Memorandum of Decision Re: Relitigation of Issue Decided by State Court

DO NOT PUBLISH This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.
Judge's Decisions
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re JOSEPH KEMP THORNE,                                                                      No. 96-14226      Debtor(s). ______________________________________/ JOSEPH KEMP THORNE,      Plaintiff(s),    v.                                                                                                            A.P. No. 99-1017 RUTH ROBERTSON THORNE,      Defendant(s). _______________________________________/
Memorandum re Abstention
     Ordinarily, whether a support obligation ordered by a state court is truly in the nature of support, and therefore nondischargeable under § 523(a)(5) of the Bankruptcy Code, is a matter of federal law to be decided by the bankruptcy court. In re Gionis, 170 B.R. 675, 681 (9th Cir.B.A.P. 1994). However, state courts have concurrent jurisdiction to determine dischargeability. Where a debtor has submitted himself to that jurisdiction by arguing and briefing the issue in the state court, and the issue was considered and ruled upon by the state court, then the debtor's proper remedy is to appeal the state court ruling, not "end run" it in bankruptcy court. In re Siragusa, 27 F.3d 406, 408-09 (9th Cir. 1994).      In order for Siragusa to apply, the party seeking abstention must show that the matter was argued, briefed, considered and lost in state court; a gratuitous or pro forma recital made at the time of the award that the obligation is in the nature of support and therefore nondischargeability will not do. In this case, defendant Ruth Thorne has demonstrated that the issue was considered and lost, but has only alleged that the issue was argued and briefed. If she proves (as she has alleged) that after the state court trial debtor and plaintiff Joseph Thorne filed a motion which specifically raised and briefed the argument that the obligation the state court had created was not truly in the nature of support and therefore dischargeable under § 523(a)(5), then the court will grant her motion and abstain. Until such proof is forthcoming, her motion shall be considered denied without prejudice.
Dated: June 8, 1999                                                                         ____________________________                                                                                                             Alan Jaroslovsky                                                                                                             United States Bankruptcy