David Anthony Baker

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
IN RE:
DAVID ANTHONY BAKER
DEBTOR
CASE NO.
12-01090-8-SWH
ORDER REGARDING OBJECTION TO CLAIM AND CONFIRMATION OF PLAN
The matters before the court are the debtor’s objection to the claim filed by Theresa Baker
(“Ms. Baker”) and Ms. Baker’s objection to confirmation of the debtor’s plan. A hearing took place
in Raleigh, North Carolina, on August 22, 2012. 	On September 20, 2012, the parties jointly
requested that the court defer ruling on the matters while settlement negotiations continued. On
October 17, 2012, the court was informed that the parties failed to reach a settlement, thus
necessitating this ruling.
BACKGROUND
The debtor and Ms. Baker were married on February 25, 1979, and they separated on or
about January 11, 2010. Sometime afterwards, Ms. Baker filed for a divorce decree in the Superior
Court of Chatham County, Georgia. On or about October 1, 2010, the superior court judge entered
SO ORDERED.
SIGNED this 12 day of December, 2012.
________________________________________
Stephani W. Humrickhouse
United States Bankruptcy Judge
____________________________________________________________
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a Final Judgment and Divorce Decree (the “Divorce Decree”) granting the parties a divorce. In the
Divorce Decree, the judge made numerous findings, some of which are summarized as follows:
– 	Two children were born to the debtor and Ms. Baker, both of
whom were adults at the time of the divorce proceeding.
However, one of the children was suffering from significant
mental health impairments and was living with Ms. Baker at
the time of the divorce proceeding.
– 	Ms. Baker is employed with the Effingham County School
system earning $4,035.67 per month.
– 	The debtor was earning approximately $9,710.00 per month
at the time of the divorce proceeding.
– 	The debtor has in the past been the “primary bread-winner in
the family” while Ms. Baker “taught school and has been
responsible for child care and housekeeping.”
– 	Ms. Baker currently resides in the marital home, which has a
fair market value of $352,000.00.
– 	The 	debtor 	and 	Ms. 	Baker 	owe 	a 	first 	mortgage of
$107,000.00 and a second mortgage of $100,000.00 on the
marital home.
– 	The debtor and Ms. Baker own a home in South Carolina
with an indebtedness totaling $130,000.00 and a fair market
value of $25,000.00.
– 	Ms. Baker currently possesses the parties’ 2008 Lexus. The
debtor possesses a 2001 Lexus. There is also an outstanding
loan for their son’s Ford Taurus.
– 	The debtor and Ms. Baker hold a time share in Maine, for
which the debtor is currently paying.
– 	The debtor and Ms. Baker are both obligated to repay their
son’s student loans totaling $27,484.00.
– 	A SunTrust credit card is held by both the debtor and
Ms. Baker totaling $13,600.00.
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– 	Ms. Baker has $28,086.00 in retirement earnings.
In the Divorce Decree, the judge also found that the debtor had incurred at least some of the
aforementioned financial burdens because of marital misconduct, and that he was capable of paying
alimony. The judge found that Ms. Baker was in need of support since her expenses exceeded her
income, and as a result, the debtor was ordered to pay Ms. Baker $1,750.00 per month as alimony
for support and maintenance, which must be paid until Ms. Baker reaches “age 65, dies or marries,
whichever shall first occur.”
In the paragraph immediately following the award of alimony in the Divorce Decree, the
judge gave Ms. Baker exclusive possession of the parties’ marital residence. 	Ms. Baker is
responsible for all expenses incurred in maintaining the residence, including the first mortgage,
taxes, insurance and utilities servicing the home. The debtor, however, is responsible for 70% of
the balance of the second mortgage, which is evidently a home equity line of credit (“HELOC”).
The debtor was also prohibited from incurring any more debt on the HELOC.
In the following paragraphs, the judge awarded Ms. Baker the time share in Maine, the 2008
Lexus, the 2005 Ford Taurus, the funds from the bank accounts in her name, the funds from her
retirement accounts, 30% of the funds in the debtor’s retirement accounts, as well as a Rolex watch
and other marital furnishings. The debtor was awarded exclusive possession of, and title to, the
property in South Carolina (the debtor was also responsible for all expenses in maintaining this lot,
including the mortgage), the 2001 Lexus, the funds from the bank accounts in his name, the
remaining 70% of his retirement accounts, as well as some other miscellaneous household items.
