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In re White

September 23, 1997

IN RE ROBERT D. WHITE, DOING BUSINESS AS OWLFIE'S FLOWERS AND GIFTS, DEBTOR.
ROBERT D. WHITE, DOING BUSINESS AS OWLFIE'S FLOWERS AND GIFTS, APPELLANT,
v.
VALENCIA M. BELL, APPELLEE.



Appeal from the United States Bankruptcy Court for the District of Wyoming Bankr. No. 95-10194 Chapter 13

Before Pusateri, Bohanon and Robinson, Bankruptcy Judges.

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

PUBLISH

OPINION

The debtor, Robert D. White ("White"), appeals the Bankruptcy Court's allowance of the secured and priority claim filed by his ex-wife, Valencia Bell ("Bell"). White filed a petition under Chapter 13 of the Bankruptcy Code during the pendency of the parties' divorce proceeding. The Bankruptcy Court granted Bell relief from stay "for purposes of obtaining entry of a final Arbitration Award and Decree of Divorce." The state court then ratified the Arbitration Award which adjudicated the property settlement, awarded the parties' business to White, and granted Bell a judgment of $150,000 secured by a lien on the business. The state court also ordered White to pay $19,500 in accrued monthly payments required by an interim order of the court. We affirm the Bankruptcy Court's allowance of $150,000 as a secured claim and $1,500 as a priority claim for one monthly payment that accrued prepetition, and we affirm the Bankruptcy Court's disallowance of the priority claim for $18,000 in monthly payments that accrued post-petition. *fn1

I. Procedural Status, Jurisdiction, and Scope of Review

White appeals from the Bankruptcy Court's Order on Debtor's Objection to Claim of Valencia M. Bell and Amended Order on Debtor's Objection to Claim of Valencia Bell. This Court has jurisdiction under 28 U.S.C. § 158(c), and reviews the Bankruptcy Court's conclusions of law de novo. Tulsa Energy, Inc. v. KPL Prod. Co. (In re Tulsa Energy, Inc.), 111 F.3d 88, 89 (10th Cir. 1997). The Bankruptcy Court's findings of fact will be rejected only if clearly erroneous. Id.

The notice of appeal also purports to appeal from an Order Granting Motion for Permissive Abstention and Order Granting Motion for Relief from Stay, both of which were entered on November 28, 1995. These orders were final when entered. See Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712, 1718-20 (1996) (finding that district court order remanding case to state court is final order for the purpose of appeal, or alternatively an appealable collateral order that could not be reviewed after any subsequent final judgment); Franklin Sav. Ass'n v. Office of Thrift Supervision, 31 F.3d 1020, 1022 n.3 (10th Cir. 1994) (stating that "[a]s a general rule, orders granting or denying relief from an automatic stay are appealable final orders.") The notice of appeal was filed on March 24, 1997, long after the 10-day time limit for filing an appeal. See Fed. R. Bankr. P. 8002(a). Therefore, this Court is without jurisdiction to hear an appeal from these orders.

II. Statement of Facts

In 1993, White and Bell decided to divorce. Pending a property settlement, the Wyoming state court awarded to White a florist business that he and Bell had jointly operated, and ordered White to pay Bell $1,500 per month from the business profits. White and Bell agreed to submit the property settlement to binding arbitration. On September 8, 1995, eight days after the arbitrator rendered the decision, White filed a bankruptcy petition under Chapter 13. The Bankruptcy Court granted Bell's motions for permissive abstention and relief from stay, expressly modifying the stay "for purposes of obtaining entry of a final Arbitration Award and Decree of Divorce." White did not appeal these orders. On September 18, 1996, the state court ratified the arbitration award and entered the divorce decree. White was awarded the florist business and Bell was granted a judgment of $150,000 secured by a lien on the assets of the business. White was also ordered to pay Bell $19,500, representing 13 months of $1,500 payments from the date of the arbitration award, August 31, 1995, to the date of the judgment, September 18, 1996. White did not appeal the state court judgment.

Based on the divorce orders, Bell filed a proof of claim for a total of $169,500, of which $150,000 was classified as secured with the remaining $19,500 asserted to be an unsecured priority claim pursuant to 11 U.S.C. § 507(a)(7). The Bankruptcy Court entered its Order on Debtor's Objection to Claim of Valencia M. Bell, which overruled White's objections to Bell's claim. With regard to the $19,500 priority claim, the court addressed the issue of whether or not the claim was for a property settlement or a debt in the nature of support, and held that:

the intent of the parties and the court at the time the payments were ordered was to provide her with support. Whether she became employed during the time of the arbitration is not relevant to this inquiry. When the circumstances of the parties change, the proper procedure is to seek a modification of the award. That was not done. The claim is properly entitled to priority treatment, and Mr. White's objection to the priority claim is overruled.

The Bankruptcy Court amended this order pursuant to its March 13, 1997 Amended Order on Debtor's Objection to Claim of Valencia Bell. The amended order provides that $1,500 of the claim is entitled to priority under § 507(a)(7), but that the remainder ($18,000), which represents payments due post-petition, is disallowed as a post-petition claim, unmatured at the date of filing pursuant to 11 U.S.C. § 502(b)(5), "the dischargeability of which may be determined in an appropriate forum." The amended order notes that White contends that the debt is not for maintenance or support, and states that "[t]his court disagrees for the reasons stated in the previous order. However, because the debt is a post-petition obligation for which Mr. White has yet to make any provision for payment, the nature of the claim may be determined in an enforcement action undertaken in state court." In a subsequent Order Granting Relief From Stay, * ...


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