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HomeMy WebLinkAbout09-2425 COYNE & COYNE, P.C. John W. Carter, Esquire Pa. Supreme Ct. No. 202849 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 ATTORNEY FOR PLAINTIFF KYLE P. SAYERS, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. :NO. 69-,2 25 C `T AMANDA S. WEAVER, CIVIL ACTION -LAW Defendant CUSTODY COMPLAINT FOR CUSTODY To the Honorable, Judges of said Court: AND NOW COMES, the Plaintiff, Kyle P. Sayers, by and through his attorney, John W. Carter, Esquire of Coyne & Coyne, P.C., and avers the following in support of this complaint for Custody: 1. Plaintiff is KYLE P. SAYERS, an adult individual, who resides at 117 Barrick Drive, Duncannon, Perry County, Pennsylvania. 2. Defendant is AMANDA S. WEAVER, an adult individual, who resides at 612 Southview Drive, Mechanicsburg, Cumberland County, Pennsylvania. 3. Plaintiff seeks custody of the minor child, GRADY JAMES WEAVER, born June 11, 2008 who currently resides at 612 Southview Drive, Mechanicsburg, Cumberland County, Pennsylvania. 4. The child was born out of wedlock. 5. The child is currently in the custody of Defendant AMANDA S. WEAVER. A, 6. During the past five years, the child has resided with the following persons and at the following addresses: Name: Residence: Dates: Amanda S. Weaver 612 Southview Drive June 11, 2008 to Present Mechanicsburg, PA 17055 7. The Mother of the child is the Defendant who is unmarried. 8. The Father of the child is the Plaintiff who is unmarried 9. The relationship of the Plaintiff to the child is that of natural father. The Plaintiff currently resides with his mother, Donna Rowe and step-father, Gregory Rowe at 117 Barrick Drive, Duncannon, Perry County, Pennsylvania. 10. The relationship of the Defendant to the child is that of mother. The Defendant currently resides with her parents, Shannon and Barbara Weaver 612 Southview Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 11. Plaintiff has not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the child in this or another court. 12. Plaintiff has no information of a custody proceeding concerning the child pending in a court of this Commonwealth or any other state. 13. Plaintiff does not know of a person not a party to the proceedings that has physical custody of the child or claims to have custody or visitation rights with respect to the child. 14. The best interest and permanent welfare of the child will be served by granting the relief requested as it will fully maximize the time the child will spend with each parent and it is in the best interest of the child to have regular, steady, and quality contact with both parents and as such Plaintiff seeks joint legal and physical custody of the child with the child spending equal time with the parties on a regular and routine basis. 15. Each parent whose parental rights to the child has not been terminated and the person who has physical custody of the child have been named as parties to this action. All other persons, named below, who are known to have or claim a right to custody or visitation of the child will the given notice of the pendency of this action and the right to intervene: NONE. WHEREFORE, Plaintiff requests this Honorable Court to grant Plaintiff shared legal and physical custody of the child. Respectfully submitted, Dated: 1(o d COYNE & COYNE, P.C. By: L" . JOHN W. CARTER, ESQUIRE 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa. S. Ct. No. 202849 Attorneys for Plaintiff • r VERIFICATION I, KYLE P. SAYERS, certify that the statements made in the foregoing document are true and correct to the best of my knowledge, information, and belief and that this verification is subject to the penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. Date Q 2& A gp- •? ? KYLE P. AYERS A RLED-2 , :CJ QE T ; mss, `?1RY 2CII APR 17 At*,1 $: 3 2? 0i4 S. so eK-1:1- y3Ys jz-14- a aaOsA KYLE P. SAYERS PLAINTIFF V. AMANDA S. WEAVER DEFENDANT . IN THE COURT OF COMMON PLEAS OF . CUMBERLAND COUNTY, PENNSYLVANIA 2009-2425 CIVIL ACTION LAW . IN CUSTODY ORDER OF COURT AND NOW, Friday, April 24, 2009 , 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 Monday, May 25, 2009 at 8:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT. By: Is/ John . M an 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 ?zn 2009 APP 23 A II, 5 .29 #4710q c? cry ...:mac.-? A444 J . e Sheriffs Office of Cumberland County R Thomas Kline -111,11, of t'"41pr/?414 Edward L Schorpp Sheriff' Solicitor Ronny R Anderson Jody S Smith Chief Deputy OFFICE OF THE SRERIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 04/25/2009 09:00 AM - Robert Bitner, Deputy Sheriff, who being duly sworn according to law, states that on April 25, 2009 at 0900 hours, he served a true copy of the within Complaint in Custody, upon the within named defendant, to wit: Amanda S. Weaver, by making known unto Jessica Weaver, adult sister of defendant at 612 Southview Drive Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $39.22 April 27, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF 2009-2425 Kyle P. Sayers VS Amanda S. Weaver By 6L" 1, 0 Deputy Sheriff . FILED C,F THE 2009 APR 28 AM 9: 1 4b KYLE P. SAYERS, Plaintiff V. AMANDA S. WEAVER, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2009-2425 CIVIL ACTION -LAW CUSTODY CERTIFICATE OF SERVICE I, John W. Carter, Esquire, hereby certify that a copy of the Order of Court, dated April 24, 2009 and the rescheduling letter dated April 29, 2009, issued by the Custody Conciliator, has been served upon the below-referenced individual by Certified Mail, Return Receipt, postage prepaid and First Class Mail, addressed as follows: Amanda S. Weaver 612 Southview Drive Mechanicsburg, Pennsylvania 17055 COYNE & COYNE, P.C. Dated: /a / BY: John W. Carter, Esquire 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa. S. Ct. No. 202849 Attorney for Plaintiff 1 CAM HE Fi<i"(F (' ;'N I r' RY 2099 AN 30 PH 2.3=r JUN 0120Ak KYLE P. SAYERS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 09-2425 CIVIL ACTION LAW AMANDA S. WEAVER, IN CUSTODY Defendant ORDER OF COURT AND NOW this day of June 2009, upon consideration of the attached Custody Conciliation Report, it is Ordered and Directed as follows: 1. Legal Custody: The Father, Kyle P. Sayers, and the Mother, Amanda S. Weaver, shall have shared legal custody of Grady James Weaver, born 06/11/2008. The parties shall have an equal right to make all major non-emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding his health, education and religion. Pursuant to the terms of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the Child including, but not limited to, medical, dental, religious or school records, the residence address of the Child and of the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. 2. Physical Custody: Mother shall have primary physical custody of the Child subject to Father's physical custody as follows: a. Father shall have physical custody of Grady every Tuesday and Wednesday from 5:30 pm until 7:30 pm. Father has agreed to, and shall, provide the transportation to and from Mother's residence for his custody periods. b. Commencing 05/30/2009, Father shall have physical custody of Grady every other Saturday from 3:00 pm until 6:00 pm at paternal grandmother's residence in Mechanicsburg. Mother has agreed to, and shall, provide the transportation for the custody exchanges on Saturday. C. Commencing 06/06/2009, Father shall have physical custody of Grady every other Saturday from 2:00 pm until 4:00 pm at Father's residence. Mother has agreed to, and shall, provide the transportation for the custody exchanges on Saturday. d. The parties have agreed to be flexible in regard to the days and times of Father's periods of custody. The parties shall give each other one week's notice of any requested changes in times or days for Father's periods of custody to alter the above schedule. e. Father shall have physical custody of the Child at such other times as the parties may mutually agree. 3. Each parent shall have an appropriate child seat to transport the Child. 4. Father shall endeavor to continue with parenting sessions and undergo a drug and alcohol evaluation and follow the recommendations until successfully completed. r` ti? a 5. The non-custodial parent shall have liberal telephone contact with the Child on a reasonable basis. 