KSB

Judge Nugent

05-17094 Dittmar (Doc. # 97)

In Re Dittmar, 05-17094 (Bankr. D. Kan. Mar. 30, 2011) Doc. # 97

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SO ORDERED.
SIGNED this 30 day of March, 2011.


________________________________________
ROBERT E. NUGENT
UNITED STATES CHIEF BANKRUPTCY JUDGE
OPINION DESIGNATED FOR ON - LINE PUBLICATION
BUT NOT PRINT PUBLICATION


IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS


IN RE: )
)
MARC WILLIAM DITTMAR, ) Case No. 05-17094
) Chapter 7
Debtor. )

________________________________________________)

MEMORANDUM OPINION

The debtor Marc Dittmar amended his schedules B and C to add references to two items of
personal property and to exempt them after the Tenth Circuit Court of Appeals reversed an order of
this Court and held that the items were property of Dittmar’s bankruptcy estate under 11 U.S.C. §
541 that are subject to the Trustee’s administration.1 The property in question is comprised of the
“Spirit bonus” payment received in December of 2006 by former Boeing employees who remained
Spirit employees and the stock received by these same employees pursuant to their collective

1 See Parks v. Dittmar, 618 F.3d 1199 (10th Cir. 2010).

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bargaining agreement with Spirit. This Court had previously held that these items of property were
not sufficiently rooted in the pre-bankruptcy past to be property of Dittmar’s bankruptcy estate.2
On the Trustee’s appeal, the Circuit reversed this Court’s order denying the Trustee’s motion for
turnover, concluding that the debtor’s entitlement to these items were part of his bankruptcy estate.
Thereafter, the debtor amended his Schedules B and C to include these assets as property of the
estate and claimed them as partially exempt earnings under KAN.STAT.ANN. § 60-2310 (2005).3
The Trustee objects to the exemption claim.4

The Trustee bears the burden of proof on exemption objections.5 The parties have stipulated
to the relevant facts and have submitted briefs.6 The Court has reviewed the stipulations and briefs
and is prepared to rule.7

Facts

Dittmar worked for Boeing Commercial Aviation in Wichita under a collective bargaining
agreement. In late 2004, an investor group known as Onex became interested in acquiring Boeing’s

2 In re Lowe, et al, 380 B.R. 251 (Bankr. D. Kan. 2007).

3 Dkt. 78 and 79.

4 Dkt. 84.

5 Fed. R. Bankr. P. 4003(c).

6 Dkt. 92, 93 and 95. Debtor Marc Dittmar appeared by his attorney Don Riley. The
chapter 7 trustee Linda Parks appeared by her attorney Gaye Tibbets.

7 This Court has jurisdiction over the parties and the subject matter pursuant to 28 U.S.C.
§§ 157(a) and 1334(a) and (b), and the Standing Order of the United States District Court for the
District of Kansas that exercised authority conferred by § 157(a) to refer to the District's
bankruptcy judges all matters under the Bankruptcy Code and all proceedings arising under the
Code or arising in or related to a case under the Code, effective July 10, 1984. Furthermore, this
Court may hear and finally adjudicate this matter because it is a core proceeding pursuant to 28

U.S.C. § 157(b)(2)(A)and (E).
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commercial operations in Wichita and began to negotiate with Boeing for the purchase. To
accomplish this acquisition, Onex formed a holding entity Spirit AeroSystems Holdings, Inc.
(“Spirit”). As part of the ongoing negotiations, Spirit entered into collective bargaining with the
International Association of Machinists and the International Brotherhood of Electrical Workers,
the two unions representing Boeing Wichita employees. In its dealings with the unions, Spirit
sought wage concessions that included a 10 per cent pay cut. In an effort to secure ratification of
the contract that included the pay cut, Spirit and the unions negotiated an equity participation
program (“EPP”). Under the EPP, union members would receive cash or stock if the company
completed an initial public offering, sold out, or merged (any of which was characterized as a
“payment event”), so long as the payment event yielded a fifteen percent annual profit to the initial
equity investors. If a payment event occurred, each employee who had been employed at Boeing
on a date certain (June 17, 2005) and who had worked for 90 continuous working days would
receive a cash bonus and shares of Spirit stock. These benefits were called “Stock Appreciation
Rights” or “SARs.” Prior to Dittmar’s petition date, October 7, 2005, the unions verbally agreed
to a contract that would contain the EPP. After several attempts, the unions’ members ratified the
collective bargaining agreements in June, 2005.

