source: Caselaw Access Project

author: ROVNER, Circuit .Judge.

license: Public Domain

text:
    William HINESLEY, III, Petitioner-Appellant, v. Wendy KNIGHT, Superintendent, Correctional Industrial Facility, Respondent-Appellee.
    No. 15-2122
    United States Court of Appeals, Seventh Circuit.
    Argued April 13, 2016
    Decided September 13, 2016

      Michael Ausbrook, Attorney, Blooming-ton, IN, for Petitioner-Appellant.
    Justin F. Roebel, Attorney, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

      . Before EASTERBROOK, MANTON, land ROVNER, Circuit Judges.
   ROVNER, Circuit .Judge.

Following a bench trial in Indiana state court, William Hinesley, III, was convicted of molesting his 13 year-old former foster daughter, V.V. After exhausting his state court remedies, Hinesley petitioned for a writ of habeas corpus, contending that his trial counsel deprived him of effective representation when he allowed the inculpato-ry out-of-court statements of the two principal witnesses against him into evidence without objection and likewise posed no objection to the admission of two statements in which witnesses vouched for V.V.’s credibility. ■ Hinesley also rai'sed an argument of cumulative ineffectiveness based on these and other purported errors on the part of his lawyer. The district court denied his petition. Hinesley v. Knight, No. 1:14-cv-1097-JMS-TAB, 2015 WL 1969643 (S.D. Ind. Apr. 29, 2015). We affirm.

I.

Because there was no physical evidence of Hinesley’s guilt, the State’s case rested almost entirely on the testimony of the victim, V.V., and, to a lesser extent, her (former) foster brother, William Hinesley, IV, who was known as Billy. Prior to trial, both witnesses had made statements that conflicted with the initial accounts they had given to the investigating detective. It had also become known that V.V. and Billy were in a sexual relationship with one another- at the time of the charged offense and, because that relationship was unlawful (given their respective ages), they wanted to keep the relationship hidden. When the case came to trial, it was defense counsel’s strategy to allow all of the prior statements V.V. and Billy had made into evidence without objection or limitation in order to lay bare the inconsistencies in those statements and to argue that neither witness was credible in view of the conflicts. The State understood that this was the defense strategy and at trial elicited the initial, inculpatory out-of-court statements of V.V. and Billy at some length, with no objection by the defense. Defense counsel also made no objection to the admission of statements by the investigating detective and by Billy that they believed V.V.’s account. The defense took every opportunity to highlight the ways in which V.V. and Billy subsequently had changed their stories and to suggest that the investigation of V.V.’s allegations was inadequate. The trial judge nonetheless convicted Hinesley; finding that V.V.’s testimony was credible. His counsel’s strategy having failed, Hinesley now contends that his attorney was ineffective for permitting the State to elicit the out-of-court statements of V.V. and Billy as substantive evidence, rather than eliciting the statements himself on cross-examination as impeachment, and in allowing the two instances of vouching by the State’s witnesses. These and certain other omissions form the basis for a separate assertion of cumulative ineffectiveness.

We begin with a summary of the facts relevant to Hinesley’s conviction. V.V. had been taken into the Hinesley family as a foster child. V.V. was happy in the Hines-ley home, but Hinesley’s wife Sharon eventually concluded that the placement was not a good one, as there was some tension between herself and V.V. In the autumn of 2008, V.V. was removed from the Hinesley household and placed with Hinesley’s parents. But V.V. continued to periodically visit Hinesley and his family. (She is thus frequently described in the record as Hinesley’s foster daughter notwithstanding the change in placement.) V.V. was present for such a visit in the Hinesley home on the evening of Friday, January 16, 2009, when the assault underlying Hinesley’s conviction occurred. The facts forming the basis for Hinesley’s conviction were summarized by the Indiana Court of Appeals in affirming the conviction on direct appeal:

On the night of January 16, 2009, the Hinesley family was at home in Paragon, Indiana. Hinesley, his son, William J. Hinesley, IV (“Billy”), who was twenty years old at the time, a foster daughter, V.V., who was thirteen years old at the time, and others were present. Eventually, Hinesley and V.V. were the only ones awake. They sat on a couch in the living room and talked as they watched a movie. Next, Hinesley got up and went into the kitchen. When he returned, he approached V.V. and pulled down, her pants and underwear. Hinesley got on top of V.V. and put his penis in her vagina. After a short period'of time, V.V. tried to push Hinesley away, and he got up and left the room. V.V. got up and pulled up her pants.
Meanwhile, Billy was going to the kitchen to get a glass of water. He encountered V.V., who told him that she had just had sex with Hinesley. Billy sent V.V. to the master bedroom while he woke his sister, S.H., and had her go into the master bedroom with him and V.V. In the morning, Billy contacted his uncle, who was a police officer in Mooresville, Indiana, and the local police were contacted.

Hinesley v. State, 957 N.E.2d 217 (table), 2011 WL 5117056, at *1 (Ind. Ct. App. Oct. 27, 2011) (unpublished).

V.V. and Billy both gave videotaped statements the following morning to Morgan County Sheriffs Detective Dan Downing. V.V. described the events as recounted above. Billy indicated in his statement that he had approached the living room just as V.V. was pulling her pants up. He asked V.V., “[D]id I see what I thought I saw?” and V.V. nodded and told him that he had. State Ex. 2 at 12:04. It was then that V.V. informed him that Hinesley had sexually assaulted her.

What neither V.V. nor Billy disclosed to Downing was that they were engaged in a sexual relationship with one another. In fact, although she did not yet know it, V.V. was pregnant with Billy’s child (she gave birth in August 2009) at the time of the assault by Hinesley. The relationship between V.V. and Billy is described as consensual, but given their respective ages, it constituted child molestation as a legal matter. Billy would eventually plead guilty to that offense once the relationship came to light.

Subsequently, both V.V. and Billy made statements that were either wholly or partially inconsistent with what they had told Downing. One week after the incident, V.V. told Hinesley’s mother that she had made the whole thing up. When later deposed by defense counsel in advance of trial, V.V. acknowledged the recantation but then testified that Hinesley had, in fact, assaulted her. But she also professed uncertainty as to certain key details of the assault, including whether Hinesley had actually placed his penis into her vagina. Billy was also deposed prior to trial, and during his deposition he said that he could no longer remember whether he had seen V.V. pulling up her pants in the immediate aftermath of the incident.

As we have said, there was no physical evidence’confirming V.V.’s account of the assault. Both V.V. and Hinesley were examined on the morning after the assault, but in neither case was the presence of DNA from the other individual detected. On the other hand, Hinesley had shaved the pubic hair from his body at some point prior to his examination (he would later testify that he and his wife both did this as a matter of routine). Also, during a search of the Hinesley home on the morning after the incident, police discovered a pair of still-wet pajama pants and underwear in the dryer by themselves, despite there being dirty clothing piled in the hallway nearby and throughout the house. Hines-ley had been wearing pajama pants and underwear the previous evening, although police were unable to determine whether the pajamas and underwear in the dryer were the ones Hinesley had been wearing.

On the morning of trial, the State offered to drop the multiple child molestation charges against Hinesley if he agreed to plead guilty to a misdemeanor charge of battery, with credit for the time Hinesley had already served in jail prior to trial along with a period of probation, and with no requirement that he register as a sex offender. Hinesley rejected the offer against his attorney’s advice.

The case proceeded to trial on three child molestation charges: (1) that Hines-ley had engaged in sexual intercourse with a child less than 14 years of age, in violation of Indiana Code § 35-42-4 — 3(a) (1), then a Class A felony; (2) that he had engaged in deviate sexual conduct with a child under 14 years of age, in violation of the same statute, again a Class A felony; and (3) that he had touched or fondled a child under 14 years of age with intent to arouse or satisfy the sexual desires of either himself or the child, in violation of § 35-42-4-3(b), a Class C felony. The State previously had dismissed a fourth charge — that Hinesley had touched or fondled his biological daughter, S.H. The parties agreed that the case would be tried to the bench.

As we have mentioned, it was defense counsel’s strategy to elicit all of the various pre-trial, out-of-court statements that both V.V. and Billy had made so as to establish the changing ñatee of their accounts and to suggest that they were not credible as to the alleged assault by Hines-ley. Defense counsel thus posed no objection when, during the State’s case, the prosecution asked both Downing and Billy to recount certain out-of-court statements that both V.V. and Billy had made. We shall return to these statements after we first summarize the trial testimony of witnesses Downing, V.V., and Billy.

Downing was the first of these witnesses to testify for the State. He described his interviews of both V.V. and Billy, and recounted in full what they had told him about the assault. During his testimony, the video recording of Billy’s 30-minute interview was played for the court in its entirety.

V.V. was the second of these witnesses to take the stand. She testified, consistently with her original statement to Downing, that after she and Hinesley were left alone in the living room of the Hinesley residence on the evening of January 16, 2009, the two of them watched a movie, with V.V. resting her head in Hinesley’s lap. At some point, Hinesley had gotten up and gone into the kitchen. When he returned to the living room, he pulled down her pajama pants and underwear, placed himself on top of her, pinned down her shoulders, penetrated her vagina with his penis, and began to have intercourse with her. Stunned and not knowing at first what to do, V.V. after a moment “got a hold of [herjself,” told Hinesley she wanted to go to bed, shoved him off of her, and then pulled up her pants. Tr. 117. As V.V. prepared to leave the' room, she saw Billy in the nearby hallway, and he beckoned her over to him with a gesture. V.V. testified that Billy was “freaking out kind of, like he was upset and mad,” Tr. 118, and he asked her if he had just seen what he thought he saw. She told him yes. At that point, he directed her to the master bedroom, where she informed Billy, using slang terminology, that Hinesley had sexually assaulted her.

On cross-examination, V.V. was confronted with the multiple statements she had made prior to trial that were inconsistent with her testimony (and her original interview with Downing). She acknowledged the recantation she had made to her foster grandmother one week after the incident; that recantation, she said, was a lie. She acknowledged that at her deposition, she had expressed an inability to recall whether Hinesley had placed his penis into her vagina. At first, she confirmed that she was uncertain about this point at the time of her deposition. Ultimately, however, she conceded that her professed inability to recall was a lie. She acknowledged having lied about various other points during her deposition. She also admitted that she was engaged in a sexual relationship with Billy at the time of the assault and that she knew it was wrong.

Billy reiterated at trial that V.V. told him his father had sexually assaulted her, but he professed uncertainty as to whether he had seen V.V. pulling up her pants as he had told Downing he had on the day after the incident. Although he recalled what he had told Downing, Billy testified that “[a]t this point in time I do not remember what I saw.” Tr. 170. When pressed on that point by defense counsel, he allowed that he “could have” lied about that to Downing, Tr. 179, and agreed with Hinesley’s attorney that “there’s a good chance that [he] didn’t see anything at all,” Tr. 178. He acknowledged that when he was interviewed by the police, he knew that he himself could be charged criminally for his' conduct with V.V., was afraid of being exposed, and that he had lied to the police about his relationship with V.V. Billy was otherwise a hesitant witness who repeatedly claimed a lack of recollection as to various points and often gave inaudible answers to questions.

Hinesley himself testified in his own defense. He denied that he had ever molested V.V. He further denied that he had ever been alone with V.V. on the night in question.

Having summarized the testimony of the principal witnesses at Hinesley’s trial, we now pause to focus on certain of the out-of-court statements that came into evidence while Downing and Billy were on the witness stand. These are the inculpatory statements that form the basis for Hines-ley’s first (and principal) argument that his trial counsel was ineffective.

Downing’s summary of V.V.’s interview

As we have noted, Downing summarized the interviews he conducted of both V.V. and Billy on the morning after the assault. With respect- to his interview of V.V., Downing testified, “[V.V.] then stated that [Hinesley] made penetration into her vaginal area[,]” and similarly, “At that point in time she stated that Mr. Hinesley told her to pull her pants down, at which point in time he inserted ... his penis into her vagina.” Tr. 25.

Downing also reiterated later in his testimony that V.V. had advised him that the assault by Hinesley involved “actual penetration.” Tr. 28. (We note that V.V.’s interview, like Billy’s, was videotaped, but the videotape of her interview was not played at trial.)

Downing’s summary of Billy’s interview

Summarizing Billy’s original statement, Downing testified in relevant part that “[Billy] asked [V.V,] if he seen what he thinks he ... or if he seen what he thought he had saw, and [V.V.] said, yes.” Tr. 18.

Billy’s videotaped statement

As we have noted, the videotape of Billy’s interview with Downing was played during Downing’s testimony. Hinesley highlights two statements! from that interview. First, Billy recounted that upon em tering the living room, “I asked [V.V.]. All 1 said was ... did I see what I thought I saw? She nodded and said yes.” State Ex. 2 at 12:04. Second, in describing his followup conversation with V.V., Billy said, “I guess I asked her did he touch you in some spot. She said yes. And ... she told me that he entered her,” State Ex. 2 at 12:39.

Billy’s testimony as to what V.V. told him

Finally, at trial, Billy testified that “[V.V.] told me that they had sexual intercourse.” Tr. 194.

These out-of-court statements (some of which constituted hearsay within hearsay) were presumptively inadmissible for the truth of the matters asserted therein. See Ind, R. Evid. 801(c), 802, The prosecutor testified at Hinesley’s post-conviction hearing that she understood the statements to be admissible,' at least in part, in order to explain the course of Downing’s investigation. But see Craig v. State, 630 N.E.2d 207, 210-11 (Ind.1994) (out-of-court statements made to police offered to explain course of investigation lack relevance when the defense does not dispute what investigating authorities were told or the propriety of the steps they took); see also Maxey v. State, 730 N.E.2d 158, 161-62 (Ind. 2000). However, the prosecutor also testified that based on her pre-trial discussions with defense counsel, she understood it would be the, defense, strategy to elicit and/or allow the admission of these same out-of-court statements in order to highlight the inconsistencies and to challenge the credibility of V.V. and Billy. In any case, Hinesley’s position is that once the statements were elicited without objection, the trial judge as the factfinder was free to consider them as substantive evidence for any purpose. See Marcum v. State, 725 N.E.2d 852, 863 (Ind,2000) (in examining trial record for sufficiency of evidence supporting defendant’s conviction, reviewing court may consider, otherwise inadmissible evidence admitted without objection as substantive evidence) (quoting Humphrey v. State, 680 N.E.2d 836, 840 (Ind.1997)).

In addition to the various out-of-court statements, there were two instances in which the State’s witnesses expressed their opinion as to the credibility of V.V. Downing was the source of one of these opinions and Billy, in his videotaped statement to Downing, was the source of the other. In neither instance did defense counsel raise an objection to the relevant statement, and as we discuss below, Hines-ley asserts that the failure to object allowed these two witnesses to improperly vouch for V.V.’s credibility. Here are the two statements in question:

Downing. In the course of Downing’s testimony, the State at one point asked Downing to describe V.Y.’s demeanor during the interview on the morning after the assault. Downing responded:

Relatively childlike. She was very protected, very guarded. She acted much younger than ... than her physical age. But she seemed very believable. I didn’t see any reason not to believe her statements, especially due to the fact' they were corroborated by ... by Billy.

Tr. 23.

Billy. Billy’s statement as to V.V.’s credibility was uttered in the course of his videotaped interview rather than during his trial testimony. Near the end of that interview, Billy had remarked to Downing: “I don’t believe she made this up.” State’s Ex. 2 at 28:52.

At the conclusion of the State’s case, the court dismissed two of the three charges against Hinesley — the deviate sexual conduct charge and the touching or fondling charge. The State had conceded that there was no evidence to support the former and that the latter was based solely on V.V.’s testimony that intercourse had occurred.

At the conclusion of the defense case (there was no rebuttal-by¡ the State), and after hearing closing arguments, the judge convicted Hinesley on the .Class A felony charge that he had molested V.V. The judge remarked that defense counsel had done “an excellent job” in pointing out the inconsistencies in the various statements of the State’s witnesses. Tr. 277. However, the judge went on to note that in opting for a bench trial, the parties had “left it in [her] bailiwick” to make credibility determinations, Tr. 278, and she expressly found V.V.’s testimony, to be credible. She later sentenced Hinesley to a prison term of 30 years, 5 of which are to be served as probation.

After his conviction was affirmed on direct appeal, Hinesley sought post-conviction relief, alleging principally that his trial counsel had been ineffective in various respects. As relevant here, he contended that counsel erred in allowing the prior out-of-court statements of both V.V. and Billy into evidence without objection or limitation and in allowing both Downing and Billy to vouch for V.V.’s credibility. Hinesley’s petition was assigned to the same judge who had presided over the trial and convicted him. She convened an evidentiary hearing on the petition, at which Hinesley’s trial counsel, Daniel Van-divier, testified. Vandivier explained that it was the defense theory that V.V. and Billy, for ulterior reasons (including the effort to hide their own relationship), had fabricated, the alleged assault. In pursuit of that theory, it was Vandivier’s goal to highlight all of the inconsistencies in the various statements that V.V. and Billy had given about the assault. Toward .that end, Vandi-vier opted to forego any hearsay objections when the State’s witnesses were asked to repeat certain of these out-of-court statements. As to the vouching, when specifically confronted at the hearing with Downing’s testimony regarding V.V.’s credibility, Vandivier did not have a specific recollection as to wjiy he did not object to that testimony; but he indicated that he may have withheld objection in order to argue that Downing gave unquestioning acceptance to V.V.’s account from the start and consequently never conducted an adequate investigation into what did or did not occur. He also believed that Downing’s observation that V.V.’s statements were corroborated by Billy rendered Downing’s credibility assessment vulnerable, given that Billy no longer stood behind his initial statement that he saw V.V. pulling her pants up after the assault.

The trial judge denied Hinesley’s request for post-conviction relief. The trial court found that “Mr. Vandivier’s failure to object to hearsay evidence from the various witnesses during the trial was a trial strategy and was reasonable under the unique circumstances of this case[.]” R. 14-4 at 60 ¶ 11. The court added that regardless of any hearsay admitted into evidence, its own determination that V.V. was a credible witness and that she testified truthfully regarding the assault was sufficient to uphold Hinesley’s conviction regardless of any hearsay admitted into evidence without objection. R. 14-4 at 60 ¶ 12. (The court did not expressly address the vouching statements in her findings.)

