In re Bible, Bankruptcy No. 90-10048.

CourtUnited States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Georgia
Writing for the CourtJOHN S. DALIS
PartiesIn re James C. BIBLE, Jr., Debtor-in-Possession. Ann W. BIBLE, Movant, v. James C. BIBLE, Jr., Respondent.
Decision Date23 February 1990
Docket NumberBankruptcy No. 90-10048.

110 B.R. 1002 (1990)

In re James C. BIBLE, Jr., Debtor-in-Possession.
Ann W. BIBLE, Movant,
v.
James C. BIBLE, Jr., Respondent.

Bankruptcy No. 90-10048.

United States Bankruptcy Court, S.D. Georgia, Augusta Division.

February 23, 1990.


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John B. Long, Augusta, Ga., for movant.

James D. Walker, Jr., Augusta, Ga., for respondent.

ORDER

JOHN S. DALIS, Bankruptcy Judge.

Before this court is the debtor-in-possession's (hereinafter "debtor") request that this court enjoin the debtor's spouse, Ann W. Bible, from proceeding with an action for separate support and maintenance, equitable division of property, attorney's fees, suit costs and contempt against the debtor which is pending in the Family Court for the Thirteenth Judicial Circuit in Greenville County, South Carolina. In addition, Mrs. Bible moved for relief from stay to allow the domestic actions to continue in South Carolina.

Hearing was held on February 9, 1990. After consideration of the pleadings, evidence presented and the arguments of counsel, this court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. On October 26, 1988, debtor a resident of Richmond County, Georgia, filed an action for divorce in the Superior Court of Richmond County, Georgia (hereinafter "first Georgia action"). The complaint for divorce with summons was served on an employee of Mrs. Bible at Mrs. Bible's residence in Greenville County, South Carolina.

2. On October 27, 1988, Mrs. Bible filed an action for separate maintenance and support, and equitable distribution of marital property in the Family Court for the Thirteenth Judicial Circuit in Greenville County, South Carolina (hereinafter "South Carolina action"). The debtor was personally served with the complaint while temporarily present in South Carolina.

3. On November 18, 1988, a hearing was held before the Family Court in Greenville County, South Carolina for the purposes of determining temporary alimony. On November 21, 1988, the Honorable R. Kinard Johnson, Jr., Judge of the Family Court, entered an order awarding Mrs. Bible the sum of Twelve Thousand and No/100 ($12,000.00) Dollars per month in temporary alimony. An appeal was taken by the debtor to the South Carolina Supreme Court.

4. On December 22, 1988, the Richmond County Superior Court ruled that the service of process on Mrs. Bible's employee constituted valid service on Mrs. Bible and that it had jurisdiction to hear the divorce. Mrs. Bible appealed the order to the Georgia Supreme Court.

5. On February 21, 1989, the Supreme Court of South Carolina granted to the debtor a supersedeas as to the order awarding temporary alimony.

6. On September 6, 1989, the Georgia Supreme Court held that the service on Mrs. Bible's employee was improper and dismissed the first Georgia action. Bible v. Bible, 259 Ga. 418, 383 S.E.2d 108 (1989).

7. On October 4, 1989, the debtor refiled for divorce in the Superior Court of

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Richmond County, Georgia (hereinafter "second Georgia action")

8. On November 22, 1989, the debtor's counsel in the second Georgia action requested that the case be placed on the next calendar for jury trials of divorce actions which was scheduled for February 26, 1990.

9. On December 15, 1989, the South Carolina Supreme Court affirmed the order for temporary alimony and set aside the supersedeas.

10. On or about December 20, 1989, the parties were notified that the South Carolina action would be set for trial on January 15, 1990 before the Honorable Joseph D. Board, Judge of the Family Court. Under the South Carolina Family Court system of rotating judges different judges may hear various aspects of a case. The debtor was also admitted to a hospital in Augusta, Georgia on or about December 20 with an advanced lung disease.

11. On January 2, 1990, Mrs. Bible, by and through her counsel, filed a motion in the South Carolina case seeking to have the debtor held in contempt of court because he failed to pay the temporary alimony awarded by the Family Court. The contempt action was scheduled to be heard at the time of the trial of the underlying action, January 15, 1990.

12. On January 4, 1990, Richmond County Superior Court Judge, the Honorable John H. Ruffin, Jr., dismissed the second Georgia action on the grounds that the court lacked jurisdiction over Mrs. Bible. Debtor's counsel in the second Georgia action has requested reconsideration of the dismissal, but at this time Judge Ruffin has not ruled on that request.

