1:25-ap-01023•Shockley (fka Davis) v. Moellmer
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UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON In re: KRISTEN P. DAVIS Debtor ) ) ) ) ) ) ) Case No. 19-13749 Chapter 13 Judge Beth A. Buchanan KRISTEN P. SHOCKLEY (fka Davis) Plaintiff v. MATTHEW A. MOELLMER Defendant ) ) ) ) ) ) ) ) ) ) ) Adv. No. 25-1023 MEMORANDUM OPINION GRANTING DEFENDANT’S MOTION TO DISMISS [Docket Number 7], WITHOUT PREJUDICE TO THE DEBTOR FILING A MOTION FOR CONTEMPT This matter is before this Court on Defendant’s Motion to Dismiss and Notice [Docket Number 7] (“Motion to Dismiss”) filed by Defendant Matthew A. Moellmer (“Mr. Moellmer”), This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio. IT IS SO ORDERED. Dated: March 30, 2026 Case 1:25-ap-01023 Doc 14 Filed 03/30/26 Entered 03/30/26 15:27:33 Desc Main Document Page 1 of 7
Plaintiff’s Response to Defendant’s Motion to Dismiss [Docket Number 12] filed by Plaintiff- Debtor Kristen P. Shockley formerly known as Kristin P. Davis (“Ms. Shockley”), and Defendant’s Reply [Docket Number 13]. On June 17, 2025, Ms. Shockley filed an adversary complaint asserting that Mr. Moellmer was in contempt of court for violating the discharge order and injunction issued in her bankruptcy case. She claims that, following her discharge, Mr. Moellmer filed documents in a domestic relations proceeding to collect a discharged pre-petition marital debt. Subsequently, Mr. Moellmer filed a motion to dismiss asserting various arguments for dismissal, including that a contempt proceeding for violation of the discharge injunction must be brought by contested matter. As set forth more fully below, this Court finds that the sole claim in Ms. Shockley’s complaint is a claim for contempt based on a violation of the discharge injunction. Such a proceeding must be brought by contested matter rather than adversary complaint. Accordingly, Mr. Moellmer’s motion to dismiss is granted, without prejudice to Ms. Shockley filing a motion for contempt in her bankruptcy case. I. BACKGROUND According to Ms. Shockley’s complaint, she and Mr. Moellmer were divorced in 2014 [Docket Number 1, ¶ 5].1 Pursuant to the parties’ Decree of Dissolution, each party was to pay one-half of all marital income tax debt owed to the Internal Revenue Service [Id., ¶ 6]. In 2019, Ms. Shockley filed a chapter 13 petition for bankruptcy relief [Id., ¶ 3]. As part of her bankruptcy filing, Ms. Shockley scheduled the Internal Revenue Service (“IRS”) as a creditor and the IRS filed a proof of claim in the bankruptcy case [Id., ¶ 7]. The IRS was paid by the Chapter 13 Trustee in accordance with the proof of claim [Id., ¶ 8]. In addition, although Ms. Shockley initially 1 The facts in the Complaint are provided as background and assumed as true solely for purposes of determining the Motion to Dismiss. Case 1:25-ap-01023 Doc 14 Filed 03/30/26 Entered 03/30/26 15:27:33 Desc Main Document Page 2 of 7
neglected to identify Mr. Moellmer as a creditor in her originally filed schedules, she filed an amendment to add Mr. Moellmer on November 12, 2019 and it is alleged that he had actual or constructive knowledge of the bankruptcy proceeding and her discharge order [Id., ¶¶ 11-12]. On November 14, 2024, Mr. Moellmer filed in the domestic relations court a Motion for Contempt for Failure to Pay Marital Debt [Id., ¶ 15]. Ms. Shockley alleges that Mr. Moellmer’s motion seeks contribution from Ms. Shockley for the debt owed to the IRS [Id., ¶ 17]. A hearing was held in the domestic relations court on Mr. Moellmer’s motion and Ms. Shockley raised the discharge injunction issue at the hearing [Id., ¶ 15]. However, Mr. Moellmer and the domestic relations court disregarded the argument, the hearing proceeded, and the Magistrate issued a decision on the contempt motion [Id., ¶¶15-16]. Ms. Shockley asserts that Mr. Moellmer’s actions in the state court amount to a lawsuit that seeks to collect a discharged debt in violation of 11 U.S.C. § 524(a) and this Court’s discharge order [Id., ¶¶ 17-19]. Ms. Shockley requests sanctions for the violation, including punitive damages and her reasonable attorney fees and costs in this adversary proceeding and in the domestic relations proceeding [Id., ¶ 23]. After the complaint was filed, Mr. Moellmer filed his Motion to Dismiss. In it, he asserts various arguments for dismissal, including that a claim for contempt based on a violation of the discharge injunction must be brought by contested matter rather than adversary complaint, that the contempt claim is barred by the Rooker-Feldman doctrine because the debt has already been determined nondischargeable in the domestic relations court, and that the debt was not discharged because it was subject to a constructive trust. Ms. Shockley responded to the Motion to Dismiss and the matter is now fully briefed. Case 1:25-ap-01023 Doc 14 Filed 03/30/26 Entered 03/30/26 15:27:33 Desc Main Document Page 3 of 7
