MacKenzie, C. v. Bufalino, C. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CAROL MACKENZIE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES BUFALINO
Appellant No. 3129 EDA 2013
Appeal from the Order Entered October 16, 2013
In the Court of Common Pleas of Montgomery County
Domestic Relations at No(s): 2007-07498
BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED NOVEMBER 18, 2014
Charles Bufalino appeals from the order entered October 16, 2013, in
the Montgomery County Court of Common Pleas. The order found Carol
MacKenzie, Bufalino’s former wife, in contempt of the parties’ divorce
decree1 by failing to make mortgage payments on their former marital
residence pursuant to the parties’ equitable distribution agreement, but
imposed no sanctions. On appeal, Bufalino challenges the trial court’s
factual findings with regard to the contempt petition, the court’s refusal to
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*
Retired Senior Judge assigned to the Superior Court.
1
While the trial court indicated MacKenzie was in contempt of the parties’
equitable distribution agreement, it appears that the agreement was
incorporated into the divorce decree. See Trial Court Opinion, 12/20/2013,
at 1; N.T., 1/11/2010, at 11-12. Therefore, MacKenzie was technically in
contempt of the divorce decree.
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order transfer of the deed of the marital home to his name, and the court’s
failure to consider the best interests of the parties’ children. Because we
conclude the October 16, 2013, order is interlocutory and not appealable, we
quash this appeal.
The facts underlying the present appeal are aptly summarized by the
trial court as follows:
Charles Bufalino … and Carol MacKenzie … were married on
November 1, 1997 and divorced through a decree dated January
21, 2010. They are parents of two children, [a girl, born in
2004, and a boy, born in 2005]. Attached to the parties[’]
divorce decree is an equitable distribution agreement dated
January 11, 2010. Pursuant to point one of … that agreement,
“[t]he parties own real estate as tenants by the entireties
suituate at [] Rock Glen Road, Wynnewood, Montgomery
County, Pennsylvania (“marital residence”). Charles Bufalino
shall forthwith convey all of his right, title and interest in said
premises to Carol MacKenzie under and subject to the first and
second mortgage liens and line of credit thereon. Upon said
conveyance, Carol MacKenzie shall be responsible for payment of
said first and second mortgage liens and line of credit and shall
indemnify and hold Charles Bufalino harmless therefrom.”1
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1
All debt associated with the marital residence was
discharged and [Bufalino] is no longer obligated for any
debts arising from the marital residence.
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On February 21, 2012, [Bufalino] filed a “Petition in Special
Relief re: Contempt of Equitable Distribution Agreement of
January 11, 2010” and filed a revised version of this petition on
March 22, 2013. In these petitions [Bufalino] alleged
[MacKenzie] has not paid the loans on the marital residence
since May of 2011 and therefore a foreclosure was imminent.
The parties first appeared before the undersigned on April 4,
2013 on [Bufalino’s] petitions.2 At this hearing, [Bufalino]
argued that “there had been no indication from [MacKenzie]
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since May of 2011 that there was any problem.”3 In response,
[MacKenzie] testified that she initially had issues communicating
with the bank regarding the mortgage loans because her name is
not on these contracts.4 Her inability to modify the mortgage
and problems with child support led her to file for bankruptcy
and consult with a bankruptcy attorney, who allegedly advised
her to stop paying the mortgage. [MacKenzie] then refuted
[Bufalino’s] testimony regarding knowledge of the foreclosure
stating “[Bufalino] has known this and he’s known this for quite
some time, and he sat on it.”
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2
[T]he undersigned consolidated all outstanding petitions
for the April 4, 2013 hearing. Consequently, this hearing
concerned three separate issues: support exceptions (in
response to [MacKenzie’s] petition filed February 19,
2013), equitable distribution (in response to the above
petitions filed by [Bufalino]) and custody (in response to
an emergency petition filed by [Bufalino] on June 25, 2012
and a petition for special relief in summer custody filed by
[MacKenzie] on September 23, 2012). On April 4, 2013,
the undersigned entered a final order regarding custody
and on April 17, 2013, the undersigned entered a final
order regarding support. Neither party took an appeal
from either of these orders. Therefore, only the portion of
the April 4, 2013 hearing that concerned equitable
distribution was transcribed.
3
While an email was introduced from Feburary 21, 2012,
at the October 11, 2013 hearing, that indicated that
[Bufalino] had notice of the foreclosure as of that day[,
Bufalino] claimed that he only found out as of February
2013 that [MacKenzie] had stopped paying the mortgage.
4
The Court acknowledged the fact that [MacKenzie]
initially had issues communicating with the bank because
the mortgage is in [Bufalino’s] name.
