§ 58.5     Alimony and Support Exception
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 58.5, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

In Chapter 13 cases filed before October 22, 1994, there was one exception to the automatic stay for the collection of alimony, maintenance or support: 11 U.S.C. § 362(b)(2) excepted from the stay “the collection of alimony, maintenance or support from property that is not property of the estate.”1 The Bankruptcy Reform Act of 1994 added two domestic relations exceptions to the automatic stay: 11 U.S.C. § 362(b)(2)(A) excepts from the automatic stay “the commencement or continuation of an action or proceeding for—(i) the establishment of paternity; or (ii) the establishment or modification of an order for alimony, maintenance, or support.”2

[2]

In Chapter 13 cases filed after October 22, 1994, it is not necessary to get relief from the stay before commencing or continuing an action to establish paternity or to establish or to modify an order for alimony, maintenance or support.3 Prior to the 1994 amendments, it was sometimes argued that an action to establish paternity was not an action to recover a “claim” against the debtor for purposes of the automatic stay. However, the broad definition of claim probably includes a paternity action, at least to the extent that establishing paternity carries with it a financial obligation of the debtor. To be on the safe side, in cases filed prior to October 22, 1994, the party asserting paternity against a Chapter 13 debtor was best advised to file a request for relief from the stay. Such requests were routinely granted to allow state courts to determine issues of paternity. It is no longer necessary to ask permission to commence or continue a paternity action against a Chapter 13 debtor.

[3]

Alimony, maintenance and support disputes are common in Chapter 13 cases. Notice of a Chapter 13 filing understandably engenders financial insecurity and sometimes anger in a former or almost former spouse. The former spouse’s domestic relations counsel has been more or less successful in state court, would like to stay in the familiar forum and views bankruptcy court as hostile territory. The bankruptcy court has exclusive jurisdiction of all the debtor’s property, including postpetition wages and income in a Chapter 13 case.4 The state domestic relations court has jurisdiction and is free of the automatic stay to fix and modify the debtor’s support obligations to a spouse or child. The collision between state domestic relations jurisdiction and the jurisdiction of the bankruptcy court is inevitable.5

[4]

The exception to the automatic stay for the “establishment or modification of an order for alimony, maintenance, or support”6 was “intended to provide greater protection for alimony, maintenance or support obligations owing to a spouse, former spouse or child of a debtor.”7 However, there is an important difference between the “establishment or modification” of an order for alimony, maintenance or support and “collection” from the debtor.

[5]

The exception to the automatic stay for the collection of alimony, maintenance or support in § 362(b)(2)(B) is worded differently than the (new) exception for the “establishment or modification” of a support order in § 362(b)(2)(A)(ii). In all Chapter 13 cases, whether filed before or after the 1994 Act, the exception to the stay for the collection of alimony, maintenance or support is limited to “property that is not property of the estate.8 In a Chapter 7 or Chapter 11 case, this exception permits the collection of alimony, maintenance or support from a debtor’s postpetition earnings or from property acquired after the petition because such earnings and property are not property of the estate. In a Chapter 13 case, this exception has a much more limited effect as it collides with the expanded definition of property of the estate in 11 U.S.C. § 1306.9 The Bankruptcy Reform Act of 1994 only relettered § 362(b)(2) of the Code—the collection of alimony, maintenance or support in a Chapter 13 case remains tangled with the expanded definition of property of the estate in § 1306. Because the debtor’s postpetition earnings and acquisitions are property of the Chapter 13 estate, the effect of § 362(b)(2)(B) is intercepted, and a former spouse or child10 must first get relief from the stay before seeking collection of alimony, maintenance or support from a Chapter 13 debtor’s postpetition earnings or property.11 The spouse, former spouse or dependent who acts to collect an alimony, maintenance or support claim without first getting relief from the stay risks sanctions and damages, including punitive damages if the violation of the stay is willful.12

[6]

Some courts, intent that the expanded definition of property of the estate in § 1306 should not be permitted to overcome the exception to the automatic stay in § 362(b)(2)(B), have constructed various theories for permitting former spouses to collect alimony or support from postpetition wages and property. For example, one court held that when an action has been commenced to collect alimony prior to the filing of the Chapter 13 case, the debtor’s future earnings remain within the jurisdiction of the state courts notwithstanding 11 U.S.C. § 1306 and the exclusive jurisdictional grant to the bankruptcy court in 28 U.S.C. § 1334.13 Several courts have acknowledged that the automatic stay in concert with § 1306 prohibits a former spouse from collecting alimony, maintenance or support from a Chapter 13 debtor’s postpetition earnings but then have held that relief from the stay should be liberally granted to allow former spouses to continue collection actions against a Chapter 13 debtor; some of these courts have refused to sanction blatant violations of the automatic stay by former spouses.14 One court has held that bankruptcy courts must grant relief from the stay to permit the postpetition collection of alimony, maintenance or support from a Chapter 13 debtor’s postpetition wages because bankruptcy courts were not intended by Congress to become domestic relations courts.15 One circuit court reached the mistaken conclusion that debts for past-due child support may not be dealt with in a Chapter 13 plan even when the debtor proposes to pay 100 percent of the child support claim through the plan.16 When the effort to collect alimony or support has reached the point where contempt or a criminal action is pending against the debtor, the courts have often found some theory for exception to the stay or for granting relief from the stay.17 When the divorce proceeding was not complete at the filing, one court concluded that the state court was better situated to determine the debtor’s and the nondebtor spouse’s rights in marital property as well as entitlement to alimony or child support.18 Under the unusual law of the commonwealth of Puerto Rico, it has been held that the automatic stay is not violated when a wife continues a support collection action after the filing of a Chapter 13 case because all of the debtor’s earnings are property of a separate entity known as a “conjugal partnership” and are not protected by the automatic stay.19

[7]

Debtors with past-due alimony or support use the expanded protection of the stay in Chapter 13 cases to permit a structured repayment of the delinquency over time through the plan. Expanding the precise exceptions to the stay or granting relief from the stay to collect alimony, maintenance or support from a Chapter 13 debtor’s postpetition wages defeats congressional intent to permit Chapter 13 debtors to restructure all debts through a plan that meets the confirmation requirements of § 1325.

