Estate of Keeton, WD

• Decision Date: 28 April 1987
• Docket Number: No. WD,WD
• Parties: In the ESTATE OF Robert Lee KEETON (Deceased). Kyle KEETON, Personal Representative, Respondent, v. Donna M. CHERRY, Appellant. 38663.
• Court: Missouri Court of Appeals

Page 694

728 S.W.2d 694

In the ESTATE OF Robert Lee KEETON (Deceased).

Kyle KEETON, Personal Representative, Respondent, v. Donna M. CHERRY, Appellant.

No. WD 38663.

Missouri Court of Appeals,

Western District.

April 28, 1987.

L. Clay Barton, of Cochran, Tyree, Oswald, Barton & McDonald, P.C., Oak Grove, for appellant.

James D. Worthington, of Aull, Sherman, Worthington & Giorza, Lexington, for respondent.

Before GAITAN, P.J., and SHANGLER and MANFORD, JJ.

MANFORD, Judge.

Appellant appeals from the judgment of the Probate Division of the Jackson County Circuit Court which held that appellant, the named beneficiary on life insurance contracts and a retirement fund account owned by her ex-husband (decedent), was not entitled to the proceeds of said contracts and account by virtue of a property settlement agreement executed by appellant and decedent pursuant to the dissolution of their marriage, five years prior to decedent's death.

The judgment is affirmed.

Review of the judgment in this court-tried case is pursuant to Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and the judgment must be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares and/or applies the law.

Appellant raises two points and charges, in summary, that the trial court erred in entering judgment in favor of respondent because (1) the court erroneously declared and applied the law because the law is that a named beneficiary is entitled to the proceeds of the contract, and (2) the judgment is not supported by substantial evidence and is against the weight of the evidence because the evidence was that decedent intended that appellant be the beneficiary under the policies up until the time of decedent's death.

The pertinent facts are as follows:

Appellant was divorced from her husband (decedent) on May 21, 1979. Pursuant to the dissolution of their marriage, appellant and decedent entered into a property settlement agreement (hereinafter "agreement") which was found by the court to be reasonable and not unconscionable and was incorporated in the judgment entry of the dissolution. At the time of the dissolution, appellant received custody of the parties' two minor children, Kyle David Keeton and Kyla Denise Keeton.

Among other things, the agreement provided as follows:

8. The parties do each represent that they are now and have been teachers under the Missouri State Teachers Association Retirement Plan, the said husband being so employed for a period of approximately 20 years and the wife being so employed for a period of approximately 16 to 17 years, each having separate retirement accounts with the Missouri State Teachers Association, and they do herewith transfer, relinquish and waive any interest in and to their separate accounts, and all of the right, title, interest and benefit thereto.

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17. It is stipulated and agreed between the parties that husband is the present owner of the following listed life insurance policies and it is agreed between the parties that the wife does transfer any right, title, interest and benefit in and to the said life insurance policies that she may have, relinquishing to husband the full ownership or benefit and control thereto, as follows:

(a) The Northern Life Insurance Company policy No. 507630, effective June 7, 1965, for a face amount of $5,000.00; and

(b) The Northern Life Insurance Company policy No. 489-021, effective September 14, 1961, for a face amount of $5,000.00, and

(c) The Central Life Assurance Company policy No. 91286, effective July 15, 1969, with a face amount of $5,000.00; and

(d) The Central Life Assurance Company, policy No. 1215254, effective February 7, 1972, with a face amount of $10,000.00; and

(e) The Central Life Assurance Company, policy No. 1405567, effective July 27, 1976, with a face amount of $5,000.00.

At the time of the dissolution, appellant was the named beneficiary on the retirement plan and on the three insurance policies in question.

During the five years following the dissolution, appellant and decedent remained in contact with one another and it appears that they had a friendly relationship. At the time of decedent's death, in May of 1984, appellant was the named beneficiary on the retirement plan and on three of the insurance policies. From the date of dissolution until the date of his death, decedent did not take any affirmative action toward changing the name of the beneficiary on these policies. After the dissolution and prior to his death, decedent purchased a life insurance policy, designating his daughter, Kyla, as beneficiary, and decedent opened an I.R.A. account, designating his son, Kyle, as beneficiary.

After decedent's death, appellant applied for and received the benefit of the three life insurance policies and the retirement plan. Thereafter, the estate, by and through its personal representative, Kyle Keeton, filed a petition to discover assets of the estate, claiming that the estate was entitled to the proceeds of the insurance policies and the retirement plan. The cause was set for hearing in the probate division.

At the hearing, Warren Lathrop, a friend of decedent's for some thirty-four years, testified that he had told decedent, after decedent's divorce from appellant, of another colleague who divorced his spouse but did not change his retirement beneficiary in case of death. When the colleague died, the former spouse, as named beneficiary, collected the proceeds as opposed to the colleague's widow. Lathrop testified that decedent replied that his (decedent's) teachers' retirement was the way he wanted it and that he (decedent) was not going to change it.

Kyle Keeton testified that he is decedent's son, and that he and decedent had discussed decedent's teachers' retirement plan on two occasions, and that decedent had told him that due to the divorce and the change in appellant's name (she resumed her maiden name after the divorce), that Kyle and Kyla would receive the retirement benefits.

Vicki Ellis testified that she was engaged to decedent at the time of his death, and that she had talked to decedent several times about decedent's retirement plan and insurance policies, and that the decedent was of the belief that the money accrued in these accounts would be left to decedent's children.

Appellant's first point is taken up and, after full consideration, is found to be without merit and is ruled against appellant for the following reasons:

The rule in Missouri is as follows:

[W]here the forms of a separation agreement carried into a divorce decree plainly disclose an intent to remove the named beneficiary in a life insurance policy [or retirement plan] from all rights to the proceeds thereof, such agreement may operate to prevent the named beneficiary from claiming the proceeds upon the death of the insured ...

Bell v. Garcia, 639 S.W.2d 185, 191 (Mo.App.1982), citing Cannon v. Hamilton, 174 Ohio St. 268, 189 N.E.2d 152, 154 (1963).

In the case at bar, the language of the agreement evidences a clear...