                                                                                            March 8 2016


                                         DA 14-0747
                                                                                          Case Number: DA 14-0747

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 61



PAMELA DEE VOLK, individually and in her
capacity as Conservator for RBV, a minor child,

            Plaintiff and Appellant,

v.

VALERIE GOESER; ROY DONALD VOLK, DIANE
NILSON VOLK and SARAYA ROBERSON, as
Co-Personal Representatives of the Estate of Roy
Craig Volk, and Does 1 through 10,

            Defendants and Appellees,

v.

SARAYA ROBERSON,

            Defendant and Appellant.



APPEAL FROM:          District Court of the Eighth Judicial District,
                      In and For the County of Cascade, Cause No. DDV 13-340
                      Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

              For Appellant Pamela Dee Volk:

                      Jason T. Holden, Dana A. Henkel, Faure Holden Attorneys at Law, P.C.,
                      Great Falls, Montana

              For Appellee Valerie Goeser:

                      Roberta Anner-Hughes, Anner-Hughes Law Firm; Billings, Montana

              For Appellee and Cross-Appellant Saraya Roberson:

                      Gregory J. Hatley, James A. Donahue, Derek J. Oestreicher, Davis,
                      Hatley, Haffeman & Tighe, P.C.; Great Falls, Montana
                                 Submitted on Briefs: October 21, 2015

                                            Decided: March 8, 2016


Filed:

         __________________________________________
                           Clerk




                             2
Justice Michael E Wheat delivered the Opinion of the Court.

¶1    Pamela Dee Volk appeals from the Summary Judgment Order of the Montana

Eighth Judicial District Court granting summary judgment for Valerie Goeser. The

District Court determined that a constructive trust should not be imposed on

$2,306,103.13 of Roy Volk’s life insurance proceeds for the benefit of his minor son,

RBV, because Valerie Goeser was not unjustly enriched when she received Roy Volk’s

life insurance proceeds. We reverse the summary judgment and remand for further

proceedings in accordance with this opinion.

                                        ISSUE

¶2    Appellant raises one issue on appeal, which we address as follows:

¶3    Whether the District Court erred when it granted summary judgment to Valerie,
and denied the imposition of a constructive trust on life insurance proceeds in favor of
RBV, a minor child?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4    Roy Volk was married to Pamela Dee Volk in April 1996. The couple had a son,

RBV, in the fall of 2000. On June 25, 2010, Roy filed a Petition for Dissolution of

Marriage in the Montana Eighth Judicial District Court. On the same day, as part of the

dissolution proceeding, the District Court issued the statutorily-mandated Summons and

Temporary Restraining Order.    The divorce proceedings lasted over a year and a half,

ending with the court’s hearing and dissolution of the marriage on December 21, 2011.

¶5    Roy and Pamela entered into a Marital Settlement Agreement (“MSA”) on

December 20, 2011. Several agreements were included as part of the MSA including a

“Future Instruments” clause where Roy agreed “[h]usband shall execute a will naming

                                           3
his son as beneficiary of his estate, giving all of his assets to his son.” This clause

included Roy’s agreement to leave all of his assets to RBV through a will that would be

executed as a “future document.” Attached to the MSA as exhibit A, was a list of assets

and liabilities for each party where Roy indicated that “[h]usband’s New York Life

insurance policy” (Policy 936) was an asset. The MSA further provided that if either

husband or wife failed to disclose an asset, “that finding is presented to be grounds for

the Court, without taking into account the equitable division of the marital estate, to

award the undisclosed asset to the opposing party . . . .”

¶6     At the time of the divorce, Roy owned two term life insurance policies. The

policies are New York Life Policy No. 46689799 (“Policy 799”) with a benefit of

$1,500,000; and New York Life Policy No. 76098936 (“Policy 936”) with a benefit of

$1,000,000.    Policy 799 was not disclosed in the divorce; Pamela was the sole

beneficiary, but she was not aware the policy existed. Roy disclosed Policy 936 in the

divorce, and Pamela and Volk Sand and Gravel (Roy’s business) were equal beneficiaries

(50 percent to each) with a $200,000 collateral assignment to Stockman Bank. On

July 15, 2010, while the restraining order was in effect, Roy changed the beneficiary

designations on both policies and designated his sister, Valerie Goeser, as the new

beneficiary.

¶7     Roy also had a daughter, Saraya Roberson. In June of 2005, Roy and Saraya’s

mother, Serena C. Roberson, entered into a Child Support Agreement pertaining to

Saraya. That agreement contained a provision requiring Roy, within 30 days of the

court’s Order approving the agreement, to purchase a life insurance policy of $100,000

                                              4
naming Saraya as the owner and sole beneficiary. The Child Support Agreement was

approved and adopted by the Montana Eighth Judicial District Court on July 28, 2005.

Roy never purchased the life insurance policy required by this Agreement, nor did Roy

name Saraya as a beneficiary on any life insurance policy.

¶8    On April 30, 2012, just over four months after the divorce was final, Roy died

unexpectedly at age 45. Roy did not have a will in place. Because Roy had changed his

life insurance beneficiary designations in violation of the restraining order, Valerie

received the life insurance proceeds from both policies in the total amount of

$2,306,103.13. Valerie was shocked to learn upon Roy’s death that she was the recipient

of the two life insurance policies. Valerie invested the proceeds in a home and real

property in Newport Beach, California.

¶9    After Roy’s death, Pamela discovered that Valerie received the life insurance

proceeds from Policy 936, due to Roy’s change of beneficiary during the divorce.

Pamela wrote Valerie to inquire about the policy and notify her of RBV’s equitable

claim. Valerie did not respond to the inquiry and Pamela subsequently sent a subpoena

duces tecum to New York Life to determine how the policy benefit was dispersed. At

that time she discovered the existence of the second life insurance policy, Policy 799,

with the $1,500,000 benefit. Pamela also determined through discovery that she was the

beneficiary on Policy 799 until Roy changed it to Valerie on July 15, 2010, while the

restraining order was in effect. The New York Life records confirmed that both policies

were paid to Valerie.



                                            5
¶10    A probate was opened to settle Roy’s estate. Pamela filed two creditor’s claims in

the probate on October 23, 2012. The first claim was on her behalf for payment Roy had

agreed upon, and the second was on behalf of RBV for child support and health insurance

costs totaling about $77,500. Roy’s estate did not have sufficient funds to pay RBV’s

child support claim. On April 29, 2013, Pamela, on behalf of RBV, filed this action

against Valerie and Roy Craig Volk’s estate seeking a constructive trust over the

insurance policy payouts for the benefit of RBV. The complaint named Saraya, as

co-personal representative of Roy’s estate, as a defendant.       Pamela also filed two

additional actions in April 2013 that are not part of this appeal: an action to reopen the

dissolution for award of the policy proceeds due to violation of the restraining order, and

another similar action to seek policy proceeds through the probate. While Valerie was

notified of Pamela’s equitable claim on RBV’s behalf, she was not served in the

dissolution or probate actions.

