1 United States Court of Appeals,

Fifth Circuit.

No. 96-10522

Summary Calendar.

In the Matter of Scott Wesley HUDSON, Debtor.

Scott Wesley HUDSON, Appellant,

v.

RAGGIO & RAGGIO, INC., Appellee.

March 19, 1997.

Appeal f rom the United States District Court for the Northern

District of Texas.

Before JONES, DeMOSS and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Ap pellant Scott Wesley Hudson ("Hudson") appeals an order

declaring that attorney's fees awarded directly to an attorney in

a Texas state cour t proceeding regarding Hudson's financial

responsibilities to his child are excepted from discharge in

Bankruptcy pursuant to 11 U.S.C. § 523(a)(5). We affirm.

FACTS AND PROCEEDINGS BELOW

The bankruptcy court granted Appellee, Raggio & Raggio, Inc.'s

("Raggio") motion for summary judgment, declaring that fees awarded

directly to the Raggio law firm for representation of Hudson's

child's mother in a state court paternity proceeding are excepted

from discharge pursuant to 11 U.S.C. § 523(a)(5). The district

court affirmed the bankruptcy court.

The child's mot her engaged Raggio to pursue a paternity and

sup port suit in Texas state court. After extended pre-trial2

proceedings and a thirteen-day jury trial, the state court entered

a final decree finding that Hudson was the father of the child and

o rdering him to pay certain amounts toward her support. It also

included a judgment against Hudson for $100,000 of attorney's fees,

payable directly to Raggio. The decree specifically found the fees

to be "reasonable and necessary to protect and defend the rights of

the child and to provide for the support of the child, and further

attributable to the fraud and the intentional (or malicious)

conduct of Scott Wesley Hudson toward the child."

STANDARD OF REVIEW

We review the grant of summary judgment de novo, applying the

same criteria as the bankruptcy court. S ee Waggoner v. Garland,

987 F.2d 1160, 1163 (5th Cir.1993). Whether a particular debt is

a support obligation, excepted from dischar ge under 11 U.S.C. §

523(a)(5) is a question of federal bankruptcy law, not state law.

Hill v. Snider (In re Snider ), 62 B.R. 382, 384

(Bankr.S.D.Tex.1986). Plaintiff Raggio has the burden of proving

by a preponderance of the evidence that this debt is

non-dischargeable. I n re Bradford, 22 B.R. 899

(Bankr.W.D.Okla.1982). Intertwined with this burden is the basic

principle of bankruptcy that exceptions to discharge must be

strictly construed against a creditor and lib erally construed in

favor of a debtor so that the debtor may be afforded a fresh start.

Murphy & Robinson Inv. Co. v. Cross (In re Cross), 66 6 F.2d 873,

880 (5th Cir.1982).

IS THE JUDGMENT FOR ATTORNEY'S FEES DISCHARGEABLE?3

Hudson posits his position as a straightforward application

of the plain meaning rule: the court must interpret an unambiguous

statute according to its ordinary and contemporary common meaning.

United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240-41,

109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). Hudson contends that

the plain language of § 523(a)(5) precludes s ummary judgment for

Raggio. In pertinent part, § 523(a)(5) provides:

(a) A discharge under

... 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 spouse

or child, i n connection with a separation agreement,

divorce decree or other order of a court of record, ...

but not to the extent that—

(A) such a debt is assigned to another entity....

Hudson argues that the plain language of § 523(a)(5)(A) does

not include the judgment in question because Raggio is not the

spouse, former spouse or child of the debtor. Our precedent

precludes this argument. A court ordered obligation to pay

attorney fees charged by an attorney that represents a child's

parent in child support litigat ion against the debtor is

non-dischargeable. D vorak v. Carlson (In re Dvorak), 986 F.2d 940,

941 (5th Cir.1993). Because the ultimate purpose of such a

proceeding is to provide support for the child, the attorney fees

incurred inure to her benefit and support, and therefore fall under

the exception to dischargeability set out in § 523(a)(5). S ee id.

