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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ESTATE OF HERMAN                  :   IN THE SUPERIOR COURT OF
 EDWARD RAWLINGS, DECEASED                          PENNSYLVANIA


 APPEAL OF: EDWARD D. RAWLINGS,           :


 EXECUTOR OF THE ESTATE OF
 HERMAN EDWARD RAWLINGS

                                          :   No. 274 WDA 2018
                  Appeal from the Order January 29, 2018
   In the Court of Common Pleas of Allegheny County Orphans' Court at
                          No(s): No. 02-15-4373
 IN RE: ESTATE OF HERMAN                  :   IN THE SUPERIOR COURT OF
 EDWARD RAWLINGS, DECEASED                          PENNSYLVANIA


 APPEAL OF: MARY BELLE RAWLINGS           :




                                          :   No. 329 WDA 2018
                  Appeal from the Order January 29, 2018
   In the Court of Common Pleas of Allegheny County Orphans' Court at
                             No(s): 02-15-4373

BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.
MEMORANDUM BY SHOGAN, J.:                               FILED JULY 22, 2019

     Edward D. Rawlings ("Executor"), the son of Herman Edward Rawlings

("Decedent") and executor of Dededent's estate, has filed an appeal in this

probate dispute with Mary Belle Rawlings ("Wife"), Decedent's wife. Wife has

filed a cross -appeal. We reverse and remand for further proceedings.

     The trial court offered the following findings of fact:
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            (1) The Decedent died on June 23, 2015. (N.T. 12/13/17, p.
      11)

             (2) The initial death certificate listed the cause of death as
      "dementia".     At the request of [Executor], a replacement
      certificate was issued changing the cause to death to "abdominal
      aortic aneurysm". (Exhibits 3 and 7) (N.T. 12/13/17, pp. 33, 46)

            (3) The Decedent and [Wife] were married for 42 years.
      Each of them had three children from previous marriages and they
      had no children together. (N.T. 12/13/17, p. 11)

           (4) When they got married, the Decedent and [Wife] agreed
      "he would stay out of my stuff and I would stay out of his stuff".
      They had one joint account (the bill paying account) into which
      they each deposited the same amount of money on the first day
      of each month. (N.T. 12/13/17, p. 16)

             (5) At the time of his death, the Decedent and [Wife] were
      residing at Longwood at Oakmont, which is a retirement
      community. (N.T. 12/13/17, p. 10)

            (6) [Wife] inherited a sum of money in 2010 when her
      Stepmother died. (N.T. 12/13/17, p. 18)

           (7) [Wife] gave the Decedent a check for $1,000,000 on or
      about February 22, 2011. (Exhibit 1) (N.T. 12/13/17, p. 19)

            (8) The check was deposited into the Decedent's PNC Bank
      Premium Money Market Account on February 22, 2011. (Exhibit
      6) (N.T. 12/13/17, p. 42)

            (9) In October, 2014, the Decedent gave each of his children
      a gift of $100,000. They had not received any large gifts prior to
      that date. (N.T. 12/13/17, p. 55)

           (10) In addition to giving the Decedent the check for
      $1,000,000, [Wife] gave the Decedent $250,000, which was
      deposited into his PNC Bank Premium Money Market Account on
      September 8, 2011. (N.T. 12/13/17, p. 57)

Trial Court Opinion, 4/11/18, at 1-2.



                                        -2
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      On July 28, 2015, Wife filed a claim against Decedent's estate for
$1,000,000.00. On July 13, 2016, Wife filed a petition to show cause seeking

the return of the $1,000,000.00 from the estate and from Decedent's children

under the Uniform Fraudulent Transfer Act. After preliminary objections were

filed, Wife filed an amended petition seeking the relief on the theory of unjust

enrichment. The three children filed an answer and new matter and a reply

to new matter was filed by Wife. Following discovery, the three children filed

a motion for summary judgment, which was denied by the trial court. A one -

day trial was held on December 13, 2017. On January 29, 2018, the trial
court filed an opinion and order directing the estate to pay Wife $300,000.00.

Executor filed a timely appeal and Wife filed a timely cross -appeal.      Both

parties and the trial court complied with Pa.R.A.P. 1925. The appeals were

consolidated sua sponte.

