In re Pelikant
Decision Date | 04 August 1980 |
Docket Number | Adv. No. 80 A 722.,Bankruptcy No. 80 B 2791 |
Citation | 5 BR 404 |
Parties | In re Donald PELIKANT, Debtor. Harold RICHTER, Plaintiff, v. Donald PELIKANT, Defendant. |
Court | U.S. Bankruptcy Court — Northern District of Illinois |
Kevin M. Myles of Goldberg, Fohrman & Weisman, Ltd., Chicago, Ill., for debtor.
This matter coming on to be heard upon the Complaint of HAROLD RICHTER, Creditor of the above-named Debtor, pursuant to Bankruptcy Rule 409(a) to determine the dischargeability of debt claimed to be nondischargeable pursuant to Clause Five of Section 523(a) of the Bankruptcy Code, and upon Debtor's Answer thereto, and upon Debtor's Motion for Summary Judgment, and
The Court having examined the pleadings filed in this matter, and having received and examined the Memorandum in Support of Defendant's Motion for Summary Judgment, and the Court being fully advised in the premises;
The Court Finds:
1. On September 20, 1974, a Decree for Divorce was entered in the Circuit Court of Cook County, Illinois, County Department, Chancery, Divorce Division, Case No. 74 D 5687 entitled Debra Pelikant vs. Donald Pelikant. Said Decree for Divorce incorporated by reference a Stipulation entered into by the parties which provided in part as follows:
2. Ill.Rev.Stat. ch. 40, § 16, which was in force at the time of the entry of the aforesaid Decree for Divorce, provided in pertinent part as follows:
3. On March 7, 1980, DONALD PELIKANT filed his voluntary petition in bankruptcy herein.
4. To date, DONALD PELIKANT has paid to HAROLD RICHTER on account of the award of attorney's fees embodied in the aforesaid Decree of Divorce the sum of $199.54, leaving a balance due of $300.46.
The Court Concludes and Further Finds:
1. § 523(a) of the Bankruptcy Code provides in pertinent part as follows:
2. The Seventh Circuit Court of Appeals, interpreting the predecessor to the above quoted section in In re Cornish, 529 F.2d 1363 (7th Cir. 1976), held that an award of attorney's fees under Ill.Rev.Stat. ch. 40, § 16 was nondischargeable as a liability for "alimony due or to become due, or for maintenance or support of wife or child." Other jurisdictions have reached a similar conclusion. See In re Jones, 518 F.2d 678 (9th Cir. 1975); In re Nunnally, 506 F.2d 1024 (5th Cir. 1975); Damon v. Damon, 283 F.2d 571 (1st Cir. 1960). The Seventh Circuit held that the fees constituted a nondischargeable debt whether payable to the wife or to her attorney. In re Cornish, supra at 1365.
Debtor, DONALD PELIKANT, contends that Cornish is no longer good law, since it was decided on the basis of Illinois law and the legislative history of § 523(a)(5) makes it clear that bankruptcy law, not state law, will determine what constitutes alimony, maintenance, or support. Debtor's contention is without merit. While the legislative history indicates that the determination whether an award constitutes alimony shall be made with reference to a federal standard, nothing in the legislative history suggests that state law shall play no part in making that determination.
H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 364 (1977), U.S.Code Cong. & Admin. News 1978, pp. 5787, 6320 states as follows:
In Waller, the bankrupt petitioned the court to reopen his bankruptcy case and to enjoin his ex-wife from enforcing a divorce decree which provided, inter alia, that the husband pay and hold the wife absolutely harmless from all existing obligations. The bankruptcy court reopened the case, granting a temporary injunction, and the district court affirmed. The Sixth Circuit Court of Appeals reversed, finding that the obligation to hold the former wife harmless on existing debts constituted alimony, maintenance, or support and had therefore not been discharged in the husband's bankruptcy. The court stated that "the law of Ohio must be resorted to in order to determine what constitutes alimony, maintenance or support . . .", In re Waller, supra at 448, and noted that in Ohio the statutory definition of alimony was very broad indeed. Id. at 450.
If a state were to define "alimony" as including division of property, then under the reasoning in Waller, an award representing division of property would arguably be nondischargeable in bankruptcy. Bankruptcy Judge Lee stated, in Bankruptcy Act Revision: Hearings on H.R. 31 and H.R. 32 Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 94th Cong., 2d Sess. 1309 (1976):
"The Sixth Circuit Court of Appeals in effect ruled that the word `alimony\' as used in the Federal statute is to be determined by the definition of that term appearing in the Ohio statutes and by reference state case law interpreting the Ohio statute."
Judge Lee suggested that one possible solution to the problem would be the inclusion of a definition of the term "alimony" in the proposed Bankruptcy Code. Id. at 1310. While no such definition was included in the Bankruptcy Code as finally enacted, the definition of "alimony" within the purview of the exception to dischargeability is firmly established by case law:
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In re Papi, Bankruptcy Case No. 09 B 12379 (Bankr. N.D. Ill. 5/4/2010), Bankruptcy Case No. 09 B 12379.
...(Bankr. N.D. Ill. 1981); Bennett v. Knahe (In re Knahe), 8 B.R. 53, 56-57 (Bankr. S.D. Ind. 1981); Riehter v. Pelikant (In re Pelikant), 5 B.R. 404, 407-08 (Bankr. N.D. Ill. 1980). Recognizing the policy and purpose of Section 523(a)(5) and the weight of authority from other circuits, this ......
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...the obligations imposed by the decree are one or the other." In re Lineberry, 9 BR 700, 704 (Bkrtcy.W.D.Mo.1981). See also In re Pelikant, 5 BR 404 (BC N.D.Ill.1980) and In re Fox, 5 BR 317, 6 BCD 709 (Bkrtcy.N. D.Tex.1980). Where it is not clear from the face of the judgment what the natur......