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FILED

JUN 04 2014

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-13-1476-PaKiLa

) 

MARIA G. RIVERA, ) Bk. No. SA 11–22793-TA

)

Debtor. )

___________________________________)

)

)

MARIA G. RIVERA, )

)

Appellant, )

)

v. ) O P I N I O N

)

ORANGE COUNTY PROBATION )

DEPARTMENT, )

)

Appellee. ) 

___________________________________)

Argued and Submitted on May 15, 2014,

at Pasadena, California

Filed - June 4, 2014 ____________

Appeal from the United States Bankruptcy Court

for the Central District of California

Hon. Theodor C. Albert, U.S. Bankruptcy Judge, Presiding

 

Appearances: Leigh E. Ferrin, Esq. of Public Law Center for

appellant Maria G. Rivera; Adam C. Clanton, Esq. of

Orange County Counsel for appellee Orange County

Probation Department. 

Before: PAPPAS, KIRSCHER, and LATHAM,1 Bankruptcy Judges.

1

 Hon. Christopher B. Latham, U.S. Bankruptcy Judge for the

Southern District of California, sitting by designation.
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PAPPAS, Bankruptcy Judge:

Appellant, chapter 72 debtor Maria Rivera (“Debtor”) appeals

the order of the bankruptcy court determining that Appellee,

Orange County Probation Department (“Orange County”), did not

violate the discharge injunction in Debtor’s case when it

attempted to collect from her after bankruptcy because the debt

she owed to Orange County was excepted from discharge under

§ 523(a)(5) as a “domestic support obligation.” The issue

presented in this appeal is a novel one in this Circuit, and we

AFFIRM. 

FACTS

Prebankruptcy Events

Debtor’s minor son was incarcerated in Orange County from

2008 to 2010, for a total of 593 days. California law provides

that “[t]he father [or] mother . . . of a minor . . . shall be

liable for the reasonable costs of support of the minor while the

minor is . . . detained in . . . any institution or other place 

. . . pursuant to an order of the juvenile court.” CAL. WELF. &

INST. CODE § 903(a). The law endeavors, however, “to ensure that

liability is imposed only on persons with the ability to pay.”

CAL. WELF. & INST. CODE § 903(c). Moreover, the “costs of support” a

parent is required to pay are not the total costs of confinement,

but “only [the] actual costs incurred by the county for food and

food preparation, clothing, personal supplies, and medical

expenses, not to exceed . . . a maximum of thirty dollars ($30)

per day . . . .” Id. In addition to costs of support, California

2 Unless otherwise indicated, all chapter and section

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

all Rule references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001-9037. 

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law provides that “[t]he father [or] mother . . . of a minor . . .

shall be liable for the costs to the county or the court . . . of

legal services rendered to the minor by an attorney pursuant to an

order of the juvenile court.” CAL. WELF. & INST. CODE § 903.1(a).3

According to Orange County, the total cost to incarcerate

Debtor’s son amounted to approximately $420 a day. However, in

obedience to the limitation in the statute, it sought to collect

only $23.90 a day from Debtor, which represented the expense for

her son’s “food and food preparation, clothing, personal supplies,

and medical expenses” while he was incarcerated. In addition to

these expenses, Orange County sought $2,199 from Debtor for her

son’s legal representation while in custody. 

As was its practice, Orange County provided several 

statements to Debtor itemizing the expenses of her son’s

incarceration, along with the amount of the legal fees incurred

for his representation; it also sent Debtor a copy of court orders

requiring her to meet with a financial officer to determine her

ability to pay these costs pursuant to Cal. Welf. & Inst. Code

§§ 903(c), 903.1, and 903.45. Debtor did not respond to any of

these communications.4 

On May 10, 2010, $9,508.60 was paid to Orange County on

3

 The additional safeguards found in Cal. Welf. & Inst. Code 

§ 903(c) that require a parent to have the ability to pay, and

that place a cap on the amount to be paid, are not present in

§ 903.1 requiring that the parent pay for the minor’s legal

expenses. However, under Cal. Welf. & Inst. Code § 903.45, a

“county financial evaluation officer” must determine whether the

responsible person has the ability to pay all or part of the costs

under both § 903 and § 903.1. The officer then reports his or her

findings as to the parent’s ability to pay to the state court. 

4 While Debtor did not act on these statements or orders of

the court, the son’s father met with Orange County upon his

receipt of this information, and the parties agreed to a payment

plan he could afford, which was filed with the juvenile court.

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Debtor’s account,5 although this payment did not satisfy the full

outstanding balance of the costs. After Orange County sent

several more notices to Debtor about the remaining amount due, a

final notice was sent requiring her to appear for a court hearing

to determine her ability to pay. When Debtor failed to appear at

the hearing, on July 20, 2011, a judgment was entered by the

juvenile court requiring Debtor to pay to Orange County the

remaining support costs and legal expenses incurred while her son

was in custody, which amounted to $9,905.40.6

Bankruptcy Proceedings

Debtor filed a chapter 7 petition on September 12, 2011. 

