Hook v. Hook

• Decision Date: 13 April 1987
• Docket Number: No. 51626,51626
• Citation: 35 Ohio App.3d 51,519 N.E.2d 687
• Parties: HOOK, Appellee and Cross-Appellant, v. HOOK, Exr., Appellant and Cross-Appellee, et al. *
• Court: Ohio Court of Appeals

Page 51

35 Ohio App.3d 51

519 N.E.2d 687

HOOK, Appellee and Cross-Appellant, v. HOOK, Exr., Appellant and Cross-Appellee, et al. ^*

No. 51626.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 13, 1987.

Syllabus by the Court

Where a wife is named as the beneficiary on her husband's life insurance policy and an ex parte temporary restraining order entered in an action for divorce and division of property prohibits him from changing the beneficiary of the policy, but where the husband changes the beneficiary in violation of the court's order prior to his death and the final adjudication of the parties' rights, his death abates the action and the ex parte temporary restraining order (since an action for divorce is one in personam ) and the life insurance proceeds are properly payable to the most recently designated beneficiary.

Angela G. Carlin and Karen A. Davey, Cleveland, for appellee and cross-appellant.

Tom L. Johnson and Charles Redmond, Cleveland, for appellant and cross-appellee.

PRYATEL, Presiding Judge.

This appeal arises from the judgment of the court of common pleas awarding plaintiff-appellee and cross-appellant Agnes Hook the proceeds of a life insurance policy.

Agnes (sixty) and Donal Hook (sixty-one) were married on December 23, 1970. Prior to their marriage, the parties entered into an antenuptial agreement. In Hook v. Hook (1982), 69 Ohio St.2d 234, 23 O.O.3d 239, 431 N.E.2d 667, this agreement, which divested each party of any legal claim to the other's property, was found to be valid.

In August 1974, Donal filed a divorce action in DuPage County, Illinois. In her answer to his complaint, Agnes admitted the existence of the antenuptial agreement. ¹ Eventually, this action was dismissed.

On June 27, 1977, Donal filed an action for divorce in Cuyahoga County. On July 26, 1977, Agnes filed her answer and counterclaim seeking divorce, alimony, ² property division and a request for an ex parte temporary restraining order. She did not mention the (court-upheld) antenuptial agreement entered into on the morning of the marriage (in 1970). Upon the filing of her answer and counterclaim, a temporary restraining order was issued ex parte barring Donal, inter alia, from changing beneficiaries, and/or cashing in or allowing noted insurance policies to lapse. Among the seven insurance policies which were the subject of the restraining order was the following:

"g. Unknown life insurance policies with unknown companies."

On August 2, 1977, Donal filed an answer to the counterclaim in which he set forth the affirmative defense that on December 23, 1970, an antenuptial agreement was entered into whereby Agnes waived any interest to Donal's assets. Donal attached a copy of the agreement.

At the time that the restraining order was issued, Donal was the owner and named insured on a life insurance policy (which reserved to him the right to change the beneficiary) issued by the United States government with Agnes the named beneficiary. In disregard of the temporary ex parte restraining order, on September 8, 1977, Donal changed the beneficiary from Agnes to his needy brother, Gerald Bliss Hook.

On September 12, 1977, Donal filed a motion for dissolution of the restraining order asserting that the antenuptial agreement entered into between the parties barred Agnes from any and all rights or interest in Donal's property.

A month and one half later (October 28, 1977), and prior to any court ruling on the dissolution of the ex parte restraining order, Donal died. ³

On December 13, 1977, Gerald Bliss Hook, as the designated beneficiary under the decedent's insurance policy provided by the United States government, collected the sum of $38,956.06. ⁴

On January 31, 1978, Agnes filed a claim against Donal's estate pursuant to R.C. 2117.06 seeking payment of the insurance proceeds. When this claim was rejected, Agnes filed a declaratory action in the common pleas court, which found that Agnes was the only named beneficiary legally entitled to the proceeds. The court held that any change of beneficiary was null and void while a temporary restraining order was in effect.

The court entered judgment for Agnes against the estate of Gerald Bliss Hook for the sum of $38,956.06, together with interest from the date of judgment plus costs.

The executor for the estate of Gerald Bliss Hook timely appeals. Agnes cross-appeals.

