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UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

In re: )

)

KEVIN THOMAS COE ) Case No. 16-13895-BFK

) Chapter 7

Debtor. )

___________________________________ )

)

LEE & MEIER, PLLC ) Adversary Proceeding

) No. 17-01017-BFK

Plaintiff, )

)

vs. )

)

KEVIN THOMAS COE )

)

Defendant. )

FINDINGS OF FACT

AND CONCLUSIONS OF LAW

This matter came before the Court for a trial on the merits on August 31, 2017. The 

Plaintiff’s Complaint contained two Counts: Count I sought a declaration of non-dischargeability 

of certain legal fees and expenses incurred by the Plaintiff as a claimed Domestic Support 

Obligation (“DSO”) under Bankruptcy Code Section 523(a)(5) (11 U.S.C. § 523(a)(5)); and 

Count II, in which the Plaintiff objected to the Debtor’s Means Test calculation (specifically, 

whether the Debtor was exempt from the Means Test, which turned on whether or not his debts 

were primarily consumer debts or not). 

At the conclusion of the evidence, the Court ruled in favor of the Plaintiff on Count II and 

held that the Defendant’s debts were primarily consumer debts. The Court ordered the Defendant 

to file an Amended Means Test form within 10 days of the hearing. Docket No. 28. The Court 

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then gave the Plaintiff and the U.S. Trustee 30 days after the Amended Means Test form was 

filed to file any Objections. Id. The Court took Count I under advisement. 

The Debtor filed his Amended Means Test form on September 10, 2017. Case No. 16-

13895-BFK, Docket No. 32. On October 10, 2017, the U.S. Trustee filed a Statement that a 

Motion to Dismiss is Not Appropriate. Id., Docket No. 34. The Plaintiff did not file an Objection 

to the Debtor’s Amended Means Test form. Thus, any further proceedings on Count II are moot, 

and the Court will dismiss Count II.

The matter is now ripe for a resolution on the sole remaining issue under Count I, 

whether the Plaintiff’s fees and expenses, awarded by the Arlington County Circuit Court in the 

amount of $29,955.37, and an additional $15,458.67 for attorney’s fees and costs on appeal,

pursuant to the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9007(b), 

are in the nature of a DSO under Section 523(a)(5) of the Bankruptcy Code. The Court finds that 

the fees awarded are in the nature of a DSO.

Findings of Fact

The Court, having heard the evidence, makes the following findings of fact: 

A. The ICARA Proceeding in Arlington County. 

1. The Plaintiff is a law firm located in Fairfax, Virginia. Song Yung Lee is a 

member of the firm. She was retained by Seon Hwa Coe to file a petition under The Hague

Convention to secure the return of her and the Defendant’s son to Korea. 

2. The Circuit Court ordered the return of the parties’ child to South Korea. The 

Circuit Court further awarded Ms. Coe $29,955.37 in fees and costs pursuant to the ICARA. 

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3. Mr. Coe, the Debtor and the Defendant in this adversary proceeding, appealed. 

The Circuit Court’s judgment was affirmed on appeal by the Virginia Court of Appeals, which 

also remanded the case back to the Circuit Court for an award of additional fees and costs. 

4. The Circuit Court awarded an additional $15,458.67 in legal fees and costs for the 

appeal. 

B. The Debtor Files a Voluntary Bankruptcy Petition with This Court. 

5. The Debtor filed a Voluntary Petition under Chapter 7 with this Court on 

November 15, 2016. Case No. 16-13895-BFK.

6. The Plaintiff timely filed its Complaint in this adversary proceeding on February 

21, 2017.

Conclusions of Law

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the Order of 

Reference of the U.S. District Court for the Eastern District of Virginia entered August 15, 1984. 

This is a core proceeding under 28 U.S.C. §§ 157(b)(2)(I) (determinations as to the 

dischargeability of particular debts) and (J) (objections to discharges). 

At the outset, the Court finds that the Plaintiff, as the law firm who represented the 

Debtor’s ex-wife, has standing to maintain this action. In In re Collins, the District Court held 

that an attorney who had represented the debtor’s ex-wife in state court divorce proceedings had 

standing to bring an adversary proceeding to determine whether the debt was dischargeable. 500 

B.R. 747, 754 (E.D. Va. 2013). The Court finds this case to be indistinguishable from Collins on

this point, and holds that the Plaintiff law firm has standing to maintain this action. 

The question, then, is whether the fees awarded by the Circuit Court (before the appeal 

and on remand) constitute a non-dischargeable DSO. Section 523(a)(5) of the Code provides for 

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an exception for the discharge of DSO’s. The term “Domestic Support Obligation” is defined as 

follows: 

The term “domestic support obligation” means a debt that accrues before, on, or after the 

date of the order for relief in a case under this title, including interest that accrues on that 

debt as provided under applicable nonbankruptcy law notwithstanding any other 

provision of this title, that is—

(A) owed to or recoverable by—

(i) a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian, 

or responsible relative; or 

(ii) a governmental unit; 

(B) in the nature of alimony, maintenance, or support (including assistance provided by 

a governmental unit) of such spouse, former spouse, or child of the debtor or such child’s 

parent, without regard to whether such debt is expressly so designated; 

(B) established or subject to establishment before, on, or after the date of the order for 

relief in a case under this title, by reason of applicable provisions of—

(i) a separation agreement, divorce decree, or property settlement agreement; 

(ii) an order of a court of record; or 

(iii) a determination made in accordance with applicable nonbankruptcy law by a 

governmental unit; and 

(C) not assigned to a nongovernmental entity, unless that obligation is assigned 

voluntarily by the spouse, former spouse, child of the debtor, or such child’s parent, 

legal guardian, or responsible relative for the purpose of collecting the debt.

