Tanya Rene Johnson

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
IN RE:
TANYA RENE JOHNSON,
DEBTOR.
CASE NO. 10-07244-8-JRL
CHAPTER 13
ORDER
This matter came before the court on the debtor’s petition requesting direct appeal to the
circuit court.
The debtor filed a notice of appeal of this court’s order issued on July 21, 2011, denying
confirmation of her chapter 13 plan. The court determined the appropriate method of calculating
the debtor’s household size needed to ascertain her disposable income on Official Form 22C.
Courts, in this circuit and elsewhere, have used any of three methods to calculate the number of
individuals residing in the debtor’s household. The “Heads on Beds” approach includes any
person occupying the home in the debtor’s household size. The second approach uses the
Internal Revenue Service’s definition of “household” and only includes those individuals who
could be claimed as dependents on the debtor’s tax return. The third approach is the “economic
unit approach,” which counts only those individuals that act as a single economic unit in the total
SO ORDERED.
SIGNED this 08 day of August, 2011.
________________________________________
J. Rich Leonard
United States Bankruptcy Judge
____________________________________________________________
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household size. The debtor’s economic unit includes those who are dependent on the debtor,
those who support the debtor, and those who have commingled income and expenses with the
debtor. See In re Morrison, 443 B.R. 378, 386 (Bankr. M.D.N.C. 2011).
Pursuant to Federal Rule of Bankruptcy Procedure 8001(f), after request, the bankruptcy
court may certify an appeal to proceed directly to the court of appeals so long as a circumstance
specified in 28 U.S.C. § 158(d)(2)(A)(i)-(iii) exists. Direct appeals to the circuit court are
appropriate where (i) a question of law to which there is no controlling decision of the circuit is
involved; (ii) conflicting decisions within the circuit exist and a resolution by the circuit is
needed; or (iii) an immediate appeal may materially advance the progress of the case and the
court of appeals authorizes the direct appeal. See 28 U.S.C. § 158(d)(2)(A)(i)-(iii).
The court certifies this direct appeal to the Fourth Circuit because there is no controlling
decision by the circuit regarding the appropriate method of calculating a debtor’s household size.
28 U.S.C. § 158(d)(2)(A)(i). The United States Bankruptcy Courts for the Western District of
North Carolina, Middle District of North Carolina, and Eastern District of Virginia have dealt
with this issue and examined the three methods of calculation in the last three years. See In re
Robinson, No. 10-34516-KRH, 2011 WL 864937 (Bankr. E.D. Va. Mar. 10, 2011); In re
Morrison, 443 B.R. 378 (Bankr. M.D.N.C. 2011); In re Herbert, 405 B.R. 165 (Bankr. W.D.N.C.
2008). The three courts adopted the economic unit approach, as did this court in its denial of
confirmation. Only the decision in Robinson dealt with similar facts to the debtor’s in which
children, who lived with the debtor pursuant to a joint custody obligation, were counted as
fractional members of the household based on the number of days per week they resided with the
debtor. The issue of calculating household size is an important one and will continue to come
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before bankruptcy courts given the prevalence of blended families and the variety of family
structures that exist today.
Based on the foregoing, the court certifies the debtor’s direct appeal to the Fourth Circuit
Court of Appeals.
END OF DOCUMENT
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