FILED NOV 15 2016 1 NOT FOR PUBLICATION 2 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-16-1086-TaFMc ) 6 JOSEPH M. GATELY, ) Bk. No. 9:11-bk-12041-PC ) 7 Debtor. ) ______________________________) 8 ) JOSEPH M. GATELY, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) BRIAN MOORE; ELIZABETH F. ) 12 ROJAS, Chapter 13 Trustee; ) JONI JENEA GATELY, ) 13 ) Appellees.** ) 14 ______________________________) 15 Submitted Without Oral Argument*** on October 21, 2016 16 Filed – November 15, 2016 17 Appeal from the United States Bankruptcy Court 18 for the Central District of California 19 Honorable Peter H. Carroll, Bankruptcy Judge, Presiding 20 21 * This disposition is not appropriate for publication. 22 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 23 See 9th Cir. BAP Rule 8024-1(c)(2). 24 ** Neither Brian Moore nor Elizabeth Rojas filed a brief on 25 appeal. As a result, they waived the opportunity to appear in this case. 26 *** 27 The Panel unanimously determined that the appeal was suitable for submission on the briefs and record pursuant to 28 Rule 8019(b)(3). 1 2 Appearances: Appellant Joseph M. Gately, pro se, on brief; appellee Joni Gately, pro se, on brief. 3 4 Before: TAYLOR, FARIS, and MCKITTRICK,**** Bankruptcy Judges. 5 6 INTRODUCTION 7 Chapter 131 debtor Joseph Gately appeals from an order 8 denying his motion to avoid a judicial lien under § 522(f)(1). 9 We AFFIRM. 10 FACTS 11 Prior to the bankruptcy filing, the Debtor and Joni Gately 12 were married for nearly two years. The Debtor eventually sought 13 marital dissolution in the Family Law Division of the Superior 14 Court of California for the County of Ventura. 15 Following a trial regarding Joni’s2 assertion of spousal 16 support arrearages and the Debtor’s request for modification of 17 his interim support obligations, the family court issued its 18 Ruling on Submitted Matter (the “Ruling”). The Ruling’s second 19 paragraph contained an express acknowledgment of Joni’s then 20 pending bankruptcy case and the fact that: “[t]he parties [had] 21 agreed that the trial could proceed on the issue of status and 22 **** 23 The Honorable Peter C. McKittrick, United States Bankruptcy Judge for the District of Oregon, sitting by 24 designation. 25 1 Unless otherwise indicated, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 26 2 27 Because Joni Gately retained the surname “Gately,” we, for the sake of clarity, refer to her by first name in this 28 bench memorandum. No disrespect is intended.
2 1 spousal support, but not on any other matters.” Bk. Dkt. 2 No. 130 at p. 10. The family court then awarded Joni support 3 arrearages, established the duration of the Debtor’s support 4 obligation, and reduced the amount of Debtor’s monthly support 5 obligation at the halfway point. The Ruling’s concluding 6 paragraphs included an acknowledgment that: “[a]s a result of 7 [Joni’s] pending bankruptcy, there are certain issues which the 8 family court cannot address.” Id. at p. 15. 9 As relevant to this appeal, the Ruling also awarded 10 attorney’s fees and costs to Joni and required payment of 11 $3,500 directly to Joni’s divorce attorney, Brian Moore. The 12 Ruling acknowledged that, when considering a fee award, the 13 family court was required by California Family Code § 2032 to 14 determine what was just and reasonable given the relative 15 circumstances of the parties. It then outlined the information 16 relied upon to reach a conclusion in that case; the information 17 expressly included “Income & Expense documentation submitted on 18 behalf of [Joni and the Debtor].” Bk. Dkt. No. 130 at p. 14. 19 The Ruling awarded fees to Joni, concluding that: “[t]o 20 equitably apportion the cost of the pending litigation the court 21 does find that it is just and reasonable to order that [the 22 Debtor] pay for a portion of the fees incurred by [Joni].” Id. 23 The Debtor did not pay the attorney’s fees, a writ of 24 execution issued, and the Ventura County Sheriff’s Office levied 25 on the Debtor’s wages in the amount of $3,777.90. Unhappy with 26 this development, the Debtor filed a chapter 13 petition and 27 claimed a wildcard exemption on the funds held by the Sheriff. 28 The Debtor later moved under § 522(f) to avoid what he
