UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: CECIL CARL VARNEY,

Debtor.

CECIL CARL VARNEY,

No. 94-2045

Plaintiff-Appellant,

v.

ANGELA LEA VARNEY,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of West Virginia, at Huntington.

Charles H. Haden II, Chief District Judge.

(CA-93-513-3, BK-92-30056)

Submitted: February 20, 1996

Decided: March 28, 1996

Before NIEMEYER and WILLIAMS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Cecil Carl Varney, Appellant Pro Se. Jane Moran, Williamson, West

Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Cecil Carl Varney appeals from the district court's order affirming

the bankruptcy court's orders denying a jury trial and granting partial

default judgment for Angela Lea Varney in her adversary proceeding

and from the district court's order denying reconsideration. The

adversary proceeding sought a determination by the bankruptcy court

that a debt owed Angela from Cecil was not dischargeable in his

bankruptcy case. We affirm the district court's orders.

During the January 1990 state court divorce hearing between Cecil

and Angela Varney, Cecil agreed to pay "temporary alimony" of

$1000 per month and to continue to pay on "all of the debts of the

marriage," including mortgage payments, health insurance, and groceries. Cecil also agreed to pay up to $400 per month on Angela's

personal credit cards. The order incorporating this agreement provided for these payments during the pendency of the divorce proceeding. Cecil made the agreed payments from February 1990 through

October 1990. Thereafter, he refused to make any payments to Angela

either for the agreed alimony or for the marital debts and credit card

expenses.

The final divorce decree between Cecil and Angela, entered January 1992, awarded Cecil permanent custody of their child and provided that Angela needed no alimony or maintenance. The decree

noted Cecil's failure to comply with his contractual agreement to pay

Angela $1000 per month for temporary alimony and $400 per month

for credit card debt. Angela was awarded a judgment of $11,000 for

the alimony in arrears, and $5200 for payments of the marital debts,

plus interest.

Cecil Varney filed a voluntary petition for Chapter 7 bankruptcy

relief in January 1992. Angela filed a proof of claim in Cecil's bank-

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ruptcy, seeking payment of the judgment entered in the divorce case.

She also filed an adversary proceeding to determine the dischargeability of her claim in Cecil's bankruptcy case.

The bankruptcy court denied Cecil's request for a jury trial and

scheduled trial of the adversary proceeding for 2:30 p.m. on November 3, 1992. Trial was thrice rescheduled, first for 1:30 p.m. on January 4, 1993, then for 1:30 p.m. on February 1, 1993, and finally for

March 1, 1993, at 10:00 a.m.

On March 1, 1993, Angela and her counsel appeared for the trial

as scheduled. The bankruptcy judge was not present at that time

because of pressing matters in Charleston, and his law clerk attended

the hearing to advise the parties of the delay. When Cecil failed to

appear by 10:30 a.m., the law clerk contacted the judge, who, at

approximately 10:47 a.m., advised the clerk to instruct Angela's

counsel to prepare an order granting default judgment for Angela due

to Cecil's failure to appear for the scheduled trial.

The following day, Cecil filed a motion in opposition to default

judgment or, alternatively, a motion for relief from the judgment. He

explained that he had mistakenly noted the time for the March 1st

hearing as 1:30 p.m., the time the trial was twice previously scheduled. Cecil had also caused a subpoena to issue for his witness to

appear at 1:30 on that date. In an affidavit in support of his motion,

Cecil stated that on March 1, 1993, he arrived at the courthouse

between 10:15 and 10:30 a.m. He remained in the law library until

approximately 1:15 p.m., when he proceeded to the courtroom for the

trial which he believed was scheduled for 1:30. It was then that Cecil

discovered that the hearing was scheduled for 10:00 a.m.

At the hearing on Cecil's opposition to the default judgment or for

relief from judgment, the bankruptcy court noted that Cecil admitted

receiving the notice scheduling the hearing for 10:00 a.m. and that he

failed to present any evidence, other than his own testimony, to prove

that he was in the law library at the time of the hearing. The court also

noted that Angela and her counsel were present and ready to proceed

at the time of the trial. The court found that Cecil failed to show

excusable neglect for his failure to appear for the scheduled trial.

Based on factual findings in two state court proceedings that the debt

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to Angela was alimony and support, the bankruptcy court granted

default judgment for Angela on those claims and denied default judgment on Angela's claims which were in the nature of a property settlement.

The district court affirmed the action of the bankruptcy court and

denied Cecil's motion for a rehearing. Cecil appealed to this court

arguing that the agreed payments were not alimony or support and

that he was entitled to a jury trial on the issue. Angela Varney's counsel moved to withdraw as counsel and informed the court that Angela

wished to proceed with the appeal pro se. Angela also moved to submit the case on the briefs. We grant these motions.

The consensus in the courts which have addressed this issue is that

there is no constitutional right to a jury trial on the issue of dischargeability. Billing v. Ravin, Greenberg & Zackin, P.A., 22 F.3d. 1242

(3d Cir.), cert. denied, ___ U.S. #6D 6D6D#, 63 U.S.L.W. 3381 (U.S. Nov.

14, 1994) (No. 94-315); In re Maurice, 21 F.3d 767, 773 (7th Cir.

