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HomeMy WebLinkAbout08-6408DIANE McCALISTER and : IN THE COURT OF COMMON PLEAS OF FRANCES A. RASMUSSEN, Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW 2008 - ?, y68 CIVIL TERM MELISA MORENO, Defendant IN CUSTODY COMPLAINT FOR CUSTODY AND NOW come the Plaintiffs, Diane McCalister and Frances A. Rasmussen, by and through their attorneys, Irwin & McKnight, and presents the following Complaint for Custody. 1. The Plaintiff, Diane McCalister, is an adult individual with an address of 213 West Pine Street, Carlisle, Cumberland County, Pennsylvania 17065. 2. The Plaintiff, Frances A. Rasmussen, is an adult individual with an address of 321 Juniper Street, Carlisle, Cumberland County, Pennsylvania 17013. 3. The Defendant, Melissa Moreno, is an adult individual with an address of Fourth Street, Apartment IA, Newport, Pennsylvania 17074. 4. The Defendant is the natural mother of two (2) minor children, namely; Cody L. Moreno, age four, born August 3, 2004; and Ruben L. Moreno, age three, born September 5, 2005. She is divorced from the natural father, Rocky Moreno. There are no current custody orders in effect. 5. The Plaintiff, Diane McCalister, is the maternal grandmother of said minor children. The Plaintiff, Frances A. Rasmussen, is the maternal great-grandmother of said minor children. 6. The minor children, Cody Moreno and Ruben Moreno, have been in the regular custody of the Plaintiffs who have provided substantial care for the children. 7. The best interests of the minor children require that the Plaintiffs assume primary physical custody of them. 8. The Plaintiffs will provide the Defendant regular physical custody and shared legal custody of said minor children. 9. The Plaintiffs desire primary physical custody of the said minor children with periods of temporary physical custody to Defendant, as the parties can agree. 10. The best interests and permanent welfare of the minor child requires that the Court grant the Plaintiffs' request as set forth above. WHEREFORE, the Plaintiffs, Diane McCalister, and Frances A. Rasmussen, respectfully requests that they be awarded primary physical custody and shared legal custody of said minor children, Cody L. Moreno and Ruben L. Moreno, as provided herein, with periods of temporary physical custody to Defendant, Melissa Moreno, as provided herein. Respectfully submitted, IRWIN & McKNIGHT By: Z4?? Marci[s A. i squh Attorney for laintiff 60 West Pom Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Supreme Court I. D. No. 25476 Date: October 29, 2008 VERIFICATION The foregoing Complaint for Custody is based upon information which has been gathered by counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. CA. RASMUSSEN Date: OCTOBER 29, 2008 r ? `__ c:7 coo -T'1 ?1l ? 't 1 T` '? 1v\ t`J r- h1 ?1 FTI Y DIANE MCCALISTER AND FRANCES A. IN THE COURT OF COMMON PLEAS OF RASMUSSEN PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. 2008-6408 CIVIL ACTION LAW MELISA MORENO IN CUSTODY DEFENDANT ORDER OF COURT AND NOW, Tuesday, November 04, 2008 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Tuesday, December 02, 2008 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. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ ac ueline M. Verne Es . Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 IW- A6v 'VIIN VA " N Nsl vqno Z£ :Z Wd ?- AON BOOZ DIANE MCCALISTER AND FRANCES A. RASMUSSEN, Plaintiffs V. MELISA MORENO, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-6408 CIVIL TERM IN CUSTODY PRELIMINARY OBJECTIONS AND NOW, comes Defendant, Melissa Moreno, by and through her counsel, Marylou Matas, Esquire, and the law firm of Saidis, Flower & Lindsay, and files the following Preliminary Objections to the Complaint for Custody: 1. The Plaintiff, Diane McCalister resides in Carlisle, Cumberland County, Pennsylvania and has so resided for at least the last six months. 