¶11    Judge Neill of the Montana Eighth Judicial District presided over all three of the

actions tied to this case: Roy and Pamela’s dissolution, the probate of Roy’s estate, and

here, Pamela’s claims requesting a constructive trust for RBV. The three actions have

significant overlap regarding parties, claims, and the equities of the case. This appeal

arises out of the District Court’s grant of summary judgment in Valerie’s favor regarding

Pamela’s constructive trust claims for RBV.

¶12    Saraya filed a cross-appeal seeking imposition of a constructive trust for her

benefit to fulfill the $100,000 liability. Subsequently, and by admission of both parties,

Saraya and Pamela entered an agreement (“October Agreement”) under which Pamela

                                              6
would pay Saraya’s claim from RBV’s constructive trust if RBV prevails on his claims

against Valerie.

                                District Court Opinion

¶13    By May 2014, both parties moved for summary judgment. On May 16, 2014,

Saraya sought leave from the District Court to file an Amended Answer and to assert

cross-claims against Valerie. Several additional motions were made in the case, which

were held in abeyance while the District Court considered the pending summary

judgment motions. The District Court held hearings on both summary judgment motions.

The court entered summary judgment in favor of Valerie on October 30, 2014. At that

time the court also denied Saraya’s motion for leave to amend. Pamela and RBV timely

appealed on November 19, 2014. Saraya timely appealed on December 8, 2014.

¶14    The District Court granted summary judgment to Valerie on all claims. The court

concluded that even though Roy had changed the beneficiary designation on both policies

while the court’s restraining order was still in effect, the case was different from

this Court’s decision in Briese v. Mont. Pub. Employees Ret. Bd., 2012 MT 192,

366 Mont. 148, 285 P.3d 550, because Roy died after the divorce was final and the

restraining order was lifted. The District Court reasoned the purpose of the restraining

order is to maintain the status quo in regard to the parties’ property so long as the

dissolution action is pending—a purpose that terminates once the dissolution action is

complete. The court further reasoned that once the restraining order was lifted, Roy

would have been free to change the beneficiary at any time. The court found had he not

changed the beneficiaries, Pamela still would have been removed as a beneficiary by

                                           7
operation of law under § 72-2-814, MCA. Under this analysis, the court concluded that

equity did not require voiding Roy’s changes to the beneficiaries because Roy made no

further changes after the dissolution.

¶15    The court rejected Pamela’s argument that because Roy disclosed Policy 936 as an

asset in the MSA he considered his insurance policies to be assets and therefore intended

RBV to be the beneficiary. The court found, however, that neither the MSA nor the

stipulated final parenting plan made any mention of life insurance policies and the MSA

only required that Roy create a will and name RBV as the beneficiary of his estate (which

Roy failed to do during the four months following the MSA). The court concluded that

an insurance policy is a non-probate transfer and would pass outside of any will Roy had

executed; thus, Roy’s will would not have affected the insurance policies. Considering

the intent of the parties and the language of the MSA, the court then concluded that the

term “assets” clearly refers to Roy’s testamentary estate, not specifically including the

life insurance policies.

¶16    The District Court also rejected Pamela’s argument that she should be awarded the

proceeds of the second, undisclosed policy. The court agreed with Pamela that Roy

should have disclosed the policy as an asset in the marital estate. Still, the court did not

award the proceeds to Pamela on the basis that the term life policy does not receive any

value until the holder’s death. The court reasoned that marital property is valued at the

time of the divorce proceedings, and thus the court could not take into account the

policy’s $1.5 million proceeds because they materialized only after Roy died, months

after the divorce was finalized. Therefore, Roy’s nondisclosure of the second policy,

                                             8
even if a violation of the MSA, had no monetary effect on the value of the marital estate.

The court concluded that the parties did not discuss insurance specifically in the MSA so

it would be speculative for the court to say what effect the disclosure of the policy might

have had on the parties’ negotiations.

¶17    Finally, the District Court rejected Pamela’s contention that Valerie had been

unjustly enriched and that a constructive trust must be imposed. Accordingly, the District

Court declined to award summary judgment and equitable relief to Pamela.

                               STANDARD OF REVIEW

¶18    We review the grant of summary judgment de novo, using the same

M. R. Civ. P. 56 criteria used by the district court.        Albert v. City of Billings,

2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704. Summary judgment is appropriate

when the moving party demonstrates both the absence of any genuine issues of material

fact and entitlement to judgment as a matter of law. Albert, ¶ 15. Once the moving party

has met its burden, the non-moving party must present substantial evidence essential to

one or more elements of the case to raise a genuine issue of material fact. Styren Farms,

Inc. v. Roos, 2011 MT 299, ¶ 10, 363 Mont. 41, 265 P.3d 1230. We further review a

question of law to determine if the district court’s legal conclusions are correct. Palmer

v. Bahm, 2006 MT 29, ¶ 11, 331 Mont. 105, 128 P.3d 1031.

¶19    The standard of review governing proceedings in equity is codified at

§ 3-2-204(5), MCA, which directs the appellate court to review and determine questions

of fact as well as questions of law. Gitto v. Gitto, 239 Mont. 47, 50, 778 P.2d 906, 908

(1989). We review a district court’s findings of fact to ascertain whether they are clearly

                                            9
erroneous. Daines v. Knight, 269 Mont. 320, 324, 888 P.2d 904, 906 (1995). A finding is

clearly erroneous if it is not supported by substantial evidence, if the trial court

misapprehended the effect of the evidence, or if our review of the record convinces us

that the district court made a mistake.      Kovarik v. Kovarik, 1998 MT 33, ¶ 20,

287 Mont. 350, 954 P.2d 1147.

                                     DISCUSSION

¶20    Section 40-4-101, MCA, provides that Montana’s law concerning separation and

dissolution of marriage:

       shall be liberally construed and applied to promote its underlying purposes,
       which are to:
       (1) strengthen and preserve the integrity of marriage and safeguard family
       relationships;
       (2) promote the amicable settlement of disputes that have arisen between
       parties to a marriage;
       (3) mitigate the potential harm to the spouses and their children caused by
       the process of legal dissolution of marriage; and
       (4) make reasonable provision for spouse and minor children during and
       after litigation . . . .

Section 40-4-101, MCA (emphases added.)

¶21    In an effort to support these goals and promote a proper and amicable settlement,

the District Court entered the statutorily-mandated restraining order in the dissolution

proceeding, stating:

       Petitioner and Respondent are both hereby restrained as follows under the
       authority of § 40-4-121(3), MCA, 2009:

       3. Petitioner and Respondent are hereby restrained from cashing, borrowing
       against, canceling, transferring, disposing of, or changing the beneficiaries
       of any insurance or other coverage, including life, health, automobile, and
       disability coverage held for the benefit of a party or a child of a party for
       whom support may be ordered.

