United States Bankruptcy Appellate Panel

For the Eighth Circuit

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No. 16-6037

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In re: Paul M. Wojciechowski; MaryE.Wojciechowski, also known as MaryAubertin

lllllllllllllllllllllDebtors

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Susan H. Mello; Susan H. Mello, LLC

lllllllllllllllllllllCreditors - Appellants

v.

Paul M. Wojciechowski; Mary E. Wojciechowski

lllllllllllllllllllllDebtors - Appellees

Diana Spuhl Daugherty

lllllllllllllllllllllTrustee - Appellee

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Appeal from United States Bankruptcy Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: May 2, 2017

 Filed: June 15, 2017

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Before KRESSEL, NAIL, and SHODEEN, Bankruptcy Judges.

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NAIL, Bankruptcy Judge.

Susan H. Mello and Susan H. Mello, LLC (collectively, "Mello") appeal the

October 21, 2016 order of the bankruptcy court confirming Debtors Paul M. 1

Wojciechowski and Mary E. Wojciechowski's second amended plan. We affirm. 2

BACKGROUND

Debtors filed a petition for relief under chapter 13 of the bankruptcy code in

April 2016. Debtors listed Mello, who had represented Debtor Paul Wojciechowski

in his pre-petition divorce proceeding and was still owed attorney fees for her

services, on their schedule E/F.

Over the next several months, Mello filed numerous motions, objections, and

an adversary proceeding. Two ultimately led to this appeal: Mello's amended

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motion to dismiss Debtors' case and Mello's amended objection to Debtors' second

amended plan.4

The Honorable Kathy A. Surratt-States, Chief Judge, United States 1

Bankruptcy Court for the Eastern District of Missouri.

In her notice of appeal, Mello also purported to appeal several other orders. 

2

However, she did not meaningfully address these other orders in her opening brief. 

Consequently, we do not address them, either. See Reuter v. Cutcliff (In re Reuter),

686 F.3d 511, 515 n.3 (8th Cir. 2012).

These are cogently summarized in Debtors' brief and need not be repeated 3

here.

Two earlier iterations of Debtors' plan had not been confirmed. With certain

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exceptions, the proponent of a chapter 13 plan may modify his or her plan at any time

either before or after confirmation. 11 U.S.C. §§ 1323 (modification of plan before

confirmation) and 1329 (modification of plan after confirmation). In some

jurisdictions, such modified plans are referred to as amended plans.

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In her amended motion to dismiss, Mello alleged Debtors had filed their

petition in bad faith and listed a number of perceived errors and omissions in Debtors'

schedules and statements and in Debtors' testimony at their meeting of creditors. In

her amended objection to Debtors' second amended plan, Mello alleged Debtors'

second amended plan had not been proposed in good faith and again listed a number

of perceived errors and omissions in Debtors' schedules and statements and in

Debtors' testimony at their meeting of creditors. Mello also alleged Debtors had not

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applied their disposable income to payments under their second amended plan,

Debtors' second amended plan was not feasible, and Debtors had failed to pay a

domestic support obligation.

Both Mello's amended motion to dismiss and Debtors' second amended plan

came before the bankruptcy court in October 2016. After hearing the arguments of

counsel and considering the voluminous record, the bankruptcy court denied Mello's

amended motion to dismiss, overruled Mello's objections to confirmation, and

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confirmed Debtors' second amended plan. The bankruptcy court's oral rulings were

memorialized in an order confirming Debtors' second amended plan entered

October 21, 2016 and an order denying Mello's amended motion to dismiss entered

November 10, 2016.

On October 24, 2016, Mello filed a motion to amend, inter alia, the bankruptcy

court's order confirming Debtors' second amended plan. On November 10, 2016, the

bankruptcy court entered an order denying Mello's motion to amend. On

While differently formatted, Mello's amended motion to dismiss and her

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amended objection to Debtors' second amended plan appear to identify the same

perceived errors and omissions.

The trustee also objected to Debtors' second amended plan. The trustee's 6

objections were resolved on the record.

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November 23, 2016, Mello filed a notice of appeal. Mello's appeal is therefore

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timely. See Fed.R.Bankr.P. 8002(a) and (b).

STANDARD OF REVIEW

Mello contends the bankruptcy court erred in confirming Debtors' second

amended plan. To the extent this implicates the bankruptcy court's findings of fact,

we review those findings for clear error. Islamov v. Ungar (In re Ungar), 633 F.3d

675, 679 (8th Cir. 2011). To the extent it implicates the bankruptcy court's

conclusions of law, we review those conclusions de novo. Ungar, 633 F.3d at 679.

