LAW OFFICES OF ROGER R MUNN JR LLC v. COLLINS

Filing 16

ORDER affirming the decision of the bankruptcy court. Ordered by US DISTRICT JUDGE CLAY D. LAND on 1/24/2024 (tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
LAW OFFICES OF ROGER R. MUNN
JR., LLC,
Appellant,
vs.
Esther Elizabeth Collins,
Appellee.

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CASE NO. 4:23-cv-119 (CDL)

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O R D E R

This bankruptcy appeal arises from the bankruptcy court’s
order denying Appellant Law Offices of Roger R. Munn Jr., LLC
(“Munn”)’s motion for new trial or for reconsideration. 1

The

bankruptcy court had previously denied Munn’s motion to object
to the discharge of his claim and to object to the confirmation
of

Appellee

Collins’s

Chapter

13

plan.

Munn

moved

the

bankruptcy court to reconsider that order or to vacate it in
favor of a new trial, which the bankruptcy court denied.
now appeals this denial.

Munn

For the reasons that follow, the Court

affirms the bankruptcy court’s order. 2

In the proceedings before the bankruptcy court, the Law Offices of
Roger R. Munn Jr., LLC and Mr. Munn himself were referred to
interchangeably without objection.
For consistency, they will be
treated as interchangeable in this order as well.
2 Munn describes his previous motion as one for a “new trial.”
The
Court will not quibble with his semantics and refers to the motion by
the name Munn uses. The bottom line is that the bankruptcy court did
not err in denying the relief Munn sought.
1

STANDARD
"District

courts

sit

in

an

appellate

capacity

when

reviewing bankruptcy court judgments; they accept the bankruptcy
court's factual findings unless they are clearly erroneous and
review legal conclusions de novo." 1944 Beach Blvd., LLC v. Live
Oak Banking Co. (In re NRP Lease Holdings, LLC), 50 F.4th 979,
982 (11th Cir. 2022).
independent

factual

The Court is not authorized to "make

findings."

Law

Sols.

of

Chicago

LLC

v.

Corbett, 971 F.3d 1299, 1304 (11th Cir. 2020)
FACTUAL BACKGROUND
The

factual

uncontested.

background

for

this

appeal

is

largely

Munn represented Collins in divorce proceedings

against her ex-husband, alongside two other attorneys: a local
counsel and a court-appointed attorney who was to represent the
best

interests

of

her

children.

Collins

prevailed

in

her

divorce and custody action and was awarded child support and
attorney’s fees from her ex-husband.

Collins never collected

any child support or attorney’s fees from her husband; she felt
unsafe doing so due to abuse that occurred during the marital
relationship.
child

support

The bankruptcy court found that Collins feared
collection

could

notify

her

ex-husband

of

her

address and compromise her and her children’s safety.
After Collins failed to pay Munn for his representation in
the divorce proceedings, Munn secured a judgment against her for
2

unpaid

attorney’s

fees,

plus

interest.

Munn

eventually

initiated a garnishment action against Collins of $797 a month
to satisfy his claim.

Shortly thereafter, Collins filed for

protection under Chapter 13 of the bankruptcy code.
Official notice of the bankruptcy action was sent to the
incorrect

address

subsequently

for

amended

Munn

Munn’s

on

November

address,

14,

and

2021.

he

Collins

received

actual

notice of the bankruptcy action on January 6, 2022. Munn filed
his proof of claim the following day.
The bankruptcy court entered an order confirming Collins’s
plan on March 18, 2022.
part

based

received.
receive

on

the

Munn challenged this confirmation, in

insufficiency

of

the

official

notice

he

The bankruptcy court ultimately found that he did not
notice

as

required

by

Federal

Rule

of

Bankruptcy

Procedure 2002 and that he was therefore not bound by the terms
of that confirmed plan.
her

plan,

which

substantively

Collins then filed a motion to modify

essentially

resubmitted

the

gave

appropriate

notice

but

Munn

same

plan

and

an

opportunity to object to the confirmation, such that he would be
bound by it if it were confirmed.
Munn

filed

an

objection

to

the

motion

to

modify

confirmation which challenged the confirmation of the plan and
the dischargeability of his claim.
hearing

on

the

motion,

which

Munn
3

The bankruptcy court held a
did

not

attend

due

to

a

medical issue.
object

to

The bankruptcy court denied Munn’s motion to

discharge

confirmation

of

the

and

overruled

plan.

