Davis v. Davis ( 1999 )


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  •                       Revised April 6, 1999
    
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT
                         _______________________
    
                               No. 95-11112
                         _______________________
    
                            In the Matter of:
    
                          THOMAS CULLEN DAVIS;
                            KAREN JOYCE DAVIS,
                                                             Debtors,
                         _______________________
    
                              SANDRA DAVIS,
    
                                                           Appellant,
                                     v.
    
                          THOMAS CULLEN DAVIS,
    
                                                            Appellee.
    _________________________________________________________________
    
              Appeals from the United States District Court
                    for the Northern District of Texas
    _________________________________________________________________
    
                             March 17, 1999
    
    Before KING, Chief Judge, POLITZ, JOLLY, HIGGINBOTHAM, DAVIS,
    JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
    BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.
    
    EDITH H. JONES, Circuit Judge:
    
              In 1987, Cullen and Karen Davis filed for bankruptcy
    
    relief and claimed as their exempt Texas homestead a residence
    
    valued at $500,000 which they owned free and clear.      Cullen’s
    
    former wife Sandra obtained a judgment from the bankruptcy court
    
    declaring that her $250,000-plus claim for alimony, child support,
    
    and maintenance was nondischargeable under 11 U.S.C. § 523(a)(5).
    To enforce the nondischargeability judgment, Sandra sought turnover
    
    relief in the form of an order permitting her to foreclose on
    
    Cullen’s and Karen’s homestead.          The bankruptcy court and the
    
    district court held that she could not levy on the debtors’
    
    homestead because it is protected from execution under Texas law,
    
    and 11 U.S.C. § 522(c)(1), a provision of the Bankruptcy Code, did
    
    not preempt the debtors’ state-law rights.        A split panel of this
    
    court reversed the lower courts.       See Davis v. Davis (In re Davis),
    
    
    105 F.3d 1017
     (5th Cir. 1997).     This case was selected for en banc
    
    rehearing because of its importance to federal bankruptcy law and
    
    to state exemption rules.    We conclude that the lower courts were
    
    essentially correct and affirm their judgments denying Sandra the
    
    relief she seeks.
    
                        FACTUAL AND PROCEDURAL HISTORY
    
              When Sandra and Cullen divorced in 1968, they executed a
    
    property settlement, support and child custody agreement, and
    
    divorce judgment (collectively “divorce judgment”), and Cullen
    
    agreed to make monthly payments to Sandra through January 1, 1991,
    
    with certain contingent payments thereafter.           In 1979, Cullen
    
    married Karen Davis.    In 1984, Cullen and Karen purchased a house
    
    and lot for $750,000.
    
              In 1987, Cullen and Karen stopped making payments to
    
    Sandra as required by the divorce judgment and filed for Chapter 7
    
    bankruptcy relief, followed later by conversion to Chapter 11.       As
    
    
    
                                       2
    has been noted, Cullen’s and Karen’s costly, lien-free home was
    
    claimed as exempt property pursuant to § 522(b)(2)(A) and valued at
    
    $500,000 on their schedules.
    
                Armed with the bankruptcy court’s judgment that Cullen
    
    owed her $300,000 in nondischargeable alimony, maintenance and
    
    child support obligations and associated attorneys’ fees, Sandra
    
    requested that the bankruptcy court seize and sell the debtors’
    
    homestead   under    Texas   Civ.   Prac.   &   Rem.   Code   §   31.002(a),
    
    applicable to the action under Bankr. R. 7069 and Fed. R. Civ. P.
    
    69.   Because a debtor’s homestead is exempt from attachment,
    
    execution, or seizure under Tex. Const. art. XVI § 50 and Texas
    
    Property Code § 41.002(a), the bankruptcy court determined that the
    
    debtors’ homestead was not subject to the Texas turnover statute.
    
    In so doing, the court rejected Sandra’s argument that § 522(c)(1)
    
    of the Bankruptcy Code preempted the Texas homestead exemption for
    
    nondischargeable debts related to family support as defined in
    
    § 523(a)(5).    Sandra appealed this ruling to the district court,
    
    which affirmed for substantially the same reasons.            Sandra timely
    
    appealed to this court. We review the lower courts’ interpretation
    
    of the Bankruptcy Code de novo.          See Henderson v. Belknap (In re
    
    Henderson), 
    18 F.3d 1305
    , 1307 (5th Cir. 1994).
    
                        THE BANKRUPTCY EXEMPTION STATUTE
    
                At issue in this case are the meaning and preemptive
    
    force, if any, of 11 U.S.C. § 522(c), a provision that is part of
    
    
    
                                         3
    the   Bankruptcy   Code’s   framework     for   the   treatment    of   exempt
    
    property.    Understanding § 522(c) begins with a description of the
    
    lengthy provision governing exemptions of which it is a part.              See
    
    United Sav. Ass’n v. Timbers of Inwood Forest Assocs., Inc., 
    484 U.S. 365
    , 371, 
    108 S. Ct. 626
    , 630 (1988) (“Statutory construction,
    
    however, is a holistic endeavor.”).
    
                Federal bankruptcy law affords debtors a fresh start by
    
    enjoining collection of discharged debts, § 524, and by permitting
    
    the debtors to retain certain limited amounts and types of exempt
    
    property, § 522.      Exemptions have been perennially controversial,
    
    because they reduce assets potentially available to pay creditors
    
    and arouse charges of abuse of bankruptcy.             Exemptions are also
    
    fought over by states’-rights advocates, who value the traditional
    
    state   legislative    prerogative   to    adjust     exemptions   to    local
    
    economic conditions, and by advocates of federal uniformity, who
    
    want to raise -- or lower -- exemptions based on conceptions of
    
    national equity.      Congress allayed the controversy between state
    
    and federal advocates by providing in the 1978 Bankruptcy Code that
    
    states could opt out of prescribed federal exemptions altogether or
    
    could allow their citizens to select either schedule.                   See 11
    
    U.S.C. § 522(b).
    
                Exemptions are easy to claim. The debtor files a list of
    
    exempt property protected by applicable federal or state law with
    
    the court.    See 11 U.S.C. § 522(l).           If the exemptions are not
    
    
    
                                         4
    objected to, the property becomes exempt and unavailable to be
    
    levied on by pre-petition creditors or managed by the trustee.
    
                The   right   to   claim   exemptions   is   closely   guarded.
    
    Waivers are unenforceable.       See 11 U.S.C. § 522(e).     A debtor may
    
    claim exemptions even on property recovered by the trustee from
    
    third parties.    See 11 U.S.C. § 522(g).     The debtor may “avoid the
    
    fixing of a lien” to the extent it impairs an exemption.           11 U.S.C.
    
    § 522(f). Both husband and wife may claim exemptions individually.
    
    See 11 U.S.C. § 522(m).
    
                The consequences of claiming exemptions are delineated in
    
    § 522(c).    Generally, unless a case is dismissed, exempt property
    
    may not be held liable to repay any pre-petition debt of the
    
    debtor.     This very broad protection requires qualification, at
    
    least to the extent that otherwise enforceable liens on exempt
    
    property must remain viable, § 522(c)(2)(A), as must properly filed
    
    tax liens, § 522(c)(2)(B).       Only three other types of pre-petition
    
    claims against the debtor have any viability against property after
    
    it is declared exempt:          certain nondischargeable tax claims,
    
    nondischargeable family support claims, and claims of federal
    
    depository institutions regulatory agencies.1
    
                Moving from the general discussion of exemptions to the
    
    case before this court, the narrow terms of exception from the
    
         1
          Further, if a debtor claims an exemption on property
    recovered from a third party by the trustee, the exempt property
    may be used to pay the costs of administration. See 11 U.S.C. §
    522(k).
    
                                           5
    protected status of exempt property are described by the statute as
    
    follows:
    
               (c) Unless the case is dismissed, property
               exempted under this section is not liable
               during or after the case for any debt of the
               debtor that arose, or that is determined under
               section 502 of this title as if such debt had
               arisen, before the commencement of the case,
               except --
               (1) a debt of a kind specified in section
               523(a)(1) or 523(a)(5) of this title;
               (2) a debt secured by a lien that is --
               (A)(i) [& ii] [not avoided or void under
               specified provisions of this title]; or
               (B) a tax lien, notice of which is properly
               filed; or
               (3) a debt of a kind specified in section
               523(a)(4) or 523(a)(6) of this title owed by
               an institution affiliated party of an insured
               depository institution to a Federal depository
               institutions regulatory agency acting in its
               capacity   as   conservator,    receiver,   or
               liquidating agent for such institution.
    
