IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 88,765
ARTHUR E. NICHOLAS, Executor of the Estate of
Sheryl A. Nicholas, Deceased,
Appellant,
v.
RUBY E. NICHOLAS,
Appellee,
and
SHERYL A. NICHOLAS,
v.
RUBY E. NICHOLAS.
SYLLABUS BY THE COURT
1. Under the facts of this case, a party to a divorce action did not dispose of marital property by changing or designating beneficiaries on pay on death and transfer on death accounts or on a life insurance policy and did not violate a restraining order issued pursuant to K.S.A. 2002 Supp. 60-1607(a)(1) which did not specifically restrict such action.
2. Under the facts of this case, a joint tenant did not sever tenancy by (1) executing a will because the other tenant did not consent to the will or execute a mutual and contractual will; (2) creating a revocable trust because the trust exempted joint tenancy property; (3) changing the beneficiaries on accounts which were not held in joint tenancy; (4) filing a motion to sever the joint tenancies because the motion was not prosecuted to judgment; (5) negotiating and executing a property settlement agreement because the agreement was not executed by the other tenant; and (6) making repeated statements showing intent to sever tenancy because the tenant failed to take action to accomplish that intent.
3. An invasion of privacy action for intrusion upon seclusion does not survive the death of the plaintiff.
Review of the judgment of the Court of Appeals in 31 Kan. App. 2d 457, 66 P.3d 929 (2003). Appeal from Allen district court; DANIEL D. CREITZ and JOHN W. WHITE, judges. Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part and reversed in part and remanded. Opinion filed January 30, 2004.
J. Eugene Balloun, of Shook, Hardy & Bacon, L.L.P., of Overland Park, argued the cause, and Celia K. Garrett, Kirsten Ehlen, and Brenda R. Mesker, of the same firm, and John R. Toland, of Toland & Thompson, L.L.C., of Iola, were with him on the briefs for appellant.
Ted E. Knopp, of Ted E. Knopp, Chtd., of Wichita, argued the cause, and Charles H. Apt, III, of Apt & Apt, L.L.P., of Iola, was with him on the briefs for appellee.
The opinion was delivered by
LUCKERT, J.: Ruby Nicholas filed for divorce from Sheryl Nicholas and obtained an ex parte temporary restraining order prohibiting either party from disposing of assets. Knowing he was terminally ill, Sheryl created a new will, changed the beneficiary on his life insurance policy, made pay on death (POD) and transfer on death (TOD) designations on several accounts, and attempted to unilaterally sever joint tenancies. He also sued Ruby for invasion of privacy and trespass, alleging that she broke into his home and removed documents and financial records. Sheryl died 2 days before the divorce trial date.
Sheryl's executor filed suit against Ruby and, in an amended answer, she asserted claims against those named as beneficiaries on the accounts and insurance. The district court granted summary judgment in favor of Ruby, ruling that Sheryl's actions had violated the temporary restraining order and that titles to the accounts should remain as they existed at the time the restraining order was issued. The district court also ruled that the invasion of privacy action did not survive. On appeal, a majority of the Court of Appeals panel affirmed. This court granted the executor's petition for review.
The parties have not contested the Court of Appeals' rendition of the facts, which was largely based upon stipulations of the parties. As the Court of Appeals recited, on May 9, 2000, after more than 25 years of marriage and approximately 2 years of living separately, Ruby Nicholas filed for divorce from Sheryl Nicholas. Ruby obtained an ex parte temporary restraining order prohibiting either party from disposing of any asset of the parties "except in the normal course of business." Knowing that he was terminally ill, on July 18, 2000, Sheryl executed a will devising all of his property in equal shares to his children from a previous marriage, Arthur E. Nicholas and Susan A. Johnson, and naming Arthur as executor of his estate. During July 2000, Sheryl also executed a transfer on death (TOD) form designating Arthur and Susan as beneficiaries of his Van Kampen funds, a TOD form naming Arthur and Susan as beneficiaries of an Edward Jones account, and a pay on death (POD) form naming Arthur as beneficiary of a checking account at the Iola Bank and Trust Company (Iola Bank). In August 2000, Sheryl changed the primary beneficiary of his Ameritas life insurance policy from Ruby to Arthur.
