MEMORANDUM OPINION

JAMES P. SMITH, Bankruptcy Judge.

PROCEDURAL POSTURE

On November 28, 2018, the Court held a confirmation hearing on Debtors' modified Chapter 13 plan. In this opinion, and for the reasons explained below, the Court will only address the issue of whether Debtors filed their Chapter 13 petition in good faith. 11 U.S.C. § 1325(a)(7). At the hearing, the Court initially stated that it would also consider whether the modified plan was proposed in good faith (§ 1325(a)(3)) and whether the modified plan was feasible (§ 1325(a)(6)). However, because Debtors intend to file another modified plan, and because that potential future plan appeared to evolve during the hearing, the Court has determined that it will not consider, at this time, whether any such plan has been proposed in good faith and whether it would be feasible.

FACTS

Prior to November 2012, Debtor Steven Chapman ("Steven") and Heather Chapman ("Heather") were married and lived in a home in Royston, Georgia ("the marital home"). Sometime prior to 2012, Heather moved to England to go to veterinarian school. Steven remained in Georgia. While Heather was in England, Steven became involved with another woman. This ultimately led to their divorce.

A Separation Agreement was entered by the Superior Court of Franklin County, Georgia, on November 18, 2012. As it relates to this Chapter 13 case, Steven and Heather agreed to terminate their marriage, both parties waived alimony and Steven was granted sole ownership of the marital home and agreed to assume and pay the debt secured by the home.1 Steven also agreed to pay Heather's USAA credit card debt of approximately $9,000. Thereafter, Steven made payments on the marital home, but never made any payments on the credit card debt.

Steven is a heavy equipment operator for the Georgia Air National Guard. In 2016, he was deployed to Kuwait. Upon return, he could not find full time work and fell behind on the mortgage payments on the marital home.

In early 2017, Heather brought a contempt action against Steven for his failure to pay the credit card debt and mortgage payment. The state court entered a temporary order on March 7, 2017, in which Steven, inter alia, agreed to pay Heather, within 45 days, $3,421 to reimburse her for payments she had made on the credit card debt. He also agreed to resume the mortgage and credit card payments within 30 days. However, Steven and Whitney Chapman (his current wife and hereafter "Whitney") filed a Chapter 7 petition on April 13, 2017. In May 2017, Debtors moved to convert their case to a Chapter 13 case. Heather objected to the conversion. After notice and hearing, the Court overruled the objection and, on June 29, 2017, entered an order converting the case to Chapter 13.

Steven never made any payments on the credit card debt. It is unclear from the record in this case what payments he made on the mortgage. However, the Court notes that on January 19, 2018, U.S. Bank Trust, N.A. filed a motion for relief alleging that it held the debt secured by the marital home and that Steven was in default for postpetition payments from July 2017 through December 2017. A consent order granting relief from stay was entered on February 20, 2018.

During this case, Steven's employment status has changed frequently. When the case was originally filed, Steven was a delivery driver for Aaron's Lease and Sales, for which he received gross monthly income of $1,256.67. He also worked part-time at a pet boarding business and earned approximately $350 per month. He also received approximately $590 per month from the Georgia Air National Guard. From January 2018 through July 2018, Steven was deployed to Africa with the Georgia Air National Guard. While deployed, he received from the Guard monthly gross pay of $6,455 and Whitney received $150 per month as separation pay. Upon his return, Steven obtained full time employment in September 2018 as an equipment operator with Hart County, Georgia and is paid gross monthly income of $2,343. He also continues to work part-time at the pet boarding business, making approximately $150 per month, and his Georgia Air National Guard monthly payment is now $500. Throughout this case, Whitney has been a self-employed hair stylist. She is currently making approximately $750 per month.

As a result of changes in Steven's employment status, Debtors have amended their Schedules I and J on three separate occasions. Their original Chapter 13 plan was a 36 month plan which paid a minimal dividend to unsecured creditors and provided for surrender of the marital home. A modified plan was filed in May 2018 to take into account Steven's increased income while he was deployed to Africa. The plan proposed to pay $448 per month, retroactive to January 1, 2018. A confirmation hearing on this plan was scheduled for November 28, 2018. However, on November 27, Debtors filed their third amended Schedules I and J to reflect the decrease in Steven's income upon his completion of his Africa deployment. Accordingly, on its face, the modified plan filed in May 2018 is not feasible.

