J-S03022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TERI DIGRAZIO                                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

PASQUALE DIGRAZIO

                            Appellant                 No. 1010 EDA 2015


                 Appeal from the Order Entered March 10, 2015
             In the Court of Common Pleas of Montgomery County
                        Civil Division at No(s): 08-22925


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                FILED MARCH 03, 2016

        Pasquale DiGrazio (Husband) appeals from the order entered on March

10, 2015, in the Court of Common Pleas of Montgomery County, resolving

the issue of equitable distribution between the parties. 1 Husband now raises

four issues: (1) Whether the trial court erred in valuing two pieces of real

estate; (2) Whether the trial court abused its discretion awarding Wife 60%

of the marital assets; (3) Whether the trial court abused its discretion

awarding wife counsel fees; and (4) Whether the trial court erred concluding

the appeal should be dismissed for Husband’s failure to pay for the notes of

testimony.     As will be discussed below, we decline to dismiss this appeal,

and we affirm the order of the trial court.

____________________________________________


1
    A divorce decree was entered on April 16, 2015.
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     We quote the factual history of this matter as related by the trial court

in its Findings of Fact, which were included in the Equitable Distribution

Order of March 10, 2015. We rely upon this statement in lieu of the notes of

testimony that Husband failed to provide.

     The parties were married on April 13, 1991, and separated in
     August, 2008. Two of the parties’ three children are adults, and
     the minor child remaining will not be 18 until December, 2015.
     At time of hearing, Wife was 49 years old and Husband was 50
     years old. The minor child resides with Husband.

     At a prior support proceeding, it was determined that Husband is
     employed full time by Coventa, and earns $3,087.00 net per
     month. Wife was attributed an earning capacity of $30,000
     gross per year.     She is currently employed part-time as a
     medical assistant and is attending school to become a registered
     nurse. As a result of support proceedings, Wife pays (non-
     guideline) child support of $200 per month to Husband. No
     evidence was presented which would indicate that either party is
     incapable of maintaining reasonable employment to meet his/her
     needs, nor was any testimony was [sic] presented that either
     suffers from any physical or mental condition that would impact
     his/her earning capacity.

     The former marital residence occupied by Husband and Wife was
     located at 20 South Barry Avenue. Norristown, Pennsylvania.
     Wife, by agreement, had exclusive possession of the marital
     residence from the time the Divorce Complaint was filed until
     September, 2010, at which time Wife moved from the marital
     residence to Maryland. In 2009, several offers were made to
     purchase the property, but were turned down by Husband, in
     whose sole name both the deed and the mortgage were titled.
     Wife was unable to make monthly mortgage payments on the
     property during her period of exclusive possession, and the
     property was ultimately lost to foreclosure. At a hearing in
     September, 2009, pictures of the interior of the marital house
     were presented as evidence. These pictures revealed a house
     which appeared to be unfinished in some respects or in great


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     need of repair. It is the general recollection of the Court that
     both parties acknowledged that the pictures were representative
     of the condition of the house at time of separation. It is not
     surprising that the parties were unable to save the house from
     foreclosure by a sale that would have yielded some profit to
     them.      The marital residence had no value for equitable
     distribution purposes.

     Husband’s current residence at 26 Barry Avenue, Norristown,
     was originally owned by his grandmother, who “gifted” the house
     to Husband and his sister, by deed dated May 9, 2002. The
     appreciation on the inherited interest in 26 Barry Avenue is
     marital property. In 2003, Husband bought out his sister’s half
     interest for $60,000 (half the 2002 appraised value), obtaining a
     mortgage for $75,000. The current fair market value of 26
     South Barry Avenue is $163,500, subject to a mortgage balance
     of $68,932.20 (as of June, 2014). The marital value of 26 Barry
     Avenue, for purposes of Equitable Distribution is calculated as
     follows:

        $    163,500.00     Fair Market Value
        $    - 11,445.00    Cost of Sale
        $    - 60,000.00    Husband’s separate property inheritance
        $    - 68,932.20    Mortgage balance

         $    23,122.80

     A property located at 34 Girard Place, Brigantine, New Jersey,
     was purchased in 1994 for $85,000 subject to a mortgage of
     $69,000 and is a marital asset although titled in Husband’s name
     alone.    A subsequent refinance for an additional $75,000
     provided funds to construct an addition on the marital residence
     at 20 Barry Avenue. The Brigantine property includes a house
     which was severely damaged by Hurricane Sandy in October of
     2012, and is uninhabitable.        Husband received insurance
     proceeds of $67,711.92 for damage to the house, $15,602.00 of
     which is still held by the mortgage company. The only credible
     documentation presented by Husband regarding repairs consists
     of $177 to disconnect gas lines and otherwise make the property
     safe.




