COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69994 : ACCELERATED DOCKET GLORIA J. TOTH : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : THOMAS J. TOTH : PER CURIAM : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 12, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Rocky River Municipal Court Case No. 95-CVH-0817 JUDGMENT: Dismissed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: RITA M. JARRETT, ESQ. WILSON A. LEECE, II., ESQ. THOMAS A. KONDZER, ESQ. 9840 Lorain Avenue Kolick & Kondzer, Ste. 175 Cleveland, Ohio 44102 24500 Center Ridge Road Westlake, Ohio 44145 -2- PER CURIAM: Defendant-appellant, Thomas J. Toth, appealed the decision allowing the garnishment of his bank accounts to satisfy a judgment in favor of plaintiff-appellee, Gloria J. Toth. Plaintiff- appellee, Gloria J. Toth, filed a motion to dismiss the appeal. At the oral argument, this Court heard arguments from both sides and afforded defendant-appellant, Thomas J. Toth, an opportunity to respond to Gloria Toth's motion to dismiss the appeal. This entry dismisses the appeal. Gloria J. Toth was awarded a judgment of $5,685.85 in attorney fees incurred in filing post-decree motions and this court affirmed the decision. Toth v. Toth (Aug. 24, 1995), Cuyahoga App. No. 68341, unreported. Gloria Toth had the judgment transferred to Rocky River Municipal Court and ordered Garnishment of Thomas Toth's bank accounts. He objected to the Garnishment, but presented no evidence at the hearing to support his claim that the account was an IRA and reasonably necessary for his support. Thomas Toth's bank account was garnished. Gloria Toth filed a Title 7, U.S. Code bankruptcy and a bankruptcy stay was filed in this court. The bankruptcy court granted Thomas Toth relief from the stay to proceed with hearing of this appeal. The bankruptcy court subsequently discharged Gloria Toth's debts as follows: 2. ANY JUDGMENT HERETOFORE OR HEREAFTER OBTAINED IN ANY COURT OTHER THAN THIS COURT IS NULL AND VOID AS A DETERMINATION OF THE PERSONAL LIABILITY OF THE DEBTOR WITH RESPECT TO ANY OF THE FOLLOWING: -3- (a) DEBTS DISCHARGEABLE UNDER 11 U.S.C. 523; (b) UNLESS HERETOFORE OR HEREAFTER DETERMINED BY ORDER OF THIS COURT TO BE NONDISCHARGEABLE, DEBTS ALLEGED TO BE EXCEPTED FROM DISCHARGE UNDER CLAUSES (2), (4), (6), AND (15) OF 11 U.S.C. 523(a); (c) DEBTS DETERMINED BY THIS COURT TO BE DIS- CHARGED." Gloria Toth moved to dismiss the appeal on the basis that liability under this action was discharged by the bankruptcy judgment. Thus, the threshold issue in the case is whether any potential debt arising out of this action was discharged by the bankruptcy proceeding. "***[T]here is an automatic discharge with respect to those claims in Sections 523(a)(2),(4), and (6), unless a creditor files a complaint to determine dischargeability with the bankruptcy court. However, this provision does not apply to debts classified under Section 523(a)(5) (support obligations). In such instances, state courts have concurrent jurisdiction with bankruptcy courts to determine the dischargeability of an alleged support obligation." Pearl v. Pearl (1990), 69 Ohio App.3d 173, 177 (held mortgage payments in the nature of spousal support and not dischargeable). See, also, Ballinger v. Ballinger (Nov. 13, 1995), Madison App.No. CA95-05-015, unreported (held debts were in the nature of spousal support when assumed in lieu of paying spousal support and therefore, not dischargeable); Snyder v. Snyder (June 23, 1995), Ashtabula App.No. 94-A-0063, unreported (held assumption of credit card debt was dischargeable); Conley v. Conley (Apr. 17, 1991), -4- Summit App.No. 14798, unreported (claim precluded where the parties stipulated to which debts were dischargeable). In this case, the bankruptcy court did not decide the status of the garnishment action. They specifically granted Thomas Toth relief from the stay and did not address the issue in their discharge judgment entry. Therefore, this court has jurisdiction to determine whether the potential debt from the garnishment was discharged by the bankruptcy action. Section 523(a)(5), Title 11, U.S.Code provides: "(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, 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***." Therefore, dischargeability in this case depends upon whether the money subject to garnishment represented a support obligation. While Ohio courts treat attorney fees as alimony, see R.C. 3105.18(H), the test for purposes of bankruptcy is more limited. In In re Calhoun (C.A. 6, 1983), 715 F.2d 1103, the court set forth a three-part test for determining whether a debt is in the nature of support as follows: (1) The debt must have been intended for -5- support, (2) the debt must have the effect of providing support necessary to take care of the former spouse's daily needs, and (3) the court must consider whether assumption of the amount of money at issue is "manifestly unreasonable under traditional concepts of support." The money subject to garnishment in this case did represent spousal support insofar as attorney fees are treated as such under the provisions of R.C. 3105.18. Nonetheless, the money had absolutely nothing to do with taking care of Gloria Toth's daily needs. Therefore, any potential debt of Gloria Toth arising out of this action was discharged in Gloria Toth's bankruptcy action. Thomas Toth argues Gloria Toth's bankruptcy discharged her debt for attorney fees in the amount of $10,000, and therefore, the motion to dismiss should be denied and the money subject to garnishment should be returned to him. We disagree. Among the debts discharged were legal services rendered in 1996 in the amount of $10,000, from her attorney, Thomas Kondzer. However, this court has held a "[h]usband's obligation to pay his former wife, as type of additional alimony ordered by divorce court, a portion of attorney fees that wife incurred in connection with their divorce was separate and apart from wife's own contractual obligations to divorce counsel, and was not affected, under common-law principles of contribution, by discharge of wife's attorney fee obligation in bankruptcy." Mallin v. Mallin (1995), 102 Ohio App.3d 717 at paragraph one of the syllabus. Thus, the discharge of Gloria Toth's debt to her attorneys is separate and -6- apart from Thomas Toth's obligation to pay attorney fees as support. Accordingly, Thomas Toth's argument has no merit. Appeal dismissed. -7- This cause is dismissed. It is ordered that appellee recover of appellant her costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATRICIA ANN BLACKMON, PRESIDING J. DAVID T. MATIA, JUDGE DIANE KARPINSKI, JUDGE CONCURS IN JUDGMENT ONLY. "N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .