In re Murray, Bankruptcy No. 83-01030G

• Decision Date: 14 July 1983
• Docket Number: Bankruptcy No. 83-01030G,Adv. No. 83-1319G.
• Citation: 31 BR 499
• Parties: In re Lawrence MURRAY, Debtor. Cheryl MURRAY, Plaintiff, v. Lawrence MURRAY and Jonathan H. Ganz, Esquire, Trustee in Bankruptcy for Lawrence Murray, Defendants.
• Court: U.S. Bankruptcy Court — Eastern District of Pennsylvania

31 B.R. 499 (1983)

In re Lawrence MURRAY, Debtor Cheryl MURRAY, Plaintiff, v. Lawrence MURRAY and Jonathan H. Ganz, Esquire, Trustee in Bankruptcy for Lawrence Murray, Defendants.

Bankruptcy No. 83-01030G, Adv. No. 83-1319G.

United States Bankruptcy Court, E.D. Pennsylvania.

July 14, 1983.

Philip A. Gasteier, Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., for plaintiff, Cheryl Murray.

Edward Silver, Philadelphia, Pa., for the defendant/debtor, Lawrence Murray.

Jonathan H. Ganz, Philadelphia, Pa., defendant/trustee.

OPINION

EMIL F. GOLDHABER, Bankruptcy Judge:

The problem confronting us appears to be one of first impression in this district. The plaintiff and the debtor were married.¹ On July 14, 1980, the plaintiff instituted an action against the debtor in the Court of Common Pleas of Delaware County, Pennsylvania, in which she sought a divorce from the debtor, equitable distribution of the marital property of the parties and an award of alimony, counsel fees and costs. The state court ordered bifurcation of the divorce and economic issues and, on February 3, 1982, a divorce decree was entered dissolving the marriage, but reserving decision with regard to the remaining issues which were referred to a Master for determination.

Proceedings before the Master had been substantially completed when the debtor filed a chapter 7 petition on March 11, 1983. The final hearing before the Master, scheduled for March 14, 1983, did not take place due to the automatic stay imposed by § 362(a) of the Bankruptcy Code ("the Code").

Prior to their divorce, the plaintiff and the debtor owned, as tenants by the entireties, a residence located at 246 Valley Road, Media, Pa. As a result of the divorce decree the interests of the plaintiff and the debtor in said residence became that of tenants in common. On May 16, 1983, the plaintiff instituted the instant adversary proceeding, seeking relief from the automatic stay imposed by § 362 so that she might proceed with "all proper actions necessary to collect and enforce defendant's obligations for alimony, maintenance, or support . . . including but not limited to postpetition wages, commissions and other compensation due the debtor. . . ."

Section 362(a) provides that:

(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title . . . operates as a stay, applicable to all entities, of—

(1) the commencement or continuation of a judicial, administrative or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;

11 U.S.C. § 362(a)(1).

Subsection (b) of § 362 then provides that:

(b) The filing of a petition under section 301, 302, or 303 of this title . . . does not operate as a stay—

(2) under subsection (a) of this section, of the collection of alimony, maintenance, or support from property that is not property of the estate;

11 U.S.C. § 362(b)(2).

It appears clear that Congress did not intend that a debtor's spouse or former spouse should be enjoined from attempting to collect alimony, maintenance or support payments from property that is not property of the debtor's estate. Such payments are excepted from discharge under § 523(a)(5) if owed "to a spouse, former spouse, or child of the debtor for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, . . ." 11 U.S.C. § 523(a)(5).

We will therefore modify the automatic stay imposed by § 362(a) by permitting the debtor's wife to proceed before the Master, appointed by the state court in the divorce proceeding, to obtain an adjudication of the awards of alimony, counsel fees and costs, maintenance and support of their children, and by permitting the plaintiff to seek collection of such awards from the debtor's non-exempt property or from property acquired by the debtor after the case had been commenced.

But the question with respect to the partition of the realty owned by the parties calls for a different disposition. The filing of the instant bankruptcy petition terminated the jurisdiction of the divorce court over the nonexempt assets of the spouses.² Instead, the jurisdiction of the bankruptcy court becomes exclusive under section 541(a) of the Code which provides that:

(a) The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located:

(1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case.

11 U.S.C. § 541(a)(1).

Where, as in the case at bench, the debtor holds property as a tenant in common, his undivided interest becomes property of the estate under § 541(a)(1). Moreover, section 363(h) of the Code permits the sale of property which is jointly owned without regard to consent or applicable non-bankruptcy law. See Collier on Bankruptcy ¶ 363.09 at 363-30 (15th ed. 1982). That section provide...