COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 84027 JOHN A. CENC, ADMINISTRATOR : OF THE ESTATE OF DAVID L. : SCHNEIDER, DECEASED, : JOURNAL ENTRY : Plaintiff-Appellant : : AND v. : : OPINION MELISSA H. HAYES, EXECUTRIX : OF THE ESTATE OF JUDY H. : SCHNEIDER, DECEASED, ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 30, 2004 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Probate Division, Case No. 2002 ADV0057436. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Matthew J.D. Lynch Lynch & Associates P.O. Box 23279 Chagrin Falls, OH 44023 For Defendant-Appellee Louis J. Carlozzi Melissa H. Vana Hayes: Carlozzi & Associates Co., L.P.A. 1382 West Ninth Street, Suite 215 Cleveland, OH 44113 Martha Blanche Vana: Gayle J. Carson 7023 Mill Road Brecksville, OH 44141 -2- Aid Association for Peter A. Hessler Lutherans: Wegman, Hessler, & Vanderburg 6055 Rockside Woods Blvd. Suite 200 Cleveland, OH 44131 Variable Annuity Life Charles E. Ticknor Insurance Company: Heather P. Winters Thompson Hine LLP One Columbus 10 West Broad Street, Suite 700 Columbus, OH 43212 -3- TIMOTHY E. McMONAGLE, J.: John A. Cenc, Administrator of the Estate of David L. Schneider, deceased, appeals from the judgment of the Common Pleas Court, Probate Division, overruling his motion for summary judgment and granting judgment in favor of defendant-appellee, Melissa H. Vana Hayes, Executrix of the Estate of Judy H. Schneider, deceased. For the reasons that follow, we affirm. On August 28, 1968, Judy H. Schneider purchased a life insurance policy from Aid Association for Lutherans ("AAL") naming her fiance, "David L. Schneider,"as the primary beneficiary, "any children born of said marriage" as second beneficiary, and "John and Martha B. Vana, parents"as third beneficiary. Judy and David were married in September 1968. On July 20, 1971, Judy purchased a fixed retirement annuity from Variable Annuity Life Insurance Company ("Valic") and named "David L. Schneider, husband" as the beneficiary. No contingent beneficiaries were named. Judy and David executed a Separation Agreement on October 25, 1980, which was incorporated into a divorce decree three days later. The beneficiary designations of the AAL and Valic policies were not changed after the divorce and remained unchanged at the time of Judy's death on March 30, 2001. David died later that year on September 12, 2001. Both Judy and David died intestate. Melissa Vana Hayes ("Hayes") was appointed to administer the Estate of Judy H. Schneider. John Cenc ("Cenc") was appointed to -4- administer the Estate of David L. Schneider. Martha Blanche Vana ("Vana") is Judy's mother and was allowed to intervene in the action. Hayes, Cenc and Vana all claimed beneficiary rights to the proceeds of the AAL and Valic policies. The Valic annuity had a value of $140,824.17 and the death benefit under the AAL policy (with interest) was $7,530.83. Cenc filed a motion for summary judgment and the magistrate subsequently filed her decision granting Cenc 's motion. Hayes filed objections to the magistrate's decision, however, and the trial court subsequently issued a judgment entry and opinion sustaining the objections, overruling Cenc's motion for summary judgment and granting judgment in favor of Hayes. In his appeal, Cenc contends that the trial court erred in denying his motion for summary judgment, sustaining Hayes' objections to the magistrate's report, and entering judgment in favor of Hayes. SUMMARY JUDGMENT STANDARD This court reviews the trial court's judgment regarding a motion for summary judgment de novo and uses the same standard that the trial court applies under Civ.R. 56(C). See Renner v. Derin Acquisition Corp. (1996), 111 Ohio App.3d 326, 333; North Coast Cable Ltd. Partnership v. Hanneman (1994), 98 Ohio App.3d 434, 440. Summary judgment is appropriate when: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as -5- a matter of law; and (3) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 370; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. LAW AND ANALYSIS R.C. 1339.63, effective May 31, 1990, provides that the termination of a marriage itself revokes the designation of a former spouse as the beneficiary of death benefits. Under the statute, David's claim to Judy's policies would be extinguished pursuant to their divorce in 1980. In Aetna Life Ins. Co. v. Schilling (1993), 67 Ohio St.3d 164, however, the Supreme Court of Ohio held that Section 1339.63 cannot be applied retroactively to contracts entered into before the effective date of the statute because to do so would be an unconstitutional impairment on the obligation of contracts under Section 28, Article II of the Ohio Constitution. Therefore, because Judy entered into the contracts at issue prior to the 1990 effective date of the statute, the law in existence before that time is to be applied. Before the enactment of R.C. 1339.63, the general rule was that divorce alone would not automatically eliminate the right of a named beneficiary, i.e., the former spouse, to contract proceeds such as life insurance benefits. A separation agreement entered -6- into and made part of a divorce decree could operate to remove the former spouse as a beneficiary only if the agreement "plainly indicated"an intention to remove the former spouse as beneficiary, notwithstanding a failure to follow the procedures directed in the policy for changing the beneficiary. See Phillips v. Pelton (1984), 10 Ohio St.3d 52; Cannon v. Hamilton (1963), 174 Ohio St. 268. Thus, as noted by the trial court in its judgment entry and opinion, "the issue before the court is whether the language of the Schneider separation agreement `plainly indicates'the elimination of David, as the named beneficiary in the AAL and Valic policies, from all rights to the proceeds." We believe it does. The separation agreement, which was incorporated into the divorce decree, provided, in pertinent part, as follows: "WHEREAS, the parties hereto have agreed between themselves on division of property of the marriage and of the property