2. The Plaintiff, Frances A. Rasmussen, resides in Carlisle, Cumberland County, Pennsylvania and has so resided for at least the last six months. 3. The Defendant, Melissa Moreno, resides at 35 North 4th Street, Apt. 4, Newport, SAM11S, FLOWER & LINDSAY A7TORNMl AT AW 26 West High Street Carlisle, PA Perry County, Pennsylvania, with the children. 4. The Defendant and the children have resided at 35 North 4th Street, Apt. 4, Newport, Perry County, Pennsylvania since March 2008 and they continue to reside at that address in Newport, Perry County, Pennsylvania. 5. Prior to residing at 35 North 4th Street, Apt. 4, Newport, Perry County, Pennsylvania, Defendant and the children resided at 8 North Market Street, Apt. 1, Duncannon, Perry County, Pennsylvania from approximately March 2007 through March 2008. j 6. The Defendant and the children reside at that residence in Newport, Perry County, Pennsylvania alone. LACK OF JURISDICTION AND IMPROPER VENUE 7. Paragraphs 1-6 are incorporated herein as if restated in full. 8. On February 6, 2007 the Court of Common Pleas of Perry County entered an Order providing to Melissa Moreno and the children's biological father, Rocky Moreno, shared legal and shared physical custody. A copy of said Order is attached hereto and incorporated herein and by reference as "Exhibit A". 9. On June 24, 2008 the Court of Common Pleas of Perry County further modified the Order between Defendant and the children's biological father to provide Defendant with sole legal and full physical custody of the minor children, which she has continued to exercise since the date of the Order. A copy of said Order is attached hereto and incorporated herein and by reference of "Exhibit B". 10. Jurisdiction in the above captioned case does not lie in Cumberland County pursuant to 23 Pa. C.S.A. Subsection 5421 since the home county of the children on the date of commencement of the current proceedings is Perry County for at least six months preceding. WHEREFORE, Defendant requests your Honorable Court to dismiss Plaintiffs' Complaint for Custody for lack of jurisdiction and improper venue pursuant to Pa R.C.P. 1028(a)(1). FAILURE OF PLEADING TO CONFORM TO LAW AND LACK OF CAPACITY TO SUE 11. Paragraphs 1-10 are incorporated herein as if restated in full. 12. Plaintiff, Diane McCalister, and Plaintiff, Frances A. Rasmussen, are grandmother and great-grandmother of the children at issue, respectively. 13. Neither Plaintiff has resided with the children for a period of twelve months or more during the children's lives. 14. Neither child has been adjudicated dependent pursuant to 42 Pa.C.S. Ch. 63. 15. Plaintiffs' request for primary physical custody fails to conform to the SAMIS, FLOWER & LINDSAY ATIOWONS•AT-uw 26 West High Street Carlisle, PA Grandparent Visitation Act requirements, 23 Pa C.S.A. §5313 et seq., in that they have requested primary physical custody of the children, and they have made their request without allegations of parental unfitness, child dependency or residency requirements. WHEREFORE, Defendant requests that Plaintiffs' Complaint for Custody be dismissed for Failure to Conform to Law pursuant to Pa. R.C.P. 1028(a)(2) and for their lack of standing and capacity to sue pursuant to Pa. R.C.P. 1028(a)(5). FAILURE TO CONFORM TO RULE OF COURT AND INSUFFICIENT SPECIFICITY OF PLEADING 16. Paragraphs 1-15 are incorporated herein as if restated in full. 17. Plaintiff's Complaint for Custody does not contain the basic information required by Pa. R.C.P. 1915.14(a) regarding the residency of the children for the past five years, and whether other custody litigation concerning the child has occurred in this or another court. With this basic information, the Court would have been able to ascertain that jurisdiction lies in Perry County. 