3 1 characterized as the lien held by Joni’s counsel.3 Although 2 Joni’s family court counsel did not oppose the motion, Joni 3 did.4 Among other things, she argued that the lien was not 4 subject to avoidance because it secured a claim that was in the 5 nature of spousal support pursuant to § 523(a)(5) and, thus, 6 excluded from avoidance by § 522(f)(1)(A). 7 At the hearing on the matter, the bankruptcy court denied 8 the Debtor’s motion. Although the Debtor argued that the 9 attorney’s fee award was separate and distinct from the spousal 10 support award, the bankruptcy court found that the fee award was 11 a domestic support obligation within the meaning of §§ 523(a)(5) 12 and 101(14A). It pointed out, in particular, that case law 13 established that an award of attorney’s fees made as part of the 14 Ruling was “entitled to the same priority and 15 non-dischargeability as the spousal support itself.” Hr’g Tr. 16 (Mar. 24, 2016) at 4:21-25. 17 Following the bankruptcy court’s entry of an order denying 18 the Debtor’s motion to avoid lien, the Debtor timely appealed. 19 3 The record does not describe the judicial lien at issue. 20 Perhaps, the judicial lien is an execution lien under California 21 Code of Civil Procedure § 697.710 or a lien created by an earnings withholding order under California Code of Civil 22 Procedure § 706.029. Joni argued before the bankruptcy court that no lien existed. She also argued that the Debtor lost 23 title to the funds at issue after levy. Because Joni does not 24 reassert these arguments on appeal, she has abandoned them and we do not address them. 25 4 A few documents were not included in the excerpts of 26 record. Thus, we exercise our discretion to take judicial 27 notice of documents electronically filed in the bankruptcy case. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 28 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).
4 1 JURISDICTION 2 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 3 §§ 1334 and 157(b)(2)(A). We have jurisdiction under 28 U.S.C. 4 § 158. 5 ISSUE 6 Whether the bankruptcy court erred in denying the Debtor’s 7 motion to avoid a lien pursuant to § 522(f)(1). 8 STANDARDS OF REVIEW 9 Whether a creditor’s judicial lien is avoidable under 10 § 522(f)(1) is a question of law, which we review de novo. 11 McCoy v. Kuiken (In re Kuiken), 484 B.R. 766, 769 (9th Cir. BAP 12 2013). Whether a debt constitutes a domestic support obligation 13 under the Code is a factual finding, which we review for clear 14 error. See Beaupied v. Chang (In re Chang), 163 F.3d 1138, 1140 15 (9th Cir. 1998). A factual finding is clearly erroneous if it 16 is illogical, implausible, or without support in inferences that 17 may be drawn from the facts in the record. See 18 TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 19 (9th Cir. 2011).
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FILED NOV 15 2016 1 NOT FOR PUBLICATION 2 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-16-1086-TaFMc ) 6 JOSEPH M. GATELY, ) Bk. No. 9:11-bk-12041-PC ) 7 Debtor. ) ______________________________) 8 ) JOSEPH M. GATELY, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) BRIAN MOORE; ELIZABETH F. ) 12 ROJAS, Chapter 13 Trustee; ) JONI JENEA GATELY, ) 13 ) Appellees.** ) 14 ______________________________) 15 Submitted Without Oral Argument*** on October 21, 2016 16 Filed – November 15, 2016 17 Appeal from the United States Bankruptcy Court 18 for the Central District of California 19 Honorable Peter H. Carroll, Bankruptcy Judge, Presiding 20 21 * This disposition is not appropriate for publication. 22 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 23 See 9th Cir. BAP Rule 8024-1(c)(2). 24 ** Neither Brian Moore nor Elizabeth Rojas filed a brief on 25 appeal. As a result, they waived the opportunity to appear in this case. 26 *** 27 The Panel unanimously determined that the appeal was suitable for submission on the briefs and record pursuant to 28 Rule 8019(b)(3). 1 2 Appearances: Appellant Joseph M. Gately, pro se, on brief; appellee Joni Gately, pro se, on brief. 3 4 Before: TAYLOR, FARIS, and MCKITTRICK,**** Bankruptcy Judges. 5 6 INTRODUCTION 7 Chapter 131 debtor Joseph Gately appeals from an order 8 denying his motion to avoid a judicial lien under § 522(f)(1). 9 We AFFIRM. 10 FACTS 11 Prior to the bankruptcy filing, the Debtor and Joni Gately 12 were married for nearly two years. The Debtor eventually sought 13 marital dissolution in the Family Law Division of the Superior 14 Court of California for the County of Ventura. 15 Following a trial regarding Joni’s2 assertion of spousal 16 support arrearages and the Debtor’s request for modification of 17 his interim support obligations, the family court issued its 18 Ruling on Submitted Matter (the “Ruling”). The Ruling’s second 19 paragraph contained an express acknowledgment of Joni’s then 20 pending bankruptcy case and the fact that: “[t]he parties [had] 21 agreed that the trial could proceed on the issue of status and 22 **** 23 The Honorable Peter C. McKittrick, United States Bankruptcy Judge for the District of Oregon, sitting by 24 designation. 25 1 Unless otherwise indicated, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 26 2 27 Because Joni Gately retained the surname “Gately,” we, for the sake of clarity, refer to her by first name in this 28 bench memorandum. No disrespect is intended.
