HENLEY HUNTER, Bankruptcy Judge
Before the Court is the Motion for Summary Judgment filed by L. Alan Egleston. This is a Core Proceeding pursuant to 28 U.S.C. § 157(b)(2)(I) and (J). This Court has jurisdiction pursuant to 28 U.S.C. § 1334 and by virtue of the reference by the District Court pursuant to Local District Court Rule 83.41.1, incorporated into Local Bankruptcy Rule 9029.3. No party at interest has filed a Motion to Withdraw the Reference to the bankruptcy court, nor has the District Court done so on its own motion. This Court makes the following findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. For the following reasons, the Motion for Summary Judgment is GRANTED.
Procedural History
This Court has heretofore summarized the difficult and protracted history of this litigation in its Reasons for Decision on a Motion to Abstain, which reasons are incorporated herein by reference, so without restating, the Court briefly summarizes, as follows.
Dr. L. Alan Egleston, moved to Louisiana and filed his Chapter 7 petition on March 14, 1994. In re: Egleston, 94-BK-30276. Dr. Egleston and Vicki Egleston married and lived in Pennsylvania, but separated and were subject to a Consent Order (or "Marital Settlement Agreement") dated September 14, 1993, which provided for the distribution of marital property and payment of alimony. See Egleston v. Egleston, No. 937 of 1992(D) (Court of Common Pleas of Westmoreland County, Pennsylvania. On June 24, 1994, plaintiff's ex-wife, the defendant herein, Ms. Vicki Egleston, filed an adversary proceeding to determine the dischargeability of her divorce and property settlement claims arising under that Consent Order, under the provisions of 11 U.S.C 523(a)(5). Vicki Egleston v. L. Alan Egleston, 94-AP-3035. Meanwhile, plaintiff received his discharge on July 13, 1994.
The substance of that Order was described as follows by the U.S. Fifth Circuit Court of Appeals: "The Pennsylvania Order contains twenty-six numbered paragraphs addressing myriad issues, including equitable distribution of property and payment of alimony. Paragraph Nine of the Pennsylvania Order is the only section that specifically mentions alimony. It requires Dr. Egleston to pay to Vicki Egleston $4,000 per month from October 1, 1993 to December 31, 1993. The payments resume on May 1, 1994, and continue for 128 months, for a total of 131 months. Paragraph Eight concerns Dr. Egleston's agreement to sell his medical practice in Pennsylvania to another medical group. It provides that $37,500 from the sale shall be paid to Vicki Egleston at the signing of the agreement "as equitable distribution." It also provides that the buyers shall pay to Vicki Egleston a portion of the remaining sale price in six consecutive monthly payments of $5,000 "as equitable distribution," commencing January 1, 1994." Egleston v. Egleston, 95-30641, p. 2 (5th Cir. 2/5/96) (unpublished).
Judgment was entered in the adversary proceeding on December 14, 1994, stating, "the 131 payments of $4,000.00 each provided for in paragraph 9 of the said judgment of the Court of Common Peas of Westmoreland County, Pennsylvania, are deemed to be alimony and are hereby excepted from the discharge of the debtor in these proceedings, subject to a credit of 2 payments previously made by the Defendant-Debtor. The Court rejects the Plaintiff's request to except from discharge, her remaining claims under said Judgment." Vicki Egleston v. L. Alan Egleston, 94-AP-3035, Doc. 12 (emphasis supplied). Vicki Egleston appealed to the United States District Court for the Western District of Louisiana, which affirmed the decision of the bankruptcy court, finding that "only the obligation imposed by Paragraph Nine of the Consent Order is alimony and therefore non-dischargeable. Each and every other obligation arising under the Consent Order is not alimony, maintenance or support and therefore does not implicate 11 U.S.C. § 523(a)(5)." However, that decision was appealed by Vicki Egleston to the Fifth Circuit Court of Appeals.
Relying on the jurisprudence of In re Dennis and In re Joseph, the Appellate Court held that five of the six monthly payments required by Paragraph Eight in the amount of $4,000 each were in lieu of the alimony required by Paragraph Nine, and deemed those payments alimony excepted from discharge under § 523(a)(5), but that the remaining $1,000 from each of the five payments and the $5,000 from the sixth payment do not constitute alimony, thus, they are not excepted from discharge under § 523(a)(5). Egleston v. Egleston, 95-30641 (5th Cir. 2/5/96) (unpublished). Those five payments were added to the 131 payments required by Paragraph Nine for a total of 136 payments in an amended judgment of the Bankruptcy Court on April 16, 1996. The Court clarified that the sixth payment of $5,000 due in June of 1994 was and is considered a portion of the property settlement due Ms. Egleston, and as such, is discharged.
