Memorandum of Decision Re: Dischargeability of Child's Attorney's Fees

FOR THE NORTHERN DISTRICT OF CALIFORNIA In re MARGARET A. WHEAT,                                           No. 1-88-01248      Debtor. ___________________________/ JAN ERIC BOLT,      Plaintiff,     v.                                                                              A.P. No. 1-88-0134 MARGARET A. WHEAT,      Defendant. ______________________________/
Memorandum of Decision
     During the debtor's marital dissolution proceedings, the state court appointed attorney Jan Bolt to represent the children of the marriage. As the childrens' attorney, Bolt advised the court on such matters as custody, visitation, and what name the children should use. The court ordered each parent to pay one-half of Bolt's fees; the issue here is whether the debtor may discharge her obligation to Bolt in bankruptcy.      Bolt has cited Matter of Catlow (9th Cir.1981) 663 F.2d 960, and Shaver v. Shaver (9th Cir.1984) 736 F.2d 1314, in support of his position. However, the Court does not see the applicability of these cases, as neither dealt with the dischargeability of the fees of an attorney for the children in dissolution proceedings.      Bolt's position is supported by two reported bankruptcy cases, In re Coleman (Bkrtcy.W.D.Wis.1984) 37 B.R. 120, and In re Laney (Bkrtcy.N.D.Tex.1985) 53 B.R. 231. However, a contrary result was reached in In re Linn (9th Cir.BAP 1984) 38 B.R. 762. The latter decision is binding on this court. In re Crook (9th Cir.BAP 1987) 79 B.R. 475, 477n3.      According to Linn, the key issue is whether either the children or the debtor's former spouse is liable along with the debtor for the fees, so that their ability to support themselves might be jeopardized if they had to pay the debtor's share of the fees. Despite the fact that Bolt was apprised by the Court of Linn well before the trial, and despite his naked assertion to the contrary, not one bit of evidence was presented that anyone other than the debtor is liable for Bolt's unpaid fees. California Civil Code section 4606, which is the statutory basis for Bolt's appointment, states that the fees of court-appointed counsel for the children shall be paid in such proportions as the court deems just; the court order appointing Bolt merely says that his fees are to be shared equally by the parties. Nowhere in the statute or the order is there any provision that both spouses are liable for the entire amount of Bolt's fees. Since dischargeability matters are to be striclty construed in favor of the debtor, In re Houtman (9th Cir. 1978) 568 F.2d 651, the Court cannot infer the missing link in Bolt's case and must accordingly grant judgment to the debtor.      The Court notes that is not leaving Bolt without a remedy. In the event that Bolt is correct in his unsupported assertion that the debtor's former husband is jointly liable for the debtor's portion of Bolt's fees, then Bolt can collect his fees from the husband and the husband can seek to have whatever amount he has to pay to Bolt declared nondischargeable. The judgment this Court will issue is not meant to prejudice the rights of anyone other than Bolt.      This memorandum constitutes findings and conclusions pursuant to FRCP 52(a) and Bankruptcy Rule 7052. A separate judgment will be entered.
Dated: January 9, 1989                                                                              _____________________                                                                                                                      Alan Jaroslovsky                                                                                                                      U.S. Bankruptcy