Background

• Joseph M. Gately (debtor) and Joni Gately were divorced; family court issued a Ruling addressing spousal support and awarded Joni attorney’s fees of $3,500 to be paid directly to her counsel, Brian Moore.
• Debtor did not pay; sheriff levied $3,777.90 from debtor’s wages; debtor filed Chapter 13 and claimed a wildcard exemption on the levied funds.
• Debtor moved under 11 U.S.C. § 522(f)(1) to avoid the judicial lien securing the fee award; Joni opposed, arguing the fee award was a domestic support obligation under § 523(a)(5) and thus not avoidable.
• Bankruptcy court found the attorney’s fee award was in the nature of spousal support (domestic support obligation) and denied the motion to avoid lien; debtor appealed.
• The BAP reviewed de novo whether the lien was avoidable and for clear error the factual determination whether the debt was a domestic support obligation, and affirmed the bankruptcy court’s denial of the avoidance motion.

Issues

Key Cases Cited

• McCoy v. Kuiken (In re Kuiken), 484 B.R. 766 (9th Cir. BAP) (standard of review for lien avoidance under § 522(f)(1))
• Culver, LLC v. Chiu (In re Chiu), 304 F.3d 905 (9th Cir. 2002) (elements for avoiding a judicial lien under § 522(f)(1))
• Beaupied v. Chang (In re Chang), 163 F.3d 1138 (9th Cir. 1998) (factors for characterizing obligations as domestic support)
• Gionis v. Wayne (In re Gionis), 92 F.3d 1192 (9th Cir. 1996) (attorney’s fees in dissolution may be non-dischargeable as support)
• TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820 (9th Cir. 2011) (clear error standard explained)
• Rivera v. Orange Cty. Prob. Dep’t, 832 F.3d 1103 (9th Cir. 2016) (discussion of § 101(14A) definition of domestic support obligation)
• Bendetti v. Gunness (In re Gunness), 505 B.R. 1 (9th Cir. BAP) (standing and analysis for fee awards as support)