Deeanna M. Brossoit

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1Unless otherwise stated, all further section references
herein are to the Bankruptcy Code, 11 U.S.C. § 101 et. seq., as
amended by the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 (“BAPCPA”).
Decision
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 07-42589-EDJ-7
Chapter 7
DEEANNA M. BROSSOIT,
Debtor./
DECISION
Deeanna M. Brossoit, the above debtor (“Brossoit”), has
objected to the priority claim in the sum of $16,538 filed herein by
attorney Deborah Jo Sandler (“Sandler”). 	Sandler contends that her
claim for certain attorneys’ fees Brossoit owes her is a “domestic
support obligation” as defined in Bankruptcy Code § 101(14A), 1 and
thus is entitled to a first priority pursuant to Bankruptcy Code
§ 507(a)(1)(A). 	Brossoit disagrees. 	The parties have submitted the
Signed: November 24, 2009

EDWARD D. JELLEN
U.S. Bankruptcy Judge

Entered on Docket
November 25, 2009
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 07-42589 Doc# 101 Filed: 11/24/09 Entered: 11/25/09 15:30:09 Page 1 of
10

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2The parties agreed that the court should decide the matter
on the record before it, without necessity of an evidentiary
hearing.
2	Decision
matter to the court for decision, 2 and the court now holds that the
debt at issue is not a domestic support obligation. 	The court will
therefore sustain Brossoit’s objection.
A. 	Background
Prior to the filing of her chapter 7 petition herein, Brossoit
was a Petitioner in a family law action in the California Superior
Court. 	In March of 2006, the Superior Court appointed Sandler to
act as counsel for Brossoit’s minor child to represent the child in
connection with various custody and visitation issues. 	The order
provided that Sandler’s attorneys’ fees were to be paid, 50% by
Brossoit and 50% by Mark Coons, the Respondent in that action
(“Coons”).
On July 24, 2007, the Superior Court entered an order providing
that each party was to pay half of Sandler’s counsel fees. 	The
order further provided that a $60,000 litigation fund was to be
created upon sale or refinance of the family residence, 50% of such
fund to be paid out of each party’s share of the sale or refinance
proceeds. 	Brossoit does not dispute that the Superior Court
intended that Sandler was to have access to that fund for payment of
her fees.
On August 16, 2007, Brossoit filed a chapter 7 petition. 	As of
that date, the residence had not been sold or refinanced, and thus,
the litigation fund was never established.
Case: 07-42589 Doc# 101 Filed: 11/24/09 Entered: 11/25/09 15:30:09 Page 2 of
10

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3Section 522(c)(1) provides:
(c) Unless the case is dismissed, property exempted
under this section is not liable during or after the
case for any debt of the debtor that arose, or that is
determined under section 502 of this title as if such
debt had arisen, before the commencement of the case,
except--
(1) a debt of a kind specified in paragraph (1) or (5)
of section 523(a) (in which case, notwithstanding any
provision of applicable nonbankruptcy law to the
contrary, such property shall be liable for a debt of a
kind specified in section 523(a)(5)).
4Section 101(14A) defines a “domestic support obligation”
as:
a debt that accrues before, on, or after the date of
the order for relief in a case under this title,
including interest that accrues on that debt as
(continued...)
3	Decision
Brossoit claimed her interest in the residence as her homestead
exemption, without objection. 	Eventually, the trustee in bankruptcy
sold the residence and paid Brossoit a portion of her homestead
exemption. 	Pursuant to order of this court, the trustee withheld
$16,538 from the homestead proceeds that would otherwise have been
paid to Brossoit, pending resolution of the present controversy.
B. Discussion
Generally, exempt property is not liable for payment of claims
in a bankruptcy case. 	Section 522(c). 	Section 522(c)(1), 3 however,
contains an exception for claims excepted from a debtor’s discharge
under § 523(a)(5).
Section 523(a)(5) excepts from a debtor’s discharge any debt
that is a “domestic support obligation.” 4
Case: 07-42589 Doc# 101 Filed: 11/24/09 Entered: 11/25/09 15:30:09 Page 3 of
10

