In re: WILLIAM M. BEHLKE and DINA E. BEHLKE v. SAUL EISEN, United States Trustee

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0053P (6th Cir.)
File Name: 04a0053p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
In re: WILLIAM M. BEHLKE
and DINA E. BEHLKE,
Debtors,
_______________
WILLIAM M. BEHLKE and
DINA E. BEHLKE,
Appellants,
v.
SAUL EISEN, United States
Trustee,
Appellee.
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No. 02-4306
Appeal from the United States Bankruptcy Court
for the Northern District of Ohio at Akron.
No. 01-53608—Marilyn Shea-Stonum, Bankruptcy Judge.
Argued: January 28, 2004
Decided and Filed: February 20, 2004
2 In re Behlke No. 02-4306
*The Honorable Denise Page Hood, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Before: BOGGS, Chief Circuit Judge; GUY, Circuit
Judge; HOOD, District Judge.*
_________________
COUNSEL
ARGUED: Stephen D. Hobt, Cleveland, Ohio, for
Appellants. P. Matthew Sutko, DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
Stephen D. Hobt, Cleveland, Ohio, for Appellants.
P. Matthew Sutko, DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
_________________
OPINION
_________________
RALPH B. GUY, JR., Circuit Judge. Debtors, William M.
and Dina E. Behlke, appeal from the decision of the
Bankruptcy Appellate Panel (BAP) affirming the bankruptcy
court’s order granting the Trustee’s motion to dismiss this
voluntary Chapter 7 bankruptcy petition for “substantial
abuse” under 11 U.S.C. § 707(b). Section 707(b) provides
that the bankruptcy court, on its own motion or the motion of
the United States Trustee, “may dismiss a case filed by an
individual debtor under this chapter whose debts are primarily
consumer debts if it finds that the granting of relief would be
a substantial abuse of the provisions of this chapter. There
shall be a presumption in favor of granting the relief
requested by the debtor.”
The debtors argue that the bankruptcy court erred in
deciding to include 401K contributions as “disposable

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No. 02-4306 In re Behlke 3
income” for purposes of determining the debtors’ ability to
pay and in concluding that there was substantial abuse
warranting dismissal under § 707(b). The debtors also argue
that the BAP incorrectly applied an abuse of discretion
standard in reviewing the bankruptcy court’s decision. After
a review of the record and the applicable law, we affirm the
bankruptcy court’s decision.
I.
Debtors filed a voluntary petition in bankruptcy under
Chapter 7. The Trustee filed a motion to dismiss the case
under § 707(b), arguing that to grant the debtors a Chapter 7
discharge in this “no asset” case would constitute a
substantial abuse because the debtors have disposable income
with which to pay their creditors. The parties stipulated to the
underlying facts at the time of the hearing on the motion. On
April 4, 2002, the bankruptcy court issued its decision setting
forth the stipulated facts, the applicable law, and the reasons
for finding that the Trustee met its burden of demonstrating
that “these debtors are not ‘needy’ and that granting them a
Chapter 7 discharge would be a ‘substantial abuse’ of the
bankruptcy system.”
There is no dispute concerning the stipulated facts, which
the bankruptcy court set forth as follows:
1. In December 1995, William Behlke was about to
become a partner in a large law firm in California at
which he had been practicing for six years.
2. Mr. Behlke left California and followed his then
wife (now his ex-wife), Karen, to Ohio in an effort
to save his marriage.
3. Because he moved to Ohio, Mr. Behlke lost his
position in California. Mr. Behlke spent the next
13½ months out of work, first working to obtain a
4 In re Behlke No. 02-4306
license to practice law in Ohio and then searching
for employment.
4. In February 1997, Mr. Behlke obtained employment
with Rubbermaid in its Office of Corporate Counsel.
5. The dissolution of the marriage between William
and Karen Behlke became final on April 8, 1998.
William and Karen Behlke had one child from their
marriage whose custody they now share. William
Behlke pays child support of $653.00 per month.
6. In March 1999, Rubbermaid merged with Newell
Corporation to form Newell Rubbermaid, Inc.
Seven attorney’s jobs at Rubbermaid were
eliminated leaving William Behlke as the only
attorney in Rubbermaid’s Office of Corporate
Counsel. Newell retained its staff of four in-house
attorneys in its offices in Freeport, Illinois, including
the general counsel for Newell Rubbermaid, Inc.
Mr. Behlke’s employment at Newell Rubbermaid
appears currently steady, though the possible early
retirement of general counsel for Newell could
signal an attempt to consolidate the office of general
counsel at Newell.
