S057373, Opinion — Tupper v. Roan

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Argued and submitted January 8, decision of Court of Appeals reversed;
judgment of circuit court reversed, and case remanded to circuit court
for further proceedings November 12, 2010

Heather TUPPER,
Petitioner on Review,
v.
Danette ROAN,
Respondent on Review.
Danette ROAN,
Third-Party Plaintiff,
v.
Alan Claude TUPPER,
as Personal Representative of
the Estate of Jerry Alan Tupper,
Deceased,
Third-Party Defendant.
(CC CV0610-0435; CA A136095; SC S057373)
243 P3d 50

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CJS, Judgments § 249.

En Banc

On review from the Court of Appeals .*

Matthew Whitman, of Cartwright & Associates,
Portland, argued the cause and filed the brief for petitioner
on review. With him on the brief was James R. Cartwright.

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Michael J. Morris, of Bennett, Hartman, Morris &
Kaplan LLP, Portland, argued the cause and filed the briefs
for respondent on review. With him on the briefs was Heidi
K. Brown.

GILLETTE, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

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# GILLETTE, J.

This is a dispute over the proceeds of a life insurance
policy. Plaintiff claimed an interest in the policy proceeds
because she had been married to the decedent at one time
and, when she and decedent divorced, their dissolution
decree required the decedent to maintain a $100,000 life
insurance policy naming her beneficiary, as trustee for a
child of the marriage. The decedent had not purchased the
required policy at the time the dissolution decree became
final, but he later did purchase the policy at issue-a
$600,000 life insurance policy naming defendant (not plain-
tiff) as the sole beneficiary. The decedent died while that pol-
icy was in force and defendant collected the proceeds. Plain-
tiff filed the present action against defendant, seeking
imposition of a constructive trust on $100,000 of the insur-
ance proceeds and alleging theories of unjust enrichment and
"money had and received." On cross motions for summary
judgment, the trial court held that $100,000 of the insurance
proceeds was subject to a constructive trust. Defendant
appealed, and the Court of Appeals reversed, holding that the
trial court should instead have awarded summary judgment
to defendant. Tupper v. Roan, 227 Or App 391, 206 P3d 237
(2009). We allowed plaintiff's petition for review and now
hold that, for the reasons that follow, neither defendant nor
plaintiff was entitled to summary judgment. Accordingly, we
reverse the decision of the Court of Appeals and the judgment
of the trial court, and remand the case for further
proceedings.

Plaintiff and the decedent, Jerry Tupper (Tupper),
divorced in 2004. The dissolution decree and judgment incor-
porated the parties' settlement agreement. The decree
awarded custody of the couple's child to plaintiff, with visi-
tation rights to Tupper, and required Tupper to pay an
amount of child support to plaintiff. In an apparent effort to
ensure that each party would have the financial means to
support the child in the event of the other party's death, the
decree and judgment provided:

"(A) So long as either party has a legal obligation to
support any child of the parties, each party shall maintain
an insurance policy insuring his or her life in an amount of

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not less than $100,000, naming the other parent as trustee
on behalf of any supported child.

"(B) The obligation to maintain this insurance shall
continue so long as either party has a duty to pay child sup-
port as decreed by the court, or an arrearage exists for
accrued but unpaid support.

"(C) The following provisions relate to procedural
aspects of the requirement to maintain insurance:

"(1) During the term of the obligation to maintain
insurance each party shall furnish to the other, upon
request, a copy of the policy or evidence the proper life
insurance is in force with the appropriate beneficiary des-
ignation in effect.

"(2) A constructive trust shall be imposed over the pro-
ceeds of any insurance owned by either party at the time of
either party's death if either party fails to maintain insur-
ance in said amount, or if said insurance is in force but
another beneficiary is designated to receive said funds. The
trustee shall make distribution as described herein."

Although the life insurance obligation was expressed in
terms of "maintaining" rather than "purchasing" the
described policy, it appears that Tupper did not own life
insurance of any kind at the time of the dissolution. Neither
did Tupper purchase life insurance immediately thereafter.