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4(...continued)
provided under applicable nonbankruptcy law
notwithstanding any other provision of this title, that
is--
(A) 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 unit;
(B) in the nature of alimony, maintenance, or 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 expressly so designated;
(C) established or subject to establishment before, on,
or after the date of the order for relief in a case
under this title, by reason of applicable provisions
of-- (i) a separation agreement, divorce decree, or
property settlement agreement;
(ii) an order of a court of record; or
(iii) a determination made in accordance with
applicable nonbankruptcy law by a governmental unit;
and
(D) not assigned to a nongovernmental entity, unless
that obligation is assigned voluntarily by the spouse,
former spouse, child of the debtor, or such child's
parent, legal guardian, or responsible relative for the
purpose of collecting the debt.
4	Decision
Section 507(a)(1) creates a priority for
domestic support obligations that, as of the date of the
filing of the petition in a case under this title, are
owed to or recoverable by a spouse, former spouse, or
child of the debtor, or such child's parent, legal
guardian, or responsible relative, without regard to
whether the claim is filed by such person or is filed by a
governmental unit on behalf of such person . . .
/////
Case: 07-42589 Doc# 101 Filed: 11/24/09 Entered: 11/25/09 15:30:09 Page 4 of
10

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
5	Decision
Thus, if Brossoit’s debt to Sandler for her 50% share of
Sander’s attorneys’ fees and costs is a domestic support obligation
of the type described in § 507(a)(1), then Sandler is entitled to
receive the remaining $16,538 of impounded homestead proceeds.
Otherwise, Brossoit is entitled to the funds.
Prior to the enactment of BAPCPA, certain debts for child or
spousal support were nondischargeable under pre-BAPCPA § 523(a)(5),
and entitled to a seventh priority in payment under pre-BAPCPA
§ 507(a)(7). 	With respect to court-awarded fees owing to an
attorney on behalf of a spouse or child, it had been fairly well
established prior to BAPCPA that the fact that the fees were
payable to an attorney rather than “a spouse, former spouse, or
child of the debtor” did not preclude a finding that the fees were
in the nature of support, and thus, were nondischargeable and
entitled to the seventh priority. 	See, e.g., In re Chang, 163 F.3d
1138, 1141-42 (9th Cir. 1998).
Brossoit argues that pre-BAPCPA cases such as Chang have been
overruled by BAPCPA. 	In re Brooks, 371 B.R. 761 (Bankr. N.D. Texas
2007) so held. 	Another court, reversing the bankruptcy court
decision below, reached the opposite conclusion. 	Levin v. Greco,
415 B.R. 663 (N.D. Ill. 2009).
Here, the court need not reach this issue. 	Even assuming, most
favorably to Sandler, that BAPCPA did not overrule prior case law
with respect to the issue at hand, Brossoit’s objection to Sandler’s
priority claim should be sustained because, as discussed
///
Case: 07-42589 Doc# 101 Filed: 11/24/09 Entered: 11/25/09 15:30:09 Page 5 of
10

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
6	Decision
hereinafter, Brossoit’s debt to Sandler is not in the nature of
support.
In In re Gionis, 170 B.R. 675 (9th Cir. BAP 1994), the court
had occasion to discuss when court ordered attorneys’ fees should be
considered to be in the nature of support. 	The first non-exclusive
factor the court mentioned is need. 	“Support payments tend to
mirror the recipient spouse’s need for support.” 	Id. at 682,
quoting In re Shaver, 736 F.2d 1314, 1317 (9th Cir. 1984). 	The
second factor the court mentioned is the “intent of the state
court.” 	Id. 	The third factor the court mentioned is “the presence
of minor children and an imbalance of in the relative income of the
parties.” 	Id. quoting Shaver, 736 F.2d at 1316.
The BAP’s discussion in Gionis is consistent with its
observation in a prior case, In re Gibson, 103 B.R. 218 (9th Cir.
BAP 1989), wherein the court stated that “virtually all of the cases
look to the fact that the award of attorney’s fees was based upon
the need of the recipient spouse or the financial circumstances of
the parties in determining that the attorney fees are support.” 	Id.
at 221.
Here, there is no indication that need was a consideration of
the Superior Court when it ordered that Brossoit would be liable for
half of Sandler’s fees. 	Nor is there any indication that there was
any imbalance in the parties’ incomes that would give one party an
unfair litigation advantage in any disputes involving minor
children, as was the case in Gionis, 170 B.R. at 679-80. 	At oral
argument, Sandler conceded that neither need nor an imbalance of
Case: 07-42589 Doc# 101 Filed: 11/24/09 Entered: 11/25/09 15:30:09 Page 6 of
10

