Harvey J Guikema and Debra L Guilema

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UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: 	:
: 	Case No. 04-55750
Harvey J. Guikema and 	:
Debra L. Guikema, 	: 	Chapter 7
: 	Judge Hoffman
Debtors. 	:
MEMORANDUM OPINION
This contested matter arises from the objection (“Objection”) filed by Susan L. Rhiel, the
Chapter 7 trustee (“Trustee”), to Debra L. Guikema’s claim of an exemption in a VALIC retirement
annuity (“Annuity”). Under § 2329.66(A)(10)(b) of the Ohio Revised Code, a “person’s right to
receive a payment under any pension, annuity or similar plan” is exempt to the extent that the
payment is “reasonably necessary for the support of the person and the person’s dependents.” Ohio
Rev. Code Ann. § 2329.66(A)(10)(b) (Anderson 2001 & Supp. 2003) ( “Ohio Exemption Statute”).
In determining the exemptibility of retirement funds under either the Ohio Exemption Statute or its
federal counterpart, 11 U.S.C. § 522(d)(10)(E) (“Federal Exemption Statute”), bankruptcy courts
This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: April 14, 2005
____________________________________________________________
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have uniformly applied the 11-factor test approved by the Sixth Circuit Bankruptcy Appellate Panel
(“BAP”) in Hamo v. Wilson (In re Hamo), 233 B.R. 718, 723 (B.A.P. 6th Cir. 1999) to assess
whether the funds are reasonably necessary for the support of debtors and their dependents. Having
considered the factors listed by the BAP in Hamo, the Court concludes that the Annuity is not
reasonably necessary for the Debtors’ maintenance and support. The factors figuring prominently
in the Court’s analysis are the Debtors’ age and good health, their current and anticipated future
income, their anticipated retirement income from other sources, and, most importantly, their ability
to replace the Annuity and save additional sums for retirement if they make reasonable adjustments
to their current budget. In reaching the conclusion that the Annuity may not be exempted under
Ohio Rev. Code § 2329.66(A)(10)(b), the Court rejects the Debtors’ contention that the “reasonably
necessary” language contained in both the Ohio and Federal Exemption Statutes was primarily
designed to preclude high-salaried professionals and executives from exempting retirement funds
and thus should not limit Mrs. Guikema’s exemption in this case.
This memorandum opinion constitutes the Court’s findings of fact and conclusions of law.
Fed. R. Civ. P. 52 (made applicable here by Fed. R. Bankr. P. 7052 and 9014).
I. Jurisdiction
The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the
general order of reference entered in this district. This is a core proceeding. 28 U.S.C. § 157(b)(2).
II. Factual and Procedural Background
A. 	The Debtors and Their Employment History
Harvey and Debra Guikema (collectively, “Debtors;” individually, “Mr. Guikema” or “Mrs.
Guikema”) filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code on April 14,
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2004 (“Petition Date”). 	As of the Petition Date, Mrs. Guikema was 50 years old and had been
employed as a registered nurse at Grady Memorial Hospital (“Grady Memorial”) in Delaware, Ohio
for 13 years. At the evidentiary hearing on the Objection (“Hearing”), Mrs. Guikema testified that
she earns approximately $60,000 a year and receives regular, annual increases in salary.
Mr. Guikema is 52 years old and currently is self employed as a photographer. His monthly
net income is approximately $300. He has been so employed since the closing of Focal Point, a
photography shop in Delaware that Mr. Guikema operated along with a business partner. It was the
failure of this start-up business that precipitated the Debtors’ Chapter 7 filing. As of the date of the
Hearing, Mr. Guikema also worked as salesperson in training—on a “commission-only” basis—for
NRC Corporation (“NRC”), a collection agency, but had yet to receive any commission income from
NRC. 	Mr. Guikema anticipated that he would leave his position with NRC shortly and seek
alternative employment. Before launching the Focal Point venture, Mr. Guikema worked for Cord
Camera, a large chain of camera stores based in central Ohio. While employed there, Mr. Guikema
contributed to Social Security.
The Debtors are in good health. They have no dependents; both of their children are married
and attend post-graduate institutions.
B. 	The Debtors’ Assets and Liabilities
The Debtors own a single-family residence in Delaware, Ohio, which they value in their
schedules at $135,000 (“Residence”). The Residence is over-encumbered: Delaware County Bank
and Skybank hold, respectively, first and second mortgages on the property securing obligations
totaling approximately $165,000. At the Hearing, Mrs. Guikema testified that the Debtors intend
to remain in the Residence and had negotiated reaffirmation agreements with the first and second
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mortgage holders. 	Debtors’ combined monthly payment on these two mortgages approximates
$1,650.
The schedules of assets and liabilities filed by the Debtors list total assets of $189,632 and
total liabilities at $303,510. Debtors’ liabilities include secured debt of $171,300 and $132,210 in
unsecured indebtedness, consisting of $38,600 in priority tax debt owing to the Internal Revenue
Service and the State of Ohio and $93,610 in nonpriority debt. More than two-thirds of the Debtors’
nonpriority, unsecured debt is business-related, having been incurred in connection with Mr.
Guikema’s failed photography-shop venture.
In addition to the Residence, the Debtors list the following assets in their schedules:
Asset 	Value
Cash/bank accounts 	$332
Household goods 	$1,800
Family books and pictures 	$100
Clothing and bedding 	$200
Jewelry 	$400
Whole-life insurance 	$1,100
Annuity 	$19,000
Profit sharing plan account 	$28,000
Automobile 	$2,000
Camera equipment 	$1,200
Partnership bank account 	$350
Partnership business assets 	$150
Total......................................... 	$54,732
See Schedule B - Personal Property.
