# FILED

Novemb er 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

LARRY LeMAS TERS, ) ) Plaintiff/Appellee, ) ) ) Davidson C ircuit VS. ) No. 96D -82 ) ) Appeal N o. LINDA LeMA STERS ROSS, ) 01A01-9702- CV-00070 ) Defenda nt/Appella

nt. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE
THE HONORABLE MURIEL ROBINSON, JUDGE

For the Plaintiff/Appellee : For the D efendant/ Appellant : Daniel C. Masten Charles G albreath Richard D. Tay lor, Jr. Nashville, Tennessee V.A. (Bo) Melton, Jr. Nashville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH , JR., JUD G E-2- 

## O P I N I O N

This appeal concerns the enforc eability of an India

na judgm ent for unp aid child support. The judgm

ent credi tor filed an action to registe r and enforce the j udgmen t in the Circ uit Court f

or Davids on Coun ty. The jud gment debtor cont

ested the enforce ability

of t he debt onthe gro und tha t it had bee n di sch arg ed i n ba nkr upt cy. Follow ing a bench tr

ial, the trial cour

t held that t

he judgm

ent had n ot bee n discharge d, and the j udgmen t debtor ap pealed. We af

firm the trial court’ s conclusion that the d ebt for unp aid child support was not dis chargeable in bankru ptcy.

I.
LarryLeMasters and Linda LeMasters Ro ss were divorced in Indiana in September

1987. Mr. LeMasters receive d custody of the par

ties’ da ughter, a nd Ms. Ross was directed to payMr. LeMasters c hild support. Apparen tly, Ms. Ross di d not live up to her child support obligation or other obl igation s in the di vorce decree . On September

25, 19 89, af

ter th e part ies’ d au ghter became em ancipated by mar

riage, Mr. LeMaster s obtained a judgm ent against

Ms. Ross i n the Super

ior Court f

or Marion Cou nty, Indiana f

or $1,140 i n unpaid child support, $2,089.54 payable to Mr. LeMasters as a r esu lt o f th e di vis ion of t he mar ita l pr ope rty, and $ 450 f or att orney’s fees incurre d to colle ct the chil d suppo rt arrearage.
Approxim

ately one month after

Mr. LeMasters obtained his Indiana j udgmen t, Ms. Ross filed a Chapter 7 bankruptcypetition in the United States Bankruptcy Court for the Middle Di strict of

Tennesse e. On July 31, 1990, the bankruptcy court entered
an order disc harging all

of Ms. Ro ss’s disc hargeable debts, inc luding the $2, 089.54 debt arising out

of the divis ion of the m

arital pr operty in the part

ies’ div orce. T

he
re cord contains no evidence t hat the ban

kruptcy court alsodischarge d Ms. Ross ’ s child suppor

t debt.
On January 9, 1996, Mr. LeM asters f iled a com

plaint in the

Circuit C ourt for D avidson County to enforc e portions of the Indian a judgm

ent relat ing to the child support arrearage and the

attorney ’s fee s. Ms. Ross respo nded that thi s debt had been discharged in bankruptc y and th a t she was entitled toa set-of f for the value of1 Act of April 21, 1994, ch. 987, § 2, 1994 Tenn. Pub. Acts 1007, 1009. -3- property that Mr. LeMasters had not delivered to her. She also assert ed that Mr. LeMast ers’s claim was frivolous and re quest ed $100,000 i n comp ensatory and punitivedamages. Foll owing a bench trial, the trial court entered an order on October 7, 1996, aw arding Mr. LeMaste rs $2,221. 54, repr

esenting the

$1,140 Indi ana judgm ent for child support arr

earage p lus ten per

cent inter est. Shor tly the reafter , the sheriff seized jewel

ry and cash from

Ms. Ross s ufficien

tto sat isfy Mr. L eMast ers’s judgm ent. In res pons e to Ms . Ross ’s motion to stay the sale of her jewelry , the trial courtdirected

the clerk of

the trial court to hol d the seize d jewe lry a nd cash pending the outcom

e of this a ppeal.