[8]

Often, a former spouse can recover alimony or support more quickly through a Chapter 13 case than by nonbankruptcy means. The alimony or support claim will be given special priorities in the plan.20 Relief from the stay to collect an alimony or support claim merely grants the former spouse the opportunity to go to state court and commence or continue a collection action. A properly managed Chapter 13 case is a collection action for the former spouse. Especially in jurisdictions that proceed quickly to confirmation,21 the Chapter 13 case can be the most expeditious judicial procedure for curing alimony and support delinquencies. A payroll deduction order to the debtor’s employer becomes the former spouse’s insurance of payment of ongoing support or alimony. The Chapter 13 trustee polices the debtor’s compliance with payments through a confirmed plan.22

[9]

The extraordinary efforts of some courts to find exceptions to the stay and cause for relief from the stay to collect alimony or support in Chapter 13 cases seems driven more by the desires of some federal judges to avoid domestic relations issues than by careful analysis of the Code. The Supreme Court recognized in Ankenbrandt v. Richards23 that there is no broad domestic relations exception to federal jurisdiction.24 The collection of support arrearages from a Chapter 13 debtor is clearly within the jurisdiction of the bankruptcy courts, and the adjustment of that debtor-creditor relationship is a core proceeding.25 As Bankruptcy Judge Ashland points out in dissent in Pacana v. Pacana-Siler (In re Pacana),26 the Bankruptcy Code contemplates that Chapter 13 plans will deal with alimony and child support claims and that confirmation of a Chapter 13 plan will bind the holder of a claim for alimony or support.27

[10]

The automatic stay prohibits collection of alimony or support after the filing of a Chapter 13 petition. A Chapter 13 debtor should be given an opportunity to confirm a plan that manages child support or alimony consistent with the confirmation provisions of §§ 1322 and 1325. Avoiding the messiness that sometimes accompanies a Chapter 13 case in which there are significant claims for alimony or child support is not justification for ignoring the plain language of the Code. If a Chapter 13 debtor is not paying alimony or child support through the plan, cause for relief from the stay under § 362(d)(1) will be easily demonstrated.28 Too many courts loosely describe the rights of alimony or support claim holders in Chapter 13 cases as if relief from the stay were automatic. The Code contemplates that alimony and child support claim holders will collect their claims through the plan with other creditors. Especially after the 1994 amendments, relief from the stay prior to confirmation to permit collection of alimony or child support should not be routinely granted.29 Instead, Chapter 13 debtors should work quickly to confirm plans that cure all support arrearages and that keep the debtor current on all ongoing domestic obligations during the Chapter 13 case.

[11]

In another respect the Bankruptcy Code’s treatment of the automatic stay and of alimony and support is inartful and creates complications in Chapter 13 cases. There is an exception in § 502(b)(5) to the allowance of claims for “a debt that is unmatured on the date of the filing of the petition and that is excepted from discharge under section 523(a)(5).”30 In Chapter 7 cases, § 502(b)(5) has the more or less salutary effect of prohibiting alimony and support creditors with nondischargeable claims from sharing with prepetition creditors in distributions of estate property except with respect to the portion of their claims that was matured at the petition. But in a Chapter 7 case, the exception to the automatic stay in § 362(b)(2)(B), discussed immediately above, empowers an alimony or support creditor with a disallowed, nondischargeable claim to collect from postpetition earnings and postpetition property that is not property of the Chapter 7 estate without violating the stay.

[12]

In a Chapter 13 case, § 502(b)(5) disallows the alimony or support creditor’s claim for postpetition payments that mature during the Chapter 13 case, but because of the expanded definition of property of the estate in § 1306, the alimony or support creditor is not free of the stay and cannot collect those maturing payments without court permission.

[13]

This looks like an unfair trap for the alimony or support creditor in a Chapter 13 case, but it is in everyone’s interest to resolve the apparent imbalance through the debtor’s plan. Notwithstanding § 502(b)(5), Chapter 13 debtors with continuing alimony or support obligations routinely pay the maturing postpetition installments through the plan or as an expense item in the budget.31 If they don’t, the automatic stay will be a brittle defense to the inevitable motion for stay relief from the ex-spouse who is not receiving postpetition payments from the debtor. One reported decision recognizes that the automatic stay prohibits the collection of interest on support arrearages during a Chapter 13 case, but the debtor is required to create a mechanism through the plan to permit the support creditor to collect postpetition interest during the Chapter 13 case.32


 

1  11 U.S.C. § 362(b)(2) (before amendment in 1994).

 

2  11 U.S.C. § 362(b)(2)(A), as amended by Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304(b), 108 Stat. 4106 (1994).

 

3  Allen v. Allen, 275 F.3d 1160 (9th Cir. 2002) (Because modification of spousal support falls within exception to stay in § 362(b)(2)(A)(ii), ex-spouse need not show cause for relief from the stay but is simply free to proceed in state court.).

