Anastasoff v. Belleville (In re Belleville)

584 B.R. 854

IN RE: Nancy L. BELLEVILLE, Debtor.

John W. Anastasoff, Plaintiff,

v.Nancy L. Belleville, Defendant.

Case No. 12–82426

Adv. No. 16–8041

United States Bankruptcy Court, C.D. Illinois.

Signed May 9, 2018

Jeremy Stewart Karlin, Barash & Everett LLC, Galesburg, IL, Justin Raver, Barash & Everett LLC, Kewanee, IL, for Plaintiff.

Christopher W. Kanthak, Galesburg, IL, for Defendant.

OPINION

Thomas L. Perkins, United States Bankruptcy Judge

This matter is before the Court on cross-motions for summary judgment. The issue concerns the nondischargeability of a money judgment entered by an Arizona divorce court in favor of John Anastasoff and against Nancy Belleville, the debtor in the above-referenced Chapter 7 bankruptcy proceeding filed in the United States Bankruptcy Court for the Central District of Illinois.

Prior to 1994, Mr. Anastasoff and Ms. Belleville were married, had children together including a daughter, Savannah, and were residing in Mohave County, Arizona. In 1994, Ms. Belleville filed for a divorce in the Superior Court of Arizona for the County of Mohave. In 1996, the parties agreed to the terms of custody and visitation, with Ms. Belleville having custody of Savannah and Mr. Anastasoff having visitation rights.

Thereafter, substantial litigation occurred in the Arizona divorce proceeding concerning the issues of custody, support and visitation with respect to Savannah, and in particular whether Ms. Belleville was wrongfully preventing Mr. Anastasoff from exercising his visitation rights with Savannah. The parties have submitted a selection of pleadings and orders entered in the divorce case in 2005, 2006 and 2007. A brief summary of those documents follows.

On June 8, 2005, Judge Gurtler heard evidence on the issue of the enforcement of Mr. Anastasoff's visitation rights with Savannah. In a minute order, he made a finding that Ms. Belleville had willfully, intentionally and maliciously interfered with Mr. Anastasoff's parenting time and visitation rights, and found Ms. Belleville to be in contempt of court. He set a specific visitation schedule that Ms. Belleville was ordered to comply with in order to purge the contempt finding. He further ordered that Ms. Belleville was to pay 100% of all visitation costs. He further ordered that should Ms. Belleville not comply with the court's order and purge the contempt, that custody of Savannah would be awarded to Mr. Anastasoff and Ms. Belleville would then be required to pay child support in the amount of $268 per month. A written order to this effect was entered by Judge Gurtler on June 10, 2005. Judge Gurtler's minute order further reflects that Mr. Anastasoff was awarded attorney fees and costs of $4,000 as well as a credit for overpayment of child support of $1,528.

A number of other hearings were held and orders entered in the divorce case during the latter half of 2005 and through 2006, dealing with the issues of Mr. Anastasoff's visitation rights with Savannah, the potential change of custody, and the issue of child support payments. Mr. Anastasoff's attorney filed a petition on December 12, 2006 reciting the history of the litigation over this time period, alleging that Mr. Anastasoff had still not seen Savannah "for years," and seeking an additional award of attorney fees and costs.

On March 5, 2007, Judge Gurtler held another hearing on the issues of custody, visitation and support at which Savannah testified. In an order filed on March 13, 2007 he determined that Ms. Belleville had withheld visitation from Mr. Anastasoff and "that the loss of the ability to parent and have a relationship with the child as a direct result of the conduct of the petitioner," Ms. Belleville, "is a sufficient basis in and of itself to change custody." He found Ms. Belleville to be in contempt of court for withholding visitation. Judge Gurtler ordered that the parties were awarded joint legal custody of Savannah, and further ordered that Savannah would return to the State of Arizona beginning March 30, 2007, whereupon Mr. Anastasoff would have primary physical custody through the end of the summer break. He further ordered that there would be no child support paid by either party. And finally, he ordered Mr. Anastasoff's attorney to file an affidavit for attorney fees and costs which the court would then take under advisement along with a request for reimbursement of certain expenses.

One week later, on March 20, 2007, Judge Gurtler entered an order awarding attorney fees and costs to Mr. Anastasoff in the amount of $18,000 along with reimbursement of expenses in the amount of $2,212, entering a judgment in favor of Mr. Anastasoff and against Ms. Belleville for those amounts, with interest to accrue upon any unpaid balance at 10% per annum.

