
NOS. 4-97-0212, 4-97-0394 cons.



IN THE APPELLATE COURT



OF ILLINOIS



FOURTH DISTRICT



In Re:  the ESTATE OF MICHAEL G. 		)	Appeal from

DOWNEY, Deceased,					)	Circuit Court of	

BRIAN M. DOWNEY, Individually, and		)	Sangamon County

ARON P. DOWNEY and EVAN G. DOWNEY,		)	No. 95P180

Minors, by their Mother and Next 		)	

Friend, CYNTHIA ANN DOWNEY,			)

Petitioners-Appellants,		)

v.						)	

LOUELLA MARIE DOWNEY, Executor of the	)	Honorable

Estate of Michael G. Downey, Deceased,	)	Leo J. Zappa, Jr.,

Respondent-Appellee.		)	Judge Presiding.

_________________________________________________________________







JUSTICE COOK delivered the opinion of the court:



Michael G. Downey, the decedent, and Cynthia Downey had three children, Brian, Aron, and Evan, the claimants appel­lants herein.  Michael and Cynthia were divorced on February 8, 1991.  Their judgment of dissolution contained the following paragraph:

"D.  That petitioner and respondent will 

maintain life insurance policies on themselves 

and shall name the children of the parties as 

irrevo­cable beneficia­ries until such time as 

the youn­gest child has reached his 18th birth-

day."  

The record does not indicate whether paragraph D was the result of an agreement by the parties or whether it was ordered by the court on its own initiative.  		

At the time of the judgment, Michael had two group life insur­ance poli­cies in the total face amount of $55,000 through

his employ­er, the Highland, Illinois, school district.  In the fall of 1992, Michael left his employment with the school dis­trict to attend nursing school, resulting in the termination of the two group policies.  In December 1992, Michael purchased a life insurance policy in the face amount of $300,000 from the Valley Forge Life Insurance Company.  Michael had married Louella Downey, the executor herein, in June 1991, and he originally designated Louella as the primary beneficiary of the $300,000 policy, with his chil­dren as contingent benefi­cia­ries.  Louella testified the desig­nation was a mistake, and, shortly after receipt of the policy, Michael changed the designa­tion so that Louella would receive two-thirds of the policy amount and his chil­dren would receive one-third.  

In April 1994, Michael was diagnosed with cancer.  At that time, in connection with the execution of a will, he changed the beneficiary of the $300,000 policy to his estate.  His will, dated April 28, 1994, provided that Cynthia be paid a portion of the policy pro­ceeds in "the amount necessary to fund the balance of the child support obligation I would have at the time of my death under the existing Court Order in cause #91-D-47."  The residue of the estate was left one-third to the chil­dren and two-thirds to Louella.  Each child's share was left in trust, with Louella as trustee, until the child reached age 21.  The trustee was allowed a fee not to exceed 5% of the annual trust income.  Except for the amounts she received as child support, Cynthia was not to have any control over any part of Michael's estate.  In December 1994 Michael exercised his right under the $300,000 policy to purchase additional insurance, a separate policy in the amount of $150,000.    

Michael died March 8, 1995, and Louella was appointed his executor.  At the time of Michael's death, all three children were minors, in the custody of Cynthia.  Louella declined to act as trustee of the children's trust and the First National Bank of Central Illi­nois was appointed by the court to act in her place.  The inven­tory listed (1) the policy proceeds, (2) household fur­nish­ings and personal effects worth $1,000, (3) silver worth $2,616.50, and (4) five shares of McCulloch Oil Corporation stock of unknown value.  Michael and Louella's residence was titled in Louella's name alone and not inventoried.  Louella filed a current account that showed $472,117.84 in receipts (including $453,540.65 from the Valley Forge Life Insurance Company) and $119,613.92 in disbursements (including $103,205.73 to Louella's mother to pay off a loan secured by the residence).  The report was approved by the trial court.  

The trial court ordered that each of the children receive $5,000 of the assets of the estate as a surviving child's award.  See 755 ILCS 5/15-2 (West 1994).  Brian's $5,000 was ordered paid to him direct­ly, as he had attained the age of majority.  Aron's and Paul's awards were to be paid to Cynthia, as their guardian and next friend.  The trial court also ordered that "the children are entitled to a total amount of back [actu­ally fu­ture] child support in the amount of $7,250."  See 750 ILCS 5/510(d) (West 1994).  

Cynthia, as mother and next friend of the children, filed a claim in the estate.  In a memorandum in support of that claim, Cynthia argued that the children were entitled to the entire proceeds of the $300,000 policy and the proceeds of the $150,000 policy as well.  Cynthia also argued that the pro­ceeds should not be held in the children's trust created by the will.  Cynthia later abandoned any claim to the proceeds of the $150,000 policy.  It is interesting to note that under Michael's will the children will receive one-third of Michael's entire estate, includ­ing the $150,000 policy, although that amount will be subject to debts of the estate and must be held for a period of time in the children's trust.  Cynthia, on behalf of the chil­dren, appeals the trial court's order that the chil­dren were entitled only to one-third of the $300,000 policy, and that those proceeds should be placed in the children's trust.  We affirm.  

