Cavagnetto v. Stoltz
Filing
14
MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on November 4, 2013.(mr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAWN CAVAGNETTO,
)
)
)
)
)
)
)
)
)
Appellant,
v.
WILLIAM STOLTZ,
Appellee.
No. 13 C 3805
MEMORANDUM OPINION AND ORDER
In this action, Dawn Cavagnetto appeals two summary
judgment decisions the bankruptcy court entered in favor of
her ex-husband, William Stoltz, in the adversary proceedings
Stoltz initiated in Cavagnetto’s Chapter 7 bankruptcy case.
Cavagnetto
asserts
that
the
bankruptcy
court
erroneously
concluded: (1) that Stoltz was entitled to summary judgment
on his claims that three divorce-related debts Cavagnetto
owed to him were nondischargeable under Sections 523(a)(5)
and (a)(15) of the Bankruptcy Code, and (2) that Stoltz was
entitled to summary judgment on Cavagnetto’s counterclaim
for indemnity and damages.
affirm
the
Stoltz’s
bankruptcy
claims
but
For the following reasons, I
court’s
judgment
reverse
and
remand
proceedings on Cavagnetto’s counterclaim.
1
with
respect
for
to
further
I.
Because
neither
party
alleges
any
error
in
the
bankruptcy court’s concise summary of the undisputed facts
culled from over a decade of tangled litigation between
them, I excerpt and adopt that summary below by way of
background.1
Stoltz and Cavagnetto were married on September 1,
1996. One child was born of that marriage. The
parties acquired a parcel of real estate located
in Berwyn, Illinois, which, from July 1998 to July
2002, they operated as a rental property (the
“Berwyn Property”).
Stoltz’s mother and step-father, Clare and Fred
Barton
(the
“Bartons”)
loaned
Stoltz
and
Cavagnetto the funds necessary to purchase the
Berwyn Property and took a mortgage to secure
their loan. Payments on the loan of $503.75 per
month came due beginning on April 1, 1996. The
Bartons did not record the mortgage until January
2, 2001.
On January 4, 2000, Cavagnetto filed a petition
for dissolution of marriage. In January 2004, the
state court entered a judgment dissolving the
marriage.
The judgment of dissolution required Stoltz to pay
child support and half of Cavagnetto’s workrelated daycare expenses. It required Cavagnetto
to pay her daycare expenses in the first instance
and then to seek reimbursement from Stoltz for his
half.
1
I have removed the Bankruptcy Court’s embedded record
citations and two explanatory footnotes to eliminate any
confusion with my citations and observations here. I have also
corrected the spelling of Stoltz’s last name, which appears
throughout the bankruptcy court’s decision as “Stolz.”
2
On May 16, 2000, Cavagnetto obtained a court order
allowing her to sell the Berwyn Property. On July
10, 2000, the state court granted Stoltz’s motion
to
vacate
that
order
and
reconsider
the
disposition of the Berwyn Property. Thereafter, in
early 2002, Stoltz sought leave from the state
court to sell the Berwyn Property. On February 1,
2002, the state court granted the motion and
ordered that the Berwyn Property be listed for
sale at fair market value.
Cavagnetto, however, refused to sign the sales
agreement for the Berwyn Property, for which the
state court held her in contempt and ordered her
to pay Stoltz $2,202.50 in attorney’s fees.
In response to Stoltz’s motion to sell the Berwyn
Property, Cavagnetto also filed a lawsuit seeking
to quiet title and alleging that Stoltz and the
Bartons
committed
fraud
in
connection
with
obtaining
the
mortgage.
In
that
lawsuit,
Cavagnetto argued that the Bartons’ mortgage was
invalid. That lawsuit was originally filed in the
chancery division of the state court, but was then
consolidated with the Divorce Proceedings.
After a trial on Cavagnetto’s complaint, the state
court found her complaint baseless and ordered her
to pay Stoltz $1,500.00 as a sanction under
Illinois Supreme Court Rule 137. Upon resolution
of Cavagnetto’s complaint, the Bartons received
$101,292.08 in proceeds from the sale of the
Berwyn Property as payment on their mortgage loan.