                                            10
¶22    This Court previously addressed the issue of changing beneficiaries under a

restraining order in our decision in Briese. The dispute in Briese surrounded a retirement

benefit beneficiary change made by a Yellowstone County deputy sheriff after a

§ 40-4-121(3), MCA, restraining order had been issued in conjunction with his petition

for dissolution of marriage. While the marital dissolution proceedings were still pending

with the restraining order in place, and without consent of his wife or the court, Briese

changed his retirement beneficiary designation from his wife Erene, to his two minor

children. The change of beneficiary was discovered after Briese died in the line of duty,

while the dissolution proceedings were pending. We determined the change of

beneficiary was invalid because it was made in violation of the statutorily-mandated

restraining order.

¶23    We reasoned that “[t]he purpose of the law requiring a temporary restraining order

is clearly to maintain the status quo with respect to all property of the parties.”

Briese, ¶ 25. We stated that this policy is in place to “[mitigate] the potential harm to

spouses and children caused by the dissolution process itself and ensure that reasonable

provision is made for the spouse and children during the litigation.” Briese, ¶ 25.

Further, we determined that “[t]he plain language of subsection (b) is quite broad,

restraining both parties from unilaterally ‘changing the beneficiaries of any . . . coverage .

. . held for the benefit of a party.’” Briese ¶ 25 (quoting § 40-4-121(3)(b), MCA)

(emphasis added). In plain terms, the restraining order serves as a protective umbrella

over all marital assets while the parties negotiate an MSA or proceed with litigation. If

agreement is reached on division of property, the parties’ agreements are incorporated in

                                             11
the MSA, the new contract between the parties. Then, with the MSA in place, the

restraining order can be dissolved upon entry of the decree, and the MSA guides any

further asset divisions and responsibilities of the parties.

¶24    As we determined in Briese, the remedy for restraining order violations in most

cases is a “civil or criminal contempt action against the violator.” Briese, ¶ 38. This

remedy was not available in Briese because, similar to this case, the violator was

deceased. In Briese, we reviewed the approaches used by other jurisdictions to solve this

problem. Of note was our recognition of the Michigan Supreme Court position:

       It needs no citation that for violation of an injunction, a court, under its
       general powers, may order a return to the status quo . . . . Transfers of
       property in violation of an injunction are invalid and may be set aside . . .
       and subsequent death of the injunction violator does not prevent the court
       from exercising such power.

Briese, ¶ 39 (citing Webb v. Webb, 375 Mich. 624, 134 N.W.2d 673, 674-75 (Mich.
1965)).

¶25    In Briese, we determined that violation of a dissolution proceeding restraining

order does not automatically void the beneficiary change. Briese, ¶ 40. Nonetheless, we

found that the courts, at a minimum, possess “equitable power to order a return to the

status quo when a party violating a temporary restraining order has died.” Briese, ¶ 41.

We look to our precedent in Briese and to the statutes as we turn to the facts in this case.

Roy’s Improper Change of Beneficiary on Policy 936

¶26    On appeal, Pamela argues that the District Court erred in this case and abused its

discretion when it determined that the violation of the restraining order had no actual

effect on the beneficiary change and that the equities were not in favor of a constructive


                                              12
trust for RBV. She further argues that equity requires the proceeds received by Valerie

must be placed in a constructive trust for RBV. Pamela also asserts that Roy’s June 25,

2010, violation of the restraining order cannot be excused by the District Court. She

further contends that even though Roy changed the beneficiary designation to his sister

Valerie, he did not intend his violation to control the ultimate disposition of his life

insurance. Instead, she argues that the evidence demonstrates that Pamela and Roy

always thought of Roy’s life insurance as an asset and Roy intended to leave it, with all

of his assets, to RBV. Pamela implies that Roy simply did not have his affairs in the

order he would choose when he unexpectedly died and that if he had the opportunity, he

would have set the affairs according to their MSA.

¶27   Valerie defends the District Court’s equitable determination. She argues that

because life insurance proceeds pass outside the testamentary estate, the life insurance

contract was properly executed. She also contends that the MSA and Final Parenting

Plan fail to mention any agreement or intention to name a particular beneficiary. She

notes that Roy, during the four months before his death after the divorce, could have

changed the beneficiary to any person of his choosing. Instead, he retained Valerie as the

beneficiary on Policy 936, which should be considered his final intention.

¶28   Roy purchased Policy 936 on May 16, 2002, with a $665 down payment. The

policy originally listed Volk Sand & Gravel as the beneficiary. On August 9, 2002, Roy

changed the original beneficiary with fifty-percent to Pamela and with the other

fifty-percent to Volk Sand & Gravel. Roy also included a “second beneficiary” of

“Estate of Roy C. Volk.” On August 22, 2002, Roy made a collateral assignment on the

                                            13
policy with Stockman Bank, “up to $500,000” which apparently, based upon the record,

was valued at approximately $200,000 at the time of his death. During the dissolution,

with the statutorily-mandated restraining order in place, Roy changed the beneficiary on

this policy to his sister Valerie, as sole beneficiary.

¶29     Roy’s beneficiary change resulted, upon his death, in the payment of this life

insurance policy, less the Stockman Bank assignment, to his sister Valerie. If Roy had

not changed the policy, his wife Pamela would have remained on the policy throughout

the pendency of the divorce. As the District Court pointed out, upon finalizing the

dissolution, Pamela would have been removed from the policy by operation of law

pursuant to Montana’s Uniform Probate Code, § 72-2-814(2)(a)(i), MCA, which states:

        (2) Except as to a retirement system established in Title 19 or as provided
       by the express terms of a governing instrument, a court order, or a contract
       relating to the division of the marital estate made between the divorced
       individuals before or after the marriage, divorce, or annulment, the divorce
       or annulment of a marriage:
               (a) revokes any revocable:
               (i) disposition or appointment of property made by a divorced
       individual to the individual’s former spouse in a governing instrument and
       any disposition or appointment created by law or in a governing instrument
       to a relative of the divorced individual’s former spouse;

Under the statute “revocable” is defined as:

       “Revocable,” with respect to a disposition, appointment, provision, or
       nomination, means one under which the divorced individual, at the time of
       the divorce or annulment, was alone empowered, by law or under the
       governing instrument, to cancel the designation in favor of the individual’s
       former spouse or former spouse’s relative, whether or not the divorced
       individual was then empowered to designate the divorced individual in
       place of the individual’s former spouse or in place of the former spouse’s
       relative and whether or not the divorced individual then had the capacity to
       exercise the power.


                                               14
Section 72-2-814(1)(f), MCA.

The Official Comments to the statute provide further specificity regarding the types of

revocable instruments:

       The revisions expand the section to cover “will substitutes” such as
       revocable inter-vivos trusts, life-insurance, and retirement-plan beneficiary
       designations, transfer-on-death accounts, and other revocable dispositions
       to the former spouse that the divorced individual established before the
       divorce (or annulment).

Tit. 72, Ch. 2, Mont. Code Ann., Annotations, Official Comments at 635 (2012) (see also

Thrivent Fin. v. Andronescu, 2013 MT 13, 368 Mont. 256, 300 P.3d 117).

¶30    We determined in Thrivent that this revocation-upon-divorce statute operates at

the time the “governing instrument is given effect” and the provision is to be treated as if

the “divorced individual’s former spouse (and relatives of the former spouse) disclaimed

the revoked provisions[.]” Thrivent, ¶ 8. Or, more simply, when the divorce is final

between the parties, any designation (such as a life insurance beneficiary) by the divorced

individuals of their former spouse is automatically revoked upon divorce.

¶31    Turning to Roy’s Policy 936, the effect of not removing Pamela as the beneficiary,

or retaining the status quo, would have caused her share of the policy proceeds to pass to

Roy’s estate under § 72-2-814, MCA. Because Roy had no will, after the proceeds

passed to the estate they subsequently would have passed to Roy’s children in the probate

by way of the intestacy statutes. Section 72-2-113, MCA. We note that in the MSA, the

parties list Policy 936 as an asset. The MSA also indicates Roy’s intent to name RBV as

the beneficiary of his estate specifically indicating Roy will leave RBV all of his assets.



                                            15
The status quo prior to Roy’s improper change—had the restraining order not been

violated—would have accomplished that end.

¶32    Here, Valerie argues the status quo was unaffected because the restraining order

had already been lifted by the time Roy died, so there is no harm. The argument

however, overlooks the statute’s purpose to protect the status quo at the time the

statutorily-mandated restraining order is entered. It is misdirected, in addition to being

speculative, to say that Roy could or would have changed the beneficiary after the

dissolution anyway, because the policy of the law is to preserve the status quo, protect the

spouse and the children, and to promote an amicable settlement.           In addition, the

evidence indicated that Roy—not anticipating that he would die within months—did not

have his affairs in order. Roy’s disheveled affairs include failures to execute documents

required in his parenting actions with both Pamela and his former partner, Serena.

Ultimately, it is speculative of Valerie to argue that Roy would have changed the

beneficiary to Valerie after the divorce—when it would have been legal to do so—

particularly where both of his parenting agreements required him to ensure support for

his children and he failed to do so.

Roy’s Failure to Disclose Policy 799 and Improper Change of Beneficiary

¶33    Roy purchased Policy 799 on February 14, 2000, with a $924 down payment.

Pamela Volk was the sole beneficiary from the inception of this policy until the couple’s

dissolution proceeding. During the dissolution, with the statutorily-mandated restraining

order in place, Roy changed the beneficiary on this policy to his sister Valerie, as sole



                                            16
beneficiary. Pamela was never aware of the policy and he did not disclose the policy

during the dissolution proceeding.

¶34    In its determination regarding Policy 799, the District Court found that Roy failed

to disclose the existence of the policy in the MSA, but determined this failure had no

effect on the value of the marital estate because, as a term policy, it had no value until

Roy died. The parties make numerous arguments regarding Roy’s failure to disclose the

policy. Pamela argues the District Court improperly relied on “value” in its equitable

determination because she and Roy considered Roy’s life insurance an asset. She argues

that Roy violated Paragraph 20 of their MSA by not disclosing the policy, which is

grounds for the court to award it to her, and that it should be placed in trust for RBV.

Pamela claims that the failure to disclose the policy unfairly affected negotiations in the

dissolution. Valerie argues that any failure to disclose property under § 40-4-253, MCA,

provides only a presumption that the property can be awarded to the other party. She

contends that the District Court properly exercised discretion in declining to re-open and

change the settlement. Valerie also argues that the policy was never part of the estate,

because the insurance passes outside the estate, and that resolution of the policy is solely

a contract issue.

¶35    The District Court concluded that Roy “likely should have disclosed Policy 799 as

an asset in the marital estate.”     The court noted that the restraining order statute,

§ 40-4-121, MCA, prohibiting beneficiary changes, bolsters this argument. The District

Court found that the failure to disclose analysis is properly raised in a dissolution

proceeding; nonetheless, the District Court possesses further authority under the

                                            17
contractual terms of the MSA to determine whether failure to disclose is grounds for

award of the property or benefit to the other party. In the Order, the District Court

determined that the policy had zero value at the time of the dissolution and, because there

was no value in the policy, the court could not determine what impact disclosure might

have had on the MSA. The court concluded, under this analysis, that any remedy would

only be based on speculation of how proper disclosure may have changed the MSA.

¶36    However, we determine that whether the failure to disclose the policy is material

to the settlement agreement is not the dispositive issue regarding Policy 799.          The

dispositive issue on Policy 799 is the improper change of beneficiary while the

§ 40-4-121(3), MCA, dissolution restraining order was in place. The point is not whether

disclosure of the policy would have affected the parties’ negotiations in the MSA; rather,

the point is that had Roy not changed the beneficiary in violation of the restraining order,

the status quo on the policy would have allowed the benefit to be passed to the existing

beneficiary, Pamela, or—by operation of law—into Roy’s estate under the same analysis

as we have made in Policy 936.

¶37    When Roy purchased these policies, and any time thereafter until he filed the

dissolution, he was free to designate the beneficiary as he chose. When Roy filed the

dissolution and the statutorily-mandated restraining order applied, Roy was no longer free

to make those changes without the consent of the court and Pamela.                   Under

§ 40-4-121(3)(b), MCA, Roy was prohibited from changing his life insurance beneficiary

during the marriage dissolution proceedings. When we made similar findings in Briese,

we invalidated Briese’s change of designation from his wife to his children, even though

                                            18
it did not affect the value or how the benefits were distributed, because § 40-4-121(3)(b),

MCA, “does not include any exceptions for changes to beneficiaries from spouse to

protected child or vice versa.” Briese, ¶ 31. The statute operates the same in this case and

there are clearly no exceptions in the statute allowing for a change of beneficiary from

wife to sister or vice versa, or otherwise.

¶38    In Briese, we determined that the courts possess “equitable power to order a return

to the status quo when a party violating a temporary restraining order has died.”

Briese, ¶ 41. There is no dispute that Roy’s changes of beneficiary were made while the

statutorily-mandated restraining order was in place.       Because Roy made improper

changes to Policy 936 and Policy 799, those changes, in violation of the statute, are

invalid and must be set aside. We conclude, as we did in Briese, that the District Court

improperly interpreted the law regarding Roy’s improper change of beneficiary. The

statute supports a conclusion that transfers of property in violation of an injunction, like

that in Briese and in this case, are invalid and should be set aside.         Death of the

restraining order violator does not prevent this Court from exercising that power.

