25 Collier Bankr.cas.2d 1501, Bankr. L. Rep. P 74,358in the Matter of David A. Davidson, Debtor.nancy Y. Davidson, Appellant, v. David A. Davidson, Appellee, 947 F.2d 1294 (5th Cir. 1991)

Nancy and David Davidson were married in 1977; they had no children and lived modestly for several years. In the last years of their marriage (1980-82), Mr. Davidson's income as a real estate broker increased dramatically, and the couple's manner of living became more extravagant. Mrs. Davidson, who had no college degree, worked for a while as a secretary for her husband. In 1982 the couple decided to divorce.

In 1983, the Davidsons signed a Marriage Settlement Agreement ("agreement"), which provided both for a division of marital property and periodic payments unsecured by, and unconnected to, any marital property. The relevant provisions are set forth below:

SUPPORT OF SPOUSE

8.01 Periodic Payments.

A. Amount. Husband contracts and agrees to pay with [sic] Wife, for her support and maintenance, periodic payments as follows:

1. The sum of $1,583 each and every month beginning on the 1st day of May, 1983 and continuing for one hundred twenty (120) subsequent months, payable on the first day of each month thereafter, for a total period of 121 months;

2. The sum of $6,149 each and every month beginning on the 1st day of May, 1983, and continuing for one hundred twenty (120) subsequent months, payable on the first day of each month thereafter, for a total period of 121 months;

....

B. Termination and Reduction. The payments provided in Paragraphs 1 and 2 above shall continue until terminated in accordance with the earlier occurence [sic] of the following events: (1) death of Wife or (2) after the 121st payment.

Other portions of the agreement provided for periodic payments representing Mrs. Davidson's share in certain joint real estate ventures. These payments may be easily distinguished from the periodic maintenance, or alimony, payments because they terminated after twelve months and were to be reduced by any proceeds received by Mrs. Davidson from the sale of any part of the real estate ventures.

The agreement further provided that the payments would be taxable as income to Mrs. Davidson and deductible as to Mr. Davidson, that the payments would continue if Mr. Davidson died, and that the intent of the parties was that the payments be in the nature of support, not property settlement.¹ 

Mr. Davidson deducted all the payments he made under article 8.01(A) (1) and (2) for the years 1983 through 1986. Mrs. Davidson reported them as income for the same years. After Mr. Davidson stopped making payments, Mrs. Davidson filed a state lawsuit to enforce the terms of their divorce, which she won on summary judgment. Mr. Davidson subsequently filed for Chapter 7 bankruptcy relief.

The bankruptcy court determined that the parties had intended the periodic payments to be in the nature of a property settlement, rather than alimony. 104 B.R. 788. The court therefore held that all the periodic payment debt was dischargeable in bankruptcy.²  The district court upheld that decision on appeal, holding that these payments represented a division of marital property, which can be discharged.³ 

The bankruptcy court further held that Mr. Davidson was not barred by the doctrine of equitable estoppel from asserting that the payments were not alimony. The district court agreed. Finally, the district court denied Mrs. Davidson her attorneys' fees for bringing the unsuccessful appeal. Mrs. Davidson now appeals the district court's determination.

As a matter of law, we review de novo the district court's conclusion that Mr. Davidson is not estopped from claiming that the payments to Mrs. Davidson were not alimony. Byram v. United States, 705 F.2d 1418, 1421 (5th Cir. 1983).⁴  Title 11 U.S.C. § 523(a) (5) forbids the discharge in bankruptcy of debts

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 property settlement agreement, but not to the extent that

. . . . .

(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support....

A division of marital property in payments over time will not be declared nondischargeable in bankruptcy merely because the parties have labeled it "alimony." Rather, the bankruptcy court evaluates the intent of the parties at the time they established the alimony/division agreement. Benich, 811 F.2d at 945; Smith v. Billingsley (In re Billingsley), 93 B.R. 476, 477 (Bankr.N.D. Tex. 1987).

