NOT FOR PUBLICATION * UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE TENTH CIRCUIT

_________________________________ IN RE AUSTIN FOX JENNINGS, Debtor.

__________________________________ AUSTIN FOX JENNINGS, Appellant,

v. RANDY L. ROYAL, Chapter 7 Trustee, Appellee. BAP No. WY

- 17

- 002

Bankr. No. 10

- 21436 Ch apter 7

OPINION

_________________________________ Appeal from the United States Bankruptcy Court for the District of Wyoming

_________________________________ Submitted on the briefs. **

_________________________________ Before NUGENT , SOMERS , and MOSIER , Bankruptcy Judges.

_________________________________ NUGENT , Bankruptcy Judge.

* This unpublished opinion may be cited for its persuasive value, but is not precedential, except under the doctrines of law of the case, claim preclusion, and issue preclusion. 10th Cir. BAP L.R. 8026

- 6.

** After examining the briefs and appellate record, the Court has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. Bankr. P. 8019(b). The case is therefore submitted without oral argument. FILED U.S. Bankruptcy Appellate Panel of the Tenth Circuit November 21, 2017 Blaine F. Bates Clerk2 _________________________________ Section 522(b)(3)(B) of the Bankruptcy Code 1 exempts from property of the estate any property of the debtor that is held in a tenancy by the entirety, to the extent that property is exempt from process under nonbankruptcy law (the “TBE” or “entireties” exemption). 2 Under Wyoming common law, property that is held by a married couple in a tenancy by th e entirety can be claimed exempt by a debtor to the extent that the equity in the real property exceeds the amount of the couple’s joint debts. 3 T enancy by the entirety property is not exempt from execution for the joint obligations of the husband and wife. 4 So, the extent of the TBE exemption under Wyoming law depends on the amount of joint claims against the husband and wife. Austin Jennings filed an individual Chapter 7 bankruptcy on December 9, 2010. His wife Sheridan Jennings did not file. Before Jennings filed, the couple acquired a home in Casper, Wyoming. In Jennings ’s schedules , he listed several joint claims against the two of them, including the ir home mortgage and a sizeable Internal Revenue Service tax claim for prior years’ income taxes . H e claimed the Casper home as his exempt homestead under the Wyoming homestead statute. 5 He also claimed his entireties interest

1 All future references to “Code,” “Section,” and “§” are to the Bankruptcy Code, Title 11 of the United States Code, unless otherwise indicated.

2 11 U.S.C. § 522(b)(3)(B)

. 3 In re Wenande, 107 B.R. 770, 774 (Bankr. D. Wyo. 1989)

. 4 Id. (citing Peters v. Dona, 49 Wyo

. 306, 54 P. 2d 817 (1936) ).
5 W YO
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- 101 (West 2010).3 in it exempt under § 522(b)(3)(B). 6 The trustee objected to the entireties exemption. 7 A hearing on the exemption objection was continued at length because d uring the pendency of the bankruptcy case, Ms. Jennings sought relief from the Internal Revenue Service (the “IRS”) from joint liability on the tax claim under the “in jured [sic] spouse” 8 rule . T he matter languished until late 2013 when the IRS ruled against Ms. Jennings. She then appealed her joint tax liability to the U nited States Tax Court (the “Tax Court”) . The Tax
Court concluded that Ms. Jennings was indeed jointly liable for back taxes amounting to $114, 068.30 . In a ser ies of orders, the bankruptcy court held that Jennings could claim the entireties exemption “to the ext ent that the equity exceeds the total amount of the debts owed jointly by the debtor and his non

- filing spouse.” 9 The debtor appealed and we affirm.
Jur isdiction and Standard of Review This Court has jurisdiction to hear timely

- filed appeals from “final judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit. 10 On June 5, 2015,

6 Schedule C , in Appellant’s App. at 24.

7 Trustee’s Amended Objection to Debtor’s Claim of Exemption , in Appellant’s App. at 39

- 40.
8 Ms. Jennings claimed relief under the “ innocent spouse” rule. S ee infra note. 30.
9 Order Granting Motion to Alter or Amend Order on Trustee’s Amended Objection to Debtor’s Claim of Exemptions at 8, in Appellant’s App. at 96

- 103. See also Order on Trustee’s Amended Objection to Debtor’s Claim of Exemption , in Appellant’s App. at 78

