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HomeMy WebLinkAbout04-1628DAVID W. LUTZ, MARTHA S. LUTZ, Plaintiff V. Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04- / (e ~ ~ CIVIL ACTION- LAW IN CUSTODY PLAINTWF'S COMPLAINT TO CONFIRM CUSTODY 1. Plaintiffis David W. Lutz, an adult individual currently residing at 1228 Dickinson Drive, Carlisle, Cumberland County, Pennsylvania. 2. Defendant is Martha S, Lutz, an adult individual currently residing at 1228 Dickinson Drive, Carlisle, Cumberland County, Pennsylvania. 3. Plaintiff seeks custody of the child, Emily J. Lutz, bom November 5, 1987. The child was not bom out of wedlock. Since the child's birth, the child has resided with the following persons at the following addresses for the following periods of time: The child has resided with the parties at the above address. 4. The relationship of the Plaintiff to the child is that of father. He is married. The Plaintiff currently resides with the following: Name Relationship Martha S. Lutz (Defendant) Wife Emily J. Lutz Daughter Defendant currently resides with the following: Name David W. Lutz (Plaintiff) Emily J. Lutz The relationship of the Defendant to the child is that of mother. She is married. The Relationship Husband Daughter 6. The parties participated in previous custody litigation regarding the child in this court at Docket Number 99-5926, but that matter was discontinued on October 25, 1999, due to the parties reconciliation. 7. The Plaintiff has no information of a custody proceeding concerning the child pending in any other court. 8. The best interest and permanent welfare of the child will be served by granting custody to Plaintiffbecanse: Defendant has advised Plaintiff that she wishes to separate and relocate to Vermont, and intends to take the child. The child's friends and family are in the Carlisle area. The child has no friends or family connection in Vermont. 9. Plaintiffdoes not know of any person not a party to these proceedings who claims to have custody or visitation rights with respect to the child. WHEREFORE, Plaintiffrequests your Honorable Court to set a time and place for a heating at which Plaintiff requests the Court to grant him the Custody Order. Pending said heating, Plaintiff requests temporary custody. MARTSON DEARDORFF WiLLIAMS & OTTO Date: By i Thomas J. Wi~/ams, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs VERIFICATION The foregoing Complaint for Custody is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the Complaint and to the extent that the document is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to thc penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if ! make knowingly false averments, I may be subject to criminal penalties. David W. Lutz ~/ DAVID W. LUTZ : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COL2qTY, PENNSYLVANIA V. : 04-1628 CIVIL ACTION LAW MARTHA S. LUTZ · ' IN CUSTODY DEFENDANT ORDER OF COURT AND NOW, Wednesday, April 21, 2004 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before l)awn S. Sunday, Esq. , the conciliator, at 39 West Main Street, Mechaniesburg, PA 17055 on Tuesday, May 25, 2004 at 10:30 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 ma',/also be present at the conference. Failure to apvear 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 I)rior to scheduled hearing. FOR THE COURT, By: /s/ Dawn S. Sunday; Esq. mhc 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 Assoc][ation 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 DAVID W. LUTZ, MARTHA S. LUTZ, Plaintiff V. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLANT) COUNTY, PENNSYLVANIA NO. 04-1628 CIVIL ACTION - LAW IN CUSTODY ACCEPTANCE OF SERVICE I, Ann Levin, Esquire, attorney for Defendant Martha S. Lutz in the above-captioned action, hereby accept service of the Plaintiff's Complaint to Confirm Custody in the above action on q~ ~ '7- ~9 ~ on her behalf and certify that I a~ authorized to do so. ' Ann Levin, Esquire 2917 North Front Street Harrisburg, PA 17110 Date CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Acceptance of Service was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepai.d, addressed as follows: Ann Levin, Esquire 2917 North Front Street Harrisburg, PA 17110 MARTSON DEARDORFF WILLIAMS & OTTO 'Tricia D. Eckenroa~ Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: May 7, 2004 ///May 21,2004 4:1! PM DAVID W. LUTZ, PLAINTIFF MARTHA LUTZ, DEFENDANT IN THE COURT OF COMMONS PLEAS CLIMBERLg2ND COUNTY, PENNSYLVANIA NO. 04-1628 CIVIL CIVIL ACTION - CUSTODY ANSWER AND COUNTERCLAIM TO Cus'roDY COMPLAINT AND NOW, comes the Defendant, by and through her counsel Smigel, Anderson & Sacks, and files this Answer to Complaint in Custody and Counterclaim and avers as follows: 1. Admitted, although the correct address is 1223, not 1228. 2. Denied. Defendant currently resides at 606 Magaro Road, Enola, Pennsylvania 17025. By way of further answer, Defendant will be relocating to her Vermont home in June 2004. 3. Admitted in part and denied in part. It is admitted that the child was not born out of wedlock. It is denied that the child continues to reside with both parties at 1223 Dickinson Drive, Carlisle, Cumberland County, Permsylvania. 4. Admitted in part and denied in part. It is admitted that the relationship of the Plaintiff to the child is that of father. It is admitted that Plaintiff and Defendant are married. It is denied that the Plaintiff currently resides with the Defendant or minor child. Defendant physically moved from the marital residence on April 14, 2004. The minor child began residing with Defendant on May 10, 2004. 5. Admitted in part and denied in part. It is admitted that the relationship of the Defendant to the minor child is Mother and that she is married to the Plaintiff. It is denied that the Defendant currently resides with the Plaintiff. Defendant currently resides with the minor child and Char Magaro, a friend, pending her move to Vermont. 