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*

 This disposition is not appropriate for publication.

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8013-1.

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UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. NC-12-1425-JuTaPa

)

ADALBERTO PEREZ JIMENEZ, ) Bk. No. 12-42231-WJL

)

Debtor. )

______________________________)

OLIVIA PEREZ, )

)

Appellant, )

)

v. ) M E M O R A N D U M*

)

ADALBERTO PEREZ JIMENEZ, )

)

Appellee. )

)

______________________________)

Submitted Without Oral Argument on July 25, 2013

Filed - August 12, 2013

Appeal from the United States Bankruptcy Court

for the Northern District of California

Honorable William J. Lafferty, Bankruptcy Judge, Presiding _______________________

Appearances: Appellant Olivia Perez pro se on brief; Peter

Christopher Pappas, Esq., on brief for appellee

Adalberto Perez Jimenez. _________________________

Before: JURY, TAYLOR, and PAPPAS, Bankruptcy Judges.

FILED

AUG 12 2013

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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1

 Unless otherwise indicated, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532 and 

“Rule” references are to the Federal Rules of Bankruptcy

Procedure.

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Appellant, Olivia Perez, filed a proof of claim (POC) in

the chapter 131

 case of her former husband, Adalberto Perez

Jimenez (Adalberto or debtor). Olivia’s POC asserted a domestic

support obligation for $245,000 entitled to priority under

§ 507(a)(1)(A). Debtor objected to her claim on the ground that

it represented an equalizing payment rather than a claim for

support. The bankruptcy court sustained debtor’s objection,

finding that Olivia’s claim was a general unsecured claim. This

appeal followed. We AFFIRM.

I. FACTS

Adalberto was married to Olivia for approximately ten

years. In December 2012, they divorced and entered into a

martial settlement agreement (MSA). Both parties were

represented by counsel. Under the MSA, each party gave up the

right to receive spousal support from the other. The MSA also

contained an equalizing payment of $245,000 whereby Adalberto

would pay Olivia that amount by making monthly payments ranging

from $750 to $1,300 until the amount was paid. Adalberto made

some payments under the agreement.

On March 12, 2012, Adalberto filed his chapter 13 petition. 

He listed Olivia on Schedule E as a creditor holding a domestic

support obligation and asserted that he was current on the

payments. 

Debtor’s chapter 13 plan was a stepped-up five-year plan
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2 Section 1322(a)(2) requires that the plan “provide for the

full payment . . . of all claims entitled to priority under

section 507 of [title 11]. . . .” Thus, if an equalizing payment

is a “domestic support obligation,” it must be paid in full

through the debtor’s chapter 13 plan, unless the former spouse

agrees otherwise.

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with a 4% dividend to general unsecured claims. It also paid 

priority claimants under § 507 in full. The chapter 13 trustee

objected to debtor’s plan because he could not complete it

within sixty months if Olivia’s $245,000 claim was entitled to

priority.2

 

Debtor then objected to Olivia’s POC on the grounds that it

failed to take into consideration the amounts he had paid and

that the MSA made clear that (1) no spousal support payments

were due and (2) the $245,000 amount was an equalizing payment. 

In response, Olivia argued that although the MSA indicated there

were no further spousal obligations, that provision was not

determinative on the issue under the holding in Friedkin v.

Sternberg (In re Sternberg), 85 F.3d 1400 (9th Cir. 1996),

overruled on other grounds by Murray v. Bammer (In re Bammer),

131 F.3d 788, 792 (9th Cir. 1997) (en banc). Olivia also

submitted a declaration stating that at the time of her

separation from debtor, she had not worked for three years and

that debtor’s payments to her pursuant to the MSA were intended

to assist her in getting back on her feet.

On July 18, 2012, the bankruptcy court heard the matter 

and sustained debtor’s objection. Olivia filed her notice of

appeal on August 14, 2012. On November 29, 2012, the bankruptcy

court entered the order sustaining debtor’s objection to
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3

 Olivia has framed the issue on appeal as whether

equalization payments between spouses are dischargeable. While a

debt of the kind described in § 523(a)(15) is nondischargeable in

chapters 7, 11 and 12, the expanded discharge provided for in

chapter 13 cases covers debts such as this. Therefore, if the

equalization payment is not a domestic support obligation, it

would constitute a debt under § 523(a)(15), and could be

discharged in debtor’s chapter 13, even if not paid. However, to

obtain a discharge, a chapter 13 debtor must complete all

payments under the plan unless certain exceptions are found to

apply. See § 1328.

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Olivia’s POC. Accordingly, Olivia’s appeal was timely. See

Rule 8002(a) (providing that a notice of appeal filed after

announcement of bankruptcy court’s decision, but before entry of

an order, is to be treated as filed after such entry).

II. JURISDICTION

The bankruptcy court had jurisdiction over this proceeding

under 28 U.S.C. §§ 1334 and 157(b)(2)(A) and (B). We have

jurisdiction under 28 U.S.C. § 158. 

III. ISSUE

Whether the bankruptcy court erred when it determined that

the equalizing payment was not a domestic support obligation

entitled to priority status under § 507(a)(1)(A).3

IV. STANDARDS OF REVIEW

We review mixed questions of law and fact de novo. 