On August 23, 2006, the state court held a hearing
on a motion for contempt filed by Stoltz in the
Divorce Proceedings claiming that Cavagnetto had
submitted
false
childcare
invoices
for
reimbursement by Stoltz. The state court found
that Cavagnetto had submitted false invoices and
held her in contempt. On October 2, 2006, the
state court entered judgment on Stoltz’s motion
and found that he had over-paid his share of
daycare expenses in the amount of $5,952.85.
Rather than order Cavagnetto to pay Stoltz this
amount, the state court gave Stoltz a $5,952.85
3
credit
against
future
daycare
expenses.
In
addition to this credit, the state court ordered
Cavagnetto to pay Stoltz and/or his attorneys
$7,375.43 “as and for contempt findings.”
Cavagnetto filed her bankruptcy case on December
31, 2009.
In re Cavagnetto, 2012 WL 6585560 *1-*3 (Bkrtcy. N.D. Ill.
Dec. 11, 2012).
The
bankruptcy
court
concluded
that
the
undisputed
facts entitled Stoltz to summary judgment of his claims that
the following
debts
523(a)(5)
(a)(15)
and
were
of
nondischargeable
the
under
Code:
Bankruptcy
Sections
(1)
the
$2,202.50 award of attorney’s fees relating to Cavagnetto’s
refusal to sign a sales contract for the Berwyn Property
(the “attorney’s fees debt”), (2) the $7,375.43 contempt
award relating to Cavagnetto’s falsification of childcare
receipts (the “contempt debt”), and (3) the $1,500 sanctions
award
relating
to
Cavagnetto’s
“baseless”
suit
to
quiet
title and for fraud (the “sanctions debt”).
In an oral decision announced on April 23, 2013, the
bankruptcy court granted summary judgment in Stoltz’s favor
on Cavagnetto’s counterclaim, which sought indemnification
in
the
amount
of
$5,243.39
(the
amount
she
alleged
her
bankruptcy estate would have had in “surplus” if the Bartons
had not
filed
their
claim
in
4
her bankruptcy
case),
and
damages.
See
id.
at
*5
(summarizing
Cavagnetto’s
counterclaim).
II.
This appeal challenges both of the bankruptcy court’s
summary judgment decisions.
I have jurisdiction pursuant to
28 U.S.C. § 158(a)(1) and review the bankruptcy court’s
grant of summary judgment de novo.
Dick v. Conseco, Inc.,
458 F.3d 573, 577 (7th Cir. 2006).
Summary judgment is
appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“If
judgment
a
party
moving
for
summary
has
properly
supported his motion, the burden shifts to the nonmoving
party to come forward with specific facts showing that there
is a genuine issue for trial.”
Beyrer,
722
F.3d
939,
951
Cincinnati Life Ins. Co. v.
(7th
Cir.
2013)
(internal
quotation omitted).
Cavagnetto
first
challenges
the
bankruptcy
court’s
grant of summary judgment of Stoltz’s claims on the ground
that
the court
improperly
shifted
the
burden
to
her
to
establish that the debts at issue had been satisfied (i.e.,
that Cavagnetto had paid Stoltz), rather than require Stoltz
to establish that the debts remained outstanding.
This
argument misses the mark because payment is an affirmative
5
defense that Cavagnetto was required to plead and prove by a
preponderance of the evidence.
See Fed. R. Bankr. P. 7008
(incorporating Fed. R. Civ. P. 8 by reference).
Because
Cavagnetto did not plead payment in her answer to Stoltz’s
adversary complaint, she may not assert it now as a basis
for reversing the bankruptcy court’s decision.2 See Bank
Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 235 (7th Cir.
1991) (“Failure to plead an affirmative defense results in a
waiver of that defense.”).
Cavagnetto
erroneously
sanctions
next
concluded
debt
were
argues
that
that
the
the
bankruptcy
contempt
non-dischargeable
debt
under
523(a)(5) and (a)(15) of the Bankruptcy Code.3
and
court
the
Sections
I review the
bankruptcy court’s findings of fact for clear error and its
legal conclusions de novo.
In re Berman, 629 F.3d. 761, 766
2
I note that in opposition to Stoltz’s motion for summary
judgment of his claim that another debt Cavagnetto allegedly
owed him was nondischargeable, Cavagnetto presented evidence
that the debt had been satisfied.