Section 15-2 of the Probate Act of 1975 provides for a surviv­ing child's award in the amount of $5,000.  755 ILCS 5/15-2 (West 1994).  A court in a dissolu­tion of marriage case does not have the power to in­crease that amount.  A court in a disso­lu­tion of mar­riage case does not have the power to order that a parent leave a certain amount of property to his child by will.  
In re Marriage of Bush
, 191 Ill. App. 3d 249, 262, 547 N.E.2d 590, 597 (1989) ("an unlawful court-ordered inheritance"); 
In re Marriage of Rogliano
, 
198 Ill. App. 3d 404, 416, 555 N.E.2d 1114, 1121-22 (1990).  Provi­sions for child support, howev­er, are not terminat­ed by the death of a parent obligated to support the child (750 ILCS 5/510(d)(West 1994), and the court may order assets set aside "in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, depen­dent, or incom­petent child."  750 ILCS 5/503(g) (West 1994).  Postmajority support is possible under the Illinois Marriage and Disso­lution of Mar­riage Act.  750 ILCS 5/513 (West 1994).  Under these author­i­ties, the court may require a spouse who was ordered to provide child support to secure the continua­tion of such support by maintaining certain life insur­ance policies and naming the child as irrevoca­ble beneficiary of such policies.  See 
In re Marriage of Clarke
, 125 Ill. App. 3d 432, 436-37, 465 N.E.2d 975, 978 (1984) (holding that a court could not order life insurance to secure mainte­nance); 
cf.
 
In re Marriage of Vernon
, 253 Ill. App. 3d 783, 788-89, 625 N.E.2d 823, 827-28 (1993).  Even where the court has no power to order that life insurance be main­tained, the parties may voluntarily agree to do so.  The parties do not dispute that the court had the power to enter paragraph D in this case.         

A number of cases have addressed the situation where a beneficiary designation is not changed after the disso­lution of mar­riage.  A former spouse who is the desig­nat­ed benefi­cia­ry on an insur­ance policy is not barred from collect­ing the proceeds upon the death of the insured merely because they have divorced.  
Allen v. Allen
, 226 Ill. App. 3d 576, 582, 589 N.E.2d 1133, 1137 (1992).  Neverthe­less, a property settlement agreement, or a reference to life insurance in a judgment of dissolution, may limit or termi­nate a former spouse's right even without a change of beneficia­ry where such limita­tion or termi­nation is suffi­ciently specif­ic.  
Allen
, 226 Ill. App. 3d at 584-85, 589 N.E.2d at 1139; 
Principal Mutual Life Insurance Co. v. Juntunen
, 189 Ill. App. 3d 224, 226, 545 N.E.2d 224, 225 (1989); 
O'Toole v. Central Laborers' Pension & Welfare Funds
, 12 Ill. App. 3d 995, 997, 299 N.E.2d 392, 393-94 (1973).  See also 760 ILCS 35/1(a)(1994) (disso­lution of marriage revokes provisions of trusts executed prior to judgment, to extent revocable).  The converse situation is pre­sented in this case, where the children were not named as benefi­ciaries in any poli­cies, but the judgment of dissolution required that they be named. 
    

It is difficult to state a general rule that applies to these cases because there are so many factual variations.  We should attempt to give effect to the intent of the court that entered the judgment of dissolution and to the interpretation by the parties of any agreed order.  
In re Knazze
, 259 Ill. App. 3d 410, 414, 632 N.E.2d 162, 165 (1994).  Where the former spouse or the benefi­cia­ries are to be the beneficia­ries of a specific policy, they are entitled to any natural increases in that policy or any substi­tute policy.  
In re Schwass
, 126 Ill. App. 3d 512, 517, 467 N.E.2d 957, 962 (1984); 
Allen
, 226 Ill. App. 3d at 586, 589 N.E.2d at 1140 (beneficiaries of the policies and not of any dollar amount).  Where in­creases in that policy are ex­traor­di­nary, howev­er, and result from the policyholder's inten­tion to purchase addi­tional insur­ance, they are not covered by the judgment of disso­lution.  
McWhite v. Equitable Life Assurance Society
, 141 Ill. App. 3d 855, 865, 490 N.E.2d 1310, 1320 (1986); 
Allen
, 226 Ill. App. 3d at 588, 589 N.E.2d at 1141.  Any other con­struc­tion "would have elimi­nat­ed [the decedent's] ability to purchase from his employer any additional protection for a beneficiary not already named in the divorce decree."  
McWhite
, 141 Ill. App. 3d at 865, 490 N.E.2d at 1320.  The distinction that sometimes is attempted to be drawn between successor poli­cies and additional policies is an artifi­cial one.  
Knazze
, 259 Ill. App. 3d at 414, 632 N.E.2d at 165.  A policy­holder clearly has the right to purchase addi­tional insur­ance, and sometimes he may do so by increasing the amount of his existing policy, without taking out a separate policy.  

