J-A07043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 CONCETTA TINA CAPERELLI                   :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                     Appellant             :
                                           :
                                           :
               v.                          :
                                           :
                                           :
 VINCENT JAMES CAPERELLI SR.               :   No. 2492 EDA 2018

                Appeal from the Order Entered July 17, 2018
    In the Court of Common Pleas of Bucks County Domestic Relations at
                     No(s): No. A06-2015-61689-D-35


BEFORE:      OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                           FILED MAY 28, 2019

        Concetta Tina Caparelli (“Wife”) appeals from the order entered July 17,

2018 in which, following reconsideration, the trial court reaffirmed its grant of

a divorce between Wife and Vincent James Caparelli, Sr. (“Husband”) and the

equitable division of the parties’ marital estate. Wife raises several challenges

concerning the trial court’s equitable distribution scheme.        After careful

review, we affirm.

        Husband, born June 24, 1945, and Wife, born October 24, 1945, were

married on June 24, 1967. After forty-six years of marriage, they separated

on September 30, 2013. The parties continued to live in the same residence

and incur joint expenses until the parties physically separated on July 27,

2015.    The parties have two adult children, who are financially independent.

        During the marriage, Husband was first employed by the U.S. Postal

Service (USPS) for 33 years.      After retiring from USPS in 2000, Husband

____________________________________
* Former Justice specially assigned to the Superior Court.
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worked for Harleysville Insurance until January 2014. Husband now works

part-time for the Bucks County Justice Center, making $14,155/year in gross

income. Husband receives a pension from the Civil Service Retirement System

(CSRS) of $3,444/month based on his USPS employment; Husband was not

covered by Social Security as a CSRS employee.         Husband also receives

$1,144/month in Social Security from employment after his USPS retirement.

     Wife   receives   $1,222/month    from   Social   Security   and   makes

approximately $10,000/year in income as a self-employed massage therapist.

During the marriage, Wife received $30,000 through inheritance; she received

$150,000 inheritance after the parties separated.

     On September 16, 2015, Wife filed for divorce with a claim for equitable

distribution. On January 31, 2018, the Master recommended that the parties’

assets (roughly totaling $600,000) be divided approximately in half and

required Wife to pay Husband $12,753 to reach this ratio.         The Master

recommended that Wife receive $961 monthly from Husband’s CSRS pension

as well as the pension’s survivor annuity benefit, which the parties’ joint

actuarial expert found had a present value of $755/month.

     Wife requested a trial de novo in the trial court. In an order dated June

6, 2018 and docketed June 11, 2018, the trial court entered a divorce decree

and equitable distribution order that adopted the Master’s recommendation

for a division of the marital property, but eliminated the $12,753 payment

from Wife to Husband. As a result, the trial court noted that Wife and Husband

received 51.9% and 48.1% of the marital assets, respectively. The trial court

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adopted the Master’s recommendation with respect to Husband’s CSRS

pension and the survivor annuity benefit.

      Both parties filed motions for reconsideration. On July 5, 2018, Wife

filed a notice of appeal. In an order entered July 10, 2018, the trial court

granted Husband’s motion for reconsideration in part to set the effective date

of the payment of Husband’s pension benefits to Wife to be September 16,

2013. On July 17, 2018, the trial court entered a second order amending the

effective date of the payment of pension benefits to Wife to be September 16,

2015; the trial court indicated that the previous date had been “erroneously

provided to the Court by counsel and [was] now being corrected as agreed by

counsel.” Amended Order, 7/17/18, at 1. The trial court denied the parties’

motions for reconsideration as to all other relief requested.

      On August 16, 2018, Wife filed a second notice of appeal. Wife complied

with the trial court’s direction to file a Concise Statement of Errors Complained

of on Appeal pursuant to Pa.R.A.P. 1925(b). On October 9, 2018, this Court

quashed Wife’s first appeal of the trial court’s decree/order that was dated

June 6, 2018 and docketed on June 11, 2018.          As the trial court granted

Husband’s motion for reconsideration in part on July 10, 2018 and entered an

amended order on July 17, 2018, the timely and express grant of

reconsideration rendered inoperative Wife’s first notice of appeal.         See

Pa.R.A.P. 1701(3)(b)(ii) (a timely order expressly granting reconsideration

under this paragraph shall render inoperative any such notice of appeal);

Cheathem v. Temple Univ. Hosp., 743 A.2d 518 (Pa.Super. 1999) (trial

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court must expressly grant reconsideration within the time allowed for filing

an appeal, in order to toll the time for taking an appeal).