On November 16, 2006, a year after Dittmar filed his bankruptcy, Spirit opted to make an
initial public offering of stock, a payment event that triggered benefits for Dittmar and his coworkers.
Thereafter, Spirit paid him a gross amount of $34,556 resulting in an after-tax payment
of $21,546.67.8 On March 29, 2007, Spirit paid Dittmar an additional $30,141.10 which was

8 Dkt. 95, Ex. A.
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converted into Spirit equity that, after taxes, was initially valued at $18,792.96.9

The Trustee sought an order for turnover concerning these funds and the stock.10 After
discovery and after the parties filed motions for summary judgment in which each agreed that there
were no disputed facts, this Court granted summary judgment for Dittmar and denied the turnover
in an order dated December 24, 2007.11 This Court concluded that the SARs benefits were too
remote to be rooted in the pre-bankruptcy past and were therefore not property of the estate. The
Trustee appealed that order to the BAP which affirmed.12 On further appeal, the Tenth Circuit, in
a split decision, reversed without remanding the matter.13 The Circuit’s mandate effectively operates
as an order granting the Trustee’s turnover motion. In response to that mandate, Dittmar amended
his schedules B and C to claim the SARs as property and to exempt them as exempt compensation
under KAN.STAT.ANN. § 60-2310. The Trustee objected to the exemption, asserting that the SARs
are not part of Dittmar’s “compensation” that is protected from garnishment by the Kansas statute.

Analysis

The issue here is whether the SARs benefits received by Dittmar constituted compensation
that is protected by the Kansas earnings exemption in KAN.STAT.ANN. § 60-2310.14 That statute

9 Dkt. 95, Ex. B.

10 Dkt. 16.

11 Dkt. 67. See In re Lowe, supra.

12 In re Dittmar, et al, 410 B.R. 71 (10th Cir. BAP 2009).

13 Parks v. Dittmar, supra.

14 The Trustee also objected to debtor’s exemption on the grounds of laches and that the
debtor may not exempt property recovered by the trustee after he voluntarily transferred it under
§ 522(g). Dittmar’s “delay” in claiming the exemption is easily explained by the long journey
this case has taken from an evidentiary hearing in this Court in early 2007, wherein the Court

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provides –

only the aggregate disposable earnings of an individual may be subjected to wage
garnishment. The maximum part of such earnings of any wage earning individual
which may be subjected to wage garnishment for any workweek or multiple thereof
may not exceed the lesser of: (1) Twenty-five percent of the individual's aggregate
disposable earnings for that workweek or multiple thereof; (2) the amount by which
the individual's aggregate disposable earnings for that workweek or multiple thereof
exceed an amount equal to 30 times the federal minimum hourly wage, or equivalent
multiple thereof for such longer period; or (3) the amount of the plaintiff's claim as
found in the order for garnishment.15

As used in the statute, the term “earnings” is defined at subsection (a)(1) as “compensation paid or
payable for personal services, whether denominated as wages, salary, commission, bonus or
otherwise” and “disposable earnings” is defined at subsection (a)(2) as that part of an individual’s
earnings that remain after legal deductions (like taxes) are taken out.