 

4  See below in this section and §§ 45.1 [ What Is Property of the Chapter 13 Estate? ] § 46.1  What Is Property of the Chapter 13 Estate? and 46.1 [ Postpetition Earnings ] § 46.3  Postpetition Earnings.

 

5  See, e.g., In re Bamman, 239 B.R. 560, 563 (Bankr. W.D. Mo. 1999) (“The automatic stay is hereby modified so that the Circuit Court of Jackson County can determine the issues pertaining to the marital dissolution of Michael and Karen Bamman, including the actual dissolution of the marriage of Karen Bamman and Debtor Michael Wayne Bamman; the determination as to whether either party is entitled to maintenance or support and the amount thereof; the characterization of the Bammans’ property and debts as separate or joint; and any other issues pertaining to the dissolution of their marriage. The Circuit Court may make an award of property to the individual parties; however, such an award may not be distributed or effectuated until after the joint property has been administered through this bankruptcy estate according to bankruptcy law. This Court specifically retains jurisdiction to determine the issues as to distribution and treatment of any of Michael Bamman’s separate property as well as any property which the Circuit Court determines to be jointly owned at this time. In other words, because this Court must determine which creditors are to be paid from the joint property under Eighth Circuit precedent, it must be understood that any award of property which is currently owned jointly by the Bammans cannot be delivered or transferred to either of them individually until after the property has been administered through Michael Bamman’s bankruptcy estate pursuant to Eighth Circuit bankruptcy law.”).

 

6  11 U.S.C. § 362(b)(2)(A)(ii), as amended by Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304(b), 108 Stat. 4106 (1994).

 

7  140 Cong. Rec. H10,770 (section-by-section analysis by Congressman Brooks).

 

8  11 U.S.C. § 362(b)(2)(B), as amended by Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304(b), 108 Stat. 4106 (1994) (emphasis added). The wording of § 362(b)(2)(B) as amended in 1994 is identical to § 362(b)(2) prior to the 1994 amendments.

 

9  See § 46.1 [ Postpetition Earnings ] § 46.3  Postpetition Earnings. The effect of confirmation on property of the Chapter 13 estate and on the collection of alimony, maintenance and support in a Chapter 13 case is discussed in § 246.1 [ Alimony and Support Collection after Confirmation ] § 124.6  Alimony and Support Collection after Confirmation.

 

10  The exception to the stay now in § 362(b)(2)(B) for the collection of alimony, maintenance or support from property that is not property of the estate is also limited to debts owed to a spouse, former spouse or child of the debtor. See, e.g., In re Virden, 279 B.R. 401 (Bankr. D. Mass. 2002) (Judgment for withholding but not remitting support from wages earned by an employee of the debtor is not payable to a spouse, former spouse or child of the debtor for purposes of the exception to the automatic stay in § 362(b)(2)(B).).

 

