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Opinion 403

Case Name: 

Dennison v Hammond (In re Hammond), 236 B.R.751 (Bankr.D.Utah)

Judge: 
Judge Boulden
Date: 
Dec-17-1998
Case Number(s): 
97PB-2227
Status: 

PUBLISHED

Body: 

Debtor's ex-spouse filed a nondischargeability action under 11 U.S.C. §523(a)(5) and 11 U.S.C. §523(a)(15). The court found the debt dischargeable under 11 U.S.C. §523(a)(5) because the ex-spouse failed to prove by a preponderance of the evidence that the parties intended the debt to be in the nature of support at the time of the divorce decree. Because the court did not find that the parties intended the debt to be in the nature of support, it did not reach the issue of whether the substance of the debt was in the nature of support. Sampson v. Sampson (In re Sampson) , 997 F.2d 717, 723 (10th Cir. 1993). However, the court found the debt nondischargeable under 11 U.S.C. §523(a)(15) because the debtor failed to meet his burden of proving either of the exceptions to nondischargeability under 11 U.S.C. §523(a)(15)(A) or (B). At the time of trial, the debtor had the ability to make payments on the debt from income not reasonably necessary for the maintenance or support of the debtor or a dependent of the debtor. The court excluded contributions to the debtor's 401(k) plan and charitable contributions in making this determination. Reviewing the evidence presented under a totality of the circumstances analysis and as it specifically relates to the eleven factors set forth in Hart v. Molino (In re Molino) , 225 B.R. 904, 909 (6th Cir. BAP 1998), the court concluded that the debtor had not shown that discharging the debt would result in a benefit to the debtor that outweighs the detrimental consequences to the ex-spouse.

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Opinion 403
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