            United States Bankruptcy Appellate Panel
                           For the Eighth Circuit
                       ___________________________

                               No. 13-6012
                       ___________________________

In re: Laura Elizabeth Mehlhaff, also known as Laura N. Mehlhaff, also known as
                             Laura Noble Mehlhaff

                             lllllllllllllllllllllDebtor

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

                           Laura Elizabeth Mehlhaff

                       lllllllllllllllllllllDebtor - Appellant

                                         v.

                                Forrest C. Allred

                       lllllllllllllllllllllTrustee - Appellee
                                    ____________

                 Appeal from United States Bankruptcy Court
                   for the District of South Dakota - Pierre
                                ____________
                            Submitted: May 15, 2013
                              Filed: June 4, 2013
                                ____________


Before FEDERMAN, Chief Judge, SCHERMER and SHODEEN, Bankruptcy
Judges.

                                  ____________

FEDERMAN, Chief Judge

      Debtor Laura Elizabeth Mehlhaff appeals from the Bankruptcy Court’s
Order1 finding that her prepetition claim against her former spouse for alimony is
property of her bankruptcy estate, and ordering her to turn that claim over to the
Trustee. For the reasons that follow, we AFFIRM.

                          FACTUAL BACKGROUND

      At the time the Debtor filed her Chapter 7 bankruptcy petition on June 19,
2012, the Debtor’s former spouse was obligated under a prepetition divorce decree
to pay her alimony in the amount of $200 per month until their minor child turns
eighteen years old. According to the Debtor, the minor child will turn eighteen in
December 2014.2 The Debtor properly included the alimony award on her
schedules as both an asset on Schedule B and income on Schedule I, and did not
claim any portion of the alimony exempt. The Chapter 7 Trustee filed a motion for
turnover of the alimony award, which the Debtor opposed. The Trustee then filed
a Motion for Judgment on the Pleadings, to which the Debtor also responded.


      1
          The Honorable Charles L. Nail, Jr., United States Bankruptcy Judge for
the District of South Dakota.
      2
        In addition to the alimony, the former spouse was also obligated to pay the
Debtor an additional $219 in child support. The child support is not at issue here.

                                         2
Because the pleadings included several documents as attachments, the Court
treated the Motion as a motion for summary judgment and allowed the parties to
present any additional materials pertinent to a motion for summary judgment
pursuant to Federal Rule of Civil Procedure 12(d).3 As authorized by the Court,
the Trustee filed a supplement to respond to the Debtor’s arguments. No one
asserts that the Bankruptcy Court committed procedural error in treating the
Motion as one for summary judgment.

      Relying on its recent decision in In re Steen,4 the Bankruptcy Court held that
the Debtor’s alimony award was property of her bankruptcy estate pursuant to 11
U.S.C. § 541(a)(1), granted summary judgment in favor of the Trustee, and ordered
the Debtor to turn her alimony award over to the Trustee. The Debtor appeals.

                            STANDARD OF REVIEW

      Rule 56(a) provides that “[t]he court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”5 Here, there is no dispute as to
the material facts; rather, the Debtor asserts that the Bankruptcy Court erred in its
application of the law to the facts. Our review is, therefore, de novo.6




      3
          Fed. R. Civ. P. 12(d), made applicable here by Fed. R. Bankr. P. 7012(b).
      4
          2012 WL 1252668 (Bankr. D. S.D. April 13, 2013).
      5
          Fed. R. Civ. P. 56(a), made applicable here by Fed. R. Bankr. P. 7056.
      6
        Peter v. Wedl, 155 F.3d 992, 996 (8th Cir. 1998) (review of the bankruptcy
court’s grant of summary judgment is de novo).

                                          3
                                    DISCUSSION

       The bankruptcy estate includes “all legal or equitable interests of the debtor
in property as of the commencement of the case,” wherever located and by
whomever held.7 The nature and extent of a debtor’s interest in property are
determined by state law.8 However, once the nature and extent of the debtor’s
interest is determined under state law, federal bankruptcy law dictates to what
extent that interest is property of the estate.9

       Although § 541(a)(1) is broad and is intended to include property of all
descriptions,10 certain types of property are expressly excluded from the
bankruptcy estate under § 541.11 Such excluded property includes powers that the
debtor may exercise solely for the benefit of another, interests as a lessee under
certain types of leases, and some types of accounts for retirement or education
purposes.12 In addition, as the Bankruptcy Court pointed out, property that is
subject to a restriction on transfer that is enforceable under “applicable



