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Home My WebLink About08-2929NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, : IN THE COURT OF CO ON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW KELLY J. DUNN, : NO. 08 - X ?-! CIVIL TERM Defendant : IN CUSTODY COMPLAINT FOR CUSTODY NOW comes the Plaintiff, Bryan T. Dunn, by his attorney, Nathan C. Wolf, Esquire, and respectfully represents as follows: 1.) Plaintiff is Bryan T. Dunn, (hereinafter "Father), an adult individual, ose legal residence is 1874 Douglas Drive, Carlisle, Cumberland County, Pennsylvania. Father's address is P.O. Box 281, Carlisle, Pennsylvania, 17013. 2) Defendant is Kelly-J. Dunn, (hereinafter, "Mother"), an adult individual, ' vho resides at 1874 Douglas Drive, Carlisle, Cumberland County, Pennsylvania 17013. 3) Father seeks an order granting shared legal custody and primary physical !ustody of the parties minor children, namely: Name Present Residence Christopher Bryan Dunn 1874 Douglas Drive Carlisle, PA 17013 Katharine Elizabeth Dunn 1874 Douglas Drive Carlisle, PA 17013 Ap 3 years 34/26/1995 years B 10/18/1999 4) Mother and Father are the natural parents of the children. 5.) The children were born of the marriage of the parties. The children custody of Mother pursuant to a consent decree entered in a Protection From Mother at Docket 2008-2673 which provides for temporary physical custody Mother with Father being entitled to periods of partial physical custody with The children have lived in the primary custody of both parents until the parti 21, 2008. Since the entry of the Temporary Order on April 25, 2008, Father the children but such contact has been limited by Mother. 6.) The parties were married July 15, 1995, but separated on April 21, 7.) There has been no prior order for custody entered in this case. 8.) Father has not participated as a party or witness, or in another ca concerning the custody of the children in this or another court, except as herein. 9.) Father has no information of a custody proceeding concerning the court of this Commonwealth or any other state. 10.) Father does not know of a person not a party to the proceedings who of the children or claims to have custody or visitation rights with respect to the 11.) The best interest and permanent welfare of the children will be sere relief requested herein because the Father has been involved in the children's separation, and Mother has indicated that she intends to remove the children i and relocate to Coudersport, Potter County, Pennsylvania or Bradford, McKe; Pennsylvania. 12.) The children have resided in Cumberland County since June 8, 2007 ire presently in the Abuse action filed by of the children to Father by agreement. ?s' separation on April Las had contact with in other litigation in paragraph 5 pending in any physical custody children. by granting the yes until the time of m the jurisdiction County, therefore Cumberland County has jurisdiction over custody. 13.) The children have friends in the Carlisle area and are involved in activities which would be permanently disrupted if Mother pursues relocation. 14.) The older child suffers from a significant developmental disorder fc r which he receives special educational opportunities in the Carlisle School District, which Plain?iff believes would not be available in the school systems where Mother seeks to relocate. 15.) Father seeks to be an active part of the children's lives and cannot 0 so if the children are relocated out of the area, due to his employment. 16.) Father maintains two full-time employment positions as a paramedi? providing emergency medical services throughout Cumberland County. I 17.) Father is also a Deputy Game Warden through the Pennsylvania Sta?e Game Commission. 18.) Mother is an unemployed homemaker whom Father has continued to provide financial support to following their separation. 19.) Father is unaware of any employment opportunities for Mother if sh moves to Bradford or Coudersport. 20.) The children have indicated a strong preference to be in the primary custody of Father. 21.) Father maintains a stable household and has suitable employment so that he can provide an appropriate environment for the children. 22.) Father's extended family resides in the area around Father's home and children will have a strong family support system in place if the Court grants the relief reau sted. 23.) Particularly because of the older child's age, it is respectfully submitted that his preference should be granted great weight and therefore the relief requested should be jzr ted. 24.) Father submits that if granted the relief requested, he would reinforce the relationship between the children and Mother. 25.) The Honorable Kevin A. Hess is the judge assigned to the PFA 2673. to encourage and at Docket 2008- WHEREFORE, for the reasons set forth herein, Plaintiff Bryan T. Dunn, i the Court enter an order confirming shared legal custody to the parents, pro: removing the children from the jurisdiction pending further Order of Court, schedule for primary physical custody of the children to the Father and a sch custody to the Mother, or, in the alternative, an Order providing for shared 1 children to the parents along with granting any other relief the Court deems Respectfiilly submitted, WOLF & WOLF, May ?, 2008 BY. NA3??2?N WOLF, ESQUIF Atto or Plaintiff 10 West High Street Carlisle, Pennsylvania 17013-29: (717) 241-4436 Supreme Court I.D. No. 87380 'cdullyrequests that ing Mother from establishing a e for partial physical cal custody of the VERIFICATION I do hereby verify that I am the plaintiff in the foregoing action and that the facts set forth in this complaint are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unworn falsification to authorities. May 2008 Bryan. Dunn NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, : IN THE COURT OF CO] Plaintiff : CUMBERLAND COUNT V. : CIVIL ACTION - LAW KELLY J. DUNN, : NO. 08 - a t?a?1 CIVIL Defendant : IN CUSTODY CERTIFICATE OF SERVICE ION PLEAS OF PENNSYLVANIA I, the undersigned, hereby certify that on the date indicated below, I ca ed the foregoing Complaint for Custody to be served upon the Defendant, KellyJ. Dunn, by rna?ling the same via Fast Class Mail, addressed as follows: Kelly J. Dunn 1874 Douglas Drive Carlisle, PA 17013 Dated: May ? 2008 WOLF & ?r* g O W ? b n C FZ- rnr ? C c? rao a E ?) c-n BRYAN T. DUNN IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. KELLY J. DUNN DEFENDANT 2008-2929 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Wednesday, May 14, 2008 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Monday, June 16, 2008 at 8:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ ac ueline M. Verne Es . Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites 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 or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY 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 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 SC •I Wd SI ANBOOZ Adri,P OrHi ;d'd 31HI J0 X01,-i +-Q31fJ 4 MAYS 6 2008 e-' BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2008-2929 CIVIL ACTION - LAW KELLY J. DUNN, Defendant : IN CUSTODY ORDER OF COURT AND NOW, this .30..E day of , 2008, upon consideration of the attached Custody Conciliation R ort, it is ordered and directed as follows: 1. A Hearing is schediVled in Co ,pRoom No. , of the Cumberl d County Court House, on the d4 day of , 2008, at 4 o'clock, &. M., at which time testimony will bet en. For purposes of this Hearing, the Father shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be expected to testify at the Hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least five days prior to the Hearing date. 2. The custody provisions of the Order of Court dated 02 8 , 2008 at Docket No. 08-2673 are hereby vacated. 3. Pending further Order of Court or agreement of the parties, the following shall remain in full force and effect. 4. The Father, Bryan T. Dunn and the Mother, Kelly J. Dunn shall have shared legal custody of Christopher Bryan Dunn, born April 26, 1995 and Katharine Elizabeth Dunn, born October 18, 1999. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the Children's general well-being including, but not limited to, all decisions regarding their health, education and religion. Pursuant to the terms of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the children including, but not limited to medical, dental, religious or school records, the residence address of the children and the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. Both parents shall be entitled to full participation in all educational and medical/treatment planning meetings and evaluations with regard to the minor children. Each parent shall be entitled to full and complete information from any physician, dentist, teacher or authority and copies of any reports L.Lr?lr `'r?4? y o11Z given to them as parents including, but not limited to: medical records, birth certificates, school or educational attendance records or report cards. Additionally, each parent shall be entitled to receive copies of any notices which come from school with regard to school pictures, extracurricular activities, children's parties, musical presentations, back-to- school nights, and the like. Mother shall have primary physical custody of the children. 6. Father shall have the following periods of partial physical custody: A. May 31, 2008 from 12:00 noon to 5:00 p.m. B. June 7 and 8, 2008 from 9:00 a.m. to 5:00 p.m. on both days. C. Beginning June 21, 2008 alternating weekends from Saturday at 9:00 a.m. to Sunday at 5:00 p.m. Father's overnight periods shall be exercised at his sister's home. D. Such other times as the parties agree. 7. Neither party may permanently relocate the children outside of the jurisdiction without prior Order of Court. 8. Transportation shall be shared such that the parties shall exchange custody of the children at the North Middleton Township Police Department. 9. The parties shall cooperate with counseling for the children to include Domestic Violence counseling and counseling at Holy Spirit Hospital if covered by health insurance. 10. The parties shall not attempt to induce the children to live with them by promising them anything. The parties shall also insure that third parties do not attempt to influence the children's preference in this manner. 11. Neither parent may do or say anything or permit third parties from doing or saying anything that may estrange the children from the other party, or injure the opinion of the children as to the other parent or which may hamper the free and natural development of the children's love and respect for the other parent. 12. The parties may modify this Order by mutual agreement. In the absence of mutual consent, the terms of this Order shall control. BY TH OURT, J. cc: Nathan C. Wolf, Esquire, counsel for Father ?Douglas G. Miller, Esquire, counsel for M her Cope ec rnc,; t LcL SJ?/? MAY E 82005 BRYAN T. DUNN, Plaintiff V. KELLY J. DUNN, Defendant PRIOR JUDGE: Kevin A. Hess, J. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2008-2929 CIVIL ACTION - LAW : IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT 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: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Christopher Bryan Dunn April 26, 1995 Mother Katharine Elizabeth Dunn October 18, 1999 Mother 2. A Conciliation Conference was held May 28, 2008 with the following individuals in attendance: The Father, Bryan T. Dunn, with his counsel, Nathan C. Wolf, Esquire, and the Mother, Kelly J. Dunn, with her counsel, Douglas G. Miller, Esquire. 3. The Honorable Kevin A. Hess previously entered an Order of Court dated 2008 in a PFA action at Docket No. 08-2673 providing for Mother to have primary physical custody with Father having periods of partial physical custody as the parties can agree. 4. Father's position on custody is as follows: Father seeks shared legal and primary physical custody. Father believes Mother wishes to return to live with her parents in McKean County. Father does not agree with the relocation of the children. He believes that the children are receiving a better education here, that if Mother and children lived with the maternal grandparents they would be entering a third school district in three years and that the area Mother wishes to relocate to is economically depressed, that Mother does not have a job to return to and she has not looked for a job in this area. While Father is currently living with his girlfriend, if he was awarded primary physical custody he would find housing in the same school district that the children are currently in. Mother's lease expires at the end of June and Mother has not located alternate housing in this area. Father's overnight custody will be exercised at his sister's home. 5. Mother's position on custody is as follows: Mother seeks shared legal custody and primary physical custody and wishes to relocate to McKean County to temporarily live with her parents. Counsel for Mother intends to file for a Gruber hearing to be heard at the same time as this matter. Mother maintains that Father has an anger management problem which he is currently treating for at Holy Spirit Hospital, and that Father has never had physical custody of the children overnight without Mother being present. Mother also contends that Father works 2'/z jobs and is rarely available to care for the children. Mother intends to look for employment and alternate housing when she moves in with her parents. The alternate housing would allow the children to attend the same schools they attended a year ago. Mother claims she cannot afford the current rent and that her lease expires at the end of June, necessitating relocation. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing and granting shared legal custody, Mother having primary physical custody with Father having alternating weekends. It is expected that the Hearing will require one day. Date cq ne M. Verney, Esquire Custody Conciliator BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW :2008-2929 CIVIL TERM KELLY J. DUNN, Defendant : IN CUSTODY AFFIDAVIT OF SERVICE On the day of , 2008, I, Traci D. Smith, served Marie Cook Secretary of George L Ebener & Associates an authorized agent for Sue Stewart with the foregoing Subpoena by: hand delivery . I verify that the statements in this Affidavit of Service are true and correct, I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unworn falsification to authorities. Date: /?-Q -015 e^a ? -''? ?' ? ? ?. _r,; q't" r ...,.A ': ^C:+ ' ?° r ??' ;? ?* BRYAN T. DUNN, Plaintiff, V. KELLY J. DUNN, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW :2008-2929 CIVIL TERM : IN CUSTODY CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant, Kelly J. Dunn, certifies that: 1. a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, 2. a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, 3. no objection to the subpoena has been received, and 4. the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. IRWIN & McKNIGHT Date: -6 ( -7 / 005( DoWglas Cpl Miller, Esquire 60 West Pomfret Street Carlisle, PA 17013 717 -249-2353 Supreme Court I.D. No. 83776 Attorney for Defendant 3'G ON BRYAN T. DUNN, Plaintiff, V. KELLY J. DUNN, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW :2008-2929 CIVIL TERM : IN CUSTODY CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant, Kelly J. Dunn, certifies that: 1. a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, 2. a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, 3. no objection to the subpoena has been received, and 4. the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. IRWIN & McKNIGHT Date: 8/13/08 c Don as Miller, Esquire 60 West Pomfret Street Carlisle, PA 17013 717 -249-2353 Supreme Court I.D. No. 83776 Attorney for Defendant D -:. w ??ce J BRYAN T. DUNN, Plaintiff/Respondent, V. KELLY J. DUNN, Defendant/Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : 2008 - 2929 CIVIL TERM IN CUSTODY PETITION FOR SPECIAL RELIEF AND NOW, this 18th day of August, 2008, comes the Defendant/Petitioner, KELLY J. DUNN, by and through her attorneys, Irwin & McKnight, and presents the following Petition for Special Relief and Contempt, averring as follows: 1. The Petitioner is Kelly J. Dunn, an adult individual currently residing at 351 West North Street, Carlisle, Cumberland County, Pennsylvania 17013. 2. The Respondent is Bryan T. Dunn, an adult individual now residing at 1874 Douglas Drive, Carlisle, Cumberland County, Pennsylvania 17013. 3. The parties are the natural parents of two (2) minor children: Christopher B. Dunn (Date of birth, April 26, 1995, currently age 13), and Katharine E. Dunn (Date of birth October 15, 1999, currently age 8). 4. Following a Custody Conciliation, an Order of Court dated May 30, 2008, was entered in this matter establishing primary physical custody of the children with the Petitioner and partial physical custody of the children for the Respondent. A true and correct copy of said Order signed by the Honorable Kevin A. Hess is attached hereto and incorporated herein by reference as Exhibit "A." 5. The Order of Court essentially established shared legal custody and periods of partial physical custody with Respondent on alternating weekends from Saturday to Sunday. 6. The Order attached as Exhibit "A" also provides that the parties shall not attempt to induce the children to live with them by promising them anything, shall not do or say anything that may estrange the children from the other party, and shall ensure that third parties do not attempt to influence the children's preference or estrange them from their parents. 7. From the birth of the minor children, Petitioner has almost exclusively stayed home to raise the children and be their primary caretaker. 8. Prior to June of 2007, the parties lived in Smethport located in McKean County. 9. Both parties were born and raised in Coudersport located in neighboring Potter County, and almost all of the parties' family members and friends are still located in that area. 10. In 2007, Respondent located new employment as both a paramedic and Pennsylvania Game Commission officer in Cumberland County, Pennsylvania. 11. In June of 2007, Petitioner agreed to relocate herself and the minor children to Carlisle with the understanding that Respondent would abide by certain conditions. 2 12. These conditions primarily included that Respondent had ended and would not continue any extramarital affairs which had occurred over a period of years while the parties resided in Smethport. 13. After moving with the children to Carlisle in June 2007, however, Petitioner subsequently learned that Respondent's most recent paramour had also relocated from Smethport to Cumberland County in 2007. 14. In addition, on April 25, 2008, Petitioner filed a Petition for Protection From Abuse alleging that Respondent had grabbed and shoved her on April 21St causing bruising and pain. 15. The parties subsequently entered into a consent agreement with regard to her Petition for Protection from Abuse. 16. When Petitioner relocated from Smethport to Carlisle in June 2007, the parties entered into a one (1) year lease for the townhouse located at 1874 Douglas Drive, Carlisle. 17. Prior to the parties' lease term ending on June 30, 2008, Petitioner and her legal counsel attempted to obtain an extension to that lease through the realtor representing the landlords. 18. The realtor refused repeated requests to extend the lease term, but Petitioner has now learned that as early as May 2008, Respondent and his paramour had signed an application to lease the parties' townhouse. 3 19. Respondent and his paramour also signed a new lease agreement for the townhouse dated June 3, 2008, thereby effectively blocking Petitioner and the minor children from continuing their residence in the townhouse. 20. As a direct result of the actions of Respondent, Petitioner is without a permanent residence in Cumberland County. 21. As a direct result of the actions of Respondent, Petitioner is now living in a temporary apartment with no ability to locate meaningful employment and without any family members in the area to support her. 22. Petitioner has been the primary caregiver for the minor children for their entire lives, and with Respondent having three (3) jobs, his work schedule does not permit him to be the primary caregiver. 23. Petitioner now seeks the consent of Respondent and/or approval to relocate the parties' minor children to the Coudersport area. 24. Petitioner has no family members in Cumberland County to assist her with finding permanent housing, or to assist her in supporting and raising the parties' minor children. 25. Petitioner would not have agreed to relocate to Cumberland County with the minor children if she had known that Respondent's paramour had also relocated here. 4 26. Petitioner is unable to secure meaningful employment without the support and assistance of her family, all of whom live in the Coudersport area. 27. Even if Petitioner is forced to remain in Cumberland County, the parties' daughter will likely have to be enrolled at a new elementary school, and Petitioner may be forced to locate a permanent residence in a new school district. 28. Respondent, meanwhile, has offered the children the opportunity to have their old rooms back and to remain in their current schools if they agree to live with him back in the townhouse. 29. Respondent's actions are a direct violation of the Order of Court attached as Exhibit "A." 30. Petitioner further requests that this Court grant her request to relocate the minor children to the Coudersport area. 31. The best interests and permanent welfare of the child require that the Court modify the current custody schedule as requested in this Petition. 32. Legal counsel for Respondent does not concur with the filing of this Petition and the relief being sought, and has indicated Respondent's continued desire to obtain primary custody of the parties' minor children and to remain in Cumberland County. 5 WHEREFORE, Petitioner/Defendant respectfully seeks the entry of an Order of Court granting her Petition for Special Relief and Contempt. Respectfully submitted, IRWIN & McKNIGHT r Dated: August 18, 2008 By: Douglas . Miller, squire Supreme Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant 6 VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. KELL I D N Date: 8/18/08 EXHIBIT "A" 4 MAY ! 6 Mr,-- BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2008-2929 CIVIL ACTION - LAW KELLY I DUNN, Defendant : IN CUSTODY ORDER OF COURT AND NOW, this .30-'Q( day of 'M&AaV , 2008, upon consideration of the attached Custody Conciliation Wrt, it is ordered and directed as follows: 1. A Hearing is scheduled in om No. of the Cumb r apd County Court House, on the d0 t'i day of [1,U dud& 2008, at _O o'clock, & . M., at which time testimony will be taken. For purposes of this Hearing, the Father shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be expected to testify at the Hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least five days prior to the Hearing date. 2. The custody provisions of the Order of Court dated 028 , 2008 at Docket No. 08-2673 are hereby vacated. 3. Pending further Order of Court or agreement of the parties, the following shall remain in full force and effect. 4. The Father, Bryan T. Dunn and the Mother, Kelly J. Dunn shall have shared legal custody of Christopher Bryan Dunn, born April 26, 1995 and Katharine Elizabeth Dunn, born October 18, 1999. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the Children's general well-being including, but not limited to, all decisions regarding their health, education and religion. Pursuant to the terms of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the children including, but not limited to medical, dental, religious or school records, the residence address of the children and the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. Both parents shall be entitled to full participation in all educational and medical/treatment planning meetings and evaluations with regard to the minor children. Each parent shall be entitled to full and complete information from any physician, dentist, teacher or authority and copies of any reports given to them as parents including, but not limited to: medical records, birth certificates, school or educational attendance records or report cards. Additionally, each parent shall be entitled to receive copies of any notices which come from school with regard to school pictures, extracurricular activities, children's parties, musical presentations, back-to- school nights, and the like. Mother shall have primary physical custody of the children. 6. Father shall have the following periods of partial physical custody: A. May 31, 2008 from 12:00 noon to 5:00 p.m. B. June 7 and 8, 2008 from 9:00 am. to 5:00 p.m. on both days. C. Beginning June 21, 2008 alternating weekends from Saturday at 9:00 a.m. to Sunday at 5:00 p.m. Father's overnight periods shall be exercised at his sister's home. D. Such other times as the parties agree. 7. Neither party may permanently relocate the children outside of the jurisdiction without prior Order of Court. 8. Transportation shall be shared such that the parties shall exchange custody of the children at the North Middleton Township Police Department. 9. The parties shall cooperate with counseling for the children to include Domestic Violence counseling and counseling at Holy Spirit Hospital if covered by health insurance. 10. The parties shall not attempt to induce the children to live with them by promising them anything. The parties shall also insure that third parties do not attempt to influence the children's preference in this manner. 11. Neither parent may do or say anything or permit third parties from doing or saying anything that may estrange the children from the other party, or injure the opinion of the children as to the other parent or which may hamper the fi= and natural development of the children's love and respect for the other parent. 12. The parties may modify this Order by mutual agreement. in the absence of mutual consent, the terms of this Order shall control. BY TH OURT, J. cc: Dlathan C. Wolf, Esquire, counsel for Father ?Douglas O. Miller, Esquire, counsel for M `CP(;W M.71 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below both by facsimile, by hand delivery, and by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Nathan C. Wolf, Esquire Wolf & Wolf 10 West High Street Carlisle, PA 17013 Date: August 19, 2008 IRWIN & McKNIGHT Douglas G. ill squire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant ra r_a .: LA 00 ` . rn BRYAN T. DUNK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 08-2929 CIVIL KELLY J. DUNN, Defendant IN CUSTODY ORDER AND NOW, this 7/' day of August, 2008, continued hearing in the above- captioned matter is set for Thursday, October 23, 2008, at 9:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, -W Hess, J. than Wolf, Esquire For the Plaintiff X Y" ?uglas Miller, Esquire For the Defendant :rlm c^? ?'::. ? c? _ -q ° ?f1 4 ? L ? '?, ?? ?aC??