Calhoun, In re

Decision Date30 August 1983
Docket NumberNo. 82-3180,82-3180
Citation715 F.2d 1103
Parties9 Collier Bankr.Cas.2d 290, 10 Bankr.Ct.Dec. 1402, Bankr. L. Rep. P 69,349 In re Clarence Oral CALHOUN fdba Bimbo's Place, Debtor. Jo Ann LONG FKA Jo Ann Calhoun, Plaintiff-Appellee, v. Clarence Oral CALHOUN fdba Bimbo's Place, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Donald R. Little, Canton, Ohio, for defendant-appellant.

Thomas G. Bedall, Stark County Legal Aid Society, Canton, Ohio, for plaintiff-appellee.

Before KENNEDY, MARTIN and NIES, * Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

Clarence Calhoun appeals the Bankruptcy Court's summary judgment that his assumption of five loan obligations totaling $27,564.14 pursuant to a separation agreement between Calhoun and his former wife were "in the nature of" support or alimony and therefore nondischargeable debts under 11 U.S.C. § 523(a)(5). 1 We reverse and remand for further proceedings consistent with this opinion.

Appellant filed for voluntary bankruptcy under Chapter 7, 11 U.S.C. § 701 et seq., on July 1, 1980. His former wife, appellee Jo Ann Long, was listed as the holder of unspecified unsecured claims. Appellee Long brought a complaint before the Bankruptcy Court to determine whether obligations of $21,611.32 2 assumed by the appellant in the parties' separation agreement constituted alimony excepted from discharge under 11 U.S.C. § 523(a)(5).

Calhoun and Long were married, both for the second time, on October 2, 1976. No children resulted from their marriage. Each had children from their first marriages. On November 14, 1979 the couple entered into a separation agreement in which Calhoun, unrepresented by counsel, 3 agreed to assume five debts jointly incurred during the marriage and to hold Long harmless for their payment. The agreement characterizes this assumption as alimony and support although it is found in the section of the document labeled Division of Property. Another section labeled Alimony states that there shall be no alimony other than that provided in the debts and obligation section. An Ohio Common Pleas Court subsequently incorporated this agreement into a divorce decree dissolving the marriage.

The five obligations assumed by Calhoun include:

(1) A note for $8,670 to the First National Bank of Massillon which financed a swimming pool at the home owned by the appellee Long;

(2) A note for $11,000 to Floyd Schalmo, the proceeds from which were used to consolidate the couple's debts including $5,000 for Calhoun's business, Bimbo's Place, and $6,000 for utilities, car payment and prior debts;

(3) Visa card charges of $1,076.38 incurred to pay for Calhoun's expenses at a truck driving school;

(4) Mastercharge card charges of $824.22 for Calhoun's expenses while "on the road";

(5) A note of $5,998.40 for the purchase of a 1977 Dodge Tradesman Van titled to Calhoun.

At the time of their separation Calhoun had sold his business and had been laid off from his job as a meat cutter. His earnings for the prior three years were approximately $10,000 to $15,000 in 1977, $7,500 in 1978, and a loss in 1979. His current income is approximately $950.00 per month from which he is required to pay approximately $300.00 per month for support of two children from his previous marriage and $707.00 per month on the debts he assumed in the parties' separation agreement. Long has an income of approximately $500.00 per month (including $260.00 in ADC payments and $160.00 in child support from her first husband). She owns her own home (which she received on dissolution of her first marriage) on which she pays $95.00 per month in mortgage payments.

This case presents the issue of when a debtor's assumption of joint debts and the undertaking to hold a former spouse harmless as part of a marriage separation agreement constitutes support or alimony payments to the former spouse resulting in non-dischargeable debts under 11 U.S.C. § 523(a)(5). 4

Section 523(a)(5) represents Congress' resolution of the conflict between the discharge of obligations allowed by the bankruptcy laws and the need to ensure necessary financial support for the divorced spouse and children of the debtor. Accordingly, § 523 excepts from discharge payments:

(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of both spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that--

(A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act); or

(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support(.)

The initial question is whether those obligations not payable directly to the former spouse are nondischargeable under § 523(a)(5). The Senate and House Reports contain conflicting language. At one point they seem to indicate payments must be made directly.