      Executor raises the following issues for our consideration:

      [1.] May a widow seeking payment of a claim from her deceased
      husband's estate based on an alleged oral understanding testify
      on her own behalf in violation of the Dead Man's Act (20 Pa.C.S.
      § 5930)?

      [2.] May a widow who offers testimony regarding the basis and
      legitimacy of her claim against her deceased husband satisfy her
      burden of proof by clear and convincing evidence when her own
      testimony and evidence directly contradict her claim[?]

Executor's Brief at 2.

      Wife raises the following issues for our review:

      1. Did the Trial Court err in finding the estate was to pay [Wife]
      the $300,000 when a Petition for the Return of money to the

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      estate was filed against the Decedent's three children who
      received the money?

      2. Did the Trial Court err in finding that the million dollars was
      significantly depleted at the time of Decedent's death and only
      awarding $300,000 to [Wife]?

Wife's Brief at 4 (reordered for ease of disposition).

             "Our standard of review of the findings of an orphans' court
      is deferential." In re Ware, 814 A.2d 725, 731 (Pa.Super.2002)
      (citation omitted). "When reviewing a decree entered by the
      Orphans' Court, this Court must determine whether the record is
      free from legal error and the court's factual findings are supported
      by the evidence." In re Estate of Rosser, 821 A.2d 615, 618
      (Pa.Super.2003) (citation omitted), appeal denied, 574 Pa. 761,
      831 A.2d 600 (2003). "Because the Orphans' Court sits as the
      fact -finder, it determines the credibility of the witnesses and, on
      review, we will not reverse its credibility determinations absent an
      abuse of that discretion." Ware, supra.

            As an appellate court we can modify an Orphans'
            Court decree only if the findings upon which the
            decree rests are unsupported by competent or
            adequate evidence or if there has been an error of law,
            an abuse of discretion or a capricious disbelief of
            competent evidence. The test to be applied is not
            whether we, the reviewing court, would have reached
            the same result, but whether a judicial mind, after
            considering the evidence as a whole, could reasonably
            have reached the same conclusion.

      In re Gumpher, 840 A.2d 318, 321 (Pa. Super. 2003) (citations
      omitted).

Estate of Vernum ex rel. Pratt v. Estate of Vernum ex rel. Wenmoth,
961 A.2d 181, 184 (Pa. Super. 2008).

      Executor first argues that the trial court erred in permitting Wife to offer

testimony in this matter. Executor's Brief at 17-24. Executor asserts that the



                                      -4
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Dead Man's Act' bars Wife from offering her own testimony or any evidence

of her own making to support her claim regarding the funds she transferred

to Decedent. Id at 21. Under the facts of this case, we disagree.

      "When we review a trial court ruling on admission of evidence, we must

acknowledge that decisions on admissibility are within the sound discretion of

the trial court and will not be overturned absent an abuse of discretion or
misapplication of law." Stumpf v. Nye, 950 A.2d 1032, 1035-1036 (Pa.
Super. 2007). "An abuse of discretion is not merely an error of judgment, but

if in reaching a conclusion the law is overridden or misapplied, or the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice, bias

or ill -will, as shown by the evidence or the record, discretion is abused." Id.

(quoting Geise v. Nationwide Life and Annuity Co. of America, 939 A.2d
409, 417 (Pa. Super. 2007)).

      The Dead Man's Act provides:

      [I]n any civil action or proceeding, where any party to a thing or
      contract in action is dead, ... neither any surviving or remaining
      party to such thing or contract, nor any other person whose
      interest shall be adverse to the said right of such deceased ... shall
      be a competent witness to any matter occurring before the death
      of said party.

42 Pa.C.S. § 5930.     Moreover, in Punxsutawney Mun. Airport Auth. v.
Lellock, 745 A.2d 666 (Pa. Super. 2000), this Court explained:

      The rationale behind the Dead Man's Act is that the law should not
      permit the surviving party to testify since he could lie and attempt


' 42 Pa.C.S. § 5930.
                                      -5
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      to testify favorably to himself and adversely to the deceased
      party, knowing the other party is incapable of contradicting the
      fallacious testimony. In order for a witness to be disqualified from
      testifying under this statute, [(1)] the deceased must have had
      an actual right or interest in the matter at issue, [(2)] the interest
      of the witness must be adverse, and [(3)] the right of the
      deceased must have passed to a party of record who represents
      the deceased's interests. Specifically, the application of the Dead
      Man's Rule requires that the interest of the proposed witness be
      adverse to the interest of the decedent's estate.