    11 U.S.C. § 522(c).
    
               In order to prevail in this case, Sandra must demonstrate
    
    that § 522(c) creates a basis for execution on Cullen’s homestead
    
    to enforce her nondischargeable divorce judgment and that, in
    
    enacting this provision, Congress expressly or impliedly preempted
    
    the Texas homestead law.2
    
         2
          We have been unable to locate any appellate cases in which a
    court has directly discussed the effect of § 522(c) on state-
    created exemptions.     Some courts have construed § 522(c) in
    conjunction with § 522(f) in the course of avoiding certain liens
    on exempt property. See, e.g., Patriot Portfolio, LLC v. Weinstein
    (In re Weinstein), 
    164 F.3d 677
    , 679-80 (1st Cir. 1999) (Reavley,
    J.).   However, no court has held that § 522(c) establishes a
    separate means of enforcing liens against exempt property. Indeed,
    in cases involving the viability of nondischargeable federal tax
    liens, bankruptcy courts have cited the preemptive effect of the
    
                                     6
                Sandra’s argument as to § 522(c) is simple.      She reads
    
    the section to say that property exempt from payment of discharged
    
    debts is “liable” for the types of debts listed as exceptions.      But
    
    the statute does not say this.         Rather, it states that exempt
    
    property “is not liable . . . for any debt . . . except . . . [a
    
    nondischargeable divorce judgment].” Her argument did not persuade
    
    the bankruptcy court, who wrote:
    
                [Section 522(c)] does not create or establish
                liability. It enjoins most liability imposed
                by non-bankruptcy law upon exempt property but
                does not enjoin all liability for all debts.
                While it does not impose an injunction against
                liability on exempt property for § 523(a)(1)
                or (a)(5) debts, it also does not prevent non-
                bankruptcy   law   from   imposing   such   an
                injunction. Indeed, Texas has done so.
    
    Davis v. Davis (In re Davis), 
    170 B.R. 892
    , 898 (Bankr. N.D. Tex.
    
    1994).     At best, the statutory language is ambiguous from the
    
    standpoint of imposing the liability Sandra seeks. Viewed in light
    
    of   the   exemption   framework   outlined   above,   however,   Judge
    
    Felsenthal’s explanation is more plausible than Sandra’s. In other
    
    words, § 522(c) sought to leave exempt property exposed to post-
    
    bankruptcy liability only to the extent it would have been exposed
    
    if the bankruptcy had not occurred.       This interpretation is the
    
    most plausible reading of § 522(c) for several reasons.
    
    
    federal tax lien enforcement provision -- not Bankr. R. 7069 -- as
    a means of levying on otherwise exempt property. See, e.g., In re
    Reed, 
    127 B.R. 244
    , 247-48 (Bankr. D. Haw. 1991) (“[F]ederal law
    governs what is exempt from federal levy.”); Crow v. Long, 
    107 B.R. 184
    , 186-87 (E.D. Mo. 1989). Thus, these cases do not control, or
    otherwise affect, our analysis of § 522(c).
    
                                       7
                Unless    Congress    expressly   legislates    otherwise,    see
    
    infra, the policies of bankruptcy law have little bearing on
    
    property after it is exempt from the debtor’s estate.                     Such
    
    property is no longer available for distribution to creditors, and
    
    it is not subject to charge for bankruptcy administrative fees.
    
    The debtor may use the exempt property without claims of pre-
    
    petition creditors hanging over his head.            Of course, Congress
    
    deemed necessary some narrow exceptions to this policy of a fresh
    
    start for the debtor’s exempt property. Thus, purchase money liens
    
    on exempt property had to be protected to insure a free flow of
    
    credit for purchases of property in markets like residential real
    
    estate.    Further, tax liens were preserved against exempt property
    
    because the contrary result -- voiding, e.g., school tax liens on
    
    a homestead -- is unthinkable.       Section 522(c)(2) deals with these
    
    claims by simply leaving them unaltered on exempt property.               The
    
    section does not “create” or “impose” liability, nor does it
    
    override or add to state law or federal tax law.            The holders of
    
    those    sorts   of   unaltered   claims   would   have    to   proceed   via
    
    applicable non-bankruptcy collection schemes to realize on their
    
    security against exempt property.3
    
         3
            The district court drew this distinction as well:
    
                Section 522(c)(2) allows exempt property to be
                held liable for certain debts already secured
                by a lien.     If §522(c) were an execution
                statute, it would have no cause to rely on
                existing liens to have effect. That liability
                as to § 523(a)(1) and § 523(a)(5) debts is not
    
                                          8
              Yet the same introductory language to § 522(c) that
    
    leaves these liens and underlying state and federal law collection
    
    schemes unaltered is argued to have a different meaning with
    
    respect to Sandra’s nondischargeable divorce judgment. When Sandra
    
    contends that the language “creates” a “liability” over and above
    
    the protection her lien is accorded in state law, she means that
    
    the bankruptcy court can order execution on the homestead to
    
    satisfy the divorce judgment.   This contention flatly contradicts
    
    standard canons of statutory interpretation, for the same language
    
    in a single statutory provision cannot have two different meanings.
    
    See Sullivan v. Stroop, 
    496 U.S. 478
    , 484, 
    110 S. Ct. 2499
    , 2504
    
    (1990) (espousing “normal rule of statutory construction” that
    
    “identical words used in different parts of the same act are
    
    intended to have the same meaning”).
    
              Sandra’s position is also hard to justify if applied to
    
    nondischargeable tax debts, the other non-lien debts specified in
    
    
    
    
              defined by pre-existing liens does not change
              the defining -- as opposed to executory --
              nature of § 522(c). Rather, it suggests that
              for these debts a lien or other means of
              executing on the judgment need not precede the
              claiming of exemptions. The creditor, after
              the debtor has declared bankruptcy and claimed
              exemptions pursuant to § 522(b), may still
              pursue these debts by whatever means are
              available,   i.e.,   state-law  remedies   for
              execution on a judgment.
    
    Davis v. Davis (In re Davis), 
    188 B.R. 544
    , 551 (N.D. Tex. 1995).
    
                                     9
    § 522(c)(1).4         That is, while a sense of compassion for ex-spouses
    
    and children, who are the obligees of nondischargeable family
    
    support obligations, provides impetus for “creation” of liability
    
    against exempt property, the balance is not so easily struck in
    
    favor     of     “creating”      liability        of    exempt     property    to     pay
    
    nondischargeable, non-liened tax debts.                      Congress might have made
    
    the choice to “create” liability of exempt property for both types
    
    of nondischargeable debt, but this is unlikely. Taxing authorities
    
    benefit        from    favorable      lien    laws      and     other     extraordinary
    
    enforcement sanctions and penalties, and these prerequisites render
    
    additional protections in § 522(c) superfluous.                         Linguistically,
    
    Sandra’s        argument       must    furnish         the     same     protection    to
    
    nondischargeable non-liened tax obligations as she asserts it does
    
    for nondischargeable family support obligations.                      But the mandated
    
    linguistic parallelism exposes an illogical result.
    
                   Notwithstanding our view that Sandra’s construction of
    
    § 522(c) creates internal inconsistencies in that provision, bits
    
    of legislative history and the import of § 522(f) may be cited to
    
    bolster her position.           These arguments are not without force, but
    
    they are ultimately unconvincing.
    
                   In     1990,   Congress   amended       §     522(c)(3),    creating   an
    
    exception designed to prevent “bank insider kingpins” from hiding
    
         4
          Many tax debts are rendered nondischargeable by § 523(a)(1),
    a provision which is designated an exception to § 522(c) in the
    same clause with the reference to family support obligations. See
    11 U.S.C. § 522(c)(1).
    
                                                 10
    behind state exemptions to retain their “ill gotten gains.”    136
    
    Cong. Rec. E3686 (daily ed. Nov. 2, 1990) (statement of Rep.
    
    Schumer); see also 11 U.S.C. § 522(c)(3).   A statement of Senator
    
    Biden during Senate consideration of the provision suggests that
    
    the proposed legislative language
    
              specifically pre-empts State homestead laws,
              which would otherwise allow S&L crooks to
              retain lavish homes through the excessive
              protections in some State bankruptcy laws.
    
    136 Cong. Rec. S17,602 (daily ed. Oct. 27, 1990).         Isolated
    
    statements of individual legislators represent neither the intent
    
    of the legislature as a whole nor definitive interpretations of the
    
    language enacted by Congress.   See Board of Educ. v. Rowley, 
    458 U.S. 176
    , 204 n.26, 
    102 S. Ct. 3034
    , 3049 n.26 (1982).    Further,
    
    these particular statements post-date by twelve years the enactment
    
    of the prefatory language in § 522(c) with which we are here
    
    concerned.   For that additional reason, they are not probative.
    
    See United States v. Price, 
    361 U.S. 304
    , 313, 
    80 S. Ct. 326
    , 332
    
    (1960) (“[T]he views of a subsequent Congress form a hazardous
    
    basis for inferring the intent of an earlier one.”).
    
              Sandra also contends that § 522(c)(1) is not intended to
    
    serve simply as a lien preservation provision, because that purpose
    
    is fulfilled by § 522(f), which provides in part that while a
    
    debtor may avoid the fixing of a lien on exempt property, the
    
    debtor may not avoid a judicial lien for alimony or family support.
    
    If § 522(c)(1) does not have the broader purpose of permitting
    
    
                                    11
    execution against exempt property, then it is allegedly redundant
    
    of the lien preservation function of § 522(f)(1)(A)(i).                        But
    
    §   522(c)   is   not    duplicative    of    §   522(f)(1)(A).       The    former
    
    provision states the effect of an exemption on liability for each
    
    kind of debt specified, while the latter provision states when a
    
    party may avoid the fixing of a pre-petition lien on exempt
    
    property.     The two sections overlap in part, but their scope and
    
    purpose differ.
    
