Opinion
20-32616 Adv. 21-3006
10-06-2022
In re: JOSEPH KUBINSKY, Debtors. v. Christine A. Leduc, Defendant. Joseph Kubinsky, Plaintiff,
Chapter 13
DECISION (1) DENYING THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND (2) GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOCS. 24 & 27)
GUY R. HUMPHREY UNITED STATES BANKRUPTCY JUDGE
This decision concerns the dischargeability of a debt owed to a Chapter 13 debtor's ex-spouse and the total allowed amount of the ex-spouse's pre-petition claim.
I. Procedural Background
On February 13, 2021 Joseph Kubinsky (the "Debtor") filed a petition for relief under Chapter 13 of the Bankruptcy Code. (Estate Doc. 1). Shortly thereafter the Debtor's ex-spouse, Christine A. Leduc ("Leduc") filed a proof of claim [3-1] claiming a priority debt in the total amount of $45,438.34 for child support and alimony arrearages. In addition, Leduc's claim included another $35,000 owed based upon an asserted property interest in the Debtor's Thrift Savings Plan ("TSP"). The Debtor objected to Leduc's proof of claim. Estate Doc. 55. The Chapter 13 Trustee also objected, arguing that the creditor did not provide statutory authority that the $35,000 was entitled to priority treatment. Estate Doc. 19.
"The Thrift Savings Plan is a tax-deferred retirement savings plan for Federal civilian employees . . . ." In re O'Neal, 462 B.R. 324, 331 (Bankr. Mass. 2011) (quoting In re Johnson, No. 09-16345-SSM, 2009 Bankr. LEXIS 3645, at *5 n. 2, 2009 WL 3763709, at *2 n. 2 (Bankr. E.D. Va. Nov. 6, 2009)). It has "savings and tax benefits" similar to 401(k) plans offered by private employers. Id.
The same legal issues raised by the claim objections are being adjudicated in this adversary proceeding. The Chapter 13 trustee has not sought to pursue his claim objection separately nor has he sought to intervene in this litigation.
In his second amended plan (the "Plan"), the Debtor proposed to pay ongoing child support to Leduc in the total amount of $10,573 each month and an estimated pre-petition arrearage of $29,237.77. Estate Doc. 46 at 5. This arrearage, as a priority debt, would be paid in full. Id. at 7. Leduc objected to various iterations of the Debtor's proposed Chapter 13 plans. Estate Docs. 11, 43, 52. Leduc's objections can be distilled to two basic arguments: 1) the child support arrearage is considerably higher than the Plan has proposed to pay and 2) the Debtor owes Leduc an additional $35,000 from his TSP and this debt is a property interest of Leduc that cannot be discharged. For these reasons, Leduc argued the Plan was not proposed in good faith. Leduc's objections, and separate objections of the Chapter 13 Trustee, were resolved by an agreed order that provided that the Debtor would modify the plan as necessary pending the resolution of this adversary proceeding. Estate Doc. 56. With that agreement, the Plan was confirmed. Estate Doc. 60.
In addition, Leduc moved for relief from stay "to determine the amount of Debtor's DSO arrearage and to issue an order regarding payment of same." Estate Doc. 22 at 1. That motion was adjourned pending the resolution of this adversary proceeding. Estate Doc. 48.
The Debtor filed this adversary proceeding asserting that Leduc's claim includes property settlements dischargeable in Chapter 13, but also amounts not owed at all. Leduc continues to assert the same positions articulated in her plan objections.
The parties filed cross-motions for summary judgment (docs. 24, 27), and the court took the matter under advisement.
II. Jurisdiction
This court has jurisdiction pursuant to 28 U.S.C. § 1334(b). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (B) and (I) and the Standing Order of Reference in this district. See Amended General Order No. 05-02 (S.D. Ohio Sept. 14, 2016). The parties have consented to this court entering final judgment. Doc. 7 at 2. See also In re Hart, 564 Fed. App'x. 773, 776 (6th Cir. 2014) (citing Waldman v. Stone, 698 F.3d 910, 920 (6th Cir. 2012) (bankruptcy court has constitutional authority to enter a money judgment on a dischargeability claim)).
