MEMORANDUM AND ORDER
VRATIL, District Judge.
This matter comes before the Court on Defendant Peggy Elliott's Motion to Alter or Amend Judgment, or For a Certificate Pursuant to B.R. 7054(b) (Doc. # 20), Defendant Leibner's Motion to Reconsider (Doc. # 22), and the Motion of Defendants James R. Orr and Bennett, Lytle, Wetzler, Winn & Martin to Reconsider (Doc. # 24). Originally, plaintiff Victor W. Kearns, Jr., appealed the bankruptcy court's orders which dismissed his adversary proceeding for willful violation of the automatic stay. On November 23, 1993, the Court issued a Memorandum and Order (Doc. # 18) wherein the Court affirmed the bankruptcy court's order dismissing defendant Larry McClain and reversed the bankruptcy court's orders dismissing defendants James R. Orr, Bennett, Lytle, Wetzler, Winn & Martin [Bennett Lytle], Lynda J. Leibner, and Peggy A. Elliott. See In re Kearns, 161 B.R. 701 (D.Kan.1993). Defendants Elliott, Leibner, Orr, and Bennett Lytle urge the Court to reconsider that order.
Plaintiff alleges that on June 16, July 7, and July 30, 1992, defendants prosecuted indirect civil contempt proceedings against him for nonpayment of maintenance and child support, knowing that he had filed bankruptcy and that the automatic stay had not been modified. Plaintiff contends that such actions constitute a willful violation of the automatic stay. In the November 23 order, the Court found that the alleged contempt proceedings did not fall under § 362(b)(2), and therefore were subject to the automatic stay, because they were brought against plaintiff personally and not against property which was not property of the estate. On further reflection, the Court finds that holding erroneous on the record before the Court. The Court therefore withdraws portion "C" of its order entitled "Section 362(h)," 161 B.R. at 705-706, and substitutes the following:
C. Section 362(h)
The filing of a bankruptcy petition operates as a stay against the enforcement of a judgment or proceedings against the debtor and/or property of the estate. 11 U.S.C. § 362(a). A deliberate act in violation of the stay which the violator knows to be in existence justifies an award of actual damages under § 362(h). See In re Drexel Burnham Lambert Group Inc., 120 B.R. 724, 738 (Bankr.S.D.N.Y.1990). An additional finding of maliciousness or bad faith warrants the imposition of punitive damages. Id. If there is any uncertainty as to whether the automatic stay applies, the prudent practitioner should petition the court for clarification. See, e.g., Matter of Brock, 58 B.R. 797, 804 (Bankr.S.D.Ohio 1986); Matter of Daugherty, 117 B.R. 515, 517 (Bankr.D.Neb. 1990). Otherwise, counsel takes a calculated risk of being held in contempt. Brock, 58 B.R. at 804.
The record is unclear whether the alleged contempt proceedings were an attempt to coerce collection of plaintiff's support obligation or to punish plaintiff for disregarding the previous orders of the Kansas District Court.
On the other hand, plaintiff also appears to allege that the contempt proceedings had a collection motive. Plaintiff alleges in paragraph 35 of the complaint that defendants' acts "in no way relate to an attempt to levy against non-exempt property that is not property of the bankrupt's (Kearns) estate and which by operation of law passed into the hands of the Trustee in Bankruptcy." Complaint, ¶ 35. Although this allegation is somewhat ambiguous, construed broadly it appears to claim that defendants' actions were an attempt to levy against property of the estate.
Section 362(b)(2) excepts from the automatic stay the collection of nondischargeable support obligations from property that is not property of the estate. 11 U.S.C. 362(b)(2). As a Chapter 7 debtor, plaintiff's post-petition earnings were not property of the estate and were available along with any exempt property and/or property acquired post-petition to pay nondischargeable support obligations. See In re Weidenhammer, 82 B.R. 383, 385 (Bankr.E.D.Pa.1988). Because the bankruptcy court had already decided on January 21, 1992, that plaintiff's support obligations were truly in the nature of support and therefore nondischargeable under § 523(a)(5),
The bankruptcy court found that the alleged contempt proceedings fell under § 362(b)(2) because there was "no indication that any of the defendants attempted to collect support from property of the estate." Order Dismissing Complaint Against Defendants Orr and Bennett, Lytle, ROA No. 20. The Court, however, finds this ruling erroneous on the pleadings before the bankruptcy court. On a motion to dismiss, the court must assume plaintiff's factual allegations to be true. Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976). Although paragraph 35 of the complaint is ambiguous, the Court is under a duty to construe pro se pleadings liberally. Therefore, the Court must construe plaintiff's complaint to state a claim to
IT IS THEREFORE ORDERED THAT Defendant Peggy Elliott's Motion to Alter or Amend Judgment, or For a Certificate Pursuant to B.R. 7054(b)