Opinion
Case No. 95-13940-AM, Adversary Proceeding No. 95-1506
July 16, 1996
Ms. Christina Joligard, Meadowbrook, PA, for Plaintiff, pro se
Mr. Pierre Joligard, Arlington, Va, for Defendant, pro se
MEMORANDUM OPINION
This matter is before the court on a motion for summary judgment filed by the plaintiff. A hearing was held on June 18, 1996, at which the plaintiff heard the arguments of the parties, both of whom are proceedingpro se in this litigation. At the conclusion of the hearing, the court took the matter under advisement and is now prepared to rule. For the reasons set forth in this opinion, the court concludes that the plaintiff is entitled to summary judgment determining that certain obligations arising under a state court child custody and support order are nondischargeable.
Facts
Certain of the facts are undisputed; others are hotly controverted. The undisputed facts may be briefly stated. The plaintiff and the debtor were divorced on October 8, 1993 by a final decree of divorce entered by the Circuit Court of Arlington County, Virginia. Among other provisions, that decree awarded the parties joint custody of their minor child, Mischa B. Joligard. The decree concluded by referring "all further matters" in the "proceedings" to the Arlington County Juvenile and Domestic Relations Court. The plaintiff subsequently brought an action in the Juvenile and Domestic Relations Court of Arlington County, seeking a change of custody. That court granted sole custody to the plaintiff and ordered the debtor to pay child support to the plaintiff and well as to share the cost of certain medical expenses. The debtor took an appeal to the Circuit Court of Arlington County, which heard the matter de novo. That court, after three days of hearing in January 1995, entered a final order dated April 14, 1995, nunc pro tunc to January 25, 1995. That order found that the debtor "does not accept the magnitude of Mischa Joligard's medical and emotional problems, although the preponderance of the evidence shows that the child is in distress and in need of medical attention" and that the debtor "has failed to cooperate in the therapy of the minor Mischa Joligard." The decree granted the plaintiff sole custody of Mischa and, relevant to the present controversy, ordered the debtor to make the following payments:
1. Child support payments to the plaintiff of $175 per week beginning January 25, 1995.
2. A payment to the plaintiff by April 25, 1995, of $2,319, plus interest at the statutory rate of 9% from May 14, 1994 "toward Mischa's medical expenses."
The Circuit Court order provides no further information concerning how this sum was calculated. However, the July 13, 1994 order of the Juvenile and Domestic Relations Court provides the following explanation: "This sum represents Respondent's [i.e., the debtor's] one-half share of the medical bills owed to Dr. Ronald D. Matthews for psychological evaluations, Respondent's one-half share of the medical bills owed to Dr. Elizabeth Finch and other medical/dental professionals through April 30, 1994, as well as one-half the fee charged by Dr. Matthews to attend and give testimony in these proceedings." Joligard v. Joligard, No. A-10173-01-A, Order, p. 10.
3. Child support arrearages to the plaintiff in the amount of $2,037.50 by April 25, 1995.
4. A payment to the plaintiff by April 25, 1995, of $6,925 "toward her attorney's fees." The decree recites that this sum "includes the costs of the trial.
5. A payment to the plaintiff by April 25, 1995, of $794.10 "toward the costs of Court reporting incurred in this matter."
The court reporting firm, A. L. F. Court Reporting, that took the proceedings in state court, is also the official reporter for this court. In ruling on the present motion for summary judgment, this court has not considered or relied on any transcript prepared by A. L. F.
6. A payment to William Findler, Esquire, Mischa's guardian ad litem, of $4,200 by April 25, 1995.
These fees are the subject of a separate complaint to determine dischargeability (Adversary Proceeding No. 95-1484) filed by the guardian ad litem. The court concurs with the debtor that the plaintiff in the present adversary proceeding lacks standing to litigate the dischargeability of the guardian ad litem fees, since the order of the Circuit Court of Arlington County imposed no liability for such fees on Mrs. Joligard. In any event, a separate judgment has been entered in Adversary Proceeding No. 95-1484 determining that the fees owed to the guardian ad litem are nondischargeable, and those fees will not be further considered in the context of the present adversary proceeding.
