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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CAROLYN T. CAMPER                          :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
                                               :
    BRADLEY S. WERNER                          :
                                               :   No. 2726 EDA 2018
                       Appellant

                 Appeal from the Order Entered August 21, 2018
                 In the Court of Common Pleas of Bucks County
                      Family Division at No(s): 2013-60988

BEFORE:      MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J.*

MEMORANDUM BY STRASSBURGER, J.:                     FILED DECEMBER 03, 2019

        Bradley S. Werner (Husband) appeals from the order entered August

21, 2018, which decreed that he and Carolyn T. Camper (Wife) are divorced

and ordered equitable distribution of the marital property.      We vacate the

order and remand for proceedings consistent with this memorandum.

        Husband and Wife were married in 2005 and separated in 2013. This

was the second marriage for Wife, age 56. Wife has two adult children from

her prior marriage. Husband is 58 years old and has had four previous

marriages. Prior to his marriage to Wife, Husband formed Werner Athletic

Management, LLC (WAM) and Pennsbury Racquet and Athletic Club, LLC



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*   Retired Senior Judge assigned to the Superior Court.
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(PRAC) in anticipation of purchasing a pre-existing tennis club, Pennsbury

Racquet Club (tennis club). Husband, through PRAC, purchased the tennis

club approximately 16 months prior to marrying Wife.1

         Wife filed a complaint in divorce on June 19, 2013,2 seeking equitable

distribution of the parties’ marital assets, alimony, alimony pendente lite

(APL), counsel fees, costs, and expenses. On August 1, 2014, an interim order

of court (interim support order) was entered directing Husband to pay Wife

$5,000 per month in APL.3 Order, 8/1/2014. In addition to directing Husband

to pay Wife APL, the interim support order also set forth Husband’s and Wife’s

individual obligations with respect to three jointly-owned properties.4 Id.

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1 While still married to her first husband, Wife contributed $110,000 towards
the acquisition of PRAC and WAM. In exchange, Wife acquired a 3.57%
ownership stake in PRAC. Later, Husband gifted Wife a 1% ownership share
in WAM.

2 The parties stipulated that, for equitable distribution purposes, June 19,
2013, was also the date of separation.

3   The interim support order was later terminated.

4 By way of further background, Husband and Wife jointly owned and resided
together in the marital residence (Yardley Road property) during their
marriage. Additionally, the parties jointly owned a rental property (Blough
Court property) and a vacation home (Beach Avenue property). Following the
parties’ separation, Wife remained in the Yardley Road property and paid all
real estate carrying costs prior to its sale. Husband resided in the Blough
Court property with his mother and sister from the date of separation through
November 2014, when Husband decided to reside elsewhere. His mother and
sister remained in the home until it sold in 2018. In addition to paying the
carrying costs for that property, Husband was also directed to pay all costs for
the Beach Avenue property. With respect to this property, the interim support



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       On March 22, 2017, a master’s hearing was held before Roger E. Cullen,

Esquire (the Master), to address the issues of equitable distribution, alimony,

and counsel fees. At the conclusion of the hearing, the Master entered a

master’s report recommending, inter alia, that the marital estate be

distributed 60% to Wife and 40% to Husband.5            Report of the Master,

3/22/2017, at 7 (unnumbered). Pertinent to this appeal, the Master made

recommendations regarding the proposed distribution of several assets,

including: (1) the increase in value of PRAC and WAM during the parties’

marriage; (2) Wife’s irrevocable trust, gifted to her by her mother during the

parties’ marriage (the Trust);6 (3) a Merrill Lynch investment account titled in

the names of both Husband and Wife as joint tenants with a right of

survivorship (Merrill Lynch account); and (4) the proceeds from the sale of

the parties’ three properties. Id. at 3-7.



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order preserved Husband’s “right to claim any credits he may have at the time
of equitable distribution.” Interim Support Order, 8/1/2014. Following the sale
of all three properties, the proceeds were held in escrow pending equitable
distribution.

5 The Master also recommended that Wife’s claims for alimony and counsel
fees be denied. Report of the Master, 3/22/2017, at 7 (unnumbered).

6 Wife’s mother established the Trust for Wife on December 21, 2012 by
depositing $10.00 into the Trust. That same day, Wife’s mother made a
second deposit, this time in the amount of $700,000. According to Wife’s
inventory, as of the date of separation, the value of the Trust was $800,000.
Wife’s Inventory, 5/3/2016, at 5 (unnumbered).