In re Dennis, 25 F.3d 274 (5th Cir. 1994), cert. denied, 513 U.S. 1081, 115 S.Ct. 732.
In re Joseph, 16 F.3d 86 (5th Cir. 1994).
This portion of these reasons was contained in this Court's Reasons for Decision on a Motion to Abstain dated April 12, 2002, and April 23, 2002. Those reasons were appealed to the district court and were affirmed by the District Court by a ruling dated October 15, 2002. The reasons of this Court and of the District Court on Appeal are incorporated by reference.
Thereafter, Dr. Egleston filed Adversary Proceeding No. 01-3042 on November 28, 2001. It is alleged in this complaint that Vicki Egleston continued her pursuit of the amounts awarded in the Consent Order of September 14, 1993, in No. 937 of 1992(D) of the Court of Common Pleas of Westmoreland County, Pennsylvania by obtaining a judgment dated July 9, 2001, in violation of the injunction against such action in § 524(a)(2). Consequently, Dr. Egleston seeks to have this Court void portions of the July 9, 2001 judgment, awarding Vicki Egleston $162,631.42, under § 524(a)(1); find her in contempt of court for the alleged violation; enjoin her from future attempts to recover any amounts owed pursuant to the Consent Order of September 14, 1993; and award damages for violation of § 524(a)(2).
The Court also notes that although Dr. Egleston alleges Vicki Egleston initiated the litigation in Pennsylvania, the Order and Opinion of that court dated July 9, 2001, seems to show that it was Dr. Egleston who first filed the state court proceeding by filing a Petition for Contempt and a Motion to Stay the alimony obligation. However, because it also states that Vicki Egleston filed her "original petition for contempt" in June of 2000, despite the fact that contempt orders were issued by that court 1998, the record far from clear as to who initiated the involvement of the Court of Common Pleas after the bankruptcy and related adversary cases were closed.
In an amended complaint filed on March 1, 2002, Dr. Egleston further alleges that orders issued by the Pennsylvania Court on January 16, 1998 and June 18, 1998 also grant Vicki Egleston damages for failure to pay sums owed under the Consent Order of September 14, 1993 that are specifically not considered alimony in accordance with the prior rulings of this Court, as modified on appeal. Those sums are: $65,000.00 for the loss of equity in real property (due to foreclosure on the former family home); $10,000.00 for the loss of personal property; $20,000.00 for the loss of equity in an automobile; and $42,275.00 in attorney's fees. The most important observation regarding these Pennsylvania court orders is that the judicial debts they create all stem from the original obligations created by the 1993 Settlement Agreement.
Reasons for Decision, April 12, 2002, Motion to Abstain, pages 1-4.
In response, Vicki Egleston filed a Motion to Abstain, and a Motion for Reconsideration of the Assessment for Counsel Fees and Expenses and loss of personal property incurred in the bankruptcy proceedings. In the January 16, 1998 Order, the Pennsylvania court held Dr. Egleston in contempt of court and ordered him to pay Vicki Egleston $77,900.00 plus 6% interest per annum from January 1, 1994. The Order of that court dated June 18, 1998 also finds Dr. Egleston in contempt of court and directs him to pay Vicki Egleston various amounts listed herein below. The Pennsylvania court, in the July 9, 2001 order, held that Dr. Egleston did not prove by a preponderance of the evidence that the alimony obligation was a hardship, and thus, the Motion for a Stay was denied, and he was ordered to continue paying $6,500.00 per month to Vicki Egleston, specified as $4,000.00 in alimony and $2,500.00 toward his "equitable distribution" obligation, plus $4,500.00 in attorneys fees. The Court found Dr. Egleston in Contempt for "willful noncompliance of [sic] the parties' September 14, 1993 Marital Settlement Agreement" and the Orders of the Court dated January 16, 1998 and June 18, 1998, and awarded Vicki Egleston $162,631.42.
The court's monetary award is broken down as follows:
a. $6,000.00 in expenses incurred by Vicki Egleston in "protecting her interests in [Dr. Egleston's] bankruptcy proceedings, . . . pursuant to the Order of the Court dated June 18, 1998."
b. $65,000.00 in loss of equity in real estate, the former family residence, pursuant to the Order of the Court dated June 18, 1998.
c. $10,000.00 in loss of personal property contained in the family residence pursuant to the Order of the Court dated June 18, 1998.
d. $32,251.27 in interest accumulated on the equitable distribution amount of $77,900.00, representing the value of Dr. Egleston's medical practice.
e. Less $12,894.85 received by Vicki Egleston from the sale of Dr. Egleston's father's home.
