Cox, In re, No. 76-1336

Decision Date28 October 1976
Docket NumberNo. 76-1336
Citation543 F.2d 1277
PartiesIn re James Wilbur COX, Sr., Bankrupt. Rhea Nita COX, now York, Appellant, v. James Wilbur COX, Sr., Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Bob R. Schick and Cecil W. Rote, Oklahoma City, Okl., for appellant.

James A. Kirk and Charles Bennett Lord, Linn, Helms, Kirk & Burkett, Oklahoma City, Okl., for appellee.

Before PICKETT, McWILLIAMS and DOYLE, Circuit Judges.

PICKETT, Circuit Judge.

This is an appeal from an order of the United States District Court for the Western District of Oklahoma affirming a judgment of the bankruptcy court which held that under Oklahoma law an award in a divorce action was a property settlement and dischargeable in bankruptcy.

On January 4, 1973, the Oklahoma County, Oklahoma, state district court granted a divorce to James Wilbur Cox, Sr. and Rhea Nita Cox. The divorce decree made provision for the division of specified real and personal property, and also contained the following provision:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED by the Court that plaintiff pay alimony to the defendant in the total sum of $16,800.00, payable in installments of $100.00 each on the 1st and 15th days of each and every month for a total sum of $200.00 per month, payable for eighty-four months beginning on the 15th day of January, 1973.

Cox made the alimony payments through May 1, 1974, when he discovered that his former wife had remarried, whereupon he made application for a termination of the alimony payments and for recovery of the payments made subsequent to the remarriage. The divorce court concluded that the alimony payments should be treated as a division of property and not for support and maintenance, and that consequently, under Oklahoma statutes, the payments did not terminate upon remarriage of the wife. 1 No appeal was taken from that decision.

On February 7, 1975, Cox filed his Voluntary Petition in Bankruptcy, listing his former wife as one of his creditors. On March 20, 1975, Mrs. Cox, now Mrs. York, instituted proceedings in the bankruptcy court for a determination that the alimony judgment be excepted from discharge as provided for in 11 U.S.C. § 35(a)(7). In response, the bankrupt alleged that the lump sum alimony, although payable in monthly installments, was part of a property settlement and dischargeable in bankruptcy. After a hearing the bankruptcy court construed the divorce decree the same as did the state district court, holding that the alimony provision should be treated as a division of property and dischargeable in bankruptcy. On appeal the United States district court affirmed the judgment of the bankruptcy judge. The basic question is whether, under Oklahoma law, the obligation of a lump sum alimony judgment payable in monthly installments pertains to a division of property and is dischargeable in bankruptcy.

11 U.S.C. § 35(a) provides that a discharge in bankruptcy shall release a bankrupt from all provable debts, except such as "(7) are for alimony due or to become due, or for maintenance or support of a wife or child . . . ." It is general law that obligations created by property settlements or division of property of the parties to a divorce action are not within the exceptions of Section 35(a)(7) and are dischargeable in bankruptcy. Caldwell v. Armstrong, 342 F.2d 485 (10th Cir. 1965); Goggans v. Osborn,237 F.2d 186, 16 Alaska 451 (9th Cir. 1956); 9 Am.Jur.2d Bankruptcy § 793; cases collected in Anno. 74 A.L.R.2d 758.

12 O.S. § 1289(b) provides, in part:

In any divorce decree entered after December 31, 1967, which provides for periodic alimony payments, the Court, at the time of entering the original decree, only, may designate all or a portion of each such payment as support, and all or a portion of such payment as a payment pertaining to a division of property. Upon the death of the recipient, the payments for support, if not already accrued, shall terminate, but the payments pertaining to a division of property shall continue until completed; and the decree shall so specify. The payments pertaining to a division of property shall be irrevocable. . . . The Court shall also provide in the divorce decree that any such support payments shall terminate after remarriage of the recipient, unless the recipient can make a proper showing that said support is still needed and that circumstances have not rendered payment of the same inequitable . . . .

The divorce decree in the instant case did not designate that any portion of the periodic alimony payments should be for support or that any portion thereof was a payment pertaining to the division of property, nor did it provide that the payments should discontinue upon the remarriage or the death of the recipient.

Although alimony is usually defined as an allowance of money required to be paid by a former husband to a divorced wife for support and maintenance, Webster's Unabridged Dictionary; 3 Words and Phrases, Alimony; a different connotation appears to have been given by the Oklahoma courts in construing Section 1289 of the Oklahoma Statutes. In Shea v. Shea, 537 P.2d 417 (Okl.1975), the Oklahoma Supreme Court rejected an argument to the effect that when a divorce decree provides for designated periodic...

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