J-A13003-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANN B. GRAZIANI, FORMERLY KNOWN IN THE SUPERIOR COURT OF AS ANN B. DUNN PENNSYLVANIA
Appellant
v.
THOMAS W. DUNN, III
Appellee No. 1460 WDA 2014
Appeal from the Order August 6, 2014 In the Court of Common Pleas of Washington County Civil Division at No(s): 2009-3151
BEFORE: PANELLA, J., SHOGAN, J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED JULY 27, 2015
Ann B. Graziani, formerly known as Ann B. Dunn, (“Wife”), challenges
a divorce decree entered on November 20, 2012. Specifically, she challenges
the trial court’s determination, by way of an order entered August 6, 2014,
that the decree was effective to divorce her from Thomas Dunn (“Husband”),
despite this Court having vacated the decree in part and remanded the case
to the trial court for further proceedings consistent with a previous
memorandum decision. See Graziani v. Dunn, No. 1980 WDA 2012 (Pa.
Super., filed March 21, 2014) (unpublished memorandum). We affirm.
Wife filed a complaint in divorce on April 17, 2009, requesting a no-
fault divorce under 23 Pa.C.S.A. § 3301(c) along with ancillary economic
claims. Husband and Wife each filed affidavits of consent to the divorce. J-A13003-15
After multiple hearings on the economic claims, the divorce master
issued a report and recommendation. In this report, the master made
recommendations to the trial court on the economic issues and that a
divorce decree should be entered under § 3301(c) of the divorce code. From
this recommendation, both Husband and Wife filed exceptions on various
economic issues. After briefing and argument, the trial court issued an order
disposing of both parties’ exceptions. The trial court issued orders correcting
the order of distribution and issued a final decree in divorce on November
20, 2012.
Wife filed a timely appeal with this Court. In her concise statement of
matters complained of on appeal, Wife identified ten issues, all of which
were economic related issues. None of the issues specifically identified entry
of the § 3301(c) decree as an error.
The previous panel of this Court identified eight economic issues
briefed and argued by Wife and addressed each issue individually. In its
holding, the Superior Court reversed the trial court with regard to Wife’s
first, second, and fifth issues (pension, continuance, and alimony
respectively); vacated as to her third, fourth, and sixth issues (attorney’s
fees, credit against equitable distribution, and pension respectively);
remanded as to issue eight (restricting evidence); and found no merit in her
issue seven (loss of value of marital residence). See Graziani, No. 1980
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WDA 2012 at 17-18. The panel then remanded the case to the trial court for
proceedings consistent with its opinion. See id.
Subsequent to the entry of the divorce decree, Husband remarried in
Florida on October 31, 2013. In May 2014, Husband’s employer terminated
his employment and he applied for retirement benefits through his union in
June 2014. In his application for retirement benefits, Husband named his
current spouse as the beneficiary. Wife then petitioned the trial court for an
order enjoining the union’s pension fund from recognizing the current
spouse, instead identifying Wife as his current spouse, and precluding paying
out pension benefits to Husband.
The trial court entered an order on August 6, 2014, concluding that
Husband and his current spouse were legally married as a result of the
divorce decree and subsequent marriage. The trial court enjoined the
pension fund from paying any pension benefits to Husband pending a final
qualified domestic relations order (“QDRO”). Wife moved for reconsideration,
arguing that her survivor’s benefits from Husband’s retirement could be
affected by his remarriage. After the trial court denied reconsideration, Wife
filed a timely notice of appeal of the August 6 order. Wife’s stated reason for
opposing Husband’s motion for reconsideration of the July 10 order was that
her rights to Husband’s retirement benefits through his union pension fund
could be affected by a subsequent marriage. Pending this appeal, Husband
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and Wife executed a QDRO, which the trial court issued on December 17,
2014, resolving the issue of Husband’s retirement.
Wife claims that the trial court erred in finding that its previously-
entered divorce decree was effective to divorce the parties, despite Wife’s
pending appeal from the divorce decree.