6. Holidays: The parents shall establish a holiday schedule at the status update conference with the assigned conciliator on July 24, 2009 at 8:30 am. 7. Neither party may say or do anything nor permit a third party to do or say anything that may estrange the Child from the other party, or injure the opinion of the Child as to the other party, or may hamper the free and natural development of the Child'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 Child. 8. In the event of a medical emergency, the custodial party shall notify the other parties as soon as possible after the emergency is handled. 9. 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. 10. Custody evaluation: The parties have agreed that a mini custody evaluation with a mutually- agreed upon professional may be beneficial to the instant matter. In the absence of agreement, the parties shall engage Deb Salem to conduct the mini-evaluation. The cost of said evaluation shall be split equally between the parties. Mother shall initiate contacting the evaluator to begin the mini-evaluation. 11. A status update conference is scheduled with the assigned conciliator on July 24, 2009 at 8:30 am. 12. This Order is entered pursuant to 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, . ?? D?'stribution: "John Connelly, Esq. /J(hn Carter, Esq., 3901 Market Street, Camp Hill, PA 17011-4227 /J .ohn J. Mangan, Esquire Cop t'e.S mkt LCL Lc : I1 WIV z- N ri' 6Ou" I KYLE P. SAYERS, Plaintiff V. AMANDA S. WEAVER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-2425 CIVIL ACTION LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF C M PROCEDURE 1915.3-8(b), the undersigned Custody Conciliator submits the following report: 1. The pertinent information pertaining to the Child who is the subject of this litigation is as follows: Name Date of Birth Currently in the Custody of Grady James Weaver 06/11/2008 Primary Mother 2. A Conciliation Conference was held with regard to this matter on May 29, 2009 with the following individuals in attendance: The Mother, Amanda Weaver, with her counsel, John Connelly, Esq. The Father, Kyle Sayers, with his counsel, John Carter, Esq. 3. The parties agreed to the entry of an Order in the form as attached. Date I Ma j*afi, Esquire iv Conciliator COYNE & COYNE, P.C. Lisa Marie Coyne, Esq. Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 ATTORNEY FOR PLAINTIFF KYLE P. SAYERS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. No. 09-2425 Civil AMANDA S. WEAVER, Defendant CIVIL ACTION -LAW CUSTODY PRAECIPE FOR ENTRANCE OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Lisa Marie Coyne as attorney of record in this matter for the Plaintiff, Kyle P. Sayers. COYNE & COYNE, P.C. Dated: 01-f- By: ?--? Lis Marie Coyne, Es . S. Ct. No. 53788 3901 Market Street Camp Hill, PA 170114227 (717) 737-0464 Cf. John J. Connelly, Jr., Esq. Attorney for Defendant OIF THE Fr,-.l ARY Inj -)l ii c-4 Fill 31. 261 2009 Jlu c6 YY SEP 3 0 X009 KYLE P. SAYERS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v No. 09-2425 CIVIL ACTION LAW AMANDA S. WEAVER, IN CUSTODY Defendant Prior Judge: M. L. Ebert, Jr., J. ORDER OF COURT ~h AND NOW this _~ day of September 2009, upon consideration of the attached Custody Conciliation Report, it is Ordered and Directed as follows: 1. All prior Orders of Court are hereby VACATED and replaced with this Order. 2. This Order is entered pursuant to a Custody Conciliation Conference. A Custody Hearing is hereby scheduled on the 3rd day of December 2009 at 1:30 pm in Courtroom number 5 in the Cumberland County Court of Common Pleas, Carlisle, PA 17013 at which time testimony will be taken in regard to the physical custody for the subject Child. For purposes of this hearing, the Father shall be deemed to be the moving parry and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be expected to testify at the hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least five days prior to the hearing date. 3. Legal Custody: The Father, Kyle P. Sayers, and the Mother, Amanda S. Weaver, shall have shared legal custody of Grady James Weaver, born 06/11/2008. The parties shall have an equal right to make all major non-emergency decisions affecting the Child's general well- being including, but not limited to, all decisions regarding his health, education and religion. Pursuant to the terms of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the Child including, but not limited to, medical, dental, religious or school records, the residence address of the Child and of the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. 4. Physical Custod,.y: Mother shall have primary physical custody of the Child subject to Father's physical custody on a repeating two week schedule as follows: a. In week one, commencing 09/22/2009, Father shall have custody Tuesday and Thursday from 5:30 unti17:30 pm. b. In week two, Father shall have custody Tuesday from 5:30 pm until 7:30 pm, Friday from 4:00 pm until 7:00 pm, Saturday from 12:30 pm unti16:30 pm and Sunday from 12:30 pm unti16:30 pm. c. Father shall be responsible for the custody exchanges to and from Mother's residence between Monday and Thursday. For the Friday exchanges, father o~ shall pick the Child up from Mother's residence at 4:00 pm and Mother shall pick the Child up from Father's residence at 7:00 pm. The Saturday and Sunday exchanges shall occur at the Raddison Hotel in East Pennsboro. d. The parties have agreed to be flexible in regard to the days and times of Father's periods of custody. The parties shall give each other one week's notice of any requested changes in times or days for Father's periods of custody to alter the above schedule. e. Father shall have physical custody of the Child at such other times as the parties may mutually agree. 5. Each parent shall have an appropriate child seat to transport the Child. 6. Father shall endeavor to continue with parenting sessions and undergo a drug and alcohol evaluation and follow the recommendations until successfully completed. 7. The non-custodial parent shall have liberal telephone contact with the Child on a reasonable basis. 8. Holidays: The parties shall mutually arrange a holiday schedule. In the absence of agreement, for Thanksgiving 2009, Mother shall have custody of the Child until 2:30 pm and Father shall have custody from 2:30 pm unti17:30 pm. Mother shall drop the Child off at 2:30 pm at the paternal grandmother's residence and Father shall return the Child at 7:30 pm to Mother's residence. 9. Neither party may say or do anything nor permit a third party to do or say anything that may estrange the Child from the other party, or injure the opinion of the Child as to the other party, or may hamper the free and natural development of the Child'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 Child. 10. In the event of a medical emergency, the custodial party shall notify the other parties as soon as possible after the emergency is handled. 11. 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. 12. Custody evaluation: The parties have engaged in a mini custody evaluation with Deb Salem. The parties have agreed to, and shall, continue working with Ms. Salem and follow her recommendations in regard to physical custody of the Child. By agreement, the cost of said evaluation shall be borne by Mother. 13. In the event that the parties feel that another conciliation is appropriate, the parties, through their counsel, may contact the assigned conciliator directly to schedule a conference. 14. This Order is entered without prejudice to either party regarding overnights, or lack thereof. 15. This Order is entered pursuant to 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, Regular Physical Custody Schedule Pending Hearin Monday Tuesday Wednesday Thursday Friday Saturday Sunday D D 5:30- 5:30- 7:30 7:30 D D D D 5:30- 4:00- 12:30- 12:30- 7:30 7:00 6:30 6:30 Distribution: „e,hristine Brann, Esq. „Lisa Coyne, Esq. ,john J. Mangan, Esquire V KYLE P. SAYERS, Plaintiff v. AMANDA S. WEAVER, Defendant Prior Judge: M. L. Ebert, Jr., J. 