Pensyl v. Moore

• Decision Date: 25 May 1982
• Docket Number: No. 81-1722,81-1722
• Citation: 415 So.2d 771
• Parties: Carol PENSYL, Appellant, v. Michael Steven MOORE, Melisa Anne Moore, Kevin Moore, minors by their next friend, Mary Ann Moore, their mother, and Patrick Samuel Moore, individually, Appellees.
• Court: Florida District Court of Appeals

Page 771

415 So.2d 771

Carol PENSYL, Appellant, v. Michael Steven MOORE, Melisa Anne Moore, Kevin Moore, minors by their next friend, Mary Ann Moore, their mother, and Patrick Samuel Moore, individually, Appellees.

No. 81-1722.

District Court of Appeal of Florida,

Third District.

May 25, 1982.

Rehearing Denied July 15, 1982.

Alldredge & Gray and James H. Gray, Jr., Miami, for appellant.

Weintraub, Weintraub, Seiden, Dudley & Press and Albert L. Weintraub, Miami, for appellees.

Before SCHWARTZ, NESBITT and FERGUSON, JJ.

SCHWARTZ, Judge.

In a 1973 property settlement agreement which was incorporated into a final judgment of dissolution, Jerry Moore agreed with his then-wife that

[t]he Husband shall maintain and remain the owner of all life insurance policies on his life with the minor children herein as the direct or indirect beneficiaries thereof.

At the time, Mrs. Moore was named as the primary beneficiary and their four children the secondary or contingent beneficiaries of several family and group term life insurance policies, as well as of his retirement pension plan. Subsequently, however, Moore effected a purported change in the designated primary beneficiary of each of these benefits from his ex-wife to his girlfriend, the present appellant, Carol Pensyl. Although the children remained as secondary beneficiaries, this action, if deemed effective, violated the requirement that they continue as either "direct or indirect" beneficiaries of the policies. The expression, which is unknown to the law of insurance, was obviously adopted so that the children would indeed receive the benefits in question upon Moore's death--either "directly," that is, in their own names, or "indirectly," through Moore's estate or their mother, as was provided when the dissolution took place. Just as obviously, the children would receive no proceeds whatever if Ms. Pensyl were the actual recipient of the benefits.

In 1980, Mr. Moore died. At the conclusion of what became essentially an interpleader action between Ms. Pensyl and the Moore children over the benefits in question, both sides moved for summary judgment on concededly undisputed facts. The trial court granted the Moores' motion and Pensyl appeals.

We affirm on the basis of our agreement with the trial court that the issue is controlled by the almost identical case of Dixon v. Dixon, 184 So.2d 478 (Fla.2d DCA 1966), cert. discharged, 194 So.2d 897 (Fla.1967), rather than Cadore v. Cadore, 67 So.2d 635 (Fla.1953), upon which the appellant wholly relies. Most significant of the decisive points of similarity with Dixon and distinction with Cadore is the fact that the agreement here required Moore to maintain his ownership of and the children's beneficial interest in the policies in question. In contrast, Cadore was bound only to effect an initial change in the beneficiaries and was not obliged to refrain from permitting the policy to lapse, from again altering the beneficiary, or from transferring ownership of the policies altogether. The latter is just what occurred in Cadore, in which the transferee, Cadore's new wife, actually paid several premiums before the insured's death. These circumstances are again unlike this case, in which Moore himself, in accordance with his agreement, made all the required payments. Thus, the following statements in Dixon are both correct and controlling in this case.

The Cadore decision, however, does not control in the instant case because of the strikingly different provisions of the stipulation and decree. The decedent...