- t.??- ":: ?, l "C1C=v tY? ? `... ?? C.,y BRYAN T. DUNN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 08-2929 CIVIL KELLY J. DUNN, : Defendant IN CUSTODY ORDER AND NOW, this Z 7- day of August, 2008, continued hearing in the above- captioned matter set for October 23, 2008, is rescheduled for Friday, October 24, 2008, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Z-athan Wolf, Esquire For the Plaintiff /5ouglas Miller, Esquire For the Defendant j :rlm o?/ C"i _z i BRYAN T. DUNN, Plaintiff vs. KELLY J. DUNN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-2929 CIVIL IN CUSTODY ORDER AND NOW, this 2 day of November, 2008, after hearing and upon consideration of the evidence presented and the legal arguments of counsel for the parties, we enter the following order: 1. The parties shall have shared legal custody of their two minor children, namely, Christopher Bryan Dunn, age thirteen years, and Katharine Elizabeth Dunn, age nine years. 2. The mother shall have primary physical custody of the children, and is granted permission to relocate to Potter County, Pennsylvania, but may not do so until the end of the 2008-2009 school year. 3. Prior to relocation, father shall have partial physical custody of Katharine as follows: a. On alternating weekends from Friday evening at 5:00 p.m. until Sunday evening at 5:00 p.m. to coincide with father's work schedule. b. One evening every other week from 4:00 p.m. until 8:00 p.m., which evening shall coordinate with father's work schedule, and shall be alternated with his evening with Christopher. 4. Prior to relocation, father shall have partial physical custody of Christopher as follows: a. Until January 2009, every other week for one evening from 4:00 p.m. until 8:00 p.m., which evening shall coordinate with father's work schedule, and shall be alternated with his evening with Katharine. b. After January 2009, on alternating weekends from Friday evening at 5:00 p.m. until Sunday evening at 5:00 p.m. to coincide with father's work schedule and his weekend custody of Katharine. c. Unless provided in the holiday and summer schedule herein, at such other times as the parties may agree. 5. Prior to relocation, the parties shall alternate the major holidays as follows: a. Father shall have custody of the children for the Thanksgiving holiday and Christmas Eve day until 6:00 p.m. in even years, and mother shall have the same in odd years. b. Mother shall have custody of the children on the day after Thanksgiving and from Christmas Eve at 6:00 p.m. through Christmas Day in even years and father shall have the same in odd years. c. Father and mother shall alternate the Easter holiday with mother having custody of the children in odd years. d. Father and mother shall alternate the Memorial Day, Labor Day and Independence Day holidays to coincide with father's work schedule, however, no party shall have more than two of these holidays in one year. e. Father shall always have custody of the children on Father's Day from 9:00 a.m. until 5:00 p.m. and mother shall have the same period of time on Mother's Day. f. The parties shall cooperate to ensure that the children have some contact with the other parent on the children's birthdays. 6. The parties shall share transportation of the children such that the receiving party, i.e., the party picking the children up, shall be responsible for transportation to the other party's home, except that father shall be responsible for picking up and dropping the children off for his evening visits. 7. Following relocation of the mother and children to Potter County, Pennsylvania, father shall have custody of the children during the summer vacations from the first Saturday after school recesses until the first Saturday in August. 8. Following relocation the parties shall have custody on holidays as follows: a. In even-numbered years, from the day after Thanksgiving at 10:00 a.m. until the day before school resumes, on odd-numbered years from Thanksgiving morning at 10:00 a.m. until the day before school resumes. b. On even-numbered years, from Christmas Eve at 4:00 p.m. until the day before school resumes, and on odd-numbered years, from December 26`h at 10:00 a.m. until the day before school resumes. C. If the children have a school break which lasts four or more days, including weekends, father shall have custody from end of the school day preceding the break until the evening before school resumes. d. The parties shall cooperate to ensure that the children have some contact with the other parent on the children's birthdays. 9. The parties shall share transportation of the children such that they shall make arrangements to meet at the Sheetz store on U. S. 15 in Lewisburg, Pennsylvania, unless they have agreed for the receiving party to pick up the children from the other party's home. 10. The parties shall ensure that regular telephone contact is permitted between the children and the non-custodial parent. 11. The parties shall do nothing, nor shall they permit third parties, to estrange or alienate the children from the natural love and affection for the other party. BY THE COURT, Nathan Wolf, Esquire For the Plaintiff Douglas Miller, Esquire For the Defendant n- ?u ? cti.r LL- V J NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW KELLY J. DUNN, : NO. 2008 -2929 CIVIL TERM Defendant : IN CUSTODY NOTICE OF APPEAL Notice is hereby given that Bryan T. Dunn, Plaintiff above named, hereby appeals to the Commonwealth Court of Pennsylvania from the original Order entered in this matter on November 21, 2008. This Order has been entered in the docket as evidenced by the attached copy of the docket entry Respectfully submitted, WOLF & WOLF $ ,r Na n qlf, Esquire 10 est Street Carlisle, PA 17013 (717) 241-4436 Supreme Court ID # 87380 December, 2008 Attorney for Plaintiff BRYAN T. DUNN, V. KELLY J. DUNN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 2008 -2929 CIVIL TERM DEFENDANT : IN CUSTODY REQUEST FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, the Official Court Reporter is hereby Ordered to produce, certify and file the transcript in this matter conforming with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. By: Date: December -4-12008 Respectfully submitted, WOLF & WOLF 10 West treet Carlisl 17013 (717) 241-4436 Supreme Court ID # 87380 Attorney for Plaintiff DYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2008-02929 DUNN BRYAN T (vs) DUNN KELLY J Reference No... Filed......... 5/08/2008 Case T e.....: COMPLAINT - CUSTODY Time.........: 1:57 Judgment..... 00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info DUNN BRYAN T PLAINTIFF WOLF? NATHAN C P 0 BOX 281 CARLISLE PA 17013 DUNN KELLY J DEFENDANT 1874 DOUGLAS DRIVE CARLISLE PA 17013 ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 5/08/2008 COMPLAINT - CUSTODY - BY NATHAN C WOLF ATTY FOR PLFF -------------------------------------------------------------------- 5/14/08 IN 5/15/2008 ORDER OF COURT - / CONFERENCE SCHEDULED RE: C6/16/08T AT 0 8:30 AM CUSTODY ARING 4TH FLOOR CUMBERLAND COUNTY COURTHOUSE - BY JACQUELINE M VERNEY ESQ CUSTODY CONCILIATOR - COPIES MAILED 5/15/08 -------------------------------------------------------------------ON SU 5/30/2008 RORDER EPORTO- HCOURT I/3S0/08 INMCR4Y UNTY OFMCCOURTNDATED CUSTODY08-2673PAREROVIHEREBYSIONS KEVIN A HESSJ - COPIES MAILED 5/30/08 ------------------------------------------------------------------- 7/17/2008 AFFIDAVIT OF SERVICE - SUBPOENA - BY TRACI D SMITH ------------------------------------------------------------------- 8/07/2008 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 - DOUGLAS G MILLER ATTY FOR DEFT -------------------------------------------------------------------- 8/13/2008 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 - BY DOUGLAS G MILLER ATTY FOR DEFT ------------------------------------------------------------------- 8/19/2008 PETITION FOR SPECIAL RELIEF - BY DOUGLAS G MILLER ATTY FOR DEFT ------------------------------------------------------------------- 8/21/2008 ORDER - 8/21/08 - CONTINUED HEARING IN THE ABOVE CAPTIONED MATTER IS SET FOR 10/23/08 AT 9:30 AM IN CR4 CUMBERLAND COUNTY COURTHOUSE - BY KEVIN A HESS J - COPIES MAILED 8/21/08 ------------------------------------------------------------------- 8/28/2008 IS ORDER SET FOR 10/23/08 CONTINUED RESCHEDULED HEARING FOIN THE R 10/24/08 ABOVE AT CAPTIONED 1:30 PM INTCR4 CUMBERLAND COUNTY COURTHOUSE - BY KEVIN A HESS J - COPIES MAILED 8/28/08 -------------------------------------------------------------------- 11/21/2008 ORDER - 11/21/08 IN RE: CUSTODY - BY KEVIN A HESS J - COPIES MAILED 11/21/08 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq? Bal Pmts/Ad? End Bal ******************************** ******** ****** ******************************* CUSTODY AGMT 135.00 135.00 .00 TAX ON AGMT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 CUSTODY FEE 5.60 5.60 .00 CUSTODY FEE-CO 1.40 1.40 .00 SUBPOENA 3.00 3.00 .00 SUBPOENA 3.00 3.00 .00 PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2008-02929 DUNN BRYAN T (vs) DUNN KELLY J Reference No..: Filed........: 5/08/2008 Case Type ..... : COMPLAINT - CUSTODY Jud 00 ment Time.........: E ti D t 1:57 0/00/0000 g ..... xecu on a e Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ----------- -- Higher Crt l.: Higher Crt 2.: SUBPOENA 9.00 9.00 .00 SPEC RELIEF CUS 70.00 70.00 .00 SUBPOENA 3.00 3.00 .00 -------------- 253.50 ---------- 253.50 ----.-------- .00 *************************************** ***************************************** * End of Case Information *************************************** ***************************************** TRIBE C7, ? ® In Testimony v hLr. r : had and the seal of sa < COUP o Zil?iYri a , Pa. This ... / /G...... day of...OV . ,........ . ;2RISE Prothonotary, NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW KELLY J. DUNN, : NO. 2008 -2929 CIVIL TERM Defendant : IN CUSTODY CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the date indicated below, I caused the foregoing Notice of Appeal, by US. Mail to the following person, addressed as follows: Douglas Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 WOLF & Dated: December 11, 2008 By: Natha fC , Esquire Counsel r Plaintiff 1 P4 9P X sh Q 00 f Q O a 4.C 3 6`?.7 BRYAN T. DUNN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NO. 08-2929 CIVIL KELLY J. DUNN Defendant IN RE: APPEAL OF PLAINTIFF ORDER AND NOW, December 28, 2008, in accordance with Rule 1925 of the Rules of Appellate Procedure, the Plaintiff having filed a notice of appeal, the appellant is directed to file of record, within twenty-one (21) days hereof, and serve upon the undersigned a concise statement of the matters complained of on the appeal. BY THE COURT, athan C. Wolf, Esquire XFthe Plaintiff For Miller, Esquire '_0_A For the Defendant :rlm 1\ -r .ti? , C ? ?,"3 i? .,y?+= l 4 ?? ..?i`".? ?? t v? L? ?:"S L._' NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW KELLY J. DUNN, : NO. 2008-2929 CIVIL TERM Defendant : IN CUSTODY CONCISE TATEMENT OF MATTER S COMPLAINED OF ON APPS T PURSUANT TO Pa. R A P 192 AND NOW comes the Plaintiff, Bryan T. Dunn, by his attorney, Nathan C. Wolf, Esquire, and in support of his Notice of Appeal, and as directed by this Court's Order of December 29, 2008, avers as follows: 1) The trial court erred in granting Defendant Kelly J. Dunn permission to relocate with the parties' minor children, Christopher Bryan Dunn, Age 13 years, and Katharine Elizabeth Dunn, Age 9 years, to Roulette, Potter County, Pennsylvania at the end of 2008-2009 school year because: a. Defendant offered almost no testimony in support of her claim that relocation would be in the best interests of the children and offered no testimony to establish that she was unable to find suitable housing or employment in the Carlisle area; b. Defendant's only testimony concerning relocation was speculative, at best, and she offered (1) no testimony from her parents with whom she testified she and the children would live, (2) no evidence to establish available employment opportunities or the existence of job offers necessitating the move, or continued educational opportunities in the area of the proposed move to enhance her employment opportunities, and she offered (3) no evidence as to what educational, emotional, and social opportunities exist which would improve the quality of life for the children if relocation was granted; c. The trial court erred in granting permission for Defendant to relocate when the testimony clearly established that Mother sought to use relocation to alienate the children from Father, d. The trial court erred in granting permission for Defendant to relocate when the children indicated their clear preference to remain in Carlisle; e. The trial court erred in granting permission for Defendant to relocate when the evidence established that Mother has established a history of failing to reinforce the relationship between Father and the children, particularly the parties' son; and, f. The trial court erred in failing to properly consider the factors set forth in Garber V. Gruber, 583 A.2d 434 (Pa.Super. 1990), which are to be weighed and applied in cases where custody relocation is sought. 2.) The trial court erred in assigning an undue amount of weight to Defendant's emphasis on Father's relationship with Nikki Slocum as justification for permitting Mother to relocate to Potter County due to the alleged emotional benefits to Mother associated with relocating from Carlisle. Respectfiilly WOLF & W) January - L5, 2009 NA°PnGUWOLF, ESQUIRE Atta or Plaintiff 10 West High Street Carlisle, Pennsylvania 17013-2922 (717) 241-4436 Supreme Court I.D. No. 87380 Vk NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW KELLY J. DUNN, : NO. 2008 -2929 CIVIL TERM Defendant : IN CUSTODY CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the date indicated below, I caused the foregoing Concise Statement of Matter Complained of On Appeal to be served upon the following parry, by mailing the same via. First Gass Mail, addressed as follows: Douglas G. Miller, Esquire IRWIN & McKNIGHT 60 West Pomfret Street Carlisle, PA 17013 (Counsel for Defendant) Dated: January I- , 2009 By: C? O C ?o U1 K Fi .rye- w ? `y q ` t J ? BRYAN T. DUNN, IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW KELLY J. DUNK, : NO. 2008,2929 CIVIL TERM Defendant : IN CUSTODY AMENDED NOTICE OF APPEAL Notice is hereby given that Bryan T. Dunn, Plaintiff/Appellant above named, hereby files this Notice of Appeal amending the original Notice, filed December 19, 2008 (a copy of which is attached hereto), to the Superior Court of Pennsylvania from the original Order entered in this matter on November 21, 2008. This Order was attached to the original Notice of Appeal along with a certified copy of the docket entries. RespecdWly submitted, WOLF & WOLF January LC , 2009 By: Nation ,squire 10 W t h Street Carli, PA 17013 (717) 241-4436 Supreme Court ID # 87380 Attorney for Appellant BRYAN T. DUNN, Plaintiff V. KELLY J. DUNK, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008 2929 CIVIL TERM IN CUSTODY CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, attorney for Appellant, do hereby certify that I, this day, served a copy of the Amended Nonce ofAppeal upon the following by U. S. Mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Douglas Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 Date: January t s , 2009 Nathan o s AttomeyCfor f/Appellant NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW ca BELLY J. DUNN, : NO. 2008 2929 CIVIL TERM ? {? Defendant : IN CUSTODY l NOTICE OF APPEAL , Notice is hereby given that Bryan T. Dunn, Plaintiff above named, hereby appeals to the Commonwealth Court of Pennsylvania from the original Order entered in this matter on November 21, 2008. This Order has been entered in the docket as evidenced by the attached copy of the docket entry Respectfully submitted, WOLF & WOLF December 2008 Na n "0," Esquire 10 est Righ Street Carlisle, PA 17013 (717) 241-4436 Supreme Court ID # 87380 Attorney for Plaintiff BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW KELLY J. DUNN, : NO. 2008 -2929 CIVIL TERM DEFENDANT : IN CUSTODY REQUEST FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, the Official Court Reporter is hereby Ordered to produce, certify and file the transcript in this matter conforming with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. Respectfully submitted, WOLF & WOI By: Date: December -4-1 2008 Nathan 10 West Carlisld,PA'17013 (717) 241-4436 Supreme Court ID # 87380 Attorney for Plaintiff •PYS511 Cumberland County Prothonot Ci il ary's Office Pa e 1 g v Case Print 2008-02929 DUNN BRYAN T (vs) DUNN KELLY J Reference No : .. Case Type ..... : COMPLAINT - CUSTODY J d Filed........: Time 5/08/2008 u gment O Jude Assigned: HESS KEVINA .........: Execution Date 1:57 0/00/0000 Disposed Desc.: Jury Trial.... ------------ Case Comments ----- ------- Dis osed Date. Hi er C t l 0/00/0000 g r .: Higher Crt 2.: ******************************************************************************** General Index Attorney Info DUNN BRYAN T PLAINTIFF P 0 BOX 281 WOLF NATHAN C CARLISLE PA 17013 DUNN KELLY J DEFENDANT 1874 DOUGLAS DRIVE CARLISLE PA 17013 ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - _ _ _ _ 5/08/2008 COMPLAINT - CUSTODY - BY NATHAN C WOLF ATTY FOR PLFF ------------------------------------------------------------------- 5/15/2008 ORDER OF COURT - 5/14/08 IN RE: COMPLAINT FOR CUSTODY - PREHEARING CUSTODY CONFERENCE SCHEDULED FOR 6/16/08 AT 8:30 AM 4TH FLOOR CUMBERLAND COUNTY COURTHOUSE - BY JACQUELINE M VERNEY ESQ CUSTODY CONCILIATOR - COPIES MAILED 5/15/08 ------------------------------------------------------------------- 5/30/2008 ORDER OF COURT - 5/30/08 IN RE: CUSTODY CONCILIATION SUMMARY REPORT - HEARING IS SCHEDULED FOR 8/20/08 AT 9:30 AM IN CR4 CUMBERLAND COUNTY COURTHOUSE - THE CUSTODY PROVISIONS OF THE ORDER OF COURT DATED 5/28/08 AT DOCKET NO 08-2673 ARE HEREBY VACATED - BY KEVIN A HESSJ - COPIES MAILED 5/30/08 ---------------- _ _ ___________ --------------- _ ______ 7 17/2008 AFFIDAVIT OF SERVICE - SUBPOENA - BY TRACI D SMITH --------------------------- _ --------------- 8 07/2008 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 - DOUGLAS G MILLER ATTY FOR DEFT ------------------------------------------------- 8/13/2008 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 - BY DOUGLAS G MILLER ATTY FOR DEFT ----------------------------- ---------------------- ---------------- 8 19 2008 PETITION FOR SPECIAL RELIEF - BY DOUGLAS G MILLER ATTY FOR DEFT --------------------------- _ _ __ 8/21/2008 ORDER - 8/21/08 - CONTINUED HEARING IN THE ABOVE CAPTIONED MATTER IS SET FOR 10/23/08 AT 9:30 AM IN CR4 CUMBERLAND COUNTY COURTHOUSE - BY KEVIN A HESS J - COPIES MAILED 8/21/08 ------------------------------------------------------------------- 8/28/2008 ORDER - 8/27/08 - CONTINUED HEARING IN THE ABOVE CAPTIONED MATTER IS SET FOR 10/23/08 IS RESCHEDULED FOR 10/24/08 AT 1:30 PM IN CR4 CUMBERLAND COUNTY COURTHOUSE - BY KEVIN A HESS J - COPIES MAILED 8/28/08 ------------------- _ 11/21/2008 ORDER - 11/21/08 IN RE: CUSTODY - BY KEVIN A HESS J - COPIES MAILED 11/21/08 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Be Dal Pmts/Ad' End Bal ******************************** ******** ****** ******************************* CUSTODY AGMT 135.00 135.00 .00 TAX ON AGMT .50 .00 SETTLEMENT .50 AUTOMATION FEE 800 8.00 .00 JCP FEE 5.00 5.00 .00 CUSTODY FEE 10.00 10.60 .00 CUSTODY FEE-CO 5.60 5.60 .00 SUBPOENA 1.40 1.40 .00 3 00 3.00 .00 SUBPOENA 3.00 3.00 .00 PYS511 Cumberland County Prothonotary's Office Pa e 2 Civil Case Print g 2008-02929 DUNN BRYAN T (vs) DUNN KELLY J Reference No..: Filed........; 5/08/2008 Case Tyyppe..... : COMPLAINT - CUSTODY Time.........: 1:57 Judgment.,....: 00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: SUBPOENA 9.00 9.00 Higher Crt 2.: SPEC RELIEF CUS 70.00 70.00 . 00 SUBPOENA 3.00 3.00 .00 00 ------------------ ------------ 253.50 253.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE C.M..: r.? In Testimony v;h ; r+ Ftnd and the seal of s . -; a This /C._.. day of... .......... ..............%?... ...1.. .? Prothonotary NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, Plaintiff V. KELLY J. DUNN, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008 2929 CIVIL TERM IN CUSTODY CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the date indicated below, I caused the foregoing Notice of Appeal, by U .S. Mail to the following person, addressed as follows: Douglas Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 WOLF & Dated: December C , 2008 By: Nath C , Esquire Counsel r Plaintiff C 4 CS C.a.7 COMMONWEALTH OF PENNSYLVANIA Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary Mr. Curtis R. Long a., Superior Court of Pennsylvania Middle District January 20, 2009 Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: 101 MDA 2009 Bryan T. Dunn, Appellant V. Kelly J. Dunn Dear Mr. Long: 100 Pine Street. Suite 400 Harrisbure. PA 17101 717-772-1294 www. superior. court. state. pa.us Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, Karen Reid Bramblett, Esq. Prothonotary WJT Enclosure 2:43 PA Appeal Docket Sheet Docket Number: Page 1 of 2 January 20, 2009 101 MDA 2009 Bryan T. Dunn, Appellant V. Kelly J. Dunn Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: December 19, 2008 Journal Number: Case Category: Domestic Relations Awaiting Original Record CaseType: CustodyNisitation Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received Next Event Due Date: February 3, 2009 Next Event Due Date: February 17, 2009 COUNSEL INFORMATION Appellant Pro Se: IFP Status Dunn, Bryan T. Receive Mail: Yes E-Mail Address: nathancwolf@embargmail.com Receive E-Mail: Yes Bar No.: 87380 Law Firm: Wolf & Wolf Address: 10 W High Street Carlisle, PA 17013-2922 Phone No.: (717)241-4436 Fax No.: (717)241-4437 Superior Court of Pennsylvania Appoint Counsel Status: No Appellant Attorney Information: Attorney: Wolf, Nathan Charles Appellee Pro Se: IFP Status: Dunn, Kelly J. Appoint Counsel Status: Appellee Attorney Information: Attorney: Miller, Douglas George Bar No.: 83776 Law Firm: Irwin & McKnight Address: 60 W Pomfret Street Carlisle, PA 17013 Phone No.: (717)249-2353 Fax No.: (717)249-6354 Receive Mail: Yes E-Mail Address: Receive E-Mail: No 1/20/2009 3023 2:43 P.M Appeal Docket Sheet Docket Number: Page 2 of 2 101 MDA 2009 January &v, &www FEE INFORMATION Paid Receipt Number Fee Name Fee Amt Amount 2009SPRMD000050 Fee Date 60.00 60.00 1116/09 Notice of Appeal Court Below: Cumberland C County: Cumberland Date of Order Appealed From: Date Documents Received: TRIAL COURVAGENCY INFORMATION ounty Court of Common Pleas Civil Division: November 21, 2008 Judicial District: 9 January 16, 2009 Date Notice of,Appeal Filed: December 19, 2008 OTN: Order Type: Order Entered Judge: Hess, Kevin A. Judge Lower Court Docket No 2008-2929 ORIGINAL RECORD CONTENTS Original Record Item Date of Remand of Record: Filed Date Content/Description BRIEFS DOCKET ENTRIES r%~-kpt EntrvlDocument Name Party Type Filed Date December 19, 2008 Notice of Appeal Filed Appellant Dunn, Bryan T. January 20, 2009 Docketing Statement Exited (Domestic Relations) Middle District Filing Office Superior Court of Pennsylvania Filed By 3023 1/20/2009 .o ca cr? NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) Z41-4436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, V. KELLY J. DUNN, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Defendant : NO. 2008 -2929 CIVIL TERM : IN CUSTODY CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the date indicated below, I caused the foregoing Amended Notice of Appeal, by hand delivery to the following person, addressed as follows: Honorable Kevin A. Hess Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 WOLF & Dated: January ZO , 2009 Plaintiff Zoo NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. KELLY J. DUNN, Defendant : CIVIL ACTION - LAW : NO. 2008 -2929 CIVIL TERM : IN CUSTODY PETITION FOR CONTEMPT AND NOW, comes the petitioner, Bryan T. Dunn, by and through his attorney, Nathan C. Wolf, Esquire, and present the following petition for contempt, representing as follows: The petitioner is Bryan T. Dunn, an adult individual residing at 1874 Douglas Drive, Carlisle, Cumberland County, Pennsylvania 17013. 2. The respondent is Kelly J. Dunn, an adult individual residing at 351 West North Street, Carlisle, Cumberland County, Pennsylvania 17013. 3. The parties are the natural parents of two (2) minor children born of their marriage, namely: Christopher Bryan Dunn, born April 26, 1995, and Katharine Elizabeth Dunn, born October 18, 1999. 4. The parties are subject to a custody Order issued by this Court dated November 21, 2008. A true and correct copy of this Order is attached hereto as Exhibit A. 5. Pursuant to paragraph 4 of the Custody Order, Father shall have custody of his son, Christopher, one evening every other week and on alternating weekends. 6. The following were planned dates for Father's visits with Christopher that did not occur: December 11, 16 and 19-21, January 2-4,13,16-18, 21, 27 and January 30, 2009 to February 1, 2009. 7. For the majority of these opportunities, Father went to Mother's residence to pick up the child. 8. Initially, Mother refused to engage in custody exchanges at her residence, instead demanding that such exchanges occur at the Carlisle Police Station. 9. Each time Father did appear for an exchange, Mother would send the parties' daughter, in place of their son, Christopher and Christopher would not go with Father. 10. In fact on December 14, 2008, Mother informed Father that because a PFA consent decree existed, if Father appeared at Mother's residence for the custody exchanges as provided in the Court's Order of November 21, 2008, Mother would contact the Carlisle Police and attempt to have Father arrested. 11. Mother continued to demand the same, requiring the undersigned to provide confirmation to the Carlisle Police Department that the PFA Order had no provision concerning custody exchanges taking place at the North Middleton Police Department and that, instead, the November 21, 2008 Order only provided for exchanges occurring at the parties' residences. 12. On December 16, 2008, Mother went to the Carlisle Police Department to report Father for coming to her house to pick up the children and attempted to have Father charged with violating the PFA for coming to her house. Mother and Father had no exchange at the house, Mother sought to have Father charged for merely being present at her house. 13. Counsel for the parties finally resolved the issue when Mother acquiesced to no longer refuse custody exchanges at her residence. 