Wiggins v. Wilson (In Re Wilson)Wiggins v. Wilson (In Re Wilson)
- Reporters:
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- Before:
- Glenn
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CASE сame before the Court for hearing to consider the Motion for Summary Judgment filed by the Plaintiff, Bill Wiggins.
In the adversary proceeding currently before the Court, the Plaintiff alleges that the award of attorney’s fees constitutes an obligation for support within the meaning of § 523(a)(5) of the Bankruptcy Code. Consequently, the Plaintiff seeks a determination that the debt is nondischargeable in the Debtor’s bankruptcy case.
Background
On October 1, 2002, the Circuit Court for Hillsborough County, Florida entered a Final Judgment of Paternity. (Doc. 1, Complaint, Exhibit A). In the Judgment, the Court found that the Debtor was the father of Lauren E. Coleman, who was born on January 5, 2002.
Kelly A. Coleman (Coleman) is the child’s mother. The Debtor and Kelly Coleman were never married.
The Circuit Court subsequently entered an Order in the paternity action that required the Debtor to make child support payments to Coleman in the amount of $1,113.67 per month commencing on December 1, 2002. (Doc. 1, Complаint, Exhibit C, p. 3).
On October 24, 2002, the Debtor filed a Petition to Establish Primary Residential Care of the Minor Child, Visitation and for Further Relief in the Circuit Court. (Doc. 1, Complaint, Exhibit B). In the Petition, the Debtor asked the Court to award him “permanent sole parental care” of the child. The Debtor also asked the Court to awаrd him statutory child support from Coleman, and to modify the prior support order accordingly.
Coleman subsequently filed a Counter-petition to Modify Child Support and Establish Retroactive Child Support.
On January 20, 2005, the Circuit Court conducted a final evidentiary hearing on the Debtor’s Petition and Colemаn’s Coun-terpetition.
On February 16, 2005, the Circuit Court entered a Final Judgment on Petition to Establish Primary Residential Care of the Minor Child, Visitation and for Further Relief and Counterpetition to Modify Child Support and Establish Retroactive Child Support. (Doc. 1. Complaint, Exhibit C). In the Final Judgment, the Court denied the Debtor’s request for primаry residential custody of the child, and determined that the Debtor and Coleman should have shared parental responsibility, with the child’s primary residence to remain with Coleman.
The Court also required the Debtor to pay Coleman the sum of $1,133.73 per month “as and for child support for the minor child” commencing on February 1, 2005, and retroactive child support in the amount of $52.33 biweekly until the total amount of the retroactive support ($12,-319.00) was paid in full.
Finally, the Court required the Debtor to pay Coleman’s attorney’s fees, as follows:
8. The Petitioner shall pay the Respondent’s reasonable attorney fees and costs, which have been stipulated to as reasonable by the Petitioner, in the amount of $8,416.45. These fees and costs shall be paid directly to the Respondent’s counsel, Bill Wiggins Esquire, at 115 South Willow Avenue Tampa, Florida 33606 or at such future address to which the Petitioner hаs been given notice. These fees and costs shall be paid at the rate of $250.00 per month commencing February 1, 2005and continuing at that rate each and every month until paid in full.
(Doc. 1, Complaint, Exhibit C, p. 3).
The Debtor did not make the monthly-payments to the Plaintiff as required by the Final Judgment, and the Plaintiff filed a Motion for Contempt for Nonpayment of Attorney’s Fees and Costs in the Circuit Court.
On September 26, 2005, the General Magistrate issued its Report and Recommendations on the Plaintiffs Motion for Contempt. The Magistrate determined, among other findings, that the Debtor’s “average net income has been in excess of $2,000.00 evеry two weeks,” but that the Debtor had failed to make the payments to the Plaintiff as required by the Judgment. The Magistrate also found that the Plaintiff had incurred attorney’s fees and costs in the amount of $1,033.00 in connection with the Motion for Contempt. Consequently, the General Magistrate concluded that
2. Thе reasonable costs and attorney fees of respondent in bringing this motion in the amount of $1,033.00 shall be added to the balance of attorney fees and costs owed in the amount of $7,916.35 bringing the total balance owed by Petitioner to $8,949.35.
(Doc. 1, Complaint, Exhibit D, p. 3). The Circuit Court ratified and adoptеd the Recommendations of the General Magistrate on October 12, 2005. (Doc. 1, Complaint, Exhibit E).
The Debtor filed a petition under Chapter 7 of the Bankruptcy Code on September 30, 2005.
The Plaintiff subsequently commenced this adversary proceeding by filing a Complaint to Determine Dischargeability оf Debt under
Thе Debtor answered the Complaint, and asserted that the debt is not child support, and that the Circuit Court did not intend for the award to constitute child support. (Doc. 4).
In the Motion for Summary Judgment currently under consideration, the Plaintiff contends that there are no genuine issues of material fact, and thаt he is entitled to the entry of a judgment in his favor as a matter of law.
Discussion
11 USC § 523 . Exceptions to discharge
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—
(5) to a spousе, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that—
(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually inthe nature of alimony, maintenance, or support.
Courts generally look to federal law to determine whether a particular obligation constitutes support within the meaning of
In applying federal law, courts in the Eleventh Circuit typically agree that the “simple inquiry” is “whether the obligation can legitimately be characterized as support, that is, whether it is in the
nature
of support.”
In re Strickland,
In
Strickland,
for example, the Eleventh Circuit determined that a debtor’s court-ordered obligation to pay his former spouse’s attorney’s fees in a custody prоceeding was an obligation for “support” under
Additionally, the Second Circuit Court of Appeals evaluated a debtor’s obligation for legal fees in a case that is substantially similar to the case at bar, and found that the debt was a nondischargeble obligation for support.