2 1 spousal support, but not on any other matters.” Bk. Dkt. 2 No. 130 at p. 10. The family court then awarded Joni support 3 arrearages, established the duration of the Debtor’s support 4 obligation, and reduced the amount of Debtor’s monthly support 5 obligation at the halfway point. The Ruling’s concluding 6 paragraphs included an acknowledgment that: “[a]s a result of 7 [Joni’s] pending bankruptcy, there are certain issues which the 8 family court cannot address.” Id. at p. 15. 9 As relevant to this appeal, the Ruling also awarded 10 attorney’s fees and costs to Joni and required payment of 11 $3,500 directly to Joni’s divorce attorney, Brian Moore. The 12 Ruling acknowledged that, when considering a fee award, the 13 family court was required by California Family Code § 2032 to 14 determine what was just and reasonable given the relative 15 circumstances of the parties. It then outlined the information 16 relied upon to reach a conclusion in that case; the information 17 expressly included “Income & Expense documentation submitted on 18 behalf of [Joni and the Debtor].” Bk. Dkt. No. 130 at p. 14. 19 The Ruling awarded fees to Joni, concluding that: “[t]o 20 equitably apportion the cost of the pending litigation the court 21 does find that it is just and reasonable to order that [the 22 Debtor] pay for a portion of the fees incurred by [Joni].” Id. 23 The Debtor did not pay the attorney’s fees, a writ of 24 execution issued, and the Ventura County Sheriff’s Office levied 25 on the Debtor’s wages in the amount of $3,777.90. Unhappy with 26 this development, the Debtor filed a chapter 13 petition and 27 claimed a wildcard exemption on the funds held by the Sheriff. 28 The Debtor later moved under § 522(f) to avoid what he
3 1 characterized as the lien held by Joni’s counsel.3 Although 2 Joni’s family court counsel did not oppose the motion, Joni 3 did.4 Among other things, she argued that the lien was not 4 subject to avoidance because it secured a claim that was in the 5 nature of spousal support pursuant to § 523(a)(5) and, thus, 6 excluded from avoidance by § 522(f)(1)(A). 7 At the hearing on the matter, the bankruptcy court denied 8 the Debtor’s motion. Although the Debtor argued that the 9 attorney’s fee award was separate and distinct from the spousal 10 support award, the bankruptcy court found that the fee award was 11 a domestic support obligation within the meaning of §§ 523(a)(5) 12 and 101(14A). It pointed out, in particular, that case law 13 established that an award of attorney’s fees made as part of the 14 Ruling was “entitled to the same priority and 15 non-dischargeability as the spousal support itself.” Hr’g Tr. 16 (Mar. 24, 2016) at 4:21-25. 17 Following the bankruptcy court’s entry of an order denying 18 the Debtor’s motion to avoid lien, the Debtor timely appealed. 19 3 The record does not describe the judicial lien at issue. 20 Perhaps, the judicial lien is an execution lien under California 21 Code of Civil Procedure § 697.710 or a lien created by an earnings withholding order under California Code of Civil 22 Procedure § 706.029. Joni argued before the bankruptcy court that no lien existed. She also argued that the Debtor lost 23 title to the funds at issue after levy. Because Joni does not 24 reassert these arguments on appeal, she has abandoned them and we do not address them. 25 4 A few documents were not included in the excerpts of 26 record. Thus, we exercise our discretion to take judicial 27 notice of documents electronically filed in the bankruptcy case. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 28 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).
