Dinicola v. Slimak et al

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
In re:
KAREN DINICOLA,
Debtor.
____________________________
KAREN DINICOLA,
Plaintiff,
v.
MICHELLE L. SLIMAK,
Defendant.
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Case No. 10-19506
Chapter 7
Adversary Proceeding No. 10-1404
Judge Arthur I. Harris
MEMORANDUM OF OPINION 1
Before the Court are cross-motions for summary judgment. At issue is
whether the debt owed to the defendant, Michelle L. Slimak who was appointed
guardian ad litem to the debtor’s children, is nondischargeable pursuant to
11 U.S.C. § 523(a)(5). For the reasons that follow, the Court finds that the debt is
1This opinion is not intended for official publication.
The court incorporates by reference in this paragraph and adopts as
the findings and orders of this court the document set forth below.
This document was signed electronically on August 25, 2011, which
may be different from its entry on the record.
IT IS SO ORDERED.
Dated: August 25, 2011
_____________________________
Arthur I. Harris
United States Bankruptcy Judge
__________________________________________________________________________________________
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nondischargeable and grants summary judgment in favor of the defendant.
JURISDICTION
This is a core proceeding under 28 U.S.C. § 157(b)(2)(I). The Court has
jurisdiction over core proceedings under 28 U.S.C. §§ 1334 and 157(a)
and Local General Order No. 84, entered on July 16, 1984, by the United States
District Court for the Northern District of Ohio.
FACTUAL AND PROCEDURAL BACKGROUND
On August 18, 2006, Karen Dinicola (“debtor”) filed a petition for divorce
from David Whetstone. (Adv. Pro. Docket #18). On March 13, 2008, the Medina
County Common Pleas Court, Domestic Relations Division appointed Michelle L.
Slimak (“defendant”) guardian ad litem for the children of the debtor and her
former husband. (Adv. Pro. Docket #18). 	The defendant remained guardian
ad litem to the debtor’s children throughout the divorce proceedings and acted,
with the debtor’s consent, as a “parenting time coordinator” following the
completion of the divorce. (Adv. Pro. Docket #18).
On September 28, 2010, the debtor filed a voluntary petition under
Chapter 7 of the Bankruptcy Code. The debtor listed the defendant as an
unsecured creditor holding a nonpriority claim in the amount of $1,877.25. On
December 17, 2010, the debtor filed a complaint against the defendant asserting:
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1) that the obligation owed to the defendant is not in the nature of a domestic
support obligation as the term is defined under 11 U.S.C. § 101(14A), and 2)
unjust enrichment. (Adv. Pro. Docket #1). On January 17, 2011, the defendant
filed a motion to dismiss the unjust enrichment claim. (Adv. Pro. Docket #9). On
March 29, 2011, the debtor orally withdrew her unjust enrichment claim. On June
10, 2011, both parties filed motions for summary judgment. (Adv. Pro.
Docket #18 & #19). The debtor’s motion for summary judgment asserted that
guardian ad litem fees should be dischargeable debts under Chapter 7 of the
Bankruptcy Code. (Adv. Pro. Docket #18). The debtor argues that the guardian
ad litem debt is outside of the scope of the relevant statute and should be
dischargeable. The defendant’s motion for summary judgment contrarily asserts
that the Sixth Circuit and a majority of other jurisdictions have found guardian ad
litem fees nondischargeable. (Adv. Pro. Docket #19).
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56, made applicable to bankruptcy
proceedings by Bankruptcy Rule 7056, provides that a court shall grant summary
judgment “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to a judgment as a matter of law.” The party
moving the court for summary judgment bears the burden of showing that “there is
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no genuine issue as to any material fact and that [the moving party] is entitled to
judgment as a matter of law.” Jones v. Union County, 296 F.3d 417, 423 (6th Cir.
2002). See generally Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548
(1986). Once the moving party meets that burden, the nonmoving party “must
identify specific facts supported by affidavits, or by depositions, answers to
interrogatories, and admissions on file that show there is a genuine issue for trial.”
Hall v. Tollett, 128 F.3d 418, 422 (6th Cir. 1997); see, e.g., Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505 (1986) (“The mere existence of a
scintilla of evidence in support of the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff.”). In
determining the existence or nonexistence of a material fact, a court will view the
evidence in a light most favorable to the nonmoving party. Tennessee Dep't of
Mental Health & Mental Retardation v. Paul B., 88 F.3d 1466, 1472 (6th Cir.
1996).
Absent such evidence from the nonmoving party in a motion for summary
judgment, the court need not excavate the entire record to determine if any of the
available evidence could be construed in such a light. See Poss v. Morris (In re
Morris), 260 F.3d 654, 665 (6th Cir. 2001) (holding that the “trial court no longer
has the duty to search the entire record to establish that it is bereft of a genuine
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issue of material fact”); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d
1382, 1389 (6th Cir. 1993).