Our holding in Benich, however, does not negate operation of the doctrine of estoppel. We reverse the district court and hold that Mr. Davidson is estopped from claiming that his payment obligations to Mrs. Davidson are not in the nature of alimony when he has treated the payments as alimony for tax purposes.

We are aware of only one bankruptcy court case with identical tax issues. See Semrow v. Robinson (In re Robinson), 122 B.R. 502 (Bankr.W.D. Tex. 1990). As in this case, the periodic payments were set up to take advantage of the tax deductions; they would last only 120 months--the minimum length of deductible alimony payments under the tax code. Mr. Robinson, like Mr. Davidson, maintained the characterization of the payments as alimony and deducted them from his taxes until he declared bankruptcy. The bankruptcy court held that Mr. Robinson "should be estopped from now asserting these payments were mere property settlements, based upon his own characterization of the payments as alimony in his tax returns." Id. at 506. We agree.

One form of estoppel, "quasi estoppel," forbids a party from accepting the benefits of a transaction or statute and then subsequently taking an inconsistent position to avoid the corresponding obligations or effects. See Kaneb Servs., Inc. v. FSLIC, 650 F.2d 78, 81 (5th Cir. Unit A July 1981) (citing FPC v. Colorado Interstate Gas Co., 348 U.S. 492, 75 S. Ct. 467, 99 L. Ed. 583 (1955)); see also Neiman-Marcus Group, Inc. v. Dworkin, 919 F.2d 368, 371 (5th Cir. 1990) (explaining Texas law of quasi estoppel). Mr. Davidson has accepted the benefits of his agreement: He has taken tax deductions for the payments to Mrs. Davidson. He now tries to escape the bankruptcy effects of his election to treat the payments as alimony.

Although detrimental reliance is not a necessary element of quasi estoppel, we find that the existence of detrimental reliance in this case is an important factor disfavoring Mr. Davidson's position. Mrs. Davidson detrimentally relied upon the characterization of the payments as alimony. Indeed, the settlement agreement specifically provided that Mr. Davidson's intention to provide support to Mrs. Davidson was an "essential" element of consideration for the agreement.⁵  Mrs. Davidson claimed the payments as income and paid the appropriate taxes in accordance with the settlement agreement.

To allow a spouse to set up an intricate and unambiguous divorce settlement, carefully distinguishing certain periodic payments, called alimony, from the division of marital property, and consistently taking advantage of this characterization for tax purposes, only then to declare that the payments truly represented a division of property, would be a legal affront to both the bankruptcy and tax codes. To uphold the discharge of those payments in bankruptcy would reward an admitted manipulation tantamount, at best, to deception. That Mr. Davidson did not know he would go broke when he agreed to the divorce settlement is not an uncommon scenario, but offers him no excuse for discharging the payments he chose to characterize as alimony.⁶ 

The settlement agreement provided for the payment of attorneys' fees:

10.3. Fees and Expenses for Default. In the event a party hereto defaults in performing any obligation under this Agreement requiring the other party to engage the services of an attorney to seek enforcement or relief, or enforcement is sought through the Probate Court, bankruptcy, receivership or any other judicial proceedings, then the defaulting party shall pay all reasonable attorney's fees, expenses and costs incurred.

Recently we have held that where a party has contracted to pay attorneys' fees for the collection of a nondischargeable debt, the fees also will not be discharged in bankruptcy. Jordan v. Southeast Nat'l Bank (In re Jordan), 927 F.2d 221, 226-28 (5th Cir. 1991). See also Bell v. Bell (In re Bell), 61 B.R. 171, 177-78 (Bankr.S.D. Tex. 1986) (fees to collect alimony are nondischargeable because they are so intertwined with the obligation of support as to be in the nature of alimony); Teter v. Teter (In re Teter), 14 B.R. 434, 437 (Bankr.N.D. Tex. 1981) (same). Mrs. Davidson should receive reasonable attorneys' fees, and we remand for determination of the fee amount.

Accordingly, the judgment is REVERSED and REMANDED for further proceedings consistent herewith.