On appeal from the Superior Court of New Jersey, Chancery Division, Union County.
Matthews, Pressler and Petrella. The opinion of the court was delivered by Matthews, P.J.A.D.
On this appeal defendant challenges the equitable distribution of real and personal property which he acquired by intestate succession.
The parties married on October 23, 1954 and separated on November 13, 1976. On that day defendant left the marital home, leaving with his wife the bank books to their joint accounts containing approximately $3,500. Defendant asserts that when he left he told his wife that the monies on deposit were hers. He further explains that no disposition of the marital home was made at that time because their daughter was then unemancipated. The parties have lived apart since November 13, 1976.
On January 25, 1977 defendant's father died intestate. As sole heir, defendant inherited real property, located in Hillside and Neptune, New Jersey, valued at approximately $40,000, and approximately $58,000 in personalty.
Plaintiff instituted this action for divorce on October 6, 1978, alleging, among other matters, extreme cruelty as grounds. The matter was heard by a trial judge on June 18, 1980, at which time the parties entered a partial agreement on the record, under which defendant agreed to pay plaintiff $200 a week in alimony for 18 months beginning July 1, 1980, and $125 a week thereafter. He further agreed to continue to pay the college tuition and related expenses of his daughter and to give $1,000 to plaintiff's attorney as partial payment for counsel fees. Plaintiff agreed to be responsible for her own maintenance commencing July 1, 1980, and for all of her debts.
An order to this effect and granting plaintiff a divorce on the claimed cruelty was entered by the trial judge on June 30, 1980. Equitable distribution of the marital assets was reserved pending
receipt of additional memoranda. The parties agreed, however, and the trial judge ordered, that defendant freeze $15,000 in cash and not encumber or sell the Hillside property inherited from his father.
In a letter opinion dated October 10, 1980 the trial judge ruled that the property which defendant had inherited from his father was includable as a marital asset for purposes of equitable distribution. Subsequently, defendant filed a notice of motion for reconsideration, based upon the signing into law of an amendment to N.J.S.A. 2A:34-23 which excluded from equitable distribution property received by either party "by way of gift, devise or bequest." The trial judge denied the motion for reconsideration.
On this appeal defendant contends that in light of the recent amendment to N.J.S.A. 2A:34-23, given limited retroactive effect by the Supreme Court in Gibbons v. Gibbons, 86 N.J. 515 (1981), it was error for the trial judge to include his inheritance as part of the marital assets subject to equitable distribution. As amended, N.J.S.A. 2A:34-23 in pertinent part provides:
In all actions where a judgment of divorce or divorce from bed and board is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage. However, all such property, real, personal or otherwise, legally or beneficially acquired during the marriage by either party by way of gift, devise or bequest shall not be subject to equitable distribution, except that interspousal gifts shall be subject to equitable distribution.
Though this amendment became effective on December 31, 1980, it is applicable to all "cases presently on direct appeal or in which a final judgment has not ...