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Kikkert v. Kikkert

Decided: February 10, 1981.


On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County.

Fritz, Polow and Joelson. The opinion of the court was delivered by Polow, J.A.D.


[177 NJSuper Page 473] This appeal involves another intricate and perplexing equitable distribution problem which we have not addressed in a reported appellate opinion. We are called upon to decide whether a "vested" pension plan which will provide future monetary benefits to plaintiff husband is equitably distributable. His pension rights are vested in that he will be entitled to enjoy the financial benefits in or about 1990 when he reaches 60 years of age, whether or not he continues in his present employment. Should he fail to survive until then, no pension benefits will be

available except under certain limited circumstances. The elusiveness of the correct resolution of this problem is underscored by the recent publication of two conflicting trial court opinions, Mueller v. Mueller , 166 N.J. Super. 557 (Ch.Div.1979), which held that equitable distribution is not available, and Weir v. Weir , 173 N.J. Super. 130 (Ch.Div.1980), which held that it is:

The trial record is brief and there is little factual dispute. Plaintiff Martin Kikkert, Jr., was 49 years old on the date set for equitable distribution, had completed more than the necessary ten years of employment with Continental Can Company for pension eligibility and will be entitled to full pension benefits at age 62 whether or not he continues in his present employment, provided only that he survives. He may elect reduced early pension benefits at age 60 and there are special provisions for payments in the event of a plant shut-down, layoff or physical disability. The trial judge relying on Mueller , held that such pension rights are not subject to equitable distribution. Weir had not yet been published.

The court is authorized by law "to effectuate an equitable distribution of property, both real and personal which was legally and beneficially acquired by [the parties] or either of them during the marriage." N.J.S.A. 2A:34-23. The critical task is to properly interpret the phrase "legally and beneficially acquired." We have been instructed to employ a "comprehensive" definition and include such property as "is the direct or indirect result of an expenditure of effort on the part of a spouse, . . . ." Painter v. Painter , 65 N.J. 196, 215, 217 (1974). It was therefore concluded that " all property, regardless of its source, in which a spouse acquires an interest during the marriage shall be eligible for distribution in the event of divorce.*fn1 Id. at 217. "[T]he concept of vesting should probably find no significant place in the developing law of equitable distribution

. . . These now customary usages of the concept of vesting are in no way relevant to the question of effecting an equitable distribution . . . ." Stern v. Stern , 66 N.J. 340, 348 (1975). Our inquiry should more properly focus on whether rights or benefits were "acquired" by the parties or either of them during the marriage, rather than on whether they were "vested." Ibid; Pellegrino v. Pellegrino , 134 N.J. Super. 512, 515-516 (App.Div.1975). See Scherzer v. Scherzer , 136 N.J. Super. 397, 401-402 (App.Div.1975), certif. den. 69 N.J. 391 (1976).

"The right to receive monies in the future is unquestionably . . . an economic resource" subject to equitable distribution based upon proper computation of its present dollar value. Kruger v. Kruger , 73 N.J. 464, 468 (1977); Pellegrino v. Pellegrino, supra; Scherzer v. Scherzer, supra; Blitt v. Blitt , 139 N.J. Super. 213 (Ch.Div.1976). Therefore, pension benefits "[a]s a form of deferred compensation earned during coverture" constitute distributable assets to "the extent to which the anticipated benefits will have been generated by the mutual effort of the parties." McGrew v. McGrew , 151 N.J. Super. 515, 518 (App.Div.1977). Still, in all of the decisions permitting equitable distribution of pension rights prior to Mueller and Weir , the pensioner had a present right to receiver some kind of immediate benefit, either by way of an absolute right to reimbursement of the employee's contributions, as in Pellegrino , or the immediate right to receive retirement benefits, as in Kruger , whether or not the employee had contributed to the cost of the plan. In McGrew we held a noncontributory plan equitably distributable although the husband had not yet retired because he was already beyond the age at which he could opt for retirement and thus had "control over it" in the sense that he could enjoy his pension at that time if he so chose. McGrew v. McGrew, supra , 151 N.J. Super. at 518-519.

The trial judge here agreed with the trial court opinion in Mueller and rejected the pension plan for equitable distribution because it could not be reached by the employee for withdrawal

of funds until some time in the future. The Mueller court relied exclusively upon Mey v. Mey , 79 N.J. 121 (1979), which construed the phrase "legally and beneficially acquired" as mandating, for equitable distribution eligibility, a present ability to exercise control over or use the asset. Id. at 124-125.

However, we find that Mey does not apply here nor was it intended to control inclusion or exclusion of pension rights for equitable distribution. Mey involved a trust fund established for a young man prior to his marriage.*fn2 Under the terms of the trust he received the corpus at age 25, by which time he had married. The Supreme Court found that the corpus was legally and beneficially acquired upon the husband's 25th birthday during the marriage. Thus, the corpus of the trust was includible for equitable distribution. Although the opinion equates "beneficially" with "subject to present enjoyment," it specifically distinguishes "[t]he susceptibility of an income interest to equitable distribution" as dealt with in Kruger v. ...

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