At the hearing on November 28, 2018, counsel for Debtors acknowledged that the plan is not feasible. He advised the Court that a new modified plan would be filed and served on creditors. The Court considered continuing the hearing until the new modified plan was filed. However, Heather and her attorney were in attendance at the hearing. Heather has objected to confirmation of Debtors' plan on the grounds that Debtors' petition was not filed in good faith and that the plan was not filed in good faith. She also objected to confirmation on the grounds that the original schedules and amendments filed in this case were inaccurate and incomplete. Heather, at apparent significant expense, had traveled from England to attend the confirmation hearing. Accordingly, so that Heather would not have to incur the additional expense of returning from England for a continued confirmation hearing, the Court, without objection of the parties, agreed to hear evidence on the issue of whether Debtors filed their petition in good faith.

At the conclusion of the evidentiary hearing, the Court invited the parties to submit their closing arguments by letter brief to the Court. Having considered those briefs, the testimony and documents introduced at the hearing and the law, the Court now publishes its findings of fact and conclusions of law with respect to the issue of good faith filing.

DISCUSSION

11 U.S.C. § 1325(a) provides, in pertinent part:

As the Eleventh Circuit has explained:

Brown v. Gore (In re Brown), 742 F.3d. 1309, 1316-17 (11th Cir. 2014). The Eleventh Circuit has also:

Rivas v. Bank of New York Mellon (In re Rivas), 682 Fed. Appx. 842, 845 (11th Cir. 2017) (internal quotations and citations omitted). Although Debtors bear the ultimate burden of proving their plan is confirmable, Heather, as the objecting creditor, has the initial burden of going forward with some evidence to support her objection. Matter of Duke, 447 B.R. 365, 368 (Bankr. M.D. Ga. 2011).

Heather, in her closing letter brief2 and through questions asked by her attorney at the hearing, has pointed to a number of factors which she contends show that Debtors filed their petition in bad faith. Curiously, in his brief Heather's attorney relies on the case of Piazza v. Nueterra Healthcare Physical Therapy, LLC (In re Piazza), 719 F.3d. 1253 (11th Cir. 2013) to support her argument of bad faith filing. However, in that case, the Eleventh Circuit addressed the issue of whether a debtor's pre-petition bad faith could be considered in determining bad faith under the "totality of circumstances" standard under 11 U.S.C. § 707(a)(3). Except with respect to determining disposable income under 11 U.S.C. § 1325(b)(2) (which is not at issue in this case at this time), section 707 does not apply to Chapter 13 cases. 11 U.S.C. § 103(b). In fact, section 707 is designed to determine whether the filing of a Chapter 7 case is an abuse and that the case should be filed as a Chapter 11 or 13 case. In short, section 707 and Piazza are simply inapplicable to determining whether a Chapter 13 case has been filed in good faith.

Heather also contends that bad faith is shown by fluctuations in Debtors' budgets. However, the testimony at the hearing established that Steven's income had fluctuated due to interruptions in his employment caused by his deployment to Africa during the first six months of 2018. Whitney's income had fluctuated due to health problems. The amendments to their Schedule J do show that there have been fluctuations in their monthly expenses. Some of the changes in the expenses can be explained by the fact that the original Schedule J did not include the Debtors' monthly payment of $689 for use of Whitney's mother's SUV. Another major change relates to medical expenses which could be explained by Whitney's testimony that she had health problems last year. There has been no showing that any of the expenses were improper or excessive. Accordingly, Heather has failed to explain why the fluctuations in Debtors' budgets establish a bad faith filing.

Heather complains about Debtors' proposed use of a $1,000 tax refund. However, while that may be relevant to determining whether Debtors are contributing the proper amount of "disposable income" under 11 U.S.C. § 1325(b)(2), the Court fails to see how it relates to a bad faith filing.