11  Carver v. Carver (In re Carver), 954 F.2d 1573 (11th Cir. 1992) (Automatic stay precluded ex-wife’s contempt action in state court, notwithstanding the exception in § 362(b)(2) [redesignated as 11 U.S.C. § 362(b)(2)(B) by the Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304(b), 108 Stat. 4106 (1994)] because in a Chapter 13 case, the bankruptcy estate includes the debtor’s property and wages acquired after commencement of the case. Ex-spouse should have filed a request for relief from the stay under § 362(d) before proceeding in state court.); Colon v. Rivera (In re Colon), 265 B.R. 639, 643 (B.A.P. 1st Cir. 2001) (Former spouse violated automatic stay by continuing to collect support after the Chapter 13 petition; bankruptcy court abused its discretion by granting retroactive relief from the stay. “The bankruptcy court properly rejected Rivera’s argument that her repeated post-petition efforts to collect divorce-related obligations were excepted from the automatic stay by § 362(b)(2)(B). . . . . Rivera’s . . . actions to collect the [support] obligations from Colon’s liquidated retirement funds and his post-petition earnings necessarily involved pursuit of estate property since the Chapter 13 estate includes not only pre-petition assets, but the property and earnings acquired and earned post-petition as well.”); In re Steenstra, 280 B.R. 560, 567 (Bankr. D. Mass. 2002) (Massachusetts Department of Revenue violated automatic stay by sending the debtor’s employer a wage assignment and issuing a warrant that led to the debtor’s arrest; exception in § 362(b)(2) did not apply. “[Section] 362(b)(2) . . . would have merit were the Debtor in a Chapter 7 case where postpetition earnings are excluded from estate property. . . . However, the exemption does not apply where the Debtor is in Chapter 13.”); In re Price, 179 B.R. 209, 211–12 (Bankr. E.D. Cal. 1995) (Distinguishing Pacana v. Pacana-Siler (In re Pacana), 125 B.R. 19 (B.A.P. 9th Cir. 1991), district attorney violated automatic stay by continuing wage assignment for collection of child support arrearages after notice of Chapter 13 case in which confirmed plan called for 100% payment of child support arrearages. “Since the § 362(b)(2) [redesignated as § 362(b)(2)(B) by the Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304(b), 108 Stat. 4106 (1994)] exception only allows for collection from non-estate property, Creditor could not claim this exception from the stay for wages garnished prior to plan confirmation. . . . Creditor has willfully violated the automatic stay by accepting payments from its wage assignment order after receiving notice of Debtors’ bankruptcy.”); Debolt v. Comerica Bank (In re Debolt), 177 B.R. 31, 40 (Bankr. W.D. Pa. 1994) (Trustee of ERISA-qualified pension plan did not violate the automatic stay by paying to the debtor’s ex-spouse benefits awarded in a prepetition divorce decree. However, pension trustee did violate the automatic stay by paying continuing support from the portion of the pension plan that remained property of the debtor and became property of the Chapter 13 estate. Pension trustee committed a willful violation because it was notified of the bankruptcy case but continued to make support payments from the debtor’s portion of the pension fund. “Nonetheless, we will not award punitive damages on this occasion. Despite the technical violation of the stay, we find no evidence on this record of injury or actual damage to Debtor inasmuch as the support obligation is nondischargeable and Debtor is in no position different from that he would have been in absent bankruptcy.”); Rogers v. Overstreet (In re Rogers), 164 B.R. 382, 387 (Bankr. N.D. Ga. 1994) (“[T]he § 362(b)(2) [redesignated as § 362(b)(2)(B) by the Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304(b), 108 Stat. 4106 (1994),] exception has little application in Chapter 13 cases since the term ‘property of the estate’ includes earnings of the debtor acquired after the commencement of the bankruptcy case.” Collection of prepetition support from the portion of the debtor’s income that is not committed to funding the plan did not violate the automatic stay, and neither did state court incarceration of the debtor for nonpayment of support.); Pidgeon v. Pidgeon (In re Pidgeon), 155 B.R. 24 (Bankr. D.N.H. 1993) (Because the Chapter 13 estate includes the future income and property of the debtor, the alimony, maintenance or support exception to the automatic stay does not relieve an estranged spouse of the obligation to seek relief from the stay before proceeding with an effort to collect temporary alimony, maintenance, or support in a state court.); In re Walter, 153 B.R. 38, 40 (Bankr. N.D. Ohio 1993) (“Section 1306 provides that all income earned during the course of a Chapter 13 case is also property of the bankruptcy estate. It does not appear that there is any non-estate property to which § 362(b)(2) [redesignated as § 362(b)(2)(B) by the Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304(b), 108 Stat. 4106 (1994)] would apply in the present case.”); Farmer v. Cole (In re Farmer), 150 B.R. 68 (Bankr. N.D. Ala. 1991) (If proved, allegations that former spouse and state court judge intend to incarcerate the debtor unless the debtor pays arrearages in alimony and support would constitute a violation of the automatic stay because the expanded definition of property of the estate in a Chapter 13 case in § 1306(a) overcomes the exception to the automatic stay in § 362(b)(2) [redesignated as § 362(b)(2)(B) by the Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304(b), 108 Stat. 4106 (1994),] in Chapter 13 cases. Any effort to enforce a prepetition child support or alimony award against property of the Chapter 13 estate would not be excepted from the automatic stay because the resources for complying with any state court order to pay the arrearages would be property of the expanded Chapter 13 estate.); In re Suarez, 149 B.R. 193, 196 (Bankr. D.N.M. 1993) (Garnishment of a Chapter 13 debtor’s postpetition wages to collect a prepetition alimony award is a violation of the automatic stay. It is “immaterial” that the order of garnishment was issued by the state court prior to the filing of the Chapter 13 petition. The ex-spouse’s motion to amend the garnishment order filed in the state court after notice of bankruptcy was a willful violation of the automatic stay for purposes of § 362(h). “Any affirmative step to proceed with a garnishment is a willful violation of the automatic stay. . . . Whether a party believes in good faith that it had a right to the property is not relevant to whether the act was ‘willful’ or whether compensation must be awarded. . . . Here, Gladys Suarez continued to pursue garnishment despite having notice that the Debtor had filed bankruptcy. . . . Gladys acted knowingly, and, therefore, willfully.” Ex-spouse is ordered to return the wages garnished postpetition and ordered to pay the debtor’s reasonable attorneys’ fees.); Heflin v. Heflin (In re Heflin), 145 B.R. 560 (Bankr. S.D. Ohio 1992) (Garnishment of Chapter 13 debtor’s wages to satisfy support order was violation of stay because debtor’s postpetition wages are property of the estate under § 1306.); Gaertner v. Choske (In re Henry), 143 B.R. 811 (Bankr. W.D. Pa. 1992) (Section 1306 expands the definition of property of the estate to include postpetition earnings by the debtor. Continuation of prepetition wage attachment order to collect child support arrearages violates the automatic stay.); In re Becker, 136 B.R. 113 (Bankr. D.N.J. 1992) (In dicta, § 1306(a)(2) includes in property of the estate a debtor’s postpetition earnings in a Chapter 13 case; therefore, the automatic stay “does enjoin proceedings to collect alimony, maintenance or support from a Chapter 13 debtor, and relief from the automatic stay must be obtained in such cases before such collection actions can proceed.”); In re Raboin, 135 B.R. 682, 684 (Bankr. D. Kan. 1991) (Garnishment order for child support arrearage is excepted from the automatic stay only to the extent that collection is sought from property that is “not property of the estate.” In a Chapter 13 case, § 1306(a)(2) makes earnings from services performed during the pendency of the case property of the estate notwithstanding § 541(a)(6). “Therefore, the debtors’ earnings are property of the estate . . . . § 362(b)(2) [redesignated as 11 U.S.C. § 362(b)(2)(B) by the Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304(b), 108 Stat. 4106 (1994)] would not except the garnishment order from the stay.”); McCray v. McCray, 62 B.R. 11 (Bankr. D. Colo. 1986) (Because postpetition wages are property of the estate and are subject to the automatic stay, the stay precludes an action to collect child support prior to confirmation. However, former spouse may be entitled to relief from the stay because support matters are properly reserved to the state courts.); Denn v. Aarestad, 37 B.R. 33 (Bankr. D. Minn. 1983) (Prior to confirmation, a Chapter 13 debtor’s postpetition earnings are protected by the automatic stay and cannot be reached without court permission for collection of delinquent child support.); In re Lanham, 13 B.R. 45 (Bankr. C.D. Ill. 1981) (The expanded definition of property of the estate in § 1306 essentially precludes a former spouse from collecting support other than from non-estate property.). See In re Daugherty, 117 B.R. 515, 518 (Bankr. D. Neb. 1990) (In dicta in a Chapter 7 case, the court stated that “in a Chapter 13 . . . case, the automatic stay prohibits enforcement or collection of obligations of the debtor for alimony, maintenance, or support from property of the estate, including wages earned by the debtor before confirmation.”).

