Lead Opinion
{¶ 3} On March 10, 2005, appellee filed a complaint for divorce against appellant in the Stark County Court of Common Pleas, Family Court Division.
{¶ 4} A temporary order hearing was scheduled for April 12, 2005. Appellant appeared pro se on such date. Pursuant to a Magistrate's Order filed on April 13, 2005, the Magistrate continued the matter until April 26, 2005. The Magistrate, in her order, stated that the matter would proceed on April 26, 2005, "with or without counsel."
{¶ 5} Thereafter, as memorialized in a Magistrate's Order filed on April 27, 2005, the Magistrate, following the April 26, 2005, hearing, granted appellee exclusive use of a Mercury Tracer and ordered appellant to pay temporary spousal support to appellee in the amount of $450.00 a month beginning on May 1, 2005.
{¶ 6} An uncontested divorce trial was held before a Magistrate on July 12, 2005. Appellant did not appear for the same. Pursuant to a Magistrate's Decision filed on July 13, 2005, the Magistrate recommended that appellee be granted a divorce from appellant and that appellee be granted the 1995 Mercury Tracer free and clear of all claims of appellee. The Magistrate further recommended that appellant be ordered to pay spousal support to appellee in the amount of $500.00 a month for seven years and that appellee be awarded 50% of the equity in the marital residence.
{¶ 7} On July 21, 2005, appellant filed an objection to the Magistrate's Decision. Appellant, in his objection, stated, in relevant part, as follows:
{¶ 8} "1. The Defendant is a debtor in a pending Chapter 13 Bankruptcy proceeding, Case No. 04-62518, filed in the Northern District of Ohio, on May 11, 2004.
{¶ 9} "2. As a result of said bankruptcy, this divorce proceeding was stayed under the United States Bankruptcy Code, and this Court had no authority to proceed with a divorce.
{¶ 10} "3. Attached hereto is a copy of the Notice of Meeting of Creditors and the Bankruptcy Court Docket.
{¶ 11} "4. Further attached is the Magistrate's decision dated July 12, 2005, which was filed in [sic] July 13, 2005.
{¶ 12} "5. Further attached is Defendant's affidavit in support of this Objection." Appellant, in his Objection, asked that the Magistrate's Decision of July 12, 2005, be vacated in its entirety.
{¶ 13} A hearing on appellant's objection was held before the trial court on September 12, 2005. At the hearing, appellant's counsel indicated to the trial court that a bankruptcy petition was pending as of the date of the trial before the Magistrate on July 12, 2005. Appellant, when asked, indicated to the trial court that the pending bankruptcy petition was brought to the Magistrate's attention at the first temporary order hearing on April 12, 2005. At the objection hearing, appellee's counsel stated on the record, in relevant part, as follows:
{¶ 14} "Atty. Williams: Your Honor when we were here before the bankruptcy was mentioned at the admission hearing. I mean this . . . these parties have been before this Court for probably the last you know eight or nine months initially on a domestic violence. Um Jeremy Foltz was representing Mr. Sitzman at that time. We discussed the bankruptcy. We came back when the divorce was filed we came here for hearing. I discussed with Mr. Foltz at that time Mr. Sitzman was agreeing . . . we were going to file a joint Motion for Relief from Stay. We came back for the hearing, Jeremy was not there. Mr. Sitzman said that he wanted to get um I guess additional counsel. We came back two weeks later on April 26th he was there pro se. Throughout all of these proceedings he has never once filed an answer or any pleading necessarily [sic] in this matter." Transcript of September 12, 2005, hearing at 7. However, no mention of the pending bankruptcy petition was made in any of the Magistrate's Orders or Decisions.
{¶ 15} Subsequently, as memorialized in a Judgment Entry filed on October 4, 2005, the trial court overruled appellant's objection to the Magistrate's Decision. A Judgment Entry: Final Decree of Divorce was filed on October 11, 2005. The trial court, in such entry, awarded appellee a divorce from appellant and ordered appellant to pay spousal support to appellee in the amount of $500.00 a month for seven years. The trial court also awarded appellee 50% of the equity in the marital home and ordered appellant to refinance the same within six months or the marital home would be sold or auctioned off. The trial court also awarded appellee the 1995 Mercury Tracer.
{¶ 16} Appellant now raises the following assignments of error on appeal:
{¶ 17} "I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT THE AUTOMATIC STAY IN BANKRUPTCY DID NOT STAY THE EQUITABLE ASPECTS OF THE DIVORCE PROCEEDING.
{¶ 18} "THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO FIND THAT MR. SITZMAN DETRIMENTALLY RELIED ON THE STATEMENT MADE BY OPPOSING COUNSEL THAT SHE WOULD SEEK RELIEF FROM STAY IN BANKRUPTCY BEFORE CONTINUING WITH THE DIVORCE PROCEEDING.
