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HomeMy WebLinkAbout08-6253GINA K. DRAGOVICH : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. :NO. Off 6253 C&;a `7Z., TROY N. DRAGOVICH : CIVIL ACTION - LAW Defendant : CUSTODY COMPLAINT AND NOW, comes Plaintiff, Gina K. Dragovich, by and through her attorney, James W. Abraham, Esquire, Abraham Law Offices, Hummelstown, Pennsylvania, and files the following: 1. Plaintiff, Gina K. Dragovich (hereinafter "Mother") is an adult individual who resides at 1910 Enfield Street, Camp Hill, Cumberland County, Pennsylvania. 2. Defendant, Troy N. Dragovich (hereinafter "Father") is an adult individual who resides at 206 Wertz Avenue, Mechanicsburg, Cumberland County, Pennsylvania. 3. Father and Mother are the natural parents of the following children: Nicholas Patrick Dragovich, born December 1, 1997 (age 10), Kayla Jean Dragovich, born March 5, 2000 (age 8) and Cassie Lynn Dragovich, born June 5, 2001 (age 7). 4. The children have resided with the following persons at the following locations for the past five (5) years: A. From October, 2003 through March, 2007 with Mother and Father in Camp Hill, Pennsylvania. B. From March, 2007 through the present with Mother in Camp Hill, Pennsylvania. 5. Mother has not participated as a party or witness, or in any other capacity, in any other litigation regarding the custody of the children in this or any other court. 6. Mother does not know of any person not a party to the proceedings who has physical custody of the children or claims to have custodial or visitation rights with respect to the children. 7. The best interests and permanent welfare of the children will be served by granting Mother and Father shared legal custody as to all major decisions regarding the children's general health, education and welfare. 8. The children have been in the primary physical custody of Mother for over one and a half (1 '/z) years since the parties' physical separation in March, 2007 and Mother submits that it is in the bests interests of the children to maintain Mother's primary physical custody of the children and to grant Mother primary physical custody in that: A. Since the parties' separation in March, 2007 and for over one and a half (1 `/z) years, Mother has been the primary physical custodian of the children; B. Since the parties' separation in March, 2007 and for over one and a half (1 '/z) years, Father's partial custody has been every other weekend visitation from Friday evening through Sunday evening, with two (2) overnights during each week. C. Prior to the parties separation in March, 2007 and throughout the children's entire lives, Mother was the primary caretaker of the children and was a "stay at home Mom" during the entire marriage. D. Mother has provided and can provide a more stable and secure family environment for the children as compared to Father. E. Mother has primarily and/or exclusively provided all of the children's educational needs throughout their school years as to school work, school projects, preparing for tests, monitoring their grades and academics, attending teacher conferences and activities and has been primarily and/or exclusively responsible for the children's academic success in school in which all three (3) children are above-average students and usually receive "A's and B's" on their report cards. 9. It is Mother's intention to relocate approximately two (2) hours (driving time) from her current residence in Camp Hill, Pennsylvania to Manassas, Virginia, located in northern Virginia, for numerous reasons, including but not limited to, A. Mother has had financial difficulties, including but not limited to, Father's failure to make his alimony payments of Five Hundred ($504.00) Dollars per month and/or to timely make his alimony payments in accordance with their divorce. B. Mother has work experience in day care and will have better opportunities for employment if she relocates which will directly benefit the children; C. Mother pays rent at her current residence of over One Thousand ($1,000.00) Dollars per month and by relocating, Mother will be able to move in with her fiancee and not have a rent payment and significantly reduce her cost of living which will directly benefit the children. D. Mother's proposed relocation is only two (2) hours (driving time) from her current residence and there is no difference with this relocation to northern Virginia than a relocation to Scranton, Pennsylvania in Lackawanna County, which is also two (2) hours away (driving time). E. Father's all year, every other weekend visitation schedule can be maintained as the parties can exchange the children at a half-way point between their residences. F. Father's two (2) overnight visitations each week can be easily compensated for by: 1) week-on, week-off custody in the summer exchanging every Sunday at a half- way point; 2) expanded weekends during the school year if the children have a Friday or Monday off from school; 3) additional time during the school holidays, e.g., Christmas through New Years; 4) daily e-mail and telephone contact during the school year. G. The public school district in Manassas, Virginia which the children would attend is rated as high or higher academically than the Camp Hill School District where the children currently attend school. H. Mother is planning to re-marry in June, 2009 and the children have a great relationship with Mother's fiancee and Mother's marriage will provide family stability for the children and a stable family environment, particularly in comparison to Father who has had several relationships since separation, none of which have been permanent. I. The residence of Mother's fiancee provides better living accommodations for the children as compared to Mother or Father's current residence. J. Father has demonstrated neglectful behavior as to the children as Father was providing medical insurance for the children pursuant to the child support order, however, Father knowingly allowed the medical coverage to terminate as of July 31, 2008 and never advised Mother that the children were uninsured, as Mother discovered the lack of insurance coverage from a medical provider in mid-October, 2008. K. Mother's fiancee is retired military and his medical plan covers step-children and the children can be insured through said medical plan once Mother re-marries and if Mother has primary physical custody of the children. WHEREFORE, Plaintiff, Gina K. Dragovich, respectfully requests Your Honorable Court to enter an Order granting Father and Mother shared legal custody and granting Mother primary physical custody and granting Mother permission to relocate to northern Virginia with the children as their primary physical custodian; and by granting Father partial custody/visitation as stated in Paragraph 9 herein, as well as any other relief the Court may deem proper. Respectfully submitted: James W. Abraham, Esq. Abraham Law Offices 45 East Main Street Hummelstown, PA 17036 (717) 566-9380 Attorney for Plaintiff, DATE: Gina K. Dragovich 11 6?