NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 11 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: GABRIELLE ANN SODERGREN, No. 18-16944

Debtor, D.C. No. 2:18-cv-01948-HRH ______________________________

DANIEL RYCHLIK, MEMORANDUM*

Appellant,

v.

GABRIELLE ANN SODERGREN,

Appellee.

Appeal from the United States District Court for the District of Arizona H. Russel Holland, District Judge, Presiding

Argued and Submitted February 4, 2020 Phoenix, Arizona

Before: O’SCANNLAIN, GRABER, and MILLER, Circuit Judges.

Daniel Rychlik appeals from the district court’s order affirming the

bankruptcy court’s grant of summary judgment in favor of his former wife,

Gabrielle Sodergren. The bankruptcy court held that Sodergren’s debt for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. attorney’s fees and costs awarded to Rychlik in an Arizona child-custody

proceeding was subject to discharge because it was not a debt owed to a “former

spouse[] or child of the debtor . . . in the nature of alimony, maintenance, or

support.” 11 U.S.C. § 101(14A)(A)–(B). We have jurisdiction under 28 U.S.C.

§§ 158(d)(1) and 1291. We review the grant of summary judgment de novo,

considering the facts in the light most favorable to Rychlik. Suncrest Healthcare

Ctr. LLC v. Omega Healthcare Inv’rs, Inc. (In re Raintree Healthcare Corp.), 431

F.3d 685, 687 (9th Cir. 2005). We affirm.

Rychlik bears the ultimate burden of proving by a preponderance of

evidence that Sodergren’s debt is nondischargeable. See Grogan v. Garner, 498

U.S. 279, 287 (1991). Whether a particular debt is nondischargeable as a domestic

support obligation “is a factual determination made by the bankruptcy court as a

matter of federal bankruptcy law.” Chang v. Chang (In re Chang), 163 F.3d 1138,

1140 (9th Cir. 1998) (citing Friedkin v. Sternberg (In re Sternberg), 85 F.3d 1400,

1405 (9th Cir. 1996), overruled on other grounds by Murray v. Bammer (In re

Bammer), 131 F.3d 788 (9th Cir. 1997) (en banc)). Factors indicating that a debt is

for domestic support “include the presence of minor children and an imbalance in

the relative income of the parties.” Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.

1984). Another “relevant factor . . . is how the particular state law characterizes the

debt.” Chang, 163 F.3d at 1140 (citing Marks v. Catlow (In re Catlow), 663 F.2d

2 960, 962–63 (9th Cir. 1981)).

Arizona law permits a state court to award attorney’s fees and costs in a

child-custody proceeding “after considering the financial resources of both parties

and the reasonableness of the positions each party has taken throughout the

proceedings.” Ariz. Rev. Stat. § 25-324(A). Although the parties dispute whether

the state court awarded fees under section 25-324(A), viewing the record in the

light most favorable to Rychlik, we will assume that the fee award was entered

under that provision.

According to Rychlik, that fact is sufficient to satisfy his burden to show that

the fees constituted domestic support. But we have never held that fee awards

made under section 25-324(A) or similar statutes are automatically

nondischargeable under federal bankruptcy law. To be sure, in Catlow we observed

that “Arizona law considers attorney’s fees [made under section 25-324(A)] to be

spousal support if awarded in . . . post-divorce child custody proceedings.” 663

F.2d at 963. But the state-law characterization of the debt is just one factor

indicating that the debt is for “alimony, maintenance, or support” of the former

spouse for purposes of federal bankruptcy law. 11 U.S.C. § 101(14A)(A)–(B); see

Chang, 163 F.3d at 1140. And we decided Catlow before Arizona amended

section 25-324(A) to permit a state court to award fees based on the reasonableness

of the parties’ positions, not simply their financial needs. 1996 Ariz. Legis. Serv.

3 Ch. 145 (West); see Myrick v. Maloney, 333 P.3d 818, 821 (Ariz. Ct. App. 2014).

That amendment makes the statute meaningfully different from the version in

effect at the time of Catlow. See 663 F.2d at 962–63.

The bankruptcy court concluded that because Rychlik presented no evidence

that the award was based on “the financial resources and economic positions” of

the parties, the award was not in the nature of alimony, maintenance, or support of

him or their children. 11 U.S.C. § 101(14A); see Shaver, 736 F.2d at 1317

(“Support payments tend to mirror the recipient spouse’s need for support.”). We

agree.

