Dvorak, Matter of
| Decision Date | 26 March 1993 |
| Docket Number | No. 92-7203,92-7203 |
| Citation | 986 F.2d 940 |
| Parties | , Bankr. L. Rep. P 75,196 In the Matter of Gloria Jean R. DVORAK and, James O. Dvorak, Debtors. Gloria Jean R. DVORAK, Appellant, v. Roland CARLSON, Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gloria Jean R. Dvorak, pro se.
Larry D. Woody, Victoria, TX, for appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before JOLLY, DUHE, and BARKSDALE, Circuit Judges.
Jean Dvorak appeals the district court's affirmation of the bankruptcy court's determination that attorney's fees incurred during the custody battle over Jean Dvorak's daughter are a non-dischargeable debt under Chapter 7 of the Bankruptcy Code. We affirm.
After the dissolution of her marriage to Wesley Rich, Appellant Jean Dvorak (Appellant) sought custody of their daughter, Brandi Rich. During the ensuing child custody litigation in state court, Wesley Rich was represented by attorney Barbara Fritz, and attorney Roland Carlson was appointed by the state court as Brandi Rich's guardian ad litem. After a jury trial, the state court terminated Appellant's parental rights, awarded custody to Wesley Rich, and ordered Appellant to pay fees charged by Barbara Fritz and a portion of fees charged by Roland Carlson as guardian ad litem.
Appellant appealed to the state appellate court, and her appeal was dismissed. Shortly thereafter, she filed for relief under Chapter 7 of the Bankruptcy Code. Appellees Barbara Fritz and Roland Carlson then filed a complaint in bankruptcy court seeking to declare as non-dischargeable under Bankruptcy Code § 523(a)(5) Appellant's court-ordered obligation to pay them. 1
The bankruptcy court concluded that the court-ordered payment of attorneys' fees incurred in post-divorce/child custody litigation should be recognized as child support, and therefore non-dischargeable under § 523(a)(5). In reaching this conclusion the bankruptcy court relied on In re Snider, 62 B.R. 382 (Bankr.S.D.Tex.1986) (), and In re Laney, 53 B.R. 231 (Bankr.N.D.Tex.1985) (). The district court subsequently affirmed the bankruptcy court's decision.
We review findings of fact under the clearly erroneous standard, but are free to review conclusions of law de novo. In re Consolidated Bancshares, 785 F.2d 1249, 1252 (5th Cir.1986) (citing Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d 1303, 1307-08 (5th Cir.1985)).
The issue we review is a narrow issue of law: whether Appellant's court-ordered obligation to pay fees charged by Barbara Fritz and a portion of fees charged by Roland Carlson as guardian ad litem is considered child support, and therefore non-dischargeable under 11 U.S.C. § 523(a)(5). Having carefully considered the relevant case law, we conclude that the bankruptcy court and district court correctly determined that Appellant's debt is non-dischargeable.
Section 523(a)(5) does not discharge a debtor from any debt for support of his or her child, if that debt is in connection with a court order. 11 U.S.C. § 523(a)(5). Barbara Fritz, representing Wesley Rich, and Roland Carlson, as Brandi Rich's guardian ad litem, supplied services during the child custody hearing of Brandi Rich. That hearing was clearly for Brandi Rich's benefit and support, as the purpose of the hearing was to determine who could provide the best home for her. See In re Laney, 53 B.R. at 233. The state court subsequently ordered Appellant to pay fees charged by Barbara Fritz and a portion of fees charged by Roland Carlson.
Because the fees charged by Appellees were incurred during ...
To continue reading
Request your trial
-
Trentadue v. Gay
...Cir.1992) ; In re Hudson, 107 F.3d 355, 357 (5th Cir.1997) ; Rogers v. Morin, 189 Fed.Appx. 299, 302 (5th Cir.2006) ; In re Dvorak, 986 F.2d 940, 941 (5th Cir.1993) ; In re Rehkow, 2006 WL 6811011, at *3–4 (9th Cir. BAP Aug. 17, 2006)aff'd, 239 Fed.Appx. 341 (9th Cir.2007) ; In re Catlow, 6......
-
In re Papi, Bankruptcy Case No. 09 B 12379 (Bankr. N.D. Ill. 5/4/2010), Bankruptcy Case No. 09 B 12379.
...(9th Cir. 1998); Holliday v. Kline (In re Kline), 65 F.3d 749, 751 (8th Cir. 1995); Miller, 55 F.3d at 1490; Dvorak v. Carlson (In re Dvorak), 986 F.2d 940, 941 (5th Cir. 1993); Pauley v. Spong (In re Spong), 661 F.2d 6, 11 (2d Cir. The rationale for the holdings has varied. Some courts hav......
-
Davis, Matthews & Quigley, P.C. v. Elhag (In re Elhag)
...of maintenance or support can be nondischargeable under § 523(a)(5) even if payable directly to the attorney"); Dvorak v. Carlson (In re Dvorak) , 986 F.2d 940 (5th Cir. 1993) ; In re Silansky , 897 F.2d 743, 744-45 (4th Cir. 1990) ; Pauley v. Spong (In re Spong) , 661 F.2d 6, 11 (2nd Cir. ......
-
In re Papi
...1141 (9th Cir.1998); Holliday v. Kline (In re Kline), 65 F.3d 749, 751 (8th Cir.1995); Miller, 55 F.3d at 1490; Dvorak v. Carlson (In re Dvorak), 986 F.2d 940, 941 (5th Cir.1993); Pauley v. Spong (In re Spong), 661 F.2d 6, 11 (2d The rationale for the holdings has varied. Some courts have e......
-
Chapter 25 - § 25.5 • DISCHARGE AND DISCHARGEABILITY
...re Chang), 163 F.3d 1138 (9th Cir. 1998); Holliday v. Kline (In re Kline), 65 F.3d 749 (8th Cir. 1995); Dvorak v. Carlson (In re Dvorak), 986 F.2d 940 (5th Cir. 1993); and Pauley v. Spong (In re Spong), 661 F.2d 6 (2d Cir. 1981). The prevailing view in these courts is that the debt is in th......
-
Becker Mckay Wyckoff, They?re Just Letting Anyone in These Days: the Expansion of § 523(a)(5)?s ?domestic Support Obligation? Exception to Discharge
...2010) (finding attorney’s fees owed directly to ex-wife’s attorney within payee requirement).See, e.g., Dvorak v. Carlson (In re Dvorak), 986 F.2d 940, 941 (5th Cir. 1993); Gianakis v. Gianakis(In re Gianakis), 917 F.2d 759, 762–64 (3d Cir. 1990); In re Seibert, 914 F.2d 102, 105–07 (7th Ci......