author: TAMILIA, Judge: BECK, Judge,

text:
    593 A.2d 1299
    Cynthia K. HORST v. John P. HORST, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1991.
    Filed July 3, 1991.

      Andrew B. Brown, York, for appellant.
    Gary L. Snyder, York, for appellee.
    Before OLSZEWSKI, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from the Order of the trial court which confirmed the temporary Order of a hearing officer fixing a support amount of $205 per week for two minor children, ages four and seven. The primary issue posed to the trial court and presented here on appeal is whether appellant’s contributions toward the college education of his son by a prior marriage constitutes a relevant factor which should have been considered by the hearing officer or court in determining appellant’s child support obligation to the parties’ two minor children.

According to the trial court Opinion, “[s]ubject to a preserved relevancy objection, the Defendant introduced testimony: 1) that John F. Horst, an eighteen year old, was able and willing to pursue his college courses in architectural engineering at Drexel University; 2) that Defendant personally contributed over $5,500.00 on behalf of son through either direct payments to Drexel, bi-weekly allowance checks of $100 and direct payments for sundry requirements; ____” (Slip Op., Uhler, J., 6/1/90, p. 16.) The parties dispute whether or not an agreement existed during the ten year marriage as to post-high school education for John.

Appellant maintains that pursuant to the new Statewide Guidelines promulgated by the Supreme Court, Pa.R.C.P. 1910.16-1 to 1910.16-5 (effective 9/30/89), his payment of college training for his older child is a special circumstance entitling him to a downward adjustment of the amount he is obligated to pay under the support guidelines. We agree with the trial court that the college support provided by the father for the older child is not a relevant consideration in determining support for the minor children and the guidelines may not be adjusted to reflect those payments.

This issue is not novel to the court either before or since the advent of guidelines. Simply stated, the law in Pennsylvania since Ulmer ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963), has been that a parent is not required to pay support for a child in college unless it is not an undue hardship. See Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984). A corollary to this principle is that which requires that a parent must sacrifice to support and maintain minor dependent children while he is not required to sacrifice to send his older children to college or post-high school training. Applying these time-honored fundamental principles to the present fact situation, the issue of whether or not the father paid college support or how much could not be reached or resolved until it was first determined that the needs of the minor dependent children had been met and to what extent the father could reasonably provide for them.

It is irrelevant whether the determination of child support is made by virtue of the guidelines, pursuant to the Melzer formula, Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), or by agreement of the parties. Once the appropriate amount was ascertained for support of minor children based on the father’s financial wherewithal, without considering voluntary payments for college, then if required to do so, the court could decide the amount available for college support. It is sufficient to state that the needs of the dependent children must be met, even if the father (parents) must sacrifice to do so. The guidelines are simply a means for expediting and making uniform the imposition of support Orders. The underlying law has not been altered by their promulgation.

Applying the guidelines is an acceptable means for establishing the support Order for the minor dependent children and consideration of the amount contributed by the father for college support for the older child was not an element in that consideration. College support is a separate and independent inquiry, which is not required here. The father’s claim the court failed to consider his voluntary contribution toward the education of his son at Drexel University, in making an award for support to the minor dependent children, is without merit. His desire and willingness to continue that child’s education is admirable and desirable, but it cannot diminish the father’s primary duty to provide for the dependent children before reaching into the financial pool to educate the older child.

The trial court properly rejected appéllant’s claim that his contribution to the college education of one child was relevant to the support consideration of the minor children. As discussed above, the primacy of minor child support takes precedence over college support and the basic needs of the minor dependent child may not be reduced to allow for college support when funds are inadequate for both..

Order affirmed.

Concurring opinion by BECK, J.

BECK, Judge,

concurring:

I write separately in order to elaborate on what I believe are the central and critical issues in the instant case, i.e., the proper application and interpretation of the state-wide uniform guidelines for child support awards in this Commonwealth and in particular, the principles which should govern what circumstances will justify a deviation from the guidelines. In my view, appellant raises an important issue of first impression which should be, but is not, directly addressed by the majority, i.e., whether and to what extent appellant’s contribution towards the college education of his son from a prior marriage justifies a reduction in the child support obligation to his two minor children who are the subject of the instant order. Appellant argues that his assumption of a portion of his college-aged son’s expenses constitutes a “special circumstance” upon which to base a downward adjustment of the amount he is obligated to pay under the child support guidelines. Given that the appellant has directly raised the guidelines issue and that the guidelines have been newly promulgated, I do not agree with the majority that the case is “not novel” and that the promulgation of the guidelines is “irrelevant” to the resolution of the issues presented.

Moreover, I specifically dispute the majority’s assertion in footnote 4 that child support cases which fall within the limits of the guidelines must continue to be decided in accordance with the Melzer formula of former case law. As the following discussion will explain, I conclude that where the guidelines are applicable, they and they alone determine the level of child support, absent special circumstances which might require equitable adjustment. Therefore, although I agree that the trial court correctly concluded that child support in the instant case should not deviate from guidelines levels, I cannot join in the majority’s reasoning or language.

Appellant John P. Horst (husband) and appellee Cynthia Horst (wife) were married in 1977. At the time of their marriage, appellant had a son from a previous marriage, John F. Horst, who was then six years old. John F. lived with his father and his stepmother during their ten year marriage. Apparently husband never received child support from John F.’s mother due to her impoverished financial state. Husband and wife had two additional children, Jeremy, born in 1983, and Brianna, born in 1986.

The parties separated in 1988. The two minor children continued living with wife. John F. moved with his father when his father separated from his wife. After the separation, wife began a full time job although she had not worked during the latter half of the marriage.

In June, 1989, John F. graduated from high school with impressive academic success. In the fall of 1989, John F. entered the Drexel University five year architectural engineering program. His college expenses were met through a combination of financial aid, loans, summer and school year earnings, and contributions from his father.

Wife petitioned for support for the parties’ two minor children. A domestic relations hearing officer fixed appellant’s child support obligation at $205.00 per week. This amount reflected the support guidelines amount plus an additional sum which was appellant’s share of extraordinary child care expenses. Husband appealed to the trial court. At the hearing, husband’s principal argument was that his payment of a portion of John F.’s college expenses entitled him to a reduction in child support payments owing to his two minor children.

At the hearing, wife, husband and John F. testified. Wife explained her child-related expenses, many of which were due to her full-time employment. She testified that although she and her former spouse assumed that John F. would attend college someday because he was an excellent student, no formal arrangement existed regarding how the expenses thereof would be met. Husband testified regarding the contributions he was making and anticipating towards John F.’s college expenses. He estimated that in the 1989-1990 school year, his contribution towards his son’s education and living expenses was about $5,000-$6,000. Husband testified that he was currently living with a woman whom he expected to marry and that she contributed approximately $400 monthly to the living expenses of the household. Husband also explained that John F.’s mother is unable to contribute to the support of her son through college.

Finally, John F. testified. He detailed his choice of college program, his academic achievements and his educational and career ambitions. He explained the five-year Drexel work-study program and his anticipated earnings for the forthcoming year. He confirmed that throughout his high school years he, his father and stepmother had infrequent and general conversations about his future college plans.

Having heard extensive testimony, and carefully considered the competing contentions, the trial court concluded that “[ujnder the facts presented, ... [husband’s] voluntary support of his emancipated child is not a factor to be considered in fixing a child support award for the two minor children.”

Appellant argues that the trial court’s refusal to deviate from the presumptive child support guidelines as a result of his contributions to John P.’s college education constitutes a mechanical application of the guidelines and as such represents an abuse of discretion. On the contrary, I would find that the child support guidelines have structured and limited the scope of the discretion of the trial court in child support matters. I believe that the trial court acted consistently with both the letter and the spirit of the newly-promulgated guidelines. I reach this conclusion by examining the theoretical and historical roots of the child support guidelines, their goals and their proper application.

Pennsylvania, like most other states, enacted legislation providing for statewide guidelines. Pursuant to the legislation the Pennsylvania Supreme Court promulgated child support guidelines to ensure adequate, predictable and consistent levels of support for children who are the victims of family disruption. The guidelines are Pennsylvania’s response to federal legislation. The impetus behind the nationwide legislation is well-known but bears emphasizing here. Divorce has created a national economic crisis of overwhelming scope. The crisis is particularly acute for women and children because of the number of female-headed, single-parent families. The number of such families living in poverty exceeds the national average. Moreover, the rate at which w;omen and children are descending into poverty is of such proportions that studies have predicted that, unless the present trend is slowed or reversed, nearly all Americans living in poverty in the year 2000 will be women and children in single-parent families. The impoverishment of this segment of the population represents a problem of immense dimension for the entire nation. It is estimated that one-half of the children in the United States will spend at least a portion of their childhood living in a single-parent home. While it is clear that not all of these children will be living below the poverty line, many will be. The need for federal legislation was premised on the theory that inadequate, unenforced and inequitable child support awards have contributed to the crisis of poverty which confronts single-parent families. Many custodial parents have never been awarded child support. Others have been unable to collect the awards ordered. Finally, the awards, even if paid, often have been far too low to approach even poverty-level subsistence standards, much less the true cost of reasonable child-rearing.