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       Husband timely filed a motion for a hearing de novo, asserting that he

took “exceptions to the recommendation of” the Master. Motion for a Hearing

De Novo, 5/5/2017.        Thereafter, the trial court presided over an equitable

distribution hearing, which spanned three days.               Upon the conclusion of

testimony and the submission of proposed findings of fact and conclusions of

law by the parties, the trial court issued an order, in which it concluded that

“an equal split of the marital estate is appropriate.”               Order and Decree,

8/21/2018.7 In relevant part, the trial court determined that the increase in

value of PRAC and WAM during the marital coverture, which constituted

marital property, was $2,300,000. Id.              Additionally, the court found that

“Husband’s     personal     use    of   and/or      mismanagement       of    PRAC/WAM

[p]rofits/[a]ssets”    post-separation         totaled   $400,000,    which   the   court

determined was subject to equitable distribution. Id. Neither the increase in

value of the Trust nor the Merrill Lynch account was listed as a marital asset

to be distributed.      Additionally, neither party received any credits for the

carrying costs the parties’ were directed to pay on their three jointly-owned

properties.

       Husband timely filed a notice of appeal, and both Husband and the trial

court complied with Pa.R.A.P. 1925. On appeal, Husband presents the




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7 Simultaneous to the issuance of the equitable distribution order, the trial
court entered a decree in divorce.

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following issues for our consideration, which we have reordered for ease of

disposition.

      I.       Whether the [trial] court erred by utilizing the date of
               acquisition and/or the value as of the date of acquisition of
               the tennis club by [PRAC] in valuing the increase in value of
               this non-marital asset[.]

      II.      Whether the [trial] court erred by determining that the
               [marital] asset portion [of PRAC and WAC was] valued at
               $2,300,00.00[.]

      III.     Whether the [trial] court erred by determining that
               Husband’s personal usage and/or mismanagement of [PRAC
               and WAC] profits/assets in the amount of $400,000[]
               constituted marital assets/marital portion of the assets
               subject to equitable distribution[.]

      IV.      Whether the [trial] court erred by failing to consider the
               increase in value of [the Trust] through the date of
               separation as a marital asset subject to equitable
               distribution[.]

      V.       Whether the [trial] court erred by failing to consider [the]
               Merrill Lynch [account as] a marital asset subject to
               equitable distribution[.]

      VI.      Whether the [trial] court erred by failing to consider and/or
               credit Husband for the payments he made pertaining to the
               jointly owned [Beach Avenue] property[.]


Husband’s Brief at 6-7 (trial court answers and unnecessary capitalization

omitted). At the outset, we note our standard of review.

             It is well established that absent an abuse of discretion on
      the part of the trial court, we will not reverse an award of equitable
      distribution. [In addition,] when reviewing the record of the
      proceedings, we are guided by the fact that trial courts have broad
      equitable powers to effectuate [economic] justice and we will find
      an abuse of discretion only if the trial court misapplied the laws or
      failed to follow proper legal procedures. [Further,] the finder of

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        fact is free to believe all, part, or none of the evidence and the
        Superior Court will not disturb the credibility determinations of the
        court below.

Lee v. Lee, 978 A.2d 380, 382-83 (Pa. Super. 2009) (quoting Anzalone v.

Anzalone, 835 A.2d 773, 780 (Pa. Super. 2003)). Moreover,

        [w]e do not evaluate the propriety of the distribution order upon
        our agreement with the court[’s] actions nor do we find a basis for
        reversal in the court’s application of a single factor. Rather, we
        look at the distribution as a whole, in light of the court’s overall
        application of the [23 Pa.C.S. § 3502(a)] factors [for consideration
        in awarding equitable distribution]. If we fail to find an abuse of
        discretion, the [o]rder must stand. The trial court has the
        authority to divide the award as the equities presented in the
        particular case may require.

Childress v. Bogosian, 12 A.3d 448, 462 (Pa. Super. 2011) (internal

citations and quotations omitted).

   I.      PRAC and WAM

        With respect to PRAC and WAM, Husband contends the trial court: (1)

incorrectly utilized the date of acquisition as opposed to the date of the parties’

marriage to determine the marital portion of these assets; (2) failed to

consider the tax implications and costs associated with the sale, transfer, or

liquidation of PRAC and WAM when formulating its valuation; and (3) erred in

determining that Husband’s alleged mismanagement and personal usage of

the PRAC and WAM assets and profits entitled Wife to an additional $200,000.

Husband’s Brief at 14-37.

         We address first Husband’s complaint that the trial court utilized the

incorrect start date to determine the marital portion of PRAC and WAM.