Sheryl then filed a cross-petition for divorce and a motion for an emergency divorce. He later filed a motion to sever the joint tenancy property he owned with Ruby. Finally, he sued Ruby for invasion of privacy and trespass, alleging that Ruby broke into his home and removed documents and financial records. Sheryl demanded the return of the documents and sued for damages in excess of $50,000.
The district court denied Sheryl's motion for an emergency divorce but granted his motions to file a cross-petition for divorce and to modify the restraining order. At the hearing, Sheryl's counsel reserved argument on the motion to sever the joint tenancies. Trial was set for October 3, 2000.
Meanwhile, the parties attempted to negotiate a settlement agreement. On September 27, 2000, Sheryl executed a property settlement and separation agreement which he believed was consistent with the terms of a previous offer made by Ruby. On September 29, 2000, Sheryl executed a revocable trust funded with all of his personal property and certain real property, with Arthur and Susan as equal beneficiaries.
Sheryl died on October 1, 2000, 2 days before the divorce trial date. Sheryl's will was admitted to probate on December 11, 2000, after Ruby withdrew her objections. Arthur, as executor of Sheryl's estate, filed suit against Ruby seeking delivery of one-half of the joint tenancy property and alleging that she had breached the settlement agreement by refusing to release that property. In her answer, Ruby acknowledged the existence of Sheryl's new will; however, she argued that most of the marital property was held in joint tenancy with right of survivorship and denied that Sheryl's actions succeeded in terminating their joint tenancies. Ruby also responded that she had neither approved nor executed the settlement agreement.
On April 13, 2001, Ruby filed an application to amend her answer and join Arthur and Susan as additional parties to the action. Ruby's amended answer stated a counterclaim and cross-claim against Arthur as executor and against Arthur and Susan as individuals. Ruby alleged that Sheryl's attempts to sever joint tenancy interests and his changing or naming beneficiaries on accounts and his life insurance policy violated the restraining order and were fraudulent under K.S.A. 33-201 et seq., the Kansas Uniform Fraudulent Transfer Act. Ruby asked the district court to impose a constructive trust on those funds transferred by Sheryl "outside the normal course of business" to Arthur and Susan in violation of the restraining order.
Arthur opposed Ruby's motion, responding that the district court did not have personal jurisdiction over Susan or himself, as individuals. He argued that the district court did not have subject matter jurisdiction over the Van Kampen funds, the Edward Jones account, or the Ameritas life insurance policy because the funds were situated and paid from locations outside of Kansas to parties residing outside of Kansas. The Iola Bank checking account was in the possession of the special administrator and had not been disbursed. Further, Arthur maintained that Ruby claimed these four accounts in ongoing probate proceedings. There is no indication in the record that a hearing was held to address Ruby's motion.
Both parties filed motions for summary judgment on their respective claims. Ruby argued that Sheryl's actions did not sever the joint tenancies; Sheryl violated the restraining order when he made POD and TOD designations for the Van Kampen funds, the Iola Bank checking account, and the Edward Jones account; Sheryl further violated the restraining order by changing the beneficiary of his Ameritas life insurance policy; the proposed settlement agreement did not bind the parties because Ruby did not sign or execute it and, without her signature, the agreement violated the homestead laws of Kansas and the statute of frauds; and Sheryl's invasion of privacy claim did not survive his death.
Arthur's motion for summary judgment argued that the restraining order did not prohibit severance of the parties' joint tenancies; Sheryl acted properly in changing or designating beneficiaries on his life insurance policy and the various accounts at issue; the settlement agreement signed and executed by Sheryl was binding on the parties; and Sheryl's invasion of privacy claim survived his death.
On February 15, 2002, the parties signed a stipulation as to the joint or several ownership of Ruby and Sheryl's personal and real property as of the date of Sheryl's death. The stipulation indicates that the Edward Jones account and Iola Bank account were titled solely in Sheryl's name and that Sheryl was the policy holder on his Ameritas life insurance policy. The parties continue to dispute whether the Van Kampen funds were the sole property of Sheryl or were held jointly with Ruby.
