in Re : Christopher A. Trentadue v. Julie Gay

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3142
IN RE : C HRISTOPHER A. T RENTADUE ,
Debtor,
____________________
C HRISTOPHER A. T RENTADUE ,
Plaintiff‐Appellant,
v.
J ULIE G AY,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 15‐CV‐388 — J.P. Stadtmueller, Judge.
____________________
A RGUED FEBRUARY 11, 2016 — D ECIDED SEPTEMBER 14, 2016
____________________
Before R IPPLE , KANNE , and WILLIAMS, Circuit Judges.
KANNE , Circuit Judge. Plaintiff and debtor Christopher A.
Trentadue and his wife divorced in 2007, and as part of that
judgment, Trentadue and his then ex‐wife received joint le‐
gal custody of the couple’s six children. This arrangement

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2 No. 15‐3142
proved unworkable and resulted in protracted litigation
over custody and child support. The Wisconsin state court
overseeing the litigation determined that Trentadue’s con‐
duct resulted in excessive trial time to resolve the case and
awarded Trentadue’s ex‐wife $25,000 in attorney’s fees for
“overtrial.” The state court directed Trentadue to make the
payment directly to his ex‐wife’s attorney, Defendant Julie
M. Gay.
Trentadue never paid Gay. Instead, he filed a chapter 13
bankruptcy petition. Gay countered by filing a $25,000 claim
for the unpaid overtrial award and classified it as a non‐
dischargeable, domestic support obligation entitled to priori‐
ty. Trentadue objected that the obligation was imposed as a
punishment and therefore could not be a domestic support
obligation, but the bankruptcy court overruled his objection.
The district court agreed with the bankruptcy court after
Trentadue challenged its ruling. We find no error and affirm
the decision of the district court.
I. BACKGROUND
This case traces its roots to a May 2010 filing made by
Trentadue’s ex‐wife to modify placement and child support
related to one child. The filing ignited a contentious, three‐
year legal dispute over custody, placement, health insurance,
and child support that involved substantial motion practice,
requests for contempt findings, engagement of experts, and
evidentiary hearings. The Wisconsin state court handling the
case provided its oral decision on pending matters in No‐
vember 2012 and entered its Findings of Fact and Amended
Order in May 2013.

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No. 15‐3142 3
It was in this May 2013 order that the state court deter‐
mined that Trentadue committed “significant over‐trial” and
ordered that he “contribute $25,000 toward [his ex‐wife’s]
attorney fees.” In support of its finding, the state court ob‐
served the following: (1) Trentadue “expended a great deal
of trial time” pursuing the issue of where to send the chil‐
dren to high school; (2) the experts engaged by Trentadue
and a “significant number of witnesses called” on his behalf
“undercut his position;” (3) “[h]e raised issues that did not
need to be addressed” that “protracted the trial well beyond
what was necessary;” and (4) he “raised repeatedly” the
same issues to the court. In sum, the court determined “Tren‐
tadue’s desire to ‘win’ and control resulted in additional le‐
gal fees for [his ex‐wife].” The state court directed Trentadue
to pay the $25,000 directly to his ex‐wife’s lawyer, Gay. In the
same order, the trial court memorialized its findings with
regard to custody, placement, health insurance, and child
support, including evaluating each party’s ability to pay.
Trentadue appealed the ruling to the Wisconsin Court of
Appeals.
Meanwhile, in July 2013, Trentadue filed a petition for
bankruptcy under Chapter 13. Gay countered by filing a
claim for $25,000 and labeled it a priority, non‐dischargeable
domestic support obligation (“DSO”) under 11 U.S.C §
507(a)(1). Trentadue objected to the claim’s classification as a
DSO and argued it should be considered non‐priority and
unsecured because the trial court ordered the payment as
punishment, not support.
Before the bankruptcy court resolved Trentadue’s objec‐
tion, the Wisconsin Court of Appeals issued its decision in
November 2014 in which it affirmed the trial court’s order,