Apparently overlooking
Cavagnetto’s failure to plead the affirmative defense of
payment, and finding Cavagnetto’s evidence undisputed, the
bankruptcy court concluded that there was no triable issue
with respect to that debt and entered judgment in Cavagnetto’s
favor. With respect to the debts at issue here, by contrast,
Cavagnetto neither argued, nor offered any evidence to
establish, that the debts had been satisfied, nor does she do
so on appeal.
3
Cavagnetto does not challenge the bankruptcy court’s
conclusion that the $2,202.50 attorney’s fees debt was
nondischargeable under ' 523(a)(15).
6
(7th Cir. 2011) (“Where the trial court correctly states the
law, its determination of whether the facts met the legal
standard
will
erroneous.”).
be
disturbed
only
if
it
is
clearly
Id.
Sections 523(a)(5) and (a)(15) provide:
(a) A discharge under section 727 ... of this
title does not discharge an individual debtor from
any debt—
...
(5) for a domestic support obligation;
...
(15) to a spouse, former spouse, or child of the
debtor and not of the kind described in paragraph
(5) that is incurred by the debtor in the course
of a divorce or separation or in connection with a
separation agreement, divorce decree or other
order of a court of record, or a determination
made in accordance with State or territorial law
by a governmental unit[.]
11 U.S.C. § 523(a)(5) & (a)(15).
A. The $7,375.43 “contempt debt”
The bankruptcy court characterized the state court’s
award of $7,375.43 “as and for contempt” for Cavagnetto’s
admitted falsification of daycare receipts as an award of
“attorney’s fees in favor of Stoltz and/or his attorney in
the [divorce proceeding].”
In holding that the debt was
nondischargeable under ' 523(a)(5), the court explained that
“[m]ost courts have held that awards of attorney’s fees
incurred
by
a
former
spouse
in
divorce
court
are
nondischargeable under § 523(a)(5)…. This is so even where
7
the attorney’s fees in divorce cases were awarded directly
to the attorney and not to the debtor.” In re Cavagnetto,
2012 WL 6585560, at *4-*5 (citing Aldrich v. Papi (In re
Papi), 427 B.R. 457, 463-64 (Bankr. N.D. Ill. 2010).
Cavagnetto
argues
that
the
bankruptcy
court wrongly
concluded that the contempt debt was a “domestic support
obligation” because it was “intended as a punishment for
litigation-related misconduct” and was “not in the nature of
alimony
or
support.”
Appellee’s
Br.
at
10-11
[DN
5].
Cavagnetto cites In re Lopez, 405 B.R. 382 (Bkrtcy. S.D.
Fla. 2009), in which the bankruptcy court noted that “not
every obligation created in connection with, or arising out
of, a domestic matter, ipso facto, qualifies as a domestic
support obligation.” Id. at 384.
The court went on to hold
that the plain language of a state court order awarding
attorney’s fees “based upon and supported by the bad faith
litigation misconduct of the former Wife, and [] not based
upon the respective wages or ability of the parties to pay,”
contradicted the assertion that the award was for “support.”
Id. at 385.
Cavagnetto seizes on this language to support
her argument, but her reliance on it is misplaced.
To begin, the bankruptcy court’s conclusion in this
case was not based on a blanket rule that every obligation
arising out of a domestic matter “ipso facto, qualifies”
8
under 532(a)(5), but instead on its factual finding that the
specific obligation was “for services rendered in obtaining
rulings in connection with their child’s welfare.”
Cavagnetto,
2012
WL
6585560,
at
*5.
consistent with the undisputed record.
arises
out
of
a
judgment
awarding
This
In re
finding
is
The contempt debt
attorney’s
fees
that
Stoltz incurred to enforce the support provisions of the
parties’ dissolution of marriage judgment that required them
to split equally the costs of childcare.
The
bankruptcy
court’s
issue was likewise sound.
proceeding
is
to
legal
determination
on
this
When “the ultimate purpose of...a
provide
support
for
the
child,
the
attorney’s fees incurred inure to the child's support and
therefore satisfy § 523(a)(5).”
676, 682 (7th Cir. 1998).
obtained
in
the
In re Platter, 140 F.3d
The substantive relief Stoltz
proceedings
that
led
to
the
contempt
sanction was reimbursement (in the form of a credit) for
excess
childcare
payments.
This
underscores
that
the
attorney’s fees at issue satisfy the applicable standard,
i.e.,
that
the
fees
were
for
services
rendered
in
proceedings whose “ultimate purpose” was to provide support
for the parties’ child, consistent with their respective
domestic support obligations.
