Opinion
No. 7-02-11494 MA, Adversary No. 02-1122 M
April 8, 2004
Charles E. Buckland, Albuquerque, NM, for Plaintiff
MEMORANDUM
The Court held a trial on the merits of this adversary proceeding to determine the dischargeability of a particular debt under 11 U.S.C. § 523(a)(5) on March 29, 2004 , at which time the Court took the matter under advisement. Plaintiff was represented by Charles E. Buckland. Defendant represented himself, pro se. After considering the evidence presented at trial, and, being otherwise sufficiently informed, the Court finds that Plaintiffs cause of action does not fit within the parameters of 11 U.S.C. § 523(a)(5). The debt at issue, is, therefore, dischargeable, and judgment will be entered in favor of Defendant.
Plaintiff filed this adversary proceeding to except from discharge a debt Defendant incurred during Plaintiffs representation of Defendant in connection with child support and child custody matters before the state court. Plaintiff asserts that the debt for attorneys fees is non-dischargeable under 11 U.S.C. § 523(a)(5). That section provides:
A discharge under section 727 . . . of this title does not discharge an individual debtor from any debt
(5) to a spouse, former spouse, or child of the debtor, for alimony to maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that
(A) such debt is assigned to another entity . . .; or
(B) such debt includes a liability designated as alimony, maintenance or support, unless such liability is actually in the nature of alimony, maintenance, or support.
Plaintiff asserts that because the attorneys fees were incurred in connection with a child support matter, they are in the nature of support, and, therefore non-dischargeable under 11 U.S.C. § 523(a)(5).
Plaintifffs argument overlooks the plain language of the statute which requires that the debt at issue be to a spouse, former spouse, or child of the debtor. 11 U.S.C. § 523(a)(5). Here, the debt at issue is for attorneys fees due Plaintiff for his representation of Defendant in child support matters. It is not a debt owing to the Defendants spouse or former spouse or a child of the Defendant. It is not a debt for attorneys fees incurred by Defendants spouse or former spouse in connection with child support or child custody issues which Defendant was ordered to pay. See In re Hicks, 65 B.R. 227, 229 (Bankr. D. N.M. 1986) (finding debt for attorneys fees incurred by debtors former spouse in connection with child custody issues which debtor was obligated to pay was in the nature of support and, therefore, non-dischargeable under 11 U.S.C. § 523(a)(5)). The fact that the debt was incurred in connection with a child support matter does not, by itself, render the debt non-dischargeable under 11 U.S.C. § 523(a)(5). [T]he language of the statute dictates that if the obligation is not one owed to the spouse, former spouse or child of the debtor, it is not non-dischargable under section 11 U.S.C. § 523(a)(5), even though it is in the nature of support. 4 Collier on Bankruptcy ¶ 523.11[4] (Alan N. Resnick and Henry J. Sommer, eds., 15 th ed. rev. 2003 ). See also In re Lutz, 128 B.R. 244 (Bankr. W. D. Mo. 1991) (holding that debt owed to debtors sister for support of debtors child was dischargeable). A Tenth Circuit case, Miller v. Gentry, 55 F.3d 1487 (10 th Cir. 1995), applying Tenth Circuit precedent, broadly interpreted the term support to include fees payable directly to a guardian ad litem, stating that the emphasis should be placed on the nature of the debt, rather than on the identity of the payee. Miller v. Gentry, 55 F.3d 1487, 1490 (10 th Cir. 1995) (discussing and applying Jones v. Jones (In re Jones), 9 F.3d 878, 881-882 (10 th Cir. 1993)). Both Jones and Miller are clearly distinguishable from the case at bar. In both cases, the debtor/ ex-spouse was ordered by the state court to pay for the attorneys fees incurred by the non-debtor/ ex-spouse in connection with child custody proceedings. In this case, the debt at issue was incurred by the Debtor for his own attorneys fees.
In addition, as noted by the Tenth Circuit in Miller, Jones does not acknowledge the statutory language requiring that a debt be to a spouse, former spouse, or child of the debtor in order to be nondischargeable under § 523(a)(5). Miller, 55 F.3d at 1490. [S]ection [§ 523(a)(5)] is very clear that the debt must be to the spouse or ex-spouse, or the children of the marriage relationship. Cooper v. Garcia (In re Garcia), 174 B.R. 529, 531 (Bankr. W. D. Mo. 1994). Regardless of the broad meaning afforded the words in the nature of support the debt must nevertheless normally be payable to a spouse, former spouse, or child of the debtor in order to give full meaning to all of the words in the statute. In re Wise, 281 B.R. 248, 251 (Bankr. M. D. Pa. 2002).
Based on the foregoing, the Court concludes that the debt at issue is dischargeable in Defendants bankruptcy proceeding. This Memorandum constitutes the Courts findings of fact and conclusions of law in accordance with Rule 7052, F.R.Bankr.P. An appropriate judgment will be entered.
I hereby certify that a true and correct copy of the foregoing was either electronically transmitted, faxed, delivered, or mailed to the listed counsel and parties, on the date file-stamped above.