Smith v. Pritchett (In re Smith), 586 F.3d 69 (1st Cir. Nov. 6, 2009) (Torruella, Boudin, Saris) ($50-per-day late-payment penalty in divorce decree was not a DSO because it was contingent and not certain to be paid, it was a fixed charge unrelated to the amount of alimony owed and it was intended to ensure that the debtor made payments—not to provide support.), aff'g 398 B.R. 715 (B.A.P. 1st Cir. Dec. 29, 2008) (Votolato, Lamoutte, Feeney) ($50 per day late-payment penalty in divorce decree was not actually in the nature of alimony, maintenance or support and thus was not a DSO; because $50 per day penalty was not a DSO, lien that secured penalty could be avoided under § 522(f).).
Hernandez v. Nebraska Dep't of Health & Human Servs. (In re Hernandez), 496 B.R. 553 (B.A.P. 8th Cir. Aug. 8, 2013) (Kressel, Schermer, Shodeen) (Child support mistakenly paid by state was a priority domestic support obligation under § 101(14A)(B).).
Beckx v. Beckx (In re Beckx), No. CC-08-1193-DCPa, 2000 WL 35888261 (B.A.P. 9th Cir. Mar. 18, 2009) (unpublished) (Dunn, Carlson, Pappas) (Support Buyout and Equalizing Payment were actually in the nature of support notwithstanding that former spouse waived all right to support in stipulated state court judgment; pre-BAPCPA case law construing § 523(a)(5) is applicable to new § 101(14A), and bankruptcy court appropriately looked beyond state court labels to base its support decision on actual need for support and income imbalance.).
Balisle & Roberson, S.C. v. Symdon, No. 14-cv-832-wmc, 2016 WL 2731687 (W.D. Wis. May 10, 2016) (Conley) (Attorney fees award by state domestic relations court is a domestic support obligation; remand necessary to determine to whom it is owed.), vacating and remanding No. 13-14692, 2014 WL 4966680, at *2-*4 (Bankr. W.D. Wis. Oct. 3, 2014) (Martin) (Attorney fees owed to former spouse's domestic relations counsel are nonpriority and dischargeable because not owed to an entity listed in § 523(a)(5) or § 101(14A). Judgment during prior Chapter 7 case that debt was nondischargeable under § 523(a)(5) "and" § 523(a)(15) was not preclusive. "[T]his court found the attorneys' fees were non-dischargeable under both § 523(a)(5) and (a)(15), causing inclusion of 11 U.S.C. § 523(a)(5) to be superfluous or at least ambiguous considering the fact those sections are mutually exclusive. . . . [B]ankruptcy courts in the Seventh Circuit have held non-dischargeable awards of attorneys' fees incurred by a spouse, former spouse, or child in dissolution or support litigation, notwithstanding a provision for direct payment to the attorney. . . . Essentially, despite pre-BAPCPA cases, Congress chose not to include attorneys in the list of entities that could recover domestic support obligations notwithstanding discharge. . . . In this case, . . . the attorneys' fees were owed directly to [counsel] and therefore, do not fit the class of obligations included in the definition of a 'domestic support obligation' because [counsel] is not a spouse, former spouse, etc.").
McNeil v. Drazin, 499 B.R. 484 (D. Md. Oct. 10, 2013) (Quarles) (Fees for attorney appointed to represent interests of minor children in divorce proceeding were actually in the nature of support though payable directly to attorney; fees were entitled to priority and would be nondischargeable.).
Vasquez v. Georgia Dep't Human Resources Office of Child Support Servs., No. CV507-82, 2008 WL 4425304 (S.D. Ga. Sept. 30, 2008) (Wood) (In an unusual procedural context, remand is necessary to determine whether child support claim filed by debtor on behalf of Georgia Department of Human Resources is a valid debt, is entitled to priority or is entitled to no payment as provided in confirmed plan.).
Wisconsin Dep't of Workforce Dev. v. Ratliff, 390 B.R. 607 (E.D. Wis. June 4, 2008) (Randa) (Claim for food stamp overpayment is priority DSO under § 101(14A) and § 507(a)(1)(B) that is recoverable by Wisconsin Department of Workforce Development. Debtor received prepetition overpayment of food stamp benefits based on misrepresentation that former husband was not living at home. Wisconsin processed overpayment administratively before the petition and filed an unsecured priority claim. "[T]he food stamp overpayment was in 'the nature of support' of the children of the Debtor . . . . [T]he amount is owed to a governmental unit . . . . [T]he debt was established before the order for relief by reason of a determination made in accordance with applicable nonbankruptcy law by the Department. . . . [T]he debt was not assigned to a governmental entity. . . . Ratliff's debt to the Department for the overpayment of support, in the form of food stamps, falls within the ambit of the definition of a 'domestic support obligation' under § 101(14A). . . . The Department's claim does not qualify as a first priority claim under § 507(a)(1)(A) because the domestic support obligation was not owed to or recoverable by Ratliff's children as of the date Ratliff filed the petition. . . . However, . . . the Department had an unsecured claim for food stamp overpayments which were owed directly to or recoverable by the Department. . . . [T]he recovered funds will be applied and distributed in accordance with applicable nonbankruptcy law; specifically, the applicable rules and regulations governing the distribution of food stamp overpayments which were recovered by the Department. . . . The Department's claim for food stamp overpayments should be afforded priority status under § 507(a)(1)(B).").
In re Bornemann, No. 07-cv-528-JPG, 2008 WL 818314 (S.D. Ill. Mar. 21, 2008) (Gilbert) (Obligation to pay former spouse one-half of retirement plan is not priority domestic support obligation.).
In re Hairston, No. 16-00574, 2019 WL 1750902, at *2 (Bankr. D.D.C. Apr. 12, 2019) (Teel) (Child support portion of domestic relations judgment is priority claim entitled to full payment with postpetition interest included in the claim by § 101(14A); plan must pay postpetition interest as part of the priority DSO. Section 523(a)(15) is a nondischargeability provision that does not apply in a Chapter 13 case at completion of payments and does not create a priority debt for purposes of confirmation. “[A] claim described in § 523(a)(15) is not a domestic support obligation and § 523(a)(15) does not accord priority to a claim described therein. It only addresses an issue of dischargeability. . . . The Bankruptcy Code bars treating as an allowed claim interest accruing postpetition under nonbankruptcy law on the obligation not constituting a child support obligation. . . . However, under 11 U.S.C. § 101(a)(14A) [sic], a domestic support obligation includes ‘ . . . interest that accrues on that debt as provided under applicable nonbankruptcy law notwithstanding any other provision of this title.’ It follows that the postpetition interest owed . . . with respect to child support arrears (a type of domestic support obligation) is an allowed claim entitled to priority notwithstanding § 502(b)(5).”).
In re Hawk, 595 B.R. 556, 559–63 (Bankr. C.D. Ill. Jan. 9, 2019) (Perkins) (Claim by Illinois Department of Human Services for reimbursement of overpayment of child care benefits is in the nature of support, is a domestic support obligation and is entitled to second-tier, first priority in a Chapter 13 case. “In 1984, Congress amended section 523(a)(5) to resolve a split of authority regarding the dischargeability of support debts assigned by a debtor’s family member to a government entity by providing that such debts were nondischargeable, notwithstanding that the debt was payable as reimbursement to the government. . . . When section 507(a)(7) was added to the Bankruptcy Code in 1994, giving domestic support debts priority status for the first time, the priority provision differed from the dischargeability provision of section 523(a)(5) in that it did not grant priority to any assigned debts, including those assigned to a governmental agency. . . . The BAPCPA definition’s stand-alone reference to a governmental unit in section 101(14A)(A)(ii), establishes that a governmental unit may hold a DSO claim, not only for a debt assigned to it, but also for a debt that is owed to it as the original obligee, so that a debtor’s direct liability to a governmental unit for reimbursement of funds advanced is now expressly included within the class of debts that may be DSOs. . . . That same provision, in conjunction with section 507(a)(1), also establishes, for the first time, that a claim for a DSO held by a governmental unit is entitled to priority status. . . . [A] direct debt to a governmental unit that meets the definition of a DSO, has first-level, second-tier priority notwithstanding that the debt did not originate as one owed to a spouse or child and did not arise out of a marital dissolution or other domestic relations proceeding. . . . A debtor’s direct liability to reimburse assistance payments made by a governmental unit is plainly encompassed by the definition of a DSO and is eligible for priority status under section 507(a)(1)(B).”).
