629 B.R. 1
Bankr. D.N.H.2021Background
- In December 2015 a New Hampshire state court appointed Rebecca S. McBeath, Esq. as guardian ad litem for the debtor’s minor children and ordered the debtor to pay 75% of guardian-ad-litem fees; McBeath seeks $4,076.25.
- Debtor filed chapter 7 in 2018; a proof of claim was filed on McBeath’s behalf under Fed. R. Bankr. P. 3004 asserting priority as a domestic support obligation (DSO) under 11 U.S.C. § 507(a)(1)(A)/(B).
- The chapter 7 trustee objected to priority treatment and argued the claim should be an ordinary unsecured claim; she did not present substantive evidence.
- McBeath relied on authorities (e.g., In re Kassicieh) that treat guardian-ad-litem fees as in the nature of support and therefore nondischargeable/priority.
- The bankruptcy court applied § 101(14A)’s conjunctive definition of DSO, found the fee debt was established by court order and not assigned (satisfying subsections (C) and (D)), and concluded the fees were “in the nature of support.”
- The court held McBeath failed subsection (A) because a guardian ad litem is not a “legal guardian” (nor spouse/child/responsible relative/governmental unit) under the plain meaning and New Hampshire law; therefore the claim is allowed as an unsecured nonpriority claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether guardian-ad-litem fees are a domestic support obligation entitled to priority under § 507(a)(1) | McBeath: fees arise from court order protecting children and are "in the nature of support," so qualify as DSO | Trustee: claim is not a DSO; should be general unsecured | Court: fees are in the nature of support but priority requires satisfying all § 101(14A) subsections; overall DSO status not met because payee requirement fails; claim is unsecured nonpriority |
| Whether a guardian ad litem is an enumerated payee ("legal guardian" or other person) under § 101(14A)(A) | McBeath: guardian-ad-litem functions to protect children and should be recoverable as a DSO payee | Trustee: guardian ad litem is not among enumerated payees in § 101(14A)(A) | Court: guardian ad litem is distinct from a "legal guardian" under ordinary and New Hampshire law; subsection (A) not satisfied; claim not priority |
Key Cases Cited
- In re Kassicieh, 482 B.R. 190 (B.A.P. 6th Cir. 2012) (held guardian-ad-litem fees can constitute domestic support obligations)
- Smith v. Pritchett (In re Smith), 586 F.3d 69 (1st Cir. 2009) (determination of DSO is a question of federal law)
- In re FBI Distribution Corp., 330 F.3d 36 (1st Cir. 2003) (party seeking priority bears the burden to prove entitlement)
- United States v. Ron Pair Enters., Inc., 489 U.S. 235 (1989) (apply plain meaning of statute when unambiguous)