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Husband’s Brief 23-27. We note, however, that Husband did not raise this

issue in his concise statement.    See Concise Statement, 10/10/2018. It is

well-settled that “[i]ssues not included in a [concise] statement or fairly

suggested by the issue(s) stated are deemed waived.” B.G. Balmer & Co.

v. Frank Crystal & Co., Inc., 148 A.3d 454, 467 (Pa. Super. 2016).

      Issue preservation is foundational to proper appellate review. Our
      rules of appellate procedure mandate that “[i]ssues not raised in
      the lower court are waived and cannot be raised for the first time
      on appeal.” Pa.R.A.P. 302(a). By requiring that an issue be
      considered waived if raised for the first time on appeal, our courts
      ensure that the trial court that initially hears a dispute has had an
      opportunity to consider the issue.

In re F.C. III, 2 A.3d 1201, 1211–12 (Pa. 2010). Our review of Husband’s

concise statement reveals that he neither raised this issue nor was the issue

fairly suggested by the issues stated. Thus, this issue is waived.

      Next, we address Husband’s claim that the trial court erred by failing to

consider the tax ramifications and the expenses associated with the sale,

transfer, or liquidation of the assets in setting the value of the marital portion

of PRAC and WAM at $2,300,000.           Husband’s Brief at 14.      Specifically,

Husband contends the trial court

      attributed an equitable value of $2,300,000[] to the asset, subject
      to a 50/50 distribution, with the asset to be sold by a special
      monitor appointed by the [trial court] if Husband failed to make a
      cash payment to Wife of $1,150,000[] within [180] days of the
      date of the [o]rder. In fashioning this [o]rder, the [trial c]ourt
      wholly disregard[ed] competent and probative evidence offered
      by Husband’s expert witness, Craig Diehl, Esquire, and PRAC’s
      accountant, James Colitsas, C.P.A., setting forth and explaining
      the tax repercussions which would arise out of the sale of PRAC
      and the necessary expenses which would be incurred to achieve

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       the highest and best sale value. This failure by the [trial c]ourt to
       consider the “cost” which Husband would have to incur to access
       the cash value of his largest asset resulted in an award
       significantly more financially beneficial to Wife than Husband than
       the 50/50 division of the asset contemplated by the [c]ourt.

Id. at 14-15.

       In response, the trial court stated that it “found Wife’s testimony and

Wife’s witnesses to be more credible than Husband’s testimony and Husband’s

witness[;]” more specifically, the court found the valuation of PRAC and WAM

by Wife’s expert “was more credible than Husband’s expert[.]” Trial Court

Opinion, 11/2/2018, at 5. The trial court noted that the ultimate valuation the

court chose “fell between the valuations of both side’s experts, but fell closer

to Wife’s expert’s evaluation”8 because the trial court “found [that expert’s]

testimony was more credible.” Id. However, the trial court did not provide

any analysis of how it arrived at the $2,300,000 valuation.

             In valuing marital assets, the trial court must exercise
       discretion and rely on the estimates, inventories, records of
       purchase prices, and appraisals submitted by both parties.
       However, this Court has consistently held that, in determining the
       value of marital property, the court is free to accept all, part or


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8 Notably, while the trial court chose a valuation that fell between the
valuations of both experts, the experts did not use the same timeframe to
calculate their respective valuations. Specifically, Husband’s expert valued
PRAC and WAM as of the date of separation. Wife’s expert valued the
businesses as of December 31, 2014, approximately 18 months after the
parties’ separation. Wife’s expert explained that it used the December 31 st
date because the valuation at that time was less than the value of businesses
at the date of separation, pursuant to 23 Pa.C.S. § 3501(a.1), as set forth in
more detail infra. See N.T., 5/24/2018, at 38-40.


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      none of the evidence as to the true and correct value of the
      property.

Carney v. Carney, 167 A.3d 127, 131–32 (Pa. Super. 2017) (citations,

quotation marks, and brackets omitted). The pertinent portion of section 3502

provides the following.

      Upon the request of either party in an action for divorce or
      annulment, the court shall equitably divide, distribute or assign,
      in kind or otherwise, the marital property between the parties
      without regard to marital misconduct in such percentages and in
      such manner as the court deems just after considering all relevant
      factors. The court may consider each marital asset or group of
      assets independently and apply a different percentage to each
      marital asset or group of assets. Factors which are relevant to the
      equitable division of marital property include the following:

                                   ***
            (10.1) The Federal, State and local tax ramifications
            associated with each asset to be divided, distributed
            or assigned, which ramifications need not be
            immediate and certain.

            (10.2) The expense of sale, transfer or liquidation
            associated with a particular asset, which expense
            need not be immediate and certain.

