          Case: 12-15294    Date Filed: 11/15/2013   Page: 1 of 11


                                                                     [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                            No. 12-15294
                      ________________________

        D.C. Docket Nos. 8:11-cv-02323-MSS, 8:10-bk-07286-CED


In Re: KULAKOWSKI,

                                                                       Debtor,


SUSAN L. KULAKOWSKI,

                                                            Plaintiff-Appellant,

                                  versus

DONALD F. WALTON,
UNITED STATES TRUSTEE,

                                                          Defendant-Appellee.

                     ___________________________

               Appeal from the United States District Court
                    for the Middle District of Florida
                   ____________________________

                           (November 15, 2013)
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Before JORDAN, DUBINA, and BALDOCK, * Circuit Judges.

JORDAN, Circuit Judge:

       In 2010, Susan Kulakowski filed a voluntary petition for bankruptcy under

Chapter 7 of the Bankruptcy Code. At the time, her obligations consisted primarily

of consumer debt and included $136,470.75 of unsecured non-priority debt, which

she sought to discharge. The bankruptcy court granted the motion of the United

States Trustee for summary judgment and dismissed the case under the abuse

provisions in 11 U.S.C. §§ 707(b)(1) and 707(b)(3)(B).                   In so doing, the

bankruptcy court ruled that all of the income and expenses of Mrs. Kulakowski’s

husband should be considered in determining the ability of Mrs. Kulakowski to pay

her debts. The district court affirmed the bankruptcy court’s order.

       Under § 707(b)(1), a bankruptcy court “may dismiss a case filed by an

individual debtor under [Chapter 7] whose debts are primarily consumer debts . . .

if it finds that the granting of relief would be an abuse.” 11 U.S.C. § 707(b)(1). In

making this determination, the bankruptcy court considers whether “the totality of

the circumstances . . . of the debtor’s financial situation demonstrates abuse.” 11

U.S.C. § 707(b)(3)(B). Mrs. Kulakowski argues on appeal that the bankruptcy

court erred when it considered the entirety of her non-filing spouse’s income in its

“totality of the circumstances” analysis. For the reasons that follow, we disagree
*
 Honorable Bobby R. Baldock, Senior United States Circuit Judge for the Tenth Circuit, sitting
by designation.


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and affirm the judgment of the bankruptcy court.



                                           I

      Mr. and Mrs. Kulakowski have been married for over 20 years. During the

course of their marriage, they have operated as a financial unit, maintaining a joint

checking account, filing joint tax returns, and pooling their income and expenses.

Mrs. Kulakowski does not currently earn any income, but Mr. Kulakowski deposits

all of his income into the couple’s joint account. Mr. Kulakowski’s monthly take-

home pay is $5,491.20, about $1,100 more than the monthly household expenses

of $4,338.33, which are paid through the joint account funded by Mr. Kulakowski.1

      The Kulakowskis did not, however, operate as a financial unit for purposes

of the Chapter 7 bankruptcy petition, which Mrs. Kulakowski filed individually.

Although the bankruptcy court did not detail the circumstances that led to Mrs.

Kulakowski’s precarious financial condition, the record indicates that most of her

unsecured debt was credit card debt. See D.E. 69 at 2. Significantly, a “substantial

portion” of this debt was incurred for the benefit of the household and, in some

instances, solely for the benefit of Mr. Kulakowski. See id.

                                          II


      1
        Mr. Kulakowski’s net monthly pay reflects $8,497.69 in income minus $3,006.49 in
payroll deductions. The monthly expense figure includes $364.00 per month for Mr.
Kulakowski’s car payment.

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   Mrs. Kulakowski does not dispute any findings of fact. Instead, she challenges

the bankruptcy court’s statutory interpretation, which is generally subject to de

novo review. See, e.g., In re Meehan, 102 F.3d 1209, 1210 (11th Cir. 1997).

   The statute at issue here, § 707(b)(3)(B), does not define “totality of the

circumstances,” and bankruptcy courts have considerable discretion in determining

whether dismissal for abuse is appropriate under this provision.         When such

discretion is challenged, we review only for abuse of discretion. See In re Piazza,

719 F.3d 1253, 1271 (11th Cir. 2013) (“Having concluded that prepetition bad

faith constitutes ‘cause’ for dismissal under § 707(a), we must next determine

whether the bankruptcy court abused its discretion in dismissing Piazza’s case

based upon the court’s finding of prepetition bad faith.”); Bankr. Adm’r v.

Gregory, 471 B.R. 823, 826 (E.D.N.C. 2012) (“The totality of the circumstances

test used to determine whether discharging a debtor’s debt would constitute abuse

is reviewed for abuse of discretion.”). A bankruptcy court abuses its discretion

when it “applies the wrong principle of law or makes clearly erroneous findings of

fact.” In re Piazza, 719 F.3d at 1271.

                                          III

      At issue here is the bankruptcy court’s interpretation of the abuse provisions

of Chapter 7 of the Bankruptcy Code. “The principal purpose of the Bankruptcy

Code is to grant a ‘fresh start’ to the ‘honest but unfortunate debtor.’” Marrama v.


