Opinion
Case No. 11-14948 Adversary No. 11-1195
10-26-2012
In Re Jeffrey W. Johnston Debtor Mary R. Johnston Plaintiff v. Jeffrey W. Johnston Defendants
This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
_____________
Beth A. Buchanan
United States Bankruptcy Judge
Chapter 7
Judge Buchanan
DECISION FINDING DEBT NON-DISCHARGEABLE
PURSUANT TO 11 U.S.C. § 523(a)(6)
The matter before this Court involves a question of whether the debtor-defendant's conduct that resulted in injury to the plaintiff during an altercation regarding the debtor-defendant's extra-marital affair gives rise to a nondischargeable debt for willful and malicious injury pursuant to 11 U.S.C. § 523(a)(6). Because this Court finds that the debtor-defendant intended to injure the plaintiff or otherwise believed that injury to the plaintiff was substantially certain to follow from his actions and that such actions were without just cause or excuse, this Court concludes that the debtor-defendant's conduct was willful and malicious within the meaning of 11 U.S.C. § 523(a)(6).
I. Jurisdiction
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the general order of reference entered in this District. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I).
II. Procedural History
This matter is before this Court on Plaintiff Mary R. Johnston's (the "Plaintiff") Complaint to Determine Dischargeability of Debt and Seeking Judgment Against Debtor Jeffrey W. Johnston [Docket Number 1] and the Defendant-Debtor's (the "Defendant") Answer to Complaint to Determine Dischargeability of Debt [Docket Number 4].
A pre-trial conference was conducted on March 1, 2012 at which the parties requested that this Court bifurcate the trial on the issues of nondischargeability and damages. Accordingly, this Court conducted a trial on the issue of dischargeability on May 16, 2012, reserving the issue of damages for a later determination in the event that this Court found that the Defendant's conduct gave rise to a nondischargeable obligation.
III. Findings of Fact
On the evening of November 21, 2008, the Plaintiff and the Defendant, who were married at the time, went to a bar to listen to a band. They each consumed a few cocktails while at the bar. Although the Defendant stated during his direct testimony that he was "inebriated," neither accused the other of being drunk that evening. After spending a few hours at the bar, the Plaintiff and the Defendant left to eat dinner at a restaurant. While at the restaurant, the Plaintiff brought up the topic of an extra-marital affair that the Defendant had recently ended. The Plaintiff testified that she and the Defendant argued over the affair at dinner, which ended abruptly after the Defendant made a scene at the restaurant. The Defendant drove them home. The topic of the affair continued on the drive home with the Defendant becoming irate, hitting his fists on the steering wheel in anger.
The Plaintiff testified that when she and the Defendant arrived at their home, she entered the home first through the garage, walked into the kitchen, and placed the leftover food on the kitchen counter. She testified that after she set the food on the counter, she sensed someone coming from behind her and began to turn her head over her right shoulder. While turning her head, she also raised her right hand toward and over her right shoulder in a defensive position. The Plaintiff testified that the Defendant then punched her three times, hitting her on the right side of her face. The Plaintiff does not remember anything from this point until her daughter was standing over her while Plaintiff was lying on the kitchen floor. The Plaintiff testified that she did not do anything physical towards the Defendant to instigate the attack.
The Defendant testified that he and the Plaintiff did argue on the drive home about the Defendant's extra-marital affair. The Defendant testified that the Plaintiff entered the home first and that he parked the car, closed the garage door, and went into to the kitchen. Thereafter, the Defendant's version of events of the evening differs from the Plaintiff's account. The Defendant testified that the Plaintiff continued the argument in the kitchen. The Defendant testified that the Plaintiff "started on me right again," "getting in my face," and "badgering me" and "yelling at me." The Defendant stated that the Plaintiff "just yack[ed] yack[ed] and yack[ed] yack[ed]" about the affair that night and would not stop. The Defendant testified that the Plaintiff was face to face with him, within inches of his face. Stating that he wanted to "just to get her out of my face," the Defendant testified that he overreacted and pushed her away by her shoulders. She then slipped or tripped and her head hit the island counter, which caused her injuries. The Defendant testified that he did not intend to cause the Plaintiff any harm. He stated that he pushed her because he was "aggravated with the same argument over and over and over again and I just reached a breaking point and I overreacted."
