IN RE HYINGBankruptcy No. 11-23557-jes. Adversary No. 11-2494.
477 B.R. 731 (2012)
In re Martin B. HYING, Debtor.
Karen Zimmermann, Plaintiff,
Martin B. Hying, Defendant.
Karen Zimmermann, Plaintiff,
Martin B. Hying, Defendant.
United States Bankruptcy Court, E.D. Wisconsin.
January 25, 2012.
Nathan I. Zimmermann, Zimmermann Law Office, S.C., Bayside, WI, for Plaintiff.
Martin B. Hying, Racine, WI, pro se.
JAMES E. SHAPIRO, Bankruptcy Judge.
The issue presented is whether attorney's fees ordered by two Wisconsin state circuit judges and one Wisconsin assistant family court commissioner to be paid by debtor-Martin B. Hying ("defendant" or "debtor") to Atty Karen Zimmermann ("plaintiff") arising out of post-divorce contempt proceedings are nondischargeable. The parties to this adversary proceeding have stipulated that this is the sole issue. They also have stipulated to the essential underlying facts. This issue has been presented to this court on the plaintiff's motion for summary judgment and has been fully briefed.
This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I).
The defendant and Kimberly Niemi, formerly Kimberly Hying, were divorced on November 28, 2007. They have one minor child, Jillian. Following their divorce, the defendant and Kimberly became embroiled in a series of hotly contested contempt proceedings involving the care, custody, and welfare of Jillian. Kimberly was represented in all of these proceedings by the plaintiff. As a result of various proceedings in different courts, the following orders were issued imposing sanctions upon the defendant requiring him to pay Kimberly's attorney fees directly to the plaintiff:
These sanctions total $8,846.75.
On March 17, 2011, the defendant filed a petition in bankruptcy under chapter 7. He listed the attorney's fees ordered to be paid by him as a debt. On July 11, 2011, this adversary proceeding was filed, seeking nondischarge ability of such debt.
The plaintiff is represented in this adversary proceeding by Atty. Nathan I. Zimmermann. The defendant appears pro se.
Summary Judgment Standard
Rule 7056 of the Federal Rules of Bankruptcy Procedure incorporates Rule 56 of the Federal Rules of Civil Procedure and governs summary judgment in adversary proceedings. Summary judgment is
This matter is ripe for a ruling on plaintiffs motion for summary judgment.
Plaintiff argues that the attorney's fees ordered paid to her are nondischargeable as a domestic support obligation under 11 U.S.C. § 523(a)(5) and are "in the nature of support" within the meaning of "domestic support obligation" as defined under 11 U.S.C. § 101(14A).
Plaintiff further argues, in the alternative, that, even if the attorney's fees owed to her are not a domestic support obligation, they are nondischargeable under 11 U.S.C. § 523(a)(15) as a debt other than a domestic support obligation arising in connection with a divorce decree or other order of a court of record.
In response, the defendant contends that his obligation to pay the legal fees to the plaintiff is not a domestic support obligation under § 523(a)(5). He states that, to qualify as a domestic support obligation under 11 U.S.C. § 101(14A), the debt must be "owed to a spouse, former spouse, or child of a debtor," which category does not include the plaintiff.
The defendant has raised numerous other arguments, which includes the following:
The key issue in this case centers upon 11 U.S.C. §§ 523(a)(5) and 523(a)(15). These sections state, in relevant part, the following:
The term "domestic support obligation" as contained in § 523(a)(5) is defined under 11 U.S.C. § 101(14A) as follows:
Sec. 523(a)(5) excepts from discharge debts for a "domestic support obligation" as defined by § 101(14A) and requires the plaintiff to establish the following elements:
The fourth element — not assigned to a governmental unit — is not in dispute. The other three elements, however, are in dispute. Each shall be separately analyzed.
The record of this case reveals that all of the court orders which were issued in the state court contempt proceedings initiated by Kimberly involved her allegations that the defendant failed to comply with court orders regarding Jillian's general welfare. The attorney's fees which were ordered to
The debtor then claims based on Rios that the attorney's fees ordered to be paid to the plaintiff are dischargeable because "the circuit court order for payment is not incorporated as part of any judgment of alimony or child support by the circuit court".
The debtor's reliance upon Rios is misplaced. Rios was decided before the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") which the term "domestic support obligation" was defined. Collier on Bankruptcy ¶ 523.11 (16th ed.) states:
This court is persuaded that the debtor's obligation to pay the plaintiffs legal fees for services rendered in obtaining rulings in connection with Jillian's welfare is a nondischargeable debt under § 523(a)(5).
BAPCPA has made substantial changes to § 523(a)(15). The law before BAPCPA was enacted required a court to determine if the debtor had the ability to repay the obligation and whether the discharge of the debt would yield a benefit to the debtor outweighing the detriment to the former spouse or child of the debtor. That no longer is the law. Under BAPCPA, all debts owed to the spouse, former spouse, or child are nondischargeable regardless of whether the debtor had ability to pay the debt and regardless of whether the discharge to a debtor outweighs the detriment to the former spouse or child. If the debts were incurred in the course of a divorce proceeding, they are nondischargeable. See In re Tarone,
The facts in Tarone are similar to the facts in the case at bar — namely, attorney's fee awards were ordered to be paid to the debtor's ex-wife's attorney in marital dissolution proceedings. These fees were found, in Tarone, to be nondischargeable.
This court concludes that, even if the legal fees ordered to be paid to the plaintiff did not fit the definition of a domestic support obligation for purposes of § 523(a)(5), they are nevertheless nondischargeable under § 523(a)(15).
Defendant's Remaining Arguments
The defendant's remaining arguments are without merit as to whether the attorney's fees due to the plaintiff are nondischargeable.
The defendant's argument that the state court contempt orders were invalid is
In In re Tadisch,
The defendant also argues that, if this debt is declared nondischargeable, it would deprive him of his right to a fresh start and would violate the principle that exceptions to discharge should be strictly construed against creditors and in favor of debtors. In In re Crosswhite,
Finally, the debtor suggests that plaintiff may be "double dipping." Nothing in the record of this case supports that allegation, which is only speculative and is rejected as baseless.
The court concludes that the plaintiff is entitled to summary judgment and the debtor's obligation to pay the attorney's fees totaling $8,846.75 ordered to be paid directly to the plaintiff constitutes a nondischargeable debt under § 523(a)(5) as a domestic support obligation. Alternatively, even if this obligation was not a domestic support obligation, it would be nondischargeable under § 523(a)(15).
The foregoing constitutes this court's findings of fact and conclusions of law pursuant to Fed. R. Bankr.P. 7052.
A separate order shall be entered.
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