*District Judge of the Southern District of Texas, sitting by designation. 

1

United States Court of Appeals,

Fifth Circuit.

Nos. 96-20251, 96-20252.

Matter of Tommy E. SWATE, Debtor.

Tommy E. SWATE, Appellant,

v.

Dian Frances HARTWELL, Appellee.

Nov. 21, 1996.

Appeals from the United States District Court for the Southern District of Texas.

Before KING and HIGGINBOTHAM, Circuit Judges, and LAKE*, District Judge.

LAKE, District Judge:

Tommy E. Swate appeals from a judgment affirming the bankruptcy court's order that

lump-sumdamages awarded bya state courtfor future alimonyare not dischargeable under 11 U.S.C.

§ 523(a)(5). We Affirm.

I. Background

Swate and Dian Frances Hartwell entered into an Agreement Incident to Divorce to dissolve

their marriage on July 31, 1981. On October 7, 1981, the state court signed a final Decree of divorce

that incorporated the parties' obligations under the Agreement Incident to Divorce. The agreement

and decree required Swate to pay Hartwell $1,000 per month, terminable upon Hartwell's death and

subject to cost-of-living adjustments.

Swate filed for bankruptcy protection on March 20, 1987. Hartwell challenged the

dischargeability of Swate's obligations under the Agreement Incident to Divorce in an adversary

action filed with the bankruptcy court on July 15, 1988. Hartwell argued that the obligations were

nondischargeable as "alimony, maintenance, or support" under 11 U.S.C. § 523(a)(5). The

bankruptcy court agreed and entered a Judgment Denying Discharge of Alimony Obligation on May
2

19, 1989, with findings of fact and conclusions of law that stated in relevant part:

 FINDINGS OF FACT

 ...

h. The Agreement Incident to Divorce, Section 7, isin the nature of "alimony" asthat term is defined

under § 523 of the Bankruptcy Code and is a non-dischargeable debt of Defendant in this

bankruptcy proceeding.

i. The attorney's fees incurred by Plaintiff [Hartwell] in prosecuting her claim against Defendant

[Swate] are non-dischargeable pursuant to the applicable provisions ofthe BankruptcyCode.

 CONCLUSIONS OF LAW

 ...

e. The Agreement Incident to Divorce, Section 7 ... and the Final Decree of Divorce ... create a

non-dischargeable obligation on the part of Defendant pursuant to 11 U.S.C. § 523 as such

creates an "alimony" obligation owing by Defendant to Plaintiff.

f. The attorney'sfees and costsincurred byPlaintiffrelating to prosecution and collection of her claim

against Defendant in respect to such "alimony" obligation are non-dischargeable debts.

g. The "alimony" obligation as set forth in the Agreement Incident to Divorce (Section 7) between

Plaintiff ... and Defendant ... dated July 31, 1981, and as set forth in that Final Decree of

Divorce ... including past, present, and future "alimony" obligations and attorney's fees

relating thereto, is hereby excepted from any bankruptcy discharge otherwise granted to

Defendant in the above captioned bankruptcy proceeding and such "alimony obligation" is

declared to be non-dischargeable in Defendant's bankruptcy proceeding. (emphasis added)

The bankruptcy court also granted Hartwell relief from the stay to allow her to pursue state

claims against Swate to enforce the alimony provisions in the Agreement Incident to Divorce, and

on March 2, 1989, Hartwell filed a petition in the state court seeking to recover alimony and support

arrearages. On January 17, 1992, after the bankruptcy proceeding had been closed by the entry of

a Final Decree on November 25, 1991, Hartwell filed her First Amended Original Petition in state

court seeking damages for anticipatory breach of the alimony provisions in the Agreement Incident

to Divorce.

On February 18, 1992, the state court entered a Post Divorce Final Judgment awarding

Hartwell $572,284.14 pursuant to a jury verdict. This amount included damages for past-due child

support ($4,050), past-due alimony ($67,580.26), anticipatory breach of the alimony provisions of

the Agreement Incident to Divorce ($417,654.76), and attorney's fees ($63,159.87). Swate did not
 

1After Swate appealed the bankruptcy court's judgment to the district court, Hartwell moved

the bankruptcy court to dismiss her remaining claim under 11 U.S.C. § 727. The bankruptcy

court, however, mistakenly dismissed both the § 727 and § 523 claims. Hartwell moved to

Reform, Modify or Correct this judgment, and when the bankruptcy court entered an order

"mooting" its prior order, Swate, out of an abundance of caution, appealed from the order to

another district court. The second district court dismissed Swate's appeal because it duplicated

3

appeal the judgment.