7. In January 1999, Dina Behlke (then Dina
Christopher) left her employment as a paralegal and
began Mobile P.I. Mobile P.I. is a business which is
employed (now exclusively) by the law firm of
Friedman, Domiano & Smith to go to the homes of
their various potential personal injury clients
throughout northern Ohio and obtain the client’s
medical releases and signatures upon retainer
agreements. If Mrs. Behlke obtains the requested
signatures, Mobile P.I. is paid a flat fee for
Mrs. Behlke’s services. If not, Mobile P.I. receives
no compensation. Mobile P.I. is not reimbursed for
Mrs. Behlke’s mileage or expenses. During the

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No. 02-4306 In re Behlke 5
years 2000 and 2001, Ms. Behlke traveled
throughout Medina, Cuyahoga, Summit, Stark,
Trumbull, Portage, Mahoning, Wayne, Carroll,
Holmes, Geauga, Columbiana, Tuscarawas, Ashland
and Richland counties for work on behalf of Mobile
P.I.
8. William and Dina Behlke were married on
December 21, 1999.
9. On September 12, 2001, Mr. and Mrs. Behlke
initiated this joint, voluntary chapter 7 bankruptcy.
At the time of filing, the Behlkes owed a total of
$163,944.00 in unsecured nonpriority debt which is
“consumer” in nature. Of that amount, $30,140.00
is for a student loan debt owed by William Behlke.
10. The remaining $133,804.00 of unsecured
nonpriority debt that was owed at the time of the
bankruptcy filing is from various credit card
accounts of both William and Dina Behlke.
11. According to the debtors’ records, on December 31,
1998, debtors owed between them a total of
$60,211.80 in credit card debt, which debt was
mostly incurred between 1996 and early 1998 and
primarily owed by William Behlke. On
December 31, 1999, debtors’ credit card debt totaled
$100,353.00. On December 31, 2000, debtors owed
a total of $124,437.72 in credit card debt.
12. Debtors’ net monthly income totals $4,923.00 and
their net monthly expenses total $4,749.00.
13. Debtors’ Schedule I – Current Income of Individual
Debtor(s) shows a voluntary monthly contribution of
$460.00 to William Behlke’s employer sponsored
401K plan.
6 In re Behlke No. 02-4306
14. Debtors’ gross income for 1999 was $93,116.00 and
their gross income for 2000 was $93,036.00.
15. For tax year 2000, debtors received an income tax
refund of $2,313.00.
16. Debtors are eligible for relief under chapter 13 of the
Bankruptcy Code.
There was no dispute that the debts in this case were primarily
unsecured consumer debts.
As the bankruptcy court observed, this court has
determined that substantial abuse can be predicated on a
showing of either a lack of honesty or a want of need. In re
Krohn, 886 F.2d 123, 126 (6th Cir. 1989). The Trustee did
not rely on a lack of honesty, but maintained that the debtors
were not “needy.” Examining this question, the bankruptcy
court found that the voluntary 401K contributions should be
included in disposable income; that, including those
contributions, debtors had an ability to pay out of future
income; and that, taken with the other Krohn factors,
discharge in this case would be a substantial abuse of the
bankruptcy system. The BAP affirmed on October 10, 2002,
and this appeal followed.
II.
A. Standard of Review
“We independently review the decision of the bankruptcy
court that comes to us by way of appeal from a Bankruptcy
Appellate Panel.” Nardei v. Maughan (In re Maughan), 340
F.3d 337, 341 (6th Cir. 2003). The bankruptcy court’s
findings of fact are reviewed for clear error, while its
conclusions of law are reviewed de novo. Nicholson v.
Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir. 1994);
Rembert v. AT&T Universal Card Servs. (In re Rembert), 141
F.3d 277, 280 (6th Cir. 1998). Mixed questions are to be

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No. 02-4306 In re Behlke 7
separated into their component parts and reviewed under the
appropriate standard. Mayor of Baltimore v. W. Va. (In re
Eagle-Picher Indus., Inc.), 285 F.3d 522, 527 (6th Cir.), cert.
denied, 537 U.S. 880 (2002). “Finally, the bankruptcy court’s
equitable determinations are reviewed for an abuse of
discretion.” Id. (citations omitted).
