
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________          No. 96-2185                                   ROBERT D. MACY,                               Plaintiff - Appellant,                                         v.                                  ANNA LOWELL MACY,                                Defendant - Appellee.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. Edward F. Harrington, U.S. District Judge]                                ____________________                                       Before                               Torruella, Chief Judge,                                Selya, Circuit Judge,                             and Saris,* District Judge.                                _____________________               James F. Coffey, with whom Carolyn A. Bankowski and Coffey &          Shea were on brief for appellant.               Mark G. DeGiacomo,  with whom Barbara J. Kroncke and  Roche,          Carens & DeGiacomo, P.C. were on brief for appellee.                                ____________________                                    May 23, 1997                                ____________________          *  Of the District of Massachusetts, sitting by designation.                    TORRUELLA, Chief  Judge.          R          Anna Lowell Macy, the debtor's ex-spouse, brought an action under                                   and (a)(15),2 seeking a ruling that  the          7 of the Bankruptcy Code on October 31, 1994.  On March 17, 1995,             U.S.C. SS 523(a)(5)1                          A discharge under  section 727 . .  .                                                The debtor  in  this  case,           obert                 D.                    Macy,                         filed                               a                                 voluntary bankruptcy petition under Chapter          11          1  Section 523(a)(5) provides, in relevant part:                            not  discharge an individual  debtor                      from any debt--                         . . .                      does                      (a)                         (5) to a spouse, former 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,   determination   made   in                         accordance                                    with State or territorial                         law  by  a  governmental  unit,  or                         property settlement agreement,  but                         not to the extent that --                         . . .                          (B) such debt includes a  liability                         designated as alimony, maintenance,                         or                            support,                                     unless such liability is                         actually in the nature of  alimony,                         maintenance, or support.          11 U.S.C. S 523(a)(5).          2  Section 523(a)(15) provides, in relevant part:                      (a) A discharge under  section 727 . .  .                      does not  discharge an individual  debtor                      from any debt --                       . . .                         (15) not of  the kind described  in                         paragraph (5)  that is incurred  by                         the  debtor  in  the  course  of  a                         divorce   or   separation   or   in                         connection   with   a    separation                         agreement, divorce decree or  other                         order of a court of record. . . .          11 U.S.C. S 523(a)(15).                                         -2-          payments  required by  the  parties'  separation  agreement  were          nondischargeable.  At trial it was agreed "that no issues of fact          remain in  dispute and  the only issue  before the  court is  the          dischargeabil                      ity of $33,706.98 in pre-petition attorneys' fees and          disbursements."  In re Macy,  192 B.R. 802, 803 (Bankr. D.  Mass.          1996).  The plaintiff filed her action within the time prescribed          for 11 U.S.C. S 523(a)(5), but beyond the somewhat shorter period          prescribed for 11 U.S.C.  S 523(a)(15).  The parties have  agreed          throughout the litigation, therefore, that if the debt is not  of          the kind  described in 11 U.S.C.  S 523(a)(5), but falls  instead          under section 523(a)(15), then it is dischargeable.                    The bankruptcy court held that the attorneys' fees  and          disbursements incurred in connection with the plaintiff's efforts          to collect alimony, maintenance, or child support are governed by          section                  523(a)(5) of the Bankruptcy Code and, on the facts of this          case,                are                    not dischargeable.  Macy, 192 B.R. at 806.  On appeal to          the              United                    States                           District Court for the District of Massachusetts,          the decision was  affirmed.  The debtor-appellant now appeals  to          this               court.                                             The only issue on appeal is whether section 523(a)(5)          or section 525(a)(15)  furnishes a vehicle  for testing the  non-          dischargeabil                      ity of attorneys' fees incurred by a former spouse in          an effort  to  enforce payments  required  by a  divorce  decree.          Holding that attorneys' fees  incurred by a former spouse in  the          course of seeking to enforce support-related payments required by          a divorce  decree are properly  nondischargeable under 11  U.S.C.          