Swate again filed for bankruptcy protection on December 9, 1993. Hartwell filed an

adversary action on March 2, 1995, objecting under 11 U.S.C. §§ 523(a)(5) and 727 to the discharge

of the Post Divorce Final Judgment. The bankruptcy court granted Hartwell's motion for summary

judgment, ruling Swate was barred by res judicata from challenging the nondischargeability of the

debt because the prior bankruptcy court judgment had determined the same obligation to be

nondischargeable under § 523(a)(5). The court concluded:

The prior bankruptcy court order finds nondischargeable past, present, and future

alimony and the attorneysfees and costsrelated to the prosecution and collection ofthe same.

The Court concludes that res judicata by virtue of the bankruptcy court's prior

nondischargeability order precludes the relitigation of the dischargeability of all sums stated

in the post divorce judgment for child support, and alimony, including future alimony,

attorneys fees related to the past, present, or future alimony obligations, and actuarial fees.

The district court affirmed the judgment ofthe bankruptcycourt, ruling that Swate was barred

by principles of res judicata and collateral estoppel from challenging the nondischargeability of the

debt because the prior bankruptcy court judgment had determined the same obligation to be

nondischargeable. The district court held that although the legal form of Swate's alimony obligation

changed from a continuing monthly duty to a lump-sum liability, the Post-Divorce Final Judgment

did not alter the substance of the obligation in both bankruptcy court proceedings:

The issue in the second bankruptcy proceeding was the dischargeability of Swate's

obligation to make payments to Hartwell under the state court's "Post-Divorce Final

Judgment," which included a lump-sum award for past, present, and future alimony. In the

first bankruptcy proceeding, the court found that Swate's obligation to make past, present,

and future paymentsto Hartwellwasin the nature of alimonyand therefore nondischargeable.

The "Post-Divorce FinalJudgment" was based on the same right to payments determined to

be alimony in the first BankruptcyCourt action. (Docket Entry No. 11, Ex. B, Jury Question

# 4) For the purposes ofres judicata, the state court judgment did not alter the substance of

the obligation at issue in both Bankruptcy Court proceedings.

Swate now appeals from the district court's judgment.1
his first appeal, which by this time had been decided adversely to him. Swate's appeals from the

judgments of the respective district courts were consolidated in this court. 

 

2Swate does not argue that the Post Divorce Final Judgment is a property settlement. 

 

3Matter of Joseph, 16 F.3d at 87 (quoting Matter of Biggs, 907 F.2d 503, 504 (5th Cir.1990)). 

4

II. Analysis

"One of the most venerable principles of American bankruptcy law is that a debtor's

obligation to provide alimony or support to a spouse or former spo use will not be affected by the

discharge order." In re Tessler, 44 B.R. 786, 787 (Bankr.S.D.Cal.1984) (citing Audubon v. Shufeldt,

181 U.S. 575, 579, 21 S.Ct. 735, 736, 45 L.Ed. 1009 (1901)). This concept is found in the

Bankruptcy Code as § 523(a)(5), which exempts from discharge any debt owed to a former spouse

or child for alimony, maintenance, or support. Matter of Joseph, 16 F.3d 86, 87 (5th Cir.1994).

Property settlements, on the other hand, are dischargeable in bankruptcy. In re Brody, 3 F.3d 35, 38

(2d Cir.1993).2 " "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,' "3and is

determined by examining the nature of the debt at the time it was created. Matter of Davidson, 947

F.2d 1294, 1296-97 (5th Cir.1991); In re Wisniewski, 109 B.R. 926, 929 (Bankr.E.D.Wis.1990);

In re Jenkins, 94 B.R. 355, 360 (Bankr.E.D.Pa.1988); In re Brown, 46 B.R. 612, 614

(Bankr.S.D.Ohio 1985). "The circumstances of the parties subsequent to the entry of the judgment

for divorce is irrelevant to that inquiry." In re Larson, 169 B.R. 945, 952 (Bankr.D.N.D.1994).

