Lynn Lou Webb v. Terry Lee Webb, 97-LW-4931

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtFREDERICK N. YOUNG, P.J.
PartiesLYNN LOU WEBB, Plaintiff-Appellee v. TERRY LEE WEBB, Defendant-Appellant C.A. CASE NO. 16371
Decision Date31 December 1997
Docket NumberC.A. 16371,97-LW-4931

LYNN LOU WEBB, Plaintiff-Appellee
v.

TERRY LEE WEBB, Defendant-Appellant

T.C. CASE NO. DM 90-318

No. C.A. 16371

97-LW-4931 (2nd)

December 31, 1997


ROBERT D. GOELZ, Atty. Reg. No. 0024197, 318 West Fourth Street, Dayton, Ohio 45402, Attorney for Plaintiff-Appellee

DON A. LITTLE, Atty. Reg. No. 0022761, 7051 Corporate Way, Suite 200, Dayton, Ohio 45459, Attorney for Defendant-Appellant

OPINION

FREDERICK N. YOUNG, P.J.

Terry Webb ("Terry") appeals the domestic relations court's grant of Lynn Webb's ("Lynn") request that Terry's child support obligation be secured by his employer provided life insurance policy. Finding that domestic relations courts possess this authority, we affirm the domestic relations court's decision to secure its child support order. We reverse the court's order in part, however, because it is overly broad, and we remand that portion of the court's order for the trial court to tailor it more narrowly.

I.

This appeal has its basis in the following facts. On June 1, 1990, the domestic relations court issued a "FINAL DECREE OF DISSOLUTION OF MARRIAGE," dissolving the parties' marriage. The parties' separation agreement was incorporated into the court's final dissolution decree. In the incorporated separation agreement, the parties allocated their respective rights and obligations with regard to their minor child, Shana. The parties agreed that Lynn would receive custody of Shana and that Terry would pay Lynn child support in the amount of sixty five dollars per week. At the time of their divorce, Shana was a little over two years old.

On August 1, 1996, Lynn moved the court to increase child support and requested that the court secure the increased child support order by requiring Terry to designate Shana as the beneficiary on his new employer provided life insurance policy. The trial court held a hearing on that motion on September 23, 1996. At the hearing, the parties agreed and it was ordered that:

1) child support payments would be increased from around two hundred and ninety dollars a month to five hundred and nineteen dollars per month and 2) the court's decision as to securing Terry's support obligation with his insurance policy would be postponed for thirty days to allow the parties to present legal memoranda to the court on that issue. Lynn's counsel filed a memorandum with the court on October 24, 1996. On the contrary, Terry's counsel never filed a memorandum with the court

On November 13, 1996, after reviewing the sole memorandum submitted to the court, the magistrate issued a decision ordering Terry to designate his daughter as the primary beneficiary of his employer provided insurance policy in the amount of at least forty thousand dollars for so long as Terry has a duty to support her. On December 2, 1996, Terry filed an objection to the magistrate's decision, asserting without legal authority or explanation, that a domestic relations court is without jurisdiction to secure its child support orders when security is not provided for in the court's final decree or in the parties' separation agreement.

The domestic relations court viewed Terry's counsel's unsupported objection as a request for an extension of time and granted Terry's counsel an extension. In response to the court's offer of an extension, on December 23, 1996, Terry's counsel re-asserted his unsupported position and moved the court to rule on the magistrate's objections. Noting his counsel's urgings that the court rule on the matter, on January 28, 1997, the domestic relations court issued its decision overruling his counsel's objections to the magistrate's decision. The court explained that the proposition that

"any single element of the court's continuing jurisdiction over parenting issues -- including custody education, education expenses, visitation, transportation expenses, child support, support withholding, child disability, medical expenses, health insurance, life insurance -- can be lost to the court because that single element, for whatever reason, was not specifically addressed in the original decree defies common sense."

Terry now brings this timely appeal of that decision.

II.

