Collins v. Smith
| Decision Date | 26 February 1971 |
| Docket Number | No. 52977,52977 |
| Parties | , 55 O.O.2d 370 COLLINS v. SMITH. |
| Court | Ohio Court of Common Pleas |
Richard L. Eisnaugle, Portsmouth, for plaintiff.
Jack D. Young, Portsmouth, for defendant.
The entry of divorce filed herein on February 11, 1970, provided in part, as follows:
On December 3, 1970, plaintiff filed a motion alleging that the defendant had filed bankruptch; had not paid the amount owing on the note secured by a mortgage on said furniture and automobile; and that she had been required to pay thereon the sum of $660.88. She requested an order reducing that amount to a lump sum judgment in her favor against the defendant.
The defendant filed a memorandum denying liability for the reason that he had been discharged from that obligation through proceedings in bankruptcy, which discharge prevents the plaintiff from enforcing collection of the debt by reduction to a lump sum judgment.
The court finds that the defendant did receive a bankruptcy discharge as to the holder of the note and mortgage; that the plaintiff was not listed or notified as a creditor in the bankruptcy proceedings; and that the plaintiff has been required to pay the indebtedness by the creditor.
The first issue presented is:
Does the requirement that the defendant save the plaintiff harmless from liability on the joint obligation constitute an allowance of alimony or maintenance or support of a wife or child? Section 17 of the Federal Bankruptcy law provides:
'A discharge in bankruptcy shall release a bankrupt from all his provable debts, * * *, except such as * * * or for alimony due or to become due, or for maintenance or support of wife or child.'
Defendant contends that the provision referred to does not fall within the above exception.
We concur with the Seventh District Court of Appeals which took the position that a nearly identical provision constituted an award of alimony, and the obligation to save harmless cannot be discharged in bankruptcy. Fredericks v. Fredericks, 146 N.E.2d 153, 76 Ohio Law Abs. 296. R.C. 3105.18 provides:
'The Court of Common Pleas may allow alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either at the time of the decree.
'Such alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments as the court deems equitable.'
Here the order awarded the furniture and the automobile to the plaintiff as and for...
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Frommer v. Frommer
...in bankruptcy, direct that the spouse pay the joint obligations of both (Nesbit v. Nesbit, 80 N.M. 294, 454 P.2d 776; Collins v. Smith, 26 Ohio Misc. 231, 270 N.E.2d 377; Erickson v. Beardall, 20 Utah 2d 287, 437 P.2d 210). On remittitur, the court may reconsider this issue Judgment unanimo......
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Jones v. Jones
...so basic as a roof over the wife's head, they partake of the same nature.' 250 F.Supp. 534. In accord with Baldwin is Collins v. Smith, 26 Ohio Misc. 231, 270 N.E.2d 377 (Ct. of Comm. Pleas, Scioto County, In Remondino v. Remondino, 41 Cal.App.2d 208, 214, 106 P.2d 437, 441 (1940), the cour......
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In re Waller, 73-1609.
...holding that such an award and indemnity did not constitute alimony. The case closest in point to the present case is Collins v. Smith, 26 Ohio Misc. 231, 270 N.E.2d 377 (C.P.Scioto 1971), where the personal property awarded to the wife was mortgaged and the husband had agreed to hold harml......
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Cohen v. Cohen
...suppression effects "no change in the court's authority to award legal expenses incurred after the decree." Accord Collins v. Smith (1971), 26 Ohio Misc. 231, 270 N.E.2d 377 Appellant argues that appellee failed to establish the necessity of an award of attorney fees at either of the hearin......