Opinion
No. 01-81652; Adv. Nos. 01-8109, 01-8110
May 24, 2002
CONSOLIDATED OPINION
Before the Court are the separate motions for summary judgment filed by ANTHONY P. CORSENTINO (CORSENTINO), the Plaintiff in Adv. No. 01-8109, and TARA SANGUELDOLCE (TARA), the Plaintiff in Adv. No. 01-8110, against STEVEN B. ROSENBERGER (STEVEN), the Defendant in both proceedings. The Court has consolidated its opinion in these cases because they share the same defendant and present common issues of bankruptcy law under § 523(a)(5) of the Bankruptcy Code.
The marriage of TARA and STEVEN was dissolved in 1994. Pursuant to a marital settlement agreement and joint parenting agreement, TARA became the primary residential parent of MORGAN ROSEN BERGER (MORGAN), the parties' only minor child. In the summer of 2000, STEVEN petitioned the state court to modify custody and for an order of protection, alleging that TARA violated the parenting agreement by deciding to home school MORGAN without consulting him and raising serious accusations of misconduct against TARA'S current spouse. The state court appointed CORSENTINO as guardian ad litem to represent MORGAN'S interests. Following an evidentiary hearing, the state court denied STEVEN'S petition to modify custody, finding that he failed to demonstrate a change of circumstances necessitating a modification of custody.
In March, 2001, the state court awarded CORSENTINO guardian ad litem fees in the amount of $2,400 and entered a judgment against STEVEN for that amount and granted TARA'S request for attorney fees in the amount of $8,501.20, entering a judgment against STEVEN for that amount. Less than one month later, having failed to pay any of the fees due under the order, STEVEN filed a Chapter 7 petition in bankruptcy, listing both TARA and CORSENTINO as unsecured creditors. CORSENTINO and TARA filed these adversary proceedings seeking a determination that the debts owed to them are nondischargeable under § 523(a)(5) of the Bankruptcy Code. 11 U.S.C. § 523(a)(5). They both filed motions for summary judgment, contending that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. CORSENTINO and TARA assert that the guardian ad litem fees and attorney fees are "in the nature of support." STEVEN contends that MORGAN'S support was not an issue in the state court proceedings and that this Court must conduct its own inquiry as to the nature of the state court proceedings. A hearing was held on the motions and the matter was taken under advisement.
In order to prevail on a motion for summary judgment, the movant must meet the statutory criteria set forth in Rule 56 of the Federal Rules of Civil Procedure, made applicable to adversary proceedings by Federal Rule of Bankruptcy Procedure 7056. Rule 56(c) provides in part:
[T]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). The primary purpose for granting a summary judgment motion is to avoid unnecessary trials when there is no genuine issue of material fact in dispute. Trautvetter v. Quick, 916 F.2d 1140 (7th Cir. 1990). The moving party bears the burden of proof that no issue of material fact exits. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If this burden is met, the non-moving party must establish by specific allegations that there is a genuine issue of material fact. Id.
Section 523(a)(5) excepts from discharge any debt "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 [court order or settlement agreement]."
It is federal law which governs the determination of whether a debt is actually in the nature of alimony, maintenance or support. In re Reines, 142 F.3d 970 (7th Cir. 1998). While state law is not binding, it nevertheless provides guidance. In re Smith, 273 B.R. 669 (Bankr.N.D.Fla. 2002).
A majority of courts have consistently held that attorney fees incurred during custody disputes are in the nature of support, absent unusual circumstances. Bankruptcy Judge Carol Doyle of the Northern District of Illinois, recently examined this issue in In re Ramirez, 2000 WL 356314 (Bankr.N.D.Ill., Feb. 7, 2000), noting the majority view:
For example, in In re Jones, 9 F.3d 878 (10th Cir. 1993), the Tenth Circuit defined the term "support" under § 523(a)(5) very broadly in the context of child custody proceedings. It found that "support" encompasses much more than the mere paying of bills on behalf of the child, and that the best interest of the child is an "inseparable element of the child's `support.'" Id. at 881. The court held that, in all custody actions, the court's ultimate goal is the welfare of the child. Id. It concluded that, "Generally, custody actions are directed towards determining which party can provide the best home for the child and are, therefore, held for the child's benefit and support. Therefore, in order that genuine support obligations are not improperly discharged, we hold that the term `support' encompasses the issue of custody absent unusual circumstances not present here." Id. at 881-82.
The Fifth Circuit reached the same conclusion in In re Dvorak, 986 F.2d 940, 941 (5th Cir. 1993), as have most other courts addressing the issue. See, e.g., Miller, 55 F.3d at 1490; Whipple v. Fulton (In re Fulton), 236 B.R. 626, 631 (Bankr.E.D.Tex. 1999); Sinton v. Blaemire (In re Blaemire), 229 B.R. 664, 667 (Bankr.D.Md. 1999); Peters v. Hennenhoeffer (In re Peters), 133 B.R. 291, 295 (S.D.N.Y. 1991), aff'd, 964 F.2d 166 (2d Cir. 1992).
Judge Doyle pointed out that the Eighth Circuit was the only Circuit Court of Appeals to reach a contrary result, tacitly approving of the bankruptcy court's independent inquiry into the state court action to determine if the child's health, welfare and best interests were actually at issue. Agreeing with the Tenth Circuit's criticism of this approach, Judge Doyle concluded:
In Jones, the Tenth Circuit expressly rejected the Eighth Circuit's directive that a bankruptcy court look at the purpose behind the custody action and examine whether that action was held to determine the best interests of the child. The Jones court held that, "In our view, in all custody actions, the court's ultimate goal is the welfare of the child. Further, to require the court to determine the purpose of the custody action could require extensive hearings and fact findings into the parties' subjective motivations which is more appropriate to the state court than a bankruptcy court." 9 F.3d at 881. The court concluded that, absent exceptional circumstances, fees awarded in custody actions are in the nature of support for purposes of § 523(a)(5).
