In re Abeyta
UNPUBLISHED
Debtors sought an ex parte order to compel the Utah Office of Recovery Services to show cause why it should not be held in contempt for garnishing debtor's wages and attaching a tax refund, post-filing of their chapter 7 petition, as well as post-discharge. Debtors claimed that the ORS debt was for "child support," but that the debt was not "in connection with a separation agreement, divorce decree, or property settlement agreement," as required by 11 U.S.C. § 523(a)(5), and was therefore dischargeable. The court denied debtors' motion, without ruling on the § 523(a)(5) issue, on the ground that postpetition earnings are not property of a chapter 7 estate. In addition, as the stay was lifted upon discharge, there was no basis to hold ORS in contempt for violating the automatic stay, and debtors had not sought relief based on violation of the post-discharge injunction pursuant to 11 U.S.C. § 524(a)(2). The court noted that the dischargeability provisions of the Bankruptcy Code are not self-executing, and that the proper procedure for determining whether a debt was discharged is the filing of a complaint pursuant to Bankr. Rule 4007. However, in order to do so, debtors would first have to file a motion to reopen their case.