- 82; and Order Approving Stipulation on Exemption Objections and Order Vacating Hearing , in Appellant’s App. at 119

- 20.
10 28 U.S.C. § 158(a)(1) , (b)(1), and (c)(1); Fed. R. Bankr. P. 8001.4 the bankruptcy court ruled that Jennings could take the e ntireties exemption, but that the amount of th e exemption could not be determined until the tax appeal concerning the extent of the couple’s joint taxes had been decided (the “June 2015 Order”). 11 Jennings appealed, and, at the urging of the Trustee, anothe r panel of this Court dismissed the appeal as interlocutory. 12 Jennings now contends that the June 2015 Order became final when the parties’ s tipulation resolving the exemption dispute was approved by the bankruptcy c ourt and entered on January 12, 2017 (the “2017 Order”)

. 13 We agree. Fed. R. Bank r . P. 8002 provides that an appeal from a bankruptcy court’s final order must be taken not later than fourteen days after that order’s entry. Jennings filed his notice of appeal on January 20, 2017

. After the Ta x Court ruled that Ms. Jennings was joint ly liabl e for over $114,000
with Jennings , 14 the p arties filed a stipulat ion stating that the issues concerning the exemption had been resolved by the June 2015 Order and no further evidentiary hearing
was necessary . 15 W ith the Tax Court ’s decision , the value of the entireties exemption ( i.e ., the value of the homestead remaining after subtracting the amount of the couple’s

11 June 2015 Order at 7, in Appellant’s App. at 102.

12 In re Jennings , BAP No. WY

- 15

- 025 (10th Cir. BAP July 9, 2015) (order dismissing case for lack of appellate jurisdiction) (stating that appealed orders were interlocutory).
13 Stipulation on Exemption Objections , in Appellant’s App. at 116

- 18; Ord er Approving Stipulation on Exemption Objections and Order Vacating Hearing , in Appellant’s App. at 119

- 20.

14 Decision at 1, in Appellant’s App. at 107.
15 Stipulation on Exemption Objections at 2, in Appellant’s App. at 117.5 joint debts for which it might be liable) became readily ascertainable . By its terms, the
June 2015 Order could not be final until the Tax Court ruled. Th e Trustee attached a copy of the Tax Court’s decision to his January 11, 2016 status report, but the mere fact of the Tax Court order’s attach ment did not have the eff ect of rendering the June 2015 O rder final. 16 A year later, o n January 12, 2017, the bankruptcy court accepted the stipulation between the debtor and Trustee, 17 entering the 2017 Order that, in part, stated the validity of the entireties exemption had been resolved by the June 2015 Order and no issues remained

. 18 That order was the final order that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment,” 19 and from which a timely appeal was taken. Therefore, we have jurisdiction over this appeal.

16 Decision , in Appellant’s App. at 107

- 08 (attached to Status Report to the Court , in Appellant’s App. at 105

- 06). See Fed. R. Civ. P. 54(a) and Fed. R. Bankr. P. 7054, made applicable to contested matters by Fed. R. Bankr. P. 9014(a). See Zinna v. Congrove , 755 F.3d 1177, 1181 (10th Cir. 2014) ( “ An order is final if it contains ‘ a complete act of adjudication ’ and evidences the [ ] court’s intention that it is the court’s final act in the matter. ” ).

17 Stipulation of Exemption Objections , in Appellant’s App at 116

- 118.
18 2017 Order, in Appellant’s App. at 119. A bankruptcy court order granting or denying an exemption is a final order. Duncan v. Zubrod (In re Duncan) , 294 B.R. 339, 341

- 42 (10th Cir. BAP 2003)

. 19 Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (quoting Catlin v . United States, 324 U.S. 229, 233 (1945) ).6 This appeal involves a review of the bankruptcy court’s legal conclusions concerning the debtor’s eligibility to claim the Wyoming common law TBE exemption and the extent of that exemption. We review legal conclusions de novo

. 20
Facts After Austin Jennings filed this C hapter 7 case, Randy Royal was appointed
C hapter 7 trustee. Jennings and his wife purchased their home in Casper before Mr. Jennings filed. 21 They hold it as tenants by the entirety, a species of title that is recognized by Wyoming common law. When Jennings filed his case, he claimed one hundred percent of the value of the home exempt under § 522(b)(3)(B)

. That section exempts entireties or joint tenant interests in property to the extent they are exempt from process under n onbankruptcy law. He also claimed the less generous Wyoming statutory homestead exemption of $10,000. 22 According to the property tax assessor’s statement, the market value of the property was $304,823

. 23 It is encumbered by a $132,858

20 In re Borgman, 698 F.3d 1255, 1259 (10th Cir. 2012) (Validity of claimed state law exemption is reviewed de novo, without deferring to the bankruptcy court’s interpretation of state law.); In re Duncan, 294 B.R . at 342

. 21 Trustee’s Deed Exhibit 1 Trustee’s Memorandum in Support of Objection to Claim of Exemption , in Appellant’s App. at 74.

