IN RE GONTERMAN

LARRY LESSEN, Bankruptcy Judge

This matter has come before the Court on the Plaintiff's Motion for Summary Judgment.

On November 17, 2003, Robert D. Gonterman ("Defendant") filed his voluntary petition in bankruptcy pursuant to Chapter 7. On February 13, 2004, Jacqueline Peterman ("Plaintiff") filed her adversary complaint objecting to the dischargeability of certain debts pursuant to 11 U.S.C. § 523(a) (2) (A) and 11 U.S.C. § 523(a) (5).

Plaintiff and Defendant were married on December 28, 1985. On December 21, 2001, a Judgment for Dissolution of Marriage was entered dissolving their marriage. The Judgment provides, in relevant part, as follows ("Petitioner" is Plaintiff herein; "Respondent" is Defendant herein):

Maintenance

12. Petitioner and Respondent hereby waive any right to maintenance, whether past, present or future, from each other, except as is expressly set forth in paragraph 18 through 21 of this Judgment.

* * * *

Marital Indebtedness

18. Petitioner and Respondent shall be responsible for payment of one-half of the VISA credit card indebtedness in the approximate amount of $15,000 and each shall hold harmless and indemnify each other for their obligation with respect to this debt, including the payment of any reasonable attorneys' fees arising from enforcement of this Judgment for any breach of this paragraph. Each party shall within ninety (90) days of this entry of this Judgment refinance their individual one-half portion of that debt. The payment of each party's one-half portion of the above indebtedness is lieu (sic) of each party's legal obligation to support and maintain each other, and is in lieu of maintenance from one another.

18a). Respondent shall be solely responsible for the indebtedness due and owing to Best Buy (HRS), and he shall hold harmless and indemnify the Petitioner from any and all liability thereon.

19. The obligations of the parties with respect to the repayment of debt as described above are a form of financial support which each makes to the other. Those payments shall be considered lump sum maintenance which each makes to and for the other. Upon the satisfaction by each party of the debt repayment obligations as provided above, the obligation of that party to pay maintenance to the other shall come to an end.

20. Petitioner and Respondent shall save and hereby hold harmless and indemnify each other from any debt or indebtedness incurred by either party after the parties' separation.

21. Petitioner and Respondent each agree that with regard to each credit card account currently open, they shall not incur any additional charges hereafter; they shall immediately deliver to the other party all credit cards and/or credit card numbers which are issued solely in the other party's name; they shall immediately destroy all credit cards which were jointly issued in the names of the parties; and they shall pay and discharge upon demand all charges made subsequent hereto by both parties on any account in the other party's name.

In her Motion for Summary Judgment, Plaintiff contends that, as a matter of law, the obligations set forth above are nondischargeable maintenance obligations under 11 U.S.C. § 523(a)(5). Plaintiff further contends that, subsequent to the entry of the Judgment for Dissolution, Defendant continued to utilize a joint Best Buy (HRS) credit card and accumulated debt which is nondischargeable under 11 U.S.C. § 523(a) (2) (A).

Defendant concedes that any indebtedness incurred by him on the joint Best Buy (HRS) credit card after the entry of the Judgment for Dissolution is nondischargeable. Accordingly, the only remaining issue is the purported maintenance obligations set forth above, which the parties seem to indicate is limited at this point in time to Defendant's portion of the VISA bill.

In order to prevail on a motion for summary judgment, Plaintiff must meet the statutory criteria set forth in Rule 56 of the Federal Rules of Civil Procedure, made applicable to adversary proceedings by Federal Rule of Bankruptcy Procedure 7056. Rule 56(c) states in part as follows:

[T]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). See also Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 402 (7^th Cir. 1998). The primary purpose for granting a summary judgment motion is to avoid unnecessary trials when there is no genuine issue of material fact in dispute.Trautvetter v. Ouick, 916 F.2d 1140, 1147 (7^th Cir. 1990). The burden is on the moving party to show that no genuine issue of material fact is in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All reasonable inference drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion. Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1032 (7^th Cir. 1998). "Summary judgment is not an appropriate occasion for weighing the evidence; rather the inquiry is limited to determining if there is a genuine issue for trial." Lohorn v. Michal, 913 F.2d 327, 331 (7^th Cir. 1990).

Section 523(a)(5) provides in relevant part as follows:

(a) A discharge under section 727 . . . 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, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement. . . .

11 U.S.C. § 523(a) (5).

A debt owed to a former spouse or a debt to be paid to a third party in the nature of alimony, maintenance, or support pursuant to a divorce decree is nondischargeable in bankruptcy under 11 U.S.C. § 523(a)(5). See In re Coil, 680 F.2d 1170, 1171 (7^th Cir. 1982); In re Maitlen, 658 F.2d 466, 468 (7^th Cir. 1981); In re Bradaric, 142 B.R. 267, 269 (Bankr. N.D. Ill. 1992). Obligations that arise as part of the division of marital property, however, are dischargeable under that section. Coil, supra, 680 F.2d at 1171.

The determination of whether a debt is in the nature of alimony, maintenance, or support is a matter of federal bankruptcy law rather than state law. In re Haas, 129 B.R. 531, 536 (Bankr. N.D. Ill. 1989); In re Seidel, 48 B.R. 371, 373 (Bankr. C.D. Ill. 1984). In making this determination, the Court must look to the substance of the obligation and not to labels imposed by state law. See Maitlen, supra, 658 F.2d at 468; In re Cockhill, 72 B.R. 339, 341 (Bankr. N.D. Ill. 1987). The critical and principal inquiry is whether the intent of the divorce court and the parties was to provide support or divide marital property and debts. In re Wright, 184 B.R. 318, 321 (Bankr. N.D. Ill. 1995).

The Plaintiff's burden at the summary judgment stage of these proceedings is an extremely heavy one. Evidently, the divorce court proceedings do not contain a record which establishes the rationale with which and the extent to which the divorce court concluded that certain obligations were (or were not) in the nature of alimony, maintenance, or support. The record before this Court is also devoid of a declaration by the non-movant as to that person's thoughts relative to the obligation being in the nature of maintenance and/or support or merely a division of property. The difficulty for a movant in the context of a motion for summary judgment is evident when one considers that, without those things, intent of the divorce court and intent of the non-movant can only then be established inferentially from circumstantial evidence. But the Court is required, on a motion for summary judgment, to draw all reasonable inferences from the evidence in favor of the non-moving party. Summary judgment is inappropriate if inferences are necessary for the judgment and those inferences are not mandated by the record. In re Varrasso, 37 F.3d 760, 763 (1^st Cir. 1994).

In this case, the Judgment for Dissolution of Marriage states that the obligations are "considered lump sum maintenance". However, most experienced divorce attorneys, when drafting divorce documents, know that it is generally in their clients' best interest to have any marital obligation owing to them characterized as a support or maintenance obligation, whether or not it truly is such, thereby helping to ensure its nondischargeability in a bankruptcy context. The Bankruptcy Code requires the Bankruptcy Court to look behind the label, and that inquiry is necessarily fact-driven. Accordingly, there are material questions of fact which preclude summary judgment in this case.

This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure.

See written Order.