MEMORANDUM OPINION

ROBERT H. JACOBVITZ, Bankruptcy Judge.

THIS MATTER is before the Court on cross-motions for summary judgment.1 The primary focus of this adversary proceeding is whether certain debt that arose in connection with divorce proceedings between the parties is a non-dischargeable domestic support obligation or a non-dischargeable property settlement.2 Whether the debt is a non-dischargeable domestic support obligation under 11 U.S.C. § 523(a)(5) rather than a non-dischargeable property settlement under 11 U.S.C. § 523(a)(15) is significant because it will determine whether the debt is entitled to treatment as a priority claim under 11 U.S.C. § 507(a) in Defendant's Chapter 11 bankruptcy case.

Defendant concedes that the debt is non-dischargeable under 11 U.S.C. § 523(a)(15), but asserts that the debt is not in the nature of support as a matter of law and requests the Court to enter summary judgment determining that the debt does not fall under 11 U.S.C. § 523(a)(5). Plaintiff asserts that because she will, in fact, use the money represented by the debt in this adversary proceeding to cover her living expenses, the obligation functions as support. Plaintiff requests the Court to grant summary judgment finding that the debt constitutes a non-dischargeable domestic support obligation under 11 U.S.C. § 523(a)(5).

After considering Defendant's Motion for Summary Judgment, Plaintiff's Response to Motion for Summary Judgment and Cross Motion for Summary Judgment (Docket No. 6), and Defendants' Response to Plaintiff's Cross Motion for Summary Judgment, the Affidavit of Kenneth Daryle Rodriguez, and the Affidavit of Denise Comstock, the Court finds that there exist genuine issues of material fact regarding the intent of the parties at the time of the divorce and the purpose the debt was intended to serve. These genuine issues of fact prevent the Court from granting summary judgment in favor of either party.

SUMMARY JUDGMENT STANDARDS

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c), made applicable to adversary proceedings by Fed.R.Bankr.P. 7056. In considering a motion for summary judgment, the Court must "`examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.'" Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.1995) (quoting Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990)). Cross motions for summary judgment raise an inference that summary judgment may be appropriate. In re Baines, 337 B.R. 392, 396 (Bankr. D.N.M.2006). Nevertheless, before a Court may grant summary judgment, the Court must satisfy itself that the requesting party has independently satisfied the requirements of Rule 56(c). See Harris v. Beneficial Oklahoma, Inc., (In re Harris), 209 B.R. 990, 998 (10th Cir. BA 1997); see also, Renfro v. City of Emporia, 948 F.2d 1529, 1534 (10th Cir.1991) (stating that a cross motion for summary judgment does not relieve the court of its obligation to determine if a genuine issue of material fact exists). "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial" through affidavits or other supporting evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

DISCUSSION

A. Plaintiff's Cross Motion for Summary Judgment Raises Factual Allegations not Pleaded in the Original Complaint

Plaintiff filed a Complaint to Determine Dischargeability of Debt ("Complaint") on December 13, 2010. The Complaint alleges, among other things, that: 1) the parties have participated in contentious divorce proceedings in the Second Judicial District Court for the State of New Mexico for the past six years; 2) the state court found Defendant in contempt of court and entered a judgment against Defendant on July 12, 2010 in the amount of $50,454.75, plus interest ("Judgment") based on Defendant's use of funds in a joint retirement account to the detriment of Plaintiff; 3) Plaintiff incurred costs and attorneys' fees in defending her right to receive funds from Defendant; and 4) "[a]ll obligations running from Defendant to Plaintiff related in any way to their divorce are not dischargeable" in Defendant's bankruptcy proceeding under 11 U.S.C. § 523(a)(5) and (a)(15). See Complaint, ¶¶ 6, 7, 8, 12, and 13. Defendant filed a voluntary petition under Chapter 11 of the Bankruptcy Code on September 13, 2010.

Plaintiff's Cross-Motion for Summary Judgment asserts that there are four components to her claim: 1) the unpaid amount currently owed under the Judgment in the amount of $53,488.74; 2) an award of alimony in the amount of $2,632.00; 3) tuition for private school owed by Defendant directly to the Albuquerque Academy in the approximate current amount of $20,000.00; and 4) attorney's fees incurred in establishing and attempting to collect the first three components. See Plaintiff's Cross-Motion for Summary Judgment, p. 2, ¶ 1. Plaintiff did not include specific factual allegations concerning the award of alimony and the debt for tuition in her Complaint, nor did Plaintiff file a motion to amend the Complaint to include these additional components of her claim. In considering a motion for summary judgment, the Court "may evaluate the pleadings both in terms of their content at the time of their submission and as they might be amended at some later date." 10A Wright, Miller and Kane, Federal Practice and Procedure, § 2722 at 368 (1998).3 Defendant concedes that the award of alimony constitutes a domestic support obligation, but points out that the state court did not award this debt until after Plaintiff filed the Complaint.4 There is insufficient factual evidence before the Court from which to evaluate the nature of the debt representing tuition at the Albuquerque Academy. Consequently, summary judgment as to the award of alimony and tuition components of Plaintiff's claim is not appropriate. The Court will give Plaintiff an opportunity to amend the Complaint to add these additional components to her non-dischargeability claim.

