19-3331 In re: Melissa Ann Maresca

United States Court of Appeals for the Second Circuit _______________

AUGUST TERM, 2020

(Argued: October 22, 2020 Decided: December 14, 2020)

Docket No. 19-3331 _______________

IN RE: MELISSA ANN MARESCA,

Debtor. _______________

TERRY DONOVAN,

Creditor-Appellant,

—v.—

MELISSA ANN MARESCA,

Debtor-Appellee. _______________

Before: NEWMAN, KATZMANN, and BIANCO, Circuit Judges. _______________

Creditor-appellant Terry Donovan appeals from a judgment of the United States District Court for the District of Connecticut (Underhill, C.J.) affirming an order of the United States Bankruptcy Court (Nevins, B.J.) granting debtor- appellee Melissa Ann Maresca’s motion to avoid a judicial lien. Pursuant to

(d)(1) and (f)(1)(A), Maresca seeks to exempt her interest in, and avoid a judicial lien upon, a property that her dependent son uses as a non-primary residence. Because we agree with the courts below that the term “residence” in the so-called homestead exemption of § 522(d)(1) includes both primary and non- primary residences, we AFFIRM the judgment of the district court. _______________

JEREMIAH DONOVAN, Old Saybrook, CT, for Creditor-Appellant.

GREGORY F. ARCARO, Grafstein & Arcaro, LLC, New Britain, CT, for Debtor-Appellee. _______________ KATZMANN, Circuit Judge:

A debtor who cannot satisfy her obligations may seek a fresh start through

personal bankruptcy. To facilitate this fresh start, and to allow her to “maintain an

appropriate standard of living as [she] goes forward after the bankruptcy case,”

the Bankruptcy Code provides that the debtor may “exempt” certain property

from the pool of assets available to satisfy her creditors. 4 Collier on Bankruptcy

¶ 522.01 (16th ed. 2020); see

.

The exemption at issue here is the so-called “homestead” exemption, which

allows the debtor to exempt a portion of her interest in property that she or her

dependent “uses as a residence.”

(d)(1). The sole question in this

appeal is whether the term “residence” also includes non-primary residences. We

hold that it does.

2 This question arises on an appeal by creditor-appellant Terry Donovan of a

judgment of the district court (Underhill, C.J.) affirming an order of the bankruptcy

court (Nevins, B.J.) granting debtor-appellee Melissa Ann Maresca’s motion to

avoid a judicial lien. Because we agree with the lower courts that Maresca may

exempt her interest in her dependent’s non-primary residence, we affirm the

judgment of the district court.

BACKGROUND

The relevant facts are undisputed. In 2005, debtor-appellee Melissa Ann

Maresca and her then-husband Charles Crilly bought a house (the “Property”) in

Essex, Connecticut. Though now divorced, Maresca and Crilly jointly own the

property. Crilly uses the Property as his primary residence, and Maresca lives in

an apartment in a nearby town. Per their divorce decree, Maresca and Crilly share

joint custody of their son, who resides primarily with Maresca but who spends

several days each week with Crilly at the Property and attends school in the town

where the Property is located.

In 2011, Maresca retained creditor-appellant Terry Donovan as her attorney

in her divorce action against Crilly. After a lengthy representation, Donovan

secured a favorable arbitration award for Maresca, which was subsequently

3 confirmed as part of the divorce decree. Following the divorce, Donovan brought

an action against Maresca for unpaid legal fees, and in 2015, Donovan was

awarded a judgment of $70,943.40 plus interest. A lien recording the judgment was

placed on the Property.

In 2016, Maresca filed for Chapter 7 bankruptcy. She claimed an exemption

in her interest in the Property under

(d)(1), and sought, under

(f), to avoid the liens that Donovan and another creditor had placed

on the Property.

When a debtor files for bankruptcy, she may “exempt” certain interests from

her “estate,” thus removing them from the pool of assets available to satisfy her

creditors.

(b)(1); see also

§ 541(a)(1) (defining property of the

estate to include “all legal or equitable interests of the debtor in property as of the

commencement of the [bankruptcy] case”). With some exceptions not relevant

here, a debtor may also “avoid the fixing of” judicial liens on encumbered property

that would otherwise be subject to an exemption. Id. § 522(f)(1)(A); see Owen v.

Owen,

, 311–13 (1991).

4 The federal exemption at issue in this case, 1 referred to as the “homestead”

exemption, allows the debtor to exempt—and thereby avoid a judicial lien upon—

her “aggregate interest, not to exceed [$23,675 2] in value, in real property or

personal property that the debtor or a dependent of the debtor uses as a

residence.”

