Matter of O'Leary, Bankruptcy No. 181-01250

• Decision Date: 06 May 1982
• Docket Number: Adv. No. 181-0684.,Bankruptcy No. 181-01250
• Citation: 20 BR 79
• Court: U.S. Bankruptcy Court — Eastern District of California
• Parties: In the Matter of Patrick Walter O'LEARY, Debtor. VIZZARD, BAKER, SULLIVAN & McFARLAND, Plaintiff, v. Patrick Walter O'LEARY, aka Patrick W. O'Leary, Defendant.

20 B.R. 79 (1982)

In the Matter of Patrick Walter O'LEARY, Debtor VIZZARD, BAKER, SULLIVAN & McFARLAND, Plaintiff, v. Patrick Walter O'LEARY, aka Patrick W. O'Leary, Defendant.

Bankruptcy No. 181-01250, Adv. No. 181-0684.

United States Bankruptcy Court, E.D. California.

May 6, 1982.

Vizzard, Baker, Sullivan & McFarland, pro se and Jere N. Sullivan, Bakersfield, Cal., for plaintiff.

Patrick O'Leary, in pro per.

OPINION

ECKHART A. THOMPSON, Bankruptcy Judge.

Counsel for debtor's wife in a prior divorce proceeding was awarded judgment for attorney's fees to be paid by the debtor. Counsel, plaintiff herein, seeks to have said judgment declared nondischargeable.

Plaintiff's complaint alleges that said attorney fees were awarded "as and for spousal support", defendant had no attorney, filed no answer and the allegations of the complaint were not denied, nor disproved by testimony and therefore must be accepted as true.

Except for the provisions of California Civil Code section 4371 the Court would be of the opinion that the debt in question would be dischargeable since it is not by its terms owing to the spouse as required by the specific language of Bankruptcy Code section 523(a)(5). However, said section 4371 provides as follows:

When the court orders one of the parties to pay costs and attorneys\' fees for the benefit of the other party, such costs and fees may, in the discretion of the court, be made payable in whole or in part to the attorney entitled thereto. An order of the court providing for payment of such costs and fees may be enforced directly by such attorney in his own name or by the party in whose behalf such order was made....."

Since by virtue of said code section said judgment for attorneys' fees may be enforced either by the wife or the attorney, it seems clear that it is a debt owing to the wife (as well as to the attorney) as required by Bankruptcy Code section 523(a)(5). The Court therefore finds said debt to be nondischargeable.

The Court notes that Judge Lloyd George in Matter of Gwinn 8 BR 905 (1981), indicated that only the wife or child has standing to bring an action such as this as the legislative history indicates an intention to benefit only the spouse and the children. This Court is of the opinion that since under the literal language of section 523(a)(5) this debt is nondischargeable and since the Code does not prohibit the attorney from bringing the suit in his own name, this Court should not interpret said sectio...