IN RE BAILEY

BOSWELL, United States Bankruptcy Judge

On May 8, 2000, this Court issued a Memorandum Opinion and Order granting the plaintiff's Complaint Objecting to Discharge. Pursuant to this memorandum, the Court awarded Kimberly Bailey a non-dischargeable judgment against the defendant Bryant Bailey in the amount of $20,000.00. Bryant Bailey appealed this judgment to the Bankruptcy Appellate Panel for the Sixth Circuit (BAP). On November 27, 2000, the BAP affirmed this Court's finding that the obligations owing to Kimberly Bailey were non-dischargeable; however, the BAP vacated the $20,000 award, finding that "the record is insufficient to establish the basis on which the Bankruptcy Court determined . . . the amount of the non-dischargeable debt" and remanded the case for additional facts and findings.

This Court conducted a hearing on the BAP's remand of this matter on March 23, 2001. FED. R. BANKR. P. 7001. Pursuant to 28 U.S.C. § 157(b)(2), this is a core proceeding. After reviewing the testimony from the trial and the record as a whole, the Court makes the following additional findings of facts. FED. R. BANKR. P. 7052.

ADDITIONAL FINDINGS OF FACT

In the original trial in this matter, the Court found that the following awards made by the Chancery Court to Kimberly Bailey were non-dischargeable pursuant to § 523(a)(5) of the Bankruptcy Code:

1. The 1989 Bayliner boat, all the boat accessories, two huffy bicycles, guns, a rowing machine, a weight bench and tools;

2. The assumption of all delinquent debts by the Defendants; and

3. The Plaintiff's expenses and attorney's fees.

On appeal, the Bankruptcy Appellate Panel for the Sixth Circuit affirmed this conclusion: "Accordingly, the bankruptcy court correctly found that the awards in favor of Kimberly Bailey in the divorce proceedings are in the nature of support and thus nondischargeable pursuant to 11 U.S.C. § 523(a)(5)." Bailey v. Bailey (In re Bailey), 254 B.R. 901, 906 (B.A.P. 6th Cir. 2000).

Upon reexamination of the record and the exhibits, the Court finds that the amount of the non-dischargeable judgment should be amended to $29,294.66. The Court will address the value of each of the items Bryant Bailey was to turn over to Kimberly Bailey to sell individually.

The 1989 Bayliner Boat

According to the proposed findings of facts submitted by both parties to this action, the value of the boat is $4,000.00. Because no separate proof was submitted regarding the value of the accessories, the Court finds that the $4,000.00 value includes the accessories.

Two Huffy Bicycles

Kimberly Bailey testified at the original trial in this matter and at the hearing on the BAP's remand that the value of the brand new bicycles was $100.00 each. Bryant Bailey introduced proof at the remand hearing that he sold the bicycles to Wayne Isbell on September 29, 2001, at a yard sale for $25.00 each. Despite this sales price, the Court finds that the bicycles were worth $100.00 each. At the time of selling the bicycles, Bryant Bailey was under numerous court orders to turn the bikes over to Kimberly Bailey so that they may be sold. He did not have authority to sell them himself. Additionally, his decision to sell the bicycles for $25.00 apiece does not establish what the bikes were worth, rather it establishes what he sold them for. Bryant Bailey did not submit any proof of the bikes' value.

Guns

The only proof submitted to the Court regarding guns was a pawn shop estimate for a model 950 Beretta of $75.00. No other proof was submitted regarding the existence or value of any other guns. As a result, the Court finds that the value of the guns Bryant Bailey was ordered to turn over to Kimberly Bailey by the Chancery Court was $75.00.

Rowing Machine

No proof was presented at either the original trial in this matter or at the remand hearing that the parties ever owned a rowing machine. Consequently, the value of this award is $0.00

Weight Bench

Bryant Bailey testified that he was in possession of the weight bench, but that Kimberly Bailey had the weights. His estimation of the value of the weight bench without the weights was $50.00. No proof was submitted by Kimberly Bailey to refute this valuation.

Tools

In all the relevant Chancery Court orders, the value of the tools Bryant Bailey was to turn over to Kimberly Bailey was $5,000.00. Both Kimberly Bailey and Bryant Bailey stated in their proposed findings of fact that they agreed with this value. The Court therefore finds that the value of this award is $5,000.00.

Delinquent Debts

Bryant Bailey was not divested of title to the parties' marital residence until September 20, 1999. On December 15, 1999, the Chancery Court reiterated this divestiture and ordered Kimberly Bailey to assume the indebtedness as of the date of entry of that order, which was December 15, 1999. In this same order, the Chancery Court ruled as follows:

For repetition, the Defendant is, by specific orders of the court, to bring current all delinquent indebtedness, including house notes and credit cards,. . . .

As a result, the debtor was required to pay all delinquencies as of December 15, 1999. As of December 15, 1999, the first mortgage on the parties' marital residence was delinquent for the months of February 1999 through December 1999. At the time of this delinquency, the monthly payment on the first mortgage was $846.70. The Court finds the value of the eleven month default on the first mortgage to be $9,313.37.

As of December 15, 1999, the second mortgage on the parties' marital residence was delinquent for the months of February 1999 through December 1999. At the time of this delinquency, the monthly payment on the second mortgage was $648.00. The Court finds the value of the eleven month default on the second mortgage to be $7,128.00.

The utility bill for the parties' marital residence was delinquent in the amount of $1,528.29 as of December 15, 1999. Pursuant to the Chancery Court order, Bryant Bailey was obligated to pay this default.

Attorney's Fees

The plaintiff has incurred attorneys fees in trying to enforce the chancery court orders and in bringing this action. The Court finds that the plaintiff is entitled to an award of $2,000.00 for attorney's fees.