Tackett v. McCracken (In re David Wayne Mccracken XXX-Xx-5435)

IN RE: DAVID WAYNE MCCRACKEN xxx-xx-5435 Debtor

DIANNA TACKETT Plaintiff v. DAVID WAYNE MCCRACKEN Defendant

Case No. 03-44802

Adversary No. 14-4100

UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

Filed: March 25, 2015

March 24, 2015

Chapter 7

MEMORANDUM OF DECISION¹

ON THIS DATE the Court considered the Motion for Summary Judgment (the "Motion") filed by the Plaintiff, Dianna Tackett (the "Plaintiff"), in the above-referenced adversary proceeding, the response in opposition filed by the Defendant, David Wayne McCracken (the "Defendant" or "Debtor"), and the Plaintiff's Reply. The Plaintiff's Motion seeks a summary judgment on the determination of whether: (1) a judgment debt owed to her by the Debtor is excepted from discharge pursuant to 11 U.S.C. §523(a)(5); and (2) she is entitled to an award of attorney's fees and expenses incurred in bringingthis adversary proceeding. Upon due consideration of the pleadings, the proper summary judgment evidence submitted by the parties, and the relevant legal authorities, the Court concludes that the Plaintiff has demonstrated that there is no genuine issue as to any material fact and that she is entitled to judgment as a matter of law that the debt owed to her by the Debtor-Defendant, arising from the order issued by the 380th Judicial District Court in and for Collin County, Texas, is nondischargeable under §523(a)(5) of the Bankruptcy Code. The Plaintiff's request for an award of attorney's fees incurred in this adversary proceeding shall be denied. Thus, the Plaintiff's Motion for Summary Judgment shall be granted in part and denied in part.²

Factual and Procedural Background³

The Plaintiff, Dianna Tackett (formerly Dianna McCracken), and the Debtor-Defendant, David Wayne McCracken, were divorced by entry of an Agreed Final Decree of Divorce on November 29, 2000 (the "Divorce Decree"), issued by the 380th Judicial District Court in and for Collin County, Texas (the "Family Court") under cause no. 380-50858-00 (the "Family Law Case").⁴ During their marriage, the Plaintiff and Defendant had one child. The Divorce Decree detailed the division of the marital property and outlined the rights and duties of each parent as a joint managing conservator of the one child of the marriage. Among those provisions, the Divorce Decree ordered that the Plaintiff "shall have the exclusive right to establish the child's primary residence within Collin County or any contiguous counties,"⁵ and the Defendant "is obligated to pay and shall pay . . . child support of $1,200 per month"⁶ to the Plaintiff.

On October 15, 2003, Defendant filed a voluntary petition under Chapter 13 of the Bankruptcy Code. His Chapter 13 plan was confirmed in August 2004 and the Debtor operated under the terms of that confirmed plan until July 11, 2006 when the Debtor voluntarily converted his case to a case under Chapter 7. The Court granted a discharge under Chapter 7 to the Defendant on October 5, 2006.

During the Chapter 13 phase of his bankruptcy case, on July 22, 2005, the Debtor-Defendant sued the Plaintiff in the Family Court to modify the parent-child relationship previously established in the Divorce Decree, seeking to be appointed as the sole managing conservator of the parties' minor son.⁷ The Family Court heard this case in November 2005 and subsequently issued its "Order In Suit to Modify Parent-ChildRelationship" (the "2006 SAPCR Order") on January 6, 2006.⁸ In denying all relief sought by the Debtor-Defendant, the Family Court also issued the following affirmative relief in the 2006 SAPCR Order:

Attorney's Fees

IT IS ORDERED that good cause exists to award DIANNA MCCRACKEN a judgment against DAVID MCCRACKEN in the amount of $24,000.00 for attorney's fees incurred by DIANNA MCCRACKEN in this matter, with interest at six percent (6%) per year compounded annually from the date this Order is signed until paid in full. IT IS FURTHER ORDERED that the judgment, for which it is ORDERED that execution of all writs and processes necessary to be issued is awarded to DIANNA MCCRACKEN, Respondent, against DAVID MCCRACKEN, Petitioner. IT IS FURTHER ORDERED that DAVID MCCRACKEN, Petitioner, is ORDERED to pay this judgment directly to DIANNA MCCRACKEN . . . IT IS FURTHER ORDERED that DIANNA MCCRACKEN may enforce this judgment for attorney's fees by any means available for enforcement of a judgment for debt.