Wechsler v. Macke Int’l Trade, Inc. (In re Macke Int’l Trade,

Inc.), 370 B.R. 236, 245 (9th Cir. BAP 2007). A mixed question

exists when the facts are established, the rule of law is

undisputed, and the issue is whether the facts satisfy the legal

standard. In re Bammer, 131 F.3d at 792. Thus, whether a claim

is entitled to priority status is a mixed question of law and
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fact that we review de novo.

Our review of a mixed question begins by ascertaining

whether the bankruptcy court committed clear error in its

findings of fact. In the context of this appeal, we review the

bankruptcy court’s factual determination that the debt was not

based on spousal support for clear error. Beaupied v. Chang

(In re Chang), 163 F.3d 1138, 1140 (9th Cir. 2000) (Whether a

debt is actually in the nature of support is a “factual

determination made by the bankruptcy court as a matter of

federal bankruptcy law.”). “A finding is ‘clearly erroneous’

when although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” United States v.

U.S. Gypsum Co., 333 U.S. 364, 395 (1948). “A court’s factual

determination is clearly erroneous if it is illogical,

implausible, or without support in the record.” Retz v. Samson

(In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010) (citing United

States v. Hinkson, 585 F.3d 1247, 1261–62 & n.21 (9th Cir. 2009)

(en banc)).

The next step in our review of a mixed question is

determining whether the facts satisfy a legal rule. This is a

matter of statutory construction. We review a bankruptcy

court’s statutory construction and conclusions of law, including

interpretation of provisions of the Bankruptcy Code, de novo.

Einstein/Noah Bagel Corp. v. Smith (In re BCE W., L.P.),

319 F.3d 1166, 1170 (9th Cir. 2003). We therefore review de

novo the bankruptcy court’s determination that a debt does not

constitute a domestic support obligation within the meaning of
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§ 507(a)(1)(A). De novo means review is independent, with no

deference given to the trial court’s conclusion. See Rule 8013.

V. DISCUSSION

Section 507(a)(1), enacted as part of the Bankruptcy Abuse

Prevention and Consumer Protection Act of 2005 (“BAPCPA”),

provides first priority status for a debt which is a domestic

support obligation. Section 507(a)(1)(A) provides: “The

following expenses and claims have priority in the following

order: (1) First: (A) Allowed unsecured claims for domestic

support obligations that, as of the date of the filing of the

petition in a case under this title, are owed to or recoverable

by a . . . former spouse. . . .”

The term “domestic support obligation” is defined in

§ 101(14A): 

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

. . . 

(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;

(C) 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
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property settlement agreement; [or]

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

(iii) a determination made in accordance with

applicable non-bankruptcy law by a governmental unit;

and

(D) 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.

Our review of the MSA shows that the equalizing payment at

issue here is a debt (1) that accrued before the order for

relief in debtor’s chapter 13 case, (2) that is owed to his

former spouse, Olivia, (3) that was established prepetition by

reason of applicable provisions of a “divorce decree . . . or

property settlement agreement,” and (4) that has not been

assigned to a nongovernmental entity. The only issue in dispute

is whether the equalizing payment is “in the nature of alimony,

maintenance, or support.”

Whether a debt is actually in the nature of support is a

“factual determination made by the bankruptcy court as a matter

of federal bankruptcy law.” In re Chang, 163 F.3d at 1140. “In

determining whether a debtor’s obligation is in the nature of

support, the intent of the parties at the time the settlement

agreement is executed is dispositive.” In re Sternberg, 85 F.3d

at 1405.

A trial court should consider several factors in

determining how the parties intended to characterize

the obligation. Foremost, the trial court should

consider whether the recipient spouse actually needed

spousal support at the time of the divorce. In

determining whether spousal support was necessary, the

trial court should examine if there was an ‘imbalance

in the relative income of the parties’ at the time of

the divorce decree. The trial court should also
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consider whether the obligation terminates upon the

death or remarriage of the recipient spouse and

whether the payments are ‘made directly to the

recipient spouse and are paid in installments over a

substantial period of time.’ Finally, the labels

given to the payments by the parties may be looked at

as evidence of the parties’ intent.

Id.

Here, we can proceed no further with our review because 

Olivia failed to provide the transcript of the July 28, 2012

hearing, where the bankruptcy court announced its oral findings

and conclusions. Rule 8009(b) requires an appellant to file an

appendix to her brief with excerpts of the record, including a

transcript of the opinion, findings of fact, or conclusions of

law delivered orally by the court. On November 23, 2012, the

Panel issued an Order re Prosecution of Appeal which warned

Olivia of the consequences of her failure to provide a

transcript. Despite this notice, Olivia failed to respond. 

Olivia had the burden of showing the bankruptcy court’s

findings of fact were clearly erroneous. See Massoud v. Ernie

Goldberger & Co. (In re Massoud), 248 B.R. 160, 163 (9th Cir.

BAP 2000). We may affirm where the record is inadequate to show

clear error, see Friedman v. Sheila Plotsky Brokers, Inc.

(In re Friedman), 126 B.R. 63, 68 (9th Cir. BAP 1991), and we do

so here.

VI. CONCLUSION

For the reasons stated, we AFFIRM.