Memorandum of Decision Re: Attorney Fees as Support

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Decisions
IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re RICHARD M. RESTIVO,                                                                 No. 96-10377        Debtor. ___________________________/ GERTRUDE C. WEST,        Plaintiff,      v.                                                                                                   A.P. No. 96-1167 RICHARD M. RESTIVO,        Defendant. _____________________________/
Memorandum
     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 Cir.1978).      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 need.      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                                                                                                  _______________________                                                                                                                                            Alan Jaroslovsky                                                                                                                                            U.S. Bankruptcy