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 Hrinkevieh (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 Hrinkevieh (husband), had already filed two appeals to
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,
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,
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,
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
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,
The Rules of Appellate Procedure do not authorize the adoption by reference of arguments introduced on prior appeal. Attempts to employ such unorthodox practices result in waiver of the claims thereby identified.
See Smathers v. Smathers,
No. 381 Philadelphia 1994 Appeal from the order entered December 15,1993
Husband’s final appeal stems from a trial court order granting counsel fees to wife in the amount of five thousand eight hundred fifty-one dollars ($5,851.00). Judge MacElree has explained the rationale for this ruling in the following manner:
Appellant Husband in essence contends that there is no factual basis for our Order awarding counsel fees to Appellee Wife. The record is filled ad nauseam with findings by the Special Master that Husband’s behavior was obdurate, vexatious and dilatory. We have reviewed the record and fully concur with the Master’s findings. We also find the objection to be highly disingenuous considering our first contact with this case two (2) years ago in which Husband’s counsel, in a chambers conference, conceded that Husband was his own worst enemy and that his dilatory actions were not defensible.
Further, the counsel fees awarded here, in light of the volume of litigation, are extremely conservative. We believe the record fully supports our conclusion that Husband should pay the portion of Wife’s counsel fees awarded. We suggest that the Superior Court consider assessing Husband counsel fees for the cost to Wife of defending any untimely appeals.
Trial Court Opinion filed February 21,1995 at 3.
Our Supreme Court has explained that an order granting counsel fees and costs is separable from and collateral to the main cause in a divorce action.
Fried v. Fried,
As a final matter, we note that the trial court has requested us to assess counsel fees and costs against husband pursuant to Rules of Appellate Procedure 2741, 2743 and 2744, 42 Pa.C.SA. We agree with the trial court that, as to all three appeals, wife is entitled to costs pursuant to Rules 2741(2) (costs taxable against the appellant upon affirmance of the trial court’s order) and 2743(a)(1) (fees paid in the appellate court and cost of transcript). Furthermore, we agree that husband’s behavior in failing to adequately identify and brief the issues he sought to “incorporate by reference” at Appeal No. 380 Philadelphia 1994 constitutes dilatory, obdurate and vexatious conduct of the type contemplated by Rule 2744. Finally, we agree that this appeal is “frivolous” within the meaning of Pennsylvania law and therefore grant counsel fees to wife in connection with Appeal No. 380 Philadelphia 1994.
The appeal at No. 3912 Philadelphia 1994 is quashed in part (as it relates to spousal support); the order entered October 4, 1994 is affirmed in part (as it pertains to child support). The order of August 3, 1993 is affirmed. The appeal at No. 381 Philadelphia 1995 is quashed as interlocutory. We grant costs and counsel fees to appellee pursuant to Rules of Appellate Procedure 2741, 2743 and 2744. The case is remanded for further proceedings consistent with this opinion. Superior Court jurisdiction is relinquished.
Notes
. In 1989, we affirmed the trial court’s adjudication of contempt against Mr. Hrinkevich for refusing to pay accumulated arrearages on his court ordered spousal and child support obligation.
Hrinkevich v. Hrinkevich,