Wife first argues the trial court erred in holding that since both
Husband and Wife had filed affidavits of consent prior to the entry of a
divorce decree, that these affidavits were akin to a consent to bifurcation of
the divorce proceedings. “Bifurcation separates the termination of the
marriage from the distribution of property so that the marriage and each
party’s personal life are not held hostage to economic demands.” Wolk v.
Wolk, 464 A.2d 1359, 1361 (Pa. Super. 1983).
The Pennsylvania Divorce Code permits parties to bifurcate their
divorce proceedings, under 23 Pa.C.S.A. § 3323(c.1), in two ways. With the
consent of both parties, the court may enter a decree of divorce or
annulment prior to the final determination and disposition of the matters
provided for in subsection (b). See 23 Pa.C.S.A. § 3323(c.1). However, in
the absence of consent of both parties, the court may enter a decree of
divorce or annulment prior to the final determination and disposition of
matters provided for in subsection (b) only if:
(1) grounds have been established as provided in subsection (g); and (2) the moving party has demonstrated that: i. compelling circumstances exist for the entry of the decree of divorce or annulment; and
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ii. sufficient economic protections have been provided for the other party during the pendency of the disposition of the matters provided for in subsection (b).
Id. The parties to this case have not consented to bifurcation in any way nor
has the trial court explicitly entered an order granting bifurcation under
Section 3323.
Non-consensual bifurcation proceedings must strictly adhere to the
provision of Section 3323(c.1). Compelling reasons must be shown by the
moving party in order to justify bifurcation of the proceedings, and sufficient
economic protections must be provided.
The decision to bifurcate, though permissible, should not be made pro
forma. See Wolk, 464 A.2d at 1362.
Rather, such a determination should be made only after the disadvantages and the advantages have been carefully explored and analyzed. Each case must be reviewed on its own facts and only following the court's determination that the consequences of bifurcating the case will be of greater benefit than not bifurcating, should it grant the petition.
Id.
Since consent for bifurcation was not freely given, and a hearing was
not held on the issue to make specific findings, we conclude bifurcation was
not granted in this case and therefore Pennsylvania law regarding bifurcated
cases is not applicable here.
Wife next argues that the trial court erred in finding that she was
required to request a supersedeas during the pendency of her appeal to
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J-A13003-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANN B. GRAZIANI, FORMERLY KNOWN IN THE SUPERIOR COURT OF AS ANN B. DUNN PENNSYLVANIA
Appellant
v.
THOMAS W. DUNN, III
Appellee No. 1460 WDA 2014
Appeal from the Order August 6, 2014 In the Court of Common Pleas of Washington County Civil Division at No(s): 2009-3151
BEFORE: PANELLA, J., SHOGAN, J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED JULY 27, 2015
Ann B. Graziani, formerly known as Ann B. Dunn, (“Wife”), challenges
a divorce decree entered on November 20, 2012. Specifically, she challenges
the trial court’s determination, by way of an order entered August 6, 2014,
that the decree was effective to divorce her from Thomas Dunn (“Husband”),
despite this Court having vacated the decree in part and remanded the case
to the trial court for further proceedings consistent with a previous
memorandum decision. See Graziani v. Dunn, No. 1980 WDA 2012 (Pa.
Super., filed March 21, 2014) (unpublished memorandum). We affirm.
Wife filed a complaint in divorce on April 17, 2009, requesting a no-
fault divorce under 23 Pa.C.S.A. § 3301(c) along with ancillary economic
claims. Husband and Wife each filed affidavits of consent to the divorce. J-A13003-15
After multiple hearings on the economic claims, the divorce master
issued a report and recommendation. In this report, the master made
recommendations to the trial court on the economic issues and that a
divorce decree should be entered under § 3301(c) of the divorce code. From
this recommendation, both Husband and Wife filed exceptions on various
economic issues. After briefing and argument, the trial court issued an order
disposing of both parties’ exceptions. The trial court issued orders correcting
the order of distribution and issued a final decree in divorce on November
20, 2012.
