       United States Bankruptcy Appellate Panel
                          For the Eighth Circuit
                      ___________________________

                              No. 17-6032
                      ___________________________

In re: Erin R. Kemp, also known as Erin R. Guinn, also known as Erin R. Griffin

                             lllllllllllllllllllllDebtor

                           ------------------------------

                                  Erin R. Kemp

                      lllllllllllllllllllllPlaintiff - Appellant

                                         v.

                    United States Department of Education

                     lllllllllllllllllllllDefendant - Appellee
                                    ____________

                Appeal from United States Bankruptcy Court
              for the Western District of Arkansas - Fayetteville
                               ____________

                          Submitted: August 2, 2018
                           Filed: August 24, 2018
                               ____________

Before SALADINO, Chief Judge, NAIL and SHODEEN, Bankruptcy Judges.
                             ____________

SALADINO, Chief Judge.
      The Appellant, Erin R. Kemp, appeals the order of the bankruptcy court1
denying her request for discharge of her student loan obligations to the United States
Department of Education (“DOE”) under 11 U.S.C. § 523(a)(8). We have jurisdiction
over this appeal. See 28 U.S.C. § 158(b). For the reasons that follow, we affirm.

                                       ISSUE

      The ultimate issue on appeal is whether the bankruptcy court properly held that
Appellant failed to meet her burden of proving an undue hardship under 11 U.S.C.
§ 523(a)(8). Appellant argues that the bankruptcy court did not apply the correct legal
standards in its totality-of-the-circumstances analysis. Specifically, she believes the
bankruptcy court improperly gave “dispositive effect” to her eligibility for a zero
payment income-based repayment program offered by the DOE. Appellant also
believes the bankruptcy court improperly applied an analysis of ability to make
payments on the loan as directed by Educ. Credit Mgmt. Corp. v. Jesperson (In re
Jesperson), 571 F.3d 775 (8th Cir. 2009). Finally, Appellant believes the bankruptcy
court made clearly erroneous factual findings regarding her present income and
expenses.

                             STANDARD OF REVIEW

       Whether excepting a debtor’s student loan debt from discharge would impose
an undue hardship is a conclusion of law that we review de novo. Walker v. Sallie
Mae Servicing Corp. (In re Walker), 650 F.3d 1227, 1230 (8th Cir. 2011) (citing
Long v. Educ. Credit Mgmt. Corp. (In re Long), 322 F.3d 549, 553 (8th Cir. 2003)).
“Subsidiary findings of fact on which the legal conclusion is based are reviewed for
clear error.” Jesperson, 571 F.3d at 779 (citing Reynolds v. Penn. Higher Educ.


      1
       The Honorable Ben Barry, United States Bankruptcy Judge for the Western
District of Arkansas.

                                         -2-
Assistance Agency (In re Reynolds), 425 F.3d 526, 531 (8th Cir. 2005)). “We will not
upset the bankruptcy court’s findings of fact unless, after reviewing the entire record,
we are left with the definite and firm conviction that a mistake has been made.”
Nielsen v. ACS, Inc. (In re Nielsen), 473 B.R. 755, 758 (B.A.P. 8th Cir. 2012), aff’d,
502 Fed. Appx. 634 (8th Cir. 2013) (citations omitted).

                            FACTUAL BACKGROUND

       In February 2016, Appellant filed a petition under Chapter 7 of the United
States Bankruptcy Code in the Western District of Arkansas. On May 3, 2017, she
filed the adversary proceeding that is the subject of this appeal, seeking a
determination that her student loans owed to the DOE were dischargeable in her
bankruptcy case.

      At the time of trial, Appellant was a 36-year-old single mother to a 13-year-old
daughter. She began working part-time for Arvest Bank in 1998 at a starting wage of
approximately $10.00 per hour. While working for Arvest, Appellant began attending
college, but withdrew after two semesters and began working full-time at Arvest. In
2007, while still working full-time at Arvest, she began taking online courses through
Ashford University to obtain a college degree and enhance her ability to be promoted
within Arvest. Her education at Ashford was financed with the student loan that is the
subject of this case. In 2010, she obtained a bachelor’s degree in psychology with a
minor in sociology.

