     Case: 12-30525     Document: 00512137302     Page: 1   Date Filed: 02/06/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                   FILED
                                                                 February 6, 2013

                                   No. 12-30525                   Lyle W. Cayce
                                                                       Clerk

IN THE MATTER OF: KENNETH JOSEPH KINKADE,

                                            Debtor,

KENNETH JOSEPH KINKADE,

                                            Appellant,

v.

IRENE KINKADE,

                                            Appellee.


                  Appeal from the United States District Court
                      for the Eastern District of Louisiana



Before REAVLEY, PRADO, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
         This bankruptcy appeal asks whether a $43,675.50 debt (the “Debt”) that
Appellant Kenneth Kinkade (“Kinkade”) owes his now-ex wife Irene Porter
Kinkade (“Porter”) is dischargeable in bankruptcy. Relying on Section 523(a)(15)
of the Bankruptcy Code, the bankruptcy court—and the district court on
appeal—answered no. We agree, and AFFIRM the judgment of the bankruptcy
court.
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                                  No. 12-30525

                                       I.
      The facts of this case are undisputed. Porter loaned Kinkade two sums of
money to support Kinkade’s separate business: $23,675.50 before the parties’
marriage, and $20,000 during the marriage. Both amounts came from Porter’s
separate property.
      Porter and Kinkade divorced in 2006.        In the course of the divorce
proceedings, the state court entered a judgment that Kinkade owed Porter the
Debt. Specifically, the state-court judgment provided that: (1) $9,923.79 in
proceeds from a property sale was community property; (2) Kinkade owed Porter
$43,675.50 (the Debt), plus interest; and (3) “in the event that $9,923.79 [from
the property sale] is located, all of these funds are awarded to Irene Porter
Kinkade and one-half of said funds, or $4,961.89 shall be credited to [Kinkade’s]
obligation to [Porter].”
      Kinkade filed a Chapter 7 bankruptcy petition in February 2011. Porter
initiated this adversary proceeding to contest discharge of the Debt in the course
of Kinkade’s bankruptcy. On consideration of the parties’ cross motions for
summary judgment, the bankruptcy court concluded that Kinkade incurred the
Debt in the course of the parties’ divorce and, therefore, the Debt was exempt
from discharge pursuant to Section 523(a)(15) of the Bankruptcy Code. It
granted summary judgment in Porter’s favor, and the district court affirmed on
appeal.
                                       II.
      “This court reviews the bankruptcy court’s grant of summary judgment de
novo, using the same standard employed by the district court.” Shcolnik v.
Rapid Settlements Ltd. (In re Shcolnik), 670 F.3d 624, 627 (5th Cir. 2012).
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). When determining whether a fact issue exists, this court views

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                                        No. 12-30525

“the facts and the inferences to be drawn therefrom in the light most favorable
to the nonmoving party.” Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co.,
336 F.3d 410, 412 (5th Cir. 2003).
       The central question on appeal is whether Section 523(a)(15) of the
Bankruptcy Code applies to the Debt. The statute provides that a debt:
       to a spouse, former spouse, or child of the debtor and not of the kind
       described in paragraph (5) that is incurred by the debtor in the
       course of a divorce or separation or in connection with a separation
       agreement, divorce decree or other order of a court of record, or a
       determination made in accordance with State or territorial law by
       a governmental unit
is exempt from discharge.1 11 U.S.C. § 523(a)(15). The bankruptcy court
concluded that “[t]he state court proceedings were undoubtedly separation or
divorce proceedings, so this debt fits squarely within the clear language of
§ 523(a)(15).”
       Kinkade contests the bankruptcy court’s decision on two grounds. First,
he argues that Section 523(a)(15) applies only to community debts, not separate
obligations like the one at issue here. The statutory text suggests no such
distinction, and Kinkade cites no precedent on point.2 As the bankruptcy court
properly noted, “in determining whether a debt is non-dischargeable under . . .



