that there was no violation of the automatic stay and that the apple had no affirmative duty to act in this matter the court trial court erred as a matter of law and finding that there was no matter to be stayed the trial court also erred as a matter of law that the actually in action was not a violation this case is primarily about the automatic stay which is the backbone of the bankruptcy code in this situation the parties have been involved in an extensive domestic relations dispute the domestic relations court had issued an order regarding a property division for mr wollop or to pay to miss cargo in july of two thousand and thirteen the miss work go through virtually missed until he filed a motion to show cause for failing to pay the property settlement a hearing was held a few weeks settlement in order to avoid contempt he was given and till october first of two thousand and thirteen up to her fourth of two thousand and thirteen mr will of her filed for protection into chapter thirteen of the bankruptcy co on the day of the of the hearing on october eighth the court allowed the parties some time to see if they could reach some kind of resolution percy went to the court transcript which is part of the record the judge allowed ten to fifteen minutes for the parties to confer for the attorneys to confer with their clients and with each other regarding a possible resolution finding that there was no resolution the court went on the record to find that would be sentenced to thirty days incarceration however he could avoid any current incarceration if he paid the contempt amount which was the property settlement the court also found that at any point in time during those thirty days should he pay the amount he would be released immediately the court asked the parties if they were ready to proceed no one other than mr will burn his attorney offered eddie action to stop the sentencing on that day by an agreement that was filed for record and reflected in the court docket in the condition was that it when he was released pending further education in the bankruptcy court lawrence were filed this action to find the defendants in violation of the automatic stay because there was a contempt for seating which was essentially geared towards collecting the payment of the debt further he he filed a this case was filed because the not only did they not take any action the parties did nothing to proceed with to stop the court from finding him in contempt the main issue that was before the trial court that was argued by the appleby's was whether or not this was a matter of civil contempt or criminal contempt there's a lot of case law specifically us bayshore in the six or eight here that defines civil versus criminal contempt essentially in civil contempt if the party can pay the purge amount and basically control whether or not he gets punished by incarceration it's a civil matter essential to that and the court is a vehicle to enforce collection of the debt in a criminal contempt essential the the court is punishing the party for violating their order and upsetting the dignity of the court in this situation the contempt was merely just to effectuate payment of the debt in the transcript that was but that's included in the record the message to the domestic questions court judge had indicated that she would take any settlement that the parties would reach and that as long as he paid he didn't have to go to jail there is no indication that the court was upset with with mr waller or anything that had transpired the court just wanted some kind of resolution so essentially the applebee's were using the court as a vehicle to enforce payment on that obligation the the trial court erred in finding that there was actually no matter to the state the court trial court found that the contempt matter had already been resolved and the sentencings was sentencing it was just a follow through of the prior contempt that was found in july of two thousand and thirteen if that were the case any time a creditor gets a judgment in a court or  type of post judgment collection activity for example garnishing of wages or a foreclosure sale or a levy of property repossession of property and any time that the creditor has last acted and then the courts just following through with whatever was requested that would be ok based upon the fact that the court indicated that this was just a follow through of the court order a contempt matter in domestic relations court to the record and to some facts at the trial of this matter now is disputing the chronology of the case several courts have found even that in a situation where a creditor has attempted to get an even execution for example a show cause for not appearing for a debtor's of the am or for providing certain discovery even when the court orders a bench warrant on a show cause there are several courts that have found that even in that situation even though it's based upon not complying with the court order that still basically a civil matter and that it's really still just a collection of  and arrest the debtor in order to basically collect on that judgment in reading manuals as an idaho case a creditor did have the authority to question a bench warrant  a sensually the employees here say that they had no power to do anything to stop the motion to show cause even though it was for the collection of their benefit but other courses other cases have decided that yes since they put that into however under the bankruptcy code the creditors have an affirmative duty to stop what they've put into action for example judge spear in the in regards to case had determined that there is an affirmative duty even to stop third parties from and that a court spontaneously decided that they were going to convert a civil matter into a criminal contempt matter and the court held that even though it was of the judge only of the judge's own volition that the creditors were still complicit they still participated in the hearing and if we look at the trial court's decision in this matter where the court found that the cutter's had no affirmative duty to act they could basically