In this post judgment matrimonial appeal, the court addressed whether a trial court may determine that plaintiff's obligation to pay defendant previously awarded counsel fees was non-dischargeable as a domestic support obligation in any future federal bankruptcy proceeding pursuant to 11 U.S.C. § 523(a)(5) (Section 5). Defendant had twice tried unsuccessfully to discharge obligations in the bankruptcy court, thus, despite the lack of a pending bankruptcy proceeding, there was clearly an ongoing dispute as to the payment of counsel fees, which presented an actual controversy over which the trial court had jurisdiction. The court held the lack of a filed bankruptcy action does not bar review of non-dischargeability when the record itself presupposes it, as it did here.
Pursuant to 11 U.S.C. § 1328(a)(2), domestic support obligations as defined in Section 5 are not dischargeable in bankruptcy cases filed under Chapters 7, 11, 12, or 13 of the Bankruptcy Code. However, obligations arising solely under Section 15 may be dischargeable in Chapter 13 filings. 11 U.S.C. § 1328(a)(2). The court held the trial judge properly determined the counsel fee award to be non-dischargeable as a domestic support obligation. The underlying matter involved defendant's attempt to preserve his ability to visit with his daughters regularly, despite plaintiff's attempt to relocate them across the country. Accordingly, the trial court further established that the funds in this matter could have been used for the children's support including tuition and child support payments, such that the counsel fee award was tantamount to an award of support for the benefit of the children.