In re Tumbleson, Civ. A. No. 82-K-2216
Decision Date | 04 April 1983 |
Docket Number | Bankruptcy No. 82 B 04170 J.,Civ. A. No. 82-K-2216 |
Citation | 28 BR 663 |
Parties | In re Terry Nick TUMBLESON f/d/b/a Tumbleson Manufacturing Company, Debtor-Appellant. |
Court | U.S. District Court — District of Colorado |
Edward I. Cohen, Denver, Colo., for debtor-appellant.
Janet G. MacFarlane, Denver, Colo., Chapter 13 Trustee.
This is an appeal from the bankruptcy court's denial of confirmation of a Chapter 13 reorganization plan pursuant to 11 U.S.C. 1321 et seq. Appellant contends that the court's refusal to confirm is in error, relying on 11 U.S.C. 1325(a) which mandates confirmation if six listed criteria are met. Appellant argues that his plan complies with all six elements and that to allow a court to require something in addition to what the code provides would amount to judicial legislation. The statute reads as follows:
It is clear that if the conditions of section 1325(a) are met, congress intended confirmation to be mandatory. S.Rep. No. 95-989, 95th Cong., 2d Sess. 142 (1978); H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 430 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787.
However, § 1325(a)(3) clearly allows a bankruptcy judge discretion in determining whether a reorganization plan is acceptable. As trier of fact, it is the bankruptcy judge's responsibility to determine the presence or absence of good faith. In the instant case, the appellant's lack of good faith is due to his proposed $1.00 payment to cover three years worth of back child support, in the amount of $3,301. The only finding which Judge Brumbaugh relied upon to deny confirmation of the plan stated that "there is no provision for cure of default on priority non-dischargeable debt for past child support."
It is true that child support is not listed as a claim having priority under 11 U.S.C. § 507 of the bankruptcy code. However, I interpret this statement to relate to the priority given child support as a non-dischargeable debt pursuant to 11 U.S.C. § 1328. This provision of the code specifically excepts child support from discharge even after a reorganization plan has been approved and completed. It says, in pertinent part:
Section 1322(a) specifies the mandatory contents of a reorganization plan. Section 1322(b) states the permissive elements of a plan:
The applicable portion of section 523 states:
Appellant states that there are no reported cases dealing with the factual issue presented in this case. However, his own brief cites a Ninth Circuit case which contains language specifically acknowledging that a failure to repay child support could be considered an act of bad faith. In distinguishing circumstances in which (lack of) good faith was improperly considered, the court included testimony found in the Congressional Record:
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