SEVENTH CIRCUIT — Two bankruptcy courts have reached different results. In Matter of Miller, 17 B.R. 717 (BC W.D.Wis. 1982), the debtor moved to dismiss the complaint of his former wife who sought an order declaring debtor's support arrearages to be nondischargeable. Although the court denied debtor's motion, it did so only because no evidence was presented on the present circumstances of the parties.
The language of the statute on its face makes clear that the label of the state court order or agreement is irrelevant to the essentially federal law question of whether the debt is for support. Vande Zande v. Vande Zande, 22 B.R. 328, 330 (Bkrtcy.W.D.Wis. 1982); In Re Bailey, 20 B.R. 906, 909 (Bkrtcy.W.D.Wis. 1982). Courts look to the form of the award and consider, whether, according to the parties' circumstances, a need for support exists at the time the debtor filed his petition. In Re Bailey, 20 B.R. 906, 909 (Bkrtcy.W.D.Wis. 1982), Miller v. Miller, 17 B.R. 717, 720 (Bkrtcy.W.D.Wis. 1982) [citing with approval In Re Warner, 5 B.R. 434, 443 (Bkrtcy.D.Utah 1980)]. In the present case, the nature of the property division in the divorce documents is strong evidence that the arrangement was intended for the partial support of plaintiff.
Thus, an independent action for child support arrearages is an action upon a judgment, governed by this statute of limitations. Kroeger v. Kroeger, 120 Wis.2d 48, 52, 353 N.W.2d 60 (Ct.App. 1984); see also Miller v. Miller, 17 B.R. 717, 719 (Bankr.W.D.Wis. 1982). ¶ 19.
Id. at 442. The court in Warner reasoned that the requirement of present need was "necessary to enforce the general purpose of the bankruptcy laws in providing relief for the debtor."Id. Some bankruptcy courts have followed the holding of Warner. See, e.g., Miller v. Miller (In re Miller), 17 B.R. 717, 720 (Bankr.W.D.Wis. 1982); Tillett v. Tillett (In re Tillett), 22 B.R. 907, 910 (Bankr.W.D.Okl. 1982). The holding of Warner is also supported by Long v. Calhoun, 715 F.2d 1103 (6th Cir. 1983), in which the court considered the dischargeability of a debtor's obligation to assume joint debts incurred during his marriage.
" Relying on the early case of In re Miller, 17 B.R. 717 (Bankr.WD WI 1982), the debtor has asked the court to declare the entire arrearage to be a dischargeable debt. Miller in turn cited In re Warner, 6 BCD 788, 793, 5 B.R. 434, 443 (Bankr.Utah 1980), wherein Judge Mabey said: "[E]ven if the debt was originally imposed on the basis of the need of the spouse or children, the debt cannot be held nondischargeable unless at the time of filing there exists a present need by the spouse or children that the debt be paid."
715 F.2d at 1109. The so-called "present needs test" urged by Debtor has been adopted by some courts, Miller v. Miller ( In re Miller), 17 B.R. 717 (Bankr.W.D.Wis. 1982); Tillett v. Tillett ( In re Tillett), 22 B.R. 907 (Bankr.W.D.Oklahoma 1982); Warner v. Warner ( In re Warner), 5 B.R. 434 (Bankr.D.Utah 1980), but has been expressly rejected by others. See Harrell v. Sharp ( In re Harrell), 754 F.2d 902 (11th Cir. 1985).
See, e.g., In Re Warner, 5 B.R. 434 (Bkrtcy.D.Utah 1980); In Re Miller, 17 B.R. 717 (Bkrtcy.W.D.Wis. 1982). The Gedeon court, along with Yarns, supra, seems to sweep too broadly in characterizing all family obligations as "support."
Utah 1980), which balances the need for continuing support payments against the need to secure a fresh start for the debtor. Accord, Miller v. Miller, 17 B.R. 717, 720 (Bkrtcy.W.D.Wis. 1982). But see In re Jenson, 17 B.R. 537, 540 (Bkrtcy.W.D.Mo. 1982).
This approach balances the need for continued support payments, against the need to secure a fresh start for the debtor. This view was adopted and cited with approval by Judge Martin in Miller v. Miller, 17 B.R. 717, 720 (Bkrtcy.W.D.Wis. 1982). The view has been disputed, however, by Judge Stewart when he noted that "[U]nder the governing principles, the bankruptcy court must make its determination based upon the intended function of the award at the time of entry of the state court dissolution decree."
1 Wis.2d at 52, 82 N.W.2d at 894.See also Matter of Miller, 17 B.R. 717, 719 (Bankr. W.D. Wis. 1982), in which the bankruptcy court held, "Since an action to collect [child support] arrearages is an action upon a judgment, Wis. Stats. sec. 893.40, the twenty-year limitation, applies." Megan's father points out that under sec. 893.40, Stats., an action on a judgment must be commenced within twenty years after the judgment is "entered."