Shockley (fka Davis) v. Moellmer

UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
In re:
KRISTEN P. DAVIS
Debtor
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Case No. 19-13749
Chapter 13
Judge Beth A. Buchanan
KRISTEN P. SHOCKLEY (fka Davis)
Plaintiff
v.
MATTHEW A. MOELLMER
Defendant
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Adv. No. 25-1023
MEMORANDUM OPINION GRANTING DEFENDANT’S MOTION TO DISMISS
[Docket Number 7], WITHOUT PREJUDICE TO THE DEBTOR FILING
A MOTION FOR CONTEMPT
This matter is before this Court on Defendant’s Motion to Dismiss and Notice [Docket
Number 7] (“Motion to Dismiss”) filed by Defendant Matthew A. Moellmer (“Mr. Moellmer”),
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 30, 2026
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Plaintiff’s Response to Defendant’s Motion to Dismiss [Docket Number 12] filed by Plaintiff-
Debtor Kristen P. Shockley formerly known as Kristin P. Davis (“Ms. Shockley”), and
Defendant’s Reply [Docket Number 13].
On June 17, 2025, Ms. Shockley filed an adversary complaint asserting that Mr. Moellmer
was in contempt of court for violating the discharge order and injunction issued in her bankruptcy
case. She claims that, following her discharge, Mr. Moellmer filed documents in a domestic
relations proceeding to collect a discharged pre-petition marital debt. Subsequently, Mr. Moellmer
filed a motion to dismiss asserting various arguments for dismissal, including that a contempt
proceeding for violation of the discharge injunction must be brought by contested matter.
As set forth more fully below, this Court finds that the sole claim in Ms. Shockley’s
complaint is a claim for contempt based on a violation of the discharge injunction. Such a
proceeding must be brought by contested matter rather than adversary complaint. Accordingly,
Mr. Moellmer’s motion to dismiss is granted, without prejudice to Ms. Shockley filing a motion
for contempt in her bankruptcy case.
I. 	BACKGROUND
According to Ms. Shockley’s complaint, she and Mr. Moellmer were divorced in 2014
[Docket Number 1, ¶ 5].1 Pursuant to the parties’ Decree of Dissolution, each party was to pay
one-half of all marital income tax debt owed to the Internal Revenue Service [Id., ¶ 6]. In 2019,
Ms. Shockley filed a chapter 13 petition for bankruptcy relief [Id., ¶ 3]. As part of her bankruptcy
filing, Ms. Shockley scheduled the Internal Revenue Service (“IRS”) as a creditor and the IRS
filed a proof of claim in the bankruptcy case [Id., ¶ 7]. The IRS was paid by the Chapter 13 Trustee
in accordance with the proof of claim [Id., ¶ 8]. In addition, although Ms. Shockley initially
1 The facts in the Complaint are provided as background and assumed as true solely for purposes of determining the
Motion to Dismiss.
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neglected to identify Mr. Moellmer as a creditor in her originally filed schedules, she filed an
amendment to add Mr. Moellmer on November 12, 2019 and it is alleged that he had actual or
constructive knowledge of the bankruptcy proceeding and her discharge order [Id., ¶¶ 11-12].
On November 14, 2024, Mr. Moellmer filed in the domestic relations court a Motion for
Contempt for Failure to Pay Marital Debt [Id., ¶ 15]. Ms. Shockley alleges that Mr. Moellmer’s
motion seeks contribution from Ms. Shockley for the debt owed to the IRS [Id., ¶ 17]. A hearing
was held in the domestic relations court on Mr. Moellmer’s motion and Ms. Shockley raised the
discharge injunction issue at the hearing [Id., ¶ 15]. However, Mr. Moellmer and the domestic
relations court disregarded the argument, the hearing proceeded, and the Magistrate issued a
decision on the contempt motion [Id., ¶¶15-16].
Ms. Shockley asserts that Mr. Moellmer’s actions in the state court amount to a lawsuit
that seeks to collect a discharged debt in violation of 11 U.S.C. § 524(a) and this Court’s discharge
order [Id., ¶¶ 17-19]. Ms. Shockley requests sanctions for the violation, including punitive
damages and her reasonable attorney fees and costs in this adversary proceeding and in the
domestic relations proceeding [Id., ¶ 23].
