## United States Bankruptcy Appellate Panel FOR THE EIGHTH CIRCUIT

No. 97-6100EM

In re: * * Russell Charles Forbes, * * Debtor. * * * Appeal from the United States Grace M. Forbes, * Bankruptcy Court for the * Eastern District of Missouri Appellant, * * v. *

* Russell Charles Forbes, * * Appellee. *

Submitted: January 13, 1998 Filed: February 19, 1998

Before KRESSEL, William A. HILL, and DREHER, Bankruptcy Judges.
KRESSEL, Bankruptcy Judge.The Honorable Barry S. Schermer, United States Bankruptcy Judge for the Eastern 1 District of Missouri. A more detailed history of the bankruptcy case can be found in our earlier opinion in 2 Forbes v. Forbes , 215 B.R. 183 (B.A.P. 8th Cir. 1997) (Forbes I). The parties’ divorce decree awarded Grace $65,000.00 secured by a lien on two parcels 3 of real estate owned by Russell. We affirmed the bankruptcy court’s approval of the sale in Forbes I. 4 We also affirmed the bankruptcy court’s approval of the modified plan in Forbes I. 5
2 Grace Forbes appeals from an order of the bankruptcy court entering a discharge of 1 her former h usband, Russell Charles Forbes, and an order denying her Motion to Vacat e Order Discharging Debtor and Motion to Reopen Case. We affirm.

BACKGROUND

This appeal involves the latest in the acrimonious litigation between Grace an d Ru ssell Forbes following their divorce. The issue presently before the court concerns a n 2 unresolved two-year-old motion to dismiss.
In May of 1995, Grace made a motion to di smiss Russell’s Chapter 13 case or, in the alternative, to declare her marital property claim non-dischargeable. The bankruptcy court 3 held a hearing on the motions on June 15, 1995. At the hearing, the court directed Russell to list th e property for sale and to make a motion for approval of the sale once a buyer was located. The court indicated that it would entertain t he dismissal motion in conjunction with the motion to convey real estate. Both parties ag reed to the indefinite continuance. A buyer
was subse quently obtained, a hearing was held to approve the sale and the sale wa s approv ed. However, the parties neglected to reset the motion to dismiss on the court’ s

4 calendar. The bankruptc y court subsequently approved Russell’s modification of his plan. 5

When the trustee reported to the court that Russell had completed all payment s contemplated by the modified plan, the bankruptcy court entered an order discharging theAlthough the motion did not articulate a basis for vacating the discharge order, a 6 subsequent memorandum obliquely referred to Fed. R. Bankr. P. 9023 and 9024, which incorporate Fed. R. Civ. P. 59 and 60 into bankruptcy cases. The court’s order also denied Grace’s post-discharge “Motion for Leave to File a Claim 7 After the Bar Date.” Grace does not challenge this portion of the order on appeal. While the statute contains one exception to the prompt entry of discharge, there is no 8 exception in situations where a motion to dismiss is pending.
3 debtor on Ju ly 30, 1997. Grace subsequently moved to vacate the discharge order and t o reopen the case. On September 25, 1997, the court denied the motion. 6 7

DISCUSSION
On appeal , Grace argues that the bankruptcy court’s failure to rule on her motion to dismiss violated her constitutiona l rights and entitles her to relief from judgment under Fed. R. Civ. P. 59 and 6 0. We review the bankruptcy court’s findings of fact for clear error and it s conclusions of law de novo . Fed. R. Bankr. P. 8013; First Nat’l Bank of Olathe v

. Pontow , 111 F.3d 604, 609 (8th Cir. 1997); Chamberlain v. K ula (In re Kula) , 213 B.R. 729, 735 (B.A.P. 8th Cir. 1997). The cle ar error test is met when the reviewing court is left with the “defin ite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City , 470 U.S. 564, 573 (1985) ( quoting United States v. United States Gypsum Co. , 333 U.S. 364, 395 (1948)).

Mootness We note at the outset that Grace’s motion to dismiss was rendered moot by th e disc harge entered on July 30, 1997. 11 U.S.C. § 1328(a) specifically compels the entry of a discharge once the debtor has made all payments under the plan: As soon as practicable after completion by the debtor of all payments unde r the plan, unless the court approves a written waiver of discharge executed by the debtor after the order for reli ef under this chapter, the court shall grant the debtor a discharge. . . . 11 U.S.C. § 1328(a). 8We concentrate on that portion of the undecided motion which seeks dismissal of the 9 debtor’s case. Any request to determine the dischargeability of Grace’s debt should be brought by complaint if brought in the bankruptcy court and, as far as we are able to determine, is neither time-barred nor mooted by the entry of Russell’s discharge.
4 While it is troubling that the bankruptcy court never ruled on Grace’s motion t o di smiss, the record does not reveal any effort on Grace’s part to seek a hearing or call th e pending motion to the court’s attention, or to otherwise obtain a decision on the motion to dismiss. Grace knew that Russell’s modified plan provided for him to make a payment of