23 Pa.C.S. §3502 (a)(10.1)-(10.2). Additionally, “this Court [has] clearly held

[] that the tax ramifications and expenses associated with the sale of a marital

asset is a relevant consideration whether a sale is likely or not.” Carney, 167

A.3d at 134.

      Here, the trial court valued the marital portion of PRAC and WAM at

$2,300,000. The court acknowledged that this valuation was not the valuation

provided to the court by either of the parties’ experts, but was closer to the

figures provided by Wife. Thus, instead of accepting the valuation offered by


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Husband’s expert, or alternatively, Wife’s expert, the trial court formulated its

own valuation.      Although the trial court is permitted to do so based upon

evidence presented, notably absent from the trial court’s determination is any

analysis of how the court arrived at a $2,300,000 valuation for PRAC and

WAM.     Furthermore, the trial court made no mention about whether it

considered the statutory factors in section 3502.

       For the foregoing reasons, we reverse the portion of the trial court’s

order valuing the marital portion of PRAC and WAM at $2,300,000.            Upon

remand, we direct the trial court to address the aforementioned tax and cost

of sale consequences and, if necessary, set forth a new valuation based on

the same. Regardless of whether the trial court accepts the valuation offered

by either expert, or again formulates its own valuation, the trial court shall set

forth reasons on the record to support the chosen valuation.

       In his third issue, Husband contends that the trial court abused its

discretion and/or committed an error of law when it found that, after the

parties had separated, Husband had mismanaged PRAC and WAM profits and

assets9 in the amount of $400,000, and that this misuse of funds was subject

to equitable distribution, entitling Wife to $200,000. Husband’s Brief at 27.


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9 Husband also argues, in the alternative, that even if Husband’s alleged
misuse of PRAC and WAM assets and profits were relevant to equitable
distribution, “there was utterly no competent evidence before the [trial c]ourt
to support any finding of malfeasance, only speculation and conjecture” from
Wife’s expert. Husband’s Brief at 34-37.

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Specifically, Husband asserts that PRAC and WAM are non-marital assets and

the understanding of the parties was that the marital portion of PRAC and

WAM was to be measured from the date of marriage through the date of

separation. Id. at 28-29. Thus, Husband argues that any dissipation of these

assets post-separation was inconsequential in determining the increase in

value that was subject to distribution. Id.

      As used in this chapter, “marital property” means all property
      acquired by either party during the marriage and the increase in
      value of any nonmarital property acquired pursuant to paragraphs
      (1) and (3) as measured and determined under subsection (a.1).

            (1) Property acquired prior to marriage[.]

                                      ***

      (a.1) Measuring and determining the increase in value of
      nonmarital property.--The increase in value of any nonmarital
      property acquired pursuant to subsection (a)(1) and (3) shall be
      measured from the date of marriage or later acquisition date to
      either the date of final separation or the date as close to the
      hearing on equitable distribution as possible, whichever date
      results in a lesser increase.

23 Pa.C.S. § 3501(a)(1) and (a.1).

      Factors which are relevant to the equitable division of marital
      property include the following:

                                      ***

       (7) The contribution or dissipation of each party in the acquisition,
      preservation, depreciation or appreciation of the marital property,
      including the contribution of a party as homemaker.

23 Pa.C.S. § 3502 (a)(7).




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       The trial court explained that it found the testimony of Wife’s expert

regarding “Husband’s personal use of and/or mismanagement of PRAC and

WAM [p]rofits and [a]ssets” to be “compelling.” Trial Court Opinion,

11/2/2018, at 5. Recounting the testimony of Wife’s expert, the trial court

stated that “after hearing all of the testimony, [the trial court] had no doubt

that Husband was mismanaging the business’s funds[.]”10 Id. at 6. Aside

from concluding as such, the trial court did not address why the

mismanagement of funds following the date of separation was subject to

division under equitable distribution.

       In her brief to this Court, Wife supports the determination of the trial

court, asserting that the evidence presented firmly established that Husband

was pilfering funds from PRAC and “[i]f those profits remained in PRAC, the

marital value of PRAC, whether valued at [the] date of separation or the date

of distribution, [pursuant to section 3501(a.1),] would have been significantly

greater.” Wife’s Brief at 10-11 (emphasis in original). Wife continues:

       As the purpose of equitable distribution is to achieve a fair and
       just division of the assets in the instant matter, the only way that
       could be accomplished was to include in PRAC/WAM’s value the
       profits Husband funneled into his own pocket tax[-]free. Those
       profits should have remained with PRAC/WAM, increasing the
       overall marital value subject to equitable distribution.


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10 The trial court noted that it “did not find the mismanagement amount to be
over $600,000.00 as asserted by Wife. Instead, after analyzing the evidence,
[the trial court] determined that at least $400,000.[] of the business funds
were used solely for Husband's personal expenses.” Id. at 6.