In addition to the inadequacy of child support awards, the inconsistency of such awards drew criticism. Often the existence or the amount of a child support order depended upon the individual and diverse attitudes of the judges before whom the cases were heard. These disparities engendered perceptions of unpredictability and unfair treatment among the parties. Finally, because courts and the parties had little guidance in setting and predicting the levels of awards, the efficiency of the court process was undermined and settlements were made more difficult.

As a partial response to these problems, Congress enacted the federal Child Support Enforcement Amendments of 1984 which required each state to adopt child support guidelines based on “specific descriptive and numeric criteria and [which would] result in a computation of the support obligation.” Subsequently, the federal Family Support Act of 1988 strengthened the previous enactment and required that state guidelines create a rebuttable presumption regarding the amount of support a parent is obligated to pay.

Pennsylvania Rule of Civil Procedure 1910.16-1 et seq. represents this Commonwealth’s compliance with federal law regarding child support guidelines. The rule creates a rebuttable presumption regarding what constitutes an appropriate level of child support based on the combined net incomes of both parties. As stated in Rule 1910.16-l(b), “[i]f it has been determined that there is an obligation to pay support, there shall be a rebuttable presumption that the amount of the award determined from the guidelines is the correct amount of child support to be awarded.” In order to deviate more than 10% from the guidelines, the trial court must make specific findings which explain why a guidelines award would be “unjust or inappropriate.” Pa. R.C.P. 1910.16-l(b). I believe that in order to properly understand what situations might legitimately warrant departures from the guidelines, it is necessary to appreciate the fundamental concepts upon which the guidelines are based and the basis on which the computations therein are made.

The child support guidelines adopted by this Commonwealth are based upon the Income Shares Model developed by the Child Support Guidelines Project of the National Center for State Courts. The income shares approach to child support guidelines has as its fundamental precept that, following a divorce, children should receive the same proportion or “share” of parental income that would have been received had the household remained intact. This concept is consistent with a recurring objective in family law which is to insulate children, wherever possible, from the negative economic impact of divorce.

The income shares approach upon which our guidelines are predicated operates as follows. The income of the two parents is determined and then combined. This figure is then used to calculate a basic child support obligation. These calculations are based on extensive economic studies which purport to analyze and establish the estimated average expenditures for children in a two-parent family living in one household. The cost of supporting children reflected in the computations has been determined by studying families of varying size and at varying income levels. The basic child support obligation then is a figure which represents the proportion of the combined parental income which parents living together in the same household ordinarily spend on their children. The formula also permits adjustment to the basic child support obligation for extraordinary expenses or needs. That amount is then divided between the parents in proportion to their respective net incomes. Where, as here, the children reside with one parent, that custodial parent’s share of the child support obligation is retained and presumed to be spent directly on the children. The non-custodial parent’s share is expressed in terms of a monthly child support award payable to the custodial parent.

At the heart of the economic principles underlying Pennsylvania’s guidelines is an income-based model and not an expense-based model. See Blaisure v. Blaisure, 395 Pa.Super. 473, 577 A.2d 640, 642 n. 1 (1990) (“new guidelines assign a percentage of income, rather than a need determination, as the basis of the award”). The expense-based model was viewed as inappropriate. First, as the comments to the guidelines observe, “[bjeeause household spending on behalf of children is intertwined with spending on behalf of adults for most expenditure categories, it is difficult to determine the proportion allocated to children in individual cases, even with exhaustive financial affidavits.” Pa.R.C.P. 1910.16-1, Explanatory Comment-1989, Part A. A large portion of household expenditures fall into categories which do not lend themselves to reliable apportionment between adults and children. Moreover, in part because there are numerous hidden costs to child-rearing, parents regularly underestimate the amounts they spend on their children. In addition, expense-based calculations of child-support unnecessarily engage judges and litigants in controversies involving subjective judgments about what constitutes a reasonable expense either for the parent or the child. Experience has shown that parties can easily control and even manipulate expenses and as a result child support determinations have often been inconsistent, arbitrary and inequitable.

The guidelines approach adopted by our Commonwealth eliminates the need to examine on a case-by-case basis the ordinary expenses of raising children. Because the guidelines grid and formula are based upon what an ordinary family spends to raise a child, ordinary expenses have already been taken into account. The quantitative computations already reflect a judgment regarding the reasonable expenses or needs of children in order to maintain minimal standards of well-being. Finally, the guidelines already include an approximation of the share of total family expenditures which should be attributed to children. Principally because of these considerations, but also for reasons of practicality, consistency and predictability, I believe that cases which fall within the income-level limits of the guidelines are to be decided by the guidelines grid or formula, and not by previous need-based case law formulas. I would conclude that the guidelines replace the Melzer formula which has as its basis the calculation of the “reasonable needs” of the child. Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). In my view, only cases which fall beyond the scope of the guidelines are appropriate for the Melzer formula.

The guidelines seek to promote predictability, uniformity, and perhaps most importantly, adequate levels of support. Although courts are permitted, and even encouraged, to deviate from the guidelines when circumstances require departures to correct an inequity, deviations must be premised on appropriate considerations. Otherwise, the fundamental purpose of the guidelines is contravened.

The commentary accompanying the guidelines recognizes this principle and emphasizes it as follows:

The guidelines make the support of a child a primary obligation. They assume that parties with similar net incomes will have similar reasonable and necessary expenses. After the basic needs of the parents have been met, the child’s needs shall receive priority. A party will not be rewarded for making unnecessary expenditures for his or her own benefit by having his or her support obligation reduced. Neither will a party be penalized for living frugally by receiving less support. In most cases, the parties’ living expenses are not relevant in determining that party’s support obligations because a support obligation is not based upon the amount of money the parties are actually spending on themselves and their children. Rather, as the statute requires, the obligation is based upon the reasonable needs of a dependent spouse or child and the reasonable ability of the obligor to pay.

Pa.R.C.P. 1910-16.1, Explanatory Comment-1989, (B)(1).

Based on the foregoing discussion, it is clear that certain basic principles should govern our inquiry. The awards calculated by the guidelines are presumptive. While the guidelines clearly do not compel rigid adherence, deviations are permitted in limited circumstances. Consistency and predictability are important twin goals of child support guidelines. These goals are defeated if deviations from the guidelines become more the rule than the exception. If the guidelines are to accomplish their desired purposes of equitable, adequate and predictable levels of support for children, the party seeking the deviation must convince the court that the guidelines amount would truly be “unjust or inappropriate”. Pa.R.C.P. 1910.16-l(b). Therefore, deviations, although anticipated in appropriate circumstances, must be accompanied by specific findings and reasons justifying the deviation. See Pa.R.C.P. 1910.16—1(b); 1910.16-4(b). I conclude, therefore, that, given the presumptive nature of the guidelines, the party contesting the guidelines amount has the burden of justifying the deviation.

In order to assess whether a party has met his or her burden justifying a deviation, certain important principles must be kept in mind. Most importantly, the guidelines dictate that support obligations to minor children are fundamental and overriding. In fact the guidelines state that “a party is expected to meet this obligation by adjusting his or her other expenditures.” Pa.R.C.P. 1910.16-5(a). Moreover, the guidelines presume that the awards calculated are necessary to meet the reasonable and basic needs of the children for whom support is owing. These computations represent amounts necessary to achieve minimal support. Therefore, downward deviations are the exception, not the rule.

The guidelines, however, are flexible and require that “special needs and obligations” must be considered in determining whether the court should deviate from the presumptive award. Rule 1910.16-5(a) provides an illustrative list of relevant factors in assessing the deviation. Thus, the rule provides that:

The hearing officer, permanent hearing officer or the court must consider all relevant factors, including the following:

(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(4) ages of the children;
(5) assets of the parties;
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their children; and
(8) other relevant and appropriate factors.

In order to prevent inequities, the trial court retains the discretion to deviate from the presumptive awards when considerations such as those illustrated above, require deviation to achieve a just award.

