336 S.W.3d 433
Ky.2011Background
- Dissolution decree provided joint custody with Sondra as primary residential custodian and Shane paying child support; child support based on Shane’s imputed pre-decree earnings rather than actual earnings.
- Decree allocated marital debts, including a National City loan on a Durango repossessed before/after the decree, with Shane ordered to pay the loan per the split of debts.
- Shane filed a Chapter 7 bankruptcy about a year after the decree; he received a discharge and Sondra did not file an adversary proceeding to challenge discharge of the Durango debt.
- Creditor pursued collection from Sondra after Shane’s discharge; the trial court found Shane in contempt for failure to pay the Durango debt under the divorce decree.
- Shane sought modification of child support fifteen months post decree, claiming a material change in circumstances including health issues and bankruptcy; the trial court denied modification.
- Court of Appeals affirmed all rulings; Kentucky Supreme Court affirmed on the issues, including that the Durango debt was nondischargeable as a divorce-related obligation post-BAPCPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Modification of child support post-decree | Howard argues changed circumstances justify modification. | Howard’s evidence fails to show material, continuing change. | No abuse of discretion; no material, continuing change shown. |
| Dischargeability of a divorce-related debt after Chapter 7 | Sondra argues the Durango debt is nondischargeable under §523(a)(15). | Shane’s obligation to pay under the decree is a separate nondischargeable obligation to Sondra. | Debt to Sondra under divorce decree is nondischargeable post-BAPCPA; state court may enforce via contempt. |
| State court jurisdiction to determine dischargeability** | State court can construe discharge and determine dischargeability. | Bankruptcy court handles discharge status; state court only interprets. | Kentucky courts have concurrent jurisdiction to determine dischargeability of a debt under §523(a). |
| Attorney’s fees award | Award should reflect resources and justify sanction. | Court may award reasonable fees after considering financial resources. | No abuse of discretion; $500 awarded aligns with resources and result. |
Key Cases Cited
- Holbrook v. Holbrook, 151 S.W.3d 825 (Ky.App.2004) (pre-BAPCPA—require adversary to except non-support divorce debt from discharge)
- Keplinger v. Keplinger, 839 S.W.2d 566 (Ky.App.1992) (imputation of income and modification standards in child support)
- Goldsmith v. Bennett-Goldsmith, 227 S.W.3d 459 (Ky.App.2007) (denial of modification where no post-decree change in circumstances shown)
- Artrip v. Noe, 311 S.W.3d 229 (Ky.2010) (abuse-of-discretion standard for modification rulings in child support)