Lakeman v. Weed (In re Weed)Lakeman v. Weed (In re Weed)
ORDER GRANTING SUMMARY JUDGMENT TO PLAINTIFF
This adversary proceeding for determination of dischargeability of debt came before the Court on August 28, 2012, on the Plaintiffs motion for summary judgment and on the Defendant’s responsive motion, styled as one for dismissal. The Plaintiff (“Lakeman”) appeared by her attorney, Erich Hartmann. The Defendant (“Weed”) appeared pro se. On the record made for the hearing, the Court ruled that Lakeman was entitled to a determination of nondischargeability on one of her pleaded theories, but not on the other. So, Lakeman’s motion for summary judgment is granted in part; and Weed’s responsive motion is granted in part. Judgment will be entered in favor of Lakeman, determining that Weed’s debt to her is excepted from discharge under Chapter 7. The following memorandum is entered pursuant to
Lakeman and Weed are the parents of a minor child, ATW, who is now eight years old. Lakeman and Weed have never been married. Weed acknowledges that he is the father of ATW.
The relevant history has an international dimension. Lakeman is a citizen and resident of Canada. Weed is a citizen and resident of the United States. In 2010, Lakeman commenced a proceeding in the United States District Court for this district under the Hague Convention on the Civil Aspects of International Child Abduction, art. 2, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed.Reg. 10,494 (Mar. 26, 1986) (“the Hague Convention”), as implemented in federal statute .by the International Child Abduction Remedies Act,
Lakeman requested relief under the Hague Convention, on the grounds that Weed had “wrongfully removed or retained” ATW within the meaning of the Convention, as implemented in the United States. After a two-day trial, the District Court (Frank, J.) found that Lakeman had made an unrebutted prima facie case for the relief she sought. Lakeman was awarded “physical custody of ATW for the purpose of returning ATW to his habitual residence in Canada.” The parties were directed to “work together to arrange a schedule for ATW to travel to Canada.” Lakeman v. Weed, Civ. No. 10-4265, Findings of Fact, Conclusions of Law, and Order [Dkt. No. 33] (D.Minn. Dec. 13, 2010) [“Hague Convention Order”], 8, 11-12, 13, 14.
A decision on Lakeman’s request for an award of attorney’s fees was reserved, pending further submissions to the court. In a memorandum opinion and order entered on March 2, 2011, Judge Frank awarded Lakeman attorney’s fees and costs in a total of $32,770.00. He based the award on an analysis of Lakeman’s request against governing law, plus a comparison of the parties’ respective financial circumstances. Lakeman v. Weed, Civ. No. 10-4265, Memorandum Opinion and Order [Dkt. No. 44] (D.Minn. Mar. 2, 2011), [“Attorneys’ Fees Order”], 2-5.
Weed’s bankruptcy filing under Chapter 7 followed, on December 28, 2011. Lake-man commenced, this adversary proceeding. Through it, she sought to have the award of attorney’s fees excepted from discharge under alternate theories,
This presents an apparent case of first impression; a thorough review of extant bankruptcy-law jurisprudence does not reveal a single published decision treating the dischargeability of an award of attorney’s fees under the Hague Convention and the ICARA under either
The statutory structure for the Plaintiffs theory of nondischargeability is intertwined at least in part.
Between them, these two provisions evidence a strong congressional intent: the bankruptcy process may not affect a wide range of personal obligations of payment that are created through legal processes under domestic-relations and family-law jurisdiction.
The current version of
The term “domestic support obligation” means a debt that accrues before, on, or after the date of the order for relief in a case under [the Bankruptcy Code], ..., that is—
(A) owed to or recoverable by—
(i)a ... child of the debtor or such child’s parent, legal guardian, or responsible relative ...
(B) in the nature of alimony, maintenance, or support, ... of such ... child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated;
(C) established or subject to establishment before, on, or after the date of the order for relief in a case under [the Bankruptcy Code], by reason of applicable provisions of—
(i) a separation agreement, divorce decree, or property settlement agreement;
(ii) an order of a court of record; or
(iii) a determination made in accordance with applicable nonbankrupt-cy law by a governmental unit; and
(D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the ... child of the debtor, or such child’s parent, legal guardian, or responsible relative for the purpose of collecting the debt.
In turn, the post-2005 text of
Lakeman’s argument for nondis-chargeability takes the sense of this extension, and runs hard with it. As Lakeman
This pitch is flawed in its own right, and on a preliminary ground as well.