In re Babineau, No. 18-10614-BAH, 2018 WL 6718611 (Bankr. D.N.H. Dec. 18, 2018) (unpublished) (Harwood) (Attorney fees awarded by domestic relations court when debtor misrepresented income and former spouse hired counsel to correct the misrepresentation were in the nature of support; the fees were a domestic support obligation entitled to priority and full payment pursuant to §§ 507(a)(1) and 1322(a)(2).).
In re Waldorf, No. 16-17473-mdc, 2018 WL 4998117 (Bankr. E.D. Pa. Oct. 15, 2018) (Coleman) (Though awarded in part because of debtor’s bad behavior during divorce proceeding, attorney fees awarded by state court were based in larger part on relative needs of spouses and award was a domestic support obligation for purposes of §§ 101(14A) and 507(a)(1)(A). That former spouse discharged a portion of attorney fees in separate Chapter 7 case is not relevant to whether claim against the debtor is a DSO.).
In re Robinson, No. 16-62573, 2017 WL 2414430, at *1–*2 (Bankr. N.D. Ohio June 2, 2017) (Kendig) (“Priority status is only available to taxes due within three years before the petition date. Debtors filed their petition on December 17, 2016. Taxes due before December 17, 2013 do not have priority status. Debtors’ 2012 taxes were due on April 17, 2013. Accordingly, Debtors’ 2012 taxes are not entitled to priority status. . . . Section 507(a)(8)(G) grants priority to ‘a penalty related to a claim of a kind specified in this paragraph and in compensation for actual pecuniary loss.’ Generally, fines are not considered compensation for pecuniary loss, but imposed as a punishment or deterrent. . . . City did not provide any evidence . . . that the fees and fines associated with the 2015 taxes were intended as anything other than a deterrent. Accordingly, any fines or fees associated with the 2015 taxes are not entitled to priority status.”).
In re Hurst, No. 16-498-RLM, 2016 WL 3919763 (Bankr. S.D. Ind. July 8, 2016) (Moberly) (Equalization award that “evened up” the division of property was not a domestic support obligation, the debt did not have to be paid in full to confirm a plan and the debt was not excepted from discharge at the completion of payments in a Chapter 13 case.).
In re Cole, 548 B.R. 132 (Bankr. E.D. Va. Mar. 24, 2016) (Phillips) ($50,000 attorney fee award by domestic relations court was domestic support obligation entitled to priority and full payment through Chapter 13 plan.).
In re Lightfoot, No. 13-32970-H4, 2015 WL 3956211, at *3-*4 (Bankr. S.D. Tex. June 22, 2015) (Bohm) (After BAPCPA, postpetition interest is part of a domestic support obligation and plan must pay postpetition interest—notwithstanding § 1322(b)(10). "The child support arrearage claim . . . is defined to include interest, here, 6% under the Texas Family Code . . . . [T]he changes to § 101 and § 507, together, not only allow but require Chapter 13 plans to provide for payment of post-petition interest on DSO claims. This is true despite § 1322(b)(10) . . . .").
In re Crane, No. 14-30248-ABA, 2015 WL 1866044 (Bankr. D.N.J. Apr. 21, 2015) (Altenburg) (Obligation to provide health insurance or to pay health insurance premiums of former spouse is a priority, nondischargeable, domestic support obligation.).
In re Okrepka, 533 B.R. 327 (Bankr. D. Kan. Mar. 4, 2015) (Berger) ($55,000 "equalizing payment" was nonpriority property settlement, not domestic support obligation, that could be discharged in Chapter 13 case; however, former spouse had lien to secure equalizing payment and debtor was not able to confirm a plan that would pay the lien. Stay relief was appropriate.).
In re Donahue, 520 B.R. 782, 784-87 (Bankr. W.D. Mo. Oct. 27, 2014) (Federman) (Property taxes for 2013 were "incurred" for § 507(b)(8)(B) purposes on January 1, 2013, and are a priority claim in a Chapter 13 case filed on April 30, 2013; property taxes for 2013 are not administrative expenses under § 503(b)(1)(B), and § 1305 does not prohibit debtors from filing a claim on behalf of taxing authority under § 501(c). "[W]hile the Debtors would be liable for taxes on any property they owned on January 1, 2013 (before the petition was filed), those taxes did not 'become payable' until after the mill rate, and thus the actual tax amount, was determined in the fall of 2013. The tax bills were sent in November, 2013, and the taxes were last payable without penalty on December 31, 2013 . . . . Thus, it seems to be undisputed that the 2013 tax obligation 'became payable . . . while the case is pending,' as that phrase is used in § 1305. . . . [S]ince Platte County has chosen not to file a claim for the 2013 taxes under § 1305, the Debtors cannot rely on that provision to require the 2013 taxes be paid through the Plan. That said, if the 2013 taxes are a prepetition priority claim under § 507(b)(8)(B), as opposed to a postpetition administrative claim under § 503(b)(1)(B), then the Debtors need not rely on § 1305 to treat the claim through the Plan. Section 503(b)(1)(B) provides that there shall be allowed administrative expenses for any tax 'incurred by the estate, . . . including property taxes . . . except a tax of a kind specified in section 507(a)(8) of this title.' . . . Section 507(a)(8) gives priority treatment to 'allowed unsecured claims of governmental units, . . . for . . . a property tax incurred before the commencement of the case and last payable without penalty after one year before the date of the filing of the petition.' . . . There is no dispute that the taxes at issue here are 'property taxes.' Further, since the taxes were 'last payable without penalty' on December 31, 2013, they were 'last payable without penalty after one year before the date of the filing of the petition.' . . . 'The Bankruptcy Code does not define when a property tax obligation is "incurred."' . . . [T]he determination of when a state tax is 'incurred' is governed by state law. . . . [A]s part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Congress changed the word 'assessed' in § 507(b)(8)(B) to 'incurred,' . . . . The critical date, then, is when the Debtors became liable for payment of the 2013 taxes under Missouri law. . . . Under [Missouri law,] regardless of the fact that the amount of the tax is not known, and thus the tax bill cannot as a practical matter be paid, before the fall of a given year, the owner of real or personal property on January 1 becomes 'liable' for the taxes due for that year, whatever they may turn out to be. It is, in effect, a contingent and unliquidated claim incurred on January 1[.] . . . [U]nder Missouri law, the Debtors became contingently liable for the 2013 taxes on January 1, 2013. The claim for the 2013 taxes was thus incurred for these purposes on that date. It is, therefore, a priority prepetition claim under § 507(a)(8), and not an administrative claim under § 503(b)(1)(B). . . . Debtors are not prohibited from proposing a Plan which provides for the payment of the 2013 taxes as a priority claim through the Plan. . . . [B]ecause this is a prepetition claim under §§ 507(b)(2)(B) and 502(i), as opposed to a postpetition claim, 'there is nothing in § 1305 that provides a basis to disallow a proof of claim filed by a debtor on behalf of a creditor under § 501(c) of the Bankruptcy Code.'").
In re Larson-Asplund, 519 B.R. 682 (Bankr. E.D. Mich. Oct. 8, 2014) (Shefferly) (Obligation in consent decree to pay half of college education expenses was not a domestic support obligation because state court said it was contract debt, not child support. Debtor is not eligible for discharge in current Chapter 13 case because of § 1328(f), but college education expense provision was not a priority debt and did not have to be paid in full to accomplish confirmation.).
In re Boyette, No. 12-31869, 2014 WL 4966702 (Bankr. W.D. La. Oct. 3, 2014) (Hunter) ("Equalizing payment" required by divorce decree was not a domestic support obligation and was not entitled to priority.).
In re Parra, No. 14-10339 TL, 2014 WL 3616209 (Bankr. D.N.M. July 21, 2014) (Thuma) (Fact issues preclude summary judgment with respect to whether state court decree created a domestic support obligation notwithstanding that debtor did not respond to motion for summary judgment by former spouse.).