The parties' thirteen year old daughter (the "Minor Child") was in the basement at the time of the incident studying for her high school entrance exam. The Minor Child testified that she heard noise coming from the kitchen and ran upstairs. She testified that she saw the Defendant standing over the Plaintiff, straddling her and striking Plaintiff multiple times. The Minor Child testified that the Defendant had blood on his hands and on his shirt. The Minor Child called 911, but the Defendant took the phone from her. The Minor Child attempted to call 911 again with a different phone, but the Defendant again took that phone away from her. The Defendant testified that during this time he was trying to calm the Minor Child down because she was screaming and yelling. He also testified that he was upset and that he was inebriated, and he was trying to figure out what to do.
At this point, the Plaintiff was lying on the kitchen floor bleeding. The Defendant then went to the bathroom to get a towel to clean the blood and when he returned he testified that a police officer was in the living room. Unbeknownst to the Minor Child and the Defendant, one of the phone calls to 911 remained open and the police dispatch center could still hear the commotion through the open line. The 911 call corroborates the Defendant's testimony that the Minor Child was extremely upset and wanted to call 911. The Defendant is heard trying to calm the Minor Child while trying to keep her from calling 911.
Deputy Sheriff Ryan Burke ("Deputy Burke") testified that he received a dispatch for a "domestic call in progress" to the parties' residence on November 21, 2008. When Deputy Burke arrived at the home, the house was dark. He knocked on the door and the Defendant answered. Deputy Burke asked if everything was okay in the home because they had received a disturbance call from the residence. The Defendant responded to Deputy Burke that they did not make a call to 911. Deputy Burke then saw the Minor Child behind the Defendant and asked the Defendant if his wife and family were in the home. The Defendant responded that they were. When Deputy Burke asked to speak with the Defendant's wife; the Defendant stated that his wife was not available to speak with him.
The Defendant testified that he does not remember answering the door and speaking with Deputy Burke at this point.
Deputy Burke gained entry into the home and saw a large pool of blood in the kitchen. He then placed the Defendant in handcuffs. Deputy Burke could hear the Minor Child crying and found her in her bedroom, but was unable to get any information from her because she was visibly shaken and unable to speak. Deputy Burke then went into the master bedroom, called out and heard moans coming from the bathroom. He was unable to enter the bathroom initially because it was locked; the Plaintiff eventually opened the bathroom door. Deputy Burke testified that the Plaintiff was lying on the floor unable to move, that she was bloodied, bruised and unable to speak. He called for an ambulance due to her condition. The Plaintiff was then able to tell Deputy Burke that the Defendant had hit her. The Defendant gave Deputy Burke no information as to how the Plaintiff was injured, only saying that they had they had been drinking and arguing. Deputy Burke took photos of the Plaintiff's injuries both on the evening of the incident and the following week which showed the injuries to the right side of the Plaintiff's face. The pictures show, in graphic detail, the impact of the assault on the Plaintiff, which included a broken eye socket and shattered cheek bone.
Deputy Burke acknowledged that the Defendant did not have any blood or bruising on his hands when Deputy Burke handcuffed him. In addition, no photos of Defendant's hands were taken, nor was the Defendant's shirt, pants or shoes taken as evidence for a criminal proceeding. In his experience, however, he testified that there is not always physical injury to the subject accused of being the aggressor in a domestic call. Based on his experience and observations, Deputy Burke testified the injuries suffered by the Plaintiff were not consistent with being pushed but were consisted with being hit multiple times.
As a result of the events of that evening, the Defendant was charged with felonious assault, being Case No. B08 09323 in the Court of Common Pleas, Hamilton County, Ohio (the "Criminal Case"). The Defendant eventually pled guilty to attempted aggravated assault.
While the Criminal Case was pending, the Plaintiff sent a letter to the judge presiding over the Criminal Case requesting that the protection order against the Defendant be lifted. The letter characterizes the events of the evening of November 21, 2008 as an "unfortunate incident." The letter further states in relevant part:
[Defendant] is a good person at heart and I know that he did not mean to hurt me. He was only defending himself. He overreacted, but, we wouldn't be in this situation if I hadn't been so aggressive. Your honor, please believe me when I say this was an accident . . . We both went too far.