       The Appellant worked at Arvest Bank for 17 years and received numerous
promotions and pay raises. She began as a teller, was promoted to an administrative
assistant, then a credit manager, an assistant branch manager, and finally a branch
manager. As branch manager, her salary was $45,000.00 per year, plus periodic
bonuses. She also had health insurance and a retirement plan, which included
contributions from Arvest.

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       While employed at Arvest, Appellant was able to remain current on her student
loan payments of $350.00 per month. However, she began having difficulty paying
her student loan when she resigned from her job at Arvest in June 2015, eight months
prior to filing her bankruptcy case. Appellant testified that she resigned her job at
Arvest because the working environment had become too stressful, resulting in
anxiety and depression for which she takes medication. She also testified that she left
Arvest on good terms and could even be employed there again, albeit at a lower level
position.

       Upon leaving Arvest, Appellant withdrew $35,000.00 from her Arvest
retirement account. That money was quickly used to purchase or pay off a truck for
her then husband, make a loan to her stepson, and pay other bills. None of the money
from her 401(k) was paid toward her student loan.

       During the eight months between leaving Arvest and filing her Chapter 7
bankruptcy case, the Appellant began working part-time for Lowe’s. At the time of
the trial, she was making $13.46 per hour and estimated that she averages around
$400.00 per biweekly paycheck. Appellant testified that she is a good employee and
Lowe’s allows her to set her own hours. She also believes that Lowe’s would hire her
full-time – but if she did so, she would lose the ability to control her schedule. The
flexible schedule allows her to spend additional time with her daughter and to run a
small childcare business. With her job at Lowe’s, Appellant has health, dental, vision,
disability, and life insurance, but the coverage is not as comprehensive as the
insurance benefits available to full-time employees.

        A substantial portion of Appellant’s testimony at trial involved the childcare
business. Essentially, during the school year, the Appellant provides before- and
after- school childcare to three children, including the provision of breakfast, snacks,
and driving to and from school and after-school activities. She also watches two of

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the children on certain days of the week during the summer months. According to
Appellant’s amended Schedule I, she nets $100.00 per month from her part-time
childcare business. In addition, she receives $175.00 per month in child support and
receives a substantial tax refund every year, which she prorates to approximately
$450.00 per month. In sum, between her income from Lowe’s, net childcare business
income, child support, and her prorated tax refund, Appellant estimates her monthly
net income to be $1,711.00.

       Appellant is currently enrolled in an income-based repayment plan with the
DOE. Under that plan, her income and expenses are reviewed on an annual basis, and
a payment amount is set based on her ability to pay. After a period of time (perhaps
as long as 25 years – the record is not entirely clear on this point), the balance of the
loan is forgiven if she has completed all payments under the income-based repayment
plan. Based on Appellant’s current income and expenses, her monthly payment due
to the DOE is $0.00.

                        BANKRUPTCY COURT OPINION

       After a trial, the bankruptcy court found that the Appellant did not meet her
burden of proving that the student loan would impose an undue hardship sufficient
to discharge the debt under 11 U.S.C. § 523(a)(8), and denied her complaint. The
bankruptcy court specifically found that “the debtor appeared intelligent, composed,
pleasant, accomplished, and articulate – qualities that have undoubtedly contributed
to the debtor’s historical success in the workplace.” In its opinion, the bankruptcy
court reviewed amended Schedules I and J, which were filed in her underlying
bankruptcy case on the day before trial. The bankruptcy court noted that the $100.00
per month estimated net income from the childcare business shown on the amended
Schedule I was inconsistent with Appellant’s testimony. Specifically, the bankruptcy
court found that based on Appellant’s testimony, her actual net income from the
childcare business is about $670.00 per month. The bankruptcy court also noted that

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amended Schedule J included $700.00 of “anticipated” monthly expenses comprised
of $300.00 for a car payment, $300.00 to “upgrade health insurance,” $50.00 for
vacations, and $50.00 for emergencies. The court found that only $350.00 of the
anticipated expenses were warranted – those for the car payment and emergencies.
After the bankruptcy court made its adjustments to Appellant’s income and expenses,
the bankruptcy court found that she had a surplus (income in excess of expenses) of
at least $105.00 per month.

