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HomeMy WebLinkAbout01-6098DAVID C. SHOVER, PLAINTIFF MICHELE R. MIELE, DEFENDANT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. - G'o L CIVIL ACTION - DIVORCE NOTICE Tfl DEi~,ND AND CI ~AIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary, Cumberland County Courthouse; Carlisle, Pennsylvania, 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION TWO LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the Court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing of business before the Court. 2917 NORTH FRONT STREET, HARRISBURG, PENNSYLVANIA 17110-1223 DAVID C. SHOVER, PLAINTIFF MICHELE R. MIELE DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND, PENNSYLVANIA CIVIL ACTION - CUSTODY COMPI,AINT FOR CII~TOD¥ 1. Plaintiff is David Shover residing at 2095 Clarendon Street, Camp Hill, Cumberland County, Pennsylvania. 2. Defendant is Michele R. Miele, residing at 8 Campbell Place, Camp Hill, Cumberland County, Pennsylvania. 3. Plaintiff seeks custody of the following children: Name Present Residence Age Jonathan Shover 8 Campbell Place, Camp Hill, PA 12 Lauren Shover 8 Campbell Place, Camp Hill, PA 10 4. The children were not bom out of wedlock. The children are presently in the custody of Defendant, Michele R. Miele. 5. During the past five (5) years, the children resided with the following persons and at the following addresses: 2917 NORTH FRONT STREET, HARRISBURG, PENNSYLVANIA 17110-1223 Michele R. Miele Michele R. Miele Michele R. Miele David Shover Michele R. Miele David Shover Addre~e~ 8 Campbell Place, Camp Hill, PA 34 Brentwood Road, Camp Hill PA 34 Brentwood Road, Camp Hill PA 15 Bellview Road, Marysville, PA Date March 2000 to Present Oct 1998 to March 2000 May 1997 to Oct 1998 Jan 1996 to May 1997 6. The mother of the children is Michele R. Miele. She is divorced from the father of the children, David C. Shover. 7. The relationship of Plaintiffto the children is that of father. Plaintiff currently resides with the following persons: Name Relationship Carolyn Shover wife 8. The relationship of Defendant to the children is that of mother. Defendant currently resides alone with the children. 9. Plaintiff and Defendant entered into a marriage settlement agreement on June 22, 2000. The Marriage Settlement Agreement, pages 8-10, grants Defendant, Michele R. Miele, primary physical custody of the children. Please see Marriage Settlement Agreement attached hereto as Exhibit 1. 10. Plaintiff does not know a person not a party to the proceedings who has physical custody of the children or who claims to have custody or visitation rights with respect to the children. 11. The best interest and permanent welfare of the children will be served by granting the S~lltOl~l~. ~D~R~ON & ~ACI~ 2917 NORTH FRONT STREET, HARRISBURG, PENNSYLVANIA 17110-1223 relief requested because: A. Plaintiff is a fit parent. B. Placing custody with Plaintiffwill provide continuity, stability and certainty to the children's lives. C. Plaintiffhas been unable to enjoy any periods of partial physical custody with the children without interruption, harassment and disruption from Defendant. D. Defendant's erratic behavior, whether or not in the presence of the children, gives Plaintiffreason to be concerned not only for his own safety, but also the safety of the children. 1) Defendant has evidenced and inability to act in the best interest of the children. 2) Plaintiff filed a Protection From Abuse petition and a hearing was held on October 5, 2001 before the Honorable Judge Hess. 3) At the conclusion of the Protection From Abuse hearing, Judge Hess indicated that if a petition was filed he would allow the transcript of the Protection From Abuse to be incorporated into the record in the custody matter. 4) Although the Protection From Abuse was denied, Judge Hess made it explicitly clear to the Defendant that she was not to burden, harass or contact the Plaintiff while Plaintiff had the children. 5) Even after the stem warning, Defendant refuses to heed the Judge's admonition of Plaintiff's request and continues to call Plaintiff during his scheduled visitation time. S~II(IKI~. ~D~K~ON ~ SACKS 2917 NORTH FRONT STREET, HARRISBURG, PENNSYLVANIA 17110-1223 6) Plaintiffbelieves that the only way to have Defendant stop her behavior is to have an Order entered, incident to this custody proceeding, determining Plaintiff's custody fights and specifically ordering Defendant to contain her unwanted and excessive contacts while the children are in the care, control and supervision of Plaintiff. 12. Each parent whose parental fights to the children have not been terminated and the person who has physical custody of the children have been named as parties to this action. WHEREFORE, Plaintiff requests this Court to grant legal and physical custody of the children to Plaintiff, David Shover with such partial primary physical custody to Defendant as the Court deems appropriate. Further, it is requested that the Court issue an Order prohibiting Defendant from calling or visiting the children during the times that Plaintiff has custody of the children. Respectfully submitted, SMIGEL, ANDERSON & SACKS 0/]/o By:~ Date: / r7 / /LeRoy Smige~, Esquire I.D. # 09617 Pete M.Monismith, Esquire I.D. # 84746 2917 North Front Street Harrisburg, PA 17110-1223 (717) 234-2401 Attorneys for Plaintiff 2917 NORTH FRONT STREET, HARRISBURG, PENNSYLVANIA 17110-1223 VERIFICATION I, David C. Shover, verify that the statements contained in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unswom falsification to authorities. Date: Dfi~C Shover 2917 NORTH FRONT STREET, HARRISBURG, PENNSYLVANIA 17110-1223 MARRIAGE SETTLEMENT AGREEMENT THiS AGREEMENT, madethisZ'2.~d% dayof ,"'~**,¢. ~_ 2000, byand between DAVID C. SHOVER, of 413 Boxwood Court, Mechanicsburg, Cumberland County, Pennsylvania 17055, hereinafter referred to as "Husband", and MICHELE R. SHOVER, of Camp Hill, Cumberland County, Pennsylvania 17011, hereinafter referred to as "Wife." WITNESSETH: WHEREAS, Husband and Wife were married on August 17, 1985; and WHEREAS, differences have arisen between Husband and Wife in consequence of which they are living separate and apart from each other, presently, within the marital home; and, WHEREAS, Husband and Wife have made a full disclosure of their assets to each other; and, WHEREAS, Husband and Wife are the natural parents of two minor children, to wit: Jonathan D. Shover, born March 31, 1989 (age 11), and Lauren M. Shover, born May 9, 1991 (age 9); and WHEREAS, Husband and Wife desire to settle and determine their rights and obligations with respect to each other, with respect to the disposition and distribution of property rights and interests, with respect to the matters of alimony, alimony pendente lite, spousal support and child suppod, and with respect to the custodial rights of each of the parties with respect to their two minor children. NOW, THEREFORE, the parties intending to be legally bound hereby, do covenant and agree: 1. SEPARATION. It shall be lawful for each party at all times hereafter to continue to live separate and apart from the other party at such places as he or she may from time to time choose or deem fit. The foregoing provisions shall not be taken as an admission on the part of either party of the lawfulness or unlawfulness of the causes leading to their living apart. 2. INTERFERENCE. Each partyshallbefreefrom interference, authority, and contact by the other, as fully as if he or she were single and unmarried except as may be necessary to carry out the provisions of this Agreement. Neither party shall molest the other or attempt to endeavor to molest the other, nor compel the other to cohabit with the other, or in any way harass or malign the other, nor in anyway interfere with the peaceful existence, separate and apart from the other. 3. WIFE'S DEBTS. Wife represents and warrants to Husband that since the separation she has not and in the future she will not contract or incur any debt or liability for which Husband or his estate might be responsible and shall indemnify and save harmless Husband from any and all claims or demands made against him by reason of debts and obligations incurred by the Wife prior to the date of the delivery of this 2 Agreement, and all further debts incurred by the Wife from and after the date of delivery hereof, shall be the Wife's individual responsibility. 4. HUSBAND'S DEBTS. Husband represents and warrants to Wife-~that since the separation he has not and in the future he will not contract or incur any debt or liability for which Wife or her estate might be responsible and shall indemnify and save harmless Wife from any and all claims or demands made against her by reason of debts and obligations incurred by the Husband prior to the date of the delivery of this Agreement, and all further debts incurred by the Husband from and after the date of delivery hereof, shall be the Husband's individual responsibility. 5. JOINT DEBTS. The parties acknowledge that they have only two items of joint indebtedness, to wit: A. A Visa credit card account No. 4851-6000-0101,3080, in the approximate amount of $4,000.00, and B. A contract for orthodontic treatment in the approximate amount of $3,900.00, payable in contracted installments. Husband agrees that he shall pay the foregoing two items of indebtedness, in full, and that he shall indemnify and hold harmless Wife from any further liability or responsibility with regard thereto. 6. MUTUAL RELEASE. has released and discharged, and by this Agreement does for himself or herself, and his or her heirs, legal representatives, executors, administrators, and assigns, release, and Subject to the provisions of this Agreement, each party discharge the other-of and from all causes of action, claims, rights, or demands', whatsoever in law or equity, which either of the parties ever had or now has against the other, except .any or all cause or causes of action for divorce and except fer any or all causes of action for breach of any provision of this Agreement. 7. DISCLOSURE OF PROPERTY. Husband and Wife acknowledge and agree that they have made a full and complete disclosure to the other of all information pedaining to the parties' separate and marital property owned, possessed and/or controlled by the other at the time of the separation of the parties. 8. BANK ACCOUNTS. The parties have divided, to their mutual satisfaction, all banking accounts which either or both of them heretofore have maintained as joint accounts or as separate accounts of Husband or of Wife, and do hereby acknowledge and confirm that such division heretofore made by them shall be and remain final. 9. DIVISION OF PERSONAL PROPERTY. The parties are the owners of variety of household furnishings and other personal property which they have accumulated and which they have utilized in maintaining their marital home. The parties have agreed to a division of the personal property. Specifically, Wife agrees that the list of personal property set forth on Exhibit A, attached hereto, and incorporated herein by reference, shall, upon the signing of this Agreement be and become the sole personal property of Husband. Husband agrees that the list of personal property set forth on Exhibit B, attached hereto, and incorporated herein by reference, shall, upon the signing of this Agreement be and become the sole personal property of Wife. 10. AUTOMOBILES. The parties are the joint owners of a 1993 Ford Escort Statio'n Wagon, upon which there is no encumbrance, and Husband agrees that he shall execute the certificate of title transferring the said automobile to Wife, thereupon, said automobile shall be and remain the sole property of Wife. Husband is the titled owner of a 1996 Jeep Grand Cherokee, upon which there does exist an encumbrance of the West Shore Teachers Federal Credit Union, securing a loan utilized for the purchase of the automobile. Wife agrees that said automobile shall be and remain the sole property of Husband. However, Husband agrees that he, alone, shall pay the remaining loan account to the West Shore Teachers Federal Credit Union and shall indemnify and hold harmless Wife from any further liability or responsibility with regard thereto. Finally, the parties are the joint owners of a Jayco pop-up camper, and Wife agrees that she shall execute the certificate of title, transferring sole title thereof to Husband, and thereupon, Husband shall be and remain the sole and separate owner of the camper. 11. CASH ASSETS. The parties have sold their jointly owned home and have derived therefrom net proceeds in the sum of $5,994.82. Wife has received a settlement award as a result of an accident in which she was involved in September, 1997, said proceeds of settlement being in the sum of $23,169.21, of which, each party has already received the sum of $2,000. The foregoing cash assets total $29,164.03. The parties agree that 65% of the foregoing sum of money shall be delivered to Wife ($18,956.62, less $2,000 already received, less $1,400 on account of the parties' VISA debt, less $780 on account of the parties' orthodontic debt), to wit: a net sum of $14,776.62; and, 35% thereof shall be delivered to Husband ($10,207.41, less the $2,000 already received, plus $1,400 upon the parties' VISA debt, plus $780 upon the padies' odhodontic debt--both of which debts Husband shall pay, as provided in paragraph 5 hereof) for a net sum of $10,387.41. In addition, the total sum of interest earned up.on the escrow deposit of the foregoing sums of money shall be calculated and shall be paid and divided between the parties upon the same 65/35 basis. 12. RETIREMENT ACCOUNT. Husband is a participant in the Pennsylvania State Employees Retirement System and has, during his years as a teacher, achieved a valuable, vested interest in contributions which he has made to that retirement system, as well as having achieved a valuable, vested interest in contributions made on his behalf by his school employers and the Commonwealth of Pennsylvania, thereby resulting in a substantial right on the part of Husband to receive, upon retirement, a substantial pension payment. The padies agree that they shall seek the issuance of a Qualified Domestic Relations Order with regard to said PSERS pension or retirement account of Husband wherein it shall be provided that Husband shall irrevocably designate the pension to be a "joint and 100% survivor" pension and shall further provide that, upon his retirement and entitlement to receive his pension, a coverture fraction shall be established which will reflect the marital portion of the monthly pension (dating from the marriage of the padies on August 17, 1985, to the date of the separation of the parties on October 22, 1998), and which will then provide that Wife is to receive, as a direct pension benefit, sixty-five (65%) percent of the marital portion of the entire pension benefit of Husband (the remaining 35% of the marital portion, and the entirety of the non-marital podion of the pension benefit to be the sole and exclusive benefit and property of Husband). Such designation shall be construed also to include the application of the coverture'fraction, and a distribut~n of 65% to Wife, 35% to Husband, of any sums of money which Husband may be entitled to receive upon his retirement account of any contributions, together with interest earned thereon, he may have made to the PSERS retirement plan between the date of marriage of the parties and the date of their final separation. 13. ALIMONY, ALIMONY PENDENTE LITE, COUNSEL FEES AND EXPENSES. Husband agrees that, upon the entry of a Decree in Divorce in the civil divorce action presently pending in the Court of Common Pleas of Cumberland County, Pennsylvania, in No. 99-5469, Civil, he shall pay to Wife alimony in the sum of $400 per month until September 31, 2009, such sum of alimony to be non-modifiable, but to terminate on September 31, 2009. The obligation of husband to pay alimony shall terminate upon the occurrence of any one of the following events, to wit: (1) the death of Wife, (2) the remarriage of Wife, or (3) the cohabitation by Wife with a male not related to her by blood. Both parties waive any right to seek or receive the payment of alimony pendente lite from the other party. Both parties waive any right to demand and receive any payment from the other party on account of any counsel fees or expenses incurred by either party in connection with the pending action in divorce which has been filed by Husband. 14. CUSTODY OF MINOR CHILDREN. The padies are the parents oftwo minor children, to wit: Jonathan D. Shover, born March 31, 1989, presently eleven (11) years of age, and Lauren M. Shover, born May 9, 1991, presently.eight (8) years of age. The padies agree-that they will share legal custody of their two children, to wit: each of them shall have an equal voice in the making of major decisions affecting the best interests of their minor children, including, but not limited to: medical, religious and educational decisions. The padies also agree that primary physical custody of the two minor children shall be in the hands of Wife, subject, however, to the right of partial custody of the two minor children in the hands of Husband. With regard to the padial physical custody of the two minor children in the hands of Husband, the padies agree that they shall reasonably cooperate with each other in an effort to minimize the impact which their separation may or shall have upon the minor children but, in an effort to provide some modicum of certainty, the parties agree that the following, minimum standards of partial custody shall prevail, to wit: A. The minor children shall continue to be enrolled as students in the Camp Hill school system and shall not be enrolled in another school system unless both parties shall mutually agree to such change; B. In the event either Husband or Wife shall die while the two children, or either of them, are still minors, then the parents of the deceased party, i.e., maternal or paternal grandparents, shall be accorded by the surviving party reasonable rights of visitation with their minor grandchild or grandchildren without the necessity of presenting a petitiob for visitation to a Court of competent jurisdiction. C. Husba~d shall have partial physical custody of the two minor children at his residence on alternating weekends, from Friday evening following dismissal from school until Sunday evening at 7:00 p.m., and shall, in addition, have partial physical custody of the two children Overnight, each week, from Tuesday following school dismissal until father's return of the children to school on the immediately succeeding Wednesday morning and, on the alternating Thursdays prior to the weekend when the children shall remain in the custody of their mother, Husband shall have partial custody of the two children overnight from that Thursday evening following school dismissal, until father's return of the children to school on the immediately succeeding Friday morning; D. During the course of each summer recess from school, each of the parents (Husband and Wife) shall have three weeks, consecutive or non-consecutive, of physical custody of their two children, each to provide to the other thirty (30) days advance notice of their selection of weeks (if day care is required during a period of sole custody, the party having sole custody shall bear the expense of day care, and, the remaining weeks of the summer recess from school shall be in accordance with the normal partial custody schedule); E. Except for Christmas vacation, Husband and Wife shall alternate having custody of the two children on the holidays of Easter Day, Memorial Day, Independence Day, Labor Day and Thanksgiving Day, commencing at 6:00 p.m. on the evening prior to the holiday, until 9:00 p.m. of the holiday; and, F. The Christmas/New Year holiday recess from school shall be comprised of two segments: Segment A being from 3:00 p.m. on December 23 to' 9:00 p.m. on December 24, and from 9:00 p.m..on December $0 to 6:00 p.m. on the last day of the holiday recess; and, Seqment B being from 9:00 p.m. on December 24 to 9:00 a.m. on. December 30, with the parties alternating custody of the two minor children during Segment A and Segment B from year to year, and with Wife having Segment B in 1999. G. Both of the parties agree that, at any time a parent who has sole physical custody of the children shall have need of child care services, that parent shatl, prior to engaging a professional child care service, make a request of the non-custodial parent to provide the needed child care services. 15. SUPPORT OF CHILDREN. Commencing upon the execution of this Agreement, Husband agrees to pay, and Wife agrees to accept, as support for the benefit of Jonathan and Lauren, the sum of $426.75 bi-weekly. This agreement for support of children may, at the option of Wife, be entered as an Order of support in any coud of competent jurisdiction over matters of child support. The amount of child support specified herein has been based upon the Pennsylvania Supreme Coud Support Guidelines, and any future modification thereof, whether by mutual agreement of the parties of by Order of Coud shall, likewise, be based upon said Guidelines. 16. LIFE INSURANCE. Husband shall secure and/or maintain a term life insurance policy upon his life, shall name Wife as the beneficiary of such policy in the l0 event of the death Of Husband, and shall provide to Wife written proof of such policy and beneficiary designation. At the present time, Husband is the named insured upon a group term policy of life insurance by virtue of his emplcyment by the Camp Hill School District; however, in the event such group term policy should no longer exist, Husband shall, nevertheless, provide a policy of insurance as herein set forth. Husband shall maintain, and pay the premiums necessary to maintain such policy or policies of life insurance for the purpose of providing a fund for the continued support of the children of the parties in the event of the death of Husband. However, upon the attainment of Lauren to the age of 19 years, Husband shall have the right to change the beneficiary and designate any person of his choice to be the beneficiary upon said policy of term life insurance. 17. IMPLEMENTATION OF AGREEMENT. The padies agree that, upon the execution of this Agreement, each of them will sign an Affidavit of Consent and Waiver of Notice of Intention to Request Entry of a Divorce Decree, as well as all other documents contemplated by the terms of this Agreement and necessary to provide for the transfer of any asset intended to be transferred to one or the other of the parties under the terms of this Agreement and shall cause such executed documents to be delivered to each other upon the entry of a Final Decree in Divorce. 18. BREACH. If either party breaches any provision of this Agreement, the other party shall have the right, at his or her election, to sue for damages for such breach, and the party breaching this contract should be responsible for payment of legal fees and costs incurred by the other in enforcing their rights under this Agreement, or seek such other remedies or relief as may be available to him or her. 19. ENTIRE AGREEMENT. This Agreement cont_ainsthe entire understanding of the parties and there are no representations, warranties, covenar;ts or undertakings other than those expressly set forth herein. 20. MODIFICATION AND WAIVER. The modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. 21. DESCRIPTIVE HEADINGS. The descriptive headings used herein are for convenience only. They shall have no effect whatsoever in determining the rights or obligations of the parties. 22. INDEPENDENT SEPARATE COVENANT. It is specifically understood and agreed by and between the parties hereto that each paragraph hereof shall be deemed to be a separate and independent covenant and agreement. 23. APPLICABLE LAW. This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania. 24. VOID CLAUSE. if any term, condition, clause, or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken from this Agreement, and in all other respects this Agreement shall be valid and continue in full force, effect and operation. 12 25. ENTRY AS PART OF THE DECREE. Husband has cau~sed to be filed in the Court of Common Pleas of Cumberland County .at No. 99-5469, an action in divorce pursuant to Section 3301(c) of the Domestic Relations Code. Both parties hereto agree that each will execute consents to divorce so that a final dbcree in divorce may be entered in the above case. Both parties agree that it is their intention that the within Agreement shall survive the aforementioned action in divorce and that no order, judgment or decree, temporary or interlocutory, final or permanent, shall affect or modify the financial terms of this Agreement. Both parties agree that this Agreement shall be made part of any judgment or decree of final divorce but shall not be merged therein. 26. VOLUNTARY EXECUTION. Husband acknowledges that Carl G. Wass, Esquire, has served as legal counsel to him in connection with the drafting of this Marriage Settlement Agreement. Wife acknowledges that James A. Miller, Esquire has served as legal counsel to her in connection with the drafting of this Marriage Settlement Agreement. Both parties do acknowledge and declare that each does understand the full legal effect of this Agreement, especially with regard to the fairness and equitable nature of the distribution of marital property between them, and the waiver of spousal support, alimony, alimony pendente lite, and counsel fees and costs, as provided in this Agreement. Both parties acknowledge that their execution of this Agreement has been done voluntarily and knowingly and that their execution is not the result of any duress or undue influence. IN WITNESS WHEREOF, the parties have hereunto set the r hands and seals the day and year first above written. WITNESS: D~'/~T~ C. Shover" ~ , Mi~:hele R. Shover 3698 ]4 AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY OF ~ SS: On this, the ¢~.~ day of -.J d/~ ¢_ ~, 2000, before me, a Notary Public, the undersigned officer, personally appeared DAVID C. SHOVER, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Pu blid_~a 3698 NOTAR AL SEAL NANCY L, BRESKI, Notary Public Harrisburg, Dauphin County M;t March 16,200z Commission Expires ]5 AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY OF C~ SS: On this, the ~ day of .~(_~,~ Public, the undersigned officer, personally~peared MICHELE ~fore me, a Notary R. SHOVER, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand al d official seal. Notary P. b~lic_.~_ I ~c,,~r.~ ~. , , 3698 16 PERSONAL PROPERT¥OF HUSBAND See Paragraph 9 2. 3. 4, 6. 7. 8, 9. 10. 'il. 12.. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. Waterbed and all bedroom furniture, except for end table lamps and chair. Coffee maker Toaster Half of the pans and ulensils Maple Leaf sofa Lane recliner Green lamps Corner cupboard Kawai piano Stereo system and speakers One-half cd's, lapes and records All firearms Gun safe Role-top desk All equipmenl belonging to Keyta All music and PA equipment Green resin table and four chairs Lawn mower Snow blower All personal tools and ladders Bicycle Sears vacuum One-half of linens and bath supplies Roof carrier Camping supplies All items of personal properly and clothing; personall ~ those of Husband; or, given to Husband by members of his family. I. Bedroom sets and fUrniture of children 2. Cooking supplies 3. Toaster oven 4. One-half of pans and utensils 5. Living room furniture 6. Pennsylvania House sofa 7. Flirror 8. Grandfather clock 9. Cedar chest 10. Dining room furniture 1 I. ~;lider rocker and ottoman 12. Ornamental birdhouse 13. Desk 14. Filing Cabinet 15. Tri-sport game 16. Pine table and chairs 17. Green desk chair 18. Baby dresser 19. Television/VCR/Entertainment center 20. Remaining resin chairs 21. Card table 22. Porch Swing 23. Rabbil cages and Supplies 24. IViiele Vacuum 2~. Bicycle 26, Camera 27. One-half linens and balh supplies 28. Christmas tree 29. ~lasher and dryer 30. Chest freezer 31. All items family, of personal property and clothing; personally those of Wife; or, given to Wife by members of his See Paraqraph 9 PERSONAL PROPERLY OF WIFF 1. Bedroom sets and furniture of children 2. Cooking supplies 3. Toaster oven 4. One-half of pans and utensils 5. Living room furniture 6. Pennsylvania House sofa 7. Hirror 8. Grandfather clock 9. Cedar chest 10. Dining room furniture 1 'i. Glider rocker and ottoman 12. Ornamental birdhouse 13. Desk 14. Filing Cabinet 15. Tri-sport game 16, Pine table and chairs 17. Green desk chair 18. Baby dresser 19. Television/VCR/Enterlainment center 20. Remaining resin chairs 21. Card table 22. Porch swing 23. Rabbit cages and supplies 24. Hiele vacuum 25. Bicycle 26. Camera 27. One-half linens and bath supplies 28. Christmas tree 29. Washer and dryer 30. Chest freezer 31. All items of personal properly and clothing; personally those of Wife; or, given to Wife by members of his family. SHERIFF'S RETURN - REGULJ~R CASE NO: 2001-06098 P COMMONWEALTH OF PENNSYLVANIA: cOUNTY OF CUMBERLAND SHOVER DAVID C VS MIELE MICHELE R GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - CUSTODY was served upon the MIELE MICHELE R DEFENDANT , at 1822:00 HOURS, at 8 CAMPBELL PLACE CkMP HILL, PA 17011 MICHELE R MIELE a true and attested copy of COMPLAINT - on the 30th day of October , 2001 by handing to CUSTODY together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 9.75 Affidavit .00 Surcharge 10.00 .00 37.75 Sworn and Subscribed to before me this g ~ day of ~ ~( A.D. / ;Prothonotary So Answers: R. Thomas Kline 10/31/2001 SMIGEL ANDERSON SACKS Deputy S~ri f f DAVID C. SHOVER Plaintiff Vo MICHELE R. MIELE Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA. : NO. 01 6098 CIVIL : CIVIL ACTION - LAW : CUSTODY DEFENDANT'S ANSWER TO COMPLAINT FOR CUSTODY AND COUNTERCLAIM FOR CUSTODY AND NOW, comes Defendant, Michele R. Miele (hereinafter "Mother"), by and through her attorney, James W. Abraham, Esquire, Abraham Law Offices, Harrisburg, Pennsylvania, and files the following: 1. through 10. Admitted. 11. Denied. It is denied that the best interests of the children will be served if Plaintiff is granted primary physical custody as requested in that: Plaintiff is not a fit parent as Plaintiff has engaged in a course of conduct in an attempt to alienate the children from their Mother and is otherwise emotionally unstable as stated herein; Placing custody with Plaintiff will not provide continuity, stability or certainty to the children's lives but will be disruptive, unpleasant and detrimental for the children as any decrease in Mother's custody time would be emotionally traumatic for the children. Plaintiff's inability to enjoy periods of partial custody is due to Plaintiff's own emotional instability and insecurity, as Plaintiff conveniently blames Mother and uses Mother as an excuse for his own failures as a parent during his partial custody time periods; as further demonstrated by the dismissal of Plaintiff's PFA petition. Do It is denied that any reasonable, emotionally stable person would have any concern for his own safety or that of the children due to Mother's actions as alleged in Plaintiff's PFA petition in that: 1) It is denied that Mother has evidenced an inability to act in the children's best interests, as she has continually acted in their best interests as the primary physical custodian for three (3) years since the parties' separation in October, 1998, which custody was not interrupted by Plaintiff's PFA filing; 2) - 4) It is denied that Mother would cause any reasonable, emotionally stable person any concern for his own safety or the safety of the children, as evidenced by Plaintiff's failed attempt to falsely accuse Mother of abuse pursuant to the PFA Act, as although Judge Hess admonished Mother, he dismissed the Petition as it was not abuse under the Act, i.e., her actions did not place a reasonable person in fear of their safety By way of further answer, although a reasonable person would not be placed in fear of their safety by Mother's actions, as determined by Judge Hess in dismissing Plaintiff's PFA petition, Plaintiff's unreasonable and abnormal fear of Mother demonstrates Plaintiff's emotional instability and paranoia, as demonstrated by his averments in his PFA petition, in which Plaintiff stated that due to Mother's actions, Plaintiff: so continually looks out of the window of his house in fear of Mother driving by; b. was afraid when Mother used the word "freakin"; c. keeps the blinds drawn and the doors locked, even when he just goes into the yard; d. cannot enjoy his day-to-day activities without fear that Mother is watching him; e. continually looks over his shoulder. Mother submits that an emotionally stable and fit parent would not have such fears and insecurities as alleged by Plaintiff and as testified to by Plaintiff at the PFA hearing. 5) since the PFA hearing, Mother as not engaged in any type of harassment or improper contact with Plaintiff during his custody time periods; 6) Mother submits that Plaintiff's problems emanate from his own actions in parenting the children during his custody time periods and Plaintiff's attempts to alienate the children from their Mother as stated in Mother's counterclaim hereto. 12. Admitted. WHEREFORE, Mother dimiss Plaintiff's Complaint physical custody of the children and to primary physical custody of the children Mother's Counterclaim hereto. respectfully requests the Court to and Plaintiff's request for primary maintain and/or grant to Mother as stated in 13. Mother through 12 hereto. incorporates by reference paragraphs 1 14. Mother has always been the primary caretaker of the children during the marriage and from "day one" since the parties' final separation in October, 1998, over a three (3) year period, as to the children's daily and long-termphysical and emotional needs; which custody was not interrupted by the PFA action filed by Plaintiff. 15. During Mother's primary physical custody, the children have prospered and benefitted therefrom, as Mother has provided an emotionally stable, secure and family atmosphere for the children at all times. 16. Since the parties separation, Plaintiff has had partial custody rights, which rights were specified in the parties' marital agreement, which provides every other weekend visitation and weekday visitation either once or twice per week overnight. 