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-2425 CIVIL ACTION LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8(b), the undersigned Custody Conciliator submits the following report: The pertinent information pertaining to the Child who is the subject of this litigation is as follows: Name Date of Birth Currently in the Custod~of Grady James Weaver 06/11/2008 Primary Mother 2. A Conciliation Conference was held with regard to this matter on May 29, 2009, an Order was issued June 2, 2009, a telephonic conference was held July 27, 2009, an Order issued July 29, 2009 and a conference was held September 22, 2009 with the following individuals in attendance: Christine Brann, Esq., representing the Mother, Amanda Weaver Lisa Coyne, Esq., representing the Father, Kyle Sayers. 3. The Conciliator recommends an Order in the form as attached scheduling a Hearing and entering an Order of Court regarding custody as outlined. It is the Conciliator's belief that this would be in the Child's best interest. It is expected that the Hearing will require one half day. 4. The proposed recommended Order may contain a requirement that the parties file a pre- trial memorandum with the Judge to whom the matter has been assigned. Date John ,Esquire -~ Custo y C ciliator FlIE~F~ QF 11-~ P~O~-!~~4TARY 20II~ OCT - ! ~M 3= 42 NNSYLV~'~V~ KYLE PHILLIP SAYERS, IN THE COURT OF COMMON PLEAS OF PLAINTIFF :CUMBERLAND COUNTY, PENNSYLVANIA V. AMANDA SUE WEAVER, DEFENDANT NO. 09-2425 CIVIL IN RE: REQUEST FOR TRANSCRIPT DUE TO APPEAL AND STATEMENT OF MATTERS COMPLAINED OF ORDER OF COURT AND NOW, 8th day of March, 2010, upon consideration of the Defendant's Request for the Transcript in the above proceedings, IT IS HEREBY ORDERED AND DIRECTED that the Defendant's Request for Transcript is GRANTED. The Court Reporters shall prepare the transcripts from the hearings of December 3, 2009, and February 4, 2010. Costs to prepare the Original Transcripts shall be borne by Defendant. The Statement of Matters Complained of on Appeal has already been filed and received by this Court. By the Court, ~~ M. L. Ebert, Jr., J. Xsa Marie Coyne, Esquire ~ p Attorney for Plaintiff -~, ~;, z ~hristine T. Brann, Esquire `''`- ~ ~ . Attorney for Defendant ~: ` U ~ as O ~. ~; •~ C-- ~ N t ~ k'ri ~, ` ~ ~ ~ N (r i~ N ~~ KYLE PHILLIP SAYERS, IN THE COURT OF COMMON PLEAS OF PLAINTIFF :CUMBERLAND COUNTY, PENNSYLVANIA V. AMANDA SUE WEAVER, DEFENDANT NO. 09-2425 CIVIL IN RE: MOTION FOR RECONSIDERATION ORDER OF COURT AND NOW, 8th day of March, 2010, upon consideration of the Defendant's Motion for Reconsideration, IT IS HEREBY ORDERED AND DIRECTED that the Defendant's Motion for Reconsideration is DENIED. By the Court, M. L. Ebert, Jr., J. ~sa Marie Coyne, Esquire Attorney for Plaintiff ~hristine T. Brann, Esquire Attorney for Defendant bas `' n C a '~ -y m ~ ~x ~,~:. ~ ~ ~ .C' . m -~ ~_. ~ l ..'a t. ~ ' -j 7 °' c N ~°.. N Karen Reid Bramblett, Esq. Pennsylvania Judicial Center Prothonotary Middle District P.O. Box 62435 Milan K. Mrkobrad, Esq. 601 Commonwealth Avenue, Suite 1600 Deputy Prothonotary Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court. state. pa. us CERTIFICATE OF REMITTAUREMAND OF RECORD TO: David D. Buell -, Prothonotary -?3 C ° .-i RE: K.P.S. v. A.S.W. r n =? car C-5-5 x rn - -am 402 MDA 2010 ,r--- ?<D 1 - J :VC:7 o, Trial Court: Cumberland County Court of Common Pleas . Trial Court Docket No: 09-2425 ? Annexed hereto pursuant to Penns lvania Rules of A ellate P d 257 V d X7 2 y pp roc the entire record for the above matter. e ure h .; cn Original Record contents: Item Filed Date Description Part April 15, 2010 1 Transcripts April 15, 2010 2 Exhibits April 15, 2010 1 Envelope w/Transcript Remand/Remittal Date: 12/06/2010 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, 0?? Milan K. Mrkobrad, Esq. Deputy Prothonotary /vsl Enclosure cc: Christine Taylor Brann, Esq. Lisa Marie Coyne, Esq. The Honorable Merle L. Ebert Jr., Judge K.P.S. v. A.S.W. 402 M DA 2010 Letter to: Buell, David D. Acknowledgement of Certificate of RemittaVRemand of Record (to be returned): Signature Date Printed Name `J.A2a031/10 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 K.P.S., IN THE SUPERIOR COURT OF Appellee PENNSYLVANIA . r°- N „V.? --, A.S.W. ??-`= '`'° Appellant No. 402 MDA 20t@) n rv d cz Appeal from the Order entered February 19, 2010, - ' in the Court of Common Pleas of Cumberland County, Civil Division, No. 2009-2425 BEFORE: BENDER, GANTMAN and FREEDBERG, JJ. MEMORANDUM: FILED: October 14, 2010 A.S.W. ("Mother") appeals from the order entered in the Cumberland County Court of Common Pleas, granting her and K.P.S. ("Father") shared physical custody of their minor son, G.J.W. (""Child"), who was born out-of- wedlock on June 11, 2008. We affirm. This appeal arises from a custody complaint filed by Father on April 17, 2009, wherein he requested equally shared physical custody of Child. The certified record reveals that Father expressed his desire to exercise parental rights and perform parental duties since the time of Mother's pregnancy with Child.' Notes of Testimony ("N.T."), 12/3/2009, at 12-16. Prior to commencing the custody action, Father visited Child at Mother's home for 1 The parties' relationship ended prior to Child's birth. IJ.A27031/10 approximately one hour, three days per week.2 Id. at 17-18. Following the commencement of the custody action, and the parties' participation in custody conciliation proceedings, Father was granted a gradual increase in physical custody, including custody with Child at his residence and the residence of his grandmother for periods up to and including six hours, by temporary orders of court dated June 2, 2009; July 29, 2009; and September 30, 2009. Pursuant to the temporary custody orders, Mother and Father were required to participate in a "mini custody evaluation." See Orders, 6/2/2009, at ¶ 10; 7/29/2009 at ¶ 12. To this end, they engaged the services of Deborah L. Salem, CACD, LPC, and they were directed to continue working with Salem and to follow her recommendations with regard to physical custody. See Order, 9/30/2009, at ¶ 12. Salem's goal in the custody matter was to assist the parties in reaching a custody agreement. See Report, 11/30/2009, at 1. She believed Mother and Father were capable of sharing physical custody; she recommended a graduated schedule of increased custody for Father based on Child's best interests considering factors such as his age and developmental needs, his ability to adjust to Father's increased custody, and the parties' co-parenting skills. Id. at 1-3. Salem established a graduated 2 Father voluntarily paid child support following Child's birth. He currently pays child support per a court order because Mother filed a child support action subsequent to Father's commencement of the custody action. N.T., 12/3/2009, at 23. -2- 'J.A27031/10 custody schedule, generally increasing Father's custody in two-month increments. Id. at 3. By March 2010, she recommended that Father exercise overnight visits on alternating Friday evenings, inter alia. Id. By April 2010, she recommended that he exercise alternating weekend overnights, inter alia, and by July 2010, that he exercise custody on a two week schedule; one week Father would have Child Thursday through Sundays, with Thursday overnights on the alternating week. Id. Salem conditioned her recommendation of a graduated schedule, in large part, on Child's adjustment to the schedule. Id. at 4-5. On December 3, 2009, the first day of the custody hearing, Father was exercising custody in alternating weekly cycles per court order as follows: in week one, he exercised custody for two hours on Tuesday evening and three hours on Thursday evening; in week two, he exercised custody for two hours on Tuesday evening, three hours on Friday evening, six hours on Saturday, and six hours on Sunday. See Order, 9/30/2009; N.T., 12/3/2009, at 29- 30. Following Mother's and Father's testimony on December 3, 2009, the trial court entered an order continuing the hearing until February 4, 2010, and establishing the following temporary custody schedule for Father: three hours every Tuesday evening; overnight on December 12, 2009; overnight on Christmas Day; overnights on January 8 and 9, 2010; and overnight on January 22, 2010. - 3 - ' J.A27031/10 Upon the conclusion of the custody hearing, the trial court, by order dated February 4, 2010, and entered on February 19, 2010, directed primary physical custody of Child to remain with Mother until May 21, 2010. Thereafter, the order directed the parties to exercise physical custody on a week-on, week-off basis. See Order, 2/19/2010, at ¶3. From the date of the order until May 21, 2010, the court set forth a graduated schedule granting Father partial custody for three hours every Tuesday evening, and specific overnights. See id. at ¶ 2. Further, the order set forth a holiday schedule and stated that parties would share legal custody. This timely appeal followed.3 On appeal, Mother presents the following issues for our review: 1. Whether the Court's determination that [Mother] and [Father] exercise joint physical custody of their minor child on a week on/ week off basis commencing Friday, May 21, 2010 with no mid- week partial custody with the other parent is against the weight of the evidence of record and is not in the best interest of the minor child. 