9 $2 2,800.00 to complete his payment obligations. Once this was done, she knew or should have known that the discharge would be entered immediately. She neither sought no r obtained any sort of stay of the order approving Russell’s modified plan, nor any delay in the entry of Russell’s discharge. In other words, even though Grac e was entitled to be heard, her inaction resulted in her motion becoming moot.
Constitutional Arguments Grace co ntends that the bankruptcy court’s entry of the discharge order when he r motion to dismiss was still pending violated her rights to due process and equal protection under the Fif

th and Fourteenth Amendments of the United States Constitution. Even if the motion to dismiss was not moot, we note that Grace’s constitutional arguments were never
r a ised in the bankruptcy court when she made her motion to vacate the discharge order. It is axiomatic that an appellate court will not consider arguments on appeal that were never presented to the trial court. Si ngleton v. Wulff , 428 U.S. 106, 120 (1976) (“It is the general rule . . . that a federal appellate court does not consider an issue not passed upon below.”); Un ited States v. Long , 857 F.2d 436, 448 (8th Cir. 1988) (“It is both inappropriate an d unwise for an appellate c ourt to consider on appeal issues that the trial court has not had an opp ortunity to consider and with respect to which a record has not been developed.”)

. Therefore, we do not consider her constitutional arguments on appeal.
Entitlement to Discharge Grace also makes the somewhat metaphysical argument that, since her motion t o dismi ss was still pending, a plan did not really exist and therefore the debtor did not really5

complete payments under the plan and so was not entitled to a discharge. This argument , while ima ginative, does not comport with any provision of the Bankruptcy Code

. Notwithstanding a pending motion to dismiss, the debtor’s plan is still a plan an d confirmation of that plan still constitutes confirmation.

Federal Rules of Civil Procedure Grace also contends that she is entitled to rel ief from the discharge order under Rules 59 and 60 of the Federal Rules of Civil Procedure. We review the bankruptcy court’s denial of Gra ce’s Rule 59 and Rule 60 motions under an abuse of discretion standard. See Twi n City Constr. Co. v. Turtle Mountain Band of C hippewa Indians , 911 F.2d 137, 139 (8th Cir. 1990) (abuse of discretion standard applied to Rule 59(e) motion); Sanders v. Clemco Indus. , 862 F.2d 161, 169 (8th Cir. 1988) (abuse of discretion standard applied to Rule 60(b ) motion).

Rule 59 Grace invokes Fed. R. Civ. P. 59 as a basis for her motion to vacate. Rule 59 allows a party seeking relief to obtain either a new trial or an amended judgment. Whether Grace is seeki ng a new trial under Rule 59(a) or an amended judgment under Rule 59(e), the rule is inapposite in t his case. There never was a trial on the issue of discharge nor is it clea r what kind of ame nded judgment would be entered. We conclude that the bankruptcy court did not abuse its discretion in denying Grace relief under Fed. R. Civ. P. 59.
Rule 60(b)(1) Lastly, Grace seeks relief under Fed. R. Civ. P. 60(b). Under the rule, a court “may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for

. . . mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1)

. Grace contends that the bankruptcy court’s failure to rule on her pending motion to dismiss
cons titutes “mistake” under the rule. It is clear that judicial oversight can provide grounds for Rule 60(b )(1) relief. Spangle v. Ming Tah Elec. Co. , 866 F.2d 1002, 1003 (8th Cir

. 19 89) (“[W]e recognize that rule 60(b)(1) can be used to obtain relief from judgment s entered through judicial inadvertence.”); CRI, In c. v. Watson , 608 F.2d 1137, 1143 (8th Cir. 1979)6

(“In this circuit, relief may be granted under Rule 60(b)(1) for judicial error whe n inadvertence is shown.”).

Howev er, relief from judgment under Rule 60(b)(1) is an extraordinary remed y “whic h may be granted only upon an adequate showing of exceptional circumstances. ” United States v.Young , 806 F.2d 805, 806 (8th Cir. 1986). Rule 60(b)(1) relief will not be grante d merely upon a showing of mistake. The movant must establish a meritoriou s defense, lack of prejudice to the plaintiff and freedom from culpability. Hoover v. Valley West D M , 823 F.2d 227, 230 (8th Cir. 1987). We have already determined that th e Bankruptcy Code required entry of the discharge and that Grace bears some measure of the blame by failing to press her dis missal motion. Therefore, we conclude that the bankruptcy court did not abuse its discretion in refusing to vacate the discharge order.

CONCLUSION

Since we conclude that the entry of the court’s discharge was appropriate and that it did not abuse its discretion in refusing to vacate the order of discharge, we affirm.
A true copy.

Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR TH E EIGHTH CIRCUIT.