Opinion
No. 7-02-12640 MR, Adv. No. 02-1181 M
November 26, 2003
Clarke C. Coll, Roswell, NM, for Plaintiff
Charles E. Hawthorne, Ruidosa, NM, for Reed
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
THIS MATTER is before the Court on cross motions for summary judgment. Plaintiff, Mary Louise Fraser (" Plaintiff"), filed a Complaint for Determination of Non-Dischargeable Debts Pursuant to § 523 and to Deny Discharge Pursuant to § 727 (the "Complaint") against the Debtor, Robert F. Reed (" Reed"). Reed filed a Motion for Summary Judgment and supporting affidavit on July 15, 2003 by and through his counsel, Charles E. Hawthorne (" Reed's Motion for Summary Judgment"). Plaintiff filed a Response To Reed's Motion for Summary Judgment on July 23, 2003 by and through her counsel, Clarke C. Coll (" Plaintiff's Response"). Plaintiff filed a Motion for Summary Judgment on July 18, 2003 (" Plaintiff's Motion for Summary Judgment"). Reed filed a Memorandum Brief In Opposition to Motion for Summary Judgment on August 21, 2003 (" Reed's Response").
Plaintiff seeks summary judgment on all of the claims in the Complaint. Reed seeks summary judgment on the § 523(a)(5) and the § 727 claims. After reviewing the motions and memoranda, considering the applicable code sections and relevant case law, and being otherwise informed, the Court finds:
Undisputed Material Facts
1. This bankruptcy was filed on April 15, 2002.
2. The marriage of Plaintiff and Reed was dissolved in 1984. Fraser v. Reed, DR-84-72, 12th Judicial District Court, Division I, Lincoln County, New Mexico. The Final Decree of Divorce, which incorporated the parties' Marital Settlement Agreement and Stipulation, required Reed to pay Fraser $5,000.00 upon the sale of certain property (the "Nogal property").
3. In 1997 Plaintiff brought a contempt action in the dissolution proceeding. The state court held Reed in contempt and found that Reed willfully refused to pay Plaintiff the obligations required under the Final Decree of Divorce. The state court awarded Plaintiff the following:
a. $5,000.00 plus 15% interest per annum from the date of the sale of the Nogal property in 1988, which interest totaled $7,500.00, as a sanction for Reed's indirect contempt of court.
The total judgment of $12,500.00 was offset by a contempt fine against Plaintiff in the amount of $500.00 making the total debt resulting from the sale of the property equal to $12,000.00.
b. $1,088.22 and $452.00 (totaling $1,540.22) plus interest at 8.75% per annum from April 2, 1998, representing past due portions of medical insurance premiums and medical bills incurred by Plaintiff on behalf of their minor child.
c. $4,823.00 for Plaintiff's attorney's fees plus interest and costs in pursuing the contempt action.
The Plaintiff seeks to declare nondischargeable the debt based on this order (hereinafter, the "1998 Contempt Order").
4. On or about September 30, 1993 Ellen Bramblett (" Bramblett"), Reed's girlfriend, purchased residential property located on Kansas Street in Roswell, New Mexico (the "Kansas Street property"). Bramblett used the equity from property held as her separate property to purchase of the Kansas Street property. Reed's Affidavit ¶ 5. At the mortgage bank's request, Bramblett and Reed both applied for the loan to purchase the Kansas Street property, and Reed's name was placed along with Bramblett's name on the deed. Bramblett and Reed were married on November 23, 1993. On February 25, 1998, just after the hearing in the 1998 contempt action but before the 1998 Contempt Order was entered, Reed transferred by quit claim deed his interest in the Kansas Street property to Bramblett. The deed was recorded in the Chaves County records on the same day. Bramblett's Affidavit, Ex. 6.
5. On February 14, 2002, Plaintiff filed another contempt action seeking, inter alia, to set aside the conveyance of the Kansas Street property from Reed to Bramblett. A hearing was scheduled for April 16, 2002, but was not held due to the filing of this bankruptcy on April 15, 2002. After the stay was lifted, the state court entered an order on May 30, 2003 finding that the Kansas Street property was Bramblett's separate property at the time she acquired it, but that Reed was entitled to a community lien for one-half of any enhanced value of the Kansas Street property because community funds were expended on improvements. The state court also found that Reed's transfer by quit claim deed of his interest in the Kansas Street property to Bramblett was done, "with intent to hinder, delay or defraud Mary Fraser and others as provided under § 56-10-18, NMSA 1978." Order on Verified Petition to Set Aside Conveyance, For Restraining Order and Permanent Injunction and on Court's Order to Show Cause, No. DR-84-72, filed May 30, 2003 ¶ 1 (here in after, the "2003 Contempt Order").