§ 522(d)(1) & (f)(1)(A); see 4 Collier on Bankruptcy ¶ 522.09[1].

Maresca acknowledged in her motions that she does not reside at the Property,

but she argued that she is nevertheless entitled to this exemption and the

avoidance of the liens on the Property because her dependent son uses the

Property as his non-primary residence. Donovan opposed the motion on the

ground that the term “residence” in § 522(d)(1) should be read to mean “primary

residence.”

The bankruptcy court (Nevins, B.J.) granted Maresca’s motion to avoid the

lien, concluding that Maresca’s interest in the Property was exempt under

1 The federal Bankruptcy Code provides a list of exemptions that a debtor may claim. See

(b)(2) & (d). Each state also provides its own list. See

§ 522(b)(3). The Bankruptcy Code directs a debtor to choose either the federal list or the list provided by her state, unless that state’s law restricts the debtor to the state’s list. See id. § 522(b)(1)–(2). Maresca chose the federal list, which contains the homestead exemption described in § 522(d)(1).

2 This amount is adjusted triennially for inflation. See

(a). The parties agree that the number above was the applicable cap at the time the petition was filed. 5 § 522(d)(1) because her son used the Property as a “residence.” In reaching this

conclusion, the bankruptcy court rejected what it called the “majority ‘state law’

approach,” App’x 17. Under the state-law approach—which Donovan urges us to

adopt—courts interpret the word “residence” in § 522(d)(1) by looking to the

definition of “homestead” under the relevant state’s law, a definition which, in

turn, often equates “homestead” with “primary residence.” See, e.g., In re Stoner,

, 417–21 (Bankr. D.N.J. 2013). Instead, the bankruptcy court adopted

what it called the “minority ‘plain meaning’ approach,” App’x 17, under which

the term “residence” is interpreted, using traditional canons of construction, to

include primary and non-primary residences. See, e.g., In re Demeter,

,

286–92 (Bankr. E.D. Mich. 2012).

Donovan appealed to the district court (Underhill, C.J.), which affirmed the

bankruptcy court’s order. Like the bankruptcy court, the district court adopted the

plain-meaning approach. Because Maresca’s son uses the Property as a

residence—albeit a non-primary one—the district court concluded that Maresca’s

interest in the Property was exempt under § 522(d)(1) and Donovan’s lien

therefore avoidable under § 522(f)(1)(A). The district court entered judgment on

September 30, 2019, and Donovan timely appealed to this Court.

6 DISCUSSION

The sole issue in this appeal is whether the term “residence” in § 522(d)(1)

covers both primary and non-primary residences. 3 If the term covers only primary

residences, then Maresca’s interest in the Property is not exempt, and she cannot

avoid Donovan’s judicial lien under § 522(f)(1)(A). If the term also covers non-

primary residences, however, then the Property is exempt, as there is no

meaningful dispute that Maresca’s son is her dependent and that he uses the

Property as a non-primary residence.

In resolving the question before us and concluding that the term “residence”

in § 522(d)(1) covers both primary and non-primary residences, we are guided by

the Supreme Court’s counsel that generally: “Our inquiry ceases in a statutory

construction case if the statutory language is unambiguous and the statutory

scheme is coherent and consistent.” Sebelius v. Cloer,

(2013).4 Such

is the case with § 522(d)(1).

3Because this is a question of law, our review is de novo. See In re Hyman,

(2d Cir. 2007).

4 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted. 7 First and foremost, the ordinary meaning of the word “residence” does not

exclude non-primary residences. Unlike the concept of domicile, residence

requires only “bodily presence as an inhabitant in a given place,” and not a

permanent intention to remain. Residence, Black’s Law Dictionary (11th ed. 2019).

“A person thus may have more than one residence at a time . . . .”

Congress’s

use of the standalone term “residence”—as opposed to “primary residence” or

“principal residence”—thus suggests that the homestead exemption is not limited

to primary residences. 5

We believe, furthermore, that Congress’s choice of terminology was

deliberate. As Maresca notes, several provisions in the Bankruptcy Code use the

term “principal residence.” See, e.g.,

(13A), 1123(b)(5), 1322(b)(2).

