In re Hart

Decision Date03 July 1991
Docket NumberAdv. No. 90-6162.,Bankruptcy No. 90-61253
Citation130 BR 817
PartiesIn re Gregory George HART, Debtor. Thomas N. LESLIE, Plaintiff, v. Gregory George HART, Defendant.
CourtU.S. Bankruptcy Court — Northern District of Indiana



Pat Engels, Lowell, Ind., for debtor.

Thomas Leslie, pro se.



I Statement of Proceedings

This Adversary Proceeding came before the Court for hearing on March 26, 1991 on a Motion for Summary Judgment filed by Plaintiff, Thomas N. Leslie, (hereinafter: "Plaintiff") on December 10, 1991. The Plaintiff filed his brief in support of his motion and an affidavit by Terri Hart in support thereof on January 15, 1991.

An Objection to said Motion for Summary Judgment was filed by the Defendant-Debtor, Gregory George Hart (hereinafter: "Defendant") on January 16, 1991, together with supporting brief. The Defendant filed his affidavit in opposition to the Plaintiff's Motion for Summary Judgment on January 30, 1991.

The Plaintiff's complaint in part alleges as follows:

2. That on or about the 6th day of March, 1990, a Decree of Dissolution of Marriage with Property Settlement Agreement incorporated was entered in the Marion Superior Court, Civil Division, Room No. 2, Indianapolis, Indiana, under cause number 49D02-8901-DR-0125.
3. That said Property Settlement Agreement contains the following provision:
4.C.6. As further support and due to the sparsity of the marital assets being set over to the Wife, and in order to balance the relative incomes of the parties in light of the fact that Wife is receiving custody of the minor child, husband shall pay Wife\'s attorney\'s fees in this cause to her Attorney Thomas N. Leslie in the total sum (including preliminary attorney\'s fees) of Two Thousand Six Hundred Dollars ($2,600.00), reduced to judgement to be paid at the rate of Fifty Dollars ($50.00) per month, until paid in full, however, balance shall be paid in full twelve (12) months from the date of Decree. Said judgment shall not bear interest so long as payments are made in a timely fashion, first payment shall be due March 1 1990. (Emphasis supplied).
4. That said indebtedness has been made a part of the Schedules and Petitions of the debtor, Gregory George Hart, in the above-captioned bankruptcy.
5. That said indebtedness is not dischargeable pursuant to 11 U.S.C. ž 523(a)(5).
* * * * * *
7. That on the 9th day of May, 1990, Debtor made one payment in the amount of $100.00 to Plaintiff of which $45.59 was applied to interest and $54.41 was applied to principal.
8. That since May 9, 1990, interest has continued to accrue on the outstanding balance of $2,545.59 at the rate of 10% per annum.

It should also be noted that Clause 4 of Property Settlement Agreement which is captioned, "Custody of the Child and Provision for Support and Maintenance", which was approved by the State Court by the Dissolution Decree, provided at Clause 4.A.1, that the Defendant's ex-spouse would have custody of the minor child of the parties, and at Clause 4.C.1, that the Defendant would pay child support at the rate of $136.00 per month.

Clause 4.C.2 expressly recited that "Due to the fact that husband's gross income is substantially more than wife's, as further support, husband shall, subject to the granting of a decree of dissolution, assume payments owed by the parties to.... Community Hospital." Pursuant to Clauses 4.C.4 and 4.C.5 the Defendant agreed to pay for medical, dental, vision, and optical expenses not covered by insurance, and maintain $75,000.00 in life insurance with the child as beneficiary.

The provisions of the Property Settlement Agreement relating to the division of property were dealt with separately under Clause 3, captioned, "Division of Property".

The Defendant filed an answer on November 7, 1990 admitting the Plaintiff's allegation as to jurisdiction, the Marriage Dissolution, the Property Settlement Agreement, and the Scheduling of the Plaintiff as a creditor. However, the Defendant denied that the attorney's fees awarded by the State Court to the Plaintiff in the Dissolution Decree approving the Property Settlement Agreement between the Defendant and his ex-spouse Terri Lee Turner Hart (hereinafter: "Defendant's ex-spouse") is nondischargeable as being in the nature of support pursuant to ž 523(a)(5).

