Opinion
Case No. 8:16-bk-01211-RCT Adversary No. 8:16-ap-00343-RCT
01-25-2017
In re Robert D. Dunning, Debtor. Millicent B. Athanason, Plaintiff, v. Robert D. Dunning, Defendant.
Chapter 13 ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION TO DISMISS
This adversary proceeding was considered on Plaintiff's Motion for Summary Judgment (Doc. 12) and Defendant's Response to Plaintiff's Motion for Summary Judgement and Motion to Dismiss Adversary Proceeding (Doc. 23).
The facts are not in dispute. Before the bankruptcy, attorney Millicent B. Athanason represented Robert Dunning in state court to modify his alimony and child support obligations. By all accounts, Ms. Athanason did an excellent job. Mr. Dunning owed $6,235.79 to Ms. Athanason when he filed his chapter 13 bankruptcy case. Ms. Athanason now seeks a determination that her claim for attorneys' fees and costs is non-dischargeable.
In chapter 13, dischargeability issues are governed by section 1328(a)(2). Section 1328(a)(2) identifies those debts that are not discharged upon completion of a chapter 13 payment plan. Among the non-dischargeable debts listed in section 1328(a)(2) are debts of the kind described in section 523(a)(5). Section 523(a)(5), in turn, excludes "domestic support obligations" from discharge. Significantly, section 1328(a)(2) does not incorporate debts covered by section 523(a)(15). Accordingly, Ms. Athanason's claim must be a "domestic support obligation" to be non-dischargeable.
All section references are to the United States Bankruptcy Code, title 11, unless otherwise indicated.
The Complaint seeks relief under section 523(a)(15), but the summary judgment motion refers to section 523(a)(5)—the proper section.
The definition of a "domestic support obligation" is in section 101(14A). Three of the requirements in section 101(14A) are key to Ms. Athanason's Motion for Summary Judgment. First, the debt must be "owed to or recoverable by - a spouse, former spouse, or child of the debtor or such child's parent, legal guardian, or responsible relative." § 101(14A)(A)(i). Second, the debt must be "in the nature of alimony, maintenance, or support . . . of such spouse, former spouse, or child of the debtor . . . ." § 101(14A)(B). Third, the debt must be established, or subject to establishment, by "a separation agreement, divorce decree, property settlement agreement" or "an order of a court of record." § 101(14A)(C).
Those provisions of section 101(14A) dealing with government involvement in the recovery of domestic support obligations do not apply to Ms. Athanason's claim. --------
Mr. Dunning's debt to Ms. Athanason for attorneys' fees to reduce his child support obligations is not a "domestic support obligation." It is not owed to or payable by a former spouse or a child. It is not of the nature of alimony or support for a former spouse or child. And it is not an obligation established by a settlement agreement, divorce decree or court order. It is simply a contractual obligation between Mr. Dunning and Ms. Athanason, and as such it is subject to discharge upon completion of Mr. Dunning's chapter 13 plan.
Accordingly, it is
ORDERED:
1. Plaintiff's Motion for Summary Judgment is DENIED.
2. Defendant's Motion to Dismiss is GRANTED.
3. This adversary proceeding is DISMISSED and may be closed.
4. The Debtor's request for attorneys' fees is DENIED because no legal basis was presented to justify recovery from the Plaintiff. However, this denial is without prejudice to Defendant's counsel seeking additional compensation in the Debtor's chapter 13 case.
ORDERED.
Dated: January 25, 2017
/s/_________
Roberta A. Colton
United States Bankruptcy Judge The clerk is directed to serve a copy of this order on interested parties who are non-CM/ECF users.