Stern v. Stern et al

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UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
EASTERN DIVISION
________________________________
In re:
SCOTT LEE STERN, 	Chapter 7
Case No. 05-43937
Debtor
________________________________
SCOTT LEE STERN,
Plaintiff
v. 	Adversary Proceeding
Case No. 06-4223
MARYJANE STERN, et al.
Defendants
_________________________________
MEMORANDUM OF DECISION
This matter came before the Court for hearing on May 17, 2007 upon the motions to
dismiss filed by the following defendants: (1) MaryJane Stern; (2) Massachusetts Department
of Revenue-Child Support Enforcement Division (hereinafter “MDOR”); (3) Northwestern
District Attorney’s Office; and (4) Hampshire Probate and Family Court, including the
individual judges and officers associated with that court and named in this proceeding 1
(collectively “the Defendants”)2 [Docket # 14, 17, 20, and 25]. For the reasons set forth
herein, the motions to dismiss are GRANTED and the objection of the plaintiff is
OVERRULED.
1 These defendants include: (a) Hampshire Probate and Family Court; (b) Sean Dunphy, Chief Justice of
the Probate and Family Court; (c) Geoffrey Wilson, First Justice of the Franklin Probate and Family Court;
(d) William O’Riordan, Chief Probation Officer of the Hampshire Probate and Family Court; (e) Kevin
Macdonald, Assistant Probation Officer; (f) Pam Eldridge, Assistant Probation Officer; and (g) David
Sullivan, Registrar of Probate, Hampshire Probate and Family Court.
2 The other defendants named in this adversary proceeding, but not relevant to this Order include: Aid to
Families with Dependent Children; Andrus & Willie, P.C.; Erin C. Willie; Estate of Samuel Marsella; and
Elizabeth Scheibel, District Attorney.
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Scott Lee Stern (hereinafter “Debtor”) filed this adversary proceeding seeking to
discharge his child support obligations under 11 U.S.C. § 523(a)(15) naming numerous
parties as defendants. The Debtor claims that the Defendants conspired to deprive him of
certain civil and parental rights in his divorce proceedings in the Hampshire Probate and
Family Court, and because of that, his child support obligations should be dischargeable.3
He also argues that his child support obligations should be dischargeable because he cannot
afford to pay them on his limited disability income. After filing his complaint, the Debtor
sought a stay of certain proceedings in the Hampshire Probate and Family Court, which
motion was denied with an order that stated “CHILD S UPPORT OBLIGATIONS ARE P ER S E
NOT DISCHARGEABLE . S EE 11 U.S.C. § 523(A )(5).”4
The Defendants’ motions to dismiss allege the same grounds for dismissal and are
consolidated for purposes of this discussion. The Defendants seek dismissal under: (1) Fed.
R. Civ. P. 12(b)(6) applicable through Fed. R. Bankr. P. 7012 arguing that the Debtor’s child
support obligations are non-dischargeable under Section 523(a)(5); (2) Fed. R. Civ. P. 10(b)
applicable through Fed. R. Bankr. P. 7010(b) arguing that the Debtor failed to separately
number the paragraphs in his complaint or limit them to a single set of circumstances as well
as having other procedural deficiencies; and (3) U.S. C ONST. amend. XI arguing that
sovereign immunity, or a similar doctrine such as judicial, quasi-judicial, or prosecutorial
immunity, protects the state defendants. The Debtor filed an opposition to the motions to
dismiss, in which he also sought appointment of counsel under the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 et seq. (hereinafter “ADA”).
The Defendants seek dismissal under Rule 12(b)(6) arguing that child support
obligations are non-dischargeable under Section 523(a)(5) and that therefore, the Debtor
fails to state a claim upon which relief can be granted. Section 523(a)(5), before amendment
by the Bankruptcy Abuse Prevention and Consumer Protection Act (hereinafter
“BAPCPA”), 5 stated:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not
discharge an individual debtor from any debt—
3 In his objection and at the hearing, the Debtor argued primarily that the Defendants prevented him from
obtaining a downward modification of his child support obligations.
4 The order was entered on November 6, 2006 by Judge Henry J. Boroff, who recused himself from this
adversary proceeding and the Debtor’s bankruptcy #05-43937 on March 13, 2007.
5 The Debtor filed his petition on June 8, 2005 before the effective date of BAPCPA on October 17, 2005
so the former section 523 of the Bankruptcy Code applies.
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(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or
support of such spouse or child, in connection with a separation agreement, divorce
decree or other order of a court of record, determination made in accordance with State
or territorial law by a governmental unit, or property settlement agreement, but not to the
extent that--
(A) such debt is assigned to another entity, voluntarily, by operation of law, or
otherwise (other than debts assigned pursuant to section 408(a)(3) of the Social
Security Act, or any such debt which has been assigned to the Federal
Government or to a State or any political subdivision of such State); or
(B) such debt includes a liability designated as alimony, maintenance, or
support, unless such liability is actually in the nature of alimony, maintenance,
or support;
Pre-BAPCPA 11 U.S.C. § 523(a)(5). 6
Judge Boroff already decided that the Debtor’s child support obligations were per se non-
dischargeable under Section 523(a)(5), which introduces principles of res judicata, or more
specifically, claim preclusion to this Court’s analysis. Claim preclusion “generally refers to
the effect of a prior judgment in foreclosing successive litigation on the very same claim…”
In re Burke, 354 B.R. 579, 581 (Bankr. D. Mass. 2006) (citing New Hampshire v. Maine, 532 U.S.