Accordingly, we conclude that Roy’s improper changes to his beneficiary designations

must be set aside and the designations returned to the status quo, as they were prior to the

dissolution, in order to promote both the fairness and equity the statute is intended to

provide and the agreements that Roy made to support his children.

Unjust Enrichment and Constructive Trust

¶39    Returning the parties to the status quo in this case would require return of the life

insurance proceeds to the estate, a task that is complicated because the funds have been

                                              19
dispersed and invested in real property. Because Valerie received the proceeds under the

express terms of the policies, the question arises whether she was unjustly enriched. If

so, fashioning a remedy or return to the status quo by setting the judgment aside requires

further action by the District Court.

¶40    Pamela brings her claim in this case, on behalf of RBV, under the theory of an

alleged constructive trust.   She argues that Valerie was unjustly enriched when she

received the benefit of Roy’s insurance policies, a result of the improper beneficiary

changes. Pamela argues that the District Court erred in this case and abused its discretion

when it determined that the restraining order violation had no actual effect on the

beneficiary change and that the equities were not in favor of a constructive trust for RBV.

Pamela argues that Roy’s June 25, 2010 violation of the restraining order cannot be

affirmed and excused by the District Court.

¶41    Valerie argues that the elements of unjust enrichment were not met and a

constructive trust is improper in this case. Valerie contends that the violation of the

restraining order is not relevant because after the dissolution, Roy could have changed the

beneficiary to any person of his choice. Valerie also argues that the written agreements

in the underlying divorce action, and life insurance contracts, control all of the issues in

this case and that therefore, there is no equitable remedy because the issues are settled by

contracts, where equity cannot apply.

¶42    In its Order, the District Court analyzed the three elements of unjust enrichment

and sought to balance the equities. The District Court correctly concluded that the first

two elements of unjust enrichment are met according to the facts of the case. First, a

                                              20
benefit was conferred on Valerie by her brother Roy when she received the life insurance

proceeds as a result of the improper designation. Second, the facts demonstrate that

Valerie, as the conferee, appreciated and possessed knowledge of the conferred benefit as

she acknowledged receipt of both policies, and she acknowledged she used the money

from her brother to set up a trust, TVG trust, to hold the funds and invest in real estate,

specifically, the house where she resides. The central dispute in this case surrounds the

third element, where the district court was required to weigh the facts and evidence to

determine whether the retention of the benefit Valerie incurred created an inequitable and

unjust result.

¶43    In addressing this third element, the District Court weighed three separate

arguments, and concluded: 1) Equity does not require voiding the beneficiary changes

made by Roy in violation of the restraining order; 2) Roy’s failure to execute a will and

properly execute his part of the MSA does not support a finding that Valerie was unjustly

enriched; and 3) the “October Agreement” between Pamela and Saraya had no bearing on

Valerie’s receipt of the insurance proceeds and does not bind Valerie to an unjust

enrichment finding nor a constructive trust. After weighing the equities of these issues,

the District Court refused to impose a constructive trust on the insurance proceeds.

¶44    This Court previously considered the law of unjust enrichment in the context of a

constructive trust in N. Cheyenne Tribe v. Roman Catholic Church, 2013 MT 24,

368 Mont. 330, 296 P.3d 450. There, we concluded a constructive trust, “serves as a

possible remedy to rectify the unjust enrichment of a party.” N. Cheyenne Tribe, ¶ 39.



                                            21
¶45    A constructive trust serves as a proper remedy to unjust enrichment.             “A

constructive trust arises when a person holding title to property is subject to an equitable

duty to convey it to another on the ground that the person holding title would be unjustly

enriched if he were permitted to retain it.”        Section 72-38-123, MCA; (see also

N. Cheyenne Tribe, ¶ 30, (citing In re Estate of McDermott, 2002 MT 164, ¶ 25,

310 Mont. 435, 51 P.3d 486)) (see generally 1 Dan B. Dobbs, Dobbs Law of Remedies:

Damages-Equity-Restitution § 4.3(1), 587, § 4.3(2) (Pract. Treatise Series, 2d ed.,

West 1993)) [hereinafter Law of Remedies]. This Court has broad discretion afforded by

the principles of equity to impose a constructive trust despite lack of any wrongdoing by

the person holding the property. N. Cheyenne Tribe, ¶ 29, (citing McDermott, ¶¶ 25-26).

The Court may simply declare a constructive trust to exist, “[n]othing else is required.”

N. Cheyenne Tribe, ¶ 32 (citing Eckart v. Hubbard, 184 Mont. 320, 325, 602 P.2d 988,

991 (1979)). A claim for unjust enrichment, in the context of a constructive trust,

requires proof of three elements:

          (1) a benefit conferred upon a defendant by another; (2) an appreciation
          or knowledge of the benefit by the defendant; and (3) the acceptance or
          retention of the benefit by the defendant under such circumstances that
          would make it inequitable for the defendant to retain the benefit without
          payment of its value.

N. Cheyenne Tribe, ¶ 39.

Unjust Enrichment

¶46    Here, Roy’s actions set in motion the series of events changing the status quo in

regard to his life insurance and the ultimate receipt of the benefit by his sister Valerie.

Because this benefit went to Valerie, we apply the unjust enrichment factors to determine

                                            22
whether she was unjustly enriched. It is clear from the facts of the case that the first two

elements of the test have been met: 1) a benefit has clearly been conferred upon Valerie

through Roy’s improper insurance beneficiary change; and 2) Valerie has knowledge of

the benefit, acknowledging receipt of the funds and investing them in a home and real

property.

¶47    The third element of unjust enrichment and the circumstances created by Roy’s

actions during and after the dissolution proceeding require further analysis. Thus, we

consider whether Valerie’s acceptance and retention of the benefit from Roy, under these

circumstances, makes it inequitable for Valerie to retain the benefit without payment of

its value. The “circumstances” in this case are a result of Roy’s improper change of the

beneficiary while the statutorily-mandated restraining order was in place. The final result

of the circumstances is that Roy’s estate is unable to pay claims to his children or provide

for their future as was intended and promised under the MSA and the parenting

agreement providing for Saraya.       If Roy had not made this improper change, the

circumstances would be much different.        Pamela would have been removed as the

beneficiary upon the dissolution of their marriage, and the life insurance proceeds, under

§ 72-2-814, MCA, would have diverted into the estate upon Roy’s death, where it would

have been distributed to Roy’s children under the intestacy statutes.

¶48    While we did not consider unjust enrichment in the Briese case, we did conclude

that the remedy for the improper beneficiary designation was to set aside the change. In

Briese, even when the effect of changing the benefit did not alter the final beneficiary

upon whom the benefit was bestowed, we set the change aside because violation of the

                                            23
statute invalidated Briese’s change. Here, similarly, the violation requires the Court to

set aside the improper change and restore the status quo. Because the improper change

must be set aside, we view the subsequent circumstances created by the change—

Valerie’s receipt of the insurance proceeds—to be similarly improper because the

benefits went to Valerie as a result of Roy’s mistakes. Accordingly, we conclude that the

third element of unjust enrichment has been met because Valerie is holding the life

insurance proceeds, which she received as a result of Roy’s improper change, “under

such circumstances that in equity and good conscience [s]he ought not to retain it.”