Debtor listed Orange County as a priority, unsecured creditor in

her schedules, and Orange County received notice of the bankruptcy

filing. The chapter 7 trustee appointed in the case determined

there were no assets to administer, Debtor received a discharge on

January 4, 2012, and the bankruptcy case was closed January 10,

2012. 

After the case closed, assuming that the debt was excepted

5

 While it does not impact the issue on appeal, the record

is unclear as to the circumstances surrounding this payment. In

her declaration filed in the bankruptcy court, Debtor indicated

she paid this amount from the proceeds of the sale of her house. 

However, the collections manager for Orange County stated in her

declaration that, on April 28, 2010, an escrow company requested

balance information from Orange County concerning the amount due

on its claim, and on May 10, 2010, the escrow company made the

$9,508.60 payment to Orange County. This suggests, contrary to

Debtor’s contention that she voluntarily paid this sum, that the

escrow company submitted the payment to Orange County to satisfy a

lien or similar charge on Debtor’s home. 

6 Debtor has not argued that she is not indebted to Orange

County, nor has she challenged the amount of the debt alleged by

Orange County, in this appeal.

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from discharge as a domestic support obligation under § 523(a)(5),

Orange County resumed its efforts to collect the debt from Debtor

by continuing to send her statements of the amount due, and a

representative of the creditor telephoned Debtor to persuade her

to pay the debt. 

Debtor sought counsel concerning Orange County’s collection

activities, who corresponded with the Orange County’s attorney, 

expressing the view that the debt had been discharged. When

Orange County would not relent, on April 18, 2013, Debtor filed a

motion to reopen the bankruptcy case, along with a motion for an

order directing Orange County to show cause (“OSC”) why it should

not be held in contempt for violation of the discharge injunction. 

The bankruptcy court reopened the case, entered the OSC, scheduled

a hearing, and requested briefing from the parties, in particular

asking them to address the changes to §§ 523(a)(5) and 101(14A)

made in 2005 by the Bankruptcy Abuse Prevention and Consumer

Protection Act (BAPCPA). 

After considering the parties’ briefing, and shortly before

the scheduled hearing, the bankruptcy court issued a lengthy,

thoughtful tentative ruling (the “First Tentative”). In it, the

court concluded that Orange County had violated the discharge

injunction because the debt it sought to collect from Debtor after

entry of the discharge order was not excepted from discharge under

§ 523(a)(5). The First Tentative noted the paucity of case law

and legislative history concerning the scope of § 523(a)(5) in

relation to debts such as those held by Orange County after

BAPCPA. However, the court agreed with the conclusion reached by

the bankruptcy court in In re Rosen, 11-07651-BHL-7, 2012 WL

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1565617, at *2 (Bankr. S.D. Ind. May 2, 2012), a case with facts

similar to those in this case, that “an involuntary detention in a

juvenile facility hardly seems to fit within the purpose and

spirit [of §§ 523(a)(5) and 101(14A)].” The bankruptcy court also

discussed pre-BAPCPA cases that came to the same conclusion. 

In addition, in the First Tentative, the bankruptcy court

cited In re Jerald C., 678 P.2d 917 (Cal. 1984), a California

Supreme Court decision, for the proposition that the types of

expenses specified in Cal. Welf. & Inst. Code § 903 were costs

“incurred primarily in protecting society from miscreant 

minors . . . . ” Based upon this conclusion, and noting it must

construe exceptions to discharge narrowly, the bankruptcy court

concluded that the costs were not in the nature of support for

purposes of § 523(a)(5). 

At the OSC hearing on June 25, 2013, Orange County argued

that the First Tentative should not be adopted as the bankruptcy

court’s final ruling because, among other reasons, In re Rosen had

been incorrectly decided, and the California Supreme Court, in

Cnty. of San Mateo v. Dell J., 762 P.2d 1202 (Cal. 1988), had

significantly modified In re Jerald C. After listening to the

parties’ arguments, the bankruptcy court determined it would

benefit from further briefing on the issues, and it ordered the

parties to address the impact of Cnty. of San Mateo on whether a

minor’s expenses, as limited in Cal. Welf. & Inst. Code § 903,

constitute support obligations of the minor’s parents. In

addition, the court noted it needed further evidence of the amount

of Debtor’s damages if it were to finally decide that Orange

County had violated the discharge injunction. The court continued

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the OSC hearing.