      7
           11 U.S.C. § 541(a)(1).
      8
           Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 59 L.Ed.2d 136
(1979).
      9
        N.S. Garrott & Sons v. Union Planters Nat’l Bank of Memphis (In re N.S.
Garrott & Sons), 772 F.2d 462, 466 (8th Cir. 1985).
      10
          In re Cent. Arkansas Broad. Co., 68 F.3d 213, 214 (8th Cir. 1995) (“The
scope of [§ 541(a)(1)] is very broad and includes property of all descriptions,
tangible and intangible, as well as causes of action.”) (quoting Whetzal v. Alderson,
32 F.3d 1302, 1303 (8th Cir. 1994)).
      11
           11 U.S.C. § 541(b), (c)(2), and (d); In re Steen, 2012 WL 1252668 at *2.
      12
        11 U.S.C. § 541(b)(1), (2), (3), (5), (6), and (7); In re Steen, 2012 WL
1252668 at *2.

                                          4
nonbankruptcy law,” such as spendthrift trusts and social security benefits, are also
expressly excluded from the bankruptcy estate.13

       As the party asserting that the alimony award is property of the estate subject
to turnover, the Trustee bears the burden of proving that it is.14 If the Trustee is
able to make a prima facie case, the burden shifts to the Debtor to show that the
asset is excluded from the estate, although the final burden rests with the
proponent.15 Finally, if property is determined to be property of the estate, §
522(b) of the Bankruptcy Code permits a debtor to withdraw some of it by a claim
of exemption, as determined by state law or § 522(d). South Dakota has opted out
of the federal exemption scheme,16 and so the Debtor is limited to the exemptions
provided by South Dakota law.

       As stated, the issue here is whether the Debtor’s right to ongoing alimony,
pursuant to the prepetition divorce decree, is property of her bankruptcy estate.
The Debtor relies primarily on Kelly v. Jeter17 which, applying Nebraska law, held
that alimony payments received within the 180 days postpetition are not property
of the estate under § 541(a)(5)(B). Section 541(a)(5)(B) provides that the estate
includes:

      13
          In re Steen, 2012 WL 1252668 at *2 (citing 11 U.S.C. § 541(c)(2);
Patterson v. Shumate, 504 U.S. 753, 756–765, 112 S.Ct. 2242, 119 L.Ed.2d 519
(1992) (spendthrift trust); Wear v. Green (In re Green), 967 F.2d 1216, 1217 (8th
Cir.1992) (spendthrift trust); Carpenter v. Ries (In re Carpenter), 614 F.3d 930,
936–37 (8th Cir .2010) (social security benefits)).
      14
         Evans v. Robbins, 897 F.2d 966, 968 (8th Cir. 1990); DeBold v. Case (In
re Tri–River Trading, LLC), 329 B.R. 252, 263–64 (B.A.P. 8th Cir. 2005), aff'd,
452 F.3d 756 (8th Cir. 2006).
      15
           Evans v. Robbins, 897 F.2d at 968; Tri-River Trading, 329 B.R. at 263.
      16
           S.D. Codified Laws § 43-45-13.
      17
           Kelly v. Jeter (In re Jeter), 257 B.R. 907 (B.A.P. 8th Cir. 2001).

                                            5
      Any interest in property that would have been property of the estate if
      such interest had been an interest of the debtor on the date of the filing
      of the petition, and that the debtor acquires or becomes entitled to
      acquire within 180 days after such date . . . as a result of a property
      settlement agreement with the debtor’s spouse, or of an interlocutory
      or final divorce decree.18

Thus, § 541(a)(5)(B) provides that, in addition to rights a debtor holds as of the
date of bankruptcy, the estate also includes rights arising out of a property
settlement entered within 180 days after bankruptcy. In Kelly v. Jeter, the BAP
held that alimony payments received within the 180 days postpetition were not
property of the estate by virtue of § 541(a)(5)(B) because “on its face and by its
plain language, § 541(a)(5)(B) does not reach alimony awards.” The Debtor
asserts that, as in Kelly v. Jeter, her alimony payments are not property of the
estate by virtue of § 541(a)(5)(B).

       As the Bankruptcy Court did, we agree with the Debtor that her alimony
award is not property of the estate by virtue of § 541(a)(5)(B). But, the question
here, which the panel in Kelly v. Jeter was not called upon to decide, is whether,
applying South Dakota law, the Debtor’s alimony award is property of the estate
under the expansive category of “all legal or equitable interests of the debtor in
property as of the commencement of the case” in § 541(a)(1). Critically, the right
to such alimony did not vest after the bankruptcy, but before, when the judgment
awarding alimony to the Debtor was entered. Therefore, § 541(a)(5)(B) and Kelly
v. Jeter are beside the point.

