Pending before the court is the plaintiff's motion for summary judgment, filed November 20, 1998. No opposition to the motion has been filed. Having reviewed the motion and memorandum in support of summary judgment,

IT IS ORDERED that the motion for summary judgment is denied.

Discussion

In this adversary proceeding the debtor, Jay W. Kennelty, seeks a determination that his obligation to pay for one half of the undergraduate college education expenses for his children, as provided under a separation agreement and decree of divorce entered in Ohio state court, is not excepted from discharge under 11 U.S.C. § 523(a)(5). Section 523(a)(5) excepts alimony, maintenance and child support obligations from discharge in bankruptcy.

6 ABR 63      Defendants Sandra Croyle and Korey Kennelty filed an answer to the plaintiff's complaint, but did not oppose the motion for summary judgment. In spite of the lack of opposition, I find that a genuine issue of material fact exists in this case which precludes the entry of summary judgment.

Fed. R. Civ. P. 56 is made applicable to adversary proceedings by Fed. R. Bankr. P. 7056. Pursuant to Fed. R. Civ. P. 56(c), summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Here, the plaintiff's summary judgment motion is supported solely by the allegations of his complaint and copies of the separation agreement and divorce decree entered by the Ohio state court. The separation agreement required the debtor to make monthly support payments for his three minor children until they reached the age of majority (18 years old). The agreement also provided, in Article 5, that in addition to any other obligations contained in the separation agreement, the debtor "shall pay fifty percent (50%) of the cost of sending the children to a state college or university for an undergraduate education." It is this provision that the debtor contends is dischargeable, notwithstanding the provisions of § 523(a)(5). The debtor argues that, in Alaska, a court cannot order a parent to pay for child support after a child attains the age of majority, nor can the court order a parent to pay for post majority college expenses. The debtor says his agreement to pay for half of the college expenses was nothing more than a contractual obligation, which can be discharged in bankruptcy.

In both Alaska and Ohio, where the decree at issue was entered, the state court cannot require parents to pay child support or post-secondary education expenses after a child reaches the age of majority.⁽¹⁾ However, in both Alaska and Ohio, parents 6 ABR 64      can create an enforceable obligation for the support of their children beyond the age of majority under the terms of a separation agreement.⁽²⁾

Although bankruptcy courts may look to state law for guidance, federal law determines whether an obligation is in the nature of child support.⁽³⁾ In determining whether an obligation is in the nature of support, "the court must look to the 'intent of the parties and the substance of the obligation.'"⁽⁴⁾ Several courts have found that a debtor's obligation to pay a child's post-majority college expenses is nondischargeable under § 523(a)(5).⁽⁵⁾

Here, the nature of the debtor's obligation to pay half of his children's college expenses cannot be determined by looking solely to the divorce decree and separation agreement. Further, the record is silent on the intent of the parties concerning this provision. If the parties or the state court intended this provision to function as child support, it is nondischargeable. Accordingly, a genuine issue of material fact exists which precludes the entry of summary judgment. The plaintiff's motion for summary judgment will, therefore, be denied.

DATED: January 4, 1999.

BY THE COURT
DONALD MacDONALD IV
United States Bankruptcy Judge

1. 6 ABR 63      Dowling v. Dowling, 679 P.2d 480, 483 (Alaska 1984); Rohrbacher v. Rohrbacher, 615 N.E.2d 338, 341 (Ohio Ct. App. 1992).

2. 6 ABR 64      Rohrbacher, 615 N.E. 2d at 341-341; see also Dowling, 679 P.2d at 483, n.7; In re Dunn, 654 N.E.2d 1303, 1308 (Ohio Ct. App. 1995)(one exception to rule that court can't provide for support of adult child is where parties to a separation agreement voluntarily agreed to provide a college education for a child, and the agreement is incorporated into the divorce decree).

3. 6 ABR 64      Gard v. Gibson (In re Gibson), 103 B.R. 218, 220 (B.A.P. 9th Cir. 1989).

4. 6 ABR 64      Id. at 103 B.R. 221, citing Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir. 1984); see also Bush v. Bush (Matter of Bush), 154 B.R. 69, 71 (Bankr. S.D. Ohio 1993)(bankruptcy court looks to intent of parties or state court to see if a support obligation was created).

5. 6 ABR 64      Harrell v. Sharp (In re Harrell), 754 F.2d 902 (11th Cir. 1985); Boyle v. Donovan, 724 F.2d 681 (8th Cir. 1984); Leslie v. Leslie (In re Leslie), 181 B.R. 317 (Bankr. N.D. Ohio 1995); Ozey v. Ozey (In re Ozey), 166 B.R. 169 (Bankr. N.D. Okla. 1994); Warren v. Warren (In re Warren), 160 B.R. 395 (Bankr. D.Me. 1993); Bush, 154 B.R. at 72 Portaro v. Portaro (In re Portaro), 108 B.R. 142, 147 (Bankr. N.D. Ohio 1989); Pierce v. Pierce (In re Pierce), 95 B.R. 154 (Bankr. N.D. Cal. 1988); Casler v. Casler (In re Casler), 94 B.R. 741 (Bankr. M.D. Fla. 1988); Proctor v. Proctor (In re Proctor), 42 B.R. 537 (Bankr. E.D. Mo. 1984).