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HomeMy WebLinkAbout04-0834HEIDI E. DUNCAN, PLAINTIFF VS, THOMAS F. SMITH, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. CHILD CUSTODY COMPLAINT FOR CUSTODY AND NOW comes the above-named Plaintiff, by her attorney Samuel L. Andes, and makes the following Complaint for custody in this matter: 1. The Plaintiff is Heidi E. Duncan an adult individual who resides at 212 Barley Field Circle, Carlisle, Cumberland County, Pennsylvania 17013. 2. The Defendant is Thomas F. Smith, an adult individual who resides at 671 Dick Hayes Road, Scottsboro, Alabama 35769. 3. The Plaintiff and Defendant are formerly husband and wife. 4. The Plaintiff and Defendant are the parents of one minor child, Sarah Joan Smith, age 12, born 15 November 1991. 5. For the past five years, the said child has resided with the Plaintiff in or near Carlisle, Cumberland County, Pennsylvania. 6. At the time of the parties' divorce, in January of 1994, the Circuit Court for Jackson County, Alabama entered an Order which, inter alia, awarded primary physical custody of the said child to Plaintiff and set a schedule of temporary custody for the Defendant. A copy of that final Decree in Divorce is attached hereto and marked as Exhibit A. 7. Since the entry of that Order, the circumstances between the parties and involving the child have changed significantly as a result of which the Order should be modified. Those changes include: A. Plaintiff and the child have resided in Pennsylvania continuously for almost ten years; B. The child is now 12 years of age; C. The Defendant's circumstances, and his moral, ethical, and other conduct is no longer conducive to him having prolonged periods of custody of the child; D. The current schedule of custody is disruptive to the child's proper upbringing. 8. Other than the Plaintiff and Defendant, there is no other party who has a lawful claim to custody regarding the said child or who has claimed such right. Other than the Alabama divorce action, there has been no other litigation between the parties involving the custody of the child. 9. This Court now has jurisdiction over this case, and is the proper venue for this case, because Pennsylvania, and Cumberland County, are now the home jurisdiction of the child, all information relevant to the custody proceeding, and all witnesses regarding the custody proceeding, are located here, and because the courts of Alabama, or any other state, no longer have any meaningful connection to the child, the parties, or the custody claims. WHEREFORE, Plaintiff prays this Court to award her primary legal and physical custody of the child and set a limited schedule of the father's periods of temporary custody and set such conditions as are reasonably necessary to protect the child and her moral Upbringing and development. Attorney for Plaintiff/Defendant Supreme Court ID # 17225 525 North 12th Street Lemoyne, Pa 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). HEIDI E. DUNCAN HEIDI E. SMITH PLAINTIFF THI~~, i' '~)~ VS. ) ALABAMA THOMAS F, SMITH ) CIVIL ACTION NO.: DEFENDANT ., ....., ~l,, i) DR-93-341 ) IN RE: ',THE MARRIAGE OF ) HEIDI E. SMITH AND, THOMAS F. 'SMITH ) PINAL DECREE OF DIVORCE )' '. IN THE CIRCUIT COURT )~ F')kED ;N 0F):k,E FOR JACKSON COUNTY This matter come on to be heard before the Court fori'hear~ng on the Plaintiff's Compi'aint for Divorce and, the matter being called for trial, the Court was informed by counsel for the parties that they have reached an agreement regarding the issues pending between them. After taking testimony from the Plaintiff, the Court is of the opinion that the Plaintiff is entitled to a divorce from the Defendant on the grounds of incompatibility of temperament and the settlement agreement recited into the record is fair and is hereby approved by the Court. It is therefore ORDERED, ADJUDGED AND DECREED by the Court as follows: 1. That the Plaintiff and Defendant are from the rendition of this decree, divorced from the bonds of matrimony on accoun~ of ' incompatibil~!~ of ~temperament. 2. That Plaintiff the' nor the Defendant shall again marry,~,, except,to ~each other, until sixty (60) days after the date of thi's decree and, if an appeal~is taken in this cause within forty-two (42) days of the date hereof, neither the Plaintiff nor the Defendant shall again marry, except to each other during the pendency of said appeal. 3. The primary care, custody and control of the parties minor child, namely Sarah Joan Smith, whose date of birth is November 15, 1991 shall be vested into the Wife subject to the rights of the Husband to visit with said child in accordance with the following schedule: A. so long as the Wife and the child remain citizens of Jackson County, Alabama, the Husband shall have the right to the standard visitation schedule which is more specifically set out and incorporated in the Exhibit "A" attached hereto. B. At such time as the Wife and child shall move from Jackson County, Alabama, then in such event the Husband shall have the right to visit with the child for four consecutive weeks during summer vacation until the child reaches age five (5) and thereafter six (6) consecutive weeks, one week during AEA and during Christmas vacation from December 26th until the day before school resumes in the jurisdiction where the wife resides. C. So long as the Wife and child remain residents of Jackson County, Alabama, the parties shall exchange custody at the home of the Husband's parents. Do Upon the Wife and child moving from Jackson County, Alabama, the parties shall meet approximately half way between the two parties residences for the exchange of custody. E. The Wife shall notify the Husband thirty (30) days prior to m6ving with the child from Jackson County, Alabama, or as soon as reasonably practical. 