Moreno v. Moreno

43 Va. Cir. 576, 1997 Va. Cir. LEXIS 442

• Court: Loudoun County Circuit Court
• Decided: November 18, 1997
• Docket: Case No. (Chancery) 15059
• Status: Published

Opinion

By Judge James H. Chamblin

After consideration of the argument of counsel on November 7, 1997, and die authorities cited, Mr. Moreno’s motion to dismiss is denied because an award of attorney’s fees in a child support enforcement proceeding may be excepted from discharge under § 523(a)(5) of the Bankruptcy Code.

The parties were divorced by decree of Ms Court entered July 20, 1993. The final decree incorporated a property settlement agreement which included provisions for the payment of child support by Mr. Moreno. In 1995, Ms. Moreno secured a rule to show cause against Mr. Moreno for bis alleged Mure to comply with the agreement, including Ming to pay child support After a hearing in November 1995, he was found in contempt for, among other firings, the Mure to pay child support as required by fee agreement Ms. Moreno was awarded $5,197.50 in attorney’s fees for prosecuting fee rule.

Mr. Moreno has not paid fee attorney’s fees awarded, in September 1996, he filed a Chapter 7 bankruptcy petition. He received a discharge in bankruptcy. In an adversary proceeding brought by Ms. Moreno, fee bankruptcy court, for procedural reasons, declined to rule on whether fee attorney’s fee award is dischargeable. Thereupon, Ms. Moreno filed a motion in this Court &r a determination of fee dischargeability of fee attorney’s fee award, and, if not dischargeable, to order Mr. Moreno to pay fee award or for a judgment for fee award against him. Mr. Moreno filed fee motion to dismiss claiming that fee attorney’s fees were properly discharged in bankruptcy.

Counsel have cited no Virginia state court cases on die issue. However, they have cited many bankruptcy cases, many of which are from the Fourth Circuit and the Eastern District of Virginia. It is clear that in both the Fourth Circuit and die Eastern District, attorney’s fee awards in divorce proceedings are excepted from discharge under § 523(a)(5). Roberson v. Roberson (In re Roberson), 187 Bankr. 159, 164 (Bankr. E.D. Va. 1995). Because discharge is favored by die Bankruptcy Code, the burden is upon the parent objecting to discharge to prove that die attorney’s fees awarded are actually in the nature of child support See, Tilley v. Jessee, 789 F.2d 1074, 1077 (4th Cir. 1986). The proof must be by a preponderance of the evidence. Grogan v. Garner, 111 S. Ct. 654, 662 (1991).

The question of whether or not a debt is in die nature of child support is largely a question of intent. Beaton & Hart v. Zerbe (In re: Zerbe), 161 Bankr. 939, 941 (Bankr. E.D. Va. 1994). If a judge has made the decision that one party must pay another’s attorney’s fees, it is die intention of the judge that controls. Beaton & Hart at 941.

Although arguably Ms. Moreno’s motion could be decided solely by me without die need of any evidence (1 could simply state my intention in making the attorney’s fee award), the general bankruptcy law seems to require an evidentiary hearing where the preponderance of the evidence standard applies. Therefore, if either party desires to present evidence, then an evidentiary hearing null be scheduled

Mr. Moreno’s motion to dismiss is denied I cannot find that, as a matter of law, the attorney’s fee award was discharged in bankruptcy.