Matter of Garrison
| Decision Date | 17 July 1980 |
| Docket Number | Bankruptcy No. 80-02748-H. |
| Citation | 5 BR 256 |
| Parties | In the Matter of Jerry R. GARRISON and Beverly A. Garrison, a/k/a Beverly A. Reynolds, a/k/a Beverly A. Brown, Debtor. |
| Court | U.S. Bankruptcy Court — Eastern District of Michigan |
Richard J. Collins, Detroit, Mich., for defendants Jerry R. and Beverly A. Garrison.
Wayne P. Kristall, Pontiac, Mich., for plaintiff Oakland County Friend of the Court.
Before HACKETT, BRODY and PATTON, Bankruptcy Judges.
The Friend of the Court for Oakland County, Michigan filed a motion seeking relief from the automatic stay provided for by Section 362 of the Bankruptcy Reform Act of 1978.
The facts relevant to the controversy are as follows:
On May 20, 1980, debtor Jerry R. Garrison and his present spouse filed an in pro per Chapter 13 proceeding in this Court. Prior thereto, the Oakland County Circuit Court in divorce proceedings dissolved a marriage contract between Jerry R. Garrison and Diane Sue Garrison, and incidental thereto ordered the former to pay twenty-five dollars ($25.00) weekly for the support of a minor child of the dissolved marriage. At the time of this motion, Jerry R. Garrison allegedly owed $1,881 directly to his former spouse for the maintenance of the minor child, and $5,098 to the State of Michigan as a result of an assignment by the former spouse to the state for monies advanced by the latter for maintenance and support.
At the very outset, it should be noted that the $5,098 obligation due the state admittedly arose as the result of an assignment from debtor's former spouse to the state. Hence, pursuant to Sections 523(a)(5)(A) and 1328(a)(2)1 of the Bankruptcy Code, the debt is dischargeable. The state does not seek to, nor can it, employ any process to enforce this obligation. The interest the State of Michigan asserts herein is in the right to compel the debtor, through the state's judicial process, to pay pre- and post-bankruptcy child support payments of twenty-five dollars ($25.00) a week due a minor dependent child during the pendency of these Chapter 13 proceedings.
Post hoc we confine our remarks and devote our attention to this single issue. But before considering what we feel to be the ultimate issue, we note that either subsection (d)(1) or (f) of Section 362 of the Bankruptcy Code would dispose of the controversy sub judice.2 The former subsection empowers the court to terminate the stay imposed for cause after notice and hearing, while the latter subsection authorizes the court to lift the stay ex parte to prevent irreparable harm to the rights of a party affected by the stay. Thus the court could in this instance, assume that Section 362 is operative, rely upon the provisions of subsections (d)(1) or (f) and terminate the litigation at hand without further comment. But in view of the fact that some serious doubt exists as to whether the stay provided for in Section 362 of the Code, under the present circumstances, automatically stays, either permanently or temporarily, the enforcement of alimony and child support payments, further discussion is mandated.
Whether or not Section 362(b)(2)3 of the Code automatically stays state enforcement of alimony and child support payments due a dependent child or former spouse against debtors who have filed Chapter 13 proceedings depends upon the extent to which Congress intended by Section 1306 of the Code4 to subject future earnings and after acquired property to the absolute control of bankruptcy courts, to the exclusion of state court decrees providing for alimony and child support. First, child support and alimony obligations due a former spouse or dependent child, as opposed to obligations assigned to the state, can never be discharged in bankruptcy. This is true whether the debtor files under Chapter 7, 11, or 13 of the Code. See Sections 523(a)(5), 1328(a)(2), and 1141(d)(2) of the Code. Then did Congress, by virtue of its definition of "property of the estate", intend the mere filing of a Chapter 13 petition to automatically stay the enforcement of a non-dischargeable debt
Admittedly, the question is a difficult one. On the one hand, we have the broad sweeping and apparently all inclusive language of Sections 362 and 1306, that seemingly, when read together, renders court control over property of Chapter 13 debtors paramount, even to the exclusion of the interest that the several states have in providing for the maintenance and support of divorced spouses and minor children. But at the same time Congress, in apparent sympathy with and in recognition of the states' interest, mandates in Sections 523(a)(5) and 1328 that child support and alimony are nondischargeable debts. Are these seemingly inconsistent policies irreconcilable?
