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In re Bechtoldt

July 18, 1997

IN RE RICHARD JOSEPH BECHTOLDT, DOING BUSINESS AS RICHARD BECHTOLDT, DEBTOR.
SHARON A. DUNIVENT, TRUSTEE, APPELLANT,
v.
RICHARD JOSEPH BECHTOLDT, APPELLEE.



Appeal from the United States Bankruptcy Court for the District of Wyoming Bankr. No. 96-21017 Chapter 13

Before Bohanon, Cornish, and Matheson, Bankruptcy Judges.

The opinion of the court was delivered by: Matheson, Bankruptcy Judge

PUBLISH

OPINION

This Panel has before it for review the December 11, 1996, order of the United States Bankruptcy Court for the District of Wyoming denying the Chapter 13 Trustee's objection to Debtor's claim of exemption in painting equipment as tools of his trade. For the reasons set forth below, we conclude that the decision of the bankruptcy court should be affirmed. *fn1

JURISDICTION AND STANDARD OF REVIEW

A Bankruptcy Appellate Panel, with the consent of the parties, has jurisdiction to hear appeals from final judgments, orders, and decrees of bankruptcy judges within this circuit. 28 U.S.C. §158(a), (b)(1), (c)(1). As neither party has opted to have this appeal heard by the District Court for the District of Wyoming, they are deemed to have consented to jurisdiction. 10th Cir. BAP L.R. 8001-1(c).

The Bankruptcy Appellate Panel may affirm, modify or reverse a bankruptcy court's judgment, order, or decree, or remand with instructions for further proceedings. Findings of fact shall not be set aside unless clearly erroneous. Fed. R. Bankr. P. 8013; see First Bank v. Reid (In re Reid), 757 F.2d 230, 233-4 (10th Cir. 1985). The clearly erroneous standard does not apply to the bankruptcy court's conclusions of law. Conclusions of law are reviewed de novo. Pierce v. Underwood, 487 U.S. 552, 558 (1988).

FACTS

The facts in this case are not in dispute and they were presented to the bankruptcy judge on that basis. The bankruptcy court heard the testimony of Richard Joseph Bechtoldt, the Debtor ("Debtor"), but only to clarify certain evidence. The Chapter 13 Trustee, Sharon Dunivent ("Trustee"), did not cross-examine the Debtor. The only evidence offered by the Trustee was the Debtor's own summary of his income derived from painting.

The Debtor, at the time of the filing of the petition, was employed on a full-time basis as a plumber. Prior to the filing, Debtor had been self employed as a painter which sustained him exclusively up until sometime in 1996.

Thereafter, Debtor continued painting on a part-time basis to supplement his income. When the Debtor filed his petition, he claimed as exempt his painting tools under Wyo. Stat. Ann. § 1-20-106(b) as tools of his trade. He did not claim an exemption for any property related to his employment as a plumber.

The Trustee objected to Debtor's claim of exemption in the painting equipment because painting is not his primary occupation. The bankruptcy court denied the Trustee's objection, finding that the Debtor had claimed the exemption only with respect to the one occupation and did not attempt to split it between two occupations. Transcript 14:16-25. The written order elaborated that the Debtor had not claimed his plumbing tools as exempt and, therefore, ...


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