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4 No. 15‐3142
including the overtrial award. Trentadue appealed to the
Wisconsin Supreme Court, but it declined to hear his case.
In March 2015, the bankruptcy court overruled Tren‐
tadue’s objection and allowed Gay’s claim to be classified as
a DSO. The bankruptcy court determined that Trentadue’s
claim was not a punishment but was instead meant to “com‐
pensate for the harm he had done” to the children in the
form of an “expensive custody litigation” that would have a
negative financial and emotional impact on them. In re Tren‐
tadue, 527 B.R. 328, 334–35 (Bankr. E.D. Wis. 2015). Trentadue
appealed the bankruptcy court’s decision to the district
court, which affirmed the bankruptcy court’s ruling. This
appeal followed.
II. A NALYSIS
Trentadue advances two arguments as to why we should
reject the classification of his $25,000 debt to Gay as a DSO:
(1) the overtrial award can never be a DSO because it is not
payable to his spouse, former spouse, child, or a caregiver
and (2) the overtrial award was intended to be a punishment
and not in the nature of support. We address each argument
in turn.
A. Identity of the Payee
Trentadue argues that under 11 U.S.C. § 101(14A), the
identity of the payee is relevant to determining whether a
debt may be considered a DSO. Trentadue is correct. For a
debt to qualify as a DSO, it must satisfy all four require‐
ments under § 101(14A), including the requirement that the
debt be “owed to or recoverable by—(i) a spouse, former
spouse, or child of the debtor or such child’s parent, legal
guardian, or responsible relative; or (ii) a governmental

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No. 15‐3142 5
unit.” Trentadue argues that Gay’s debt is dischargeable be‐
cause it is payable to her, not to Trentadue’s spouse, former
spouse, child, or caregiver.
However, this issue is not relevant to this appeal. Tren‐
tadue did not raise this argument before the bankruptcy
court or the district court and therefore did not preserve it
for appeal. As we have explained:
It is axiomatic that issues and arguments which
were not raised before the district court cannot be
raised for the first time on appeal, except in rare
cases involving a jurisdictional question or if justice
demands flexibility. … To reverse the district court
on grounds not presented to it would undermine
the essential function of the district court.
Boyers v. Texaco Ref. & Mktg., Inc., 848 F.2d 809, 811–12 (7th
Cir. 1988) (internal quotation marks and citations omitted).
We have applied this rule in the bankruptcy context, In re
Kroner, 953 F.2d 317, 319 (7th Cir. 1992), and see no reason
why it should not exclude Trentadue’s argument from con‐
sideration here. Trentadue has not demonstrated that this
question is one of jurisdiction or how our application of the
rule would impose a grave injustice upon him. This argu‐
ment was available to him when he objected to Gay’s claim,
and the statute and law have remained static. Trentadue
elected not to pursue this possible avenue of relief. We de‐
cline to excuse our requirement and undermine “the effi‐
ciency, fairness, and integrity of the judicial system for all
parties.” Boyers, 848 F.2d at 812.
B. Classification of the Overtrial Award
We turn now to the argument that was raised before the
bankruptcy and district courts—that the overtrial award was

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6 No. 15‐3142
in the nature of punishment and not “support” under
§ 101(14A).
There is a dispute over the standard we should employ
when reviewing the bankruptcy court’s classification of
Gay’s debt. Trentadue contends that we should apply de novo
review to the “lower courts’ findings that the state court’s in‐
tent in awarding attorney’s fees was not punishment and that
attorney’s fees for overtrial is in the nature of support.” (Ap‐
pellant Br. 10 (emphasis added).)
Contrary to Trentadue’s contention, however, we do not
apply de novo review to the findings and determinations of
intent in the bankruptcy setting, as both are necessarily fact
questions. See In re Sheridan, 57 F.3d 627, 633 (7th Cir. 1995).
Rather, we review such fact findings and determinations for
clear error. Id. De novo review, on the other hand, is reserved
for the district and bankruptcy courts’ legal conclusions,
which would include decisions regarding the proper con‐
struction of a statute, Meyer v. Rigdon, 36 F.3d 1375, 1378 (7th
Cir. 1994), and whether an attorney can be a DSO payee un‐
der § 101(14A) in the first instance.
As we pointed out, Trentadue has failed to preserve this
latter argument for appeal. The standard we apply then to
the bankruptcy court’s classification determination is clear
error. “A finding is clearly erroneous when although there is
evidence to support it, the reviewing court on the entire evi‐
dence is left with the definite and firm conviction that a mis‐
take has been committed.” In re Thirtyacre, 36 F.3d 697, 700
(7th Cir. 1994) (internal quotation marks omitted).
DSOs are exempt from discharge in bankruptcy, see 11
U.S.C. §§ 1328(c)(2), 523(a), and entitled to priority, 11 U.S.C.