Tupper did obtain life insurance in February 2006,
some two years after the dissolution. At that time, he pur-
chased the policy that is at issue in this case-a $600,000
United of Omaha policy naming defendant, who was
Tupper's girlfriend, as the sole beneficiary. At the time of
that insurance purchase, Tupper and defendant were living
together and had started a business that generated only
enough income to pay Tupper. According to defendant, the
policy was entirely her idea and was obtained through her
efforts "as security for my funds advanced [to the business]
and my dependency and loss of compensation during our
relationship." Tupper, however, was listed as the owner of
the policy and the premiums were debited from his personal
bank account.

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A few months after Tupper purchased the policy, he
died in an accident, and United of Omaha distributed the pol-
icy proceeds in a lump sum to defendant. When it became
apparent that Tupper had no other life insurance and, thus,
had died in breach of the insurance requirement in the dis-
solution decree, plaintiff filed the present action against
defendant. In her complaint, plaintiff alleged that (1) Tupper
had been party to a dissolution judgment that required him
to maintain a $100,000 life insurance policy naming plaintiff
as beneficiary (as trustee for the child); (2) the dissolution
judgment provided for imposition of a constructive trust on
any life insurance policy that Tupper owned when he died, if
he died in breach of the life insurance requirement; (3) Tupper
had died in breach of that requirement; (4) when he died,
Tupper owned a $600,000 life insurance policy that named
defendant as the beneficiary; and (5) defendant was aware of
Tupper's insurance obligations to plaintiff at the time that
the policy was purchased. Plaintiff sought to collect $100,000
from defendant, either by imposing a constructive trust on
defendant's insurance proceeds to prevent "unjust enrich-
ment" or as damages payable on a claim for "money had and
received."

In her answer to plaintiff's complaint, defendant
specifically denied that she had any previous knowledge of
Tupper's obligation under the dissolution decree. Defendant
also asserted a number of affirmative defenses, including an
allegation that Tupper's estate, and not she, was responsible
for any liability arising from Tupper's breach of his obligation
under the decree.1

Plaintiff moved for summary judgment, arguing
that there was no issue of material fact with respect to the
terms in the divorce decree, Tupper's breach, Tupper's own-
ership of United of Omaha policy, or the constructive trust
remedy that the divorce decree provided. Plaintiff acknowl-
edged that, in two cases that involved similar facts,2 the

` Consistent with that theory, defendant asserted a third-party complaint
against the personal representative of Tupper's estate, claiming reimbursement
for any amounts plaintiff might recover out of the insurance proceeds.

2 The cases are Oregon Pacific State Ins. Co. v. Jackson, 162 Or App 654, 986
P2d 650 (1999), and McDonald v. McDonald, 57 Or App 6, 643 P2d 1280 (1982).

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Court of Appeals had decided against imposing constructive
trusts on the proceeds of the life insurance policies at issue.
She argued, however, that those cases were distinguishable
because the dissolution decrees in those cases had not speci-
fied that a constructive trust would be imposed on any life
insurance policy that the relevant party owned. She claimed
that, in her own dissolution decree, the inclusion of a term
specifying that remedy gave her an immediate equitable
interest in the proceeds of "any" life insurance that Tupper
might purchase. She claimed, moreover, that that equitable
interest was superior to any attempt on Tupper's part to des-
ignate a different beneficiary.

Plaintiff submitted a number of affidavits in support
of her motion for summary judgment: (1) her own declaration
stating that, in a conversation with defendant that occurred
shortly after Tupper died, defendant had acknowledged that
she knew about Tupper's life insurance obligation and had
told her that Tupper's children3 would be "taken care of";
(2) Tupper's father's declaration stating that, in a conversa-
tion between defendant, himself, his wife, and several others
that occurred shortly after Tupper's death, defendant had
stated that Tupper had wanted $100,000 of the proceeds of
the life insurance to go to each of his children; and
(3) Tupper's stepmother's declaration, reporting the same
conversation.

Defendant opposed plaintiff's motion for summary
judgment, arguing that plaintiff was required, and failed, to
show that defendant had had notice of Tupper's obligation
when the United of Omaha policy was purchased. Defendant
also argued that, because she was not a party to the divorce
decree, she could not be bound by its terms, including the
term that provided for imposition of a constructive trust on
any life insurance policy owned by Tupper if he died in breach
of the life insurance requirement.

