In re Kiley
Opinion of the Court
The matter before the Court is the Objection to Debtor's Amended Claim of Exemption (hereinafter the "Trustee's Objection") filed by the Chapter 7 Trustee assigned to the above-captioned bankruptcy case, Mary M. Hunt.
Some years before filing for bankruptcy, Deborah Kiley (the "Debtor") sued for divorce. A day before her bankruptcy filing, the Debtor and her ex-husband stipulated in the divorce proceeding that the Debtor would receive 100% of the value of his retirement account. Shortly after the bankruptcy filing, the Utah divorce court memorialized the award and entered a Qualified Domestic Relations Order naming the Debtor as an "Alternate Payee" of the retirement account.
The Court held an evidentiary hearing on the Trustee's Objection on January 23, 2017 and permitted the parties to submit supplemental briefs no later than February 6, 2017. Thereafter, the Court took the matter under advisement.
On June 7, 2017, the Court entered an Order Certifying State Law Questions to Utah State Supreme Court.
The Court held a status conference on October 2, 2018. Mary Margaret Hunt appeared in her capacity as Chapter 7 Trustee and Michael F. Thomson appeared as counsel for the Trustee. Olivia Rossi appeared on behalf of the Debtor. At the conclusion of the status conference, the Court took the matter under advisement.
The Court now issues this Memorandum Decision which constitutes the Court's findings of fact and conclusions of law under Federal Rule of Civil Procedure 52, made applicable to this proceeding by Fed. R. Bankr. P. 9014 and 7052.
I. JURISDICTION AND VENUE
The Court has jurisdiction over this matter pursuant to
II. FACTS
A. The Pre-Petition Divorce Proceedings
On February 7, 2012, the Debtor, Deborah Michelle Marrott (n/k/a Kiley), filed a petition for divorce against Jarod R. Marrott in the Third Judicial Court for Salt Lake County, State of Utah (the "Divorce Court").
Pursuant to previous orders in the divorce proceeding, Mr. Marrott was required to pay the Debtor support payments of $7,199 per month ($4,273 in child support and $2,926 in alimony).
On August 20, 2015, the settlement conference was held, and a divorce court commissioner approved a stipulation between the Debtor and Mr. Marrott (the "Mediated Stipulation").
B. Post-Petition Divorce Events
On August 21, 2015, the day following the divorce settlement conference, the Debtor filed this Chapter 7 petition for relief.
On September 23, 2015, approximately one month after the petition date, the Divorce Court entered Findings of Fact and Conclusions of Law ("Findings & Conclusions")
401 K, Pension, Retirement Plans. The Respondent [Jarod Marrott] has acquired certain retirement accounts. He represents that the accounts total of $225,142. The Petitioner [Debtor] is awarded all of the value in any and all of the Respondent's retirement accounts .... The Respondent shall pay for any costs associated with the preparation of a QDRO (no more than $500) or transfer of the retirement funds into Petitioner's possession. If the plan administrator(s) will not release the total amount of the retirement account due to the loans, the Respondent shall pay to the Petitioner $200 per month until the loan amounts are paid in full.23
On October 7, 2015, the Trustee conducted the first meeting of creditors under
On December 4, 2015, the Divorce Court entered a Qualified Domestic Relations Order *600(the "QDRO").
11. The Plan shall pay, in lump sum, the amount designated in paragraph 7 of this QDRO, 100% of the Participant's account, less the value of any outstanding loans, as of the date of segregation. The Participant shall assume any and all outstanding loans on the account. The Plan shall pay this amount as soon as administratively feasible.
12. This QDRO does not require the Alternate Payee's consent to the distribution, and the Plan may distribute the amount described in paragraph 11 of this Part IV without obtaining any further consent from the Alternate Payee.27
A week later, the Retirement Plan administrator certified that the QDRO complied with ERISA and did not violate the Retirement Plan's anti-alienation provisions.
The Debtor's original bankruptcy schedules did not list the pending divorce proceedings.
The Debtor's amended Schedule B also lists an interest in "Child Support arrears as of date of filing the petition: $60,478.07" and "Alimony arrears as of the date of filing the petition: $53,299.71."
*601III. ANALYSIS
A. Summary of the Issues
In the broadest terms, the issue is what, if any, portion of the Divorce Award is property of the bankruptcy estate that must be turned over to the Trustee for distribution to creditors. The answer to this question involves the following discrete issues;
1. On the petition date, or within 180 days thereafter, did the Debtor have an interest in the Retirement Plan that constituted property of the estate under § 541 ?
2. If the Debtor had an interest in the Retirement Plan on the petition date, did its anti-alienation provisions exclude all or a part of that interest from property of the estate under § 541(c)(2) ?
3. If the Debtor had an interest in the Retirement Plan on the petition date, is that interest exempt pursuant to the resulting, post-petition QDRO under U.C.A. § 78B-5-505(1)(a)(xv) ?