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
7	Decision
incomes was a factor in the Superior Court’s decision to require
each party to pay half of Sandler’s fees.
It is true that on February 13, 2009, after the date of
Brossoit’s bankruptcy petition, the Superior Court entered Findings
and Order after Hearing, paragraph 3 of which states: “With regard
to minor’s counsel’s fees that are pending before the bankruptcy
court, the court finds that said fees should be paid in full from
the bankruptcy court’s resources.” 	This court cannot ascertain how
such provision came to be included in the order. 	But the finding
does not state that it was intended as a child or spousal support
provision. 	Nor does it state that Sandler’s fees should be entitled
to priority over other debts in the bankruptcy case. 	The finding is
not accompanied by any independent findings that would suggest that
Sandler’s fees are in the nature of support, or that it was intended
by the Superior Court as anything other than an indication that the
court believed that Sandler should have a valid claim in the
bankruptcy case.
In any event, as the parties recognize, the issue of whether
Brossoit’s debt to Sandler is, or is not, for support is a federal
question to be decided by this court. 	Chang, 163 F.3d at 1140;
Gibson, 103 B.R. at 220.
This court’s independent review of the Superior Court record
submitted herein by the parties provides no indication that
Brossoit’s debt to Sandler was in the nature of support. 	Apart from
Brossoit’s bankruptcy schedules, which contain nothing suggesting
that her debt to Sandler is a support debt, the record herein does
Case: 07-42589 Doc# 101 Filed: 11/24/09 Entered: 11/25/09 15:30:09 Page 7 of
10

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
5Order after Hearing, filed July 24, 2007, paragraph 6c.
6Findings and Order after Hearing, filed July 24, 2007,
Paragraphs 9 and 10.
7Findings and Order after Hearing, filed September 27, 2007,
Paragraph 11.
8Indeed, in her Memorandum filed herein, Sandler stated that
Coons earned more than Brossoit at the time the Superior Court
ordered the payment of child support.
9Findings and Order after Hearing, filed September 27, 2007,
Paragraph 12.
8	Decision
not include any detailed information regarding the respective
incomes or financial positions of Brossoit and Coons. 	The above-
mentioned provisions that Brossoit and Coons were to each pay one-
half of Sandler’s fees, suggest that the debt at issue is not a
support debt. 	In a similar vein, the Superior Court ordered each
party to pay one-half of the minor’s therapy costs 5 and one-half of
any appraisal fees, expert fees, and litigation costs. 6 	The
Superior Court did order Brossoit to pay monthly child support to
Coons of $853, subsequently increased to $921 per month, 7 but that
appears to have been based on the fact that Coons was awarded
custody of their minor child, rather than need. 8 	This conclusion is
supported by the fact that the Superior Court did not award spousal
support to either party. 9
C. 	Conclusion
The weight of the evidence before the court showed that
Brossoit’s debt to Sandler is not a “domestic support obligation”
within the meaning of §§ 101(14A) and 507(a)(1)(A). 	Consequently,
Case: 07-42589 Doc# 101 Filed: 11/24/09 Entered: 11/25/09 15:30:09 Page 8 of
10

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
9	Decision
the court will issue its order sustaining Brossoit’s objection to
Sandler’s claim as a priority claim, and authorizing the payment to
Brossoit of the balance of her homestead exemption.
END OF ORDER
Case: 07-42589 Doc# 101 Filed: 11/24/09 Entered: 11/25/09 15:30:09 Page 9 of
10

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
10	Decision
COURT SERVICE LIST
Martha J. Simon, Esq.
Law Offices
155 Montgomery Street #1004
San Francisco, CA 94104
Michael J. McQuaid, Esq.
Carr, McClellan, Ingersoll,
Thompson and Horn
P.O. Box 513
Burlingame, CA 94011
Deborah Jo Sandler, Esq.
Law Office
1981 North Broadway, Suite 40
Walnut Creek, CA 94596
Case: 07-42589 Doc# 101 Filed: 11/24/09 Entered: 11/25/09 15:30:09 Page 10 of
10