FILED
AUG 12 2013
1
SUSAN M SPRAUL, CLERK
U.S. BKCY. APP. PANEL
2 OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. NC-12-1425-JuTaPa
)
6 ADALBERTO PEREZ JIMENEZ, ) Bk. No. 12-42231-WJL
)
7 Debtor. )
______________________________)
8 OLIVIA PEREZ, )
)
9 Appellant, )
)
10 v. ) M E M O R A N D U M*
)
11 ADALBERTO PEREZ JIMENEZ, )
)
12 Appellee. )
)
13 ______________________________)
14 Submitted Without Oral Argument on July 25, 2013
15 Filed - August 12, 2013
16 Appeal from the United States Bankruptcy Court
for the Northern District of California
17
Honorable William J. Lafferty, Bankruptcy Judge, Presiding
18 _______________________
19 Appearances: Appellant Olivia Perez pro se on brief; Peter
Christopher Pappas, Esq., on brief for appellee
20 Adalberto Perez Jimenez.
_________________________
21
Before: JURY, TAYLOR, and PAPPAS, Bankruptcy Judges.
22
23
24
25
26 *
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8013-1.
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1 Appellant, Olivia Perez, filed a proof of claim (POC) in
2 the chapter 131 case of her former husband, Adalberto Perez
3 Jimenez (Adalberto or debtor). Olivia’s POC asserted a domestic
4 support obligation for $245,000 entitled to priority under
5 § 507(a)(1)(A). Debtor objected to her claim on the ground that
6 it represented an equalizing payment rather than a claim for
7 support. The bankruptcy court sustained debtor’s objection,
8 finding that Olivia’s claim was a general unsecured claim. This
9 appeal followed. We AFFIRM.
10 I. FACTS
11 Adalberto was married to Olivia for approximately ten
12 years. In December 2012, they divorced and entered into a
13 martial settlement agreement (MSA). Both parties were
14 represented by counsel. Under the MSA, each party gave up the
15 right to receive spousal support from the other. The MSA also
16 contained an equalizing payment of $245,000 whereby Adalberto
17 would pay Olivia that amount by making monthly payments ranging
18 from $750 to $1,300 until the amount was paid. Adalberto made
19 some payments under the agreement.
20 On March 12, 2012, Adalberto filed his chapter 13 petition.
21 He listed Olivia on Schedule E as a creditor holding a domestic
22 support obligation and asserted that he was current on the
23 payments.
24 Debtor’s chapter 13 plan was a stepped-up five-year plan
25
26 1
Unless otherwise indicated, all chapter and section
27 references are to the Bankruptcy Code,
11 U.S.C. §§ 101-1532 and
“Rule” references are to the Federal Rules of Bankruptcy
28 Procedure.
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1 with a 4% dividend to general unsecured claims. It also paid
2 priority claimants under § 507 in full. The chapter 13 trustee
3 objected to debtor’s plan because he could not complete it
4 within sixty months if Olivia’s $245,000 claim was entitled to
5 priority.2
6 Debtor then objected to Olivia’s POC on the grounds that it
7 failed to take into consideration the amounts he had paid and
8 that the MSA made clear that (1) no spousal support payments
9 were due and (2) the $245,000 amount was an equalizing payment.
10 In response, Olivia argued that although the MSA indicated there
11 were no further spousal obligations, that provision was not
12 determinative on the issue under the holding in Friedkin v.
13 Sternberg (In re Sternberg),
85 F.3d 1400 (9th Cir. 1996),
14 overruled on other grounds by Murray v. Bammer (In re Bammer),
15
131 F.3d 788, 792 (9th Cir. 1997) (en banc). Olivia also
16 submitted a declaration stating that at the time of her
17 separation from debtor, she had not worked for three years and
18 that debtor’s payments to her pursuant to the MSA were intended
19 to assist her in getting back on her feet.
20 On July 18, 2012, the bankruptcy court heard the matter
21 and sustained debtor’s objection. Olivia filed her notice of
22 appeal on August 14, 2012. On November 29, 2012, the bankruptcy
23 court entered the order sustaining debtor’s objection to
24
25 2
Section 1322(a)(2) requires that the plan “provide for the
26 full payment . . . of all claims entitled to priority under
section 507 of [title 11]. . . .” Thus, if an equalizing payment
27 is a “domestic support obligation,” it must be paid in full
through the debtor’s chapter 13 plan, unless the former spouse
28 agrees otherwise.
