-: SJC-13090, American Family Life Assurance
Company of Columbus v Dawn Diana Parker and another.
-: [Chief Justice Budd] Okay, Attorney Capodilupo, you're on.
-: Good morning, Your Honors.
I represent Dawn Diana Parker
and her two sons, minor children.
I assume you are all familiar with the Sveen
versus Melin, I want to try
to keep my comments as brief as I can.
I want to tell you concerning the dissent,
Justice Gorsuch exposed the majority
and he caught them in what they were trying to do
and what they did, and he wanted to warn
them to change their minds, and he wanted to warn
the states of our great country, and he warned
of automatic default rules with respect
to private life insurance contracts,
that they're dangerous, and he even pointed out
that they themselves admitted that when you apply
blind presumptions, injustice will occur
and that's our case today, and-
Justice Lowy: Can I interrupt you for a moment, counsel?
-: [Attorney Capodilupo] Yes.
-: I appreciate Justice Gorsuch's dissent,
but it was a dissent, and we're a state Supreme Court,
and the United States Supreme Court
has already analyzed the Minnesota Statute,
which is significantly analogous to ours,
in so that there's no violation of the Contract Clause.
-: That's right, Your Honor.
I think the great difference in why you should all rule
for the appellant, is because of the greatest
fact in the case, if you look carefully
in the dissent, and also the majority,
it was clear that no, there was zero true intent
concerning Mr. Sveen, all they had was a joint
checking account and that was it,
there was no other evidence and it didn't meet the clear
and convincing standard of the Minnesota law,
so in these cases, there seems to be a little exception,
that if you can't prove
what the intent was of the decedent,
then it would go to the primary beneficiary.
In this case, the intent was absolutely clear.
He purchased that policy to protect his widow
and his minor boys, and not his estranged
sister of 18 years, and the intent is absolutely clear,
he kept checking if Dawn was paying the premiums,
he did not cash it out, but could have.
There was an offer, an acceptance and a consideration,
you know, he said he was worth much more dead
than alive, there was absolutely, all this evidence
was absolutely uncontraverted by the appellee.
-: Can I slow you down for a second?
'Cause you just made a point about offer
and acceptance and consideration.
The trial judge doesn't address,
'cause you can still win, right?
Even if there is this presumption which you don't like.
You can still win if there is a contractual commitment
after that, and to me that's the tricky issue
in the case, is there such a contractual?
But, you don't argue that and the judge doesn't address it.
-: I was denied two oral hearings-
-: Was that raised below?
Was there an argument, 'cause I understand
everyone was pro se below.
Were you the lawyer below?
Did you raise this-
-: Yeah, in the Plymouth Court.
-: Okay, so did you raise the issue
whether there'd been a contractual commitment?
-: I didn't really get a chance to,
I was denied two oral hearings and-
-: Well Counsel, can I ask a more pointed
question to Justice Kafker?
In the complaint, is there some other count
by which relief could be in the nature
of some kind of constructive or resulting, something?
-: Oh, absolutely, I put everything under the sun
in that complaint and it's in the appendix,
it is in there, and I put everything-
-: That's fine, so that gets to Justice Kafker's point,
so if we're focusing just on this particular issue,
about whether or not, that doesn't answer
the question of whether or not your client
could be vindicated on some other theory,
but looking at this particular statutory scheme,
are you saying that?
I mean, what are you saying?
That it's unconstitutional?
That it's...
What's your theory here?
Are you just saying that you don't like the result
because the legislature passed a law that in your view,
is unfair to your client?
-: I think the whole purpose of the law
is to make sure that funds are not misdirected,
and applying this terrible case, and I do believe
Sveen is gonna be overturned one of these days,
because of their flagrant violation of the Contract
Clause, I know what it says, but it says any appellant,
and also in the retroactive application-
-: Can you hold on a minute, please?
I think you missed the fast ball
down the middle with the question.
So, if you could just say, are you saying
that there was an oral contract-
-: Yes.
-: that takes priority over the Statute
'cause it's within one of the exception?
-: If you're gonna apply and actually-
-: Wait a minute, the answer to that's yes?
-: What was the question, again?
