Kadel v. Kadel

• Decision Date: 20 February 1969
• Docket Number: No. 59798,59798
• Citation: 250 N.E.2d 420,21 Ohio Misc. 232
• Parties: , 49 O.O.2d 179, 50 O.O.2d 460 Nina J. KADEL, Plaintiff, v. Worthington O. KADEL, Jr., Defendant.
• Court: Ohio Court of Common Pleas

Page 232

21 Ohio Misc. 232

250 N.E.2d 420, 49 O.O.2d 179, 50 O.O.2d 460

Nina J. KADEL, Plaintiff, v. Worthington O. KADEL, Jr., Defendant.

No. 59798.

Court of Common Pleas of Ohio, Clark County.

Feb. 20, 1969.

Thomas H. Busch, Springfield, for plaintiff.

[250 N.E.2d 421] Thomas E. Hackett, Springfield, for defendant.

DECISION

GOLDMAN, Judge.

The issue before this Court is whether or not an obligation resulting from an order issued in a decree of divorce, directing defendant to pay certain moneys to plaintiff, was discharged in bankruptcy.

The relevant facts are as follows:

On August 11, 1964, plaintiff filed her petition against defendant seeking a divorce, alimony (both temporary and permanent), and certain real property, and praying the Court to determine the equity she had in a certain corporation which operated a restaurant in the city of Springfield, Ohio.

No answer having been filed by the defendant, the petition came on for hearing without contest on October 5, 1964, following which a decree of divorce was granted and the defendant ordered to pay plaintiff the sum of $50 per week for one year, and further to pay within one year the sum of $8,194.04 which the Court found represented such interest as she possessed in the restaurant, and plaintiff was granted certain other relief as therein provided for.

The specific provisions that are involved in the instant matter are as follows:

'It is further ordered by the Court that the said defendant pay or cause to be paid to the plaintiff herein the sum of $50 per week for one year; that such payments so ordered by this Court be paid by the defendant through the Clerk of the Common Pleas Court, Clark County, Ohio, commencing on the date of the filing of this entry of final decree and continuing each week thereafter for a period of one year.

'It is further ordered by the Court that, as a full and complete settlement of all moneys due this plaintiff from the defendant, the said defendant pay or cause to be paid to the plaintiff the sum of $8,194.04, representing such interest as she possessed in Kadel's Colonial Hideaway Inc., and more specifically the assignment of 250 shares of plaintiff's stock in Kadel's Colonial Hideaway, Inc., the owners of Kadel's Hideway real property, to Worthington O. Kadel; that such sum so ordered by this Court be paid by the defendant to the plaintiff within one year from the date of the filing of this entry.'

The decree of divorce was signed by counsel for the plaintiff and also by the defendant himself, thus signifying his awareness of the order made by the Court and his waiver of any objection thereto.

Thereafter the defendant was cited into court on several occasions for his alleged willful failure to comply with both the order for weekly payments and for the payment of the sum which the Court ordered him to pay within one year.

Finally, on June 3, 1968, upon application of the plaintiff, a judgment was rendered by this Court for $100, which represented that portion of the weekly payments which still remained unpaid, and for $8,194.04, representing the lump sum which the defendant was ordered to pay within a year but which he had completely failed to pay; for a total sum of $8,294.04. On the same date charges in contempt were filed because of defendant's failure to comply with the orders of this Court, and the defendant was further ordered to appear to show cause why he should not be punished for violating the orders of the Court.

Thereafter, on November 4, 1968, hearing on the contempt citation was held, at which time the parties appeared in court with counsel and at which time evidence was taken.

At this hearing the defendant offered as a defense for his fialure to comply with the orders of the Court, and as a reason why he should not be cited for contempt, his discharge in bankruptcy. It appeared and it was agreed and stipulated that the defendant had filed his petition in bankruptcy on August 29, 1966, that the case was closed on December 9, 1966, and that plaintiff's claim for alimony and moneys due under the decree granting her a divorce was not included in defendant's schedule of debts, nor was plaintiff herself served with notice by the Bankruptcy Court of such filing. (All underlining in this decision is by the Court.)

At the hearing it was further established that plaintiff had remarried following her divorce, that her present husband from whom she is now estranged was a creditor of the defendant at the time the petition in bankruptcy was filed, and that her husband as creditor actually did receive formal notice of the bankruptcy proceedings. However, plaintiff denied that she received similar notice, and was not certain as to whether she herself ever became aware of the bankruptcy proceedings during the period they were pending.

Under these circumstances, was the obligation imposed on defendant by this Court discharged in bankruptcy?

Plaintiff contends it was not, because of the provision of the Bankruptcy Act itself. 11 U.S.C.A. section 35, titled 'Debts not affected by discharge,' provides in part as follows:

'A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as * * * (2) are liabilities for * * * alimony due or to become due, or for maintenance or support of wife or child.'

Defendant, on the other hand, contends that the obligation imposed on the defendant was in fact a result of a property settlement agreement between the parties, as distinguished from alimony, and therefore was not exempt from discharge. Following the hearing, briefs were filed and the matter submitted to the Court for decision.

The authority of the Court to issue the order involved is found in section 3105.18 R.C., which section is titled 'Alimony,' and is as...