Walls v. Hicks (In re Hicks)
Walls v. Hicks (In re Hicks)
Opinion of the Court
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff, Martha Walls, is the former wife of the Debtor and Defendant, Gary Hicks. Plaintiff contends that the monies awarded to her under their Final Judgement and Decree of Divorce
The parties divorced on May 31, 2013. A Georgia State Court
• Marital Residence Debt: Paragraph 3(A) provides the Defendant “shall be solely responsible for making timely payments of the note secured by the marital residence loans and shall pay*915 said note marital residence note [sic] in full within one hundred, eighty (180). days from the entry of this Final Judgment and Decree of Divorce.”4
• Military Retirement Pay: Paragraph 4(A) pertains to the division of “marital property” and provides that the Defendant’s “military disposable retirement pay” is “subject to equitable division” and awards the Plaintiff 60% and the Husband 40%.5
• Remaining Marital Debt: Paragraph 6(B) requires the Defendant to pay “all remaining marital debt,” except the specific debts identified in Paragraph 6(A).6
• Alimony: Paragraph 7 requires the Defendant to pay alimony as follows: “[a] lump sum in the amount of Twenty-five Thousand Dollars ($25,-000.00) to be paid instcmter. Then, beginning May 1, 2013, and continuing on the first day of each month thereafter until [Plaintiff] dies or remarries' or the [Defendant] dies, the sum of Four Thousand Dollars ($4,000.00).”7
• Attorney Fees: Paragraph 8 orders the Defendant to pay Plaintiff $8,000.00 in attorney fees and costs incurred in the divorce proceeding.8
The parties do not dispute the validity of the Divorce Decree or the Defendant’s default on the Divorce Decree Debts. Defendant has not paid off the marital residence note, required by Paragraph 3(A); Defendant has only paid 50% of his military disposable retirement pay to the Plaintiff required by Paragraph 4(A) and still owes the Defendant the 10% in arrear-ages; Defendant has not paid the “remaining marital debt” .required by Paragraph 6(B); and Defendant has not paid Plaintiffs outstanding attorney’s fees as required by Paragraph 8.
Defendant filed for Chapter 7 bankruptcy relief on June 20, 2014. Plaintiff argues the obligations created by the Divorce Decree are not dischargeable under §§ 523(a)(5) and 523(a)(15) of the Bankruptcy Code. Plaintiff bears the burden to establish the nondischargeability of the Defendant’s unfulfilled obligations by a preponderance of the evidence.
Sections 523(a)(5) and 523(a)(15) govern the dischargeability of various claims incident to divorce.
to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph [523(a)] (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit.14
The parties agree that most of the obligations in the Divorce Decree are not dis-chargeable as to the Plaintiff. Defendant concedes (1) the lump sum and periodic alimony debt is a domestic .support obligation nondischargeable under § 523(a)(5) of the Bankruptcy Code,
Defendant raises only two arguments.
Debts to Third-Party Creditors Discharged Except as to the Plaintiff
Defendant argues that his obligations to pay third parties under the Divorce Decree for the mortgage on the mar
Plaintiff presented no evidence other than the Divorce Decree. The Court cannot determine on this sparse record whether the Defendant’s obligation to pay the mortgage on the marital residence is “in the nature of support.” To prevail under § 523(a)(5), a party must prove the debt is “in the nature of support' or alimony.”
The debts the Defendant owes to third parties after the Divorce Decree are dis-chargeable as to the third parties. Section 523(a)(15) only excepts from the discharge obligations owed “to a spouse, former spouse, or child of the debtor.”
Plaintiff’s Share of the Defendant’s Military Retirement Pay is her “Sole Property”
The Parties do not agree on how to treat the Plaintiffs 60% share of the Defendant’s military retirement pay. The Divorce Decree awarded the Plaintiff 60% of the Defendant’s “military disposable retirement pay.”
Plaintiff undisputedly already receives 50% of the Defendant’s military retirement pay directly from the United States gov
Defendant maintains the Divorce Decree granted the Plaintiff a property interest in the retirement pay and did not create a debt he owes his former spouse. Defendant cites In re Petty
“The question of whether or not the Plaintiffs interest in the pension plan is her separate property interest, and thus not part of her former husband’s bankruptcy estate, is determined by reference to state law.”
The Divorce Decree clearly awards the Plaintiff an interest in 60% of the Defendant’s military retirement pension as an equitable division of property. Paragraph 4(A) of the Divorce Decree pertains to the division of “marital property” and provides that the Defendant’s “military disposable retirement pay” is “subject to equitable division” and awards the Plaintiff 60% and the Husband 40%.
This determination however does not end the matter. The military already pays the Plaintiff 50% of the Defendant’s military retirement pay directly. Defendant has failed to remit the remaining 10% to the Plaintiff. As discussed above — and acknowledged by the Defendant — this 10% is the Plaintiffs property. How should this 10% that the government cannot pay directly to the Plaintiff be treated?
When the federal government does not directly pay equitably divided military retirement pay to a former spouse, courts typically hold that the initial recipient-of the military retirement payments — the retired service member — holds the former spouse’s portion in constructive trust for that spouse.
