In re Gray

• Decision Date: 06 April 2005
• Docket Number: Adversary No. 04-40444-JSS.,Bankruptcy No. 04-42900-JSS-7.
• Citation: 322 B.R. 682
• Parties: In re Kenneth Manuel GRAY, Debtor. Tanya Gray & Lydia Gray, Plaintiffs, v. Kenneth Manuel Gray, Defendant.
• Court: U.S. Bankruptcy Court — Northern District of Alabama

322 B.R. 682

In re Kenneth Manuel GRAY, Debtor.

Tanya Gray & Lydia Gray, Plaintiffs, v. Kenneth Manuel Gray, Defendant.

Bankruptcy No. 04-42900-JSS-7.

Adversary No. 04-40444-JSS.

United States Bankruptcy Court, N.D. Alabama, Eastern Division.

April 6, 2005.

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Tameria Shaye Driskill, Gadsden, AL, for Debtor.

MEMORANDUM OPINION

This Adversary Proceeding comes before the Court on the Motion for Summary Judgment filed by Plaintiffs for a determination of dischargeability of a debt for willful and malicious injury by the Debtor under 11 U.S.C. § 523(a)(6). In support of the Motion for Summary Judgment, the Plaintiffs rely on the transcripts, depositions, and exhibits from the state court civil proceeding in which both Plaintiffs received money judgments against Defendant, and the criminal guilty plea of Defendant in a state criminal proceeding. Both the civil and criminal proceedings stem from acts of sexual abuse by the Defendant upon his daughter, Plaintiff Lydia Gray.

Plaintiffs rely primarily on the preclusive effect of the state civil court judgment and the criminal guilty plea of the Defendant in a state criminal proceeding. This Court took the matter under advisement and now renders its findings of fact and conclusions of law as set forth in this Memorandum Opinion in accordance with Fed. R. Bankr.P. 7056, applying Fed.R.Civ.P. 56.

JURISDICTION

Plaintiffs seek a determination in this adversary proceeding of the dischargeability of a debt resulting from an allegedly willful and malicious act or acts of the Defendant Debtor. Pursuant to 28 U.S.C. §§ 157(a), 1334(a), 1334(e), and the Standing Order of Reference in the Northern District of Alabama (Ord.Ref.(N.D.Ala. July 17, 1984)), this Court has original and exclusive jurisdiction to hear and determine all cases under Title 11. This Adversary Proceeding is brought under 11 U.S.C. §§ 523(a)(6), 523(c) and Fed. R. Bankr.P. 7056, and the order of reference in this case has not been withdrawn; thereby, in accordance with 28 U.S.C. § 157(b)(1), this Court possesses original and exclusive jurisdiction to determine the dischargeability of this debt. In accordance with 28 U.S.C. § 157(b)(2)(I) this Adversary Proceeding constitutes a core proceeding in which this Court is empowered to enter appropriate orders and judgments. Venue of this Adversary Proceeding is proper and has not been challenged. See 28 U.S.C. § 1409(a). Thereby, this Court concludes that subject matter, in personam, and in rem jurisdiction are proper in this tribunal.

STANDARD FOR SUMMARY JUDGMENT

Federal Rule of Bankruptcy Procedure 7056(c), applying Federal Rule of Civil Procedure 56(c), provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Bankr.P. 7056(c), applying Fed.R.Civ.R. 56(c); See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden rests on the moving party to clearly establish the absence of a genuine issue as to any material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

FACTUAL BACKGROUND

During the marriage of Defendant and former spouse Tanya Gray, Defendant fondled his then nine-year-old daughter, Lydia Gray, on numerous occasions, in the family's living room under a blanket, while other members of the family were present, including mother Tanya Gray. Lydia Gray later informed her mother Tanya Gray of the abuse. When confronted by the Dekalb County, Alabama, Department of Human Resources, Defendant readily admitted that the acts of sexual abuse had occurred, a position that Defendant did not change throughout the criminal and civil proceedings.¹

On June 18, 1993, Defendant was indicted for Sexual Abuse in the First Degree upon his daughter Lydia Gray (hereinafter, the "criminal case"). On July 1, 1994, Defendant pled guilty to the offense of Assault in the Second Degree, upon the indictment being orally amended by agreement. Defendant was sentenced to three years incarceration. Defendant applied for, and was granted, probation.