9
Accordingly, I affirm the
bankruptcy
court’s
judgment
that
the
contempt
debt
of
$7,375.43 is nondischargeable under 11 U.S.C. § 523(a)(5).
B. The $1,500 “sanctions debt”
Cavagnetto
erroneously
asserts
that
concluded
that
nondischargeable
pursuant
divorce-related
debts
obligations.”
court’s
to
the
the
'
other
bankruptcy
sanctions
523(a)(15),
than
court
debt
which
“domestic
is
covers
support
To recall, this debt arises from the state
sanction
of
Cavagnetto
for
filing
a
frivolous
lawsuit to quiet title and for fraud, which the state court
consolidated with her petition for dissolution of marriage.
The bankruptcy court noted that it was “undisputed that the
attorney’s fees awarded by the state court are a debt that
was incurred by the debtor in the course of the Dissolution
Proceeding.”
In re Cavagnetto, 2012 WL 6585560, at *5.
Cavagnetto insists that it was “pure happenstance” that
the two suits were consolidated. But this interpretation is
at odds with the record.
As the state court explained, it
consolidated the cases because Cavagnetto’s suit to quiet
title “involves a substantial asset of the parties which is
either a non-marital or marital asset to be assigned by the
court
at
the
time
of
dissolution.”
R.
at
65.4
The
4
Although the record below was filed on this court’s
electronic docket, it is impossible to tell—even with the
document displayed on the screen and a paper copy in
10
bankruptcy court’s conclusion that the sanctions debt was
incurred “in the course of the Dissolution Proceeding” is
wholly consistent with the record.
Accordingly, I affirm
the bankruptcy court’s judgment that the sanctions debt of
$1,500 is nondischargeable under 11 U.S.C. § 523(a)(15).
C. Cavagnetto’s Counterclaim
In her counterclaim, Cavagnetto asserted an injury in
the amount of $5,243.39, “which represents an amount equal
to what the surplus of her bankruptcy estate would have been
if the Bartons had not filed their claim in her bankruptcy
case.”
In re Cavagnetto, 2012 WL 6585560, at *5.
Cavagnetto alleged
further damages in the amount of $26,281.29, “an amount equal to the
pro-rata share that the trustee would be required to pay on the Bartons’
claim.” Id.
Cavagnetto’s theory is that
Stoltz had a continuing
obligation, pursuant to a state court order of July 10,
2000, to indemnify her for at least some liability arising
from
the
Bartons’
deficiency.
claim
against
her
for
a
mortgage
Indeed, on that date, the state court vacated
its previous order allowing Cavagnetto to sell the Berwyn
Property
and
instead
ordered
Stoltz,
over
objection, to begin managing the property.
Cavagnetto’s
As a condition
of allowing Stoltz to operate the Berwyn Property, the court
hand—where on the electronic docket particular pages from the
record can be found. Accordingly, when I am unable to cite to
a docket number, I follow the parties’ lead and cite only to
the page in the record (“R.”).
11
ordered that Stoltz “shall hold [Cavagnetto] free, harmless
and indemnified against any losses the marital estate may
incur during the time of his management and control.”
R. at
819 (“the Indemnification Clause”).
In
its
oral
ruling
disposing
of
Cavagnetto’s
counterclaim, the bankruptcy court held:
Because [Cavagnetto’s] counterclaim is premised
upon her argument that the Bartons’ claim should
be disallowed, and because that argument has twice
been rejected by final orders of this Court and in
substance ruled on by the state court, Stoltz is
entitled to summary judgment on [Cavagnetto’s]
counterclaim as a matter of law.
In addition, because distribution has presumably
already been made pursuant to the amended final
report and accounting, [Cavagnetto’s] counterclaim
is also moot.
But even if [Cavagnetto] were able to overcome
these insurmountable hurdles, her other arguments
would not be sufficient to warrant the denial of
Stoltz’s summary judgment motion.
R. 1024-1025.
The
court
counterclaim
that
went
arose
pursuant to
on
under
to
explain
the
the state
that
Indemnification
law
doctrine
of
Cavagnetto’s
Clause,
and
merger,
the
divorce dudgment superseded Stoltz’s obligations under the
Indemnification
bankruptcy
Clause.
court’s
ruling
I
cannot,
on
articulates.
