[Cite as McQuaide v. McQuaide, 2011-Ohio-273.]


                                     COURT OF APPEALS
                                    STARK COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT



MARGARET CLAY MCQUAIDE,                             JUDGES:
ADMINISTRATRIX OF THE                               Hon. W. Scott Gwin, P.J.
ESTATE OF KEVIN DAVID                               Hon. Sheila G. Farmer, J.
MCQUAIDE                                            Hon. John W. Wise, J.

       Plaintiff-Appellant

-vs-                                                Case No. 2010CA00114

PATRICIA A. MCQUAIDE

       Defendant-Appellee                           OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Court of Common Pleas,
                                                 Case No. 2009CV04188



JUDGMENT:                                        Affirmed




DATE OF JUDGMENT ENTRY:                          January 24, 2011




APPEARANCES:

For Plaintiff-Appellant                          For Defendant-Appellee

EARL C. SHEEHAN                                  KENNETH L. GIBSON
220 Market Avenue South                          234 Portage Trail
Suite 1140                                       Cuyahoga Falls, OH 44221
Canton, OH 44702
Stark County, Case No. 2010CA00114                                                    2

Farmer, J.

       {¶1}   On May 15, 2001, Kevin McQuaide and appellee, Patricia McQuaide,

were granted a divorce. Mr. McQuaide was ordered to maintain a term life insurance

policy naming appellee as an irrevocable beneficiary for as long as he had a spousal or

child support obligation.

       {¶2}   On September 14, 2009, Mr. McQuaide passed away. At the time of his

death, he was married to appellant, Margaret Clay McQuaide. Appellee was the sole

beneficiary of a $100,000 life insurance policy issued by Northwestern Life Insurance

Company.

       {¶3}   On October 29, 2009, appellant, as Administratrix of the Estate of Kevin

David McQuaide, filed a complaint against appellee and Northwestern seeking a

constructive trust on the insurance proceeds.        Appellant claimed the intent of the

Northwestern policy was to secure Mr. McQuaide's spousal and/or child support

obligations and once those obligations were met, the policy's proceeds should go to the

estate. An amended complaint was filed on November 3, 2009.

       {¶4}   On February 10, 2010, appellee filed a motion for summary judgment. By

judgment entry filed April 16, 2010, the trial court granted the motion.

       {¶5}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶6}   "THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT IN SUSTAINING THE MOTION FOR SUMMARY JUDGMENT OF

DEFENDANT-APPELLEE."
Stark County, Case No. 2010CA00114                                                   3


                                           I

      {¶7}   Appellant claims the trial court erred in granting summary judgment to

appellee. We disagree.

      {¶8}   Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:

      {¶9}   "Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (1) no genuine issue as to any material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it

appears from the evidence that reasonable minds can come to but one conclusion, and

viewing such evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made. State

ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,

364 N.E.2d 267, 274."

      {¶10} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30

Ohio St.3d 35.

      {¶11} Appellant argues she is entitled to the creation of a constructive trust on

the insurance proceeds because with Mr. McQuaide's death, the child support obligation

ceased and the term insurance policy had no value to the child support obligation;
Stark County, Case No. 2010CA00114                                                       4


therefore, the proceeds should inure to the estate. Appellant argues the Supreme Court

of Ohio has endorsed this theory in Ferguson v. Owens (1984), 9 Ohio St.3d 223, 226:

         {¶12} "A constructive trust is, in the main, an appropriate remedy against unjust

enrichment. This type of trust is usually invoked when property has been acquired by

fraud.    However, a constructive trust may also be imposed where it is against the

principles of equity that the property be retained by a certain person even though the

property was acquired without fraud. See 53 Ohio Jurisprudence 2d (1962) 578-579,

Trusts, Section 88; V Scott on Trusts (3 Ed.1967) 3412, Section 462.

         {¶13} "In applying the theories of constructive trusts, courts also apply the well

known equitable maxim, 'equity regards done that which ought to be done.'

