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Kikkert v. Kikkert

Decided: December 1, 1981.

MARTIN KIKKERT, JR., PLAINTIFF-APPELLANT,
v.
ELIZABETH KIKKERT, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 177 N.J. Super. 471 (1981).

For affirmance -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. Pashman, J., concurring. Pashman, J., concurring in the result.

Per Curiam

The judgment is affirmed substantially for the reasons expressed in the opinion of the Appellate Division reported at 177 N.J. Super. 471 (1981).

PASHMAN, J., concurring.

In holding today that "vested" but unmatured private pensions are subject to equitable distribution, the Court reaffirms its commitment to a "comprehensive" application of equitable distribution principles to include " all property, regardless of its source, in which a spouse acquires an interest during the marriage." Kikkert v. Kikkert, 177 N.J. Super. 471, 474 (App.Div.1981), aff'd o.b., 88 N.J. 4 (1981), quoting Painter v. Painter, 65 N.J. 196, 215, 217 (1974). The Court's unanimous opinion adopts the holding in Kruger v. Kruger, 73 N.J. 464, 468 (1977), that "[t]he right to receive monies in the future is unquestionably . . . an economic resource" acquired during the marriage and therefore "owned" by both parties to the divorce. Having dissented in Kruger, 73 N.J. at 473, I now write in concurrence to explain my positions in Kruger and in this case. Important distinctions exist between the federal military benefits at issue in Kruger and the private unmatured pension at issue here. However, I join today's unanimous opinion not only because of differences between Kruger and this case, but because after careful thought I have concluded that the Kruger majority's comprehensive application of equitable distribution law represents the more reasonable view in light of our statute. N.J.S.A. 2A:34-23.

The 1971 amendments embodied in N.J.S.A. 2A:34-23 were the first general revision of this State's divorce laws since 1907. L. 1971, c. 212. See L. 1967, c. 57, 144-45 (creating a Divorce Law Study Commission); Painter v. Painter, 65 N.J. 196, 202-03

(1974). The new statute authorized the courts "to effectuate an equitable distribution of property . . . legally and beneficially acquired by [the parties] . . . during the marriage. . . ." N.J.S.A. 2A:34-23. This Court consequently was required to decide when property should be considered "acquired" during the marriage and therefore equitably owned by both spouses. We repeatedly have construed the phrase "legally and beneficially acquired" broadly to include a wide range of economic resources in the equitable distribution of the parties' property. See, e.g., Stern v. Stern, 66 N.J. 340 (1975) (accounts receivable of husband's law firm); Mey v. Mey, 79 N.J. 121 (1979) (corpus of trust that became available to husband during marriage); Gauger v. Gauger, 73 N.J. 538 (1977) (joint tenancy with right of survivorship created before the marriage); Kruger v. Kruger, 73 N.J. 464 (1977) (federal military retirement and disability pay).

Not every type of property that this Court has found to be subject to equitable distribution is still covered by our equitable distribution law. Inherited gifts, which the Court subjected to equitable distribution in Mey v. Mey, supra, have been excluded from the law's coverage by an amendment to N.J.S.A. 2A:34-23 which exempts property acquired by gift, devise or inheritance. L. 1980, c. 181, ยง 1, eff. Dec. 31, 1980. See Gibbons v. Gibbons, 86 N.J. 515 (1981). Likewise, the United States Supreme Court recently held in McCarty v. McCarty, 453 U.S. 210, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981), that because Congress intended federal military pensions to belong solely to the retired veteran, the Supremacy Clause precludes the states from subjecting such monies to equitable distribution. Kruger v. Kruger has therefore been partially overruled, though only with respect to the federal military retirement and disability pay at issue there.

The Supreme Court decision in McCarty and the recent legislative exemptions to the equitable distribution law demonstrate that comprehensive application of equitable distribution is not the only reasonable approach to fairly dividing property acquired during a marriage. Certain property, though acquired during the marriage, reasonably can be found to belong to only

one of the spouses. Likewise, some property received during the marriage should be considered to have been "acquired" before or after the marriage for purposes of the statute, just as some property received after the marriage should be considered as acquired during the marriage. The language at issue, "legally and beneficially acquired . . . during the marriage," is far from self-explanatory. This Court must continually interpret that phrase in view of the underlying legislative policies.

To the extent that my dissenting view in Kruger recognized the intent of Congress regarding military retirement pay, it correctly states the law of equitable distribution as required by the federal Constitution. My dissent in Kruger adopted the minority opinion of Judge Botter in the Appellate Division, who correctly noted the purpose of federal government pensions in inducing faithful career service, and the unique restrictions that Congress has placed on retirement and disability benefits paid through the Veteran's Administration. 139 N.J. Super. at 423-24 (Botter, J., dissenting). The Supreme Court focused upon these and other similar aspects of federal military benefits in excluding them from equitable ...


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