KEITH M. LUNDIN, Bankruptcy Judge.
The debtor seeks a determination of the dischargeability of monthly payments to the debtor's ex-spouse required by a 1976 divorce decree as modified March 4, 1982. This court concludes that the payments required by the decree as modified as nondischargeable. In reaching this decision, the court declines to consider the changed financial circumstances of the ex-spouse or debtor under 11 U.S.C.A. § 523(a)(5) (West 1979).
The following shall constitute findings of fact and conclusions of law pursuant to Rule 752 of the Federal Rules of Bankruptcy Procedure.
The Vickers were divorced July 21, 1976 by order of the Circuit Court for Warren County, Tennessee. The state court record reveals that the divorce court heard testimony to determine fault and to assess the relative financial positions of the parties. At the time of the divorce, Mrs. Vickers was a housewife with a very limited part-time income as an Avon representative. She had been, and continues to be, periodically hospitalized for cancer-related operations and is apparently incapable of working full time. At the time of the divorce, Mr. Vickers was a truck driver with moderate income unspecified in the record. Although Mrs. Vickers' financial position is relatively unchanged, Mr. Vickers is now less profitably employed as an apartment maintenance person.
Mrs. Vickers was awarded the divorce on the ground of cruel and inhuman treatment and the court provided in its decree:
Vickers v. Vickers, Cause No. 1792, slip op. at 3 (Cir. Ct. of Warren Co., Tenn. July 21, 1976). The court required Mr. Vickers to
Mr. Vickers has demonstrated repeated unwillingness or inability to make the payments required by the original decree. No less than five contempt petitions were filed against him in state court to enforce these obligations.
Section 523(a)(5) of the Bankruptcy Code excepts from allowable discharge "any debt to a . . . former spouse . . . for alimony to, maintenance for, or support of . . . spouse or child, in connection with the separation agreement, divorce decree, or property settlement agreement. . . ." 11 U.S.C.A. § 523(a)(5) (West 1979). The bankruptcy court may be influenced but is not bound by the state court's characterization of the award. The legislative history regarding Section 523(a)(5) indicates that Congress intended a bankruptcy court to scrutinize closely the divorce decree and develop appropriate federal standards. H.R.Rep. No. 595, 95th Cong. 1st Sess. 364 (1977), reprinted in U.S.Code Cong. & Ad. News 1978 at 5787, 6319. See Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); In re Netherton, 2 B.R. 50 (Bkrtcy.M.D.Tenn.1979). A bankruptcy court has a duty to examine the divorce decree and make an independent determination whether the liabilities labeled in the divorce decree as alimony, support, or maintenance are indeed such and are therefore nondischargeable, or whether the payments are in the nature of a property settlement. Benz v. Nelson, 16 B.R. 658, 660 (Bkrtcy.M. D.Tenn.1981); Monday v. Allen, 4 B.R. 617, 619 (Bkrtcy.E.D.Tenn.1980); 3 King, Collier on Bankruptcy ¶ 523.15(1) (15th ed. 1980).
The courts have considered a variety of factors in formulating their characterization of the obligation. Judge Jennings summarized the factors relevant to a Section 523(a)(5) inquiry in Benz v. Nelson, supra, 16 B.R. at 660-661:
See also Matter of Albin, 591 F.2d 94 (9th Cir.1979).
After consideration of all the evidence the unmistakeable conclusion is that the required payments are in the nature of alimony, support, and maintenance and are nondischargeable. The court specifically finds that at least seven factors enumerated in Benz are present: (1) payments are periodic; (2) payments are made directly to the wife; (3) the trial court characterized the payments as alimony; (4) the payments are for a non-specific duration and have no provision for termination; (5) the trial court's order deals specifically with the division of the parties' property in other sections; (6) the obligations are enforceable by contempt; and (7) the relative health and economic position of the parties was considered by the trial court in calculating the award. The debt attributable to the original decree is thus determined to be nondischargeable.
Subsequent state court alterations in divorce decrees or adjustments in payment schedules may reveal a change in the nature of the obligation intended to be imposed. A bankruptcy court must analyze each subsequent modification to determine whether the obligation remains one in the nature of alimony, support or maintenance, measuring each modification against the factors delineated in Benz. Analyzing the state court order of modification of March 4, 1982 under those criteria, the court finds that the order makes no substantive change in the nature of the payments. The payments remain periodic. The payments continue to be made directly to the wife. The court continues to refer to the payments as "alimony." The payments continue for a non-specific duration and the relative financial circumstances were again considered at the state court hearing.
The debtor contends that despite the characterization of these debts as alimony and support, this court should discharge the obligations to ensure his "fresh start." The debtor requests this court to look at the changed financial circumstances which have occurred. He argues that shortly after the divorce decree he became financially destitute
The issue thus posed is whether a bankruptcy court may consider circumstances existing at the time of the bankruptcy petition to determine whether payments required by a divorce decree are nondischargeable under § 523. The courts have split on whether such a prospective review of the relative financial positions of the parties is a proper avenue of inquiry in § 523(a)(5) cases. Judge Mabey has convincingly stated the view that "even if the debt was originally imposed on the basis of the need of the spouse or children, the debt cannot be held nondischargeable unless at the time of the filing there exists a present need by the spouse or children that the debt be paid." Warner v. Warner, 5 B.R. 434, 442 (Bkrtcy.D.Utah 1980). This approach balances the need for continued support payments, against the need to secure a fresh start for the debtor. This view was adopted and cited with approval by Judge Martin in Miller v. Miller, 17 B.R. 717, 720 (Bkrtcy.W.D.Wis.1982). The view has been disputed, however, by Judge Stewart when he noted that "[U]nder the governing principles, the bankruptcy court must make its determination based upon the intended function of the award at the time of entry of the state court dissolution decree." In the Matter of Jenson, 17 B.R. 537, 540 (Bkrtcy.W.D.Mo.1982). Circumstances existing at the time of filing bankruptcy are simply not relevant under this approach.
The rule in this district is that a bankruptcy court does not have discretion to balance the need of the recipient spouse against the need of the debtor for a fresh start. Judge Wiseman, in reversing a bankruptcy court decision in which such analysis was employed, noted as follows:
Benz v. Nelson, 20 B.R. 1008, 1011-1012 (M.D.Tenn.1982), reversing in part Benz v. Nelson, 16 B.R. 658 (Bkrtcy.M.D.Tenn.1981). This court is thus precluded from making a prospective inquiry into the relative financial positions of the parties and is restricted to a determination of the nature of the obligation as support or property settlement from an examination of the circumstances at the time of the state court decree. The debtor must depend in cases of changed financial circumstances on those remedies available in state court for appropriate modifications of the decree.
Based upon the foregoing, it is the determination of this court that the monthly payments imposed upon the debtor by the state court judgments are nondischargeable. An appropriate order will be entered.