The Indiana Court of Appeals affirmed. Hinesley v. State, 999 N.E.2d 975 (Ind.Ct.App.2013). With respect to the out-of-court statements that were not objected to, the court pointed out that “Hinesley concedes that the hearsay evidence was admissible for impeachment purposes, and therefore the evidence was going to be admitted in one form or another.” Id. at 984. The court found no error in the trial court’s conclusion that defense counsel’s decision to allow the statements into evidence without limitation as part of a broader strategy to lay out all of the inconsistencies in the statements made by V.V. and Billy was a reasonable trial strategy. Id. It pointed out that counsel’s strategy may have been partially successful to the extent that the trial judge had dismissed the other two child molesting counts. Id. As to the vouching, the court noted that although Vandivier was not able to specifically explain his reasons for not objecting, courts typically do not insist that counsel confirm each aspect of their trial decisions. Id. at 985. The court found that Vandivier’s decision not to object to the vouching was consistent with his overall trial strategy “and was not unreasonable under the circumstances.” Id. It added that because the case had been tried to the bench, the usual concern regarding the influencing that vouching might have upon on the jury was not present. Id. In any event, the court was not convinced that the vouching prejudiced Hinesley. “[T]he record reveals that the two statements were isolated and not pervasive and did not affect the outcome of the trial. We are unpersuaded that but for counsel’s failure to object to the alleged improper vouching statements, there is a reasonable probability that the verdict would have been different.” Id. at 985-86.

Finally, the court disposed of Hinesley’s additional allegation of cumulative ineffectiveness — based on the foregoing and other omissions — on the ground that he had not established prejudice. The court noted that Indiana’s judicial temperance doctrine presumes that a trial judge sitting as the factfinder knows the law and relies solely on relevant and probative evidence that is properly before the court in rendering his decision. Id. at 987 (citing Konopasek v. State, 946 N.E.2d 23, 28 (Ind.2011), and Conley v. State, 972 N.E.2d 864, 873 (Ind.2012)). In the court’s view, Hinesley had not rebutted that presumption. The trial judge, in denying Hinesley’s post-conviction petition, indicated that she had found V.V. credible in her account of the offense regardless of any hearsay that Vandivier had allowed into evidence without objection. Id. The fact that she dismissed two of the three counts against Hinesley bore her out, given that the only evidence supports ing those charges was found in Downing’s testimony as to what V.V. had told him. Id. at 987-88. And although the judge did not similarly disclaim any reliance on the vouching statements, the appellate court found no reason to believe that she had. Id. at 988. In this case, there was no person better situated to assess whether Hinesley had been harmed by his trial counsel’s strategy than the trial judge herself. The fact that she found no reasonable probability that the trial might have turned out differently had counsel pursued a different strategy was entitled to a greater than usual degree of deference, in the appellate court’s view. Id.

Hinesley sought review in the Indiana Supreme Court, but that court denied his petition for transfer. Hinesley v. State, 7 N.E.3d 993 (Ind. May 1, 2014).

Hinesley then petitioned for relief in the district court pursuant to 28 U.S.C. § 2254. The district court denied his petition. 2015 WL 1969643. In relevant part, the court determined that the state courts had not unreasonably applied Supreme Court precedent in rejecting Hinesley’s ineffectiveness claim as to the uncontested admission of hearsay and as to the vouching remarks by Downing and Billy. Id. at *3-*4. “[T]he Indiana Court of Appeals ‘took the constitutional standard seriously and produced an answer within the range of defensible positions.’ ” Id. at *4 (quoting Mendiola v. Schomig, 224 F.3d 589, 591 (7th Cir.2000)). The court found that it was precluded from considering the resolution of Hinesley’s allegation of cumulative ineffectiveness, as that claim was procedurally defaulted. Id. at *3.

II.

Hinesley’s appeal pursues each of the three iterations of ineffectiveness that we have mentioned: that his counsel, by voicing no' objection to the out-of-court statements of'V.V. and Billy, improperly allowed those statements into evidence without limitation; that his counsel likewise allowed Downing and Billy to vouch for V.V.’s credibility without objection; and finally that these and certain other omissions cumulatively deprived Hinesley of his right to the effective assistance of counsel. We review the district court’s- decision to deny relief on Hinesley’s claim of ineffective assistance de novo. E.g., Ruhl v. Hardy, 743 F.3d 1083, 1090 (7th Cir.2014).

Like the district court, we must observe the constraints of section 2254 in evaluating the claim of ineffective assistance of counsel. As relevant here, the statute precludes a federal court from granting relief in habeas unless the state court’s resolution of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]” § 2254(d)(1). There can be no contention that the Indiana appellate court — the last state court to address Hinesley’s claim on its merits — resolved his ineffectiveness claim in a manner “contrary” to clearly established federal law: -the court recognized Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as the controlling precedent and applied its familiar’ two-pronged framework. See Bell v. Cone, 543 U.S. 447, 452-53, 125 S.Ct. 847, 851, 160 L.Ed.2d 881 (2005) (per cu-riam) (citing Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000)) (state court’s decision is “contrary to” federal law if, inter alia, court applies rule that contradicts governing law set forth in Supreme Court cases). Hines-ley’s habeas petition is instead premised on the contention that the Indiana appellate court unreasonably applied- Strickland.

- Strickland itself requires that a convicted individual make two showings in order to prove that he was deprived of his right to effective assistance of counsel. First, he must show that his counsel’s performance was- deficient, that is, that his attorney made errors so serious that he was not functioning as the counsel guaranteed to him by the Sixth Amendment. 466 U.S. at 687, 104 S.Ct. at 2064. In deciding whether the petitioner has made this showing, we -must avoid “the distorting effects of hindsight” and instead assess his counsel’s performance against the circumstances that confronted counsel at the relevant time—here, the trial. Id. at 689, 104 S.Ct. at 2065. Recognizing that “[t]here are countless ways to provide effective assistance in any given case,” we must indulge a strong presumption that counsel’s representation falls within a wide range of reasonable representation; and it is, of course, the petitioner’s burden to overcome that presumption. Id. at 689-90, 104 S.Ct. at 2065-66. .Second, the petitioner must show that he was prejudiced by his counsel’s ineffective representation, i.e., that he was deprived of a fair trial whose result is reliable. Id. at 687, 104 S.Ct. at 2064. Specifically, he must demonstrate that there is a reasonable probability that but for his counsel’s unprofessional errors, the result of the trial would.have been different. Id. at 694, 104 S.Ct. at 2068. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., 104 S.Ct. at 2068.

In order for us to conclude that the Indiana appellate court’s application of Strickland was unreasonable for purposes of section 2254, it is not enough that we might disagree with that court’s rationale. “Over and over, the [Supreme] Court has stressed that ‘an unreasonable application of federal law is different from an incorrect application of federal law.’ ” Ward v. Neal, No. 16-1001, 2016 WL 4492479, at *3 (7th Cir. Aug. 26, 2016) (quoting Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011)) (emphasis in Richter). “The Richter court elaborated that ‘a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’ ” Id. (quoting Richter, 562 U.S. at 103, 131 S.Ct. at 786-87).

Our review is therefore “doubly deferential,” Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009), in the sense that Strickland’s inquiry is “highly deferential” to a lawyer’s plausible strategic choices, 466 U.S. at 689, 104 S.Ct. at 2065, and our review under section 2254(d) is likewise “highly deferential” to the state courts that resolved Hinesley’s ineffectiveness claim in the first instance, Burt v. Titlow, — U.S. -, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013).

With these standards in mind, we turn to the first respect in which Hinesley contends his trial counsel was ineffective. Hinesley maintains that it was unreasonable for Vandivier not to object on hearsay grounds to the admission of the out-of-court statements made by V.V. and Billy to Downing at the outset of his investigation. Vandivier testified that he made the decision not to object because his strategy was to lay out the multiple inconsistencies in the various statements V.V. and Billy had made and thus to convince the trial judge that neither of them should be credited. The Indiana Court of Appeals, of course, found that this was a reasonable if unsuccessful strategy, and that Hinesley was not, in any event, prejudiced by the admission of these statements into evidence. For multiple reasons, the Indiana court’s resolution of this point was not an unreasonable application of Strickland.

First, it bears noting that it has been undisputed throughout this litigation that these out-of-court statements would have been admissible—and, pursuant to defense counsel’s strategy, would have been elicited—along with the other statements that V.V. and Billy made in order to show how their accounts changed over time and thus to impeach their credibility. So it is not Hinesley’s position that the defense should have fought to exclude these statements altogether. Rather, Hinesley’s objection is that by remaining silent as the State introduced these statements through Downing and later Billy, defense counsel allowed the statements into evidence with no limitation, so that the trial judge as the factfin-der could consider them for their truth. Secondarily, Hinesley posits that allowing the State to elicit these statements in the first instance enabled the. prosecution to present the strongest version of its case at the outset of the trial: Downing was able to recount what V.V. and Billy told him about the assault (and indeed Billy’s interview was played in full) without their accounts being subject to cross-examination until they each took the witness stand later in the case. But, again, Hinesléy is not suggesting that the factfinder should never have been exposed to these statements (although he does say that the video recording of Billy’s interview should never have been played); he is arguing that his counsel should not have permitted the statéments to have been elicited by the prosecutor and without limitation on the purposes for which they could be considered.