12
any
however,
affirm
the
of
grounds
it
the
To begin, the bankruptcy court’s unexplained statement
that the counterclaim “is premised upon her argument that
the
Bartons’
misapprehend
claim
the
should
theory
of
be
disallowed”
Cavagnetto’s
appears
counterclaim,
to
at
least insofar as it can be discerned from the face of her
allegations.
Indeed, Cavagnetto’s counterclaim explicitly
assumes
the
that
Bartons’
claim
will
be
allowed.
She
alleges that “[t]o the extent that this Court allows the
Barton claim, [Cavagnetto] has been damaged in the amount
of….” R. 142 at ¶¶ 46, 47.
Accordingly, the counterclaim
Cavagnetto asserts is not premised on the disallowance of
the Bartons’ claim.
To the extent any arguments Cavagnetto may have raised,
unsuccessfully, in objection to the Bartons’ claim are the
same as those she asserts—or intends to assert—in support of
her
counterclaim,
neither
the
bankruptcy
court’s
terse
ruling, nor the record before me, provides an adequate basis
on which to affirm the court’s apparent conclusion that
Cavagnetto’s counterclaim is precluded.
First, it is not
clear whether the bankruptcy court rested its conclusion on
principles of res judicata or collateral estoppel (both of
which doctrines were raised in the parties’ briefs).
If the
former, I cannot affirm because “[t]he Supreme Court has
held
that
res
judicata
does
13
not
apply
in
bankruptcy
discharge exception proceedings.” Meyer v. Rigdon, 36 F.3d
1375, 1378 n.1 (7th Cir. 1994) (citing Brown v. Felsen, 442
U.S. 127 (1979)).
principles
do
Second, although “collateral estoppel
indeed
apply
in
proceedings pursuant to § 523(a),”
discharge
exception
Grogan v. Garner, 498
U.S. 279, 284 n.11 (1991), the record does not establish
that the issues raised in Cavagnetto’s counterclaim were
“actually litigated and determined” in any prior litigation.
See Housing Auth. for LaSalle County v. YMCA, 461 N.E.2d
959, 962 (Ill. 1984).
entered
after
Moreover, the divorce judgment was
Cavagnetto
defaulted
on
Stoltz’s
counter-
petition for dissolution, and Illinois “subscribes to the
majority view that a default judgment cannot form the basis
for collateral estoppel.”
In re Nikitas, 326 B.R. 127, 131
(Bankr. N.D. Ill. 2005) (discussing relevant precedents).5
Nor do I find adequate support in the record—or in the
law—for the bankruptcy court’s conclusion that Cavagnetto’s
counterclaim is “moot” on the basis that “distribution has
presumably already been made.”
The bankruptcy trustee’s
final report shows that Cavagnetto’s assets were distributed
on January 12, 2013 (i.e., shortly after the bankruptcy
Cf. In re Catt, 368 F.3d 789, 791 (7th Cir. 2004) (noting
that “a significant minority of states, Indiana among them,
allow findings made in default proceeding to collaterally
estop, provided that the defaulted party could have appeared
and defended if he had wanted to”).
5
14
court granted summary judgment for Stoltz on his adversary
claims).
See In re Cavagnetto, No. 09 B 49694, Dkt. No. 80
at Ex. 9 (Bankr. N.D. Ill.).
trustee
did
not
wait
proceeding—including
It is perplexing that the
until
the
Cavagnetto’s
entire
adversary
counterclaim—had
been
resolved before distributing the assets of her estate.
See
In re J.S. II, LLC, 2009 WL 889988, at *2 (N.D. Ill. 2009)
(“Until [adversary] claims are resolved, the main bankruptcy
proceeding cannot be finalized and the estate assets cannot
be distributed.”).
That the assets of Cavagnetto’s estate
were apparently distributed prematurely (a fact over which
Cavagnetto presumably had no control), does not strike me as
an equitable basis for disposing of her counterclaim as
“moot.”
Moreover, as a matter of law, Cavagnetto’s counterclaim
is not moot simply because the bankruptcy trustee already
distributed her estate’s assets to creditors.
“A case is
moot if there is no possible relief which the court could
order that would benefit the party seeking it.”
In re
Envirodyne Indus., Inc., 29 F.3d 301, 304 (7th Cir. 1994).