2. Whether the Court erred in discounting the uncontradicted expert testimony of the custody evaluator, without competent evidence of record to the contrary, whose custody evaluation recommended that Mother be awarded primary physical custody of the parties' minor son pending further review of the minor child's adjustment as well as a review of the parents' cooperation with co-parenting decisions, which would not occur prior to December 31, 2010. 3 Mother concurrently filed the notice of appeal with the concise statement of errors complained of on appeal, as required by Pa.R.A.P. 905(a)(2) and Pa.R.A.P. 1925(a)(2)(i). The trial court filed its 1925(a) opinion on April 13, 2010. -4- 'J.A27031/10 3. Whether the Court erred in awarding shared physical custody of the parties' minor child based on the Court's personal views and experiences, without any basis supported by competent evidence of record, inconsistent with M.A.T. v. G.S.T., [ ], 989 A.2d 11 (Pa. Super. 2010). 4. Whether the Court erred in failing to include in its Order . .. a requirement that Father reimburse Mother $1,800.00 representing one-half of the fees incurred as a result of the custody evaluation completed by Deborah L. Salem, . . . even though the Court stated on the record that Father was to contribute one-half of the cost of said evaluation. Brief for the Mother, at 6. Appellate review of child custody matters implicates the following principles: Our paramount concern and the polestar of our analysis in this case, and a legion of prior custody cases is the best interests of the child. The best interests standard, decided on a case-by- case basis, considers all factors which legitimately have an effect upon the child's physical, intellectual, moral and spiritual well- being. On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the fact-finding function of the trial court in order to substitute our judgment for that of the trial court. Rather, we are bound by findings supported in the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court. Further, on the issues of credibility and weight of the evidence, we defer to the findings o[f] the trial judge. Additionally, appellate interference is allowed only where it is -5- ' J.A27031/10 found that the custody order is manifestly unreasonable as shown by the evidence of record. Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006), quoting Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). Moreover, [T]he discretion that a trial court employs in custody matters should be accorded the utmost respect, given the special nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned. Indeed, the knowledge gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record. Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006), quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004). The factors which must be considered in awarding shared physical custody are well established: 1) both parents must be "fit," that is, "sane and capable of making rational child-rearing decisions, . . . willing and able to provide love and care for their children;" 2) both parents must evidence a continuing desire for active involvement in the child's life; 3) both parents must be recognized by the child as sources of security and love; 4) a minimal degree of cooperation between the parents must be possible. Wiseman v. Wall, 718 A.2d 844, 848 (Pa. Super. 1998) (citations omitted). In her first issue on appeal, Mother argues the evidence does not support an award of shared physical custody. Specifically, Mother argues the parties are not capable of a minimal degree of cooperation. In addition, -6- 'J.A27031/10 she argues that Child has not adjusted well to overnight visits with Father. Further, Mother argues the trial court misapplied 23 Pa.C.S.A. § 5301. The trial court found that Mother and Father are capable of a minimum degree of cooperation. This Court recently reiterated that a minimal degree of cooperation does not, translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to isolate their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor. B.C.S. v. ].A.S., 994 A.2d 600, 603 (Pa. Super. 2010) (citation omitted). Upon review, we conclude the testimonial evidence supports the court's finding that the parties are able to cooperate sufficiently to allow for shared custody. Most significantly, we note Salem's testimony: THE COURT: At any time during the sessions that you had [with Mother and Father], did you see any outright hostility between them, name calling, any of that? THE WITNESS: They get along extremely well sitting in an office together. . . . They are very respectful with each other. They don't agree but, actually, they do better than a lot of older folks.... THE COURT: That was my perception from the first hearing. N.T., 2/4/2010, at 23. Further, we note Father's testimony as follows: A. I wouldn't say that we don't communicate because we do. -7- `J.A27I031/10 Q. It doesn't sound like there is much. A. It is a lack of enthusiastic communication. Id. at 103. Because this testimonial evidence supports the trial court's finding that Mother and Father are capable of the requisite degree of cooperation for an award of shared physical custody, Mother's claim fails. See B.C.S., 994 A.2d 600 (vacating the custody order denying the father's request for shared physical custody, in part, because of the trial court's finding that the parents were not capable of a minimal degree of cooperation). With regard to Child's adjustment to Father's graduated custody schedule, Mother testified Child cries upon being transferred from her to Father. See N.T., 12/3/2009, at 76; N.T., 2/4/2010, at 68-69, 73. She implies that Child's behavior has been negatively affected as a result of the increased custody with Father. Mother testified, [Child] also has become violent. And I don't want to pin that on [Father]. I don't think that he is doing anything to provoke [Child] to be violent. It's just something that I have noticed about a month after [Child] started going with [Father] longer periods. He started hitting, slapping people in the face, biting, kicking, pulling hair. .. . N.T., 12/3/2009, at 77; see also N.T., 2/4/2010, at 76. Specifically, Mother testified Child's behavior worsened after his first full weekend with Father, which occurred as a result of the December 3, 2009 order. She stated that -8- 'J.A27031/10 Child was clingy upon return from Father's and did not like to be put down or changed. N.T., 2/4/2010, at 77. Mother also testified that, for the first two or three nights following his return, Child "wakes up in the middle of the night screaming, thrashing, inconsolable, screaming my name. ..." Id. at 76-77. Mother also testified Child has appeared tired and dirty upon his return. Id. at 76. In contrast, Father testified as follows: Q. Let's talk about since December 3, [2009], how have your visitations been with [Child]? A. I think they have been better than I can ever say they have been. I haven't seen any of the negative side effects which [Mother] brought up. For me, our relationship is growing stronger.... Q. Have you observed any of the antics that [Mother] has indicated that [Child] depicts when he is around you at exchanges ...? Q. The crying and the child being upset when the exchange occurs, do you see that? A. [W]hen we first had the exchanges, they were in [Mother's] house, [they] were terrible I will admit that because it was - he had all the family around him and he felt like - I felt like I was going in there and snatching him and leaving. Then we brought that up to Mrs. Deb Salem and she said, take [Child] out to the car, that way it is like [Mother is] giving -9- J.A27031/10 him to his dad. I haven't seen it to the extent that [Mother] has described.... There is times