In re Miller, 93-4221-SAC. Bankruptcy No. 93-40057. Adv. No. 93-7019.

• Decision Date: 03 June 1994
• Docket Number: No. 93-4221-SAC. Bankruptcy No. 93-40057. Adv. No. 93-7019.,93-4221-SAC. Bankruptcy No. 93-40057. Adv. No. 93-7019.
• Citation: 169 BR 715
• Court: U.S. District Court — District of Kansas
• Parties: In re Sharon N. MILLER, Debtor. Sharon N. MILLER, Plaintiff/Appellee, v. Gerald GENTRY, Ph.D., and Micheline Z. Burger, Defendants/Appellants.

169 B.R. 715 (1994)

In re Sharon N. MILLER, Debtor Sharon N. MILLER, Plaintiff/Appellee, v. Gerald GENTRY, Ph.D., and Micheline Z. Burger, Defendants/Appellants.

No. 93-4221-SAC. Bankruptcy No. 93-40057. Adv. No. 93-7019.

United States District Court, D. Kansas.

June 3, 1994.

Jan M. Hamilton, Hamilton, Peterson, Tipton & Keeshan, Topeka, KS, for Sharon N. Miller.

Micheline Z. Burger, Olathe, KS, pro se and for Gerald Gentry, Ph.D.

Robert L. Baer, Trustee, Cosgrove, Webb & Oman, Topeka, KS.

MEMORANDUM AND ORDER

CROW, District Judge.

This bankruptcy appeal arises out of an adversary proceeding in which the bankruptcy court entered an order denying Gerald Gentry, Ph.D., and Micheline Z. Burger's (defendants/appellants) motion for summary judgment and granting Sharon N. Miller's (plaintiff/appellee) cross-motion for summary judgment. In its September 29, 1993, memorandum of decision, the bankruptcy court determined that Miller's obligations to pay certain fees owed to the appellants are dischargeable.

In short, this case presents the issue of whether fees incurred during a divorce proceeding for a guardian ad litem to represent Miller's children's interests and/or a mental health professional to evaluate the Miller children and family are dischargeable in bankruptcy. Based upon recent Tenth Circuit precedent, the court is compelled to conclude that these fees are nondischargeable under 11 U.S.C. § 523(a)(5).¹

Uncontroverted Facts

The essential facts of this case are undisputed. In 1991, Sharon Miller was embroiled in an acrimonious divorce action in the District Court of Johnson County, Kansas. The Millers have four children. In that action, Burger was appointed as guardian ad litem. In that same action, Gentry was appointed as a psychologist to evaluate the Miller family.

Following a divorce hearing, on December 19, 1993, a Decree of Divorce was entered. That decree reserved for later determination the child custody, financial, and property division issues. On January 8, 1993, the state district court issued a memorandum opinion deciding those issues taken under advisement in the December 19, 1993, Decree of Divorce. The January 8, 1993, memorandum opinion provided, inter alia,² that Burger was to be paid $3,000 from funds escrowed in the clerk's office and an additional $6,000, of which Miller was to pay $2,000 and her exhusband, Dr. Stephen Miller, was obligated to pay the balance. The memorandum opinion also provided that Miller was to pay Gentry $1,567 for the services he had provided and that Dr. Miller was to pay $3,133. Counsel for Dr. Miller was requested to draft a decree of divorce reflecting the findings of the court.

On March 6, 1992, an order titled "Decree Determining Custody, Support, and Division of Assets" was filed. That order essentially restates the same findings found in the January 8, 1993, memorandum and order. The order reconfirms that Miller owed Burger $2,000 for guardian ad litem fees and that Miller owed Gentry $1,567.00 for psychology services rendered during the divorce proceeding.

On May 22, 1992, a journal entry of judgment was entered in favor of Burger and Gentry in the amounts ordered in the March 6, 1992, Decree. The journal entry also states that each of these debts, "being in the nature of support on behalf of the parties' minor children, is specifically not dischargeable in bankruptcy." No appeal from that order was taken.

On January 15, 1993, Sharon Miller filed her petition in bankruptcy. After filing for bankruptcy, Miller filed an adversary proceeding to obtain a determination that the debts she owed to Burger and Gentry were dischargeable. Following a pretrial conference, Burger and Gentry filed a timely motion for summary judgment. In that motion, Burger and Gentry argued that the issue of dischargeability had previously been decided by the state district court, and, consequently, Miller was barred from relitigating that same issue under principles of collateral estoppel. In the alternative, Burger and Gentry argued that Miller's debts to each of them were nondischargeable under § 523(a)(5).

