Malicoate v. STANDARD LIFE AND ACC. INS. CO

• Decision Date: 04 February 2000
• Docket Number: No. 93,151.,93,151.
• Citation: 2000 OK CIV APP 37,999 P.2d 1103
• Parties: Diana J. MALICOATE, now Elliott, Plaintiff/Appellant, v. STANDARD LIFE AND ACCIDENT INSURANCE COMPANY; and Pamela Spess, Personal Representative of the Estate of Darrell G. Malicoate, Deceased, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

999 P.2d 1103

2000 OK CIV APP 37

Diana J. MALICOATE, now Elliott, Plaintiff/Appellant, v. STANDARD LIFE AND ACCIDENT INSURANCE COMPANY; and Pamela Spess, Personal Representative of the Estate of Darrell G. Malicoate, Deceased, Defendants/Appellees.

No. 93,151.

Court of Civil Appeals of Oklahoma, Division No. 3.

February 4, 2000.

Paul McKinney, Shawnee, Oklahoma, for Plaintiff/Appellant.

Stephen L. DeGiusti, Crowe & Dunlevy, P.C., Oklahoma City, Oklahoma, for Defendant/Appellee Standard Life and Accident Insurance Company.

Joseph A. Dobry, Chandler, Oklahoma, for Defendant/Appellee Pamela Spess.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

OPINION

ADAMS, Judge:

¶ 1 Diana J. Malicoate, now Elliott (Wife), appeals a trial court judgment in favor of Defendant/Appellee Standard Life and Accident Insurance Company (Employer) and Defendant/Appellee, Pamela Spess, Personal Representative of the Estate of Darrell Malicoate (Estate). Wife brought this action to enforce her perceived right to receive child support, support alimony, and property alimony payments after the death of Darrell Malicoate (Husband), her former spouse, and to have Employer make those payments from renewal commissions on insurance policies sold by Husband while he was serving as an agent for Employer. We conclude the trial court did not err in denying Wife the relief requested as to child support and support alimony payments after Husband's death and affirm that decision. With regard to property alimony, we reverse the trial court's order and remand the case for the trial court to consider whether that obligation has already been satisfied, obviating any need to determine the existence of an equitable lien.

FACTS AND PROCEDURAL HISTORY

¶ 2 The material facts are undisputed. When Wife and her husband of 27 years, decided to end their marriage, only one of their two children was a minor and living at home. Having agreed to a division of their property and an amount for child support, support alimony, and alimony in lieu of property, Wife and Husband executed a Contract Settling Rights Arising Out of Marriage (Contract), a proposed consent Decree of Divorce (Divorce Decree), and a Declaration of Consent, Agreement and Waiver (Waiver), on February 26, 1997.

¶ 3 The Contract, Waiver and Divorce Decree were presented to the trial court for approval, and on February 27, 1997, Wife and Husband were each granted a divorce on the grounds of incompatibility. In addition to awarding custody of the minor child to Wife and standard visitation for Husband, the Divorce Decree ordered Husband to pay Wife: (1) $1,000 per month child support "until said child graduates from high school or until further order of the Court is entered herein"; (2) support alimony in the sum of $180,000 or $1,500 per month commencing March 5, 1997, until paid, payable regardless of Wife's marital status; and (3) $15,450 as alimony in lieu of property division, to be paid $1,500 per month beginning June 5, 2002, until paid in its entirety. The same day, the Waiver and the Divorce Decree were filed of record.

¶ 4 After the divorce, Husband continued his employment as an insurance agent for Employer until his death on May 16, 1998. Employer immediately ceased honoring monthly garnishments for support alimony and the income assignment for child support it had been paying to Wife from Husband's insurance renewal commissions. Wife attempted to reinstate both payments until Estate, whom Employer had been paying since Husband's death, filed a claim for entitlement to those funds. Upon receipt of Estate's claim, Employer suspended the payments.

¶ 5 Wife then filed this action against Employer and Estate to recover Husband's obligations under their Contract and Divorce Decree, claiming the documents establish their intent that the payments would survive Husband's death and continue to be paid from his renewal commissions. For relief, she requested judgment against Estate and Employer for a continuing right to collect child support, support alimony and alimony in lieu of property division and a determination that she has a valid assignment and a valid equitable lien on the renewal commissions for the purpose of satisfying the obligation of the Contract and the Divorce Decree.¹

¶ 6 Employer moved to dismiss Wife's petition for lack of jurisdiction and for failure to state a claim upon which relief can be granted, arguing that her claim must be filed in the pending probate proceedings pursuant to Oklahoma's probate laws. Wife opposed the motion, arguing the trial court had concurrent jurisdiction and that a claim to an "equitable lien" on specific assets of an estate is not required to be filed with the administrator. After a hearing in early December 1998, the trial court entered an order on January 7, 1999, granting Employer's motion to dismiss because Wife's "petition fails to state a claim against [Employer]" and she "must first present her claim in the probate proceeding... Therefore, [Wife's] current action is premature."² In a separate order filed the same day, the trial court directed Employer to pay the renewal commissions into court.

