IN THE UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: :

:

JAMIE MARIE PANZA, :

: Bankruptcy No. 05-40107-MBM

 Debtor. :

................................................................:...............................................................

Brent W. Panza, : Chapter 7

Plaintiff, :

:

v. : Adversary No. 06-2246-MBM

:

Jamie Marie Austin Panza, :

Defendant. :

MEMORANDUM OPINION

AND NOW, this 17th day of July, 2006, upon consideration of

(a) the Complaint Objecting to Discharge filed by Brent Panza (hereafter “the

Plaintiff”), wherein the Plaintiff primarily seeks to have a $9,476.23 claim

against Jamie Marie Panza, the instant debtor (hereafter “the Debtor”),

declared nondischargeable pursuant to 11 U.S.C. § 523(a)(5), but wherein

the Plaintiff, in a fairly inconspicuous and fleeting manner, and on the

ground of fraud alleged to have been committed by the Debtor, also (i)

objects to discharge pursuant to 11 U.S.C. § 727, and (ii) seeks to except

his $9,476.23 claim from discharge pursuant to 11 U.S.C. § 523(a)(2),

(b) the Debtor’s motion for summary judgment in the instant adversary

proceeding,

(c) the Debtor’s Brief in Support of Motion to Dismiss/Motion for Judgment on

the Pleadings, wherein the Debtor (i) sets forth the basis for the entry of

such summary judgment in her favor, and (ii) raises for the first time an

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 1 of 15
2

issue that was not even raised in the Plaintiff’s complaint, namely whether

the Plaintiff’s $9,476.23 claim should be excepted from discharge

pursuant to 11 U.S.C. § 523(a)(15), and

(d) the Plaintiff’s response to the aforesaid brief by the Debtor, which the

Court views as also a response to the Debtor’s summary judgment

motion;

and because the Court may dispense with a hearing on the summary

judgment motion given that both parties wish to dispense with such hearing, as is

reflected in Document No’s. 11 and 14, see Adv. No. 06-2246-MBM, Doc. No’s.

11 & 14,

it is hereby determined that the Court shall now issue an order

(a) that GRANTS the Debtor’s summary judgment motion, and

(b) to the effect that

(i) the Plaintiff’s $9,476.23 claim is thus NOT EXCEPTED FROM

DISCHARGE pursuant to either §§ 523(a)(2), 523(a)(5), or

523(a)(15), that is that such claim shall be discharged, and

(ii) the Plaintiff’s objection to discharge under § 727 is thus

OVERRULED.

The rationale for the Court’s decision is briefly set forth below.

I.

As an initial matter, the Court rejects §§ 523(a)(2) and 523(a)(15) at this

time as statutory grounds for excepting the Plaintiff’s $9,476.23 claim from

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 2 of 15
3

discharge.

With respect to § 523(a)(15) in particular, the Court so rules because, if for

no other reason, the Plaintiff has failed to pursue an argument under

§ 523(a)(15), either in the Plaintiff’s complaint or thereafter. Because the Plaintiff

thus far has failed to raise an argument under § 523(a)(15), and since the Court

now rules on the merits of the Plaintiff’s complaint, the Plaintiff has thereby

waived any opportunity that he might have had to raise such argument.

With respect to § 523(a)(2) in particular, the Court so rules because, even

if the Plaintiff is correct that the Debtor engaged in some type of fraud, none of

the fraud particularly alleged to have been committed by the Debtor enabled the

Debtor to obtain money, property, services, or an extension, renewal, or

refinancing of credit; since such alleged fraud did not so enable the Debtor, such

alleged fraud is not actionable, that is it will not support a nondischargeability

action, under § 523(a)(2), see 11 U.S.C.A. § 523(a)(2) (West 2004).

The Court also notes, in any event, that the Plaintiff is now time-barred –

and was time-barred as well on February 23, 2006, when he filed his complaint –

from seeking to have his claim declared nondischargeable pursuant to either

§ 523(a)(2) or § 523(a)(15). The Court so rules because (a) “[a] complaint to

determine the dischargeability of a debt under § 523(c) shall be filed no later than

60 days after the first date set for the meeting of creditors under § 341(a),”

Fed.R.Bankr.P. 4007(c), 11 U.S.C.A. (West 2005), (b) dischargeability

determinations pursuant to §§ 523(a)(2) and 523(a)(15) are of the type that fall

“under § 523(c),” see 11 U.S.C.A. § 523(c)(1) (West 2004), (c) December 16,

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 3 of 15
1

The Court is aware of its own order that was entered on January 27,

2006, that extended until February 27, 2006, the deadline to file “any objection to

discharge (if applicable), request for a 341 meeting (if applicable), and/or

objections to exemptions,” see Bankr. No. 05-40107-MBM, Document No. 11,

which court order was prompted by the Debtor’s amendment of her Bankruptcy

Schedule F on January 26, 2006. Unfortunately for the Plaintiff, a

nondischargeability determination – a battle that is waged solely under § 523 – is

a matter that is entirely distinct from an objection to, or an opposing of, a

discharge – a battle that is waged solely under § 727. Of course, a

nondischargeability determination is also distinct from either a request for a § 341

Meeting or an objection to exemptions. Consequently, the aforesaid February

14, 2006 deadline for filing a nondischargeability complaint under § 523(c) – and

thus under §§ 523(a)(2) and/or 523(a)(15) – was not extended to February 27,

2006. The Court is also aware of the fact that the Debtor failed, in her original

bankruptcy schedules, to list the Plaintiff as a creditor, and that the Plaintiff thus

perhaps did not receive notice of the Debtor’s bankruptcy petition filing until

January 26, 2006. However, and unfortunately for the Plaintiff, the Plaintiff was

necessarily served with notice of the Debtor’s bankruptcy petition filing sufficient

to meet the aforesaid February 14, 2006 deadline by virtue of the Debtor’s

service upon the Plaintiff of her aforesaid Bankruptcy Schedule F amendment on

January 26, 2006 (as an aside, such amendment served to add the Plaintiff as a

creditor to the Debtor’s bankruptcy schedules). Therefore, that the Plaintiff was

not initially listed as a creditor in the Debtor’s bankruptcy schedules does nothing

to aid the Plaintiff in avoiding the bar created by the passage of the aforesaid

February 14, 2006 deadline.

4

2005, was the first date set for the meeting of creditors under § 341(a) in the

instant bankruptcy case, which means that the 60-day deadline for seeking a

nondischargeability determination under either § 523(a)(2) or § 523(a)(15) in the

instant bankruptcy case passed on February 14, 2006, see Bankr. No. 05-40107-

MBM, Document No. 6 (filed & entered on 11/17/05),1

 and (d) the Plaintiff did not

file his complaint that commenced the instant adversary proceeding regarding

nondischargeability until February 23, 2006, that is nine (9) days subsequent to

the passing of the aforesaid deadline.

Because none of the facts upon which the foregoing analysis is based are,

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 4 of 15
5

or could be, disputed by the Plaintiff, the Court rejects, at the summary judgment

stage, §§ 523(a)(2) and 523(a)(15) as statutory grounds for excepting the

Plaintiff’s $9,476.23 claim from discharge.

II.

For the reasons set forth below, the Court may also reject, and at the

summary judgment stage, the Plaintiff’s contention that his $9,476.23 claim must

be excepted from discharge pursuant to § 523(a)(5).

 The genesis for the Plaintiff’s claim of $9,476.23 is Part VIII. of a Marital

Separation Agreement executed by the parties in November 2001 (hereafter “the

Separation Agreement”), which agreement was subsequently incorporated into

an August 13, 2003 Divorce Decree (hereafter “the Divorce Decree”). In such

Part VIII. the parties agreed, inter alia, that the Debtor would (a) assume sole

responsibility for two particular debts to GMAC and Chase that existed as of

November 2001, and that she would satisfy the same within five (5) years of the

date of the Separation Agreement, and (b) indemnify the Plaintiff should the

Plaintiff be called upon to answer for such debts. The Debtor entered the instant

bankruptcy case still owing a balance on the two aforesaid debts, as of the

bankruptcy petition filing date, equal to $9,476.23; of course, the Debtor seeks a

Chapter 7 discharge of such indebtedness to both GMAC and Chase, as well as

her indemnification obligation to the Plaintiff. The Plaintiff now contends that his

indemnification claim against the Debtor constitutes nondischargeable alimony,

maintenance, or support, notwithstanding that in Part II. of the Separation

Agreement, which part is labelled “Alimony,” the parties expressly waived any

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 5 of 15
6

right that they might have had against the other for “temporary, definite, or

indefinite alimony, support, or maintenance for the past, present or future.”