    Section 541(a) includes causes of action existing at the time of the
commencement of the bankruptcy case.19 When a debtor has obtained a


      18
        11 U.S.C. § 541(a)(5)(B).
      19
          In re Cent. Arkansas Broad. Co., 68 F.3d at 214 (“The scope of [§
541(a)(1)] is very broad and includes property of all descriptions, tangible and
                                          6
prepetition judgment against another party, the estate succeeds to all rights under
such judgment.20 And, upon the filing of a bankruptcy petition, the trustee steps
into the debtor’s shoes and takes whatever interests the debtor has on the petition
date.21 On the petition date here, the Debtor had an interest in a prepetition
judgment awarding her alimony payments, and the Trustee takes whatever interest
she has in the alimony award.

       The Debtor cites no South Dakota case holding that the right to alimony is
not an interest in property. Rather, the Supreme Court of South Dakota has held
that a person’s right to receive alimony payments is a right which can be subject to
attachment of an attorney’s lien. In Jasper v. Smith,22 the attorney who represented
the wife through part of her divorce action served notice of his attorney’s lien
against the wife’s right to future alimony payments. The trial court ruled that the
attorney’s lien could not attach to the alimony on public policy grounds.
Reversing, the Supreme Court ruled that the attorney’s lien could attach to those
payments, public policy notwithstanding:

      This Court has not previously addressed the issue of whether
      attachment of an attorney’s lien to an alimony award violates the
      public policy of this state. We can find nothing in our review of the

intangible, as well as causes of action.”) (quoting Whetzal v. Alderson, 32 F.3d
1302, 1303 (8th Cir. 1994)).
      20
         5 Collier on Bankruptcy ¶ 541.07[4] (Alan N. Resnick & Henry J.
Sommer eds., 16th ed.); In re Tradewinds Airlines, Inc., 2009 WL 393858 at *3
(Bankr. S.D. Fla. Feb. 10, 2009) (“As the sole holder of the Judgment entered in
the North Carolina action, TradeWinds has both a legal and equitable interest in
the Judgment. Where a cause of action belonging to the debtor has been merged
into judgment prior to bankruptcy, the estate succeeds to all rights under such
judgment.”) (citing Collier; internal quotation marks omitted).
      21
         Stumpf v. Albracht, 982 F.2d 275, 277 (8th Cir. 1992); 5 Collier on
Bankruptcy, ¶ 541.07.
      22
           540 N.W.2d 399 (S.D. 1995).
                                         7
      constitution, statutes, and case law of this state, however, which
      would prohibit an attorney’s lien against an award of alimony
      provided a valid contract for fees existed between attorney and client.
      An examination of the statutes shows the legislature has seen fit to
      exempt certain property from the attachment process in SDCL ch. 43-
      45 but alimony is not one of them. Under SDCL 28-7-16, payments
      made to aid dependent children are also protected from attachment.
      The existence of these statutes indicates the legislature knows how to
      exempt property from attachment of a lien when it deems it in the best
      interest of the state to do so. See Sander v. Geib, Elston, Frost Pro.
      Ass’n, 506 N.W.2d 107, 124 (S.D.1993) (showing when legislature
      wants to include an entity as a beneficiary of its enactments it also
      knows how to do so). See also Last v. Last, 438 N.W.2d 122, 123
      (Minn.Ct.App.1989) (court found statute which listed categories of
      property as exempt from garnishment, but which did not list spousal
      maintenance, did not preclude attachment of attorney's lien).23

       We agree with the Bankruptcy Court that, if alimony is the kind of property
right to which a lien can attach, it is the kind of property right that becomes
property of the estate when a bankruptcy is filed. And, as the Bankruptcy Court
held, the fact that the award is modifiable only affects the amount of alimony the
bankruptcy estate might ultimately receive, not the estate’s right to receive it.24




      23
           Id. at 403-04 (footnote omitted; emphasis added).
      24
         Law v. Stover (In re Law), 336 B.R. 780, 782 (B.A.P. 8th Cir. 2006), cited
in Wetzel v. Regions Bank, 649 F.3d 831, 835 (8th Cir. 2011) (“Property of the
estate includes contingent interests in future payments.”). Similarly, courts have
even held that an annuity payable in installments for the debtor’s lifetime is
property of the estate, subject only to available exemptions. See, e.g., In re Hughes,
318 B.R. 704 (Bankr. W.D. Mo. 2004) (holding that debtor’s right to receive
payments under annuity purchased in connection with settlement of prepetition
personal injury claim was property of the estate); see also In re Bonuchi, 322 B.R.
868 (Bankr. W.D. Mo. 2005) (determining whether annuity purchased pursuant to
a settlement on a workers’ compensation claim was exempt, thus presuming that it
was property of the estate).