Debtors contend that the BAP erred in applying an abuse of
discretion standard to the ultimate question of whether there
was substantial abuse warranting dismissal, without resolving
the question of whether the issue should be reviewed de novo
or for an abuse of discretion. While it appears that the BAP
actually concluded that it would affirm under either standard,
ours is an independent review of the bankruptcy court’s
decision.
Several circuits have stated, albeit without discussion or
analysis, that whether the facts as found by the bankruptcy
court constitute substantial abuse is a question of law that is
to be reviewed de novo. See Stewart v. United States Trustee
(In re Stewart), 175 F.3d 796, 803 (10th Cir. 1999); Kornfield
v. Schwartz (In re Kornfield), 164 F.3d 778, 783 (2d Cir.
1999); First USA v. Lamanna (In re Lamanna), 153 F.3d 1,
3 (1st Cir. 1998); Green v. Staples (In re Green), 934 F.2d
568, 570 (4th Cir. 1991). On the other hand, the Eighth
Circuit BAP has held that dismissals for substantial abuse are
to be reviewed for abuse of discretion. In re Nelson, 223 B.R.
349, 352 (8th Cir. BAP 1998).
While this court has not specifically considered the
question of the appropriate standard for reviewing dismissals
under § 707(b), we have concluded that a decision to dismiss
“for cause” under § 707(a) will be reversed only for an abuse
of discretion because it is an equitable determination. Indus.
Ins. Servs., Inc. v. Zick (In re Zick), 931 F.2d 1124, 1126 (6th
Cir. 1991). In discussing the purposes of § 707(b), the court
in Krohn indicated that dismissal for substantial abuse is also
an equitable determination. Krohn, 886 F.2d at 126 (§ 707(b)
gives discretion to dismiss for abusive filing and allows
8 In re Behlke No. 02-4306
bankruptcy courts to deal equitably with such debtors). In
addition, both § 707(a) and § 707(b) provide that the
bankruptcy court “may” dismiss and this permissive language
leads to the inevitable conclusion that the decision whether to
dismiss either “for cause” or “substantial abuse” is
discretionary. As a result, we conclude that the ultimate
question of whether to dismiss for substantial abuse under
§ 707(b) is reviewed for abuse of discretion. See also AMC
Mortgage Co. v. Tenn. Dept. of Revenue (In re AMC
Mortgage), 213 F.3d 917, 920 (6th Cir. 2000) (dismissal for
cause under 11 U.S.C. § 1112(b) is reviewed for abuse of
discretion).
B. Dismissal under § 707(b)
Congress chose not to define the term “substantial abuse,”
leaving it to the courts to decide how it should be determined.
Although a number of circuits have addressed this question,
this court is bound by the approach set forth in Krohn, where
we explained that:
Those courts which have reviewed the legislative
history, have generally concluded that, in seeking to curb
“substantial abuse,” Congress meant to deny Chapter 7
relief to the dishonest or non-needy debtor. See [In re]
Walton, 866 F.2d [981, 983 (8th Cir. 1989).] In
determining whether to apply § 707(b) to an individual
debtor, then, a court should ascertain from the totality of
the circumstances whether he is merely seeking an
advantage over his creditors, or instead is “honest,” in the
sense that his relationship with his creditors has been
marked by essentially honorable and undeceptive
dealings, and whether he is “needy” in the sense that his
financial predicament warrants the discharge of his debts
in exchange for liquidation of his assets. See 4 Collier
[on Bankruptcy] ¶ 707.07, at 707-20 [(15th ed. 1989)].
Substantial abuse can be predicated upon either lack of
honesty or want of need.

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No. 02-4306 In re Behlke 9
Krohn, 886 F.2d at 126. After identifying some factors
relevant to ascertaining a debtor’s honesty, the Krohn court
went on to explain the factors relevant to determining whether
a debtor is “needy”; first among them being the debtor’s
“ability to repay his debts out of future earnings.” Id.
Significantly, the court expressly held that this factor “alone
may be sufficient to warrant dismissal.” Id. The court
explained this and other factors as follows:
For example, a court would not be justified in concluding
that a debtor is needy and worthy of discharge, where his
disposable income permits liquidation of his consumer
debts with relative ease. Other factors relevant to need
include whether the debtor enjoys a stable source of
future income, whether he is eligible for adjustment of
his debts through Chapter 13 of the Bankruptcy Code,
whether there are state remedies with the potential to
ease his financial predicament, the degree of relief
obtainable through private negotiations, and whether his
expenses can be reduced significantly without depriving
him of adequate food, clothing, shelter and other
necessities.
Id.