Before the continued hearing, the bankruptcy court issued

another tentative ruling (the “Second Tentative”) in which it

reversed course and decided that the debt owed to Orange County

was excepted from discharge in Debtor’s bankruptcy case under

§ 523(a)(5) and, therefore, Orange County had not violated the

discharge injunction. In the Second Tentative, the bankruptcy

court again noted that In re Rosen was the only decisional law it

could locate discussing this issue post-BAPCPA; however, upon

further review of that opinion, the court agreed with Orange

County that In re Rosen had been incorrectly decided because that

bankruptcy court had primarily relied on a pre-BAPCPA case law,

and the court had not adequately analyzed the significant changes

to §§ 523(a)(5) and 101(14A) made by Congress in BAPCPA. Instead,

the bankruptcy court concluded that the plain language of the Code

provisions, as amended by BAPCPA, compelled the conclusion that

the debt was excepted from discharge as a domestic support

obligation owed to a governmental unit. The bankruptcy court also

reasoned that, in Cnty. of San Mateo, the California Supreme Court

had reviewed the amended Cal. Welf. & Inst. Code § 903 and

determined that the expenses provided in the statute are in the

nature of support. For these reasons, the bankruptcy court’s

conclusion in the Second Tentative was to deny Debtor’s motion to

hold Orange County in contempt. 

At the continued hearing on August 27, 2013, after again

considering the parties’ arguments, the bankruptcy court announced

that it would deny Debtor’s motion because the debt at issue was

excepted from discharge pursuant to § 523(a)(5). In its comments,

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the court largely restated the substance of the Second Tentative;

however, it did not expressly adopt the Second Tentative in making

its oral ruling. 

The bankruptcy court requested that counsel for Orange County

prepare an order for entry by the court consistent with the oral

ruling. Orange County’s counsel thereafter lodged a proposed

order, but Debtor objected to its form and submitted an

alternative proposed order. Debtor’s objection took issue with

the language included in the title and content of the proposed

order, and in particular, pointed out that the court had not

expressly adopted the Second Tentative in making its oral ruling

at the continued hearing. 

Without mentioning Debtor’s objection, on September 16, 2013,

the bankruptcy court entered the order proposed by Orange County. 

That order purported to adopt the Second Tentative, provided that

Debtor’s debt to Orange County was excepted from discharge as a

domestic support obligation, and declined to find that Orange

County was in contempt. 

Debtor filed a timely notice of appeal. 

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334

and 157(b)(2)(I). We have jurisdiction under 28 U.S.C. § 158.

ISSUES

Whether the bankruptcy court erred in requesting additional

briefing by the parties after the initial hearing on the OSC.

Whether the bankruptcy court erred in entering the order

proposed by Orange County without expressly ruling on Debtor’s

objection to the form of that order. 

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Whether the bankruptcy court erred in determining the debt

owed to Orange County was a “domestic support obligation” that was

excepted from discharge in Debtor’s bankruptcy case under

§ 523(a)(5).

STANDARDS OF REVIEW

 We review case management decisions of the bankruptcy court

for abuse of discretion. GCB Commc’ns, Inc. v. U.S. S. Commc’ns,

Inc., 650 F.3d 1257, 1262 (9th Cir. 2011) (citing O’Neill v.

United States, 50 F.3d 677, 687 (9th Cir. 1995)).

We review the bankruptcy court’s interpretation and

application of a local rule for abuse of discretion. Price v.

Lehtinen (In re Lehtinen), 564 F.3d 1052, 1058 (9th Cir. 2009),

cert. denied, 558 U.S. 1048 (2009); In re Nguyen, 447 B.R. 268,

276 (9th Cir. BAP 2011).

 “We review the bankruptcy court’s factual determination that

a debt was for alimony, maintenance, or support for clear error. 

‘To the extent that questions of fact cannot be separated from

questions of law, we review these questions as mixed questions of

law and fact applying a de novo standard.’” Seixas v. Booth (In

re Seixas), 239 B.R. 398, 401 (9th Cir. BAP 1999) (quoting Jodoin

v. Samayoa (In re Jodoin), 209 B.R. 132, 135 (9th Cir. BAP 1997)

(internal citation omitted)); see also Beaupied v. Chang (In re

Chang), 163 F.3d 1138, 1140 (9th Cir. 1998) (“When determining

whether a particular debt is within the § 523(a)(5) exception to

discharge, a court considers whether the debt is ‘actually in the

nature of . . . support.’ This question is a factual

determination made by the bankruptcy court as a matter of federal

bankruptcy law.”) (internal citations omitted)). 

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The bankruptcy court’s interpretation of § 523(a)(5) is a

question of law we review de novo. Bendetti v. Gunness (In re

Gunness), 505 B.R. 1, 4 (9th Cir. BAP 2014); Cnty. of El Dorado v.

Crouch (In re Crouch), 199 B.R. 690, 691 (9th Cir. BAP 1996).

DISCUSSION

I. 

The bankruptcy court did not err in considering

additional authority at the OSC hearing, in requesting

further briefing, or in entering the order proposed by

Orange County.

Although Debtor’s brief on appeal primarily focuses on

whether the Orange County debt is excepted from discharge per

§ 523(a)(5), she also argues that the bankruptcy court committed

two procedural errors. First, Debtor contends that the court

erred in allowing Orange County to raise and discuss, at the first

OSC hearing, a case not cited in its briefing before the hearing. 

Second, citing Local Rule 9021-1(b), Debtor contends that the

bankruptcy court erred by not ruling on her objection to the form

of Orange County’s proposed order before entering it. We can

easily dispense with these contentions.