In its March 14, 2002, order, the district court granted summary judgment in favor of Ruby, ruling: (1) Titles to the accounts should remain as they existed when the court issued the restraining order on May 9, 2000; (2) the settlement agreement did not bind the parties because it had not been agreed to by Ruby or approved by the court prior to Sheryl's death, which abated the divorce proceeding; and (3) Sheryl's invasion of privacy claim did not survive his death. Arthur timely appealed.
The Court of Appeals described the remaining procedural history of the case as follows:
"After deciding issues dispositive of Arthur's suit and Sheryl's invasion of privacy claim, the district court issued an order consolidating those two cases.
"Arthur filed a temporary restraining order on April 1, 2002. The district court issued its order on July 1, 2002, initially dissolving all prior restraints on the property. However, the order indicated that Ruby was restrained from 'gifting or spending one-half of the joint tenants' personal property.' Ruby was allowed to make estate plans and testamentary dispositions. Arthur was instructed to post a supersedeas bond in the amount of $152,674 to cover 125 percent of the value of the Ameritas life insurance policy and the Van Kampen fund which were at the disposal of Arthur or Susan.
"On July 15, 2002, Arthur filed a motion with this court to modify the July 1, 2002, stay of enforcement of the judgment entered by the district court. This court instructed the district court to hold a hearing for the limited purpose of determining: (1) whether an accounting of assets should be ordered; (2) whether property should be redistributed to restore the parties' interests; and (3) which measures, if any, should be taken to protect those interests during the pendency of the appeal. A hearing was held on August 29, 2002. The parties were unable to agree on a journal entry and the case was reset for a hearing on November 6, 2002.
"On November 7, 2002, the district court issued its order listing certain assets to be restrained from any direct or indirect acts intended to liquidate, retitle, transfer, or remove them from the jurisdiction of the court.
"In addition, the district court denied Arthur's request for restoration of Sheryl's one-half interest in the joint tenancy property. Counsel for the parties were ordered to immediately provide a copy of the district court's order to all entities and individuals to ensure that the orders concerned with the restrained property are followed." Nicholas v. Nicholas, 31 Kan. App. 2d 457, 462-63, 66 P.3d 929 (2003).
On appeal, a majority of the Court of Appeals panel affirmed the district court. Nicholas, 31 Kan. App. 2d at 459. In finding that Sheryl's actions violated the restraining order, the majority held: "A restraining order that restrains divorcing parties from disposing of any asset except in the normal course of business, restrains the parties from changing (1) beneficiary designations on insurance policies; (2) joint tenancies to tenants in common; (3) transfer on death designations; or (4) pay on death designations." 31 Kan. App. 2d at 465-66. Chief Judge Rulon concurred in part and dissented in part, stating that Ruby's claims against Arthur and Susan were not properly before the court because the trial court never ruled on Ruby's motion to amend her answer. Furthermore, according to Chief Judge Rulon, because Susan and Arthur were never properly made parties to the case, it violated due process for the trial court to issue an order altering title to property now held by them as nonparties. 31 Kan. App. 2d at 475-77.
Standard of Review
This court's standard in reviewing summary judgment has been frequently stated:
"'Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.' [Citation omitted.]" Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).
In this case, the material facts are not in dispute. Rather, it is the legal conclusions of the trial court and the Court of Appeals that are at issue. Our review of conclusions of law is unlimited. Wear v. Mizell, 263 Kan. 175, 177, 946 P.2d 1363 (1997).
Did the Trial Court and Court of Appeals Err in Ruling That Transfers Made Contingent Upon One Spouse's Death Dispose of Marital Assets in Violation of a Restraining Order Issued Pursuant to K.S.A. 2002 Supp. 60-1607?
Resolution of this case requires a determination of the effect of the restraining order and the statute authorizing the order, K.S.A. 2002 Supp. 60-1607(a)(1). The order provided that "neither party shall dispose of any asset of the parties except in the normal course of business." K.S.A. 2002 Supp. 60-1607(a)(1) authorizes the trial court to issue an interlocutory order after the filing of divorce to "[j]ointly restrain the parties with regard to disposition of the property of the parties and provide for the use, occupancy, management and control of that property."
