Barnett v. Barnett
| Decision Date | 21 December 1998 |
| Docket Number | No. 01-97-00656-CV,01-97-00656-CV |
| Citation | 985 S.W.2d 520 |
| Parties | Marleen Kovalchik BARNETT, Appellant, v. Dora Ernestine Luck BARNETT, Individually and as Independent Executrix of the Estate of Christopher Alan Barnett, Deceased; Lori Williams; Lisa Chavez-West; Charlotte Pett; Patricia Graham Irvine; William J. Gosch; Nancy Gosch; Joseph Gosch; Alfred Gosch; Russell D. Irvine, Sr.; Mark D. West; Carol Jean Avant; and Ann Dyess, Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Lois Watson, Houston, for appellant.
George W. Dana, Houston, Robin Vaught Dwyer, Seguin, for appellees.
Panel consists of Justices MIRABAL, O'CONNOR, and NUCHIA.
The appellant, Marleen Barnett (the Wife), is the widow of Christopher Barnett. The appellee, Dora Barnett (the Mother), is Christopher's mother. The Wife appeals the partial summary judgment rendered in favor of the Mother and others and the denial of her applications for family allowance and allowance in lieu of exempt property. The Mother appeals a jury verdict in favor of the Wife. We affirm in part, reverse in part and remand in part.
The Wife and Christopher were married August 19, 1989. Christopher died on January 24, 1994. At the time of his death, the Wife and Christopher were separated and in the midst of a divorce proceeding. The divorce was characterized by allegations of cruelty, excessive drinking, and adultery. During the pendency of the divorce, Christopher executed a will naming the Mother as principal devisee of his estate and as independent executrix.
Before and during their marriage, Christopher worked for Houston Industries, Incorporated (HL & P). Christopher was enrolled in a life insurance plan with HL & P, for which he had authorized payroll deductions to pay the premiums. Under the HL & P plan, Christopher had three life insurance policies, one issued by the Prudential Life Insurance Company (G-87560) and two by The Home Insurance Company (GT0020940 and GT0020941). Christopher also had a State Farm Insurance Company policy on his truck, which policy paid a $5,000 death benefit. Christopher's estate was the beneficiary of all his HL & P policies.
After Christopher's death, Prudential, Home Insurance, and State Farm paid the policy proceeds to the Mother as independent executrix of Christopher's estate. From the insurance proceeds, the Mother distributed $164,000 to Lori Williams; $164,000 to Lisa Chavez-West; $10,000 each to Charlotte Pett, Patricia Graham, Jerry Gosch, Nancy Gosch, Joe Gosch, and Alfred Gosch; $5,000 to Russell Irvine, Sr.; $20,000 to Mark and Christy Misner; $10,700 to Ann Dyess; and $1,000 to Ann Dyess's grandson. Lisa Chavez-West transferred part of her distribution to Carol Avant and others.
The Wife sued the Mother (individually and as independent executrix of Christopher's estate), Lisa Chavez-West, Mark West, Lori Williams, Charlotte Pett, Patricia Graham, Russell Irvine, Mark Misner, Christy Misner, 1 Jerry Gosch, Nancy Gosch, Joe Gosch, Alfred Gosch, 2 Ann Dyess, and Carol Avant. The Wife contended that (1) of the total insurance proceeds ($637,955.93), the Wife was entitled to $318,977.97, plus pre-judgment interest; (2) the Mother refused to partition and distribute to the Wife a one-half interest in Christopher's community estate; and (3) the Wife was entitled to a family allowance and an allowance in lieu of exempt property.
The Wife moved for partial summary judgment against the Mother and the West defendants asking the trial court to determine that (1) Christopher's insurance policies were community property, (2) the Wife did not forfeit her interest in the Prudential and Home Insurance policies under the Employee Retirement Income Security Act (ERISA), 29 U.S.C.A. § 1001, et. seq., and (3) the Wife was deprived of her community interest in the insurance proceeds through constructive fraud. The Wife also filed a motion for partial summary judgment against Dyess asking for the same relief on the same grounds.