       1
           Paragraph (5) relates to debts arising out of a domestic support obligation.
       2
         Kinkade relies on the Seventh Circuit’s decision in Matter of Crosswhite, 148 F.3d 879
(7th Cir. 1998), to support his position. In Crosswhite, the Seventh Circuit analyzed the
applicability of a now-deleted subpart of Section 523(a)(15). Id. Although the court used the
terms “marital” and “joint” to describe the debts at issue, it did not hold that—or even consider
whether—a debt must arise out of a community obligation to be nondischargeable pursuant
to Section 523(a)(15). Id. at 881-88. To the contrary, the Crosswhite court emphasized that
Congress enacted the provision “to broaden the types of marital debts that are
nondischargeable beyond those described in subsection (a)(5),” recognizing that “state
protection for a divorced spouse and dependent children is no longer a simple matter of
alimony and support payments.” Id. at 887. “Property settlement arrangements are
considered important components of the protection afforded individuals who, during the
marriage, depended on the debtor for their economic well-being.” Id.

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                                        No. 12-30525

§ 523(a)(15), it does not matter whether the debt was a community debt or a
separate debt.” The statutory language requires only that the debt be “incurred
by the debtor in the course of a divorce or separation.” 11 U.S.C. § 523(a)(15).3
Thus, Kinkade’s first argument is without merit.
       Second, Kinkade argues that Section 523(a)(15) does not apply to the sum
of money that Porter loaned him ($23,675.50) before the parties’ marriage.
According to Kinkade, Porter’s right to reimbursement is a contractual one, not
a marital one, and cannot “suddenly gain additional status by being included in
a petition for divorce and partition.” To hold otherwise, Kinkade argues, would
be to recognize common-law marriage in contravention of Louisiana law.
       Kinkade cites Schwegmann v. Schwegmann in support of his argument.
There, a woman sought a portion of the personal property of her longtime
partner, whom she lived with but never married, based on a verbal agreement
that the two would “share everything.” 441 So. 2d 316, 320–24 (La. App. 5th Cir.
1983). A Louisiana appellate court rejected the claim, noting that “[u]nder
present Louisiana law, unmarried cohabitation does not give rise to property
rights analogous to or similar to those of married couples.” Id. But here, unlike
in Schwegmann, Porter and Kinkade did marry, and the state court resolved
their obligations to one another —including the Debt—in the course of their
divorce proceeding. Thus, Schwegmann is inapposite.


       3
           This court has already rejected the related proposition that Section 523(a)(15) “was
not meant to apply to all property settlement debts between husband and wife, but instead
only to those situations where the debtor has agreed to indemnify his former spouse against
a marital debt owed to a third party in exchange for lower alimony payments or a more
favorable property settlement,” calling it “contrary to the statutory language.” Matter of
Gamble, 143 F.3d 223, 225 (5th Cir. 1998). Other courts have reached the same conclusion.
See, e.g., In re Radulovic, No. BAP-WW-06-1040-MCKD, 2006 WL 6811000, *3 (9th Cir. Sept.
29, 2006) (citing Gamble, 143 F.3d at 225) (“The courts have had no difficulty determining that
a debt owed directly to a former spouse and not based on an indemnity obligation may be
nondischargeable under § 523(a)(15).”); see also Short v. Short (In re Short), 232 F.3d 1018 (9th
Cir. 2000) (affirming a bankruptcy court’s determination that debt based on a pre-marriage
loan from one spouse to the other was nondischargeable under Section 523(a)(15)).

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                                No. 12-30525

      Holding the debt nondischargeable pursuant to Section 523(a)(15) does not
equate with “recognizing” common-law marriage in Louisiana.             Section
523(a)(15) leaves it to the state court to decide whether a property right is
properly addressed in divorce proceedings, or as a separate contractual claim.
Only after the state court has made that determination can Section 523(a)(15)
have any effect. Here, the Louisiana court determined that the Debt, including
the first $23,675.50 Porter loaned to Kinkade, was more than a mere contractual
obligation unrelated to the marriage. Applying Section 523(a)(15) in this case
merely recognizes the state court’s application of its own law; it does not, as
Kinkade suggests, “rewrite the community property laws” of Louisiana. Thus,
Kinkade’s second argument fails.
      The court concludes that the debt is nondischargeable under Section
523(a)(15) of the Bankruptcy Code. The judgment of the bankruptcy court is
AFFIRMED.




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