Second, as the two percipient witnesses, it was a given that both V.V. and Billy would testify in the State’s case and that they would give accounts similar to, if not precisely the same as, the accounts they had given to Downing in their original statements. To be sure, both had wavered in their accounts in advance of trial, with V.V. having recanted her accusation entirely at one point and Billy having disclaimed any memory of what he might have seen. But at their pre-trial depositions, V.V. had repeated her core accusation that Hinesley raped her, and Billy had confirmed what V.V. had told him about that assault. It was a reasonable assumption that they would do so again at trial. So from the defense perspective, there was little to be lost by allowing the State to elicit their original statements. The statements, at worst, would preview (and duplicate) their trial testimony.

Of course, as trial witnesses, both V.V. and Billy would be subject to cross-examination as to the content of their out-of-court statements. Indeed, that was the point of the defense strategy — to open the door to these and all of the other statements the two had made about events and to showcase all of the inconsistencies among them for the judge during cross-examination and argument. Given that their prior statements would be elicited in one way or another, it was not unreasonable for defense counsel to allow the State to elicit them in the first instance.

And with one material exception, V.V. and Billy did not deviate in their trial testimony from the pre-trial statements that are at issue here. To that extent, these statements were simply cumulative of what these two witnesses recounted at trial. The one exception was Billy’s statement (or rather question) to V.V.: “Did I see what I think I saw?” That statement, of course, suggested that Billy had seen V.V. pulling up her pants in the immediate aftermath of the assault (as, indeed, Billy had told Downing he had), and lent an important degree of corroboration to V.V.’s account — assuming it withstood scrutiny. But although Billy made that statement in his videotaped interview with Downing, he thereafter backed away from it. At trial, Billy not only reiterated that he had no recollection of what he may have seen, but admitted that “there’s a good chance that [he] didn’t see anything at all,” Tr. 178, and that he “could have” lied when he told Downing that he had seen something, Tr. 179. If anything, the admission of this statement/question served to highlight the degree to which Billy had backtracked from his initial interview and was unwilling to stand by the veracity of what he had told Downing.

Consistent 'with his declared strategy, counsel did drive home each and every one of the inconsistencies among the statements that V.V. and Billy had made over time. Vandivier advised the judge in “his opening statement that she was “going to hear inconsistent statement after incon-sis[tent] statement,” Tr. 6, and he made good on that promise. His cross-examination of both witnesses was thorough, and in fact, both V.V. and Billy freely acknowledged the differences in the statements they had made over time.

Under these circumstances, we can by no means say that the Indiana Court of Appeals was unreasonable in concluding that counsel’s strategy was not ineffective. Counsel had the benefit of a pre-trial run-through with both V.V. and Billy at their depositions and knew what'the inconsistencies in their statements were and, also, that they would acknowledge them. The risks of allowing the prosecution to elicit their original statements, and without limitation as to the purpose for which those statements could be considered, were low. With the judge serving as the trier of fact, it was unlikely that undue weight would be given to the witnesses’ out-of-court statements as opposed to their in-court testimony. The judge would understand that a witness’s testimony given under oath, in the judge’s presence, and subject to cross-examination is the most relevant substantive evidence and manifestation of his candor, and that his out-of-court statements are principally relevant to the extent they show consistency or inconsistency in the accounts he has given over time. There is no disagreement that the defense had to elicit each of the witnesses’ out-of-court statements in order to expose the significant inconsistencies among those statements; how the statements were elicited ultimately would not have mattered much, if at all, to the factfinder.

Nor did the state court conclude unreasonably that Hinesley suffered no prejudice from his counsel’s decision not to object or attempt to limit the use of the statements, even assuming the strategy was faulty. As we have already made clear, there was only one instance in which the out-of-court statements were not cumulative of the trial testimony of V.V. and Billy, and that was in Billy’s purported question to V.V.: “Did I see what I think I saw?” But as we have already discussed, that question hardly hurt the defense, given Billy’s dual admissions on the witness stand that he no longer recalled what, if anything, he had seen and, more importantly, that he may have lied when he told Downing that he saw V.V. pulling up her pants. Yes, allowing the State to elicit such statements on direct examination of its witnesses (Downing, principally) enabled it to put on a somewhat more straightforward and stronger case at the start of the trial, in the sense that it was able to lay out the case as it was presented to Downing. But any advantage that may have given the State was short-lived, given defense counsel’s relentless cross-examination of both V.V. and Billy as to the significant retractions and inconsistencies in them accounts. In the end, the judge chose to believe V.V. and the account she gave. It strains credulity to think that she might have rendered a different credibility assessment had the defense elicited each of the out-of-court statements as impeachment, on cross-examination, rather than allowing the State to elicit some of these statements in the first instance and without limitation. One may quibble, as Hines-ley does, with the particular words the judge used when she rejected Hinesley’s argument on this point at the post-conviction stage (she said her credibility finding as to V.V. “[wa]s sufficient” to uphold Hinesley’s conviction “regardless of any hearsay' admitted without objection,” R. 14-4 at 60 ¶ 12, rather than saying explicitly that the hearsay did not materially affect her decision), but the clear import of her finding was that V.V.’s credible testimony in court was what was essential to her decision to convict Hinesley. That is what the Indiana Court of Appeals understood the judge to mean, 999 N.E.2d at 987-88, and that is an entirely reasonable interpretation of her finding.

Our discussion .of the vouching question may be brief. Even if we were to agree with Hinesley that there was no plausible strategic reason to allow the vouching statements into evidence, Hines-ley’s ineffectiveness argument would nonetheless fail for want of prejudice. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 (court need not decide whether counsel was ineffective before turning to whether defendant was prejudiced). The two statements — one in court, one out of court — were isolated, were not belabored, were not cited by the State in its closing argument, and were highly unlikely to have influenced the judge’s assessment of guilt. It was no surprise that Downing believed V.V. — the course of his investigation demonstrated that- belief just as clearly as his statement did. If anything, his statement lent itself to the point the defense was making at trial — that Downing too soon accepted V.V.’s account at face value, not realizing that V.V. and Billy were engaged in an illicit relationship and shared an incentive to keep that relationship hidden from the authorities. It was likewise unremarkable that Billy would say he believed V.V., given that the two of them were intimately involved with one another. What would have mattered to the judge in deciding whether to believe V.V. was not the impressions of Downing and Billy but rather the credibility of V.V.’s testimony at trial in the presence of the judge, which is what the prosecutor herself focused on in closing.

Hinesley last contends that the state courts improperly rejected his contention that his counsel was cumulatively ineffective; but we agree with the district court that Hinesley did.not give the state courts a full and fair opportunity to address the claim. See Duncan v. Walker, 533 U.S. 167, 178-79, 121 S.Ct. 2120, 2127-28, 150 L.Ed.2d 251 (2001); Johnson v. Loftus, 518 F.3d 453, 455-56 (7th Cir. 2008). There is no doubt that the claim was presented to the Indiana Court of Appeals, which rejected the claim on its merits. But the relevant question is whether Hinesley fully and fairly presented it to the Indiana Supreme Court in the petition for transfer to that court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732-33, 144 L.Ed.2d 1 (1999). Hinesley’s transfer petition in relevant part focused on the judicial temperance doctrine, which the appellate court had cited as a central reason for rejecting his cumulative ineffectiveness claim. Hinesley argued that the appellate court was wrong as a matter of fact when it invoked the presumption notwithstanding what he perceived as signals from the trial judge, in her opinion denying postcon-viction relief, that she had relied on unob-jected-to hearsay in convicting Hinesley. The problem, for Hinesley, is that although his petition mentioned Strickland in passing, the argument as presented was that the state appellate court wrongly applied a state rule, which is ordinarily not a matter of concern for a federal -habeas court. See Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 861, 178 L.Ed.2d 732 (2011) (per curiam). Compounding the problem is that the transfer petition not only never used the word “cumulative” to distinguish his argument of cumulative prejudice from his arguments of individual ineffectiveness, but in the pertinent section focused solely on the subject of hearsay and said nothing about the multiple other bases for his cumulative argument. In short, Hinesley never presented a discernible argument of cumulative ineffectiveness to the Indiana Supreme Court. The district correctly found that this amounted to a procedural default that precluded federal review of the claim.

III.

We AFFIRM the denial of Hinesley’s petition for a writ of habeas corpus.

      . Oddly, the written summary of V.V.’s exam-¡nation indicated that her hymen was intact. That report was not introduced into evidence at trial, possibly because Hinesley’s trial counsel never saw the report. (Neither the prosecutor nor defense counsel could later recall whether the report had been possessed by the State and produced in discovery.) In this appeal, Hinesley has cited counsel’s apparent failure to obtain a copy of the report— and in any event, his failure to introduce it at trial — not as a freestanding instance of purported ineffectiveness but rather as one of the grounds for his argument of cumulative ineffectiveness.

      . The classification system for felonies in Indiana has since changed.

      . There were certain minor inconsistencies between their original statements to Downing and their trial testimony. For example, at trial, V.V. testified that Hinesley had pulled her pajama pants down during the assault, ' whereas she had told Downing that Hinesley had directed her to pull them down.