In his sole assignment of error, Terry argues that:

THE TRIAL COURT ERRED IN SUSTAINING APPELLEE'S POST DECREE MOTION TO REQUIRE APPELLANT TO MAINTAIN LIFE INSURANCE ON APPELLANT'S LIFE TO GUARANTEE CHILD SUPPORT PAYMENTS WHEN NEITHER THE DECREE OF DISSOLUTION NOR THE SEPARATION AGREEMENT APPENDED THERETO CONTAIN ANY SUCH REQUIREMENT. APPELLANT MAINTAINS THE COURT WAS WITHOUT JURISDICTION AND AUTHORITY TO ADD SUCH INSURANCE REQUIREMENT POST DECREE

Unlike in the trial court, Terry's counsel does explain his argument and supports it with legal authority in this appeal. His counsel argues that a domestic relations court is without jurisdiction to order an obligor to maintain a life insurance policy for the benefit of his minor children when there is no provision made for such a policy in the separation agreement incorporated into the final dissolution decree. As support for this contention, Terry's counsel argues that in disputes between parties that arise after a dissolution decree is granted, courts are required to resolve the dispute by effectuating the intent of the parties under the terms of the separation agreement. Furthermore, his counsel maintains that the intent of the parties is presumed to be found in the language that the parties employ in their separation agreement. Terry's counsel maintains that the terms of Terry's and Lynn's separation agreement in the present case do not expressly or impliedly evidence that they agreed to secure Terry's child support obligation with an insurance policy. Consequently, his counsel argues that the court was without the authority and jurisdiction to impose this requirement in the present case.

III.

Law and Analysis

The main obstacles to a court requiring insurance as security for child support when parties have not agreed to it in the incorporated separation agreement stem from three arguably antiquated common law principles. See, Annotation, DIVORCE: PROVISION IN THE DECREE THAT ONE PARTY OBTAIN OR MAINTAIN LIFE INSURANCE FOR THE BENEFIT OF OTHER PARTY OR CHILD (1974), 59 A.L.R.3d 9 (for a general discussion of cases on the issue of ordering an insurance policy for the benefit of the divorcing parties' children). The first of those common law rules is that a parent (under common law it was the father) is not obligated to support his children after his death. The second and closely related rule was that a father has no duty to settle an estate upon his children because a father's obligation of support terminates at the father's death regardless of the age of the child. The third common law rule is that a father is only obligated to support his children during their minority.

Many common law rules regarding issues of marriage, divorce, and children, like the above-mentioned rules, have been questioned in more recent years. As the Court noted in Gross v. Gross (1984), 11 Ohio St.3d 99, over the last several decades

"changes have taken place in the attitudes and mores surrounding marriage and marital relationships. * * * Some of the factors involved within this evolution of policy are the social changes which affect family law in general, such as the greater frequency of divorce and remarriage, [and] the percentage drop in marriage generally among our citizens * * *."

"* * * modern trends of marriage and divorce across the country dictate that reasonable laws must be forthcoming to accommodate these changing social attitudes."

Id. at 104-105.

Courts have found that many common law rules regarding marriage, divorce, and children, like the above-mentioned rules, are anachronistic in today's society because they are based upon outmoded social and sexual stereotypes as well as outdated views of property interests. Thompson v. Thompson (1987), 31 Ohio App.3d 254, 256. One example of a rule under common law that has been found to be anachronistic is the paternal preference in child custody cases. Id. Under common law, the father was usually given custody over the children upon a divorce because the father was considered the head of the family and, as such, it was thought that the father would "love them most, and care for them most wisely." Id. at 255, quoting Hibbette v. Baines (1900), 78 Miss. 695, 703, 29 So. 80, 81.

As with the paternal preference, the modern trend has been to find that the common law principle that a father's death terminates his obligation of support is outdated. E.g., Ariz. Rev. Stat. § 25-327 (c); Ill. Rev. Stat. ch. 40 § 510 (c); K.R.S. § 403.250 (3) (statutorily providing that death does not discharge the parent's child support obligation); See also, the following cases recognizing that a divorce court has the power to require parent to obtain or maintain insurance on the parent's life for the benefit of the parent's children Pittman v. Pittman (Ala.1982), 419 So.2d 1376; Wolk v. Wolk (Conn.1983), 464 A.2d. 780; Allen v. Allen (Ind.App.1985), 477 N.E.2d 104; Krueger v. Krueger (Mich.1979), 278 N.W.2d 514; Stein v. Sandow (2d Dept.1983), 468 NYS2d 910; Gardner v. Gardner (Ga. 1994), 441 S.E.2d 666, 668 dissenting opinion (noting that at least twenty jurisdictions now allow court ordered child support in the form of life insurance).

This change in attitude is in part based upon the recognition that a child is no less dependent upon a parent after the parent's death than before. The change in view can also be attributed to the recognition that the burden of support may fall in total or in part on society if the surviving parent is unable to fully carry the burden. In recognition of this, the preference is becoming that the child's support remain with the parent when the parent has the means to support the child rather than shifting the...

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