In the first place,
Counsel’s unvoiced thought is that the specific phrase “to a spouse, former spouse, or child of the debtor” in pre-2005
Beyond that, there is the categorization within the statutory wording, going to the origin of the debt. Obviously the District Court’s award of attorney’s fees is not a debt “incurred ... in the course of a divorce or separation or in connection with a separation agreement [or] divorce decree.” That wording signifies court proceedings in regulation of the breakdown or dissolution of a legally-contracted marriage relationship. There was no marriage here. The Hague Convention proceeding was not one for dissolution of marriage or legal separation.
That much was patent. So, Lakeman’s counsel would have the debt saved by placing it into the catchall phrase that follows, “or other order of a court of record.”
As noted at the hearing, the limiting sense otherwise to be gleaned from the statute would be swallowed by a generality, were this argument credited. Without much of a stretch, the Plaintiffs construction would except from discharge a debt on account of a business loan made by an individual to an ex-spouse long after they were divorced, merely because that debt had been reduced to judgment.
This reading of § 528(a)(15) is also, supported by the doctrine of ejusdem gen-eris. Under this canon of statutory construction, general words at the end of a statutory enumeration are construed to embrace only objects similar in nature to those identified by the specific words that fall earlier in the statute’s enumeration. See United States v. Walker,
To be sure, ejusdem generis is not to be applied mechanically in a couple of situations: where such a construction of general words would be contrary to express legislative history (United States v. McCall,
So, the debt in question here does not fall within the scope of
Lakeman’s bid for nondischargeability under
First, the debt is owed to her, and she is a “parent, legal guardian, or respon
The central, substantive contention between the parties is whether the attorney-fee award is “in the nature of ... support ... of such ... child of the debtor or such child’s parent,” to satisfy
One threshold, semantic issue is made easy by the statute itself; it does not matter whether the award “is expressly so designated,” i.e., denominated as child support in so many words in the original adjudication. If the facts and circumstances establish the award as “in the nature of’ child support, it qualifies.
To establish that “nature,” Lake-man’s attorney analogized the award, made though it was under direct federal statutory authorization,
In response to Lakeman’s analogy, Weed emphasizes that a proceeding under the Hague Convention and the ICARA is not a proceeding to establish custody over the subject child. He is correct on that limited point. See Hague Convention, Art. 19 (“A decision under this Convention concerning the child shall not be taken to be a determination on the merits of any custody issue”);
The sense of Weed’s argument is that qualification as a domestic support obligation requires an origin in a comprehensive proceeding through which all of both parents’ rights and duties as to a child are fixed, as a long-term matter. But, the statutory definition does not require an origin in a specific type of legal proceeding, on its face or by implication. Under the longstanding judicial construction of the words “in the nature of,” the focus has to be on the award itself, as it functions in relation to the needs and interest of the dependent person who is ostensibly “supported” by the operation of the award.
In that regard, the deeper function of the Hague Convention speaks to the judicial contemplation that necessarily backs any award of attorney’s fees to a prevailing petitioner. Perforce, the recipient of such an award is a foreign national, who enters and subjects to a Convention-signatory forum state, seeking local judicial empowerment to return the child to its habitual residence that is outside the forum jurisdiction, in the interests of restoring continuity and stability in the child’s everyday, physical environment. See Barzilay v. Barzilay,
That all speaks to the legislative contemplation generally, as to the effect of an award of attorney’s fees under the ICARA. In passing on the dischargeability of a court-created debt obligation alleged to be “in the nature of’ support, the crucial question is the function the award was intended to serve. Adams v. Zentz,
The attorney’s fee award at issue undeniably aligned with the underlying statutory purpose, to promote a return to the status quo ante for Lakeman and ATW. And, as obviously, the focus was on a preexisting financial condition. The cost of Lakeman’s vindication across international boundary left her saddled with a large debt she would not have incurred otherwise, which she would have to pay over time. In determining what “necessary expenses” to impose on Weed pursuant to the statutory mandate, Judge Frank assessed the reasonableness of the attorneys’ fees charged to Lakeman. He parsed out the expenses she claimed, by allowing some and rejecting others as unnecessary “to the return of the child.” And finally, he awarded an amount less than the resultant quantum, after weighing both parties’ financial circumstances in order to make an award that would not be “clearly inappropriate.” Attorneys’ Fees Order at 5. The direct benefit of the award inured to Lakeman, obviously; so to the extent such considerations molded the final award, they in isolation do not require that
However, the question is the function that the award was intended to serve, and clearly the Eighth Circuit contemplated that intent could be inferred from the nature of the real-life function of a judicially-imposed award. See In re Kline,
Kline’s observation-in-dissent is accurate. It underlines the key circumstance for this analysis: the shifting of transactional costs effected by attorney’s-fee awards in child custody and child support proceedings, to the benefit of a custodial parent, is based upon the inherent fact of a zero-sum game for the custodial parent. After a legal vindication in court, the custodial parent still has all of the fixed costs for the upbringing of the child or children, plus that parent’s own personal maintenance; and the custodial parent has the additional burden of the attorney’s fees and costs, often substantial, that were incurred just to get or keep the custody of the child or children. By that point, attorneys are completely justified in wanting to be paid for the hard work they did toward the custodial parent’s success over opposition; and they necessarily press their demands on their client.
