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United States Bankruptcy Court

Middle District of Alabama (Dothan)


______________________________________________ In re Greg W. Howard / Sandra E. Howard, ) ) Debtor ) Case No. 10-10511 Address: 3031 Highway 134 E ) Headland, AL 36345 ) ) Chapter 13 Last four digits of Social-Security or Individual Tax) Payer-Identification No(s): 7127 / 3702 ) ______________________________________________)

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RESPONSE TO OBJECTION TO PROOF OF CLAIM NO. 11 Now comes the priority creditor Massachusetts Department of Revenue, Child Support Enforcement Division (MDOR/CSE) and hereby responds to the Debtors Objection to Claim (Objection). In support of this response MDOR/CSE states as follows: 1. 2. Greg W. Howard (Debtor) and Sandra E. Howard (Joint Debtor) filed an original petition under Chapter 13 of the Bankruptcy Code on March 23, 2010. On May 24, 2010, MDOR/CSE filed a timely Proof of Claim (Claim No. 11) for domestic support obligations owed to Valerie Jean Mitchell (formerly Valerie Jean Howard) under 11 U.S.C. 507(a)(1)(A). The claim is based upon a divorce judgment from the Worcester Division of the Probate and Family Court Department of the Commonwealth of Massachusetts which is attached to the claim. 3. The Massachusetts Legislature has designated MDOR/CSE as the single state agency within the commonwealth that is designated the IV-D agency pursuant to Title IV, Part D of the Social Security Act [42 U.S.C. 651 et seq.] . . . M.G.L. c. 119A, 1. All Massachusetts child support orders shall be made payable to MDOR/CSE pursuant to M.G.L. c. 119A, 12(b)(1). Therefore, MDOR/CSE is charged with collecting the domestic support obligations owed by the Debtor. On September 21, 2010, the Debtors filed an Objection to Claim No. 11 (Objection). See Document No. 31. In their Objection, Debtors state that Claim No. 11 should be disallowed based upon a child support claim filed by the Alabama IV-D agency (Alabama DHR) on April 20, 2010 in the amount of $7,551.56 and also pursuant to an attached state court order of February 26, 2010. However, Debtors did not attach an order. A proof of claim filed in accordance with the Bankruptcy Rules is prima facie evidence of the claims validity and amount. F.R.B.P. 3001(f). A party who wishes to rebut this presumption has the burden of introducing evidence sufficient to dispute the contents of 4. 5. Case 10-10511 Doc 34 Filed 10/20/10 Entered 10/20/10 16:20:32 Document Page 1 of 3 Desc Main

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the claim. Brown v. IRS (In re Brown), 82 F.3d 801 (8th Cir. 1996); In re Hemingway Transp., 993 F.2d 915, 28 C.B.C.2d 1545 (1st Cir. 1993); In re Fullmer, 962 F.2d 1463, 27 C.B.C.2d 92 (10th Cir. 1992). 6. Here, Debtor has not presented any evidence that the debt is not owed. Debtor was aware of the Massachusetts child support order and his own payment history. Debtor has not submitted any evidence that the Massachusetts child support order is not a valid order or that Debtor made payments that were not credited to his case. Therefore, MDOR/CSE asserts that the Objection cannot be sustained as Debtor has not aptly rebutted the prima facie validity of MDOR/CSEs claim. Even if Debtor did attach an Alabama Family Court judgment that stated that Debtor owed child support arrears in the amount of $7,551.56, that order is insufficient evidence as to the amount of the underlying child support debt. Alabama cannot modify the child support debt that Debtor owes to MDOR/CSE because Massachusetts has never conceded continuing, exclusive jurisdiction over to Alabama in Mr. Howards child support case.

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7. 8. Under the Uniform Interstate Family Support Act (UIFSA), which Alabama adopted at Code of Ala. 30-3A-101, a State issuing a support order has continuing, exclusive jurisdiction as long as one party to the order (mother, father or child) continues to live in the issuing state. Unif. Interstate Family Support Act (1996) (amended 2001). Other States may only modify a child support order if (1) the court has jurisdiction to make a child support order and (2) the initial state no longer has continuing, exclusive jurisdiction or the parties to the underlying action file written consent. 28 USCS 1738B(e). Here, the mother has not consented to Alabamas jurisdiction and the mother continues to reside in Massachusetts; therefore, Massachusetts maintains its continuing, exclusive jurisdiction over Mr. Howards child support case. Further explaining the discrepancy between Claim No. 11 and Claim No. 5, MDOR/CSE requested enforcement assistance of the Alabama IV-D agency (Alabama DHR) pursuant to 42 U.S.C. 666(a)(14) due to Debtors residence in Alabama. This request for enforcement of a Massachusetts child support order was made pursuant to 45 CFR 303.7 and did not constitute a termination of Massachusetts continuing, exclusive jurisdiction. Alabama DHR requested an updated arrears balance for the contempt hearing; however, MDOR/CSE was unable to timely provide the information. At this point, under interstate child support regulations, Alabama DHR could have closed its case pursuant to 45 CFR 303.11. A case closure by Alabama DHR would have no effect on the underlying debt because, as stated above, Massachusetts has not conceded our continuing, exclusive jurisdiction. Alabama DHR chose not to close its case and pursued the contempt action against the Debtor for his failure to pay the Massachusetts child support order. The Alabama Court found Debtor had not paid his child support in accordance with the Massachusetts order, but entered the incorrect monetary judgment. The Alabama Court was not aware of the 9. 10. 11. Case 10-10511 Doc 34 Filed 10/20/10 Entered 10/20/10 16:20:32 Document Page 2 of 3 Desc Main

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correct arrears balance which includes interest and penalties that had accrued on Debtors child support case pursuant M.G.L. c.119A, 6 and 830 C.M.R. 119A.6.1. MDOR/CSE has subsequently provided Alabama DHR with the accurate debt figures and Alabama DHR has amended its claim. See Claim No. 5-2. Wherefore, the Child Support Enforcement Division of the Massachusetts Department of Revenue respectfully requests that this Honorable Court overrule Debtors Objection to Proof of Claim No. 11. DATED: October 20, 2010 /s/ Jodi B. Rowland-Lowney Jodi B. Rowland-Lowney, Esq. BBO # 667709 Department of Revenue Child Support Enforcement Division P.O. Box 9561 Boston, MA 02114-9561 (617) 626-2138 rowlandloj@dor.state.ma.us

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CERTIFICATE OF SERVICE I, Jodi B. Rowland-Lowney, Counsel to the Commissioner of the Child Support Enforcement Division of the Massachusetts Department of Revenue, do hereby certify that on October 20, 2010, I electronically filed the Response to Objection to Proof of Claim using the CM/ECF system and served the following CM/ECF participants: Michael D. Brock, Esquire Curtis C. Reding, Trustee I certify that on this date I served a copy of the above-referenced document on the following listed below by first class mail, postage prepaid. Greg W. Howard / Sandra E. Howard 3031 Highway 134 E Headland, AL 36345 Signed under the pains and penalties of perjury on October 20, 2010. /s/ Jodi B. Rowland-Lowney Jodi B. Rowland-Lowney Counsel to the Commissioner Case 10-10511 Doc 34 Filed 10/20/10 Entered 10/20/10 16:20:32 Document Page 3 of 3 Desc Main

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