MEMORANDUM OPINION

ROBERT H. JACOBVITZ, Bankruptcy Judge.

THIS MATTER is before the Court on the Third Motion for Summary Judgment and Memorandum in Support ("Motion for Summary Judgment on Counter-Claim") filed by the Defendant/Counter-Claimant, Kenneth Daryle Rodriguez, by and through his attorney, Don F. Harris. Plaintiff/Counter-Defendant Denise Comstock, pro se, opposes the Motion for Summary Judgment on Counter-Claim. See Response to Debtor's Third Motion for Summary Judgment and Memorandum in Support ("Response")(Docket No. 37).

After consideration of the Motion for Summary Judgment on Counter-Claim, the Response thereto, the evidence and affidavits offered by both parties and in support of their respective positions, and being otherwise sufficiently informed, the Court finds that the Motion for Summary Judgment should be granted, in part. Plaintiff has failed to raise a genuine issue of material fact regarding the nature of the debt at issue in this adversary proceeding.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Denise Comstock filed this adversary proceeding to determine dischargeability of debt on December 13, 2010. The debt at issue in this adversary proceeding arises from dissolution of marriage proceedings between the parties. The original complaint included nondischargeability claims under 11 U.S.C. § 523(a)(5) and (a)(15); and, alternatively, nondischargeability claims under 11 U.S.C. § 523(a)(2), (a)(4), and (a)(6). See Complaint to Determine Dischargeability of Debt (Docket No. 1). Defendant Kenneth Daryle Rodriguez filed a Motion for Summary Judgment ("First Motion for Summary Judgment") on February 22, 2011 requesting, among other things, a determination that debt at issue is non-dischargeable under 11 U.S.C. § 523(a)(15), but not under 11 U.S.C. § 523(a)(5). See Docket No. 5. Plaintiff filed a response and cross-motion for summary judgment on March 18, 2011. See Plaintiff's Response to Motion for Summary Judgment and Cross Motion for Summary Judgment (Docket No. 6).

The Court denied the cross-motions for summary judgment and entered a Memorandum Opinion. See Docket Nos. 8-10. In the Memorandum Opinion, the Court found, among other things, that 1) the copies of the Marital Settlement Agreement and Final Decree of Dissolution of Marriage with Reservation of Jurisdiction offered by the Defendant in support of his motion for summary judgment were not properly authenticated; 2) Plaintiff's Response to Motion for Summary Judgment and Cross Motion for Summary Judgment raised factual issues not pleaded in her original complaint; and 3) that genuine issues of material fact precluded summary judgment on the issue of whether the debt at issue constitutes a non-dischargeable domestic support obligation under 11 U.S.C. § 523(a)(5). See Memorandum Opinion (Docket No. 8). Plaintiff was given an opportunity to amend her complaint. See Order Denying Plaintiff's Cross-Motion for Summary Judgment and Allowing Plaintiff to File an Amended Complaint (Docket No. 10).

On June 15, 2011, Plaintiff filed a motion to dismiss this adversary proceeding. See Docket No. 11. Defendant then filed a second motion for summary judgment on June 24, 2011. See Docket No. 13. Following a preliminary hearing on the Plaintiff's motion to dismiss, held July 11, 2011, the Court gave Defendant an opportunity to file a counterclaim on or before July 21, 2011. See Order Arising from Preliminary Hearing on Plaintiff's Motion to Dismiss (Docket No. 19). The Court then dismissed Plaintiff's complaint with prejudice after Defendant filed his counterclaim.

Defendant's Counterclaim for Declaratory Relief and for Return of Preference ("Counterclaim") (Docket No. 16), filed July 19, 2011, includes the following requests for relief: 1) a determination that the debt at issue relating to the disbursement of retirement funds is not a domestic support obligation subject to 11 U.S.C. § 523(a)(5) and 11 U.S.C. § 507(a)(1), but rather a non-dischargeable debt under 11 U.S.C. § 523(a)(15); and 2) recovery of a $15,000 payment to the Plaintiff as a preferential transfer under 11 U.S.C. § 547.

On August 22, 2011, counsel for Plaintiff Denise Comstock was permitted to withdraw as counsel of record for Plaintiff. See Docket No. 20. Following the withdrawal of Plaintiff's counsel, the parties attended mediation, which was not successful. Defendant filed the Motion for Summary Judgment on Counter-Claim on October 22, 2011. See Docket No. 29. Plaintiff filed her response to the Motion for Summary Judgment on Counter-Claim on November 23, 2011, and Defendant filed a reply on December 13, 2011. See Docket Nos. 37 and 35.

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)). "[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).