1994) (11 U.S.C.A. §§ 523(a)(2)(A) & (a)(6) (West 1993)); In re

McLaren, 3 F.3d 958, 960 (6th Cir. 1993); In re Hallahan, 936 F.2d

1496, 1505-06 (7th Cir. 1991) (11 U.S.C. § 523(a)(6) (1988)); In re

Hooper, 112 B.R. 1009, 1012 (Bankr. 9th Cir. 1990).

We agree with these decisions that a proceeding by a creditor to

determine dischargeability is equitable in nature and that a debtor who

filed a voluntary bankruptcy petition has no right to a jury trial in

such a proceeding. See Hallahan, 936 F.2d at 1505-06. We therefore

affirm the district court order affirming the bankruptcy court's denial

of Cecil Varney's request for a jury trial on the issue of dischargeability of his debt to Angela.

We review default judgments and denials of relief from default

judgments for abuse of discretion. Augusta Fiberglass Coatings, Inc.

v. Fodor Contracting Corp., 843 F.2d 808, 810 (4th Cir. 1988);

United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982). To obtain

relief under Fed. R. Civ. P. 60(b), the moving party must show that

his motion is timely, that he has a meritorious defense to the action,

and that the opposing party will not be unfairly prejudiced by having

the judgment set aside. The movant must also show that he satisfies

one of the grounds for relief set forth in Rule 60(b). McLawhorn v.

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John W. Daniel & Co., 924 F.2d 535, 538 (4th Cir. 1991); Compton

v. Alton S.S. Co., 608 F.2d 96, 102 (4th Cir. 1979).

Cecil's motion for relief from the default judgment was certainly

timely. Rule 60(b) provides that the motion be filed within a reasonable time and, for relief based upon mistake, inadvertence, or excusable neglect, the motion must be made within one year. Fed. R. Civ.

P. 60(b). Cecil filed his motion the day after the bankruptcy court

directed Angela to prepare an order granting her default judgment.

Prejudice to the non-moving party is a closer question. The bankruptcy court found that Angela would be prejudiced by setting aside

the order of default because she and her attorney had traveled to

attend the hearing at which Cecil did not appear. This inconvenienced

her and the court. While it is not clear that this constitutes prejudice,

see Augusta Fiberglass, 843 F.2d at 812 ("[W]e perceive no disadvantage . . . beyond that suffered by any party which loses a quick

victory."), in light of our consideration of the other factors governing

relief under Rule 60(b), we need not resolve this issue.

Cecil's basis for his request for relief from judgment is that he mistakenly believed that the 10:00 a.m. hearing had been scheduled for

1:30 p.m. One of the deciding factors in determining whether to grant

relief from a default judgment is the degree to which the moving party

is at fault. Cecil admitted that he personally received and read the

notice rescheduling the hearing for 10:00 a.m. on March 1st and that

he informed his secretaries of the change in the date but not the time.

Because Cecil was responsible for the default, he"must adequately

defend [his] conduct in order to show excusable neglect." Augusta

Fiberglass, 843 F.2d at 811. The bankruptcy court discredited Cecil's

excuse for his failure to appear and determined that his mistaken

belief that the hearing was scheduled for 1:30 p.m. did not constitute

excusable neglect. We cannot conclude that the bankruptcy court's

credibility determination was clearly erroneous or that the bankruptcy

court abused its discretion in finding no excusable neglect. See United

States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993); Park Corp. v. Lexington Ins. Co., 812 F.2d 894, 897 (4th Cir. 1987).

The key factor in this case in determining whether the district court

erred in affirming the bankruptcy court's denial of relief from the

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default judgment is whether Cecil has met his burden of showing that

he had a meritorious defense to Angela's claim that the debt to her

was nondischargeable. Section 523(a)(5) of the Bankruptcy Code

excepts from discharge any debt " . . . to a spouse, former spouse, or

child of the debtor, for alimony to, maintenance for, or support of

such child, in connection with a separation agreement, divorce decree

or other Order of a Court of record or property settlement agreement."

11 U.S.C.A. § 523(a)(5) (West 1993). The debt at issue arose from

Cecil's agreement to pay Angela $1000 per month as alimony and

$400 per month for credit card debts. This agreement was incorporated into an order labeling the payments as alimony and support. The

final divorce decree noted Cecil's failure to comply with his contractual agreement to pay Angela $1000 per month for temporary alimony

and $400 per month for credit card debt. The temporary nature of the

payments and the reference in the divorce decree to a contractual

agreement do not negate the parties' intent that the payments be alimony and support payments. Further, we find no clear error in the district court's affirmance of the bankruptcy court's findings that the

debt was for alimony and support. See Carolin Corp. v. Miller, 886

F.2d 693, 702 (4th Cir. 1989).

In conclusion, we grant Angela Varney's counsel's motion to withdraw, grant Angela's motion to submit on briefs and affirm the district court's order affirming the bankruptcy court's order granting

partial default judgment to Angela Varney in her adversary proceeding objecting to the dischargeability of Cecil's debt to her as incorporated into the family law master's temporary order. Finding no abuse

of discretion, we also affirm the district court's order denying reconsideration. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED

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