* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 18 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

In re: LINDA A. WATSON,

Debtor. LINDA A. WATSON,

Appellant,
v. DIANE S. JONES and ADDIE MERRITT,

Appellees. No. 97-4208 (D.C. No. 97-CV-440-B) (D. Utah)

ORDER AND JUDGMENT *

Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Debtor Linda Watson objected to Diane Jones’ proof of claim in the underlying bankruptcy proceeding. The $13,980 clai m resulted from an award of attorney fees in a custody dispute between debtor a nd appellee Addie Merritt. The bankruptcy court overruled the objection and al lowed the claim. Debtor appealed, and the district court reversed the bankr uptcy court decision, disallowing the claim because, under Utah law, an award of attorney fees in a domestic dispute is in favor of the litigant, not t he attorney. Therefore, the district court found that Jones, Addie Merritt’s attorney in the custody dispute, was not a creditor and did not have a claim under t he Bankruptcy Code. Immediately thereafter, Jones filed a motion to ame nd the claim to substitute Addie Merritt as the proper claimant. The bankrupt cy court allowed the amendment, and debtor appealed. The district court , relying on this court’s decision in Unioil, Inc. v. Elledge (In re Unioil, Inc.) , 962 F.2d 988 (10th Cir. 1992), affirmed the bankruptcy court’s decision to allow amendment. Plaintiff appeals.-3-

We apply the same standards as did the district cou rt in reviewing the bankruptcy court’s decision: we review its legal co nclusions de novo and its factual findings for clear error. See Phillips v. White (In re White) , 25 F.3d 931, 933 (10th Cir. 1994). In deciding whether the bankruptcy court was correct in allowing amendment of the claim to substitute the p roper claimant, “we consider de novo the threshold issue whether the original pr oof of claim was amendable at all; and, if it was, we assess the decision to allo w amendment under the particular circumstances solely for an abuse of discretion.” In re Unioil , 962 F.2d at 992.

Ordinarily, amendment of a proof of claim is freely permitted so long as the claim initially provided adequate no tice of the existence, nature, and amount of the claim as well as the creditor’s intent to hold the estate liable. The court should not allow truly new claims to proceed under the guise of amendment. Id. As in Unioil , debtor does not dispute that the claim was defici ent in any of these respects or that the amendment altered the su bstantive content of the claim. The only change was the substitution of the claiman t legally entitled to enforce the attorney fee award. “Accordingly, as a matter of law, the proof of claim was amendable.” Id. Further, the bankruptcy court did not abuse its d iscretion in allowing amendment of the proof of claim in the particular circumstances of this case. Debtor has shown no prejudice resulting fromthe amendment. Indeed, the substance of the claim remains the same. See id. at 993 (holding no abuse of-4-

discretion where no actual prejudice was shown and substance of claim was unaltered by amendment that merely substituted prop er claimant). We AFFIRM the district court’s opinion and order. The mandate shall issue forthwith.

Entered for the Court
Wade Brorby Circuit Judge