6. In the 2003 Contempt Order the state court also found that "Reed's refusal to make any reduction or any payments toward the amounts ordered by this court on April 2, 1998, in spite of evidence of his ability to do so, is indirect civil contempt of this Court." 2003 Contempt Order ¶ 2. Based on this finding, the state court awarded Plaintiff an undetermined amount of attorney's fees plus interest. Plaintiff also seeks to declare this debt nondischargeable.
7. In late 1999, approximately two years before Reed's bankruptcy, Bramblett sold the Kansas Street property and purchased another residence located at 1514 Latigo Circle, Roswell, New Mexico (the "Latigo property"). Bramblett and Reed executed and filed in the county records a separate property agreement stating that the Latigo property was Bramblett's separate property. Bramblett's Affidavit, Ex. 7. Reed and Bramblett resided in the Latigo Street property during the one year period before this bankruptcy.
Summary Judgment Standard
Summary judgment shall be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Bankr.Proc. 7056(c). In determining whether summary judgment should be granted, the Court will view the record in the light most favorable to the party opposing summary judgment. In re Steele 292 B.R. 422, 426 (Bankr. D. Colo. 2003) (citing In re Harris, 209 B.R. 990, 995 (10th Cir. BAP 1997)).
I. Section 523(a)(5)
Section 523(a) excepts from discharge debts,
(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for or support of such spouse or child, in connection with a separation agreement, divorce decree . . ., but not to the extent that —
(B) such debt includes a liability designated as alimony, maintenance or support, unless such liability is actually in the nature of alimony, maintenance, or support;
In Reed's Motion for Summary Judgment and supporting affidavit, he asserts that the entire indebtedness to Plaintiff is dischargeable as a matter of law because it is not a support obligation. Reed maintains that he paid the amounts awarded for medical insurance and medical bills incurred on behalf of his minor child. Reed's Affidavit ¶ 12. He contends that the unpaid debts in the amount of $5,000.00 plus interest of $7,500.00 and all attorney's fees plus interest are not in the nature of support and, therefore, do not fall under the exception to discharge in § 523(a)(5).
In Plaintiff's Response and Motion for Summary Judgment, she argues that the state court's award of $1,540.22 for medical expenses and insurance for their minor child is conclusively a non-dischargeable support obligation. She disputes Reed's assertion that he paid this debt. Plaintiff contends that the state court's finding of indirect civil contempt for Reed's failure to pay despite evidence of his ability to do so is conclusive evidence of non-payment. Plaintiff also asserts that the attorney's fees plus interest awarded by the state court are non-dischargeable under § 523(a)(5). In sum, Plaintiff argues that as a matter of law, the $1,540.22 medical expense and insurance debt plus the award of attorney's fees both in 1998 and in 2003 plus interest are non-dischargeable support obligations under § 523(a)(5). Plaintiff does not directly dispute Reed's contention that the debt for $5,000.00 plus interest of $7,500.00 is not a support obligation. The Court will deal with each type of obligation separately.
A. Nogal Property Proceeds
Reed asserts in his affidavit that this debt was part of the property division in the divorce and is not excepted from discharge under § 523(a)(5) because it is not in the nature of support. Plaintiff does not directly dispute this argument in either her Response or her Motion for Summary Judgment. Based on the undisputed facts, the Court finds that the debt in the amount of $5000.00 plus the $7,500.00 in interest relating to the sale of the Nogal property is not in the nature of support. Summary judgment will be granted in favor of Reed that this debt is not excepted from discharge under § 523(a)(5).
