J-A20019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EDWARD CAPPER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DONNA JEAN CAPPER : No. 1803 MDA 2016
Appeal from the Order Entered September 30, 2016
In the Court of Common Pleas of Columbia County
Civil Division at No(s): 1518 of 2013 DV
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 13, 2018
Appellant, Edward Capper (“Husband”), appeals from the order entered
in the Court of Common Pleas of Columbia County, finding him in contempt of
a court order. We affirm.
The relevant facts and procedural history of this case are as follows.
Husband and Appellee, Donna Jean Capper (“Wife”), were married in 2005.
Husband filed for divorce in 2013. The court appointed a special master. The
master found the parties had considerable debt, both in their capacity as
individuals and as a couple.
The couple owned two residences at the date of separation, with both
houses titled in Husband’s name. The master classified the Knob Road
residence as a premarital property of Husband’s, and the Dairy Road home as
the marital residence. The mortgage remaining on the Dairy Road residence
exceeded the home’s value. Husband sold the Knob Road property after the
J-A20019-17
parties separated, and applied the $70,000.00 garnered from the sale to the
mortgage debt on the Dairy Road home.
Nevertheless, the master found the parties’ debts far surpassed their
assets. The master also noted Husband earned a substantially greater salary,
more than three times that of Wife. The master’s recommendation to the court
made each party responsible for individual debts, and left the encumbered
Dairy Road residence to Husband. The master also advised that Husband pay
$1,400.00 per month in alimony to Wife, for one year.
The master later issued a supplement to his report; in it, he changed
his earlier classification of the Knob Road home as Husband’s premarital
property, to a marital residence. The master then proposed that Husband
account to Wife for the $70,000.00 he acquired from the sale of the Knob
Road home, as Husband had applied it to his own debt burden rather than any
shared marital debt. The master recommended Husband make a payment of
$42,000.00 to Wife within 90 days of the report.
Neither Husband nor Wife filed exceptions to the master’s report or
supplement. The master motioned for entry of final decree. The court then
entered the decree.
Several months later, Wife filed a petition for contempt due to Husband’s
failure to pay her the lump sum of $42,000.00. The court issued a rule to show
cause, held a hearing on the issue, and ultimately found Husband in contempt.
The court ordered Husband to pay Wife $42,000.00, as well as reasonable
attorney’s fees resulting from the contempt proceedings. Husband’s appeal is
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now before us.
Preliminarily, we address Husband’s attempts to shoehorn his alimony
argument into his appeal from the contempt proceedings. Husband claims his
continued overpayment of alimony proves he acted without intent to disregard
a court order. Husband’s contention is inaccurate and meritless.1 Thus, we
decline to consider it in addressing Husband’s challenge to the court’s finding
of contempt. And as for that challenge to the contempt finding, it is a claim
we cannot review.
It is the appellant’s responsibility to ensure the certified record is
complete prior to its transmission to this Court. See Weissberger v. Myers,
90 A.3d 730, 734 n. 8 (Pa. Super. 2014). “[For] purposes of appellate review,
what is not in the certified record does not exist.” Ruspi v. Glatz, 69 A.3d
680, 691 (Pa. Super. 2013) (citation omitted). Rule 1911 of the Rules of
Appellate Procedure dictates, “The appellant shall request any transcript
required … and make any necessary payment or deposit therefor[.]” Pa.R.A.P.
1911(a) (emphasis added). See also G. Ronald Darlington, et al.,
Pennsylvania Appellate Practice § 1911:1-4, Volume 20A (2017–2018 ed.).
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1 Alimony is imposed “[w]here a divorce decree has been entered[.]” 23
Pa.C.S.A. § 3701. To the extent Husband contends he made alimony
payments between the master’s initial recommendations and the court’s entry
of the divorce decree over one year later, we find that these were alimony
pendente lite payments made pursuant to a separate order. Husband’s
payments to Wife were not technically alimony until the court entered the
divorce decree—more than one year after the master first filed his
recommendations. Husband’s year of required alimony payments began on
May 20, 2016, when the divorce decree was entered.
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The court found Husband in contempt after holding a hearing on the
issue. Unfortunately, a transcript of that hearing was not included in the
certified record. The certified record shows Husband requested a transcript of
the proceeding, but there is no indication in the record that he paid for the
transcript. Husband is not proceeding in forma pauperis in this appeal.
Consequently, personnel from this Court contacted the trial court to locate the
transcript.2 The court confirmed that Husband did request the transcript, but
failed to pay the stenographer.
Husband, as the appellant, was responsible for both ordering and paying
for the transcript. See Pa.R.A.P. 1911(a). Without it, we are unable to review
his claim. Thus, we find Husband’s challenge to the trial court’s contempt order
waived. See, e.g., MacPherson v. Magee Memorial Hosp. for
Convalescence, 128 A.3d 1209, 1224 (Pa. Super. 2015) (finding argument
based on document not included in certified record waived). Accordingly,
Husband is due no relief, and we affirm the contempt order.
Order affirmed.
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2 Typically, this Court declines to undertake a search for missing documents,
as the responsibility for ensuring a complete record lies with the appellant.
See Weissberger, 90 A.3d at 734 n. 8. However, the certified record in the
instant case reflected that Husband did request the transcripts. Thus, we
believed the omission may have occurred “by error, breakdown in the
processes of the court, or accident,” which we are permitted to correct. See
Pa.R.A.P. 1926(b). Following our inquiry, we found that was not the case here.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/13/2018
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