Wohleber v. Skurko (In re Wohleber)
| Decision Date | 04 March 2019 |
| Docket Number | No. 18-8008,18-8008 |
| Parties | IN RE: Lawrence James WOHLEBER, Jr., Debtor. Lawrence James Wohleber, Jr., Plaintiff-Appellant, v. Jennifer Skurko; Leslie A. Gentile, Defendants-Appellees. |
| Court | Bankruptcy Appellate Panels. U.S. Bankruptcy Appellate Panel, Sixth Circuit |
ARGUED: Antoinette E. Freeburg, FREEBURG LAW FIRM, L.P.A., Mayfield Village, Ohio, for Appellant. Kenneth P. Frankel, SMITH & SMITH, Avon Lake, Ohio, for Appellee Skurko. Brian D. Sullivan, REMINGER CO., L.P.A., Cleveland, Ohio, for Appellee Gentile. ON BRIEF: Antoinette E. Freeburg, FREEBURG LAW FIRM, L.P.A., Mayfield Village, Ohio, for Appellant. Kenneth P. Frankel, SMITH & SMITH, Avon Lake, Ohio, for Appellee Skurko. Brian D. Sullivan, James O'Connor, REMINGER CO., L.P.A., Cleveland, Ohio, for Appellee Gentile.
Before: HARRISON, HUMPHREY, and OPPERMAN, Bankruptcy Appellate Panel Judges.
The debtor appellant, Lawrence J. Wohleber ("Wohleber"), is appealing an order of the bankruptcy court for the Northern District of Ohio dismissing his complaint seeking damages under 11 U.S.C. § 362(k) for violations of the automatic stay by his former wife, appellee Jennifer Skurko ("Skurko"), and her attorney, appellee Leslie Gentile ("Gentile"). The adversary complaint alleged that Skurko and Gentile violated the stay by allowing the post-petition sentencing portion of a pre-petition contempt proceeding to continue despite their knowledge that the automatic stay was in effect. At sentencing, Wohleber was ordered confined to jail until he paid a property settlement previously ordered by the domestic relations court. Ruling from the bench on a motion for judgment on partial evidence at the conclusion of Wohleber's case, the bankruptcy court found no violation of the automatic stay occurred because: a) the former wife and her counsel did not take affirmative action post-petition to try to collect the debt, such as trying to negotiate a settlement of the property settlement award; and b) there was no affirmative action they could take to prevent the domestic relations judge from jailing the debtor for nonpayment of the property settlement because the contempt motion was already ruled upon, and therefore could not be withdrawn, and all that was left was for the judge to "sentence" the debtor for his contempt of her order.
Wohleber framed his only issue on appeal as "[w]hether the Bankruptcy Court erred in granting Judgment in favor of Defendants Gentile and Skurko." To address Wohleber's single assignment of error, the panel will address two underlying issues:
The United States District Court for the Northern District of Ohio has authorized appeals to the Panel, and no party has timely filed to have this appeal heard by the district court. 28 U.S.C. §§ 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right. 28 U.S.C. § 158(a)(1). For the purpose of an appeal, a final order is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Midland Asphalt Corp. v. U.S. , 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (quoting Van Cauwenberghe v. Biard , 486 U.S. 517, 521, 108 S.Ct. 1945, 1949, 100 L.Ed.2d 517 (1988) ) (internal quotation marks omitted). The order before the Panel grants a motion for a directed verdict to Skurko and Gentile and fully disposes of the adversary proceeding, making it a final order. Geberegeorgis v. Gammarino (In re Geberegeorgis ), 310 B.R. 61, 63 (6th Cir. BAP 2004) ) ("[A]n order that concludes a particular adversarial matter within the larger case should be deemed final and reviewable in a bankruptcy setting.").
The Bankruptcy Court's decision was rendered as a judgment on partial evidence at the conclusion of Wohleber's presentation of evidence. Federal Rule of Bankruptcy Procedure 7052 makes Federal Rule of Civil Procedure 52 applicable to adversary proceedings. Rule 52(c) provides that in a bench trial, at the conclusion of a party's presentation of evidence, "the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue," but that judgment "must be supported by findings of fact and conclusions of law as required by Rule 52(a)." The judgment's conclusions of law are reviewed de novo, and its findings of fact are reviewed for clear error. Sharp ex rel. Estate of Sharp v. United States , 401 F.3d 440, 442 (6th Cir. 2005).
"Under a de novo standard of review, the reviewing court decides an issue independently of, and without deference to, the trial court's determination." Menninger v. Accredited HomeLenders (In re Morgeson ), 371 B.R. 798, 800 (6th Cir. BAP 2007). Essentially, the reviewing court decides the issue "as if it had not been heard before." Mktg. & Creative Sols., Inc. v. Scripps Howard Broad. Co. (In re Mktg. & Creative Sols., Inc. ), 338 B.R. 300, 302 (6th Cir. BAP 2006). "No deference is given to the trial court's conclusions of law." Id. A factual 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." Kraus Anderson Capital, Inc. v. Bradley (In re Bradley ), 507 B.R. 192,196 (6th Cir. BAP 2014) .
Since April 2004 Wohleber and Skurko have been involved in a protracted divorce and parentage proceeding. See Wohleber v. Skurko , Case No. 04DU063421, Common Pleas Court of Lorain County, Ohio, Domestic Relations Division. The state court granted their divorce and entered a property settlement in Skurko's favor in 2006. On October 11, 2012, after several appeals and a rehearing on remand, the state court ordered Wohleber to pay Skurko $ 36,459.33 for her share of the marital estate within 21 days (the "property settlement"). Over the next nine months the parties litigated and appealed several issues related to the property settlement. These issues were resolved by the state court in a hearing held on July 22, 2013 through which the court found Wohleber in contempt for failure to pay the property settlement, allowed him to purge his contempt by paying the property settlement in full by October 1, 2013, and set a sentencing hearing for October 8 in the event he did not pay the property settlement.
On October 4, 2013 Wohleber filed a Chapter 13 bankruptcy petition in the Northern District of Ohio, Bankruptcy case no. 13-17042, which fell between the October 1 deadline to purge his contempt1 and the October 8 hearing to impose a sentence for contempt (the "sentencing hearing").2 A suggestion of bankruptcy was filed in the divorce proceeding on the same day.
Before the sentencing hearing on October 8, Judge Debra L. Boros met with counsel in chambers. This chambers meeting was not recorded in any fashion. Later, on the record, the judge indicated she met with counsel in her chambers to give both parties the opportunity to explain why the sentencing hearing was stayed by the bankruptcy petition, despite her research concluding otherwise. She also gave the parties one last opportunity to negotiate a compromise to purge the contempt. In a short hearing, Judge Boros concluded that since the $ 36,458.33 had not been paid, nor a compromise reached, she had no choice but to sentence Wohleber to 30 days in jail. The relevant portion of the hearing is as follows:
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