The debtor was then required to maintain a life insurance policy on his life in a minimum amount
of $200,000.00 of which Ms. Baker would be the beneficiary and owner.
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Finally, in the last paragraph of the order, the judge divided up responsibility for the joint
and individual debts that were unrelated to the mortgages. Each party would remain responsible for
their individual debts. For the joint debt on their son’s education loan, the debtor was obligated to
pay $38,478.30 and Ms. Baker was obligated to pay $16,490.70. The debtor was obligated to pay
the full balance of the parties’ joint debts on their credit card accounts.
On or around December 1, 2010, the superior court judge awarded Ms. Baker attorney’s fees
in the amount of $12,635.70 that were incurred because of the litigation related to the divorce
proceeding. In awarding these fees, the judge cited O.C.G.A. § 19-6-2(a)(1), which provides:
The grant of attorney’s fees as part of the expenses of litigation . . .
whether the action is for alimony, divorce and alimony, or contempt
of court arising out of either an alimony case or a divorce and
alimony case . . . shall be . . . [w]ithin the sound discretion of the
court, except that the court shall consider the financial circumstances
of both parties as a part of its determination of the amount of
attorney’s fees, if any, to be allowed against either party.
Relying on the fact that Ms. Baker made $4,035.67 per month and the debtor made approximately
$9,710.00 per month, the judge awarded the fees to Ms. Sutton. The debtor was ordered to pay these
fees within six months of the date of the order awarding such fees.
On February 11, 2012, the debtor filed for relief under Chapter 13 of the United States
Bankruptcy Code, and on February 12, 2012, the debtor filed his Chapter 13 plan. The plan provides
that the debtor will pay a total of $52,500 to the trustee in the amount of $875 per month for sixty
months. 	Within this amount, the plan provides for the repayment of $1,750 to Ms. Baker as a
domestic support obligation. Under the plan, however, the debtor will surrender his interest in the
marital residence and will not make any ongoing payments, or cure the delinquency, on the HELOC.
The general unsecured creditors will not receive anything under the plan.
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On April 20, 2012, the Chapter 13 trustee filed a motion to confirm the plan. On May 15,
2012, Ms. Baker filed an objection to the motion, asserting (1) that she is entitled to a domestic
support obligation in an amount greater than the $1,750 that is provided for in the plan, (2) that the
debtor is not contributing all of his disposable monthly income to the plan, and (3) that the plan is
not proposed in good faith. Shortly thereafter, Ms. Baker filed a proof of claim in the amount of
$86,440.45 	and 	stated 	that 	the 	full 	amount 	was 	entitled 	to 	first 	priority 	status 	under
11 U.S.C. § 507(a)(1)(A) as a domestic support obligation. Ms. Baker’s claim consists of (1) an
arrearage claim in the amount of $1,750 for the alimony awarded in the Divorce Decree (the
“Arrearage Claim”), (2) $70,804.75 based on the debtor’s obligation to pay 70% of the HELOC, and
(3) $13,885.70 in attorney’s fees awarded to Ms. Baker by the state court judge.
On July 7, 2012, the debtor filed his objection to Ms. Baker’s claim, asserting that the claim
was not a domestic support obligation and that the entire amount should be treated as a general
unsecured claim. 1 At the hearing on August 22, 2012, however, the debtor conceded that the
Arrearage Claim was in fact a domestic support obligation. The debtor maintained his argument,
however, that the obligation to pay the HELOC was a property settlement and not a support
obligation, and that a portion of the attorney’s fees should not be considered a support obligation
because not all of the fees were related to support payments.
Ms. Baker continued to insist that the entire amount of her claim is a domestic support
obligation entitled to first priority status. However, in the event that this court determines otherwise,
Ms. Baker, relying on prior bankruptcy cases in this district, argues that the plan was not filed in
1Although the debtor asserted in his objection that Ms. Baker’s entire claim should be treated
as a general unsecured claim, Schedule E of the debtor’s petition as well as his plan provide that the
Arrearage Claim is in fact a domestic support obligation.
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good faith because she is only receiving $1,750 out of her $86,440.45 claim, even though her entire
claim would be nondischargeable in a Chapter 7. See, e.g., In re Sewell, 2008 Bankr. LEXIS 4025,
at *3 (Bankr. E.D.N.C. Jan. 3, 2008) (finding that a Chapter 13 plan was not filed in good faith
because it provided no repayment of an ex-spouse’s claim when the entire claim would have been
nondischargeable under a Chapter 7 bankruptcy). Accordingly, the court must determine whether
the obligations for the HELOC and attorney’s fees are domestic support obligations. If the court
determines that either or both claims are not a domestic support obligation, but rather a general
unsecured claim, the court must then decide whether the debtor’s plan is filed in good faith when
it only provides Ms. Baker with $1,750 of her total claim.