Costs

IT IS ORDERED that good cause exists to award DIANNA MCCRACKEN a judgment against DAVID MCCRACKEN in the amount of $830.00 for legal costs incurred by DIANNA MCCRACKEN in this matter, with interest at six percent (6%) per year compounded annually from the date this Order is signed until paid in full. IT IS FURTHER ORDERED that the judgment, for which it is ORDERED that execution of all writs and processes necessary to be issued is awarded to DIANNA MCCRACKEN, Respondent, against DAVID MCCRACKEN, Petitioner. IT IS FURTHER ORDERED that DAVID MCCRACKEN, Petitioner, is ORDERED to pay this judgment directly to DIANNA MCCRACKEN . . . IT IS FURTHER ORDERED that DIANNA MCCRACKEN may enforce this judgment for attorney's fees by any means available for enforcement of a judgment for debt.⁹

It is undisputed that the 2006 SAPCR Order became a final order in the Family Law Case.

Almost nine years later, the Plaintiff initiated this adversary proceeding.¹⁰ In her Motion for Summary Judgment, the Plaintiff asserts that there are no genuine issues of material fact and that, under such uncontested facts, she is entitled to a determination that (1) the debt owed to her by the Debtor-Defendant arising from the entry of the 2006 SAPCR Order is nondischargeable under §523(a)(5), and (2) the attorney's fees and expenses that she has incurred in bringing the current complaint should be awarded and included in the nondischargeability determination. The Debtor-Defendant filed a response in opposition to the motion in which he tacitly admits that there are no genuine issues of material fact but, on the basis of such admitted material facts,¹¹ he asserts thatthe debt arising from the 2006 SAPCR Order is dischargeable because it is not in the nature of support and that none of the asserted fees incurred by the Plaintiff in this adversary proceeding can be properly awarded.¹² Upon the submission of a reply by the Plaintiff to the Defendant's response,¹³ the Court took the matter under advisement.

Discussion

Summary Judgment Standard

The Plaintiff brings her Motion for Summary Judgment in this adversary proceeding pursuant to Federal Rule of Bankruptcy Procedure 7056. That rule incorporates Federal Rule of Civil Procedure 56, which provides that summary judgment shall be rendered if the movant "show[s] that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56).

Any party seeking summary judgment always bears the "initial responsibility of informing the . . . court of the basis for its motion." Id. at 323. As a movant, a partyasserting that a fact cannot be genuinely disputed must support that assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the . . . presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

FED. R. CIV. P. 56(c). "An issue is 'genuine' if it is real and substantial, as opposed to merely formal, pretended or a sham." Bazan ex. rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) (emphasis in original). "A fact is material only if its resolution would affect the outcome of the action." Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009).

The manner in which the necessary summary judgment showing can be made depends upon which party will bear the burden of persuasion at trial. As the plaintiff seeking a determination regarding the dischargeability of the 2006 SAPCR Order debts and her entitlement to attorney's fees and expenses in this adversary proceeding, the Plaintiff bears the ultimate burden of proof at trial regarding her claims. As the party carrying the burden of persuasion at trial, the Plaintiff "must support [her] motion with credible evidence-using any of the materials specified in Rule 56(c)-that would entitle [her] to a directed verdict if not controverted at trial." Celotex, 477 U.S. at 331 (Brennan, J., dissenting); Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991).

If the summary judgment motion is supported by a prima facie showing that the moving party is entitled to judgment as a matter of law, a party opposing that motion may not rest upon the mere allegations or denials in its pleadings, but rather must demonstrate in specific responsive pleadings the existence of specific facts constituting a genuine issue of material fact for which a trial is necessary. Celotex, 477 U.S. at 324. In so demonstrating, the non-movant must show more than a "mere disagreement" between the parties, Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1413 (5th Cir. 1993), or that there is merely "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Neither are unsubstantiated, conclusory assertions in the response sufficient to raise a genuine issue of material fact. Jacobs v. City of Port Neches, 7 F. Supp.2d 829, 833 (E.D. Tex. 1998) (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)). However, "the issue of material fact" which must "be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the...