Aside from the Residence, the only significant assets listed in the Debtors’ schedules are the
Annuity and Mrs. Guikema’s interest in a profit sharing plan sponsored by Grady Memorial (“PSP
Account”). The Annuity is a tax-sheltered retirement account valued at $19,194.90 as of March 31,
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1At the conclusion of the Hearing, the Court directed the parties to supplement the record by
providing account balances for the Annuity and the PSP Account as well as documentation
establishing projected distributions to the Debtors at retirement from the Annuity, the PSP Account
and Social Security. 	The Trustee filed a document entitled “Submission of Exhibits for
Determination of Trustee’s Objection to Claim of Exempt Property” (Doc. 35) (“Trustee’s
Submission”), which included the following exhibits:
Trustee
Exhibit (“Ex.”) 	Document
1 	Account statement for Mrs. Guikema as of March 31, 2004 for both the
Annuity and PSP Account;
2 	Annuity payment comparison (assuming distributions from the PSP Account
only);
3 	Annuity payment comparison (assuming distributions from both the PSP
Account and Annuity);
4 	Estimated Social Security benefits for Mrs. Guikema; and
5 	Estimated Social Security benefits for Mr. Guikema.
2The record is silent as to the source of this payment and the date it was made.
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2004. Trustee Ex. 1.1 AIG VALIC manages the Annuity, which is invested in a series of mutual
funds on a percentage basis. Id. Mrs. Guikema contributed $100 a month to the Annuity during the
first quarter of 2004 and has contributed $12,050 over the life of the Annuity. Id.
The PSP Account was valued at $28,834.92 as of March 31, 2004. Id. AIG VALIC also
manages the PSP Account, which, like the Annuity, is invested in a series of mutual funds on a
percentage basis. Id. All contributions to the PSP Account (aside from an initial $1,127.45 transfer
to the account 2) have come from Grady Memorial, which has contributed $20,125.20 to the PSP
Account since its inception. 	During her 13-year tenure at the hospital, Grady Memorial has
contributed an annual average of approximately $1,550 to the PSP Account. No suggestion was
made at the Hearing that Grady Memorial would cease making these contributions to the PSP
Account in the future.
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3Two of the exhibits attached to the Trustee’s Submission appear to have been mislabeled.
Trustee Ex. 2 purports to set forth a projected future payment stream from the “Profit Sharing Plan
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C. 	The Debtors’ Current Income and Expenses
Debtors’ Schedule I lists total, net monthly income of $3,714.36. 	Schedule I - Current
Income of Individual Debtor(s). Their Schedule J lists the following monthly expenses:
Expense 	Amount
Rent or home mortgage payment 	$800
Utilities: Electricity and heating fuel 	$250
Water and sewer 	$60
Telephone 	$120
Home maintenance (Repairs and upkeep) 	$50
Food 	$400
Clothing 	$75
Laundry and dry cleaning 	$50
Medical and dental expenses 	$250
Transportation (not including car payments) 	$200
Recreation, clubs and entertainment, newspapers, magazines, etc. 	$100
Charitable contributions 	$75
Insurance:
Life 	$50
Auto 	$65
Installment Payments:
Auto 	$180
Other: Delaware County Bank, Second Mortgage 	$850
Other: School or work lunches 	$125
Other: Internal Revenue Service 	$500
TOTAL MONTHLY EXPENSES 	$4,200
See Schedule J - Current Expenditures of Individual Debtor(s).
D. 	The Debtors’ Projected Future Income
According to the Trustee’s Submission, at the time Mrs. Guikema reaches age 65 the
Annuity and PSP Account will have, respectively, cash values of $25,798.94 and $40,316.83.
Trustee Exs. 2 and 3.3 The Trustee’s Submission also reflects that at age 65 Mrs. Guikema will
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only.” But the projected $25,798.94 future value of the PSP Account (as of the date Mrs. Guikema
reaches age 65) contained in Trustee Ex. 2 is approximately $3,000 less than its current value of
$28,834.92, which makes no sense given the assumed annual growth rate of 2%. 	Thus, the
projection set forth in Trustee Ex. 2 must have been intended to refer solely to the Annuity, given
its current value of $19,194.30 and the assumed future annual growth rate of 2%. Similarly, the
projected $40,316.83 value contained in Trustee Ex. 3, which purports to state the value of “both
[the PSP Account] and [A]nnuity” (as of the date that Mrs. Guikema reaches age 65), is nearly
$8,000 less than their combined, current value of $48,029.22. The projection contained in Trustee’s
Ex. 3 accordingly must have been intended to refer solely to the PSP Account, given its current
value of $28,834.92 and assumed annual growth rate of 2%.
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receive monthly distributions of $149.77 from the Annuity and $234.06 from the PSP Account. Id.
The projections of the future values of the Annuity and the PSP Account and the anticipated
distributions from these funds are conservative because they assume (1) an annual growth rate of
only 2%; (2) no additional contributions to the Profit Sharing Plan will be made by Grady Memorial;
and (3) no additional retirement savings by Mrs. Guikema. Id. The Trustee’s Submission further
provides that Mr. and Mrs. Guikema, upon reaching the age of 66, will receive monthly Social
Security benefits of $1,138 and $1,675, respectively. Trustee Exs. 4, 5.
III. Arguments of the Parties
The Trustee asserts that “no portion of the [Annuity is] reasonably necessary [for the
Debtor’s maintenance and support] pursuant to the standards established by the case law applying
the [Ohio Exemption] [S]tatute.” Objection at 1. Weighing against a finding that the Annuity is
reasonably necessary, the Trustee argues, are the Debtors’ age (both are in their early 50s and have
nearly 15 years to work before retirement), their good health, the fact that they have no dependents,
their anticipated retirement income (from both Social Security and the PSP Account) and their
discharge of over $90,000 in unsecured debt.
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The Debtors argue that the Ohio Exemption Statute was not intended to limit exemption
claims by debtors—like the Guikemas—who have retirement assets totaling less than $50,000.
