UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

In re: 

NELS E G OLSSON 

MAURA HELENA OLSSON 

Debtor. 

BRIAN S. KOCH, 

Plaintiff-Appellant, 

v. 

MAURA H. OLSSON, 

Defendant-Appellee. 

AIKEN, Chief Judge: 

Case No. 6:14-cv-01686-AA 

Bankr. Case. No. 13-62080-tmr-7 

Adv. Pro. No. 13-06132-tmr 

OPINION AND ORDER 

Plaintiff-Appellant Brian Koch appeals a decision of the 

United States Bankruptcy Court that ruled an attorney fee award 

entered against the defendant-appellee was not in the nature of 

child support and dischargeable. After review of the Bankruptcy 

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Case 6:14-cv-01686-AA Document 9 Filed 06/17/15 Page 1 of 7
Court's decision and the parties' arguments, 

decision. 

BACKGROUND 

I affirm the 

Prior to 2010, defendant-appellee Maura Olsson had custody 

of her minor child; plaintiff-appellant Brian Koch is the 

father. Koch was obligated to pay monthly child support, and he 

fell behind in his payments. In 2010, Koch filed for custody of 

the minor child, and Koch was awarded custody and Olsson was 

ordered to pay support. However, due to his previous childsupport arrearage, Olsson's monthly payments were applied as 

~set offs" against the amount of child support Koch owed Olsson. 

Pl.'s Suppl. Excerpt of Record at 33-34 (doc. 8). 

In or around December 2011, Olsson filed a Motion for Order 

to Show Cause why the operative parenting plan should not be 

modified. Olsson's motion was denied, and the state court found 

that the motion and supporting affidavit were meritless and 

misleading. Def. 's Suppl. Excerpt of Record at 12-14 (doc. 5-1). 

Subsequently, the state court awarded attorney fees to Koch, 

finding that fees should be awarded to deter others from 

bringing similar motions to show cause. Notably, the court did 

not order that the attorney fee award be applied as a ~set off" 

against the amount of child support owed by Koch. 

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On May 30, 2013, Olsson filed for bankruptcy protection 

under Chapter 7 of the Bankruptcy Code. Koch objected to the 

dischargeability of the attorney fee award, arguing that the 

attorney· fees fell within the ndomestic support obligations" 

exception to dischargeability. 11 U.S.C. § 523(a) (5) 

Bankruptcy Judge Renn entered judgment in favor of Olsson, 

finding that the debt was a general unsecured debt subject to 

discharge. Judge Renn reasoned that the attorney-fee award was 

entered for the purpose of penalizing Olsson and was not issued 

not for purposes of domestic or child support obligations. Koch 

now appeals to this court. 

DISCUSSION 

Section 523 (a) (5) of the Bankruptcy Code excepts from 

discharge any debt nfor a domestic support obligation." 11 

U.S. C. § 523 (a) ( 5) . Koch argues that the bankruptcy court erred 

in determining that the attorney fee judgment was not a support 

obligation and dischargeable. 

As he did before the Bankruptcy Court, Koch argues that the 

disputed attorney fee debt is a domestic support obligation 

because it was incurred in a custody proceeding and the minor 

child would be adversely affected if Olsson was permitted to 

discharge this debt. Olsson argues that the Bankruptcy Court 

correctly found that the disputed debt is not in the nature of 

3 - OPINION AND ORDER 

Case 6:14-cv-01686-AA Document 9 Filed 06/17/15 Page 3 of 7
support not a domestic support obligation. Therefore, Olsson 

maintains that the debt does not fall within the "domestic 

support obligation" exception to discharge and is dischargable 

in the bankruptcy proceeding. 

"Domestic support obligation" is defined as a debt: 

(A) owed to or recoverable by . a spouse, former 

spouse, or child of the debtor or such child's parent, 

legal guardian, or responsible relative. 

(B) in the nature of alimony, maintenance, or support 

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 

or after the date of the order for relief 

under this title, by reason of applicable 

of . an order of a court of record; 

before, on 

in a case 

provisions 

. 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. 

11 U.S.C. § 101(14A). The parties dispute only the second 

requirement, that the debt be "in the nature of support." 