In re Rivet, No. 13-11726, 2014 WL 1876285 (May 8, 2014) (unpublished) (Nugent) (Second mortgage on marital residence was priority debt and nondischargeable domestic support obligation when debtor was solely liable, debtor's income was significantly greater than former spouse's income at time of divorce, children lived in the house and payment of second mortgage would actually provide support.).
In re Willis, No. 13-03391, 2014 WL 231982, at *2-*3 (Bankr. S.D. Ala. Jan. 21, 2014) (Mahoney) (Debt to second former spouse that paid off judgment lien of first former spouse is property settlement, not domestic support obligation, notwithstanding that first spouse's lien would have been a DSO. First spouse took judgment for unpaid child support and put lien on real property titled in debtor and second spouse. Post-nuptial agreement gave property to second spouse, but first spouse's lien was satisfied from proceeds of sale of property. Second spouse was awarded lost value, but claim of second spouse against debtor did not partake of DSO character of first spouse's lien. "Mr. Willis owes Ms. Conn $44,500.00 as a result of her having been forced to pay part of his child support arrearage to Laura Willis. Ms. Conn argues that since the debt arises out of her being forced to pay a DSO, the debt is a DSO. . . . The $44,500.00 debt is not owed to Ms. Conn on behalf of Abigail Conn, Mr. Willis's daughter with Ms. Conn, and it is not owed in order to support Abigail Conn. While the debt is linked to a DSO owed to Laura Willis, Laura Willis's DSO is not a claim in this case. Rather, that DSO was satisfied. Admittedly, Ms. Conn's claim is a debt arising out of the satisfaction of Laura Willis's DSO, but that does not convert Ms. Conn's claim into a DSO claim. If Mr. Willis had borrowed money from another relative to satisfy his DSO to Laura Willis, his debt to the other relative would not somehow become a DSO.").
In re Mazzarella, No. 13-61819, 2013 WL 6051036, at *2-*3 (Bankr. N.D. Ohio Nov. 15, 2013) (Kendig) (Suspension period in unnumbered paragraph of § 507(a)(8) does not apply when debtor and taxing authority agree to a prepetition payment arrangement. "The statute is quite specific in outlining when tolling is permissible. . . . In the face of the statute's specificity, the court has no basis to allow suspensions of the lookback period for reasons not included in the statute. From a policy standpoint, it is easy to understand that a governmental unit should not be penalized for a time period in which it is prohibited from collecting. . . . The City's voluntary, temporary relinquishment of rights to enforce collection through other legal means is not commensurate with an inability to collect. Additionally, one noted precept of § 507(a)(8) is to 'balance three competing interests: those of general creditors, the debtor, and the tax collector.' . . . Allowing the City to use the agreement to toll the statute unfairly tips the balance in favor of City. . . . Allowing the lookback period to be tolled for this period of time would allow the City to maintain its priority position over the general unsecured creditors for, in some instances, three times longer than normal. The consequence is that government units must apply payments to the oldest taxes and not extend plans beyond the payment period or they lose priority status. . . . [T]he repayment agreements between City and Debtor did not toll the three year lookback period in 11 U.S.C. § 507(a)(8)(A)(i).").
In re Tilen-Bernabe, 499 B.R. 241, 245 (Bankr. D.P.R. Oct. 2, 2013) (Godoy) (Assuming payment plan between debtor and Commonwealth was an "offer in compromise" for tolling purposes under § 507(a)(8)(A)(ii)(I), notice of garnishment upon default did not extend tolling and tax debt not entitled to priority. "The Payment Plan terminated . . . when [debtor] stopped making the required monthly payments . . . . [T]here was no offer in compromise 'pending or in effect' during the 270 days prior to the bankruptcy filing. Thus, the tolling provision of section 507(a)(8)[(A)](ii)(I) is not triggered and . . . [claim] is not entitled to priority treatment under section 507(a)(8).").
In re Alicea, No. 10-10681 EAG, 2013 WL 5494448 (Bankr. D.P.R. Oct. 2, 2013) (Godoy) (On trustee's objection to stipulation between debtor and former spouse, mortgage payment was not a domestic support obligation when marriage was short with no children and decree contained no provision for payment of support by either spouse.).
In re Bliss, No. 12-51105, 2013 WL 3285834 (Bankr. W.D. La. June 27, 2013) (Summerhays) (Sales and use tax claim that included penalties for failure to timely pay was not entitled to priority.).
In re Digiacinto, No. BK-N-12-52663-btb, 2013 WL 3279159 (Bankr. D. Nev. June 26, 2013) (Beesley) (Claim filed by Nevada Division of Industrial Relations did not qualify as excise tax and was not entitled to priority.).
In re Caputo, No. 12-23166-BKC-AJC, 2013 WL 2701976 (Bankr. S.D. Fla. June 13, 2013) (Cristol), aff'd, No. 13-23542-CIV, 2014 WL 1600317 (S.D. Fla. Apr. 21, 2014) (Rosenbaum) ($200,000 "equitable distribution" was actually in the nature of support, was a domestic support obligation and the debt could not be treated as a general unsecured claim.).
In re Towler, 493 B.R. 239 (Bankr. D. Colo. May 28, 2013) (Brown) (Claim for overpayment of unemployment benefits was stipulated to be nondischargeable, but 50% reimbursement penalty under Colorado law was punitive; penalty not entitled to priority.).
In re Poole, No. BK12-81843-TJM, 2013 WL 1352313 (Bankr. D. Neb. Apr. 3, 2013) (Mahoney) (Payment of former spouse's attorney fees, a hold-harmless debt and $25,000 lump-sum "property settlement equalization payment" were all in nature of support and could not be treated as general unsecured claims in plan.).
Marshall v. Marshall (In re Marshall), 489 B.R. 630, 634-35 (Bankr. S.D. Ga. Apr. 3, 2013) (Davis) (Attorney's fees payable to former spouse's attorney are actually in nature of support and are a domestic support obligation entitled to priority, full payment and nondischargeability. "[P]re-BAPCPA precedent remains relevant. . . . [P]re-BAPCPA precedent overwhelmingly concludes that an award of attorney's fees does not lose its DSO character by being payable directly to the attorney.").
In re Ludwig, 502 B.R. 466 (Bankr. W.D. Va. Feb. 25, 2013) (Connelly) (Former spouse failed to show that assignment of joint debts to debtor was anything more than a quid-pro-quo division of property not entitled to priority.).
In re Larson, No. 12-37148, 2013 WL 551863 (Bankr. S.D. Tex. Feb. 12, 2013) (unpublished) (Isgur) (Debt to attorney who represented debtor in custody litigation is general unsecured claim, not domestic support obligation, because debtor cannot owe a DSO to his own attorney.).
In re Fitch, No. 12-21191, 2013 WL 305217 (Bankr. E.D. Ky. Jan. 25, 2013) (Wise) (Applying Long v. Calhoun (In re Calhoun), 715 F.2d 1103 (6th Cir. Aug. 30, 1983) (Kennedy, Martin, Nies), Fitzgerald v. Fitzgerald (In re Fitzgerald), 9 F.3d 517 (6th Cir. Nov. 10, 1993) (Kennedy, Norris, Lively), Sorah v. Sorah (In re Sorah), 163 F.3d 397 (6th Cir. Dec. 22, 1998) (Nelson, Clay, Gilman), and Kassicieh v. Battisti (In re Kassicieh), 482 B.R. 190 (B.A.P. 6th Cir. Nov. 27, 2012) (Emerson, Harris, McIvor), $700-per-month payment labeled as maintenance awarded because of debtor's financial irresponsibility during marriage was domestic support obligation entitled to priority under § 507(a)(1).).
In re Baker, No. 12-01090-8-SWH, 2012 WL 6186683 (Bankr. E.D.N.C. Dec. 12, 2012) (Humrickhouse) (Partial payment of second mortgage on home awarded to ex-spouse and attorney fee obligation were actually in the nature of support in light of income disparity, language of state court decree and impaired adult child living in home with ex-spouse.).
