Concepcion v. Concepcion

• Decision Date: 18 March 1999
• Docket Number: No. 13-98-61.,13-98-61.
• Citation: 722 NE 2d 176,131 Ohio App.3d 271
• Parties: CONCEPCION, Appellee, v. CONCEPCION, Appellant.
• Court: Ohio Court of Appeals

131 Ohio App.3d 271

722 NE 2d 176

CONCEPCION, Appellee, v. CONCEPCION, Appellant.

No. 13-98-61.

Court of Appeals of Ohio, Third District, Seneca County.

Decided March 18, 1999.

COPYRIGHT MATERIAL OMITTED

Karen S. Behm, for appellee.

David Klucas and Jill Hayes, for appellant.

HADLEY, Judge.

Rose Bequilla Concepcion ("appellant") appeals the decision of the Seneca County Court of Common Pleas overruling her motion for summary judgment and granting summary judgment in favor of Shelly Ann Concepcion ("appellee"). For the reasons set forth below, we affirm in part and reverse in part the decision of the court below.

The facts of the case arose as follows. Appellee and Jonathan Bequilla Concepcion were married on June 5, 1984. Two minor children were born as issue of the marriage.

On December 2, 1990, Mr. Concepcion, the insured, purchased a life insurance policy through the Prudential Insurance Company. The policy (the "SGLI" policy) was issued pursuant to the Servicemen's Group Life Insurance Act of 1965 (the "SGLIA"). The policy carried death benefits in the amount of $200,000. Appellee was named a beneficiary of one-half of the proceeds of the policy. Appellant was also designated a beneficiary of one-half of the proceeds of the policy.

On December 5, 1990, Mr. Concepcion purchased a second life insurance policy (the "AFBA" policy) through the Hancock Mutual Life Insurance Company. The policy carried death benefits in the amount of $100,000. Appellee was designated the sole beneficiary of the policy.

On August 14, 1997, appellee filed a petition for divorce in the Seneca County Court of Common Pleas. At that time, appellee also filed a motion for a temporary restraining order precluding Mr. Concepcion from directly or indirectly changing the beneficiaries of the policies. On August 15, 1997, the trial court granted the order.

On August 24, 1997, in direct contravention of the temporary restraining order, Mr. Concepcion removed appellee as a one-half beneficiary of the proceeds under the SGLI policy. Thereupon, Mr. Concepcion designated appellant as sole beneficiary of the policy.

On September 10, 1997, again in contravention of the temporary restraining order, Mr. Concepcion removed appellee as the sole beneficiary of the AFBA policy. Thereupon, Mr. Concepcion designated appellant as sole beneficiary of the policy.

On September 17, 1997, Mr. Concepcion filed an affidavit with the trial court, under oath and in the presence of a notary public, which indicated that the designated beneficiaries of the policies had not been changed since the temporary restraining order went into effect on August 5, 1997. Mr. Concepcion died on October 13, 1997. At the time of Mr. Concepcion's death the divorce action was pending in the trial court.

On January 30, 1998, appellee commenced the present action to determine the rightful owner of the proceeds of each life insurance policy. Both parties filed cross-motions for summary judgment. Upon reviewing the evidence, the trial court overruled appellant's motion for summary judgment and granted summary judgment in favor of appellee. Thereupon, appellee was adjudged the rightful beneficiary of one-half of the proceeds of the SGLI policy, and was designated the true and rightful beneficiary of all of the proceeds of the AFBA policy.

From this judgment appellant appeals, setting forth the following sole assignment of error:

"The trial court erred by denying appellant's motion for summary judgment and granting Appellee's motion for summary judgment."

Appellant asserts in her assignment of error that the trial court erred in overruling her motion for summary judgment and in granting appellee's motion for summary judgment. For the following reasons, we affirm in part and reverse in part the decision of the court below.

In considering an appeal from the granting of a motion for summary judgment, we review the grant of the motion for summary judgment independently and do not give deference to the trial court's determination. Schuch v. Rogers (1996), 113 Ohio App.3d 718, 720, 681 N.E.2d 1388, 1389-1390. Accordingly, we apply the same standard for summary judgment as the trial court. Midwest Specialties, Inc. v. Firestone Tire & Rubber Co. (1988), 42 Ohio App.3d 6, 8, 536 N.E.2d 411, 413-414.

