Gitlin Law Firm 2008 Illinois Divorce and Paternity Case and ...

to pay $8,927 to Levin for child representative fees while Mrs. Greco agreed to pay a much lesser
amount. The agreement was incorporated into an order entered by the divorce court. Note that the
order did not impose an obligation upon either party to satisfy the other party’s payment
obligation. Mr. Greco then filed a Chapter 7 bankruptcy. Attorney Levin filed an adversary
complaint to determine the non-dischargeability of his debt under §523(a)(5) of the Code. The
debtor did not appear or respond to the adversary complaint, and Levin moved for a default
judgment. Levin argued that because his services to Greco’s children were in the nature of
support, the debtor’s obligation to pay for those services must be nondischargeable. The Court,
sua sponte, questioned whether Levin’s status as a child representative under Illinois law gave rise
to a “domestic support obligation” as a matter of law.
Under §523(a)(5) of the Code, a debt for a domestic support obligation is excepted from
discharge. “Domestic support obligation” is defined under §101(14A) of the Code, which has
four elements:
(1) the debt must be owed or recoverable by a person with a particular relationship to the
debtor, i.e. spouse, former spouse, child or such child’s legal guardian, or a government
unit;
(2) the nature of the obligation must be for support or alimony;
(3) the source of the debt must be a divorce agreement, decree or court order; and
(4) the debt must not have been assigned to a nongovernmental entity, unless it is
voluntarily assigned by the spouse, former spouse or child of the debtor for the purpose of
collecting the debt.
The bankruptcy court found that Levin’s complaint satisfied all but the first element. Payment for
the services that Levin provided to the children can be characterized as “support” for the children.
Moreover, the obligation to Levin arose under a settlement agreement incorporated into a divorce
decree, and it has not been assigned. But the court held that Levin, as a child representative, did
not satisfy the payee requirement of the definition.
The court distinguished case law which had held that an award of fees to a guardian ad litem
appointed to represent the interests of the debtor’s child in a custody dispute were
nondischargeable under §523(a)(5) of the Code. The court believed the case law failed to give
proper interpretation to the “payee” element of nondischargeability, distinct from the requirement
that the obligation be in the nature of support. The child representative’s right to payment from
the debtor is not a domestic support obligation simply because it is a court-ordered payment in the
nature of support. The critical reasoning to the decision was that Levin’s claim as child
representative was not owed or recoverable by the debtor’s spouse. The Greco’s divorce order
provided for separate amounts to be paid to the child representative by each spouse, with no
obligation on either party to satisfy the other party’s payment. Therefore, Greco’s obligation pay
the child representative was neither indirectly “payable to” nor “recoverable by” Greco’s former
spouse.
The bankruptcy court rejected Levin’s argument that the court should be guided by the provision
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