In re Schock

• Decision Date: 03 February 1984
• Docket Number: Adv. No. 83-7168.,Bankruptcy No. 83-05199
• Citation: 37 BR 399
• Parties: In re Vernon Raymond SCHOCK, d/b/a Diamond S. Ranch, Debtor. Vernon R. SCHOCK, Plaintiff, v. Corinne A. SCHOCK, Defendant.
• Court: U.S. Bankruptcy Court — District of North Dakota

37 B.R. 399 (1984)

In re Vernon Raymond SCHOCK, d/b/a Diamond S. Ranch, Debtor Vernon R. SCHOCK, Plaintiff, v. Corinne A. SCHOCK, Defendant.

Bankruptcy No. 83-05199, Adv. No. 83-7168.

United States Bankruptcy Court, D. North Dakota.

February 3, 1984.

James R. Jungroth, Jamestown, N.D., for plaintiff.

James A. Wright, Jamestown, N.D., for defendant.

ORDER

WILLIAM A. HILL, Bankruptcy Judge.

The Debtor in the above-entitled adversary proceeding filed his petition for reorganization under Chapter 11 of the Bankruptcy Code on April 6, 1983. On April 15, 1983, the Debtor commenced by complaint this adversary proceeding seeking relief from the automatic stay. The Debtor requested modification of the automatic stay to permit an action for divorce to continue in the District Court of Stutsman County, North Dakota. The Defendant, Corinne A. Schock, filed her Answer to the Complaint on April 29, 1983. The parties filed a Stipulation for the Entry of Judgment on July 1, 1983. Whereas the parties have agreed to entry of judgment, this Court makes the following determination:

Both parties seek modification of the statutory stay imposed by 11 U.S.C. § 362, in order to proceed with their divorce action in state court. Section 362 of the Bankruptcy Code provides, in pertinent part:

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, including the issuance or employment of process, 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). A divorce petition is clearly not within the meaning of sections 362(a)(1) and 101(4). In re Cunningham, 9 B.R. 70, 71 (Bkrtcy.D.N.M.1981). Since divorce proceedings are not stayed by section 362 of the Bankruptcy Code, it would be nonsensical for this Court to modify the stay to permit a divorce proceeding to continue.

Section 541 of the Bankruptcy Code provides for the creation of a bankruptcy estate upon the commencement of any bankruptcy proceeding. As is indicated by section 101(31) of the Bankruptcy Code the filing of the bankruptcy petition commences a bankruptcy proceeding. The estate which is created by the filing of a bankruptcy...