Donnie F. Tucker

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Case 2:05-bk-70905 Doc 31 Filed 04/25/07 Entered 04/25/07 11:11:29 Desc Main
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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION
In re : Case No. 05-70905
Donnie F. Tucker, : Chapter 13
Debtor. : (Judge Caldwell)

ORDER OVERRULING OBJECTION OF DEBTOR TO
PROOF OF CLAIM OF SHARON WILEY
FKA SHARON TUCKER

Donnie F. Tucker (“Debtor”) objects to the claim of Sharon Wiley fka Sharon Tucker
(“Creditor”). He asserts that her interest is based upon a property settlement that may be
payable as a general unsecured claim and discharged. Based upon a review of the pleadings,
case law and statements of Counsel, the Court has determined that the Debtor’s Objection
must be overruled based upon controlling authority from this Circuit.

On June 22, 1998, an Agreed Judgment Entry Decree of Divorce was entered by the
Franklin County, Ohio Court of Common Pleas. It provided in relevant part as follows:

(The Debtor) shall retain 78% of his retirement benefits through PERS and

(the Creditor) is awarded 22% of (the Debtor’s ) retirement benefits available

through PERS. Said 22% award represents the marital property settlement due

to the (Creditor ) in the amount of...$107,177.00...Commencing on June 22,

2007, (the Debtor) shall pay to the (Creditor)...22% of his monthly benefit

received from ...PERS...or shall arrange for said payments to be (paid) directly

to (the Creditor) from PERS. The Court shall retain jurisdiction to the extent
required to maintain the original intent of the parties as stipulated herein.

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Based upon this language, the Court finds and concludes that as of June 22, 1998, the
Creditor was awarded a property interest in the Debtor’s retirement plan to the extent of
$107,177.00. This amount is payable in installments at the rate of 22% either by the Debtor
or through PERS.

On October 8, 2005, when the Debtor filed chapter 13, the Creditor’s interest was
preserved, and it did not become estate property. The Debtor merely holds legal title to that
portion of the plan awarded to the Creditor. She retained her equitable interest, that by virtue
of the Decree, is held in constructive trust. On this basis to the extent of $107,177.00, the
Creditor’s interest can not be altered or discharged, and it must be paid in full pursuant to the
Decree. McCafferty v. McCafferty (In re McCafferty), 96 F.3d 192, 197-200 (6th Cir.
1996); Hines v. Hines (In re Hines), 193 Fed. Appx. 391, 394-396 (6th Cir. BAP 2006).

This result is not altered by the fact that the Debtor may be obligated to make the
distribution to the Creditor on a monthly basis, as this merely constitutes a payment
mechanism. Also, to the extent that the Debtor challenges the validity of the division of the
pension in the Decree, the Domestic Relations Court retained jurisdiction to address such
disputes. Finally, in view of the June 22, 2007, distribution date contained in the Decree, the

parties should consider an agreed modification of the stay to allow the Domestic Relations

Court to proceed.

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Accordingly, the Objection of Debtor to Proof of Claim of Sharon Wiley fka Sharon

Tucker is Overruled.

IT IS SO ORDERED.

vote WR 25 Wo. ttn!

Charles M. Caldwell
United States Bankruptcy Judge

Copies to:

Donnie F. Tucker, 5293 Franklin Street, Hilliard, Ohio 43026
Michael T. Gunner, Esq. (electronic service)

David M. Whittaker, Esq. (electronic service)

Frank M. Pees (electronic service)

Assistant United States Trustee (electronic service)