Brunhoff v. Brunhoff (In Re Brunhoff) ( 1980 )

4 B.R. 381 (1980)

In re Henry Edward BRUNHOFF, Jr., a/k/a H. Edward Brunhoff, Debtor.
Todd BRUNHOFF, as Personal Representative of the Estate of Martha P. Brunhoff, Deceased, Plaintiff,
v.
Henry Edward BRUNHOFF, Jr., a/k/a H. Edward Brunhoff, Defendant.

Bankruptcy No. 80-0077-BKC-TCB-A.

United States Bankruptcy Court, S.D. Florida.

June 4, 1980.

Kruzich & Rhoads, Lake Park, Fla., for debtor.

Lloyd & Brown, Fort Pierce, Fla., for plaintiff.

ORDER DISMISSING COMPLAINT

THOMAS C. BRITTON, Bankruptcy Judge.

The plaintiff creditor in this adversary proceeding seeks denial of the debtor's discharge under 11 U.S.C. § 727(a)(3), (4) and (5) and, in the alternative, seeks a determination that his claim is non-dischargeable under 11 U.S.C. § 523(a)(5). (C.P. No. 1) Neither plaintiff nor his counsel appeared for the trial of this matter and no explanation or excuse for their failure to appear has been offered. Defendant was ready for trial.

With respect to the allegations seeking denial of discharge, the court received a verbal report from both the trustee and the trustee's attorney that there is no basis for the allegations made by the plaintiff against the bankrupt under § 727 and the trustee does not wish the option of continuing his law suit for the benefit of the creditors generally.

With respect to the allegation seeking a determination that plaintiff's judgment claim in the amount of $32,967 is non-dischargeable under § 523(a)(5), the court has received testimony that plaintiff's claim was originally a claim for alimony which would have been non-dischargeable. However, the debtor's ex-wife died one year ago and plaintiff is suing as personal representative of the ex-wife's estate.

The Code expressly provides that a debt for alimony is dischargeable:

". . . to the extent that (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise; . . ."

The debt has been assigned to another entity, the ex-wife's personal representative, by operation of law and is not, therefore, non-dischargeable under the provisions of the Code.

In light of the foregoing considerations and in view of the fact that the plaintiff has offered no proof or evidence in support of his complaint, the complaint is dismissed with prejudice and at the cost of the plaintiff.