Defendant also moved for summary judgment. She
argued that, to succeed on either of her claims, plaintiff must
show that she had some legally protected right or interest in

3 Tupper had another child by a previous wife.

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the policy in question. Defendant argued that, because plain-
tiff had never been named as a beneficiary of the $600,000
United of Omaha policy (and, in fact, the policy had not
existed at the time of plaintiff's divorce from Tupper), plain-
tiff could not make the required showing.

After a hearing, the trial court denied defendant's
motion for summary judgment, granted plaintiff's cross-
motion with respect to the claim for unjust enrichment, and
imposed a constructive trust in plaintiff's favor on $100,000
of the $600,000 that defendant had received from the policy.4

As noted, defendant appealed from the trial court's
judgment, and the Court of Appeals reversed. The court
examined three cases that involved similar attempts by a for-
mer spouse to impose a constructive trust on the proceeds of
a decedent's life insurance policy after the decedent had died
in breach of a legal obligation to maintain life insurance nam-
ing the former spouse as beneficiary. Based on those cases,
the court concluded that, to prevail on an unjust enrichment
theory against the person who had been named as the dece-
dent's beneficiary, a plaintiff must prove both (1) that, by des-
ignating another person as his or her beneficiary, the dece-
dent essentially gave that person property that previously
had belonged to the plaintiff; and (2) that the person named
as beneficiary either knew or should have known of the
wrongfulness of the decedent's action. Tupper, 227 Or App at
400-03. Observing that, in the present case, there was evi-
dence both for and against the latter requirement, the court
concluded that plaintiff was not entitled to summary judg-
ment on her unjust enrichment claim. Id. at 402-03. The
court further concluded that defendant was entitled to sum-
mary judgment on that claim, because plaintiff had not and
could not produce evidence that would satisfy the first
requirement, i.e., that plaintiff previously had had an inter-
est in the policy in question. Id. at 406. The court added that,
for essentially the same reason, defendant was entitled
to summary judgment on plaintiff's "money had and
received" claim. Id. We allowed plaintiff's petition for review

4 The trial court concluded that, in light of its resolution of the unjust enrich-
ment claim, plaintiff's claim for money had and received was moot.

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to consider whether and how the equitable concepts of unjust
enrichment and constructive trust apply in this context.

We begin with plaintiff's unjust enrichment claim,
under which she seeks to impose a constructive trust on
$100,000 of the proceeds of decedent's United of Omaha pol-
icy. She advances two theories for imposition of that remedy.
Her first theory is couched in the law of contracts: It focuses
on the simple fact that, in the context of the decedent's dis-
solution agreement with plaintiff, the decedent stipulated to
imposition of a constructive trust in the event of decedent's
breach of the life insurance term. In plaintiff's view, that stip-
ulated remedy is as binding as any other contract term would
be and, to establish her right to that remedy, she need only
prove the elements set out in the stipulation-that the dece-
dent owned the policy in question at the time of his death and
that he died in breach of his obligation to maintain life insur-
ance in the required amount naming plaintiff as beneficiary
and trustee. Plaintiff reasons that dissolution judgments are
to be enforced as contracts, ORS 107.104(2)(a),5 and that this
court has been amenable to enforcing equitable remedies to
which the parties to a contract have agreed, even when the
remedy is one that otherwise would not be available.6

Plaintiff points out, moreover, that it is the
announced public policy of this state that courts "enforce the
terms of settlements [of suits for marital * * * dissolution] to
the fullest extent possible, except when to do so would violate
the law or would clearly contravene public policy." ORS

5 ORS 107.104(2)(a) provides:

"In a suit for marital * * * dissolution *** , the court may enforce the
terms set forth in a stipulated judgment signed by the parties, a judgment
resulting from a settlement on the record or a judgment incorporating a mari-
tal settlement agreement:

"(a) As contract terms using contract remedies."

6 Plaintiff cites Cash Flow Investors, Inc. v. Union Oil Co., 318 Or 88, 91, 862
P2d 501 (1993) (in contract dispute, court may impose attorney fees as provided in
contract); Illingworth v. Bushong, 297 Or 675, 694, 688 P2d 379 (1984), overruled
on other grounds by Ditommaso Realty, Inc. v. Moak Motorcycles, Inc., 309 Or 190,
785 P2d 343 (1990) (contracting parties may agree on liquidated damages where
damages would be difficult or impossible to accurately estimate); Eldridge et al. v.
Johnston, 195 Or 379, 407-08, 245 P2d 239 (1952) (contracts in restraint of trade,
providing for injunction against working in certain field, are enforceable if limited,
reasonable, and supported by consideration).