A. Res Judicata

Res judicata is appropriate if (1) the parties are identical or in privity; (2) the judgment in

the prior action wasrendered by a court of competent jurisdiction; (3) the prior action was concluded

to a final judgment on the merits; and (4) the same claim or cause of action was involved in both

suits. United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir.1994). If these conditions are satisfied

res judicata prohibits either party from raising any claim or defense in the later action that was or

could have been raised in support of or in opposition to the cause of action asserted in the prior
5

action. Id.

Swate argues that res judicata does not apply because the same claim was not involved in

both bankruptcy proceedings. He contends that he was prevented in the second bankruptcy

proceeding from raising two defenses that could not have been asserted in the first bankruptcy

proceeding because they only arose after the Post Divorce FinalJudgment was entered—(1) that the

damages awarded for anticipatory breach of the alimony provisions were unreasonable, and (2) that

the Post Divorce Final Judgment changed his obligation from a nondischargeable, unmatured,

monthly alimony payment to a dischargeable lump-sum breach of contract award.

1. The reasonableness of the damage award

Swate argues that he was prevented from raising an affirmative defense regarding the

"unreasonableness" of the lump-sum alimony award. He alleges that the alimony awarded was

excessive because the nonmodifiable $3,475 in interest that accrues monthly on the $417,654.76

judgment for future alimony is three times larger than the modifiable, $1,400 monthly alimony

payments due under the Agreement Incident to Divorce after cost-of-living adjustments. We are not

persuaded by this argument. The reasonableness of an award for alimony is an issue for the state

court. Because Swate could have challenged the unreasonableness of the lump-sum alimony award

in state court, he was not denied this defense.

Nor are we persuaded that it would have been appropriate for the bankruptcy court to review

the reasonableness of the lump-sum alimony award. Although the Sixth Circuit allows bankruptcy

courts to review state law determinations of the reasonableness of support and alimony awards, In

re Calhoun, 715 F.2d 1103 (6th Cir.1983), at least five other courts of appeal and many bankruptcy

and district courtstake a contrary view. See In re Gianakas, 917 F.2d 759 (3d Cir.1990); Sylvester

v. Sylvester, 865 F.2d 1164 (10th Cir.1989); Forsdick v. Turgeon, 812 F.2d 801 (2d Cir.1987);

Draper v. Draper, 790 F.2d 52 (8th Cir.1986); In re Harrell, 754 F.2d 902 (11th Cir.1985); Fraser

v. Fraser, 196 B.R. 371 (E.D.Tex.1996); In re Chedrick, 98 B.R. 731 (W.D.Pa.1989); In re Smith,

97 B.R. 326 (Bankr.N.D.Tex.1989). We find persuasive the Second Circuit's explanation of the
6

majority rationale:

An inquiry of the sort urged by the husband would put federal courts in the position of

modifying the matrimonial decrees of state courts, thus interfering with the delicate state

systemsfor dealing with the dissolution ofmarriages and the difficult and complex resultsthat

flow therefrom.... State-crafted family law mechanisms should not be disturbed by federal

court intervention unless there is an unmistakable mandate from congress to do so in order

to achieve a valid federal objective. We find no such mandate here. To the contrary,

congress has clearly required the bankruptcy court to protect the rights of a former spouse

receiving ali-mony at the expense of a debtor seeking a fresh start. The husband's argument

would turn this legislative intent on its head by having the bankruptcy court entertain

arguments about, and deciding issues of dischargeability on the basis of, a continuing need

for support instead of protecting the award previously found by the state courts to be

appropriate.

Forsdick v. Turgeon, 812 F.2d at 803-04 (citations omitted). We conclude that the state court, not

the bankruptcy court, is the proper forum in which to consider the "excessiveness" of the alimony

obligations imposed by the final decree. In re Smith, 97 B.R. at 330.

