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HomeMy WebLinkAbout09-6391DAVID G. KENNERLY, :IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :CIVIL ACTION - LAW :CUSTODY KIMBERLY A. KENNERLY, Defendant :NO. Q 9 _ (0 3 / / C2'?• `?t,/??? COMPLAINT FOR CUSTODY AND NOW comes the Plaintiff, David G. Kennerly, who, by and through his attorneys, Elizabeth S. Beckley, Esquire, Charles O. Beckley, Il, Esquire, and Beckley & Madden, of Counsel, files this Complaint for Custody, in which he avers that: 1. Plaintiff, David G. Kennerly, is an adult individual residing at 6307 Valleybrook Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant, Kimberly A. Kennerly, is an adult individual and, upon information and belief, resides at 6307 Valleybrook Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Plaintiff seeks shared physical and joint legal custody of the following children: Name Date of Birth Residence Payton D. Kennerly 12/5/1995 Father and Mother Jackson C. Kennerly 7/6/1998 Father and Mother Zoe R. Kennerly 3/26/2001 Father and Mother The oldest child was born out of wedlock. The younger two children were not born out of wedlock. The Children are presently in the custody of both their Father, David G. Kennerly and their Mother, Kimberly A. Kennerly, who resides at 6307 Valleybrook Drive, Mechanicsburg, Cumberland, Pennsylvania 17050. 1 4. During the past five years, the children have resided at the following addresses with the individuals indicated: Persons liviniz with children Address Dates Father and Mother 6307 Valleybrook Drive 2005 to present Mechanicsburg, PA 17050 5. Plaintiff is the Father of the children and he currently resides with the children at 6307 Valleybrook Drive, Mechanicsburg, Pennsylvania 17050. He is married. 6. Defendant is the Mother of the children and she currently resides with the children and the Plaintiff at 6307 Valleybrook Drive, Mechanicsburg, Pennsylvania 17050. Upon information and belief, Defendant has leased a residence in Elizabethville, Dauphin County, Pennsylvania, and intends to move there in the next two weeks with the children without Father's consent. She is married. 7. The relationship of plaintiff to the children is that of Father. The Plaintiff currently resides with the following persons: Name Kimberly A. Kennerly Payton D. Kennerly Jackson C. Kennerly Relationship Spouse Son with Defendant Son with Defendant Zoe R. Kennerly Daughter with Defendant 8. The relationship of defendant to the children is that of Mother defendant currently resides with the following persons: Name Relationship David G. Kennerly Spouse Payton D. Kennerly Son with Defendant Jackson C. Kennerly Zoe R. Kennerly Son with Defendant Daughter with Defendant 2 The 9. Plaintiff has not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the children in this or another court. Plaintiff has no information of a custody proceeding concerning the children pending in a court of this Commonwealth or any other state. Plaintiff does not know of a person not a party to the proceedings who has physical custody of the children or claims to have custody or visitation rights with respect to the children. 10. The best interest and permanent welfare of the children will be served by granting the relief requested because: Plaintiff has been an active participant in his children's lives and the parties agree it is the children's best interest for them to share custody of their children. 11. Each parent whose parental rights to the children have not been terminated and the person who has physical custody of the children have been named as parties to this action. WHEREFORE, Plaintiff requests that the Court grant him shared physical custody and joint legal custody of the parties' minor children. /7 11 e? ? Respectfully submitted, DATED: 7 of Counsel BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 (717) 233-7691 3 VERIFICATION- I, David G. Kennerly, hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. -??