It is in this context that I would reach the question of whether appellant met his burden in the instant case. Initially, husband argues that the trial court did not even consider his contributions to his college-aged son. Therefore, husband seeks remand and a direction to the trial court to take his support of John F. into consideration. I do not believe the record supports his contention that the trial court failed to consider the college contribution. First, the trial court heard extensive testimony on the college support issue. The trial court made numerous findings of fact in its opinion regarding the appellant’s claim. The trial court discussed the college claim in its opinion and concluded that “under the facts presented,” appellant’s contributions to John F. should not be a factor in calculating his support obligation to the minor children. Therefore, it is clear to me that the trial court considered and rejected husband’s claim.

The instant case illustrates the difficulty of balancing the competing equities in cases wherein the parent primarily obliged to pay child support is faced with other obligations, especially those arising from multiple families. However, the policy of our law is clear—minor children are the first priority. Wherever possible, minor children of a divorced family are not to be short-changed economically as a result of family dissolution. Absent extraordinary circumstances, appellant must provide support for them proportionate to his income and in line with the presumptive guidelines amount. Any other result would frustrate the goals of the guidelines and resurrect the problematic system of preguidelines child support determinations.

I recognize that John F. is clearly deserving of a college education. His scholastic aptitude and ambition are noteworthy. Moreover, I do not minimize the importance of obtaining a college education. Modern society increasingly calls for a more sophisticated, skilled and educated populace. I realize, too, that appellant and his elder son are both attempting to obtain as much outside financial aid as they believe is available. It is plain that appellant is in the difficult position of having too many dependants and too few resources to meet all their needs.

Despite the laudatory motive and nature of appellant’s contribution to John F. and despite the son’s academic excellence, the burden of his college education cannot fall on the minor children, who are without the wherewithal to provide for their own necessities or to postpone their growing up until their older brother finishes school. The duty to provide for minor children is basic. For college students, their expenses conceivably can be met by tapping other sources of aid or undertaking more onerous loans or by obtaining school year employment. These options are not available to minor children and to their fully employed custodial parent. I note, too, that given the incomes of husband and wife which the trial court found as facts from the evidence at the hearing, the court-ordered support is already somewhat lower than the guidelines provide. I reiterate that the amounts set in the guidelines reflect the economic judgment of what constitutes minimal levels of support.

Therefore, I conclude that appellant did not meet his burden of showing that payments towards John F.’s college education required a reduction in the child support award presumed to be adequate under the guidelines. I agree with the trial court that the minor children have a paramount claim to appellant’s concededly limited resources and that his obligation to support them overrides his interest in assisting his elder son through school. There was no abuse of discretion in the trial court’s refusal to deviate from the support guidelines. My conclusion is reached by relying on the guidelines and their underlying principles. I strongly believe that the importance and meaning of the child support guidelines must clearly be construed for litigants, the bench and the bar, in order for the guidelines to achieve their intended and worthy purposes.

      . Appellant lives with his present fiance who is not involved in any of the support considerations subject of this appeal.

      . The legislative intent in 23 Pa.C.S. § 4323, Support of emancipated child, makes it clear that parental responsibility ends at the time the child is emancipated which usually occurs at age 18.

      . In no event may college support be extended beyond primary training regardless of the parents’ ability to pay. Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984).

      . Guidelines are an important tool in expediting the flow of thousands of support matters but must take into consideration other factors such as the Melzer formula and the discretion of the trial judge in their application. See Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); Marshall v. Marshall, 404 Pa.Super. 628, 591 A.2d 1060 (1991); Szillery v. Wheaton, 382 Pa.Super. 394, 555 A.2d 237 (1989); Ryan v. DeLong, 371 Pa.Super. 248, 538 A.2d 1 (1987); Lampa v. Lampa, 371 Pa.Super. 1, 537 A.2d 350 (1986).

      . He further testified that his fiancee has two minor children and that she receives child support for one of them.

        . See footnotes 10 and 11.

      . In the vast majority of divorce cases, women receive custody of the children. Various studies conclude that roughly between 80-90% of custodial parents are women. See Goldfarb, What Every Lawyer Should Know about Child Support Guidelines, 13 F.L.R. 3031 (1987) citing Bureau of the Census, U.S. Dep’t of Commerce, Household and Family Characteristics: March 1985, Current Population Reports, Series P-20, No. 411 at 11, Table G (1986); J. Wallerstein & J. Kelly, Surviving the Breakup: How Children and Parents Cope with Divorce 121 (1980); Weitzman & Dixon, Child Custody Awards: Legal Stan

        dards and Empirical Patterns for Child Custody, Support and Visitation After Divorce, 12 U.C.D.L.Rev. 473, 502-503 (1979). Thus it appears that "single-parent family” is almost always synonymous with "female-headed, single-parent family."

      . See Billings, From Guesswork to Guidelines—The Adoption of Uniform Child Support Guidelines in Utah, 4 Utah L.Rev. 859, 867 (1989), citing Bureau of the Census, U.S. Dep’t of Commerce, Money Income and Poverty Status Of Families and Persons in the United States: 1985, Series P-60, No. 154, at 4, 6 (1986).

      . National Advisory Council on Economic Opportunity, Critical Choices for the '80s 1 (1980).

      . See Goldfarb, Child Support Guidelines: A Model for Fair Allocation of Child Care, Medical, and Educational Expenses, 21 Fam.L.Q. 325, 349 (Fall 1987), citing H.R.Rep. No. 527, 98th Cong., 1st Sess. 30 (1983).

      . Of course, additional factors also add to the economic woes of single-parent families, such as the discrepancy between the earning power of women and men and the lost earning potential inherent in the custody of minor children. See, McLindon, The Economic Disaster of Divorce for Women, 21 Fam.L.Q. 351, 396 (Fall 1987), citing Fineman, Implementing Equality: Ideology, Contradiction and Social Change, Wisc.L.Rev. 789, 830 (1983).

      . One commentator noted:
      According to recently released Census Bureau statistics, the average amount of court-ordered child support due in 1985 was only $2390 per year, or $199 per month. These meager awards covered an average of 1.7 million children. Average child support orders are inadequate to raise children even at the poverty level and amount to only a quarter of the average expenditures on children in a middle-class household.
      Goldfarb, What Every Lawyer Should Know About Child Support Guidelines, supra, note 4, at 1301 (footnotes omitted); see also Williams, Guidelines for Setting Levels of Child Support Orders, 21 Fam.L.Q. 281, 283-284 (Fall 1987); Billings, From Guesswork to Guidelines—The Adoption of Uniform Child Support Guidelines in Utah, supra, note 4, at 863-869.

      . Child Support Enforcement Amendments of 1984, PL 98-378, 98 Stat. 1305 (codified at 42 U.S.C. § 667 (Supp.V.1987)).

      . Family Support Act of 1988, PL 100-485, 102 Stat. 2343, (codified at 42 U.S.C. § 651-669 (Supp.1989)).

      . See Pa.R.C.P. 1910.16-1, Explanatory Comment—1989, Introduction Part A. This approach has also been adopted by the Family Law Section of the American Bar Association. See Report to the House of Delegates on Child Support, 1986 A.B.A.Sec.Fam.L.Rep. 1. This method is not the only existing model for establishing support guidelines. In fact, a state-by-state study of the varying approaches to support computations reveals an enormous assortment of formulas and methods. See Child Support Guidelines: A Compendium—March 1990, National Center for State Courts.

      . See Pa.R.C.P. 1910.16-1, Explanatory Comment—1989, which notes that: “[The Income Shares] Model is predicated on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together.”

      . See Pharoah v. Lapes, 391 Pa.Super. 585, 592, 571 A.2d 1070, 1074 n. 6 (1990); Maurer v. Maurer, 382 Pa.Super. 468, 473-75, 555 A.2d 1294, 1297 (1989).

      . Our guidelines are based on net income figures and provide for permissible deductions in order to arrive at monthly net income. Pa.R.C.P. 1910.16-5(b).

      . For example, in the instant case the parties divided the extraordinary child care expenses and child support payments were adjusted accordingly. See Pa.R.C.P. 1910.16—5(h).

      . See Billings, supra note 4, at 890 citing L. Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America, at 272 (1985).

      . We emphasize again that the childrens’ "share" which is allocated in the guidelines is the same share of the parents’ economic resources that the children would have enjoyed if the family was intact. The childrens’ share is not based on actual or theoretical amounts spent on the children in the custodial parent’s new household.

      . In fact, some commentators have argued that the income shares method upon which our guidelines are based underestimates the true cost of child-rearing in single-parent families and that therefore the awards based on this method should be viewed as a minimum in ordinary cases. This criticism is based on several factors including: 1) the income shares model is based on studies which focus on expenditures in two-parent households and that often a single parent incurs substantial additional child-related costs; 2) the economic studies upon which the model was based underestimated the actual costs of child-rearing even in a two-parent family; and 3) the income shares model does not take into account the non-monetary, and therefore difficult to quantify, costs of child-rearing such as time, services and lost income potential. See Goldfarb, supra note 4, at 3036-3037.

