Prudential Ins. Co. of America v. Dulek

• Decision Date: 19 December 1980
• Docket Number: Civ. No. 79-0-414.
• Parties: PRUDENTIAL INSURANCE COMPANY OF AMERICA, a corporation, Plaintiff, v. Robert James DULEK and Betty Lou Dulek, husband and wife, Defendants, and Bonnie Lynn Dulek, Defendant.
• Court: U.S. District Court — District of Nebraska

504 F. Supp. 1015

PRUDENTIAL INSURANCE COMPANY OF AMERICA, a corporation, Plaintiff, v. Robert James DULEK and Betty Lou Dulek, husband and wife, Defendants and Bonnie Lynn Dulek, Defendant.

Civ. No. 79-0-414.

United States District Court, D. Nebraska.

December 19, 1980.

Thomas J. Guilfoyle, Omaha, Neb., for defendants, Robert James Dulek and Betty Lou Dulek.

Mark S. Bertolini, Omaha, Neb., for defendant, Bonnie Lynn Dulek.

DENNEY, District Judge.

This lawsuit is an interpleader action involving the proceeds of a Servicemen's Group Life Insurance Policy. The stakeholder, The Prudential Insurance Company, claimed no interest in the proceeds and has been dismissed from this action. The claimants contesting for the proceeds of the policy are the insured's former wife, Bonnie Lynn Dulek, and the insured's parents, Robert James Dulek and Betty Lou Dulek the Duleks.

The claimants have filed cross-motions for summary judgment. Since the facts are uncontroverted, this case is ripe for summary judgment. The only issue for this Court to resolve is whether Bonnie Lynn Dulek was the lawful spouse of the insured at the time of his death.

Uncontroverted Facts

1. Terrence Alan Dulek's life was insured under a Servicemen's Group Life Insurance Policy. On February 16, 1978, he completed a form directing that the proceeds of this insurance should be distributed as provided "by law." This designation of beneficiary was not changed prior to the insured's death.

2. On January 19, 1978, the insured and Bonnie Dulek were married in Gonzales, Louisiana, while they were on leave from Offutt Air Force Base. After their marriage, the insured and Bonnie Dulek returned to Omaha, Nebraska, and set up housekeeping. They lived together almost continuously from that time until their separation two and one-half months later.

3. After the separation but prior to the divorce, Bonnie Dulek began living with another man.

4. On May 17, 1978, the insured and Bonnie Dulek executed a separation agreement. This document indicates that the parties, because of "disputes and irreconcilable differences, ... had separated and were now living separate and apart and intended to continue live separate and apart for the rest of their natural lives." The stated purpose of the agreement was "to confirm their separation and to make arrangements in connection therewith, including the settlement of all questions relating to their property rights and other rights and obligations growing out of the marriage relation." The agreement does not give the reason why the couple separated.

The agreement evidenced an intent that each party be freed from the other's authority and control as if he or she were single and unmarried. The terms of the agreement provide for the apportionment of the debts between them. Similarly, the agreement also contained a provision distributing the couple's personal property. It, however, did not specifically discuss what should be done with the insurance policy in issue here. The agreement did include a mutual release:

Except as herein otherwise provided, both parties release and forever discharge the other of and from all liability, claims for money or property, causes of action, rights, demands, alimony or support whatsoever in law or in equity which either of the parties hereto ever had or now has against the other except all cause of action for divorce.

Finally, the agreement states "that this agreement contains the entire understanding of the parties. There are no representations, promises, warranties, covenants, or undertakings other than those expressly set forth herein."

5. On April 20, 1979, the District Court of Sarpy County, Nebraska, entered a divorce decree dissolving the marriage of the insured and Bonnie Dulek. The decree states that the insured had been served with summons on February 13, 1979, but had failed to answer. The insured was thus in default and judgment was entered against him.

The decree does not indicate why the divorce was being sought. It merely states that the marriage was irretrievably broken. With respect to the property of the parties, the decree awards to each party the personal property currently in the possession of each. The decree does not specifically provide for the disposition of the insurance policy in question here.

The decree did not become operative immediately. It states:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Decree dissolving the marriage shall not become final and operative until six months have elapsed from the date of entry, except for the purpose of review by appeal, and for such limited purpose only, it shall be treated as a final order on the date entered.