owned separately by the husband and by the wife ***; and "*** "WHEREAS, the parties in reaching such agreement as set forth in this instrument agree the same to be in full settlement now and forever of each and all of their respective past, present and future claims and demands upon and against the property in the estate of the other ***; and "*** -7- "NOW, THEREFORE, in full and complete settlement, adjustment and compromise of all the property rights *** the parties agree as follows: "*** "INTANGIBLE PERSONAL PROPERTY: All *** items of intangible personal property separately and solely owned by or standing in the name of either of the parties or which either has a right or interest by reason of inheritance, devise, bequest or gift, shall and by these presents do remain his or her separate property free and clear of any and all claims, rights, title or interest of the other. "*** "MUTUAL RELEASE: Except as hereinabove provided, each party releases and discharges completely and forever the other from any and all rights of past, present and future support, division of property, right of dower *** right of distributive share in the other's estate *** or any other property rights, benefits or privileges accruing to either party by virtue of said marriage relationship or otherwise, whether the same are conferred by statutory law or the common law of Ohio, of any other state or of the United States. It is the understanding between the parties that this Agreement, except as otherwise provided herein, forever and completely adjusts, settles, disposes of and completely terminates, any and all rights, claims, privileges and benefits -8- that each now has or each may have reason to believe each has against the other arising out of said marriage relationship or otherwise ***." Contrary to Cenc's argument, we find this language more than sufficient to indicate the parties' intention to eliminate each party as beneficiary of the other, notwithstanding the fact that no specific change of beneficiary was made. Although the agreement does not specifically reference the life insurance policy and annuity at issue, it specifically references "intangible personal property," and life insurance policies and annuities, as conceded by Cenc, are clearly intangible personal property. Moreover, the agreement specifically provides that "all items of intangible personal property separately and solely owned by or standing in the name of either of the parties *** shall *** remain his or her separate property free and clear of any and all claims, rights, title or interest of the other." This language plainly indicates the parties'intention for Judy to retain the insurance policy and annuity as property "free and clear of any and all claims, rights, title or interest" of David. The agreement also specifically states that each party is relinquishing "any right of distributive share in the other's estate" and any right to future "division of [the other 's] property" and that the agreement is "in full settlement now and forever of each and all of their respective past, present and -9- future claims and demands upon and against the property in the estate of the other." We find this language equally indicative of the parties'plain intent to release all rights which each may have had in any property of the other which would pass upon death. In light of the parties ' intent, David had no right to the life insurance or annuity proceeds in Judy 's estate, despite the fact that no change of beneficiary was ever made, and the trial court properly entered judgment on behalf of Hayes. Our finding is consistent with this court's opinion in Mihalenko v. Merrill Lynch (Aug. 10, 1995), Cuyahoga App. No. 68682. In Mihalenko, this court held that language that "wife shall retain her full interest in her retirement assets, free and clear of all claims by the husband"was sufficient to indicate the parties'plain intention to eliminate the husband as beneficiary of the wife's IRA account, despite the parties' failure to specifically identify the IRA account in the separation agreement. In reaching its holding, the court noted that the separation agreement, like the agreement in this case, included a mutual release discharging each party from "any and all rights of past, present and future *** division of property, *** right to distribution of the other's estate, and any other property rights, benefits or privileges ***." Id. Likewise, in this case, we find the parties' reference to "intangible personal property," coupled with the releases found throughout the agreement, to be sufficient -10- indication of their plain intention to eliminate each party as beneficiary of the other. In its judgment entry and opinion, the trial court noted that R.C. 2101.24(C) gives the probate court the authority to exercise equity powers in disposing of matters where the legal remedy is inadequate. The court further found that "by enacting R.C. 1339.63, the General Assembly created an equitable solution to the unfairness of prior Ohio case law." Noting that "public policy, equity and justice dictate the ultimate outcome of this case,"the trial court held that "it is not equitable, fair or just that the beneficiaries of David's estate should benefit from a windfall." Cenc argues on appeal that the trial court erred in using its equity powers in rendering its judgment, however, because equitable remedies are not available to circumvent provisions of an express contract. We need not address this argument, however, because our holding that the language of the separation agreement indicated the parties' plain intent to remove David as a beneficiary, under the applicable law, disposes of the matter. See App.R. 12(A)(1)(c). Affirmed. -11- It is ordered that appellee recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court, Probate Division, 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. TIMOTHY E. McMONAGLE JUDGE PATRICIA A. BLACKMON, P.J., AND FRANK D. CELEBREZZE, JR., J., CONCUR. 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). .