Ciardi, K. v. Ciardi, A.

J-A17018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KIMBERLY E. CIARDI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ALBERT A. CIARDI, III : No. 2568 EDA 2016
Appeal from the Order Entered July 19, 2016
in the Court of Common Pleas of Chester County
Civil Division at No(s): No. 00649N2011,
PACSES No. 563112476
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED SEPTEMBER 19, 2017
Appellant, Kimberly E. Ciardi (“Wife”), appeals from the July 19, 2016
order denying her petition for alimony pendente lite during the pendency of
her appeal from the decree divorcing her from Albert A. Ciardi (“Husband”).
We affirm.
Another panel of this Court previously summarized the facts in the
underlying appeal:
Husband and Wife were married in 1995, and separated in
2009. Husband and Wife have three children. Husband is an
attorney who owns his practice. Wife has not worked outside of
the home since 1995. Prior to a hearing before a master, the
parties agreed to divide their considerable marital assets with
60% of the assets allotted to Wife and 40% to Husband.
However, the parties were unable to agree on how to distribute
Husband’s two law firms, which he started during the marriage.
Husband is the sole owner of Ciardi & Ciardi, PC, a Philadelphia
law firm. Husband owns 50% of the Delaware-based firm Ciardi,
Ciardi & Astin, PC.
* Retired Senior Judge assigned to the Superior Court.
J-A17018-17
Following another hearing, the master assigned Wife 50%
of the value of the Philadelphia firm as her portion of the marital
property, and 30% of Husband’s share of the Delaware firm.
The master also recommended Husband make three years of
alimony payments to Wife at an annually decreased rate and
that Husband pay $10,000 of Wife’s counsel fees. Husband and
Wife both filed exceptions to the master’s report. Prior to the
hearing before the trial court, Wife filed an emergency petition
seeking disbursement of the assets from the recently sold
marital home. The trial court disbursed the assets and deducted
the payments from each party’s equitable distribution portion of
the marital assets.
After conducting a hearing, the trial court issued a final
decree on December 22, 2015, divorcing the parties. The court
sustained Husband’s objection to the master’s valuation of his
interest in his law firms, as the master declined to assess taxes
against the value of the businesses. The court assessed a 30%
tax against Husband’s business interests, and decreased Wife’s
equitable distribution award accordingly. The court also adjusted
the award to account for the amount Wife received from the
proceeds of the sale of the parties’ home. The court thus
reduced Wife’s total equitable distribution award from
$1,310,609 to $782,447.
Husband [timely] filed a notice of appeal to this Court.
Wife then filed a notice of cross-appeal. After both parties
complied with the trial court’s directive to file Rule 1925(b)
statements, Husband discontinued his appeal. [Wife continued
her appeal.]
Albert A. Ciardi, III v. Kimberly E. Ciardi, 351 EDA 2016, *1-3 (Pa.
Super. 2017) (unpublished memorandum). In June 2017, this Court
affirmed the divorce decree, concluding that Wife was not entitled to relief.
Id. at *6-7.
The remaining facts are garnered from the record. Prior to the
disposition of her appeal of the divorce decree, in February 2016, Wife filed
a petition for special relief with the trial court, requesting that alimony
-2-
J-A17018-17
pendente lite (“APL”) continue through the pendency of the appeal. The trial
court denied Wife’s petition in July 2016, specifically noting that:
In this case, the Divorce Decree provides:
Husband shall pay to Wife the sum of $782,447 [1] as
follows: $30,000 within thirty days of the entry of the
Divorce Decree, with the remaining $752,447 payable in
monthly installments of $13,857 for 60 months at 4%
interest.
Wife also received alimony for 36 months at $3,000 for the first
12 months, $2,000 for the next 12 months and $1,000 for the
final 12 months. See Divorce Decree.
Husband already gave [W]ife the lump sum payment of $30,000.
In addition, pursuant to the Divorce Decree, she is getting
$16,857 per month from him for a total amount of $202,284
annually. In addition, the marital estate was recently sold and
[W]ife received 60% of the proceeds, which gave her a lump
sum payment of $464,000 from the sale of the house. Thus she
will receive over $696,000 between 2015 and 2016 alone
($202,284 + $464,000 + $30,000). Based on the foregoing, the
court finds that [W]ife has received more than adequate
assets/income “which sufficiently equalizes the financial
resources of the parties to pursue this action.” Accordingly, the
court finds that [W]ife is not entitled to APL during the pendency
of the appeal.
Order, 7/19/2016, at 1-2 n.1. Wife subsequently filed a motion for
reconsideration, to which Husband responded. The trial court did not rule on
Wife’s motion.
____________________________________________
1
The trial court’s order erroneously lists this sum as $782,448. See Order,
7/19/2016, at 1-2 n.1.
-3-
J-A17018-17
In August 2017, Wife timely filed the instant appeal and a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued an opinion
relying on its order of July 19, 2016.
Appellant presents the following question for our review:
1. Did the trial court err in denying Wife alimony pendente lite
during the pendency of her appeal to the Superior Court [of
Pennsylvania]?
Appellant’s Brief at 2 (some formatting applied).
