                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 15a0028n.06

                                                 No. 14-5735
                                                                                    FILED
                              UNITED STATES COURT OF APPEALS                     Jan 08, 2015
                                   FOR THE SIXTH CIRCUIT                     DEBORAH S. HUNT, Clerk

In re: JAMES ALBERT THOMAS; REBECCA )
MARIE THOMAS,                                                     )
                                                                  )
         Debtors.                                                 )
----------------------------------------------------------------- )
                                                                  )
                                                                      ON APPEAL FROM THE
JAMES ALBERT THOMAS; REBECCA MARIE )
                                                                      BANKRUPTCY APPELLATE
THOMAS,                                                           )
                                                                      PANEL OF THE SIXTH
                                                                  )
                                                                      CIRCUIT
         Appellants,                                              )
v.                                                                )
                                                                  )
JENNIFER CLARK,                                                   )
                                                                  )
         Appellee.                                                )


        Before: SUTTON, McKEAGUE, and KETHLEDGE, Circuit Judges.

        KETHLEDGE, Circuit Judge. James and Rebecca Thomas appeal the bankruptcy court’s

determination that certain debts James owes to his ex-wife Jennifer Clark are domestic-support

obligations and therefore nondischargeable in bankruptcy. We affirm.

        James Thomas (hereafter “Thomas”) and Jennifer Clark married in 1995 and had two

children together. In 1999, they bought a family home in Ironton, Ohio with a loan secured by a

mortgage. They took out a second mortgage on the house in 2001. In 2003, they divorced in

Ohio state court. The divorce decree required Thomas to pay Clark $510 per month in child

support, and to convey to Clark his interest in the family home. The decree also required Clark
No. 14-5735
Thomas v. Clark
to pay both mortgages on the home, but did not otherwise require Thomas or Clark to pay

spousal support.

       Thomas and Clark remarried each other a year later, but divorced again in 2007. The

second divorce decree gave Clark primary custody of the children, required Thomas to pay Clark

$369 per month in child support, and required Clark to pay the first mortgage. In addition, this

decree required Thomas and Clark to make equal payments on the second mortgage, but

provided that Clark would receive all proceeds from a sale of the home. As with the first

divorce, neither spouse owed the other spousal support.

       Thomas did not make any payments on the second mortgage. Just over a year after the

second divorce, Clark sold the family home. At that point, Clark discovered that a company

called Auto Now had a judgment lien on the home because Thomas had failed to make payments

on his car. Clark used all of the sale proceeds to pay off Auto Now’s lien as well as the first and

second mortgages.

       Clark later sued Thomas through the divorce action to collect on various debts, including

past-due child support.    The court noted that Thomas had caught up on his child-support

payments, but ordered Thomas to reimburse Clark for his share of the second mortgage ($7,500)

and for the judgment lien ($5,000). R. 52 at 38.

       Rather than reimburse Clark, however, Thomas and his second wife Rebecca filed a joint

petition for Chapter 13 bankruptcy. Clark filed a proof of claim for $12,500—the amount of the

mortgage and lien debts. Thomas and his wife objected, arguing that the claim improperly

treated those debts as domestic-support obligations, which are nondischargeable in bankruptcy

under 11 U.S.C. § 523(a)(5). The bankruptcy court held a hearing and ruled that the debts were




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Thomas v. Clark
domestic-support obligations. The Bankruptcy Appellate Panel of the Sixth Circuit affirmed.

This appeal followed.

       Although our review follows that of the Bankruptcy Appellate Panel, we review the

bankruptcy court’s decision. See In re United Producers, Inc., 526 F.3d 942, 946 (6th Cir.

2008). We review for clear error the bankruptcy court’s factual determination that a debt is a

nondischargeable support obligation. In re Sorah, 163 F.3d 397, 400 (6th Cir. 1998).

       Thomas first challenges the bankruptcy court’s finding that the lien and mortgage debts

are “in the nature of support.” To qualify as a domestic-support obligation, a debt must be,

among other things, “in the nature of alimony, maintenance, or support . . . of [a] spouse, former

spouse, or child of the debtor . . . , without regard to whether such debt is expressly so

designated[.]” 11 U.S.C. § 101(14A)(B). A debt is “in the nature of support” if two conditions

are met: first, “the state court or parties intended to create a support obligation”; and second, the

debt has “the actual effect of providing necessary support.” In re Fitzgerald, 9 F.3d 517, 520

(6th Cir. 1993).