Arthur, as executor of Sheryl's estate, first argues that the restraining order did not cover the accounts held in Sheryl's name only and the life insurance for which he was the policyholder and owner. The Court of Appeals noted that, pursuant to K.S.A. 2002 Supp. 23-201(b), all property owned at the commencement of a divorce action becomes marital property regardless of how it is titled and each spouse has a vested interest in the property, the extent of which must be determined and finalized by the court. Nicholas, 31 Kan. App. 2d at 465. Arthur asks this court to reject that view, arguing that K.S.A. 2002 Supp. 23-201(b) only creates a common ownership right in marital property "at the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate maintenance, or annulment." (Emphasis added.) Because no final decree was entered in this case, Arthur contends the statute does not apply. This argument ignores the fact that the restraining order, which was in effect pursuant to K.S.A. 2002 Supp. 60-1607, jointly restrained the parties from disposing of any asset of the parties. Further, as stated in Cady v. Cady, 224 Kan. 339, 581 P.2d 358 (1978):
"The filing for divorce, however, has a substantial effect upon the property rights of the spouses. At that moment each spouse becomes the owner of a vested, but undetermined, interest in all the property individually or jointly held. The court is obligated to divide the property in a just and equitable manner, regardless of the title or origin of the property. [Citations omitted.]
"We hold that the filing of a petition for divorce or separate maintenance creates a species of common or co-ownership in one spouse in the jointly acquired property held by the other, the extent of which is determined by the trial court pursuant to K.S.A. 1972 Supp. 60-1610(b). Except for those rights which vest by virtue of the filing of the divorce action, we in no way change the interest of one spouse in the property held by the other, or in the ability of the other spouse to convey, sell or give away such property. " 224 Kan. at 344.
Applying this analysis, this court in Wear held that, under the facts of the case, life insurance "policies and the right to receive the insurance proceeds upon the death of the insured are marital property within the meaning of K.S.A. 23-201(b)." 263 Kan. at 179. Also, by operation of K.S.A. 2002 Supp. 23-201(b), the various bank and money market accounts at issue were within the marital estate for the purpose of dividing assets at the time of the divorce.
Next, Arthur, acting as executor of Sheryl's estate, cites the common definition of "dispose" and authority from other states to support his argument that Sheryl did not violate the restraining order because he did not "dispose" of any property. The Court of Appeals rejected this argument and concluded: "Even though the actual transfer would not take place until death, these items had value at the time the changes were made and such transfers affect the value of the marital estate. . . . The marital estate was diminished in value by these changes." Nicholas, 31 Kan. App. 2d at 470. The court also noted that K.S.A. 2002 Supp. 23-201(b) states that marital property is all property "owned" by the parties and "ownership" is defined to include the right to convey property to others. 31 Kan. App. 2d at 470.
Ruby, in asking us to affirm the Court of Appeals, and Arthur, in asking us to reverse the lower courts, quote portions of our decision in Wear as support for their positions. In Wear, William and Arilla Wear purchased two life insurance policies for Arilla naming William as beneficiary. After filing for divorce, Arilla changed the beneficiary on both policies from William to her parents. Arilla was killed in a car accident before the divorce was finalized. No restraining order was issued as part of the divorce proceedings. The trial court ruled that William was not entitled to equitable relief and this court affirmed. The Wear court also noted that there was no restraining order, no property settlement agreement, and no divorce decree. The divorce action abated at Arilla's death. 263 Kan. at 180. And, where there is no divorce, there is no division of property. 263 Kan. at 184.
The Wear court recognized that the issue presented in this case, whether a standard restraining order prohibits a beneficiary change, has not been ruled upon in Kansas. Wear only held that where there was no restraining order at all, there was no prohibition against a change of beneficiary.
The Wear court noted William's reliance on Willoughby v. Willoughby, 758 F. Supp. 646 (D. Kan. 1990), a case involving similar facts, but found that case to be distinguishable. In Willoughby, the court held that a standard restraining order issued in a divorce prevented the husband from changing beneficiaries on his life insurance policy. This court stated: "The heart of the Willoughby decision is the finding that the beneficiary change violated the restraining order. All of the cases from other jurisdictions relied upon in Willoughby involved beneficiary changes that violated restraining orders or decrees." 263 Kan. at 182.