III. Summary Judgment Standard
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) (made applicable in this adversary proceeding by Federal Rule of Bankruptcy Procedure 7056). A factual disagreement is genuine if "a rational trier of fact could find in favor of either party on the issue." SPC Plastics Corp. v. Griffith (In re Structurlite Plastics Corp.), 224 B.R. 27, 30 (B.A.P. 6th Cir. 1998) (citing Schaffer v. A.O. Smith Harvestore Prods., Inc., 74 F.3d 722, 727 (6th Cir. 1996)). A fact is material if it might affect the outcome of the suit under substantive law. Niecko v. Emro Mktg. Co., 973 F.2d 1296, 1304 (6th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When reviewing a motion for summary judgment, a court views all evidence and draws all inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., LTD. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
IV. Analysis
A. To the Extent it Still Exists, Leduc Holds an Equitable Property Interest Up to the Amount of $35,000 in the TSP.
On March 27, 2018 the Final Judgment of Dissolution of Marriage between the Debtor and Leduc (the "Decree") was entered by the Circuit Court of the Thirteenth Judicial Circuit, In and For Hillsborough County, Florida, Family Law Decision. Stipulated Doc. 1 (doc. 23). The Decree incorporated a Mediated Partial Settlement Agreement as to an Equitable Distribution (the "Agreement"). Id. at 39-63. The Agreement addressed the Debtor's TSP as follows:
The Parties agree that by agreement, the Equitable Distribution Payment reflected on attached Exhibit A has been negotiated and as such, the payment shall be $35,000.00. Husband has a Thrift Savings Plan. Wife is hereby entitled to $35,000 of said account as of April 27, 2017 ("valuation date"), subject to passive gains and losses from the valuation date to the date of segregation of Wife's benefits from the account. There are no loans against this account, and to the extent that there are, they shall not reduce the Wife's share of the account. The Court shall reserve jurisdiction to enter a Qualified Domestic Relations Order (hereafter "QDRO") to effectuate this transfer, if such an order is necessary. If a QDRO is necessary, the Parties agree that the Husband may select his attorney to prepare the order, and Husband shall pay the cost of hiring the QDRO preparer. Both parties shall cooperate in providing whatever documents the QDRO preparer requests, including account statements. The parties agree to re-execute any documents necessary to effectuate this paragraph at the request of the QDRO preparer. The QDRO will be entered contemporaneously with the entry of the Final Judgment of Dissolution of Marriage but in no event later than December 31, 2017. The parties agree that this payment resolves the division of the Husband's Thrift
Savings Plan and the Husband shall not owe any further amounts to the Wife relating to this plan.Agreement at 42 (Section F, "Equitable Distribution Equalizing Payment.") (emphasis added).
The Equitable Distribution Equalizing Payment provided that the parties had a total net worth subject to distribution of $286,898, with $195,051 to be distributed to the Debtor, and the other $91,847 to Leduc. Id. at 50 (Exhibit A, "Schedule of Equitable Distribution"). To equalize the distribution, the Debtor was required to pay $51,602 to Leduc. Id. However, at the bottom of the Schedule of Equitable Distribution, it also states that "[b]y agreement, [the $51,602] shall be reduced to $35,000, which Husband shall transfer to Wife pursuant to the parties' Partial Marital Settlement Agreement out of his Thrift Savings Plan via a qualified domestic relations order." Id.
The Debtor argues, in essence, two points. First, he asserts that the $35,000 was just a part of the total equitable distribution of assets and the Agreement only provided "that this payment could come from that account." Doc. 27 at 8. Therefore, the Debtor believes it is like any other property settlement in a divorce decree and is dischargeable in Chapter 13. Second, the Debtor argues that any equitable property interest of Leduc in the TSP, if it ever existed, does not presently exist because the TSP was "closed long ago." Id. Further, the Debtor argues, but notably does not assert in his affidavit, that Leduc was paid $35,000 when the TSP was closed.
It is correct that, unlike Chapter 7, in which any and all debts relating to a decree of divorce or dissolution are non-dischargeable, Chapter 13 debtors may discharge debts arising from a divorce decree or separation agreement that do not meet the definition of a domestic support obligation. 11 U.S.C. §§ 523(a)(5) & (15), and 1328(a)(2). A domestic support obligation (DSO) is defined as follows:
The term "domestic support obligation" means a debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that
accrues on that debt as provided under applicable nonbankruptcy law notwithstanding any other provision of this title, that is-
(A) owed to or recoverable by-
(i) a spouse, former spouse, or child of the debtor or such child's parent, legal guardian, or responsible relative; or (ii) a governmental unit;
(B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child's parent, without regard to whether such debt is expressly so designated;
(C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of-
(i) a separation agreement, divorce decree, or property settlement agreement; (ii) an order of a court of record; or
(iii) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and
(D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child's parent, legal guardian, or responsible relative for the purpose of collecting the debt.11 U.S.C. § 101(14A) (emphasis added).