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107.104(1)(b). Plaintiff argues that, far from contravening
public policy, the settlement term at issue here-requiring
an ex-spouse to obtain life insurance for the benefit of his
child and stipulating to a constructive trust remedy for
breach of that term-is one that the legislature particularly
favors. As evidence of that fact, plaintiff points to ORS
107.810, which provides:

"It is the policy of the State of Oregon to encourage per-
sons obligated to support other persons as the result of a
dissolution * * * of marriage * * * to obtain or cooperate in
the obtaining of life insurance adequate to provide for the
continued support of those persons in the event of the obli-
gor's death."

But, in making all of those statutory policy argu-
ments, plaintiff misses an essential point: The person against
whom she is proceeding is a stranger to the dissolution decree
and the stipulation of remedy. However much the legislature
may favor a policy of holding the parties to dissolution agree-
ments to the terms of their agreements, that legislative pol-
icy does not serve as dispositive authority for imposing the
same terms on a person who is not a party to the agreement.

Plaintiff argues that, in any event, she is entitled to
the same constructive trust remedy under Oregon's common
law of constructive trusts and unjust enrichment. We begin
our discussion of plaintiff's theory by briefly summarizing the
common-law principles of unjust enrichment and construc-
tive trust.

It is important to understand, first, that the concept
of constructive trust does not stand on its own as a substan-
tive claim, but exists solely as an equitable remedy, available
to divest an individual who has been unjustly enriched of
property that he or she "ought not, in equity and good con-
science, hold and enjoy." Marston v. Myers et ux, 217 Or 498,
509, 342 P2d 1111 (1959). The concepts of constructive trust
and unjust enrichment thus are intertwined: When "the law
employs a constructive trust, the doctrine of unjust enrich-
ment governs generally the substantive rights of the parties."
Barnes v. Eastern and Western Lbr. Co., 205 Or 553, 597, 287
P2d 929 (1955). See also Belton v. Buesing, 240 Or 399, 409,

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402 P2d 98 (1965) (constructive trust is "a remedial institu-
tion invented by equity to avoid unjust enrichment in situa-
tions where there is no other available equitable remedy").

Although our cases refer to a substantive "doctrine"
of unjust enrichment, none provide any really comprehensive
exposition of that doctrine. Instead, the cases simply describe
the kinds of actions and circumstances that would constitute
unjust enrichment warranting imposition of a constructive
trust, and then observe that the concept extends to other sim-
ilar acts and circumstances. Thus, in Suitter v. Thompson
et ux, 225 Or 614, 625, 358 P2d 267 (1961), the court stated
that equity may impress a constructive trust on property

"'obtained through actual fraud, misrepresentations, con-
cealments, or through undue influence, duress, taking
advantage of one's weakness or necessities, or through any
other similar means or under any other similar circum-
stances which render it unconscientious for the holder of the
legal title to retain and enjoy the beneficial interest.'"

(quoting John Norton Pomeroy, 4 A Treatise on Equity
Jurisprudence § 1053, 119 (5th ed 1941)) (emphasis added).

We recognize that the foregoing precedents concern
inequitable conduct of a recipient of property, and not con-
duct by a grantor or donor. However, other cases have added
to the list of circumstances that might support a claim for
unjust enrichment. In Albino v. Albino, 279 Or 537, 568 P2d
1344 (1977), for example, this court held that a constructive
trust is warranted, even in the absence of the more active
sorts of wrongful behavior identified in Suitter, when a per-
son in a fiduciary or confidential relationship acquires or
retains property in violation of a duty impressed upon him by
that relationship. 279 Or at 550; see also Pantano v. Obbiso,
283 Or 83, 86, 580 P2d 1026 (1978) (to the same effect). And
in Scoggins v. State Construction, 259 Or 371, 376, 485 P2d
391 (1971), we suggested that even a "mistake" might result
in unjust enrichment justifying imposition of a constructive
trust. Among all of those examples, however, the common
thread is the acquisition or retention of property in a way
that is in some sense wrongful or, as Pomeroy would have it,
"unconscientious."