The last of these examples, § 1322(b)(2), is particularly significant because

Congress enacted that section at the same time as § 522(d)(1). See An Act to

Establish a Uniform Law on the Subject of Bankruptcies,

522,

1322,

, 2587, 2648–49 (1978). And “[w]here Congress includes

particular language in one section of a statute but omits it in another, it is generally

5Congress’s use of the indefinite article in the phrase “uses as a residence,” § 522(d)(1) (emphasis added), is consistent with the idea that the debtor or her dependent can have more than one. 8 presumed that Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” Keene Corp. v. United States,

(1993).

These are persuasive reasons to interpret the statute according to its own

terms, rather than look to state law to imbue the text with meaning. But even if we

were otherwise inclined to adopt the state-law approach, we would find it difficult

to square that approach with the text of § 522(d)(1). As noted above, § 522(d)(1)

exempts a debtor’s interest “in real property . . . that the debtor or a dependent of the

debtor uses as a residence” (emphasis added). The state-law approach posits that

the term “residence” in § 522(d)(1) should be interpreted interchangeably with

“homestead” under, in this case, Connecticut law. But the relevant provision of

Connecticut law defines “homestead” as “owner-occupied real property . . . used as

a primary residence.”

-352a(e) (emphasis added). Under

the state-law approach, then, a Connecticut debtor could not claim an exemption

in property that the debtor’s dependent used as a primary residence, unless the

debtor were to also occupy the property. This interpretation thus reads the words

“or a dependent of the debtor” out of § 522(d)(1), a result contrary to “the cardinal

principle of interpretation that courts must give effect, if possible, to every clause

and word of a statute.” Loughrin v. United States,

, 358 (2014).

9 The text of the statute, then, militates quite clearly in favor of interpreting

the term “residence” in § 522(d)(1) to include both primary and non-primary

residences. We acknowledge, though, that at first blush, the legislative history

makes this somewhat of a closer question, as the state-law approach is not without

some support there. For example, the House report accompanying the legislation

refers to § 522(d)(1) as an exemption for a “homestead.” H.R. Rep. No. 95-595, at

361 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6317. The report also explains that

the statute’s language was drawn from the Uniform Exemptions Act, which was

promulgated by the Uniform Law Commission in 1976. Id. That model act

provides for a “homestead exemption,” which grants “[a]n individual . . . an

exemption as a homestead of his interest in property in this State used as a home

by him or his dependents.” Unif. Exemptions Act § 4(a) (Unif. L. Comm’n 1976);

see Stoner, 487 B.R. at 419–20; see also Owen,

(referring to

§ 522(d)(1) as the “homestead” exemption). Other courts have read this legislative

history as evidence that Congress’s purpose in enacting this provision was to

provide a debtor with nothing more than “the basic necessity of a home,” Stoner,

, a purpose that is not necessarily served by allowing debtors to

exempt non-primary residences.

10 The legislative history is not so clear on this point, however, as to overcome

the text of the statute. For one, this legislative history does not expressly endorse

the state-law approach. Although it evinces a genealogical link between the term

“residence” in the modern statute and the terms “home” and “homestead” in the

1976 Uniform Exemptions Act, it is not obvious that these terms should have

identical meanings. Indeed, Congress could have used the term “homestead” or,

as noted above, “principal residence” in § 522(d)(1), but it did not. Congress could

likewise have clarified that whatever term used in the federal statute should be

defined as a state-law “homestead,” but it did not.

Moreover, at least in this case, the statutory purpose revealed by this

legislative history supports, rather than undermines, Maresca’s position that the

Property should be exempt. By exempting Maresca’s interest in the Property,

§ 522(d)(1) provides her son with security in the home that he shares with his

father. Donovan characterizes the Property as a place Maresca’s son merely

“visits,” Appellant’s Br. at 16, but the record contradicts this description.

According to the parenting plan entered pursuant to Maresca and Crilly’s divorce

decree, the son spends several days per week at the Property with his father, and

11 he goes to school in the town where the Property is located. Indisputably, the

Property is one of the son’s residences, even if it is not his primary residence.

Lastly, Donovan raises a practical concern with the plain-meaning

approach. He argues that construing § 522(d)(1) to cover non-primary residences

would allow debtors to claim homestead exemptions in everything from “vacation

time shares” to “Winnebagos.” Appellant’s Br. at 7. But we think that the definition

of “residence” is not so capacious as to be unlimited. We further note that the

statute’s requirement that the debtor “use[]” the property as a residence also

narrows its scope. In any event, this case does not present the scenario that

Donovan warns about, as there is no dispute that the Property is a house and that

Maresca’s dependent son uses it as a non-primary residence.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

12