17. The best interests and permanent welfare of the children will be served bygranting Mother primary physical custody and Plaintiff partial custody in that: A. Mother has always been the primary caretaker of the children; B. Mother has provided the only emotionally stable, secure and family environment for the children; C. The children have prosperred, benefitted and excelled in their mental, emotional and educational growth, development and well being with Mother as the primary physical custodian under the current schedule of custody; D. The children have bonded with Mother to a much greater extent than to Plaintiff, particularly since the parties' separation and divorce and Plaintiff's re-marriage; E. Any reduction of Mother's custodial time periods would be traumatic and detrimental to the children as the current schedule meets any and all of their daily and long term needs. Fo Plaintiff has engaged in a course of conduct which attempts to alienate the children from their Mother and has attempted to disparage, humiliate and demean Mother in the eyes of the children, in that Plaintiff: 1) filed a bo~us and fabricated PFA action against Mother to try to disparage Mother and to utilize against her in future custody proceedings; 2) discusses legal proceedings with the children in telling the children, ~, that "even the Judge said your Mother was out of control" in an attempt to disparage and demean Mother; 3) tries to substitute his current Wife, Carolyn, as the mother figure by telling the children "if you don't love Carolyn, then you don't love me." 4) does not allow reasonable telephone contact by the children to their Mother during Plaintiff's custody times; or yells at the children while they are talking to their Mother; 5) makes intimidating and hurtful statements to the children to in order to get his way with the them, e.g., Plaintiff told Jonathan that if he does not go to hunting camp with Plaintiff, Jonathan will never get to go hunting with Plaintiff again; "If you don't love Carolyn then you don't love me"; acts "grumpy" during his visitation if the children disagree with him which intimidates the children; Granting Plaintiff any additional time from the current custody schedule will only serve to advance Plaintiff's attempts to alienate the children from their Mother; Plaintiff has arbitrarily and unilaterally sent their son, Jonathan, to a counselor and intentionally failed to even advise Mother, let alone seek her prior consent; or provide Mother with any information regarding the counselor/counseling. Jo Plaintiff is emotionally unstable in that he is unreasonably afraid of Mother and paranoid as to Mother, as stated in Paragraph ll.D. 2) -4), which is incorporated herein by reference, and Plaintiff engages in unusual actions, including but not limited to, the following: 1) has his wife videotape custody exchanges with Mother from inside their house or from their car; 2) keeps his bedroom door locked at all times while the children are in his custody; and prohibits the children from entering certain sections of the residence, which may or may not be related to storing his weapons; 3) issues unusual punishment in that for drawing while in church, the children were forced to sit facing the wall for one or two hours, one child in total darkness in the basement; and if they moved, they had to sit longer and could not use the bathroom; and when one of the children stated they were thirsty, Plaintiff sat beside them, drinking a glass of water and did not provide her with a drink. The children do not have a good relationship with Plaintiff's wife and have repeatedly expressed to Mother that if Plaintiff is not present during his custodial time periods, they do not wish to be alone with Plaintiff's Wife. The children have expressed to Mother that they wish to spend more time with her. W~EREFORE, Defendant/Mother, respectfully requests Your Honorable Court to grant Mother primary physical custody of the children and provide Plaintiff with: 1) every other weekend visitation; 2) reduce the weekday visitation to one evening per week during the school year, which would be an overnight during the summer; and 3) order Plaintiff to provide any and all information regarding the counseling for Jonathan and to first seek Mother's approval for all similar legal custody decisions. Respectfully submitted: James W. Abraham, Esq. Abraham Law Offices 513 North Second St. }{arrisburg, PA 17101 (717) 232-7825 Attorney for Defendant, Michele R. Miele DATE: 12/11/01 ~KIFI~TION I, ~c~6l~ - t6L~ , the undersigned, hereby verify and confi~ that I have reviewed the foregoing document and the statements therein are t~e and correct to the best of my knowledge, info~ation and belief. I further understand that any false statements ~de herein are subject to the penalties of 18 relating to unsworn falsification to Pa.C.S.A. Section 4904, authorities. C~TIFI~TE OF S~RVI~ I, James W. Abraham, Esquire, the undersigned, do hereby certify that I have served a true and correct copy of the foregoing document, by first class mail, on the date indicated below, to the following person(s): Peter M. Monismith, Esq. Smigel Anderson 2917 North Front St. Harrisburg, PA 17110 Melissa P. Greevy, Esq. Custody Conciliator 214 Senate Ave., Suite 105 Camp Hill, PA 17011 DATE: 12/11/01 James W. Abraham, Esquire DAVID C. SHOVER, .. Plaintiff : VS. . : MICHELE R. MIELE, : Defendant : JAN 0 3 ZOOZ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6098 CIVIL ACTION - LAW CUSTODY INTERIM ORDER OF COURT Hess, J.- AND NOW, this /5' * day of January, 2002, upon consideration of the attached Custody Conciliation Summary Report, it is hereby ordered and directed as follows: 1. All communication between the parties shall be restricted to the business of parenting and shall occur via e-mail except in the event of a bonafide medical emergency. There shall be no visits to the home of the custodial parent by the non-custodial parent. The parties are prohibited from discussion of their conflicts in the presence or earshot of the minor Children and the parties are to create a conflict-free zone for the Children wherein the Children are insulated from the parties' dispute. Specifically, there shall be no discussion of the custody litigation and/or upcoming hearing in the presence or earshot of the minor Children. 2. Mother shall make the appropriate adjustments to her e-mail account to allow e-mail exchanges with Father to occur. 3. Upon the request of either or both Children, either or both Children may have telephone contact the non-custodial parent one time daily before 8:00 p.m. 4. The schedule for Christmas 2001 is confirmed as follows: Father shall have custody from December 23~ at 3:00 p.m. through December 24th at 9:00 p.m., and December 30th at 9:00 p.m. until the Children are returned to school on January 2, 2002. Father shall provide all transportation incident to his periods of custody. 5. Father shall participate in the counseling services now provided to the parties' older Child by Jake Theissen, Ph.D. 6. The parties shall attend the Seminar for Separating Families and provide the Court with verification of their attendance at said Seminar within sixty days of the date of this Order. 7. The parties shall strictly adhere to the provision of the martial settlement agreement of June 22, 2000, which provides for shared legal custody of the minor Children. No. 01-6098 - Civil Term 8. The physical custody schedule in the June 22, 2000 Marital Settlement Agreement shall continue in full force and effect except that Father's custodial schedule shall be altered to provide Father with custody from Fridays after school until the Children are returned to school on Monday morning during his alternate weekends periods of custody. 9. A hearing is scheduled before Judge Hess in Courtroo,m Number 4 of the Cumberl,andACounty Courthouse, on the ~5'c~ day of /""J~-~'-, ~/ 2002 o'clock ?,,J0.fltvl., at which time testimony Will be taken F'--"- .... -- ..... '. · , at · uf u~e purposes o~me nearing, the Father, David C. Shover, shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for the parties or the parties pro se shall file with the Court and opposing counsel/party a memorandum setting forth each party's position on custody, a proposed parenting plan, a list of witnesses who are expected to testify at the hearing, and a summary of the anticipated testimony of each witness. These memoranda shall be filed at least ten days prior to the hearing date. BY THE COURT, Dist: Key. Hess, J. LeRoy Smigel, Esquire, 2917 N. Front Street, Harrisburg, PA 17110-1223 James W. Abraham, Esquire, 513 N. Second Street, Harrisburg, PA 17101 DAVID C. SHOVER, Plaintiff MICHELE R. MIELE, : Defendant : : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6098 CIVIL ACTION - LAW CUSTODY CUSTODY CONCILIATION SUMMARY REPOR~ IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Children who are the subject of this litigation is as follows: NAM~E Jonathan Shover Lauren Shover March 31, 1989 May 9, 1991 CURRENTLY IN CUSTODY O1' Mother Mother 2. A Custody Conciliation Conference was held on December 17, 2001, with the following individuals in attendance: the Father, David C. Shover, and his counsel, Pete Monismith, Esquire, and LeRoy Smigel, Esquire; the Mother, Michele R. Miele, and her counsel, James Abraham, Esquire. 3. The parties were seen pursuant to Father's Petition to Modify Custody filed on October 24, 2001. The Defendant's answer and counterclaim presented at the Custody Conciliation Conference was dated December 11, 2001. The Father's Petition was based on his concerns that Mother frequently disrupts his periods of partial custody with her telephone calls and visits to his home during his periods of custody. He is additionally concerned because the two Children have had numerous unexcused tardies to school this year. He represents these have occurred during the periods of Mother's custody. Father reports that the older Child's grades are poor because of incomplete assignments and homework. Father reports that the Children have been left at home with no adult, by Mother. He has also expressed that there have been difficulties with the flow of information regarding the Children's appointments and extracurricular activities during his periods of custody. Based on Father's concerns he is seeking primary physical custody of the Children and a prohibition of Mother's telephone calls during his periods of custody. 4. Counsel for Mother filed a counterclaim and an answer indicating that a change of custody would be traumatic for the Children. She goes on to allege that Father is attempting to alienate her from the Children and that a change from being in her primary custody since October 1998 would not be in the Children's best interest. Mother describes Father as No. 01-6098 - Civil Term unstable and paranoid. In her counterclaim, Mother seeks reduced weekday visitation with Father and alternate weekend visitation as well as compliance with the sharing of information regarding counseling provided to the older Child. 5. The parties were able to reach some agreements at the Custody Conciliation Conference. However, the ultimate decision as to who should be the primary custodial parent remains in dispute. Therefore, the matter will be referred for a hearing before the Court. Issues upon which the parties agreed include communication between the Children and the non-custodial parent, transportation, counseling, and attendance at the Seminar for Separating Families. Date 6. The parties have elected not to participate in a custody evaluation. 7. The Conciliator has provided a recommended interim Order to the Court. e issa Peel Greevy, Esquire Custody Conciliator DAVID SHOVER, Plaintiff VS. MICHELE R. MIELE, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 01-6098 CIVIL : : CUSTODY ORDER OF COURT AND NOW, this 2 ~ ' day of February 2002, upon consideration of the parties' agreement, by and through their counsel, the hearing scheduled in the above captioned case for April 5, 2002, has been rescheduled for May 23, 2002, at 9:30 a.m. in Courtroom Number 4 of the Cumberland County Courthouse. By the Court, Joan Carey Attorney for Defendant MidPenn Legal Services 8 Irvine Row Carlisle, PA 17013 Leroy Smigel Attomey for Plaintiff Smigel, Anderson & Sacks 2917 N. Front Street Harrisburg, PA 17110 Judge DAVID C. SHOVER Plaintiff Vo MICHELE R. MIELE Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA. : NO. 01 - 6098 CIVIL : CIVIL ACTION - LAW : CUSTODY ?RAECIPE TO ENTER APPEAR3%NCE AND PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Joan Carey, Esquire as the attorney for Defendant, Michele R. Miele and withdraw the appearance of James W. Abraham, Esquire as attorney for said Defendant in the above-captioned action. Respectfully submitted: 8 Irvlne Row ~ Carlisle, PA 17013 (717) 243-9400 Respectfully submitted: James W. Abraham, Esquire 513 North Second St. Harrisburg, PA 17101 (717) 232-7825 DATE: DAVID SHOVER, Plaintiff VS. MICHELE MIELE, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-6098 CIVIL TERM : PROTECTION FROM ABUSE AND CUSTODY PRAECIPE TO PROCEED IN FORMA PAUPERIS To the Prothonotary: Kindly allow Michele Miele, Defendant, to proceed in forma pauperis: I, Joan Carey, attorney for the party proceeding in forma pauperis, certify that I believe the party is unable to pay the costs and that I am providing free legal service to the party. JoVan Carey,~~ Attorney for Defendant MIl)PENN LEGAL SERVICES 8 Irvine Row Carlisle, PA 17013 DAVID C. SHOVER, Plaintiff VS. MICHELE R. MIELE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : 01-6098 CIVIL : CIVIL ACTION - LAW : : IN CUSTODY ORDER AND NOW, this Z ¥ ' day of May, 2002, cominued hearing in the above captioned matter is set for Thursday, August 22, 2002, at 9:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Leroy Smigel, Esquire For the Plaintiff Joan Carey, Esquire For the Defendant K/~A. Hess, J. 5-).7 :rim DAVID C. SHOVER, Plaintiff Vo MICHELE R. MIELE, Defendant IN THE COURT OF COMMON PLEAS OF : CUMBERLd~D COUNTY, PENNSYLVg2~'IA : CIVIL ACTION - LAW : : 01-6098 CIVIL TERM : : IN CUSTODY IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE KEVIN A. HESS, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Thursday, May 23, 2002, in Courtroom Number 4. APPEARANCES: LEROY SMIGEL, Esquire For the Plaintiff JOAN CAREY, Esquire Mid Penn Legal Services For the Defendant FOR THE PLAINTIFF David C. Shover FOR THE DEFENDANT Joy Grant Michele R. Miele CHILDREN IN CHAMBERS Jonathan Lauren INDEX TO WITNESSES~ DIRECT CROSS REDIRECT 4 38 59 61 67 72 74 131 177, 191 192-208 208-217 RECROSS 189 INDEX TO EXHIBITS FOR THE PLAINTIFF MARKED Ex. No. 1 - transcript of proceedings - October 5, 2001 protection from abuse hearing Ex. No. 2 - e-mail Ex. No. 3 - interim court order Ex. No. 4 - certificate of completion for seminar for separating parents 12 Ex. No. 5 - attendance report for Jonathan 15 Ex. No. 6 - e-mail 17 Ex. No. 7 - summary of Lauren's report cards 19 Ex. No. 8 - summary of Jonathan's report cards 22 Ex. No. 9 - e-mail 28 Ex. No. 10 insurance copy for doctor visit 30 Ex. No. 11 Jake Thiessen, PhD summary of contacts 109 Ex. No. 12 - note from Lauren's teacher 151 FOR THE DEFENDANT Ex. No. 1 - certificate of completion for seminar for separating parents 103 Ex. No. 2 - note from pediatrician 118 Ex. Nos. 3-4 - e-mails 122 & 177 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. CAREY: THE COURT: MR. SMIGEL: Good morning, Your Honor. Good morning. If it please the Court, I would like to call David Shover to the stand. Whereupon, DAVID C. SHOVER, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. SMIGEL: Q name? A Q Mr. Shover, would you please state your full David Clyde Shover. Now, just to clarify this. I know that recently there have been newspaper coverage about Shovers in this county. Are you related in any way to the Shovers recently that have been sentenced -- A They are not related to our family, no. Q Not related? A No. Q If you had a name like mine, there would be no problem. Mr. Shover, did you testify before this Court in a Protection from Abuse Act hearing on October 5th of 20017 A Yes, I did. (Whereupon, Plaintiff's Exhibit No. 1 was marked for identification.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q If it please the Court, I have a transcript of that proceeding marked as Exhibit 1. I am handing a copy for counsel, which I would like to have marked and admitted and incorporated into the testimony today. THE COURT: All right. BY MR. SMIGEL: Q Mr. Shover, at that hearing I believe that it would be fair to say that your chief complaint was that your former wife was not obeying any boundaries and continuing to call and come to the house without reservation, even after you requested that she not, even after you had written that, even after you had the police speak to her, and even after district justice involvement, is that right? A Q since then? A Q That's correct. Has that behavior improved significantly No. Now, after the PFA was denied, and you say the behavior continued, could you give the Court just one incident that would typify her behavior after that? A There was an incident where my son Jonathan was at the library. I believe he was working on a school project. My home is very close to the library. And I don't think he had all the materials he needed. He showed 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 up at my house and came in. And I believe he said he needed a notebook or something like that. So I permitted him to call his mother. And he wanted to know if she could bring it over, and I said, well, you know, we have a couple options here. But she is not supposed to come to the house. So I offered a couple options, one of which was I can run you back to the library down the road, and mom can pick you up there. Or you can go to your friends', which is very close, and she can pick you up there. Or my daughter had a basketball game in approximately a half an hour -- Q From that time -- A From the time he showed up at the house. I knew that Michele was going to be there. And my daughter and all of us were going to be at the game. So I offered, let her know we will just take you to the game. And we will just all meet up there. So I suggested these couple options on the phone. And I could hear her yelling on the phone from where I was standing, no, the PFA was denied, I am coming right over. Q And did she? A She was there within five minutes. Q Now, what did you observe about your son's demeanor when this was going on? A He very much did not want her to come, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because he knew she wasn't supposed to. And he was upset, which is the reason that I offered all the options. I said, I understand, I said, you know, let's see what we can do here to work this out. I know you need your book and this and that. But he was very stressed, and he was upset, because he did not want her to come over. Q Okay. And you would have all been together at the basketball game within a half hour anyway? A Exactly. Q The Judge at this past hearing, and the transcript will speak for itself, suggested that maybe the two of you could communicate by e-mail. that? A Q Do you recall Yes. After that hearing and the suggestion was made by this Court, did you attempt to communicate by e-mail with your former wife? A Yes. Q Were you able to do that? A For a while, yes. Q And then what happened? A All of a sudden I got e-mail from her one day stating that the Judge just made a suggestion. No one ever told me that I have to do this. And I am no longer going to communicate by e-mail. If you want to talk to me, 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you call me. MR. SMIGEL: to the Court if I may. BY MR. SMIGEL: Q (Whereupon, Plaintiff's Exhibit No. 2 was marked for identification.) Now, I am going to hand this up I am going to show you a copy of the e-mail Q communication. A off. Q which is marked as Exhibit 2. A copy has been given to counsel. And I have circled a paragraph in the center, and it has a reference there. Would you just read that portion of the e-mail for me, please? A If you have a response to this e-mail, you can again contact your lawyer as you already have. In regard to your statement about the October 5th hearing, there was never an order to communicate by e-mail, only a suggestion. I prefer not to communicate via e-mail any longer. There is no reason, and never has been, why we cannot manage to communicate by phone about our children and their immediate needs. Okay. So you got this e-mail, that was your And then she cut off the e-mail? I believe it was the next day e-mail was cut Okay. Then after that did you have occasion to attend a conciliation, a custody conciliation before 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Melissa Greevy? A Yes. That was December 17. Q Now, there at that conciliation were all of us able to discuss the communication problem and convince your former wife to put the e-mail back in service? A Yes. Q And from that time were you able to communicate by e-mail with her? A Yes. (Whereupon, Plaintiff's Exhibit No. 3 was marked for identification.) Q So the conciliation did then get that back in. At this conciliation there is an order here which I have marked as Exhibit 3. I will hand that up to the Court. Did you discuss in addition to the e-mail counseling? A Yes. Q The order in number five says father shall participate in counseling services. And I must confess even on the record that I just missed that. But when we were at the conciliation had you already been counseling with your children? A I had had the children in counseling since August of 2001. Q Okay. And why did you take them to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 counseling? Why did you feel that it was necessary to take them to counseling? A I could tell that there was some emotional issues there that the children were suffering from. Q All right. Who was your counselor? A Jake Thiessen. Q Did you at this conciliation attempt to include your former wife in the counseling process for the children? A Yeah. On two occasions. In the letter in August I gave her his name and number after she requested that I find a counselor. And then again I presented the same letter at the December 17th hearing with his name and phone number. Q Now, when you talked about getting together with your former wife, you and the children, at a group session with the counselor, Dr. Thiessen, did you offer to pay for that session? A If we all went together, I was willing to pay for that session. Q Okay. Now, did your wife go to the session? A No. Q Do you know whether or not Dr. Thiessen actually communicated with your former wife and asked her to participate in this -- 10 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A He has several times asked her to participate. Q Did there come a point in time when Dr. Thiessen's counseling with the children and you came to a standstill because of something missing? A About the month of March he said that we have accomplished about what we are able to accomplish without their mother being involved. And it was after then that I suggested that he call her another time, which he did. But she did not return that call. Q Was there a graded fee schedule offered to her also to participate? A A modified schedule he offered, yes. Q Is it your opinion, sir, that the counseling with your former wife and you and the children would be beneficial to them? A I think it would be very beneficial to them. Q was that something that you discussed at the conciliation at length? A Yes. Q Now, unfortunately the order says father shall participate in counseling services provided by Jake Thiessen, PhD, but you had already been participating with him? A Yes. 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q was this order just a mistake? A It was a mistake. A~nd we contacted her and she clarified that. Q You contacted Melissa Greev¥? A My attorneys did. And she clarified that it was a typographical mistake. Q My question to you, sir, was there any question at all that at the conciliation your former wife was advised by the conciliator, you, me, and her counsel, that she should participate in this family counseling? A Yes. I was asked to give them the name and number of the counselor. (Whereupon, Plaintiff's Exhibit No. 4 was marked for identification.) Q Now, in addition to that requirement under the interim order, or at least a discussion under the interim order, were you both required to go to parenting classes? A Q A Q A Yes. And did you in fact go? Yes, I did. When did you go? I went to the first class that was offered after the conciliation, which was the third week in January. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q The third week in January of 2002? 2002. And did you successfully complete that? Yes. Do you know as of recently whether or not your former wife attended that parenting class? A I don't believe that she has. Q I will represent to you that her counsel has indicated she has, but were you aware of that? A No. Q Now, what is your occupation again? A School teacher. You are a school teacher at what school? Camp Hill Middle School/High School. Do your children attend that same school Q district? A They are in the same school district, yes. My daughter is at the elementary school. Jonathan is in the same school that you are Q in? A Q Yes. Has there come a time in your parenting that you have become concerned over Jonathan's school performance? A Yes. 13 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Let's talk about attendance for example. Would you explain to the Court what if any problem Jonathan experiences with attendance at school? A He has a lot of both excused and unexcused tardies and absences. During the last school year he had nine unexcused tardies. This year that's increased to thirteen unexcused tardies. Q Has this been a pattern for Jonathan to be late for school, and to be absent from school unexcused, and to be absent from school excused? A It goes back as far as November 2000. There were several times during that school year when I was leaving my apartment and the children would phone me and say would you please come bring us to school because mom So I would go by and pick them up and take didn't wake up. them to school. Q BY MR. SMIGEL: Q Now, when you -- MS. CAREY: Objection. It is hearsay. The children said that? THE COURT: I freely allow the children to be quoted by both parents. MS. CAREY: BY MR. SMIGEL: Q Thank you, Your Honor. So the children would call you from mom's 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 home right before school, and say please come get us because mom didn't get up? A Just as I was leaving for school, yes. Q Now, was mom working at the time? A No. Q Is mom working now? A No. Q How long has mom not been working? A Over a period of eighteen months I believe she has worked about three of the last eighteen. Q Now, I am going to show you what's been marked as Exhibit 5. MR. SMIGEL: Your Honor, this is an exhibit which, and I have my own, which is highlighted, but I could give you the highlighted version if it would be instructive while we are talking about it. It is just easier to find, or I will just give you the other one. THE COURT: I will try to follow along. MR. SMIGEL: The plain one is fine. All right. BY MR. SMIGEL: Q Exhibit 5. (Whereupon, Plaintiff's Exhibit No. 5 was marked for identification.) Let me show you what I have just marked as Could you tell the Court what that is? 15 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A What it is I had the school run an attendance sheet from the beginning of the school year this year up until April 25th is when they ran this sheet. And at that point page two has a summary on him. He was absent twelve days of school. And he had unexcused thirteen tardies at that point. Q Thirteen. Let me ask you about the excused tardies first. Let's start with that. Did you, during the course of your review of this problem, find any situations in which your children were becoming involved in these excuses or making up excuses? A Yes, I did. Q Could you tell the Judge what that was -- A There was one instance, and it was actually brought to my attention by the attendance person -- MS. CAREY: Objection. That's hearsay. THE COURT: That's hearsay. THE WITNESS: Okay. There was one instance where Jonathan was brought to school tardy. And he had a signed note from his mother that he was feeling ill. The same day I received an e-mail from my daughter's teacher later in the day about her school progress. But in the e-mail he commented that she came to school a half hour late, which would have been right about -- three minutes later, which is normally how they are dropped off. And in 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the e-mail he said that she related to him that the alarm clock didn't go off. BY MR. SMIGEL: Q Okay. So the point here is that your ex-wife tells one child to put in an excuse, which is obviously not correct, and then the other child who is late also has a different story to tell a different teacher? A Q A That's how I interpreted that. What was that person's name, Randy Hoffman? That's my daughter's fifth grade teacher. (Whereupon, Plaintiff's Exhibit No. 6 was marked for identification.) Q I am going to offer up Exhibit 6 and show you what's been marked as Exhibit 6. Is this an e-mail from your former wife -- well, you tell what it is. What is No. 6? A e-mail that she had sent to my daughter's two teachers. They co-teach. And in response he is talking here about her progress, poor progress. She has about a sixty-seven average. But there is a sentence there, which is underlined, stating she came in thirty minutes late today saying that the alarm did not go off. Now, this is the same day that Jonathan brought the excuse in saying he was No. 6 is an e-mail. It is a response to an 17 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not feelinH well. Q Okay. Has this, I will call it a pattern of absences, whether they are excused or unexcused, become of concern to you? A Yes. Both the children have received notices from the district because of the number of absences that they have, that they are both now required to show a doctor's excuse from this point on in the year in order to miss any school. Q Okay. If the children were in your custody, would that problem occur? A No. None of those unexcused absences have occurred on a day when I have the children. Q Let me make sure that I understand what you are sayinH. All of the unexcused absences and all of the tardies and unexcused tardies occurred when they were in your former wife's custody? A Yes, everyone. Q That's your statement? A Yes. Q Now, when the children do attend, from your understandinH and your review and discussion with their teachers and counselors, are they prepared for the day? A No. Q Has their homework been done Henerally? 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A they tired? A Not on the whole. And what is their general demeanor? Are They seem tired at school. Several of the teachers have commented that. MS. CAREY: Objection. Hearsay. THE COURT: Okay. It is hearsay. THE WITNESS: Several of the report cards have comments which say, you know, things to that nature. MR. SMIGEL: Well, Your Honor -- THE COURT: There seems to be a recognized report card exception to the hearsay rule. And the other observation that I have is if we had to do this in every custody case we would have to have eight teachers. And I just don't know how otherwise we get around it. I am going to allow information that is related to both parents from the school to come into this case. noted. BY MR. SMIGEL: Q And your exception is MR. SMIGEL: Thank you, Your Honor. (Whereupon, Plaintiff's Exhibit No. 7 was marked for identification.) Let me just show you what we have marked here as Exhibit 7. We will start with Lauren. And copies for counsel. This is Exhibit No. 7. And it is a packet of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 information that contains I believe Lauren's report cards, is that right? A Q A Q A Q important here. What I did -- Is that right? Yes. It is a summation of the report cards. D~nd on the front -- And notices from teachers -- Let me ask you the question so that I sound I just want to clear for the record what we are putting in as Exhibit 7. It is a packet of report cards, and on the front page is a summary, correct? is? A Yes. Who did the summary? I did this. Now, explain to the Court what the summary A I took the last three years, grade three, four, five, for Lauren, and took each quarter's average and averaged them together for a final average, so that we can see how the average has decreased. Her current average right now is in the seventies. I only have an eighty-one because I didn't know what her current average was. And then what I did is -- all the report cards which are in this packet, which have comments on them, I just summarized those comments of the teachers. 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And what are the comments that are of concern to you? A Assignments incomplete. Teacher describes Lauren as being tired and appearing not to get enough rest. Her teacher does not feel that she is studying at home. Her work was not completed properly. Her current grade is a sixty-four, which is failing. Lauren has not done her spelling homework for the past two weeks, an incomplete for work assignments. That was a progress report which I just received on May 2nd. Q Now, this goes back three years? A Yes. Q Have you seen a pattern developing which has given you concern? A It has been a constant decline. Lauren's grades have gone down considerably in the past three years, almost a twenty point drop. Q What is her present situation? A Her present situation -- I have been keeping in touch with the teachers, is an average, it's in the seventies at this point, at least in the math and science areas. Q examinations? A Has she recently performed poorly on her Yes. She just got a test back in fact 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yesterday that she failed. I believe it was about a fifty-seven percent. Q Right. I have that here, but I don't think we have to clog the record. If the Judge is interested in it, I can show this. A When the teacher gave it to me, he described that there was a study guide for the test, which contained all the test material that she had to prepare for that test. Q Okay. Would it be better in your opinion for Lauren as far as her schooling is concerned, both in attendance, and in her grades, if she were in your primary care? A Yes. I believe that. (Whereupon, Plaintiff's Exhibit No. 8 was marked for identification.) Q I am going to show you now what's been marked as Exhibit 8 for identification. And after handing a copy to counsel I will ask the Court to just look at this. Now, I am showing you what's been marked as Exhibit 8 for identification. And, again, for the record, this is a summary on the first page that you prepared? A Yes. I prepared this. Q And attached to that are the actual letters 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and report cards? Some e-mails included as well. Now, would you explain to the Judge what the A summary shows? A What I did is the same thing. The past three years for Jonathan would be grade five through seven. And I took his averages throughout the year and sort of summarized those. I included all the comments that any teachers had put either on the report cards or progress records that were sent home. Q Does it show a trend? A Yes. In both the amount of tardies and absences and grades, it shows a negative trend. He has far more comments this school year from teachers about being unprepared, low test grades. And it is the first year that he has failed -- or had a failing grade at one point in several of his subjects. Q Are you concerned that if something isn't done to reverse this trend that it might be harmful to him later in life? A Q I am very concerned. Okay. Do you believe, sir, that a change in the primary custody, particularly during school time would be beneficial for Jonathan? A Yes. 