Robert McBriarty

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1The Debtor’s marital relationship with his former spouse
was severed before he filed for bankruptcy but the marital
estate has still not been divided. Although the Debtor
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re No. 05-40485 TG
Chapter 13
ROBERT McBRIARTY,
Debtor.
_____________________________/
MEMORANDUM RE OBJECTION TO HOMESTEAD EXEMPTION
Creditors Terry McBriarty and Janice With (“Creditors”) and
Martha G. Bronitsky (the “Trustee”), the Chapter 13 Trustee,
object to the above-captioned debtor’s (the “Debtor”) claim of a
$150,000 homestead exemption in real property located at 255
Camino Pablo, Orinda (the “House”). For the reasons stated below,
the objections will be sustained.
The Debtor filed a chapter 13 bankruptcy petition on February
4, 2005. In Schedule C of his bankruptcy schedules, he claimed a
$150,000 homestead exemption in the House, which he valued at
$600,000, citing Cal. Civ. Proc. §§ 704.710-704.880.1 He disclosed
Signed: August 08, 2005
________________________________________
LESLIE TCHAIKOVSKY
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
August 08, 2005
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 05-40485 Doc# 21 Filed: 08/08/05 Entered: 08/08/05 14:39:20 Page 1 of 5

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apparently executed a deed of his interest in the House to his
former spouse before filing his bankruptcy petition, it appears
to be undisputed that he still has an ownership interest in the
House.
2
that he no longer lived in the House which is currently occupied
by his former spouse and minor son. He based his claim to a
homestead exemption on Section 704.710(c). Section 704.710(c)
defines “homestead” as:
...the principal dwelling (1) in which the
judgment debtor or the judgment debtor’s
spouse resided on the date the judgment
creditor’s lien attached to the dwelling, and
in which the judgment debtor or the judgment
debtor’s spouse resided continuously
thereafter until the date of the court
determination that the dwelling is a
homestead.
He contended that, because the marital estate had not yet been
divided, his former spouse still qualified as his “spouse” for
purposes of Cal. Civ. Proc. Code § 704.710(c). In support of this
position, he cited In re Miller, 167 B.R. 202 (Bankr. C.D.Cal.
1994). Miller did not deal with an objection to a debtor’s claim
of a homestead exemption. Rather, it dealt with whether the
nonfiling former spouse’s share of the community property was
property of the estate pursuant to 11 U.S.C. § 541(a)(2). In
Miller, as here, the marital status had been severed but the
marital estate had not been divided. Section 541 provides that
the bankruptcy estate includes “[a]ll interests of the debtor and
the debtor’s spouse in community property as of the commencement
of the case...” 11 U.S.C. § 541(a)(2). The debtor contended that
her former spouse qualified as her “spouse” within the meaning of
Case: 05-40485 Doc# 21 Filed: 08/08/05 Entered: 08/08/05 14:39:20 Page 2 of 5

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§ 541(a)(2). The Miller court agreed, declining to follow a prior
bankruptcy court decision on similar facts. See In re LaNess, 159
B.R. 916 (Bankr. C.D. Cal. 1993); see also In re Mantle, 153 F.3d
1082, 1085 (9th Cir. 1998)(citing Miller with approval).
In support of their objection, Creditors cite In re Lawley,
130 B.R. 568 (Bankr. E.D. Cal. 1991), which did involve an
objection to a claim of a homestead exemption. In Lawley, there
was no dispute that the debtor was entitled to claim a homestead
exemption. The debtor had been awarded the family home as his
sole and separate property. The issue was whether he was entitled
to the enhanced amount of exemption available to a “member of a
family unit” residing in the house. The Lawley court concluded
that he was not. The debtor’s former spouse had primary physical
custody of the couple’s minor children. The debtor had only joint
legal custody and visitation rights. Thus, the Court concluded
that the debtor was limited to the exemption amount available to
a single person.
The Court finds neither case determinative of the issue
presented here. The question here is neither whether a former
spouse qualifies as a “spouse” for purposes of 11 U.S.C. §
541(b)(2) nor the amount of the homestead exemption to which a
debtor who lives in the homestead is entitled under state law.
The question is whether a former spouse qualifies as a “spouse”
for purposes of Cal. Civ. Proc. Code § 704.710(c). The Court
concludes that she does not. It bases this conclusion on Cal.
Civ. Proc. Code § 704.710(d) which provides that “spouse” does not
Case: 05-40485 Doc# 21 Filed: 08/08/05 Entered: 08/08/05 14:39:20 Page 3 of 5

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4
include one to whom the debtor is still married if an order of
legal separation has been entered. Given this provision, it would
make no sense to conclude that “spouse” includes one to whom the
debtor is no longer legally married.
CONCLUSION
The Creditors’ and Trustee’s objections to the Debtor’s claim
of a homestead exemption are sustained. Counsel for the Creditors
are directed to submit a proposed form of order in accordance with
this decision.
END OF DOCUMENT
Case: 05-40485 Doc# 21 Filed: 08/08/05 Entered: 08/08/05 14:39:20 Page 4 of 5

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COURT SERVICE LIST
Curt F. Hennecke
Law Offices of Younger and Hennecke
428 J St., #360
Sacramento, CA 95814
Martha G. Bronitsky
Kurt V. Jaenike
P.O. Box 5004
Hayward, CA 94540
Marlene G. Weinstein
Law Office of Marlene G. Weinstein
1111 Civic Drive, Ste. 380
Walnut Creek, CA 94596
Case: 05-40485 Doc# 21 Filed: 08/08/05 Entered: 08/08/05 14:39:20 Page 5 of 5