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473 B.R. 185
Bankr. E.D. Ky.
2012
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Background

  • Debtor Timothy Micek owes Dodd & Dodd Attorneys, PLLC $28,969.06 for ex-wife Lisbeth Micek’s divorce fees; Dodd seeks priority Domestic Support Obligation (DSO).
  • Trustee objects to DSO classification, arguing Dodd is not an eligible payee, the fees are not support, and priority is improper due to ongoing Dodd Adversary and levy actions.
  • Divorce Court ordered Micek to pay Dodd $39,000 in fees based on debtor’s “position of financial superiority”; a later order denied relief from that obligation.
  • Lisbeth Micek filed a Chapter 7, listed Dodd’s claim as unsecured non-priority, and did not schedule Dodd’s claim; her case proceeded to discharge.
  • Dodd filed an adversary proceeding to determine that Lisbeth Micek’s discharge did not bar Dodd’s fee lien in maintenance payments; the matters are intertwined with the Dodd Adversary.
  • The Amended Opinion concludes all attorney fees are prepetition and resolves the Section 507(a)(1) objection; the Dodd Adversary is reassigned for related proceedings.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Is the Dodd debt a Domestic Support Obligation under §101(14A)? Dodd argues fees are DSO because they are support-like and payable in connection with divorce. Trustee contends the fees are to a third party, not to a listed payee, and thus not a DSO. Debt can be in the nature of support under federal bankruptcy law.
Is Dodd an eligible DSO recipient/payee under §101(14A)? Dodd maintains qualified as a former-spouse recipient; pre-BAPCPA law supports eligibility. Trustee argues ineligibility since payee is a third party (attorney). Court agrees approach focusing on nature of debt applies; Dodd can be an eligible recipient under the governing framework.
Are the attorney fees in the nature of support? Attorney fees in divorce actions inherently provide support due to financial disparity. Fees are not labeled as support in the Divorce Court orders; may not be support. Fees can be treated as the nature of support under the controlling framework.
Should Dodd receive priority given ex-wife’s bankruptcy and Dodd Adversary actions? Priority is warranted to protect Dodd’s claim and prevent prejudice to former spouse’s creditors. Priority disputed due to potential levy on maintenance and conflicts of interest. Court resolves the Section 507(a)(1) objection in favor of priority for prepetition fees; reassignment of Dodd Adversary proceedings.
Does joint liability alter the analysis? Joint liability is not essential if the debt is in the nature of support. Some analyses require joint liability to maintain priority. Joint-liability issue is irrelevant to this decision; focus on the debt’s nature as support.

Key Cases Cited

  • In re Kassicieh, 425 B.R. 467 (Bankr.S.D.Ohio 2010) (three views on third-party fees in DSO context; supports nature-of-debt approach)
  • In re Kassicieh, 425 B.R. 474 (Bankr.S.D.Ohio 2010) (collecting authorities; supports pre-BAPCPA view of debt’s nature)
  • In re Gentilini, 365 B.R. 251 (Bankr.S.D.S. Fla. 2007) (joint-liability approach and nature-of-debt approach in determining DSO)
  • In re Johnson, 384 B.R. 763 (Bankr.E.D.Mich. 2008) (debt’s nature controls dischargeability for third-party payees)
  • In re Calhoun, 715 F.2d 1103 (6th Cir. 1983) (payments in the nature of support need not be to the spouse/dependent for nondischargeability)
  • In re White, 851 F.2d 170 (6th Cir. 1988) (example of collusion concerns in bankruptcy matters involving domestic relations)
  • Reissig v. Gruber, 436 B.R. 39 (Bankr.N.D.Ohio 2010) (commentary on federal-law approach to DSOs)
  • In re Clark, 441 B.R. 752 (Bankr.M.D.N.C. 2011) (pre-BAPCPA analyses of DSOs and third-party payees)
  • In re Johnson, 397 B.R. 289 (Bankr.M.D.N.C. 2008) (discusses whether the debtor’s spouse remains liable for debt)
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Case Details

Case Name: In re Micek
Court Name: United States Bankruptcy Court, E.D. Kentucky
Date Published: May 21, 2012
Citations: 473 B.R. 185; 2012 WL 1854280; 2012 Bankr. LEXIS 2339; No. 09-52014
Docket Number: No. 09-52014
Court Abbreviation: Bankr. E.D. Ky.
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