Davis v. Davis

944 	275 NEBRASKA REPORTS
remaining assignments of error
[4] Our conclusion that Sudha, on behalf of Dana Partnership,
requested the replacement letter of credit be issued and that the
appellants are estopped from denying their obligation to reim-
burse the Bank, is dispositive of this appeal. An appellate court
is not obligated to engage in an analysis which is not needed
to adjudicate the controversy before it.6 Therefore, we need not
address the appellants’ remaining assignments of error.
CONCLUSION
We conclude the district court did not err in finding that the
Bank issued the replacement letter of credit pursuant to Dana
Partnership’s request and that the appellants, under the doctrine
of promissory estoppel, are precluded from denying their liability
for lack of a signature on the amendment to the promissory note.
Accordingly, the judgment of the district court is affirmed.
affirmeD.
6 Papillion Rural Fire Prot. Dist. v. City of Bellevue, 274 Neb. 214, 739
N.W.2d 162 (2007).
mary kay D avis , appellant , v . henry a. D avis , appellee .
750 N.W.2d 696
Filed June 20, 2008. 	No. S-07-529.
1. Judgments. A court has discretion to require reasonable security for an obli-
gor’s current or delinquent support obligations when compelling circumstances
require it.
2. Divorce: Judgments: Appeal and Error. An appellate court reviews a district
court’s postdissolution order regarding security for a support obligation de novo on
the record to determine whether the trial court has abused its discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court
bases its decision upon reasons that are untenable or unreasonable or if its action
is clearly against justice or conscience, reason, and evidence.
4. Judgments: Statutes: Appeal and Error. Questions of law and statutory interpre-
tation require an appellate court to reach a conclusion independent of the decision
made by the court below.
5. Insurance: Contracts. Neb. Rev. Stat. § 44-704 (Reissue 2004) specifically
requires adult insureds to consent to insurance policies on their lives unless they or
their spouses are the owners of the policies.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

6. Statutes: Legislature: Public Policy. It is the Legislature’s function through the
enactment of statutes to declare the state’s law and public policy.
7. Courts: Legislature. A court is not free to ignore a legislative requirement of
affirmative consent.
Appeal from the District Court for Douglas County: J. patriCk
mullen, Judge. Affirmed.
William G. Dittrick and Kirk S. Blecha, of Baird holm,
L.L.P., for appellant.
John S. Slowiaczek and Virginia A. Albers, of Lieben, Whitted,
houghton, Slowiaczek & Cavanagh, P.C., L.L.O., for appellee.
heaviCan, 	C.J., 	W right, 	C onnolly, 	gerrarD, 	stephan,
mCC ormaCk, and miller -lerman, JJ.
C onnolly, J.
SUMMARy
Appellant, Mary Kay Davis, appeals the district court’s order
denying her postdissolution motion. The motion requested an
order directing her former spouse, henry A. Davis, to submit to
a physical examination so she could obtain a $1 million insur-
ance policy on his life, naming herself as the beneficiary. She
alleged that if henry died, the policy was necessary as security
for his substantial alimony and child support obligations. We
conclude that Neb. Rev. Stat. § 44-704 (Reissue 2004) prohib-
ited the district court from granting Mary Kay’s request absent
henry’s consent to her ownership of an insurance policy on
his life.
BACKGROUND
parties D ismiss 2001 D issolution aCtion anD
enter into postmarital agreements
The parties’ marriage was dissolved in December 2006. They
had two children: a daughter, born in 1991, and a son, born in
1994. The parties have significant assets. They agreed to dismiss
their 2001 dissolution proceeding after entering into a postmari-
tal agreement, dividing their property for specific occurrences:
continuation of the marriage, death, legal separation, or divorce.
But in 2002, after Mary Kay sought a declaration that the
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946 	275 NEBRASKA REPORTS
postmarital agreement was invalid, they signed an amendment
to the postmarital agreement (collectively the agreements). In
the agreements, henry promised to transfer property to Mary
Kay and she agreed that his business interests would be his
separate property.
In paragraph XII of the amendment, henry agreed that upon
the dismissal of all pending litigation, he would execute the
henry A. Davis Irrevocable Trust, which was attached. he also
agreed to obtain a life insurance policy with a death benefit
of at least $1 million, naming the trust as the beneficiary. The
trust was for the benefit of the parties’ children. The trust also
required the trustee to pay the children’s legal guardian up to
$5,000 a month for reasonable household expenses, subject to
the trustee’s sole and absolute discretion. A trust provision stated
that henry had conveyed $10 to it but anticipated conveying
additional property.
After these agreements were made, the district court approved
them, dismissed Mary Kay’s declaratory judgment action with
prejudice, and dismissed the parties’ 2001 dissolution action
without prejudice.
2003 D issolution aCtion
In 2003, Mary Kay filed a second dissolution action. The dis-
trict court incorporated the parties’ postmarital agreements into
its December 2006 decree. Under those agreements, it ordered
henry (1) to pay $5,000 child support a month for both children
and $3,000 a month for one child and (2) to pay $12,500 ali-
mony a month for 106 months, to terminate upon either party’s
death or Mary Kay’s remarriage.
mary kay moves for orDer D ireCting henry to suBmit
to physiCal examination for insuranCe poliCy
Later, in March 2007, Mary Kay moved for an order directing
henry to submit to a physical medical examination so she could
obtain a life insurance policy on his life. At the hearing, Mary
Kay’s attorney argued that henry’s child support and alimony
obligations exceeded $1.5 million and that a policy on henry’s
life would protect her if he died. he further argued that there
was no proof that henry had funded the trust for the children.
But henry’s counsel argued that there was a $1 million policy

in place and that he had provided proof to Mary Kay during dis-
covery. The record does not show that the policy was offered.
The court stated that security for henry’s support obligations
was a matter that could have been anticipated when the parties
made the agreements; it overruled the motion.
ASSIGNMENT OF ERROR
Mary Kay assigns as error that the district court erred in
refusing to order henry to submit to a physical examination so
she could obtain an insurance policy on his life.
STANDARD OF REVIEW
[1,2] A court has discretion to require reasonable security
for an obligor’s current or delinquent support obligations when
compelling circumstances require it.1 We will review a district
court’s postdissolution order regarding security for a support
obligation de novo on the record to determine whether the trial
court has abused its discretion.2
[3,4] An abuse of discretion occurs when a trial court bases
its decision upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason, and
evidence.3 Questions of law and statutory interpretation require
us to reach a conclusion independent of the decision made by
the court below.4
ANALySIS
Mary Kay contends that she has an insurable interest in
henry’s life. She argues that the district court erred in failing to
require henry to secure his support obligations by submitting to
a physical examination so she could obtain an insurance policy
1 See, Neb. Rev. Stat. § 42-371(6) (Cum. Supp. 2006); Klinginsmith v.
Wichmann, 252 Neb. 889, 567 N.W.2d 172 (1997), citing Lacey v. Lacey,
215 Neb. 162, 337 N.W.2d 740 (1983).
2 See, Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007); Strunk v. Chromy-
Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006); Brockman v. Brockman, 264
Neb. 106, 646 N.W.2d 594 (2002); Klinginsmith, supra note 1; Lacey, supra
note 1.
3 See Schwartz v. Schwartz, ante p. 492, 747 N.W.2d 400 (2008).
4 Zahl, supra note 2.
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948 	275 NEBRASKA REPORTS
on his life. In her brief, she contends compelling circumstances
justified requiring security because henry’s total support obli-
gations exceeded $1.6 million. At oral argument, however, she
contended that she was not required to show compelling cir-
cumstances. She claims she is not asking henry to pay for the
insurance coverage or to do anything for security other than to
submit to a physical examination.
Initially, we clarify what this case is not about. We are not
dealing with a contempt proceeding. Mary Kay is not attempt-
ing to enforce the parties’ dissolution decree, which incorpo-
rated the parties’ agreement that henry would fund the trust
for their children through a life insurance policy. Instead of
seeking to compel henry to obtain insurance to fund the trust
for their children, Mary Kay is seeking to own a separate policy
on henry’s life to secure his support obligations. Thus, we
interpret her motion as primarily seeking security for henry’s
alimony obligations.
[5] We do not reach the issue of whether Mary Kay has
an insurable interest in henry’s life. We assume for this anal-
ysis that she does.5 But an insurable interest does not give her
the right to own a policy on henry’s life without his consent.
Section 44-704 specifically requires adult insureds to consent to
insurance policies on their lives unless they or their spouses are
the owners of the policies. Mary Kay is not henry’s spouse, and
henry would not be the owner of the policy.
Section 44-704, in relevant part, provides:
(1) Except as provided in subsection (2) of this section,
no policy of insurance shall be issued upon the person of
any individual except upon the application of the indi-
vidual insured or with the written consent of the individual
insured. Nothing in this section shall be deemed to prohibit
the immediate transfer or assignment of a life insurance
policy or annuity contract so issued.
(2) Notwithstanding the provisions of subsection (1) of
this section, (a) a husband or wife may effectuate a policy
of insurance upon the person of the other . . . .
5 See, Neb. Rev. Stat. § 44-103(13)(b) (Reissue 2004); 3 Lee R. Russ &
Thomas F. Segalla, Couch on Insurance 3d § 43:2 (2005).

