[Cite as Campbell v. Campbell, 2012-Ohio-3059.]


                                      COURT OF APPEALS
                                    MORGAN COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



MARY JANE CAMPBELL                                   JUDGES:
                                                     Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellant                          Hon. William B. Hoffman, J.
                                                     Hon. John W. Wise, J.
-vs-
                                                     Case No. 12 AP 0001
EDWINA KAYE CAMPBELL, Executor
of the Estate of RAYMOND DEAN
CAMPBELL, Deceased

        Defendant-Appellee                           OPINION




CHARACTER OF PROCEEDING:                          Civil Appeal from the Court of Common
                                                  Pleas Case No. 11 CV 0028


JUDGMENT:                                         Reversed and Remanded



DATE OF JUDGMENT ENTRY:                           July 2, 2012



APPEARANCES:

For Plaintiff-Appellant                           For Defendant-Appellee

BRADLEY R. WRIGHTSEL                              RICHARD L. ROSS
WRIGHTSEL & WRIGHTSEL                             1800 Pleasant Valley Road
3300 Riverside Drive, Suite 100                   Malta, Ohio 43758-9646
Columbus, Ohio 43221
Morgan County, Case No. 12 AP 0001                                                          2

Wise, J.

            {¶1}   Appellant Mary Jane Campbell appeals the decision of the Court of

    Common Pleas, Morgan County, which granted summary judgment in favor of

    Appellee Edwina Kaye Campbell, Executor of the Estate of Raymond Dean Campbell,

    in a dispute centering on a life insurance provision in appellant’s divorce decree. The

    relevant facts leading to this appeal are as follows.

            {¶2}   On February 1, 1987, appellant was granted a divorce from the late

    Raymond Campbell [hereinafter “Raymond”] in the Morgan County Court of Common

    Pleas. Appellant and Raymond had two children, both of whom were emancipated prior

    to the proceedings leading to the within appeal. The divorce decree incorporated an

    agreement which included the following provision, in pertinent part:1

            {¶3}   “The Defendant [Raymond] shall maintain life insurance policies

    equivalent to his existing policies with the Plaintiff [Appellant Mary Jane Campbell] as

    beneficiary, as may be currently in effect through his employment (in the approximate

    amount of $80,000.00) for so long as he is obligated to pay child support and alimony

    ***.”

            {¶4}   Divorce Decree, February 1, 1987, at 5.




1
     Appellant consistently refers to the divorce decree as incorporating a separation
agreement. This is difficult to verify, as we can locate no written separation agreement
attached to the 1987 divorce decree in this case, although we have not been provided
with the divorce court file. Instead, the terms of the divorce are all set forth in the decree
itself, which states at its outset that the domestic relations court had “take[n] testimony,
receive[d] evidence and approve[d] the in-court memorandum agreement of the
parties.” Decree at 1. Because this assertion of a “separation agreement” by appellant is
uncontested by appellee, we assume for the purpose of these proceedings that
appellant and Raymond did indeed negotiate and agree in a separation agreement to
an $80,000.00 life insurance policy being maintained with appellant as the beneficiary.
Morgan County, Case No. 12 AP 0001                                                    3


        {¶5}   The divorce decree also ordered Raymond to pay alimony of $1,000.00

per month, subject to the court’s continuing jurisdiction. The alimony was “terminable

upon the death of the Plaintiff [Appellant Mary Jane] or her subsequent remarriage.” Id.

at 3.

        {¶6}   Raymond died in May 2010. By that time, he had married Appellee

Edwina Kaye Campbell, who ultimately became the executor of his estate. Appellant

Mary Jane Campbell did not remarry prior to Raymond’s death.

        {¶7}   At the time of his death, Raymond owned a life insurance policy issued by

Transamerica Occidental Life Insurance Company with a death benefit amount of

$200,000.00. The policy specifically designated appellant as beneficiary of $50,000.00

of that amount, while designating his spouse at time of death (i.e., appellee) as

beneficiary of the remaining $150,000.00.

