FOR THE NORTHERN DISTRICT OF CALIFORNIA
RAYMOND ROY HICKMAN, No. 1-86-01980
RAYMOND ROY HICKMAN,
v. A.P. No. 1-87-0021
Memorandum of Decision
Plaintiff Raymond Hickman is the former husband of defendant Patricia Hickman. Raymond filed his
Chapter 7 petition on December 16, 1986. He commenced this adversary proceeding when Patricia sought
to enforce provisions of their marital settlement decree in state court. Raymond contends that part of the
obligation sought to be enforced was a discharged property settlement obligation. This court enjoined
Patricia from proceeding in state court pending this court's ruling, and heard the matter as expeditiously as
Raymond is a real estate broker of modest income. He was unrepresented in the dissolution proceedings
because, he says, Patricia's family threatened to institute proceedings which would jeopardize his broker's
license unless he did as they directed. At any rate, in return for Paricia's waiver of any rights against his real
estate brokerage, which had little apparent value, Raymond agreed to give Patricia most of the community
property including the family residence and to pay her spousal support of $833.00 per month, and child
support of $667.00 per month. In addition, Raymond agreed to make the payments on a note secured by
a second deed of trust to the former marital residence in the amount of $333.00 per month. It is only this
monthly note payment which is in dispute here.
Regardless of how the marital decree characterizes the note payments, it is the responsibility of this court
to apply federal standards to determine if a payment denominated as support is actually in the nature of a
property settlement obligation. Shaver v. Shaver
(9th Cir.1984) 736 F.2d 1314, 1317. The matter is left
to the sound discretion of this court. Stout v. Prussel
(8th Cir.1983) 703 F.2d 1055, 1057-58.
The court does not feel the need for a detailed analysis of the note obligation, as all factors save one
clearly indicate that the note payment obligation is in the nature of support. Since the property division was
skewed in favor of Patricia to begin with, it is impossible for Raymond to show that the payment was
intended to equalize shares of the marital property. Further, the facts that Patricia had little income and no
marketable skill and a minor child under her care are indicia that the note payments are to be considered
support under the guidelines set forth in Shaver v. Shaver
. Also, the fact that Patricia waived spousal
support after the note was paid off is very relevant. Contrary to Raymond's argument, this factor makes
the obligation look more like support, not less. See, e.g., In re Anderson
(Bkrtcy.S.D.Cal.1982) 21 B.R.
The sole troublesome factor in this case is that the debtor's total monthly obligation under the marital
decree is $1833.00, a figure far in excess of the debtor's apparent ability to pay and in fact approaching
the total of his income. The debtor argues that he is in a Catch-22 situation where the state court will treat
the note payment obligation as a non-modifiable property settlement obligation and decline to give him
relief, while this court will treat the same obligation as support and decline to discharge it. However, this
court has the power to fashion a fair and full remedy to avoid this bind. In re Ploski
44 B.R. 911, 914.
Accordingly, this court will enter a judgment that the debtor's obligation to make the Mickalek note
payments is in the nature of support, and therefore nondischargeable. However, this court will retain
jurisdiction to review and reconsider this decision if Patricia argues in any manner before the state court that
the obligation to make the Mickalek note payments is not a modifiable support obligation or should not be
included in a determination of Raymond's overall support obligations, or if the state court so finds.
All stays are hereby lifted in order to allow both parties to proceed in state court in accordance with this
decision. However, Patricia shall not seek sanctions against Raymond for any failure to make the Mickalek
payments between December 16, 1986, and the date set forth below.
This memorandum shall constitute findings and conclusions pursuant to Bankruptcy Rule 7052 and
FRCP 52(a). Counsel for Raymond shall prepare and submit an appropriate form of judgment.
Dated: July 24, 1987 _______________________