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1 Olivia’s POC. Accordingly, Olivia’s appeal was timely. See
2 Rule 8002(a) (providing that a notice of appeal filed after
3 announcement of bankruptcy court’s decision, but before entry of
4 an order, is to be treated as filed after such entry).
5 II. JURISDICTION
6 The bankruptcy court had jurisdiction over this proceeding
7 under
28 U.S.C. §§ 1334 and 157(b)(2)(A) and (B). We have
8 jurisdiction under
28 U.S.C. § 158.
9 III. ISSUE
10 Whether the bankruptcy court erred when it determined that
11 the equalizing payment was not a domestic support obligation
12 entitled to priority status under § 507(a)(1)(A).3
13 IV. STANDARDS OF REVIEW
14 We review mixed questions of law and fact de novo.
15 Wechsler v. Macke Int’l Trade, Inc. (In re Macke Int’l Trade,
16 Inc.),
370 B.R. 236, 245 (9th Cir. BAP 2007). A mixed question
17 exists when the facts are established, the rule of law is
18 undisputed, and the issue is whether the facts satisfy the legal
19 standard. In re Bammer,
131 F.3d at 792. Thus, whether a claim
20 is entitled to priority status is a mixed question of law and
21
22 3
Olivia has framed the issue on appeal as whether
23 equalization payments between spouses are dischargeable. While a
debt of the kind described in § 523(a)(15) is nondischargeable in
24 chapters 7, 11 and 12, the expanded discharge provided for in
chapter 13 cases covers debts such as this. Therefore, if the
25 equalization payment is not a domestic support obligation, it
26 would constitute a debt under § 523(a)(15), and could be
discharged in debtor’s chapter 13, even if not paid. However, to
27 obtain a discharge, a chapter 13 debtor must complete all
payments under the plan unless certain exceptions are found to
28 apply. See § 1328.
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1 fact that we review de novo.
2 Our review of a mixed question begins by ascertaining
3 whether the bankruptcy court committed clear error in its
4 findings of fact. In the context of this appeal, we review the
5 bankruptcy court’s factual determination that the debt was not
6 based on spousal support for clear error. Beaupied v. Chang
7 (In re Chang),
163 F.3d 1138, 1140 (9th Cir. 2000) (Whether a
8 debt is actually in the nature of support is a “factual
9 determination made by the bankruptcy court as a matter of
10 federal bankruptcy law.”). “A finding is ‘clearly erroneous’
11 when although there is evidence to support it, the reviewing
12 court on the entire evidence is left with the definite and firm
13 conviction that a mistake has been committed.” United States v.
14 U.S. Gypsum Co.,
333 U.S. 364, 395 (1948). “A court’s factual
15 determination is clearly erroneous if it is illogical,
16 implausible, or without support in the record.” Retz v. Samson
17 (In re Retz),
606 F.3d 1189, 1196 (9th Cir. 2010) (citing United
18 States v. Hinkson,
585 F.3d 1247, 1261–62 & n.21 (9th Cir. 2009)
19 (en banc)).
20 The next step in our review of a mixed question is
21 determining whether the facts satisfy a legal rule. This is a
22 matter of statutory construction. We review a bankruptcy
23 court’s statutory construction and conclusions of law, including
24 interpretation of provisions of the Bankruptcy Code, de novo.
25 Einstein/Noah Bagel Corp. v. Smith (In re BCE W., L.P.),
26
319 F.3d 1166, 1170 (9th Cir. 2003). We therefore review de
27 novo the bankruptcy court’s determination that a debt does not
28 constitute a domestic support obligation within the meaning of
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1 § 507(a)(1)(A). De novo means review is independent, with no
2 deference given to the trial court’s conclusion. See Rule 8013.
3 V. DISCUSSION
4 Section 507(a)(1), enacted as part of the Bankruptcy Abuse
5 Prevention and Consumer Protection Act of 2005 (“BAPCPA”),
6 provides first priority status for a debt which is a domestic
7 support obligation. Section 507(a)(1)(A) provides: “The
8 following expenses and claims have priority in the following
9 order: (1) First: (A) Allowed unsecured claims for domestic
10 support obligations that, as of the date of the filing of the
11 petition in a case under this title, are owed to or recoverable
12 by a . . . former spouse. . . .”