Miller sought and obtained two extensions of time to respond to that motion for summary judgment and to file her own motion for summary judgment. On July 23, 1993, after the second extension of time for Miller to respond had expired, Burger and Gentry filed a motion to enter judgment in their favor based upon Miller's failure to act. On July 30, Miller filed another motion for extension of time and simultaneously filed her motion for summary judgment.

On September 29, 1993, the bankruptcy court issued its memorandum of decision. The bankruptcy court first rejected the defendant's arguments that the court should enter judgment as a sanction for delay in filing a response to the defendants' motion for summary judgment and for the delay in filing her cross-motion for summary judgment. The bankruptcy court concluded that "ruling against the debtor without regard to the actual merits of the case but as a sanction for her counsel's transgressions would neither be just or equitable." The bankruptcy court therefore considered the cross-motions for summary judgment on the merits.

Turning to the issue of collateral estoppel, the bankruptcy court concluded that the state district court's declarations on the issue of dischargeability are not binding.

The debtor had not yet filed a bankruptcy petition and had no true incentive to contest the question, and thus the court\'s statements merely offered an advisory opinion. See NEA-Topeka, Inc. v. USD No. 501, 227 Kan. 529, 531-32, 608 P.2d 920 (1980); State ex rel. Hopkins v. Grove, 109 Kan. 619, 620-27, 201 P. 82 (1921). Furthermore, if the debtor agreed to have the finding of nondischargeability included in the judgment, the agreement would probably not be enforceable because 11 U.S.C.A. §§ 524(c) and 727(a)(10) control the way a debtor can waive the discharge of one or more debts and those provisions were not complied with.

Memorandum of decision at 6. Based upon the Tenth Circuit's decision in In re Sampson, 997 F.2d 717, 722 (10th Cir.1993), the bankruptcy court concluded that the language in the state district court's judgment which labels the obligations as nondischargeable support did not conclusively bind it to that finding.

The bankruptcy court then concluded that Miller's obligations to Burger and Gentry were dischargeable.

In determining whether the debtor\'s obligations are nondischargeable support, the court must begin by reviewing the language of § 523(a)(5). In pertinent part, the statute excepts from discharge an individual\'s debt which is:

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

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

(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.

The court certainly has some difficulty understanding how a debt owed to some third party could be viewed as being a debt "to a spouse, former spouse, or child of the debtor." Nevertheless, courts have reached opposing conclusions when deciding whether fees incurred during a divorce proceeding for a guardian ad litem to represent a child\'s interests or a mental health professional to evaluate a child and family are rendered nondischargeable by this language.

One view, represented by the decision in In re Lockwood, 148 B.R. 45 (Bkrtcy. E.D.Wis.1992), holds that such fees are nondischargeable. That case, like others agreeing with it, concludes that an obligation need not be owed directly to the debtor\'s spouse or child in order to be excepted from discharge as a debt for alimony, maintenance or support. Instead, it is sufficient if the debt was incurred for the benefit of a spouse or child. The spouse or child need not be liable for the debt. In the course of reaching this conclusion, the court in Lockwood stated that the Bankruptcy Code\'s "distinction . . . between support and other issues determined by a divorce decree, or its later modification, is probably not in keeping with modern family jurisprudence." 148 B.R. at 48. The contrary view is represented by the decision in In re Linn, 38 B.R. 762, (Bankr.9th Cir.1984). That case, and others similar, hold that such debts are dischargeable because the debtor does not owe them to a child, spouse, or former spouse. See also In re Lanza, 100 B.R. 100 (Bankr.M.D.Fla.1989).

This court agrees with the Linn decision. The Code provides that, to be nondischargeable, the debt must be owed to a spouse or child for maintenance or support. The debt must not only be for support, the only criteria applied by cases like Lockwood, it must also be owed to a spouse or child. One without the other is insufficient under the statute. Whether the policies underlying "modern family jurisprudence" might suggest this is not the way the provision should work is the sort of decision ordinarily to be made by Congress rather than the courts.

It is true that a judicial exception to the owed-to-a-spouse-or-child requirement has been created in some instances for attorney fees incurred by the ex-spouse in the divorce case which the debtor was ordered to pay. As noted in Linn, though, the exception appears to be based on the facts that the ex-spouse would remain liable for the fees even if the debtor-spouse were able to discharge them and that the ex-spouse needed for the debtor to pay them so the ex-spouse could maintain his or her ability to support himself or herself. That is not the situation in this case. Neither the debtor\'s ex-spouse nor their children will be liable for these fees if the debtor is able to discharge her obligation to pay them, so their support will be

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