11 U.S.C. § 523(a)(5) provides, in pertinent part, that the general

discharge which an individual debtor obtains pursuant to 11 U.S.C. § 727(b) for

pre-petition debts

does not discharge ... [such] debtor from any debt ... to a spouse,

former spouse, or child of the debtor, for alimony to, maintenance

for, or support of such spouse or child, in connection with a

separation agreement, divorce decree or other order ..., or property

settlement agreement, but not to the extent that ... (B) such debt

includes a liability designated as alimony, maintenance, or support,

unless such liability is actually in the nature of alimony,

maintenance, or support.

11 U.S.C.A. § 523(a)(5) (West 2004) (emphasis added). “[A]lthough the decree

or settlement establishing the [spousal] obligation almost invariably arises in the

context of a state court proceeding, whether the obligation is in the nature of

alimony, maintenance or support for the purposes of the Bankruptcy Code is a

question of federal, not state, law.” In re Gianakas (Gianakas v. Gianakas), 917

F.2d 759, 762 (3rd Cir. 1990).

When determining whether a spousal obligation established by a

settlement agreement “is actually in the nature of alimony, maintenance, or

support,” a “court must look beyond the label attached to ... [such] obligation by

... [such] settlement agreement to examine its true nature.” Id. Instead, the court

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 6 of 15
7

must focus upon “the intent of the parties at the time of the settlement

agreement.” Id. If “the controlling instrument is a court order instead of an

agreement between the parties, [the court] must ascertain the intention of the

court that issued that order.” In re Brown, 288 B.R. 707, 712 (Bankr.W.D.Pa.

2003).

Such “intent can best be found by examining three principal indicators,”

Gianakas, 917 F.2d at 762, namely (a) “the language and substance of the

agreement [or court order] in the context of surrounding circumstances,” Id., (b)

“the parties’ financial circumstances at the time of the [divorce or] settlement,” Id.

at 763 (pointing out that whether “one spouse had custody of minor children, ...

or was employed in a less remunerative position than the other spouse[,] are

aspects of the parties’ financial circumstances at the time the obligation was fixed

which shed light on the inquiry into the nature of the obligation as support”), and

(c) “the function served by the obligation at the time of the divorce or settlement,”

Id. at 763.

Applying the first of the foregoing factors to the instant matter, the Court is

constrained to hold that the language and substance of documents relevant to

such matter unequivocally evidence that the Plaintiff’s claim was not intended to

constitute one for, and thus must be considered to be one in the nature of

something other than, alimony, maintenance, or support. The Court so holds, in

large part, because of the aforesaid waiver in the Separation Agreement on both

parties’ part regarding alimony, maintenance, or support. The Court so holds, as

well, because it simply cannot accept as even conceivable the explanation by the

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 7 of 15
8

Plaintiff as to why such waiver is inapplicable with respect to the Plaintiff’s

indemnification claim. The Plaintiff now contends, in particular, that such waiver

is overcome by the following language in the Divorce Decree which postdates the

Separation Agreement:

Any existing spousal support order shall hereafter be deemed an

order for Alimony Pendente Lite if any economic claims remain

pending .... The Court hereby retains jurisdiction of any claims

raised by this action for which a final order has not yet been

entered.

As the Court understands it, the Plaintiff argues that, because the Debtor has

failed to completely satisfy the two debts to GMAC and Chase, the Plaintiff’s

contingent indemnification claim back against the Debtor vis-a-vis those two

debts (i.e., the Plaintiff’s $9,476.23 claim in the instant matter) remains pending,

which claim, pursuant to the aforesaid Divorce Decree language, is thus now

transformed into alimony pendente lite. Although the problems that the Court

experiences with respect to such argument by the Plaintiff are many, the Court

will mention just two, either one of which is sufficient for the Court to flatly reject

such argument. First, and most importantly, the aforesaid Divorce Decree

language plainly operated to make alimony pendente lite only those economic

claims, pending as of the date of the Divorce Decree, that arose as a result of a

spousal support order that existed as of the date of the Divorce Decree. 

