Menu  3 ABR 86 

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ALASKA
In re: A92-00175-DMD)
)
NANCY L. WOOD, f/k/a)
Nancy L. Heun,)
)
Debtor.)
________________________________)
KATHLEEN M. HARRINGTON,)Adv. No. A92-00175-001-DMD
)
) Bancap No. 92-3075
)
Plaintiff,)
)
v.)
)
NANCY L. WOOD, f/k/a )
Nancy L. Heun,)
)
Defendant.)
________________________________)

ORDER GRANTING SUMMARY JUDGMENT TO PLAINTIFF

     This case came before the court for hearing on cross- motions for summary judgment. Alan Sherry appeared on behalf of the plaintiff. Harry Goldbar appeared for the defendant. After hearing the arguments of counsel, IT IS HEREBY ORDERED:

     Plaintiff's motion for summary judgment is granted. Defendant's motion for summary judgment is denied. Each party shall pay their own costs and attorney fees.

     This case presents the issue of whether or not guardian ad litem fees incurred in a custody dispute are dischargeable. The defendant, Nancy L. Wood, was assessed with $3,502.40 in fees incurred by plaintiff Harrington in child custody litigation. Harrington appeared as a guardian ad litem for Ms. Wood's son. The custody litigation was resolved unfavorably to Wood. Wood and her
 3 ABR 87  TOP   ex-husband, Robert Huen, are both police officers and employed by the Municipality of Anchorage with substantial salaries. The assessment given to Ms. Wood represented 44 percent of the total guardian ad litem fees in the case. The remainder of the fees were assessed against the father, Robert Huen.

     My review of the leading cases in the area has convinced me that the better reasoned approach requires nondischargeability of guardian ad litem fees. Cases like In re Peters, 133 B.R. 291 (S.D.N.Y. 1991) and In re Ray, 143 B.R. 937 (D. Colo. 1992) clearly and persuasively present the majority view. As stated in Peters:

As noted earlier, what constitutes support is determined under federal bankruptcy law. In general, the federal law is that attorneys' fees incurred by a guardian ad litem acting on behalf of a child during a custody dispute are "in the nature of support." The reasons for this view are clear. The support of a child does not just rest upon daily sustenance. The protection of the child's interests in court by the guardian ad litem constitutes a measure of support for the child whose value to the child cannot be diminished. Indeed, it is in the child's best interests to have custody matters fully and fairly litigated. Insuring this is done is part of the parents' duty to support the child. [Citations and footnotes omitted.]
In re Peters, 133 B.R. at 296.

     I find the guardian ad litem fees incurred here to be nondischargeable child support under 11 U.S.C. § 523(a) (5). This is consistent with Peters, Ray, and the clear majority of cases. In re Glynn, 138 B.R. 360 (Bankr. D. Conn. 1992); In re Hicks, 65 B.R. 227 (Bankr. D. N.M. 1986); In re Laney, 53 B.R. 231 (Bankr. N.D. Tex. 1985); Matter of Coleman, 37 B.R. 120 (Bankr. W.D. Wis.
 3 ABR 88  TOP   1984); In re Yarns, 23 B.R. 370 (Bankr. N.D. Ill. 1982). I decline to follow In re Daulton, 139 B.R. 708 (Bankr. C.D. Ill. 1992); In re Lanza, 100 B.R. 100 (Bankr. M.D. Fla. 1989); and In re Linn, 38 B.R. 762 (9th Cir. B.A.P. 1984).

    Judgment shall be entered and docketed accordingly.

    DATED: December 16, 1992.



                  BY THE COURT

                  DONALD MacDONALD IV
                  United States Bankruptcy Judge