B. Defendant's Documentary Evidence Offered in Support of Summary Judgment Is Not Properly Authenticated

In support of Defendant's Motion for Summary Judgment, Defendant submitted copies of the Partial Marital Settlement Agreement ("MSA"), the Final Decree of Dissolution of Marriage with Reservation of Jurisdiction ("Final Decree"), an Order entered in the parties' state court action on December 21, 2009 determining that Defendant cashed in various retirement accounts that were owned one-half by Plaintiff, Findings of Fact and Conclusions of Law entered by the state court in the parties' state court action on July 19, 2007, and Alimony Guidelines and Commentaries (Revised) issued by the Statewide Alimony Guideline Committee.5 Only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.6 Documentary evidence supporting summary judgment must be properly authenticated.7 The Court may not consider documents not sworn or certified or otherwise authenticated as required by Fed.R.Civ.P. 56(e).8 To be admissible, documents must be self authenticating, or authenticated by a sufficient affidavit or by other means satisfying the requirements of Rule 56(e).9 The exhibits offered in support of Defendant's Motion for Summary Judgment fail to meet these requirements.

The MSA, Final Decree, Order and Findings of Fact and Conclusions of Law attached to Defendant's Motion for Summary Judgment are not certified copies. Nor were the documents from the state court action between the parties nor the Alimony and Guidelines otherwise authenticated by an affidavit meeting the requirements of Rule 56(e). Plaintiff did not admit or rely on these documents in her Cross-Motion for Summary Judgment. To the contrary, Plaintiff's Cross-Motion for Summary Judgment asserts that Defendant failed to properly support his allegations of undisputed material fact in violation of Fed.R.Civ.P. 56. Consequently, the Court cannot consider these documents in ruling on Defendant's Motion for Summary Judgment.

C. Genuine Issues of Material Fact Preclude Summary Judgment as to Whether the Debt Constitutes a Non-Dischargeable Domestic Support Obligation under 11 U.S.C. § 523(a)(5)

Debts that constitute domestic support obligations10 are not dischargeable in bankruptcy. See 11 U.S.C. § 523(a)(5). Although the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") changed the language in 11 U.S.C. § 523(a)(5) to apply to "domestic support obligations" as defined in 11 U.S.C. § 101(14A), this change "did not change the standard for whether an obligation is in the nature of support." Phegley v. Phegley (In re Phegley), 443 B.R. 154, 157 (8th Cir. BAP 2011) (citation omitted).11 It is, therefore, appropriate to continue to apply the same test for determining whether a debt is in the nature of support that was applicable under 11 U.S.C. § 523(a)(5) prior to the enactment of BAPCPA.12

Whether a debt is in the nature of support is made according to federal bankruptcy law, not state law.13 In Sampson v. Sampson (In re Sampson), 997 F.2d 717 (10th Cir.1993), the Tenth Circuit conducted a two-part inquiry to determine whether an obligation constituted a non-dischargeable support obligation: 1) what was the parties' shared intent regarding the nature of the obligation; and 2) what was the substance of the obligation. Sampson, 997 F.2d at 723. In ascertaining the shared intent of the parties, the labels ascribed to a particular debt in a marital settlement agreement or divorce decree are not determinative.14 In ascertaining the substance of the obligation, the critical question is "`the function served by the obligation at the time of the divorce.'" Sampson, 997 F.2d at 725-726 (quoting In re Gianakas, 917 F.2d 759, 763 (3d Cir.1990). Factors used to determine the true nature of an obligation include: 1) the relative financial circumstances of the parties; 2) the language and substance of the marital settlement agreement or divorce decree; 3) the degree to which the obligation enables the receiving spouse to afford daily living expenses; and 4) the parties' future prospects for financial support.15

Even when considering the parties' future prospects for financial support, the relevant time period for determining whether a particular obligation constitutes a non-dischargeable domestic support obligation is the time that the obligation arose.16 Thus, neither the parties' current financial situation (unless it was anticipated at the time of the divorce), nor the fact that the receiving party intends to use the award to pay for current living expenses are relevant to the determination of whether a debt is in the nature of support.17

Denise Comstock submitted an affidavit in support of Plaintiff's Cross-Motion for Summary Judgment. Kenneth Rodriguez submitted an affidavit in response to Plaintiff's Cross-Motion for Summary Judgment. Ms. Comstock's affidavit includes averments that she is currently a student teacher, that she expects to continue in that position until June 2011, that she hopes to obtain a permanent teaching position in the fall of 2011 when she becomes a fully certified teacher, that she will use any funds she can recover from the Defendant to pay her debts and living expenses, and that she does not have the financial ability to maintain any recovery as retirement funds. See Comstock Affidavit, ¶¶ 14, 15, and 16. Mr. Rodriguez's affidavit avers, in part, that the division of the retirement funds was addressed through a settlement conference with Peter Johnstone in December of 2005, that there was never any intent on the part of either party to treat the retirement accounts as support, that there was a separate trial in the state court on the issue of support which gave Ms. Comstock three years to finish her schooling and begin a new career, and that they never discussed using the retirement funds as support. See Affidavit of Kenneth Rodriguez, ¶¶ 4 and 9.

The evidence now before the Court is insufficient to ascertain the mutual intent of the parties regarding the function the debt would serve as of the time the obligation arose. Ms. Comstock's statement that she intends to use any recovery to cover her living expenses fails to focus on the relevant time period for purposes of determining dischargeability. And while Mr. Rodriguez's affidavit states that there was no intent at the time the parties entered into the Marital Settlement Agreement for the obligation to serve as anything other than a property settlement, it gives little insight into the shared intent of the parties. Because none of the documents Defendant offered in support of his Motion were properly authenticated, the Court cannot rely on the contents of the documents as evidence of the parties' shared intent. Likewise, Plaintiff's claim that the costs and attorney's fees she incurred in defending her right to receive the funds at issue from Defendant constitute a non-dischargeable support obligation cannot be determined based on the parties' current motions.18

Based on the foregoing, the Court concludes that neither party is entitled to summary judgment determining whether the debt at issue constitutes a non-dischargeable domestic support obligation under 11 U.S.C. § 523(a)(5). Fact issues relevant to the shared intent of the parties at the time the obligation arose remain. The Court will enter separate orders consistent with this Memorandum Opinion.