Shortly thereafter, on April 9, 2007, Judge Gurtler entered another written order entitled "order re custody, visitation, child support, contempt, and costs." The order refers to the same evidentiary hearing previously held on March 5, 2007. The April 9 order contains findings that the "orders herein are appropriate and are in Savannah's best interest." It also finds Ms. Belleville to be in contempt of court for her continued violation of the visitation orders, that sanctions are appropriate in the form of attorney fees and for reimbursement of Mr. Anastasoff's expenditures, as well as the possibility that the court might issue a bench warrant for Ms. Belleville should she continue to refuse to comply with the court's orders.

The April 9 order repeats the award of joint legal custody of Savannah and goes on to recite a very specific schedule that is to be followed with respect to the joint custody through the remainder of 2007. The order provides that the parties are to share Savannah's travel expenses equally. It also provides as follows: "Neither party shall pay child support to the other. Any child support order to the contrary is hereby vacated." Finally, the order directs Mr. Anastasoff's attorney to prepare an affidavit and application for attorney fees for the court to consider along with the previously submitted accounting of funds expended by Mr. Anastasoff, for the court to "determine an appropriate sanction for petitioner's misconduct."

Months later, on December 11, 2007, the Arizona court heard arguments on Mr. Anastasoff's motion to offset the balances due between the parties. The judge on this occasion was Michael Burke. Judge Burke entered an order on December 26, 2007 that states that he reviewed the file, including past judgments awarded to Mr. Anastasoff by Judge Gurtler, as well as the accountings provided by Mr. Anastasoff, as well as the latest calculations of child support arrears and interest owed Ms. Belleville by Mr. Anastasoff. The order determines that Ms. Belleville owed Mr. Anastasoff the sum of $29,681, consisting of the judgment amount of $20,212 previously entered on March 20, 2007, interest through December 1, 2007 of $1,567, unreturned child support paid by Mr. Anastasoff, attorney fees in the amount of $4,625 and court costs of $90.

Judge Burke's order determined that Ms. Belleville was due the sum of $10,189.08 for past child support and interest. The order nets out the offsetting amounts resulting in a net amount due Mr. Anastasoff from Ms. Belleville of $19,491.92. The order awards "final judgment" in that amount in favor of Mr. Anastasoff with interest to accrue at 10% per annum. It is this judgment entered December 26, 2007 for which Mr. Anastasoff is seeking a determination of nondischargeability.

ANALYSIS

Section 523(a)(5) of the Bankruptcy Code excepts from discharge any debt for a domestic support obligation. As set forth in section 101(14A) of the Bankruptcy Code, the definition of "domestic support obligation" requires that four elements be established with respect to a debt in order for it to be determined that the debt is a domestic support obligation. The only element challenged by Ms. Belleville is whether the Arizona judgment is "in the nature of support" of Savannah. The other elements are conceded.

In her motion for summary judgment, Ms. Belleville contends that attorney fees may be determined to be in the nature of support only if the proceedings in which the attorney fees were incurred involve, at least in part, the issue of child support payments. She contends that the issues before the Arizona court that resulted in the judgment entered on December 26, 2007 involved only issues of visitation or parenting time, not child support payments, so that the judgment should not be considered to be in the nature of support. Ms. Belleville relies upon Adams v. Zentz , 963 F.2d 197 (8th Cir. 1992) and this Court's decision in In re Hudson , 2007 WL 4219421 (Bankr. C.D. Ill.).

Adams v. Zentz is the first of several circuit court opinions that address the issue of the dischargeability of attorney fee awards in divorce cases resulting from litigation over child custody and visitation. Like the case at bar, Adams v. Zentz involved a divorce proceeding where the mother of a child sought to frustrate the father's exercise of his visitation and custody rights. Litigation ensued over a three-year period resulting in the court ordering the mother to pay the father $7,500 for his attorney fees. When the mother filed for bankruptcy relief, the father filed a nondischargeability complaint under section 523(a)(5) alleging that the debt was in the nature of support. The bankruptcy court rejected the father's arguments and ruled that the debt owed by the mother was dischargeable. Taking a narrow view of "nature of support," the bankruptcy court concluded that the attorney fees were not related to the financial support of the child, and that the custody battle was unrelated to the child's health and welfare so that the fees could not be characterized as support. Applying a de novo standard of review, the district court reversed the bankruptcy court, reasoning that application of section 523(a)(5) only to...