I cannot say, on the record before me, that that is the case
here.
court
It may be possible, for example, for the bankruptcy
to
receiving
reopen
Cavagnetto’s
additional
funds
to
15
estate
which
for
the
the
purpose
estate
may
of
be
entitled for distribution to creditors.
See Ruhl v. HSBC
Mortgage Services, Inc., 399 B.R. 49, 55 (E.D. Wis. 2008).
“This
is
so
even
though
[Cavagnetto’s
debts]
have
been
discharged and the trustee[] ha[s] completed making payments
to creditors….
So long as it is theoretically possible for
a court to grant some form of relief…a case is not moot for
purposes of Article III.” Id. (citing cases). Because I
cannot discern from the record that there is no possible
relief to which Cavagnetto or her estate may be entitled,6 I
decline to affirm the bankruptcy court’s decision based on
mootness.
Finally,
the
bankruptcy
court’s
conclusion
that the
Indemnification Clause merged into the Final Judgment of
Dissolution does not survive scrutiny.
explicitly
agreed
with
Stoltz’s
The bankruptcy court
argument
on
this
issue,
which relied on In re Marriage of Simmons, 581 N.E. 2d 716
(Ill. App. Ct. 1991) and In re Marriage of Dunseth, 633 N.E.
2d
82
(Ill.
App.
1994).
Neither
case
supports
the
application of merger on the facts here.
In Simmons, the court declined to enforce a temporary
order
of
entered.
visitation
The
court
after
a
final
explained,
“a
visitation
temporary
order
order
was
is
I note that while Cavagnetto did not expressly plead her
counterclaim on behalf of her estate, the claim seeks relief
both for herself and for her estate.
6
16
provisional
in
character
pendency of the action.
and
continues
only
during
the
When the action becomes final, the
temporary order has fulfilled its purpose and is superseded
by the provisions of the final decree.”
581 N.E. 2d at 718.
Two obvious distinctions between this case and Simmons stand
out.
First,
evidence
to
unlike
“temporary.”
Stoltz
The
“shall
order
that
suggest
the
the
in
there
Indemnification
Indemnification
hold
Simmons,
is
no
Clause
is
Clause
provides
that
free,
harmless
and
[Cavagnetto]
indemnified against any losses the marital estate may incur
during the time of his management and control.”
R. 819.
Nothing in this provision indicates that it is intended to
be temporary, or that Cavagnetto’s right to enforce it will
expire at any particular time.
Second, while the final
order in Simmons contained provisions governing the same
substantive
matter
as
the
temporary
order—visitation—the
final judgment of dissolution in this case does not contain
any
provisions
allocating
liability
for
losses
to
the
marital estate during Stoltz’s management.
Moreover, there is no dispute that the marital estate
did, in fact, incur losses during the time Stoltz managed
and controlled the Berwyn Property, including as a result of
Stoltz’s failure to make timely property tax payments and
failure to make certain payments on the Bartons’ mortgage.
17
These
losses
ultimately
increased
Cavagnetto’s
liability
(and the liability of her bankruptcy estate) to the Bartons.
This liability plainly survived entry of the parties’ final
divorce
judgment
as
evidenced
by
the
Bartons’
vigorous
efforts to collect on the mortgage note from Cavagnetto
alone.
It makes little sense to conclude that an order
intended
to
indemnify
Cavagnetto
against
Stoltz’s
mismanagement of their marital property expires upon their
divorce, even though Cavagnetto’s own liability resulting
from that mismanagement persists.
Nothing
in
Dunseth
compels
a
contrary
conclusion.
Stoltz relies on that case for the proposition that “[o]nce
the final order is entered it must be assumed that the trial
court has thereby adjusted for any inequity in its temporary
orders.”
633 N.E. 2d at 92.
As noted above, the Indemnification
Clause is not, by its terms, a “temporary order,” nor does anything in
the final divorce order entered in this case suggest that the court
“adjusted” or even addressed the subject matter of the Indemnification
Clause.
III.
For the foregoing reasons, the bankruptcy court’s grant
of
summary
judgment
in
Stoltz’s
favor
on
his
claims
is
affirmed, and its grant of summary judgment in Stoltz’s
18
favor on Cavagnetto’s counterclaims is reversed and remanded
for further proceedings.
ENTER ORDER:
_____________________________
Elaine E. Bucklo
United States District Judge
Dated: November 4, 2013
19
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