Mello also contends the bankruptcy court erred in denying her request for an

evidentiary hearing on the confirmation of Debtors' second amended plan. We review

the bankruptcy court's decision not to conduct an evidentiary hearing for an abuse of

discretion. United States v. Lange (In re Netal, Inc.), 498 B.R. 225, 228 (B.A.P. 8th

Cir. 2013).

DISCUSSION

Mello's principal argument is the bankruptcy court erred in not conducting an

evidentiary hearing on Debtors' second amended plan. We disagree.

In her notice of appeal, Mello did not elect to have her appeal heard by the

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district court. See Fed.R.Bankr.P. 8005(a). Mello then filed an "amended/corrected"

notice of appeal in which she attempted to elect to have her appeal heard by the

district court. By order dated December 1, 2016, we deemed Mello's

"amended/corrected" notice of appeal to be untimely and therefore ineffective to

deprive us of jurisdiction. Mello also filed a "Motion for Appeal to go to District

Court not to BAP" and a "Supplemental Motion for Appeal to go to District Court not

to BAP." By order dated December 6, 2016, we denied Mello's supplemental motion.

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While the parties appear to assume Mello requested such an evidentiary

hearing, the record is not entirely clear on this point. During the hearing on Mello's

amended motion to dismiss, Mello stated unambiguously, "I would like to have an

evidentiary hearing . . . ." During the hearing on Mello's amended objection to

Debtors' second amended plan, however, Mello asked only "to be heard on [her

objections]" and to "have a chance to keep the record open." Neither was a clear

expression of a desire for an evidentiary hearing.

In any event, "[n]othing in the statutes or case law requires a hearing every time

the issue of good faith is raised in a Chapter 13 proceeding. The bankruptcy court,

exercising its sound discretion, is in the best position to determine when an

evidentiary hearing on the issue of good faith is necessary." Noreen v. Slattengren,

974 F.2d 75, 76 (8th Cir. 1992).

As previously noted, in both her amended motion to dismiss and her amended

objection to Debtors' second amended plan, Mello identified a number of perceived

errors and omissions in Debtors' schedules and statements and in Debtors' testimony

at their meeting of creditors. In denying Mello's amended motion to dismiss, the

bankruptcy court heard Mello's argument and considered both the voluminous record

and the perceived errors and omissions. The bankruptcy court then explained why

it did not believe the perceived errors and omissions demonstrated a lack of good

faith on Debtors' part, referencing changes in Debtors' circumstances over time, the

oft seen necessity for chapter 13 debtors to amend their schedules and statements, and

the trustee's role in reviewing chapter 13 debtors' schedules and statements.

Mello did not identify–and indeed has yet to identify–what additional evidence

she would offer at an evidentiary hearing. See Yehud-Monosson USA, Inc. v. Fokkena

(In re Yehud-Monosson USA, Inc.), 458 B.R. 750, 756 (B.A.P. 8th Cir. 2011). Under

the circumstances, even assuming Mello's requests "to be heard" and "to keep the

record open" could reasonably be construed as a request for an evidentiary hearing

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on Debtors' second amended plan, we cannot say the bankruptcy court abused its

discretion in denying Mello's request.

Mello also argues the bankruptcy court erred in not considering her objections

to confirmation because the trustee did not join in Mello's objections. Again, we

disagree.

Mello points to three statements made by the bankruptcy court, the first two in

connection with Mello's amended motion to dismiss and the third in connection with

Mello's objections to confirmation: (1) "I'mlooking to the trustee to see, based on the

trustee'sreview of these schedules and statements, I haven'tseen anything filed by the

trustee"; (2) "[I]t's hard for me to believe that [the trustee's] office has missed this

many things"; and (3) "[I]f the trustee hasn't raised that issue, then certainly I would

overrule that objection."

None of these statements support Mello's argument. A chapter 13 trustee is

statutorily obligated to "investigate the financial affairs of the debtor" and "appear

and be heard at any hearing that concerns . . . confirmation of a plan[.]" 11 U.S.C.

§§ 704(a)(4) (incorporated by reference in 11 U.S.C. § 1302(b)(1)) and 1302(b)(2). 

The bankruptcy court's first statement is a confirmation that the trustee had taken no

formal action regarding Debtors' schedules and statements. The bankruptcy court's

second statement is a recognition of how well the trustee ordinarily carried out the

trustee's duties. Neither can reasonably be construed to suggest the bankruptcy court

did not consider Mello's objections to Debtors' second amended plan.