This Court denied the Motion to abstain. Vicki M. Egleston filed a Motion for Reconsideration, which this Court denied by Reasons dated April 23, 2002. Those reasons are also incorporated by reference. Vicki M. Egleston then appealed to the district court, which affirmed the holding by an opinion dated October 15, 2002, which is also incorporated herein by reference. Vicki M. Egleston v. L. Alan Egleston, Civil Action No. 02-1108., Opinion October 15, 2002.
While those proceedings were pending, L. Alan Egleston and his current spouse, Sharon Michaels Egleston, filed yet another bankruptcy case in the Western District of Louisiana, Case No. 02-11796, on June 4, 2002. Undaunted, Vicki Egleston filed another adversary proceeding, No. 02-1040, again raising the dischargeability issues as to the various awards post-discharge by the Pennsylvania Court, with the addition of an additional arrearage charge that was added to the debtordefendant's account at the Westmoreland County Domestic Relations Office in the amount of $77,900.00.
Further, Vicki Egleston asserted the claim that neither Alan Egleston nor Sharon Egleston, his current spouse and co-debtor, were entitled to a discharge because of they concealed assets with the intention to hinder defraud creditors or officers of the estate and failed to keep records and file accurate schedules and statements. Alan Egleston and Sharon Egleston filed an answer with Sharon Egleston moving for dismissal as to her and judgment for attorney fees and expenses.
On December 13, 2003, L. Alan Egleston filed a Motion for Summary Judgment and a statement of material facts. The thrust of the motion is that, despite various alleged defects in the Pennsylvania proceedings, that Court was essentially correct in its factual determinations as to the amount of unpaid alimony. Dr. Egleston asserted that the amount should be fixed at $52,005.15, after various credits (including a payment made by him from the proceeds of the sale of his father's home). He asserted that only these amounts are nondischargeable. On February 2, 2004, Vicki Egleston filed an opposition to the Motion for Summary Judgment. Also filed on her behalf was an opposition consisting only of a declaration by her counsel and documents from the Pennsylvania Court.
This document consisted of an affidavit by Mr. Shelton, Vicki Egleston's Louisiana Counsel, the most recent opinion of the Pennsylvania court and the transcript of that hearing. In his affidavit, Mr Shelton opines as to what matters the Pennsylvania court could or could not determine, based on its understanding (or lack thereof) of the proceedings in this Court.
A hearing was ultimately scheduled for February 4, 2004. At that hearing, Counsel for L. Alan Egleston and Vicki Egleston agreed to supplement the Motions for Summary Judgment by additional submissions, at the conclusion of which, the matter would be deemed submitted for a decision.
The final submission was filed March 15, 2004, and consists of a declaration by Sharon Michaels Egleston.
Applicable Law
Rule 56 of the Federal Rules of Civil Procedure, made applicable to adversary proceedings pursuant to Bankruptcy Rule 7056, provides in pertinent part: "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to judgment as a matter of law." Although summary judgment is a useful device, it must be used cautiously or it may lead to drastic and lethal results. Murrell v. Bennett, 615 F.2d 306 (5th Cir. 1980).
In ruling on a motion for summary judgment, the evidence should be considered in the light most favorable to the non-movant. Trevino v. Celanese Corp., 701 F. 2d 397 (5th Cir. 1983). However, the opponent "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986).
It should be noted here that a part of the relief sought by Dr. Egleston in his complaints relates to the alleged violation of the discharge injunction under 11 U.S.C. § 524. This Court held in the original reasons for decision on the motion to abstain that matters related to the discharge injunction are core proceedings, and the district court affirmed this finding. Although courts are divided as to whether damages may be rewarded for the violation of the discharge injunction, this Court has held that such an action exists. Walker v. MM Dodge, 180 B.R. 834 (Bankr. W.D. LA 1995). The discharge injunction renders null and void any judgment entered on a discharged debt in any forum other than the bankruptcy court, regardless of whether the debtor raises the discharge as an affirmative defense.
Discussion
It should be no surprise that the parties strongly disagree. These reasons have already noted that Dr. Egleston asserts that the matter is simply a mathematical computation, consisting of taking the amounts determined to be non-nondischargeable a decade ago, and subtracting the amounts paid. Vicki Egleston, however, continues to insist that amounts that Dr. Egleston was ordered to pay for contempt remain at issue, in addition to equity she allegedly lost in the family home, travel expenses to litigate in Louisiana, compensation for property she sold to have money to live on, due to his nonpayment, and attorney fees she incurred in pursing collection. She also seeks sums for the sale of the medical practice in Pennsylvania.