Do the SARs benefits fall within the definition of “compensation paid or payable for
personal services?” The Trustee argues that these benefits were more akin to stock options than
wages and, accordingly, are not compensation for work performed in the sense that wages or salary
typically are. In addition, she claims that these payments cannot be attributed to any particular pay
period, making them more like bonuses than wages. The debtor responds that even the Circuit
referred to the SARs as “compensation”16 and claims that these benefits were intended to make up
for the pay give-backs that Sprit negotiated in the collective bargaining agreements in 2005,

issued an interim order on similar turnover motions in related cases (See In re Lowe, No. 0514936,
Dkt. 35), to a fully briefed and argued appeal to the Tenth Circuit that was not decided
until the Autumn of 2010. The Court is satisfied that debtor filed his exemptions timely once he
learned (from the Circuit’s opinion) of his need to do so. The Trustee makes no mention of her §
522(g) objection in her papers and the Court deems it abandoned.

15 KAN.STAT.ANN. § 60-2310(b) (emphasis added).

16 See Parks v. Dittmar, 618 F.3d at 1204.

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rendering them the functional equivalent of earnings.

The Court concludes that the SARs were compensation paid by Spirit to the debtor as part
of the consideration for his prior work. In order to participate in the program, the debtor had to have
been employed on “day one” and remain employed on the effective date of the IPO. This
sufficiently ties the payment of these benefits to the debtor’s personal services: had he rendered no
services in the defined period, he would not have been entitled to the payment. In addition, the
SARs benefits appear to have been paid as wages with Spirit issuing paychecks with pay-stubs that
represented them. The Circuit concluded that Dittmar initially received an interest in these benefits
before he filed his petition, even though that interest was contingent upon the occurrence of a
payment event and Dittmar’s continued employment. Finally, the juxtaposition of the SARs with
the wage give-back, while not dispositive, cannot be ignored.

This Court has previously held that KAN.STAT.ANN. § 60-2310 is a wage exemption
statute.17 As the Court detailed in Urban, this statute was enacted contemporaneously with KAN.
STAT.ANN. § 60-717, the garnishment statute.18 That statute limits the attachment of an order of
garnishment to the “nonexempt” portion of a debtor’s earnings and defines that “nonexempt” portion
as those earnings “not exempt from wage garnishment pursuant to K.S.A. 60-2310.”19 As this Court

17 In re Urban, 262 B.R. 865, 867-70 (Bankr. D. Kan. 2001).

18 The Court notes that this garnishment statute, KAN.STAT.ANN. § 60-717 was
repealed in 2002, a year after this Court decided Urban. See 2002 KAN.SESS.LAWS, ch. 198, §

19. In its place, KAN.STAT.ANN. § 60-734 (2005) was enacted but the new garnishment statute
retained the key language in former § 60-717(c) at issue here.
19 The current version of the garnishment statute, KAN.STAT.ANN. § 60-734(c) (2010
Supp.) provides: “The order of garnishment must have the effect of attaching the nonexempt
portion of the judgment debtor’s earning . . . Nonexempt earnings are earnings which are not
exempt from wage garnishment pursuant to K.S.A. 60-2310, and amendments thereto.”

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further held in In re Resler, this statute permits a debtor to exempt earned but unpaid wages in the
hands of the employer.20 Here, as the Circuit has held, these benefits were unpaid as of the date of
Dittmar’s petition but he was entitled to them on that date once the conditions precedent to their
payment occurred.

The Trustee argues that Dittmar’s right to these benefits issue from the payment event, not
the work of the debtor. While it is true that were there no IPO, there would be no SARs, it is also
true that had the debtor not been employed during the eligibility periods that spanned both pre- and
post-petition time, he would not have been eligible for them. Part of his right to these payments is
attributable to his continued work for Spirit–indeed that is what his union bargained for and, as the
Circuit has concluded, his contingent right to these payments vested pre-petition.

