Bankr. E.D.N.C.: In re Gonyo- Marital Adjustments to CMI

Summary:

The Bankruptcy Administrator sought dismissal of Mrs. Gonyo’s Chapter 7 arguing that she improperly excluded several of her non-filing husband’s expenses as “marital adjustments” from her Current Monthly and also failed to include both the couple’s tax refund and her husband’s incentive pay in that calculation.

In reaching the later conclusion, the bankruptcy court defined “income” as “a gain or recurrent benefit . . . that derives from capital or labor.” In re Sanchez, No. 06-40865, 2006 WL 2038616, at *2 (Bankr. W.D. Mo. 2006) and that her husband’s incentive pay received during the preceding six calendar months was included in CMI.

As to the tax refund, Mrs. Gonyo argue that since it was received outside the six calendar months it was not included in CMI. The bankruptcy court, however, held that Mrs. Gonyo’s portion of the tax refund must be pro rated over 12 months to adjust the actual tax liability deduction in the Means Test.

In regard to the Marital Adjustment, the bankruptcy court held that only those expenses that “do not support, benefit, or otherwise affect household members” (emphasis in the original) and that are “purely personal in character to the non-debtor spouse” (emphasis again in the original) are appropriate . The bankruptcy court rejected Mrs. Gonyo’s contention, from In re Gregory, No. 10-09739-8-JRL, 2011 WL 5902884 (Bankr. E.D.N.C. Aug. 17, 2011), aff’d sub nom. Bankr. Adm’r v. Gregory, 471 B.R. 823 (E.D.N.C. 2012), that expenses not necessary for the “day-to-day functioning of the household” was a controlling factor. Accordingly, the expenses for the RV, the college expenses for two children and the soccer expenses for a third were household expenses that could not be excluded under the marital adjustment.

Lastly, the bankruptcy court held that the failure to include all applicable income and the accumulation of $40,000 in debt in just her name since her prior bankruptcy, raised concerns about abuse under the totality of the circumstances of § 707(b)(3), but that the court was not required to address, since the case would be dismissed under § 707(b)(1).

Commentary:

While Mrs. Gonyo has converted her case to Chapter 13, many of these issues may not have been thrown into such sharp relief if the case had originally been filed with some dividend proposed to the sole unsecured creditor.

For a copy of the opinion, please see:

Gonyo- Marital Adjustments to CMI

About

1. Bachelor of Arts degree in English Literature from Washington University, 1993.

2. Juris Doctor degree from George Washington University, 1996.

Admissions to Practice of Law:

North Carolina Bar, 1996.
Federal District Courts for the Eastern and Middle Districts of North Carolina.

Specialty Certification:

North Carolina State Bar: Certified as a Specialist in Consumer Bankruptcy.

Areas of Practice:

Practice limited to consumer and business debtor bankruptcy law, 1998 to present.

Memberships:

National Association of Consumer Bankruptcy Attorneys (NACBA).
North Carolina Academy of Trial Lawyers (NCATL).
North Carolina Bar Association, Bankruptcy Section.

Lectures prepared and presented:

North Carolina Academy of Trial Lawyers seminar on bankruptcy; Topic: Counseling the Consumer Debtor Prior to Court – C.Y.A. Forms to Help ‘Gird They Loins’; 2001.
Middle District Bankruptcy Seminar; Topic: Preparing Chapter 13 Plans; 2002.
NACBA National Convention; Topic: Efficient Office Practices; 2003.
NACBA National Convention; Topic: Chapter 7 vs. Chapter 13 Debates; 2004.
Middle District Bankruptcy Seminar; Topic: Chapter 7 & 13 Hot Issues; 2004.

Positions held:

NACBA National Convention; Convention Chair; 2008.
NACBA National Convention; Panel Moderator: Topic: Basic Bankruptcy Issues; 2008.
NACBA National Convention; Panel Moderator; Topic: Chapter 13-Disposable Income and Other Issues; 2007.
NACBA National Convention; Panel Moderator; Topic: Representing Members of the Military and Their Families; 2007.
NACBA, Member of National Board of Directors, 2006 to present.
NCATL, Chair of the Bankruptcy Section, 2003 to 2007.
NACBA, Chair of the North Carolina Section, 2003 to 2007.
NC Bar Association, Bankruptcy Section, Bankruptcy Council Member, 2004 to present.

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