ROBERT H. JACOBVITZ, United States Bankruptcy Judge.
Plaintiff Carl Fox and Defendant Darla J. Kelly are former spouses. Plaintiff seeks summary judgment on his claim that certain debts he asserts arose from the parties' dissolution of marriage proceedings in state court are non-dischargeable under 11 U.S.C. § 523(a)(5) and 11 U.S.C.
The Court will grant summary judgment when the requesting party demonstrates that there is no genuine dispute as to a material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a), made applicable to adversary proceedings by Fed.R.Bankr.P. 7056. "[A] party seeking summary judgment always bears the initial responsibility of informing the ... court of the basis for its motion, and ... [must] demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In considering a motion for summary judgment, the Court must "examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment." Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.1995) (quoting Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990)). "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial" through affidavits or other supporting evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
New Mexico Local Bankruptcy Rule 7056-1 requires the movant to number all material facts movant contends are not subject to genuine dispute, with references to the portions in the record upon which the movant relies to establish each material fact. See NM-LBR 7056-1 ("The facts shall be numbered and shall refer with particularity to the portions of the record relied upon."). Similarly, the party opposing a motion for summary judgment must number each material fact the party contends is in genuine dispute, with references to particular portions of the record upon which the party relies, and must identify which of the moving party's numbered facts the opposing party contends are disputed. See NM-LBR 7056-1(b). Unless the party opposing summary judgment specifically controverts a material fact, all properly supported material facts identified in the motion for summary judgment are deemed admitted. See NM-LBR 7056-1(b) ("All facts in movant's statement of facts that are properly supported shall be deemed admitted unless respondent specifically controverts them."). Defendant is not represented by counsel. Her Response does not comply with the requirements of NM-LBR 7056-1(b) because it does not include a statement of numbered facts Defendant alleges are disputed, nor does the Response identify by number which of the Plaintiff's facts she contends are subject to genuine dispute. Instead, the Response attempts
1. Defendant filed a voluntary petition under Chapter 7 of the Bankruptcy Code on January 28, 2015. Brief, ¶ 2; Response, p.1.
2. Plaintiff and Defendant were divorced on November 22, 2004. Brief, ¶ 4; Response, p.1.
3. The parties' divorce decree, which dissolved the marriage between them, was entered in the Thirteenth Judicial District Court, County of Valencia, State of New Mexico (the "State Court") in Case No. D-1314-DM2003-394 (the "State Court Action"). Brief, ¶ 4; Response p.1.
4. On February 26, 2014, the State Court entered an Order Regarding January 31, 2014 Hearing in the State Court Action (the "February 2014 Order"). See Brief, Exhibit 1 attached to Exhibit 1; Response, Exhibit A.
5. The February 2014 Order awarded a judgment against Plaintiff for "child support arrears." See February 2014 Order, ¶ 19.
6. On August 14, 2014, the State Court entered a Default Order in the State Court Action (the "August 2014 Order"). See Brief, Exhibit 2 attached to Exhibit 1; Response, Exhibit B-1.
7. The August 2014 Order entered a "consolidated judgment" in favor of Plaintiff and against Defendant for the following expenses: a) guardian ad litem fees; b) orthodontic work for the parties' child; c) expenses relating to a trip the parties' child took with the Travel Club; and d) Plaintiff's attorneys' fees and costs. Id.
At issue is whether the debts arising from the February 2014 Order and the August 2014 Order are non-dischargeable under § 523(a)(5) or § 523(a)(15). In a Chapter 7 case, debts for "domestic support obligations" as well as debts owed to a former spouse that do not constitute domestic support obligations but that are otherwise "incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree, or other order of a court of record" are non-dischargeable. See 11 U.S.C. § 523(a)(5) (domestic support obligations); 11 U.S.C. § 523(a)(15) (other debts arising from a divorce proceeding that are not domestic support obligations under subsection (5)). By enacting these sections, Congress has made a policy choice that favors the enforcement of obligations to former spouses arising from a dissolution of marriage over the debtor's fresh start. See Taylor v. Taylor (In re
Section § 523(a)(5) makes debts for domestic support obligations non-dischargeable. 11 U.S.C. § 523(a)(5). The Bankruptcy Code defines "domestic support obligation" as a debt "owed to a spouse, former spouse, or child of the debtor ... in the nature of alimony, maintenance or support ... of such spouse, former spouse or child of the debtor ... without regard to whether such debt is expressly so designated .... by reason of applicable provisions of ... an order of a court of record." 11 U.S.C. § 101(14A).
