462 B.R. 435
Bankr. E.D.N.Y.2011Background
- Debtor Marek Rogowski’s Chapter 13 case involves a prepetition divorce judgment requiring Debtor to pay his ex-spouse CER’s matrimonial attorney’s fees.
- Schonfeld & Goldring, counsel for CER, filed a proof of claim for $32,950 asserting priority as a domestic support obligation (DSO).
- Debtor objects to priority, arguing the fees were awarded to CER’s counsel and not to CER or a child, and were not alimony or support.
- Divorce judgment dated Feb. 23, 2010 directed Debtor to pay CER’s various debts, including CER’s matrimonial attorney’s fees, and Debtor filed Chapter 13 on Apr. 8, 2010.
- The court held the fees are a DSO under § 101(14A), entitled to administrative priority under § 507(a)(1), and nondischargeable under §§ 523(a)(5) and 1328(a)(2).
- State court found CER financially needy and awarded fees under New York Domestic Relations Law § 237, supporting treatement as alimony-like support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Schonfeld’s claim qualifies as a DSO despite payee not being the debtor’s spouse | Rogowski argues the payee is not CER or a dependent. | Schonfeld contends the award is a DSO under § 101(14A) despite payee name. | Yes; payee name does not control DSO status. |
| Whether the fees are in the nature of alimony, maintenance, or support | Rogowski asserts the award is equitable distribution, not support. | Schonfeld contends the NY award is for CER’s financial support and thus DSO. | Yes; NY-law-based award is in the nature of support. |
| Whether the claim has administrative priority under § 507(a)(1) and is nondischargeable under § 523(a)(5) and § 1328(a)(2) | Rogowski challenges priority and dischargeability status. | Schonfeld argues the claim is a DSO with priority and nondischargeability. | Yes; the claim has administrative priority and is nondischargeable. |
Key Cases Cited
- Spong v. Spong, 661 F.2d 6 (2d Cir. 1981) (emphasizes substance over payee in non-dischargeability)
- Golio, 393 B.R. 56 (Bankr.S.D.N.Y. 2008) (awards to ex-spouse’s counsel deemed support-type obligations)
- Tarone, 434 B.R. 41 (Bankr.E.D.N.Y. 2010) (post-BAPCPA view on DSOs and dischargeability in chapter 7)
- Andrews, 434 B.R. 541 (Bankr.W.D. Ark. 2010) (two-part test for DSO status of pre-petition attorney’s fees)
- Schenkein, 2010 WL 3219464 (Bankr.S.D.N.Y. 2010) (post-BAPCPA discussion cited but not in official reporter)
- Spong v. Spong (Second Circuit), 1 urrently cited above () ()