Rather, they contend that the “reasonably-necessary-for-maintenance-and-support” limitation
contained in both the Ohio and Federal Exemption Statutes was designed to thwart exemption claims
made by high-salaried professionals and executives who accumulate substantial retirement assets
and attempt to evade the claims of their creditors by taking compensation in the form of retirement
benefits instead of straight salary. Thus, the Debtors maintain that the Court need not undertake an
analysis of the factors set forth in Hamo. Debtors argue, in the alternative, that application of the
factors listed in Hamo warrants a finding that the Annuity is exempt in its entirety. Given their age
and limited earning capacity, the Debtors have a less sanguine view than the Trustee of their ability
to meet their financial needs at retirement. They assert that even the approximate $47,000 total
value of the Annuity and the PSP Account will be “insufficient for reasonable support of [their]
retirement needs.” Response to Objection to Claim of Exemption, ¶ 1.
IV. Legal Analysis
A. 	The Bankruptcy Estate
The filing of a petition under the Bankruptcy Code creates an estate consisting of “all legal
or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. §
541(a)(1). See Owen v. Owen, 500 U.S. 305, 308 (1991) (“An estate in bankruptcy consists of all
the interests in property, legal and equitable, possessed by the debtor at the time of filing, as well
as those interests recovered or recoverable through transfer and lien avoidance provisions.”); Forbes
v. Lucas (In re Lucas), 924 F.2d 597, 600 (6th Cir.), cert. denied, 500 U.S. 959 (1991) (“The filing
of a bankruptcy petition under Title 11 of the United States Code creates an estate comprised of ‘all
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legal or equitable interests of the debtor as of the commencement of the case.’”) (quoting 11 U.S.C.
§ 541(a)(1)). Here, there is no dispute that the Annuity is property of the Debtors’ bankruptcy
estate.
B. 	Exemptions from the Estate
“Federal bankruptcy law allows a debtor to exempt some of his property—mainly basic
necessities—from the bankruptcy estate. The exemptions can afford the debtor some economic and
social stability, which is important to the fresh start guaranteed by bankruptcy.” 	Sheehan v.
Morehead (In re Morehead), 283April 14, 2005 F.3d 199, 202-203 (4th Cir. 2002) (citing Williams
v. U.S. Fid. & Guar. Co., 236 U.S. 549, 554-55 (1915)). See 11 U.S.C. § 522(b); Rousey v. Jacoway,
___ U.S. ___, 125 S. Ct. 1561, 1565-66 (2005) (“To help the debtor obtain a fresh start, the
Bankruptcy Code permits him to withdraw from the estate certain interests in property, such as his
car or home, up to certain values.”) (citations omitted); Owen, 500 U.S. at 308 (“An exemption is
an interest withdrawn from the estate (and hence from creditors) for the benefit of the debtor.
Section 522 determines what property a debtor may exempt.”); Holland v. Star Bank, N.A. (In re
Holland), 151 F.3d 547, 548 (6th Cir. 1998) (“The Bankruptcy Code allows debtors to exempt
certain property from the bankruptcy estate.”); Storer v. French (In re Storer), 58 F.3d 1125, 1127
(6th Cir.), cert. denied, 516 U.S. 990 (1995) (“Bankruptcy Code § 522(d) entitles debtors to exempt
certain property from their bankruptcy estate.”). Exemptions “give the debtors a so-called ‘grub-
stake’ to begin their fresh start and . . . act as a safety net, so that the debtor and his family are not
completely impoverished due to creditor collection action or bankruptcy such that they become
wards of the state.” In re Robinson, 292 B.R. 599, 606 (Bankr. S.D. Ohio 2003) (quoting In re
Sumerell, 194 B.R. 818, 826 (Bankr. E.D. Tenn. 1996)).
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4Ohio Rev. Code Ann. § 2329.662 provides:
Pursuant to the “Bankruptcy Reform Act of 1978,” 92 Stat. 2549, 11
U.S.C.A. 522(b)(1), this state specifically does not authorize debtors who are
domiciled in this state to exempt the property specified in the “Bankruptcy
Reform Act of 1978,” 92 Stat. 2549, 11 U.S.C.A. 522(d).
Ohio Rev. Code Ann. § 2329.662 (Anderson 2001).
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Section 522(b)(1) of the Code offers debtors a choice between exempting the property
specified in § 522(d) or exempting the property protected by federal nonbankruptcy law or state law
“unless the State law that is applicable to the debtor . . . specifically does not so authorize.” 11
U.S.C. § 522(b)(1). 	Ohio has chosen to “opt out” of the federal exemption scheme; thus, Ohio
residents who file for bankruptcy relief, like the Debtors, are limited to the exemptions provided
under law. 4 See Storer, 58 F.3d at 1127 (“Ohio has replaced the federal exemptions with its own
state exemptions, which are those generally available to debtors under Ohio’s general debtor-
creditor law.”).
C. 	Burden of Proof in Exemption Litigation
The party objecting to an exemption—here, the Trustee—has the burden of proving the
objection is not properly claimed. See Fed. R. Bankr. P. 4003(b) (“A party in interest may file an
objection to the list of property claimed as exempt . . . .”); Robinson, 292 B.R. at 612 n.9. “The
[T]rustee, as the objecting party, has the burden of producing evidence which rebuts the prima facie
presumption that the exemption is correct.” In re Mann, 201 B.R. 910, 915 (Bankr. E.D. Mich.
1996) (citing Lester v. Storey, (In re Lester), 141 B.R. 157, 161 (Bankr. S.D. Ohio 1991)). See also
In re Rhinebolt, 131 B.R. 973, 975 (Bankr. S.D. Ohio 1991) (“The initial burden of producing
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evidence to rebut the propriety of a claimed exemption rests on the objecting party.”) (citing Fed.
R. Bankr. P. 4003(c)).
“A party objecting to claimed exemptions must prove that the exemption is not properly
claimed by a preponderance of the evidence.” In re Roselle, 274 B.R. 486, 490 n.4 (Bankr. S.D.
