Matter of Crum, Bankruptcy No. 85-961.
| Decision Date | 28 October 1985 |
| Docket Number | Bankruptcy No. 85-961. |
| Parties | In the Matter of Carmen CRUM, Debtor. |
| Court | United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Middle District of Florida |
Ronald R. Bidwell, Tampa, Fla., for debtor Carmen M. Crum.
E.C. Langford, Tampa, Fla., for Robert W. Crum.
ORDER ON ORDER TO SHOW CAUSE RE: CONTEMPT
THIS IS a Chapter 11 case originally commenced by a Petition for Relief under Chapter 11 filed by Carmen Crum. The matter under consideration is an attempt by Carmen Crum to cite and hold in contempt her former spouse, Robert W. Crum. The underlying facts which govern this controversy are basically without dispute and can be summarized as follows:
Prior to the commencement of this case, Mr. and Mrs. Crum were involved in a dissolution of marriage proceeding which ultimately culminated in the entry of a Final Decree which provided, inter alia, that the interest of Mrs. Crum in the former marital home and also the interest in the office property which was held by Mr. and Mrs. Crum as tenants by the entireties shall be conveyed and be awarded to Mr. Crum as his sole property and a certain condominium, also held by Mr. and Mrs. Crum as tenants by the entireties, located in Colorado shall be conveyed by Mr. Crum to Mrs. Crum to be her sole property. The divorce decree further provided that the parties shall execute the appropriate conveyances to effectuate and to carry out the provisions of the Final Decree. It appears that the marital home was mortgaged and the second mortgage holder, Barnett Bank, after the commencement of this case, filed a motion and sought relief from the automatic stay. The motion was heard in due course and this Court entered an order and granted the relief from the automatic stay. Barnett, who commenced its foreclosure action prior to the commencement of the Chapter 11 case, was authorized to complete the foreclosure action. Subsequent to the entry of the order lifting the automatic stay in favor of Barnett, there was a hearing scheduled in the mortgage foreclosure action on a Motion for Summary Judgment filed by Mrs. Crum. At the same time, counsel of record for Mr. Crum, who was fully aware of the pendency of the bankruptcy proceeding, filed a motion and sought leave to file a cross-claim against Carmen Crum. The cross-claim filed in the foreclosure action sought an unspecified amount of money damages against Mrs. Crum. This motion is the first one which, according to counsel for Mrs. Crum, forms the basis of the claim that Mr. Crum and his counsel of record violated the automatic stay imposed by § 362(a) of the Code and, therefore, that both shall be punished. It further appears, however, from the record that in the pending divorce case on September 16, 1985, counsel of record for Mr. Crum filed the following motions — (1) Motion to Hold Carmen Crum in Contempt; (2) Motion to Lift the Stay Order previously entered by the state court and (3) Motion to Compel Prior Instituted Contempt Proceeding for Punishment (sic).
It is the contention of Carmen Crum that Robert Crum and his counsel knowingly and willfully violated the automatic stay and, as a result, Carmen Crum had to incur additional expenses of engaging the services of an attorney and, therefore, they should be punished for contempt. Although not very well articulated, counsel for Robert Crum contends that he filed the Motion for Relief to file a cross-claim in error and even though the cross-claim sought money damages, it did not mean to seek money damages but merely a set-off against the claim asserted by Mrs. Crum. Counsel apparently orally stated in court that he would like to amend his Motion by asserting same as an affirmative defense. This is not conceded by counsel for Carmen Crum, who contends that counsel for Robert Crum expressly stated that he was unwilling to withdraw his Motion and actually the judge who heard the Motion indicated that any attempt to assert an affirmative defense at this time was too late and, therefore, the same was denied. Be that as it may, it is clear that the motion for leave to file a cross-claim was definitely a violation of the automatic stay since it was seeking money damages against the Debtor who was currently involved in a pending case under Title 11, thus, protected by the automatic stay imposed by § 362 of the Bankrutpcy Code.
This conduct of counsel for Robert Crum forms the first basis for the contention that he should be held in contempt and punished. In addition to the foregoing, counsel for Carmen Crum also contends that the three motions filed in the pending divorce case, filed on September 16, also constituted contempt of court. This presents a more difficult question inasmuch as these motions were filed in a divorce case and not in a foreclosure action and, by virtue of § 362(b) the automatic stay expressly excludes from its operation proceedings to enforce alimony and child support, provided, however, that the enforcement is not sought out of properties of the estate. Counsel for Carmen Crum, in support of its contention that the filing of these motions was also contemptuous, cites the case of Moore v. Moore (In the Matter of Raymond S. Moore), 22 B.R. 200 (Bankr.M.D.Fla.1982), a case decided by this court on July 13, 1982. In the Moore case, this Court concluded that while the extended jurisdiction of the bankruptcy courts was not designed by Congress to thwart and to impede enforcement of non-dischargeable alimony and child support obligations of a debtor who seeks refuge in a bankruptcy court, the automatic stay protects all properties of the estate and prohibits any proceedings against property of the estate, even proceedings which are designed to enforce non-dischargeable alimony or support obligations. In the case of Stamper v. Stamper (In the Matter of Stamper), 17 B.R. 216 (Bankr.S.D.Ohio 1982), the Bankruptcy Court for the Southern District of Ohio was called upon to consider the identical question. In Stamper, the Court concluded that a separated wife was in contempt of the bankruptcy court's jurisdiction for seeking a contempt of court order in state court, including imminent incarceration of a debtor, despite knowledge of the pendency of the bankruptcy case. In Stamper, there was an adversary proceeding pending.
In the present instance, it is clear and it is without dispute that the ownership interest of the parties in a former marital home, in the office building, and in the condominium in Colorado are held by them as tenants in common by virtue of the decree dissolving the marriage. Thus, at the time this case was commenced by the voluntary petition originally filed under Chapter 11 by Mr. Crum, the interest of Carmen Crum in the properties was property of the estate, although it is also true that there was a decree entered in the state court which ordered Mrs. Crum to convey her interest in the office building and also in the former marital home to Robert Crum. It further appears that there is an adversary proceeding...
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