In re Jodoin

Decision Date02 May 1997
Docket NumberBAP No. EC-96-1514-RyOH,Adv. No. 95-2135-C.,Bankruptcy No. 94-29190-C-7
Citation209 BR 132
PartiesIn re V. Douglas JODOIN, M.D., Debtor. V. Douglas JODOIN, M.D., Appellant, v. Christine C. SAMAYOA, Appellee.
CourtU.S. Bankruptcy Appellate Panel, Ninth Circuit

Nancy Page, Page & Sohnen, Walnut Creek, CA, for V. Douglas Jodoin, M.D.

Wayne A. Knight, Fairfield, CA, for Christine C. Samayoa.

Before: RYAN, OLLASON and HAGAN, Bankruptcy Judges.


RYAN, Bankruptcy Judge:

Plaintiff-Appellee Christine Samayoa, formerly Jodoin ("Plaintiff"), filed a complaint (the "Complaint") against Defendant-Appellant Douglas Jodoin, M.D. ("Defendant") under Bankruptcy Code (the "Code")1 § 523(a)(15) seeking to have a state court marital dissolution judgment for $44,082 (the "Judgment") declared nondischargeable. After a trial on the merits of the Complaint, the bankruptcy court held that the Judgment was nondischargeable under Code §§ 523(a)(5) and (a)(15). Defendant appealed. We AFFIRM the bankruptcy court.


On May 13, 1982, Plaintiff and Defendant were married. They had one child during their union. In August 1991, they divorced pursuant to a bifurcation order. After their divorce, Plaintiff and Defendant were parties to a state court action concerning the dissolution of their marital estate and the awarding of support. On November 28, 1994, after a trial, the family law court issued the Judgment, awarding Plaintiff $44,082.2

On November 15, 1994, Defendant filed a chapter 7 bankruptcy. Defendant is a primary care physician who is employed at an annual salary of $125,000, plus a bonus based on his billings. He and his new wife receive $7,200 per year in child support for her two children. Within three months of his bankruptcy filing, Debtor moved to a new house with an option to purchase for $300,000. His rent is $2,200 per month. He and his wife lease two vehicles for $880 per month. Their telephone bill is $500 per month. In 1995, they vacationed at a resort.

Plaintiff is a registered nurse working in a neonatal care unit. She earns approximately $44,000 per year as an hourly employee. Her spouse is a self-employed real estate professional whose income in 1995 was negligible due to the poor real estate market. They receive $710 per month from Defendant for child support. They also took a vacation at a resort in 1995.

On February 17, 1995, Plaintiff filed the Complaint seeking to declare the Judgment nondischargeable under Code § 523(a)(15).3 A trial was held on the Complaint on February 15, 1996.

On May 16, 1996, the bankruptcy court issued a memorandum decision and entered a judgment holding $42,884 of the Judgment nondischargeable under § 523(a)(5) and the remaining $1,1984 nondischargeable under § 523(a)(15). See Samayoa v. Jodoin, M.D. (In re Jodoin), 196 B.R. 845, 851-52 (Bankr. E.D.Cal.1996).

On May 24, 1996, Defendant timely filed his notice of appeal from the bankruptcy court's judgment.


1. Whether the bankruptcy court erred in holding that part of the Judgment was nondischargeable under § 523(a)(5) when the Complaint only stated a cause of action under § 523(a)(15).

2. Whether the bankruptcy court erred in finding that $42,884 of the Judgment constituted child and spousal support that was nondischargeable under § 523(a)(5).

3. Whether the bankruptcy court erred in holding that Defendant (debtor) had the burden of proof regarding subsections (A) and (B) of § 523(a)(15).

4. Whether the bankruptcy court erred in finding $1,198 of the Judgment nondischargeable under § 523(a)(15).


We review the bankruptcy court's findings of fact for clear error and the court's conclusions of law de novo. Neben & Starrett v. Chartwell Fin. Corp. (In re Park-Helena Corp.), 63 F.3d 877, 880 (9th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 712, 133 L.Ed.2d 667 (1996) (citing Sousa v. Miguel (In re United States Trustee), 32 F.3d 1370, 1372 (9th Cir.1994)). To the extent that questions of fact cannot be separated from questions of law, we review these questions as mixed questions of law and fact applying a de novo standard. Ratanasen v. California Dep't of Health Servs., 11 F.3d 1467, 1469 (9th Cir.1993).

A denial of a discharge by the bankruptcy court is reviewed under the gross abuse of discretion standard. Finalco, Inc. v. Roosevelt (In re Roosevelt), 87 F.3d 311, 314 (9th Cir.1996) (quoting Cox v. Lansdowne (In re Cox), 904 F.2d 1399, 1401 (9th Cir.1990) ("In the context of discharges we have applied a more deferential standard. . . . `We disturb discharge decisions . . . only if we find a gross abuse of discretion.'")) Stout v. Prussel, 691 F.2d 859, 861 (9th Cir.1982); Shaver v. Shaver (In re Shaver), 736 F.2d 1314, 1316 (9th Cir.1984).