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     Credible testimony presented by Husband indicates that he was
     informed immediately after the storm that the municipality
     would require the house to be “raised” as part of any
     reconstruction, and that insurance proceeds would not cover the
     cost of raising the house. No evidence was presented with
     respect to the cost of raising or razing the house.

     The Brigantine property was never rented to third parties but
     was maintained by Husband and Wife as a vacation home for
     them, their children and family members.         Although Wife
     indicated she was “locked out” of the house and was denied use
     thereof, she never availed herself of legal means to gain access
     and share use of this property. On-going payments of the
     mortgage and expenses on the Brigantine property were paid by
     Husband’s parents who continued also to vacation there with
     Husband and the parties’ children after separation. Husband’s
     mother currently pays $1858.17 per month for mortgage, taxes
     and insurance on Brigantine. As of separation date, the principal
     balance of the mortgage was $120,849.

     The tax assessment on the Brigantine lot appears to be based on
     this irregular lot having 5335 square feet. If the lot was less
     than 4500 square feet, a variance from the municipality would
     be needed to rebuild.

     The main marital asset of the parties is the Brigantine property.
     Wife’s appraiser valued the land only at 160,900.00 plus “as is”
     value of site improvements at $25,000 for a total value of
     $185,900.00.     The Brigantine property has an outstanding
     mortgage of approximately $134,000.00.

     Accordingly, the Court finds the Brigantine property has a
     marital value calculated as follows:

         $ 185,900.00   Appraised value for land and “as is” value…
         + 67,711.92    Insurance proceeds received by Husband
         - 13,013.00    Cost of Sale
         - 134,000.00   Approximate mortgage balance
          -    177.00   Expense from insurance proceeds

         $ 106,421.92 NET value to be distributed…


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Findings of Fact, 3/11/2015, at 2-5.

     Our standard of review for this matter is well settled and is as follows:

     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.

Morgante v. Morgante, 119 A.3d 382, 386-87 (Pa. Super. 2015) (citation

omitted).

     Before we begin with the substance of Husband’s appeal, we will

address the failure to provide this Court with the notes of testimony.       As

stated above, the trial court noted that Husband did not pay for the notes of

testimony and accordingly recommended the appeal be dismissed. See Trial

Court Opinion, 6/5/2015, at 1-2; Pa.R.A.P. 1911(d).         The trial court is

correct that it is within our discretion to dismiss the appeal for failure to




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provide our Court with the information required to conduct a meaningful

review.2

       The rules of appellate procedure are clear that it is the appellant’s duty

to provide this court with all the materials required to conduct a review.

See Commonwealth v. Williams, 715 A.2d 1101 (Pa. 1998) (Ultimate

responsibility for a complete record rests with the party raising an issue that

requires appellate court access to record materials.) Husband argues that

no demand was made for payment, so no payment was owed.                Whatever

Husband’s concerns were with the official stenographer, he has cited no rule

of appellate procedure or case law that indicates an appellant is relieved of

his or her duty to our Court to provide a complete certified record because of

a failure to receive a bill for the notes of testimony.

       Nonetheless, the trial court has provided findings of facts and

conclusions of law sufficient for us to review some of Husband’s claims.

Accordingly, while we find some of the issues raised on appeal to be waived

for failure to provide this court with sufficient information to conduct a

proper review, we will address those issues that are factually sufficient.



____________________________________________


2
  The docket reveals that on June 11, 2015 Husband requested the notes of
testimony be transcribed. The certified record does not reveal if Husband
paid for the transcription. Even so, Husband has failed to have the notes of
testimony included in the certified record, as is his responsibility.



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       In his first claim, Husband argues the trial court erred in disregarding

the evidence he presented regarding the values of the Norristown3 and

Brigantine properties.       We begin by noting his argument regarding the

Norristown property is woefully underdeveloped.           Essentially, he has

provided a cursory argument that he presented expert testimony regarding

the value of 26 Barry Avenue, but the trial court accepted the expert

valuation provided by Wife, instead. This underdeveloped argument taken in

conjunction with the failure to present our Court with the relevant notes of

testimony, leaves us unable to conduct a meaningful review. We agree with

the trial court that this issue has been waived. Further, it is not our job to

reweigh the evidence presented by the parties to the trial court. 4       See
____________________________________________


3
  Husband does not specify which of the Barry Avenue, Norristown, property
valuations he complains of. However, our review of the certified record
discloses expert valuations for 26 Barry Avenue only.
4
  Despite the fact that Husband’s argument is undeveloped, our review of
the certified record reveals certain relevant facts. The expert valuation for
26 Barry Avenue, Norristown, Pennsylvania, submitted by Husband, is self-
labeled as a “LIMITED APPRAISAL”. See Expert Appraisal, Paul C. Piantone,
6/27/2014, at 4, ¶ 9. This appraisal also finds 26 Barry Avenue comparable
to 20 Barry Avenue, the former marital home of the DiGrazio’s. 20 Barry
Avenue is the house the trial court found to be in disrepair.

