Opinion
FSTFA156024910S
12-03-2018
Tobin W. MULSHINE v. Leigh N. MULSHINE
UNPUBLISHED OPINION
OPINION
HELLER, J.
The following postjudgment motions are presently under consideration by this court: # 231.00, # 232.00, # 236.00, # 237.00, # 238.00, # 239.00, and # 240.00. On November 8, 2018, after the final hearing on these motions and related claims for attorneys fees, the plaintiff Tobin Mulshine filed a petition under Chapter 13 of the United States Bankruptcy Code, 11 U.S.C. § 1301, et seq. The plaintiff’s Chapter 13 case remains pending in the United States Bankruptcy Court for the District of Connecticut (see # 251.00).
The court held a status conference on November 27, 2018 to address the applicability of the automatic stay pursuant to. § 362 of the Bankruptcy Code to the motions that are before the court. The defendant Leigh Mulshine, who is representing herself, and counsel for the plaintiff appeared. The plaintiff did not attend the status conference. Further to the discussion with the plaintiff’s counsel and the defendant, as well as the court’s own research, the court has concluded that disposition of the pending motions is stayed until the plaintiff’s Chapter 13 case is closed or the defendant obtains relief from the automatic stay so that the court can proceed.
"During the pendency of a federal bankruptcy action, a state court has jurisdiction to hear matters pertaining to the dissolution of a marriage but not to hear matters relating to the property that is part of the bankruptcy estate. See 11 U.S.C. § 362(a)(1), (2) and (3). ‘[A]ll issues in the underlying litigation relating] to property in the bankruptcy estate are stayed as a matter of law.’ (Internal quotation marks omitted.) Defeo v. Defeo, Superior Court, judicial district of Tolland, Docket No. FA 04 0083873 (January 6, 2006, Swords, J.) (40 Conn.L.Rptr. 554, 555); see also Peters v. Peters, Superior Court, judicial district of New Haven, Docket No. FA 94 0360792 (January 23, 1996, Alander, J.) (18 Conn.L.Rptr. 112) (court held ‘during the pendency of the automatic bankruptcy stay, [the court] lacked authority to address the issue of the division of the marital home’). A bankruptcy filing, however, does not operate as a stay for ‘the commencement or continuation of an action or proceeding for alimony, maintenance or support; or ... [for] the collection of alimony, maintenance, or support from property that is not property of the estate.’ 11 U.S.C. § 362(b)(2)(A) and (B)." Czajka v. Czajka, Superior Court, judicial district of Middlesex, Docket No. FA-07-4007798-S (July 9, 2009, Calmar, J.).
"As set forth in 11 U.S.C. § 362(b), there are some exceptions to the operation of the automatic stay. In general, the stay has limited applicability to domestic relations proceedings ... These exceptions reflect the fact that a principal purpose of the automatic stay is to protect the debtor’s discharge, and alimony, maintenance and support obligations are excepted from discharge in bankruptcy by 11 U.S.C. § 523(a)(5)." (Citations omitted.) Pearce v. Jackson, 777 A.2d 822 (D.C.App. 2001). In Brown v. Brown, Superior Court, judicial district of New Haven, Docket No. FA-07-4028466-S (Dec. 30, 2009, Conway, J.) (49 Conn.L.Rptr. 129), the court concluded that the exception to the automatic stay under 11 U.S.C. § 362(b)(2)(A)(ii) permitted it to adjudicate a motion for contempt relating to payment of the fees of the attorney for the minor child while the defendant’s Chapter 7 case was pending. In so ordering, the court recognized "the need to tread carefully. If the federal bankruptcy court were to ultimately disagree with this court and find that the AMC’s fees were not exempt from the stay, any orders by this court could be in jeopardy and the AMC may be foreclosed from receiving his just compensation." Id. "[A] state court makes such a decision at its peril, for the bankruptcy court is not precluded by the state court’s decision. If the bankruptcy court later decides that the state court was incorrect, the state court proceedings in violation of the stay are void ... On the other hand, if the state court is correct in deciding that the stay does not apply, the state court proceedings are not void." (Citations omitted.) Lockyer v. Mirant Corp. 398 F.3d 1098, 1106 (9th Cir. 2005).