Summary judgment is proper when, looking at the evidence as a whole, (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence, construed most strongly in favor of the nonmoving party, that reasonable minds could only conclude in favor of the moving party. Civ.R. 56(C); Horton v. Harwich Chemical Corp. (1995), 73 Ohio St.3d 679, 686-687, 653 N.E.2d 1196, 1201-1203.

To make this showing the initial burden lies with the movant to inform the trial court of the basis for the motion and identify those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 273-274. Those portions of the record include the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action. Civ.R. 56(C).

We must now address the merits of this appeal. For purposes of clarity, we will address each policy separately below.

I. The AFBA Policy

Appellant maintains in her assignment of error that the trial court erred in designating appellee as the sole beneficiary of the proceeds of the AFBA policy. For the following reasons, we disagree.

Appellant initially contends that the death of Mr. Concepcion abated the divorce proceeding, thus extinguishing the temporary restraining order issued by the trial court. We first turn to R.C. 2311.21, which provides:

"Unless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slander, malicious prosecution, for a nuisance, or against a judge of a county court for misconduct in office, which shall abate by the death of either party."

Although divorce actions are not mentioned in R.C. 2311.21 as actions requiring abatement upon the death of one or both of the parties, settled authority appears to support the dismissal of such actions. Current v. Current (July 2, 1991), Shelby App. No. 17-90-8, unreported, 1991 WL 128226.

The Supreme Court of Ohio in Porter v. Lerch (1934), 129 Ohio St. 47, 56, 1 O.O. 356, 360, 193 N.E. 766, 770, while observing that divorce actions are not among those that abate pursuant to the statute, held:

"Even in the absence of statute, it stands to reason that where one or both parties to a divorce action die before a final decree of divorce the action abates and there can be no revival. Circumstances have accomplished the primary object sought. 9 Ruling Case Law, 414, 415, Section 214. However, the weight of the authority supports the proposition that where death of one or both of the parties occurs subsequent to a decree of absolute divorce, whereby property rights are fixed, the action does not abate." (Emphasis sic.)

Thus, if a party in a divorce action dies following a decree that determines property rights and grants a divorce but prior to the journalization of the decree, the action does not abate upon the party's death. Id., 129 Ohio St. at 56, 1 O.O. at 360, 193 N.E. at 770; Caprita v. Caprita (1945), 145 Ohio St. 5, 30 O.O. 238, 60 N.E.2d 483. In such circumstances, the trial court is vested with discretion to either dismiss the action or to enter judgment nunc pro tune relating to the time of announcement of the decision. Id.

It is fairly well settled that the death of a party prior to adjudication of the issues in a pending divorce case causes the action to abate and ends any jurisdiction that a judge has over the case except to dismiss it. See State ex rel. Litty v. Leskovyansky (1996), 77 Ohio St.3d 97, 671 N.E.2d 236. The Supreme Court of Ohio in Coffiman v. Finney (1901), 65 Ohio St. 61, 61 N.E. 155 held that an action termed "personal," such as for divorce or for determination and order of an alimony award, generally abates upon the death of one party to the action. However, an action that seeks to enforce fixed rights and liabilities, such as an action to enforce alimony already awarded, may survive the death of that party. Id. Thus, the test set forth by the court in Coffman, in determining whether an action abates upon the death of a party is whether or not the action seeks to enforce fixed rights and liabilities. See, also, Diemer v. Diemer (1994), 99 Ohio App.3d 54, 649 N.E.2d 1285.

In her brief, appellant urges this court to adopt the rationale and holding of the Eighth Appellate District in Hook v. Hook (1987), 35 Ohio App.3d 51, 519 N.E.2d 687. The facts set forth in Hook, which are analogous to the facts of the case sub judice, are as follows. The insured had named his wife as the beneficiary of his life insurance policy. During the pending divorce proceeding the trial court issued a temporary restraining order precluding the husband from changing the beneficiary of the policy. Despite the issuance of the temporary restraining order, the insured changed the beneficiary from his wife to his brother. The trial court, however, awarded the proceeds of the policy to the insured's wife.

Upon appeal, the Eighth Appellate District held that the divorce action abated upon the death of the insured, which also extinguished the ex parte restraining order against him.

In the present case, Mr. Concepcion died while the divorce action was still pending in the trial court. The record reveals that the trial court had yet to reach any decision on the merits of the issues presented therein. No evidence was heard and no facts were adjudicated...