In re Rollins, Bankruptcy No. A93-67408-REB. Adversary No. 93-6598.

• Court: United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Georgia
• Writing for the Court: ROBERT E. BRIZENDINE
• Citation: 200 BR 427
• Parties: In re Steve ROLLINS, Debtor. Steven ROLLINS, Plaintiff, v. Diane M. CAMPBELL, Ben Smith, and Frank Baker, Defendants.
• Docket Number: Bankruptcy No. A93-67408-REB. Adversary No. 93-6598.
• Decision Date: 20 August 1996

200 B.R. 427 (1996)

In re Steve ROLLINS, Debtor.
Steven ROLLINS, Plaintiff,
v.
Diane M. CAMPBELL, Ben Smith, and Frank Baker, Defendants.

Bankruptcy No. A93-67408-REB. Adversary No. 93-6598.

United States Bankruptcy Court, N.D. Georgia, Atlanta Division.

August 20, 1996.

200 BR 428

COPYRIGHT MATERIAL OMITTED

200 BR 429

Hirsch Friedman, Atlanta, GA, for Plaintiff

Dorothy H. Bishop, Robert B. Silliman, Awtrey & Parker, P.C., Marietta, GA, for Defendants.

ORDER

ROBERT E. BRIZENDINE, Bankruptcy Judge.

Before the Court is Plaintiff-Debtor's complaint alleging, among other things, that Defendants willfully violated the automatic stay provided in 11 U.S.C. § 362(a) and that he is entitled to an award of money damages including

200 BR 430

costs, attorney's fees, and punitive damages as authorized by 11 U.S.C. § 362(h).¹ This matter came on for trial and, based upon the evidence and argument presented, the Court delivered an oral ruling in open court on February 1, 1995, finding and concluding that Defendants violated the automatic stay and that Debtor is entitled to an award of actual damages, including attorney's fees, under Section 362(h). Thereafter, a hearing was conducted on the issue of attorney's fees but no ruling was made thereon. Accordingly, this Order is entered to reduce the Court's prior findings of fact and conclusions of law to written form consistent with the aforesaid ruling. Additionally, within this Order the Court will address the award of attorney's fees to Debtor's counsel

The issue presented is whether Defendants' efforts to enforce Debtor's payment of a certain child support obligation violated the automatic stay as provided in Section 362(a) of the Bankruptcy Code. Following a plea of nolo contendere in a criminal abandonment action, Debtor was sentenced to 12 months confinement which was suspended principally conditioned upon the payment of child support. Defendants contend they committed no stay violation when they subsequently sought revocation of the suspension of Debtor's sentence and hence his possible incarceration. Defendants argue the damages sought by Debtor in this case are unwarranted because their actions were excepted from the automatic stay as the continuation of a criminal matter under Section 362(b)(1) or were excepted as efforts directed toward the collection of child support in accordance with Section 362(b)(2). Further, whether or not the Court concludes Defendants' actions were subject to and in willful violation of the automatic stay, Defendants maintain this Court should abstain from hearing Debtor's claim for damages under principles of comity. Finally, they assert that their conduct is protected by official and individual qualified immunity as well as sovereign immunity.

I. Findings of Fact

Debtor and his former wife were divorced pursuant to the Final Judgment and Decree entered by the Superior Court of Cobb County, Georgia on July 13, 1990, which adopted and incorporated a consent agreement between the parties settling all related matters. Under this agreement, Debtor was required to pay the sum of $312 per month for the support and maintenance of the couple's minor child. See Exhibits 12 and 13. These payments were to be made directly to the Cobb County Child Support Receiver. Exhibit 13, ¶ 5.² On the same date, based upon an affidavit filed by Debtor's former wife, the Magistrate Court of Cobb County issued a criminal warrant against Debtor charging, by reason of Debtor's refusal and failure to support his two (2) year old son for a period in excess of 30 days, that he had abandoned his minor child in violation of O.C.G.A. § 19-10-1. See Exhibit 1. The county solicitor, thereupon, formally accused Debtor of the criminal offense of willful, voluntary abandonment of his minor child and commenced an action in the State Court of Cobb County. State v. Steve Rollins, Case No. 90M 5028, Exhibit 2.

