In re Harrod, Bankruptcy No. 3-81-00781

• Decision Date: 15 January 1982
• Docket Number: Adv. No. 3-81-0246.,Bankruptcy No. 3-81-00781
• Citation: 16 BR 711
• Parties: In re William D. HARROD, Debtor. Myrtle B. HARROD, Plaintiff, v. William D. HARROD, Defendant.
• Court: U.S. Bankruptcy Court — Western District of Kentucky

16 B.R. 711 (1982)

In re William D. HARROD, Debtor Myrtle B. HARROD, Plaintiff, v. William D. HARROD, Defendant.

Bankruptcy No. 3-81-00781, Adv. No. 3-81-0246.

United States Bankruptcy Court, W.D. Kentucky.

January 15, 1982.

Phyllis Deeb Lohman, Louisville, Ky., for plaintiff.

Jack A. Wheat, Louisville, Ky., for defendant-debtor.

MEMORANDUM AND ORDER

STEWART E. BLAND, Bankruptcy Judge.

This bankruptcy case comes before the Court on complaint of Myrtle B. Harrod, by counsel, seeking a determination that certain debts owed by the defendant-debtor pursuant to a Decree of Dissolution of Marriage entered by the Jefferson Circuit Court, Jefferson County, Kentucky, on or about November 12, 1980, be declared nondischargeable pursuant to 11 U.S.C. § 523(a)(5). Originally, the debts in controversy included one for maintenance owing to plaintiff, and the contribution owed to plaintiff in the amount of $500.00 toward her attorney's fees awarded pursuant to the decree. By order of this Court dated July 15, 1981, those specific debts have been determined to be nondischargeable.

The issue before the Court, then, is a determination of the character and dischargeability of liabilities relating to court costs and the defendant's obligation of making payments on an automobile awarded to the plaintiff under the Decree of Dissolution.

The facts pertinent to the issue in question are uncontroverted and may be briefly recited as follows:

On or about November 12, 1980, the Jefferson Circuit Court, Jefferson County, Kentucky, entered a decree dissolving the marriage of plaintiff and defendant-debtor herein. The decree incorporated Findings of Fact and Conclusions of Law entered on October 22, 1980, resolving issues relating to the parties' pension plans, future maintenance, and awards of attorney's fees and costs.

Paragraph 4 of the decree awarded to the plaintiff a 1978 Ford Fairmont automobile with the defendant assuming and paying the indebtedness owed on this vehicle. The defendant was to hold the plaintiff harmless on this indebtedness.

Other debts were apportioned to the parties by paragraph 7 of the decree which provided that the plaintiff was responsible for a debt owed to Woolco and the defendant was liable for a Master Charge obligation and any other marital debt.

Paragraph 9 of the decree provides specific maintenance for the plaintiff in the amount of $50.00 per week for a period of two years. The October 22, 1980, Findings of Fact and Conclusions of Law explain the maintenance award in paragraph 2) as:

"This is a marriage of eleven plus years duration with no children. The wife was 37 years old at the time of marriage, so it is not reasonable to attribute any limitation on her ability to earn money to her having sacrificied sic her ability to develop earning skills to the marriage. The husband has a skilled occupation with gross pay of about $415 per week. The wife\'s pay is only $105 per week. We think that the husband\'s responsibility for maintenance should be limited to only a short time. We find no facts to justify requiring future support indefinitely, but only intend to impose maintenance for sufficient time so the wife can make a post divorce adjustment to her new financial circumstances. Respondent is ordered to pay $50 per week for two years."

Regarding attorneys fees and court costs the Findings and Conclusions state: "After a 50% each division of the net marital assets, each party will have an estate of their own, but the amount will be relatively small. We think that, considering both the relatives sic earning power and the post divorce estate, the husband should pay all the court costs. . . ."

Subsequently, on March 20, 1981, the debtor filed a bankruptcy petition under the provisions of Chapter 7 of the Bankruptcy Code. Plaintiff filed a complaint seeking a determination that the debtor's obligations owed in the form of court costs and automobile payments owed to Citizens Fidelity Bank for the vehicle awarded to plaintiff pursuant to the divorce decree are nondischargeable as maintenance and support for the plaintiff.

The United States Bankruptcy Court has jurisdiction of the parties and the subject matter of this controversy pursuant to 28 U.S.C. § 1471.

Section 523(a)(5), 11 U.S.C. § 523(a)(5), provides in pertinent part:

A discharge under section 727, 1141 or 1328(b) of this title does not discharge an individual debtor from any debt . . . (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of both spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that—

(A) Such debt is assigned to another entity, voluntarily, by operation of law, or otherwise; or

(B) Such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support.

The commentary to this section of the Bankruptcy Code provides that "paragraph (5) excepts from discharge debts to a spouse, former spouse, or child of the debtor for alimony to, maintenance for, or support of, the spouse or child. This language, in combination with the repeal of section 456(b) of the Social Security Act (42 U.S.C. 656(b)) by section 328 of the bill, will apply to make nondischargeable only alimony, maintenance, or support owed directly to a spouse or dependent. See Hearings, pt. 2, at 942. What constitutes alimony, maintenance, or support, will be determined under the bankruptcy laws, not State law. Thus, cases such as In re Waller, 494 F.2d 447 (6th Cir. 1974), Hearings, pt. 3, at 1308-10, are overruled, and the result in cases such as Fife v. Fife, 1 Utah 2d 281, 265 P.2d 642 (1952) is followed. This provision will, however, make nondischargeable any debts resulting from an agreement by the debtor to hold the debtor's spouse harmless on joint debts, to the extent that the agreement is in payment of alimony, maintenance, or support of the spouse, as determined under bankruptcy law considerations that are similar to considerations of whether a particular agreement to pay money to a spouse is actually alimony or a property settlement. See Hearings, pt. 3, at 1287-1290." H.Rep. No.95-595, 95th Cong., 1st Sess., 364 (1977); see also In Re Allen, 4 B.R. 617, 6 BCD 576, 577 (Bkrtcy.E.D.Tenn.1980).

A bankruptcy court ". . . is not confined to a review of the judgment and record in a prior state court proceeding when considering the dischargeability of respondent's debt." In Re...