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HomeMy WebLinkAbout09-5056McNEES WALLACE & NURICK LLC BY: J. Paul Helvy Attorney ID No. 53148 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5343 (717) 260-5300 phelvy(aD-mwn.com Attorneys for Plaintiff BRYAN P. FRATELLO, Plaintiff V. AMY E. FRATELLO, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. IN CUSTODY Defendant NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in court. If you wish to defend against the claims set forth in the foregoing pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree in divorce or annulment may be entered against you by the court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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, PA 17013 (717) 249-3166 McNEES WALLACE & NURICK LLC By Itul Helvy rney ID No. Attorneys for Plai Dated: July 23, 2009 McNEES WALLACE & NURICK LLC By: J. Paul Helvy Attorney ID No. 53148 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5343 (717) 260-5300 facsimile phelvya-mwn.com Attorneys for the Plaintiff BRYAN P. FRATELLO, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA - - NO. O q - a-61P ?j AMY E. FRATELLO, Defendant IN CUSTODY COMPLAINT FOR CUSTODY 1. The Plaintiff is Bryan P. Fratello, ("Father"), who currently resides at 5792 Tortuga Road, San Diego, CA 92124. 2. The Defendant is Amy E. Fratello, ("Mother), who currently resides at 1410 Country Road, Mechanicsburg, Cumberland County, PA 17055. 3. Plaintiff seeks shared legal custody and visitation of the following child: Name Present Address(es) Age(s) Elaina Ann Fratello 1410 Country Road 14 (dob 12/5/94) Mechanicsburg, PA 17055 4. The child was not born out of wedlock. 5. The child is presently in the custody of Mother, who currently resides at 1410 Country Road, Mechanicsburg, PA 17055. 6. Since birth, the child has resided with the following persons at the following addresses: LIST ALL PERSONS LIST ALL ADDRESSES DATES Amy E. Fratello and 1410 Country Road 4/08-present William Deitman Mechanicsburg, PA 17055 Amy E. Fratello 321 Stonehenge Lane 4/07-3/08 Mechanicsburg, PA 17055 Amy E. Fratello and 1825 Pinetown Road 1/05-3/07 Theodore S. Fullerton Wellsville, PA 17365 Amy E. Fratello 375 Stonehenge Lane 10/02-12/04 Mechanicsburg, PA 17055 Amy Fratello-Martz, 4173 Fellsland Drive 6/02-9/02 Jay Martz and Jay's Colorado Springs, CO 80922 3 children Amy E. Fratello 8516 Forester Blvd. 5/98-5/02 Springfield, VA 22152 Amy E. Fratello Apartment 8/96-4/98 Springfield, VA Amy E. Fratello and 6242 Hidden Woods Ct. 12/94-8/96 Bryan Fratello Springfield, VA 22152 7. The mother of the child is Amy E. Fratello, who currently resides at 1410 Country Road, Mechanicsburg, PA 17055. She is unmarried. 8. The father of the children is Bryan P. Fratello, who currently resides at 5792 Tortuga Road, San Diego, CA 92124. He is unmarried. 2 9. The relationship of Plaintiff to the child is that of father. Plaintiff currently resides with the following person(s): Name(s) Relationship Kathryn J. Harkness Girlfriend 10. The relationship of Defendant to the child is that of mother. Defendant currently resides with the following person(s): Name(s) Relationship William Deitman Boyfriend Elaina Ann Fratello Daughter 11. On February 11, 1997, the parties entered into a Property Settlement Agreement that contained provisions regarding the custody of the child at paragraphs 21 and 22 (see excerpts from the Property Settlement Agreement attached hereto). 12. The aforesaid Property Settlement Agreement was filed of record with the Cumberland County Prothonotary on October 19, 2007. 13. Other than as set forth herein, Plaintiff has not participated as a party or witness, or in another capacity, in other litigation concerning the custody of this child in this or another court. 14. Other than is set forth herein, Plaintiff does not know of a person nor a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child. Mother has failed to cooperate with Father regarding his efforts to schedule and spend time with the child. 3 15. The best interest and permanent welfare of the child will be served by the following custody arrangement: (a) The parties shall continue to share legal custody of the child; (b) Mother shall have primary physical custody of the child; (c) Father shall have reasonable visitation with the child consistent with Paragraphs 21 and 22 of the parties' Property Settlement Agreement dated February 11, 1997. 16. 