* Pursuant to 5th C IR . R. 47.5, th e court has determined that this opinion should not

be published and is no t p recedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. - 1 -

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________ No. 04-60999

_________________________ In The Matter Of: DONNA ROGERS, Debtor.

___________________________________ DONNA ROGERS, Appellant,

versus MARK ANTON MORIN, Appellee.

__________________________________________________ Appeal from the Unites States District Court fo r the Southern District of Mississippi (No. 3:01-CV-879)

__________________________________________________ Before REAVLEY, CLEMENT, and PRADO, Circuit Judges. PER CURIAM: * In thi s bankruptcy proceeding, the debtor appeals from the bankruptcy court’s grant o f summary judgment in favor of the creditor. Because, like the courts below, we hold that the debt is United States Court of Appeals

Fifth Circuit 

## F I L E D June 22, 2006 Charles R. Fulbruge III Clerk1 A r ound this ti

me, Rogers also sought review of the chancellor’s order. The Mississippi Supreme Court affirmed the chancellor’s order. - 2 - not di schargeable, we affirm. I. FACTS AND PROCEEDINGS The debt in question stems from a custody determ inat io n in a divorce proceeding before the Chancery Court of Scott County, Mississippi. At the outset of the proceeding, the chancellor initially awarded the wife, Donna Rogers, tem porary custody over the couple’s th ree-year-old daughter, Eri n, subject to unrestricted visit ation by the husband, Mark Mori n. During the course of the proceeding, Rogers alleged that Morin had sexually abused Erin. Pursuant to Mississippi law, the chancellor conducted a hearing on th e abuse allegation as part of the overall custody determ inat io n. The abuse hearing lasted over two weeks and involved seventeen wit nesses and over fift y exhibit s. Mori n incurred $29,388.25 in attorney’s fees related to his defense of the sexual abuse allegation. Court costs, largely attributable to the cost of a guardian ad litem on Eri

n’s behalf, reached $9,962.42. The chancellor concluded that Morin had not abused Eri n and, under M ISS . C ODE § 93-5-23, awarded to Mori n attorney ’s fees and costs, t otal ing $39,350.67, incurred in defending the abuse allegations. The chancellor based the award on Morin’s successful defense of th e sexual abuse claim and establishment of reasonable visitation rights. In addition, the chancellor awarded a lump-sum alimo ny payment from Mori n to Rogers and on-goi

ng child support pay

ment s from Morin for Erin’s benefit. As a result of the custody hearing, t he chancellor finalized the temporary custody order. Aft er Mori

n attem pted to collect the debt from Rogers, Rogers filed a Chapter 7 bankruptcy action. 1 Mori

n init iat ed an adversary proceeding, in which he contended t hat the debt was not- 3 -

dischargeable under 11 U.S.C. § 523(a)(5). Rogers argued, as she does now on appeal, that because she is t he custodial parent the debt cannot be for Erin’s support and, therefore, is not exempt from discharge. The bankruptcy court disagreed, granted Morin’s mo tion for summary judgment, and deemed the debt not dischargeable because it was in the nature of support fo r Eri n. Rogers appealed to the district court, which affirmed the bankruptcy court on similar grounds. Rogers now appeals to this court. II. STANDARD OF REVIEW This court reviews the bankruptcy court’s order in th e same manner as did th e district court. Hickman v. Texas (In re Hickman) , 260 F.3d 400, 401 (5th Cir. 2001) (citing AT& T Universal Card Servs. v. Mercer (In re Mercer) , 246 F.3d 391, 402 (5th Cir. 2001) (en banc)). The bankruptcy court’s summary judgment order is reviewed de novo. First Am. Title Ins. Co. v. First Trust Nat’l Ass’n (In Re Biloxi Casino Belle Inc.) , 368 F.3d 491, 496 (5th Cir. 2004) (citing Williams v. Int’l Bhd. of Elec. Wo rkers, Local 520 (In re Williams) , 298 F.3d 458, 461 (5th Cir. 2002)). A bankruptcy court’s grant of summary judgme nt is appropriate when there is no genuine issue of mat erial fact and the mo ving party is entitled to a judgment as a mat ter of law. Id . (ci ti ng F ED . R. C IV . P. 56(c); B ANKR . R. 7056). In an adversary proceeding challenging the discharge of a debt, the creditor has the burden to prove by a preponderance of th e evidence that th e debt is not dischargeable. Grothues v. IRS (In re Grothues) , 226 F.3d 334, 337 (5th Cir. 2000) (citing Grogan

v. Garner , 498 U.S. 279, 287 (1991)). “If the moving party meets its burden, the non-movant must designate specific facts showing there is a genuine issue for trial.” Z er-Ilan v. Frankford (In re CPDC, Inc.) , 337 F.3d 436, 441 (5th Cir. 2003) (ci ti ng L ittle v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).2 Rogers init iat ed bankruptcy proceedings in November 1999. Section 523(a)(5) has

