This is an action by an ex-wife to have certain obligations arising out of a divorce found nondischargeable under 11 U.S.C. § 523(a)(5). I find for the former wife.

Factual Background

        On November 15, 1990 Judge Richard D. Savell entered a decree of divorce between Steven J. Foster (Steven), an Alaskan state trooper, and Jacqueline Ann Foster (Jacqueline), an unemployed housewife and mother of five. Part of that decree required Steven to pay $18,961.98 at 9 3/4% to Jacqueline in monthly payments of $331.66 beginning November of 1990. Steven did not make the payments and filed bankruptcy 36 days after entry of     2 ABR 235  the divorce decree. Jacqueline now seeks to have that obligation excepted from discharge.

        The obligation arose as the result of a stipulation the parties made in the divorce trial. At the start of the divorce trial, the parties agreed that Jacqueline's interest in Steven's state supplemental benefit system (SBS) account was $18,981.69, and that Steven would pay Jacqueline's share to her in monthly payments of approximately $330, over approximately 6 years. Steven's attorney, Patrick Brown, stated that with the agreement to pay Jacqueline her interest in the SBS account, "spousal support was no longer an issue." Jacqueline's attorney, Fleur Roberts, disagreed, however, saying that although the SBS agreement was helpful, "that was just her marital share anyway," and the support issue was not resolved. Brown noted that with the monthly payments of child support and Jacqueline's interest in SBS, Steven would be paying $1,500 per month to Jacqueline. He also stated that if child support was still an issue, all deals regarding the SBS account were off. The judge concluded that the issue remaining for trial was not if Steven should pay additional amounts for spousal support over and above the monthly payments for Jacqueline's SBS interest, but whether Jacqueline should be treated more favorably with respect to division of debts and property.

        The testimony of both parties at trial dealt primarily with issues of division of debts and property, visitation rights     2 ABR 236  and who would pay for travel costs, maintenance of the children on Steven's health insurance policy, and use of the children's Permanent Fund Dividends. Jacqueline testified that it would not pay for her to go to work, because she could not get a job that would pay enough to make a profit after paying for child care. She also testified that she planned to pursue a nursing degree after her youngest child entered kindergarten, in about one year. There was some testimony about Jacqueline being a nurse's aide, but it was not established whether she actually had a credential for this type of work or was otherwise qualified to be an aide. It appeared that she was qualified to do babysitting or work in a daycare but could not do so while caring for her five children.

        Before closing arguments, the parties further detailed their stipulation regarding the SBS fund. They agreed that Jacqueline's interest in the fund, $18,961.98, would bear interest at the rate of 9.75% per annum, and that Steven would make monthly payments of $331.66 for 78 months to pay Jacqueline for her interest. His first payment was to be in November of 1990. If Steven made plans to retire before he had paid Jacqueline's interest in the SBS fund in full, it was agreed he would give her 6 months notice of his plans, and the court could enter an order that the balance due Jacqueline from the SBS fund be paid in a lump sum.

        During the course of the discussion of payment of Jacqueline's interest in the SBS fund, the court noted that if Steven were to retire, the need for monthly payments would no longer exist, because Jacqueline could be cashed out at that time. The court also indicated that Steven had devoted most of his liquid assets to monthly payments for child support and Jacqueline's interest in the SBS.

        In closing arguments, Steven's attorney stated "Mr. Foster will be paying 39% of his net income for child support, plus an additional $300 plus a month to buy out Mrs. Foster's interest in his [SBS] account. He doesn't have much left." It was requested that the cost of visitation for the children be split equally between the parties. Spousal support was not mentioned by either attorney, with the exception of Robert's argument that Jacqueline was entitled to back spousal support. Roberts argued for a division of the martial assets and debts favorable to Jacqueline, and disputed Steven's calculation of Rule 90.3 child support.

        In its findings and conclusions, the court recognized that there should be an unequal distribution of marital assets and debts, due to Steven's greater earning capacity. A larger proportion of the marital debts was awarded to Steven. The court found that the division of personal property previously effected between the parties favored the wife and was fair and equitable.

        Jacqueline's interest in the SBS fund was discussed in paragraph 14 of the findings, as an interest in Steven's retirement benefits which accumulated during the marriage. The only mention of spousal support in either the findings and conclusions or the decree was with reference to back support, which the court denied. In paragraph 10 of the decree, the court dealt with the SBS account as follows:

       10.   The parties have stipulated that the value of Defendant's interest in Plaintiff's Supplemental Benefits Systems Account ("SBS") and Deferred Compensation Account, as accumulated during the marriage, is $18,961.98. Plaintiff will pay Defendant $18,961.98 within (sic) interest to run on the same at the rate of nine and three-quarters percent (9¾%) per annum from the date of this Decree of Divorce until paid in full. Payments will be made at the rate of $331.66 per month, inclusive of interest, for a period of seventy-eight (78) months, beginning in November of 1990 and continuing through March, 1997.

