Opinion
No. 78-1424
July 23, 1979
Discharge of Debts — Alimony — Child Support — Constitutionality — Gender-Based Discrimination
A debt for spousal support is exempt from discharge under Section 17a(7) whether the debtor is a man or a woman. It was found appropriate to extend the statute's coverage to husbands rather than to deny it to wives. Thus, there could be no question of gender discrimination. See Sec. 17a(7) at ¶ 2150 and Sec. 523(a)(5) at ¶ 9231.
[Digest of Opinion]
A state court had ordered the bankrupt to pay $150 per week "for the support of the wife [from whom he was separated] . . . and the minor child. . ." The parties agreed that these payments were to represent the bankrupt's sole support obligation and were to be unallocated so that the bankrupt could treat them as alimony for federal tax purposes. It was also agreed and ordered by the court that the obligation should be retroactive to the date of the filing of the support petition. The arrearage was to be liquidated at the rate of $50 per week. When the bankrupt filed his voluntary petition, he listed his wife as a creditor and sought discharge of the debt arising from the arrearage. The bankrupt argued that Section 17a(7) was unconstitutional as violative of the Due Process Clause of the Fifth Amendment because it created an invalid gender-based discrimination. The bankrupt supported this proposition by relying solely upon In re Wasserman, CCH Dec. ¶ 66,471. In that case the court found that Section 17a(7) was unconstitutional and void and discharged the bankrupt of his alimony indebtedness.
This court first noted a factual difference between Wasserman, supra, and the case at bar. In Wasserman, the discharge affected only the bankrupt's alimony or spousal support obligation. In the instant case, if the bankrupt is granted the discharge he will be relieved not only of a spousal support obligation but also of his debt for child support for the period of the arrearage since the support payments are unallocated. This court was reluctant to rule the debt dischargeable when such a ruling would produce a result "which is not only highly undesirable, but also in direct conflict with the unchallenged provision of the Act."
Further, the court found that neither a husband-bankrupt nor a wife-bankrupt may be discharged from alimony obligations and that the term "alimony" itself is not gender-discriminatory. However, the court did add that the phrase making "maintenance or support of wife" nondischargeable involves a gender-based classification which may be unconstitutional. The court found it appropriate "to extend the statute's coverage to husbands rather than to deny it to wives by the Draconian remedy adopted in Wasserman" since in enacting Section 523(a)(5) of the Bankruptcy Act of 1978 "Congress has clearly manifested the intention of extending the nondischargeability provision to both spouses." Therefore, the bankrupt's spousal support obligation is nondischargeable under Section 17a(7).