MacKenzie, C. v. Bufalino, C.

• Court: Superior Court of Pennsylvania
• Decided: November 18, 2014
• Docket: 3129 EDA 2013
• Status: Unpublished

Opinion

J-A21026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

* 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. J-A21026-14

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

_______________________________________________ 1 All debt associated with the marital residence was discharged and [Bufalino] is no longer obligated for any debts arising from the marital residence. _______________________________________________

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.”

_______________________________________________ 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. _______________________________________________

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

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

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).

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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