Gorelik v. Gorelik

Oct 19, 2011
10-1923
Versions:443 F. App'x 586

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 19th day of October, two thousand eleven.

PRESENT: JOHN M. WALKER, JR., JOSEPH M. McLAUGHLIN, DEBRA ANN LIVINGSTON, Circuit Judges.

For Appellee: GENNADY GORELIK, pro se, Brooklyn, N.Y.

For Appellant: HENRY J. BOITEL, Rockville Centre, N.Y.

Appeal from a judgment of the United States District Court for the Southern District of New York (Robinson, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED.

Elena Gorelik, through counsel, appeals from the judgment dismissing her appeal from a bankruptcy court order declaring that any putative judgment or award in Appellant’s favor and against Appellee Gennady Gorelik regarding fees incurred as a result of (1) the appointment of a law guardian to represent the parties’ children, (2) the appointment of a forensic psychologist to evaluate the parties’ children, and (3) legal representation of Appellant in the dispute over custody of the parties’ children (collectively, the “custody litigation fees”), would not constitute “support” within the meaning of 11 U.S.C. § 523(a)(5), and thus would be dischargeable under 11 U.S.C. § 727(a). Appellee moves to strike certain portions of Appellant’s appendix, as well as parts of Appellant’s brief referencing those materials, on the grounds that they were not part of the record before the district court. Appellee further moves to supplement the record with a state court decision, dated July 14, 2008, granting his application for downward modification of his child support obligation and granting Appellant’s application to modify the income level upon which calculations of the support obligation were based. We assume the parties’ familiarity with the facts and procedural history.

Upon due consideration, it is hereby ORDERED that Appellee’s motion to strike the portions of Appellant’s appendix and brief identified in the motion is GRANTED because the pertinent documents were not presented to the district court, and Appellant has failed to demonstrate extraordinary circumstances warranting their inclusion. See Int’l Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975) (per curiam) (“[A]bsent extraordinary circumstances, federal appellate courts will not consider rulings or evidence which are not part of the trial record.”). It is further ORDERED that Appellee’s motion to supplement the record with the state court’s July 14, 2008 order is DENIED for the same reason. See id.

This Court’s review of the orders of the district courts in their capacity as appellate courts in bankruptcy cases is plenary. Therefore, this Court reviews the bankruptcy court’s determinations of law de novo and its determination of facts for clear error only. See In re First Cent. Fin. Corp., 377 F.3d 209, 212 (2d Cir. 2004). “[W]hether a debt meets the statutory requirement for being in the nature of support is a factual determination of the bankruptcy court, and as such is subject to reversal only if clearly erroneous.” In re Maddigan, 312 F.3d 589, 595 (2d Cir. 2002).

Having conducted an independent review of the record and case law in light of these principles, we affirm the district court’s judgment for substantially the same reasons stated by the district court in its thorough and well-reasoned memorandum decision and order. We have considered all of Appellant’s arguments on appeal and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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