4 1 JURISDICTION 2 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 3 §§ 1334 and 157(b)(2)(A). We have jurisdiction under 28 U.S.C. 4 § 158. 5 ISSUE 6 Whether the bankruptcy court erred in denying the Debtor’s 7 motion to avoid a lien pursuant to § 522(f)(1). 8 STANDARDS OF REVIEW 9 Whether a creditor’s judicial lien is avoidable under 10 § 522(f)(1) is a question of law, which we review de novo. 11 McCoy v. Kuiken (In re Kuiken), 484 B.R. 766, 769 (9th Cir. BAP 12 2013). Whether a debt constitutes a domestic support obligation 13 under the Code is a factual finding, which we review for clear 14 error. See Beaupied v. Chang (In re Chang), 163 F.3d 1138, 1140 15 (9th Cir. 1998). A factual finding is clearly erroneous if it 16 is illogical, implausible, or without support in inferences that 17 may be drawn from the facts in the record. See 18 TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 19 (9th Cir. 2011). 20 DISCUSSION 21 Section 522(f)(1) permits a debtor to avoid the lien of a 22 judgment creditor on exempted property. It states in relevant 23 part that “the debtor may avoid the fixing of a [judicial] lien 24 on an interest of the debtor in property to the extent that such 25 lien impairs an exemption to which the debtor would have been 26 entitled under [§ 522(b)] . . . .” 27 To avoid the lien, the debtor must satisfy three 28 conditions: (1) that there was a fixing of a lien on an interest
5 1 of the debtor in property; (2) that the lien impairs an 2 exemption to which the debtor would have been entitled; and 3 (3) that the lien is a judicial lien. Culver, LLC v. Chiu 4 (In re Chiu), 304 F.3d 905, 908 (9th Cir. 2002). But 5 § 522(f)(1) specifically excludes some liens including: “a 6 judicial lien that secures a debt of a kind that is specified in 7 [§] 523(a)(5).” See 11 U.S.C. § 522(f)(1)(A). 8 Section 523(a)(5) excepts from discharge a debt for a 9 “domestic support obligation.” In relevant part, that term is 10 defined by the Code as a debt “owed to or recoverable by . . . 11 [a] former spouse . . . in the nature of alimony, maintenance, 12 or support . . .” of the former spouse, by “reason of . . . a 13 separation agreement, divorce decree, or property settlement 14 agreement,” and “without regard to whether such debt is 15 expressly so designated . . . .” 11 U.S.C. § 101(14A)(A)- 16 (C)(i). The debt cannot be “assigned to a nongovernmental 17 entity,” unless voluntarily assigned by a statutorily designated 18 person. Id. § 101(14A)(D). 19 Here, the Debtor argues that the bankruptcy court erred in 20 determining that the attorney’s fees awarded to Joni in the 21 Ruling were in the nature of spousal support. He contends that 22 the fees constituted “an equalization payment subject to 23 discharge under § 523(a)(15) . . . .” In support of his 24 position, the Debtor asserts that the family court awarded 25 support to Joni under one section of the California Family Code 26 and awarded attorney’s fees to her attorney under a different 27 section of the statutory scheme. We disagree with the Debtor’s 28 assertions.