       In addition to reviewing Appellant’s past, present, and reasonably reliable
future financial resources, the bankruptcy court also considered additional factors that
may be relevant to a determination of undue hardship as required by Jesperson. 573
F.3d at 784. In undertaking this analysis of all relevant facts and circumstances, the
bankruptcy court specifically found that the Appellant’s present inability to pay her
student loan debt is entirely within her control. The bankruptcy court acknowledged
that Appellant was a credible witness and believes that she has been diagnosed with
anxiety and depression, but noted that she introduced no medical records or testimony
to indicate the extent of those conditions and whether they make it impossible or even
inadvisable to work full-time. The court noted Appellant testified that she could work
full-time at Arvest or at Lowe’s, and have better health insurance and other benefits,
but chooses not to do so due to the flexibility of her part-time schedule.

       The bankruptcy court stated “the Court finds that the debtor has prioritized the
flexibility of a part-time schedule over a more lucrative full-time employment and –
although the debtor’s choice to spend more time with her family may be
understandable to some extent – it is still a choice, and, by definition, within her
control.” The bankruptcy court further noted that when the Appellant was employed
full-time, she made regular payments on her student loans without a problem. Finally,
the bankruptcy court noted that the existing hardship is not long-term. Her daughter
is entering high school and plans to attend college. The need to prioritize flexibility



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of a part-time schedule over more lucrative full-time employment will not exist in a
few years. In short, the bankruptcy court held:

            [A]lthough the Court does not believe that the debtor’s
            expenses are extravagant, the Court cannot find that the
            debtor has made a good faith effort to maximize her
            income because – as the Court has already discussed in
            detail – she is choosing to work part-time despite at least
            two readily available options for her full-time employment.

Accordingly, the bankruptcy court denied Appellant’s complaint.

                                   DISCUSSION

      Bankruptcy Code § 523(a)(8) provides, in pertinent part, that a bankruptcy
discharge does not discharge student loan debt “unless excepting such debt from
discharge . . . would impose an undue hardship on the debtor or the debtor’s
dependents[.]” 11 U.S.C. § 523(a)(8). The debtor bears the burden to prove undue
hardship by a preponderance of the evidence. Jesperson, 571 F.3d at 779. The test
used in the Eighth Circuit to determine undue hardship is the totality-of-the-
circumstances test, as stated by the Eighth Circuit:

            In evaluating the totality-of-the-circumstances, our
            bankruptcy reviewing courts should consider: (1) the
            debtor’s past, present, and reasonably reliable future
            financial resources; (2) a calculation of the debtor’s and her
            dependent’s reasonable necessary living expenses; and (3)
            any other relevant facts and circumstances surrounding
            each particular bankruptcy case. Simply put, if the debtor’s
            reasonable future financial resources will sufficiently cover
            payment of the student loan debt – while still allowing for
            a minimal standard of living – then the debt should not be
            discharged.

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      Long, 322 F.3d at 554-55 (citations omitted). Applying a de novo review, we
determine that the bankruptcy court applied the correct standard, the totality-of-the
circumstances standard, and properly held that the Appellant failed to meet her
burden of proving an undue hardship.

       Appellant’s briefing on appeal asserts three limited assignments of error. First,
Appellant takes issue with certain of the legal standards used by the bankruptcy court
in applying the totality-of-the-circumstances test. She believes the bankruptcy court
improperly gave “dispositive effect” to her eligibility for a zero payment income-
based repayment program offered by the DOE. However, that belief is simply not
supported by the record. The references in the bankruptcy court’s order to the income
based repayment plan were in its analysis of “any other relevant facts and
circumstances” as required by Long and Jesperson. Contrary to Appellant’s assertion,
the bankruptcy court said, “While the debtor’s eligibility for an income-based
repayment program is not dispositive, it is a factor that weighs against the discharge
of the debt.” (emphasis added). Clearly, the bankruptcy court did not give dispositive
effect to Appellant’s eligibility for an income based repayment program and this
assignment of error is without merit.

      Second, Appellant takes issue with the bankruptcy court’s refusal to hold that
the student loan debt should be discharged if debtor is unable to pay the full
contractual payment amount at the time the bankruptcy case is filed. On this point,
the bankruptcy court held:

            Also, the Court will state definitively that it disagrees with
            the debtor’s contention that the Court must discharge a
            student loan debt if it appears on the day of trial that the
            debtor will be unable to afford to repay the entire amount of
            the debt without undue hardship. To the contrary, the Eighth
            Circuit has stated unequivocally that “a student loan should

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             not be discharged when the debtor has the ability to earn
             sufficient income to make student loan payments” under an
             income based program such as the one the debtor is
             participating in now and the one offered by DOE at trial.
             See In re Jesperson, 571 F.3d at 781 (emphasis added).

