Hrinkevich v. Hrinkevich

• Decision Date: 28 September 1995
• Citation: 450 Pa.Super. 405,676 A.2d 237
• Parties: Sharon HRINKEVICH v. John HRINKEVICH, Appellant. (Three Cases.)
• Court: Pennsylvania Superior Court

Page 237

676 A.2d 237

450 Pa.Super. 405

Sharon HRINKEVICH v. John HRINKEVICH, Appellant. (Three Cases.)

Superior Court of Pennsylvania.

Argued Sept. 28, 1995.

Filed April 11, 1996.

Reargument Denied June 12, 1996.

Arthur L. Jenkins, Jr., Norristown, for appellant.

Thomas H. Ramsay, Lionville, for appellee (submitted).

Before KELLY, JOHNSON and CERCONE, JJ.

CERCONE, Judge:

These are partially consolidated appeals stemming from several trial court orders which relate to ongoing divorce proceedings. We affirm in part and quash in part.

The parties to the present appeal were married in April of 1970. Sharon Hrinkevich (wife) filed a complaint in divorce which was docketed on January 7, 1985. The certified record reveals that the parties have experienced great difficulty in settling matters concerning child support, spousal support and equitable distribution. This situation has led to a multiplicity of proceedings and resulted in many interim trial court orders. Prior to entry of the orders underlying the instant appeals, John Hrinkevich (husband), had already filed two appeals to the Superior Court. ¹ Although no formal order of bifurcation was ever entered, the trial court granted the parties a divorce on August 3, 1993. The Superior Court ruled that this constituted de facto bifurcation of the case. Hrinkevich v. Hrinkevich, 436 Pa.Super. 672, 648 A.2d 1240 (No. 2795 Philadelphia 1993, filed May 31, 1994) slip opinion at 2 n. 1.

The parties have continued their ongoing disputes concerning support and equitable distribution. Husband has expressed his dissatisfaction with the trial judge's efforts at resolving these problems by filing three separate notices of appeal seeking review of various trial court orders. We shall deal with the facts and issues pertinent to each notice of appeal separately. No. 3912 Philadelphia 1994

Appeal from the order entered

October 4, 1994

Husband's initial notice of appeal stems from the following order entered by the Honorable James P. MacElree II:

AND NOW, this 4th day of October, 1994, based upon the attached Motion, it is hereby ORDERED and DIRECTED that DRO shall revise their audit on the basis of the [sic] this Court's September 13, 1985, Court Order, Master Platt's Recommendation of October 21, 1986, and J. Endy's February 17, 1987, Order in accord with a $1,200 per month child and spousal support obligation effective March 7, 1985, to June 30, 1993, (allocated as $900 for child support and $300 for spousal support) and $600 per month in child support only thereafter from July 1, 1993, to present.

Trial court order filed and docketed October 6, 1994. Husband challenges this order on the following basis:

THE COURT BELOW COMMITTED AN ERROR AT LAW AND AN ABUSE OF DISCRETION IN NOT GRANTING APPELLANT A HEARING ON THE MERITS, IN CREATING A NEW SUPPORT ORDER UNDER THE GUISE OF ORDERING A REVISION OF AN AUDIT, ERRED IN NOT GRANTING THE DEFENDANT A HEARING UPON THE DEFENSES RAISED BY THE STIPULATION AND FURTHER ERRED IN ATTEMPTING TO CREATE A NEW SUPPORT ORDER BY REVIEWING UNSUBSTANTIATED DOCUMENTATION WITHOUT A HEARING.

Appellant's brief at "i."

Before considering husband's contentions, we must first determine whether we may exercise jurisdiction over the appeal. See Fried v. Fried, 509 Pa. 89, 91-92, 501 A.2d 211, 212-13 (1985) (questions concerning appealability of an order go to the jurisdiction of the court to hear the appeal and may be raised sua sponte). The Rules of Civil Procedure applicable to support matters have recently been modified, effective March 1, 1995. These modifications are applicable to cases such as the present one which were pending on the effective date of the amendments. Calibeo v. Calibeo, 443 Pa.Super. 694, 698-700, 663 A.2d 184, 186 (1995). According to Calibeo, the net effect of these amendments is that the portion of a trial court order attributable to child support is final and immediately appealable; however, the portion of an order allocated to spousal support is interlocutory. See id. at 696-700, 663 A.2d at 185-86 (citing Rules of Civil Procedure 1910.16-1(a), 1910.16(b), 1920.31, and 1920.76).