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. No other persons are known to have or claim a right to custody or visitation of the child. WHEREFORE, Plaintiff respectfully requests that the Court grant him shared legal custody and reasonable visitation with the child as outlined in Paragraphs 21 and 22 of the parties' signed Property Settlement Agreement dated February 11, 2007. Respectfully submitted, MCNEES WALLACE & NURICK LLC By: ATtorney ID No. 531 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5475 Dated: July 23, 2009 Attorneys for Plaintiff 4 DATE PROPERTY SETTLEMENT AGREEMENT - JUDGE - CASE # THIS AGREEMENT, made and entered into this _ I 0 day of 19q/ by and between BRYAN P. FRATELLO, hereinafter referred to as the Husb and AMY E. FRATELLO, hereinafter referred to as the Wife. WITNESSETH WHEREAS, the parties hereto were married on the 16th day of March, 1991, in Idaho Falls, Idaho and have been and are now husband and wife; and WHEREAS; there is one child of this marriage, namely ELAINA ANN FRATELLO, born December 5, 1994. WHEREAS, the Wife was not pregnant on the date of separation stated herein, and WHEREAS, differences have arisen between them, and the relations between the parties are and have been of such a nature as to render the separation a matter of necessity for the health, welfare and happiness of both, on account of which the parties separated on August 10, 1996, and intend to live separate and apart for the rest of their natural lives; and WHEREAS, it is the desire of both finally and for all time to settle, adjust, compromise, and determine their property rights, all rights of support and maintenance by either party against the other by reason of their marriage, all dower, curtesy, alimony, property, and homestead rights, and any and all other rights existing between the parties growing out of the marriage relation. NOW THEREFORE, in consideration of the premises, the considerations hereinafter mentioned, the mutual promises herein made and acts to be performed by them, the parties have agreed as follows: 1. SEPARATION OF THE PARTIES: The parties may and shall at all times after the date of permanent separation live and continue to live separate and apart for the rest of their natural lives. Each shall be free from interference, authority and control, either direct or indirect, by the other as fully as if he or she is single and unmarried. Subject to the provisions of this agreement, each may reside with such person or persons, friends or relatives as he or she may select. The parties shall not molest each other or compel or endeavor to compel the other to cohabit or dwell with him or her. This separation took place with mutual consent. It may not be used as the basis for a charge of desertion or constructive desertion against either party. Each party agrees not to seek a divorce from the other on any ground except a no-fault ground based upon a marital separation. 2. ACCEPTANCE AND MUTUAL RELEASE: Each of the parties receives the property set apart to him or her and the undertakings hereof in full and complete settlement and release of all claims and demands of every kind, name or nature against the other party hereto, including all liability now or at any time hereafter existing or accruing on account of maintenance, alimony (tempo or 97`nt), dower, curtesy, equitable distributio f property, or other allowances, B YAN V. FRATELLO AMY E. FRATELLO Page 1 of 12 Pages 21. JOINT CUSTODY: The parties agree that it is in the best interest of the minor child that the responsibility for the care and custody of said child be shared jointly. The parries understand that the term "joint custody" means that both parties have equal rights concerning and responsibilities to their minor child and that neither party's rights are superior. The parties further understand that this agreed custody arrangement is subject to the orders of the appropriate Court. In accordance with their joint responsibilities, the parties shall consult and agree with each other with respect to the minor child's discipline, education and religious training, summer camp selection, illnesses and operations (except in emergencies), health, welfare and other important matters affecting said child. a. SCHEDULE OF RESIDENCE. The primary residence of the minor child shall be with the Wife. It is the intent of the parties that the physical residence of the minor child shall always be subject to the agreement of the parties and in consideration of the wishes of the minor .child. b. PARENTAL CONTACT. The parties agree that it is in the best interest of the child to provide the maximum opportunity for parent/child contact with the parent not in residence with the child and that such contact shall be determined by mutual- agreement with the other party. It is understood that the parent/child contact should include reasonable notice by the nonresidential parent of his intent to exercise the parent/child contact and that the child's desires should be taken in to account. Maximum opportunity for parent/child contact further implies that each party shall follow through on any parent/child plans agree upon, but if circumstances beyond control make planned contact impossible, notice of cancellation of contact shall be made with the same consideration for each other that is presumed in the initial arrangements for parental contact. In the event that either party moves, the parties agree to set forth reasonable and specific visitation rights, in writing and subject to the review of the District Court. c. ADDRESS AND TELEPHONE NUMBERS. Each party shall keep the other party informed of his or her current home address, home telephone number, business address and business telephone number. d. DISCLOSURE OF EXTENDED ABSENCE. Each party shall