Moran v. Moran

THE COURT.

This appeal has been taken from an order of the superior court purporting to modify a property settlement agreement. The facts are not in dispute and are as follows:

Plaintiff secured an interlocutory decree of divorce from defendant in 1929. The interlocutory decree incorporated a property settlement agreement. The final decree was se

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cured in 1932. Both decrees have long since become final. The property settlement agreement provided for a full settlement of all of the property rights of the parties, including the settlement of all claims for maintenance and support possessed by the wife against the husband. The agreement also disposed of a described life insurance policy on the life of the husband, it being provided that the four minor children of the parties should be named beneficiaries of such policy.

The agreement in this respect provided as follows:

“Further, that that certain policy of insurance on the life of the second party hereto, shall be continued in force, and said policy shall be retained by the said first party, but that the beneficiary of said policy may or shall be changed to the names of Margaret, Cecilia, Edward and Elinore Moran, the children of the parties hereto, and in the event of the demise of the said second party the rights and benefits thereunder shall inure to the said children, each of said parties hereto waiving any and all claims thereto, or to the said policy of insurance.”

It is to be noted that the above provision is silent as to who shall pay the premiums on the above policy. In July of 1933 plaintiff filed an affidavit in the trial court in which it is stated that she has paid the premiums on the policy; that she is now unable to continue paying such premiums; that the policy has lapsed; that the lapsed policy has a cash value of $240. Plaintiff requested that defendant be compelled to join in releasing the cash value of the policy, the money to be for the “use and benefit of the minor children of the said parties, of whom affiant has the care, custody and control by virtue of the decree entered herein. . . . ” The trial court issued its order to show cause and subsequently—after a hearing—entered the order here appealed from entitled “Amended Order of Court re Life Insurance Policy”. This amended order provided that the plaintiff should surrender the policy to the insurance company, and ordered defendant to sign an application with the insurance company for the surrender of the policy, “which said surrender shall direct the Metropolitan Life Insurance Company to pay the proceeds of said policy to said Mary Moran”. The amended order continued as follows: