COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77456 JEANNE CASEY : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION JOHN A. CASEY, Deceased, et al: : Defendant-appellees : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 26, 2000 CHARACTER OF PROCEEDING : Civil appeal from Cuyahoga : County Common Pleas Court, : Domestic Relations Division, : Case No. D 70-12774 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: HERBERT L. BRAVERMAN KATHERINE A. FRIEDELL Attorneys at Law Walter & Haverfield, P.L.L. 1300 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2253 For defendant-appellee: DAVID G. COLE Attorney at Law Reisenfeld and Co. 3659 Green Road, Suite 315 Beachwood, OH 44122 KENNETH A. ROCCO, J.: This case is before the court on appeal from decisions of the common pleas court, domestic relations division, which dismissed -2- claims against one defendant, Chin Mei Casey, for lack of personal jurisdiction and awarded judgment against the estate of John Casey for support arrearages. Appellant Jeanne Casey argues: I. THE TRIAL COURT ERRED IN ITS ORDER DATED APRIL 2, 1998, IN WHICH IT FOUND THAT IT LACKED PERSONAL JURISDICTION OVER DEFEN- DANT CHIN MEI CASEY IN HER INDIVIDUAL AND PERSONAL CAPACITY AND VACATED ITS JUDG- MENT ENTRY RECORDED IN VOLUME 2998, PAGES 969-970, IN WHICH THE COURT GRANTED PLAINTIFF JEANNE M. CASEY'S MOTION TO JOIN CHIN MEI CASEY IN HER INDIVIDUAL AND PERSONAL CAPACITY. II. THE TRIAL COURT ERRED IN ITS ORDER DATED DECEMBER 6, 1999, WHEN IT OFFSET THE LIFE INSURANCE PROCEEDS RECEIVED BY PLAINTIFF AGAINST THE ARREARAGES IN CHILD SUPPORT AND IN ALIMONY AND THE MONIES DUE HER AS A RESULT OF SEVERAL PRIOR JUDGMENTS WHICH HAD REMAINED UNPAID. IN THE PARTIES' 1972 DIVORCE JUDGMENT ENTRY AND IN THE PARTIES' 1975 SUPPLEMENTAL CONSENT JUDG- MENT ENTRY, DEFENDANT JOHN A. CASEY WAS ORDERED TO KEEP IN EFFECT A LIFE INSUR- ANCE POLICY NAMING PLAINTIFF AND THE PARTIES' FOUR (4) CHILDREN AS BENEFICIA- RIES. THIS OBLIGATION WAS A SEPARATE COMPONENT OF THE PROPERTY SETTLEMENT AND WAS NOT CONTINGENT UPON THE PAYMENT OR NON-PAYMENT OF CHILD SUPPORT OR ALIMONY OBLIGATIONS OF DEFENDANT. THE TRIAL COURT FURTHER ERRED WHEN IT DID NOT APPLY THE LAW SET FORTH IN THIS COURT'S DECISION IN STEWART V. STEWART (1999, NO. 73982, 8TH APP. DIST.) [SIC] WHICH MAN- DATES THAT NO SUCH OFFSET SHOULD BE MADE IN A SIMILAR FACTUAL SITUATION. Appellant failed to demonstrate that the common pleas court had personal jurisdiction over Chin Mei Casey individually. Therefore, the first assignment of error lacks merit. However, we agree with appellant that the trial court erred by setting off a part of the life insurance proceeds appellant received against -3- alimony and child support arrearages due from the estate. Accordingly, we reverse and remand for the entry of judgment for the full amount of arrearages due plus attorney's fees. PROCEDURAL HISTORY Plaintiff Jeanne Casey invoked the common pleas court's jurisdiction by filing a petition for divorce more than thirty years ago, on May 25, 1970. On July 12, 1972, the court entered judgment based on a separation agreement. The agreed judgment obligated John Casey to pay alimony of $7000 per year until Jeanne Casey's death or remarriage, as well as child support of $1,625 per year per child for each of the parties' four minor children. In addition, John Casey was ordered to take such action as is necessary to name the foregoing wife and minor children as the exclusive and irrevocable beneficiaries of life insurance policies on the Husband's life, in an amount of One Hundred Thousand Dollars net. The court entered a supplemental consent decree on Novem- ber 26, 1975, increasing John Casey's child support obligations to $55 per week per child beginning October 1, 1974, and to $60 per week per child beginning August 1, 1975. The court ordered that child support would be adjusted thereafter annually, beginning on January 1, 1977, to reflect changes in the Consumer Price Index. The court then entered judgment for Jeanne Casey for $2370 for child support arrearages through July 31, 1975. Finally, the court ordered that: -4- *** obligations contained in this Supplemental Judgment Entry as well as the original Separa- tion Agreement and original Judgment Entry, except for the alimony payments to Wife, shall become the obligation and debt of, and shall be paid from, Husband's estate in the event Husband becomes deceased before all of the orders contained in this Supplemental Judgment Entry and original Judgment Entry have been complied with, provided, however, that there shall be credited against such debt amounts which Husband has arranged to be paid to or for the benefit of his children under provi- sions of his Will or any trust agree- [sic] or trust declaration. Two additional judgments were entered on appellant's motions to show cause, on January 5, 1978 and March 1, 1979. The 1978 entry awarded appellant $4239.74, $4000 of which represented payments due to appellant under the separation agreement for John Casey's purchase of certain stock, while the remaining $239.74 represented unpaid medical expenses for the children. The 1979 entry awarded appellant $2476.74 in child support and medical expense arrearages. In November 1996, the court allowed appellant to substitute Chin Mei Casey, the personal representative of the estate of John A. Casey, as a party. Some six months later, in May 1997, the court allowed her to add Chin Mei Casey as a party individually. On July 2, 1997, Chin Mei Casey moved the court to dismiss the claims against her individually, asserting, among other things, that the court lacked personal jurisdiction over her. The court granted this motion and vacated its order allowing joinder of Chin Mei Casey individually, finding it did not have personal jurisdic- tion. -5- A magistrate heard appellant's motion to show cause and issued a decision with findings of fact and conclusions of law on December 15, 1998. The magistrate determined that the total amount of child support and miscellaneous arrearages as of October 28, 1998 was $50,743.83, including all of the previous judgments for arrearages and accumulated interest. The total alimony due to plaintiff as of April 25, 1996 (the date alimony obligations termi- nated due to John Casey's death) was $73,262.82. The magistrate concluded that these amounts should be offset by amounts paid to appellant and her children by the life insurance policy John Casey had been required to maintain under the 1972 judgment and separa- tion agreement. This policy had been maintained in the amount of $150,000 at John Casey's death, resulting in payments of $25,000 to each child and $50,000 to appellant. The magistrate determined that the amounts paid to the children fully offset the $50,743.83 child support arrearage, while the $50,000 paid to appellant reduced the alimony arrearage due to her to $23,262.82. There- fore, the magistrate decided the cumulative arrearage due to appellant was $23,262.82 and granted judgment for that amount plus attorney's fees of $20,000.00. Appellant objected to the magistrate's report, arguing that the life insurance proceeds should not be used to offset child sup- port and alimony arrearages. She asserted that the insurance policy was not intended to secure payment of support but was an independent requirement of the separation agreement. She further argued that the insurance proceeds were not paid under the pro- -6- visions of John Casey's will or a trust agreement or declaration, so they could not be credited pursuant to the provisions of th 1975 supplemental consent decree. Therefore, she urged the court o award her $50,743.83 in child support arrearages, $93,229.431 in alimony arrearages, $28,022.732 in additional monies due for past judgments, and $20,000 in attorney's fees. On December 6, 1999, the court overruled appellant's objec-et tions but modified the magistrate's decision and adopted it as modified. The court found that the amount of insurance the Defen- dant was required to maintain was unrelated to his obligation to pay child and/or spousal support. However, the amount of the policy John Casey actually maintained -- $150,000 -- exceeded the amount he was required to carry under the separation agreement, $100,000. The court found the excess insurance proceeds, $50,000, should be credited against the arrearages to avoid providing appellant with an undeserved windfall. The court then entered judgment for $23,262.82 plus attorney's fees in the amount of $20,000.00. Appellant timely filed her notice of appeal from this judgment on January 4, 2000. 1The record does not disclose how appellant calculated the claimed amount of alimony arrearages due. 2Appellant also does not disclose the source of this amount. We note that the magistrate's report determined the total due on all past judgments, including interest, was $28,022.73. The magistrate added this amount to the child support arrearages, resulting in the $50,743.83 total due for past due child support and miscellaneous arrearages. Appellant's request for judgment for $28,022.73 for past judgments, in addition to the $50,743.83, appears to be duplicative. -7- LAW AND ANALYSIS Appellant - missing her claims against Chin Mei Casey individually. She argues that Chin Mei Casey waived the defense of lack of personal jurisdiction by propounding discovery requests to appellant. Hfirst asserts that the trial court erred by disowever, appellant fails to dis motion to dismiss for lack of personal jurisdiction on July 2, 1997, three weeks before the discovery request was served on July 21, 1997. These circumstances do not demonstrate a waiver. Appellant also argues Chin Mei Casey has minimum contacts with Ohio because she is liable for John Casey's obligations to appellant under the terms of a post-nuptial agreement. Appellant did not make this argument to the common pleas court, however.3 Appellant bore the burden of demonstrating that the court had jurisdiction over Chin Mei Casey. Pharmet Corp. v. Biologics, Inc. (1994), 97 Ohio App.3d 477, 480. She failed to sustain that burden; therefore, the court did not err by dismissing appellant's claims against Chin Mei Casey for lack of personal jurisdiction. Appellant's second assignment of error challenges the trial court's use of life insurance proceeds to offset arrearages for child support and alimony. The trial court correctly determined that the $100,000 life insurance policy (which John Casey was 3 Indeed, she argued that it is not Defendant Chin Mei Casey's `minimum contacts' with the State of Ohio which grants this Court in personam jurisdiction over her. Instead, it is the `minimum contacts' of John A. Casey, of whose estate she is executor, which confers such jurisdiction. (Emphasis added.) -8- required to maintain with appellant and the children as named beneficiaries) was unrelated to his obligations to pay child support and alimony so that support arrearages could not be offset by the insurance proceeds. Nothing in the court's previous judg- ments either tied the insurance to support obligations or made his insurance obligations dependent upon the existence of support duties. Yet, the court inexplicably found appellant would enjoy an unwarranted windfall if she were able to collect $50,000 in additional insurance proceeds (over and above the $100,000 John Casey was required to provide) without setting this amount off against the arrearages. We do not perceive the additional $50,000 in insurance coverage as a windfall to appellant. First, appellant did not receive the entire $50,000 in additional insurance pro- ceeds; the children were also named as beneficiaries and shared in those proceeds. It is unfair to set off funds paid to appellant's children against arrearages due to the appellant. Second, the trial court's judgments did not require this set-off. Finally, John Casey controlled the amount of his insurance coverage; he clearly chose to provide this additional benefit to appellant and the children, over and above the amount required in the divorce decrees. The court had no ground for relating this benefit back to the divorce proceedings. Therefore, we reverse the trial court's -9- order to the extent it sets off $50,000 of the insurance proceeds against arrearages due to appellant.4 Appellant is entitled to judgment for child support and other miscellaneous arrearages of $50,743.83 and alimony arrearages of $73,262.82, through October 28, 1998. Neither party challenges the award of attorney's fees of $20,000.00. Accordingly, we reverse and remand to the trial court to enter judgment in appellant's favor for these amounts. Neither art v. Stewart (Mar. 4, 1999), Cuyahoga App. No. 74 Stew3982, unreported, nor Pope v. Pope (Apr. 11, 1997), Lucas App. No. L-96-198, is apposite. Stewart concerned the creation of a con- structive trust on proceeds of an insurance policy. Under the terms of a divorce decree, the proceeds of that policy should have been made payable to the decedent's child, rather than the named beneficiary. The named beneficiary argued that the insurance coverage requirement was only intended to secure the decedent's support obligations, so the insurance proceeds should only be payable to the child to that extent. This situation is simply not comparable to the issue involved here concerning the application of insurance proceeds to offset support arrearages due from the estate. Pope involved the validity of a divorce decree requiring a spouse to maintain life insurance naming the former spouse as beneficiary. The validity of the underlying decree is not an issue here. -10- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee her costs herein. It is ordered that a special mandate be sent to 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. ANN DYKE, A.J. and LEO M. SPELLACY, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .