Opinion
Argued February 17, 2005.
Decided March 31, 2005.
Appeal from orders of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered April 30, 2004. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, so much of orders of the Supreme Court, Monroe County (Thomas A. Stander, J.), as had denied defendants' motion and cross motion for summary judgment dismissing the complaint and granted in part plaintiffs' cross motion for summary judgment, and had granted plaintiffs summary judgment dismissing the affirmative defenses and counterclaims of intervenor-defendant, (2) granted defendants' motion and cross motion, (3) denied plaintiffs' cross motion in its entirety and (4) dismissed the complaint against defendants and intervenor-defendant.
Kamens v. Utica Mut. Ins. Co., 6 AD3d 1237, affirmed.
Kamens v. Utica Mut. Ins. Co., 6 AD3d 1245, affirmed.
Underberg Kessler, LLP, Rochester ( Paul V. Nunes and Ronald G. Hull of counsel), for appellants.
Goldberg Segalla LLP, Buffalo ( Susan E. Van Gelder and Albert J. D'Aquino of counsel), for Utica Mutual Insurance Company, respondent.
Shapiro, Rosenbaum, Liebschutz Nelson, LLP, Rochester ( Warren B. Rosenbaum of counsel), for Violetta Q. Dickinson, respondent.
OPINION OF THE COURT
The question here is the effect of an agreement by a wife, as part of a divorce settlement, to "remove herself as primary contingent beneficiary" on an annuity payable to her husband. Plaintiffs, the secondary contingent beneficiaries on the annuity, claim that the wife's removal promoted them to primary status. Defendants claim the agreement allowed the husband to select his own primary contingent beneficiary. We hold that defendants' interpretation is correct.
Facts and Procedural History
Charles Dickinson was seriously injured in an accident in 1982, and as a result had a claim against parties who were insured by Utica Mutual Insurance Company. The claim was resolved by a settlement agreement dated September 1, 1983 among Utica Mutual, Charles Dickinson and his wife Susan Dickinson.
The agreement provided for a structured settlement, by which Charles was to receive a $447,200 payment immediately; payments of $3,000 per month for the rest of his life; and deferred payments increasing from $50,000 to $300,000, on the 5th, 10th, 15th and 20th anniversaries of the agreement. The agreement also provided for payments (not involved in the present dispute) to plaintiffs here, the couple's daughters Melissa, Amy and Sarah, when they reached their 18th, 19th, 20th and 21st birthdays.
The present dispute arises from the provisions of the settlement agreement dealing with the contingency that Charles would die within 30 years (by September 1, 2013). In that event, the agreement provided, the $3,000 monthly payments, until September 1, 2013, "shall be made in the following order: to Susan B. Dickinson if she is then living; if not, to Melissa, Amy and Sarah Dickinson, in equal shares, or their survivor(s); otherwise to the estate of Charles G. Dickinson." Identical language was used to describe the recipients of the payments to be made on the 5th, 10th, 15th and 20th anniversaries of the agreement, in the event Charles was no longer living when those payments became due.
Susan later began an action for divorce against Charles, which was settled by a stipulation placed on the record in open court on September 30, 1985. The settlement of the divorce action provided, among other things, for Susan's removal as a contingent beneficiary on the agreement with Utica Mutual. The key language of the stipulation is as follows:
"[Susan] will execute any and all forms or instruments necessary to remove herself as primary contingent beneficiary on annuity owned by Utica Mutual Life Insurance Company implementing a structured settlement that the parties received as a result of injuries suffered by [Charles]."
Charles remarried, and attempted to substitute his second wife, Violetta Dickinson, for Susan as the primary beneficiary under the Utica Mutual agreement. Although Susan did not sign any forms consenting to the change, Utica Mutual honored the request.
Charles died on August 29, 1999. Utica Mutual then began making the $3,000 monthly payments to Violetta. Plaintiffs sued Utica Mutual and Violetta, claiming that they and not Violetta were entitled to receive the monthly payments and the $300,000 payment due September 1, 2003. Supreme Court later directed that the payments be made into an interest-bearing account pending resolution of the case.
Supreme Court decided the case in plaintiffs' favor. The Appellate Division, with two Justices dissenting, reversed, holding that Violetta was entitled to the payments in issue. Plaintiffs appeal to this Court as of right, pursuant to CPLR 5601 (a).
Susan died on January 22, 2005, while this appeal was pending. The parties agree that plaintiffs are entitled to all payments due under the Utica Mutual agreement after Susan's death. The monthly payments that became due between Charles's death in 1999 and Susan's death in 2005, and the $300,000 payment due September 1, 2003, remain in issue. We affirm the Appellate Division's holding that those payments should be made to Violetta.
Discussion
The case turns on the interpretation of the 1985 divorce settlement: What did the parties mean when they agreed that Susan would "execute any and all forms or instruments necessary to remove herself as primary contingent beneficiary"?
Plaintiffs argue that Susan was agreeing to a "renunciation" of her interest in the Utica Mutual agreement, and point out that under Estates, Powers and Trusts Law § 2-1.11 (d) the effect of a renunciation is "as though the renouncing person had died at the time of filing" the renunciation. While it is undisputed that Susan did not file a formal renunciation, plaintiffs' argument is that she in substance agreed to do so. If Susan renounced her interest prior to Charles's death, she must be deemed to have predeceased Charles, and by the terms of the Utica Mutual agreement the payments after Charles's death should go to plaintiffs.
Defendants argue that the purpose of Susan's agreement "to remove herself as primary contingent beneficiary" was to convey her rights under the Utica Mutual agreement to Charles. Again, it is undisputed that no formal "conveyance" was executed, but defendants argue that a conveyance is what Susan in substance agreed to. If Susan's rights were conveyed to Charles, Charles was entitled to name Violetta, or anyone else he liked, to receive the payments that Susan would have been entitled to under the Utica Mutual agreement.
Thus, the abstract nouns "renunciation" and "conveyance" are simply ways of describing the parties' contentions about what Charles and Susan intended in their divorce settlement in 1985. The real issue is whether they meant that Susan step aside in favor of her daughters, or in favor of Charles. The record shows that defendants are correct: The parties intended Charles, not plaintiffs, to benefit from Susan's agreement to "remove herself."
A primary purpose in any divorce settlement is to divide assets between the husband and the wife, and where, as here, the wife agrees not to claim a particular asset, the natural reading of the agreement is that the asset becomes the husband's. It is true, of course, that parties may and often do agree to give assets to their children, but where that occurs one would normally expect the children to be mentioned. Susan's agreement to "remove herself" makes no mention of plaintiffs, suggesting that there was no intention to benefit them.
Other language in the divorce settlement supports this inference. The sentence immediately following the one in dispute in this case expressly gives a benefit to "the children." That sentence provides:
"In addition, [Susan] will execute any and all forms or instruments necessary to change her as primary beneficiary under the husband's life insurance policy and [Charles] will agree that he will appoint the children irrevocable beneficiaries of such policy."
Thus, when the parties sought to confer rights on plaintiffs, they left no doubt of their intention.
Finally, a colloquy that occurred in open court during the divorce settlement confirms that the clause in dispute was meant to benefit Charles. Charles's attorney, in response to a question asked by Charles himself, recited on the record that the parties had "tried to make an accommodation" so that not only Susan, but also plaintiffs, "would not be alternate beneficiaries under the Utica Mutual contract." The plan had been for Charles to buy out plaintiffs' contingent interests, for the modest sum of $5,000 each. According to counsel's recital this plan failed, not because Susan and Charles did not agree to it, but because the Supreme Court Justice "indicated that he has no jurisdiction over the girls." If, as this colloquy implies, Susan and Charles were ready to agree to extinguish plaintiffs' contingent interests in the Utica Mutual contract completely, it is most unlikely that the extinction of Susan's interest was intended to benefit plaintiffs rather than Charles.
In short, the Appellate Division correctly concluded that the effect of the disputed provision in the 1985 divorce settlement was to give Charles the right to name anyone he chose as the primary contingent beneficiary of the Utica Mutual agreement. Charles named Violetta, and Violetta is therefore entitled to the payments that became due under the Utica Mutual agreement between Charles's death and Susan's death.
Accordingly, the orders of the Appellate Division should be affirmed, with costs.
Orders affirmed, with costs.