COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68682 RONALD J. MIHALENKO : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MERRILL, LYNCH, PIERCE, FENNER : & SMITH, ET AL. : : Defendant-appellants : PER CURIAM : DATE OF ANNOUNCEMENT : AUGUST 10, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-276308 JUDGMENT : REVERSED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellants: RAYMOND J. SINDELAR, ESQ. THOMAS BLAIR WILBUR, ESQ. 11925 Pearl Road 6325 York Road, Suite 305 Strongsville, OH 44136 Parma Heights, OH 44130 LEGAL COUNSEL Merrill, Lynch, Pierce, Fenner & Smith 1375 East Ninth Street Cleveland, OH 44114 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas and the briefs of counsel. Appellant, Mark W. Wilbur appeals from the trial court's denying his motion for summary judgment and granting appellee, Ronald J. Mihalenko's motion for summary judgment. Mihalenko and decedent, Janice Wilbur, were married on April 1, 1978 and divorced on March 15, 1994. During the marriage decedent obtained an Individual Retirement Account ("I.R.A.") with Merrill Lynch on March 14, 1990 and named her husband, Mihalenko as the sole beneficiary. Decedent married Wilbur on May 28, 1994 and died eight weeks later on July 23 1994. The decedent did not change Mihalenko as the beneficiary of her I.R.A. account. Both Wilbur and Mihalenko made claims to Merrill Lynch for the proceeds to the I.R.A. account. Merrill Lynch would not disburse the funds until the court determined which party should receive the funds. Mihalenko filed a motion for summary judgment which the trial court granted. Wilbur's sole assignment of error states: THE TRIAL COURT ERRED IN OVERRULING APPEL- LANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Wilbur maintains that the trial court erred when it overruled his motion for summary judgment and granted Mihalenko's motion for - 3 - summary judgment. Specifically, Wilbur maintains that he was entitled to the I.R.A. proceeds pursuant to the decedent's divorce decree and pursuant R.C. 1339.63. The separation agreement Mihalenko and the decedent entered into stated the following: " * * * Wife shall retain her full interest in her retirement assets, free and clear of all claims by the Husband." The separation agreement also included the following: "Except as otherwise provided in this Agree- ment, each party completely releases and discharges the other from any and all rights of past, present and future alimony, support, division of property, right of dower, right to act as administrator or executor of the state for the other, right to distribution of the other's estate, and any other property rights, benefits or privileges accruing to either party by virtue of the marriage relationship, or otherwise, whether the same are conferred by the laws of the State of Ohio, or any other state, or of the United States of America." Before the enactment of R.C. 1339.63, the general rule was that a divorce alone does not automatically defeat the right of a named beneficiary to receive contract proceeds, such as an insurance policy, from a former spouse. Phillips v. Pelton (1984), 10 Ohio St.3d 52, 53. An exception to this rule applies where the terms of the divorce specifically indicates the elimination of the named beneficiary from all contract rights, regardless whether the specific change of the named beneficiary has been made in the policy. Id. - 4 - In Phillips, supra, the Court found specific language in the separation agreement which specifically provided that both parties completely and forever released the other from any and all rights each has, or may have as beneficiary in any life or other type of insurance policy issued to the other. The Court found this language sufficient to eliminate each party as beneficiary of the other notwithstanding the fact that no specific change of beneficiary was made in the policy itself. In the present case, the divorce decree incorporated the entire separation agreement. The separation agreement specifically stated that "* * *[w]ife shall retain her full interest in her retirement assets, free and clear of all claims by the Husband." No other mention of retirement assets was made in the agreement and the only retirement asset at issue in this case is the wife's I.R.A. with Merrill Lynch. In the above-cited language, the parties specifically directed their attention to the issue of retirement assets and expressed their intention to release all rights which each may have had. It is our view that this language was sufficient to eliminate each party as beneficiary of the other notwithstanding the fact that no specific change of beneficiary was made. Furthermore, we find that R.C. 1339.63 does not apply in this case. The effect of R.C. 1339.63 is to nullify a wife's or husband's designation of her or his spouse as the beneficiary of death benefits payable under contract where the marital relation- - 5 - ship was terminated after the designation was made and if the divorce decree does not specifically prove otherwise. R.C. 1339.63 became effective May 31, 1990. The Supreme Court of Ohio held in Aetna Life Ins. Co. v. Schilling (1993), 67 Ohio St.3d 164, 166 that R.C. 1339.63 cannot be applied in a constitutional manner to effectively nullify a contract entered into before May 31, 1990. In the present case, Mihalenko was designated the beneficiary of decedent's I.R.A. on March 15, 1990. It is axiomatic that a motion for summary judgment shall only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. Moreover, upon motion for summary judgment pursuant to Civ. R. 56, the burden of establishing that material facts are not in dispute, and that no genuine issue of fact exists, is on the party moving for summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66. However, in that Civ. R. 56(E) requires that a party set forth specific facts showing that there - 6 - is a genuine issue for trial, such party must so perform if he is to avoid summary judgment. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, at paragraph seven of the syllabus. Viewing the underlying facts in a light most favorable to Wilbur we conclude no genuine issue of material fact exist. The facts show that the parties specifically expressed in their separation agreement their intention to release all rights which each may have had in retirement assets. Therefore, Wilbur was entitled to the I.R.A. assets pursuant to Phillips, supra. Accordingly, Wilbur's sole assignment of error is sustained. Judgment reversed. - 7 - This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is ordered that appellants recover of appellee their costs herein taxed. It is ordered that a special mandate issue out of this Court directing said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN T. PATTON, CHIEF JUSTICE ANN DYKE, JUDGE JOSEPH NAHRA, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .