IN RE: EDWARD K. ATKINSON CASE NO. 96-50327

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

IN RE:

EDWARD K. ATKINSON CASE NO. 96-50327

DEBTOR

J. MICHAEL CONSIDINE, JR. PLAINTIFF

VS. ADVERSARY NO. 96-5041

EDWARD K. ATKINSON DEFENDANT

MEMORANDUM OPINION

This adversary proceeding to determine the dischargeability of a debt is before the court on cross motions of the plaintiff and the defendant debtor for summary judgment.

The plaintiff, an attorney, seeks a judgment determining that a fee awarded to him for assisting the former spouse of the debtor in collecting support and maintenance payments is excepted from discharge under 11 U.S.C. 523(a)(5).

The original complaint contained allegations concerning transfers of property by the debtor alleged to be fraudulent, and sought to impress a constructive trust on the transferred properties as a means of collecting the plaintiff’s fee. The court ruled that the allegedly fraudulent transfers of property were matters to be pursued by the chapter 7 trustee rather than an individual creditor.

The second amended complaint alleges that a debt of $11,848.98 owed by the debtor to plaintiff for attorney fees and costs and related costs in a domestic relations matter is nondischargeable under title 11 U.S.C. 523(a)(5).

The debtor, a retired anesthesiologist, formerly resided and practiced medicine in Pennsylvania. In 1986 he commenced a divorce action against his wife in the Court of Common Pleas of Montgomery County, Pennsylvania, Case No. 86-14888. On December 7, 1989 the court entered a support order in favor of the debtor’s spouse.

During the pendency of the Pennsylvania divorce action the debtor moved to Kentucky. He obtained a license to practice medicine in Kentucky in 1992.

The debtor’s spouse, Sally L. Atkinson, employed the plaintiff herein, J. Michael Considine, Jr., to assist her in collecting delinquent support payments owed by the debtor. Considine filed in the spouse’s behalf a support action ancillary to the divorce action which was still pending in Pennsylvania.

On October 26, 1993 the court in Pennsylvania entered an order finding the debtor in contempt and directing that in order to purge himself of contempt he is ordered as follows:

a) Edward K. Atkinson shall pay forthwith all arrearage on the Support Order of December 7, 1989, filed November 27, 1989, as computed by the Domestic Relations Office of Montgomery County;

 

b) Edward K. Atkinson shall continue to make timely payments in the amount of $750.00 per week on the above Support Order;

 

c) Edward K. Atkinson shall pay all outstanding Blue Cross/Blue Shield premiums and shall pay all outstanding unreimbursed medical and dental expenses of Sally L. Atkinson and shall reimburse Sally L. Atkinson for any of the aforesaid payment which she has made or which have been made on her behalf.

 

d) Edward K. Atkinson shall continue to make timely payments of Sally L. Atkinson’s Blue Cross/Blue Shield premiums and all of her unreimbursed medical and dental expenses.

 

e) Edward K. Atkinson shall not alienate, transfer, sell, convey, liquidate or otherwise dispose of any property, real, personal or mixed, now or hereafter in the name of Edward K. Atkinson, individually or jointly held with another person or entity, E.K. Atkinson, P.C., Valley Forge Anesthesia Consultants, Inc., or Mountain City Anesthesia, Limited, without an application to the Court or the signed agreement of Sally L. Atkinson, pending a final equitable distribution order of the Court.

 

f) Edward K. Atkinson is ordered to pay forthwith to J. Michael Considine, Jr., Esquire the sum of $10,000 as attorney fees.

 

Thereafter, in 1994 the debtor commenced a second divorce action against his spouse in the Garrard Circuit Court, Action No. 94-CI-00092. That court entered a decree on January 12, 1996 dissolving the marriage of the parties. The order provides that all other matters are reserved to the Pennsylvania court which has original jurisdiction thereof.

The order of October 26, 1993 entered by the court in Pennsylvania holding the debtor in contempt and ordering him to pay forthwith to the plaintiff herein the sum of $10,000 as attorney fees does not impose on the debtor’s former spouse the obligation to pay the attorney fees if the debtor does not pay them. There is no indication in the record that the plaintiff has attempted to hold the debtor’s former spouse responsible for the attorney fees.

On these facts the court agrees the plaintiff has not established that the sum owed to him for attorney fees qualifies for exception from discharge as a debt in the nature of alimony, maintenance or support.

CONCLUSIONS OF LAW:

The initial inquiry must be to ascertain whether the state court or the parties to the divorce intended to create an obligation to provide support through the assumption of a joint debt. If they did not, the inquiry ends there. In re Calhoun, 715 F.2d 1103, 1109 (6th Cir. 1983). There is no evidence here that the attorney fees imposed on the debtor was a joint debt for which the debtor’s former spouse was also liable. See also, In re Linn, 38 B.R. 762 (Bkrtcy. App. 1984); In re LaRue, 204 B.R. 531 (Bkrtcy, E.D. Tenn. 1997).

Accordingly, the motion of the plaintiff for summary judgment shall be overruled; the motion of the defendant debtor for summary shall be sustained.

Dated:

By the court –

 

_______________________________

JOE LEE, U.S. BANKRUPTCY JUDGE

 

Copies to:

 

Ronald E. Butler, Esq.

J. Michael Considine, Jr., Esq.

 

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

 

 

IN RE:

 

EDWARD K. ATKINSON CASE NO. 96-50327

 

DEBTOR

 

 

J. MICHAEL CONSIDINE, JR. PLAINTIFF

 

VS. ADVERSARY NO. 96-5041

 

EDWARD K. ATKINSON DEFENDANT

 

 

ORDER

 

In conformity with the memorandum opinion of the court this day entered, IT IS ORDERED that the motion of the plaintiff, J. Michael Considine, Jr., for summary judgment is OVERRULED. The motion of the defendant debtor, Edward K. Atkinson, is SUSTAINED. There being no just reason for delay, this is a final and appealable order.

Dated:

By the court –

 

________________________________

JOE LEE, U.S. BANKRUPTCY JUDGE

 

Copies to:

 

Ronald E. Butler, Esq.

J. Michael Considine, Jr., Esq.