The Trustee relies mostly on state court decisions from other jurisdictions and Kansas
bankruptcy court cases to support her assertion that the SARs are more like stock options than wages
and are therefore not exempt. Arguing from Resler, she asserts that at Dittmar’s filing, Spirit did
not hold any of the SARs for payment to him. But that is not the point here–what matters is whether
the SARs were, in the words of KAN.STAT.ANN. § 60-2310(a)(1), “compensation paid or payable.”
The Circuit held that if the SARs were payable, they were owed to Dittmar and that his enforceable
right to be paid them arose pre-petition. That is the law of this case.

The Trustee also argues that other courts have held that stock options are not wages. None
of those cases speaks to an exemption claim. Rather, all of the state court cases she relies on involve
claims under the respective states’ “wage acts,” laws that govern and generally strengthen an

20 282 B.R. 246 (Bankr. D. Kan. 2002).
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employee’s ability to enforce payment of his earnings. For example, the Kansas case Weir v.
Anaconda Co. involved a claim made by an ex-employee under the Kansas Wage Act, KAN.STAT.
ANN. § 44-313 et seq., for certain benefits that he claimed accrued under a stock option plan after
he terminated his employment.21 In Weir, the Tenth Circuit held that the stock option benefits were
not wages. In determining whether a benefit is an “earned wage” for purposes of the Kansas Wage
Act, courts are to determine whether the employment agreement places a condition precedent on
the employee’s receipt of the benefit or whether the agreement attempts to impose a condition
subsequent that amounts to a forfeiture. A condition precedent is something that must happen,
whether it be performance by a contracting party or another occurrence, before the contracting
party’s right to enforce the agreement arises. Where stock options are discretionary and based on
the worker continuing to be employed, the termination of the worker’s employment eliminates the
condition precedent. In our case, Dittmar continued to be employed per his contract and the
condition precedent to his entitlement to these benefits occurred.

Truelove v. Northeast Capital & Advisory, Inc.,22 Weems v. Citigroup, Inc.,23 and Paolini v.
Albertson’s, Inc.24 are similar cases. All deal with the enforcement of wage act or labor law claims,
not exemption statutes. In addition, the Weems court specifically mentions that a narrow definition
of wages for the purpose of the wage act is not inconsistent with the broader definition of wages in

21 773 F. 2d 1073 (10th Cir. 1985).

22 95 N.Y. 2d 220, 738 N.E.2d 770 (2000).

23 453 Mass. 147, 900 N.E.2d 89 (2009).

24 143 Idaho 547, 149 P.3d 822 (2006).

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other state laws.25

Kansas state court case law is equally unhelpful. In Coward v. Smith, the Court of Appeals
held that payments to independent contractors were not “earnings” that were protected by the
exemption statute because their amounts were influenced by factors other than the personal service
of the worker.26 Coward also held that the wage exemption protects employees, not independent
contractors. Certainly Dittmar was an employee as opposed to a contractor. Moreover, the Court
of Appeals noted that the Kansas Supreme Court has held that in order to be protected by the
garnishment statute, pay need not be regular or periodic.27 Thus, even though Dittmar’s bonuses
cannot be tied to a specific work period, they did arise from his work.

The Trustee’s argument garners little support from bankruptcy case law. She relies on In re
Rangel where a debtor sought to exempt part of his income tax refund as wages under KAN.STAT.
ANN. § 60-2310.28 There, Judge Berger held that tax refunds “are not directly traceable to wages”
because “[a]lthough [refunds are] derived from compensation for personal services, the debtors'
income tax withholdings ultimately became a “tax,” thereby severing the direct link between the
compensation and the personal services.”29 Likewise, in In re Carbaugh, the Tenth Circuit
Bankruptcy Appellate Panel dealt with an attempt to exempt funds withdrawn from an ERISA

25 900 N.E.2d at 94, n. 10.

26 6 Kan. App. 2d 863, 636 P.2d 793 (1981).

27 Id. at 865, citing Harpster v. Reynolds, 215 Kan. 327, 524 P.2d 212 (1974).

28 317 B.R. 553 (Bankr. D. Kan. 2004).