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At the conclusion of the April 4, 2013 hearing, the
undersigned entered an interim order requiring “both parties …
to cooperate with Wells Fargo Bank to modify the mortagage and
line of credit. Parties are to copy each other on any or all
correspondence involving the mortgage modification. [Bufalino]
shall maintain on-going contact with the Bank to keep the
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modification moving forward.” The parties were advised to
submit weekly status reports to the undersigned as to the
progress of the mortgage modification. The parties had a status
telephone conference on this issue with the undersigned in
August and on October 11, 2013[,] the parites appeared before
the undersigned for a final hearing on the equitable distribution
issue. At this hearing, [Bufalino] requested that the marital
residence be transferred back in his name. The undersigned
took the matter under advisement and issued a final order to the
parties on October 16, 2013.
Trial Court Opinion, 12/20/2013, at 1-2 (record citations omitted).
In its October 16, 2013, order, the trial court found MacKenzie in
contempt of the parties’ divorce decree for failing to make mortgage
payments on the martial residence and failing to notify Bufalino when she
stopped doing so in violation of the equitable distribution agreement. See
Order, October 16, 2003. However, the court determined that her actions
had not “caused any financial detriment to [Bufalino,]” because he had
discharged the mortgages in bankruptcy, and MacKenzie was bound by the
equitable distribution agreement to hold him harmless in the event of any
financial harm resulting from her breach of the agreement. Id. The trial
court also concluded that Bufalino’s behavior “in part, perpetuated
[MacKenzie’s] inability to make timely payments by failing to stay current on
his child support and alimony.” Id. The court directed MacKenzie to
forward to Bufalino all future communication regarding foreclosure of the
mortgage. Lastly, the court addressed Bufalino’s request to have the deed
of the property transferred back to his name:
In the event that [Bufalino] can provide the Court with a
letter from a representative who has authority to bind Wells
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Fargo, that Wells Fargo will commit to refinance or modify the
mortgages if the deed is transferred to [Bufalino], then the Court
will entertain an Order for [MacKenzie] to cooperate with
[Bufalino] to effectuate the transaction to restructure the
mortgages. [MacKenzie] would then be permitted to remain in
the property or sell it as she sees fit.
Id. This timely appeal followed.2
As noted above, on appeal, Bufalino challenges (1) the trial court’s
findings of fact, specifically finding him partially responsible for the default
and finding he suffered no harm as a result of the default; (2) the court’s
refusal to transfer title of the propery to him except upon his satisfaction of
an impossible condition; and (3) the court’s failure to consider the best
interests of the children by avoiding foreclosure on the marital home.
However, before we may consider Bufalino’s substantive claims, we must
first determine if the order on appeal is properly before us, since “[t]he
appealability of an order goes directly to the jurisdiction of the Court asked
to review the order.” Takosky v. Henning, 906 A.2d 1255, 1258 (Pa.
Super. 2006).
In the present case, Bufalino has appealed the October 16, 2013,
order of the trial court holding MacKenzie in civil contempt. “It is well
settled that unless sanctions or imprisonment is imposed, an Order
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2
We note that Bufalino self-designated this appeal as a “Children’s Fast
Track Appeal” and, contemporaneous with the filing of his notice of appeal,
filed a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(ii). Upon review of the appeal, however, this Court
declined to list the appeal as a “fast track” case.
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declaring a party to be in contempt is held to be interlocutory and not
appealable.” Id. at 1258 (emphasis supplied), citing Sargent v. Sargent,
733 A.2d 640, 641 (Pa. Super.1999). Moreover, when a contempt order
that imposes sanctions also contains a purge condition, the order is still final
so long as “no further court order be required before the sanctions take
effect.” Foulk v. Foulk, 789 A.2d 254, 258 (Pa. Super. 2001).
Here, the order on appeal declared MacKenzie in contempt of the
parties’ divorce decree by failing to make mortgage payments on their
former marital residence pursuant to the parties’ equitable distribution
agreement, but imposed no sanctions for her behavior. Although the court
expressed a willingness to reconsider, at some future time, Bufalino’s
request to impose a sanction on MacKenzie –namely, to have the deed to
the marital residence transferred to his name –it did so contingent upon
Bufalino’s ability to secure Wells Fargo’s commitment to refinance the
property. It is evident that, in the event Bufalino is able to secure such a
commitment, further proceedings will be required. Therefore, the order on
appeal is an interlocutory finding of contempt.3
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3
We note that a motions judge on this Court initially quashed this appeal
sua sponte by order dated on January 16, 2014, concluding that the order
on appeal was an interlocutory finding of contempt absent the imposition of
sanctions. However, Bufalino subsequently filed an Application for
Reconsideration and Reinstatement of Appeal on January 29, 2013.