¶ 7 Before the hearing on Employer's motion to dismiss, Estate moved for summary judgment, attaching only the Divorce Decree and the Contract to support its arguments that Wife's claim fails as a matter of law because: (1) neither document expressly creates any lien in favor of Wife for the payment of child support and support alimony after Husband's death, and no lien is created in a divorce decree unless the trial court explicitly creates one; and (2) there is no express agreement within the Contract that support alimony would survive Husband's death and no express order within the Divorce Decree that child support would survive Husband's death and therefore, both payments automatically terminated upon his death.

¶ 8 Wife opposed the motion, repeating her response to Employer's motion to dismiss and distinguishing the equitable lien she is claiming on the renewal commissions from a decree-ordered lien against real property. After a hearing on Estate's motion in late December 1998, the trial court took the matter under advisement. By order filed on February 5, 1999, the trial court granted Estate's motion for summary judgment, finding that "there are no material issues of fact, only issues of law," and then dismissed Wife's case "but all without prejudice to [Wife] making her creditor's claim in the probate case."

¶ 9 Less than 10 days from the filing of both the January 7, 1999 and the February 5, 1999 orders, Wife filed a "Motion to Reconsider, or in the Alternative, Motion for New Trial" (hereinafter, motions for new trial)³ arguing that the trial court's orders requiring her to file a creditor's claim with Estate prior to establishing her right to an equitable lien on the renewal commissions is contrary to Oklahoma law. Employer opposed Wife's new trial motion, contending it contained nothing new, whereas Estate contended Wife misunderstood the trial court's summary judgment ruling.⁴ At the hearing on Wife's motions for new trial, the trial court overruled both, inter alia,⁵ and thereafter filed a single order to that effect. This appeal followed.

ESTATE'S MOTION TO STRIKE PROPOSITIONS OF ERROR

¶ 10 Wife's Petition-in-Error includes four alleged errors for appellate review. As in her motions for new trial, Wife alleges the trial court erred as a matter of law by dismissing Employer and granting summary judgment in favor of Estate based on the finding that she must file a creditor's claim with Estate. Wife further challenges the latter order, claiming there are two issues of fact which preclude summary judgment— whether there was an equitable lien imposed upon the renewal commissions in her favor and whether Husband's obligations for child support and support alimony survived his death. As her fourth error, she alleges the trial court's conclusion that an equitable lien may be created only by express words in a decree of divorce is based on an incorrect interpretation of the holding in First Community Bank of Blanchard v. Hodges, 1995 OK 124, 907 P.2d 1047.

¶ 11 Estate contends in its Motion to Strike Propositions of Error, filed concurrently with its response to Wife's Petition-in-Error, that she failed to timely raise all but the first error as grounds for granting a new trial in both motions and that she did not cure this failure at the hearing on those motions. As a result, Estate contends only the first alleged error may be considered on appeal, citing as its authority Rule 17 of the Rules for the District Court, 12 O.S.1991, Ch. 2, App. 1 and Arkansas Louisiana Gas Company v. Travis, 1984 OK 33, 682 P.2d 225.

¶ 12 Rule 17 provides that when a party files a motion for new trial, that party may not, on appeal, rely on any errors which are not fairly embraced in the specific grounds stated therein. See also 12 O.S.1991 § 991(b). The purpose behind Rule 17 is to promote judicial economy by allowing the trial court to correct its own errors. Smith v. Pierce, 1992 OK CIV APP 147, 843 P.2d 391. To be effective, a new trial motion must inform the trial court of specific defects in the prior judicial proceedings. See Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, 681 P.2d 757

.

¶ 13 The record confirms Estate's assertion that only Wife's first error is specifically argued as a ground for granting a new trial in both of her motions. However, Rule 17 does not apply to her fourth error because it addresses an alleged error with the trial court's decision at the hearing on her motions for new trial. Accordingly, Estate's motion to strike that issue is denied, leaving for our determination whether Wife's second and third alleged errors are reviewable by this court. As noted in Horizons, Inc., any lack of specificity in the language of a new trial motion will be regarded as effectively...