On September 7, 1995, the debtor filed a voluntary petition in this court under chapter 7 of the Bankruptcy Code and was granted a discharge on December 14, 1995. On December 11, 1995, the plaintiff filed the adversary complaint that is presently before the court seeking a determination that the obligations arising from the April 14, 1995, order are excepted from discharge under § 523(a)(5) and (a)(15), Bankruptcy Code. The debtor filed an answer and motion to dismiss, as well as a "supplementary answer," and the parties are now at issue.
The debtor had filed a previous chapter 7 petition on May 2, 1995 (Case No. 95-11838), which was dismissed after he failed to appear at the meeting of creditors.
The motion to dismiss — most of which would have required consideration of matters outside the four corners of the complaint — was never set for hearing. For the purposes of the present motion, the court treats it as a cross-motion for summary judgment.
Those are the undisputed facts. The disputed facts are the correctness of the underlying dispute litigated in, and adjudicated by, the Arlington County Circuit Court. Specifically, the debtor and his former wife disagreed over the appropriateness of the medical care being provided to Mischa, and, in particular, the administration of psychotropic drugs to Mischa. The debtor strongly opposed, and continues to oppose, the use of such drugs. He asserts that the administration of such drugs constituted child abuse and was found to be improper by doctors at Fairfax Hospital. Additionally, the debtor asserts that the plaintiff is neglecting the child's medical needs by not having him treated for Silver-Russell Syndrome. Finally, the debtor asserts that the plaintiff's present financial circumstances are sufficiently comfortable that she does not need to be reimbursed for the medical expenses, attorney's fees and court reporter fees that she had already paid.
Conclusions of Law and Discussion I.
This court has jurisdiction of this controversy under 28 U.S.C. § 1334 and 157(a) and the general order of reference entered by the United States District Court for the Eastern District of Virginia on August 14, 1984. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I). Venue is proper in this District under 28 U.S.C. § 1409(a).
II.
Under § 523, Bankruptcy Code, a chapter 7 discharge does not discharge an individual debtor from certain kinds of debts, among them the following:
(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, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); 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;
* * *
(15) not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless —
(A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or
(B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor[.]
The debtor does not dispute that the prospective child support payments of $175 per week and the arrearage of $2,037.50 are nondischargeable under § 523(a)(5), Bankruptcy Code. He vigorously disputes, however, that the attorney fees, medical expenses, and court reporter fees are in the nature of support.
According to the plaintiffs motion for summary judgment, the debtor has paid this sum. There also appears to be no dispute that he is current on his weekly payments.
III.
A motion for summary judgment in an adversary proceeding is governed by F.R.Bankr.P. 9056, which incorporates Fed.R.Civ.P. 56. Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, a court should believe the evidence of the non-moving party, and all justifiable inferences must be drawn in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Nevertheless, not just any factual dispute is sufficient to bar summary judgment; the dispute must be as to a "material" fact. Id. at 247-248. Where, as here, it is the plaintiff that is moving for summary judgment, this means that the dispute must concern a fact which, if established, would defeat a required element of the moving party's case or constitute an affirmative defense.
"By its very terms, [Rule 56] provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted."
A.
As an initial matter, the court notes that the plaintiff's complaint, to the extent it seeks relief under § 523(a)(15), appears to have been untimely filed. Under § 523(a), Bankruptcy Code, 16 categories of debts are made nondischargeable in a chapter 7 case. As to 12 of those categories — including § 523(a)(5) support debts — there is no time limit for filing a nondischargeability complaint, and the determination of nondischargeability may be made either by the Bankruptcy Court or by the court in which the claim is asserted. F.R.Bankr.P. 4007(b). However, with respect to four of the categories — including § 523(a)(15) divorce or property settlement debts — only the Bankruptcy Court may make a determination of nondischargeability, and even then only if a complaint seeking such determination is filed within 60 days of the first date set for the meeting of creditors under § 341, Bankruptcy Code. § 523(c), Bankruptcy Code; F.R.Bankr.P. 4007(c).