We also note that while both expert appraisals directly compare 26 Barry
Avenue to three other residences, Wife’s expert appraisal additionally notes
“6 comparable properties currently offered for sale in the subject
neighborhood ranging in price from $168,000 to $209,000” as well as “23
comparable sales in the subject neighborhood within the past twelve months
ranging in sale price from $155,000 to $210,000.” See Expert Appraisal,
Dean Mazzotta, 6/24/2014, at 2. Accordingly, although we do not base our
(Footnote Continued Next Page)


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Pennsylvania Nat. Mut. Cas. Ins. Co. v. St. John, 106 A.3d 1, 17 n.12

(Pa. 2014) (“it is not the role of an appellate court to reweigh the

evidence”).

      A second aspect of this claim involves the valuation of the Brigantine

property.     Unsurprisingly, Husband’s and Wife’s expert appraisals of the

property at 34 Girard Place, Brigantine, New Jersey, are substantially

different. As noted above, the trial court found, based upon the appraisal

provided by Wife, that the Brigantine property had an “as is” value of

$185,900.00. Husband provided an expert appraisal of the same property at

$127,000.00.

      The trial court noted the importance of the lot size as to whether the

lot would require a variance to rebuild the residence, which had been

rendered uninhabitable due to flooding caused by Hurricane Sandy.             The

consideration of the lot size was the major difference between Husband’s

and Wife’s expert appraisals.          Wife’s expert determined the lot size to be

5335 square feet, based upon a rectangular shaped lot, 55’ x 97’, as well as

the property tax bill from the City of Brigantine that lists the lot size as 55’ x

97’ IRR.      Husband’s expert appraisal used the irregular dimensions to


                       _______________________
(Footnote Continued)

decision upon these, this information would support the trial court accepting
Wife’s valuation of the property at $163,000, rather than Husband’s
valuation at $120,000.



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determine the lot size as 4,417 square feet. Husband’s calculation of lot size

would render the property as legal non-conforming, meaning a variance is

required to rebuild.     This, in turn, apparently lessens the value of the

property.   However, Wife’s expert reviewed Husband’s submitted appraisal

and submitted a rebuttal report explaining the differences between the two

appraisals, including the difference in lot size, and why Wife’s appraisal was

valid. See Rebuttal Report, Ronald W. Silverman, 11/1/2014. Accordingly,

the trial court’s reliance upon Wife’s expert appraisal is based upon facts of

record and we find no error or abuse of discretion therein.

      Next, Husband argues that the trial court abused its discretion in

awarding Wife 60% of the marital assets.        Specifically, Husband argues

there is no income disparity between the parties, thereby rendering the

60/40 split unjust.    See Husband’s Brief, at 21.   Husband’s own evidence

disputes that assertion. Husband filed a pre-trial memorandum on August

26, 2011. That pre-trial memorandum asserted Wife’s net monthly income

to be $2,080.00 and Husband’s net monthly income to be $3,087.00. See

Pre-Trial Memorandum, 8/26/2011, at 3-4.         These figures, supplied by

Husband, demonstrate a joint net monthly income of $5,167.00. Husband’s

net monthly income represents 59.74% of the joint net monthly income of

the parties. The trial court’s 60% award of marital property to Wife virtually

mirrors the income disparity between the parties. Because the trial court’s




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determination is based upon facts of record, we find no abuse of discretion

in awarding Wife 60% of the marital assets.

       Finally, Husband argues the trial court abused its discretion awarding

Wife $5,575.00 for attorney’s fees and expenses. The record regarding this

claim is insufficient for us to conduct a meaningful review.   Therefore, we

find the issue waived.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2016




____________________________________________


5
  It appears that the trial court awarded Wife $5,575.00 for attorney fees
and costs on the basis of vexatious behavior by Husband, including what the
trial court determined to have been submitting a fraudulent lien against the
Brigantine property. Husband’s argument contra the award is couched in
terms of lack of economic disparity between the parties. See Biese v.
Biese, 979 A.2d 892 (Pa. Super. 2009). Husband’s argument does not
appear to have addressed the trial court’s reasoning.



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