In re Peterson, No. 12-00793-8-SWH, 2012 WL 5985269 (Bankr. E.D.N.C. Nov. 29, 2012) (Humrickhouse) (Attorney fees awarded by state domestic relations court were in the nature of support and were entitled to priority and full payment as domestic support obligations; $5,000 award for mastopexy was not a DSO because not in the nature of support.).
In re Drengacz, No. 11-B-82339, 2012 WL 5467757 (Bankr. N.D. Ill. Nov. 9, 2012) (Barbosa) (Child support arrears, Tae Kwon Do tuition, school fees and dental bills are actually in the nature of support and entitled to priority; mortgage payment, taxes and expenses related to house would normally be entitled to priority, but ex-spouse failed to prove that those expenses were necessary to support.).
In re Hernandez, No. BK12-40770-TJM, 2012 WL 5457403 (Bankr. D. Neb. Nov. 8, 2012) (Mahoney) (Overpayment of child support owed to state is domestic support obligation entitled to priority and nondischargeability.).
In re O'Neal, No. 11-13535-WHD, 2012 WL 1940594 (Bankr. N.D. Ga. Apr. 13, 2012) (Drake) (Lump-sum payment after short marriage and no children indicates property settlement, not DSO.).
In re Tepera, No. 11-80477-G3-13, 2012 WL 439257, at *3 (Bankr. S.D. Tex. Feb. 9, 2012) (Paul) (Debtor's obligation to pay attorney fees for former spouse related to child custody dispute was domestic support obligation entitled to priority treatment. State court had awarded judgment of $125,000 for attorney fees and expenses, with interest. Court found "no support in the legislative history of BAPCPA that Congress intended to reduce protection for non-debtor former spouses.").
In re Bright, No. 11-10214, 2012 WL 346643 (Bankr. D. Kan. Feb. 1, 2012) (unpublished) (Nugent) (Obligation in divorce settlement agreement that debtor pay second mortgage on former marital residence was domestic support obligation entitled to priority that must be paid in full to confirm a plan under § 1322(a)(2).).
In re Osborn, BK11-41944-TJM, 2012 WL 246301, at *3 (Bankr. D. Neb. Jan. 26, 2012) (Mahoney) (Obligation to pay second mortgage that was refinanced in contemplation of divorce was actually in the nature of alimony, maintenance or support and was a priority claim that had to be paid in full. Mortgage allowed ex-spouse and three children to remain in marital home. "The BAPCPA amendments that added § 101(14A) and altered §§ 523(a)(5) and (15) did not change the standard for whether an obligation is in the nature of support. . . . '[T]he crucial question is what function did the parties intend the agreement to serve when they entered into it.'").
In re Rogowski, 462 B.R. 435 (Bankr. E.D.N.Y. Dec. 21, 2011) (Trust) (Citing Pauley v. Spong (In re Spong), 661 F.2d 6 (2d Cir. Sept. 25, 1981) (Lumbard, Mansfield, Van Graafeiland), that marital dissolution decree made award of fees directly to attorney rather than former spouse was not outcome determinative whether debt was a domestic support obligation under § 101(14A); because financial need is a prerequisite to award of attorney fees under New York law, debt was a DSO, was entitled to priority and full payment and would be nondischargeable at completion of payments.).
Lobato v. Quintana (In re Lobato), No. 11-1309 EEB, 2011 WL 5974674, at *3-*6 (Bankr. D. Colo. Nov. 29, 2011) (Brown) ($60,000 equitable share in retirement benefits was actually in the nature of support, was entitled to priority and full payment and was nondischargeable; interest at state statutory rate was part of domestic support obligation and was also priority and nondischargeable. "A domestic support obligation is entitled to first priority treatment pursuant to § 507(a)(1). To be confirmed, a Chapter 13 plan must pay any domestic support obligations in full. 11 U.S.C. § 1322(a)(2). On the other hand, property division obligations imposed in a divorce decree are not entitled to priority under § 507(a). As such, a Chapter 13 plan is not required to provide for their full payment and may treat them as any other general unsecured debt. . . . At the time of the divorce, Debtor was employed full-time . . . . Quintana, on the other hand, had no job and limited work experience. She spent the majority of her eighteen-year marriage as a homemaker. She had suffered from a serious brain injury that prevented her from retaining full time employment. . . . Quintana had no means to pay her expenses or to support herself in the future. . . . [T]his Court concludes that the divorce court intended the $60,000 obligation to support Quintana. . . . The Code's definition of 'domestic support obligation' provides that it includes 'interest that accrues on that debt as provided under applicable nonbankruptcy law.' 11 U.S.C. § 101([14A]). Colorado law provides for the payment of interest on unpaid maintenance or property divisions at the statutory rate . . . . That statutory rate is 8% compounded annually. . . . The full amount of the allowed claim is nondischargeable and entitled to first priority as a 'domestic support obligation.' 11 U.S.C. § 507(a)(1)(A).").
In re Krueger, 457 B.R. 465, 474-77 (Bankr. D.S.C. Sept. 19, 2011) (Burris) (Obligations to pay mortgage on former marital residence and ex-spouse's car note were both actually in the nature of support and were DSOs entitled to priority and full payment through plan. "[T]he Court looks to the interpretation of DSOs in case law involving the dischargeability of debts under § 523(a)(5), as enacted prior to the Bankruptcy Abuse Prevention and Consumer Protection Act . . . . [C]ourts must look beyond the language of the divorce decree to determine the intent of the parties at the time the separation agreement was executed. . . . [T]he mortgage obligation . . . was terminable upon Creditor cohabitating with a paramour for more than ninety (90) consecutive days. . . . This is a strong indication that the mortgage obligation was intended as support . . . . Debtor earned more and has a greater earning potential than Creditor at the time of the Separation Agreement. . . . Creditor needed the payments in order to maintain basic needs of housing and transportation.").
In re Cooke, 455 B.R. 503, 505 (Bankr. W.D. Va. July 26, 2011) (Krumm) (Debt declared nondischargeable under § 523(a)(15) in prior Chapter 7 case is not entitled to priority and is dischargeable in current Chapter 13 case because necessary element of § 523(a)(15) determination was that debt was not actually in the nature of alimony, maintenance or support, which excludes debt from domestic support obligation under § 101(14A). "[A]ll four elements of § 101(14A) must be satisfied in order to have a claim qualified as a domestic support obligation. Since Judge Hill has already found that the debt arising from the Judgment and Decree of Dissolution does not constitute alimony, maintenance, or support the Court finds that Ms. Knox fails to satisfy the second element required by § 101(14A) and therefore, cannot qualify her claim as a domestic support obligation. . . . '[A] former spouse's victory under § 523(a)(15) may become pyrrhic when the debtor follows a chapter 7 case with a chapter 13 case to deal with the nondischargeable debt.'").
In re Morgan, No. 10-67114-elp13, 2011 WL 1598065, at *2 (Bankr. D. Or. Apr. 26, 2011) (Perris) ($35,000 "equalizing judgment" payable in monthly installments of $350 was not actually support and was not entitled to priority under § 507(a) or to full payment under § 1322(a)(2). "In determining whether an obligation is a DSO entitled to priority under § 507(a), the court looks to the interpretation of support discussed in cases relating to the dischargeability of support under former § 523(a)(5). . . . When, as here, the obligation is created by a stipulated dissolution judgment, 'the intent of the parties at the time the settlement agreement is executed is dispositive.' . . . Factors to be considered . . . include 'whether the recipient spouse actually needed spousal support . . .' . . . . [W]hether there was an 'imbalance in the relative income of the parties' . . . . [W]hether the obligation terminates on the death or remarriage of the recipient spouse, and whether payments are made directly to the spouse in installments over a substantial period of time. . . . The labels the parties used for the payments may also provide evidence of the parties' intent.").