                 Nor does the Supreme Court’s interpretation of § 522(f)
    
    shed light on the relation between that provision and § 522(c), at
    
    least not in any sense helpful to Sandra.               In Owen v. Owen, the
    
    Supreme Court discussed whether under § 522(f) a state homestead
    
    exemption    (with      its   state   law    limitation)     should   be    treated
    
    differently from the federal exemption insofar as the § 522(f)
    
    federal lien avoidance provision is concerned.                See 
    500 U.S. 305
    ,
    
    313, 
    111 S. Ct. 1833
    , 1838 (1991).                 The Court concluded that
    
    “[n]othing in the text of § 522(f) remotely justifies treating the
    
    two categories of exemptions differently.”             Id.    In this case, the
    
    provision in § 522(c)(1) for continuing liability for certain debts
    
    applies equally to both federal and state exemption schemes; in
    
    each scenario, liability persists after bankruptcy to the same
    
    extent it did before.         It is only with respect to the enforcement
    
    of such liability, a matter which Congress has left to state
    
    mechanisms, that the results differ.
    
    
    
                                            12
                A holistic reading of § 522(c)(1) undermines Sandra’s
    
    theory that the provision is literally self-executing.                     She has
    
    confused her right with her remedy.             This error is exposed by
    
    applying her reasoning to other debts that § 522(c) preserves
    
    notwithstanding     property    exemptions,     i.e.    certain   tax       debts,
    
    federal depository regulators’ debts, and debts already secured by
    
    a valid lien.    If Sandra’s reading of § 522(c) is correct, then a
    
    homestead   could   be   sold   to    repay    non-liened   tax   debt,       made
    
    nondischargeable according to § 523(a)(1), or indeed to pay off an
    
    obligation owed to the FDIC without recourse to federal or state
    
    lien   or   homestead    protection    laws.      The   impact    of       such   a
    
    construction would put the preferred creditors in a better position
    
    after the debtor has filed bankruptcy than before and may create an
    
    incentive for filing involuntary bankruptcies. In effect, Sandra’s
    
    proffered construction of § 522(c) does not merely withhold any
    
    special protection offered by bankruptcy law, but overrides non-
    
    bankruptcy law and has the effect of denying the debtor even
    
    exemptions that would have been available outside of bankruptcy.
    
    Further, this     interpretation      seriously    disadvantages       a    debtor
    
    subject to the listed obligations, and it actively discourages a
    
    large number of potential debtors who are faced with the types of
    
    obligations excepted from § 522(c) from seeking bankruptcy relief.
    
    
    
    
                                          13
    Congress surely would not have reached this consequential result
    
    without legislating more explicitly.5
    
               For all these reasons, we conclude that § 522(c)(1) does
    
    not “create” “liability” of exempt property for specified debts
    
    following bankruptcy.      Instead, the section permits creditors
    
    holding   such   claims   to   proceed   against   the   property   after
    
    bankruptcy based on the rights and remedies they would have had
    
    under state law if bankruptcy had not been filed.
    
                                   PREEMPTION
    
               To prevail in her approach to § 522(c), Sandra must show
    
    that it preempts Texas law, thus subjecting Cullen’s homestead to
    
    seizure and sale to satisfy her nondischargeable divorce judgment,
    
    despite the express prohibition on such foreclosure contained in
    
    the Texas constitution and statutes.        See Eggemeyer v. Eggemeyer,
    
    
    623 S.W.2d 462
    , 466 (Tex. App.-Waco 1981, writ dism’d) (homestead
    
    
         5
          The bankruptcy court pointed out how easily an amendment of
    § 522(c)(1) could have expressed the affirmative mechanism for the
    collection of family support obligations that Sandra advocates:
    
               (c) Unless the case is dismissed, property
               exempted under this section is not liable
               during or after the case for any debt of the
               debtor that arose, or that is determined under
               § 502 of this title as if such debt had
               arisen, before the commencement of the case.
               (1) Notwithstanding this or any other federal
               or state injunction of liability for exempt
               property, exempt property shall be liable for
               debts of a kind specified in § 523(a)(5) of
               this title.
    
    Davis, 170 B.R. at 897 (emphasis added).
    
                                       14
    not subject to foreclosure to secure payment of accrued child
    
    support).
    
                     The Supremacy Clause enables Congress to override state
    
    laws if it so intends.           Deference to our federalism counsels a
    
    presumption that areas of law traditionally reserved to the states,
    
    like police powers or property law, are not to be disturbed absent
    
    the “clear and manifest purpose of Congress.”6                But preemption may
    
    be implied if state and federal laws conflict or a state law
    
    thwarts the “accomplishment and execution” of congressional intent.
    
    See Pacific Gas & Elec. Co. v. State Energy Resources Conservation
    
    & Dev. Comm’n, 
    461 U.S. 190
    , 204, 
    103 S. Ct. 1713
    , 1722 (1983).
    
    Moreover, if Congress has passed a pervasive federal legislative
    
    scheme leaving states no room to supplement, then state law will
    
    also be preempted.         See First Gibraltar, 19 F.3d at 1039 (citing
    
    Pacific Gas, 461 U.S. at 204, 103 S. Ct. at 1722).                      Sandra has
    
    attempted         to   demonstrate   (1)        express   preemption;    (2)   that
    
    §§ 523(a)(5) and 522(c) of the Bankruptcy Code create so pervasive
    
    a set of regulations as to impliedly preempt state laws regarding
    
    exempt property, and (3) that § 522(c) conflicts irreconcilably
    
    with       the   Texas   homestead   exemption.           Express   preemption   is
    
    precluded by our rejection of Sandra’s proffered interpretation of
    
    § 522(c).
    
           6
          See Rice v. Santa Fe Elevator Corp., 
    331 U.S. 218
    , 230, 67 S.
    Ct. 1146, 1152 (1947); First Gibraltar Bank, FSB v. Morales, 
    19 F.3d 1032
    , 1039 (5th Cir. 1994) (citing California v. ARC Am.
    Corp., 
    490 U.S. 93
    , 101, 
    109 S. Ct. 1661
    , 1665 (1989)).
    
                                               15
                  The   Bankruptcy        Code’s    “policy”    of   strengthening
    
    enforcement of family support obligations is a weak reed on which
    
    to support implied preemption.            Although § 522(c) entitles these
    
    obligations to special status against property otherwise exempt in
    
    bankruptcy, neither that provision nor § 523(a)(5), the provision
    
    for   nondischargeability        of    family   support    obligations,   which
    
    § 522(c) incorporates, expresses the full intent of the Code.                A
    
    debtor who owes family support obligations is afforded a great deal
    
    of latitude and protection.            First, the filing of the bankruptcy
    
    case automatically stays payments of support obligations, as it
    
    does all other payments to pre-petition creditors.               See 11 U.S.C.
    
    § 362(a). An ex-spouse deprived of certain family support payments
    
    must file an adversary proceeding in bankruptcy court to enforce
    
    nondischargeability, and even then, the court may order reduction
    
    of certain payments if it finds that the defaulting spouse would
    
    suffer “hardship.”        See 11 U.S.C. §§ 523(c), 523(a)(15).        A debtor
    
    may obtain a Chapter 7 discharge or confirm a Chapter 13 plan
    
    without being current in family support obligations.                Bankruptcy
    
    law presently contains neither a pervasive or consistent approach
    
    toward family support obligations.
    
                  Reliance on the exemption provision of the Code as a
    
    source   of     implied    preemption     is    also   misplaced.     Congress
    
    specifically preserved state exemptions under § 522(b), rejecting
    
    
    
    
                                             16
    a proposal for uniform federal exemptions.7             Congress allowed
    
    states to define the existence and limits of exemptions.8                  By
    
    expressly preserving a role for the state law in the Bankruptcy
    
    Code, it is clear that Congress has not devised a policy on federal
    
    exemptions so pervasive as to leave no room for a state to
    
    supplement bankruptcy law with respect to exemptions.
    
                Even more important, there is no direct conflict between
    
    compliance with the Bankruptcy Code and the Texas homestead law.
    
    We concluded earlier that in specifying certain debts for which the
    
    exempt property is still liable, § 522(c) leaves the parties to
    
    their state law collection rights.        To execute a judgment against
    
    Texas    property,   a   judgment   creditor   must   rely   on   the   state
    
    mechanism for enforcement.      Although Texas law does not permit the
    
    seizure of a homestead for a family support obligation, Sandra can
    
    still perfect a judgment lien against the property in question,
    
    even if it is a homestead.      The property is thus liable, although
    
    it is immune from seizure while it is a homestead.9 This is all
    
         7
          See Report of the Comm’n on the Bankruptcy Laws of the United
    States, H.R. Doc. No. 93-137, 93rd Cong., 1st Sess., pts. I & II,
    at 4-503 (1973).
         8
            See id. at 549-50.
         9
          The Texas Supreme Court has observed that a lien is never
    valid (in the sense of being enforceable) unless it secures payment
    for certain debts provided for in Tex. Const. Art. XVI, § 50. See
    Benchmark Bank v. Crowder, 
    919 S.W.2d 657
    , 660 (Tex. 1996). This
    does not mean, however, that a lien that is not valid and
    enforceable is completely without effect. As one Texas appellate
    court has remarked,
    
    
                                         17
    § 522(c)(1) requires.    See Davis, 188 B.R. at 550.        Section
    
    522(c)(1) assures that the debtor remains ultimately liable, and
    
    the property or proceeds from the sale of property may be subject
    
    to seizure if the property ever ceases to be the debtor’s
    
    
    
    
              [u]nder [Texas Property Code] statutory provisions,
              a judgment lien is “perfected,” or brought into
              existence against a debtor's property, by recording
              and indexing an abstract of the judgment in the
              county where the property lies.       The debtor’s
              homestead is not exempt from the perfected lien;
              rather, the homestead is exempt from any seizure
              attempting to enforce the perfected lien.
    
