IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
|DO NOT PUBLISH
This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.
RICHARD M. RESTIVO, No. 96-10377
GERTRUDE C. WEST,
v. A.P. No. 96-1167
RICHARD M. RESTIVO,
Plaintiff Getrude West is the former lawyer of Chapter 7 debtor Richard Restivo. She
represented him in marital dissolution proceedings. In this adversary proceeding, she argues that
at least some portion of her unpaid legal fees is nondischargeable because they related to a child
custody dispute. She was not appointed by the court to represent the children.
The most serious defect in West's argument is the attempt to avoid the effect of the Appellate
Panel ruling in In re Linn
, 38 B.R. 762 (9th Cir.BAP 1984), by citing a bankruptcy court from
Texas. The latter is the opinion of one judge, which may or may not (in this case, not) have any
effect on this court in the absence of binding authority. The Appellate Panel decision is binding
law in this circuit.
Moreover, West does not have nearly as strong a case as the plaintiffs in Linn
. They were an
attorney and accountant appointed by the court to represent the children. West represented only
Restivo. The fact that her services may have benefitted the children does not turn her bill into
a debt owed to the children. Even if Linn
had been decided the other way, West would still not
have a valid case.
Section 523(a) specifies that the debt must be owed to a spouse or child to be
nondischargeable. The law has been interpreted as including the attorney of a spouse or child.
However, the court sees no justification for abandoning altogether the requirement that the debt
be to a spouse or child and reading the language out of the Code. Even the liberal construction
West urges does not result in a nondischargeable debt.
According to West's logic, if services to a debtor inured to the benefit of his children then the
debt is in the nature of support and not dischargeable under section 523(a)(5) of the Bankruptcy
Code, even though the language of the statute specifies that the debt must be to a spouse or child.
If the court were to adopt this logic, the door would be open to a lot more than just legal fees.
Groceries charged on a credit card would become nondischargeable to the extent consumed by
the debtor's children; unpaid rent would be nondischargeable if a child lived there. However, the
policy of federal bankruptcy law is to discharge debts, not find exceptions to discharge.
Exceptions to discharge are construed narrowly, not liberally. In re Houtman
, 568 F.2d 651 (9th
Moreover, West ignores case law which holds that even where the attorney's fees are payable
to a spouse, they must be pursuant to an award
based on need
before they are nondischargeable.
In re Gibson
, 103 B.R. 218, 221 (9th Cir.BAP 1989). In this case, the state court ordered that
each party was to bear its own attorney's fees. West has no award at all, let alone one based on
West admits that her claim based on section 523(a)(15) of the Code is meritless. The court
accordingly wastes no effort on it.
For the foregoing reasons, Restivo's motion to dismiss will be granted. If he feels that section
523(d) or FRBP 9011 is applicable, he may seek an award of attorney's fees.
Counsel for Restivo shall submit an appropriate form of order.
Dated: July 26, 1996 _______________________