       Wife raises the following issues for our review on appeal:1

       1. The Court erred in relying on the case Palladino v. Palladino,
          (Pa.Super. 1998) to the effect that Wife’s share of the pension
          must necessarily be reduced by the actuarial present value of
          Wife’s survivor annuity at all or by considering the cost of the
          survivor annuity as an alternate method of accounting for the
          survivor annuity.

       2. The Court erred in failing to allow Wife to reduce her survivor
          benefit and thereby reduce her survivor benefit cost.

       3. The Court erred in dividing Husband’s CSRS pension $961 per
          month to Wife and $2,550 per month to Husband.

              a. The amount $961 per month was the amount calculated
                 by the Master based on actuarial present values and was
                 mathematically incorrect.

              b. The Court failed to discuss and justify the resulting
                 disparity in income as a factor under Divorce Code
                 Section 3502(a)(6).

              c. The Court erred by failing to state the basis of the
                 awarded amount.

       4. The Court erred in failing to award Wife an amount based on
          Husband’s pension income received after the date of separation
          and prior to a support order being entered.



____________________________________________


1 Husband asserts that Wife’s 1925(b) statement does not precisely align with
her Statement of the Questions Involved in her appellate brief. While Wife
reworded her claims in her issue statement in her appellate brief, all of her
arguments are encompassed within claims raised in the 1925(b) statement.
We will analyze the appeal based on Wife’s claims of error in her 1925(b)
statement, which are more clearly stated.

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       5. The Court erred in entering a final divorce order without first
          entering a QDRO (COAP).

       6. The Court erred in failing to account for a cost of living increase
          on Husband’s CSRS pension that was awarded for 2018.

       7. The Court erred in failing to find that Wife had received and
          maintained $30,000 as her separate property.

Wife’s 1925(b) Statement, 7/26/18, at 1-2 (reordered for ease of review).2

       In reviewing a challenge to the trial court's equitable distribution

scheme, we are guided by the following standard:

          A trial court has broad discretion when fashioning an award
          of equitable distribution. Our standard of review when
          assessing the propriety of an order effectuating the
          equitable distribution of marital property is whether the trial
          court abused its discretion by a misapplication of the law or
          failure to follow proper legal procedure. We do not lightly
          find an abuse of discretion, which requires a showing of clear
          and convincing evidence. This Court will not find an “abuse
          of discretion” unless the law has been overridden or
          misapplied or the judgment exercised was manifestly
          unreasonable, or the result of partiality, prejudice, bias, or
          ill will, as shown by the evidence in the certified record. In
          determining the propriety of an equitable distribution award,
          courts must consider the distribution scheme as a whole.
          We measure the circumstances of the case against the
          objective of effectuating economic justice between the
          parties and achieving a just determination of their property
          rights.

       Carney v. Carney, 167 A.3d 127, 131 (Pa.Super. 2017) (internal
       citations, quotation marks, and quotation omitted). Moreover, it
       is within the province of the trial court to weigh the evidence and
       decide credibility, and this Court will not reverse those

____________________________________________


2 Wife did claim in her 1925(b) statement that the Court erred in modifying
its original decree/order more than 30 days after entry. However, as
explained above, the trial court timely modified its order on July 10, 2018,
within 30 days of the day it was docketed on June 11, 2018.

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      determinations as long as they are supported by the evidence.
      Sternlicht v. Sternlicht, 822 A.2d 732, 742 (Pa.Super. 2003).

Schultz v. Schultz, 184 A.3d 168, 174 (Pa.Super. 2018).

             In the context of an equitable distribution of marital
      property, a trial court has the authority to divide the award as the
      equities presented in the particular case may require. Equitable
      distribution does not presume an equal division of marital property
      and the goal of economic justice will often dictate otherwise.... We
      look at the distribution as a whole, in light of a trial court's overall
      application of the factors enumerated at 23 Pa.C.S.A. § 3502(a).

Schenk v. Schenk, 880 A.2d 633, 639 (Pa.Super. 2005) (quoting Mercatell

v. Mercatell, 854 A.2d 609, 611-12 (Pa.Super. 2004)).