MATTERS FOR DETERMINATION ON SUMMARY JUDGMENT

Plaintiff's Response identifies the following nine issues for determination: 1) whether tuition for the education of the parties' children at the Albuquerque Academy is non-dischargeable support; 2) whether the misappropriated IRA debt is non-dischargeable as a domestic support obligation; 3) whether the misappropriated IRA debt is non-dischargeable because it arises from fraud and deceit; 4) whether the misappropriated IRA debt is non-dischargeable because it was obtained through use of a statement of writing that is materially false or made with intent to deceive; 5) whether the misappropriated IRA debt is non-dischargeable because it was provided in a final judgment in a United States Court; 6) whether the misappropriated IRA debt is non-dischargeable because it was incurred in connection with a divorce decree; 7) whether the debt results from a judgment, order, or other decree entered in any Federal or State judicial or administrative proceeding, any settlement agreement entered into by the Debtor, or any court order for any damages, fine, penalty, citation or restitutionary payment, attorney fee, cost or other payment owed by the Debtor; 8) whether the $15,000 payment the Plaintiff received toward that debt three days prior to the bankruptcy being filed, as ordered by the State District Court as a partial payment arising from the misappropriation of the Plaintiff's retirement accounts, was a preference; and 9) whether the Plaintiff can continue to collect prejudgment interest until her funds are fully returned as ordered in a judgment by State District Court on December 21, 2009. See Response, pp. 1-2. Because the Plaintiff's Complaint was dismissed with prejudice, the Court may consider only the issues raised in the Counterclaim. Plaintiff's identified issue numbers 11, 3 through 5, or 72 were not raised in the Counterclaim. Therefore, it is not appropriate for the Court to consider those issues.

The issues contained in the Defendant's Counterclaim to be adjudicated in this adversary proceeding are: 1) whether the debt arising from the Defendant's disbursement of funds from certain retirement accounts contrary to the terms of the parties' marital settlement agreement constitutes a non-dischargeable debt under 11 U.S.C. § 523(a)(5) or 11 U.S.C. § 523(a)(15); and 2) whether Defendant's payment of $15,000 to Plaintiff within 90 days of the filing of the Defendant's voluntary petition under Chapter 11 of the bankruptcy case constitutes an avoidable preference under 11 U.S.C. § 547. Finally, because both parties address the issue of whether Plaintiff is entitled to pre-judgment interest on her claim represented by the July 12, 2010 judgment, the Court will resolve this issue even though it was not raised in Defendant's counterclaim.3

FACTS NOT SUBJECT TO GENUINE DISPUTE

The following material facts are not subject to genuine dispute:

CONCLUSIONS OF LAW

A. Whether the Debt Constitutes A Domestic Support Obligation

Whether a debt is in the nature of support is made according to federal bankruptcy law, not state law.4 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.5 In ascertaining the substance of the obligation, "[t]he critical question . . . is "`the function served by the obligation at the time of the divorce.'" Sampson, 997 F.2d at 725-726 (quoting Gianakas v. Gianakas (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.6 The party asserting that the obligation at issue is non-dischargeable under 11 U.S.C. § 523(a)(5) as a debt that is actually in the nature of support bears the burden of proof to establish the true nature of the debt by a preponderance of the evidence.7

i) Shared Intent of the Parties

Although the labels used by the parties to describe the obligation are not determinative, even if such language is unambiguous, the language used by the parties in a written marital settlement agreement is persuasive evidence of the parties' shared intent. Sampson, 997 F.2d at 723 (citing Yeates v. Yeates (In re Yeates), 807 F.2d 874, 878 (10th Cir.1986)). This is particularly true where, as here, the marital settlement agreement resulted from a settlement facilitation in which both spouses were represented by counsel, the twenty-page Partial Marital Settlement Agreement resulting from the settlement facilitation is quite detailed, and the state court itself determined and awarded alimony and child support after a lengthy evidentiary trial. The Partial Marital Settlement Agreement provided that Plaintiff and Defendant each would receive one-half of the retirement accounts under a section of the agreement entitled Division of Property. The language in the Partial Marital Settlement Agreement designating division of the retirement funds as part of the parties' division of the marital property is strong evidence of the parties' shared intent when considered in the context of the circumstances surrounding the negotiation of the agreement, the detailed nature of the agreement, the parties' express reservation of child support and alimony issues for the state court judge, and the state court's award of alimony and child support following a lengthy trial.

