












 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
 2-07-351-CV
 
 
BRENDA GRAY                                                                   APPELLANT
 
                                                   V.
 
MARIA GLORIA NASH                                                            APPELLEE
 
                                              ------------
 
            FROM
THE 17TH DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                             OPINION
 
                                              ------------
This is a life insurance
case.  The question before the court is
whether a disputed portion of the policy=s death benefit is payable to Appellant Brenda GrayCthe insured=s ex-wife
and the policy=s designated
beneficiaryCor to
Appellee Maria Gloria Nash (AGloria@)Cthe insured=s wife at
the time of his death.  We reverse the
trial court=s summary
judgment in favor of Gloria and render judgment in favor of Brenda.
 




                                            Background
The following facts are not
in dispute.  The decedent, Brent Nash,
and Brenda were divorced in 1997.  The
divorce decree required Brent, as Aadditional child support,@ to purchase a life insurance policy with a death benefit of at least
$60,000 and naming Brenda as irrevocable beneficiary as trustee for the benefit
of Brent and Brenda=s daughter,
Amanda. 
In July 1997, Brent purchased
a life insurance policy from Pan-American Life Insurance Co. with a death
benefit of $500,000 and designated Amanda as the beneficiary.  
Brent married Gloria in
1998.  In June 1998, Brent submitted a
change of beneficiary form to Pan-American. 
The new beneficiary designation states that A$60,000.00 shall be paid to [Brenda]. 
The balance of the net proceeds, if any, shall be paid to [Gloria],
wife.@  It is undisputed that Brent
never again changed the beneficiary designation thereafter. 
In July 2001, the divorce
court issued its AOrder in
Suit to Modify Parent-Child Relationship and Motion for Enforcement,@ appointing Brent to serve as Amanda=s primary joint managing conservator. 
The divorce court found that Brent was Acurrent in all child support and medical support payment obligations@ and ordered that Brent=s child support obligation was terminated. 




Brent died on October 14,
2006, in a motor vehicle accident. 
Gloria submitted his death certificate and a claim for payment of the
full $500,000 death benefit to Pan-American in December 2006.  Pan-American filed an interpleader action and
deposited $60,460.27 (the proceeds plus interest) into the trial court=s registry.  Pan-American paid
the rest of the death benefit to Gloria. 
By agreement of the parties, the trial court dismissed Pan-American from
the suit and awarded it costs of $1,500 out of the funds in the registry. 
Brenda and Gloria filed
traditional cross-motions for summary judgment. The trial court denied Brenda=s motion and granted Gloria=s and awarded Gloria the $58,960.27 remaining in the court=s registry.  Brenda filed this
appeal.
                                       Standard of Review




In a summary judgment case,
the issue on appeal is whether the movant met the summary judgment burden by
establishing that no genuine issue of material fact exists and that the movant
is entitled to judgment as a matter of law. 
Tex. R. Civ. P. 166a(c); Sw.
Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). We
review summary judgments de novo. 
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005);
Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002).  When both parties move for summary judgment
and the trial court grants one motion and denies the other, the reviewing court
should review both parties= summary judgment evidence and determine all questions presented.  Valence Operating Co., 164 S.W.3d at
661.  The reviewing court should render
the judgment that the trial court should have rendered.  Id.
                                             Discussion
Brenda argues that she is
entitled to the disputed policy proceeds because she is the policy=s designated beneficiary. 
Gloria argues that she is entitled to the proceeds because the divorce
court=s July 2001 order appointing Brent as Amanda=s primary joint managing conservator was the equivalent of a divorce
decree and terminated Brenda=s rights to the policy proceeds under family code section 9.301(a);
Brenda had no insurable interest in Brent=s life; family code section 154.015(f) imposes a constructive trust on
the proceeds as excess child support payments; and failure of consideration,
unjust enrichment, and estoppel preclude Brenda from collecting the proceeds.
1.                 
Under the express terms of the policy, Brenda is
entitled to the disputed proceeds as the policy=s
designated beneficiary.[1]
 




An insurance policy is a contract, and it is
governed by the same rules of construction applicable to all contracts.  Balandran v. Safeco Ins. Co., 972
S.W.2d 738, 740B41 (Tex.
1998).  The court=s
primary goal is to give effect to the written expression of the parties= intent.  Id. at 741.
In this case, the insurance contract provides as
follows:
We
will pay the life insurance proceeds upon proof the Insured died prior to the
Expiration Date.  The proceeds will be
paid to the Beneficiary. 
 