22 W YO
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- 101 (West 2010). The Wyoming homestead exemption amount was $10,000 on the date of Jennings’s bankruptcy petition. It was raised to $20,000 in 2012.

23 Property Tax and Assessment Information Exhibit 1 Debtor’s Memorandum in Support of his Exemption Claim , in Appellant’s App. at 68.7 mortgage securing a de bt jointly owed by Jennings and his wife. 24 On Schedule C , Jennings stated the current value of his interest in the home was $152,411.50

– apparently representing the value of his one

- half interest

. 25 The Trustee objected to the entireties exemption

. 26 Jennings had scheduled more than the joint ly

- owed mortgage debt, including a $ 116,629 unsecured priority claim of the IRS that he initially listed as jointly owed. 27 According to the claims register, t he IRS filed an amended proof of claim of $421,691.41

on January 22, 2015, seeking a $11,620.60 priority claim and a $119,621 .44 unsecured claim

. 28 Jennings’ s wife applied to the IRS to be treated as an “in nocent spouse,” which if fully allowed, may have absolved her of her joint liability on the tax debt

. 29 Afte r the IRS denied that application, she appealed to the Tax Court

.

24 Schedule D , in Appellant’s App. at 25. Using these figures, Jennings had $171,965 in equity in the home before deducting any other joint debts.
25 Schedule C , in Appellant’s App. at 24.
26 Trustee’s Objection to Debtor’s Claim of Exemption , in Appellant’s App. at 37

- 40.
27 Schedule E , in Appellant’s App. at 28.
28 Appellant’s App. at 44.
29 The parties have variously referred to Ms. Jennnings’s efforts for relief from joint liability for the tax debt under both the “injured spouse” rule and the “innocent spouse” rule. Different tax forms are filed for the respective relief but both types of relief may alter a spouse’s allocation of liability for taxes on a jointly filed return. IRS Form 8379 is filed for “injured spouse” relief. This enables the “injured spouse” to get back their share of a joint refund where the joint overpayment is applied to a past

- due obligation of the other spouse. See https://w ww.irs.gov/forms

- pubs/form

- 8379

- injured

- spouse - allocation (viewed Nov. 20, 2017). IRS Form 8857 is filed for “innocent spouse” relief. This relief is available if the other spouse should be solely responsible for an erroneous item or an underpayment of t ax on the joint tax return. See www.irs.gov/form8857 (viewed Nov. 20,8 Jennings and the Trustee initially agreed that the exemption issues were not ripe for trial until the Tax Court ruled on Ms. Jennings’ s appeal. Then, in February of 2015, Jennings’ s counsel requested that the bankruptcy court hear and consider the legal merits of the Trustee’s objection. After receiving briefs, the bankruptcy court entered an order dated February 11, 2015 , stating that the decision whether the debtor was entitled to take the TBE exemption depended on whether Ms. Jennings was jointly liable for the tax debt, the issue then pending before the Tax Court (the “February 2015 Order”)

. 30 Jennings moved to alter or amend that decision. 31 After another hearing, the bankruptcy co urt entered the June 2015 Order, stating that “Wyoming law allows a debtor to exempt property held as tenants by entireties.” 32 The bankruptcy court further held: The allowable exemption provides the debtor an exemption in the real property, to the extent t hat the equity exceeds the total amount of debts owed jointly by the Debtor and his non

- filing spouse. In this case, the Debtor is allowed t his claimed exemption. However, the amount of the Debtor’s exemption cannot be determined until the appeal pending i n the Tax Court is entered. 33 2017). The only documentation of the relief sought by Ms. Jennings is the final stipulated Tax Court decision entered November 12, 2015 refere ncing I.R.C. § 6015(f) and it states that there were no overpayments in income tax. Appellant’s App. at 107