Long-standing precedent confirms that debts not strictly defined in a decree as alimony and support may nevertheless be in the nature of such support. In re Calhoun, 715 F.2d 1103, 1107 (6th Cir. 1983). However, Leduc does not assert that her $35,000 interest in the Debtor's TSP is non-dischargeable as a DSO. Rather, Leduc is asserting that the TSP distribution promised to her in the Decree is not just a debt, but an equitable property interest that she holds, that this interest is not part of this bankruptcy estate and is non-dischargeable.
Leduc cites to McCafferty v. McCafferty (In re McCafferty), a decision arising out of a Chapter 7 case. 96 F.3d 192, 196 (6th Cir. 1996). The dispute concerned whether an ex-spouse's interest in the debtor's Ohio state teachers' pension was a dischargeable debt. Id. at 193. As an initial matter, the Sixth Circuit determined that the pension award would ordinarily be a dischargeable debt because it was not in the nature of support. Id. at 195. The Sixth Circuit, however, concluded that the ex-wife's pension interest was held for her in a constructive trust under Ohio law, and was not part of the debtor husband's bankruptcy estate. Id. at 199. The court further found that, under Ohio law, the ex-wife held equitable title to her interest in the pension designated in the divorce decree and the ex-husband only held "bare legal title" to that interest. Id. The court concluded that "[w]e find that Ms. McCafferty's award of pension benefits did not constitute property of the bankruptcy estate under 11 U.S.C. § 541 and was therefore not a dischargeable debt." Id. at 199-200. The Sixth Circuit re-stated this holding in a similar fact pattern in an unreported decision. In re Hines, 193 Fed. App'x. 391, 394-95 (6th Cir 2006).
Florida law recognizes a constructive trust can be imposed under appropriate circumstances. In Maio v. Clarke, the court set out the elements for such a trust: "[A] constructive trust is a remedial device with dual objectives: to restore property to the rightful owner and to prevent unjust enrichment." 255 So.3d 369, 371 (Fla. Dist. Ct. App. 2018) (quoting Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 125 (Fla. Dist. Ct. App. 1996)). "To impose a constructive trust, there must be (1) a promise, express or implied, (2) transfer of the property and reliance thereon, (3) a confidential relationship and (4) unjust enrichment." Id. A constructive trust must be proven by clear and convincing evidence. Saporta. v. Saporta, 766 So.2d 379, 382 (Fla. Dist. Ct. App. 2000). In this instance, the Debtor agreed to transfer this $35,000 to Leduc and may not have complied with the Decree by transferring this interest out of the TSP account to her. If he did not comply, his intent at this stage of the litigation is unclear. "[A] court may impose a constructive trust when property is acquired through fraud." Williams v. Stanford, 977 So.2d. 722, 730 (Dist. Ct. App. Fla. 2008) (citation omitted). In addition, "Florida courts have imposed constructive trusts in divorce proceedings to create an equitable outcome." Silvas v. Silvas, 334 So.3d 630, 632 (Fla. Dist. Ct. App. 2022) (citation omitted). See also Brown v. Poole, 261 So.3d 708, 710-11 (Fla. Dist. Ct. App. 2018) (affirming the imposition of a constructive trust in insurance proceeds). Florida law also makes it clear that upon a judgment of divorce, property rights are defined and settled. Davis v. Dieujuste, 496 So.2d 806, 809 (Fla. 1986); Klinka v. Klinka, 959 So.2d 383, 385-86 (Fla. Dist. Ct. App. 2007).