        {¶8}   On October 4, 2010, appellant filed a claim against Raymond’s estate,

seeking the full $80,000.00 as per the aforesaid divorce decree. Appellee, as executor,

did not challenge the claim for $50,000.00, but rejected appellant’s claim for the

remaining $30,000.00.

        {¶9}   On February 28, 2011, appellant filed an action against appellee in the

Morgan County Court of Common Pleas, General Division, captioned as a “Complaint

on Rejected Claim,” seeking payment of $80,000.00 and other relief.

        {¶10} Each side thereafter filed motions for summary judgment. On January 12,

2012, the trial court granted summary judgment in favor of appellee.

        {¶11} Appellant filed a notice of appeal on February 1, 2012. She herein raises

the following sole Assignment of Error:
Morgan County, Case No. 12 AP 0001                                                        4


      {¶12} “I.    THE TRIAL COURT ERRED AS A MATTER OF LAW BY

IMPROPERLY REFUSING TO ENFORCE THE TERMS OF A DIVORCE DECREE

INCORPORATING THE PARTIES’ SEPARATION AGREEMENT.”


                              Summary Judgment Standard


      {¶13} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. An

appellate court, as recognized in Smiddy, thus reviews summary judgment issues de

novo. Etto v. Alliance Tubular Products Co., Stark App.No. 2003CA00202, 2004-Ohio-

3486, ¶ 18. Civ.R. 56 provides, in pertinent part: “Summary judgment shall be rendered

forthwith if the pleadings, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence in the pending case and written stipulations of fact, if

any, timely filed in the action, show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law. * * * A

summary judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable minds can come

to but one conclusion and that conclusion is adverse to the party against whom the

motion for summary judgment is made, that party being entitled to have the evidence

or stipulation construed most strongly in the party's favor.”

                                                I.

      {¶14} In her sole Assignment of Error, appellant contends the trial court erred in

granting summary judgment in favor of appellee on appellant’s action for a rejected
Morgan County, Case No. 12 AP 0001                                                        5


claim against her ex-husband’s estate based on the 1987 divorce decree terms. We

agree.

      {¶15} It is well-established that separation agreements are subject to the same

rules of construction as other types of contracts. Brown v. Brown (1993), 90 Ohio

App.3d 781, 784, 630 N.E.2d 763. We must simultaneously recognize, however, that

simply because a court, in its divorce decree, adopts the language of a separation

agreement, “it does not thereby reduce the status of the decree to that of a mere

contract.” See Robrock v. Robrock (1958), 167 Ohio St. 479, 488, 150 N.E.2d 421

(internal citation omitted), overruled in part by Nokes v. Nokes (1976), 47 Ohio St.2d 1,

351 N.E.2d 174. Furthermore, “[a] clear majority of Ohio's appellate courts that have

addressed the issue have concluded that an order to maintain life insurance to secure

spousal support is within the discretion of the trial court; a court is not required to make

the order, but may do so within certain limits.” Vlah v. Vlah, Geauga App.No. 97-G-

2049, 1997 WL 750812 (internal emphasis deleted).

      {¶16} Our first step in the present appeal is to inspect the life insurance

provision language in the separation agreement and try to determine the intent of the

parties thereto, in this case appellant and Raymond. Generally, if the terms of a

separation agreement are unambiguous, a trial court may not clarify or interpret those

terms. Butcher v. Butcher, Cuyahoga App.No. 95758, 2011-Ohio-2550, ¶ 11 (citations

omitted). In other words, “ *** if the language of a written instrument is clear and

unambiguous, the interpretation of the instrument is a matter of law and the court must

determine the intent of the parties using only the language employed.” Woronka v.
Morgan County, Case No. 12 AP 0001                                                      6

Woronka, Stark App.No. 2010CA00193, 2011–Ohio–498, ¶ 9, citing Ruthrauff v.