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Id. at 12-13.

      Additionally, both Husband and Wife cite the same statement made by

the trial court at the equitable distribution hearing to support their respective

positions; nevertheless, they each interpret the trial court’s statement

differently. Specifically, at the hearing, the trial court stated that its concern

was

      what was the value on the date of the marriage, what was the
      value as of the date of separation[.] That’s the marital portion of
      it. That’s what [the trial court] can equitably distribute. If, in fact,
      there’s a claim that [Husband] has decreased the value since then,
      [] if that impacts how we can divide things up, that may be a
      factor, but quite frankly, if he’s wasted the value, or increased the
      value after separation, that’s going to come out of him.

N.T., 8/25/2017, at 80-81.      Husband contends the trial court’s statement

reinforces that the trial court was only concerned with the valuation of the

assets over the lifetime of the marriage and therefore, Husband’s post-

separation actions were irrelevant. Husband’s Brief at 28-29. Conversely,

Wife interprets the statement as the trial court providing notice to the parties

that it would consider “Husband’s dissipation as a factor in dividing the marital

estate” and did in fact do so. Wife’s Brief at 13.

      Here, there appears to be no dispute that, at the time of the equitable

distribution hearing, the parties and the trial court were in agreement that

PRAC and WAM were non-marital assets. See N.T., 8/25/2017, at 77 (trial

court stating that “the issue … is what was the value on the date of the

marriage[ and what is] the value as of the date of separation.”); Id. at 86-87


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(Wife’s counsel clarifying Wife’s position that “the equitable distribution as to

PRAC and WAM … is that it is an increase in value argument, not that it was a

marital asset from day one.”).            Thus, the trial court was charged with

determining only the increase in value of PRAC and WAM over the lifetime of

the parties’ marriage. While the trial court was permitted, as Wife noted, to

measure the increase in valuation from the date of marriage to final separation

or a date closer to the equitable distribution hearing,11 whichever date

resulted in a lesser increase, it is clear from the record that the trial court

chose to measure the increase utilizing the date of separation.        See N.T.,

8/25/2017, at 76 (“[T]he issue [is] whether [PRAC and WAM have] increased

in value, and if so, what the increase was in value from the date of the

marriage to the date of separation[.] That’s the issue I have to decide.”); Id.

at 77 (“[T]he issue is what was the value on the date of the marriage [and]

what[ is] the value as of the date of separation.”).     Moreover, the trial court

acknowledged that while it did not accept either party’s valuation of PRAC and

WAM, the valuation chosen by the court “fell between the valuations of both

side’s experts[.]”     Trial Court Opinion, 11/2/2018, at 5.     As noted supra,

Husband’s expert valued PRAC and WAM as of the date of separation, while


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11Clearly Husband’s alleged dissipation of the marital assets post-separation
would be an appropriate factor for the trial court to consider if the court
determined that these assets should be valued utilizing a post-separation
date, i.e., a date close to the equitable distribution hearing. See 23 Pa.C.S.
§ 3502 (a.1), supra.


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Wife’s expert valued the businesses as of December 31, 2014, approximately

18 months after the parties’ separation. Thus, it appears that the trial court

determined it was more appropriate to value PRAC and WAM as of the date of

separation or close to the date of separation. Despite this, for reasons not

elucidated in the record, the trial court found Husband’s misappropriation of

assets, which everyone concedes happened post separation, in the amount of

$400,000, was subject to distribution.

         As with the previous claim, this Court’s review of this issue is made even

more challenging by the trial court’s failure to provide reasoning for its

decision on the record, in its subsequent equitable distribution order, or its

opinion to this Court.     Put simply, based on the foregoing and the lack of

analysis by the trial court, it is unclear why Husband’s post-separation actions

were pertinent to the equitable distribution scheme when the focus was on

the businesses’ growth from the date of the marriage to the date of separation.

Because we cannot find any reasonable basis as to why Husband’s post-

separation actions in relation to these non-marital assets affect the equitable

distribution of the marital portion of these businesses, we agree with Husband

that the trial court committed reversible error and therefore, we vacate the

portion of the trial court’s equitable distribution order awarding Wife

$200,000.

   II.      The Trust




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      Husband next “asserts that [the trial c]ourt’s refusal to recognize the

increase in value of [the Trust] from the date of the gift through the date of

separation as a marital asset subject to equitable distribution constituted an

error of law/abuse of discretion warranting reversal.” Husband’s Brief at 37.