Swate attempts to distinguish these cases, arguing that they involved fact patterns where the

parties could still seek modifica-tion of the alimony award in the state court. Swate argues that he

is now precluded fromseeking a modification in state court because the Post Divorce FinalJudgment

extinguished the Agreement Incident to Divorce. Hartwell responds that Swate had the opportunity

to present evidence as to the amount the state court should award in "future" alimony and the

opportunity to appeal the Post Divorce Final Judgment on grounds that it was not supported by the

evidence. Swate replies that an appeal of the reasonableness of the award would have been futile

because the award was not excessive from the standpoint of a jury verdict in a breach of contract

action in state court . According to Swate the bankruptcy court is the proper forum in which to

litigate the reasonableness of the alimony award.

Swate's argument fails for the reasons that a similar argument failed in Forsdick v. Turgeon:

[T]he husband suggests that the federal court should look to changed conditions

where modification of the award at issue would be unavailable in state court, as he argues is

the case here. It is true that some courts that have declined to examine changed

circumstances have pointed to the availability of a state modification procedure as one factor

in their decision. See, e.g., Harrell, 754 F.2d at 907 n. 8. None, however, has found that

particular consideration to be decisive, and we question even its relevance, because the

decision not to make modification available to the obligated spouse reflects a state-made

policy decision in the area of domestic relations, an area into which we are loath to intrude.

Cf. Simms v. Simms, 175 U.S. 162, 167, 20 S.Ct. 58, 60, 44 L.Ed. 115 (1899)("[T]he whole
 

4The Supreme Court rejected a similar argument under an earlier version of the bankruptcy

code in Wetmore v. Markoe, 196 U.S. at 72-74, 75-77, 25 S.Ct. at 174, 175-76. 

7

subject of the domestic relations of husband and wife ... belongs to the laws of the state.").

812 F.2d at 804.4

2. The proper characterization of the damage award

 Swate argues that the character of the alimony award was changed to a dischargeable debt

because it wasreduced to a specific, non-modifiable amount no longer terminable on Hartwell's death

and because it includes non-alimony "incidental and conse-quential damages" for anticipatory breach

of contract. The first bankruptcy court found that all past, present, and future alimony in the

Agreement Incident to Divorce was in the nature of nondischargeable alimony under federal

bankruptcy law. The only event that transpired between the first and second bankruptcy proceedings

wasthe Post Divorce FinalJudgment, which reduced the past, present, and future alimonyobligations

in the Agreement Incident to Divorce to a single lump-sumaward. The Post Divorce Final Judgment

was based on the same right to payments determined to be alimonyin the first bankruptcyproceeding.

The dischargeability of a debt is determined by the "substance" of the liability rather than its form.

In re Dennis, 25 F.3d 274, 277-79 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 732, 130

L.Ed.2d 636 (1995). The nature of a claim underlying the debt determines its dischargeability. See

In re Wright, 584 F.2d 83, 84 (5th Cir.1978). Because the nature of Swate's obligations created by

the Agreement Incident to Divorce and later merged into the Post Divorce Final Judgment was

determined in the first bankruptcy proceeding, Swate is barred from relitigating the issue in the

second bankruptcy proceeding.

The parties cite only one case that has addressed t he issue of dischargeability of future

alimony reduced to a judgment. In In re Alexander, 92 B.R. 667, 669-70 (Bankr.N.D.Tex.1988),

a husband and wife signed an "Agreement Incident to Divorce" providing for contractual alimony

payments of $1,000 a month for twelve months beginning on December 15, 1985. After the husband

failed to make the payments for February, March, April, and May of 1986, the wife filed suit for
8

breach of contract in May of 1986. A state court rendered summary judgment in favor of the wife

for $10,630.46, including $4,000 in alimony arrearage, $6,000 in future alimony payments due, and

$630.46 in attorney'sfees and costs. The husband later filed for bankruptcy, and the wife argued that

the debt under the alimony agreement was nondischargeable. The husband responded that once the

debt was reduced to final judgment it lost its character as alimony and became a debt dischargeable

in bankruptcy. The bankruptcy court concluded that the debt was in the nature of nondischargeable

alimony. The court rejected the husband's argument, ruling that "[m]erger into a subsequent

judgment does not cause a judgment for alimony to lose its nondischargeable character. The

subsequent judgment remains unaffected by a discharge so long as the original decree for alimony

remains in full force and effect." Id.

