Provident Mut. Life Ins. of Philadelphia v. McLeod

• Decision Date: 21 August 1973
• Docket Number: No. 72--364,72--364
• Citation: 515 P.2d 482,33 Colo.App. 7
• Parties: PROVIDENT MUTUAL LIFE INSURANCE OF PHILADELPHIA, Plaintiff-Appellee, v. Gladys Beatrice McLEOD, Individually and as mother and next friend of Gregory J. McLeod, et al., Defendant-Appellant, and Beverly A. McLeod, Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 482

515 P.2d 482

33 Colo.App. 7

PROVIDENT MUTUAL LIFE INSURANCE OF PHILADELPHIA, Plaintiff-Appellee, v. Gladys Beatrice McLEOD, Individually and as mother and next

friend of Gregory J. McLeod, et al., Defendant-Appellant,

and

Beverly A. McLeod, Defendant-Appellee.

No. 72--364.

Colorado Court of Appeals, Div. I.

Aug. 21, 1973.

Rehearing Denied Sept. 18, 1973.

Certiorari Granted Nov. 19, 1973.

Harold Torgan, Denver, for plaintiff-appellee.

Gorsuch, Kirgis, Campbell, Walker & Grover, Bennett S. Aisenberg, Denver, for defendant-appellant.

Keller & Dunievitz, Alex Stephen Keller, Denver, for defendant-appellee.

SMITH, Judge.

Pursuant to C.R.C.P. 22, plaintiff, Provident Mutual Life Insurance, filed an action in interpleader to determine which of several claiming parties have the right to the proceeds of an insurance policy issued by plaintiff upon the life of Robert W. McLeod, deceased. Gladys Beatrice McLeod, as mother and natural guardian of the children of the marriage between Robert and Gladys, claims the proceeds of the policy by virtue of a court order entered in a divorce proceeding which order directed the deceased to designate him minor children as beneficiaries of the policy in question. Beverly A. McLeod, wife of the deceased at the time of his death, claims the proceeds of the policy under a change of beneficiary executed by the deceased which made her primary beneficiary of the policy.

The trial court determined that the order requiring the deceased to designate his minor children as primary beneficiaries was void because the court in the divorce proceedings had no jurisdiction to enter such an order. Judgment was entered in favor of Beverly, the widow. Gladys appeals to this court on behalf of her minor children asserting that the trial court had the jurisdiction and authority to enter the order, or if not, that Beverly is estopped from collaterally attacking the order.

I

In the divorce proceeding, plaintiff was ordered by the court to designate his children as beneficiaries of the life insurance policy until the youngest reached 21 years of age. In Laws v. Laws, 164 Colo. 80, 432 P.2d 632, the authority of the trial court in a divorce action to issue such an order was considered and it was determined that an award to this effect, which was not intended to serve as security under provision of C.R.S.1963, 46--1--5(3), was outside the power of the trial court. The supreme court in that case adopted the policy that a non-custodial parent may not...