IN RE: JOSEPH R. WITTENBARGER NINA J. WITTENBARGER CASE NO. 94-51891

UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF KENTUCKY

LEXINGTON DIVISION

IN RE:

JOSEPH R. WITTENBARGER

NINA J. WITTENBARGER CASE NO. 94-51891

DEBTORS

VICTORIA DUVALL WITTENBARGER PLAINTIFF

v. ADV. NO. 95-5031

JOSEPH ROBERT WITTENBARGER DEFENDANT

MEMORANDUM OPINION

Plaintiff, Victoria Duvall, formerly Victoria Duvall Wittenbarger, is the former wife of the defendant debtor, Joseph Robert Wittenbarger. On March 28, 1995, plaintiff commenced this adversary proceeding to have the court determine the dischargeability of certain debts owed by the debtor as a result of the dissolution of the marriage of plaintiff and defendant.

By order entered on October 24, 1995, following trial in this adversary proceeding, the court awarded judgment in the amount of $10,597.58 to plaintiff for maintenance owed from December, 1993 through June, 1996, and ordered that the indebtedness be excepted from discharge pursuant to 11 U.S.C. § 523(a)(5). Plaintiff's trial exhibit no. 46 shows how the amount of the judgment was determined.

On November 2, 1995, the defendant debtor timely filed a motion to alter, amend or vacate the judgment on the grounds the amount of the award was erroneously computed. The motion was heard on November 22, 1995.

In his motion the debtor contends, as he did at trial, that from May, 1994 through September, 1994, he satisfied in whole or in part his monthly obligation to pay maintenance to plaintiff by making monthly payments on the plaintiff's car loan and on the mortgage on plaintiff's residence, both of which debts were allocated to plaintiff in the marriage dissolution proceeding. See paragraph 18 of the Settlement Agreement filed on July 15, 1993 in the parties' divorce proceeding in the Scott Circuit Court. Plaintiff's trial exhibit no. 46 credits the debtor with payments in the four months from June, 1994 through September, 1994 but does not credit the debtor with payments for May, 1994. Although plaintiff disputes that debtor paid any maintenance in May, 1994, she will concede the point in order to facilitate a resolution of the motion to alter or amend. Thus, the judgment shall be reduced by $720.00 to reflect a payment made in May, 1994 which was not recorded on plaintiff's trial exhibit no. 46.

According to exhibits filed in support of the debtor's motion to alter or amend the judgment, the debtor asserts that from May, 1994 through September, 1994, he paid maintenance in the amount of $725 rather than $720 per month as reported on plaintiff's trial exhibit no. 46. The debtor claims that the car payment was $125 per month and the mortgage payment was $600 per month. However, he adduced no evidence at trial or with his motion to alter or amend in support of his argument. Accordingly, credits for payments the debtor made from May, 1994 through September, 1994 shall remain at only $720.00 per month.

Debtor's primary argument for amending the judgment is that the amount of maintenance owed for the months of January, 1994 through November, 1994, as set forth on plaintiff's trial exhibit no. 46, was not calculated in accordance with the Settlement Agreement filed on July 15, 1993 in the parties' divorce proceeding in the Scott Circuit Court. Paragraph 15 of the Settlement Agreement provides in pertinent part as follows:

Settlement Agreement (emphasis added).

The calculation of maintenance from the date of the settlement agreement in July, 1993 through December, 1993 is not at issue. The parties agree that as of December 31, 1993, a credit in the amount of $2,339.13 had accrued in favor of the debtor. Thereafter the credit was applied against his monthly obligation to pay maintenance until the credit was exhausted. It is the amount of maintenance owed by the debtor from January, 1994 through November, 1994, calculated in conformity with the formula set forth in paragraph 15 of the Settlement Agreement, which is at issue. To apply the formula in paragraph 15, plaintiff's net monthly earnings must first be ascertained.

Plaintiff was employed by Prudential Securities, Inc. during the period relevant to this discussion, January, 1994 through November, 1994. A statement of plaintiff's earnings during this period, entitled "Check History Report," was introduced at trial as exhibit no. 47.

Relevant data which has been extracted from the check history report is as follows:

Plaintiff states she received a check for wages on or near the 15th and 30th of each month, which is consistent with the dates in the second column above, "Check Date." The dates in the first column, "Period End DT," are the dates on which each pay period ended. The debtor relies on the pay period ending date, not the check date, in calculating the plaintiff's monthly earnings. For example, the debtor argues the plaintiff's monthly earnings in January of 1994 were $1,012.36, computed as follows:

The debtor takes the position that since $1,012.36 is in excess of $950.00 (see ¶15 of the Settlement Agreement), he owes no maintenance for January, 1994.

