Griffin, J.c.c., Temporarily Assigned.
One of the issues to be resolved in this divorce action is whether the accumulated earnings in defendant husband's noncontributory pension and profit sharing plans with George S. McLaughlin Associates, Inc., are subject to equitable distribution between the parties pursuant to N.J.S.A. 2A:34-23. Although this subject has been considered quite recently in Pellegrino v. Pellegrino , 134 N.J. Super. 512 (App. Div. 1975), and White v. White , 136 N.J. Super. 552 (App. Div. 1975), there remains some confusion whether the type of the plan, i.e. , contributory or noncontributory, is the determinative factor of equitable distribution. Since copies of the relevant plans were not introduced into evidence at the trial, counsel have submitted them at the court's request as a joint exhibit.*fn1
N.J.S.A. 2A:34-23 provides in part that:
In all [divorce] actions * * * the court may make such award or awards * * * to effectuate an equitable distribution of property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage.
Has the defendant "acquired," within the meaning of the statute, the funds currently held in trust for him under the plan?
The Supreme Court gave extensive consideration to this part of the statute in Painter v. Painter , 65 N.J. 196 (1974), where it held that " all property, regardless of its source * * * shall be eligible for distribution in the event of divorce." 65 N.J. at 217; [emphasis in original]. Interpreting the word "acquired" the court wrote:
The only conclusion which can be drawn from this language is that the word "acquired" should be given a broad inclusive meaning rather than a narrow one.
Some courts have utilized the concept of "vesting" to determine whether a person has "acquired" property. Pellegrino v. Pellegrino, supra; Tucker v. Tucker , 121 N.J. Super. 539 (Ch. Div. 1972). However, this was specifically disapproved of in Stern v. Stern , 66 N.J. 340, 348 (1975), as being "in no way relevant" to equitable distribution.
In light of the holdings in Painter and Stern , the problem facing this court is one of statutory interpretation. Where should the line be drawn? On one side is property which, although not without value, constitutes an expectation of receipt of benefits or is subject to a contingency. Tucker v. Tucker, supra; Williamson v. Williamson , 203 Cal. App. 2d 8, 21 Cal. Rptr. 164 (D. Ct. App. 1962); White v. White, supra. On the other side of that line is property which, although not cash in hand, is not subject to a contingency, has a reasonably discernible value, and awaits but the decision of the owner to take actual possession. Pellegrino v. Pellegrino, supra; See v. See , 64 Cal. 2d 778, 51 Cal. Rptr. 888, 415 P. 2 d 776 (Sup. Ct. 1966); Angott v. Angott , 462 S.W. 2d 73
(Tex. Civ. App. 1970). An analogy could be drawn at this point to the principle of constructive receipt of income under our income tax laws, although clearly whether such property is taxable is not controlling on the question of distribution. See Internal Revenue Code , 1954, § 451, and Internal Revenue Code Regulations , § 1.451-2. Property which falls in this latter category has been "acquired" by the parties and should be subject to equitable distribution.
Both parties agree that defendant's company has contributed $49,000 to the plan on his behalf while defendant himself has made no voluntary contributions. Furthermore, there is no disagreement that under the rules of the plan 50% of this amount ($24,500) had vested (a term used within the plan itself) as of the date the complaint was filed. Distributions under the plan are governed by Article 5 and may occur upon any of four events: ...