Parge v. Parge

464 N.W.2d 217, 159 Wis. 2d 175, 1990 Wisc. App. LEXIS 1064

• Court: Court of Appeals of Wisconsin
• Decided: November 13, 1990
• Docket: 90-1659-FT
• Status: Published

Opinions

SULLIVAN, J.

Plaintiffs, Curtis and Christopher Parge, appeal from a judgment denying their motion for summary judgment and granting summary judgment for the defendants. Pursuant to this court's order dated August 29,1990, this case was submitted to the court on the expedited appeals calendar. Upon review of the briefs and record, we affirm the circuit court's judgment.

Franklin Parge died on June 1,1988. The plaintiffs, Christopher and Curtis Parge, are the remaining minor children from the decedent's first marriage. The defendant, Raquel Parge, is the minor child from his second marriage. Both marriages ended in divorce.

The plaintiffs seek to impose a constructive trust upon part of the proceeds of life insurance on the life of Franklin Parge. They base their entitlement on their parents' divorce judgment, wherein Franklin Parge was ordered to "maintain a minimum of $7,500.00 life insurance policy with the minor children of the parties as beneficiaries and that said insurance shall not be pledged, as collateral, borrowed against or reduced in value in any way. Said insurance shall remain in force until the children are no longer subject to support.”

According to the financial statement filed in the divorce, Franklin did not own any life insurance at the time of the divorce from the plaintiffs' mother, July 31, 1974.

At the time of his death, Franklin had two life insurance policies in effect. One policy, provided in connection with his job, had a death benefit of $15,000 and named Raquel Parge as beneficiary. This policy became effective on September 1,1987. The other policy, with a benefit of $1,510.89, was payable to Constance Parge, Raquel's mother. This policy was apparently originally owned by Franklin's father, and was not owned by Franklin until some time in 1977.

Because both parties moved for summary judgment, they have waived their right to a trial.

Despite their other differences, the parties do not dispute that the trial court could appropriately decide this case at summary judgment. In fact, both parties moved for summary judgment, putting the case in a posture where both parties waived their right to a full trial of the issues, and permitted the trial court to decide the legal issue presented.

Duhame v. Duhame, 154 Wis. 2d 258, 262, 453 N.W.2d 149, 150 (Ct. App. 1989) (citations omitted).

The appellate court employs the same methodology as the trial court in reviewing an order granting summary judgment. In re Cherokee Park Plat, 113 Wis. 2d 112, 115-16, 334 N.W.2d 580, 582 (Ct. App. 1983).

In addition, whether to impose the remedy of a constructive trust sounds in equity. Richards v. Richards, 58 Wis. 2d 290, 296, 206 N.W.2d 134, 137 (1973). Our standard of review for such a determination is one of abuse of discretion. Mulder v. Mittelstadt, 120 Wis. 2d 103, 115, 352 N.W.2d 223, 228 (Ct. App. 1984). Therefore, we employ two standards of review on this appeal.

Duhame, 154 Wis. 2d at 262-63, 453 N.W.2d at 150-51.

The trial court's decision to grant the summary judgment for one party over another is reviewed de novo, with review of the "ultimate decision to impose a constructive trust under abuse of discretion standards." Id. at 263, 453 N.W.2d at 151. '

Discretionary acts are sustained if the trial court "examined the relevant facts, applied the proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.” Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175, 184 (1982).

The facts are undisputed. In the first divorce, the judgment directed the maintenance of life insurance. However, no life insurance policies existed at that time.

As a basis for their argument, plaintiffs rely on Richards v. Richards, 58 Wis. 2d 290, 206 N.W.2d 134 (1973). Richards and several other cases in this jurisdiction¹ support the proposition that "provisions made in a divorce judgment requiring the decedent to maintain preexisting policies of life insurance for the benefit of his children impress a constructive trust upon the insurance proceeds. The order and the judgment of the trial court vested in the children rights to the proceeds that cannot be defeated by any action of the decedent." Estate of Laev, 115 Wis. 2d 168, 175-76, 340 N.W.2d 223, 226 (Ct. App. 1983).

Distinguishably, in the case before us, there were no preexisting policies. There was nothing for Christopher's and Curtis's right to "vest" in. More appropriately, Parge could have been cited for contempt for failure to acquire and maintain policies as ordered. The court order to "maintain" insurance gave rise to no right to a constructive trust over subsequently acquired insurance.

To impose a constructive trust on property transferred to a third party, the identity of the trust fund must be established. Truelsch v. Miller, 186 Wis. 239, 252, 202 N.W. 352, 357 (1925). In Truelsch, funds embezzled from the appellant were used to pay life insurance premiums. When that transfer of funds occurred, the policies became impressed with a trust in favor of the appellant. In this case, there were no "funds" or policies in existence at the time of the order. There was no transfer to another fund upon which a trust could attach because there was nothing to transfer. The trial court did not abuse its discretion by denying imposition of a constructive trust on the life insurance proceeds from policies which were acquired long after the first divorce judgment.² We therefore affirm the trial court's judgment denying the plaintiffs motion and granting the defendant's motion for summary judgment.

By the Court. — Judgment affirmed.

1 See also Wilharms v. Wilharms, 93 Wis. 2d 671, 287 N.W.2d 779 (1980); Prince v. Bryant, 87 Wis. 2d 662, 275 N.W.2d 676 (1979); Lee v. Preiss, 18 Wis. 2d 109, 118 N.W.2d 104 (1962); Estate of Boyd, 18 Wis. 2d 379, 118 N.W.2d 705 (1963); Will of Jones, 206 Wis. 482, 240 N.W. 186 (1932).

2 Even if there were a fund and its transfer, we do not believe it to be an abuse of discretion to find the equity to weigh in favor of Raquel Parge and thereby deny the plaintiffs' motion for summary judgment. See Duhame, 154 Wis. 2d at 267-68, 453 N.W.2d at 152-53.