The Wear court noted that Willoughby involved a general restraining order while some cases from other jurisdictions involved restraining orders that expressly mentioned life insurance policies. The court noted the split of opinion in various jurisdictions as described in Annot., Divorce and Separation: Effect of Court Order Prohibiting Sale or Transfer of Property on Party's Right to Change Beneficiary of Insurance Policy, 68 A.L.R.4th 929, § 3. The court also quoted 4 Couch on Insurance 3d § 64.20 (1996):
"'A temporary restraining order or injunction obtained in order to prevent an insured spouse from transferring property during pendency of divorce proceedings may also preclude the insured from changing beneficiary during pendency of suit, notwithstanding that no precise reference was made to life insurance policies. Any such temporary order is effective only as to actions taken after the order is made, and cannot invalidate the insured's prior change of beneficiary in accordance with the rights and procedures under the policy terms.'" 263 Kan. at 182.
However, the Wear court stated: "The better practice is to specifically reference a prohibition against a beneficiary change in a marital property restraining order." 263 Kan. at 181. Ruby and the Court of Appeals rely upon this statement to mean that an order specifically mentioning change of beneficiaries is not necessary.
Arthur particularly relies upon the concluding sentence of Wear, which states: "Absent entry of a K.S.A. 60-1607 order restraining the parties from changing beneficiaries on life insurance policies, K.S.A. 23-201(b) imposes no restrictions on either party from making such changes during the pendency of the divorce." 263 Kan. at 184. Arthur argues that this language means that a general restraining order does not prohibit the action he took and that to prevent a change of or designation of beneficiaries, one must seek a specific order.
Additionally, Arthur notes that many, if not most, of the out-of-state cases which have considered the issue have upheld beneficiary changes made while a general restraining order was in effect during the pendency of a divorce. See Gorman-English v. Estate of English, 849 P.2d 840, 843 (Colo. App. 1992) (change of beneficiary designation on life insurance policy not a conveyance or disposal of marital assets in violation of preliminary injunction; only cash surrender value of policy was frozen by injunction). Gleed v. Noon, 415 Mass. 498, 500-01, 614 N.E.2d 676 (1993) (change of life insurance beneficiary not a conveyance, transfer, or disposal of proceeds; no violation of temporary restraining order); Bell v. Bell, 896 S.W.2d 559, 562, 565 (Tenn. App. 1994) (wife as prior beneficiary had mere expectancy in decedent's life insurance policies; restraining order entered in divorce proceedings did not prohibit beneficiary change); Lindsey v. Lindsey, 342 Pa. Super. 72, 79, 492 A.2d 396 (1985) (change of beneficiary designation on life insurance policy not a conveyance or disposal of marital assets in violation of preliminary injunction; only cash surrender value of policy was frozen by injunction).
In a variation on these cases, some courts have held that, even if the beneficiary change violated a restraining order, imposition of a constructive trust is not warranted absent some kind of unconscionable or wrongful conduct. E.g., Wilharms v. Wilharms, 93 Wis. 2d 671, 679-80, 287 N.W.2d 779 (1980) (temporary restraining order did not specifically mention insurance policy and husband may have thought he was acting properly in changing beneficiary; "[e]ven so, if it can be shown that he changed beneficiaries in the policies in order to defraud, or otherwise unconscionably deprive his wife of the policy proceeds, then his actions may warrant the imposition of a constructive trust"); Balfany v. Balfany, 239 Neb. 391, 398, 476 N.W.2d 681 (1991) ("violation of a restraining order, standing alone, is insufficient for imposition of a constructive trust on property which is subject to the restraining order").
On this issue, the United States District Court of Kansas has stated:
"[T]he court does not believe that Kansas has or would adopt a rule that an insured's act of changing a beneficiary while subject to a temporary restraining order restraining the parties to a divorce action from selling, encumbering or disposing of the parties' property, automatically results in the voidance of the insured's change in the designation of the beneficiary." Pope v. Cauffman, 885 F. Supp. 1451, 1456 (D. Kan. 1995).
In addition to these decisions dealing with life insurance, there are decisions addressing designations on POD and TOD accounts. E.g., Estate of Westfall v. Westfall, 942 P.2d 1227, 1230 (Colo. App. 1996) (wife's designation of brother as POD beneficiary not a violation of restraining order).
