DAVIS v. DAVIS

DAVIS v. DAVIS
1979 OK 40
593 P.2d 88
Case Number: 51198
Decided: 03/20/1979
Supreme Court of Oklahoma

PATRICIA A. DAVIS, APPELLEE,
v.
GARY B. DAVIS, APPELLANT.

Appeal from District Court, Cleveland County; Alma B. Wilson, Judge.

¶0 In wife's post-divorce proceeding to enforce, by contempt, husband's decree-imposed obligation to pay [to a third party] a debt jointly incurred during the marriage, husband interposed the defense of discharge in bankruptcy. Trial court found him in contempt and Court of Appeals reversed.

On certiorari to the Court of Appeals, Division 1, its opinion herein is withdrawn and trial court's order is reversed with directions to find husband not guilty of contempt.

Lucas & Cate, by C. Bruce Jones, Norman, for appellee.

Michael T. Braswell, Porter & Braswell, Angela Thomas, Intern, Oklahoma City, for appellant.

OPALA, Justice:

[593 P.2d 89]

¶1 The single issue before us is whether husband's decree-imposed obligation to pay a debt jointly incurred by the spouses during their matrimony was effectively discharged in bankruptcy or constituted nondischargeable "spousal support liability".

¶2 The obligation in question, tersely described in the divorce decree as "two notes at Security National Bank & Trust Company of Norman", is referred to in wife's application for contempt citation as jointly incurred indebtedness of $2,500.00.

¶3 The terms of 11 U.S.C. § 35(a)7 (1970) [in effect at the time of husband's bankruptcy proceeding] declare nondischargeable any liability ". . . for alimony due or to become due, or for maintenance or support of wife or child . . .". Since the factum of husband's general discharge was not in dispute, the wife had the burden of showing that the obligation sought to be enforced by her was nondischargeable in law and hence remained unreleased.

¶4 The issue of whether the obligation in question is in the nature of spousal support liability, as opposed to a property rights adjustment, is governed by our state law.

¶5 The testimonial evidence admitted identifies the obligation in suit as a "commercial note", jointly signed by the parties, "to go into business" described as one dealing in "Indian jewelry". The business, which was apparently jointly operated, came to be "terminated" in 1976, before the parties were divorced. At the time of the decree the wife was earning $1,000.00 per year more than the husband.

¶6 The record is utterly devoid of any nexus between "spousal support liability" and the obligation sought to be enforced. We are constrained to hold the debt in question has no relation to wife's "alimony, support or maintenance". It was hence dischargeable in bankruptcy.

¶7 Order holding husband-obligor in contempt is reversed with directions to find him not guilty as a matter of law.

¶8 All Justices concur.

Footnotes:

1 Hill v. Smith, 260 U.S. 592, 43 S. Ct. 219, 67 L. Ed. 419 (1923); Peerson v. Mitchell, 205 Okl. 530, 239 P.2d 1028, 1030, 26 A.L.R.2d 362 (1950), cert. denied 342 U.S. 866, 72 S. Ct. 106, 96 L. Ed. 652.

2 Treece v. Treece, Okl., 458 P.2d 633, 636 (1969); Erickson v. Beardall, 20 Utah 2d 287, 437 P.2d 210, 212 (1968); Lyon v. Lyon, 115 Utah 466, 206 P.2d 148, 151 (1949). Federal law derivation of this rule is no doubt traceable to Pepper v. Litton, 308 U.S. 295, 305, 60 S. Ct. 238, 245, 84 L. Ed. 281 (1939) wherein the Court stated: "As the merger of a claim into a judgment does not change its nature so far as provability is concerned, . . . so the court may look behind the judgment to determine the essential nature of the liability for purposes of proof and allowance." (emphasis added); but see Peerson v. Mitchell, supra note 1, 239 P.2d at p. 1031, where this court confined to the judgment roll an obligor who sought to show a judgment for dog bite injury was dischargeable because not within the "willful and malicious" tort exception.

3 In re Cox, 543 F.2d 1277, 1279 (10th Cir. 1976); In re Waller, 494 F.2d 447, 448 (6th Cir. 1974); Matter of Woods, 561 F.2d 27 (7th Cir. 1977); Matter of Cornish, 529 F.2d 1363 (7th Cir. 1976); In re Nunnally, 506 F.2d 1024 (5th Cir. 1975); Damon v. Damon, 283 F.2d 571 (1st Cir. 1960); Nitz v. Nitz, 568 F.2d 148, 151 (10th Cir. 1977); Deference to state law may be attributable here to the Court's expressions in DeSylva v. Ballentine, 351 U.S. 570, 580, 76 S. Ct. 974, 980, 100 L. Ed. 1415, where, in context of copyright litigation, resort was held permissible to state law for definition of "children", since familial relations are created by that law.

4 Neugebauer v. Neugebauer, Okl., 548 P.2d 1032, 1036 (1976).