Munn

his

objections

then

filed

a

reconsider or for new trial, which was denied.

to

the

motion

to

This appeal

followed that denial.
DISCUSSION
This

appeal

bankruptcy

presents

court

erred

three
in

primary

issues:

determining

that

whether

(1)

the

Collins’s

bankruptcy plan was filed in good faith and that uncollected
child support payments were not part of the bankruptcy estate;
(2) Munn’s claims based on 11 U.S.C. § 523 were procedurally
barred; and (3) Munn’s claim for attorney’s fees owed by Collins
is not a priority claim. 3
due

process

because

he

Munn also argues that he was denied

could

not

attend

the

hearing

on

the

motion to modify the confirmation.
I.

Did the Bankruptcy Court Err in Finding
Bankruptcy Plan was Filed in Good Faith?
Munn

made

bankruptcy

in

bankruptcy

court.

numerous

bad

faith,
11

arguments
all

of

U.S.C.

§

that

which

that

Collins’s

Collins

declared

were

1325(a)(3)

bankruptcy plan be proposed in good faith.

rejected

by

the

requires

that

a

Munn asserts that

Collins’s plan was proposed in bad faith because she did not
accurately disclose her full financial status.

He claims she

Munn listed ten enumerations of error in his brief, but they can be
boiled down to these three primary issues.

3

4

should have advised the bankruptcy court of the child support
judgment and arrearages that she could potentially collect from
her ex-husband.

Similarly, Munn argues she did not make good

faith efforts to collect on the child support judgments prior to
filing for bankruptcy.

He also maintains that Collins’s plan

does not comply with 11 U.S.C. § 1325(a)(4) because her plan
does not account for the child support judgment and arrearages
she can collect.

See 11 U.S.C. § 1325(a)(4) (requiring that

“the value . . . of property to be distributed under the plan
. . . is not less than the amount that would be paid on such
claim if the estate of the debtor were liquidated under Chapter
7”).
These

objections

all

rely

upon

Munn’s

contention

that

Collins’s child support judgment should be considered part of
her bankruptcy estate.

The bankruptcy court did not err in

rejecting these arguments.

Under the circumstances presented

here, “child support” is not properly part of the bankruptcy
estate.

Georgia law provides that when money “is awarded for

the support of minor children, the mother acquires no interest
in the funds, and when they are paid to her she is a mere
trustee charged with the duty of seeing that they are applied
solely for the benefit of the children.”

O’Neil v. Williams,

205 S.E.2d 226, 229 (Ga. 1974) (quoting Stewart v. Stewart, 123
S.E.2d 547, 548 (Ga. 1962)); see also Bracewell v. Kelley (In re
5

454

Bracewell),

F.3d

1234,

1243

(11th

Cir.

2006)

(“[T]he

question of whether a debtor’s interest in property is property
of

the

estate

property

and

is

a

federal

issues

question,

about

the

but

nature

the

and

definition

existence

debtor’s interest, are issues of state law.”). 4

of

of
the

The Eleventh

Circuit has determined that “property held by the debtor for the
benefit of another[,]” like the child support here, is “not part
of the bankruptcy estate.”
v.

United

866

States,

T & B Scottsdale Contractors, Inc.

F.2d

1372,

1376

(11th

Cir.

1989).

Accordingly, Munn’s arguments that Collins’s failure to account
for her child support in her bankruptcy plan evidences bad faith
are unpersuasive.

The bankruptcy court did not err in rejecting

these objections to the plan.
Munn

also

asserts

that

Collins

intentionally

filed

bankruptcy to evade his garnishment and intentionally listed the
wrong

address

action.

so

that

Munn

would

not

receive

notice

of

the

He asserts that she never intended to pay his bill.

But the bankruptcy court found that: (1) Munn rejected Collins’s
attempts to confer with him about a payment plan; (2) Collins
could

not

afford

garnishment;
proper

and

notice

her
(3)

once

bills
she

the

and

amended

mistake

regular
Munn’s
was

expenses
address

discovered.

to

under

the

give

him

Considering

Munn does not appear to contend that the bankruptcy court erred in
determining that Georgia law governs the nature of Collins's property
interest in the child support award, so this issue is not before the
Court on appeal.

4

6

these

facts,

the

bankruptcy

court

concluded

that

Collins

intended to pay her debt and did not declare bankruptcy for the
sole purpose of avoiding that debt.

As these factual findings

are not clearly erroneous, and support the bankruptcy court’s
conclusion, this Court finds that it was not error to determine
that she did not declare bankruptcy in bad faith for the sole
purpose of evading her debt to Munn.
Munn also argues that that the bankruptcy court’s approval
of

Collins’s

plan

conflicts

with

11

U.S.C.

§ 1325(b)(1)(B).