 

12  See § 78.1 [ Remedies for Violation of Stay ] § 62.5  Remedies for Violation of Stay. See, e.g., Barnett v. Edwards (In re Edwards), 214 B.R. 613 (B.A.P. 9th Cir. 1997) (Postpetition recording of lis pendens with full knowledge of Chapter 13 case was willful violation of stay; bankruptcy court appropriately awarded sanctions against ex-spouse and ex-spouse’s counsel.); In re Suarez, 149 B.R. 193 (Bankr. D.N.M. 1993) (Garnishment of a Chapter 13 debtor’s postpetition wages to collect a prepetition alimony award is a knowing and willful violation of the automatic stay; ex-spouse is ordered to return the wages garnished and to pay the debtor’s attorneys’ fees.).

 

13  Combs v. Combs, 34 B.R. 597 (Bankr. S.D. Ohio 1983).

 

14  Carver v. Carver (In re Carver), 954 F.2d 1573, 1578–80 (11th Cir. 1992) (Although automatic stay was applicable notwithstanding the exception in § 362(b)(2) [redesignated as § 362(b)(2)(B) by the Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304(b), 108 Stat. 4106 (1994),] because the Chapter 13 estate includes property and wages acquired after commencement of the case, and notwithstanding that ex-spouse should have filed a request for relief from the stay before filing contempt action in state court against the debtor, “[w]hen requested, [relief from the stay] should be liberally granted in situations involving alimony, maintenance or support in order to avoid entangling the federal court in family law matters best left to state court. . . . In our opinion, bankruptcy and district courts should tread very carefully when asked to impose sanctions for violation of the automatic stay where the actions underlying the violation involve alimony, maintenance, or support. In each case, the court should carefully sift through the facts, keeping in mind the purposes of the automatic stay provision as well as concerns of justice, comity, and judicial economy that support abstention in domestic relations cases. . . . [U]nder these circumstances the bankruptcy court should have abstained from consideration of [the debtor’s] claim for damages for violation of the automatic stay.”); James v. Moore (In re James), 150 B.R. 479, 485 (Bankr. M.D. Ga. 1993) (Debtor’s ex-spouse and her lawyer violated the automatic stay by attempting to collect support arrearages in state court after they knew that the debtor had filed a Chapter 13 case, but neither contempt nor damages are warranted. Citing Carver, “[t]he Court is not persuaded, however, that the violations were willful.” The ex-spouse’s lawyer “believed the superior court could determine the dischargeability issue” even though the ex-spouse had not requested or received relief from the stay. The ex-spouse’s lawyer tried the issue of dischargeability in state court with full knowledge of the bankruptcy filing and notwithstanding a “plea for stay on account of bankruptcy” filed by the debtor’s lawyer. The ex-spouse’s attorney “did not pursue the contempt action” after receiving a copy of a letter from the bankruptcy judge to the state superior court stating that the actions of the ex-spouse “may have been in violation of the automatic stay.”); Heflin v. Heflin (In re Heflin), 145 B.R. 560 (Bankr. S.D. Ohio 1992) (Although garnishment of debtor’s wages to satisfy a postpetition support order was violation of the automatic stay because the debtor’s postpetition wages were property of the estate under § 1306, court declines to sanction ex-spouse for violation of the stay or to set aside the garnishment because ex-spouse would have been granted relief from the stay to collect support had she asked before acting.). See also In re Price, 179 B.R. 209 (Bankr. E.D. Cal. 1995) (Although district attorney violated automatic stay by continuing wage assignment for the collection of child support arrearages after notice of Chapter 13 case in which confirmed plan called for 100% payment of child support arrearages, because the district attorney did not file a proof of claim, sovereign immunity precluded monetary damages. Declaratory and injunctive relief were allowed, including an order that the district attorney cease accepting payments pursuant to its prepetition wage assignment. Permitting the district attorney to retain the funds already collected was not prejudicial to the debtor or the bankruptcy estate because the plan called for full payment of child support arrearages, and the claim was nondischargeable and continuing to accrue interest.).

 

15  McCray v. McCray, 62 B.R. 11 (Bankr. D. Colo. 1986). See Pacana v. Pacana-Siler (In re Pacana), 125 B.R. 19, 22 (B.A.P. 9th Cir. 1991) (“[Section] 362(b)(2) [redesignated as § 362(b)(2)(B) by the Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304(b), 108 Stat. 4106 (1994),] . . . §§ 1328(a)(2) and 523(a)(5) . . . manifest a legislative intent that child support obligations be excepted from the broad reach of §§ 1322 and 1327, and therefore from the effects of a Chapter 13 plan, as well as the post-confirmation automatic stay.”).

 

16  Caswell v. Lang, 757 F.2d 608 (4th Cir. 1985). See § 303.1 [ Alimony, Maintenance and Support in Cases Filed before October 22, 1994 ] § 138.1  Alimony, Maintenance and Support in Cases Filed before October 22, 1994.