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Would you see that he got the proper rest? Yes, I would. And would you also see that he got the proper attention with regard to his homework? Yes. I assume that you would make sure that he A wasn't late? A Q Exactly. Did there come a time during your interaction with your former wife concerning Jonathan's summer school schedule that gave you some concern over her ability to adequately parent him in the education area? A She called me one night. I was actually in a video store. It was on my cell phone. She was very upset. I could hear Jonathan hollering in the background. The basic gist of the call was, you know, when are you going to get counseling for Jonathan. He needs counseling. This is out of control and is something going to be done. This was in August. And it was at that point when I typed the letter that I sent to her with the counselor's name. I said I do have a counselor that I am taking Jonathan to. I gave her Dr. Thiessen's name and phone number. It was the week after that. So it was approximately the third week in August when I sent her the 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 letter. Then that was the same letter that re-presented aHain at the conciliation hearinH. Q Did you then take the responsibility durinH the summer for Jonathan and Lauren to do the work they needed to be prepared for the next grade? A Yes. Q Did your former wife in any way deal with that? A She handed me a bunch of information at the end of last school year, the beginning of the summer, with the comment that, here, you take care of this. I don't know what all this is. And I sorted through all that information. And what it included was some thinHs to fill out before the school year started, but also a major project that he had to work on over the summer months. Q Are you satisfied with the supervision that your former wife gives the children when they are in her care and custody? A No. Q Does Jonathan have free access to the Internet without any supervision? A Yes, he does. Has that created any problems? Yes. Could you tell the Court succinctly what 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 occurred as a result of that? A There was an instance when one of Jonathan's teachers sent him to me actually with a document in his hand. And I asked him what's this all about. He said that Mr. Jones told me I am supposed to bring this to you. And when I looked at it I said what is this. And he said I was caught passing this with a friend in study hall. And I said, well, where did you get this. And he said, well, I copied it on the Internet at mom's house. What it was was a document entitled sixty things not to say to a naked guy. They were all jokes about a man's penis. I called the teacher. He said normally I wouldn't give him suspension for this, but knowing that you worked in the district, I decided to send him to you and let you handle it. Q What did you do? A As a punishment I made him sit down and write what he did and why it was wrong. And he was grounded I think for a period of five days at my house. Q In your discussions with him did you ever determine where he got access to this on the Internet? A I asked him where he copied it. He said off of some joke site. I don't remember the site. I said, well, was that at mom's house. And doesn't she regulate this. And he said, well, she never asks me what I am 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 looking at. Q Was there an occasion when at your house he was playing a video game which he got with his mother's assistance? A It was a few months ago. Jonathan came to my wife and I saying that one of the things he wanted for Christmas this year was a video game entitled Grand Theft Auto III. So we questioned a few store clerks about the game. All of them gave us the same answer, that it was youth restricted. That they would never allow their Own children to rent that game. ban the game. There was even a movement to The basic gist of the game is that you are a criminal. And during the game you murder police officers and you patronize prostitutes. So it was a Saturday evening and I was walking downstairs in my house, and I saw him playing a video game. And I questioned him and asked him what the game was. And he said it is Grand Theft Auto III. And I immediately had him turn it off. And I said where did you get that. And he says, well, mom rented it for me at Blockbuster. When I put it back in -- Q Excuse me. Is that a film or video that you must be eighteen years of age or over to sign out? A I don't think it says eighteen. But there was clearly on the case when I put it away, there was a 27 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sticker that said youth restricted. It was an orange sticker with a blue thing around it. And I immediately took it from him. And I returned it to the video store the very next day on my way to church and told him that he was not allowed to play it in my home. Q Have you communicated with your wife about your concern over her inadequate supervision of the Internet and the video games and that kind of thing? A Yes. I typed her an e-mail right away and explained to her -- Jonathan had said to me, now you owe mom $5.00. And I said what do you mean. He says because she rented this game. And I said, well, I will type an e-mail and explain to your mother why I took it back and why I felt it was inappropriate. (Whereupon, Plaintiff's Exhibit No. 9 was marked for identification.) Q I am showing you what I have marked as Exhibit 9 for identification. It appears to be a copy of an e-mail from you to your former wife. Is this one of the communications that you are referring to -- A Yes. This was the next day. And I was explaining why I felt it was inappropriate and why I took it back. Q Did your former wife ever say anything to 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you, like I understand, and it won't happen again, or explain it or anything else? A She never responded to that e-mail. Q Has your wife's supervision with regard to the health care of the children given you any cause to be concerned recently? A I believe the question is my ex-wife, sir. Q I am sorry. Ex-wife. That's the first time I made that mistake? A I have been concerned over a period of time, but one such instance that concerned me the most was just recently in April. My daughter came to me on the night that I had her from school, and she had a very, very severe cough. I asked her about it. She told me that she had it all week. And this was a week where she had just had five days in my ex-wife's custody. I gave her some over-the-counter medicine that I had in the house. But she was awake the entire night coughing violently. So the next morning I took her to the pediatrician first thing on a Saturday morning. A~d she was examined. And the diagnosis having acute bronchitis. When I asked the doctor what that meant, she said it is very serious. ago. And she should have been brought in days MS. CAREY: I am going to object that that's 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hearsay, Your Honor. (Whereupon, Plaintiff's Exhibit No. 10 was marked for identification.) BY MR. SMIGEL: Q I am showing you what's now been marked as Exhibit 10, which appears to be an insurance copy of a bill from Jones, Daly, Coldren & Associates. Can you identify it, please? A This was the bill I got the day that I took her to the doctor. And they have marked that it was acute bronchitis. Q Are you concerned, sir, that the children are not getting the correct parenting, both in education, in health, and in their moral upbringing? A Yes, I am. Q Have you in your efforts to resolve these conflicts with your former wife attempted to seek counseling, to talk with her and to talk with the children? A Yes. Q Has any of that been successful? A No. The counseling with me and the children has been very successful. But we have not been successful -- Q If she won't participate, there is not much you can do past that? 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A He pretty much said we are at the point where she needs to be involved. MR. SMIGEL: Your Honor, I have here a summary of the contacts from Dr. Thiessen. Counsel has told me in advance that she wouldn't stipulate to this. is a summary. I am not offering it for the truth of the matter, only to show why he has taken the steps that he has. It It states basically most of the things that we have talked about here. But it is documentation to show that he has had these counseling efforts. And that they are basically at a standstill because of the former wife's refusal -- THE COURT: This is a production from your client? MR. SMIGEL: No. Not from him. It is Dr. Thiessen's summary of contacts. THE COURT: Dr. Thiessen is telling me what the summaries of the contacts are? MR. SMIGEL: THE COURT: MS. CAREY: Yes. Do you object to that? Yes, Your Honor. I said that I will call him with Dr. Thiessen, because I did have a conversation with Dr. Thiessen. And, you know, this is part of the story, and it lacks some of his recommendation. 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And so I said why don't you call him, so that's why I objected to this just by itself -- MR. SMIGEL: I don't mind if it is supplemented at a later time. But I think for purposes of this -- if she wants to call him and supplement it, I don't mind doing that. We can take his deposition later if you want to do that. But this I think is relevant because it talks about some issues that we are talking about today as far as mother's understanding of her requirement to attend counseling. And it talks about his efforts to deal with these issues over a period of time. hearsay? THE COURT: MS. CAREY: THE COURT: exception that's involved. the objection. MR. SMIGEL: BY MR. SMIGEL: Q And you are objecting to it as Yes. Okay. I don't know of any So I am constrained to sustain Understood, Your Honor. From your understanding after speaking with your children, are they given information about the custody and the PFA and any other litigation involved in this matter? A Yes. They have both told me that on numerous occasions that they have read court documents. 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 They have been shown letters, which state that mom won the case. They knew the date of this hearing. They started talking about the 23rd, and said, oh, okay, I guess you know we have a hearing coming up. So they have discussed a lot of those issues. Q Do you believe that that's appropriate? A No. At the conciliation it was made very clear that we should not discuss any of the court proceedings or documents with the children. Q That was made clear to everybody? A Everyone. Q And particularly it was addressed to your former wife, is that right? A Yes, it was. Q Knowing that, has she continued to still provide all of the detailed information about all the litigation to the children? A Yes. MS. CAREY: Objection, as to even foundation as to how he even knows that. BY MR. SMIGEL: Q A How do you know that? From what the children tell me. They come right out and tell me we saw the documents. We saw that the Judge said that the PFA was denied. We saw this. 33 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And how did they say they saw it? A Their mom showed it to them. My son also comments that he -- he made a comment this week about an e-mail that I sent his mother. And I questioned him, I said, how do you even know that. And he said, well, I read mom's e-mails. I can read them on the computer. I don't know that she showed them to him, but he obviously has easy access to it. Q Have the children expressed to you a fear about the outcome of the custody case? A On one instance we had a week where the children were very poorly behaved, not in the sense of being bad, but being in the sense of them being disrespectful and very short. And it got to the point -- it culminated in a church service on a Sunday morning where their behavior was very out of control. And I punished them that day. I had them each sit down for about two hours to cool off. And then we had a family meeting. My wife and I and the two kids. And I sat them down, and I said, okay, this is it. What's going on. Why all of a sudden. And at the conclusion of that meeting what was said to me, quote, by the children, was that mom told us that you are going to take us away from her and we will never see her again. So I spent about the next hour explaining to 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them that I would never take them away from their mother, they need to have time with me as well as her. That the hearing coming up had nothing to do with taking you away from your mother. I would never do that. And from that point on things have been a lot better. Once we got past that point, I think they had been -- they had that as an understanding in their mind. Q Am I correct in saying that some of the work that you are doing with Dr. Thiessen is for the purpose of supporting the children's relationship with their mother? A Yes. Very much. Q And are you also trying to establish a structured relationship with the children when they are with you? A Yes. Q Do you have a suggestion as to how the custody arrangements should be changed to make it better for the children? A What I think would be -- Q Before you answer. MR. SMIGEL: Are you interested in hearing that? THE COURT: Absolutely. From both sides. MR. SMIGEL: Yes, sir. THE WITNESS: What I would propose would be 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that I have the children during the school week so that I could consistently keep up with their school work, with their attendance, seeing that they are on time, helping them with their school things, and allowing her to have the children on the weekends. I would only ask for one weekend a month. That way I could consistently keep them alert and at school on time. Have a little more consistency. A lot of back and forth has been hard on the kids. And I just think that would be a better situation. BY MR. SMIGEL: Q Would you be willing to be flexible in a schedule if need be with your former wife? A Yes. Q In the summertime what's your arrangement? Now what is the prearrangement if you could explain? A The prearrangement right now I have the children every Tuesday from after school to the return of school on Wednesday. I have the children every other weekend from after school Friday until the return of school on Monday. And then the weeks that I do not have the weekend I have the children Tuesday and Thursday. It is approximately thirteen to fourteen days a month that I have the kids now, but it is very broken up. Over the summer we have three weeks of uninterrupted vacation time with the children. Last summer 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 my ex-wife was working. The children came to me everyday during the workday. Then she picked them up after work last summer. This summer I am assuming the schedule will remain the same, at least at this point since she is not working. Q Are you still willing to share legal custody? You will still make sure she is kept aware of their grades in school and progress and problems? A Yes. There have been earlier instances I immediately forwarded them onto her to be sure she knew what was happening. Q Have you considered what the arrangement would be during the summer? Would it still be everyday during the week and just having one weekend? A I think that would be best. There is basically about eight weeks of time in the summer. It is six weeks, three they are with her. Three they are with me now. There would only be another two weeks in there. And I would just think it would be best to continue the Monday to Friday to make it more consistent for the children. Q Just one last area of questioning if you don't mind. Would you make sure, if you were given primary custody, that the children would continue to have access to their mother? A Yes. 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q That has not been, if it is fair to say, your experience with her having primary custody? A No. Q Would you make sure that that would not occur to her as it has to you? A Right. I never interrupt her time with the children, and make it very clear to them that they need to have time with their mother as well. MR. SMIGEL: Thank you. No other questions. CROSS-EXAMINATION BY MS. CAREY: Q Mr. Shover, while I have these report cards right in front of me, let me start there. You mentioned concern in the report cards about the children. And you summarized, if I am clear here, you summarized, but you included in the comment section two negative comments for Jonathan. One in phys-ed unprepared for class, and one in pre-Algebra low test project scores, right? yes. A I think there were more than those two, but, Q A that's what it says -- MR. SMIGEL: will have that. But those are the two that you put in here? I don't have it in front of me, but if Let me give it to him so he 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 seven now? BY MS. CAREY: Q A THE WITNESS: Are you talking about grade Is that what we are looking at? I am talking about grade seven, yes. Yes. They were actual grades on report cards, that's correct. Q Ail right. I am looking at I think his seventh grade report card at this point. It says the pre-Algebra shows improvement. And he greatly improved in Algebra from seventy-nine to eighty-eight, isn't that correct? A in, yes. There are a few classes that he has improved Q comment for one of his classes. A Which class is that? Q Latin class? A Yes. Q Eighty-nine in that. would agree I presume? A That was a quarterly class. earlier in the year, yes. And then conscientious effort is another He is doing well. You He had that Life science, positive effort, shows Went from seventy-three to eighty-five? Yes, he did. Q improvement. A 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q English, conscientious effort, up a few points, from eighty-four to eighty-seven -- oh, excuse me, that was in the first to the second quarter there was an improvement there. I am also looking at something that says that -- a comment from you that said he wastes time in class? A I am the chorus director. That particular marking period I think there were between thirty-five to forty students that got that same comment on the report card, one of which was my son. And I told him, I said, just because you are my son doesn't mean that you are not going to get that comment. And he was involved with just some fooling around in class. It didn't affect his grade. But I wanted the comment to be made to all of the parents. Q So you weren't able to control him in class? A No. That's not that at all. I control the class very well. It was just a comment that I put on for teachers. If students are marked for talking, that's all that was. There is a hundred twenty-seven students in that group, six through eight. climate can be at times. Q grade? A Q So you can imagine what the Okay. Lauren, she is currently in fifth Fifth grade currently, yes. Okay. I am looking at Lauren's fifth grade 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 report card from Mr. Hoffman. Mr. Hoffman in your testimony? A Q I believe you referred to That's her teacher, that's correct. I am looking at an eighty-three in reading. I am looking at an eighty-nine in spelling. Is that correct? A I am not sure which report card you are on. I am sure you are reading the right numbers though. Q I am reading 2001-2002 the third quarter? MR. SMIGEL: Why don't you just point it out to him? BY MS. CAREY: Q A correct. Q I will show you my copy. They were third quarter grades. You are And science went from a sixty-eight up to a ninety, correct? A In the third quarter. It is now currently about a sixty-eight again. It is a high sixty, low seventy, this quarter, which is the fourth quarter. Q You don't have any documentation of that, do you? A Just what the teacher shared with me yesterday. We have a letter from the teacher written yesterday if you would like me to show it to you. She has 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 failed four of her last five tests. Q Now, do you acknowledge that mom has been working with her? A I don't know if she has been working with her. I would hope that she does. Q It says that in the first marking period she was completing her homework assignments, and she just needed to participate a little more in class? A That was the comment from one teacher, yes. Q Right. A Throughout the report cards there is going to be several courses which at one time or another go up and down. My main concern is about the overall performance throughout the past three years. Q Okay. I presume you are noticing some stress in the children over the past several months? A Yes. Q It is fair to say also that they were stressed at the time of the PFA allegations, isn't that correct? A Q stressed? A Q I would say that they were, yes. And they have continued to be anxious and I have noticed improvement since counseling. Isn't it correct that the counselor, 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lauren's counselor, talked to you about their feelings? A Ms. Grant you are referring to? Q Yes. A Yes. I have talked with Ms. Grant on several occasions. Q And isn't it correct that she said to you the children don't feel as though they are loved in the discipline? A What she said to me was the children don't feel that they -- and this was also something that my other counselor shared, which I thought was significant, they don't feel that they can show love towards my new wife, because that would be taking away from their mother. Q Isn't it correct that you say to them if you don't love Carolyn, you don't love me? A I have never said that to the children. What I have said to the children is -- Q So if the children are saying that -- MR. SMIGEL: Excuse me. You are cutting him off. THE WITNESS: I have never told the children if you don't love Carolyn you don't love me. What I have said to the children is Carolyn is my wife, and I expect you to respect her. And if you disrespect a decision she makes, you are disrespecting me. That's what I have said 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to them. And I will always continue to say that. BY MS. CAREY: Q Now, let me talk about these absences. It is standard procedure that a letter goes out if there have been more than how many absences? A I would have to look at the letter. When a child receives so many absences, a letter goes out to both parents. I know Jonathan has received two. Lauren has received one this year. I have copies all in the packets here. Q Now, some of the absences that you talked about were excused, correct? A Yes. They have had a lot of excused absences this year. Q And some of them I would imagine you would have knowledge were because of the flu or illness? A They both had the flu this year, yes. Q And then I guess you kept them out when they had the bronchitis? A One day they have been out of school absent when I have had them in my custody, because they were still recovering from that. But the excused absences aren't a concern of mine. Q Now, some of these absences are a couple of seconds, like a couple of minutes, late, is that right? 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A That's correct. Q Okay. And some of them he comes in like at a couple hours after school starts, mom brings him in? A I don't know if there are any couple hours. I would have to go back and look at all the times. Q Okay. I am sorry. I misspoke. Not a couple hours, a couple minutes. So mom brings him in a couple minutes late, or he comes in a couple minutes late. We are not talking that he misses a whole day? A No. An unexcused tardy means you are not in homeroom when you are supposed to be there. It doesn't matter if it is thirty seconds or an hour. Q And I guess Jon could be there but dawdling getting to homeroom, correct? A Well, what I would feel if he dawdles getting to homeroom, then why doesn't he dawdle on the days that I drop him off? I am just saying he could be there and could Q be -- A I guess any student could dawdle, but that hasn't been what's been reported. A child is required to sign in the office when they are dropped off at school. So he has gone to the office. The times that are marked on those sheets is when he has gone to the office to actually sign in as being there late. 45 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Now, you said that you would be flexible with the mother when your attorney was asking you questions about the schedule at the end of your testimony? A Yes. Q What do you mean when you said flexible? A I have often been willing to be flexible. She e-mailed me a few months ago asking me if I would switch days with the kids. And I did that. Q Well, isn't it true at Thanksgiving time you wouldn't give her an extra day that she asked for? A No. That's not true. What happened at Thanksgiving -- Q An extra two hours? A No. What happened at Thanksgiving had nothing to do with not being flexible for a few days. That had to do with her misunderstanding of the actual marital settlement agreement. I don't know if we want to go into that whole issue. I will be glad to go into that instance. That was a very serious incident we had with the children. It was when -- Q I just want to focus on the fact didn't she ask for a couple of hours because she was having dinner and wanted just a couple more hours to finish up dinner before you got your Thanksgiving time? Isn't it correct that she did ask? 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A to church that night, because I had a special service. when she asked if she could have the children past that time, I said no, because I want them to be there for the service. That's the time you are referring to, yes. It was Wednesday night prior to Thanksgiving day. Q Isn't it true that there was an occasion, possibly two years ago, when you wouldn't let her switch days, to take the children to her mother's at Christmas-time? A Well, what seems to happen, we have the Christmas set up that one of us has Christmas with the kids one year, and the other one has Christmas Eve. And then we switch the next year. And when it comes up on the year when she doesn't have the kids for Christmas, she often wants to change the schedule. So she had had the children the year before for Christmas, and now it was my turn, she wanted to change the schedule. So I did say no. This was my year to have them. And I already had plans with my family with the children. Q This Christmas isn't it true that Michele offered you some more time with the children and that you refused? A What happened this year -- at conciliation that was a big issue, the Christmas vacation. And after I had already planned on taking the children So 47 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going over it about fifteen, twenty minutes, the conciliator finally decided let's just keep the schedule the way it is. So that's on the order of the conciliator there. Two days after the hearing I received an e-mail, and she wanted to change. The reason was she was offered a couple days of work. And, again, my flexibility is during the school year -- outside the vacation time. The vacation times are very set. They are very clearly set out. Q So she was trying to be flexible there because she had to -- A She wasn't trying to be flexible. She wanted me to have the kids on different days because she was offered two days of work. And I have an e-mail which shows that. I had already made plans with the children to do other activities. And that's why I could not change those days. And if you look at my response, it clearly says that I am not being inflexible here. I already have plans those days. I cannot change to the time you ask for. Q So you are saying that you will be flexible, and what you mean by flexible is only during the school year? A Well, the vacation times are very, very set by the contract. And we have stayed to those very 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 strictly, because one year you have them, one year you don't. So when my year comes up for the vacation, I have already made plans. I do like to have that time with the kids and not be flexible during vacation time. Q How about when the children forget some books at the house or forget their shoes, is there any flexibility with you? A Originally there was. As of the past year or so there has not been. And I think the record stands for itself from the first hearing as to why I haven't allowed the coming over and dropping off things at the house. I would love for that to be able to work. Q Didn't Joy Grant tell you that the children really are stressed because they don't have a key to the house or because they can't just get their belongings and go? A Joy Grant expressed to me that my son was upset because I would not give him a house key. And I looked right back to her and said that there was no way that I would give him a house key at this point. He was only twelve. And the only reason he would need a key would be to get in my home when we are not there. I couldn't see that. Q You lock the door though when he goes out to play? 49 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I may do it out of habit. I don't do it intentionally. Every time I go out of the house I lock the door. I sometimes lock myself out. But that's a habit. I do that all the time. Q What about to come over and pick up a book that they might need? A As I said before, I would like for that to be able to work. In the past it has not worked. And that's why the order of both the October 5th hearing and again at the conciliation hearing was that the mother would not come to the house, and the communication would be through e-mail. And I have made other options of dropping the book off somewhere near, the library. I have made other ways that that could happen. Q The mother has never really come into your house. I mean, basically she is there to drop off stuff? A She did try to enter our house at one time. And the record on the 5th hearing will show that. That was one of our main reasons for wanting to have a PFA. said -- Q Is that when she just leaned her head in and A are referring to? A That's not what happened. That's your interpretation of the story. -- he forgot something? Is that what you But that's the 50 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 instance I am referring to. Q Isn't it correct that the mother has always been involved with the children's medical care primarily? A Involved. I don't know what you mean by involved. Q She has taken the children for the medical treatment that they need? You have never talked to her about concerns regarding the medical care that she has provided for the children until now? A Only the fact that she asked me to pay for their medical expenses and pick up prescriptions and things like that. One e-mail she had told me that the children hadn't been to the eye doctor for three years, and that she had just taken them. But she doesn't communicate a lot with me about those type of, you know, medical, dental -- Q A time, yeah. summer. Things that she usually provides for, right? To my knowledge, they go to the dentist on Q Now, you talked about a project over the I presume that was last -- A Summer 2001, yes. Q 2001 summer. You had hi~ the last day of school, right? A Q I believe so. I don't remember. And isn't it true that mom called you during 51 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the summer and asked you about those papers, the project, and wanted you to give her the papers regarding the project? A Well, that was after they were given to me at the beginning of the year, saying, here, you deal with this. Q So then you wouldn't give them to her when she asked for them so she could work with him? A I don't remember or not. I don't remember the phone call. And I don't remember not giving them to her. I don't remember her asking me for those. Q Okay. You talked about flexibility. You took your home phone out, isn't that correct? A Yes, we do. We both have cell phones. I stopped using a home phone prior to the October 5th hearing mainly for two reasons. Verizon was on strike and didn't have one for six months. The other reason was it was less expensive for me to have a cell phone than a home phone. Q So if the children are at the home, do they have access to the cell phones in case of an emergency? A They have access to my cell phone whenever they ask. I also have a business phone in the basement, which is not to be used. But there is a telephone there. And the children are well aware that in the event of an emergency it may be used. 52 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q In terms of contacting their mother, they have to contact her -- there is an agreement that they can call her one time a day, right? A A suggestion by my ex-wife's attorney at conciliation was that they contact their mother one time prior to 8:00. And I allow them to call her every time they ask. Q You allow them to call. How did you interpret prior to 8:00? Don't they call her right at five of 8:00? A Sometimes they will wait until two minutes of 8:00 to make the call. And I will tell them -- I was forced a few months ago to put a time limit on the phone calls. And the reason I did that, until we get home from school, we have our after-school activities. We have dinner. Many times there is about a half an hour, forty-five minutes, time really left that we have to spend together before they get their showers and get ready for bed. The phone calls were going in excess of thirty-five, forty minutes, at a time. My ex-wife would be asking them every detail of the day, from what we did from the time we picked them up until what we had for dinner, where we were going, what are you doing now, what are you watching on television. And these phones calls -- 53 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q were you listening? A No. I don't have to listen. The kids will tell me this or I can hear it by their responses. They also tried several times, well, I have got to go now, mom. I have got to go now and aren't able to hang up the phone. So with suggestions from my attorney what I did is I established -- I asked my attorney what would be sensible. I asked Dr. Thiessen would it be sensible for me to just establish some parameters. And what I did is -- I allow them to call their mother every night. They ask almost every night they are at my home. And I always allow them to call. But I did set a time limit of five minutes each. They were with her the day before. They are with her the next day. And I felt that five minutes time for each child to talk to their mother to say hi was sufficient. But I never denied them the opportunity to call their mother unless it was after the 8:00 time. And that was made by her attorney at conciliation. That was his suggestion. Q And, of course, if there was an emergency? A There are several phones. There is my cellular phone, and my wife's cellular phone, and a phone in the basement in the house which may be used at anytime in the event of an emergency. Q You said that you noticed stress regarding 54 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the children that is continuing. You lock the doors in your house, right, the bedroom doors inside, so they have sections in your house where they have no access? A The only door that I lock in my house is my bedroom door, that is correct. Q And there is a whole section in the back where they can't -- A Well, it is a bedroom and a master bathroom. There is really no reason for them to have to go back there. Q How about the den? A The den is downstairs. I refinished my whole basement to make a room just for the kids with a television and computer and everything. The part of the house which is locked is the bedroom and the master bathroom and my wife's office. None of which are rooms where the children need to be. Also, I keep a lot of my information, such as this in that room, and I do not want the children to have access to that. Q Is that where you keep the snacks too? A Snacks. My wife provides snacks for the kids. Every week she has a snack bag with each kid's name on it. And they are filled at the beginning of every week. She is very religious about that. So there is always snacks for the kids in the closet in the pantry in the 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 kitchen. Q You said that you are willing to continue in counseling. Would you be willing to continue in counseling to learn to communicate with your wife, co-parenting counseling? A I would love nothing more than to be able to communicate with my ex-wife. Q Not just by e-mail, but to actually get to your feelings and get to the communication, and get to what's best for the kids? A I think that has been a goal of the counseling all along. And that is the main reason Dr. Thiessen has wanted her to participate. Q Now, if money is a problem, would you be willing to go to a counselor who has like a sliding scale fee? A counselors. Well, you know, we have jumped to so many I have a list of twelve counselors that we have seen over the past three years. I think Dr. Thiessen is very good. I would hate to move again. He has worked with each of the children individually. He has worked with myself. He is more than willing to work with my ex-wife. There have been other instances where I have agreed to go to the counselor that her and the children were seeing. Dr. Conti is a perfect example of that. We 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 went on two occasions, and then the counseling stopped. And this has been a pattern as soon as I get involved. You have left the counseling, isn't that Q correct? A Q What's that? You have called the counseling off in some cases, isn't that right? A I don't know what case you are referring to. Q You are saying you never just stopped counseling because you said it wasn't working? A No. I have never stopped counseling because I said it wasn't working. Q You said that the children are stressed and you gave a reason, but you really don't know why the children are stressed? A I think there are several reasons why the children are stressed. Q But a counselor has not really gotten to the bottom of why? A A lot of the issues have been addressed in counseling, yes. It could be because of the breakup of the Q two of you? A I think that affects any child. And that's one of the main reasons I started counseling with the 57 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 children. Q It could be because of a lack of free communication between the two of you? A That hasn't been an issue that's come up in counseling. Q Weren't you made aware of that by Joy Grant, that that is a concern of the children? A The what, the free communication between us? Q Yes. A She was not aware though of everything that had been transpired over the past six months. When I shared with her the October 5th hearing and the situations that have been incurring, of course, she had never heard any of that information. Then she greatly changed her reason for that. Q But the children were talking to her in the present, and they had the concerns in the present still -- again, please? BY MS. CAREY: Q MR. SMIGEL: THE COURT: THE WITNESS: Objection. Argumentative. Overruled. Would you say your question The children were talking to her in the present rather recently after the hearing, and they still had those feelings, didn't they? 