FILED
NOT FOR PUBLICATION
FEB 22 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: MATTHEW BANKS ASHWORTH, No. 14-60005
Debtor, BAP No. 12-1591
MATTHEW BANKS ASHWORTH, MEMORANDUM*
Appellant,
v.
KATHRYN EHRGOTT; AMRANE
COHEN, Chapter 13 Trustee,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Dunn, and Taylor, Bankruptcy Judges, Presiding
Argued and Submitted February 9, 2016
Pasadena, California
Before: FARRIS, CLIFTON, and BEA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Matthew Ashworth filed for bankruptcy in 2011. His ex-wife, Kathryn
Ehrgott, filed a priority claim for the remaining balance that Ashworth owed her
from the settlement they entered into at the time of their divorce. Ashworth
objected to the priority status of the claim. The bankruptcy court found that the
settlement was a domestic support obligation and was entitled to priority status.
See 11 U.S.C. §§ 101(14A), 507(a)(1)(A). Ashworth appealed to the Bankruptcy
Appellate Panel, which affirmed the bankruptcy court’s decision. Ashworth now
appeals to this Court. We have jurisdiction under 28 U.S.C. § 158(d)(1). We
affirm.
We review the bankruptcy court’s findings of fact for clear error. Comer v.
Comer (In re Comer), 723 F.2d 737, 739 (9th Cir. 1984). We review questions of
law de novo. Id.
The bankruptcy court correctly applied the controlling Ninth Circuit
precedent of 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, 792 (9th Cir. 1997) (en banc). Ashworth’s arguments that Sternberg has
been superseded, or that this Court should reconsider Sternberg en banc, are
unconvincing.
2
Under Sternberg, the dispositive factor in determining whether a settlement
is a domestic support obligation is the intent of the parties at the time of settlement.
Id. The “[f]oremost” factor that a court looks at to determine intent is whether the
spouse receiving the settlement was in need of support at the time of the divorce.
Id. In making this assessment, the court should consider the “‘imbalance in the
relative income’” of the two spouses. Id. (quoting Shaver v. Shaver, 736 F.2d
1314, 1316 (9th Cir. 1984)). The court should also consider: (1) whether the
settlement is paid directly to the receiving spouse, in installments, over a lengthy
period of time; (2) whether the payments terminate on the death or remarriage of
the receiving spouse; and (3) the labels the parties themselves attach to the
payments. Id.
On this record, we cannot hold that the bankruptcy court clearly erred in
finding that the parties intended for the settlement to be domestic support. Ehrgott
needed support. There was imbalance in the relative incomes of Ehrgott and
Ashworth. The other Sternberg factors, though mixed, also suggest that the
settlement was intended to be support.
AFFIRMED.
3