Troup, In re, 83-3048
| Decision Date | 28 March 1984 |
| Docket Number | No. 83-3048,83-3048 |
| Citation | 730 F.2d 464 |
| Parties | Bankr. L. Rep. P 69,777 In re Douglas Wayne TROUP, Debtor. Pamela M. TROUP, Plaintiff-Appellee, v. Douglas Wayne TROUP, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Ralph C. Buss, Brown, Buss & Jeffries, Painesville, Ohio, for defendant-appellant.
James P. Koerner, Talikka, Ulrich, Koerner & Ischie, Painesville, Ohio, for plaintiff-appellee.
Before EDWARDS and JONES, Circuit Judges, and COOK, District Judge. *
The defendant-appellant in this case, Douglas W. Troup, was divorced from the plaintiff-appellee, Pamela M. Troup, on March 22, 1982. The divorce judgment incorporated the terms of the parties' Separation Agreement, signed on March 5, 1982. The Agreement provided (emphasis added):
2. Division of Property
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d) Alimony: The parties agree that neither shall pay any continuing periodic alimony payment to provide for the support of the other after February 1, 1982, and further agree that neither will at any time in the future seek any such continuing periodic alimony payment, it being agreed that the disposition of property herein provided is in lieu of any future continuing alimony payment.
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3. Prior Debts
Husband agrees to pay any marital debts incurred by the parties including but not limited to May Co., J.C. Penney Co., Sears, Mastercharge, Higbees, Hornes, Winklemans, and Sun America holding wife harmless from any default for nonpayment from the date of the signing of this Agreement....
4. Child Support, Custody and Visitation
The Husband shall pay as child support the amount of $250 per month to be allocated between the two minor children of the marriage plus poundage for the care, maintenance, and support of the minor children.... On February 1, 1984, child support shall automatically increase to $35 per week per child plus poundage.
On April 13, 1982, Douglas Troup ("husband") filed a petition for voluntary bankruptcy, seeking in the petition to discharge $1952.10 in marital debts covered by the Agreement above. On August 30, 1982, Pamela Troup ("wife") filed a complaint alleging that the marital debts are non-dischargeable under 11 U.S.C. Sec. 523(a)(5). * She filed with her complaint an affidavit from her attorney stating that the wife accepted lower child support for the first two years of the Agreement in exchange for the husband's assumption of the marital debts. If not for this exchange, wife would not have agreed to lower child support payments. The parties intended, the attorney stated, that the payment of prior debts be equivalent to a lump sum alimony payment.
The Bankruptcy Court agreed with the wife, holding the debts nondischargeable under 11 U.S.C. Sec. 523(a)(5). The court made the following finding of fact:
8. The agreement to pay the marital debts was intended to be a necessary and inseparable part of the maintenance and support of plaintiff and her two minor children.
The court made the following conclusion of law:
After reviewing the facts in this case, it is clear to this Court that the agreement to make child support payments and to pay a number of marital debts was intended, and was actually in the nature of alimony, maintenance or support. The separation agreement itself notes that the disposition of the property is in lieu of periodic alimony. It did not state the parties waived this right to alimony; rather it stated that the disposition of the property was in place of alimony. Furthermore, it is also clear that plaintiff reduced her request for child support payments for two years, in consideration of the defendant satisfying their mutual debts. It is clear that this particular provision reflects the intent of the parties to have defendant pay the mutual debts in substitution of alimony or child support. The Court, therefore, finds that the sum...
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