6. The insured died on May 28, 1979, of injuries received in a motorcycle accident. Bonnie did not attend the insured's funeral nor did she pay any of the expenses arising from his death.

7. Robert James Dulek and Betty Lou Dulek are the parents of the insured. Terrence Dulek was not survived by any children.

Discussion

The insurance policy that insured the life of Terrence Dulek was issued pursuant to the federal law governing Servicemen's Group Life Insurance. 38 U.S.C. § 765 et seq. This federal law specifies the order for the distribution of the insurance proceeds, when a serviceman fails to designate any particular individual as the policy's beneficiary or uses the "by law" designation. The Act provides:

Any amount of insurance under this subchapter in force on any member or former member on the date of his death shall be paid, upon the establishment of a valid claim therefor, to the person or persons surviving at the date of his death, in the following order of precedence:

First, to the beneficiaries as the member or former member may have designated by a writing received prior to death ...;

Second, if there be no such beneficiary, to the widow or widower of such member or former member;

Third, if none of the above, to the child or children of such member or former member and descendants of deceased children by representation;

Fourth, if none of the above, to the parents of such member or former member or the survivor of them; ....

38 U.S.C. § 770(a).

Under this statutory scheme, a widow takes precedence over all other potential beneficiaries, except those specifically designated by the insured.

A widow is defined by the statute as meaning "a person who is the lawful spouse of the insured member at the time of his death." 38 U.S.C. § 765(7). Since the insured in the instant case made no specific beneficiary designation, the only issue to be resolved is whether Bonnie Dulek was the lawful spouse of the insured at the time of his death. If she was not, the Duleks, the parents of the insured, are entitled to the proceeds of the policy.

Nebraska law governs the marital status of Bonnie Dulek at the time of the insured's death.¹ Under Nebraska law, no divorce decree becomes "final or operative" until six months after it has been entered. Neb. Rev.Stat. § 42-372 (Reissue 1978). This statute postpones dissolution of a marriage until the decree becomes final. During the six month waiting period, the parties to the divorce action remain legally married. Copple v. Bowlin, 172 Neb. 467, 471, 110 N.W.2d 117, 121 (1961); Scott v. Scott, 153 Neb. 906, 910, 46 N.W.2d 627, 631 (1951); Shinn v. Shinn, 148 Neb. 832, 839, 29 N.W.2d 629, 633 (1947). Thus, it would appear that under Nebraska law, Bonnie was the lawful spouse of the insured at his death, since the divorce decree dissolving her marriage had not become operative.

Despite the apparent import of Neb.Rev. Stat. § 42-372, the Duleks contend that Bonnie Dulek was not the lawful spouse of the insured because of the effect of Section 30-2353 of the Nebraska Probate Code. This section provides:

Effect of divorce, annulment, and decree of separation. (a) An individual who is divorced from the decedent or whose marriage to the decedent has been dissolved or annulled by a decree that has become final is not a surviving spouse unless, by virtue of a subsequent marriage, he is married to the decedent at the time of death. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section.

(b) For purposes of parts 1, 2, 3, and 4 of this article and of section 30-2412, a surviving spouse does not include:

(1) an individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment or dissolution of their marriage, which decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or subsequently live together as man and wife;

(2) an individual who, following a decree or judgment of divorce or annulment or dissolution of marriage obtained by the decedent, participates in a marriage ceremony with a third individual; or

(3) an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights against the decedent.

Neb.Rev.Stat. § 30-2353 (Reissue 1979). Relying on Section 30-2353(b)(3), the Duleks argue that the divorce decree obtained by Bonnie Dulek precludes her from being a "surviving spouse" under Nebraska law.²

Assuming that Bonnie Dulek is not a "surviving spouse" under Section 30-2353(b)(3), the Court must still determine whether the Nebraska Probate Code should be used in defining "lawful spouse" for the purposes of Servicemen's Group Life Insurance Policy. For the reasons discussed below, the Court finds that the Nebraska Probate Code does not govern the definition of "lawful spouse" in this case.

The federal statute governing Servicemen's Group Life Insurance requires that this Court ascertain whether Bonnie Dulek was "the lawful spouse of the insured ... at the time of his death." (emphasis supplied). 38 U.S.C. § 765(7). Under this statute, the Court must determine Bonnie Dulek's...