The opinion of the court was delivered by: Marvin E. Aspen, District Judge
MEMORANDUM OPINION AND ORDER
Currently before us is debtor Larry Eden's ("Eden") appeal of the Bankruptcy Judge's November 26, 2002 order stating that funds tendered to creditor Robert Chapski ("Chapski") were not property of the bankruptcy estate and, therefore, were not protected by the automatic stay provisions of 11 U.S.C. § 362. For the following reasons, we affirm the order of the Bankruptcy Judge.
On February 20, 1996, Eden filed a petition for relief under Chapter 13 of the bankruptcy code. Chapski was included in the list of unsecured creditors in Eden's Schedule F as the holder of a contingent and disputed claim for attorney's fees in the amount of $40,000.00. At the time of filing the Bankruptcy petition, Eden was involved in a dissolution of marriage proceeding in Illinois state court. The dissolution of marriage proceedings continued in the state court during the pendency of Eden's bankruptcy case. Chapski represented Eden's wife, Jean, in the dissolution proceedings.
On August 2, 1996, Bankruptcy Judge Squires confirmed Eden's Second Amended Chapter 13 Plan. Under the terms of the plan, Eden was to make payments of $1,088.00 a month over a term of sixty months. Among other provisions, the plan provided that "[p]roperty of the estate shall revest in the debtor upon confirmation of the plan." Eden was also required to submit to the Trustee "all or such portion of his future income and earnings . . . as is necessary for the execution" of the plan. The plan was to be funded initially with a lump sum payment of $5,000 received as a refund from the IRS. Thereafter, "Debtor, Debtor's employer, or other entity shall remit the sum of $1,088.00 per month to the Trustee for the benefit of creditors during the term of this plan." The plan did not identify the source of the funds that would be used to make monthly payments to the Trustee.
On August 5, 1997, approximately one year after confirmation of Eden's Chapter 13 plan, an Illinois state court entered a judgment dissolving Eden's marriage. The Judgement of Dissolution contained a provision ordering Eden to his ex-wife's attorney's fees in the amount of $17,500 ("the pre-dissolution fees"). The pre-dissolution fees were payable jointly to Eden's ex-wife and to Chapski. Eden appealed the Judgment of Dissolution in the Illinois Appellate Court. On December 18, 1997, the court entered an order awarding attorney's fees to Eden's ex-wife in connection with her defense of the appeal ("prospective fee order"). The prospective fee order required Eden to pay Chapski $2,500.00 by April 18, 1997.
Eden failed to pay the amounts due under the Judgment of Dissolution and prospective fee order. On October 5, 1998, Chapski filed a fee application in the State Court requesting $8,964.25 for work done on Eden's appeal from the Judgment of Dissolution. Those fees ("post-dissolution fees") all relate to services rendered by Chapski after Eden filed his bankruptcy petition. On October 8, 1998, Eden filed a motion to enforce automatic stay in which he asked the Bankruptcy Court enjoin Chapski's efforts to collect both the pre-dissolution and post-dissolution fees. On October 27, 1998, Chapski's motions came before the state court for hearing. At the commencement of the proceedings, the state court judge announced that because of Eden's bankruptcy and the pending Motion to Enforce Stay, he would consider only the rule to show cause entered upon Eden's failure to comply with the prospective fee order. The state court ultimately found Eden in indirect civil contempt of court. On November 16, 1998, Eden filed a Verified Complaint for Injunction and an Emergency Motion for Injunction in the Bankruptcy Court. Eden complained that although the issue of whether Chapski could collect the post-dissolution fees was under advisement by the bankruptcy court, Chapski had continued his efforts to collect the prospective fee award through contempt proceedings in the state court. Eden argued that his wages were the only source of funds available to him to pay the amount awarded to Chapski by the state court. Thus, Eden argued, there was no non-estate property which he could use to satisfy the state court judgment.