since been amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub L. No. 109-8, § 215(1)(A), 119 Stat. 23, 54 (2005). - 4 - III. DISCUSSION A. Nature of the debt Rogers contends that the bankruptcy court and district court erred in determ ining that the debt

was in the nature of support be cause those courts did not em ploy the factors set out in D ennis v. Dennis (In re Dennis) , 25 F.3d 274, 279 (5th Cir. 1994). Rogers’s argument fails fo r two reasons. First, the debt in Dennis invo lved the payment of a portion of th e ex-husband’s pension in support of the ex-wife; support of a child was not in question. Second, this circuit and the majority of other circuits have plainly held that debts like the one at issue are in the nature of support of the child. At the ti me o f Rogers’s bankruptcy, 11 U.S.C. § 523(a)(5) provided: A discharge under . . . this title does not discharge an individual debtor from any debt . . . to a spouse, former spouse, or child of the debtor, fo r alimo ny to, maint enance fo r, or support of such spouse or child, in connection wit h a separation agr e ement, divorce decree or o th er order of a court of record, determ inat io n made in accordance wit h State or terri

tori al law by a governmental unit , or property settlement agreement, but not to the extent that
. . . such debt includes a liabilit y designated as alimo ny, maint enance, or support, unless such liabilit y is actually in the nature of alimo ny, maint enance, or support

. . . . 2 There is no question that the debt arose “in connection with a . . . divorce decree” and that the chancellor’s order was a “determination made in accordance with State . . . law.” Accordingly, to determ ine whether the debt is exempt from discharge under § 523(a)(5), the essential question is whether the “liability is actually in the nature of alimony, maintenance, or support.” This court’s precedent dictates that the liabilit y is in the nature of support of Eri n, and, as such, th e debt is exempt- 5 -

from discharge. This circuit has been clear on the nature of the debt invo lved: “A court ordered obligation to pay attorney fees charged by an attorney that represents a child’s parent in child support lit igation against the debtor is non-dischargeable.” H udson v. Raggio & Raggio, Inc. (In re Hudson) , 107 F.3d 355, 357 (5th Cir. 1997). The same holds true as to debts incurred in the adjudication of custody disputes. S

ee Dvorak v. Carlson (In re Dvorak) , 986 F.2d 940, 941 (5th Cir. 1993) (hol ding that under § 523(a)(5) attorne y’s fees and court costs from a custody hearing were not dischargeable because the “court hearing

. . . was fo r [the child]’s benefit and support”). S ee also Sonntag v. Prax (In re Sonntag) , 115 F. App’x 680, 682 (5th Cir. 2004) (“Sonntag II ”) (per curiam) (“Attorney fees awarded in connection wit h a child custody dispute are fo r the benefit of the parti es’ children, as the purpose of such a proceeding is to determ ine who can provide the best home and environment for the children at issue.”), aff’g No. 4:04-CV-145-A, 2004 WL 764728 (N.D. Tex. Apr. 7, 2004) (“Sonntag I

”). Regarding the nature of the debt invo lved, th e Hudson court reasoned that “[b]ecause the ult imat e purpose of such a proceeding is to provide support fo r the child, th e attorney fees incurred inure to her benefit and support, and th erefore fall under th e exception to dischargeability set out in § 523(a)(5).” 107 F.3d at 357. The majority of other circuits agree that “custody actions are directed towards determ

ining which party can provide the best home fo r the child and are, th erefore, held fo r the child’s benefit and support.” L ow ther v. Low

ther (In re Low

ther) , 266 B.R. 753 , 757 (B.A.P. 10th Cir. 2001) (“The majo ri ty of circuit courts addressing this iss ue have reached similar conclusions.”) (collecting cases), af f’d , 321 F.3d 946 (10th Ci r. 2002). The nature of the debt in question here is no different.- 6 -

The attorney ’s fees and court costs that make up the debt arose as a direct result of t he adjudication of Rogers’s allegations of sexual abuse by Morin. The abuse hearing formed a part of the overall custody determinat io n. The resolution of the abuse allegations and determination of whether Mori

n should be permitted reasonable rights of visit ation plainly were fo r Eri n’s benefit and well-being: the chancellor made custody and visit ation determ inat io ns based on Erin’s needs after determ ining that Mori

n had not abused her. As such, under this court’s precedent, the liability incurred from the proceedings is a debt that is in the nature of support for Erin. In light of H udson and Dvorak, the bankruptcy court and the district court did not err in holding that the debt was in the nature of support. B. Unusual circumstances Rogers urges the court to fo llo w th e Tenth Ci rcuit and recognize an exception to the exemption from discharge under § 523(a)(5) where “unusual circumstances exist.” S ee Low ther , 266 B.R. at 757 (citing Jones v. Jones (In re Jones) , 9 F.3d 878, 881 (10th Cir. 1993)). Rogers identifies

as an unusual circumstance the fact that she was awarded custody, but th e chancellor assessed the attorney ’s fees and court costs against her. As the custodial parent and debtor, she continues, if the debt is not discharged, the effect of the ruling would be to “t ake fo od out of the mo uth of th e mino r child.” Rogers identifies no cases from this circuit holding that the presence of unusual circumstances permit an otherwise non-dischargeable debt to be discharged. Nor does Rogers provide support for her proposi

tion that a custodi al parent’s debt to th e non-custodi al parent necessarily constitutes unusual circumstances. To the contrary, as the district court identified, cases from outside this circuit show that the debtor’s status as the custodi al parent is irrelevant to whether the debt is dischargeable.- 7 -