29 Id. at 556.

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plan.30 The Panel concluded that even though the funds in the ERISA account originated as wages
paid to the debtor, once the funds are withdrawn from the account, they are not exempt as wages.
The Carbaugh panel declined to extend exempt status to those funds stating that “to hold otherwise
would be to protect virtually every asset a debtor funded with wages.31 These cases address fact
situations very different from a debtor seeking to exempt a benefit that is directly payable to him as
part of the consideration for his services. A more apposite case is In re Price where a bankruptcy
judge sitting in Kansas held that a real estate agent who is, by contract, an independent contractor,
but whose commissions are subject to her broker’s control, may still claim the protection of 75 per
cent of those commissions by KAN.STAT.ANN. § 60-2310.32 If an independent contractor’s
commissions are protected by this exemption, certainly an employee’s bonus, payable pursuant to
his employment contract and earned by him through his service is, too.

There is no reason to narrow the definition of “earnings” in KAN.STAT.ANN. § 60-2310
to fit the definition of “wages” in KAN.STAT.ANN. § 44-313(c).33 Indeed, Kansas exemptions are
to be liberally construed for the benefit of the debtor.34 The New York, Massachusetts and Idaho
cases on which the Trustee relies all deal with wage claimants who have failed to meet the condition
precedent to receiving stock option benefits because they terminated their employment. Each court

30 278 B.R. 512 (10th Cir. BAP 2002).

31 Id. at 524.

32 195 B.R. 775 (Bankr. D. Kan. 1996).

33 “Wages” “as used in this act” are defined in KAN.STAT.ANN. § 44-313(c) as

“compensation for labor or services rendered by an employee, whether the amount is determined
on a time, task, piece, commission or other basis less authorized withholding and deductions.”
34 Nohinek v. Logdson, 6 Kan. App. 2d 342, 344, 628 P.2d 257 (1981).
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held that the termination of the claimants’ employment meant that at least one of the conditions
precedent to the options had not occurred. The claimants’ rights to the options did not vest.

In this case at the Trustee’s urging, the Circuit has held that Dittmar’s right to the SARs
vested pre-petition. Dittmar met the condition precedent when he continued his employment for the
required duration and was on the job when the payment event occurred. After all, that was the
behavior that Spirit likely intended to incentivize by offering the EPP in the first place. When the
condition precedents of Dittmar’s incumbency and Spirit’s declaration of the event both occurred,
Spirit was obligated to pay the SARs to Dittmar. The SARs were “bonuses” and bonuses are
expressly mentioned in the definition of “earnings” in the exemption statute.

Throughout this case, the Trustee has argued that these assets were property of the estate
even though they were contingent because the debtor was entitled to them once the defined
conditions were met. One of the conditions was that the debtor continue to work for Spirit for a
defined duration. The Trustee cannot say in the same breath that these bonus payments, payable
to the debtor in consideration of his pre- and post-petition labor and only upon condition of his
remaining employed at Spirit for the defined period, are so unrelated to the services he has rendered
that they cannot be “earnings.” The SARs benefits were payable to Dittmar as compensation for his
work under the collective bargaining agreement between his union and Spirit.

These payments are protected by the exemption of KAN.STAT.ANN. § 60-2310(b). The
Trustee’s claim to them is limited to the lesser of 25 per cent of Dittmar’s aggregate disposable
earnings for the work week in which he was paid these benefits or “the amount by which the
individual's aggregate disposable earnings for that workweek or multiple thereof exceed an amount
equal to 30 times the federal minimum hourly wage, or equivalent multiple thereof for such longer

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period.” These amounts should be easily calculated, but if the parties are unable to agree on the
appropriate amounts, the Court will convene a brief evidentiary hearing for that purpose.
To the extent set forth above, the Trustee’s objection to the debtor’s exemptions is
OVERRULED.
# # #

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