Plaintiff appears pro se.

Defendant appears by counsel.

Submitted. Arguments heard.


Conclusions of Law and Discussion

A General Principles Relating to Summary Judgment

No objections were made by the parties to the jurisdiction of this Court and the Court finds this is a core proceeding pursuant to 28 U.S.C. ž 157.

The granting of a motion for summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

The moving party, in making a motion for summary judgment, "has the burden of establishing the lack of a genuine issue of material fact." Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984).

When ruling on a motion for summary judgment, inferences to be drawn from underlying facts contained in such materials as attached exhibits, and depositions must be viewed in a light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); See also, Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215 (7th Cir. 1984).

By entering a summary judgment for a party, the court is concluding that based on the evidence upon which the non-moving party intends to rely at trial, no reasonable jury could return a verdict for the non-moving party. Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985); Weit v. Continental Illinois National Bank & Trust Co., 641 F.2d 457, 461 (7th Cir.1981), cert. den., 455 U.S. 988, 102 S.Ct. 1610, 71 L.Ed.2d 847 (1982).

Once a moving party has met its initial burden, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" and that the disputed fact is material. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983), cert. den., 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Thus, if the movant carries his initial burden, the opposing party may not defeat the motion by merely relying on the contentions of its pleadings, but must produce significant probative evidence to support its position. First National Bank v. Cities Service Co., 391 U.S. 253, 289-90, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968); United States v. Pent-R Books, Inc., 538 F.2d 519 (2nd Cir.1976), cert. den. 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977).

In Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.1987), the Seventh Circuit addressed exactly what a party must demonstrate to show the existence of a genuine issue of fact precluding summary judgment. The Court stated:

A genuine issue for trial only exists when there is sufficient evidence favoring the nonmovant for a jury to return a verdict for that party. As the Supreme Court has stated, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." We must not weigh the evidence. Instead, we must see if the non-movant\'s evidence is sufficient. In determining whether evidence is sufficient, we must of necessity consider the substantive evidentiary standard of proof, for example, preponderance of the evidence, that would apply at a trial on the merits. In addition, we draw all inferences in favor of the nonmovant. Such inferences, however, must be "justifiable". (Citations and footnote omitted).

In reaching its determination, the Court has the power to penetrate the allegations of fact in the pleadings and look to any evidential source to determine whether there is an issue of fact to be tried. Parmelee Transportation Co. v. Keeshin, 292 F.2d 794 (7th Cir.1961).

The Seventh Circuit in Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.1983) (en banc) cert. den. 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983), held that to preclude a summary judgment, the non-moving party must show the disputed fact to be material. That is, it must be outcome-determinative under applicable law. Thus, facts not outcome-determinative under applicable law, though in dispute, may permit the entry of a summary judgment. In Mintz v. Mathers Fund, Inc., 463 F.2d 495, 498 (7th Cir.1972), the Court stated that, "appellate courts should not look the other way to ignore the existence of the genuine issues of material facts, but neither should they strain to find the existence of genuine issues where none exists." See also, Kirk v. Home Indemnity Company, 431 F.2d 554 (7th Cir.1970).


Materials to be Considered on Motion for Summary Judgement

Federal Rules of Civil Procedure 56(c) provides as follows:

(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith 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 a judgment as a matter of law. A summary judgment, interlocutory in character may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. (Emphasis added).

Thus, pursuant to Fed.R.Civ.P. 56(c) the Court may consider all papers of record as specified therein. Federacion de Empleados Del Tribunal General de Justicia v. Torres, 747 F.2d 35 (1st Cir.1984); Allen v. Carlotti, 400 F.Supp. 1037 (S.D.Fla.1975), aff'd., 552...

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