Debtors argue, in disregard of Krohn, that it was error for
the bankruptcy court to find substantial abuse in the absence
of evidence of unfair dealing or bad faith on their part.
Debtors rely on In re Browne, 253 B.R. 854, 856 (Bankr.
N.D. Ohio 2000), for the proposition that an ability to pay,
without more, is an insufficient basis to dismiss for
substantial abuse. Not only does Browne inaccurately cite
Krohn for this proposition, but Krohn clearly holds that the
ability to pay may be but is not necessarily sufficient to
warrant dismissal for substantial abuse. See In re Austin, 299
B.R. 482, 486 (Bankr. E.D. Tenn. 2003) (discussing Browne).
Although debtors rely on decisions from other circuits to the
contrary, we are bound by Krohn. Salmi v. Sec’y of Health &
Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). The
10 In re Behlke No. 02-4306
1Debtors’ monthly expenses include a child support payment
of $635.00 for Mr. Behlke’s minor child.
2The court noted that the debtor’s beneficial interest in the
ERISA account was exempted from the bankruptcy estate. Id. at
777.
bankruptcy court committed no legal error in finding
substantial abuse absent a finding of “dishonesty.”
1. Ability to Pay
One way courts determine a debtor’s ability to pay is to
evaluate whether there would be sufficient disposable income
to fund a Chapter 13 plan. See Stuart v. Koch (In re Koch),
109 F.3d 1285, 1288 (8th Cir. 1997); Zolg v. Kelly (In re
Kelly), 841 F.2d 908, 914 (9th Cir. 1988). “[D]isposable
income” is income “received by the debtor and which is not
reasonably necessary to be expended . . . for the maintenance
or support of the debtor or a dependent of the debtor.” 11
U.S.C. § 1325(b)(2). The debtors do not contest any of the
bankruptcy court’s factual findings underlying the conclusion
that, without including the 401K contribution, their monthly
income exceeded their monthly expenses by $174.00.1
Rather, they claim it was error for the bankruptcy court to
include Mr. Behlke’s voluntary 401K contribution of $460.00
per month as disposable income for purposes of determining
their ability to pay their creditors out of future income.
Our starting point must be this court’s holding in
Harshbarger v. Pees (In re Harshbarger), 66 F.3d 775, 777-
78 (6th Cir. 1995), that the debtor’s voluntary repayment of
loans to her ERISA-qualified profit sharing account should be
treated as part of the disposable income in the bankruptcy
estate.2 Affirming the rejection of a Chapter 13 plan, the
court held that: “This expenditure may represent prudent
financial planning, but it is not necessary for the ‘maintenance

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No. 02-4306 In re Behlke 11
or support’ of the debtors.” Id at 777. The court explained its
rationale as follows:
It is unfortunate that Mrs. Harshbarger’s expected
pension benefits may be diminished by a future setoff
against the unpaid portion of her obligation to the
ERISA-qualified account. However, this consideration
does not alter the result under the bankruptcy laws. In
these circumstances, “it would be unfair to the creditors
to allow the Debtors in the present case to commit part of
their earnings to the payment of their own retirement
fund while at the same time paying their creditors less
than a 100% dividend.” In re Jones, 138 B.R. 536, 539
(Bankr. S.D. Ohio 1991).
Id. at 778. We agree with those courts that have held this
reasoning is equally applicable to a debtor’s voluntary
contributions to a 401K or other retirement plan. See, e.g.,
Anes v. Dehart (In re Anes), 195 F.3d 177, 180-81 (3d Cir.
1999) (loan repayments are in effect contributions to the
debtor’s retirement account and are disposable income for
purposes of a Chapter 13 plan). In fact, a number of
bankruptcy courts have included voluntary 401K
contributions as disposable income in considering whether
dismissal was warranted for substantial abuse under § 707(b).
See Austin, 299 B.R. at 486-87 (voluntary retirement
contributions constitute disposable income in considering
dismissal under § 707b) (citing cases); In re Keating, 298
B.R. 104, 110-11 (Bankr. E.D. Mich. 2003) (“There is an
inherent unfairness in permitting a debtor to pay himself by
funding his own retirement account while paying creditors
only a fraction of their just claims.”); In re Heffernan, 242
B.R. 812, 818 (Bankr. D. Conn. 1999) (overwhelming
consensus among bankruptcy courts that debtor’s voluntary
payment into pension, savings, or 401K-type plan is not a
reasonably necessary expenditure) (citing cases). But see In
re Mills, 246 B.R. 395, 401-02 (Bankr. S.D. Cal. 2000)
(allowing a modest contribution to 401K to be excluded from
12 In re Behlke No. 02-4306
disposable income where the debtor is near the age of
retirement and has no other retirement savings plan).