- 08. Based upon the limited facts of record before this Panel, and the fact that the Jennings did not pay their tax liability, it would appear that M s. Jennings sought “innocent spouse” relief. See also 26 U.S.C. § 6015 (Relief from joint and several liability on joint return). In any event, the theory under which Ms. Jennings sought relief from joint liability for the tax debt is not material to the r esolution of this appeal.
30 February 2015 Order, in Appellant’s App. at 78

- 82.
31 Motion for Further Findings and/or to Alter or Amend Order , in Appellant’s App. at 85

- 87.
32 June 2015 Order at 7, in Appellant’s App. at 102.
33 Id. (second emphasis added).9 Jennings appealed the June 2015 Order , but because it left open the possibility that Jennings might not have “equity” 34 above the joint claim to exempt, another panel of this Court concluded that it was interlocutory and dismis sed the appeal. 35 Then, in November 2015, the Tax Court entered its decision accepting an a greement between Ms. Jennings and the IRS that Ms. Jennings was jointly liable with Jennings for $114,068.30 of the tax
debt. 36 The Trustee attached a copy of that ruling to a status report dated January 11,
2016 and filed it with the bankruptcy court

. 37 In an order dated November 11, 2016, the bankruptcy court set the exemption objection for evidentiary hearing in January 2017. 38
J ennings and the Trustee requested a status conference after which they submitted a Stipulation o n Exemption Objections 39 that recited the TBE exemption “was resolved by this court on June 5, 2015 by [the June 2015 Order],” 40 stated that issues surrounding

ce rtain personal property exemptions had been resolved, and advised the bankruptcy

34 Id.
35 In re Jennings, BAP No. WY

- 15

- 025 (10th Cir. BAP July 9, 2015) (order dismissing case for lack of appellate jurisdiction) (stating the June 2015 Order and February 2015 Order were interlocutory).
36 Decision , in Appellant’s App. at 107

- 08. This joint debt would further reduce the amount of debtor’s exemption: $171,965 equity

- $114,068.30 joint tax liability = $57,896.70.

37 Status Report to the Court , in Appellant’s App. at 105

- 06.
38 Order Scheduling Evidentiary Hearing on Trustee’s Objection to Exemp tion , in App ellant’s App. at 10 9

- 10.
39 Appellant’s App. at 116.
40 Id. at 2, in Appellant’s App. at 117.10 court that a hearing was unnecessary. 41 The bankruptcy court then entered the 2017 Order, approving the parties’ stipulation and finding that the “issue of the debtor ’ s claim

o f exemption in his real property was resolved by this Court on June 5, 2015 by [the June 2015 Order]” 42 and that no further issues relating to the debtor’s exemption claims remained. 43 This appeal followed. Analysis Wyoming law provides that when a married c ouple acquire s land by a deed “ to husband and wife,” 44 without saying more, a tenancy by the entireties is created. 45 The Jennings’ s deed to the ir Casper property fits this conveyance description. 46 The Wyoming Supreme Court has described the nature of a tenancy by the entireties :

“ A conveyance or devise to two persons, who are husband and wife at the time property vests in them,” says 2 Thompson on Real Property, 939, § 1735, “creates an estate by entireties. By reason of their legal unity by marriage, th ey together take the whole estate as one person. Neither has a separate estate or interest in the land, but each has the whole estate. Upon the death of one the entire estate and interest belongs to the other, not by virtue of survivorship , but by virtue o f the title that vested under the original limitation. ” 47

41 Id.

42 2017 Order, in Appellant’s App. at 119

- 20.
43 Id.

44 Witzel v. Witzel , 386 P.2d 103, 105 (Wyo. 1963)

. 45 Id.
46 Trustee’s Deed Exhibit 1 Trustee’s Memorandum in Support of Objection to Claim of Exemption , in Appellant’s App. at 74.