See, e.g., Swartzberg v. Lockw ood (In re Lockw

ood) , 148 B.R. 45, 47 (Bankr. E.D. Wisc. 1992) (holding that the debtor’s status as custodial parent does not necessarily preclude the denial o f discharge under § 523(a)(5)); Wedgle & Shpall, P.C. v. Ray (In re Ray) , 143 B.R. 937, 939 (D. Colo. 1992) (reversing the bankruptcy court’s discharge of debt because, “in determ ining whether attorney fees are nondis chargeable under § 523(a)(5), the bankruptcy court should have focused on the character of the underlying proceedings, not [on] who was to have been paid the attorney fees, since the putati ve beneficiary of the award is, in fact, the child”). In this circuit, Rogers’s Low ther argument has been rejected implicit ly. In Sonntag II , this circuit considered whether one parent’s debt to the other parent could be discharged under § 523(a)(5). 115 F. App’x at 681. The debtor-parent argued that this circuit should adopt the Tenth Circuit’s unusual circumstances rationale from Low ther because deeming th e debt not dischargeable would negatively affect the debtor-parents abilit y to support th e child. Wit hout com ment ing on the Low ther argument, the panel simply cit ed Hudson and Dvorak fo r the proposi tion that “[a]ttorney fees awarded in connection with a child custody dispute are fo r the benefit of the parties’ children,

as the purpose of such a proceeding is to determ ine who can provide th e best home and environment fo r the children at issue” and held the parent’s debt not dischargeable under § 523(a)(5). Sonntag II , 115 F. App’x at 682. While the Sonntag II panel did not address th e argument now before the court, the district court, in Sonntag I

, squarely addressed, and rejected, th e debtor-parent’s Low ther argument Rogers now advances: The Uni

ted States Court of Appeals for the Fifth Circuit has int erp reted § 523(a)(5) to include court-ordered payment of attorneys’ fees incurred in post-di

vorce/child custody lit igation. The Fifth- 8 - Circuit has not allo wed, much less alluded to, any exception to its strict i nt erpretation of the statute. Appellant argues that the court should fo llo w th e r easoning of th e Tenth Circuit in [Low

ther]. There, the Tenth Circuit determined that an excepti on to the general rule of nondischargeability exists in “unusual circumstances.” There, unusual circumstances were fo und to exist based on the bankruptcy court’s fact findings that payment of court-ordere d attorney ’s fees “would essentially negate the support payments awarded by the state court [to th e debtor] fo r at least five years and would cle arly affect her ability to financially support the child.” The court is not persuaded that the Fi ft h Circuit, having spoken so plainly in Dvorak and Hudson , wou ld follow the Tenth Circuit. Sonntag I , 2004 WL 764728, at *2 (internal citations omitted). The district court, in Sonntag I , conti nued noting that, even assuming th e circuit did adopt the Low ther rationale, th e debtor-parent would have failed to establish the unusual circumstances alleged: “[Debtor-parent] did not request t he bankruptcy court to make any fact findings and the record wo uld not support the ki nd of findings necessary to meet the Tenth Circuit’s test in any event.” Sonntag I

, 2004 WL 764728, at *2. The same shortcoming is demonstrated in th e record before this court. On summary judgment, Mori n established as a mat ter of law that th e debt is not dischargeable under § 523(a)(5) because at the ti me it was incurred, the debt was in the nature of support fo r Eri n. Even if the court decided to adopt the unusual circumstances rationale, Rogers failed to identify in the record specific facts of actual har dshi p to Eri n t o support her special circumstances argument. And while she now requests remand to develop her allegations of hardship, t h e ti me to do so has pas sed. S

ee Varnado v. Lynaugh , 920 F.2d 320, 321 (5th Cir. 1991) (holding that allegations of factual issues may not be raised for the first time on appeal).- 9 -

Because Rogers does not qualify fo r relief under Low ther , we decline to decide whether to endorse or reject the Tenth Circuit’s rationale. For our purposes it is enough to hold that the debt i s not di schargeable because it is in the nature of support for Erin and that Rogers has failed to identify facts to support her special circumstances argument. IV. CONCLUSION Finding no error, we AFFIRM.