IN RE FERRADINO

OPINION AND DECISION

BERT GOLDWATER, Bankruptcy Judge.

This case is to determine the dischargeability of obligations of the debtor Domenick Anthony Ferradino1 to the plaintiff, his former wife, arising out of a document labeled "Property Settlement Agreement" which was approved but not merged in a 1977 divorce decree and provided in part as follows:

Defendant made mortgage payments of $326.40 per month to Mason-McDuffie, the holder of the obligation, through the year 1978. Plaintiff obtained judgment November 12, 1980, for $6,649 in delinquent mortgage payments, $3,595.19 for expenses incurred in establishing the baby sitting service2 agreed to in paragraph 21, $460.01 interest on the mortgage arrearages through September 1, 1980, $251.66 interest on the amounts due under paragraph 21, $2,000 in attorney's fees, and $68 costs of suit.

Plaintiff seeks to have her judgment against defendant and defendant's obligation under paragraph 14 of the agreement of September 30, 1977, declared nondischargeable in this bankruptcy under 11 U.S.C. 523(a)(5) which provides in part:

Defendant argues that because the divorce decree provided that the property settlement agreement, although approved and confirmed by the Nevada divorce court, did not merge or become a part of the decree of divorce, it is a contractual agreement settling the property rights of the parties and not an agreement to pay alimony or support.3

It is not necessary that the debt under 11 U.S.C. 523(a)(5) be alimony under a divorce decree. It is sufficient that it is a debt for support of a spouse in the nature of alimony, maintenance or support arising out of a separation agreement or property settlement agreement. See 3 Collier on Bankruptcy 523-10 (15th ed. 1980). In referring to the agreement, the divorce decree described the agreement as the "Property Settlement Agreement, executed by the parties hereto on September 30, 1977, settling all of the property rights of the parties and making provision for the partial support and maintenance of plaintiff." (Emphasis added.)

It is the underlying nature of the debt that is the key factor in determining dischargeability. In re Edward Wah Chin, 4 B.C.D. 924 (Cal.1978).

Various tests are used by the courts to determine the characterization of debts as property settlement payments or support payments. In re Albin, 591 F.2d 94 (9th Cir. 1979). Among the tests are (1) whether the obligation terminates on death or remarriage of the recipient spouse, (2) whether the obligation terminates on death of the donor spouse, (3) whether payments are in installments over a substantial period of time, (4) whether the obligation is enforceable by contempt, and (5) whether the payments were intended for the economic safety of the wife.

In this case the obligation to make mortgage payments survives until death or remarriage unless paid in full before that time. Nothing is said about the husband's death. The length of time the installment payments will be made depends on either the terms of the mortgage or the marital status of the plaintiff.4 An obligation is enforceable by contempt if the obligation is one arising out of the divorce decree, but as previously noted, under the Bankruptcy Code it is not necessary that the debt be alimony under a decree of divorce. Thus, when the debt is one arising out of a separation agreement or property settlement agreement, the availability of contempt is not a test to be considered by this Court. It is certainly clear that the payments were intended for the economic safety of the wife. Taken together with the provision for use of the mortgaged property for a child service in her home, the payments were necessary for the former wife's security and support. See generally Annot., 74 ALR 2d 758 (1960). For a recent case discussing the problems, see In re Maitlen, 3 B.L.R. 79,571, 65, 658 F.2d 466 (7th Cir. 1981).

In In re Patrick F. Henry, 5 B.R. 342, 2 CBC 2d 726 (B.C.M.D.Fla.1980), the court found that an agreement to make payments on a second mortgage was in the nature of support where there was an obligation to keep a roof over the heads of a wife and three children. Here, provision was made for the wife to have a baby sitting service in her home. The former husband was to undertake the expense of converting the home for such use, to pay the utilities for four months and to pay the encumbrance due on the mortgage until the wife's death or remarriage unless paid in full before either of those events. Such arrangement, after 33 years of marriage, would be consistent with "partial support".5

In Krick v. Krick, 76 Nev. 52, 348 P.2d 752 (1960), the Nevada court had before it the question of whether payments were alimony or property right payments. The husband contended that the payments were alimony payments which terminated with the wife's remarriage. The court denominated the payments as property and not alimony because, unlike the case at bar, the payments were to continue for the wife's life notwithstanding remarriage. Inasmuch as defendant's mortgage payments here cease upon the plaintiff's remarriage, there is every reason to believe he was to support her until she might have another husband to assume that obligation.

In In re Knabe, 8 B.R. 53, 3 CBC 634 (B.C.S.D.Ind.1980), the court held that attorney's fees awarded in the enforcement of a support obligation arising out of a separation agreement divorce decree or property settlement agreement are nondischargeable because the debtor's obligation to pay the fees is essentially based on the duty of support.

Let judgment be entered that plaintiff's judgment of November 12, 1980 in Action No. A 199124 in the District Court of Clark County, Nevada, is not discharged and defendant's obligation under paragraph 14 of the agreement of September 30, 1977 is not discharged.