Matter of Smith
| Decision Date | 14 March 1980 |
| Docket Number | Bankruptcy No. 79-701-A. |
| Parties | In the Matter of Jeff Alexander SMITH, Bankrupt. Margaret MAHONEY, Plaintiff, v. Jeff Alexander SMITH, Defendant. |
| Court | U.S. District Court — Virgin Islands, Bankruptcy Division |
Gregory E. Stambaugh, Alexandria, Va., for plaintiff.
George F. Bason, Jr., Washington, D.C., Charles B. Sullivan, Arlington, Va., for defendant/bankrupt.
Bennett A. Brown, Fairfax, Va., trustee in bankruptcy.
MARTIN V.B. BOSTETTER, Jr., Bankruptcy Judge.
Trial was held on this matter on January 18, 1980, based upon a Complaint filed by the plaintiff, Margaret Mahoney, to ascertain the dischargeability of certain debts and counsel fees reduced to Final Judgment by the Superior Court for the District of Columbia, dated November 15, 1978, pursuant to the provisions of Section 17a(7) of the Bankruptcy Act (11 U.S.C. § 35(a)(7)).
Before proceeding to resolve the issues raised in the pending case, it may be best to establish the factual history of the instant matter as set forth in three judgments entered by the Superior Court for the District of Columbia between February 1974 and December 1978.
The chronology is as follows:
Plaintiff sought a Judgment of Limited Divorce which came on for trial on January 24, 1974, before the Domestic Relations Branch of the Family Division of the Superior Court for the District of Columbia. The judgment, granting a limited divorce, was entered on February 20, 1974.
Plaintiff and defendant-bankrupt, Jeff Alexander Smith, were married on August 7, 1971. No children were born of the marriage. The parties separated from each other on or about February 10, 1973.
The Superior Court found that while the plaintiff earned only about $90.00 per week when working full time, defendant received $741.00 per month whether he worked or not. Defendant was capable of working and, in fact, did so to earn extra income, whereas the plaintiff was incapable of working full time due to poor health. The court awarded the plaintiff $50.00 per month as separate maintenance and support to be paid to her by the defendant.
The Superior Court determined that the parties had incurred various debts, to wit: "joint or joint-and-several obligations for loans and purchases of merchandise, all of which have inured to the sole benefit of defendant." The Court also determined that "as between plaintiff and defendant, plaintiff should not be required to bear the burden of any future payments on any of the said joint or joint-and-several obligations." In addition, the court awarded the plaintiff counsel fees in the amount of $1,200.00. Provision was made for the division of personal property as between the parties. The Order of the Superior Court also required the defendant to support the plaintiff by awarding her an "additional amount, if any, as may be needed to reimburse plaintiff for any payments which she may hereafter from time-to-time be required to make on account of any joint or joint-and-several obligations heretofore incurred by the parties."
The decree of limited divorce was enlarged to an a vinculo decree by the Superior Court on December 30, 1975. The court made a further award to the plaintiff of counsel fees in the amount of $250.00 but decreed that she was not entitled to alimony. The a vinculo decree entered by the court was silent on the issue of payment by defendant to reimburse plaintiff on any future payments pertaining to joint or joint-and-several obligations previously incurred by the parties.
On April 14, 1978, plaintiff filed a motion with the Superior Court seeking, among other things, to correct or modify the decree and for additional counsel fees. A hearing was held before the Superior Court on June 28, 1978.
The Superior Court entered a Judgment Order on November 15, 1978, granting plaintiff's motion with the exception of awarding plaintiff's counsel additional fees. It is the various provisions as set forth in said November 15th order which bring this controversy before this Court for resolution.
A discharge in bankruptcy releases the bankrupt from all provable debts, except those which the Court determines to be liabilities "for alimony due or to become due, or for maintenance or support of the wife. . . ." 11 U.S.C. § 35(a)(7). The public policy rationale which led to the enactment of this section rested on the belief that alimony, whether due or not, was not a debt in the legal sense, but rather the enforcement of a marital duty. Westmorland v. Dodd, 2 F.2d 212 (5th Cir. 1924). The term "alimony" as applied to Section 35(a)(7) means payment in the nature of maintenance or support for the former spouse. Nichols v. Hensler, 528 F.2d 304, 308 (7th Cir. 1976). The principal difficulty encountered by the Court in enforcing this section is in making a determination as to what constitutes alimony by way of maintenance or support.
