J. S67037/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KATHLEEN A. GABRIEL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
EUGENE W. GABRIEL, :
:
Appellant : No. 820 WDA 2014
Appeal from the Order April 16, 2014
In the Court of Common Pleas of Lawrence County
Civil Division No(s).: 342 of 2007 D.R.
KATHLEEN A. GABRIEL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
EUGENE W. GABRIEL, :
:
Appellant : No. 822 WDA 2014
Appeal from the Order April 16, 2014
In the Court of Common Pleas of Lawrence County
Civil Division No(s).: 11294 of 2006 C.A.
BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 23, 2015
*
Former Justice specially assigned to the Superior Court.
J. S67037/14
Appellant, Eugene W. Gabriel (“Husband”), appeals from the April 16,
2014 order entered in the Lawrence County Court of Common Pleas,
sustaining, inter alia, the March 11, 2014 order granting Appellee’s,
Kathleen A. Gabriel’s (“Wife’s”), motion to correct alimony pendent lite
(“APL”) arrearages. Appellant contends the court erred in determining the
APL litigation continued from June 28, 2010 until September 30, 2012,
because the final order dated June 28th was not appealed. We remand for a
recalculation of Husband’s overpayment of alimony based upon the duration
of Wife’s APL award.
A prior panel of this Court summarized the facts and procedural history
of this case as follows:
Husband and Wife were married in 1982. The parties
have two sons, both of whom are now emancipated. The
parties permanently separated in August 2006.
Approximately one month later, Wife filed a Complaint in
divorce. The case was bifurcated, and the trial court
appointed a Divorce Master to address the issues of
equitable distribution and alimony. The parties were
divorced by a Decree entered in August 2009.
During the parties’ marriage, Husband established a
franchise with Ameriprise Financial, Inc. (“the Ameriprise
franchise”). Husband is the 100% owner and sole
proprietor of the Ameriprise franchise, where he works as
a financial planner. The Ameriprise franchise is the parties’
only significant marital asset. During the parties’
marriage, Wife contributed as a homemaker and the
primary caregiver to the parties’ children. In 2003, Wife
obtained employment at a retail clothing store.
* * *
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Following several hearings, on October 16, 2009, the
Master filed a Report and Recommendation (“the Master’s
Report”). In relevant part, the Master’s Report (1)
awarded Wife 50% of the value of the Ameriprise
franchise; (2) awarded Wife alimony for 10 years, the first
5 years at $1,502.80 per month, and the remaining 5
years at $751.40 per month; and (3) stated that each
party is responsible for his or her own attorney’s fees and
costs.
On November 2, 2009, Wife timely filed Exceptions to
the Master’s Report, contending that the Master erred in,
inter alia, (1) recommending that Wife receive only 50%
of the value of the Ameriprise franchise; (2)
recommending an inadequate alimony award; and (3)
failing to recommend that Husband pay Wife’s unpaid
attorneys’ fees. Husband did not file any exceptions to the
Master’s Report.
In response to Wife’s Exceptions, the trial court entered
an Order on June 23, 2010, in which the court made
several modifications to the Master’s Report. In relevant
part, the trial court (1) awarded Wife 65% of the value of
the Ameriprise franchise; (2) ordered Husband to pay Wife
alimony in the amount of $2,000 per month for
approximately thirteen years (alimony would terminate
when Wife reaches the age of 62 and is eligible to retire);
and (3) ordered Husband to pay $10,000 of Wife’s unpaid
attorney’s fees. On June 28, 2010, the trial court, sua
sponte, issued an Order clarifying its prior June 23, 2010
Order.[1] On July 20, 2010, Husband timely filed a Notice
of appeal from the June 23, 2010 Order. Husband did not
appeal the June 28, 2010 Order.
1
We note that “a court upon notice to the parties may modify or rescind any
order within 30 days after its entry, notwithstanding the prior termination of
any term of court, if no appeal from such order has been taken or allowed.”
42 Pa.C.S. § 5505. “The [trial] court’s authority under 42 Pa.C.S.A. § 5505
to modify or rescind an order is almost entirely discretionary.” Murphy v.
Murphy, 988 A.2d 703, 708 (Pa. Super. 2010). The notice of appeal from
the June 23, 2010 order was not filed until July 20, 2010. Therefore, the
court could sua sponte modify the order on June 28th.
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On appeal, a panel of this Court vacated the June 23,
2010 Order and remanded the matter to the trial court
with specific instructions for it to issue a new opinion and
order clarifying the court’s rationale for its June 23, 2010
Order and substantiating the amounts awarded to Wife.
See Gabriel v. Gabriel, 1155 WDA 2010 [(unpublished
memorandum at *4) (Pa. Super. Aug. 2, 2011)]. In
response, on October 21, 2011, the trial court issued
an Order and an accompanying Opinion, wherein the
court affirmed, in all respects, its June 23, 2010 and
June 28, 2010 Orders.
