i'm here today to speak to the court and argue on behalf of my client matthew ashworth mr ashworth is an individual who has now completed a five year chapter thirteen plan with his final payment being made in january of two thousand and sixteen the plan has been fully funded what remains to be determined by this court is whether or not the claim of the former spouse has been discharged and whether that claim should have been paid anything outside the plant i checked with the website of the courts this morning to determine and what i learned was that the total amount that's been paid by my client into this plan over the last five years is sixty eight thousand four hundred and forty one dollars however the claim of his era got his former wife has been paid by wage garnishment outside the plan to the tune of ninety thousand dollars during that very same period what makes mr ashworth situation unique is that after a five and a half year marriage he ended up with an obligation fold together out of two separate lawsuits that gave rise to an obligation labeled to be spousal support and pursuant to which he has the obligation to pay seventeen years of alimony as is characterized by the state of tennessee through a woman who has been married for two for all but ten months following the divorce we have maintained throughout that the folding together of two claims is what makes this ca quite unique and distinguishable from simply another attack on the spousal support obligation while i'm sure the court is well familiar with the facts of the record i'd like to just highlight that what we have here is an individual that without dispute failed to maintain his marital vows of fidelity entered into a brief sexual encounter the law i'm not looking to enter into a moral judgment i just not sure why bankruptcy court or federal court generally should get involved in a of obligations that were worked out in a tennessee and what they call their family court why why do we want to stick our nose into that tent when your client can i think did seek realignment from the tennessee court and that's not what tennessee was interested in giving him why why come to us because the bankruptcy court is a bank is a court of equity that is there to make certain that the treatment of all creditors is fair and equitable and there's no other creditor here saying i've been screwed because of this it's your client that's the moving for syr that may be true but there are other creditors with lesser claims who have been paid absolutely nothing through this plan and will receive absolutely nothing through this plan because if fact all of the vet oxygen was sucked out of the room by one claim which by the two parties actions was created if you want to say out of the fabric of two lawsuits first we have a divorce case of a relatively short marriage this should not have given rise to a lengthy obligation at all however there was a ten million dollar lawsuit filed by heir got seeking damages because she contract did her piece simplex one as a result of that settlement we have these two claims merged together suddenly the ten million dollars claim becomes a one dollar claim and such other further consideration as contained in the divorce decree and that was the deal that was done it was a deal that was done and it's not uncommon for family law litigants to cobble together settlements that will maximize resources for the two of them so as to facilitate settlement but when they do so at the expense of other creditors that's where the bankruptcy court has its principles that all creditors are to be treated fairly and equitably and a creditor cannot by its by by this kind of an arrangement would be the principal beneficiary if your arguments prevailed the the other creditors the credit card companies those that were not a client who sheds an obligation for years to come but i'm sorry i didn't wouldn't your client wouldn't he be sharing an obligation for years to come that is true he would also benefit and that's what strikes me is the motivation behind this and one of the reasons why we should encourage people to try a second bite but come into bankruptcy court and this well i case tell me why we should i mean that's really i try to put it on the table i just don't know why why federal law by bankruptcy court should be encouraged to redo what starts out at least as a family court obligation because the bankruptcy court has a higher duty to make certain that fairness prevails that if the parties in a conference room in attorney's office take two lawsuits and meld them together and label it as support and by doing so essentially ensure that all of the resources available to the pay or will be directed no matter that he might file bankruptcy sort of percent of those resources would be directed to the payment that clean and there has been in i can't hear you i anticipated that would be an important question and i'd like to address the court that's the case and binds so you tell me what are the four frock years of sternberg what's the evidence in this case why they don't fit why why we should follow mr and if i might your honor i thought leave that in my research one of the reasons that the court can consider the sternberg decision without an end bank panel because that was something i was a bit surprised when i received word that we would have oral argument i thought well this is a case that's going to have to go in bank until it dawned on me that there's been nine hundred pound gorilla in the room the whole time so long that i don't see it any longer and i'm following user if i guess play was to really assess what it is  that we have had a substantial legislative change which alters this landscape entirely when sternberg was written the issue between five twenty three claim or not of i'm sorry should his bankruptcy code that loosely five twenty three eighty five is a section of the code eleven u s c five twenty three a five one of the longest standing provisions of the bankruptcy code which makes non dischargeable what was then called a support obligation and in hundred four we created a new obligation which was called a five twenty three a fifteen obligation which is a marital obligation there distinguishable because they both come out of it out of a marital relationship but one is for support and the other by definition cannot be in the nature support that was the landscape when the sternberg decision was decided but sense then we have had a major change in the laws in two thousand and five congress an act of what is called the bankruptcy abuse prevention and consumer protection act understandably referred to his baps e p a baps e p a elevated for the first time support obligations to a priority status so high that they elevated it above the i r s which had held that position for many and many years so now suddenly when you characterize a debt as being support the new term being domestic support obligation which is now found in a definition provided in the same code in section one zero one subsection fourteen a that is intended to create a more uniform nationwide standard for the treatment of domestic support obligations under these circumstances with the characterization of this claim becoming one of domestic support for the first time and now has priority status it becomes paid ahead of all other creditors this did not exist with stern sternberg limit itself to a two party dispute by giving it this preferential status we have taken it to sparty just through and turned it into one that affects all parties to the proceedings so i would refer to respect we submit to your honor's have the power to read salman the rule that says that you never look beyond the intent of the parties and that you have the power to say that the support obligation must not only be one that was intended to be a support obligation but at least in the unique context of a chapter thirteen it must be continuing to serve that support obligation when before two thousand  creditors simply were not able to prevail no one under the law prior to two thousand and five both the five twenty three a five