Declaration of Vicki M. Marie Egleston, filed February 4, 2004, docket no. 61.
In her memorandum in opposition, Vicki M. Egleston notes that an opinion and order dated September 17, 2003, fixed the remaining alimony due by Dr. Egleston at the sum of $96,405.15. However, that Court left open a final determination of various amounts due under prior orders of the Court, namely those dated January 16, 1998, June 18, 1998, and April 20, 2001, observing:
Previous Orders of Court entered on this case reflect that Judge Marker ordered the Plaintiff to pay these amounts
as a sanction for his failure to pay alimony. The defendant can certainly make this argument in bankruptcy court, but until such time as the bankruptcy court makes this determination, this Court will not address any action concerning equitable distribution, nor enforcement of this judgment.
Doc. 61, Exhibit A, Opinion and Order of the Court September 17, 2003, p. 9 (emphasis supplied)
Exhibit A to the Declaration of Vicki M. Egleston, docket no. 61, is a copy of the proceedings in the Pennsylvania Court. It includes the Opinion and Order of the Court dated September 17, 2003. The attached Order fixed the debt balance at $96,405.15, and prohibited further collection of any amounts above that figure, with any adjustment to be by further order of the Court.
In short, according to Vicki M. Egleston, the correct starting point in the mathematical equation distills to the sum of $96,405.15, which the Pennsylvania Court determined to be due as of September 17, 2003, to which she opines, credit should be given for subsequent payments totaling $20,000.00, for a net of $76,405.15. However, she opines that this Court must now determine whether the various amounts that Judge Marker ordered on account of Dr. Egleston's failure to pay alimony were discharged in either the prior case or the current case, and clearly seeks to have those added to the total.
Supplemental Memorandum In Opposition to Motion for Summary Judgment Filed by Leon Alan Egleston, docket no. 62.
She argues that L. Alan Egleston incurred obligations for compensatory damages resulting from his conduct in the Pennsylvania Court after filing his first bankruptcy petition March 14, 1994, and cites Pennsylvania Law dealing with Support Orders and their enforcement and the civil contempt powers of the Courts of that state. The various contempt orders and orders awarding damages constitute support orders, and thus, the memorandum asserts, should be considered as such under 11 U.S.C. § 523(a)(5).
This Court's Reasons for Decision on the Motion to Abstain noted that the Rooker-Feldman doctrine, which prevents lower courts from sitting in appellate review of state court decisions, does not prevent this Court from discerning if the actions of Vicki M. Egleston, in obtaining judgments based on the Consent Order, violated the discharge injunction of § 524(a)(2). Reasons for Decision, April 12, 2002, pgs. 10-11. See also Reasons for Decision dated October 15, 2003.
Here, counsel to Vicki Egleston notes that this Court has heretofore indicated that 11 U.S.C. § 523(a)(15) is inapplicable to these proceedings. Nothing in counsel's memorandum has dissuaded this Court of that conclusion.
Counsel for Vicki M. Egleston has extensively briefed this issue, citing the Fifth Circuit holding in Swate v. Hartwell, 99 F.3d 1282, 1286 (5th Cir. 1996), in support of her position. The memorandum also addresses property of the estate issues and expenses incurred in establishing and collecting support obligations, relying on the Fifth Circuit cases of Hudson v. Raggio Raggio, Inc., 107 F.3d 355, 357 (5th Cir. 1997); Joseph v. J. Huey O'Toole, P.C., 16 F. 3d 86 (5th Cir. 1994), and Dvorak v. Dvorak, 986 F. 2d 940 (5th Cir. 1993); regarding attorney fees and costs payable to third parties in connection with attempts to establish and collect support obligations. Finally, Vicki Egleston insists she is entitled to receive the proceeds from the sale of Dr. Egleston's medical practice in Pennsylvania, when they are paid. Here, however, counsel concedes that Dr. Egleston may have been relieved from any in personam obligation when his first bankruptcy case was closed and that the closing of the original bankruptcy case constituted an abandonment of any interest in that property.
In a prime example of reductio ad absurdum, Vicki Egleston's opposition to the Motion for Summary Judgment attaches as Exhibit B, a letter, not an affidavit, from one Lee J. Harmatz, MD, who stated he took over Dr. Egleston's medical practice, as of August 1, 1993. The letter, which reflects his office hours, welcomes new patients, but does not describe any financial arrangements regarding the takeover.
