Mr. PRESIDING JUSTICE EGAN delivered the opinion of the court:
This is an appeal by Albert H. Beaver from an order enjoining him from attempting to enforce a decree for attorney's fees which had been ordered to be paid by James Morrey, the defendant in a divorce action brought by Beaver on behalf of Mary Anne Morrey.
The complaint was heard as a default matter, and a decree for divorce entered in favor of the plaintiff on October 2, 1969. The decree provided for permanent alimony in the sum of $20 per week plus support for three minor children in the sum of $60 per week. The defendant was ordered to pay Beaver a sum of $800 over an installment period of 15 months.
Between December 30, 1969, and June 13, 1973, Beaver served four wage deduction summons upon the employer of the defendant. On January 13, 1970, Morrey filed a petition in bankruptcy, which resulted in the discharge of his debts on March 19, 1970. In July, 1973, the defendant filed a petition to enjoin Beaver from further attempting to collect the fees and to quash the garnishment summons.
After a hearing on October 18, 1973, the court allowed the petition, holding that the judgment for fees was a debt which had been discharged in the bankruptcy proceedings.
Section 17 of the Bankruptcy Act (Tit. 11, U.S.C.A. § 35 (1953)) provides:
The question to be determined, then, is whether attorney's fees may be considered a liability for alimony. Although this is a question of first impression in the Illinois state courts, a case strikingly similar on its facts is Merriman v. Hawbaker (E.D. Ill. 1934), 5 F.Supp. 432, 434. In holding that an allowance of attorney's fees was a nondischargeable debt, the district court pointed out that the Divorce Act (Ill. Rev. Stat. 1933, ch. 40, par. 16) provides that upon failure to pay attorney's fees awarded, the spouse may be declared in contempt of court and punished accordingly, or that the fees may be collected by way of execution and added:
The Merriman case was cited and followed in Allison v. Allison (1962), 150 Colo. 377, 372 P.2d 946; Damon v. Damon (1st Cir.1960), 283 F.2d 571; and Turman v. Turman (Okla. 1968), 438 P.2d 488. See also In re Brennen (E.D.N.Y. 1941), 39 F.Supp. 1022.
The defendant cites three California cases: Yarus v. Yarus (1960), 178 Cal.App.2d 190, 3 Cal.Rptr. 50; Smalley v. Smalley (1959), 176 Cal.App.2d 374, 1 Cal.Rptr. 440; and Tropp v. Tropp (1933), 129 Cal.App. 62, 18 P.2d 385. In Yarus, the judgment provided that a sum was payable "solely by the way of property settlement, and not as payment of alimony or support and maintenance." In Smalley, the wife waived all right to support and alimony and the husband agreed to pay the wife $3000 to equalize her interest in community property which was payable in $50 per month installments. In Tropp, the decree contained two parts; the first was a $250 per month payment for support until remarriage; the second was payment of $50,000 in 10 equal annual installments to continue even in the event of the wife's remarriage. The court held that the second payment was a property settlement.
• 1 All three cases held that the portion of the decree sought to be enforced was a property settlement and not alimony and, as such, was dischargeable in bankruptcy. None of the cases involved attorney's fees and none, in our view, is in point. We, therefore, accept the reasoning of the Merriman case and judge that attorney's fees awarded in a divorce decree are in the nature of alimony and are not dischargeable in bankruptcy.
• 2 The defendant also contends that the cause of action for attorney's
But the doctrine does not preclude all inquiry as to the character or nature of the original cause of action, or an ascertainment of whether or not the claim is really one of a nature such as the court is authorized to enforce; and when the essential rights of the parties are influenced by the original claim the court will look behind the judgment for the purpose of ascertaining what the original claim was. ILP Judgments § 292, at 360 (1956).
The defendant's argument has been advanced and rejected in other jurisdictions: Hylek v. Hylek (7th Cir.1945), 148 F.2d 300, 302-303; Beneficial Loan Co. v. Noble (10th Cir.1942), 129 F.2d 425, 427; In re Avery (6th Cir.1940), 114 F.2d 768; Thomas v. Crosby (W.D. Mo. 1956), 146 F.Supp. 296, 299. All these cases have followed Pepper v. Litton, 308 U.S. 295, 305, 306, 84 L.Ed. 281, 288, 60 S.Ct. 238, 244, wherein the Supreme Court said:
See also Brown v. Hannagan (1911), 210 Mass. 246, 96 N.E. 714; Gibson v. Green's Adm'r (1893), 89 Va. 524, 165 S.E. 661; Gilchrist v. Cotton (1925), 83 Ind.App. 415, 148 N.E. 435.
• 3 We judge, therefore, that the fact that the claim for attorney's fees has been merged into a decree does not render it dischargeable in bankruptcy.
For these reasons, the judgment of the circuit court is reversed.
GOLDBERG and HALLETT, JJ., concur.