# Abrego v. Abrego > Supreme Court of Oklahoma · May 21, 1991 · 62 O.B.A.J. 1665 URL: https://www.frixlaw.com/law-library/cases/9614091 ## Case - **Full name:** Linda ABREGO, Petitioner, v. Roy F. ABREGO, Respondent - **Court:** Supreme Court of Oklahoma - **Decided:** May 21, 1991 - **Citations:** 62 O.B.A.J. 1665; 812 P.2d 806; 1991 OK 48; 1991 Okla. LEXIS 54; 1991 WL 84140 - **Precedential status:** Published - **Opinion:** Dissent by Simms - **Judges:** Kauger, Hodges, Lavender, Doolin, Hargrave, Wilson, Summers, Opala, Simms - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9614091 ## Opinion text SIMMS, Justice, dissenting: I must respectfully dissent from the Court’s acceptance of certiorari to review this certified order. The action before us is moot and should be dismissed. The divorce proceeding abated as a matter of law with the father’s death in November, 1990. See, Pellow v. Pellow, 714 P.2d 593 (Okla.1985); Mabry v. Baird, 203 Okl. 212 , 219 P.2d 234 (1950). Additionally, however, I must also take issue with the answer the Court provides in its advisory opinion. There is no support for holding that a lien in favor of petitioner may be impressed upon the proceeds of this life insurance policy for child support payments and other costs due at the policyholder’s death, when another person is the beneficiary. The rights of the beneficiary under this life insurance contract vested immediately and became fixed upon the death of the insured. Carson v. Carson, 166 Okla. 161 , 26 P.2d 738 (1933); Harjo v. *814 Fox, 193 Okl. 672 , 146 P.2d 298 (1944); O’Neal v. O’Neal, 193 Okl. 146 , 141 P.2d 593 (1943). In ruling that the proceeds of this policy may be encumbered to secure child support after the death of the insured, the Court ignores fundamental concepts of vested rights and basic tenets of insurance law as it runs roughshod over the rights of the beneficiary and the insured. If, as the majority holds, 43 O.S.Supp. 1989, § 116 authorizes the trial court to place a lien on proceeds of a pre-existing life insurance policy belonging to a third party beneficiary to secure payment of child support unpaid at the time of the insured’s death, then that statute is unconstitutional. The beneficiary’s rights vested and were fixed at the time of the insured’s death, and this Court has no power to take that property from the beneficiary who is not even a party to this action, and give it to another. The majority’s reliance on Aetna Life Ins. Co. v. Bunt, 110 Wash.2d 368 , 754 P.2d 993 (1988) is misplaced. Unlike the instant case, the children of that insured father were making a direct claim to the proceeds of the insurance policy as rightful beneficiaries. The father there had been under an express court order in the divorce decree to maintain a life insurance policy with his children as irrevocable beneficiaries. He later violated that order by changing the designated beneficiary from his children to his second wife. Ruling in favor of the children, the court determined that the father’s right to designate a beneficiary was restricted by the provisions of the decree and that the second wife was therefore not a “lawful beneficiary” within the definition of the exemption statute and was not entitled to take proceeds under its protection. We have not been asked to determine whether or not the trial court here could have directed the father to name his wife and children as beneficiaries on the existing policy. That is not the question that the parties presented to the trial court, nor is it the question certified by the trial court for this Court. If it had been asked, we would have held that the power of the trial court to order an insured to name his children beneficiaries of a life insurance policy in a proper case is beyond question. This type of arrangement for the financial well-being of children is common in divorce courts in this state and has been so for many years. Any doubts that district courts have this power would certainly be laid to rest by the provisions of § 116. Ordering a divorce litigant to obtain and/or maintain a life insurance policy and to retain the children as beneficiaries is not the same thing, however, as ordering a lien placed on the proceeds of a pre-existing life insurance policy payable to another as beneficiary after the death of the insured. Child support obligations abate upon the death of the parent. Whitman v. Whitman, 430 P.2d 802 (Okla.1967). Any efforts to obtain satisfaction of the child support due and owing upon this defendant’s death would have to be brought against his estate in an action based on the reduction of the arrearage to judgment. While the obligation of a parent to support his or her child does not continue past death, it is certainly within the discretion and power of a trial court in a divorce action to order a parent to obtain and maintain life insurance policies and to direct that the children be named as the beneficiaries. While under proper facts the court could have ordered the father to name his children as beneficiaries of this policy when he was alive — no court, including this one, may take the proceeds from that policy to which the beneficiary has a vested right because of his death and order them given to the children. In its zeal to “do equity” in this certified interlocutory order action which is moot and should be dismissed, the majority annuls important concepts of constitutional rights, vested interests and insurance law. I am authorized to state that Chief Justice OPALA joins in the views expressed above. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9614091. Public record. Not legal advice.