Id. at 670.
      The devisavit vel non exception is one of the exceptions to the Dead

Man's Act that is incorporated into the text of 42 Pa.C.S. § 5930. Pagnotti

v. Old Forge Bank, 631 A.2d 1045, 1046 (Pa. Super. 1993). Devisavit vel

non translates from Latin to "he (or she) devises or not."           Black's Law

Dictionary 517 (9th ed. 2009).

      "The devisavit vel non exception provides that 'witnesses are competent

to testify in disputes arising over the passage of property, through will or
intestacy, although their testimony might otherwise be rendered incompetent

through operation of the general rule." In re Estate of Janosky, 827 A.2d

512, 516 n.3 (Pa. Super. 2003) (quoting In re Estate of Gadiparthi, 632
A.2d 942, 946 (Pa. Cmwlth. 1993)).         "This exception applies to disputes

involving the transfer of a decedent's estate both by operation of law or by

will and renders competent all witnesses claiming decedent's property by

reason of [his] death." Id.

              In Dalbey's Estate, 326 Pa. 285, 192 A. 129 (1937), our
      supreme court stated that the devisavit vel non exception:


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            renders competent all witnesses in disputes involving
            the testamentary disposition of property regardless of
            any interest possessed by them in the particular
            decedent's property. This rule is in keeping with the
            modern tendency to admit all testimony having a
            direct bearing on issues involved, notwithstanding the
            witness' interest, which reflects only on his credibility.
            This is especially true where other evidence is at times
            unavailable, as is frequently the case in litigation of
            this character.

     "The Dead Man's Act renders the witness' testimony competent
      where the controversy over decedent's property            is   between
     parties respectively claiming such property 'by devolution on the
     death of the owner." In re Estate of McClain, 481 Pa. 435, 392
     A.2d 1371, 1375 (1978).

Pagnotti, at 1046-1047.       "[T]he party challenging the competency of a
witness[] has the burden of proving incompetency." Id. In Pagnotti, we
clarified the devisavit vel non exception to the Dead Man's Act when we
defined the term "devolution" to "include the transfer of a decedent's property

both by operation of law and by will." Id. at 1046-1047.

     The dispute in Pagnotti involved a bank account originally opened by a

mother, who subsequently added her son's name to that account.                 The

signature of both owners was required to withdraw funds from the account.

The son subsequently died intestate.       The mother attempted to withdraw
funds from the account, but the bank refused. The mother sued the bank,

alleging that the account was a joint account with a right of survivorship. The

bank interplead the decedent's estate, which argued that the account was a

tenancy in common and, by operation of law, the estate was entitled to one-

half of the proceeds. The estate then filed preliminary objections asserting

                                      -7-
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that the mother should not be able to testify because she was not a competent

witness under the Dead Man's Act. We held that both the mother and the

estate were claiming the money by devolution following the death of an owner

of the account. We affirmed the trial court's conclusion that the mother was

competent to testify under the devisavit vel non exception to the Dead Man's

Act.

       Likewise, the Commonwealth Court, our sister court, reached a similar

determination in In re Estate of Gadiparthi.2 In that case, the Dead Man's

Act issue focused on whether Dr. Gadiparthi would be competent to testify

that the real property, to which his deceased wife held legal title at the time

of her death, was in fact held in trust for him. Dr. Gadiparthi testified that he

purchased the land, held equitable title, and no gift to his wife was intended.

Dr. Gadiparthi testified that the properties were titled in his wife's name to

protect them from creditors      in   the event of a malpractice suit.       The

Commonwealth Court held that the devisavit vel non exception to the Dead

Man's Act applied and that Dr. Gadiparthi was competent to testify.