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An examination of this court's unjust enrichment
cases demonstrates another relevant common-law precept-
that the constructive trust remedy is not limited to property
that remains in the hands of the party who was directly
involved in the wrongful divestment or retention. In Newton
v. Pickell et al., 201 Or 225, 232-33, 269 P2d 508 (1954), for
example, this court imposed a constructive trust on a residen-
tial property conveyed as a gift to the defendant by his father,
when the father had entered into a prenuptial agreement
promising to convey an undivided half-interest in the prop-
erty to his then-prospective wife. The court explained that, by
virtue of the prenuptial agreement, the property had been
impressed with a constructive trust in the prospective wife's
favor, which the father had violated when he wrongfully
transferred the property to his son. The court then went on to
explain that

" "[w]herever property, real or personal, which is already
impressed with or subject to a trust of any kind, express or
by operation of law, * * * devolves from [the] trustee to a
third person, who is a mere volunteer * * * , or who is a pur-
chaser with actual or constructive notice of the trust * * * ,
then the rule is universal that such heir, devisee, successor,
or other voluntary transferee, or such purchaser with
notice, acquires and holds the property subject to the same
trust which before existed, and becomes himself a trustee
for the original beneficiary. * * * It is not necessary that
such transferee or purchaser should be guilty of positive
fraud, or should actually intend a violation of the trust obli-
gation; it is sufficient that he acquires property upon which
a trust is in fact impressed, and that he is not a bona fide
purchaser for a valuable consideration and without notice.'"

Id. (quoting Pomeroy, 4 Equity Jurisprudence § 1048 at 102).7
See also Suitter, 225 Or at 625 (when property has been
obtained under "unconscientious" circumstances, "a court of

7 Conversely, we have stated that,

" [i]f the trust property, or its substitute or product, has passed into the hands
of a party who obtained the legal title to it and paid value for it, without notice
of the existence of the trust and the consequent equitable interest of the bene-
ficiary, the equitable interest is cut off and the legal title holder may retain the
property free and clear of any duty toward the beneficiary.'"

Clearwater v. Wagner, 272 Or 491, 496, 537 P2d 532 (1975) (quoting George C.
Bogert, The Law of Trust § 165, 600 (5th ed 1973)).

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equity has jurisdiction to reach the property either in the
hands of the original wrongdoer, or in the hands of any sub-
sequent holder, until a purchaser of it in good faith and with-
out notice acquires a higher right, and takes the property
relieved from the [constructive] trust"). Thus, when a person
possesses property that, in equity and good conscience
belongs to another, the fact that that person is innocent of
any affirmative wrongdoing with respect to the property will
not, standing alone, prevent the equitable owner from obtain-
ing a constructive trust.

A final relevant common-law principle associated
with the rule, and often recited in this court's cases, is that a
constructive trust "must be proved by strong, clear and con-
vincing evidence." See, e.g., Albino, 279 Or at 550; Clearwater
v. Wagner, 272 Or 491, 495, 537 P2d 532 (1975); Hughes v.
Helzer, 182 Or 205, 224, 185 P2d 537 (1947) (all to that
effect). Generally, this court has employed that rule as a
shorthand for the proposition that a constructive trust can
attach only to items and money that the evidence clearly
identifies as rightfully "belonging" to the plaintiff, or to the
identifiable products of, or substitutes for, those items and
money. Thus, in Clearwater, the court declined to impose a
constructive trust on a defendant's boat, which the defendant
had obtained after a third party, who had defrauded the
plaintiff of $5,000, had conveyed $1,000 to the defendant in
an unrelated transaction. Plaintiff asserted that the boat had
been paid for with money that in equity and good conscience
belonged to her. But, after noting that there was no "infer-
ence" of identity between the fraudulently obtained funds
and the wrongdoer's other assets, this court concluded that
plaintiff had failed to carry her burden of proving "by strong,
clear and convincing evidence" that her money had gone into
the purchase of the boat. Id. at 495-96. Similarly, in Pantano,
this court considered a plaintiff's bid to impose a constructive
trust on funds from a savings account that his deceased wife
had owned jointly with her sister, on the theory that, over the
years, the wife had secretly and wrongfully taken money
from him to fund the account. After citing the "strong, clear
and convincing evidence" standard, the court rejected the
plaintiff's claim on the ground that the plaintiff could not
show "by even a preponderance of the evidence standard that

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any specific or definite amount of his money was deposited by
[his wife] into the sisters' joint accounts." 283 Or at 87.

