Mark T Boodee

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
IN RE:
MARK BOODEE
DEBTOR
CASE NO.
04-00505-5-ATS
ORDER DENYING MOTION TO SHOW CAUSE, DETERMINING DEBT IS
NONDISCHARGEABLE, AND DENYING REQUEST FOR ATTORNEY’S FEES
The matters before the court are the debtor’s motion for Lori
Boodee to show cause why the discharge injunction has not been
violated, and Lori Boodee’s request for a hearing on the debtor’s
motion and request for attorney’s fees. A hearing took place in
Raleigh, North Carolina on July 20, 2005.
Mark Boodee filed a petition for relief under chapter 7 of the
Bankruptcy Code on February 10, 2004, and received a discharge on
May 18, 2004. On January 25, 2005, Lori Boodee, the debtor’s former
spouse, filed a motion to show cause in the North Carolina District
Court for Wake County to compel Mr. Boodee to pay debts that Mr. Boodee
contends were discharged. Mr. Boodee filed a motion in this court on
February 11, 2005, for Ms. Boodee to show cause why the discharge
injunction was not violated.
On February 15, 2005, this court entered an order noting that the
crucial issue was whether the debts in question were discharged under
11 U.S.C. § 523(a)(5), and providing that because Judge Anne B.
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Salisbury in the state court had concurrent jurisdiction and was in the
best position to determine whether the fees awarded in her prior order
were in the nature of support, this court would defer any action on the
debtor’s motion until the state court determined whether the fees fell
within § 523(a)(5). Judge Salisbury entered an order on May 16, 2005,
finding that the attorney’s fees previously awarded to Ms. Boodee were
in the nature of support, but leaving the question of whether the fees
were nondischargeable for this court.
The question before the court remains whether the debts in
question were discharged under § 523(a)(5). Normally questions of
dischargeability are determined in adversary proceedings, see Rule
7001(6), Federal Rules of Bankruptcy Procedure. However, sometimes
these questions arise in other contexts. See, e.g., In re Collins,
173 F.3d 924 (4th Cir. 1999) (question of dischargeability determined
in connection with motion to reopen case). Here, whether Mr. Boodee’s
debt to Ms. Boodee was discharged must be determined to resolve the
motion before the court, which seeks sanctions for Ms. Boodee’s
violation of the discharge injunction.
Section 523(a)(5) provides that a debt is not discharged if it is
"to a spouse . . . or child of the debtor, for alimony to, maintenance
for, or support of such spouse or child, in connection with a
separation agreement, divorce decree, or other order of a court of
record . . . ." 11 U.S.C. § 523(a)(5). Judge Salisbury clearly held
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that the attorney’s fees she awarded in connection with the Boodees’
custody dispute were in the nature of support. Judge Salisbury
understood the importance of her finding with respect to the question
of dischargeability, and the court sees no reason to review that
determination. The debts are in the nature of support, and they are
nondischargeable. Because the debts were not discharged, Ms. Boodee
did not violate the discharge injunction when she pursued collection of
those debts, and sanctions are not appropriate.
Ms. Boodee seeks attorney’s fees for defending the debtor’s motion
to show cause, relying on North Carolina General Statute § 50-13.6.
That section allows a court to order payment of reasonable attorney’s
fees when the court finds that "the supporting party has initiated a
frivolous action or proceeding" in actions for custody and support of
minor children. Ms. Boodee contends that because the majority of
jurisdictions have concluded that attorney’s fees in custody cases are
in the nature of support, Mr. Boodee should have been aware that the
debts at issue were not discharged, and that his motion to show cause
was frivolous.
The court disagrees. Mr. Boodee was entitled to a determination
of whether the debts were discharged, and the motion he filed to bring
the issue before this court was not frivolous. Accordingly, Ms. Boodee
is not entitled to recover her attorney’s fees for defending the
motion.
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Based on the foregoing, the debtors’ motion to show cause is
DENIED because the discharge injunction was not violated. Ms. Boodee’s
request for attorney’s fees is DENIED. Mr. Boodee’s debt to Ms. Boodee
for attorney’s fees awarded in their custody proceeding in state court
is NONDISCHARGEABLE pursuant to 11 U.S.C. § 523(a)(5).
SO ORDERED.
DATED: July 20, 2005
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