Defendant receives the 10% payment directly from the military and “it is against equity that the title should be retained by” him.
Some courts have held a retired service member’s failure to turn over military retirement pay held in constructive trust to his former spouse can constitute conversion or, in the case of In re Petty, cited by the Defendant, civil theft.
Section 528(a)(15) excepts from the discharge any debt to a “former spouse ... that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce de
Here, the Defendant’s obligation to remit 10% of the military retirement pay to the Plaintiff arose “in connection” with the Divorce Decree. “[T]he scope of § 523(a)(15) is broad.”
In conclusion, all obligations created by the Divorce Decree are not dischargeable including the alimony debt, attorney’s fees, and the marital residence debt and “all remaining debt” in Paragraph 6(B) of the Divorce Decree. Debtor’s direct liability to the third-party creditors however is discharged. Debtor further has a continuing obligation to remit the Plaintiffs share of his military retirement pay to her as a constructive trustee. And the Defendant’s liability for pre-petition failure to remit military retirement payments to the Plaintiff is nondischargeable. A separate final judgment in favor of the Plaintiff and against the Defendant shall be entered simultaneously with this Memorandum Opinion.
ORDERED.
. Final Judgment and Decree for the Dissolution of Marriage, Ex. A to Plaintiffs Complaint, Doc. No. 1.
. All references to the Bankruptcy Code are to 11 U.S.C. § 101 et seq.
. Georgia State Court refers to the Superior Court of Towns County, Georgia.
. Doc. No. 1, Exhibit A at 3.
. Id. at 4.
. Id.
. Id.
. Ex. A at 6 to Plaintiff s Complaint, Doc. No. 1.
. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).
. Schweig v. Hunter (In re Hunter), 780 F.2d 1577, 1579 (11th Cir. 1986).
. Matter of Crosswhite, 148 F.3d 879, 881 (7th Cir. 1998).
. 11 U.S.C. §§ 523(a)(5) & 523(a)(15).
.11 U.S.C. § 101(14A).
. 11 U.S.C. § 523(a)(15).
. Doc. No. 17 at 8. See 11 U.S.C. § 523(a)(5); see generally 11 U.S.C. § 101(14A).
. Doc. No. 17 at 8-9.
.Defendant also asks the Court to affirmatively hold that the remaining obligations do not qualify as domestic support obligations not dischargeable under § 523(a)(5) so he can use the finding as res judicata in a future Chapter 13 bankruptcy case. In a Chapter 13 case, debts falling under § 523(a)(15) are dis-chargeable,. but domestic support debts under § 523(a)(5) are not. In re Silver, No. 12-73950-BEM, 2013 WL 4498813, at *5 (Bankr.N.D.Ga. July 22, 2013) ("The plain language of § 1328 makes clear that obligations that are nondischargeable under § 523(a)(5) are similarly not dischargeable in Chapter 13 while, § 523(a)(15) obligations that would be non-dischargeable in a Chapter 7 case, are generally dischargeable in Chapter 13.”):
In her complaint, the Plaintiff alleges the military retirement pay and the Defendant’s obligation to pay off the note on the marital residence are nondischargeable under § 523(a)(5) as support obligations. But, Plaintiff never introduced evidence on this issue, assumedly because she was confident the same debts were not dischargeable under her alternative theory, § 523(a)(15). Courts cannot rely solely on a divorce decree to determine if an obligation is in the nature of support; a court must "look beyond the label to examine whether the debt actually is in the nature of support or alimony.” Cummings v. Cummings, 244 F.3d 1263, 1265 (11th Cir. 2001). If she intended to proceed on the § 523(a)(5) count, then she would have had the burden to prove that, “at the time of [the debts’] creation the parties intended the obli-gationfs] to function as support or alimony.” Id.
Because these debts indeed are nondis-chargeable under theories different than § 523(a)(5), the Court need not make the determination the Defendant seeks. If he intends to file a Chapter 13 case in seven years in order to discharge these debts, then the appropriate court can make such a determination at that juncture with the benefit of a full record.
. Cummings v. Cummings, 244 F.3d 1263, 1265 (11th Cir. 2001).
. Id. (citing In re Gianakas, 917 F.2d 759, 762 (3d Cir. 1990)).
. .Id.
. 11 U.S.C. § 523(a)(15).
. In re Reinhardt, 478 B.R. 455, 457 (Bankr.M.D.Fla. 2012).
.See In re Washburn, No. 09-80842-MHM, 2010 WL 4117680, at *3 (Bankr.N.D.Ga. Oct. 1, 2010) (holding that, despite the lack of hold harmless or indemnification language, the defendant's divorce obligation to pay off a credit card and reduce mortgage debt "fell within the scope of § 523(a)(15)”).
.Divorce Decree ¶ 4(A).
. Doc. No. 1 ¶ 6(b); Doc. No. 16 at 6.
. 10 U.S.C. § 1408.
. 10 U.S.C. § 1408(c).
. 10 U.S.C. § 1408(d).