4. Is the Debtor's interest in the Divorce Award for pre-petition alimony and child support exempt under U.C.A. § 78B-5-505(1)(a)(vi) and (vii) ?
B. Property of the Estate
Property of the estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case."
Determining what is property of the bankruptcy estate in this case is complicated due to the following timeline: (1) more than three years before her bankruptcy filing, the Debtor sued for divorce; (2) the day before her bankruptcy filing, the parties agreed on the record, after a mediated divorce settlement conference, that the Debtor was entitled to 100% of the value of her ex-husband's Retirement Plan in the estimated amount of $225,000, with $113,777.78 of this amount constituting past-due alimony and child support; (4) a month after the bankruptcy filing, the Divorce Court entered the Divorce Decree memorializing the Divorce Award; (5) three months after the bankruptcy filing, the Divorce Court entered a QDRO naming the Debtor as payee; and (6) to date, the funds remain in the Retirement Plan.
For the following reasons, the Court finds under Utah law, ERISA,
C. Is the Debtor's Interest in the Retirement Plan as a Survivor Beneficiary Property of the Estate?
1. On the Petition Date, the Debtor held a Beneficial Interest in the Retirement Plan as a Survivor Beneficiary.
The Trustee has not challenged the Debtor's assertion that the Retirement Plan is ERISA qualified. The Court has reviewed the evidence, including the QDRO Determination Checklist wherein the Retirement Plan administrator certified the Debtor's QDRO as a qualified domestic relations order as defined by
2. The Debtor's Beneficial Interest in the Retirement Plan as a Survivor Beneficiary is Excluded from the Estate Pursuant to § 541(c)(2).
The Debtor argues that the Retirement Plan is not property of the estate because of its transfer restrictions. Section 541(c)(2) provides that a "restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title." In this case, the "applicable nonbankruptcy law" is ERISA,
*603As a result, the Court finds that as of the petition date, the Debtor's interest in the Retirement Plan as a survivor beneficiary was subject to ERISA's anti-alienation provisions that exclude it from property of the estate under § 541(c)(2).
D. On the Petition Date, Did the Debtor Also Hold an Equitable Interest in the Retirement Plan as Marital Property?
However, this is not the end of the analysis, because the Debtor also held an interest in the Retirement Plan as marital property. Property interests in bankruptcy "are created and defined by state law."
Turning to the facts, the Retirement Plan Enrollment Form and the Divorce Court's Findings & Conclusions establish that Mr. Marrott enrolled in the Retirement Plan while the parties were married.
*604E. Did the Divorce Award Include a Property Settlement?
The next issue is whether the Divorce Award was for support or as a property settlement. If a property settlement, the Divorce Award would be property of the estate under § 541(a)(5)(B) because it was acquired within 180 days of the petition date.
Furthermore, the Divorce Decree provided that Mr. Marrott could pay the costs for "the preparation of a QDRO (no more than $500) or transfer of the retirement funds into Petitioner's possession."
There is nothing in the divorce documents or the QDRO to suggest that any portion of the Retirement Plan was to be rolled over into an ERISA plan in the Debtor's name. Further, there is no evidence that the Debtor intended to roll the funds in the Retirement Plan into an ERISA plan in her name.
As a result, the Court finds that other than the Support Payments of $113,777.78, the balance of the Divorce Award was a property settlement (the "Property Settlement"). Further, because the Debtor acquired, or became entitled to acquire, the Property Settlement within 180 days of her bankruptcy filing, it became property of the bankruptcy estate under § 541(a)(5)(B).
F. Is the Debtor's Interest in the Retirement Plan Through the Post-Petition QDRO Exempt Under U.C.A. § 78B-5-505(1)(a)(xv) ?
Having found that the Property Settlement is property of the estate, the Court next considers the Debtor's claimed exemption therein under U.C.A. § 78B-5-505(1)(a)(xv).
Section 522(b)(3)(A) allows exemptions under state law "applicable on the date of the filing of the petition."
G. Can the Debtor Exempt that Portion of the Divorce Award Consisting of Past-Due Alimony and Child Support?
The Debtor's amended Schedule B states that on the petition date, the Debtor was owed $60,478.07 for child support arrears and $53,299.71 for alimony arrears for a total domestic support claim of $113,777.78.
The Trustee objected to these exemptions, saying she had not verified the amounts allocated to alimony and child support and because the exemption for alimony is limited "to the extent reasonably necessary for the support of the individual and the individual's dependents."
However, with the stipulation as to the pre-petition child support, the Court finds that the Debtor has an allowed exemption of $60,478.07 in the Retirement Plan proceeds as child support under U.C.A. 78B-5-505(1)(a)(vi).