To analyze which line of authority is most persuasive requires examination of the role and purpose of the restraining order. In Wear it was stated that the purpose of the restraining order is to preserve the "status quo between the divorcing parties as to marital property." 263 Kan. at 179. The restraining order serves the short-term need of resolving disputes regarding use and control of property while the divorce is pending and the long-term goal of maintaining the court's adjudicatory control over the property. The purpose of the latter goal is to preserve the marital estate until the court enters the final property division. To accomplish this goal, K.S.A. 2002 Supp. 60-1607(a)(1) allows the court to enter an order which (1) prohibits disposing of property and (2) provides for the use, occupancy, management, and control of the property. However, there is no automatic freezing of assets; rather, the specifics of the order control. The order may prohibit the parties from disposing of assets or allow disposition under certain terms, such as the order in this case which allowed the parties to dispose of assets in the normal course of business. The order may also specify certain terms regarding the use, management, occupancy, or control of property.
Within the context of estate planning, other courts have recognized that the purpose of statutes such as K.S.A. 2002 Supp. 60-1607(a)(1) is not to "freeze each party's estate plan as of the date of the filing" of the divorce action, rather it "is to forbid actions by either party that would dissipate the property of the marital estate or place it beyond the court's adjudicatory power in the dissolution proceeding." Lonergan v. Strom, 145 Ariz. 195, 200, 700 P.2d 893 (Ct. App. 1985). See Benson v. District Court, 57 Idaho 85, 91-92, 62 P.2d 108 (1936); Girardi v. Girardi, 140 App. Div. 2d 486, 487, 528 N.Y.S.2d 397 (1988); Lindsey v. Lindsey, 342 Pa. Super. 72, 76, 492 A.2d 396 (1985); Dyer v. Dyer, 87 S.W.2d 489, 490 (Tex. Civ. App. 1935); In re Knickerbocker, 912 P.2d 969, 976 (Utah 1996).
In this case, the restraining order did not limit the use or control of the property in question, at least in a way which affects the issues in this case. Thus, the question is whether Sheryl's actions disposed of the property. An appropriate test for this determination is that recognized in the above-cited cases: whether the action affected the value of the marital estate or placed the property outside the adjudicatory power of the court. Sheryl's action did not change the value of the marital estate and did not do anything that would prevent the court from having power over the property for purposes of property division.
Ruby, like William in the Wear case, had no vested interest in the insurance policy because "'[a] beneficiary has only an inchoate right to the proceeds of a policy, subject to being divested at any time during the lifetime of the insured, by transfer, assignment, or change of beneficiary.'" 263 Kan. at 178 (quoting Hollaway v. Selvidge, 219 Kan. 345, 349, 548 P.2d 835 [1976]). Had Ruby and Sheryl not been parties in an action for divorce, Sheryl could have changed the beneficiary designation. The same is true of the POD and TOD accounts. K.S.A. 2002 Supp. 9-1215 provides that the owner of a POD bank account retains the right "to change the designation of beneficiary" and also specifies that the "interest of the beneficiary shall be considered not to vest until the death of the owner." A TOD or POD designation on a security "has no effect on ownership until the owner's death" and a registration of a security in beneficiary form may be canceled or changed at any time without the beneficiary's consent. K.S.A. 17-49a06. Contrary to the Court of Appeals' conclusion, when Ruby filed for divorce, K.S.A. 2002 Supp. 23-201(b) did not change Sheryl's ability to convey or give away property. See Cady, 224 Kan. at 344. That is why a restraining order is necessary under K.S.A. 2002 Supp. 60-1607(a)(1) to prevent the disposal of property.
Furthermore, had the divorce been granted before Sheryl's death, Ruby's interest in the property and its value to the estate remained within the adjudicatory power of the court. Pursuant to K.S.A. 2002 Supp. 60-1610(b)(1), the district court would have had the power to divide the property, including granting the cash value or appropriate balances to Ruby, or to order Sheryl to change the beneficiary designations he had previously made. The statute provides:
"The decree shall divide the real and personal property of the parties, including any retirement and pension plans, whether owned by either spouse prior to marriage, acquired by either spouse in the spouse's own right after marriage or acquired by the spouses joint effo