After the complaint was filed, Mr. Moellmer filed his Motion to Dismiss. In it, he asserts
various arguments for dismissal, including that a claim for contempt based on a violation of the
discharge injunction must be brought by contested matter rather than adversary complaint, that the
contempt claim is barred by the Rooker-Feldman doctrine because the debt has already been
determined nondischargeable in the domestic relations court, and that the debt was not discharged
because it was subject to a constructive trust. Ms. Shockley responded to the Motion to Dismiss
and the matter is now fully briefed.
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II. 	LEGAL ANALYIS
A. Legal Standard for Determining Motions to Dismiss
Mr. Moellmer seeks dismissal of Ms. Shockley’s Complaint in this adversary proceeding
for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure (“Rule”)
12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6).
“Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally come in
two varieties: a facial attack or a factual attack.” Gentek Bldg. Prods., Inc. v. Sherwin-Williams
Co., 491 F.3d 320, 330 (6th Cir. 2007). A facial attack merely questions the sufficiency of the
pleadings. Gentek, 491 F.3d at 330. When reviewing a facial attack, the court must take the
allegations in the complaint as true, making the assessment similar to that under a Rule 12(b)(6)
motion to dismiss for failure to state a claim. Id.
On the other hand, a factual attack raises a factual controversy concerning whether subject
matter jurisdiction exists. Id. When there is a factual attack on subject matter jurisdiction, there is
no presumptive truthfulness applied to the complaint’s allegations. Id. Instead, the court “must
weigh the conflicting evidence to arrive at the factual predicate that subject-matter does or does
not exist.” Id. A court has wide discretion to allow affidavits, documents and even a limited
evidentiary hearing to resolve jurisdictional facts. Id.
When considering a Rule 12(b)(6) motion to dismiss, this Court must “construe the
complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations as
true, and examine whether the complaint contains ‘sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.’” Ohio Pub. Employees Ret. Sys. v. Fed. Home
Loan Mort. Corp., 830 F.3d 376, 382-83 (6th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). “A claim has facial plausibility when the pleaded factual content allows the court to
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draw the reasonable inference the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 556 (2007)). In
considering a motion to dismiss under Rule 12(b)(6), a court must keep in mind that “[t]he purpose
of a motion under Rule 12(b)(6) is to test the legal sufficiency of the complaint, not the probability
of success on the merits.” Kennedy v. R.W.C., Inc., 359 F. Supp. 2d 636, 639 (E.D. Mich. 2005).
B. The Contempt Action Must Be Brought in a Contested Matter
Among his arguments for dismissal, Mr. Moellmer stresses that the adversary complaint
must be dismissed pursuant to Rule 12(b)(6) because the filing of the complaint is procedurally
incorrect and improperly asserts a contempt action as an impermissible private right of action. This
Court agrees.
The 	issuing 	of 	a 	bankruptcy 	discharge 	“operates 	as 	an 	injunction 	against 	the
commencement or continuation of an action . . . to collect, recover or offset any such [discharged]
debt as a personal liability of the debtor whether or not discharge of such debt is waived[.]” 11
U.S.C. § 524(a)(2). Significantly, the Sixth Circuit has concluded that § 524(a) does not create a
private right of action. Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 422-23 (6th Cir. 2000).
Instead, the provision’s purpose is to enjoin impermissible conduct and “the traditional remedy for
violation of an injunction lies in contempt proceedings, not a lawsuit[.]” Id. at 421; see also
Marshall v. PNC Bank, N.A. (In re Marshall), 491 B.R. 217, 234-35 (Bankr. S.D. Ohio 2012).
Consequently, the proper mechanism for redressing a violation of the discharge injunction is a
contempt proceeding initiated in the bankruptcy court that issued the discharge. In re Dewitt, 644
B.R. 385, 398-99 (Bankr. S.D. Ohio 2022); Marshall, 491 B.R. at 234-35 (concluding that a
contempt action brought by adversary complaint should be dismissed and reasserted as a contested
matter).