      . There is no suggestion in the record that appellee has a greater earning potential than the income she is currently receiving, or that she is not working at full time capacity.

      . Husband’s income was found to be $2869.00 per month and wife’s monthly income was set at $1,264.00. Child care costs were determined to be $517.00 per month. The guidelines would obligate husband to pay $672.00 monthly plus one-half of the child care costs which would approximate $930.00 per month. The trial court ordered husband to pay $887.00 per month.


source: Caselaw Access Project

author: FORD ELLIOTT, Judge:

license: Public Domain

text:
    593 A.2d 1308
    COMMONWEALTH of Pennsylvania v. George MILLER. Appeal of COMMUNITY RESOURCES OF FAYETTE COUNTY, INC. d/b/a the Womens Resource Center of Fayette County, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1991.
    Filed July 11, 1991.

      Cynthia Cline, Uniontown, for appellant.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from an order directing appellant, Community Resources of Fayette County, Inc. d/b/a the Women’s Resource Center of Fayette County, WRC, to provide to the trial court, for an in camera proceeding, all records and information in their possession pertaining to the alleged victim of a sexual assault. As appellant filed this appeal prior to complying with the trial court order, we need to address the appealability of this matter as well as the applicability of the amended 42 Pa.C.S. § 5945.1, Confidential communications with sexual assault counselors, to the records involved herein.

George Miller, appellee, was charged with rape, statutory rape, incest, indecent assault and corruption of minors. On May 16, 1990, appellee through his counsel, the Office of the Public Defender, filed a “Motion to Direct Children and Youth Services and the Rape Counseling and Information Service to Provide Juvenile Records.” Following appellant’s answer to appellee’s motion, the trial court entered an order on June 4, 1990, directing appellant, WRC, along with Children and Youth Services to appear at a June 20,1990 in camera hearing and to bring all records and information in their possession relating to the services provided the alleged victim in this matter. WRC filed its notice of appeal to the trial court’s order on June 13, 1990. WRC appeared at the court ordered hearing on June 20, 1990, and informed the court of its appeal pending before, this court. Due to the fact that the trial court found WRC’s argument, that its appeal concerned a final collateral order, meritorious, it did not conduct an in camera review of the WRC materials. After WRC was excused from the courtroom, the trial court conducted an in camera review of the Children and Youth Services’ records.

WRC raises the following issues for our review:

1. Is the order of a Court of Common Pleas which requires a rape crisis center to divulge confidential records prepared during sexual assault counseling at an in camera hearing a final order which is subject to appeal?
2. Does a Court of Common Pleas have authority to order a rape crisis center, not a party to a criminal action, to produce documents for a defendant’s inspection absent a scheduled hearing or trial?
3. Is a Court of Common Pleas prohibited by 42 Pa. C.S.A. Section 5945.1 from ordering the production of documents relating to sexual assault counseling of a rape victim by a rape crisis center for purposes of review of those documents by the alleged rapist and his counsel prior to trial?

Initially, WRC argues and appellee agrees that this court has jurisdiction over this matter by virtue of the collateral order doctrine, which permits orders concerning matters collateral to the main controversy to be treated as final for purposes of appeal. We agree.

It is well established that an appeal lies only from a final order unless otherwise provided by statute. 42 Pa. C.S. § 742; T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). As the instant order did not end the litigation nor dispose of the entire case, it is not a final order. Commonwealth v. Wise, 328 Pa.Super. 491, 477 A.2d 552 (1984). However, interlocutory orders, can, at times, be considered final for appeal purposes if they meet certain criteria. As established by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), adopted by the Pennsylvania Supreme Court in Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975), and set forth in Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978), an order which appears to be interlocutory can be considered final and appealable if: “1) it is separate from and collateral to the main cause of action; 2) the right involved is too important to be denied review; and, 3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.” Cohen, supra, 337 U.S. at 546, 69 S.Ct. at 1226, 93 L.Ed. at 536. As we review the instant order under a Cohen analysis, we will keep in mind that Cohen allows us to look at a practical rather than technical construction of an order. Cohen, supra.

We agree with the trial court and WRC that the first two prongs of the Cohen test are satisfied in that the order involving the WRC files is separate from and collateral to the underlying criminal action. Also, the alleged victim’s right to privacy and confidentiality in her relationship with WRC is too important to be denied review. As to the third prong, WRC argues and the trial court agreed that if review is postponed until final judgment then the claimed, right of confidentiality and privacy will be lost irreparably since once the information is divulged, the privilege is lost. We agree with WRC that once the information in its files is released to anyone other than the victim, the statutorily enacted privilege is breached and the claimed right is lost forever, particularly in light of the amended 42 Pa.C.S. § 5945.1. Decidedly, this is the only point at which the alleged victim is able to vindicate her right of privacy in relation to rape crisis center records.

Additionally, we believe that if we do not address the propriety of appellee’s request for WRC files in light of the statutorily enacted privilege protecting such files, the purpose and utility of the statute, as defined by the privilege, will be undermined severely. Accordingly, we believe that the instant order is final under the collateral order doctrine; therefore, we will address WRC’s substantive issues on appeal.

WRC argues that the trial court erred when it ordered production of its documents for inspection by defense counsel at the pre-trial stage when no hearing was pending and no subpoena had been issued. The May 16, 1990 motion filed by appellee requested that the trial court order WRC to release its files pertaining to the alleged victim in the underlying criminal matter for his inspection. Shortly thereafter, the trial court entered an order setting forth a specific time, date, and place for WRC to appear as well as directing it to bring specific information concerning services it rendered to a particular client. Also, the order stated the purpose of the scheduled hearing and at whose request it was entered. We find this order to be strikingly similar to that of a court ordered subpoena. The Judicial Code in § 5905 sets out the authority of a trial court for the issuance of subpoenas:

Every court of record shall have power in any civil or criminal matter to issue subpoenas to testify, with or without a clause of duces tecum, into any county of this Commonwealth to witnesses to appear before the court or any appointive judicial officer. Subpoenas shall be in the form prescribed by general rules.

42 Pa.C.S. § 5905. With respect to criminal matters, the rules of criminal procedure set forth the contents of a subpoena.

Rule 9016. Contents of Subpoena
A subpoena in a criminal case shall order the witness named to appear before the court at the date, time, and place specified and to bring any items identified or described. The subpoena shall also state on whose behalf the witness is being ordered to testify and the identity, address, and phone number of the attorney, if any, who applied for the subpoena.

Pa.R.Crim.P. 9016. The comment to this rule reads:

Comment: This rule is derived from previous Rule 9016. The form of subpoena was deleted in 1985 because it is no longer necessary to control the specific form of subpoena by rule.
It is intended that the subpoena shall be used not only for trial but also for any other stage of the proceedings when a subpoena is issuable, including preliminary hearings, hearings in connection with pretrial and post-trial motions, etc.
When the subpoena is for the production of documents, records, or things, these should be specified.

Pa.R.Crim.P. 9016 (Comment). Finally, it is well-settled that “[t]he essence of a subpoena’s function is to aid the court in the resolution of litigation, so that if there is no formal proceeding before the court there can be no legitimate reason to issue a subpoena.” In re Gartley, 341 Pa.Super. 350, 370, 491 A.2d 851, 862 (1985) affirmed 513 Pa. 429, 521 A.2d 422 (1987) quoting Commonwealth v. Polak, 438 Pa. 67, 69, 263 A.2d 354, 356 (1970).

We believe that the contents of the trial court order entered June 4, 1990, clearly satisfies the requirements of Pa.R.Crim.P. 9016 in regard to a subpoena issued in a criminal matter. However, although the trial court may have general authority to require the disclosure of certain types of records, based on our resolution of the final issue presented, the authority of the trial court to subpeona the particular records in the instant case is questionable.

Finally, WRC contends that 42 Pa.C.S. § 5945.1, Confidential communications with sexual assault counselors, and the Pennsylvania Constitution insulates its records from any type of discovery. This court is cognizant of Commonwealth v. Wilson, 375 Pa.Super. 580, 544 A.2d 1381 (1988), alloc. granted 525 Pa. 582, 575 A.2d 113 (1990), and like cases, which hold that 42 Pa.C.S. § 5945.1 is not applicable to rape crisis center records, but only establishes a privilege as to the examination of sexual assault counselors as witnesses. However, on December 17, 1990, while this case was pending on appeal, the legislature amended 42 Pa.C.S. § 5945.1, to now shield the rape crisis center records as well by stating:

(a) Definitions.— ...
“Confidential communication.” All information, oral or written, transmitted between a victim of sexual assault and a sexual assault counselor in the course of their relationship, including, but not limited to, any advice, reports, statistical data, memoranda, working papers, records or the like, given or made during that relationship.
(b) Privilege.—
1. No sexual assault counselor may, without the written consent of the victim, disclose the victim’s confidential oral or written communications to the counselor nor consent to be examined in any court or criminal proceeding.