where he will cry, but as soon as she shuts the door and she is outside of the car, he stops immediately. Id. at 101-103. The trial court concluded that Child's negative response to the custody exchanges "is to be expected" and that "more repetitious visits with the Father will allow the child to adjust appropriately." Trial Court Opinion, 4/13/2010, at 16. The court found Mother's testimony regarding the negative effect on Child of Father's increased custody less credible than that of Father. See id. at 15-16. Further, we note that Mother testified Child was less upset at the most recent custody exchange on January 22, 2010. N.T., 2/4/2010, at 74-75; see Saintz, 902 A.2d at 512 (we defer to findings of the trial court with regard to issues of credibility and weight of the evidence). In light of the sustainable findings of fact, the trial court's conclusions are reasonable. Therefore, Mother's claim fails. Mother also argues that the trial court misconstrued 23 Pa.C.S.A. § 5301 in awarding shared physical custody by improperly applying a presumption in favor of equally shared custody.4 4 Section 5301 states: The General Assembly declares that it is the public policy of this Commonwealth, when in the best interest of the child, to assure a reasonable and continuing contact of the child with both -10- - J.A27031/10 It is well-established that "this Commonwealth's policy of preserving without interference the relationship between parent and child does not require equal division of physical custody between parents." Johnson v. Lewis, 870 A.2d 368, 373, n. 8 (Pa. Super. 2005) (emphasis in original). We have long held that "each child custody matter is unique and to be decided on a case-by-case basis according to the best interests of the particular child involved, without presumptions or mechanically applied rules." Id. Instantly, the trial court recognized that "there is no presumption for or against shared custody." Trial Court Opinion, 4/13/2010, at 9. The court stated, however, "the Pennsylvania legislature has recognized the value of shared custody in appropriate cases," and cited 23 Pa.C.S.A. § 5301 in support. Id. We disagree with Mother that the trial court applied a presumption in favor of shared physical custody. Rather, we conclude the court properly decided this matter on the basis of the totality of the evidence as it related to Child's best interests. See M.A.T. v. G.S.T., 989 A.2d li, 21 (Pa. Super. 2010) (en banc) (stating that shared custody is a "statutorily recognized form of relief in custody cases" pursuant to 23 Pa.C.S.A. § 5304). As such, Mother's claim fails. parents after a separation or dissolution of the marriage and the sharing of the rights and responsibilities of child rearing by both parents.... - 11 - J.A27031/10 In her second issue on appeal, Mother argues the trial court erred in totally discounting the uncontradicted expert testimony of Salem. In short, she argues the award of shared physical custody by May 21, 2010, "was without any re-evaluation of the parties' co-parenting skills and progress of [Child]." Brief for the Mother, at 28. This Court recently reiterated our established precedent that, "while a trial court is not required to accept the conclusions of an expert witness in a child custody case, it must consider them, and if the trial court chooses not to follow the expert's recommendations, its independent decision must be supported by competent evidence of record." M.A.T., 989 A.2d at 20. Instantly, the trial court denies discounting Salem's testimony. It explains as follows: The Court did in fact provide the couple with a graduated schedule. Ms. Salem in fact pointed out that her report provided "guidelines" not the rigid absolute schedule Mother deems essential. Since [Ms. Salem] had not seen the couple since completing her report on November 30, 2009, she had no information as to how the Christmas and January overnight visits went. Basically, Ms. Salem's testimony came down to the fact that at the time she was actually seeing the couple, the child had so little time with his Father that repetition of visitation was what was required. While the Court accelerated the rate of repetitive visits somewhat, it cannot be said that this Court totally discounted her expert testimony. . . . Here in fact, the Court accepted Ms. Salem's clinical impression "that there were no barriers to the parents ultimately sharing custody of [Child]." -12- J.A27031/10 Trial Court Opinion, 4/13/2010, at 13. Upon review, we conclude the trial court considered and followed Salem's recommendation in essence, i.e., a graduated custody schedule culminating in shared physical custody. With respect to Salem's custody recommendation by the time of the custody hearing, we note her testimony was as follows: Q. Your report has said not to have overnights until some distant point. We are already at a different point than what your recommendations were. A. If everything has been wonderful [with Child], stay holding where it is, expand as it continues to show that it is good. Q. How long does it have to show that it is good for it to expand? A. I think we came up with a graduated schedule that changed things about every 3 months. .. . N.T., 2/4/2010, at 46. As such, Salem's testimony implied the need to review Child's adjustment at regular intervals prior to increasing custody. Significantly, Salem possessed no knowledge with respect to Child's adjustment to the December 3, 2009 order, which was in effect and followed by the parties at the time of Salem's testimony on February 4, 2010. 1d, at 45. Competent evidence supports the court's custody award of equally shared custody by May 21, 2010. Indeed, as reflected above, Father's testimony reflects that Child is adjusting to the custody schedule -13- J.A27031/10 implemented in the December 3, 2009 order. Id. at 101-103. Further, Mother testified that Child's behavior had improved during the most recent exchange on January 22, 2010. Id. at 74-75. As such, we conclude the trial court did not err in its treatment of the expert report and testimony. Mother's claim fails.5 In her next issue, Mother argues the trial court erred in awarding shared custody based on its own personal views and experiences. Specifically, Mother cites the trial court's statement with respect to whether Father needed additional parenting classes. The court stated to Father, in relevant part: "When I was a dependency judge, I saw parents that definitely were so bad they needed the skills taught at those parenting classes. I don't feel that you are in that boat...." N.T., 2/4/2010, at 124. We discern no impropriety with this statement. Moreover, based on our review of the record, which supports the subject order, we accept the trial court's statement in its opinion pursuant to Pa.R.A.P. 1925(a) that any 5 To the extent Mother argues the trial court erred in not awarding some amount of physical visitation with each parent on a weekly basis after May 21, 2010, we disagree. See Mother's brief, at 26-27, 31. Salem implied that "there needs to be contact midweek at [Child's] age," with the parent who does not have custody that week. N.T., 2/4/2010, at 47. The trial court concluded physical midweek contact was not in Child's best interest, in part, because of the distance between the parties' homes, i.e., a 45 - 60 minute drive, and the ability for Child to have contact by telephone and Internet. See Trial Court Opinion, 4/13/2010, at 18; N.T., 12/3/2009, at 30. The trial court's conclusions are reasonable in light of the record evidence. -14- .I.A27031/10 personal insights alluded to on the record "had nothing to do with the final outcome of this case." Trial Court Opinion, 4/13/2010, at 16-17. As such, we reject Mother's claim. Finally, Mother argues the trial court erred by omitting in the subject order the monetary amount that Father owes Mother for fees incurred for Salem's services. Mother argues Father has been reluctant to reimburse her $1800.00, and he has failed to comply with the December 3, 2009 order, which instructed him to establish a payment plan. Father responds that he should only be responsible for reimbursement to Mother of $1400.00, which is half the cost of the expert evaluation and report; he contends he should not be responsible for half the costs of having Salem testify at the custody hearing. Brief for the Father, at 13-14. The trial court