MARK B. McFEELEY, Bankruptcy Judge.
This matter is before the Court upon the complaint of Esperanza G. Dirks, the ex-wife of the defendant debtor, seeking to have the Court declare that certain debts ordered paid by the debtor in a prior divorce proceeding are nondischargeable. Counsel for plaintiff argues that the final decree of dissolution of marriage entered by the state district court is ambiguous, and therefore that this Court has the right and duty to look behind the terms of said final decree to determine that payments on the debts set forth were in fact ordered to be paid in lieu of alimony and that having once so found, the Court should find that the debts to Rio Grande Valley Bank, Cessna Aircraft, First National Bank, Harold Dirks, Frank Skarritt, MasterCharge and VISA should be declared nondischargeable. Defendant argues that the decree is not ambiguous, and even if it were, that the Court should find said debts to be dischargeable in the bankruptcy proceeding.
Three determinations must be made in this matter. The first is whether this Court has jurisdiction to interpret the terms of a divorce decree. The second is what standard will be used to determine if a debt ordered paid by a state court is in fact alimony. The third is, once having made that determination, if this Court should find such debts to be nondischargeable.
It is obvious that with the continuing volume of filings both in this and other districts, this question will arise again and again. Indeed, from a review of the cases reported, it seems to have frequently arisen in the past.
Mr. and Mrs. Dirks were divorced by final decree entered in the state district court on February 7, 1980. That decree provides, in pertinent part, as follows:
Although the Bankruptcy Act of 1978 greatly expanded the jurisdiction of this Court, there seems to be no argument that jurisdiction over such matters as marriage, divorce, child custody, alimony and child support, remain, as it has always been, in state courts. The United States Supreme Court has held that there is no federal domestic relations law. De La Roma v. De La Roma, 201 U.S. 303, 307, 26 S.Ct. 485,
Certainly this Court has power to look at the language and intent of a state court judgment regarding alimony, child support, or property settlements to insure that the power of this Court is not abused by a mischaracterization. Legislative history makes it clear that despite the fact that federal courts do not have jurisdiction to determine domestic relations matters, Congress did intend that the bankruptcy courts should be able to determine whether characterizations of alimony or support made by state courts meet the meaning of such terms as they arise in the bankruptcy context. H.R.Rep.No.95-595, 95th Cong., 1st Sess., p. 364 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. This power is particularly important in this district where a great many, if not the majority, of final decrees are prepared by counsel for one of the parties and submitted to the court for signature. It is true that in those cases where a final decree of dissolution of marriage is ambiguous as to the intent of the state court in granting or not granting alimony or child support, this Court has the inherent power to look at the intent of such decree to determine what was in fact meant. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); In re Rank, 12 B.R. 418, 8 B.C.D. 76 (Bkrtcy.D. Kansas 1981); In re Pelikant, 5 B.R. 404, 6 B.C.D. 58 (Bkrtcy.N.D.Illinois 1980); In re Daiker, 5 B.R. 348 (Bkrtcy.D.Minnesota 1980); In re Bell, 5 B.R. 653, 6 B.C.D. 833 (Bkrtcy.W.D.Oklahoma 1980); In re Allen, 4 B.R. 617, 6 B.C.D. 576 (Bkrtcy.E.D.Tennessee 1980); In re Warner, supra; 3 Collier on Bankruptcy, Section 523.15(5) (15th Ed. 1979).
This Court recently discussed the distinction between alimony and a property settlement in In re Djang:
In re Djang, Bankruptcy Nos. B75-1549 and B75-1550 (B.Ct.N.M.1980).
Once the court has determined that payment of a debt to a third party was in fact intended for the maintenance and support of an ex-spouse or children of the marriage, the question remains as to whether or not the court can or should find such debt nondischargeable. 11 U.S.C. Section 523(a)(5)(A) indicates that such a debt, assigned to a thus payable to another entity, is dischargeable under the provisions of the Bankruptcy Code. It would seem, considering the provisions of the Code and the intent expressed therein, that this is perfectly appropriate. In re Spong, 3 B.R. 619, 8 B.C.D. 150 (Bkrtcy.2d Cir. 1981) (Dissenting Opinion); In re Crawford, 8 B.R. 552 (Bkrtcy.D.Kansas 1981); In re Allen, supra. A major policy concern underlying the Bankruptcy Code is giving the downtrodden debtor a fresh start. By disallowing discharge of debts presented to the bankruptcy courts by creditors who argue that the debt is "in lieu of alimony," the policy of fresh start is totally defeated since these creditors are the very parties against whom the debtor was given protection by the fresh start policy. This clearly was not the intent of Congress in excepting from discharge debts characterized as alimony, maintenance or support. The exceptions to discharge, because they cut against fresh start, must necessarily be interpreted narrowly. In re Spong (Dissenting Opinion), supra; In re Daiker, supra. The purpose of the 523(a)(5)(A) exception is to protect exspouses and children. Courts which allow creditors to take advantage of this exception under the guise of alimony contravene the fresh start policy as well as widen the supposedly narrow exceptions to dischargeability.