The Affidavit of Kenneth Daryle Rodriguez dated April 11, 2011 ("First Rodriquez Affidavit") states that he and Plaintiff attended a settlement conference that resulted in a settlement of property division issues, including the division of the retirement accounts, that the court held a separate trial on the issue of support as part of the State Court Dissolution Action, and that as part of that separate trial the parties never discussed using the retirement funds as support. See First Rodriguez Affidavit, ¶¶ 4 and 9. The Affidavit of Denise Comstock dated March 16, 2011 ("First Comstock Affidavit") avers that she will use the funds she recovers to pay her debts and living expenses. See Docket No. 29, attachment 9, ¶ 16. The Affidavit of Denise Comstock dated November 23, 2011 ("Second Comstock Affidavit") again avers that the retirement accounts that were awarded to her in connection with the dissolution of marriage proceedings are an essential part of her support. See Second Comstock Affidavit, ¶ 8—Docket No. 38. The Second Comstock Affidavit also states that the tuition for the children's education is a part of their support. Id. ¶ 5. These averments contained in the First Comstock Affidavit and the Second Comstock Affidavit say nothing about whether the parties together (or even whether Ms. Comstock independently) intended the division of the retirement accounts to function as support at the time of the dissolution proceedings. Plaintiff's contention that she now intends to use funds to pay for living expenses is insufficient to create a genuine issue of material fact regarding the shared intent of the spouses for the obligation to serve as support at the time of the divorce.8

ii) Substance of the Obligation

The fact that Plaintiff currently may need the retirement funds at issue to pay for the education expenses of her children and for living expenses and intends to use the funds for these types of expenses does not convert the debt into a domestic support obligation. As explained above, to constitute a domestic support obligation, there must first be evidence that the parties intended the obligation to function as support at the time the obligation arose, and second, that the obligation in fact functions as support. Sampson, 997 F.2d at 723.9 Factors relevant to the determination of the nature of the obligation also support a finding that the debt at issue is a property division. First, the Partial Marital Settlement Agreement expressly reserved the issue of support for later determination, and, in fact, both spousal support and child support were awarded to Plaintiff in the Final Decree. Second, the Partial Marital Settlement Agreement did not provide that Defendant's obligation regarding the retirement funds would terminate upon death or remarriage. The retirement funds were simply divided in half between the parties pursuant to the Partial Marital Settlement Agreement. Such an arrangement is consistent with a property settlement.10 The Court, therefore, finds and concludes that the Defendants obligations under the division of retirement funds provisions of the Partial Marital Settlement Agreement represent obligations in connection with the division of marital property, are not in the nature of alimony, maintenance, or support, and are not domestic support obligations.

The Order Directing Repayment of Retirement Funds and the Enforcement Order that give rise to the obligation at issue in this adversary proceeding were entered as a result of Defendant's use of the retirement accounts contrary to the Partial Marital Settlement Agreement. Because the division of the retirement accounts is part of the property settlement, the debt represented by the Order Directing Repayment of Retirement Funds and the Enforcement Order likewise does not constitute a domestic support obligation. The facts not subject to genuine dispute establish that Defendant's debt to Plaintiff arising from Defendant's misuse of the retirement funds is a debt arising as part of a property settlement, and is not a domestic support obligation. The Court will, therefore, grant Defendant's motion for summary judgment on this claim. The debt is, however, nevertheless non-dischargeable under 11 U.S.C. § 523(a)(15) because the debt was incurred by the debtor in connection with an order issued in the State Court Dissolution Action, is owed to a former spouse, and is not in the nature of alimony, maintenance, or support.

B. Whether the Pre-petition payment to Plaintiff of $15,000 Constitutes an Avoidable Preferential Transfer

Defendant asserts that a $15,000 payment made to Plaintiff shortly before Defendant filed his voluntary petition under Chapter 11 of the Bankruptcy Code constitutes a recoverable preferential transfer. Preferential transfers are governed by 11 U.S.C. § 547(b), which provides:

11 U.S.C. § 547(b).

The debtor in possession has the burden of establishing all elements necessary to establish a preference under 11 U.S.C. § 547(b). See 11 U.S.C. § 547(g).

Plaintiff challenges whether the transfer of the $15,000 to her within the 90-day preference period was a transfer of an "interest of the debtor in property" within the meaning of 11 U.S.C. § 547(b). The Bankruptcy Code does not define "interest of the debtor in property."13 For purposes of determining whether the property transferred constitutes an interest of the debtor in property, the Court is guided by the definition of property of the estate as defined in 11 U.S.C. § 541(a). Moses, 256 B.R. at 645.14 Property of the estate is very broadly defined in 11 U.S.C. § 541.15 It includes all of the debtor's legal and equitable property interests as of the petition date. 11 U.S.C. § 541(a). And though state law defines property interests for purposes of bankruptcy16, the Court "`must still look to federal bankruptcy law to resolve' the extent to which that interest is property of the estate."17

