Lelux v. Chernick

Decision Date20 March 1997
Docket NumberNo. 96APE05-628.,96APE05-628.
Citation119 Ohio App.3d 6,694 NE 2d 471
PartiesLELUX, Appellant, v. CHERNICK, Exr., Appellee.
CourtOhio Court of Appeals

Law Office of James R. Nein, James R. Nein and Matthew R. Copp, for appellant.

Arter & Hadden, Michael W. Currie and Laura Hauser, for appellee.

LAZARUS, Judge.

This matter is before this court upon appeal from a judgment of the Franklin County Court of Common Pleas in which the court granted summary judgment in favor of defendant-appellee, Leslie Chernick, executor of the estate of Lisa Lelux, and against plaintiff-appellant, Keith Lelux. Appellant has assigned the following as error:

"The trial court committed error by granting the cross-summary judgment request of the defendant-appellee, Leslie Chernick, Executrix, and denying the motion for summary judgment of plaintiff-appellant, Keith Lelux."

The undisputed facts of this case are as follows. Lisa LeLux and appellant were married on May 4, 1984. On June 24, 1985, Lisa completed the forms necessary to obtain retirement benefits through her employer, designating appellant as primary beneficiary of those benefits and her mother as contingent beneficiary. On December 9, 1985, Lisa completed the forms necessary to obtain life insurance through a group insurance policy issued by John Hancock Mutual Life Insurance Company ("John Hancock") through her employer. Appellant was designated as beneficiary of the insurance policy.

Subsequently, the parties filed a petition for dissolution of their marriage. The dissolution was granted on September 22, 1993, and included a separation agreement. Appellant's lawyer drafted the separation agreement; Lisa was not represented by counsel. The separation agreement set forth the parties' rights and obligations regarding their retirement accounts and life insurance policies, as follows:

"(F) Retirement Accounts.

"The parties represent that the Husband has no retirement account of his own of any kind and that the Wife has a retirement account/plan through her employer. It is hereby agreed by and between the parties that the Wife shall receive, free and clear of any and all claims of the Husband, all funds currently contained in her retirement account/plan or that may hereinafter be deposited into same such account/plan.

"(G) Life Insurance Policies.

"The parties represent that they each currently have individual Life Insurance Policies on their respective lives through their employers. It is hereby agreed by and between the parties that the Wife shall receive, free and clear of any claims of the Husband, her life insurance policy(s) through her employer and that the Husband shall receive, free and clear of any claims of the Wife, his life insurance policy(s) through his employer."

The separation agreement also contained a more general clause entitled "Mutual Releases," in which the parties declared:

" XI. Mutual Releases.

"Except as hereinabove otherwise provided, each party hereby releases and discharges completely and forever the other from any and all rights of past, present, and future support, division of property, right of dower, right to act as administrator or executor in the estate of the other, right to distributive share in the other's estate, right of exemption in the estate of the other, or any other property rights, benefits or privileges accruing to either party by virtue of said marriage relationship, whether the same are conferred by the statutory law or the common law of Ohio, or any other state or of the United States. It is the understanding between the parties that this Agreement, except as otherwise provided herein, forever and completely adjusts, settles, disposes of, and completely terminates, any and all rights, claims, privileges and benefits that each now has, or each may have reason to believe each as against the other, arising out of said marriage relationship, and whether the same are conferred by the laws of the State of Ohio, or any other state, or of the United States, and which are now, or which may hereafter be, in force and effect."

Lisa died on October 16, 1994, without having filed a change of beneficiary with either her retirement account or her life insurance policy. Lisa's will contained no provision for the disposition of either the retirement benefits or the life insurance proceeds.

On June 2, 1995, appellant filed a complaint for declaratory relief against appellee and John Hancock, demanding that the court order the insurance company to pay the proceeds of the life insurance policy to appellant. The complaint also demanded that the court declare that appellant is entitled to retain possession of the retirement benefits already paid to him by Lisa's employer.