Oral contract, yes, if you-
-: Okay, now hold on, now let's go to Justice
Kafker's question, there's nothing in the summary
judgment record that suggests, well you didn't
provide the summary judgment record to us,
but I assume there's nothing in the summary
judgment record that raises this oral contract
about the life insurance.
-: I can't remember what it says.
I'm gonna assume it says it, I just, I can't,
I put everything I could think of in there
and I was denied an oral hearing
to even discuss it, to you know, that was twice-
-: Well, I understand that you were denied
an oral hearing and it was a dispositive motion,
but does the judge in the summary judgment
record have anything that suggests a genuine
issue of material fact, that there was some sort
of, an agreement between the ex-husband and ex-wife
relative to the life insurance policy?
-: Absolutely, absolutely there was.
We made it very clear that they, after the divorce,
and even before, she agreed to take over
the payments, it was an offer, acceptance and consideration
she performed and-
-: And, what piece of paper in our record
that we have right now says that?
-: Complaint, for one, and I don't have the summary
judgment record in front of me-
-: Neither do we, neither do we.
With the genuine issue of material fact,
is there an affidavit?
Is there something that was before the judge
that suggests that there was an oral contract?
-: The Statute doesn't say written contract,
oral contract, they can make an exception,
and it's clear from all the facts that we presented
through affidavit, through interrogatory, that they did
have an agreement to continue the payments,
and I think that, if the Statute, this terrible Statute
is gonna apply, that that is an exception
written in there, and also, the retroactive
application, the Statute doesn't say
it's gonna be applied retroactively, if you assume
that Sveen is a constitutional case.
What else do I wanna say?
Case turns on intent, I mean, you know,
look at the face of just the insurance policy.
It was for a common disaster that the mother
should wind up getting the money.
He left it to his wife, and think too,
just because you get a divorce, the Sveen case says,
it's not a gumball machine where it's automatic.
There's an inquiry whether there's an intent here,
that's the issue in this case, and this is why
the appellant should win this case,
and this is why this court should find for Dawn
Diana Parker, because it's unlike Sveen.
It's very clear in Sveen that Sveen's intent
was totally unknown, it says it sounds like he wanted
to give the second wife the money,
but it's not clear, didn't meet
the clear and convincing standard.
We got tons of evidence in this case
about intent, it takes it out of that horrible
Statute and all the women's groups didn't even want
the darn thing, you know, Styles versus Styles
was a wonderful case because it was absolutely clear,
and this muddy thing is horrible,
and look at the injustice it's gonna cause in this case-
-: Counsel? Counsel?
Can I ask you a quick question?
Is there anywhere in the materials that you presented
that show that there was an oral argument,
I mean, sorry, an oral contract?
Yes.
-: I mean, gee, is it not a contract
in my interrogatory answers and in her,
just the interrogatory answers in our affidavit
clearly show that he was extremely concerned
that the children get the money and her,
and he, what does it say?
That's uncontraverted, they don't even have one affidavit
or any witness or any, they didn't even take
a deposition to counteract it, it's completely
uncontraverted that that's simply the way
the facts were that he's worth more dead than alive,
and he wanted to make sure that, now, who else
would he have benefited from, even if he did do
that ridiculous thing to recontact the insurance
company and tell the insurance company
he wants to remake Dawn the primary beneficiary,
isn't that the stupidest thing
you ever heard in your life?
Because it's unnatural-
-: Counsel, counsel, you're not making
a closing argument, if we could just go back
to the question, because again,
you didn't provide us with the summary judgment record.
Is what you just referred to, by way
of affidavit and interrogatory,
did Judge Squires-Lee have that in front of her
when she was ruling on the summary judgment motion?
-: Yes.
-: And your suggestion is that,
because your client's answer to an interrogatory
was that she heard her ex-spouse say
he was worth more dead than alive,
that she continued to make the life insurance
payments, that that is enough
to establish an oral contract.
-: No, also she completed the performance
of the premiums that-
-: Yeah, that's what I said.
-: I don't know if the court accepted
the documents from the probate court,
but it's unlike Sveen, it's absolutely clear
that he knew he had a life insurance-
-: But you, Counsel, you recognize that the judge
did not have the insurance premium payments
before her, right?