In re Maddigan,
In
Maddigan,
the parents of a child both commenced proceedings to obtain custody of their daughter. The parents had never married. At the conclusion of the proceedings, the Family Court awarded custody to the mother, and ordered the debtor to pay the legal fees that the mother had incurred in the action. The fees were to be paid directly to her attorneys. The debtor subsequently filed a petition under Chapter 7 of the Bankruptcy Code, and the mother’s attorneys filed a complaint in the Bankruptcy Court for a determination that their claim for legal fees was nondischargeable under
The Second Circuit found that three requirements must be satisfied for the debt to be nondischargeable as a support obligation.
First, the debt must be “to a spouse, former spouse, or child of the debtоr.”11 U.S.C. § 523(a)(5) . Second, the debt must be “actually in the nature of’ (as opposed to simply designated as) alimony, maintenance, or support.Id. § 523(a)(5)(B) . Third, the debt must have been incurred “in connection with a separation agreement, divorce decree or other order of a court of reсord.”Id. § 523(a)(5) .
In re
Maddigan,
First, the Court determined that the custody proceeding was substantially concerned with the welfare of the child, and that the fees incurred by the mother should therefore be characterized as a debt to the child within the meaning of
Second, the Court determined that the debt to the mother’s attorneys was “in the nature of support” for the child. In reaching this conclusion, the Seсond Circuit found that the decision to order the debtor to pay the mother’s legal fees had been based on the parties’ relative income, assets, ability to pay, and other “factors of support.” Id. at 595. Given this analysis, together with the strong public policy in favor of enforcing family obligations, the Court found that the obligation was in the nature of support, even though the Family Court had not designated the award as support, and even though the issue in the Family Court primarily involved custody matters rather than support. Id. at 595-96.
Third, the Court found that the debt to the mother’s attorneys was incurred in connection with an order of a court of record because it was awarded by the Family Court in a custody proceeding. Id. at 597.
Since all of the requirements for nondis-chargeability under
For additional decisions under
Application
In this case, the Court finds that the debt оwed by the Debtor to the Plaintiff is nondischargeable pursuant to
The debt arises from a paternity action in which the Debtor was determined to be the father of Lauren Coleman. (Doc. 1, Complaint, Exhibit A).
Following the entry of the Final Judgment of Paternity, the Debtor filed a Petition for custody of the child, and fоr support from the child’s mother. The child’s mother (Coleman) counterpetitioned for modification of the child support obligation that had been ordered in the paternity action.
On February 16, 2005, the Circuit Court entered a Final Judgment that resolved the Debtor’s Petition for custody and support, аnd Coleman’s Counterpetition for support. The Final Judgment determined all of the issues involving custody of the child, and expressly required the Debtor to make periodic payments to Coleman “as and for child support for the minor child.” (Doc. 1, Complaint, Exhibit C, p. 2). The Final Judgment also required the Debtоr to make bi-weekly payments to Coleman as retroactive child support.
Finally, the Final Judgment required the Debtor to pay the legal fees that were
Thе Plaintiff asserts that the Circuit Court based its award of legal fees on the parties’ income and ability to pay:
6. On January 28, 2005, following the trial of the consolidated cases referenced above, Circuit Judge Manuel Lopez made a finding that the father (Defendant herein) had a gross incomе of $7,269.00 and the mother had a gross income of $2,005.00 and that the father (Defendant herein) clearly had the ability to pay attorney’s fees.
(Doc. 13, p. 5). In this regard, the Plaintiff also represented to this Court that the Circuit Court “made a finding that Mr. Wilson’s income was more than three times that of Miss Coleman and thаt he had the ability to pay the attorney’s fees.” (Transcript, p. 4).
The transcript of the Circuit Court’s ruling is not in the record before this Court. (See Doc. 1, Complaint, Exhibit C, p. 1). Nevertheless, the Debtor has acknowledged that the Circuit Court “made a specific finding that the Debtor had the ability to pay the mоther’s attorney fees in the trial court.” (Doc. 7, Joint Pretrial Statement, Statement of All Admitted or Uncontested Facts, p. 6).
Given these circumstances, and also given the authorities discussed above, the Court finds that the debt owed by the Debtor to the Plaintiff is a debt to a child of the Debtor, that the debt is in thе nature of child support, and that the debt was incurred in connection with an order of a court of record. Accordingly, the debt is/s/ Paul M. Glenn nondischargeable pursuant to
Finally, the nondischargeable obligation includes the amount awarded to the Plaintiff as a result of the contempt рroceeding that he initiated to collect the original debt.
In re Sinewitz,
Conclusion
The Plaintiff, an attorney, commenced this action by filing a Cоmplaint to determine the nondischargeability of a debt owed to him by the Debtor. The debt constitutes legal fees awarded to the Plaintiff following a child custody and support proceeding. The Plaintiff represented the mother of the Debtor’s child.
The Court finds that the obligation is a debt to a сhild of the Debtor, is in the nature of support, and was awarded in connection with an order of a court of record. Consequently, the obligation is nondischargeable pursuant to
Accordingly:
IT IS ORDERED that:
1. The debt owed to the Plaintiff, Bill Wiggins, by the Debtor, Royce Duane Wilson, as evidenced by the Final Judgment entered by the Circuit Court for Hillsborough County on February 16, 2005, in the consolidated cases of
Wilson, Petitioner, and Coleman, Respondent,
Case No. 02 017736, and
State Department of Revenue v. Wilson,
Case No.2002-DR-16043, is nondischargeable pursuant to
2. A separate Final Judgment will be entered consistent with this Order.