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UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ALASKA



In re: Case No. A88-00581)
)
LESLIE MARK WHITFIELD,)
)
Debtor.)
______________________________________)
LESLIE MARK WHITFIELD,) Adversary No. A88-00581-001
)Chapter 7
Plaintiff,)
)
v.)
ANN GABLER and THE)
MUNICIPALITY OF ANCHORAGE,)
)
Defendants.)
______________________________________)

MEMORANDUM DECISION

        This dischargeability action was initiated by debtor/plaintiff Leslie Mark Whitfield (Whitfield) against his former spouse Ann Gabler (Gabler) and employer, the Municipality of Anchorage (MOA). Gabler has cross claimed against the MOA. It was tried on April 8, 1991. A post trial brief was submitted by the MOA and additional exhibits have been submitted by Gabler. The case is now ready for decision. The court finds that Whitfield's property settlement obligations to Gabler are dischargeable as a personal liability. To the extent that Gabler holds any security, she may exercise her rights to such security. Gabler has no claim against the MOA.

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I.    Facts

        Whitfield and Gabler married in 1981. They were both employed by the MOA as paramedics. Each earned $66,000.00 annually. They had one child in the course of their marriage. They divorced in 1987. After a trial, extensive findings and conclusions were entered by state court Judge Peter A. Michalski on April 13, 1987. Pursuant to those findings and conclusions, Whitfield was ordered to pay child support of $700.00 per month to Gabler and property settlement of $44,750.00. The property settlement was based on a $3,500.00 difference in accrued leave time, $2,000.00 for other personal property received by Whitfield, and $39,250.00 representing an award for the difference in equity values of real property received by Whitfield versus those received by Gabler.

        Whitfield appealed to the Alaska Supreme Court. On September 23, 1987 he signed a supersedeas bond and gave lots 8 and 9, Block 1 of Akrose Estates in Wasilla as security. The Alaska Supreme Court issued an order in regard to the bond which stated in part:

1.    The motion for an Order to fix a supersedeas bond is granted. The appellant may file a personal understanding [sic] secured by deeds of truSton the properties listed in paragraph 11 (h) of the conclusions of law, [Lots 8 & 9, Block I of Akrose Estates], and he shall Dot encumber or dispose of any other assets. The obligation to pay child support shall not be stayed . . . . (emphasis added)
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Order dated September 14, 1987; Whitfield v. Gabler, Alaska Supreme Court Case No. S-2238. A copy of this order was sent to the MOA on September 17, 1987 by Gabler's attorney.

        Whitfield filed bankruptcy on June 10, 1988. He defaulted on the underlying trust indenture secured by Lot 8 of Akrose Estates and lost whatever equity he had in the home prior to the bankruptcy. Lot 9, an unimproved lot of Akrose Estates, remains in the name of both Whitfield and Gabler. Whitfield retired fromthe MOA in 1990 and began receiving his retirement benefits and deferred compensation soon after the initiation of the complaint in this actionin July of 1990. He also cashed out his accrued leave upon retirement.

        Gabler has alleged, in various pro se pleadings, that the debt owed by Whitfield to her is nondischargeable as support and that the MOA negligently and unlawfully released retirement funds, deferred compensation and accrued leave to Whitfield.

II.    Support

        11 U.S.C. § 523(a) (5) excepts support obligations from discharge. What constitutes support obligations is determined by federal and not state law. Federal courts look to the substance of the agreement or decree to determine the-nature of the obligation. Shaver v. Shaver, 736 F.2d 1314 (gth Cir. 1984); In re Combs, 101 B.R. 609 (9th Cir. BAP 1989); In re Palmatier, 1A.B.R. 155 (Bankr. D. Alaska 1990).