In re Nelson, 451 B.R. 918, 921-22 (Bankr. D. Or. Apr. 22, 2011) (Perris) (Hold-harmless provision with respect to mortgage on house that debtor received in divorce was not actually in the nature of alimony, maintenance or support, was not a DSO and was not entitled to priority. Marriage lasted only two years, there were no children, the obligation did not terminate at death or remarriage and decree otherwise ambiguously both waived support and stated that assumption of debt was support. "In determining whether an obligation is a DSO entitled to priority under § 507(a), the court looks to the interpretation of DSO discussed in cases relating to the dischargeability of support under former § 523(a)(5). . . . BAPCPA expanded the type of debt covered under § 523(a)(5), for example by including debts arising after the filing of the bankruptcy petition. . . . The principle that the obligation must actually be 'in the nature of alimony, maintenance, or support' remained the same. . . . [T]hat the obligation in this case was one to assume a debt and hold Odess harmless does not necessarily mean that the obligation is 'in the nature of support.' That question must be answered by considering the nature of the debt and looking at the circumstances surrounding the dissolution and the other provisions in the judgment.").
In re Dudding, No. 10-10557, 2011 WL 1167206 (Bankr. D. Vt. Mar. 29, 2011) (unpublished) (Brown) (Hold-harmless provision with respect to home mortgage was DSO based on life insurance requirements, disparate income at time of decree and actual support effect. Although court was not making a dischargeability determination, cases that analyze § 523(a)(5) guided the DSO determination.).
In re Alday, No. 10-11282-A-13F, 2011 WL 10723280 (Bankr. E.D. Cal. Mar. 15, 2011) (unpublished) (Rimbet) (Judgment debt of former spouse looked like a property settlement claim that would be dischargeable and not entitled to priority in a Chapter 13 case; however, objection to priority status was overruled without prejudice to renewing objection when former spouse was released from active military duty.).
In re Lautt, No. 10-30061, 2011 WL 570140, at *2-*3 & *2 n.2 (Bankr. D.N.D. Feb. 15, 2011) (Hill) (Obligation to pay debts of failed business was not in the nature of alimony, maintenance or support, was not a domestic support obligation and was not entitled to priority or full payment. "[T]he crucial question is the function the award was intended to serve. . . . [N]othing in the divorce decree indicates that Debtor's responsibility for the debt at issue had anything to do with alimony, maintenance, or support." In a note: "Section 101(14A) was added to the Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"). Pre-BAPCPA case law as to whether a debt is 'in the nature of support' within the meaning of section 523(a)(5) remains applicable to a determination as to whether a debt is 'in the nature of alimony, maintenance, or support' under section 101(14A).").
Pagels v. Pagels (In re Pagels), No. 10-07070-SCS, 2011 WL 577337, at *6-*8 (Bankr. E.D. Va. Feb. 9, 2011) (St. John) (Debtor's obligation to indemnify ex-spouse with respect to car payments was not actually in the nature of alimony, maintenance or support when decree contained a waiver of support, there was no condition with respect to death or remarriage and ex-spouse had disproportionately greater income at time of decree. Priority and nondischargeability of domestic support obligations after BAPCPA typically turns on whether the debt is actually in the nature of alimony, maintenance or support—a determination not materially changed by BAPCPA. "The superdischarge of § 1328(a) includes debts of a type described by § 523(a)(15) . . . . Section 523(a)(5) debts, on the other hand, are nondischargeable under § 1328(a). . . . [C]ase law construing the former Section 523(a)(5) is relevant and persuasive.").
In re Montgomery, 446 B.R. 475 (Bankr. D. Kan. Feb. 7, 2011) (Somers) (Three-year look-back in § 507(a)(8)(A)(i) is tolled for periods during which IRS was subject to stays and confirmed plan in prior bankruptcy cases plus one 90-day additional period under "suspension" paragraph BAPCPA added to § 507(a)(8); secured portion of IRS claim for income taxes is entitled to interest determined under nonbankruptcy law pursuant to § 511.), aff'd, No. 11-2107-CM, 2012 WL 2448928 (D. Kan. June 26, 2012) (Murguia).).
In re Clark, 441 B.R. 752 (Bankr. M.D.N.C. Feb. 4, 2011) (Waldrep) (Judgment for $104,500 payable at the rate of $800 a month "as a distributive award" was not a DSO entitled to priority.).
In re Rabideau, No. 09-72721, 2011 WL 165179, at *2 (Bankr. C.D. Ill. Jan. 19, 2011) (Gorman) ("Although BAPCPA provided marital and child support obligations with a new name and a statutory definition, the concept of making a distinction between marital or divorce obligations which are in the nature of support and those which are simply property settlement is not new. . . . If the Debtor's obligations to Mr. Smith are 'domestic support obligations,' the Debtor must propose to pay them in full through the Amended Plan, and the obligations will not be discharged unless they are paid in full." Claims for property taxes, mortgage deficiency judgment and attorney fees are not priority DSOs when marriage lasted a year, income disparity favored debtor and divorce decree said nothing about support.).
In re McPheron, No. 10-40861-TLS, 2010 WL 5173719 (Bankr. D. Neb. Dec. 15, 2010) (Saladino) (BAPCPA amendments to §§ 101(14A) and 523(a)(5) did not change standard for whether an obligation is in the nature of support. Income disparity at the time of bankruptcy is not relevant to whether a debt division in a divorce decree was intended to be in the nature of alimony, maintenance or support. "Equalization" payment in decree was division of debt and not a domestic support obligation.).
Selby v. Selby (In re Selby), No. 10-1078, 2010 WL 6494059 (Bankr. S.D. Ohio Dec. 15, 2010) (Perlman) (Hold-harmless provision in separation agreement with respect to rental properties conveyed to debtor is not actually in the nature of alimony, maintenance or support, is not a domestic support obligation under § 101(14A) and is dischargeable under § 523(a)(5). Citing pre-BAPCPA Sixth Circuit authority with respect to § 523(a)(5), hold-harmless provision was in real estate section of decree, there were separate provisions for spousal and child support and there were reciprocal hold-harmless provisions with respect to other property.).
In re Chesson, No. BK10-81145-TJM, 2010 WL 3386499 (Bankr. D. Neb. Aug. 26, 2010) (unpublished) (Mahoney) (Applying factors from pre-BAPCPA cases, obligation to contribute $50 per month toward student loans of former spouse was domestic support obligation for purposes of § 101(14A) based on income disparity at time of divorce; failure to treat obligation as DSO is fatal to confirmation.).
In re Bonito, No. 09-31888 (LMW), 2010 WL 3398396, at *4 (Bankr. D. Conn. Aug. 26, 2010) (unpublished) (Weil) (Applying § 523(a)(5) cases, pendente lite order of state court that requires debtor to make mortgage payments on residence used by almost ex-spouse and children is a domestic support obligation notwithstanding that mortgages are payable to third party. "Debtor's obligation in respect of the Mortgage Payments is 'owed to or recoverable by' Mrs. Bonito within the purview of Section 101(14A)(A) notwithstanding that the Mortgage debt runs to the mortgagee and not to Mrs. Bonito. . . . Mortgage Payments can constitute 'support' within the purview of Section 101(14A)(B) notwithstanding that the Mortgage debt runs to the mortgagee and not to Mrs. Bonito. . . . [T]he state court had no authority to make pendente lite awards other than with respect to support.").
In re Maser, No. BK 09-43079-TLS, 2010 WL 3386472, at *2-*4 (Bankr. D. Neb. Aug. 26, 2010) (unpublished) (Saladino) ("The BAPCPA amendments that added § 101(14A) and altered §§ 523(a)(5) and (15) did not change the standard for whether an obligation is in the nature of support. . . . '[T]he crucial question is what function did the parties intend the agreement to serve when they entered into it.' . . . The inescapable conclusion to be reached from the property settlement agreement and divorce decree is that the judgment was for property settlement, not support. The decree awards virtually all of the real estate and related assets to Debtor. . . . Ms. Maser received the judgment. . . . The monetary judgment . . . is in the nature of a property settlement and is not entitled to priority status.").
In re Haney, No. 10-10258-SSM, 2010 WL 3363270 (Bankr. E.D. Va. Aug. 24, 2010) (unpublished) (Mitchell) (Priority claims, including domestic support obligation, must be paid in full. Divorce decree established equitable lien on sale proceeds from former marital residence. Plan must provide for payment in full of marital obligations ordered to be paid from sale proceeds.).
