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In re Evans

United States District Court, S.D. Indiana, Indianapolis Division

February 27, 2015

In Re: LISA MARIE EVANS Debtor,
v.
LISA MARIE EVANS, Appellee/Defendant. Bankruptcy Case No. 13-01910-FJO-13. RAYMOND F. EVANS, Appellant/Plaintiff,

ORDER

JANE MAGNUS-STINSON, District Judge.

In June 2013, Appellant/Plaintiff Raymond F. Evans filed a Complaint to Determine Dischargeability of Debt in the bankruptcy proceedings of Appellee/Defendant Lisa Marie Evans. [Filing No. 3-1.] In relevant part, Mr. Evans alleged that Ms. Evans, with intent to defraud and acting under false pretenses, retained an overpayment of child support after the parties' daughter was no longer enrolled in post-secondary education. [Filing No. 3-1 at 1.] Mr. Evans asked the Bankruptcy Court to find Ms. Evans' alleged indebtedness to him non-dischargeable pursuant to the discharge exception set forth in 11 U.S.C. § 523(a)(2)(A).[1] The Bankruptcy Court ruled against Mr. Evans after a bench trial, finding that he had "failed to carry his burden of proof" on this issue. [Filing No. 3-6 at 8.] Mr. Evans appeals that decision to this Court. [Filing No. 1.] For the reasons that follow, this Court affirms the decision of the Bankruptcy Court.

I.

BACKGROUND

The following facts are taken primarily from the Bankruptcy Court's Order at issue on appeal, [Filing No. 3-6], and are undisputed unless otherwise noted.

Mr. Evans and Ms. Evans are the divorced parents of a daughter born in 1990 and a son who was emancipated in 2008. [Filing No. 3-6 at 3; Filing No. 9 at 4.] During the relevant time period, Mr. Evans' wages were subject to an income withholding order issued by the Shelby Circuit Court titled "Agreed Entry on Child Support, College Expenses and Investment Accounts for Minor Children" (the "Support Agreement"). [Filing No. 9 at 4-5.] The Support Agreement provided that Mr. Evans owed Ms. Evans money for, among other things, arrearages, accrued college expenses for both children, and money removed from each child's college Fidelity account. [Filing No. 9 at 4-5.] Their daughter was enrolled in college classes at some point between the time she completed high school and the time she turned 21 years old. [Filing No. 3-6 at 3.] She stopped attending those classes in July 2010. [Filing No. 3-6 at 3; Filing No. 4-1 at 12.] There was very little contact, if any, between Mr. Evans and Ms. Evans or Mr. Evans and his daughter during the relevant time period. [Filing No. 3-6 at 3.] Mr. Evans' wage withholding stopped automatically after his daughter turned 21 years old. [Filing No. 3-6 at 3.]

On October 5, 2012, Mr. Evans filed a motion in state court requesting reimbursement for what he characterized as overpayment of his child support obligations. [Filing No. 3-6 at 3.] On March 6, 2013, Ms. Evans filed a Chapter 13 Bankruptcy Petition, listing Mr. Evans as an unsecured creditor with an unknown amount of debt. [Filing No. 3-6 at 3.] On June 10, 2013, Mr. Evans filed a Complaint to Determine Dischargeability against Ms. Evans, claiming that Ms. Evans' debt from his alleged overpayment should be non-dischargeable. [Filing No. 3-1.]

The Bankruptcy Court held a trial on Mr. Evans' Complaint on February 13, 2014. [Filing No. 3-6 at 1.] Both parties were present with their counsel and testified under oath. [Filing No. 3-6 at 1-2.] On May 27, 2014, the Bankruptcy Court issued its ruling, finding in relevant part as follows:

• 11 U.S.C. § 523(a)(2)(A) required Mr. Evans "to put forth evidence of fraud or false statements; fraud being the misrepresentation of a material fact."
• Mr. Evans "admitted there was virtually no contact at all between the parties, and therefore, no statements were made to him by [Ms. Evans] about [his daughter's] status as a student."
• "[T]here has been no showing by [Mr. Evans] of any false' statement (if any statement at all) made to him by [Ms. Evans] for him to prevail under [11 U.S.C. § 523(a)(2)(A)]."
• Mr. Evans "failed to put forth sufficient factual evidence or case law to support that an affirmative duty existed for [Ms. Evans] to keep him informed about [their daughter's] status as a student."
• "[T]he issue of whether [their daughter] was in fact emancipated during this time period is not properly before this [Bankruptcy] Court."
• Mr. Evans "put on no evidence that [Ms. Evans] knew or was aware that there was an overpayment, and it is still not clear there was an ...

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