DISCUSSION
Section 101(14A) of the United States Bankruptcy Code defines a “domestic support
obligation” as a debt that is:
(A) owed to or recoverable by —
(i) a spouse, [or] former spouse . . .
(B) in the nature of alimony, maintenance, or support . . . 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 	. . . and
(D) not assigned to a nongovernmental entity . . . .
Whether Ms. Baker’s claim is a domestic support obligation turns on whether the claim is
in the “nature of alimony, maintenance or support.” See In re Sewell, 2008 Bankr. LEXIS 4025,
at *3 (Bankr. E.D.N.C. Jan. 3, 2008) (“The issue usually comes down to . . . whether the claim is
one for alimony, maintenance or support or is one arising from a property settlement. . . .”). The
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burden of showing that a claim is in the nature of support is on the claimant. 	Tilley v. Jessee,
789 F.2d 1074, 1077 (4th Cir. 1986). If the claim arose from an agreement between the parties,
courts must determine whether the parties intended for the obligation to be in the nature of support
at the time the parties executed the agreement. 	See Tilley, 789 F.2d at 1078; In re Melichar,
661 F.2d 300, 303 (4th Cir. 1981); In re Alston, 2008 Bankr. LEXIS 2660, at *5 (Bankr. E.D.N.C.
August 22, 2008); Sewell, 2008 Bankr. LEXIS 4025, at *3-4. If the claim arose from a court order,
the issue is whether the court issuing the order intended for the obligation to be in the nature of
support. 	See In re Bowen, 2010 Bankr. LEXIS 1520, at *14 (Bankr. E.D.N.C. May 10, 2010)
(considering the findings made by the state court judge to determine whether that judge intended for
the obligation arising from the court order to be in the nature of support); In re Bennett, 2009 Bankr.
LEXIS 4398, at *4-7 (Bankr. E.D.N.C. February 9, 2009) (determining whether the state court
intended for a debt to be in the nature of support when the debt arose from a court order).
To determine the parties’ intention, or the court’s intention in cases where the claim arose
from a court order, the bankruptcy court should consider the terms of the agreement or court order,
but “labels given to the obligations are not controlling.” Alston, 2008 Bankr. LEXIS 2660, at *5;
see also Tilley, 789 F.2d at 1077-78; Sewell, 2008 Bankr. LEXIS 4025, at *4. Other relevant factors
to look at include:
the nature of the obligation, whether there are dependent children, the
relative earning power of the spouses and an indication that the
obligation was an attempt to balance it, the adequacy of the
dependent spouse’s support without the assumption of the obligation,
dependent spouse’s receipt of inadequate assets in settlement, status
of the obligation upon death or remarriage, timing of payments (lump
sum or periodic), the payee (direct vs. indirect), waivers of
maintenance, whether the obligation is modifiable, location of the
paragraph containing the obligation within the agreement (whether
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or not it is located within the property distribution section), and the
tax treatment of the obligation.
Alston, 2008 Bankr. LEXIS 2660, at *4-5; Sewell, 2008 Bankr. LEXIS 4025, at *4; Zeitchik v.
Zeitchik (In re Zeitchik), 369 B.R. 900, 904 (Bankr. E.D.N.C. 2007); Sawtelle v. Keech (In re
Keech), Adv. Pro. No. L-03-00109-8-AP, slip op. at 6-7 (Bankr. E.D.N.C. January 7, 2004).
The HELOC encumbers the marital residence in which Ms. Baker is, and was at the time of
the divorce proceeding, residing. The debtor and Ms. Baker have a son who, although an adult, has
significant mental health impairments. Their son is also currently residing in the marital residence
with Ms. Baker and was doing so at the time of the divorce proceeding. Accordingly, the obligation
to pay 70% of the HELOC is, in essence, one that provides Ms. Baker and her son with what many
courts have deemed to be a necessity of life, i.e. the obligation assists in the provision of shelter for
Ms. Baker and her son. See, e.g., In re Gianakas, 917 F.2d 759, 764 (3rd. Cir. 1990) (stating that
“provision for the family home is, together with food and transportation, one of the traditional
components of support and maintenance”); In re King, 461 B.R. 789, 794 (Bankr. D. Alaska 2010)
(stating that the “the mortgage payment provision constituted maintenance and support for the wife
and children of the debtor,” because “[s]helter is a necessity of life”). Many courts have concluded
that an obligation to make mortgage payments is in the nature of support by relying primarily, if not
exclusively, on the notion that the payments are assisting with the provision of shelter, or as some
courts have said, a necessity of life.2 Therefore, the nature of this obligation–one that helps
2In re Gianakas, 917 F.2d 759, 764 (3rd. Cir. 1990); Tatge v. Tatge (In re Tatge), 212 B.R.