"A complaint other than under § 523(c) may be filed at any time."
". . . the debtor shall be discharged from a debt of the kind specified in paragraph (2), (4), (6), or (15) of subsection (a) of this section, unless, on request of the creditor to whom such debt is owed, and after notice and a hearing, the court determines such debt to be excepted from discharge. . . ."
"A complaint to determine the dischargeability of any debt pursuant to § 523(c) of the Code shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a). . . . On motion of any party in interest, after hearing on notice, the court may for cause extend the time fixed under this subdivision. The motion shall be made before the time has expired." (emphasis added).
In the present case, the first date set for the meeting of creditors was October 5, 1995. Sixty days from that date was December 4, 1995. The plaintiffs complaint was filed on December 11, 1995, one week later. As noted above, under F.R.Bankr.P. 4007(c), the court may extend the deadline to file a dischargeability complaint only if the request for the extension is made "before the time has expired," and the deadline may not be extended after it has expired based on excusable neglect. Shunck v. Santos (In re Santos), 112 B.R. 1001, 1008 (9th Cir. BAP, 1990) ("there is no discretion to enlarge the time periods [for filing complaints objecting to discharge or to determine dischargeability] on the basis of excusable neglect when the request is made after the time period as expired."); Farouki v. Emirates Bank Int'l Ltd. 14 F.3d 244, 249 (4th Cir. 1994) ( dicta, citing Santos). Since the plaintiff's complaint was filed outside the 60-day period, and since the court is without discretion to enlarge the time in the absence of a request for that purpose made before the original deadline had expired, the court is without power to make a determination of nondischargeability under § 523(a)(15).
B.
Since there is no corresponding time bar under § 523(a)(5), however, it is necessary to consider whether the undisputed facts entitle the plaintiff to a determination that the attorney's fees, court reporting fees, and medical expenses constitute support — either for Mischa or the plaintiff — so as to be excepted from discharge. It is well settled in this Circuit that attorney fee awards and related litigation costs incurred in a proceeding to establish support may themselves constitute support within the meaning of § 523(a)(5). Roberson v. Roberson (In re Roberson), 187 B.R. 159, 163 (Bankr. E.D. Va. 1995) (attorney fees); Walker v. Laing (In re Laing), 187 B.R. 531 (Bankr. W.D. Va. 1995) (guardian ad litem fees and costs of psychological testing and evaluation of children in connection with custody proceeding); Silansky v. Brodsky, Greenblatt Renchan (In re Silansky), 897 F.2d 743 (4th Cir. 1990) (attorney's fees); Foiles v. Taylor, 174 B.R. 692 (E.D.Va. 1994) (commissioner in chancery fees). The question of whether a particular debt is in the nature of support is largely a question of intent. Beaton v. Zerbe (In re Zerbe), 161 B.R. 939, 941 (E.D.Va. 1994). In a case where a fact finder such as a judge makes the determination that one party must pay the other's attorney's fee, it is the intention of the finder of fact that controls. Id. The burden of proof is on the objecting party to prove that the debt is actually in the nature of support, and such proof must be by a preponderance of the evidence. Roberson, supra, at 163.
The April 14, 1995, order does not expressly characterize the obligations at issue here as being in the nature of support, and there has been no transcript filed of the state court proceedings. The order does, however, reflect that the court made findings as to the earning capacity of both parents. Additionally, the defendant has admitted, in response to requests for admission, that at the hearing the state court reviewed the income tax returns of the defendant from 1990 through 1994, and the plaintiff has filed an affidavit that the medical expenses addressed by the April 14, 1995, order included the usual medical care for Mischa, together with the cost of testing and examinations in preparation for the hearing, and that the attorney's fees the debtor was ordered to pay were to reimburse the plaintiff for payments she actually made to her counsel in the support and custody hearing.