Appellee's answer and counterclaim, filed on June 23, 1995, denied that appellant was entitled to the benefits from the retirement plan and proceeds of the life insurance policy, and sought a declaratory judgment that appellee, and not appellant, was entitled to all funds.1

On November 27, 1995, and February 29, 1996, respectively, appellant and appellee filed motions for summary judgment. By judgment entry dated April 11, 1996, the trial court found no genuine issue of material fact to exist and awarded judgment to appellee as a matter of law. Appellant timely appeals.

Denial of a motion for summary judgment is not a final, appealable order. State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23, 37 O.O.2d 358, 222 N.E.2d 312. Thus, the only issue for review is whether the trial court properly granted appellee's motion for summary judgment. Upon a summary judgment motion, the movant must demonstrate "(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47.

Where the movant has made this tripartite demonstration, an appellate court will not disturb a trial court's granting of summary judgment.

Separation agreements are subject to the same rules of construction as any other type of contract, and the construction of unambiguous written contracts is a matter of law. See Graham v. Drydock Coal Co. (1996), 76 Ohio St.3d 311, 313, 667 N.E.2d 949, 951-952; Brown v. Brown (1993), 90 Ohio App.3d 781, 784, 630 N.E.2d 763, 765. "Unlike determinations of fact which are given great deference, questions of law are reviewed de novo." Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73 Ohio St.3d 107, 108, 652 N.E.2d 684, 686. Contracts are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language. Skivolocki v. E. Ohio Gas Co. (1974), 38 Ohio St.2d 244, 67 O.O.2d 321, 313 N.E.2d 374, paragraph one of the syllabus. If a term of a contract is ambiguous, the meaning of the term is a question of fact calling for a determination of the parties' intent. See Inland Refuse Transfer Co. v. Browning-Ferris Industries of Ohio (1984), 15 Ohio St.3d 321, 322, 15 OBR 448, 448-449, 474 N.E.2d 271, 272-273. Ambiguous contractual language will be construed against the drafter of the contract. Cent. Realty Co. v. Clutter (1980), 62 Ohio St.2d 411, 413, 16 O.O.3d 441, 442, 406 N.E.2d 515, 517. In the instant case, neither party has alleged the language of the separation agreement to be ambiguous. Rather, the parties maintain that this case presents purely legal issues for this court's consideration. The issue is whether the language of the separation agreement "plainly indicates" the elimination of appellant as the named beneficiary from all rights to the insurance proceeds and retirement benefits.

Appellant concedes that the separation agreement specifically addresses both the life insurance policy and retirement account but argues that under Phillips v. Pelton (1980), 10 Ohio St.3d 52, 10 OBR 314, 461 N.E.2d 305, Grelle v. Nationwide Life Ins. Co. (1979), 63 Ohio App.2d 144, 17 O.O.3d 338, 409 N.E.2d 1056, and Richardson v. BancOhio Natl. Bank (Oct. 11, 1990), Franklin County, No. 90AP-283, unreported, 1990 WL 152929, the language in the separation agreement is insufficient to eliminate appellant as beneficiary.

In Phillips, the Supreme Court reaffirmed its earlier holding in Cannon v. Hamilton (1963), 174 Ohio St. 268, 22 O.O.2d 331, 189 N.E.2d 152, and held:

"Where the parties to a separation agreement which is incorporated into a decree of dissolution specifically direct their attention to the issue of life insurance and express their intent to release all rights which each may have as beneficiary under the policies of the other, such language is sufficient to eliminate each party as beneficiary of the other notwithstanding the fact that no specific change of beneficiary is made." Id. at syllabus.

The court reasoned:

"The general rule is that divorce (or dissolution) alone does not automatically defeat the right of a named beneficiary to receive the proceeds of a former spouse's life insurance policy. In order to effectuate a change of beneficiary, the insured must ordinarily follow the procedure directed in the policy of insurance. In summary, the intentions of the insured as expressed in the designation of beneficiary will normally be upheld.

"An exception applies where the terms of a separation agreement which is made part of the divorce (or dissolution) decree `plainly indicate' the elimination of the named beneficiary from all rights to the life insurance proceeds. In that instance, the insured and the former spouse have manifested a contrary intent from the specific designation contained in the policy which should be given effect." (Citations omitted.) Id., 10 Ohio...

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