Carolyn Ann Halbrook

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 09-40910 TG
Chapter 13
CAROLYN ANN HALBROOK,
Debtor.
_____________________________/
MEMORANDUM OF DECISION
The 	above-captioned 	case 	came 	before 	the 	Court 	on 	August 	21,
2009 for a contested confirmation hearing. 	Appearances were stated
on 	the 	record. 	Having 	considered 	the 	issues 	presented 	by 	the
objection to confirmation filed by Ricardo Contreras (“Contreras”),
the debtor’s former husband, the Court concludes that the objection
has no merit and should be overruled and that the debtor’s plan (the
“Plan”) may be confirmed.
DISCUSSION
The 	above-captioned 	case 	was 	filed 	on 	February 	6, 	2009. 	The
Plan 	was 	filed 	with 	the 	petition 	as 	were 	the 	debtor’s 	Schedules 	of
Assets 	and 	Liabilities. 	Schedule 	E 	listed 	Contreras 	as 	a 	priority
creditor with a right to monthly child support payments of $750 but
with 	no 	pre-petition 	amounts 	unpaid. 	On 	June 	2, 	2009, 	the 	debtor
Signed: August 25, 2009
________________________________________
LESLIE TCHAIKOVSKY
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
August 27, 2009
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 09-40910 Doc# 26 Filed: 08/25/09 Entered: 08/27/09 12:18:16 Page 1 of 6

