Tobkin v. State of Florida, Dept of Revenue
Filing
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ORDER AFFIRMING DECISION OF BANKRUPTCY COURT, closing case. All pending motions are denied as moot. Signed by Judge Marcia G. Cooke on 3/20/2015. (tm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 14-cv-22173-MGC
In re:
DONALD ALAN TOBKIN,
Debtor.
______________________________/
DONALD ALAN TOBKIN,
Appellant,
v.
STATE OF FLORIDA
DEPARTMENT OF REVENUE,
Appellee.
_______________________________/
ORDER AFFIRMING DECISION OF BANKRUPTCY COURT
THIS MATTER is before me on appeal from the United States Bankruptcy Court for
the Southern District of Florida. Appellant Donald Alan Tobkin appeals the Bankruptcy
Court’s Order Allowing Claims. I have reviewed Appellant’s Initial Brief (ECF No. 8) and
Reply Brief (ECF No. 16), Appellee’s Answer Brief (ECF No. 11), and the relevant legal
authorities. For the reasons provided herein, the Bankruptcy Court’s Order is affirmed.
I. INTRODUCTION
When spouses separate, they often incur continuing financial obligations to one
another arising from alimony, maintenance, child support, property settlements, assumption
of marital debts, and the like. It has long been the policy of the Bankruptcy Code to protect
dependent spouses and children from spouses who attempt to have such support obligations
discharged through bankruptcy. Wetmore v. Markoe, 196 U.S. 68 (1904). This policy was
reaffirmed in the 1978 Bankruptcy Code. The Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 (“BAPCPA”) expanded and extended this protection to inter-spousal
obligations.
In the case at hand, Appellant appeals the Bankruptcy Court’s decision to allow the
Florida Department of Revenue (“DOR”) to file, as Domestic Support Obligations
(“DSO”), claims on pre-petition debts of child support and alimony owed by Appellant in
amounts set forth by separate state court orders. (ECF No. 2-2 at 87). Appellant asserts that
the Bankruptcy Court erred in allowing the DOR to bring these alimony and child support
claims as priority, nondischargeable DSO claims. (ECF No. 8 at 2). However, the orders
from which Appellant appeals only address whether the claims are allowable claims, not
whether the claims are dischargeable. (ECF No. 1 at 2-3). Consequently, I will not address
any issues relating to the priority or dischargeability of the DSO claims, as those issues are
not properly before me.
II. STATEMENT OF FACTS
Appellant Donald Alan Tobkin, M.D., J.D., filed for bankruptcy, pro se, under
Chapter 13 of the Bankruptcy Code (“Code”). (ECF No. 2-1 at 2). Proofs of claim were
subsequently
filed in Appellant’s bankruptcy proceedings by Marilyn Byrd
(Appellant’s former wife) and the DOR (ECF No. 11 at 1), for DSOs owed by Appellant
related to past due child support and alimony. (ECF No. 2-2 at 87). Consequently,
Appellant filed numerous adversary proceedings and objections to the DSO claims,
generally arguing that he was not responsible for any outstanding DSOs. (ECF No. 2-1).
During the course of the Chapter 13 proceedings, Appellant was unable to present
the Bankruptcy Court with a confirmable Chapter 13 plan. (ECF No. 11 at 1). Therefore,
the DOR, “with the support of other creditors,” requested that the Bankruptcy Court
convert Appellant’s Chapter 13 case into a Chapter 7 case, as that would be “in the best
interest of creditors.” (Id.). Appellant argued that the DOR did not have standing to bring
such a motion. (Id.) However, on February 23, 2012, the Bankruptcy Court ruled that the
DOR did indeed have standing to make such a motion, and it entered an order converting
Appellant’s Chapter 13 case into a Chapter 7 case. (ECF No. 2-1 at 27).
The Bankruptcy Court also heard Appellant’s objections to claims and held
adversary proceedings on the DSO claims. (Id. at 22). Thereafter, the Bankruptcy Court
entered an order referring the dispute concerning the value of the outstanding DSO claims
to the Circuit Court of the Ninth Judicial Circuit, for Orange County, Florida for a
valuation. (Id. at 28). Additionally, the Bankruptcy Court found that the claims of Marilyn
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Byrd and the DOR represented the same obligations; therefore, the court only entered one
order, under which the DOR took on the responsibility of defending all outstanding DSO
claims. (ECF No. 11 at 2).
