           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                        September 30, 2009

                                     No. 08-20147                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



In the Matter Of: ANNE M MCCLOSKEY; MICHAEL A CRAIG

                                                   Debtors

----------------------
CHRISTOPHER J MCCLOSKEY

                                                   Appellant
v.

ANNE MIRIAM MCCLOSKEY; MICHAEL A CRAIG

                                                   Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:07-cv-2381


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The sole issue properly before this court in this bankruptcy appeal is
whether the district court erred in affirming the bankruptcy court’s conclusion
that an attorney’s fee award was not dischargeable in bankruptcy pursuant to

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                    No. 08-20147

11 U.S.C. § 523(a)(5). In bankruptcy appeals, we “perform the same function as
did the district court: Fact findings of the bankruptcy court are reviewed under
a clearly erroneous standard and issues of law are reviewed de novo.”
Nationwide Mut. Ins. Co. v. Berryman Prods., 159 F.3d 941, 943 (5th Cir.1998)
(citation omitted). This court reviews a grant of summary judgment de novo.
Evans v. City of Houston, 246 F.3d 344, 347 (5th Cir. 2001). Summary judgment
is appropriate when “the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to a judgment as a matter of law.” F ED. R. C IV. P. 56(c).

      A domestic support obligation is not dischargeable from debt in
bankruptcy. 11 U.S.C. § 523(a)(5); see generally In re Hudson, 107 F.3d 355, 357
(5th Cir. 1997) (“A court ordered obligation to pay attorney fees charged by an
attorney that represents a child’s parents in child support litigation against the
debtor is non-dischargeable.”) (citation omitted); In re Sonntag, 115 F. App’x 780,
681-82 (5th Cir. 2004) (unpublished) (“Attorney fees awarded in connection with
a child custody dispute are for the benefit of the parties’ children . . . . Thus,
such debts fall under the exception to dischargeability outlined in 11 U.S.C. §
523(a)(5).”).

      While this case was pending on this appeal, the Texas Court of Appeals
entered an opinion holding that “[b]ecause this is not a case of child support
enforcement, the trial court erred in characterizing the attorney’s fees as child
support.” McCloskey v. McCloskey, No. 14-06-00470-CV, at 4 (Tex. Ct. App. Apr.
2, 2009). The appellate court modified the trial court judgment to “delete any
reference to the characterization of attorney’s fees as ‘additional child support.’”
Id.1 Because the Texas Court of Appeals held the trial court’s characterization

      1
         By letter dated July 30, 2009, we requested that the parties file letter briefs
addressing whether the judgment on appeal should be vacated and remanded to the
bankruptcy court in light of the Texas Court of Appeals’ decision filed on April 2, 2009.

                                           2
                                       No. 08-20147

of the attorney’s fee award as child support to be in error, we vacate the
judgment and remand this cause to the bankruptcy court to determine whether
the attorney’s fee award is dischargeable in bankruptcy.

       VACATED and REMANDED.




Appellant McCloskey filed a letter brief, but he devotes most of the brief arguing that the debt
has already been paid, that the fees are based on an assignment that is prohibited, and that
the Appellees have violated the automatic stay. These issues are outside our review on this
appeal. Appellees did not file a letter brief.

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