In re Molino, BAP No. 98-8009.
| Citation | 225 BR 904 |
| Decision Date | 04 November 1998 |
| Docket Number | BAP No. 98-8009. |
| Parties | In re Joseph A. MOLINO, Debtor. Anna M. HART, Plaintiff-Appellee, v. Joseph A. MOLINO, Defendant-Appellant. |
| Court | Bankruptcy Appellate Panels. U.S. Bankruptcy Appellate Panel, Sixth Circuit |
Gregory D. Port, Comisford & Port, LLP, Columbus, OH, argued and on brief, for Appellant.
Thomas E. Friedman, Yavitch & Palmer, Columbus, OH, argued and on brief, for Appellee.
Before: BAXTER, LUNDIN, and RHODES, Bankruptcy Appellate Panel Judges.
This appeal concerns the dischargeability of debts that arose out of a property settlement incorporated in a decree of dissolution of marriage wherein the Plaintiff, Anna Hart, was to be held harmless by the Debtor. The bankruptcy court determined the debts to be nondischargeable pursuant to 11 U.S.C. § 523(a)(15), finding that the Debtor had the ability to pay the debts and that the detriment to the Plaintiff of discharge would outweigh the benefit to the Debtor.
We affirm the bankruptcy court's holding that the obligation owed by the Debtor is nondischargeable pursuant to § 523(a)(15). The Debtor has not met his burden of proof in demonstrating that either he does not have the ability to pay or that discharging the obligation would result in a benefit to him that outweighs the detrimental consequences to Anna Hart.
Whether the Debtor's hold harmless obligations to his former spouse are nondischargeable under 11 U.S.C. § 523(a)(15).
The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to hear appeals of final orders. The United States District Court for the Southern District of Ohio has authorized appeals to the BAP. A "final order" of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations and internal quotations omitted). "Determinations of nondischargeability under § 523(a) are final orders for appeal purposes." National City Bank v. Plechaty (In re Plechaty), 213 B.R. 119, 121 (6th Cir. BAP 1997) (citations omitted).
The bankruptcy court's finding of facts are reviewed for clear error and its conclusions of law are reviewed de novo. Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629 (6th Cir.1994); Longo v. McLaren (In re McLaren), 3 F.3d 958, 961 (6th Cir. 1993); In re Plechaty, 213 B.R. at 121. A de novo review allows the reviewing panel to look at the interpretation and application of relevant statutes independent of the determination of the bankruptcy court. National City Bank v. Elliott (In re Elliott), 214 B.R. 148, 149 (6th Cir. BAP 1997). As the interpretation and application of § 523(a)(15) involves conclusions of law, we review such de novo. United States v. Stephens, 118 F.3d 479, 481 (6th Cir.1997); Taylor v. Taylor, 199 B.R. 37, 40 (N.D.Ill.1996). The Panel must affirm the underlying factual determinations unless they are clearly erroneous. In re Plechaty, 213 B.R. at 121.
The Debtor, Joseph Molino (Molino), and Anna Hart (Hart) are former spouses whose marriage was terminated pursuant to a decree of dissolution (Decree). The Amended Separation Agreement, incorporated into the Decree, required Molino to pay two home equity loans that totaled $22,434.98. The Decree also required Molino to hold Hart harmless on those debts. Hart was awarded the homestead property that secured these loans.
Molino failed to meet the terms of the Separation Agreement. Hart was forced to sell the homestead property and paid the loans in full from the sale proceeds. Subsequently, Hart and her new husband purchased a home with the remaining proceeds from the sale.
Molino sought relief under Chapter 7. Thereupon, Hart filed a complaint asserting nondischargeability under 11 U.S.C. §§ 523(a)(5) and (15) for the debts subject to the hold harmless provisions in the Separation Agreement. After a trial, the bankruptcy court determined that Molino's obligation to Hart was excepted from discharge pursuant to § 523(a)(15). Molino argues that he should receive a discharge pursuant to § 523(a)(15)(A) because he does not have the ability to pay the debt from income or property which is not reasonably necessary for his maintenance and support, or pursuant to § 523(a)(15)(B) because a discharge would result in a benefit to him that outweighs the detriment to Hart.
