Santa Cruz County v. Cervantes (In re Cervantes)

OPINION

RYAN, Bankruptcy Judge.

Chapter 13 debtor Raymond Cervantes (“Debtor”) filed a complaint (the “Complaint”) to determine the dischargeability of his child support obligations owed to creditor Santa Cruz County (“County”). The bankruptcy court held that the support arrearag-es that accrued after the entry of a state court paternity and child support judgment (the “Judgment”) were nondischargeable, but that the support arrearages that were assigned to County as a condition of receiving public assistance prior to entry of the Judgment were dischargeable. With respect to the pre-Judgment support arrearages, the bankruptcy court held that the nondischarge-ability provisions of Bankruptcy Code (the “Code”)¹ §§ 523(a)(5) and 1328(a) did not apply.

County appeals that portion of the order for summary judgment providing that preJudgment support arrearages assigned to County were dischargeable. We AFFIRM.

I. FACTS

The stipulated facts set forth in the bankruptcy court’s published decision, Cervantes v. Santa Cruz County (In re Cervantes), 212 B.R. 643 (Bankr.N.D.Cal.1997), are summarized below. In March 1993, Monica Samu-dio applied for Ad to Families with Dependent Children (“AFDC”) on behalf of her minor daughter, Samantha Cervantes. As a condition for receiving AFDC, Monica assigned to County all rights to support from Debtor that she had on behalf of herself or Samantha pursuant to California Welfare and Institutions Code (“CW & IC”) § 11477 and the Social Security Act, 42 U.S.C. § 602(a)(26)(A). At that time, Samantha’s paternity had not been legally established.

In October 1994, County obtained the Judgment against Debtor in state court. The state court ordered Debtor to make prospective child support payments in the amount of $219 per month (the “post-Judgment arrearages”) and to reimburse County $4,161 for child support arrearages covering the period from March 1993 through September 1994 (the “pre-Judgment arrearages”).

On September 11, 1996, Debtor filed a chapter 13 bankruptcy petition. County subsequently filed the Complaint to determine the dischargeability of the pre- and post-judgment arrearages under § 523(a)(5). Both parties filed cross motions for summary judgment. The bankruptcy court held that the post-judgment arrearages were nondis-chargeable under § 523(a)(5). However, the court held that the pre-Judgment arrearages owed to County were dischargeable because neither Monica nor Samantha had any accrued rights to assign prior to the entry of the Judgment. See Cervantes, 212 B.R. at 647-48. County filed a timely notice of appeal of the order on cross motions for summary judgment (the “Order”). County appeals that portion of the Order holding that the pre-Judgment arrearages were dis-chargeable.

II.ISSUES²

A. Whether the bankruptcy court erred when it refused to discharge the pre-Judgment arrearages under § 523(a)(5)(A).

B. Whether a nondischargeable debt under § 523(a)(18) is dischargeable in chapter 13.

III.STANDARD OF REVIEW

We review issues of statutory interpretation, which are questions of law, de novo. See County of El Dorado v. Crouch (In re Crouch), 199 B.R. 690, 691 (9th Cir. BAP 1996).

Similarly, we review rulings on summary judgment de novo. See Bank of Los Angeles v. Official PACA Creditors’ Comm. (In re Southland + Keystone), 132 B.R. 632, 637 (9th Cir. BAP 1991).

IV.DISCUSSION

County argues that the bankruptcy court erred in determining that the pre-Judgment arrearages were dischargeable because the 1991 amendment to CW & IC § 11350 gave Monica and Samantha a right to support for the period preceding the date that the Judgment was entered, and thus, the assignment of this right to County was valid and nondis-chargeable under § 523(a)(5)(A). Additionally, County asserts that Congress’s failure to include debts of a kind described in § 523(a)(18) in the nondisehargeability provision of chapter 13 was inadvertent, and thus, such debts should be nondischargeable in a chapter 13 plan.

A. The Bankruptcy Court Did Not Err In Holding That The Pre-Judgment Ar-rearages Were Not Excluded From Discharge Under § 523(a)(5)(A).

The bankruptcy court held that the preJudgment arrearages did not fall within the exception to discharge provided for under § 523(a)(5)(A). The version of § 523(a)(5)(A) that applies to this case provides in pertinent part:

A discharge under section ... 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 ... but not to the extent that—

(A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section I02(a)(26) of the Social Security Act [1*2 U.S.C. § 602(a) (26) ], or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State).

11 U.S.C. § 523(a)(5)(A)(1995) (emphasis added).³

As the emphasized language indicates, if a debt for alimony or support of a spouse or child of the debtor is assigned to another entity, the debt is dischargeable, unless the debt is assigned pursuant to 42 U.S.C. § 602(a)(26). See 11 U.S.C. § 523(a)(5)(A); Visness v. Contra Costa County, 57 F.3d 775, 776-(9th Cir.1995), cert. denied, 516 U.S. 1099, 116 S.Ct. 828, 133 L.Ed.2d 770 (1996). Under 42 U.S.C. § 602(a)(26),⁴ a state participating in the AFDC program must condition eligibility for AFDC aid on an applicant’s assignment to the state of any support rights which have accrued at the time such assignment is executed. See Visness, 57 F.3d at 776 (citing 42 U.S.C. § 602(a)(26)).⁵ These assigned support rights become an obligation owed to the state by the individual responsible for support. See 42 U.S.C. § 656(a)(1995).

In Visness, a case involving facts virtually identical to the facts here, the Ninth Circuit held that a debt, established by a county under CW & IC § 11350 and assigned under 42 U.S.C. § 602(a)(26) and California’s implementing statute, CW & IC 11477(a), was nondischargeable under § 523(a)(5)(A) only if the debtor’s child, spouse, or former spouse had accrued support rights at the time of the assignment. See Visness, 57 F.3d at 778, 780-81 (citing County of Santa Clara v. Ramirez (In re Ramirez), 795 F.2d 1494, 1496-98 (9th Cir.1986), cert. denied, 481 U.S. 1003, 107 S.Ct. 1624, 95 L.Ed.2d 198 (1987)). The Visness court, reaffirming the Ramirez holding, concluded that support rights do not accrue in favor of a child under California law and are not assignable “until a court decree or agreement establishes the noncustodial parent’s support duty.” Id. at 779 (citing Ramirez, 795 F.2d at 1497, 1498 n. 3).⁶ Because the assignment occurred before the debtor’s parental support obligations were established under California law, the debt did not represent an assignment of rights that had accrued to a “spouse, former spouse, or child of the debtor.” Id. at 780-81. Consequently, the court held that the debt was not excluded from discharge under § 523(a)(5)(A). Id.

The 1991 Amendment To CW & IC § 11350 Is Irrelevant To The Facts Of This Case.

County argued before the bankruptcy court that the 1991 amendment to CW & IC § 11350 eliminated the conceptual foundation of Visness — that under California law, a custodial parent and child did not have a right to support that could be assigned prior to the date a support order was obtained. The bankruptcy court rejected County’s argument and held: (1) the amendment to CW & IC § 11350 did not cause the pre-Judgment arrearages to be a debt owed to a spouse, former spouse, or child of the debtor as required by § 523(a)(5); and (2) CW & IC § 11350 did not provide for retroactive assignment of support rights.⁷ See Cervantes, 212 B.R. at 648.

In 1991, the California legislature amended CW & IC § 11350 to provide as follows:

(a) In any case of separation or desertion of a parent or parents from a child or children which results in aid under this chapter being granted to that family, the noncustodial parent or parents shall be obligated to the county for an amount equal to the following:

(1) The amount specified in an order for the support and maintenance of such family issued by a court of competent jurisdiction; or in the absence of such court order, the amount specified in paragraph (2).

(2) The amount of support which would have been specified in an order for the support and maintenance of the family during the period of separation or desertion provided that any such amount in excess of the aid paid to the family shall not be retained by the county, but disbursed to the family ....

Cal. Welf. & Inst. Code § 11350(a)(West Supp.l998)(emphasis added).⁸ As County correctly notes, the Ninth Circuit in Visness did not address the change in CW & IC § 11350.

County contends that the 1991 amendment to CW & IC § 11350 provided the custodial parent and child “with new and significant statutory rights to support, defined as the amount of support (money) which would have been ordered pursuant to the California child support guideline from the date of separation of the noncustodial parent from his child.” Appellant’s Reply Br. 6 (citing Cal. Welf. & Inst. Code § 11350(a)(2)). Thus, according to County, because the custodial parent and child now have a right to support before the date a support order is obtained, such right accrues on the date that the noncustodial parent separated from the child and can be assigned to County. We reject County’s argument because the 1991 amendment to CW & IC § 11350 is irrelevant to the issue before us.

The 1991 amendment to CW & IC § 11350 changed the amount of support that a noncustodial parent owes the county in the absence of a court order. See Cal. Welf. & Inst. Code § 11350(a)(1). Here, a child support order was entered. Under both versions of CW & IC § 11350, the noncustodial spouse is obligated to the county for “[t]he amount specified in an order for the support and maintenance of such family issued by a court of competent jurisdiction.” Cal. Welf. & Inst. Code § 11350(a)(1) (West Supp.1998); Cal. Welf. & Inst. Code § 11350(a) (West 1991). Thus, the amount owed by Debtor to County falls under CW & IC § 11350(a)(1), whieh is identical to CW & IC § 11350(a) as it existed prior to the amendment. In consequence, the amendment to CW & IC § 11350 does not affect the outcome of this proceeding, and we are bound by the Ninth Circuit’s determination that a custodial parent’s or child’s right to support does not accrue until a court order establishing a support obligation is entered. See Visness, 57 F.3d at 779-81 (and California cases cited therein); Ramirez, 795 F.2d at 1497, 1498 n. 3 (and California cases cited therein).

Additionally, CW & IC § 11350(a)(2) cannot be used to collaterally attack a court order establishing the amount of child support owed to a county by a noncustodial parent. As previously stated, the calculation of the amount of support specified in CW & IC § 11350(a)(2) only applies in the absence of a court order. To permit County to fix the amount owed by the noncustodial spouse pursuant to CW & IC § 11350(a)(2) after the Judgment had been entered would effectively circumvent the binding effect of the Judgment. The California legislature clearly intended to set the amount owed to a county under CW & IC § 11350(a)(2) only in cases where there is no child support order. Consequently, the amendment to CW & IC § 11350 did not give Samantha or Monica accrued support rights beyond the Judgment and applicable California law.⁹

B. The Bankruptcy Court Did Not Err In Determining That The Addition Of § 523(a) (18) By The 1996 Welfare Reform Act Did Not Make The Pre-Judgment Support Arrearages Nondis-chargeable In Chapter 13.

County argues that the bankruptcy court erred in concluding that § 523(a)(18), which makes a debt “in the nature of support” and “enforceable under Part D of title IV of the Social Security Act (42 U.S.C. 601 et. seq.)” nondischargeable, did not apply in chapter 13 cases. County further asserts that Congress’s failure to include § 523(a)(18) in the nondischargeability provision of chapter 13 was inadvertent and that Congress clearly intended to make all debts in the nature of support owed to a state or municipality under the Social Security Act nondischargeable throughout the Code, including chapter 13.

The bankruptcy court rejected County’s argument after concluding that “had [Congress] intended to make debts under Code § 523(a)(18) nondischargeable in Chapter 13 cases, it would have added § 523(a)(18) as an exception to a debtor’s ‘superdischarge’ under § 1328(a), as it did, for example, with § 523(a)(5).” Cervantes, 212 B.R. at 648. We adopt the bankruptcy court’s reasoning and conclude that the pre-Judgment arrear-ages are dischargeable in chapter 13.

CONCLUSION

In sum, the bankruptcy court, following Visness, correctly held that the pre-Judgment arrearages were not excluded from discharge under § 523(a)(5)(A) despite the 1991 amendment to CW & IC § 11350. The amendment to § 11350 is irrelevant here because the state court entered an order establishing Debtor’s child support obligations. Thus, the assignment prior to the entry of the Judgment did not convey to County any “accrued” rights as required by 42 U.S.C. § 602(a)(26) and § 523(a)(5)(A).

In addition, the bankruptcy court correctly determined that § 523(a)(18) did not cause the pre-Judgment arrearages to be nondis-chargeable in the chapter 13 case.

Accordingly, we AFFIRM.

1 . The Code is set forth in 11 U.S.C. §§ 101-1330 (1998).

2 . County raises an additional argument for the first time on appeal that the nondisehargeability provision of 42 U.S.C. § 656(b) is an independent nondisehargeability provision that trumps the nondisehargeability provision of § 1328(a). Although County quoted 42 U.S.C. § 656(b) together with § 523(a)(5)(A) for the proposition that assigned support arrearages were nondis-chargeable, County did not assert that 42 U.S.C. § 656(b) provided an independent basis for non-dischargeability that trumps § 1328(a). In addition, neither party referred to 42 U.S.C. § 656(b) as a basis for nondisehargeability at the April 24, 1997 hearing on the cross motions for summary judgment. Furthermore, the bankruptcy court’s opinion does not address this argument. We will not consider issues raised for the first time on appeal. See Concrete Equip., Co. v. Fox (In re Vigil Bros. Constr., Inc.), 193 B.R. 513, 520 (9th Cir. BAP 1996).

3 . On August 22, 1996, Congress deleted the reference in § 523(a)(5) to "section 402(a)(26)” of the Social Security Act and inserted “section 408(a)(3)’' of the Social Security Act. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub.L. No. 104-193 (Aug. 22, 1996). However, the amendments to § 402(a)(26) of the Social Security Act (42 U.S.C. § 602(a)(26)), and to section 408(a)(3) of the Social Security Act (42 U.S.C. § 608(a)(3)), did not become effective until July 1, 1997 — after Debtor filed his bankruptcy petition. Thus, we do not decide the effect of these amendments on § 523(a)(5)(A) in this case.

4 . Section 602(a)(26) provides in pertinent part:

A State plan for aid and services to needy families with children must ... provide that, as a condition of eligibility for aid, each applicant or recipient will be required ... to assign the State any rights to support from any other person such applicant may have (i) in his own behalf or in behalf of any other family member for whom the applicant is applying for or receiving aid, and (ii) which have accrued at the time such assignment is executed.

42 U.S.C. § 602(a)(26)(1995)(emphasis added).

5 . California has implemented the directives set forth in 42 U.S.C. § 602(a)(26) by passing CW & IC § 11477(a), which requires the AFDC applicant to assign all "accrued” support rights to the state. See Cal. Welf. & Inst. Code § 11350 (West Supp.1998).

6 . We note that California Family Code § 4009 provides that "[a]n order for child support may be made retroactive to the date of filing the notice of motion or order to show cause, or any subsequent date, or any subsequent date, except as provided by federal law....” Cal. Fam. Code § 4009 (West 1994)(emjphasis added). In 1992, this statute repealed and superceded California Civil Code § 4700(a), which was substantively identical to California Family Code § 4009. See County of Santa Clara v. Perry, 18 Cal. 4th 435, 75 Cal.Rptr.2d 738, 956 P.2d 1191, 1195 (Cal.1998).

Although the Ninth Circuit in Visness cited In re Marriage of Goosmann, 26 Cal.App.4th 838, 844, 31 Cal.Rptr.2d 613 (1994), for the longstanding general rule in California that an order for child support operates prospectively, see Visness, 57 F.3d at 779, it did not address Marriage of Goosmann's holding that an original child support order could operate retroactively if the party seeking child support makes a formal request in a notice of motion or order to show cause. See Marriage of Goosmann, 26 Cal.App.4th at 843-45, 31 Cal.Rptr.2d 613 (citing Former Cal Fam. Code § 4007(a)).

Similarly, we need not consider the effect of California Family Code § 4009 because neither party raised this issue before the trial court or on appeal and there is no evidence in the record that a formal notice of motion or order to show cause was filed. See Perry, 75 Cal.Rptr.2d 738, 956 P.2d at 1194-98 (holding that child support can only be made retroactive to the filing of the notice of motion for judgment or order to show cause, and not to the filing of the original complaint); Marriage of Goosmann, 26 Cal.App.4th at 845, 31 Cal.Rptr.2d 613 ("The party seeking child support ... must make a formal request [for retroactive support] by procedurally correct means, and then the support order may be made retroactive to that proper formal request.”).

7 . County does not challenge the bankruptcy court’s finding that CW & IC § 11350 did not provide for retroactive support rights.

8 . Prior to the 1991 amendment, CW & IC § 11350 read in pertinent part:

In any case of separation or desertion of a parent or parents from a child or children which results in aid under this chapter being granted to such family, the noncustodial parent or parents shall be obligated to the county for an amount equal to:

(a) The amount specified in an order for the support and maintenance of such family issued by a court of competent jurisdiction; or in the absence of such court order,

(b) The amount of aid paid to the family during such period of separation or desertion limited by such parent’s reasonable ability to pay during that period in which aid was granted....

Cal. Welf. & Inst. Code § 11350 (West 1991).

9 . Because a support order was entered in this case establishing Debtor's liability to County for pre-Judgment arrearages, we do not reach the issue of whether the amended CW & IC § 11350(a)(2) undermines the Ninth Circuit’s holding in Visness when no support order as specified in CW & IC § 11350(a)(1) is entered.