                                           8
       The Debtor asserts that the purpose of an alimony award – often to provide a
spouse with assistance in obtaining the necessities of life until the spouse is able to
do so independently – takes such an award out of the purview of § 541(a)(1). But
the purpose of the alimony award, however laudable, does not determine whether it
is “an interest in property” under the applicable state law. Many judgments – such
as personal injury judgments, for example – are awarded to provide a party with
future income or to assist the party with future necessities of life, but such
judgments are nevertheless property of the estate, albeit sometimes protected by
exemptions.25

       The Debtor also asserts that future alimony awards should not be property of
a debtor’s bankruptcy estate for public policy reasons, arguing that alimony should
be treated as a “personal” – not property – right.26 Although the panel in Kelly v.
Jeter mentioned policy reasons in support of its holding that spousal maintenance
is not property of the estate by virtue of Nebraska law and § 541(a)(5)(B), courts
should generally turn to public policy only as a tool in interpreting ambiguous
laws, not as a basis for achieving a result contrary to such laws. Here, we conclude
that § 541(a)(1) is unambiguously broad enough to include alimony awards,
provided that such an award is considered to be an “interest in property” under

      25
          See, e.g., In re Abdul-Rahim, 472 B.R. 904, 906 (Bankr. E.D. Mo. 2012)
(“A personal injury claim is part of a bankruptcy estate insofar that it is a legal and
equitable interest of a debtor.”), aff’d 477 B.R. 747 (B.A.P. 8th Cir. 2012), appeal
docketed, No. 12-3448 (8th Cir. Oct. 17, 2012) (appealed on the issue of whether
personal injury claims are exempt under Missouri law, not whether they are
property of the estate); In re Colombo, 325 B.R. 587, 594 (Bankr. N.D. Iowa 2005)
(“A personal injury claim arising pre-petition becomes property of the estate in its
entirety,” regardless of whether the claim is unliquidated on the date of filing).
      26
          See In re Wise, 346 F.3d 1239 (10th Cir. 2003) (concluding that spousal
maintenance was a “personal statutory right” under Colorado law); In re Mitchem,
309 B.R. 574 (Bankr. W.D. Mo. 2004) (following Wise, and holding that
maintenance was not an asset of the bankruptcy estate because it was a personal
right to income in the future and debtor’s right to receive it did not vest until each
maintenance payment was due and payable).

                                          9
applicable state law. The Debtor has not cited any South Dakota law suggesting
that alimony is anything other than an interest in property. We are not persuaded
by the Tenth Circuit’s decision In re Wise,27 cited by the Debtor, because that case
interpreted Colorado law. In South Dakota, when the Supreme Court said that
alimony was not exempt from the attachment of a lien under South Dakota
Statutes, and expressly suggested that if the legislature wanted it to be exempt, it
knew how to do so, the Court clearly indicated that it views alimony as a type of
attachable property right.28 And, significantly, the South Dakota Supreme Court
expressly rejected public policy as a basis to protect alimony from at least certain
kinds of creditors.29

       It is also noteworthy that Congress has provided a specific exemption for
future alimony payments, based no doubt on the presumption that such right would
be treated as an asset of the estate.30 Unfortunately for South Dakota debtors, their
legislature has not chosen to favor them with a similar exemption.31 That fact,
however, does not alter our conclusion that an award in existence on the date of the
bankruptcy filing is an asset of the debtor’s estate. 32

      27
           346 F.3d 1239.
      28
           Jasper v. Smith, 540 N.W.2d at 403-04.
      29
           Id.
      30
           11 U.S.C. § 522(d)(10)(D).
      31
           South Dakota has opted out of the federal exemption scheme, S.D.
Codified Laws 43-45-13, and as discussed in Jasper v. Smith, the South Dakota
legislature has not expressly provided an exemption for alimony, per se.
      32
          We note that, in contrast to alimony, child support would not likely be
property of the estate because, under South Dakota law, child support is for the
child’s benefit and is not considered to be a debt due the custodial parent. Vander
Woude v. Vander Woude, 501 N.W.2d 361 (S.D. 1993) (citing Peterson v.
Peterson, 434 N.W.2d 732, 738 (S.D. 1989)); Jasper v. Smith, 540 N.W.2d 3at
405. See also In re Steen, 2012 WL 1252668 at *4.
                                         10
       In any event, the issue here is whether South Dakota law views a right to
alimony as anything other than “an interest of the debtor in property.” As stated
above, the Debtor here has not shown that the right to alimony payments is
different from any other stream of payments someone may have been ordered to
pay to her under South Dakota law. Therefore, we conclude that it fits within the
broad definition under § 541(a)(1), and is not expressly excluded by § 541(b) or
(c)(2). It is, therefore, property of the estate, subject to any exemptions the Debtor
may have under South Dakota law. The Bankruptcy Court’s Order is, therefore,
AFFIRMED.
                              ______________________




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