B. Medical Expenses
The Court finds that as a matter of law, the portion of the debt for reimbursement of medical insurance premiums and medical expenses totaling $1,540.22 plus interest are in the nature of support. Wellner v. Clark (In re Clark), 207 B.R. 651, 654 (Bankr. E. D. Mo. 1997) (finding medical insurance reimbursement obligation of former spouse was support). Therefore, the Court will grant Plaintiff's Motion for Summary Judgment that any unpaid portion of this debt is non-dischargeable under § 523(a)(5). However, because the parties dispute the outstanding amount of this debt, the Court will not grant summary judgment as to the amount due.
C. Attorney's Fees
Plaintiff argues that the attorney's fees awarded in 1998 and in 2003 by the state court are nondischargeable as fees incurred in pursuit of a delinquent support obligation. Reed does not directly dispute this assertion except by the statement in his Response and Affidavit that he has paid all obligations to Plaintiff except the $5,000.00 debt resulting from the sale of the Nogal property.
Attorney's fees incurred in custody and child support actions have been held to be a support obligation and therefore non-dischargeable under § 523(a)(5). Jones v. Jones (In re Jones), 9 F.3d 878, 882 (10th Cir. 1993) (holding that award of attorney's fees in child custody proceeding is non-dischargeable support obligation); Clark, 207 B.R. at 655 (awarding attorney's fees in judgment of dissolution where support obligations were primary issue). However, when attorney's fees are awarded in disputes involving other issues, such as property division, those fees are not excepted from discharge under § 523(a)(5). Turner v. Turner (In re Turner), 266 B.R. 491 (10th Cir. BAP 2001). In Turner, the Bankruptcy Appellate Panel upheld a finding that attorney's fees awarded in the Turners' divorce action were for both property disputes and child-related issues. Id. at 497. The Turner panel agreed with the bankruptcy court that the evidence was not clear as to which fees were awarded for each type of dispute, and upheld the bankruptcy court's determination that the Plaintiff failed to prove that the fees were related to child support. Id. at 498.
Plaintiff has claimed that the award of attorney's fees in the 1998 Contempt Order are nondischargeable without distinguishing between what amount of the total fees was incurred pursuing the child support obligations and what amount was incurred pursuing the property division obligation. Therefore, a fact issue exists as to what amount of fees, if any, would be non-dischargeable.
In the 2003 Contempt Order, the state court held, "Plaintiff is entitled to reasonable attorney's fees in an amount to be determined by the Court incurred in connection with bringing this fraudulent conveyance matter and the indirect civil contempt of court. As a sanction for such contempt and finding of fraud, interest on the attorney's fees shall accrue at fifteen percent (15%) per annum until paid." 2003 Contempt Order ¶ F. It appears that the 2003 Contempt action was primarily to set aside a fraudulent conveyance of property by Reed. The obligations from which Reed sought to protect the Kansas Street property, however, included the medical expense award. Therefore, the same fact issue is presented, that is, what portion of the fees was incurred in pursuing the support obligation and is non-dischargeable and what portion was incurred pursuing the Nogal property debt and is dischargeable.
II. Section 523(a)(15)
Section 523(a)(15) provides,
(a) A discharge under section 727 . . . does not discharge an individual debtor from any debt —
(15) 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, . . . unless —
(A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or
(B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor;
11 U.S.C. § 523(a)(15)(A) and (B).
Plaintiff next argues that if the debts imposed by the 1998 and 2003 Contempt Orders are not found to be support obligations under § 523(a)(5), the debts should be excepted from discharge under either § 523(a)(15)(A) or (B).
The first issue under § 523(a)(15) is whether the debt was incurred in the course of a divorce. See Dennison v. Hammond (In re Hammond), 236 B.R. 751, 766 (Bankr. D. Utah 1998) (holding that the initial burden of proof is on the plaintiff to establish that it is a debt incurred in divorce). Plaintiff argues that because the debts stem from Contempt Orders in the divorce proceeding, then as a matter of law, they are debts incurred in the course of a divorce. This Court agrees. The debts from the 1998 and 2003 Contempt Orders were incurred in the course of a divorce and are subject to § 523(a)(15).
Once it is established that the debts fall under this section, the next issue under § 523(a)(15) is whether the debts are nevertheless dischargeable under one of the two exceptions set forth in subsections (A) or (B) of § 523(a)(15). See Dennison, 236 B.R. at 766 (burden shifts to debtor to show inability to pay or that benefit of discharge outweighs burden of discharge).
