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United States Court of Appeals,
Fifth Circuit.
No. 93-2695
Summary Calendar.
In the Matter of Philmore J. JOSEPH, Debtor.
Philmore J. JOSEPH, Appellant,
v.
J. HUEY O'TOOLE, P.C., Appellee.
March 14, 1994.
Appeal from the United States District Court for the Southern
District of Texas.
Before POLITZ, Chief Judge, JONES and EMILIO M. GARZA, Circuit
Judges.
POLITZ, Chief Judge:
Philmore J. Joseph appeals a judgment which declares that his
obligation to pay attorney's fees incurred by his former wife in
divorce proceedings is nondischargeable under section 523(a)(5) of
the Bankruptcy Code. Finding no error, we affirm.
Background
Retained in 1984, attorney J. Huey O'Toole represented Jean
Joseph in divorce proceedings filed in Harris County, Texas against
her husband, Dr. Philmore J. Joseph. Throughout the proceeding,
O'Toole expended significant time and effort obtaining and
enforcing a temporary support award. Mrs. Joseph, in poor health
and possessing only one year of college education, made less than
$10,000 per year painting houses. Prior to the divorce Dr. Joseph
had supported his family very comfortably on his $100,000 per year
1

salary.
In 1985 a divorce decree was rendered which ordered Dr. Joseph
to pay his former wife $3,000 a month. He also was directed to pay
all community debts and taxes. Mrs. Joseph terminated O'Toole's
services; Dr. Joseph appealed and the divorce decree was reversed
and the matter was remanded. O'Toole then intervened in the
proceeding, seeking a joint and several judgment against his former
client and Dr. Joseph for attorney's fees. At a hearing held in
1988 the court approved a divorce agreement which was very similar
to the 1985 provisions. Because the agreement did not address the
issue of O'Toole's fees, however, the court rendered a judgment
against Dr. and Mrs. Joseph for same. On appeal this judgment was
upheld.
Dr. Joseph filed a voluntary petition for bankruptcy under
Chapter 7 of the Bankruptcy Code. O'Toole sought a declaration of
nondischargeability under section 523(a)(5) of the Bankruptcy Code.
In a thorough and well-reasoned opinion, the bankruptcy court found
and held that the attorney's fee judgment formed part of an overall
economic arrangement to provide Mrs. Joseph with needed support and
therefore deemed it nondischargeable. The district court affirmed.
Dr. Joseph timely appealed.
Analysis
Section 523(a)(5) exempts from discharge any debt owed to a
former spouse or child for alimony, maintenance, or support.1
"Whether a particular obligation constitutes alimony, maintenance,
111 U.S.C. � 523(a)(5).
2

or support within the meaning of this section is a matter of
federal bankruptcy law, not state law."2 This premise proves
particularly important in states such as Texas where no permanent
alimony exists. In Texas, "support in the future can play a
significant role in the divorce court's property division and ...
what may appear to be a mere division of assets may in fact ...
contain a substantial element of alimony-substitute, support or
maintenance, however termed."3 Thus, we must place substance over
form to determine the true nature and purpose of the award,
regardless of the label used.4
At the core of Dr. Joseph's appeal lies the assumption that
only those attorney's fees directly attributable to an award of
support should escape discharge in bankruptcy. This reflects a
misapprehension of the law. An attorney's fee award granted
pursuant to a divorce decree does not elude discharge because it
tangentially relates to an award of support and maintenance;
rather, the attorney's fee award is deemed nondischargeable if the
award itself reflects a balancing of the parties' financial needs.5
Considerations such as the disparity in earning power of the
parties, their relative business opportunities, the physical
2Matter of Biggs, 907 F.2d 503, 504 (5th Cir.1990).
3In re Nunnally, 506 F.2d 1024, 1027 (5th Cir.1975); see
also Biggs; Matter of Benich, 811 F.2d 943 (5th Cir.1987).
4Biggs; Benich; Nunnally.
5Nunnally; In re Meadows, 75 B.R. 695 (Bankr.N.D.Tex.1987);
In re Bell, 61 B.R. 171 (Bankr.S.D.Tex.1986); In re Teter, 14
B.R. 434 (Bankr.N.D.Tex.1981).
3

condition of the parties, their probable future need for support,
the educational background of the parties, and the benefits they
would have received had the marriage continued, inform this
inquiry,6 as "[t]he attorney's fee is but a factor to be considered
... in making an equitable division of the estate...."7
Applying these considerations to Dr. Joseph's obligation to
pay his former wife's attorney's fees, the bankruptcy court found
that the debt was in the nature of alimony, maintenance, and
support.8 The district court affirmed. We do likewise.
AFFIRMED.

6Benich; Nunnally.
7Nunnally, 506 F.2d at 1027.
8See also In re Meadows, 75 B.R. at 699 ("an obligation to
pay attorney's fees is so intertwined with the support obligation
as to be in the nature of alimony or support and excepted from
discharge"); In re Bell, 61 B.R. at 177-78 (same); In re Teter,
14 B.R. at 437 ("attorney's award is non-dischargeable [sic] if
[it is] ... a [sic] indistinguishable part of the support
award").
4