Ohio 2002) (citing Fed. R. Bankr. P. 4003(c)). See also Hamo, 233 B.R. at 723 (“The burden is on
the trustee to establish, by a preponderance of the evidence, that the exemption should be
disallowed.”). “Upon the introduction of sufficient evidence to rebut the prima facie validity of the
exemption, the burden shifts to the debtors to demonstrate that the exemption is proper.” Rhinebolt,
131 B.R. at 975. If, however, “the trustee fails to carry the burden of proving by a preponderance
of the evidence that the exemption should be disallowed, the exemption will stand.” Mann, 201 B.R.
at 915 (citing In re Baumgardner, 160 B.R. 572, 573-74 (Bankr. S.D. Ohio 1993)).
D. 	The Ohio Exemption Statute
Debtors claim the Annuity is exempt under § 2329.66(A)(10)(b) of the Ohio Revised Code,
which provides that:
(A) Every person who is domiciled in this state may hold property exempt from
execution, garnishment, attachment, or sale to satisfy a judgment or order, as follows:
. 	. 	.
(b) Except as provided in sections 3119.80, 3119.81, 3121.02, 3121.03, and 3123.06
of the Revised Code, the person's right to receive a payment under any pension, annuity, or
similar plan or contract, not including a payment from a stock bonus or profit-sharing plan
or a payment included in division (A)(6)(b) or (10)(a) of this section, on account of illness,
disability, death, age, or length of service, to the extent reasonably necessary for the support
of the person and any of the person's dependents, except if all the following apply:
(i) The plan or contract was established by or under the auspices of an insider that
employed the person at the time the person's rights under the plan or contract arose.
(ii) The payment is on account of age or length of service.
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5Section 522(d)(10)(E) of the Bankruptcy Code provides, as follows:
(d) The following property may be exempted under subsection (b)(1) of this section:
. 	. 	.
(10) The debtor’s right to receive—
. 	. 	.
(E) a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or
contract on account of illness, disability, death, age, or length of service, to the extent
reasonably necessary for the support of the debtor and any dependent of the debtor,
unless—
(i) such plan or contract was established by or under the auspices of an insider that
employed the debtor at the time the debtor’s rights under such plan or contract arose;
(ii) such payment is on account of age or length of service; and
(iii) such plan or contract does not qualify under section 401(a), 403(a), 403(b), or
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(iii) The plan or contract is not qualified under the “Internal Revenue Code of 1986,”
100 Stat. 2085, 26 U.S.C. 1, as amended.
Ohio Rev. Code Ann. § 2329.66(A)(10)(b) (emphasis added).
“An exemption claimed under Ohio Revised Code Section 2329.66(A)(10)(b) requires [a]
three-part analysis: (1) a right to receive payment under an annuity or similar plan; (2) the payment
must be on account of illness, disability, death, age, or length of service; and (3) the payment must
be reasonably necessary for the support of the debtor or his dependents.” In re Meyers, 139 B.R.
858, 862 (Bankr. N.D. Ohio 1992). The parties’ dispute in this case centers on whether the Annuity
is reasonably necessary for the Debtors’ support.
E. 	The “Reasonably-Necessary” Limitation
Both the Ohio and the Federal Exemption Statutes limit an exemption in retirement assets
to the amount “reasonably necessary for the support of [the debtor and the debtor’s dependents].”
Ohio Rev. Code Ann. § 2329.66(A)(10)(b); 11 U.S.C. § 522(d)(10)(E). 5 But the phrase “reasonably
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408 of the Internal Revenue Code of 1986.
11 U.S.C. § 522(d)(10)(E) (emphasis added).
6See Mascio v. Pub. Employees Ret. Sys. of Ohio, 160 F.3d 310, 325 (6th Cir. 1998) (“There
is no legislative history per se for Ohio statutes.”); State v. Bryant, 1998 WL 399863, at *4 (Ohio
Ct. App. July 17, 1998) (“[T]here is no legislative history in Ohio, generally.”); In re Smith, 5 B.R.
227, 229 (Bankr. S.D. Ohio 1980) (same).
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necessary for the support of [the debtor and the debtor’s dependents]” is not defined in either the
Bankruptcy Code or the Ohio Revised Code. 	Because there is no legislative history for Ohio
statutes,6 Ohio bankruptcy courts have looked to the legislative history of the Federal Exemption
Statute in determining the meaning of the reasonably-necessary limitation. See In re Phillips, 45
B.R. 529, 533 (Bankr. N.D. Ohio 1984) (“The Ohio statute does not provide a definition of
reasonably necessary, therefore, the court looks to the legislative history [of the Federal Exemption
Statute] and the case law to establish a standard.”).
Debtors argue that both the legislative history of the Federal Exemption Statute and case law
establish that the “reasonably necessary” language was designed to disallow exemption claims made
by debtors with substantial retirement savings—which they define as $200,000 to $300,000 or
more—and thus should not limit their exemption in the Annuity here. To fully address the Debtors’
argument, an explanation of the sequence of events leading to the enactment of the Federal
Exemption Statute is required. The bankruptcy court in Warren v. Taff (In re Taff), 10 B.R. 101
(Bankr. D. Conn. 1981) chronicled this history as follows:
In attempting to discover the origin of [the reasonably necessary]
language, one is led first to the Report of the Commission on
Bankruptcy Laws of United States, H.R.Doc.No. 93-137, 93rd Cong.,
1st 	Sess. 	(1973). 	The 	Commission 	on 	Bankruptcy 	Laws
(Commission) was established in 1970 by the Congress to study,
analyze, evaluate and recommend changes in the bankruptcy laws of
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the United States. In 1973, it filed its report together with a proposed
completely revised bankruptcy statute. Although previous bankruptcy
laws had deferred to the states for the enactment of the exemptions
to be allowed to a bankrupt in the state of his domicile, the
Commission proposed a “federal” list of exemptions to be of
nationwide application in place of the state exemptions. In §
4-503(c)(6) of its proposed bankruptcy act, the Commission allowed
as exempt
before or after retirement, such rights as the debtor may have
under a [profit sharing,] pension [stock bonus, annuity or
similar plan] which is established for the primary purpose of
providing benefits upon retirement by reason of age, health,
or length of service . . . to the extent . . . the debtor's interest
therein is reasonably necessary for the support of the debtor
and his dependents.