42 Pa.C.S. § 5945.1(a), (b)(1), as amended 1990, December 17, P.L. 737, No. 183, § 1, immediately effective. Since we recognize the legal axiom that “an intervening change in the law must be applied to cases which are in the throes of direct appeal when the change occurred,” we see no reason why the amended 42 Pa.C.S. § 5945.1 should not be applied to the instant case. Leland v. J.T. Baker Chemical Company, 282 Pa.Super. 573, 578, 423 A.2d 393, 396 (1980).

However, since the parties have not had an opportunity to argue the effect of the amended statute in the context of the present action, we need to remand this matter to the trial court. We find this procedure to be consistent with our recent holding in Commonwealth v. Smith, 402 Pa.Super. 257, 586 A.2d 957 (1991), wherein we called for the application of an amended evidentiary statute, 42 Pa.C.S. § 5985.1, on remand following our reversal of appellant’s conviction based on inadmissible evidence, which arguably would be admissible now under the amended statute. Accordingly, we vacate the trial court order as it pertains to the WRC records, and remand for argument and reconsideration of appellee’s motion in light of the amended 42 Pa.C.S. § 5945.1.

Order vacated as to WRC records and case remanded for proceedings consistent with this Opinion.

      . The Commonwealth has not filed a brief in this matter, but has written this court to express its opinion that this case should be remanded to the trial court in light of the amended 42 Pa.C.S. § 5945.1.

      . In accord Pennsylvania v. Ritchie, 480 U.S. 39, 49-50, 107 S.Ct. 989, 997-98, 94 L.Ed.2d 40, 52 (1987) (when commenting upon the Commonwealth's interest in preserving the confidentiality of DHS file material as a basis for its review, the Court stated that "statutorily created finality requirements should, if possible, be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered"). See Sanderson v. Frank S. Bryan, M.D. Ltd., 361 Pa.Super. 491, 522 A.2d 1138 (1987) (appellate review granted pursuant to 42 Pa.C.S. § 702(b) of discovery order which directed the release of confidential information in peer review files due to the importance of the issue involved and the conflicting trial court decisions on the issue); Stenger v. Lehigh Valley Hospital Center, 386 Pa.Super. 574, 563 A.2d 531 (1989) alloc. granted 525 Pa. 618, 577 A.2d 890 (1990) and 525 Pa. 620, 577 A.2d 891 (1990) (appeal granted of a discovery order which directed hospital to release allegedly confidential information concerning delivery dates of possibly contaminated blood and to disclose AIDS test results of patients who were recipients of this blood to plaintiffs in action, but denied access to identity of donor of possibly tainted blood as well as identity of other blood transfusion recipients); see also Doe v. United States, 666 F.2d 43 (4th Cir.1981) (appeal granted pursuant to collateral order doctrine from a pre-trial order establishing the admissibility of certain evidence regarding a rape victim’s past sexual behavior).

      . In Commonwealth v. Moore, 526 Pa. 152, 159, 584 A.2d 936, 940 (1991), our supreme court held that "it should be readily apparent that the general powers of courts do not include the power to order disclosure of materials that the legislature has explicitly directed to be kept confidential.”

      . Commonwealth v. Hyatt, 401 Pa.Super. 14, 584 A.2d 956 (1990); Commonwealth v. Aultman, 387 Pa.Super. 113, 563 A.2d 1210 (1989), alloc. granted 525 Pa. 575, 575 A.2d 107 (1990) and 525 Pa. 582, 575 A.2d 113 (1990); Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986), aff’d in part, vac in part 516 Pa. 300, 532 A.2d 404 (1987).


author: CERCONE, Judge:

text:
    593 A.2d 1312
    Mary Ann REESE v. Clifford Kenneth REESE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued May 16, 1991.
    Filed Aug. 8, 1991.

      Francis E. Corbett, Pittsburgh, for appellant.
    Candice L. Komar, Pittsburgh, for appellee.
    Before CAVANAUGH, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County granting appellee/wife’s motion for special relief. We affirm.

The facts of this case are summarized by the trial court as follows:

Mary Ann Reese [Wife] and Clifford K. Reese, Jr. [Husband] were married April 30, 1976 and separated December 26, 1988. After affidavits of consent were filed by both parties, equitable distribution proceeded on' a non-bifurcated basis.
After [a] hearing on June 28, 1990, this court entered a decree nisi, distributing the parties’ assets and liabilities. Wife filed a motion for post-trial relief which was scheduled for argument on October 19, 1990.
At the time of the argument, Wife presented a motion for special relief. The motion related that the parties in May, 1988 had entered into a lease for a Mercedes-Benz automobile which was driven by Husband. It further related that, as testified to at the June 28, 1990 hearing, the Mercedes had been repossessed. Further, Wife had recently been advised that there was an $11,000.00 deficiency and that the lessor, Wetzel Motor Works, would look solely to her for payment. The motion sought an order making Husband responsible for the payment.
After considering both Wife’s motion for special relief and her motion for post-trial relief, this court issued two orders. One order granted the motion for special relief, holding Husband responsible for the Mercedes deficiency; the other denied the motion for post-trial relief, although it indicated that relief would have been warranted were it not for the fact that the Mercedes debt was being imposed on husband.

Lower Court Opinion 12/21/90 at 1-2. Appellant has. presented two issues for our review:

1. whether appellee/wife’s motion for special relief was effectively a request to consider a new issue not properly raised at trial;
2. whether the failure of plaintiff/wife to raise an issue through exceptions to a decree nisi constituted a waiver of that issue.

Because both issues raised are interrelated we will treat them as one.

Pa.R.Civ.P., Rule 1920.43, 42 Pa.C.S.A. provides the proper procedure for filing a motion for special relief. The granting of appropriate special relief under Rule 1920.43 is within the sound discretion of the trial court and is an exercise of its equitable powers. Unless there is an abuse of this discretion, we will not disturb the lower court’s decision. Jawork v. Jawork, 378 Pa.Super. 89, 96, 548 A.2d 290, 293 (1988).

Appellant argues that the motion for special relief which wife filed was effectively a request to consider a new issue not properly raised at trial. Moreover, he argues that since wife failed to raise the issue in her exceptions to the decree nisi, the issue was waived. In Jawork, supra, attorney/creditor also argued that the wife had waived an issue raised after the trial court had disposed of the matter and relinquished jurisdiction. The court rejected that argument as specious. Id. 378 Pa.Superior Ct. at 94, n. 6, 548 A.2d at 292. The Jawork court held that a petition for special relief is not limited to the period when an action is pending. The rule itself (Pa.R.Civ.P. Rule 1920.43) begins at any time after the filing of the complaint. Id.

In the instant case, wife filed a motion for special relief when she was informed that Wetzel Motor Works was holding her responsible for the deficiency on the Mercedes automobile leased from Wetzel. Once the complaint was filed in this divorce action, a motion for special relief could have been filed at any time. Moreover, wife filed this motion at the earliest possible moment after learning that Wetzel expected her to be solely responsible for the deficiency. Thus, her failure to raise the deficiency issue at trial, or in post-trial motions does not waive the issue. We therefore find no abuse of discretion in the trial court’s granting of special relief.

Order affirmed.

      . As the trial judge stated in his opinion: since wife’s motion for post-trial relief had not been resolved, she alternatively could have sought leave to file a supplemental motion for post-trial relief. Lower court opinion 12/21/90 at 5, n. 1.


author: POPOVICH, Judge: DEL SOLE, Judge,

text:
    594 A.2d 307
    Frank T. SYNO, Appellee, v. Marie D. SYNO, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1990.
    Filed June 27, 1991.
    Petition for Allowance of Appeal Denied Dec. 9, 1991.

      Kimberly D. Borland, Wilkes-Barre, for appellant.
    Sandor Yelen, Wilkes-Barre, for appellee.
    Before DEL SOLE, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

In this case of first impression for our Commonwealth, we hold, inter alia, that an adjudicated incompetent may prosecute a civil action in divorce through a guardian or guardian ad litem.