604, 608 (8th Cir. BAP 1997); In re King, 461 B.R. 789, 794 (Bankr. D. Alaska 2010); In re
Bristow, 2005 Bankr. LEXIS 1117, at *17 (Bankr. M.D.N.C. April 22, 2005); In re Trump, 309 B.R.
585, 594 (Bankr. D. Kan. 2004); In re Batzek, 314 B.R. 464 (Bankr. M.D. Fla. 2004); Leslie v.
Leslie (In re Leslie), 181 B.R. 317, 320 (Bankr. N.D. Ohio 1995).
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Ms. Baker and her son remain in their home–strongly weighs in favor of concluding that it is in the
nature of support.
As previously mentioned, the debtor and Ms. Baker have a son who currently, and at the time
of the divorce proceeding, suffers from mental health impairments. At the hearing on August 22,
2012, Ms. Baker testified that prior to the divorce their son was diagnosed with bipolar disorder.
He underwent intensive therapy for the disorder, and his psychiatrist informed Ms. Baker that it was
in the son’s best interest to remain at home with a parent instead of living independently. Thus,
although their son was an adult at the time of the divorce proceeding, it is evident that he was still
highly dependent on his parents.
There was also a large disparity between the debtor’s and Ms. Baker’s income at the time
of the divorce proceeding, with the debtor making approximately $9,700 monthly and Ms. Baker
making approximately $4,030. In reference to their relative earning power, the state court judge
specifically described the debtor as the “primary bread-winner in the family,” and Ms. Baker as the
spouse that “taught school and has been responsible for child care and housekeeping.” 	This
characterization of each party’s respective role within the family suggests that the state court judge
was attempting to balance the unequal incomes and relative earning power between the debtor and
Ms. Baker with the Divorce Decree.
The amount of support Ms. Baker would receive under the Divorce Decree if the debtor was
not required to assume 70% of the HELOC obligation would seem inadequate given her own
expenses and obligations. Without the debtor’s assistance on the HELOC, Ms. Baker would be
forced to repay the entire balance on that obligation in addition to the expenses she is already
responsible for, such as the first mortgage on the marital residence, the indebtedness on the Maine
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time share, the indebtedness on her automobiles, 30% of the amount owed for her son’s educational
loans, and all other living expenses. Although Ms. Baker received certain assets pursuant to the
Divorce Decree, the only amount of actual support awarded to her was $1,750 per month in alimony.
This amount, even when considered with her annual salary, seems insufficient to cover all of her
current expenses plus the full amount of the HELOC obligation.
Ms. Baker provided an itemized account of her monthly income and expenses to support this
inadequacy. 3 The itemization is based on the fact that Ms. Baker is currently having to pay all
interest accruing on the HELOC due to the debtor’s current failure to contribute his share of the
obligation as required by the Divorce Decree.4 It shows that Ms. Baker’s average monthly income,
which includes her salary and the alimony, is insufficient to pay all of her expenses plus the full
amount of interest that accrues each month on the HELOC. These figures do not even take into
consideration the $70,000 in principal that Ms. Baker would ultimately be responsible for if the
Divorce Decree did not require the debtor to pay 70% of the HELOC obligation.
3Ms. Baker provided sample Schedules I and J to illustrate her current monthly income and
expenses. Based on these documents, her net monthly take home pay is $4,671.23 and her average
monthly expenses are $4,957.44, demonstrating that her expenses exceed her income by $286.21
per month.