support obligation and a five twenty three fifteen marital obligation were not given priority status and therefore it was a question of discharge ability a two party dispute but with the enactment of babsy v a day elevated the domestic support obligation a new newly coined term to the highest priority status to ensure it would be paid head of all other claims at the expense of those other claims uniquely they also changed why does that change the water on the beans as far as looking at the expressed intent of the contracting parties well that is where as i have made the set forth in the brief that we are advocating that the court consider the rule that has been raised i'm sorry i'm running out calvin i'm sorry ana the calhoun case is the one and ironically this case rose with this case actually the family law cases within the six circuit and in the sixth circuit calhoun has erekat have mutual obligations of support to sustain one another but when mr erekat undertake undertook that obligation to the claimant in this case he became the person who is obligated to support his wife not her former husband any longer now the parties contract it around that that's undisputed but the fact that the parties contracted around it to make this debt continue to be paid notwithstanding the absence of any support is exactly why the court the novel concept it's actually been advanced by the national organization of women saying that needs should not be based upon the status of your husband but again i would look to the very testimony quoted in this brief mrs erekat took an awfully low opinion of herself because she stated in her testimony that because she had contracted herpes simplex one which is actually a very common illnesses treatable with the over the counter point ment's like a sore on the lip but she still some described herself as damaged goods who would no longer attract a man of the means of my client and therefore when having to re enter the pool of eligible women as a less desirable potential candidate she would need something to make her more attractive and she perceived having a stream of money would serve that function now i would respectfully submit that at least in accordance with our values that traditionally we do not believe that any man or woman should be supporting a former spouse who has remarried it seems to run contrary to the principle that you look to your spouse for mutual support and to continue to compel mr ashworth to pay support under these circumstances seems unjust but what makes it unjust even more so is that those payments are coming and the national rest of creditors in this rational get to talk to his alimony payments from his income rose it's a small consolation position than the other one party was represented by counsel the other was not isn't that pretty much this record no your honor both parties were represented by counsel however in the beginning in the beginning and continuously and in the beginning this mr erekat also was represented by the same counsel who brought the ten million dollar tort claim against my client and as well as representing her in the divorce proceeding i would submit that both parties were in fairly well represented at least had equal strength you know i assume the other one was not represented because of the nature of the three but you represent they were both represented and i do not have a one minute suggest that this is not an agreement that was binding between the two of them but it's impact has now deprived all other creditors of the estate because my client has paid less into this case and it's five years that sixty eight thousand pales in comparison to the ninety thousand you've ever you make the argument but that's not a primary concern that in those unique situations where the parties are negotiating to conclude two claims structuring it so as to maximize resources is these parties did and to make certain that in the event of a bankruptcy that those resources will never reach the other creditors is manifestly infest to the third party creditors and yet it is something that is a commonplace occurrence in the family law field because if you're going to sell it would be the what would be the rationale of  rational is to look at the calhoun decision which says that the court in the case of a chapter thirteen must look to the current function of that agreement whether it's still meeting a support need which i submit it has not been the case woman has long been remarr it be limited to those cases where there has been more or less a global settlement melding together multiple diverse claims that the burden which of course remain on the objecting party my client to show a lack of continuing need and finally i think that the the bankruptcy court would be well within its powers to remand to the state court as appropriate when appropriate the determination of whether or not there exists a neat so that it's not needlessly dragged into the messick relations field which traditionally is hands off with the federal judiciary so i think there is a rule that could be formulated it would not necessarily have have the effect of causing these courts to have to revisit again and again and again these support issues only when these unique facts created and only when it has not been litigated before the family court i realize my time is up next eat it but thank you very much we took you there we appreciate the argument mr ashworth first bite was in tennessee he requested that the court produces alimony based on the present needs the courts and i that petition instructed him not to return eighteen days later mr ashworth met with his current counsel and later filed bankruptcy he then went to the trial court and had a second by the apple claiming that the intent of the parties was to create a property settlement related solely to the civil suit that action was  seven agreement is dispositive thus the events and circumstances that may have occurred or is and subsequent to the execution of the settlement that might have altered the parties have no bearing and that is why i refer to this as the third by the apple he did not make this all or nothing case he believed that the alimony was entirely a property settlement and he did not prevail the backup at some point will extract the record of the one five eight claims that he's making a new brief i want to the math which shows that the appellant is actually attempting to accelerate his alimony which would otherwise be payable over a lengthy period of time into his five year plan in fact the acceleration is meant to reduce the payments to unsecured creditors not to maximize that payment with regard to the civil lawsuit pellet is having trouble figuring out his argument with regard to the value that lawsuit on one hand he said  argument was worth less than a loss it was worth first because everyone has herpes and really it was it was totally worthless maybe was worth the one dollar that he settled on and the rest really is alimony but then other times he argues that it was he was so scared he must  settle for that i can't give a story straight because he's going to say whatever he believes is required in order to reduce his alimony and with regard to the counsel that were represented i expect this record shows that the problem is of the other the pay and that's how you fix the amount of money to go from one to the other when we look at this case at this past year this case the need of one has lowered substantially the ability of the other to pay as little substantially now we may not get to that question that all because of the past of the case and when the agreement was made i assumed because yes your honor both of those points mr ashworth was represented by two attorneys in tennessee one was a civil attorney one was a family law attorney mr got had one attorney with regard to the ability to pay mr ashworth  income at the time he entered it is somewhat was approx one hundred fifty thousand dollars a year and when he filed bankruptcy he earned two hundred sixty two thousand dollars per year his ability to pay seemingly increased and there is no