Stephen A. Delmoe, II and Sarah Ann Delmoe

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
In re 	: 	Case No. 05-69524
Stephen A. Delmoe, II
Sarah Ann Delmoe 	: 	Chapter 7
Debtor(s) 	: 	Judge Preston
MEMORANDUM OPINION ON TRUSTEE’S MOTION FOR AN
ORDER REQUIRING DEBTORS TO TURNOVER FUNDS RECEIVED
POST-PETITION FROM THE SARAH A. TAYLOR-DELMOE/TUW TRUST
This cause came on for hearing on March 28, 2006, upon the Trustee’s Motion for an
Order Requiring Debtors to Turnover Funds Received Post-Petition From The Sarah A. Taylor-
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: March 26, 2007
____________________________________________________________
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Delmoe/TUW Trust (Doc. #11) and the Debtors’ Objection thereto (Doc. #15). 	Present at the
hearing were David M. Whittaker, Trustee and counsel for Trustee, and Claire Fried Drake
representing Stephen A. Delmoe, II and Sarah Ann [Taylor] Delmoe (collectively “the
Debtors”). 	The Trustee seeks turnover of post-petition disbursements from a trust established
by Gerald Taylor for benefit of Sarah Taylor Delmoe. 	This Court has jurisdiction over this
matter pursuant to 28 U.S.C. § 1334, and the general order of reference entered in this District.
This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (E).
I. 	Background.
The facts underlying this dispute may be summarized as follows: 	In January 1997,
Gerald Roger Taylor, the father of Debtor Sarah Ann Taylor Delmoe (“Mrs. Delmoe”), hand-
wrote his Last Will (the “Will”). 	Unlike a traditional will, Mr. Taylor fashioned his Will in the
form of two letters, one to Mrs. Delmoe and one to his sister, Sharon Price (“Mrs. Price”). He
asked his sister to act as executrix of his estate. The Will essentially bequeathed all of Mr.
Taylor’s assets to Mrs. Delmoe. 	In August 2001, Mr. Taylor changed his Will, again in the
form of a letter (the “Codicil”), to bequeath his assets to his sister to hold in trust for Mrs.
Delmoe. The Codicil provided in pertinent part as follows:
. . . Sharon is to see that $600.00 a month is to be given to Sarah A. Taylor
Delmoe, my only child. If there is a child or children born of her marriage and
Sarah becomes deceased the money is to be in trust for her children to age 16 yr.
If no children are born, upon Sarah’s demise the money is to go to the Ohio
University in Chillicothe, Ohio to be used for scholarships to needy students in
the name of my daughter Sarah Taylor Delmoe.
Joint Exhibit l, p. 9.
Mr. Taylor died on August 28, 2001; his Will and Codicil were filed with the Probate
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1The claims register for the case reflects that claims have been filed totaling approximately $88,265.00, including
approximately $61,616.00 in what appear to be student loans. See Joint Exhibit 2.
2The motion also requested that the probate court authorize Mrs. Price to pay administrative expenses and trustee fees
out of the income and/or principal of the Trust, that a successor trustee be designated, and that in the event of the demise of Mrs.
Delmoe, the assets be held in trust until the youngest of her children reach the age of 25. See Joint Exhibit 10. The probate court
granted the request regarding administrative expenses and trustee fees but did not grant the remaining requests. See Joint Exhibit
10 at 12-13.
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Court of Anderson County, Texas on October 2, 2001. 	The Probate Court evidently determined
that the Will and Codicil contemplated a trust for the benefit of Mrs. Delmoe (hereinafter, the
“Trust” or “Taylor Trust”), that the documents appointed Mrs. Price to act as Trustee, and that
the Trust provided for disbursements to Mrs. Delmoe for the remainder of her life. 	Mrs.
Delmoe began receiving monthly distributions from the Trust in the amount of $600.00 per
month, commencing in September 2001.
Mrs. Delmoe married Stephen Delmoe in April 2001. She graduated from high school in
1997 and has pursued higher education sporadically since then. In order to facilitate her
education, she has taken out numerous student loans; as of the date of commencement of the
case, according to the Debtors’ Schedule E, she owes approximately $27,490.00 in student
loans.1 In the summer of 2005, Mrs. Delmoe attempted to obtain a higher monthly distribution
from the Trust. She was pregnant at the time and unable to work. She or Mrs. Price caused a
motion to be filed with the Probate Court of Scioto County, Ohio, requesting that the
distributions be increased to the sum of $l,000.00, in the trustee’s sole discretion, in order to pay
for extraordinary expenditures for the health, support, welfare and maintenance of Mrs. Delmoe.
See Joint Exhibit 10 at 2-3. The court did not grant the relief requested.2 See Joint Exhibit 10 at
12-13.
The Debtors assert that the trust assets do not constitute property of the bankruptcy estate
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3 This case was filed before the effective date of most amendments to the Bankruptcy Code enacted by the
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.
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by virtue of § 541(c) of the Bankruptcy Code, first, because it is a spendthrift trust, and second,
because it is necessary for the Debtors’ support.
II. 	Discussion.
Section 541 of the Bankruptcy Code provides in pertinent part:
(a) The commencement of a case under section 301, 302, or 303 of this title
creates an estate. Such estate is comprised of all the following property, wherever
located and by whomever held:
(1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable
interests of the debtor in property as of the commencement of the case.
. . .
(c)(1) Except as provided in paragraph (2) of this subsection, an interest of the
debtor in property becomes property of the estate . . . notwithstanding any
provision in an agreement, transfer instrument, or applicable nonbankruptcy law–
(A) that restricts or conditions transfer of such interest by the
debtor; . . .
(2) A restriction on the transfer of a beneficial interest of the debtor in a trust that
is enforceable under applicable nonbankruptcy law is enforceable in a case under
this title.
11 U.S.C. § 541 (2005). 3
A. Is the Taylor Trust a Spendthrift Trust?
A spendthrift trust is a trust that imposes a restraint on the voluntary and involuntary
transfer of the beneficiary’s interest in the trust property. 	See Scott v. Bank One Trust Co., 62
Ohio St.3d 39, 577 N.E.2d 1077 (1991). 	It is well settled in Ohio that a spendthrift trust is
enforceable. Domo v. McCarthy, 66 Ohio St. 3d 312, 318, 612 N.E.2d 706, 711 (1993). As
such, a spendthrift trust does not constitute property of the bankruptcy estate by virtue of §
541(c)(2). 	The Debtors posit that in order to qualify as a spendthrift trust, the trust need not
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contain specific language. While this is so, there must be evidence of the trustor’s intent that the
trust constitute spendthrift trust, and language of the trust must expressly or effectively restrain
the alienability of the beneficiary’s interest in the trust property.
Unlike the Domo and Scott cases, the Taylor Trust did not contain any language that
would qualify as spendthrift language, that would suggest an intention on the part of Mr. Taylor
that Mrs. Delmoe’s interest be inalienable, or that would effectively operate to restrain transfer
of Mrs. Delmoe’s interest in the Trust. The portion of the Codicil that established the Trust was
very simple: it merely stated that Mrs. Price would disburse to Mrs. Delmoe $600.00 per month.
In the event of Mrs. Delmoe’s death, Mrs. Price would distribute to Mrs. Delmoe’s children until
age 16. 	The Codicil did not contain any language purporting to restrain or limit the alienation of
Mrs. Delmoe’s interest. The Debtors suggest that language in the Will specifying that Mrs.
Delmoe would be “provided with enough money to complete [her] education and get a good start
. . . [on] a long and good life. . .” was intended to illustrate Mr. Taylor’s intent that the Trust be a
spendthrift trust. 	However, that language was contained in the Will which was crafted in 1997
and which did not establish or contemplate a trust. The Codicil written in 2001, which did
establish the Trust, did not incorporate the language of the Will or contain any language to
restrain or limit the alienation of Mrs. Delmoe’s interest. The Court cannot assume that Mr.
Taylor intended to impose restrictions without evidence to that effect.
The Debtors also point to the decision of the Scioto County Probate Court in support of
the notion that the Trust contained an enforceable restriction on alienation. However, the
Judgment Entry by the Scioto County Probate Court did no such thing: the Judgment Entry
simply acknowledged the matter before the court, that all interested parties were properly before
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that court, and granted the specific relief pertaining to Trust administrative expenses and
trustee’s fees.
The beneficiary can own no greater interest in the trust property than the trustor has given
him. In a spendthrift trust, the trustor has not given the beneficiary an alienable interest. Scott,
62 Ohio St.3d at 48. 	However, that is not the situation in the instant case. There has been no
restriction on the interest that Mr. Taylor granted to Mrs. Delmoe. The only restriction is on the
Trustee who is required to remit to Mrs. Delmoe the sum of $600.00 per month, no more and no
less.
B. Is the Taylor Trust a Support Trust?
The Debtors’ second theory is that the Trust constitutes a support trust and therefore, is
either (i) not property of the bankruptcy estate under § 541(c) or (ii) exempt under Ohio Rev.
Code § 2329.66(A)(11).
The hallmark of a support trust is a directive to the trustee that mandates distribution to
the beneficiary only so much of the income or principal of the trust as is necessary for the
education or support of the beneficiary. As long ago recognized by the Ohio Supreme Court,
when a trust provides for a specific sum or a discernable amount (such as, “all income”) to be
given to the beneficiary, that entire sum belongs to the beneficiary and may be applied by the
beneficiary as he so chooses. Even the expression of a purpose for which the distribution may be
given is not deemed to constitute a restraint on its alienation. As such, the amounts due the
beneficiary are subject to the claim of creditors. Thornton v. Stanley, 55 Ohio St. 199, 45 N.E.
318 (1896).
In the instant case, the Codicil directed Mrs. Price as trustee of the Trust to disburse a
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sum certain, that being $600.00 per month, to Mrs. Delmoe. Even if the Will or Codicil
purported to specify the purpose for which the funds were to be spent, which this Court does not
see, such language does not constitute a limitation on the Trustee’s responsibility and obligation
to remit $600 per month to Mrs. Delmoe. 	Mrs. Delmoe receives the stipend from the Trust each
month, regardless of whether she is enrolled in school or employed, and she is not required to
provide any information to Mrs. Price as a condition precedent to payment of the stipend.
Therefore, the Trust does not qualify as a support trust, and disbursements are subject to the
claims of her creditors and subject to the reach of the Chapter 7 Trustee.
The Scioto County Probate Court’s decision again supports this holding: 	The Probate
Court was asked to give the trustee of the Trust discretion to make additional distributions. 	That
request was not granted. While the court’s order did not give us any insight into the decision, the
court must have determined that the Trust afforded Mrs. Price no discretion to make additional
distributions of any sort, and that as trustee of the Trust, she was limited to the express directives
of the Trust.
C. Can the Taylor Trust be Claimed Exempt Under Ohio Revised Code
§ 2329.66(A)?
The only remaining question is whether the income of the Trust may be properly claimed
exempt pursuant to Ohio Rev. Code § 2329.66(A)(11). 	That section provides in pertinent part
as follows:
(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:
. . .
(11) The person’s right to receive spousal support, child support,
an allowance, or other maintenance to the extent reasonably
necessary for the support of the person and any of the person’s
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dependents[.]
Debtors intimate that the Trust payments are exempt property pursuant to §
2329.66(A)(11) simply because the payments are utilized, and perhaps even necessary, to the
support of their family. 	Section 2329.66(A)(11) provides an exemption for child or spousal
support or other maintenance the underpinning for which is an obligation or commitment to
provide support. Clearly, the Trust payments to Mrs. Delmoe, do not qualify as spousal or child
support. The question becomes, do they qualify as an allowance or maintenance? The terms
“maintenance” and “allowance” are not defined by the Ohio Revised Code, nor has the scope of
these terms been addressed by the courts of Ohio. Therefore, the Court must look to the ordinary
and accepted meaning of the terms. 	Black's Law Dictionary defines the word “maintenance” as,
“the furnishing by one person to another, for his or her support, of the means of living, or food,
clothing, shelter, . . . .” Black's Law Dictionary (6 th ed. 1990). 	The term denotes a concept akin
to or attendant to support of another. The term “allowance” is not so narrowly construed: “A
share or portion, esp. of money that is assigned or granted.” Black's Law Dictionary 84 (8th ed.
2004). It would seem, therefore, that the Trust payments might qualify as an “allowance” and be
properly claimed exempt.
However, Ohio Rev. Code § 1.42 provides, “Words and phrases shall be read in context
and construed according to the rules of grammar and common usage. ” 	The Ohio Supreme
Court has observed that when interpreting a statute, a court cannot pick out one sentence and
dissociate it from the context, but must look to the entire statute to determine the intent of the
enacting body. State v. Jackson, 102 Ohio St. 3d 380, 811 N.E. 2d 68 (Ohio 2004). The same
holds true for the individual words. In § 2329.66(A)(11), the term “allowance” falls between
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4The cases cited by the Debtors of Samson v. Bertok, 1986 WL 14819 (Ohio Ct. App. 1986) and Schierer v. Ostafin,
1999 WL 493940 (Ohio Ct.App. 1999) held that a beneficiary’s interest in trust assets was not subject to execution by creditors.
The holding in each case relied on the character of the trust and the language contained in the trust document, rather than Ohio
Rev. Code § 2329.66(A). In both situations, the trustee was directed by the trust documents to disburse trust income or assets to
the beneficiary in such amounts as were necessary for the care, maintenance and support of the beneficiary. As such, the courts
determined that the trusts constituted support trusts and thus, not available to satisfy creditor claims.
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“child support” and “maintenance.” 	This is a clear indication that the Ohio legislature intended
to tie it to the concept of financial assistance and a support obligation. Only by taking the term
“allowance” totally out of its statutory context is it possible to divorce from it the notions of
support or maintenance.
The Court was unable to find any cases, nor did the parties cite any cases which applied
Ohio Rev. Code § 2329.66(A)(11) to shield the income received by a trust beneficiary from
attachment by creditors. 4 While the grant of exemption in that section extends to assets or
claims broader than child or spousal support awarded in connection with a marital or support
action, the courts of Ohio have limited the application of the statute to those situations where the
purpose of the grant was to provide support for debtor or his/her dependents. See, e.g., In re
Jackson, 348 B.R. 771 (Bankr. S.D. Ohio 2006); In re Hageman, 260 B.R. 852 (Bankr. S.D.
Ohio 2001); Kandel v. Papai (In re Papai), 1197 Bankr. LEXIS 2190 (Bankr. N.D. Ohio 1997).
To hold otherwise, opens the door to assertion of exemptions in all manner of income, gifts, and
assets coming to debtors. This Court does not believe that was the intention of the Ohio
legislature.
This is also consistent with the general scheme of the exemption statutes as they speak to
income streams. Generally, Ohio Rev. Code § 2329.66 exempts specifically described grants or
benefits that are in the nature of support or assistance. See, e.g., Ohio Rev. Code §
2329.66(A)(6)(a) (interest in a beneficiary fund set apart or paid by a benevolent association or
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society), § 2329.66(A)(6)(d) (money, benefits, charity, relief or aid paid or provided by a
fraternal benefit society), § 2329.66 (A)(6)(e) (benefits under sickness or accident insurance
policies), § 2329.66(A)(9) (moneys paid or payable for living maintenance or rights, worker’s
compensation, unemployment compensation, disability financial assistance payments), §
2329.66(A)(10) (certain pension, benefit, annuity or retirement accounts or funds), §
2329.66(A)(12) (reparations, wrongful death payments to dependents to the extent necessary for
support, personal injury, compensation for loss of future earnings). If the Ohio legislature had
intended to exempt any funds or “allowance” that a debtor alleges is required to support himself,
there would be no need for any additional exemptions to protect benefits, aid or other income
streams to a debtor.
Ohio Revised Code § 1.47 further instructs, “In enacting a statute, it is presumed that . . .
a just and reasonable result is intended.” The purpose of the exemption statutes is to provide
debtors with the assets necessary to protect the family from destitution, and prevent them from
becoming wards of the state. This is balanced against creditors’ rights to collect sums due them.
Thus, the statute cannot be interpreted to give debtors a potential windfall. Interpreting the term
“allowance” so broadly as to encompass all manner of income, grant or gift does not balance the
interests of society (i.e., providing the debtor with sufficient assets to protect the family from
destitution) with the rights of creditors. A just and reasonable result requires that the Court limit
the scope of the term “allowance” to that provided in furtherance of support or subsistence.
The benefits under the Taylor Trust not hinging on the subsistence needs of Mrs.
Delmoe, they are indistinguishable from any other funds or payments which a beneficiary or
grantee may receive. 	As such, § 2329.66 (A)(11) is not available to the Debtors to exempt the
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Trust income payable to Mrs. Delmoe.
III. 	Conclusion.
In light of the foregoing, the Court finds that the Taylor Trust is not a spendthrift trust or
a support trust; therefore, the interest therein of Debtor Sarah Ann Taylor Delmoe constitutes
property of the bankruptcy estate. 	Furthermore, the sums payable under the Trust to Debtor
Sarah Ann Taylor Delmoe are not eligible for exemption under Ohio Rev. Code §
2329.66(A)(11). A separate order will be entered consistent with the foregoing.
IT IS SO ORDERED.
Copies to:
Stephen A. Delmoe, II, Sarah Ann Delmoe, 590 W. 5th Street, Apt. 17, Chillicothe, OH 4560l
Claire Fried Drake, Attorney for Debtor(s) (Electronic Service)
David M. Whittaker, Chapter 7 Trustee (Electronic Service)
Office of the United States Trustee (Electronic Service)
# # #
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