HERBERT A. ROSS
U.S. Bankruptcy Judge

Cross motions for summary judgment were filed by the parties regarding the dischargeability of a judgment against Debtor, Melvin Nelson, in favor of the State of Alaska for foster care for his child. I grant summary judgment to the State and hold the debt, although not owed "to a spouse, former spouse, or a child of the debtor" in the literal words of 11 U.S.C. § 523(a)(5), is nondischargeable.

The judgment was entered by the Superior Court of the State of Alaska at Fairbanks in Case No. 4FA-84-86 CP, In re K.N.
    2 ABR 5  for $1,840 on September 11, 1987 for foster care provided for Debtor's child at the expense of the State from March 27, 1985 to March 25, 1987.

Melvin Nelson filed this chapter 7 proceeding on May 1, 1988. At that time, about $1,457.55 was still due on the judgment. Although he did not list the State in the schedules, notice of the bankruptcy and the automatic stay was given to the State by Debtor's attorney. Some collection activity by the State took place post-petition, but the State has ceased pending the determination of this dischargeability action.

This adversary proceeding was filed by Melvin Nelson for a determination that: (a) the State was in civil contempt for violating the discharge injunction under § 524(a) of the Bankruptcy Code (11 U.S.C. §101, et seq.); (b) enjoining further collection; (c) return of the funds collected on the judgment under §§ 362, 522(h), 524, and 553 of the Bankruptcy Code; (c) a satisfaction of the judgment in Case No. 4FA-87-86 CP; (d) actual damages of not less than $10,000; and, (e) other relief called for by the facts.

In his summary judgment motion, Debtor claims the debt to the State of Alaska was discharged, and he cites by way of analogy In re Linn, 38 B.R. 762 (9th Cir. BAP 1984) (exceptions to discharge must be plainly expressed and strictly construed; debtor's liability to attorney and psychiatrist appointed for debtor's son during custody litigation held dischargeable); In re Doyle, 70 B.R. 106 (9th Cir. BAP 1986) (palimony is dischargeable
    2 ABR 6 since the claimant was not a "spouse" or "former spouse"); and In re Ramirez, 795 F.2d 1494 (9th Cir. 1986) (where AFDC debt of debtor did not arise from a separation agreement, divorce decree, or property settlement agreement, which were the only options under a former version of § 523(a)(5) of the Bankruptcy Code, the debt was not excepted from discharge).

The State argues in its cross motion for summary judgment that the debt to the state is nondischargeable under the holding of In re Huber, 80 B.R. 531 (Bankr.D.Colo. 1987) (debt owed by debtors to county for foster care for their children was nondischargeable under § 523(a)(5); payments due a third party for services in the nature of support for benefit of a child are nondischargeable in bankruptcy).

I adopt the line of cases exemplified by In re Seibert, 914 F.2d 102 (7th Cir. 1990), In re Jones, 94 B.R. 99 (Bankr.N.D.Ohio, 1989), and In re Huber. These cases give a broad interpretation of 11 U.S.C. § 523(a)(5) which provides:

(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt-

• • • •

(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that-

    2 ABR 7 

(A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or

(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support;

In re Seibert concerned the right of Green County, Wisconsin, to recovery for hospital and medical expenses from a debtor for the birth of a child of the debtor father. The mother was not married to the debtor at the time, so the nondischargeability of the costs could not be attributable for her right to support. This was because she was not then a "spouse." The debtor argued that nothing was owed to the child which a literal reading of § 523(a)(5) might imply is a prerequisite to nondischargeability. The court said:

The fact that the debt was assigned to the state does not affect its dischargeability. Appellees argue that but for the assignment, the debt would be owed to the hospital, a third party, and not directly to the child. The statutory requirement that the debt be owed to a child of the debtor is to be read broadly. See In re Jones, 94 B.R. 99, 102 (Bkrtcy.N.D.Ohio 1988). "A strict reading of § 523(a)(5) as 'to whom' payments are made defeats both state statutes and the intent of the Code because 'obligations arising out of the family relationship and the stability generated thereby outweighs [sic] the general bankruptcy goal of a fresh start.' " In re Huber, 80 B.R. 531, 533 (Bkrtcy.D.Colo.1987) (quoting In re Morris, 14 B.R. 217, 220 (Bkrtcy.D.Colo.1981)).

The Ninth Circuit authorities cited by Debtor in his motion for summary judgment do not require a different result. In re Ramirez, 795 F.2d 1494 (9th Cir. 1986), interpreted an earlier version of § 523(a)(5) which did not make nondischargeable a support obligation absent a "separation agreement, divorce decree or property settlement agreement." That problem is not present in our case since § 523(a)(5) was amended in 1984 to add "or other order of a court of record." The judgment in this case fits this condition.

While In re Linn, 38 B.R. 762, 763 (9th Cir. BAP 1984) does state as a general proposition that exceptions to discharge must be plainly expressed, the State cites In re Reynolds, 726 F.2d 1420, 1423 (9th Cir. 1984) in which the court emphasized the paramount social concern that parents support their children. Reynolds held that the 1984 amendment should be applied retroactively to pending cases with respect to support payments assigned to a state. Thus, the Ninth Circuit weighed the domestic relation policies concerning child support against the bankruptcy policies concerning "fresh start" and found the former at least as compelling. Also, the Supreme Court this term focused on the sanctity of the discharge in Grogan v. Garner, 111 S.Ct. 654, 659 (1991) when it held that a preponderance of evidence standard, as opposed to clear and convincing evidence, is to be used in § 523(c) trials. Grogan held that it was not appropriate to focus on the
    2 ABR 9 "fresh start" aspect of bankruptcy in derogation to other legitimate policy concerns.

Finally, in In re Doyle, 70 B.R. 106, 109 (9th Cir. BAP 1986) the court mentioned that, when § 523(a)(5) was extended, "the fact situation always involved family duties. In the present situation the relationship between Niermeyer [the beneficiary of a non-marital support judgment] and Doyle cannot be considered a family relationship, nor is the obligation for the support of wife or family." This decision focuses on the palimony situation and should be read narrowly in my opinion.

A judgment will be entered for the State declaring the debt nondischargeable and providing that the claim of Debtor for violation of the discharge injunction under § 524(a) of the Bankruptcy Code is dismissed. Debtor's claim for damages against the State is not allowable in any event if it has not filed a proof of claim. I have not located one in the file. Hoffman v. Connecticut Dept. of Income Maintenance, 109 S.Ct. 2818, 106 L.Ed.2d 76 (1989)

DATED: May 29, 1991

HERBERT A. ROSS
Bankruptcy Judge