II. LEGAL ANALYIS A. Legal Standard for Determining Motions to Dismiss Mr. Moellmer seeks dismissal of Ms. Shockley’s Complaint in this adversary proceeding for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). “Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally come in two varieties: a facial attack or a factual attack.” Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). A facial attack merely questions the sufficiency of the pleadings. Gentek, 491 F.3d at 330. When reviewing a facial attack, the court must take the allegations in the complaint as true, making the assessment similar to that under a Rule 12(b)(6) motion to dismiss for failure to state a claim. Id. On the other hand, a factual attack raises a factual controversy concerning whether subject matter jurisdiction exists. Id. When there is a factual attack on subject matter jurisdiction, there is no presumptive truthfulness applied to the complaint’s allegations. Id. Instead, the court “must weigh the conflicting evidence to arrive at the factual predicate that subject-matter does or does not exist.” Id. A court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve jurisdictional facts. Id. When considering a Rule 12(b)(6) motion to dismiss, this Court must “construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations as true, and examine whether the complaint contains ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” Ohio Pub. Employees Ret. Sys. v. Fed. Home Loan Mort. Corp., 830 F.3d 376, 382-83 (6th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the pleaded factual content allows the court to Case 1:25-ap-01023 Doc 14 Filed 03/30/26 Entered 03/30/26 15:27:33 Desc Main Document Page 4 of 7
draw the reasonable inference the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 556 (2007)). In considering a motion to dismiss under Rule 12(b)(6), a court must keep in mind that “[t]he purpose of a motion under Rule 12(b)(6) is to test the legal sufficiency of the complaint, not the probability of success on the merits.” Kennedy v. R.W.C., Inc., 359 F. Supp. 2d 636, 639 (E.D. Mich. 2005). B. The Contempt Action Must Be Brought in a Contested Matter Among his arguments for dismissal, Mr. Moellmer stresses that the adversary complaint must be dismissed pursuant to Rule 12(b)(6) because the filing of the complaint is procedurally incorrect and improperly asserts a contempt action as an impermissible private right of action. This Court agrees. The issuing of a bankruptcy discharge “operates as an injunction against the commencement or continuation of an action . . . to collect, recover or offset any such [discharged] debt as a personal liability of the debtor whether or not discharge of such debt is waived[.]” 11 U.S.C. § 524(a)(2). Significantly, the Sixth Circuit has concluded that § 524(a) does not create a private right of action. Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 422-23 (6th Cir. 2000). Instead, the provision’s purpose is to enjoin impermissible conduct and “the traditional remedy for violation of an injunction lies in contempt proceedings, not a lawsuit[.]” Id. at 421; see also Marshall v. PNC Bank, N.A. (In re Marshall), 491 B.R. 217, 234-35 (Bankr. S.D. Ohio 2012). Consequently, the proper mechanism for redressing a violation of the discharge injunction is a contempt proceeding initiated in the bankruptcy court that issued the discharge. In re Dewitt, 644 B.R. 385, 398-99 (Bankr. S.D. Ohio 2022); Marshall, 491 B.R. at 234-35 (concluding that a contempt action brought by adversary complaint should be dismissed and reasserted as a contested matter). Case 1:25-ap-01023 Doc 14 Filed 03/30/26 Entered 03/30/26 15:27:33 Desc Main Document Page 5 of 7