From the foregoing discussion, we can identify the
following elements that a plaintiff must prove in order to pre-
vail on an unjust enrichment claim in circumstances like
those presented here. First, the plaintiff must show that
property or a property interest that rightfully belongs to her
was taken or obtained by someone else under circumstances
that in some sense were wrongful or inequitable. Next, the
plaintiff must show that the person who now possesses the
property is not a bona fide purchaser for value and without
notice. Finally, the plaintiff must establish, with "strong,
clear and convincing evidence," that the property in the
hands of that person, i.e., the property upon which she seeks
to impose a constructive trust, in fact is the very property
that rightfully belongs to her, or is a product of or substitute
for that property. With those general principles in mind, we
turn to consider whether and how they apply when a dece-
dent's ex-wife, whom the decedent was under an obligation to
name as his life insurance beneficiary, attempts to acquire
insurance proceeds that are in the hands of a person whom
the deceased instead named as his beneficiary.

We begin with the question whether circumstances
like those just described can satisfy the element of wrongful-
ness that a claim for unjust enrichment requires. As dis-
cussed, our unjust enrichment cases speak of a range of
circumstances that could be deemed wrongful, including mis-
take, fraud, coercion, undue influence, duress, taking advan-
tage of weakness, and violation of a duty imposed by a confi-
dential or fiduciary relationship. Albino, 279 Or at 550;
Scoggins, 259 Or at 376; Suitter, 225 Or at 625. In general, it
would seem that a decedent's breach of a predissolution
agreement and court order to name his ex-spouse as a bene-
ficiary of a life insurance policy for the benefit of a child whom
the decedent had an obligation to support would fall within
the required range. In general, then, we can say that, in these
sorts of circumstances, the decedent's conduct has deprived
his or her child of something (the nature of which we have yet
to discuss), under circumstances that are wrongful or
inequitable.

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But what is the status of the person who actually is
named as the beneficiary, who receives and retains the insur-
ance proceeds upon which the ex-spouse seeks to impose a
constructive trust? If that person is innocent of any wrong-
doing with respect to the decedent's breach of his obligation
under the dissolution decree, is it wrongful or inequitable for
her to retain those proceeds? The cases we have discussed
above, 349 Or at 221-23, suggest that retention of insurance
proceeds in such circumstances may be deemed wrongful and
that a disappointed ex-spouse may reach the proceeds in such
person's hands.

Thus far there is no serious incompatibility between
the concepts of unjust enrichment and constructive trust, on
the one hand, and the circumstances of the present case on
the other. But a complication does arise when we consider
whether a term in a dissolution decree that obliges a party to
that decree to maintain life insurance naming the party's
ex-spouse as beneficiary can be considered property for pur-
poses of the concepts of unjust enrichment and constructive
trust. Moreover, there is the necessity, discussed above, of
showing that the property upon which a constructive trust is
to be imposed is the same property that was wrongfully
taken, or a direct substitute for or product of that property.
349 Or at 222-23. And there is one further complication: The
answer to whether an agreement to maintain life insurance
naming an ex-spouse as a beneficiary confers "property" on
the ex-spouse may depend on whether it appears that the
parties had a particular policy or policies in mind.

We attack the problem, first, by considering the sim-
plest case-a bargained-for obligation to maintain a specified
existing policy that names the ex-spouse as beneficiary.
Courts in other jurisdictions have almost uniformly held that
such an obligation confers on the ex-spouse a vested, equita-
ble property interest in the insurance policy and its proceeds
that is superior to the mere legal right of a subsequently
named beneficiary. See, e.g., Williams v. Williams, 276 Ala
43, 158 So 2d 901 (1963); Carpenter v. Carpenter, 150 Ariz
130, 722 P2d 298 (1985); Handrahan v. Moore, 332 Mass 300,
124 NE2d 808 (1955); Bailey v. Prudential Ins. Co. of
America, 124 Ohio App 3d 31, 705 NE2d 389 (1997) (all to
that effect). See also Lee R. Russ, 4 Couch on Insurance 3d
§§ 64:24 - 64:26, 64-50 - 64-59 (3d ed 2005) (describing effect

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of divorce decree requiring party to maintain existing life
insurance for the benefit of the other spouse or of children of
the marriage). Generally, those courts have reasoned that
such an agreement destroys the right of the obligated party
to designate a different beneficiary, thereby creating an equi-
table property interest in the policy in the other party. We
agree with that reasoning, and with the resulting conclusion
that, when a dissolution agreement requires a party to main-
tain a specified, existing life insurance policy naming his or
her ex-spouse as the beneficiary, the ex-spouse thereby
obtains an equitable property interest in the policy and its
proceeds that is superior to the legal right of any subse-
quently designated beneficiary who is not a bona fide pur-
chaser for value without notice.