    Exocet Inc. v. Cordes, 
    815 S.W.2d 350
    , 352 (Tex. App.-Austin 1991,
    no writ).
    
    
                                   18
    homestead.10      Because the Texas homestead law does not bar the
    
    attachment of a perfected lien to homestead property, it does not
    
    conflict with § 522(c)(1).
    
                 Section 522(c) also fails to conflict with Texas law
    
    because     it   is   not   self-executing,   it   provides   no   means   for
    
    enforcing the creditor’s right.            Fed. R. Civ. P. 69(a) explains
    
    why:
    
                 Process to enforce a judgment for the payment
                 of money shall be a writ of execution . . . .
                 The procedure on execution, in proceedings on
                 and in aid of a judgment, and in proceedings
                 on and in aid of execution shall be in
                 accordance with the practice and procedure of
                 the state in which the district court is held,
                 existing at the time the remedy is sought,
                 except that any statute of the United States
                 governs to the extent that it is applicable.
    
    
    
           10
          As a principle of Texas law, “a judgment lien attaches to the
    judgment debtor’s interest if he abandons the property as his
    homestead before he sells it.” Hoffman v. Love, 
    494 S.W.2d 591
    ,
    594 (Tex. Civ. App.-Dallas 1973, no writ). For example, if the
    debtor acquires a second homestead before selling the first
    homestead, the first homestead is deemed abandoned and is no longer
    exempt from seizure. See England v. Federal Deposit Ins. Corp.,
    
    975 F.2d 1168
    , 1175 (5th Cir. 1992). Furthermore, if the debtor
    retains the property as his homestead until he sells it, unless the
    debtor reinvests the proceeds of the sale in another homestead
    within six months from the date of sale, the proceeds are subject
    to seizure by creditors. See Sharman v. Schuble, 
    846 S.W.2d 574
    ,
    576 (Tex. App.-Houston [14th Dist.] 1993, no writ); Tex. Prop. Code
    § 41.001(c).   Even during this six month window, if the debtor
    purchases a new homestead any remaining proceeds from the sale of
    the first homestead are instantly rendered non-exempt.          See
    England, 975 F.2d at 1174.
    
            These principles allayed our concerns about possible
    mootness arising from Cullen Davis’s sale of one homestead and
    timely purchase of another homestead while this case was pending.
    
                                          19
    (emphasis added).     Pursuant to Rule 69(a), incorporated by Bankr.
    
    R. 7069, Texas’s enforcement mechanisms govern in bankruptcy court
    
    in the absence of a federal execution statute.           The Texas turnover
    
    statute does not permit seizure and sale of a homestead to satisfy
    
    a family support obligation.             See Tex. Civ. Prac. & Rem. Code
    
    § 31.002.
    
                                      CONCLUSION
    
                Cullen and Karen Davis were entitled to exempt their
    
    homestead   from   claims    of   creditors     under   Texas   and   federal
    
    bankruptcy law, and they did so.               Sandra is entitled, under
    
    § 522(c)(1), to enforce her nondischargeable judgment for family
    
    support obligations notwithstanding the exemption claim, but her
    
    remedy must be in accord with Texas law, since § 522(c) is not an
    
    execution statute and does not preempt relevant Texas law.             Either
    
    Texas or, perhaps, the U.S. Congress could alter this situation,
    
    but it is our duty to enforce the present statute.
    
                The   judgment   of    the    district   court,   affirming   the
    
    judgment of the bankruptcy court, is AFFIRMED.
    
    
    
    
                                             20
    DENNIS, Circuit Judge, with whom POLITZ and PARKER, Circuit Judges,
    
    join, dissenting:
    
         “Property that is properly exempted under § 522 [of the
    Bankruptcy   Code]    is   (with   some   exceptions)     immunized    against
    liability for prebankruptcy debts.          § 522(c).”     Owen v Owen, 
    500 U.S. 305
    , 308 (1991) (emphasis added).             The issue in this case is
    whether    the bankruptcy court’s judgment in favor of the debtor’s
    former spouse against the debtor for unpaid alimony, maintenance,
    and child support debts falls within one of § 522(c)’s exceptions
    so that the debtor’s otherwise exempted property is not immunized
    against liability, seizure and sale for their payment. Because the
    majority opinion decides this question in diametric contradiction
    to § 522(c)’s clear language, and in conflict with the decisions of
    the Supreme Court, other circuits, and numerous bankruptcy courts
    in this and other circuits that have followed the panel opinion in
    this case, I respectfully dissent.
                                  I.     Background
         Appellant Sandra Davis (Sandra) and her former husband, Thomas
    Cullen Davis (Mr. Davis), the debtor in bankruptcy, were divorced
    in 1968.   Pursuant to their property settlement, support and child
    custody agreement, and divorce judgment, Mr. Davis agreed to make
    monthly payments to Sandra through January 1, 1991, and thereafter
    to pay her other sums subject to certain contingencies.             Mr. Davis
    made all payments until he declared bankruptcy in 1987.               In 1979,
    Mr. Davis married Karen Joyce Davis, also a debtor in this action.
    In 1984, Mr. Davis acquired property that he claimed as his
    homestead.   The property was        unencumbered and valued at $500,000.
         Mr. Davis and Mrs. Karen Davis filed a voluntary Chapter 7
    petition in 1987, which was converted to a Chapter 11 case.                They
    elected to exempt from the estate         property that was exempt under
    the state homestead exemption laws.            In an adversary bankruptcy
    court   proceeding,    Mr.   Davis    sought   a    determination   that   his
    indebtedness pursuant to the property settlement agreement and
    divorce    judgment   was    dischargeable.         Sandra   counterclaimed,
    asserting   that   the    indebtedness      was   nondischargeable    under   §
    523(a)(5). In 1991, the parties compromised and acceded to a final
    consent judgment by the bankruptcy court declaring the debt to be
    for nondischargeable alimony, maintenance, and child support under
    § 523(a)(5) and awarding Sandra a principal sum of $250,000 plus
    $50,000 in attorney’s fees.          Thus, the judgment Sandra seeks to
    enforce is not a “divorce judgment” as stated by the majority, but
    a judgment of the bankruptcy court based on Mr. Davis’s debts for
    unpaid alimony, child support, and maintenance.
         Sandra moved in bankruptcy court for turnover relief ordering
    Mr. Davis to execute a warranty deed conveying the homestead to her
    to enforce the bankruptcy court judgment.             After a hearing, the
    bankruptcy court concluded that Sandra could not levy upon Mr.
    Davis’s exempted homestead property to collect her judgment for
    alimony,    maintenance,     and    child    support,    holding     that   the
    Bankruptcy Code does not preempt the state constitutional homestead
    exemption law.     In re Davis, 
    170 B.R. 892
    , 898 (Bankr. N.D. Tex.
    1994).     Sandra appealed.        The district court affirmed.         In re
    Davis, 
    188 B.R. 544
     (N.D. Tex. 1995).              Sandra appealed to this
    court.
         A panel of this court vacated the district and bankruptcy
    court judgments and remanded for further proceedings, holding that
    alimony, maintenance, and child support debts fall within the
    exceptions provided for by § 522(c) to the immunity of exempted
    property against liability for prebankruptcy debts; that the state
    homestead exemption laws were superseded by the Bankruptcy Code;
    and that the debtor’s property is liable to seizure and sale to pay
    the bankruptcy court’s judgment against the debtor in favor of his
    former spouse based on his unpaid alimony, child support, and
    maintenance debts.       Davis v. Davis, 
    105 F.3d 1017
     (5th Cir. 1997).
                                  II.    Discussion
    
    
                                          22
         Property that is properly exempted under § 522 is, as a
    general   rule,     immunized   by   §    522(c)   against     liability   for
    prebankruptcy debts.     Owen, 500 U.S. at 308.           Certain debts are
    excepted from the protection of § 522(c), however, for which
    exempted property is liable:             (1) nondischargeable debts for
    alimony, maintenance,     and child support, § 523(a)(5), and taxes,
    § 523(a)(1); (2) valid liens that may not be avoided under the
    trustee’s powers and certain tax liens in exempt property that are
    not affected by the bankruptcy; and (3) nondischargeable debts for
    fraud and willful injury owed to a federal depository institutions
    regulatory agency acting as a conservator, receiver, or liquidating
    agent under §§ 523(a)(4) and (6).         The debt at issue in the present
    case is a debt of a kind specified in § 523(a)(5), which makes
    nondischargeable any debt “to a spouse, former spouse, or child of
    the debtor, for alimony to, maintenance for, or support of such
    spouse or child, in connection with a separation agreement, divorce
    decree or other order of a court of record. . . or property
    settlement agreement. . . .”     11 U.S.C. § 523(a)(5).
         Property that is exempted under § 522 and therefore immune
    from all other liability is liable for and may be seized to pay
    nondischargeable alimony, maintenance, and child support debts and
    other obligations excepted from § 522(c) protection. See Owen, 500
    U.S. at 308 (“Property that is properly exempted under § 522 is
    (with     some    exceptions)   immunized       against       liability    for
    prebankruptcy debts.”) (emphasis added); Walters v. United States
    Nat’l Bank of Johnstown, 
    879 F.2d 95
    , 97 (3d. Cir. 1989) (Tax and
    alimony and child support debts “are neither dischargeable nor
    exemptible.”); RESNICK, WEINTRAUB & RESNICK, BANKRUPTCY LAW MANUAL ¶ 4.08
    at 4-54 (4th ed. 1996) (“Exempt property may be seized to pay
    nondischargeable tax liabilities and obligations to pay alimony,
    maintenance, or support.”); 2 DAVID G. EPSTEIN      ET AL.,   BANKRUPTCY, § 8-1
    n.17 (1992) (“Exemptions are not effective, however, with respect
    
