Love v. Love

116 B.R. 267, 1990 U.S. Dist. LEXIS 8240, 1990 WL 92704
CourtDistrict Court, D. Kansas
DecidedJune 22, 1990
DocketNos. 89-4145-S, 89-4139-S. Adv. No. 87-0040
StatusPublished

This text of 116 B.R. 267 (Love v. Love) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Love v. Love, 116 B.R. 267, 1990 U.S. Dist. LEXIS 8240, 1990 WL 92704 (D. Kan. 1990).

Opinion

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on cross-appeals of Leonard Love, Sr. and Bessie Mae Love from a May 25, 1989, order of the bankruptcy court determining that $285.00 per month — one-half of the monthly sum awarded in a divorce proceeding by a state district court to Ms. Love as “maintenance” — was nondischargeable under 11 U.S.C. § 523(a)(5). In his appeal, Mr. Love contends that the entire amount of the retirement pay awarded to Ms. Love is properly characterized as a division of property, and thus, dischargeable under 11 U.S.C. § 523(a)(5). In the alternative, Mr. Love argues that the court should find that a reduced amount — i.e., only $230 — is non-dischargeable debt. In her appeal, Ms. Love contends that the entire amount of the state district court’s award to Ms. Love is in the nature of support or maintenance and should have been held nondischargeable.

This court finds that it has jurisdiction over this appeal under 28 U.S.C. § 158. Further, the standards of review which this court must employ on appeal are well-settled. The district court functions as an appellate court and is authorized to [268]*268affirm, reverse, or modify the bankruptcy court’s ruling or to remand the case for further proceedings. Fed.R.Bankr.P. 8013. The district court may examine the bankruptcy court’s conclusions of law de novo. In re Mullet, 817 F.2d 677, 679 (10th Cir.1987). The bankruptcy court’s findings of fact must be upheld unless they are clearly erroneous. Id. at 678. Specifically, the bankruptcy court’s findings concerning whether an obligation is in the nature of support or in the nature of a property settlement can be set aside only if they are clearly erroneous. In re Goin, 808 F.2d 1391, 1393 (10th Cir.1987).

Bankruptcy Court’s Findings

This court finds that the following findings of fact by the bankruptcy court, based on the parties’ stipulated facts, are not clearly erroneous and will be considered by this court as true:

1. Plaintiff [Leonard Love] and defendant [Bessie Mae Love] were married on March 17, 1963 in Tampa, Florida and were divorced in the District Court of Geary County, Kansas on February 24, 1986. The court granted the decree of divorce on the basis of incompatibility. The marriage lasted 22 years and 11 months.
2. Five children were born to the parties: Jacqueline Iva Edem, born March 22, 1965; Leonard Love, Jr., born April 21, 1967; David Denard Love, born March 21, 1968; Edward Love, born December 31, 1969; and Craig Cornelius Love, born February 24, 1973. Two of the children had reached the age of majority at the time of the divorce, two who (sic) have since reached the age of majority, and one who will reach the age of majority on February 24, 1991.
3. The trial court found that defendant [Bessie Mae Love] worked during the parties’ marriage to the extent that she could, given the conditions of being a military family and having minor children.
4. The defendant at the time of the divorce was working at Woolworths (sic) South Central Distribution Center. Plaintiff was a sergeant E-8 in the United States Army and was eligible to retire.
5. At the time of their divorce, Sergeant Love was 42 years of age and Mrs. Love was 41 years of age.
6. Sergeant Love was a high school graduate and Mrs. Love had one year of college. In addition, defendant had been trained as a physician’s assistant in Florida; such training in Florida, however, does not by itself permit her to work in the same manner in Kansas.
7. The Honorable William D. Clement, Administrative District Judge in the District Court of Geary County, Kansas, was the judge presiding over the divorce case between the plaintiff and defendant.
8. The following statements regarding the parties’ financial condition at the time of the divorce derive from the parties’ Rule 164 statements, which are attached and labelled Exhibit 2 and 3. Rule No. 164 of the Supreme Court of the State of Kansas requires the parties to submit statements regarding their assets, liabilities, and proposals regarding the divisions of these assets and their liabilities. Such statements reflect the following:
a. Plaintiff’s monthly income at the time of the divorce was $2,144.51 gross, $1,263.00 net. The amount was scheduled to be increased by $400.00 monthly, six weeks following the parties’ divorce, due to the surrender of government quarters. The parties agreed that the defendant was earning $936.00 monthly gross and approximately $760.00 net.
b. Sergeant Love projected his post-divorce expenses to be approximately $790.00 monthly and his wife’s expenses to be approximately $1,244.00 after her removal from government quarters. The defendant estimated her expenses after moving from government quarters to be $1,486.00.
c. The Court awarded most of the personal property to Mrs. Love. The value of the property awarded to her was estimated by plaintiff to be $11,685.00. Defendant did not estimate the value of the property. The property awarded to Ser[269]*269geant Love was not valued, apparently because it was subject to a security interest on the part of Household Finance at the time of the divorce,
d. The entire indebtedness of the parties was allocated to Sergeant Love. That indebtedness totaled approximately $11,236.58.
9. The Court awarded Mrs. Love $500.00 child support monthly.. At the time of the divorce, the parties had three minor children. One turned age 18 one month following the divorce decree and the Court indicated that no child support would be awarded for that child. Essentially, $250.00 was awarded per child per month.
10. The total of the defendant's income ($762) plus child support ($500) equalled $1,262.00 monthly; which amount approximately equalled Sgt. Love’s estimate of the defendant’s expenses and which was approximately $200.00 less than the defendant’s estimate. The divorce decree made no provision for Mrs. Love’s support with the exception of the one-half share of Mr. Love’s retirement Pay-
11. The Court in its decree of divorce awarded to defendant, as “maintenance”, 50% of what the retirement benefits would be if, in fact, plaintiff had retired at the date of divorce. The first “maintenance”, (sic) payment was to be due on March 1, 1988 and on the first day of each month thereafter for a total of 120 monthly payments. The maintenance was not to terminate upon remarriage and was subject to modification if the facts and circumstances warranted it. Maintenance is for 10 years.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
116 B.R. 267, 1990 U.S. Dist. LEXIS 8240, 1990 WL 92704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/love-v-love-ksd-1990.