Appeal from the United States District Court for the District of Columbia (95cv01455)
Before: Edwards, Chief Judge, Sentelle and Randolph, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the Court filed by Circuit Judge Randolph.
T. Carlton Richardson filed a petition for voluntary bankruptcy in 1994. Among the debts he sought to discharge were two resulting from his 1990 Maryland divorce. The divorce decree incorporated portions of a Voluntary Separation and Property Settlement Agree-ment between Richardson and Yvonne Edwards, to whom he had been married for 20 years. The parties reached their settlement after trial and after the state court orally issued its opinion, but before judgment was entered. The divorce decree (1) ordered Richardson to pay Edwards $750 per month for child support until the year 2000; and (2) incorporated the terms of the Settlement Agreement requiring Richardson to assume the second mortgage on the family home, holding Edwards harmless in the event he defaulted.
Edwards filed a complaint in the bankruptcy court seeking a determination that both of Richardson's obligations-the child support and the second mortgage assumption-were non-dischargeable debts "in the nature of alimony, maintenance or support," 11 U.S.C. Section(s) 523(a)(5)(B). The bankruptcy court agreed with Edwards and the district court affirmed. Edwards v. Richardson (In re Richardson), Ch. 7 Case No. 94-00324, Adv. No. 94-0083 (Bankr. D.D.C. June 6, 1995); Richardson v. Edwards, No. 95-1455 (D.D.C. Nov. 17, 1995). Richardson then brought this appeal.
Richardson offers two grounds for overturning the decision regarding his $750 monthly child support payments. Both grounds rely on the fact that Richardson's and Edwards' youngest child became eighteen years old, the age of majority in Maryland, see Corry v. O'Neill, 658 A.2d 1155, 1157-58 (1995); Md. Ann. Code art. I, Section(s) 24 (1996), on October 20, 1993.
Richardson's first point is that when children reach the age of majority, only they may contest the dischargeability of child support obligations; they are the intended beneficiaries of the payments and, given their age, there is no longer any custodial parent. Hence, Richardson's former wife has no "standing." There is nothing to this. The divorce decree designates Edwards as the recipient of Richardson's child support payments, including payments to be made after the children reach the age of majority. Edwards would therefore suffer injury from the discharge of Richardson's debt, and her injury is capable of being redressed through a ruling that the support payments are nondischargeable. Edwards thus fulfills the constitutional requirements for standing to sue. See Bennett v. Spear, 117 S. Ct. 1154, 1160 (1997). In contending otherwise, Richardson has confused "standing" with the requirement that suits be prosecuted in the name of the "real party in interest," see Fed. R. Bankr. P. 7017 (incorporating Fed. R. Civ. P. 17(a)), an objection we will not entertain because Richardson failed to raise it in the bankruptcy court. See Whelan v. Abell, 953 F.2d 663, 672 (D.C. Cir. 1992). Whether asserted in a motion to dismiss for failure to state a cause of action, or as an affirmative defense, see 6A Charles Alan Wright et al., Federal Practice and Procedure Section(s) 1554, at 405-09 (2d ed. 1990), see also Fed. R. Bankr. P. 7008 (incorporating Fed. R. Civ. P. 8); Fed. R. Bankr. P. 7012(b) (incorporating Fed. R. Civ. P. 12(b)), a "real party in interest" objection must be made "with reasonable promptness." 6A Wright, supra, Section(s) 1554, at 407. To wait until the case reaches the court of appeals is to waive the objection.
Richardson's second point is that his obligation to pay Edwards $750 per month until the year 2000 cannot be considered child "support" within the meaning of Section(s) 523(a)(5). According to him, these payments resulted from the property settlement between him and Edwards. Besides, under Maryland law he had no legal duty to provide child support after his youngest child reached majority in 1993. See Corry, 658 A.2d at 1157-58. There are more than a few problems with this line of thinking.
Richardson's initial error is in supposing that child "support" cannot stem from a "property settlement." The law is precisely the opposite. Section 523(a) states:
(a) A discharge under Section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an ...