         {¶14} "Although this case presents issues somewhat novel to the reported

decisions of this court, we find that other jurisdictions have been confronted with

somewhat similar questions, and have applied the doctrine of constructive trust in

situations involving after-acquired life insurance policies in determining the equities as

between the title owner of such policies and those who were to be named beneficiaries

by the terms of a separation agreement embodied within a divorce decree.              See

Travelers Ins. Co. v. Daniels (C.A. 7, 1981), 667 F.2d 572; Appelman v. Appelman

(1980), 87 Ill.App.3d 749, 43 Ill.Dec. 199, 410 N.E.2d 199; Brunnenmeyer v. Mass. Mut.

Life Ins. Co. (1979), 66 Ill.App.3d 315, 23 Ill.Dec. 652, 384 N.E.2d 446; Lincoln National

Life Ins. Co. v. Watson (1979), 71 Ill.App.3d 900, 28 Ill.Dec. 339, 390 N.E.2d 506;

McKissick v. McKissick (1977), 93 Nev. 139, 560 P.2d 1366; General American Life Ins.

Co. v. Rogers (Mo.App.1976), 539 S.W.2d 693."
Stark County, Case No. 2010CA00114                                                     5

       {¶15} The Ferguson court determined summary judgment was not appropriate in

the case because there were facts to be determined as to the acquisition of the life

insurance policy subsequent to the divorce. In the matter sub judice, the facts are clear

and unambiguous as to the language of the divorce decree, and Mr. McQuaide properly

followed its dictates:

       {¶16} "So long as Husband has a spousal or child support obligation, he shall

maintain a term life insurance policy in the face amount of $100,000.00 naming Wife as

an irrevocable beneficiary. Husband shall provide proof to Wife on a semi-annual basis

(June and December or each year) of the existence of the policy, and Wife's designation

as a beneficiary thereon."     See, Separation Agreement, attached to May 15, 2001

Decree of Divorce, attached to Stipulation filed February 12, 2010 as Exhibit A.

       {¶17} In paragraph three of her complaint filed October 29, 2009, appellant

acknowledged the following:

       {¶18} "For the sole purpose of securing spousal and child support obligation,

decedent agreed in the divorce settlement to maintain a life insurance policy in the face

amount of $100,000, naming defendant Patricia McQuaide beneficiary. Said obligations

have been paid, with the possible exception (subject to verification by the domestic

relations court) of a small amount owing on one child, Megan."

       {¶19} Appellant further acknowledged in her affidavit filed March 1, 2010 that at

the time of Mr. McQuaide's death on September 14, 2009, Megan was an

unemancipated child and was still receiving child support until her graduation in May of

2010. We find with no facts in dispute, summary judgment was an appropriate vehicle

to resolve the issues in this case.
Stark County, Case No. 2010CA00114                                                      6


      {¶20} It is appellant's position that equity requires that the proceeds of the

insurance policy inure to the estate. We disagree with this position. The very language

of the decree states "[s]o long as husband has a spousal or child support obligation***."

At the time of Mr. McQuaide's death, he still had a child support obligation. Therefore,

the policy's beneficiary designation remained appellee.

      {¶21} Although appellant now argues it is an unjust windfall to appellee, the

contractual language requires such an interpretation. We note the divorce decree at

Section 19 was very specific as to the parties' rights of inheritance terminating upon

divorce, yet permitted the irrevocable beneficiary designation to last up to and including

the last child support payment.

      {¶22} Upon review, we cannot find that equity requires the creation of a

constructive trust in this case. The trial court did not err in granting summary judgment

to appellee.

      {¶23} The sole assignment of error is denied.
Stark County, Case No. 2010CA00114                                               7


      {¶24} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




                                       s/ Sheila G. Farmer_     _____________




                                      _s/ W. Scott Gwin       ________________




                                      _s/ John W. Wise    _________________

                                                      JUDGES
SGF/sg 112
Stark County, Case No. 2010CA00114                                                 8


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



MARGARET CLAY MCQUAIDE,                 :
ADMINISTRATRIX OF THE ESTATE            :
OF KEVIN DAVID MCQUAIDE                 :
                                        :
       Plaintiff-Appellant              :
                                        :
-vs-                                    :         JUDGMENT ENTRY
                                        :
PATRICIA A. MCQUAIDE                    :
                                        :
       Defendant-Appellee               :         CASE NO. 2010CA00114




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.




                                         s/ Sheila G. Farmer_     _____________




                                        _s/ W. Scott Gwin       ________________




                                        _s/ John W. Wise    _________________

                                                        JUDGES
