Melichar v. Ost, Civ. No. K-77-391.

• Decision Date: 16 December 1977
• Docket Number: Civ. No. K-77-391.
• Parties: Theodore F. MELICHAR, 76-00921-G v. Betty Jane OST (015).
• Court: U.S. District Court — District of Maryland

445 F. Supp. 1162

Theodore F. MELICHAR, 76-00921-G v. Betty Jane OST (015).

Civ. No. K-77-391.

United States District Court, D. Maryland.

December 16, 1977.

Charles C. Bowie, Rockville, Md., for appellant.

Bert W. Kapinus, Mount Ranier, Md., for appellee.

KAUFMAN, District Judge.

This case involves the attempted discharge in bankruptcy of a payment provision in a marital settlement agreement.¹ The agreement was executed in Illinois in 1974 by defendant Melichar and plaintiff Ost (then Mrs. Melichar). The part of the marital settlement agreement from which the defendant-husband seeks discharge reads as follows:

The husband further covenants and agrees that he shall pay to the wife as and for a lump sum settlement in lieu of alimony, the sum of SIXTY SIX THOUSAND FIVE HUNDRED FIFTY AND NO/100 ($66,550.00) DOLLARS, said sum to be payable at the rate of FIVE HUNDRED FIFTY AND NO/100 ($550.00) DOLLARS per month for a period of ONE HUNDRED TWENTY ONE (121) months, the first of said payments to be made simultaneously with the execution of this agreement by by sic both parties. It is further provided that the husband shall be liable for such monthly installment payments for a period of ONE HUNDRED EIGHT (108) months or nine (9) years, regardless of the remarriage of the wife. The parties further covenants sic and agree that after the expiration of the aforesaid ONE HUNDRED EIGHT (108) months or nine (9) year period, if the wife is already married or if the wife should remarry, the obligation of the husband for any future payments shall abate, however, the husband shall be liable for any past due unpaid installments then due and owing. In the event of the death of the husband or wife, at any time during the ONE HUNDRED TWENTY ONE (121) months, there shall be a one hundred percent (100%) abatement of the respective future installments due and owing to the wife pursuant to the provisions of this agreement.

That part of the contract is exclusively for the benefit of the wife, and contains the only undertaking by the husband relating to maintenance, support or alimony. Other paragraphs of the agreement provide for child support and property divisions.

The agreement was signed in April, 1974; the couple were divorced in Illinois in July, 1974. Plaintiff-wife remarried in August, 1974, becoming Mrs. Ost. In August, 1976, the defendant-husband instituted a bankruptcy proceeding in this Court, seeking inter alia, to be discharged from the above quoted obligations to plaintiff. The latter timely objected to such discharge. Both parties rely upon 11 U.S.C. § 35(a)(7):

(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as * * * (7) are for alimony due or to become due, or for maintenance or support of a wife or child, or for seduction of an unmarried female or for breach of promise of marriage accompanied by seduction, or for criminal conversation; * * *.

Defendant-husband contends that the obligations in question constitute installment payments relating to a lump sum property settlement and are therefore dischargeable.

During the hearing on December 14, 1976 before the Bankruptcy Judge, defendant produced evidence that plaintiff had cohabited with her present husband (Mr. Ost) and had planned to marry the latter, prior to the signing of the agreement, and that the obligations in question in this case were bargained for by plaintiff and agreed to by defendant in order to make plaintiff financially comfortable in her contemplated new marriage. Plaintiff also testified during that hearing that prior to the consummation of the agreement she had planned to remarry soon after divorce, and that the obligations were contracted for by plaintiff and defendant with that consideration in mind.

On February 2, 1977, the Bankruptcy Judge filed the document appended hereto as Attachment A. Defendant, in his within appeal therefrom, challenges the finding below that the obligations were intended to cover "support and maintenance"² and contends that debts relating to marital settlements are excepted from discharge only if they arise from a common law duty to support one's spouse.