4As stated previously, the Divorce Decree requires the debtor to pay 70% of the HELOC
obligation. The full amount of this obligation is approximately $100,000 plus $225 per month in
interest. 	The debtor, therefore, is responsible for approximately $70,000.00 in principal plus
$157.50 per month in interest. It is evident, however, that currently the only amount being paid
down on the HELOC is the $225 in interest accruing each month. Ms. Baker’s itemization only
includes the amount of interest she is currently having to pay each month, i.e. $225.00, which
includes the amount that the debtor should be paying each month to cover his share of the interest,
i.e. $157.50. It does not include the $70,000 in principal that Ms. Baker would eventually have to
pay if the debtor was no longer responsible for 70% of the HELOC obligation.
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The remaining factors, inability to modify, installment versus lump sum, direct versus
indirect payment, 5 position in the decree,6 and tax treatment, 7 are not strongly persuasive in either
parties’ favor. After analyzing the determinative criteria, there are certainly more factors suggesting
that the HELOC was intended to be for support than there are that suggest otherwise. 	More
importantly, however, is that the most indicative factors–the nature of the obligation, a dependent
child, disparity in earning power, and the inadequacy of other support–all support a conclusion that
the HELOC is in the nature of support.
The court must now consider whether the attorney’s fees awarded to Ms. Baker are in the
nature of support. Many courts have concluded that the award of attorney’s fees in a proceeding
related to a divorce decree or separation agreement is in the nature of maintenance or support. In
re Silansky, 897 F.2d 743, 744 (4th Cir. 1990); In re Joseph, 16 F.3d 86, 88 (5th Cir. 1994); In re
Spong, 661 F.2d 6, 8 (2d. Cir. 1981); In re Genovese, 1996 U.S. App. LEXIS 24046, at *5 (4th Cir.
September 12, 1996) (unpublished table decision); In re Forkish, 2010 Bankr. LEXIS 361, at *7-8
5The debtor testified that at some point in time he had been making payments to the bank,
but it is unclear whether this was before or after the Divorce Decree was entered. 	The debtor
admitted during his testimony that he did make at least one payment directly to Ms. Baker, and it
is apparent that this was in response to the Divorce Decree.
6The paragraphs are not labeled, although it is interesting to note that the HELOC debt was
divided in the paragraph immediately following the award of alimony, whereas most other debt is
dealt with in an entirely separate paragraph towards the end of the Divorce Decree.
7The evidence is unclear regarding the tax treatment for this obligation, both as to the debtor
and Ms. Baker. The debtor testified that he was deducting the HELOC payments sometime in 2010,
but the deduction was based on mortgage interest payments. The debtor has made relatively few
payments towards the HELOC obligation after the Divorce Decree, and it is unclear how those
payments have been treated for tax purposes. When asked during cross-examination, Ms. Baker
testified that she was unsure how these payments were being treated for tax purposes.
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(Bankr. E.D.N.C. February 2, 2010); In re Pennington, 2011 Bankr. LEXIS 4977, at *5-6 (Bankr.
W.D.N.C. Dec. 14, 2011).8
Out of these decisions, some courts have stated that the fees were in the nature of support
because they were related to a proceeding in which a support order or agreement was being
enforced. See, e.g., Forkish, 2010 Bankr. LEXIS 361, at *7. Other courts, as well as some circuit
courts, have stated that the fees were in the nature of support because the state court judge actually
intended for the fees themselves to be support, not because the fees merely related to the
enforcement of a support order or agreement. See Joseph, 16 F.2d at 88; Pennington, 2011 Bankr.
LEXIS 4977, at *5; In re Andrews, 434 B.R. 541, 549 (Bankr. W.D. Ark. 2010). For example, in
Joseph, the Fifth Circuit affirmed the bankruptcy court’s decision that the “attorney’s fee judgment
formed part of an overall economic arrangement” to provide the ex-spouse with needed support.
16 F.3d. at 87. The court held that the fees were in the nature of support because “the award itself
reflects a balancing of the parties’ financial needs,” not because the fees “tangentially relate[] to an
award of support and maintenance.” 16 F.3d at 88; see also Foiles, 1995 U.S. App. LEXIS 20753,
at *6 (4th Cir. August 7, 1995) (unpublished table decision) (adopting reasoning in Joseph); Bristow,
2005 Bankr. LEXIS 1117, at *20 (finding that attorney’s fees are in the nature of support when the
judgment “reflects the state court’s intent to balance the financial needs of the parties”).