On December 8, 1988, the state court entered an agreed order between Eden, his ex-wife, and Chapski. The agreed order stated that Eden had tendered to Chapski $2500.00 and that Chapski had deposited that sum into the Chapski Trust Account. In addition, Eden deposited $1200.00 into the Trust Account to cover a portion of Chapski's attorney's fees and costs that might be incurred as a result of the bankruptcy proceedings.
On November 12, 1999, Eden filed a motion for turnover of the funds in the Chapski Trust Account, alleging that the money in the trust account came from his wages. According to the Bankruptcy Court, however, Eden did not present live witness testimony or other evidence to establish that fact. Chapski and Jean did not present to the Bankruptcy Court evidence that the funds in the Chapski Trust Account were property of the estate.
The Bankruptcy Judge found that the funds in the Chapski Trust Account were deposited on account of the Debtor's failure to comply with the prospective fee order. The Judge found that because the prospective fee order was entered after Eden filed his bankruptcy petition, Eden's obligation to pay those fees is post-petition debt. The Judge further found that the bankruptcy estate included only so much of Eden's income as was needed to execute his Chapter 13 plan. Because Eden failed to present evidence concerning the sources and amount of his income, the Court found that he could not establish that payment of the fees to Chapski interfered with his fulfillment of the plan. The Bankruptcy Judge therefore found that Eden did not carry his burden of establishing that the funds in the Chapski Trust Account came from Eden's bankruptcy estate. Eden now appeals the decision of the Bankruptcy Court, and argues that the payments to Chapski constituted wages under 11 U.S.C. § 1306 and, therefore, protected property of the bankruptcy estate under 11 U.S.C. § 362.
In a bankruptcy appeal, we examine the Bankruptcy Judge's factual findings for clear error and its legal conclusions de novo. See Meyer v. Rigdon, 36 F.3d 1375, 1378 (7th Cir. 1994); Aetna Bank v. Dvorak, 176 B.R. 160, 163 (N.D. Ill. 1994). We also review de novo mixed questions of fact and law. See In re Rovell, 232 B.R. 381, 386 (N.D. Ill. 1998). De novo review requires the district court to make an independent examination of the Bankruptcy Court's judgment without giving deference to that court's analysis or conclusions. Because the question before us is one of fact and law we review the findings of the Bankruptcy Judge de novo. The Bankruptcy Judge held, and we agree, that the transfer from Eden to Chapski was not property of the bankruptcy estate and, therefore, was not protected by the automatic stay provisions of 11 U.S.C. § 362.
A Chapter 13 debtor may bring an action for turnover to recover funds or other assets belonging to his or her estate. Lauria v. Titan Security, Ltd., 243 B.R. 705, 708 (Bankr. N.D. Ill. 2000). The debtor seeking turnover has the burden of proof in such an action. In re Rosenzweig, 245 B.R. 836, 840 (Bankr. N.D. Ill. 2000). According to the Bankruptcy Code, property of the estate is defined as of the date when a debtor's bankruptcy petition is filed. See 11 U.S.C. § 541; see also In re Carousel Int'l Corp., 89 F.3d 359, 362 (7th Cir. 1996). Although "earnings from services performed by an individual debtor after commencement of the case" are generally excluded from property of the estate, 11 U.S.C. § 541 (a)(6), the definition of property of the estate is modified by § 1306(a) in Chapter 13 cases. See Montclair Property Owners Ass'n, Inc. v. Reynard, 250 B.R. 241, 245 (Bankr. E.D. Va. 2000). Section 1306(a) provides that:
(a) Property of the estate includes, in addition to
the property specified in section 541 of this title
— (1) all property of the kind specified in such
section that the debtor acquires after the
commencement of the case but before the case is
closed, dismissed, or converted to a case under
chapter 7, 11, or 12 of this title, whichever occurs
first; and (2) earnings from services performed by the
debtor after the commencement of the case but before
the case is closed, dismissed, or converted to a case
under chapter 7, 11, or 12 of this title, whichever
11 U.S.C. § 1306 (a). Reading § 1306 alone, it would appear ...