47 Peters v. Dona , 54 P.2d 817, 819

– 20 ( Wyo. 1936) (emphasis added). See also Ward Terry & Co. v. Hensen , 297 P.2d 213, 214

- 15 ( Wyo. 1956)

.11 Property that is held in the entirety cannot be subjected to a husband’s debt during the life of the wife without her consent. 48 The husband and wife “together take the whole estate
as one person, an d ‘neither has a separate estate of interest in the land, but each has the whole estate.’” 49 Likewise, Wyoming law provides that property held in the entirety
cannot be subject ed to the individual debts of either spouse. 50 Because neither husband nor wife ha s a separate interest or estate , neither one can alienate or encumber TBE property without the other spouse’s consent

. The Bankruptcy Code exempts a debtor’s entirety interest in § 522(b)(3)(B ) by exempting

— Any interest in property in which the debtor ha d, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable nonbankruptcy law. 51 Accordingl y, Wyoming bankruptcy courts traditionally have held that Wyoming debtors may claim their entirety interests exempt because those interests would be “exempt from

48 Ward Terry , 2 9 7 P.2d at 215

. S ee also Colo

. Nat ’ l Bank v. Miles, 711 P.2d 390, 393

- 94 (Wyo. 1985)

. 49 Zubrod v. Duncan (In re Duncan) , 329 F.3d 1195, 1201 (10th Cir. 2003) (quoting Talbot v. United S tates , 850 F.Supp. 969, 973 (D. Wyo. 1994) ) (quoting Peters, 54 P.2d at 820 )

. 50 Peters , 54 P.2d at 826

. See also Talbot , 850 F. Supp. at 973

. (“[P]roperty held as a tenancy by the entireties ‘is not subject to execution or other creditor's process for the separate debts of one of the spouses.’”).
51 11 U.S.C. § 522(b)(3)(B) (emphasis added).12 process” 52 as a matter of Wyoming law. 53 The leading case is In re Wenande , where the bankruptcy court stated that while TBE property may not be used to satisfy individual claims against either debtor it may be used to satisfy the husband and wife’s joint debts. In effect, under Wyoming law, TBE property is not exempt from joint claims against both spouses. Thus, the amount of the exemption depends on the existence of joint creditors. The Wenande bankruptcy court concluded: The amount of entireties property that these joint debtors may exempt out of their estate under § 522(b)(2)(B) is t heir equity in the entireties property, less the total sum of all joint claims against both debtors. If the sum of the total claims held by creditors with claims against both debtors exceeds the debtors’ equity in their entireties property, then none of th eir entireties property may be exempted from the estate. If there were not a single creditor with a claim against both of the debtors, their entireties property would be totally exempt. 54 Any entireties property that is not exempt remains property of the e state. Once a debtor claims an exemption , the burden to prove th at th e exemption is not proper shifts to the
Trustee. 55 Jennings does not challenge these legal principles . He instead relies on several other arguments to defeat the Trustee’s efforts to admin ister that part of Jennings’ s TBE property that may not be exempt. He first argues that the Trustee may not “stand in the

52 Id.
53 In re Wenande, 107 B.R. 770, 774 (Bankr. D.Wyo. 1989) (joint debtors case); In re Welty, 217 B.R. 907, 911 (Bankr. D. Wyo. 1998) (applying Wenande in single debtor case with non

- filing spouse).
54 Wenande, 107 B.R. at 774

. 55 Fed. R. Bankr. P. 4003(c ).13 shoes of ” 56 the IRS to challenge the exemption. He argues , without authority, that the “particular nature” 57 of tax debt precludes the Trustee from challenging the exemption. Jennings mischaracterizes the Trustee’s position in this case

. Jennings relies on t he Fourth Circuit Court of Appeals decision in Schlossberg in vain. 58 There, the Chapter 7
trustee sought to invoke § 544(a)(2) hypothetical creditor status to step into the shoes of the IRS in an effort to reach TBE property debtor owned with her non

- filing spouse and thwart the debtor’s exemption claim under Maryland law. T he Fourth Circuit rejected the
trust ee’s attempt to invoke § 544(a)(2) , stating that the dispositive issue was “whether § 544(a)(2) vests a trustee with the rights and powers of the IRS as a hypothetical creditor to penetrate the entireties exemption for the benefit of the individual credito rs of the debtor.” 59 Here, the debt in question is a joint liability to the IRS ; in Schlossberg it was
the debtor’s individual debt. As in Wyoming, Maryland law exempts TBE property from
process executed by the holder of a claim against one spouse. 60 The Fourth Circuit also noted that § 544(a)(2) confers upon a trustee the rights and powers of a hypothetical “creditor that extends credit to the debtor

. ” 61 The IRS is not a “creditor that extends

56 Appellant’s Br. 10.
57 Id. at 11.
58 Schlossberg v. Barney, 380 F.3d 174 (4th Cir. 2004)

. 59 Schlossberg, 380 F.3d at 177 (emphasis added).
60 Id. at 178. See Ward Terry & Co. v. Hensen , 29 7 P.2d 213, 215 ; Colo