As was stated in Popovici v. Agler, 280 U.S. 379, p. 383, 50 S.Ct. 154, p. 154, 74 L.Ed. 489:
"The language so far as it affects the present case is pretty sweeping, but like all language it has to be interpreted in the light of tacit assumptions upon which it is reasonable to suppose that the language was used."
Thus, a proper interpretation of Sections 362 and 1306 of the Bankruptcy Code requires that those sections be viewed in a historical and constitutional context and not abstractly. To do otherwise could well result in a false and misleading interpretation, and a prospective application to the everyday affairs of those affected thereby that would be completely at odds with the Congressional intent.
From a historical view, both the Constitution5 and court decisions6 conclusively hold that the consummation and dissolution of marriages is a matter reserved to the states. In Popovici v. Agler, supra, the Supreme Court of the United States held Article III, Section 2 of the Constitution providing for jurisdiction by federal courts over cases affecting Ambassadors, public Ministers, and Consuls and an Act of Congress giving federal courts exclusive jurisdiction over such cases ineffective to deny an Ohio State Court jurisdiction to grant a divorce and order the payment of alimony on behalf of a plaintiff wife who sued her husband who was a Vice-Consul of, and a citizen of, Rumania. The foregoing is representative of a clear intent insofar as the Constitution permits to leave to the states, with as little interference as possible, the exclusive right to regulate the dissolution of marriages and to provide for the maintenance and support of those affected thereby. This view is harmonious with Congressional policy expressed in Sections 523(a)(5) and 1328 of the Bankruptcy Code, which continued the policy in previous bankruptcy legislation, holding child support and alimony obligations exempt from the effect of a bankruptcy discharge.
In this regard, we heed the admonition of the United States Court of Appeals for the Sixth Circuit in In re Waller, 494 F.2d 447, p. 452, wherein the Court addressed the effect of new legislation that enlarged the jurisdiction of bankruptcy courts and the effect such enlargement might have on alimony and child support obligations. The Court said:
To be sure, Congress did intend by enacting the Bankruptcy Reform Act of 1978 to expand the jurisdiction of bankruptcy courts and to enhance the control of those courts over the estates of debtors. But the changes wrought by Section 362 of the Bankruptcy Code, when considered in a historical and constitutional light, were not intended to thwart and impede the enforcement of nondischargeable alimony and child support obligations by the states against those who seek refuge in the bankruptcy courts. Rather, the expanded jurisdiction and the stay provided by Section 362 was intended to prohibit disruptive interference in the administration of bankruptcy estates by overzealous private creditors who would engage in the "race of diligence". These sections were not intended to make the bankruptcy courts a sanctuary for those who would avoid alimony and child support obligations. See Gonzalez Hernandez v. Borgos, 1 Cir., 343 F.2d 802.7
Nor was it the intent of the new Bankruptcy Code to convert the bankruptcy courts into family or domestic relations courts — courts that would in turn, willy-nilly, modify divorce decrees of state courts insofar as these courts had previously fixed the amount of alimony and child support obligations of debtors. Indeed, in the case now before us, the debtor through counsel urged the court to reduce his child support payments from twenty-five dollars ($25.00) to twelve dollars ($12.00) a week. Ostensibly, this request was prompted by the realization that the debtor was financially unable to propose and consummate a plan under which he could pay his dischargeable debts and at the same time comply with the state court divorce decree with regard to his nondischargeable child support obligations. We strongly suggest that Congress has, under the Bankruptcy Code, provided a remedy for the dilemma. The debtor has the option of resorting to Chapter 7 proceedings thereby ridding himself of all his dischargeable obligations. This would in turn enable him to dispose of his nondischargeable child support obligations through payment. This, we believe, represents the true intent of Congress as opposed to the staying of child support payments in reliance on Section 362 of the Code. Additionally, the foregoing is...
To continue reading
Request your trial