Dr. Egleston rallied with yet another recalculation of the amounts he maintains are due, reducing in this volley the amount to a net of $36,405.15, relying on the November 3, 2000, opinion by the Pennsylvania Court. Ultimately, the last Declaration was filed by Sharon L. Michaels Egleston, attesting to the now quite obvious: a long and bitter relationship between debtor and his former spouse.
Dr. Egleston's computations:
"In accordance with the instructions of the court, I supplement the evidence in support of my motion for summary judgment with the following information. Attached to this declaration for convenient reference are pages 9 and 10 of the opinion and order of Judge Anthony G. Marsili, Court of Common Pleas of Westmoreland County, Pennsylvania, Civil Division. As Judge Marsili wrote on page 9, an opinion of the court dated November 3, 2000, calculated an alimony balance of $219,300. Continued on page 10, Judge Marsili listed the payments made at the end of the year 2000 and through the date of the ruling, September 17, 2003. These amounts are as follows:
Year Payments Received Remaining Alimony Balance 2000 6,500 $212,800 2001 75,500 137,300 2002 28,000 109,300 2003 (to 9/17/03) 36,000 73,300
Judge Marsili also correctly applied the sum of $12,894.85 to the alimony obligation, leaving a balance of $60,405.15, to which he added $20,000 in accordance with the ruling of the District Court of Appeals, in a case arising out of my earlier bankruptcy proceeding.
Judge Marsili added an additional $16,000 that was imposed by Judge Marker on September 30, 1994. See footnote 2. The records of the United States Bankruptcy Court will reflect that my case was pending at the time this additional assessment was made. The $16,000 figure was not part of the nondischarged obligation that was recognized by the Bankruptcy Court and the Fifth Circuit.
As will appear from the exhibits attached to this declaration, I have made payments totaling $44,000 since September 17, 2003 ($24,000 + $12,000 + $4,000 + $4,000)." (Doc. no. 65)
This document, docket no. 67, avers that Vicki Egleston has impersonated Sharon to obtain information about Dr. Egleston's income, and has filed contempt proceedings resulting in his incarceration, and purportedly encouraging the Internal Revenue Service to attach a bank account of Dr. Egleston and Sharon Egleston.
Analysis
Based on the foregoing, this Court now concludes that all of Vicki M. Egleston's present claims (except for the unpaid alimony) are barred by res judicata. The case law cited by her in opposition to the motion for summary judgment does not change this result. Joseph (involving obligations to pay attorney fees incurred by former spouse) , Dvorak (attorney fees incurred by guardian ad litem and by attorney for child's father in custody battle) and Hudson (fees awarded to law firm), cited by Vicki M. Egleston, all recognize the bankruptcy court's powers to examine the "labels" put upon various obligations by the state courts under 523(a)(5). Only Swate, at first glance, would appear to offer Vicki M. Egleston a glimmer of hope, but a close reading shows that her reliance on that case is misplaced.
In Swate, debtor and his former spouse, Hartwell, were divorced in 1981. Prior to the divorce, the parties entered into an agreement which was later recognized by the state court. That agreement required Swate to pay Hartwell $1000.00 a month, terminable on her death, with cost of living adjustments. Swate filed bankruptcy in 1987. Hartwell timely objected to the dischargeability of various obligations arising under the agreement. The bankruptcy court found that portions of the agreement, including the alimony provisions, attorney fees for prosecuting her claim, and those relating to prosecution and collection, " including past, present, and future `alimony' obligations and attorney fees relating thereto" were excepted from discharge. Swate, 99 F.3d 1282, at 1285. Also, the bankruptcy court granted Hartwell relief from the stay to allow her to enforce the alimony provisions in the state court, where Hartwell sought filed state court proceedings to recover alimony and support arrearage.
Swate's first bankruptcy case was closed in 1991. In 1992, Hartwell then amended her state court petition to seek damages for anticipatory breach of the alimony provisions in the agreement. The state court then entered a post-divorce verdict fixing damages for past due-child support, pastdue alimony, anticipatory breach of the agreement, and attorney fees, all of which totaled in excess of $570,000.00. Swate again sought bankruptcy relief in 1993. Hartwell filed an adversary proceeding in which the bankruptcy court granted her motion for summary judgment on res judicata grounds, holding that Swate was barred from relitigating the issue under § 523(a)(5). The district court affirmed, holding that the principles of res judicata and collateral estoppel barred relief, inasmuch as the Post-Divorce Final Judgment changing the continuing monthly duty to a lump-sum liability had not altered the substance of the obligation in both bankruptcy proceedings. In the first bankruptcy, Swate's "past, present and future" obligations to pay had been found non-dischargeable. Merely changing the character of those obligations to a lump-sum payment, once the obligations had matured and Swate defaulted, did not change the character of the obligation.