That provision prohibits approval of a plan, upon objection by
an

unsecured

debtor’s

creditor,

projected

applicable

unless

disposable

commitment

period

it

“provides

income
. . .

that

all

of

the

in

the

to

be

received

will

be

applied

payments to unsecured creditors under the plan.”

to

make

Munn asserts

that because the plan does not account for the child support
award,

it

does

disposable
§ 1325(b)(2)

not

income.
which

account
Munn’s
states

for

all

argument
that

of

Collins's

overlooks

“[f]or

purposes

projected
11
of

U.S.C.
this

subsection, the term ‘disposable income’ means current monthly
income received by the debtor . . . other than child support
payments.”

As child support payments are expressly excluded,

the bankruptcy court did not err in rejecting Munn’s argument.

7

II.

Did the Bankruptcy Court Err in Finding that Munn’s Claims
Based on 11 U.S.C. § 523 were Procedurally Barred?
Munn

rejecting

also

contends

that

the

the

dischargeability

bankruptcy

of

his

court

claim

erred

based

on

in
the

exceptions to discharge for fraud, false pretenses, or false
statement in writing under 11 U.S.C. § 523.
Court

observes

dischargeability
proceeding.”

that
of

Fed.

a

“proceeding

a

debt”

under

R.

Bankr.

Proc.

§ 523

Preliminarily, the
to

determine
is

7001(6).

an

the

“adversary

Furthermore,

a

“complaint to determine the dischargeability of a debt” under
§ 523, must be brought “no later than [sixty] days after the
first date set for the meeting of creditors.”

Fed. R. Bankr.

Proc. 4007(c).
Here, Munn had actual notice of this bankruptcy action on
January 6, 2022.
10, 2022.

The meeting of creditors occurred on January

Accordingly, Munn’s time to initiate an adversary

proceeding under § 523 started running on that date.

Because he

did not file a complaint within sixty days of January 10, 2022,
his non-dischargeability claim based on § 523 is time-barred, as
correctly held by the bankruptcy court.
III. Did the Bankruptcy Court Err in Finding that Munn’s claim
for Attorney’s Fees is Not a Priority Claim?
Munn also argues that the bankruptcy court erred in holding
that

his

claim

is

not

a

priority

claim.

He

contends

that

because his attorney’s fees were incurred in a domestic support
8

matter and directly related to a domestic support order, his
fees

constitute

claim

a

a

domestic

support

claim.

See

priority

obligation,
11

U.S.C.

rendering
§

his

507(a)(1)(A)

(indicating that “domestic support obligations that . . . are
owed to or recoverable by a spouse, former spouse, or child of
the debtor” have priority).

Munn asserts that his fees are

“recoverable by a spouse” because Collins can collect on her
judgment of attorney’s fees from her ex-husband.
Whether

an

obligation

is

a

domestic

support

obligation

depends upon “whether it is in the nature of support.”

Harrell

v. Sharp, (In re Harrell), 754 F.2d 902, 906 (11th Cir. 1985).
For example, a property settlement that does not necessitate
investigation
appropriate

into

level

a
of

spouse’s
need

domestic support order.

circumstances

would

typically

Id. at 907.

to
not

determine

the

constitute

a

Courts have held that

where a debtor was ordered to pay the attorney’s fees of his or
her former spouse resulting from a custody or divorce action,
these attorney’s fees could constitute support if they are based
on the other spouse’s ability to pay.

Strickland v. Shannon (In

re Strickland), 90 F.3d 444, 447 (11th Cir. 1996).
Here,

Collins’s

debt

to

Munn

is

not

a

domestic

support

obligation because it was not in the nature of domestic support.
Collins owes a debt to Munn that arose out of a contractual
attorney-client

relationship

in
9

which

she

selected

Munn

to

represent her in a legal matter.

Collins was not ordered to pay

Munn’s fee because her former spouse could not afford to do so
in a domestic matter.

Collins’s debt to Munn, who was her own

attorney, is not an obligation to a former spouse, child, or
their respective attorneys.
priority

claim

for

a

Therefore, Munn’s claim is not a

domestic

support

obligation,

and

the

bankruptcy court did not err in holding accordingly.
IV.

Was Munn Denied Due Process?
Lastly, Munn argues that he was denied due process when the

bankruptcy
presence

at

court
the

made

its

hearing.

decisions
Munn

without

claims

opportunity to cross-examine Collins.

this

Munn’s

physical

denied

him

the

“[T]he Due Process Clause

requires notice and the opportunity to be heard . . . at a
meaningful time and in a meaningful manner . . . .”
Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).

Grayden v.

Here, Munn had

the opportunity to brief the issues and the bankruptcy court
carefully considered his arguments.

His inability to attend the

hearing on the motion to modify confirmation did not deny him
notice and the opportunity to be heard.
CONCLUSION
For the foregoing reasons, the Court affirms the bankruptcy
court’s order denying Munn’s motion for reconsideration or for
new trial.
IT IS SO ORDERED, this 24th day of January, 2024.
10

S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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