MCKISSICK VS. MCKISSICK (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The court (Thompson, J.) resolved competing appeals concerning a constructive trust on life insurance proceeds and the character of a time certificate of deposit. As to the insurance, the 1964 property settlement obligated Howard to maintain a described $50,000 Equitable policy with his first wife as irrevocable beneficiary to secure the children's support and education; the description was a clerical error (no such policy existed) correctable at any time under NRCP 60(a). Marble v. Wright, 77 Nev. 244, 362 P.2d 265 (1961). The decree's requirement that Barbara be the irrevocable beneficiary constituted an equitable assignment; by designating his second wife Dorothy as beneficiary, Howard violated the agreement and decree, so Dorothy holds the proceeds in constructive trust for Barbara and the children. The court held the trust should not be limited to $50,000 (a figure that was part of the misdescription); Howard intended to secure his support obligation with the insurance he had, so Barbara and the children are entitled to the full $112,848.59, including the accidental-death increase, which belongs to the persons for whose benefit the insurance was carried. As to the $385,000 certificate issued to 'Howard F. McKissick, Jr., and/or Dorothy McKissick,' the court held it did not create a joint tenancy. NRS 111.065(2) requires that a joint tenancy in personal property be created by a written transfer, agreement, or instrument (Weinstein v. Sodaro, 91 Nev. 638, 541 P.2d 531 (1975)); the words 'or' or 'and/or' are insufficient (Newitt v. Dawe, 61 Nev. 472, 133 P.2d 918 (1943); In re Condos's Estate, 70 Nev. 271, 266 P.2d 404 (1954)), and the certificate was not 'in a form to be paid to the survivor' under NRS 663.015. The court rejected the dictum in Edmonds v. Perry that oral evidence of intent could supply the deficiency, holding joint tenancy in personalty may not be created orally, and rejected the source/tracing theory because the earlier real-property joint tenancy was destroyed when that property was sold. Presumptively community property under NRS 123.220 and 123.130, the certificate passes, on Howard's intestate death, to Dorothy as surviving spouse, but one-half is subject to administration and creditors' claims under NRS 123.250(1). Remanded for entry of judgment.

In plain language

Howard McKissick, Jr., divorced his first wife, Barbara, in 1964. Their property settlement agreement said Howard would keep a life insurance policy - described as a $50,000 Equitable policy - with Barbara as the irrevocable beneficiary, mainly to secure the future support and education of their four children. In fact, no such $50,000 Equitable policy existed; Howard actually had three policies totaling $40,000. Howard later remarried (to Dorothy), changed the beneficiary on his policies to Dorothy, and died in an accident in 1973 without a will. Accidental-death benefits raised the policies to $112,848.59, which Dorothy collected. Howard and Dorothy had also bought a $385,000 bank certificate of deposit titled to 'Howard F. McKissick, Jr., and/or Dorothy McKissick.' Barbara and the children sued Dorothy (who was also administratrix of Howard's estate). They won a judgment for accrued child support, which nobody appealed. The trial court also imposed a 'constructive trust' on the life insurance for the children's benefit but capped it at $50,000, and ruled the $385,000 CD passed to Dorothy automatically as a joint tenant. Both sides appealed the trust and the CD rulings. The Nevada Supreme Court made two key changes. First, on the life insurance, it held the constructive trust should NOT be capped at $50,000. The $50,000 figure was just part of the mistaken description of a nonexistent policy; what Howard clearly intended was to secure his children's support with the life insurance he actually had. By naming Dorothy instead of Barbara as beneficiary, Howard violated the agreement, so Dorothy holds all the proceeds - the full $112,848.59, including the accidental-death increase - in constructive trust for Barbara and the children. Second, on the certificate of deposit, the court held the words 'and/or' did NOT create a joint tenancy. Under Nevada law, a joint tenancy in personal property must be created by a written transfer, agreement, or instrument, and 'and/or' is not enough; oral testimony of Dorothy's intent could not cure the defect, and the fact that the money came from previously jointly held real estate did not help (that joint tenancy ended when the real estate was sold). Instead, the CD was presumptively community property, having been acquired during the marriage. Because Howard died intestate, the CD passes to Dorothy as surviving spouse, but one-half of it is subject to administration and creditors' claims. The case was sent back for entry of judgment accordingly.