      In her first argument, Wife argues that the trial court erred in assessing

to her the entire actuarial value or cost of the survivor annuity, and asserts

that this cost should be equitably shared by the parties. As noted above, upon

Husband’s retirement, the parties jointly elected that Husband’s pension

benefits would be reduced in consideration for Wife receiving a survivor

annuity, which provides that if Husband predeceases Wife, she will receive a

monthly survivor annuity payment for the rest of her lifetime. The trial court

recognized that if Husband were to pass away, Wife’s $961 monthly share of

Husband’s pension would increase to $2,200 each month.

      The survivor annuity is Wife’s vested property interest and may be

assessed to her in the equitable distribution scheme. Palladino v. Palladino,

713 A.2d 676, 679 (Pa.Super. 1998) (“[t]he survivor annuity is a vested

property interest of wife and it is separate and distinct from husband's

pension. Just as husband's marital pension benefits are assessed to him, so



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too are wife's survivor annuity benefits properly assessed to her in the

equitable distribution scheme”). Although Wife suggests that Husband should

be assessed part of the value of the survivor annuity, the trial court did not

abuse its discretion in assigning this asset entirely to Wife as she is the only

party who will benefit from such a marital asset.

      Second, Wife suggests that the trial court should have permitted her to

“reduce” her survivor benefit such that she could receive a greater portion of

Husband’s current benefits. Wife’s Brief, at 27. However, the trial court found

the “survivor annuity is vested property not subject to division, not a waivable

option that Wife may elect to reduce to obtain a larger share of the CSRS

pension.”   Trial Court Opinion (T.C.O.), 10/18/18, at 10.       The trial court

emphasized that Husband’s monthly payment has been reduced for the

survivor annuity for nearly two decades since Husband’s retirement in 2000.

      Although Wife may be unsatisfied with the equitable distribution award

as she may prefer a higher portion of Husband’s pension instead of the

protection offered by the survivor annuity in the event of Husband’s death,

Wife’s survivor benefit is a vested interest for which the parties paid valuable

consideration for numerous years.        Moreover, we note that Wife never

challenged Husband’s assertion that his election of a survivorship benefit for

Wife was irrevocable once his pension entered pay status.        Wife does not

explain how she would be able to “reduce” the annuity and even acknowledges

that “[i]t may not be possible to effectuate a reduction at this time.” Wife’s

Brief, at 28. As a result, we find this claim to be meritless.

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      Third, Wife contends that the trial court’s division of Husband’s CSRS

pension was inequitable, asserting that the pension should have been divided

in half.   At the time of the trial court’s equitable distribution award, both

parties were seventy-three years old and had been married for forty-six years

before their separation in 2013. The trial court noted that both parties claimed

to be in good health, had part-time employment that produced comparable

income, and received similar amounts of Social Security income, even though

Husband had higher wages during the marriage. Thus, the key differences in

the parties’ finances relate to Husband’s CSRS pension and Wife’s separate

property received through inheritance.

      As noted above, Husband receives a monthly pension payment of

$3,433. With the assistance of the parties’ joint actuarial expert, the value of

the survivor annuity deduction was determined to be $755/month. Based on

the Master’s recommendation to assign half of Husband’s CSRS pension to

Wife and reduce that by the value of the survivor annuity, the trial court

assigned Wife $961/month from Husband’s pension, leaving Husband with

$2,517/month. When these values are considered with their respective Social

Security income, Husband will receive $3,661 each month and Wife will

receive $2,938 each month (which includes the actuarial value of the annuity).

      Rejecting Wife’s demand that the parties have equal distributions of

income from Husband’s pension, the trial court indicated that its goal was to

ensure its entire division of the marital estate was equitable given all the facts

and circumstances. The trial court achieved this goal by giving Husband a

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larger portion of the CSRS pension due to his thirty-three years of service with

USPS.    The trial court also recognized that Wife has substantial separate

property to which Husband has no claim.

