Suhar v. Bruno (In re Neal)

478 B.R. 261
CourtBankruptcy Appellate Panel of the Sixth Circuit
DecidedSeptember 28, 2012
DocketBAP No. 11-8081
StatusPublished
Cited by5 cases

This text of 478 B.R. 261 (Suhar v. Bruno (In re Neal)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Suhar v. Bruno (In re Neal), 478 B.R. 261 (bap6 2012).

Opinion

OPINION

C. KATHRYN PRESTON, Bankruptcy Judge.

At issue in this appeal is whether the debtor received reasonably equivalent value when she transferred property to her husband in a pre-petition separation agreement which was incorporated into a marriage dissolution decree. The chapter 7 trustee alleged that she did not and that the transfer was avoidable under 11 U.S.C. § 548(a)(1)(B) and Ohio Revised Code § 1336.05. The bankruptcy court agreed with the trustee, and entered judgment in favor of the chapter 7 trustee and against the debtor’s ex-husband in the amount of $47,635.27.

I. ISSUES ON APPEAL

The issues presented by this appeal are (1) whether the bankruptcy court erred in determining the debtor did not receive reasonably equivalent value as contemplated under 11 U.S.C. § 548(a)(1)(B), (2) whether the bankruptcy court’s judgment against defendant in the amount of $47,635.27 exceeded the amount recoverable under 11 U.S.C. § 550, and (3) whether the bankruptcy court erred in refusing to consider the likely outcome of a “contested divorce” in determining whether the debt- or received reasonably equivalent value.

For the reasons that follow, the Panel affirms in part and reverses in part the bankruptcy court judgment, and remands the case for further proceedings.

II. JURISDICTION AND STANDARD OF REVIEW

The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide [265]*265this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the Panel and no party has timely elected to have this appeal heard by the district court. 28 U.S.C. § 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, a final order “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). A bankruptcy court order which sets aside a fraudulent conveyance pursuant to 11 U.S.C. § 548(a) is a final order for purposes of appeal. Lyon v. Eiseman (In re Forbes), 372 B.R. 321, 325 (6th Cir. BAP 2007).

A bankruptcy court’s determination that a transfer should be set aside under 11 U.S.C. § 548(a) presents a mixed question of law and fact. A bankruptcy court’s determination as to whether the debtor received reasonably equivalent value is a question of fact. Southeast Waffles, LLC v. U.S. Dep’t of Treasury (In re Southeast Waffles, LLC), 460 B.R. 132, 139 (6th Cir. BAP 2011). Findings of fact are reviewed under the clearly erroneous standard. Riverview Trenton R.R. Co. v. DSC, Ltd. (In re DSC, Ltd.), 486 F.3d 940, 944 (6th Cir.2007). “A finding of fact is clearly erroneous ‘when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Id. (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

Whether a court used the proper methodology in determining value under 11 U.S.C. § 548 is a legal conclusion. Lisle v. John Wiley & Sons, Inc. (In re Wilkinson), 196 Fed.Appx. 337, 342 (6th Cir.2006) (unpub.). The bankruptcy court’s legal conclusions are reviewed de novo. Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 522 (6th Cir.2011). “De novo means that the appellate court determines the law independently of the trial court’s determination.” Treinish v. Norwest Bank Minn., N.A. (In re Perian-dri), 266 B.R. 651, 653 (6th Cir. BAP 2001) (citations omitted).

III. FACTS

Prior to filing for bankruptcy relief, Karen Neal (“Debtor”) entered into a separation agreement with her husband, Carl Bruno (“Bruno”). The separation agreement was executed on July 30, 2008 (“Separation Agreement”). At the time of the separation, the parties had been married for approximately thirteen years.

Prior to executing the Separation Agreement, Debtor transferred to Bruno her one-half interest in the marital residence at 109 N. Raccoon Road, Austintown, Ohio (“Marital Residence”). The transfer took place on June 11, 2008, and was accomplished by Quit Claim Deed. Prior to the transfer, Debtor paid a home equity line of credit on the Marital Residence in full with a $28,000 loan from her parents. The Separation Agreement provided that Debt- or waived any claim for equity in the Marital Residence. At the time of the transfer to Bruno, the Marital Residence had a fair market value of $77,500.00 and was subject to a first mortgage of $50,000.00. Bruno agreed to be solely responsible for the mortgage.

The Separation Agreement provided that Bruno would retain a vehicle and three motorcycles which were marital property.1 Bruno retained two other mo[266]*266torcycles and another vehicle which were non-marital property. Bruno also retained two tracts of real property in Trumbull County, Ohio, which he had acquired prior to the marriage by bequest from his father. The tracts consisted of approximately 60 acres total. In the Separation Agreement, Debtor acknowledged that the Trumbull County property was Bruno’s separate property.

The Separation Agreement provided that Debtor would retain a 1999 Pontiac Bonneville. The Separation Agreement stated that there was no marital debt and that the parties had divided their bank accounts to their mutual satisfaction. Both parties waived any claim to spousal support and each party agreed to retain their pension and/or retirement accounts free and clear of any claim from the other. At the time of the parties’ divorce, the only retirement account possessed by either party was Debtor’s pension with UPS.

The Trumbull County Court of Common Pleas granted Debtor and Bruno a Dissolution of Marriage (“Dissolution Decree”) on September 4, 2008. The Dissolution Decree states that “the Separation Agreement entered into by and between the Petitioners,. having been found to be fair and equitable, is hereby approved and incorporated into this Decree in its entirety.” Dissolution Decree at 2, Adv. Proc. No. 10-04132, ECF No. 48.

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Cite This Page — Counsel Stack

Bluebook (online)
478 B.R. 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suhar-v-bruno-in-re-neal-bap6-2012.