('v 4- K,, ? "j66 v i ,the undersigned, hereby verify and confirm that the foregoing document and the statements made therein are true and. cornet to the lest of my lamowledge, information and belief. I further understand that any -false staftm mb made, hemin=are subject to the penalties of Title 18 Pa.C.S.A. Section 4904 relating to-unsworn falsification to authorities. DATE' 10 -tea -O 1 CERTIFICATE OF SERVICE I, James W. Abraham, Esquire, the undersigned, hereby certify that I have served a true and correct copy of the foregoing document by certified mail upon the following person(s) at the following address on the date stated below: Troy N. Dragovich 206 Wertz Avenue Mechanicsburg, PA 17055 DATE: 10 -.Z(--0 9 James W. Abraham, Esquire r-? Cf 5..j ? r t, ": ? 3Tr, GINA K. DRAGOVICH IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. 2008-6253 CIVIL ACTION LAW TROY N. DRAGOVICH IN CUSTODY DEFENDANT ORDER OF COURT AND NOW, Wednesday, October 29, 2008 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before John J. Mangan, Jr., Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Tuesday, December 02, 2008 at 2:30 PM 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/ ohn . Mangan, r. 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 6S ?? ? OE .??0 8001 30- O£'- C;' 5c7- ac, al ,?.V©- t£? ©/ GINA K. DRAGOVICH, PLAINTIFF VS. TROY N. DRAGOVICH, DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-6253 CIVIL ACTION -LAW IN CUSTODY ANSWER TO PLAINTIFF'S CUSTODY COMPLAINT and NEW MATTER AND NOW, comes the Defendant, TROY N. DRAGOVICH, by his counsel, Susan Kay Candiello, Esquire, of the Law Firm of Susan Kay Candiello, P.C., and files this Answer to the Plaintiff, GINA K. DRAGOVICH'S Custody Complaint, and in support thereof asserts as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part, But, by way of further explanation, although the Mother's residence is considered the children's primary residence for purposes of school registration, Father is very involved with his children and has almost daily contact with his children. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied. Defendant, Father, has always been an integral part of his children's lives. Although Plaintiff, Mother had the children at her home for more overnights, (in actuality only four (4) more overnights per month than Defendant, Father), Father is involved in his children's lives on a daily basis. It is not in the children's best interest to be separated from their Father the Defendant, who have a very close relationship with. A. Denied. Plaintiff, Mother has had more overnights with the children than Defendant, Father, (four (4) additional overnights per month), but Father continues to be involved with his children on a daily basis. B. Denied. The schedule stated by Plaintiff, Mother is generally what has been followed, although Defendant, Father has often had the children for additional times. The parties have cooperated in caring for the children in a healthy, positive manner, which has attributed to the healthy way the children have adapted to their parents' divorce. The schedule as stated by Plaintiff, Mother gives her only four (4) more nights a month with the children than Defendant, Father. Four (4) nights are not significant, in light of the daily contact the Defendant, Father has with his children. C. Denied. Although Plaintiff, Mother only worked part-time and Defendant, Father worked full time to support Mother and the children, Father has always been deeply and daily involved in his children's lives. D. Denied. Mother does not have the financial income to provide for the children. Father has the financial ability to provide his children with a safe and secure environment and Father has deep love for his children and the nurturing ability to provide a healthy emotional environment for his children. E. Denied. Plaintiff, Mother has never been the primary or exclusive provider for all children's educational needs. Father has and continues to be integral and deeply involved in the everyday educational needs and activities of his children. 9. Defendant does not have sufficient knowledge as to determine the truth of this statement. A. Admitted in part and Denied in part. Defendant, Father lost his job through no fault of his own, when his company was making cutbacks. Defendant, Father was temporarily unable to pay alimony and with Plaintiff, Mother agreed Defendant, Father could discontinue alimony payments, although Defendant, Father has always continued to pay child support. B. Denied. Day Care opportunities are equally in Pennsylvania as in Virginia. C. Denied. Simply getting married so Plaintiff, Mother has someone else to pay her bills is not in the best interest of the children, if in doing so Plaintiff, Mother causes the children's close relationship and daily interactions with their Father to end. D. Denied. The important issue is not the location where Plaintiff, Mother is moving to, but the fact that if Plaintiff, Mother moves two (2) hours away in any direction, Defendant, Father will lose his ability to have daily, regular interaction with his children. Defendant, Father will not be able to be involved with his children during the week, assist them with their homework, be involved and attend their school and extracurricular activities, be there to say their prayers with them, tuck them in at night, offer support when they are experiencing a difficult time in their lives and when worried, be able to look in on them while they are sleeping to reassure himself as any parent does that they are "OK". E. Denied. If Plaintiff, Mother makes the decision to move, Plaintiff, Mother should provide all transportation, absent Defendant, Father's agreement to share transportation. F. Denied. None of these things adequately compensates Defendant, Father for not being able to be involved with his children during the week, being there during the difficult times, being able to assist them with their homework, offer "words of wisdom", being involved and attending their school and extracurricular activities, being there to say their prayers with them, tucking them in at night, when they are ill doing those extra checks during the night. Although, parents must sometimes give up the ability to be with their children, this is not one of those times. G. Denied. The Camp Hill school district is a highly rated educational provider. The real issue is not the numbers on a school, but where the children are doing well and are happy. Camp Hill School District has gone out of their way to create and establish educational programs directed to these children's specific needs. The children are doing well. The real issue is what is in the best interests of the children. H. Denied. The most important issue is the love and interactions the children have with the Plaintiff, Mother and the Defendant, Father. Defendant, Father cannot be replaced by any third party. Simply because Plaintiff, Mother has found another spouse before Defendant, Father has found another spouse, does not give Plaintiff, Mother more stability than Defendant, Father. 