Phegley v. Phegley (In re Phegley), No. 09-4296, 2010 WL 3081664 (Bankr. W.D. Mo. Aug. 3, 2010) (unpublished) (Dow) (BAPCPA added § 101(14A) and altered § 523(a)(5) but did not change the standard for whether an obligation is actually in the nature of support; $1,250 per month for maintenance and additional sum for attorney fees were nondischargeable DSOs based on traditional § 523(a)(5) factors, including income disparity and support needs of ex-spouse.), aff'd, 443 B.R. 154 (B.A.P. 8th Cir. Jan. 25, 2011) (Kressel, Saladino, Nail).).
In re Andrews, 434 B.R. 541, 547 (Bankr. W.D. Ark. July 12, 2010) (Mixon) (Former spouse's attorney fee that would be nondischargeable support under § 523(a)(5) was a domestic support obligation under § 101(14A) entitled to priority under § 507(a)(1). Divorce decree ordered debtor to pay former spouse's attorney fees. Although BAPCPA added definition of domestic support obligation, amendment did not substantially change rule in Eighth Circuit—Holiday v. Kline (In re Kline), 65 F.3d 749 (8th Cir. Sept. 12, 1995) (Bowman, Heaney, Arnold)—that award of fees payable to attorney is nondischargeable under § 523(a)(5) if award was intended as support for former spouse. Nondischargeable attorney fees are entitled to priority under § 507(a)(1). "[T]he fact that BAPCPA does not add attorneys to the expanded list of specific payees does not overrule Kline. Attorneys were not mentioned as payees in the pre-BAPCPA statute under which Kline was decided, but the Eighth Circuit ruled that a fee owed to an attorney could nevertheless be a nondischargeable support debt.").
In re Bowen, No. 09-06106-8-RDD, 2010 WL 1904466 (Bankr. E.D.N.C. May 10, 2010) (unpublished) (Doub) (State court award to former spouse of portion of debtor's pension benefits was actually in the nature of support, was a DSO that must be paid in full and is nondischargeable; automatic stay did not apply to entry of state court order 11 days after petition, and former spouse can seek QDRO without stay relief because of exception in § 362(b)(2)(A). State court intended percentage of retirement benefit to be in the nature of support based on former spouse's inability to meet her needs, disparity of income and periodic nature of the payment. Debtor listed QDRO as a DSO in the schedules, and this admission supported conclusion that QDRO was a DSO.).
In re DeBerry, 429 B.R. 532, 537-38 (Bankr. M.D.N.C. Apr. 30, 2010) (Waldrep) (Portion of marital separation agreement that required debtor to pay half of debts from sale of real property was in the nature of alimony, maintenance or support and was a DSO entitled to priority and full payment through the Chapter 13 plan. "If an obligation underlying the claim is deemed a DSO, pursuant to Section 523(a)(5), then the claim is entitled to priority treatment pursuant to Section 507(a)(1)(A), and any Chapter 13 plan must provide for its full payment pursuant to Section 1322(a)(2). . . . [W]hether Mr. DeBerry's obligation constitutes a DSO is a fact specific analysis. . . . Federal bankruptcy law, not state law, determines whether a debt is in the nature of support. . . . [C]ourts first look at the mutual or shared intent of the parties . . . . The labels attached to certain provisions in a separation agreement are not dispositive.").
In re Albrecht, No. 09-19109, 2010 WL 1758624 (Bankr. D. Mass. Apr. 29, 2010) (unpublished) (Hillman) (Determination whether obligations in a divorce decree are DSOs cannot be resolved without an evidentiary hearing.).
Bullock v. Bullock (In re Bullock), No. 09-50647, 2010 WL 1780274 (Bankr. S.D. Ind. Apr. 29, 2010) (Metz) (Obligation in settlement agreement that debtor would pay student loan debt after former spouse paid the debt down to $70,000 was not in the nature of alimony, maintenance or support for § 101(14A) purposes because former spouse was obligated to make substantial payments before the debtor's obligation was triggered; equalization payment in settlement agreement also was not in the nature of support because it was a sum certain, payment of which terminated on a date certain—not indicative of a support obligation. Neither debt was entitled to priority or nondischargeability.).
In re Wheeler, No. 09-41866-JJR-13, 2010 WL 503112, at *3-*4 (Bankr. N.D. Ala. Feb. 5, 2010) (Robinson) (Claim of Alabama Department of Human Resources for overpayment of food stamp benefits is a domestic support obligation under § 101(14A) that is entitled to priority under § 507(a)(1)(B) and to full payment under § 1322(a)(2); debtors perhaps could pay less than all of this debt under § 1322(a)(4), but balance would be nondischargeable at completion of payments under § 1328(a)(2) and § 523(a)(5). "The debt owing by the Debtors to DHR, a governmental unit, arose from food stamp benefits provided by DHR for the maintenance and support of the Debtors' children. Thus, under the plain meaning of Section 101(14A), the Court finds the Debtors' obligation to DHR is a claim for a DSO that is entitled to priority status under Section 507(a)(1). And because the claim is owed directly to DHR, a governmental unit, its priority status is determined under subparagraph (B) of Section 507(a)(1)." Arguably in dicta: "Section 1322(a)(2) requires that a chapter 13 plan must provide for full payment of all priority claims; but there is an exception. That exception, found in Section 1322(a)(4), permits less than full payment of a DSO claim if that claim is owing under subparagraph (B) of Section 507(a)(1)—most DSO claims owing to governmental units—'if the plan provides that all the debtor's projected disposable income for a 5-year period . . . will be applied to make payments under the plan.' . . . Sections 1328(a)(2) and 523(a)(5) exclude an unpaid DSO from the discharge otherwise granted to a debtor after completion of his chapter 13 plan. Unlike Section 1322(a), this exclusion from discharge makes no distinction between DSO claims falling under subparagraphs (A) and (B) of Section 507(a)(1). Thus, the Debtors in this case might consider amending their plan to increase the commitment period to 5 years and provide for full payment of DHR's claim. Otherwise they most likely will be faced with paying DHR's claim, possibly with interest, at the end of their plan.").
In re Grafton, 421 B.R. 765 (Bankr. N.D. Miss. Dec. 23, 2009) (Houston) (Determination of nondischargeability under § 523(a)(5) in prior bankruptcy case is preclusive that debt is DSO entitled to priority and full payment in subsequent Chapter 13 case.).
In re Trupp, No. 09-60555, 2009 WL 4800083, at *1-*2 (Bankr. S.D. Ill. Dec. 8, 2009) (Altenberger) (Child support claim filed by state of Arizona on behalf of ex-spouse was mostly § 507(a)(1)(A) priority claim that must be paid in full under § 1322(a)(2), not an assigned claim that might be paid less than in full under §§ 507(a)(1)(B) and 1322(a)(4). Arizona Department of Economic Security filed proof of claim for $106,607.70 for prepetition child support arrearage, listing the creditor as "State of Arizona ex rel. The Department of Economic Security (Sheila Jensen)." Attachments to proof of claim indicated that $101,477 was owed to former wife and custodial parent of debtor's children. Balance was owed to state as an assignment of child support that Sheila Jensen received from the state. Plan proposed to pay state $3,600 on its assigned claim and made no provision for any payment of claim owed to Sheila Jensen. "Section 507(a)(1)(A) of the Bankruptcy Code confers priority status on domestic support obligations owed to a spouse, former spouse or child of the debtor . . . . Claims for such support may be filed either by the individual to whom the obligation is owed or by a governmental entity on their behalf. . . . Similarly, priority is also given to domestic support obligations that have either been assigned or which are owed directly to a government unit. 11 U.S.C. § 507(a)(1)(B). . . . In the instant case, neither the State nor Ms. Jensen has expressly agreed to accept less than full payment of their priority claims. . . . [I]t is clear that the State is objecting to the plan on her behalf. . . . [Section] 507(a)(1)(A) expressly permits a governmental entity to file a proof of claim on behalf of a domestic support claimant. Here, the claim in question was filed on behalf of both the State and Sheila Jensen. . . . Ms. Jensen has objected to the plan through the State of Arizona.").
