Opinion
No. 78-36-BK-JLK-B.
July 7, 1978
Debts Not Affected By Discharge — Alimony, Maintenance and Support — Gender Based Discrimination
Section 17a(7) of the Bankruptcy Act, which excepts from discharge debts of alimony due or to become due, or for maintenance or support of wife or child, did not create an invalid gender based distinction.
A wife who had obtained child support and alimony sought a determination that the obligation was non-dischargeable under Section 17a(7). The bankrupt argued that Section 17a(7) creates an invalid gender based distinction. The bankrupt relied on In re Wasserman, Bank. L. Rep. ¶ 66,471, where it was held that Section 17a(7) was unconstitutional as creating an invalid gender based classification.
The court rejected the bankrupt's argument. Although its reasoning was slightly different, the court shared the conclusion reached in In re Pinkerton, Bank. L. Rep. ¶ 66,808, where the court held the statute constitutional by reading "wife to mean spouse". The instant court first noted that the Bankruptcy Act exempts from discharge all alimony, not just alimony payable to a wife. Thus, the court concluded that there was no question of gender discrimination in the exclusion of alimony from discharge.
Secondly, the court was satisfied that, if the exemption for "maintenance or support" is taken literally as applicable only to the wife, the classification rests upon a substantial difference between the spouses, reasonably related to the legislation's evident purpose, which is to insure the continued support of the dependent wife after a broken marriage. The court cited Kahn v. Shevin, 416 U.S. 351 (1974), where the Supreme Court upheld a Florida annual tax exemption available to widows, but not to widowers. Quoting statistics that women earn less than men and that most wives are not employed, the Court held that Florida's differing treatment of widows and widowers had a "fair and substantial relation to the object of the legislation". Here, the bankruptcy court was unable to distinguish Kahn v. Shevin from the issue before it.
However, noted the court, if the legislative classification is invidiously discriminatory when taken literally, it seems obvious that it is a court's duty to extend the statute's coverage to husbands rather than to deny it to wives by the "Draconian remedy adopted in Wasserman." When a court is compelled to hold a statute discriminatorily invalid it should, if possible, extend the coverage of the statute rather than declare it invalid. Thus, the court held that the wife's entitlement to alimony and child support was not dischargeable in bankruptcy. See Section 17a(7) [§ 523(a)(5)] at ¶ 9231.