Cornish, Matter of
| Decision Date | 12 February 1976 |
| Docket Number | No. 75--1403,75--1403 |
| Citation | 529 F.2d 1363 |
| Parties | In the Matter of Frank E. CORNISH, III, Bankrupt. Donald C. SCHILLER, Plaintiff-Appellant, v. Frank E. CORNISH, III, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Donald C. Schiller, Chicago, Ill., for plaintiff-appellant.
Sanford J. Green, Chicago, Ill., for defendant-appellee.
Before SWYGERT and TONE, Circuit Judges, and WHELAN, District Judge. *
The question is whether attorney fees awarded to the wife in an Illinois divorce action but which were ordered paid directly to her attorney constitute a nondischargeable debt in a voluntary bankruptcy proceeding filed by the husband. We hold that fees awarded are nondischargeable and we reverse the order of the district court.
The plaintiff-appellant, Donald C. Schiller, was the attorney who represented Gloria J. Cornish in a divorce action, brought by her against her husband, Frank E. Cornish III, in the Circuit Court of Cook County, Illinois. On September 11, 1973, Mrs. Cornish was granted a divorce. The divorce decree included a provision that the husband was to pay Attorney Schiller the sum of $500 'as an award toward his contribution to the wife's attorney's fees and costs.'
On February 12, 1974 Frank E. Cornish filed a voluntary petition in bankruptcy in the federal district court for the Northern District of Illinois. The schedule of debts attached to the petition included the $500 item owed the plaintiff. Thereafter the plaintiff filed a complaint, along with a proof of claim, requesting an order excepting the award of attorney fees from discharge. The request was disallowed and the plaintiff appealed.
Section 17(a)(7) of the Bankruptcy Act, 11 U.S.C. § 35(a)(7) (1970), provides that '(a) discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as . . . are for alimony due or to become due, or for maintenance of support of wife or child . . ..' The term 'alimony' in section 17(a)(7) means payment in the nature of support for the former spouse. Nichols v. Hensler, 528 F.2d 304, 308 (7th Cir. 1976). An allowance for the former wife's attorney's fees, which she would otherwise be obligated to pay, would seem to meet this definition. This view is confirmed by an examination of the law of Illinois, the state where the divorce proceeding was held.
The first expression on the question by the Illinois Appellate Court appears in the recent case of Morrey v. Morrey, 24 Ill.App.3d 77, 320 N.E.2d 503 (1974). In that case the wife was granted a divorce and the husband was ordered to pay certain sums by way of alimony for the wife and support for three minor children. The husband was ordered to pay the wife's attorney the sum of $800.
Subsequently the husband filed a petition in bankruptcy which resulted in the discharge of his debts. Thereafter he sought to enjoin the attorney from further attempting to collect the fees allowed in the divorce action. The Circuit Court of Cook County granted an injunction, but the Illinois Appellate Court reversed on the basis of an earlier decision covering the same question written by then-District Judge Walter C. Lindely. In Merriman v. Hawbaker, 5 F.Supp. 432 (E.D.Ill.1934), Judge Lindley held that an award of attorney fees under section 40.16, Illinois Revised Statutes, a part of the Illinois Divorce Act, had the essential elements of alimony and that the amount of the award was a nondischargeable debt. Judge Lindley wrote:
It is obvious, under the legal principles hereinbefore set forth and the statute quoted, that it was the intent of the Legislature that an order allowing to the plaintiff money for her solicitors' fees should be treated in exactly the same manner, stand...
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In re Hart
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Melichar v. Ost, Civ. No. K-77-391.
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Catlow, Matter of
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