. Nat ’ l Bank v. Miles, 711 P.2d 390, 393

- 94 (Wyo. 1985)

. 61 11 U.S.C. § 544(a)(2)

.14 credit” 62 within the meaning of § 544(a)(2) and therefore t he trustee cannot step into the shoes of the IRS. A § 544(a)(2) hypothetical creditor’s debt is voluntar il y incurred ; a debtor’s tax liability is not the product of a voluntary extension of credit. 63 In short, the trustee could not invoke § 544(a)(2) to d efeat the deb tor’s entireties exemption. Schlossberg is also ir relevant here because the Trustee d id not invoke “strong

- arm” powers under § 544(a)(2). Instead, he claim ed that the joint debts , including the tax debt, of Jennings and his non

- filing spouse reduced the extent of the entireties exemption , relying on In re Wenand e . Jennings further suggests that a trustee cannot not use a joint debt to exercise control over a non

- debtor’s property because a non

- filing spouse’s TBE interest is not property of the estate. But Jennings’ s interest undoubtedly is part of the estate’s property ; that interest is an indivisible interest in the whole property

. 64 Debtors cannot shield property from the estate simply because it is TBE property. 65 Jennings ’ s next argument was not presented to the bankruptcy court and is based upon facts occurring after the June 15 Order , after the conclusion of the tax appeal, and

62 Id.
63 Schlossberg , 380 F.3d at 180

- 81

. See § 544(a)(2) (voiding transfers that are voidable by “a creditor that extends credit to the debtor.”).
64 Peters , 54 P.2d at 820 ; Zubrod v. Duncan ( In re Duncan ) , 329 F.3d 119 5, 1201 (10th Cir. 2003) ; In re Anselmi, 52 B.R. 479, 483 (Bankr. D. Wyo. 1985) (debtor’s interest in entirety property is property of debtor’s estate under 11 U.S.C. § 541(a)(3)).
65 In re Wenande , 107 B.R. 770, 774

- 75 (Bankr. D. Wyo. 1989 ) (concluding joint debtors’ non

- exempt TBE property is property of the estate and may be used to satisfy all creditor claims.); In re Welty, 217 B.R. 907, 911 (Bankr. D. Wyo. 19 89) (applying Wenande in single debtor spouse case ) ; Anselmi, 52 B.R. at 483

.15 after Jennings filed this appeal

. 66 Nevertheless, we note that o n March 31, 2017, t he
Trustee filed an adversar y proceeding to sell the TBE property under § 363(h). 67 T he bankruptcy court may determine whether the Casp e r property can be feasibly partitioned in kind or whether it must be sold and the proceeds divided between the estate and the

non - debtor spouse . That proceeding is not relevant to the exemption issues presented in this appeal; nor is it complete . A discussion of its merits is not properly before us. Finally, Jennings claims that the appealed order somehow violat es the distribution priorities establishe d by § 726(a). 68 Jennings appears to conflate allowing the exemption with implementing the distribution scheme under the Bankruptcy Code. 69 This issue is also premature because it does not appear that a ny distribution has occurred. Conclusion
All that is be fore us today is the June 2015 Order that upholds Jennings’ s right to claim his entireties interest exempt so long as that interest is greater than Mr. and Ms.

66 Issues and arguments not raised below will not ordinarily be considered on appeal. Rademacher v. Colo

. Ass’n. of Soil Conservation Dists

. Med

. Benefit Plan , 11 F.3d 1567, 1571

- 72 (10th Cir. 1993) . An appellate court may only consider materials actually b efore the trial court. Pelican Prod. Corp. v. Marino , 893 F.2d 1143, 1148 (10th Cir. 1990)

. 67 11 U.S.C. § 363(h) ; Appellant’s App. at 126

- 31.
68 11 U.S.C. § 726

. 69 Wenande observes that entirety property that is not exempt is property of the estate. State l aw determines the extent of the exemption, but bankruptcy law, § 726, determines distribution and nowhere provides specifically for joint creditors. 107 B.R. at 774

- 75 , citing Kalevitch, Some Thoughts on Entireties in Bankruptcy , 60 Am. Bankr. L.J. 141, 1 48 (Spring, 1986)

.16 Jennings’ s joint indebtedness. Because we agree that he may exercise that exemption to that exte nt, we AFFIRM.