II.

Even though she co ncedes tha t the $1,140

debt w as originally

for child support, Ms. Ross argues that under Tennessee law the emancipation of the parties’ daughter transformed

her nondischargeable child support debt into an ordi nary, discharge able debt. This arg ument

contains tw o significa

nt flaws. First, i t reflec ts a m isreading of the Tennesse e cases, and second, it ignores t hat thedischarge ability

issue is a matter of federal, no t state, law.

The Tennessee Supreme Court has decided two case s involving the

procedures for enforcing judgments for pa st unpai d child s upport. The cour t emph asized in b oth
cases that a par

ent is not relieved fr

om lia bility for unpaid child suppor t after t he child becomes emancipated by reachi ng the age of majority. See Kuykendall v. Wheeler , 890 S.W .2d785, 786 (T enn. 1994) ; Clinard v. Clinard , App. N o. 01S01-95 02-CV00021, 199 5 WL 563858, at * 3 (Tenn. Sept. 25, 1995) (De signated N ot for Publication). The court

heldthat the only proc edures fo r collect ing money jud gment s for unpaid child

support we

re the sta tutory procedure s availabl e to collect other
m oney judgm

ents. Pr ior to July

1, 1994, t

hese proce dures included executio n , garnishm ent, and judicial liens. See Kuykendall v. Wheeler , 890 S.W .2d at 786. Afte r J uly 1, 1994, following the enactment of Tenn. Code Ann. § 36-5-101(k), 1 parties may

also collect money j udgments for past due child supportusing contem pt proceedin gs. See Clinar

d v. Clina rd, supra , 1995 WL 5638 58, at *3.-4- Neither Kuykendal lv. Wheeler nor Clinard v. Clinard

address th e nature of a debt for unpaid

child suppor

t and certainly s top short of holding that a

debt for unpaid childsupport is no longer a child suppor t debt whe n the child b ecom es em ancipate d. Both cases dea l on ly w ith the proc edures ava ilable to enforce a

judgm ent for c hild support arrearage. A ccordingly , as a m atter of statelaw, we fi nd that a de bt for unpaid child suppor

t rem ains a

child suppor

t debt even

after th e child

for whom

the support should

have been paid has been ema ncipated.

As if to com

pound her m

isinterpr etation of the Kuykendal land Clinard cases, Ms. Ross also insists that these ca ses som ehow contr

ol the disch argeabil ity in bankruptcy of her

debt for unpa id ch ild s uppo rt. Thi s argu ment ov erloo ks Co ngres s’s unrestricted an d paramou nt power u nder U. S. Const. art. I, § 8, cl. 4 to establi sh uniform bankruptcy laws thro ug hout the Uni ted State s. Any state law

or interpretationof state law that frustrates the purpose s of the federal bankruptcy law
or int erferes wi th its pu rposes is invalid

. See In re Wimmer , 121 B.R . 539, 543 (Bankr. C.D. Ill. 1990); In re Phil lips , 13 B.R. 811, 815 (Bankr. N.D . Ohio 1981). The mea ning and eff

ect of the bankruptcy

laws do not depen d on any individual stat e’s laws

. See In re Hunter , 122 B.R . 349, 355 ( Bankr. N .D. Ind. 1990). Onl y federal bankrupt cy law, not state ca se law, determines the nature and dischar

geability of a d ebt in b ank rup tcy.

One of the most ve nerable p rinciples of Am erican ba nkruptcy law is tha

t a debt or’s obligation toprovide spou sal support cannot be discharg ed. See In re Swate , 99 F.3d 1282, 1286 (5th Cir . 1996) (q uoting In re Tessler , 44 B.R. 786, 787 (Bankr. S.D. Cal. 1984)) . This princi ple is embodi ed in 11 U.S.C.A. § 523(a )(5) (199 3 & Supp. 1997) whic h provi des tha t a dischar ge does not r