14. However, Mother has feigned compliance with the Order in that she contacted the Carlisle Police Department on December 19, 2008, presumably to attempt to coerce Christopher into going for his weekend with Father. During the conversation with the officer, Mother repeatedly indicated that Father continually beats the child, some of which was stated in the presence of the child. 15. Counsel for the parties had, prior to the scheduled exchange, reached an agreement providing for a modified holiday schedule where Christopher and Katharine would have been with Father for the weekend prior to Christmas and over the New Year's holiday, because as a result of Father's work schedule, he was unavailable to be with the children on the Holiday as provided in the Order. Thus, the parties had arranged an alternative schedule through counsel, to ensure that Christopher would go with Father for his fast overnight visit since the summer. Father agreed to have Christopher for only one overnight, rather than for two overnights, so that the child could attend church on Sunday. 16. In the course of the exchange, and despite the agreement reached between counsel and the parties, Christopher had already refused to come with Father but instead began making additional demands of being returned if he did not feel comfortable with Father. However, Mother refused to provide a telephone number to Father, even at the request of the police officer. Ultimately, the child refused to go with Father and Father did not have custody on New Year's weekend either. 17. Nevertheless, Father did not have a visit with the child, because the police refused to physically force the child into Father's car. 18. The parties' daughter, Katharine, did go with Father for the visit, and for other visits, but Mother refuses to allow the children to bring video games with them which they could use at Father's home. Thus, Mother's actions are designed to make the visits with Father as uncomfortable as possible on the basis that she fears Father will damage the items. 19. The exchange situation with Christopher has been repeated, without police involvement, on nearly every scheduled visit, including January 21, 2009, when counsel for the parties also attempted to coerce the child into going with his Father for two and one-half hours to the YMCA, from 4:00 to 6:30, when Father then agreed to take the child to his youth group at his church, rather than having a visit from 4:00 to 8:00. The child refused because Father's girlfriend would be in the car on the way to the YMCA, despite the offers of counsel to transport the child in either of their vehicles, without Father's girlfriend. The child refused to go with Father, after more than thirty minutes of attempting to get the child to go with Father. 20. During the most recent event, Mother indicated that she has informed the child that he would not be able to use his video games or attend his youth group events if he did not go with his Father. 21. However, this change did not occur until two months after the Order was entered and the situation has already escalated to the point where the child has refused to go with Father. 22. Father has not had any visits with Christopher since June 2008. 23. Mother has failed to reinforce and support the relationships of the children with their father as pursuant to paragraph 11 of the November 21, 2008 Order. 24. It is averred that, a result of Mother's actions, the child has indicated that he will not cooperate with remaining in Father's house in Carlisle during the summer of 2009, following Mother's relocation to Roulette, Pennsylvania. 25. For more than two months since the November 21, 2008 Order was entered, Mother has demonstrated that she is not well-suited to ensuring that meaningful contact continues between Father and the children following relocation. 26. Father believes and therefore avers that the children's stability, best interests, and well- being would be best served by an Order consistent with the factors set forth in Gruber v. Gerber, 583 A.2d 434 (Pa.Super.1990), in that because of Mother's actions and the child's demonstrated refusal to visit with Father, namely (1) the availability of realistic, substitute visitation arrangements which will adequately foster an on-going relationship between the child and the non-custodial parent; and (2) the integrity of the motives of both the custodial and non custodial parent in either seeking the move or seeking to prevent it. 27. Father submits that if relocation is permitted, there are no meaningful substitute visitation arrangements which will foster his on-going relationship with his son. 28. Rather, Father avers that if relocation occurs, he will have no relationship with his child because there will continue to be no contact with Father. 29. Moreover, Father had sought the cooperation of Mother in securing counseling services for the child while remaining in the Carlisle area, which Mother has, to-date, refused to cooperate. 30. Father believes that if appropriate at all, relocation should only be permitted after Father has had a realistic and meaningful opportunity to obtain counseling and therapeutic services from a licensed provider, rather than clergy from Mother's church, to assist the child and Father to re-establish their relationship and that marked progress has been made. 31. Finally, Father has incurred significant counsel fees and costs associated with the matters related to the instant petition, including the preparation and filing of the same. The undersigned estimates that Father's costs and fees associated with the same are approximately $1,100.00, and respectfully requests to submit a certification of fees at the time of the hearing. 32. Father believes that in addition to the Court reviewing its Order concerning the appropriateness of its prior authorization for relocation in light of the behavior described herein, that Mother should be sanctioned for her failure to adhere to the Order, to support and reinforce the relationship with the children and Father and for her actions to alienate the children from Father by limiting contact even by telephone. 33. Pursuant to paragraph 10 of the Custody Order, parties shall ensure that regular telephone contact is permitted between the children and the non custodial parent. 34. Mother has failed to provide Father with a working telephone number where the children can be reached during Mother's periods of custody and for Father to reach Mother in the event of an emergency during Father's periods of custody. 35. Moreover, Mother has refused to allow the children to call Father while in her custody. 36. Counsel for the parties participated in a conference with the Court in chambers on January 22, 2009, to determine if there were any ways to avoid having to proceed in contempt against Mother for the child's refusal to visit with Father. 37. During the course of the conference, Father's counsel informed the Court that Father still did not have a telephone number for Mother, which the Court directed to be given to Father, and which situation would be revisited if Father abused the privilege of having the number. 38. Since the conference, Mother has refused to provide her telephone number and, instead provided a phone number for a church leader who agreed to relay messages for Father. Said calls could only be placed by Father concerning the children while in Father's care, thus continuing to limit Father's ability to contact the children while in Mother's care. The written message from Mother is attached hereto as Exhibit B. 39. It is respectfully submitted that in accordance with the decision in Holler v. Smith, et al, 928 A.2d 330 (Pa.Super. 2007) and Kassam v. Karsam, 811 A.2d 1023 (Pa.Super. 2002), that the trial court retains jurisdiction to review the instant matter and grant the relief requested therein, despite the fact that Father has appealed the Order of November 21, 2008 to the Superior Court of Pennsylvania. 40. At the time of the conference, judge Hess, who is the prior judge for all matters on this case, indicated that if the petition for contempt was filed, he would direct that the matter should bypass a conciliation conference and proceed to a hearing, to which both counsel agreed. 41. Counsel for Mother was contacted concerning the instant petition and did not concur in the relief requested, though Attorney Douglas Miller did concur in the scheduling of a hearing without the requirement of a conciliation conference. WHEREFORE, Petitioner, Bryan T. Dunn, respectfully prays that this Honorable Court schedule a hearing whereupon the Respondent, Kelly J. Dunn, may show cause why she should not be adjudicated in contempt, why she should not be sanctioned for her contempt to assure her future compliance with the Court's Orders, and why the Court should not modify the underlying order to address the issue of relocation in light of the demonstrated change in circumstances, along with any other relief the Court may deem appropriate. Respectfully submitted, WOLF & WDUE Natha olf, Esquire 10 W s igh Street Carlisle, PA 17013 (717) 241-4436 Supreme Court ID # 87380 Date: February-A-, 2009 Attorney for Plaintiff BRYAN T. DUNN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 08-2929 CIVIL KELLY J. DUNN, Defendant IN CUSTODY AND NOW, this 2 day of November, 2008, after hearing and upon consideration of the evidence presented and the legal arguments of counsel for the parties, we enter the following order: 1. The parties shall have shared legal custody of their two minor children, namely, Christopher Bryan Dunn, age thirteen years, and Katharine Elizabeth Dunn, age nine years. 2. The mother shall have primary physical custody of the children, and is granted permission to relocate to Potter County, Pennsylvania, but may not do so until the end of the 2008-2009 school year. 3. Prior to relocation, father shall have partial physical custody of Katharine as follows: a. On alternating weekends from Friday evening at 5:00 p.m. until Sunday evening at 5:00 p.rn. to coincide with father's work schedule. b. One evening every other week from 4:00 p.m. until 8:00 p.m., which evening shall coordinate with father's work schedule, and shall be alternated with his evening with Christopher. X h 161 A 4. Prior to relocation, father shall have partial physical custody of Christopher as follows: a. Until January 2009, every other week for one evening from 4:00 p.m. until 8:00 p.m., which evening shall coordinate with father's work schedule, and shall be alternated with his evening with Katharine. b. After January 2009, on alternating weekends from Friday evening at 5:00 p.m. until Sunday evening at 5:00 p.m. to coincide with father's work schedule -and -his weekend-custody-of-Katharine, c. Unless provided in the holiday and summer schedule herein, at such other times as the parties may agree. 5. Prior to relocation, the parties shall alternate the major holidays as follows: a. Father shall have custody of the children for the Thanksgiving holiday and Christmas Eve day until 6:00 p.m. in even years, and mother shall have the same in odd years. b. Mother shall have custody of the children on the day after Thanksgiving and from Christmas Eve at 6:00 p.m. through Christmas Day in even years and father shall have the same in odd years. c. Father- and mother shall alternate the Easter holiday with mother having custody of the children in odd years. d. Father and mother shall alternate the Memorial Day, Labor Day and Independence Day holidays to coincide with father's work schedule, however, no party shall have more than two of these holidays in one year. e. Father shall always have custody of the children on Father's Day from 9:00 a.m. until 5:00 p.m. and mother shall have the same period of time on Mother's Day. f. The parties shall cooperate to ensure that the children have some contact with the other parent on the children's birthdays. __6. The_parties_shall.share__transportation_of-the _children _such-that thereceiving_party,_i.e., the party picking the children up, shall be responsible for transportation to the other party's home, except that father shall be responsible for picking up and dropping the children off for his evening visits. 7. Following relocation of the mother and children to Potter County, Pennsylvania, father shall have custody of the children during the summer vacations from the first Saturday after school recesses until the first Saturday in August. 8. Following relocation the parties shall have custody on holidays as follows: a. In even-numbered years, from the day after Thanksgiving at 10:00 a.m. until the day before school resumes, on odd-numbered years from Thanksgiving morning at 10:00 a.m. until the day before school resumes. b. On even-numbered years, from Christmas Eve at 4:00 p.m. until the day before school resumes, and on odd-numbered years, from December 26`x' at 10:00 a.m. until the day before school resumes. c. If the children have a school break which lasts four or more days, including weekends, father shall have custody from end of the school day preceding the break until the evening before school resumes. d. The parties shall cooperate to ensure that the children have some contact with the other parent on the children's birthdays. 9, The parties -shall -share -transportation -of-the childrensuch that-they-shall-make arrangements to meet at the Sheetz store on U. S. 15 in Lewisburg, Pennsylvania, unless they have agreed for the receiving party to pick up the children from the other party's home. 10. The parties shall ensure that regular telephone contact is permitted between the children and the non-custodial parent. 11. The parties shall do nothing, nor shall they permit third parties, to estrange or alienate the children from the natural love and affection for the other party. BY THE COURT, Nathan Wolf, Esquire For the Plaintiff Douglas Miller, Esquire For the Defendant as 3J { F M ?+1can.wx V Off, U a k?, lie VERIFICATION I, the undersigned, do hereby verify that the facts set forth in this petition are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. February , 2009arr? C Bryan T. Dunn NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241A436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. KELLY J. DUNK, Defendant : CIVIL ACTION - LAW : NO. 2008 -2929 CIVIL TERM : IN CUSTODY CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, have served a true and correct copy of Plaintiffs' Petition for Contempt upon the following persons and in the matter indicated: SERVICE BY U.S. MAIL: Date: February, 2009 Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 Respectfully submitted, WOLF F By: Nathan C. o , Esquire 10 West High Street Carlisle, PA 17013 (717) 2414436 Supreme Court ID # 87380 Attorney for Plaintiff c") rv l? r. rY t z l S ?} FEB 1 1 2000c, BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW KELLY J. DUNN, : NO. 2008 -2929 CIVIL TERM Defendant : IN CUSTODY ORDER OF COURT AND NOW this day of .l.kZf-iQ/L4l , 2009, upon consideration of the foregoing Petition and based upon the Court's prior indication to counsel on January 22, 2009, wherein counsel was informed that upon receipt of a contempt petition in this matter, the Court would enter an Order directing a hearing be scheduled without the requirement of a conciliation conference, it is hereby ORDERED that a hearing will be held on the instant petition on the ? day of /", 2009, at _,3_:co P--•m. in Courtroom 4 of the Cumberland County Courthouse,1 Courthouse Square, Carlisle, Pennsylvania, 17013. BY THE COURT: -/I A. HESS, J. bution: athan C. Wolf, Esquire For the Plaintiff/Petitioner Douglas G. Miller, Esquire For the Defendant/Respondent (wp?'O.S .2,110 4 ? O?: tf it 2009 FES 18 Pil I : 0/" 1 BRYAN T. DUNN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 08-2929 CIVIL KELLY J. DUNN, Defendant IN CUSTODY IN RE: OPINION PURSUANT TO RULE 1925 In this custody case, the plaintiff has appealed our order which denied his petition for primary custody of the parties' minor children and allowed the mother to relocate with the children. Prior to 2007, the parties resided in Smethport, located in McKean County. From the time of the birth of the minor children, Christopher now age thirteen, and Katherine now age nine, Mrs. Dunn stayed home to raise the children. She has been their primary caretaker. Meanwhile, Mr. Dunn continued to work several jobs, including as a paramedic. He works, on average, sixty hours per week. This arrangement reflected the situation acceptable to both parties. In April of 2007, Mr. Dunn moved to Carlisle, in Cumberland County. While in Smethport, Mr. Dunn had an affair with his current girlfriend, Nikki Slocum. He claims that that relationship ended prior to his relocation to Carlisle. In June of 2007, Mrs. Dunn agreed to relocate herself and the children to Carlisle with the understanding that Mr. Dunn had ended his relationship with Ms. Slocum. In the summer of 2007, Ms. Slocum also moved to Carlisle. Incredulously, Mr. Dunn claims that he had no idea that Ms. Slocum was moving to Carlisle at that time, claiming that it was a coincidence. When the parties relocated, they entered into a one-year lease for a townhouse in Carlisle. Prior to the parties' lease-term ending on June 30, 2008, Mrs. Dunn attempted to obtain a three- NO. 08-2929 CIVIL month extension for her and the children. It was discovered, however, that as early as May of 2008, Mr. Dunn and his girlfriend, Ms. Slocum, had signed an application to lease the parties' townhouse. Mr. Dunn and Ms. Slocum eventually signed a new lease agreement, thereby effectively preventing Mrs. Dunn and the children from continuing their residence in the home. Over the years, Mr. Dunn has maintained a reasonably good relationship with his daughter, Katherine. Mr. Dunn's relationship with Christopher, however, has been acrimonious, to say the least. It is clear from the record that Mr. Dunn never learned to communicate with Christopher. He dealt with his son by screaming and yelling at him and using physical force. Presently, Christopher does not wish to see his father or speak to him on the phone. At the same time, Mr. Dunn engaged in physical altercations with Mrs. Dunn. In an undated letter to Mrs. Dunn written sometime after their relocation to Carlisle, Mr. Dunn admitted his shortcomings and expressed the hope that Christopher would not follow in his footsteps. Among other admissions, Mr. Dunn claimed that he was a failure as a father. On April 25, 2008, Mrs. Dunn filed a petition for protection from abuse alleging that Mr. Dunn had grabbed and shoved her causing her bruising and pain. A protective order was subsequently entered by agreement. Forced from the townhouse, Mrs. Dunn lived in a temporary apartment with no ability to locate meaningful employment due to the cost of child care. She has been without family members to support her in this regard as all of her family lives in northern Pennsylvania. Somehow, the children manage to do well in school and Chris has been actively involved in church, soccer and the band. As previously noted, however, he has no relationship with his father. 2 NO. 08-2929 CIVIL Based on the foregoing facts, we entered an order dated November 21, 2008, granting primary physical custody of the children to Mrs. Dunn and permitting her to relocate to the McKean/Potter County area at the end of the 2008-2009 school year. Mr. Dunn would have the children during the summer vacations. Holidays have been distributed equitably on an alternating schedule. In his appeal, Mr. Dunn asserts that we erred in granting Mrs. Dunn permission to relocate with the children and, more specifically, that: (1) Mrs. Dunn did not offer enough testimony to support her claim that relocation would be in the best interest of the children; (2) Mrs. Dunn's testimony concerning relocation was speculative at best; (3) The testimony established Mrs. Dunn sought to use relocation to alienate the children from Mr. Dunn; (4) The children indicated a clear preference to remain in Carlisle; (5) Mrs. Dunn fails to reinforce the relationship between Mr. Dunn and Christopher; and (6) Our decision failed to properly consider the factors set forth in Gruber v. Gruber, 583 A.2d 434 (Pa.Super. 1990). In any child custody case, the paramount concern is the best interest of the child and this standard requires a case-by-case assessment of all of the factors that may legitimately affect the physical, intellectual, moral and spiritual well being of the child. Hogrelius v. Martin, 950 A.2d 345 (Pa.Super. 2008). When a custody case includes a request by one of the parents to relocate with the child, then the best interest analysis must incorporate the three factors set forth in Gruber. Klos v. Klos, 934 A.2d 724, 728 (Pa.Super. 2007). Those factors consider: (1) The potential advantage of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent; (2) The integrity of the motives of both the 3 NO. 08-2929 CIVIL custodial and noncustodial parent in either seeking the move or seeing to prevent it; and (3) The availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the noncustodial parent. Id. quoting Collins v. Collins, 897 A.2d 466, 471 (Pa.Super. 2006). Mr. Dunn first argues that Mrs. Dunn offered no testimony in support of her claim that relocation would be in the best interest of the children nor that she was unable to find suitable housing or employment in Carlisle. We disagree. Mrs. Dunn made a strong case for her return to the county where these children were raised and where her family is located. She testified, credibly, that she was unable to find suitable housing and employment in the Carlisle area particularly because of the high cost of child care and because she had no family in the immediate area to watch the children when she worked. Mr. Dunn has effectively evicted Mrs. Dunn from the townhouse that they rented and is currently leasing the same townhouse with his girlfriend. In a related vein, Mr. Dunn argues that Mrs. Dunn's testimony concerning relocation is speculative. This defies common sense. Mrs. Dunn intends to relocate to an area where she has lived for years. There is nothing speculative about her knowledge of her hometown area. By relocating, Mrs. Dunn will have available to her a number of close relatives to watch the children so that she can find employment. We do not believe that the Gruber test requires Mrs. Dunn to show that she has a specific job in mind when the benefits of relocating are otherwise so obvious. We believe this is particularly so in a case like this one where the mother was induced to come to Cumberland County under false pretenses and, once here, was effectively abandoned. In the meantime, we do not believe that switching schools after two years in Carlisle will be against the 4 ¦ NO. 08-2929 CIVIL best interest of the children. The same educational and social opportunities will exist in McKean County and there they will have even greater emotional support. As noted, Mr. Dunn claims that Mrs. Dunn's desire is grounded in her desire to alienate the children from Mr. Dunn. The testimony simply does not support this allegation. In fact, to the degree that there is alienation, we are satisfied that it is Mr. Dunn who is responsible. Mrs. Dunn has repeatedly attempted to coerce Christopher into complying with the requirement that he visit with his father. In addition, the testimony does not support Mr. Dunn's contention that it is the desire of the children to remain in Carlisle. Katherine made it clear that she enjoyed the Coudersport area and had friends there. She did express some concern that moving would cut down on the time spent with her father. Christopher presented as an extremely mature thirteen-year-old. He indicated that he was comfortable in both Carlisle and Smethport. Interestingly, he is close to his older relatives who live on the northern tier. It is clear that they care for him and are supportive. We sense that this is an important emotional benefit in light of Christopher's estrangement from his father. For all of the foregoing reasons, we are satisfied that the order entered in this case is the correct one. It will, in our opinion, ultimately serve the best interest of these children. March 5' , 2009 Nathan C. Wolf, Esquire /For the Plaintiff ? Douglas G. Miller, Esquire For the Defendant (2O t ?E '. ?, ?,L ?? c, 09 s ?'1 r ? ? ? ? .?. rs ?? • . ? ,_?,?? ?? ?? .ct ?;. ?? O cr CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Bryan T. Dunn VS. Kelly J. Dunn 2008-2929 Civil Term 101 MDA 2009 The documents comprising the record have been numbered from No.l to 419, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 03/09/2009. C Lon , t on ary Regina Lebo An additional coin of this certificate is enclosed. Please sign and date copy, thereby acknowledeine receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland ss: In TESTIMONY WHEREOF, I have hereunto this 9th 1, Curtis R. Iona , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein B3=an T _ T1 inn Plaintiff, and Ke11y J. Dunn. Defendant , as the same remains of record before the said Court at No. 2008-2929 of Civil Term, A. D. 19 . set my hand and affixed the seal of said Court day of ,,* March 4 A. D., :113tQQ2. Prothonotary I, Edgar B. Bayley President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that Curtis R. Long by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of trnber and in the Commonwealth of Pennsylvania, duly commissioned and qualifi all of whose acts as such full faith and credit are and ought to be given as well in Courts of judic re as e1s h d that the said record, certificate and attestation are in due form of law and madiF ly the vro r of Commonwealth of Pennsylvania County of Cumberland ss: President I, Curtis R. Long Prothon t ryry of the Co rt of Common Pleas in and for the said County, do certify that the Honorable 99? B. BayIJ-ey by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 9th ay of Marcb. A.D. Kx2009 Prothonotary Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of Cumberland 101 MDA 2009 to No. 2008-2929 Civil Term, 19 COPY OF Appearance Bryan T. Dunn VS. Kelly J. Dunn in the Commonwealth of Pennsylvania is contained the following: DOCKET ENTRY **SEE CERTIFIED COPY OF THE DOCKET ENTRIES** 'o z 0 0 rri y y b ° o 3 CL w a x t? A O o I G G H g 0 0 0 r N O O I t1 0 J11 .. tllltLUC.L J. Catlu %-%J UIi t-y r.L V t.iLVi iv t. aty 7 ?L.L IVr... Civil Case Print rays y 2008-02929 DUNN BRYAN T (vs) DUNN KELLY J Reference No. Filed......... 5/08/2008 Case Type...... COMPLAINT - J d CUSTODY Time. ... 1.57 u gment..... 00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN ;A Jury Trial... . Disposed Desc.: ------------ Case Comment - ---- - Disposed Date . 