8A majority of these cases were decided pre-BAPCPA and before the definition of a domestic
support obligation was added to the Code. However, these cases did consider and decide whether
attorney’s fees were in the “nature of support” for purposes of dischargeability under § 523(a)(5),
and their analysis is applicable to the issue of whether attorney’s fees fall under the definition of a
domestic support obligation. See In re Andrews, 434 B.R. 541, 545-46 (Bankr. W.D. Ark. 2010);
In re Poole, 383 B.R. 308, 313 (Bankr. D.S.C. 2007).
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The state court judge awarded the fees to Ms. Baker only after considering the financial
circumstances of both parties. Specifically, the judge stated that Ms. Baker made $4,035.67 per
month and the debtor made approximately $9,710.00 per month. He then awarded $12,635.70 of
attorney’s fees to Ms. Baker. In making this award, the judge rejected the debtor’s argument that
the fees should not be awarded to Ms. Baker because, as the debtor contended, she had already been
“awarded the majority of property as well as alimony . . . whereas he was awarded the majority of
debt.” Further, the judge cited O.C.G.A. § 19-6-2(a)(1) in awarding the fees, which requires the
judge to consider the financial circumstances of both parties before making an award. It is thus
apparent that the fee award was based on an attempt by the judge to balance the financial needs of
the parties, which has previously been accepted by other courts as a reason for finding that
attorney’s fees are in the nature of support. See, e.g., Joseph,16 F.3d at 88; Bristow, 2005 Bankr.
LEXIS 1117, at *20. 	Accordingly, the entire amount of the fee award is a domestic support
obligation, even if a portion of the fees may have been unrelated to support payments.
In sum, the court concludes that the full amount of the HELOC obligation and the attorney’s
fees are in the nature of support and are thus a domestic support obligation. The obligation to pay
the attorney’s fees arose from the state court order entered on December 1, 2010. Therefore, this
obligation had matured by the petition date and is thus an allowed claim pursuant to 11 U.S.C.
§ 502(b)(5). See 11 U.S.C. § 502(b)(5) (providing that a domestic support obligation is an allowed
claim unless the obligation has yet to mature by the date that the petition is filed). As an allowed
domestic support obligation, it is entitled to first priority status and must be provided for in full
through the plan before the plan can be confirmed, unless Ms. Baker agrees otherwise. 	See
11 U.S.C. § 507(a)(1)(A) (providing that a domestic support obligation that is an allowed claim is
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entitled to first priority status); see also 11 U.S.C. § 1322(a)(2) (“The plan shall . . . provide for the
full payment, in deferred cash payments, of all claims entitled to priority under section 507 of this
title, unless the holder of a particular claim agrees to a different treatment of such claim”).
It is apparent, however, from the HELOC loan documents and the evidence presented by
Ms. Baker that not all of the HELOC obligation had become due by the petition date. The amount
of the HELOC obligation, including interest, that had yet to become due by the petition date is not
an allowable claim pursuant to 11 U.S.C. § 502(b)(5). See White v. Bell (In re White), 212 B.R.
979, 984 (1997) (disallowing a domestic support obligation to the extent that some of the
obligation’s payments had yet to accrue, and thus had not become due, by the petition date); Stair
v. Shumate (In re Shumate), 42 B.R. 462, 464 (1984) (stating that alimony payments coming due
after the debtor’s petition in bankruptcy do not constitute an allowed claim).9 The amount that had
become due by the petition date is an allowed domestic support obligation claim and must be
provided for accordingly in the plan.
9Although the amount that had yet to become due by the petition date is not an allowed
claim, they constitute nondischargeable debt that may be enforced in state court. See 4 Alan N.
Resnick & Henry J. Sommer, Collier on Bankruptcy ¶ 502.03[6][a] (16th ed. rev. 2012) (“Section
523(a)(5) excepts from discharge debts of an individual debtor to a spouse, a former spouse or a
child of the debtor for alimony, maintenance or support. . . . The essence of a nondischargeable debt
is that the creditor holding such debt may proceed against the debtor following the filing of the
petition and may pursue after-acquired assets to vindicate the claim.”).
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In light of the court’s conclusion that the HELOC obligation and the attorney’s fees are
domestic support obligations, the court need not address Ms. Baker’s alternative argument that the
debtor’s plan was not proposed in good faith. Based on the foregoing reasons, the debtor’s objection
to Ms. Baker’s claim is ALLOWED in part and DENIED in part, and Ms. Baker’s objection to plan
confirmation is ALLOWED.
SO ORDERED.
END OF DOCUMENT
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Case 12-01090-8-SWH Doc 44 Filed 12/12/12 Entered 12/12/12 14:17:52 Page 15 of
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