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In re Mitchell

October 16, 2009

IN RE: KATHRYN RENEE MITCHELL, A/K/A KATHY MITCHELL DEBTOR.
BENJAMIN MITCHELL, PLAINTIFF-APPELLANT, DANIEL P. MITCHELL, PLAINTIFF,
v.
KATHRYN BIGELOW, DEFENDANT-APPELLEE,



Appeal from the United States Bankruptcy Court for the Northern District of Iowa

The opinion of the court was delivered by: Kressel, Chief Judge.

Submitted: September 17, 2009

Before KRESSEL, Chief Judge, FEDERMAN and MAHONEY, Bankruptcy Judges.

Benjamin Mitchell appeals from the bankruptcy court's order and judgment determining that the defendant's debt to him is not excepted from her discharge. For the reasons discussed below, we reverse and remand to the bankruptcy court for further proceedings.

BACKGROUND

Kathryn Bigelow is the debtor in a chapter 7 case. Daniel P. Mitchell is Kathryn's ex-husband. Benjamin Mitchell is Daniel's son and Kathryn's former stepson. In September of 2002, Benjamin alternated between living with his mother and with his father and stepmother. On September 15, 2002, there was a physical altercation that involved Benjamin and Kathryn. As a result of the physical altercation, Benjamin hurt his arm, which resulted, at a minimum, in a permanent scar. The Department of Human Services conducted an investigation and found that Kathryn was guilty of child abuse. After that, Benjamin lived with his mother, Laurie Novak Town.

Kathryn filed a chapter 7 bankruptcy petition on October 10, 2005. In her schedules, she listed Daniel as a creditor, gave an address for him in Cedar Rapids, indicated the date that the debt was incurred simply as "2002," and described the consideration only as "Ex-Husband." She listed the amount of the debt as $1.00. Daniel's name and address were also included by the debtor on her mailing matrix. Benjamin was not included on any of the debtor's schedules and his name and address did not appear on the debtor's mailing matrix.

The deadline to file a complaint to determine the dischargeability of a debt under 11 U.S.C. § 523(c) was January 13, 2006 and the debtor received her discharge on February 3, 2006. Benjamin turned 18 years of age on November 30, 2006. The complaint commencing this action was filed on October 8, 2007.

The complaint by the two plaintiffs, Daniel and Benjamin, included requests for determinations of exceptions to discharge on unrelated claims. Benjamin alleged that he had been assaulted by the defendant on September 15, 2002; that the defendant's actions were willful and malicious, which would have given rise to an exception to discharge under 11 U.S.C. § 523(a)(6); that he did not have actual knowledge of the case in time to timely file a request for a determination of dischargeability under § 523(a)(6); and that his claim should be excepted from discharge pursuant to § 523(a)(3). He also asked that the bankruptcy court authorize him to bring a claim in state court or toll the statute of limitations.*fn1

Daniel claimed that he was a plaintiff in an action against the defendant in state court, which he had dismissed and he made no allegation of any grounds for excepting his debt from discharge other than a reliance on § 523(a)(3). He asked for the same relief that Benjamin did.

The defendant made a motion to dismiss the complaint as to both plaintiffs on the basis that the complaint was time-barred. The bankruptcy court granted the motion as to Daniel but denied it as to Benjamin. See Mitchell v. Bigelow (In re Bigelow), 393 B.R. 667 (B.A.P. 8th Cir. 2008) (affirming bankruptcy court's order dismissing Daniel Mitchell's complaint against the debtor and its decision denying his motion to amend that order). After a trial, the bankruptcy court entered an order and judgment in which it effectively determined that Benjamin's debt was not excepted from Kathryn's discharge. Benjamin appeals.

STANDARD OF REVIEW

This appeal turns on the proper legal interpretation of § 523(a)(3) and therefore our review is de novo. The CIT Group / Equip. Fin., Inc. v. M & S Grading, Inc. (In re M & S Grading, Inc.), 457 F.3d 898 (B.A.P. 8th Cir. 2006) ...


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