Debtor waived formal arraignment on October 4, 1990 and, after having failed to appear at several court hearings on the matter, eventually entered a plea of nolo contendere on January 7, 1991 to the offense as charged. See Exhibits 3, 6, 7, 8, and 9. Subsequent thereto, Judge Mary Staley of

200 BR 431

the Cobb County State Court entered a misdemeanor sentence of 12 months confinement and fined Debtor $240. As authorized by O.C.G.A. § 42-8-34, she suspended Debtor's sentence of confinement on condition that he pay monthly child support in the amount of $312 until his child marries, becomes self-supporting, dies, reaches age eighteen (18), or as otherwise ordered by the court. See Misdemeanor Sentence, Exhibit 10; Sentence of Support, Exhibit 11.³

The State Court further ordered Debtor to make the aforesaid payments to the Child Support Receiver, comply fully with the remaining terms and conditions of the Superior Court's Order of July 13, 1990, and pay the $240 fine and surcharge before March 6, 1991. See Exhibit 11; see also Exhibit 10; Bankruptcy Court Transcript of August 16, 1994 (p.m.) (hereafter "Tr. 2") at 92-93 (Debtor).⁴ The Sentence Order (Exhibit 11) also provided that Debtor's arrest could be ordered for failure to comply with the terms and conditions set forth therein and, after a hearing, the suspended sentence could be revoked subjecting Debtor to immediate service of his sentence through incarceration. See Exhibit 11. As testified by Smith, revocation petitions are used to enforce the terms and conditions of suspension. Bankruptcy Court Transcript of September 27, 1994 (hereafter "Tr. 3") at 15-17 and 90-92.

Before 1992, the Probation Office of the Georgia Department of Corrections handled the supervision of suspended sentences entered in child support cases. Bankruptcy Court Transcript of August 16, 1994 (a.m.) (hereafter "Tr. 1") at 25, 27 (Campbell). In accordance with recent enabling legislation under O.C.G.A. § 42-8-100 (enacted by Ga. L.1991, p. 1135), however, the judges of the State Court of Cobb County established a sentence enforcement unit by Order dated July 23, 1992, which unit reports directly to the judicial council for the Cobb County State Court. See Exhibit 36. As a result of the aforesaid enabling legislation and said Order, supervisory authority of misdemeanor sentences in Cobb County, including child abandonment cases, was transferred from the probation department to the Sentence Enforcement Unit (hereafter "SEU"). Defendants Campbell and Baker are employed by the Cobb County SEU and Defendant Smith is the Cobb County Solicitor.

Under this claim of authority, Defendants assert herein that their duties include supervising suspended sentences in abandonment cases and, therefore, in State Court they have the responsibility for monitoring and collecting child support payments made in connection with a suspended sentence. Tr. 3 at 17, 19-20 (Smith), 151, 155-56 (Baker). In discussing her unit's operating procedure, Campbell testified that the SEU receives child support payments from a payor parent, such as Debtor, which monies are then forwarded to the custodial parent. Generally, if the payments are not received within two weeks of the due date, the SEU notifies the payor parent via letter. Once a delinquency reaches one or two months in duration, SEU employees initiate an enforcement process by filing a petition for revocation of suspension.

Suspended sentences are administratively convenient and economical because they relieve recipient/custodial parents from the burden of having to bring new abandonment charges each month a payor parent fails to pay child support. Further, in the case of a civil divorce decree, custodial parents can avoid enforcing child support through the filing of contempt actions in the Superior Court. Defendants herein favor the use of suspended sentences because it places a powerful tool at their disposal for handling child support arrearage cases. Tr. 3 at 83-85 (Smith). Once a parent is convicted of the offense of abandonment and is placed under a suspended sentence, the SEU and/or the county solicitor use the threat of confinement through revocation of suspension to motivate and enforce compliance when a payor parent fails to make the required child support payments. Tr. 1 at 50, 51 (Campbell). Practically speaking, payor parents, like Debtor

200 BR 432

herein, face the prospect of numerous incarcerations but only infrequently are such parents actually incarcerated and seldom serve a sentence to its conclusion. Moreover, because Debtor's sentence was suspended pending his child's minority, he will conceivably live under threat of incarceration until his son reaches eighteen (18) years of age. Tr. 3 at 16, 24, 56 (Smith); Tr. 1 at 47, 48; Tr. 2 at 25-26 (Campbell).⁵

After the SEU was created and had assumed responsibility from the probation office for child support collection and enforcement of suspended sentences in abandonment cases, Debtor fell behind in his child support payments. Defendant Campbell brought a petition for revocation of sentence in the State Court of Cobb County on April 5, 1993, same being styled State v. Steve Rollins, Case No. 90M 5028 (Exhibit 21), claiming that Debtor had failed to pay monthly child support totalling $2,843, and a hearing to show cause was scheduled for May 10, 1993.⁶ Debtor, however, failed to appear on May 10; whereupon, Campbell submitted an affidavit to the court for authority to have Debtor arrested based on his failure to appear at the show cause hearing and because he was in arrears for child support in the amount of $3,155 ($2,843 plus one additional month's child support of $312). See Exhibit 22. Based on Campbell's affidavit and under authority of O.C.G.A. § 19-10-1, Judge Melodie Clayton ordered Debtor's arrest on May 10, 1993. See Exhibit 26; Tr. 1 at 82 (Campbell).

When a defendant fails to appear at such a hearing, Campbell testified, she typically reports to the judge that she has confirmation of the receipt of the petition by a...