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No. 15‐3142 7
§ 507(a)(1)(A).1 As discussed above, four requirements must
be shown for a debt to be considered a DSO under the bank‐
ruptcy code. See § 101(14A). Only one of those four require‐
ments is at issue here, and it requires that for a debt to be
considered a DSO, it must be “in the nature of … support
(including assistance provided by a governmental unit) of
such spouse, former spouse, or child of the debtor or such
child’s parent, without regard to whether such debt is ex‐
pressly so designated.” § 101(14A)(B). Every circuit, includ‐
ing ours, that has actually confronted this question has rec‐
ognized that attorney fee awards can constitute “support”
under the bankruptcy code. Eden v. Robert A. Chapski, Ltd.,
405 F.3d 582, 588 (7th Cir. 2005); In re Rugiero, 502 F. Appʹx
436, 439 (6th Cir. 2012) (collecting cases).
Determining whether an attorney fee award is “in the na‐
ture of … support” is a question of federal bankruptcy law,
not state law. In re Reines, 142 F.3d 970, 972 (7th Cir. 1998). As
such, we are “not bound by the labels attached to the obliga‐
tion” under state law. Id. Rather, we employ a functional ap‐
proach that “look[s] beyond the language of a[n award] to
the intent of the parties and to the substance of the obliga‐
tion.” In re Goin, 808 F.2d 1391, 1392 (10th Cir. 1987).
1 Congress only recently codified the term “domestic support obligation”
in the Bankruptcy Abuse Prevention and Consumer Protection Act of
2005, Pub. L. No. 109‐8, 119 Stat. 23; however, the “term ’DSO’ … was
developed from the definition of a nondischargeable debt for alimony,
maintenance, and support in former Section 523(a)(5). Accordingly, case
law interpreting the former version of Section 523(a)(5) remains relevant
and persuasive here.” In re Papi, 427 B.R. 457, 462 n.5 (Bankr. N.D. Ill.
2010) (citations omitted).

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8 No. 15‐3142
For our purposes here though, we must look to the intent
of the state court in rendering its judgment and fee award, as
there is no settlement agreement between the parties at is‐
sue. See Cummings v. Cummings, 244 F.3d 1263, 1266 (11th Cir.
2001) (“[T]he bankruptcy court should have examined the
intent of the divorce court before making a determination
that no portion of the equitable distribution was in the na‐
ture of support.”). We analyze the following three factors to
determine the intent of a state court imposing a judgment in
a family‐court setting: “(1) the language and substance of [a
judgment] in the context of the surrounding circumstances,
using extrinsic evidence if necessary; (2) the parties’ financial
circumstances at the time of [the judgment]; and (3) the func‐
tion served by an obligation at the time of [the judgment].”
9D Am. Jur. 2d Bankruptcy § 3646 (2016) (citing In re Gianakas,
917 F.2d 759 (3d Cir. 1990)).
In our analysis, however, we remember that “exceptions
to discharge are to be [construed] strictly against a creditor
and liberally in favor of the debtor.” In re Morris, 223 F.3d
548, 552 (7th Cir. 2000) (internal quotation marks omitted).
However, the underlying policy of the provision exempting
DSOs from discharge “favors enforcement of familial sup‐
port obligations over a ‘fresh start’ for the debtor.” In re Mil‐
ler, 55 F.3d 1487, 1489 (10th Cir. 1995).
Turning to the first factor, the language from the state
court order makes clear that its intent in making the overtrial
award was to compensate Trentadue’s ex‐wife’s for “addi‐
tional legal fees” she incurred as a result of Trentadue’s “de‐
sire to ‘win’ and control” the proceedings. As noted earlier,
those proceedings involved issues of custody, placement,
health insurance, and child support. In ruling on the child