Having reviewed the records and the parties’ briefs, we agree with appellant that appellee, Frank T. Syno, an adjudicated incompetent, may prosecute his civil action for divorce only by means of a guardian or guardian ad litem, and, thus, his divorce decree which was obtained without the assistance of an appointed guardian is void. Nevertheless, we are convinced that, under certain conditions, an incompetent should be permitted to file a divorce action in this Commonwealth through a guardian or guardian ad litem. Accordingly, we vacate the divorce decree and remand for appointment of a guardian ad litem and for determination of whether Mr. Syno is capable of making sound personal decisions, whether he possesses a reasonable understanding of the nature of the action for divorce and whether he desires this divorce action to be brought. Pa.R.C.P. 2056(d) (court may vacate judgment and enter an order in the nature of a procendendo).

The record reveals the following facts: On November 24, 1984, Mr. Syno filed a complaint seeking a divorce under Section 201(d) of the Divorce Code alleging that the parties had lived separate and apart for more than three years. Mrs. Syno filed an answer and new matter denying that the marriage was irretrievably broken. Mrs. Syno asserted that her husband had been adjudicated an incompetent five months prior to instituting the divorce action with the result that he was incapable of bringing such an action. Mr. Syno, in reply, asserted that he was competent and capable of bringing the divorce action. A master’s hearing followed in which Mr. Syno was allowed to testify despite Mrs. Syno’s continuing objection to his competency. Following the denial of her petitions to stay the proceedings pending the appointment of a guardian ad litem as well as to compel Mr. Syno to undergo a psychiatric evaluation, Mrs. Syno ultimately filed a § 201(d) counter-affidavit admitting that the parties had lived separate and apart, from November 25, 1984. Following a second master’s hearing on October 27, 1987. Mr. Syno filed a petition for bifurcation. The trial court declined to order bifurcation until the filing of the master’s report and recommendation. On March 17, 1988, the master recommended granting the decree. Mrs. Syno’s ensuing appeal to this Court from the denial of her exceptions was quashed as interlocutory at Syno v. Syno, 389 Pa.Super. 505, 567 A.2d 717 (1989). On February 28, 1990, the trial court issued a decree in divorce, retaining jurisdiction of the ancillary claims. The present appeal followed.

Herein, appellant, Marie Syno, raises the following questions on appeal: 1) Whether appellee, Frank Syno, is an incompetent as defined by the Pennsylvania Rules of Civil Procedure such that he may not prosecute any civil action in this Commonwealth except through a guardian or guardian ad litem; 2) Whether an incompetent may prosecute a divorce action in this Commonwealth through a guardian or guardian ad litem; 3) Whether the lower court erred in ordering bifurcation of the divorce and equitable distribution proceedings; 4) Whether the testimony of an adjudicated incompetent is admissible, competent evidence; and 5) Whether the lower court erred in denying appellant’s motion for a mental examination of appellee.

Before addressing the issues raised by appellant, we must review the facts surrounding Mr. Syno’s prior incompetency adjudication. On June 29, 1984, First Eastern Bank of Pittston was appointed the guardian of Mr. Syno’s estate, upon stipulation of counsel; the trial court specifically noted in its order that “[t]he Court has not ruled on the issue, and there has been no request for a ruling, on whether or not Frank Syno should have a guardian appointed for his person.” Order, dated 6/29/84. Mr. Syno’s psychiatric evaluation concluded that he suffers from an Amnestac Syndrome (DSM-III 294.00), a syndrome making him likely to become the victim of designing persons.

The record indicates Mr. Syno’s prior incompetency determination was limited, establishing Mr. Syno’s incompetency only with respect to management of his estate. There was not a determination of whether Mr. Syno should have a guardian appointed for his person. However, in permitting Mr. Syno to proceed without a guardian ad litem, the lower court created a kind of dichotomy among adjudicated incompetents which does not exist by law. Nowhere in the case law of the Commonwealth nor in our statutes is there authority for two distinct types of incompetents: those who are unable to manage their finances and those unable to manage their personal lives. See Pa.R.C.P. 2051; 20 Pa.C.S.A. §§ 102 and 5501. Rather, an incompetent is a person who meets either criterion. Once one has been determined to be incompetent, one is incompetent for all purposes until, by court order, the status of incompetency is lifted. 20 Pa.C.S.A. § 5517; Pa.R.C.P. 2051 (an incompetent is a person “who has been adjudicated incompetent”).

Presently, it is undisputed that at the time this action was instituted, Mr. Syno had been declared incompetent. Pa.R.C.P. 2051 is quite specific, defining an incompetent as a person “(a) who has been adjudicated incompetent ...” Thus, Mr. Syno, absent an intervening determination of competency, is an incompetent for the purposes of this action. Pa.R.C.P. 2051, 2056(e) (“A finding of incompetency shall be based either on evidence presented to the court in which the action is pending, or on an adjudication of incompetency entered by a court of competent jurisdiction.”).

Accordingly, Mr. Syno cannot maintain a divorce action, or any civil suit for that matter, in his own name, but rather must be represented by a guardian or guardian ad litem. Pa.R.C.P. 2053, 2056(a). Once the lower court was alerted to the fact that Mr. Syno was an incompetent, the court, before proceeding, should have either required his current guardian, First Eastern Bank of Pittston, to assume its duties or appointed a guardian ad litem for the divorce action. Pa.R.C.P. 2056. Since Mr. Syno was not represented by a guardian in the divorce proceedings, the divorce decree is void.

Although Mrs. Syno is correct that it was error to permit Mr. Syno to pursue this divorce action in his own name, we reject her assertion that an incompetent should not be permitted to institute a divorce action in Pennsylvania. In fact, the rules of civil procedure governing actions for divorce or annulment anticipate that an incompetent can be a plaintiff in an divorce action. Pa.R.C.P. 1920.12 states: “... the plaintiff shall set forth in the complaint as to the cause of action of divorce or for annulment (1) the names of the plaintiff and defendant and, if either party is a minor or incompetent, a statement to that effect and the name and address of such party’s guardian, if any ...” (emphasis added).

As previously stated, the question of whether a guardian ad litem may file a divorce action in this Commonwealth on behalf of his incompetent ward is a question of first impression for Pennsylvania appellate courts. However, commencement of an action for divorce by an incompetent through a guardian was approved by the Court of Common Pleas of Adams County in the case of Carver Estate, 5 D. & C.3d 743 (1977).

Research reveals that many states adhere to the view that, absent statutory authority, a guardian cannot maintain an action for dissolution of an incompetent’s marriage. 6 ALR3d 681, Power of Incompetent Spouse’s Guardian, Committee, or Next Friend to Sue for Granting or Vacating of Divorce or Annulment of Marriage, or to Make a Compromise or Settlement in such Suit, § 3[a]. See also, In re Marriage of Drews, 115 Ill.2d 201, 104 Ill.Dec. 782, 503 N.E.2d 339 (1986), cert. denied 483 U.S. 1001, 107 S.Ct. 3222, 97 L.Ed.2d 729 (1987); Phillips v. Phillips, 203 Ga. 106, 45 S.E.2d 621 (1947); In re Jennings 187 N.J.Super. 55, 453 A.2d 572 (1981); Hart v. Hart, 705 S.W.2d 332 (Tex.Ct.App. 1986); Mallory v. Mallory, 113 Misc.2d 912, 450 N.Y.S.2d 272 (1982); Cohen v. Cohen, 346 So.2d 1047 (Fla.Dist.Ct. App.1977).

However, other jurisdictions permit a guardian to institute a divorce proceeding on behalf of his incompetent ward. 6 ALR3d 681, § 3[b]. See also, In re Marriage of Higgason, 10 Cal.3d 476, 110 Cal.Rptr. 897, 516 P.2d 289 (1973); Pace v. Pace, 32 Ohio App.3d 47, 513 N.E.2d 1357 (1986); In re Marriage of Gannon, 104 Wash.2d 121, 702 P.2d 465 (1985); Smith v. Smith, 125 Mich.App. 164, 335 N.W.2d 657 (1983); Cohn v. Carlisle, 310 Mass. 126, 37 N.E.2d 260 (1941); Campbell v. Campbell, 242 Ala. 141, 5 So.2d 401 (1941).

Mindful that an incompetent may maintain a civil action in Pennsylvania only through a guardian, we find the latter view compelling, especially in light of this Commonwealth’s definition of an “incompetent” as a person who, because of infirmities, is unable to manage property or lacks the capacity to make responsible decisions concerning his person. 20 Pa.C.S.A. § 5501; Pa.R.C.P. 2051. It is certainly possible that an “incompetent” may be unable to manage his estate and, yet, be capable of making reasonable choices concerning his personal life. Thus, we should not deny per se an adjudicated “incompetent” the right to proceed with a divorce action.

