Al-Hamdani v. Al-Akwaa (In re Al-Akwaa)
Al-Hamdani v. Al-Akwaa (In re Al-Akwaa)
Opinion of the Court
The parties participated in an Islamic marriage ceremony as part of which the Defendant agreed to pay a "postponed" $30,000.00 dowry (the "Dowry"). They subsequently divorced, and the divorce court directed the Defendant to pay the Dowry. After the Defendant filed for bankruptcy, his ex-spouse commenced this adversary proceeding to declare the Dowry non-dischargeable, and has now moved for judgment on the pleadings seeking a declaration that the Dowry is non-dischargeable under
BACKGROUND
A. The Parties' Marriage and Divorce
Plaintiff Sama'a Al-Hamdani and Defendant Loaai Al-Akwaa were lawfully married in Virginia, apparently in a civil ceremony, on August 5, 2010. (See Findings of Fact, Conclusions of Law and Judgment of Absolute Divorce , dated October 19, 2015 ("Divorce Decree "), ¶ 12 (ECF Doc. # 1).)
The Plaintiff and Defendant separated approximately five days later, (Divorce Decree ¶ 15), and the Plaintiff filed a Complaint for Absolute Divorce in the Superior Court of the District of Columbia Family Court (the "DC Court") on July 6, 2015.
*84(Id. ¶ 2.) The Defendant filed a Contested Answer and Counterclaim on August 12, 2015, but failed to appear before the DC Court, (id. ¶ 4), and a default was entered against him. (Id. ¶ 5.) The DC Court scheduled a default hearing for September 16, 2015, directed both parties to appear and sent each a notice warning that "[i]n the absence of the Defendant or Respondent, a judgment or order may be entered against the Defendant or Respondent." (Id. ¶ 6.) The Defendant sought a continuance in order to consult with an attorney, (id. ¶ 7), the DC Court granted the continuance and rescheduled the hearing for October 9, 2015, (id. ¶ 8), but the Defendant again failed to appear. (Id. ¶ 10.)
The DC Court issued a Divorce Decree on October 9, 2015. The Divorce Decree contained certain findings of fact, including that the parties had agreed upon the Dowry, (id. ¶ 13), no part had been advanced, and the entire amount had been postponed at the time of the Islamic marriage ceremony. (Id. ¶ 14.) The Divorce Decree did not divide any property or debts between the parties, (Divorce Decree ¶ 17), but the Plaintiff requested payment of the Dowry. (Id. ¶ 18.) Finally, there was no request for alimony. (Id. ¶ 20.)
In addition to granting a divorce, the DC Court held that the "dowry (sadaq) complies with principles of contract law and is therefore an enforceable contract between the parties." (Id. at 4 (citing Akileh v. Elchahal ,
The Plaintiff subsequently filed a motion for contempt in the DC Court apparently based on the Defendant's failure to pay the Dowry, the only obligation imposed on the Defendant under the Divorce Decree . On April 4, 2017, however, the Defendant filed a chapter 7 petition in this Court, and the bankruptcy was pending on the April 11, 2017 return date of the Plaintiff's contempt motion.
Both parties appeared on the return date, (Order , dated Apr. 11, 2017 ("Contempt Order "), at 1 (ECF Doc. # 1) ),
B. This Adversary Proceeding
On June 27, 2017, the Plaintiff submitted a pro se letter to this Court requesting the denial of the discharge of the debt based on the Dowry, arguing that it fell within the exception to discharge under
The Defendant filed an Answer , dated Aug. 15, 2017 (ECF Doc. # 3), in which he admitted that the parties had entered into the Dowry, and the DC Court had held that the Dowry was an enforceable contract. (Id. ¶ 3.) After counsel appeared for the Plaintiff, she filed the Motion. She argued that the Dowry was not dischargeable pursuant to Bankruptcy Code § 523(a)(15) because it was incurred "in connection with a... divorce decree," (Memorandum of Law in Support Of Motion of Plaintiff Sama'a Al-Hamdani for Judgment on the Pleadings Pursuant to Fed R. Bankr. P. 7012 and Fed. R. Civ. P. 12(c) , dated Mar. 22, 2018 ("Plaintiff Memo "), at 5-6 (ECF Doc. # 16) ), or because it is a contractual obligation "incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement." (Id. at 6-10.)
In response, the Defendant initially argued that the Dowry was not a "domestic support obligation," and hence, was dischargeable despite
DISCUSSION
In deciding a motion under Rule 12(c), a court applies the same standards that govern a motion to dismiss for failure to state a claim under Rule 12(b)(6). L-7 Designs, Inc. v. Old Navy, LLC ,
Bankruptcy Code § 523(a)(15) excepts from discharge a debt
to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (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.
