White v. White
| Decision Date | 18 April 1975 |
| Parties | , 2 O.O.3d 48 WHITE, Appellee, v. WHITE, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
A husband, by a written separation agreement incorporated in a divorce decree, may contract to support his wife as long as she lives, and where the intent of the parties is clear and the wife survives her husband, such obligation extends beyond the death of the husband, and obligates his estate and any fund intended to be so impressed for the duration of her life.
Murray & Murray Co., L. P. A., Sandusky, for appellee.
Tone, Maddrell, Eastman & Grubbe, Sandusky, for appellant.
This is an appeal by defendant Laurine L. White from a partial summary judgment in favor of plaintiff Ruth Marie White, the appellee, construing a written separation agreement incorporated into a 1962 divorce decree. In that divorce action, plaintiff was granted a divorce from William A. White, who died in 1973.
After the divorce in 1962, William White married the defendant. She is named as a defendant, individually, and as executrix of the estate of William White.
A threshold preliminary or procedural problem exists. Should this appeal from the partial summary judgment be dismissed for lack of a final, appealable order? Counsel of record for the parties do not contend it is not a reviewable order, and agree that the summary judgment of the trial court, for practical purposes, is substantially dispositive of all the issues raised by the pleadings. Further, both parties through counsel stipulated at the oral argument in this court that the judgment entered by the trial court granting partial summary judgment should be amended, nunc pro tunc, to add the phrase 'no just cause for delay,' as required by Civ.R. 54(B). It is so ordered. We will accordingly consider the partial summary judgment as a final reviewable order.
The provisions of the separation agreement between plaintiff and decedent, William White, which give rise to this controversy between plaintiff and the defendant are paragraphs 2, 6, and 7 of the 1962 agreement and a 1969 written modification, as follows:
'2. The Party of the First Part will make all contractual arrangements with the Cedars Rest Home of Sandusky, Ohio, for the care, maintenance and support of the Party of the Second Part, Ruth Marie White and pay for said care, maintenance and support for as long as she lives, it being understood and agreed that if for any reason she is unable to remain at the Cedars Rest Home or the Cedars Rest Home shall close the Party of the First Part is bound to place the Party of the Second Part in a home of like standing and services and for like cost. * * *
'6. It is further agreed by and between the parties, their heirs, assigns and administrators that the $10,000.00 hereinabove referred to shall be placed in savings account and shall draw interest until same is there for six full years and beginning the seventh year the escrow agent is hereby authorized to use so much of said funds for the care, maintenance and support of the Party of the Second Part at the Cedars Rest Home or a like institution and in the event that the Party of the First Part shall have died in the meantime and there is no way that the Party of the Second Part can enforce payments for medical, dental or eye care, then the escrow agent is authorized to use whatever sum that is necessary, in addition to care and keep for the payment of said services.
Modified paragraph 7 provides:
'It is further agreed by and between the parties that if the Party of the Second Part should die any time and any and all of the $10,000.00 is unused, the Party of the First Part shall provide for a respectable burial for the Party of the Second Part and the balance of the funds shall go to the Party of the First Part, and in the event the Party of the First Part has predeceased the Party of the Second Part then the balance of said funds shall go to Laurine White, present wife of the Party of the First Part.' (Emphasis ours.)
The trial court construed these written provisions so that the escrow fund of $10,000 created by paragraph 6 was subject to the continuing care of plaintiff 'as long as she lives' as specified in paragraph 2, and that the estate of William White was obligated to pay 'for said care, maintenance and support for as long as she lives' as was necessary for plaintiff as provided in paragraph 2, over and beyond the $10,000 escrow fund.
Defendant contends that upon the death of William White in 1973, the defendant, Laurine White, was entitled to the balance of the $10,000 escrow fund by virtue of the 1969 modified paragraph 7, particularly the last clause thereof which reads:
'* * * and in the event the Party of the First Part has predeceased the Party of the Second Part then the balance of said funds shall go to Laurine White, present wife of the Party of the First Part.'
We disagree with defendant's contention and affirm the judgment of the lower court.
This is the legal issue to be decided. Did the decedent William White, by his written separation agreement, intend: (1) to obligate his $10,000 escrow fund created by paragraph 6 to provide care for plaintiff for as long as she...
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