6 1 An award of attorney’s fees in a marital dissolution 2 proceeding may be in the nature of a domestic support obligation 3 for the purposes of §§ 523(a)(5) and 101(14A).5 See Gionis v. 4 Wayne (In re Gionis), 170 B.R. 675, 682-84 (9th Cir. BAP 1994), 5 aff’d, 92 F.3d 1192 (9th Cir. 1996); see also Rehkow v. Lewis 6 (In re Rehkow), 2006 WL 6811011, at *3 (9th Cir. BAP Aug. 17, 7 2006) (“Cases in the Ninth Circuit and in other circuits 8 customarily have held that attorneys’ fees awarded in connection 9 with a dissolution proceeding are non-dischargeable in 10 bankruptcy under § 523(a)(5) as alimony, maintenance, or 11 support.”), aff’d, 239 F. App’x 341, 342 (9th Cir. 2007) 12 (“Attorneys’ fees . . . fall within the exception for discharge 13 for support obligations.”). 14 Labels in a divorce decree do not control the question of 15 whether a fee award constitutes a domestic support obligation. 16 See In re Gionis, 170 B.R. at 682. Instead, the bankruptcy 17 court “must look behind the state court’s award and make a 18 factual inquiry to determine whether the award is actually in 19 the nature of support.” Id. at 681. 20 “What constitutes support within the meaning of 21 [§] 523(a)(5) implicates a number of factors that are 22 potentially relevant on a case-by-case basis to this federal 23 question.” Id. at 682. For example, financial need is 24 indicative of support and “[t]he bankruptcy court may look to 25 5 In 2005, Congress amended § 523(a)(5) and (a)(15) and 26 added § 101(14A). The definition contained in § 101(14A) 27 substantively tracks the prior language in § 523(a)(5). See Rivera v. Orange Cty. Prob. Dep’t, 832 F.3d 1103, 1106 (9th Cir. 28 2016).
7 1 state law in determining whether the family court intended to 2 base the award on need.” Id. Another relevant factor is how 3 the debt is characterized under state law. In re Chang, 4 163 F.3d at 1140. 5 Here, the bankruptcy court relied on the Ruling in finding 6 that the family court awarded attorney’s fees as spousal 7 support. On this record, its finding was not illogical, 8 implausible, or without support in the record. 9 First, the family court recognized that, as a result of 10 Joni’s bankruptcy, it could decide only issues related to status 11 and spousal support. Given this express recognition in the 12 Ruling, it is implausible that the family court then engaged in 13 a division of assets or took any action with regard to awarding 14 fees that was not correctly characterized as support. Nothing 15 in the record establishes to the contrary. 16 Second, the Ruling reflects that there was a claim for 17 attorney’s fees made by one or both of the parties. Consistent 18 with its duties under California Family Code § 2030(b)(2),6 the 19 family court considered what was “‘just and reasonable under the 20 relative circumstances’ of the parties in connection with 21 6 22 California Family Code § 2030(b)(2) provides that: 23 When a request for attorney’s fees and costs is made, 24 the court shall make findings on whether an award of attorney’s fees and costs under this section is 25 appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able 26 to pay for legal representation of both parties. If 27 the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding 28 attorney’s fees and costs.
8 1 ‘determining how to apportion the overall cost of the litigation 2 equitably between the parties.’” Bk. Dkt. No. 130 at p. 14. As 3 part of its analysis, the family court considered, among other 4 things, income and expense documentation submitted by both of 5 the parties. It then ordered that the Debtor pay a portion of 6 Joni’s fees incurred in the marital dissolution proceeding and 7 directed that the Debtor “pay attorney’s fees incurred by [Joni] 8 directly to counsel for [Joni], Mr. Brian Moore, in the amount 9 of $3,500.00.” Id. 10 The plain text of the Ruling makes clear that the fee award 11 was directly related to the fees incurred by Joni during the 12 course of the marital dissolution proceeding and her ability to 13 pay these fees. In awarding fees, the family court considered 14 the disparity in income between the parties and awarded the fees 15 to Joni based on her financial need. This, in turn, constituted 16 an award in the nature of spousal support for the purposes of 17 §§ 523(a)(5) and 101(14A). 18 Contrary to the Debtor’s argument, it is irrelevant that 19 the fee award was payable directly to Brian Moore, Joni’s family 20 court counsel. The operative inquiry is whether the obligation 21 was based on the need of the Debtor’s ex-spouse. See Bendetti 22 v. Gunness (In re Gunness), 505 B.R. 1, 2, 7 (9th Cir. BAP 23 2014); In re Gionis, 170 B.R. at 679, 682-684; see also 24 In re Chang, 163 F.3d at 1141. And Joni had standing to object 25 to the exemption; if the Debtor does not pay Mr. Moore, Joni 26 will lose this element of support and will be required to pay 27 herself. The fees are owed to or recoverable by Joni even 28 though they are payable to her attorney because they are
