Al-Hamdani v. Al-Akwaa (In re Al-Akwaa)

585 B.R. 82

IN RE: Loaai AL–AKWAA, Debtor.

Sama'a Al–Hamdani, Plaintiff,

v.Loaai Al–Akwaa, Defendant.

Case No. 17–10892 (SMB)

Adv. No. 17–01092 (SMB)

United States Bankruptcy Court, S.D. New York.

Signed May 30, 2018

QUINN EMANUEL URQUHART & SULLIVAN, Counsel for Plaintiff, 51 Madison Avenue, 22 Floor, New York, New York 10010, Jordan Harap, Esq., Of Counsel

LAW OFFICE OF JULIO E. PORTILLA, P.C., Counsel for Defendant, 555 Fifth Avenue, 17th Floor, New York, New York 10017, Julio E. Portilla, Esq., Of Counsel

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS

STUART M. BERNSTEIN, United States Bankruptcy Judge:

The parties participated in an Islamic marriage ceremony as part of which the Defendant agreed to pay a "postponed" $30,000.00 dowry (the "Dowry"). They subsequently divorced, and the divorce court directed the Defendant to pay the Dowry. After the Defendant filed for bankruptcy, his ex-spouse commenced this adversary proceeding to declare the Dowry non-dischargeable, and has now moved for judgment on the pleadings seeking a declaration that the Dowry is non-dischargeable under 11 U.S.C. § 523(a)(15). (See Motion for Judgment on the Pleadings , dated March 22, 2018 ("Motion ") (ECF Doc. # 15).) The Motion is denied for the reasons that follow.

BACKGROUND

A. The Parties' Marriage and Divorce

Plaintiff Sama'a Al–Hamdani and Defendant Loaai Al–Akwaa were lawfully married in Virginia, apparently in a civil ceremony, on August 5, 2010. (See Findings of Fact, Conclusions of Law and Judgment of Absolute Divorce , dated October 19, 2015 ("Divorce Decree "), ¶ 12 (ECF Doc. # 1).)¹ On February 5, 2013, the Plaintiff and Defendant participated in an Islamic marriage ceremony in the District of Columbia. (Id. ¶ 13.) The Certificate of Marriage issued by the Islamic Center of Washington, D.C. included the Dowry, no portion of which was then payable and all of which was "postponed." (Certificate of Marriage , dated Feb. 5, 2010, (ECF Doc. # 19–1).)² The Certificate of Marriage was signed by both Plaintiff and Defendant, their witnesses, and the Director of the Islamic Center. (Id. )

The Plaintiff and Defendant separated approximately five days later, (Divorce Decree ¶ 15), and the Plaintiff filed a Complaint for Absolute Divorce in the Superior Court of the District of Columbia Family Court (the "DC Court") on July 6, 2015.

(Id. ¶ 2.) The Defendant filed a Contested Answer and Counterclaim on August 12, 2015, but failed to appear before the DC Court, (id. ¶ 4), and a default was entered against him. (Id. ¶ 5.) The DC Court scheduled a default hearing for September 16, 2015, directed both parties to appear and sent each a notice warning that "[i]n the absence of the Defendant or Respondent, a judgment or order may be entered against the Defendant or Respondent." (Id. ¶ 6.) The Defendant sought a continuance in order to consult with an attorney, (id. ¶ 7), the DC Court granted the continuance and rescheduled the hearing for October 9, 2015, (id. ¶ 8), but the Defendant again failed to appear. (Id. ¶ 10.)

The DC Court issued a Divorce Decree on October 9, 2015. The Divorce Decree contained certain findings of fact, including that the parties had agreed upon the Dowry, (id. ¶ 13), no part had been advanced, and the entire amount had been postponed at the time of the Islamic marriage ceremony. (Id. ¶ 14.) The Divorce Decree did not divide any property or debts between the parties, (Divorce Decree ¶ 17), but the Plaintiff requested payment of the Dowry. (Id. ¶ 18.) Finally, there was no request for alimony. (Id. ¶ 20.)

In addition to granting a divorce, the DC Court held that the "dowry (sadaq) complies with principles of contract law and is therefore an enforceable contract between the parties." (Id. at 4 (citing Akileh v. Elchahal , 666 So.2d 246, 248 (Fla. Dist. Ct. App. 1996) ; Schwartz v. Schwartz , 153 Misc.2d 789, 583 N.Y.S.2d 716, 718 (Sup. Ct. 1992) ; Aziz v. Aziz , 127 Misc.2d 1013, 488 N.Y.S.2d 123 (N.Y.Sup. Ct. 1985) ).) The DC Court awarded Plaintiff a Judgment of Absolute Divorce, and ordered that "Defendant shall pay $30,000.00 to Plaintiff for the dowry (sadaq) agreed upon on February 5, 2013." (Id. at 4.)

The Plaintiff subsequently filed a motion for contempt in the DC Court apparently based on the Defendant's failure to pay the Dowry, the only obligation imposed on the Defendant under the Divorce Decree . On April 4, 2017, however, the Defendant filed a chapter 7 petition in this Court, and the bankruptcy was pending on the April 11, 2017 return date of the Plaintiff's contempt motion.³

Both parties appeared on the return date, (Order , dated Apr. 11, 2017 ("Contempt Order "), at 1 (ECF Doc. # 1) ),⁴ and the Defendant provided proof of his pending bankruptcy to the DC Court. (Id. ) As a result, the DC Court denied the Plaintiff's motion for contempt without prejudice, but took testimony and entered judgment for the Plaintiff in the amount of $30,000 against the Defendant pursuant to the terms of the Divorce Decree .⁵ (Id. )

B. This Adversary Proceeding

On June 27, 2017, the Plaintiff submitted a pro se letter to this Court requesting the denial of the discharge of the debt based on the Dowry, arguing that it fell within the exception to discharge under 11 U.S.C. § 523(a)(5) and (a)(15). The letter attached the Divorce Decree and the Contempt Order which have already been described. The Court treated the letter and its attachments as the Complaint commencing this adversary proceeding.

The Defendant filed an Answer , dated Aug. 15, 2017 (ECF Doc. # 3), in which he admitted that the parties had entered into the Dowry, and the DC Court had held that the Dowry was an enforceable contract. (Id. ¶ 3.) After counsel appeared for the Plaintiff, she filed the Motion. She argued that the Dowry was not dischargeable pursuant to Bankruptcy Code § 523(a)(15) because it was incurred "in connection with a... divorce decree," (Memorandum of Law in Support Of Motion of Plaintiff Sama'a Al-Hamdani for Judgment on the Pleadings Pursuant to Fed R. Bankr. P. 7012 and Fed. R. Civ. P. 12(c) , dated Mar. 22, 2018 ("Plaintiff Memo "), at 5–6 (ECF Doc. # 16) ), or because it is a contractual obligation "incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement." (Id. at 6–10.)

In response, the Defendant initially argued that the Dowry was not a "domestic support obligation," and hence, was dischargeable despite 11 U.S.C. § 523(a)(5). (Debtor's Opposition to Plaintiff's Motion for Judgment on the Pleadings , dated April 19, 2018 ("Response "), at ¶¶ 17–19 (ECF Doc. # 19).) The Plaintiff did not, however, make this argument in the Motion , limiting her Motion to non-dischargeability under 11 U.S.C. § 523(a)(15). As to that contention, the Defendant maintained that the Dowry "was not incurred 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," (id. at ¶ 20), and the parties' contract was not a prenuptial agreement. (Id. at ¶¶ 21–30.) Finally, the Defendant contended that the Dowry was too vague and uncertain to be enforceable as either a premarital or post-marital agreement. (Id. ¶¶ 31–34.) However, both parties had appeared at the contempt proceeding which resulted in the issuance of the Contempt Order and the entry of judgment, and the Defendant has not explained the basis on which he can collaterally attack that judgment or the enforceability of the Dowry into which it merged.

DISCUSSION

In deciding a motion under Rule 12(c), a court applies the same standards that govern a motion to dismiss for failure to state a claim under Rule 12(b)(6). L–7 Designs, Inc. v. Old Navy, LLC , 647 F.3d 419, 429 (2d Cir. 2011) ; Bank of N.Y. v. First Millennium , Inc. , 607 F.3d 905, 922 (2d Cir. 2010) ; Sheppard v. Beerman , 18 F.3d 147, 150 (2d Cir. 1994). Accordingly, the court must accept all factual allegations by the non-moving party as true, and draw all reasonable inferences in his favor. Hayden v. Paterson , 594 F.3d 150, 160 (2d Cir. 2010) ; Life Product Clearing, LLC v. Angel , 530 F.Supp.2d 646, 651 (S.D.N.Y. 2008). In addition, as with Rule 12(b)(6), "a court may consider the pleadings and attached exhibits, statements, or documents incorporated by reference, and matters subject to judicial notice." Life Product Clearing, 530 F.Supp.2d at 652.

Bankruptcy Code § 523(a)(15) excepts from discharge a debt

to a spouse, former spouse, or child of the debtor and 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 or a determination made in accordance with state or territorial law by a governmental unit.

The Plaintiff argues that her Dowry is a non-dischargeable debt because the Defendant was directed to pay it in the Divorce Decree and Contempt Order issued by the DC Court, and was, therefore, "incurred in the course of a divorce" and "in connection with a ... divorce decree or other order of a court of record." The Bankruptcy Code does not define when a debt is "incurred," Gibson v. Gibson (In re Gibson ), 219 B.R. 195, 202 (6th Cir. BAP 1998) ; In re Chaudry , 569 B.R. 372, 375 (Bankr. D.N.J. 2017), but the term means "to suffer or bring on oneself (a liability or expense)." BLACK'S LAW DICTIONARY 885 (10th ed. 2014); accord WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (UNABRIDGED) 1146 (1981) ("become liable or subject to: bring down upon oneself."). The Bankruptcy Code defines a "debt" as a liability on a "claim," 11 U.S.C. § 101(12), and a "claim" is a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured." 11 U.S.C. 101(5)(A).

Here, the Defendant "incurred" a "postponed" obligation to...