To determine whether a debt is in the "nature of support," 

courts may consider the following factors: 1) the parties' 

intent that the debt be in the nature of support; 2) the label 

given to the payments; 3) the recipient's need for the support, 

generally determined by an imbalance of income; 4) the manner in 

which the payments are to be made; and 5) the ability of the 

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Case 6:14-cv-01686-AA Document 9 Filed 06/17/15 Page 4 of 7
payments to terminate when the recipient dies or remarries. In 

re Nelson, 451 B.R. 918, 921-22 (Bankr. D. Or. 2011); see also 

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

B.A.P. 1989). Upon review of Judge Renn's ruling, I find no 

error. 

I agree that the attorney fee award is not in the nature of 

support under the above factors. First, the record does not 

reflect that either Olsson or Koch intended the attorney-fee 

award to be considered support. Rather, as reflected by Koch's 

testimony, the award was intended to pay the fees of Koch's 

attorneys. Pl.'s Suppl. Excerpt of Record at 32 (doc. 8) 

(describing financial repercussions of attorney fee bill) . 

Second, the fee award was not labeled as support, and the state 

court did not order that the attorney fee award be applied to 

the amount of child support owed by Koch (as it ordered with 

respect to Olsson's child support payments). Third, no findings 

were made with respect to Koch's need for the attorney's fees or 

Olsson's ability to pay; rather, the state court imposed the fee 

award as a punitive measure intended to deter others from 

similar conduct. In fact, the state court's opinion letter 

explicitly stated: "the Court finds that [Olsson's] claims were 

not reasonable and attorney fees would deter others from 

asserting meritless claims." Def.'s Suppl. Excerpt of Record at 

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Case 6:14-cv-01686-AA Document 9 Filed 06/17/15 Page 5 of 7
30. Thus, the purpose of the fee award was to "punish" Olsson 

for bringing the Motion to Show Cause and deter others from 

bringing similar motions; it was not for the purpose of support. 

Finally, the state court did not order the fee award to be made 

on a monthly or similar basis. In other words, nothing about the 

fee award suggests that it was in the nature of support. 

Nonetheless, Koch argues that the disputed debt is a 

domestic support obligation because it arose out of custody 

proceedings and involved the best interests and welfare of the 

child. In so arguing, Koch relies primarily on In Re Rehkow, 

2006 WL 6811011 (9th Cir. BAP August 17, 2006), aff' d 239 Fed. 

Appx. 341 (9th Cir. Jun. 29, 2007). 

However, I find the facts of Rehkow distinguishable from 

this case. Rehkow involved attorney fees arising from disputes 

over the services of a mental health expert appointed to provide 

an opinion regarding custody and visitation. 2006 WL 6811011, at 

*1. The BAP held that "attorneys' fees incurred in child custody 

proceedings in which issues involving the best interests of the 

child are in dispute are in the nature of support and, thus, 

non-dischargeable in bankruptcy." Id. at *4. Because "all of the 

attorneys' fees awarded [] arose from the proceedings to 

determine custody of and visits to the former couple's minor 

child," and "were incurred in the best interests of and to 

6 - OPINION AND ORDER 

Case 6:14-cv-01686-AA Document 9 Filed 06/17/15 Page 6 of 7
support the minor child," the BAP held that the fee award was 

non-dischargeable under § 523 (a) (5). Id. 

Here, the attorney fee award did not arise from proceedings 

to determine custody, visitation rights or child support. 

Rather, it arose from the denial of Olsson's motion to show 

cause and the state court's finding that the motion was without 

merit; custody proceedings were never reopened or reevaluated. 

The fact that the fee award arose in the context of a custody 

dispute does not automatically render it a support obligation. 

Indeed, "[t] he legal question is not whether repayment of 

the debt will benefit the children, but whether the basis of the 

debt benefitted the children." In re Leibowitz, 217 F.3d 799, 

803 (9th Cir. 2000). Here, the record reflects that the basis of 

the debt was to punish Olsson and deter similar conduct. 

Therefore, it was not in the nature of support and does not fall 

within the "domestic support obligation" exception to discharge. 

CONCLUSION 

The decision of the Bankruptcy Court is AFFIRMED. 

IT IS SO ORDERED. 

Dated this ~ day of June, 2015. 

a.(FCLJ Ann Aiken 

United States District Judge 

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