On March 31, 1999, Tanya Gray, individually, sued Defendant for intentional infliction of emotional distress, and Tanya Gray, as next friend of Lydia Gray, sued Defendant for assault and battery and for intentional infliction of emotional distress in the Circuit Court of Dekalb County, Alabama, Case No. CV-99-115 (hereinafter, the "civil case"). A jury found in favor of Plaintiffs on the one count brought by Tanya Gray and on both counts brought on behalf of Lydia Gray. Plaintiffs were each awarded money judgments against Defendant, and the money judgments give rise to Plaintiffs' claims in Defendant's bankruptcy case. Lydia Gray has a judgment in the amount of $40,000.00 against the Defendant, with $20,000 of the judgment being compensatory and $20,000 being punitive. Tanya Gray has a judgment in the amount of $10,000.00 against the Defendant, with $5,000 being compensatory and $5,000 being punitive. The Judgment was entered on September 5, 2000.

Defendant filed for Chapter 7 relief in this Court on August 27, 2004. Plaintiffs filed this adversary proceeding against Defendant on October 8, 2004, seeking to have the debts owed to them declared nondischargeable pursuant to 11 U.S.C. § 523(a)(6).

On February 15, 2005 Plaintiffs filed this Motion for Summary Judgment and a Memorandum of Law in support thereof. Plaintiffs have provided the Court with a thorough record to support their Motion. The Motion seeks summary judgment based on: the pleadings in this adversary proceeding, the statement given by Kenneth Manuel Gray to the Dekalb County, Alabama, Department of Human Resources on April 12, 1993 (Exhibit A), a certified copy of the June 18, 1993, criminal Indictment against Defendant (Exhibit B), a certified copy of the case action summary of the case against Defendant pursuant to the June 18, 1993 Indictment (Exhibit C), a certified copy of the Civil Complaint against the Defendant in the Circuit Court of Dekalb County, Alabama, Case No. CV-99-115 (Exhibit D), the Deposition of Defendant taken in the civil case (Exhibit E), a certified copy of the testimony of Defendant given in the civil case (Exhibit F), a certified copy of the testimony of Tanya Gray in the civil case (Exhibit G), a certified copy of the trial testimony of Lydia Gray in the civil case (Exhibit H), a certified copy of the jury charge in the civil case (Exhibit I), a certified copy of the Judgment entered in the civil case on September 5, 2000 (Exhibit J), the admissions of Defendant in this adversary proceeding (Exhibit K), a copy of the 1993 text of the Alabama Code § 13A-6-21, Assault in the Second Degree, the offense to which Defendant plead guilty (Exhibit L).

DISCUSSION AND ANALYSIS

Although Plaintiffs argue that the judgment entered in the civil case and the conviction upon the Defendant's entry of a guilty plea in the criminal case are sufficient to provide issue preclusion on all issues in this adversary proceeding, they also provide the Court with the record of the civil case, which provides facts necessary for the entry of judgment in favor of Plaintiffs.

The preclusive effect of the disposition of both cases will be discussed to determine whether they are dispositive as to the nondischargeability of the money judgments under 11 U.S.C. § 523(a)(6). The Court will then consider whether the substantial information in the record meets the standard for granting summary judgment where collateral estoppel is not dispositive.

I. Requirements of a Claim Under 11 U.S.C. §§ 523(a)(6).

Section 523(a)(6) of the Bankruptcy Code provides:

(a) A discharge under Section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt —

. . .

(6) for willful and malicious injury by the debtor to another entity or the property of another entity.

11 U.S.C. § 523(a)(6).

In a case in which this Court faced substantially similar legal issues, this Court in, In re Jenkins, set forth a four factor test for the determination of nondischargeability under Section 523(a)(6) of the Bankruptcy Code.² See In re Jenkins, 258 B.R. 251 (Bankr.N.D.Ala.2001). This Court stated as follows:

To be successful in establishing that a particular debt qualifies for the exception to a discharge for a debt that accrues as a result of a "willful and malicious injury by the debtor," under 11 U.S.C. § 523(a)(6), the creditor as plaintiff must prove, by a preponderance of the evidence, that:

(1) the Debtor committed a wrongful and intentional act;

(2) the act necessarily (proximately) caused the injury to the creditor;

(3) the Debtor acted with the specific intent to cause injury; and

(4) the act of the Debtor was without just cause or excuse.

In re Jenkins, 258 B.R. at 257 (citing See Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (clarifying that there is a specific intent requirement); Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)(clarifying that the standard of proof in dischargeability complaints is the preponderance of the evidence standard and not clear and convincing); see also, Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934); McIntyre v. Kavanaugh, 242 U.S. 138, 37 S.Ct. 38, 61 L.Ed. 205 (1916); Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754, (1904)(quoting Bromage v. Prosser, 4 Barn. & Cress. 247, 107 Eng. Rep. 1051 (K.B.1825)(defining malice)).; Hoskins v. Yanks (In re Yanks), 931 F.2d 42 (11th Cir.1991); Lee v. Ikner (In re Ikner), 883 F.2d 986 (11th Cir.1989); Sunco Sales, Inc. v. Latch (In re Latch), 820 F.2d 1163 ...