      . For example, the transfer petition noted the rejection of Hinesley's argument as to vouching in its procedural summary, but did not mention vouching again in the relevant argument portion of the petition.


author: WILLIAMS, Circuit Judge.

text:
    Gloria Jean SYKES, Plaintiff-Appellant, v. COOK COUNTY CIRCUIT COURT PROBATE DIVISION, et al., Defendants-Appellees.
    No. 15-1781
    United States Court of Appeals, Seventh Circuit.
    Argued April 5, 2016
    Decided September 14, 2016
    Rehearing and Suggestion for Rehearing En Banc Denied October 27, 2016

      Richard M. Varchetto, Attorney, Law Offices Of Richard M. Varchetto, Elm-hurst, IL, for Plaintiff-Appellant.
    Mary Ellen Welsh, Attorney, Office of the Attorney General, Civil Appeals Division, Peter J. Schmiedel, Ronald D. Men-na, Jr., Attorneys, Fischel & Kahn, Amy L. Anderson, Joshua C. Bell, Attorneys, Brenner, Monroe, Scott & Anderson, Ltd., Chicago, IL, for Defendants-Appellees.
    Before WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.

       Judge liana Diamond Rovner did not participate in the consideration of this petition,

   WILLIAMS, Circuit Judge.

Gloria Jean Sykes went to her mother’s probate proceeding to present a motion and brought her service dog, Shaggy. Instead of letting her present her motion, the judge asked her a series of questions about Shaggy, struck her motion, and entered an order barring Shaggy from the courtroom. Gloria argues that she should be able to bring a lawsuit in federal court for denial of reasonable accommodations under the Americans with Disabilities Act. But because the source of her injury is a state court judgment, we lack subject matter jurisdiction to hear her case.

I. BACKGROUND

A. Gloria’s First Federal Lawsuit

This case originates in an earlier guardianship dispute between two sisters over them mother, Mary G. Sykes. Gloria Jean Sykes is Mary’s younger daughter. Carolyn Toerpe, her older daughter, was granted guardianship of Mary in 2009. After losing the state guardianship battle, Gloria filed a lawsuit in 2011 in federal court, alleging that Toerpe, the Cook County Guardian, two participating guardians ad litem, the Cook County Circuit Court, then-Governor Quinn, and the state of Illinois were violating the ADA by refusing reasonable accommodations to her mother. Gloria alleged among other things that the state defendants were depriving her mother of the right to be present at court proceedings and to receive reasonable accommodations in the form of support and consultation with family members. The district court dismissed the lawsuit, finding that if Gloria obtained the relief .she sought, it would be forced to overturn the state court decision granting guardianship to Toerpe, in violation of the Rooker-Feld-man doctrine. It also relied on long-established precedent that federal courts may not intervene in state probate proceedings. We affirmed the dismissal of that lawsuit. M.G.S. ex rel. Sykes v. Toerpe, No. 12-3373, Dkt. 19 (7th Cir. Jan. 9, 2013) (unpublished order).

B. State Probate Proceeding

After losing her federal appeal, Gloria returned to state court, pursuing her fed? eral claims in a “Motion for Reasonable Accommodations,” seeking relief both for herself, and her mother in the probate proceeding. On the day the motion was scheduled for hearing, Gloria went to the Daley Center with her service dog, Shaggy, whom she uses for assistance with her post-traumatic stress disorder. She entered the building without a problem and then went up to the courtroom of Judge Aicha MacCarthy, who was presiding over Mary’s probate case. Gloria alleges that Judge MacCarthy called the case, and then “immediately, angrily, and indifferently” interrogated Gloria about .her need for Shaggy. She also states that the interrogation lasted for several minutes, and at its end, MacCarthy “expelled Gloria and her dog from the courtroom — banned forever.” While it’s unclear what caused Gloria to think the .ban was in perpetuity, the probate record reflects that Judge MacCarthy entered an order striking Gloria’s motion without prejudice and prohibiting Gloria from returning with Shaggy without leave of the court.

C. The Current Lawsuit

Gloria returned to federal court with a new complaint that recycled many of her old claims, but added one that is the focus of today’s decision: she alleged that by banning Shaggy from her courtroom, various state defendants violated Gloria’s rights under the Americans with Disabilities Act (ADA). The district court again dismissed all claims that Gloria asserted on behalf of her mother for largely the same reasons as.the first lawsuit. It then turned specifically to Gloria’s claim regarding Shaggy and concluded that it lacked subject matter jurisdiction to determine if Gloria’s ADA rights were violated because she was denied use of a service animal during court proceedings. First, it held that because Gloria’s claim against the state defendants was inextricably intertwined with the state court order banning Shaggy and striking Gloria’s reasonable accommodation motion, as a federal court, it was barred from hearing the claim under the Rooker-Feldman doctrine. Rooker v. Fidelity Tr. Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Second, it held that it was barred from hearing the claim because it arose out of a state probate proceeding. And finally, it held that it should exercise’ Younger abstention because the proceeding was ongoing and because Gloria had an adequate opportunity to raise her federal claims about Shaggy in state court. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

II. ANALYSIS

On appeal, Gloria only challenges the district court’s dismissal of her ADA claim pertaining to the use of Shaggy in Judge MacCarthy’s courtroom. We review a district court’s dismissal for lack of subject matter jurisdiction de novo, accept as true all facts in the complaint and draw all reasonable inferences in the plaintiffs favor. G & S Holdings, LLC v. Cont’l Cas. Co., 697 F.3d 534, 539 (7th Cir. 2012). We may affirm a dismissal for lack of jurisdiction on any ground that the record supports. Sladek v. Bell Mgmt. Pension Plan, 880 F.2d 972, 979 (7th Cir. 1989).

A. ADA Accommodations for Service Animals

Before reaching the question of jurisdiction, it helps to understand the substantive footing of Gloria’s claim. Title II of the Americans with. Disabilities Act prohibits public entities (which includes instrumentalities of state and local governments, like courthouses) from discriminating against qualified individuals with disabilities. See 29 U.S.C. §§ 701 et seq., 42 U.S.C. § 12132. The ADA’s accommodation mandate reflects enforcement efforts by Congress to ensure citizens’ due process rights under the Fourteenth Amendment. Tennessee v. Lane, 541 U.S. 509, 523, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004). In Lane, the Supreme Court considered the Title II claims of paraplegic litigants and members of the public who were forced to crawl up stairs to access a courtroom, and held that Congress was authorized to, and did, abrogate Tennessee’s right to sovereign immunity in defending against the claims by passing Title II of the ADA. Id. at 531, 124 S.Ct. 1978.

With a few exceptions, Title II requires public entities to permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go. 28 C.F.R. § 35.136(g). Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Id. at § 35.104. “Emotional support animals” are not considered service animals which fall under Title II’s mandate. Id. In situations where it is not obvious if a dog is a service animal, employees of a public entity are permitted to ask if the dog is a service animal required because of a disability, and what work or task the dog has been trained to perform. 28 C.F.R. § 35.136(f). They are not permitted to request documentation for the dog, require the dog to demonstrate a task, or inquire about the nature of the person’s disability. Id.

The basis of Gloria’s ADA claim on appeal is that Judge MacCarthy and by extension, the Probate Division of Cook County Circuit Court, asked impermissible questions to bar Shaggy from the courtroom, and denied Gloria reasonable accommodations by banning Shaggy. Gloria’s complaint claims that Shaggy is a service dog, and we will proceed on that assumption for the purposes of our analysis. Because Shaggy was banned from the courtroom, Gloria claims she was effectively excluded from participating in and benefiting from services of the courthouse. This case differs from a Lane-style claim of denial of access to a courthouse, because her exclusion from the courthouse stemmed from a judicial order, not from a courthouse policy or practice.

B. District Court Lacked Subject Matter Jurisdiction

With her claim now framed, we must determine if the district court had jurisdiction over Gloria’s claim. At the time of the district court’s decision, Mary’s probate proceeding was ongoing. As a result, the district court applied Younger abstention, the principle that federal courts should abstain from interfering with ongoing state judicial proceedings that are judicial in nature, involve important state interests, provide an adequate opportunity to raise federal claims, and do not contain special circumstances that would make abstention inappropriate. See Stroman Realty, Inc. v. Martinez, 505 F.3d 658, 662 (7th Cir. 2007). Between the district court’s rul-mg and this appeal, Mary died,- so her probate proceeding, is terminated. As a result of Mary’s death, Younger is now a moot question because there is no ongoing state proceeding for us to disturb. -

The district court also invoked the probate exception to federal subject matter jurisdiction, which precludes federal courts from interfering with persons and property that are in the custody of a state probate court. Marshall v. Marshall, 547 U.S. 293, 311-12, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006). The rationale for the rule is that in situations where a state court controls the subject of a custody battle or the property in a decedent’s estate, another court should not “be permitted to elbow its way into such, a fight,” particularly because state courts are assumed to have developed a core proficiency in probate and domestic relations matters. Struck v. Cook Cty. Pub. Guardian, 508 F.3d 858, 860 (7th Cir. 2007). But'the exception does not bar federal courts from exercising otherwise proper jurisdiction, Marshall 547 U.S. at 312, 126 S.Ct. 1735, and we have cautioned that as a judicially created exception to the statutory grant of diversity jurisdiction, the probate exception should be narrowly construed, Storm v. Storm, 328 F.3d 941, 944 (7th Cir. 2003). In determining if the probate exception applies to an issue that is ancillary to a core probate matter, we look to the policies animating the exception, including consistency of legal decisions within a state court system, judicial economy, and the relative expertise of state judges as specialists in probate issues. Id.