The state court’s order contains no indication either way regarding the

parties’ financial resources, so Rychlik must rely on other evidence to show some

genuine dispute of material fact on that issue. Rychlik could have asked the

bankruptcy court to request that the state court “make specific findings concerning

the portion[] of [his] award of fees and expenses that are based on consideration of

financial resources,” Ariz. Rev. Stat. § 25-324(A), but he did not do so. Instead, he

cites the parties’ state-court briefing, which merely shows that they disputed their

relative financial resources. And it was Sodergren, not Rychlik, who first raised

their relative financial resources as a reason to mitigate any penalty assessed

against her. To be sure, the statute required the state court to consider “the

financial resources of both parties.” Id. But it did not require the state court to base

4 the fee award on those considerations, and Rychlik presents no evidence that the

state court in fact based its fee award on his financial needs. Fed. R. Civ.

P. 56(c)(1). Summary judgment was appropriate.

AFFIRMED.

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FILED

Sodergren v. Rychlik, No. 18-16944

MAR 11 2020

GRABER, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent. In my view, the bankruptcy court erred by granting

summary judgment to Gabrielle Sodergren.

It is uncertain whether the state court awarded fees "based on consideration

of financial resources" or based on "consideration of reasonableness of positions"

or both. Ariz. Rev. Stat. § 25-324(A). The parties argued both grounds for fees.

Because the state court did not explain its decision, it may have awarded fees for

either reason or in part for both reasons. Because the parties presented both

reasons in their papers, the record supports an inference that the court may have

awarded fees because of the parties’ financial resources or in part for both reasons.

Accordingly, there is a genuine issue of material fact as to the question "why did

the state court award fees?" Summary judgment is inappropriate in the face of a

genuine issue of material fact. Fed R. Civ. P. 56(a).

Daniel Rychlik sought fees based on financial resources because Sodergren

had the financial assistance of her "wealthy family," whereas Rychlik himself had

suffered a "devastating financial impact" from a bankruptcy caused by the

dissolution proceedings. Rychlik alternatively sought fees because Sodergren

earlier had tried, unreasonably in Rychlik’s view, to relocate the children to

Illinois. Rychlik had opposed that move as, in his view, not in the best interests of the children. Looking no further than the arguments made by the parties, a

reasonable factfinder could conclude that the state court more likely than not

accepted Rychlik’s "financial resources" argument but rejected his

"reasonableness" argument. The factfinder could conclude that the "financial

resources" argument was persuasive but that the "reasonableness" argument was

not.

Looking further into the record provides strong additional support for the

foregoing reasonable inference. Rychlik sought fees for the work done by his

lawyer, by a "best interests" lawyer appointed by the court, and by a psychiatrist

hired to determine questions related to the children’s best interests. The state court

awarded fees and costs only for the work done by Rychlik’s lawyer; the court

rejected fees and costs for the "best interests" lawyer and the psychiatrist. A

factfinder reasonably could infer from the state court’s rejection of the request for

fees related specifically to the "best interest" proceedings, which formed the basis

of Rychlik’s "reasonableness" argument, that the state court rested its award of fees

solely, or at least in part, on the "financial resources" prong. Indeed, this is not a

case in which a factfinder has no way to decide between equally plausible

alternatives.

The majority’s disposition notes that Sodergren initially raised the issue of

2 financial resources as a mitigating factor. But Rychlik argued in his reply that fees

were appropriate because of the parties’ relative financial resources, and the state

court plainly considered that argument. The state-court judge granted fees by

modifying, in handwritten ink, the draft order submitted by Rychlik to add that the

award of fees was pursuant to the original application and the response and the

reply.

The existence of a burden of proof on an issue does not preclude there being

a genuine issue of material fact with respect to that issue. If, as here, the record

contains sufficient evidence to allow the factfinder to conclude that the party has

carried his or her burden, then summary judgment is inappropriate. Nor does it

matter that the relevant inquiry is the subjective intent of an actor; the law

frequently requires a factfinder to ascertain a person’s mental state. So long as

evidence in the record supports a reasonable inference of the required mental state,

then summary judgment is inappropriate.

Accordingly, I respectfully dissent from the decision to affirm.

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