Debtor Awarded $5,000 for each Day he was Incarcerated Where Ex-Wife Proceeded with Post-petition Civil Contempt Action in Family Law Action

Debtor Awarded $5,000 for each Day he was Incarcerated Where Ex-Wife Proceeded with Post-petition Civil Contempt Action in Family Law Action

Cynthia Boone (“Boone”) initiated a lawsuit (the “Lawsuit”) against her ex-husband,  the “Debtor” by filing a Petition for Rule Nisi (the “Nisi Petition”) in the Circuit Court (the “Circuit Court”) to collect a monetary property settlement awarded to her in their divorce. The Nisi Petition demanded payment of the property settlement obligation (the “Obligation”), and if the Debtor failed to pay, wanted him held in civil contempt and incarcerated. At the close of the first day of trial, the Circuit Court judge (the “Circuit Judge”) continued the trial for several days and admonished the Debtor to pay the Obligation before trial resumed so the Lawsuit could be dismissed and he could avoid going to jail. The Debtor did not come up with the money necessary to pay the Obligation, and a few days before trial resumed, he filed a case under chapter 13 of the Bankruptcy Code seeking protection under the automatic stay. When trial resumed, the Circuit Judge was told of the Debtor’s bankruptcy. She became incensed, and stated that she knew enough bankruptcy law to know the automatic stay did not apply to criminal proceedings. As retribution for the Debtor’s seeking bankruptcy protection, and for the express purpose of eluding the automatic stay, the Circuit Judge, sua sponte, announced that trial would resume on the singular issue of criminal contempt. The switch from civil to criminal contempt was made notwithstanding that the Nisi Petition sought to coerce payment through civil contempt, and during the first day of trial the Circuit Judge as well as the parties’ attorneys repeatedly spoke of civil contempt and that the Debtor could avoid jail if he paid the Obligation before trial resumed. Although the Circuit Judge offered Boone and her attorney, Candice Shockley (“Shockley” and together with Boone, the “Respondents”), the opportunity to stop the trial in light of the Debtor’s bankruptcy, they willingly joined in the newly contrived criminal prosecution that concluded with the Debtor being held in contempt and sent directly to jail.3

The Debtor filed a motion (Doc. 16, and herein the “Motion”) asking this bankruptcy court to hold the Respondents in contempt for violating the automatic stay and to award damages and expenses, including attorney’s fees, pursuant to Code § 362(k). The Respondents filed their Response in opposition to the Motion, arguing, inter alia, that because the Circuit Judge held the Debtor in criminal contempt, they were exempt from the stay under Code § 362(b)(1). On October 24, this court conducted a hearing on the Debtor’s Motion. At the hearing, Boone, Shockley, the Debtor, and his Circuit Court attorney testified. After the conclusion of the hearing, the parties submitted memoranda supporting their positions, and the court took the matter under advisement. For the reasons stated herein, the court finds that both Boone and Shockley willfully violated the automatic stay, and therefore the court must grant the Motion and award damages.

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