. . . .
 
You
may change any Beneficiary at any time during the Insured=s lifetime unless otherwise provided in
the previous designation.  The new
designation must be made by a signed notice in satisfactory form to our Home
Office.  The change will take effect on
the date the notice was signed subject to any action taken by us before
recording the change. 
 
It is undisputed that Brenda was the designated beneficiary of
$60,000 of the policy proceeds at the time of Brent=s
death.  Thus, under its contract of
insurance, Pan-American was obligated to pay $60,000 to Brenda upon Brent=s death.
The Texas Insurance Code compels the same
result.  Insurance code section 1103.102,
captioned APayment
to Designated Beneficiary,@
mandates that a life insurance company must pay a policy=s
death benefit to the policy=s
designated beneficiary:




Except
as provided by Subsection (b) or (c), if an individual obtains a policy
insuring the individual=s
life, designates in writing a beneficiary to receive the proceeds of the
policy, and files the written designation with the company, the company shall
pay the proceeds that become due on the death of the insured to the designated
beneficiary.
 
Tex. Ins. Code. Ann. ' 1103.102(a) (Vernon 2007).  Subsection (b) provides that the insurer is
not required to pay the proceeds of the policy to a designated beneficiary
under subsection (a) if the company receives notice of an adverse claim to the
proceeds from a person who has a bona fide legal claim to all or part of the
proceeds.  Id. ' 1103.102(b).[2]  Thus, but for notice of Gloria=s adverse claim to the proceeds,
section 1103.102 obliged Pan-American to pay the policy proceeds to Brenda.
We therefore hold that under the express terms of
the insurance contract, Brenda is entitled to the disputed proceeds. 
2.                 
Family code section 9.301.
Gloria argues that notwithstanding the plain
language of the policy and insurance code section 1103.102, Brenda is not
entitled to the proceeds by virtue of family code section 9.301(a).  That section, captioned APre‑Decree Designation of Ex‑Spouse
as Beneficiary of Life Insurance,@
provides in relevant part as follows:




(a)
If a decree of divorce or annulment is rendered after an insured has designated
the insured=s spouse
as a beneficiary under a life insurance policy in force at the time of
rendition, a provision in the policy in favor of the insured=s former spouse is not effective
unless:
 
(1)
the decree designates the insured=s
former spouse as the beneficiary;
 
(2)
the insured redesignates the former spouse as the beneficiary after rendition
of the decree; or
 
(3)
the former spouse is designated to receive the proceeds in trust for, on behalf
of, or for the benefit of a child or a dependent of either former spouse.
 
(b)
If a designation is not effective under Subsection (a), the proceeds of the
policy are payable to the named alternative beneficiary or, if there is not a
named alternative beneficiary, to the estate of the insured.
 
Tex. Fam. Code Ann. '  9.301 (Vernon 2006).  Gloria contends that the divorce court=s July 2001 order appointing Brent as
Amanda=s primary
managing conservator was the equivalent of a divorce decree, thus triggering
section 9.301 and nullifying Brent=s
1998 designation of Brenda as beneficiary, and that the difference between Aa decree of divorce or annulment@ and an order modifying the
parent-child relationship is merely a matter of semantics. 




When construing a statute, our goal is to ascertain and give effect to the legislature=s intent as expressed by the plain and common meaning of the statute=s words.  Tex. Gov=t Code Ann. ' 312.002 (Vernon 2005); F.F.P. Operating Partners, L.P. v. Duenez,
237 S.W.3d 680, 683 (Tex. 2007); Tex.
Dep=t of Transp.
v. City of Sunset Valley, 146 S.W.3d 637, 642
(Tex. 2004).  We begin with the statute=s plain language because we assume that the legislature tried to say
what it meant and, thus, that its words are the surest guide to its
intent.  Fitzgerald v. Advanced Spine
Fixation Sys., Inc., 996 S.W.2d 864, 865B66 (Tex. 1999).  In ascertaining
legislative intent, we do not confine our review to isolated statutory words,
phrases, or clauses, but we instead examine the entire act.  Meritor Auto., Inc. v. Ruan Leasing Co.,
44 S.W.3d 86, 90 (Tex. 2001); Rodgers v. Comm=n for Lawyer Discipline, 151 S.W.3d
602, 614 (Tex. App.CFort Worth
2004, pet. denied). It is a well‑settled rule of statutory construction
that every word of a statute must be presumed to have been used for a
purpose.  See Quick v. City of Austin,
7 S.W.3d 109, 123 (Tex. 1998); Laidlaw Waste Sys., Inc. v. City of Wilmer,
904 S.W.2d 656, 659 (Tex. 1995). 
Likewise, every word excluded from a statute must also be presumed to
have been excluded for a purpose.  Quick,
7 S.W.3d at 123; Laidlaw Waste Sys., Inc., 904 S.W.2d at 659.




