This is аn appeal from a decision of the Bankruptcy Appellate Panel (“BAP”) holding that an obligation to pay attorney’s fees awarded in a divorce and custody proceeding are dischargeable in bankruptcy. This case requires a determination of whether sufficiently unusual circumstances exist to justify departure from the general rule of nondischargeability.
I. Facts
In 1997, Appellant filed for divorce from Appellee in the Oklahoma state court system. In September 1999, after protracted proceedings, the state court held a hearing to resolve the merits of the divorce and
On January 31, 2000, Appellee filed a Voluntary Petition in Bankruptcy in the District Court for the Western District оf Oklahoma seeking to discharge certain debts, including the $9,000 in attorney’s fees. Appellant filed an adversary proceeding in order tо have the attorney’s fees deemed nondischargeable under 11 U.S.C. § 523(a)(5) (2002) (classifying alimony and other support payments as non-disehargеable). The bankruptcy court held that the attorney’s fees awarded in the custody proceedings were nondis-chargeable, relying uрon our decision in
In
re
Jones,
Appellee appealed to the BAP, which reversed the bankruptcy court and held the attorney’s fees to be dischargeable. The BAP found that “if a parent’s income is so insubstantial that the obligation to pay аttorney’s fees will clearly affect the parent’s ability to financially support the child for a significant duration, that would present an unusual circumstance under
Jones.” In re Lowther,
II. Legal Standards
Title 11 U.S.C. § 523(a)(5) lists certain exceptions for dischargе, including any debt “to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child.... ” In
Jones,
we addressed the question of whether a court-ordered obligation to pay attorney’s fees incurred in connection with a custody dispute was non-dischargeable pursuant to § 523(a)(5).
See Jones,
As we noted in
Jones,
the term “support” is to be broadly defined in order to protect the best interests of the child.
See id.
The analysis in
Jones
focused entirely upon whether the obligation of the non-custodial parent was in the nature of support payments. To ensure that “genuine support obligations are not improperly discharged!,] ... the
term
‘support’ ” will generally include obligations to pay attorney’s fees incurred in a custody dispute.
See id.
at 882. It follows, therefore, that
Nevertheless, since this rule is fashioned around the best interests of the child, it also follows that the type of unusual circumstances most likely to warrant exception are those where discharge is in the best interests of the child. To hold that the general rule of nondischargeability should prevail despite adverse effects upon the child would be to ignore the policy considerations behind § 523(a)(5).
III. Applicability of Jones
Before addressing the unusual-circumstances exception, we must consider whether
Jones
applies in this case. Appel-lee suggests that the general rule of non-dischargeability in
Jones
turned on the fact that, in that case, the individuаl seeking discharge was the non-custodial parent. While this is true, it is not conclusive in making this determination. As the BAP stated, “Whether the attorney fees were awarded to the custodial parent, the noncustodial parent or both, the fact remains that the fees were awardеd in the context of a custody dispute to determine the best interests of the child, who is the putative beneficiary of the award.”
In re Lowther,
Custody alone, therefore, does not take this case out of the general rule of Jones, and we must therefore apply it here. However, Appellee’s status as the custodial parent is relevant to the determination of whether unusual circumstances warrant discharge and exception from the general rule. We turn now to that analysis.
IV. Unusual Circumstances
We review
de novo
the BAP’s determination that unusual circumstances warranted dischargeability in this cаse.
Pierce v. Underwood,
The facts, as determined by the bankruptcy court, indicate that Appellee has an income of $893 monthly and that Appellant is obligated to pay her $167 monthly in child support. In addition, Ap-pellee must pay the Appellant $9,000 in attorney’s fees. As the BAP noted, it would take Appellee approximately five years to pay this amount at a rate of $167 monthly if no interest accrued.
See In re Lowther,
Just as custody alone was insufficient to take this case out of the general rule of Jones, Appellee’s status as custodial parent does not necessarily require exception from the general rule. Custodial status must be weighed with the totality of thе circumstances. In light of Appellee’s financial condition, and considering the needs and constraints of the custody relationship, it is clear that the obligation to pay the attorney’s fees will adversely affect her ability to financially support the child in this case. Thеse- facts constitute unusual circumstances warranting this narrow exception to nondischargeability.
V. Conclusion
For the reasons set forth above, the decision of the BAP reversing the order of the bankruptcy court is AFFIRMED.
Notes
. The decision of the BAP was also the subject of a separate appeal to this court, which resulted in an Order and Judgment dated December 9, 2002.
See In re Lowther,