      Further, the trial court recognized the inequity in the fact that the

Husband’s CSRS retirement benefits are considered marital property subject

to division, while Wife’s Social Security benefits are exempt from equitable

distribution.   This Court has provided:

      Social Security benefits are not subject to equitable distribution.
      Flemming v. Nestor, 363 U.S. 603, 609–10, 80 S.Ct. 1367,
      1371–72, 4 L.Ed.2d 1435 (1960) (“To engraft upon the Social
      Security system a concept of ‘accrued property rights' would
      deprive it of the flexibility and boldness in adjustment to
      everchanging conditions which it demands”). Social Security
      retirement benefits are not considered marital property and
      cannot be distributed as part of the marital estate under
      Pennsylvania's Divorce Code. Powell v. Powell, 395 Pa.Super.
      345, 353, 577 A.2d 576, 580 (1990).

Cohenour v. Cohenour, 696 A.2d 201, 204 (Pa.Super. 1997).

      In comparison to Wife’s Social Security benefits which are shielded from

equitable distribution, Husband is at a disadvantage as his income from his

thirty-three years of CSRS employment, which would have been used to

finance his Social Security benefits, is not similarly shielded. This Court has

discussed the inequity of the “double blow” that a CSRS participant faces in

divorce without a Social Security offset:

      The [CSRS] pension will become part of the marital estate and,
      thus, divided, yet there will be no Social Security benefit waiting
      to cushion this financial pitfall. The situation is exacerbated, thus
      providing a second “blow,” in that the money that would, in a
      conventional setting, be routed into Social Security, and thus into

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      an exempt status, would either have been consumed by the
      couple, thus providing previous benefits enjoyed by both, or,
      perhaps, routed into the CSRS or another retirement type vehicle,
      which, of course, would then be included in the marital estate.

Cornbleth v. Cornbleth, 580 A.2d 369, 371–72 (Pa.Super. 1990).

      Under such circumstances, Wife’s Social Security benefits are a benefit

to Wife and a detriment to Husband. See id. at 372. In similar cases, our

courts have recognized the need to equate the circumstances faced by a CSRS

participant and a Social Security participant:

      “To the extent individuals with Social Security benefits enjoy an
      exemption of that ‘asset’ from equitable distribution, we believe
      those individuals participating in the CSRS must, likewise, be so
      positioned.” Cornbleth v. Cornbleth, 397 Pa.Super. 421, 425,
      580 A.2d 369, 371 (1990), alloc. denied, 526 Pa. 648, 585 A.2d
      468 (1991). Therefore, “to the extent part of the [CSRS] pension
      might figuratively be considered ‘in lieu of’ a social security
      benefit[,] we believe that portion should be exempted from the
      marital estate.” Id.; see also Twilla v. Twilla, 445 Pa.Super.
      86, 664 A.2d 1020 (1995).

Cohenour, 696 A.2d at 204.

      In this case, the parties’ actuarial expert determined that, had Husband

participated in Social Security instead of the CSRS pension plan, he would

have obtained $1,163 more in Social Security benefits that would have been

payable to Husband alone.       However, the trial court chose not to use a

straightforward application of the Cohenour rule in employing a full setoff of

Wife’s Social Security benefits, which it found would be “unnecessarily

disadvantageous to Wife.”    T.C.O. at 8. In addition, the trial court indicated

that it would be too harsh to Husband to divide his pension equally among the

parties. As a result, the trial court divided Husband’s CSRS pension to slightly


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favor Husband, but by less than a full Social Security offset as recommended

in Cohenour.

      Wife argues that the trial court should not have utilized any Social

Security offset as Husband receives Social Security benefits from his

employment after his retirement from USPS. This Court rejected a similar

argument in Rimel v. Rimel, 913 A.2d 289 (Pa.Super. 2006), finding that the

trial court erred in failing to employ a Social Security setoff when calculating

the value of the husband’s CSRS pension, “notwithstanding the fact that

Husband also participated in Social Security through some of his other jobs.”

Id. at 292. Considering the trial court’s equitable distribution scheme as a

whole, we find that the trial court properly exercised its discretion in dividing

Husband’s pension between the parties.

      Fourth, Wife argues that the trial court erred in failing to award her a

share of Husband’s pension income that was distributed after the date of

separation and prior to a support order being entered. The parties agree that

the money Husband received from his pension during this time period is

marital property subject to equitable distribution.

      However, the trial court emphasized that during this same time period,

Wife lived in the marital residence and refused to contribute to particular joint

expenses such as the taxes, utilities, and homeowners’ insurance. In addition,

Husband continued to pay premiums for Wife’s auto insurance and her

medical, dental, and vision insurance. Based on these facts, we find the trial




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court properly exercised its discretion in finding that Wife was not entitled to

an additional award to achieve an equitable distribution.

