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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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