Plaintiff asserts that the state court's finding in the 2003 Contempt Order that Reed had refused to pay any part of the debt from the 1998 Contempt Order despite his ability to pay conclusively establishes Reed's ability to pay under § 523(a)(15)(A). See 2003 Contempt Order ¶ 2. Under this reasoning, the obligations imposed in the 1998 Contempt Order would be excepted from discharge under § 523(a)(15)(A) as a matter of law and there would be no need to consider whether under § 523(a)(15)(B) a discharge of these debts financially favors Reed more than it burdens Plaintiff.
To assert issue preclusion, or collateral estoppel on Reed's ability to pay, Plaintiff must show (1) the issue to be precluded is the same as the one litigated in the earlier proceeding; (2) the issue was actually litigated in the prior proceeding; and (3) the state court's determination of that issue was necessary to the resulting final and valid judgment. Dennison, 236 B.R. at 765 (citations omitted). Plaintiff's collateral estoppel argument fails under the first of the criteria. Reed's ability to pay cannot be conclusively established based on a finding in the state court that Reed had a continuing ability to pay his obligations to Plaintiff from 1998 to May 2003. This finding concerns a different time period than the relevant time period for § 523(a)(15)(A) purposes. "The appropriate time to apply the Ability to Pay and Detriment tests [under § 523(a)(15)(A) and (B)] is at the time of trial. . . ." Samoyoa v. Jodoin (In re Jodoin), 209 B.R. 132, 142 (9th Cir. BAP 1997). Likewise, Reed's statements and schedules filed with his petition, which he argues show his inability to pay, cannot serve as conclusive evidence of his present ability to pay. Fact issues, therefore, preclude summary judgment on the issue of Reed's ability to pay under § 523(a)(15)(A).
Reed's summary of schedules shows only $2,200.00 in assets and $38,900.00 in debts and Reed's income of $1,146.00 per month with expenses in the amount of $1,680.00 per month. However, Reed recently filed a Certificate of Disclosure of Community Information Regarding Non-Filing Spouse Pursuant to NM LBR 1007-1 ("Certificate of Disclosure") showing his wife's income, which she contributes toward the monthly expenses, and should be considered when examining Reed's present ability to pay.
If Reed establishes his inability to pay, then Reed must show whether under § 523(a)(15)(B), the discharge of the debts benefits him more than it burdens Plaintiff. See Dennison, 236 B.R. at 766 (holding that once plaintiff establishes that debt was incurred in divorce; then burden shifts to debtor to show benefit of discharge outweighs detriment of discharge to plaintiff); but cf Johnson v. Johnson (In re Johnson), 212 B.R. 662, 666 (Bankr. D. Kan. 1997) (holding that under § 523(a)(15)(B), once debtor has shown benefit of discharge, burden shifts to plaintiff to show detrimental consequences of discharge). Neither party has argued that summary judgment should be granted on this subsection.
The Court will reach these issues only if it finds that Reed is unable to pay the obligations under § 523(a)(15)(A). In sum, regarding all non-support obligations stemming from the dissolution proceeding, including attorney's fees, the Court will consider whether Reed has the ability to pay these debts at the time this case is tried. If the Court determines that Reed has the ability to pay the debts under § 523(a)(15)(A), then the debts will be non-dischargeable. If the Court determines that Reed does not have the ability to pay the debts under § 523(a)(15)(A), the Court may then consider evidence of whether the parties' relative financial circumstances at the time of trial warrant a finding that the debts are non-dischargeable under § 523(a)(15)(B).
III. Section 727(a)(2)
Section 727(a) states in pertinent part,
(a) The court shall grant the debtor a discharge, unless —
(2) the debtor, with intent to hinder, delay, or defraud a creditor . . . has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed
(A) property of the debtor, within one year before the date of the filing of the petition; . . .
Plaintiff asserts that Reed's discharge should be denied under § 727(a)(2)(A) based on Reed's 1998 fraudulent transfer of his interest in the Kansas Street property to Bramblett, as determined by the state court. Reed argues that he should not be denied his Chapter 7 discharge under § 727(a)(2)(A) because the transfer of his interest in the Kansas Street property occurred more than one year before he filed his bankruptcy petition. In response, Plaintiff asserts that because Reed transferred his interest in the Kansas Street property but continued to reside in the Kansas Street property and the Latigo Street property, purchased with the sale proceeds of the Kansas Street property, he should be denied a discharge based on a "continuous concealment" of property. The continuous concealment doctrine allows denial of discharge even though a transfer occurred more than a year prior to bankruptcy if the debtor continuously conceals the transfer or a property interest during the one year period before bankruptcy. Newton v. Essres (In re Essres), 139 B.R. 958, 961 (D. Colo. 1992).