Unfortunately for the Plaintiff, because no part of the Plaintiff’s present claim

arose as a result of a spousal support order (indeed, neither party has even

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 8 of 15
9

alleged the existence of a spousal support order in the parties’ divorce case),

such claim cannot now be transformed into alimony pendente lite. Second,

alimony pendente lite, which is to be distinguished from alimony, is only ordered

by a court “for the maintenance of a spouse during the pendency of a

matrimonial action brought by or against the spouse,” 24A Am.Jur.2d Divorce

and Separation § 652 (May 2006); see also Spink v. Spink, 619 A.2d 277, 279

(Pa.Super.Ct. 1992) (same), and such alimony “terminates at the time of divorce”

unless there is a related appeal, in which case such alimony continues but only

through the completion of such appeal, Spink, 619 A.2d at 279. Because

alimony pendente lite is so defined, the state court that issued the Divorce

Decree could not have intended for the Plaintiff’s aforesaid indemnification claim

– or, more appropriately, the Debtor’s indebtedness to GMAC and Chase – to

constitute alimony pendente lite given that (a) such debt of the Debtor to GMAC

and Chase, according to Part VIII. of the Separation Agreement, needed only to

have been paid off by the Debtor within five years of entering into such

agreement, (b) such indebtedness thus could have been paid off, in keeping with

such payment term, over years 3 through 5 subsequent to the execution of such

agreement, which period entirely postdates the completion of the parties’ divorce

case, and (c) such obligation of the Debtor, therefore, would potentially not,

indeed would likely not, have served to maintain the Plaintiff during the pendency

of the parties’ divorce case, which is entirely at odds with the purpose of alimony

pendente lite. In light of all of the foregoing, the Court cannot find that the

aforesaid Divorce Decree language is inconsistent with, and operates to

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 9 of 15
2

The Court observes that the Plaintiff, in his papers filed in the instant

adversary proceeding, also emphasizes the second of the two sentences quoted

above from the Divorce Decree (such emphasis coming in the form of quoting

such language and placing it in bold, capitalized type), to wit “The Court hereby

retains jurisdiction of any claims raised by this action for which a final order has

not yet been entered.” To the extent that the Plaintiff, by virtue of such

emphasis, means to argue that a final order has not yet been entered with

respect to either the Debtor’s obligation to answer for the debts to GMAC and

Chase, or the Debtor’s corresponding obligation to indemnify the Plaintiff if the

Debtor were to fail to so answer for such debts, such argument is rejected

outright. The Court so rules because the Divorce Decree, by expressly

incorporating the Separation Agreement that imposed such obligations on the

Debtor, itself constitutes such final order.

10

overcome, the parties’ waiver of alimony, maintenance, or support that is

contained in the Separation Agreement; instead, the Court must find that the

state court that issued the Divorce Decree inserted such language therein as a

matter of course, that is as a common practice, which language, as it turns out,

bore no relevance to the instant parties’ divorce case.2

As for the second of the Gianakas factors to be considered, that is the

parties’ financial circumstances at the time of their divorce and/or the execution

of the Settlement Agreement, the Plaintiff does not dispute the Debtor’s assertion

that, at such relevant time, the Plaintiff (a) was employed in a much more

remunerative position than was the Debtor, and (b) did not have custody of any

minor children while, at the same time, the Debtor had at least partial custody of

one minor child. In light of the foregoing circumstances, the Court is constrained

to rule that the parties never intended for either the Debtor’s obligation to answer

for the debts to GMAC and Chase, or the Debtor’s corresponding obligation to

indemnify the Plaintiff if the Debtor were to fail to so answer for such debts, to

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 10 of 15
3

The Plaintiff, in his papers filed in the instant matter, also argues that he

would not have agreed in the Separation Agreement to forego alimony,

maintenance, or support had the Debtor not agreed to undertake the obligations

at issue in the instant matter, and that, therefore, such obligations on the

Debtor’s part should now be viewed, for purposes of § 523(a)(5), as being in the

nature of alimony, maintenance, or support that was to be paid to the Plaintiff. 

The Plaintiff buttresses such argument by pointing to the language in Part II. of

the Separation Agreement to the effect that one of the reasons that the parties

agreed to waive their right to alimony, maintenance, or support was the

consideration that each was to receive in the form of the other terms of such

agreement that were included therein for their benefit. Unfortunately for the

Plaintiff, that he would not have agreed to waive alimony, etc. had the Debtor not

agreed to undertake the obligations at issue in the instant matter – even if taken

to be true by the Court at the present time – does not, by itself, establish either

that (a) he would have been successful in obtaining alimony, etc. at the state

court level had he pursued the same absent such stipulation by the Debtor, or (b)

such obligation on the Debtor’s part should now be viewed as being in the nature

of alimony, etc. In fact, given the parties relevant financial circumstances as set

forth in the text that precedes the instant footnote, the Court (a) suspects that the

Plaintiff would not have been successful in obtaining alimony, etc. in the state

court had he pursued the same in the absence of the Separation Agreement, and

(b) would rule, in any event, that such obligation on the Debtor’s part would not

be in the nature of alimony, etc. for purposes of § 523(a)(5).

