Thirtyacre, Matter of

• Decision Date: 28 September 1994
• Docket Number: No. 93-3967,93-3967
• Citation: 36 F.3d 697
• Parties: Bankr. L. Rep. P 76,124 In the Matter of Marvin C. THIRTYACRE, Debtor-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 697

36 F.3d 697

Bankr. L. Rep. P 76,124

In the Matter of Marvin C. THIRTYACRE, Debtor-Appellant.

No. 93-3967.

United States Court of Appeals Seventh Circuit.

Argued June 3, 1994.

Decided Sept. 28, 1994.

Stephen T. Fieweger, Katz, McAndrews, Balch, Lefstein & Fieweger, Rock Island, IL (argued), for appellee.

Gregory J. McHugh, Mark A. Appleton (argued), Appleton & McHugh, Aledo, IL, for debtor-appellant.

Before CUDAHY and MANION, Circuit Judges, and GORDON, District Judge. ^*

MANION, Circuit Judge.

Jody Thorp obtained a $25,000 default judgment against Marvin Thirtyacre when he did not show up in court to defend against an alleged assault and battery. Thirtyacre filed bankruptcy and Thorp challenged the dischargeability of the debt. The bankruptcy court held an evidentiary hearing and determined the debt was nondischargeable under 11 U.S.C. Sec. 523(a)(6) because it resulted from a willful and malicious injury. 154 B.R. 497. Thirtyacre appealed, the district court affirmed, and he appeals to this court. We affirm.

I. Background

Marvin Thirtyacre was the Sheriff of rural Mercer County, Illinois. He suspected that his wife was having an affair with Jim Brokaw, the Chief of Police for the City of Aledo. Thirtyacre, a veteran of the Vietnam war, became depressed and began visiting the local veterans' hospital for treatment. The doctors at the hospital prescribed Pamelor, a powerful antidepressant drug, and warned him not to take it with alcoholic beverages.

Thirtyacre's suspicions festered. Even with the drug, he continued to experience depression. One day he consumed a large quantity of alcohol and decided to confront Brokaw about the suspected affair. He went to the residence of Judy Thorp--whom Brokaw was officially dating at the time--and kicked in the back door. Nobody was there. Thirtyacre then went to the Aledo police station, hoping to find Brokaw.

In the meantime, Brokaw and Thorp returned to her residence and discovered that the back door had been damaged. Brokaw called the Aledo police station, where Thirtyacre had just arrived. When Thirtyacre heard that Brokaw was on the phone, he grabbed it and--as he describes the conversation in his brief--"argued with Mr. Brokaw on the phone and told him that he was going to return to the Thorp residence to kick Jim Brokaw's posterior region."

Upon hearing this threat, Brokaw went outside to his truck to fetch a gun. Thorp went to her front yard to walk her dog. Thirtyacre arrived and approached the house. Thorp demanded that Thirtyacre leave her property. He responded he was the Sheriff and could do as he pleased. Thorp approached Thirtyacre, and he hit her in the neck, knocking her down. Brokaw and some other police officers who had arrived on the scene then subdued Thirtyacre.

Thorp sued Thirtyacre in state court for assault and battery. He did not respond to the suit and the state court granted Thorp a $25,000 default judgment. Thirtyacre then filed a voluntary petition for a Chapter 7 bankruptcy, seeking to have all of his debts discharged. Thorp filed an adversary complaint in that proceeding, claiming that the $25,000 judgment was nondischargeable because it resulted from a willful and malicious injury. Section 523(a)(6) of the Bankruptcy Code, 11 U.S.C. Sec. 523(a)(6), provides that "(a) A discharge ... does not discharge an individual debtor from any debt ... (6) for willful and malicious injury by the debtor to another entity or the property of another entity...."

The bankruptcy court held an evidentiary hearing to determine whether Thirtyacre's violence was willful and malicious. Thirtyacre argued that because he was drunk and under treatment for depression, he could not form the requisite intent under section 523(a)(6). Thorp countered that on the night of the assault, Thirtyacre appeared in control of his faculties. The court agreed with Thorp, concluding that Thirtyacre "showed a pattern associated with a person who knew what he was doing." Thirtyacre appealed to the district court, which affirmed without hearing oral argument. In its order resolving the appeal, the district court noted:

As the Bankruptcy Court found, it is difficult to accept Thirtyacre's argument that he was "completely out of control" at the time of the assault and battery of Thorp, yet was able to drive from a tavern, to his home, to Thorp's home, to the police station, and then back to Thorp's home. Thirtyacre was understandably upset and angry over his suspicion that his wife and Brokaw were having an affair, but this does not excuse his deliberate and intentional conduct. Thirtyacre clearly wanted to find and confront Brokaw on the night of December 21, 1988. However, when Thorp got in Thirtyacre's way, he intended to strike Thorp.

Thirtyacre has appealed the district court's judgment. He raises two issues. First, he argues that the bankruptcy court erred in finding that he acted willfully and maliciously. Second, he contends that the district court erred in not allowing oral argument so that he could make this point.

II. Analysis

A. Dischargeability

At the bankruptcy hearing, Thorp, as creditor, had the burden to prove by a preponderance of the evidence that her debt met one of the statutory exceptions to discharge. In re Scarlata, 979 F.2d 521, 525 (7th Cir.1992). Thorp met this burden, basically, by recounting Thirtyacre's actions. The court found that Thirtyacre acted willfully and maliciously in striking Thorp, and therefore refused to discharge the debt. We review de novo the bankruptcy court's and the district court's legal conclusions, and we apply the deferential "clearly erroneous" standard to the factual findings. In re Kimzey, 761 F.2d 421, 423 (7th Cir.1985). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

We give effect to the words of the statute by viewing their plain meaning. Matter of Witkowski, 16 F.3d 739, 745 (7th Cir.1994). "Under Sec. 523(a)(6), of the Bankruptcy Code, willful means deliberate or intentional ... [and] [m]alicious means in conscious disregard of one's duties or without just cause or excuse; it does not require ill-will or specific intent to do harm." Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir.1986) (internal quotations omitted). Whether an actor behaved wilfully and maliciously is ultimately a question of fact reserved for the trier of fact. Id.; see also In re Pasek, 983 F.2d 1524, 1528 (10th Cir.1993). After a full-blown evidentiary hearing, the bankruptcy court found that Thirtyacre acted intentionally and without just cause in striking Thorp. We are not left with the definite and firm conviction that a mistake has been committed. To the contrary, the circumstances of the attack showed that Thirtyacre had plenty of time to deliberate before finally confronting Brokaw. When Thorp got in his way he hit her; nobody disputes that. By all appearances this battery was intentional and unjustified.

Thirtyacre tries to escape the "willful and malicious" label by arguing that he was drunk and under treatment for depression during the attack. He posits that his drunkenness and depression necessarily negated the willful and malicious elements of section 523(a)(6); essentially, he sought to advance something akin to a voluntary intoxication defense. Cf. Wagner v. State, 474 N.E.2d 476, 488 (Ind.1985). It is unclear whether such a theory of...