Abrego v. Abrego

• Decision Date: 21 May 1991
• Docket Number: No. 75633,75633
• Citation: 812 P.2d 806,1991 OK 48
• Parties: Linda ABREGO, Petitioner, v. Roy F. ABREGO, Respondent.
• Court: Oklahoma Supreme Court

Page 806

812 P.2d 806

1991 OK 48

Linda ABREGO, Petitioner, v. Roy F. ABREGO, Respondent.

No. 75633.

Supreme Court of Oklahoma.

May 21, 1991.

Certiorari to Review a Certified Interlocutory Order; District Court of Tulsa County; Gordon McAllister, Trial Judge.

Pursuant to 12 O.S.1981 § 952(b)(3), the trial court certified the question of whether a lien can be placed on a parent's pre-existing life insurance policy to secure child support payments. We find: 1) that children seeking parental support are not "creditors" within the meaning of 36 O.S.1981 § 3631; 2) that, insofar as accrued payments remain unpaid at death, an action for child support does not abate on the death of a parent; and 3) that pursuant to 43 O.S.Supp.1989 § 116 and this Court's pronouncement in Yery v. Yery, 629 P.2d 357, 363 (Okla.1981), a trial court may place a lien of first priority on a parent's pre-existing life insurance policy to secure payment of child support. The lien may encompass accrued payments which remain unpaid at the time of the parent's death and attorney fees and costs. In absence of legislative directive or an agreed settlement, security may not be required for child support payments accruing after a parent's death.

CERTIORARI PREVIOUSLY GRANTED; ORDER SUSTAINING MOTION IN LIMINE REVERSED; CAUSE REMANDED.

William D. Lunn, Tulsa, for petitioner.

Michael E. Yeksavich, Tulsa, for respondent.

KAUGER, Justice:

The first impression issue presented is whether a lien can be placed on the proceeds of a parent's life insurance policy to compel child support payments. We find: 1) that children seeking parental support are not "creditors" within the meaning of 36 O.S.1981 § 3631; ¹ 2) that, insofar as accrued payments remain unpaid at death, an action for child support does not abate on the death of a parent; and 3) that pursuant to 43 O.S.Supp.1989 § 116 ² and this Court's pronouncement in Yery v. Yery, 629 P.2d 357, 363 (Okla.1981), a trial court may place a lien of first priority on a parent's pre-existing life insurance policy to secure payment of child support. The lien may encompass accrued payments which remain unpaid at the time of the parent's death and attorney fees and costs. In absence of legislative directive ³ or an agreed settlement, ⁴ security may not be required for child support payments accruing after a parent's death. The respondent's request for attorney fees on appeal is denied. ⁵

FACTS

After the petitioner, Linda Abrego/mother, and the respondent, Roy Abrego/father were married in 1985, two children were born. When this cause was filed, the children were ages four and five. On March 31, 1989, the mother filed for a divorce seeking alimony, child custody, child support, and reasonable attorney fees and costs. On May 8, 1989, the trial court ordered the father to pay $443.00 per month as child support and alimony after determining that he earned $1,000.00 a month as a plumbing contractor, and that the mother was paid $300.00 a month as a doctor's assistant. In the spring of 1989, the father was diagnosed with terminal leukemia. He spent several months in the hospital. His hand was amputated; and because of his illness, the father has had difficulty in meeting his child support obligations. On October 25, 1989, the mother filed an application for contempt alleging that the father had failed to pay $2,165.00 in child support. Her application was unresolved when the trial court certified this interlocutory order.

The father owns a term life insurance policy with a face value of $173,000.00. ⁶ On March 14, 1990, the mother filed a pre-trial motion requesting that the trial court place a lien including future payments and any accrued arrearages on the father's life insurance proceeds to ensure payment of child support during the minority of the children. The mother did not seek to impose a lien on the entire amount of the policy; rather, she sought only the amount of money which would be required to pay the accrued arrearages and the children's support during minority. The father filed a motion in limine attempting to bar the presentation of any evidence relating to the insurance policy. Although the trial court denied the mother's motion, the judge certified for interlocutory appeal, pursuant to 12 O.S.1981 § 952(b)(3), ⁷ the question of whether a lien could be impressed on the father's life insurance policy.

I

CHILDREN SEEKING PARENTAL SUPPORT ARE NOT "CREDITORS" WITHIN

THE MEANING OF 36 O.S.1981 § 3631.