inform the other of any plans for travel or prolonged absence involving the minor child. e. ILLNESS. Each parent shall promptly notify the other in the event of any illness or disability affecting the child residing with that parent. In the event that one parent believes that the Child requires physical or psychological therapy and the other parent disagrees, the matter shall be presented to a professional psychologist/therepoist for determination. If the psychologist/therapoist approves or recommends such treatment, the treatment shall be rendered. The parties shall share the cost of such treatment. f. MEDICAL INFORMATION. Each parent shall be entitled to receive complete information from any physician attending the child and to be furnished with copies of any reports given furnishing the said information. BR AN P. TELLO (??, (, , C - ? ?, , /- ello AOY E. FRATELLO Page 8 of 12 Pages 22. VISITATION OF THE CEMD: The Husband shall have reasonable visitation with the said child, and he shall give the Wife reasonable notice of his intention to exercise said visitation and he shall advise the Wife of where he is taking the child and the time when they will return. The Husband shall have the right to a thirty (30) day visit during the child's summer vacation; the Husband may take the child away from the Wife's residence. The Husband shall have the right, during alternate years, to visitation during the Christmas holiday season. This visitation shall begin at 6:00 p.m. on December 19th or as soon as the child is out of school on Christmas recess and extend to 6:00 p.m. on December 26th or seven (7) days after the child is released from school, whichever comes later. The Husband may take the child from the Wife's residence during this visitation. The Husband shall have the right, during alternate years, to visitation during Thanksgiving. This visitation shall begin Thanksgiving Day and extend through Sunday of that week; again the Husband may take the child from the Wife's residence. The Husband agrees to give 48 hours notice prior to effecting visitation. It is the intention of the parties that visitation •during the Thanksgiving and Christmas holidays be exercised by the Husband during one but not both of those holidays in a given year. Failure of the Husband to exercise visitation in accordance with the minimum provisions set forth herein does not constitute waiver of his visitation rights for any subsequent year. The parties agree that Husband's visitation shall not be restricted due to the distance between Husband's and Wife's residence. Wife agrees that Husband's parents may transport child to his residence for visitation. 23. SUPPORT FOR THE CIRLD: The Husband agrees to pay the Wife the sum of $950.00 per month, commencing on August 15, 1996, (payable in equal installments of $475.00 paid on the 1 st and 15th day of each month) until such time as each child attains the age of 18 years, dies, marries, becomes self-supporting, no longer make her primary place of residence with the Wife, or is otherwise sooner emancipated, whichever occurs first, except that the aforesaid amounts shall continue to be due and payable for any child who is not otherwise emancipated but who becomes 18 years of age before graduating from high school. In that case, the payments shall continue until the child graduates from high school, but in no case beyond the child's 20th birthday. Upon the happening of any of the forgoing events, the child support payment to the Wife shall cease. The parties agree that Child support payments due under this paragraph shall be recalculated on April 15th of each year beginning in 1998 (with the new amount being paid in equal installments on the lst.and 15th day of each month beginning on May 1st of that year). The new amount shall be the determined according to the Virginia Child Support Guideline model. If the parties cannot reach an agreement concerning this amount, a court of competent jurisdiction may set the amount of support for the child. 24. COUNSEL: Both the legal and practical effect of this agreement in every respect and the financial status of the parties has been fully explained to both parties by legal counsel of his or her own independent choice, and both parties acknowledge that this agreement is fair, reasonable, and satisfactory to each, and is not the result or any fraud, duress or undue influence exercised by either party upon the other or by any other person or persons upon either; and each has signed this Agreement voluntarily and freely without any reservation whatsoever. BR AE. FRATELLO Page 9 of 12 Pages IN WITNESS WHEREOF, The parties have signed and acknowledged this agreement in duplicate originals as of the day and year written below their respective signatures. BRYAN LO Date: In )=,E{3 7:2 ? -5 le// AMY E. TELL Date: --STATE OFT ?o COUNTY OF to wt: the undersigned Notary Public, in and for the foregoing jurisdiction, do hereby certify that BRYAN P. FRATELLO whose name is signed to the foregoing property settlement agreement, has personally appeared before me in my jurisdiction aforesaid and acknowledged the same. GIVEN under my hand this day of li" 19 -7 v L_ ( S Public My Commission expires: 5a , STATE OF V U14 (Al 0- COUNTY OF to Wit: ? ?Gtru. rv?