       Here, the bankruptcy court properly examined the language and structure of the two

divorce decrees to determine whether the mortgage debt is in the nature of support. See In re

Calhoun, 715 F.2d 1103, 1107-09 & n.7 (6th Cir. 1983). The first decree ordered Thomas to pay

more child support than the Ohio guidelines required. The state court said that this “deviation is

in the best interests of the children as [Clark] is paying both mortgages on the marital property.”

R. 51 at 25. In the second decree Thomas was ordered to pay less child support, but was also

ordered to pay half of the second mortgage. This change suggests that the mortgage payments

were intended to provide necessary support in the form of keeping Clark and the children in the

family home.



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Thomas v. Clark
       Clark’s testimony strengthens that inference. Clark said that she and Thomas had wanted

the children to remain in the family home so that her parents—who lived next door—could

provide child care. She also said that she could not afford to pay both mortgages without

Thomas’s help. Thus, the bankruptcy court did not clearly err in finding that the parties and the

state court intended that the mortgage debt would serve as a support obligation, and that the debt

actually provided necessary support.

       Thomas offers several responses. He first contends that no support obligation was

intended because neither decree expressly provided for spousal support. By the express terms of

§ 101(14A)(B), however, the state court’s label for an obligation does not determine whether the

obligation is in the nature of support. See 11 U.S.C. § 101(14A)(B); see also Calhoun, 715 F.2d

at 1111. Instead, the bankruptcy court should look to the nature of the obligation to determine if

it was actually meant for support. See Calhoun, 715 F.2d at 1107. Thomas also asserts that the

second divorce decree contemplated a sale of the family home. But he offers no evidence to

refute Clark’s testimony that, at the time of the divorce, she and Thomas intended for the

children to stay in the home.

       Thomas next contends that the mortgage debt was not necessary for domestic support,

because Clark was employed as a surgical technician (she made $16.00 per hour) and because

she sold the house years before Thomas filed for bankruptcy. But again Thomas does not refute

Clark’s testimony that she could not afford to pay the second mortgage on her own. In addition,

as the bankruptcy court observed, the likely reason why the state court ordered that Clark would

receive all proceeds from a sale of the home was to allow her to use that money to buy a new

home for her and the children. And when Thomas failed to pay his portion of the second

mortgage, he decreased the amount of money available for her to do so. Indeed, Clark received



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Thomas v. Clark
no money from the home’s sale after she paid off the mortgages and the lien; she ended up owing

more than $800. R. 50-2 at 4.

       Finally, Thomas says that he was unemployed at the time of the second divorce and could

not afford to pay the debt. But Thomas’s employment status does not change the debt’s nature as

a support obligation. See Fitzgerald, 9 F.3d at 521. Thus, the bankruptcy court did not clearly

err in finding that the mortgage debt was in the nature of support.

       As to the lien debt, Clark testified that neither she, nor the state court, knew about the

judgment lien at the time of the divorce. But the lien also reduced the amount of money that

Clark received from the sale of the family home. As shown above, the state court likely intended

that Clark receive that money to buy a new home. Thus, the lien—which was attached to the

family home, after all—reduced the amount of support that the state court meant to be available

to Clark and the children. That means the bankruptcy court did not clearly err in finding that the

lien debt was likewise in the nature of support.

       Thomas next argues that the debts should be dischargeable because they are excessive.

When a debt is in the nature of support, the full debt is nondischargeable unless the debt “is so

excessive as to be unreasonable under traditional concepts of support.” See id. at 520. The debt

is only unreasonable if it “substantially exceed[s]” the debtor’s present and foreseeable ability to

pay at the time the debt is assumed. See Calhoun, 715 F.2d at 1110. Here, there is no evidence

that any of the state court orders imposed an excessive financial burden on Thomas. Clark

testified that their incomes were roughly equal, apparently despite Thomas’s occasional lay-offs.

The child-support worksheets that accompany both divorce decrees support her testimony.

Finally, as the bankruptcy court noted, the total debt amount is relatively low.         Thus, the

bankruptcy court did not clearly err in finding that the debt amounts are reasonable.



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Thomas v. Clark
       Finally, Thomas objects to the proof of claim on the ground that it was filed against his

co-debtor Rebecca as well as Thomas. He says that Rebecca is not responsible for the debts.

But Thomas did not offer any authority or other support for this objection to this court, the

Bankruptcy Appellate Panel, or the bankruptcy court. “[I]ssues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation, are deemed waived.”

McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997) (internal quotation marks omitted). We

therefore decline to consider this argument.

       The bankruptcy court’s judgment is affirmed.




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