In re Ploski, Bankruptcy No. 83-457
| Decision Date | 11 December 1984 |
| Docket Number | Bankruptcy No. 83-457,Adv. No. 84-005. |
| Citation | 44 BR 911 |
| Parties | In re Robert Joseph PLOSKI, Debtor. Alice TUNNY, Plaintiff, v. Robert Joseph PLOSKI, Defendant. |
| Court | U.S. Bankruptcy Court — District of New Hampshire |
Deborah Reynolds, Plymouth, N.H., for plaintiff.
Erland McLetchie, Ossipee, N.H., for debtor.
This case presents the ever-troublesome question of drawing a line between the "alimony-support" aspect and the "property settlement" aspect of a divorce decree, for purposes of determining whether certain of the debtor's obligations under the decree are non-dischargeable pursuant to § 523(a)(5) of the Bankruptcy Code. The "trouble" in these cases arises from the logical impossibility of drawing a line between the concept of "property" and "support" when the obligation in question, as in the present case, revolves around the former family home which was given to the wife to serve as a residence for herself and the children of the marriage.
The question is made more difficult for the bankruptcy court when, as in most cases, neither the parties nor the state court in the divorce proceeding make those distinctions which are crucial to the bankruptcy determination. This of course is understandable since those distinctions are largely irrelevant for purposes of state divorce law.
The debtor Robert Joseph Ploski and his ex-wife were divorced in 1979. The divorce decree provided that the debtor would pay his ex-wife $40 per week for support and maintenance until her remarriage, and $60 per week per child, for the support and maintenance of the children until their reaching the age of majority. In addition the decree awarded the family residence to the ex-wife, subject to ". . . the mortgage thereon, which the plaintiff wife agrees to assume and pay."
After the divorce the ex-wife discovered a second mortgage on the family residence, in the principal amount of $15,000.00, which had been placed on the home ten months prior to the divorce by her ex-husband. The proceeds of this mortgage had been used by the ex-husband to purchase another property, which property he was awarded as part of the property settlement in the divorce proceedings.
Upon demand by his ex-wife, the debtor in 1979 agreed to assume financial responsibility for the second mortgage payment, and made a number of such payments to protect the ex-wife's rights to the family residence against a threatened foreclosure.
When the debtor failed to continue to make such payments, the ex-wife brought a "Petition for Modification and Other Relief" in the State Court in 1980, alleging the foregoing facts, and stating that the stipulation agreed to at the time of divorce "did not take into consideration the fact that there was a second mortgage on the parties homestead" and that there had been "a substantial and material change of circumstances since the effective date of the divorce decree which warrants a modification of the support provisions of said decree." The petition closed with a prayer that the ex-husband "be ordered to assume and pay the outstanding second mortgage to the bank . . . or that the current support order be increased so that the plaintiff will have the financial wherewithal to assume and pay said mortgage."
In April of 1980 the State Court granted the ex-wife's petition to the following extent:
The debtor made a number of payments under this modified order, but thereafter again went into arrears, resulting in a foreclosure sale of the home being scheduled by the second mortgagee. At that point, on March 24, 1982, the parties entered into a stipulation under which the ex-wife was given a mortgage upon an apartment building owned by the debtor, to secure a note in the amount of $13,500.00, being the amount then owing on the second mortgage, which sum was to be paid off in 108 equal monthly installments of $125.00 each. The debtor made a number of these payments.
On October 7, 1983 the debtor filed his voluntary petition with this court under Chapter 7 of the Bankruptcy Code. He listed in his schedules the foregoing mortgage debt in the paid-down amount of $12,125.00. It is this debt which the ex-wife contends is in its nature a support obligation non-dischargeable pursuant to § 523(a)(5) of the Code.
The State Court in entering its modification order did not expressly characterize the obligation created in terms relevant to the issues under the Bankruptcy Code. It is of course well established that the question as to what constitutes alimony, maintenance or support is to be determined under the bankruptcy laws and not the state...
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