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I would imagine the children would have feelings that we can't communicate as other divorced couples can. And I will say it again, I would love more than anything for the two of us to be able to have rational conversations over the telephone. able to occur. Q can't occur? A BY MR. SMIGEL: Q But that has not been And you take no responsibility for why it MS. CAREY: THE COURT: MR. SMIGEL: No. I do not. I have nothing else. Any redirect? A quick one to follow-up. REDIRECT EXAMINATION In the conversation about your present wife that was brought up by counsel, could you just tell the Court what you have observed about the relationship that your present wife Carolyn has with both children? A She is very supportive of my children. She helps both of them with their school work, specifically Jonathan with his math. She attends all of his ball games, all of Lauren's concerts. They really have a good relationship when they are with me. What has come about through counseling is their fear of showing love, because they feel that it takes away from their mother. And 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 apparently that's a common thing in this type of a situation. And that's one of the things that we have been working through. Q Your wife is a teacher also? A Yes, she is. Q And she is interested in helping them with their educational requirements as you are? A Very interested. Q Has she ever, at least to your observation, attempted to supplant herself as their mother? A Never. She has made it very clear that she is not their mother. And I have made it very clear that she is not their mother. I have repeatedly told them that. And I expect them to respect her as their stepmother. They call her by her first name. There has never been an attempt to replace their mother. Honor. down. MR. SMIGEL: THE COURT: MS. CAREY: THE COURT: I have no other questions, Your Anything on that issue? No, Your Honor. Thank you, sir. You can step This a good point at which to take a recess. And did you say you had a witness by telephone? MS. CAREY: At 11:00 she is going to be in 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 her office. there. usual way. Maybe I could call her and see if she can stay THE COURT: Well, set up the phone in the And you can establish contact with the person. And if you need to do it right now, I will just come back out. Just let me know how you make out. (Whereupon, a recess was taken.) AFTER RECESS MS. CAREY: Ms. Grant, this is Joan Carey. And we are in Judge Hess' courtroom. MS. GRANT: Yes, ma'am. THE COURT: Do you want to swear the witness? BY MS. CAREY: Q please? A Whereupon, JOY GRANT, having been duly sworn, testified as follows: DIRECT EXAMINATION Would you state your name for the record, My name is Mrs. Joy Grant, J-o-y, G-r-a-n-t. Elementary counselor for Camp Hill School District. Q counselor? A Lauren is in fifth grade. And you work primarily with Lauren as her Yeah. I have children K through five. And And I have her in guidance 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 class, as well as sometimes we do get a chance to talk privately. Q A this year. Q And you also have spoken and acted as a mediator really between the parents of the two children? And you have also talked with Jonathan? Yes. I did talk with Jonathan once earlier A Yes. The children had some concerns. And we talked about them. And then I spoke with Mr. David Shover and then talked with Lauren again after I had spoken with Mr. Shover. Can you summarize what the children's Q concerns were? A I think the message they wanted their dad to hear was -- they wanted to have a feeling of being listened to. I think that was a concern. Being in tune with what was going on with them, and to be listened to. They wanted I think access in the house. I think that was a concern they had. I think there are some places in the house they didn't feel free to go. And to have access to get into the house. If Jonathan, for instance, would forget a book or something, you know, and he needed that for study or for homework, they need to be able to pop over, and, you know, may I have my book and that kind of situation. They were a little bit uncomfortable 62 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 speaking about some of those issues. to them to be a go-between. and I delivered it to David. A~d I was agreeable They gave the message to me, And then he talked with me. I talked with Lauren. I don't believe I talked with Jonathan again a second time. Q Besides those issues with the father, were there any issues regardinH the environment of the house and Carolyn? A Well, I think the dynamics are just a challenge. When you have a blended family, it is a challenge. And there are some things that maybe they weren't comfortable speaking with Carolyn, David's new wife. They weren't comfortable speaking with her about it. You know, it was easier for them to say it to me and then let me say to David what their feelings were on that. I think when you express your feelings you just want to have a sense that you are being heard in that regard, if that makes sense to you. Q So you communicated, you said a go-between with the father. What was the father's reaction to what you were saying? A David is very receptive. He is a good listener. David has his own ideas on -- he loves his children very much. I mean, he told me that. He feels that, you know, there are some discipline that needs to be 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 engaged there. He had very clear reasons for the things that he is doing. I may not agree with them, and we agreed to disagree, I will put it that way. But, you know, I am not going to tell him how to parent. Just as I probably wouldn't appreciate him telling me how to parent. But we disagreed on some issues. But I just wanted to express their side of the story to him, you know, and then come back to them and talk with them about the situation. Q Did you explain to him how the children were being effected by -- how they were feeling I guess? A Well, that was what we talked about, that they didn't really feel -- well, I don't know if the word is love, but they just didn't feel comfortable with discussing some of those issues. And that's kind of a shame, because as David said to me, he loves his children very much. And they both love him. But it is just sad the adults aren't in agreement on how things are going to go. And the kids are caught in between so to say. Q What is their relationship like with their mother from what they were telling you? A I think emotionally they are more comfortable. This is their saying, you know, I am not trying to hurt anybody's feelings. I think emotionally they are much more comfortable with Michele than they are with David. That's my sense from what they had said to me. 64 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And did you talk to the parents about the communication issues that you just were discussing? You said the parents are not on the same page? A Yes. We did talk. And as I said to you earlier, Joan, it is a shame, but when you speak to both these individuals you would think you are talking about apples and Africa, because they are just not even close as far as the way they are seeing the situation. And that always makes me sad inside. Because the adults will approach -- this divorce situation is a mess as it is, but the adults need to kind of set the tune for how it is going to go. And the kids pick up on that. I mean, they see there. And right now they see their mom being the victim in this situation. And they see the dad being what you would call the big bully. That's the way they view this situation. And it is a shame. And I don't think it needs to be that way. As I said to them, all four of you should sit down in the same room and speak English so that you hear each other and try to work some of these things out so that you all come away hearing the same thing. Q One more area about the communication. When they are at his house, communication with mom, was that an issue the kids raised? A That was something that the kids did talk 65 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 about. They wanted to be able to call their mother if they needed to call her. And I believe as they were describing to me there is just the one telephone, I guess it is a cell phone. I guess each David and his wife Carolyn have a cell phone, but I don't think the kids have access to that. Well, unless they ask. So they were a little bit -- just didn't feel the communication was free, that they could call their mom whenever they wanted to if they needed to talk something out with her. Q And was David open to the suggestion that there might be more free -- A Once again, David has his reasons for doing what he is doing. And when you speak with him, he gives the reasons, and, you know, for him they are the way he wants it to be. And, you know, and that's okay. I mean, I can only explain my side of it. He explains his side. And that's the way he wants it to be. And, hey, that's his call. It is his house. I am just trying to explain to him how the kids are seeing that and how they are viewing that. And I think that's why they went to some counseling so that they could work on some of that together. I guess they have a counselor that's kind of like a mediator with them also. But, yeah, those issues were raised. And David has his reasons. And, you know, who am I to say, hey, you should do this, that, or the 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 other thing. I can only bring to him what the kids are saying to me. Q We understand. You are not testifying as the therapist, but just your knowledge of being a go-between here with this issue. MS. CAREY: Thank you very much. I have nothing else for this witness. THE COURT: Mr. Smigel. CROSS-EXAMINATION BY MR. SMIGEL: Q Ms. Grant, can you hear me? A Yes, I can, sir. Q Thank you. What is your education? A I received my undergraduate education from Glassboro State College. That's an elementary education. Which is now Rowan University. And received my Master's in Guidance and Counseling from Ohio State University. Q Okay. A And then have continued education from them. The chemical dependency certificate from Penn State, and other certificates from other areas. Nationally certified counselor. I achieved that status ten years ago. Q Great. Now, when did you have this conversation -- you had one conversation with Jonathan? A Right. 67 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q One. And when was that? A Oh, golly. I am not sure. I couldn't tell you what month it was. I don't remember what month it was. It was sometime the second half of the year. Q Last year? A No. This year. February, March or April, somewhere in there. Q So it could have been as early as February, right? A It could have been. I am not sure. I don't know when I talked with him. February, March or April, somewhere around there. Okay. And have you talked with him since Q then? A No. I left it open to Jon. I said, hey, Jon, I am sorry these things are going on. If there is something I can do to help you out, feel free to come back. And he has not taken up on that, and that's fine. So we talked the one time. Okay. And when is the last time you spoke Q to Lauren? A Oh, golly. I don't sit and talk with her. month ago. Q Well, I see Lauren each day, but That was probably about a Okay. Now, are you aware that both Lauren 68 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q and Jonathan are attending psychotherapy with Dr. Jake Thiessen? A I didn't know who it was with, but I know they were going to some counseling sessions with their dad and with the therapist, yes. Do you know Dr. Thiessen? No. I don't know him. Have you heard of him? No. I have not. Okay. Now, did you ever contact Dr. Thiessen to see how if you are counseling Lauren or Jonathan you might be able to be more effective? A Yeah. I did not contact him. I left that open to David, that he could, you know, hook us up if he thought that would be helpful. Q I think you mentioned that the parties had another counselor who acted as a mediator. Is that who you are referring to? A to, yes. Q counsel ing? A Yeah. The counselor that they were going Are you aware that mother will not go to Well, I am aware that he is not on her medical card, so that the price is a little bit much. that was what was told to me. And 69 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. A That she wanted to go to counseling, but couldn't afford that one. I am sure she has probably told you that. But she is willing I think to attend counseling sessions. I think that's important. And, again, that's an area where I guess they don't agree as parents on who they should go to see. Q If you heard that Mr. Shover offered to pay for the joint counseling session with all of the parties, including the children, like you suggested, they all get in a room and talk it out? A Yes. Q Would that be surprising to you, that Mrs. Shover, the former Mrs. Shover, refused to do that? A That would be disappointing if you take up an opportunity to talk some things out. Q Are you aware that the children have expressed other issues with Dr. Thiessen? No. I don't ask them what they talk with A him about. Q Okay. Are you aware that David has been going through this therapy with the children for more than a year since -- A I am not sure how many sessions they went to. David did talk a little bit about that. But I don't 70 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know how many sessions they have gone to. Q Would it surprise you to know that at these therapy sessions one of David's stated purposes was to support the children's relationship with their mother? A That's great. Q I said would that surprise you, ma'am? A No. I think that's wonderful. Q So that sounds consistent with what you know of David? A think they both want the best for their kids. just need to agree with each other. I think he wants the best for his kids. I I think they Q Were you aware that part of their counseling efforts was to allow the children to get acclimated to a loving but structured relationship, which they have with their father when he sets boundaries, but they don't have with their mother? A No. I am not aware of that. Q If you were made aware of that through the discussions with Dr. Thiessen, would that impact on any of your opinion? A Q Okay. MR. SMIGEL: other questions. I think that would be wonderful. Thank you, ma'am. I have no 71 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: You are welcome. THE COURT: Anything else, Ms. Carey? REDIRECT EXAMINATION BY MS. CAREY: Q When the attorney asked you if you would be surprised, you said you would be happy if that occurred. Is it consistent, however, with the father's response to you when you talk to him? A Regarding... Q Regarding his willingness and his relationship with the mother? His willingness to work with the mother? MR. SMIGEL: I am going to object to the question. following you. BY MS. CAREY: THE WITNESS: I am sorry. I am not What are you asking me? Q In your experience when you were talking with the father, was he willing at that time to work with you, work with the children, work with the mother? A He was willing to listen to what I had to say about the kids. The kids are the ones that kind of wanted to talk about this. So he was willing to listen to what they had to say. And then he gave me his side. A/~d then I talked with them. I wasn't a go-between between 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 David and Michele. MS. CAREY: THE COURT: MR. SMIGEL: Judge Hess. you. Okay. Anything else? No, sir. THE COURT: All right. Ms. Grant, this is Thank you very much. We will hang up now. THE WITNESS: You are welcome, sir. Thank THE COURT: I have a matter, a conciliator wants to speak with me on another custody matter. And I don't think you have had a break actually yourselves, have you? So let's take a recess so I can do that. We will go until ten after 12:00. And then I will be in recess until 1:15. (Whereupon, a recess was taken.) AFTER RECESS 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Michele Miele. BY MS. CAREY: Q name, please? A Q MR. SMIGEL: THE COURT: MS. CAREY: We have nothing further. Ms. Carey. Yes, Your Honor. We call Whereupon, MICHELE MIELE, having been duly sworn, testified as follows: DIRECT EXAMINATION Michele, state your name and spell your last Michele Renee Miele, M-i-e-l-e. And you are the mother of Lauren Shover and Jonathan Shover, correct? A Yes. Q And tell the Court since the separation who would be the primary care-giver for the children? A Myself. Q So you have had primary custody of them consistently since the separation? A Yes. Q What year was the separation? A '99. Q Prior to that, during the marriage, who was the primary care-giver? A Myself. 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q When you say primary care-giver, who provided for the medical care of the children during their whole life? A I took care of all of that. I was a stay-at-home mom with my children from the time they were born. Q After the separation you continued to provide for that? A Yes. Q How about the educational development of the children? A Yes. I have always been very involved in their education and their schooling. In fact, I even home schooled Jonathan for a year. We decided to do that. I was planning to continue, but Dave wanted us to stop. So I stopped. But I have been very involved in teaching and training them. Q And what's your education? A I have an Associates degree in Dietetics. And I am currently back in school now. Q And what are you studying? A I am going for psychology right now. I am at }{ACC taking some general ed classes. Q So at this point you have had how many classes? 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Two. I am in my second and third class. So you want to pursue that degree? Yes. Most definitely. So since the separation in '99 who went to the parent/teacher meetings? A I have always gone to all my children's activities at school, yes. In fact, I actually have had several meetings with the teachers that I have called and asked to, you know, could I meet with the teachers and the principals. At one point they even had a group meeting, where they had me come to their teacher meeting where they were all there together. Q Now, when would that group meeting that you are referring to have taken place? Lauren? A That was in like September or October. Of 20017 Yes. And was it regarding both children or A This was in regards to Jonathan. His grades were starting to fail towards the end of last year. And I was very concerned about that. And although it kind of seemed like we -- it was like the end of the year, you know. So when he got to seventh grade, and right away I thought I wanted to get on it right away, so I talked to 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 offered. the teachers. In fact, they told me, they said, they didn't understand why I was really concerned. They thought that he seemed fine. And his grades seemed fine. I said, well, I feel he can do better. You know, I don't like to see, you know, mid seventy, low eighty grades. Q So what have you done if anything to work with the children to make sure their grades come up? A I just consistently try to do what I have always done, you know, clean out your bookbag. Show me what you have. What's your homework. You know, check their homework. Do you have any tests to study for. Do you have any projects to study for. I have had this concern. I have talked to Joy Grant about this. And she said, really it is not -- MR. SMIGEL: I am going to object to that. THE COURT: I don't know why it is being Who is she about to quote and why? THE WITNESS: Joy Grant, the counselor at the school. the phone. THE COURT: The person who just talked on THE WITNESS: Yes. THE COURT: Overruled. THE WITNESS: When I talked to Joy Grant 77 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about the children's performance at school, and their responsibility level, because I actually asked her to talk to the children about that, and she said it is really their responsibility. You know, they need to learn that they have to be more responsible and let you know when their projects are and their tests are and so forth. BY MS. CAREY: Q And so have you been working with them on their responsibilities? A Yes. Q Have you kept in touch with the teachers, both children's teachers, during this past year? A Yes. Most definitely. Q Who are Jon's teachers? A Well, he has several different teachers. And I mainly talk to Joe Lazenby, who is the guidance counselor, who then refers to the different teachers for me, as he has in seventh grade. You know, they go around to different classes. He has several different. But I do know some of their names. I mean, do you want me to tell you? Q No. But you have communicated regarding the child's academic progress, right? A Yes. Q And at this point have they come up to the 78 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A progressing. They are getting better. upswing, which I am glad to see that. grade that they had been last year? Have their grades come up so that they are as good as you think they can do? No. I know they can do better, but they are They are on the Q And was that your goal for this year? A Yes. Q Have they been in any way stressed that interfered with their education? A Oh, yes. I think definitely. Q And what are the major concerns -- what is the stress that you are seeing that might be interfering with their schooling? A The first thing would be like the inconsistency from home to home and having things at one house and not the other. The un-cooperation that we have had to deal with with the father as far as getting things that we need at the house or whatever. Or even there was an incident the beginning of the school year when Jonathan was at his dad's house for the weekend. And he needed note cards to work on a project while he was there. Jonathan called me crying, very upset, and said that his dad would not go and purchase these note cards for him. And he wanted them to be purchased so he could start working on his project while he was there. And 79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 he said his dad just refused to go get them. And so I was trying to figure out a plan how could I get him these note cards so he could work on his project. Q Did you talk to the father about it? A There was no communication with the father at that time. That must have been maybe after the PFA. I was not allowed to communicate with him. I think I advised Jonathan to go to a neighbor's house and ask them if they had note cards that he could use. There were several things like that, you know. That being first of all with their performance. And the other thing would be they have told me that when they are at school they feel stressed when they know that it is prior to having to go to their dad's. Actually this has been a recent conversation, maybe a month or six weeks, that they have said that. Q Do you ask them or do they offer it? A I don't ask my children anything. I just simply listen. As soon as they get in the car it is boom boom, boom, boom, boom, about everything. And sometimes we actually, you know, I feel -- I listen. I need to hear what they have to say, but they offer. They are very stressed. Q Ail right. And one reason for the stress would be that there isn't this free exchange of things. 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 That's what you just testified to, right? A Yes. Q Were there any other incidents where like they needed something and they weren't able to get it, a simple request? A Yes. Jonathan, in the beginning of the year, missed a couple history assignments because he left things at his dad's house. And we tried to call on the phone and get a history book. And they would not allow us to get the book, retrieve the book. We actually went to the house to get the book, and Carolyn was home but would not let Jonathan in. That was very confusing for Jonathan why she would not just hand the book out. I went and talked to the teacher, and she was, you know, concerned about Jonathan's missing assignments and so forth and the reasoning why. And she stated to me that she felt it would be much better, more conducive for the children to be in a consistent environment throughout the week for school. This back and forth causes a lot of problems for them. Q How close are you geographically to each other, you know, distance-wise? A Oh, maybe five, ten minutes, ten minutes. Q And prior to the PFA that was filed and dismissed, was this kind of behavior -- I mean, this kind 81 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of activity, normal activity, where you would stop over and get a book or stop over and get something? A Yeah. I could typically call Dave or he would call me. We could exchange items if we needed to. I didn't mind doing, you know, it seemed like I typically was the one to do the driving back and forth or whatever. And I didn't mind doing that for the kids if they needed something. Dave would typically at times would make the kids feel, well, you forgot it, you know. But the exchange was there, I mean, whether I had to do the running or not. And we could at least do the exchange. Q And did you go into the house? A No. I have never been in his house. Q So it was just a simple drop-off thing? A Yes. Q And when the children can't do that, they experience stress, is that what you are saying? A Oh, yes. I mean, they don't understand it. Q Now, you said you are working with them on responsibility. What's the difference between like developing responsibility and periodically going over and getting something? Let me rephrase that. How frequent are they forgetting things? Is this something that maybe is too frequent or... A I don't really think for their age that it 82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is really that frequent. Although I just feel like because it becomes such a dramatic incident it just creates such -- it seems more frequent I think because it is also so dramatized. Q A dramatized. weeks ago. What do you mean dramatized? Well, dramatized. It doesn't need to be I mean, Lauren needed her sneakers a couple And, you know, I said, well, call your dad. We are on our way to the store. Maybe you could just pick them up, or he could put them out on the curb if he has to. And he wouldn't do it, you know, he said no. She can come and pick them up in my office the next day. And that was after a couple tries. I mean, she tried to make arrangements with him prior to that. Could you bring them over, you know, whatever. I mean, it just gets all drawn out and dramatized. Q So basically you are working on responsibility with them so they don't forget their things. Is that what I hear you saying? A Yes. Q And what kinds of things are you doing to work with their responsibility? A Well, I am trying to explain to them the consequences of, you know, well, now you wanted this, but now you don't have it, you know, and so forth. And you 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 need to think ahead. But sometimes they just have to suffer the consequence. Q So when you had the meetings with the teachers this last semester, in general were they pleased with the children, or how were they I should say regarding the children? A to me at all. The teachers have never seemed very alarmed They actually think I am over-concerned. I have gone in several times. And they are like, you know, he is doing fine, or they will tell me about -- Q How about Lauren? A Lauren had some difficulty particularly in her social studies class. And it took me this long to finally realize what the problem was. And here it is in the teaching style that the teacher has. He does not teach the social studies class. He just tells them to get out their work books and get out their work pages, and they have to sit there and read on their own and work on their own. Finally I came to Lauren, I said, Lauren, I have helped her study for tests. Many other times I have said have you studied for your tests over the weekend when she is with her dad. No. But she has like promised me she will study. I am not blaming it on Dave. It is her responsibility as much as it is ours, you know, to help 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 her. But I finally, after talking to the teacher a few times, I finally said to Lauren how does he teach the class. And she said that -- she explained it to me. I talked to him. He told me. And I said, you know, that's not really good for Lauren. She is not a strong reader. So then I realized, okay, now, when she comes home we need to read social studies together so she can understand the material. Q And has she improved? Yes. She actually got a ninety-seven on her test. Q The most recent test? Not most recent but the one before that. The attendance at school, have you been in communication with the teachers or principal regarding the attendance of your children? A Yes, I have. Q And have they been late at times, and have they been absent at times during the year? A Yes. Q When they were a few minutes late on their tardy times, what do you think the reason was? Was there any pattern that you saw that might have been causing it? A In the beginning of the year I didn't really 85 1 2 3 4 5 6 7 notice too much. I did go in and talk to Joe Lazenby- He is the guidance counselor there at the middle school. And he said that jonathan was only a minute or two late. He felt too, well, as I felt, that maybe -- I assumed he was at school on time. Because when I would drive up and drop him off, the children are still outside. And I drop Lauren off. And, you know, maybe he just didn't get to his class 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on time. And if he goes to homeroom, they are going to send him to the office. So they send him to the office and say, well, you know, you are late. And really for middle schoolers this is kind of typical behavior. The counselors were not alarmed at all at some of the tardies. In the beginning I have also explained that he did have some tardies for some anxiety that he was having. There were quite a few times when I felt that, you know, I respond to my children and their needs. And when he tells me he is upset, he has shortness of breath, he is uptight, he doesn't know why he feels this way, and he is late for school, I give him a minute to kind of take a deep breath, get over this. You know, I would rather him get to school twenty minutes late than not go at all that day. I did send notes in that said Jonathan is not feeling well. He came back to me one time and told me, mom, the secretary doesn't believe this, you know, because 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 he probably didn't look ill. So then I knew I needed to go in and talk to the secretary and also talk to the principal, and I did. Q And so in terms of teaching him responsibility, has he had to pay the consequences as you said for being tardy? A Sure. Q And you were aware that he had detention? Yes. And to the best of your knowledge, has that improved? A Yes, it has. In fact, I have discussed that with him. Q He is getting there on time at this point? Yes. Now, the times that he was absent, do you remember the reasons why? A There was a week -- MR. SMIGEL: Are you referring to unexcused You just said times he was absent. Can we or excused? have a clarification? BY MS. CAREY: Q A Let's do excused first. I really don't know of any unexcused. Excused would be like if he was sick. Unexcused might be 87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 the possibility that maybe we forget a note, or maybe we gave the child a note and he never turned it in. Because my kids don't miss a day of school without me sending a note in. Q And you have always done that? A Yes. I always have. Now, with the back and forth, there might be, you know, if he missed a day of school, I don't know if Dave has always sent a note in. You know, the inconsistency of that sometimes may cause problems, but they have always been excused. Q So -- A For sickness -- Q So if it was unexcused, in your opinion it was sickness, and the problem would have been with the note not being there? A Yes. Lack of the note to the secretary, 23 24 25 yes. Q Have you taken him to the doctor for anxiety or for stress? A I didn't realize that at first. I thought we could just work through it and so forth. But then it got to th~ point where I did need to call the doctor. And I did call Dr. Daly, our pediatrician. And they said to just -- Jonathan was experiencing heartburn. And he said I feel that that is anxiety, although you can try Malox if 88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would like. We tried that for a little bit. But Jon is making me nervous because he complains of this often. Q Does he get these same anxiety or distress symptoms at other times besides when he has to go to school? A Yes. They are associated around going to his father's house. This past Easter he had a major one. Q Describe what happened to him around Easter? A They were getting ready to go to their dad's on Saturday for Easter. And we were sitting across the kitchen table from each other. And I looked over at him, and he just looked at me funny, and he just started to cry. And he is not a cry baby, or he doesn't bawl like maybe he did when he was younger. It is kind of embarrassing for him to cry now that he is thirteen. He started to cry, and I said, Jon, what's wrong. And he just said he didn't want to go to his dad's. And they continue to plead with me many different times, you know, do we have to go, or can't you do something. When are you going to talk to your lawyer. And I said, Jonathan, you know, I am sorry, you know, why don't you want to go or what is it. You know, this is Easter. This is a time for you to be with your dad. Well, it is my birthday. It is my birthday, and I really don't want to spend my birthday at my dad's house. Because you know how 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you get up in the morning and it is your. birthday, and it is supposed to be a special day, he said I don't feel like I am going to get that at his house. Q So did you encourage him to go to his dad's? A Yes. Q And he went to his dad's? A Well, we got up and he was talking. And he went over to the kitchen sink and was just standing there. And I went over and I noticed he was crying again. And I put my arms around him and tried to comfort him. And he said, I just don't know what it is, mom. He turned around and he said, I just don't know what it is, mom. He is like holding his stomach and his chest. And he is like I just feel so -- I just can't explain how I feel. And I just feel uptight, you know. And that's when I could tell it is anxiety. Q Did you try to work with th~ father on this? Did you try to talk to him about this? A I would love to talk to Dave and communicate this with him, but he has cut off all communication. And I cannot communicate with him. Q That brings me to the counseling. Why don't we talk for a minute about the counseling. First of all, do you feel that there is a need for co-parenting counseling so that you can help your children? 