-: Well, the evidence was it was uncontraverted,
that Dawn paid it completely, and the only problem
was whether or not the divorce caused her to be dead,
caused her to be, you know, I did put constructive
trust in the, and, you know, is there any evidence-
-: I just wanna ask you again, so that we know
the answer to the question.
You're not saying that the judge in the summary
judgment motion had documentation of payments
of premium, that's why you wanna enlarge the record,
the judge didn't have that, right?
-: She had the evidence that a sworn testimony
of Dawn that she paid the premium was uncontraverted,
and I think Aflac also corroborated that too,
the premium was paid, it was all paid.
It's just a question in this case of who gets the money.
-: [Justice Wendlandt] Counsel, can I ask you a question?
-: Yes.
-: Thank you, the-
-: This is really just horrible, it's a horrible law.
-: I understand that you're frustrated.
-: Who forgets he leaves $100,000 somewhere?
-: Counsel, counsel, we're gonna have to ask
you to stop if you can't listen to the questions
and then answer them.
That's the only way we work here,
so I'd ask you to bring your voice down,
listen to the question, and then answer
to the best of your ability.
-: Yes, Your Honor.
-: [Chief Justice Budd] Justice Wendlandt
has a question for you.
-: I said, your client was also the insured
under this life insurance policy?
-: That's right.
-: That's right, and so, as the insured,
she would've had an incentive
to pay the premiums as well, right?
-: Absolutely.
-: In fact, she designated the children
as her beneficiaries, or the estate directly, right?
-: I think the policy just says, Dawn Diana
Parker is the primary, he was actually talked
out of putting the kids down 'cause they were minors
and he'd have to get extra lawyers or something like,
but, so they put-
-: Well, we can look at the written document.
I guess my last question for you is the following,
the document, the actual policy says you cannot change
the beneficiaries without a written request
made to the company.
-: But, why would he send it?
-: [Justice Wendlandt] Was that made?
-: The answer's no, and the answer is completely,
this is a private contract.
This is protected by the constitution,
and not only that, I mean, why would
anybody do such a thing?
You know, again, this contract was signed in 2010,
and it was issued the next day on January something,
first or something, 2011.
The law was amended in, you know,
what are the boys gonna say?
"Our father's a bum, because he didn't keep up
while he was dying of heart problems,"-
-: Counsel, could I ask this question again?
Because I think we're all trying to get to the same thing.
If you're saying that the Statute is unconstitutional,
that's a separate thing.
-: All right.
-: Are you saying that your client
established in the summary judgment record
that there's a disputed issue of material fact,
that she fell into one of the exceptions
to the Statute applying?
-: I didn't say those words exactly.
Frankly, I brought it up probably during the appeal,
'cause when I was looking at the Statute,
it seems like there's an exception
for an oral contract that takes it out,
and you know, the Statute does say before,
during, or after the divorce, marriage, or whatever,
annulment, if there's an oral contract,
but you know, what am I gonna say?
Just. (sighs)
I have a few more things to say, I can stop,
and let you get your ears back.
I'm sorry, I'm emotional about this because-
-: You've got 20 seconds, sir, you have 20 seconds to say,
well, 15 now, anything else?
-: He bought that policy to protect
his widow and his children, and not his estranged sister
of 18 years, and manifest injustice,
that's what Justice Gorsuch predicted, what happened.
-: Okay, thank you, sir, thank you very much.
We're gonna move on to Attorney Hurley.
-: May it please the court, I represent the mother
who is Ms. Joanne Parker.
The appellee is the elderly mother of the decedent.
The court should be aware of the Superior Court record,
and at least part of it can be seen
at record exhibit pages five and six.
The complaint was filed by Aflac,
the insurance company, setting forth the chronology.
However, the appellant, although she did file
an answer to the complaint, and she did file
an answer to the mother's cross-claim, did not file
any cross-claim or counterclaim at the Superior Court,
as may be verified by the record.
On June 24 of 2009, the appellant filed her answer
on affirmative defenses through the complaint,
and then on September 11 2019 she filed her answer
to the cross-claim of my client, the mother.
The relevant Statute here has been,
which is Chapter 190B Section 2-804,
in one form or another has been adopted by a majority
of the states in the union, as we see in the first-
-: Can I target you for a second?