Ruthrauff, Stark App. No. 2009–CA–00191, 2010–Ohio–887.

      {¶17} As noted previously, the decree in the case sub judice, in pertinent part,

required Raymond to maintain life insurance policies, equivalent to his then-existing

policies, with appellant as beneficiary, in the “approximate amount” of $80,000.00 “for

so long as he is obligated to pay child support and alimony ***.” Divorce Decree,

February 1, 1987, at 5.

      {¶18} We thus first observe that the plain language of the decree indicates

Raymond’s duty to maintain the life insurance policy was conditioned on his obligation

to pay child support and alimony. One interpretation could be to read the decree’s

requirement in the conjunctive and possibly conclude that Raymond’s duty to keep the

life insurance policy in effect had expired prior to the time of his death, as he had long

since finished paying child support for the youngest child of the former couple.

However, this Court has recognized that although the word “and” is usually interpreted

in the conjunctive, we are permitted to interpret it in the disjunctive “if the sense

requires it.” See Health Administrators of America, Inc. v. American Medical Security,

Inc., Delaware App.No. 00CAE04009, 2001 WL 311007, citing Clagg v. Baycliffs Corp.

(1998), 82 Ohio St.3d 277, 280; R.C. 1.02. In the present context, we must decide if we

should read the phrase “child support and alimony” as meaning “child support or

alimony” if the plain meaning of the phrase would result in an unreasonable

construction. Taking into consideration appellant’s uncontested assertion that the

$80,000.00 policy was a term of the divorce which was negotiated and willingly agreed

to by both parties, we find it unreasonable that the policy requirement would have
Morgan County, Case No. 12 AP 0001                                                       7


expired as soon as the youngest child reached the age of majority and child support

payments ceased. If that were the case, it would not have been necessary to mention

the alimony obligation at all in the contractual phrase. It is more reasonable in this

context to read the phrase in the disjunctive, such that appellant and Raymond agreed

to the $80,000.00 life insurance policy as reinforcement for both the alimony and child

support payments, and that the life insurance policy would remain to benefit appellant

as long as child support or alimony was in place.

      {¶19} Our second observation in reading the provision at issue is that the

language does not specifically state that the life insurance policy is for the purpose of

securing or guaranteeing Raymond’s child support and alimony obligations. Appellee-

executor, in her response brief, nonetheless wholeheartedly asserts that the

$80,000.00 benefit was “clearly to secure” Raymond’s said obligations. Appellee’s Brief

at 5. However, appellant maintains that appellee cannot simply presuppose a purpose

for the life insurance obligation when the purpose is not made entirely clear. Appellant

cites Aetna Life Ins. Co. v. Hussey (1992), 63 Ohio St.3d 640, 644, 590 N.E.2d 724, for

the proposition that such a purpose must be “unambiguously communicated” in order

for a court to restrict the payment of proceeds from the policy based on satisfaction of

that purpose. See Appellant’s Brief at 8. Thus, argues appellant, where a decree or

separation agreement does not explicitly designate a purpose for a life insurance

provision, the purpose of the obligation is irrelevant and would not affect the validity of

said provision and obligation to provide the full survivor benefits to the ex-spouse.

      {¶20} Actually, however, the syllabus of Aetna reads: “Where a separation

agreement embodied in a divorce decree mandates insurance coverage and
Morgan County, Case No. 12 AP 0001                                                      8


unambiguously designates a purpose for which insurance proceeds are to be used by

certain beneficiaries, a constructive trust for that designated purpose is the appropriate

remedy to ensure that the proceeds are used for the purpose intended under the

agreement.” Id. Accordingly, despite appellant’s reading of Aetna, we find the Ohio

Supreme Court did not therein necessarily require the purpose for a life insurance

provision in a separation agreement or decree to be “unambiguously communicated” in

order for a reviewing court to consider the purpose behind the requirement. Rather, the

holding in Aetna reasons that, if the purpose is indeed unambiguously communicated

then the court is required to enforce the stated purpose. Under Aetna, we find we are

permitted to consider the purpose of the $80,000.00 benefit promise in deciding

whether or not to enforce it. In this instance, we find the only reasonable interpretation

of the life insurance requirement in the 1987 decree is that it was put in place to secure

the child support and/or alimony obligations.

