In re: HERBERT M. ZUKERKORN and JENNIFER K. ZUKERKORN v. HERBERT M. ZUKERKORN and JENNIFER K. ZUKERKORN

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: HERBERT M. ZUKERKORN and
JENNIFER K. ZUKERKORN,
Debtors,
______________________________
LINDA S. GREEN,
Appellant,
v.
HERBERT M. ZUKERKORN and
JENNIFER K. ZUKERKORN,
Appellees.
No. 13-60003
BAP No. 11-1506
MEMORANDUM*
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Jury, and Johnson, Bankruptcy Judges, Presiding
Argued and Submitted January 16, 2015
San Francisco California
Before: WALLACE, M. SMITH, and FRIEDLAND, Circuit Judges.
Linda S. Green, the trustee of Herbert M. Zukerkorn and Jennifer K.
Zukerkorn’s Chapter 7 bankruptcy estate, appeals from the decision of the
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
FILED
FEB 4 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
bankruptcy court, which was affirmed by the Bankruptcy Appellate Panel, denying
Green’s motions for turnover of income distributed to the Zukerkorns from the
Herbert Zukerkorn Trust after the Zukerkorns filed for bankruptcy. The Trust is an
inter vivos trust with a spendthrift provision and a choice-of-law clause stating that
the Trust is governed by Hawaii law. On appeal, Green argues that the Trust should
be governed by California law, that California law entitled the bankruptcy trustee to
25% of post-petition distributions from the Trust, and that—under either Hawaii or
California law—11 U.S.C. § 541(a)(6) and § 541(a)(7) permit the bankruptcy trustee
to compel turnover of all post-petition income distributions from the Trust. We
review the bankruptcy court’s conclusions of law de novo and findings of fact for
clear error. In re Hoopai, 581 F.3d 1090, 1095 (9th Cir. 2009).
We apply federal choice-of-law rules in bankruptcy cases. In re Lindsay, 59
F.3d 942, 948 (9th Cir. 1995). Under the considerations from the Restatement
(Second) of Conflict of Laws § 187(2) and § 270(a), the bankruptcy court was
correct that Hawaiian law applies in light of the Trust’s explicit choice-of-law
provision. We give effect to the Trust’s choice-of-law provision because Hawaii
has a sufficiently significant relationship to and interest in the Trust. Moreover,
even assuming (without deciding) that California has the most significant

-- 2 of 3 --

3
relationship to the Trust, California’s interest in the Trust does not implicate any
fundamental public policy.
Because the Trust is governed by Hawaii law, the bankruptcy court correctly
denied Green’s motion to compel turnover of 25% of post-petition distributions
under Cal. Probate Code § 15306.5.
Green did not raise an argument based on 11 U.S.C. § 541(a)(6) or § 541(a)(7)
in the bankruptcy court. Arguments not raised in the bankruptcy court are waived,
and we decline to consider these arguments for the first time on appeal. See In re
The Mortg. Store, Inc., 773 F.3d 990, 998 (9th Cir. 2014) (issues not raised in
bankruptcy court are waived).
AFFIRMED.

-- 3 of 3 --