These legal principles have been applied in the context of a bankruptcy case interpreting divorce decrees under Florida law. In re Petty, 333 B.R. 472, 482 (Bankr. M.D. Fla. 2005) (In a Florida divorce, ex-spouse's interest in military retirement is not subject to dischargeability under § 523, but rather is a separate property interest of the ex-spouse). See also In re Hicks, 530 B.R. 912, 919 (Bankr. M.D. Fla. 2015) (Court finding under Georgia law, which the court determined was similar to Florida law, military retirement pay award to ex-wife is her separate property interest); In re Trout, No. 05-19591/JHW, 2006 WL 4452826, at *3, 2006 Bankr. LEXIS 4103, at *9 (Bankr. D.N.J. Feb. 1, 2006) ("The court clearly identified the source of the funds for the equitable distribution, and directed the husband to turn over the funds, subject to some final calculations. This decision was upheld on appeal. At that point, the debtor held nothing more than bare legal title for his ex-wife.")
The Debtor recognizes the legal principle in the holding of McCafferty but suggests that the TSP was merely a source of funds to pay the equitable division of the marital property. However, the plain language of the Agreement specifically accounted for this interest, required it to be turned over, and further provided, if it was not turned over as required, for a QDRO (Qualified Domestic Relations Order) to be set up at the Debtor's expense. Further, the court is not dissuaded in its view by the fact that a QDRO was never entered. The lack of a QDRO only affects the obligation of a plan administrator to distribute funds, but not the property rights of the beneficiary interest of an ex-spouse. In re Combs, 435 B.R. 467, 474 (Bankr. E.D. Mich. 2010); Devenger v. Forant (In re Forant), 331 B.R. 151, 158 (Bankr. D. Vt. 2004) (similar). In sum, as in McCafferty, the $35,000 interest in the TSP is or was a property interest for which Leduc holds or held equitable title. To the extent the TSP remains in existence, Leduc is the beneficiary of a constructive trust in the amount of $35,000 under McCafferty and Florida law, and her interest in the TSP is not a dischargeable debt.
For the TSP, the analogous concept to a QDRO is a QBRCO (Qualifying Retirement Benefits Court Order), defined by 5 CFR § 1653.2. See In re Warner, 570 B.R. 582, 588 (Bankr.N.D.Ohio 2017). Federal law concerning the TSP includes an anti-alienation clause and therefore such accounts generally cannot be assigned, attached, or levied against. Id. (citing 5 U.S.C. § 8437(g)). This restriction on transfer removes a debtor's interest in the TSP from property of the bankruptcy state. 11 U.S.C. § 541(c)(2). See also Patterson v. Shumate, 504 U.S. 753, 765-66 (1992) (anti-alienation provision under ERISA is covered by § 541(c)(2)). However, exceptions to the anti-alienation clause for a TSP account exist. The pertinent exception here is "any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation[.]" 5 U.S.C. § 8467(a)(1).
B. The Court Lacks Evidentiary and Legal Bases to Determine the Parties' Rights Relating to Leduc's Equitable Interest in the TSP in the Event the TSP No Longer Exists in at Least the Amount of $35,000.
The evidence supporting the motions for summary judgment, specifically the affidavits of the parties, establishes that the $35,000 payment to Leduc from the TSP did not occur. Although the record lacks any evidence on the question, the Debtor, albeit in argument, stated that the TSP account is closed and therefore any equitable interest of Leduc no longer exists. The Debtor does not provide any evidence as to the circumstances under which the TSP account was closed and what happened to those funds. For example, it is unknown to the court if the account was liquidated to cash (despite any applicable tax penalty), or, rather, if it was transferred to another retirement account. The court simply has no evidence on those issues.
The Debtor argues in his memorandum that the property interest may have been paid. However, the Debtor did not provide evidence through his affidavit or otherwise that the $35,000 was paid and Leduc in her affidavit specifically denied that the $35,000 was paid. Statements in legal memoranda or arguments otherwise made by counsel do not constitute evidence for Rule 56 purposes and, therefore, there is no material issue of fact as to whether the $35,000 was paid - the uncontradicted evidence establishes that it was not. See Fed.R.Civ.P. 56(c)(1) (incorporated through Federal Rule of Bankruptcy Procedure 7056).
May the Debtor avoid the consequences of a constructive trust on this property interest award in the Decree by closing the TSP account? Florida law suggests that the imposition of a constructive trust in such circumstances may require tracing to determine if the res is "specifically identifiable" and not comingled with other funds. Stand Up for Animals, Inc. v. Monroe County, 69 So.3d 1011, 1013-14 (Fla. Dist. Ct. App. 2011). See also Smith v. Smith, 108 So.2d 761, 763-64 (Fla. 1959) (in case involving an unmarried couple, imposing constructive trust in property in favor of a woman when insurance proceeds were used to acquire the real estate and it was titled in the man's name); Martin v. Martin, 787 So.2d 951, 952 (Fla. Dist. Ct. App. 2001) (constructive trust could not be imposed from funds in a commingled bank account).
