In re Wrobel
| Decision Date | 12 June 1996 |
| Docket Number | Bankruptcy No. 95 B 14869. |
| Citation | 197 BR 289 |
| Parties | In re Angelica B. WROBEL, Debtor. |
| Court | U.S. Bankruptcy Court — Northern District of Illinois |
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Forrest L. Ingram, Forrest L. Ingram, P.C., Chicago, IL, for debtor.
Lesly L. Datlow, Chicago, IL, pro se.
Jack McCullough, Chapter 13 Trustee, Chicago, IL.
M. Scott Michel, United States Trustee, Chicago, IL.
This matter comes before the Court on the motions of Lesly F. Datlow ("Datlow") for leave to file a claim and to lift the automatic stay, and on the motion of Angelica B. Wrobel (the "Debtor") for sanctions under 11 U.S.C. § 362(h) and Federal Rule of Bankruptcy Procedure 9020. The Court held a trial on these motions on May 22, 1996. For the reasons set forth herein, the Court hereby grants Datlow's motion to lift the automatic stay so that she may pursue her claim of $3,110.25 against the Debtor. The Court denies Datlow's motion for leave to file a claim and the Debtor's motion for sanctions.
The Court has jurisdiction to entertain these motions pursuant to 28 U.S.C. § 1334(b) and Local General Rule 2.33(A) of the United States District Court for the Northern District of Illinois. They are core proceedings under 28 U.S.C. § 157(b)(2)(B), (G), & (O).
The Debtor originally filed a petition under Chapter 13 of the Bankruptcy Code on March 14, 1995 ("Original Chapter 13"). On June 21, 1995, the Court entered an order dismissing the Original Chapter 13 on motion of the trustee. The case was subsequently closed and the trustee discharged on July 14, 1995.
The Debtor filed a second petition under Chapter 13 of the Bankruptcy Code on July 24, 1995 ("Current Chapter 13"). See Datlow's Exhibit No. 18. The Debtor submitted a proposed plan under her Current Chapter 13 on August 10, 1995. This plan was subsequently amended on October 24, 1995, and the amended plan was confirmed on November 15, 1995.1 See Debtor's Exhibit No. 9. The last day for filing claims in the Current Chapter 13 was January 9, 1996.
The current motions arose out of post-decree proceedings in the Circuit Court of Cook County, County Department, Domestic Relations Division ("State Court"). On May 26, 1995, Datlow, in her representative capacity as the attorney for the Debtor's ex-husband, John G. Wrobel ("John"), filed an emergency petition to limit removal in State Court to prevent the Debtor from removing her son from the jurisdiction.2 See Datlow's Exhibit No. 4. Judge Aubrey F. Kaplan heard arguments on this motion that same day and entered an order that denied the Debtor permission to remove her son from the jurisdiction. See Datlow's Exhibit No. 5. The following day, on May 27, 1995, the Debtor removed her son in violation of Judge Kaplan's order.
On June 13, 1995, Datlow, again in her representative capacity as attorney for John, filed an emergency petition for a rule to show cause why the Debtor should not be held in contempt of court for her failure to comply with the May 26, 1995 order. See Debtor's Exhibit No. 3. After a hearing on that motion on June 15, 1995, Judge Kaplan entered an order holding the Debtor in indirect criminal contempt of court.3See Datlow's Exhibit No. 8. The order states that the Debtor left the country with knowledge of the May 26, 1995 order. Id.
On August 22, 1995, Judge Kaplan held a hearing on sanctions. On the following day, Judge Kaplan entered an order that sentenced the Debtor to 21 days in incarceration and imposed a fine of $350.00. See Datlow's Exhibit No. 9 and Debtor's Exhibit No. 4. Judge Kaplan stayed enforcement of the judgment, however, and granted Datlow leave to file a petition for fees incurred in connection with the removal proceedings. See Debtor's Exhibit No. 5 and Datlow's Exhibit No. 10.
On January 8, 1996, Judge Kaplan held a hearing on what, if any, fees would be awarded against the Debtor as a sanction for the indirect criminal contempt of court and awarded Datlow $3,110.25 in attorneys' fees. See Datlow's Exhibit No. 11 and Debtor's Exhibit No. 10. The award in the form of an order was entered on January 10, 1996, one day after the deadline for filing claims in the Debtor's Current Chapter 13. See Datlow's Exhibit No. 12 and Debtor's Exhibit No. 11. On January 12, 1996, Judge Kaplan entered an order amending the January 8 order to reflect that the fees had been awarded pursuant to section 508(b) of the Illinois Marriage and Dissolution Act. See Datlow's Exhibit No. 13 and Debtor's Exhibit No. 12. These fees were the only penalty assessed against the Debtor as a result of the contempt finding — Judge Kaplan never reinstated the sentence nor the fine originally ordered on August 22, 1995. On March 15, 1996, Datlow filed motions for leave to file a claim and to lift the automatic stay. See Debtor's Exhibit No. 15.
