Opinion
Case No. 00-32013-T, Adv. Proc. No. 00-3099-T,
April 9, 2002
Carl J. Witmeyer, II, Esquire, Chalkley Witmeyer, Ashland, Virginia, Counsel for Plaintiff.
Tim Louk, Esquire, Affiliated Attorneys, Richmond, Virginia, Counsel for Debtor/Defendant.
Bruce H. Matson, Esquire, LeClair Ryan, Richmond, Virginia, Chapter 7 Trustee.
MEMORANDUM OPINION AND ORDER
Trial was held March 27, 2002, on plaintiff's complaint for determination of dischargeability of debt. At conclusion of trial, the court ruled from the bench that the debt was non-dischargeable. For the reasons stated herein and at trial, the debt owed William E. Nelson will be excepted from discharge pursuant to 11 U.S.C. § 523(a)(5).
First trial on this matter was held on July 12, 2001; however, because debtor's counsel was disbarred and debtor did not appear at trial, the court decided to rehear the matter.
Section 523(a)(5) states that debts due "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 . . ." are non-dischargeable. 11 U.S.C. § 523(a)(5) (2002).
Facts and Procedural History
On November 30, 1998, the Powhatan Circuit Court ordered debtor to pay plaintiff the sum of $5,000.00 representing attorney fees on behalf of plaintiff, debtor's ex-husband. Plaintiff incurred the attorney fees pursuing back child support owed by debtor and resolving custodial issues. On November 24, 1999, after debtor failed to pay, the Powhatan Circuit Court entered an order granting judgment in favor of plaintiff for $5,000.00.
The order also ordered debtor to pay $250.00 to Dr. Butnik and the fees due to guardian ad litem, Edward A. Robbins.
The order required that debtor pay $50.00 per month towards the judgment at a rate of nine percent interest accruing from October 22, 1998.
Debtor filed her chapter 7 bankruptcy petition on April 3, 2000, and received her discharge on July 22, 2000. On July 3, 2000, plaintiff filed this adversary proceeding requesting that the Powhatan Circuit Court's judgment order for his attorney fees be deemed non-dishargeable pursuant to 11 U.S.C. § 523(a)(5) and requesting attorney fees for this adversary proceeding. On August 8, 2000, debtor filed an answer and memorandum in support asserting that the attorney fees should be dischargeable pursuant to 11 U.S.C. § 523(a)(15) as the fees were "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 . . ." 11 U.S.C. § 523(a)(15) (2002). Plaintiff filed a reply to debtor's answer on October 5, 2000.
Trial was initially scheduled for July 12, 2001. Neither debtor nor counsel for debtor appeared, and the court directed counsel for plaintiff to submit proposed findings of fact and conclusions of law from which the court might make a ruling.
On November 9, 2001, counsel for plaintiff submitted a proposed order, proposed findings of fact and conclusions, and requested reimbursement for attorney fees and costs in the amount of $2,552.50.
This amount represents eleven hours at $200.00 per hour for a total of $2,200.00 and costs of $352.50.
By letter dated November 21, 2001, the court advised plaintiff's counsel that it had received his submission and requested an affidavit stating the facts relied upon, including exhibits, to support plaintiff's position. The court advised counsel that it would reassess the record to determine if a further hearing would be necessary. The court sent a copy of this letter to debtor because of concern that debtor may have been unaware of the July 12, 2001, trial date as she was no longer represented by counsel. Moreover, court records did not reflect that notices of the previous trial date had been sent directly to debtor. On November 30, 2001, the court received a letter from debtor indicating her intent to contest this adversary proceeding and to seek other counsel.
Counsel for debtor, James DeWees, lost his license to practice law during the pendency of this case. David Tepper, an associate at his firm, who filed debtor's answer to this complaint on August 8, 2000, was no longer employed by the DeWees law firm as of the hearing date.
In an abundance of caution, the court rescheduled a new trial for March 27, 2002. On this date debtor appeared with counsel. Both sides were given the opportunity to present argument and evidence, after which the court ruled in favor of plaintiff that the judgment award was excepted from discharge under 11 U.S.C. § 523(a)(5).
Conclusions of Law
Most circuits have determined that the award of attorney fees in child custody and support proceedings are non-dischargeable under 11 U.S.C. § 523(a)(5). See, e.g., Liebowitz v. County of Orange (In re Leibowitz), 217 F.3d 799 (9th Cir. 2000), Dvorak v. Carlson (In re Dvorak), 986 F.2d 940 (5th Cir. 1993), Jones v. Jones (In re Jones), 9 F.3d 878 (10th Cir. 1993), Brennan, Fabriani Novenstern v. Akamine (In re Akamine), 217 B.R. 104 (S.D.N.Y. 1998), Sinton v. Blaemire (In re Blaemire), 229 B.R. 665 (Bankr.D.Mass. 1999), Shevick v. Brodsky (In re Brodsky), 239 B.R. 365 (Bankr.N.D.Ill. 1999), Ceconi v. Uriarte (In re Uriarte), 215 B.R. 669 (Bankr.D.N.J. 1997), Madden v. Staggs (In re Staggs), 203 B.R. 712 (Bankr.W.D.Mo. 1996).
In Hirschler, Fleischer, Weinberg, Cox Allen v. El-Amin (In re El-Amin), 145 B.R. 836, 839 (Bankr.E.D.Va. 1991), this court determined that a divorce court award of attorney fees and costs was sufficiently related to the order of spousal support to justify a finding that the award was in the nature of support and non-dischargeable pursuant to 11 U.S.C. § 523(a)(5)). Section 523(a)(5) applies to both spousal and child support, and therefore, this opinion can naturally be extended to encompass attorney fee judgments in child support cases.
Because the attorney fees in the instant case were incurred during a court hearing that was for the child's benefit and support, and the state court ordered the fees be paid by debtor, the attorney fees were part of the support order and therefore constitute non-dischargeable debt under § 523(a)(5).
Accordingly,
IT IS ORDERED that the judgment order of the Powhatan Circuit Court granting attorney fees in the amount of $5,000.00, accruing interest at a rate of nine percent interest from the date of October 22, 1998, is EXCEPTED from Shirley A. Snidow's discharge of July 25, 2001, pursuant to 11 U.S.C. § 523(a)(5).
IT IS FURTHER ORDERED that plaintiff's request for attorney fees incurred in pursuing this adversary proceeding is DENIED.