As a general rule, the exception to discharge set forth in § 727(a)(2)(A) consists of two components: 1) an act (i. e. a transfer or a concealment of property) and an improper motive (i. e., a subjective intent to hinder, delay, or defraud a creditor). Rosen v. Bezner, 996 F.2d 1527, 1531 (3rd Cir. 1993). To deny discharge the Court must find that both of these components were present during the one year before the bankruptcy was filed. Id. Consequently, Reed's discharge can only be denied on summary judgment if the uncontradicted evidence demonstrates that Reed concealed a property interest from his creditors, with the requisite intent, during the year before this bankruptcy. Id. The undisputed facts show that 1) Reed transferred his interest to Bramblett in the Kansas Street property in 1998; 2) Bramblett sold the Kansas Street property in late 1999 and purchased the Latigo Street property with the proceeds; 3) Reed and Bramblett executed and recorded an agreement stating that the Latigo Street property was Bramblett's separate property; and 4) Reed resided in the Latigo Street property during the one year period before the bankruptcy.
Clearly, the transfer itself cannot be the basis for a denial of discharge because it occurred approximately five years before the filing. At that time, according to the state court, Reed fraudulently transferred his one-half interest in the enhanced value of the Kansas Street property. The transfer was not concealed during the one year period before the bankruptcy because the quit claim deed was recorded.
The focus here is whether Reed had a property interest in property in which he resided, i. e. the Latigo Street property, that he concealed with intent to defraud creditors during the year before his bankruptcy filing. See Rosen 966 F.2d at 1532 (noting that the critical inquiry is "whether there is concealment of property, not whether there is concealment of a transfer.") (emphasis in original). As correctly noted by the court in Rosen, a concealment may be present where the transfer of title represents to the world that the debtor has transferred away all his interest in the property while in reality he has retained some secret interest — a secret interest of which retention of the benefits of ownership may be evidence. Id. at 1532. Whether a debtor enjoys any beneficial interest in the property can be evidence that a continuing concealment of a property interest is taking place. Id.
For purposes of summary judgment the Court must consider whether the undisputed facts show that during the one year period before the bankruptcy, Reed retained an interest in the property in which he resided, i. e. the Latigo Street property, that he fraudulently concealed from creditors. The undisputed facts show that Reed lived in the Latigo Street property during the year before bankruptcy.
However, Reed executed a separate property agreement at the time the Latigo Street property was acquired that was recorded in the public real estate records. Under this agreement, Reed represented to all creditors that he had no interest in the Latigo Street property.
As stated by the court in Anderson v. Hooper (In re Hooper), 274 B.R. 210, 216 (Bankr. S. C. 2001), the typical scenario in which courts find concealment of a secret interest is where, after transferring the property, the debtor continues to live on the property and makes mortgage, tax and or insurance payments. Plaintiff makes no such allegations here no does she point to other indicia of ownership from which the Court could infer that in the one year period before bankruptcy, Reed possessed some secret interest in the Latigo property that he concealed from creditors with intent to defraud them. In sum, Plaintiff has not presented evidence sufficient to rebut the publically recorded separate property agreement showing that Reed has no ownership interest in the Latigo Street property. See Berland v. Mussa (In re Mussa), 215 B.R. 158, 174 (Bankr. N. D. Ill. 1997) (noting that merely residing in the transferred residence without accompanying indicia of ownership did not constitute concealment). Therefore, the Court holds that as a matter of law, Reed cannot be denied a discharge under § 727(a)(2)(A) under the continuing concealment doctrine. The Court will grant summary judgment in Reed's favor on this issue.
