With all due respect, relative to Assignment of Error No. I, I dissent from the majority opinion reversing the judgment of the court of common pleas awarding Agnes Hook the proceeds of a life insurance policy on her deceased spouse, Donal Hook.
Agnes Hook (plaintiff-appellee/cross-appellant) and Donal Hook were married on December 23, 1970. Immediately before the ceremony, the parties executed an antenuptial agreement which mutually divested each one of the legal claims to the other's estate. On February 8, 1971, Donal Hook designated Agnes Hook as beneficiary under a life insurance policy on his life provided through his employment with the United States government. Suit for divorce was filed in Cuyahoga County by Donal Hook in June 1977. The domestic relations court on July 26, 1977, pursuant to Agnes Hook's answer and counterclaim, issued a temporary restraining order prohibiting Donal Hook from changing beneficiaries on his insurance policies and/or cashing in or allowing any insurance policies to lapse. The order listed some policies by name and also included "unknown life insurance policies with unknown companies," which included his employment insurance policy, the insurance policy which is at the root of this appeal. This action was still pending at the time of Donal Hook's death on October 28, 1977. The temporary restraining order preventing Donal Hook from changing the beneficiaries on any of his insurance policies was undissolved on the date of his death. In direct violation of such restraining order and in contempt of a court's order, Donal Hook changed the named beneficiary on his insurance policy provided through his employment, from Agnes Hook to his brother, Gerald Hook. After Donal Hook's death, on December 13, 1977, the proceeds of said policy, $38,956.06, were paid to Gerald Hook. On January 31, 1978, Agnes Hook filed a claim against the estate of Donal Hook under R.C. 2117.06, seeking payment of the insurance proceeds which were paid to Gerald Hook. Upon rejection of her claim, Agnes Hook commenced this action to recover said proceeds and prejudgment interest against the executors of the estates of Donal Hook and Gerald Hook. During the pendency of this case, Gerald Hook died on March 1, 1984, and Agnes Hook moved to have the executor of the estate of Gerald Hook substituted as a party defendant, which motion was granted by the trial court. The trial court rendered judgment in favor of Agnes Hook in the amount of $38,956.06 against the *Page 57 estate of Gerald Hook only, with interest to run from the date of judgment.
Upon a hearing on plaintiff's complaint, the trial court held that the antenuptial agreement had no bearing upon the case at bar, that regardless of the possible outcome of the divorce proceeding, a valid temporary restraining order was violated on September 8, 1977, and the proceeds of the subject insurance policy were paid to a beneficiary other than Agnes Hook, whose position as a beneficiary was supposedly ensured by the restraining order. The trial court described Agnes Hook's interest as a conditional expectancy interest in the insurance proceeds and that her position as such beneficiary was solidified by the domestic relations court's order of July 26, 1977.
Given the equity powers of the common pleas court and recognizing that a remedy at law in the form of contempt proceedings against a deceased defendant who violated the restraining order was no longer available, the change of beneficiary, while the restraining order was in effect, was rendered null and void and Agnes Hook was the only named beneficiary entitled to the insurance proceeds.
I agree with the trial court's position. The existence of or interpretation of the provisions of the antenuptial agreement are irrelevant to the issue of whether Donal Hook could violate a valid temporary restraining order to defeat Agnes Hook's interest in the insurance policy proceeds.
A fact which appears to be overlooked by the majority is that Donal Hook named Agnes Hook as a beneficiary on the subject policy on February 8, 1971, after the execution of the antenuptial agreement and marriage on December 23, 1970. Donal Hook had the right and ability to name his wife as the beneficiary notwithstanding the provisions of the antenuptial agreement. Defendant-appellant has argued that the antenuptial agreement provided that "each party hereto may freely sell or otherwise dispose of any or all of his property, now owned or hereafter acquired, by gift, sale or deed, during life, or by Last Will and Testament." Donal Hook obviously chose to "freely" name Agnes Hook as a beneficiary on his insurance policy after the marriage and execution of the antenuptial agreement. He had retained this right and he chose to exercise this right to benefit his wife, Agnes Hook.
Further, the fact that the antenuptial agreement provides that "each party is hereby barred from * * * all rights * * * or claims as widow * * *, heir, * * * survivor, or next of kin, andall other rights or claims whatsoever, * * * which may, in anymanner, arise * * * by virtue of said marriage" (emphasis added) would not prevent Agnes Hook from receiving the proceeds of an insurance policy on Donal Hook's life when Donal Hook, pursuant to the change of beneficiary, entered into a contract on February 8, 1971, with the insurance company, to pay the proceeds to Agnes Hook at his death. Such right of Agnes Hook to receive the proceeds of this policy as the named beneficiary of her husband should not be defeated by the wrongful act of her husband, when Donal Hook was later restrained by a valid court order in a divorce proceeding from changing the beneficiary on this policy.
This court is well aware that the Ohio Supreme Court in Hook v.Hook (1982), 69 Ohio St.2d 234, 23 O.O. 3d 239, 431 N.E.2d 667, found this agreement to be a valid bar to Agnes Hook's inheriting any property from her deceased husband's estate.