explained in its opinion pursuant to Pa.R.A.P. 1925(a), in relevant part: At the conclusion of the December 3, 2009 hearing, given the Father's limited income and the fact that he was paying $640.00 a month child support, the Court ordered the Father to prepare a payment plan to reimburse Mother for the evaluation cost after he had completed the 6 parenting classes he was ordered to attend. . . . At the conclusion of the February 4, 2010 hearing, after argument over whether Father was responsible for the additional $800.00 for Ms. Salem's testimony that date, the Court agreed to divide the total cost in half for a total of $1,800.00 to each party. .. . During the hearing, Father indicated that he had tried to get loans to pay for these expenses but was unsuccessful. Mother is correct that the Court did not formally enter into the custody order of February 19, 2010, that the Father pay the - 15 - VJ.A27031/10 $1800.00.... The Court has stated on the record that Father owes the $1800.00, and that final payment of the $1800.00 will be required. Since this issue did not affect in any way the Court's decision regarding what was in the best interest of the child it was not placed in the custody order. This matter will be easily and formally resolved after the custody issue is settled, and the Father's ability to pay, based on his employment and child support obligations are determined. Id. at 20-21; see also N.T., 2/4/2010, at 123. Upon review, we will not disturb the custody order on this basis. Mother may take any necessary action for reimbursement based on the December 3, 2009 trial court order. Order affirmed. Judgment Entered. Deputy Prothonotary Date: October 14, 2010 - 16- COYNE & COYNE, P.C. Lisa Marie Coyne, Esq. J °ti + ; . i 9 .L. 20111 Pa. Supreme Ct. No. 53788 3 901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 PETITIONER KYLE P. SAYERS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. AMANDA S. WEAVER, Defendant NO. No. 09-2425 Civil : CIVIL ACTION -LAW : CUSTODY PETITION TO WITHDRAW AS COUNSEL FOR PLAINTIFF TO THE HONORABLE, JUDGES OF SAID COURT: AND NOW comes, Lisa Marie Coyne, Esquire, counsel for Plaintiff and avers the following in support of her request for permission to withdraw from representation of Plaintiff in this matter. 1. On or about April 1, 2009, the Plaintiff, Kyle P. Sayers, engaged the professional services of undersigned legal counsel. 2. There are irreconcilable differences between the Petitioner and the Plaintiff. 3. There are currently no pleadings or proceedings pending in the case. 4. Plaintiff will not be prejudiced if Petitioner is allowed to withdraw from the case. 5. The Petitioner requests Court permission to withdraw from representation of Plaintiff in this matter. 6. Judge Ebert has prior involvement with this underlying custody action. WHEREFORE, the Petitioner, Lisa Marie Coyne, Esquire, to withdrawal as legal counsel of record for the Plaintiff Dated //21 ?r/h Respectfully submitted: COYNE & COYNE, P.C. By: milt (. ; isa Marie oyne, Esquire 3901 Market Street Camp Hill, PA 17011 (717) 737-0464 Pa. Supreme Ct. No. 53788 Petitioner CERTIFICATE OF SERVICE I, Lisa Marie Coyne, Esquire, of Coyne & Coyne, P.C., hereby certify that true copy of the foregoing Petition to Withdraw as Counsel was served this date upon the below-referenced individuals at the below listed address by way of first class mail, postage pre-paid: Kyle P. Sayers 117 Barrick Drive Duncannon, PA 17020 Dated: L Marie oyn , Esquire 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa. S. Ct. No. 53788 Petitioner KYLE P. SAYERS, Plaintiff V. AMANDA S. WEAVER, Defendant ? ? rv J AND NOW this day of Q,`pC Jp.?' 2011, upon consideration of Petitioner, Lisa Marie Coyne, Esquire's Petition to Withdraw as Counsel for : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. No. 09-2425 Civil CIVIL ACTION -LAW rn M CUSTODY __r ;" r" RULE TO SHOW CAUSE I Plaintiff, a Rule is issued upon the Plaintiff to show cause why the Petition should not be granted. This Rule is Returnable 20 days after Service upon the Plaintiff. By the Court: Cf.. ?Lisa Marie Coyne, Esq. ?g(3 Petitioner n a 'was Kyle P. Sayers o? Ub Respondent C) -m m :a7 C-D _q Z i= lt_?4"of V jcL COYNE & COYNE, P.C. 'j 'fit' pRONQ? : 49 1 Lisa Marie Coyne, Esq. 2011 ff-D r9 tY Pa. Supreme Ct. No. 53788 WD C4 Cu pEN`{iVANI?` 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 PETITIONER KYLE P. SAYERS, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. No. 09-2425 Civil AMANDA S. WEAVER, CIVIL ACTION -LAW Defendant CUSTODY CERTIFICATE OF SERVICE I, Lisa Marie Coyne, Esquire, of Coyne & Coyne, P.C., hereby certify that true copy of the Rule to Show Cause Issued February 2, 2011 concerning Attorney Coyne's Petition to Withdraw as Counsel was served this date upon the below-referenced individuals at the below listed address by way of first class mail, postage pre-paid: Kyle P. Sayers 117 Barrick Drive Duncannon, PA 17020 Dated: _ 2 i? COYNE & COYNE, P.C. BY: w 1-" C (Li a Marie Coyne, squire O1 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa. S. Ct. No. 53788 Petitioner a COYNE & COYNE, P.C. Lisa Marie Coyne, Esq. 2; ^ _ I P14 2• p, Pa. Supreme Ct. No. 53788 3901 Market Street a'}?'4_ ?1?0 ra' Camp Hill, PA 17011-4227 (717) 737-0464 PETITIONER KYLE P. SAYERS, Plaintiff V. AMANDA S. WEAVER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. No. 09-2425 Civil CIVIL ACTION -LAW CUSTODY MOTION TO MAKE RULE ABSOLUTE TO THE HONORABLE, M.L. EBERT, JR., JUDGE: And now comes the Petitioner, Lisa Marie Coyne, Coyne & Coyne, P.C. avers the following in support of this Motion to Make Rule Absolute: 1. On January 27, 2011, Petitioner filed a Petition to Withdraw as Counsel. 2. On February 2, 2011, this Honorable Court issued a Rule upon the Respondent, Kyle P. Sayers, to show cause why the undersigned petitioning attorney should not be permitted to withdraw and directed that the Rule be served upon the said Respondent. 3. On February 2, 2011, this Rule was certified in the Prothonotary's Office of the Common Pleas Court of Cumberland County, Pennsylvania. 4. On February 7, 2011, Service was made upon the Respondent by way of first class mail. (See Attached Exhibit "A") 5. More than twenty days has expired since the issuance of the Rule upon the Respondent and which no response has been forthcoming. WHEREFORE, the Petitioner, Lisa Marie Coyne, Esquire, respectfully prays that this Honorable Court to allow Petitioner to withdraw as counsel of record for Kyle P. Sayers. Dated: Z COYNE & COYNE, P.C. By: 61 a Marie Coyne, squire 401 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa. S. Ct. No. 53788 FILED,-OFFICE COYNE & COYNE, P.C. OF THE PROTHONOTAR'f Lisa Marie Coyne, Esq. - 2011 FEB -9 FM I : 10 Pa. Supreme Ct. No. 53788 3901 Market Street CUMBERLAND COUNTY Camp Hill, PA 17011-4227 PENNSYLVANIA (717) 737-0464 PETITIONER KYLE P. SAYERS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. AMANDA S. WEAVER, Defendant NO. No. 09-2425 Civil CIVIL ACTION -LAW CUSTODY CERTIFICATE OF SERVICE I, Lisa Marie Coyne, Esquire, of Coyne & Coyne, P.C., hereby certify that true copy of the Rule to Show Cause Issued February 2, 2011 concerning Attorney Coyne's Petition to Withdraw as Counsel was served this date upon the below-referenced individuals at the below listed address by way of first class mail, postage pre-paid: Kyle P. Sayers 117 Barrick Drive Duncannon, PA 17020 COYNE & COYNE, P.C. Dated: 2 ='J BY: Li )a Marie Coyne, squire 01 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa. S. Ct. No. 53788 Petitioner E_, ,h i 0, - I( A/I CERTIFICATE OF SERVICE I, Lisa Marie Coyne, Esquire, of Coyne & Coyne, P.C., hereby certify that true copy of the foregoing Motion to Make Rule Absolute was served this date upon the below-referenced individuals at the below listed address by way of first class mail, postage pre-paid: Kyle P. Sayers 117 Barrick Drive Duncannon, PA 17020 Dated: isa arie Coyne, Esq e arket Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa. S. Ct. No. 53788 Petitioner Z KYLE P. SAYERS, Plaintiff V. AMANDA S. WEAVER, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. No. 09-2425 Civil CIVIL ACTION -LAW CUSTODY ORDER ? AND NOW this ')h day of M m LV , 2011, it appearing that Kyle P. Sayers, Respondent, was served on February 7, 2011 a Rule to Show Cause why Attorney Lisa Marie Coyne should not be permitted to withdraw as his counsel., and upon receipt of service, Kyle P. Sayers did not answer said Rule within twenty (20) days of service of same, Petitioner, Lisa Marie Coyne, Esquire of the Law Firm of Coyne & Coyne, P.C. is hereby granted permission to withdraw as counsel of record for Kyle P. Sayers. BY THE COURT: '\?N i ?x' M.L. Ebert, Jr., J. Cf. Lisa Marie Coyne, Esq. Petitioner ? Kyle P. Sayers, °? _ ? Respondent '' '- rrI ?