Under Calibeo, this court has jurisdiction to consider claims related to child support, but we cannot address issues related to spousal support until a divorce decree has been entered and the certified record shows that no economic claims remain to be decided. Id. at 698-700, 663 A.2d at 186. See Pa.R.C.P. Nos. 1910.16(b) and 1920.56(b), 42 Pa.C.S.A. (an unallocated order granting both child and spousal support is final and appealable; no comparable provision permits the immediate appeal of a spousal support order). In this case, the divorce decree has been entered. However, the trial court has explicitly taken under advisement certain issues relating to equitable distribution. See Trial Court Opinion filed February 2, 1995 at 1-2. Because these economic matters remain open, this court has jurisdiction to address husband's claims as they relate to child support, but we cannot consider any issues pertaining to spousal support. Therefore, we must quash that portion of the appeal which concerns spousal support.

The parties agree that prior to the trial court's action on October 4, 1994, they had entered into a stipulation which became a court order directing the Chester County Domestic Relations Department to conduct an audit. (On page 5 of his brief, husband states that the court order was dated January 25, 1994 while on page 8 he gives the date as March 1, 1994; wife avers that the order was dated March 1, 1994.) The parties also agree that they were entitled to notice of the dates on which the audit would be conducted, and that they had the right to be present during the audit. However, husband states that he was never given notice as to when the audit would actually be performed, and thus was deprived of his right to be present. Wife responds that husband was deprived of nothing because he never requested to attend the audit.

Unfortunately, we cannot verify any of these allegations because the trial court docket lacks entries covering the time period between October 18, 1993 and July 25, 1994. Furthermore, the trial court record, as certified to this court, contains no copies of any of the documents which the parties aver were filed during this interval. It is well-settled that the Superior Court may only consider documents properly incorporated within the certified record. Gemini Equipment v. Pennsy Supply, 407 Pa.Super. 404, 412 n. 5, 595 A.2d 1211, 1215 n. 5 (1991). A defect in the certified record is not cured merely because one of the parties provides copies of missing documents via the reproduced record. Id. Paper may not be made part of the certified record simply by reproducing it. Id.

The certified record consists of the original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court. See Pa.R.A.P., Rule 1921, 42 Pa.C.S.A. (Composition of record on appeal); Frank v. Frank, 402 Pa.Super. 458, 463 n. 5, 587 A.2d 340, 342-43 n. 5 (1991). "It is the obligation of the appellant to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal." Fiore v. Oakwood Plaza Shopping Center, Inc., 401 Pa.Super. 446, 460-61, 585 A.2d 1012, 1019 (1991). "For purposes of appellate review, what is not of record does not exist." Frank v. Frank, supra.

The first entry in the certified record which deals with the audit at issue instantly is a copy of a Rule Returnable which wife filed on August 29, 1994 requesting review of the Domestic Relations Office's audit. Husband avers that he filed a request for continuance on the Rule Returnable because his attorney was ill. He also states that the trial court granted the continuance on September 19, 1994. However, these assertions are not reflected on the docket sheet, nor are they supported by any filings in the record as transmitted. Instead, the next entry in the certified record is a copy of wife's "Motion to Make Rule Absolute and Enter Order" which was filed September 26, 1994. Husband states that he responded to wife's motion by filing preliminary objections. The certified record not only lacks any documentation to support this averment, it does not even include a copy of the actual audit report. The next entry in the certified record following wife's motion, is the trial court order of October 4, 1994 which is the subject of the instant appeal.

The essence of husband's argument is that the effect of the October 4th order was to unlawfully and indirectly create a new support order while denying him the benefit of a hearing on the revisions to the audit. Husband also contends that wife's petition for review of the audit was untimely and that the trial court erred by entertaining it. Unfortunately, we are forced to conclude that there is no basis in the certified record upon which we could possibly review any of husband's contentions. We must accordingly find husband's claims waived insofar as they concern the trial court's determination on child support. We therefore affirm the October 4th order as it relates to child support, and quash that portion of husband's appeal which concerns spousal support issues.

No. 380 Philadelphia 1994

Appeal from the order entered

August 3, 1993

The challenged order at issue here is the decree of divorce. A divorce decree entered pursuant to an order for bifurcation is a final order. Curran v. Curran, 446 Pa.Super. 633, 635, 667 A.2d 1155, 1156 (1995). As previously explained, the trial court never formally granted bifurcation in this case. Nevertheless, this court has previously ruled that the entry of the divorce decree resulted in de facto bifurcation. See Hrinkevich v. Hrinkevich, (No. 2795 Philadelphia 1993, filed May 31, 1994)...