In re Polishuk

• Decision Date: 24 August 1999
• Docket Number: Bankruptcy No. 98-02320M. Adversary No. 98-0260-M.
• Citation: 243 BR 408
• Parties: In re Richard Charles POLISHUK, Debtor. Nancy Polishuk, Plaintiff, v. Richard Charles Polishuk, Defendant.
• Court: U.S. Bankruptcy Court — Northern District of Oklahoma

243 B.R. 408 (1999)

In re Richard Charles POLISHUK, Debtor Nancy Polishuk, Plaintiff, v. Richard Charles Polishuk, Defendant.

Bankruptcy No. 98-02320M. Adversary No. 98-0260-M.

United States Bankruptcy Court, N.D. Oklahoma.

August 24, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert A. Todd, Tulsa, OK, for plaintiff.

M. Shawn Lawhorn, Tulsa, OK, for defendant.

MEMORANDUM OPINION

TERRENCE L. MICHAEL, Chief Judge.

THIS MATTER came before the Court for trial on August 11, 1999. Plaintiff Nancy Polishuk ("Plaintiff" or "Ms. Polishuk") appeared personally and through her attorney, Robert A. Todd. Defendant Richard A. Polishuk ("Defendant" or "Mr. Polishuk") appeared by and through his attorney, M. Shawn Lawhorn. The Court received evidence and heard argument from the parties. The Court also considered the facts stipulated to by the parties in the Pre-Trial Order filed in this action on June 22, 1999. The following findings of fact and conclusions of law are made pursuant to Bankruptcy Rule 7052 and Federal Rule of Civil Procedure 52.

Jurisdiction

The Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. § 1334(b).¹ Reference to the Court of this adversary proceeding is proper pursuant to 28 U.S.C. § 157(a). This is a core proceeding as contemplated by 28 U.S.C. § 157(b)(2)(B) & (I).

Burden of Proof

The United States Court of Appeals for the Tenth Circuit has ruled that

Exceptions to discharge are to be narrowly construed, so as to effect the "fresh start" purpose of bankruptcy. Jones, 9 F.3d at 880. The policy underlying § 523(a)(5), however, favors enforcement of familial support obligations over a "fresh start" for the debtor. Sampson v. Sampson (In re Sampson), 997 F.2d 717, 722 (10th Cir.1993). "Further, the objector to discharge has the burden of proving by a preponderance of the evidence that a debt is not dischargeable." Jones, 9 F.3d at 880.

See In re Miller, 55 F.3d 1487, 1489 (10th Cir.1995), cert. denied 516 U.S. 916, 116 S.Ct. 305, 133 L.Ed.2d 210 (1995). Accordingly, the burden of proof in this adversary proceeding falls upon the Plaintiff.

Findings of Fact

Plaintiff and Defendant were married on December 24, 1972, in Tulsa, Oklahoma. In May of 1997, Ms. Polishuk filed an action for divorce (the "Divorce Action") in the District Court in and for Tulsa County, Oklahoma (the "State Court"). The Divorce Action was hotly contested, and, after a four day trial, the State Court entered its Nunc Pro Tunc Journal Entry of Judgment and Decree of Divorce (the "Divorce Decree") on August 10, 1998.² In the Divorce Decree, the State Court ordered Mr. Polishuk to hold Ms. Polishuk harmless from certain credit card obligations. Later, in a separate order, the State Court entered judgment against Mr. Polishuk and in favor of Ms. Polishuk in the amount of $44,909.78, which represented an award of her attorneys' fees and costs incurred in the Divorce Action.

At the time it entered the Divorce Decree, the State Court had before it Plaintiff's "Pretrial Financial Declaration" (the "Declaration") which set forth the income and expenses of the Plaintiff at the time of trial of the Divorce Action. See Plaintiff's Exhibit 1. According to the Declaration, Plaintiff had an annual gross income of $82,531.80,³ or monthly gross income of $6,877.65. After deductions for federal income tax, state income tax, Social Security withholding and Medicare withholding, Plaintiff had net monthly income of $4,864.75. Ms. Polishuk's monthly expenses at the time were $9,948.99.⁴ The Declaration indicated a monthly shortfall of income versus expenses of $5,084.24.

With respect to the credit card obligations in dispute (hereafter referred to as the "Credit Card Debt"), the State Court made the following findings and conclusions:

28. At or about the time of filing the Petition for Divorce, Plaintiff and Defendant had marital debts to numerous credit card companies. The parties are jointly and severally liable on the following credit card debts which had the following balances at the time the Petition was filed:

A. American Express # XXXX-XXXXXX-XXXXX (Sign & Travel and Richard Polishuk) (Charges on Nancy\'s card # XXXX-XXXXXX-XXXXX may also be posted to the Sign & Travel Account) $6,370.63