elieve an individual de

btor from any de bt “to a spouse, form

er spouse, or child of

the debto r, for

alimony to, maintenancefor, or

support of s uch spouse or child, in c onnection w ith a separation agreem ent, divorce decree or other or der of a c ourt of re cord.” T hus, whil e state law may guide the federal courts in ascertaining the nature of the obligation, federal law will determ

ine whether the purported spousal or child support is dischargeable. See In re Singer , 787 F.2d 1033, 1035 (6th Cir. 1986) (Guy, J., concurr ing); In re Prager , 181 B.R. 91 7, 920 (Bankr. W.D. Tenn. 1995) (citing H.R. Rep. No. 595, 95 th Cong., 1st Sess. 364 (1977); S . Rep. No. 989, 95th Co ng., 2d S ess. 79 (1 988)). T he strong-5-

policy favoring the enforcement o f spousal and child support orders in 1 1 U.S.C.A. § 523(a)(5) overcomes the general rule that excep tions to disch arge should be construed in the deb tor’s favor. See In re Miller , 55 F.3d 1487, 1489 ( 10th Ci r. 1995); In re Mac

Donald , 194 B.R. 283, 287 (Bankr. N.D . Ga. 1996).

Federal courts ar

e not bound

by and m ust look beyond the label t

he partie s or the state cour ts attach t o a debt. See In re C hism , 169 B.R. 163 , 169 (Bankr . W.D. Tenn. 1994). However, when there is no question that an obligati on is for sup port, and is designated as such, the obligat ion is no t discharg eable in ba nkruptcy. See In
re Fitzgeral

d , 9 F.3d 5 17, 521 ( 6th Cir. 1 993); In re Prager , 181 B.R . at 920. Acco rdi ngl y, the weigh

t of author

ity is t hat a post- maj or ity chi ld support ar rearage is not discharg ea ble in ban kruptcy. See Hylek v. Hylek , 148 F.2 d 300, 302-0 3 (7th Cir. 1945) ; In re Harr

ell , 33 B.R. 989, 995 (N.D. Ga. 1983); In re Ehle rs , 189 B.R. 835, 840 (Bankr. N.D. Ala. 1995); In re Sokolsky , 18 B.R. 138, 139 (Bankr. M.D. Fla. 1982); In re Beck , No. 92 -22414-B, 1994 WL 687446, at *5 (Bankr. W.D. T enn. Dec. 6, 1994).
Reducing achild

support ar

rearage to judgm ent does not change the

nature of the underlying debt

for discha rgeabilit y purposes. See In re Swate , 99 F.3d at 12 89; In re Aver

y , 114 F.2 d 768, 769 (6 th Cir. 19 40); In re Nelson , 16 B. R. 658, 6 60 (Bankr. M.D. Tenn. 1 981). As one court poi nted out ,

The nature of

the obligat

ion upon which t

he judgm ent rests wa s not altered by the fact that the children had reache d their majority before the judgment was obtained . To relieve the father of such lia

bility because the children had reached their majority

prior to the

rendition o f the judg ment would, in

our view, run counter

to the purpo se and spirit . . . of t

he Bankrup tcy A ct. Hylek v. Hylek , 148 F.2d at 303. Dischargeability of a debt is de te rmine d by the subst anc e of the liab ility, or the na ture of the claim, instead o f its form. See In re Dennis , 25 F.3d 274, 277-78 (5th Cir. 1994).

Bec ause the recor

d contains noevidence that Ms. Ross’s $1, 140 debt to Mr . LeMasters was any

thing other than child s upport or thatthe bankrup tcy c ourt actua lly discharged this debt, Ms. Ross’ s child suppor t arrea rage wa s no t disc harged in-6-

bankruptc y. Accord ingl y, we affir m the tri al cou rt’s or der th at Mr. Le Maste rs’s Indiana judgment of unpaid child support is enforceable in Tennessee.

III.

We affirm

the judgm

ent and re mand t

he case toth e tria l court for whatever further proceedings may be r

equired . We tax the costs of this appea

l to Linda LeMasters Ross and her surety for which execution, if necessary, m ay issue.

_________________

____________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

_________________

________________ BEN H. CANTRELL, JUDGE