file an execution and and just let things slide they would never have to take action and that really would completely erode the purpose of the bankruptc stay for those reasons we asked the court to reverse the trial court's decision finding that there was no state violation and that there was no affirmative duty to collect or to take action to stop the  domestic relations proceeding with her ex husband lawrence well before before we get started i just wanted to judge humphrey i guess thank you for your service congratulate you for the conclusion of your service will pull your colleagues will let you go off dismissal of this action for two reasons first the bankruptcy court properly fond that the debtors contempt sentence was not a violation of section three sixty two the automatic stay provision and second the bankruptcy court indicated that what the defendants were engaged in through the contempt mechanism was the collection of a debt i would submit that this argument was rejected by the by the  bankruptcy court judge who made a specific finding that is the that has not been attacked is clearly erroneous that the matter before the domestic relations court was the court's enforcement of its prior determination walberg had been held in contempt of court for his repeated failure to pay a property settlement award are you saying mr sullivan that that the domestic relations judge's order was  collect the property division the evidence that we have is the kwan ology of events as well as the transcript hearing from the domestic relations sentencing what was in a transcript i know to cro ok he ordered to be paid that he didn't of pay it therefore she said that it is in part i think the important aspect from the chronology is the fact that the that the the instrument that began this process was the show cause the motion for show cause that had been filed on behalf of mr skurka because mr waller had not paid the proper division that issue was adjudicated in july of two thousand and thirteen where the domestic relations court found mr wolf in contempt of court for his past violations of paying a property settlement award at that hearing he was specifically found to be in contempt and given a period of time to purge that contempt he was given till october first of two thousand and thirteen to prove that contempt he failed to do so and it wasn't till four days after the time had expired within which he was permitted to purchase contempt that he filed for bankruptcy protection prior to him filing for bankruptcy when the court found him in contempt and concluded that he had until or told him that he had until october first they said if the court indicated that if you don't purge this contempt by october fourth we will convene a sentencing hearing on october eighth under those circumstances and so from that crowd allergy it's clear i believe that the show cause order to show cause motion excuse me it was filed by my client on behalf of  concluded at the end of the july twenty seventh hearing where it was granted and mister was fronting the contempt in addition to that the record demonstrates the discussions that the domestic relations court engaged in before sentencing mr walsh or she was made aware of the bankruptcy stay she had indicated on the record that she had done her own independent research as to whether or not the bankruptcy state precluded her from proceeding with the sentencing for mr will pursue violation of contempt and concluded that based upon that research that she was within her authority to enforce her order and punish m his violations of that order but is there anything in the record that state that where she state the basis other for her conclusion that this they did not apply other than the and the attorneys president the opportunity to prevent it to present additional information argument authority to her that would cause her to reconsider her inclination that lead to me and i next question what did your client do to try to stop the court than meth to relation to court proceeding my client was made sure that the judge was aware of the fact that the bankruptcy petition had been filed and that there was an automatic stay pursuant to section three sixty two my client did not advocate that the court proceed with the sentencing hearing nor did she affirmatively request that the court not to proceed  your motion for early forms and bankruptcy court well i think that my client i believe was operating under the assumption that she wasn't a necessary party to these proceedings this was an effort  the domestic relations court to enforce its prior court order certainly my client attended the sentencing hearing why did she do that well presumably to make sure that the court was aware of the fact that there was the bankruptcy stay in address any questions that the court may have but she did not actively participate in the hearing and take a position that the domestic relations court should proceed with the hearing but i appreciate and really understand the position of your client that you you violate the state if you go to this here and say by the way i want this money paid with the next number of days i'll take in installments hundred dollar bills or whatever you want to say because i think that clearly sets it up the other way but isn't there some sort of obligation to say to the domestic court judge listen why don't we just hold here for a bit will go to the bankruptcy court get some proof we need to then we can come back and mean the timing isn't all that critical  been a long time to say this hasn't been paid anyway that's why i don't understand i think it's a somewhat of a fallacy in the opponents argument to suggest that my client had the ability to dictate to the domestic relations court how to run her docket in fact the parties mr walters counsel did ask for at the domestic relations store to continue the sentencing hearing so that these issues could be brought to the back to court and the and the domestic relations court refused to do so believe that she was within her right  proceed with the enforcement of her prior contempt order and did so and so the