Without arguing that voluntary retirement contributions can
never be disposable income, debtors claim it was error for the
bankruptcy court to find that the 401K contributions in this
case were not reasonably necessary for the maintenance and
support of the debtors or their dependent. In particular, they
emphasize that they had only $48,200 in retirement savings
between them at the time of the bankruptcy filing.
After noting that the debtors had excess income aside from
the 401K contributions, the bankruptcy court made the
following findings:
Although saving for retirement is, no doubt, important to
these debtors, their Schedule B – Personal Property
reflects accumulated retirement savings of $48,200. In
addition to these retirement savings, debtors’ Schedule B
also lists stock options on 1,025 shares of Newell
Rubbermaid stock. Although these stock options did not
appear to have any immediate value based upon the stock
trading price on the date debtors filed their petition, there
has been no evidence to indicate that such options are not
now or could not become valuable in the future. These
debtors also own the home which serves as their primary
residence. On their Schedule A – Real Property, debtors
listed the property as having a current market value of
$135,000.00 with a first mortgage of $124,432.00 and
there is no indication in debtors’ Schedules that they are
behind on any mortgage payments. Moreover, there has
been nothing to indicate that the value of this real
property will not appreciate.
(Footnote omitted.) Thus, applying Harshbarger and finding
that the debtors had accumulated retirement savings as well
as other personal and real property of potentially significant
future value, the bankruptcy court found that the monthly
401K contribution, which is equal to 6% of Mr. Behlke’s

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No. 02-4306 In re Behlke 13
gross income, should be included as disposable income for
purposes of determining the debtors’ ability to pay their
creditors out of future earnings.
We agree completely and find no clear error in the
bankruptcy court’s finding that the 401K contribution in this
case was not reasonably necessary to the maintenance and
support of the debtors or their dependent and that it should be
included as disposable income.
2. Substantial Abuse
Turning to the ultimate question of whether there was
substantial abuse warranting dismissal under § 707(b), it is
apparent from even a cursory examination of the bankruptcy
court’s decision that its finding of substantial abuse rested not
only on the finding that the debtors had an ability to pay their
creditors out of future income to the tune of $634.00 per
month, but also on consideration of the other factors relevant
to determining whether the debtors were “needy.” The
bankruptcy court explained as follows:
If debtors’ income and expenses remain relatively the
same (and there was no argument or evidence from either
party to suggest otherwise) and if Mr. Behlke’s 401K
contribution were added to debtors’ monthly income and
then applied toward the payment of debts through a
chapter 13 plan, debtors could pay approximately 14% of
their debts over 36 months. If payments were extended
over a 60 month period, debtors could pay approximately
23% of their debts. See 11 U.S.C. § 1322(d) and
§ 1325(b)(1)(B). . . . The Court further finds that debtors’
ability to pay at least a 14% dividend to their creditors
without having to alter their budgeted expenses (other
than a contribution to a retirement savings plan) lends to
a finding that these debtors can repay debts out of future
earnings through the funding of a chapter 13 plan. That
these debtors may only be able to pay their creditors 14
cents on the dollar does not act to change the Court’s
14 In re Behlke No. 02-4306
analysis and finding because, if it did, debtors could be
encouraged to amass debt prior to filing chapter 7.
In addition to evaluating ability to pay debts out of
future income, other factors to be taken into account to
determine if debtors are “needy” include whether debtors
enjoy a stable source of income, whether debtors’
expenses can be reduced significantly without depriving
them of adequate food, clothing, shelter and other
necessities and whether debtors’ financial situation is the
result of an unforseen catastrophic event. In re Krohn,
886 F.2d at 126-28. Mr. Behlke has been employed in
the same position since February 1997. Although
debtors allude to a possibility that Mr. Behlke’s
employment could be eliminated through consolidation
of Newell Rubbermaid’s office of general counsel, the
only evidence actually before the Court demonstrates that
Mr. Behlke’s employment is secure. As for Mrs. Behlke,
the evidence before the Court demonstrates that her
income (although minimal) has, over the past 3 years,
been increasing. This increase, combined with the fact
that Ms. Behlke possesses paralegal skills which could
enable her to obtain other more highly paying
employment, leads the Court to find that these debtors do
enjoy a stable source of income.