See, In re Grady, 180 B.R. 461 (Bankr.E.D.Va. 1995), where Judge Adams of this court noted that, in determining the intent of the state court in awarding attorney's fees, "The Court may look to a variety of factors to ascertain the intent of the circuit court judge including pleadings, orders, transcripts, and the language of the divorce decree itself," citing Bangert v. McCauley (In re McCauley), 105 B.R. 315, 319-320 (E.D.Va.1989).
The court found that the debtor "earns or has the capacity to earn at least $40,000 annually" and that the plaintiff "earns $28,000 per year."
With respect to the medical expenses for Mischa, it is difficult to imagine how a court order for their payment would not be in the nature of a support obligation. Next to food and shelter, few needs are more basic or essential to a child's welfare than medical care. The debtor asserts, however, that whatever may be the general rule, he is prepared to prove that Mischa not only did not benefit from, but in fact was harmed by, the medical care, and thus the expenses incurred should not be considered "support." The issue of Mischa's medical treatment was the central controversy before the Circuit Court of Arlington County. The debtor vigorously participated in the three-day hearing before that court and was represented by counsel. Since the issue was actually litigated before a court having both subject-matter and in personam jurisdiction and was necessary to that court's ruling, settled principles of collateral estoppel prevent the debtor from relitigating in this court the merits of that controversy. If the findings of the Circuit Court of Arlington County were erroneous, they could have been appealed; but they cannot be collaterally attacked in the context of this nondischargeability proceeding.
The question of whether the attorney's fees and court reporter fees were intended to be in the nature of support presents a much closer case, particularly as the order is notably silent as to the state court's rationale for requiring the debtor to pay them. However, since the only matters being litigated at the hearing that resulted in the April 14, 1995, order were those directly involving the child's welfare — that is, custody, support, and visitation — it is a reasonable inference that the court had to have found that the litigation fees the plaintiff incurred were necessary to promote and protect the child's best interests. See, Roberson, supra, at 161 (where "child support issues occupied a significant portion of the ultimate divorce decree," the court determined as a matter of fact "that the awarded attorneys' fees and court costs are integrally connected with the award of child support"). The debtor has pointed to nothing — except his assertion that the state court reached the wrong result — tending to show that the attorney's fees and court reporting fees were incurred other than in an effort to advance the child's welfare. Consequently, the court concludes that the plaintiff has carried her burden of showing that there is no material disputed issue of fact related to the attorney's fees and court reporter fees that the Circuit Court of Arlington County ordered the debtor to pay, and that such fees are in the nature of child support.
This court does not adopt a hard and fast rule that attorney's fees and litigation costs awarded to the prevailing party in a child support or child custody proceeding will always constitute support. See, Foiles v. Taylor, 174 B.R. 692, 696 (E.D.Va. 1994) (cautioning against per se rule). The fact that the fees were incurred in connection with such a proceeding, however, does reasonably give rise to an inference that the court's purpose in awarding them was to promote the child's welfare. Such an inference, in the absence of evidence or justifiable inferences to the contrary, may be sufficient to carry the day.
The debtor's contention that his former wife is comfortably well off in a financial sense and thus does not need to be reimbursed would be relevant in the § 523(a)(15) context, since under that provision the court must balance the detriment to the debtor of not discharging the debt against the detriment to the nondebtor party of discharging the debt. Additionally, an analysis of the wife's financial situation would be appropriate if the issue were one of support for her. But here, the context of the state court's award adequately demonstrates that the payments were intended as support for Mischa.
Accordingly, a separate order will be entered granting the motion for summary judgment and determining that the medical expenses, attorney's fees and court reporter fees that the debtor was ordered to pay are nondischargeable under § 523(a)(5), Bankruptcy Code. The motion for summary judgment will be denied to the extent it seeks a determination of nondischargeability under § 523(a)(15) or with respect to the guardian ad litem fees.