Where the policy referred to in the judgment has been allowed to lapse, the beneficiaries may have a constructive trust in a subsequent policy, even though there is no showing that the policyholder intended the second policy to replace the first.  
Perkins v. Stuemke
, 223 Ill. App. 3d 839, 585 N.E.2d 1125 (1992).  In 
Perkins
 a successor policy was arguably involved, and it could be argued there was a natural increase in that policy, but the court noted that the judg­ment of disso­lu­tion re­ferred to a "John Hancock insurance policy in the amount of $10,000" (223 Ill. App. 3d at 841, 585 N.E.2d at 1126) and held the specific reference to an amount was signif­i­cant.  Accord­ingly, although the succes­sor policy con­tained an acciden­tal death benefit of $10,000 in addition to the $10,000 standard benefit, the former spouse was entitled to a construc­tive trust only on the $10,000 standard benefit of the policy.  
Perkins
, 223 Ill. App. 3d at 846-47, 585 N.E.2d at 1130.  

In the present case, Michael intended to satisfy his obligation under the judgment of dissolution by his purchase of the $300,000 Valley Forge policy.  Cynthia argues that because Michael purchased only one policy, that entire policy must go to the benefit of his children and Louella cannot share in the proceeds.  We see no logic in that argument.  The $300,000 was not a natural increase in Michael's $55,000 school district group poli­cies or a natural increase in a succes­sor policy that only replaced the school district policies.            

The determination of a probate claim is a matter within the discretion of the trial court.  We will not reverse the determination of the trial court unless its findings are contrary to the manifest weight of the evidence or unless it has somehow abused its discretion in its ruling.  
In re Estate of Desisles
, 59 Ill. App. 2d 194, 201, 208 N.E.2d 122, 125 (1965).  We give the same deference to a trial court's decisions in dissolu­tion of marriage cases, including child support cases.  
In re Marriage of Davis
, 287 Ill. App. 3d 846, 852, 679 N.E.2d 110, 115 (1997).  We cannot say the trial court abused its discretion here in awarding the children one-third of the $300,000 policy.  

We now address Cynthia's contention that the proceeds of the policy should not be subject to the trust under Michael's will and that the proceeds should be paid directly to any chil­dren who are 18 and to her as guardian of the estate of any minor child.  Cynthia argues that she and the children are judgment creditors under the judgment of dissolution of marriage and that they bring this action as claimants against Michael's estate, not benefi­ciaries under his will.  If Michael acted properly in preparing the trust, however, Cynthia and the children should not be allowed to avoid the trust's provisions simply by filing a claim as creditors.  If that were possible, every trust benefi­ciary could avoid trust conditions by filing a claim.

The judgment of dissolution of marriage did not autho­rize Michael to make his life insurance payable to his estate or to make payments to his children subject to a trust.  On the other hand, the judgment did not prohibit such actions.  The judg­ment of dissolution required Michael to name his children as irrevocable beneficiaries, apparently of his school district group policies, until the youngest child was 18.  That became impossible when Michael left his employment with the school district.  Nothing in the judgment of dissolution addressed replacement policies, and neither party sought any clarification or modification after Michael left his employment.  It appears that Michael acted in good faith to replace his insurance cover­age and that the replacement cover­age, payable into the estate and subject to the trust, substan­tially complied with the judg­ment of dissolu­tion.  Even married parents who leave large sums of money to their children may choose to stretch out the distri­bution of those sums, instead of distributing the entire amount to the child at age 18.  The refer­ence to age 18 in the judg­ment of disso­lu­tion deals only with Michael's obliga­tion to provide insurance and does not indicate that any partic­ular child is to receive his benefit at age 18.  There is no indica­tion that the best inter­ests of the chil­dren are ad­versely affected by the trust.  

Although a custodian has the right to "determine the child's upbringing, including but not limited to, his education, health care and religious training" (750 ILCS 5/608(a) (West 1994)), the noncustodian retains certain responsibilities as well  (750 ILCS 5/602.1(a) (West 1994)).  We would not allow the obligor to control a custodian's use of child support funds (see 1 H. Gitlin, Gitlin on Divorce §10-5, at 381 n.374, 382 n.375 (2d ed. 1997)), but Cynthia has been paid outright all child support through the majority of each child.  Cynthia argues that the children's trust will be subject to trustee's fees, fees greater than Michael authorized in his will, but overall the children have benefitted from Michael's will over what they would have taken under the school district group policies.  It was Michael's obliga­tion to provide substi­tute insur­ance, and we cannot say that his perfor­mance of that obliga­tion violat­ed the terms of the judgment of dissolution or any rights of Cynthia or the children.  See 
In re Marriage of Marthens
, 215 Ill. App. 3d 590, 598-99, 575 N.E.2d 3, 9 (1991).   

Accordingly, we affirm the judgment of the circuit court.

Affirmed.

STEIGMANN, P.J., and McCULLOUGH, J., concur.

