A hearing was held on January 14, 1994, on the motion of plaintiff, Jeanne Adele Willis, for summary judgement. She seeks to establish that the obligation of debtor to pay the marital debts listed in ¶ 13 of the Oregon divorce decree between her and the debtor-defendant, Edward David Willis, was a nondischargeable support obligation under § 523(a)(5) of the Bankruptcy Code. I hold that it is a nondischargeable support obligation.

Although extensive affidavits were filed concerning the relationship of the parties before, during, and after the marriage, the principal focus in a dischargeability matter such as this is to determine the intent of the parties or the divorce court when responsibility to pay marital obligations was assigned to a debtor at the time of the divorce proceeding (not when the bankruptcy petition was filed or at the time of the dischargeability hearing). In re Combs, 101 BR 609, 612 (9th Cir BAP 1989).

"In interpreting a decree, and even in deciding if it is ambiguous, the court should consider the surrounding circumstances and all relevant incidents bearing on the parties' intent when they entered the decree." In re Combs at 616.

The divorce decree was entered on June 30, 1992, by the Polk County, Oregon, Circuit Court. At that time, Jeanne Willis was principally engaged in raising the couple's one child, and apparently a       3 ABR 309  child by a previous marriage. Mr. Willis was employed as a helicopter pilot. ¶ 13 of the decree provides:

13. Debts. Each party shall pay those debts of theirs incurred since the date of their separation in March, 1992 and shall indemnify and hold the other party harmless therefrom. Respondent shall pay and assume all of those debts incurred during the marriage which remain unpaid and shall indemnify and hold the Petitioner harmless on account of those debts. Those debts include First Interstate Bank loan for the 1990 Ford Aerostar Van, $12,000; Sears, $1,000; J.C. Penny's, $500; Gloria Holman, $5,000; Bill Thompson, $500; Darrel Evenson, $1,000; Al Holman, $650; and all past-due utility bills.

Nonetheless, ¶ 13 was part of the decree and it is this court's obligation to determine if the amounts of the debts Mr. Willis was to pay were in the nature of a nondischargeable support obligation at the time it was entered as part of the decree. See, Gwynn v Wilhelm, 360 P2d 312, 313 (Ore 1961) (doctrine of res judicata, including collateral estoppel, as to matters essential to judgment, applies to judgments by default). See also, In re Comer, 723 F2d 737 (9th Cir 1984) to the effect that res judicata barred looking behind default to determine the amount of the obligation where application of res judicata would not preclude the exercise of the bankruptcy court's exclusive jurisdiction to determine the nature of the debt for purposes of dischargeability.⁽¹⁾

For bankruptcy purposes, whether or not an obligation should be deemed one for support is ultimately determined by federal law. See, Shaver v. Shaver, 736 F2d 1314 (9th Cir 1984). The court is not bound by the title of the paragraph creating the obligation, but is required to look at the underlying facts. Stout v Prussel, 691 F2d 859, 861 (9th Cir 1982). The facts that existed on the date the support obligation was assigned to debtor by the divorce decree are the ones that are important, not the subsequent ebb and flow of the fortunes of the parties before or after that obligation was assigned by the decree. If there is a change of circumstances, that will have to be taken back to the divorce court for adjustment.

In this case, Mr. Willis was the breadwinner at the time of the divorce, and Mrs. Willis was basically the care-giver at home. He could afford to pay these bills, whereas she basically could not without impairing her lifestyle. In re Lopez, 81 BR 31 (Bankr SD Cal 1987); In re Lightner, 77 BR 274 (Bankr D Mont 1987); and compare, Stout v Prussel at 860. She has filed sufficient affidavits to establish this, and he has not filed sufficient affidavits or otherwise pointed to admissible facts to rebut these allegations. In re Fredrick S. Wyle Professional Corp. v Texaco, Inc., 764 F2d 604, 608 (9th Cir 1985). Therefore, a summary judgement is appropriate since there is no question of material fact that the obligations mentioned in ¶ 13 are in the nature of support for federal bankruptcy dischargeability purposes.

Jeanne Willis is also awarded $120.00 for the filing fee of this case, and must file a cost bill with the clerk for any additional amounts. Since she lives in Oregon, I will extend the time for filing a cost bill to thirty days from the entry of this judgement. The cost bill should be filed with the clerk.

DATED: January 14, 1994

HERBERT A. ROSS
U.S. Bankruptcy Judge

1.       3 ABR 309  Comer should be read cautiously to the extent it implies the court can reinterpret facts already determined by a state court in light of Grogan v Garner, 111 SCt 654, 658 (1991) which held that a bankruptcy court must give collateral estoppel effect to a valid state court judgment which has already adjudicated an issue. Also, I question Comer's implication that a bankruptcy court is the only court which can determine dischargeability under § 523(a)(5) of the Bankruptcy Code. See, 28 USC § 1334(b) and compare, In re Moralez, 128 BR 526, 528 (Bankr ED Mich 1991) (holding that the bankruptcy court does not have exclusive jurisdiction over actions alleging nondischargeability of support obligations) with In re Harris, 155 BR 135, 136 (Bankr ED Va 1993) (holding that exclusive jurisdiction exists for the types of debts described in § 523(c), i.e., §§ 523(a)(2),(4), or (6)).