13 The term “domestic support obligation” is defined in
14 § 101(14A):
15 a debt that accrues before, on, or after the date of
the order for relief in a case under this title,
16 including interest that accrues on that debt as
provided under applicable nonbankruptcy law
17 notwithstanding any other provision of this title,
that is—
18
(A) owed to or recoverable by—
19
(i) a spouse, former spouse, or child of the debtor or
20 such child’s parent, legal guardian, or responsible
relative; or
21
. . .
22
(B) in the nature of alimony, maintenance, or support
23 (including assistance provided by a governmental unit)
of such spouse, former spouse, or child of the debtor
24 or such child’s parent, without regard to whether such
debt is expressly so designated;
25
(C) established or subject to establishment before,
26 on, or after the date of the order for relief in a
case under this title, by reason of applicable
27 provisions of—
28 (i) a separation agreement, divorce decree, or
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1 property settlement agreement; [or]
2 (ii) an order of a court of record; or
3 (iii) a determination made in accordance with
applicable non-bankruptcy law by a governmental unit;
4 and
5 (D) not assigned to a nongovernmental entity, unless
that obligation is assigned voluntarily by the spouse,
6 former spouse, child of the debtor, or such child's
parent, legal guardian, or responsible relative for
7 the purpose of collecting the debt.
8 Our review of the MSA shows that the equalizing payment at
9 issue here is a debt (1) that accrued before the order for
10 relief in debtor’s chapter 13 case, (2) that is owed to his
11 former spouse, Olivia, (3) that was established prepetition by
12 reason of applicable provisions of a “divorce decree . . . or
13 property settlement agreement,” and (4) that has not been
14 assigned to a nongovernmental entity. The only issue in dispute
15 is whether the equalizing payment is “in the nature of alimony,
16 maintenance, or support.”
17 Whether a debt is actually in the nature of support is a
18 “factual determination made by the bankruptcy court as a matter
19 of federal bankruptcy law.” In re Chang, 163 F.3d at 1140. “In
20 determining whether a debtor’s obligation is in the nature of
21 support, the intent of the parties at the time the settlement
22 agreement is executed is dispositive.” In re Sternberg,
85 F.3d
23 at 1405.
24 A trial court should consider several factors in
determining how the parties intended to characterize
25 the obligation. Foremost, the trial court should
consider whether the recipient spouse actually needed
26 spousal support at the time of the divorce. In
determining whether spousal support was necessary, the
27 trial court should examine if there was an ‘imbalance
in the relative income of the parties’ at the time of
28 the divorce decree. The trial court should also
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1 consider whether the obligation terminates upon the
death or remarriage of the recipient spouse and
2 whether the payments are ‘made directly to the
recipient spouse and are paid in installments over a
3 substantial period of time.’ Finally, the labels
given to the payments by the parties may be looked at
4 as evidence of the parties’ intent.
5
Id.
6 Here, we can proceed no further with our review because
7 Olivia failed to provide the transcript of the July 28, 2012
8 hearing, where the bankruptcy court announced its oral findings
9 and conclusions. Rule 8009(b) requires an appellant to file an
10 appendix to her brief with excerpts of the record, including a
11 transcript of the opinion, findings of fact, or conclusions of
12 law delivered orally by the court. On November 23, 2012, the
13 Panel issued an Order re Prosecution of Appeal which warned
14 Olivia of the consequences of her failure to provide a
15 transcript. Despite this notice, Olivia failed to respond.
16 Olivia had the burden of showing the bankruptcy court’s
17 findings of fact were clearly erroneous. See Massoud v. Ernie
18 Goldberger & Co. (In re Massoud),
248 B.R. 160, 163 (9th Cir.
19 BAP 2000). We may affirm where the record is inadequate to show
20 clear error, see Friedman v. Sheila Plotsky Brokers, Inc.
21 (In re Friedman),
126 B.R. 63, 68 (9th Cir. BAP 1991), and we do
22 so here.
23 VI. CONCLUSION
24 For the reasons stated, we AFFIRM.
25
26
27
28
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