11

constitute alimony, maintenance, or support.3

Finally, with respect to the third of the Gianakas factors, that the

Separation Agreement did not obligate the Debtor, with respect to the

indebtedness to GMAC and Chase, to satisfy the same incrementally over the

five-year period subsequent to the execution of such agreement, and instead

obligated the Debtor vis-a-vis such indebtedness to merely satisfy the same at

some point prior to the passage of such five years (and, thus, conceivably by way

of a lump sum payment at the end of such five years), indicates that the parties

intended for such undertaking by the Debtor to function neither as a means to

maintain the Plaintiff’s daily necessities nor, consequently, as alimony,

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 11 of 15
12

maintenance, or support.

Because none of the three Gianakas factors, when applied to the instant

matter, favors a determination either that (a) the parties intended for the Plaintiff’s

$9,476.23 claim to constitute alimony, maintenance, or support, or (b) such

claim, consequently, is actually in the nature of alimony, maintenance, or

support, and since none of the facts upon which the foregoing analysis is based

are disputed by the Plaintiff, the Court must rule, at the summary judgment stage,

that such claim of the Plaintiff cannot be excepted from discharge pursuant to

§ 523(a)(5).

III.

As for the Plaintiff’s objection to discharge under § 727, the Court must

overrule the same, and at the summary judgment stage, because it is predicated

upon fraud alleged to have been committed by the Debtor, none of which can be

even remotely squeezed into any of the fraud-based discharge objection grounds

listed in § 727(a). In particular, the Plaintiff does not even allege:

(a) that the Debtor, with bad intent, transferred, removed, destroyed,

mutilated, concealed, or permitted any of the foregoing actions with

respect to, property of the Debtor or the Debtor’s bankruptcy estate, either

within one year of the Debtor’ bankruptcy petition filing date or after such

date, § 727(a)(2);

(b) that the Debtor concealed, destroyed, mutilated, falsified, or failed to keep

or preserve records from which the Debtor’s financial condition or

business transactions might be ascertained, § 727(a)(3);

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 12 of 15
4

The Plaintiff, in his complaint and subsequent pleadings, also requests

forms of relief other than those directly addressed in the instant Memorandum

Opinion. Such relief request is summarily denied given that the Debtor prevails

on her summary judgment motion in its entirety.

13

(c) that the Debtor knowingly and fraudulently – and in or in connection with

her bankruptcy case – committed any of the acts set forth in any of the

four paragraphs contained in § 727(a)(4); or

(d) that the Debtor has failed to satisfactorily explain any loss of assets or

deficiency of assets to meet the Debtor’s liabilities, § 727(a)(5).

IV.

In light of all of the foregoing, the Court determines that it shall issue the

order set forth at the beginning of the instant Memorandum Opinion.4

BY THE COURT

 /s/ 

M. BRUCE McCULLOUGH,

U.S. Bankruptcy Judge

DATED: July 17, 2006

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 13 of 15
IN THE UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: :

:

JAMIE MARIE PANZA, :

: Bankruptcy No. 05-40107-MBM

 Debtor. :

................................................................:...............................................................

Brent W. Panza, : Chapter 7

Plaintiff, :

:

v. : Adversary No. 06-2246-MBM

:

Jamie Marie Austin Panza, :

Defendant. :

ORDER OF COURT

AND NOW, this 17th day of July, 2006, for the reasons set forth in the

accompanying Memorandum Opinion of the same date, it is hereby ORDERED,

ADJUDGED, AND DECREED that

(a) the Debtor’s summary judgment motion is GRANTED,

(b) the Plaintiff’s $9,476.23 claim is thus NOT EXCEPTED FROM

DISCHARGE pursuant to either §§ 523(a)(2), 523(a)(5), or 523(a)(15),

that is such claim shall be discharged, and

(c) the Plaintiff’s objection to discharge under § 727 is thus OVERRULED.

BY THE COURT

 /s/ 

M. BRUCE McCULLOUGH,

U.S. Bankruptcy Judge

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 14 of 15
2

cm: Brent W. Panza

414 Clifton Avenue

Glenshaw, PA 15116

Jon A. Cwalina, Esq.

Jones & Cwalina, LLP

401 Wood Street, Third Floor

Pittsburgh, PA 15222

Case 06-02246-MBM Doc 15 Filed 07/17/06 Entered 07/17/06 15:20:51 Desc Main

Document Page 15 of 15