In re French, Bankruptcy No. 80-273-BK-J-GP

• Decision Date: 23 March 1982
• Docket Number: Adv. No. 81-305.,Bankruptcy No. 80-273-BK-J-GP
• Citation: 19 BR 255
• Parties: In re William Jackson FRENCH, Debtor. Virginia L. French STEVENS, Plaintiff, v. William Jackson FRENCH, Defendant.
• Court: U.S. Bankruptcy Court — Middle District of Florida

19 B.R. 255 (1982)

In re William Jackson FRENCH, Debtor Virginia L. French STEVENS, Plaintiff, v. William Jackson FRENCH, Defendant.

Bankruptcy No. 80-273-BK-J-GP, Adv. No. 81-305.

United States Bankruptcy Court, M.D. Florida, Jacksonville Division.

March 23, 1982.

Harry B. Mahon, Jacksonville, Fla., for plaintiff.

Anthony F. Marinucci, Jacksonville, Fla., for defendant.

MEMORANDUM DECISION

GEORGE L. PROCTOR, Bankruptcy Judge.

This is an action seeking an exception to discharge under 11 U.S.C. § 523(a)(5).

Virginia L. French Stevens, plaintiff, is the former spouse of William Jackson French, defendant. Plaintiff and defendant were divorced by Final Judgment of Dissolution of Marriage on February 4, 1980. Incorporated into the Final Judgment was a stipulation agreement dated December 17, 1979. Pursuant to said agreement, defendant was obligated to hold plaintiff harmless from indebtedness to Commercial Credit Corporation which was secured by a 1973 Ford Thunderbird automobile. Defendant failed to carry out his obligation and plaintiff, as a joint debtor of Commercial Credit Corporation, was required to pay $750.00 to Commercial Credit Corporation to satisfy the debt, and to expend $100.00 as attorney's fee. Plaintiff claims that the hold harmless provision was in the nature of child support for a minor child born to plaintiff and defendant during their marriage and hence the debt is non-dischargeable under § 523(a)(5) of the Bankruptcy Code. Defendant contends that the provision was part of the property settlement which is subject to discharge.

To resolve this conflict, the Court must examine the stipulation agreement which plaintiff and defendant executed and determine therefrom the intent of the parties. See, e.g., In re Smith, 436 F.Supp. 469, 475 (N.D.Ga.1977). The decision in this case turns on whether the Court can find, as plaintiff asserts, that there is a nexus between the hold harmless provision and the support of the minor child. In making this determination, "The Court may look behind the mere recitations of the settlement agreement and look to the substance of the situation." In re Massimini, 8 B.R. 428, 431 (Bkrtcy.W.D.Pa.1981).

On its face, the stipulation agreement contains elements of both property settlement and child support. The hold harmless provision appears among those provisions dealing with the division of the marital property, which gives a strong inference that at the time the agreement was made the provision was...