1. Denied. By way of further explanation, Defendant, Father allowed Plaintiff, Mother and his children to remain in the marital residence following the parties' divorce, out of his great love and concern for his children. Defendant, Father resides in a residence in which the children are safe and comfortable, the "degree of betterness" has nothing to do with an environment where the children are loved. J. Denied. By way of further explanation, Defendant, Father has never been neglectful of his children in any manner. When Defendant, Father's employer for business reasons, ended Father's employment, Father thought the payment for the children's health insurance coverage was being automatically deducted from his bank account. When Plaintiff, Mother went to use the health insurance, she discovered the children did not have any health insurance. Defendant, Father when learning of this, immediately took action to get health insurance coverage for the children. K. Denied. By way of further explanation, Defendant, Father currently has good health insurance coverage for his children. NEW MATTER 10. Paragraphs 1 through 9 of this Answer are incorporated herein by reference thereto. 11. The parties' son, Nicholas, has been diagnosed with Pervasive Development Disorder under the umbrella of autism. Camp Hill School District from Nicholas's first day in school has actively implemented a program specifically designed for Nicholas. Nicholas participates in occupational and speech therapy. With the special program designed and implemented by the teachers at Camp Hill School District Nicholas has been able to remain with his classmates, decreasing or eliminating any feelings of being different. Nicholas loves his school and is doing well in his classes. Nicholas has demonstrated progress in the program provided by Camp Hill School District. Defendant, Father has been closely involved in his children's school activities and school work. Recently, Defendant, Father assisted his son with a 1 %z month school project. At his son's request Defendant, Father was the primary parent to work at least 25 hours on this project. For Nicholas to move into a new school, new home, new program, new teachers, new children, need to make new friends, new professionals, to essentially have to begin from the beginning and perhaps most importantly lose the close assistance and daily interaction with his Father would be devastating to Nicholas. Nicholas's progress would be halted, possibly stopped or even reversed, this is simply not in Nicholas's best interest nor is it acceptable to Defendant, Father. 26. Defendant, entered into a marital settlement agreement without the advice of counsel, thus signing an agreement to pay far more alimony for a far longer period of time than is typically provided for. Plaintiff agreed Defendant could stop making alimony payments. 27. Plaintiff, Mother, has an Associates Degree. Prior to having children, Plaintiff, Mother was employed full time as an Assistant Manager for J.C. Penny Co. Plaintiff, Mother wants to be a "stay at home mom", but the children are in school all day, Monday through Friday. Plaintiff, Mother, has created her own financial hardship, by refusing to return to full time employment, which she is qualified for. After leaving her full time employment, Plaintiff, Mother kept a part-time employment position with J.C. Penny. However, this entailed working every other weekend when the children were with Father. Plainiff, Mother, quit even her part- time job with J.C. Penny, to free her time and weekends to be with her fiance. Now, Plaintiff, Mother watches some children in her home. Plaintiff, Mother in searching for a way to reduce her financial obligations, not work at any job and remain a "stay at home mother" has found a new husband to pay her bills. The children do not suffer from any lack of food, clothing, toys, books, sports equipment, etc. etc. the children are not suffering from any lack of financial support. None of finding someone else to pay the bills is in the children's best interests, if they lose all that they have here with their Father. Mother's actions are only in her best interest. 28. The ability to have their Father in their lives on a daily basis is not at all the same as writing emails and talking on the telephone. Defendant, Father has coached his son's soccer team and assists as a coach for his daughter's soccer teams. Defendant, Father is active in his children's activities, both games and practices. The fact their Father is "there" at their practice or their games or any other activity the children are involved in is extremely important to the children. Children love it and are very proud when their parents attend their activities and events; having that loving support, builds self-confidence in children. Defendant, Father often visits the children's school to have lunch with them or take them out to lunch. Moving the children two (2) hours, or more in bad weather or bad traffic, will take away Defendant's ability to have lunches, attend school conferences and events, be involved in coaching, be at practices and games during the week and on some weekends. Moving the children away, although Mother wants to minimize the distance, will have a significant impact upon Defendant, Father's ability to be a part of his children's lives. The children's best interests have not been considered by Plaintiff, Mother. Plaintiff is only considering what is in her best interests. 29. Defendant, has been equally as integral part of his children's educational lives as the Plaintiff. Defendant has the children almost as many school nights as the Plaintiff working with the children on their school projects, homework and studying. Defendant attends all school conferences and works closely with the children's teachers. The fact both of the children's parents work with and support their children's education, enables the children to do so well in school. 30. Defendant is the store manager of the Office Max in Carlisle. Defendant in his position is able to provide health insurance for the children. Defendant primarily works Monday through Friday, during the days. Defendant works every other weekend, when Mother would have the children. Defendant has flexibility in his work hours, so he would be able to provide emergency care for the children as needed. 31. The goal of Plaintiff and Defendant in their divorce was to have the least impact upon their children as possible. Defendant left Plaintiff and the children remain in the marital residence. Defendant gives the Plaintiff as much income as he is able to attempt to enable the Plaintiff to work only part-time. Defendant participates with the children in their everyday, school and extracurricular activities. Defendant believes because he and the Plaintiff have worked together to support and love their children, their children have done well in all areas through the stress of the divorce. Now, Mother wants to drastically change the children's world and support system, for her best interests. WHEREFORE, Defendant, TROY N. DRAGOVICH, respectfully requests that this Honorable Court grant Defendant, TROY N. DRAGOVICH and Plaintiff, GINA K. DRAGOVICH, Shared Legal Custody and Defendant, TROY N. DRAGOVICH, Primary Physical Custody and Plaintiff, GINA K. DRAGOVICH, Partial Physical Custody of the parties' minor children, NICHOLAS PATRICK DRAGOVICH, KAYLA JEAN DRAGOVICH and CASSIE LYNN DRAGOVICH. Respectfully submitted, LAW FIRM OF SUSAN KAY CANDIELLO, P.C. Dated: November 11' , 2008 Susan Kay Candiel Counsel for Defen wt PA I.D. # 64998 4010 Glenfmnan P e Mechanicsburg PA 17055 (717) 724-2278 VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing document are true and correct to the best of his knowledge, information, and belief. This verification is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. DATED: /l `7I a `6 TROY N CHOLAS DRAGOVICH I %-, GINA K. DRAGOVICH IN THE COURT OF COMMON PLEAS Plaintiff CUMBE AND COUNTY, PENNSYLVANIA V. : No. 0846253 Civil Term TROY N. DRAGOVICH Defendant : ACTION IlN CUSTODY COURT ORDER AND NOW, this 10k% day of December 2008, upon consideration of the attached Custody Conciliation Report, it is ordered and directed that: This Order is. entered pursuant to a Custqdy Con Hearing is hereby scheduled on the J da3 43'.0-0. am/ in Courtroom number in tl Common Pleas, Carlisle, PA 17013 at which tirr regard to the physical custody for the subject Ch be whether it is in the Children's best interest to For purposes of this hearing, the Mother shall be and shall proceed initially with testimony. Cour the Court and opposing counsel a Memorandum on custody, a list of witnesses who will be expec summary of the anticipated testimony of each w be filed at least five days prior to the hearing dat 2. Legal custody: The Mother, Gina Dragovich, aj shall have shared legal custody of Nicholas Patr Kayla Jean Dragovich, born 03/05/2000 and Ca 06/05/2001. The parties shall have an equal rig] emergency decisions affecting the Children's ge not limited to, all decisions regarding their healt Pursuant to the terms of 23 Pa.C.S. §5309, each records and information pertaining to the Childr medical, dental, religious or school records, the and of the other parent. To the extent one paren records or information, that parent shall be requ thereof, with the other parent within such reasor and information of reasonable use to the other n 3. Physical Custody: Mother and Father shall array Children as follows: a. Father shall have physical custod, and Thursday from 5:00 pm until the Children to school. -iliation Conference. A Custody of La, 2009 at Cumberland County Court of - testimony will be taken in ldren, with the primary focus to elocate to Virginia with Mother. deemed to be the moving party >el for each parry shall file with >etting forth each party's position ed to testify at the hearing and a ness. These Memoranda shall i the Father, Troy Dragovich ;k Dragovich, born 12/01/1997, pie Lynn Dragovich, born to make all major non- teral well-being including, but , education and religion. iarent shall be entitled to all n including, but not limited to, esidence address of the Children has possession of any such ed to share the same, or copies ible time as to make the records physical custody of the of the Children every Tuesday he following morning, taking 7.. 1 1 (1 ? 9 0 :1 g J L 1 231 BDQZ r .- b. Father shall have physical custodf of the Children on alternating weekends from Friday 5:00 pm til Sunday evening between 6:00 pm and 7:00 pm. Mother and Father shall arrange at such other times as the parties 4. The non-custodial parent shall have liberal a reasonable basis. 5. Holidays: The parents shall arrange a holiday sc the absence of agreement, for Christmas 2008, F and Mother shall have Christmas Day. 6. Neither party may say or do anything nor permi anything that may estrange the Children from th of the Children as to the other party, or may har development of the Children's love or affection possible, both parties shall not allow third partic the presence of the Children. ical custody of the Children mutually agree. contact with the Children on e as mutually agreed. In shall have Christmas Eve a third party to do or say other party, or injure the opinion )er the free and natural )r the other party. To the extent to disparage the other parent in 7. In the event of a medical emergency, the custodip party shall notify the other parties as soon as possible after the emergency i handled. 8. During any periods of custody or visitation, the arties shall not possess or use controlled substances or consumelbe under the i uence of alcoholic beverages to the point of intoxication. The parties shall like se assure, to the extent possible, that other household members and/or house gue s comply with this provision. 9. The parties may modify this Order by mutual absence of mutual consent, the terms of this ( istribution: san Candiello, Esq. James Abraham, Esq., 45 East Main Street, H John J. Mangan, Esq. ;ment in writing. In the shall control. BY THE COURT, PA 17036 GINA K. DRAGOVICH Plaintiff V. TROY N. DRAGOVICH Defendant IN THE COURT OF COMMON PLEAS CUMBE ,AND COUNTY, PENNSYLVANIA No. 08-6253 Civil Term ACTION CUSTODY IN ACCORDANCE WITH THE CUMBERL) PROCEDURE 1915.3-8(B), the undersigned Custody report: 1. The pertinent information pertaining to the litigation is as follows: Name Date of Birth Nicholas Patrick Dragovich 12/01/1997 Kayla Jean Dragovich 03/05/2000 Cassie Lynn Dragovich 06/05/2001 2. A Conciliation Conference was held on De following individuals participating: The Mother, Gina Dragovich, with her counsel, The Father, Troy Dragovich, with his counsel, '. 3. Mother's position on custody is as follows: I the Children's lives and both parties acknowl situation has worked well for the most part. 1 be married and desires to move with the Chili Mother plans on being married in early sump to finish their school year here. Mother asser benefit to her moving to Virginia and that the excellent. Mother maintains that she desires 1 hours away and that Father will have ample o about as much as he sees them now. Mother the concept of Father having a significant por Children. Mother asserts that she is willing t( over the holidays as well. 4. Father's position on custody is as follows: B the Children's lives and both parties acknow] situation has worked well for the most part. ] the Children's extra-curricular activities as w Children moving to Virginia. Father maintai: COUNTY CIVIL RULE OF ;iliator submits the following who are the subject of this Currently in the Custody of Mother and Father Mother and Father Mother and Father 02, 2008 with the s Abraham, Esq. Candiello, Esq. )th parents are very involved in dge that the current custody owever, Mother is engaged to -en to Virginia with her fiancd. ;r 2009 and wants the Children that there will be an economic chool district in VA is move approximately two portunity to see the Children tys that she would be open to on of the summer with the let Father have significant time i parents are very involved in ge that the current custody th parents