    
                                         23
    to two types of nondischargeable debts: tax debts and debts for
    alimony, maintenance, or child support.”); DON CAMPBELL                 ET   AL.,
    
    CREDITORS’ RIGHTS HANDBOOK, A GUIDE   TO THE   DEBTOR-CREDITOR RELATIONSHIP, §
    20.03[4] (1993) (“Exempt property may be used to satisfy certain
    tax debts or for obligations for child support or alimony.”); DAVID
    G. EPSTEIN & STEVE H. NICKLES, DEBT, BANKRUPTCY, ARTICLE 9   AND   RELATED LAWS,
    759 (1994) (“After bankruptcy, creditors with domestic claims
    excepted from discharge by section 523(a)(5) will have recourse to
    exempt property.”).
         This reading of § 522 is in accord with its legislative
    history.   Referring to that section the Senate report, with which
    the House report is      virtually identical, reads:
               Subsection (c) insulates exempt property from
               prepetition claims other than tax claims
               (whether or not dischargeable), and other than
               alimony, maintenance, or support claims that
               are excepted from discharge. The rule of Long
               v. Bullard, 
    117 U.S. 617
     (1886), is accepted
               with respect to the enforcement of valid liens
               on nonexempt property as well as on exempt
               property.
    
    S. REP. NO. 95-989, 95th Cong., 2d Sess. 76 (1978), reprinted in
    1978 U.S.C.C.A.N. 5787, 5862; see H.R. REP. NO. 95-595, 95th Cong.,
    2d Sess. 361 (1978), reprinted in 1978 U.S.C.C.A.N. 6317.                    The
    drafters of the exemption section thus were aware that exempt
    property    would   be    protected        against   some,   but    not      all,
    nondischargeable debts.      See Walters, 879 F.2d at 97.
         In the present case, the panel opinion’s interpretation of §
    522(c) is confirmed by the legislative history of § 522(c)(3), the
    third exception added by the Crime Control Act of 1990, Pub. L. No.
    101-647, relating to the enforcement of certain nondischargeable
    debts owed to a federal depository institutions regulatory agency
    acting as a conservator, receiver, or liquidating agent. Referring
    to that new exception, the section-by-section analysis pursuant to
    
    
                                          24
    the remarks of Representative Charles Schumer on the Banking Law
    Enforcement section of the Crime Control Act of 1990 provides:
              Currently, section 522(c) provides that the
              property exemptions described elsewhere in
              section 522 do not apply in the case of tax
              obligations,    alimony    and   child   support
              responsibilities, or security agreements in
              which the otherwise exempt property is pledged
              as collateral. The new exception would apply
              to   certain   debts    owed   by   institution-
              affiliated parties to federal depositary
              institutions regulatory agencies acting in
              their capacity as receiver, conservator, or
              liquidating agent.    Specifically, the debts
              covered are debts for fraud or defalcation
              while   acting   in   a    fiduciary   capacity,
              embezzlement, or larceny, as described in
              section 523(a)(4); and for willful and
              malicious injury to another entity or to the
              property of another entity, as described in
              section 523(a)(6).    These acts represent the
              highest form of financial criminality against
              a federally insured depositary institution by
              a person entrusted under the law with the care
              and safekeeping of the institution.
    
    136 CONG. REC. E3687 (Nov. 2, 1990) (emphasis added).   Also, Senator
    Biden, Chairman of the Senate Judiciary Committee, remarked:
              I accepted changes drafted by the House only
              because they maintained the core Senate-passed
              bankruptcy language that prevents all S&L
              wrongdoers from discharging their debts by
              filing for bankruptcy.     The final language
              specifically preempts State homestead laws,
              which would otherwise allow S&L crooks to
              retain lavish homes through the excessive
              protections in some State bankruptcy laws.
                     Mr. President. . . [u]nder the bill,
              major S&L offenders will spend time behind
              bars. Their assets will be seized. And every
              possible   dollar   will  be   recovered   for
              depositors and taxpayers.
    
    136 CONG. REC. S17602 (Oct. 27, 1990) (emphasis added).
    
    
    
    
                                     25
           Bankruptcy courts consistently have interpreted the tax and
    tax lien provisions of §§ 522(c)(1) and (2), correlative to the
    alimony provision of § 522(c)(1), to authorize creditors and
    lienholders to reach the exempted property of the debtor to satisfy
    tax liabilities.        See, e.g., In re Holl, 
    35 B.R. 206
     (Bankr. D.
    Haw. 1983) (IRS was able to levy on exempted proceeds of sale of
    homestead to satisfy a debt for a tax nondischargeable under §
    523(a)(1)); In re Hebermehl, 
    132 B.R. 651
     (Bankr. D. Colo. 1991)
    (same as to exempted wages); In re Braddock, 
    149 B.R. 636
     (Bankr.
    D. Mont. 1992) (tax lien took priority over homestead exemption as
    to    exempt   proceeds    derived    from   sale    of   homestead).      Accord
    Davenport v. United States, 
    136 B.R. 125
     (W.D. Ky. 1991); Crow v.
    Long, 
    107 B.R. 184
     (E.D. Mo. 1989).           See also In Re Reed, 
    127 B.R. 244
     (Bankr. D. Haw. 1991) (tax lien could be enforced against
    exempt pension plan contributions).
           Section 522(c)(1) was not intended, as the majority asserts,
    merely to preserve judgments and judicial liens securing alimony,
    maintenance, and child support debts against exempted property.
    That purpose is effectuated by § 522(f)(1), which excepts from the
    debtor’s right under § 522 to avoid the impairment of the fixing of
    liens on exempted property, inter alia, judicial liens securing
    alimony, maintenance, and child support debts. Nor was § 522(c)(1)
    intended merely to put alimony or child support judgment creditors
    on the same footing with other creditors holding nondischargeable
    claims. That result is expressly accomplished by § 523(a)(5). The
    context in which § 522(c)(1) occurs, the text of the Bankruptcy
    Code as a whole, including particularly §§ 522(b), (c) and (f) and
    § 523(a)(5), in pari materia, and the legislative history of those
    provisions, clearly show that § 522(c)(1) does not redundantly
    duplicate the lien preservation function of § 522(f)(1)(A)(i) or
    the    exception   to     discharge   function      of    §   523(a)(5).    By   §
    522(c)(1), Congress clearly intended to insulate nondischargeable
    
    
                                           26
    alimony, child support, and maintenance debts from the effects of
    the debtor’s exemptions.
          The en banc majority erroneously concludes that the Bankruptcy
    Code does not preempt the state homestead exemption laws.                        They
    fail to recognize the scope of the federal preemption of the field
    of bankruptcy law or the exclusivity of the federal-law basis of
    the debtor’s qualified right to exempt property from the bankruptcy
    estate.      The power of Congress to establish uniform laws on the
    subject      of   bankruptcies      throughout        the     United    States    is
    unrestricted and paramount.              U.S. CONST. art. I, § 8, cl. 4;
    International Shoe Co. v. Pinkus, 
    278 U.S. 261
    , 265 (1929); Pereira
    v. United Jersey Bank, N.A., 
    201 B.R. 644
    , 678 (S.D.N.Y. 1996).
    Congress     exercised    this   power        by   enacting   national,    uniform
    bankruptcy laws, the most recent of which is the Bankruptcy Code,
    which      necessarily   exclude    or    displace     any    conflicting    state
    regulation.       International Shoe, 278 U.S. at 265.             Consequently,
    states may not pass or enforce laws to interfere with or complement
    the   Bankruptcy     Code   or     to    provide     additional    or    auxiliary
    regulations.      See id. at 266.
     A. Recent Decisions Following the Davis v. Davis Panel Opinion
    Analysis11
          A number of recent circuit court, bankruptcy appellate court,
    and bankruptcy courts have agreed with some or all of the foregoing
    principles.       Many of those courts have followed, quoted or cited
    the Davis v. Davis panel opinion in the present case with approval.
    See Leicht v. Bruin Portfolio, LLC (In re Leicht), 
    222 B.R. 670
    ,
    677, 678, 679 n.9 (B.A.P. 1st Cir. 1998)                (“[A]lthough through §
    522(b) Congress provided states with the opportunity to define the
    category and content of exemptions resident debtors may invoke in
    
    
    
          11
           The majority’s failure to acknowledge and address all but
    one of these cases is difficult to understand.
    