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filed 	an 	amended 	Schedule 	F, 	listing 	Contreras 	as 	also 	holding 	a
general, unsecured claim for $15,000 based on a sanction award.
On June 15, 2009, Contreras filed a proof of claim and objection
to 	confirmation. 	The 	proof 	of 	claim 	asserted 	a 	claim 	for 	child
support arrears in an unspecified amount and for the $15,000 sanction
award, plus interest on both amounts. 	Attached to the proof of claim
are 	the 	Findings 	and 	Order 	of 	the 	family 	law 	judge, 	filed 	on 	April
27, 2009, memorializing the sanction award.
The 	objection 	to 	confirmation 	asserted 	that, 	because 	the
sanctions were awarded post-petition, they were not properly included
in 	the 	Plan. 	It 	also 	asserted 	that 	the 	sanctions 	were
nondischargeable support obligations. 	In support of this contention,
Contreras 	cited 	In 	re 	Gionis, 	170 	B.R. 	675, 	682-84 	(Bankr. 	9 th 	Cir.
1994), aff’d 92 F.3d 1192 (9 th Cir. 1996) and In re Gibson, 103 B.R.
218, 221-22 (Bankr. 9 th Cir. 1989).
Alternatively, Contreras contended that the sanction award was
nondischargeable 	as 	a 	willful 	and 	malicious 	injury 	pursuant 	to 	11
U.S.C. § 523(a)(6). 	The objection to confirmation also asserted that
there was a child support arrearage, but, as in the proof of claim,
failed 	to 	specify 	any 	amount 	of 	arrearage. 	It 	contended 	that 	the
child support arrearages were nondischargeable and that the interest
on both the sanction award and the child support award would also be
nondischargeable.
The debtor filed a response to the objection to confirmation on
June 14, 2009. The debtor contended that there were no child support
arrearages. 	Absent 	any 	specific 	amount 	of 	arrearages 	asserted 	by
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Contreras, 	the 	Court 	will 	overrule 	Contreras’s 	objection 	to
confirmation to the extent it was based on this ground. 	This ruling
is without prejudice to Contreras’s right to prove such arrearages at
some 	time 	in 	the 	future. 	Under 	current 	law, 	the 	debtor 	may 	not
obtain 	a 	chapter 	13 	discharge 	unless 	she 	is 	current 	on 	all 	child
support obligations at the time she applies for a discharge. 	See 11
U.S.C. 	§ 	1328(a). 	This 	would 	include 	any 	interest 	accrued 	on 	the
support obligation.
With regard to the sanction award, the debtor explained that the
sanction award was originally issued pre-petition, was based on pre-
petition 	conduct, 	and 	was 	merely 	modified 	slightly 	in 	April 	2009.
The Findings and Order attached to Contreras’s proof of claim support
this contention. 	Therefore, the claim may be dealt with in the Plan.
The 	debtor 	disputed 	Contreras’s 	contention 	that 	the 	sanction
award was in the nature of support, asserting that they were clearly
intended 	to 	be 	punitive. 	The 	Findings 	and 	Order 	also 	support 	this
contention. 	She 	asserted 	that 	the 	two 	cases 	cited 	by 	Contreras 	as
holding 	that 	a 	sanction 	award 	was 	in 	the 	nature 	of 	support 	did 	not
stand for that proposition. 	The Court agrees.
In 	Gibson, 	the 	court 	was 	asked 	to 	determine 	whether 	the
attorneys’ 	fees 	incurred 	by 	the 	debtor’s 	wife 	in 	their 	dissolution
proceeding, 	which 	the 	debtor 	had 	been 	directed 	to 	pay, 	constituted
nondischargeable 	support 	or 	a 	dischargeable 	claim. 	The 	court
concluded that they were the latter, in that the award was not based
on 	the 	wife’s 	financial 	need 	but 	rather 	based 	on 	the 	debtor’s
obstructionism in the litigation. 	Gibson, 103 B.R. at 219.
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In Gionis, enormous attorneys’ fees were incurred pre-petition
by both the debtor and his former spouse in a child custody battle.
The state court ordered the debtor to pay his former spouse’s fees so
that 	she 	would 	have 	sufficient 	financial 	resources 	to 	present 	her
case. 	Gionis 	at 	679. 	In 	the 	debtor’s 	subsequent 	bankruptcy 	case,
the court found that the award was in the nature of support and was
thus nondischargeable. 	In the debtor’s case, the award was clearly
punitive and not based on Contreras’s financial need. 	Therefore, the
sanction award constitutes a dischargeable general, unsecured claim.
The 	debtor’s 	response 	did 	not 	address 	Contreras’s 	alternative
argument 	that 	the 	sanction 	award 	was 	a 	nondischargeable 	claim 	for
willful 	and 	malicious 	injury 	pursuant 	to 	11 	U.S.C. 	§ 	523(a)(6).
However, the Court finds against Contreras on this basis as well. 	A
determination 	of 	nondischargeability 	based 	on 	§ 	523(a)(6) 	must 	be
sought by filing an adversary proceeding which must be filed within
60 days after the first date set for the meeting of creditors. 	See
Fed. R. Bankr. Proc. 4004(c). 	No such adversary proceeding has been
filed, and the time for doing so has expired.
CONCLUSION
The 	objection 	to 	confirmation 	filed 	by 	Contreras 	will 	be
overruled, and the Plan may be confirmed. 	A claim for child support
arrearages 	is 	clearly 	a 	priority 	claim 	and 	is 	nondischargeable,
including any interest accrued on such amounts. 	However, Contreras
has 	failed 	to 	establish 	that 	there 	are 	any 	such 	arrearages. 	This
ruling is without prejudice to his right to prove such amounts in the
future. 	Contreras’s 	claim 	for 	sanctions 	in 	the 	amount 	of 	$15,000
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constitutes a pre-petition, dischargeable, general unsecured claim.
It is not in the nature of support and Contreras has failed to file
an adversary proceeding within the required time to establish that it
constitutes 	a 	willful 	and 	malicious 	injury. 	No 	post-petition
interest may accrue on an unsecured pre-petition dischargeable claim.
See 	11 	U.S.C. 	§ 	502(b)(2). 	The 	debtor’s 	counsel 	is 	directed 	to
submit a proposed form of order confirming the Plan.
END OF DOCUMENT
Case: 09-40910 Doc# 26 Filed: 08/25/09 Entered: 08/27/09 12:18:16 Page 5 of 6

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COURT SERVICE LIST
Sarah Lampi Little
Law Offices of Sarah Lampi Little
1276 A St.
Hayward, CA 94541
Carolyn Ann Halbrook
4275 Pleasanton Ave.
Pleasanton, CA 94566
Martha G. Bronitsky
P.O. Box 5004
Hayward, CA 94540-5004
Ricardo Contreras
1612 Ramblewood Way
Pleasanton, CA 94566f
Case: 09-40910 Doc# 26 Filed: 08/25/09 Entered: 08/27/09 12:18:16 Page 6 of 6