Maes v. Maes (In re Maes)

342 B.R. 259, 2006 Bankr. LEXIS 766
CourtUnited States Bankruptcy Court, W.D. Kentucky
DecidedMay 4, 2006
DocketBankruptcy No. 05-51160; Adversary No. 05-5060
StatusPublished

This text of 342 B.R. 259 (Maes v. Maes (In re Maes)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maes v. Maes (In re Maes), 342 B.R. 259, 2006 Bankr. LEXIS 766 (Ky. 2006).

Opinion

MEMORANDUM OPINION

THOMAS H. FULTON, Bankruptcy Judge.

THIS CORE PROCEEDING comes before the Court on Plaintiff Marianne F. Maes’s (“Plaintiff’) Complaint under Section 523(a)(5) and Section 523(a)(15), and Defendant/Debtor David Raoul Maes’s (“Defendant”) Answer and Counterclaim. The Plaintiff is seeking to have certain debts totaling approximately $29,000.00 deemed nondischargeable. Pursuant to the parties Separation Agreement the Defendant assumed the liabilities for a Discover Credit Card, originally in the joint names of Plaintiff and Defendant, and a debt owed to Bank One for a fifth wheel vehicle.1

An evidentiary hearing was held on March 21, 2006. The Plaintiff elected not to appear at the trial and instead preserved her testimony through an evidentia-ry deposition which was submitted to the Court. The Plaintiff was represented by counsel at the hearing, who advocated on the Plaintiffs behalf. The Defendant appeared with counsel and testified before this Court. Based upon the testimony of the parties, the statements of counsel and the entire record in this case, this Court finds that the debts in question are DIS-CHARGEABLE.

FINDINGS OF FACT

The Defendant and his wife filed for Chapter 7 bankruptcy protection on July 13, 2005. The Plaintiff filed the present nondischargeability action on October 31, 2005.

The parties marriage ended in divorce after 13 years in November 2003. At the [263]*263time of their divorce, the parties were residing in Colorado. Pursuant to the parties’ Separation Agreement, the Defendant quit claimed the marital home, which they had purchased within a year of the divorce for $280,000.00, to the Plaintiff, who then assumed the mortgage obligations on the home. The Defendant further agreed to pay the Plaintiff monthly maintenance of $200 for six years. Plaintiff was also to receive 26.4% of the Defendant’s military retirement pay. The Defendant and Plaintiff divided their personal property, and the Defendant received a fifth wheeler, the debt on which is now at issue. The parties similarly split their marital debts, and the Defendant took responsibility for the Discover Credit Card in both parties names, which at the time had a balance of approximately $11,250.00.

David Raoul Maes

The Defendant is 45 years old and served on active duty in the military for 24 years before retiring. He was declared 20% disabled by the military due to knee problems but is otherwise in good health. Following his retirement from the military, he found work with the Department of Homeland Security where he was employed as a screening manager, responsible for federalizing the Denver International Airport. Following his divorce from the Plaintiff in November 2003, the Defendant married Sharon Maes. The couple moved to Kentucky in August of 2004 in order to be closer to Sharon’s children, Casey, age nine, and Tyler, age six. Sharon Maes currently has joint custody of her children, who spend approximately 51% of the time with the Defendant and Sharon Maes.

The Defendant is currently employed for the Kentucky State Police as a police dispatcher and primarily works third shift, from 8 p.m. to 6 a.m. Additionally, the Defendant is on 24 hour call on an as needed basis. He earns a gross salary of $1915.00 per month and nets approximately $680.00 every two weeks. He is not be eligible for a raise for at least several more years. It does not appear likely that the Defendant would be able to attain employment as a police trooper due to various physical limitations he has stemming from his military career. In addition to his salary, the Defendant receives military retirement of $965.00 per month and military disability of $218.00 per month. Sharon Maes works for the Department of Homeland Security at the Paducah Airport as a supervisor with a gross salary of $3,880.00 per month. The Defendant and his wife have a combined monthly net income of $5,466.00.2

The Defendant submitted detailed estimates of his family monthly expenses, which total $5,290 per month.. These monthly expenses include: $1,005.00 for housing; grocery and food expense of $774.41; monthly transportation expenses of $358.00; $246.19 per month for maintenance to the Plaintiff and child support for Sharon Maes’ children; $590.00 per month for car payments; and $450.00 per month for divorce and bankruptcy attorney fees, among other expenses. The maintenance payments to the Plaintiff will end in 2009, and the attorney payments will likely be paid in full in the next few years.

The Defendant and his wife own several assets, including the home they purchased upon moving to Kentucky valued at approximately $139,000.00, on which there are two mortgages. They also own two cars with a combined value of $26,850.00, [264]*264one of which they own free and clear and they other on which they owe approximately $23,700.00. Based on the submitted income and expenses, the Defendant has approximately $176.00 per month in disposable income. The Defendant and his wife discharged approximately $100,000.00 in their bankruptcy.

Marianne Maes

The Plaintiff is 45 years old. She had been in the military but was declared 100 percent permanently disabled in 1996. She currently suffers from back problems, migraines, RSD and is in remission from leukemia. The Plaintiff is currently under a physician’s care and taking medications for all of these conditions. She is unable to work. She receives military disability of $2,383.00 per month, $492.00 per month through the Defendant’s military pension, $200 maintenance from the Defendant, and Social Security of $846.00, totaling $3,894.00 income.

In the parties’ divorce, the Plaintiff was awarded the marital home, and the Defendant quit claimed his interest to the Plaintiff in 2003. The Plaintiff subsequently quit claimed the house to her friend as collateral to him for financial assistance he provided to her.3 The Plaintiff provided to the Court two promissory notes stating that her friend loaned her $34,140.00. The Plaintiff currently resides with her friend. The home quit claimed to her friend is currently rented, and the friend receives the rental income. Plaintiff, however, continues to pay the mortgage of $1,700.00 per month on her former home.

Including her mortgage payment, the Plaintiff has monthly expenses of $3,536.57, including food expense of $225.00, utility expenses of $400, a vehicle lease of $413.00, medication expense of $250.00, car insurance of $45.00, among other expenses. The Plaintiff additionally submitted bank statements in which she labeled the various deposits and withdrawals. Although certain withdrawals are labeled for “food” or “yard,” other items are labeled “confidential.” For example, in her bank statement for August 1 through August 31, 2005, the Plaintiff has eight withdrawals labeled “confidential” totaling $724.12. The Plaintiff declined to explain why she was continuing to make the mortgage payment on the house, nor why she was not receiving the rental income on the house. Similarly, she would not divulge the nature of the “confidential” payments. The Plaintiff was asked repeatedly who her friend is and what the nature of their relationship is, but she once again refused to answer the questions. The Court warned the Plaintiffs counsel that his client’s failure to be candid with the Court could harm her case because it would not permit the Court to make a thorough evaluation.

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Bluebook (online)
342 B.R. 259, 2006 Bankr. LEXIS 766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maes-v-maes-in-re-maes-kywb-2006.