In re Chaudry

569 B.R. 372, 2017 Bankr. LEXIS 1910
CourtUnited States Bankruptcy Court, D. New Jersey
DecidedJuly 10, 2017
DocketCase No. 16-13206 (CMG)
StatusPublished
Cited by2 cases

This text of 569 B.R. 372 (In re Chaudry) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Chaudry, 569 B.R. 372, 2017 Bankr. LEXIS 1910 (N.J. 2017).

Opinion

OPINION

CHRISTINE M. GRAVELLE, U.S.B.J.

Introduction

In this case the Court is tasked with determining if the marital tort claim of Asma Warsi-Chaudry (“Wife"), which she alleges in her divorce proceeding against debtor, Ghazali Chaudry (“Husband”), is more properly characterized as a debt for willful and malicious injury under 11 U.S.C. § 523(a)(6), or a debt incurred in the course of a divorce or separation under 11 U.S.C. § 523(a)(15). A marital tort claim is referred to in New Jersey as a Tevis claim, following a state supreme court opinion of the same name. See Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979). This Court will refer to Wife’s marital tort using that term of art.

The Court finds that based upon the facts presented in this case, Wife’s Tevis claim is a debt arising under 11 U.S.C. § 523(a)(6). Because the time to object to the dischargeability of the Tevis claim has expired, Husband’s liability on the claim, if any, has been discharged.

Facts

Husband and Wife were married in 2001. Wife filed for divorce, ultimately filing an amended complaint for divorce on June 3, 2014. The amended complaint included a Tevis claim, alleging that Husband committed assault upon Wife during the course of the marriage, causing damages. The Superior Court of the State of New Jersey, Chancery Division, Family Part (the “Family Court”), which presides over the divorce case issued a sua sponte order on July 25, 2014 severing the Tevis portion of the complaint and forwarding that claim to the Law Division for a determination, On January 5, 2015, the Law Division dismissed the severance of the Tevis claim and transferred it back to the Family Court.

In February 2016, Husband filed the present bankruptcy listing Wife as a creditor. The Court sent Official Form 309A-Notice of Chapter 7 Bankruptcy Case to all listed creditors, including Wife. The Notice specified that the deadline to object to the discharge of a debt under 11 U.S.C. § 523(a)(2), (4), or (6) was May 20, 2016. On May 20, 2016 Husband and the Chapter 7 Trustee filed a stipulation which extended the deadline for the Trustee to object to discharge. Husband and the Trustee further extended the deadline by consent for an additional month. Wife received • no such extension. Neither the [374]*374Trustee, nor the Wife, nor any other creditor filed an adversary complaint challenging the dischargeability of any debts, and Husband received his discharge on September 20, 2016.

On February 28, 2017 Wife filed a motion styled as an “Ex-Parte Motion for a Determination” that Wife’s Tevis claim survived Husband’s discharge. Husband’s attorney filed opposition on procedural grounds, including the fact that Husband was deployed, and the matter was adjourned by the Court. The parties appeared on April 11, 2017, at which point the Court requested more briefing. Additional oral argument was held on May 16, 2017.1

Law

Section 523(a)(6) of the Code excepts from discharge “any debt ... for willful and malicious injury by the debtor to another entity or to the property of another entity.” See 11 U.S.C. § 528(a)(6). Liabilities arising from assault or assault and battery are generally considered as founded upon a willful and malicious injury, and are therefore within the exception. See In re Granoff, 250 Fed.Appx. 494, 495-96 (3d Cir. 2007) (citing 4 Collier on Bankruptcy ¶ 523.12[4] (15th ed. Rev. 2007)).

A debtor may be discharged from a § (a)(6) debt unless the creditor requests, upon notice and a hearing, a determination from the court that the debt may be excepted from discharge. 11 U.S.C. § 523(c)(1). Objections to the discharge-ability of a debt are properly brought by way of an adversary proceeding. F.R.B.P. 4007(a); F.R.B.P. 7001(4). In a Chapter 7 case, a complaint to determine the dis-chargeability of a § 523(a)(6) debt must be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a). F.R.B.P. 4007(c). The court may extend the time to file a complaint only if the motion for the extension is filed before the time has expired. Id.

Section 523(a)(15) excepts from discharge debts, “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.” Debts under § 523(a)(15) are not subject to any temporal requirement for the filing of an adversary complaint objecting to their discharge. See F.R.B.P. 4007(c). If the debt is characterized as one arising under § 523(a)(15), then the claim is not dischargeable regardless of whether an adversary proceeding is filed within a certain timeframe.

Here, an initial analysis of the facts shows that Wife’s Tevis claim in her amended divorce complaint specifically references reckless, wanton, and malicious assault by Husband against her. It would thus appear that the compensatory and punitive damages sought in that count would fall under the purview of § 523(a)(6). As no adversary complaint was filed in a timely manner, the debt would then be deemed to be discharged.

But, the New Jersey Supreme Court has instructed that marital tort claims be presented in connection with the divorce action in order to resolve all of the parties’ legal disputes in one proceeding. See Tevis v. Tevis, 79 N.J. 422, 434, 400 A.2d 1189 (1979). The Tevis court found that the potential for money damages arising from a marital tort are relevant in a matrimonial proceeding, and therefore must be [375]*375joined under the “single controversy doctrine.” Tevis v. Tevis, 79 N.J. at 434 Id. “When issues of child welfare, child support and child parenting are intertwined with dissolution of the marriage and the necessary resolution of the marital tort, the Family Part may conclude that the marital tort should be resolved in conjunction with the divorce action as part of the overall dispute between the parties.” Brennan v. Orban, 145 N.J. 282, 301-302, 678 A.2d 667 (1996). Any damages predicated upon the tort liability of one spouse to another must be considered in the court’s decision respecting equitable distribution, alimony, and the ability to pay alimony, to prevent a double recovery on the claim. See Giovine v. Giovine, 284 N.J.Super. 3, 29, 663 A.2d 109 (App.

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Bluebook (online)
569 B.R. 372, 2017 Bankr. LEXIS 1910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-chaudry-njb-2017.