GERALD D. FINES, Chief United States Bankruptcy Judge
This matter having come before the Court on an Objection to Confirmation filed by Creditor, JoAnn Schwallier, f/k/a JoAnn Townsley; the Court, having heard sworn testimony and arguments of counsel and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.
Findings of Fact
The material facts in this matter are not in dispute, and are, in pertinent part, as follows:
1. The Objector to confirmation, JoAnn Schwallier, f/k/a JoAnn Townsley, was previously married to the Debtor, Richard L. Townsley, and the parties were divorced on August 7, 1986. As a part of their divorce decree, the parties entered into a marital settlement agreement which awarded JoAnn Schwallier the sum of $400 per month to be paid from Debtor Richard L. Townsley's retirement pension from the University of Illinois.
2. Debtor, Richard L. Townsley, made regular monthly payments in the amount of $400, as indicated in the parties marital settlement agreement, until the time of filing of his Chapter 13 bankruptcy on May 6, 2002, and his Chapter 13 Plan of reorganization.
3. The Debtors' Plan Under Chapter 13 seeks to treat Creditor, JoAnn Schwallier as an unsecured creditor to be paid the sum of 25% of her claim.
4. The Objector maintains that she should continue to receive the sum of $400 per month as an equitable division of Debtor Richard L. Townsley's retirement until either party dies, in that she asserts that said debt is non-dischargeable pursuant to the provisions of
11 U.S.C. § 523(a)(5) and
1328; or, in the alternative, that the Debtors' Plan Under Chapter 13 is not filed in good faith pursuant to
11 U.S.C. § 1325(a)(3), in that the debt in question would be non-dischargeable under
11 U.S.C. § 523(a)(15) were this a case under Chapter 7 of the Bankruptcy Code.
Conclusions of Law
The Court will first address the Objector's argument that the debt in question is non-dischargeable pursuant to the provisions of 11 U.S.C. § 523(a)(5) and 1328. In this regard, the Court notes that the cases cited by the Debtors of In re Reines, 142 F.3d 970 (7th Cir. 1998), and In re Daulton, 139 B.R. 708 (Bankr.C.D.Ill. 1992), are controlling of the issues before the Court. Based upon the Seventh Circuit decision in Reines and this Court's decision in Daulton, the Court finds that the debt at issue is a property settlement matter rather than a debt in the nature of maintenance or alimony in that, at the time of the marital settlement agreement on August 7, 1986, the parties were both represented by counsel, the parties waived maintenance, and remarriage of either party did not stop the $400 per month payments as is normal in the case of maintenance. Furthermore, the $400 per month award was not treated as maintenance by either party for the purpose of income taxes. At trial, on December 19, 2002, the Objector testified that she believed that the $400 per month payment was for her interest in the pension of Debtor, Richard L. Townsley. Considering other factors enumerated in Daulton, the Court notes that the parties' health and age at the time of the marital settlement agreement are factors which do not weigh in either parties' favor, and the matter was clearly labeled as "property settlement" in the marital settlement agreement.
All in all, the Court must conclude that more factors enumerated in the Daulton decision weigh in favor of the Debtor. Thus, the Court concludes that the debt in question is a property settlement matter, rather than maintenance or alimony, and is dischargeable pursuant to the provisions of 11 U.S.C. § 523(a)(5) and 1328.
Next, the Court turns to the Objector's argument that the Debtors' Plan Under Chapter 13 is not filed in good faith, in that the debt in question would be non-dischargeable pursuant to 11 U.S.C. § 523(a)(15) if the case were filed under Chapter 7 of the Bankruptcy Code. In considering the facts as they apply under 11 U.S.C. § 523(a)(15), the Court must conclude, based upon the uncontroverted evidence that the Debtor, Richard L. Townsley, simply does not have the ability to continue making the $400 per month payments in light of his present health and financial condition. Furthermore, even if the Court were to find that the Debtor had the present ability to make the $400 per month payment, the Court finds that, under 11 U.S.C. § 523(a)(15), discharging the debt in question results in a benefit to the Debtor, Richard L. Townsley, that outweighs the detrimental consequences to the objecting former spouse. As such, the Court concludes that it must deny the Objection to Confirmation, and set the Debtors' Plan Under Chapter 13 for a final confirmation hearing, at which time the Court will consider the recommendations of the Chapter 13 Trustee and his position on confirmation.
ORDER
For the reasons set forth in an Opinion entered on the ___ day of _______________; IT IS HEREBY ORDERED that:
A. The Objection to Confirmation filed by Creditor, JoAnn Schwallier, on July 3, 2002, is DENIED; and,
B. A final hearing on confirmation of the Debtors' Plan Under Chapter 13 is scheduled for January 28, 2003, at 10:00 a.m., in Courtroom 120, Federal Building, 201 North Vermilion, Danville, Illinois, to determine the Chapter 13 Trustee's recommendations for confirmation.