H. Effect of the Automatic Stay on the Post-Petition Divorce Court Orders
Normally, the bankruptcy filing would stay a divorce court's post-petition division of marital property, and the Chapter 7 trustee would make a business decision whether to intervene in the divorce proceedings to assert the estate's interest in marital property.
Further, the Trustee has not challenged the validity of the Divorce Court's post-petition orders under § 362(b)(2)(A)(iv).
If a party later seeks to lift or annul the automatic stay with respect to the Divorce Court's post-petition orders, this Court will consider such arguments at that time. The Court notes that the delay in bringing such a motion (the Divorce Decree has been entered for over 3 years); the potential for serious confusion if the Divorce Decree is voided; and the interests of judicial economy would weigh heavily in favor of annulling the stay so that the Divorce Decree remained valid and binding.
IV. CONCLUSION
For the reasons set forth above, the Court finds that the Debtor held the following interests in the Retirement Plan as of the petition date: (1) the status of a primary survivor beneficiary under the Retirement Plan; (2) a one-half, equitable interest in the Retirement Plan as marital property, but subject to a final allocation by the Divorce Court; and (3) an interest in the Retirement Plan for past-due alimony and child support in the amount of $113,777.78.
As to the Debtor's interest in the Retirement Plan as primary survivor beneficiary, the Court finds that interest is excluded from property of the estate under § 541(c)(2) and Patterson v. Shumate .
As to the Debtor's interest in the Retirement Plan as marital property, the Divorce Court made a final allocation of marital property by awarding the Debtor the value of the Retirement Plan, with $113,777.78 of that amount being for past-due alimony and child support. While that was done post-petition, the Trustee has not objected to the terms of the Divorce Decree, and the Court finds that it thus fixed the Debtor's interest in marital property. Alternatively, the Debtor became entitled to the Property Settlement (the difference between the value of the Retirement Plan less the Support Payments) within 180 days of the petition date. Thus, the Property Settlement amount also became property of the estate under § 541(a)(5)(B).
As to the QDRO, the Court sustains the Trustee's objection to the Debtor's claimed exemption under U.C.A. § 78B-5-505(1)(a)(xv) because on the petition date, the Debtor was not an "alternate payee" of a QDRO.
As to the Debtor's interest in the Support Payments, the Court allows the Debtor's claimed exemption for child support in the amount of $60,478.07. As to the exemption of $53,299.71 for alimony, the Debtor must establish what portion of this amount is reasonably necessary for her support and support of any dependents.
Accordingly, the Court directs that of the funds presently held in the Retirement Plan, the sum of $60,478.07 shall be released and delivered to the Debtor in full satisfaction of her child support exemption.
*608The sum of $53,299.71, representing the Debtor's alimony award, shall likewise be released and delivered to the Trustee to hold in trust pending further order of the Court. The balance of funds in the Retirement Plan shall be released and delivered to the Trustee for distribution to creditors. The Trustee may seek such additional orders from the Court as is necessary to accomplish the release of the funds. The Court will enter a separate order consistent with this Memorandum Decision.
Docket No. 21.
An "alternate payee" is a term of art defined under the Employee Retirement Income Security Act or "ERISA" at
All subsequent references to the United States Code are to Title 11 unless otherwise specified.
Docket No. 47. U.C.A. § 78B-5-505(1)(a)(xv) provides: "An individual is entitled to exemption of ... the interest of or any money or other assets payable to an alternate payee under a qualified domestic relations order as those terms are defined in Section 414(p), Internal Revenue Code."
Docket No. 62.
Docket No. 66.
Docket No. 69.
Any of the findings of fact herein are also deemed to be conclusions of law, and any conclusions of law herein are also deemed to be findings of fact, and they shall be equally binding as both.
The Trustee and the Debtor submitted a Pretrial Order that contained uncontroverted facts as stipulated by Counsel for the parties. The Court entered the Pretrial Order on January 19, 2017 (Docket No. 57), and to the extent they are not expressly stated, the Court incorporates those uncontroverted facts herein.
Docket No. 57, para. 4(a).
Debtor's Exh. 2, p. 8, lines 2, 11.
Trustee's Exh. 2, pg. 3, line 11 ("In lieu of the agreements made herein, the Petitioner waives any and all support arrearages up and through August 2015.").
Debtor's Exh. 2, pp. 15-16.
Docket No. 57, para. 4(d).
Docket No. 57, at para. 4(d); Debtor's Exh. 2, p. 17.
Docket No. 1.
Docket No. 57, paras. 4(k), (l).
Debtor's Exh. 1. The Trustee and the Debtor stipulated on the record at the January 23, 2017 hearing that Debtor was the principal beneficiary of the former husband's retirement account up to and including the Petition Date and that Debtor's former husband was not deceased. January 23, 2017 Hearing Recording, Docket No. 59, 9:09:31 to 9:09:57 a.m.