First, Debtor claims the bankruptcy court erred in allowing

Orange County to discuss a more recent California Supreme Court

decision at the initial OSC hearing in response to the First

Tentative that it had not cited in its prior briefing. To support

this claim of error, Debtor cites appellate authority holding a

litigant waives an argument on appeal if it is not addressed in

its opening brief. 

While it is certainly correct that an issue not addressed by

a party in its opening brief on appeal may be waived, see Francis

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v. Wallace (In re Francis), 505 B.R. 914, 920 (9th Cir. BAP 2014)

(citing United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir.

1990)), the same is not true at the trial court level. See El

Pollo Loco, Inc. v. Hashim, 316 F.3d 1032, 1040-41 (9th Cir. 2003)

(holding the trial court did not abuse its discretion in

considering a new argument raised in a reply brief so long as the

adverse party is given an opportunity to respond). Here, at the

initial OSC hearing, Orange County cited Cnty. of San Mateo to

inform the court of a more recent, and what it urged was a more

complete, analysis of Cal. Welf. & Inst. Code § 903 by the

California Supreme Court. In doing so, we understand that Orange

County was responding to the First Tentative issued shortly before

the hearing, in which the bankruptcy court relied on an older

California Supreme Court case discussing the California statute,

In re Jerald C. After being advised of the more recent, and

arguably more relevant authority, the bankruptcy court ordered

both parties to brief its impact on the resolution of the issues

pending before the court in order to make an informed decision,

and continued the hearing. 

Debtor did not, at the time, object to the bankruptcy court’s

decision to require further briefing and to continue the OSC

hearing, and we decline to entertain Debtor’s objection on appeal. 

Moreover, in our view, Debtor was not prejudiced by the court’s

approach; indeed, to us, this seems to be an altogether reasonable

and pragmatic decision by the bankruptcy court in managing this

case. Put simply, it was not an abuse of discretion.

Next, Debtor argues that the bankruptcy court abused its

discretion by entering the order lodged by Orange County without

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expressly ruling on her objection to the form of the proposed

order. Debtor invokes Local Rule 9021-1(b)(3), which outlines the

process by which proposed orders are to be submitted to the

bankruptcy court for entry by the court and supplies a procedure

if there is an objection to the proposed order. See Local Rule

9021-1(b)(3)(A), (B). In that event, 

Unless the court otherwise directs, a proposed

order will not be signed by the judge unless

(i) opposing counsel has endorsed thereon an

approval as to form; (ii) opposing counsel has

stipulated thereto on the record at the

hearing[;] or (iii) the time for objection to

a form of order . . . has expired . . . . If

it finds the ends of justice so requires, the

court may conduct a hearing on the proper form

of the order or decide any objection thereto

without a hearing.

Local Rule 9021-1(b)(3)(C). 

Here, the bankruptcy court entered the order lodged by Orange

County after Debtor filed her objection and alternative proposed

order. By entering the order prepared by Orange County, despite

Debtor’s objection, the bankruptcy court effectively resolved the

objection without a hearing, as is allowed by the Local Rule. 

While perhaps the bankruptcy court should have specifically

acknowledged Debtor’s objection before entering the Orange County

proposed order, not doing so does not amount to an abuse of

discretion under a Local Rule that prescribes a procedure

“[u]nless the court otherwise directs.” Again, even if the

bankruptcy court should have addressed Debtor’s objection to the

order proposed by Orange County, we perceive no prejudice to

Debtor from the bankruptcy court’s decision to promptly enter that

order. 

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Finally, that the order proposed by Orange County and entered

by the court adopts the Second Tentative, even though the

bankruptcy court did not expressly so instruct at the hearing, is

also not an abuse of discretion. In deciding to incorporate the

reasoning of the Second Tentative, we presume the court was

exercising its discretion to modify its oral ruling in the final

order. See Rule 7052(b); Meyer v. Lenox (In re Lenox), 902 F.2d

737, 740 (9th Cir. 1990) (holding that bankruptcy courts “have the

power to reconsider, modify[,] or vacate their previous orders so

long as no intervening rights have become vested”) (citing

Chinichian v. Campolongo (In re Chinichian), 784 F.2d 1440, 1443

(9th Cir. 1986); see also Cashco Fin. Servs., Inc. v. McGee (In re

McGee), 359 B.R. 764, 774 n.9 (9th Cir. BAP 2006) (noting that a

court’s written order controls over an inconsistent oral ruling). 

As noted above, the bankruptcy court’s oral ruling at the hearing

closely tracked, and referred to, the analysis of the issues it

made in the Second Tentative. The court did not abuse its

discretion when it took the additional step of expressly adopting

the Second Tentative in the order since, at bottom, the proposed

order conformed to the court’s oral ruling. 

II. 

 The debt owed to Orange County is a domestic support 

obligation that is excepted from discharge.

