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In re Strickland

August 01, 1996

IN RE KENNETH I. STRICKLAND, DEBTOR. KENNETH I. STRICKLAND, PLAINTIFF-APPELLANT,
v.
JOHN HUGH SHANNON, LAUREN J. STRICKLAND, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Middle District of Florida. (Nos. 93-1393-CIV-T-24A, 91-14853-8P7). Susan C. Bucklew, Judge. ( No. 160 B.R. 675). Alexander L. Paskay, Judge.

Before Cox and Barkett, Circuit Judges, and Bright,*fn* Senior Circuit Judge.

Author: Barkett

BARKETT, Circuit Judge:

Kenneth Strickland ("debtor") appeals from a district court order finding non-dischargeable his $9,430.50 debt to his former spouse Lauren Strickland ("former spouse") and her attorney for attorney fees resulting from the debtor's failed attempt to modify child-custody and child-support provisions of a divorce judgment. Reversing the bankruptcy court, the district court found the debt non-dischargeable under 11 U.S.C. § 523(a)(5) because it was in the nature of support for the minor child and/or the former spouse. We affirm.

I. BACKGROUND

A 1985 state court judgment dissolved the marriage of the debtor and his former spouse, and provided that parental responsibility for the minor child would be shared, that the child's primary physical residence would be with the former spouse, and that the debtor would pay $200 per month in child support. The debtor later petitioned to modify the judgment so as to designate his home as the child's primary residence, terminate his child support payments, and require the former spouse to pay child support. The state court denied the petition and ordered the debtor to pay $9,430.50 in attorney fees and costs incurred by the former spouse in defending against the petition.

Thereafter filing for bankruptcy, the debtor filed a complaint seeking a determination that his debt for the attorney fees award was dischargeable under 11 U.S.C. § 523(a)(5), which provides that a debtor cannot be discharged from any debt to a "former spouse ... or child of the debtor ... for ... support of such spouse or child, in connection with a ... divorce decree or other order of a court of record." The bankruptcy court allowed the discharge, holding as a matter of law that an obligation to pay attorney fees arising from a post-dissolution child-custody dispute does not constitute "support" under § 523(a)(5). The district court reversed, holding that an award for attorney fees relating to post-dissolution child-custody litigation involving child-support issues does constitute support under § 523(a)(5) and therefore is non-dischargeable.

On appeal, the debtor argues that the district court improperly held as a matter of law that the attorney fees award constituted "support" under § 523(a)(5). He urges us to remand the case to the bankruptcy court for a determination of whether the award of attorney fees, in fact, constituted support for the minor child or the former spouse.

II. DISCUSSION

Under Chapter VII of the Bankruptcy Code, a debtor may obtain a general discharge "from all debts that arose before the date of the order for relief." 11 U.S.C. § 727(b) (1994). The Code does not, however, discharge a debtor from any debt:

(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record... but not to the extent that--

(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support....

Id. § 523(a)(5).

The issue of whether the attorney fees award in this case constituted "support" within the meaning of § 523(a)(5) is a matter of federal law, which we review de novo. See In re Harrell, 754 F.2d 902, 904-05 (11th Cir.1985). In In re ...


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