'Cause I mean, I follow the probate judge's
thoughtful decision, but then I don't address
this issue of contract, and I'm not sure she has to,
or he has to, but I'm concerned about page 89
in the appendix, where she in her answer
to her interrogatories which are swarmed
with the pains and penalties of perjury,
now I don't know if this is done properly
or not, she makes the following comment
that she's paid these premiums...
I'm just looking for the, so, "Shaun often joked
to me he was worth more dead than alive.
During those times when he asked me if I was still
making the premium payments and I assured him I was,
it is clear to me that he firmly believed
there was nothing more he needed to do
to make sure I got the life insurance policy
benefits for our children, that was the whole purpose
of it, he told me."
And, then I noticed that she has sworn
under the pains and penalties of perjury
this point; "Is that enough to create
a contractual issue that fits
within these statutory exceptions?"
It may not be, and it may not have been pled
properly, but it just seems like it's there.
Can you address that point for me?
-: Yes, Your Honor.
I'm not sure that this interrogatory answer
was part of the summary judgment record.
Justice Kafker: Okay, so that-
-: But even if it were, I'll suggest that it would not
fit under the statutory exception
to the automatic revocation, which does include
a contract before or after the divorce.
-: You can contract afterwards, right?
I mean, the Supreme Court clearly says
that these kind of beneficiary changes are allowed
without violating the Contract Clause,
but it also doesn't it expressly say,
I can't remember now, that you can create
a contract afterwards that resurrects
these things or changes this.
In fact, that's standard in probate law where,
it's weird that it wasn't addressed,
the life insurance policy, but it's, I mean,
we see these all the time, right?
So, I'm just trying to figure out
what we do with this sort of unanswered issue.
-: We know that the parties' separation agreement,
which became a judgment, did say that this agreement
represents the entire understanding
of the parties, no other statements
have been relied upon.
Justice Kafker: Did it say that?
Or did it say that only as it related to alimony?
-: It said it as to the entire
separation agreement, Your Honor.
The-
-: So, even if that, and I have no reason
to believe that you're reading that incorrectly,
so assuming that the separation agreement
was of the end of the marriage,
and the agreement as to the separation of assets,
isn't it possible under the Statute
to get around the default rule
by entering into a contract?
Whether written or oral, going back to the prior rule,
meaning that the ex-spouse is still the beneficiary
for the life insurance.
It seems to me that's what, I don't know
what to call it, the plaintiff is alleging.
Attorney Hurley: Prior, the ex-wife?
-: Yes.
You're saying there was an oral agreement,
you know, you're reading the separation agreement
so it must have been after,
after the separation agreement that I would keep
paying the premiums and that I would
still be the beneficiary.
-: The language in Section 2-804 refers
to there being an agreement relative
to the, I believe it's property distribution
or something to do with the divorce.
If I can get the actual statutory language, I think
here we don't know when this agreement was made,
and we know that the premiums
came to roughly $1200 a year.
If we were to look at what the former wife,
appellant wants to add to the record,
it is, I believe, financial statements,
but those financial statements indicate
that both were paying for life insurance
in amounts that would be well over the actual amounts
that we see on the policy.
The first page of the agreement has actual
quarterly policy amount of 200 and something dollars,
and we also see from the initial policy
that the decedent was paying approximately
$15 a week towards the policy.
-: I'm sorry, go ahead Justice Lowy.
-: I just want, one just pointed question,
that would really be helpful.
Page 89 in the appendix dealing with the answer
to the interrogatory arguably suggesting an oral contract.
Was that before the judge at summary judgment or no?
I don't know the answer to that question.
The summary judgment record isn't before us.
Was that interrogatory before the judge?
-: I'm sorry, I don't know.
However, the appellant was responsible
for presenting the record and the Superior
Court judge did specifically say,
after referencing that the separation agreement
was fully integrated essentially, that the statements
were inadmissible in substance.
The very conclusion of the Superior Court's order
basically says that the only way
to realistically look at the intent
is to look at the written document,
which is the separation agreement,
which is very detailed.
It includes their cars, it includes debt,
and so, there clearly was no obligation
for the husband to continue with life insurance.
