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June 30, 1997


Appeal from the Order entered September 25, 1995 in the Court of Common Pleas of Bucks County, Family Division, at No. A06-95-62534-S-01. Before RUFE, J.

Before: Del Sole, Tamilia And Brosky, JJ. Opinion BY Del Sole, J.

The opinion of the court was delivered by: Del Sole


FILED June 30, 1997

Wife appeals from an order directing Husband to pay support in the amount of $165.00 per week. We vacate the order and remand to the trial court for further proceedings.

The parties married in 1970 and separated in July 1995 when Wife moved to South Carolina to become a full-time student at Clemson University. The parties' two grown children remain in the marital home with Husband. Wife argues that the court erred (1) in calculating the amount of support; (2) in imputing to Wife an earning capacity of $300-$350 per week; and (3) in failing to include health care coverage in the order.

We must first dispose of Husband's contention that this appeal is improperly before us. Relying on Leister v. Leister, 453 Pa. Super. 576, 684 A.2d 192 (1996) and Calibeo v. Calibeo, 443 Pa. Super. 694, 663 A.2d 184 (1995), Husband argues that his filing of a divorce complaint a month after entry of the support order and four days after the filing of the present appeal divests this court of jurisdiction to hear this appeal. We disagree. In Leister and Calibeo, the issue was whether an appeal from a spousal support order entered during the pendency of a divorce action is interlocutory. If the present order had been entered while a divorce action was pending, we would, following Leister, quash the appeal as interlocutory. However, when the present order was entered, no divorce action was pending. Anything filed after the date Wife filed her appeal can have no impact on our jurisdiction to hear this appeal. Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 207 A.2d 768 (1965) (reviewing court must consider only the facts which were of record and before the trial court on the date the decision was rendered); Kilian v. Allegheny Co. Distributors, 409 Pa. 344, 185 A.2d 517 (1962) (stipulation presented to supreme court could not be considered; facts not in record of the trial court at time of appeal cannot be considered by reviewing court). Notably, the record certified to this court contains no reference to a divorce complaint: no complaint or other pleadings appear in the record and the docket entries do not show that a complaint was filed or that any other action was taken relating to a divorce action. *fn1 As we cannot consider facts which are not on the record before us, Commonwealth v. Rini, 285 Pa. Super. 475, 427 A.2d 1385 (1981), and the record does not reveal either the filing of a divorce action or that the support order was entered during the pendency of a companion divorce action, we must review this case as a support-only matter. See Asin v. Asin, Pa. Super. , 690 A.2d 1229 (1997) (divorce action filed in Cumberland County is not a "companion" to support action in Dauphin County). The order is therefore appealable.

Appellant first contends that the trial court erred in setting an amount of support that is below the guideline figures set forth in Pa.R.Civ.P. 1910.16-2 or the figure obtained by using the formula contained in Pa.R.Civ.P. 1910.16-3. There is a rebuttable presumption that the amount of support obtained by reference to the guidelines is the correct amount of support to be awarded. Pa.R.Civ.P. 1910.16-1. That presumption is only rebutted where the trier of fact makes specific findings on the record to justify deviation from the guideline amounts. McGinnis v. McGinnis, 439 Pa. Super. 372, 654 A.2d 563 (1995). To determine the correct amount of support under the guidelines, the trial court must first determine the parties' net income or earning capacity, using the factors set forth in Pa.R.Civ.P. 1910.16-5. In the present case, the only indication of Appellant's earning capacity is the trial court's comment that Appellant's earning capacity "is in the vicinity of a net in the range of $300 to $350 per week." N.T. 9/25/95 at p. 146. The only indication of Appellee's income is one pay stub. Exhibit R-3. *fn2 Without more precise figures from the trial court, we are unable to determine whether the amount of support is correct under the guidelines. *fn3 We must therefore vacate the order and remand this case for appropriate calculations and, if the order is outside the guidelines, an appropriate explanation for the deviation.

Appellant next contends that the trial court erred in imputing an earning capacity of $300-$350 per week which is not supported by the evidence. The trial court gave no explanation for how it determined Appellant's capacity. Since we are remanding this case, we believe it would be inappropriate to attempt to dispose of this issue at this time but will await the trial court's explanation.

Finally, Appellant contends that the trial court erred in failing to order Appellee to maintain health insurance coverage for Appellant and to pay unreimbursed medical expenses. Under 23 Pa.C.S. § 4324, the court has the discretion to order an obligor to pay a designated percentage of the obligee's reasonable and necessary health care expenses. That section also provides, however, that if health care coverage is available at reasonable or no cost as a benefit of employment, the court must order the employed spouse to provide or extend that coverage to the other spouse. Id. Here, the trial court made no mention of health care expenses, either those reimbursable by Appellee's health care plan or those which are not reimbursable through that plan. Moreover, there was no evidence presented at the hearing regarding health care benefits. Therefore, on remand, the parties should be given the opportunity to present the necessary evidence to enable the court to apply 23 Pa.C.S. § 4324. *fn4

Order vacated; case remanded for further proceedings consistent with this memorandum. ...

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