In re Demkow, Bankruptcy No. B80-02875

• Decision Date: 27 January 1981
• Docket Number: Adv. No. B80-0826.,Bankruptcy No. B80-02875
• Citation: 8 BR 554
• Parties: In re Kurt DEMKOW, Debtor. Eveline JANASHAK, Plaintiff, v. Kurt DEMKOW, Defendant.
• Court: U.S. Bankruptcy Court — Northern District of Ohio

8 B.R. 554 (1981)

In re Kurt DEMKOW, Debtor Eveline JANASHAK, Plaintiff, v. Kurt DEMKOW, Defendant.

Bankruptcy No. B80-02875, Adv. No. B80-0826.

United States Bankruptcy Court, N.D. Ohio, E.D.

January 27, 1981.

Thomas C. Pavlik, Cleveland, Ohio, for plaintiff.

Douglas C. Burns, Brunswick, Ohio, for debtor-defendant.

MEMORANDUM OF OPINION

JOHN F. RAY, Jr., Bankruptcy Judge.

This matter came before the Court on plaintiff's dischargeability complaint, answer of defendant, hearing and oral arguments of counsel.

Plaintiff is the former wife of the debtor, and bases her dischargeability complaint on the judgment entry granting her divorce. Incorporated in the judgment entry is a separation agreement which requires debtor to pay a second mortgage on real estate, and requires him to reimburse plaintiff for attorney's fees incurred in the divorce. Plaintiff contends that these debts are nondischargeable under Section 523(a)(5) of the Bankruptcy Code.

Section 523(a)(5) excepts from discharge any debt

"(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of both spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that —

(A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise; or

(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;"

According to the language of this section, alimony, support, and maintenance are only nondischargeable if payable directly to the supported party, and if designated alimony is actually in the nature of alimony, maintenance or support.

In plaintiff's separation agreement, provisions (5), (6) and (8) provide alimony for the spouse and support for debtor's minor children. However, the husband's obligation to pay the second mortgage appears in provision (7), entitled "DEBTS."¹ Thus from the separation agreement's language, the second mortgage payments are not designated as alimony, and would be dischargeable in bankruptcy.

To avoid this result, plaintiff contends that this Court should look behind the terms of the separation agreement to ascertain whether the debt is actually in the nature of alimony. Certainly Section 523(a)(5)(B) of the Code authorizes the Bankruptcy Court to examine debts designated as alimony, maintenance, or support to make sure that they are actually in the nature of alimony, maintenance, or support. However, section 523(a)(5)(B) does not authorize the examination of debts designated as property settlement. From this precise provision only allowing examination of debts designated as alimony, one must conclude the Congress did not intend...