4. The Husband shall pay to the Wife the sum of $260.00 per month by the 15th day of each month for the support, education and maintenance of the parties minor child. All such payment shall be made through the Clerk of the Circuit Court of Jackson County, Alabama, to be disbursed to the Wife. The Courts standard employees withholding order, a copy of which is attached shall be made a part of this Decree. 5. The Husband shall continue to maintain medical insurance upon the minor child and each party shall bare one-half of the uninsured hospital, dental, doctors and other medical expenses incurred on behalf of the child. 6. Each party shall have and receive as their own those items of household furniture, furnishings and other items of personal property now in their possession. 7. The Wife shall assume and become responsible for the indebtedness for the financing of her automobile and the Visa Credit Card. The Husband shall assume and become responsible for the indebtedness to the First National Bank of Scottsboro and he shall indemnify and hold Wife harmless for the payment thereof. 8. The Husband shall be restrained and enjoined from harassing, abusing, molesting, coming around the person of the Wife, or in any other manner communicating with her upon pain contempt. The Wife is likewise enjoined from such actions directed directed toward the Husband. However, the parties may communicate over the telephone as is reasonably necessary to discuss matters involving the parties' child. 9. The Wife shall at all times keep the Husband informed of the mailing address and telephone number of the child, and she shall notify the Husband in the event of any serious illness or injury suffered by the child. The Clerk shall forward a copy of this Order to counsel for the parties. // Done and Ordered this~4~6~a day of January, 1994. COURT'S EXHIBIT "A" RIGHTS OF VISITATION FOR NON-CUSTODIAL PARENT 1. Alternate weekends of each month from 5 o'clock p.m. Friday to 5 o'clock p.m. the following Sunday, beginning the first weekend of the month following the signing of this order. The first weekend of a month begins on the first Friday of each month. 2. Christmas vacation in even-numbered years from 6 o'clock p.m. on the day school is recessed for vacation (school is defined as the school in which the child is enrolled, or the public school system in which the child resides if the child is not in school) to 2 o'clock p.m. Christmas Day, beginning with the first Christmas of the even-numbered year after the signing of this order. In odd-numbered years, from 2 o'clock p.m. Christmas Day until 5 o'clock p.m. the day before school resumes after Christmas vacation, beginning the first Christmas of the odd-numbered year after the signing of this order. 3. Thanksgiving in odd-numbered years from 5 o'clock p.m. the Wednesday before Thanksgiving until 5 o'clock p.m. the Sunday immediately following Thanksgiving holidays beginning the first Thanksgiving of the odd-numbered year after the signing of this order. 4. Spring school vacation or Easter vacation from 5 o'clock p.m. the day school is recessed until 5 o'clock p.m. the day prior to the day school resumes at the end of said vacation period. 5. Labor Day weekend from 5 o'clock p.m. the Friday of that holiday weekend until 6 o'clock p.m. the following Monday in odd- -2- numbered years b~ginning the first of such holidays to occur in the odd-numbered year after the. signing of this order. 6. Four continuous weeks during the summer school vacation period, the dates of which are to be designated by the non- custodial parent, with reasonable advance notice to the custodial parent, and during which time the custodial parent shall have reasonable rights of visitation for reasonable periods of time confined to the city of the non-custodial parent's residence. The non-custodial parent's obligation to pay support shall not abate during the four weeks of summer vacation. 7. The mother is to always have Mother's Day from 9 o'clock a.m. until 6 o'clock p.m. beginning the first Mother's Day after the signing of this order. The father is to always have Father's Day from 9 o'clock a.m. until 6 o'clock p.m. beginning the first Father's Day after the signing of this order. 8. The custodial parent is hereby ordered to surrender the child to the non-custodial parent at the beginning of the non- custodial parent's visitation period at the residence of the husband's parents. The non-custodial parent is hereby ordered to return the child to the custodial parent at the end of the visitation period, at the residence of the husband's parents. 