The United States Trustee does not allege that these
debtors[’] expenses could be reduced and, upon review
of debtors’ Schedule J – Current Expenditures of
Individual Debtor(s), it does not appear that the Behlkes’
lifestyle is extravagant. However, it also does not appear
that their lifestyle is an austere one as their monthly
expenses include $1,121.00 for a mortgage payment,
$500.00 for food, $150.00 for recreation and $666.84 for
payments on two automobiles. Moreover, there is no
evidence before the Court to indicate that the Behlke[s’]
bankruptcy filing was precipitated upon a catastrophic or
an unforeseen event. Cf. In re Fessler, 168 B.R. 622
(Bankr. N.D. Ohio 1994) (loss of employment of both

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No. 02-4306 In re Behlke 15
3Debtors trace the legislative history of several bills that
preceded the adoption of § 707(b), including a Senate Judiciary
Committee report on a failed bill that would have adopted a “future
income test” for substantial abuse. The report explains that, under
such a test, if a debtor could pay no more than 25% of the debts
over a three-to-five year period, the debtor would not have
substantial debt paying ability and would be eligible for Chapter
7 relief. However, debtors concede that such a test was not
adopted in § 707(b).
breadwinners in household constitutes calamity); In re
Shepherd, 147 B.R. 422 (Bankr. N.D. Ohio 1992) (debtor
forced into bankruptcy due, in part, to psychological
trauma of catastrophic events including (1) charge of
rape against debtor’s live-in companion, (2) murder of
debtor’s brother[,] (3) conviction of murder against
debtor’s other brother and (4) death of debtor’s close
personal friend). Instead, it appears that Mr. and Mrs.
Behlke filed for bankruptcy to escape the burden of
exorbitant but self-imposed credit card debt.
(Footnote omitted.)
Debtors do not challenge the factual findings reflected in
the above analysis, but seem to argue that there was no
substantial abuse because they only have an ability to repay
14% over three years (for a total of $22,824) or 23% over five
years (for a total of $38,040). As the debtors themselves
point out, however, there is no “cutoff” or bright-line test
under which an ability to pay a certain percentage over a
three-to-five year period would or would not be substantial
abuse regardless of other circumstances.3 The fact that
bankruptcy courts have found no substantial abuse in cases
where there was an ability to repay only 5% or 11%, as well
as cases in which there was an ability to repay as much as
35% or 42% does not undermine the bankruptcy court’s
determination in this case. See In re Hampton, 147 B.R. 130
(Bankr. E.D. Ky. 1992) (5%); In re Martens, 171 B.R. 43
16 In re Behlke No. 02-4306
4The United States Trustee argues that the debtors’ ability to
pay is even higher than the bankruptcy court found because the
debtors’ tax return of $2,313 for the year 2000 represented over-
withholding and should have been divided by 12 and an additional
$192.75 included as disposable income. See, e.g., In re Hutton,
158 B.R. 648, 649 (Bankr. E.D. Ky. 1993) (monthly net pay was
arguably more because of over-withholding for income tax).
Including this amount and similar expected tax refunds would have
increased the percentage the debtors’ could repay to 18% over
three years (for a total of $29,763) or 30% over five years (for a
total of $49,605). Because we are satisfied that the bankruptcy
court did not abuse its discretion in dismissing the debtors’
Chapter 7 case for substantial abuse, we need not decide whether
there is sufficient basis in this record to find it was clear error to
have disregarded the debtors’ income tax refund in this case.
(Bankr. N.D. Ohio 1994) (11%); In re Beles, 135 B.R. 286
(Bankr. S.D. Ohio 1991) (35%); In re Butts, 148 B.R. 878
(Bankr. N.D. Ind. 1992) (42%). Ability to pay alone may be
but is not necessarily sufficient to warrant dismissal. As the
Trustee observes, other factors weighed against dismissal in
Beles and Butts despite an ability to pay.
Reviewing for abuse of discretion, we may reverse only if
we are left with a definite and firm conviction that the
bankruptcy court committed a clear error in judgment. Eagle-
Picher Indus., 285 F.3d at 529. “‘The question is not how the
reviewing court would have ruled, but rather whether a
reasonable person could agree with the bankruptcy court’s
decision; if reasonable persons could differ as to the issue,
then there is no abuse of discretion.’” Id. (citation omitted).
When the debtors’ ability to pay is taken with the other
relevant factors, we can find no abuse of discretion in the
determination that the debtors were not “needy” and the case
should be dismissed for substantial abuse.
AFFIRMED.4

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