Bigbie v. Bigbie

1995 OK 72, 898 P.2d 1271, 66 O.B.A.J. 2227, 1995 Okla. LEXIS 88, 1995 WL 396678
CourtSupreme Court of Oklahoma
DecidedJuly 5, 1995
Docket80589
StatusPublished
Cited by8 cases

This text of 1995 OK 72 (Bigbie v. Bigbie) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bigbie v. Bigbie, 1995 OK 72, 898 P.2d 1271, 66 O.B.A.J. 2227, 1995 Okla. LEXIS 88, 1995 WL 396678 (Okla. 1995).

Opinions

SIMMS, Justice:

Charles Roy Bigbie, III (Husband), appeals the judgment of the district court granting a divorce to both Husband and Betty Louise Bigbie (Wife), and distributing marital assets. Husband claims the trial court erred in considering “future acquired property” in the form of future commissions on renewals of insurance policies in its determination of the marital assets and erred in placing restrictions upon Husband’s custodianship of a portion of their children’s property, namely insurance policies.

The Court of Appeals held the trial court did not err in treating the future commissions as marital property but concluded the trial court erroneously placed restrictions upon Husband’s management of the children’s insurance policy. Certiorari was granted to consider the questions of the inclusion of future commissions for renewal premiums on insurance policies as jointly acquired property in the property division of a divorce proceeding; and the restrictions on the children’s life insurance policies. Because the right to future commissions is a property right under a contract with an insurance company, those commissions may be properly included in the marital assets. The opinion of the Court of Appeals is vacated and the judgment of the district court is Affirmed.

Facts

Husband is an insurance agent employed by or contracted with a particular insurance company. It appears from the record that Husband is entitled to receive commissions on the renewal premiums on life insurance policies he sold for the insurance company. Upon granting a divorce to the parties, the trial court proceeded to divide and distribute the marital assets between them, including the future commissions in the marital assets. The trial court valued the future commissions at $26,964.00, and considered this sum as part of Husband’s distributive share.

Moreover, the trial court awarded to Husband certain life insurance policies insuring the children of Wife and Husband. Although the trial court did not attribute the value of those policies towards Husband’s share of the marital estate, the trial court did restrict the use and benefit of the policies to the children and ordered that no withdrawals or loans against the policies be made without first obtaining approval from the trial court.

I.

Future Commissions on Renewal Premiums of Life Insurance Policies

Husband first asserts error in the inclusion of his future commissions in the valuation of the marital estate. He points to Ettinger v. Ettinger, 637 P.2d 63 (Okla.1981), in which this Court held that stock options not in existence at the time of a divorce decree but possibly available to husband in the future were not jointly acquired property of the marital estate. Thus, the trial court in Et-tinger erroneously included those future stock options when distributing the jointly acquired property under 12 O.S.1981, § 1278.1

Husband contends the future commissions are future acquired property under Ettinger and may not be included in the marital as[1273]*1273sets. Husband also cites Charles v. Charles, 713 P.2d 1048 (Okla.App.1985), for support. In Charles, the Court of Appeals held a retirement account was not jointly acquired property where it had not vested in the husband at the time of the divorce. The husband would have had to work for the company which had contributed all of the funds toward the account for two more years before the husband acquired an interest in it.

Wife counters by distinguishing Ettinger and Charles and arguing the renewal commissions are more analogous to account receivables in a business where future cash flow results from prior account sales requiring no additional labor to generate. Because Husband does not have to invest additional labor to receive the renewal commissions, Wife argues such income should be treated like account receivables which are marital property. However, the reasoning of the Maryland Court of Appeals in a similar case to the one at bar gives credence to Wife’s argument.

In Niroo v. Niroo, 313 Md. 226, 545 A.2d 35 (1988), the court determined that anticipated renewal commissions on insurance policies sold by the husband during the marriage were included as marital property because the husband was entitled to receive the income under a contractual agreement with the insurance company which also provided for the husband’s heirs to receive the renewal commissions in the event of his death and allowed the husband to assign the commissions under certain circumstances. The court held:

‘When analyzed under the principles set forth in our cases, we think it clear that contractually vested rights in renewal commissions are a type of property interest encompassed within the definition of marital property under § 8-201 (e). That an insurance agent has a vested right in commissions on renewal premiums when provided for by contract is well settled.... This contractual right was clearly established in the husband’s agency contract whereby Penn Life agreed to pay him a stipulated percentage of renewal premiums collected in the future. Indeed, this right to renewal premiums cannot be terminated unilaterally by the company, but instead would require an affirmative surrender by the agent to forfeit the future commissions due.” 545 A.2d at 39 (Citations omitted).

The court in Niroo found no merit in the husband’s contention that it is after-acquired income because he must continue to “service” the accounts after the dissolution of the marriage in order to receive the renewal commissions. Rather, the Maryland court found, as Wife argues in the case at bar, that the “husband’s primary effort was expended in acquiring the original policies.” 545 A.2d at 40.

Moreover, in rejecting the husband’s argument that several factors including economic conditions, customer preferences and agency turnover render the renewal commissions too speculative to value, the court in Niroo looked to an OMahoma ease, Hall v. Farmers Ins. Exch., 713 P.2d 1027 (Okla.1985), to show that the value of such renewal commissions are predictable and quantifiable. In Hall, we held an insurance company was hable to one of its agents for bad faith breach of the agency agreement and determined that damages based upon the value of future renewal commissions were proper.

It is well settled that the right of an insurance agent to commissions on renewal premiums is determined by the terms of his or her contract of employment with the insurance company. Wagner v. Land, 152 Okla. 225, 4 P.2d 81 (1931); Central States Life Ins. Co. v. Walker, 143 Okla. 168, 287 P. 997 (1930). See generally 44 C.J.S. Insurance § 205(c) (1993); 4 Couch on Insurance 2d § 26A:232 (rev. ed. 1984); 16B Appleman, Insurance Law and Practice § 9001 (1981). We join the court in Niroo in holding the issue of whether future commissions on renewal of insurance policies are marital assets is determined by the agent’s rights to those [1274]*1274commissions under his or her contract with the insurance company.2

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Cite This Page — Counsel Stack

Bluebook (online)
1995 OK 72, 898 P.2d 1271, 66 O.B.A.J. 2227, 1995 Okla. LEXIS 88, 1995 WL 396678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bigbie-v-bigbie-okla-1995.