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#2015

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

In Re: )

MARLIN DEAN CROUSE, PENNY DEAN CROUSE,

DEBTOR(S)

NO. 93-42039-13

CHAPTER 13

ORDER GRANTING STAY RELIEF

This case is before the Court on a motion for stay relief filed by the Kansas Department of Social and Rehabilitation Services (SRS). SRS filed the motion seeking permission to proceed in state court to obtain a judgment against Mr. Crouse for foster care costs it incurred for his children. The Crouses appear by counsel Jan Hamilton. SRS appears by Rebekah A. Phelps-Davis. The Court has reviewed the relevant pleadings and is now ready to rule.

In opposing stay relief, the debtors press several arguments. First, they contend SRS has not shown "cause" for obtaining stay relief. The Court cannot agree. The extent of the debtors' liability to SRS must be determined somehow, and the state court where SRS's suit is pending is better equipped to decide that question than this Court is. The debtors next argue SRS has not provided any documentation to show that it received an enforceable assignment of support rights. However, K.S.A. 39-709(h) provides that such an assignment automatically occurs whenever SRS pays for foster care for a child. No further documentation of the assignment is required. Finally, the debtors argue that case law from other jurisdictions holds that state claims for recovery of foster care expenses are not excepted from discharge, citing as an example In re Erfourth, 126 B.R. 736 (Bankr.W.D.Mich. 1991). That decision, though, relied on the absence of an assignment of support rights to the governmental unit that provided support for the child. As just noted, Kansas law does impose such an automatic assignment.

K.S.A. 39-718b makes a parent liable for all foster care costs the state pays for the parent's child. This Court, however, has previously determined that a debtor's obligation to reimburse SRS for its foster care costs is nondischargeable only to the extent that the debtor would have been ordered to pay support for the child to the other parent, if he or she had custody, under the criteria used in divorce cases under K.S.A. 1993 Supp. 60-1610(a)(1), during the time the child was in foster care. In re Graham, Case No. 89-40974-13, Adv. No. 89-7354, Order (Bankr.D.Kan. July 10, 1990). In effect, without expressly stating this, the Court interpreted 11 U.S.C.A. §523(a)(5)(B), which limits nondischargeability to debts that are "actually in the nature of . . . support," to mean that an obligation for the support of the debtor's child is nondischargeable only to the extent of the amount the other parent or the child could have obtained from the debtor, and not any extra amounts a state may have authorized itself to recover from the debtor. Such extra amounts, though in a sense constituting support for the child, are not the kind of support intended to be excepted from discharge.

For these reasons, SRS is granted stay relief to proceed in state court to obtain a determination of the amount Mr. Crouse might have been ordered to pay as support for his children during the time SRS was providing foster care for them, and the amount of his total liability to SRS under K.S.A. 39-718b. SRS may then enforce any judgment it obtains through the debtors' bankruptcy case.

IT IS SO ORDERED.

Dated at Topeka, Kansas, this _____ day of April, 1994.













__________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE

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