A careful review of the antenuptial agreement makes it evident that there are no provisions therein pertaining to a divorce of the parties and the subsequent division of property. Before the *Page 58 Ohio Supreme Court's decision in Gross v. Gross (1984), 11 Ohio St.3d 99, 11 OBR 400, 464 N.E. 3d 500, as in the majority of jurisdictions including Ohio, prospective spouses could only contract as to the division of their property at the death of one of the parties and the antenuptial agreements were generally enforced if the parties made a full disclosure of their assets and there was no showing of fraud, duress, or undue influence. Such agreements were generally recognized as being conducive to marital harmony. The validity of provisions in antenuptial agreements pertaining to a division of property and settlement of marital rights was one of first impression before the Ohio Supreme Court in 1984 in the Gross case. At the time the Hook antenuptial agreement was executed in 1970, the prevailing law in Ohio was that if such contract provided for a division of property and sustenance alimony upon the divorce of the parties, it was considered as being made in anticipation of divorce and held to be against public policy. Annotation (1931), 70 A.L.R. 826; Annotation (1935), 98 A.L.R. 533. The Supreme Court inGross in 1984 changed the law of Ohio and held that an antenuptial agreement containing provisions for disposition of property and setting forth amounts to be paid as sustenance alimony upon a subsequent divorce of the parties was not against public policy so long as the agreement was entered into freely and without fraud or duress and upon full disclosure. The Ohio Supreme Court further held that in a later judicial review of the agreement in a subsequent divorce proceeding, the sustenance alimony provisions had to meet an additional test of conscionability at the time of the divorce.
Thus, notwithstanding the rights which Agnes Hook did retain or release in the antenuptial agreement executed before her marriage, in the subsequent divorce action brought by her husband wherein she filed an answer, counterclaim for divorce, and a request for reasonable alimony and division of the property owned by the parties, once Donal Hook named her as a beneficiary on the subject policy, and once he was restrained by a valid restraining order from changing that beneficiary, Agnes Hook had a property interest in the subject insurance policy which was not affected by the antenuptial agreement nor could be defeated by the action in contempt of Donal Hook ignoring a valid restraining order.
Appellant's argument that the divorce action was an inpersonam action which abated on Donal Hook's death is of little consequence to the real issue here: whether or not Gerald Hook (or his estate) should remain the possessor of the insurance policy proceeds as a result of Donal Hook's violations of a court order. Equity considers as done that which ought to be done and here the common pleas court rightfully returned the insurance proceeds to Agnes Hook, the named beneficiary protected by the temporary restraining order prohibiting Donal Hook from changing said beneficiary on his insurance policy.
I differ from the interpretation of the majority relative toCandler v. Donaldson (C.A. 6, 1959), 272 F.2d 374. It appears that Ohio courts have not dealt specifically with the question of the rights of a surviving spouse named as beneficiary on an insured-husband's life insurance policy after he violates a temporary restraining order granted in a divorce proceeding prohibiting him from changing the beneficiary and where he dies before final adjudication of the parties' property rights. TheCandler case is pertinent to the case at bar. The majority gives undue weight to the fact that the widow of the deceased-insured had a child to *Page 59 support, and that the widow had been granted a temporary alimony and child support award. The majority accepted the finding of the United States Court of Appeals based primarily on the equities that had developed which prohibited the husband from changing the beneficiary. However, a close scrutiny of the decision inCandler reveals that the United States Court of Appeals overturned the district court's ruling in favor of the decedent's mother not only because of the equities in favor of the widow and son, but because the deceased husband had violated a temporary restraining order directing him to continue in force life insurance policies and be restrained from "`* * * assigning * * * or otherwise disposing of the property'" until a final adjudication of the interests of the parties. Id. at 377. In the present case, Donal Hook was specifically restrained fromchanging the beneficiary on all insurance policies. In Candler, the United States Court of Appeals declared that the restraining order directing the husband relative to the insurance policies had for its purpose the preservation of the status quo between the parties to the divorce action, until a final adjudication of the parties' property rights could be made. This was also the purpose of the restraining order in the case at bar. It is immaterial to the effect of the restraining order whether it was obtained by the wife pursuant to a petition for temporary alimony and to a cross-bill for a divorce as in Candler or pursuant to an answer or counterclaim by the wife as in the case at bar — the effect is the same — the insured-husband was restrained from changing the beneficiary on his policies from the wife to a third party. In Candler, the trial court had ruled that the wife had no vested interest in the policy merely by being named as beneficiary which would overcome the husband's right to change the beneficiary while a divorce suit was pending and where his death intervened before the entry of a decree, especially where the injunction directed against the husband did not specifically restrain him from changing the beneficiary. Further, the trial court held that it was not privileged to conjecture as to whether or not the proceeds of the policy would have been decreed to the wife in the final hearing. In reversing, the United States Court of Appeals held that the wife's interest in the policy was more than a mere contingent interest, that although the husband had a right to change the beneficiary reserved in the policy, certain equities had arisen in the named beneficiary's favor which denied the insured such right, and that the restraining order prohibiting the insured from "otherwise disposing" of the policies restrained him from changing the beneficiary. The fact that the new beneficiary, insured-husband's mother, was a pure donee beneficiary without any offsetting equities of her own, in addition to the violation of the court order by the insured-husband, weighed heavily with the appellate court.