 

17  See Rogers v. Overstreet (In re Rogers), 164 B.R. 382, 391 (Bankr. N.D. Ga. 1994) (Chapter 13 petition filed on the day the debtor was to be incarcerated for failing to pay child support was filed in bad faith where its only purpose was to avoid the domestic relations obligations. The automatic stay was not violated when the debtor was incarcerated later in the day, because incarceration “was an act of the state court trying to enforce its judgment, and it was not an act of the [debtor’s ex-spouse]. As such, the [ex-spouse] did not violate the stay when the Debtor was placed in jail.” Ex-spouse was under no duty to prevent the state court from carrying out its prepetition order that the debtor would be incarcerated if the debtor did not bring child support current.); In re Mann, 88 B.R. 427, 430 (Bankr. S.D. Fla. 1988) (Emergency enforcement of stay to stop a contempt proceeding against the debtor for failure to pay alimony and child support denied. “Movant has not made it appear that [§ 362(b)(2)(B), as redesignated by the Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304(b), 108 Stat. 4106 (1994),] is inapplicable.”); Williams v. Florida, 72 B.R. 508 (Bankr. M.D. Fla. 1987) (Postpetition arrest and incarceration of debtor for failure to make child support payments is excepted from operation of the automatic stay by § 362(b)(2) [redesignated as § 362(b)(2)(B) by the Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 304(b), 108 Stat. 4106 (1994)].). See Carver v. Carver (In re Carver), 954 F.2d 1573, 1580 (11th Cir. 1992) (Reverses award of damages for willful violation of the stay by debtor’s ex-wife when ex-wife filed contempt action in state court because debtor had failed to pay mortgage on marital home. Ex-wife went ahead with contempt proceeding in state court, and debtor was imprisoned. “[U]nder these circumstances, the bankruptcy court should have abstained from consideration of [the debtor’s] claim for damages for violation of the automatic stay.”). But see Gruntz v. County of L.A. (In re Gruntz), 166 F.3d 1020 (9th Cir.), amended by 177 F.3d 728 (9th Cir.), withdrawn and reh’g granted, 177 F.3d 729 (9th Cir. 1999), after reh’g, 202 F.3d 1074 (9th Cir. 2000) (Because criminal action for nonsupport may have been a debt collection proceeding, state court ruling that exception to automatic stay applied was not binding on bankruptcy court.).

 

18  In re Perry, 131 B.R. 763, 770 (Bankr. D. Mass. 1991) (It is appropriate to grant relief from the stay to permit Massachusetts state court to determine property rights and alimony rights of nondebtor spouse, notwithstanding overlapping jurisdiction of bankruptcy court and state domestic relations court. Nondebtor spouse’s contingent rights under Massachusetts law are not dischargeable in debtor’s Chapter 13 case and do not constitute claims; however, state court has particular expertise to fix alimony, and it cannot do so without also considering what portion, if any, of the debtor’s property is to be transferred to the nondebtor spouse. “[B]ecause of the holistic nature of the task,” the state domestic relations court should adjudicate property rights as well as entitlement to periodic alimony and child support payments.). Accord Pidgeon v. Pidgeon (In re Pidgeon), 155 B.R. 24, 26–27 (Bankr. D.N.H. 1993) (“A chapter 13 plan may not be confirmed until the Court determines that all of the debtor’s disposable future income has been subjected to the control of the chapter 13 trustee. . . . The above determination requires knowing what a chapter 13 debtor’s actual expenses are. However, given the pending divorce proceeding and the related bankruptcy question of whether any obligations are dischargeable under 11 U.S.C. § 523(a)(5), this debtor’s actual expenses cannot be determined until some court, either the marital court or this Court, determines such issues between the debtor and his estranged wife. . . . What the Court has before it then is a case of potential judicial gridlock. To break the gridlock, . . . the Court will grant the motion for relief. . . . [S]tate courts have concurrent jurisdiction with bankruptcy courts to make the 523(a)(5) dischargeability determination. . . . This result also conforms with the Supreme Court’s observation nearly a century and a half ago that where at all possible, a federal court should abstain or avoid interfering with the determinations of family law matters by the appropriate state courts.”).

 

19  In re Gomez Molina, 77 B.R. 368 (Bankr. D.P.R. 1987).

 

20  See §§ 99.1 [ What Claims Are Priority Claims? ] § 73.2  What Claims Are Priority Claims?, 152.2 [ Alimony, Maintenance and Support ] § 88.4  Alimony, Maintenance and Support, 301.1 [ Alimony, Maintenance and Support in Cases Filed after October 22, 1994 ] § 136.20  Alimony, Maintenance and Support in Cases Filed after October 22, 1994 and 303.1 [ Alimony, Maintenance and Support in Cases Filed before October 22, 1994 ] § 138.1  Alimony, Maintenance and Support in Cases Filed before October 22, 1994.

 

21  See § 216.1 [ Timing of Hearing on Confirmation ] § 115.1  Timing of Hearing on Confirmation before BAPCPA.

 

22  See § 239.1 [ What to Do If Creditor Is Not Receiving Payments ] § 123.1  What to Do If Creditor Is Not Receiving Payments.

 

23  504 U.S. 689, 112 S. Ct. 2206, 119 L. Ed. 2d 468 (1992).