N. Cheyenne Tribe, ¶ 33.

Constructive Trust

¶49   Because we conclude that Pamela, on RBV’s behalf, has established a claim

showing that Valerie was unjustly enriched, we now consider the ramifications of the

imposition of a constructive trust as a remedy for the unjust enrichment. “A party’s proof

of unjust enrichment entitles it to restitution from the other party—regardless of any

wrongdoing on the part of the unjustly enriched party.” N. Cheyenne Tribe, ¶ 37 (citing

Lawrence v. Clepper, 263 Mont. 45, 53, 865 P.2d 1150, 1156 (1993)). As we stated in

N. Cheyenne Tribe, “[u]njust enrichment serves as a unifying principle for a wide variety

of equitable claims and . . . a court may order restitution to vindicate these types of

equitable claims.” N. Cheyenne Tribe, ¶ 38, (citing Dobbs, Law of Remedies § 4.1(3),

564). The Court measures restitution for unjust enrichment “by the defendant’s gain.”

N. Cheyenne Tribe, ¶ 38, (citing Dobbs, Law of Remedies § 4.1(1), 555). In the context

of a constructive trust the plaintiff does not need to show deprivation of something to

                                           24
recover, “it is sufficient that the defendant gained something that it should not be allowed

to retain.” N. Cheyenne Tribe, ¶ 38 (citing McDermott, ¶¶ 25-26).

¶50    “A constructive trust arises when a person holding title to property is subject to an

equitable duty to convey it to another on the ground that the person holding title would be

unjustly enriched if he were permitted to retain it.” N. Cheyenne Tribe, ¶ 30 (citing

McDermott, ¶ 25 (quoting § 72-33-219, MCA)). In this instance, the elements of unjust

enrichment have been met and we conclude that Valerie has been unjustly enriched. In

turn, in order to work an equitable result, we find that though Valerie has done nothing

wrong, she is holding title to property and subject to an equitable duty to convey it, or a

portion thereof, to another on the ground that she would be unjustly enriched if she were

permitted to retain it.   N. Cheyenne Tribe, ¶ 30.       Accordingly, we determine that

imposing a constructive trust on the proceeds of Roy’s two life insurance policies, Policy

799 and Policy 936, in favor of RBV is the proper remedy in this case.

¶51    As we noted, a significant issue emerges from this determination because Valerie

has accepted the life insurance proceeds and spent or invested them on real property.

This is not a case where the asset or money is being held in trust while a determination is

made. We recently reviewed a similar circumstance in LeMond v. Yellowstone Dev.,

LLC, 2014 MT 181A, 375 Mont. 402, 336 P.3d 345, a case in which we imposed a

constructive trust in LeMond’s favor because he lost title to lands promised to him in

business dealings with Yellowstone Development.

¶52    In LeMond, LeMond entered an agreement to trade his work promoting sales for

Yellowstone Development for a particular land parcel owned by Yellowstone

                                            25
Development. Prior to completing the agreement, Yellowstone Development traded the

promised parcel to a third party and it was unavailable to LeMond when he completed his

part of the contract. LeMond asked for the traded parcels to replace the conveyed parcels

as part of a constructive trust, and the District Court agreed. We concluded that, because

the traded parcels had more acreage and likely a higher value, the District Court had to

determine the extent of the remedy. LeMond was granted a constructive trust under an

implied contract legal theory, unlike the unjust enrichment theory in this case.

Nonetheless, the resulting constructive trusts are similar because LeMond, like RBV, did

not have direct access to the property subject to the constructive trust; in other words, the

property was not set aside awaiting the Court’s determination. In LeMond, we remanded

to the District Court for a determination of value regarding other lands owned by

Yellowstone Development to replace the lost parcels. There, as here, the District Court

needed to determine the proper amount of the constructive trust to make a determination

“if, in equity and conscience, it belongs to [the plaintiff].” LeMond, ¶ 51 (citation

omitted). We explained that the “equity of the transaction must shape the measure of

relief.” LeMond, ¶ 52 (citation omitted).

¶53    A court sitting in equity is empowered to determine all questions involved in the

case, and to fashion an equitable result that will accomplish complete justice. Blaine

Bank of Montana v. Haugen, 260 Mont. 29, 35, 858 P.2d 14, 18 (1993);

Kauffman-Harmon v. Kauffman, 2001 MT 238, ¶ 11, 307 Mont. 45, 36 P.3d 408. As in

LeMond, the measure of relief must be shaped by the circumstances of the affected

parties and the equity of the transaction. We conclude it is necessary to remand this

                                             26
matter to the District Court so that, acting in equity, it may fashion a result that will

accomplish justice in light of the present circumstances of all affected parties. Among

other matters, because we are directing that Roy’s changes of beneficiary designations be

set aside and the designations returned to the previous status quo, the court must take

account of any claim that may be asserted by Volk Sand & Gravel as co-beneficiary

under Policy 936. The court may in addition consider any other factors it deems pertinent

to its obligation to work an equitable result, and will be free to direct the nature and

course of further proceedings on remand.

Saraya Roberson and the “October Agreement”

¶54    Because we have determined that a constructive trust must be imposed on Roy’s

insurance proceeds we conclude that we do not need to reach the arguments made on

cross-appeal by Saraya Roberson. Pamela agreed on RBV’s behalf in her Amended

Complaint of June 11, 2013, to pay Saraya’s creditor’s claim against Roy’s estate if a

constructive trust was created in favor of RBV. Thus, we determine that this issue is

moot as it is properly resolved under the parties’ agreement.

                                     CONCLUSION

¶55    We conclude that Valerie Goeser has been unjustly enriched because she has

received a benefit that rightfully belongs to another. We make this determination in

equity and conclude that Roy Volk’s errors in changing the beneficiary of his life

insurance under the statutorily-mandated restraining order invalidates his designations on

Policy 799 and Policy 936. We hold that a constructive trust was created on RBV’s

behalf as a result of these errors, and that Valerie Goeser must return the insurance

                                            27
proceeds or that portion of the proceeds by which she “would be unjustly enriched if

[she] were permitted to retain [them].” Section 72-38-123, MCA.

¶56    Reversed and remanded for further proceedings consistent with this Opinion.



                                                        /S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER


Justice Jim Rice, concurring.

¶57    I concur with the Court’s decision to reverse and remand for further proceedings.

