J-A21030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DAVID F. CAPPONI                          :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
               v.                          :
                                           :
                                           :
 LISA ANN CAPPONI                          :   No. 3547 EDA 2017

              Appeal from the Decree Dated September 7, 2017
            In the Court of Common Pleas of Montgomery County
                  Domestic Relations at No(s): 2010-14646


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                           FILED OCTOBER 24, 2018

      David F. Capponi (“Husband”) appeals pro se from the decree entered

on September 7, 2017. We modify the decree.

      On September 2, 1995, Husband married Lisa Ann Capponi (“Wife”). On

December 7, 2001, Wife was attacked by the parties’ dog. They filed suit

against the kennel that sold the dog and settled for a net amount of

$473,112.13.

      On June 4, 2010, Husband filed a complaint in divorce which included a

request for equitable distribution of the parties’ marital property. Prior to any

hearing on the equitable distribution of the parties’ property, Husband and

Wife each received $10,000.00 when Wife’s name was removed from the deed

of the marital residence and Husband refinanced the property in his name.

On May 13, 2016, a master conducted a hearing on the equitable distribution
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issues. On May 20, 2016, he issued his report and recommendation. Wife

filed exceptions to the report and recommendation.

       Thereafter, a dispute arose regarding the date of the parties’ separation.

After a hearing on the issue, the trial court found that the parties separated

in Spring 2004.      On August 7, 2017, the trial court held another hearing

regarding the equitable distribution issues. On September 7, 2017, the trial

court issued a decree dissolving the matrimonial bond between the parties

and equitably distributing the marital property.          Husband’s timely appeal

followed.1

       Husband presents one issue for our review:

       Whether the [trial] court abused its discretion and deviated from
       the statute in the analyzation and distribution of marital assets
       when erroneous valuations were used and [] Wife misrepresented
       the facts?

Husband’s Brief at 5 (complete capitalization removed).

       In his lone issue, Husband argues that the trial court erred in equitably

distributing the marital property.             We review a trial court’s equitable

distribution of property for an abuse of discretion. Cook v. Cook, 186 A.3d

1015, 1019 (Pa. Super. 2018) (citation omitted). Husband argues that the

trial court erred: (1) by awarding Wife 50% of the marital residence; (2) by


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1  On October 29, 2017, the trial court ordered Husband to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On November 7, 2017, Husband filed his concise
statement. On February 9, 2018, the trial court issued its Rule 1925(a)
opinion.

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finding that the entire current value of his retirement account was marital

property; and (3) by failing to reduce Wife’s award because she spent the

entirety of the settlement to fuel her drug addiction. We address these three

claims seriatim.

      First, Husband argues that the trial court erred in awarding Wife 50% of

the marital residence.       He contends that, while this divorce action was

pending, Wife relinquished any claim to the marital residence by accepting a

$10,000.00 payment in exchange for her share of the marital residence. This

argument, however, is a mischaracterization of the agreement the parties

reached in 2015.

      The evidence indicates that Wife did not agree to relinquish all claims

related to the marital home in exchange for $10,000.00. An affidavit executed

by the parties at the time of the payment and refinancing, states that Wife

received the $10,000.00 “payment [a]s a portion of [the m]arital

[d]istribution.” Exhibit H-1 at 1 (emphasis added). Another document signed

by the parties at the time of the refinancing provided that they “agree[d] that

the remaining equity of the home [would] be addressed at an [e]quitable

[d]istribution [h]earing.”    Exhibit W-1 at 1.   Wife and Husband agreed to

receive $10,000.00 each at the time of the refinancing while not forgoing any

rights related to the remaining equity in the marital property. Hence, contrary

to Husband’s argument, the trial court correctly declined to construe the




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parties’ agreement as having          extinguished   Wife’s right to    equitable

distribution of the equity in the marital residence.

         Alternatively, Husband argues that the trial court erred in awarding Wife

50% of the marital residence because she did not contribute to its upkeep

during the course of the marriage. This argument fails because the record

supports the trial court’s factual finding that Wife contributed to the upkeep

of the marital residence. See Exhibit W-2 at 1 (check evidencing a mortgage

payment made by Wife); N.T., 8/7/17, at 112-113, 138-139, 178-179 (Wife

testifying that she helped pay the mortgage and utilities and bought household

furnishings). Accordingly, we conclude that the trial court did not abuse its

discretion in awarding Wife 50% of the marital residence.