In addressing this claim, the trial court stated that it

      believed that the monies included in the trust were a gift to Wife
      from her mother, and therefore did not qualify as marital assets.
      Therefore, while [the trial court] considered the $800,000[] trust
      fund in [the trial court’s] equitable distribution calculations as an
      asset solely belonging to Wife, [the trial court] did not find that it
      would be appropriate for Husband to receive half of the amount of
      the trust, as it was not marital property.

Trial Court Opinion, 11/2/2018, at 6.

      On appeal, Husband clarifies that he “never disputed that the

establishment of the Trust was a gift from Wife’s mother to Wife and thus non-

marital property; Husband’s contention to the [trial court] was that the

increase in the value of the [Trust] from [the date the trust was established,]

December 21, 2012, through [the date of separation,] June 19, 2013,

constituted marital property subject to equitable distribution.”       Husband’s

Brief at 37-38. We agree.

      In Smith v. Smith, 653 A.2d 1259 (Pa. Super. 1995), this Court

considered an analogous situation.      “During the parties’ marriage[, Smith]

received numerous gifts of stock from her father, as well as a sizable

inheritance from her mother comprised of stocks and money valued at

approximately $700,000.[]” Id. at 1265. The Smith Court concluded that

“[a]lthough these gifts and inheritance are not marital property, the increase

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in the value thereof during marriage was properly distributed as ‘marital

property’” pursuant to section 3501.12 Id.

       Similarly, in this case, during the parties’ marriage, Wife was gifted the

Trust from her Mother. Thus, while the entirety of the Trust is not marital

property, the trial court should have recognized that the increase in value of

the Trust during the marital coverture constituted marital property. However,

in its distribution order, the trial court omitted any mention of the Trust when

it listed the “marital assets (or marital portion of the assets)” subject to

distribution. See Order, 8/21/2018. Further, in its opinion to this Court, the

trial court considered only that the Trust constituted a gift and thus, was non-

marital property. Trial Court Opinion, 11/2/2018, at 6. The court did not

address the increase in value of the Trust, which, for the reasons cited supra,

should have been considered a marital asset subject to distribution. Because

it was error not to identify the marital portion of the Trust, we reverse and

remand for such a determination.

     III. Merrill Lynch Account

       Next, “Husband asserts that [the trial court’s] failure to identify an

$81,000 jointly titled investment account [(Merrill Lynch account)] as a

marital asset subject to equitable distribution constituted an error of


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12 Pursuant to 23 Pa.C.S. 3501(a), the increase in value of non-marital
“[p]roperty acquired by gift, except between spouses,” over the course of the
marital coverture is considered marital property subject to equitable
distribution.

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law/abuse of discretion warranting reversal.” Husband’s Brief at 40. By way

of further background, the Merrill Lynch account at issue was owned solely by

Wife prior to the marriage. At some point during the marriage, the account

was re-titled in the names of both Husband and Wife as joint tenants with the

right of survivorship (JTWROS). In its opinion, the trial court explained that

because “the account belonged solely to Wife prior to their marriage, and

Husband’s name was only added to the account during the marriage and prior

to the date of separation[,]” the account was not a marital asset, and thus,

Husband was entitled only “to half of the increase in the value of the

account[.]” Trial Court Opinion, 11/2/2018, at 6.

      Husband concedes that the Merrill Lynch account belonged solely to Wife

prior to the marriage.     Nonetheless, Husband asserts that re-titling the

account in both names as JTWROS constituted a gift from Wife to Husband,

effectively changing the asset from non-marital to marital. Husband’s Brief at

43-44. Additionally, Husband notes that “Wife unequivocally admitted joint

ownership with Husband of the [Merrill Lynch] account in both her [i]nventory

and her [] testimony, and there was nothing contradictory in the record before

the [trial c]ourt which could support any other factual conclusion than it was

mar[ita]l property.” Id. at 43.

            Generally, “[a]ll real or personal property acquired by either
      party during the marriage is presumed to be marital property.” 23
      Pa.C.S.A. § 3501[(b)]. The presumption of marital property is not
      affected by the name in which title is held or the form of co-
      ownership. Nevertheless, the presumption may be overcome by


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      [showing that, by a preponderance of the evidence,] the property
      fits within certain exceptions.

Mackalica v. Mackalica, 716 A.2d 653, 655 (Pa. Super. 1998) (citation

omitted).

      In this case, in her inventory, Wife listed the Merrill Lynch account as a

marital asset.    See Wife’s Inventory, 5/3/2016, at 4 (unnumbered).

Additionally, at the hearing, Wife answered in the affirmative when asked if,

at the date of separation, the parties “both owned” the account.              N.T.,

2/20/2018, at 112-13.