Hudson further contends that because the fees are payable directly

to Raggio, rather than to the chi ld, the debt is "assigned to

another entity" and is therefore dischargeable under subsection4

(A). We disagree with Hudson's characterization of the order as an

"assignment." Rather, Raggio supplied a necessary service for the

child and Hudson is responsible for paying that fee as part of his

support obligation. See In re Williams, 703 F.2d 1055, 1057 (8th

Cir.1983)("Undertakings b y one spouse to pay the other's debts,

including a debt to a lawyer for fees, can be "support' for

bankruptcy purpos es."); I n re Gwinn, 20 B.R. 233, 234 (9th Cir.

BAP 1982)("A claim for attorney's fees awarded to the debtor's

wife's attorney in a divorce action is non-dischargeable ... even

though the debt was p ayable directly to the attorney."); I n re

Spong, 661 F.2d 6, 10 (2nd Cir.1981). This is no different from an

obligation to pay medical bills incurred by a child directly to the

care provider.

WERE FEES FOR SOMETHING OTHER THAN SUPPORT?

The above discussion assumes that Rag gio's services were

correctly characterized by the bankruptcy court as nec essary to

provide support for the child. On appeal, Raggio argues that the

fees were incurred at least partially for attorney's services other

than establishing Hudson's child support obligation. He relies on

a statement in the State Court Judgment that:

"All fees awarded in this judgment are and were reasonable and

necessary to protect and defend the rights of the child and to

provide for the support of the child, and further attributable

to the fraud and the intentional (or malicious) conduct of

Scott Wesley Hudson toward the child."

Hudson contends that a genuine issue of material fact existed

concerning what portion of the attorneys fees was attributable to

t he support obligation and which portion was attributable to the5

fraud arising from the terminatio n of a Hudson Family Trust.

Hudson failed to raise this argument before the bankruptcy court or

the district court. Issues raised for the first time on appeal are

reviewed only for plain error. M cCann v. Texas City Refining,

Inc., 984 F.2d 667, 673 (5th Cir.1993). This court may correct a

plain error only if it seriously affected the "fairness, integrity,

or public reputation" of the judicial proceedings. United States

v. Calverley, 37 F.3d 160, 164 (5th Cir.1994)(en ban c), c ert.

denied,

--- U.S. ----, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995).

Hudson's argument inspires no such concerns. In addition to the

support obligations in question, the Bankruptcy Code excepts from

discharge various debts involving fraud, § 523(a)(2)( A), and

"willful and malicious injury by the debtor to another entity or to

the property of another entity." § 523(a)(6). The impact of these

sections was not briefed or discussed by the parties in this court

or below. Hudson cannot prevail on this issue, given the state of

the record before this Court. He has not established either plain

error or that the alleged err or seriously affected the fairness,

integrity or public reputation of these proceedings.

COLLATERAL ESTOPPEL

Hudson argues that if the child's mother had the financial

ability to pursue the state court litigation, then the attorney's

fees award was not necessary to enable her to pursue child support;

ergo, the fees are not in the nature of support and are

discharge able, citing I n re Schiltz, 97 B.R. 671

(Bankr.N.D.Ga.1986). He goes on to argue that the bankruptcy6

court's finding that the state co urt decision had collateral

estoppel effect was error because the state court did not

specifically address whether the child's mother had the financial

ability to pursue state court lit igation without an award of

attorneys fees. Although never before raised and rejected in Fifth

Circuit jurisprudence, this argument is inconsistent with Dvorak,

where we held attorney's fees related to establishment of support

obligations non-dischargeable without reference to the financial

need of the support obligee at the beginning of the litigation.

See Dvorak, 986 F.2d at 941. We therefore decline Hudson's

invitation to require proof of financial ability in § 523(a)(5)

analysis.

CONCLUSION

For the foregoing reasons, we AFFIRM the district co urt's

order affirming the grant of summary judgment for Raggio.

AFFIRMED.