18. Plaintiff's Complaint fails to conform to rule or law in that it fails to name all interested parties to the litigation by failing to name and serve the child's biological father, who has been named previously as a Defendant in other custody litigation in another jurisdiction. WHEREFORE, Defendant requests that Plaintiffs' Complaint for Custody be dismissed for failure to conform to rule, insufficient specificity of a pleading, and non joinder of a necessary party, pursuant to Pa. R.C.P. 1028(a)(2), (3), and (5). Respectfully Submitted, SAIDIS, FLOWER & LINDSAY r Mary bu atas, Esquire Supreme ount ID No. 84919 26 West High Street Carlisle, PA 17013 (717) 243-6222 Fax (717) 243-6486 Dated: (t? Z(P wb Attorney for Defendant SAIDIS, FLOWER & LINDSAY ATIORIa-tS-AT•uw 26 West High Street Carlisle, PA DIANE MCCALISTER AND FRANCES A. RASMUSSEN, Plaintiffs V. MELISA MORENO, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-6408 CIVIL TERM IN CUSTODY CERTIFICATE OF SERVICE On this z ?, day of November, 2008, Marylou Matas, Esquire, of the law firm of Saidis, Flower & Lindsay, hereby certify that on this date a copy of the attached documents was served on the following individuals, via first class mail, postage prepaid, addressed as follows: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 SAIDIS, FLOWER & LINDSAY -141 M 1 atas, "squire Suprem ourt ID No. 84919 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Defendant SAIDIS, FLOWER & LINDSAY MIQX E'rs M uw 26 West High Street Carlisle, PA DIANE MCCALISTER AND FRANCES A. RASMUSSEN, Plaintiffs V. MELISA MORENO, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-6408 CIVIL TERM IN CUSTODY VERIFICATION I, Marylou Matas, Esquire, attorney for Melisa Moreno, verify that the statements made in the foregoing Preliminary Objections are true and correct and certify that I am authorized to do so, and that the persons having knowledge of matters alleged in this pleading are outside the jurisdiction of the Court and their Verification cannot be obtained within the time allowed for filing the pleading. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Date: j I Z Ma ?yiou tas, Esquire SAIDIS, FLOWER & LINDSAY ATIUMEYS-Ai GW 26 West High Street Carlisle, PA :IN THE COURT OF COMMON PLEAS A MORENO :OF THE 41sT JUDICIAL DISTRICT V. :OF PENNSYLVANIA - MORENO :PERRY COUNTY BRANCH :NO. FC-2007-8 ORDER AND NOW, February 6, 2007, the parties appearing in Court and having that they have reached an agreement, the following is entered as an Order of 1. The parties shall have shared legal and shared physical custody of the children, Cody Lynn Moreno, date of birth, August 5, 2004 and Ruben Lee date of birth, September 2, 2005. Custody shall be on a 6 month basis. Mother have custody of the children from January 1 through July 1 and Father shall have of the children July 1 through January 1 of each year. 2. The parties will make arrangements for sharing holidays and visitation or partial custody while the children are in the other parent's custody. 3. The parties have further agreed that once the children begin school, Mother all have custody of the children during the school year and Father shall have custody g the summer. 4. Travel arrangements shall be by agreement and the parties anticipate that shall occur at a half-way point. Both parties have indicated that the other is more than welcome in their home at any time. 5. The parties are excused from attending the Seminar for Separated Parents, CC ? TI ?P A TR E 4?9L- ---fff-PUTY NROTI-10NUARY however, the Court reserves the right to require that in the future. BY THE COURT, KATHY A. MORROW, JUDGE cc: Plaintiff, pro se Defendant, pro se File C C ur-? 