Bernel v. Bernel

930 N.E.2d 673, 2010 Ind. App. LEXIS 1376, 2010 WL 2963015
CourtIndiana Court of Appeals
DecidedJuly 29, 2010
Docket46A03-0911-CV-511
StatusPublished
Cited by15 cases

This text of 930 N.E.2d 673 (Bernel v. Bernel) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bernel v. Bernel, 930 N.E.2d 673, 2010 Ind. App. LEXIS 1376, 2010 WL 2963015 (Ind. Ct. App. 2010).

Opinion

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Elizabeth Bernel ("Wife") appeals the dissolution court's denial of her motion to enforce settlement agreement and request for injunctive relief in this post-dissolution action against her former husband, Jeffrey Bernel ("Husband"). Wife presents a single dispositive issue for our review, which we restate as whether the dissolution court erred when it denied her motion to enforce the parties' settlement agreement. We hold that Husband breached the settlement agreement and that, while the dissolution court did not abuse its discretion when it denied Wife injunctive relief, Wife is entitled to a money judgment, including pre-judgment interest, for her damages.

We affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

Husband and Wife were married when Wife filed a petition for dissolution of the *676 marriage in 2006. The parties negotiated a Settlement Agreement ("the Agreement"), which the dissolution court approved and incorporated into the final de-eree, entered on April 1, 2008. The Agreement included the following relevant provisions:

14. Wife shall receive Nine Hundred Fifty Thousand Dollars ($950,000.00) in marketable securities from the JP Morgan Private Bank account, account ending 9006. Wife shall select the securities she is to receive from the JP Morgan Private Bank portfolio. Any and all remaining securities maintained through JP Morgan Private Bank, account ending 9006, shall be Husband's sole and separate property.
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18. The parties agree to execute any and all documents necessary to effectuate the terms of these transfers or assignments within sixty (60) days of the entry of the Summary Dissolution Decree in this matter.
* * *
28. Husband shall assume and timely satisfy any and all debt affiliated with the JP Morgan Line of Credit, account ending in 9006 and shall hold Wife harmless therefrom.

Appellant's App. at 108, 105.

When Wife attempted to transfer securities from the JP Morgan Private Bank account designated in Paragraph 14 of the Agreement ("Account 9006"), her requests were denied and she was told that no such transfer was possible because the account secured a line of credit. Account 9006 and the line of credit were in Husband's name and under Husband's control. Husband knew about the line of credit, but at the time that he signed the Agreement, he believed that he could collateralize the line of credit using another JP Morgan Private Bank account ("Mosaic fund account"). Husband soon determined, however, that the line of eredit could only be secured by Account 9006. 1

Husband had the means to pay off the line of credit, which would have enabled Wife to transfer securities from Account 9006, but Husband did not 2 Accordingly, on September 15, 2008, Wife filed a Motion to Enforce Settlement Agreement and Request for Injunctive Relief. During a hearing on that Motion on May 6, 2009, the dissolution court heard evidence that as a result of a decline in the stock market, the securities held in Ac *677 count 9006, which had been worth $1,029,051.87 when the decree was entered on April 1, 2008, were only worth $736,540.31 a year later, on March 31, 2009. Accordingly, at the time of the hearing, the value of the securities held in Account 9006 was insufficient to satisfy the $950,000 awarded to Wife in Paragraph 14 of the Agreement.

The dissolution court denied Wife's motion to enforce the Agreement and request for injunctive relief in its entirety, finding and concluding in relevant part as follows: 3

Findings of Fact
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8. In Paragraph 14 of the Parties agreement, Wife was to "receive Nine Hundred Fifty Thousand Dollars ($950,-000.00) in marketable securities from the JP Morgan Private Bank account, account ending 9006" and was to select the particular securities she was going to . receive from the portfolio.
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11. Wife testified that she contacted JP Morgan Private Bank in an attempt to transfer the securities from the account ending in 9006 as contemplated in Paragraph 14 of the Property Settlement Agreement, however, all of her requests were denied.
12. Wife was unable to transfer the securities to her account as contemplated because there was a pre-existing line of credit associated with the account ending in 9006 that precluded the transfer of the marketable securities.
13. Each party testified that when the Property Settlement Agreement was executed that they were under the belief that $950,000 in marketable securities could be transferred to Wife as contemplated in Paragraph 14 of their agreement.
14. Husband testified that at the time of the entry of the parties' property settlement agreement that although he was aware of an outstanding line of eredit, he was under the belief that sufficient funds existed in the JP Morgan Private Bank account to collateralize the line of credit.
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24. Wife also argues that Husband failed to "timely" satisfy the JP Morgan Line of Credit, thereby inhibiting or causing Wife's inability to choose and transfer the $950,000.00 in marketable securities as outlined in the property settlement agreement.
25. According to the documents submitted to the court, at the time of the entry of the Verified Property Settle ment Agreement, the JP Morgan Private Bank line of credit had a balance of $527,301.28. As of March 31, 2009, the JP Morgan Private Bank line of credit had a balance of $578,827.74. The total increase on the ... line of credit from April 2008 through March 2009 was $51,026.46.
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28. Currently before the court is a Motion to Enforce Settlement Agreement and Request for Injunctive Relief which was filed by Wife on or about September 12, 2008, requesting the following relief:
A. Husband be precluded from borrowing any further monies from the line of credit with JP Morgan account ending in 9006;
B. Husband either refinance the line of eredit or cash in any and all other securities in order to satisfy the out *678 standing balance of the line of credit in an amount sufficient for Wife to receive a total of $950,000 within thirty (30) days of the date of the court's hearing in this matter;
C. That the value of all investments remaining in the [Mosaic funds account] be released immediately to Wife;
D.

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Cite This Page — Counsel Stack

Bluebook (online)
930 N.E.2d 673, 2010 Ind. App. LEXIS 1376, 2010 WL 2963015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernel-v-bernel-indctapp-2010.