Gabriel v. Gabriel, 1734 WDA 2011 (unpublished memorandum at 1, 3-5)
(Aug. 29, 2012) (emphases added).2 This Court “adopt[ed] the trial court’s
sound reasoning for the purposes of th[e] appeal and conclude[d] that the
2
Husband raised the following issues in the prior appeal:
I. Whether the trial court abused its discretion and
misapplied the law in utilizing the income of Husband
[from] his Ameriprise [franchise] over and above
$107,000.00, for the purposes of equitable distribution,
spousal support and/or alimony . . . ?
II. Whether the trial court’s decision and Order of October
21, 2011, on remand, remains an abuse of discretion, in as
much as[ ] the same is nothing more than a reaffirmation
of [the trial court’s] prior abuse of discretion [in the]
Order[s] of June 28[, 2010] and June 23, 2010[, wherein
the court] award[ed] Wife alimony and counsel fees based
on Husband’s earning capacity of $194,446.00 and
$10,120.00 per month, when a portion of the same income
was also used to value husband’s business, which Wife
received 65% of, and the same is confiscatory, inequitable,
and a b[la]tant punitive award of alimony?
Gabriel, 1734 WDA 2011 at 5 (emphasis added).
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trial court did not abuse its discretion in fashioning the award of alimony to
Wife.” Id. at 10. This Court affirmed the October 21, 2011 order. Id. at 1.
On September 25, 2013, the Lawrence County Domestic Relations
Section filed a motion to terminate APL and commence alimony in the
amount of $2,000 per month retroactive to June 28, 2010. Lawrence
County Domestic Relations’ Motion, 9/25/13. The trial court entered an
order on the same date, filed on September 26th, granting the motion.
Order, 9/26/13. On December 5, 2013, Wife filed a petition for special
relief. The court scheduled a hearing on the petition for February 21, 2014.
Order, 12/5/13. The hearing was continued until April 1, 2014. Order,
2/25/14. On February 25, 2014, Wife filed a petition for contempt. Wife
filed a motion to correct APL arrearages and on March 11, 2014, the court
entered an order which provided “[t]he domestic Relations Office shall
recalculate the arrearages in this case based on a September 29, 2012
termination of [APL] of $3,334.43 per month prorated and effective
September 30, 2012 implement an alimony Order of $2,0000 per
month prorated.” Order, 3/11/14 (emphasis added). The order further
provided that the court would hear testimony on the appropriate arrearages
at the April 1, 2014 hearing. Id.
A hearing was held on April 1st. On April 14, 2014, the court entered
an order denying wife’s petition for contempt, granting the petition for
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special relief, and sustaining the March 11, 2014 order granting Wife’s
motion to correct APL arrearages. Order, 4/14/14.
This timely appeal followed. Husband filed a timely court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial
court adopted its April 14th opinion as its Pa.R.A.P. 1925(a) responsive
opinion. Order, 5/27/14.
Husband raises the following issue for our review:
1. Whether the Court erred in determining [Husband’s]
Alimony Pending Litigation continued from June 28, 2010
until September 30, 201[2] wherein the final order of
Court dated June 28, 2010 was never appealed thereby
terminating litigation?
Husband’s Brief at 8.
Husband argues that the June 28, 2010 order, not the June 23, 2010
order, was the final order of court because Wife appealed the June 23rd
order, not the June 28th order. Therefore, Husband avers litigation ended in
relation to APL when the thirty day appeal period from the June 28th order
expired. Id. He contends that he improperly paid APL from June 28, 2010
until September 30, 2012. Id.
We review APL awards under an abuse of discretion
standard. APL is “an order for temporary support granted
to a spouse during the pendency of a divorce or annulment
proceeding.” 23 Pa.C.S.A. § 3103. APL “is designed to
help the dependent spouse maintain the standard of living
enjoyed while living with the independent spouse.” Also,
and perhaps more importantly, “APL is based on the need
of one party to have equal financial resources to pursue a
divorce proceeding when, in theory, the other party has
major assets which are the financial sinews of domestic
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warfare.” APL is thus not dependent on the status of the
party as being a spouse or being remarried but is based,
rather, on the state of the litigation.
Schenk v. Schenk, 880 A.2d 633, 644 (Pa. Super. 2005) (some citations
omitted and emphases added).
As a party’s need for APL is a function of that party’s
economic means during litigation, Pennsylvania courts
have repeatedly been asked to determine at what point in
the litigation process APL should terminate. It has long
been the law in this Commonwealth that APL should
terminate upon resolution of all matters concerning
equitable distribution:
Thus, while APL typically ends at the award of the
divorce decree, which also should be the point at
which equitable distribution has been determined, if
an appeal is pending on matters of equitable
distribution, despite the entry of the decree,
APL will continue throughout the appeal
process and any remand until a final Order has
been entered.
DeMasi v. DeMasi, [ ] 597 A.2d 101, 104 ([Pa. Super.]
1991).
