DEBTOR CASE NO. 97-60592





VS. ADV. NO. 97-6035








This matter has been submitted for a decision on the record pursuant to an Order of Submission entered herein on September 21, 1998. The question before the Court is whether certain monies owed to the defendant as a result of a judgment in the Whitley District Court are dischargeable under 11 U.S.C. '523(a)(5). This Court has jurisdiction of this matter pursuant to 28 U.S.C. '1334(b); it is a core proceeding pursuant to 28 U.S.C. '157(b)(2)(I).

This matter was initiated by the filing of the plaintiff=s Complaint to Determine Dischargeability of Debt on December 3, 1997. There he set out that pursuant to the above-referenced Whitley District Court judgment he had been adjudged to owe the defendant the sum of $8,322.78 for Abirthing/medical expenses@ arising from the pre-natal care of the mother and the birth of his minor child Alexander F. Leach, plus $4,480.00 in Achild support arrearages@ plus the sum of $156.00 for Athe cost of the paternity DNA test.@ The plaintiff alleged that while the $4,480.00 judgment for child support arrearages was not dischargeable, the $8,322.78 for medical expenses for the pre-natal care of the mother and birth of the child, as well as the $156.00 for the paternity test were dischargeable.

The issues raised in the plaintiff=s Complaint are resolved by application of 11 U.S.C. '523(a)(5)(A) which states in pertinent part:

A discharge under section 727, .... of this title does not discharge an individual debtor from any debt--

to a spouse, former spouse, or child of the debtor, for .... support of such spouse or child, in connection with .... a[n] order of a court of record .... but not to the extent that--

such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned to .... a State or any political subdivision of such State);

As concerns the facts before the Court, the parties stipulated the amounts set out above, as well as the nondischargeability of the amount representing child support arrearages. They further stipulated that at the time the birthing/medical expenses were incurred, the child=s mother, Jacqueline E. Leach, had a medical card from the Commonwealth of Kentucky for herself and the child, and that the sum representing the expenses is due the Commonwealth to reimburse it for expending that sum for the mother and the child. Finally, they stipulated that of the $8,322.78 in total birthing/medical expenses, the sum of $6,765.22 is attributable to the care of the mother, Jacqueline Leach, and the sum of $1,557.56 is attributable to the care of the child. The Commonwealth also paid $156.00 for tests to determine the paternity of the child, apportioned $52.00 each to the debtor, the mother, and the child, and the total paid is now due and owing to the Commonwealth.

The plaintiff pointed out that while not stipulated, the fact that he and Ms. Leach were not married is apparent from the circumstances. He then went on to argue that since Ms. Leach was not and had never been his spouse, any sums expended for care she received were dischargeable. He therefore concluded that at least the $6,765.22 owed to the Commonwealth for pre-natal and post-natal care of the mother should be found to be dischargeable. Further, he argued that while pursuant to KRS 205.624(1) Ms. Leach had assigned her rights to any third-party payments to the Commonwealth in return for receiving public welfare payments, she had not assigned any such rights of the child. To be nondischargeable as child support a debt must be owed to the child or be validly assigned on behalf of the child to the government entity.

The plaintiff cited In re Seibert, 914 F.2d 102 (7th Cir. 1990), in which the court found that medical expenses and court costs associated with a paternity action constituted a debt owed to the child which had been assigned to the state, so as to be nondischargeable pursuant to '523(a)(5). A subsequent Seventh Circuit decision, In re Platter, 140 F.3d 676 (1998), limited Seibert to its facts and distinguished it. The Platter court ruled that a debt owed to a county for the support of the debtor=s son in a residential treatment was dischargeable in the mother=s bankruptcy because it was not a debt to the debtor that had been assigned to the state, but was owed directly to the state and was therefore not subject to the strict language of '523(a)(5). At 681.

In the Seibert case the mother had been required to assign both her rights and the rights of the child to support or maintenance to the state. The court further observed that the record did not reveal whether the medical expenses were solely attributable to the care of mother, both before and after birth, or whether a portion was attributable to the baby after birth. The plaintiff herein contended that if the court did not believe that this apportionment was significant, it would not have commented on it. The plaintiff concluded that since the parties here have stipulated to such an apportionment, and this Court can make such a distinction, that the medical expenses attributable to Ms. Leach should be declared dischargeable.

This Court agrees with the plaintiff=s position regarding the expenses associated with Ms. Leach. The medical expenses attributable to Ms. Leach in the amount of $6,765.22 are dischargeable as they do not fall within the purview of 11 U.S.C. '523(a)(5). The birthing and medical expenses attributable to the child in the amount of $1,557.56 are nondischargeable as child support. The amount expended for DNA testing, while apportioned among the debtor, Ms. Leach, and the child, represents the cost of determining the paternity of the child, and the Court finds that the entire $156.00 cost should be characterized as child support and therefore nondischargeable.

An order in conformity with this opinion will be entered separately.


By the Court -





Copies to:


Marcia A. Smith, Esq.

David Kersey, Esq.