23

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Gregory S. Walz, WALZ LAW OFFICE, P.O. Box 1794, St Cloud, MN

56302, for appellant.

Samuel V. Calvert, SAM V. CALVERT, PA, 1011 2nd St North,

(“Kloeppner”) for a child whom he believed he fathered. (Bartos v. Kloeppner, No. 73-

F9-02-1614, at *3 (Minn. Dist. Ct. Apr. 6, 2010), Ex. 15, Docket No. 1.) Bartos and

Kloeppner never married. (Hr’g Tr. 18:21, Ex. 3, Apr. 26, 2011, Docket No. 1.) Bartos

took a paternity test and discovered that he was not the father. (Id. 10:1-12.) As a result,

Bankruptcy Petition seeking to discharge this obligation. (See Notice of Appeal at 1.)

Bartos objected to the discharge of this obligation citing 11 U.S.C. §§ 523(a)(5) and (15).

(Bankr. Compl., Ex. 15, at 1-3, Nov. 12, 2010, Docket No. 1.) The Bankruptcy Court

ordered summary judgment for Kloeppner and held that her debt to Bartos was

dischargeable. (Order Granting Summ. J., Ex. 7, Apr. 27, 2011, Docket No. 1.) Because

Kloeppner does not owe Bartos child support or any other nondischargeable debt, the

Court will affirm the Bankruptcy Court’s order and grant summary judgment to

Kloeppner.

ANALYSIS

is clearly erroneous when although there is evidence to support it[,] the reviewing court is

Case, 452 F.3d 756, 761 (8

Cir. 2006) (internal quotation and alteration omitted).

Summary judgment is appropriate where there is no genuine dispute of material

fact and the moving party can demonstrate that it is entitled to judgment as a matter of

return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

(1986). A court considering a motion for summary judgment must view the facts in the

light most favorable to the non-moving party and give that party the benefit of all

reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. NONDISCHARGEABILITY

Bartos objects to the discharge of Kloeppner’s debt citing 11 U.S.C. §§ 523(a)(5)

and (15). 11 U.S.C. § 523(a)(5) provides that among the types of debts not discharged by

11 U.S.C. § 101(14A) defines “domestic support obligation” as a debt that is:

the order for relief in a case under this title, by reason of applicable

(i) a separation agreement, divorce decree, or property settlement

agreement [or]

(ii) an order of a court of record . . . .

described in paragraph (5) that is incurred by the debtor in the course of a

divorce or separation or in connection with a separation agreement, divorce

decree or other order of a court of record . . . .

In determining whether Kloeppner’s debt falls under one of these exceptions, the

Court must look to the substance of the state court’s award to Bartos, not solely the label

of that award. See 11 U.S.C. § 101(14A) (stating that the determination of whether a debt

is “in the nature of alimony, maintenance, or support” is “without regard to whether such

debt is expressly so designated”). The Court finds that neither the language used by the

state court nor the true nature of Bartos’ award falls under §§ 523(a)(5) or (15).

On April 6, 2010, the state court ordered that Kloeppner pay Bartos $7,558.17 “for

all money expended on behalf of the child or paid to [Kloeppner] or paid to the County of

child support paid” and for genetic testing costs. (Id. at *4, 6-9.) Although the Court

used the phrase “child support,” it did not award Bartos child support. Rather, the Court

ruled that Bartos could recover in equity the child support that he wrongfully paid.

The sum the Court awarded to Bartos does not fall under the plain language of 11

U.S.C. §§ 523(a)(5) or (15) for three reasons. First, Bartos is not a “spouse or former

priority claim for child support to be refunded to him when, in fact, it was determined

that he was not the father of the [child].” See In re Vanhook, 426 B.R. 296, 302 (Bankr.

N.D. Ill. 2010). Bartos is not within the categories of persons that fall under §§ 523(a)(5)

or (15).

Second, Bartos’ award is not “in the nature of alimony, maintenance, or support.”

Instead, it is the return of money that Bartos should never have paid Kloeppner. See 11

U.S.C. § 523(a)(5).

Because 11 U.S.C. § 523(a)(5) requires that the debt, to be non-

dischargeable, must in substance function as support, the Court finds that

him to his former [partner] to state a claim that a debt owed to him by his

his ex-wife for a child that he did not father, the court held that “the judgment debt [owed to the

creditor] is not in the true nature of child support. Rather, it is merely a money judgment

awarded to the Creditor . . . .”); Norbut v. Norbut, 387 B.R. 199, 206-07 (Bankr. S.D. Ohio 2008)

(holding that the return of child support overpayment was in the nature of support, because the

state court that ordered its return looked at the economic and other circumstances of the parties

when reaching its decision); In re Drinkard, 245 B.R. 91, 94 (Bankr. N.D. Tex. 2000) (holding

that the return of an overpayment is “simply a money judgment” and is dischargeable); In re

Lutzke, 223 B.R. 552, 554-55 (Bankr. D. Oregon 1998) (holding that an overpayment in child

support was dischargeable because it was not support and was not awarded because of need).

At oral argument, Bartos raised for the first time that Kloeppner’s debt is

nondischargeable because of her fraud. (See Bankr. Compl. at 1-2.) This issue is not

properly before the Court, and it appears to have no merit because both parties admit that

the state court rejected Bartos’ allegations of fraud. Because Bartos was never married to

Kloeppner and is not the father of her child, and because his award is not the result of a

separation agreement or otherwise nondischargeable, Bartos’ state court award does not

fall under 11 U.S.C. §§ 523(a)(5) or (15).

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: October 24, 2011 ____s/ ____

at Minneapolis, Minnesota. JOHN R. TUNHEIM

United States District Judge