Without anything in the summary judgment record as to what occurred with the TSP, the court cannot determine, without a trial, if a constructive trust may still be imposed in the $35,000 in these circumstances and whether Leduc is entitled to a finding that she is owed $35,000 as a non-dischargeable debt.
Further, the Debtor also argues that Leduc did not seek a determination that the claim for $35,000 is non-dischargeable under § 523(a)(2) or (4), the deadline for such a count has passed and, therefore, any claim for the $35,000 interest in the TSP will be discharged through the Debtor's Plan, assuming the Debtor completes his payments and obligations under the Plan and obtains a discharge. The court can take judicial notice that such a count has not been pursued, and the deadline is defined by rule. See Fed.R.Bankr.P. 4007(c) (fixing the deadline for filing a dischargeability action under § 523(a)(2) and (4)). However, Leduc suggests that such claims may still be raised due to when she became aware of the status of the TSP account. Due to the lack of evidence on the status of the TSP, the court cannot determine any further legal issues arising out of its possible "closing."
C. Dispute Concerning Child Support and Reimbursable Expenses
The remainder of the dispute between the parties involves the extent of the pre-petition balance owed Leduc and whether all of that balance is non-dischargeable.
Leduc asserts that the following debts are non-dischargeable domestic support obligations: 1) a child support arrearage of $5,007.21 as of the petition date; 2) an alimony arrearage of $28,720.48; and 3) $12,934.25 in funds expended for the children's extracurricular activities, medical expenses, educational expenses, and travel. As far as the child support arrearage, the Debtor asserts that the accrued interest on the pre-petition child support is dischargeable. Second, the Debtor believes that a material issue of fact exits as to the amount owed for child support based on reimbursable expenses for the children and also that Leduc has charged for expenses the Decree and Parenting Plan do not allow. As detailed below, the court is resolving, as a matter of law, various interpretation questions concerning the requirements of the Parenting Plan and the Decree but the record leaves factual ambiguities as to the ultimate amount owed that, if unresolved by the parties, would require a trial.
1. Interest on the Child Support Arrearage is Non-Dischargeable.
Any pre-petition interest is part of the DSO and is non-dischargeable. In re Moore-McKinney, 603 B.R. 855, 860-61 (Bankr. N.D.Ga. 2019) ("A DSO, as the Bankruptcy Code now defines the term, includes not only a child support arrearage but also interest accruing on the arrearage under applicable nonbankruptcy law."). See also Vitt v. Rodriguez, 960 So.2d 47, 48 (Fla. Dist. Ct. App. 2007) ("The entitlement to interest in the child support context is well established in Florida law."). This is consistent with the parties' agreement providing for statutory interest on the Debtor's unpaid child support. Doc. 23 at 66, "Stipulated Supplemental Final Order Resolving Outstanding Interest Issues." As to any material issue of fact, Leduc stated, in her affidavit filed, that the pre-petition DSO arrearage totaled $4,684.45, and with interest a pre-petition balance of $5,007.21. Doc. 24, Leduc Affidavit, ¶ 3. That figure is confirmed in the state court stipulation finding that the Debtor owed $6,315.75 and Leduc owed $1,631.30, and therefore, the net figure owed Leduc was $4,684.75. Id. at ¶ 9. The Debtor has not presented any evidence suggesting a different figure. The court determines the pre-petition DSO arrearage is $5,007.21.
2. Reimbursement of Leduc for the Children's Extracurricular Activities is Required under the Decree.
The parties agree that the Parenting Plan required the Debtor to reimburse Leduc for 60% of agreed upon extra-curricular activities. Those activities are gymnastics and piano for the parties' daughter, and baseball, guitar, and piano for their sons. Leduc states in her affidavit that the total amount due from June 2018 through October 2020 is $12,934.35. The Debtor states that some of the extracurricular expenses were not agreed upon by the parties.