Subsequently, however, in Prol v. Prol, 840 A.2d 333,
336 (Pa. Super. 2003), this Court concluded that APL
should not be automatically continued during discretionary
appeals, specifically those matters which are appealed to
the Pennsylvania Supreme Court. Id. at 335. However,
our Court in Prol emphasized that parties are
automatically eligible to receive APL through appeals
to this Court, as such appeals are not considered
discretionary. Id. at 335-336.
Haentjens v. Haentjens, 860 A.2d 1056, 1062-63 (Pa. Super. 2004)
(emphasis added).
Instantly, the trial court opined:
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. . . Wife is entitled to receive $3,332.35 each month with
that amount being designated as APL. Upon
implementation of the alimony award, the monthly amount
received by Wife would be reduced to $2,000.00.
Therefore, the effective date of Wife’s alimony award
greatly affects the amount of credit owed to Husband.
Husband believes Wife’s alimony award should begin
immediately following the issuance of the June 28, 2010
order. According to Husband’s argument, all payments
made to Domestic Relations after June 28, 2010 should be
characterized as alimony, thereby increasing the
overpayments made by Husband. Wife alternately argues
that she was entitled to APL while Husband appealed this
[c]ourt’s final economic order. Wife maintains that her
alimony award should not commence prior to September
30, 2012.
* * *
[I]t is clear that Wife is entitled to receive APL throughout
the duration of litigation. Thus, while Husband was
exercising his ability to appeal this [c]ourt’s final economic
order, Husband was under the obligation to pay Wife APL.
Upon exhaustion of the appeal process and remand to this
[c]ourt, Wife’s APL award terminated and her entitlement
to alimony began. Based on the [c]ourt’s determination,
the [c]ourt finds that the Order of Court issued on March
11, 2014, which corrected the duration of Wife’s APL award
and established an effective date for Wife’s alimony award,
to be correct. Upon the [c]ourt’s own inquire, [sic] the
[c]ourt sets Husband’s overpayment balance to be
$19,153.11 as of April 14, 2014. This balance is
consistent with the changes made in the Domestic
Relations action following the March 11, 2014 Order of
Court. The [c]ourt therefore concludes that Wife’s Motion
to correct APL Arrearages was properly granted, and the
resulting credit in Husband’s favor is properly set at
$19,153.31. Husband shall receive a dollar for dollar
credit against Wife’s equitable distribution award for
overpayments Husband made to the Office of Domestic
Relations of Lawrence County.
Trial Ct. Op., 4/14/14, at 8-9, 11-12 (emphasis added).
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In contravention of the court’s April 14th opinion, the April 14th order
provided, inter alia, “The Domestic Relations Section of Lawrence County
shall consider [Husband’s] overpayments in adjusting [Wife’s] monthly
alimony award until the overpayments are absorbed into [Husband’s]
active alimony order.” Order, 4/14/14. at 6, ¶6. On December 11, 2014,
the trial court entered an order which corrected this misstatement.3 The
order provided, inter alia, as follows:
1. Upon thorough review of this [c]ourt’s opinion dated
April 14, 2014 and the corresponding Order of Court, the
[c]ourt finds that the language of the April 14, 2014
3
Subsequent to the filing of the instant appeal, Wife filed a “motion to
harmonize the April 14, 2014 order with opinion of even date.” Docket,
12/12/14, at 8. The docket indicates Husband opposed the motion. Id. On
December 10, 2014, counsel for the parties appeared before the court to
argue the motion. Order, 12/10/14. The court entered an order on
December 11, 2014 vacating paragraph six of the April 14, 2014 order. See
infra. This Court received the order in a supplemental record.
The Pennsylvania Rules of Appellate Procedure provide:
(b) If anything material to a party is omitted from the
record by error, breakdown in processes of the court, or
accident or is misstated therein, the omission or
misstatement may be corrected by the following
means:
(1) by the trial court or the appellate court upon
application or on its own initiative at any time; in the
event of correction or modification by the trial court,
that court shall direct that a supplemental record be
certified and transmitted if necessary[.]
Pa.R.A.P. 1926(b)(1) (emphases added). The parties and the court
complied with Rule 1926(b)(1).
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[order] improperly gives [Husband] a double credit
against his equitable distribution obligation and
against his spousal support obligation.
* * *
5. Therefore, paragraph six (6) of the April 14, 2014 Order
. . . is hereby VACATED and replaced with the following
provision:
The domestic Relations Section, as of April 14, 2014,
shall adjust [Husband’s] overpayment from $19,312.37
to $0.00.
Order, 12/11/14, at 1-2.
We find the trial court erred in determining that Wife’s APL terminated
on September 29, 2012. Instantly, the underlying appeal was decided by
this Court on August 29, 2012. Gabriel, 1734 WDA 2011. Wife was eligible
to receive APL though the appeals to this Court. Haentjens, 860 A.2d at
1063. Therefore, Wife’s APL terminated on August 29, 2012. See id.
Accordingly, we remand for the trial court to recalculate Husband’s
overpayment balance.
Order affirmed in part and vacated in part. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2015
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Gabriel, K. v. Gabriel, E.
Combined Opinion