No.
In In re Larson-Asplund, 519 B.R. 682 (Bankr. E.D. Mich., Oct. 8, 2014), Chief Bankruptcy Judge Phillip J. Shefferly held that the Chapter 13 debtor was not judicially estopped from asserting that his obligation, under the terms of a consent judgment entered in the debtor’s earlier divorce case, to pay one-half of his children’s college expenses was not in the nature of a support obligation, although the debtor had claimed during the state-court proceedings that the obligation was in the nature of support, where the debtor was unsuccessful in the state-court proceedings. Judicial estoppel applies only where the prior court adopted the debtor’s contrary position.
Under In re Sorah, 163 F.3d 397 (6th Cir. 1998), a bankruptcy court, in determining whether a debtor’s obligation is in the nature of support, is to look to traditional state law indicia that are consistent with support obligations. These include, but are not limited to, (1) a label such as alimony, support, or maintenance in the decree or agreement; (2) a direct payment to the former spouse, as opposed to the assumption of a third-party debt; and (3) payments that are contingent upon such events as death, remarriage, or eligibility for Social Security benefits. An award that is designated as support by the state court and has these indicia of support should be conclusively presumed to be a support obligation by the bankruptcy court. These factors continue to apply under BAPCPA. In re Rugiero, 502 Fed. Appx. 436 (6th Cir. 2012).
The debtor’s obligation, under the terms of a consent judgment entered in the debtor’s earlier divorce case, to pay one-half of his children’s college expenses was not in the nature of a child support obligation, as the provision establishing the debtor’s obligation in the consent judgment did not bear all three of the traditional state law indicia of support set forth in In re Sorah, 163 F.3d 397 (6th Cir. 1998). Moreover, a review of the evidence beyond the three traditional state law indicia confirmed that the debtor’s obligation was not in the nature of support.
(case no. 2:14-bk-44240)