IN RE BROOKS (Bankr.S.D.Ohio 2002)

Case No. 97-16744, Adversary Case No. 01-1389United States Bankruptcy Court, S.D. Ohio, Western Division.
January 3, 2003

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
JEFFERY HOPKINS, Bankruptcy Judge.

The Debtor’s former husband (“Plaintiff”) commenced this adversary proceeding, seeking a determination that a debt arising from a dissolution decree and separation agreement is nondischargeable pursuant to 11 U.S.C. § 523(a)(2), (6) and/or (15). Presently before the Court is a motion for summary judgment (“Motion”) (Doc. 13) filed by the Debtor (“Defendant”). Because the Plaintiff failed to produce any evidence of a claim under § 523(a)(2) and (6), the Motion will be granted in part. Because the record reflects that the Defendant bears the burden of proof under § 523(a)(15), the Motion will be denied in part.

FACTS
The marriage between the Plaintiff and the Defendant was terminated pursuant to a Decree of Dissolution of Marriage (“Decree”) entered by the Court of Common Pleas, Division of Domestic Relations, Hamilton County, Ohio, on or about June 2, 1997. Attached to and incorporated into the Decree is a Separation Agreement between the parties. The Separation Agreement directed the Defendant to pay the parties’ joint debt on a Discover Card. The Plaintiff seeks a determination that the foregoing obligation is nondischargeable.

LAW
Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). When the nonmovant bears the burden of proof at trial, the movant need only direct the court’s attention to an absence of evidence supporting the nonmovant’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-325 (1986).

§ 523(A)(2) (6)
Counts one and two of the complaint allege that the debt is nondischargeable pursuant to § 523(a)(2) and (6). The Defendant argues that there is no factual basis for these counts. (Motion at 7.) By his response (Doc. 15) to the Motion, the Plaintiff failed to produce any evidence of an action under § 523(a)(2) and (6). Accordingly, under the Celotex standard, summary judgment in favor of the Defendant is appropriate as to counts one and two.

§ 523(A)(15)
Count three of the complaint alleges that the debt is nondischargeable pursuant to § 523(a)(15).[1] The Defendant’s Motion fails as to count three for the simple reason that she bears the burden of proof on this issue, not the Plaintiff. The Sixth Circuit Bankruptcy Appellate Panel has identified the burden of proof under § 523(a)(15) as follows:

The objecting creditor bears the burden of proof to establish that the debt is of a type excepted from discharge under § 523(a)(15). Once the creditor has met this burden, the burden shifts to the debtor to prove either of the exceptions to nondischargeability contained in subsections (A) or (B).

Hart v. Molino (In re Molino), 225 B.R. 904, 907 (B.A.P. 6th Cir. 1998). The complaint and answer unequivocally establish: (1) the debt arises out of the parties’ dissolution decree; and (2) all rights to spousal support were waived by the parties. Therefore, nondischargeability of the debt is governed by § 523(a)(15) as opposed to § 523(a)(5) and the Defendant — not the Plaintiff — now bears the burden of proving the applicability of one of the exceptions to nondischargeability set forth in subsections (A) and (B). Accordingly, summary judgment against the Plaintiff is inappropriate as to count three.

CONCLUSION
For the foregoing reasons, the Defendant’s Motion For Summary Judgment (Doc. 13) filed on May 31, 2002, will be GRANTED as to counts one and two of the complaint and DENIED as to count three of the complaint. An order to this effect will be entered.