-N f? Q,rn es the undersigned otary Public, in and for the foregoing jurisdiction, do hereby certify that AMY E. FRATELLO whose name is signed to the foregoing property settlement agreement, has personally appeared before me in my jurisdiction aforesaid and acknovt?"Tr- GIVEN under my hand this 1-h_ JOHN T. FREY, CLERK day of r Cy 19 . BY. p4-3 le Notary Public - - ^- Original retained in the office of y 3L?. qq the Clerk' of the Circuit Co, of My Commission expires: Fairf" Gbutit Y. Virginia L. F BR AN P. PkATELLO AMY E. FRATELLO Page 12 of 12 Pages R -Q (7? J v n ? C S `i 4?1 N ?7 VERIFICATION I verify that the statements made in the 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 authorities. Date: -71-z-1 d (?rf Fit,-,(-7F- U O Fi_... ,h Tr, nV I ti LLJ? '311L ^ '-4 c' r E q *lips. 5o f?,p pTN C-0 IBa117 a* 9,2640S BRYAN P. FRATELLO IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. 2009-5056 CIVIL ACTION LAW AMY E. FRATELLO IN CUSTODY DEFENDANT ORDER OF COURT AND NOW, Wednesday, July 29, 2009 upon consideration oil' the attached Complaint, it is hereby directed that parties and their respective counsel appear before Hubert X. Gilroy, Esq. , the conciliator, at__ 4th Floor, Cumberland Count Courthouse, Carlisle_ on Friday, August 21, 2009 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 Custodv orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ Hubert X. Gilro 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 rF THE r 1', 2009 JUL 2 9 NI 2: 22 CUt 7-a?o?" 4,14 McNEES WALLACE & NURICK LLC By: J. Paul Helvy Attorney ID No. 53148 100 Pine Street Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 facsimile phelvy a-mwn.com Attorneys for Plaintiff BRYAN P. FRATELLO, Plaintiff v. AMY E. FRATELLO, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-5056 Civil IN CUSTODY AFFIDAVIT OF ACCEPTANCE OF SERVICE I hereby accept service of the Complaint in the above matter. Dated: D?Ny\'?A L Amy E. Fratebo (A931503:1) kz axn AUG 2.5 2009 BRYAN P. FRATELLO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW AMY E. FRATELLO, NO. 2009-5056 Defendant IN CUSTODY COURT ORDER AND NOW, this Z&, day of August, 2009, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. The father, Bryan P. Fratello, and the mother, Amy E. Fratello, shall enjoy shared legal custody of Elaina Ann Fratello, born December 5, 1994. 2. The mother shall enjoy primary physical custody of the minor child. 3. The father shall enjoy periods of temporary physical custody of the minor child at such times and under such circumstances as agreed upon by the parties. 4. The parties shall retain a counselor who shall serve for the sole purpose of reunification counseling to address the existing issues between father and daughter and work towards a resolution of those issues. The intent of this counseling is to result in an arrangement whereby the father and daughter will be able to work out an appropriate and meaningful visitation schedule for the daughter to visit with her father. This counselor may share the results of the counseling sessions with both parties and legal counsel for both parties. Additionally, this court order specifically authorizes any other counselor of the minor child to share their information with the reunification counselor. In the event the parties are unable to work out an arran gement on payment of costs for this reunification counseling, legal counsel for the parties shall contact the Conciliator who may file a supplemental report with the court and recommend an order addressing the allocation of costs. 6. It is the intention of the counseling as set forth above to result in some arrangement whereby a custody schedule is set such that father will have periods of temporary custody with his daughter. In the event the parties are unable to agree upon some schedule, legal counsel for the parties may contact the Custody Conciliator to schedule a telephone conference with the Conciliator. The Conciliator may at that time refer this case to the court for a hearing to address the issue of father's visitation with the minor daughter. BY THE COURT, Judge cc: J. Paul Helvy, Esquire Mark T. Silliker, Esquire OF THE 11'F" .") I - l",?lo-iAPY 2009 AUG 27 A M10:09 1 LE`Jlti.`'< % ' It BRYAN P. FRATELLO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. : CIVIL ACTION - LAW AMY E. FRATELLO, NO. 2009-5056 Defendant IN CUSTODY CONCILIATION CONFERENCE SUMMARY REPORT IN ACCORDANCE WITH THE CUMBERLAND COUNTY RULE OF CIVIL 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: Elaina Ann Fratello, born December 5, 1994. 2. A Conciliation Conference was held on August 21, 2009, with the following individuals in attendance: The father, Bryan P. Fratello, who appeared with his counsel, J. Paul Helvy, Esquire, and the mother, Amy E. Fratello, who appeared with her counsel, Mark T. Silliker, Esquire. 3. The parties agree to the entry of an Order in the form as attached. Date: August ) 2009 '??( &Zi? Hubert X. Gilr , Esquire Custody Co z