In re Abisso

490 B.R. 464, 69 Collier Bankr. Cas. 2d 571, 2013 WL 1680063, 2013 Bankr. LEXIS 1565
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedApril 17, 2013
DocketNo. 12-17888-WCH
StatusPublished

This text of 490 B.R. 464 (In re Abisso) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Abisso, 490 B.R. 464, 69 Collier Bankr. Cas. 2d 571, 2013 WL 1680063, 2013 Bankr. LEXIS 1565 (Mass. 2013).

Opinion

MEMORANDUM OF DECISION

WILLIAM C. HILLMAN, Bankruptcy Judge.

I. INTRODUCTION

The matter before me is the “Trustee’s Objection to Confirmation of Debtor’s Chapter 13 Plan” (the “Objection”) filed by Carolyn Bankowski, the Chapter 13 trustee (the “Trustee”), and the “Debtor’s Response to Trustee’s Objection to Confirmation” (the “Response”) filed by Kathleen Abisso (the “Debtor”). The Trustee asserts that the Debtor is not entitled to claim a marital adjustment with respect to her non-debtor spouse’s income for purposes of determining whether the applicable commitment period is three or five years. For the reasons set forth below, I will overrule the Objection.

II. BACKGROUND

The Debtor filed a Chapter 13 petition on September 28, 2012, along with the Chapter 13 Statement of Current Monthly and Disposable Income (the “B22C Form”) and the Chapter 13 plan (the “Plan”). Although the Debtor is married, her husband did not join her in filing the bankruptcy petition. On the B22C Form, the Debtor marked the box indicating “the applicable commitment period is 3 years.” On Line 2, the Debtor listed $1,668.78 in Column A labeled “Debtor’s Income,” and $7,685.56 in Column B labeled “Spouse’s Income.” The Debtor listed no additional income on Lines 2-9. On Line 11, the Debtor listed her total gross income as $9,354.34, the sum of Columns A and B above. On Lines 13 and 19, the Debtor listed $3,574.06 as a marital adjustment, the sum of her spouse’s domestic support obligation, payroll taxes, and other payroll deductions. On Line 14, the Debtor listed her current monthly income as $5,780.28 — her gross income minus the marital adjustment. On Line 15, the Debtor listed her. annualized current monthly income for 11 U.S.C. § 1325(b)(4) as $69,363.36. The Debtor then checked the box on Line 17 indicating that the amount on Line 15 was less than the applicable median family income, which prompted her to check the box for “the applicable commitment period is 3 years” at the top of the B22C Form.1

The Debtor’s Chapter 13 Plan proposes payments of $120.00 per month for 48 months, asserting that “[a] 48 month plan is necessary in order to [sic] the plan to be feasible.”2 The Plan lists total unsecured claims in the amount of $53,354.42. The plan reflects that unsecured creditors are to receive a dividend of not less than a third of one percent of their claims, proposing a total payment of $184.00 to unsecured creditors.

On November 5, 2012, the Trustee filed the Objection and on November 16, 2012, the Debtor filed the Response. On Febru[466]*466ary 14, 2013, I conducted a hearing on the Objection. Both parties participated in oral argument, and at the conclusion of the hearing, I took the matter under advisement.

III. POSITIONS OF THE PARTIES

A. The Trustee

The Trustee objects to the Debtor taking a marital adjustment on Line 13 of the B22C Form, rendering her income below median, and allowing her to have a shorter plan term.3 The Trustee argues that the Debtor’s annualized current monthly income would render her above median but for the marital adjustment.4 She contends that in determining the applicable commitment period for a Chapter 13 plan, the Bankruptcy Code requires the calculation include the current monthly income of the Debtor and the Debtor’s spouse combined, and as such, the Debtor cannot use the marital adjustment to reduce the commitment period from 60 to 36 months.5

During the hearing, the Trustee further explained that:

[Under 11 U.S.C. § 1325(b)(4)(A)(ii),] when you’re determining the applicable commitment period in connection with the debtor’s Chapter 13 case you’re supposed to utilize the current monthly income of the debtor and the debtor’s spouse combined and if that’s more than the median family income of a household of a similar size, then the debtor is an above-median income debtor. The debt- or is asserting a marital deduction and they are seeking to deduct out certain obligations of the non-debtor spouse from the current monthly income.
Now we have no objection that those are separate debts that the spouse is able to deduct, but we disagree that the debtor is able to deduct those to make the debtor a below-median income debtor.6

The Trustee asserted that the Bankruptcy Code “clearly acknowledges that the [Debtor’s] spouse can be a nondebtor, but it’s saying that you’re supposed to include the current monthly income of that person.” 7 With respect to permitting a marital adjustment in the calculation of the applicable commitment period, the Trustee argued:

I do agree that the [Official 22C Form is] wrong in allowing it. I think it’s only allowable — there’s two spots they allow a marital deduction. One is in Line 13 and one is in Line 19. I do believe it’s proper to take the marital deduction under Line 19 when you’re determining projected disposable income on line 59, but not for determining whether or not a debtor is above or below median based upon a reading of the language of the statute.8

The Trustee conceded that while there have been many decisions on this issue, there is only one case supporting her position.9 She purports, however, that the minority view finds support in legislative history and the Advisory Committee Notes.10 Reading the statute together with “Lanning and Ransom,” the Trustee [467]*467maintains that “the minority view has correctly decided the issue.”11

B. The Debtor

The Debtor focuses her argument on the meaning of the phrase “current monthly income of the debtor and the debtor’s spouse combined,” found in 11 U.S.C. § 1325(b)(4)(A), which is used to determine the duration of a debtor’s Chapter 13 plan.12 She contends that under a plain meaning interpretation of the statute, “current monthly income” modifies both “the debtor” and “the debtor’s spouse.”13 The Debtor argues that where 11 U.S.C. § 101(10A) only defines “current monthly income” with respect to the debtor, it follows that a non-filing spouse has no current monthly income.14 The Debtor explains how she calculated the applicable commitment period to be three years by adding her current monthly income ($5,780.28.28) plus her spouse’s current monthly income ($0), which when annualized is less than the median income for a household of her size.15

The Debtor contends that if the phrase “current monthly income” did not modify the “debtor’s spouse,” absurd results would ensue.16

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Cite This Page — Counsel Stack

Bluebook (online)
490 B.R. 464, 69 Collier Bankr. Cas. 2d 571, 2013 WL 1680063, 2013 Bankr. LEXIS 1565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-abisso-mab-2013.