The Mother and the West defendants moved for partial summary judgment, asking the trial court to dismiss the Wife's causes of action against them relating to recovery of the proceeds of the life insurance policies. They asserted that (1) because the Prudential and Home Insurance policies were subject to the provisions of ERISA, state community property law did not control and (2) ERISA aside, these policies were Christopher's separate property. The Gosch Defendants also moved for partial summary judgment, asking for the same relief on the same grounds. The defendants did not dispute the community estate's right to reimbursement for premiums paid during the marriage. The defendants sought summary judgment on the Prudential and Home Life policies only; they did not include the State Farm policy in their request for relief. Neither Dyess nor Avant filed motions for summary judgment.
The trial court (1) denied the motions for partial summary judgment filed by the Wife; (2) granted the motions for partial summary judgment filed by the Mother, the West defendants, and the Gosch defendants; (3) denied all the Wife's claims against the Mother, both individually and as executrix, seeking recovery of the life insurance proceeds; (4) dismissed all the Wife's claims against the West defendants, the Gosch defendants, and Dyess based upon their receipt of the proceeds of the life insurance policies; and (5) left the issue of premium reimbursement for later disposition.
After the disposition of the motions for summary judgment, the case proceeded to trial before a jury. After the Wife rested, the trial court granted motions for directed verdicts to all of the defendants, except the Mother, as to the Wife's allegations of civil conspiracy, breach of fiduciary duty, and constructive fraud. The trial court also granted a directed verdict to all defendants as to the Wife's cause of action based upon the existence of a constructive trust on Christopher's life insurance proceeds.
At the end of trial, the jury responded to the jury questions by finding as follows:
(1) The Mother willfully or with reckless disregard converted the Wife's community property (the Wife was awarded $29,200 in damages).
(2) The Mother willfully or with reckless disregard committed waste of the Wife's community property (no award of damages).
(3) The Mother spent $36,520.75 of community property on Christopher's separate rental properties.
(4) The Wife's community property received $26,500 in income from Christopher's separate rental property.
(5) The Wife incurred attorney's fees in the amount of $40,000.
The trial court signed a final judgment (1) incorporating its disposition of the partial summary judgments, (2) ordering that the Wife take nothing as against all the defendants except the Mother, (3) denying the Wife's applications for family allowance and for an allowance in lieu of homestead and exempt property, and (4) granting the Wife a judgment against the Mother for (a) one-half of the Prudential and Home Insurance premiums, plus prejudgment interest; (b) the conversion of $29,200, plus prejudgment interest; (c) reimbursement of the Wife's community property spent to enhance Christopher's separate rental property in the amount of $10,020.75, plus prejudgment interest; and (d) attorney's fees in the amount of $40,000, plus costs of court.
In points of error one and two, the Wife asserts the trial court erred in rendering summary judgment in favor of the Mother, the West defendants, and the Gosch defendants. The Wife argues that (1) although ERISA applies to life insurance beneficiary designations, it does not nullify Texas community property law applicable to the community estate's interest in the proceeds of the insurance and (2) Christopher's insurance policies were community property. The Wife also asserts the defendants' summary judgment evidence was inadmissible.
In point of error four, the Wife asserts the trial court erred in denying her motion for partial summary judgment. The Wife moved for summary judgment on the grounds that (1) she was entitled to one-half of the proceeds of the Prudential, Home Insurance, and State Farm policies as her community property interest; (2) the Mother, as executrix, breached her fiduciary duty to her; (3) the Mother, individually, converted her community property; (4) the Mother's conveyance of the proceeds to the other defendants was fraudulent; and (5) the other defendants who received the proceeds from the Mother should be declared constructive trustees for the Wife's benefit.
Summary judgment is proper when a defendant establishes, as a matter of law, there are no issues of material fact concerning one or more of the essential elements of the plaintiff's cause of action. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Jones v. Legal Copy, Inc., 846 S.W.2d 922, 924 (Tex.App.--Houston [1st Dist.] 1993, no writ). We will consider all summary judgment grounds on which the trial court rules, that the Wife preserves for appellate review, and that are necessary for final disposition of the appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996). We will affirm the summary judgment if any of the theories advanced in the motion for summary judgment is meritorious. Id. We will not consider any ground for reversal that was not expressly presented to the trial court by written motion, answer, or other response to the motion for summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979); Jones, 846 S.W.2d at 924.
When both parties move for summary judgment, each must carry its own burden as the movant, and, in response to the other party's motion, as the nonmovant. Knighton v....
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