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Citizens Bank of Mass., 549 U.S. 365, 367 (2007) (quotation marks omitted). As

we have explained, § 707 “sets forth the circumstances under which a court may

dismiss a Chapter 7 case or, with the debtor’s consent, convert it into a Chapter 11

or a Chapter 13 case.” In re Witcher, 702 F.3d 619, 621 (11th Cir. 2012). In

keeping with the underlying aim of the Bankruptcy Code, “§ 707(b) focuses on the

purpose of Chapter 7 relief under the . . . Code, primarily the issue of whether the

petitioner is the honest and needy consumer debtor the Code was intended to

protect.” In re Mottilla, 306 B.R. 782, 788 (Bankr. M.D. Pa. 2004).

        As noted earlier, the bankruptcy court considered all of Mr. Kulakowski’s

income and expenses in analyzing Mrs. Kulakowski’s ability to pay her debts. The

linchpin of Mrs. Kulakowski’s argument is that the bankruptcy court’s totality of

the circumstances analysis was “flawed” because the bankruptcy court

“misconstrued” another provision of the Bankruptcy Code. Specifically, Mrs.

Kulakowski cites to 11 U.S.C. § 101(10A), which defines the “current monthly

income” of the debtor to include “any amount paid by any entity other than the

debtor . . . on a regular basis for the household expenses of the debtor.” She notes

that her husband’s entire monthly income far exceeds her share of the household

expenses, and asserts that this income can only be considered to the extent that it is

used “for the household expenses of the debtor,” as stated in § 101(10A) of the

Code.


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      We recently clarified that bankruptcy courts may consider the debtor’s

“ability to pay his or her debts” when determining whether the totality of the

circumstances implicates abuse. See In re Witcher, 702 F.3d at 623 (observing that

the phrasing of § 707(b)(3)(B) “surely intended to include the debtor’s ability to

pay his or her debts”). A number of bankruptcy courts have applied this principle

to encompass the income of a non-debtor spouse. See, e.g., In re Harter, 397 B.R.

860, 865 (Bankr. N.D. Ohio 2008) (“[B]ankruptcy courts take into account the

income of a debtor’s non-filing spouse or co-habitant because it is necessary to

evaluate a debtor’s ability to repay her financial obligations.”) (quotation marks

omitted); In re Engskow, 247 B.R. 314, 317 (Bankr. M.D. Fla. 2000) (“In

determining the totality of circumstances, it is appropriate to consider the spouse’s

income.”). Mrs. Kulakowski notably does not contest the consideration of her

husband’s income as part of the totality of the circumstances inquiry. She instead

argues that the bankruptcy court should have limited its consideration to the

amount of her husband’s income contributed for her household expenses.

      In analyzing the Bankruptcy Code, we begin with the text of the relevant

provision: “We analyze the language of the provision at issue, the specific context

in which that language is used, and the broader context of the statute as a whole.”

United States v. Zuniga-Arteaga, 681 F.3d 1220, 1223 (11th Cir. 2012) (citation

omitted). Where the provision “has a plain and unambiguous meaning with regard


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to the particular dispute in the case and the statutory scheme is coherent and

consistent,” we need go no further and confine our analysis to the plain language of

the statute. Id.

      The threshold problem with Mrs. Kulakowski’s argument is that the term

“current monthly income” does not appear anywhere in the Chapter 7 abuse

provisions—§§ 707(b)(1) & 707(b)(3)(B)—that govern this case. Nor is the term

made a part of the totality of the circumstances test.

      The term “current monthly income” figures largely in the so-called means

test set forth in a neighboring provision of § 707. See 11 U.S.C. § 707(b)(2)(A)(i).

Congress’ decision to include “current monthly income” as an explicit

consideration under § 707(b)(2) but not to list it under § 707(b)(3) raises a

rebuttable presumption that the omission from § 707(b)(3) was intentional. See

United States v. Slaughter, 708 F.3d 1208, 1216 (11th Cir. 2013) (“Where

Congress includes particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.”) (quoting

Russello v. United States, 464 U.S. 16, 23 (1983)).        Unlike the situation we

encountered in Hope v. Acorn Financial, Inc., 731 F.3d 1189, ____ (11th Cir.

2013) (page citations unavailable), the presumption here is persuasive. Indeed, we

have concluded that the totality of the circumstances test and the means test are not


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completely co-extensive. See In re Witcher, 702 F.3d at 623 (explaining that one’s

ability to pay debts is a factor under the means test does not preclude a bankruptcy

court from also considering it under the totality of the circumstances analysis).

      We are not persuaded by Mrs. Kulakowski’s argument that the “specific and

detailed” provisions of § 707(b)(2) pertaining to “current monthly income”

overcome and subsume the broad and general language of § 707(b)(3)(b).