The section 35(a)(7) exception was first inserted into the bankruptcy act in 1903. Just before that legislation was adopted, the Supreme Court dealt with the dischargeability of alimony obligations, and the like, in Audubon v. Shufeldt, 181 U.S. 575, 21 S.Ct. 735, 45 L.Ed. 1009 (1901). Subsequent to the 1903 legislation, the Supreme Court, in Dunbar v. Dunbar, 190 U.S. 340, 23 S.Ct. 757, 47 L.Ed. 1084 (1903), and in Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904), considered the question of whether, in each case, an ex-husband's obligation to support his ex-wife was dischargeable in bankruptcy. The section 35(a)(7) exception had not yet become effective at the time of either ex-husband's bankruptcy. In Wetmore, the Court wrote (at 72-77, 25 S.Ct. at 174-176):

In the case of Audubon v. Shufeldt, 181 U.S. 575, 577, 21 S.Ct. 735, 736, 45 L.Ed. 1009, 1010, Mr. Justice Gray, delivering the opinion of the court, said:

"Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. * *"

* * * * * *

* * * We think the reasoning of the Audubon case recognizes the doctrine that a decree awarding alimony to the wife or children, or both, is not a debt which has been put in the form of a judgment, but is rather a legal means of enforcing the obligation of the husband and father to support and maintain his wife and children. He owes this duty, not because of any contractual obligation, or as a debt due from him to the wife, but because of the policy of the law which imposes the obligation upon the husband. The law interferes when the husband neglects or refuses to discharge this duty, and enforces it against him by means of legal proceedings.

* * * * * *

In the case of Dunbar v. Dunbar, decided by this court at the October term, 1902 (190 U.S. 340, 23 S.Ct. 757, 47 L.Ed. 1084), it was held that a contract made after divorce between husband and wife, by which the former agreed to pay the latter a certain sum of money annually for her support during her life, or so long as she remained unmarried, and also to pay a certain sum of money to her annually for the support of the minor children of the marriage, whose custody was awarded to the mother, was not discharged by a subsequent proceeding and discharge in bankruptcy. It was further held that the sum agreed to be paid for the support of the minor children was but a recognition of the liability of the father for their support, and that the fact that the annual instalments were made payable to the wife made no difference in the character of the obligation. Of this feature of the contract the court, speaking by Mr. Justice Peckham, said:

"In relation to that part of the husband's contract to pay for the support of his minor children until they respectively become of age, we also think that it was not of a nature to be proved in bankruptcy. At common law, a father is bound to support his legitimate children, and the obligation continues during their minority. We may assume this obligation to exist in all the states. In this case the decree of the court provided that the children should remain in the custody of the wife, and the contract to contribute a certain sum yearly for the support of each child during his minority was simply a contract to do that which the law obliged him to do; that is, to support his minor children. . . . We think it was not the intention of Congress, in passing a bankruptcy act, to provide for the release of the father from his obligation to support his children by his discharge in bankruptcy, and if not, then we see no reason why his contract to do that which the law obliged him to do should be discharged in that way. As his discharge would not in any event terminate his obligation to support his children during their minority, we see no reason why his written contract acknowledging such obligation and agreeing to pay a certain sum (which may be presumed to have been a reasonable one) in fulfilment thereof should be so discharged. It is true his promise is to pay to the mother; but on this branch of the contract it is for the purpose of supporting his two minor children, and he simply makes her his agent for that purpose."

We think this language is equally applicable to the present case in that aspect of the decree which provides for the support of the minor children. The obligation continues after the discharge in bankruptcy as well as before, and is no more than the duty devolved by the law upon the husband to support his children, and is not a debt in any just sense.

It is urged that the amendment of the law made by the act of February 5, 1903 32 Stat. at L. 797, chap. 487, excepting from the operation of a discharge in bankruptcy a decree for alimony due or to become due, or for the maintenance and support of the wife and minor children, is a legislative recognition of the fact that, prior to the passage of the amendment, judgments for alimony would be discharged. In Dunbar v. Dunbar, 190 U.S. 340, 23 S.Ct. 757, 47 L.Ed. 1084, it was said that this amendment, while it did not apply to prior cases, may be referred to for the purpose of showing the legislative trend in the direction of not discharging an obligation of the bankrupt for the support and maintenance of wife and children. The amendment may also have been passed with a view to settling the law upon this subject, and to put at rest the controversies which had risen from the conflicting decisions of the courts, both state and Federal, upon this question. Indeed, in view of the

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