                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 13 2001
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    In re:

    STEPHEN J. MERRILL, doing
    business as Merrill & Associates                   No. 00-5201
    and as Key Energy Resources, Inc.,               (BAP No. 00-23)
    formerly doing business as Merrill           (Bankr. No. 99-01456-M)
    & Merrill and as Horizon Exploration,         (Adv. No. 99-0132-M)
    Inc.,

                Debtor.


    LORI ANN MERRILL, Individually
    and as Parent and Next Friend of April
    Michelle Merrill,

                Plaintiff-Appellee,

    v.

    STEPHEN J. MERRILL,

                Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before SEYMOUR and McKAY , Circuit Judges, and         BRORBY , Senior Circuit
Judge.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the appellant’s brief and the appellate record, this panel

has determined unanimously to grant the parties’ request for a decision on the

briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

       Debtor-defendant Stephen J. Merrill appeals from an order of the

Bankruptcy Appellate Panel (BAP) affirming the bankruptcy court’s order

denying discharge of debts owed to his former wife, plaintiff-appellee Lori Ann

Merrill, in his Chapter 7 bankruptcy core proceeding.     See Merrill v. Merrill

(In re Merrill) , 252 B.R. 497 (B.A.P. 10th Cir. 2000). Our jurisdiction arises

from 28 U.S.C. § 158(d) and we affirm.

       The debts in dispute are of two kinds: (1) funds debtor was ordered to pay

to plaintiff in their state court divorce proceeding, including payments for two

types of insurance, and (2) a $9,000 debt for amounts debtor withdrew from

a trust account held in the name of the parties’ daughter. The bankruptcy court

held that the payments ordered by the divorce court, including the insurance

payments, were not subject to discharge in bankruptcy because they constituted

spousal support alimony, which is not dischargeable, pursuant to 11 U.S.C.

§ 523(a)(5). Merrill v. Merrill (In re Merrill)   , 246 B.R. 906, 916-18 (Bankr. N.D.

Okla. 2000). The bankruptcy court further held that the trust funds were also not


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subject to discharge, applying § 523(a)(4), which denies a discharge “for fraud or

defalcation while acting in a fiduciary capacity.”    Id. at 922. The BAP affirmed

those holdings.

       On appeal, debtor argues that the funds for alimony support he was ordered

to pay to the plaintiff were not for plaintiff’s support, but rather, were for a

property settlement, which is dischargeable. He also claims the debt for the

insurance policies is dischargeable because the policies were unnecessary, and

therefore did not contribute to plaintiff’s support. As for the funds withdrawn

from the daughter’s trust account, debtor maintains that he acted appropriately

and legally under the Oklahoma Uniform Transfers to Minors Act, Okla. Stat. tit.

58, § 1201-1226, by investing those funds, even though the investment ultimately

failed and the funds were lost. Accordingly, debtor argues that he did not commit

fraud or defalcation and the debt is dischargeable.

       “In our review of BAP decisions, we independently review the bankruptcy

court decision.”    In re Albrecht , 233 F.3d 1258, 1260 (10th Cir. 2000). Legal

determinations are reviewed de novo,      Stewart v. United States Trustee (In re

Stewart) , 175 F.3d 796, 803 (10th Cir. 1999), while findings of fact are reviewed

for clear error, Sampson v. Sampson (In re Sampson)      , 997 F.2d 717, 721

(10th Cir. 1993).




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      We have carefully reviewed the record on appeal, as well as the brief

submitted by debtor. Applying the standards set out above, we hold that the

bankruptcy court correctly denied the discharges in bankruptcy and we therefore

affirm the bankruptcy court’s judgment for substantially the same reasons as those

stated in the BAP’s September 1, 2000 opinion.

      AFFIRMED.



                                                   Entered for the Court



                                                   Wade Brorby
                                                   Senior Circuit Judge




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