“Although specific statutory provisions often trump more general ones, this

presumption is not an absolute rule. Rather, the general/specific canon is simply

an indication of statutory meaning that can be overcome by textual indications that

point in the other direction.” In re Piazza, 719 F.3d at 1267 (quotation marks

omitted). Few if any tests are as open-ended as the totality of the circumstances.

The inherent flexibility and wide breadth of the totality of the circumstances

inquiry, coupled with Congress’ decision not to include “current monthly income”

as an explicit limiting factor under § 707(b)(3)(b), constitute sufficient textual

evidence to overcome the general/specific canon. See Owusu-Ansah v. Coca-Cola

Co., 715 F.3d 1306, 1312 (11th Cir. 2013) (“[C]ommon sense is not irrelevant in

construing statutes[.]”). We cannot gainsay the language of § 707(b)(3)(B) and

add words that Congress chose to omit such that the totality of the circumstances

inquiry would be limited to consideration of a debtor’s “current monthly income.”

See Harris v. Garner, 216 F.3d 970, 976 (11th Cir. 2000) (“We will not do to the


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statutory language what Congress did not do with it, because the role of the judicial

branch is to apply statutory language, not to rewrite it.”).

                                               IV

      Having rejected Mrs. Kulakowski’s statutory-interpretation arguments, we

turn to factual and equitable considerations. As we and other circuits have long

observed, “[t]he cornerstone of the bankruptcy courts has always been the doing of

equity.” In re Waldron, 785 F.2d 936, 941 (11th Cir. 1986). Accord In re Am.

Capital Equip., LLC, 688 F.3d 145, 157 (3d Cir. 2012) (underscoring the

Bankruptcy Code’s objective of “achieving fundamental fairness and justice”); In

re Marrama, 430 F.3d 474, 477 (1st Cir. 2005) (“[A] bankruptcy court sitting in

equity is duty bound to take all reasonable steps to prevent a debtor from abusing

or manipulating the bankruptcy process to undermine the essential purposes of the

Bankruptcy Code, including the principle that all the debtor’s assets are to be

gathered and deployed in a bona fide effort to satisfy valid claims.”); In re Beck

Indus., Inc., 605 F.2d 624, 634 (2d Cir. 1979) (Friendly, J.) (“We need not belabor

the point that a bankruptcy court sits as a court of equity[.]”). It follows that both

Chapter 7 of the Code and § 707(b) should be applied with the aim of effectuating

justness and equity. See In re Mottilla, 306 B.R. at 788.

      The Kulakowskis have been married for 21 years, share a joint checking

account, file joint tax returns, jointly own their homestead, and pool their income


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and expenses.    And, significantly, Mrs. Kulakowski incurred credit card debt

during her marriage stemming in large part from charges that benefited the

household generally and her husband specifically. Viewing this set of facts in the

aggregate, we cannot say that the bankruptcy court, which analyzed the record

under the broad framework of the totality of the circumstances test, abused its

discretion in dismissing Mrs. Kulakowski’s Chapter 7 petition. See In re Piazza,

719 F.3d at 1271 (underscoring the “inherently discretionary nature” of the totality

of the circumstances test for determining bad faith under 11 U.S.C. § 707(a)). See

also In re Rasbury, 24 F.3d 159, 168 (11th Cir. 1994) (“the abuse of discretion

standard allows ‘a range of choice for the . . . court, so long as that choice does not

constitute a clear error of judgment’”).

      Although we sympathize with Mrs. Kulakowski’s perception that the

bankruptcy court paternalistically penalized her for having a wealthy husband, we

also recognize the bankruptcy court’s overriding mandate to effectuate fairness and

justice in applying the Bankruptcy Code. See In re Waldron, 785 F.2d at 941. The

bankruptcy court did not abuse its discretion in finding that it would be inequitable

to disregard the income of Mr. Kulakowski, income which traditionally directly

benefited Mrs. Kulakowski or indirectly benefited her by enriching her household,

and which might instead just as readily serve to repay her creditors. Nor would

fairness have been served by ignoring the fact that a substantial part of Mrs.


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Kulakowski’s debt benefitted her husband or her household at large.              The

bankruptcy court could reasonably conclude that allowing a bankruptcy to proceed

under these facts could have created a de facto windfall for Mrs. Kulakowski at the

expense of her creditors, a result that would run counter to the principles of equity

and justness that underlie the Bankruptcy Code.

                                               V

      We conclude by emphasizing that our ruling is limited to the particular set of

facts before us and our review of the bankruptcy court’s ruling through the prism

of the highly deferential abuse of discretion standard. We do not opine on how

much weight, if any, a non-debtor’s spouse’s income should generally carry in a

bankruptcy court’s § 707(b)(3)(B) analysis, nor do we suggest that a bankruptcy

court’s discretion in applying this provision is unlimited.

      Given the nature of Mrs. Kulakowski’s debt and the financial relationship

between the Kulakowskis, however, we hold that the bankruptcy court did not

abuse its discretion in applying the totality of the circumstances test.         The

bankruptcy court’s dismissal of Mrs. Kulakowski’s Chapter 7 bankruptcy petition

is affirmed.

      AFFIRMED.




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