Long v. Long

• Decision Date: 05 March 1991
• Docket Number: No. 9020DC679,9020DC679
• Citation: 401 S.E.2d 401,102 N.C.App. 18
• Parties: Sandra King LONG v. Phillip Arthur LONG.
• Court: North Carolina Court of Appeals

Page 401

401 S.E.2d 401

102 N.C.App. 18

Sandra King LONG v. Phillip Arthur LONG.

No. 9020DC679.

Court of Appeals of North Carolina.

March 5, 1991.

A. Marshall Basinger, II, Charlotte, for plaintiff-appellant.

No brief filed for defendant-appellee.

GREENE, Judge.

Plaintiff appeals the granting of defendant's motion to dismiss the complaint, which order was filed 6 April 1990, and the trial court's denial of the plaintiff's motion for summary judgment.

In this civil action, plaintiff seeks to specifically enforce a provision of a "SEPARATION AGREEMENT AND PROPERTY SETTLEMENT" (Agreement) dated 2 April 1987 labelled "ALIMONY" which required defendant to pay plaintiff the sum of $500.00 each month beginning 15 March 1987 and continuing "for each month thereafter...." The Agreement provided for monthly payments to the wife of $500.00 each month, settled the plaintiff's interest in the defendant's business, distributed the personal properties and the debts between the parties, and disposed of all equitable distribution claims. The complaint alleges that the defendant paid the "ALIMONY" through February 1988 but that "such payments do not appear to be forthcoming in the future."

The evidence before the trial court by virtue of attachments to pleadings or motions included the parties' Agreement, a divorce judgment filed 1 March 1988 dissolving the marriage of the plaintiff and defendant, the answer of this plaintiff (this plaintiff was the defendant in the divorce action) to the divorce complaint which did not include a claim for alimony, the plaintiff's affidavit submitted along with her summary judgment motion, and a bankruptcy order filed 4 February 1988 discharging the defendant. The bankruptcy order provided in pertinent part:

It appearing from the record that ... [Phillip Arthur Long] is entitled to a discharge [under Chapter 7], IT IS ORDERED:

1. ... [Phillip Arthur Long] is released from all personal liability for debts existing on ... [27 October 1987], or deemed to have existed on such date pursuant to Section 348(d) of the Bankruptcy Code (Title 11, United States Code).

2. Any existing judgment or any judgment which may be obtained in any court with respect to debts described in paragraph 1 is null and void as a determination of personal liability of the debtor, except:

a. Debts determined nondischargeable by the Bankruptcy Court pursuant to Section 523(a)(2), (4), and (6) of the Bankruptcy Code; and

b. Debts which are nondischargeable pursuant to Section 523(1), (3), (5), (7), (8), and (9) of the Bankruptcy Code.

The defendant's motion to dismiss was heard by the trial court on 17 October 1988, at which time no ruling was announced by the court. On 6 April 1990, an order was filed which provided in pertinent part:

....

2. Defendant's Motion to Dismiss should be granted on the grounds that: (a.) At the time of the parties [sic] divorce in file # 88 CVD 20, the defendant had failed to file a counterclaim for alimony and failed to file sufficient allegations to constitute a claim for the same relief demanded herein; ... (d) Phillip Arthur Long was discharged in bankruptcy from any and all contractual agreements, but would have continued to be liable for alimony had a proper claim been filed before the divorce; (e) The current action is barred by statute in that no claim for alimony was properly filed ...

....

IT IS, THEREFORE, ORDERED that:

....

2. Defendant's Motion to Dismiss Plaintiff's Complaint shall be and hereby is granted.

3. Plaintiff's Complaint is hereby dismissed with prejudice.

THIS 6 day of APRIL, 1990, nunc pro tunc.

The plaintiff gave timely written notice of appeal on 3 May 1990 since the trial court's order was entered on 6 April 1990. N.C.R.App.P. 3(c). The trial court's attempt to enter the order nunc pro tunc to 17 October 1988 was ineffective. Nunc pro tunc orders are allowed only when " 'a judgment has been actually rendered, or decree signed, but not entered on the record, in consequence of accident or mistake or the neglect of the clerk ... provided [that] the fact of its rendition is satisfactorily established and no intervening rights are prejudiced.' " State Trust Co. v. Toms, 244 N.C. 645, 650, 94 S.E.2d 806, 810 (1956) (citation omitted). Because the trial court did not announce its order in open court on 17 October 1988, it was not rendered at that time. Kirby Bldg. Sys. v. McNiel, 327 N.C. 234, 240, 393 S.E.2d 827, 830 (1990) (judgment rendered when decision " 'officially announced, either orally in open court or by memorandum filed' " with clerk) (citation omitted). Even if the order was rendered on 17 October 1988, there is nothing in the record to indicate that the delay of nearly eighteen months in entering the order was " 'in consequence of accident or mistake or the neglect of the clerk....' " Toms, 244 N.C. at 650, 94 S.E.2d at 810 (citation omitted).

