Matter of Gentile, Bankruptcy No. 1-81-00993
| Decision Date | 07 January 1982 |
| Docket Number | Adversary No. 1-81-227.,Bankruptcy No. 1-81-00993 |
| Citation | 16 BR 381 |
| Parties | In the Matter of James GENTILE, Debtor. Tamara GENTILE, Plaintiff, v. James GENTILE, Defendant. |
| Court | U.S. Bankruptcy Court — Southern District of Ohio |
John A. Garretson, Hamilton, Ohio, for plaintiff.
Richard Michaelson, Cincinnati, Ohio, for defendant.
DECISION
Defendant debtor filed a petition seeking Chapter 7 relief under the Bankruptcy Code. The present adversary proceeding is a claim by his former wife, plaintiff herein, that she is a creditor of defendant, and that defendant's failure to pay certain debts as provided in the Decree of Dissolution gives her grounds to assert that those debts which are listed in defendant's bankruptcy petition are non-dischargeable.
We note that the answer admits that plaintiff is a creditor of defendant, and no issue is made of her standing to contest dischargeability. Thus the question presented to us involves resolution of a question arising under 11 U.S.C. § 523(a)(5), whether the debts here in question were for "alimony to, maintenance for or support of debtor's spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement . . .". The matter came on for trial. The only evidence adduced was the testimony of the parties themselves, in addition to the underlying Decree of Dissolution, which incorporated the Separation Agreement.
The parties were married September 17, 1966. There were two children of the marriage, Jeff, now age 13, and Beth Ann, now age 9. Marital difficulties arose and the marriage was dissolved by Decree of Dissolution entered on November 24, 1978. That decree incorporated a Separation Agreement dated October 12, 1978. Article X was entitled Division of Property. It was there provided that the wife was to receive "as her own property" seven rooms of furniture. She was also to receive the real estate at 436 Cameron Place in Hamilton, Ohio, a residence which the parties then had recently acquired, subject to the existing mortgage. Husband, defendant here, was to pay all mortgage payments and household expenses "until this dissolution is final." It was further provided that if wife were to remarry or if the home were sold, husband would receive $4000.00. The agreement also provided that wife was to retain a 1973 Ford upon which husband was to make the mortgage payments, while husband was to keep the 1972 Volkswagen. The agreement then provided that husband was to pay all outstanding debts of the parties. It is noteworthy also that Article IX entitled Alimony, provided expressly that neither husband nor wife would be obligated to pay alimony. The agreement also makes provision as to the responsibility of husband to pay child support and other obligations in respect to the children. These obligations are recognized and accepted by defendant and are not here in dispute. Defendant husband filed bankruptcy on April 10, 1981.
At the time of the dissolution of the marriage in November, 1978, plaintiff was employed at Shillito's at a salary of $100.00 per week. At that time, defendant earned approximately $400.00 per week as a store manager at a Liberal supermarket.
Plaintiff was forced to sell the house in 1979 because of financial difficulties. She currently resides in a 3 bedroom house which she rents for $375.00 per month. On the sale of the house the husband received $2000.00 which he used to pay off plaintiff's car as well as other debts. He did not get the $4000.00 provided for by the agreement because not enough was realized on the sal...
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