 

24  See In re Bunn, 170 B.R. 670, 673–74 (Bankr. D. Minn. 1994) (Citing Ankenbrandt v. Richards, 504 U.S. 689, 112 S. Ct. 2206, 119 L. Ed. 2d 468 (1992), and critical of Caswell v. Lang, 757 F.2d 608 (4th Cir. 1985), “[i]n the present case, I am neither issuing nor altering a child support decree. I am merely deciding how a creditor seeking to collect past-due child support should be treated in a chapter 13 proceeding. . . . Congress intended child support claims to be dealt with in bankruptcy cases. . . . This does not mean, however, that relief from the stay is never an appropriate remedy for creditors holding child support claims. One such instance is when the debtor uses chapter 13 as a method of avoiding child support responsibilities instead of earnestly trying to repay the debt.” County is entitled to relief from the stay for cause where the debtor does not propose to pay child support arrearages in full, the debtor failed to list the child support debt and the plan is part of a continuing effort to avoid paying child support.); In re Walter, 153 B.R. 38, 39–40 (Bankr. N.D. Ohio 1993) (Rejecting Caswell v. Lang, 757 F.2d 608 (4th Cir. 1985), and Pacana v. Pacana-Siler (In re Pacana), 125 B.R. 19 (B.A.P. 9th Cir. 1991), court denies relief from the stay to county child support enforcement agency where Chapter 13 plan proposes to pay prepetition child support arrearages in full through the plan and the debtor’s ongoing current obligation to pay child support is fully satisfied by a direct payroll deduction. “This Court finds instructive the Supreme Court’s view in Ankenbrandt v. Richards [, 504 U.S. 689, 112 S. Ct. 2206, 119 L. Ed. 2d 468 (1992),] that ‘the domestic relations exception [to federal courts’ jurisdiction] encompasses only cases involving the issuance of a divorce, alimony, or child custody decree. . . .’ . . . [A]bsent a showing that the current needs of the payee are unmet, a plan providing for a one hundred percent (100%) payment of arrearages over the life of a Chapter 13 case is acceptable. This Court declines to follow Pacana to the extent that it imposes a per se prohibition against such plans.”). But see In re Arnal, No. 03-40429, 2003 WL 21911212, at *3–*4 (Bankr. S.D. Ga. June 10, 2003) (unpublished) (Broad domestic relations exception articulated in Carver v. Carver, 954 F.2d 1573 (11th Cir. 1992), survived Ankenbrandt v. Richards, 504 U.S. 689, 112 S. Ct. 2206, 119 L. Ed. 2d 468 (1992); ex-spouse is granted relief from the stay to enforce support orders in state court. “The decision in Ankenbrandt by no means alters this Court’s policy of not becoming intertwined in domestic relation matters . . . . ‘Ankenbrandt does not involve bankruptcy.’ . . . Carver is still good law and has not been limited. . . . Debtor is asking this Court to stay an action in a state court of South Carolina for the enforcement of a child support order. Granting Debtor’s request creates the possibility in the future that former spouses will seek to play one court system off against the other. Debtor has defaulted on numerous occasions in his obligations to Fraser. He has been cited for contempt on several occasions. He clearly filed this case solely as a last resort to thwart the exercise of jurisdiction over him by the South Carolina domestic court. Further, South Carolina has a significantly strong interest in enforcing the terms of the Amended Final Order and is uniquely qualified to settle the dispute. Because the rationale justifying the domestic relations exception to federal jurisdiction exist[s] in this situation, it is appropriate to grant Fraser relief from stay.”); Rogers v. Overstreet (In re Rogers), 164 B.R. 382 (Bankr. N.D. Ga. 1994) (Ankenbrandt v. Richards, 504 U.S. 689, 112 S. Ct. 2206, 119 L. Ed. 2d 468 (1992), did not overrule the Eleventh Circuit’s decision in Carver v. Carver, 954 F.2d 1573 (11th Cir. 1992). Automatic stay not implicated where debtor was incarcerated on the day of the Chapter 13 filing for failure to pay child support. Ex-spouse did not violate the automatic stay because incarceration was an act of the state court, not an act of the debtor’s ex-spouse, and ex-spouse was under no duty to prevent the state court from carrying out a prepetition order that the debtor be incarcerated.); Pidgeon v. Pidgeon (In re Pidgeon), 155 B.R. 24, 27 (Bankr. D.N.H. 1993) (Without analysis of Ankenbrandt v. Richards, 504 U.S. 689, 112 S. Ct. 2206, 119 L. Ed. 2d 468 (1992), “the Supreme Court’s observation nearly a century and a half ago that where at all possible, a federal court should abstain or avoid interfering with the determinations of family law matters by the appropriate state courts” supports granting relief from the stay to allow an ex-spouse to litigate the extent and dischargeability of alimony, maintenance or support obligation of the debtor to his estranged wife.).

 

25  Lawson v. Lackey (In re Lackey), 148 B.R. 626 (Bankr. N.D. Ala. 1992).

 

26  125 B.R. 19 (B.A.P. 9th Cir. 1991).

 

27  See §§ 301.1 [ Alimony, Maintenance and Support in Cases Filed after October 22, 1994 ] § 136.20  Alimony, Maintenance and Support in Cases Filed after October 22, 1994 and 303.1 [ Alimony, Maintenance and Support in Cases Filed before October 22, 1994 ] § 138.1  Alimony, Maintenance and Support in Cases Filed before October 22, 1994.