Then, as a matter of simple, de facto economics, “[ejvery dollar spent on attorney’s fees is a dollar not available for the support of [the custodial parent] and [the child].” In re Shea,
The ICARA has a presumptive mandate for an award of expenses, including attorney’s fees, which is rebuttable where “such order would be clearly inappropriate.”
In the preamble to his analysis, Judge Frank noted that Weed had conceded “that attorney fees and costs [were] recoverable [against him] under ICARA.” Given the concession, Judge Frank exercised judicial restraint; he did not make any specific statements to evidence his intent as to the function an award would serve. However, it is clear from the award’s structure that Judge Frank fully recognized that the Hague Convention proceeding had imposed unusual debt on Lake-man.
As clearly, he gave primacy to the restorative function of the presumptive mandate. After all, had the de facto, relative parity of the parties’ financial circumstances been the only consideration, it would have been defensible to leave each side liable for its own attorney’s fees without shifting any of them — or at least to more sharply discount the amount awarded to Lakeman. However, the restoration of ATWs physical presence to Lakeman’s household reimposed on her all the attendant, immediate financial and personal responsibility for ATW. With the presumptive mandate tilting the considerations greatly, Judge Frank obviously intended the restorative purpose of the statute to have its sway. Every dollar that Lakeman could collect from Weed for application to her attorneys’ fees would be a dollar not diverted from ATWs care and maintenance.
As such, the District Court’s award was in the nature of child support for ATW. Thus,
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED:
1. The Plaintiffs motion for summary judgment is granted in part and denied in part.
2. The Defendant’s motion for dismissal, considered as one for summary judgment, is denied in part and granted in part.
3.
4. The debt of the Defendant to the Plaintiff described in Term 3 is excepted from discharge in BKY 11-37943, by operation of
LET JUDGMENT BE ENTERED IN ACCORDANCE WITH TERMS 3 AND 4.
Notes
. See Anderson v. Liberty Lobby, Inc.,
. Such a scenario is not improbable. Nowadays, not all divorces result in eternal enmity and estrangement.
. Obvious examples would be debts arising from division of marital property; obligations to indemnify and hold harmless the other marital partner from marital debts; and, yes, awards of attorney’s fees incurred in connection with a proceeding for divorce or legal separation.
. To like outcome, though not on quite the same rationale, courts have limited the statute's application to situations of "some type of ‘marriage’ relationship where there has been a separation....” E.g., In re Hutchins,
. Thus, Weed is entitled to judgment in his favor on that theory of nondischargeability. It does not matter whether his "motion for dismissal” is treated as one for summary judgment,
. If one conceives of “standing” in a more connotative sense than is usually done in the federal courts, it could be said that
. See
. To accord relief under the Hague Convention and the ICARA, Judge Frank did grant Lakeman physical custody, in so many words. But, this vesting and its temporary nature cannot be pivotal, to either sides’ advantage. He granted temporary physical custody for the express purpose of returning ATW to Canada. Hague Convention Order at 13. This established Lakeman’s legal authority to remove ATW to the United States-Canadian border. The reason for doing this is obvious, as there had been no prior formal adjudication of custody for ATW, a child born out of wedlock. Its prudence is patent, from the standpoint of fixing United States and Canadian jurisdiction over the child, while within the respective forums' boundaries and especially for the purposes of establishing right of entry at the border.
. A 1986 notice by the United States Department of State shares this interpretation of the attorney’s-fee provision:
Any court ordering the return of a child pursuant to an action brought under [ICARA] shall order the respondent to pay necessaiy expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.
Hague Convention on the Civil Aspects of International Child Abduction, art. 2, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed.Reg. 10,494 (Mar. 26, 1986) (emphasis added).
. Obviously, in nearly all cases that original rule of decision will come from state law, the near-exclusive source for the substantive regulation of domestic relations in the understandings of our federal system. In re Burrus,
. Just as obviously, where a debt decreed by a family court arose from a stipulation between the parties to a domestic-relations proceeding, the parties’ intent is the relevant one.
. An abstract argument could be made, that the award was in the nature of support for Lakeman, as “such child's parent,”