9. Definition of "child": The above-stated visitation applied to all children the subject to this cause of action under the age of 19 years and not otherwise emancipated. -3- IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the custodial parent who intends a change 6f place of residence must give written notice by certified mail thirty (30) days prior to the intended date of change giving new address of residence to the non-custodial parent. The notice must be given on or before the custodial parent changes the child's place of residence or, if the custodial parent did not know or could not have known of the change within a thirty (30) day period, then the notice must be given on the first day that the custodial parent knew or should have known of the change. HEIDI E. DUNCAN PLAINTIFF V. THOMAS F. SMITH DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : 04-834 CIVIL ACTION LAW : : IN CUSTODY ORDER OF COURT AND NOW, Tuesday, March 02, 2004 ., upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear betbre Melissa P. Greevy, Esq. , the conciliator, at 301 Market Street, Lemoyne, PA 17043 on Thursday, April 01, 2004 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. All children age five or older may also be [~resent at the conference. Failure to appear at the conference may provide grounds for entTy 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: /si Melissa P Greevy. Esq. 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 TillS 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 HEIDI E. DUNCAN, Plaintiff VS, THOMAS F. SMITH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 0~-834 IN DIVORCE AFFIDAVIT OF SERVICE BY CERTIFIED MAIL AMY M. HARKINS, being duly sworn according to law, deposes and says as follows: 1. That she is an employee of Samuel L. Andes, attorney for the Plaintiff herein. 2. That on 2 March 2004, she delivered to the U.S. Postal Service in Lemoyne, Pennsylvania, as certified mail (Receipt No. 7001 0360 0001 3442 0634), return receipt requested, addressed to the Defendant herein, a true and correct copy of the Complaint in Divorce filed in the above-captioned action duly endorsed with a Notice to Defend and Claim Rights in the divorce action. 3. Said return receipt card is attached hereto as Exhibit A showing a date of delivery to the Defendant of 5 March 2004. Sworn to and subscribed before me this -~ t~ day of /~/~,'l , 2004. · ComCete items 1, 2, and 3. Also complete item 4 if Reefltcted DelivenJ is desired. · pflflt your nm~e ofld addross o~ the revoke so ~at wo can m~4'n the card to you. · Atta4=h this card to the back of the mallpJece, addrees dtlfl~ent from item 17 rgye~ if YES, e~ter delivery addfees below: [] No [] Return Receipt f~' Merchandise l"t insured Mail i-I C.O.D. Restfl~ed Delivery? fEx~ra Fee) i-m Yes 2. A,t~..umb~ ~,e~) 7001 036-'~' 0001-~'3442 0634 ~S Form f~l~ ASe~gust 2001 , , ,E~, mesflc Return Receipt 1025954)2-M-1540 A APR 0 7 2004 HEIDI E. DUNCAN, Plaintiff THOMAS F. SMITH, Defendant IN THE COURT Of COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-834 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY ORDER OF COURT AND NOW, this ~ day of April, 2004, upon consideration of the attached Custody Conciliation Summary Report, it is hereby ordered and directed as follows: 1. Le.qal Custo.~.y.. The Mother, Heidi E. Duncan, shall have primary legal custody of the minor child, Sarah Joan Smith, born November 15, 1991. The parties shall at ail times keep each other informed of their mailing address, residential address, and telephone number. Mother shall have a duty to keep Father informed of any event of serious illness or injury suffered by the child. 2. Physical Custody. Mother shall have primary physical custody. Father shall have partial physical custody which shall be arranged as follows: A. Upon thirty (30) days notice to Mot'her, four (4) consecutive weeks during the Summer school recess. B. Annually, the period of December 26th through January 1st. C. At other times as the parties mutually a~gree. 3. During any period of custody or visitation the parties to this Order shall not possess or use controlled substances, neither shall they consume alcoholic beverages to the point of intoxication. The parties shall likewise ensure, to the extent possible, that the other household members and/or house guests comply with this prohibition. 4. During any period of partial custody, there shall be no males, other than family members, to include cousins, present with the minor child without the direct supervision and presence of the Father. NO. 04-834 CIVIL TERM 5. The Cumberland County Court of Common Pleas for the Commonwealth of Pennsylvania shall retain jurisdiction of this matter. Dist: BY THE COURT: omUel L. Andes, Esquire, PO Box 168, Lemoyne, PA 17043 as F. Smith, 671 Dick Hayes Road, Scottsboro, AL 35769 Jo HEIDI E. DUNCAN, Plaintiff THOMAS F. SMITH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-834 CIVIL TERM 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 child who is the subject of this litigation is as follows: NAME Sarah Joan Smith DATE OF BIRTH November 15, 1991 CURRENTLY IN THE CUSTODY OF Mother 2. Mother filed a Complaint for Custody on February 26, 2004. A Custody Conciliation Conference was held on April 1, 2004. Present for the conference were: the Mother, Samuel L. Andes, Esquire; the Father, Thomas F. Smith, did not participate. 3. Plaintiffs counsel produced a return receipt green card indicating that service of the Complaint had been effected, and he will file a Return of Service with the Court. On Mamh 10, 2004, Plaintiff's counsel sent the Conference Order by regular mail to the same address at which the Complaint was served. Additionally, the Order scheduling the Custody Conciliation was sent by the Court to the same address. Mother represents that the child has resided in Pennsylvania for ten (10) years or more. Accordingly, jurisdiction in Pennsylvania is proper. 4. Upon Mother's request, and without objection or appearance from Father, the following Order is recommended to the Court. ~-~ Melissa Peel Greevy, Esquire Custody Conciliator :226477