Wife filed a timely appeal with this Court. In her concise statement of
matters complained of on appeal, Wife identified ten issues, all of which
were economic related issues. None of the issues specifically identified entry
of the § 3301(c) decree as an error.
The previous panel of this Court identified eight economic issues
briefed and argued by Wife and addressed each issue individually. In its
holding, the Superior Court reversed the trial court with regard to Wife’s
first, second, and fifth issues (pension, continuance, and alimony
respectively); vacated as to her third, fourth, and sixth issues (attorney’s
fees, credit against equitable distribution, and pension respectively);
remanded as to issue eight (restricting evidence); and found no merit in her
issue seven (loss of value of marital residence). See Graziani, No. 1980
-2- J-A13003-15
WDA 2012 at 17-18. The panel then remanded the case to the trial court for
proceedings consistent with its opinion. See id.
Subsequent to the entry of the divorce decree, Husband remarried in
Florida on October 31, 2013. In May 2014, Husband’s employer terminated
his employment and he applied for retirement benefits through his union in
June 2014. In his application for retirement benefits, Husband named his
current spouse as the beneficiary. Wife then petitioned the trial court for an
order enjoining the union’s pension fund from recognizing the current
spouse, instead identifying Wife as his current spouse, and precluding paying
out pension benefits to Husband.
The trial court entered an order on August 6, 2014, concluding that
Husband and his current spouse were legally married as a result of the
divorce decree and subsequent marriage. The trial court enjoined the
pension fund from paying any pension benefits to Husband pending a final
qualified domestic relations order (“QDRO”). Wife moved for reconsideration,
arguing that her survivor’s benefits from Husband’s retirement could be
affected by his remarriage. After the trial court denied reconsideration, Wife
filed a timely notice of appeal of the August 6 order. Wife’s stated reason for
opposing Husband’s motion for reconsideration of the July 10 order was that
her rights to Husband’s retirement benefits through his union pension fund
could be affected by a subsequent marriage. Pending this appeal, Husband
-3- J-A13003-15
and Wife executed a QDRO, which the trial court issued on December 17,
2014, resolving the issue of Husband’s retirement.
Wife claims that the trial court erred in finding that its previously-
entered divorce decree was effective to divorce the parties, despite Wife’s
pending appeal from the divorce decree.
Wife first argues the trial court erred in holding that since both
Husband and Wife had filed affidavits of consent prior to the entry of a
divorce decree, that these affidavits were akin to a consent to bifurcation of
the divorce proceedings. “Bifurcation separates the termination of the
marriage from the distribution of property so that the marriage and each
party’s personal life are not held hostage to economic demands.” Wolk v.
Wolk, 464 A.2d 1359, 1361 (Pa. Super. 1983).
The Pennsylvania Divorce Code permits parties to bifurcate their
divorce proceedings, under 23 Pa.C.S.A. § 3323(c.1), in two ways. With the
consent of both parties, the court may enter a decree of divorce or
annulment prior to the final determination and disposition of the matters
provided for in subsection (b). See 23 Pa.C.S.A. § 3323(c.1). However, in
the absence of consent of both parties, the court may enter a decree of
divorce or annulment prior to the final determination and disposition of
matters provided for in subsection (b) only if:
(1) grounds have been established as provided in subsection (g); and (2) the moving party has demonstrated that: i. compelling circumstances exist for the entry of the decree of divorce or annulment; and
-4- J-A13003-15
ii. sufficient economic protections have been provided for the other party during the pendency of the disposition of the matters provided for in subsection (b).
Id. The parties to this case have not consented to bifurcation in any way nor
has the trial court explicitly entered an order granting bifurcation under
Section 3323.