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No. 15‐3142 9
support issue, the state court had before it Trentadue and his
ex‐wife’s gross monthly incomes as well as their employ‐
ment situations, and therefore, a rough understanding of
each party’s financial picture.
An inference can be drawn from these facts that the state
court’s intent in ordering the overtrial award was to ensure
its handiwork in determining that the couple’s children had
adequate financial support was not disturbed by Trentadue’s
scorched‐earth approach to the litigation.
Further supporting this conclusion is that the state court
heard testimony regarding the legal fees Trentadue’s ex‐wife
incurred and had before it an affidavit detailing those fees
when it made the overtrial award. The affidavit provided
that Trentadue’s ex‐wife incurred $49,575 in legal fees. The
$25,000 overtrial award was not untethered to the harm
Trentadue wrought upon his wife and children’s financial
position. Indeed, the state court explicitly stated that it was
“satisfied” that $25,000 in fees “represent[ed] approximately
half of what the totality of [Trentadue’s ex‐wife’s] legal fees
are or will be, and that essentially they were generated be‐
cause of [Trentadue’s] response and handling of this case.”
Trentadue v. Trentadue, No. 2013AP1479, 2014 WL 4999456, at
*4 (Wis. Ct. App. Oct. 8, 2014). Calculating the actual cost of
the legal fees incurred further demonstrates the restorative
nature of the overtrial award and the effort undertaken by
the state court to further ensure that Trentadue’s children
were not harmed by his actions.
Trentadue argues that we should take a narrow view of
the reason for why the state court imposed the order. Ac‐
cording to Trentadue, the overtrial award was meant purely
to punish him, which is evidenced by the court’s extensive

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10 No. 15‐3142
discussion of his problematic litigation tactics and behavior
that could be characterized as “a classic case of contempt.”
He also advances the theory that the state court’s overtrial
order concerned only issues “relating to educational and
medical decision‐making—not custody.” (Appellant Br. 20.)
Trentadue’s view of the state court order is far too nar‐
row. When we look at the words of a judgment and order,
we look at the entire order and construe that judgment as a
whole to determine the court’s intent. To his first point, the
fee award is plainly not punitive. After discussing the rela‐
tive financial positions of the parties, the state court here
took into account how much Trentadue’s ex‐wife’s legal fees
were and split those fees in half. Such a judicial act has all
the hallmarks of a compensatory award meant to put Tren‐
tadue’s wife and his children in the same place they would
have been had Trentadue not pursued his overly litigious
course. If the state court award were truly “punitive,” it
would have imposed a fee separate and unrelated to his
wife’s legal fees and ordered them paid to the court. Cf.
Lightspeed Media Corp. v. Smith, No. 15‐2440, 2016 WL
3905605, at *6 (7th Cir. July 19, 2016) (explaining that crimi‐
nal contempt is “punitive” in nature and “meant to vindicate
the authority of the court.” (internal quotation marks omit‐
ted)).
As to his contention that the fee award was ordered only
because of his overzealous pursuit of issues related to educa‐
tion and medical decision‐making, the order itself under‐
mines this position. The state court found that he “raised is‐
sues that did not need to be addressed,” which “protracted
the trial well beyond what was necessary.” Similarly, the
court observed that Trentadue “raised repeatedly” the same