On appeal, the Fifth Circuit concurred, after observing that property settlements were (at the time) nondischargeable in bankruptcy, citing In re Brody, 3 F3d 35 (2d Cir. 1993). Swate's effort to raise differing policy concerns in the second bankruptcy, as opposed to those at play in the first bankruptcy case, militated in his favor on collateral estoppel grounds, was unsuccessful. In sum, the second bankruptcy afforded the debtor no additional relief; but, at the same time, did not permit his former spouse to gain any advantage beyond the prior, final judgment.
Comparing the judgment between the Egleston's and Swate and his former spouse, it appears that the Egleston's September 14, 1993, "Marital Settlement Agreement" (Exhibit A) did the following:
(1) It expressly addressed the transfer of the marital real estate, in that it directed the Plaintiff/Husband to transfer the same to the defendant/wife, "subject to the indebtedness to PNC Corporation; provided however the defendant/wife has not agreed to pay nor does she indemnify the plaintiff/husband on account of said liability. It is understood that all the personal property contained within the premises shall be the sole property of the defendant/wife." ¶ 7.
(2) It recognized an agreement had been negotiated as to the sale of the plaintiff/husband's medical practice for the sum of $77,900.00, although it had not been consummated. Of that sum, the plaintiff wife was to receive one half or $37,500.00 at the time the sale was closed, as an "equitable distribution," with the remaining balance of cash proceeds ($30,000.00) payable in six consecutive monthly installments beginning January 1, 1994. In the event of a default by the plaintiff/husband or buyer(s), the plaintiff/husband was to pay $5000.00 a month. ¶¶ 8, 10.
(3) It established that alimony payments of $4000.00 per month were to begin October 1, 1993, to cease temporarily December 31, 1993, when the payments under the sale of the medical practice would begin, and, then, beginning May 1, 1994, the alimony payments would resume, for a total of 128 months, terminating on the death of the defendant/wife, but not on her remarriage. As to attorney fees, there are two provisions. The first, ¶ 13, contemplates that a non-defaulting party may seek specific performance, in which event the other may be responsible for the attorney fees and other expenses of collection. However, ¶ 15 contemplates that "[e]ach party shall be responsible for the payment of his or her own counsel fees and costs."
This judgment was, of course, the subject of the rulings in Dr. Egleston's first bankruptcy, where, after an appeal to the Fifth Circuit, discussed at length, supra, 136 payments were nondischargeable. This finite conclusion contrasts with the results in Swate in two significant ways. First, the decree in Swate referred to "past, present, and future `alimony' obligations." Secondly, and most importantly, it recognized the non-dischargeability of any obligations for the prosecution or collection of the sums due under the original decree, correctly anticipating that Swate was likely to default in the payments. The judgment between the Eglestons, however, is conspicuously silent as to the likelihood of such an event. Thus, the Pennsylvania Court's award of $42,750.00 for attorney fees (and the additional fees sought by Vicki in these proceedings) for post-discharge collection and enforcement are clearly not within the scope of the final determinations between the Eglestons and are conclusively barred under the Howe tests. Even if this Court could accept Vicki Egleston's argument as to the attorney fees and costs of collection, the remaining requests are ridiculous in light of the case law. Under the Howe test, it strains credulity to suggest that the Pennsylvania court's awards to Vicki Egleston of $6000.00 for her travel expenses to Louisiana, loss of equity in the Pennsylvania real estate, $10,000.00 in lost personal possessions, and $20,000.00 for loss in equity of an automobile are nothing but mere changes in substance of the original determination by the the Louisiana federal court. The result in Swate is also illustrative of the fact that property settlements were at all pertinent times non-dischargeable between not only Swate and Hartwell but also between the Eglestons.
Matter of Howe, 913 F. 2d 1138 (5th Cir. 1990).
11 U.S.C. § 523(a)(15) is a new remedy, not retroactively applicable and not available to either of the Eglestons, nor any similarly situated debtor. This section was added to the Code by the Bankruptcy Reform Act of 1994, by Public Law No. 103-394, § 221, and was effective on the date of its enactment (October 22, 1994), but not as to pending cases. The enactment of this addition to the litany of discharge exceptions reflected a recognition by Congress that the traditional labels of alimony and support did not always recognize the effect intended by the state courts in distinguishing between property settlements and support payments as a component of the postdivorce economic security of dependant family members. There is no suggestion that Congress intended this provision to apply retroactively. Indeed, it expressly disallowed its application to pending cases. Thus, as to the Eglestons, and similarly situated parties, the failure to comply with a property settlement type obligation in a divorce, prior to the effective date of the application of § 523(a)(15), does not give rise to this cause of action.