Congress amended the Bankruptcy Act in 1970 to increase the jurisdiction of the Bankruptcy Courts. 11 U.S.C.A. § 11(a)(12) (Cum.Supp.1979).1 This enlargement of jurisdiction was meant "to effectuate, more fully, the discharge in bankruptcy by rendering it less subject to abuse by harassing creditors." H.R.Rep.No.91-1502, 91st Cong. 2d Sess. 2 (1970), U.S.Code Cong. & Admin.News 1970, p. 4156. Although the issue of dischargeability under Section 35(a)(7) must ultimately be one for resolution by the Court applying federal law within the meaning of the statute, the local law, in this case that of the District of Columbia, must be examined in order to determine what constitutes support, maintenance or alimony. See Waller v. Waller, 494 F.2d 447, 448 (6th Cir. 1974).
The record before the Court in the pending case presents two principal issues which must be resolved: (1) whether the Superior Court's decree requiring defendant to pay prior joint-and-several obligations constitutes alimony; (2) whether the awarding of counsel fees by the Superior Court constitutes alimony. Before these issues may be considered, however, the Court must determine whether the Superior Court's Judgment Order of November 15, 1978, which purports to correct or modify a final decree of divorce entered by the Superior Court on December 30, 1975, may be given full legal effect.
Although the District of Columbia Court of Appeals has recently recognized the issue of whether alimony once denied in a decree of final divorce may be revived in a subsequent proceeding, it has refused to determine the issue on the grounds that the issue was not properly before the court. This reluctance on the Court of Appeals' part was most recently demonstrated in Wright v. Wright, 386 A.2d 1191, 1194 n. 9 (D.C.App. 1978), where the court in a footnote observed: "because Mrs. Wright has not appealed the trial court's denial of alimony, we need not consider whether that denial constituted, in effect, a modification for which separate findings are required."
In another recent decision, the Court of Appeals did overturn and vacate a Superior Court ruling which held that in view of the fact that the subject of alimony, or a reservation thereof, was not alluded to in a property settlement agreement, the wife was forever foreclosed from claiming alimony. Smith v. Smith, 310 A.2d 229, 230-31 (D.C.App.1973). The Smith court, however, based its decision on the belief that the Superior Court, in making its ruling on the alimony issue, had rendered an advisory opinion. In dicta, the court observed that a determination of the wife's alimony rights would have been a justiciable issue if she had sought alimony in a specific amount. Id. at 231.
Several early decisions by the District of Columbia Court of Appeals acknowledge that once an order granting a divorce is entered which allows an award of alimony, the court necessarily retains jurisdiction over the "parties and the cause with authority to enter further and additional orders respecting the alimony of the wife. . . ." Davis v. Davis, 61 App.D.C. 48, 50, 57 F.2d 414, 416 (D.C.App.1932). See Trotter v. Trotter, 87 U.S.App.D.C. 213, 183 F.2d 997 (D.C.App.1950). This jurisdiction continues until such time as the court's orders and decrees are made effective in the determination of the issue. See Elkins v. Elkins, 55 App.D.C. 9, 12, 299 F. 690, 693 (D.C.App.1924).
By statute, the District of Columbia codified the decision reached by the Court of Appeals as expressed in Davis v. Davis, supra. Title 16, Section 913, D.C.Code (Supp. V 1976) states in pertinent part: "after a decree of divorce in any case granting alimony . . . the case shall still be considered open for any future orders in those respects." The predecessor statute to this section, Title 16, Section 413, D.C.Code 1940, was construed by the District of Columbia Court of Appeals in Heckman v. Heckman, 83 F.Supp. 687 (D.C.1949). Heckman involved court approval of a property settlement which was incorporated in a judgment of absolute divorce that provided for a complete settlement of the parties "respective property rights and `all claims for alimony, etc.'" Id. at 688. The wife thereafter sought an increase in the allotment made to her. The husband opposed the wife's action on the grounds that the court no longer retained jurisdiction as to the issue of alimony. He asserted the position that the court confirmed the agreement as a contractual matter, not as alimony.
The court in Heckman required that for alimony to be granted after a decree of divorce, it must appear that the applicable statute in the decree was not only intended to grant such a right, but that the moving party was in full compliance with the terms of the statute. 83 F.Supp. at 688. A statute which authorizes the modification of decrees granting alimony is generally held not to authorize an award of alimony after a judgment of final divorce which denies alimony. The Heckman court held that a statute which permits the modification of an alimony award made in a final decree of...
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