Deciding this point in an opposite manner would seem to produce three results. The first is that creditors ordered to be paid in lieu of alimony pursuant to the terms of a divorce decree will have the right to appear in a bankruptcy proceeding alleging that pursuant to the terms of such a decree they are third-party beneficiaries and the debt to them should be declared nondischargeable. Second, in finding such debts nondischargeable, violence is done to well-settled domestic relations law. Third, the language of the statute is erroneously construed, and one part given more weight than another.
As to the second result, the incongruity in finding such debts nondischargeable
In looking behind the terms of a divorce decree, it is obvious that by ordering payment to a third party in lieu of alimony, state courts intend, in fact, an award of alimony to the spouse measured by the amount of such debt or the monthly payments on such debt. The court, in effect, is ordering an amount of alimony paid to the ex-spouse, but authorizing the payment of same to be made to a creditor. If it is true that obligations in the nature of alimony terminate upon the death or remarriage of an ex-spouse, then it logically follows that finding a debt to a third-party creditor nondischargeable does not, in fact, comport with the intention to award support since, once that finding is made, the third-party creditor can enforce the collection of such debt regardless of the future circumstances of the ex-spouse.
Where does a finding of dischargeability leave an ex-spouse who has not remarried and is still living? The answer appears relatively simple. The ex-spouse would have the right to return to the state court or file the appropriate proceedings in this Court (1) to have the court determine if in fact the order of payment to a third party was intended to be alimony or support, and (2) if so, to have the court determine that since the state court judgment ordered the payment of alimony measured by the payment to the third-party creditor, that obligation, being no longer owed to the creditor, should be ordered paid directly to the party entitled to alimony.
This seems to accomplish the intent of Section 523(a)(5) in that it discharges debt owed to third parties, even if the payment of such debt was in lieu of alimony or support. On the other hand, it allows the court to order the payment of alimony to a spouse, which the Code makes clearly non-dischargeable, in an amount which, if appropriately found by the court, is measured by the amount of payment to a third-party creditor.
This result is at odds with decisions such as In re Bell, supra; In re Pelikant, supra; In re Wells, 8 B.R. 189 (Bkrtcy.N.D.Illinois 1981); In re Knabe, 8 B.R. 53 (Bkrtcy.S.D. Indiana 1981); and In re Cineberry, 9 B.R. 700 (W.D.Missouri 1981). When presented with facts similar to those in the case at bar, these courts found that payments made by debtors to third parties in lieu of alimony were nondischargeable since they represent Section 523(a) payments of alimony, maintenance or support. Section 523(a)(5)(A) says, however, that debts which are found to be alimony, maintenance and support are dischargeable if assigned to another entity voluntarily, by operation of law, or otherwise. The wording of the statute clearly indicates that the intent behind the nonassignment clause is that the section is to apply to more than just technical assignments. Congress certainly did not insert the words "or otherwise" in Section 523(a)(5)(A) as mere surplusage. These words are intended to open or broaden the scope of the meaning of assignment so that the word "assignment" cannot be interpreted narrowly so as to only encompass technical assignments. Consequently, cases holding that the Section 523(a)(5)(A) does not
It also seems evident that in order to answer questions relating to statutory intent, one necessarily must read a statute as a whole unit, giving each word or each section equal weight unless the statute directs otherwise. Reiter v. Sonotone Corp., 442 U.S. 330, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979), on remand 602 F.2d 179, on remand 486 F.Supp. 115; Hughes Air Corp. v. Public Utilities Commission of St. of Cal., 644 F.2d 1334 (C.A.Cal.1981). In reading Section 523(a)(5) as a whole unit, each part must be accorded no weight greater than any other part since the statute does not direct otherwise. Congress would not have included subsection (A) in such broad language if it merely intended to have it exist at the mercy of subsection (B). Courts which find nondischargeability of "in lieu of alimony" debts on the grounds that payments to a third party are actually alimony in effect read subsection (B) to the total exclusion of (A). In re Richards, 14 B.R. 276, 8 B.C.D. 111 (N.D.Illinois 1981); In the Matter of Gilbert, 10 B.R. 462 (Bkrtcy.N.D. Indiana 1981). If this were the correct reading of Section 523(a)(5)(A), then these courts have rewritten the statute and have found that it has only one operative subsection: (a)(5)(B). This certainly is not the proper reading of Section 523(a)(5).
Applying this reasoning to the facts of the case at hand, it is apparent that the debts to Rio Grande Valley Bank, Cessna Aircraft, First National Bank, Harold Dirks, Frank Skarritt, MasterCharge and VISA will be declared discharged. This ruling should not preclude the plaintiff from filing an appropriate proceeding in state court, based upon a change in circumstances, to have that court determine if it intended that payment of any or all of the above-listed debts were to be payments in lieu of alimony. Although this Court could normally make such a determination, it was not asked to do so, nor was any evidence presented which would allow it to do so. An appropriate order will enter.