## United States Bankruptcy Appellate Panel

FOR THE EIGHTH CIRCUIT

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No. 09-6079

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In re: Walter S. Marble, * * Debtor. * * Patricia Wallace, * Appeal from the United States * Bankruptcy Court for the Eastern Plaintiff – Appellee, * District of Missouri * v. * * Walter S. Marble * * Defendant – Appellant. *

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Submitted: March 11, 2010 Filed: March 31, 2010 (Revised to correct date of filing)

______ Before KRESSEL, Chief Judge, MAHONE Y and VENTERS, Ba nkruptcy Judges.

______ KRESSEL, Chief Judge.

Walter S. Marble appeals from the bankruptcy court’s 1 order granting Patricia Wallace’s motion for judgment on the pleadings and denying his motion

1 The Honorable Kathy A. Surratt-States, United States Bankruptcy Judge for the Eastern District of Missouri.

1for summary judgment. The bankruptcy cour t determined that the debt owed by
Marble to Wallace under the hold harmless provision of their marital settlement agreement is not discha rgeable. We affirm.

BACKGROUND

Patricia Wallace a nd Walter Marble married in 1987. During their marriage, they signed an indemnity agreement with an insurance company, in connection
with a contract related to a business ow ned by Marble and a bus iness associate. Wallace was required to sign the agreemen t, although she was not involved in the
business. Wallace and Marble later entered into a mar ital settlement agreement, under which Marble agreed to pay and de fray the marital debts and liabilities and to indemnify Wallace and hold her harmle ss with respect to all marital debts, except for the mortgage on the marital resi dence. Wallace agreed to indemnify
Marble and hold Marble harmless with re spect to the mortgage on the marital residence. The MSA was incorporated into the judgment for dissolution of marriage entered on September 20, 2000.

On October 14, 2005, Marble f iled a voluntary chapter 7 petition. 2 He did not list Wallace, his former spouse, as a creditor on his schedules or give her
written notice of the case. Ma rble received his discharg e on February 2, 2006. On August 10, 2007, Wallace and Marble were sued in Cook County Illinois Circuit Court for breach of the indemnity agreem ent. Because Marble’s debt under the indemnity agreement had been discharg ed in his bankruptcy case, he was
dismissed from the suit. Wallace then f iled a cross-claim against Marble for indemnification under the hold harmless provision of their MSA.

2 The Bankruptcy Abuse Prevention a nd Consumer Protection Act of 2005, Pub.L. No. 109-8, 119 Stat. 23 (codifie d as amended in scattered sections of 11 U.S.C.), governs cases filed on or after October 17, 2005. Because this case was filed before the 2005 amendments, the prio r version of the statute applies and except where noted, all references are to the pre-BAPCPA statute in effect in 2004.

2On December 15, 2008, rather than litig ate the dischargeability of this debt in state court, 3 Wallace filed an application to reopen Marble’s bankruptcy case and on December 17, 2008, the bankruptcy court reopened the case for the purpose of determining the dischargeability of the debt.

On December 30, 2008, Wallace filed a complaint seeking a determination that Marble’s obligation to Wallace unde r the hold harmless provision of the MSA is a debt that was not discharged pursu ant to 11 U.S.C. §§ 523(a)(5) and (15). In response, Marble argued: 1) he did not need to list Wallace as a creditor in his bankruptcy petition because he did not ow e her alimony, maintenance or child support; 2) there would not be any forthcoming marita l debt; 3) Wallace was not required to sign the indemnity agreement, but did so of her own volition; 4) the hold harmless provision of the MSA did not constitute alimony, maintenance or child support and was not excepted from di scharge under § 523(a)(5) or (a)(15); 5) the indemnity agreement with the insura nce company and underlying contract are
not a marital debt and ar e not covered under the hold harmless provision; and 6) his bankruptcy case was improperly reopen ed because he was discharged and no statutory exception applied.

On February 13, 2009, Wallace f iled a motion for judgment on the pleadings. She argued that the hold harmless provision of the MSA is nondischargeable under 11 U.S.C. § 523(a)(5). Marble did not file any response to Wallace’s motion for judgment on the pleadi ngs. Instead, on February 18, 2009, he filed a summary judgment motion. Marb le argued that his bankruptcy case was

3 The state court had jurisdiction to determine the dischargeability of
this debt. Stabler v. Beyers (In re Stabler) , 418 B.R. 764, 770 (B.A.P. 8th Cir. 2009) (“Aside from determinations of dischargeability under 11 U.S.C. § 523(a)(2), (4), or (6), state courts have concurrent jurisdiction to determine the dischargeability of a debt.”) (citing 11 U.S.C. § 727(b); Everly v. 4745 Second Ave., Ltd. (In re Everly) , 346 B.R. 791, 796 (B.A.P. 8th Cir. 2006)).