On the other hand, there are cases in which a disso-
lution agreement does not refer to any particular policy but,
instead, contains a simple promise to obtain some policy in a
specified amount that names the ex-spouse as beneficiary. In
some of those cases, courts have concluded that the ex-spouse
does not obtain an equitable property interest in an insur-
ance policy naming a different beneficiary that the obligated
party later obtained. See, e.g., Larson v. Larson, 226 Ga 209,
173 SE2d 700 (1970); Foster v. Hurley, 444 Mass 157, 826
NE2d 719 (2005); Parge v. Parge, 159 Wis 2d 175, 464 NW2d
217 (1990) (all to that effect). But see Holt v. Holt, 995 SW2d
68, 77 (Tenn 1999) (imposing constructive trust on proceeds
of later-obtained insurance policy naming different benefici-
ary than required under dissolution agreement); Jones v.
Harrison, 250 Va 64, 70, 458 SE2d 766 (1995) (same). The
reasoning behind that conclusion is simple: Because people
ordinarily are free to purchase as many life insurance policies
as they choose, naming different beneficiaries on each one,
there is no necessary connection between a person's promise
to obtain insurance naming an ex-spouse as the beneficiary
with his or her subsequent purchase of a particular policy
that names an entirely different person as the beneficiary.
We understand that reasoning, but need not decide whether,
if presented with a case involving only those facts, we would
adopt it.

We reserve that issue because there are circum-
stances that fall between those two scenarios-where, in
spite of the absence of any reference to a particular existing

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insurance policy, the dissolution agreement nevertheless
draws a clear connection between the obligated party's prom-
ise to purchase an insurance policy naming the ex-spouse as
beneficiary and one or more subsequently obtained policies
naming different beneficiaries. In our view, as a matter of
logic, the fact that the policy at issue did not exist at the time
of the dissolution agreement is of little significance if the dis-
solution agreement is able in some other way to establish an
intent to bind the obligated party with respect to one or more
identifiable subsequently obtained policies. It follows that an
obligation to obtain an insurance policy naming an ex-spouse
as beneficiary may confer an equitable interest in a later-
acquired policy, if the obligation in some fashion clearly iden-
tifies that policy as one of its objects.

We turn to the question whether the record on sum-
mary judgment establishes that element as a matter of law,
i.e., whether the obligation to obtain insurance naming the
ex-spouse as beneficiary is stated in terms that clearly iden-
tify the policy at issue as an object of the obligation, so that
the ex-spouse may be deemed to have an equitable property
interest in that policy. The only relevant evidence in the rec-
ord with respect to that element is the wording of the life
insurance term in the dissolution decree.

There are two parts of the provision that are perti-
nent. First, there is the broad initial statement that the dece-
dent is obligated to

"maintain an insurance policy insuring his * * * life in an
amount of not less than $100,000, naming [plaintiff] as
trustee on behalf of [plaintiff's and Tupper's] child."

(Emphasis added.) The second part of the provision that is
relevant states:

"A constructive trust shall be imposed over the proceeds of
any insurance owned by either party at the time of either
party's death if either party fails to maintain insurance in
said amount, or if said insurance is in force but another
beneficiary is designated to receive said funds."

(Emphasis added.)

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In our view, the wording of the first statement by
itself does not, as a matter of law, confer on plaintiff any equi-
table interest in the policy at issue. The statement does not
point to any specific policy, whether existing at the time of
the dissolution agreement or otherwise. Rather, it refers,
generically, to "an" insurance policy. Neither does the first
statement in any way "destroy" or limit Tupper's right to
purchase insurance policies naming other persons as
beneficiaries.