If the plaintiff had brought EIS bankruptcy case under Chapter 7 of the Bankruptcy Code, this court would find Brown to be instructive. Here, however, the plaintiff filed a bankruptcy petition under Chapter 13, which leads the court to a different conclusion.
In Pearce v. Jackson, supra, the trial court held the plaintiff in contempt for failing to pay a child support arrearage in accordance with a pendente lite support order. On appeal, the District of Columbia Court of Appeals found that "[t]he contempt nonetheless did not come within the exception to the automatic stay in 11 U.S.C. § 362(b)(2)(B) for collection of support, because it was not targeted to compel payment ‘from property that is not property of the estate.’ On the contrary, because [the plaintiff] was a Chapter 13 debtor at the time of the contempt hearing, rather than a Chapter 7 debtor, it is not likely that he had any property outside the bankruptcy estate from which he could make support payments. The terra ‘property of the estate’ generally encompasses all of the debtor’s property as of the date of commencement of the bankruptcy. See 11 U.S.C. § 541. In a Chapter 13 case, ‘property of the estate’ also includes the debtor’s post-petition earnings, because the Chapter 13 debtor may be undertaking to use such earnings to reorganize and pay his creditors. See 11 U.S.C. § 1306(a). For this reason, it has been noted, ‘the exception in 11 U.S.C. § 362(b)(2) has little or no practical effect in Chapter 13 situations.’ Carver v. Carver, 954 F.2d 1573, 1577 (11th Cir. 1992)." Pearce v. Jackson, supra 777 A.2d at 826.
The Pearce court concluded that "[a]s the exception in 11 U.S.C. § 362(b)(2) was not available, 11 U.S.C. § 362(a) operated to stay the proceeding to hold [the plaintiff] in civil contempt for not making his support payments ... [The defendant’s] proper remedy when confronted with the automatic stay was to apply for relief from the stay in the bankruptcy court pursuant to 11 U.S.C. § 362(d) before going ahead with the contempt hearing ... As [the defendant] did not obtain an order from the bankruptcy court modifying or lifting the stay, the contempt adjudication violated the automatic stay and was void." Id. See also Eden v. Robert A. Chapski, Ltd., 405 F.3d 582, 588 (7th Cir. 2005) (where plaintiff filed bankruptcy petition under Chapter 13, "any effort to enforce the judgment of dissolution was subject to the automatic stay (unless and until the stay was modified by the bankruptcy court) insofar as [defendants] sought to collect from resources that were property of the bankruptcy estate" (emphasis in original).
This court finds Pearce to be on point. The court’s power to hold the plaintiff in contempt or to award attorneys fees to the defendant is subject to the provisions of 11 U.S.C. § 362(a) while the plaintiff’s Chapter 13 bankruptcy case is pending, unless the defendant obtains relief in the Bankruptcy Court from the automatic stay. Accordingly, the court’s ruling on motions # 231.00, # 232.00, # 236.00, # 237.00, # 238.00. # 239.00, and # 240.00 is hereby STAYED until the earlier of the plaintiff’s discharge in bankruptcy, the dismissal of his Chapter 13 case, or the defendant’s successful prosecution of a motion for relief from stay in the plaintiff’s bankruptcy case.
The Family Caseflow Coordinator shall be advised when this matter is no longer subject to the automatic stay under 11 U.S.C. § 362(a). A hearing shall be scheduled thereafter for the court to take additional evidence regarding the current status of the claims that are the subject of the pending motions, including their disposition in the plaintiff’s Chapter 13 plan or otherwise. The record shall remain open until that time.