The bankruptcy court's third statement followed a discussion regarding an

alleged domestic support obligation. Without providing any specifics, Mello 8

One of the requirements for confirmation of a chapter 13 plan is "the debtor 8

has paid all amounts that are required to be paid under a domestic support obligation

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objected to confirmation because Debtors' second amended plan did "not seem to

meet the requirement to see all DSOs are paid." (Emphasis added.) The bankruptcy

court's statement was clearly made in reference to this particular objection, not

Mello's other objections. The trustee, who–it bears repeating–was statutorily

obligated to investigate Debtors' financial affairs, did not object to Debtors' second

amended plan on this basis, and Mello did not identify–and indeed has yet to

identify–any amounts that Debtors were required to pay post-petition and that they

had not paid prior to the confirmation hearing. In light of the foregoing, we construe

the bankruptcy court's statement to be the result of the bankruptcy court's weighing

Mello's vague and unsupported objection against the fact that the trustee did not

object to Debtors' second amended plan on this basis, not support for Mello's

argument that the bankruptcy court did not consider Mello's objections to

confirmation. See Fonder v. United States, 974 F.2d 996, 999-1000 (8th Cir. 1992)

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("Oral findings and conclusions under [Fed.R.Civ.P.] 52(a) [made applicable to

confirmation hearings by Fed.Rs.Bankr.P. 3015(f), 7052, and 9014(c)] 'must be

liberally construed and found to be in consonance with the judgment if the judgment

has support in the record evidence.'").

Finally, Mello argues the bankruptcy court erred in overruling her objections

and confirming Debtors' second amended plan. Again, we disagree.

As previously noted, Mello objected to Debtors' second amended plan on

several grounds: She alleged Debtors' second amended plan was not proposed in

and that first become payable after the date of the filing of the petition if the debtor

is required by a judicial or administrative order, or by statute, to pay such domestic

support obligation[.]" 11 U.S.C. § 1325(a)(8).

The bankruptcy court questioned–without deciding–whether Mello had

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standing to raise this particular objection. Because neither Debtors nor the trustee

raised this issue on appeal, we do not address it.

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good faith; she alleged Debtors had not applied their disposable income to payments

under their second amended plan; she alleged Debtors' second amended plan was not

feasible; and she alleged Debtors had failed to pay a domestic support obligation. 

However, in her opening brief, Mello addressed only the first and the last of these

grounds. Consequently, she has waived any issue regarding Debtors' commitment of

their disposable income and any issue regarding the feasibility of Debtors' second

amended plan. See Reuter v. Cutcliff (In re Reuter), 686 F.3d 511, 515 n.3 (8th Cir.

2012).

With respect to her objection that Debtors' second amended plan was not

proposed in good faith, Mello contends the perceived errors and omissions she

identified in both her amended motion to dismiss and her amended objection to

Debtors' second amended plan demonstrate a lack of good faith on Debtors' part. 

Though this is one permissible view of the record, the bankruptcy court determined

otherwise, for the reasons stated above. This is also a permissible view of the record. 

That being so, we cannot say the bankruptcy court's decision to overrule this

objection was clearly erroneous. Anderson v. City of Bessemer City, North Carolina,

470 U.S. 564, 574 (1985) ("Where there are two permissible views of the evidence,

the factfinder’s choice between them cannot be clearly erroneous.”).

With respect to her objection that Debtors had allegedly failed to pay a

domestic support obligation, as previously noted, Mello did not identify any amounts

that Debtors were required to pay post-petition and that they had not paid prior to the

confirmation hearing. Mello's objection was, therefore, hypothetical at best. 

Moreover, the bankruptcy court properly noted the absence of Debtor Paul

Wojciechowski's ex-spouse, who was in the best position to know if Debtors had

made all required post-petition domestic support obligation payments and would have

had every reason to object to Debtors' second amended plan if Debtors had not made

those payments. For these reasons, we cannot say the bankruptcy court's decision to

overrule this objection was clearly erroneous, either.

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CONCLUSION

The bankruptcy court did not abuse its discretion in denying Mello's request

for an evidentiary hearing on Debtors' second amended plan, and its decision to

overrule Mello's objections and confirm Debtors' second amended plan was not

clearly erroneous. Thus, we affirm the bankruptcy court's October 21, 2016 order

confirming Debtors' second amended plan.

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