Debtor argues that the plain language of §§ 523(a)(5) and

101(14A), the legislative history of the BAPCPA amendments to

those statutes, and federal and state case law, all compel the

conclusion that the debt owed to Orange County was discharged in 

Debtor’s bankruptcy case. Orange County counters, arguing that,

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applying the BAPCPA amendments to the Code, those provisions

plainly except its debt from discharge, despite the reasoning of

pre-BAPCPA cases, and one post-BAPCPA case, to the contrary.

A. Pre-BAPCPA

Prior to 2005, § 523(a)(5) provided:

(a) A discharge under section 727 . . . of

this title does not discharge an individual

debtor from any debt—

(5) to a spouse, former spouse, or child of

the debtor, for alimony to, maintenance for,

or support of such a spouse or child, in

connection with a separation agreement,

divorce decree or other order of a court of

record, determination made in accordance with

State or territorial law by a governmental

unit, or property settlement agreement, but

not to the extent that–

(A) such debt is assigned to another entity,

voluntarily, by operation of law, or otherwise

. . .; or

(B) such debt includes a liability designated

as alimony, maintenance, or support, unless

such liability is actually in the nature of

alimony, maintenance, or support[.]

In interpreting and applying this statute, the Panel had

held, “[u]nder a literal application of § 523(a)(5), to be

nondischargeable a debt must be owed specifically to the ‘spouse,

former spouse, or child.’” Eisen v. Linn (In re Linn), 38 B.R.

762, 763 (9th Cir. BAP 1984). The Panel continued the “literal

application” of the language of § 523(a)(5) in a case factually

similar to the case at bar in Cnty. of El Dorado v. Crouch (In re

Crouch), 199 B.R. 690 (9th Cir. BAP 1996). In In re Crouch, El

Dorado County, California, sought to except from discharge a debt

for costs incurred in housing a debtor’s minor son in a juvenile

detention facility pursuant to Cal. Welf. & Inst. Code § 602. Id.

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at 691. The Panel held that the debtor’s obligation to the county

was discharged because, although in the nature of support, the

debt was payable to the county, not to the “former spouse, spouse,

or child of the debtor.” Id. at 693; see also In re Spencer, 182

B.R. 263, 267-68 (Bankr. E.D. Cal. 1995) (holding that a debt

under the old version of Cal. Welf. & Inst. Code § 903 was

discharged because the debt “pursuant to Cal. Welf. & Inst. Code

§ 903 was owed and payable directly to the [county], not directly

to the [d]ebtor’s minor children . . . [t]herefore, although it

arises from the support of [d]ebtor’s minor children, the

obligation does not fall within the exception to discharge under

11 U.S.C. § 523(a)(5).”). 

B. BAPCPA

BAPCPA significantly changed the structure, language, and

scope of § 523(a)(5). Post-2005, § 523(a)(5) simply provides that

“[a] discharge under section 727 . . . does not discharge an

individual debtor from any debt— . . . for a domestic support

obligation[.]” To give this discharge exception meaning, BAPCPA

added a new definitional section, § 101(14A), to the Code: 

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

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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 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

(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 collection the debt.

The term “governmental unit,” as used in § 101(14A), is also

defined in § 101(27), and that definition includes a State and its

agencies and departments.7

 

As can be seen, compared to the pre-2005 Code, Congress

modified § 523(a)(5) in BAPCPA by “moving and refining the detail

of what constitutes a domestic support obligation into a new

definitional provision [of] § 101(14A).” In re Gunness, 505 B.R.

at 4. These amendments “enabled Congress to utilize a uniform

detailed definition of the term ‘domestic support obligation’ in

7

 Section 101(27) provides: 

The term “governmental unit” means United

States; State; Commonwealth; District;

Territory; municipality; foreign state;

department, agency, or instrumentality of the

United States . . . , a State, a Commonwealth,

a District, a Territory, a municipality, or a

foreign state; or other foreign or domestic

government. 

The parties do not dispute that Orange County is a governmental

unit. 

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several different sections of the [B]ankruptcy [C]ode.”8 Id. at 5

(citing 2 COLLIER ON BANKRUPTCY ¶ 101.14A (Alan N. Resnick & Henry J.

Sommer eds., 16th ed.); Deemer v. Deemer (In re Deemer), 360 B.R.

278, 280-81 (Bankr. N.D. Iowa 2007)). 

In addition to this restructuring, BAPCPA also enhanced the

definition of a support obligation in two ways as compared to the

prior statute, which are significant in this appeal. First, to

constitute a nondischargeable support obligation, no longer must a

debt be owed only “to a spouse, former spouse, or child of the

debtor.” As the result of the 2005 amendments, debts that are

“owed to or recoverable by” a “governmental unit” may also

constitute domestic support obligations. § 101(14A)(A)(ii); see

also In re Gunness, 505 B.R. at 4 (comparing the former statutes

with the BAPCPA revisions).9 And second, BAPCPA expanded the

“nature” of the debt that is excepted from discharge as a domestic

8 The term “domestic support obligation” (“DSO”) appears in

several other Code provisions, including, for example:

