In re Danley

• Decision Date: 08 October 1981
• Docket Number: Bankruptcy No. 80-01384J.
• Citation: 14 BR 493
• Parties: In re Allen Dwane DANLEY, Alvin Danley, A. Dwane Danley, Dwane Danley, Debtor.
• Court: U.S. Bankruptcy Court — District of New Mexico

14 B.R. 493 (1981)

In re Allen Dwane DANLEY, Alvin Danley, A. Dwane Danley, Dwane Danley, Debtor.

Bankruptcy No. 80-01384J.

United States Bankruptcy Court, D. New Mexico.

October 8, 1981.

Michelle Olszta, Las Cruces, N.M., for debtor.

Wayne A. Jordon, Alamogordo, N.M., for M. Pauline Danley.

ORDER

ROBERT A. JOHNSON, Bankruptcy Judge.

This cause came on to be heard on August 19, 1981, by a conference telephone call. Debtor has filed an application to reopen his estate in order to be accorded relief under 11 U.S.C. § 350(b) (1978), and that Motion was orally denied at the conclusion of the telephone call. A brief review of the background is necessary to an understanding of the disposition of this matter.

Mr. Danley was divorced from his long-time companion and short-time wife by a decree entered in the Twelfth District in Otero County District Court. Under the terms of that decree, Mr. Danley was ordered to pay certain debts of the community. The District Court awarded alimony of $1 per year and indicated that if the debts of the community were paid, his spouse would need no further award. The implication is entirely clear that if the debts were not paid, Mrs. Danley would need additional support or maintenance.

Feeling aggrieved at what the debtor considered an overly generous property settlement for a relatively brief marriage, but recognizing that trial courts in New Mexico are accorded great latitude in making such awards, the debtor did not pursue an appeal. Instead, he opted for a Chapter 7 liquidation in bankruptcy, duly filed, in which a discharge was properly entered on March 23, 1981. No attempt was made to litigate the dischargeability of the payment of the debts as ordered by the state court.

After the discharge, which included a discharge of the debts ordered paid by the Otero County District Court, debtor's exspouse returned to the attack. Having carefully likewise refrained from filing any claims in this court to hold the debts nondischargeable, the ex-spouse instead asked the District Court of Otero County to award additional support, apparently on the ground that the discharge was of itself a sufficient change in circumstance to permit, if not require, some redressing of the marital balance formerly struck. In pursuit of that goal, an Order was entered in the state court on July 31, 1981, which increased alimony in the undoubtedly not coincidental amount of the discharged debts. As a part of that Order, some back payments on the discharged indebtedness were ordered, coupled with the threat of imprisonment for contempt in the event of a failure to comply with the Order. It is the imminence of that threat of imprisonment, apparently the possible result of a hearing to be held on August 20, 1981, which prompted the present motion to reopen, which was filed the morning of August 19, 1981. Due to the exigencies of time, this telephone hearing was held. The parties essentially concurred in the foregoing factual recital, although not, to be sure, in the inferences and conclusions which are scattered about.

The motion to reopen in order to litigate the dischargeability of the alimony awarded should be denied on the grounds set forth below. It is provided by 11 U.S.C. § 350(b) (1978) that a case may be reopened "to accord relief to the debtor." That phrase suggests that if there can be no relief granted, it would be pointless to reopen. That seems a sensible approach, and accordingly our initial inquiry ought to be directed to the issue of whether it is possible to accord relief to the debtor on these facts.

The legal issue presented is whether the state district court has the power to order, as support, the payment of sums which equal the amount of certain debts previously discharged in bankruptcy. Under state law, so long as some alimony is reserved by the trial judge, the trial judge has continuing power to alter or amend the alimony award, McClure v. McClure, 90 N.M. 23, 559 P.2d 400 (1976), either upwards or downwards, as changing circumstances warrant, Unser v. Unser, 86 N.M. 648, 526 P.2d 790 (1974); Gruber v. Gruber, 86 N.M. 327, 523 P.2d 1353 (1974); N.M.Stat.Ann. § 40-4-7 (1978).

The needs of the wife have long been considered as adequate grounds for changing an award previously made. Michelson v. Michelson, 86 N.M. 107, 520 P.2d 263 (1974), rev'd on other...