dissenting. In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), this court took a significant step forward in interpreting marital property under Ark. Stat. Ann. § 34-1214 (1985 Supp.), modelling our approach after the case of In re Marriage of Brown, 15 Cal.3rd 838, 126 Cal.Rept. 633, 544 P.2d 561 (1976). In Day v. Day we pointed out that we were not adopting an inflexible rule with respect to pension plans, but that our marital property law allows leeway for the exercise of the chancellor’s best judgment in providing that “all marital property shall be divided equally unless the court finds such a division to be inequitable,” adding:
What we do hold is simply that earnings or other property acquired by each spouse must be treated as marital property, unless falling within one of the statutory exceptions, and neither one can deprive the other of any interest in such property by putting it temporarily beyond his or her own control, as by the purchase of annuities, participation in a retirement plan, or other device for postponing full enjoyment of the property.
We have followed the Day decision in several later cases: Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986); Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984); Marshall v. Marshall, 285 Ark. 426, 688 S.W.2d 279 (1985), as has the Court of Appeals, Womacks v. Womack, 16 Ark.App. 139 (1985). Thus, in Day, we departed from earlier decisions that had looked largely to the question of vesting in determining whether one spouse had a marital interest in personal property of the other spouse: Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982); Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980); Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980); and Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983).
Here, the chancellor held that the termination benefits were marital property to be divided in kind, as in Day v. Day, supra, so that Mrs. Lawyer would receive her share of the benefits only when and if, Mr. Lawyer receives them.
These termination benefits, which became vested in 1975 though not mature until Mr. Lawyer’s employment terminates, are nothing more than deferred compensation, accruing, at least in part, during the marriage of these parties. That was the factor which prompted the court to hold as it did in In re Marriage of Brown, supra, and which should guide us to the same conclusion.
I disagree that Skaden v. Skaden, 19 Cal.3d 679, 139 Cal. Rept. 615, 566 P.2d 249 (1977) can be so easily disregarded as the majority opinion suggests. It has precedence for us in light of our dependence on Brown. The trial judge in Skaden held that termination benefits virtually identical to the benefits in this case were not divisible property. The Supreme Court reversed, finding on the strength of the Brown decision that the benefits were a form of deferred compensation as opposed to a mere expectancy, leaving only to the trial court on remand whether to divide the benefits in kind as received, or on the basis of present value. We should, I submit, adopt a similar position.
We have said that chancellors are given broad powers under § 34-1214 to distribute property in divorce, Williford v. Williford, 280 Ark. 77, 655 S.W.2d 398 (1983) and that the legislative purpose behind § 34-1214 should not be frustrated by drawing controlling differences between pensions vested and currently payable and those that are vested but payable in the future. Day v. Day, supra. If we are to be consistent, we should affirm the chancellor.