90 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, I do. And are you willing to cooperate with the counseling? A Yes. Q You were aware that Jake Thiessen was counseling the family, correct, David and Carolyn and the children? A Yes. Initially you didn't know? Initially, no. To the best of your knowledge, when did this counseling start? A To the best of my knowledge, it started directly after the PFA. Q And did you understand the purpose of the counseling from the father? Did he tell you? A No. There was no communication to me. There was no purpose given. There was no reasoning- In fact, when the kids came to me, they said dad took us to see somebody. And they thought they went to talk to a lawyer. They didn't even know what it was or who it was. That's when I started to ask questions. And I guess possibly then after the custody conciliation I realized that that's who they were going to, was Jake Thiessen. Q Then did you try to contact Mr. Thiessen? 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, I did. After the custody conciliation I did try to contact him. We played phone tag for quite awhile. We finally got in contact with each other. And he seemed very not interested, like couldn't understand why I wanted to come in, what was the purpose. Maybe he felt that the confidentiality with him and Dave, I don't know. And I felt very uncomfortable with our conversation. And then he went on to explain to me his fees and so forth. And I said okay, that I would get back to him. But I felt real uncomfortable with the conversation. It didn't seem like he wanted me to come in at that time. Then it was surprising to me that in six weeks later or more he called and said he would like to have some joint counseling with us now. And I would be interested in that very much so. But being that it was so close to our court date, I talked to my lawyer Joan about that, and she said I don't think that would be in your best interests at this time. Let's just, you know -- oh, I think it was if he wants to meet just with you, you know, for right now. And she said that she would contact Jake for me. And, you know, I don't know how quickly he was contacted or not. So I didn't bother to contact him anymore at that point then. MS. CAREY: Your Honor, just for the record, I did explain to Ms. Miele the pros and cons of getting 92 1 2 3 4 5 6 ? 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 involved in counseling. We did not, however, know what the purpose of this counseling was. And so I said we need to clarify the purpose and then we can maybe move into it. I did contact psychological evaluators Stan schneider and sheinvold, and they said that they couldn't fit in a psychological evaluation prior to this hearing. There also was, and I will address this with her, there also was a concern about whether or not she could afford these sessions. So with all of those things needing to be in place, I did advise her at that point just to wait until after the hearing. A~d she always said that she would cooperate. THE COURT: And during all of that is it fair to say that you and Mr. Smigel did not talk? MS. CAREY: No. The order said the father shall participate -- THE COURT: No. I understand that confusion. MS. CAREY: And that was a confusion on my 24 25 part. THE COURT: Okay. Well, with that we will take a recess and be in recess until 1:15, and then we will resume her testimony then. (Whereupon, lunch recess was taken from 12:10 p.m. to 1:15 p.m.) 93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AFTER RECESS BY MS. CAREY: Q Michele, you are still under oath from this morning. Do you understand that? A Yes. Q When we stopped our testimony you were talking about -- at one point you were talking about counseling with Mr. Thiessen. You said he contacted you eventually. You weren't certain exactly when. Did you tell him that you could not participate in counseling? A No. Q What communication did you have with him about your availability for counseling? A The first phone call that I gave to him was I wanted to know if and when he wanted to meet with me in regards to the children. And that phone call he didn't seem very responsive to -- maybe he was caught offguard, I don't know. But it didn't seem as though he wanted at that time for me to come in. He even said, well, I am not really sure why you want to come in. And I felt kind of uncomfortable. I just said I want to know what the progress is with the children. And, you know, maybe I could contribute- Q Had the father told you anything about the purpose of the counseling or -- 94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. I tried to e-mail Dave in February, at your advice as well, to see what information he would give me on the counseling. Because he did start the counseling without my knowledge- Q You had no say as to which counselor -- A No. I did not. I didn't even know they were going. The kids came home and told me that they thought they went to see a lawyer. They weren't sure who they went to talk to. Q And had you asked Dave on several occasions through e-mails to tell you what was going on with counseling? A Yes. I have inquired to him many times, and he has not responded. Q He did not answer your e-mails? A Right. And I requested his response two or three times, and no response. Q Okay. So then you talked to Jake another time after that? A The only time after that -- I talked to Jake twice the first time. And then the second time he called me, which was about a month ago, and he said I think it would be a good idea to have some group counseling. And the children had also actually told me about it before he called. I said that will be fine, you know, I will meet 95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with him and with the kids and, you know, eventually with Dave. But I talked to you about it first. Q What did he say the cost was going to be? A That was a voice mail message he left me. Q And what was the message? A That he felt that it would be a good time to bring me in and to, you know, get back to him. Q Okay. And what was the cost? A It would be the same as it was before, $55.00 a session. Q Okay. And did you express a concern about the cost? A Not at that time I didn't, no. I mean, we had talked about the fact that if Dave wanted us to continue with this counseling, maybe he should be willing to pay for some of it, because, no, I can't really afford $55.00 for every session. My mother did offer to pay for one session for me to go and meet with Dr. Thiessen. Q All right. So you are willing to work with Dr. Thiessen? A Yes. Q If the cost becomes prohibitive, which you said it is, I guess you said the cost is prohibitive for you right now, you are asking that the Court order the father to pay? Possibly his insurance will pay? 96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 A If that's possible, yes. I mean, I told Dave, when he did give me the name of Jake Thiessen in August, at that time I was already looking into some counseling for the children. I had had the kids in counseling with Carol Florey. Q Awhile ago, last year? A Yeah. Yeah. And she was charging a $10.00 co-pay, which was much more reasonable for me. Q So basically the more affordable thing for you would be to go to Carol Florey? A Right. Q Or somebody else who does a sliding scale fee? A Or a co-pay with insurance, yes. Q Or a co-pay with insurance. You don't have insurance now though, do you? A Well, he carries insurance for the children on his insurance from the school. So it would be under them. Q Okay. All right. When he testified he mentioned the fact that he had gone to counseling before. Has he ever had the children in counseling before with you? A No. With me? Q Well, has ever had the children in counseling before? 97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I am unaware that he has ever had the children in counseling- We have been separated for almost three years now. And I have never known him to have the kids in counseling of any sort. It was always me calling him feeling quite frustrated about different behaviors and such that, you know, we really need to have some counseling. And then it got to the point where he finally did give me Jake Thiessen's name, because he looked into some names, and I was looking into some names. So when he gave me Jake Thiessen's name, it was just a general, here is a guy someone told me about, $55.00 a session. Q Ail right. And did you give him Carol Florey's name as a possibility? A Actually he went to see Carol Florey. And as far as I know the children have only been to Dr. Thiessen three or four times maybe. So it couldn't have been a year and a half. Q So, in other words, did you feel a need for counseling during this past year for the children? A Yes. Why didn't you take them to another counselor? A Because I tried, and I was told that I was not able to get them into counseling with another therapist 98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 while they were with a therapist. Q And you didn't understand the point of Mr. Thiessen's counseling? A Well, I was never communicated that. In fact, I wasn't even sure if it was a counselor. You know, it wasn't actually until the custody conciliation hearing that I realized, okay, they are going to Dr. Thiessen, because the kids, you know, just by going by what the children say... Q And what did they say was going on at the counseling? A Well, they weren't sure if it was a counselor, a lawyer. They weren't sure who they were talking to. They told me some of the questions that were asked, like who would you rather live with, your mom or dad. It was a little hard for me to believe that a counselor would ask that question and put the kids on the spot like that. But those were the kind of things the kids would come home and tell me. Q All right. So has he been in counseling with you before during the marriage? A Several times through the marriage I was in counseling, and we would try to do the marriage counseling- Q And did he leave -- A It would be off and on, off and on. He 99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would come for maybe a session or two, and that would be the end of that. Q And he would leave the sessions? MR. SMIGEL: THE WITNESS: MR. SMIGEL: THE COURT: Objection. Well, we would leave together. I am going to object. She already answered the question. MR. SMIGEL: Then I will withdraw the objection. BY MS. CAREY: Q All right. I want to talk a little bit about the supervision that you, if any, what supervision do you provide for your children regarding Internet use? A They have the parental controls on the computer. And also the computer is located right in my kitchen, so it is very -- I mean, we spend most of our time right there at the kitchen table and the computer. And they are usually -- whenever they are on the computer I am there. Q Okay. You heard his testimony about the e-mail joke that he and a friend -- A Yes -- -- must have gotten access to? A Yes. 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A forth. Q Were you aware that he had that? A I wasn't aware of it until later when he got in trouble for it. And then I reprimanded him as well for that. And it was an incident of having friends over, you know, that they were on the computer, which I think is typical for his age. And he was reprimanded for it. Q And have you taken anymore precautions since that happened that it wouldn't happen again? Well, he has the parental controls, yes. What do you mean by parental controls? Well, they can't get on certain sites and so It blocks certain things. Q Okay. And you put that in place on your computer? A Yes. Q What about the video games, do you supervise their video game watching and purchasing? A Yes, I do. For the most part I always -- Jonathan has never really been one for much violent games. He is usually always into the sports and X games type of videos. Although now he is thirteen. With his friends and so forth. And he was having a birthday party. And I told him we will go to Blockbuster and you can rent a play station game. And this is what the boys picked. And, you know, you are in the predicament there 101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 which, you know, and I thought well -- Q Did you know about this video, anything about it? A No, I didn't. But the boys seemed to all be well aware and have played it. And that usually does seem to be the case. But there is a lot that Jonathan does not -- actually just his own personal preference does not pick. But we decided to go ahead and try this one. We brought it home, because he had heard a lot about it. And I didn't like it. Q Did you watch it with the kids? A Yes, I did. They played it in the kitchen, on the T.V. in the kitchen. Q And so did you talk to Jonathan about the -- A I talked to all the boys about it. So you used this as a teachable moment for all of them? A Yes, I did. And Jonathan also tried to get me to buy it for him for his birthday- And we were at my mother's house, and we were at his cousins', and I just told him absolutely not. I won't purchase that for you. And my mother witnessed that conversation. Q A~d he understood? A Yes. He understood. And, I mean, and as far as prostitution, I watched the game, and I didn't see 102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 any prostitutes on that film. It is just basically, you know, instead of being the good guy, you are the bad guy. You are the mob. Q But it is not something you would want him to have in his library? A No. It is not something I would want him to purchase. It is something that, you know, if he played it once in awhile, I don't think it would be that harmful, but not something he would play on a regular basis. Q The court order that was entered, the interim court order, said that you were to attend a seminar for separating parents, is that right? A Yes. Q Did you do that? A Yes, I did. And you received a certificate? A Yes, I did. (Whereupon, Defendant's Exhibit No. 1 was marked for identification-) Q I am showing you what we have marked as No. 1 for defendant. Is that your certificate of completion? 23 24 25 A Yes, it is. When did you complete that? February 23rd. I presume 2002? 103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Sorry. Q It doesn't say. The focus of that, did they deal in that seminar on communicating with each other, the separated parents' communication with each other? A Yes, they did. Q Have you had some concerns about communication? A Q Oh, absolutely. And is there a difference in your mind between communicating with the father and boundaries, as he said, need to be in place? boundaries? A Q communication? A Do you understand about Yes, I do. Do you see that in opposition with No. There should be certain boundaries, but we should be able to communicate. I mean, I am friends with quite a few divorced families now that I -- I mean, yes, you have boundaries, but you can still communicate. Q Now, the PFA has been dismissed, so there is no reason there that you shouldn't communicate. In terms of e-mail communication, which was suggested and tried and put in place, how has the e-mail communication been working? In your opinion has it been effective? A I feel it is not effective. 104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Q And why is that? A Because many times there is no responses. You know, many times there is questions that I ask him about the children, and I get no response. So I feel it is being misused. Q And what would be your alternative to communication that was effective? A I think that there is really no reason why Dave and I can't communicate on the phone. We used to do that before. All of a sudden it came to a complete halt. I really don't understand why. So it has caused a lot of friction, a lot of problems. I am more than willing to communicate with Dave on the phone about our children. That's as far as it needs to go. And I think it is really hard to communicate over the computer. Q Had there been a period when your computer broke down? A Q Yes. There has been. And how did you communicate during that period? A we needed to. We just didn't. Nothing really came up that And I really feel that, you know, any divorce there is an adjustment period. And I think we are through that adjustment period. So I really do think that the communication can be improved with boundaries that are 105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 more understood. I don't feel that either one of us was violating any boundaries to begin with. But we certainty have gotten used to not having to communicate. So the communication will be limited to only what needs to be communicated. Q And in terms of we have already gone through I think going to the house on occasion, but not on a regular basis? A Q Right. And you have no intention of going into the house, it would be the children? A Right. Q Do you foresee calling first before you would go? A I usually do, yes. I have always have called and checked ahead of time, or have had the kids call. Now the kids call and check. Q Do you feel that this lack of communication has in any way adversely affected the children? A I feel it definitely does. It just causes an estranged environment for everyone. Q Do you see any signs in the children of their stress regarding this? A Yes, I do. Because the kids have always known Dave and I to be friends. I mean, we were married, 106 1 we had a good marriage for -- well, we had some issues, but 2 the kids as far as they saw it, you know, we were a happy 3 family. And we could have worked things out. So it is 4 strange for them. And like you said, Jake Thiessen had 5 recommended that in any divorce situation there should be 6 complete open communication and open -- there should be no 7 restrictions on maybe what they want, like where they need 8 to be or where they want to -- I think what he was saying 9 was just that, so the kids don't feel that there is 10 restrictions that make them feel inhibited. 11 Q I believe you are referring to my 12 conversation where he told me the purpose would be 13 co-parenting counseling, correct? 14 A Yes. 15 Q 16 17 18 19 20 21 22 23 24 25 That was just this past week? MR. SMIGEL: Excuse me, there has been a series now of quotations of Dr. Thiessen. And now counsel is quoting what Dr. Thiessen has said to her. And this is hearsay. I would propose that his letter of May 15, 2002, which does represent all the things that he has done here with this family and his communication with Mrs. Shover be admitted now, since counsel has been broaching the subject. THE COURT: I will be happy to let it in in the interest of completeness- MS. CAREY: Except that it is not -- 107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Evidentially that is hearsay. But the instructions that Dr. Thiessen gave her isn't hearsay. It is not a statement being offered to prove the truth of any matter asserted in the statement. I was told by a doctor that I should do this. That is not hearsay. MR. SMIGEL: I understand. THE COURT: A statement by a doctor that says on X date I had an appointment offered to prove the truth of the matter asserted in that statement, namely, that I had an appointment, is hearsay. MR. SMIGEL: Yes, Your Honor. THE COURT: So what they are eliciting is not hearsay. And that document is. That's the problem. So if there continues to be an objection to it, I am constrained to sustain it. MR. SMIGEL: Understood. BY MS. CAREY: Q So the co-parenting counseling, if it is an independent counselor, you are willing to cooperate with, correct? A Yes. Q And hopefully through that you could get to more open communication with the boundaries that you just described, right? A Yes. 108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Now, during the -- THE COURT: I will add parenthetically to what' I just said though. If counsel are going to make arguments about counseling, and what the counseling needs are in this case, that letter from Dr. Thiessen would be very important in my making any intelligent decision. And I will just lay it right out. MS. CAREY: I will agree to admit it. (Whereupon, Plaintiff's Exhibit No. 11 was marked for identification.) BY MS. CAREY: Q Now, you said you have been in counseling with the father, marriage counseling, can you just generally explain the pattern of behavior that occurred that caused you two to finally separate? MR. SMIGEL: I am going to object as to relevance. MS. CAREY: I think it is relevant -- THE COURT: I know this isn't a divorce case, but how the parents get along and why they didn't get along is always important in a custody case. We will permit the testimony. Go ahead. THE WITNESS: I dealt with a lot of frustration in the marriage because of a lot of controlling and rigid behaviors from Dave, a lot of degrading and 109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 disrespect towards me. We would get frustrated, we would try to talk about it many, many times. He admitted to me that this occurs, and that I don't deserve it, but he doesn't know what to do about it. We went to many different counseling sessions and so forth. A~d, you know, it seemed like it was a pattern of behavior that would be almost bipolar, in a sense that it would up and down, up and down. And, you know, so one minute I am thinking, okay, we are fine, and, you know, everything is okay. And the next thing, you know, something would happen that might seem really small, but it would blow up into a big thing. And the next thing, you know, he would leave. BY MS. CAREY: Q Was there a pattern of blaming you for things? A Yes. He always blamed me. He always put me in a position that made me feel almost kind of brainwashed, that it was my fault, you know, you this and you that. And I just couldn't ever seem to get through to him, except on the few occasions every once in awhile he would admit that, you know, I didn't deserve to be treated that way. But there was a lot of manipulation. Q He admitted that blaming was a problem of 25 his? 110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 9.0 21 22 23 A Yes, he did. He would place on false guilt. And the reason why this is relevant is because these are same of the patterns I hear from the children. These are the things they are telling me. Q What are the patterns that you hear from the children, the behaviors that you hear from the children, that are making you think of the same thing you experienced when you were living with him? A The false guilt. Dad makes us feel guilty of this or that. The intimidation, the manipulation. Q Give an example to the court of the intimidation that you hear from the children? A Well, we had an incident with hunting. Jonathan was going to go hunting with his dad. And there wasn't very good communication about all that. I have always been very supportive of that activity. Although Jonathan didn't want to go. He did not want to go to deer camp. And Dave just absolutely refused to believe Jonathan 24 and validate his feelings. He insinuated and insisted that it was mother keeping him from doing this with him. And it wasn't. But being his mother I was placed in a position to validate jonathan's feelings and try to do something for him. So I tried to talk to Dave and it didn't work. 25 Although 111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 Q This was this past year? A This was this past year. Now, Jonathan came home from a weekend with his dad. And it usually takes me a little time when they get home to kind of revamp everything, because they go through all this stuff, or their attitudes are strange or whatever. And he was really acting different that night, really frustrated and upset. And that also was one of the days that the following day he didn't go to school. He went to school late, because he had an anxiety attack in the morning. And he said that his dad was very upset about him not wanting to go hunting. You know, he didn't want to believe him about it. And I guess they were shopping, and they went to buy some hunting clothes. And he said, well, we were going to buy some hunting clothes this weekend, because I thought you were going hunting with us, but I guess you are not going with us. What's the kid supposed to feel? So he had a lot of anxiety that particular time. And I tried to calm him down and tried to tell him, you know. He wanted me to share with his dad about how he felt about hunting. But he didn't want his dad to know. He said, well, maybe we could offer this option or that option, but don't tell dad that I told you to do that. So 25 I -- 112 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q You were sensing intimidation there? A Yeah. Oh, don't tell dad. So I sent him an e-mail giving him these options. Could we do this, could we do that. You know, Dave is very demanding. This is another thing in the marriage. And he just told me this is when we are going. This is when we are leaving. It was right over all my custody time for my holiday with Thanksgiving vacation, but this is when we are going, and this is when we are coming back. And I said, well, can't you just be flexible and we can work something else out. Q So, in other words, Jonathan could go for a couple days but not the whole weekend? A Oh, yeah, exactly. You know, work something else out that works for all of us. And that was intimidation. One of the things that they recently told me was, which I was brought back about, they said that Dave -- they said the reason -- the reason why -- we love you so much, because they have just been really showing me a lot of affection. And they said, we love you so much mom. They are hugging me. And they go, the reason -- I almost hate to say this, because I don't want to hurt someone. But the reason why we love you mom is because you love us back. And I really feel that maybe there is an issue with Dave, that he maybe doesn't know how to love 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 someone back, because that was some of the problems we had in the marriage. It is like I am giving, giving, giving, and he wasn't, you know, returning. Q Regarding the discipline, who was the disciplinarian when you were together? A When we were together and the children were young, I was a stay-at-home mom. I took it to be my responsibility to teach and train the children. You know, Dave was active with that when he could be. But for the most part it seemed like I was the one trying to, you know, we should discipline him for that, you know, and so forth. Dave seemed to --which is very different than the way he seems to be now with the children. But he was the clown. I mean, he was the one that goofed off, joked off. You know, they had fun, but yet, you know, I would try to get some manners and stuff like that. But, I don't know, I figured he was having fun with the kids and we would take care of it. But he seemed always to want to be the good guy with that. Q Now, at this point are there concerns regarding the discipline when the children are with him? A I am sorry. Could you repeat that? Q Do you have concerns regarding the discipline that he is exerting now in an attempt to show the kids that he is in charge or whatever? 114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. It is very authoritarian- I mean, he was that way with me. He wasn't that way yet with our children. He probably would have become that way as they got older. But he was very authoritarian with me, but not that way with the children when they were young. Now he seems to be that way with them. Q And what kinds of concerns do you have? What disciplinary measures do you take issue with if any? A When the children come home and tell me that they were drawing in church, and they got in trouble in church. So when they came home they both had to sit in chairs facing a wall. Jonathan downstairs in the basement with the light off, Lauren upstairs facing a wall, for two hours. And when Dave would decide to discipline in our home before the divorce it would be extreme like that. It would be like an extreme. You can't watch T.V. for a month. And it would always seem real extreme for a five year old or a six year old. So that does seem to be the pattern of the extreme. Q Any other concerns about the discipline? A Every time they come home they have stories. Q Now, how do you attempt to deal with that? I mean, do you alienate the children from him? Do you talk about him in front of them? 115 1 2 3 4 5 6 7 8 9 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 A No, I have never. As much as I have heard, the fact that I have never taken any custody away from him or tried to file anything on him. I mean, they have kept their schedule with their dad, you know, right to the tee. That incident we had at Easter I was getting kind of concerned, do I send him, what do I do, but I sent him. I mean, I don't like this. I don't like that they don't have this with their dad. I don't like it anymore than, you know, we didn't have a marriage. But that's over now, and I understand that. But I am just saying it is no fun for me to sit here and talk about the fact they don't have a relationship with their dad, I want them to, and with their grandparents. Q Do you try to work with them on that? A I would, but being that the communication, you know, has been cut off -- oh, you mean with the children? Q Yes. Yes, I do. And if the communication were not cut off, would you try to deal with the father? A Yes, I would. Q Given the pattern from your marriage, however, do you feel you need -- could you do this by yourself, just you and he? 116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I believe I trust myself not to know that I could, but I am not sure -- I am not sure -- I mean, I really don't even understand why Dave has taken things to the measures he has had now. So I don't know if he is capable of that or not. Q With a counselor possibly? A Yes. We have never been successful in counseling before, but hopefully, you know, we could be at this point. Q And there was testimony from him that you told the kids you were going to take them away from him. Did you ever say that? A No. I have never told the children that. MR. SMIGEL: It is backwards. That he was trying to take them away from her. BY MS. CAREY: Q Did you tell the children that he was trying to take them away from you? A No. Q We talked about the children having anxiety attacks. Did you take them to the doctor? A Dr. Daly has been aware of Jonathan's different attacks. And many times I have called Dr. Daly for references for counselors and so forth. Q And has Dr. Daly confirmed the concerns with 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 the school? A Yes. I did talk with Judy Esworthy, she is the principal about Jonathan's absences, and so forth and the anxiety he is dealing with. And they understood. They were very supportive. And they requested the note from the doctor. Q that from Dr. Daly? A Yes, it is. Q Who is Dr. Daly by the way? children's pediatrician? A Q A (Whereupon, Defendant's Exhibit No. 2 was marked for identification.) I am showing you Defendant's Exhibit 2. Is he the Yes. He is their pediatrician, yes. A~d has he been since -- Q IS He has been since birth, yes. So what is that note? What is the content of that note? A That Jonathan has been experiencing episodes of anxiety which cause frequent tardiness from school. Q And you are giving that to the principal? A Yes, I am. She just needs to have it in his file. Q Have you taken Lauren to the doctor at all because of any of the stress or anxiety? 118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Lauren was complaining though of blurry vision. And I let it go for a little while just to see how it progressed. I had just taken her to the eye doctor in November. They both were due for their eye exams. And they were both fine. So she was complaining of this blurry vision. And when I finally took her to the doctor was when we were walking through the mall one evening, and she just stopped in the middle of the mall, and she said my eyes just got blurry. I thought that was pretty important to take her to the doctor the next day. So I called the doctor and got her in for an emergency appointment. She went in to see the doctor, and I was really surprised. I thought maybe she might be experiencing some kind of a physical problem, maybe, I don't know, diabetes is the first thing that came to my mind. I am concerned. But the doctor checked her out. He said that her eyes were fine. They are completely healthy. And that he felt that it was due to stress. And, you know, I had mentioned to him privately that they are going through a custody battle and so forth. And they have a lot of stress in their life right now. And he said that it is definitely -- it is not an eye problem. Q Did you notice anything physically when you 119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 looked at her eye that caused you to take her to the doctor? A Yeah. Because that evening we went out to dinner then after the mall, and her eyes were dilated. And that scared me. But, I mean, apparently that might have just been because we were in a dim room he said. That children's eyes do that. And I didn't realize that, that they dilate more than ours do in a dim room. Q Did you communicate that to the father that you were taking her to the doctor? A The next day I e-mailed him to let him know that we were going to the eye doctor. Q In terms of the children's tardiness, I know we talked a little bit about the fact that they were sometimes four minutes late, one minute late, what time does school start, 7:40? A Yeah. Like 7:40, 7:42 maybe. Q Okay. And so some of these unexcused absences were 7:45, 7:49, 7:44, 7:41. So that sometimes Jonathan is -- I mean, are those the times when you thought that he was probably -- A Probably those could have been that, yes. Q Then some of these are -- let's see. MS. CAREY: If I could approach. This is Exhibit 5 that you admitted. 