The plaintiff counters that she received a check on January 18, 1994 in the amount of $326.18 and a check on January 31, 1994 in the amount of $346.47; therefore her net monthly income for the month of January, 1994 was only $672.65:

Because plaintiff received net monthly income in an amount less than $950.00, the debtor must pay maintenance for January 1994, but is entitled to a credit of 30% of plaintiff's net monthly earnings, or a credit of $201.80 (.30 x $672.65). Thus, according to the plaintiff, the debtor owes maintenance for January 1994 in the amount of $748.20 ($950.00 - $201.80).

The court is of the opinion that the plaintiff's calculation of maintenance owed from January, 1994 through October, 1994 is correct. See exhibit C attached to plaintiff's response to debtor's motion to alter or amend, which appears to be a revision of plaintiff's trial exhibit no. 46. Paragraph 15 of the settlement agreement refers to "employment which produces net monthly income of less than $950.00" and "net monthly income received by" the plaintiff. The plaintiff's net monthly income is logically determined by reference to the date on which she received her paycheck, which, according to the plaintiff in testimony at trial and in her response to the debtor's motion, corresponds to the "check date," the second column set forth in the table above.

The plaintiff appears to have made a mathematical error in computing the amount of maintenance owed in November, 1994. According to the court's calculations, the amount of maintenance owed for November, 1994 is $745.86, not $744.06 as set forth on exhibit C by the plaintiff ($356.35 + $324.13 = $680.48; $680.48 x .30 = $204.14; $950.00 - $204.14 = $745.86).

A review of plaintiff's exhibit C reveals other discrepancies which, although not addressed by the parties, nevertheless must be resolved by the court.

The exhibits attached to debtor's motion to alter or amend the judgment reflect an indebtedness for maintenance in the amount of $950.00 for the month of December, 1994, during which month plaintiff left the employ of Prudential Securities. The plaintiff's trial exhibit no. 46 also shows the debtor owes $950.00 in maintenance for the month of December, 1994. However, according to exhibit C attached to plaintiff's response, debtor owes maintenance in the amount of only $823.22 for that month. The court will accept the plaintiff's lower figure.

The parties agree that the debtor owes $950.00 per month for the months of January, February, and March, 1995, during which time plaintiff was unemployed, that he owes $741.59 for April, 1995, and that he owes no maintenance for the month of May, 1995 because plaintiff's net monthly income exceeded $950.00.

The debtor's exhibits indicate he owes $869.37 for June, 1995, while the plaintiff's exhibit C shows an indebtedness of $825.41. The court will accept the plaintiff's lower figure as reflected on exhibit C.

The parties agree the debtor owes $200.00 per month for the twelve months commencing July, 1995 and ending June, 1996, a total of $2,400.00. However, the court is of the opinion the judgment should not include the entire $2,400.00 as due and owing at the time of judgment. Instead, the judgment should include only the arrearages as of the date of judgment. The debtor remains obligated to make monthly payments of $200.00 for maintenance through June 1996, which obligation is nondischargeable pursuant to 11 U.S.C. § 523(a)(5).

Taking into account the foregoing, the indebtedness of the debtor for maintenance from January, 1994 through October, 1995, is $8,294.78, calculated as follows:

MONTHLY

MAINTENANCE

DUE

12/93 credit - $2,339.13

1/94 748.20

2/94 741.44

3/94 706.28

4/94 746.12

5/94 $747.47 owed - $720.00 paid = 27.47

6/94 727.45 owed - 720.00 paid = 7.45

7/94 758.54 owed - 720.00 paid = 38.54

8/94 769.12 owed - 720.00 paid = 49.12

9/94 720.03 owed - 720.00 paid = .03

10/94 783.18

11/94 745.86

12/94 823.22

1/95 950.00

2/95 950.00

3/95 950.00

4/95 741.59

5/95 0.00

6/95 825.41

7/95 200.00

8/95 200.00

9/95 200.00

10/95 200.00

Total amount of judgment as of 10/24/95: $8,294.78

This sum is excepted from discharge pursuant to 11 U.S.C. §523(a)(5). In addition, the debtor's obligation to pay $200.00 per month from November, 1995 through June, 1996 is likewise nondischargeable. The judgment shall be amended in conformity herewith.

Dated:

By the court -

Chief Judge

Copies to:

counsel of record

UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF KENTUCKY

LEXINGTON DIVISION

IN RE:

JOSEPH R. WITTENBARGER

NINA J. WITTENBARGER CASE NO. 94-51891

DEBTORS

VICTORIA DUVALL WITTENBARGER PLAINTIFF

v. ADV. NO. 95-5031

JOSEPH ROBERT WITTENBARGER DEFENDANT

AMENDED ORDER AND JUDGMENT

In conformity with the memorandum opinion this day entered, IT IS ORDERED that paragraph 2 of the order entered on October 24, 1995 is amended as follows:

The order of October 24, 1995 otherwise remains in full force and effect.

This is a final and appealable order.

Dated:

By the court -

Chief Judge

Copies to:

counsel of record