3improperly reopened because he was discharged in a pre-BAPCPA no asset case and that all of his debts were discharged because they were not subject to any statutory exceptions. The bankruptcy c ourt ruled in favor of Wallace on her motion for judgment on the pleadings and denied Marble’s summary judgment
motion. Wallace v. Marble (In re Marble) , 419 B.R. 407 (Bankr. E.D. Mo. 2009).

STANDARD OF REVIEW

We review de novo the grant of judgment on the pleadings. Poehl v. Countrywide Home Loans, Inc. , 528 F.3d 1093, 1096 (8th Cir. 2008). Judgment on the pleadings is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id .; Faibisch v. Univ. of Minn. , 304 F.3d 797, 803 (8th Cir. 2002). “We view all facts pleaded by the nonmoving party as true and gr ant all reasonable inferences in favor of that party.”
Id . (citing Syverson v. FirePond, Inc. , 383 F.3d 745, 749 (8th Cir. 2004)). Although statutory exceptions to discharge are ordinarily construed narrowly, we liberally construe the excepti on under 11 U.S.C. § 523(a)(5). Holliday v. Kline (In re Kline) , 65 F.3d 749, 750-51 (8th Cir. 1995).

DISCUSSION

Prior to the 2005 amendments, 11 U.S .C. § 523(a)(5)(B) provided that a chapter 7 discharge does not discha rge an individual from any debt:

to a spouse, former spouse, or ch ild of the debtor, for alimony to, maintenance for, or support of su ch spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record ... but not to the extent that ... such debt includes a liability designated as alimony, maintenance, or support , unless such liability is actually in the nature of al imony, maintenance, or support.

The bankruptcy court found on the pleadings that Marble’s debt to Wallace under the MSA was 1) an obligation to a spouse, fo rmer spouse, or child of the debtor; 2)

4the obligation arose in or was made in connection with a sepa ration agreement; and 3) the obligation was in the nature of alimony, support or maintenance. See McKinnis v. McKinnis (In re McKinnis) , 287 B.R. 245, 250 (Bankr. E.D. Mo. 2002). The bankruptcy court looked only to the language of the MSA, which was attached to the complaint and also to the defendant’s answer and his summary judgment motion. 4 The validity of the MSA was not disputed.

On appeal, Marble challenges 5 only the determination that the obligation
arose in or was made in connection with a separation agreement. Marble’s primary argument is that his debt to Wallace occu rred before the divorce rather than in the course of the divorce, and therefore is dischargeable. Marble fundamentally misunderstands the nature of the debt that Wallace is seeking to except from discharge. Marble is correct that Wallace’ s original debt to the insurance company arose out of the indemnity agreement with the insurance company prior to the state
court’s dissolution order. However, Marble’s debt to Wallace arises from his obligation to hold her harm less under the indemnity agre ement in the judgment for

4 On a motion for judgment on the plead ings, it is proper for a court to consider a document where the documen t was attached to the complaint, necessarily embraced by the pleadings, a nd its contents were not disputed by the parties. See Surgical Synergies v. Genesee Assocs., Inc. , 432 F.3d 870, 873 n. 3 (8th Cir. 2005) (“The district court properly considered the stock purchase agreement along with the pleadings becaus e it was attached to the complaint and was ‘necessarily embraced by the pleadings.’”); Porous Media Corp. v. Pall Corp.

, 186 F.3d 1077, 1079 (8th Ci r. 1999) (finding that on a motion for judgment on the pleadings, the district court properly relied on a transcript of court proceedings from previous litigation involving the same parties).

5 Marble also argues that his debt to Wallace is not a “domestic support obligation” as defined by 11 U.S.C. § 101(14A), which was part of the BAPCPA amendments. This argument is irrelevant because the phrase “domestic support obligation” does not even occur in the pre-BAPCPA § 523(a). Section 101(14A) is inapplicable to Marble’s case because it wa s added to the Code after Marble filed his case and in any event, does not ch ange the meaning of the pre-BAPCPA § 523(a)(5).

5dissolution of marriage, creating a new debt . The debt was therefore clearly an obligation that arose in or was made in connection with a sepa ration agreement.
See Williams v. Williams (In re Williams) , 703 F.2d 1055, 1057 (8th Cir. 1983) ( “ [U]ndertakings by one spouse to pay the ot her’s debts [. . .] can be ‘support’ for bankruptcy purposes.”); Burton v. Burton (In re Burton)

, 242 B.R. 674, 678 (Bankr. W.D. Mo. 1999) (“ a ‘new’ debt is created between a debtor and his exspouse when, pursuant to a divorce decree, th e debtor is ordered to assume a credit card debt incurred jointly during the marriage and ordered to hold the ex-spouse harmless for that debt.”).

CONCLUSION

Because we find no error in the bankrup tcy court’s determination that the appellant’s debt is nondischargeable pursuant to 11 U.S.C. § 523(a)(5)(B), we
affirm.

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