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Matter of Dvorak

United States Court of Appeals, Fifth Circuit
Mar 26, 1993
986 F.2d 940 (5th Cir. 1993)

Summary

holding that legal fees for a child's guardian ad litem in a custody proceeding were "clearly for [the child]'s benefit and support," and as such were nondischargeable under § 523

Summary of this case from In re Maddigan

Opinion

No. 92-7203. Summary Calendar.

March 26, 1993.

Gloria Jean R. Dvorak, pro se.

Larry D. Woody, Victoria, TX, for appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, DUHE, and BARKSDALE, Circuit Judges.


Jean Dvorak appeals the district court's affirmation of the bankruptcy court's determination that attorney's fees incurred during the custody battle over Jean Dvorak's daughter are a non-dischargeable debt under Chapter 7 of the Bankruptcy Code. We affirm.

I. BACKGROUND

After the dissolution of her marriage to Wesley Rich, Appellant Jean Dvorak (Appellant) sought custody of their daughter, Brandi Rich. During the ensuing child custody litigation in state court, Wesley Rich was represented by attorney Barbara Fritz, and attorney Roland Carlson was appointed by the state court as Brandi Rich's guardian ad litem. After a jury trial, the state court terminated Appellant's parental rights, awarded custody to Wesley Rich, and ordered Appellant to pay fees charged by Barbara Fritz and a portion of fees charged by Roland Carlson as guardian ad litem.

Appellant appealed to the state appellate court, and her appeal was dismissed. Shortly thereafter, she filed for relief under Chapter 7 of the Bankruptcy Code. Appellees Barbara Fritz and Roland Carlson then filed a complaint in bankruptcy court seeking to declare as non-dischargeable under Bankruptcy Code § 523(a)(5) Appellant's court-ordered obligation to pay them.

11 U.S.C. § 523(a)(5) provides in pertinent part: "[a] discharge under ... this title does not discharge an individual debtor from 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 connection with a separation agreement, divorce decree or other order of a court of record...."

The bankruptcy court concluded that the court-ordered payment of attorneys' fees incurred in post-divorce/child custody litigation should be recognized as child support, and therefore non-dischargeable under § 523(a)(5). In reaching this conclusion the bankruptcy court relied on In re Snider, 62 B.R. 382 (Bankr.S.D.Tex. 1986) (visitation is sufficiently related to child support so as to render the award of attorney's fees as non-dischargeable under § 523(a)(5)), and In re Laney, 53 B.R. 231 (Bankr.N.D.Tex. 1985) (fees awarded in domestic litigation should be recognized as alimony, maintenance, or child support and therefore non-dischargeable). The district court subsequently affirmed the bankruptcy court's decision.

II. STANDARD OF REVIEW

We review findings of fact under the clearly erroneous standard, but are free to review conclusions of law de novo. In re Consolidated Bancshares, 785 F.2d 1249, 1252 (5th Cir. 1986) (citing Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d 1303, 1307-08 (5th Cir. 1985)).

III. ANALYSIS

The issue we review is a narrow issue of law: whether Appellant's court-ordered obligation to pay fees charged by Barbara Fritz and a portion of fees charged by Roland Carlson as guardian ad litem is considered child support, and therefore non-dischargeable under 11 U.S.C. § 523(a)(5). Having carefully considered the relevant case law, we conclude that the bankruptcy court and district court correctly determined that Appellant's debt is non-dischargeable.

Section 523(a)(5) does not discharge a debtor from any debt for support of his or her child, if that debt is in connection with a court order. 11 U.S.C. § 523(a)(5). Barbara Fritz, representing Wesley Rich, and Roland Carlson, as Brandi Rich's guardian ad litem, supplied services during the child custody hearing of Brandi Rich. That hearing was clearly for Brandi Rich's benefit and support, as the purpose of the hearing was to determine who could provide the best home for her. See In re Laney, 53 B.R. at 233. The state court subsequently ordered Appellant to pay fees charged by Barbara Fritz and a portion of fees charged by Roland Carlson.

Because the fees charged by Appellees were incurred during a court hearing that was for Brandi Rich's benefit and support, and because the state court then ordered the fees to be paid by Appellant, we conclude that the fees constitute a non-dischargeable debt under § 523(a)(5).

IV. CONCLUSION

For the foregoing reasons, the district court's order is AFFIRMED.


Summaries of

Matter of Dvorak

United States Court of Appeals, Fifth Circuit
Mar 26, 1993
986 F.2d 940 (5th Cir. 1993)

holding that legal fees for a child's guardian ad litem in a custody proceeding were "clearly for [the child]'s benefit and support," and as such were nondischargeable under § 523

Summary of this case from In re Maddigan

holding that guardian ad litem fees were "clearly for the child's benefit and support" and thus debt was not dischargeable under section 523

Summary of this case from In re Liebowitz

holding that guardian ad litem fees intended for the child's benefit are in the nature of support

Summary of this case from In re Joffrion

holding that § 523 “does not discharge a debtor from any debt for support of his or her child, if that debt is in connection with a court order.”

Summary of this case from Doolittle v. Doolittle (In re Doolittle)

holding that attorneys' fees awarded for services during a child custody hearing were non-dischargeable because the hearing was for the child's benefit and support

Summary of this case from Hutton v. Ferguson (In re Hutton)

holding that legal fees for child's guardian ad litem in custody proceeding were “clearly for [child]'s benefit and support,” and as such were nondischargeable under § 523

Summary of this case from In re Anderson

holding that since the guardian ad litem's fees were incurred during a court proceeding for the child's benefit and support, they were nondischargeable under § 523

Summary of this case from In re Rose

holding that fees ordered to be paid to guardian ad litem constituted a debt that could not be discharged in bankruptcy, as this representative supplied services during custody hearing which were clearly for child's benefit and support; "[s]ection 532 does not discharge a debtor from any debt for support of his or her child, if that debt is in connection with a court order"

Summary of this case from Kecinska v. Wypych

finding that fees of guardian ad litem generated during a custody hearing were in the nature of support, because hearing “was clearly for [the child's] benefit and support”

Summary of this case from McNeil v. Drazin

finding that fees of guardian ad litem generated during a custody hearing were in the nature of support, because hearing "was clearly for [the child's] benefit and support"

Summary of this case from McNeil v. Drazin

affirming that attorney's fees incurred in post-divorce proceeding for a child's benefit and support were nondischargeable under § 523

Summary of this case from Hille v. Hille

excepting debtor's former husband's attorney fees and daughter's guardian ad litem fees

Summary of this case from Kassicieh v. Battisti (In re Kassicieh)

In Matter of Dvorak, 986 F.2d 940, 941 (5th Cir 1993), the Fifth Circuit Court of Appeals seems to agree with the Lockwood decision by finding guardian ad litem fees were nondischargeable when incurred for representing a child's interests in noneconomic support disputes.

Summary of this case from Metre v. Thompson
Case details for

Matter of Dvorak

Case Details

Full title:IN THE MATTER OF GLORIA JEAN R. DVORAK AND, JAMES O. DVORAK, DEBTORS…

Court:United States Court of Appeals, Fifth Circuit

Date published: Mar 26, 1993

Citations

986 F.2d 940 (5th Cir. 1993)

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