DISCUSSION
The Bankruptcy Code provides that a debtor filing a Chapter 7 voluntary
petition will be discharged of her debts “[e]xcept as provided by section 523 of this
title.” 11 U.S.C. § 727. Section 523 of the Bankruptcy Code provides for
exceptions to discharge of certain debts. The relevant statute provides in pertinent
part:
(a) A discharge under section 727 . . . of this title does not discharge an
individual debtor from any debt--
(5) for a domestic support obligation;
11 U.S.C. § 523(a)(5). The burden of proving that a debt falls within this
exception to discharge is on the creditor. Sorah v. Sorah (In re Sorah),
163 F.3d 397, 401 (6th Cir. 1998).
A “domestic support obligation” is a debt that “accrues before, on, or after
the date of the order for relief” that is “owed to or recoverable by a spouse, former
spouse or child of the debtor or such child's parent, legal guardian, or responsible
relative.” 11 U.S.C. § 101(14A)(A) (emphasis added). Section 523(a)(5) provides
four elements that must be satisfied to establish a domestic support obligation
claim: 1) the debt must be “owed to or recoverable by” a governmental unit or a
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person with a specific relationship to the debtor; 2) the underlying obligation must
be in the nature of support; 3) the obligation must arise from an agreement, court
order, or as otherwise defined; and 4) the debt must not be assigned to a
nongovernmental entity unless voluntarily done. 11 U.S.C. § 101(14A).
There is no question that the defendant had a specific relationship to the
debtor, that the obligation arose from a court order, and that the underlying debt
has not been assigned. Thus, it need only be determined whether the underlying
obligation is in the nature of support. Courts considering the issue pre-BAPCPA
agreed that guardian ad litem fees arising from divorce proceedings were in the
nature of support of the children. Falk & Siemer, LLP v. Maddigan (In re
Maddigan), 312 F.3d 589, 594 (2nd Cir. 2002) (“fees are inextricably intertwined
with proceedings affecting the welfare of the child”); Beaupied v. Chang (In re
Chang), 163 F.3d 1138, 1140-41 (9th Cir. 1998); Miller v. Gentry (In re Miller),
55 F.3d 1487, 1490 (10th Cir. 1995); Dvorak v. Carlson (In re Dvorak),
986 F.2d 940 (5th Cir. 1993); see also Hamilton v. Ross (In re Ross), 247 B.R. 333
(Bankr. M.D. Fla. 2000) ( “The services rendered by a guardian ad litem [are] so
inextricably intertwined with the welfare of the children . . . that it would be
unreasonable to characterize the fee award as anything other than an obligation in
the nature of support”) (quoting Spear v. Constantine (In re Constantine), 183 B.R.
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335, 336-37 (Bankr. D. Mass. 1995)); Lawson v. Lever, (In re Lever), 174 B.R. 936
(Bankr. N.D. Ohio 1991) (wife’s obligation for guardian ad litem fees
nondischargeable).
While the text of section 523(a)(5) has been modified, the test to determine
whether an obligation is in the nature of support remains unchanged. Compare
Goodwin v. Garnett, No. 04-34189, Adv. Pro. No. 04-3323 (Bankr. N.D. Ohio
March 3, 2005) (bankruptcy court judgment excepting guardian ad litem fees from
discharge under 11 U.S.C. § 523(a)(5)) with In re Andrews, 434 B.R. 541 (Bankr.
W.D. Ark. 2010) (debtor’s obligation to his wife’s divorce attorney was a domestic
support obligation because it was in the nature of support) and In re Rose,
08-30051, 2008 WL 4205364 (Bankr. E.D. Tenn. Sept. 10, 2008) (holding
guardian ad litem was assigned for the “support and maintenance of the child
during proceedings,” and fees were nondischargeable as domestic support
obligation).
Further, a majority of jurisdictions that have analyzed this issue
post-BAPCPA appear to agree that guardian ad litem fees are “domestic support
obligations” and nondischargeable under the Bankruptcy Code. See Levin v.
Greco, 415 B.R. 663, 665 (N.D. Ill. 2009); Law Offices of Miriam G. Altman v.
Johnson (In re Johnson), 445 B.R. 50 (Bankr. D. Mass. 2011); County of LaCrosse
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v. Stevens (In re Stevens), 436 B.R. 107 (Bankr. W.D. Wis. 2010); Epstein v.
Defilippi (In re Defilippi), 430 B.R. 1 (Bankr. D. Me. 2010); Kelly v. Burnes (In re
Burnes), 405 B.R. 654, 657 (Bankr. W.D. Mo. 2009); In re Johnson, 397 B.R. 289
(Bankr. M.D. N.C. 2008).
The debtor cites Kassicieh v. Battisti (In re Kassicieh), 425 B.R. 467 (Bankr.
S.D. Ohio 2010) in support of her argument that the guardian ad litem fees should
be discharged. However, the Kassicieh court did not decide whether guardian ad
litem fees should be excepted from discharge under 11 U.S.C. § 523(a)(5). In re
Kassicieh, 425 B.R. 467. The Kassicieh court provided an overview of relevant
case law and outlined the different interpretations of the applicable statute, but
ultimately decided to withhold ruling on dischargeability until the state court
determined the amount of guardian ad litem fees owed, and how the fees would be
divided. In re Kassicieh, 425 B.R. at 481. The facts before this Court are
distinguishable from Kassicieh, because in this case, the amount of fees awarded
and each parent’s allocation have been determined by the state court. Thus, the
question of dischargeability is ripe for determination.
This Court is persuaded by the extensive case law finding guardian ad litem
fees nondischargeable. The current facts involve a court appointed guardian ad
litem whose assigned duties were in the nature of support of the debtor’s children
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throughout the debtor’s divorce proceedings. Accordingly, the debt owed to the
defendant is a “domestic support obligation” excepted from discharge pursuant to
11 U.S.C. § 523(a)(5).
CONCLUSION
Based on the foregoing, this Court concludes that the guardian ad litem fees
are a nondischargeable “domestic support obligation” pursuant to 11 U.S.C.
§ 523(a)(5) and enters summary judgment in favor of the defendant.
IT IS SO ORDERED.
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