Castle v. Parrish, Bankruptcy No. 3-82-01920

• Decision Date: 02 May 1983
• Docket Number: Bankruptcy No. 3-82-01920,Adv. No. 3-82-0492.
• Citation: 29 BR 869
• Parties: Sylvia (Parrish) CASTLE, Plaintiff, v. Raymond Wallace PARRISH, Defendant. In the Matter of Raymond Wallace PARRISH, Debtor.
• Court: U.S. Bankruptcy Court — Southern District of Ohio

29 B.R. 869 (1983)

Sylvia (Parrish) CASTLE, Plaintiff, v. Raymond Wallace PARRISH, Defendant In the Matter of Raymond Wallace PARRISH, Debtor.

Bankruptcy No. 3-82-01920, Adv. No. 3-82-0492.

United States Bankruptcy Court, S.D. Ohio, W.D.

May 2, 1983.

Michael Catanzaro, Springfield, Ohio, for debtor/defendant.

Barry W. Vermeeren, Sandusky, Ohio, for plaintiff.

George Ledford, Englewood, Ohio, Trustee.

DECISION AND ORDER

CHARLES A. ANDERSON, Bankruptcy Judge.

FINDINGS OF FACT

Raymond Wallace Parrish filed a voluntary petition for relief under Chapter 13 on July 6, 1982. His wife, Florence Evelyn Parrish, did not join in the petition although she is listed as regularly employed. No objections were interposed to the proposed plan and an Order of Confirmation was duly entered on 19 August 1982. The Plan requires monthly payments in the amount of $220.00 for a period of thirty-six months. The total secured debts scheduled was in the amount of $37,170.98, of which $28,476.98 represented two mortgages on residential real estate as scheduled. The balance represents a debt and security interest on a 78 Dodge Motor Home in the amount of $4,627.00 and a debt of $240.00 to Snap-on Tool Corporation. The unsecured debts totaled $26,460.00 of which $24,000.00 represents a debt to Sylvia Castle, scheduled as a "Judgment Creditor."

The meeting of creditors pursuant to 11 U.S.C. § 341(a) was held on 3 August 1982. Sylvia (Parrish) Castle filed a secured claim prior thereto, on 27 July 1982, in the total amount of $24,136.00.

The Plan as confirmed provides, in general, that secured creditors shall be paid prorata the value of their secured claim plus 10% interest and shall retain their liens until completion of payments under the Plan.

On 19 August 1982 the Debtor filed "NOTICE TO DECLARE LIEN AVOIDED," expressing "his intent to declare the judgment lien of creditor Sylvia Castle avoided, said lien being evidenced by a Certificate of Judgment filed June 30, 1982 upon the lands of the Defendant with the Champaign County Recorder's Office," on the basis the judgment lien impairs the debtor's right to an exemption in the real estate.

On 30 June 1982 Sylvia Castle had instituted the instant adversarial proceeding to determine the dischargeability of her claim, in the amount of $23,550.00 plus interest from March 17, 1982. The claim of the Plaintiff stems from a Decree of Divorce entered in the Erie County Common Pleas Court on 21 May 1964, between Sylvia Parrish Castle and Raymond Wallace Parrish. In pertinent part the decree awarded the custody of the parties' five minor children to Sylvia Parrish. The decree further orders the Defendant to pay the sum of $50.00 each and every week for the support of these minor children. The support payments were to commence on May 8, 1964, and continue until the minor children had reached the age of 18 years. The decree further provides that, "It is further ordered by the Court that in the event that either party intend sic to remarry, she or he will notify the Court at least sixty (60) days before the date of their intended remarriage."

After the divorce Defendant left the area and never made any attempt to contact his former wife or the minor children issue of the marriage. He was aware that a warrant for his arrest had been issued in 1964. After the divorce the total paid by him for child support was only $450.00. At the time, the Plaintiff was unemployed and was required to go on Welfare for two months until employment could be obtained. The Prosecuting Attorney endeavored to locate the Defendant without success. The Plaintiff never gave up in her attempts to locate her ex-husband although she was not successful until late 1981. After the children had attained majority and were no longer being supported by the Plaintiff, they were successful in locating the Defendant and advised their mother of his whereabouts. He and his family were less secretive in putting the children in touch with him.

On 15 June 1982 Plaintiff filed a motion in the State Court to reduce the arrearages and support payments to lump sum judgment. By agreement of the parties a judgment was entered on 17 March 1982, in pertinent part as follows:

"Upon the basis of the agreement between the parties, it is HEREBY, ORDERED, ADJUDGED AND DECREED that the Plaintiff is given judgment against the Defendant in the sum of $24,000.00 of which $4,000.00 is to be paid on or before August 9, 1982, in a lump sum although the remaining $20,000. is currently owed and is in all respects payable upon demand. It is further ORDERED that the Plaintiff shall make no attempts to garnish Defendant\'s wages unless he misses a payment of the $50.00 per week as agreed. All payments are to be made by check issued to the Order of Barry W. Vermeeren, and mailed to his office 300 Feick Building, P.O.Box 1389, Sandusky, Ohio 44870."