Heather complains that Debtors are renting the home of Whitney's parents (the parents having moved to another building on the property) and have agreed to pay upkeep of $200 per month on the home. However, Heather introduced no evidence that the rental payment ($930 per month) and the maintenance cost are an inappropriate amount for a family of six.3

At the hearing, Heather's attorney spent a great deal of time questioning Steven on his failure to comply with his obligations under the Separation Agreement and the Temporary Order. The Separation Agreement does not specify how the credit card debt was to be paid. Steven testified that when Heather requested a specific amount each month (presumably Heather's monthly minimum credit card payment to USAA), he was unable to pay that amount and offered to pay a lesser amount, which Heather rejected. Steven also testified that the disruption in his employment, caused by his deployments to Kuwait and Africa, had affected his ability to pay the mortgage on the marital home. The Court concludes that the evidence establishes nothing more than normal financial problems which this Court routinely sees in Chapter 13 cases. The Court simply fails to find any evidence of bad faith filing relating to Steven's inability to meet his obligations to Heather.

In her objection to confirmation, Heather also argues that the schedules and amendments filed in this case are inaccurate and incomplete. As previously stated, the initial Schedule J did not disclose the $689 monthly payment for the use of Whitney's mother's SUV. However, this was disclosed on all subsequent amendments. Heather also complains that the schedules did not reflect child support payments which Whitney receives from her former husband. However, the evidence established that in the last 12 months, Whitney has received approximately $1,500 in sporadic payments from her former husband. Since March 2018, she has received only $100 and has received nothing since July 2018. The instructions on Part 2 of Schedule I provide, "Estimate monthly income as of the date you file this form." Given the sporadic and relatively small amounts of child support payments she has received, it is not surprising that she did not list child support as "Estimated monthly income". In any event, errors and omissions in schedules do not establish lack of good faith where the debtor receives no advantage therefrom. In re Roberts, 339 B.R. 807, 813 (Bankr. M.D. Ga. 2006).

Heather's attorney also spent a great deal of time introducing evidence relating to emails and Facebook postings between Heather and Debtors. These documents appear to relate to correspondence between the parties in 2016.4 The emails relate to Heather's demands to Steven and Whitney that Steven honor his obligations to her and Steven's responses thereto. The Facebook postings contain derogatory comments allegedly made by Whitney, Steven and others about Heather.5 In this Court's experience, it is not unusual to see relationships between ex-spouses degenerate. However, Heather's attorney has not explained how these documents, which were created more than one year before the filing of Debtors' petition, establish bad faith.

The Court has carefully considered the Kitchens factors as they relate to the evidence in this case. The Court agrees with the analysis of Debtors' attorney in his letter brief (Docket No. 119) and his conclusion that the application of the Kitchens factors does not establish bad faith. Further, the Court is fully aware that of all of Debtors' creditors, Heather may suffer the most financially as a result of this Chapter 13 case. Heather's claim arising under the Separation Agreement represents 43 percent of the claims filed in this case. Pursuant to 11 U.S.C. § 1328(a)(2), domestic support obligations excepted from discharge under section 523(a)(5) are not dischargeable in a Chapter 13 case. However, divorce obligations not covered by section 523(a)(5), but covered under section 523(a)(15) (property settlements), are dischargeable. The Court has made no determination as to whether Steven's obligations to Heather are domestic support obligations or in the nature of a property settlement.6 However, even if it is determined that Heather's claim is in the nature of a property settlement and thus dischargeable, that alone would not establish bad faith.

In re Fulmer, 535 B.R. 854, 860 (Bankr. M.D. Ala. 2015). Accord In re O'Neal, 2012 WL 1940594, at *10 (Bankr. N.D. Ga., April 13, 2012).

It is this Court's conclusion that the "totality of the circumstances" establishes that Debtors filed this case "with the honest intent and genuine desire to utilize the provisions of Chapter [13] for its intended purpose—to effectuate . . . reorganization—and not merely as a device to serve some sinister and unworthy purpose of the [debtors]." In re Rivas, supra. Accordingly, the Court finds that Debtors filed this case in good faith and the bad faith filing objection to confirmation by Heather Chapman is overruled.