§ 362(b)(2)(A)(ii) and (B) (the automatic stay does not prohibit

the establishment or modification of a DSO, or the collection of a

DSO from property that is not property of the estate); § 507(a)(1)

(DSO granted a first priority in distributions to creditors); 

§ 707(c)(3) (bankruptcy court may not dismiss a bankruptcy case if

debtor proves it is necessary to satisfy a claim for a DSO); 

§ 1307(c)(11) (bankruptcy court may dismiss a case for failure of

debtor to pay a DSO); § 1325(a)(8) (bankruptcy court shall confirm

debtors plan if, among other things, debtor is current on all

post-petition DSO payments); § 1325(b)(2) (post-petition DSO

subtracted from calculation of “disposable income”); and § 1328

(debtor not entitled to a discharge unless all DSO payments are

made).

9 To the extent that Cnty. of El Dorado v. Crouch (In re

Crouch), 199 B.R. 690, 692 (9th Cir. BAP 1996), Eisen v. Linn (In

re Linn), 38 B.R. 762, 763 (9th Cir. BAP 1984), and In re Spencer, 182 B.R. 263, 267-68 (Bankr. E.D. Cal. 1995) decided that, to be

excepted from discharge under § 523(a)(5) a debt must be owed

directly to, and only to, a debtor’s spouse, former spouse, or

child, those holdings have been abrogated by the BAPCPA

amendments. 

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support obligation. Under the revised Code, the inquiry now is

whether a debt is “alimony, maintenance, or support (including

assistance provided by a governmental unit) of such spouse, former

spouse, or child of the debtor . . . .” § 101(14A)(B) (emphasis

added).10

C. The Orange County Debt

Given the changes made by BAPCPA, was the Orange County debt

excepted from discharge in Debtor’s bankruptcy case?

The answer depends upon an interpretation of § 101(14A) and

amended § 523(a)(5), and any interpretation of the Bankruptcy Code

begins, and sometimes ends, with its text. Ransom v. FIA Card

Servs., N.A., 131 S. Ct. 716, 723-24 (2011); Danielson v. Flores

(In re Flores), 735 F.3d 855, 859 (9th Cir. 2013) (en banc)

(citing Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir. 2011),

cert. denied, 133 S. Ct. 256 (2012)). “Furthermore, ‘the words of

a statute must be read in their context and with a view to their

place in the overall statutory scheme.’” In re Flores, 735 F.3d

at 859 (quoting Gale v. First Franklin Loan Servs., 701 F.3d 1240,

1244 (9th Cir. 2012)). “If the statutory language is unambiguous

and the statutory scheme is coherent and consistent, judicial

inquiry must cease.” Fireman’s Fund Ins. Co. v. Plant Insulation

Co. (In re Plant Insulation Co.), 734 F.3d 900, 910 (9th Cir.

2013) (citations and internal quotation marks omitted). Of

10 While we conclude the language of the applicable Code

provisions is plain, requiring no further inquiry concerning the

intent of Congress in enacting the relevant BAPCPA amendments, we

note that the legislative history of these amendments, for the

most part, merely restates the provisions of the new statutes

without providing any commentary about, among other changes, the

addition of a governmental unit as a creditor. See H.R. REP. No.

109-31, 109th Cong., 1st Sess. 59 (2005). 

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course, to be true to the policies of the Code, courts must limit

the exceptions to discharge provisions to those plainly expressed

in § 523(a). Bullock v. BankChampaign, N.A., 133 S. Ct. 1754,

1760 (2013); Sachan v. Huh (In re Huh), 506 B.R. 257, 267 (9th

Cir. BAP 2014) (en banc). 

Applying the plain language of the Code provisions to the

facts of this case, we conclude that the debt owed by Debtor to

Orange County qualifies as a nondischargeable domestic support

obligation because, without factual dispute, that debt: 

(1) accrued before the order of relief; (2) is owed to a

governmental unit; (3) was incurred for the support of Debtor’s

child as “assistance provided by a governmental unit;” (4) was

established before Debtor’s bankruptcy by an order of the state

court; and (5) has not been assigned to a nongovernmental entity

for collection.

As to the satisfaction of these elements, Debtor takes issue with

only one of them, (3) above, arguing that the bankruptcy court’s

focus on the phrase “in the nature of support” in

[§] 101(14A) while ignoring the term “domestic” in

[§] 523(a)(5) was clear error. The plain language

of the two sections must be read together. When

read together, it is apparent that the purpose of

[§§] 101(14A) and 523(a)(5) is to prevent the

debtor from discharging obligations that arise from

being a parent or a spouse. It is not to reimburse

government agencies for money spent in housing

children brought into our delinquency system for

the protection of society. 

Appellant’s Op. B. at 12. Instead, Debtor argues, we should adopt

the reasoning of In re Rosen, which found a debt similar to the

one at issue here was not excepted from discharge. 2012 WL

1565617, at *1. 