      Fifth, Wife claims the trial court erred in entering a final divorce order

without first entering a qualified domestic relations order (QDRO) or a court

order acceptable for processing (COAP).        In this case, the trial court’s

decree/order of equitable distribution states that Husband’s pension shall be

distributed through a COAP and directs the parties to retain Matthew Morley,

Esq. to prepare the COAP.

      Our Supreme Court has provided that a QDRO “creates or recognizes

the rights of an alternate payee to receive all or a portion of the benefits

payable to a participant under the plan.” Smith v. Smith, 595 Pa. 80, 85,

938 A.2d 246, 248 (2007) (citation omitted). For the QDRO to be “qualified,”

it must include “certain required information and may not alter the amount or

form of plan benefits”; however, “[t]he actual qualifying of the domestic

relations order is done by the employer's pension administrator.” Id.

      Wife does not offer any authority or analysis to support her claim that it

was improper for the trial court enter a divorce decree and equitable

distribution order directing the QDRO or COAP to be prepared by a third party.

As a result, Wife’s claim is waived for lack of development. See Affordable

Outdoor, LLC, v. Tri-Outdoor, Inc., ___A.3d___, 2019 PA Super 127 (Apr.

24, 2019) (“[M]ere issue spotting without analysis or legal citation to support

an assertion precludes our appellate review of a matter”) (citation omitted).




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      Even if properly preserved, we note that this Court has permitted trial

courts to direct the parties to retain counsel to prepare QDROs in accordance

with the divorce decree and equitable distribution order.       See Zehner v.

Zehner, 195 A.3d 574, 578 (Pa.Super. 2018); Prol v. Prol, 935 A.2d 547,

549 (Pa.Super. 2007); Grieve v. Mankey, 679 A.2d 814, 815 n.3 (Pa.Super.

1996). As a result, we find Wife’s claim to be meritless.

      Sixth, Wife claims the trial court erred in failing to account for a cost of

living adjustment (COLA) on Husband’s CSRS pension that was awarded for

2018 and for future COLA that will be applied to the pension. The parties

agree that COLAs applied to a pension are marital property subject to

equitable distribution.   In MacDougall v. MacDougall, 49 A.3d 890, 896

(Pa.Super. 2012), this Court found that a pension’s COLA is marital property

subject to proportionate distribution as they accrue without any effort or

contribution by a party, and are instead the result of passive appreciation.

      In this case, it appears that the trial court recognized that the COLA was

marital property, as it found the COLA adjustments to Husband’s pension,

“raising the total pension outlay by a given percentage, apply to Wife’s portion

as well as Husband’s by operation of law and do not require [the] Court to

issue additional orders.” T.C.O. at 10. As a result, Wife’s issue is meritless.

      Lastly, Wife asserts that the trial court erred in requiring Wife to provide

documentation to support her claim that she held separate property not

subject to equitable distribution.     We note that “[t]he determination of

whether an asset is part of the marital estate is a matter within the sound

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discretion of the trial court.”   Tagnani v. Tagnani, 654 A.2d 1136, 1138

(Pa.Super. 1995).     “Generally, property acquired during the marriage by

bequest, devise, or descent is non-marital property. However, once non-

marital property is combined and co-mingled with marital property, it loses its

identity as non-marital property and takes on the status of marital property.”

Verholek v. Verholek, 741 A.2d 792, 797 (Pa.Super. 1999) (citing 23

Pa.C.S.A. § 3501(a)(3)) (other citations omitted).

      Wife claimed that she had received an inheritance of $30,000 in 2006,

seven years before the parties had separated. However, the trial court noted

that Wife failed to present any supporting documentation of the existence of

the inheritance and whether those funds still existed on the date of the parties’

separation. As Wife’s failure to present any documentation prevented the trial

court from determining whether such inheritance was comingled with marital

property, the trial court did not abuse its discretion in refusing to consider this

sum to be Wife’s separate property.

      For the foregoing reasons, we conclude that the trial court properly

exercised its discretion in dividing the marital estate between the parties

under the circumstances presented in this case. Upon remand, we direct the

parties to cooperate fully and jointly to facilitate the preparation of a proper

QDRO.

      Order affirmed. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/28/19




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