Paragraph (5) excerpts from discharge debts to a spouse, former spouse, or child of the debtor for alimony to, maintenance for, or support of, the spouse or child. This language, in combination with the repeal of section 456(b) of the Social Security Act (43 U.S.C. 656(b)) by section 327 of the bill, will apply to make nondischargeable only alimony, maintenance, or support owed directly to a spouse or dependent. See Hearings, pt. 2, at 942. (emphasis supplied)

H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 364 (1977) reprinted in [1978] U.S.Code Cong. & Ad.News, 5787, 6320; S.Rep. No. 95-989, 95th Cong., 2d Sess. 79, reprinted in [1978] U.S.Code Cong. & Ad.News 5865. The remaining portion of the report, however, refutes any direct payment requirement in the case of an agreement to hold a spouse harmless on joint debts.

This provision will, however, make nondischargeable any debts resulting from an agreement by the debtor to hold the debtor's spouse harmless on joint debts, to the extent that the agreement is in payment of alimony, maintenance, or support of the spouse, as determined under bankruptcy law considerations that are similar to considerations of whether a particular agreement to pay money to a spouse is actually alimony or a property settlement. See Hearings, pt. 3, at 1287-1290.

Id.

The Second Circuit rejected a requirement of direct payment in In re Spong, 661 F.2d 6 (2nd Cir.1981). The court relied, in part, on a joint explanatory statement by the principal sponsors of the Act:

If the debtor has assumed an obligation of the debtor's spouse to a third party in connection with a separation agreement, property settlement agreement, or divorce proceeding, such debt is dischargeable to the extent that payment of the debt by the debtor is not actually in the nature of alimony, maintenance, or support of debtor's spouse, former spouse, or child. 5

24 Cong.Rec. H11,096 (daily ed. Sept. 28, 1978) (remarks of Rep. Edwards); Id. at S17,412 (daily ed. Oct. 6, 1978) (remarks of Sen. DeConcini). See 661 F.2d at 10.

Bankruptcy court decisions have uniformly found hold harmless clauses to create nondischargeable obligations. E.g., In re Petoske, 16 B.R. 412 (Bkrtcy.E.D.N.Y.1982); Matter of Gentile, 16 B.R. 381 (Bkrtcy.S.D.Ohio 1982); In re French, 9 B.R. 464, 466-67 (Bkrtcy.S.D.Cal.1981). We agree with these courts and hold that payments in the nature of support need not be made directly to the spouse or dependent to be nondischargeable.

In accordance with the express language of § 523(a)(5) the bankruptcy courts have uniformly required that joint obligations assumed by the debtor as a part of a separation or divorce settlement must be "actually in the nature of" alimony or support in order to be excepted from discharge. E.g., In re French, 9 B.R. 464, 466-67 (Bkrtcy.S.D.Cal.1981); In re Eisenberg, 18 B.R. 1001, 1003-004 (Bkrtcy.E.D.N.Y.1982); In re Dirks, 15 B.R. 775, 779 (Bkrtcy.N.M.1981); In re French, 19 B.R. 255, 256 (Bkrtcy.M.D.Fla.1982). See also Melichar v. Ost, 661 F.2d 300, 303 (4th Cir.1981). The issue of when an assumption of joint debts is "in the nature of alimony, maintenance, or support" as opposed to a division of communal property is to be determined by federal bankruptcy law. E.g., In re Petoske, 16 B.R. 412 (Bkrtcy.E.D.N.Y.1982); In re Daiker, 5 B.R. 348, 351-52 (Bkrtcy.Minn.1980). See In re Spong, 661 F.2d 6, 8-9 (2nd Cir.1981). See generally 3 Collier on Bankruptcy § 523.15(1) (15th Ed.1981). The legislative history of the provision is unequivocal on this point. Both the House and Senate Reports declare:

What constitutes alimony, maintenance, or support, will be determined under the bankruptcy law, not State law. Thus, cases such as In re Waller, 494 F.2d 447 (6th Cir.1974), are overruled, and the result in cases such as Fife v. Fife, 1 Utah 2d 281, 265 P.2d 642 (1954) is followed. The Proviso, however, makes non-dischargeable any debts resulting from an agreement by the debtor to hold the debtor's spouse harmless, on joint debts, to the extent that the agreement is in payment of alimony, maintenance, or support of the spouse, as determined under bankruptcy law considerations as to whether a particular agreement to pay money to a spouse is actually alimony or a property settlement. (emphasis supplied)

S.Rep. No. 95-989, 95th Cong., 2d Sess., 79, reprinted in [1978] U.S.Code Cong. & Ad.News 5787, 5865. See also H.R. No. 95-595, 95th Cong., 1st Sess., 364 (1977), reprinted in [1978] U.S.Code Cong. & Ad.News 5963, 6320.

Yet, while it is clear that Congress intended that federal not state law should control the determination of when an assumption of joint debts is "in the nature of" alimony or support, it does not necessarily follow that state law must be ignored completely. It is unlikely that Congress could have intended such a result....

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