Collier on Bankruptcy, ¶ 523.21, note 1.
Id.
Nor is there any indication that by virtue of the filing of a second petition, after the complete litigation of all issues under the law applicable prior to the enactment of Public Law No. 103-394, § 221, was intended to give the litigants ex post facto relief. To hold otherwise would require the bankruptcy courts to revisit every final judgment under § 523(a)(5) rendered prior to October 22, 1994. Thus, neither Dr. Egleston's (by virtue of his latest filing in 2002, after the effective date of § 523(a)(15)) nor Vicki M. Egleston (by filing another adversary proceeding) get another bite at the apple.
Dr. Egelston's first bankruptcy petition was filed March 14, 1994. Thus, § 523(a)(15) did not apply to the discharge determinations in the related complaint. The bankruptcy petitions in Swate were filed in 19827 and 1993, also prior to the effective date of § 523(a)(15).
At this juncture, it is beyond peradventure that the Pennsylvania Court, in its several awards to Vicki Egleston as enumerated herein, has gone far afield. It is true that the Opinion and Order of Court dated September 17, 2003, by Judge Marcelli, has done a great deal to clear away the detritus created by his predecessor Judge Marker. Indeed, that Court has belatedly recognized this Court's exclusive subject matter jurisdiction.
Id., pg 11.
Conclusion
That said, we arrive at a determination of the balance owing on unpaid alimony. Nothing in the various oppositions filed by Vicki Egleston has caused this Court to question Dr. Egleston's calculations vel non, as set forth in his latest filing. Therein, he notes that the computations by Judge Marcel in an opinion dated November 3, 2000, calculated an unpaid alimony balance of $219,300.00. Judge Marsili then listed the payments made through the end of year 2000 through the date of the ruling of September 17, 2003, plus an additional credit of $12,894.85, for a net of $60,405.15, to which Judge Marsili added $20,000.00, resulting from the earlier rulings in this bankruptcy court and the appeals, for a total due of $80,405.15. Dr. Egleston claims additional credits for payments since September 17, 2003, totaling $44,000.00, which payments are documented. Vicki M. Egleston's declaration, however, acknowledges payments of only $20,000.00. This Court adopts Dr. Egleston's figures. Accordingly, after crediting the payments totaling $44,000.00 against $80,405.15, results in a balance due of $36,405.15, which amount is non-dischargeable.
Judge Marsili added an additional $16,000.00, which this Court does not consider valid. Dr. Egleston's affidavit states the $16,000.00 sum was imposed by Judge Marker on September 30, 1994, and was not a part of the judgment addressed on appeal. Dr. Egleston's Excerpt from the record of the Pennsylvania Court, at footnote 2, references Judge Marsili's "attempted" reconciliation of Judge Marker's calculations of arrearage. The complete reference is contained in the copy of the Pennsylvania Court record attached to Vicki M. Egleston's opposition. It reads: "This Court originally attempted to reconcile Judge Marker's calculation of arrearage upon the alimony due and owing through September 30, 1994' in its Order dated November 3, 2000, which appears to have resulted in an additional $16,000.00 being awarded to the Defendant. This Court is in no position to reconstruct this case 10 years later. The additional $16,000.00 is the law of the case, and has never been appealed or questioned by the Plaintiff. It will be added to this balance." Opinion and Order of Court, September 17, 2003, pages 9-10, fn. 2. This additional charge is not the law of this case.
Before turning to address contentions that appear to have been abandoned, counsel for Vicki Egleston argues at length that her rights to claim reimbursement for the sale of the medical practice is estate property under 11 U.S.C. § 541. Under this argument, once the first bankruptcy case filed by Dr. Egleston was closed, without any administration of that asset, the property vested under 11 U.S.C. § 554(c). However, counsel also concedes that Dr. Egleston's personal obligation to pay that claim was discharged. That concession was and is fatal to further efforts against Dr. Egleston.
Supplemental Memorandum, docket no. 62, page 31. Only assets that have been scheduled are abandoned under § 554(c). This Court does not have benefit of the schedules in the original bankruptcy case, nor has Counsel to Vicki M. Egleston produced them. Since, however, the original September 14, 1993, Marital Separation Agreement was extensively litigated in the 1994 bankruptcy proceedings, and that agreement contemplated a sale that had not yet been consummated, this Court must assume that the Chapter 7 Trustee in that case, who would have standing to raise any rights to the sale proceeds until such time as the case was closed, was aware of the sale.