Non-consensual bifurcation proceedings must strictly adhere to the
provision of Section 3323(c.1). Compelling reasons must be shown by the
moving party in order to justify bifurcation of the proceedings, and sufficient
economic protections must be provided.
The decision to bifurcate, though permissible, should not be made pro
forma. See Wolk, 464 A.2d at 1362.
Rather, such a determination should be made only after the disadvantages and the advantages have been carefully explored and analyzed. Each case must be reviewed on its own facts and only following the court's determination that the consequences of bifurcating the case will be of greater benefit than not bifurcating, should it grant the petition.
Id.
Since consent for bifurcation was not freely given, and a hearing was
not held on the issue to make specific findings, we conclude bifurcation was
not granted in this case and therefore Pennsylvania law regarding bifurcated
cases is not applicable here.
Wife next argues that the trial court erred in finding that she was
required to request a supersedeas during the pendency of her appeal to
keep the decree from becoming final. We agree with the trial court.
-5- J-A13003-15
Wife asserts that her appeal suspended the operation of the divorce
decree and that the parties were still husband and wife during the pendency
of the appeal. See Appellant’s Brief, at 10. Wife cites Prol v. Prol, 840 A.2d
333 (Pa. Super. 2003), in support of her position stating “[w]ife’s appeal to
this Court … suspended the effect of the decree.” Id. at 335. However, Wife
fails to acknowledge that the appeal in Prol included an application for stay
of the trial court’s entry of the divorce decree. See id. at 334. See also
Monroe County Children & Youth Services v. Werkeiser, 598 A.2d 313
(Pa. Super. 1991) (mere filing of an appeal does not ordinarily automatically
operate as a supersedeas and party seeking a supersedeas must comply
with Rules of Appellate Procedure to obtain one).
Wife correctly points out that Rule 1731(b) of the Pennsylvania Rules
of Appellate Procedure is not applicable in this case. This rule specifically
applies to appeals from “an order of child support, spousal support, alimony
pendent lite, equitable distribution or counsel fees and costs” which does not
include appeals from the divorce decree itself. The reason for this rule is to
protect the awardees of economic support from delays in the disbursement
of these needed funds pending the appeal. See Cruse v. Cruse, 737 A.3d
771 (Pa. Super. 1999).
However, this case is governed by our Rules of Appellate Procedure,
such that an application for a stay of an order of a lower court pending
appeal must be made in the first instance to the lower court. See Pa.R.A.P.
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1732(a). Any litigant seeking such a stay would have to demonstrate
entitlement thereto. Pa. Public Util. Comm’n v. Process Gas Consumers
Group, 467 A.2d 805, 809 (Pa. 1983). The grant of a stay is warranted if:
1. The petitioner makes a strong showing that he is likely to prevail on the merits. 2. The petitioner has shown that without the requested relief, he will suffer irreparable injury. 3. The issuance of a stay will not substantially harm other interested parties in the proceedings. 4. The issuance of a stay will not adversely affect the public interest.
Id. at 808-809.
It is essential that an unsuccessful party who seeks a stay of a final
order pending appellate review make a strong showing under the criteria
enunciated in Process Gas in order to justify the issuance of a stay. See
Prol, 840 A.2d at n.3 (applying Process Gas standard in application for
stay of disposition of marital assets); Dincer v. Dincer, 666 A.2d at 287
(Pa. Super. 1995), rev’d on other grounds, 701 A.2d 210 (Pa. 1997).
Wife did not seek a supersedeas and consequently did not make a
showing of the required criteria. Thus, we conclude she did not ensure that
the decree from which she appealed would be suspended.
Although Wife did not raise these factors herself, it is of note that she
would not suffer irreparable injury, as the relief she seeks has already been
resolved by a QDRO dividing Husband’s pension.
Although we agree that this was not a bifurcated divorce case, we
nevertheless agree with the trial court’s determination that the divorce
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decree of November 20, 2012 was effective to divorce the parties to this
case since Wife did not seek a supersedeas to the decree.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/27/2015
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