120 1 BY MS. CAREY: 2 Q If you look at Exhibit 5, most of those 3 absences or tardies are excused? 4 A Yes. 5 Q And there are several on there that are for 6 sickness, is that right? 7 A Yes. 8 Q And one that's a couple -- are there any 9 that are a couple -- the morning hours that you described 10 earlier in your testimony, that he would go in a little bit 11 late because he had these anxiety attacks? 12 A Yes. 13 Q How would they be reflected on there, 14 excused or unexcused? 15 A I would assume they are excused. I would 16 always send in a note. Whether the secretary decided to 17 take it upon herself that, well, it is not excused, I don't 18 know. But I would send in a note saying that he wasn't 19 feeling well. Then I felt that I had the need to explain, 20 you know, what his physical issue was. 21 Q There was testimony that you wrote 22 conflicting things to the school and that there was some 23 concern. I am going to show you Exhibit 6 that they 24 requested be admitted. 25 A I am not sure I understand what's 121 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conflicting. Oh, Lauren had made the comment to the teacher that the alarm didn't go off. Q Was there ever a time that you told the children to lie to the teachers? A No. No. Q Or sent lying notes to the teacher? A No. I don't do that. Q Was there a time or two when the alarm did not go off? A There may have been that we got up late, you know, kind of thing. Q Was that a pattern? A No. Not a pattern at all. And Lauren, you know, I can't control what she goes in and tells her teacher. Q The father's concerns were that you were not in touch with the teachers. You testified that you had been in communication with the teachers. Did you communicate with them by e-mail? A Some I did, yes, by e-mail. Q And you communicated with them when the children were sick as well to get homework from them? A Yes. (Whereupon, Defendant's Exhibit No. 3 was marked for identification.) 122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q defendant. I am showing you Exhibit 3 for the Would you look through those? Are these copies of the e-mails that you would send to the teachers regarding the children? A Yes. Q Okay. MR. SMIGEL: gave me are e-mails to him. packet. MS. CAREY: Some of them are in here, yes. Excuse me, the pack that you You have given me the wrong Let me see. Your Honor, I will deal with these after recess later. hold. I am sorry. there. But I will continue. THE COURT: Fine. MS. CAREY: If we could just put that on I think I have them in the wrong order BY MS. CAREY: Q There was a communication between your attorney before I was involved in your case and the father's attorney, and you were to have phone contact with the children on a regular basis, once a day, is that right? Was that the agreement? A Yes. Q Tell the Court how that went? Did you have any problem with that? A Well, the problem I feel is because Dave 123 1 would let them call me at ten of 8:00. Both children had 2 five minutes. And it was usually very stressful. They 3 were yelled at to get off the phone. And they didn't have 4 enough time. And even if the child would insist, no, dad, 5 I want to talk to mom, you know, one time particularly my 6 son was going away on a trip. And he wanted to have some 7 more private time, say good-bye to me, you know, whatever. 8 His dad was hovering over him, no, hang up the phone, hang 9 up. And he basically hung up on us. Later Jonathan was at 10 a friend's for a few minutes. And he called me back. 11 Q So it is not that you are keeping the 12 children on the line, they want to stay on the line? 13 A No. I have never, you know, I have never 14 been on the phone with my children since the divorce for 15 thirty or forty minutes. 16 Q Usually the conversation is about how long? 17 A Fifteen, you know, ten, fifteen minutes. It 18 just depends on the situation, what we are talking about, 19 how much they want to tell me. I mean, I don't sit and ask 20 questions about every little thing they have done. 21 Did you ever have problems getting those Q calls through? A 22 23 24 25 Yes, I have. Because I am not allowed to call, so they call me. And I have been told that if they call me on my home phone and I don't answer that that's it, 124 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 one call. They are not allowed to hang up the phone and call on the cell phone. They have tried to do that. Hang up and call on the cell phone, because obviously I am not at home. And they have not been permitted to do that. They have been told that's one call. by just calling me on my cell phone. me. Now, we resolved that And I will keep it by Q Mr. Shover told the Court that he was willing to be flexible, and that he was flexible. Have you had experience with him being flexible regarding changes that you have asked for? A No. Unfortunately I have not had any flexibility from Dave at all. Any time I have asked him to switch schedules, make different arrangements -- even to the point of his sister's own wedding. She had contacted me through e-mail. And I told her the best way to deal with it would be to switch weekends in the fall coming up for her wedding so that she could have the kids for the whole entire weekend and not have to worry about, you know, different times. Dave was just very difficult about it. He just wouldn't just switch weekends and say, okay, you take this weekend and I will take that weekend. Through e-mail we could have had it resolved. He just kept refusing to cooperate and insinuated that for some reason we would have 125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to have our summer scheduled set before we could have the October weekend switched, which didn't make any sense to me. And, again, I feel it is just his controlling, like, well, if you want this, then we have to do this. And it was for his own sister's wedding. I don't understand why we just couldn't switch weekends and be done with it. Q In terms of access to the children when they are with him, access that would be within boundaries, when the children are in his custody, for example, and they go to, let's say, a concert or something, are you able to communicate with them? A No. They have been told that they are not allowed. A beforehand. This would be a school concert? Yes. You know, I might get there Maybe I don't stay for the whole concert. They are not going to see me afterwards. There is a concert on Sunday afternoon. And, you know, we see each other a lot. You know, the whole family is at baseball games, basketball games and so forth. The kids are allowed to go back and forth while we are at that function. But at the school concerts just this last couple weeks I saw Lauren, and she was sitting way in the middle of the aisle. And I waved to her and said hi. And, you know, she told me that she wasn't allowed to come out 126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to see me to give me a hug hello. So I sat, not next to her, but I sat off on the side. And then I saw her. I decided that I was going to stay until the end of the concert, because my son asked me to. And so I stayed. Something that concerns me that has to do with that concert as well, but Jonathan calls me at 1:00 in the afternoon. And he does this frequently, and he just sounds really sad and upset. And I will ask him, what's wrong, Jonathan. You know, I don't know what preempts that. But, you know, I got to the concert, and he asked me to stay until the end of the concert so he could see me. When I stayed and I saw him after the concert, he wouldn't let me leave until he was done getting his flowers together. He kept saying, mom, stay, stay mom, you know. Q Now, the father talked about a problem that happened recently, like a flare-up where he had to discipline the children. Are you aware of any concerns, like last weekend, that resulted in the children getting punished? A Are you referring to the flare-up that happened on Sunday afternoon? Q Yes. A Yeah. I am very concerned. Q Now, what happened there? Now, don't tell the whole detail thing, but what was the concern? 127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A The concern would be the way the children get treated over things that -- I mean, I don't know, because I am hearing Jonathan's side of the story, of course. But the things that he tells me and the way that it occurs. And the way that they get treated in response to that. And things like they get yelled at in public like with their friends around or other adults around they said. Lauren was embarrassed because her fourth grade teacher was there when Dave apparently was yelling at Jonathan on stage. And Jonathan was crying. Carolyn apparently left in a huff arguing. And they often tell me that she is yelling and screaming at them. He said, when he got home, and I usually get the acted-out version when they get home. They dramatize it. And he told me that as soon as he got home, Carolyn -- well, first she yelled and said that you are not going home with me. And if Lauren wanted to go, she could. And if not, she decided to stay. Q This would be home after that Sunday -- A After the concert. When we got home, as soon as Jonathan walked in the door, it was don't you move, he said that she said and pointed at him. And he got like up against the wall. And she yelled at him for an hour and a half, and just reprimanded him, and told him that she knows about taking care of children. And you are not 128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A over e-mail? Q interested in a word I have to say because the way you are standing there. But he just feels quite frustrated with constantly being -- I guess I want to say harassed, with things like he is no good, you know. He is always wrong. He is always something -- Q So you didn't deal with the father or Carolyn about this, because you can't communicate at this point with them? Right. Except by e-mail? Yeah. How are you going to talk about that But that's something that needs to be worked out because it is the children's -- you are seeing the children being -- A Their self-esteem is being destroyed, yes. It is affecting them mentally and emotionally, yes. And really, to be honest with you, there again, it is not another scene that I can relate to. I can imagine, the dysfunction that I lived with in the marriage for fourteen years. Q What would you propose for a custody arrangement in the future? A My proposal would be that the custody should stay the way that it is. It seemed to work fine in the 129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 past. I don't understand -- I think Dave actually -- compared to most people that I have been involved with, gets sufficient time. And from what the children tell me I think as long as -- whatever the Judge feels is appropriate for the children. I would agree to that. I am not trying to take any time away from him, but... Q The children have told you they are uncomfortable with -- A Yeah. If they don't want to be there, and the heartfeltness that I understand that's coming from them and why they don't want to be there, it is hard for me to say that, you know, for them to be there more. Q Just one other area. Do you have any concerns about the environment at the father's residence? A Yes. Unfortunately I do. Only because I lived in my marriage. And I feel that the same mental and emotional distress is being placed on the children that it was on me in the marriage. Different people, that I won't mention at the time, but different people are aware of that, that are close to our families. Q And you see the children being adversely affected by all of this, do you? A Yes, I do. MS. CAREY: I have nothing further. 130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. SMIGEL: Q CROSS-EXAMINATION Have you been working at all during the time since our last hearing before the Court in October? A No. Q Do you work and get paid without reporting income? Do you clean or something like that? A No. Q Do you have any job at all where you get money from any source now? A No. Have you between October and now? No. So you are just going to school? Right. And how often do you go to school? Twice a week. Do you pay for this school? Right now I am getting financial aid. Do you pay anything? No. You pay nothing, you get full aid? Yes. And do you have time to work? MS. CAREY: Objection, Your Honor. That's 131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 irrelevant. MR. SMIGEL: THE COURT: the parties is relevant in a custody case. BY MR. SMIGEL: Q Would you like an offer? No. The employment situation of Go ahead. Do you have time to work? I may have time to pick up a part-time job. Right. Would you have enough time to pick up a part-time job to be able to pay for your participation in counseling for the children? A Yes. Q Is that an important thing to you, for you to participate in counseling for them? A Of course. Q Is it important enough for you to do something about it? A Yes. Q But you haven't? A No. Not at this point, not since the PFA and the custody conciliation, no. Q Okay. I am going to show you this letter. This is Exhibit 11. It is dated May 15th. And I believe in your testimony you repeated that you were made aware that Dave initiated psychotherapy with Jake Thiessen, Dr. Thiessen, in August of 2001, you knew that, right? 132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A the appointment. Q Ail right. A No. I did not. Q You just said it in Court today, that you knew that he was going to see him since August? A No. He informed me of the man's name and phone number and price. In August? In August. Of 20017 And told me to go ahead and call and make In this letter it says, this is from Dr. Thiessen, that Dave initiated the therapy with him in August of 2001. And that his concerns are the well-being of the children subsequent to his divorce and his remarriage. He said that the children were experiencing significant stress, which related to the ongoing conflict he was experiencing with their mother. You agree with that, right? A No. Q The children are under stress, and he is saying that it is -- at least it has been reported, that there is ongoing stress, because the two of you are fighting, and that's why the children are stressed. disagree with that statement? A Do you He as in Dave? Is that what the sentence is 133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 referring to, Dave? Q Yes. Sure. A Yeah. I will give him that maybe he was experiencing conflict with me, but through his own interpretation. Q Well, isn't it fair to say that the children are under some stress and that the two of you are in a high state of conflict, that that may be a contributing factor to that stress, isn't that correct? A Yes, that would. But I am not trying to contribute to that. Q I didn't say you were. A Okay. Q Now, as a result of that stress that you say you observed in the children, wouldn't it be important for you to be able to participate in a controlled setting, such as counseling, to alleviate the stress for the children? A Sure. Q All right. He says here that Dave sees himself as the parent whose job it is to bring structure to the children's lives, because according to Dave, you were either unable or unwilling to do that. Do you understand that that was what Dave's issue was, one of his issues? A Yeah. I understand that that's what the letter says, yes. 134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And that he understands that because he is the one now trying to bring structure, he is being perceived to the children as being mean and inflexible, and you are the one being seen as nice and accommodating. Do you understand that to be their perception? A The children's perception? Q Yes. That's pretty accurate, isn't it? A That the children view him as mean and me as accommodating, is that what you are saying? Q Yes. A That may be their view, yes. Q Okay. Now, isn't that one of the reasons why he is going to counseling with them and trying to work that out, and isn't that one of the reasons why you were invited to go to counseling, to try to resolve that? A Yes. That's a possibility. We have had a conflict for quite sometime. We have had a need for counseling long before the PFA. Q Now, Dr. Thiessen in this letter also corroborates, he says, in these sessions the children essentially corroborated Mr. Shover's impressions, that the children viewed him as the bad parent, while they viewed mother as the good parent, right? Do you agree with that? That's how they view him? A I don't know if we want to use the terms bad 135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and good. then... But if those are the terms you want to use, Q Okay. Both of the children expressed a love for their father, and also they missed having the father exclusively to themselves now that he is remarried. Did you determine ever that that may be an issue that they are experiencing with him, his remarriage and how that fits with them? A Q Oh, definitely. I tried to tell him that. Now, he says, he, meaning Dr. Thiessen, says here that he had three more sessions with Dave and the children. And that during those sessions it was obvious that you needed to be involved in that therapy. Now, before we talk about the contact he made with you in January, let me ask you, do you remember the custody conciliation? A Of course, I remember it. Q And do you remember the discussions that we had that you needed to participate in that because Dave already was doing as much as he could with the counselor, but that you were an integral part of that process? Do you remember those conversations? A Yes. I remember that it was advised that it would be a good idea if I talked to Mr. Thiessen. And that's why I called him. 136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. And it would be a good idea that you participate in the counseling, isn't that what we were talking about? A I don't know if we knew how far it would go with counseling, but we just knew that it would be a good idea if I talked with him. Q Okay. As the order came out, it said father shall participate in counseling. But that was a mistake, wasn't it, it really was mother -- A I didn't even really notice it. I still was planning on meeting with Mr. Thiessen. Q So you were aware that you were at least committing to go to the counseling and participate, correct? A Q A Q A Q A Q Yes. But you never did, did you? No. I did not. And that custody conciliation was when? In December. Right before Christmas. December 17th, wasn't it? Yes. Then in January of 2002 Dr. Thiessen says he talked to you by phone, and he says, further, that you did indicate an interest in participating, but you said you had some financial constraints, right? 137 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Well, I know I didn't tell him that. asked him about his fees. Q this? A Are you saying he is wrong when he says I am just telling you what the phone call was as far as I was aware. That I asked him about his fees, and I told him, okay, I would let him know. Q And he says here that he offered you a flexible fee schedule since insurance wasn't an option, but you said you still could not afford to participate? A Because he offers a flexible fee, but that is the lowest fee that he offers is $55.00. Q Okay. didn't discuss fees. A No. So now just a second ago you said you But now you said -- I did say I discussed fees, but I didn't discuss with him that I couldn't afford it. I just discussed what would the fee be. And is it a sliding fee scale, thinking that maybe it might be lower than fifty-five. But he said, no, the lowest I go is fifty-five. Q Dave were there with the kids, it would be a total of $55.00, correct? A Yeah. I would assume. Q And you could not afford to contribute in So it is $55.00 per session. So if you and 138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 any way to that session with a total of $55.00, even if he would pay half? A It is really not about the money. My mother would have been willing to give me the money for that appointment. Q A Q did not participate in this family counseling. it? A It is not about the money, is it? No. So there was some other reason then that you What was When I talked to Jake Thiessen on the telephone, he seemed very despondent. He was very -- like didn't know why I was calling. Like he didn't want to give me any information, didn't know why I feel I needed to come in. I felt kind of confused about that. Obviously, since I can't communicate with Dave. And right after that was when I did try to communicate with Dave about how is the counseling going, what's going on, maybe I could get some leadway from him about that. Q Well, he left another voice mail message for you asking you to contact him again in March he says here. But you did not return his call? A Yes. That's when I got advice by my lawyer. In March? Yes. Whenever I got that message from him, 139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yes. Q Well, do you know that because you won't participate that he then had to suspend the therapy for the kids and Dave, because they couldn't go any further without you? A Q Well, we can certainly continue that. But you agreed at the conciliation that you would do it, but you didn't. Why would anybody think that you would do it now by promising now to do it when you didn't before? And it is not about the money? A Well, it wasn't about that I didn't do it. When I first called he didn't seem like he needed me or wanted me to come in. Q I am sorry. you, but I am not clear. I don't mean to be badgering First I thought your reasoning and that everything your lawyer has said today, and all of her questions were, that you didn't participate in the counseling because of financial constraints. You are now saying it had nothing to do with that, because your mother would have given you the money, or Dave would have paid for the first session, it is just that you didn't like Dr. Thiessen? A Dr. Thiessen. Q No. It has nothing to do with not liking You didn't like the way he talked to you? 140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A an appointment. I mean, it didn't seem like he wanted me involved with the group therapy at that point. Q Well, why do you think he was calling you? A No. The first time that I called him. The second time, yes, he did. Q Okay. So why didn't you go then the second time? not to. No, I didn't. He wasn't welcoming me in for A Because my attorney, Joan Carey, advised me Q Ail right. So when you first made contact in January of 2002, from December 17th to January you didn't contact him. Then you did, but you still didn't go. And then sometime in March, when he tried following up to get back to you, you then decided you didn't want to go? A No. It wasn't a matter of not deciding I didn't want to go. It was a matter of the advice of my lawyer not to go at this point. Q And the reason she told you she didn't want you to go to this family counseling? A First she wanted to talk to him on the phone. She wanted to have a conference with him on the phone. And then we would see what would happen with that. She didn't feel it was a good idea for me to be in a counseling session with Dave before our court date. 141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q But the counseling session was for the benefit of your children, to remove some of the stress over the conflicts that you and your husband were having in which they were in the middle. Why would that be bad for the children? A It wouldn't have been bad for me to meet with Dr. Thiessen alone or with the children, but not -- Q Why didn't you do it then? A At the advice of my lawyer. I mean, I don't know what else to tell you about that. I was following the advice of my lawyer. Q He says here further that in his meetings with Mr. Shover it was apparent that Mr. Shover's objectives were, (a), to maintain a loving and structured relationship with his children. You don't disagree with that, do you, that that is Dave's intention? A Sure. Q He next says that Dave's second goal was to support the children's relationship with their mother, that he wants to support their relationship with you. You don't disagree with that, do you? A Yeah, I do. I feel there has been quite a few times of him alienating me from the children. Q Okay. But this is what Dr. Thiessen is saying that the stated purpose of Dave's counseling was. 142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 That's why he is going there? A Okay. From Dr. Thiessen's perspective, yes, I can see that being -- Q And that the third thing is what your ex-husband has been trying to do with this PFA and everything else is to maintain the boundaries of a bi-nuclear family so that you do not interfere in his time with the children. Do you understand that that's what he is trying to accomplish, some way that you will come to some agreement to not exceed the boundaries? These are his concerns. Do you agree that that's his concern? A I agree that that's how he sees that as a concern, yes. Q Okay. Now, and finally he says in his conversations with both children it is apparent that they fear the loss of either of their parents. So isn't it reasonable that your children would say things about Dave to you that they might think you want to hear to carry favor with you? A Q A Q No. I don't believe that. You don't think that? No. I do not. Now, this Exhibit No. 2 that your lawyer has submitted, it is a little prescription note from Dr. Daly, is dated May the 16th of 2002, correct? Is this the first 143 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time that -- when did you go to see Dr. Daly about the problems with anxiety for your son? A Whenever he was there for his last appointment, and then over the phone. It was a phone contact. Q recall? Okay. Amd when was the first time if you A Well, there is many times. I am sure Dr. Daly would have record on his -- Well, I am asking you what do you recall the Q earliest time? A Q I don't have it any longer. This is the exhibit that she asked you some Now, Is that right, 7:40, or is that the And the late bell Well, I get him to school by 7:30. When does school start, isn't it 7:35, and A couple years. Now, if you look at Exhibit 5, which was this report of tardies, do you have it in front of you? Your lawyer showed it to you before. A Q questions about just now. I want you to look at it. when does school start, what is the time? A 7:40. Q No. late bell 7:40? It is 7:35, isn't it? is 7:40, isn't that correct? A Q 144 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the late bell is 7:40? A Q Am I correct in that, ma'am? Yes. Okay. Now, let's just look at these unexcused tardies. All the excused tardies I am not concerned with. Those are the ones you sent notes for. They might be for his anxiety problems. But the unexcused tardies is what Mr. Shover testified he was concerned about. And my count says that there were thirteen here. For example, if he was late at 7:45, that's ten minutes late for class, right? A 7:49, that's a little worse. unexcused? A Q Yes. That's not terrible, ten minutes late. But what about 8:37 And That's an excused tardy. Excused tardy, okay. How about 8:05, I mean, that's not just a few minutes late, is it? You see, the problem that I have is you now have gathered some evidence here, May 16th of '02, try to go back and explain these unexcused absences and tardies. But that's the first time we hear about this from you is today. You haven't said anything to Dave about it prior to then, did you? A Well, there is no communication. Q I understand. You didn't e-mail him anything about Jonathan having problems with his stomach. 145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I have been taking him to the doctor. Nothing like that, right? A No. It was not necessary. Q But now for this hearing now we have something rather current, just a couple of weeks, which is a little handwritten note from Dr. Daly? A Well, you could check with Dr. Daly as far as dates in the past of talking to him. Q Okay. A And, also, I know it was an issue with the secretary not accepting notes, because Jonathan would say, you know, she won't take them. And I went in and talked to the principal. Q All right. Let me ask you this. Would you say that you are much more permissive with the children than Dave is? A Q A Q are? No. You wouldn't say that? No. I would not. So he is not anymore permissive than you A He is more rigid? You are more permissive? A I wouldn't say I am more permissive. He is rigid. Rigid. Would you say you are less rigid? 146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would say I am not quite as rigid. I have flexibility. Q All right. Did Jonathan come to you to get permission to leave the school grounds at lunchtime? A Yes, he did. Q And he is in seventh grade? A Yes. Q And so he has now got permission to leave the school and go wherever he wants to go over lunch? A Yes. Q Can he go to the store or to the video store or anyplace else he -- A There is no video store. Q He can go wherever he wants to go, right? A Yeah. That's a very common thing in the Camp Hill School District. Many kids leave the school building. They actually have open lunch is what it is called. Many children leave lunch and go to Roberto's Pizza. And he wants to join his friends. Q Did Jonathan tell you that he had asked his father first, and his father said no, he did not think it was appropriate for Jonathan to go out at lunchtime, because he could get into trouble, and he didn't want to expose him to that, and his grades weren't good enough? A No. I didn't hear about that until after I heard that he was mad that I gave him permission. 147 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Did you consult with Dave before you gave that permission? A No. I didn't think I needed to do that. Q All right. I believe your direct testimony in answer to Ms. Carey's question was that it would be good if they were in one place during the school year, during the week, if they were at one place. I think that was what you said, isn't that correct? A Consistency through the week? Q Yes. Consistent environment throughout the week for school? A Yes. Q That would be better for them? A Yes. Q And when you looked at that Exhibit 5, could you show me one time on here that there was any tardy or any excused absence where the children were in his custody? There isn't any, is there? It shows the dates, right? Every single time that they have been absent or tardy, unexcused, it has been from your custody? A My children -- Q Ma'am, isn't that correct? A Yes. Q Now, wouldn't it be fair to say that if they were in dad's custody during the school week, that these 148 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 problems would not occur, because they don't occur when they are with him? A They may be more punctual, but they are not going to be healthy emotionally and mentally. Q You saw the exhibits which had the comments from the report cards would say that Lauren goes to school and she is tired. And Lauren goes to school and she is not prepared. And the kids are not doing their homework, and they need to do that. Wouldn't it be fair to say that if they were in dad's custody during the school week that they would get that consistency and the work would be done? A No, I don't. There has been many occasions that they haven't gotten their homework done when they are at their dad's. Many occasions they have gotten things, and, you know, we wanted to go get a history book from their dad's, and we couldn't retrieve that. Jonathan missed assignments. I have had occasions where Dave has actually lied to teachers. Because I have been in to talk to Mrs. Maley and I have also talked to Mr. Hoffman, and he lied about where the book was, and he didn't have his assignment done and so forth. And also an occasion with Lauren not having her assignment done. Q So is it your testimony also that you attend all the sessions for the children in school? 