We are not convinced that applying the probate exception was appropriate under. the above analysis, The decision preventing Gloria from bringing her service animal into the courtroom has nothing to do with probate law.- A probate court is in no better position to determine a litigant’s entitlement to a reasonable accommodation than any other court. And there is nothing about bringing her ADA claim to federal court which would create dissonance in probate or domestic relations . rulings across Cook County. In short, the injury complained of here bears no relationship to probate law, other than that it happened to take place in a probate courtroom. We find this type of coincidental connection to a probate matter unpersuasive as a ground for stripping federal courts of their power to hear federal claims.- So we do not find the probate exception a persuasive ground for dismissing the case.

With those theories out of the way, we turn finally to the district court’s conclusion that it lacked jurisdiction under the Rooker-Feldman doctrine. We start by noting that Gloria had at least three avenues to overturn Judge MacCarthy’s order in state court. She could have (1) sought mandamus in the Illinois Supreme Court, see III. Const. 1970, art. VI, § 4(a); People ex rel. Birkett v. Konetski, 233 Ill.2d 185, 330 Ill.Dec. 761, 909 N.E.2d 783, 791 (2009), (2) pursued an interlocutory appeal in a state appellate court under Illinois Supreme .Court. Rule 307, or (3) filed a motion for a supervisory order under Illinois Supreme Court Rule 383. Instead of pursuing these avenues, Gloria went to federal court. . .

Lower federal courts are not vested with appellate authority over state courts. Rooker, 263 U.S. at 416, 44 S.Ct. 149; Feldman, 460 U.S. at 486, 103 S.Ct. 1303. -The Rooker-Feldman doctrine prevents, lower federal courts from exercising jurisdiction over cases brought by state court losers challenging state court judgments rendered- before the district court proceedings commenced. Exxon-Mobil v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). The rationale for the doctrine is that no matter how wrong a state court judgment may be under federal law, only the Supreme Court of the United States has jurisdiction to review it. Brown v. Bowman, 668 F.3d 437, 442 (7th Cir. 2012). Claims that directly seek to set aside a state court judgment are de facto appeals which trigger the doctrine. Taylor v. Fed. Nat’l Mortg. Ass’n, 374 F.3d 529, 532 (7th Cir. 2004). But even federal claims which were not raised in state court, or that do not on their face require review of a state court’s decision, may still be subject to Rooker-Feldman if those claims are inextricably intertwined with a state court judgment.' Id. The “inextricably intertwined” determination hinges on whether the federal claim alleges that the injury was caused by the state court judgment, or alternatively, whether the federal claim alleges an independent prior injury that the state court failed to remedy. Id. Because Rooker itself arose from a constitutional challenge to the state court’s use of procedures, the Rooker-Feldman doctrine applies to procedural state court rulings as well as substantive ones: See Harold v. Steel, 773 F.3d 884, 887 (7th Cir. 2014). Further, we have held that interlocutory orders entered prior to the final disposition of state court lawsuits are not immune from the jurisdiction-stripping powers of Rooker-Feldman. Id. at 886.

But Rooker-Feldman has its limits, and federal jurisdiction does not terminate automatically on the entry of judgment in a state court. Exxon-Mobil, 544 U.S. at 293, 125 S.Ct. 1517. The doctrine occupies “narrow ground” and is “confined to the cases of the kind from which the doctrine acquired its name: cases brought by state-court losers ... inviting district court review and rejection of [those state court’s] judgments.” Id. at 284, 125 S.Ct. 1517. In order for the doctrine to apply, the state court judgment must be “inextricably intertwined” with the federal court lawsuit. In other words, there must be no way for the injury complained of by a plaintiff to be separated from a state court judgment. See id. at 293, 125 S.Ct. 1517; Commonwealth Plaza Condo. Ass’n v. City of Chi, 693 F.3d 743, 746 (7th Cir. 2012); see also Kelley v. Med-1 Solutions, LLC, 548 F.3d 600, 607 (7th Cir. 2008). So, for example, a state court loser is not barred from targeting a statute which has been construed against her in a state court decision, so long as she does not seek to overturn the state court judgment itself. Skinner v. Switzer, 562 U.S. 521, 532-33, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011). And the Supreme Court has warned not to confuse Rooker-Feldman with claim preclusion: “If a federal plaintiff present[s] some independent claim that denies a legal conclusion that a state court has reached in a case to which he was a party ..., then there is jurisdiction, and state law determines whether the defendant prevails under principles of preclusion.” Exxon, 544 U.S. at 293, 125 S.Ct. 1517. In a similar vein, non-parties are not barred from bringing a challenge to a state court judgment simply because they could be considered in privity with a party to the judgment. Lance v. Dennis, 546 U.S. 459, 466, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2009).

Gloria argues that the allegations in her complaint are independent from Judge MacCarthy’s order because they focus on Judge MacCarthy’s wrongful conduct — interrogating Gloria about Shaggy and banning Shaggy from the courtroom — and not her order denying Gloria’s motion for reasonable accommodations. We addressed a similar argument in Kelley v. Med-1 Solutions, where the plaintiff argued it was not the state court’s award of attorneys’ fees which caused his injury, but rather the attorneys’ preceding fraudulent misrepresentations which led to the. erroneous award. 548 F.3d at 605. We. found that we lacked jurisdiction to hear the claim because in order to find that the defendants’ underlying representations violated the law, we would be forced to determine that the state court, which evaluated those representations, erred in its judgment granting the attorneys’ fees. Id. Similarly here, the result of Judge MacCarthy’s alleged misconduct was a state court order explicitly banning Gloria’s service animal from her courtroom. If the judge violated the ADA by engaging in impermissible ■ questioning or wrongly banning Shaggy from her courtroom, those alleged violations were also the basis of her order,

In her response to the defendants’ motion to dismiss, Gloria attached an affidavit advancing a new theory that she was not attacking the order but instead a policy, practice or custom of ADA violations by Judge MacCarthy. She tried again to frame her challenge as distinct from the previous order banning Shaggy, by pointing to fresh violations when she returned to the courtroom with Shaggy a few weeks after the order was entered. Her affidavit included allegations that Judge MacCarthy dismissed Shaggy as “just a pet” and accused Gloria of not having a disability. This information was ostensibly offered to show that Gloria suffered a series of violations, and the order was simply incidental to them. But even if we could consider the affidavit, it also states that the judge expressed anger because she did not follow the previous order, which only reinforces the conclusion that the initial order was a direct result of the judge’s preliminary inquiry and subsequent ban. In sum, to provide any relief in response to the harm stemming from Judge MacCarthy’s acts, her court order banning Shaggy would need to be set aside. The proper way to challenge the court order was through state court avenues.

Rooker-Feldman will not always bar a litigant from bringing claims against a state court for denial of reasonable accommodations. If the Daley Center had a policy of banning service animals, Gloria’s claim may have survived dismissal. Lane comes to mind as an example of an injury that occurred as a result of a litigant’s participation in a judicial proceeding, but was not inextricably intertwined with it. But when as in this case the injury is executed through a court order, there is no conceivable way to redress the wrong without overturning the order of a state court. Rooker-Feldman does not permit such an outcome.

III. CONCLUSION

For the foregoing reasons, we Affirm the district court’s' dismissal for lack of subject matter jurisdiction.


author: KANNE, Circuit Judge.

text:
    IN RE: Christopher A. TRENTADUE, Debtor, Christopher A. Trentadue, Plaintiff-Appellant, v. Julie Gay, Defendant-Appellee.
    No. 15-3142
    United States Court of Appeals, Seventh Circuit.
    Argued February 11, 2016
    Decided September 14, 2016

      Christopher Keleher, Attorney, Keleher Appellate Law Group, Chicago, IL, for Debtor-Appellant.

      Michael P. Dunn, Gregory M. Schrieber, Attorneys, Kerkman & Dunn, Milwaukee, WI, for Appellee.
    Mary B. Grossman, Pro Se.
    Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.

      . Congress only recently codified the term "domestic support obligation” in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L, No. 109-8, 119 Stat. 23; however, the “term 'DSO' ,.. was developed from the definition of a nondis-chargeable debt for alimony, maintenance, and support in former Section 523(a)(5). Accordingly, case law interpreting the former version of Section 523(a)(5) remains relevant and persuasive here.” In re Papi, 427 B.R. 457, 462 n.5 (Bankr. N.D. Ill. 2010) (citations omitted).

   KANNE, Circuit Judge.

Plaintiff and debtor Christopher A. Trentadue and his wife divorced in 2007, and as part of that judgment, Trentadue and his then ex-wife received joint legal custody of the couple’s six children. This arrangement proved unworkable and resulted in protracted litigation over custody and child support. The Wisconsin state court overseeing the litigation determined that Trentadue’s conduct resulted in excessive trial time to resolve the case and awarded Trentadue’s ex-wife $25,000 in attorney’s fees for “overtrial.” The state court directed Trentadue to make the payment directly to his ex-wife’s attorney, Defendant Julie M. Gay.

Trentadue never paid Gay. Instead, he filed a chapter 13 bankruptcy petition. Gay countered by filing a $25,000 claim for the unpaid overtrial award and classified it as a nondischargeable, domestic support obligation entitled to priority. Trentadue objected that the obligation was imposed as a punishment and therefore could not be a domestic support obligation, but the bankruptcy court overruled his objection. The district court agreed with the bankruptcy court after Trentadue challenged its ruling. We find no error and affirm the decision of the district court.

I. Background

This case traces its roots to a May 2010 filing made by Trentadue’s ex-wife to modify placement and child support related to one child. The filing ignited a contentious, three-year legal dispute over custody, placement, health insurance, and child support that involved substantial motion practice, requests for contempt findings, engagement of experts, and evidentiary hearings. The Wisconsin state court handling the case provided its oral decision on pending matters in November 2012 and entered its Findings of Fact and Amended Order in May 2013.