The facts not subject to genuine dispute establish that the debt created by the February 2014 Order is non-dischargeable under § 523(a)(5) as a domestic support obligation. The February 2014 Order was entered in the State Court Action and created a debt owed to Plaintiff by his former spouse. It awarded Plaintiff judgment for "child support arrears." See February 2014 Order. Defendant acknowledges that the debt represented by the February 2014 Order is "back child support owed to minor child Carleigh Mary-Jett Fox," but argues that such debt "will be caught up with the court[']s direction to mediate a payment schedule." See Response, p. 2. Defendant's acknowledgement contained in her Response, together
It is not entirely clear whether the debts arising under the August 2014 Order are domestic support obligations that are non-dischargeable under § 523(a)(5) or debts arising in connection with a divorce decree other than domestic support obligations that are non-dischargeable under § 523(a)(15), or whether some of the debts fall in each category. It is clear, however, that all of the debts arising under the August 2014 Order fall into one of those two categories. Because the debts are non-dischargeable regardless of whether they fall under§ 523(a)(5) or § 523(a)(15), the Court need not decide which section applies to each debt.
As discussed above, child support obligations are domestic support obligations that are non-dischargeable under § 523(a)(5). Non-dischargeability under § 523(a)(15) requires proof of the existence of a debt that is: 1) owed to a spouse, former spouse, or child of the debtor; 2) incurred in connection with a separation agreement, divorce decree, or other order of a court; and 3) not of a kind found in § 523(a)(5). 11 U.S.C. § 523(a)(15). This exception to discharge expands the range of marital obligations beyond those covered by § 523(a)(5), and is construed more liberally than other exceptions to discharge found in § 523(a). Taylor II, 478 B.R. at 431 n. 26.
The facts not subject to genuine dispute are sufficient to establish that the debt represented by the August 2014 Order is non-dischargeable under either § 523(a)(5) or § 523(a)(15). The August 2014 Order granted judgment in favor of Plaintiff creating a debt owing to Defendant's former spouse. The August 2014 Order was entered by the State Court in the same State Court Action as the divorce decree. It was entered in the State Court Action as part of the parties' dissolution of marriage proceeding and creates obligations connected to the divorce decree. That the parties' divorce decree was entered nearly ten years earlier, in November of 2004, makes no difference.
The "consolidated judgment" embodied in the August 2014 Order covers several different expenses, including guardian ad litem fees, the child's orthodontic work for Plaintiff's and Defendant's child, a trip the child took, and Plaintiff's attorneys' fees and costs. All or some of Defendant's obligations to pay these expenses may constitute obligations for child support of a type non-dischargeable under § 523(a)(5). To the extent the obligations do not constitute non-dischargeable domestic support obligations under § 523(a)(5), they are non-dischargeable debts under § 523(a)(15) as debts connected to the divorce decree.
Defendant acknowledges her responsibility to pay the debt arising from the February 2014 Order, but requests a mediated payment schedule. She also complains that the amounts the State Court assessed in the February 2014 Order and the August 2014 Order were based on inaccurate information and that she cannot pay the amounts due. Defendant attached documentation to her Response that may evidence payment of some of the expenses awarded to Plaintiff under the August 2014 Order. See Response — Exhibit C. A debtor's ability to pay is not
Enforcement of a non-dischargeable judgment, including the determination of the total amount of the non-dischargeable debt, can be accomplished in the State Court Action. Cf. Robbins v. Breckenridge (In re Robbins), 1997 WL 34726864, *11 (Bankr.W.D.Tenn. Aug. 13, 1997) (directing the parties to return to state court for a determination of monetary judgments, enforcement issues, or to seek modification of the support obligations following the bankruptcy court's non-dischargeability determination under § 523(a)(5) or § 523(a)(15)). After this Court's non-dischargeability determination, the State Court can quantify (and modify, if appropriate) the amount of the non-dischargeable debt as part of the parties' ongoing State Court Action. See Brennick v. Brennick (In re Brennick), 208 B.R. 613, 615 (Bankr.D.N.H.1997) ("The state divorce court can revisit and modify the obligations that have been determined by this Court to be non-dischargeable ...").
Based on the foregoing, the Court concludes that the debts arising from the February 2014 Order and the August 2014 Order cannot be discharged through Defendant's Chapter 7 bankruptcy case. The debt arising from the February 2014 Order is a non-dischargeable domestic support obligation. The debts arising from the August 2014 Order are non-dischargeable either under § 523(a)(5) as domestic support obligations, or under § 523(a)(15) as debts other than domestic support obligations connected to the divorce decree. The Motion is granted to the extent it seeks a non-dischargeability determination for the debts arising from the February 2014 Order and the August 2014 Order and is denied with respect to Plaintiff's request for a quantified amount of the non-dischargeable debt. The Court will enter a separate judgment consistent with this Memorandum Opinion.
The term `domestic support obligation' means a debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable non-bankruptcy law notwithstanding any other provision of this title, that is —