In Re Earl William Teichman, Debtor. Barbara F. Teichman, Cross-Appellant v. Earl William Teichman, Cross-Appellee

This bankruptcy appeal and cross-appeal concern the dischargeability of a husband’s obligation to pay to his former wife a per- *1397 ventage of his Air Force retirement benefits which their marriage dissolution decree iivided as community property. We hold that payments due the wife after the filing 3f the bankruptcy petition are the husband’s post-petition obligations and not subject to discharge under the Bankruptcy Code. We also hold that the payments due prior to the filing are subject to discharge since the exception to dischargeability relied upon by the former wife does not apply in this case.

Barbara Teichman and Earl Teichman iissolved their marriage in November 1974, in California. The final judgment of dissolution incorporated the terms of the Prop-srty Settlement Agreement executed by the parties in July 1974. That agreement provided:

rhe parties also stipulated that the hus-aand would arrange for the Air Force to make the payments required by the judgment of dissolution by way of military allotment check payable directly to the wife.

The husband then failed to see that various cost of living increases were included m the wife’s checks, and in July 1981, in…

concurring in part and dissenting in part:

I concur in the majority’s holding that future payments of pension benefits are not dischargeable. I disagree, however, with its conclusion that those benefits that accrued prior to Mr. Teichman’s filing for bankruptcy are dischargeable.

Contrary to the majority’s finding, I believe Mr. Teichman was, by virtue of the parties’ property settlement agreement, a trustee for the purpose of receiving and disbursing to Mrs. Teichman her share of the pension benefits. The majority correctly notes that California courts have held that particular property settlements created trusts when the elements of a legal trust were present. See Nicholas v. Nicholas, 110 Cal.App.2d 349 , 242 P.2d 679 (1952); Miranda v. Miranda, 81 Cal.App.2d 61 , 183 P.2d 61 (1947). However, the majority mischaracterizes the settlement agreement as simply a division of the couple’s property and nothing more. While the majority recognizes the husband’s responsibility to see that the Air Force paid the wife’s share directly to her, it concludes that no money was meant to be held by the husband for the wife, and therefore no property was conveyed to the husband as trustee. This…

774 F.2d 1395 54 USLW 2278 , 13 Collier Bankr.Cas.2d 1077 , 13 Bankr.Ct.Dec. 1396 , Bankr. L. Rep. P 70,851 In re Earl William TEICHMAN, Debtor. Barbara F. TEICHMAN, Plaintiff-Appellee, Cross-Appellant, v. Earl William TEICHMAN, Defendant-Appellant, Cross-Appellee. Nos. 84-5710/5716. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 4, 1985. Decided Oct. 25, 1985. Lloyd Nocker, Lompoc, Cal., for defendant-appellant, cross-appellee. Appeal from the United States District Court for the Central District of California. Before SCHROEDER, FLETCHER and FARRIS, Circuit Judges. SCHROEDER, Circuit Judge: 1 This bankruptcy appeal and cross-appeal concern the dischargeability of a husband's obligation to pay to his former wife a percentage of his Air Force retirement benefits which their marriage dissolution decree divided as community property. We hold that payments due the wife after the filing of the bankruptcy petition are the husband's post-petition obligations and not subject to discharge under the Bankruptcy Code. We also hold that the payments due prior to the filing are subject to discharge since the exception to dischargeability relied upon by the former wife…