The Plaintiff testified that she did not draft the letter. Rather the letter was sent to her by the Defendant's older daughter. The Plaintiff did edit the letter before sending it to the judge, deleting the following language (deleted language underlined):
[Defendant] is a good person at heart and I know that he did not mean to hurt me. He was only defending himself against my verbal and physical abuse. He overreacted, but, we wouldn't be in this situation if I hadn't so aggressively attacked him both verbally and physically. Your honor, please believe me when I say this was an accident . . . [Minor Child] misses him as do I. The pictures taken by the police (without my consent by the way) of my face after the incident are probably so awful that it is easy to jump to conclusions about what happened. Please your honor, I ask that you see past all of the lies and exaggerations being said by the police and the prosecutor to what really happened. We both went too far.
* * *
Your honor, I agree with everything my mother said above. I have nothing to fear from my father and I want to be able to talk to him soon.
[Minor Child]
The Minor Child refused to sign the letter.
The Plaintiff acknowledged on cross-examination that she knowingly sent a false letter to the judge. The Plaintiff testified that the Defendant's older daughter encouraged her to send the letter to the judge and that she did so to keep the Defendant out of jail, but that she regrets having sent the letter.
IV. Legal Analysis
A fundamental purpose of the Bankruptcy Code is to afford debtors a "fresh start" by reordering their financial affairs and resolving their obligations with creditors so that debtors may have "a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt." Grogan v. Garner, 498 U.S. 279, 286 (1991)(quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934))(internal quotation marks omitted). But only "honest but unfortunate" debtors are entitled to an entirely unencumbered fresh start. Jett v. Sicroff ( In re Sicroff), 401 F.3d 1101, 1104 (9th Cir. 2005)(citing Grogan, 498 U.S. at 287). As a result, the Bankruptcy Code excepts certain debts from discharge. See generally 11 U.S.C. § 523(a). These exceptions to discharge are to be narrowly construed in favor of debtors in keeping with the "fresh start" objective of the Bankruptcy Code. Monsanto Co. v. Trantham (In re Trantham), 304 B.R. 298, 306 (B.A.P. 6th Cir. 2004). A. Section 523(a)(6) Standard For Determining Exception To Dischargeable For Debts Caused By Willful And Malicious Injury
References to the "Bankruptcy Code" are to Title 11 of the United States Code, 11 U.S.C. § 101 et seq., as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8.
Section 523(a)(6) of the Bankruptcy Code ("§ 523(a)(6)") is one of the enumerated exceptions to discharge. "This exception to discharge is one of the oldest known in American bankruptcy jurisprudence—being part of the original Bankruptcy Act of 1898—and is aimed at the type of both socially and morally reprehensible conduct that is not deserving of the fresh-start policy which underlies the Bankruptcy Code." Superior Metal Prods. v. Martin (In re Martin), 321 B.R. 437, 440 (Bankr. N.D. Ohio 2004)(citations omitted). In particular, § 523(a)(6) excepts from discharge any debt "for willful and malicious injury by the debtor to another entity or to the property of another entity." 11 U.S.C. § 523(a)(6). "The willful and malicious standard is a stringent one, and 'debts arising from recklessly or negligently inflicted injuries do not fall within the compass of § 523(a)(6).'" Steier v. Best (In re Best), 109 Fed. Appx. 1, 4 (6th Cir. 2004)(quoting Kawaauhau v. Geiger, 523 U.S. 57 (1998)). A creditor has the burden of proving by a preponderance of the evidence that a debt is nondischargeable pursuant to § 523(a)(6). Grogan, 498 U.S. at 291.
"Although the 'willful' and 'malicious' requirements will be found concurrently in most cases, the terms are distinct, and both requirements must be met under § 523(a)(6)." S. Atl. Neurology and Pain Clinic, P.C. v. Lupo (In re Lupo), 353 B.R. 534, 550 (Bankr. N.D. Ohio 2006)(citations omitted). As interpreted by the United States Supreme Court, a "willful" injury requires "a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998). Accordingly, a court must find that "the debtor intended his actions, and the debtor either intended his actions to cause injury to the creditor or the debtor believed that injury to the creditor was substantially certain to follow." Tomlin v. Crownover (In re Crownover), 417 B.R. 45, 57 (Bankr. E.D. Tenn. 2009)(citing Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 464-65 (6th Cir. 1999)). Because a debtor will rarely admit to a subjective intent to cause injury, "in addition to what a debtor may admit to knowing, a bankruptcy court may consider circumstantial evidence that tends to establish what the debtor may have actually known when taking the injury-producing action." In re Lupo, 353 B.R. at 550 (citing In re Sicroff, 401 F.3d at 1106).
