1 United States Court of Appeals,

Fifth Circuit.

No. 93-2695

Summary Calendar.

In the Matter of Philmore J. JOSEPH, Debtor.

Philmore J. JOSEPH, Appellant,

v.

J. HUEY O'TOOLE, P.C., Appellee.

March 14, 1994.

Appeal f rom the United States District Court for the Southern

District of Texas.

Before POLITZ, Chief Judge, JONES and EMILIO M. GARZA, Circuit

Judges.

POLITZ, Chief Judge:

Philmore J. Joseph appeals a judgment which declares that his

obligation to pay attorney's fees incurred by his former wife in

divorce proceedings is nondischargeable under section 523(a)(5) of

the Bankruptcy Code. Finding no error, we affirm.

Background

Retained in 19 84, attorney J. Huey O'Toole represented Jean

Joseph in divorce proceedings filed in Harris County, Texas against

her husba nd, Dr. Philmore J. Joseph. Throughout the proceeding,

O'Toole expended significant time and effort obtaining and

enforcing a temporary support award. Mrs. Joseph, in poor health

and possessing only one year of college education, made less than

$10,000 per year painting houses. Prior to the divorce Dr. Joseph

had supported his family very comfortably on his $100,000 per year1 11 U.S.C. § 523(a)(5).

2

salary.

In 1985 a divorce decree was rendered which ordered Dr. Joseph

to pay his former wife $3,000 a month. He also was directed to pay

all community debts and taxes. Mrs. Joseph terminated O'Toole's

services; Dr. Joseph appealed and the divorce decree was reversed

and the matter was remanded. O'Toole then intervened in the

proceeding, seeking a joint and several judgment against his former

client and Dr. Joseph for attorney's fees. At a hearing held in

1988 the court approved a divorce agreement which was very similar

to the 1985 provisions. Because the agreement did not address the

issue of O'Toole's fees, however, the court rendered a judgment

against Dr. and Mrs. Joseph for same. On appeal this judgment was

upheld.

Dr. Joseph filed a voluntary petition for bankruptcy under

Chapter 7 of the Bankruptcy Code. O'Toole sought a declaration of

nondischargeability under section 523(a)(5) of the Bankruptcy Code.

In a thorough and well-reasoned opinion, the bankruptcy court found

and held that the attorney's fee judgment formed part of an overall

economic arrangement to provide Mrs. Joseph with needed support and

therefore deemed it nondischargeable. The district court affirmed.

Dr. Joseph timely appealed.

Analysis

S ection 523(a)(5) exempts from discharge any debt owed to a

forme r spouse or child for alimony, maintenance, or support. 1

"Whether a particular obligation constitutes alimony, maintenance,2 Matter of Biggs, 907 F.2d 503, 504 (5th Cir.1990).

3 In re Nunnally, 506 F.2d 1024, 1027 (5th Cir.1975); see also Biggs; Matter of Benich, 811 F.2d 943 (5th Cir.1987).

4 Biggs; Benich; Nunnally.

5 Nunnally; In re Meadows, 75 B.R. 695 (Bankr.N.D.Tex.1987);

In re Bell, 61 B.R. 171 (Bankr.S.D.Tex.1986); In re Teter, 14

B.R. 434 (Bankr.N.D.Tex.1981).

3 or support within the meaning of this section is a matter of

f ederal bankruptcy law, not state law." 2 This premise proves

particularly important in states such as Texas where no permanent

alimony exists. In Texas, "support in the future can play a

significant role in the divorce court's property division and ...

what may appear to be a mere division of assets may in fact ...

contain a substantial element of ali mony-substitute, support or

maintenance, however termed." 3 Thus, we must place substance over

form to determine the true nature and purpose of the award,

regardless of the label used. 4

At the core of Dr. Joseph's appeal lies the assumption that

only those attorney's fees direc tly attributable to an award of

suppor t should escape discharge in bankruptcy. This reflects a

misapprehensi on of the law. An attorney's fee award granted

pursuant to a divorce decree does not elude discharge because it

tangentially relates to an award of support and maintenance;

rather, the attorney's fee award is deemed nondischargeable if the

award itself reflects a balancing of the parties' financial needs. 5

Considerations such as the dispar ity in earning power of the

parties, their relative business opportunities, the physical6 Benich; Nunnally.

7 Nunnally, 506 F.2d at 1027.

8 See also In re Meadows, 75 B.R. at 699 ("an obligation to

pay attorney's fees is so intertwined with the support obligation

as to be in the nature of alimony or support and excepted from

discharge"); In re Bell, 61 B.R. at 177-78 (same); In re Teter,

14 B.R. at 437 ("attorney's award is non-dischargeable [sic] if

[it is] ... a [sic] indistinguishable part of the support

award").

4 condition of the parties, their probable future need for support,

the educational background of the parties, and the benefits they

would h ave received had the marriage continued, inform this

inquiry, 6 as "[t]he attorney's fee is but a factor to be considered

... in making an equitable division of the estate...." 7

Applying these considerations to Dr. Joseph's obligation to

pay his former wife's attorney's fees, the bankruptcy court found

that the debt was in the nature of alimony, maintenance, and

support. 8 The district court affirmed. We do likewise.

AFFIRMED.