J-A21030-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID F. CAPPONI 

Appellant

v.

LISA ANN CAPPONI

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3547 EDA 2017

Appeal from the Decree Dated September 7, 2017

In the Court of Common Pleas of Montgomery County 

Domestic Relations at No(s): 2010-14646

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

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

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

on September 7, 2017. We modify the decree.

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

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

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

$473,112.13.

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

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

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

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

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

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

filed exceptions to the report and recommendation.

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

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

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

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

court issued a decree dissolving the matrimonial bond between the parties 

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

followed.1

Husband presents one issue for our review:

Whether the [trial] court abused its discretion and deviated from 

the statute in the analyzation and distribution of marital assets 

when erroneous valuations were used and [] Wife misrepresented 

the facts?

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

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

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

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

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

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

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1

 On October 29, 2017, the trial court ordered Husband to file a concise 

statement of errors complained of on appeal (“concise statement”). See

Pa.R.A.P. 1925(b). On November 7, 2017, Husband filed his concise 

statement. On February 9, 2018, the trial court issued its Rule 1925(a) 

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

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

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

claims seriatim. 

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

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

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

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

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

reached in 2015. 

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

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

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

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

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

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

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

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

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

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

to Husband’s argument, the trial court correctly declined to construe the 
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parties’ agreement as having extinguished Wife’s right to equitable 

distribution of the equity in the marital residence.

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

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

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

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

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

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

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

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

discretion in awarding Wife 50% of the marital residence. 

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

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

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

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

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

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

asset. 

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

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

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

has explained, because an annuity is 
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deferred compensation, the portion of the retirement reserve 

attributable to the duration of the marriage is marital property. 

While increases due to interest or returns on investment in the 

value of the amount contributed during the marriage are marital 

property, contributions by the employee or employer after the 

date of separation are not marital property. 

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

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

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

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

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

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

employer’s contributions and appreciation of those contributions. Husband 

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

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

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

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

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

attempted to explain why documentary evidence was necessary because of 

Husband’s testimony. See id. 

Husband, however, only presented evidence that his employer 

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

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

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2 The statement Husband provided for the annuity’s value on September 30, 

2015 stated that his employer contributed $3,200.00 “[y]ear to [d]ate.” 

Answer to Request for Production of Documents, 4/4/16, at 321.
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the value of the annuity after the parties separated was non-marital property. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

settlement funds to finance her drug addiction supported a separate and 

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3 Any appreciation of the annuity attributable to the $3,200.00 would also be 

non-marital property; however, Husband provided no evidence showing the 

amount of appreciation attributable to the $3,200.00 contributed by his 

employer after the parties separated.
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independent reason to reduce her share of the equitable distribution. See id.

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

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

alleged expenditure of money on her drug addiction. 

Decree modified. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/18