The legislature specified
that only divorce decrees and annulments nullify beneficiary designations; we
must presume that it included those instruments, and excluded others, like
orders modifying the parent-child relationship, for a purpose.  See Tex.
Fam. Code Ann. '  9.301(a); Quick,
7 S.W.3d at 123; Laidlaw Waste Sys., Inc., 904 S.W.2d at 659.  Moreover, the legislature limited section
9.301=s nullifying effect to designations made before the decree or
annulment, at a time when the insured and the designated beneficiary are still
marriedCa circumstance not present in this case.
Because the unambiguous language
of section 9.301 limits its application to life insurance policies issued
before a trial court renders a decree of divorce or an annulment, we hold that
it does not apply in this case and does not nullify Brent=s designation of Brenda as beneficiary of the disputed proceeds.
3.                 
Insurable interest.




Gloria next argues that Brenda did not have an
insurable interest in Brent=s
life at the time of his death.  In a closely-related
argument, she contends that public policy prohibits Brenda from collecting the
policy proceeds.   We recently addressed a similar question in Allen v. United of
Omaha Life Insurance Co., 236 S.W.3d 315, 322B23
(Tex. App.CFort
Worth 2007, pet. denied).  In Allen,
the question was whether a limited partnership had a continuing insurable
interest in the life of its former CEO after his association with the
partnership ended.  Id. at
319.  We noted that under the common law,
the designated beneficiary of a life insurance policy must have an insurable
interest in the insured=s
life when the policy is issued and when the insured dies.  Id. at 322 (citing Torrez v.
Winn-Dixie Stores, Inc., 118 S.W.3d 817, 820 (Tex. App.CFort Worth 2003, pet dism=d)). 
Two policies drive the common law rule: A practice that encourages one
to take another=s life
should be prohibited, and no one should be permitted to wager on the life of
another.  Id. (citing Torrez,
118 S.W.3d at 820).
While the insurable-interest rule is still
followed by Texas courts, the legislature has enlarged the class of persons
deemed to have an insurable interest.  Id.  Under the insurance code, an individual
may apply for a life insurance policy on the individual=s
own life and designate as beneficiary any individual.  Tex.
Ins. Code Ann. '
1103.054 (Vernon 2007); Allen, 236 S.W.3d at 323.  Insurance code section 1103.053 further
provides that a beneficiary of a life insurance policy who is designated in
accordance with section 1103.054 has, at all times after the designation, an
insurable interest in the life of the individual who is insured under the
policy.  Tex. Ins. Code Ann. ' 1103.053;
Allen, 236 S.W.3d at 323.  Thus,
the legislature has conferred an insurable interest on those persons named by
an insured as beneficiaries in a policy on the insured=s
own life.  Allen, 236 S.W.3d at
323.




The cases cited by Gloria for the proposition that
a beneficiary must have a continuing insurable interest independent of the
beneficiary designation predate insurance code sections 1103.053 and 1103.054
and their predecessor.  See Tex. Ins. Code Ann. '' 1103.053, .054 (effective June 1,
2003); Act of April 30, 1953,
53rd Leg., R.S., ch. 113, '
1, 1953 Tex. Gen. Laws 400, repealed by Act of May 22, 2001, 77 Leg.,
R.S., ch. 1419,  ' 31(a),
2001 Tex. Gen. Laws 4208; Cheeves v. Anders, 87 Tex. 287, 28 S.W. 274,
275 (Tex. 1894); McBride v. Clayton, 140 Tex. 71,
166 S.W.2d 125,128B29 (Tex.
Comm=n App. 1942); Drane v. Jefferson Standard Life Ins. Co., 139
Tex. 101, 161 S.W.2d 1057, 1059 (Tex. Comm=n App. 1942); Whiteselle v. Nw. Mut. Life Ins. Co., 221 S.W.
575, 576 (Tex. Comm=n App.
1920), overruled in part on other grounds by Womack v. Womack, 141 Tex.
299, 172 S.W.2d 307, 308 (Tex. 1943). 
Gloria also cites Torrez as fundamentally indistinguishable from
this case.  But in Torrez, the
insured=s employerCnot the
insured himselfCtook out a
policy on the insured=s life.  Torrez, 118 S.W.3d at 819.  Thus, unlike this case, Torrez did not
implicate the continuing-insurable-interest provisions of insurance code
sections 1103.053 and 1103.054.
In Allen, we held that
because the CEO, himself, applied for the life insurance policy on his own life
and designated the partnership as the beneficiary, the partnership had, at the
policy=s inception and at all times thereafter, an insurable interest in the
CEO=s life, even after the CEO=s relationship with the partnership ended.  Allen, 236 S.W.3d at 323.  Likewise, in this case, Brent, himself,
applied for the life insurance policy on his own life and designated Brenda as
a beneficiary.  Thus, we hold that Brenda
had a continuing insurable interest in Brent=s life.