In re Halbrook, No. 09-40910 TG, 2009 WL 2824557 (Bankr. N.D. Cal. Aug. 25, 2009) (Tchaikovsky) (Prepetition sanction awarded former spouse based on debtor's misconduct was general unsecured claim, not in the nature of support under § 523(a)(5).).
Shepard v. Hood (In re Shepard), No. 08-3036, 2009 WL 1658124 (Bankr. W.D. Mo. June 12, 2009) (Venters) (County assisted former spouse in collecting domestic support obligation but was not assignee for purposes of §§ 507(b)(1)(B) and 1322(a)(4).).
In re Tinnell, No. BK09-80160-TLS, 2009 WL 1664581 (Bankr. D. Neb. June 12, 2009) (Saladino) (Nebraska Department of Health & Human Services failed to prove claim for domestic support obligation when it could not show that it followed its own administrative procedures for recovering reimbursable prescription costs.).
In re LaGrange, No. 08-82468-TLS, 2009 WL 1484623, at *1 (Bankr. D. Neb. May 27, 2009) (Saladino) (State court order "to equalize . . . property settlement" was not actually in the nature of alimony, maintenance or support, was not a domestic support obligation and was not entitled to priority in Chapter 13 case.).
In re Westerfield, 403 B.R. 545 (Bankr. E.D. Tenn. Mar. 13, 2009) (Stinnett) (Obligation to pay mortgage debt on former marital residence and to hold former spouse harmless was DSO entitled to priority and full payment.).
In re Charlton, No. 07-22136-13, 2008 WL 5539789 (Bankr. D. Kan. Dec. 3, 2008) (Somers) (Decisions interpreting § 523(a)(5) guide whether divorce decree created DSOs under § 101(14A) entitled to priority under § 507(a)(1) and full payment under § 1322(a)(2); obligation to pay tax claim did not function as support for higher-paid ex-spouse but was simply division of debts.).
In re Bolar, No. 08-10350-WHD, 2008 WL 7880900 (Bankr. N.D. Ga. Nov. 5, 2008) (Drake) ($150-per-month obligation in divorce settlement agreement was not a domestic support obligation for purposes of § 101(14A). Obligation continued for a set period of time, was not related to balancing disparate incomes and appeared intended by the parties to compensate former spouse for loss of equity in marital home.).
In re Carter, Nos. 08-10136, 08-10512, 2008 WL 5045912 (Bankr. M.D. Ala. Sept. 30, 2008) (unpublished) (Williams) (State's claim for genetic testing costs to determine paternity and obligation to pay child support is DSO entitled to priority under § 507(a)(1)(B).).
In re Rose, No. 08-30051, 2008 WL 4205364 (Bankr. E.D. Tenn. Sept. 10, 2008) (Stair) (Guardian ad litem fee awarded to attorney that represented debtor's minor child is domestic support obligation entitled to priority under § 507(a)(1).).
In re Harris, No. BK08-81330-TLS, 2008 WL 4020608, at *2-*3 (Bankr. D. Neb. Aug. 26, 2008) (Saladino) (Obligation in divorce decree to sell a timeshare interest, pay a list of marital obligations from the proceeds and then remit excess to the debtor was a property settlement provision that is dischargeable and not entitled to priority or full payment in a Chapter 13 case. "The BAPCPA amendments that added § 101(14A) and altered § 523(a)(5) and (15) did not change the standard for whether an obligation is in the nature of support. . . . As far as the time-share is concerned, the district court judge simply ordered that it be sold, the balance owed on it to be paid from the proceeds, and various other debts to be paid from the time-share proceeds. The balance of the proceeds from the time-share sale were awarded to Debtor. Accordingly, it appears to this Court that the provisions regarding the sale of the time-share and the payment of the time-share indebtedness . . . are simply for purposes of allocating the marital debt and assets; that is, property settlement and not support.").
In re Blad, No. 07-12436, 2008 WL 3979468 (Bankr. D. Kan. Aug. 22, 2008) (Nugent) (Notwithstanding redefinition of domestic support obligation in § 101(14A), BAPCPA did not change rules for determining whether obligation to former spouse was actually in the nature of maintenance or support. Hold harmless provision in divorce decree was property division not entitled to priority that may be discharged upon completion of payments under § 1328(a).).
In re Alston, No. 07-02100-5-ATS, 2008 WL 3981811 (Bankr. E.D.N.C. Aug. 22, 2008) (Small) (Obligation to pay credit card found in "property settlement" section of divorce decree is not priority support; however, plan that pays nothing to unsecured creditors when debtor is keeping expensive car is not fair to ex-spouse and is not confirmable for lack of good faith.).
In re Boller, 399 B.R. 569 (Bankr. E.D. Tenn. June 27, 2008) (Stinnett) (Applying Long v. Calhoun (In re Calhoun), 715 F.2d 1103 (6th Cir. 1983), Fitzgerald v. Fitzgerald (In re Fitzgerald), 9 F.3d 517 (6th Cir. 1993), and Sorah v. Sorah (In re Sorah), 163 F.3d 397 (6th Cir. 1998), when divorce decree expressly waived support and no other evidence of intent is offered, obligations created by decree are not in the nature of alimony or support, are not DSOs and are not entitled to priority or full payment through a Chapter 13 plan.).
In re Braun, No. BK08-80400-TJM, 2008 WL 2130313 (Bankr. D. Neb. May 15, 2008) (Saladino) (Hold-harmless obligation in property settlement agreement with respect to home mortgage is a domestic support obligation entitled to priority and full payment notwithstanding that debt was refinanced after divorce and before Chapter 13 filing; hold-harmless obligation between the spouses was actually in the nature of support.).
In re Williams, 387 B.R. 211 (Bankr. N.D. Ill. Mar. 17, 2008) (Schmetterer) (Claim filed by Illinois Department of Health Care and Family Services on behalf of custodial parent is first priority domestic support obligation under § 507(a)(1)(A) entitled to full payment under § 1322(a)(2) and does not fall within exception to full payment in § 1322(a)(4) for priority claims described in § 507(a)(1)(B). Custodial parent did not receive public aid from IDHFS, and claim was not to repay IDHFS for support. Plan that treated IDHFS claim as a § 507(a)(1)(B) claim—with 10% payment and balance to survive discharge—could not be confirmed. DSOs owed directly to custodial parent are provided first priority in § 507(a)(1)(A). "The Department's Claim was not filed for a debt due to it whether by assignment or otherwise. Rather, the Department filed the claim on behalf of the custodial parent pursuant to § 507(a)(1)(A) and, therefore, § 1322(a)(4) is not applicable.").
In re White, No. 07-03870-NPO, 2008 WL 682422, at *2 (Bankr. S.D. Miss. Mar. 7, 2008) (Olack) (Deficiency notice issued by clerk of court and show cause order are dismissed with respect to debtor's failure to schedule a domestic support obligation when debtor did not owe a prepetition, matured DSO; postpetition, unmatured DSO is not an allowable claim, is not entitled to priority, is not paid through Chapter 13 plan and need not be scheduled. Debtor disclosed monthly DSO expense on Schedule J but did not list a DSO recipient as a creditor. Clerk of court issued a deficiency notice. When debtor did not satisfy deficiency notice, court issued order to show cause why sanctions should not be imposed on debtor's counsel. "If, at the time of the bankruptcy filing, a debtor owes a matured DSO, the DSO recipient may assert a claim for the DSO amount which was due prepetition. . . . [M]atured DSO claims are elevated to first priority payment in accordance with § 507(a)(1)(A) . . . . [A]n allowed unsecured DSO claim is entitled to first priority payment through the chapter 13 plan. In that situation, a DSO recipient is entitled to payment through the chapter 13 plan, and should be listed as a creditor in the debtor's bankruptcy schedules. . . . If a debtor . . . will owe unmatured, postpetition DSOs, a different situation arises. . . . [Section] 502(b) specifically mandates the disallowance of a claim to the extent 'such claim is for a debt that is unmatured on the date of the filing of the petition and that is excepted from discharge under section 523(a)(5) of this title.' . . . A claim for a DSO is excepted from discharge under §§ 523(a)(5) and 1328(a). Accordingly, § 502(b)(5) prohibits the inclusion in a chapter 13 plan of a provision for payment of a claim for postpetition DSOs.").