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In this case, the sole cause of action in Ms. Shockley’s complaint is for contempt based on
violation of the bankruptcy injunction provided by 11 U.S.C. § 524(a) and the discharge order
entered in her bankruptcy case. As determined in the cases cited, the appropriate vehicle for raising
this issue is not with the filing of an adversary complaint but, instead, with the filing of a motion
for contempt in her bankruptcy case.
Ms. Shockley argues that the reason she brought the contempt action via an adversary
complaint was because the determination of whether Mr. Moellmer’s actions violated the
discharge injunction may require a determination of whether or not the marital debt at issue was
discharged. Ms. Shockley correctly ascertains that an action to determine the dischargeability of a
marital debt pursuant to 11 U.S.C. § 523(a)(5) and/or (a)(15) is appropriately brought by adversary
complaint. See Fed. R. Bankr. P. 7001(f). However, Ms. Shockley’s complaint includes no such
cause of action. While the complaint includes statements that the marital debt that Mr. Moellmer
is allegedly trying to collect is of the type that is dischargeable in a chapter 13 bankruptcy case,
Ms. Shockley does not set forth a cause of action or request a court determination regarding the
debt’s dischargeability. Her complaint also includes an acknowledgement that the proceeding was
brought by complaint “to address any potential claim Defendant may raise concerning the
dischargeability of the alleged debt” [see Docket Number 1, ¶ 22]. However, this statement, while
recognizing the potential that another party might bring a cause of action to determine the
dischargeability of the debt, does not, itself, form a cause of action requesting such a
determination.2
2 If a determination of the dischargeability of the marital debt is a necessary prerequisite to determining contempt, this
Court would entertain a joint litigation path for a future-filed motion for contempt brought in Ms. Shockley’s
bankruptcy case and an adversary complaint filed by either Ms. Shockley or Mr. Moellmer to determine the
dischargeability of the marital debt at issue.
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Nonetheless, Ms. Shockley argues that “substance should dominate over form” in support
of keeping the action pending in the adversary proceeding [Docket Number 12, p. 5]. In Marshall,
this Court addressed a similar argument and concluded that the Federal Rules of Bankruptcy
Procedure, specifically Rules 9014 and 9020, require that a contempt proceeding by brought by
motion and not by adversary proceeding. 491 B.R. at 234-35. These rules are “there for a reason”
and “[t]his Court should not be required to speculate as to the potential substantive effects of
ignoring the dichotomy between a contested matter and an adversary proceeding prescribed by the
Bankruptcy Rules[.]” Id. at 235.
For these reasons, Mr. Moellmer’s Motion to Dismiss [Docket Number 7] is granted,
without prejudice to Ms. Shockley’s filing a motion for contempt in her bankruptcy case.3 The
adversary complaint will be dismissed by separate order.
SO ORDERED.
Distribution List:
L. Joshua Davidson, Esq.
Paul J. Minnillo, Esq.
3 This Court will not address the other arguments raised in Mr. Moellmer’s motion until such time as the procedural
deficiencies are corrected and such issues are raised in the contested matter, should it be filed. Nonetheless, this Court
asks Mr. Moellmer to reflect on his argument that Rooker-Feldman would prevent this Court from determining the
dischargeability of the marital debt because the state domestic relations court already determined it. In support of this
argument, Mr. Moellmer attaches a state court magistrate decision to his motion [see Docket Number 7, Ex. D]. This
Court reviewed the magistrate decision and found no clear determination as to the dischargeability of the debt at issue
nor an analysis of (or even mention of) the bankruptcy provisions relevant to excepting marital debts from discharge,
i.e., 11 U.S.C. § 523(a)(5) and (a)(15). Instead, the magistrate’s determination appears limited to a conclusion that
Ms. Shockley failed to submit evidence in support of her defense that the debt was discharged, a defense raised in
response to Mr. Moellmer’s motion for contempt filed in that court. This Court would further note the limits of the
Rooker-Feldman doctrine which applies narrowly to prohibit lower federal courts from conducting an appellate review
of state court decisions. Wohleber v. Skurko (In re Wohleber), 596 B.R. 554, 566 (B.A.P. 6th Cir. 2019). The doctrine
does not apply when a plaintiff in a federal court presents “‘some independent claim, albeit one that denies a legal
conclusion that a state court has reached in a case to which he was a party.’” Id. (quoting Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 293 (2005)).
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