Carter v. Massey, 05-83-00140-CV
| Citation | 668 S.W.2d 450 |
| Decision Date | 08 March 1984 |
| Docket Number | No. 05-83-00140-CV,05-83-00140-CV |
| Parties | Nita Denny CARTER, Appellant, v. Levena Sue Carter MASSEY, Appellee. |
| Court | Texas Court of Appeals |
Thomas L. Cook, Dallas, for appellant.
Nina B. Eldridge, Dallas, for appellee.
Before STEPHENS, VANCE and ALLEN, JJ.
Our opinion of February 21, 1984, is withdrawn. The following is now the court's opinion.
This is an appeal from a summary judgment granted to appellee, Levena Sue Carter Massey, awarding her one-half of the proceeds from a life insurance policy. Levena was married to the deceased-insured, James Willis Carter, in 1962. A term life insurance policy was taken out during the marriage and bi-monthly premiums were paid from community funds. In 1979, the parties were divorced, but no division was made of the property. The parties remarried but were divorced a second time in June 1981. The divorce decree included a property settlement agreement which, among other things, gave all personal property in the possession of each of the parties to that party. There was no specific provision disposing of the term life insurance policy. James married the appellant, Nita Denny Carter, in September 1981. James died in 1982, leaving Nita as his named beneficiary under the insurance policy. Levena filed suit, claiming joint ownership of the policy as a tenant in common with Nita, based on the fact that the divorce decree did not specifically dispose of the policy. Both parties subsequently filed a motion for summary judgment. The trial court granted Levena's motion for summary judgment and awarded her one-half of both the primary and secondary benefits under the policy. The court appointed Nita constructive trustee of the secondary benefits and ordered her to remit one-half of each monthly payment to Levena.
On appeal, Nita contends the trial court erred in awarding Levena one-half of the proceeds under the policy because: (1) Levena has no interest in the policy as it was awarded to James as his sole and separate property in the divorce decree; (2) Levena has no interest in the proceeds of the policy because her interest as a tenant in common in the policy is the value of the policy at the time of divorce, which was only the cash surrender value, which was zero; and (3) Levena has no right to the proceeds because TEX.INS.CODE ANN. art. 3.50, § 2(6) (Vernon 1981), requires that the proceeds shall go to the named beneficiary. We agree with the first contention that the policy was awarded to James in the divorce decree as his separate property and, therefore, Levena has no claim to any proceeds from the policy. Thus, since there are no disputed fact issues present, we reverse the judgment of the trial court and render judgment that Levena take nothing under the insurance policy.
Nita contends that because the divorce decree, incorporating a property settlement agreement, awarded James "all personal property in his possession" and because James had the policy in his possession by having complete control over the policy, the term policy was awarded in the divorce decree as his sole and separate property. We agree.
The right to receive insurance proceeds payable at a future but uncertain date has...
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