0/00/0000 s ------ - Higher Crt 1.: 101 MDA 2009 Higher Crt 2.: General Index Attorney Info DUNN BRYAN T PLAINTIFF WOLF NATHAN C P 0 BOX 281 CARLISLE PA 17013 DUNN KELLY J DEFENDANT 1874 DOUGLAS DRIVE CARLISLE PA 17013 * Date Entries FIRST ENTRY - - - - - - - - - 5/08/2008 COMPLAINT - CUSTODY - BY NATHAN C WOLF ATTY FOR PLFF ------------------------------------------------------------------- 5/15/2008 ORDER OF COURT - 5/14108 IN RE: CO1?PLAINT FOR CUSTODY - PREHEARING CUSTODY CONFERENCE SCHEDULED FOR 6•/16 08 AT 8:30 AM 4TH FLOOR CUMBERLAND COUNTY COURTHOUSE - BY JACQUELINE M VERNEY ESQ CUSTODY CONCILIATOR - COPIES MAILED 5/15/06 ----------------------------------'--------------------------------- -?o? 5/30/2008 ORDER OF COURT - 5/30/08 IN RE: CUSTODY CONCILIATION SUMMARY REPORT - HEARING IS SCHEDULED FOR 8 20 08 AT 9:30 AM IN CR4 UNTY OFMCOURRTDATED 5/28/08 ATUDOCKETHNOCOS 22673PAREIHEREBYOVACATEDR- BY KEVIN A HESSJ - COPIES MAILED 5/30/08 ------------------------------------------------------------------- / 7/17/2008 AFFIDAVIT OF SERVICE - SUBPOENA - BY TRACI D SMITH ----------------------------------F--------------------------------- / 8/07/2008 CER9IFICATEDPREREQUISITE TO SERVICE DEFT SUBPOENA PURSUANT TO RULE -------------------------------------------------------------------- 8/13/2008 4ERTIFICATEE PREREQUISITE TO SERVICEFOF A SUBPOENA PURSUANT TO RULE ATTY, DEFT ---------------- --------------------------------------------------- 8/19/2008 PETITION FOR SPECIAL RELIEF - BY DOUGLAS G MILLER ATTY FOR DEFT ---------------------------------------------- 8/21/2008 ORDER - 8L21/08 - CONTINUED HEARING IN THE ABOVE CAPTIONED MATTER IS SET FOKK 10123/08 AT 9:30 AM IN CR4 C BERLAND COUNTY COURTHOUSE BY KEVIN A HESS J - COPIES MAILED 8/21/08 ay' 8/28/2008 OSDSET FOR210/023?/080ISIRE CHE?E DGFOR 10?2?08 ACAPT3IONED PM INTCR4 8C/UMBgRLAND COUNTY COURTHOUSE - BY KEVIN A HESS J - COPIES MAILED 08 ---------------------------------------------------- ----//-----------) 30 23 11/21/2008 ORDER - 11,Z221/08 IN RE: CUSTODY - BY KEVIN A HESS J COPIES MAILED 11//1//08 --------------------------'----------------------------------------- 3y _319'12/19/2008 NOTICE OF APPEAI; - NATHAN C WOLF ATTY FOR PLFF --------------------------------- ---------------------------------- 39 12/29/2008 ORDER - 12/28/08: IN RE: APPEAL OF PLFF - BY KEVIN A HESS J - COPIES MAILED 12/29/08 ------------------------------------------------------------------- !'Gi-l?oZ 1/15/2009 CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL PURSUANT TO PA RAP 1925 B -'BY NATHAN C WOLF ATTY FOR PLFF ----------------------------------7--------------- ----------------- 11?- 1/15/2009 MENDED NOTICE OF APPEAL - SUPERIOR COURT - BY NATHAN C WOLF ATTY FOR PLFF -------------------------------- ----------------------------------- Jlb-S? 1/21/2009 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 101 MDA 2009 1/20/2009 CERTIFICATE OF S----------------------------------------'---------- S3 ERVICE - AMENDED NOTICE OF APPEAL UPON J HESS - BY NATHAN C WOLF ATTY FOR PLFF Civil Case Print 2008-02929 DUNN BRYAN T (vs) DUNN KELLY J Reference No... Filed......... 5/08/2008 Case Type.....: COMPLAINT - CUSTODY Time...... . 1:57 Judgment..... 00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 101 MDA 2009 Higher Crt 2.: ------------------------------------------------------------------- 5 V-0-•? 27 1/28/2009 TRANSCRIPT OF PROCEEDINGS BEFORE' HONORABLE KEVIN A HESS J 8/20/08 THE FOREGOING RECORD OF THE PROCEEDINGS ON THE HEARING IS HEREBY APPROVED AND DIRECTED TO BE FILED .KEVIN A HESS JUDGE --------------------------------------- .Y2 -i/X2/09/2009 TWSQRIPT OF PROCEEDINGS BEFORE HONORABLE KEVIN A HESS J 10/24/2008 KEVIN A HESS J --------------------------------- LfQa_464?2/11/2009 PETITION FOR CONTEMPT FILED BY NATHAN C WOLF ESQ -------------------------------------------------------09 ,S!!U/ 2/18/2009 SCHEDULEDCFORT3/.1809/AT PETINICR4TIONCUMBERLANDFOR IS COURTHOUSE - BY.KE IN A HESS J - COPIES MAILED 2 1809 ---------------------------------- - L?//*?_Z//f3/06/2009 IN RE: OPINION PURSUANT3T /09 E 19225 - DATED 3/5/09 - BY KEVIN A ------------------------------------------------------------------- 3/09/2009 NOTICE OF DOCKET ENTRIES MAILED TO NATHAN WOLF ESQ AND DOUGLAS G MILLER ESQ . - - - - - - - - - - LAST ENTRY . - * Escrow Information * Fees & Debits Beq Bal Pmts/Adj End Bal CUSTODY AGMT 135.00 135.00 .00 TAX ON AGMT .50 50 .00 SETTLEMENT 8.00 8..00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 CUSTODY FEE 5.60 5.60 .00 CUSTODY FEE-CO 1.40 1.40 .00 SUBPOENA 3.00 3.00 .00 SUBPOENA 3.00 3.00 .00 SUBPOENA 9.00 9.00 .00 SPEC RELIEF CUS 70.00 70.00 .00 SUBPOENA 3.00 3.00 .00 APPEAL HIGH CT 48.00 48.00 .00 CONTEMPT CUSTOD 70.00 70.00 .00 ------------------------ ------------ 371.50 371.50 .00 * End of Case Information In Testimony wh. a ?; t my heed and the seal of said Courl at Carlisle, Pa. This ..../...... day ..... .. tea..:.... :.,P :... .. Prothonota BRYAN T. DUNN, Plaintiff/Respondent, V. KELLY J. DUNN, Defendant/Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : 2008 - 2929 CIVIL TERM IN CUSTODY DEFENDANT'S ANSWER TO PETITION FOR CONTEMPT AND NOW this 17th day of March, 2009, comes the Defendant, KELLY J. DUNN, by and through her attorneys, Irwin & McKnight, P.C., and respectfully files this Answer to the Plaintiffs Petition for Contempt, and in support thereof avers as follows: 1. The averments of fact contained in paragraph one (1) of the Petition are admitted. 2. The averments of fact contained in paragraph two (2) are admitted. 3. The averments of fact contained in paragraph three (3) are admitted. 4. The averments of fact contained in paragraph four (4) are admitted. 5. The averments contained in paragraph five (5) are denied as stated. The Custody Order speaks for itself, but specifically with regard to Father's periods of partial custody, it states that they are to "coincide with father's work schedule" and be coordinated with "father's work schedule." Despite repeated requests from Defendant and her legal counsel, Father has failed and refused to provide a copy of his work schedule, and has frequently had to postpone or change his periods of partial custody because of purported changes to his work schedule. The remaining averments in paragraph five (5) are specifically denied and strict proof thereof is demanded at trial. 6. The averments contained in paragraph six (6) are denied as stated. It is admitted that despite Mother's best efforts, Christopher has refused to go with his Father on certain periods of partial custody. But by way of further answer, Father by his own actions in arguing with Christopher and creating unnecessarily hostile situations has detrimentally affected his relationship with his son, directly affecting Christopher's willingness to spend time with Father. The remaining averments in paragraph six (6) are specifically denied and strict proof thereof is demanded at trial. 7. The Custody Order attached as Exhibit "A" to Plaintiff's Petition for Contempt speaks for itself and provides that Father shall be responsible for transportation when picking the children up and for picking up and dropping the children off for his evening visits. The remaining averments in paragraph seven (7) are specifically denied and strict proof thereof is demanded at trial. 8. The averments contained in paragraph eight (8) are denied as stated. Initially, custody of the minor children was governed by a Final Protection From Abuse Order dated May 28, 2008, and docketed in the Cumberland County Court of Common Pleas at No. 2008-2673. As a result of the said PFA Order, the parties had been conducting exchanges at either the North Middleton or Carlisle Police Stations. While it was Mother's preference that exchanges continue to occur at a neutral site, she subsequently agreed to exchanges at the residences of the parties, as long as Father did not enter her home as governed by the aforementioned PFA Order. The remaining averments in paragraph eight (8) are specifically denied and strict proof thereof is demanded at trial. 9. The averments contained in paragraph nine (9) are denied as stated. It is admitted that despite Mother's best efforts, Christopher has refused to go with his Father on certain periods of partial custody. But by way of further answer, Father by his own actions in arguing with Christopher and creating unnecessarily hostile situations has detrimentally affected his relationship with his son, directly affecting Christopher's willingness to spend time with Father. The remaining averments in paragraph six (6) are specifically denied and strict proof thereof is demanded at trial. 2 10. The averments contained in paragraph ten (10) are denied as stated. Initially, custody of the minor children was governed by a Final Protection From Abuse Order dated May 28, 2008, and docketed in the Cumberland County Court of Common Pleas at No. 2008-2673. As a result of the said PFA Order, the parties had been conducting exchanges at either the North Middleton or Carlisle Police Stations. While it was Mother's preference that exchanges continue to occur at a neutral site, she subsequently agreed to exchanges at the residences of the parties, as long as Father did not enter her home as governed by the aforementioned PFA Order. The remaining averments in paragraph ten (10) are specifically denied and strict proof thereof is demanded at trial. 11. The averments contained in paragraph eleven (11) are denied as stated. Initially, custody of the minor children was governed by a Final Protection From Abuse Order dated May 28, 2008, and docketed in the Cumberland County Court of Common Pleas at No. 2008-2673. As a result of the said PFA Order, the parties had been conducting exchanges at either the North Middleton or Carlisle Police Stations. While it was Mother's preference that exchanges continue to occur at a neutral site, she subsequently agreed to exchanges at the residences of the parties, as long as Father did not enter her home as governed by the aforementioned PFA Order. The remaining averments in paragraph eleven (11) are specifically denied and strict proof thereof is demanded at trial. 12. The averments of fact contained in paragraph twelve (12) are specifically denied and strict proof thereof is demanded at trial. 13. The averments contained in paragraph thirteen (13) are denied as stated. Initially, custody of the minor children was governed by a Final Protection From Abuse Order dated May 28, 2008, and docketed in the Cumberland County Court of Common Pleas at No. 2008-2673. As a result of the said PFA Order, the parties had been conducting exchanges at either the North Middleton or Carlisle Police Stations. While it was Mother's preference that exchanges continue to occur at a neutral site, she subsequently agreed to exchanges at the residences of the parties, as 3 long as Father did not enter her home as governed by the aforementioned PFA Order. The remaining averments in paragraph thirteen (13) are specifically denied and strict proof thereof is demanded at trial. 14. The averments of fact contained in paragraph fourteen (14) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Mother's best efforts in ensuring compliance with the Custody Order included contacting the Carlisle Police Department in the belief that they could ensure that Christopher went with his Father. As indicated in the Carlisle Police incident report, Mother was "distraught about her son refusing to leave with his father" and contacted the police in the belief that they could assist obtaining compliance from Christopher. A true and correct copy of the revised Carlisle Police incident report from December 19, 2008, is attached hereto and incorporated herein as Exhibit "A." 15. The averments contained in paragraph fifteen (15) are admitted in part and denied in part. It is admitted that the parties agreed to alternate holiday schedule, but after reasonable investigation, Mother is without knowledge or information sufficient to form a belief as to whether Father was unavailable due to his work schedule. Despite repeated requests from Defendant and her legal counsel, Father has failed and refused to provide a copy of his work schedule, and has frequently had to postpone or change his periods of partial custody because of purported changes to his work schedule. It is further admitted that Father, by his own actions in arguing with Christopher and creating unnecessarily hostile situations, has detrimentally affected his relationship with his son, directly affecting Christopher's willingness to spend time with Father. The remaining averments in paragraph fifteen (15) are specifically denied and strict proof thereof is demanded at trial. 16. The averments contained in paragraph sixteen (16) are denied as stated. It is admitted that despite Mother's best efforts, Christopher has refused to go with his Father on certain periods of partial custody. But by way of further answer, Father by his own actions in arguing with Christopher and creating unnecessarily hostile situations has detrimentally affected 4 his relationship with his son, directly affecting Christopher's willingness to spend time with Father. It is also admitted that because of harassing telephone calls and text messages from Father and his paramour, Mother was forced to obtain a new cell phone number. The remaining averments in paragraph sixteen (16) are specifically denied and strict proof thereof is demanded at trial. 17. The averments contained in paragraph seventeen (17) are denied as stated. It is admitted that the police refused to physically force Christopher into Father's vehicle. The remaining averments of paragraph seventeen (17), including any inference that Father is without responsibility for his own behavior and his relationship with Christopher, are specifically denied and strict proof thereof is demanded at trial. 18. The averments contained in paragraph eighteen (18) are admitted in part and denied in part. It is admitted that the parties' daughter has gone with Father for those periods of partial physical custody not affected by Father's heavy work schedule. The remaining averments in paragraph eighteen (18), including any inference that Mother is attempting to thwart Father's periods of partial custody or that it is her responsibility to provide entertainment for those periods of partial custody, are specifically denied and strict proof thereof is demanded at trial. 19. The averments contained in paragraph nineteen (19) are denied as stated. It is admitted that despite Mother's best efforts, Christopher has refused to go with his Father on certain periods of partial custody. But by way of further answer, Father by his own actions in arguing with Christopher and creating unnecessarily hostile situations has detrimentally affected his relationship with his son, directly affecting Christopher's willingness to spend time with Father. The remaining averments in paragraph nineteen (19) are specifically denied and strict proof thereof is demanded at trial. 20. The averments of fact contained in paragraph twenty (20) are admitted. 21. The averments of fact contained in paragraph twenty-one (21) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Mother has 5 consistently been increasing both the punishment and absence of rewards for Christopher when he refuses to attend Father's periods of partial physical custody, and any inference to the contrary is specifically denied. 22. The averments of fact contained in paragraph twenty-two (22) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, on one particular period of partial physical custody, Father voluntarily returned Christopher to Mother within several hours and prior any overnight custody occurring. 23. The averments of fact contained in paragraph twenty-three (23) are conclusions of law to which no response is required. To the extent that a response is required, all of the averments are specifically denied and strict proof thereof is demanded at trial. 24. The averments contained in paragraph twenty-four (24) are denied as stated. It is admitted that Father by his own actions in arguing with Christopher and creating unnecessarily hostile situations has detrimentally affected his relationship with his son, directly affecting Christopher's willingness to spend time with Father. The remaining averments in paragraph twenty-four (24) are specifically denied and strict proof thereof is demanded at trial. 25. The averments of fact contained in paragraph twenty-five (25) are conclusions of law to which no response is required. To the extent that a response is required, all of the averments are specifically denied and strict proof thereof is demanded at trial. To the contrary and by way of further answer, it is Father that has shown his inability to be flexible and commit to repairing his relationship with his son, rather than loudly assert his perceived rights and claims. 26. The averments of fact contained in paragraph twenty-six (26) are conclusions of law to which no response is required. To the extent that a response is required, all of the averments are specifically denied and strict proof thereof is demanded at trial. 27. The averments of fact contained in paragraph twenty-seven (27) are specifically denied and strict proof thereof is demanded at trial. 6 28. The averments of fact contained in paragraph twenty-eight (28) are specifically denied and strict proof thereof is demanded at trial. 29. The averments of fact contained in paragraph twenty-nine (29) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Mother has consistently expressed her willingness to obtain counseling services for Christopher as long as insurance coverage is available or the expenses are not burdensome. 30. The averments of fact contained in paragraph thirty (30) are conclusions of law to which no response is required. To the extent that a response is required, all of the averments are specifically denied and strict proof thereof is demanded at trial. 31. The averments of fact contained in paragraph thirty-one (31) are conclusions of law to which no response is required. To the extent that a response is required, all of the averments are specifically denied and strict proof thereof is demanded at trial. 32. The averments of fact contained in paragraph thirty-two (32) are conclusions of law to which no response is required. To the extent that a response is required, all of the averments are specifically denied and strict proof thereof is demanded at trial. 33. The averments of fact contained in paragraph thirty-three (33) are admitted. 34. The averments of fact contained in paragraph thirty-four (34) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, because of harassing telephone calls and text messages from Father and his paramour, Mother was forced to obtain a new cell phone number. Father also initially agreed to have a prior cell phone repaired in order to facilitate his communication with the children. Despite repeated requests, Father has failed and refused to return the prior cell phone as he promised. Therefore, in an effort to ensure avenues of communication yet shield herself from renewed harassment, Mother provided Father with a list of contacts in order to reach her in the event of an emergency or while the children are in his custody. 7 35. The averments of fact contained in paragraph thirty-five (35) are specifically denied and strict proof thereof is demanded at trial. 36. The averments contained in paragraph thirty-six (36) are denied as stated. It is admitted that legal counsel participated in meeting with the Court regarding the custody situation. The remaining averments in paragraph thirty-six (36) are specifically denied and strict proof thereof is demanded at trial. 37. The averments of fact contained in paragraph thirty-seven (37) are conclusions of law to which no response is required. To the extent that a response is required, all of the averments, including any inference that Mother had a full and fair opportunity to explain the harassing calls and messages from Father and his paramour or to provide for alternative channels of communication, are specifically denied and strict proof thereof is demanded at trial. 38. The averments contained in paragraph thirty-eight (38) are denied as stated. It is admitted that in an effort to ensure avenues of communication yet shield herself from renewed harassment, Mother provided Father with a list of contacts in order to reach her in the event of an emergency or while the children are in his custody. The list of contacts included not only Christopher's Youth Pastor, but also one of Mother's friends. The remaining averments in paragraph thirty-eight (38) are specifically denied and strict proof thereof is demanded at trial. 39. The averments of fact contained in paragraph thirty-nine (39) are conclusions of law to which no response is required. 40. The averments of fact contained in paragraph forty (40) are admitted. 41. The averments contained in paragraph forty-one (41) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Mother's legal counsel was not informed of the instant petition, but instead had discussed and agreed to a meeting of the parties and their legal counsel in order to discuss and improve Christopher's compliance with the Custody Order. Just prior to the scheduled meeting, Father and his legal counsel cancelled and subsequently filed the instant Petition for Contempt. 8 WHEREFORE, Defendant, Kelly J. Dunn, respectfully requests this Honorable Court to deny Plaintiff's Petition for Contempt in this matter and prayer for relief, along with such other and further relief as this Court deems just. Respectfully submitted, IRWIN & McKNIGHT By: _ #. A A'6' Dots G er, Esquire Supreme Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant, Date: March 17, 2009 9 VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unworn falsification to authorities. )" //), LA?q? KELLY J. DUMN/ Date: 3/17/09 EXHIBIT "A" (DISIPINC) MJD1 UCFPCAR5 DISPATCH INCIDENT: 20081200917 CAR PAGE: 1 CALL TYPE: JUVENILE PROBLEM LOCATION GRID CCL UCR IPG DISPO PRI ------------------------------------------------------•------------------------- 00351 W NORTH ST 0100 271 0000 Y 03 3 ALARM CTAK DPAT VEH-REGISTRAT MAKE DATE RECV'D::SP ARRV CLR TOTT REP -------------------------------------------------------------------------------- N DAD3 DAD3 20081219 2029 2032 2036 2125 0056 N UNIT BADG OFFICER -----------------------------------------------------•-------------------------- 29 29 FREEDMAN DANIEL J 20081219 2032 2036 2125 28 28 COLLARE CHRISTOPHER S 20081219 2032 2036 2125 NAMES: DUNN DUNK BRYAN (0) FATHER DUNN CHRISTOPHER (0) SON KELLY (R) 717 609 3'781 717 999 9999 717 99': 9999 COMMENTS KELLY DUNN REPORTING HER 13 YR OLD SON IS TO GO DAD3 81219 2032 VISIT HIS FATHER PER CUSTODY AGREEMENT AND HE WONT GET INTO THE VEH. PTLM 29 & 28 ON CALL. C;aCl BRYAN DUNN WAITING IN HIS VEHICLE IN THE BACK Mimi ALLEY FOR HIS SON CHRIS. CHRIS DOES NOT WANT TO C,-.;C1 GO BECAUSE HE DOES NOT LIKE DAD'S NEW GIRLFRIEND AND IS AFRAID HE WILL BE LEFT ALONE WITH HER. DAD IS NOT WILLING TO AGREE TO BRING CHRIS HOME THE NEXT DAY IF THINGS DO NOT GO WELL AND CHRIS IS NOT WILLING TO GO ALONG. KELLY DUNN AGREED TO PICK CHRIS UP THE FOLLOWING EVENING IF THINGS ARE NOT GOING WELL AND IN THE END CHRIS AGAIN CHANGED HIS MIND REFUSING TO GO WITH HIS FATHER. KELLY DUNN DISTRAUGHT ABOUT HER SON REFUSING TO LEAVE WITH HIS FATHER. 29 SPENT MORE THAN 40 MINS. COUNSELING ALL PARTIES INVOLVED WITH LITTLE COMPROMISE FROM ANY. KELLY DUNN DISTRAUGHT ABOUT HER SON REFUSING TO GO WITH HIS FATHER AND SHE WAS ADVISED THAT WE CAN NOT PHYSICALLY FORCE HIM INTO A VEHICLE WITH HIS FATHER. AFTER REACHING WHAT SEEMED TO BE REASONABLE COMPROMISES CHRIS DUNN EVENTUALLY REFUSED TO GO WITH HIS FATHER BECAUSE HE WOULD NOT BRING HIM HOME THE NEXT DAY IF THINGS WERE NOT GOING WELL. 81220 101 90107 1341 81220 101 blJD]. 90107 1344 01/07/09 - THIS LOG WAS UPDATED TO REFLECT THE FATHERS FIRST NAME OF BRYAN AFTER KELLY REQUESTED A COPY OF THE LOG UNDER RIGHT-TO-KNOW AND INDICAT- (DISIPINC) DISPATCH INCIDENT: 20081200917 CAR ED THAT WE HAD THE FATHERS FIRST NAME INCORRECTLY LISTED. AN UPDATED COPY OF THIS LOG WAS FAXED TO STACEY HAMILTON AT BOROUGH HALL. MJD1 UCFPCARS PAGE: 2 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below both by email and by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Nathan C. Wolf, Esquire Wolf & Wolf 10 West High Street Carlisle, PA 17013 Date: March 17, 2009 IRWIN & McKNIGHT a Douglas Miller, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant N C? - e a C» CO 1, F + t i r co .-D Co -< BRYAN T. DUNN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 08-2929 CIVIL KELLY J. DUNN, : Defendant IN CUSTODY IN RE: PETITION FOR CONTEMPT ORDER AND NOW, this 3i ' day of March, 2009, action on the pending contempt petition is DEFERRED on condition and with the direction to the mother that she continue her efforts to encourage Christopher to visit with his father and that she keep in place disciplinary measures to enforce visitation. The court is satisfied that the intervention of a professional is required in this case and the court is prepared to meet with counsel, upon the request of either, to discuss the selection of a counselor or psychologist to assist in repairing the relationship between father and son. Counsel should be prepared to discuss the extent to which insurance coverage may facilitate or limit the selection of an appropriate professional. BY THE COURT, ZNathan Wolf, Esquire For the Plaintiff Douglas Miller, Esquire For the Defendant rlm COP l' mac 3? 3 tl ? y? Kevin Y. Hess, J. ARY AilI1:27 if,^ 4.",4, {Y? { a NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. KELLY J. DUNN, Defendant : CIVIL ACTION - LAW : NO. 2008 -2929 CIVIL TERM : IN CUSTODY PETITION FOR SPECIAL RELIEF AND NOW, comes the petitioner, Bryan T. Dunn, by and through his attorney, Nathan C. Wolf, Esquire, and present the following petition for contempt, representing as follows: 1. The petitioner is Bryan T. Dunn, an adult individual residing at 1874 Douglas Drive, Carlisle, Cumberland County, Pennsylvania 17013. 2. The respondent is Kelly J. Dunn, an adult individual formerly residing at 351 West North Street, Carlisle, Cumberland County, Pennsylvania 17013. 3. The parties are the natural parents of two (2) minor children born of their marriage, namely: Christopher Bryan Dunn, born April 26, 1995, and Katharine Elizabeth Dunn, born October 18, 1999. 4. The parties are subject to a custody Order issued by this Court dated November 21, 2008. A true and correct copy of this Order is attached hereto as Exhibit A. 5. Father has filed an appeal of the November 21, 2008 Order to the Superior Court of Pennsylvania for which both parties have submitted briefs and are now awaiting the scheduling of oral argument, but said appeal remains pending as of the time of the filing of this petition. 6. Pursuant to paragraph 1 of the Custody Order, the parties have shared legal custody of both children. 7. At the time this Order was entered, the relationship between Father and son was strained. 