                                             27
    bankruptcy . . ., it defined the operative effect of exemptions in
    bankruptcy       through      §§   522(c)      and    (f).    .    .   .   Section      522(c)
    completes       the     Code’s       treatment        of     nondischargeable           debts,
    complementing inter alia §§ 523(a), 524(a)(3) and 727(b), by
    providing that exempt property is immunized against liability for
    prebankruptcy debts, including ‘some, but not all, nondischargeable
    debts’. . . .            § 522(c) may not be a one-way street.                         It may
    operate to subject exempt property to liabilities for which it
    could not be reached under state law.”) (quoting Davis, 105 F.3d at 1020,
    1022-23); In re Gregory, 
    214 B.R. 570
    , 574 (Bankr. S.D. Tex. 1997) (“Section 522(c)(1) of
    the Bankruptcy Code provides that exempt property can be used to pay certain pre-petition
    debts such as those for taxes under § 523(a)(1) and for alimony and child support under
    § 523(a)(5). These debts are neither dischargeable nor exemptible. Because these
    provisions of the Bankruptcy Code preempt state homestead exemption law, ‘the state
    homestead exemption law is inoperative’ against claims pursuant to § 523(a)(1) and §
    523(a)(5) and creditors with claims under these provisions are ‘entitled under the
    Bankruptcy Code to proceed against the debtor’s otherwise exempted property.’”) (quoting
    Davis, 105 F.3d at 1020, 1023); S & C Home Loans, Inc., v. Farr (In re Farr), 
    224 B.R. 438
    , 439 (Bankr. N.D. Cal. 1998) (“A debtor’s rights under section 522(c) are governed by
    federal law, not state law. The clear intent of Congress in section 522(c) was to preserve
    property exempted in bankruptcy for satisfaction of tax and support obligations.”) (citing
    Davis, 105 F.3d at 1021-23); In re Pascucci, 
    225 B.R. 25
    , 28 (Bankr. D. Mass. 1998)
    (“‘[F]ederal law determines whether property is exempted and immunized against seizure
    and sale for prebankruptcy debts.’”) (quoting Davis, 105 F.3d at 1022); In re Van Zant,
    
    210 B.R. 1011
    , 1015 (Bankr. S.D. Ill. 1997) “[W]hile state law identifies and quantifies the
    property a debtor may exempt from the bankruptcy estate in those states that have ‘opted-
    out’ of the federal exemptions, the Code does not adopt or preserve the state exemptions
    with all their built-in limitations.”) (citing Davis, 105 F.3d at 1022-23); In re Richardson, 
    224 B.R. 804
    , 808 (Bankr. N.D. Okla. 1998) (“‘The power of Congress to establish uniform laws
    on the subject of bankruptcies throughout the United States is unrestricted and paramount.
    
                                                   28
    . . . Consequently, states may not pass or enforce laws to interfere with or complement the
    Bankruptcy Code or to provide auxiliary regulations.’”) (quoting Davis, 105 F.3d at 1022).
    See also Patriot Portfolio, LLC v. Weinstein (In re Weinstein), 
    164 F.3d 677
    , 683 (1st Cir.
    1999) (Reavley, J.) (“We recognize that Congress afforded significant deference to state
    law by allowing bankruptcy debtors to choose state exemptions and by further allowing
    states to opt out of the federal exemption scheme entirely. Yet, . . . the state’s ability to
    define its exemptions is not absolute and must yield to conflicting policies in the
    Bankruptcy Code.”) (citing Owen, 500 U.S. at 313).
                      B. Response to Majority’s Erroneous Reasoning
           The majority’s decision is based on two arguments: (1) that § 522(c) of the
    Bankruptcy Code is ambiguous as to whether the types of creditors’ claims that §§
    522(c)(1)-(3) except from immunization of exempted property against liability may be
    enforced against exempted property after bankruptcy; and (2) that the most plausible
    interpretation of § 522(c) is that it “leave[s] exempt property exposed to post-bankruptcy
    liability only to the extent it would have been exposed if the bankruptcy had not occurred.”
    Maj. Op. at 7-8. Both arguments are incorrect for the many reasons discussed below.
           Perhaps the best short refutation of the majority’s arguments is contained in
    Professor Resnick’s explanation of how § 522(c) is designed to protect the debtor’s
    exempted property from most, but not all, nondischarged creditors’ claims:
                  It is easy to see that if property that is exempt under the Code
                  but not under state law is available to creditors with
                  nondischargeable claims, the effect of the exemption may be
                  wiped out.
                          Congress was aware of this problem, and, for this
                  reason, the Code provides that exempt property may not be
                  levied upon for any prepetition debt, whether or not the debt is
                  discharged. There are, however, several exceptions. Exempt
                  property may be seized to pay nondischargeable tax liabilities
                  and obligations to pay alimony, maintenance, or support.
                  Moreover, valid liens that may not be avoided under the
                  trustee’s powers and certain tax liens in exempt property are
                  not affected by the bankruptcy. A third exception was added
                  in 1990 relating to the enforcement of certain
                  nondischargeable debts owed to a federal depository
    
                                                 29
                  institutions regulatory agency acting as a conservator,
                  receiver, or liquidating agent.
    
    RESNICK, supra ¶ 4.08[1], at 4-53 to 4-54 (footnotes omitted).
           Thus, § 522(c) is designed to perform two essential functions. In general, it shields
    exempted property from liability to seizure and sale for the payment of nondischargeable
    debts. As exceptions to that general rule, it allows piercings of the shield and permits
    levies upon exempted property for the payment of a small number of certain types of
    nondischargeable debts. The exceptions are narrowly and carefully drawn to uniformly
    further several policies deemed by Congress to be of national importance.
           The indiscriminate rendering of § 522(c) by the majority opinion erroneously
    obliterates the important distinction Congress drew between the small class of particular
    types of nondischargeable debts specified by §§ 522(c)(1)-(3) and all other
    nondischargeable debts listed in § 523(a). The majority wrongfully relegates needy former
    spouses with unpaid alimony and child support claims, and other claimants given
    legislated preference by §§ 522(1)-(3), to the ordinary nondischargeable creditor class,
    forces them to compete with all comers for basic sustenance from the scarce non-exempt
    assets of the debtor, and defeats the goals envisioned by Congress in its well thought out
    and deliberately crafted legislation.
           The majority opinion does not follow the plain meaning of the Bankruptcy Code’s
    words. Section 522(c) is not ambiguous, especially when it is read within the context of
    the Code as a whole. Contrary to the majority opinion, § 522(c)’s exception of specific
    debts named therein from the effects of the debtor’s exemptions is not qualified according
    to whether the debt is accompanied by a lien. The majority’s attempt to read such a
    qualification or distinction into § 522(c) is an unconcealed attempt to substitute its own
    policy making for that of Congress. When the words of § 522(c) are applied as written and
    within the context of the Code as a whole, they clearly and unambiguously conflict with and
    preempt the state homestead exemption laws with respect to the debtor’s alimony, child
    support, and maintenance obligations.            Section 105 of the Bankruptcy Code
    unquestionably authorizes a bankruptcy court to issue any order, process, or judgment
    
    
                                                30
    necessary to carry out the provisions of the Code, including an order to seize and sell the
    debtor’s property to satisfy the bankruptcy court’s judgment.        Federal Rule of Civil
    Procedure 69(a) must be used by federal courts in accordance with other applicable
    statutes of the United States to enforce, not thwart, federal court judgments. The majority
    is clearly wrong in ignoring §105 of the Bankruptcy Code and in misapplying Federal Rule
    of Civil Procedure 69(a) to unpreempt and exalt the state homestead exemption laws over
    the Bankruptcy Code and to defeat the enforcement of the bankruptcy court’s judgment.
                                1. The Meaning of “Exemption” and “Liability”
           Section 522(c) is not “ambiguous” as the majority contends. The plain meaning of
    the term “exemption,” as used in § 522 of the Bankruptcy Code, refutes the majority’s
    argument that the term “liable,” as used in that section, means that a debtor’s property is
    only subject to a judgment lien, and remains immune from seizure and sale.
           The Supreme Court has defined “exemption” as the “right . . . which withdraws the
    property from levy and sale under judicial process.” White v. Stump, 
    266 U.S. 310
    , 313
    (1924) (emphasis added). This court has defined “exemption” as “the freedom of property
    of debtors from liability to seizure and sale under legal process for the payment of their
    debts.” Clark v. Nirembaum, 
    8 F.2d 451
    , 452 (5th Cir. 1925), (emphasis added) (citing
    25 C.J. § 8 (now 35 C.J.S. § 1 (1960)), cert. denied, 
    270 U.S. 649
     (1926). Similarly,
    bankruptcy courts have defined an “exemption” as a “‘privilege allowed by law to a
    judgment debtor, by which he may hold property to a certain amount or certain classes of
    property, free from all liability to levy and sale on execution or attachment.’” In re Komet,
    
    104 B.R. 799
    , 806 (Bankr. W.D. Tex. 1989) (emphasis added) (quoting BLACK’S LAW
    DICTIONARY 571 (5th ed. 1979).12 See also In re Hudspeth, 
    92 B.R. 827
    , 830 (Bankr. W.D.
    Ark. 1988) (same); In re Pritchard, 
    75 B.R. 877
    , 878 (Bankr. D. Minn. 1987) (same).
    “Exemption” also has been defined as “a right given by law to a debtor to retain a portion
    
    
    
           12
             The current definition of “exemption” in Black’s Law Dictionary is “[a] privilege
    allowed by law to a judgment debtor, by which he may retain property to a certain amount
    or certain classes of property, free from all liability to levy and sale on execution,
    attachment, or bankruptcy.” BLACK’S LAW DICTIONARY 571 (6th ed. 1990).
    
                                                 31
    of his personal property free from seizure and sale by his creditors under judicial process.”
    31 AM. JUR. 2D Exemptions § 1 (1989).
           This definition of exemption is critical to an understanding of the meaning of the
    word “liable” in 11 U.S.C. § 522:
                  (c) Unless the case is dismissed, property exempt under this
                  section is not liable during or after the case for any debt of the
                  debtor that arose, or that is determined under Section 502 of
                  this title as if such debt had arisen, before the commencement
                  of the case, except --
                           (1) a debt of a kind specified in section . . . 523(a)(5) of
                  this title.
    
