French v. Blankenship (In re Blankenship)

133 B.R. 398, 1991 Bankr. LEXIS 2085
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedJune 24, 1991
DocketBankruptcy No. 89-0298; Related Case: 89-01837
StatusPublished
Cited by1 cases

This text of 133 B.R. 398 (French v. Blankenship (In re Blankenship)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
French v. Blankenship (In re Blankenship), 133 B.R. 398, 1991 Bankr. LEXIS 2085 (Ohio 1991).

Opinion

MEMORANDUM OPINION AND ORDER

RICHARD L. SPEER, Bankruptcy Judge.

This cause comes before the Court upon Plaintiff’s Complaint for Turnover of Assets and for Denial of Discharge. A Trial was held at which time the parties had the opportunity to present the evidence and arguments they wished the Court to consider in reaching its decision. The Court has reviewed the testimony, the documents admitted at Trial, the arguments of counsel, as well as the entire record in this case. Based upon that review, and for the following reasons, the Court finds that the Debt- or should turn over the assets in question and that the Debtor's discharge should be denied.

[400]*400FACTS

On June 29, 1989, William Earl Blankenship (hereinafter “Blankenship”), Defendant/Debtor, filed for protection under Chapter 7 of the Bankruptcy Code. Soon after the petition was filed, the following events were unearthed which resulted in the filing of the Complaint for Turnover of Assets and Denial of Discharge by Plaintiff/Trustee, Bruce C. French. The Trustee employed Mari Taoka (hereinafter “Tao-ka”) to represent him in this matter.

In the Complaint against the Debtor, Maxine Hancock (hereinafter “Hancock”), Lloyd Smith, and Mary LaGore, the Trustee listed several items which were believed to be property of the estate, and as such, should have been turned over to the estate. Those items included (1) three parcels of real estate identified as 28 North Main Street, Dunkirk, Ohio; 130 West Walnut Street, Dunkirk, Ohio; and Inlot 28, Packer’s Eastern Addition, Dunkirk, Ohio; (2) money in the amount of Nine Thousand Three Hundred Twenty-two Dollars and Ninety-five Cents ($9,322.95) from Mr. Smith and Ms. LaGore; (3) money in the amount of Four Thousand Dollars ($4,000.00) from Hancock; (4) stock certificates; (5) life insurance policy; (6) rental receipts from 283 North Main Street, Dunkirk, Ohio; and (7) money transferred to the Debtor’s son prior to filing the petition. After initial discovery, the Trustee dismissed the action against Mr. Smith and Ms. LaGore because the Trustee determined that they did not have any assets of the estate in their possession. That dismissal also involved the property located at 28 North Main Street, Dunkirk, Ohio.

LAW

The Trustee brought this action for turnover of assets and for denial of Discharge. Section 542 of the Bankruptcy Code provides that:

an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property of the value of such property, unless such property is of inconsequential value or benefit to the estate.

11 U.S.C. § 542 (1989).

At a pre-trial conference, a dispute arose as to the Debtor’s marital status. The Debtor denied the Trustee’s allegations that he was married to Hancock. Therefore, a threshold issue which this Court must address is whether Blankenship and Hancock are, or ever were, married. Despite Blankenship’s protests to the contrary, this Court believes that Blankenship and Hancock are married.

Because the power to regulate domestic relations belongs to the state, the Court must look to state law to determine the marital status of Blankenship and Hancock. Butner v. United States, 440 U.S. 48, 55-57, 99 S.Ct. 914, 918-19, 59 L.Ed.2d 136 (1979).

In Ohio, persons wishing to marry must apply for a license and then, once the application is approved, have the marriage solemnized. See, O.R.C. § 3101.01, et seq. (Baldwin 1988). Generally, there is a five (5) day waiting period between application and issuance of the marriage license. This can be waived by the Probate Judge. O.R.C. § 3101.05 (Baldwin 1988). Ohio does not authorize the performance of proxy marriages due to the statutory requirements of personal presence of the parties at the ceremony, although it will recognize proxy marriages when performed in a state where such marriages are valid. Hardin v. Davis, 30 Ohio Op. 524, 16 Ohio Supp. 19 (1945).

When the validity of a marriage is questioned, factors other than statutory compliance may be considered. One such factor is cohabitation. In Lester v. Lester, the court held that “cohabitation means the act of living together” and that “cohabitation can be based entirely on acts of living together without sexual relations.” Lester v. Lester, 1981 WL 3186 page 1 (Franklin County Court of Appeals, May 14, 1981). A review of Hancock’s interrogatories filed with the Court reflects that [401]*401she resided at 130 South Walnut Street, Dunkirk, Ohio, and that she admitted that she cohabitated with Blankenship and shared expenses with Blankenship. However, she denied being married to him when such a question was posed in the interrogatories. Blankenship’s pre-trial memorandum filed with the Court reflects that he resided with Hancock at 130 South Walnut Street, Dunkirk, Ohio. Based upon all the evidence, the Court believes that Blankenship and Hancock live together and are married.

Further evidence upon which the Court relies in making this finding include the fact that Blankenship named Hancock as his primary beneficiary on his life insurance policy with Western-Southern Life. The policy date was March 1, 1985, and Hancock was listed as Blankenship’s wife. On, or about, February 13, 1987, Blankenship filed with Western-Southern a notice of change of beneficiary to include his daughter as a secondary beneficiary. He retained Hancock as his primary beneficiary without changing her relationship as his wife.

The Court also takes note of the fact that Blankenship and Hancock had a joint checking account. One exhibit to Hancock’s pre-trial statement filed with the Court is a copy of a check reflecting both Blankenship and Hancock as named drawers on the account.

Additional evidence is the deed dated September 23, 1988, conveying real estate known as Inlot 28, Packer’s Eastern Addition in Dunkirk to Blankenship and Hancock as husband and wife. At the trial, Blankenship testified that this transfer was a mistake on the part of the grantor. Blankenship also testified that he attempted to rectify the situation by transferring his portion of the parcel to Hancock on April 13, 1989. The Court places little credence in this story as Blankenship signed the deed without reference to the fact that he was not Hancock’s husband. Additionally, his transfer to Hancock occurred approximately seven (7) months after the original deed was executed and two months before his Bankruptcy petition was filed.

At trial, the Debtor testified that he wanted to protect Hancock from her children who were threatening to place her in a mental institution and that he thought that if he married Hancock, he would prevent such actions by her children. Blankenship testified that on or about January 14,1985, he, Hancock, and Kathryn Robinson, a friend, went to Marion, Ohio, so that Blankenship and Hancock could be married. The Defendant/Debtor admitted that both he and Ms.

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Bluebook (online)
133 B.R. 398, 1991 Bankr. LEXIS 2085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/french-v-blankenship-in-re-blankenship-ohnb-1991.