In re Johnson, 397 B.R. 289, 295-97 (Bankr. M.D.N.C. Feb. 27, 2008) (Waldrep) (Plan that proposed no payment on a mortgage cannot be confirmed because in prepetition divorce proceeding, debtor agreed to hold ex-spouse harmless with respect to mortgage and mortgage was in nature of maintenance or support for ex-spouse and debtor's child; hold-harmless provision was nondischargeable debt under § 523(a)(5) and was entitled to priority and full payment through plan under § 1322(a)(2). "In cases under Chapters 7, 11, and 12 of the Bankruptcy Code, the distinctions between DSOs, governed by Section 523(a)(5), and other types of post-marital obligations, governed by Section 523(a)(15), are immaterial because both types of debts are nondischargeable and must be paid in full. . . . But in Chapter 13 cases, an important distinction is drawn. DSOs may not be discharged in a Chapter 13 plan. . . . [O]ther post-marital obligations, including property settlements, are [dischargeable] in Chapter 13. . . . If an obligation is deemed a DSO, pursuant to Section 523(a)(5), then the obligation is a priority debt, pursuant to Section 507(a)(1)(A), and the Chapter 13 plan must provide for its full payment, pursuant to Section 1322(a)(2). . . . [C]ase law construing the former Section 523(a)(5) is relevant and persuasive. . . . [A]n obligation that is essential to enable a party to maintain basic necessities or to protect a residence constitutes a nondischargeable support obligation.").
In re Sprouse, No. BK07-81752, 2008 WL 544999, at *3 (Bankr. D. Neb. Feb. 25, 2008) (Mahoney) (Divorce decree that split a debt between debtor and ex-spouse was more in nature of property settlement than support and did not create domestic support obligation for purposes of § 523(a)(5) or § 1322(a)(2); debt was not entitled to priority, did not have to be paid in full through plan and would be dischargeable at completion of payments. "[T]he debtor's obligation arising from the language . . . is simply a contract between the debtor and her former husband with regard to a property settlement agreement incorporated into the Dissolution f Marriage Decree. It is not in the nature of support, but is the type of debt dealt with by 11 U.S.C. § 523(a)(15) which is dischargeable in a Chapter 13 case, assuming the debtor obtains confirmation of a Chapter 13 plan and completes payments under such plan.").
In re Van Dermark, No. 06-35493-BJH-13, 2008 WL 319107 (Bankr. N.D. Tex. Feb. 1, 2008) (Houser) (Applying Georgia law, divorce decree that required debtor to pay law firm that represented ex-spouse gave ex-spouse a priority claim under § 507(a)(1) that was independent of any assignment by law firm.).
In re Sewell, No. 07-00777-5-ATS, 2008 WL 8130029 (Bankr. E.D.N.C. Jan. 3, 2008) (Small) (Citing factors from Tilley v. Jessee, 789 F.2d 1074 (4th Cir. May 5, 1986) (Hall, Wilkinson, Michael), obligation to pay former spouse $19,000 for second mortgage debt was not a DSO when incomes of parties were similar and obligation did not terminate on death of former spouse.).
In re Hernandez, No. 07-40470-R, 2007 WL 3998301, at *2-*3 (Bankr. E.D. Tex. Nov. 15, 2007) (Rhoades) (Postpetition interest that accrues on a domestic support obligation is not entitled to priority under § 507(a)(1)(A). "[N]ew § 507(a)(1)(A), by its terms, grants first priority to certain domestic support obligations that are owed or recoverable by certain parties as of the date of the filing of the petition—but it does not, by it terms, grant priority to interest that accrues on a child support arrearage after the filing of the petition. Since the interest in question in this case was not owed when the Debtors filed their petition, it does not have priority under § 507(a)(1)(A) of the Bankruptcy Code. Furthermore, priority under § 507(a)(1) is limited to allowed unsecured claims. Section 502(b) lists the types of claims that may not be allowed by this Court in determining the amount of a claim as of the petition date. Section 502(b)(2) specifically mandates that claims for unmatured interest be disallowed. Additionally, § 502(b)(5) mandates the disallowance of a claim to the extent 'such claim is for a debt that is unmatured on the date of the filing of the petition and that is excepted from discharge under section 523(a)(5) of this title.' . . . Since any interest accruing on a child support arrearage after the filing of the petition is post-petition interest, and, therefore, unmatured, and since a claim for a domestic support obligation is excepted from discharge under §§ 523(a)(5) and 1328(a) of the Bankruptcy Code, the Attorney General's claim for post-petition interest would not qualify as an allowed claim under § 502(b), and in turn, would not be entitled to § 507(a)(1) priority.").
In re Poole, 383 B.R. 308, 312-16 (Bankr. D.S.C. Oct. 18, 2007) (Burris) (Divorce decree requiring debtor to hold ex-spouse harmless with respect to certain debts and requiring debtor to pay ex-spouse's attorney fees was debt and property settlement not entitled to priority or full payment through plan. New DSO definition in § 101(14A) is similar to text of former § 523(a)(5) but not identical: "Since the language of the new definition includes debts 'owed to or recoverable by' a spouse, debts to be paid directly to third parties such as the attorney's fees and credit card payments would not necessarily be excluded if they are enforceable and recoverable by the spouse via further proceedings in the Family Court. . . . There is no evidence that at the time the divorce decree was entered both parties intended for the obligations to provide for Ms. Poole's necessities from Mr. Poole's income nor any evidence for the Court to conclude that the agreement was intended to reduce any disparity in the parties' earning power. . . . [T]he divorce decree includes an allocation of debt and property settlement only. While the result of the payments ordered in the divorce decree certainly would improve Ms. Poole's financial condition, there is insufficient evidence to indicate that the intent was to fashion an award of alimony, maintenance or support under any applicable law.").
In re Lepley, No. 07-20344, 2007 WL 2669128 (Bankr. W.D. Mo. Sept. 6, 2007) (Applying factors typically used in § 523(a)(5) cases, divorce decree characterized payment as property division, neither party requested support in the decree and there was no evidence that debt was created to provide for former spouse's everyday needs; debt was ordinary unsecured claim, not priority debt, and need not be paid in full through plan.).
In re Van Nice, No. 07-60080-13, 2007 WL 2178069 (Bankr. D. Mont. July 26, 2007) (Although divorce decree allowed debtor to make "best effort" to pay college expenses of children, those expenses became DSOs under broad new definition in § 101(14A) and are priority debts that must be paid in full.).
In re Knox, No. 07-11082, 2007 WL 1541957, at *3 (Bankr. E.D. Tenn. May 23, 2007) (Allocation of debts in marital dissolution agreement was not in nature of alimony, maintenance or support and was not priority debt that had to be paid in full to confirm Chapter 13 plan. Marital dissolution agreement required debtor to pay credit card debts. Agreement specifically referred to 11 U.S.C. § 523(a)(15) and provided that credit card debts would be nondischargeable if either spouse filed bankruptcy. Citing Long v. Calhoun (In re Calhoun), 715 F.2d 1103 (6th Cir. 1983), Fitzgerald v. Fitzgerald (In re Fitzgerald), 9 F.3d 517 (6th Cir. 1993), and Sorah v. Sorah, 163 F.3d 397 (6th Cir. 1998): "The marital dissolution agreement in this case did not designate the obligations in question as support. Accordingly, the Sorah analysis has no application here, and the court must proceed with the Calhoun analysis. . . . [T]he marital dissolution agreement indicates that the allocation of debts was intended as 'part of a fair and equitable division of the parties' assets and liabilities' rather than as part of an award of support. . . . The court thus finds that the state court and the parties did not intend to create an obligation to provide support. Accordingly, the court need proceed no further. . . . [A]lthough debts to a former spouse (incurred in the course of a divorce proceeding) that are not 'domestic support obligations' are nondischargeable in a Chapter 7 case, 11 U.S.C. § 523(a)(15), such debts are fully dischargeable in a Chapter 13 case. . . . Thus, the parties' agreement that § 523(a)(15) applies to the allocation of debts—even if it were enforceable—is of no relevance.").
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