It was in this May 2013 order that the state court determined that Trentadue committed “significant over-trial” and ordered that he “contribute $25,000 toward [his ex-wife’s] attorney fees.” In support of its finding, the state court observed the following: (1) Trentadue “expended a great deal of trial time” pursuing the issue of where to send the children to high school; (2) the experts engaged by Trentadue and a “significant number of witnesses called” on his behalf “undercut his position;” (3) “[h]e raised issues that did not need to be addressed” that “protracted the trial well beyond what was necessary;” and (4) he “raised repeatedly” the same issues to the court. In sum, the court determined “Tren-tadue’s desire to ‘win’ and control resulted in additional legal fees for [his ex-wife].” The state court directed Trentadue to pay the $25,000 directly to his ex-wife’s lawyer, Gay. In the same order, the trial court memorialized its findings with regard to custody, placement, health insurance, and child support, including evaluating each party’s ability to pay. Trentadue appealed the ruling to the Wisconsin Court of Appeals.

Meanwhile, in July 2013, Trentadue filed a petition for bankruptcy under Chapter 13. Gay countered by filing a claim for $25,000 and labeled it a priority, non-dis-chargeable domestic support obligation (“DSO”) under 11 U.S.C § 507(a)(1). Tren-tadue objected to the claim’s classification as a DSO and argued it should be considered non-priority and unsecured because the trial court ordered the payment as punishment, not support.

Before the bankruptcy court resolved Trentadue’s objection, the Wisconsin Court of Appeals issued its decision in November 2014 in which it affirmed the trial court’s order, including the overtrial award. Tren-tadue appealed to the Wisconsin Supreme Court, but it declined to hear his case.

In March 2015, the bankruptcy, court overruled Trentadue’s objection and allowed Gay’s claim to be classified as a DSO. The bankruptcy court determined that Trentadue’s claim was not a punishment but was instead meant to “compensate for the harm he had done” to the children in the form of an “expensive custody litigation” that would have a negative financial and emotional impact on them. In re Trentadue, 527 B.R. 328, 334-35 (Bankr. E.D. Wis. 2015). Trentadue appealed the bankruptcy court’s decision to the district court, which affirmed the bankruptcy court’s ruling. This appeal followed.

II. Analysis

Trentadue advances two arguments as to why we should reject the classification of his $25,000 debt to Gay as a DSO: (1) the overtrial award can never be a DSO because it is not payable to his spouse, former spouse, child, or a caregiver and (2) the overtrial award was intended to be a punishment and not in the nature of support. We address each argument in turn.

A Identity of the Payee

Trentadue argues that under 11 U.S.C. § 101(14A), the identity of the payee is relevant to determining whether a debt may be considered a DSO. Trentadue is correct. For a debt to qualify as a DSO, it must satisfy all four requirements under § 101(14A), including the requirement that the debt be “owed to or recoverable by— (i) a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian, or responsible relative; or (ii) a governmental unit.” Trentadue argues that Gay’s debt is dischargeable because it is payable to her, not to Trentadue’s spouse, former spouse, child, or caregiver.

However, this issue is not relevant to this appeal. Trentadue did not raise this argument before the bankruptcy court or the district court and therefore did not preserve it for appeal. As we have explained:

It is axiomatic that issues and arguments which were not raised before the district court cannot be raised for the first time on appeal, except in rare cases involving a jurisdictional question or if justice demands flexibility.... To reverse the district court on grounds not presented to it would undermine the essential function of the district court.

Boyers v. Texaco Ref. & Mktg., Inc., 848 F.2d 809, 811-12 (7th Cir. 1988) (internal quotation marks and citations omitted). We have applied this rule in' the bankruptcy context, In re Kroner, 953 F.2d 317, 319 (7th Cir. 1992), and see no reason why it should not exclude Trentadue’s argument from consideration here. Trentadue has not demonstrated that this question is one of jurisdiction or how our application of the rule would impose a grave injustice upon him. This argument was available to him when he objected to Gay’s claim, and the statute and law have remained static. Trentadue elected not to pursue this possible avenue of relief. We decline to excuse our requirement and undermine “the efficiency, fairness, and integrity of the judicial system for all parties.” Boyers, 848 F.2d at 812.

B. Classification of the Overtrial Award

We turn now to the argument that was raised before the bankruptcy and district courts—that the overtrial award was in the nature of punishment and not “support” under § 101(14A).

There is a dispute over the standard we should employ when reviewing the bankruptcy court’s classification of Gay’s debt. Trentadue contends that we should apply de novo review to the “lower courts’ findings that the state court’s intent in awarding attorney’s fees was not punishment and that attorney’s fees for overtrial is in the nature of support.” (Appellant Br, 10 (emphasis added).)

Contrary to Trentadue’s contention, however, we do not apply de novo review to the findings and determinations of intent in the bankruptcy setting, as both are necessarily fact questions. See In re Sheridan, 57 F.3d 627, 633 (7th Cir. 1995). Rather, we review such fact findings and determinations for clear error. Id. De novo review, on the other hand, is reserved for the district and bankruptcy courts’ legal conclusions, which would include decisions regarding the proper construction of a statute, Meyer v. Rigdon, 36 F.3d 1375, 1378 (7th Cir. 1994), and whether an attorney can be a DSO payee under § 101(14A) in the first instance.

As' we pointed out, Trentadue has failed to preserve this latter argument for appeal. The standard we apply then to the bankruptcy court’s classification determination is clear error. “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake bas been committed.” In re Thirtyacre, 36 F.3d 697, 700 (7th Cir. 1994) (internal quotation marks omitted).

DSOs are exempt from discharge in bankruptcy, see 11 U.S.C. §§ 1328(c)(2), 523(a), and entitled to priority, 11 U.S.C. § 507(a)(1)(A). As discussed above, four requirements must be shown for a debt to be considered a DSO under the bankruptcy code. See § 101(14A). Only one of those four requirements is at issue here, and it requires that for a debt to be considered a DSO, it must be “in the nature of ... support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated.” § 101(14A)(B). Every circuit, including ours, that has actually confronted this question has recognized that attorney fee awards can constitute “support” under the bankruptcy code. Eden v. Robert A. Chapski Ltd., 405 F.3d 582, 588 (7th Cir. 2005); In re Rugiero, 502 Fed.Appx. 436, 439 (6th Cir. 2012) (collecting cases).

Determining whether an attorney fee award is “in the nature of ... support” is a question of federal bankruptcy law, not state law. In re Reines, 142 F.3d 970, 972 (7th Cir. 1998). As such, we are “not bound by the labels attached to the obligation” under state law. Id. Rather, we employ a functional approach that “look[s] beyond the language of a[n award] to the intent of the parties and to the substance of the obligation.” In re Goin, 808 F.2d 1391, 1392 (10th Cir. 1987).

For our purposes here though, we must look to the intent of the state court in rendering its judgment and fee award, as there is no settlement agreement between the parties at issue. See Cummings v. Cummings, 244 F.3d 1268, 1266 (11th Cir. 2001) (“[T]he bankruptcy court should have examined the intent of the divorce court before making a determination that no portion of the equitable distribution was in the nature of support.”). We analyze the following three factors to determine the intent of a state court imposing a judgment in a family-court- setting: “(1) the language and substance of [a judgment] in the context of the surrounding circumstances, using extrinsic evidence if necessary; (2) the parties’ financial circumstances at the time of [the judgment]; and (3) the function served by an obligation at the time of [the judgment].” 9D Am. Jur. 2d Bankruptcy § 3646 (2016) (citing In re Gianakas, 917 F.2d 759 (3d Cir. 1990)).

In our analysis, however, we remember that “exceptions to discharge are to be [construed] strictly against a creditor and liberally in favor of the debtor.” In re Morris, 223 F.3d 548, 552 (7th Cir. 2000) (internal quotation marks omitted). However, the underlying policy of the provision exempting DSOs from discharge “favors enforcement of familial support obligations over a ‘fresh start’ for the debtor.” In re Miller, 55 F.3d 1487, 1489 (10th Cir. 1995).

Turning to the first factor, the language from the state court order makes clear that its intent in making the overtrial award was to compensate Trentadue’s ex-wife’s for “additional legal fees” she incurred as a result of Trentadue’s “desire to “win’ and control” the proceedings. As noted earlier, those proceedings involved issues of custody, placement, health insurance, and child support. In ruling on the child support issue, the state court had before it Trentadue and his ex-wife’s gross monthly incomes as well as their employment situations, and therefore, a rough understanding of each party’s financial picture.

An inference can be drawn from these facts that the state court’s intent in ordering the overtrial award was to ensure its handiwork in determining that the couple’s children had adequate financial support was not disturbed by Trentadue’s scorched-earth approach to the litigation.