But the second statement is a different matter. That
statement expressly contemplates a failure on Tupper's part
to carry out the obligation to maintain an insurance policy as
described and, where such a failure has occurred, purports to
impose a constructive trust on "any" insurance policy owned
by Tupper at the time of his death. The insurance obligation
thus is stated in terms that clearly identify "any" insurance
policy owned by Tupper at the time of death-including the
$600,000 United of Omaha policy-as its objects. We con-
clude that, as a matter of law, the life insurance provision
vests in plaintiff an equitable interest in the policy at issue.

We turn now to the other element of her claim that
plaintiff asserted and that the cases generally require her to
prove-viz., that defendant (the decedent's named benefici-
ary) did not give valuable consideration for being so named
and had notice of the decedent's obligation to name the plain-
tiff as beneficiary. With respect to those considerations, the
evidence is mixed. Plaintiff presented three affidavits-her
own and those of Tupper's mother and father-that averred
that defendant had made statements showing that she had
prior notice of Tupper's obligation under the dissolution
decree. But, in her own affidavit, defendant denied having
had prior notice.8 Defendant's affidavit also is directed at
proving that she paid valuable consideration for her status as
Tupper's beneficiary-she suggests that the purchase of an
insurance policy naming her as beneficiary was, in some

8 We refer here only to the record as it exists on the parties' cross motions for
summary judgment. We express no view on the question whether, under other
facts, constructive notice to a defendant might be sufficient to defeat defendant's
claim of entitlement to the policy proceeds. But see Suitter, 225 Or at 625 (quoting
Pomeroy and suggesting constructive notice would be sufficient).

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sense, a repayment for her contribution of funds for the pur-
chase of the home that she and Tupper shared and for her
unpaid work for the business that she and Tupper had
started together. Although that evidence might not be suffi-
cient to establish for an ultimate trier of fact that defendant
paid valuable consideration to Tupper to be named as his
beneficiary, we cannot say that it is insufficient as a matter of
law to create a factual question respecting the issue. On the
summary judgment record as a whole, therefore, defendant's
status as a bona fide purchaser without notice remains an
issue of fact.

From the foregoing discussion, we conclude that nei-
ther party was entitled to summary judgment with respect to
plaintiff's unjust enrichment claim. It follows that the trial
court erred in granting plaintiff's motion for summary judg-
ment and that the Court of Appeals erred in remanding for
entry of summary judgment in favor of defendant.

That leaves us to consider plaintiff's claim for money
had and received. As noted, the trial court declared that
claim to be moot after it granted summary judgment on
plaintiff's unjust enrichment claim and imposed the con-
structive trust that she had requested. On defendant's
appeal, the Court of Appeals rejected plaintiff's suggestion
that she was entitled to summary judgment on her money
had and received claim, and that the imposition of the con-
structive trust remedy should be affirmed on that alternate
theory. Relying on a definition set out in Powell et al. v.
Sheets et al., 196 Or 682, 251 P2d 108 (1952), the Court of
Appeals announced that an action for money had and
received may be maintained " 'whenever one has money in
his hands belonging to another, which, in equity and good
conscience, he ought to pay over to that other.'" 227 Or App
at 406 (quoting Powell, 196 Or at 700). It then explained that,
for the same reasons set out in its discussion of plaintiff's
unjust enrichment claim, plaintiff did not and could not
establish that she ever had had a property interest in the
insurance policy and proceeds that were the object of her
claim.

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We have rejected the Court of Appeals' conclusion
that plaintiff had not and could not show that she had a prop-
erty interest in the proceeds of the United of Omaha insur-
ance policy (in fact, we have concluded that, to the contrary,
the dissolution decree conferred on plaintiff an equitable
property interest in that policy as a matter of law). It follows
that the Court of Appeals' reasoning with respect to plain-
tiff's money had and received claim rested on an incorrect
premise. In the absence of any other well-developed argu-
ment with respect to plaintiff's money had and received
claim, we conclude that defendant was not entitled to sum-
mary judgment on that claim and that the Court of Appeals
erred in directing the trial court to grant defendant's motion.
And, because we have rejected the trial court's resolution of
plaintiff's unjust enrichment claim, we also must reject that
court's conclusion that its resolution of that claim rendered
moot plaintiff's claim for money had and received. We so hold.
If she elects to do so, plaintiff is entitled to have her money
had and received claim tried along with the unjust enrich-
ment claim.

The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.