8. Petitioner believes that the original Custody Order was entered in substantial reliance from in camera testimony of the son, which testimony reflected the strained nature of the relationship between Father and Son at that time. 9. Between the entry of the original Custody order and February 2009, visitation between Father and son was not been in substantial compliance with this Order, and Father had extremely limited contact with the child. 10. The obstructed visitation between Father and son has been the subject of a Petition for Contempt filed in February 2009, on which this Court deferred ruling. A true and correct copy of the Court's Order of March 31, 2009, allowing for a conference in chambers with counsel to discuss the involvement of a professional to assist in repairing the relationship between Father and son, is attached hereto as Exhibit B. 11. The Order of March 31, 2009 represents the most recent involvement of the Court in this case. 12. Since the entrance of the Order, the relationship between Father and son has substantially improved and developed, despite the fact that the visitation set forth in this Order was substantially frustrated between August 2008 and April 2009. 13. Prior to the end of the school year, the parties' son began visiting with Father, including spending overnights as set forth in the Order. 14. Pursuant to paragraph 2 of the Custody Order, Mother has primary physical custody of the children and was granted permission to relocate to Potter County, Pennsylvania at the end of the 2008-2009 school year. 15. Mother has relocated to Potter County and is residing with her parents in Roulette, Pennsylvania. 16. Since June 16, 2009, Father has had custody of the child. 17. Prior to June 16, 2009, the child contacted the undersigned and requested to speak with counsel for Plaintiff concerning the custody situation. 18. In or about early June, 2009, prior to the end of the school year, the child met with the undersigned outside of the presence of Father. 19. At that time, the child disclosed to the undersigned that he strongly wished to remain in Carlisle and not to relocate to Potter County with his mother. 20. The child voiced multiple reasons for wishing to remain in Carlisle, including many educational, extra-curricular and social opportunities which are not available to him in Potter County. 21. The child also expressed a strong desire to communicate with the Honorable Kevin A. Hess to have the opportunity to voice this position in hopes that the Court may modify the custody Order and permit him to remain in Carlisle in the custody of his Father. 22. The child also requested that this request be delayed until after June 16, 2009, when Mother was scheduled to return to Potter County, out of fear of repercussions which he believed he would suffer as a result of requesting to remain in the custody of Father. 23. Father is scheduled to have custody of the child until August 1, 2009. 24. The child has done well in Father's home and in developing his relationship with Father and it is respectfully submitted that the Court's prior Order was entered in reliance upon the strains in the relationship between Father and son which they have substantially resolved. 25. The child is now fourteen (14) years old, is very intelligent and mature for his age, and is able to clearly articulate the rationale behind his request to remain in Carlisle. 26. The undersigned respectfully submits that attempts were made to submit this request to for the Court's consideration but such efforts were impossible due to the Court's unavailability in the preceding two weeks. 27. Petitioner submits that despite any expected suggestion to the contrary, the child has reached this conclusion on his own and not as a result of pressure or attempts to persuade the child to come to this conclusion. 28. Nevertheless, Petitioner believes and therefore avers that the relief requested, namely offering the child the opportunity to communicate with the Court, and the consideration of that testimony in reaching a conclusion that the child can remain in Carlisle is certainly in the child's best interests. 29. Petitioner respectfully requests the opportunity for this Court to consider in camera testimony to this effect, from Son, before this relocation occurs and in order to prevent the child from missing the opportunity to be enrolled in the 2009-2010 school year in the Carlisle School District and to participate in his activities. 30. Petitioner would not oppose the entry of an Order providing Mother with a period of custody during the remaining weeks of this summer. 31. Counsel for Mother was contacted concerning the instant petition and does not concur in the relief requested. 32. The Honorable Kevin A. Hess has been the prior judge assigned to this matter. WHEREFORE, Petitioner, Bryan T. Dunn, respectfully prays that this Honorable Court receive in camera testimony from Christopher Bryan Dunn, in light of the substantial changes in the nature of the father-son relationship from the time the Custody order was entered, and in light of the imminent relocation which will deny this relationship an opportunity to further develop; along with any other relief the Court may deem appropriate. Respectfully submitted, WOLF & WOLF Date: July, 2009 Nam olf, Esquire 10 es igh Street Car sle, PA 17013 (717) 241-4436 Supreme Court ID # 87380 Attorney for Plaintiff VERIFICATION I, the undersigned counsel for Plaintiff, do hereby verify that the facts set forth in this petition are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. July 0 1 2009 BRYAN T. DUNN. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 08-2929 CIVIL KELLY J. DUNN, Defendant IN CUSTODY ORDER AND NOW, this 21 day of November, 2008, after hearing and upon consideration of the evidence presented and the legal arguments of counsel for the parties, we enter the following order: 1. The parties shall have shared legal custody of their two minor children, namely, Christopher Bryan Dunn, age thirteen years, and Katharine Elizabeth Dunn, age nine years. 2. The mother shall have primary physical custody of the children, and is granted permission to relocate to Potter County. Pennsylvania, but may not do so until the end of the 2008-2009 school year. 3. Prior to relocation, father shall have partial physical custody of Katharine as follows: a. On alternating weekends from Friday evening at 5:00 p.m. until Sunday evening at 5:00 p.m. to coincide with father's work schedule. b. One evening every other week from 4:00 P.M. until 8:00 p.m., which evening shall coordinate with father's work schedule, and shall be alternated with his evening with Christopher. EX/4l 6zT "A" 4. Prior to relocation, father shall have partial physical custody of Christopher as follows: a. Until January 2009, every other week for one evening from 4:00 p.m. until 5:00 p.m., which evening shall coordinate with father's work schedule, and shall be alternated with his evening with Katharine. b. After January 2009, on alternating weekends from Friday evening at 5:00 p.m. until Sunday evening at 5:00 p.m. to coincide with father's work schedule and his weekend-custody of Katharine. c. Unless provided in the holiday and summer schedule herein, at such other times as the parties may agree. 5. Prior to relocation, the parties shall alternate the major holidays as follows: a. Father shall have custody of the children for the Thanksgiving holiday and Christmas Eve day until 6:00 p.m. in even years, and mother shall have the same in odd years. b. Mother shall have custody of the children on the day after Thanksgiving and from Christmas Eve at 6:00 p.m. through Christmas Day in even years and father shall have the same in odd years. c. Father and mother shall alternate the Easter holiday with mother having custody of the children in odd years. d. Father and mother shall alternate the Memorial Day, Labor Day and Independence Day holidays to coincide with father's work schedule, of A`` p a however, no party shall have more than two of these holidays in one year. e. Father shall always have custody of the children on Father's Day from 9:00 a.m. until 5:00 p.m. and mother shall have the same period of time on Mother's Day. f. The parties shall cooperate to ensure that the children have some contact with the other parent on the children's birthdays. 6. The parties shall share transportation-of the children such that the receiving party-i.e., the party picking the children up, shall be responsible for transportation to the other party's home, except that father shall be responsible for picking up and dropping the children off for his evening visits. 7. Following relocation of the mother and children to Potter County, Pennsylvania, father shall have custody of the children during the summer vacations from the first Saturday after school recesses until the first Saturday in August. 8. Following relocation the parties shall have custody on holidays as follows: a. In even-numbered years, from the day after Thanksgiving at 10:00 a. m. until the day before school resumes, on odd-numbered years from Thanksgiving morning at 10:00 a.m. until the day before school resumes. b. On even-numbered years, from Christmas Eve at 4:00 p.m. until the day before school resumes, and on odd-numbered years, from December 26`x' rl ? I / P3 at 10:00 a.m. until the day bclore school resumes. c. If the children have a school break which lasts four or more days, including weekends, father shall have custody from end of the school day preceding the break until the evening before school resumes, d. The parties shall cooperate to ensure that the children have some contact with the other parent on the children's birthdays. 9. The parties shall share-transportation of the children such that they shallmake arrangements to meet at the Sheetz store on U. S. 15 in Lewisburg, Pennsylvania, unless they have agreed for the receiving party to pick up the children from the other party's home. 10. The parties shall ensure that regular telephone contact is permitted between the children and the non-custodial parent. 11. The parties shall do nothing, nor shall they permit third parties, to estrange or alienate the children from the natural love and affection for the other party. BY THE COURT, Nathan Wolf, Esquire For the Plaintiff Douglas Miller, Esquire For the Defendant 9A / 3+_ P BRYAN T. DUNN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 08-2929 CIVIL KELLY J. DUNN, Defendant IN CUSTODY IN RE: PETITION FOR CONTEMPT ORDER AND NOW, this 31 day of March, 2009, action on the pending contempt petition is DEFERRED on condition and with the direction to the mother that she continue her efforts to encourage Christopher to visit with his father and that she keep in place disciplinary measures to enforce visitation. The court is satisfied that the intervention of a professional is required in this case and the court is prepared to meet with counsel, upon the request of either, to discuss the selection of a counselor or psychologist to assist in repairing the relationship between father and son. Counsel should be prepared to discuss the extent to which insurance coverage may facilitate or limit the selection of an appropriate professional. BY THE COURT, Kevin . Hess, J. ZNathan Wolf, Esquire For the Plaintiff ? Douglas Miller, Esquire For the Defendant rlm Cof 1?r t ma( 6-X #Tj37-i "W" NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, V. KELLY J. DUNN, Plaintiff Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 2008 -2929 CIVIL TERM : IN CUSTODY CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, have served a true and correct copy of Plaintiffs' Petition for Contempt upon the following persons and in the matter indicated: SERVICE BY U.S. MAIL AND FAX: Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 submitted, Date: July A, 2009 Natha olf, Esquire 10 s igh Street C e, PA 17013 (717) 241-4436 Supreme Court ID # 87380 Attorney for Plaintiff ' TH- ek# 1?-71 BRYAN T. DUNN, Plaintiff/Petitioner, V. KELLY J. DUNN, Defendant/Respondent. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : 2008 - 2929 CIVIL TERM IN CUSTODY DEFENDANT'S REPLY TO PLAINTIFF'S PETITION FOR SPECIAL RELIEF and MOTION TO STRIKE PLAINTIFF'S PETITION AND NOW this 22ND day of July, 2009, comes the Defendant, KELLY J. DUNN, by and through her attorneys, Irwin & McKnight, P.C., and respectfully files this response to the Plaintiffs Petition for Special Relief by requesting that this Court strike the Petition and grant Defendant the additional relief requested herein, and in support thereof avers as follows: 1. Plaintiff filed the instant Petition for Special Relief on July 16, 2009, and therein is essentially requesting, in yet another form, that either Defendant be forced to undo her recent relocation or that Plaintiff be awarded primary custody of the parties' minor son. 2. However, as Plaintiff admits in his recent Petition for Special Relief, his appeal of this Court's Order dated November 21, 2008, is still on appeal to the Superior Court and awaiting the scheduling of oral argument as requested by Plaintiff and his legal counsel. 3. Accordingly, Pennsylvania Rule of Appellate Procedure 1701 must be reviewed to determine whether this Court retains jurisdiction to grant the relief requested by Plaintiff while his own appeal to the Superior Court is pending. 4. "It is well established that `once a party takes an appeal to an appellate court the trial court is divested of jurisdiction over the subject matter until further order of the appellate court reinstating jurisdiction."' Jones v. Troiak, 402 Pa. Super. 61, 71, 586 A.2d 397, 402 (1990), citin Ingram v. Dovertown Estates, Inc., 307 Pa. Super. 22, 26, 452 A.2d 884, 886 (1982), and Pa.R.A.P. 1701(a). 5. Pa.R.A.P. 1701(b) provides those circumstances under which the trial court may take action while a matter is on appeal. 6. In particular, Pa.R.A.P. 1701(b) is further broken down into six (6) distinct matters over which the trial court retains jurisdiction. 7. It is respectfully submitted that none of the matters provided for in Pa.R.A.P. 1701(b) are present in the this matter; namely, the Plaintiff does not seek to preserve the status quo, to enforce provisions of the current Order, to obtain relief following a timely grant of reconsideration, to take depositions, to take action authorized by the appellate court, or to proceed in a matter which was not appealed. 8. Plaintiff's requested relief is therefore in contrast to the Petition for Contempt he previously filed for which this Court retains authority under Pa.R.A.P.1701(b)(2). 9. Plaintiff's legal counsel was informed of the above law and facts prior to the filing of the instant Petition for Special Relief. 10. The above cited law and facts were precisely the reason why the undersigned legal counsel did not consent to the request to hold yet another conference with the Trial Court. 2 11. The Plaintiff's persistence in again seeking relief from an Order from which he already has a pending appeal to the Superior Court is arbitrary, capricious, vexatious, and without good cause. 12. Furthermore, Defendant has recently obtained information indicating that the parties' minor son was removed from the Commonwealth of Pennsylvania and left with non- relative friends in Kentucky. 13. Plaintiff did not seek prior approval from Defendant to take their son out of Pennsylvania, and Plaintiff refuses to acknowledge that he does not currently have physical custody of the parties' minor son. 14. The Plaintiffs actions in transporting to and leaving the parties' minor son in Kentucky without the knowledge and consent of the Defendant is also arbitrary, capricious, vexatious, and without good cause. 15. As a direct and proximate result of the actions of the Plaintiff, Defendant has suffered detriment and injury and will continue to incur expenses and attorney fees to re-litigate this matter while it is still on appeal. 16. In addition to the striking off of the Plaintiffs instant Petition for Special Relief, Defendant therefore also seeks an award of reasonable attorney fees in the amount of $750.00 against Plaintiff. 17. The Honorable Kevin A. Hess has been the Judge assigned to this matter. 3 18. As the undersigned already advised Plaintiffs counsel that there was not agreement in seeking yet another judicial conference or in the filing of his Petition for Special Relief, it was not necessary to seek opposing counsel's concurrence or non-concurrence. WHEREFORE, Defendant, KELLY J. DUNN, respectfully requests that this Honorable Court strike the Plaintiff's Petition for Special Relief for lack of jurisdiction, deny the relief requested by Plaintiff therein, and award Defendant reasonable attorney fees in the amount of $750.00 against Plaintiff, together with such other and further relief and this Court shall deem reasonable and appropriate. Respectfully Submitted, IRWIN & McKNIGHT, P.C. By: Douglas . Miller, squire Supreme urt ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Dated: July 22, 2009 Attorney for Defendant 4 VERIFICATION The foregoing document on behalf of the Defendant is based upon information which has been gathered by counsel for the Defendant in the preparation of this document. The statements made in this document are true and correct to the best of the counsel's knowledge, information and belief. The Defendant's verification cannot be obtained within the time allowed for filing the pleading. The undersigned is therefore verifying on behalf of the Defendant according to 42 Pa.C.S.A. § 1024(c)(2). The undersigned understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. ?)?- J? %A er, Esquire ougla 6 C l- Date: July 22, 2009 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by hand delivery and by facsimile, on the date set forth below: Nathan C. Wolf, Esquire Wolf & Wolf 10 West High Street Carlisle, PA 17013 Attorney for Plaintiff Date: July 22, 2009 IRWIN & McKNIGHT, P.C. AC r Douglas . Miller, Es uire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant CF THE 2CC9 JUL 22 i i ! : 18 m . ?i??r BRYAN T. DUNN, Plaintiff/Petitioner, V. KELLY J. DUNN, Defendant/Respondent. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : 2008 - 2929 CIVIL TERM : IN CUSTODY ORDER OF COURT AND NOW, this Z9 - day of July, 2009, upon consideration of Defendant's reply to the Plaintiffs Petition for Special Relief and Motion to Strike Plaintiffs Petition, it is hereby ORDERED that the Plaintiffs Petition for Special Relief is stricken for lack of jurisdiction, and fees in of $75Q AQavoainet ta? . BY THE COURT, A. HESS, J. ? Nathan C. Wolf, Esquire For the Plaintiff/Petitioner ? Douglas G. Miller, Esquire For the Defendant/Respondent Copis m5i? I 7a4/? f7 ;F 2099 JUL 29 AH 1 E : ii 2 BRYAN T. DUNN, Plaintiff/Respondent, V. KELLY J. DUNN, Defendant/Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : 2008 - 2929 CIVIL TERM IN CUSTODY EMERGENCY PETITION FOR CONTEMPT AND NOW, this 21St day of August, 2009, comes the Defendant/Petitioner, KELLY J. DUNN, by and through her attorneys, Irwin & McKnight, P.C., and presents the following Petition for Contempt, averring as follows: 1. The Petitioner is Kelly J. Dunn, an adult individual currently residing at 30 Trout Brook Road, Roulette, Pennsylvania 16746. 2. The Respondent is Bryan T. Dunn, an adult individual now residing at 1874 Douglas Drive, Carlisle, Cumberland County, Pennsylvania 17013. 3. The parties are the natural parents of two (2) minor children: Christopher B. Dunn (Date of birth, April 26, 1995, currently age 14), and Katharine E. Dunn (Date of birth October 15, 1999, currently age 9). 4. Following several days of hearings before this Court regarding Father's request for primary physical custody of the parties' children, an Order of Court dated November 21, 2008, was entered in this matter establishing primary physical custody of the children with the Mother and partial physical custody of the children with the Father. A true and correct copy of said Order signed by the Honorable Kevin A. Hess is attached hereto and incorporated herein by reference as Exhibit "A." 2 5. Father initially filed an appeal from the Order attached as Exhibit "A," then filed a Petition for Contempt, then filed a Petition for Special Relief, and ultimately on July 31, 2009, filed to withdraw his appeal to the Superior Court. 6. Pursuant to the Order attached as Exhibit "A," after spending the beginning part of the summer with Father, the children were to be returned to Mother on the first Saturday in August. 7. The first Saturday in August of this year fell on August 1, 2009. 8. Prior to that date, Father contacted Mother and directed her to meet him at a park in or near Potter County without providing additional details or instructions. 9. At that time, Father dropped of the parties' daughter with what appeared to be all of her belongings. 10. Father refused to provide Mother an answer as to his plans or intentions with regard to the parties' daughter, and instead simply transferred all of her belongings to Mother's vehicle. 11. At that time, Father did respond to Mother's questions regarding the absence of their son, Christopher, by stating that their son was on the way to Kentucky with "friends." 12. Father did not previously request permission from Mother or provide advance notice that Christopher was to be in the custody of unrelated third parties and transported across 3 state lines to Kentucky; nor, upon information and belief, would Father have ever told Mother as to their son's location without her persistence in requesting an answer. 13. Father also did not provide an exact location, contact person, or method for Mother to directly reach her son. 14. Following the delivery of the parties' minor daughter, Father and his legal counsel began multiple attempts to avoid returning Christopher on August 1St in accordance with the Order of Court attached as Exhibit "A." 15. This included the filing of a Petition for Special Relief for son to remain in Cumberland County, and the ultimate withdrawal of Father's appeal to the Superior Court. 16. During a telephone conference between legal counsel and this Court, it was specifically mentioned that any hearing held on Father's request for son to remain in Cumberland County would occur after the August l St custody exchange in order to allow Mother to have time with her son and avoid any claims of undue influence. 17. In addition, by written message to legal counsel for the parties, this Court directed that the current Order and established custody schedule to be followed regardless. 18. Despite these repeated reminders, Father has repeatedly failed and refused to return and deliver the parties' son to Mother. 4 19. On Saturday, August 1, 2009, both parties were present at the Sheetz convenience store in Lewisburg on U.S. 15, pursuant to Paragraph 9 of the Order attached as Exhibit "A." 20. Father, his paramour, and the parties' son were waiting in a vehicle at the Sheetz when Mother, her older son from a prior marriage, and friends arrived. 21. At no time during the attempted exchange did Father, Christopher, or Father's paramour leave their vehicle. 22. Father made no visible effort to open the car door for his son or transfer any belongings to Mother's vehicle. 23. Father and his paramour would only lower the windows of their vehicle several inches, actions that effectively prevented Mother from having a reasonable conversation with her son given the level of traffic and noise at the Sheetz convenience store. 24. Father and his paramour also persistently held phones or other similar recording devices out of the slightly open windows of their vehicle in an attempt to record, harass, and/or annoy Mother. 25. Mother did not observe Christopher to have any of his belongings with him in the vehicle, and upon information and belief neither Father nor their son had any intention of completing the ordered custody exchange. 5 26. Upon information and belief, Father advised Christopher that he could remain in Cumberland County, continue to attend school in Carlisle, and did not need to bring his belongings and was not required to exit Father's vehicle if he did not so desire. 27. After several minutes, Father then directed his paramour to drive from the parking lot without ever having exited the vehicle or strongly encouraging his son to do the same. 28. Upon information and belief, the Sheetz convenience store has video cameras recording activity in its parking lot, which cameras were operational on August 1, 2009. 29. Upon further information and belief, Sheetz maintains said recordings for at least thirty (30) days, but will only turn them over in response to a valid subpoena. 30. Upon information and belief, Father has also taken steps to re-enroll Christopher in the Carlisle School District in opposition to the current Order of Court. 31. Since the attempted exchange, Father has also limited contact between Christopher and Mother by such actions as intercepting Mother's calls, and failing to return Mother's messages. 32. Father's legal counsel has undertaken no additional efforts to seek to modify or amend the existing Order of Court. 33. Father's actions in allowing the parties' minor son to go to and stay in Kentucky without the knowledge and consent of Mother are arbitrary, capricious, vexatious, and without good cause. 6 34. Father's actions in refusing to ensure an exchange of custody in accordance with the existing Order of Court on August 1St are arbitrary, capricious, vexatious, and without good cause. 35. If shown to be true, Father's actions in allowing the parties' minor son to re-enroll in the Carlisle Area School District are arbitrary, capricious, vexatious, and without good cause. 36. Father's actions preventing or at least not encouraging contact between Mother and her minor son are arbitrary, capricious, vexatious, and without good cause. 37. Father's failure to seek modification of the existing Order of Court, and continued efforts to keep Christopher in Cumberland County in violation of that Order, are arbitrary, capricious, vexatious, and without good cause. 38. As a direct and proximate result of the actions of Father, Defendant Mother has suffered detriment and injury and will continue to incur expenses and attorney fees to enforce the terms of the existing Order of Court. 39. Mother therefore seeks, in addition to a finding of Father's contempt, an award of reasonable attorney fees, which fees have become significant in light of Father's continued violations of this Court's prior Order in this custody matter. 40. Mother also requests that until a hearing is scheduled in this matter, that Father be required to ensure that Christopher is enrolled and transported to school in Potter County. 7 41. The Honorable Kevin A. Hess has been the Judge assigned to this matter. 