UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
JAMES E. COX, JR.
DEBTOR CASE NO. 89-00334
JAMES E. COX, JR. PLAINTIFF
VS. ADVERSARY NO. 89-0275
BETTY COX CUMMINS and
COMMONWEALTH OF KENTUCKY DEFENDANTS
This matter is pending before the Court on the Motion of defendant Commonwealth of Kentucky for Summary Judgment and the Motion of defendants Charles and Betty Cummins for Summary Judgment. The Commonwealth contends that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law that the plaintiff's indebtedness to the Commonwealth for child support paid to Betty Cox Cummins and assigned to the Commonwealth is excepted from discharge pursuant to 11 U.S.C.'523(5). Defendants Cummins contend that any disbursement to the plaintiff from recovery for the wrongful death of his illegitimate son should be declared a non-exempt asset and that his indebtedness to defendant Betty Cox Cummins is also excepted from discharge pursuant to '523(5). This Court has jurisdiction of this matter pursuant to 28 U.S.C. '1334; it is a core proceeding pursuant to 28 U.S.C. '157(b)(1).
This proceeding was initiated by the plaintiff's Complaint to Determine Dischargeability of Debt, filed on December 12, 1989. Therein the plaintiff stated that he was indebted to Charles Cummins pursuant to a Franklin Circuit Court judgment, to Betty Cox Cummins for child support arrearages, and to the Commonwealth of Kentucky for child support benefits paid to Betty Cox Cummins and assigned to it. He prayed that his indebtedness to defendant Charles Cummins be declared dischargeable pursuant to''523(b) and 727 and that his indebtedness to all the defendants be declared dischargeable pursuant to KRS 427.110 and 427.150.
Defendants Cummins filed their Answer on January 17, 1990; the Commonwealth's Answer was filed on January 22, 1990. The Commonwealth filed its Motion for Summary Judgment on May 21, 1990. The Cumminses filed their Motion for Summary Judgment on June 1, 1990. The plaintiff filed a Response on June 21, 1990.
The plaintiff and defendant Betty Cox Cummins were divorced in 1965 and had a child, Jason, born in 1969. In 1985 Jason was killed in a two-vehicle accident. A consolidated wrongful death action brought in Franklin Circuit Court, Civil Action 86-CI-1438, was settled for $50,000.00 on December 23, 1986. No funds have yet been disbursed to the plaintiff, as a case styled Betty Cummins, Movant, versus James Cox, Jr., Respondent, No. 89-SC-000662, is now pending before the Kentucky Supreme Court, for a determination of entitlement to the funds.
Before the filing of his bankruptcy petition, the plaintiff's property interest in the above-referenced matter was in the nature of a cause of action. Pending a final determination, it remains a cause of action, except that as of the date of the filing of his petition, September 25, 1989, it is the property of the bankruptcy estate. See 11 U.S.C.'541. It serves no purpose for this Court to indulge in a premature and speculative exercise as to the nature of the plaintiff's possible future property interest. This matter is one to be resolved between the plaintiff and the Trustee upon the outcome of the case before the Kentucky Supreme Court. Any ruling by this Court on this issue now would be inappropriate.
This Court will, however, resolve herein the issue of the dischargeability of the plaintiff's debts to the defendants. 11 U.S.C.'523(5) clearly states that debts for child support are non-dischargeable. In addition, any debt arising out of child support assigned to a governmental unit is non-dischargeable. The plaintiff has admitted that he is indebted to Betty Cox Cummins for child support arrearages and to the Commonwealth of Kentucky for benefits paid to her and assigned. Therefore, as to these two defendants, there is no genuine issue as to any material fact and they are entitled to judgment as a matter of law that the plaintiff's debts to them for child support are non-dischargeable.
As to defendant Charles Cummins,'523(5) does not apply, as he is neither spouse, former spouse, nor child of the debtor. Therefore, the plaintiff's indebtedness to him, pursuant to judgment of the Franklin Circuit Court, is dischargeable in bankruptcy.
It is therefore the opinion of this Court that the Motions of the Commonwealth of Kentucky and Betty Cox Cummins for Summary Judgment that the plaintiff's debts to them are non-dischargeable pursuant to 11 U.S.C.'523(5) should be SUSTAINED. Defendant Charles Cummins's Motion for Summary Judgment on this issue should be OVERRULED. The Motion of Charles and Betty Cox Cummins for Summary Judgment that any disbursement the plaintiff may receive from the wrongful death recovery is a non-exempt asset should be OVERRULED.
By the Court -
Willie E. Peale, Jr., Esq.
James P. Benassi, Esq.
John C. Ryan, Esq.
Mark Miller, Trustee