This court agrees with the Tenth Circuit that the best interest of the child is necessarily the key issue in all custody actions, and that fees incurred in custody actions should be presumed to be in the nature of support unless exceptional circumstances exist. The Eighth Circuit's approach ignores that the fundamental issue in every child custody proceeding is the best interests of the child. Moreover, the Adams court's affirmance of a factual finding that a mother's extensive efforts to destroy a father's relationship with his child does not affect the health, welfare and best interests of the child defies common sense. This court will follow the Jones decision and the other consistent cases cited above, and concludes that attorneys' fees awarded in child custody litigation are in the nature of support for purposes of § 523(a)(5).
This Court agrees with that result. STEVEN'S construction of "support" as only encompassing financial matters affecting MORGAN is far too narrow. While STEVEN maintains that this Court must determine the facts "unique" to this case, he makes no representation of exceptional circumstances which would take this case outside the general rule. From a review of the documents filed in the state court proceeding, it is clear that the purpose of STEVEN'S petitions was to determine who could provide the better home for MORGAN.
Accordingly, there is no genuine issue of material fact and the attorney fees incurred by TARA in the custody hearing were in the nature of child support and are nondischargeable pursuant to § 523(a)(5).
This same rationale applies to guardian ad litem fees owed to CORSENTINO. As Judge Doyle noted in Ramirez, the great majority of cases hold that guardian ad litem fees incurred in child custody proceedings are in the nature of support and are nondischargeable. See, e.g., In re Chang, 163 F.3d 1138 (9th Cir. 1998); In re Miller, 55 F.3d 1487 (10th Cir. 1995); In re Ross, 247 B.R. 333 (Bankr.M.D.Fla. 2000). Moreover, although Illinois law is not controlling, the guidance it provides on this issue is quite strong. Section 506(b) of the Illinois Marriage and Dissolution of Marriage Act, governing the fees and costs incurred in the representation of a child in proceedings under the Act, provides in pertinent part:
Unless otherwise ordered by the court at the time fees and costs are approved, all fees and costs payable to an attorney, guardian ad litem, or child's representative under this Section are by implication deemed to be in the nature of support of the child and are within the exceptions to discharge in bankruptcy under 11 U.S.C.A. 523.
750 ILCS 5/506(b). Here, the state court's order contains no provision that CORSENTINO'S guardian ad litem fees do not constitute support and the absence of such a provision is tantamount to a finding by the court that such fees are in the nature of support.
As a final point, STEVEN denies that the guardian ad litem fees are a debt "owed" MORGAN, as required by § 523(a)(5). While STEVEN'S position is not entirely without support, it is contrary to the interpretation given to the statute by the majority of courts which have considered the issue and hold that attorney fees which are incurred by the spouse or child in connection with an award of maintenance or support are also nondischargeable. In In re Cornish, 529 F.2d 1363 (7th Cir. 1976), decided under § 17a(7) of the Bankruptcy Act of 1898, the court rejected the debtor's argument that a debt owed directly to his former wife's attorney did not constitute alimony and was dischargeable, determining that the award was in fact to his former wife, regardless of the court's direction as to the method of payment. Declining to elevate form over substance, courts have adhered to that rationale under § 523(a)(5) of the Bankruptcy Code, determining the nature of the debt to be more important than the identity of the payee. In re Kline, 65 F.3d 749 (8th Cir. 1995); In re Miller, 55 F.3d 1487 (10th Cir. 1995).
Noting that § 523(a)(5) has not been read literally by the courts, the Seventh Circuit has recognized that awards of attorney fees incurred in support proceedings are nondischargeable even though the attorney is neither a spouse, a former spouse nor a child of the debtor, premised on the theory that the expenses of collection form part of the underlying support obligation. In re Rios, 901 F.2d 71 (7th Cir. 1990). Like an award of attorney fees, guardian ad litem fees are for the support of the child and, the courts are nearly unanimous in considering such obligations to be a debt "to the child" under § 523(a)(5). In re Chang, 163 F.3d 1138 (9th Cir. 1998); Kline, supra; Miller, supra; In re Joffrion, 240 B.R. 630 (M.D.Ala. 1999); In re Brodsky, 239 B.R. 365 (Bankr.N.D.Ill. 1999).
Accordingly, it is clear from the case law interpreting § 523(a)(5) that the awards of both the attorney fees and the guardian ad litem fees are in the nature of support and meet the elements of that provision and are accordingly nondischargeable. Both TARA and CORSENTINO are entitled to summary judgment.
This Opinion constitutes this Court's findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052.
ORDER
For the reasons stated in an OPINION filed this day, IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by ANTHONY P. CORSENTINO in Adv. No. 01-8109 is hereby GRANTED and Judgment is entered in favor of ANTHONY P. CORSENTINO and against STEVEN B. ROSENBERGER and the debt is determined to be NONDISCHARGEABLE under § 523(a)(5). IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by TARA SANGUELDOLCE in Adv. No. 01-8110 is hereby GRANTED and Judgment is entered in favor of TARA SANGUELDOLCE and against STEVEN B. ROSENBERGER and the debt is determined to be NONDISCHARGEABLE under § 523(a)(5).