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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20147

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2009

Charles R. Fulbruge III

Clerk
No. 08-20147

 By letter dated July 30, 2009, we requested that the parties file letter briefs 1

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

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.” FED. R. CIV. 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681-82 (5th Cir. 2004) (unpublished) (“Attorney fees awarded in connection with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. Because the Texas Court of Appeals held the trial court’s characterization 1
No. 08-20147

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.

3

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.