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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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