are very involved in . Father objects to the that the Children are doing well in school and that the Children have n some emotional issues that are being addre support system in place to assist. Father r adjusted and do not desire to relocate. Fatl frequent basis, not just for a significant por alternating weekends, especially due to the activities on the weekends and he does not said activities. Father would prefer the Chi Pennsylvania. y friends here. Nicholas has d and that his school has a ntains that the Children are well desires to see his Children on a .1 over the summer and on A that the Children have nt to deprive the Children of en to remain here in The Conciliator recommends an Order in the form as attached scheduling a Hearing and entering an Order of Court reg ding custody as outlined. It is the Conciliator's belief that this would be in e Children's best interest. It is expected that the Hearing will require one day. 6. The proposed recommended Order may cont 'n a requirement that the parties file a pre-trial memorandum with the Judge t whom the matter has been assigned. Date: ?0(G ABRAHAM LAW OFFICES 45 East Main Street. Hummelstown. PA 17036 (717) 566-9380 GINA K. DRAGOVICH Plaintiff V. TROY N. DRAGOVICH Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA :NO. 2008 - 6253 : CIVIL ACTION - LAW :CUSTODY PLAINTIFF'S ANSWER TO NEW MATTER AND NOW, comes Plaintiff, Gina K. Dragovich, by and through her attorney, James W. Abraham, Esquire, Abraham Law Offices, Hummelstown, Pennsylvania, and files the following: 10. Paragraph 10 is an incorporation paragraph to which no response is required. 11. Admitted an Denied. It is admitted that Nicholas has special needs. It is denied that Father has been closely involved to any degree compared to Mother and it is further denied that Nicholas will not continue to improve in a new school district. The remaining averments are denied as stated in the Complaint which is incorporated herein by referenced. action. By way of further answer, Father has only ever been remotely involved in the children's school work or projects until Plaintiff filed her custody action herein. 26. Denied. It is denied that Plaintiff ever agreed that Defendant was no longer responsible to make his mandatory alimony payments. 27. Denied. It is denied that Plaintiff created her own financial hardship in any manner as the parties agreed that they never wanted to have their children in daycare with a third party. By way of further answer, Mother is not getting married so someone else can pay her bills and getting married will continue to provide the children with a safe and secure family environment, which Defendant has not or cannot do. 28. Denied. It is denied that Father will not continue with on ongoing relationship with his children if the relocation is granted as stated in the Complaint, which is incorporated herein by reference. 29. Denied. It is denied that Defendant has been equally involved with the children as Defendant has never asked for more time with the children since separation and has never even take the standard two (2) weeks in the summer with the children; and Defendant has only occasionally been involved in the children's schooling as stated in the Complaint which is incorporated herein by refernece.. 30. Admitted and Denied. It is admitted that Defendant works at Officemax. The remaining averments are denied in that Plaintiff does not know what Defendant's capabilities are in case of an emergency with the children. 31. Denied. The goal of Plaintiff and Defendant has always been what is in the children's best interests, not what is in Defendant's best interests and the Plaintiff submits that Defendant objects to Plaintiff relocating because it is not in Defendant's best interests because it will inconvenience Defendant. It is further denied that the children's lives will be drastically changed as the children will remain with their primary caretaker with Plaintiff and Defendant will continue to have an ongoing relationship with the children. WHEREFORE, Plaintif respectfully requests Your Honorable Court to dismiss Defendant's New Matter and grant the relief requested in the Complaint. Respectfully sub 'tted: f James W. Abraham, Esquire Abraham Law Offices 45 East Main Street Hummelstown, PA 17036 (717) 566-9380 Attorney for Plaintiff, Gina K. Dragovich DATE: 4/1/09 :] Ct AMCATION 6V t C 1 ?- , the undersigned, hereby verify and confirm that the foregoing document and the statements made therein are true and -correct to the treat of ;my kmowledge, information and belief. I further understand that any a Amends .} i.n=am subject to the penalties of Title 18 Pa.C.S.A. Section 4904 relating to-uraworn falsification to authorities. DATE: CERTIFICATE OF SERVICE I, James W. Abraham, Esquire, the undersigned, hereby certify that I have served a true and correct copy of the foregoing document by first class mail and/or hand delivery on the following person(s) at the following address(es) on the date stated below: Susan Kay Candiello, Esquire 4010 Glenfinnan Place Mechanicsburg, PA 17055 DATE: 4/ 1 /09 James W. Abraham, Esquire ." ' ? +.. j ??? ? ? ,r' ?: C .? '"C..,C. ? r? ?? w ? ryry? ?? tea? ? ?"? 'ti L? "' ? ? ;'.ta IN THE COURT OF COMMON PLEAS OF GINA K. DRAGOVICH, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. TROY N. DRAGOVICH, Defendant NO. 08-6253 CIVIL TERM ORDER OF COURT AND NOW, this 10th day of July, 2009, after consideration of Plaintiffs Complaint requesting primary custody and permission to relocate, IT IS HEREBY ORDERED that: 1. Plaintiff shall have primary physical custody of the children. 2. Plaintiff shall be permitted to relocate to Virginia with her husband. 3. The parties shall have shared legal custody. 4. On or before August 14, 2009, the parties shall submit to the Court a proposed detailed order addressing physical custody pursuant to the following general court- required provisions: a.) Father shall have physical custody every other weekend, and this shall include the three-day holiday weekends (e.g. Martin Luther King Day, President's Day, etc.) b.) A major holiday schedule which divides the major holidays equally for Thanksgiving, Christmas, and Easter. c.) Father shall have custody of the children during the summer school recess subject to Mother having two weeks vacation time with proper prior notice. d.) The custody exchange point shall be in Thurmont, Maryland. By the Court, M. L. Ebert, Jr., J. /James W. Abraham, Esquire Abraham Law Offices 45 East Main Street Hummelstown, PA 17036 717-566-9380 Attorney for Plaintiff san Kay Candiello, Esquire 4010 Glenfinnan Place Mechanicsburg, PA 17055 717-724-2278 Attorney for Defendant (20 p f4 /hat, -1011/1 0/?T 2 IN THE COURT OF COMMON PLEAS OF GINA K. DRAGOVICH, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. TROY N. DRAGOVICH, Defendant NO. 08-6253 CIVIL TERM OPINION AND ORDER OF COURT EBERT, J., July 10, 2009 - In this custody case, Plaintiff, Gina K. Dragovich ("Mother"), and Defendant, Troy N. Dragovich ("Father"), each seek primary physical custody of their three children. Mother has also requested permission to relocate to Virginia with her children. Father contests relocation and seeks primary physical custody so that the children can remain living in Cumberland County and so that they can remain in the Camp Hill school district. STATEMENT OF FACTS Mother resides at 1910 Enfield Street, Camp Hill, Pennsylvania. Father resides at 206 Wertz Avenue, Mechanicsburg, Pennsylvania. Mother and Father separated in March 2007.1 The parties' divorce was finalized on December 18, 2007. The parties share legal custody of their three children, Nicholas Patrick Dragovich ("Cole"), born 12/01/1997, Kayla Jean Dragovich, born 03/05/2000, and Cassie Lynn Dragovich, born 06/05/2001.2 While Father has been very involved and has had much contact with the children, Mother is considered to be the primary caregiver. Mother plans to marry John Randall Knaub ("J.R.")3, who resides in 1 Transcript, Apr. 1, 2009, p. 6. (hereinafter Tr. at 2 Court Order, Dec. 15, 2008, ¶ 2. 