* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-30641

Summary Calendar

_____________________

In The Matter Of: L. ALAN EGLESTON,

Debtor.

VICKI EGLESTON,

Appellant,

versus

L. ALAN EGLESTON,

Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Louisiana

(95-CV-411)

_________________________________________________________________

February 5, 1996

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM: *

Vicki Egleston appeals from the district court's affirmance of

the bankruptcy court's determination that all but one of the

obligations stemming from a divorce decree were not in the nature

of alimony, maintenance, or support and therefore dischargeable in

the bankruptcy of her ex-husband, Dr. Alan Egleston. Concluding

that the bankruptcy court's factual fin ding as to one obligation-2-

fro m the divorce decree, and the district court's affirmance of

that finding, were clearly erroneous, we affirm in part, reverse in

part, and remand for entry of judgment. We have jurisdiction

pursuant to 28 U.S.C. § 158(d).

I

Dr. Egleston filed a divorce action against Vicki Egleston in

1992 in the Court of Common Pleas of Westmoreland County,

Pennsylvania. On September 14, 1993, the court entered an order to

which both Dr. Egleston and Vicki Egleston consented (the

"Pennsylvania Order"). The Pennsylvania Order contains twenty-six

numbered paragraphs addressing myriad issues, including equitable

distribution of property and payment of alimony. Paragraph Nine of

the Pennsylvania Order is the onl y section that specifically

mentions alimony. It requires Dr. Egleston to pay to Vicki

Egleston $4,000 per month from October 1, 1993 to December 31,

1993. The payments resume on May 1, 1994, and continue for 128

months, for a total of 131 months. Paragraph Eight concerns Dr.

Egleston's agreement to sell his medical practice in Pennsylvania

to another medical group. It provides that $37,500 from the sale

shall be paid to Vicki Egleston at the signing of the agreement "as

equitable distribution." It also provides that the buyers shall

pay to Vicki Egleston a portion of the remaining sale price in six

consecutive monthly payments of $5,000 "as equitable distribution,"

commencing January 1, 1994. This paragraph obligates Dr. Egleston

to make such payments to Vicki Egleston in the event of a default.-3-

Vicki Egleston has not received any of the payments mentioned in

Paragraph Eight.

After moving to Louisiana, Dr. Egleston filed a Chapter 7

bankruptcy petition in March 1994. Vicki Egleston was listed as a

creditor based on the Pennsylvania Order. She filed an adversary

proceeding in bankruptcy court in June 1994, claiming that the

Pennsylvania Order should be excepted from discharge pursuant to 11

U.S.C. § 523(a)(5) as alimony, maintenance, or support. After

conducting a hearing in December 1994, at which both Eglestons

testified, the bankruptcy court entered a judgment declaring that

the 131 payments required by Paragraph Nine were alimony and were

therefore excepted from discharge. The court refused to except any

other part of the Pennsylvania Order from discharge, including the

six payments for $5,000 required by Paragraph 8. The district

court summarily affirmed the judgment of the bank ruptcy court in

June 1995.

II

Whether an obligation to a former spouse is in the nature of

alimony, maintenance, or support is a factual question subject to

a clearly err oneous standard of review. I n re Benich

, 811 F.2d

943, 946 (5th Cir. 1987); Ban kr.R. 8013. A finding of fact is

clearly erroneous "when although there is evidence to support it,

the reviewing court on the entire evidence is left with a firm and

definite conviction that a mistake has been committed." Anderson

v. City of Bessemer City, N.C.

, 470 U.S. 564, 573, 105 S.Ct. 1504,-4-

1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States

Gypsum Co.

, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 9 2 L.Ed. 746

(1948)). "When a finding of fact is premised on an improper legal

standard, or a proper one improperly applied, that finding loses

the insulation of the clearly erroneous rule." In re Niland , 825

F.2d 801, 806 (5th Cir. 1987) (quoting In re Missionary Baptist

Foundation , 818 F.2d 1135, 1142 (5th Cir. 1987)).

Section 523 of the Bankruptcy Code sets forth the exceptions

to the general rule that all debts are dischargeable through

bankruptcy. Subsection (a)(5) exempts from discharge any debt owed

to a former spouse or child for alimony, maintenance, or support.

11 U.S.C. § 523(a)(5) (1994). "Whether a particular obligation

constitutes alimony, maintenance, or support within the meaning of

this section is a matter of federal bankruptcy law, not state law."

In re Joseph

, 16 F.3d 86, 87 (5th Cir. 1994) (quoting In re Biggs

,

907 F.2d 503, 504 (5th Cir. 1990)). "Bankruptcy court must

therefore look beyond the labels which state courts--and even the

pa rties themselves--give obligations which debtors seek to have

discharged." I n re Dennis

, 25 F.3d 274 , 277-78 (5th Cir. 1994)

(citations omitted), cert. denied

,

___ U.S.

___, 115 S.Ct. 732, 130

L.Ed.2d 636 (1995).