Rather, an incompetent spouse should be permitted to institute a divorce proceeding through a guardian or guardian ad litem,, provided the incompetent is capable of exercising reasonable judgment as to personal decisions, understands the nature of the action and is able to express unequivocally a desire to dissolve the marriage. Cf. Marriage of Higgason, 110 Cal.Rptr. at 902-903, 516 P.2d at 294-295 (proceeding may be brought on behalf of a spouse under conservatorship through his or her guardian ad litem, provided it is established that the spouse is capable of exercising a judgment, and expressing the wish that the marriage be dissolved on account of irreconcilable differences and has done so); In re Marriage of Kutchins, 136 Ill.App.3d 45, 90 Ill.Dec. 722, 482 N.E.2d 1005 (1985), later appeal 157 Ill.App.3d 384, 110 Ill.Dec. 269, 510 N.E.2d 1300 (1987), appeal denied 117 Ill.2d 544, 115 Ill.Dec. 401, 517 N.E.2d 1087 (1987). Further, the incompetent must be found “competent” to testify and able to verify statements made in his or her complaint. Commonwealth v. Trudell, 371 Pa.Super. 353, 538 A.2d 53 (1988); In re Rhoads, 70 D. & C.2d 509 (1974).

Upon review of the record, we remand for a clearer determination of whether Mr. Syno is capable of exercising reasonable judgment and expressing his desire to obtain the divorce. We do not believe that the record adequately demonstrates that Mr. Syno meets those requirements as Mr. Syno’s testimony is insufficient to demonstrate unequivocally his ability to make reasonable decisions and his desire to obtain the divorce, especially when viewed in the light of Dr. Gene F. Harding’s letter to the court.

We turn now to Mrs. Syno’s contention that the the trial court erred in granting a decree in divorce without holding a hearing on the propriety of bifurcation and in failing to issue an opinion analyzing the rationale for bifurcation. We reject this contention under the law of the case.

The doctrine of the “law of the case” provides that where an appellate court has considered and decided a question on appeal, that court will not, in a subsequent appeal of another phase of the same case, reconsider its previous ruling. Roskwitalski v. Reiss, 338 Pa.Super. 85, 487 A.2d 864 (1985), appeal denied 514 Pa. 619, 521 A.2d 933 (1986). In Syno I, the earlier case before this Court we stated:

A court may enter a decree in divorce and dispose of ancillary matters at a later date. The legislature’s clear intent is to permit the entry of a divorce decree while collateral matters remain pending, thus allowing “the parties to quickly begin the task of restructuring their lives[,] ... so that the marriage and each party’s personal life are not held hostage to economic demands. The unexplained delay in this case only serves to thwart the purpose of the Divorce Code (citations omitted).

Syno I, 389 Pa.Super. at 508-09, 567 A.2d at 719. Under the doctrine of the law of the case, a trial court must strictly comply with the mandate of the appellate court. The trial court in the present case properly ordered bifurcation as mandated by this Court in our opinion quashing the appeal at Syno I.

We need not presently address the fourth and fifth issues raised by Mrs. Syno in light of our decision to vacate the divorce decree and remand for proceedings in accordance with this opinion. However, we will comment further to reiterate that an adjudicated incompetent may be “competent” to testify. In those cases where an adjudicated incompetent is a witness, the court must conduct an inquiry to determine whether the incompetent understands his or her duty to tell the truth and whether he or she is able to perceive, remember and communicate the pertinent facts. Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982); Anderson, supra; Trudell, supra. If the court so finds, then the incompetent is “competent” to testify. To that end, the court, in the exercise of its discretion, may order the incompetent to submit to a psychiatric evaluation. Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978); Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985).

In conclusion, we vacate the divorce decree and remand this action with instructions to the lower court to appoint a guardian ad litem for Mr. Syno and to conduct a more thorough hearing on Mr. Syno’s capacity to make reasonable decisions concerning his person, his understanding of the nature of a divorce action and his desire to maintain this action.

Decree vacated and case remanded for further proceedings in accordance with this opinion. Jurisdiction is relinquished.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I must dissent from that portion of the majority opinion which vacates the divorce decree and remands for the appointment of a guardian ad litem and for determination of whether Mr. Syno is capable of making sound personal decisions. Under the facts and circumstances of the present case, not the least of which is that the marriage was irretrievably broken at the time the divorce decree was initially granted, and the parties had lived separate and apart for at least five years, I must reject the majority’s finding that as an adjudicated incompetent, Mr. Syno may not proceed with a divorce decree without the appointment of a guardian ad litem. I do so for several reasons.

First, the incompetency determination relied upon by Mrs. Syno is clearly limited, establishing Mr. Syno’s competency only with respect to the management of his estate. Mrs. Syno’s attempt to rely on a court order declaring Mr. Syno to be incompetent to manage his personal affairs fails where the court order upon which she relies unambiguously states that this particular issue has neither been raised nor addressed. Order of Court, dated 6/29/84.

The Annotation, Divorce—Insanity as Precluding, 19 A.L.R.2d 144 (1951) § 20, at 182, states:

Since the right to sue for a divorce is regarded as as strictly personal to the aggrieved spouse, and no marital offenses automatically effect a dissolution of the marriage, the general rule is that, in the absence of a statute so authorizing, an insane person cannot institute an action for divorce.

The same Annotation also notes, however, that:

In the absence of a legal adjudication of insanity it will be presumed generally that a person has the capacity to bring a divorce action, even though not of strong mind, it being essential only that the plaintiff have sufficient mentality to understand the nature of the action taken.

Id. § 21, at 184. This position is echoed by other authorities:

[I]f the plaintiff has not been adjudicated, although admittedly insane, he himself may bring the action, and he may also bring the action if he is capable of consenting to the dissolution of the marriage whether or not he has been [so] adjudicated (citations omitted).

Homer H. Clark, Jr., Law of Domestic Relations in the United States (2d) § 14.2 at 535. Other authorities advance the same position:

In the absence of the adjudication of insanity or mental illness, there is a presumption that the capacity to maintain the action exits. If the party has a reasonable understanding of the nature and the purpose of the action for divorce, and has the will to decide whether or not an action should be brought, that person has the mental capacity to bring an action in his or her name (citations omitted).

I Family Law and Practice, Arnold H. Rutkin (ed.), § 2.06[1] at 2-33—2.34. These authorities support allowing the trial court to make a determination regarding capacity on a case by case basis, echoing the provision of Pa.R.C.P. 2051(b)(2) which allows a trial court to make this determination “in the pending litigation,” also in a case by case fashion.

Careful scrutiny of this record reveals that Mr. Syno testified as follows:

Q: Now, Mr. Syno, is there any question in your mind that at least for the last 15 years, you have lived separate and apart from your wife, Mrs. Syno?
A: I have lived separate and apart.
Q: Do you understand why we are here today
A: So I can get a divorce.
Q: Do you want a divorce.
A: That’s why I’m here.
Q: Is there any chance that you and your wife could ever possibly get together again as husband and wife?
A: No chance whatsoever.
Q: Are you sure about that?
A: Positive.
Q: Do you understand the proceedings here; that this is to get a divorce.
A: Right.
Q: And you’re telling us that you don’t want to live with your wife?
A: Right.
Q: And that you can’t possibly live together as man and wife?
A: Right.
Q: Do you understand all of this?
A: I understand very well.
Q: Is there any question in your mind about that?
A: No question whatsoever.
Q: Do you feel that your marriage is irretrievably broken?
A: It’s broken.
Q: Irretrievably; that means that you could never again—
A: It could never be picked up.

N.T., 12/2/86 at 20-21.

Based on this testimony, I would conclude, as did the Master and the trial court, that Mr. Syno had a reasonable understanding of the nature and the purpose of the action for divorce, and also had the will to decide whether or not a divorce action should be brought. Consequently, there is support for the conclusion that Mr. Syno had the mental capacity to bring a divorce action in his own name.

Next, citing to Fink’s Estate, 343 Pa. 65, 21 A.2d 883 (1941), Mrs. Syno argues that because Frank Syno had a guardian appointed for his estate he was not competent to testify and that his testimony is inadmissible. In Commonwealth v. Trudell, 371 Pa.Super. 353, 538 A.2d 53 (1988), we stated:

The competency of a witness to testify is is a matter within the sound discretion of the trial judge, whose decision will not be reversed absent a clear abuse of discretion. The breadth of that discretion is wide since the trial judge has the opportunity to personally observe and evaluate the demeanor and sincerity of the witness. Indeed, we have recognized that the better practice where questions of witness competency arise is to permit the witness to testify and to leave the matter of credibility to the fact finder.