3 The wedding was planned for June, 2009. 3 Manassas, Virginia4 and wants to relocate to Virginia with the children.5 Mother seeks primary physical custody and wants to let Father continue to have generous visitation privileges accommodated by meeting approximately halfway between Pennsylvania and Virginia to- exchange the children.6 Thurmont, Maryland, is approximately 53 miles from Father's home in Mechanicsburg, Pennsylvania. Mother was a stay-at-home mother throughout the marriage and occasionally worked part-time. Mother currently works from her home as a day care provider and provides day care for three children in addition to her own children.8 Father has been employed at Office Max in Carlisle, Pennsylvania since October, 2008, and is currently the store manager there.9 He was unemployed from February through October 2008.10 Father's annual salary is approximately $62,000.11 Mother's fiance is retired from the Coast Guard and currently works for the Department of Homeland Security Coast Guard Investigative Services. 12 He will not be able to find a comparable job in the Camp Hill area. 13 His annual income, which includes the salary from his civilian job and his Coast Guard pension, is approximately $120,000.14 Mother has no extended family in Camp Hill' 5, and Father only has a brother who lives in the area. 16 All other extended family are located two to three hours away. 4 Tr. at 44. 5 Compl. at ¶ 9, filed Oct. 21, 2008. 6 Tr. at 50. Tr. at 5. s Tr. at 4. 9 Tr. at 62. 10 Tr. At 62-63. i Tr. at 115. 12 Tr. at 30. 13 Tr. At 52-53. la Tr. at 30. u Tr. at 37. 16 Tr. at 84. 4 All three children were questioned about which parent they would prefer to live with. Cole, eleven years old, said that he would like to "take turns at houses" and spend one week with mom and one week with dad. 17 When asked again to choose one or the other, he said he would rather live with his dad, because he wants to stay here and his dad lives here. Kayla, nine years old, says she would rather live with her mom. When asked why, she replied "I just took a random guess".' 8 She also said she wouldn't want to change schools. Kayla said that it was okay with her to see her friends on the weekends if she did indeed move to Virginia. Cassie, eight years old, first said she didn't know who she would rather live with. When asked again, she said her dad. When asked why, she said it was because she has "two dogs there and a hamster there."19 She also said that she didn't want to go to a different school. There is no question that Father has been significantly involved in the children's lives. But it is clear that Mother has been the primary caregiver, both during the marriage and since the separation. Father has never taken care of the children full-time since the separation, and has never had them for more than an extended weekend.20 Until Mother planned to relocate, Father never asked for primary custody.21 Cole has educational developmental delays and has received speech and occupational therapy. 22 Mother was primarily involved with Cole's therapy, and Father rarely participated in therapy sessions. PROCEDURAL HISTORY Mother and Father separated in March 2007. The parties' divorce was finalized on December 18, 2007. On October 21, 2008, Mother filed a Complaint requesting 1) shared legal Tr. at 120. 's Tr. at 124. 19 Tr. at 128. 20 Tr. at 13. 21 Tr. at 14. 22 Tr. at 8. custody, 2) primary physical custody, 3) permission to relocate to northern Virginia, and 4) partial custody and visitation rights for Father including maintaining his year-round alternate weekend visitation schedule and giving him alternate weeks during the summer. On November 24, 2008, Father filed an Answer to Plaintiff's Custody Complaint and New Matter requesting shared legal custody and primary physical custody of the children. A Custody Conference was held on December 2, 2008. On December 15, 2008, this Court issued an Order granting shared legal and physical custody of the children, and specifying terms for physical custody. A hearing was scheduled for April 1, 2009 for the Court to rule on physical custody of the children and to consider the relocation request from Plaintiff to move to Virginia with her children. DISCUSSION A. Standard of Review -Custody and Relocation The paramount concern in a child custody case is the best interests of the child, based on a consideration of all factors that legitimately affect the child's physical, intellectual, moral and spiritual well-being. Swope v. Swope, 689 A.2d 264, 265 (Pa. Super. 1997) (quoting E.A.L. v. L.J. W., 662 A.2d 1109, 1112 (Pa. Super. 1995)). Relocation requests present unique questions and require special consideration. The Pennsylvania Superior Court acknowledges that the best interests of the child must be preserved, but also recognizes that divorced parents must be free to live their own lives. As the Court stated in Gruber: Adjustments and accommodations must be made as a result of the divorce, the whole point of which was to permit each parent to go his or her own way. Within reason, both parties must be permitted to do so, and the child's best interests must be served within that context. Gruber v. Gruber, 583 A.2d 434, 437-438 (Pa. Super. 1990) (quoting Helentjaris v. Sudano, 476 A.2d 828, 833 (N.J. Super. Ct. App. Div. 1984)). 6 Gruber provides specific factors to consider when evaluating relocation requests that will affect children. Gruber, 583 A.2d 434. The Pennsylvania Superior Court has consistently ruled that courts must incorporate the Gruber factors when determining the best interests of the children. Hogrelius v. Martin, 950 A.2d 345 (Pa. Super. 2008). Those factors include: (1) the potential advantages 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 custodial and noncustodial parent in either seeking the move or seeking to prevent it; [and] (3) the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. Id. (citing Klos v. Klos, 934 A.2d 724, 728 (Pa. Super. 