Helsel v. Marsh (In re Marsh)

257 B.R. 879, 45 Collier Bankr. Cas. 2d 691, 2000 Bankr. LEXIS 1650
CourtUnited States Bankruptcy Court, W.D. Tennessee
DecidedDecember 20, 2000
DocketBankruptcy No. 00-22441whb; Adversary No. 00-0281
StatusPublished

This text of 257 B.R. 879 (Helsel v. Marsh (In re Marsh)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Helsel v. Marsh (In re Marsh), 257 B.R. 879, 45 Collier Bankr. Cas. 2d 691, 2000 Bankr. LEXIS 1650 (Tenn. 2000).

Opinion

MEMORANDUM OPINION ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY

WILLIAM H. BROWN, Bankruptcy Judge.

The Plaintiff, Carol Gilley Helsel, formerly Carol Marsh, filed this adversary proceeding to determine the discharge-ability of certain “hold harmless” debt assumptions under the parties’ divorce decree and its incorporated marital dissolution agreement. Section 523(a)(15) is the applicable Bankruptcy Code provision, as prayed in the complaint. When the debtor/defendant filed his answer, he was represented by counsel, but his attorney subsequently withdrew. The debtor appeared pro se at the trial of this proceeding on November 14, 2000. At the conclusion of the trial, the Court took the issues under advisement, and this Opinion contains findings of fact and conclusions of law pursuant to Fed. R.Bankr.P. 7052. This is a core proceeding. 28 U.S.C. § 157(b)(2)(I).

ISSUE

The issue presented under § 523(a)(15) is whether the debts assumed by the debt- or in the parties’ marital dissolution agreement are dischargeable in this Chapter 7 case. That Code section provides:

(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—
(15) 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, a determination made in accordance with State or territorial law by a governmental unit unless—
(A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably [881]*881necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and, if the debt- or is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or
(B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor.

11 U.S.C. § 523(a)(15).

FACTS

The facts concerning the debts assumed were not disputed. The marital dissolution agreement provided in its paragraph 18 that the husband, now the debtor, assumed a Bank of Boston Mastercard account and a Value City account, and he agreed to hold the wife, now the plaintiff, harmless on those obligations. Moreover, he agreed not to incur additional debt on those and other jointly-held accounts after the date of the agreement. The plaintiffs proof included the balance now due on the Bank of Boston credit card, $1079.00, and the balance that the plaintiff paid on the Value City account, $1,438.43. When demand was made upon her, the plaintiff exhausted her savings to pay the Value City account in order to protect her credit and to reduce its 20% accruing interest, and she has agreed to pay the Bank of Boston account, now held by Wacova Bank, at $15.00 per month. The plaintiff negotiated an interest reduction in the latter account to 10% for one year, at which time the interest will increase. The plaintiff testified that she was told by the defendant at some point that the Bank of Boston account had been paid off, but instead he continued to charge to that account after the execution of their marital dissolution agreement. The complaint also referred to a Radio Shack account, but no proof was offered at trial about that account.

The complaint asks for a judgment of indemnity, money damages, attorney’s fees, costs, and a determination that the judgment is nondischargeable. The answer raises the affirmative defenses of § 523(a)(15) that (A) the defendant is financially unable to pay these debts or (B) that their discharge would have a benefit to the debtor which outweighs the detrimental consequences to the plaintiff. The proof on the defenses was sparse, but the debtor did testify concerning his income and some expenses. The debtor has not remarried, has moved to Bolivar, Tennessee, where he works as a mechanic, and he lives modestly. He has certain debts, including tax obligations, that will survive his bankruptcy discharge. The plaintiffs testimony included the fact that she supports two dependent children, not born of this marriage, that she works 10.5 horn* days to repay these debts, and that she remains under financial stress. No one asked the plaintiff how much income she has, how much income her new spouse has, what their actual expenses are, nor what other specific debts she owes. The plaintiff has incurred attorney’s fees for this dischargeability action at $150.00 an hour.

DISCUSSION

The highest authority in this Circuit for the burden of proof on § 523(a)(15) issues is the Bankruptcy Appellate Panel, which concluded that “[t]he objecting creditor bears the burden of proof to establish that the debt is of a type excepted from discharge under § 523(a)(15).” Hart v. Molino (In re Molino), 225 B.R. 904, 907 (6th Cir. BAP 1998). In the present case, there is no dispute that these debts were assumed by the debtor in the parties’ marital dissolution agreement, which was incorporated into the divorce decree; thus, the debt assumptions clearly were “incurred by the debtor in the course of a divorce ... or in connection with a separation agreement, [or] divorce decree,” and are excepted from discharge unless one of the applicable defenses is established. 11 U.S.C. § 523(a)(15). The plaintiff, there[882]*882fore, has carried her initial burden of proof. “Once the creditor has met this burden, the burden shifts to the debtor to prove either of the exceptions to nondis-chargeability contained in subsections (A) or (B).” In re Molino, 225 B.R. at 907 (citations omitted). This shifting burden is logical when subsections (A) and (B) are viewed as affirmative defenses to the proof of nondischargeability. See Hon. Bernice B. Donald & Hon. Jennie D. Latta, The Dischargeability of Property Settlement and Hold Harmless Agreements in Bankruptcy: An Overview of § 523(a) (15), 31 Fam.L.Q. 409, 421 (Fall 1997). “The debtor must make these showings by a preponderance of the evidence.” In re Molino, 225 B.R. at 907 (citation omitted).

The debtor/defendant failed in his burden of proving either affirmative defense (A) or (B). As to ability to pay, the debtor’s testimony established that he was on a tight budget, having incurred relocation expenses when he moved for a new job. He testified that he was making less now than in the time he was married to the plaintiff due to less overtime and less commission work than he expected. He is living modestly and he still has some other debt that will survive his Chapter 7 discharge. However, he expects to make approximately $30,000 this year, he has not remarried, and he has no dependents. Based upon his income, the debts at issue are relatively minor, totaling approximately $2,500.00, and they could be paid in installments over a reasonable period of time without depriving the debtor of necessary income.

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Bluebook (online)
257 B.R. 879, 45 Collier Bankr. Cas. 2d 691, 2000 Bankr. LEXIS 1650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/helsel-v-marsh-in-re-marsh-tnwb-2000.