Once the state trial court determined the value of Appellant’s DSO, the DOR filed a
Renewed Motion to Allow Claims in Accordance With State Court Order Establishing
Domestic Support Obligations. (ECF No. 2-1 at 87). The DOR’s motion requested that the
DSO claims be allowed into the bankruptcy proceedings in the amounts calculated by the
state court in prior proceedings. (ECF No. 11 at 2). The DOR only filed its motion to allow
the DSO claims in the bankruptcy proceedings after both the Circuit Court of the Ninth
Judicial Circuit, for Orange County, Florida and Florida’s Fifth District Court of Appeals
entered final orders on the DSO issue, and the time to appeal further had run out.
(Id.). Nevertheless, Appellant filed amended objections to the value determinations of the
state court with the Bankruptcy Court. (ECF No. 2-1 at 97).
On January 7, 2014, the Bankruptcy Court entered protective orders in light of the
DOR’s motions seeking protection from Appellant’s discovery requests on issues t h a t
t h e S t a t e C o u r t ’ s o r d e r s h a d already resolved. (Id. at 103). Ultimately, the
Bankruptcy Court determined that Appellant’s “ failure to timely appeal the State Court
orders made those rulings final orders subject to collateral estoppel and/or res judicata”
(ECF No. 11 at 2-3). The Bankruptcy Court then granted the DOR’s motion to allow its
DSO claims. (ECF No. 2-1 at 103).
Appellant filed a motion to alter, amend, and or vacate the order allowing the
DSO claims with the Bankruptcy Court. (ECF No. 1 at 2). The Bankruptcy Court granted
Appellant’s motion in part, but allowed the DOR to pursue its DSO claims. Appellant now
appeals from the orders of the Bankruptcy Court allowing the DOR to pursue its DSO
claims in Appellant’s bankruptcy proceedings. (Id.).
III. ISSUES
Appellant argues that the DSO claims are fraudulent and should be disallowed for
two reasons. First, Appellant argues that he does not owe any alimony because his former
wife is “a healthy 40 year old licensed registered nurse and attorney” who remarried
“immediately after the Tobkin divorce.” (ECF No. 8 at 6). Hence, he argues that the
underlying alimony claim is fraudulent and the DOR lacks standing to bring such a claim.
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Second, Appellant argues that he has “no legal duty to support an adult child.” (Id. at 8)
(emphasis added). Therefore, he argues that the DOR lacks standing to pursue past-due
child support claims because his children are no longer minors. He also argues, in the
alternative, that only his children have the right to pursue child support claims, and since his
children have not authorized the DOR to file such claims on their behalf, the DOR lacks
standing to do so. (Id. at 8).
IV. STANDARD OF REVIEW
This Court, sitting as an appellate court, reviews a Bankruptcy Court’s conclusions of
law de novo. See In re Chase & Sandborn Corp., 904 F.2d 588, 593 (11th Cir. 1990); In re
Simmons, 200 F.3d 738, 741 (11th Cir. 2000). However, a Bankruptcy Court’s findings of
fact are upheld unless they are clearly erroneous. See Id. Further, the district court is not
authorized to make independent factual findings, as that is the function of the Bankruptcy
Court. See In re Colortex, Industries, Inc., 19 F.3d 1371, 1374 (11th Cir. 1994). The Bankruptcy
Court’s equitable determinations are reviewed under an abuse of discretion standard. See In
re Red Carpet Corp. of Panama City Beach, 902 F.2d 883, 890 (11th Cir. 1990).