      Admissions … contained in pleadings, stipulations, and the like,
      are usually termed ‘judicial admissions’ and as such cannot later
      be contradicted by the party who has made them. Such pleadings
      are conclusive in the cause of action in which they are filed. Where
      there exists in the record a basis for the possibility that an
      averment is true, the trial court abuses its discretion if it ignores
      the admission.

Rizzo v. Haines, 555 A.2d 58, 69 (Pa. 1989) (citations and quotation marks

omitted). Thus, it appears the record evidence in this case concerning the

parties’ joint ownership of the Merrill Lynch account is uncontroverted.

Nonetheless, the trial court, based solely on the fact that the account belonged

to only Wife before the marriage, determined that only the increase in value

of the account during the marriage was marital property subject to equitable

distribution. This conclusion amounts to an error of law.

      We find instructive this Court’s decision in Brown v. Brown, 507 A.2d

1223 (Pa. Super. 1986), overruled on other grounds by Gilliland v. Gilliland,

751 A.2d 1169 (Pa. Super. 2000). In Brown, this Court addressed whether

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real property held individually by one spouse prior to marriage and later re-

titled in both parties’ names subsequent to the marriage becomes marital

property subject to equitable distribution.    In Brown, the special master

determined the real property at issue constituted a gift

      to the marital estate and that the entire value of the residence
      was subject to equitable distribution. The [trial] court held contra,
      ruling that the transfer of title into joint names did not constitute
      a gift to the marital estate, and therefore, [the husband] was
      entitled to share only in the property’s increase in value during
      the marriage.

Id. at 1224.

      The husband appealed.       Upon review, the Brown Court held that,

because the wife “transferred her individually held interest in property to a

tenancy by the entireties by a deed[,]” the presumption was that the wife’s

conveyance constituted a gift of the marital estate. Id. Specifically, the Court

determined that when

      property or an account is placed in the names of a husband and
      wife, a gift, and the creation of an estate by the entireties is
      presumed even though the funds used to acquire the property or
      to establish the account were exclusively those of [one spouse.]

Id. (citation and quotation marks omitted). Additionally, the Brown Court

found that the wife failed to set forth sufficient evidence to overcome the

presumption that the property was a marital asset.

      Similarly, in this case, after the parties’ marriage, the Merrill Lynch

account, once solely in Wife’s name, was re-titled in the names of both

Husband and Wife as JTWROS. Based upon our holding in Brown, re-titling


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the account in both names created a presumption that a valid gift had been

made to the marital estate, and the account was now considered a marital

asset. See also Madden v. Madden, 486 A.2d 401, 404 (Pa. Super. 1984)

(“[W]hen [the husband] cashed in [] bonds [originally acquired by the

husband as a gift from his mother] and used the proceeds to purchase new

bonds held in the joint names of [the husband and wife,] the bonds lost their

‘gift’ status and took on the status of property by the entireties.”) (emphasis

in original). Thus, the trial court erred in determining that the account could

not be considered a marital asset because the account was once listed in only

Wife’s name prior to marriage.

      However, our analysis does not end there. Wife was entitled to rebut

the presumption that a jointly-titled account was not a marital asset by

introducing evidence of the same. Upon review of the record, at the time of

the equitable distribution hearing, there appeared to be no dispute that the

Merrill Lynch account was a marital asset. Indeed, Wife confirmed the account

was jointly held in the parties’ names at the hearing, and further

acknowledged that the account was a marital asset by listing it as such on her

inventory. While Wife attempts to dispute the account’s designation as a

marital asset for the first time on appeal, she does not direct this Court to

where she did the same below. Thus, Wife has failed to meet her burden. For

the foregoing reasons, we agree with Husband that the trial court abused its




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discretion by failing to identify the Merrill Lynch account as a marital asset

subject to equitable distribution.

     IV.   Beach Avenue Property

       In his final claim, Husband argues the trial court’s “failure to equally

apportion the post-separation debt which he solely incurred paying the carry

costs on the [Beach Avenue property], was erroneous.” Husband’s Brief at

44. As set forth in more detail supra, pursuant to the August 1, 2014 interim

support order, Wife was ordered to pay the costs attendant to the Yardley

Road property, in which she resided exclusively post-separation.      In turn,

Husband received exclusive possession of the Blough Court property, and he

was required to pay the carrying costs for that property. The record reflects

that Husband briefly resided in the Blough Court property but later moved,

and instead, Husband’s mother and sister resided in the property. In addition

to the Blough Court property, the interim support order mandated that

Husband pay all carrying costs for the Beach Avenue property.13 With respect

to the Beach Avenue property, the order preserved Husband’s “right to claim

any credits he may have at the time of equitable distribution.” Order,

8/1/2014.