149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A You mean teacher conferences? Q Or any kind of sessions which are for the children from school? A Yes. Q But you missed Lauren's fifth grade transitional meeting last month, didn't you? That's where they had a meeting for the parents because the kids are transitioning from the fifth grade going into the middle school? You didn't attend that, did you? A No. I did not attend. I attended that for Jonathan. And it really wasn't anything that -- I may have had a conflict that evening. Q Okay. But you are working with the children on their responsibilities I think I heard you say? A Yes. Q I also remember your answer to Ms. Carey's questioning that you thought the children's grades were on I think you were referring to Lauren. Did the upswing. you say that? A Q Yes. But her grades over the last three years have gone from the average of nineties three years ago, to the eighties two years ago, now seventies this year? That's not an up -- A I think everything they have been through 150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 over the last three years has definitely had a major impact. I meant upswing as far as within this current year. Q Oh, you meant within this current year? A Trying to get them to understand their responsibilities and so forth. Q And I think you said that her last test -- or not the last test, but the one before that, she had a ninety-seven on in social studies, is that right? And you were proud of that, correct? A Yes. (Whereupon, Plaintiff's Exhibit No. 12 was marked for identification.) Q Who is her social studies teacher? A Mr. Hoffman. Q Now, he teaches math also, doesn't he? A Yes. Q I am going to show you what's just been marked as Exhibit 11. This is a note from Mr. -- what is the social studies teacher's name? A Hoffman. Q Hoffman. Fifth grade math instructor. And he is showing what the last five grades were. And the last one was a fifty-seven. The one before that was seventy-one, and then sixty-one. There is no ninety-seven 151 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here at all, is there? A There is a ninety-three. I am sorry. Q And here is the last test that she got. I don't think I need to mark it, but this is the last test. It is a fifty-seven. That's not passing, is it? A No. Q That's not really an upswing, is it? A No. She didn't show me that. Q Let me ask you to look at what he says then. The first page it says she did fail the test and she got a fifty, and then she came back in. But the second page is what I am concerned with. I want you to look at it and just read that out loud, what the teacher says? A I said how about tomorrow. She said I could do it now. I was taken back but conceded thinking that maybe she had learned the material in the interim. She took it and received a sixty percent. This is material the student had well over two weeks to learn and is really only six definitions. I am very concerned about Lauren's progress. Q So she has had this material, and all she had to do was learn six words, six definitions. She didn't do it. She failed the test. She got a fifty. Then she took it again and got a sixty. And the teacher, that you say you have spoken to, writes here that he is very 152 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 concerned about Lauren's progress? A Yes. Q Now, how is that consistent with what you just testified to the Court? It is not, is it? A Well, I didn't specifically mean in a particular area like social studies. trouble with that subject. Q A I know Lauren has Okay. I feel that they are starting to understand their responsibility. I ask them all the time about their assignments and their projects and their homework. Q You don't really know what they are doing in school, do you? A Yes, I do. Q All right. A The problem with the inconsistency and them going back and forth they don't show you everything. Just like that -- I don't think I even -- I didn't get her paper about that particular -- the meeting that they had at the school. Q Okay. Do you remember calling Dave on his cell phone and explaining that you were upset with him, because he wouldn't talk to you? And you didn't know where Jonathan was, he was supposed to be somewhere else, and you didn't know where he was? And it turns out he was in 153 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 detention for all the unexcused absences. Do you remember that, the phone call to him? A Vaguely. Q Why didn't you know where your son was? Why didn't you know that he had the detentions and that's where he was? A We were supposed to pick him up. I mean, I didn't write this incident down. There is so many of them. And I was supposed to pick him up at a certain place, and he wasn't there. So I thought, well, I will go around to his dad's office, and he wasn't there. Then I felt, well, maybe he is at a friend's house. I went to his friend's house that I thought he would be at. He wasn't there. So then I called his dad. Probably the lack of communication -- Q Excuse me. I am sorry to interrupt you. But when you called his dad, you called him on his cell phone, correct? And where was he when you called him? A I don't remember. Q Wasn't he in school teaching? A No. This was after school. Q Okay. A And I just thought he would know. You know, children are children. And he was supposed to be there at a certain time, and he wasn't there, and he didn't 154 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 communicate with me that he had this detention. Q Well, I thought you said you empty out his bag, and you go through their stuff, and you know everything that's going on with them? do that? A I do try to do that. every night. Why is it you didn't But you can't do that And if he got that detention slip a night that he was with his dad, and the next day I was to pick him up from school, then how was I to know? Q Let's talk a little bit about this video game if you don't mind. What's the name of the video? A Grand Theft Auto III. Q Grand Theft Auto III. I don't watch T.V. that much, but I saw sort of a couple of things about that in the news, where it was very dangerous for children. It did talk about violence, killing police officers, dealing and prostitution. When he got that videotape, you were with him you say? A Yes. Q When you rented it, you were with him? A Yes. Q And doesn't it have a warning on it? Isn't there a warning on it that is a youth warning, nobody under eighteen should rent that? A There was a youth restricted sticker on it, 155 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yes. Q Which means you had to rent it? Yes, I did. So you are the one that rented that for him. Now, then you just testified that you then viewed it with him? A Q it to use -- A Q A Q Yes. And then after that you still let him have A A know, I didn't hide it. dad's. Q I see. No. -- because he took it to his father's house? And I was unaware that he did that. Well, why didn't you take it away from him when you saw that it was inappropriate so that he wouldn't view it anymore? Well, I did. You did? But I didn't know that he took it, and, you But, you know, he took it to his Isn't it correct, ma'am, that on occasion you have called his father, you have called Dave, in a panic saying that you cannot control Jonathan, and that you need him to do something? A No. That was in the very beginning of the 156 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 divorce. Those were times of adjustment and difficulty. We had problems with Jonathan before the divorce -- Q Excuse me for interrupting. But let's clarify that. So the answer to my question is, yes, you did do that at one point in time, is that correct? You did call Dave -- A Yes. For his collaborated effort with me to get Jonathan some help. Q And what you did was you called in a panic saying you could not control Jonathan? A I never said that I couldn't control him. Q And that Dave had to do something to get him into counseling? A I said we need to do something to get him into counseling. Q Wasn't that the basic premise upon which Dave then took steps to get Jonathan into counseling? A No, it was not. There was at least a good year between -- I mean, he never did anything on the lines of counseling until after the PFA when he knew he was going to be taken into court. Q Well, he will get a chance to testify, but I will give you a chance to answer the question first. Isn't it correct that it was in August of 2001 when you made that call, which was when Dave went to Dr. Thiessen to get help 157 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with Jonathan, because you could not control him? A I never told him I could not control him. I told him we need to get some counseling for Jonathan. It wasn't in August that I made that phone call, because he told me that, you know, he would look into it. And I was looking into it. We were both going to look into it. You know, I guess when I communicate with Dave I don't expect him to take that information then and try, you know, to use it against me. I mean, I was talking to him to try to communicate that, look, you know, we need to deal with this. It is not a matter of who can control him and who can't. This is a matter of this child needs some counseling. And Dave did take steps to get him Q counseling? A He apparently got a name from somebody, from the school district. And he gave me that name. That was his step. Q Didn't he then start the counseling with Dr. Thiessen? A No. He did not. Not that I am aware of. That was August 20017 I am not aware that he started counseling until after the PFA, which was in October, when the kids told me that they went to see someone. 158 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Ail right. I am not trying to trick you now, but I am just going to show you Exhibit 11 again. And it says here, the first sentence -- A I realize that's the first sentence -- Q Mr. Shover initiated psychotherapy with me in August of 2001. And this is the time that you communicated to him that Jonathan was out of control and you needed help, am I correct? A Would this be last August? Q Yes. A Then that's incorrect. That is incorrect. It was the August before if it was any. Because I did not talk to Dave after the PFA. Q The PFA was in October. A No. July was the incident that occurred at their house. After that I no longer made phone calls to his home from the time he got married. Anytime I talked to Dave about counseling with the children was long before he got married. It would have been in the year before that. Q Well, I am not saying you are lying. I just would ask you, do you think you might be mistaken because he has all the calls that you left on his message machine recorded? A No, I am not. Because I know that from the time they got married the children were very upset. And 159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they went off on their honeymoon. When they got back, they were with them for like a week or sometime. And that was when I got the phone call from Lauren how upset she was. So I know that from that evening on there was absolutely no communication. So it was not August of 2001. There was times throughout the year before that when maybe Carolyn was just a girlfriend, you know, it wasn't really an issue with Dave and I. We were interacting about the children. And there were times when I would try to ask him about counseling for the children. That would have been the winter of 2000. You know, it would have been in the winter, like February or March of 2000 I had them with Carol Florey. And they were very upset about their dad's relationship. Q Well, that's really a lot more than my question was. It is very instructive. But my question is really this, let's boil it down. Is it correct or not? A It is not correct. Q What's not correct? A I am sorry. Go ahead. I am sorry. I thought you were referring to the August of 2001. Q Okay. Are you ready to hear this? A Yes. Q Is it correct or not that at some point in time, I don't care when it was, after your divorce, that 160 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you said to your former husband that you needed help with Jonathan? A Yes, I did. Q Now, let's go from there. Is it correct also that at some point in time after you said that he then did arrange for counseling? A A long time after that. Q Okay. A There was also a time when -- Q That's all I needed to ask you. You can have the rest brought out by your lawyer. Just hold on a second. Now, you did say something about -- take a break. THE COURT: MR. SMIGEL: THE COURT: I think we are going to need to Yes, sir. Though as a follow-up to that, I don't see anything in Dr. Thiessen's letter that talks about counseling for Jonathan. And since I browbeat Ms. Carey into allowing the admission of this exhibit, I will note for the record that I am disregarding two sentences in this report as being, number one, internally inconsistent. And, number two, because it is inconsistent with the testimony of the mother, who has just testified to something else and is here for cross-examination, unlike Dr. Thiessen. 161 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And those two sentence are these, In early January 2002 I made contact with Ms. Miele by phone. She indicated an interest in participating in therapy but declined, indicating financial constraints. This witness has just testified that she initiated the conversation, that Dr. Thiessen appeared curious as to why she was calling. And I accept that version as opposed to this one. In addition, I indicated it was internally inconsistent. Dr. Thiessen says I had three more sessions with Mr. Shover and the children between January and March. During the course of these sessions, i.e., January to March, it became obvious that her involvement might prove useful. So it is all together logical to me that in January he had not yet reached that conclusion. With that we will take a recess. (Whereupon, a recess was taken.) AFTER RECESS THE COURT: I would indicate that we have about an hour and fifteen minutes left in today. So I assume you want me to talk to the kids today so they don't have to come back again? MS. CAREY: Yes. BY MR. SMIGEL: Q up. Let me try to move quickly and just finish I beg the Court's indulgence. I just want to clean 162 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this inconsistency here with Dr. Thiessen. Ms. Miele, my understanding is that Dr. Thiessen has an answering machine. So when you call, you get that, and he calls you back. Is that what you recall? A Yes. Q Okay. So he says in this letter that in early January 2002 he made contact with you by phone. It didn't say he called you or you called him, just that you got together by phone. Whether you called him and he called you back or whatever, you did talk by phone regardless of who initiated it. Is that fair to say? A What sentence is that? Where is that? Q That's the one the Judge had some concern with, and I am trying to make sure that there -- A I can't seem to find it. In early January -- okay. In early January 2002 I made contact with Ms. Miele by phone. Q Correct. A We were playing phone tag for a long time, but I did initiate the call. Q Okay. So you called him after the conciliation, because we talked about you calling -- (Whereupon, a phone rang in the courtroom.) Q So at the conciliation we talked about it. 163 1 You knew that that was something you were going to do. You 2 were ready to go and do it. Then you called him and he 3 called you back. You called him and he called you back. 4 And then you had this discussion. But the point that I was 5 trying to get at was you had asserted through your lawyer's 6 questions that the reason you didn't attend the counseling 7 was financial constraints. But then in my examination you 8 indicated it really wasn't that, because your mom would 9 pay, it was something else? 10 A When I talked to Attorney Carey about it, 11 she said, you know, I explained to her the initial issue of 12 when Dave had written the paper that said, you know, Jake 13 Thiessen, $55.00 a session, his phone number, he is 14 awaiting your call, at that time when I got that I thought, 15 well, why would I go to a counselor at $55.00 a session 16 when I could go to someone for a co-pay of ten or $20.00. 17 Q May I ask you this? The $55.00 a session, 18 you were aware that that was for the whole session, and 19 that you and Dave would share that somehow -- 20 A No. I was not aware of that at all. I was 21 not aware of being with Dave in the session and that we 22 would split costs. 23 Q And not to belabor it, because I don't want 24 to make this all about that, what you thought, but your mom 25 was going to pay anyway. And a couple of sessions might 164 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have been helpful for the children. So what I wasn't clear on was why didn't you do it. That's the point, is why didn't you do it? A Again, because when I talked to him, the initial conversation that I had with him, I said he was despondent and not interested in giving me any information -- Q You don't mean despondent. Do you mean distant? I mean, Dr. Thiessen, he wasn't sad? A Well, not despondent then, no. I mean, just kind of like -- I don't know how to explain it. Just not interested in giving me any information or confused as to why I wanted to come in. He asked me those questions. Q Okay. So, now, after that, this was in -- is it in January that you had the conversation with him? A It could have been late January by the time we got to each other. Q All right. So it was January. So why, as you have testified here today extensively, if you knew the children were in such distress, why didn't you do whatever you needed to do to see him in a counseling session? We talked about him being the children's counselor. Dave going with them. We talked about him as an acceptable person at the conciliation. And you knew that you were 165 1 going to be needed to participate in family counseling. 2 Why didn't you do it? 3 A I look at the attempt of counseling with 4 Dave strictly and solely based on our Court hearing. He 5 was never interested in any counseling before that. 6 Q Okay. 7 A All of a sudden the kids tell me that they 8 went to this person, and they don't know who he is. And 9 through little investigating or questioning, whatever, I 10 mean, I found out or maybe I asked. I think it was the 11 attorney Abraham who questioned you to find out is this 12 definitely who this is. 13 Q But all of this was before the conciliation. 14 I am just talking about after December 17, when we sat in 15 Ms. Greevy's office, and for about an hour, we talked about 16 the benefits of counseling, about reducing the anxiety 17 level of the children if both parents would participate in 18 a meaningful way, because you couldn't talk to each other 19 any other way? 20 A At the custody -- 21 Q And you were agreeable to go to Dr. 22 Thiessen. He was the one that was selected. And then he 23 made contact or you made contact, but you didn't follow 24 through. And all I am trying to get to is why didn't you 25 follow through? 166 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A MS. CAREY: and answered many times. At the custody -- Your Honor, this has been asked I object. MR. SMIGEL: If you have had the answer, I haven't gotten the answer yet. THE COURT: Well, it could be another hour before we do. MR. SMIGEL: Ail right. BY MR. SMIGEL: Q A Can you just give a succinct answer or not? At the custody conciliation I wasn't aware of the fact that Dave was going to file for custody, at the conciliation hearing. Q You can't get to conciliation until a custody complaint is filed. A I was under the understanding -- THE COURT: It has been my experience that when one has difficulty getting an answer to a question, it is probably because of the question and not so much the answer. Now, what specifically do you want to know and maybe she can figure that out? BY MR. SMIGEL: Q Okay. What I want to know is -- I will start this way. Wasn't there an agreement that you would go to counseling with Dr. Thiessen for the benefit of the 167 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 children that was made at the conciliation? A Yes. I agreed that I would meet with him. Q And is it fair to say that you didn't A It is fair to say that I tried, that I attempted to go. Q And then the last question that I will ask for the last time is why didn't you go? A I didn't go, because when I talked to Jake Thiessen on the telephone he did not seem interested in me being involved in their case, their counseling. I understand your answer. Since this will Q not be -- A In fact, I remember him saying if he wanted me to come to counseling, he was like, is it for you. I am like, well, no, I am trying to be involved with the case with my ex-husband and the children as a family counseling situation. Q Okay. And you are saying now you will do that? A Yes. Q Okay. With Dr. Thiessen or are you insisting on someone else? A I am not insisting on someone else if the financial aspect can be shared if that's who he wants to stay with. 168 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Q Okay. So he would be acceptable if he wants to stay with him, if you share the financial situation? A I think it would be only fair to give me the benefit that I need to meet Dr. Thiessen. I need to see how he responds to the children. MR. SMIGEL: The other thing, Your Honor, just for the record, because I know that you were concerned with it, and I was concerned with what you felt were the inconsistencies. He then says in his last sentence in that paragraph, It was agreed that therapy should be suspended until Ms. Miele was able to participate. Was that the other sentence that you were... THE COURT: No. I am satisfied that that's why he ultimately suspended therapy. I don't think there is a dispute about that. MR. SMIGEL: Okay. No problem now. I am I just have a couple of other questions. moving on. BY MR. SMIGEL: Q When you testified earlier that Dave would never be flexible in changing dates with you, did you mean that literally or figuratively? A Literally. Q Okay. I have two e-mails from you here. I am not going to mark them necessarily, but I am just going to show them to you. I think we have cluttered the record 169 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 enough. I am going to report to you that they say that we have made an agreement to switch. You asked him to switch on March the 4th, but will switch Wednesday for Thursday. That's this You will have the kids Tuesday, March the 2nd. year. And there is another time when you are talking about the wedding. And he agreed that he would switch the weekends on the wedding, but he requested to have the whole summer schedule that you are supposed to give him three weeks in advance. Do these refresh your recollection so that you want to change that answer, that he does in fact cooperate with you and is flexible? A This one right here is in regards to him taking the children on a school trip that he is in charge of. It was my flexibility to let him have the children on a Wednesday when that's not his day. flexibility. That was my This one right here is where he talked about Dawn's wedding. Dawn had contacted me probably February, maybe January or February, I do have the e-mail if I have to prove it. This was the incident that Dave refused to just cooperate. I mean, he was just being extremely difficult. I was surprised to see that he finally conceded, because actually I had to talk to my lawyer about 170 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. I think you are going to need to send a letter to make sure that we get this weekend switched, because I don't want October to come and we end up with another big incident. But he did finally, you know, made the arrangement to switch weekends. And that's also for the benefit of his family for his sister's wedding. When it comes to flexibility for me and my family it is not fair. Q Okay. All right. MR. SMIGEL: Just one second if you would please, Your Honor. I would like to move the admission of all of our exhibits if I may. THE COURT: Any objection? I think they have all been used. So I would assume there would have been an objection at the time. MS. CAREY: Your Honor, in the two huge packets, it has a lot of e-mails in them, I don't know that I actually looked at all the e-mails. And I guess the fact that they are e-mails, and it is not to impute any motives to her, I can agree to the admission. conceding -- THE COURT: MS. CAREY: Ail right. But without Without conceding anything. As long as I can admit my e-mails in a minute. MR. SMIGEL: Okay. Fair is fair. BY MR. SMIGEL: 171 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Now, let me just finish the questions. You indicated that you wanted to stop the e-mails and you wanted to be able to just call him when you want to. Am I saying your testimony correctly? A Call him. We need to both have availability to each other as needed when needed. Q Now, the e-mail communication suggestion came as a result of the PFA hearing, in which the suggestion really was made by the Judge. And there was testimony -- actually not testimony, it is your e-mail where you say it was just a suggestion, and you don't have to follow just a suggestion. Do you remember writing that e-mail? A Yes, I do. Q It is in evidence. So what you want to do is go away from the e-mail and go back to the telephone. And you remember that his complaint was that you would call seventeen times a day incessantly, and that it just -- you just did not know the boundaries of when to stop calling, which is why he had to put a stop to it. What assurance can you give us that you wouldn't do that again? A This is another pattern of behavior that I have had with Dave in the marriage, and I continue to have to deal with now. And I really would appreciate if the Courts could somehow be able to see this and put this to a 172 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stop, because Dave tends to take things and over-exaggerate them and, you know, twist them around as I had stated earlier. Now, when I called his house during that period of time, I have never gone over my boundaries with him or have called excessively or ever tried to harass him or stalk him. I am not that kind of person. I don't do that. Now, I did call somewhat -- not excessively, but daily, a couple times a day that particular week, because he had the kids on vacation. That was the incident with the PFA when I went to the house. I was disturbed, not knowing what to do. I hesitated, but yet I still made the decision. And that was a mistake obviously. But we had never had any legal issues or police issues before. And I thought, well, I will go and be able to talk to the children and talk to Dave and find out if everything is okay. After that evening, of course, there was an incident again. And after that evening he would not let me have contact with the children. And we normally are allowed. And we have had the freedom for him as well to call the children and talk to them at anytime. And he wouldn't answer the phone. Q I understand that. And I remember that was your testimony then as well. But after the PFA, when the 173 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Judge suggested that it would be a good idea to communicate only through e-mail, and it would not be a good idea to continue to come over there without permission when the children were in his care and custody, and the Judge went so far as to say if you didn't stop, he might entertain a custody petition in order to be able to enforce it. After that, when Jonathan came over because he forgot a book, I think the incident was, and he called you, and you were going to see him a half hour later, you still stated the PFA was dismissed. I can come over when I want. And you insisted on coming over, even though it upset Jonathan, to see the two of you in a conflict again. And you came, disregarding the Judge's suggestion that you not do that, disregarding Dave's request that you not do that, and disregarding Jonathan's request that you not do that. Why did you do that? A Well, what Jonathan was upset about was -- Q Let me -- THE COURT: Let her explain. You haven't even let her even try to start. MR. SMIGEL: All right. THE COURT: Go ahead. THE WITNESS: I recall that day. And Jonathan forgot some things at the library. So he went to his dad's house. He called me up. His first initial 174 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 response was he wanted to stay at his dad's and work on his project because his dad had the computer. And I said that, well, that will be fine, and then he can just take you to the game and I will see you there. His dad did not want him to stay. He said it is not my time. You are supposed to be with your mom. And, you know, I could tell in the background that this was his attitude. So I said, Jonathan, don't worry about it. I said I will come get you. Then it was, well, wait a minute, you know. And he is getting upset, but, you know, asking his dad. And he goes, can mom come get me, no. And, yes, I do get concerned that he makes me look like a criminal to my children. It is very degrading. And there wasn't anything wrong with the incident that he happened to end up at his father's so he could give me a phone call, wanted to stay there and work on his project. When I could tell the dissension that, you know, he wasn't going to let Jonathan stay, I said fine, Jonathan, I will come pick you up. No, no. You can't come. house. I said, yes, I can Jon. I will go over to Trina's I said, no, that's fine. We don't have to -- it is almost embarrassing or ridiculous that we have to get a third party involved, and he has to go to a friend's house so I can go pick him up. I mean, there has been no reason 175 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for any of this. So I simply wanted to just go pick him up. I think things need to stay as normal as possible for the children. I think it looks very odd that he has to go to a third party so his mother can pick him up. Q Okay. Weren't you going to see him in a half hour at the game? A I don't think it was a half hour. No. It couldn't have been a half hour, because Jonathan knew he had time. In fact, I think it was most of the afternoon that he was going to be at the library and work on his project. He didn't want to go to Lauren's game. I think that's what it was too. He didn't want to go to the basketball game. He was going to stay at the library and work on his project. And it had to be more than a half hour or he wouldn't have felt he had time to get into his project. Q Okay. So if I understand your answer, and this is my last question, you felt that all this nonsense was not necessary. And regardless of whether Dave asked you not to come, the Judge suggested that you not just come over there when you wish, and Jonathan's request that you not come, didn't mean anything to you? You still felt that you had the right to go there because it was your call. A Jonathan didn't request me not to come. Jonathan asked his dad if I could come. Jon was telling me 176 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that his dad didn't want me to come. I didn't mean that this whole thing has been nonsense in the sense of the Judge's orders. I meant from the previous incident of the whole PFA, all the police calls, all of them have been bogus. MR. SMIGEL: Okay. Thank you. No other questions. BY MS. CAREY: Q Exhibit No. 4. THE COURT: Ms. Carey, anything else? (Whereupon, Defendant's Exhibit No. 4 was marked for identification.) REDIRECT EXAMINATION I am showing you what is marked Defendant's You testified at one point that you have worked with the teachers, with Lauren's teachers. A Yes. Q I believe the father had a concern that you weren't working with the teachers. Do these e-mails include communication with the teachers? A Yes. Q Go to the -- well, the first two, the first two the children were sick. And you were communicating with whom, Randy and Tammy? Are they the teachers of Lauren? A Yes. 177 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct? Q And you were asking for assignments, A Yes. Spelling words, et cetera? Yes. Then the third one Randy, is that the social studies teachers? A Yes. That's Lauren's teacher. Q Lauren's social studies teacher. A Yes. Q You are concerned in that e-mail, correct? A Yes. Q Regarding what? A Her latest social studies test grade. Q Okay. So you too had concerns about her social studies test grades? A Yes. Q And this was in March, correct? A Yes. Q And you were working with the teacher, you asked for some help. And the ending of the e-mail you asked for an appointment, right, to talk to the teacher? A Yes. Well, no. That was if you could let me know in advance about Lauren's major assignments or tests. 178 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And then you made appointments with her to Q talk to her guidance counselor? A Yes. Q The next one is to Tammy. Is that again Lauren's teacher? A Yes. Q And you are talking to her in that one about vocabulary and spelling tests and inquiring about preparing for tests, correct? A Yes. Q And the next one you are talking to Joy, that's the counselor of Lauren? A Yes. Q And Tammy Gift is her teacher. And, again, you are communicating concerns in that one about her eyes and her health? A Yes. Q And then the last one is Jon's teacher or counselor I guess Joe Lazenby? A Yes. Q And in that one you are asking for assignments to be made up because he was sick, the last Yes. Okay. So these are not all of the e-mails one? A Q 179 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 back and forth to the teachers? A No. And, also, I had a lot of phone contact with the teachers. Q But these would be a sampling of the kinds of contacts you had with the teachers. And they are over several months, January, March, correct? A Yes. Q The next one is -- I am sorry it is out of order. But this was what I tried to admit as Defendant's Exhibit No. 3 initially. It is on the back. And they had inadvertently got mixed up. I am showing what you is marked as Exhibit 3 for the defendant. You talked about trying to communicate with David about Jake? A Yes. Q The first three of these e-mails are to David asking for a response about what kind of counseling is happening? A Yes. Q And did you ever get a response from any of them? A No. And I also put in this one at what point does Jake want to see me, because the response from him was that he didn't want to see me. Q In terms of the inflexibility of Dave, there 180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are some e-mails, the next two e-mails, trying to plan the summer schedule. And you were talking about the wedding, switching the wedding, and there didn't seem to be any common ground there? A There was no response about the switching for his sister. Q So he didn't respond, but he brought up another matter? A Q Yeah. He said in order -- yeah. And the rest of it, I mean, there are a few on holiday schedules, which is him just saying what's going to be, correct? A Yeah. And the next one is the one about Christmas. I tried to offer some -- I realized that it was so uneven, but... Q You tried to offer him some extra time? A I tried to offer him some extra time. Q And did he take it? A No. Q And then the next one was a request to switch. Was there any flexibility there? A No. Q Then the next one is around Easter time in 2002. I want to direct your attention to the second paragraph of that e-mail, four and five lines from the 181 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bottom. This is an e-mail from Dave. And what is he accusing you of doing in that last paragraph? Would you just read it? A Again, as he often criticizes my character, he is saying that, In light of the fact that the kids have called me one time since the conciliation hearing three months ago, it seems most inappropriate to teach them the art of harassment by continually calling. He was upset because Lauren was calling him several times because she needed stuff for her speech that she was doing the next day in school, and she wanted to practice. A~d she tried several times to get ahold of him to get this material so she could practice. Q And he blamed you? A He blamed me. Q Is that also a pattern in your relationship? A Yes. Very much. Even through the divorce now. Even to the extent, I mean, the hunting thing, the wedding. I tried to share with him the feelings of the children, and it is always back on me, you know, that's your feeling. Q you about the Grand Auto Theft video. dialogue about that? A No. That's your feeling. And in the next one it is him just telling Was there any 182 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Because why? A Because I feel that he uses -- I just feel with the e-mailing with him that he really doesn't want to communicate for the best interests of all of us. He just likes to be demanding and abusive. Q Sometimes when you feel like there is no reason to respond because... MR. SMIGEL: Objection. Leading. MS. CAREY: All right. BY MR. CAREY: Q A So do you respond to all of his e-mails? I normally do. Lately I haven't, at the advice of my lawyer, saying that if it is a demanding e-mail, you don't need to respond to those. I have been feeling very harassed by his e-mails, I have. And I don't appreciate them. Q Anything relating to a schedule or something like that? A Yes. That's different. But usually it is more very demanding, controlling or criticizing me. Q And then lastly, Lauren is going to him for the weekend, and you are reminding him of the homework assignments? A Yes. Q So you do monitor the things that -- 183 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MS. CAREY: Q MR. SMIGEL: Objection. Leading. So, therefore, you were aware of the A will tell me. spelling and vocabulary tests, is that right? Yes. I always am. And a lot of times they And I say, well, did you study over at your dad's. I mean, I am not saying it is totally his responsibility. But he has the children almost the same amount of time that I do, and the children's grades are suffering from all this stress. I don't know that it is his fault or my fault. I think we both try to work with the children, but I don't know. I mean, I don't know what happens over there. Q And the last one you are keeping him informed about the health of the children? A Yes. Q Okay. And, again, these aren't all, but these are a sampling of the kinds of communication that goes on with the e-mail, is that right? A Yeah. Q There is one thing that I didn't ask you about, and that is in the summertime there was testimony from him that Jonathan -- that you had given him a project -- information about a project that