Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In Re: John Clemente, Debtor. v. John Clemente

May 23, 2011


The opinion of the court was delivered by: Pisano, District Judge.



Adversary Action No. 09-02039 (MBK)

On May 26, 2010, Bankruptcy Judge Michael B. Kaplan of the United States Bankruptcy Court (the "Bankruptcy Court") denied a request by plaintiff-appellant Linda Clemente ("Plaintiff") to declare that counsel fees incurred by Plaintiff in connection with the bankruptcy proceedings were non-dischargeable under 11 U.S.C. §§ 523(a)(5) and (a)(15). Presently before the Court is an appeal by Plaintiff of that decision. For the following reasons, the decision of the Bankruptcy Court will be affirmed.


Plaintiff and her ex-spouse debtor-defendant John Clemente ("Defendant") engaged in lengthy divorce proceedings in the Superior Court of New Jersey beginning in August of 2003. The parties engaged in extensive litigation to determine financial support obligations in connection with those divorce proceedings. The matter was tried before Honorable Terence P. Flynn, J.S.C., and, on August 7, 2006, the Superior Court entered a judgment of divorce, which was subsequently amended on August 24, 2006. The judgment awarded Plaintiff $2,374,138 in equitable distribution, $14,312 per month in permanent alimony and $387 per week in child support. The judgment further provided that Defendant was responsible to pay $84,211 in counsel fees to Plaintiff's law firm as well as $100,044 for accounting fees incurred by Plaintiff in connection with the divorce proceedings.

On January 17, 2008, Defendant filed a voluntary petition for bankruptcy pursuant to Chapter 11 of the United States Bankruptcy Code. Defendant sought limited relief from the automatic stay provisions of 11 U.S.C. § 362(a) to prosecute an appeal of the divorce court's decision. The Bankruptcy Court granted this relief and Defendant filed an appeal. On November 28, 2008, the Appellate Division denied Defendant's appeal and affirmed the judgment of the trial court. The Appellate Division also granted Plaintiff's motion for $23,000 in counsel fees in connection with the appeal. Defendant appealed the Appellate Division's decision to the Supreme Court of New Jersey. In March of 2009, the Supreme Court denied Defendant's petition for certification and awarded costs to Plaintiff for her opposition.

Meanwhile, in the bankruptcy proceeding, Plaintiff moved to have Defendant's case dismissed for bad faith or, alternatively, for the appointment of a trustee. The Bankruptcy Court appointed an examiner in the matter, who issued a report detailing findings regarding Defendants' assets and business. Based on the examiner's report, the Bankruptcy Court appointed a trustee in the matter. On April 24, 2009, Defendant moved to convert his Chapter 11 case to one under Chapter 7 of the United States Bankruptcy Code. In granting Defendant's motion, the Bankruptcy Court noted Defendant's untimely and delinquent domestic support obligations.

Plaintiff filed an adversary complaint against Defendant on July 14, 2009, asking the Bankruptcy Court declare all debts owed by Defendant related to the divorce proceedings and the bankruptcy proceedings non-dischargeable under 11 U.S.C. §§ 523(a)(5) and (a)(15). In connection with this adversary action, Defendant failed to comply with various discovery requests by Plaintiff, which resulted in the filing of two motions to strike Defendant's answer by Plaintiff and multiple court appearance by counsel. On April 14, 2010, Plaintiff moved for summary judgment. The Bankruptcy Court granted Plaintiff's motion with respect to the debts owed by Defendant related to the prior divorce proceedings. However, the Bankruptcy Court denied Plaintiff's motion with respect to the debts owed by Defendant in connection with the bankruptcy proceeding. On September 9, 2010, Plaintiff filed a Notice of Appeal of the Bankruptcy Court's decision.


This Court has jurisdiction to hear appeals from final orders of the bankruptcy court. 28 U.S.C. § 158(a). Such appeals are a matter of right. Bankruptcy Rule 8013 provides that the district court "may affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree or remand with instructions for further proceedings. Fed. R. Bankr. P. 8013. Appellate courts review "the bankruptcy court's legal determinations de novo, its factual findings for clear error and its exercise of discretion for abuse thereof." In re United Healthcare System, Inc., 396 F.3d 247, 249 (3d Cir. 2005) (quoting In re Trans World Airlines, Inc., 145 F.3d 124, 130-31 (3d Cir. 1998)).


The general rule is that, absent a federal statute or enforceable contract providing for fees, each party to an action must bear his or her own attorney fees. Alyeska Pipeline Service v. Wilderness Society, 421 U.S. 240, 257 (1975) (superseded by statute on other grounds). The Bankruptcy Court recognized this rule when it stated that "[i]nasmuch as there is not an enforceable agreement between the parties regarding counsel fees incurred during the bankruptcy proceedings, Plaintiff, in order to prevail, must establish that such fees are allowed by a federal statute." (Bankruptcy Court Opinion at 5). The Bankruptcy Court then noted three ways to seek an award of counsel fees in a bankruptcy action: (1) an award of fees using the bankruptcy court's equitable power under 11 U.S.C. § 105(a); (2) an award of fees under Bankruptcy Rule 7054*fn1 ; and (3) an award of fees as a sanction under Bankruptcy Rule 9011*fn2 .

Plaintiff first argues that the Bankruptcy Court erred by refusing to apply the holding in In re MacDonald, 69 B.R. 259 (Bankr. D.N.J. 1986), to grant Plaintiff an award of counsel fees incurred by her throughout the bankruptcy proceedings. In that case, the bankruptcy court awarded counsel fees to a debtor's former wife in connection with her adversary action to determine the dischargeability of various debts. Id. at 278. In so doing, that court relied on two cases (In re Dorman, 3 C.B.C.2d 497 (Bankr. D.N.J. 1981) and Matter of Romeo, 16 B.R. 531 (Bankr. D.N.J. 1981)) to state that "[i]t is well settled that legal fees and costs expended by a non-debtor spouse for enforcement of non-dischargeable debts are similarly non-dischargeable." Id. The Bankruptcy Court refused to apply the holding of In re MacDonald, finding that it was decided without reference to the "American Rule" of not awarding counsel fees. Instead, the Bankruptcy Court was guided by the rationale in In re S.S., 271 B.R. 240 (Bankr. D.N.J. 2002), which found no legal basis for awarding counsel fees to a plaintiff for prosecuting a ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.