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        This case is not difficult to determine on the support issue. The unequivocal basis for the state court's award of $44,750.00 to Gabler was property settlement. The state court properly looked to the disposition of marital assets and determined that Whitfield should pay $44,750.00 to Gablet primarily for the equity in real property which he received. The court also gave Gabler $3,500.00 for accrued leave time differences and $2,000.00 for other personal property Whitfield retained. Each of the parties had substantial incomes, deferred compensation Plans, leave time and pension benefits. Given the high income each party received and the large amount of child support awarded Gabler it is inconceivable that the payment of the sum of $44,750.00 was anything other than property settlement. The district court ordered Whitfield to liquidate leave time and pay Gablet property settlement money in a specific time frame. This requirement did not in any way change the character of the obligation, however, which was clearly property settlement.

        Gabler, however, is not totally remediless. To the extent that Gabler has a consensual lien securing her property settlement rights in Lot 9, Block I of Akrose Estates, her claim remains enforceable. A discharge under 11 U.S.C. § 524 discharges Whitfield from personal liabilities. It does not discharge secured claims. To the extent that the property settlement obligations are secured by the trust indenture through the supersedeas bond, they remain enforceable by Gabler. Moreover, such consensual lien may   TOP      1 ABR 500  not be invalidated under 11 U.S.C. § 522(f). In re Arnesen, case no. A89-00983-HAR; In re McCormmach, 111 B.R. 330 (Bankr. D.Or. 1990).

        Gabler has mistakenly relied upon In re Sanderfoot (Farrey v. Sanderfoot), 899 F.2d 598 (7th Cir. 1990); cert, qranted, 111 S. Ct. 507 (1990), now pending before the Supreme Court, for her nondischargeability arguments. Sanderfoot is a lien invalidation case under 11 U.S.C. § 522(f). It does not involve the issue of support versus property settlement. It does not involve a consensual lien issued in conjunction with a supersedeas bond. Sanderfoot is not determinative of this case. In fact, counsel for Whitfield has conceded that to the extent Gabler is secured by the lot, the secured property settlement claim is nondischargeable and not subject to lien invalidation.

III.    MOA

        The defendant Gabler's cross claim against the MOA is meritless for a number of reasons. The first reason is quite obvious. The MOA was never a party to the divorce action, was never served with a summons and complaint and was never given notice and a hearing regarding the leave time, deferred compensation and retirement issues. The Alaska Supreme Court had no jurisdiction over the MOA at the time the September 14, 1987 order was issued. Secondly, Whitfield's retirement plan contained an anti-alienation provision which only allowed assignments of   TOP      1 ABR 501  benefits under qualified domestic relations orders. The order dated September 14, 1987 was not a qualified domestic relations order. Thirdly, the deferred compensation plan had an anti-alienation provision which did not allow an assignment of benefits. The order was not an assignment of benefits. Even if it was an assignment, it was unenforceable. Gabler has failed to state a claim against the MOA.

IV.    Conclusion and Order

        The basis of the state court award of $44,750.00 was the supposed equity Whitfield possessed in a home located on Lot 8. Whitfield lost the home and went bankrupt. The property settlement obligations were not support. Gablet's claims against the MOA have no merit.

        Therefore, IT IS HEREBY ORDERED:

        1.    Thedebt owed Leslie Mark Whitfield to Ann Gabler in the sum of $44,750.00 as set forth in the findings of fact and conclusions of law entered by Judge Michalski on April 13, 1987 is discharged as a personal liability of Whitfield;

        2.    The debt of $44,750.00 is enforceable, however, to the extent it is secured by Lot 9, Block 1 of Akrose Estates in Wasilla;

        3.    The Municipality of Anchorage correctly disbursed retirement benefits, deferred compensation and accrued leave time to Whitfield;

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        4.    Leslie Mark Whitfield, Ann Gabler, and The Municipality of Anchorage shall each pay their own costs and attorney's fees; and

        5.    Defendant Ann Gabler's cross claims against the Municipality of Anchorage are dismissed with prejudice.

        LET JUDGMENT be entered and docketed accordingly.

        DATED:    April 24, 1991.

                DONALD MACDONALD IV
                United States Bankruptcy Judge


Serve: H. Simpson, Esq.
R. Cohen, Esq.
Ann Gabler