(3) The term policy of insurance as used in this section
shall include any life insurance policy . . . .
(Emphasis supplied.)
In arguing that § 44-704 does not apply, Mary Kay relies on
cases in which a district court—as part of a dissolution decree—
ordered an obligor to maintain a life insurance policy as security
for a support obligation. But Mary Kay misses the critical dis-
tinction in these cases: The obligor, not the former spouse, was
the owner of the policy.6 These cases fail to support Mary Kay’s
contention that a district court can compel obligors to consent to
their former spouses’ owning policies on their lives.
[6] It is the Legislature’s function through the enactment of
statutes to declare the state’s law and public policy.7 Allowing
courts to compel an obligor’s consent to a former spouse’s
ownership of a policy on the obligor’s life would violate the
Legislature’s express policy preference in § 44-704.
The Maryland Court of Appeals addressed this public policy
issue in Hopkins v. Hopkins.8 Before the trial court issued its
decree, the wife in Hopkins asked her husband to cooperate in
obtaining a $1 million insurance policy on his life to insure her
alimony. The court later ordered him to pay her permanent ali-
mony of $4,000 per month, and she was purportedly concerned
about his health. She had agreed to pay the premiums and only
wanted him to submit to a physical examination for the cover-
age. When he refused to cooperate, she filed a motion to compel
his cooperation. The trial court overruled the motion.
On appeal, the Maryland Court of Appeals agreed that a former
spouse has an insurable interest in an indefinite support obliga-
tion that terminated upon either party’s death. But Maryland had
a statute similar to Nebraska’s § 44-704 requiring the insured’s
consent as a predicate to a valid life insurance contract. The
court stated that the consent requirement serves two purposes:
(1) It prevents wagering on human lives and (2) it protects
human lives by removing the temptations and risks associated
6 See, Shade v. Kirk, 227 Neb. 775, 420 N.W.2d 284 (1988); Trimble v.
Trimble, 218 Neb. 118, 352 N.W.2d 599 (1984).
7 See Hogelin v. City of Columbus, 274 Neb. 453, 741 N.W.2d 617 (2007).
8 Hopkins v. Hopkins, 328 Md. 263, 614 A.2d 96 (1992).
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950 	275 NEBRASKA REPORTS
with other persons’ having an interest in both the insured’s life
and death. “Policies issued in violation of this rule ‘are not
dangerous because they are illegal: they are illegal because they
are dangerous.’”9 The court noted that for these reasons, courts
in states with similar statutes have held that permitting a person
to insure the life of another without that person’s knowledge or
consent is against public policy. It concluded:
A court order requiring the proposed insured to cooper-
ate with the efforts of a party with an insurable interest to
obtain a policy of insurance on his life can not [sic] effect
the consent contemplated by [the statute]. Cooperating,
pursuant to a court order enforceable by contempt, with
the appellant’s efforts to obtain a policy of insurance on his
life, is not the appellee’s voluntary act. On the contrary, it
is, by its very nature and by definition, coercive.10
[7] We agree with this reasoning. We recognize that courts
often compel parties in a marital dissolution action to perform
acts that would otherwise require their consent. But a court
is not free to ignore a legislative requirement of affirmative
consent.11 Aside from the consent issue, and although we do
not rely on privacy concerns in our analysis, another court has
concluded that a state court order compelling an obligor to
comply with a physical examination would violate his right of
privacy.12 We conclude the district court did not err in overruling
Mary Kay’s motion.
CONCLUSION
We conclude that the district court did not have authority to
compel henry to complete a physical examination so Mary Kay
could obtain a life insurance policy on his life, naming herself
9 Id. at 272, 614 A.2d at 100.
10 Id. at 275, 614 A.2d at 102.
11 See, e.g., In re Adoption of Kassandra B. & Nicholas B., 248 Neb. 912, 540
N.W.2d 554 (1995); Douglas County v. Keller, 43 Neb. 635, 62 N.W. 60
(1895). See, also, Metters v. Ralphs Grocery Co., 161 Cal. App. 4th 696, 74
Cal. Rptr. 3d 210 (2008); Grove v. Northeast Ohio Nephrology Assoc., 164
Ohio App. 3d 829, 844 N.E.2d 400 (2005).
12 Meerwarth v. Meerwarth, 128 N.J. Super. 285, 319 A.2d 779 (1974).

as the beneficiary. Such an order would have violated this state’s
public policy of requiring an insured’s consent to a policy on his
or her life. Although public policy concerns were not the reason
the district court overruled Mary Kay’s motion to compel henry
to submit to a physical examination, a proper result will not be
reversed merely because it was reached for a different reason.13
The district court’s order is affirmed.
affirmeD.
13 In re Trust Created by Cease, 267 Neb. 753, 677 N.W.2d 495 (2004).
DAVIS v. DAVIS 	951
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