       Similarly to Pagnotti and Gadiparthi, we agree with the trial court and

Wife that her testimony was admissible under the devisavit vel non exception

to the Dead Man's Act. The instant case involves testimony from Wife that is



2   "Although decisions of the Commonwealth Court are not binding on this
Court, we may rely on them if we are persuaded by their reasoning."
NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 308 n.7 (Pa.
Super. 2012).
                                       -8
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similar to that permitted in the cases discussed above. Wife's testimony is

that she received a significant amount of money in an inheritance from a

family member and gave $1,000,000.00 to Decedent to be placed into a
mutual account dedicated for particular expenses           in   accordance with

Decedent's agreement to place the same amount into the account.               In

Dr. Gadiparthi's instance he was alleging the creation of a trust in fact.
Instantly, Wife is alleging that a constructive trust was established. The
consequence is the same in that the decedents held property in trust for
someone else and that person may testify in order to establish the nature and

character of the trust. Therefore, we conclude that the trial court properly

followed precedent as established in Pagnotti and Gadiparthi and permitted

Wife to testify. Hence, Executor's contrary claim lacks merit.

     The Executor next argues that the trial court erred in permitting Wife to

recover proceeds of the money she had given to decedent because the
testimony presented by Wife did not meet the standard of clear and convincing

evidence. Executor's Brief at 24-27. Basically, the Executor claims that Wife's

evidence actually disproved her claim. Id. at 27.

     As we stated earlier, "[t]he standard for reviewing an Orphan's Court['s]

findings is deferential." In re Estate of Warden, 2 A.3d 565, 571 (Pa. Super.

2010) (citing In re Estate of Harrison, 745 A.2d 676 (Pa. Super. 2000)).

     The findings of a judge of the orphans' court division, sitting
      without a jury, must be accorded the same weight and effect as
      the verdict of a jury, and will not be reversed by an appellate court
      in the absence of an abuse of discretion or a lack of evidentiary

                                      -9-
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      support. This rule is particularly applicable to findings of fact
      which are predicated upon the credibility of the witnesses, whom
      the judge has had the opportunity to hear and observe, and upon
      the weight given to their testimony. In reviewing the Orphans'
      Court's findings, our task is to ensure that the record is free from
      legal error and to determine if the Orphans' Court's findings are
      supported by competent and adequate evidence and are not
      predicated upon capricious disbelief of competent and credible
      evidence.

Estate of Warden, 2 A.3d at 571 (quoting In re Estate of Cherwinski, 856
A.2d 165, 167 (Pa. Super. 2004)).

      When the trial court has come to a conclusion through the exercise
      of its discretion, the party complaining on appeal has a heavy
      burden. It is not sufficient to persuade the appellate court that it
      might have reached a different conclusion if, in the first place,
      charged with the duty imposed on the court below; it is necessary
      to go further and show an abuse of the discretionary power. An
      abuse of discretion is not merely an error of judgment, but if in
      reaching a conclusion the law is overridden or misapplied, or the
      judgment exercised is manifestly unreasonable, or the result of
      partiality, prejudice, bias or ill -will, as shown by the evidence of
      record, discretion is abused. A conclusion or judgment constitutes
      an abuse of discretion if it is so lacking in support as to be clearly
      erroneous .  .   .  If the lack of evidentiary support is apparent,
                           .


      reviewing tribunals have the power to draw their own inferences
      and make their own deductions from facts and conclusions of law.
      Nevertheless, we will not lightly find reversible error and will
      reverse an orphans' court decree only if the orphans' court applied
      an incorrect rule of law or reached its decision on the basis of
      factual conclusions unsupported by the record.

Estate of Warden, 2 A.3d at 571 (quoting In re Scheidmantel, 868 A.2d
464, 479 (Pa. Super. 2005)).

      Before we address the merits of this issue, we must consider whether

Executor has waived review of this claim. Initially, we observe that Executor

has failed to specify the point in the record where the alleged inconsistent and


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contradictory evidence appears.      Executor's bald assertion regarding the

testimony offered into evidence by Wife lacks any supporting citation to the

record. Thus, Executor has ignored the fact that, as the complaining party,

he "has a heavy burden of proof." Id.

