IN RE CLAYTON

PETER McNIFF, Bankruptcy Judge

On April 6, 2005, this case came before the court on the Objection of Thomas DeMunbrun to Thomas Jerry Clayton's claimed homestead exemption. The court concludes the exemption is invalid.

Jurisdiction

The court has jurisdiction over this contested matter pursuant to 28 U.S.C. §§ 157(a) 1334(a). This is a core proceeding under § 157 (b)(2)(A) (O).

Findings of Fact

The debtor, Mr. Clayton filed a chapter 13 case bankruptcy case, case no. 04-20912, on May 11, 2004. At that time, Mr. Clayton operated a used car lot on property he was purchasing under a contract for deed. Mr. Clayton resided on the car lot property and in his petition, he claimed a homestead exemption in the car lot property.

On November 2, 2004, Mr. Clayton voluntarily dismissed the chapter 13 case. The operation of the car lot produced insufficient income to fund a chapter 13 plan, and Mr. Clayton determined to surrender the real property upon which he claimed a homestead exemption.

On December 6, 2004, Mr. Clayton filed the instant chapter 7 petition. In this case, Mr. Clayton claims a homestead exemption in a cabin and rural real property located on Casper Mountain in Natrona County, Wyoming (Cabin).

The evidence at the hearing basically consisted of Mr. Clayton's testimony. Mr. Clayton built the Cabin in 1976, sold it in 1978 and bought it back in 1998. He was divorced in 2000 and was awarded the Cabin in the divorce.

After the divorce, Mr. Clayton resided at the car lot. On May 24, 2004, shortly after filing the chapter 13 case, Mr. Clayton remarried. He has lived with his new wife in her residence in Mills, Wyoming since that time, and during the entire period of this chapter 7 case. Mr. Clayton's mail is delivered to a post office box.

Mr. Clayton has personal belongings in the Cabin. During most winters, the Cabin is inaccessible except by snowshoes or a snowmobile. During the summer months, Mr. Clayton can drive to the Cabin.

The Cabin does not have electricity, running water or propane. Mr. Clayton has not spent the night at the Cabin in so long that he could not remember. He testified that it had been at least a year. However, on the date of the filing of the chapter 7 petition, Mr. Clayton spent four or five hours at the Cabin.

Conclusions

Mr. Clayton claims his homestead exemption through 11 U.S.C. § 522(b) and Wyo. Stat. Ann. § 1-20-101 (LexisNexis 2003). The validity of the exemption is determined as of the date of the filing of the petition. The Wyoming statute provides for a homestead exemption of $10,000, and under Wyo. Stat. Ann. § 1-20-102(a), a homestead is only valid to the extent it is occupied by the claimant.

The general principles of homestead law are not in dispute. The requirements to establish a homestead are occupancy and the intention with which the property is occupied. Wyo. Stat. Ann. § 1-20-102(a) (LexisNexis 2003); In re Snook, 134 B.R. 424, 425 (D. Kan. 1991). The debtor's homestead rights, including occupancy, are determined as of the date of the petition. 11 U.S.C. § 522 (b)(2)(A); In re Bruton, 167 B.R. 923 (Bankr. S.D. Cal. 1994). Mere ownership is not sufficient to establish a homestead. In re Mitchell, 132 B.R. 553, 558 (Bankr. W.D. Tex. 1991).

Occupancy is an elusive term, but most courts equate occupancy and residency. "Residence equates to domicile, the place adopted by a person as his place of habitation, and to which, whenever he is absent, he has the intention of returning." In re Snook, 134 B.R. at 425. Where actual occupancy is not present, there must be proof of intent to occupy and use the premises for homestead purposes. In re Mitchell, 132 B.R. at 558. Actual residency is required to demonstrate occupancy. In re Bennett, 192 B.R. 584, 588 (Bankr. D. Me. 1996). A homestead is established when actual physical presence is coupled with an intent to reside in the property permanently. In re Scott, 223 B.R. 32, 40 (Bankr. N.D.N.Y. 1998). Good faith actual occupancy is required along with intent to reside in the property. In re Robinson, 295 B.R. 147, 154 (10th Cir. BAP 2003).

The intention to create a homestead must be shown by overt evidence showing the intent to actually use the property as a home. In re Mitchell, 132 B.R. at 561. In this case, Mr. Clayton uses the Cabin for recreational purposes. He does not sleep there, he does not reside there on any consistent basis, and he does not live there. He did not live there on the date he filed his chapter 7 petition, even though he spent a few hours at the cabin. Thus, the court concludes that Mr. Clayton did not have the necessary intention to make the Cabin his home or his homestead, despite his statements to the contrary.

ACCORDINGLY, IT IS ORDERED that the claim of a homestead exemption is overruled, and the objection is sustained.