In the sole issue before this Court, Wife asserts that the court
erroneously denied her petition for APL during the pendency of her appeal to
this Court. Appellant’s Brief at 5-13. In support of this assertion, Wife
suggests that the jurisprudence of this Court is inconsistent, holding at times
that, in a non-discretionary appeal,2 continuance of APL is automatic while at
other times analyzing the dependent spouse’s financial resources to
determine if continuance is appropriate. Id. at 11-13. According to Wife,
the continuation of APL is an “automatic right” and an “absolute right of the
dependent spouse.” Id. at 11. Wife further contends that APL should be
automatically continued during non-discretionary appeals without
____________________________________________
2
There is an absolute right of appeal from the lower court's divorce decree;
as such, an appeal to this Court is non-discretionary. Prol v. Prol, 840 A.2d
333, 336 (Pa. Super. 2003). However, appeals to our Supreme Court are
not matters of right, but of discretion. Id. at 335-336. Accordingly, Wife’s
appeal is non-discretionary.
-4-
J-A17018-17
consideration of any change in financial circumstances. Based on these
premises, Wife requests (1) APL during the period that her appeal from the
equitable distribution of her divorce decree was before this Court, as well as
(2) APL for the pendency of the instant appeal. Id. No relief is due.
We review APL awards under an abuse of discretion standard.
Haentjens v. Haentjens, 860 A.2d 1056, 1062 (Pa. Super. 2004). “An
abuse of discretion exists when the judgment of the trial court is manifestly
unreasonable or is the result of prejudice, bias or ill-will.” O'Callaghan v.
O'Callaghan, 607 A.2d 735 (Pa. 1992). If an order for alimony pendente
lite is bolstered by competent evidence, the order will not be reversed
absent an abuse of discretion by the trial court. Wayda v. Wayda, 576
A.2d 1060 (Pa. Super. 1990).
APL is an order for temporary support allowable to either spouse
during the pendency of a divorce action. 23 Pa.C.S. §§ 3702, 3103. A grant
of APL by the trial court is not a matter of right to either party. Nemoto v.
Nemoto, 620 A.2d 1216, 1221 (Pa. Super. 1993). Rather, “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 warfare.” DeMasi v. DeMasi, 597 A.2d 101,
104 (Pa. Super. 1991).
Nevertheless, where APL has been awarded, the recipient is eligible to
receive APL during the pendency of an appeal to this Court:
-5-
J-A17018-17
Considerations of public policy require that the dependent party
be entitled to support, in the form of alimony pendente lite ...
before entry of the lower court's decree [.] ... Since there is an
absolute right of appeal from the lower court's decree, these
same considerations require that the dependent party be
entitle[d] to support during the pendency of the appeal.
Prol, 840 A.2d at 335-36 (citing Shuda v. Shuda, 423 A.2d 1242, 1244
(Pa. Super. 1980)).
Additionally, this Court has repeatedly noted that eligibility to receive
APL during an appeal is not absolute:
[A]limony pendente lite may be terminated before the litigation
is concluded where the recipient has acquired assets of income
which sufficiently equalizes the financial ability of the parties to
pursue the action.
Brody v. Brody, 758 A.2d 1274, 1281 (Pa. Super. 2000).
There is no inconsistency in our case law, as alleged by Wife. Rather,
divergent results in the cases cited by Wife rest on an important distinction,
i.e., a change in the financial circumstances of the dependent spouse.
Compare, e.g., Brody, 758 A.2d at 1281 (recognizing termination of APL
proper where wife was awarded $319,501 in pension assets, continued to
receive generous support from her parents, and was capable of working);
Jayne v. Jayne, 663 A.2d 169, 176 (Pa. Super. 1995) (concluding award of
alimony pendente lite was improper where wife had acquired $225,866.84,
plus alimony of $200.00 per month for two years, which sufficiently
equalized the financial ability of the parties to pursue the action); Nemoto,
620 A.2d at 1221 (recognizing that although wife’s earning capacity and
-6-
J-A17018-17
actual income were less than husband’s, she had “acquired adequate assets
and income available through equitable distribution, alimony, and her own
earning capacity so that she [could] litigate the case as she [chose]” moving
forward); Spink v. Spink, 619 A.2d 277 (Pa. Super. 1992) (concluding that
the trial court would not have abused its discretion in discontinuing APL to
wife while appeal of that order was pending where, wife would receive
$120,000 from sale of marital residence.); with Haentjens, 860 A.2d at
1063 (Pa. Super. 2004) (continuation of APL appropriate where wife had not
yet received her equitable distribution award of $688,000).
In the instant case, Wife’s financial situation changed dramatically, as
she received $696,000 in income between 2015 and 2016. Order,
7/19/2016, at 1-2 n.1. The trial court detailed with specificity the sums Wife
already received, including a lump sum payment of $464,000 as a partial
distribution of the proceeds from the sale of the marital residence. We
therefore conclude that Wife has acquired sufficient assets to pursue
litigation on equal terms with Husband. See DeMasi, 597 A.2d at 104;
Brody, 758 A.2d at 1281. The trial court's conclusion that Wife did not
demonstrate a need for further payment of APL is supported by the record.
Accordingly, we discern no abuse of discretion by the trial court in
discontinuing APL payments to Wife. See Haentjens, 860 A.2d at 1063;
Wayda, 576 A.2d 1060.
Order affirmed.
-7-
J-A17018-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2017
-8-