The Parenting Plan addresses extra-curricular activities. The parties are disputing what it means to agree upon an extra-curricular activity. The Debtor interprets it as each activity within a category. For example, if a child switched from one piano program to another, the parties would both have to approve it. Leduc states that the intent is for any piano expense to be considered "approved" by the parties. The Decree states:
The Husband has requested that he only be required to pay a maximum of $250 per month for the children's agreed upon extracurricular activities. The court DENIES that request. It is therefore ORDERED, the fees, costs, and expenses of the mutually agreed upon extra-curricular activities, including all uniforms and equipment, shall be paid in accordance with each parent's income percentages under the Florida Child Support Guidelines determined herein and as defined in the Parenting Plan (Father 60% Mother 40%).Doc. 23 at 36 (Decree at 34, F. Expenses for Mutually Agreed Extracurricular Activities).
The Parenting Plan provides further detail:
3. Extra-curricular Activities (Choose all that apply)
[x] Either parent may register the children and allow them to participate in the activity of the children's choice, as long as the activity does not interfere with the current time-sharing parent's schedule. Further, time-sharing parent who did not register the child is not required to allow the child to participate in the activity during their time-sharing. Moreover, if a parent enrolls a child in an activity not mutually agreed upon, the enrolling parent shall be solely responsible for all fees, costs and expenses of the activity.
[x] The children shall continue participating in their current activities. The parties' daughter shall continue in gymnastics and piano and the parties' sons shall continue baseball, guitar and piano. The parents must mutually agree, in writing, to enroll the children in any other activities. Agreement for the child's participation in other activities shall not be unreasonably withheld.
[x] The parents with the minor children shall transport the minor children to and/or from all mutually agreed upon extra-curricular activities, providing all necessary uniforms and equipment within the parent's possession. However, the Father shall not be required to transport the children to activities occurring in Florida while the children are timesharing with the Father in Arizona or any other state outside of Florida.
[x] The fees, costs and expenses of the mutually agreed upon extra-curricular activities, including all uniforms and equipment, shall be paid in accordance with each parent's income percentages under the Florida Child Support Guidelines determined by the Court in any child support order.Id. at 53.
In reviewing the plain meaning of the Decree and Parenting Plan, this court determines that the extra-curricular expense within an approved category is required to be reimbursed by the Debtor at 60% of the expenses. Leduc was not required to seek approval of any specific expense within an approved activity category. Therefore, the court finds that the Debtor is responsible for all of the $9,644.71 of extracurricular activity expenses he disputed. See Debtor Exhibit 2 at 10-13. As these expenses are in the nature of child support and therefore the unpaid reimbursement constitutes a non-dischargeable domestic support obligation.
3. Reimbursement of Educational Expenses is Required Under the Decree.
The Debtor also disputes $2,152.15 of educational expenses, arguing these expenses were to be paid out of the child support payment. Debtor Affidavit ¶ 7 ("The final divorce decree, incorporated mutual settlement agreement and Parenting Plan did not award Ms. [Leduc] any contribution for school expenses or fees and I have not mutually agreed, in writing, to pay for the same."). See also Debtor Affidavit ¶ 10 (stating that the Debtor need not pay these expenses).
The Parenting Plan provides that "Mother shall be allowed to continue to home school the children. The parties shall share the expenses related to the children's home schooling as the Court directs in its final child support order in this case." Doc. 23 at 56 (Parenting Plan at IX). The plain meaning of "share the expenses" suggests the same division of these expenses. Such expenses would be paid by the Debtor, like other reimbursable expenses, at 60%, pursuant to the Parenting Plan and Child Support Guidelines. See Doc. 23 at 62 (Child Support Guidelines Worksheet). The $2,152 in educational expenses constitute non-dischargeable child support, separate and apart from the monthly award for such support.
4. Reimbursement of Out-of-Pocket Medical Expenses is Required Under the Decree.
The parties also dispute certain medical expenses. The Decree provides that reasonable and necessary medical expenses unpaid by insurance shall be paid according to the child support guidelines. Doc. 23 at 35 (Decree at 33). Under those guidelines, the parties agreed to a similar 60/40 split of these and other expenses, consistent with the Child Support guidelines. This requirement is separately defined by the Decree from the issue of health insurance. The Debtor agrees that he is responsible for insurance until the children are emancipated, but refers to "optional insurance" or "insurance costs" that he did not approve. Doc. 34 at 6-7. However, the disputed amount is not concerning some additional unauthorized insurance. The evidence shows the charges in dispute are for out-of-pocket medical expenses not covered by insurance. The Decree is unambiguous that the Debtor must separately pay 60% of these expenses as well.
