Davidson, writing for the majority. He was joined by Judge Judith Billings.

But Judge Norman Jackson, in a sharp dissent, said: "I flag their decision as being at the forefront of judicial activism. I regret that I could not dissuade my colleagues from breaking new ground with the invention of `equitable restitution.' "

The case stems from the 1985 divorce of Karen and Jess Martinez after 17 years of marriage. In the first years of marriage, the husband supported his wife, and later three children, on an annual income of about $10,000 as a Hill Air Force Base mechanic.

The husband later entered medical school, graduating in 1981. Following internship and the establishment of his practice, his income burgeoned to about $100,000 a year, according to court records. But, by then, he and his wife had separated.

Second District Judge Rodney Page in 1985 ordered Martinez to pay $900 monthly in child support and $400 in alimony.

But the Appeals Court said the judge erred in both awards. It ordered the child support increased to $1,800 and the alimony increased to $750 per month.

In addition, the majority ordered the case returned to the lower court for determination of an "equitable restitution" award, based on length of marriage, financial and other sacrifices made by the spouse, disparity in earning capacity, and property accumulation.

"This case is a striking example of a highly paid professional disposing of his wife with a minimum amount of support just as that professional is reaching a level of income for which both the professional and his wife have striven," Davidson said.

The court said, although the wife's financial contribution to the marriage was minimal, other contributions had to be taken into account.

"To hold that plaintiff's only value is the income she generates ignores the value of her contributions in every other aspect of family life." And, the judge said he refused to accept the premise "that the functions of a mother, homemaker and helpmate contribute nothing of value to a family."

But Jackson, in his dissent, attacked the equitable-distribution concept as without precedent in Utah law or state Supreme Court opinions.

He agreed the low alimony and child support awards constitute a "clear and prejudicial abuse of discretion" by the trial court. But, he said, the inequity could be corrected by increasing those and leaving alone the unprecedented "creation of a distinctly new form of cleverly disguised marital property," the value of the husband's profession.