. 10 U.S.C. § 1408(e)(1). The direct pay limitation, however, does not restrict state courts from awarding more than 50% of a former service member's retirement pay to his former spouse. See, e.g., Ex parte Smallwood, 811 So.2d 537, 540 (Ala. 2001); Deliduka v. Deliduka, 347 N.W.2d 52 (Minn.Ct.App. 1984).
. In re Petty, 333 B.R. 472 (2005).
. Id. at 477.
. See In re Baker, 274 B.R. 176, 192 (Bankr.D.S.C. 2000) (citing majority case law).
. In re Brown, 168 B.R. 331, 334 (Bankr.N.D.Ill. 1994); accord In re McQuade, 232 B.R. 810, 812 (Bankr.M.D.Fla. 1999).
. Taylor v. Taylor, 283 Ga. 63, 63, 656 S.E.2d 828, 829 (2008) (citations omitted).
. See Wagan v. Wagan, 263 Ga. 376, 434 S.E.2d 475 (1993); Hollis v. Hollis, 278 Ga. 303, 602 S.E.2d 644 (2004).
. Id. at 4.
. See In re Farrow, 116 B.R. 310, 312 (Bankr.M.D.Ga. 1990) (holding, under Georgia law, "if there is an obligation on the Debtor to make the payment in question, he holds any post petition payment that he might receive on his retirement benefit in constructive trust for the Plaintiff to the extent of [the plaintiff's interest]”); see also Bush v. Taylor, 912 F.2d 989, 992-93 (8th Cir. 1990); Matter of Newcomb, 151 B.R. 287, 290 (Bankr.M.D.Fla. 1993); Matter of Sadowski, 144 B.R. 566, 568 (Bankr.M.D.Ga. 1992).
. In re Teichman, 774 F.2d 1395, 1398 (9th Cir. 1985).
. St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137, 508 S.E.2d 646, 648 (1998).
. Georgia Dist. Council of Assemblies of God, Inc. v. Atlanta Faith Mem’l Church, Inc., 267 Ga. 59, 61, 472 S.E.2d 66, 69 (1996) (citing Kelly v. Johnston, 258 Ga. 660, 66(1), 373 S.E.2d 7 (1988)).
. Id.
. In re Thomas, 47 B.R. 27, 33 (Bankr.S.D.Cal. 1984).
. 11 U.S.C. § 101(12).
. 11 U.S.C. § 101(5)(A).
. In re Tanner Family, LLC, 556 F.3d 1194, 1196 (11th Cir. 2009) (quoting Penn. Dep't of Pub. Welfare v. Davenport, 495 U.S. 552, 558, 564, 110 S.Ct. 2126, 2130, 2133, 109 L.Ed.2d 588 (1990)); see also In re Chase & Sanborn Corp., 904 F.2d 588, 595 (11th Cir. 1990) (“It is established that 'debt' is to be given a broad and expansive reading for purposes of the Bankruptcy Code, and that 'when a creditor has a claim against a debtor&emdash;even if the claim is unliquidated, unfixed, or contingent&emdash;the debtor has incurred a debt to the creditor.' ").
. Cf. In re Sweeney, No. 05-1068, 2006 WL 2796737, at *4 (Bankr.D.Vt. Sept. 27, 2006) (“Although the Plaintiff’s interest in the Marital Residence (and any proceeds thereof) was outside the bankruptcy estate, by virtue of the constructive trust created by the divorce decree, the Defendant’s failure to deliver to the Plaintiff his share of the proceeds from a sale of a portion of his interest in the Marital Residence gave rise to a debt in the bankruptcy case.”).
. See In re Thomas, 47 B.R. 27, 33-34 (Bankr.S.D.Cal. 1984) (holding defendant liable for conversion for failing to remit pension payments awarded to plaintiff); In re Petty, 333 B.R. 472, 476 (Bankr.M.D.Fla. 2005) (citing state court award finding defendant liable for civil theft).
. Petty, 333 B.R. at 476.
. Id.
. 11 U.S.C. § 523(a)(15) (emphasis added).
. In re Quarterman, No. 11-07867-SSC, 2012 WL 4965159, at *4 (Bankr.D.Ariz. Oct. 17, 2012) ("A state court judgment to enforce a debt arising from a divorce decree is surely a debt in connection with a divorce decree.”).
. See In re Kearney, 433 B.R. 640 (Bankr.S.D.Tex. 2010) (holding debt from'settlement ■agreement arising from debtor’s failure to remove lis pendens from property as required by divorce decree was "in connection” with divorce decree); In re Taylor, 737 F.3d 670 (10th Cir. 2013) (holding state court judgment in favor of plaintiff against debtor for overpayment of alimony was entered "in connection” with divorce decree).
. In re Adam, No. ADV 12-01295-DS, 2015 WL 1530086, at *9 (9th Cir. BAP Apr. 6, 2015).
Reference
- Full Case Name
- IN RE Gary Robert HICKS and Rhonda Freeman Hicks, Debtors. Martha Jeanette Walls v. Gary Robert Hicks
- Cited By
- 1 case
- Status
- Published