        {¶21} Having reached this conclusion, the question remains of whether

appellant’s cause of action against appellee-executor can still succeed, and in what

amount. Pursuant to R.C. 3105.18(B), spousal support ends at death of either party,

unless the court orders otherwise. Appellee-executor, asserting that there are no

alimony arrearages and that the child support obligation is long past, maintains that the

insurance policy no longer had any “purpose” to secure the moment Raymond passed

away.

        {¶22} However, appellee-executor’s position would seem to make most divorce

provisions to secure child and/or spousal support via life insurance protection

effectively meaningless, should an obligor ex-spouse surreptitiously change or remove
Morgan County, Case No. 12 AP 0001                                                     9

the court-ordered beneficiary or benefit amount. In Matics v. Matics, Stark App.No.

1995CA00114, 1996 WL 132244, we held that placement of a life insurance policy

provision in a divorce decree was properly within the court’s discretion, and that it was

not necessary to include a provision for the payments to continue beyond the obligor’s

death. The Ohio Supreme Court’s decision in Kelly v. Medical Life Ins. Co. (1987), 31

Ohio St.3d 130 also weighs against appellee’s position. In that case, the ex-husband

had been ordered in his divorce to name his minor children as beneficiaries on his life

insurance “so long as his support obligation exists.” Id. at 130. The ex-husband died in

1984 without having named the children as beneficiaries on his life insurance issued by

Medical Life Insurance Company. Id. The Ohio Supreme Court rejected the argument

that the ex-husband’s obligation was limited to the remaining amount of unpaid child

support to accrue until the children were emancipated. The Court stated: “This clause

does not limit the amount of life insurance proceeds to which appellants would be

entitled. It limits only the period of time during which they are entitled to be named

beneficiaries. Had James Kelly fulfilled his obligation to designate appellants as

beneficiaries before he died, the entire policy proceeds would have been payable to

appellants without regard to any unpaid balance of child support payments.” Id. at 132,

emphasis in original.

      {¶23} Accordingly, in the case sub judice, we hold that because appellant was

still entitled to receive alimony payments at the time of Raymond’s death, appellant is

entitled to the full $80,000.00 benefit as set forth in the divorce decree, and that the

estate must be responsible for the $30,000.00 shortfall created by Raymond’s prior
Morgan County, Case No. 12 AP 0001                                                   10


    decrease of the benefit amount in violation of the divorce decree.2 The trial court

    therefore erred in granting summary judgment in favor of appellee-executor.

         {¶24} Appellant's sole Assignment of Error is sustained.

         {¶25} For the reasons stated in the foregoing, the decision of the Court of

    Common Pleas, Morgan County, is hereby reversed and remanded with directions to

    enter summary judgment in favor of appellant on her complaint for the rejected claim

    against the executor.


By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.



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                                              ___________________________________

                                                                    JUDGES
JWW/d 0615




2
  Because this case involves a specific lump sum, we find the constructive trust remedy
set forth in Aetna, supra, would be inapplicable and unnecessary.
Morgan County, Case No. 12 AP 0001                                           11


            IN THE COURT OF APPEALS FOR MORGAN COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




MARY JANE CAMPBELL                          :
                                            :
       Plaintiff-Appellant                  :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
EDWINA KAYE CAMPBELL, Executor              :
of the Estate of RAYMOND DEAN               :
CAMPBELL, Deceased                          :
                                            :
       Defendant-Appellee                   :         Case No. 12 AP 0001




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

judgment of the Court of Common Pleas of Morgan County, Ohio, is reversed and

remanded for further proceedings consistent with this opinion.

       Costs assessed to appellee.




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                                                                 JUDGES