371 Pa.Super. at 359, 538 A.2d at 56.

In general, it is presumed that a witness is competent. 42 Pa.C.S. 5911. Even though a witness may be mentally disabled or insane, the burden of proving incompetency falls to the party asserting that the witness is incompetent. Packel and Poulin, Pennsylvania Evidence (1987) § 601.7. The trial court may in the exercise of its discretion order a psychiatric examination if it has reason to believe that a witness is incompetent. Id. While there appears to be some support for the conclusion “that the usual presumption of competency is reversed where the witness has been committed to a mental hospital,” Id. at n. 6, in essence the question of a witness’ competency is a finding of fact. Hence while the cases often state that a finding of witness competence determined in the discretion of the trial court will not be disturbed absent an abuse of discretion, more rigorous analysis is advanced by observing that findings of fact will not be reversed if supported by evidence of record.

The trial court found Mr. Syno competent to testify, determining that Mr. Syno’s testimony appeared to be lucid and in direct response to questions asked of him. Trial court opinion, 5/18/90, at 10. Significantly, the trial court noted that even though the question of Mr. Syno’s competency had been raised by opposing counsel, the Master continued with the testimony and failed to indicate “that the hearings should be terminated or suspended” because Mr. Syno had difficulty understanding the nature of the proceedings. Id. As the trial court properly states, in applying an abuse of discretion standard, we will not attempt to usurp the Master’s duty as a finder of fact; substantial weight will be given to the findings of the Master where the Master had the opportunity to observe the witnesses and their demeanor. Id. at 7. Hence, I would find no error, and no abuse of discretion, and would affirm the order of the trial court.

      . Mrs. Syno later testified that the actual date of separation was November 23, 1983. N.T. 12/2/86 at 87.

      . It should be noted that Marie Syno was the petitioner in the Orphans’ Court action to appoint the guardian of Mr. Syno’s estate.

      . Diagnostic and Statistical Manual of Mental Disorders (3d ed.revised, 1987) at 109, sets forth the diagnostic criteria for Amnestic Syndrome:
      A. Demonstrable evidence of impairment in both short- and long-term memory; with regard to long-term memory, very remote events are remembered better than more recent events. Impairment in short-term memory (inability to learn new information) may be indicated by inability to remember past personal information (e.g., past Presidents, well-known dates).
      B. Not occurring exclusively during the course of Delirium, and does not meet the criteria for Dementia (i.e., no impairment in abstract thinking or judgment, no other disturbances of higher cortical function, and no personality change).
      C. There is evidence from the history, physical examination, or laboratory tests of a specific organic factor (or factors) judged to be etiologically related to the disturbance.

      . Further, it is the burden of the incompetent to establish that he has become competent. In re Porter Estate, 463 Pa. 411, 345 A.2d 171 (1975).

      . In addition, the court was required to conduct an inquiry into Mr. Syno’s competency to testify once it was presented with credible evidence that he was an adjudicated incompetent. Cf., Commonwealth v. Anderson, 381 Pa.Super. 1, 552 A.2d 1064 (1988), allocatur denied, 524 Pa. 616, 571 A.2d 379 (1989).

      . Our careful scrutiny of this record reveals that Mr. Syno testified as follows:
      Q: Now, Mr. Syno, is there any question in your mind that at least for the last 15 years, you have lived separate and apart from your wife, Mrs. Syno?
      A: I have lived separate and apart.
      Q: Do you understand why we are here today A: So I can get a divorce.
      Q: Do you want a divorce.
      A: That’s why I’m here.
      Q: Is there any chance that you and your wife could ever possibly get together again as husband and wife?
      A: No chance whatsoever.
      Q: Are you sure about that?
      A: Positive.
      Q: Do you understand the proceedings here; that this is to get a divorce.
      A: Right.
      Q: And you’re telling us that you don’t want to live with your wife? A: Right.
      Q: And that you can’t possibly live together as man and wife? A: Right.
      Q: Do you understand all of this?
      A: I understand very well.
      Q: Is there any question in your mind about that?
      A: No question whatsoever.
      Q: Do you feel that your marriage is irretrievably broken?
      A: It’s broken.
      Q: Irretrievably; that means that you could never again—
      A: It could never be picked up.
      N.T., 12/2/86 at 20-21.

      . Dr. Harding’s letter reads as follows:
      Dear Judge Muroski:
      Mr. Frank Syno was seen on November 27, 1985 for the purpose of a competency evaluation per the request of the Court. The format for the evaluation consisted of my examining Mr. Syno for a period of approximately forty-five minutes and then Mary Magistro (with whom he resides) joined us for a short while to include any information she might want to convey to me. Mr. Syno was aware that I am a psychiatrist and that the purpose of the evaluation was the question of competency. He gave his full permission to the evaluation.
      When questioned concerning his age and birthdate, Mr. Syno responded "It was Christmas Eve, I think 1923. I am either sixty-two or sixty-three years old”. He was able to identify the date as being November 27, 1985. He added, "I know Thanksgiving is coming up”. Mr. Syno informed me that he has been involved in three marital relationships and is separated from his third wife but the divorce has not been finalized. When I evaluated Mr. Syno in April, 1984, he had indicated to me that he had had two marriages. He is not able to tell me the approximate dates of any of his marriages and I am unclear as to exactly how many marriages have occurred. He talks about being involved in the Pacific Theatre during World War II and being hospitalized. I questioned him regarding the reason for hospitalization and he responded "I guess it was shellshock or something like that”. He informs me that he receives one hundred percent service connected disability. He talks about being involved in some kind of accident while working for Medico Industries but cannot recall when this occurred nor can he convey specific details regarding his injuries. He is able to identify the fact that his income is over one thousand dollars per month but does not know the exact amount. He believes he receives over three hundred dollars from Social Security per month and "something close to one thousand dollars” from his service connected disability. He can name the bank which is in charge of his finances and the person (Earl Campbell) who is in charge. Further, he is aware that Mary Magistro receives four hundred dollars per month for his room and board. Mr. Syno receives one hundred dollars per week for "spending money”. According to Mr. Syno, he and Mary Magistro eat out of the home on a fairly frequent basis and he purchases the meals. Mr. Syno is aware that he has a son but cannot give me his son’s age or the son’s location. He stated to me that he has a will and his funds will be left to his grandchildren. When asked to identify his grandchildren, Mr. Syno stated "I know there are either two or three”. He seems to relate primarily to Mary Magistro and has very few other acquaintances. He spends his time watching movies on television and some painting of paint-by-number pictures. He could not identify any favorite programs on television nor could he identify anything that he had watched in the last two or three days. Mr. Syno has resided with Mary Magistro since Thanksgiving of 1983 and comments that he is satisfied with his environment and feels that Mary Magistro takes good care of him. Mr. Syno is aware that he resided at Wesley Village prior to living with Mary Magistro but has no idea for what period of time.
      Mental status examination revealed Mr. Syno to be oriented to person and time but not to place. He was able to designate Washington, D.C., as the capítol of the United States and Harrisburg as the capítol of Pennsylvania. He can name the present president and when asked to name other presidents he could designate only Mr. Roosevelt. He was incapable of remembering three objects after three minutes. He could repeat two digits forward but only one digit backward. Matters involving judgment were handled in an inconsistent fashion with occasions demonstrating rather impaired judgment. He could remember what he had for lunch on the day of his evaluation but could remember none of his meals the previous day. There is no evidence of any psychotic ideation or symptomatology. There is no evidence of any significant depressive symptomatology. Obviously, as documented, recent and remote memory are rather markedly impaired.

        Diagnostic impression remains unchanged from my evaluation in April, 1984. The diagnosis, in my professional opinion, continues to be Amnestic Syndrome (DSM-III 294.00). There exists no question that Mr. Syno presents as an individual who could well be the victim of designing persons. He is a passive and pleasant individual and would do almost anything for anyone who is kind to him. Guardianship of estate has been established and should continue. Mr. Syno appears to be very satisfied with his living arrangement as it exists and, further, Mary Magistro appears to be quite reliable in providing supervision for him so that I find no basis for pursuing guardianship of person at this time.
      Should further information be necessary, feel free to contact me at any time.
      Respectfully submitted,
      /s/
      Gene F. Haring, M.D.

      . The trial court, relying on Carver Estate, 5 D. & C.3d 743 (1977), determines that incompetents may not be denied the right to seek divorce simply and only because of the adjudication of incompetency. Carver relies on Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), to conclude "that presumptions which deny basis civil rights violate the equal protection and due process clauses of the Fourteenth amendment." Carver, at 755. In view of our disposition pursuant to Pa.R.C.P. 2051(b)(2), we find it unnecessary to address this argument.