      Pennsylvania Rule of Appellate Procedure 2119 addresses arguments in

appellate briefs and corresponding references to the record and provides, in

relevant part, as follows:

      If reference is made to the pleadings, evidence, charge,
      opinion or order, or any other matter appearing in the record, the
      argument must set forth, in immediate connection
      therewith, or in a footnote thereto, a reference to the place
      in the record where the matter referred to appears ...          .




Pa.R.A.P. 2119(c) (emphases added). Similarly, when the finding of a fact is

argued, an appellant must refer to the place in the record where the evidence

is to be found. See Pa.R.A.P. 2119(d) (addressing necessity of a synopsis of

the evidence).

      It is not the role of this Court to develop an argument for a litigant or to

scour the record to find specific evidence to support an appellant's arguments.

J.J. DeLuca Co. Inc. v. Toll Naval Assocs., 56 A.3d 402, 411 (Pa. Super.

2012). Therefore, "[w]hen an allegation is unsupported [by] any citation to

the record, such that this Court is prevented from assessing this issue and

determining whether error exists, the allegation is waived for purposes of

appeal." Commonwealth v. Harris, 979 A.2d 387, 393 (Pa. Super. 2009)
(citing Pa.R.A.P. 2119(c)).
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      Here, in the argument portion of his appellate brief, Executor has offered

no citation to the notes of testimony in violation of Rule 2119(c).          Such

violation is striking in a case that asserts a challenge to the credibility of the

evidence on the basis of contradictory testimony from witnesses. Specifically,

the Executor presented the following argument, which failed to include any

citations to the record:

      Judge O'Toole credits [Wife] with credible testimony about why
      she gave her husband $1,000,000. Whether or not that testimony
      was credible, [Wife's] unsupported, oral opinion as to why she
      gave [Decedent] the money must be considered alongside the
      testimony of the other witnesses she offered who testified to a
      completely different motivation that would not necessitate
      repayment of the money.

                                     *    *   *


             [Wife's] evidence fails to even approach this qualitative
      standard of proof of his claim.

            [Wife's] evidence, even allowing for the inadmissible
      evidence of her own recollections and beliefs, was contradictory
      and incredible. It was certainly not clear, direct, precise and
      convincing, as required by law.

            [Wife] approximated the costs of care at Longwood. She
      approximated the monthly cost of aides and the number of days
      that aides provided services. Her testimony about the actual
      number of years that she and [Decedent] resided at Longwood
      was contradicted by [Executor], her own witness. Her story about
      why she wanted the money to be returned varied among the
      witnesses she presented in her own case.

Executor's Brief at 26-27.

      As illustrated above, in contradiction to Rule 2119(c), Executor has
failed to comply with the mandatory briefing requirements by neglecting to


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reference the place in the record where evidence of the facts now claimed was

presented to the trial court.   It is not our role to scour the record for the
specific evidence that could possibly support Executor's argument.             .7 ..7 .


DeLuca Co. Inc., 56 A.3d at 411. This Court has consistently held that failure
to comply with Rule 2119(c) results in the waiver of the issue on appeal.
Executor's failure to comply with Rule 2119(c) compels our conclusion that

this issue is waived.

      We next turn to the cross -appeal filed by Wife. Wife first argues that

the trial court should have directed Decedent's three children to repay funds

to the estate that were distributed to them prior to Decedent's death. Wife's

Brief at 10-11. Wife asserts that the "trial court erred in ordering the Estate

to pay [Wife] the amount the court [o]rdered. The Petition was filed against

the three children who received the money which nearly depleted the estate

in an attempt to deny [Wife] her money." Id. at 11. Wife concludes that

"[Decedent's] children received the money from [Decedent] before he died

and they should be the ones to repay the estate so [Wife's] claim can be paid."

Id. In addition, Wife notes that "the trial court has requested in its opinion
that the case be remanded to it to direct [Decedent's] children to return the

improperly distributed funds to the estate." Id.