-: Yeah, but the Acts and Resolves in, I think,
2007, in Chapter 43 Section 5 of the Acts and Resolves,
talking about the default, says that any rule
or construction or presumption provided
in this act applies to the governing instrument
executed before the affective date,
unless there is a clear indication
to the contrary intent.
So, the question is, is there a clear
indication to a contrary intent before Judge,
I think it's Squires-Lee, because of a answer
to an interrogatory that Justice Kafker referenced?
-: We have, Your Honor, there is no clear intent here.
There's no date given.
The interrogatory specifically says, "At that time."
It starts off referencing the Aflac,
the life insurance policy, it references
the joint financial statements, and then it says,
"At that time and thereafter."
So, we don't know when these statements
were made, and what would be the consideration?
That there are these alleged promises to pay,
but it's not an actual contract.
-: Well, if he discontinues, he has the unilateral
right to knock her off, right?
So, he's, in consideration of her not paying,
he keeps her on because she keeps paying,
that seems like that's consideration, isn't it?
-: We have no evidence Your Honor, that she paid.
-: So, do we know who paid for this policy?
-: We know they both, in their financial statements,
which were not before the Superior Court,
they both said that they were making payments.
-: You're talking about the financial statements
that were submitted to the Probate Court prior to this case?
You're talking about the divorce case, right?
-: Yes, Your Honor.
-: And, by the way, they're pro se a divorce, right?
There's no lawyers involved in the actual divorce, right?
-: That's correct, and they both acknowledge
that they each had the right to obtain a lawyer.
Justice Kafker: Right.
-: The presumption here is because most divorcing
parties don't want a windfall.
The tacit assumption is that this money
would be going to the children, but it's clear
that the appellant would have the money for herself
if she were to prevail.
The problems-
Justice Kafker: Can I do another?
I hate to be difficult, but I'm reading
the record 'cause it seems to be changing
each time, so look at page 69 of the divorce decree.
I take it this is before the judge, right?
Or is that...
And, it's listing a personal property,
it lists retirement plans, this is the court form.
Personal property, retirement plans, and then they check
the box, "The husband and wife have already divided
between themselves all their personal property,
which includes retirement plans, and they are satisfied
that the division was fair."
What do we make of that?
-: They divided their cars, they had been separated
since 2009, seven years prior to the divorce,
and so there was nothing left to argue about
as far as personalty.
-: Well, but this suggests that they worked
out an amicable agreement regarding
the retirement plan, doesn't it?
-: But, life insurance is separate and distinct from-
Justice Kafker: Okay, so, oh, you're right, I'm sorry.
I apologize, okay.
-: It's clear that this Statute isn't being applied
retroactively in this case, because the divorce
was in 2016 and the law passed in 2012.
As Justice Kagan notes in her decision,
in the eight to one decision,
which I'll suggest is not going to be reversed
in our lifetimes, it's a very minor burden
on the policy holder to switch his or her policy,
beneficiary, and every time there's a premium,
as the decision notes, there's very often
a statement about you can go online
and what your rights are as far as what you can do.
So, where there was no obligation,
and there was no firm evidence of any agreement,
the appellant would effectively be eating up
a hole in the heart of Section 2-804,
and make the exception greater than the rule itself,
because any surviving ex-spouse
can make claims about what was said
when the decedent isn't there.
-: Well Counsel, that's not really true,
because we're at summary judgment.
It's not saying that they'll win,
it's just whether or not they should
be given an opportunity to prove their case.
So, the question before us, was there a material
issue of disputed fact that that exception
would apply, and if that was in front of the motion judge?
-: The motion judge, I think correctly concluded
that there was no admissible evidence of it.
It was in the paragraph above order,
"Although Diana Parker argues paren
without offering any admissible evidence paren,
that Shaun intended that she and the children
received the policies death benefits.
The separation agreement is better evidence
of a lack of intent to secure those benefits,"
and it goes on.
So, to have a trial in these circumstances
would effectively eviscerate 2-804.
We know as a matter of law, the separation
agreement was the agreement, imagine if the wife
went to court at the Probate Court and said,
"Ah, he promised the life insurance
and I found out it expired,
and now he should be in contempt."
There is no binding contract here,
even if we believe the allegations of the divorced spouse.
-: [Chief Justice Budd] Any other questions?
Thank you, Counsel.
Attorney Hurley: Thank you.