S 523(a)(5), we affirm.                                         -3-                    We find that  the reasoning of  the decisions below  is          sound,                 and                     affirm for substantially the reasons put forth therein.          See Macy v. Macy, 200 B.R. 467, 468-69 (Bankr. D. Mass. 1996); In          re Macy, 192 B.R. at 802-03.  See generally Lawton v. State  Mut.          Life Assurance Co., 101 F.3d 218, 220 (1st Cir. 1996) ("[W]hen  a          lower court produces a comprehensive, well-reasoned decision,  an          appellate court should refrain from writing at length to no other          end than  to hear  its own  words resonate").   We  add only  the          following brief discussion.                    The  foundation of  appellant's  argument is  that  the          Bankruptcy                     Reform Act of 1994, Pub. L. No. 103-394, 108 Stat. 4106          (1994), by adding section  523(a)(15), has impliedly amended  the          appropriate interpretation of section 523(a)(5), changing the way          in  which attorneys' fees  should be classified.   By its  terms,          section 523(a)(15)  includes only debt that  is "not of the  kind          described                    in                      [section                               523(a)](5)."  Furthermore, it is not disputed          that prior to the enactment of the Bankruptcy Reform Act, fees of          the sort at issue were nondischargeable under section  523(a)(5).          See            ,               e.g.                  ,                     In                       re                          Coleman,                                  37 B.R. 120, 123 (Bankr. W.D. Wisc. 1984)          ("There has  been virtual unanimity  among bankruptcy courts  and          appellate courts . . . that attorney's fees incurred by a  spouse          are nondischargeable so long as the primary debt is excepted from          discharge.")  The question, therefore, is whether the  Bankruptcy          Reform Act had the effect of removing attorneys' fees of the sort          at issue here from the reach of section 523(a)(5).                                         -4-                    A                      review                             of                               existing                                        case law and the legislative history          of section 523(a)(15) leads us to the conclusion that  attorneys'          fees continue to  be governed by section  523(a)(5).  There is  a          strong policy interest in protecting ex-spouses and children from          the loss of alimony, support and maintenance owed by a debtor who          has              filed                   for                       bankruptcy.  See Shine v. Shine, 802 F.2d 583, 585-88          (1st Cir.  1986).  This policy  is emphasized in the  legislative          history of section 523(a)(15), which reads:                         This section  is intended  to  provide                      greater    protection    for     alimony,                      maintenance,                                   and support obligations owing                      to a spouse, former spouse, or child of a                      debtor in bankruptcy. . . .                         [Section  523(a)(15)]   adds   a   new                      exception                                to                                   discharge for some debts that                      are  not  in   the  nature  of   alimony,                      maintenance   or  support.      In   some                      instances, divorcing spouses have  agreed                      to                         make                              payments of marital debts, holding                      the  other  spouse  harmless  from  those                      debts, in  exchange  for a  reduction  in                      alimony                              payments.  In other cases, spouses                      have agreed to  lower alimony based on  a                      larger                             property settlement.  If such "hold                      harmless"   and    property    settlement                      obligations are not  found to  be in  the                      nature  of   alimony,   maintenance,   or                      support,  they  are  dischargeable  under                      current                              law.                                    The non-debtor spouse may be                      saddled with substantial debt and  little                      or no alimony  or support.  This  section                      will      make      such      obligations                      nondischargeable. . . .          H.R. Rep. No. 103-835 at S 304 (1994).  This legislative  history          demonstrates that Congress sought to apply section 523(a)(15)  to          debts that had previously been construed as property obligations.          See, e.g., In re  Kritt, 190 B.R. 382,  385 n.4 (9th Cir.  B.A.P.          1995) ("Section  523 has subsequently been  amended to add a  new                                         -5-          section 523(a)(15), which provides that property settlements  are          now generally  nondischargeable  in bankruptcy.")   There  is  no          indication  that  Congress   intended  to   affect  the   liberal          interpretation of  section  523(a)(5).   It follows,  then,  that          Congress did not intend to apply section 523(a)(15) to debts that          were, prior to the  Bankruptcy Reform Act, considered to be  non-          dischargeable under section 523(a)(5).                    Affirmed.                                         -6-