Turning now to other claims in these respective adversary proceedings that appear to have been abandoned, it is significant that all the parties have couched the pending motion and responses as either requests for or oppositions to summary judgment, not just for partial relief. While L. Alan Egleston is the movant on the motion for summary judgment, he has offered no statements or affidavits in support of his claims for damages for violation of the discharge injunction or the various claims for damages set forth in his complaints. Although his current spouse, and co-claimant on the damage claim, has filed a Declaration attesting to the arrest of Dr. Egleston and difficulties allegedly encountered through the efforts of Vicki M. Egleston, these filings are insufficient to support a summary judgment, in the absence of a statement of material facts relating to same under F.R.B.P. 56 and Local District Court Rule 56.
Sharon Egleston's claim that the efforts of Vicki M.Egleston caused a levy to be filed on their bank account by the Internal Revenue Service is specious. The obligation to pay taxes supercedes any third-party interference claim, even if we are to assume that Vicki M.Egleston acted as alleged. This Court has no patience with those who evade the obligation to file their tax returns and pay their taxes.
On the other hand, Vicki Egleston, it should be recalled, sought the denial of the discharge of both L. Alan Egleston and Sharon L. Michael Egleston, in the most recent complaint, Adversary No. 02-1040. Therein, she made various allegations at ¶ 20 that essentially track 11 U.S.C.727(a)(2) and (3), stating that the debtors failed to file accurate schedules and statements of affairs. She has not filed a cross-motion for summary judgment, and her declaration (docket no. 61), makes no mention of those allegations. This Court is not unmindful that the burden of proof in objections to the discharge is preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654 (1991). It is also true that findings of a state court may be entitled to collateral estoppel effect. We note that Judge Marker of the Pennsylvania Court made various Findings of Fact in a hearing on July 9, 2001, relating to the conduct of Dr. Egleston following his release from incarceration in September of 1999. Some of the allegations relate to income for that year and a corporation styled HBZ Medical Corporation. This Court is not unmindful of its own ruling on the Motion to Compel Discovery, which is incorporated herein by reference, which largely narrowed the focus of an attempt to discover virtually every aspect of Dr. Egleston's life since 1993. Since the allegations in the complaint are not now accompanied by the appropriate cross-motion and supporting statements of facts, to say nothing of the absence of a statement in the Pennsylvania Court's opinion as to the burden of proof it was applying, we assume that she has abandoned her challenge to the discharge.
Accordingly, in addition to fixing the amount of the non-nondischargeable amount due by Dr. Egleston, this Court is compelled to dismiss with prejudice any and all additional claims asserted by any party herein, other than the request by L. Alan Egleston and Sharon Michael Egleston for injunctive relief against Vicki M. Egleston. Whatever this Court or the Pennsylvania Court may think of these parties, it is time for this epic to end. Dr. Egleston and Sharon Egleston are entitled to a fresh start under the bankruptcy code. This Court has acknowledged this truth twice, as to Dr. Egleston, despite Vicki Egleston's strident opposition, subject only to the payment of the amounts herein determined to be non-dischargeable. This second fresh start took almost ten years from the time this issue was first finalized in the Louisiana Courts. The original Marital Settlement Agreement Order dated September 14, 1993, cautioned L. Alan Egleston and Vicki M.M. Egleston as follows:
The parties shall not molest or interfere with each other; nor shall either of them malign or slander the other in any way, or in any way injure his or her reputation."
Order of Court, ¶ 2. It is a tragedy that this admonition was not followed.
Further, while this Court appreciates the efforts of Judge Marsili, as previously noted, this Court is not unmindful that other efforts at forum shopping by one or more of these parties may again bring matters to the attention of the Pennsylvania or other courts that seek to revisit and reimpose the harm that has already been done in revisiting the final orders of the Louisiana federal courts. Accordingly, any and all orders of the Court of Common Pleas of Westmoreland County, Pennsylvania, that are contrary to these Reasons for Decision, including but not limited to the Orders dated January 16, 1998, June 18, 1998, November 3, 2000, and September 17, 2003, are hereby ANNULLED and Vicki M. Egleston, L. Alan Egleston and Sharon Michaels Egleston are all permanently prohibited and enjoined to take any action contrary to these reasons and the accompanying orders of this Court.
A separate and conforming Order requiring Dr. Egleston to pay Vicki M. Egleston the nondischargeable amount due, $36,405.15, and reiterating the foregoing prohibition will enter this date.