9 1 reimbursement for her debt to her attorney. 2 Nor does it matter that the fee award was set forth in a 3 section of the Ruling separate from the determination of ongoing 4 spousal support. The form of the Ruling reflects a common 5 practice in any order or judgment awarding fees and costs. 6 It is also irrelevant that the family court referred to 7 California Family Code § 2030, et seq. within the fee award 8 section of the Ruling. Sections 4320 and 2030 are not mutually 9 exclusive provisions of the California Family Code. 10 Section 4320 relates to factors the family court must consider 11 in ordering spousal support; section 2030 supplies a basis for 12 an award of fees “[i]n a proceeding for dissolution of marriage 13 . . . and in any proceeding subsequent to entry of a related 14 judgment.” Cal. Fam. Code § 2030(a)(1). The need versus 15 ability to pay analysis of § 2030 reflects the analysis required 16 in § 4320 when considering a broader award of spousal support. 17 Further, the reference to California Family Code § 2030 in 18 the Ruling does not evidence an equalization payment with 19 respect to property division; instead, it relates to the family 20 court’s attempt to ensure parity between the former spouses and 21 equal access to legal representation in the marital dissolution 22 proceeding. See Mooney v. Super. Ct. of Santa Cruz Cty., 23 245 Cal. App. 4th 523, 535–36 (2016) (“The purpose of [a Cal. 24 Family Code § 2030] award is to provide one of the parties, if 25 necessary, with an amount adequate to properly litigate the 26 controversy.”); In re Marriage of Cryer, 198 Cal. App. 4th 1039, 27 1056 (2011) (“The purpose of [California Family Code §] 2030 is 28 to ensure parity. The idea is that both sides should have the
10 1 opportunity to retain counsel, not just (as is usually the case) 2 only the party with greater financial strength.”) (internal 3 quotation marks and citation omitted). 4 The Debtor’s references to In re Lopez, 405 B.R. 382, 384 5 (Bankr. S.D. Fla. 2009), and In re Spence, 2009 WL 3483741 6 (Bankr. S.D. Fla. Oct. 26, 2009),7 are also unavailing. First, 7 neither case is controlling or even particularly helpful as the 8 decisions discuss fee awards under Florida law. Second, in both 9 cases, the fee award involved a sanction based on the debtor’s 10 “bad-faith litigation misconduct” during the dissolution 11 proceeding. There is a difference between a typical sanction 12 award, which is not based on financial need, and a fee award, 13 where financial need is central to the analysis. The Ruling did 14 not award fees based on sanctionable conduct.8 15 The Debtor also alleges error in the bankruptcy court’s 16 failure to consider two letters from Joni’s family court 17 counsel. The bankruptcy court at the hearing told the Debtor 18 that one or both of the letters were not in the evidentiary 19 record before it. This was partially untrue; the Debtor 20 attached one of the letters (dated February 19, 2010) to his 21 reply to Joni’s opposition. That error, however, was harmless. 22 In the February 2010 letter, counsel instructs the Debtor 23 24 7 We assume that the Debtor’s references in his opening 25 brief are to these two particular cases. He did not provide a citation or other identifying information for either case, other 26 than the singular case name. 27 8 Sanctions in a marital dissolution proceeding are 28 imposed under California Family Code § 271.
11 1 that he should indicate in the memo line of the check that a 2 payment under the Ruling was for “attorney’s fees,” rather than 3 “alimony.” The Debtor previously made this error. This 4 instruction is not inconsistent with our conclusion that the 5 attorney’s fees were in the nature of support under §§ 523(a)(5) 6 and 101(14A). 7 As far as we can tell, the second letter - dated June 2010 8 - is not part of the record on appeal. It does not appear that 9 the Debtor presented this letter to the bankruptcy court in 10 connection with his motion to avoid lien. Thus, we do not 11 consider it on appeal. See Graves v. Myrvang (In re Myrvang), 12 232 F.3d 1116, 1119 n.1 (9th Cir. 2000) (“Absent that rare case 13 where the interests of justice demand it, an appellate court 14 will not consider evidence not presented to the trial court[.]”) 15 (citations and internal quotation marks omitted). 16 Finally, to the extent the Debtor argues that the 17 attorney’s fee claim should be disallowed, we reject his 18 argument. The only issue before the Panel for review on this 19 appeal is whether the bankruptcy court erred in denying the 20 Debtor’s motion to avoid lien - not whether the claim for 21 attorney’s fees should have been disallowed. That implicates an 22 entirely different section of the Bankruptcy Code and is not 23 within the appropriate scope of this appeal. 24 CONCLUSION 25 Based on the foregoing, we AFFIRM. 26 27 28