-Ps ma. IFS ,c., u^a-?; ''111 AR 10 AMi11:0-1 COYNE & COYNE, P.C. Lisa Marie Coyne, Esquire Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-42271 (717) 737-0464 KYLE P. SAYERS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-2425 Civil AMANDA S. WEAVER, CIVIL ACTION-LAW Defendant CUSTODY To the Prothonotary: In accordance with the Order of this Court, dated March 2, 2011, kindly withdraw the appearance of Lisa Marie Coyne Esquire as Attorney of Record for the Plaintiff. ! Respectfully submitted: i COYNE & COYNE, P.C. Dated: B sa Marie Coyne, E uire Pa. S. Ct. No. 5378 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Petitioner FILED-OFFICE - THIE PROTHONOTARY 2011 "?'t 2 AIM 11: 3 4 OU PENNSYLVAN IA TY Pleading Prepared and Submitted by: Custody Modification and Contempt Petition Diane G. Radcliff, Esquire Assigned Judge: The Honorable M.L. Ebert, Jr. Attorney for Plaintiff Lisa Marie Coyne, Esquire 3901 Market Street, Camp Hill, PA 17011 Phone: 717-737-0464 Fax: 717-737-5161 Attorney for Defendant Diane G. Radcliff, Esquire, 3448 Trindle Road Camp Hill, PA 17011 Email: dianeradcliffa-comcast. net Phone: 717-737-0100 Fax: 717-975-0697 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY KYLE PHILLIP SAYERS Plaintiff NO. 09-2425 CIVIL TERM vs. : CIVIL ACTION - LAW AMANDA SUE WEAVER Defendant : IN CUSTODY PETITION FOR MODIFICATION AND CONTEMPT FOR DISOBEDIENCE OF CUSTODY ORDER-DATED FEBRUARY 4, 2010 TO THE HONORABLE, THE JUDGES OF THE SAID COURT: AND NOW, , 2011, Amanda Sue Weaver, the Petitioner, hereby files the above referenced Petition, and respectfully represents that: 9) ate} sr,?o.o?t 644 4937 roit v2S97 - 3 - 1. Your Petitioner is Amanda Sue Weaver, residing at 612 Southview Drive, Mechanicsburg, PA 17055-5203. Petitioner is hereinafter referred to as "Mother". 2. Your Respondent is Kyle Phillip Sayers, residing at 117 Barrick Drive Duncannon, PA. Respondent is hereinafter referred to as "Father". 3. Mother and Father are the parents of a minor child, Grady James Weaver, (Age 2, DOB: xx/xx/2008) "the Child". 4. On February 4, 2010, the Honorable M.L. Ebert, Jr. entered an Order of Court pertaining to custody of the Child. That Order is hereinafter referred to as the "2/4/10 Custody Order". A true and correct copy of the 2/4/10 Custody Order is attached hereto, marked Exhibit "A" and incorporated by referenced hereto. COUNTI MODIFICATION OF 2/4/10 CUSTODY ORDER 5. Mother incorporates by referenced the averments set forth in paragraphs 1-5 of this Petition the same as if fully set forth herein. 6. Mother seeks modification of the 2/4/10 Custody Order, and in support thereof, Mother avers that the 2/4/10 Custody Order should be modified because: a. Mother is a teacher and believes that she should be able to provide care for the child during father's work hours in the summer and other school breaks when she is not working or any other time when father is unavailable for a period in excess of 4 hours. b. The parties have two day care providers: one during Mother's week and one during father's week. Each party must pay for their provider even during the period when the child is in the other party's care and custody. Mother avers that a single day care provider should be used by both parties. Since Father's work is near Mother's home, she believes her day care provider should be chosen and utilized during the school year. C. Father placed the child in a day care without consultation with Mother. The day care refuses to provide Mother with information. Mother should be listed as an emergency contact person with the day care or wherever and whenever -4- the child is placed in the care of a third party and the 2/4/10 Custody Order should be clarified so as to require the day care to provide Mother with information. d. Mother has a family trip planned in 2012. That trip will be approximately 9 days long. She would like the Order to allow her to take the child on that trip. She is willing to give Father the same amount of time for a vacation with the child. e. Father owes Mother $1,800 for his share of the costs incurred for the evaluation by Deb Salem. Father has not yet paid that amount. The Order needs to be modified to include a provision requiring that payment and setting up a payment plan. 7. Mother requests that the 02/04/2010 Order be modified as follows: a. Mother be permitted to care for the child during father's work hours in the summer and other school breaks when she is not working. b. The parties be directed to use Mother's day care provider to care for the child during their work hours except for the times when Mother would be watching the child as set forth above. C. A parent shall provide complete contact information regarding both parents whenever emergency or contact information is requested by any school, daycare provider or treating professional by form, or otherwise. The parents shall be listed as persons to be contacted before any third party. d. Both parents shall be entitled to equal access to the child's school, medical, dental and other important records. If, despite this Order, any service provider or professional still requires a release of a parent to access the child's day care, educational, religious or medical information, both parents shall execute a release within ten (10)days of any written request by a parent or his or her counsel. e. Father shall reimburse Mother the amount of $1,800 as his share of Deb Salem's costs in 12 equal monthly installments of $150 each commencing on June 1, 2011. - 5 - WHEREFORE, Petitioner-Mother respectfully requests this Honorable Court to modify the 02/04/2010 Order in accordance with the requests of the Petitioner-Mother set forth in this Petition. COUNT II CONTEMPT FOR DISOBEDIENCE OF 02/04/2010 ORDER 8. Paragraph 1 of the 2/4/10 Custody Order contains the following provisions regarding the award of shared legal custody of the child to the parties jointly: a. "Major decisions concerning their child including, but not necessarily limited to, the child's health welfare education religious training and upbringing are to be made by them jointly, after discussion and consultation with each other..." b. "Each party shall not impair the other party's rights to shared legal custody" C. "Each shall notify the other of any activity or circumstance concerning their child that could reasonable be expected to be of concern to the parent then having physical custody..." d. Each party shall be entitled to complete and full information from any doctor, dentist, teacher, professional or authority ..." 9. Father has willfully failed to abide by the foregoing legal custody terms of the 2/4/10 Custody Order in that: a. Father placed the child in a day care without consulting or making a joint decision with Mother. b. Father failed and refused to list Mother as a contact person at the day care or direct them to provide information to mother as a result of which the day care refuses to give mother information regarding the child. 10. Paragraph 6 of the 2/4/10 Custody Order contains the following provision regarding telephone contact: "Both parents shall have liberal and reasonable telephone contact with the child while the child is in the custody of the other parent." 11. Father has willfully failed to abide by the foregoing legal custody terms of the 2/4/10 Custody Order in that he has failed to provide mother with a right to speak with the -6- child when she calls the child at his home. WHEREFORE, Petitioner requests that Respondent-Father be held in contempt of court for his willful disobedience of the 2/4/11 Custody Order. Respectfully submitted, DIA E G. RA CLIFF, "IRE 3448 oad C Camp Hill, PA 1 7011 Phone: (717) 737-0100 Supreme Court ID # 32112 Attorney for Petitioner-Defendant -7- VERIFICATION I verify that the statements made in this foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification to Date.