Defendant subsequently made nine payments of $50.00 each and then discontinued making payments. On 30 June 1982, Plaintiff filed a Certificate of Judgment for lien upon the lands of the Defendant in the office of the Recorder of Champaign County, Ohio.

There is no evidence that the payment of the weekly support payments over the years would have been impossible or would have created any undue hardship to the Defendant. The evidence does reveal that the Defendant never sought relief from the State Court Decree in 1964 because of hardship or a change in circumstances. During the period from 1964 until 1981 that the Defendant concealed his whereabouts from his ex-wife and five minor children the Plaintiff supported the children by working long hours and often was required to hold two different jobs in different cities. She presently has only the sum of approximately $100.00 per week, earned as a waitress or bar maid.

DECISION

In behalf of Plaintiff it is urged that the claim for support of the minor children is not dischargeable, citing 11 U.S.C. § 523(a)(5) and Hylek v. Hylek, 148 F.2d 300 (7th Cir.1945). It is further argued, as follows:

"The recent cases on this issue have not been unanimous in their decisions. Flying in face of `stare decisis\' is the recent case of In re Nelson 16 B.R. 658, (Bkrtcy.Tenn. 1981) CCH Bankruptcy Law Reporter, ¶ 68,569, which held that where the children had reached majority and there was no present need of the payments by the ex-wife or children and the State Court remedies were available to the ex-wife during the period that the payments were occurring the debt was dischargeable. This writer could\'nt disagree more with the Court in Nelson. If it is followed, it would turn the bankruptcy court into a court of domestic relations, weighing the relative need of the exspouses to the money and determining whether the creditor spouse had properly availed herself of her state court remedies. It seems as though the Court in Nelson was willing to totally disregard the clear mandate of 11 U.S.C. § 523(a)(5) in favor of a burdensome trial procedure which would award a debtor for abandoning his children and eluding the efforts of his ex-spouse to avail herself of some help in rearing their children."

The Defendant counters by the argument, as follows:

That the lump sum judgment supercedes the support decree and does not "represent a figure for present or future support of children since all the children were self-supportive and clearly emancipated at the time of the filing of the petition herein . . . This is evidenced by a careful reading of the March 17, 1982 entry, where Plaintiff incorporated language providing for garnishment if weekly payments were missed. Further, the entry required Defendant to transfer interest in a motor home if a four thousand dollar ($4,000) lump sum was not paid by August 9, 1982 . . . These facts evidence an intent of the parties that the debt was to be treated like any other debt in order to establish a basis for post-judgment remedies under Ohio law. Had Plaintiff established an arrearage without reducing it to judgment and had there been a need for support, the obligation would remain as one of support."

The Defendant further argues, citing In re Warner, 5 B.R. 434, 6 B.C.D. 788 (Bkrtcy. D.Utah 1980), that the determination of whether or not a decree for support is dischargeable is based upon a determination at the time of the filing in the bankruptcy court, as to whether the payments are reasonably necessary for the support and maintenance of the spouse and children both at the time the debt was imposed in the divorce decree and at the time a discharge of the debt is attempted. The conclusion urged is, as follows:

"Applying the Warner case criteria to the instant case, it is evident that inquiry should be made into the present need by Plaintiff Sylvia Parrish (Castle) for the need of support for her children. Her testimony at the trial established that she is no longer in need of support. The children will not receive the money from the judgment should it be held non-dischargeable."

The facts present, in final analysis, a question of public policy and a balancing of the intent and purpose of the State Court Decree to provide subsistence for the minor children of Defendant juxtaposed to the intent and purpose of bankruptcy law of providing a new start in life to a Defendant burdened by preexisting debts.

This Court has in numerous other cases held that a decree for support or alimony does not lose its nondischargeable character by merger into a subsequent lump sum judgment. See In re Charles Richard Butler, Case No. B-3-77-1328 (at Dayton, January 10, 1978), citing In The Matter of Avery, (C.C.A. 6th, 1940) 44 Am.B.R. (N.S.) 168, 114 F.2d 768. Such is also the holding in Hylek v. Hylek (1945, C.C.A. 7) 148 F.2d 300, as cited by Plaintiff.

In the matter sub judice there is no dispute that the award by the State Court in the 1964 decree was for the support of the Defendant's five minor children. This fact and the amount of the award necessary and...