2007). Incorporating these factors in reviewing the present request for relocation, we find that the best interests of the children are served by approving Mother's proposed move and awarding Mother primary physical custody. The proposed move has significant economic and quality of life improvements for Mother, the custodial parent in this case, and it is clear that the move is not a "momentary whim" on Mother's part. She has been dating J.R. since October 2007, and out of concern for her children, she did not introduce him to her children until January 2008. She appears to have considered the decision seriously, and while it does benefit her, she clearly considered her children when making the decision. In considering the motives of each parent, we find that while Mother does want to move to be with her new husband, she also believes that this will provide the best life for her and her children. Father contests the proposed move because he wants to maintain a consistent 7 relationship with his children, but keeping the children in Pennsylvania will allow him the convenience of having reliable and free child care with Mother nearby. We also find that the proposed visitation schedule with Father is adequate and will still allow the children to maintain a meaningful, ongoing relationship with Father. Father can still have the children every other weekend, to include extended long weekends during the school year, and for a majority of the time during the summer. The exchange point will be in Thurmont, Maryland, which is only 53 miles from Father's home. Father erroneously argues that this Court should rely on Speck v. Spadofore, 895 A.2d 606 (Pa. Super. Ct. 2006), a case in which the Pennsylvania Superior Court found the trial court's approval of relocation inappropriate. The facts of Speck are easily distinguished from those in the present case. In Speck, the mother intended to move more than 200 miles and more than four hours away. More importantly, the child in Speck would have been separated from his siblings and all of his extended family. The court there found no improvement other than in the mother's personal relationship. The court found no other advantages and no significant benefit to the child. In the present case, Mother plans to move approximately 125 miles away. This is a trip of approximately two and one half hours away. The Court's proposed meeting point in Thurmont, Maryland gives Father the advantage of only traveling 53 miles while mother would have to drive 72 miles. The children in the case at bar are not being separated from each other and will not likely lose any significant contact with extended family. There is a clear economic benefit to the mother which will also obviously benefit the children. They will be in a situation with more predictable income, will be in a supportive family environment under the direct care of their mother on a daily basis, and will still be able to maintain a healthy relationship with Father. B. Preferences of the Children The express wishes of a child are not controlling in custody decisions, but such wishes do constitute an important factor that must be carefully considered in determining the child's best interest. Cardamone v. Elshoff, 659 A.2d 575, 582-583 (Pa. Super. 1995) (citing McMillen v. McMillen, 602 A.2d 845, 847 (Pa. 1992)). The child's preference must be based on good reasons, and the child's maturity and intelligence must be considered. Id. (citing McMillen, 602 A.2d at 847). It is clear to this Court that all of the children love both of their parents very much and that they had a difficult time choosing with whom they would rather live. Two of the children had to be asked twice before they indicated a preference. Those two said they wanted to live with their father, the other said she wanted to live with her mother. None of the children want to change schools. Cole's preference seemed to be more related to his desire to stay in Camp Hill, not necessarily to live with his dad. The children's preferences are to be given some weight, but we must also consider the reasons given as well as the child's maturity and intelligence. It is not unusual for a child not to want to change schools, as it can be an intimidating and scary process. One child indicated that her reason for wanting to stay with her dad was because her dogs and hamster were there. We do not find any reasons given by the children to be convincing enough to warrant a change of our decision. 9 fLife C. Improvement in Children's Quality o Our Superior Court has recognized that "when relocation is likely to result in a substantially enhanced quality of life for a custodial parent, often the child's best interests will be indirectly but genuinely served." Gruber v. Gruber, 583 A.2d 434, 438 (Pa. Super. 1990). In this case, it is clear that while one benefit is the improvement of the Mother's personal relationship, it is certainly not the only benefit. Relocation for Mother will eliminate her expenses for rent and other household expenses. Her new husband's income exceeds what she currently makes on her own, exceeds Father's income, and exceeds the income she and her husband earned together while they were married. Father has failed to make alimony payments for more than a year, and he let the insurance coverage on the children lapse for three months. Schools in the Prince William County school district, which children would attend if they were to move to Virginia, are at least comparable if not better than their current schools in Camp Hill. The children would be covered under J.R.'s medical insurance plan if they move with him and Mother to Virginia. If they move to Virginia, the children would each have their own room. Kayla and Cassie currently share a room. If Father is awarded primary custody and Mother still relocates to Virginia, Father will have to actually move into the Borough of Camp Hill to keep the children in the Camp Hill school district. This presents another uncertainty in the children's living situation should they stay with Father. The overall situation for the children will indeed improve if they move to Virginia. While they may not be able to see Father as frequently, the children will still have significant meaningful time with him and we do not believe that their relationship with him will suffer as a result of the relocation. They have no significant extended family in the Camp Hill area, and would still likely have the same amount of contact with extended family as they do now. This to Court believes that although the children obviously do have connections to this area through church, school, and sports, by and large these connections can still be maintained, albeit on a more limited basis. We believe that changing schools and moving to Virginia will not be a detriment to the children. These children are very resilient and this Court believes that they will have no problem adjusting to and thriving in a new environment. Mother's and children's relationship with J.R. seems to be stable and supportive, and it is clear that the children will be well-provided for in their home. Father has had inconsistent employment and let the insurance lapse on the