The primary aim of 11 U.S.C. § 547 is to preserve property that would have been property of the debtor's bankruptcy estate available for distribution to creditors had the transfer not occurred.18 In evaluating whether the debtor had a legal or equitable interest in the transferred property for purposes of applying 11 U.S.C. § 547, some courts employ a dominion and control test that examines the degree to which the debtor exercised dominion or control over the transferred property.19 If the debtor exercised dominion or control over the transferred property, the transfer is a transfer of "an interest of the debtor in property" recoverable under 11 U.S.C. § 547(b).20 A pre-petition loan of funds to the debtor is generally considered "an interest of the debtor in property" for purposes of 11 U.S.C. § 547(b).21

Here, the affidavit testimony addressing the $15,000 creates an issue of fact as to whether the property would have been property of the Defendant's bankruptcy estate had it not been transferred, and, consequently, whether the transfer was an "interest of the debtor in property" within the meaning of 11 U.S.C. § 547(b). The Second Rodriguez Affidavit includes the following averment: "I made a payment of $15,000 on September 10, 2011 from money that my parents lent me." See Second Rodriguez Affidavit, ¶ 10. The Second Rodriguez Affidavit also includes the following statement: "My attorney negotiated an order allowing for my release from custody upon the immediate payment of $15,000 toward the debt on September 10, 2010." Id. at ¶ 7. The Second Comstock Affidavit states that on information and belief, "the $15,000 payment received by me was not paid by the Debtor, but rather by his father from his father's funds." If Defendant's father made a direct payment of $15,000 to Plaintiff from his own funds without conveying any interest in those funds to the Defendant, the $15,000 would not have been property of the Defendant's bankruptcy estate under 11 U.S.C. § 541 had the transfer not occurred, and, consequently, the transfer would not have been an "interest of the debtor in property" for purposes of 11 U.S.C. § 547(b). It is not possible for the Court to determine based on the evidence presented on summary judgment whether the $15,000 was first transferred to the Defendant (as a loan) and then paid to Plaintiff, or whether Defendant's father made a direct payment of $15,000 to Plaintiff without conveying any interest in the funds to the Defendant.22 This genuine issue of material fact prevents the Court from granting summary judgment on this claim.

C. Whether the Plaintiff is Entitled to Pre-judgment Interest

Plaintiff asserts that she is entitled to pre-judgment interest on a judgment issued by the state court from April 2007 until the debt is paid in full in accordance with the Order Directing Repayment of Retirement Funds. She reasons further that because the Enforcement Order is based on the Order Directing Repayment of Retirement Funds, pre-judgment interest continues to accrue. Defendant counters that the Enforcement Order quantified the total amount of the judgment, including the amount of the pre-judgment interest she was entitled to receive, as of July 12, 2010. This Court agrees.

The Enforcement Order includes a finding that Defendant was "in violation of prior Orders of the Court." See Enforcement Order, ¶ 1. The Enforcement Judgment then awarded Plaintiff "$48,092.19 for monies owed pursuant to the prior . . . [Order Directing Repayment of Retirement Funds] on December 21, 2009 plus attorney's fees of $1,282.50, plus 8.75% from December 21, 2009 for a total judgment of $50,454.75." The Enforcement Order thus included all amounts due under the prior Order Directing Repayment of Retirement Funds, including any unpaid prejudgment interest awarded under the prior order owed as of the date of the Enforcement Order. The Enforcement Order did not separately provide for payment of any prejudgment interest awarded under the prior order. Further, the Enforcement Order is a final order that awarded a total judgment of $50,454.75 as of the date of that order. Once a judgment is final, pre-judgment interest ceases to accrue; post-judgment interest runs from the date of the judgment.23 The Court, therefore, finds that Plaintiff is not entitled to pre-judgment interest from April of 2007 in addition to the amounts awarded by the Enforcement Order; the judgment amount is fixed by the Enforcement Order in the amount of $50,454.75 as of July 12, 2010. Whether Plaintiff is entitled to post-judgment interest on that amount is not an issue now before the Court.

CONCLUSION

Based on the foregoing, the Court concludes that Defendant is entitled to summary judgment determining that Defendant's obligation relating to the division of retirement accounts that ultimately resulted in the entry of the Enforcement Order giving rise to the debt at issue in this adversary proceeding does not constitute a domestic support obligation within the meaning of 11 U.S.C. § 523(a)(5). The obligation is, however, a non-dischargeable debt under 11 U.S.C. § 523(a)(15). Genuine issues of material fact preclude summary judgment on Defendant's claim to recover a payment of $15,000 to Plaintiff as a preferential transfer under 11 U.S.C. § 547(b). Finally, Plaintiff is not entitled to continue to collect pre-judgment interest on the debt based on the Order Directing Repayment of Retirement Funds or the Enforcement Order except to the extent accrued pre-judgment interest is included in the $50,454.75 judgment contained in the Enforcement Order. An order consistent with this Memorandum Opinion will be entered.