The opinion of the court was delivered by: Leon Jordan United States District Judge
Christopher George Jensen ("Debtor") appeals the bankruptcy court's ruling that a $45,000.00 credit card obligation arising from his divorce is in the nature of support, and thus non-dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(5). For the reasons that follow, the judgment of the bankruptcy court will be reversed.
The Debtor filed a voluntary petition under Chapter 13 of the Bankruptcy Code on February 23, 2005. The case was later converted to a Chapter 7 bankruptcy.
On March 24, 2005, the Debtor initiated an adversary proceeding in the bankruptcy court against his former wife, defendant/appellee Rosanne D. Jensen ("Appellee"). The Debtor, inter alia, sought to have the above-referenced $45,000.00 credit card obligation discharged under § 523(a)(5).*fn1 The version of §523(a)(5) in effect on the date of the Debtor's bankruptcy filing made non-dischargeable, in sum, debts that were "actually in the nature of alimony, maintenance, or support" to a spouse, child, or former spouse.*fn2
The Debtor and Appellee were married for approximately twenty years. At the time of their divorce, the Debtor (who has an associate's degree in civil engineering) earned approximately $80,000.00 per year. Appellee (who has a high school diploma along with licenses in cosmetology and massage) was essentially unemployed. She was working as of the date of the bankruptcy court trial, earning $10.00 per hour. Her earning capacity has been, and continues to be, limited by purported diagnoses of fibromyalgia, chronic fatigue syndrome, and chronic vertigo.
In the divorce, Appellee was awarded primary custody of the parties' two minor children. She was also awarded approximately $1,384.00 in monthly child support payments. She was further awarded the parties' house, in which according to her testimony there was at least $60,000.00 of equity.
The Final Judgment of Divorce, entered July 6, 2004, provides in material part:
The Defendant [Mr. Jensen] shall pay to the Plaintiff [Mrs. Jensen] the sum of Fourteen Hundred Dollars ($1,400.00) per month as alimony in solido for three (3) years from the date of entry of this Final Judgment of Divorce. 4. Division of Assets
The marital residence . . . shall be awarded to the Plaintiff as her sole and exclusive property . . . . The Plaintiff shall be solely responsible for any outstanding mortgages on said property and she shall hold the Defendant harmless therefrom. The Plaintiff shall hold the Defendant harmless from all proceedings and any judgment in the case of [Dubecky v. Jensen] currently pending in the Chancery Court . . . .
The Defendant shall be responsible for any and all credit card debts up to Forty-Five Thousand Dollars ($45,000.00) as per ...