In re Ketelsen

282 B.R. 208, 46 Collier Bankr. Cas. 2d 1042, 2001 Bankr. LEXIS 745, 2001 WL 1903447
CourtUnited States Bankruptcy Court, E.D. Tennessee
DecidedJanuary 16, 2001
DocketNo. 99-20545
StatusPublished
Cited by1 cases

This text of 282 B.R. 208 (In re Ketelsen) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Ketelsen, 282 B.R. 208, 46 Collier Bankr. Cas. 2d 1042, 2001 Bankr. LEXIS 745, 2001 WL 1903447 (Tenn. 2001).

Opinion

MEMORANDUM

MARCIA PHILLIPS PARSONS, Bankruptcy Judge.

This chapter 7 case is before the court on the debtor’s motion for contempt against her former husband and his attorney based on their alleged violation of the discharge injunction. As discussed below, the motion will be denied, the court having concluded that the respondents’ defensive offset attempts in the state court action instituted by the debtor did not violate the discharge injunction. This is a core proceeding. See 28 U.S.C. § 157(b)(2)(0).

I.

The debtor, Judith Ketelsen, commenced this chapter 7 case by the filing of a voluntary petition on March 1, 1999. The debtor’s former husband, David Ketel-sen, was included in the schedule of unsecured creditors for “possible obligations to former spouse in divorce proceeding” in an “unknown” amount. Mr. Ketelsen was also listed as a codebtor on debts to First USA Bank, Discover, Chase and GMAC Mortgage. On June 15, 1999, the debtor received a discharge and her no-asset case was closed on April 14, 2000.

On October 10, 2000, the debtor filed the pending motion for order of contempt which is presently before this court. In the motion, the debtor states that she filed a state court action in Erie County, New York to collect a child support arrearage owed to her by Mr. Ketelsen, who was represented in that matter by attorney Keith Schulefand. The debtor further states that in response to her child support arrearage claim, Mr. Ketelsen and his attorney alleged that she was liable to Mr. Ketelsen for payments he made on her behalf to GMAC and Consumer Credit Counseling. The debtor asserts that because any such marital obligation was discharged pursuant to 11 U.S.C. § 523(c)(1), the respondents’ attempt to offset the discharged marital obligation against Mr. Ketelsen’s child support obligation violated the discharge injunction of 11 U.S.C. § 524(a). Accordingly, the debtor requests a determination that Messrs. Ket-[210]*210elsen and Schulefand are in contempt of court and an award of damages including attorney’s fees incurred by the debtor in both this contempt action and the state court proceeding.

Messrs. Ketelsen and Schulefand have filed a response to the debtor’s motion along with a request for summary judgment supported by Mr. Ketelsen’s affidavit and an affirmation from Mr. Schulefand referencing attached copies of the Ketel-sens’ petitions filed in the state court action along with a final order entered by that state court. The debtor has also filed an affidavit with various exhibits in opposition to the summary judgment request. Based upon these affidavits and documents, it appears that the Ketelsens obtained a divorce in the state of New York on May 29, 1997, with each being awarded custody of one child. Pursuant to the terms of Separation Agreement incorporated in the divorce decree, Mr. Ketelsen was ordered to pay child support of $150 per week, since his income was greater than that of the debtor’s. With respect to the parties’ marital debts, the Separation Agreement noted that the parties had worked out a five-year payment schedule with Consumer Credit Counseling Service of Buffalo, Inc., which required monthly payments of $630. The parties agreed that Mr. Ketelsen would contribute $380 a month toward this payment and the debtor $250 a month until the debts were paid in full, with each party to indemnify and hold the other harmless.

In February 1998, the debtor moved from New York to Tennessee, leaving both children with Mr. Ketelsen, and thereafter she filed for bankruptcy relief here in Tennessee on March 1, 1999. While the debt- or listed Mr. Ketelsen as a creditor in her bankruptcy schedules, she failed to schedule as an asset any child support arrearage that she was owed by Mr. Ketelsen. On June 15, 1999, the same day as the discharge order was entered in her bankruptcy case, the debtor filed a petition against Mr. Ketelsen in the family court of Erie County, New York, alleging that Mr. Ket-elsen had failed to make the court ordered $150 per week child support payments for the period of May 1997 through February 1998. In response, Mr. Ketelsen counterclaimed for child support after February 1998 when both children were in his custody. Furthermore, during negotiations between the parties, Mr. Ketelsen asserted that during the period of May 1997 through February 1998 when he allegedly failed to make child support payments, he “made a number of payments to Consumer Credit Counseling on Debtor’s behalf and covered payments for her car loan and car insurance” and that “[b]y agreement between myself and the Debtor these payments were made in lieu of child support due to her.” Mr. Ketelsen and his attorney argued that he was entitled to a credit or offset of the payments made by him against any amount of child support which he might owe the debtor.

In response to this offset argument, the debtor’s bankruptcy attorney advised Mr. Ketelsen’s attorney, Mr. Schulefand, by letter dated November 8, 1999, that Mr. Ketelsen’s offset request was a violation of the discharge injunction because any obligation by the debtor to Mr. Ketelsen arising out of their divorce was discharged under 11 U.S.C. § 523(a)(15) and (c)(1) by Mr. Ketelsen’s failure to request and obtain a determination of nondischargeability. Thereafter, on February 17, 2000, the parties entered into a consent decree acknowledging that no child support arrear-age was owed by either party and requiring the debtor to commence weekly child support payments of $88 to Mr. Ketelsen as the custodial parent for both children. Almost eight months later, on October 10, 2000, the debtor filed the motion for con[211]*211tempt against Messrs. Ketelsen and Schulefand which is presently before this court.

In their request for a summary disposition of the debtor’s contempt motion, the respondents deny that they violated the discharge injunction. They maintain that the debtor’s obligations to Mr. Ketelsen are nondischargeable under 11 U.S.C. § 523(a)(5) and that state courts have concurrent jurisdiction to determine § 523(a)(5) dischargeability. The respondents further contend that the bankruptcy issues raised herein were before the state court and that the consent order entered in the New York state court is res judicata as to all issues which were and could have been litigated. In support of this latter argument, the respondents note that the invoice from debtor’s New York counsel for services rendered on her behalf in the state court proceeding has the following entry for November 16, 1999: “Court appearance for pre-trial conference with Judge and to meet with opposing attorney regarding Bankruptcy issue, scheduling, our positions on back support and current support and other. Court directed us to file a position paper on Bankruptcy Issue. Rescheduled matter for further proceedings.”

In response to these arguments, the debtor contends that summary judgment is inappropriate because a genuine issue of material fact exists. Contrary to her former husband’s assertion, the debtor denies that there was any agreement between them that he make payments on her behalf in lieu of child support.

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Cite This Page — Counsel Stack

Bluebook (online)
282 B.R. 208, 46 Collier Bankr. Cas. 2d 1042, 2001 Bankr. LEXIS 745, 2001 WL 1903447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ketelsen-tneb-2001.