42. As the undersigned already advised Plaintiff s counsel that this Petition would be filed if Father did not ensure that the minor son was returned to Mother, and having not received any additional contact or correspondence from Plaintiffs counsel, it was not necessary to seek opposing counsel's concurrence or non-concurrence. WHEREFORE, Defendant, KELLY J. DUNN, respectfully requests that this Honorable Court enter an Order of Court granting her Emergency Petition for Contempt, directing Plaintiff to ensure that the parties' minor son attends school in Potter County, Pennsylvania pending further direction, awarding Defendant reasonable attorney fees, and to further enter an Order of Court authorizing the attached subpoena to be filed and served in accordance with Pennsylvania Rule of Civil Procedure 1930.5, together with such other and further relief and this Court shall deem reasonable and appropriate. Respectfully submitted, IRWIN & McKNIGHT, P.C. Dated: August 21, 2009 By: Douglas . Miller, Esquire Supreme ?ourt I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant Kelly J. Dunn 8 VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. KELLY jAiKNN Date: 8/18/04 is BRYAN T. DUNN, IN THE COURT OF COMMON PLEAS OF Plaintiff. ; CUMBERLAND COUNTY, PENNSYLVANIA vs. ; CIVIL ACTION' LAW NO. 08-2929 CIVIL KELLY J. DUNN, Defendant IN CUSTODY ORDER AND NOW, this 2 i day of November, 2008, after hearing and upon consideration of the evidence presented and the legal arguments of counsel for the parties, we enter the following-order:....__ _...._:._ _.... ...__.. _. _.. _ _....__. __ _____ __ _ 1. The parties shall have shared legal custody of their two minor children, namely, Christopher Bryan Dunn, age thirteen years, and (Catharine Elizabeth Dunn, age nine years. 2. The mother shall have primary physical custody of the children, and is granted permission to relocate to Potter County, Pennsylvania, but may not do.so until the end of the 2008-2009 school year. 3. Prior to relocation, father shall have partial physical custody of Katharine as follows: a. On alternating weekends from Friday evening at 5:00 p.m. until Sunday evening at 5:00 p.m. to coincide with father's work schedule, b. One evening every other week from 4:00 p.m, until 8:00 p.m., which evening shall coordinate with father's work schedule, and shall be alternated with his evening with Christopher. Exhibit "A" 4. Prior to relocation, father shall have partial physical custody of Christopher as follows. a. Until January 2009, every other week for one evening from 4:00 p.m. until 8:00 p.m., which evening shall coordinate with father's work schedule, and shall be alternated with his evening with Katharine. b. After January 2009, on alternating weekends from Friday evening at.5:00 p.m. until Sunday evening at 5:00 p.m. to coincide with father's work schedule-and-his -weekend -custody -ofKathai-ine. c. Unless provided in the holiday and summer schedule herein, at such other times as the parties may agree. 5. Prior to relocation, the parties shall alternate the major holidays as follows: a. Father shall have custody of the children for the Thanksgiving holiday and Christmas Eve day until 6:00 p.m. in even years, and mother shall have the same in odd years. b. Mother shall have custody of the children on the day after Thanksgiving and from Christmas Eve at 6:00 p.m. through Christmas Day in even years and father shall have the same in odd years. c. Father and mother shall alternate the Easter holiday with mother having custody of the children in odd years. d. Fattier and mother shall alternate the Memorial Day, Labor Day and Independence Day holidays to coincide with father's work schedule, however, no party shall have more than two of these holidays in one year. e. Father shall always have custody of the children on Father's Day from 9:00 a.m. until 5:00 p.m. and mother shalt have the same period of time on Mother's Day. f. The parties shall cooperate to ensure that the children have some contact with the other parent on the children's birthdays. 6. -The -parties.shaU.sharetranspnrtatiariof..the -children -such -that Abe-receiving -par i the party picking the children up, shall be responsible for transportation to the other panty's home, except that father shall be responsible for picking up and dropping the children off for his evening visits. 7. Following relocation of the mother and children to Potter County, Pennsylvania, father shall have custody of the children during the summer vacations from the first Saturday after school recesses until the first Saturday in August. 8. Following relocation the parties shall have custody on holidays as follows: a. In even-numbered years, from the day after Thanksgiving at 10:00 a.m. until the day before school resumes, on odd-numbered years from Thanksgiving morning at 10:00 a.m. until the day before school resumes. b. On even-numbered years, from Christmas Eve at 4:00 p.m. until the day before school resumes, and on odd-numbered years, from December 26`1' at 10:00 a.m. until the day be Core school resumes, c. If the children have a school break which lasts four or more days, including weekends, father shall have custody from end of the school day preceding the break until the evening before school resumes. d. The parties shall cooperate to ensure that the children have some contact with the other parent on the children's birthdays. 9. The-parties -shall share -transpor-tation-ofthe..children such- that -they-shall-make -•-- arrangements to meet at the Sheetz store on U. S. 15 in Lewisburg, Pennsylvania, unless they have agreed for the receiving party to pick up the children from the other party's home. 10. The parties shall ensure that regular telephone contact is permitted between the children and the non-custodial parent. 11. The parties shall do nothing, nor shall they permit third parties, to estrange or alienate the children from the natural love and affection for the other party. BY THE COURT, Nathan Wolf, Esquire For the Plaintiff Douglas Miller, Esquire For the Defendant, w' ts:; :,'; s=; f }^? , bt , :. :•: ti i , _ Ia Pei( ?r BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW :2008-2929 CIVIL TERM KELLY J. DUNN, Defendant : IN CUSTODY SUBPOENA NOTICE TO PRODUCE TO: Sheetz, Inc., Attn: Legal Department, 5700 Sixth Avenue Altoona PA 16602 I. You are directed to produce the following: all exterior video and/or visual recordings existing between the hours of 9:00 a.m. and 11:00 a..m. on August 1, 2009, at the convenience store located in Lewisburg PA and having an address of 260 International Drive Lewisburg, PA 17837, specifically including those videos and/or visual recordings of the parking areas at the designated store location at Courtroom No. 4 of the Cumberland County Courthouse, Carlisle, Cumberland County, Pennsylvania, on , 2009 at o'clock, A.M. 2. If you fail to produce the documents or things required by this Subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. Issued by the Court in Compliance w/ Pa.R.C.P 1930.5(a) Name: Douglas G. Miller. Esauire Address: 60 West Pomfret Street Carlisle. PA 17103 Telephone: (717) 249-2353 Supreme Court ID # 83776 Date: Seal of the Court BY THE COURT: Prothonotary Deputy EXHIBIT "B" CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below both by facsimile, by hand delivery, and by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Nathan C. Wolf, Esquire Wolf & Wolf 10 West High Street Carlisle, PA 17013 Date: August 21, 2009 IRWIN & McKNIGHT, P.C. 744V'?-.Azon Douglas G filler, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant OF THIP 2 0 0 9 AU 24 A,M 8: f 1 ? .. for '?,k -*'10.00 ee` to f8o ?"?a4c?a9 NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW KELLY J. DUNN, : NO. 2008 -2929 CIVIL TERM Defendant : IN CUSTODY PETITION FOR MODIFICATION NOW COMES the plaintiff, Bryan T. Dunn, by and through his counsel, Nathan C. Wolf, Esquire, and presents the following petition for modification of custody and in support thereof represents as follows: 1. The petitioner is Bryan T. Dunn, an adult individual residing at 1874 Douglas Drive, Carlisle, Cumberland County, Pennsylvania 17013. 2. The respondent is Kelly J. Dunn, an adult individual formerly residing at 30 Troutbrook Road, Roulette, Potter County, Pennsylvania 167463. 3. The parties are the natural parents of two (2) minor children born of their marriage, namely: Christopher Bryan Dunn, born April 26, 1995, and Katharine Elizabeth Dunn, born October 18, 1999. 4. The parties are subject to a custody Order issued by this Court dated November 21, 2008. A true and correct copy of this Order is attached hereto as Exhibit A. 5. On or about July 16, 2009, Father filed a Petition for Special Relief requesting primary physical custody of Christopher averring, inter alia, that a. At the time this Order was entered, the relationship between Father and son was strained. b. Petitioner believes that the original Custody Order was entered in substantial reliance from in camera testimony of the son, which testimony reflected the strained nature of the relationship between Father and Son at that time. c. Between the entry of the original Custody order and February 2009, visitation between Father and son was not been in substantial compliance with this Order, and Father had extremely limited contact with the child. d. The obstructed visitation between Father and son has been the subject of a Petition for Contempt filed in February 2009, on which this Court deferred ruling. A true and correct copy of the Court's Order of March 31, 2009, allowing for a conference in chambers with counsel to discuss the involvement of a professional to assist in repairing the relationship between Father and son, is attached hereto as Exhibit B. e. The Order of March 31, 2009 represents the most recent involvement of the Court in this case. f. Since the entrance of the Order, the relationship between Father and son has substantially improved and developed, despite the fact that the visitation set forth in this Order was substantially frustrated between August 2008 and April 2009. g. Prior to the end of the school year, the parties' son began visiting with Father, including spending overnights as set forth in the Order. h. Pursuant to paragraph 2 of the Custody Order, Mother has primary physical custody of the children and was granted permission to relocate to Potter County, Pennsylvania at the end of the 2008-2009 school year. i. Mother has relocated to Potter County and is residing with her parents in Roulette, Pennsylvania. j. Since June 16, 2009, Father has had custody of the child. k. Prior to Jame 16, 2009, the child contacted the undersigned and requested to speak with counsel for Plaintiff concerning the custody situation. 1. In or about early June, 2009, prior to the end of the school year, the child met with the undersigned outside of the presence of Father. m. At that time, the child disclosed to the undersigned that he strongly wished to remain in Carlisle and not to relocate to Potter County with his mother. n. The child voiced multiple reasons for wishing to remain in Carlisle, including many educational, extra-curricular and social opportunities which are not available to him in Potter County. o. The child also expressed a strong desire to communicate with the Honorable Kevin A. Hess to have the opportunity to voice this position in hopes that the Court may modify the custody Order and permit him to remain in Carlisle in the custody of his Father. p. The child also requested that this request be delayed until after June 16, 2009, when Mother was scheduled to return to Potter County, out of fear of repercussions which he believed he would suffer as a result of requesting to remain in the custody of Father. q. Father is scheduled to have custody of the child until August 1, 2009. r. The child has done well in Father's home and in developing his relationship with Father and it is respectfully submitted that the Court's prior Order was entered in reliance upon the strains in the relationship between Father and son which they have substantially resolved. s. The child is now fourteen (14) years old, is very intelligent and mature for his age, and is able to clearly articulate the rationale behind his request to remain in Carlisle. t. The undersigned respectfully submits that attempts were made to submit this request to for the Court's consideration but such efforts were impossible due to the Court's unavailability in the preceding two weeks. u. Petitioner submits that despite any expected suggestion to the contrary, the child has reached this conclusion on his own and not as a result of pressure or attempts to persuade the child to come to this conclusion. v. Nevertheless, Petitioner believes and therefore avers that the relief requested, namely offering the child the opportunity to communicate with the Court, and the consideration of that testimony in reaching a conclusion that the child can remain in Carlisle is certainly in the child's best interests. w. Petitioner respectfully requests the opportunity for this Court to consider in camera testimony to this effect, from Son, before this relocation occurs and in order to prevent the child from missing the opportunity to be enrolled in the 2009-2010 school year in the Carlisle School District and to participate in his activities. 6. On or about July 22, 2009, Mother filed a motion to strike the petition for special relief on the basis that the trial court did not have jurisdiction to grant special relief due to the pendency of the appeal of the November 21, 2008 Order which Father had filed in the Superior Court and sought counsel fees in the amount of $750.00. 7. Father believed that the Court had jurisdiction to hear the special relief petition and, at least, that the Court was authorized to place the special relief petition aside pending the outcome of the appeal, but the Court granted the motion to strike, denying Mother's claim for counsel fees on July 29, 2009 The court had communicated with counsel via email on July 29, 2009 indicated that the Order had been signed as aforesaid, and instructing counsel that it was the Court's position that the summer custody schedule should be followed, meaning that the child should return to his mother's custody on August 1, 2009. 9. The Court also suggested that the child should attempt to communicate his feelings to his mother so that the matter may be settled within the family. 10. Following such suggestion, on or about July 30, 2009, the child attempted to contact his mother to discuss his feelings with her. Once the child had stated that "the judge said I should tell you...", Mother cut the child off and told Christopher that he had not spoken to the judge and that everything had already been decided and that Christopher had no choice in the matter. At that point, the telephone call was ended by the child, who was overwhelmingly frustrated with Mother. 11. On or about July 31, 2009, Father filed a praecipe to withdraw his appeal with Superior Court so that the Court would be permitted to act upon his petition for special relief and intended to file a petition to modify custody so that the Court might be able to review the substantial change in circumstances since November 21, 2008. 12. Father is now seeking a change of primary physical custody to permit the child to remain in Carlisle during the school year and to have expanded periods of visitation with Mother during the summer months. 13. Father is attempting to re-enroll the child in the Carlisle School District pending the outcome of the instant petition and any other pending matters filed with this Honorable Court so that the child's school progress does not suffer. 14. Father believes that the child will substantially benefit from living in Father's home and that by living in the Carlisle area will benefit from the many opportunities available to the child in this area which do not exist in Roulette Pennsylvania. 15. Father believes and therefore avers that the best interests and permanent welfare of the child will be served by the entry of an Order granting primary physical custody of the child to him subject to periods of partial physical custody with Mother. 16. Father maintains a stable household and environment within which to raise the child. 17. In the event Father is willing to address the concerns raised herein, Mother is willing and ready to ensure that Father would, at that point, have regular contact and a strong relationship with Christopher, if relief is granted. 18. The prior judge assigned to this matter is the Honorable Kevin A. Hess. WHEREFORE, for the reasons set forth herein, plaintiff, Bryan T. Dunn, respectfully requests that the Court enter an order modifying the existing custody order and grant shared legal custody to the parties and primary physical custody of Christopher to the plaintiff, subject defendant's right to partial physical custody, along with any additional relief that the Court may deem appropriate and just. Respectfully submitted, WOLF & WOJP.F, Attorneys at Law Date: August, 2009 sy: ? Nathan , Esquire 10 We igh Street Car re. PA 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Plaintiff VERIFICATION I do hereby verify that I am the plaintiff in the foregoing action and that the facts set forth in this petition are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unworn falsification to authorities. August--2±--,2009 i&` , rl-? Bryan T. Dunn BI:YAN T. DUNN. IN THE COURT OF COMMON PLEAS Of Plaintiff CUMBERLAND COUNTY. PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 08-2929 CIVIL KELLY J. DUNN, Defendant IN CUSTODY ORDER AND NOW, this 2 day of November, 2008, after hearing and upon consideration of the evidence presented and the legal arguments of counsel for the parties, we enter the following order: 1. The parties shall have shared legal custody of their two minor children, namely, Christopher Bryan Dunn, age thirteen years, and Katharine Elizabeth Dunn, age nine years. 2. The mother shall have primary physical custody of the children, and is granted permission to relocate to Potter County, Pennsylvania, but may not do so until the end of the 2008-2009 school year. 3. Prior to relocation, father shall have partial physical custody of Katharine as follows: a. On alternating weekends from Friday evening at 5:00 p.m. until Sunday evening at 5:00 p.m. to coincide with father's work schedule. b. One evening every other week from 4:0013.M. until 8:00 p.m., which evening shall coordinate with father's work schedule. and shall be alternated with his evening with Christopher. 4. Prior to relocation, father shall have partial physical custody oIChristopher as follows: a. Until January 2009, every other week for one evening from 4:00 p.m. until 8:00 p.m., which evening shall coordinate with fathers work schedule, and shall be alternated with his evening with Katharine. b. After January 2009, on alternating weekends from Friday evening at 5:00 p.m. until Sunday evening at 5:00 p.m. to coincide with father's work schedule and his weekend custody of Katharine. c. Unless provided in the holiday and summer schedule herein, at such other times as the parties may agree. 5. Prior to relocation, the parties shall alternate the major holidays as follows: a. Father shall have custody of the children for the Thanksgiving holiday and Christmas Eve day until 6:00 p.m, in even years, and mother shall have the same in odd years. b. Mother shall have custody of the children on the day after Thanksgiving and from Christmas Eve at 6:00 p.m. through Christmas Day in even years and father shall have the same in odd years. c. Father and mother shall alternate the Easter holiday with mother having custody of the children in odd years. d. Father and mother shall alternate the Memorial Day, Labor Day and Independence Day holidays to coincide with father's work schedule, however, no party shall have more than two of these holidays in one Near. e. Father shall always have custody of the children on Father's Day from 9:00 a.m. until 5:00 p.m, and mother shall have the same period of time on Mother's Day. f. The parties shall cooperate to ensure that the children have some contact with the other parent on the children's birthdays. 6. The parties shall share _transpor_tation_of the children such that the receiving party,.i.e., the party picking the children up, shall be responsible for transportation to the other party's home, except that father shall be responsible for picking up and dropping the children off for his evening visits. 7. Following relocation of the mother and children to Potter Count},,, Pennsylvania, father shall have custody of the children during the summer- vacations from the first Saturday after school recesses until the first Saturday in August. 8. Following relocation the parties shall have custody on holidays as follows: a. In even-numbered years, from the day after Thanksgiving at 10:00 a.m. until the day before school resumes, on odd-numbered years from Thanksgiving morning at 10:00 a.m. until the day before school resumes. b. On even-numbered years, from Christmas Eve at 4:00 p.m. until the day before school resumes, and on odd-numbered years, from December 26`x' at 10:00 a.m. until the day bc:forc school resunnws, c, If the children have a school breal: which lasts four or more days, including weekends, father shall have custody from end of the school day preceding the break until the evening before school resumes. d. The parties shall cooperate to ensure that the children have some contact with the other parent on the children's birthdays. 9. The partiesshall share .transportation -of-the children such that they shall make arrangements to meet at the Sheetz store on U. S. 1 in Lewisburg, Pennsylvania, unless they have agreed for the receiving party to pick up the children from the other party's home. 10. The parties shall ensure that regular telephone contact is permitted between the children and the non-custodial parent. 11. The parties shall do nothing, nor shall they permit third parties, to estrange or alienate the children from the natural love and affection for the other party. BY THE COURT, Nathan Wolf, Esquire For the Plaintiff Douglas Miller, Esquire For the Defendant cw ?. NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW KELLY J. DUNN, : NO. 2008 -2929 CIVIL TERM Defendant : IN CUSTODY CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, attorney for Plaintiff, do hereby certify that this date, I have served a copy of the foregoing Petition for ModiFcation by the means identified below and addressed as follows: SERVICE BY U.S. MAIL: Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 (Counsel of Record for Defendant) Date: August -, 2009 Respectfully submitted, WOLF & WOLF N ,Wan C off, Esquire 1.6 West igh Street &disfc, PA 17013 (717) 241-4436 Supreme Court I.D. No. 87380 Attorney for Plaintiff n? ? . r- -? r ? h ?!V f 2009 A"u"G 2`4 pf"i I;, co liW ?rYt, ???-\.+ v NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW KELLY J. DUNN, : NO. 2008 -2929 CIVIL TERM Defendant : IN CUSTODY REPLY TO EMERGENCY PETITION FOR CONTEMPT AND NOW COMES the respondent/plaintiff, Bryan T. Dunn, by and through his counsel, Nathan C. Wolf, Esquire, and presents the following reply to Mother's Emergency Petition for Contempt filed August 21, 2009, and in support thereof represents as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied as stated. It is denied that Father simply contacted Mother and directed her to meet him at a park in or near Potter County without providing additional details or instructions. Rather, Father contact Mother and asked if she would like to see Katharine and asked Mother where she would like to meet to exchange custody. Furthermore, Father told Mother that the visit would be for one week so that the child could be relieved of some of her homesickness caused by being separated from her mother for the longest time in her life. Father had travelled to the Potter County area to see family and extended the offer of time with Katharine to Mother as a courtesy. 9. Denied as stated. It is admitted that Father dropped off the child with many of her belongings as Father was already under Court Order to return the child to Mother's custody on August 1, 2009, and Father took the opportunity to return many of the child's belongings so that he was not overwhelmed with belongings from both children on the August 1, 2009 custody exchange date. It is further averred that Father still has some of the parties' daughter's belongings in his house in Carlisle, which he expected her to need during the remaining period of custody over the summer. 10. Denied. Father spoke with Mother before the exchange took place and established that the parties would speak within a few days after the exchange and work out the specific details of the return of the child to Father. 11. Admitted. 12. Admitted in part, denied in part. It is admitted that Father did not request permission from Mother before the child travelled to Kentucky to spend time with close friends. It is denied that Father would have withheld the information from Mother without having been asked. By way of further response, no prior order issued in this case requires the consent of the opposing party before the child is permitted to spend vacation time with any third parry, or to be transported across state lines, and Father is aware of no authority which requires such permission, except as if might impact Mother's periods of custody which did not occur in this instance. 13. Admitted in part, denied in part. Father did not provide such information, but Mother made no request for such information and did not indicate a desire to contact Christopher or such information would certainly have been provided. 14. Denied as stated. It is specifically denied that Father or the undersigned began multiple attempts to avoid returning Christopher on August 1s`, except as would have been authorized by law. By way of further response, the undersigned did undertake to have the Court interview the child and evaluate what was plead in Father's petition for special relief as a substantial change in circumstances, however, the undersigned counsel advised Father and the child directly that the Court's Order of November 21, 2008 should be followed. The undersigned takes specific objection at the suggestion that his behavior was, in any way, subversive of this Honorable Court's directives. 15. Admitted in part and denied in part. It is admitted that the undersigned advised Father and prepared the petition for special relief, and subsequently advised Father and then filed the petition to withdraw the appeal. However, Mother's counsel raised the objection to jurisdiction, which was sustained and thus required the withdrawal of the appeal in order to effectuate a timely resolution of the more recent custody developments. 