notion that that my client the attorney for mr skurka has the ability to direct the domestic relations court in terms of what action to take i think is is misplaced you don't think he could have said judge stop stop let us go that bankrupt require attain an order from the bankruptcy court and we'll be back so you i believe my client discharged her obligations under the bankruptcy code by making sure that the domestic relations court was aware of the fact that a bankruptcy had been filed and that a stay that there was an automatic  stop the domestic relations court from proceeding well it became apparent from the judge's comments that she was intent on proceeding because after she had conducted her research she believed she had the ability to enforce her prior contempt order  below made a specific factual finding in page forty two of the trial transcript that the matter before the court at the sentencing hearing was the court's it attempts to enforce the show cause i'm sorry that the courts some way indicated to the to the state court judge that whether it's withdraw concert or stop this proceeding  that that would have closed the state court judge and the fact that she needed to wait at least well i think in the in the bankruptcy court judge found that our clients took no actions to attempt to compromise the state by seeking to go sheed or to discuss the payment of terms with the collection of the debt and so we believe that our client has discharged its obligation to the to the domestic relations court of the bank which is such i see him into is you're you're position is there any dispute back that or is it just construing the undisputed facts i don't know that there are any disputed issues of fact certainly there were a number of stipulations of fact the underlying to mr relations record was stipulated to the trial to the bankruptcy court did make a number of factual findings in its in its conclusion of the matter i don't believe those  factual findings have been contested on appeal and or argued that they were clearly erroneous which i believe is the appropriate standard so i don't as i stand here i don't think recall any issues of fact that are in dispute judge i have just one more follow up question i'm sorry but would i'm sure we'll get the suggested this is his job not mine to do that but you never have the opportunity presented a proof whatsoever at the bankruptcy court level if this court reverses and sends it back to the bankruptcy court would you want to go forward with your proofs on liability or are you satisfied that what was done was done and you just leave like that because procedurally you never have a chance to put on any witness if i remember correctly we moved for dismissal the conclusion of mr wall of first case in chief right that was granted so we did not put on any evidence that's correct as the court may recall the domestic relations court was it to domestic relations judge was a defendant in this case they obtained summary judgment on an immunity basis so there is at least the potential that there may be an effort to call the domestic relations court judge as a witness whether or not we would be successful in compelling  testimony i guess remains to be seen but certainly in the day of the hearing i don't she was not there to testify as with this we're going to supporting it at that time right because of the whole discussion about who needs to be separated and things like that i remember seeing that in the transcript thank you to addresses the issue about whether or not jennifer scarecrow and also leslie gentilly had any opportunity to stop judge burroughs from the sentencing first of all the contempt motion and already been ruled on there was no motion to withdraw it was the only thing that was remaining was a court order litigants cannot withdraw a court order only the court can vacate a court order and judge burroughs clearly indicated that she was going to proceed with this case as to be a little colloquial the attorneys could have stood on their head and it would have stopped judge gross from proceeding in fact it could have moved to  cate that order in a day certainly a motion could have been filed however the judge burroughs had indicated that she was going to proceed in fact on page four of the transcript after  attorney asked that the matter be continued for thirty days she indicated that after discussion in chambers that was are going to happen she was not going to consider any continuances the judge and made up her mind and again as a practical matter there was nothing jennifer scurrilously gentilly could do to stop judge burrows from proceeding it didn't they have an obligation to try i don't think so your honor because well were there was an attempt to try to the extent that the judge was made aware that there was a bankruptcy filed and what the provisions of the stay were judge burroughs said she researched the issue in the ninth circuit of the ohio appellate courts and determined that there was nothing to prevent her from proceeding so that to the extent that there was an attempt to try that that a template had already occurred by the fact that judge there's a bankruptcy filed in the judge said i don't care i'm proceeding that's in the record of the transcript of the proceedings on the sentencing but again there's no evidence i still heard no evidence that your client either then tried to do anything to prevent the domestic proceeding and that things that are not other than what i what i just said however i don't think a litigant is required to do a futile act and it clearly would have been a futile act to to keep arguing with the judge about this because the judge clearly indicated she was proceeding so to keep pounding the judge on something that the judge already made up her mind about that but but as an attorney does an attorney have bad obligation to to if they believe the judge is not proceeding and don't to do it every day they disagree with the judge and say judge we disagree we think that we need to think we need to go to a bankruptcy court and get an order from the bankruptcy whether the judge has already indicated