The term "malicious" is construed in the context of § 523(a)(6) to mean actions taken "in conscious disregard of one's duties or without just cause or excuse; it does not require ill-will or specific intent." In re Trantham, 304 B.R. at 308 (quoting Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir. 1986)(internal quotation marks omitted)). While "in [the] great majority of cases, the same factual events that give rise to a finding of 'willful' conduct, will likewise be indicative as to whether the debtor acted with malice, . . . the definition of malice requires a heightened level of culpability transcending mere willfulness." In re Martin, 321 B.R. at 442. In the context of a physical altercation, such is at issue in this adversary proceeding, courts consider whether claims of self-defense, mutual combat or provocation affect whether a debtor had just cause or excuse for inflicting an injury. See generally James Lockhart, Annotation, Claim or Judgment Based on Assault and Battery Other Than Aggravated or Felonious Assault and Battery or Assault or Battery Using Deadly Weapon as Liability for Willful and Malicious Injury Within § 523(a)(6) of Bankruptcy Act (11 U.S.C.A. § 523(a)(6)) and Predecessor Statute, Barring Discharge of Such Liability, 28 A.L.R. Fed.2d 179 (2012). B. Debtor's Actions Were Willful And Malicious Within The Meaning of Section 523(a)(6)
The weight of the evidence supports this Court's conclusion that the Defendant acted willfully and with malice, within the meaning of § 523(a)(6), when he injured the Plaintiff on the evening of November 21, 2008. While the logistics of either party's version of the incident that night are not entirely straightforward, the Plaintiff's rendition of the actions leading to her injury is the most plausible. Due to the placement and the degree of the injuries, the only logical conclusion that this Court can reach is that the Plaintiff was hit by the Defendant as she was standing with her back to him and he was coming up from behind. The Defendant's contention that he pushed the Plaintiff as they were standing face to face resulting in the Plaintiff falling and hitting her face on the island counter is not believable nor supported by the evidence. Based on the location of the island counter and the positioning and severity of the injuries suffered by the Plaintiff, it is not conceivable that the Defendant pushed the Plaintiff and that she somehow hit the right side of her face on the island counter.
This Court gives no weight to the Minor Child's testimony that she witnessed the Defendant hitting the Plaintiff while the Plaintiff was lying on the kitchen floor, or to the Minor Child's testimony that she saw blood on the Defendant's shirt and hands, when Deputy Burke observed none. Although the Minor Child's testimony is more supportive of the Plaintiff's version of the facts than the Defendant's version, the Minor Child was clearly traumatized by the events of the evening. This Court concludes that her extreme emotional state at that time affects her credibility at the trial as to her recollection of the events that occurred more than three years ago.
Under either account of the incident, the Defendant clearly intended the action against the Plaintiff which resulted in her injury. Moreover, this Court finds that the Defendant likewise intended to injure the Plaintiff or believed that injury to the Plaintiff was substantially certain to follow from his actions. The Defendant argues to the contrary. He states that he merely wanted the Plaintiff to stop criticizing him about his extra-marital affair and he simply overreacted. The Defendant points out that the Plaintiff herself affirmed in her letter to the judge in the Criminal Case that the whole situation was an accident and that the Defendant did not mean to hurt her.
The circumstances leading up to the injury and the nature of the injury itself indicate otherwise. The Defendant assaulted the Plaintiff by hitting her several times in the face. The Defendant struck her with such force as to a break the Plaintiff's eye socket and shatter her cheekbone. The incident was prompted by the Defendant's animosity towards the Plaintiff for what he perceived as constant harassment about his extra-marital affair. As to the letter in the Criminal Case, the Plaintiff refuted her statements in the letter by her testimony. This Court finds the Plaintiff's explanation regarding the circumstances surrounding the letter to be credible and persuasive. The Plaintiff did not send the letter of her own volition; rather, she clearly was motivated by the plea from the Defendant's older daughter to mitigate issues in the Criminal Case.