5. Credits for Payment of Expenses
Finally, the Debtor lists a series of expenses, totaling $1,102.85, that he states were paid. Doc. 27-2 at 7-8. In support of this argument, he presents a chart with various expenses and includes the 60% of these expenses that he was required to pay. The Debtor states in his affidavit that Leduc's records are "faulty" and that "he reviewed [] bank statements and accounting in this matter and have determined I paid leave 58 payments with reimbursable expenses totaling $1,102.85, that Ms. [Leduc's] spreadsheet fails to credit me with." Debtor affidavit ¶ 11. The submitted bank statements include the following transfers to Leduc:
Suncoast Credit Union 10.4.18
$92.32
Suncoast Credit Union 10.9.18
$1,000.00
Suncoast Credit Union 8.9.19
$804.26
Suncoast Credit Union 7.8.19
$910.13
Suncoast Credit Union 6.10.19
$619.06
Suncoast Credit Union 5.8.19
$400.00
Suncoast Credit Union 4.8.19
$920.98
Suncoast Credit Union 3.6.19
$649.07
Suncoast Credit Union 2.12.19
$70.10
Suncoast Credit Union 12.5.18
$700.00
Suncoast Credit Union 11.9.18
$1,000.00
Pimafederal Credit Union 9.16.19
$228.77
Doc. 27 at 3-18.
Pimafederal Credit Union 5.9.19
$222.67
Pimafederal Credit Union 12.7.19
$46.19
Pimafederal Credit Union 12.10.19
$1,000.00
Pimafederal Credit Union 9.10.18
$1,000.00
Pimafederal Credit Union 9.27.18
$1,000.00
The difficulty with this portion of the Debtor's evidence is the payments listed in the bank statements could relate to any payments to Leduc. Without some other evidence, the court cannot determine from this record if any of these payments relate to the disputed $1,102.85 or to some other amount for which the Debtor was responsible. However, the Debtor also attaches a chart of $1,102.85 listing specific items that he claims he does not owe, although it is not clear what underlying records the Debtor used to prepare these summaries. Leduc also has a chart which she prepared and copies of receipts for these expenses, but as further discussed below, that evidence has some inconsistencies with Leduc's proof of claim, which has never been amended.
Federal Rule of Evidence 1006 provides that "[t]he proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable place or time. And the court may order the proponent to produce them in court." See United States v. Jamieson:
We have held that Rule 1006 imposes five requirements for the admission of a summary: (1) the underlying documents must be so voluminous that they cannot be conveniently examined in court, (2) the proponent of the summary must have made the documents available for examination or copying at a reasonable time and place, (3) the underlying documents must be admissible in evidence, (4) the summary must be accurate and nonprejudicial, and (5) the summary must be properly introduced through the testimony of a witness who supervised its preparation.427 F.3d 394, 409 (6th Cir. 2005).
6. Other Factual Discrepancies in the Parties' Evidence Must be Resolved to Determine the Allowed Amount of the Leduc Claim.
The dueling affidavits and summaries of the parties leave certain ambiguities and contradictions that, if unresolved by an agreement of the parties, will need to be determined at trial. First, Leduc's chart does not completely match proof of claim 3-1 and that claim may need to be amended. For example, the proof of claim lists $376.82 owed for reimbursable expenses, but Leduc's chart submitted with her summary judgment motion lists $325.80. These differences may reflect payments made between the time of the filing of the proof of claim in February 2021 and the time of the summary judgment motion, June 2022. However, these factual issues must be resolved by agreement of the parties or trial for the court to determine the ultimate allowed amount of Leduc's claim in this Chapter 13 case.
From the court's independent review, the following months have lower figures for unpaid reimbursable expenses than proof of claim 3-1: all months from June 2018 through July 2019, and also September and October 2020. The court calculated the difference at $1,999.30. The Debtor states, without specificity, that Leduc has $1,951.58 in reimbursable expenses not documented in her proof of claim. It is unclear if the figures in the summary judgment motion, lower than the proof of claim, has resolved this documentation issue.
V. Conclusion
For all these reasons, the Debtor's motion for summary judgment is denied and Leduc's motion for summary judgment is granted in part and denied in part. The court will enter an order consistent with this decision.
Copies to:
Counsel for the Plaintiff
Counsel for the Defendant