she bruce meeting before the judge took the bench in we don't have them on the record and i understand why not but again i'm sympathetic to your client's plight in that if you ask for money you violate the automatic the bankruptcy court to get the state that was all said apparently in chambers in the domestic court judge who don't care about that i've done my own research and we need to go forward and that pretty much what i'm hearing you say i'll be honest with the court i wasn't in chambers so i can't write a repeat what's in that what was said in the chambers but it seems like that's what you have to suppose yes that was i'm sure discussed because otherwise the judge wouldn't have said i've researched this issue and i don't believe th we would suggest they might be persuasive on the court also the allergy that while labor gives that to a creditor debtor relationship does not apply in this case this is a contempt nor court relationship issue this is not this has nothing to do with the floodgates will be open for post judgment collection proceedings once this is still contempt proceeding not a criminal contempt proceeding you know it's well getting a muddled here by suggesting that to enforce a civil contempt proceeding it was to enforce the court's order finding well labor was in contempt ok so if you don't pay your visa bill court enters judgment against you then the court orders you to pay that well that when is and you don't pay that and the court sent to you to jail suggests and a judgment does not in order to pay so i don't think you would ever have a situation but i'm no i'm saying after after the judgment let's say the judge does order you to to to pay there's an execution whatever you want to call in a judge orders you know well that would be a civil that would be a civil execution on a judgment and that why is this different than a thimble execution and a judge because this is this is a kind eyes sentencing on a contempt and the relationship now is between the court and the contemporary as set forth in the rogers case once the court determined that while labor was in contempt that ended skirt but then we have the fallback of cleary who saying listen whatever you know the parties agreed to i'm going to accept them again your client can't say we want this because it's a violation story b weeks that's when i struggled with that might have been crossing the line to a state by a layman right absolutely so it but it again the relationship at the sentencing is between the court and the contender there was really nothing that required telly to be there in their participation was very very very limited all the court said was has the temp and purged and the answer was no there wasn't any other discussion so this case had been at it than necessary but going back to the concept of the court making factual findings the bankruptcy court made factual findings that there was no attempt to collect a debt and there was no stay violation because they would have decided the case differently based upon those facts so yes that's always a question of you apply the lot of the facts and judge prey smith applied the law as she saw it to the the apple has had indicated in their statement that the there was no action taken by the applebee's to do anything to stop the process the entire reason for the contempt in the first place was a collection of the debt as as you've noted the the domestic relations court judge even indicated on the record that she would be happy to take whatever agreement they came up with and that she would do that that is a clear indication that she was not trying to pull the dignity of court she was not upset with mr she wasn't trying to punish him for what he was doing in her court you could probably see from the transcript that this was a long and drawn out process in general so i don't think that the judge was in any way shape or form trying to punish him for one non payment of the stat the employees are trying to shift the burden on the debtor to prove the automatic stay the automatic stay is automatic when a party who is going to benefit from a collection proceeding they also take action that is a violation  the northern just a who has already found again in regard to read them back that the failure to act is an act when the party can stop something from happening but they choose not to that is an act that's a violation of the automatic stay there's no dispute here that the employees were part of the hearing they showed up they took four days before the hearing without doing anything to stop them the sentencing again addressing the issue about whether or not this was a civil contempt or a criminal contempt that is still accepted by section benefit the complainant if the result of the contempt is to coerce someone to do something or to pay something that is civil contempt that is the type of contempt that is stayed by the automatic sta and the employees cannot sit by and watch the court do this without taking any action to try to stop what they themselves have put into place at any point in time they would have been able to again ask the court to hold off on the sentencing they could have withdrawn their motion to show cause any time there is a judgment a creditor can ask a court to vacate a foreclosure sale they can ask a court to vacate judgment the hard to see case had found a violation of stay where the parties weren't even do it if they filed a notice with the state they were to take it in the affirmative action but the court found just pure found that they needed to actually make sure that another party did not take action against the doubter so certainly they could have taken action with the domestic relations court in order to stop what was going  on the the employees were definitely necessary parties to the action if not for that there would have been no motion show cause no contempt and no sentencing hearing for these reasons lawrence where is asking this court to find that the trial court erred as a matter of law when the determination determination was made that there was no state violation and that the apple has had no affirmative duty to