11 U.S.C. § 101(14A). 

There is no question that the debt is owed to the Debtor’s former spouse’s law firm. The 

debt was established by two Orders of the Arlington County Circuit Court before the Debtor 

filed his bankruptcy petition. 

The only question is whether the debt is “in the nature of alimony, maintenance, or 

support.” The Court holds that it is. As this Court has previously held, “[a]ttorney's fees follow 

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the nature of the principal award. If the principal award is a domestic support obligation, the 

attorney's fees incidental to obtaining the domestic support obligation are also treated as a 

domestic support obligation[.]” In re Uzaldin, 418 B.R. 166, 172 (Bankr. E.D. Va. 2009) (citing 

Silansky v. Brodsky, Greenblatt & Renehan (In re Silansky), 897 F.2d 743, 744-45 (4th Cir. 

1990)). See also McNeil v. Drazin, 499 B.R. 490, 491 (D. Md. 2013) (“Post–BAPCPA, the 

weight of authority of bankruptcy courts in this circuit and others is that attorney fee debts 

awarded in domestic litigation may qualify as domestic support obligations, even if they are not 

payable directly to the debtor's spouse, former spouse, or child.”) Legal fees incurred in 

connection with custody determinations are uniformly held to be non-dischargeable support 

obligations. See Falk & Siemer, LLP v. Maddigan (In re Maddigan), 312 F.3d 589, 597 (2nd Cir. 

2002); In re Rehkow, No. 04-11697, 2006 WL 6811011, at *3 (9th Cir. B.A.P. Aug. 17, 2006) 

(collecting cases).

The Court is aware of one opinion, In re Weed, addressing the particular type of fees and

expenses awarded in this case pursuant to the ICARA. 479 B.R. 533, 536–39 (Bankr. D. Minn.

2012). The Court agrees with the analysis in Weed, and holds that the fees and expenses here are 

in the nature of a non-dischargeable DSO under Section 523(a)(5). As noted by the Court in 

Weed, the ICARA does not govern custody determinations; it simply enforces the parties’ rights 

under The Hague Convention. Weed, 479 B.R. at 540 (quoting 22 U.S.C. § 9001(b)(4) (“The 

Convention and this chapter empower courts in the United States to determine only rights under 

the Convention and not the merits of any underlying child custody claims.”)) On the other hand, 

the ICARA includes the following Congressional findings: 

(1) The international abduction or wrongful retention of children is harmful to their wellbeing.

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(2) Persons should not be permitted to obtain custody of children by virtue of their 

wrongful removal or retention.

(3) International abductions and retentions of children are increasing, and only concerted 

cooperation pursuant to an international agreement can effectively combat this 

problem.

(4) The Convention on the Civil Aspects of International Child Abduction, done at The 

Hague on October 25, 1980, establishes legal rights and procedures for the prompt 

return of children who have been wrongfully removed or retained, as well as for 

securing the exercise of visitation rights. Children who are wrongfully removed or 

retained within the meaning of the Convention are to be promptly returned unless one 

of the narrow exceptions set forth in the Convention applies. The Convention 

provides a sound treaty framework to help resolve the problem of international 

abduction and retention of children and will deter such wrongful removals and 

retentions.

22 U.S.C. § 9001(a)(1)-(4). 

The Court concludes, therefore, that the fees and expenses at issue here are in the nature 

of support.1

Conclusion

For the foregoing reasons, the Court will enter a separate Order under which: 

1. Under Count I, the Court will declare all of the fees and costs awarded by the Arlington 

County Circuit Court in the ICARA proceeding, before the appeal ($29,955.37) and on 

remand ($15,458.67) to be non-dischargeable Domestic Support Obligations under 

Section 523(a)(5). 

 

1 The Court notes that this is a Chapter 7 case. If the fees and expenses are not in the nature of a DSO under 

Section 523(a)(5), they would be covered under Section 523(a)(15), which provides an exception in Chapter 7 cases 

for debts owed: 

to a spouse, former spouse, or child of the debtor and 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, or a determination made in accordance with State or 

territorial law by a governmental unit[.]

11 U.S.C. § 523(a)(15). 

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2. Count II will be dismissed as moot. 

3. The Clerk will mail copies of these Findings and the accompanying Order, or will 

provide cm-ecf notice of their entry, to the parties below. 

Date: _____________________ ________________________________

Brian F. Kenney

Alexandria, Virginia United States Bankruptcy Judge

Copies to:

Sae Woong Lee

11325 Random Hills Road, Suite 360

Fairfax, VA 22030

Counsel for the Plaintiff

Kevin Thomas Coe

2200 12th Court North, Apt. 417

Arlington, VA 22201

Defendant

Robert Sergio Brandt

1513 King Street 

Alexandria, VA 22314

Counsel for Defendant

Nov 2 2017 /s/ Brian F. Kenney

Entered on Docket: November 2, 2017

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