This court has set out a non-exclusive list of factors for

bankruptcy courts to use in making the determination. "These

considerations include the parties' disparity in earning capacity,

their relative business opportunities, their physical condition,1 Although Vicki Egleston con tests the findings of the

bankruptcy court as to other portions of the Pennsylvania Order, we are convinced that they are not clearly erroneous.

-5- their educational background, their probable future financial

needs, and the benefits each party would have received had the

marriage continued." Id. at 279 (citing In re Joseph , 16 F.3d at

88).

III

At the outset of our analysis, we note that the focus of our

review is the failure to except from discharge the six monthly

payments required by Paragraph 8. 1 We emphasize the fact that but

for a one-month overlap and a $1,000 difference in amount, these

payments coincide with the five-month hiatus in alimony payments

provided by Paragraph Nine.

The bankruptcy court was not explicit in its analysis of the

nature of the payments required by the Pennsylvania Order. A

review of the hearing transcript suggests that the non-exclusive

list of factors recommended by this court guided to some extent the

bankruptcy court's determination that the payments labeled alimony

were in fact alimony.

As to the six payments required by Paragraph Eight, the

court's analysis is somewhat less clear. Initially, the court

appears to have recognized the simila rities between the payments

required by the two paragraphs.

THE COURT: And the four thousand dollars a month

from you is, or has been referred to as alimony?2 At the end of the hearing, the court declared:

The other portions of this appear t o be property in

nature. That's the only paragraph, paragraph nine, that

appears to be alimony in nature. Everything else appears

to be property in nature in that everything else has

language in it such as where we're talking about the sale

of the practice.

. . . And the ba lance of the cash

proceeds in the amount of thirty thousand dollars shall

be paid to the defendant as equitable distribution. This

document seems to imply as if there has been some sort of

equitable distribution of properties between the parties

already and this is another equitable distribution under

the agreement.

-6- [DR. EGLE STON]: Correct. But the five thousand

dollars that they would be paying her would be part of

the property settlement of the sale of the practice.

THE COURT: Common sense would not so indicate.

THE WITNESS: Well, how else are you going to get to

seventy-five thousand dollars if you've got thirty-seven

five in the beginning a nd six months at five thousand

that brings you up close to where you should be for the

sale of the practice.

THE COURT: Well that would indicate that there was

no necessity of Ms. Egleston for any support at all,

otherwise she would have gotten four thousand dollars per

month from you plus the five thousand dollars per month,

if it was property in nature that you were dividing up.

In the end, however, it ap pears that the labels used in the

Pennsylvania Order swayed the bankruptcy court's determination that

the six payments required by Paragraph Eight were not alimony. 2

The court explained the hiatus in alimony payments provided by

Paragraph Nine in the following manner:

[I]t is my understanding of that agreement, from the

testimony that I have heard, that it was the desire of

the state court judge to condemn him to pay one hundred

and thirty-one consecut ive months. But because of the

moving expenses that he was anticipating having to make

and expend, she allowed a suspension in the event that

the payments were made by the other parties on the sale

of the business.-7-

We are unconvinced by the reasoning of the bankruptcy court.

"The Bankruptcy Code requires the bankruptcy court

. . . to

determine the true nature of the debt, regardless of the

characterization placed on it by the parties' agreement at the

state court proceeding." I n re Benich

, 811 F.2d at 945. The nonexclusive list of factors suggested by the Fifth Circuit guides

this determination. I n re Dennis

, 25 F.3d at 279 (citing In re

Joseph

, 16 F.3d at 88). For the same reason that these factors led

the bankruptcy court to conclude that the three payments at the end

of 1993 and the 128 payments starting again in May 1994 were in

their nature alimony, a portion of the payments required by

Paragraph Eight coinciding with this hiatus must be a limony,

notw ithstanding the label attached to these payments by the

Pennsylvania court. As the bankruptcy court suggested during the

hearing, to find otherwise would conflict with the finding that the

other payments were a limony. In these circumstances, the reason

for the hiatus in the payments actually labeled "alimony" appears

irrelevant.

We thus conclude that the bankruptcy court's finding as to the

payments required by Paragraph Eight, and the distric t court's

affirmance of that finding, were clearly erroneous. We hold that

five of the six monthly payments required by Paragraph Eight in the

amount of $4,000 each were in lieu of the alimony required by

Paragraph Nine, and thus in their nature alimony excepted from

discharge under § 523(a)(5). These five payments should be added-8-

to the 131 payments required by Paragraph Nine for a total of 136

payments. We hold that the remaining $1,000 from each of the five

payments and the $5,000 from the sixth payment do not constitute

alimony and thus are not excepted from discharge under § 523(a)(5).

III

For the reasons we have expressed above, we AFFIRM in part,

REVERSE in part, and REMAND for entry of judgment in accordance

with this opinion.

AFFIRMED in part, REVERSED in part and

REMANDED for entry of judgment.