children. He was laid off from his last job due to poor sales, and continues to work in retail which is likely to be unpredictable in this economic environment. While he argues that the children will be in an unstable environment with Mother and J.R., in fact, his situation seems to be one that would be more unstable for the children. D. Educational Opportunities Cole has had developmental difficulties and Father is concerned about Cole's transition to a new school. Camp Hill's program has been good for Cole and Father is worried that he will not receive the same level of support at a new school. Mother was the primary support for Cole during his therapy, and we are confident that she will ensure that he receives the services he needs. Mother has stated that Benton Middle School, where Cole will attend if he moves to Virginia, has a specific program to help transition special needs children. This Court is satisfied that the Prince William County school district will be able to provide the same or better support to Cole. The elementary school that Kayla and Cassie would attend in Virginia is larger, but has a comparable student-teacher ratio and is rated higher in reading and math levels than their current 11 elementary school in Camp Hill. We are satisfied that the children will have as good or better educational opportunities in their new schools. Both parents in this case are deeply concerned for their children, and the children have positive relationships with both parents. Relocation can be difficult for children, but it is sometimes necessary for parents to be able to continue their lives. As long as relocation supports the best interests of the children, and does not solely benefit the custodial parent and is not a "momentary whim", we must permit the relocation and adjust the custody arrangement accordingly. We find that, taking into consideration all of the relevant factors, Mother's proposed relocation will provide a better living situation for her and her children. The relocation will not place unreasonable obstacles on Father to continue shared custody, and, accordingly, the following order shall be entered: ORDER OF COURT AND NOW, this 10th day of July, 2009, after consideration of Plaintiffs Complaint requesting primary custody and permission to relocate, IT IS HEREBY ORDERED that: 1. Plaintiff shall have primary physical custody of the children. 2. Plaintiff shall be permitted to relocate to Virginia with her husband. 3. The parties shall have shared legal custody. 4. On or before August 14, 2009, the parties shall submit to the Court a proposed detailed order addressing physical custody pursuant to the following general court- required provisions: a.) Father shall have physical custody every other weekend, and this shall include the three-day holiday weekends (e.g. Martin Luther King Day, President's Day, etc.) b.) A major holiday schedule which divides the major holidays equally for Thanksgiving, Christmas, and Easter. 12 c.) Father shall have custody of the children during the summer school recess subject to Mother having two weeks vacation time with proper prior notice. d.) The custody exchange point shall be in Thurmont, Maryland By the Court, James W. Abraham, Esquire Abraham Law Offices 45 East Main Street Hummelstown, PA 17036 717-566-9380 Attorney for Plaintiff Susan Kay Candiello, Esquire 4010 Glenfinnan Place Mechanicsburg, PA 17055 717-724-2278 Attorney for Defendant 13 FILER U. ,? "-,.,..,,,- 9Y OF THE 1 ..- if 2009 jul- 10 1'l°t ! G L 1,i 73 ?'v ?`f GINA K. DRAGOVICH : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. :NO. 2008 - 6253 TROY N. DRAGOVICH : CIVIL ACTION - LAW Defendant :CUSTODY COURT ORDER AND NOW, this I y day of August, 2009, it is hereby ordered and directed that the parties hereto, Plaintiff, Gina K. Dragovich and Defendant, Troy N. Dragovich, shall have custody of their minor children, Nicholas Patrick Dragovich, born 12/01/1997, Kayla Jean Dragovich, born 03/05/2000 and Cassie Lynn Dragovich, born 06/05/2001 (hereinafter "the Children") as follows: 1. Legal Custody Mother, Gina K. Dragovich and Father, Troy N. Dragovich, shall have shared legal custody of the Children. The parties shall have an equal right 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 with such reasonable time as to make the records and information of reasonable use to the other parent. 2. Physical Custody a. Mother shall have primary physical custody of the Children. at her residence in Manassas, Virginia. The children shall attend school in the school district of Mother in Virginia. b. Father shall have the following periods of partial custody: 1) During the school year: Father shall have custody every other weekend from Friday at 6:30 p.m. until Sunday at 6:30 p.m. Additionally, Father shall have physical custody during the school year's 3-day holiday weekends as follows: Martin Luther King Day, President's Day and Memorial Day. 2) During the Summer: Father shall have custody the Children during the summer, beginning one (1) week after school is over and ending one (1) week before school begins, except for two (2) weeks vacation with thirty (30) days notice to Father or as otherwise agreed by the parties. c. Holidays: 1) Christmas: The parties shall equally share the school Christmas/New Years holiday time period. Christmas Day shall be alternated each year beginning with Mother in 2009. 2) Thanksgiving and Easter: The parties shall alternate the school Thanksgiving and Easter holiday time period, beginning with Father with Thanksgiving in 2009 and Easter in 2010. 3. Custody Exchange Location: All custody exchanges shall take place in Thurmont, Maryland. The specific location in Thurmont shall be agreed to by the parties. 4. The non-custodial parent shall have liberal telephone contact with the Children on a reasonable basis. 5. Neither party shall say or do anything nor permit a third party to do or say anything that may estrange the Children from the other party, or injure the opinion of the Children as to the other party, or may hamper the free and natural development of the Children's love or affection for the other party. To the extent possible, both parties shall not allow third parties to disparage the other parent in the presence of the Children. 6. In the event of a medical emergency, the custodial party shall notify the other parties as soon as possible after the emergency is handled. 7. During any periods of custody or visitation, the parties shall not possess or use controlled substances or consume/be under the influence of alcoholic beverages to the point of intoxication. The parties shall likewise assure, to the extent possible, that other household members and/or house guests comply with this provision. 8. The parties may modify this Order by mutual agreement in writing. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT: ?AA' M.L. Ebert, Jr., Judge Distribution: j.,eusan Kay Candiello, Esq., 4010 Glenfinnan Place, Mechanicsburg, PA 17055 ,,?nes W. Abraham, Esq., 45 E. Main St., Hummelstown, PA 17036 OF TMT "ICE YNR AUG 1 4 AM 104. 31 06