B. Chase MasterCard # XXXX-XXXX-XXXX-XXXX (now # XXXX-XXXX-XXXX-XXXX) $12,065.35

C. Ford CitiBank MasterCard # XXXX-XXXX-XXXX-XXXX $3,839.81 D. CitiBank Business Card # XXXX-XXXX-XXXX-XXXX $4,338.33

E. Nation\'s Bank # XXXX-XXXX-XXXX-XXXX $4,108.57

29. The Court finds that Defendant took possession of Plaintiff\'s American Express Card # XXXX-XXXXXX-XXXXX from Plaintiff\'s purse without her permission at about the time of the filing the Petition for Divorce was filed, and Defendant added to the charges on this account, but made no payments, post petition. The Court finds that not only is it equitable for Defendant to be ordered to pay this debt and hold Plaintiff harmless, it is also necessary for that sic the hold harmless obligation be considered a support obligation owed to Plaintiff, the minor child in her custody, and the adult child Plaintiff is supporting during school. Furthermore the Court finds that it would not be equitable for Defendant to be permitted by the bankruptcy Court to allow Defendant to discharge the hold harmless obligation in bankruptcy, but that decision is solely for the Bankruptcy Judge to make. Defendant acted inequitably by taking the credit card wrongfully from Plaintiff\'s purse and using it to incur charges post petition. His hands are unclean. If Defendant is permitted to discharge this debt, it will cause detrimental consequences to Plaintiff and the children she is supporting.

30. The Court finds the Plaintiff has assumed the obligation of the Chase MasterCard # XXXX-XXXX-XXXX-XXXX (now # XXXX-XXXX-XXXX-XXXX), and that debt should be awarded to Plaintiff.

31. The Court finds that Defendant is the only party who had possession of the Ford CitiBank MasterCard # XXXX-XXXX-XXXX-XXXX. All of the charges on this card were made by Defendant. At the time the Petition was filed, the balance was only, $3,839.81. The evidence is clear from both Plaintiff\'s Exhibits 35 and 37 that Defendant began using this card immediately after the Petition was filed at which time there was over $5,100.00 of available credit left on the card. By the time Plaintiff discovered that this card existed in her name and was able to close it, Defendant used up all the credit and ran the balance over $8,550.00. Defendant used this credit card post petition for trips that Plaintiff did not go on, for his own food and gasoline, for his own cellular telephone, his own dry cleaning and laundry. His total post petition charges on this card were more than $5,354.00.

32. The Court finds that not only is it equitable for Defendant to be ordered to pay the Ford CitiBank MasterCard # XXXX-XXXX-XXXX-XXXX indebtedness and hold Plaintiff harmless, it is also necessary for that sic the hold harmless obligation be considered a support obligation owed to Plaintiff, the minor child in her custody, and the adult child Plaintiff is supporting during school. Furthermore the Court finds that it would not be equitable for Defendant to be permitted by the bankruptcy Court to allow Defendant to discharge the hold harmless obligation in bankruptcy, but that decision is solely for the Bankruptcy Judge to make. Defendant acted inequitably by secretly using post petition a credit card on which Plaintiff was liable and using it to incur nearly double the pre petition charges, and his hands are unclean. If Defendant is permitted to discharge this debt, it will cause detrimental consequences to Plaintiff and the children she is supporting.

33. The Court finds that Defendant is the only one who had possession of the CitiBank Business Card # XXXX-XXXX-XXXX-XXXX. At the time the Petition was filed, this card had a balance of $4,338.33. Prior to the filing of the Petition, this account had been abused by Defendant as a tool of asset dissipation. It is clear from Plaintiff\'s Exhibit "37" that just in the short period from February 1993 to August 1997, Defendant dissipated over $3,637.00 on cigars, just on this credit card. He also used this card to finance cash advances and gambling expenses. It was clear from Plaintiff\'s Exhibits "36" and "37" that by the time Plaintiff could get this card closed, Defendant had added more than another $1,000.00 of debt to this card, post petition, and the balance as of the end of December 1997 was over $5,380.00.

34. The Court finds that not only is it equitable for Defendant to be ordered to pay the CitiBank Business Card # XXXX-XXXX-XXXX-XXXX indebtedness and hold Plaintiff harmless, it is also necessary for that sic the hold harmless obligation be considered a support obligation owed to Plaintiff, the minor child in her custody, and the adult child Plaintiff is supporting during school. Furthermore the Court finds that it would not be equitable for Defendant to be permitted by the bankruptcy Court to allow Defendant to discharge the hold harmless obligation in bankruptcy, but that decision is solely for the Bankruptcy Judge to make. Defendant acted inequitably by secretly using this card during coverture and post petition for extravagant self indulgences and incurring his own post petition charges on a card Plaintiff on which is jointly liable, and his hands are unclean. If Defendant is permitted to discharge this debt it will cause detrimental consequences to Plaintiff and the children she is supporting.

35. The Court finds that Defendant is the only party who had possession of the Nation\'s Bank # XXXX-XXXX-XXXX-XXXX. All of the charges on this card were made by Defendant. At the time the petition was filed, the balance was only, sic $4,108.57. The evidence is clear from Plaintiff\'s Exhibit "49" that Defendant began using this card immediately after the Petition was filed at which time there

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