Resolution of the problems of the standard of support to be
sustained, and the effect of other resources of the debtor, was not
provided for in the proposed bankruptcy act. While the Commission
proposal 	was 	before 	Congress, 	the 	National 	Conference 	of
Commissioners on Uniform State Laws promulgated in August, 1976
a Uniform Exemptions Act (UEA) which sought to conform state
exemption laws generally to the Commission's proposals. Section 6
of the UEA followed the Commission's proposed list of exemptions
except that UEA § 6(b) defined the phrase “property to the extent
reasonably necessary for the support of [the debtor] and his
dependents” to mean
property required to meet the present and anticipated needs of
the individual and his dependents as determined by the court
after consideration of the individual's responsibilities and all
the present and anticipated property and income of the
individual, including that which is exempt.
The Bankruptcy Code of 1978 wound its way through
Congress until the day of enactment in two separate versions—one
in the House and one in the Senate. When in 1977, the House
Judiciary Committee reported out its version of a new bankruptcy
law, it included an option for a debtor to choose either state law
exemptions 	or 	the 	federal 	exemptions. 	In 	its 	list 	of 	federal
exemptions, 	the 	House 	Bill 	exempted 	pension 	plans 	without
limitation. The House Report No. 95-595, 95th Cong. 1st Sess.
(1977), 361. . . , U.S.Code Cong. & Admin.News 1978, pp. 5787,
6317 noted as to the federal exemptions: “They are derived in large
part 	from 	the 	Uniform 	Exemption 	Act, 	promulgated 	by 	the
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7Several other reported decisions also have cited the law review article relied on by the
Miller court, but not as support for the proposition that Congress included the reasonably-necessary
limitation in the Federal Exemption Statute in order to prevent high-earning executives and
professionals from placing substantial retirement assets beyond the reach of creditors. 	These
decisions simply note that one legal commentator has suggested that the reasonably-necessary
limitation contained in the Commission’s proposed exemption statute was directed at high earners
who have amassed substantial retirement assets. See In re Kochell, 732 F.2d 564, 565 (7th Cir.
1984) (“One commentator has suggested that the limitation was added to prevent officers of large
corporations and professionals from placing large amounts of their assets into pension funds that
would remain unavailable to their creditors, despite the fact that the individual might not have any
real need for the assets.”) (citing Plumb, 61 Va. L. Rev. at 58-59). 	Samore v. Graham (In re
Graham), 726 F.2d 1268, 1272 (8th Cir. 1984) (“It was with private plans particularly in mind that
the Commission on Bankruptcy Laws proposed the reasonable support limitation, because of the
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Commissioners of Uniform State Laws in August, 1976.” The Senate
Judiciary Committee’s version of a new bankruptcy law retained the
former law’s policy of looking only to state law for exemptions and
omitted alternative federal exemptions. In the compromise measure
which was enacted by Congress in 1978 to become the present law,
the option provision in the House version for the debtor to choose
between exemption systems was retained, and the “reasonably
necessary” language was inserted with respect to pension plans [and
other retirement assets].
Id. at 105-06 (emphasis added) (footnote omitted).
As the Taff court explained, the statute proposed by the Commission on Bankruptcy Laws
(“Commission”) was not enacted. Nevertheless, a law review article written by a consultant to the
Commission has been cited by one bankruptcy court as authority for the proposition that the
reasonably-necessary limitation contained in the Federal Exemption Statute was aimed at the
circumstance in “which an officer of a large corporation or a professional person could accrue very
large vested pension benefits beyond that which would be reasonably necessary for their support.”
In re Miller, 33 B.R. 549, 553 & n.10 (Bankr. D. Minn. 1983) (citing William T. Plumb, Jr., The
Recommendations of the Commission on the Bankruptcy Laws—Exempt and Immune Property, 61
Va. L. Rev. 1, 59 (1975)).7 The law review article cited by the Miller court discussed the exemption
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well-known fact that a corporate officer or a member of a professional corporation may be entitled
to vested pension benefits aggregating hundreds of thousands of dollars.”) (quoting Plumb, 61 Va.
L. Rev. at 59).
16
statute proposed by the Commission, which contained a reasonably-necessary-for-maintenance-and-
support limitation, and noted that this language was included “because of the well-known fact that
a corporate officer or member of a professional corporation may be entitled to vested pension
benefits aggregating hundreds of thousands of dollars.” 	Plumb, 61 Va. L. Rev. at 59 (quoting
Commission note 8 to Proposed Bankruptcy Act § 4-503, which states that the reasonably-necessary
limitation was “placed on the exemption since it is recognized that members of professional
corporations and officers will have very substantial benefits.”) (citing S. Rep. No. 91-552, 91st
Cong., 1st Sess. 201, 271 (1969)).
Contrary to the Debtors’ contention, neither the express terms or the legislative history of
the Federal Exemption Statute support the conclusion that the “reasonably necessary” language
contained in the statute was aimed primarily at high earners who have accumulated hundreds of
thousands of dollars in retirement funds. True, the reasonably-necessary limitation did emanate
from the exemption statute proposed by the Commission. 	And it is true also that note 8 to the
Commission’s proposed exemption statute states that the reasonably-necessary limitation was
directed at “members of professional corporations and [corporate] officers” having “very substantial
benefits.” 	Id. 	But the text of the Commission’s proposed exemption statute did not define the
phrase “reasonably necessary for the maintenance and support of the debtor and his dependents” or
otherwise suggest that this limitation should apply only to high earners. More importantly, there is
absolutely no indication in the legislative history accompanying the version of the Federal
Exemption Statute that actually became law that the reasonably-necessary limitation was aimed
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17
primarily at high earners. See H.R. Rep. No. 595, 95th Cong., 1st Sess. 361-62 (1977), reprinted
in 1978 U.S.C.C.A.N. 5963, 6317-18. Indeed, the legislative history accompanying the Federal
Exemption Statute makes no mention of either the Commission’s proposed exemption statute or its
concern that high-earning corporate executives and professionals could shield unneeded assets from
creditors absent a limitation on the exemptibility of retirement assets. See id.
Rather than referencing the Commission’s proposed exemption statute and accompanying
notes, the Federal Exemption Statute’s legislative history simply indicates that the federal
exemptions were “based on the Uniform Exemptions Act [(“UEA”)], promulgated by the
Commissioners of Uniform State Laws in 1976.” Gilbert v. Osburn, (In re Osburn), 56 B.R. 867,
875 (Bankr. S.D. Ohio 1986) (citing H.R. Rep. No. 595, 95th Cong., 1st Sess. 361 (1977), reprinted
in 1978 U.S.C.C.A.N. 5963, 6317). “Section 6[b] of the [UEA] defined the phrase ‘property to the
extent reasonably necessary for the support of [the debtor] and his dependents’ as ‘property required
to meet the present and anticipated needs of the individual and his dependents as determined . . .
after consideration of the individual’s responsibilities and all of the present and anticipated property
and income of the individual, including that which is exempt.’” Id. (citing Kochell, 732 F.2d at 565;
Phillips, 45 B.R. at 533). As a leading bankruptcy treatise notes, “this standard does not focus on
‘the debtor’s station in life and the standard of living to which he has been accustomed,’ as does the
standard generally applicable to alimony and support.” 2 William L. Norton, Jr., Norton Bankruptcy
Law and Practice 2d § 46:8 (1998) (quoting UEA, Comment 7 to § 6, 13 U.L.A. Civ. Proc. & Rem.
Laws 226 (1986)). “Rather, the [UEA] ‘requires the court to direct its attention to the individual’s
needs and responsibilities.’” Id. (footnote omitted). “Given the evolutionary relationship between
the [UEA] and the Code, this definition carries great weight.” Id. (footnote omitted).
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Because the legislative history of the Federal Exemption Statute states that the federal
exemptions are derived from the UEA, courts have looked to the definition of reasonably-necessary
property contained in § 6[b] of the UEA and its accompanying Comment 7 for guidance in
interpreting the “reasonably necessary” language contained in the statute. See, e.g., Kochell, 732
F.2d at 565 (“[T]he reasonably necessary standard requires that the court take into account other
income and exempt property of the debtor, present and anticipated . . . and that the appropriate
amount to be set aside for the debtor ought to be sufficient to sustain basic needs, not related to his
former status in society or the lifestyle to which he is accustomed but taking into account the special
needs that a retired and elderly debtor may claim.”) (quoting Taff, 10 B.R. at 107); In re Flygstad,
56 B.R. 884, 889-890 (Bankr. N.D. Iowa 1986) (same). Courts applying the Ohio Exemption Statute
have likewise employed this basic-needs analysis, determining whether retirement benefits are
reasonably necessary for a debtor’s support not by looking to “whether he has sufficient funds to
sustain his former lifestyle, but [instead] whether he has enough to sustain his present and future
needs, taking into account any special needs of the particular debtor.” Hamo, 233 B.R. at 723. “In
determining what payments are ‘reasonably necessary’, th[is] Court does not have to decide whether
a debtor has sufficient funds to sustain a former lifestyle. Instead, the inquiry is whether there is
enough to sustain present and future needs, taking into account any special circumstances.” Roselle,
274 B.R. at 490 (citing Hamo, 233 B.R. at 723; In re Parker, 219 B.R. 972, 974-75 (Bankr. S.D.
Ohio 1998)); In re Erbaugh, 199 B.R. 367, 368 (Bankr. S.D. Ohio 1996) (“[T]he appropriate amount
to be set aside for the debtor ought to be sufficient to sustain basic needs, not related to his former
status in society or the lifestyle to which he is accustomed but taking into account the special needs
that a retired and elderly debtor may claim.”).
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8 “The right to claim an exemption from property of the bankruptcy estate arises and is fixed
in a voluntary case on the date the petition is filed.” In re Lude, 291 B.R. 109, 110 (Bankr. S.D.
Ohio 2003) (citing Armstrong v. Peterson (In re Peterson), 897 F.2d 935 (8th Cir.1990)). “Changes
in either a debtor's factual circumstances or the law after the petition date do not change the status
of an exemption properly claimed as of the petition filing date.” Id. (citing Peterson, 897 F.2d at
937-938). 	“Ohio law holds that in bankruptcy, a debtor's eligibility for an exemption must be
gauged from the time the debtors’ joint bankruptcy petition is filed, and as a consequence, later
changes that occur in a debtor's set of circumstances are ignored.” In re Greer, 242 B.R. 389, 398
(Bankr. N.D. Ohio 1999) (citations omitted).
19
In order to determine whether any or all of the Annuity is reasonably necessary for the
Debtors’ support, the Court “must consider both the present and future needs of the debtors.”