Thereafter, on March 21, 2014, the appeal was reinstated without opinion.
See Order, 3/14/2014.
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Bufalino argues, however, that the order on appeal should be
considered a collateral order pursuant to Pa.R.A.P. 313 because “the right
involved is too important to be denied review and the question presented is
such that if review is postponed until final judgment in the case, the claim
will be irreparably lost.” Pa.R.A.P. 313(b). Specifically, he contends his
children’s home will be “irreparably lost absent action by this Honorable
Court.” Application for Reconsideration and Reinstatment of Appeal,
1/29/2014, at ¶ 4. See also Bufalino’s Reply Brief at 4. In support of this
contention, Bufalino relies upon this Court’s decision in Harcar v. Harcar,
982 A.2d 1230 (Pa. Super. 2009).
In Harcar, mother and father were natives of the Republic of Turkey,
but moved to Pennsylvania sometime after child’s birth. The parties later
separated, and mother was awarded primary physical custody of child. In
June of 2006, she requested permission to take child to Turkey for summer
vacation. In an order dated June 2, 2006, the trial court granted mother’s
request, but directed her to return child to Pennsylvania on August 18, 2006.
However, once in Turkey, mother filed for divorce from father, and initiated
custody proceedings in Turkey. Father filed a petition for special relief,
asserting that mother did not intend to return to Pennsylvania despite the
court’s June 2006 order. On September 5, 2006, the trial court issued
another order directing mother to return to Pennsylvania. Mother, again,
failed to comply. Id. at 1231-1232.
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In March of 2008, Father filed a petition for contempt based upon
mother’s failure to comply with the trial court’s June 2006 and September
2006, orders. Subsequently, on October 9, 2008, the trial court entered the
order that was the subject of the appeal. In particular, the order found
mother in contempt, but did not impose any sanction. The court noted that
child had been living with mother in Turkey for almost two years, and father
was also living in Turkey on an educational sabbatical. Because Father was
no longer living in Pennsylvania, and it did not appear that he intended to
return, the court “reasoned that it would not be in Child’s best interests to
impose as a sanction on Mother that she should have to return Child to
Beaver County[.]” Id. at 1233.
Father appealed the order arguing, inter alia, that the trial court erred
in failing to impose a sanction for mother’s contemptuous behavior.
Without discussing the appealablity of the contempt order, this Court
concluded that the trial court abused its discretion “in refusing to impose any
sanction on Mother for her flagrant contempt of the trial court’s [orders]
directing her to return Child to Beaver County by August 18, 2006.” Id. at
1240. Accordingly, the Court remanded for the imposition of an appropriate
sanction. This Court found particularly relevant the fact that mother fled to
a foreign jurisdiction with child and initiated a custody battle there, after the
trial court had assumed jurisdiction in Pennsylvania. See id.It is evident that the facts in Harcar are unique, and clearly
distinguishable from the facts in the present case. Indeed, Harcar involved
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a trial court’s failure to sanction a mother who flagrantly disregarded a
custody order, and absconded with her child to a foreign country.
Significantly, the panel deciding Harcar did not address the appealability of
the contempt order.4 Accordingly, we do not find that it controls our
disposition of the present case.
Lastly, with regard to Bufalino’s contention that “[t]he Children’s home
will be irreparably lost”5 should we deny review, we note that there is no
evidence in the record that Bufalino has the financial ability to save the
home. As the trial court explained in its opinion,
At the October 11, 2013 hearing, [Bufalino] requested that the
deed to the marital residence be transferred into his name. The
Court considered this request but was concerned about the
feasibility of the option considering the facts that [Bufalino] had
his debts discharged in bankruptcy, lost one of his two properties
in Pittston to a tax sale and was behind two months on the
mortgage on his other Pittston property. Threfore, in creating its
order, the undersigned conditioned the deed transfer on an
assurance from a representative at Wells Fargo, who had the
authority to bind the company, that he or she would “commit to
refinance or modify the mortgages if the deed is transferred to
[Bufalino].”
Trial Court Opinion, 12/20/2013, at 3 (record citations omitted).
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4
We note that Bufalino has provided us with no authority in which an
appellate court considered an otherwise interlocutory contempt order as a
collateral order for purposes of appeal. The Harcar Court certainly did not
do so.
5
Application for Reconsideration and Reinstatment of Appeal, 1/29/2014, at
¶ 4.
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Therefore, because we conclude the order on appeal finding MacKenzie
in civil contempt, but imposing no sanctions, is interlocutory and not
appealable, we quash this appeal.
Appeal quashed. MacKenzie’s Motion to Strike Appellant’s Reply Brief
and Reply Letter is denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2014
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