______________

The issues presented are (I) whether the Chapter 7 bankruptcy order relieved the defendant of his pre-bankruptcy petition contractual obligation to pay support to the plaintiff; and (II) whether the failure to file a claim for alimony before divorce bars the enforcement of a contractual alimony obligation contained in a separation agreement.

I

The trial court concluded that defendant's Chapter 7 bankruptcy discharged him from any further liability under the Agreement for the payment of "ALIMONY." Though the issue has not been raised, we note at the outset that the trial court had jurisdiction to decide this case. Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C.App. 414, 421, 248 S.E.2d 567, 571 (1978), disc. rev. denied, 296 N.C. 583, 254 S.E.2d 32 (1979) (appellate court may always raise question of subject matter jurisdiction).

The Federal Bankruptcy Act provides in pertinent part:

§ 523. Exceptions to discharge

(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt ... (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that ... (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise ...; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support ...

11 U.S.C.S. § 523 (Law.Co-op.1986 & Supp.1990).

"The state court's jurisdiction to determine dischargeability of debts under [11 U.S.C.S.] § 523 depends on the nature of the debt in question." In re Galbreath, 83 B.R. 549, 550 (Bankr.S.D.Ill.1988). While the Bankruptcy Courts have exclusive jurisdiction to decide issues of dischargeability under §§ 523(a)(2), (4), and (6), the Bankruptcy Courts and any "appropriate nonbankruptcy forum" have concurrent jurisdiction on issues of dischargeability under §§ 523(a)(1), (3), (5), (7), (8), (9), and (10). Id. at 551; In re Orr, 99 B.R. 109, 110 (Bankr.S.D.Fla.1989); Bankr.R. 4007 advisory committee's note; see also 3 Collier, Collier on Bankruptcy p 523.15 (15th ed. 1990); 1 Cowans, Cowans Bankruptcy Law and Practice § 6.10 (1989 ed.).

This concurrent jurisdiction functions as the court in Galbreath explained:

Under Bankruptcy Rule 4007(a), the debtor, as well as any creditor, may file a complaint in the bankruptcy court to obtain a determination of dischargeability. Thus, the debtor may seek a determination that a particular debt is dischargeable to avoid the possibility of an enforcement action in the state court following the bankruptcy proceeding. In addition, since, under Bankruptcy Rule 4007(b), there is no time limit for seeking a determination of dischargeability as to debts other than those of § 523(a)(2), (4) and (6), the debtor retains the right to remove a subsequent proceeding brought in a nonbankruptcy court, if no determination of dischargeability has been made in the previous bankruptcy proceeding.... If, however, the debtor has neither sought a determination of dischargeability in the bankruptcy proceeding nor acted to have the subsequent enforcement proceeding removed to bankruptcy court, the nonbankruptcy court has jurisdiction to decide the dischargeability of such debts at the creditor's behest once the automatic stay has terminated upon conclusion of the bankruptcy proceeding.

Id. at 551 (citation omitted). See also In re Crowder, 37 B.R. 53, 55 (Bankr.S.D.Fla.1984) (where debtor received discharge, bankruptcy case closed, and thus automatic stay at an end, state court judgment could not be set aside as nullity); 28 U.S.C.S. § 1441 (Law.Co-op.1988 & Supp.1990) ("Actions removable generally"); 28 U.S.C.S. § 1446 (Law.Co-op.1989) ("Procedure for removal"); 28 U.S.C.S. § 1452 (Law.Co-op.1989) ("Removal of claims related to bankruptcy cases"). "Bankruptcy Rules 4007 and 7001(6) specifically require that any request [by the debtor or creditor] to determine dischargeability [in a bankruptcy court] take the form of an adversary proceeding." Galbreath, 83 B.R. at 551.

Here, neither the plaintiff nor the defendant filed a complaint in the bankruptcy court for a determination of the dischargeability of the contractual "ALIMONY" obligation. The bankruptcy court's order specifically left the issue open for future determination. Additionally, the record is silent as to whether either party sought to remove this case from the state court to the bankruptcy court. Therefore, because the parties have "neither sought a determination of dischargeability in the bankruptcy proceeding nor acted to have the subsequent enforcement proceeding removed to bankruptcy court," the state trial court had jurisdiction to decide the issue of...