Esparsen v. Esparsen (In re Esparsen)

545 B.R. 330, 2016 Bankr. LEXIS 354
CourtUnited States Bankruptcy Court, D. New Mexico
DecidedFebruary 4, 2016
DocketNo. 15-11414 ta7; Adv. No. 15-1065 t
StatusPublished
Cited by5 cases

This text of 545 B.R. 330 (Esparsen v. Esparsen (In re Esparsen)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Esparsen v. Esparsen (In re Esparsen), 545 B.R. 330, 2016 Bankr. LEXIS 354 (N.M. 2016).

Opinion

MEMORANDUM OPINION

Hon. David T. Thuma, United States Bankruptcy Judge

In this adversary proceeding the Debt- or-Plaintiff askes the Court to determine that certain amounts owed to Defendants are dischargeable because they were not incurred in the course of a divorce or separation as required by § 523(a)(15).1 Before the Court is Defendants’ motion to dismiss the adversary proceeding for failure to state a claim upon which relief can be granted. The matter has been fully briefed. For the reasons set forth below, the motion will be granted.

I. Standard for Evaluating a Motion to Dismiss

Rule2 12(b)(6) (made applicable by Bankruptcy Rule 7012) allows the Court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. [332]*3321994). The sufficiency of a complaint is a question of law, and when considering and addressing a Rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. Genesee County Employees’ Retirement System v. Thornburg Mortgage Securities Trust 2006-3, 825 F.Supp.2d 1082, 1120-21 (D.N.M.2011), citing Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). Legal conclusions cast in the form of factual allegations need not be taken as true for Rule 12(b)(6) purposes. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (“the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”).

“[A] complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted). See also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (claim has facial plausibility when the allegations allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged).

When entertaining a motion to dismiss, a court is permitted “to take judicial notice of its own files and records, as well as facts which are a matter of public record.” Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir.2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir.2001). A court may also consider any documents to which the complaint refers, provided the documents are central to the plaintiffs claim and the parties do not dispute their authenticity. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941-42 (10th Cir.2002).

II. Plaintiffs Allegations

Plaintiff Mark Esparsen and Defendant Kathleen Esparsen were married in 1995. They have a 15 year-old son. The parties filed for divorce in 2014. On April 14, 2015, the state court (Hon. Matthew Wilson) entered a Final Decree of Dissolution of Marriage. The Final Decree did not award alimony to either party, but did allocate the couple’s personal property and awarded a net “equalization payment” from Mr. Esparsen to Ms. Esparsen of $15,941.28 (the “Equalization Payment”). Defendant Dean Border was Ms. Espar-sen’s divorce lawyer.

Mr. Esparsen filed the above-captioned Chapter 7 case on May 29, 2015, while the divorce proceeding was pending.3

After entry of the Final Decree, Mr. Border filed in the divorce proceeding a Notice of Attorney Charging Lien and Retainer Lien. He also filed a motion to withdraw as Ms. Esparsen’s counsel.

After the charging lien was filed, Judge Wilson held a hearing on a motion Ms. Esparsen filed for an award of attorney fees. At the time Mr. Esparsen had not paid the Equalization Payment to Ms. Es-parsen. Judge Wilson denied the motion on July 22, 2015, stating that “the Court will not award attorney fees.” He did rule, however:

Counsel for Respondent has filed a valid Notice of Attorney Charging Lien and Retainer Lien and all equalization/judgment payments due from Petitioner to [333]*333Respondent shall be paid from the Petitioner directly to Border Law Office.

Mr. Esparsen alleges that in connection with this ruling, Judge Wilson “commented that [Ms. Esparsen] probably would not be able to satisfy this Charging Lien.” The Court takes that to mean that absent the direct payment scheme, Mr. Border likely would not collect his fees.4

On August 21, 2015, Mr. Esparsen filed this adversary proceeding to determine whether the Equalization Payment is dis-chargeable. The Court entered its standard discharge order on September 24, 2015.

III. Discussion

A. Section 52S(a)(15).

The question here is whether Mr. Es-parsen’s obligation to pay the Equalization Payment to Mr. Border is 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.

Section 523(a)(15).

When the Final Decree was entered, there is no question that the Equalization Payment was owed by Mr. Esparsen to Ms. Esparsen “in connection with a ... divorce decree — ” and thus was nondis-chargeable under § 523(a)(15). Mr. Es-parsen argues Mr. Border’s charging lien and Judge Wilson’s July 22, 2015 order changed the character of the debt because it was no longer payable to Mr. Esparsen’s “spouse, former spouse, or child,”

Whether a particular debt is dis-chargeable is a question of federal law. In re Sampson, 997 F.2d 717, 721 (10th Cir.1993). See also In re Rodriguez, 465 B.R. 882, 889 (Bankr.D.N.M.2012) (whether a debt is in the nature of support is a question of federal bankruptcy law, not state law); In re Taylor, 455 B.R. 799, 804 (Bankr.D.N.M.2011), affirmed, 478 B.R. 419 (10th Cir. BAP 2012); In re Loper, 329 B.R. 704, 708 (10th Cir. BAP 2005).

Exceptions to discharge under § 523(a)(15) are construed more liberally than other provisions of § 523. In re Taylor, 478 B.R. 419, 427 (10th Cir. BAP 2012),

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545 B.R. 330, 2016 Bankr. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esparsen-v-esparsen-in-re-esparsen-nmb-2016.