           The word “liable,” as used in the section of the Bankruptcy Code entitled
    “Exemptions,” means “liable to levy and sale on execution or attachment.” In re Komet,
    104 B.R. at 806. More specifically, the statutory reference to “liable,” in the context of
    exemptions, means that property exempted by a debtor under “Federal law” or “State or
    local law” pursuant to § 522(b)(2)(A) is free from liability for seizure and sale by his or her
    creditor under judicial process unless the debt is, inter alia, a debt “to a spouse, former
    spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse
    or child, in connection with a separation agreement, divorce decree or other order of a
    court of record.” 11 U.S.C. § 523(a)(5). Because alimony and child support debts are an
    exception to the debtor’s privilege to exempt certain property from seizure and sale (see
    discussion infra of “exceptions to exemptions”), it follows that the property is liable for
    seizure and sale by a former spouse with a judgment for alimony and child support that is
    nondischargeable under § 523(a)(5).
           The majority asserts without any support in federal law that “liable” in § 522(c)(1)
    means only that an alimony and child support creditor can “perfect a judgment lien against
    the property. . . although it is immune from seizure.” The majority cites only Texas law for
    the proposition that Congress intended “liable” in § 522(c)(1) as an esoteric proxy for
    “nondischargeable debt” and “nonavoidable lien.”13 “Liable” taken in its usual sense and
    
    
           13
                See Maj. Op. at 17-18 & n.9.
    
                                                   32
    as used in § 522, however, means “liable for seizure and sale” and not merely “liable to
    attachment by a nonavoidable but unenforceable lien.” Section 522(c) of the Bankruptcy
    Code expressly abrogates a debtor’s privilege allowed by state law by which he may hold
    property free from all liability to levy and sale under legal process for the payment of debts
    defined by § 523(a)(5). By denying the debtor this privilege of exemption for certain
    nondischargeable debts, § 522(c) permits the property to be seized and sold to satisfy
    these obligations.
          2. Section 522's “Exception to Exemptions” For Family Support Debts
           The Bankruptcy Code does not confer upon a debtor an absolute or unqualified
    right to exempt property from seizure and sale.            Section 522 expressly makes
    nondischargeable debts for alimony, maintenance or child support an exception to the
    debtor’s general privilege to exempt certain property from liability for seizure and sale.
    Thus, property exempted under § 522 is nevertheless liable for seizure and sale to satisfy
    debts specified in § 523(a)(1) (tax obligations) and § 523(a)(5) (child and spousal support).
    See In re Citrone, 
    159 B.R. 144
    , 146 (Bankr. S.D.N.Y. 1993). The majority uses circular
    and obverse reasoning in an attempt to show that Texas state exemption law (by virtue of
    Fed. R. Civ. P. 69(a)) “reverse preempts” federal court enforcement of judgments for
    nondischargeable alimony and support debts under § 522(c) of the Bankruptcy Code. To
    the contrary, however, Congress, by the specific terms of § 522 and its constitutional
    power, has superseded and preempted the effect of the state exemption law upon this
    particular kind of debt.     While the Bankruptcy Code allows a debtor to claim state
    exemptions, it also revokes this privilege as to the debtor’s nondischargeable child and
    spousal support obligations.
           In addition to the numerous authorities cited above, other bankruptcy scholars and
    practitioners interpret 11 U.S.C. § 522(c) as establishing exceptions to the exemptions
    provided generally under § 522(b): The bankruptcy exemptions do not apply to protect
    property from seizure and sale to satisfy family support obligations. See Howard N. Cayne
    et al., Overview of Comprehensive Thrift and Bank Fraud Prosecution Act of 1990 and the
    Enforcement Provisions of the Financial Institutions Reform, Recovery and Enforcement
    
    
                                                 33
    Act of 1989, in CIVIL AND CRIMINAL LIABILITY OF OFFICERS, DIRECTORS, AND PROFESSIONALS:
    BANK &
    THRIFT LITIGATION   IN THE   1990'S , at 545, 562-63 (PLI Comm. Law & Practice Course
    Handbook Series, PLI Order No. A4-4355, 1991) (“Under existing law, subsection (c)
    provides that the bankruptcy exemptions do not apply in the case of . . . alimony and child
    support payments.”); see also John K. Villa & Robert M. Krasne, A Preliminary Review of
    Banking Enforcement Provisions Contained in Title XXV of the Crime Control Act of 1990,
    in CIVIL AND CRIMINAL LIABILITY OF OFFICERS, DIRECTORS, AND PROFESSIONALS: BANK & THRIFT
    LITIGATION IN THE 1990'S, at 597, 616 (PLI Comm. Law & Practice Course Handbook Series,
    PLI Order No. A4-4355, 1991) (Section 2522 of the Crime Control Act of 1990 “amends the
    U.S. Bankruptcy Code, 11 U.S.C. §§ 523, 522, 365, 507 and 101, to create (i) two
    additional exceptions to the discharge of indebtedness, through bankruptcy, [and] (ii) a
    new category of obligations to which property exemptions do not apply. . . .”). Significantly,
    section 2522(b) of the Crime Control Act of 1990, which amended 11 U.S.C. § 522(c), is
    entitled “EXCEPTION TO EXEMPTIONS.” Crime Control Act of 1990, PL 101-647, 104
    Stat. 4789, 4866 (Nov. 29, 1990); see also In re Colonial Realty Co., 
    980 F.2d 125
    , 133
    (2d Cir. 1992) (Section 2522 “add[ed] § 522(c)(3) as an additional exception to § 522
    exemption”).
           One commentator has declared that “[a]t present, a person with a claim for alimony,
    support, or maintenance has a solution under bankruptcy law. . . . If the debtor becomes
    insolvent, and a voluntary or involuntary petition in bankruptcy is filed, the homestead will
    not be exempt from this type of prebankruptcy debt.” Donna Litman Seiden, There’s No
    Place Like Home (Stead) in Florida -- Should It Stay That Way?, 18 NOVA L. REV. 801, 859
    (Winter 1994). The author’s reasoning follows that of this dissenting opinion: Because
    the Bankruptcy Code has the effect of subordinating the exemption to certain debts,
    creditors with claims for alimony, maintenance, or support can reach exempt property, by
    means of a forced sale to satisfy this preferred debt, regardless of the state law exemption.
    Id. at 815 & n. 257.                  3. Preemption
    
    
    
    
                                                 34
           To decide whether the Bankruptcy Code preempts the Texas homestead exemption
    laws, a court must begin by comparing § 522(c) with the state homestead constitutional
    and statutory provisions to determine if there is a conflict. Section 522(c) provides that
    during or after bankruptcy, exempt property is not liable for any debt that arose prepetition,
    or is deemed to have so arisen under § 502, except those debts specified in
    subparagraphs (1) through (3). See 11 U.S.C. §§ 522(c)(1) - (3). This list includes: (1)
    debts for certain taxes and customs duties; (2) debts for alimony, maintenance, or support;
    (3) liens that cannot be avoided; (4) liens that are not void; (5) tax liens; and (6) certain
    nondischargeable debts owed to federal depository institutions. See id.
           Congress has plenary power to enact uniform federal bankruptcy laws. See U.S.
    CONST. art. 1, § 8, cl. 4; International Shoe, 278 U.S. at 265. Consequently, "[s]tates may
    not pass or enforce laws to interfere with or complement the Bankruptcy Act or to provide
    additional or auxiliary regulations." International Shoe, 278 U.S. at 265 (noting that the
    intent of Congress in establishing uniform bankruptcy laws necessarily excludes
    inconsistent state regulation). I recognize that Congress afforded significant deference
    to state law by allowing bankruptcy debtors to choose state exemptions and by further
    allowing states to opt out of the federal exemption scheme entirely. See Weinstein, 164
    F.3d at 683 (citing In re Boucher, 
    203 B.R. 10
    , 12 (Bankr. D. Mass. 1996) (citing 11 U.S.C.
    § 522(b))). Yet, such deference does not warrant the conclusion that the detailed
    exceptions in § 522(c) to the general immunity from liability of the "property exempted"
    provided for by the same section must yield to or be controlled by the state exemption
    laws. As the Supreme Court recognized in discussing the interplay between § 522(f) and
    state exemption exceptions in Owen, the state's ability to define its exemptions is not
    absolute and must yield to conflicting policies in the Bankruptcy Code. See Owen, 500
    U.S. at 313.
           Only by adding a heavy Texas spin to gloss over the plain words and meaning of
    § 522(c) is the majority able to close its eyes to the obvious conflict between the state laws
    that exempt homestead property from liability to seizure and sale for alimony and child
    support debts and § 522(c)(1), which excepts nondischargeable alimony and child support
    
    
                                                 35
    debts from the effects of that exemption. The majority struggles to avoid acknowledging
    the conflict by theorizing that § 522(c)(1) does not mean what it says but strangely enough
    has a meaning that produces substantially the same result Texas courts have reached
    when a Texas court judgment creditor seeks to enforce her alimony and child support
    decree based solely on state law against the judgment debtor’s homestead: The former
    spouse may have her lien attached to the property but she cannot enforce it until the
    debtor dies or abandons his homestead.14 In fact, as we have learned during the course
    of this case, under Texas law, she cannot enforce it against the proceeds of his sale of the
    homestead if he invests them in another Texas homestead within six months of the sale.15
           The conflict between the Bankruptcy Code and the Texas homestead exemption
    laws, however, is too sharp and too real to be covered up by any amount of ingenious
    judicial gloss. The state laws provide for an exemption of property from liability to seizure
    and sale for the owner’s alimony and child support debts. The federal bankruptcy law in
    § 522(c)(1) provides for an exception to that exemption of the same property from liability
    to seizure and sale for the debtor-owner’s alimony and child support debts.
            Consequently, there is a conflict between the state and federal laws. Therefore,
    it must be concluded that the state homestead laws are preempted by the federal
    Bankruptcy Code. State law is void to the extent it is in conflict with a federal statute. See
    Maryland v. Louisiana, 
    451 U.S. 725
    , 747 (1981) and authorities cited therein.
         4. Bankruptcy Court’s Broad Enforcement Powers Under 11 U.S.C. § 105
           The majority insists that the Bankruptcy Code provides no means by which federal
    courts can enforce a final judgment rendered by a bankruptcy court.
           Section 105 of the Bankruptcy Code, however, plainly states:
                  (a) The court may issue any order, process, or judgment that
                  is necessary or appropriate to carry out the provisions of this
                  title. No provision of this title providing for the raising of an
                  issue by a party in interest shall be construed to preclude the
                  court from, sua sponte, taking any action or making any
    
           14
                See Maj. Op. at nn.9-10.
           15
                See Maj. Op. at n.10.
    
                                                 36
                  determination necessary or appropriate to enforce or
                  implement court orders or rules, or to prevent an abuse of
                  process.
    