       Appellant seems to be asking us to interpret Long and Jesperson in a way that
prevents the bankruptcy court from considering available payment programs as a
factor in the undue hardship analysis. She wants us to consider only whether she has
the ability to pay the whole debt, without consideration of other repayment programs
and options. However, the Eighth Circuit Court of Appeals has not imposed any such
limitation and was clear in Jesperson that the bankruptcy court should consider the
availability of other repayment programs and options, saying: “However, a student
loan should not be discharged when the debtor has ‘the ability to earn sufficient
income to make student loan payments under the various special opportunities made
available through the Student Loan Program.’” Jesperson, 571 F. 3d at 781 (citing In
re VerMass, 302 B.R. 650, 660 (Bankr. D. Neb. 2003)). The bankruptcy court properly
considered the payment programs as part of the review of “other relevant facts and
circumstances” as required by the totality-of-the-circumstances test. This assignment
of error is also without merit.

       Appellant’s third and primary contention on appeal is that the bankruptcy court
clearly erred in calculating her present income and expenses by overstating her net
business income and rejecting a $50.00 per month expense deduction for a vacation
fund. We reject this assignment of error for several reasons.

       First, Appellant had the “rigorous” burden of proving undue hardship by a
preponderance of the evidence. Id. at 779. Unfortunately, the testimony and evidence
regarding the childcare business was incomplete and inconsistent. Appellant gave
estimates of food and fuel expenses for the childcare business, but also acknowledged
that part of the food is consumed by Appellant and her own daughter, and some of the

                                         -9-
transportation expenses relate to her daughter’s school and activities. There was no
clear breakdown of the actual expenses Appellant incurred just for the childcare
business. It seems that the Appellant’s estimate of $100.00 per month net income from
the business is based on her tax returns, which allow deductions from taxable income
for certain home and automobile expenses related to the business. However, for
purposes of the undue hardship analysis, taxable income from the business is not
equivalent to actual cash flow that can be used to make student loan payments. The
bankruptcy judge made his calculations on readily identifiable testimony from the
Appellant. It was Appellant’s “rigorous burden” to show otherwise and we agree with
the bankruptcy court that she failed to meet that burden.

       Second, even if the bankruptcy court misunderstood some or part of Appellant’s
testimony, it only affected one element of the first prong of the totality-of-the-
circumstances test. That is, it pertained only to the Appellant’s present financial
resources. As indicated, the test requires consideration of a debtor’s past, present, and
reasonably reliable future financial resources. The vacation fund and childcare income
issue did not affect the court’s consideration of Appellant’s past financial resources
(namely salary from Arvest Bank) or future financial resources (namely, from full-time
employment).

       Third, regardless of whether the Appellant’s net monthly income from the
childcare business is $100.00 as she suggests, or more than $600.00 as the bankruptcy
court suggests, it does not change her student loan payment to the DOE. Her payment
calculated under the DOE income-based repayment guidelines is $0.00. This zero
payment amount was a factor considered by the bankruptcy court in its evaluation of
undue hardship.

      Fourth, and finally, it is clear from the bankruptcy court’s opinion that
Appellant’s present financial condition was not a factor that weighed heavily in the
hardship analysis. The bankruptcy court noted more than once that Appellant’s present

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financial difficulties are not expected to be long-term and are entirely within her own
control due to choices she has made.

       Accordingly, reviewing the record de novo, we note that the facts are
undisputed that Appellant had no problem making (and did make) full student loan
payments when she was employed as a full-time bank branch manager. She voluntarily
left that employment and chooses to stay in her current part-time employment status
to allow for a more flexible schedule. She testified to having opportunities to again
work full-time, whether back at the bank or at Lowe’s. No medical evidence was
presented to indicate that the Appellant is unable to work on a full-time basis. We
agree with the bankruptcy court that Appellant’s current financial restraints are the
result of choices she has made and are not long term. Therefore, we agree that
Appellant failed to meet her burden of proving an undue hardship under 11 U.S.C. §
523(a)(8).

                                   CONCLUSION

      For the foregoing reasons, we affirm the bankruptcy court.
                      ______________________________




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