I would add the observation that the Court has not ordered that all of the contested life

insurance proceeds must necessarily be placed in trust for RBV. Rather, on remand, the

District Court will need to design equitable relief based upon all of the circumstances of

the affected parties. These factors could include the funds currently held for RBV’s

benefit; the reasonable future needs of RBV; the fact that, by agreement, Saraya’s

creditor’s claim would be paid from the proceeds of the constructive trust; Valerie’s

financial situation, including any indebtedness she incurred or other disadvantage she

assumed by virtue of receiving the insurance proceeds, and the costs of the disgorgement

process; any claim asserted by Volk Sand & Gravel as co-beneficiary under Policy 936 as

a result of our decision setting aside Roy’s final changes of beneficiary designations; and




                                            28
any other factor that the District Court would deem appropriate to consider in working an

equitable result in this matter.

                                                 /S/ JIM RICE



Justice Beth Baker joins in the concurring Opinion of Justice Rice.


                                                 /S/ BETH BAKER


Justice James Jeremiah Shea, concurring.

¶58    I concur with the Court’s analysis in this case and its ultimate conclusion that

Valerie was unjustly enriched and a constructive trust should be imposed. I submit,

however, that although the District Court should properly be afforded the discretion to

fashion an equitable resolution of this issue on remand, we can provide more precise

guidance as to what the equitable objective should be.

¶59    There is no dispute that Roy violated the District Court’s restraining order when

he changed the beneficiary of both life insurance policies to name Valerie as the sole

beneficiary. There is likewise no dispute that Valerie was not otherwise entitled to any of

the life insurance proceeds and, but for Roy’s violation of the restraining order, she

would not have received any of the proceeds. We also know the precise amount, down to

the penny, of the money that Valerie received and to which she was not entitled:

$2,306,103.13. So when we conclude “that Valerie Goeser must return the insurance

proceeds or that portion of the proceeds by which she ‘would be unjustly enriched if she



                                            29
were permitted to retain [them],’” Opinion, ¶ 55, I have to ask: What do we mean by

“portion”?

¶60    Having determined that Valerie was not entitled to the life insurance proceeds, I

would conclude that the portion of the proceeds by which Valerie would be unjustly

enriched if she were entitled to retain it is anything above $0. That being noted, I

recognize the Court’s concern that there is a significant issue in the imposition of the

constructive trust because Valerie has spent or invested the life insurance proceeds on

real property in California. Opinion, ¶ 51. It seems to me, however, that the primary

significance of this issue is that it will likely require Valerie to sell the property if she is

otherwise unable to pay the $2,306,103.13 that should have gone to Roy’s estate. While

requiring Valerie to sell her home is indeed significant, it is certainly no more significant

of an issue than ensuring that Roy’s estate is able to pay claims to Roy’s children and

provide for their future as was intended and promised under the MSA and the parenting

agreement providing for Saraya.

¶61    I agree that achieving an equitable result in this case will require the resolution of

certain issues that are best left to the District Court on remand. For example, fluctuating

real estate market values may affect Valerie’s ability to recoup and disgorge the full

amount of the proceeds.       A court sitting in equity is empowered to determine all

questions involved in the case, and to fashion an equitable result that will accomplish

complete justice.    Kauffman-Harmon, ¶ 11.         While the nuances of fashioning that

equitable result are properly within the purview of the District Court on remand, I believe

the facts of this case enable us to hold on appeal that the objective should be the

                                              30
recoupment, to the fullest extent possible, of the entire life insurance proceeds. I would

so instruct the District Court.

                                                 /S/ JAMES JEREMIAH SHEA


Chief Justice Mike McGrath joins the concurrence.


                                                 /S/ MIKE McGRATH


Justice Laurie McKinnon, dissenting.

¶62    I disagree with the Court’s decision on multiple grounds.

¶63    Preliminarily, the Court has not accorded proper deference to a trial court’s

decision in matters of equity where there is no dispute of fact and the trial court has

correctly applied the law. Although the District Court’s decision was rendered pursuant

to summary judgment in a case of equity, see § 3-2-204, MCA, the decision of whether a

constructive trust should be created; what, if anything, should be done for violation of an

economic restraining order in a dissolution proceeding; and the remedy for failing to

disclose a marital asset are all firmly committed to the discretion of the trial court for

which an abuse of discretion must be found. Here, there were no disputed facts and the

law—specifically § 40-4-252(4), MCA, and Briese, ¶ 39—allowed the trial court

discretion in fashioning an appropriate remedy. In Briese, we specifically rejected a per

se rule that automatically voids changes made in violation of an economic restraining

order, holding that equitable principles should govern rather than a bright-line rule that

beneficiary changes, as a matter of law, are void. Briese, ¶ 40 (“Other courts, while


                                            31
holding that the violation does not serve to automatically void the beneficiary change,

generally have found that courts have the authority to grant some form of relief through

use of their powers of equity.”). Pursuant to § 40-4-202, MCA, a district court has broad

discretion to distribute a marital estate equitably according to the circumstances of the

case and, absent clearly erroneous findings, “we will affirm a trial court’s property

distribution unless the court abused its discretion.” Marriage of Gebhart, 2003 MT 292,

¶ 16, 318 Mont. 94, 78 P.3d 1219. In my view, we have failed to account for the

discretion of the trial court in our standard of review. The District Court presided over

the dissolution, the probate, and claims of unjust enrichment and creation of a

constructive trust. I would accord the trial court considerable latitude and discretion in

applying and formulating an equitable remedy, and the trial court’s decision should not

be overturned in the absence of an abuse of discretion. See Rawlings v. Rawlings, 2010

UT 52, ¶ 21, 240 P.3d 754 (2010).

¶64    The decision reached by the Court reforms the Marital Settlement Agreement,

ignores the Final Parenting Plan, and invalidates life insurance contracts. The principal

issue before the Court is whether a constructive trust should be imposed on

$2,306,103.13 for the benefit of RBV, because Valerie was unjustly enriched when she

received Roy’s life insurance proceeds due to the fact that: (1) Roy violated the TRO by

changing beneficiaries of two life insurance policies; (2) Roy failed to execute a will

giving all of his assets to RBV; and, alternatively, (3) Roy failed to disclose Policy 799 as

an asset during their divorce.



                                             32
¶65    It is undisputed that Roy violated the economic TRO by changing his beneficiary

designations in two term life insurance policies during the pendency of his dissolution

proceeding and while the economic TRO was in effect. The issue, however, is whether

Valerie—who was not a party to the dissolution proceeding—has been unjustly enriched.

It is the third element of the test for unjust enrichment set forth in N. Cheyenne Tribe

which is at issue in these proceedings: whether “the acceptance or retention by the

conferee of the benefit under such circumstances as to make it inequitable for the

conferee to retain the benefit without payment of its value.” N. Cheyenne Tribe, ¶ 36.

The imposition of a constructive trust serves as a possible remedy to rectify the unjust

enrichment of a party. Accordingly, it must be inequitable for Valerie to retain the

benefit of Roy’s life insurance proceeds.