         Next, Husband argues that the trial court erred in finding the entire

current value of his retirement account, $78,891.47, was a marital asset.

According to Husband, only $41,805.27, the value of the retirement account

at the time of separation, was a marital asset. He contends that the remaining

$37,086.20 was a personal asset not subject to equitable distribution. We

conclude that all but $3,200.00 in Husband’s retirement account was a marital

asset.

         The Divorce Code provides that, except in circumstances not present in

the case sub judice, “[p]roperty acquired after final separation until the date

of divorce” is not marital property. 23 Pa.C.S.A. § 3501(a)(4). As this Court

has explained, because an annuity is


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       deferred compensation, the portion of the retirement reserve
       attributable to the duration of the marriage is marital property.
       While increases due to interest or returns on investment in the
       value of the amount contributed during the marriage are marital
       property, contributions by the employee or employer after the
       date of separation are not marital property.

Schneeman v. Schneeman, 615 A.2d 1369, 1376 (Pa. Super. 1992)

(internal citation omitted; emphasis removed). Husband bore the burden of

proving that a portion of his annuity was a personal asset. See Drake v.

Drake, 725 A.2d 717, 723 (Pa. 1999).

       Husband testified that he never contributed to the annuity, either before

or after the parties separated.          The entire value of the annuity was his

employer’s contributions and appreciation of those contributions. Husband

conceded at the equitable distribution hearing that the $41,805.27 had

appreciated after the parties separated. See N.T., 8/7/17, at 61. The trial

court attempted to explain why, given this answer, deducting $41,805.27

from $78,891.47 to determine the amount contributed by Husband’s employer

after the date of separation was inappropriate. See id. The trial court also

attempted to explain why documentary evidence was necessary because of

Husband’s testimony. See id.

       Husband, however, only presented evidence that his employer

contributed $3,200.00 to the annuity after the date of separation. 2         He

therefore failed to carry his burden of proving that the remaining increase in

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2The statement Husband provided for the annuity’s value on September 30,
2015 stated that his employer contributed $3,200.00 “[y]ear to [d]ate.”
Answer to Request for Production of Documents, 4/4/16, at 321.

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the value of the annuity after the parties separated was non-marital property.

Accordingly, the trial court erred in finding that the entire value of the annuity

was marital property. In the interest of judicial economy, and because the

trial court unambiguously stated it was dividing the marital estate, and the

annuity, 50/50, we modify the first sentence of the third paragraph on page

eight of the decree to read “Plaintiff-Husband’s Local 542 annuity (at its

current value minus $3,200.00) shall be divided 50/50 between the parties.”

Cf. 42 Pa.C.S.A. § 706 (“An appellate court may affirm, modify, vacate, set

aside[,] or reverse any order brought before it for review[.]”).3

       Finally, Husband argues that the trial court erred in not reducing the

amount of marital property awarded to Wife because of wasted money on her

drug addiction. This argument is waived. Generally, issues not included in a

concise statement are waived. Commonwealth v. Golson, 189 A.3d 994,

1000 (Pa. Super. 2018), citing Pa.R.A.P. 1925(b)(4)(vii).         In his concise

statement, Husband argued only that the trial court erred in awarding Wife

50% of the marital residence because she used the injury settlement funds

on drugs instead of on upkeep of the marital residence.             See Concise

Statement, 11/7/17, at 2. We have rejected that argument for the reasons

set forth above.       Husband did not separately argue that Wife’s use of

settlement funds to finance her drug addiction supported a separate and
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3Any appreciation of the annuity attributable to the $3,200.00 would also be
non-marital property; however, Husband provided no evidence showing the
amount of appreciation attributable to the $3,200.00 contributed by his
employer after the parties separated.

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independent reason to reduce her share of the equitable distribution. See id.

at 1-2. Hence, Husband waived his argument that the trial court erred in not

reducing the amount of marital property awarded to Wife because of her

alleged expenditure of money on her drug addiction.

     Decree modified. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/18




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