In re Wilburn, Bankruptcy No. 90-32824
| Decision Date | 04 April 1991 |
| Docket Number | Adv. No. 90-3257.,Bankruptcy No. 90-32824 |
| Citation | 125 BR 759 |
| Parties | In re Jerry Eugene WILBURN Debtor. Peggy WILBURN, Plaintiff, v. Jerry WILBURN, Defendant. |
| Court | U.S. Bankruptcy Court — Eastern District of Tennessee |
Eric D. Christiansen, Greeneville, Tenn., for plaintiff.
Russell D. Mays, Greeneville, Tenn., for defendant/debtor.
The debtor's former wife seeks a determination that certain obligations imposed upon the debtor under the provisions of a Marital Dissolution Agreement are nondischargeable under 11 U.S.C.A. § 523(a)(5) (West 1979 & Supp.1990). The plaintiff seeks a judgment for the amount of the debts determined to be nondischargeable. A Pretrial Order containing stipulated facts and documents and defining those issues the court is called upon to resolve was entered January 7, 1991. All issues were tried before the court on February 12, 1991.
This is a core proceeding. 28 U.S.C.A. § 157(b)(2)(I) (West Supp.1990).
From the record before it, the court makes the following findings:
1. The parties were married on June 9, 1972. They have one child, Kelley Renea Wilburn, born April 14, 1975.
2. The parties were separated on May 7, 1989. On May 17, 1989, the plaintiff filed a complaint for divorce in the Circuit Court for the Third Judicial District in Greeneville, Tennessee. On May 25, 1989, a Judgment was entered granting the plaintiff a divorce from the debtor. Incorporated into the divorce decree are the provisions of a Marital Dissolution Agreement entered into between the parties. The Marital Dissolution Agreement contains the following material provisions:
3. In addition to the language quoted above, paragraphs 6, 9, 11, and 14 of the Marital Dissolution Agreement each contain the following concluding sentence:
This obligation is in the nature of alimony and is non-dischargeable in bankruptcy under the provisions of Section 523(a)(5), Title 11, United States Code.
4. The plaintiff was represented by counsel during the divorce. The debtor did not have counsel.
5. The debtor is thirty-seven years old. He has a high school education. At the time the parties were divorced, he was the proprietor of a business in Greeneville, Tennessee, known as Jerry's Auto Parts. During 1987, he realized a net profit of $11,882 from the operation of his business. At the trial the debtor was unable to recall the profit or loss realized from his business in 1988. He testified, however, that in 1989 his business lost approximately $26,000. He closed Jerry's Auto Parts in July, 1990, prior to filing his bankruptcy petition under Chapter 7 on July 20, 1990. He has remarried. Efforts to obtain employment since he filed his bankruptcy petition were unsuccessful until early this year. On January 5, 1991, he obtained employment selling novelty items. His gross income approximates $200 per week. His wife is unemployed. He testified that his financial condition has been such that he has been unable to make those payments imposed upon him under the terms of the Marital Dissolution Agreement since March, 1990. During the past eleven months, he has made two $100 payments toward his child support obligation.
6. At the time the parties divorced, the plaintiff was unemployed. She was, however, in pursuit of a beautician's license which she has now obtained. She is presently employed by a business known as Ther-ex, Inc., at a job from which she takes home approximately $160.00 per week. At the trial, she testified she was to be married on February 14, 1991, to a man she has cohabited with since December, 1990.2 The plaintiff and her daughter have continued to reside in the marital residence at 1335 Daisy Street, Greeneville, Tennessee. She has made no payments on the mortgages encumbering this property subsequent to the divorce, and testified that she will find another residence after she remarries. Mrs. Wilburn filed a voluntary petition under Chapter 7 on December 10, 1990. She scheduled and discharged the three mortgages encumbering the 1335 Daisy Street property through her bankruptcy.3 In her Statement of Intentions filed pursuant to 11 U.S.C.A. § 521 (West Supp.1990), she states, as she did at the trial, her intention to surrender the former marital residence. Obligations to Sovran Bank, the holder of the lien on the 1987 Astro Van retained by the plaintiff under the terms of the Marital Dissolution Agreement, have been discharged through her bankruptcy. Although there is no direct testimony to this effect, it appears Mrs. Wilburn no longer is in possession of the Astro Van.4 The record does not establish that the plaintiff was required to make any payments on the van after the parties' divorce.
Mrs. Wilburn seeks a nondischargeable judgment in the amount of $21,356.26 (Exhibit 1).5 This requested judgment is made up of the following components: (1) unpaid child support payments due under paragraph 2 of the Marital Dissolution Agreement in the amount of $4,566.63, representing eleven (11) monthly payments at $433.33 each with credit given for $200 paid by the debtor; (2) unpaid health insurance premiums due under paragraph 3 of the Marital Dissolution Agreement for the benefit of the parties' minor child in the amount of $2,596, representing eleven (11) monthly payments at $236 each; (3) unpaid mortgage payments owing under paragraph 6 of the Marital Dissolution Agreement in the amount of $4,510, representing eleven (11) monthly payments at $410 each; (4) unpaid installment payments on the 1987 Astro Van due under paragraph 9 of the Marital Dissolution Agreement in the amount of $4,477, representing eleven (11) monthly payments at $407 each; (5) unpaid life insurance premiums owing under paragraph 11 of the Marital Dissolution Agreement in the amount of $440, representing eleven (11) monthly payments at $40 each; and (6) unpaid alimony owing under the provisions of paragraph 14 of the Marital Dissolution Agreement, as modified,6 in the amount of $4,766.63, representing eleven (11) monthly payments at $433.33 each.
At the trial, counsel for the plaintiff acknowledged that the debtor's obligations under paragraphs 4 and 5 of the Marital Dissolution Agreement requiring him to pay the minor child's college expenses and provide her an automobile on her sixteenth birthday, are not items of support cognizable under § 523(a)(5). The plaintiff, accordingly, no longer requests a determination that these obligations are nondischargeable.
Bankruptcy Code § 523(a)(5) provides in material part:
11 U.S.C.A. § 523(a)(5) (West 1979 & Supp. 1990).
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