On December 10, 1990, a suggestion of death and a motion to dismiss the instant appeal was filed by the father's legal representative. The father's attorney informed the Court that the father died on November 9, 1990. He asserted that pursuant to 36 O.S.1981 § 3631, ⁸ the insurance policy became payable to the named beneficiary (the father's mother) and that it was no longer subject to claims of creditors, e.g. the children. We find this argument unpersuasive. In Aetna Life Ins. Co. v. Bunt, 110 Wash.2d 368, 754 P.2d 993, 999 (1988), the Washington Supreme Court found that claims for child support are not equivalent to the claims of creditors and that statutes like § 3631 were enacted specifically to ensure that an unfortunate debtor has a means to support his/her family. ⁹ In Meadows v. Meadows, 619 P.2d 598, 600 (Okla.1980), we found that statutes exempting property from legal process in the enforcement of a claim were not applicable to a claim for alimony for support. In Meadows, the father argued for exemption of social security disability benefits and workers' compensation benefits based upon statutes containing language similar to § 3631's exemption from creditors. We found, like the Washington Court in Aetna Life, that the principal reason for the statutory exemptions is to protect the dependents of the party claiming the exemption and that support alimony was not a "debt" within the meaning of the statutory provisions exempting the husband's wages from the claims of creditors. We are similarly persuaded that children seeking support are not creditors within the meaning of § 3631.

II

INSOFAR AS ACCRUED PAYMENTS REMAIN UNPAID AT DEATH, AN

ACTION FOR CHILD SUPPORT DOES NOT ABATE ON THE

DEATH OF A PARENT.

On February 4, 1991, we issued an order to the mother to address the issue of whether, because of the death of the father, the instant cause was abatable under Pellow v. Pellow, 714 P.2d 593, 597 (Okla.1985). Although we held in Pellow that a cause of action for divorce terminated upon the death of either spouse, we also found that the wife's appeal concerning the related property division did not abate. Research reveals two cases addressing the abatement of child support on the death of a parent. New Jersey finds that issues of child support do not abate with the death of a parent. ¹⁰ The same cause of action is abatable in Florida. ¹¹ We cannot conclude that here, the children's need for support is any less compelling than was the wife's need to effect an equitable property division in Pellow. Insofar as accrued payments remain unpaid at death, the children's action for child support did not die with their father. On remand, the appropriate parties may be substituted for the father pursuant to the mother's request for substitution of parties.

III

PURSUANT TO 43 O.S.Supp.1989

§ 116

AND THIS COURT'S PRONOUNCEMENT IN Yery v. Yery, 629 P.2d 357, 363 (Okla.1981)

, A LIEN MAY BE IMPRESSED ON A PARENT'S PRE-EXISTING LIFE

INSURANCE POLICY TO SECURE THE PAYMENT OF CHILD SUPPORT.

THE LIEN MAY ENCOMPASS ACCRUED PAYMENTS WHICH REMAIN UNPAID

AT THE TIME OF THE PARENT'S DEATH AND ATTORNEY FEES AND COSTS.

The mother asserts that 43 O.S.Supp.1989 § 116 gives the trial court authority to require the father to maintain a life insurance policy for his children's benefit. Although the Oklahoma statute does not expressly provide that the trial court may require life insurance, it does provide that:

"The court may order a person obligated to support a minor child to post a security, bond, or other guarantee in a form and amount satisfactory to the court to ensure the payment of child support."

The father argued that § 116 is inapplicable. He contended that because the duty to support one's children ceases upon a parent's death, ¹² married parents have no legal obligation to secure the future support of their children, and that to require divorced parents to provide post-mortem support of their children is an affront to the constitutional right of equal protection. The father also alleged that because the responsibility of a nondivorced parent to support a dependent child ends upon that parent's death, a nondivorced parent is free to disinherit a dependent child; and that there is no rational basis for making a difference between nondivorced parents and divorced parents.

A.

EQUAL PROTECTION.

We are not persuaded by the father's equal protection argument. Facially, § 116 implicitly allows an insurance policy to be utilized as security for child support payments. Therefore, we must uphold § 116 unless it is clearly, palpably, and plainly inconsistent with fundamental law. ¹³ In testing the validity of a state statute which differentiates in its treatment of one class paralleled with its treatment of another class, the statute is immune to an equal protection attack if the basis for the differentiation is neither arbitrary nor capricious, and if it bears a reasonable relationship to a legitimate aim. ¹⁴ The Fourteenth Amendment does not require that equal protection be measured by exact equality of classification. ¹⁵ It does require that the classification rest on bona fide, not feigned differences; that the distinction have some relevance to the purpose for which the classification is made; and that the different treatments are not arbitrary. ¹⁶

Section 116 was enacted to ensure that court ordered child support obligations are satisfied. Because divorced parents may be more likely to disinherit a child...