¶66    In Briese, the husband died while the divorce was pending and the economic TRO

was in effect. We stated in Briese that the purpose of an economic restraining order in a

dissolution proceeding is to “maintain the status quo” of the parties “so long as a

dissolution action is pending.” Briese, ¶ 25. An economic restraining order “mitigates

the potential harm to spouses and children caused by the dissolution process itself and

ensures that reasonable provision is made for the spouse and children during the

litigation.” Briese, ¶ 25. In fashioning an appropriate equitable remedy for a violation, a

trial court must be cognizant of these principles and considerations.

¶67    We revisited the issue in In re Estate of Corrigan, 2014 MT 337, 337 Mont. 364,

341 P.3d 623, when the husband died prior to the dismissal of the dissolution proceeding.

We held that the husband’s failure to serve his wife with the dissolution petition and

                                            33
accompanying economic TRO within the three-year deadline for service of pleadings set

forth in M. R. Civ. P. 4(t)(1) rendered the economic TRO ineffective after the three-year

deadline lapsed. In re Estate of Corrigan, ¶ 21. Because the TRO was no longer

effective, we refused to void the husband’s change in beneficiary designation to his adult

children from his wife, finding Briese distinguishable because it involved “an active and

ongoing divorce proceeding.” In re Estate of Corrigan, ¶ 21. We explained that “in

Briese we declined to adopt a rule that would automatically void any change of

beneficiary made by a decedent in violation of a divorce TRO. Rather, we gave the

district court the discretionary authority to void such a change if equitable principles

demanded it.” In re Estate of Corrigan, ¶ 20 (internal citation omitted).

¶68    Here, Roy’s death occurred after the divorce was finalized and the economic TRO

had been dissolved. Once the TRO was dissolved, the District Court recognized that Roy

would have been free to change his beneficiaries at any time.                 Pursuant to

§ 72-2-814 (2)(a)(i), MCA, Pamela, as an ex-spouse, would have been removed as a

beneficiary of any of Roy’s life insurance policies as a matter of law. Therefore, while a

change of beneficiary may have been voidable up until the dissolution was final, upon the

economic TRO being dissolved there were no restraints on Roy’s ability to change the

beneficiary. The District Court properly factored these considerations into its decision to

deny Pamela equitable relief, finding that Roy’s change of beneficiary was evidence of

his intent to make Valerie the beneficiary of his life insurance. Contrary to the Court’s

conclusion, the fact that Roy actually did change his beneficiary requires no speculation

about Roy’s intent and that he would have effectuated that intent subsequently through

                                            34
executing a valid change of beneficiary. The District Court, unlike this Court, refused to

speculate that Roy would not have followed through with a change when it concluded

that Roy obviously intended Valerie to be the beneficiary having made no further

changes after dissolution or the lifting of the economic TRO.         The District Court

observed that Valerie was not a party to the dissolution proceeding and, therefore, it was

not “inequitable” for her to receive the proceeds which Roy obviously intended her to

have and which had been memorialized in an insurance contract. This Court has not

found the District Court’s refusal to speculate or its findings regarding Roy’s actions

clearly erroneous.

¶69    Unjust enrichment is “the receipt of a benefit whose retention without payment

would result in the unjust enrichment of the defendant at the expense of the claimant.”

Restatement (Third) of Restitution and Unjust Enrichment § 1 cmt. a (2011); see also

§ 72-38-123, MCA. We relied upon 66 American Jurisprudence 2d Restitution and

Implied Contracts § 11 (1973) in N. Cheyenne Tribe to establish the elements of unjust

enrichment. N. Cheyenne Tribe, ¶ 39. “The doctrine of unjust enrichment or recovery in

quasi contract applies to situations where there is no legal contract but where the person

sought to be charged is in possession of money or property which in good conscience and

justice he should not retain but should deliver to another.” 66 Am. Jur. 2d Restitution

and Implied Contracts § 11 (emphasis added). Thus, to permit recovery on a theory of

quasi contract where a written agreement exists would constitute a reformation of the

contract and subversion of principles of law relating to contracts. A life insurance policy

is issued pursuant to a contract. Moreover, “[a] life insurance policy owner, like a

                                            35
testator, may alter or revoke designations at any time until death; thus, either

instrument—whether will or insurance policy—must be interpreted and applied at death

in order to effectuate the transferor’s final intent.”    Thrivent Fin. For Lutherans v.

Andronescu, 2013 MT 13, ¶ 7, 368 Mont. 256, 300 P.3d 117.               The District Court

determined that Valerie had not been unjustly enriched when she received proceeds

pursuant to a valid insurance contract. The District Court did not make an incorrect

conclusion of law or clearly erroneous factual finding in doing so.

¶70    The MSA, by its plain terms, provides that Roy was to execute a will making his

son the beneficiary of his estate, not his life insurance. Life insurance proceeds are

non-testamentary in nature and pass outside of the estate in accordance with the wishes of

the insured. Section 72-6-111, MCA. Neither the MSA nor the Parenting Plan include

any provision that states either party agreed to procure or maintain a life insurance policy

for the benefit of anyone. Although it is common for marital settlement agreements or

parenting plans to contain agreements requiring the procurement and maintenance of a

life insurance policy with minor children, as an aspect of child support, designated as

beneficiaries, neither the MSA nor Parenting Plan here mention anything about life

insurance. In fact, although Pamela was aware of at least one of Roy’s life insurance

policies she chose not to pursue Roy’s life insurance in the MSA. The District Court

recognized that although Roy was required to make a will naming RBV as the beneficiary

of his estate, Roy failed to do so prior to his untimely death.        The District Court

attempted to ascertain the intent of the parties when entering into the MSA and

determined that it was not the parties’ intention to include Roy’s insurance policies in the

                                            36
MSA or the Parenting Plan. Given the provisions of § 72-6-111, MCA, and that the

policy that was disclosed was given to Roy in the MSA, I agree with the District Court

that Roy’s failure to make a will does not support a finding that Valerie has been unjustly

enriched.   The Court thus incorrectly concludes that Valerie was unjustly enriched

because “Roy’s estate is unable to pay claims to his children or provide for their future as

was intended and promised under the MSA and the parenting agreement providing for

Saraya.” Opinion, ¶ 47. Such a conclusion confuses principles of contract, the District

Court’s findings of fact, and relevant statutory provisions.

¶71    As the Court appears to restrict its analysis only to Roy’s violation of the

economic TRO, I will not address whether a term life insurance policy is an “asset” with

a cash value and whether it was required to be disclosed or whether it would have been

significant to the parties in negotiating their marital property settlement. I would affirm

the District Court’s decision by applying a correct standard of review and the principle

that the District Court be afforded latitude in fashioning an appropriate equitable remedy

for violation of one of its orders.

¶72    I dissent.

                                                  /S/ LAURIE McKINNON




                                             37