1? CJ M t N S-} C 4 ?; V r 'I i i MELISSA MORENO V. ROCKY MORENO :IN THE COURT OF COMMON PLEAS :OF THE 41s'r JUDICIAL DISTRICT :OF PENNSYLVANIA - :PERRY COUNTY BRANCH :NO. FC-2007-8 ORDER AND NOW, June 24, 2008, the Plaintiff appearing pro se, the Defendant not appearing, and with the assistance of the custody conciliator, the Court being provided with certain information, the Court is entering the following as an Order of Court: 1. Due to the Defendant not exercising his periods of custody, nor having any contact with the children, as ordered by this Court on October 16, 2007, the Court is awarding sole legal and sole physical custody of the minor children, Cody L. Moreno, date of birth, August 5, 2004, and Ruben L. Moreno, date of birth, September 2, 2005, to the Mother, Melissa Moreno. 2. Father would be allowed to have partial custody or visitation with the children, if he contacts Mother and makes arrangements for same. 3. The Court understands that Father is currently residing in Colorado, and is anticipating deployment in the near future. If Father wishes to see the children, he shall be responsible for all transportation costs, and arrangements. Of course, arrangements shall be discussed with Mother before they are finalized. ---° m 4. Father shall have 20 days from this Order to file any exceptions;ther?to. ;n 7- ;-n BY THE COURT, KATHY MORROW, JUDGE c: Plaintiff, pro se Defendant, pro se Chrystal Prosser, Esquift (Custody Conciliator) File C TWIED TRUE COPY All 0 PROTHONOT Y I CLERK OF URTS ...a 1+? Y C._ry ,....^ ;yi .? j?.? ,y ._,? ?., ._?. DIANE MCCALISTER AND FRANCES A. RASMUSSEN, PLAINTIFFS V. MELISA MORENO, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 08-6408 CIVIL TERM ORDER OF COURT AND NOW, this A day of December, 2008, IT IS ORDERED that a hearing shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 8:45 a.m., Wednesday, December 17, 2008, to take any testimony necessary to resolve any factual dispute for the purposes of ruling on the preliminary objections. Argument on the preliminary objections shall then be conducted following completion of the taking of any evidence. By thpXburt, Edgar B. Bayley, Marcus McKnight, Esquire For Plaintiffs Marylou Matas, Esquire For Defendant Jacqueline Verney, Esquire Custody Conciliator 0 3- o :sal r- ?a F--_ t a l ?= - 1 ? l CC e.. DIANE McCALISTER and FRANCES A. RASMUSSEN, Plaintiffs V. MELISA MORENO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2008 - 6408 CIVIL TERM IN CUSTODY PRAECIPE TO WITHDRAW COMPLAINT TO CURTIS R. LONG, PROTHONOTARY: Please withdraw the Complaint in Custody in the above captioned case. Respectfully submitted, IRWIN & MrcKNIG By: Marcus A. McKn ht, II , Esquire 60 West Pomfret S Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No: 25476 Attorney for Plaintiff, Julie A. Kretzing Date: December 15, 2008 .i DIANE MCCALISTER and : IN THE COURT OF COMMON PLEAS OF FRANCES A. RASMUSSEN, Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW 2008 - 6408 CIVIL TERM MELISA MORENO, Defendant IN CUSTODY CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Praeceipe was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Marylou Matas, Esq. Saidis, Flower & Lindsay 26 West High Street Carlisle, PA 17013 Jacqueline M. Verney, Esq. 44 South Hanover Street Carlisle, PA 17013 RWIN & McKNIGHT By: Marcus AjMc ght, III, Es 60 West P mfrt Street Carlisle, PA 170 (717) 249-2353 Supreme Court I.D. No. 25476 Date: December 15, 2008 rr c-y ?, cry _ ?' rv '. Jr- sn DEC 8 2 2008 x- DIANE MCCALISTER and : IN THE COURT OF COMMON PLEAS OF FRANCES A. RASMUSSEN, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2008-6408 CIVIL ACTION - LAW MELISA MORENO, . Defendant : IN CUSTODY ORDER OF COURT AND NOW, this 22"d of December, 2008, being advised that the plaintiff has filed a Praecipe to Withdraw Complaint, the Conciliator hereby relinquishes jurisdiction in this matter. FOR THE COURT, cque e M. Verney, Esquire, Custod Conciliator yet _.... ?.v...y .a.,! y...