742, 748, 121 S.Ct. 1808, 149 L.Ed.2d. 968 (2001)). “Claim preclusion, unlike issue
preclusion, does not require the claim to have been actually litigated. That the party against
whom claim preclusion is invoked had the opportunity to participate in the action is
sufficient.” Burke, 354 B.R. at 583 n. 4 (emphasis in original). Although the Court finds that
Judge Boroff’s order has a preclusive effect on the Debtor’s claim against the Defendants,
and would dismiss the complaint on that basis alone, the Court will continue with its analysis
because of the Debtor’s pro se status.
The Debtor argues that notwithstanding Section 523(a)(5), his child support
obligations should be dischargeable under the former exceptions in Section 523(a)(15),
which stated:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not
discharge an individual debtor from any debt—
(15)not of the kind described in paragraph (5) that is incurred by the debtor in the course
of a divorce or separation or in connection with a separation agreement, divorce decree
or other order of a court of record, a determintation made in accordance with State or
territorial law by a government unit; unless—
(A) the debtor does not have the ability to pay such debt from income or
property of the debtor not reasonably necessary to be expended for the
6 BAPCPA eliminated the entire statutory text of Section 523(a)(5) and replaced it with the term “domestic
support obligation,” which is defined in 11 U.S.C. § 101(14A).
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maintenance or support of the debtor or a dependent of the debtor and, if the
debtor is engaged in a business, for the payment of expenditures necessary for
the continuation, preservation, and operation of such business; or
(B) discharging such debt would result in a benefit to the debtor that outweighs
the detrimental consequences to a spouse, former spouse, or child of the debtor;
Pre-BAPCPA 11 U.S.C. § 523(a)(15) (emphasis added). 7
The Debtor claims that he lacks the ability to pay his child support obligations on his limited
disability income. Even if the Court were to accept this as true, his child support obligations
are not dischargeable under either of the former exceptions found in Section 523(a)(15)(A)
or (B). Section 523(a)(15) only applies to debts (such as property settlements) that arise
during the course of divorce or separation, but are not covered by Section 523(a)(5) (or in
other words, are not “domestic support obligations” as they are now known.) 4 COLLIER
ON B ANKRUPTCY ¶ 523.21, p. 523-118 (15th ed). The Debtor’s child support obligations
clearly fall within Section 523(a)(5) (and would now be considered “domestic support
obligations”) because, in the language of the pre-BAPCPA statute, they are a “debt…to
a…child of the debtor, for…support of such…child, in connection with a separation
agreement, divorce decree, or other order of a court of record.” Pre-BAPCPA 11 U.S.C. §
523(a)(5). The Debtor’s reliance on Section 523(a)(15) is misplaced; his child support
obligations are non-dischargeable under the plain language of the former Section 523(a)(5)
(as already ordered by Judge Boroff), and therefore, the Defendants’ motions to dismiss are
GRANTED under Rule 12(b)(6) as there is no set of facts which would entitle the Debtor
to relief from this debt.
Moreover, most, although not all, of the Defendants are protected from liability in
this adversary proceeding under some form of immunity, including judicial, quasi-judicial,
prosecutorial, and possibly sovereign immunity.
The Defendants also raised procedural grounds for dismissal, particularly Rule 10(b),
for the Debtor’s failure to separately number the paragraphs in his complaint. Given that
the Debtor is pro se and generally would be given the opportunity to amend his pleadings
were the case not being dismissed on substantive grounds, however, the Court does not rest
its holding on this basis.
Lastly, the Debtor asked the Court to appoint counsel because of his documented
depression and bi-polar disorder and cited the ADA as a possible source of the Court’s
7 BAPCPA eliminated the exceptions found in Section 523(a)(15)(A) and (B).
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authority to do this. This is an issue of first impression and the Court is not aware of any
bankruptcy courts that have appointed counsel under the ADA. “An ADA plaintiff has no
absolute right to an appointed counsel. Rather the decision of whether to provide counsel
lies solely within the discretion of the court.” Pacheco v. Bedford, 787 A.2d 1210, 1212 (R.I.
2002) (citing Johnson v. City of Port Arthur, 892 F. Supp. 835, 839 (E.D. Tex. 1995)). In
exercising this discretion, courts should consider the following factors: (1) whether the
complainant has the financial ability to retain counsel; (2) whether the complainant has made
a diligent effort to retain counsel; (3) whether the complainant has a meritorious claim; and
(4) whether the complainant ‘is capable of representing himself’ or herself. Pacheco, 787 A.2d
at 1213 (citing Tyson v. Pitt County Gov’t, 919 F. Supp. 205, 207 (E.D.N.C. 1996)). The Court
finds that the Debtor fails to meet this standard. Even accepting the Debtor’s assertions
about his personal finances as true and viewing the Debtor’s condition at the May 17, 2007
hearing, both of which would support findings in his favor on the first and fourth factors,
the Court has no information about the Debtor’s efforts to retain counsel and more
importantly, has already determined in its discussion above that the Debtor lacks a
meritorious claim. Therefore, the Court finds that the Debtor is not entitled to appointed
counsel.
For the reasons set forth herein, the Defendants’ motions to dismiss [Docket # 14,
17, 20, and 25] are GRANTED.
A separate order will issue.
Dated: May 25, 2007 	By the Court,
Joel B. Rosenthal
United States Bankruptcy Judge
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