- ? .2,3 ' /01 J -8- EXHIBIT "A" 02/04/2010 CUSTODY ORDER -9- KYLE PHILLIP SAYERS, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. AMANDA SUE WEAVER, DEFENDANT NO. 09-2425 CIVIL IN RE: CUSTODY ORDER OF COURT AND NOW, this 4"' day of February, 2010, after hearing in the above captioned matter, IT IS HEREBY ORDERED AND DIRECTED: 1. Legal Custody: The Mother, Amanda S. Weaver and the Father, Kyle P. Sayers, shall enjoy shared legal custody of Grady James Weaver, born June 11, 2008. Major decisions concerning their child, including, but not necessarily limited to, the child's health, welfare, education, religious training and upbringing shall be made by them jointly, after discussion and consultation with each other, with a view toward obtaining and following a harmonious policy in the child's best interest. Each party shall not impair the other party's rights to shared legal custody of the child. Each party shall not alienate the affections for the child from the other party. Each party shall notify the other of any activity or circumstance concerning their child that could reasonably be expected to be of concern to the .parent then having physical custody. With regard to any emergency decisions that must be made, the parent having physical custody of the child at the time of the emergency shall be permitted to make any immediate decisions necessitated thereby. However, that parent shall inform the other of the emergency and consult with him or her as soon as thereafter possible. Each party shall be entitled to complete and full information from any doctor, dentist, teacher, professional or authority and to have copies of any reports given to either party as a parent. 2. Physical Custody: 1. Until May 21, 2010, Mother shall have primary physical custody of the child. 2. Until May 21, 2010, Father shall have custody of the child as follows: a. Each Tuesday evening from 5:30 until 8:30 p.m. Father shall provide all transportation for this visit. b. Weekend Schedule: 5:00 p.m. February 26, 2010 until 8:00 a.m. March 1, 2010 1:30 p.m. March 14, 2010 until 8:00 a.m. March 15, 2010 5:00 p.m. March 19, 2010 until 8:00 a.m. March 22, 2010 1:30 p.m. March 28, 2010 until 8:00 a. m. March 29, 2010 5:00 p.m. April 2, 2010 until 8:00 a.m. April 5, 2010 1:30 p.m. April 11, 2010 until 8:00 a.m. April 12, 2010 5:00 p.m. April 16, 2010 until 8:00 a.m. April 19, 2010 1:30 p.m. April 25, 2010 until 8:00 a.m. April 26, 2010 5:00 p.m. April 30, 2010 until 8:00 a.m. May 3, 2010 1:30 p.m. May 9, 2010 until 8:00 a.m. May 10, 2010 3. Joint Physical Custody: Beginning on Friday, May 21, 2010, the parties will exercise joint physical custody of the child on a week-on, week-off basis. Father will begin his period of custody at 5:00 p.m. on Friday, May 21, 2010. Mother will begin her week at 5:00 p.m. on Friday, May 28, 2010. Exchanges of custody will take place at the Radisson Hotel in Camp Hill. 4. Holiday schedule: The following holiday schedule shall supersede the regular periods of custody. 1. New Year's Day - The parties shall alternate the New Year's Day holiday, with Mother having this holiday in even numbered years from 4:00 p.m. until 8:00 p.m. and Father will have this holiday in odd numbered years from 4:00 p.m. until 8:00 p.m. 2. Thanksgiving Day - The parties shall alternate the Thanksgiving Day holiday with Father having even numbered years and Mother having odd numbered years, with the non custodial parent having the child on the day from 2:00 p.m. until 8:00 p.m. 3. Christmas - The parties will alternate the Christmas Holiday with Father having custody in even numbered years on from 5:00 p.m. on December 24 until 2:30 p.m. December 25. Mother will then have custody from 2:30 p.m. on. December 25 until 8:00 p.m. on December 26. In odd numbered years, Mother will have custody from 5:00 p.m. on December 24 until 2:30 p.m. December 25. Father will then have custody on from 2:30 p.m. December 25 until 8:00 p.m. on December 26. 4. Easter - Each year, Mother shall have custody on the Saturday before Easter at 4:00 p.m. until Easter Sunday at 2:00 p.m. On Easter Sunday, Father shall have custody from 2:00 p.m. until 8:00 p.m. 5. Memorial Day and Labor Day - Father shall have each Memorial Day and Labor Day holidays from 10:00 a.m. until 8:00 p.m. 6. Fourth of July - Mother shall have each Fourth of July holiday from 10:00 a.m. until 8:00 p.m. 7. Trick-or-Treat Night - The child shall alternate Trick-or-Treat at the parents residence each year, assuming this night is the same for both Mother's and Father's residences. Father shall have Trick-or-Treat in even numbered years and Mother shall have Trick-or-treat Night in odd numbered years. Trick or Treat Night shall be from 5:00 p.m. until 8:30 p.m. Both parties shall be permitted to participate in Trick or Treat Night regardless of whether it is exercised at Mother's home or Father's home. 8. Mother's Day - Mother shall have each Mother's Day from 10:00 a.m. until 8:00 p.m. 9. Father's Day - Father shall have each Father's Day from 10:00 a.m. until 8:00 p.m. 10. Father's Birthday (January 24) - In the event Father's birthday occurs during his non-custodial time, he shall be permitted to have the child from noon until 8:00 p.m. 11. Mother's Birthday (April 30) - In -the event Mother's birthday occurs during her non-custodial time, she shall be permitted to have the child from noon until 8:00 p.m. 12. Grady's Birthday (June 11) - The non-custodial parent shall have the child from 4:00 p.m, until 8:00 p.m. 5. Nonalienation: Neither parent shall do or say anything, which may estrange the child from the other parent, injure the opinion of the child as to the other parent or hamper the free and natural development of the child's love and respect for the other parent. 6. Telephonic Contact: Both parents shall have liberal and reasonable telephone contact with the child while the child is in the custody of the other parent. In the event that either party has a change in their telephone number or terminate telephone service, they will inform the other party within 24 hours of the change. 7. Alcohol, Tobacco _or Controlled Substance Usage: Neither party shall consume alcohol, smoke, or use illegal controlled substances or be under the influence of either when the child is -in their custody nor will the parent allow third parties to smoke, use illegal controlled substances or consume alcohol in the presence of the child when the child is in the custody of the parent. 8. Transportation: The Parties shall exchange custody at the Radisson Hotel in Camp Hill unless they mutually agree to other arrangements. By the Court, 114? Lisa Marie Coyne, Esquire Attorney for Plaintiff Christine T. Brann, Esquire Attorney for Defendant bas M. L. Ebert, Jr., J. TRUE COPY FROM RECORD In Testimony whereof, I here unto set my hand and the of Sald Carlisle, Pa. This of' 20 I_ Prothon ry cl KYLE PHILLIP SAYERS, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-2425 AMANDA SUE WEAVER, CIVIL ACTION -LAW Defendant IN CUSTODY CERTIFICATE OF SERVICE I, Christine Taylor Brann, Esquire, of James, Smith, Dietterick & Connelly, LLP attorney for the Defendant, Amanda S. Weaver, hereby certify that I have served a copy of the foregoing Motion for Reconsideration on the following on the date and in the manner indicated below: VIA HAND DELIVERY The Honorable M.L. Ebert, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 VIA U.S. MAIL. FIRST CLASS PRE-PAID Lisa M. Coyne, Esquire Coyne & Coyne 3901 Market Street Camp Hill, PA 17011 JAMES, SMITH, DIETTERICK & CONNELLY, LLP Dated: By: Christine Taylor Brann, Esquire Attorney I.D. #82204 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 KYLE PHILLIP SAYERS, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-2425 AMANDA SUE WEAVER, CIVIL ACTION -LAW Defendant : IN CUSTODY CERTIFICATE OF SERVICE I, Christine Taylor Br=4 Esquire, of James, Smith, Dietterick & Connelly, LLP attorney for the Defendant, Amanda S. Weaver, hereby certify that I have served a copy of the foregoing Motion for Reconsideration on the following on the date and in the manner indicated below: VIA HAND DELIVERY VIA U.S. MAIL. FIRST CLASS PRE-PAID The Honorable M.L. Ebert, Jr. Lisa M. Coyne, Esquire Cumberland County Courthouse Coyne & Coyne One Courthouse Square 3901 Market Street Carlisle, PA 17013 Camp Hill, PA 17011 JAMES, SMITH, DIETTERICK & CONNELLY, LLP Dated: */_/6 By: -Christine Taylor B quire Attorney I.D. #82204 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280