Gately v. Moore (In re Gately)

Bap No. CC-16-1086-TaFMc (BAP 9th Cir. Nov. 15, 2016) (Unpublished)
The BAP for the 9th Circuit affirmed the ruling of the bankruptcy court (CD Cal.) denying chapter 13 debtor's motion to avoid judicial lien. Bankruptcy court properly ruled that attorney fees awarded by divorce court were part of debtor's "alimony, maintenance, or support" obligations arising out of divorce. Characterization of award under state law, and separation from other award components in state court ruling, did not render the attorney fee obligation avoidable. Requirement that obligation be paid directly to former spouse's attorney also did not affect characterization as alimony, maintenance, or support. Bankruptcy court's refusal to consider letter attached to reply was harmless in that letter supported court's conclusion that attorneys' fees were properly in the nature of "alimony, maintenance, or support" arising out of divorce. BAP declined to consider evidence that had not been presented to bankruptcy court and that was not part of the record on appeal. BAP also declined to address debtor's argument for disallowance of attorney fee award, as issue was not properly appealed or before panel.
Procedural context:
Chapter 13 debtor moved to avoid lien as impairing exemption. Creditor objected, and bankruptcy court denied motion. Debtor appealed to BAP for 9th Circuit.
Following two year marriage, husband sought divorce. Wife filed bankruptcy. Following limited relief from stay, family court held trial on support obligations, and issued order awarding ex-wife past due support, future support, and modifying husband's support obligations for future support. Family court order also awarded ex-wife attorney fees, and directed husband to pay attorney fees directly. Husband failed to pay fee award, and attorney for ex-wife obtained writ of execution. Sheriff levied debtor's paycheck, seizing $3777. Husband filed chapter 13 bankruptcy, and filed motion to avoid attorney's lien in funds.
Taylor, Faris, McKittrick

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