In the instant case, the new beneficiary, Gerald Hook, brother of Donal Hook, is a pure donee beneficiary with no offsetting equities of his own. Although the majority refers to him as "needy," such fact was not included in the Stipulation of Facts of the parties. Agnes Hook was approximately sixty-seven years old at the time of Donal Hook's death. By obtaining a restraining order to prevent her husband from removing her as the named beneficiary on his policy, she attempted to ensure the statusquo until a final adjudication of her property rights in the divorce proceeding. The antenuptial agreement in question would not have prevented a domestic relations court from awarding her reasonable alimony pursuant to her request in her counterclaim, nor from considering the property *Page 60 rights of the parties in the subject insurance policy.
On the facts in this case, there were no equities of Gerald Hook which would have overcome the equities in favor of Agnes Hook.
I, therefore, respectfully dissent from the majority and would affirm the decision of the trial court awarding the proceeds of the insurance policy, $38,956.06, to Agnes Hook.
Relative to Cross-Assignment of Error No. I, I dissent from the majority. Since I would affirm the decision of the trial court in awarding the proceeds of the policy on the life of Donal Hook to Agnes Hook, his surviving spouse, I would, of necessity, rule that interest is to run, to the benefit of Agnes Hook, from the date the proceeds of life insurance were wrongfully received by Gerald Hook, December 13, 1977, and not from the date of the trial court's judgment.
The parties agreed in the Stipulation of Facts that the amount paid Gerald Hook on December 13, 1977, was $38,956.06. The amount of the debt is thus liquidated and readily ascertainable. Pursuant to the contract between Donal Hook and the insurance company, the proceeds of the policy were payable on his date of death, i.e., October 28, 1977, to his beneficiary and were in fact received by Gerald Hook on December 13, 1977, due to a change of beneficiary from Agnes Hook to Gerald Hook by Donal Hook on September 8, 1977, in direct violation of a temporary restraining order issued by the Cuyahoga County Court of Common Pleas on July 26, 1977. The fact that the estates of Donal Hook and Gerald Hook have denied owing the proceeds to Agnes Hook does not delay the running of interest on the debt. Braverman v.Spriggs (1980), 69 Ohio App.2d 58, 60, 22 O.O. 3d 47, 48,426 N.E.2d 526, 527.
R.C. 1343.03 provides that when money becomes due and payable upon any bond, bill, note or "other instrument of writing, * * * the creditor is entitled to interest at the rate of ten per cent per annum * * *."
An insurance policy is included in the statutory phrase "other instrument of writing." Clevenger v. Westfield Companies (1978),60 Ohio App.2d 1, 14 O.O. 3d 3, 395 N.E.2d 377, paragraph one of the syllabus.
It is immaterial that the insurance contract was between Donal Hook and the insurance company and not between Donal Hook and Agnes Hook. Agnes Hook was named beneficiary on said policy by Donal Hook on February 8, 1971, and had Donal Hook not changed the beneficiary to Gerald Hook in violation of a court order on September 8, 1977, Agnes Hook would have received the proceeds of the policy at Donal Hook's death on October 28, 1977. Accordingly, I dissent from the majority and would hold that the first cross-assignment of error is with merit.
As to Cross-Assignment of Error No. II, I dissent from the opinion of the majority due to my dissent relative to Assignment of Error No. I and Cross-Assignment of Error No. I. The trial court rendered judgment against only the estate of Gerald Hook. It would be illogical and inequitable to hold that Agnes Hook is entitled to the proceeds of an insurance policy which were paid to Gerald Hook by the wrongful act of Donal Hook in violation of a court order, to order interest paid to Agnes Hook thereon pursuant to R.C. 1343.03, and then not to make Agnes Hook whole by rendering judgment against only the estate of Gerald Hook as opposed to rendering judgment also against the estate of Donal Hook in joint and several liability for the proceeds and interest due as determined earlier. It would also be inequitable to allow the beneficiaries of the estate of *Page 61 Donal Hook to benefit, to the detriment of Agnes Hook, from the wrongdoing of Donal Hook in violating, during his lifetime, a temporary restraining order. Equity does not allow a wrongdoer to profit from his misdeeds.
Therefore, Cross-Assignment of Error No. II is with merit.
As to Cross-Assignment of Error No. III, I agree with the majority that since this case does not involve a wrongful conversion of property (by Gerald Hook), the trial court did not err in failing to award attorney fees to Agnes Hook, plaintiff-appellee/cross-appellant. Cross-Assignment of Error No. III is properly overruled.