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No. 15‐3142 11
issues to the court. The state court did not tie these findings
to any specific issue in the litigation, and therefore, we will
not read them as limited to the issues of education and med‐
ical decision‐making. Rather, we read them as general com‐
ments about Trentadue’s overall approach to this litigation,
which, as discussed, involved issues of custody and child
support.
Trentadue argues we should rely on In re Lopez, 405 B.R.
382 (Bankr. S.D. Fla. 1998) and Estate of Mayer v. Hawe, 303
B.R. 375 (E.D. Wis. 2003) for the proposition that an award of
attorney’s fees in a family‐law dispute does not automatical‐
ly qualify as a DSO. While we do not disagree with this
proposition, 2 both cases do little to demonstrate that the
bankruptcy court here committed a clear error in finding the
fee award here was a DSO. In Lopez, the bankruptcy court
determined that a state court’s order requiring the husband
to pay attorney’s fees in connection with a dissolution pro‐
ceeding was not a DSO. In reaching this determination,
however, the bankruptcy court observed that the state court
order provided the “award of attorney fees and costs in fa‐
vor of the former Husband is based upon and supported by
the bad faith litigation misconduct of the former Wife, and is
not based upon the respective wages or ability of the parties to
pay.” In re Lopez, 405 B.R. at 385. The Lopez court heavily re‐
lied on this fact. The state court here, however, provided no
such explicit disclaimer with its overtrial award. Instead, it
imposed the award of attorney’s fees in conjunction with its
evaluation of the parties’ financial situations.
2 The bankruptcy court did not disagree with this proposition either.

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12 No. 15‐3142
Similarly, Mayer is also of no assistance. There, the issue
decided in the state court was the possible removal of a
guardian and the terms of a guardianship, and the fees im‐
posed on the offending litigant related to the “inefficient and
wasteful use of limited judicial resources,” which also
caused “the Ward and Guardian to incur unnecessary and
repeated expenses and attorney fees, serving no apparent
legitimate purpose.” 303 B.R. at 376 (internal quotation
marks omitted). The district court determined the bankrupt‐
cy court erred in determining the debt was a DSO because
the “probate court’s order had nothing to do with” support
and “was meant to sanction her for initiating improper liti‐
gation” Id. at 379. Unlike Mayer, the overtrial order here is
intertwined with issues related to financial support, includ‐
ing child support and health insurance. As discussed above,
the obvious inference that can be drawn from the state
court’s order is that it was taking a holistic view of the cou‐
ple’s financial position and making sure that its distribution
of child support was not undermined by the costly legal tac‐
tics employed by Trentadue.
As for the second factor, Trentadue contends that the
state court “ignored [Trentadue’s] ability to pay.” (Appellant
Br. 15.) This assertion is simply not borne out by the record.
As the bankruptcy court observed, the state court detailed
Trentadue and his ex‐wife’s “comparative economic circum‐
stances.” In re Trentadue, 527 B.R. 328, 334 (Bankr. E.D. Wis.
2015). That review included a discussion of their gross
monthly income, how much child support Trentadue had
paid in the past, and the steadiness of each party’s employ‐
ment.

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No. 15‐3142 13
Another element of the state court’s order suggesting it
took the parties’ financial situation into account is that it or‐
dered Trentadue to make the overtrial award payment in
one lump sum. While Trentadue contends this fact does not
support an inference of support (in fact, he believes it makes
the award more punitive in nature), we have a different
view. A more plausible inference from the state court’s order
is that it knew Trentadue and his ex‐wife’s financial situa‐
tion, and that his ex‐wife may not be able to afford to pay a
$50,000 legal bill. So, instead of spreading the costs of the
unnecessary fees out over several months like a traditional
support payment, the state court imposed the same burden
on Trentadue that his ex‐wife faced in paying her attorneys
for the needless litigation. And, if the bankruptcy court were
to have discharged Trentadue’s debt, then his ex‐wife may
still have been responsible for the fee award under a quan‐
tum meruit theory. See In re Kline, 65 F.3d 749, 751 (8th Cir.
1995) (analyzing the same concern).
Finally, we turn to the function of the obligation, which in
this case is the overtrial award. Trentadue contends the func‐
tion of any overtrial award in Wisconsin is to punish the liti‐
gant for an “unreasonable approach to litigation.” (Appel‐
lant Br. 14 (quoting In re Attorney’s Fees in Yu v. Zhang, 637
N.W.2d 754, 760 (Wis. Ct. App. 2001)). But as Trentadue him‐
self recognizes, the court in Zhang explained that the award
“furthers two objectives, providing compensation to the overtrial
victim for fees unnecessarily incurred and deterring unneces‐
sary use of judicial resources.” Id. (citations omitted) (em‐
phasis added). So, it is not meant to just “punish;” rather, it
is intended to be restorative, too. In fact, the Zhang opinion
does not use the word “punish” once in the opinion, nor
does it use the word “punitive.”