See also Keeney v. Smith (In re Keeney), 227 F.3d 679, 683-84 (6th Cir. 2000) (finding a beneficial interest where the debtor lived rent-free on property he purchased in his parents' names yet the debtor made the mortgage payments); Thibodeaux v. Olivier (In re Olivier), 819 F.2d 550, 554 (5th Cir. 1987) (finding a significant beneficial interest retained where the debtor continued to live on the property, insured and maintained it); Friedell v. Kauffman (In the Matter of Kauffman), 675 F.2d 127, 128 (7th Cir. 1981) (finding concealment of an interest where the debtor lived on the property, used the property as collateral for loans, and made mortgage, tax, and insurance payments); Rhode Island Depositors Economic Protection Corp. v. Hayes (In re Hayes), 229 B.R. 253, 262 (1st Cir. BAP 1999) (affirming bankruptcy court's finding of secret interest evidenced by the debtors using the "transferred" property as security to their attorney for their attorney's fees); Penner v. Penner (In re Penner), 107 B.R. 171, 175 (Bankr. N. D. Ind. 1989) (finding a sufficient beneficial interest retained in transferred dairy where the debtor continued to work and manage the dairy and income from the dairy was used to pay the debtor's personal expenses).
Section 727(a)(4) provides that the Court shall grant the debtor a discharge unless
(4) the debtor knowingly and fraudulently, in or in connection with the case —
(A) made a false oath or account;. . . or
(D) withheld from an officer of the estate entitled to possession under this title, any recorded information, including books, documents, records, and papers, relating to the debtor's property or financial affairs;
Plaintiff argues that Reed knowingly and fraudulently failed to disclose his wife's income on Schedule I, and failed to disclose his interest in other property. Plaintiff does not specify what property Reed failed to report. Reed argues that he did not knowingly or fraudulently conceal his wife's income. It is undisputed that Reed did not report his wife's income and admitted he co-mingled his earnings with hers at the creditors' meeting. Reed later filed a Certificate of Disclosure reporting his wife's income.
Whether Reed should be denied a discharge under § 727(a)(4) cannot be determined on summary judgment. Fact issues remain concerning whether he intentionally and fraudulently omitted his wife's income from his schedules. Summary judgment on this claim is therefore inappropriate.
WHEREFORE, it is hereby ordered as follows:
1. Nogal Property Proceeds:
a. Section 523(a)(5): The Court grants Reed summary judgment that the debt to Plaintiff from the proceeds of sale of the Nogal property in the amount of $5,000.00 plus interest in the amount of $7,500.00 is not a support obligation and is therefore, not excepted from discharge under § 523(a)(5).
b. Section § 523(a)(15): The Court finds that as a matter of law, the debt was "incurred by the debtor in the course of a divorce or separation. . . ." However, material fact issues exist as to whether this debt is dischargeable under either of the two exceptions contained in § 523(a)(15)(A) or (B); therefore, summary judgment is denied under those exceptions.
2. Medical Expenses: The Court grants summary judgment in favor of Plaintiff that the debt for medical expenses plus interest is a support obligation and is excepted from discharge under § 523(a)(5). However, as to the amount of this debt, summary judgment is denied.
3. Attorney's Fees:
a. Section 523(a)(5): The Court denies Plaintiff summary judgment on the claim that the total amount of the awards for attorney's fees in the 1998 Contempt Order and in the 2003 Contempt Order are support obligations and excepted from discharge under § 523(a)(5). However, material fact issues are raised as to what portion of the attorney's fees was incurred pursuing the child support obligation and therefore what portion is non-dischargeable under § 523(a)(5).
b. Section 523(a)(15): As for the attorney's fees determined to be non-support related, the Court holds that as a matter of law, these were "incurred by the debtor in the course of a divorce or separation. . . ." However, material fact issues exist as to whether this portion of the attorney's fees is dischargeable under either of the two exceptions contained in § 523(a)(15)(A) or (B); therefore, summary judgment is denied under those exceptions.
4. Section 727(a)(2)(A): Summary Judgment is granted in favor of Reed on the claim for denial of discharge under § 727(a)(2)(A) because there is no evidence showing that Reed fraudulently transferred or concealed his interest in property during the year before the bankruptcy was filed.
5. Section 727(a)(4): Summary Judgment is denied on the claim for denial of discharge under § 727(a)(4) because material fact issues are raised as to whether Reed knowingly and fraudulently omitted information from his schedules and statements filed in this bankruptcy.
A judgment will be entered in accordance with this Order.