16. Denied as stated. The Court did direct counsel and the parties to follow the established custody order. However, it is specifically denied that such directive was ever made in the context of avoiding any claims of undue influence. By way of further response, despite the fact that Mother has raised a claim of undue influence in the context of the child's change of heart as it related to being in his Father's custody, the child had reached this position while in Mother's care and communicated the same to the undersigned on May 27, 2009, while requesting that the undersigned delay communicating his position to the Court until after his mother had returned to Potter County so that he would be subjected to Mother's retaliatory behaviors for his perceived disloyalty. 17. Admitted. 18. Denied as stated. Father has not physically forced the child to return to Mother's custody but has taken all appropriate steps to ensure that the child would return to Mother's custody and that the child had been sanctioned by having privileges taken away following his refusal to return to Mother's custody. 19. Admitted. 20. Admitted. 21. Admitted. 22. Admitted. 23. Denied as stated. Initially the windows in the car were only lowered so that communications could be made through the opening. However, after Mother's repeated protests, Father lowered the rear driver's side window its full extent and Mother and the child's half-brother Zachary leaned on the window ledge speaking with the child in the course of the attempted exchange. Father has video evidence which can be viewed by the Court in support of this position. 24. Denied as stated. Father used a video camera on his cellular phone, on the advice of counsel, to ensure that an accurate recording of the exchange between the parties and the child was kept. Father did so because he feared that the Court may not find his version of events credible if a violation of the PFA was alleged or in the event Mother pursued a petition for contempt. Father and his girlfriend disclosed the use of the cameras so as to avoid the escalation of the exchange and not to harass or annoy any person whatsoever. 25. Denied. Father packed Christopher's belongings and the majority of which were in the trunk of the vehicle which could not admittedly be viewed but the child had other belongings, including his computer with him in the backseat. Father repeatedly sought to have the child return to the custody of his mother, but Father refused to allow physical force to be used to accomplish compliance with the Order for fear of injury to the child or others involved. 26. Denied as stated. By way of further response, see response to paragraph 25. Father had encouraged the child to exit the vehicle and to travel with his Mother to Roulette per the Court's Order. 27. Denied as stated. After approximately twenty-four minutes had passed since Mother's arrival at the exchange point and it being apparent that the child was consistently refusing to go with Mother, Father directed his girlfriend to leave the parking lot before the confrontation escalated to the point of causing public inconvenience, nuisance, or any violent outburst erupted. 28. After reasonable investigation, Father is without sufficient information to admit or deny the contents of the averment of paragraph 28. 29. After reasonable investigation, Father is without sufficient information to admit or deny the contents of the averment of paragraph 29. 30. Admitted with clarification. Father has attempted to ensure that Christopher is still enrolled in the Carlisle School District after it became apparent that the child would continue to refuse to go to live with Mother and when he realized that physical force would be required to effectuate the custody exchange required by the Court Order. By way of further response, Father did not want to expose himself to criminal liability for failure to comply with the mandatory attendance provisions of the Pennsylvania School Code. Moreover, Mother had not "un-enrolled" the child from Carlisle School District until on or about approximately August 10, 2009. 31. Denied. Father has allowed the child unfettered access to the telephone to contact Mother and her household. When the child has used Father's girlfriend's cellular phone to try to contact Mother, Mother refuses to answer the child's telephone calls. Mother has not attempted to contact the child by telephone for the past several weeks. By way of further response, the child has spoken with his siblings and with his grandparents and attempts to speak with Mother but the nature of Mother's communications with the child have been such that the child terminates the conversations. In essence, Father has done nothing to interfere with Mother's ability to communicate with the child. 32. Denied. By way of further response, a petition for modification was filed contemporaneously with the instant reply, which had been substantially completed and prepared for filing prior to the receipt of the instant petition. 33. Denied as a conclusion of law to which no response is required. To the extent a response is required, Father was under no obligation to obtain permission from Mother before allowing the child to spend time in Kentucky and as such, Father's actions could not be considered to be arbitrary capricious vexatious or without good cause. 34. Denied. Father made substantial efforts to comply with this Court's Order as it related to the required exchange on August 1, 2009. By way of further response, Father did not want to risk injury to the child if the child was subjected to physical force in accomplishing the custody exchange. As such Father's actions can not be considered to be arbitrary capricious vexatious or without good cause. 35. Denied. Father's actions in ensuring that during the pendency of the resolution of the instant matters before the Court were designed solely to ensure that the child's academic progress was not jeopardized and so that Father would not be in violation of the Pennsylvania mandatory attendance policy which he would violate if he allowed the child not to attend school. As such Father's actions can not be considered to be arbitrary capricious vexatious or without good cause. 36. Denied. Father has used all reasonable efforts to ensure that the child remains in contact with Mother since the incident on August 1, 2009. The child has communicated with various members of Mother's household and has spoken with Mother repeatedly in the intervening time period. As such Father's actions can not be considered to be arbitrary capricious vexatious or without good cause. 37. Denied. Father has contemporaneously filed a Petition for Modification of the existing Order of Court which was substantially completed and prepared for filing prior to the receipt of the instant pleading. As such Father's actions can not be considered to be arbitrary capricious vexatious or without good cause. 38. Denied. It is specifically denied that Father's actions have cause Mother to suffer any detriment or injury and rather that her own actions have led to the child's announced preference to remain in Father's custody and his refusal to return to Mother's custody in Potter County. Father submits that his actions have been designed solely to protect the child's best interests. By way of further response, Father is without sufficient information as to ascertain the expenses and attorneys fees incurred by Mother. 39. Denied as a prayer for relief to which no response is appropriate. To the extent a response is required, Father submits that Mother's own actions have led to the child's announced preference to remain in Father's custody and his refusal to return to Mother's custody in Potter County. Father submits that his actions have been designed solely to protect the child's best interests. 40. Admitted 41. No response required. WHEREFORE, for the reasons set forth herein, plaintiff, Bryan T. Dunn, respectfully requests that the Court enter an order dismissing the petition for emergency contempt filed by Mother, and denying her claims for counsel fees and costs, along with any additional relief that the Court may deem appropriate and just. NEW MATTER 42. The previous paragraphs are incorporated by reference as if set forth fully herein. 43. At Father's request, the undersigned spoke with the child concerning the Court's email with counsel that the Court desired for the son to return to his Mother's custody and stressed the importance of complying with the Court's directives. 44. During the conference held with counsel following the March 2009 contempt hearing, on Father's petition for contempt, counsel for Mother agreed with the assertion that it was not possible to physically force the child to go with Father for his scheduled visits. 45. Father believes and therefore avers that such a position was reasonable and never attempted to physically force the child to come with him for a visit, particularly because he feared he would be accused of abusing the child. 46. Father was not comfortable with anyone physically attempting to force the child to go for visits and conceded that Mother could not force such exchanges to occur. 47. In support of that position, Father's counsel authored correspondence to Mother's attorney July 31, 2009, that all possible steps would be taken to ensure that the custody exchange occurred short of physically forcing the child to go with Mother. A true and correct copy of said correspondence and the fax confirmation reflecting a transmission time of 10:07 a.m. on July 31, 2009 is attached hereto as Exhibit A. 48. On August 1, 2009, Father travelled to the appointed exchange point in Lewisburg, Pennsylvania at the Sheetz on Route 15, bringing nearly all of the Christopher's belongings with him to deliver the child to Mother's custody as required by the Court's order. 49. Father was made aware by the undersigned that Mother's counsel had responded to the above-referenced correspondence by sending an email communications concerning the possible involvement of local or state police agencies in the area of the exchange point, the following excerpts are taken from an email from Mother's counsel to the undersigned dated July 31, 2009 and received at 5:31 p.m.: 3. If you seek to assert a finding of contempt on the part of my client with regard to Katie, I will be requesting an award of attorney fees on the basis that the pleading is arbitrary, capricious, vexatious, and/or without good cause. 3. (sic) If the appeal to the Superior Court is withdrawn at this late date, I will be requesting an award of attorney fees on the basis that the appeal was arbitrary, capricious, vexatious, and/or without good cause. 4. If Mr. Dunn does not return Chris tomorrow and ensure that he leaves the vehicle, I will also be filing for contempt. I have requested that Mrs. Dunn notify the State and local police there of the situation, and have copies of the Custody and PFA Orders available. Your client is under the legal obligation not to assist Chris in a violation of the custody order, nor provide him with a way to avoid compliance. Your statement that "no one is to attempt to physically force Christopher to go with Kelly" (while perhaps reasonable) is not an accurate statement of the law, and you should not assume that I believe it to be so. I have also discussed with my client additional steps she should take to ensure that Mr. Dunn is not able to assist Chris in violating the current Order. 5. If Chris is not returned and you attempt to seek modification of the current Order, I will be requesting an award of attorney fees on the basis that the pleading is arbitrary, capricious, vexatious, and/or without good cause. While I admittedly have fallen short many times during the course of my legal practice, I do try to treat opposing counsel in a manner in which I expect to be treated. However, your statement today that "we can save each of our clients a significant amount of money, time and energy if this case can be discussed without the need for further court intervention" is almost beyond response. Your client has been the aggressor in these legal proceedings in almost every instance. Evidently it is only when your client believes he is winning that he seeks to not engage in litigation. Perhaps the best way to summarize this last paragraph: "What's good for the gander, is good for the goose ......................." 50. Based upon the foregoing information, Father feared that the custody exchange would be used as an opportunity to accuse Father of violating the terms of the PFA or as an opportunity to provoke a physical response from Father if force was used against Christopher in the course of the custody exchange. 51. This belief was bolstered by the fact that the child was adamant about his refusal to go to Roulette to live with his Mother. 52. Nevertheless, Father sought the advice from counsel on how to handle the custody exchange, because Father and the undersigned were of the belief that Mother would bring other individuals to physically force Christopher out of Father's car and into Mother's car. 53. Due to risks involved in physically forcing the child at a custody exchange, Father believed that significant risks of harm or injury to the child or others would occur if he was physically forced to go with his mother. 54. The undersigned advised Father that because of the existence of the PFA and because of the volatility of the custody situation, Father would be advised to use the video camera on his cellular telephone to record the exchange, though he should advise Mother that said recording was being made. 55. Father followed the advice of the undersigned and attempted to substantially comply with the Court's Order of November 21, 2008 by taking the following steps: a. Father packed the majority of Christopher's belongings in the car. b. Father traveled to the appointed exchange location at the stated date and time and brought the child. c. Father encouraged the child repeatedly to go with his mother for over twenty minutes d. Father allowed Mother and the child's half-brother to communicate with the child through the car window in an effort to encourage the child to go with Mother. e. Father informed the child that there would be significant consequences if the child refused to go with his mother, including loss of privileges and activities. 56. Father did attempt to ensure that Christopher continued to be enrolled in the Carlisle School District when it became apparent that the child was consistently refusing to return to his mother's custody. 57. Father believes that the child's best interests are not served by granting the relief requested by Mother. 58. Father requests that the Court dismiss the petition for contempt and grant the petition for modification filed contemporaneously herewith providing for a change of custody of the parties' son. WHEREFORE, for the reasons set forth herein, plaintiff, Bryan T. Dunn, respectfully requests that the Court enter an order dismissing the petition for emergency contempt filed by Mother, and denying her claims for counsel fees and costs, along with any additional relief that the Court may deem appropriate and just. Respectfully submitted, WOLF & GOLF, Attorneys at Law Date: Augus?v2009 By: Wolf, Esquire 10 est High Street Carlisle, PA 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Plaintiff VERIFICATION I do hereby verify that I am the plaintiff in the foregoing action and that the facts set forth in this answer and new matter to the defendant's petition for emergency contempt are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. August,?4_, 2009 b ,L` ' - Bryan T. Dunn WOLF & WOLF ATTORNEYS AT LAw NATHAN C. WOLF 10 WEST HIGH STREET STAGY B. WOLF CARLISLE, PENNSYLVANL-1 17013 PHON , wolfandwolf a,embargmail.com FAcsrntir_i; 717-241-4436 717-241-4437 July 31, 2009 VIA FAX AND MAIL Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 Re: Dunn v. Dunn No. 2008-2929 Dear Doug: In light of judge Hess' recent communication to us concerning the petitions we each filed, I have filed a withdrawal of the Superior Court appeal of the November 21, 2008 decision. I intend to file an amended petition for special relief with the Court as soon as possible. My client was advised of judge Hess' instructions and directions concerning the remainder of the summer, including the pending transfer of custody of Chris to Kelly. On Wednesday, Chris attempted, as suggested by the Court, to contact his mother and tell her how he felt about moving to Roulette. As soon as Chris had exchanged pleasantries with his mother and mentioned the judge, your client told Chris that our motion had been denied and that the issue was over. When she shut Chris down on his attempt to talk to her, Chris hung up the telephone. Clearly this was not what the Court wanted to have happen. Chris has indicated that he absolutely does not want to return to his mother's custody. I have advised Bryan to, nevertheless, pack Chris' belongings that he would be taking with him and to go to the exchange point at the appointed time. Bryan will take all appropriate steps to ensure Chris goes with his mother. However, I expect that you will advise your client that no one is to attempt to physically force Christopher to go with Kelly, much the same way we reached the conclusion, in January, that it would be ineffective and possibly could result in someone getting injured if such actions are taken. I have explained to Bryan that there must be significant consequences for Christopher if he refuses to go and have reviewed the steps he will take if Christopher remains adamant about remaining with his father. Bryan has explained these consequences to Christopher and I am certain that they will be carried out, much the same way Kelly began to do in February of this year. I am writing this to you so that you may implore upon your client to resolve this matter without the need for further litigation. We can save each of our clients a significant amount of money, time and energy if this case can be discussed without the need for further court intervention. Wolf & Wolf Miller July 31, 2009 Page two Of course, with the history of these parties, I am not expecting that we will be able to accomplish this, but I would like to continue to try. I appreciate your time and attention in this matter and I hope we will be able to reach some agreement, so I look forward to hearing from you. Very tn0y ours, a an C. Wolf cc: Bryan Dunn P. 1 TRANSMISSION REPORT (FRI) JUL 31 2008 10:08 User/Account DESTINATION : 2486354 DESTAUMBER 2486354 F-CODE PAGES 3page RESULT OK NATHAN C. WoLp PHONE, 717-241-4436 DOCUMENT# TIME STORED TX START DURATION COMA ODE WOLF 8L WOLF Arrma mvs AT LAW 10 WEST FfTGT•T STREET CARLISLE, PENNSYLVANIA 17013 wolfandwolf(@-embargmail.com FAX TO: Douglas G. Miller, Esq. COMPANY: Irwin & McKnight PHONE NO.: FAX NO.: 717-249-6354 FROM: Nathan C. Wolf, Esq. PHONE NO.: 717-241-4436 PAX NO.: 717-241-4437 DATE: July 31, 2009 PAGES W/COVER: 3 REGARDING : Dunn v. Dunn REMARKS OR SPECIAL INSTRUCTIONS: : 8301851-168 JUL 31 10:07 JUL 31 10:07 46sec ECM S'TACY B. WOLF FACSIMILE 717-241-4437 Please see attached letter. Original will follow by mail. NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW KELLY J. DUNN, : NO. 2008 -2929 CIVIL TERM Defendant : IN CUSTODY CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, attorney for Plaintiff, do hereby certify that this date, I have served a copy of the Reply to Emergency Petition for Contempt by the means identified below and addressed as follows: SERVICE BY U.S. MAIL: Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 (Counsel of Record for Defendant) Respectfully submitted, WOLF & WOLF Date: August, 2009 Nath Wolf, Esquire 10 t High Street Carlisle, PA 17013 (717) 241-4436 Supreme Court I.D. No. 87380 Attorney for Plaintiff i??: -!D-:? CY Thl'` G wf'vS7 nn?} qIt, 2 t BRYAN T. DUNN IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. 2008-2929 CIVIL ACTION LAW KELLY J. DUNN IN CUSTODY DEFENDANT ORDER OF COURT AND NOW, Wednesday, August 26, 2009 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Tuesday, September 22, 2009 at 9:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ jacqueline M. Verney, E Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites 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 or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY 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 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 FILED--j.>r rig OF THF )rHr,NAF3Y 2009 AUG 28 PM 2: 4 n CUMIL, ANIA BRYAN T. DUNN, IN THE COURT OF COMMON PLEAS OF Plaintiff/Respondent CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 08-2929 CIVIL KELLY J. DUNN, Defendant/Petitioner IN CUSTODY ORDER AND NOW, this 24# day of September, 2009, a rule is issued on the plaintiff/respondent to show cause why he should not be cited in contempt. This rule is returnable Friday, September 11, 2009, at 10:00 a.m. Inasmuch as the plaintiff did not file a petition to modify prior to the instant contempt petition, the hour-long hearing in this case shall be limited to the question of whether or not he is in contempt of the existing custody order in this case. BY THE COURT, ?e Hess, J. Nathan Wolf, Esquire y e Plaintiff Douglas Miller, Esquire For the Defendant :rim LL 9/zl? RLELj . ? t)F TH C, ' "'" i ,4,Pv 2009 SEP -2 PH 1: 48 BRYAN T. DUNN, Plaintiff/Respondent V. KELLY J. DUNN, Defendant/Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-2929 CIVIL TERM IN CUSTODY IN RE: PETITION FOR CONTEMPT ORDER OF COURT AND NOW, this 11th day of September, 2009, after hearing, a contempt citation is issued. Adjudication is deferred on condition that the plaintiff/respondent pay to the defendant/petitioner counsel fees in the amount of $350.00 within 180 days hereof, and that he assure partial custody of Christopher in his mother, the defendant/petitioner, Kelly J. Dunn, on the following two weekends, from Friday at 8:30 p.m. until Sunday at 4:00 p.m. The father to provide transportation during the weekend of September 12th, and the mother to provide transportation during the weekend of September 19th. Otherwise, pending conciliation, primary custody to be in the father, plaintiff/respondent. This order is entered without prejudice to the conciliator to enter a proposed or recommended order in this case. This order is subject to the contempt powers of the court with respect to both parties. NO. 08-2929 CIVIL ?Nathan Wolf, Esquire For Plaintiff --'Douglas Miller, Esquire For Defendant :bg ?'ES m3cLrtcL Q lf?? By the Court, k+? ED`?-`irFI ,E 9F THE PRO I ' -()NOTARY 2009 SEP I I PM 3: 35 ,gg-- -.2 9a5' Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 - ---------------------------------- --------------------- ---- AOPC 1014 Rev.09/21/2009 aft i Karen Reid Bramblett, Esq. buperior Court of Venns?plbania Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary September 21, 2009 NOTICE OF DISCONTINUANCE OF ACTION RE: Dunn, B. v. Dunn, K. 101 MDA 2009 Appeal of: Mr. Bryan T. Dunn Initiating Document: Notice of Appeal Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 2008-2929 Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.superior.court.state.pa.us The above-captioned matter has been marked "Discontinued" with this court. Certification is being sent to the lower court. Attorney Name Participant Name Participant Type Douglas George Miller, Esq. Ms. Kelly J. Dunn Appellee Nathan Charles Wolf, Esq. Mr. Bryan T. Dunn Appellant OF THE PROT".ONGT Y 2003 SEP 22 Pill I : tt CUB: --: IN THE SUPERIOR COURT OF PENNSYLVANIA SITTING IN HARRISBURG No. 101 MDA 2009 Bryan Dunn V. Kelly Dunn : Appeal from the OE 11/21/09 :Court of Common Pleas :for the county of Cumberland :No. 2008-2929 9/21/09 - The above appeal is hereby withdrawn and discontinued by order of: Nathan C. Wolf, Esquire Attorney for Appellant 9/21/09 - DISCONTINUED TRUE COPY FROM RECORD IN TESTIMONY WHEREOF, I have hereunto set my hand and the seal of said Court, at Harrisburg, this 21st day of September 2009 Deputy Prothonotary Or THE FP'O ; " ,NOTARY 2009 SEP 22 P 1: 4 Karen Reid Bramblett, Esq. 6uperi.or Court of Vennoplbauia Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary September 21, 2009 Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Dunn, B. v. Dunn, K. 101 M DA 2009 Trial Court Docket No: 2008-2929 Dear Mr. Long: Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.superior.court.state.pa.us , received from the Superior Court of Pennsylvania, Middle District Office, the certificate of discontinuance of the court, in the above entitled case. ORIGINS, AECORDCOfiMEhfM Original Record Item Description ? Part 1 Return to: Superior Court of Pennsylvania Office of the Prothonotary Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 717-772-1294 /wjt FILED THE, 200` SAP 22 P; CUMa .., SEP 232009 BRYAN T. DUNN, Plaintiff V. KELLY J. DUNN, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2008-2929 : IN CUSTODY ORDER OF COURT CIVIL ACTION - LAW AND NOW, this I S'` day of _ , 2009, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. The prior Orders of Court dated November 21, 2008 and September 11, 2009 are hereby vacated. 2. The Father, Bryan T. Dunn and the Mother, Kelly J. Dunn, shall have shared legal custody of Christopher Bryan Dunn, born April 26, 1995 and Katharine Elizabeth Dunn, born October 18, 1999. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the Children's general well-being including, but not limited to, all decisions regarding their health, education and religion. Pursuant to the terms of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the children including, but not limited to medical, dental, religious or school records, the residence address of the children and the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. Both parents shall be entitled to full participation in all educational and medical/treatment planning meetings and evaluations with regard to the minor children. Each parent shall be entitled to full and complete information from any physician, dentist, teacher or authority and copies of any reports given to them as parents including, but not limited to: medical records, birth certificates, school or educational attendance records or report cards. Additionally, each parent shall be entitled to receive copies of any notices which come from school with regard to school pictures, extracurricular activities, children's parties, musical presentations, back-to- school nights, and the like. 3. During the school year, Mother shall have primary physical custody of Katharine and Father shall have primary physical custody of Christopher. 4. During the summer, Mother shall have primary physical custody of both children from the first Friday after school recesses at 7:00 p.m. and continuing for five consecutive weeks until Friday at 7:00 p.m. when Father shall have six consecutive weeks of physical custody of both children, but in no event shall he have physical custody of Katharine beyond the Friday before school starts at 7:00 p.m. (Katharine's school recesses approximately one week before Christopher's, so Mother will in effect have Katharine for approximately six weeks, thus Father should have physical custody for six weeks of physical custody of Katharine if the vacation calendar permits.) 