In this case, the sole cause of action in Ms. Shockley’s complaint is for contempt based on violation of the bankruptcy injunction provided by 11 U.S.C. § 524(a) and the discharge order entered in her bankruptcy case. As determined in the cases cited, the appropriate vehicle for raising this issue is not with the filing of an adversary complaint but, instead, with the filing of a motion for contempt in her bankruptcy case. Ms. Shockley argues that the reason she brought the contempt action via an adversary complaint was because the determination of whether Mr. Moellmer’s actions violated the discharge injunction may require a determination of whether or not the marital debt at issue was discharged. Ms. Shockley correctly ascertains that an action to determine the dischargeability of a marital debt pursuant to 11 U.S.C. § 523(a)(5) and/or (a)(15) is appropriately brought by adversary complaint. See Fed. R. Bankr. P. 7001(f). However, Ms. Shockley’s complaint includes no such cause of action. While the complaint includes statements that the marital debt that Mr. Moellmer is allegedly trying to collect is of the type that is dischargeable in a chapter 13 bankruptcy case, Ms. Shockley does not set forth a cause of action or request a court determination regarding the debt’s dischargeability. Her complaint also includes an acknowledgement that the proceeding was brought by complaint “to address any potential claim Defendant may raise concerning the dischargeability of the alleged debt” [see Docket Number 1, ¶ 22]. However, this statement, while recognizing the potential that another party might bring a cause of action to determine the dischargeability of the debt, does not, itself, form a cause of action requesting such a determination.2 2 If a determination of the dischargeability of the marital debt is a necessary prerequisite to determining contempt, this Court would entertain a joint litigation path for a future-filed motion for contempt brought in Ms. Shockley’s bankruptcy case and an adversary complaint filed by either Ms. Shockley or Mr. Moellmer to determine the dischargeability of the marital debt at issue. Case 1:25-ap-01023 Doc 14 Filed 03/30/26 Entered 03/30/26 15:27:33 Desc Main Document Page 6 of 7
Nonetheless, Ms. Shockley argues that “substance should dominate over form” in support of keeping the action pending in the adversary proceeding [Docket Number 12, p. 5]. In Marshall, this Court addressed a similar argument and concluded that the Federal Rules of Bankruptcy Procedure, specifically Rules 9014 and 9020, require that a contempt proceeding by brought by motion and not by adversary proceeding. 491 B.R. at 234-35. These rules are “there for a reason” and “[t]his Court should not be required to speculate as to the potential substantive effects of ignoring the dichotomy between a contested matter and an adversary proceeding prescribed by the Bankruptcy Rules[.]” Id. at 235. For these reasons, Mr. Moellmer’s Motion to Dismiss [Docket Number 7] is granted, without prejudice to Ms. Shockley’s filing a motion for contempt in her bankruptcy case.3 The adversary complaint will be dismissed by separate order. SO ORDERED. Distribution List: L. Joshua Davidson, Esq. Paul J. Minnillo, Esq. 3 This Court will not address the other arguments raised in Mr. Moellmer’s motion until such time as the procedural deficiencies are corrected and such issues are raised in the contested matter, should it be filed. Nonetheless, this Court asks Mr. Moellmer to reflect on his argument that Rooker-Feldman would prevent this Court from determining the dischargeability of the marital debt because the state domestic relations court already determined it. In support of this argument, Mr. Moellmer attaches a state court magistrate decision to his motion [see Docket Number 7, Ex. D]. This Court reviewed the magistrate decision and found no clear determination as to the dischargeability of the debt at issue nor an analysis of (or even mention of) the bankruptcy provisions relevant to excepting marital debts from discharge, i.e., 11 U.S.C. § 523(a)(5) and (a)(15). Instead, the magistrate’s determination appears limited to a conclusion that Ms. Shockley failed to submit evidence in support of her defense that the debt was discharged, a defense raised in response to Mr. Moellmer’s motion for contempt filed in that court. This Court would further note the limits of the Rooker-Feldman doctrine which applies narrowly to prohibit lower federal courts from conducting an appellate review of state court decisions. Wohleber v. Skurko (In re Wohleber), 596 B.R. 554, 566 (B.A.P. 6th Cir. 2019). The doctrine does not apply when a plaintiff in a federal court presents “‘some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party.’” Id. (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005)). Case 1:25-ap-01023 Doc 14 Filed 03/30/26 Entered 03/30/26 15:27:33 Desc Main Document Page 7 of 7
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