 

28  See In re Bunn, 170 B.R. 670, 673–75 (Bankr. D. Minn. 1994) (County is entitled to relief from the stay for cause under § 362(d)(1) where plan does not propose to pay child support arrearages in full, the debtor failed to list the child support debt, and the plan is part of a continuing effort to avoid paying child support. Citing Ankenbrandt v. Richards, 504 U.S. 689, 112 S. Ct. 2206, 119 L. Ed. 2d 468 (1992), and critical of Caswell v. Lang, 757 F.2d 608 (4th Cir. 1985), “[i]n the present case, I am neither issuing nor altering a child support decree. I am merely deciding how a creditor seeking to collect past-due child support should be treated in a chapter 13 proceeding. . . . Congress intended child support claims to be dealt with in bankruptcy cases. . . . This does not mean, however, that relief from the stay is never an appropriate remedy for creditors holding child support claims. One such instance is when the debtor uses chapter 13 as a method of avoiding child support responsibilities instead of earnestly trying to repay the debt. . . . [I]f the plan were to provide for full payment of the child support debt, relief from the stay would not be appropriate. Another indicia of good faith would be the placement of the debt in a separate class to be paid after the priority debts but before other unsecured debts. . . . The Eighth Circuit has implicitly endorsed this view. [Mickelson v. Leser (In re Leser), 939 F.2d 669 (8th Cir. 1991),]. . . . If a debtor does not propose a plan that separately classifies the child support arrearage, it may be inferred that the debtor proposes the plan in bad faith for the purpose of circumventing child support obligations. As such, the ex-spouse should be entitled to relief from the stay.”). See also Berg v. Barth (In re Berg), 186 B.R. 479 (B.A.P. 9th Cir. 1995) (Debtor who appeared to have filed Chapter 13 to avoid paying support is not entitled to a temporary restraining order to stop state court collection of support after relief from the stay was granted to former spouse.).

 

29  See Mudd v. Jacobson (In re Jacobson), 231 B.R. 763, 765 (Bankr. D. Ariz. 1999) (Congress intended for Chapter 13 plans to manage child support arrearages as nondischargeable, priority claims; relief from the stay should be the exception rather than the rule. “Reading [§§ 507(a)(7), 1322(a)(2) and 1328] together, the conclusion is undeniable that Congress intended in 1994 to change the law such that maintenance and support obligations not only may, but must, be treated specially and paid in full under a Chapter 13 plan. This conclusion undercuts the fundamental reasoning of [Pacana v. Pacana-Siler (In re Pacana), 125 B.R. 19 (B.A.P. 9th Cir. 1991),]. . . . Given this state of the law, this Court concludes that granting relief from stay in a Chapter 13 case in order to allow enforcement of those obligations in a state court should now be the exception rather than the rule.”).

 

30  11 U.S.C. § 502(b)(5). See §§ 301.1 [ Alimony, Maintenance and Support in Cases Filed after October 22, 1994 ] § 136.20  Alimony, Maintenance and Support in Cases Filed after October 22, 1994 and 303.1 [ Alimony, Maintenance and Support in Cases Filed before October 22, 1994 ] § 138.1  Alimony, Maintenance and Support in Cases Filed before October 22, 1994.

 

31  See §§ 35.10 [ Schedules I and J—Income and Expenditures ] § 36.16  Schedules I and J—Income and Expenditures, 98.1 [ Plan Must Provide Full Payment ] § 73.1  Plan Must Provide Full Payment, 99.1 [ What Claims Are Priority Claims? ] § 73.2  What Claims Are Priority Claims?, 152.2 [ Alimony, Maintenance and Support ] § 88.4  Alimony, Maintenance and Support, 171.1 [ Curing Default and Maintaining Payments on Unsecured Debt ] § 101.4  Curing Default and Maintaining Payments on Unsecured Debt, 301.1 [ Alimony, Maintenance and Support in Cases Filed after October 22, 1994 ] § 136.20  Alimony, Maintenance and Support in Cases Filed after October 22, 1994 and 303.1 [ Alimony, Maintenance and Support in Cases Filed before October 22, 1994 ] § 138.1  Alimony, Maintenance and Support in Cases Filed before October 22, 1994.

 

32  Mudd v. Jacobson (In re Jacobson), 231 B.R. 763, 765–67 (Bankr. D. Ariz. 1999) (Plan must permit ex-spouse to collect postpetition interest after confirmation. “Under the Movant’s state court judgment, and in accordance with state law, the Movant is entitled to interest on the unpaid child support arrearages. . . . [Section] 1322(a)(2) . . . does not say that the deferred cash payments must have a present value equal to the amount of the claim . . . . [T]he proscription against ‘unmatured’ interest of 11 U.S.C. § 502(b)(2) would mean that interest should not be paid from the estate. However, 11 U.S.C. § 1328(a)(2) makes clear that support and maintenance claims are not dischargeable in a Chapter 13 . . . . [T]here is the following conundrum; although the interest is not dischargeable under 11 U.S.C. § 1328(a)(2), is it nevertheless not payable through the plan under 11 U.S.C. § 502(b)(2) . . . . [R]equiring the Movant to wait until after the completion of 5 years of plan payments before she can then go back to state court to receive interest would, in this Court’s view, not adequately protect her rights. Therefore, in order for the stay not to be terminated, a mechanism must be provided by the Debtor for the current payment of the interest during the course of the Chapter 13. The Debtor’s current plan provides that, contrary to the ordinary workings of § 1327(b), the property of the estate upon confirmation will not revest in the Debtor but [will] remain with the estate. While a Chapter 13 plan and confirmation order may do this, the impact is to prevent a support creditor, such as the Movant, from enforcing her rights of collection in state court. Therefore, for the stay to remain in place, the plan needs to be modified such that the portion of the Debtor’s income that is necessary to pay the ongoing interest cost revests in the Debtor and is subject to collection by the Movant in the state courts. While this is a cumbersome procedure, it is necessary in order to protect Movant’s rights to post-petition interest.”). See also § 301.1 [ Alimony, Maintenance and Support in Cases Filed after October 22, 1994 ] § 136.20  Alimony, Maintenance and Support in Cases Filed after October 22, 1994.