Docket No. 57, para. 4(e).
Trustee's Exh. 1, para. 23; Trustee's Exh. 2, para. 23.
Trustee's Exh. 6.
Trustee's Exh. 3.
Trustee's Exh. 4;
Docket No. 2; Trustee's Exh. 5. The Debtor's Original Schedules B and C list an interest in "Retirement: 401K" in the amount of $1,129.00. It is unclear if this disclosure related to the ex-husband's Retirement Plan.
Docket No. 47.
Docket No. 60, para. 3. The minute entries from the mediated settlement conference indicate that a significant portion of the award in the Retirement Plan related to past due family Support Payments. The issue was discussed at the Bankruptcy Court's January 23, 2017 hearing, and the parties stipulated on the record that of the $225,142 listed in the Divorce Decree, $113,777.78 was for delinquent alimony and child support.
Docket No. 51.
§ 541(a)(1).
Butner v. United States ,
United States v. Whiting Pools, Inc. ,
Redmond v. Lentz & Clark, P.A. (In re Wagers) ,
As of March 21, 2016, the funds were held by the plan administrator in a separate account in the Debtor's name as the Alternate Payee. Trustee's Exh. 18. See also
Trustee's Exh. 4.
January 23, 2017 Hearing Recording, Docket No. 59, 9:09:31 to 9:09:57 a.m.
Patterson v. Shumate ,
Patterson v. Shumate,
Butner v. United States ,
West v. Christensen ,
West ,
Burt v. Burt ,
Woodward v. Woodward ,
The Retirement Plan Enrollment Form is signed June 28, 2005 by Mr. Marrott and the State Court's Supplemental Findings of Fact indicate that the parties "are the natural parents of two (2) minor children born as issue of their marriage" in 1999 and 2001. Trustee's Exh. 1, ¶ 1.
While Utah does not have a case directly on point, other jurisdictions examining the issue of a spouse's interest in marital property upon filing for divorce support this Court's conclusion. See e.g. , Gertz v. Warner (In re Warner) ,
Peters v. Wise (In re Wise) ,
The Court notes that the prepetition oral stipulation at the settlement conference was only advisory and not binding on the Divorce Court. See Colman v. Colman ,
Docket No. 60.
Trustee's Exh. 1, para. 23.
Trustee's Exh. 3 (emphasis added). The Court notes that the QDRO does not state the amount of $225,142, as is designated in the Divorce Decree. Rather, the QDRO lists the Debtor's portion as "100% of the Participant's account, less the value of any outstanding loans, as of the date of segregation." Trustee's Exh. 18 suggests that the amount in the Retirement Plan at the time of the QDRO was $194,164.62. It may require a subsequent evidentiary hearing to determine the precise amount in the Retirement Plan and the amount that should be considered property of the estate.
The Court notes that the Trustee's Reply to the Debtor's Response to Trustee's Objection to Claimed Exemption (Docket No. 24) indicates that the Trustee "reserves all rights" with respect to whether the former husband's retirement plan is one that qualifies under I.R.C. § 414(p). Docket No. 24, Trustee's Reply. The Trustee's Reply indicates that the "Trustee has never been provided documentation as to the Debtor's former spouse's retirement plan and the Debtors does not discuss this in her papers." The Court is unclear what the Trustee's "reservation of rights" on this point is meant to accomplish. The Trustee objected to the Debtor's exemption under U.C.A. § 78B-5-505(1)(a)(xv) and now has the burden to establish that the exemption is not properly claimed. For this reason, the Court declines to accept the Trustee's reservation of rights on whether the Retirement Plan is a plan as defined under I.R.C. § 414(p), and instead will consider the Trustee's primary argument - whether the exemption applies to assets in the hands of the payee or the payor.
U.C.A. § 78B-5-505(1)(a)(xv).
In re Parks ,
U.C.A. § 78B-5-505(1)(a)(xv).
Trustee's Exh. 3.
Docket No. 47.
Docket No. 51.
Docket No. 60 at ¶ 3.
See e.g., In re Zachmann , 2013 Bankr. LEXIS 1176 (Bankr. N.D. Ill. 2013) (Chapter 7 trustee intervened in pending divorce proceeding and participated in thirteen-day trial to determine estate's interest in marital property).
This section provides that the filing of a bankruptcy petition does not operate as a stay as to the continuation of a civil proceeding "for the dissolution of a marriage, except to the extent such seeks to determine the division of property that is property of estate." See also Ellis v. Consol. Diesel Elec. Corp. ,
October 2, 2018 Hearing Recording, Docket No. 72, at 11:09:39 a.m. to 11:10:15 a.m.
See In re Eastlick ,
Patterson v. Shumate ,
See U.C.A. § 78B-5-505(1)(a)(vii).
Reference
- Full Case Name
- IN RE: Deborah Michelle KILEY
- Status
- Published