Molino further argues that he does not have the ability to pay this debt because he has voluntarily chosen to refrain from seeking future paid employment. Prior to his separation from Hart, Molino was an independent business person earning a yearly income of $48,000. Molino testified that he intends to continue assisting at a bar and grill in which he was a shareholder prior to the bankruptcy filing. Further, he intends to continue to assist his new wife in her dog grooming business. For assisting at the bar, Molino receives $50 to $90 per week which he describes as a reimbursement for costs he incurs traveling to and from the bar. As consideration for assisting his new wife in her business, she supports him as a dependent. His new wife pays all the bills, and he has no debt nor additional expenses following his discharge in bankruptcy.
Molino asserts that while he has practically no income, Hart has a job that pays $30,000 a year, a 1994 Jeep, and has taken two trips to the Caribbean in the last two years. Consequently, he submits it is of greater benefit to him to be discharged from this debt than the detriment that such discharge would cause Hart.
The bankruptcy court found that Molino "had the ability to pay" the debt on the basis that he had "some interest" in the bar and grill, had no health problems, and could potentially find employment to pay off the debt. Further, the court found that because Hart had already expended $22,434.98 on satisfying Molino's obligation on the second and third mortgages and, because Molino was employable, it would constitute an abuse of the discharge provision to grant Molino a discharge. The court also concluded that the benefit to Molino of receiving a discharge was greatly outweighed by the detriment to Hart in granting a discharge.
Section 523(a) of the Bankruptcy Code excepts certain categories of debts from a debtor's discharge granted under sections 727, 1141, 1228(a), 1228(b) or 1328(b). Section 523(a)(5) excepts from discharge marital obligations of a debtor where the obligation owed is "actually in the nature of alimony, maintenance or support of a spouse, former spouse, or child of the debtor." In 1994, Congress expanded the exception to discharge for marital obligations by adding § 523(a)(15) to the Bankruptcy Code. Section 523(a)(15) excepts from discharge marital obligations that are not nondischargeable alimony, maintenance, or support obligations covered under § 523(a)(5). In most cases, this marital obligation is a property settlement award that is not in the nature of either alimony, maintenance, or support. Nondischargeability under § 523(a)(15) is subject to two exceptions, the existence of either one functioning to permit the debtor a discharge of that property settlement obligation. Subsection (A) provides that the obligation is discharged if the debtor:
does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business.
11 U.S.C. § 523(a)(15)(A). Subsection (B) provides that the obligation is discharged if "discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor." 11 U.S.C. § 523(a)(15)(B).
The objecting creditor bears the burden of proof to establish that the debt is of a type excepted from discharge under § 523(a)(15). Once the creditor has met this burden, the burden shifts to the debtor to prove either of the exceptions to nondischargeability contained in subsections (A) or (B). In re Crosswhite, 148 F.3d 879, 884-885 (7th Cir.1998); Gamble v. Gamble (In re Gamble), 143 F.3d 223, 226 (5th Cir.1998); Moeder v. Moeder (In re Moeder), 220 B.R. 52, 56 (8th Cir. BAP 1998). The debtor must make these showings by a preponderance of the evidence. See Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991).
The bankruptcy court properly interpreted and applied § 523(a)(15)(A) in finding that Molino had the ability to pay. The court in Johnson v. Rappleye (In re Rappleye), 210 B.R. 336 (Bankr.W.D.Mo.1997), was faced with a similar fact pattern. Therein, properties and obligations were divided between the debtor and his spouse. Rappleye, 210 B.R. at 338. Subsequent to the dissolution of the marriage, the debtor voluntarily chose to become a missionary and had virtually no income. Id. at 339. The debtor then filed a petition under Chapter 7 and his spouse filed a nondischargeability action pursuant to §§ 523(a)(5) and 523(a)(15). Id. at 338. The Rappleye court granted judgment for debtor's spouse and ruled that the judgment was nondischargeable pursuant to §§ 523(a)(5) and 523(a)(15). Id. at 334. After noting that it was the debtor's burden to show either inability to pay or that the benefit of receiving a discharge outweighs the detriment to the non-filing spouse from having the debt discharged, the court concluded that the debtor had not met his burden. Id. at 340-341.
Ability to pay under § 523(a)(15) does not necessarily mean at the time of the trial, but requires...
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