The court has considered debtor's motion to avoid lien, filed March 5, 1991, and Mrs. Yerrington's opposition thereto, filed March 15, 1991, as well as Mrs. Yerrington's motions for additional findings of fact and for amendment of judgment, filed in Adversary Case No. A90-00789-00l DMD (which motions raised issues more appropriately considered in connection with the instant matter). For the following reasons, debtor's motion to avoid the judicial liens for $27,500 and $3,000 in favor of Mrs. Yerrington, which encumber debtor's homestead, is granted and the liens are avoided except for the sum of $2,000.

        This court incorporates the factual findings of its opinion and order dated March 21, 1991, from Adversary Case No. A90-00780-001 DMD. In that proceeding, it was determined that debtor's $27,500 obligation to Mrs. Yerrington was in the nature of a property settlement and, thus, not excepted from discharge pursuant to 11 U.S.C. § 523(a) (5). In this matter, debtor now seeks to avoid two judicial liens encumbering his residence which arose as a result of the divorce proceeding, pursuant to 11 U.S.C. § 522(f) (1). One of the liens is for the property settlement award
    2 ABR 26  to Mrs. Yerrington, and the other is a judgment lien for $3,000, also from the divorce proceeding, for Mrs. Yerririgtons attorneys fees.

        Mrs. Yerririgton claims that her interest in the property on account of the $27,500 property settlement award cannot be avoided, because it is an ownership interest, rather than a lien. She argues that when the state court granted her an "equitable interest" in the property to secure the $27,500 property settlement, it intended that she hold title to the property as tenant-in-common with debtor until his obligation to her was paid.

        Mrs. Yerrington's claim that she has an ownership interest in the property as tenant-in-common is not supported by the record. The state court judge stated that he was granting Mrs. Yerrington an "equitable interest" in the property "to secure a $27,500 debt due and payable within one year." (see Stipulation of Facts for Trial, Adversary Case No. A90-00789-O01 DMD, Joint Exhibit 2, p. 11). He also ordered debtor to execute a note and deed of trust in favor of Mrs. Yerrington to secure this obligation. The state court judge never indicated that a tenant-in-common relationship was being created. In fact, he awarded the home to debtor as his sole and separate property. I find that a tenant-in-common relationship was not created. Mrs. Yerrington's interest in the property resulting from the property settlement is a judicial lien, avoidable by debtor under 11 U.S.C. § 522(f) (1).

        Mrs. Yerrington also contends that a recent Supreme Court decision, Farrey v. Sanderfoot, ___U.S. ___, 1991 WL 83070 (May 23, 1991), is applicable to this case. In Farrey, the Court considered the following issue:

[W]hether § 522(f) of the Bankruptcy Code allows a debtor to avoid the fixing of a lien on a homestead, where the lien is granted to the debtor's former spouse under a divorce decree that extinguishes all previous interests the parties had in the property, and in no event secures more than the value of the non-debtor spouse's former interest.

        The instant case is clearly distinguishable from Farrey. During the entire time that the parties were married, title to the house was solely in the name of debtor. Debtor never conveyed an interest in the property to Mrs. Yerrington, so the parties never held title to the property as tenants by the entirety. AS 34.15.110; AS 34.15.140. Because debtor possessed his interest in the property before Mrs. Yerrington's lien attached, debtor may void the lien as permitted by § 522(f) (1).

        As to the other lien, a $3,000 judgment for attorney's fees, Mrs. Yerrington says it cannot be avoided because the fees were awarded in connection with a child support dispute and the obligation should therefore be considered non-dischargeable per 11 U.S.C. § 523(a) (5). The judgment is, nonetheless, a "judicial lien" within the meaning of 11 U.S.C. § 101(36), and avoidable under § 522(f) (1). The issue of dischargeability of the attorney's fees is not relevant to the avoidance of the judgment lien.

        The two judicial liens are avoidable by the debtor, pursuant to § 522(f)(l), to the extent they impair debtor's homestead exemption, which is $54,000 under state law. AS 09.38.010. The parties stipulated in Adversary Case No. A90-00789-001 DMD that the state court, during the divorce proceeding, found the value of the property to be $55,000.00. [See Stipulation of Facts for Trial, filed March 9, 1991, p.2]. Debtor scheduled the market value of the property to be $56,000 at the time he filed his petition. [See Schedule B-1, filed August 10, 1990]. For the purpose of determining the extent to which the liens are avoided, the property will be valued as of the date debtor's petition was filed. In re Hyman (Hyman v. Plotkin), 123 B.R. 342, 346 (Bankr. 9th Cir. 1991); citing In re Galvan, 110 B.R. 446 (Bankr. 9th Cir. 1990); In re Herman, 120 B.R. 127 (Bankr. 9th Cir. 1990). Evidence of a mortgage or other non-avoidable encumbrance which would further impair debtor's equity in the property has not been presented. The scheduled value of the property exceeds debtor's
    2 ABR 29  homestead exemption by $2,000. I conclude that the lien on account of the property settlement award to Mrs. Yerrington is void in its entirety, and the lien for attorney's fees in excess of $2,000 is void.

        THEREFORE, IT IS ORDERED:

        1.    The judicial lien in favor of Mrs. Yerrington upon property described as Lot 6 of the Seaview Subdivision, Homer Recording District, Third Judicial District, State of Alaska, for $27,500 is void in its entirety, pursuant to § 522(f)(l);

        2.    The judicial lien in favor of Mrs. Yerrington for $3,000 is valid to the extent of $2,000, and any excess amount claimed on account of this lien is void pursuant to § 522(f) (1); and

        3.    The lis pendens recorded by Mrs. Yerrington against the property shall be removed.

        Dated:   June 5, 1991.

DONALD MacDONALD IV
United States Bankruptcy Judge