Parker, 219 B.R. at 974 (citing In re Bogart, 157 B.R. 345, 347 (Bankr. N.D. Ohio 1993)). The
Court “must look to the time when both husband and wife will be in retirement[,]” id. at 975, and
make its determination based on the facts existing on the date the Debtors filed their petition.8 As
the BAP explained in Hamo, “[b]ankruptcy courts uniformly consider eleven factors in making the
determination of the amount of retirement funds necessary to sustain a debtor’s needs.” Hamo, 233
B.R. at 723. These factors (“Necessity Factors”) include:
1. 	Debtors’ present and anticipated living expenses;
2. 	Debtors’ present and anticipated income from all sources;
3. 	Age of the debtors and dependents;
4. 	Health of the debtors and dependents;
5. 	Debtors’ ability to work and earn a living;
6. 	Debtors’ job skills, training, and education;
7. 	Debtors’ other assets, including exempt assets;
8. 	Liquidity of other assets;
9. 	Debtors’ ability to save for retirement;
10. 	Special needs of the debtors and dependents; [and]
11. 	Debtors’ financial obligations, e.g., alimony or support payments.
Id. See also In re Conkle, 275 B.R. 530, 531 (Bankr. S.D. Ohio 2002) (applying Necessity Factors
and “determining [that] annuity is [not] reasonably necessary for the support of the debtors”) (citing
Mann, 201 B.R. at 915-16; Parker, 219 B.R. at 975); Erbaugh, 199 B.R. at 369 (determining
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20
individual retirement account was reasonably necessary based on application of Necessity Factors);
In re Webb, 189 B.R. 144, 145-146 (Bankr. S.D. Ohio 1995) (same); Mid-Am. Fed. Sav. & Loan
Ass’n v. Gateway Manor Congregate Apts., 641 N.E.2d 229, 233 (Ohio Ct. App. 1994) (applying
Necessity Factors and holding that Keogh plan was not reasonably necessary for judgment debtor’s
support and thus not exempt from garnishment).
“A bankruptcy court’s analysis is not restricted to the[] [Necessity] [F]actors, nor is a
bankruptcy court required to specifically discuss each factor in every case. However, these factors
are appropriate for a trial court’s consideration in its analysis of the totality of facts and
circumstances in each case.” Hamo, 233 B.R. at 723. See also Roselle, 274 B.R. at 490 (“When
analyzing the facts and circumstances of each case, the [c]ourt is not restricted to these factors, nor
is the court required to specifically address each factor.”).
F. 	Application of the Necessity Factors
1. 	Present/Future Income & Expenses (Necessity Factors 1, 2)
Ability to Save for Retirement (Necessity Factor 9)
The Debtors’ lifestyle is by no means lavish. Together, they net $3,714 in monthly income,
and they estimate their monthly expenses at $4,200, resulting in a monthly budget shortfall of nearly
$500. See Schedule I - Current Income of Individual Debtor(s); Schedule J - Current Expenditures
of Individual Debtor(s). Most of the Debtors’ income is obtained from Mrs. Guikema’s $60,000 a
year position as a registered nurse, a job she has held for 13 years. While Mrs. Guikema has no
plans to pursue a managerial position at Grady Memorial, which, she testified, would result in a
significant pay raise, she does expect to receive modest yearly pay raises until her planned
retirement in 15 years when she reaches age 65. Mr. Guikema nets $300 a month from his current
photography work. He testified that he continues to search for more lucrative employment. Mr.
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9 Line items for real estate taxes and homeowners’ insurance are not included in Debtors’
Schedule J. It is therefore unclear whether or not the $1650 in total mortgage payments includes real
estate taxes and homeowners’ insurance. Thus, if Debtors’ real estate taxes and insurance are not
escrowed and paid by their mortgage holder, their monthly housing-related costs may actually
exceed $2010.
21
Guikema has substantial experience as a photographer and also worked at Cord Camera for several
years. His income has the potential to increase substantially if he obtains a position similar to that
which he held at Cord Camera but likely will not decrease in the future.
Although Debtors’ living expenses exceed their income by nearly $500 a month, they could
eliminate 	this 	shortfall 	by 	reducing 	their 	$2,010 	in 	total 	monthly 	housing-related
expenditures—which is the one item in the Debtors’ budget that appears to be clearly out of line
considering their income level. Debtors’ total monthly housing-related costs, which consume nearly
60% of their total monthly income, include the following items.
Home mortgage 	$800
Second mortgage 	$850
Electricity and hearing fuel 	$250
Water and sewer 	$60
Home maintenance 	$50
Total 	$2010 9
These expenses would be reduced significantly by relocation to an apartment. 	Debtors could
certainly find suitable housing in the Delaware, Ohio area for no more than $1,000 per month by
simply moving to an apartment in their community. 	A reduction in their housing-related
expenditures by approximately $1,000 a month would result in the elimination of Debtors’ current
$500 monthly budget shortfall and allow them to save or invest the remaining $500 a month in
savings for their retirement needs.
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10 As a practical matter, Debtors’ ability to reduce their housing costs will be complicated by
their execution of reaffirmation agreements with their first and second mortgage holders. But the
fact that the Debtors may have made an ill-advised, postpetition decision to reaffirm their mortgage
obligations cannot factor into the Court’s analysis of whether the Annuity is reasonably necessary
for the Debtors’ maintenance and support. “[A] debtor’s eligibility for an exemption must be gauged
from the time the debtors’ joint bankruptcy petition is filed, and as a consequence, later changes that
occur in a debtor’s set of circumstances are ignored.” Greer, 242 B.R. at 398.
22
As discussed above, in assessing whether the Annuity is reasonably necessary for the support
of the Debtors, the Court must look to whether the Debtors can sustain their basic needs, not whether
they can maintain their former status in society or the lifestyle to which they were accustomed. See,
e.g., Hamo, 233 B.R. at 723; Roselle, 274 B.R. at 490; Parker, 219 B.R. at 975; Erbaugh, 199 B.R.
at 368. By obtaining more affordable housing, Debtors will be able to sustain their basic needs and
save substantial sums for their retirement. See Roselle, 274 B.R. at 490-491 (concluding that
debtor’s entire $2,453.30 monthly disability insurance benefit was not reasonably necessary based,
in part, on finding that debtor’s housing expenses could be substantially reduced by his relocation
to an apartment). The Debtors undoubtedly would prefer to stay in their current residence. But, in
determining whether the Annuity is reasonably necessary, the Court is not permitted to consider
Debtors’ former station in life. See Kochell, 732 F.2d at 566; Phillips, 45 B.R. at 534; Taff, 10 B.R.
at 107. Simply put, “the fresh start guaranteed by bankruptcy, and supported by the exemption
scheme, does not entitle a debtor to maintain the lifestyle to which he was accustomed in better
times.” Morehead, 283 F.3d at 207. 10
Further, the Debtors’ future income should be sufficient to sustain their basic needs.