Swate argues that In re Alexander is distinguishable because the Agreement Incident to

Divorce here is no longer "in full force and effect," having merged into the Post Divorce Final

Judgment. Hartwell can no longer sue to enforce alimony under the Agreement Incident to Divorce,

and Swate can no longer seek modification whenever changed circumstances might occur. Because

the underlying decree for alimony was extinguished, Swate arguesthat the debt is now dischargeable

under the "inverse rationale" of In re Alexander. It is unclear, however, how the agreement incident

to divorce could have remained in full force and effect in In re Alexander since the debt, including

all future alimony obligations, had been reduced to a final judgment. Furthermore, althougon cases

cited in 3 Collier On Bankruptcy ¶ 523.15, at 523-101, in support of the proposition that an original

decree for alimony must remain "in full force and effect" for an alimony award to remain

nondischargeable, none of the cited cases discussed that proposition. See Ross v. Keith, 238 A.D.

640, 265 N.Y.S. 246 (1933); Matter of Avery, 114 F.2d 768 (6th Cir.1940); Application of Ritchey,

261 A.D. 872, 24 N.Y.S.2d 816 (1941), aff'd, 287 N.Y. 784, 40 N.E.2d 648 (1942).

Citing In re Chapman, 20 B.R. 810, 814 (Bankr.E.D.Va.1982), Swate also argues that the

entire award is no longer alimony but is in the nature of a compromise dischargeable under federal

bankruptcy law. He contends that because "the entire award represents unknown additional,
9

non-alimony damages and the liquidation of disputed variables (CPI rate, discount rate, life

expectancy) into a finite sum ... the award isin the nature of a compromise ... initiated by [Hartwell],

and the new debt became dis-chargeable."

In In re Chapman the husband and wife entered into two separation agreements before

obtaining their divorce. In the first agreement they provided for child support and alimony. They

later entered into a second agreement in which they settled a dispute about arrearage for child and

spousalsupport payments, agreeing that the husband owed the wife $3,000, and the wife relinquished

all claims for future alimony. When the husband filed for bankruptcy the wife challenged the

dischargeability ofthe $3,000 under 11 U.S.C. § 523(a)(5). Concluding that "[a]limony and past due

support payments for children constitute a debt of a husband to his former wife which may be

compromised or settled," id. at 814, the bankruptcy court ruled that the wife "exercised her right to

settle her claims against [the husband] by private agreement and thereby waived all of her claims for

alimony." Id. at 813. Chapman is distinguishable, however, because Hartwell did not settle her

claims against Swate by voluntary compromise B. Collateral Estoppel

 Collateral estoppel is appropriate if (1) the issue at stake is identical to the one involved in

the prior action, (2) the issue was actually litigated, and (3) the issue was necessary to support

judgment in the prior action. RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1290 (5th Cir.1995);

Matter of Davis, 3 F.3d 113, 114 (5th Cir.1993). "Collateral estoppel does not preclude litigation

of an issue unless both the facts and the legal standard used to assess them are the same in both

proceedings." Copeland v. Merrill Lynch & Co., Inc., 47 F.3d 1415, 1422 (5th Cir.1995).

Swate arguesthat the district court erroneouslygranted judgment based oncollateralestoppel

because (1) the factual issue was different in the second bankruptcy, (2) special circumstances exist

which make collateral estoppelunfair, and (3) the policies underlying federalbankruptcy law required

that the second bankruptcy court balance the nondischargeability of alimony with his need for a fresh

start.

Swate first argues that the dischargeability of the jury's award of $38,000 in non-alimony
10

"incidental and consequential" damages for anticipatory breach of contract was not litigated in the

first bankruptcy proceeding. The first bankruptcy proceeding, Swate argues, involved the

determinationwhether the debt was alimony, while the second bankruptcyproceeding also addressed

the dischargeability of additional breach of contract damages that are included in the Post Divorce

Final Judgment. We are not persuaded by this argument. Swate is not clear about what such

"incidental and consequential damages" might include, and we are not prepared to indulge in his

speculation since the jury question that resulted in the $417,654.76 award specifically limited the

jury's consideration to damages for "anticipatory breach of the alimony provisions of the agreement

incident to divorce."

Reducing alimony obligationsto a judgment does not change the substance ofthe liability for

pu.g., Wetmore v. Markoe, 196 U.S. 68, 72, 25 S.Ct. 172, 174, 49 L.Ed. 390 (1904)("The mere fact

that a judgment has been rendered does not prevent the court fromlooking into the proceedings with

a view of determining the nature ofthe liabilitywhich has been reduced to judgment."); In re Dennis,

25 F.3d 274, 277-79 (5th Cir.1994) (holding that a bankruptcy court must "look beyond the labels"

state law gives to an obligation to determine its discharge-ability); In re Larson, 169 B.R. at 953

("[T]he fact that arrearages under a support order are reduced to a money judgment does not alter

the nature of the debt from a non-dischargeable support obligation to a dischargeable debt since the

underlying character of the liability remains unchanged.") (quotation omitted). The first bankruptcy

court looked behind the Agreement Incident to Divorce and determined the nature of the obligations

set forth there to be past, present, and future alimony. When the second bankruptcy court inquired

into the nature of the debt to determine its dischargeability it looked behind the Post Divorce Final

Judgment to determine whether the underlying obligation wasin the nature of alimony, maintenance,

or support when it was made. Because the final judgment merely reduced to a lump-sum the

nondischargeable alimony obligations ofthe earlier Agreement Incident to Divorce, the issuesin both

bankruptcy proceedings were the same and Swate is collaterally estopped from relitigating the issue.

Swate next arguesthat special circumstances make collateral estoppel inappropriate because
11

the alimony award is unreasonably excessive. Although both parties cite United States v. Shanbaum,

10 F.3d 305, 311 (5th Cir.1994), which recognized a requirement that there be no "special

circumstances" that would render issue preclusion inappropriate or unfair, that requirement does not

apply in this case. As the court observed in Pentecost,

[a]lthough some recent decisionslist the fairnessrequirement as a generalrequirement for the

application of issue preclusion, the requirement originated as a limitation on offensive

collateral estoppel. See Shanbaum, 10 F.3d at 311 (citing Universal Am. Barge [v. J-Chem,

Inc.], 946 F.2d [1131] at 1136 [(5thCir.1991)](citing Parklane Hosiery [v. Shore], 439 U.S.

[322] at 326-32, 99 S.Ct. [645] at 649 [58 L.Ed.2d 552] (1979)(delineating requirementsfor

offensive collateral estoppel))). Offensive collateral estoppel arises when a plaintiff seeks to

estop a defendant from relitigating issues that the defendant previously litigated and lost

against another plaintiff. Parklane Hosiery, 439 U.S. at 329, 99 S.Ct. at 650. This case

involves tradi-tional, or mutual estoppel because the relevant partiesin the [first proceeding]

were the same as the parties in the [second proceeding]. See id. at 326-27, 99 S.Ct. at 649

(explaining mutuality requirement for traditional collateral estoppel).

44 F.3d at 1290-91 n. 12. Because Swate and Hartwell were partiesto both bankruptcy proceedings,

this case involves mutual estoppel and an inquiry into special circumstances is unnecessary for our

collateral estoppel analysis. Furthermore, as we concluded in our res judicata analysis, the

reasonableness of an alimony award is an issue for the state court, not the bankruptcy court.

Finally, Swate arguesthat collateralestoppelis unavailable because different policies underlay

the bankruptcycourt'sinquiriesin the two proceedings. Swate argues that during the first bankruptcy

the policy consideration was whether alimony support would be continued for Hartwell. During the

second bankruptcy, however, two competing policy considerations were at issue: spousal support

and getting a fresh start in bankruptcy. According to Swate, this balancing approach was required

because an "excessive" alimony obligation is at odds with the goal of allowing the bankrupt a fresh

start. Swate contends that the bankruptcy court improperly failed to balance these competing

policies. We are not persuaded by this argument because Congress has already resolved the policy

balancing in favor of the spouse receiving alimony by creating the exception to the general rule of

discharge. See Wetmore, 196 U.S. at 77, 25 S.Ct. at 176; Forsdick, 812 F.2d at 803-04; In re

Nelson, 20 B.R. 1008, 1011 (M.D.Tenn.1982).

III. Conclusion
12

Because we conclude that the district court correctly rendered judgment against Swate on res

judicata and collateral estoppel grounds, we AFFIRM.