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11/22/83 MARRIAGE PATRICIA M. LUMBY v. FREDERICK E.

November 22, 1983

IN RE THE MARRIAGE OF: PATRICIA M. LUMBY, PETITIONER-RESPONDENT,
v.
FREDERICK E. LUMBY, JR., APPELLANT



Appeal from a judgment of the circuit court for Sauk county: Robert F. Curtin, Judge.

Gartzke, P.j., Dykman, J. and Gordon Myse, Reserve Judge.

The opinion of the court was delivered by: Dykman

Frederick Lumby appeals from a judgment of divorce. He claims that the trial court erred by excluding his business debts from the marital estate when it made the property division. We hold that the appeal is moot because both parties were discharged in bankruptcy after the judgment was entered. We therefore dismiss the appeal.

Frederick and Patricia Lumby were divorced April 7, 1982. At the hearing, Frederick testified that he had incurred substantial debts in connection with his business both before and during the marriage. As of the time of hearing, he owed business and non-business creditors $217,042. The trial court excluded from the marital estate the real and personal property connected with Frederick's business and his business debts. The court divided the parties' non-business assets equally between them. It assigned the business debts to Frederick and ordered him to pay Patricia $7,118.50 as part of the property division.

Both Patricia and Frederick were subsequently granted discharges in bankruptcy. We ordered the parties to brief the issue whether the discharges had mooted this appeal. Patricia argues that the appeal is moot because the only claim of error involves the trial court's treatment of the business debts. Frederick argues that the appeal is not moot because he reaffirmed his $7,118.50 debt to Patricia.

The bankruptcy court records in Frederick's and Patricia's cases are "capable of accurate and ready determination" by this court, Schlumpf v. Yellick, 94 Wis. 2d 504, 510 n. 8, 288 N.W.2d 834, 838 (1980), and we will take judicial notice of them. The records show that Frederick filed a voluntary bankruptcy petition on January 20, 1983. The bankruptcy court granted him a discharge May 3, 1983, and the estate was closed May 25, 1983. Patricia filed a voluntary bankruptcy petition on February 27, 1983. The bankruptcy court granted her a discharge June 30, 1983, and the estate was closed July 26, 1983. Frederick wrote a letter to Patricia dated January 25, 1983, reaffirming his debt to her in the amount of $7,118.50 or whatever was determined after this appeal. The letter was attached to the schedule of property on Patricia's petition. Frederick did not reaffirm the debt in his own case, however, and the bankruptcy court did not approve his reaffirmation. Frederick stated in a letter to the court asking to be excused from attending the reaffirmation and discharge hearing that he had no debts to reaffirm.

11 U.S.C.S. sec. 727(a) provides in part:

The court shall grant the debtor a discharge unless --

(10) the court approves a written waiver of discharge executed by the debtor after the order for relief under this chapter.

11 U.S.C.S. sec. 524 sets standards for court approval of a debtor's reaffirmation of debts. It provides in part:

(c) An agreement between a holder of a claim and the debtor, the consideration for which, in whole or in part, is based on a debt that is dischargeable in a case under this title is enforceable only to any extent enforceable under applicable non-bankruptcy law, whether or not discharge of such debt is waived, only if --

(1) such agreement was made before the granting of the discharge under section 727, 1141, or 1328 of this title;

(2) the debtor has not rescinded such agreement within 30 days after such ...


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