Dorothy R Jackson

UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
In re: 	DOROTHY R. JACKSON,
Debtor
Case No. 	05-44808
Judge Waldron
Chapter 7
DECISION ON ORDER DENYING. IN
PART, TRUSTEE’S OBJECTION
DATED AT DAYTON, OHIO this 18th Day of July, 2006:
Background
On June 8, 2006, the Chapter 7 Trustee, John Paul Rieser (the “Trustee”) filed an
Objection 	to 	Debtor’s 	Claimed 	Exemption 	in 	Spousal 	Allowance 	Received 	From
Deceased Husband’s Estate Pursuant to O.R.C. § 2106.13(A) and Memorandum in
Support, Combined With Notice to All Creditors and Parties in Interest. (Doc. 27) 	The
Debtor filed a response on June 28, 2006. (Doc. 29) The disputed exemption concerns
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: July 18, 2006
____________________________________________________________
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$14,792.51 that the Debtor received from her deceased husband’s probate estate on
September 27, 2005. 	The parties agree that the Debtor received these funds pursuant
to the widow allowance of Ohio Revised Code § 2106.13(A).1 (See Doc. 1 -- Schedule
B – Item 33). 	The Debtor claimed an exemption in these funds pursuant to Ohio
Revised Code § 2329.66(A)(11). 2
Determination
The court determines the Debtor is entitled to an exemption of these funds under
Ohio 	Revised 	Code 	§ 	2329.66(A)(11), 	subject 	to 	the 	requirement 	under 	§
2329.66(A)(11) that the funds be reasonably necessary for the support or maintenance
of the Debtor or her dependents.
Jurisdiction
The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the Standing Order
of Reference in this District. This is a core proceeding pursuant to 28 U.S.C. §
157(b)(2)(A), (B) and (O).
Standard of Review
As the objecting party, the Trustee has the burden to prove “that the exemptions
are not properly claimed.” Bankruptcy Rule 4003(c). 	Consistent with well established
authority, this court has noted, “Ohio exemptions provisions are to be construed liberally
1 Ohio Revised Code § 2106.13(A) states that “[i]f a person dies leaving a surviving spouse and no minor
children, leaving a surviving spouse and minor children, or leaving minor children and no surviving
spouse, the surviving spouse, minor children, or both shall be entitled to receive, subject to division (B) of
this section, in money or property the sum of forty thousand dollars as an allowance for support. If the
surviving spouse selected two automobiles under section 2106.18 of the Revised Code, the allowance for
support prescribed by this section shall be reduced by the value of the automobile having the lower value
of the two automobiles so selected. The money or property set off as an allowance for support shall be
considered estate assets.”
2 Ohio has opted out of the federal exemptions and, therefore, exemptions available to debtors domiciled
in Ohio are based on Ohio law. In re Oglesby, 333 B.R. 788, 790, fn. 2 (Bankr. S.D. Ohio 2005).
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in favor of the debtor and a debtor’s dependents and any doubt in interpretation should
be in favor of granting the exemption.” In re Lewis, 327 B.R. 645, 648 (Bankr. S.D. Ohio
2005).
Ohio Revised Code § 2106.13(A)
The Trustee argues that the funds are not exempt under the probate statute,
Ohio Revised Code § 2106.13(A) and/or the exemption statute § 2329.66(A)(11). In her
response, the Debtor states that the exemption claim is not based on § 2106.13(A) and
rests solely on Ohio Revised Code § 2329.66(A)(11).
Although in the Debtor’s Schedules B and C the words “O.R.C. 2106.13(A)
spousal allowance” are present, 	the Debtor’s consistent position and specific statutory
reference in Schedule C – “SPECIFY LAW PROVIDING EACH EXEMPTION” – list only
§ 2329.66(A)(11). (Doc. 1) 	Accordingly, the court has no occasion to consider whether
the funds are exempt under § 2106.13(A) and expresses no opinion on such an issue.
The court notes that the Trustee’s citation to Wicheff v. Baumgart (In re Wicheff),
215 B.R. 839 (B.A.P. 6th Cir. 1998) is not of assistance in the analysis required in this
proceeding. 	In Wicheff, the disputed funds concerned insurance renewal commissions
a debtor received from policies sold pre-petition by her deceased husband. 	The B.A.P.
affirmed the bankruptcy court’s denial of an exemption under § 2106.13(A). Id. at 842-
43.
As noted, the Debtor, in this proceeding, does not seek an exemption under §
2106.13(A). Wicheff simply does not address § 2329.66(A)(11).
Ohio Revised Code § 2329.66(A)(11)
Ohio Revised Code § 2329.66(A)(11) states:
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(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 dependents. (emphasis
added)
Section 2329.66(A)(11) contains the specific word “allowance.” 	The same word,
“allowance”, is used in the probate statute that provides for the widow allowance. See §
2106.13(A). 	See also Ohio Revised Code §1.42 (“Words and phrases shall be read in
context and construed according to the rules of grammar and common usage.”)
The Trustee cites an unreported decision, Kandel v. Papai (In re Papai), 1997
WL 840293 (Bankr. N.D. Ohio Oct. 8, 1997). Kandel is distinguishable from this
proceeding because that case addressed an entirely distinct exemption issue –whether
the 	earned 	income 	tax 	credit 	can 	be 	exempt 	under 	Ohio 	Revised 	Code 	§
2329.66(A)(11). 3 The arguments in Kandel centered on whether such a tax credit could
be considered “support” or “maintenance.” 	In that context, the Kandel court cited a
bankruptcy court decision from the Northern District of Oklahoma [In re George, 199
B.R. 60, 62 (Bankr. N.D. Okla. 1996)]. The Oklahoma court, construing an Oklahoma
statute, stated “it is generally assumed that payments for alimony, maintenance, or child
support would arise from a divorce decree.” Kandel at *3. 	However, the Kandel court
continued that § 2329.66(A)(11) has no specific limitation and is broadly written. Id. The
Kandel decision, to the extent it is of assistance to this court, supports the Debtor’s
position that the word “allowance” as used in § 2329.66(A)(11) cannot be limited to the
construction urged by the Trustee.
3 The court express no view on whether the earned income tax credit is exempt under § 2329.66 or any
other statute.
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THE TERM “ALLOWANCE” HAS A PLAIN MEANING AND IS NOT SURPLUSAGE
In order to conclude that the term “allowance” is limited to the construction urged
by the Trustee, this court would be required to ignore the plain meaning and the
purpose 	of 	the 	exemption 	statute. 	Since 	the 	term 	“allowance” 	is 	used, 	without
qualification, in § 2329.66(A)(11), this court has no basis to conclude it would not apply
to the widow allowance of § 2106.13(A). See Portage Cty. Bd. of Commrs. v. Akron,
109 Ohio St.3d 106, 116 (2006). 	(“An unambiguous statute must be applied in a
manner consistent with the plain meaning of the statutory language, and a court cannot
simply ignore or add words.”)
In addition, the court does not find it appropriate to conclude “allowance” is
merely 	a 	superfluous 	term 	which 	repeats 	in 	different 	nomenclature 	an 	additional
component of spousal support, child support, or other maintenance. 	See Ohio Revised
Code § 1.47(B) (“In enacting a statute, it is presumed that: . . . [t]he entire statute is
intended to be effective[.]”).
The 	court 	determines 	the 	plain 	meaning 	of 	the 	term 	“allowance” 	in 	§
2329.66(A)(11) includes the widow “allowance for support” contained in § 2106.13(A).
THE TERM “ALLOWANCE” HAS NO TECHNICAL OR PARTICULAR MEANING
Further, the court does not find the term “allowance” in § 2106.13(A) should be
ascribed a separate, technical meaning from the word “allowance” in § 2329.66(A)(11).
See Ohio Revised Code § 1.42 (“Words and phrases that have acquired a technical or
particular meaning, whether by legislative definition or otherwise, shall be construed
accordingly.”) Unlike other terms in § 2329.66(A)(11) such as spousal support and child
support, 	the 	Ohio 	legislature 	has 	never 	given 	a 	specific, 	technical 	meaning 	to
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“allowance” in § 2329.66(A)(11). Cf. Ohio Revised Code §§ 3105.18 (defining spousal
support) and 3109.05 (defining child support). Additionally, the word “maintenance” is a
recognized component of state court decrees of divorce, dissolution, separation or
property settlement and is acknowledged as such in bankruptcy proceedings. (See 11
U.S.C § 101(14A)(B), which states, in part 	“in the nature of alimony, maintenance or
support…”) (emphasis added)
Whether the Widow Allowance of § 2106.13(A) is “reasonably necessary for the
support of the person and any of the person’s dependents” pursuant to Ohio
Revised Code § 2329.66(A)(11) 	is a Question of Fact
Having 	determined 	that 	§ 	2329.66(A)(11) 	applies 	to 	authorize 	the 	claimed
exemption of the widow allowance, the issue remaining is whether the funds are
“reasonably 	necessary 	for 	the 	support 	of 	the 	person 	and 	any 	of 	the 	person’s
dependents.” 	The Debtor argues that the widow allowance should be exempt because
the Ohio legislature has already determined that a widow is entitled to $40,000;
however, that amount is found in § 2106.13(A), which does not contain the words “to the
extent reasonably necessary for the support of the person and any of the person’s
dependents”, 	which 	are 	found 	in 	§ 	2329.66(A)(11), 	which 	is 	the 	determinative
exemption statute in this proceeding.
The issue of whether the widow allowance is reasonably necessary for the
support of the Debtor or her dependents is a question of fact. 	The court has reviewed
the Debtor’s affidavit and the arguments in the Trustee‘s filing and determines this issue
cannot be resolved on the present state of the record.
It is obvious that the parties have not had a full and fair opportunity to consider
their respective positions in the context of this decision. 	The court has, by separate
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order, 	scheduled 	a 	pretrial 	conference 	to 	determine 	future 	proceedings 	in 	this
adversary.
Conclusion
In accordance with this decision, the Trustee Objection (Doc. 27) will be DENIED
IN PART by a separate order.
SO ORDERED.
c:
Anne M. Frayne, 18 West First Street, Suite 200, Dayton, Ohio 45402 (Atty. for the
Debtor)
John Paul Rieser, 130 West Second Street, Suite 1520, Dayton, Ohio 45402 (chapter 7
Trustee)
Patricia Friesinger, 130 West Second Street, Suite 1520, Dayton, Ohio 45402 (Atty. for
the chapter 7 Trustee)
Dorothy M. Jackson, 1588 Glenbeck Avenue, Apt. C, Dayton, Ohio 45409 (Debtor)
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