Stringer, In re, s. 86-2432

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 847 F.2d 549
• Docket Number: Nos. 86-2432,86-2611,s. 86-2432
• Parties: , 19 Collier Bankr.Cas.2d 233, 17 Bankr.Ct.Dec. 1169, Bankr. L. Rep. P 72,297 In re Charles STRINGER, II, Debtor. Charles STRINGER, II, Debtor-Appellant, v. Aristela HUET, Claimant-Appellee.
• Decision Date: 24 May 1988

Page 549

847 F.2d 549 56 USLW 2695, 19 Collier Bankr.Cas.2d 233,
17 Bankr.Ct.Dec. 1169, Bankr. L. Rep. P 72,297 In re Charles STRINGER, II, Debtor.
Charles STRINGER, II, Debtor-Appellant,
v.
Aristela HUET, Claimant-Appellee. Nos. 86-2432, 86-2611. United States Court of Appeals,
Ninth Circuit. Argued and Submitted April 11, 1988.
Decided May 24, 1988.

Page 550

Charles Stringer II, in pro per.

Lowell H. Sucherman, Paul Lewis, Sucherman & Collins, San Francisco, Cal., for claimant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHAMBERS, SNEED and HUG, Circuit Judges.

SNEED, Circuit Judge:

Pro se appellant Charles Stringer, a debtor in bankruptcy proceedings, appeals the district court's judgment affirming the bankruptcy court's decision that a state court's modification of a child support order is exempt from the automatic stay. We reverse.

I.

FACTS AND PROCEEDINGS BELOW

On May 28, 1985, Aristela Huet, the ex-wife of Charles Stringer, filed a motion in the San Francisco Superior Court requesting an increase of $100 monthly in child support payments. On July 5, 1985, Stringer filed a Chapter 7 petition in bankruptcy. About six weeks later, on August 20, 1985, the San Francisco Superior Court granted Huet's motion and modified the child support order by increasing the amount owed by $100 a month. On October 1, 1985, Stringer made a motion in bankruptcy court to have the San Francisco Superior Court's child support modification order declared void. The bankruptcy court denied the motion on the grounds that child support payments were exempt from automatic stays in bankruptcy. Stringer appealed to the district court for the Northern District of California. The district court affirmed the bankruptcy court's decision on July 16, 1986.

At this point things became a bit irregular. Stringer filed a motion to reconsider with the district court on July 22, 1986. Next, about three weeks later, on August 11, 1986, Stringer filed a notice of appeal of the same order. This appeal was given the number 86-2432. Two days later, on August 13, 1986, the district court denied the motion for reconsideration. On August 25, 1986, Stringer filed a second notice of appeal, this time from the order denying reconsideration. This appeal is No. 86-2611. Nos. 86-2432 and 86-2611 have been consolidated for our review.

II.

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. Sec. 157, and the district court's jurisdiction rested on 28 U.S.C. Sec. 158(a). Our jurisdiction is founded on 28 U.S.C. Sec. 158(d) inasmuch as the grant or denial of a motion for relief from an automatic stay is considered a final order. In re American Mariner Indus., Inc., 734 F.2d 426, 429 (9th Cir.1984), abrogated on other grounds, United Savings Ass'n v. Timbers of Inwood Forest Assocs., Ltd., --- U.S. ----, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988).

The notice of appeal in No. 86-2432 is without effect because it was filed during the pendency of the motion to reconsider in the district court. See Fed.R.App.P. 4(a)(4). ¹ "[I]t is as if no notice of appeal were filed at all. And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam). Thus, jurisdiction is lacking in No. 86-2432, but not in No. 86-2611.

III.

DISCUSSION

In this case of first impression we must decide whether modification of a child

Page 551

support order is exempt from the automatic stay 11 U.S.C. Sec. 362(a) provides a debtor in bankruptcy. This case presents a question of statutory construction. To construe a statute we look first to the language of the statute and second to its legislative history to discern its purpose. Brock v. Writers Guild of America West, Inc., 762 F.2d 1349, 1353 (9th Cir.1985). In case of possible conflicting inferences, the language of the statute generally prevails over the legislative history. See Turner v. McMahon, 830 F.2d 1003, 1007 (9th Cir.1987); Foxgord v. Hischemoeller, 820 F.2d 1030, 1032 (9th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 503, 98 L.Ed.2d 502 (1987).

11 U.S.C. Sec. 362(a)(1) of the Bankruptcy Code automatically stays the commencement or continuation of judicial proceedings against the debtor that were or could have been commenced before the bankruptcy petition was filed. Any proceedings in violation of the automatic stay in bankruptcy are void. Kalb v. Feuerstein, 308 U.S. 433, 438-39, 60 S.Ct. 343, 345-46, 84 L.Ed. 370 (1940); 2 L. King, Collier on Bankruptcy p 362.03 (15th ed. 1988). The automatic stay is subject, however, to several narrow exemptions including "the collection of alimony, maintenance, or support." 11 U.S.C. Sec. 362(b)(2). The question then is whether Huet's action for a modification of the child support order amounts to collection of such support.

The district court relied on two arguments in holding that it did. It noted first that, construed literally, the language of Sec. 362(b)(2) supports Stringer's position. The court, however, concluded that the lack of caselaw supporting the literal construction required it to examine the legislative history to determine congressional intent. ² The Senate and House Reports that make up the sparse legislative history speak only in general terms about the goals of Sec. 362(b)(2). "Staying collection of [alimony, maintenance, and support], when...