Karpinski v. Karpinski (In re Karpinski)

144 B.R. 356, 1992 Bankr. LEXIS 1338
CourtDistrict Court, E.D. Kentucky
DecidedAugust 21, 1992
DocketBankruptcy No. 91-09113-R; Adv. No. 91-0926-R
StatusPublished
Cited by2 cases

This text of 144 B.R. 356 (Karpinski v. Karpinski (In re Karpinski)) is published on Counsel Stack Legal Research, covering District Court, E.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Karpinski v. Karpinski (In re Karpinski), 144 B.R. 356, 1992 Bankr. LEXIS 1338 (E.D. Ky. 1992).

Opinion

SUPPLEMENTAL OPINION

STEVEN W. RHODES, Bankruptcy Judge.

On June 9, 1992, this matter was tried before the court on Mrs. Karpinski’s complaint to hold certain obligations nondis-chargeable under 11 U.S.C. § 523(a)(5). At the conclusion of the trial, the Court determined that the obligations were nondis-chargeable. This opinion supplements the decision given in open court at that time.

I.

In 1964, the parties to this adversary proceeding were married. In August, 1989, Mr. Karpinski filed for divorce, and a judgment of divorce was entered on April 19, 1990. At the time of the divorce, the marital home had been refinanced for $55,-000. The judgment of divorce provided that the proceeds of the mortgage would be distributed as follows: Twenty-five thousand dollars would be paid to Mr. Kar-pinski, to be applied to and used for the payment of various debts 1, a portion of the proceeds would be used to pay off other debts2; and any remaining proceeds would be given to Mrs. Karpinski, free and clear of any interest of the debtor.3 The marital home was awarded to Mrs. Karpin-ski.

The judgment also provided that Mr. Karpinski would pay 45% of the total monthly mortgage payments until the loan was paid in full or the property was sold. Upon the sale of the property, Mr. Karpin-ski agreed to pay $25,000 to Mrs. Karpin-ski, less any sums paid by him in reduction of the principal balance of the mortgage.

The divorce decree was carried out according to its terms, except that Mr. Kar-pinski did not use his share of the proceeds to pay off any debts. Instead, he used the money to buy a truck and a house.

On July 31, 1990, Mr. Karpinski filed a chapter 7 petition in bankruptcy. On November 1, 1991, Mrs. Karpinski filed this adversary proceeding asserting that the debtor’s obligations to her under the judgment of divorce are nondischargeable under § 523(a)(5).

At trial, Mrs. Karpinski testified that she is 49 years old, and currently attending school to become a medical administrative assistant. Her expected salary range is from $6 to $8 per hour. She and the debtor were married for 25 years, of which she worked full time for 10 years. After their son was born, she either did not work, or [358]*358worked part-time. For 19 years, she never made more than $7,000 or $8,000 in one year. At the time of the divorce, she was laid off. She is presently unemployed, and receives governmental assistance of $140 every two weeks, and food stamps. She testified that she is unable to make the mortgage payment on her home without the debtor’s assistance. Mrs. Karpinski also testified that she intended the debtor’s obligation to be in the nature of support, and that the debtor also had this intention. Her belief is based on the fact that she cannot make any of the payments herself, and the debtor knew this at the time of the divorce.

Dawnn Gruenburg, Mrs. Karpinski’s divorce attorney, testified that at the time of the divorce, Mrs. Karpinski was unable to support herself. She testified that in her opinion, Mrs. Karpinski was a candidate for alimony, support or maintenance due to the length of the marriage, the disparity of income, and Mrs. Karpinski’s employment history. She also testified that the divorce settlement provided for Mrs. Karpinski’s support and maintenance. She stated that everyone knew that Mrs. Karpinski could not support herself. The divorce settlement did not specifically provide for alimony because the debtor could not stand the word, “alimony”. Nevertheless, the debtor assumed payments which Mrs. Karpinski could not afford to make, and the debtor received the same tax advantages that he would have received by paying alimony.

The debtor testified that he never intended to pay support or alimony to his ex-wife. He viewed the agreement to pay part of the mortgage payment as a property settlement. At the time of the divorce, he needed money. He viewed the refinancing of the marital home, and his receipt of $25,000 from the refinancing, as a loan, which he was repaying by assuming 45% of the mortgage payment. He also testified that if he failed to pay his share of the mortgage payment, his ex-wife probably could not make the full payment by herself.

Sheldon Greenblatt, the debtor’s divorce attorney, testified that at the time of the divorce, the debtor was unwilling to pay any alimony. The debtor did not want to commit to a continuing support obligation.

II

Section 523(a)(5) of Title 11 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—
(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that—
(A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or
(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support.

The plaintiff bears the burden of proving the facts necessary to support a judgment of nondischargeability under § 523(a), by a preponderance of the evidence. Grogan v. Garner, — U.S.-, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).

There are two decisions from the United States Court of Appeals for the Sixth Circuit which construe this provision of the Bankruptcy Code, In re Calhoun, 715 F.2d 1103 (6th Cir.1983); and In re Singer, 787 F.2d 1033 (6th Cir.1986).

In Calhoun, the debtor agreed to assume various loan obligations, and to hold his wife harmless for the payment of those debts. The court set forth a three part test to determine whether a given obligation under a divorce judgment should [359]*359be held nondischargeable under § 523(a)(5). First, the bankruptcy court must “ascertain whether the state court or the parties to the divorce intended to create an obligation to provide support.” 715 F.2d at 1109. Second, the court must inquire whether the obligation “has the effect of providing the support necessary to ensure that the daily needs of the former spouse and any children of the marriage are satisfied.” Id. Third, the court must “determine that the amount of support represented by the assumption is not so excessive that it is manifestly unreasonable under traditional concepts of support.” Id. at 1110. All three elements must be satisfied for the court to hold that an obligation is nondischargeable under § 523(a)(5).

III.

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Bluebook (online)
144 B.R. 356, 1992 Bankr. LEXIS 1338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/karpinski-v-karpinski-in-re-karpinski-kyed-1992.