While the determination of whether the nature of the debt is

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“alimony, maintenance, or support” is a question of federal law,

“[one] relevant factor for the bankruptcy court to consider in

making this determination is how the particular state law

characterizes the debt.” In re Chang, 163 F.3d at 1140 (citing

Marks v. Catlow (In re Catlow), 663 F.2d 960, 962 (9th Cir.

1981)). In our view, California law would characterize the Orange

County debt as support. 

Acting under authority of the California statutes, Orange

County seeks to recover from Debtor the daily expense it incurred

in providing her son “food and food preparation, clothing,

personal supplies, and medical expenses” while he was

incarcerated. CAL. WELF. & INST. CODE § 903(c). These sorts of

costs are quintessentially support expenses, whether they are

incurred by a child’s parents or by a governmental unit. See,

e.g., Leppaluoto v. Combs (In re Combs), 101 B.R. 609, 615-16 (9th

Cir. BAP 1989) (explaining that support obligations are those that

provide a “necessity of life”); Lightner v. Lightner (In re

Lightner), 77 B.R. 274, 277 (Bankr. D. Mont. 1987) (stating that

support allows an individual to “maintain daily necessities”)

(citing Yeates v. Yeates (In re Yeates), 807 F.2d 874, 879 (10th

Cir. 1986) and Long v. Calhoun (In re Calhoun), 715 F.2d 1103,

1109 (6th Cir. 1983)); see also Leibowitz v. County of Orange (In

re Leibowitz), 217 F.3d 799, 803 (9th Cir. 2000) (holding that

child support payments due to a county were excepted from

discharge under former § 523(a)(18) because the expenses the

county sought to collect from the debtor benefitted the child);

Gianakas v. Gianakas (In re Gianakas), 917 F.2d 759, 763 (3d Cir.

1990) (holding “[a]n obligation that serves to maintain daily

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necessities such as food, housing[,] and transportation is

indicative of a debt intended to be in the nature of support.”). 

While Debtor argues that Orange County is effectively seeking

to tax her for the cost of protecting society through the

incarceration of her son, the California statutes belie that

suggestion. In burdening the parent of an incarcerated minor for

expenses incurred by a county, California law carefully limits the

types of charges that may be assessed to traditional support

obligations. As noted above, Cal. Welf. & Inst. Code § 903(c)

provides that the “costs of support” that can be levied against

the parent in this context include “only [the] actual costs

incurred by the county for food and food preparation, clothing,

personal supplies, and medical expenses, not to exceed . . . a

maximum of thirty dollars ($30) per day . . . .” 

The limitation on the kinds of expenses that can be recovered

from the parent of an incarcerated minor in the California

statutes represents a change from its prior law. In In re Jerald

C., the California Supreme Court had held, in resolving a

constitutional challenge to the prior version of Cal. Welf. &

Inst. Code § 903, that expenses incurred by the government in

confining juvenile offenders were “not for the purpose of

providing support and maintenance for the committed person but for

the purpose of protecting society.” 678 P.2d 917, 921 (Cal.

1984). However, the court’s decision left open the possibility

that the California legislature might amend the statute to

“require responsible parents to pay a part of the costs of

maintaining a minor in a county institution.” Id. at 925 (Kaus,

J., concurring). In a clear response to In re Jerald C., the

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California legislature amended Cal. Welf. & Inst. Code § 903 to

its present form to delineate the specific costs of support that

could be recovered by a county, and to place a cap on the total

amount that was recoverable. Addressing a challenge to the

amended statute in Cnty. of San Mateo v. Dell J., 762 P.2d 1202

(Cal. 1988), the supreme court held the statute was

constitutional, and characterized the newly listed kinds of

recoverable expenses in Cal. Welf. & Inst. Code § 903(c) as those

“for the reasonable costs expended for support and maintenance of

the minor while placed outside the family home.” Id. at 1211. 

As can be seen, Debtor’s argument that the costs sought to be

recovered from Debtor by Orange County encompass more than support

debts is inconsistent with state statutory and case law. 

Debtor’s other arguments also lack merit. For example, in

construing § 101(14A), she urges that, instead of relying on the

meaning of “support obligation,” we should focus on the word

“domestic.” To Debtor, inclusion of “domestic” in the defined

term requires that only those support obligations that arise out

of a familial relationship are covered. 

While Debtor’s contention may have prevailed prior to 2005,11

11 For example, in 1998, the Ninth Circuit observed that:

The § 523(a)(5) exception to discharge strikes

a balance between competing policies. On the

one hand, the goal of providing a “fresh

start” to the bankrupt debtor requires that

exceptions to discharge be confined to those

plainly expressed. In re Klapp, 706 F.2d 998,

999 (9th Cir.1983). On the other hand, this

court has recognized “an overriding public

policy favoring the enforcement of familial

obligations.” Shaver v. Shaver, 736 F.2d

1314, 1316 (9th Cir.1984).

In re Chang, 163 F.3d at 1140.