    11 U.S.C. § 105(a).16
           This court has declared that “[t]he language of this provision is unambiguous.
    Reading it under its plain meaning, we conclude that a bankruptcy court can issue any
    order. . . necessary or appropriate to carry out the provisions of the bankruptcy code.” In
    re Terrebonne Fuel and Lube, Inc., 
    108 F.3d 609
    , 613 (5th Cir. 1997). The Supreme Court
    has declared that the “statutory directives [of § 105(a)] are consistent with the traditional
    understanding that bankruptcy courts, as courts of equity, have broad authority to modify
    creditor-debtor relationships.” United States v. Energy Resources, Inc., 
    495 U.S. 545
    , 549
    (1990). For example, a bankruptcy court has the authority under § 105 to void a debtor’s
    exemption in order to compensate the estate for damage caused by the debtor’s contempt
    of the court’s orders. In re Haddad, 68 B.R. at 951.
           One leading commentator on bankruptcy law characterizes § 105 as “an omnibus
    provision phrased in such general terms as to be the basis for a broad exercise of power
    in the administration of a bankruptcy case. The basic purpose of § 105 is to assure the
    bankruptcy courts power to take whatever action is appropriate or necessary in aid of the
    exercise of its jurisdiction.” 2 L. KING, COLLIER ON BANKRUPTCY § 105.01, at 105-3 (1996).
    The second sentence of § 105(a) was expressly intended to broaden the authority of
    bankruptcy courts to act, sua sponte, to promote the Code’s provisions. See In re Kestell,
    
    99 F.3d 146
    , 148 (4th Cir. 1996) (citing 132 CONG. REC. S15074-05 (Oct. 3, 1986)).
           In In re Moody, 
    837 F.2d 719
     (5th Cir. 1988), this court held that pursuant to § 105,
    “a district court has jurisdiction to enforce [nondischargeable] judgments against property
    other than property of a bankruptcy estate. . . . This jurisdiction properly extends to an
    order in aid of collecting valid claims and judgments of the bankruptcy trustee against the
    
    
    
           16
             Bankruptcy courts have inherent power to enforce settlement agreements
    between parties. In re Haddad, 
    68 B.R. 944
    , 953 (Bankr. D. Mass. 1987); In re Bienart,
    
    48 B.R. 326
    , 328 (Bankr. N.D. Iowa 1985).
    
                                                 37
    beneficiary of the trust.” Id. at 723-24. More recently, under the authority of Moody, the
    district court in Bass v. Denney, No. 3:97-CV-2043-P, 
    1998 WL 59486
     (N.D. Tex. Feb. 9,
    1998), held that the bankruptcy court had the power and authority under § 105 to fashion
    remedies to assist a judgment creditor in enforcing or collecting a nondischargeable
    judgment obtained against a debtor entered pursuant to 11 U.S.C. § 523. Id. at *1-2.
           The broad grant of authority conferred upon bankruptcy courts and district courts
    by 11 U.S.C. § 105 permits these courts to issue “any order, process, or judgment that is
    necessary or appropriate to carry out the provisions of this title.” Therefore, § 105
    provides federal courts with a means of enforcing the bankruptcy court’s judgment based
    on nondischargeable alimony, maintenance, and child support debts by ordering the
    debtor’s homestead seized and sold to satisfy this nondischargeable, nonexemptible debt.
                     5. Assimilation of State Practices and Procedures
           Federal Rule of Civil Procedure 69(a) provides that the procedure “on execution,
    in proceedings supplementary to and in aid of a judgment, and in proceedings on and in
    aid of execution shall be in accordance with the practice and procedure of the state in
    which the district court is held, existing at the time the remedy is sought, except that any
    statute of the United States governs to the extent that it is applicable.” Fed. R. Civ. P.
    69(a) (emphasis added). Thus, the emphasized exception makes any applicable federal
    statute controlling, as well as any relevant civil rule, because those rules have the force
    of a statute. 12 CHARLES A. W RIGHT ET AL., FEDERAL PRACTICE & PROCEDURE §3012, at 142
    (1997) (citing Gary W. v. State of La., 
    622 F.2d 804
     (5th Cir. 1980) (district court had
    power to order Secretary of Louisiana Department of Health and Human Resources to pay
    money judgment from Department funds even though Louisiana Constitution prohibited
    payment of judgment against state except from funds appropriated for such purpose by
    legislature), cert. denied, 
    450 U.S. 994
     (1981)).
           Section 105 of the Bankruptcy Code is a fitting, fully applicable, and, therefore,
    controlling federal statute authorizing the bankruptcy court to enforce its judgment.
    Consequently, Federal Rule of Civil Procedure 69(a), and state practice and procedure
    adopted thereby, do not prevent a federal court from using whatever means are necessary
    
    
                                                38
    to guarantee compliance with its judgments. The Fourth Circuit aptly summed up the
    relationship between state procedural vehicles and federal statutes as follows:
                   Even though we look to state law to determine the practice and
                   procedure to be followed in the execution of a judgment, we do
                   so in furtherance of federal law, giving effect to rules entitling
                   parties to enforce federal judgments in federal courts.
                   Consequently, any aspects of the assimilated practices and
                   procedures that are uniquely designed to enforce state
                   judgments are not assimilated, nor is any aspect that may be
                   inconsistent with the federal policy of affording judgment
                   creditors the right to a writ of execution to enforce money
                   judgments in federal courts.
    
    United States v. Harkins Builders, Inc., 
    45 F.3d 830
    , 833 (4th Cir. 1995) (emphasis added)
    (citing 12 CHARLES A. W RIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE §
    3012, at 69 (1973)).17 Consequently, a debtor cannot accomplish “through the back door,”
    ostensibly under Rule 69(a), what cannot be accomplished under the federal Bankruptcy
    Code: invoking state exemption laws to immunize or protect homestead property from
    seizure and sale to satisfy nondischargeable, nonexemptible child and spousal support
    debts.
                                           III. Conclusion
             The Bankruptcy Code provides that the commencement of a voluntary bankruptcy
    case creates an estate comprised of legal and equitable interests of the debtor in property,
    wherever located and by whomever held. 11 U.S.C. § 541. Under the Code, an individual
    debtor has a qualified right, under defined circumstances, to exempt from the estate the
    same property that is exempt from levy under state, local, and nonbankruptcy federal law.
    11 U.S.C. § 522(b)(2)(A). Property that is exempted from the estate is immunized against
    liability for prebankruptcy debts, subject to the exception of, inter alia, debts for alimony,
    
    
    
             17
             More than 150 years ago, the Supreme Court declared that early federal acts,
    which prescribed that modes of process and proceedings in execution in state court should
    be applicable to federal courts in those states, did not manifest legislative intent to defeat
    the execution of judgments rendered in the courts of the United States. Duncan v. Darst,
    
    42 U.S. 301
    , 306 (1843).
    
                                                  39
    maintenance, child support, taxes and other liabilities specified by the Code. 11 U.S.C.
    § 522(c). The debtor’s qualified right to exempt property from the estate, and the
    relationships between the debtor, his creditors, and exempted or non-exempted property
    with regard to prebankruptcy debts, are governed exclusively by federal law.
    Consequently, it is clear that the provisions of the state homestead exemption law that
    seek to immunize the debtor’s homestead against liability to seizure and sale for
    nondischargeable alimony and support debts conflict with and have been superseded by
    the Bankruptcy Code. The state law cannot alter the obligations of a bankruptcy debtor
    and his creditors as provided for by federal bankruptcy law. See International Shoe, 278
    U.S. at 265; In re John Taylor Co., 
    935 F.2d 75
    , 78 (5th Cir.1991). For these reasons, the
    state homestead exemption laws are inoperative against the debtor’s former spouse in this
    case and she is entitled under the Bankruptcy Code to proceed against the debtor’s
    otherwise exempted property to satisfy her alimony, maintenance, and child support
    judgment. Accordingly, the judgments below should be vacated and the case should be
    remanded to the bankruptcy court with directions to allow the appellant to obtain a writ of
    execution and all other relief to which she is entitled by law.
    
    
    
    
                                                 40