        Plaintiff will notify Defendant at least six (6) months in advance of any intention of retiring from the Alaska State Troopers. If he does, in fact, retire, and a portion of the $18,961.98 is still owed to Defendant, the Plaintiff will pay that amount to Defendant from the proceeds of either the SBS or the Deferred Compensation Account or both.

        At the trial before this court, Patrick Brown (Steven's divorce attorney) testified that child support was not really an issue in the divorce trial. He said that if the monthly payments for Jacqueline's interest in the SBS account were to have been spousal support, he would have labeled them as such, because of the tax benefits to Steven. Brown also testified that there was no issue regarding Jacqueline's entitlement to her marital share of the SBS account. He had no recollection as to whether Jacqueline's early receipt of her interest in the SBS fund was in exchange for dropping the spousal support issue.

        Jacqueline's divorce attorney, Fleur Roberts, testified at the adversary trial. She said Jacqueline gave up her claim for spousal support in exchange for early payment of her interest in the SBS account. Roberts also stated that the corrected support order which she filed in state court deleted any reference to spousal support because the parties did not want the state's child support enforcement agency enforcing that obligation along with the child support obligation. She also stated that the payments were never designated as spousal support in the decree.

        Jacqueline testified that she had had to obtain state assistance when Steven failed to make the monthly payments.

Analysis

        11 U.S.C. § 523(a) (5) excepts obligations for alimony, maintenance, or support from discharge. What constitutes alimony, maintenance, or support will be determined under bankruptcy laws, not state law. 3 Collier on Bankruptcy, 15th ed., ¶ 523.15, p. 523-.01. Factors utilized by courts in determining whether a particular payment is property settlement or support are:

1.	The label given to the payments;
2.	The context or location of the disputed provision in the decree;
3.	The parties' negotiations and understanding of the provision;
4.	Whether a lump sum or periodic monthly payments were provided for;
5.	The relative earning power of the parties;
6.	Whether the recipient spouse would be entitled to alimony under state law;
7.	Whether interest accrues on the entire debt or only on the monthly payments past due;
	and
8.	Whether the debtor's obligation of payment terminates on the death or remarriage of the recipient, or on the death of the debtor.

In re Combs, 101 B.R. 609, 616 (9th Cir. BAP 1989).

        Applying the Combs criteria to this case, there was no specific label given to the monthly payments to Jacqueline, although the disputed provision is found in the property settlement portion of both the findings and conclusions and the decree. Steven understood the payment to be property settlement. Jacqueline understood the payment to be more in the nature of alimony or support. She and the children would be forced on     2 ABR 241  welfare if the payments were not made. She would also be unable to train for any new vocation. Periodic monthly payments were provided for. The relative earning power of the parties is profoundly different. Steven is an Alaskan state trooper earning nearly $60,000.00 annually. Jacqueline Foster is an impoverished mother of five with little or no earning power. Although Jacqueline could have been entitled to alimony under state law, in Alaska such alimony is usually made through adjustments in property settlement. A substantial adjustment was made by the state court judge in allocating the parties' debts even after Steven's stipulation for payments based on SBS fund equity. Interest accrues on the entire debt and not only on the monthly payments when due. Payment does not terminate on the death or remarriage of the recipient.

        Having reviewed these factors, I conclude these payments to be support for Jacqueline. The early payments of the obligations arising out of the SBS fund resulted in Jacqueline effectively dropping her support claims. By obtaining early payments on her equity in the SBS fund, Jacqueline thought she could maintain herself and her children without the necessity of welfare. Thus, even though the payments listed in the state court decree were in the nature of division of property, the parties' true intent was to provide for the immediate support and welfare of Jacqueline Foster. By providing for immediate payments, the     2 ABR 242  character of the payments was altered. It made them an obligation created to cover Jacqueline's necessities of life. The early payment arrangement was simply a recognition by the parties of her needs. There is no other provision in the agreement that provides for them. "If an agreement fails to provide explicitly for support, a court may presume that a so-called 'property settlement' is intended as support when the circumstances of the case indicate that the recipient spouse needs support." Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir. 1984). I conclude that the obligation of Steven Foster to make payments to Jacqueline Foster of $331.66 per month for a period of 78 months beginning in November of 1990 and continuing through March of 1997 is a nondischargeable support obligation.

        Therefore, IT IS HEREBY ORDERED:

        1.    The obligation of the defendant Steven J. Foster to pay the plaintiff the sum of $18,961.98 plus interest of 9 3/4% per annum at the rate of $331.66 per month for a period of 78 months arising from a decree of divorce entered November 15, 1990 in Case No. 4FA-89-1840 in the Superior Court for the State of Alaska, Fourth Judicial District, is a nondischargeable obligation in accordance with 11 U.S.C. § 523(a)(5) of Title 11;

        2.    Plaintiff is awarded her costs; and

        3.    Each party shall pay their own attorney's fees.

        Let Judgment be entered and docketed accordingly.

                DATED:   December 20, 1991.

BY THE COURT




DONALD MacDONALD IV
United States Bankruptcy Judge