4.                 
Effect of termination of Brent=s
child support obligation.
Gloria next argues that because the life insurance
policy was security for Brent=s
child support obligation under the 1997 divorce decree, and the 2001 order
modifying the parent-child relationship terminated his child support
obligation, the sole reason for designating Brenda as beneficiary was
extinguished.  Gloria further argues that
allowing Brenda to collect the disputed proceeds is tantamount to an excess
child support payment, which Brenda would merely hold in constructive trust for
Brent=s
estate.  See Tex. Fam. Code Ann. ' 154.015(f) (Vernon 2007) (AIf money paid to the obligee for the
benefit of the child exceeds the amount of the unpaid child support obligation
remaining at the time of the obligor=s
death, the obligee shall hold the excess amount as constructive trustee for the
benefit of the deceased obligor=s
estate until the obligee delivers the excess amount to the legal representative
of the deceased obligor=s
estate.@).




Implicit in Gloria=s
arguments are the notions that the only reason Brent designated Brenda as
beneficiary was to comply with the divorce decreeCa
notion which Gloria calls an undisputed factCand
that he did not intend Brenda to receive any portion of the policy proceeds
after the 2001 modification order.  But
Brenda does dispute these assertions, and the record is silent as to why
Brent (1) designated Brenda as beneficiary in her individual capacity rather
than Aas
trustee for the benefit of the child@
as ordered by the divorce decree and (2) never undesignated Brenda as
beneficiary after the 2001 modification order terminated his child support
obligation.  There is no evidence in the
record that Brent obtained life insurance coverage solely to comply with the
divorce decree, and the only evidence of his intent regarding the disputed
proceeds is his unconditional and unambiguous designation of Brenda as
beneficiary.  Therefore, the record does
not support Gloria=s
argument that the policy proceeds are solely a form of child support, excess or
otherwise.




Nor do the foreign cases Gloria cites support her
argument that a beneficiary designation in favor of a former spouse is
ineffective when the insured=s
child support obligation ends.  In Caracansi
v. Caracansi, the Connecticut court of appeals held that a divorce court
erred by ordering a father to maintain a life insurance policy for the benefit
of his children after they reached the age of majority because the insurance
policy served solely as a means to secure payment of the father=s child support obligations.  496 A.2d 225, 227B28
(Conn. App. Ct. 1985).  Likewise, in H.P.A.
v. S.C.A., the Supreme Court of Alaska held that a divorce court could not
order a father to maintain a life insurance policy for the benefit of his
children past their ages of majority. 
704 P.2d 205, 211 (Alaska 1985). 
In Equitable Life Assurance Society v. Flaherty, a federal
district court in Alabama held that when a father failed to obtain a
divorce-court-ordered $10,000 life insurance policy for the benefit of his
minor child as security for child support payments, his ex-wife was entitled to
recover $10,000 for the benefit of the child from the only policy the father
had at the time of his death, even though it named his second wife as
beneficiary.  568 F. Supp. 610, 616 (D.C.
Ala. 1983).  In In re Marriage of
Weidner, the Iowa supreme court held that a divorce court had the
power to order a father to maintain an existing life insurance policy for the
benefit of his minor children.  338
N.W.2d 351, 360 (Iowa 1983).[3]




