Lewis v. Lewis

646 A.2d 273, 35 Conn. App. 622, 1994 Conn. App. LEXIS 321
CourtConnecticut Appellate Court
DecidedAugust 23, 1994
Docket12095
StatusPublished
Cited by20 cases

This text of 646 A.2d 273 (Lewis v. Lewis) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. Lewis, 646 A.2d 273, 35 Conn. App. 622, 1994 Conn. App. LEXIS 321 (Colo. Ct. App. 1994).

Opinion

Lavery, J.

In this appeal, we are called on to consider the dischargeability in bankruptcy of debts owed to a former spouse by the bankrupt defendant. The parties were divorced on August 30, 1990, ending a two year marriage. In the dissolution decree, the trial court stated that both parties were employed and self-supporting and, therefore, ordered no alimony to either party. The court did, however, order the defendant to pay the plaintiff $50,000. The defendant did not pay the full amount. The trial court found that the defendant owed $38,316 on January 10,1992, when the plaintiff filed the latest in a long series of contempt motions and capiases.

The defendant filed for chapter 7 bankruptcy protection on February 18,1992. He scheduled the debt owed to his wife as an unsecured debt, without describing its nature.1 On March 4, 1992, the debtor defendant commenced an adversary proceeding in the bankruptcy court alleging that his debt to his wife was discharge-able.2 Both parties assert that the bankruptcy court, [624]*624Krechevsky, J., referred this matter to the Superior Court during a pretrial conference. After the pleadings were filed, the defendant did not pursue the matter. The adversary proceeding was dismissed for failure to prosecute on April 28, 1994.

On March 27, 1992, the trustee in bankruptcy appointed to the defendant’s case reported that the defendant lacked assets to pay any of the unsecured creditors. The defendant received a chapter 7 discharge from bankruptcy on May 26, 1992.

The plaintiff moved to have the defendant found in contempt for failing to comply with the dissolution decree on August 13,1992. In his defense, the defendant asserted that the debt owed to the plaintiff was dis-chargeable and had been discharged on May 26,1992. The trial court heard argument on whether the debt was dischargeable under 11 U.S.C. § 523 (a) (5).3 The trial court ruled on January 6,1993, that the debt was nondischargeable and ordered further proceedings to facilitate collection. The defendant appeals the ruling.

Due to the close interaction between the state proceedings and bankruptcy action in this case, we must first consider whether this case is properly before us. We conclude that it is for the following reasons. First, [625]*625our actions and the actions of the trial court are not barred by an automatic stay. See 11 U.S.C. § 362 (a).4 The automatic stay imposed at the commencement of a bankruptcy proceeding terminates upon the debtor’s discharge. 11 U.S.C. § 362 (c) (2) (C).5 Thus, the stay in this case ended on May 26, 1992.

Second, this action is not moot. Although the adversary proceeding in the bankruptcy court was dismissed in April, 1994, the ruling that is the subject of this appeal arose in the course of a state proceeding. The issue of the dischargeability of the debt arose in the plaintiff’s contempt proceeding when the defendant attempted to avoid having to pay it by claiming that it had been discharged. In essence, the claim of discharge was a defense. Thus, the issue was properly before the trial court and remained unresolved after the parallel action in federal court had ended.

Third, the issue of dischargeability of the debt owed to the plaintiff was properly before the trial court. “State courts of general jurisdiction have the power to decide cases involving federal . . . rights where . . . neither the Constitution nor statute withdraws [626]*626such jurisdiction. Boston Stock Exchange v. State Tax Commission, 429 U.S. 318, 319 n.3, 97 S. Ct. 599, 50 L. Ed. 2d 514 (1977).” In re Aurre, 60 Bankr. 621, 624 (S.D.N.Y. 1986). In this instance, jurisdiction has not been withdrawn from state courts. 28 U.S.C. § 1334 (b).6 “Section 523 (c) of the [Bankruptcy] Code provides for a limited exception to this concurrent jurisdiction for questions of dischargeability concerning § 523 (a) (2) (fraud or a false financial statement), § 523 (a) (4) (fraud by a fiduciary, embezzlement or larceny) and § 523 (a) (6) (willful and malicious injury). Therefore, all dischargeability issues other than those concerning § 523 (a) (2), (4) and (6) may be determined by a nonbankruptcy court.” Matter of Carter, 38 Bankr. 636, 638 n.5 (D. Conn. 1984); see also Matter of Brady, Texas, Municipal Gas Corp., 936 F.2d 212, 218 (5th Cir.), cert. denied sub nom. Sanders v. Brady, 502 U.S. 1013, 112 S. Ct. 657, 116 L. Ed. 2d 748 (1991); In re Rosenbaum, 150 Bankr. 994, 996 and n.2 (E.D. Tenn. 1993); In re Balvich, 135 Bankr. 327, 330 (N.D. Ind. 1991).

Fourth, the debtor’s discharge, which occurred prior to this action in state court, did not resolve the dischargeability of this debt. “Unlike dischargeability questions based on § 523 (a) (2), (4) & (6), where debts are automatically discharged unless the creditor asks the bankruptcy court to make a determination of nondischargeability, a debtor’s obligation to a former spouse or child is either discharged or not, pursuant to § 523 (a) (5), based upon the nature of that obligation regardless of whether or not the bankruptcy court has been asked to pass upon the issue. See 11 U.S.C. [627]*627§ 523 (c). The question of dischargeability is, thus, preserved and, should there be any dispute, may be determined by the state courts in connection with proceedings to enforce the obligation.” (Emphasis added.) In re Balvich, supra, 135 Bankr. 330; see also In re Aurre, supra, 60 Bankr. 624 (no action by bankruptcy court required to trigger § 523 [a] [5] exception).7 Thus, even though the debtor was discharged without a prior determination of the dischargeability of the debt to his former spouse, the question was preserved for adjudication, and was properly before the trial court in the context of proceedings to collect the debt.

The issue on appeal is whether the trial court correctly characterized the $50,000 debt that the defendant owed to the plaintiff as nondischargeable. Section 523 (a) (5) of the Bankruptcy Code denies debtors discharges from debts owed to former spouses for alimony, maintenance or support.8 In contrast, property settlements to former spouses are dischargeable. Matter of Ammirato, 74 Bankr. 605, 607 (D. Conn. 1987). The determination of whether a debt is dischargeable is made pursuant to federal bankruptcy law. Forsdick v. Turgeon, 812 F.2d 801, 802 (2d Cir. 1987); In re Calhoun, 715 F.2d 1103, 1107 (6th Cir. 1983); In re Silberfein, 138 Bankr. 778, 780 (S.D.N.Y. 1992).

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Bluebook (online)
646 A.2d 273, 35 Conn. App. 622, 1994 Conn. App. LEXIS 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-lewis-connappct-1994.