The Debtor asserts that throughout these proceedings, Datlow was aware that the Debtor had filed the Current Chapter 13. In support of this allegation, the Debtor submits her response to Datlow's petition for Attorney's Fees, which was filed in State Court on September 26, 1995. See Debtor's Exhibit No. 7. In that pleading, the Debtor asserted that "petitioner and respondent were forced to file a Chapter 7 bankruptcy and the Debtor has filed a Chapter 13 in an attempt to save her home." Id. at ¶ 16. The Debtor also testified that she delivered to her state court attorneys a copy of her Current Chapter 13 petition to be delivered to Datlow. No testimony was submitted that those attorneys had, in fact, delivered same to Datlow. The Debtor, however, testified that she saw a copy of the Current Chapter 13 petition among Datlow's papers at a subsequent hearing before the State Court. The Debtor, however, could not explain how she knew the documents were copies of the Current Chapter 13 petition. The Debtor seeks damages, costs, and fees against Datlow under section 362(h) claiming a willful violation of the automatic stay of section 362(a).
Datlow asserts and testified at trial that she was only aware of the Debtor's Original Chapter 13, and that she did not become aware of the Current Chapter 13 until the Debtor stated that she had filed the Current Chapter 13 in open court during the January 12, 1996 hearing before Judge Kaplan after the bar date for filing claims had passed. In support of her assertion she notes that she was never listed as a creditor in the Current Chapter 13 and thus never received notice from the Court or the Debtor regarding the Chapter 13 proceedings. Likewise, she asserts and testified that when she asked the Debtor's state court attorneys whether the Debtor was currently in bankruptcy, Datlow was advised that the Original Chapter 13 case had been dismissed. They did not mention to her a second Chapter 13 petition had been filed by the Debtor's bankruptcy attorney. She maintains that she never received a copy of the Debtor's bankruptcy petition from the Debtor or her attorneys. Datlow further asserts that her actions in obtaining the award of attorneys' fees from the State Court are excepted from the automatic stay of section 362(a) under section 362(b)(1) because the award was made incidental to the State Court's criminal contempt power and mandated by section 508(b) of the Illinois Marriage and Dissolution Act.
Upon the filing of a petition under the Bankruptcy Code, 11 U.S.C. § 362(a) provides broad protections for the Debtor against the collection of all claims by creditors of the Debtor. Section 362(a)(1) specifically stays the commencement or continuation of any "judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the bankruptcy case." 11 U.S.C. § 362(a)(1). Section 362(b), however, provides certain statutory exceptions to the automatic stay. Pursuant to 11 U.S.C. § 362(b), the filing of a bankruptcy petition does not stay "the commencement or continuation of a criminal action or proceeding against the debtor." 11 U.S.C. § 362(b)(1). The exception to the stay pursuant to section 362(b)(1) only arises if the proceeding against the debtor is criminal in nature. Swan v. Dervos (In re Dervos), 37 B.R. 731, 733 (Bankr.N.D.Ill.1984); see also Woodside v. County of Williamson, Illinois (In re Woodside), 161 B.R. 969, 970 (Bankr.S.D.Ill.1994).
Section 508(b) of the Illinois Marriage and Dissolution Act states that:
In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the costs and reasonable attorney\'s fees of the prevailing party.
750 ILCS 5/508(b). Section 508(c) of the Illinois Marriage and Dissolution Act allows the court to order the fees and costs paid directly to the attorney, who may then enforce such an order in his or her name. 750 ILCS 5/508(c).
Section 508(b) is a mandatory provision that requires a trial court to order a party who has without justification failed to comply with a court order, to pay costs and reasonable attorneys' fees incurred by their spouse in relation to the enforcement of that order. In re Marriage of Sanda, 245 Ill. App.3d 314, 319, 184 Ill.Dec. 186, 189, 612 N.E.2d 1346, 1349 (2d Dist.1993); In re Marriage of Walters, 238 Ill.App.3d 1086, 1096, 178 Ill.Dec. 176, 186, 604 N.E.2d 432, 442 (2d Dist.1992); In re Marriage of Chenoweth, 134 Ill.App.3d 1015, 1018, 89 Ill.Dec. 922, 925-26, 481 N.E.2d 765, 768-69 (5th Dist. 1985). "Under section 508(b), a trial court has no discretion as to whether to award fees and costs, if it finds that the...
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