____________________________________________


13At the hearing, Husband testified that despite paying the costs on the Beach
Avenue property, he rarely used the property, and it was mainly Wife who
used the property. N.T., 8/25/2017, at 165. Wife asserts that while she may
have utilized the Beach Avenue property more than Husband, she did not
petition for or receive exclusive possession of the Beach Avenue property.
Wife’s Brief at 22.

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      In its opinion to this Court, the trial court found that Husband was not

entitled to a credit for payments for the Beach Avenue property, “despite

Wife’s near exclusive continued use of the [Beach Avenue] property, because

the amount was offset by Husband’s exclusive use of the [Blough Court]

property by him, his mother and his sister.” Trial Court Opinion, 11/2/2018,

at 6. Husband argues that, while the trial court “correctly recognized that

Husband had exclusive post-separation use of the [Blough Court property],

the [trial c]ourt’s analysis failed to take into consideration that Wife had

exclusive possession (and continued to reside) at the [Yardley Road property]

post-separation.” Husband’s Brief at 45-46.

      Accordingly, both Husband and Wife were provided exclusive
      possession of the home they were residing in, and were
      responsible for paying the carrying costs thereof through the
      respective sale. Any “offset” afforded [to] Husband for his
      exclusive use and payment of [the Blough Court property] was
      from Wife’s exclusive use and payment of [the Yardley Road
      property], as was contemplated

by the interim support order.    Id. at 46.   Thus, Husband asserts that his

payments towards the Beach Avenue property were not offset by any other

property and the court’s “failure to allocate to Wife a portion of the debt

incurred as a result of [the post-separation carrying costs of the Beach Avenue

property] was wholly inconsistent with its 50/50 proposed equitable

distribution plan.” Id.

      Wife responds by pointing out that, while Husband originally resided in

the Blough Court property post-separation, he eventually moved elsewhere


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and his mother and sister continued to reside there. “Husband never collected

any rent from his mother or sister, though the property clearly could easily

have been rented as it was previously rented to a third party.” Wife’s Brief at

20 (citations omitted).      Wife argues that if the Blough Court property was

rented, “the majority, if not all, of the carrying costs would have been

satisfied.” Id. at 22.

       While we agree with Wife that Husband could have sought rental income

to offset the carrying costs of the Blough Court property, he was not required

to do so.14 The interim support order provided that Wife was to pay the costs

of the Yardley Road property in exchange for her exclusive possession of that

property, and Husband was required to pay the costs of the Blough Court

property, which he exclusively possessed, and the Beach Avenue property.

In essence, Husband was saddled with the costs of two properties while Wife

was only required to pay the costs for one. The fact that Husband decided to

incur additional expenses by moving out of the Blough Court property despite

being granted exclusive possession of the property is of no moment. Instead,

we are persuaded by Husband’s argument that, contrary to the trial court’s

conclusions, the costs incurred by the parties’ attendant to Yardley Road and




____________________________________________


14Nor was any competent evidence introduced to determine what amount of
money Husband would have realized if he sought to rent the Blough Court
property.


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Blough Court properties offset each other, and the Beach Avenue property

stood independently of the others.

       Consequently, just as the trial court found a 50/50 split of the marital

assets equitable, the trial court should have treated the marital debts

similarly.15   See Anderson v. Anderson, 822 A.2d 824, 830 (Pa. Super.

2003) (“[The] husband received a disproportionately greater share of the

marital assets; therefore, to effectuate economic justice, i.e. to equally

distribute the marital assets, husband also had to assume a disproportionate

share of the marital debt to offset his disproportionate share of the marital

estate.”). Because we determine the trial court improperly offset the debt

from the Beach Avenue property with the Blough Court property with no

consideration of Wife’s exclusive possession of the Yardley Road property, we

conclude the trial court abused its discretion.

       In light of the foregoing, we reverse and remand for the trial to

reexamine the aforementioned issues in accordance with the statutes and case

law cited supra.16 Because our reversal may disturb the equitable distribution



____________________________________________


15 Notably, Husband testified that he suggested to Wife that they rent out the
Beach Avenue property “hoping that [the parties] could rent it to offset some
of the carrying costs of the house” but Wife said, “no[. Wife did not] want to
rent the house out” and “refused to sign onto that.” N.T., 8/24/2017, at 165-
166.

16The trial court, in its discretion, may make these determinations based on
the existing record, or may opt to reopen the record for further testimony.


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scheme, upon remand, we direct the trial court to make the necessary

alterations needed to effectuate economic justice and ensure a fair and just

determination.

     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/19




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