Bartos v. Kloeppner et al

Filing 13

ORDER affirming 1 Order of the Bankruptcy Court granting summary judgment to Appellee Kloeppner(Written Opinion). Signed by Judge John R. Tunheim on October 24, 2011. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
In re:

BKY No. 10-60981

KELLY ELIZABETH KLOEPPNER,

Adv. No. 10-6036

Debtor.
DARIAN JOSEPH BARTOS,

Civil No. 11-1546 (JRT/LIB)

Appellant/Plaintiff,
v.
KELLY ELIZABETH KLOEPPNER,

MEMORANDUM OPINION AND
ORDER AFFIRMING THE
BANKRUPTCY COURT
ORDER

Appellee/Defendant.

Gregory S. Walz, WALZ LAW OFFICE, P.O. Box 1794, St Cloud, MN
56302, for appellant.
Samuel V. Calvert, SAM V. CALVERT, PA, 1011 2nd St North,
Suite 107, St Cloud, MN 56303, for appellee.
This matter is before the Court on Darian Bartos’ appeal from a final order of
United States Bankruptcy Judge Dennis D. O’Brien. (Notice of Appeal, Ex. 5, May 10,
2011, Docket No. 1.) Darian Bartos (“Bartos”) paid child support to Kelly Kloeppner
(“Kloeppner”) for a child whom he believed he fathered. (Bartos v. Kloeppner, No. 73F9-02-1614, at *3 (Minn. Dist. Ct. Apr. 6, 2010), Ex. 15, Docket No. 1.) Bartos and
Kloeppner never married. (Hr’g Tr. 18:21, Ex. 3, Apr. 26, 2011, Docket No. 1.) Bartos
took a paternity test and discovered that he was not the father. (Id. 10:1-12.) As a result,

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the state court ordered that Kloeppner return the money that Bartos paid her for child
support. (Bartos v. Kloeppner, No. 73-F9-02-1614, at *1-2.) Kloeppner filed a Chapter 7
Bankruptcy Petition seeking to discharge this obligation. (See Notice of Appeal at 1.)
Bartos objected to the discharge of this obligation citing 11 U.S.C. §§ 523(a)(5) and (15).
(Bankr. Compl., Ex. 15, at 1-3, Nov. 12, 2010, Docket No. 1.) The Bankruptcy Court
ordered summary judgment for Kloeppner and held that her debt to Bartos was
dischargeable. (Order Granting Summ. J., Ex. 7, Apr. 27, 2011, Docket No. 1.) Because
Kloeppner does not owe Bartos child support or any other nondischargeable debt, the
Court will affirm the Bankruptcy Court’s order and grant summary judgment to
Kloeppner.

ANALYSIS
I.

STANDARD OF REVIEW
In bankruptcy proceedings, the district court sits as an appellate court and applies

the same standard of review as the court of appeals. Reynolds v. Pa. Higher Educ.
Assistance Agency, 425 F.3d 526, 531 (8th Cir. 2005). This Court reviews the bankruptcy
court’s findings of fact for clear error and its conclusions of law de novo. Id. “A finding
is clearly erroneous when although there is evidence to support it[,] the reviewing court is
left with the definite and firm conviction that a mistake has been committed.” DeBold v.
Case, 452 F.3d 756, 761 (8th Cir. 2006) (internal quotation and alteration omitted).
Summary judgment is appropriate where there is no genuine dispute of material
fact and the moving party can demonstrate that it is entitled to judgment as a matter of

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law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II.

NONDISCHARGEABILITY
Bartos objects to the discharge of Kloeppner’s debt citing 11 U.S.C. §§ 523(a)(5)

and (15). 11 U.S.C. § 523(a)(5) provides that among the types of debts not discharged by
a Chapter 7 bankruptcy discharge are debts “for a domestic support obligation.” In turn,
11 U.S.C. § 101(14A) defines “domestic support obligation” as a debt that is:
(A)

owed to or recoverable by—
(i)

a spouse, former spouse, or child of the debtor or such child’s
parent, legal guardian, or responsible relative . . .

(B)

in the nature of alimony, maintenance, or support . . . of such spouse,
former spouse, or child of the debtor or such child’s parent, without
regard to whether such debt is expressly so designated; [and]

(C)

established or subject to establishment before, on, or after the date of
the order for relief in a case under this title, by reason of applicable
provisions of—
(i)

a separation agreement, divorce decree, or property settlement
agreement [or]

(ii)

an order of a court of record . . . .