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14 No. 15‐3142
We need not, however, get bogged down in labels or
characterizations regarding how a state law classifies a par‐
ticular debt, In re Goin, 808 F.2d at 1392, and must instead
focus on the function intended by the state court in imposing
the debt. See Cummings, 244 F.3d at 1266. Here, the bankrupt‐
cy court determined the following regarding the function of
the award:
[T]his award was directly related to his unneces‐
sarily protracted litigation over the welfare of his
children and the detrimental effect of his conduct
on them. The purpose was to compensate for the
harm he had done, but it was not punishment per
se.
In re Trentadue, 527 B.R. at 334. Later, the bankruptcy court
further expounded upon what it believed to be the harm suf‐
fered by the children, stating that “[w]hile the children’s
mother may be a better provider than the debtor, taking on
expensive custody litigation will invariably have an adverse
effect [sic] on the children, both financially and emotionally.”
Id. at 335.
There was no error in finding that the state court intend‐
ed to remedy the financial harm caused by Trentadue’s con‐
duct in the litigation, which, as we have repeatedly stated,
involved custody and child support issues. Under these cir‐
cumstances, the fee award is in the nature of support.
Trentadue attempts to circumvent this conclusion by di‐
recting us to the Eighth Circuit’s decision in Adams v. Zentz,
963 F.2d 197 (8th Cir. 1992), where it reversed the district
court and approved the bankruptcy court’s conclusion that a
fee award was not a support obligation because it focused on
the mother’s conduct toward the father. There, the Eighth

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No. 15‐3142 15
Circuit based its decision on whether the nature of the cus‐
tody action at issue focused on the child’s health or well‐
being, and it determined that it did not. Id. at 199–200.
Zentz is inapposite. Looking at the order as a whole, the
state court judge was focused almost entirely on the welfare
of Trentadue’s children, including issues related to education
and health insurance. And, of course, there was extensive
discussion of the support obligations. While it is true that the
court did discuss Trentadue’s inappropriate conduct, it only
did so in the context of justifying the imposition of a restora‐
tive award it imposed to compensate for the harm done to
his ex‐wife and children’s financial position.
Trentadue’s reliance on In re Lowther, 321 F.3d 946 (10th
Cir. 2011) is also misplaced. There, the Tenth Circuit ob‐
served that “unusual circumstances” justified a bankruptcy
court’s determination that a fee award warranted discharge.
The debtor in Lowther had $893 in monthly income and a
child support obligation of $167 per month. The Tenth Cir‐
cuit determined that forcing him to pay the $9,000 fee award
“would essentially negate the support payments awarded by
the state court for at least five years and would clearly affect
her ability to financially support the child.” Id. at 949.
Trentadue’s financial situation here is not so bleak—his
income ranged between six and seven thousand dollars a
month. Further, the bankruptcy court had all the facts con‐
cerning Trentadue’s financial situation before it and deter‐
mined that similar “unusual circumstances” were not pre‐
sent. That was not clear error.

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16 No. 15‐3142
Accordingly, we find that the district court did not err in
approving the bankruptcy court’s determination that the
Gay’s fee award was a DSO.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.

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