Thus, all of the cases Gloria cites support a
divorce court=s power
to order a parent to maintain life insurance for the benefit of the parent=s minor children, and some of the cases
recognize such insurance as security for the parent=s
support obligation.  To this extent, they
are consistent with Texas law.  See Tex. Fam. Code Ann. ' 154.006(a) (recognizing trial
court=s
authority to order that child support payments continue after obligor=s death); Miles v. Peacock, 229
S.W.3d 384, 389 (Tex. App.CHouston
[1st Dist.] 2007, no pet.) (recognizing trial court=s
authority to order parent to maintain life insurance for benefit of minor
children); Niskar v. Niskar, 136 S.W.3d 749, 759 (Tex. App.CDallas 2004, no pet.) (same); Grayson
v. Grayson, 103 S.W.3d 559, 563 (Tex. App.CSan
Antonio 2003, no pet.) (same).  But none
of the cases hold that termination of a child support obligation during the
child=s
minority overrides a life insurance policy=s
beneficiary designation in favor of the insured=s
former spouse.
Finding no support for Gloria=s argument in the record or the law, we
hold that the termination of Brent=s
child support obligation in 2001 does not override his designation of Brenda,
individually, as beneficiary of the disputed proceeds or result in an excess
child support payment.
5.                 
Gloria=s
remaining arguments.
GloriaCwithout
citation to any authorityCargues
(1) that failure of consideration and the doctrine of unjust enrichment
preclude Brenda=s
recovery of the policy proceeds because the divorce decree was a contract
between Brent and Brenda and Brenda failed to hold up her end of the bargain by
serving as Amanda=s primary
managing conservator after 2001; (2) that Brenda is estopped from claiming the
policy proceeds because she agreed in the divorce decree that Brent was
obligated to fund the life insurance policy only so long as he was obligated to
pay child support; and (3) that even if Brenda is entitled to the disputed
proceeds, Gloria is entitled to at least one-half of the value of the policy
premiums because Brent paid them with community property. 




An appellate brief must contain appropriate
citations to authorities.  Tex. R. App. P. 38.1(h),
38.2(a)(1).  An argument may be waived if
inadequately briefed.  Fredonia State
Bank v. Gen. Am. Life Ins. Co. , 881 S.W.2d 279, 284 (Tex. 1994).  Because Gloria cites no authority whatsoever
in support of these arguments, we hold that she has waived them.
6.                 
Allocation of costs awarded to Pan-American.




Brenda argues that she is entitled to recover from
Gloria the $1,500 in costs the trial court awarded to Pan-American out of the
disputed proceeds.  A party interpleading
funds may be entitled to have his attorney=s
fees deducted from the funds.  Foreman
v. Graham, 693 S.W.2d 774, 778 (Tex. App.CFort
Worth 1985, writ ref=d
n.r.e.).  Generally, the ultimate burden
between rival claimants should fall on the party whose unsuccessful claim
rendered the interpleader necessary.  Id.
(citing Monarch Tile Sales v. Frost Nat'l Bank, 496 S.W.2d 254, 255B56 (Tex. Civ. App.CSan Antonio 1973, no writ); Givens
v. Girard Life Ins. Co., 480 S.W.2d 421, 430 (Tex. Civ. App.CDallas 1972, writ ref=d n.r.e.) (op. on reh=g)). 
But in this case, Brenda and Gloria specifically agreed in the AJoint Stipulations and Motion for
Dismissal with Prejudice Regarding [Pan-American]@
that A[a]s a
disinterested stakeholder, Pan-American is entitled to recover its reasonable
attorney[>]s
fees, costs, and expenses, paid out of the interpleaded funds . . . in the
amount of $1,500.00.@
Because Brenda agreed to pay Pan-American=s
fees and costs out of the interpleaded funds, we hold that the trial court did
not err by so ordering.
                                                                     Conclusion
We sustain Brenda=s
sole issue.  We reverse the trial court=s judgment and render judgment in favor
of Brenda for the remaining policy proceeds on deposit in the trial court=s registry.
 
 
ANNE GARDNER
JUSTICE
 
PANEL B:   LIVINGSTON, HOLMAN, and GARDNER, JJ.
 
DELIVERED:  June 19, 2008
 




[1]Gloria
does not argue otherwise; instead, she argues that other factors preclude
Brenda=s
entitlement to the proceeds.  Thus, we
may curtail our analysis of this threshold issue.


[2]Subsection
(c) involves private placement contracts and is not relevant to this case.  See id. '
1103.102(c).


[3]Gloria
cites Weidner for the proposition that an order to maintain life
insurance may be invalid to the extent that the amount of insurance required
exceeds the insured=s
alimony or child support obligation.  The
case does not support or even discuss that proposition.


