Zimmermann v. Hying (In re Hying)
477 B.R. 731
Bankr. E.D. Wis.2012Background
- Hying and Kimberly Niemi (formerly Hying) divorced in 2007 with one minor child Jillian.
- Multiple contempt proceedings in Wisconsin courts resulted in sanctions requiring Hying to pay Kimberly’s attorney fees directly to Zimmermann (plaintiff).
- Sanction amounts: $1,000 (June 18, 2010), $7,421.75 (March 30, 2011) which included the $1,000, and $1,425 (February 21, 2011) for a total of $8,846.75.
- Hying filed a Chapter 7 bankruptcy on March 17, 2011; the plaintiff’s claim for the attorney fees was listed as a debt.
- This adversary proceeding (filed July 11, 2011) seeks nondischargeability of that debt.
- Judge Shapiro granted summary judgment finding the debt nondischargeable under 523(a)(5), with alternative 523(a)(15) basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the debt a domestic support obligation under 523(a)(5)? | Zimmermann argues the fees are in the nature of support under 101(14A). | Hying contends the debt is not owed to a spouse/former spouse or child, hence not a domestic support obligation. | Yes; debt is nondischargeable under 523(a)(5). |
| If not, is the debt nondischargeable under 523(a)(15)? | Even if not a 523(a)(5) obligation, the fees arise from a divorce and are nondischargeable under 523(a)(15). | Tarone-type reasoning would apply; argue against broad nondischargeability. | Yes; debt is also nondischargeable under 523(a)(15). |
Key Cases Cited
- In re Papi, 427 B.R. 457 (Bankr.N.D.Ill.2010) (attorney’s fees payable to attorney can be nondischargeable under 523(a)(5))
- In re Palomino, 355 B.R. 349 (Bankr.S.D.Fla.2006) (fees awarded to attorney related to dissolution stay nondischargeable)
- In re Johnson, Bankr.Lexis 1055 (Bankr.D.Mass.2011) (majority rule: attorney’s fees awarded to attorney can be nondischargeable)
- In re Sullivan, 423 B.R. 881 (Bankr.E.D.Mo.2010) (debt in the nature of support if related to child welfare)
- In re Rios, 901 F.2d 71 (7th Cir.1990) (requires court-ordered payment as part of alimony/child support for non-dischargeability)
- In re Tarone, 434 B.R. 41 (Bankr.E.D.N.Y.2010) (under BAPCPA, debts to former spouse/child from divorce are nondischargeable)
- In re Crosswhite, 148 F.3d 879 (7th Cir.1998) (policy of debtor protection tempered when arising from divorce)
- In re Tadisch, 220 B.R. 371 (Bankr.E.D.Wis.1998) (caution against collateral attack on state court judgments in bankruptcy)
- In re Lesh, 253 B.R. 849 (Bankr.N.D.Ohio 2000) (avoid overrule of state domestic relations decisions in bankruptcy)