{¶ 19} "III. THE TRIAL COURT'S JUDGMENT ENTRY: FINAL DIVORCE DECREE IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND OTHERWISE CONTRARY TO LAW."
{¶ 21} As is stated above, the parties in the case sub judice filed a Chapter 13 bankruptcy petition on May 11, 2004. Subsequently, on March 10, 2005, while the bankruptcy case was still pending, appellee filed a complaint for divorce.
{¶ 22} Federal bankruptcy law provides an automatic stay of judicial proceedings against a debtor upon the filing of a bankruptcy petition.1
{¶ 23} "(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title."
{¶ 24} However,
{¶ 25} The filing of a petition * * * does not operate as a stay —
{¶ 26} "(2) under subsection (a) of this section —
{¶ 27} "(A) of the commencement or continuation of an action or proceeding for —
{¶ 29} "(B) of the collection of alimony, maintenance, or support from property that is not property of the estate. . . ." (Emphasis added). See also State ex rel. Miley v. Parrott,
{¶ 30} The parties in the case sub judice agree that the trial court had no jurisdiction to order any division of marital assets and property. This Court previously addressed such issue in Wade v. Wade, Morrow App. No. CA-943,
{¶ 31} This Court, in Wade, sustained the appellant's assignment of error, holding, in relevant part, as follows: "The filing of a petition in bankruptcy operates as a stay of certain legal proceedings against the debtor, including the enforcement of judgments against him as set forth in Section 362, Title 11, U.S.Code. Barnett v. Barnett (1984),
{¶ 32} "In light of the fact the bankruptcy stay is automatically imposed, we agree with appellant the trial court erred in proceeding to divide the marital assets in the divorce decree. As set forth above, the parties are free to petition the bankruptcy court for a lifting of the stay. However, until the stay has been lifted, the trial court is without jurisdiction to divide marital assets which are also part of appellee's estate in bankruptcy." Id at paragraphs 10 and 11.
{¶ 33} Thus, the only issue for determination is whether the trial court had jurisdiction to order appellant to pay spousal support to appellee in light of the automatic bankruptcy stay. Appellant contends that since, pursuant to
{¶ 34} As is stated above,
{¶ 35} In the case sub judice, the trial court established
spousal support. Appellant contends that the trial court lacked jurisdiction to do so. However, as noted by the court in Lalliv. Lalli (March 16, 2001), Ashtabula App. No. 98-A-0096,
{¶ 36} Based on the foregoing, appellant's first assignment of error is sustained, in part, and overruled, in part. This Court finds that, while the trial court had jurisdiction to order spousal support, the trial court lacked jurisdiction to divide the parties' marital assets and property. The trial court's October 11, 2005, Judgment Entry is, therefore, vacated with respect to the issue of marital property.
{¶ 38} We, however, find that the trial court did not abuse its discretion since appellant had a duty to appear for the scheduled hearings. We agree with appellee that appellant should not have assumed that the hearings and trial would not proceed. As noted by the trial court on the record at the September 12, 2005, hearing, appellant did so at his own peril.
{¶ 39} Based on the foregoing, appellant's second assignment of error is overruled.
{¶ 41} With respect to spousal support, appellant appears to argue that the trial court abused its discretion in establishing spousal support while the chapter 13 bankruptcy was pending since any bankruptcy plan may impact the parties' financial situation. However, as is stated above, the trial court had jurisdiction to establish spousal support during the pendency of the bankruptcy action. Thus, we find that the trial court did not abuse its discretion.
{¶ 42} However, based on our disposition of appellant's first assignment of error, appellant's third assignment of error is sustained with respect to the division of marital property.
{¶ 43} The judgment of the Stark County Court of Common Pleas, Domestic Relations Division, is affirmed, in part, reversed and vacated, in part, and remanded.
By: Edwards, J. Wise, P.J. concurs Hoffman, J. concurs in part; dissents in part.
Dissenting Opinion
{¶ 44} I concur in the majority's analysis and disposition of appellant's first assignment of error with respect to its finding the trial court lacked jurisdiction to divide the parties' marital assets and property. However, I respectfully dissent from the majority's decision not to also vacate the trial court's decision regarding spousal support.
{¶ 45} In establishing a spousal support order, R.C.
{¶ 46} "(C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors:
{¶ 47} "(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section
{¶ 48} Because the equitable division of property is a statutorily recognized factor in determining spousal support, that interdependence precludes the trial court from setting a final spousal support order during the pendency of the bankruptcy proceeding, absent obtaining leave from the bankruptcy court. Nevertheless, it should be noted, the trial court clearly has jurisdiction to issue a temporary spousal support order during the pendency of the bankruptcy proceeding regardless of whether leave is sought or granted by the bankruptcy court.