6. Admitted. No response required. Denied. It is denied that it is in the child's best interest to grant Plaintiff primary 8. custody. 9. No response required. COUNTERCLAIM COMPLAINT FOR CUSTODY 10. Defendant/Plaintiff in Counterclaim, hereinafter "Mother," Martha Lutz, repeats and realleges the averments of paragraphs 1 through 9, which are incorporated by reference herein. 11. Mother resides at 606 Magaro Road, Enola, Canaberland County, Pennsylvania. 12. Plaintiff/Defendant in Counterclaim is David W. Lutz, hereinafter "Father," resides at 1223 Dickinson Lane, Carlisle, Cumberland County, Pennsylvania. 13. Mother seeks custody of the following child: Name Present Residence Age Emily Lutz 14. Mother. 606 Magaro Road, Enola PA 17025 16 The child was not bom out of wedlock. The child is presently in the custody of 15. During the past five (5) years, the child has resided with the following persons and at the following addresses: Persons Mother Father Mother and Father Addresses 606 Magaro Road, Enola, PA 17025 1223 Dickinson Road, Carlisle, PA 17013 1223 Dickinson Road, Carlisle, PA 17013 Dates 05/10/04 to present 04/14/04 to 05/09/04 birth to 04/13/04 16. The mother of the child is Martha Lutz. She is separated from the father of the child, David W. Lutz. 17. Mother currently resides with the following persons: Name Relationship Char Magaro Friend 18. Father currently resides alone. 19. The best interest and permanent welfare of the child will be served by granting the relief requested because: A. Mother is a fit parent. B. The minor child is 16 years old and will be 17 years old in November and has expressed a clear desire and intent to be in the custody of Mother in Vermont. C. Placing custody with Mother will provide continuity, stability and certainty to the child's life. 20. WHEREFORE, Defendant/Plaintiff in Counterclaim requests this Court to grant shared legal and primary physical custody of the child to her. Respectfully submitted, SMIGEL, ANDERSON & SACKS Le~oy Smigel, Esquire I.D.#: 09617 Ann V. Levin, Esquire I.D. #: 70259 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys far Defendant VERIFICATION I, Martha Lutz, verify that the statements contained in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unswom falsification to authorities. Oate: 7r/au :21; 900'4 ° DAVID W. LUTZ, PLAINTIFF/PETITIONER V. MARTHA LUTZ, DEFENDANT/RESPONDENT IN THE COURT OF COMMONS PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - CUSTODY CERTIFICATE OF SERVICE I, Ann V. Levin, Esquire, attorney for Defendant in the above referenced matter, do hereby certify that I have served a tree and correct copy of our Answer to Complaint in Custody and Counterclaim upon counsel for Plaintiff by depositing same in the U.S. Mail, first class, postage pre-paid on the ~[' ~ 3~day of May, 2004 addressed as follows: Thomas J. Williams, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 SMIGEL, ANDERSON & SACKS LeRoy Smigel, Esquire I.D. # 09617 Ann V. Levin, Esquire I.D. # 70259 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff DAVID W. LUTZ VS. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-1628 CIVIL ACTION LAW MARTHA S. LUTZ Defendant 1N CUSTODY ORDER OF COURT AND NOW, this */'~ day of _~/t,~ , 2004, upon consideration of the attached Custody Conciliation Report, J[t is ordered and directed as follows: 1. The Father, David W. Lutz, and the Mother, Martha S. Lutz, shall have shared legal custody of Emily J. Lutz, born November 5, 1987. Each parent shall have an equal right, to he exemised jointly with the other parent, to make all major non-emergency decisions tfffecting the Child's general well- being including, but not limited to, all decisions regarding her health, education and religion. Pursuant to the terms of this paragraph each parent shall be entitled to all records and information pertaining to the Child including, but not limited to, school and medical records and information. 2. The parties agree that the Mother shall have primary physical custody of the Child and may relocate with the Child to Vermont. At such time as the Child relocates to Vermont and begins the 2004-2005 school year, the Father shall have periods of partial physical custody and holiday custody as arranged by agreement between the parties. 3. Until the beginning of the 2004-2005 school year, the parties shall have physical custody of the Child in accordance with the following schedule: A. The Father shall have custody of the Child from May 25 through May 27, June 1 through June 3, June 8 through June 10, June 15, and from June 24 through a date selected by agreement of the parties between August 8 and August 15, depending on the scheduling of the Father's vacation. B. The Mother shall have custody of the Child from May 28 through May 31, June 4 through June 7, June 11 through June 14, and from June 16 through June 23. Thereafter, the Mother shall have custody beginning on a date selected by agreement of the parties between August 8 and August 15, when the Mother takes the child to Vermont to begin school. ~O :gl I'l!~~ ~- i,',fl? 4. Counsel for either party may contact the Conciliator to schedule an additional custody conciliation conference at the end of the Child's first seme. ster of school in Vermont to review the custody arrangements based upon the Child's adjustment to the relocation. 5. 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, CC: Thomas J. Williams, Esquire - Counsel for Father Ann V. Levin, Esquire - Counsel for Mother DAVID W. LUTZ Plaintiff VS. MARTHA S. LUTZ Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-1628 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 Emily J. Lutz DATE OF BIRTH November 5, 1987 CURRENTLY IN CUSTODY OF MOTHER 2. A Conciliation Conference was held on May 25, 2004, with the following individuals in attendance: The Father, David W. Lutz, with his counsel, Thomas J. Williams, Esquire, and the Mother, Martha S. Lutz, with her counsel, Ann V. Levin, Esquire. 3. The parties agreed to entry of an Order in the form as attached. Da~-~S. Sunday, Esquire Custody Conciliator