Further supporting this conclusion is that the state court heard testimony regarding the legal fees Trentadue’s ex-wife incurred and had before it an affidavit detailing those'fees when it made the over-trial award. The affidavit provided that Trentadue’s ex-wife incurred $49,575 in -legal fees. The $25,000 overtrial award was not untethered to the harm Trentadue wrought upon his wife and children’s financial position. Indeed, the state court explicitly stated that it was “satisfied” that $25,000 in fees “represented] approximately half of what the totality of'[Trenta-due’s ex-wife’s] legal fees are or will be, and that essentially they were generated because of [Trentadue’s] response and handling of this case.” Trentadue v. Trentadue, No. 2013AP1479, 2014 WL 4999456, at *4 (Wis. Ct. App. Oct. 8, 2014). Calculating the actual cost of the legal fees incurred further demonstrates the restorative nature of the overtrial award and the effort undertaken by the state court- to further ensure that Trentadue’s children were not harmed by his actions.

Trentadue argues that we should take a narrow view of the reason for why the state court imposed the order. According to Trentadue, the overtrial award was meant purely to punish him, which is evidenced by the court’s extensive discussion of his problematic litigation tactics and behavior that could be characterized as “a classic case of contempt.” He also advances the theory that the state court’s overtrial order concerned only issues “relating to educational and medical decision-making— not custody.” (Appellant Br. 20.)

Trentadue’s view of the state court order is far too narrow. When we look at the words of a judgment and order, we look at the entire order and construe that judgment as a ivhole to determine the court’s intent. To his first point, the fee award is plainly not punitive. After discussing the relative financial positions of the parties, the state court here took into account how much Trentadue’s ex-wife’s legal fees were and split those fees in half. Such a judicial act has all the hallmarks of a compensatory award meant to put Tren-tadue’s wife and his children in the same place they would have been had Trentadue not pursued his overly litigious course. If the state court award were truly “punitive,” it would have imposed a fee separate and unrelated to his wife’s legal fees and ordered them paid to the court. Cf. Lightspeed Media Corp. v. Smith, No. 15-2440, 830 F.3d 500, 508-09, 2016 WL 3905605, at *6 (7th Cir. July 19, 2016) (explaining that criminal contempt is “punitive” in nature and “meant to vindicate the authority of the court.” (internal quotation marks omitted)).

As to his contention that the fee award was ordered only because of his overzealous pursuit of issues related to education and medical decision-making, the order itself undermines this position. The state court found that he “raised issues that did not need to be addressed,” which “protracted the trial well beyond what was necessary.”, Similarly, the court observed that Trentadue “raised repeatedly” the same issues to the court. The state court did not tie these findings to any specific issue in the litigation,. and therefore, we will not read them as limited to the issues of education and medical decision-making. Rather, we read them as general comments about Trentadue’s overall approach to this litigation, which, as discussed, involved issues of custody and child support.

Trentadue argues we should rely on In re Lopez, 405 B.R. 382 (Bankr. S.D. Fla. 1998) and Estate of Mayer v. Hawe, 303 B.R. 375 (E.D. Wis. 2003) for the proposition that an award of attorney’s fees in a family-law dispute does not automatically qualify as a DSO. While we do not disagree with this proposition, both cases do little to demonstrate that the bankruptcy court here committed a clear error in finding the fee award here was a DSO. In Lopez, the bankruptcy court determined that a state court’s order requiring the husband to pay attorney’s fees in connection with a dissolution proceeding was not a DSO. In reaching this determination, however, the bankruptcy court observed that the state court order provided the “award of attorney fees and costs in favor of the former Husband is based upon and supported by the bad faith litigation misconduct of the former Wife, and is not based upon the respective wages or ability of the parties to pay.” In re Lopez, 405 B.R. at 385. The Lopez court heavily relied on this fact. The state court here, however, provided no such explicit disclaimer with its overtrial award. Instead, it imposed the award of attorney’s fees in conjunction with its evaluation of the parties’ financial situations.

Similarly, Mayer is also of no assistance. There, the issue decided in the state court was the possible removal of a guardian and the terms of a guardianship, and the fees imposed on the offending litigant related to the “inefficient and wasteful use of limited judicial resources,” which also caused “the Ward and Guardian to incur unnecessary and repeated expenses and attorney fees, serving no apparent legitimate purpose.” 303 B.R. at 376 (internal quotation marks omitted). The district court determined the bankruptcy court erred in determining the'debt was a DSO because the* “probate court’s order had nothing to do with” support and “was meant to sanction her for initiating improper litigation” Id. at 379. Unlike Mayer, the overtrial order here is intertwined with issues related to financial support, including child support and health insurance. As discussed above, the obvious inference that can be drawn from the state court’s order is that it was taking a holistic view of the couple’s financial position and making sure that its distribution of child support was not undermined by the costly legal tactics employed by Trentadue.

As for the second factor, Trentadue contends that the state court “ignored [Tren-tadue’s] ability to pay.” (Appellant Br. 15.) This assertion is simply not borne out by the record. As the bankruptcy court observed, the state court detailed Trentadue and his ex-wife’s “comparative economic circumstances.” In re Trentadue, 527 B.R. 328, 334 (Bankr. E.D. Wis. 2015). That review included a discussion of their gross monthly income, how much child support Trentadue had paid in the past, and the steadiness of each party’s employment.

Another element of the state court’s order suggesting it took the parties’ financial situation into account is that it ordered Trentadue to make the overtrial award payment in one lump sum. While Trenta-due contends this fact does not support an inference of support (in fact, he believes it makes the award more punitive in nature), we have a different view. A more plausible inference from the state court’s order is that it knew Trentadue and his ex-wife’s financial situation, and that his ex-wife may not be able to afford to pay a $50,000 legal bill. So, instead of spreading the costs of the unnecessary fees out over several months like a traditional support payment, the state court imposed the same burden on Trentadue that his ex-wife faced in paying her attorneys for the needless litigation. And, if the bankruptcy court were to have discharged Trentadue’s debt, then his ex-wife may still have been responsible for the fee award under a quantum meruit theory. See In re Kline, 65 F.3d 749, 751 (8th Cir. 1995) (analyzing the same concern).

Finally, we turn to the function of the obligation, which in this case is the overtrial award. Trentadue contends the function of any overtrial award in Wisconsin is to punish the litigant for an “unreasonable approach to litigation.” (Appellant Br. 14 (quoting In re Attorney’s Fees in Yu v. Zhang, 248 Wis.2d 913, 637 N.W.2d 754, 760 (Wis. Ct. App. 2001))). But as Trenta-due himself recognizes, the court in Zhang explained that the • award “furthers two objectives, providing compensation to the overtrial victim for fees unnecessarily incurred and deterring unnecessary use of judicial resources.” Id. (citations omitted) (emphasis added). 'So, it is not meant to just “punish;” rather, it is intended to be restorative, too. In fact, the Zhang opinion does not use the word “punish” once in the opinion, nor does it úse the word “punitive.”

We need not, however, get bogged down in labels or characterizations regarding how a state law classifies a particular debt, In re Goin, 808 F.2d at 1392, and must instead focus on the function intended by the state court in imposing the debt. See Cummings, 244 F.3d at 1266. Here, the bankruptcy court determined the following regarding the function of the award:

[T]his award was directly related to his unnecessarily protracted litigation over the welfare of his children and the detrimental effect of his conduct on them. The purpose was to compensate for the harm he had done, but it was not punishment per se. .

In re Trentadue, 527 B.R. at 334. Later, the bankruptcy court further expounded upon what it believed to be the harm suffered by the children, stating that “[w]hile the children’s mother may be a better provider than the debtor, taking on expensive custody litigation will invariably have an adverse effect [sic] on the children, both financially and emotionally.” Id. at 335.

There was no error in finding that the state court intended to remedy the financial harm caused by Trentadue’s conduct in the litigation, which, - as we have repeatedly stated, involved custody and child support issues. Under these circumstances, the fee award is in the nature of support.

Trentadue attempts to circumvent this conclusion by directing us to the Eighth Circuit’s decision in Adams v. Zentz, 963 F.2d 197 (8th Cir. 1992), where it reversed the district court and approved the. bankruptcy court’s conclusion that a fee award was not a support obligation because it focused on the mother’s conduct toward the .father. There, the Eighth Circuit based its decision on whether the nature of .the custody action at issue focused on the child’s health .or well-being, and it determined that it did not. Id. at 199-200.

Zentz is-inapposite. Looking at the order as a whole, the state court judge was focused almost entirely on the welfare of Trentadue’s children, including issues related to education and health insurance. And, of course, there was extensive discussion of the support obligations. While it is true that the court did discuss Trentadue’s inappropriate conduct, it only did so in the context of justifying the imposition of a restorative award it imposed to compensate for the harm done to his ex-wife and children’s financial position..

Trentadue’s reliance on In re Lowther, 321 F.3d 946 (10th Cir. 2011) is also misplaced. There, the Tenth Circuit observed that “unusual circumstances” justified a bankruptcy court’s determination that a fee award warranted discharge. The debt- or in Lowther had $893 in monthly income and a child support obligation of $167 per month. The Tenth Circuit determined that forcing him to pay the $9,000 fee award “would essentially negate the support payments awarded by the state court for at least five years and would clearly affect her ability to financially support the child.” Id. at 949.

Trentadue’s financial situation here is not so bleak — his income ranged between six and seven thousand dollars a month. Further, the bankruptcy court had all the facts concerning Trentadue’s financial situation before.it and determined that similar “unusual circumstances” were not present. That was not clear error.

Accordingly, we find that the district court did not err in approving the bankruptcy court’s determination that the Gay’s fee award was a DSO.

III. Conclusion

For the foregoing reasons, the judgment of the district court is AFFIRMED.

      . The bankruptcy court did not disagree with this proposition either.