Matter of Tope, Bankruptcy No. 3-80-0400

• Decision Date: 26 November 1980
• Docket Number: Adv. No. 3-80-0148.,Bankruptcy No. 3-80-0400
• Citation: 7 BR 422
• Parties: In the Matter of Monte Samuel TOPE, Debtor. Emily S. TOPE, Plaintiff, v. Monte Samuel TOPE, Defendant.
• Court: U.S. Bankruptcy Court — Southern District of Ohio

7 B.R. 422 (1980)

In the Matter of Monte Samuel TOPE, Debtor Emily S. TOPE, Plaintiff, v. Monte Samuel TOPE, Defendant.

Bankruptcy No. 3-80-0400, Adv. No. 3-80-0148.

United States Bankruptcy Court, S.D. Ohio, W.D.

November 26, 1980.

John R. Butz, Springfield, Ohio, for defendant.

Thomas J. Grady, Springfield, Ohio, for plaintiff.

Paul D. Malina, Springfield, Ohio, trustee.

DECISION AND ORDER

CHARLES A. ANDERSON, Bankruptcy Judge.

This matter is before the Court for disposition of the plaintiff's complaint to determine the dischargeability of certain debts of the above debtor. The following decision is based upon the Court's Pretrial Order, the evidence adduced at the trial held August 15, 1980 and the parties' post-trial memoranda.

Monte S. Tope, the above defendant, filed his petition for relief under Chapter 7 of Title 11 United States Code on February 21, 1980. He has listed $1,700.00 of priority claims, approximately $11,000.00 of secured claims and approximately $10,400.00 of unsecured claims. There is no real property in the estate, however the debtor has listed $24,253.00 worth of personal property.

The debtor and Emily S. Tope, the within plaintiff, were formerly husband and wife, their marriage having been dissolved by Decree of the Common Pleas Court of Champaign County, Ohio dated July 18, 1979. As part of the Decree of Dissolution and incorporated by reference therein was the parties' Separation Agreement dated June 8, 1979. In that agreement, the within debtor agree to relinquish certain property rights to the plaintiff, pay certain of the couple's joint debts and hold the plaintiff harmless from liability on said debts.

The dispute presently before the Court has arisen because the debtor is now attempting to obtain a discharge in bankruptcy from liability for several of the debts provided for in the Separation Agreement. The plaintiff contends that such debts are nondischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(5) because the debtor's agreement to pay them and hold the plaintiff harmless is in the nature of alimony, support and maintenance of the plaintiff. In opposition, the defendant contends the liabilities are dischargeable pursuant to 11 U.S.C. § 523(a)(5)(B) because the payments on the plaintiff's behalf were intended to be in the nature of a division of property rather than alimony, support or maintenance. In addition to this claim, the plaintiff contends that the defendant is liable for reimbursing her for several payments she made to creditors during the parties' marriage because these creditors were among those listed in the Separation Agreement for which he was to hold the plaintiff harmless.

Recently, in the case of Sturgell v. Sturgell, Adv. No. 3-80-0348, this Court treated the issue of the dischargeability of a debtor's obligation in connection with a separation agreement and dissolution to assume responsibility for payment of a spouse's debts or marital debts. We find that our analysis of the law in that case is on point with the legal question presented in the case at bar. Thus, presently, we are faced with the task of applying the facts in this case to the law as set forth in Sturgell v. Sturgell, supra.

As of the time of their dissolution, the parties had been married for twenty-four years. One child was born of this marriage; but, because the child had reached majority at the time of dissolution, the defendant has no obligation to pay child support to the plaintiff, and the agreement does not contain any contractual obligation for him to do so.

Paragraph two of the Separation Agreement indicates the parties owned certain furniture, equipment and appliances which the husband conveyed and assigned to the wife. He agreed to pay any mortgage indebtedness encumbering the property and further agreed to hold the wife harmless from liability on such indebtedness.

Paragraph three states the parties owned real estate known as 5052 Valley Pike, which real estate was mortgaged to Springfield Federal Savings and Loan Association. The husband conveyed all of his right, title and interest in the property to the wife and agreed to pay the mortgage payments, utility expenses, telephone bill, real estate taxes and insurance. The wife agreed to continue to occupy the house; however, she further agreed to make her best effort to sell the property and pay-off the mortgage.

Paragraph four shows that the wife was the owner of a 1972 automobile and that the husband waived all claim or interest in said auto; nevertheless, the husband agreed to pay any repair expenses due at that time. The husband was the owner of an IHC Scout and a 1972 International Harvester tractor; however, the wife agreed to waive all claim or interest in the said vehicles. The husband agreed to pay any mortgage indebtedness on his vehicles and hold the wife harmless therefrom.

Paragraph five contains the provisions which precipitated the adversarial matter herein. The husband thereby agreed to pay the then existing indebtedness owing by the parties to the creditors listed in that paragraph. The crucial language of the paragraph states that "notwithstanding the filing of any proceeding in bankruptcy by the husband, he shall indemnify and hold the wife harmless from any of the above listed debts should any of said creditors collect money from her."

Paragraph six contains the parties' agreed terms for periodic alimony for the wife. The terms of that paragraph have been stipulated in the present matter; consequently, we hold that paragraph six created an obligation from the husband to the wife for periodic alimony and that such obligation is nondischargeable in bankruptcy.

In paragraph seven, the husband agreed to pay for the...