A specific determination under § 523(a)(5) that the debt in question was for maintenance, alimony, or support is considered a factual one which is reviewed under the clearly erroneous standard. Gard v. Gibson (In re Gibson), 103 B.R. 218, 220 (9th Cir. BAP 1989) (citing Long v. Calhoun (In re Calhoun), 715 F.2d 1103, 1110 (6th Cir. 1983)).

Issues of statutory interpretation are questions of law which we review de novo. County of El Dorado v. Crouch (In re Crouch), 199 B.R. 690, 691 (9th Cir. BAP 1996) (citing Acequia, Inc. v. Clinton (In re Acequia, Inc.), 787 F.2d 1352, 1357 (9th Cir.1986)).

A. The Bankruptcy Court Did Not Err In Holding That The Parties Implicitly Consented To A § 523(a)(5) Determination.

The Complaint only stated a § 523(a)(15)5 cause of action. However, the bankruptcy court held that $42,884 of the Judgment was nondischargeable under § 523(a)(5).6 In reaching this holding, the bankruptcy court cited three separate lines of reasoning: the natural intermingling of §§ 523(a)(5) and (a)(15); Federal Rule of Civil Procedure ("FRCP") 15(b) (made applicable to adversary proceedings pursuant to Federal Rule of Bankruptcy Procedure ("FRBP") 7015); and FRCP 54(c) (made applicable to adversary proceedings pursuant to FRBP 7054). See Jodoin, 196 B.R. at 851-52.

Generally, a party cannot succeed on a cause of action not stated in the complaint.7 See generally Acequia, Inc. v. Clinton (In re Acequia, Inc.), 34 F.3d 800, 814 (9th Cir.1994) hereinafter Acequia II (quoting Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 466 (9th Cir.1990) ("The main purpose of the complaint is to provide notice of what the plaintiff's claim is and the grounds upon which the claims rest. . . . The plaintiff must at least set forth enough details so as to provide defendant and the court with a fair idea of the basis of the complaint and the legal grounds claimed for recovery."); Save Lake Washington v. Frank, 641 F.2d 1330, 1339 (9th Cir.1981)). However, FRCP 15(b)8 permits the parties to consent implicitly to amendments to the pleadings based on the actual trial. FRCP 15(b) is to be construed liberally. See 6A Charles Alan Wright, Federal Practice and Procedure § 1491 (2d ed.1990); 3 James Wm. Moore, et. al, Moore's Federal Practice ¶ 15.132 (1996).

At trial, both the § 523(a)(5) and § 523(a)(15) issues were raised. Plaintiff's counsel on several occasions argued that certain parts of the debt were nondischargeable under § 523(a)(5).9 Additionally, Plaintiff provided percipient testimony that specifically classified certain portions of the Judgment as spousal and child support.

For example, early in the trial, Mr. McPherson, Plaintiff's family law counsel, testified as follows:

Q: Now, do you recall what the — as close as you can approximate — the actual amount of arrearages that was owing for child and spousal support at the time the court made its final determination with offsets for property division and so forth?
A: The final figure is — as I recall, was $42,000 in child and spousal support that was owed sic But that is a number of complicated calculations because the support each year varied. The law changed in 1993. `Significant other\' was not included as income. There were a fairly substantial number of factors that had to go into the dissomaster in order to determine the actual amount of child support for each individual year. But I believe the judgment shows that the arrearages at that time was — the final bottom line figure was $42,000.

Transcript of Bankruptcy Court Trial at 45:3-17 (emphasis added).10 Defendant had earlier in the trial waived all relevancy objections to this testimony. Transcript of Bankruptcy Court Trial at 21:11-13.11

Finally, Plaintiff's counsel, in his closing statement, stated that he believed that at least $35,040 of the Judgment represented support that was nondischargeable under § 523(a)(5). He stated:

The evidence that has come forward in this case is unrefuted that the $35,040 dollars, whatever, that\'s listed on the attachment to the judgment after trial which was unrefunded is past due child support and spousal support after the testimony of Mr. McPherson that, in fact, there was no rebutting testimony whatsoever.
There was testimony that the attorney\'s fees, while not the total attorney\'s fees in the whole case, but attorney\'s fees were clearly for child support and spousal support to enforce or establish those. And that\'s court costs and the cost of the expert, the C.P.A., was again, your Honor, for establishing child support or spousal support.
So I think clearly this is a(5).

Transcript of Bankruptcy Court Trial at 170:4-18 (emphasis added).

Defendant's counsel did not object to this argument. In fact, in her closing argument, Defendant's counsel admitted:

I don\'t find any problem with separating out any aspect of the attorney\'s fees actually relating to child support. I agree that the sic that\'s nondischargeable automatically. But no evidence has been issued or shown here today that bears on that point sic all that would allow the Court to make such a determination in any event.

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