There was nothing accidental about the injuries to the Plaintiff. The fact that the Defendant repeatedly attempted to stop the Minor Child from calling for help and did not permit Deputy Burke to enter the residence contradicts any "accident" theory. If the situation truly was an accident, common sense suggests that the Defendant would not have prevented others from rendering aid to the Plaintiff (and in fact would have rendered aid to the Plaintiff himself). Based on the force of the blows to the Plaintiff, the Plaintiff's loss of consciousness, the extent of her injuries and the animosity that the Defendant was harboring against the Plaintiff, it is clear that the Defendant intended to injure the Plaintiff or believed that injury to the Plaintiff was substantially certain to follow from his actions. See e.g., Wise v. Peterson (In re Peterson), 452 B.R. 203, 232 (Bankr. S.D. Tex 2011)(finding willful injury "given the high level of personal animosity between [the Debtor and the Plaintiff], the force of the punch leveled by the Debtor, the location of the punch, the Plaintiff's losing consciousness, the severity of the damage to the Plaintiff's body, and the damage to the Debtor's own hand"); Milutin v. Cappozzolli (In re Cappozolli), 2007 Bankr. LEXIS 1441 at *12, 2007 WL 1170622 at * 4 (Bankr. D. N.J. 2007)(finding willful injury where the debtor "knew with substantial certainty, that the consequences of hitting [the plaintiff] in the face with a bottle would be injurious to [the plaintiff] . . . A broken nose and all the related injuries that [the plaintiff] suffered is the least that [the debtor] could have expected and intended when she hit [the plaintiff] with a beer bottle."); Kleman v. Taylor (In re Taylor), 322 B.R. 306, 309 (Bankr. N.D. Ohio 2004)(finding that "the Defendant's actions were, in fact, 'willful' based upon the common sense notion that when one physically hits another with enough force to break another's jaw, an alternative, but plausible explanation is all but impossible to discern."). Accordingly, this Court finds that the Debtor willfully injured the Plaintiff within the meaning of § 523(a)(6).
Similarly, this Court finds that the Debtor's actions were without just cause or excuse. The Defendant's counter-point in this regard is akin to an assertion of self-defense or justifiable provocation. While there was no evidence that the Plaintiff was in anyway physically aggressive towards the Defendant or that she orally threatened him with any physical harm, the Defendant's argument seems to be that the Plaintiff was verbally combative in that she was provoking him by continuing to harass him about his extra-marital affair. Even in a situation where a person is defending oneself from physical harm, he or she is not entitled to retaliate in a manner that exceeds the force necessary to defend oneself from harm. In re Taylor, 322 B.R. at 309. In this case, there was no harm or even a threat of harm to the Defendant sufficient to warrant any physical retaliation let alone the excessive force asserted by the Defendant in striking the Plaintiff. Words alone seldom excuse a resort to violence. In re Trudeau, 35 B.R. 185, 187-88 (Bankr. D. Mass. 1983)("Even assuming that the plaintiff ridiculed the defendant just preceding the battery, that does not constitute an automatic defense. Anger, seldom if ever justifies violence.").
This Court notes that when editing the letter sent to the judge in the Criminal Case, the Plaintiff specifically removed any discussion of physical aggression on her part.
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While a finding of malice under § 523(a)(6) does not require ill-will or specific intent, it is very clear more than three years later that the Defendant was very angry with the Plaintiff at the time he hit her for berating him about his extra-marital affair. There was no justification or excuse for the Defendant's use of force under the facts of this case. Accordingly, this Court finds that the Debtor maliciously injured the Plaintiff within the meaning of § 523(a)(6).
V. Conclusion
In summary, the Plaintiff has established by a preponderance of the evidence that the Defendant, in causing injury to the Plaintiff, acted both willfully and maliciously within the meaning of § 523(a)(6). In reaching this conclusion, this Court has considered all of the evidence, exhibits and arguments of counsel, regardless of whether or not they are specifically referred to in this decision.
This Court will set a status conference by separate order to discuss further proceedings on the issue of damages.
IT IS SO ORDERED. Copy to: Arthur Richard, Esq.
Peter Rosenwald, Esq.
Stephen Meiser, Esq.