The Plaintiff argues that her Dowry is a non-dischargeable debt because the Defendant was directed to pay it in the Divorce Decree and Contempt Order issued by the DC Court, and was, therefore, "incurred in the course of a divorce" and *86"in connection with a ... divorce decree or other order of a court of record." The Bankruptcy Code does not define when a debt is "incurred," Gibson v. Gibson (In re Gibson ),
Here, the Defendant "incurred" a "postponed" obligation to pay the Dowry, presumably contingent on some future event, when he signed the Certificate of Marriage. See In re Pan Trading Corp., S.A. ,
This was the conclusion reached in Sherman v. Proyect (In re Proyect ),
The Proyect court initially rejected the conclusion that a pre-existing obligation recited in a divorce decree or settlement agreement is non-dischargeable under
If Congress did have that intent, it could have simply provided that the exception to discharge applies to all debts addressed in a divorce settlement agreement rather than limiting the scope of the exception to debts "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." ... Thus, rendering every obligation to be nondischargeable simply because it is mentioned in a divorce settlement agreement seems to go far beyond what Congress intended.
More importantly, the mere restatement of an existing obligation between the parties in a settlement agreement does not necessarily create new enforcement rights-and thus a new debt-that did not already exist. The crucial question is: what were the relative rights and obligations of the debtor and the former spouse before and after the divorce?
The Proyect court concluded that the debts relating to the lease and the SBA loan were dischargeable. The parties were already obligated to pay these debts, and even in the absence of the settlement agreement or the divorce decree, each had a state law right to indemnity or contribution from the other if one paid more than 50%. As those debts did not change, the obligations were not "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."
Other courts have interpreted the discharge exception more broadly. They decline to "look under the hood," and conclude that any pre-existing debt recited in a divorce decree is non-dischargeable.
The parties separated a few weeks later, the debtor filed for divorce, and the parties entered into a stipulated judgment in the *88divorce proceeding. Among other things, their stipulation gave the debtor certain credits against the $50,000.00 obligation, fixed the unpaid portion at $41,450.00, imposed an annual interest rate of 8.469% on the unpaid portion, and required the debtor to pay his ex-spouse $600.00 per month until the debt was satisfied. Finally, the stipulated judgment provided that it superseded the post-nuptial agreement which was null and void.
The Ninth Circuit disagreed. It concluded that "the debt is nondischargeable because it was incurred by the debtor as part of the division of property in the course of a judgment of dissolution."
Here, neither the Divorce Decree nor the Contempt Order altered or fixed the terms of the debt that pre-existed the divorce. They simply enforced the debt. Further, the direction to pay the Dowry cannot be viewed as part of a property settlement under the Divorce Decree because the Divorce Decree did not include a property settlement or division of property. Accordingly, the Dowry was not incurred in the course of the parties' divorce or in connection with the Divorce Decree or Contempt Order .
This does not, however, end the matter. The Dowry was not a commercial debt, and the pleadings suggest that it may have been incurred in the course of a separation or in connection with a separation agreement. The term "separation agreement" as used in Bankruptcy Code § 523(a)(15) is not confined to its traditional meaning or labels. Davis v. Saulsbury (In re Saulsbury ), Adv. No. 01-3013,
The pleadings suggest that the Dowry was contracted as part of a post-nuptial agreement made in contemplation of separation and, ultimately, a divorce. No portion of the Dowry was payable when the parties entered into the Certificate of Marriage ; the entire portion was "postponed," i.e. , deferred. Furthermore, the parties separated only five days later. The pleadings imply that parties contemplated that the obligation to pay the Dowry would be triggered by the parties' separation or, more likely, their divorce, and given the *89subsequent divorce, in lieu of any alimony or other division of property. In those circumstances, the debt would be non-dischargeable.
At bottom, this is a contract dispute that cannot be decided on the pleadings. The Court must weigh the parties' testimony and other evidence to determine what they intended when they entered into the Certificate of Marriage that provided for the postponed Dowry. Accordingly, the Motion is denied, and the parties are directed to contact chambers and schedule a pre-trial conference.
So ordered.
The Divorce Decree is attached to the Complaint , filed June 27, 2017 (the "Complaint "). (ECF Doc. # 1.)
Although not part of the pleadings, the parties have not disputed the authenticity of the Certificate of Marriage attached as Exhibit 1 to the Debtor's Opposition to Plaintiff's Motion for Judgment on the Pleadings , dated April 19, 2018 ("Response ") (ECF Doc. # 19).
The Defendant's schedules listed the Plaintiff as a creditor with a claim for $30,000, and indicated that the basis of the claim was "Contract re Ex-Wife's Dowry." (Schedule E/F to Al-Akwaa Voluntary Petition for Individuals , dated April 4, 2017, at 4. (ECF Main Case Doc. # 1.)
The Contempt Order is attached to the Complaint .
The parties have not argued that the Contempt Order or the entry of judgment pursuant to the Contempt Order was a violation of the automatic stay.
The Plaintiff cited several other cases to support her argument that any debt incorporated into a divorce decree is non-dischargeable. (See Plaintiff Memo at 6.) However, all of her authorities involved obligations incurred in the first instance in connection with matrimonial proceedings and did not exist before then. See Levin v. Carlton (In re Carlton ), Adv. No. 15-01099,
Reference
- Full Case Name
- IN RE: Loaai AL-AKWAA, Debtor. Sama'a Al-Hamdani v. Loaai Al-Akwaa
- Cited By
- 1 case
- Status
- Published