      Specifically, the trial court addressed Wife's claim as follows:

             [Wife's] issue claims that the [trial c]ourt erred in directing
      only the estate to pay the claim to [Wife] and not granting the
      Petition requesting that the adult beneficiaries return the funds
      that were improperly distributed to them, during the Decedent's

                                      - 13 -
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      lifetime, to the estate. As this specific issue was not addressed to
      the [c]ourt at the time of the hearing, the [c]ourt was not aware
      that the funds in the estate would be insufficient to satisfy [Wife's]
      claim.   Assuming arguendo that such is true, with the [c]ourt
      having no independent knowledge of such, the case should be
      remanded on this sole issue to permit the [c]ourt to amend the
      Order to direct the adult beneficiaries to return the improperly
      distributed funds to the estate."

Trial Court Opinion, 4/11/18 at 5-6. Thus, the trial court acknowledged that

it erred in failing to address the specific request presented in Wife's petition.

      Our review of the record reflects that, on July 13, 2016, Wife filed a

"petition for rule/citation to show cause why funds should not be returned to

the estate," in which she requested that the trial court direct that the funds

that were transferred to Decedent's children be returned. Petition, 7/13/16,

at 3-4.   On July 18, 2016, the trial court entered three individual orders
directing each of Decedent's children to show cause why they should not be

required to return money to the estate, and set a status conference date on

the matter. Orders, 7/18/16. On September 30, 2016, Wife filed an amended

petition to show cause, which again requested that the trial court direct that

the funds that had been transferred to Decedent's children be returned to the

estate. Amended Petition, 9/30/16, at 3. On November 3, 2016, Decedent's

children filed an answer and new matter, and Wife filed a reply to the new

matter on November 18, 2016. On December 13, 2017, the trial court held a

hearing and issued its order on January 25, 2018. In its order the trial court

directed the estate to pay Wife $300,000.00, but neglected to address Wife's

request that Decedent's children be directed to repay the estate.

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      These facts of record indicate that the trial court, in issuing the order

currently on appeal, utterly failed to address Wife's pending petition
requesting that Decedent's children be         directed to      repay the funds.
Accordingly, because the trial court failed to make a ruling on Wife's pending

petition, we are constrained to honor the trial court's request and remand this

matter to the trial court for further proceedings on Wife's petition.

      Wife last     argues that the trial court erred      in   finding that the

$1,000,000.00 was significantly depleted at the time of Decedent's death and

awarding Wife $300,000.00. Wife's Brief at 9-10. Wife notes that the trial

judge found that the "Longwood Fund" was significantly depleted, but she

claims that "[t]here is no evidentiary support that any money was spent [by

Decedent and Wife] from the Longwood Fund." Id. at 9. Wife continues

"[t]here is nothing in the record to support the factual conclusion reached by

the trial court that the funds were significantly depleted and that only
$300,000 was left."       Id.   Moreover, Wife states that "[t]here was no
evidentiary support that any money was spent [by Decedent and Wife] from

the Longwood Fund."       Id. Likewise, Executor agrees that "[t]here is no
evidence or explanation for [the trial court's] calculation of $300,000 as a

proper measure of damages. It is simply an arbitrary number." Executor's

Brief at 30.

      The trial court addressed Wife's claim as follows:

               [Wife] claims that the [c]ourt erred in finding that the
      $1,000,000 was significantly depleted as of the Decedent's death.

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      As the testimony regarding the expenses incurred by [Wife] and
      the Decedent to reside at Longwood, along with the testimony
      regarding the deposits into the joint account was minimal, the
      [c]ourt had no choice but to assume that over the fifty-two (52)
      month period between February 2011 (when the check was given
      to the Decedent) and June 2015 (when the Decedent died) the
      funds had been greatly depleted. It was incumbent upon counsel
      to provide the [c]ourt with details as to the expenses and deposits.
      Counsel did not do so, which resulted in the [c]ourt making its
      own calculations and concluding that the remaining funds would
      be $300,000.

Trial Court Opinion, 4/11/18, at 5.

      Our review of the record reflects that the parties are correct in their

assessment of the dearth of evidence to support the specific damages found

by the trial court.     Accordingly, we are constrained to reverse the order
awarding Wife $300,000.00, and we remand for the trial court to prepare an

adjusted calculation.

      Order reversed. Case remanded for further proceedings.        Jurisdiction

relinquished.



Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 7/22/2019




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