V. DISCUSSION
A. The Florida Department of Revenue Has Standing to Pursue Enforcement and
Collection of Domestic Support Obligations
A claim in bankruptcy involves a liability of the debtor, which includes “any right to
payment, whether or not reduced to judgment . . .” 11 U.S.C. § 101(5) (emphasis added). The
term “domestic support obligation” is defined by section 101(14A) of the Bankruptcy Code
as “a debt that accrues before, on, or after the date of the order for relief in a case under this
title” that is “owed to or recoverable by—a spouse, former spouse, or child of the debtor or
such child’s parent, legal guardian, or responsible relative; or a governmental unit.” 11
U.S.C. § 101(14A). An explanation of the practical meaning of the term “domestic support
obligation” can be found in the legislative history of the BAPCPA:
As defined in the Act, the term includes a debt owed to or recoverable by: (1)
a spouse, former spouse, or child of the debtor, or such child’s parent, legal
guardian, or responsible relative; or (2) a governmental unit. To qualify as a
domestic support obligation, the debt must be in the nature of alimony,
maintenance, or support (including assistance provided by a governmental
unit), without regard to whether such debt is expressly so designated. It must
be established or subject to establishment before, on, or after the date of the
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order of relief pursuant to: (1) a separation agreement, divorce decree, or
property settlement agreement; (2) an order of a court of record; or (3) a
determination made in accordance with applicable nonbankruptcy law by a
governmental unit.
H.R. Rep. No. 109-31, 109th Cong., 1st Sess. 59 (2005). In this appeal, the pre-petition
debts at issue involve amounts owed by a former spouse that are recoverable by a
governmental unit. Thus, they represent rights to payment that were properly classified as
claims by the Bankruptcy Court.
The DOR has standing to enforce and collect support obligations “when the obligor
has failed to make support payments and the DOR is called upon by the custodial parent to
assist in enforcing a child support order.” See Dep’t of Revenue v. McLeod, 96 So. 3d 443, 444
(Fla. 1st DCA 2012). The record reflects that Appellant’s former wife called upon the DOR
to assist her in collecting arrearages owed by Appellant. (ECF No. 2-2 at 85). In other
words, Appellant’s former wife became his creditor as a result of outstanding child support
obligations, and she asked the DOR to assist her in collecting on that debt.
Under § 501 of the Bankruptcy Code, any creditor may file a claim in a debtor’s
bankruptcy proceeding. 11 U.S.C. § 501(a). The Code defines a creditor as “an entity who
has a claim against the debtor.” 11 U.S.C. § 101(10). Under paragraph (A), only holders of
claims that arose prior to the commencement of the bankruptcy case are considered to be
creditors. Id. Therefore, a creditor is generally defined as a holder of one or more prepetition claims against the debtor. Id. This definition includes a broad spectrum of persons
who can be considered “creditors” of the debtor, including the DOR. It is clear that the
DOR is a creditor of the debtor here, Donald Alan Tobkin, and legally brought a claim in
his bankruptcy proceedings pursuant to Fla. Stat. §§ 409.2554(1), 409.2557(1) (designating
the DOR “as the state agency responsible for the administration of the child support
enforcement program, Title IV-D of the Social Security Act, 42 U.S.C. ss. 651 et seq.”). The
DORs authority includes, but is not limited to, the “enforcement, and collection of support
obligations.” Fla. Stat. § 409.2557 (emphasis added); see McLeod, 96 So. 3d at 446 (holding
that “[i]n Florida, [the] DOR is the agency charged with performing these statutorilyrequired tasks.”).
Appellant argues that the Bankruptcy Court erred in allowing the DOR to file a
claim for outstanding child and spousal support because neither his former spouse nor the
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DOR had standing to file such claims; only his children could file such a claim, and they
had not done so. (ECF No. 8). Appellant cites to Lawrence v. Hershey, 890 So. 2d 350 (Fla.
4th DCA 2004), in support of his position that neither his former wife nor the DOR has
standing. (Id.) However, that case is wholly inapplicable to the case at hand because it
relates to the support of an incapacitated adult. It has nothing to do with arrearages, but
instead with the future support of an adult child. See id. at 351 (appealing “the trial court's
dismissal of [a mother’s] paternity suit in which she sought child support for her adult
autistic child.”).