Assignment of Error

"I. The trial court committed prejudicial error by awarding the plaintiff-appellee a judgment for $38,956.06 against the estate of Gerald Bliss Hook, appellant, whose decedent was the beneficiary of an insurance policy in like amount on the life of plaintiff-appellee's late husband, Donal D. Hook, solely on the basis that said husband had changed the beneficiary of that insurance policy from his wife to his brother, Gerald, in violation of an ex parte restraining order during a pending divorce action."

Appellant contends that an action for divorce is an in personam action and that the death of Donal abated the divorce action. We agree. As the Supreme Court of Ohio has stated in Porter v. Lerch (1934), 129 Ohio St. 47, 56, 1 O.O. 356, 360, 193 N.E. 766, 770:

" * * * 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. * * * 9 Ruling Case Law, 414, 415, Section 214. * * * "

"Such rationale rests upon the premise that the object sought to be accomplished by the final decree, to wit, the dissolution of the marriage relation, is already accomplished by the prior death. See [Porter, supra ]; Annotation (1936), 104 A.L.R. 654." Miller v. Trapp (1984), 20 Ohio App.3d 191, 192, 20 OBR 235, 237, 485 N.E.2d 738, 739.

However, appellee maintains that an action for divorce and division of property does not require abatement upon the death of a party prior to the entry of the decree; rather, the court is vested with the discretion to either dismiss the action or to enter judgment nunc pro tunc. See id. at the syllabus. An examination of Miller reveals that the trial court had heard the evidence before granting the wife a divorce. In Miller the decision entry memorandum had been filed prior to the death of the wife; all that remained was the entry of the final decree.

In the instant case, the court had not heard any evidence upon which it could adjudicate the matter; in fact, the divorce action had commenced just four months before Donal's death. (The action was filed June 27, 1977 and Donal died October 28, 1977.) No evidence had been adduced, and since "the dissolution was already accomplished by death," the domestic relations court properly dismissed the action on November 1, 1977.

Appellee next directs our attention to Candler v. Donaldson (C.A. 6, 1959), 272 F.2d 374, which she characterizes as "most analogous to the instant case." Drawing on her brief, we learn that Wheaton Candler, the deceased-insured, was a party to a divorce action and his wife, the beneficiary of a $10,000 insurance policy. In the divorce proceedings, the trial court issued a temporary restraining order which barred the insured-husband from " 'in any manner disposing of any of the properties and assets of either or both of the parties * * *.' " Id. at 376. Notwithstanding such order, the insured-husband executed a change of beneficiary on his life insurance by removing his wife and substituting his mother as the beneficiary. After the change was recorded and prior to the resolution of the divorce action, the insured died. Claims for insurance proceeds, by interpleader, were submitted both by the decedent's spouse and mother.

The United States District Court for the Eastern District of Michigan, relying on New York Life Ins. Co. v. Cook (1927), 237 Mich. 303, 211 N.W. 648, held that a wife has no interest in the insurance policy on the life of her husband merely by reason of the fact that she was the named beneficiary thereon and that, accordingly, the insured has the right to change the beneficiary while a divorce suit, brought by him, is pending and where his death intervenes before the entry of the decree.

Accordingly, the trial court found that the mother was entitled to the insurance proceeds since the wife had no vested interest in the insurance policy.

In reversing the lower court, the United States Court of Appeals for the Sixth Circuit found that although the husband has a right to change the beneficiary under the terms of the insurance policy, equities may arise in favor of the wife as named beneficiary, which would deny the husband the right to so change the beneficiary of such policy.

We find these facts recited by appellee from Candler ignore additional evidence that formed the basis of the appellate reversal. A careful reading of the case reveals the following additional facts. A child (William Wallace Candler) was born September 20, 1955. On November 7, 1956, Wheaton filed a divorce action. On November 27, 1956, Margery filed a petition for temporary alimony. Following a hearing, the court ordered (1) that Wheaton pay Margery $30 per week during pendency of the action for her and the child's support and maintenance; (2) that Margery have continued use of the family home and furnishings; (3) that Wheaton pay all (a) utility bills and (b) other expenses for the use and enjoyment of the house; (4) that Wheaton continue in force (a) all life insurance policies, (b) auto insurance policies, and (c) policies pertaining to real estate and personal property, and lastly, (5) that Wheaton be restrained from disposing of property therein mentioned until final adjudication. Nevertheless, Wheaton changed the beneficiary from Margery to his mother (Louise Donaldson).

Wheaton died August 21, 1957 and the obligations of maintenance and support of Margery and their son, the expenses of the family home and furnishings, utility bills, and maintenance of life and other insurance...