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since BAPCPA, this argument is foreclosed. By adopting the

definition of domestic support obligation in § 101(14A) which

includes “assistance given by a governmental unit,” provided to

the “child of the debtor,” Congress expanded the scope of that

term beyond strictly family incurred debts. In other words, while

the Code now requires that there be a family tie between the

recipient of the support and the debtor, the BAPCPA definition

crafted by Congress provides that debts owed to a governmental

unit can qualify as a domestic support obligation.12

Debtor also urges us to adopt the reasoning of In re Rosen,

noting the lack of binding, or even other persuasive precedent on

this issue. But, like the bankruptcy court, we disagree with the

reasoning of In re Rosen, and thus we respectfully decline to

follow it, particularly in the light of the California statutes

and the case law interpreting those laws. 

In In re Rosen, Montgomery County, Indiana argued that its

debt for a portion of the expenses it incurred in housing the

debtor’s minor son in a juvenile detention facility was excepted

from discharge under § 523(a)(5). The bankruptcy court decided

that even though the county had provided support for the debtor’s

son while he was detained, “an involuntary detention in a juvenile

facility hardly seems to fit within the purpose and spirit of the

statute,” and therefore concluded that the debt was not excepted

from discharge under § 523(a)(5). In re Rosen, 2012 WL 1565617,

at *2. 

In making its decision, the bankruptcy court relied on a pre12 While, in this context, the creditor is not a family

member of the debtor, the debt in question represents the cost of

providing support to debtor’s relative, her son. In this sense,

then, the “obligation” is a domestic one in the traditional sense.

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BAPCPA case, DeKalb Cnty. Div. of Family and Children Servs. v.

Platter (In re Platter), 140 F.3d 676 (7th Cir. 1998). In that

case, DeKalb County, Indiana sought to recover expenses it

incurred in housing a debtor’s minor son in a juvenile detention

facility. The bankruptcy court concluded, and the district court

agreed, that the debt was dischargeable. On appeal, the Seventh

Circuit reviewed the applicable Indiana statute, and concluded

“[t]he plain meaning of § 523(a)(5) does not cover the present

situation, where the debtor owes a governmental agency directly

for the support of the debtor’s child.” Id. at 681. Notably, the

Seventh Circuit suggested a pragmatic solution to the county’s

predicament: 

If government entities . . . do not wish to be

left providing room and board to juvenile

delinquents without a means of collecting

against bankrupt parents, then they may lobby

Congress for another amendment to § 523(a)(5)

. . . . If we accept [the county’s]

invitation to disregard § 523(a)(5) as it

currently exists we would be usurping the

authority of these elected bodies through an

act of judicial legislation as well as

ignoring the plain meaning of the statute. 

This we cannot do.

Id. at 683. 

We decline to follow In re Rosen because we do not believe

the bankruptcy court in that case properly accounted for the

considerable changes to §§ 523(a)(5) and 101(14A) occasioned by

BAPCPA, and because it relied on the Seventh Circuit’s pre-BAPCPA

analysis of § 523(a)(5). Rather, we agree with the bankruptcy

court’s statement in this case that: “[t]he court is left to

conclude that the change in [§§ 523(a)(5) and 101(14A) as

implemented by BAPCPA] was probably in deliberate response to

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cases like . . . [In re] Platter and several others which have

found obligations in the nature of support still dischargeable,

but only because of the narrow language of old § 523(a)(5).” 

Simply put, Congress broadened the categories of creditors that

could take advantage of the § 523(a)(5) exception to discharge in

BAPCPA, and Orange County, as a governmental unit, now qualifies

for an exception to discharge in this case. 

CONCLUSION

Because of the intervention of BAPCPA, we are not bound to

apply our pre-2005 case law deciding that a debt owed to a county

for the expenses of incarcerating the debtor’s child is discharged

in bankruptcy. See Ball v. Payco-General Am. Credits, Inc. (In re

Ball), 185 B.R. 595, 597 (9th Cir. BAP 1995) (“We will not

overrule our prior rulings unless a Ninth Circuit Court of Appeals

decision, Supreme Court decision or subsequent legislation has

undermined those rulings.”). Instead, by applying the plain

language of amended § 523(a)(5) and new § 101(14A), we conclude

that the debt Debtor owes to Orange County is excepted from

discharge as a domestic support obligation.13 We therefore AFFIRM

the order of the bankruptcy court denying Debtor’s motion to hold

Orange County in contempt for violating the discharge injunction. 

13 Debtor did not separately challenge Orange County’s

inclusion of the legal expenses it incurred in providing

representation for Debtor’s son in the debt it claimed to be

excepted from discharge. In other contexts, the Ninth Circuit has

held that fees incurred for the minor’s benefit are in the nature

of support. In re Lebowitz, 217 F.3d at 803 (holding that costs

that benefitted the child were in the nature of support and

nondischargeable); In re Chang, 163 F.3d at 1141 (holding court

costs incurred for the benefit of a debtor’s child were support

under § 523(a)(5)). However, because Debtor has not argued that,

even if the living expense components of the debt are not

discharged, the same should not be true of the legal costs, we do

not address that point in this appeal.

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