Thus, the Bankruptcy Court did not err in holding that the DOR has standing to file
DSO claims in Appellant’s bankruptcy proceedings. Furthermore, even had the Bankruptcy
Court committed error in allowing the DOR to bring these claims, Appellant’s arguments as
to standing would still fail because Appellant failed to timely appeal the Bankruptcy Court’s
determination regarding the DORs standing in a prior proceeding. The Bankruptcy Court
held a hearing on the DOR’s Motion to Convert Chapter 13 Case to Chapter 7 (ECF No. 21 at 22) on February 22, 2012, wherein Appellant made the same arguments regarding
standing presented in this appeal. (ECF No. 11 at 6). On February 23, 2012, the Bankruptcy
Court entered an Order granting the DOR’s motion converting Appellant’s bankruptcy from
a Chapter 13 case into a Chapter 7 case. (ECF No. 2-1 at 27). That order was a final order
from which the Appellant had a right to appeal. See Rosson v. Fitzgerald (In re Rosson), 545
F.3d 764, 768 (9th Cir. 2008) (citing Allen v. Old Nat'l Bank of Wash. (In re Allen), 896 F.2d
416, 418 (9th Cir. 1990) (per curiam) ("Bankruptcy orders that determine and seriously
affect substantial rights can cause irreparable harm if the losing party must wait until
bankruptcy court proceedings terminate before appealing.")). However, Appellant failed to
appeal the Bankruptcy Court’s order, and the time to do so has long since passed.
B. Dispute Concerning Appellant’s Domestic Support Obligations Resolved By
State Court
Once the DOR filed its DSO claim in Appellant’s bankruptcy, Appellant filed several
objections (ECF No. 2-1 at 19), arguing that the DOR’s claim was fraudulently filed. (ECF
No. 8 at 3). However, on February 24, 2012, the Bankruptcy Court entered an Order
abstaining from all matters relating to the determination of value as to the DSOs and
instructed the parties to obtain an order from state court determining all domestic support
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arrearages due as of September 1, 2011. (ECF No. 2-2 at 82). On May 2, 2012, a duly
noticed hearing was held in Case No. DR-05-2113, before the Circuit Court of the Ninth
Judicial Circuit, for Orange County, Florida, at which time the state court determined that
Appellant’s domestic support obligations as of September 1, 2011, totaled $162,195.00 for
child support and $21,000.00 for alimony. (Id. at 83).
“The right to the previously determined child support vests at the time the payments
are due.” Puglia v. Puglia, 600 So. 2d 484, 485 (Fla. 3d DCA 1992). In the instant case, the
Ninth Judicial Circuit for Orange County determined the amount of support arrearages
owed by Appellant as of the bankruptcy petition date. (ECF No. 2-2 at 85). These arrearages
accrued and were due and owing during the time that Appellant’s children were still minors.
(Id.) “Support obligations accruing under a court order in a domestic case become vested
rights of the payee and vested obligations of the payor which are not subject to retroactive
modifications.” Puglia v. Puglia, 600 So. 2d 484, 485 (Fla. 3d DCA 1992) (citing Larger v.
Diaz, 595 So. 2d 1092, 1992 (Fla. 3d DCA 1992); Onley v. Onley, 540 So. 2d 880 (Fla. 3d
DCA 1989)). Appellant appealed this final order to Florida’s 5th District Court of Appeals,
Case No. 5D12-992, and the 5th DCA—with the Bankruptcy Court’s permission—
proceeded with the appeal entering an order affirming the lower court’s award of domestic
support. (ECF No. 2-2 at 97). Appellant did not further appeal the order of the 5th DCA
and the time do so has passed. Therefore, the state court’s determination of amounts owed
by the Appellant in child support and alimony were correctly allowed into Appellant’s
bankruptcy proceeding as claims by the DOR.
VI. CONCLUSION
Overall, the issues Appellant presents concerning the DORs standing to bring DSO
claims in his bankruptcy proceedings were fully litigated in state court and appealed to a
district appellate court. Appellant also had the chance to make these same arguments in his
bankruptcy case, but failed to fully do so. Appellant cannot now seek to reverse
longstanding determinations that he had an opportunity to challenge earlier on in these
proceedings. Additionally, the Bankruptcy Court did not err in finding that the DOR has
standing to file DSO claims in Appellant’s bankruptcy proceedings. Therefore, the
Bankruptcy Court’s decision to allow the Florida Department of Revenue to bring domestic
support obligation claims in Appellant’s bankruptcy proceedings is AFFIRMED. The Clerk
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is directed to CLOSE this case. All pending motions, if any, are DENIED as moot.
DONE and ORDERED in Chambers, in Miami, Florida, this 20th day of March
2015.
Copies furnished to:
Counsel of Record
Donald Alan Tobkin, pro se
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