UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
|DO NOT PUBLISH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.
JOSEPH KEMP THORNE, No. 96-14226
JOSEPH KEMP THORNE,
v. A.P. No. 99-1017
RUTH ROBERTSON THORNE,
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
In order for Siragusa
to apply, the party seeking abstention must show that the matter was
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 ____________________________
United States Bankruptcy