Jonathan had. And you said you didn't want anything to do with it. Is 184 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that how you remember that? A No. No. That never happened. The kids must have had their last day of school with their dad. I remember they went home with their dad on the last day of school. I have been very involved with the children and the school and any papers they bring home and so forth. Apparently Dave did know about the bug project that Jonathan had to do. I wasn't as aware of the bug project throughout the summer, when he really could have gotten the majority of it done, and actually could have done really well on it. It concerns me, and I don't understand, Dave is a very avid outdoors-man. He goes to his cabin. I am really perplexed as to why he didn't spend time with Jonathan over the summer completing this bug project, which would have been very easy to do in the mountains. Q When did you find out it wasn't complete? A About two weeks before it was due. And he says I need twenty bugs, and it is like October. It is cold out. We were going to Center Street, you know, the last hour of daylight, you know, looking through fields trying to find bugs. And when he went with his dad for the weekend, I said, well, go with your dad this weekend and get some more bugs. And he won't take me. That's what I 185 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hear. Q Did you ask the father for the project back or for the papers? A Yes. I did ask him for, you know, when you are done with their papers, their report cards, whatever. I mean, I didn't even notice when I went through their stuff I am missing some of their report cards. Q So for the project, during that specific incident, did you ask him for information? Well, I didn't need to. Then I talked to A the teacher. Q A Did he get it in on time? I talked the teacher into letting Jonathan have one more day. And the best he could get at that point And I believe he got a B. Did you work with him to finish it? Yes. You were read every word here of Dr. Thiessen's letter for the most part. Do you want to just take a look at it again? Do you remember was there any blame? Did Dave ever take any blame for any problem involved with the children in that letter? would be a B. Q A Q Objection. The letter speaks Yes. I can read it. MR. SMIGEL: for itself, Your Honor. THE COURT: 186 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MS. CAREY: Q MS. CAREY: Okay. Regarding the open lunch, is that an everyday thing? A No. No. Q And you gave permission for it one time, two times, several times? A Oh, it is -- actually Trina could testify to it as well. She lives in the district. And this is the common thing that they do. And he would ask me the night before can I have a few extra dollars to go to Roberto's, you know, for lunch this particular day. And I will give him the extra money. Q Did he ever get in any trouble doing that? A No. Not at all. Q And I believe the father was suggesting that the stress between you and him is the contributing -- I mean, the communication or the relationship between you and him was the contributing factor to the stress. From your point of view, what other contributing factors are there, if any? A I really have tried to stay out of Dave's way since he left. Okay. I knew he had a girlfriend then and the whole thing. I tried to approach him about the time that -- I have tried to approach him with how the 187 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 children are feeling. Every time I try to approach him about a concern in a mature parent to parent way, he refuses to listen to the concern that the children have and make it an issue between us. And he makes it an issue, no, that's how you feel. This has been a constant problem. He creates the chaos between him and I. He has created the lack of communication. Now, it has become where Dave and I really don't communicate. It is frustrating at times when you need, when the kids need something or whatever. But now I would have to say that we really don't communicate, and I don't even feel like I am really a part of this anymore. I really feel like it is his issues between him and the children. It is what I have to hear every time they come home. The conflict now is between him and the children. Q Just one other question here. You said that you would try to share the cost. sessions are going to be required. continue to try to share the cost. You don't know how many You are going to I mean, do you have to put a cap on it in some way? you? A Q You don't have a job now, do No. You don't have any prospect of a job right now yet, do you? A No. 188 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q If his insurance could cover it, would you expect that that would happen? MR. SMIGEL: Just for the Court's edification, there is no insurance in this. THE COURT: I doubt that any of his insurance would cover his estranged -- might. MS. CAREY: THE WITNESS: a co-pay of $10.00. MS. CAREY: MR. SMIGEL: If it is family counseling, it Carol Florey accepted it with I have nothing else. If I could have three minutes, just a couple of quick questions. RECROSS EXAMINATION BY MR. SMIGEL: Q Isn't it correct that Dave did not even meet Carolyn, his present wife, until a year after he had left? A To be quite honest, I don't know when he met her. How would I know that? Q Because you said something about his girlfriend, and I didn't want to leave the Court with the impression that there was something with Carolyn as his girlfriend that had something to do with your marriage. A That could be. All I know is he left many times overnight. 189 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. As far as sharing the costs, you do not have a job, and when is the last time that you worked? I worked for World Premiere and was let go A in October. Q Did you work for the school at one time? Yes, I did. Were you fired from that job? Yes. I was let go of that job. Those were two different reasons. Q What efforts have you made to look for any type of work? A I have been making many efforts. In fact, that's one of the reasons why I decided to go back to school, because I have come up against a lot of situations. Q Okay. Is it very important for you to finish your schooling so that you can get a better job? A Yes. It is a goal of mine. Q Wouldn't it be good for you to be able to do that, even on a full-time basis during the week, if the children were in your husband's care and custody, which would be a couple more days than he has now? A No -- Q Still giving you -- A That would not be necessary. If it takes me ten years to get through school, that's fine with me. 190 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q It would still give you the weekends with the children primarily and some time. A No. No. No, thank you. So it is not that important to get your Q educat ion? A It is important, but if it takes ten, fifteen years, I will do it. MR. SMIGEL: Nothing further. REDIRECT EXAMINATION BY MS. CAREY: Q district? A How long did you work for the school Well, I worked for them a year as a school secretary. But before that I did work as a teacher's aid part-time for two years. Q So you have had consistent employment there before you were let A Yes. Q And the reason why you were let go was what? A I have a very good relation with most people in the Camp Hill School District. Although the employment was with Dr. Paul Heely. And he is the elementary principal. And the administration deemed it as a personality conflict. We tried to work it out through several months. And he finally decided he just wanted to 191 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 let me go. Q job that ended... A World Premiere, yeah. They are a small company. And after 911 they wanted to down-size their company. MS. CAREY: I have nothing else. MR. SMIGEL: Nothing else, Your Honor. THE COURT: All right. Very well. MS. CAREY: I need my exhibits admitted, Your Honor, please. MR. SMIGEL: No objection. THE COURT: They are admitted. Okay. I can talk with the children in chambers. BY THE COURT: Q A Q A Q A And that's how they handled it. And you mentioned the other job, the other (The following testimony occurred in chambers with Jonathan and both counsel being present.) So you are for the record, Jonathan, right? Yes. And how old are you, Jonathan? Thirteen. And that puts you in what grade in school? Seventh. 192 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Do you know why we are here today? A Well, the custody thing. Q What custody thing? A Something like a court trial like a battle over time. Q Who you are going to spend time with and your parents? A Yes. Q Did you talk with either of your parents about this custody thing? A Not really. I knew it was coming and all this. Q Did both of them tell you that you would be here today? A Yeah. Q Did you talk with either of your parents about this custody fight that they are having? A Not that much, just like they just told me that I was going to come to court today and just answer the questions. Q A Q A Q Do you ever ask questions of them about it? Yeah, sometimes. Probably curious about your future, right? Yeah. Of course. You are living with mom during 193 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the school week for the most part, am I right? A Well... Q You see dad every other weekend and Tuesdays or either one or two days a week? A Two of the five days a week are with one. And then two of the five are with the other. Q You pretty much stick with the schedule then. Do you think if one or the other of your parents wanted to make a change or add a day or take away a day they would have trouble agreeing about that? A Probably like sometimes they just ask each other like can we switch or change times or something. Q A like, no, I will have them and all that stuff. Q Let's talk about life at mom's house. kind of house do you live in with your mother? What happens when they do that? They are just like one person won't do it, What A It is a townhouse. Do you have a backyard and all that? Yeah. Do you have any pets? No. Do you have a computer at home? Yes. And is this computer in the kitchen that I 194 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have heard about? A Yeah. Well, it is kind of like two rooms combined, like kitchen and dining room, like a little wall in between, and it is a dining room. Q do you? A Q A Q bus? You and your sister have your own bedrooms, Yes. There are three bedrooms in the house? Yes. How do you get to school? Do you take a A No. My mom drives me. Q I have heard some testimony about not getting to school on time or being tardy some days. As a matter of fact, the record I had out there seemed to show quite a few? A Yeah. There was a couple during the beginning of the year. Q How come you didn't get to school on time? A Well, lots of it was my sister. Q So your sister -- A Sometimes. Q Was she doing her hair and stuff like that? A Yeah. My sister was playing with her friends, where like when my mom drops me at school she 195 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 drops her at her friend's house. Her and her friend walk to school together because her school doesn't start until like 8:10 or whatever. Mine starts at 7:30. So it works better. But we all leave at the same time. ~nd sometimes my sister is stalling around, and my mom is telling her to hurry up. And let's talk about life a little bit at What kind of house does he live in? A house in Camp Hill. The house in Camp Hill, is it the home where Q dad's house. A Q you grew up? A Q A Q there? A Q A Q A Q No. I grew up in Marysville. Does that have a yard too? Yeah. Do you and Lauren have your own bedroom Yes. He is remarried? Yes. What do you call her? Carolyn. How do you and Carolyn get along? you think about her? A I don't really like her. Q What do A lot of people here are lawyers, and they 196 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 understand, and they are not going to go out and blab everything that you say. She is just taking this down. can read it later and remember what everybody said. You don't have to be afraid to answer my questions. I don't really like her being around that A much. Q A How come? Well, somehow it seems like she changed my dad a little bit. He used to be real fun and stuff. And sometimes when he takes me hunting and hiking and when he would go other places he is like real fun. He is like a whole other person whenever she is around at home. He is a lot different. Q A And how does she treat you? Like too strict. She is like always yelling at me and stuff like that. Q Do you think if you wanted to talk to a grown-up about something important that you would go to her? A Q Probably not. And speaking of talking to grown-ups, though you are almost grown-up yourself, if you do feel you need to talk to somebody, who do you feel more comfortable with, your mom or your dad? A My mom. 197 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I have heard about this hunting. Do you Q like to go hunting with your father? A Well, it all depends. Like I like hunting, but sometimes I have to miss other things that I planned and stuff. It all depends. Q There was kind of a problem about hunting camp or something where your dad wanted you to go for a longer period of time? A Yeah. He wanted me to go for a whole week or a week and a half or something up to deer camp or whatever, but I had like all this -- I forget -- it was on my mom's time or something like that, and we already had plans to go to Williamsport to see her family or whatever. And it was just like I like going hunting, I don't like going for a real long time. We stayed home. But then the week after I went with my dad. So we still went. Okay. What do you hunt, deer? Deer, turkey, grouse. What sort of weapon do you use? A .22, a shotgun and a .33. You can shoot all those things yourself? Yes. Did you ever hit anything? Yeah. What did you get? Q 198 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Like a squirrel. You are welcome to come over to my house. I have only gone deer hunting like because I am just old enough to carry a gun because you can't go. The only other time I went deer hunting was last year. We didn't see anything. The other years my dad got stuff but I wasn't able to carry a gun. Q So you are just starting down that road. Let's talk a little bit about school. What are some of your favorite activities at school? Are you involved in any sports? A Yeah. Baseball, basketball, football, all that stuff. Q You play all those. Any other clubs that you belong to? A Not really. Q So basically your activities are sports activities? A Yeah. Like you mean like outside of school but like in the school? Q Well, let's talk about either. It doesn't matter. A What do you mean, like class? Q Well, we can go there too. What is your favorite subject? 199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 math. A I don't know. I like history, science, Q How would you say that you are doing in school right now? A Fine. Q You think so? A Yeah. Q Do you agree that your grades have gone down in the last couple of years? Is that a fair statement, or isn't that the way you see it? A They have gone down a little bit, because like it is getting harder. But they have gone up the last like three report cards. card. Q They have gone up every report And do you think that you are pretty good about doing your homework? A Yeah. Because lots of kids they just like let it go and don't do it, or they do it real late or the next morning. school. Q A Q A Q I just do it as soon as I get home from Is that your mom's rule? Well, both. They both have that rule? Yeah. That you do your homework before you do 200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anything else when you get home? A Yeah. Q Do they check your homework that it is done? A Yeah. But sometimes like there are exceptions. Like if I had a baseball game at 3:00 and I just got home from school, I do it after the game. Q I have heard your mom's testimony today that occasionally you have a little anxiety about some things and even have gotten some stomach pain and the like. Do you know what I am talking about? A Yeah. Q What is that about? A Well, it is like sometimes I get so like upset about -- like just switching back and forth. I will be with my mom for a long time, and then the night before I go to my dad's I will get upset or something. Q Can you put your finger on why that is? A Sometimes I will be like at my mom's and I won't feel like going to my dad's, but I will have to. Q Is it ever the other way around, you are at your dad's and you don't want to go home? A Not really. Q When you are at your mother's and you are anticipating going to your father's, you have that problem? A Yeah. But not all the time, just sometimes. 201 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Not all the time? Not every time. Okay. Lots of times. Well, when you are at your father's house, do you make phone calls to your mother? A We are allowed to make one phone call per night before 8:00, but like he is like real strict. Like sometimes we call and she doesn't pick up or something like that or it is busy or something, so we hang up. My dad will consider that one call and won't let us call back again. Q Do you understand the responsibility to decide what to do in these situations is up to me, not up to you? A Yeah. Q So you are not the one that has to feel any pressure. And I am not going to ask you that silly question of who do you want to live with. But I will ask you this, if you were king of the world, and you could change something about this custody situation, what would it be, if anything? A would change? Probably the schedule. Okay. Tell me about the schedule that you 202 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Because really like in the week it is Monday mom's, Tuesday dad's, Wednesday mom's, Thursday dad's, Friday mom's. It is like switch every day. And sometimes like I forget a book at one house, or like I have a big project to do, I can't do it at both houses, because I have to take it to school. So really when he says you have like twenty days to do it, I only have ten, and stuff like that. Q so you wouldn't be back and forth during the week. Where to your way of thinking would you be? A You mean if I had to be at one house every week? Q Yes. A Probably my mom's, but like I could be like at my dad's like one day of the week or something, but not like every other day be switching and stuff. Q Okay. So currently it is -- give me these days during the week, Monday to Friday how does it change under the current situation? Maybe I misunderstood. A Every Monday I am with my mom. Every Tuesday I am with my dad. Every Wednesday I am with my mom. And on Thursdays, because the weekends alternate every other weekend, like I am with my mom one weekend. But then on Thursday, whoever gets me Thursday, the other person gets me for the weekend. If it is my mom's weekend, Thursday is like the alternate day too. 203 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. I understand now. There was some videotape that they were talking about out there, Grand Theft Auto II or III, do you remember when that got rented? A Got rented, the beginning of April I think. Q Okay. Was that your birthday? A Well, my birthday is the last day of March. I think I got it right after. Q All right. A It was a video game. Q Why did you pick that particular video game? A I played it before. Like my cousin has it. And like if you took a survey, nine out of ten kids would have played it before in school. Q You didn't want to be this rare kid that didn't have it? A No. I didn't buy it. I just wanted to rent it. Q I think I understand. All right. I have asked you a lot of questions. Any questions you want to ask me? MR. SMIGEL: You don't often get a chance to ask a Judge questions. JONATHAN: What could happen? BY THE COURT: Q Well, that's a very good question. I think 204 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what I am being asked to decide is with whom you spend most of the time during the school year. That's the situation, whether anything should change. That's why I wanted to find out what you thought. A Because I like being at my mom's house better than my dad's. We have more freedom to like -- there is a lot of boundaries. Like we are not like kids on the loose or anything. But at my dad's we can't do anything. And he never lets us go to friends' or go outside or anything. We always have to like stay inside. And I am always in trouble. Q When you get in trouble, what does he do? A You mean my punishment? Q Yes. A Either grounds me or have to go to my room. Q I heard something about having to sit and look at the wall. A It was something like we were in church, and like all I just said was -- I don't know what I said. Could you hand me a pencil or something stupid. And he threw a fit. I had to go to the basement for two hours and sit in the basement for two hours with the lights out. My sister was upstairs. And she like kept telling my dad how thirsty she was. Like my dad, like she said he purposely got a drink and started drinking in front of her, and then 205 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 she had to sit for two and a half hours. Q So you feel your dad is too strict? A He never let's me do anything. Q Do you have chores at your mom's place, things you are expected to do? A It is not like a written chart where I have to do, but when she asks me something, she will ask me to take the trash out, clean up my room or vacuum the floor or something like that. Q Ail right. How about your dad's house, do you have any chores there? A It is like the same thing with him, lots of stuff I have to do myself. Because like she is -- like Carolyn has this cat, and it is not even a pet cat. She was driving home and saw it on the side of the road and picked it up, thought it looked good or something, and it sheds like no cat you ever saw. Like if you sit in a chair when you stand up, it is like all this hair flies. It is like a wild cat. You should see the hair lifting up its back. And I have a blue bedspread, and it is white everyday when I go there. Q A they see it. their house, That cat really sheds? It is crazy. Like no one believes it until Because my cousin, they have like ten cats in you never see a hair. Maybe it is like crazy. 206 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q allergic. A here it itches. Q do you? A Q your sister. I would be very allergic. I am very Like my eyes itch all the time. Like right I don't know if I am allergic. You don't have asthma or anything like that, No. I need to leave a couple minutes to talk to Maybe these attorneys have some pointed insightful questions? BY MR. SMIGEL: Q When your sister is keeping you from 9etting to school on time, she doesn't do that when you are at your dad's though, does she? A Well... Q You are not late when you go with him? A That's because my sister doesn't have to leave as early because we live closer to school. But she is like -- I don't know. Lots of times -- I haven't been late for like the last two marking periods though because we were being late. But our school is like really strict. Like sometimes I would walk in as the bell rang, and they would tell me to go get a pass. THE COURT: The late bell? JONATHAN: Yeah. Like lots of times. But 207 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 like my mom says you really have to start getting up earlier and stuff. We started doing that. I can't remember the last time I was late. It has been like two marking periods. THE COURT: Don't worry. I won't tell your sister. You have my word. I won't tell your sister you blamed it on her. Anything else? Ms. Carey, anything? MS. CAREY: I think not. THE COURT: Good enough. hope you have a good school year. done. Good luck. I The year is almost BY THE COURT: Q A Q A Q A Q JONATHAN: THE COURT: Seven more days. Not that you are counting. (Jonathan was excused.) (Whereupon, Lauren was present in chambers with the Court and counsel.) Lauren, you are how old? Eleven. And you are in the fifth grade, right? Yeah. So you will go to middle school next year? Yes. And so your situation is you basically stay in the same classroom, you don't move around? 208 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I only switch two different classes so you can get ready for sixth grade. I have one language arts teacher and the other math and social studies. Q They are kind of phasing you into the sixth grade operation? A Yes. Q Do you like school? A Yes. Q How do you think your grades are? A Not so good. Q Can you give me a reason for that? A Well, it is mostly my fault, because I don't like -- I don't really feel like studying that much because I really don't like to study. And the only time I have gotten a hundred or higher was when I like studied the entire night. I was lazy in the fifth grade too. Q But you get an A for honesty. That's a good attribute. I have heard some testimony about you guys being -- well, you are not tardy for school, are you, because your school starts later than your brother's? A Yes. Q So you don't have a problem with that. Have you talked to your mom, or has your mom talked to you about this, not liking to study and about your grades? A She tells me that I should study more, I 209 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 should read ahead of the other people. When it comes to studying I should have already read the chapter or something like that. And she like encouraged me a lot to study. Q What about your dad, does he encourage you also? A If I have a test coming up or a big test or a quiz or something, I will do it on my own. I will tell him about the test. I will study whatever I feel like and say that I did or something, but that's also not good. Q I have heard a lot about your situation from your brother. I am not going to go over everything. It doesn't mean that your opinions aren't important. I don't need to hear it two times. I want to find out whether there are some things that you agree with him about or not. First of all, let me ask you do you know why you are here today? A Yes. Custody. Q Can you put it in your own words? A Okay. My dad wants primary custody of us because my mom already has it. Q What does primary custody mean? It means like three-fourths of the time. More time than the other, not primary custody? 210 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Where did you learn that? Well, I can tell -- I sometimes learn about court and judges and stuff. Q A Q situation? A Q situation. A Q that you do at school? A Do your parents talk about it too? No. Does either parent talk to you about the No. They just tell me what it was about. And so let's get back to the school What are your favorite subjects at school? Math. And do you have some favorite activities Music, gym and art. That runs the gamut. about your homework. A Q A both houses. Q A Q stuff you have to do? My homework? Yes. Do you have rules I have to do it right away when I get home Do either parents check on the homework? Yeah. At your mom's house do you have chores, 211 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Carolyn? A Q A A Yes. Like we don't have assigned chores or anything, but when we know that we have to do something we will do it. If my mom asks, we don't whine or groan or anything, we do it. At my dad's house, he like doesn't make us do any chores and stuff. But when he does, it is always like polishing the living room furniture and stuff. And my brother asked him for money, and he always says no. Q Do you get an allowance from either parent? A No. My mom usually gives us money for whatever we need. My dad never gives us any money. He is married to a woman, you call her Yeah. How do you get along with her? Not really well. It is not just because she is a stepmom, but she is rude and stuff. And I feel like she is actually controlling my dad. Because my brother gets sent back to his room sometimes during dinner time. And Jonathan will be like yelling, dad, how much longer, can you let me out so I can eat dinner. And my dad would be about to answer, and Carolyn would be clutching his arm to tell him not to. After we pray at dinner she would pinch him and he would say, oh, what a marvelous dinner you made. She would make him say that. Q What has your brother done to get sent to 212 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 his room? A Like sometimes he will come to the table and like banging his finger on the table or something. And you could barely hear it. And my dad will send him back. My dad will get sick of it and send him back. Q If you misbehave, does she have any punishments? A She grounds us from AOL. I am really into AOL because I have Instant Message. Q America Online? A Yeah. And she will like ground us from the computer. She will ground us from friends for awhile. She will ground us from T.V. Q How about your dad, what would he do? A He like makes us sit in front of a wall for like an hour. And if we talk or say anything to ourselves or make a noise or look the other way or fall asleep or anything, he will make us stay for extra time. I got stuck for staying four hours in front of a wall. Q Whatever happens in this hearing, of course, is what I decide, do you understand that? The burden is not on you. But you see your dad on Tuesdays and some weeks Tuesdays and Thursdays and every other weekend. A Yes. Q Is there anything about the situation that 213 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you would change if you were queen of the world? A Okay. I don't really like sleeping at my dad's house. I don't feel safe there, because they lock their doors at night. Like the front door and the living room door and stuff and the back door. But if somebody were to actually get into to the house, they would come to me and Jonathan's room first. Not because we are the first rooms on the hall but because my dad's room is always locked. If there is a burglar or a killer, he wouldn't have enough time to get to us. Q These locks that they have, when they lock the door, are they locked with a key, and then the key is taken out? In other words, you can't open the door from the inside? A No. It is not a key. I don't think I have never seen... to? Q You could get out of the house if you needed A Yes. Q For a fire or something like that? A Well, he would have to get the key, because the key on the doors like the living room and front door they have dead bolts. Q That's what I meant. A I thought you meant his bedroom. 214 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q They have a dead bolt? Yes. Q Okay. A Sometimes I don't feel safe, because Carolyn she used to tell me that there was someone after her. And she keeps an ax underneath her bed, which makes me feel really uncomfortable. Q I can understand that. We have sort of run out of time. And I think I have run out of questions anyway. Is there anything you want to ask me? A Well, I was wondering about tonight, after today, I would like to be with my mom tonight and not my dad. Q Well, I understand that. But I think before I make any changes I am going to have to hear the testimony and all that stuff. But maybe the lawyers can convey that back to their clients. Anything either of the lawyers want to ask? BY MR. SMIGEL: Q One short question. What's your bed times at both places, Lauren? A My mom's house it is -- I can go to bed at 8:45 and either have the choice to go right to sleep then or I can just read a book, but I only have until 9:00. And then she comes in and makes sure I am sleeping or tucks me 215 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in or whatever. My dad's house it is straight at 9:00. you are a minute late, then a minute earlier the next night. And he won't let us get up and get a drink or anything after 9:00. BY MS. CAREY: If THE COURT: Ms. Carey, do you have anything? Q Do you feel comfortable asking for snacks or anything like that? A Well, I know they have snacks back there. Back where? A They have a back room that we are restricted to go in. And the back room -- in my brother's room there is a window that leads to the back room, but she purposely put her desk right in front of it. There is like a little slightly open window part that we can look through. I have looked through it. All I saw was junk food and snacks and wine and soda and stuff. And I know they have junk food and stuff. And when we go to our closet, we have these little baggies. And we have like three things in it. Like a chewy bar and a soggy apple and stuff. They each have individual names on it. And inside of the packet there is a name written on it. And like if one of us were to steal the other person's, you would find out. And they don't let us have anything except milk, water, juice and rotten 216 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 apples and rotten oranges and stuff. There is really nothing to eat there. THE COURT: Okay. Thank you. You can out, and thanks a lot. (End of proceedings) 217 CERTIFIC__ATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. Barbara E. Graham Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Da6e N~~~ ~d~ce~aS~ DJistrict 218 DAVID C. SHOVER, PLAINTIFF V. ~ .. MICHELE R. MIELE, : DEFENDANT : : IN THE COURT OF COMNION PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA .. No. 01-6098 CML ACTION - CUSTODY CERTIFICATE OF SERVICE I, Pete M. Monismith, Esquire, hereby certify that a tree and correct copy of the foregoing Subpoena to Produce Documents was served upon the following by hand delivery, at Camp Hill, Pennsylvania on this 21st day of August, 2002: Dr. Herd Herd-Carver Clinic 2704 Market Street Camp Hill, PA 17011 Pete M. Monismith, Esquire I.D.# 84746 LeRoy Smigel, Esquire I.D.# 09617 River Chase Office Center, 3~a Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff COUNTY OF CUMRERLAND TO: Fq,a Je File No. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANTTO RULE 4009.22 Dr. Herd of Herd-Carver Clinic (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Verificatio~ of employment by way of paystubs for Michele Miele at Smigel, Anderson & Sacks, T.T.P, 4431 N. Front Street, Fnrrisburg, PA 17110 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name Pete M. Monismith, Esquire Address: Smigel, Anderson & Sacks, 1'.1'.p 4431 N. Front Street, Harrisburg, PA 17110 Telephone: 717-234-2401 Supreme Court ID # 84746 Attorney For: Plaintiff Date: .20¢ .2._ Seal of the Court BY THE COURT: Prothonotary/Cler~ Civil Division Deputy (Eft. 7/97) DAVID C. SHOVER, Plaintiff VS. MICHELE R. MIELE, Defendant AND NOW, this supplemented to provide that: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-6098 CIVIL CIVIL ACTION - LAW IN CUSTODY ORDER day of September, 2002, our order of August 27, 2002, is 1. The father shall provide the transportation for transfers of custody by dropping the children off and picking them up at the mother's residence. 2. At no time and for no reason shall either party enter the residence and/or automobile owned or occupied by the other. 3. The children shall be allowed reasonable telephone access to either parent at any time. 4. The parties are encouraged to participate in at least six months of co-parenting counseling with Jake Thiessen and to share equally the cost of said counseling. 5. The parties shall keep each other informed of pertinent information regarding the children such as medical treatment, school activities and assignments. Nothing herein shall prohibit the children from having free access to either parent's home for the purpose of retrieving personal belongings or school materials. BY THE COURT, Leroy Smigel, Esquire For the Plaintiff Joan Carey, Esquire For the Defendant :rlm