Estimates from the Social Security Administration show that Debtors, collectively, will receive
$2,813 in monthly benefits upon their retirement, Trustee Exs. 4, 5, and that Mrs. Guikema will
receive an additional $234.06 per month upon retirement from her PSP Account. Trustee Ex. 3. The
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11 If the Debtors reduce their monthly housing costs by $1,000 and save $500 a month over
the remaining 15 years of Mrs. Guikema’s work life, they will have at least an additional $90,000
(plus more, assuming even a modest rate of return on the additional savings) when Mrs. Guikema
reaches age 65.
23
monthly payment Mrs. Guikema is projected to receive from the PSP Account assumes a mere 2%
rate of growth and that Grady Memorial will make no future contributions to the plan. This latter
assumption does not appear reasonable given the fact that Grady Memorial has contributed a yearly
average of $1,550 to her PSP Account over the past 13 years. If this contribution level were to
continue for another 15 years, Mrs. Guikema’s interest in the PSP Account would increase by at
least $23,250 (which does not include a rate of return on the additional contributions). Thus, it is
reasonable to assume that the monthly distribution Mrs. Guikema will receive from the PSP Account
at retirement will be in excess of that projected in Trustee Ex. 3. More importantly, if Debtors
decrease their monthly housing costs, they will be able to save substantial sums over the course of
their remaining work lives and use these savings to help fund their retirement needs.11
2. 	The Remaining Necessity Factors
The remaining Necessity Factors are either neutral or weigh against a finding that the
Annuity is reasonably necessary for the Debtors’ support. Mr. Guikema (age 52) and Mrs. Guikema
(age 50) have, respectively, 13 and 15 years to work before reaching the age of 65. (Necessity
Factor 3). Thus, while they are not on the threshold of retirement, they have a limited time to work
and save for retirement before reaching age 65. But, as discussed above, with reasonable budgetary
adjustments, the Debtors should have sufficient time to replace the Annuity and accumulate
additional retirement savings. Debtors have adequate job skills and training to remain employed
until at least age 65. (Necessity Factors 5 and 6). The Debtors have no significant assets—liquid,
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12 Adult non-dependents do not figure in the Court’s determination whether the Annuity is
reasonably necessary for the support of the Debtors. 	“[A]lthough [Ohio Rev. Code Ann.] §
2329.66(A)(10)(b) permits the exemption of the amount reasonably necessary for the support of
Debtor and his dependents, the court may not permit the exemption of an amount expended on
behalf of an adult child that is not a dependent.” Hunter v. Ohio Citizens Bank (In re Hotchkiss),
93 B.R. 546, 548-549 (Bankr. N.D. Ohio 1988) (citing In Re Bari, 43 B.R. 253, 256 (Bankr. D.
Minn. 1984); In Re Fill, 84 B.R. 332, 339 (Bankr. S.D.N.Y. 1988)).
24
or otherwise—other than the Annuity, Profit Sharing Plan and their Residence, which is over-
encumbered. (Necessity Factors 7 and 8). The Debtors have no dependents, as their children are
both married and currently attend graduate school. (Necessity Factors 4 and 10). 12
Courts often base a determination that retirement assets are reasonably necessary for the
maintenance and support of debtors and their dependents on debtors’ health-related problems and
their resultant inability to work. “The special needs of retired, infirm and elderly debtors should be
taken into account.” In re Donaghy, 11 B.R. 677, 680 (Bankr. S.D.N.Y. 1981) (finding that 62 year-
old debtor had established that a $21,992.87 pension plan payment was reasonably necessary for his
support under Federal Exemption Statute based upon his and his 64 year-old wife's poor health and
their combined inability to work). See also Parker, 219 B.R. at 975-76 (finding that entire amount
of $20,733 IRA was reasonably necessary for the support of 67 year-old debtor due to his
deteriorating health, age, and level of education, which put into question his ability to work or
contribute to his retirement account); Bogart, 157 B.R. at 348 (finding that a 58 year-old debtor,
presently on medical leave and with a $130 monthly pension, who will retire in two years and is
unlikely to gain other employment, is permitted to exempt a $5,545 IRA account but must turn over
$2,083 in another IRA account). 	In this case, however, the Debtors have testified to no health
problems or any other special needs. (Necessity Factors 4 and 10). See Silagy v. Bank One, Akron,
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N.A. (In re Collin), 182 B.R. 763, 767 (Bankr. N.D. Ohio 1995) (“Unlike Donaghy, the Debtor in
this case has not presented any special needs related to age or infirmity for the court to consider.”).
V. Conclusion
For these reasons, the Court concludes that the Trustee has shown by a preponderance of the
evidence that the Annuity is not reasonably necessary for the Debtors’ maintenance and support and
thus may not be exempted under Ohio Rev. Code Ann. § 2329.66(A)(10)(b). 	A separate order
sustaining the Trustee’s Objection to Mrs. Guikema’s claim of exemption in the Annuity will be
entered.
IT IS SO ORDERED.
Copies to:
Harvey J. and Debra L. Guikema, Debtors, 73 Campbell Street, Delaware, OH 43015
Nicholas W. Jones, Attorney for Debtors, 2 West Winter Street, Suite 31, Delaware, OH 43015
Susan L. Rhiel, Chapter 7 Trustee, 124 S. Washington Avenue, Columbus, OH 43215
Office of the U.S. Trustee, 170 N. High Street, Suite 200, Columbus, OH 43215
###
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