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11 U.S.C. § 523(a)(15) further provides that a debt may not be discharged that is:
to a spouse, former spouse, or child of the debtor and not of the kind
described in paragraph (5) that is incurred by the debtor in the course of a
divorce or separation or in connection with a separation agreement, divorce
decree or other order of a court of record . . . .
In determining whether Kloeppner’s debt falls under one of these exceptions, the
Court must look to the substance of the state court’s award to Bartos, not solely the label
of that award. See 11 U.S.C. § 101(14A) (stating that the determination of whether a debt
is “in the nature of alimony, maintenance, or support” is “without regard to whether such
debt is expressly so designated”). The Court finds that neither the language used by the
state court nor the true nature of Bartos’ award falls under §§ 523(a)(5) or (15).
On April 6, 2010, the state court ordered that Kloeppner pay Bartos $7,558.17 “for
all money expended on behalf of the child or paid to [Kloeppner] or paid to the County of
Stearns” (including money paid to Stearns County for child support and “various
expenditures at Slumberland, Sugar Plum Daycare, etc.”), $525 “as and for all genetic
testing costs,” and disbursements in the amount of $2,539.35 (for “filing fees, transcripts,
subpoena, and other costs”), for a total of $10,622.52. (See Bartos v. Kloeppner, No. 73F9-02-1614, at *1-3.) The Court held that Bartos had “claim[s] in equity” to “recover the
child support paid” and for genetic testing costs. (Id. at *4, 6-9.) Although the Court
used the phrase “child support,” it did not award Bartos child support. Rather, the Court
ruled that Bartos could recover in equity the child support that he wrongfully paid.
The sum the Court awarded to Bartos does not fall under the plain language of 11
U.S.C. §§ 523(a)(5) or (15) for three reasons. First, Bartos is not a “spouse or former

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spouse” of Kloeppner, nor is the award for the “child of the debtor” because the award is
not intended for a child. See 11 U.S.C. §§ 523(a)(5), (15). “It would be the height of
illogic to conclude that the Creditor’s claim against the Debtor should be classified as a
priority claim for child support to be refunded to him when, in fact, it was determined
that he was not the father of the [child].” See In re Vanhook, 426 B.R. 296, 302 (Bankr.
N.D. Ill. 2010). Bartos is not within the categories of persons that fall under §§ 523(a)(5)
or (15).
Second, Bartos’ award is not “in the nature of alimony, maintenance, or support.”
Instead, it is the return of money that Bartos should never have paid Kloeppner. See 11
U.S.C. § 523(a)(5).1
Because 11 U.S.C. § 523(a)(5) requires that the debt, to be nondischargeable, must in substance function as support, the Court finds that
Plaintiff cannot solely rely on the original character of the debt owed by
him to his former [partner] to state a claim that a debt owed to him by his
former [partner] for overpayment of . . . support is non-dischargeable.
See In re Taylor, No. 11-1020 J, 2011 WL 1748617, at *5 (Bankr. D.N.M. May 5, 2011)
(emphasis original).
Third, the award was not issued pursuant to a “separation agreement, divorce
decree, or property settlement agreement.” See 11 U.S.C. §§ 523(a)(5), (15). The parties
1

See, e.g., In re Vanhook, 426 B.R. at 301(after a divorced creditor paid child support to
his ex-wife for a child that he did not father, the court held that “the judgment debt [owed to the
creditor] is not in the true nature of child support. Rather, it is merely a money judgment
awarded to the Creditor . . . .”); Norbut v. Norbut, 387 B.R. 199, 206-07 (Bankr. S.D. Ohio 2008)
(holding that the return of child support overpayment was in the nature of support, because the
state court that ordered its return looked at the economic and other circumstances of the parties
when reaching its decision); In re Drinkard, 245 B.R. 91, 94 (Bankr. N.D. Tex. 2000) (holding
that the return of an overpayment is “simply a money judgment” and is dischargeable); In re
Lutzke, 223 B.R. 552, 554-55 (Bankr. D. Oregon 1998) (holding that an overpayment in child
support was dischargeable because it was not support and was not awarded because of need).
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were never married, and the Court did not in any way characterize Bartos’ award as part
of a property settlement or separation agreement.
At oral argument, Bartos raised for the first time that Kloeppner’s debt is
nondischargeable because of her fraud. (See Bankr. Compl. at 1-2.) This issue is not
properly before the Court, and it appears to have no merit because both parties admit that
the state court rejected Bartos’ allegations of fraud. Because Bartos was never married to
Kloeppner and is not the father of her child, and because his award is not the result of a
separation agreement or otherwise nondischargeable, Bartos’ state court award does not
fall under 11 U.S.C. §§ 523(a)(5) or (15).

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that the Court AFFIRMS the Order of the Bankruptcy Court
dated April 27, 2011, granting summary judgment to Appellee Kloeppner [Docket No. 1,
Ex. 7].

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: October 24, 2011
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

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