Michael S. O'Brien

In re
MICHAEL S. O’BRIEN,
Debtor
U NITED STATES BANKRUPTCY COURT
D ISTRICT OF MASSACHUSETTS
Chapter 7
Case No. 05-30172-RS
MEMORANDUM OF DECISION
(CARLIN)
Introduction
Before the Court is a relief from stay motion (“Motion”) filed by the Debtor’s former
wife, Paula M. Carlin (“Carlin”) concerning a prepetition fee award of $15,000 in her favor
issued in post-divorce litigation between the Debtor and her (“Fee Award”). Carlin asks that the
Court (a) find that collection of the Fee Award from exempt property of the Debtor is not subject
to the automatic stay as a domestic support obligation or (b) if it is subject thereto, grant relief
for her to collect the Fee Award from such exempt property. The Debtor opposes the Motion.
For the reasons set forth below, I find that the Fee Award is a domestic support
obligation and therefore Carlin’s collection of the Fee Award from exempt property of the
Debtor is not subject to the automatic stay.
Procedural Status
On June 12, 2006, I held an evidentiary hearing on the Motion. I did so in accordance
with an order I issued on March 23, 2006. See In re O’Brien, 339 B.R. 529 (Bankr. D. Mass
2006). Having considered my prior order in this matter, the written submissions by the parties,
the testimony and exhibits at trial, and applicable law, I now render my decision.
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Background
The post-divorce litigation between Carlin and the Debtor concerned modifications to,
and alleged breaches of, the parties’ divorce decree and related separation agreement, primarily
as to child support matters. After trial, the probate court issued various rulings on the child
support issues and found (among other things) both the Debtor and Carlin guilty of contempt.
On December 2, 2005, the probate court issued the Fee Award on account of legal
services provided to Carlin by her lawyer in the litigation. The Fee Award was to be paid by the
Debtor from retirement accounts established and maintained for the Debtor through his
employment at the Massachusetts Institute of Technology (“Retirement Accounts”). The Debtor
commenced this Chapter 7 case on December 7, 2005, at which time payment of the Fee Award
had not been made. In his Chapter 7 case, the Debtor claimed the Retirement Accounts as
exempt (“Exemption Claim”). Carlin initially reserved her right to object to the Exemption
Claim but later withdrew that reservation. Neither Carlin nor any other party in interest filed an
objection to the Exemption Claim.
Discussion
The Debtor timely filed the Exemption Claim and no party in interest objected thereto.
Accordingly, the Retirement Accounts are exempt property and thus not property of the Debtor’s
bankruptcy estate. 11 U.S.C. §522(d) and 11 U.S.C.§522(I). The Fee Award is a domestic
support obligation in that it is a debt owed to or recoverable by Carlin on a child support matter
and has been established by order of the probate court. 11 U.S.C. §101(14A). See In re
Michaels, 157 B.R. 190, 193 (Bankr. D. Mass. 1993); In re Macy, 192 B.R. 802, 804 (Bankr. D.
Mass. 1996); and In re Hale, 289 B.R. 788, 791 (1st Cir. BAP 1998).
Because the Fee Award is a domestic support obligation, it is not subject to the automatic
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In view of my ruling, Carlin’s motion to extend the deadline for a complaint as to
discharge or exception to discharge is moot.
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stay to the extent Carlin seeks to collect it from the Retirement Accounts (or any other exempt
property of the Debtor). 11 U.S.C. §362(b)(2)(B). In addition, the Fee Award is a debt
dischargeable in the Debtor’s Chapter 7 case. 11 U.S.C. §524(a)(5).
Conclusion
For the foregoing reasons, the Motion is granted and Carlin may proceed to collect the
Fee Award from the Retirement Accounts.1
A separate order will issue.
Date: 	April 17, 2007 	__________________________________________
Robert Somma
United States Bankruptcy Judge
cc: 	Richard S. Ravosa, Counsel to Debtor
Jon H. Kurland, Counsel to Paula M. Carlin
Office of the United States Trustee
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