13. On January 10, 1990, the debtor filed for protection in this court under Chapter 11 of Title 11, United States Code.

14. On January 12, 1990, the debtor requested that this court enter a temporary restraining order (TRO) to prevent Mrs. Bible from proceeding with the South Carolina action for separate support and maintenance, equitable division of property, attorneys fees, suit costs and contempt. Hearing was held on that date whereupon Mrs. Bible appeared through counsel and opposed the issuance of a TRO and sought relief from stay. At the conclusion of that hearing, this court entered a TRO restraining Mrs. Bible, her agents and attorneys from prosecuting the South Carolina action.

15. After notice to all parties, this court held a hearing on the request for a preliminary injunction on January 17, 1990, and entered an order enjoining Mrs. Bible, her agents, and attorneys from proceeding with the South Carolina action until this court could consider and rule on her motion for relief from stay and the need for a permanent injunction.

16. The debtor was released from the hospital in late January, 1990. Subsequent to the hearing of February 9, 1990, the debtor has been hospitalized, again, with pneumonia and other lung complications. The debtor is receiving continuous oxygen therapy, and requires continuous medical supervision.

17. Mrs. Bible has a net worth of approximately Two Million ($2,000,000.00) Dollars, and the debtor has a net worth of approximately Seven Million ($7,000,000.00) Dollars. Debtor's schedule B-2 filed in this case listing his personal property shows more than Two Hundred Thousand and No/100 ($200,000.00) Dollars cash on deposit with banking institutions.

CONCLUSIONS OF LAW

In the preliminary injunction order of January 18, 1990, this court found that the action pending in Greenville County, South Carolina was an action to recover money or property from the debtor. The action brought by Mrs. Bible seeks an equitable distribution of the marital property and support or maintenance. The parties have stipulated that all proceedings in the South Carolina action other than the contempt proceedings are covered under the stay provisions of 11 U.S.C. § 362(a).1 As to the

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contempt action, Mrs. Bible argues alternatively that the stay of § 362(a) is inapplicable because pursuant to § 362(b)(1) the filing of a bankruptcy petition does not operate as a stay of the "commencement or continuation of a criminal action or proceeding against the debtor" or pursuant to § 362(b)(2), the stay does not prevent "the collection of alimony, maintenance or support from property that is not property of the estate." Pertaining to the § 362(b)(1) exception, applicability of this code section turns on the civil or criminal nature of the contempt proceeding now pending in the South Carolina action. "Civil contempts are those quasi contempts which consist in failing to do something which the contemnor is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court while criminal contempts are all those acts in disrespect of the court or of its process or which obstruct the administration of justice, or tend to bring the court into disrespect, such as disorderly conduct, insulting behavior in the presence or immediate vicinity of the court, or acts of violence which interrupt its proceedings; also disobedience or resistance of the process of the court, interference with property in the custody of the law, misconduct of officers of the court. . . ." Clamp v. Hall, 287 S.C. 270, 335 S.E.2d 815 (Ct.App.1985) quoting State v. Nathans, 49 S.C. 199, 207, 27 S.E. 52, 55 (1896). "Sanctions for contempt, of course, may entail imprisonment; however, imprisonment for contempt can be remedial as well as punitive (citation omitted). If the punishment is remedial and for the benefit of the complainant, the contempt is civil contempt. Clamp, supra citing Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911). "Imprisonment for contempt is civil where the imprisonment is `clearly intended to operate in a prospective manner — to coerce, rather than punish.'" Clamp, supra quoting Shillitani v. U.S., 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622, 627 (1966)

Any sanction against the debtor for failing to pay the temporary alimony awarded Mrs. Bible including imprisonment, would be to coerce the debtor to make the payments, not punish him for his failure to do so. Mrs. Bible's South Carolina counsel testified at the preliminary injunction hearing that the contempt action was filed to obtain money or property from the debtor and would be dismissed if the debtor paid Mrs. Bible.2 The contempt action is civil in nature and does not fall within the exception for criminal proceedings provided by § 362(b)(1). The civil contempt action is stayed by § 362(a) upon the

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filing of debtor's petition for relief under Chapter 11 of Title 11, United States Code

Pertaining to the § 362(b)(2) exception, in the TRO of January 12, 1990, this court found that the contempt action was "not an attempt to collect alimony from property that is not property of the estate" (emphasis in original order), but is an action brought against the debtor to compel him to pay accrued temporary alimony. The civil action is brought against the debtor to force the debtor, under the possible sanction of imprisonment, to...

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