5. Thanksgiving shall be defined from 7:00 p.m. Wednesday to Monday at 5:00 p.m. Father shall have physical custody of both children in odd numbered years and Mother shall have physical custody of both children in even numbered years. 6. Christmas shall be divided into two Blocks. Block A shall be from 7:00 p.m. the day after school recesses for Christmas vacation to December 26 at 12:00 noon. Block B shall be from December 26 at 12:00 noon to 5:00 p.m. the day before school resumes. Father shall always have physical custody of boyh children for Block A in odd numbered years and Block B in even numbered years and Mother shall always have physical custody of both children for Block A in even numbered years and Block B in odd numbered years. 7. Easter shall be defined as the Friday before Easter at 7:00 p.m. to Easter Sunday at 5:00 p.m. Mother shall have physical custody of both children in even numbered years and Father shall have physical custody of both children in odd numbered years. 8. Transportation shall be generally shared with Father being responsible for all transportation for the first two exchanges in the summer. For all other exchanges, the parties shall meet at the Sheetz in Lewistown. 9. The parties shall have reasonable telephone contact with the children. Each household shall call the other household at least one time per week. Christopher shall initiate a phone call to Mother every Tuesday at 7:00 p.m. and Katherine shall initiate a phone call to Father every Saturday at 7:00 p.m. During these phone calls each child will speak to the non-custodial parent. 10. Mother shall ship Christopher's trumpet to him as soon as practicable. Father shall reimburse Mother for the cost of shipping. 11. This Order is entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT, / Kevin A ess, J. cc:?athan C. Wolf, Esquire, Counsel for Father //Douglas G. Miller, Esquire, Counsel for Mother £S matL?c BRYAN T. DUNN, Plaintiff V. KELLY J. DUNN, Defendant PRIOR JUDGE: Kevin A. Hess, J. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-2929 CIVIL ACTION - LAW : IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT 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: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Christopher Bryan Dunn April 26, 1995 Father Katharine Elizabeth Dunn October 18, 1999 Mother 2. A Conciliation Conference was held in this matter on September 22, 2009, with the following in attendance: The Father, Bryan T. Dunn, with his counsel, Nathan C. Wolf, Esquire, and the Mother, Kelly J. Dunn, by telephone, with her counsel, Douglas G. Miller, Esquire. 3. The Honorable Kevin A. Hess previously entered Orders of Court dated November 21, 2008 and September 11, 2009 providing for shared legal custody, with Mother having primary physical custody of Katharine and Father having primary physical custody of Christopher. 4. The parties agreed to an Order in the form as attached. Date Jaacq?iinnee M. Verney, Esquire Custody Conciliator 2009 SEA-' 25 v'v el NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFF 2010 ?F? 29 ?? ?? `l3 C" J BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW KELLY J. DUNN, : NO. 2008 -2929 CIVIL TERM Defendant : IN CUSTODY PETITION FOR MODIFICATION NOW COMES the plaintiff, Bryan T. Dunn, by and through his counsel, Nathan C. Wolf, Esquire, and presents the following petition for modification of custody and in support thereof represents as follows: 1. The petitioner is Bryan T. Dunn, an adult individual residing at 1874 Douglas Drive, Carlisle, Cumberland County, Pennsylvania 17013. 2. The respondent is Kelly J. Dunn, an adult individual residing at 30 Troutbrook Road, Roulette, Potter County, Pennsylvania 167463. 3. The parties are the natural parents of two (2) minor children born of their marriage, namely: Christopher Bryan Dunn, born April 26, 1995, now age 15, and Katharine Elizabeth Dunn, born October 18, 1999, now age 10. 4. The parties are subject to a custody Order issued by this Court dated September 25, 2009. A true and correct copy of this Order is attached hereto as Exhibit A. 5. This Order was entered following a conciliation conference held on September 22, 2009 at which time, the parties reached an agreement to wit primary custody of the parties' son would be with Father and primary custody of the parties' daughter would be with Mother, an alternating holiday schedule was established and the Order likewise provided for Mother to have custody of both children for five weeks during the first part of the summer and for Father to have six weeks of custody of both of the children for the second part of the summer. ?vfT? &/? ?<Xjv a711( O eVa ql 3vq 6. The holiday schedule provided for both children to be with Mother on the Christmas holiday from December 26 until the day before school resumed in odd years. 7. Mother, in communications with Christopher and Father, indicated that she was unavailable to exercise the Christmas holiday because she did not have time to spend with Christopher and therefore Christopher spent that time with Father. 8. Mother was also granted custody of both children from 7:00 p.m. prior to the Easter holiday until Easter Sunday at 5:00 p.m. on even numbered years. 9. Mother again declined to exercise her period of custody over the holiday due to her work schedule and because she did not want to drive to the custody exchange point in Lewisburg, Pennsylvania. (The exchange point was incorrectly identified as the Sheetz in Lewistown, in the Order of September 25, 2009, and exchanges have occurred at the Sheetz in Lewisburg since the entry of the Order.) 10. Father was willing to adjust the time of the exchange to accommodate Mother's work schedule and Mother would not agree because she likewise demanded to have Christopher until Monday following Easter, which would have caused Christopher to miss school. 11. Father agreed to change the Friday exchange time but would not agree to the additional day because it interfered with Christopher's school attendance. 12. At the last minute, the school modified its snow make-up day schedule to allow for the visit to have extended through to Monday, and Father attempted to communicate the change to Mother, and Mother would not return calls to discuss the change, even when it meant she would have gotten to have an extended visit with the child, as per her request. 13. These types of communication difficulties have plagued the custodial situation involving both children, as Father has diligently ensured Christopher has made regular attempts to contact his Mother, and often Mother does not answer the phone, and does not return the child's telephone calls at all. 14. The effect of Mother's failure to exercise her Court-Ordered periods of custody has been significant to the child and the child undergoes periods of emotional distress for weeks following these missed visits and Mother's failure to communicate with him. 15. Despite these difficulties, Father made arrangements for Christopher to visit his mother when Father's girlfriend was travelling to visit her family in the general area of Roulette and the child did get to see Mother for one evening in early March 2010. This had been the first time the child had seen Mother since June 2009, except for being present for custody exchanges. 16. Other than the difficulties he has had following the missed visits, the child is thriving in Carlisle in Father's custody and is receiving high honors in school, maintaining a grade point average of 3.666 in his ninth grade year. 17. Furthermore, the child is involved in extra-curricular activities including band as a non-credit elective, junior firefighter program at the Friendship Hose Company in Newville, where Father works as a paramedic with West Shore EMS, and the child is involved with a hunting club through the high school. 18. As a result, the child has indicated to Father that he would like to spend a larger part of the summer in Carlisle, where his friends and activities are located. 19. In fact, Christopher was unable to participate in the marching band as a for-credit elective because the weeks of the summer spent with Mother prevented him for attending the required practices. 20. Father is therefore requesting that the Order be modified to reduce the summer period with Mother (for Christopher) to a minimum of two weeks with a maximum of five weeks, depending on the child's activity schedule and voiced preference. 21. Likewise, Father is requesting that the Order contain a provision that Mother shall use reasonable efforts to ensure that both children be able to visit and spend time with Father's relatives (i.e. mother, siblings and their children) who live in Potter County, near Mother's residence. 22. In support of that request, it is averred that Father's family is more than willing to make arrangements to share transportation with Mother for such visits. 23. The need for such a provision is evidence by the fact that since September 2009, the children have had no visits with Father's family during Mother's periods of custody, despite the fact that these family members are within nine (9) miles of Mother's house. 24. Father believes and therefore avers that the best interests and permanent welfare of the child will be served by the modification of the Order as described above because the proposed schedule places the proper emphasis the child's interests, and his social, emotional and academic growth. 25. Moreover, Father believes and therefore avers that in order to participate in programs like the school-sponsored driver's education program and the junior firefighting training programs in future years, that the Order would need to be modified to accommodate those activities during the summer of 2011. 26. Father has exhausted all efforts to ensure that the child is able to have a strong relationship with Mother and has documented those efforts since the time of the entry of the existing order. 27. The prior judge assigned to this matter is the Honorable Kevin A. Hess and the prior conciliator is Jacqueline M. Verney, Esquire. WHEREFORE, for the reasons set forth herein, plaintiff, Bryan T. Dunn, respectfully requests that the Court enter an order modifying the existing custody order to reduce Christopher's period of required summer visitation with Mother to two weeks with a maximum period of five weeks, along with any additional relief that the Court may deem appropriate and just. Respectfully submitted, WOLF & WOLF, Attorneys at Law Date: April -27,2010 10 West JiO Street Car ' e, PA 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Plaintiff VERIFICATION I do hereby verify that I am the plaintiff in the foregoing action and that the facts set forth in this petition for modification are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. April a, 2010 1 SEP 2 3 2009 BRYAN T. DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2008-2929 CIVIL ACTION - LAW KELLY J. DUNN, Defendant : IN CUSTODY ORDER OF COURT _4?0 917 AND NOVA%. this day of , 2009, upon consideration of the attached Custody Conciliati n Report, it is ordered and directed as i:ollows: The prior Orders of Court dated November 21, 2008 and September 11, 2009 are hereby vacated. 2. The Father, Bryan T. Dunn and the Mother, Kelly J. Dunn, shall have Shared legal custody of Christopher Bryan Dunn, born April 26, 1995 and Katharine Elizabeth Dunn, born October 18, 1999. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions .affecting the Children's general well-being including, but not limited to, all decisions regarding their health, education and religion. Pursuant to the terms of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the children including, but not limited to medical, dental, religious or school records, the residence address of the children and the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof,. with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. Both parents shall be entitled to full participation in all educational and medical/treatment planning meetings and evaluations with regard to the minor children. Each parent shall be entitled to full and complete information from any physician, dentist, teacher or authority and copies of any reports given to them as parents including, but not limited to: medical records, birth certificates, school or educational attendance records or report cards. Additionally, each parent shall be entitled to receive copies of any notices which come from school with regard to school pictures, extracurricular activities, children's parties, musical presentations, back-to- school nights, and the like. 3. During the school year, Mother shall have primary physical custody of Katharine and Father shall have primary physical custody of Christopher. 4. During the summer, Mother shall have primary physical custody of both children from the first Friday after school recesses at 7:00 p.m. and continuing for five consecutive weeks until Friday at 7:00 p.m. when Father shall have six consecutive weeks of physical custody of both children, but in no event shall he have physical custody of Katharine beyond the Friday before school starts at 7:00 p.m. (Katharine's school recesses approximately one week before Christopher's, so Mother will in effect lave Katharine for approximately six weeks, thus Father should have physical custody for six weeks of pli sical custody of Katharine if the vacation calendar permits.} 5. Thanksgiving shall be defined from 7:00 p.m. Wednesday to Monday at 41:00 p.m. Father shall have physical custody of both children in odd numbered years and "Mother shall have physical custody of both children in even numbered years. 6. Christmas shall be divided into two Blocks. Block A shall be from 7:00 p.m. the day after school recesses for Christmas vacation to December 26 at 12:00 noon. Block B shall be from December 26 at 12:00 noon to 5:00 p.m. the day before school resumes. Father shall always have physical custody of boyh children for Block A in odd numbered years and Block B in even numbered years and Mother shall always have physical custod-; of both children for Block A in even numbered years and Block Bin odd numbered years. 7. Easter shall be defined as the Friday before Easter at 7:00 p.m. to Easter Sunday at 5:00 p.m. Mother shall have physical custody of both children in even numbered years and Father shall have physical custody of both children in odd numbered years. 8. Transportation shall be generally shared with Father being responsible for ill transportation for the first two exchanges in the summer. For all other exchanges, the parties shall meet at the Sheetz in Lewistown. 9. The parties shall have reasonable telephone contact with the children. Each household shall call the other household at least one time per week. Christopher shall initiate a phone call to Mother every Tuesday at 7:00 p.m. and Katherine shall initiate a phone call to Father every Saturday at 7:00 p.m. During these phone calls each child will speak to the non-custodial parent. 10. Mother shall ship Christopher's trumpet to him as soon as practicable. Father shall reimburse Mother for the cost of shipping. 11. This Order is entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT. vin A. Hess, J cc: Nathan C. Wolf. Esquire, Counsel for Father :.?.,.. ,y. Douglas G. Mi l ler. Esquire, Counsel for Mother J' ` ' 3 BRYAN T. DUNN, Plaintiff V. KELLY J. DUNN, Defendant PRIOR JUDGE: Kevin A. Hess, J. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2008-2929 CIVIL ACTION - LAW : IN CUSTODY 1. The pertinent information concerning the Children who are the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Christopher Bryan Dunn April 26, 1995 Katharine Elizabeth Dunn October 18, 1999 Father Mother 2. ..\ Conciliation Conference was held in this matter on September 22, 2009, with the followina in attendance: The Father, Bryan T. Dunn, with his counsel, Nathan C. `Volf, Esquire. and the Mother, Kelly J. Dunn, by telephone, with her counsel, Douglas G. Miller, Esquire. 3. The Honorable Kevin A. Hess previously entered Orders of Court dated November 21, 2008 and September 11, 2009 providing for shared legal custody, with Mother having primary physical custody of Katharine and Father having primary physical custody of Christopher. 4. The parties agreed to an Order in the form as attached. Date )acq line M. Verney, Esquire ?- Custody Conciliator NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF BRYAN T. DUNN, Plaintiff V. KELLY J. DUNN, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008 -2929 CIVIL TERM IN CUSTODY CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, attorney for Plaintiff, do hereby certify that this date, I have served a copy of the foregoing Petition for Modification by the means identified below and addressed as follows: SERVICE BY U.S. MAIL: Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 (Counsel of Record for Defendant) Respectfully submitted, WOLF & WOLF Date: April _ 3 , 2010 ?e, . , Esquire Wgh Street CaruPA 17013 (717) 241-4436 Supreme Court I.D. No. 87380 Attorney for Plaintiff I BRYAN T. DUNN PLAINTIFF V. KELLY J. DUNN DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2008-2929 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Wednesday, May 05, 2010 upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Thursday, June 03, 2010 at 9:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custodv orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ ac ueline M. Verne Es Ve Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites 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 or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DaO t= ' HA VE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE T HE OFFIelli-SET o -t FO RTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. 1Cumberland County Bar Association ? 1-71 5 •? . ! D t ? ?t QA) ?''t 32 South Bedford Street r ' -v Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 cr, _73 Vu n 4<4,3 -A; t- k_ • S • / 0 COP ?l aced r\ Al? • CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Bryan T. Dunn VS. Kelly J. Dunn 2008-2929 Civil Term 101 MDA 2009 • The documents comprising the record have been numbered from No.1 to 419, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 03/09/2009. Curtis R. Lon r thonot y Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Received in Superior Court Date Signature & Ti p{ 1 U LA MoME 0 V BRYAN T. DUNN, Plaintiff V. KELLY J. DUNN, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2008-2929 CIVIL ACTION - LAW : IN CUSTODY ORDER OF COURT AND NOW, this 5?1 day of , 2010, upon consideration of the attached Custody Concili ion Report, it is ordered and directed as follows: 1. A Hearing is schedu ed in Court Room No. , of the Cumberland County Court House, on the /, day of , 2010, at ) i 3 d o'clock, L-. M., at which time testimony will-be taken. For purposes of this Hearing, the Father shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be expected to testify at the Hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least five days prior to the Hearing date. 2. Pending further Order of Court or agreement of the parties, the prior Order of Court dated September 25, 2009 shall remain in full force and effect. 3. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT, c than C.WoIf, Esquire, counsel for Father /Douglas G. Miller, Esquire, Counsel for Mother (21o t e S 'I'a" LE V to/?/1v ti BRYAN T. DUNN, Plaintiff V. KELLY J. DUNN, Defendant PRIOR JUDGE: Kevin A. Hess, J. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2008-2929 CIVIL ACTION - LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT 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: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Christopher Bryan Dunn April 26, 1995 Father Katharine Elizabeth Dunn October 15, 1999 Mother 2. A Conciliation Conference was held in this matter on June 3, 2010, with the following in attendance: The Father, Bryan T. Dunn, with his counsel, Nathan C. Wolf, Esquire, and the Mother, Kelly J. Dunn, by telephone, with her counsel, Douglas G. Miller, Esquire. 3. The Honorable Kevin A. Hess, P.J., previously entered an Order of Court dated September 25, 2009 providing for shared legal custody, with Mother having primary physical custody of Katharine and Father having primary physical custody of Christopher, and shared physical custody in the summer with the children together for the first 5 weeks of the summer with Mother and the next 6 weeks with Father. 4. Father's position on custody is as follows: Father seeks to reduce the amount of time Christopher spends with Mother in the summer. Father asserts that Christopher has other activities in the Carlisle area that he prefers to participate in and that Mother has not exercised all of her time over the holidays with Christopher. Father also asks that the children be permitted to visit with his relatives that live in Mother's vicinity. % 5. Mother's position on custody is as follows: Mother seeks to maintain the status quo. She notes that the summer schedule that Father agreed to in the September 25, 2009 Order has not even been utilized yet. She disputes Father's assertion that she has not exercised her time with Christopher. Mother is not opposed to having the children visit Father's relatives, but objects to having it in a court order since the paternal relatives are not parties to the action. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing and maintaining the status quo. It is expected that the Hearing will require one-half day. Date cqu #ne M. Verney, Esquire Custody Conciliator BRYAN T. DUNN, Plaintiff vs. KELLY J. DUNK, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0.08-2929 CIVIL IN CUSTODY ORDER AND NOW, this for October 13, 2010, is Number 4, Cumberland ~`~' day of July, 2010, hearing in the above-captioned matter set to Friday, October 22, 2010, at 1:30 p.m. in Courtroom Courthouse, Carlisle, PA. BY THE COURT, '~ Nathan Wolf, Esquire For the Plaintiff ~/ Douglas Miller, Esquire For the Defendant :rlm /n~ I ha ~ E3 rr~,~.i l.~.c '}~~ Q~~v ~~ C7 r-a ca ', o _,~t ~a ;5.; L C_e '_''~ ~ ~ .T_ ~~~' _ i _ p t__ BRYAN T. DUNN, Plaintiff/Petitioner: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V . c3 ..., C o • ro KELLY J. DUNN, ~r,..9 ~ Defendant/Respondent: NO. 2008-2929 CIVIL TERI~r' ~ - rv IN RE: CUSTODY ~ An ~ ORDER OF COURT ~ c .~.. AND NOW, this 22nd day of October, 2010, tFi`is`° matter having been called for hearing, in accordance with 0 rn ..~ r rn +~ 4 -{ o -,~ b ~ .y ~ ~' --< the agreement of the parties, the existing custody order in this case is modified as follows: 1. The prior orders of court dated November 21, 2008; September 11, 2009; and September 25, 2009, are hereby vacated. 2. The father, Bryan T. Dunn, and the mother, Kelly J. Dunn, shall have shared legal custody of Christopher Bryan Dunn, born April 26, 1995, and Katharine Elizabeth Dunn, born October 15, 1999. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the children's general well-being including, but not limited to, all decisions regarding their health, education, and religion. Pursuant to the terms of 23 Pa. C.S. Section 5309, each parent shall be entitled to all records and information pertaining to the children including, but not limited to, medical, dental, religious, or school records, the residence address of the children and the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. Both parents shall be entitled to full participation in all educational and medical/treatment planning meetings and evaluations with regard to the minor children. Each parent shall be entitled to full and complete information from any physician, dentist, teacher, or authority and copies of any reports given to them as parents including, but not limited to: medical records, birth certificates, school or educational attendance records, or report cards. Additionally, each parent shall be entitled to receive copies of any notices which come from school with regard to school pictures, extra-curricular activities, children's parties, musical presentations, back to school nights, and the like. 3. During the school year mother shall have primary custody of Katharine and father shall have primary custody of Christopher. 4. During the summer father shall have primary physical custody of both children from the first Friday after Katharine's school recess at 7:00 p.m. and continuing for six consecutive weeks until Friday at 7:00 p.m. when mother shall have five and a half consecutive weeks of physical custody of both children until seven days before Christopher's school starts. The custody exchange shall take place at 7:00 p.m. on the date one week before Christopher's school starts. 5. Thanksgiving shall be defined from 7:00 p.m. Wednesday to Monday at 5:00 p.m. Father shall have physical custody of both children in even-numbered years and mother shall have physical custody of both children in odd-numbered years. 6. Christmas shall be defined as the day after school recesses for Christmas vacation at 7:00 p.m. until the day before school resumes at 5:00 p.m. The school recess scheduled for the child being transferred shall control. Mother shall have physical custody of both children in even-numbered years, and father shall have physical custody of both children in odd-numbered years. In addition, the party not having custody of the children for Christmas vacation shall be entitled to have custody of the children on the weekend prior to Christmas from Friday at 7:00 p.m. until Sunday at 5:00 p.m., provided that seven days notice is provided and that the party exercising the visitation provides all transportation. 7. Easter shall be defined as the Friday before Easter at 7:00 p.m. until the Monday following Easter at 5:00 p.m., as long as the transferred child does not have school on the Monday following Easter. In the event the transferred child has school, then the custody on Easter shall terminate on Easter Sunday at 5:00 p.m. Mother shall have physical custody of both children in even-numbered years and father shall have physical custody of both children in odd-numbered years. 8. Transportation shall be generally shared with father being responsible for all transportation for the first two exchanges in the summer. For all other exchanges, the parties shall meet at the Sheetz in Lewisburg. 9. The parties shall have reasonable telephone contact with the children. Each household shall call the other household at least one time per week. Christopher shall initiate a phone call to mother every Tuesday at 7:00 p.m. and Katharine shall initiate a phone call to father every Saturday at 7:00 p.m. During these phone calls each child will speak to the non-custodial parent. t11Wdl1lAS~tIJ3d ~1Wf10~ Otddl~l~9Wf1~ a~I~~~J~~~ ~ By the Court, Nathan C. Wolf, Esquire For the Plaintiff/Peitioner Douglas G. Miller, Esquire For the Defendant/Respondent :lfh ~ . '~~~ES m~.~ls~.~-t-.- o~~.S/tv ~~