
    In the Matter of Charles Howard SHEFFIELD, Debtor. Charles Howard SHEFFIELD, Plaintiff, v. Barbara Lee SHEFFIELD, Defendant.
    Bankruptcy No. 82-03333A.
    Adv. No. 82-2271A.
    United States Bankruptcy Court, N.D. Georgia.
    Feb. 17, 1983.
    William G. Posey, Douglasville, Ga., for plaintiff.
    Harry W. Krumenauer, Marietta, Ga., for defendant.
   MEMORANDUM OF OPINION

A.D.' KAHN, Bankruptcy Judge.

The parties have agreed that the sole question before the court is whether a child support arrearage can be discharged under the Bankruptcy Code.

The facts apparent from the record are as follows: The parties’ marriage ended in divorce. The final judgment and decree directed Plaintiff, the Debtor herein, to pay child support to his spouse, Defendant herein. Ultimately the Defendant filed a contempt action in the Superior Court of Cobb County in 1979, to collect an arrearage of child support. After an evidentiary hearing the Superior Court found that Plaintiff was in wilful contempt of court for failure to pay child support as previously ordered, and determined that Plaintiff was “in arrears in the amount of $8,400.00.” The order as subsequently amended stated:

The Defendant [Plaintiff herein] may purge himself of this contempt by paying to the Plaintiff [Defendant herein] the sum of $15.00 per week, as child support for the minor child, plus the sum of $20.00 per week to be applied towards this arrearage, totalling $35.00 weekly, commencing Friday, May 25, 1979 and continuing until the child is age 21 years, married or self-supporting, and the ar-rearage is paid in full.

It appears that Plaintiff ceased payment of the arrearage as ordered by the court. Defendant instituted a garnishment action in March of 1982, and a judgment was entered against the Plaintiff for $7,112.30.

Plaintiff-Debtor instituted the instant action, alleging that Defendant claims a large arrearage of over $7,000.00; that Defendant garnished the wages of the Plaintiff; that none of the garnished funds are used in any way for support of the children, and are used solely for the wife for repayment of a debt claimed; that the children have no need for support from their father; that the claim is made by the mother individually and not as Trustee for the minor children; and, that the Defendant’s claim is a debt to her and dischargeable in bankruptcy, and is not for the support of minor children.

The question is whether the child support arrearage in the instant case is dischargea-ble in bankruptcy. The Bankruptcy Code mandates that the debt be discharged unless it is:

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

11 U.S.C. § 523(a)(5).

It is not disputed, and indeed it is readily apparent from the Superior Court order and the pleadings filed in this court, that the arrearage represents a liability that is actually in the nature of child support. Without further analysis, the court could conclude that the debt should be excepted from discharge.

Plaintiff relied, however, on case law beginning with Warner v. Warner (In re Warner), 5 B.R. 434 (Bkrtcy.D.Utah 1980), which ultimately held that in order for a child support debt to be nondischargeable, evidence of financial need should be considered, and there should be shown a present need by the spouse and children that the debt be paid.

Such a conclusion is contrary to the Bankruptcy Code. The court is unaware of any situation in which the dischargeability of a debt has been determined by considering the financial needs of the parties disputing the dischargeability of the debt. The passage of time should not render a nondischargeable debt dischargeable. Otherwise it would be possible for parents to ultimately escape their support obligations. This court is in agreement with the reasoning in Benz v. Nelson (In re Nelson) 20 B.R. 1008, 1011, 1012 (D.C.M.D.Tenn.1982), which reversed a lower court following Warner, supra:

By creating an exception to the general rule of discharge, Congress, implicitly, resolved the balancing of the very interest considered by the court below in favor of the spouse. Congress did not, in any manner, manifest an intention that the bankruptcy courts should embark upon their own balancing of these policies, [footnote omitted] Under section 523(a)(5), the bankruptcy courts are free to determine whether a debt characterized by a state court as alimony, support, or maintenance is in fact just that. Upon finding that a debt is in fact support, alimony, or maintenance, however, the bankruptcy court is not free to discharge the debt. Section 523(a)(5) states clearly that such debts are not to be discharged. Consequently, upon finding the debt to be maintenance, support, or alimony in fact, the bankruptcy court below should have excepted that portion of the debt from discharge ....

Finally, Plaintiff-Debtor’s reliance on In re Trichon, 11 B.R. 658 (Bkrtcy.S.D.N.Y.1981), for the proposition that child support benefits assigned to a state welfare agency are dischargeable, is misplaced. The Bankruptcy Code has since been amended to except from dischargeability debts assigned “pursuant to section 402(a)(26) of the Social Security Act. [42 U.S.C.S. § 602(a)(26) ].” 11 U.S.C. § 523(a)(5)(A) (1982).

For the foregoing reasons, the court concludes that the subject debt is nondis-ehargeable.

An appropriate order is entered contemporaneously herewith. 
      
      . Sheffield v. Sheffield, Civil Action File No. 21477 (Super.Ct. Cobb County Ga. May 29, 1979) (Order).
     
      
      . Id. (June 11, 1979) (Order).
     