- / DATED: David G. Kennerly ? ,t ter ^F ?HE Zuu9 SEP 24 Pig ! -, 55 4g's..sv CK-4 I q93 DAVID G. KENNERLY, :IN THE COURT OF COMMON PLEAS OF Plaintiff/Petitioner :CUMBERLAND COUNTY, PENNSYLVANIA V. :CIVIL ACTION - LAW :CUSTODY KIMBERLY A. KENNERLY, Defendant/Respondent :NO. 09-4-341 ?1C-1 lG EMERGENCY PETITION FOR SPECIAL RELIEF AND NOW comes the Plaintiff/Petitioner, David G. Kennerly, who, by and through his attorneys, Elizabeth S. Beckley, Esquire, Charles O. Beckley, Il, Esquire, and Beckley & Madden, of Counsel, files this Emergency Petition for Special Relief Pursuant to Pa.R.C.P. 1915.13, in which he avers that: 1. Petitioner, David G. Kennerly, is an adult individual residing at 6307 Valleybrook Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Respondent, Kimberly A. Kennerly is an adult individual currently residing at 6307 Valleybrook Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Petitioner and Defendant are husband and wife, having been married on October 26, 1996. 4. Petitioner and Defendant are the parents of three minor children, Payton D. Kennerly, age 13, Jackson C. Kennerly, age 11, and Zoe R. Kennerly, age 8. Payton currently attends the 8d' grade at Good Hope Middle School; Jackson currently attends the 5t' grade and Zoe attends the 3rd grade at Hampden Elementary School. 5. On July 22, 2009, Respondent filed a complaint in divorce in this Court, which complaint has been docketed to No. 09 - 4297. 6. Both Petitioner and Respondent have continued to reside in the marital residence since the filing of the Divorce Complaint and have shared custody of their children. 7. Upon information and belief, Respondent has decided to move out of the marital residence and relocate to Elizabethville, Dauphin County, Pennsylvania. 8. Upon information and belief, Respondent intends for the parties' minor children to move to Elizabethville with her and to attend new schools in Dauphin County. 9. Respondent's place of employment is in Lemoyne, Cumberland County, Pennsylvania. 10. The parties' minor children are all enrolled in the Cumberland Valley School District, located in Cumberland County, Pennsylvania. 11. The children have all attended school in the Cumberland Valley School District since they attained school age. 12. All of the children's friends and activities are located in the Mechanicsburg area. 13. Neither the children nor the Respondent has family located in Elizabethville, Dauphin County, Pennsylvania. 14. The majority of the children's paternal relatives live in Cumberland County 15. Upon information and belief, Respondent has elected to move out of Cumberland County to Elizabethville, Dauphin County, in order to live near her new boyfriend. 16. Moving to Elizabethville, Dauphin County, will in no way serve the best interests of the parties' minor children. 17. The proposed relocation by Respondent would take the children out of the home they have grown up in, the schools they have attended for years, away from their friends and activities and away from their Father. 18. On September 18, 2009, Petitioner was informed by the children's schools that Respondent has filed paperwork to withdraw the children from the Cumberland Valley School District effective October 1, 2009. Respondent did so without consulting with or obtaining consent from Petitioner. 2 19. Petitioner believes, and therefore avers, that it will serve the children's best interests for them to remain living in the marital residence with Petitioner and to continue attending school in the Cumberland Valley School District. 20. Petitioner also believes, and therefore avers, that it is in the children's best interest to have as little disruption in their lives as possible given that their parents are in the middle of a divorce. 21. Petitioner believes, and therefore avers, that shared physical custody with Respondent would serve the children's best interests, provided that the marital residence continues to serve as the children's primary residence and they continue to attend school in the Cumberland Valley School District. 22. Petitioner has filed a complaint for custody of the children contemporaneously herewith at the above-captioned docket number. WHEREFORE, Plaintiff, David G. Kennerly, respectfully requests the Court to enter an Emergency Order, in the form attached hereto, granting him temporary primary physical custody of the parties' minor children and ordering that the children remain enrolled in their respective schools in the Cumberland Valley School District until the Court conducts a custody hearing. DATED: qi?C of Counsel BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 (717) 233-7691 Respectfully submitted, 91 3 Attorneys for Plaintiff/Petitioner David G. Kennerly VERIFICATION I, David G. Kennerly, hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. DATED: r David G. I erly Tr: 4.;; I ?,`, , ,,,, {) l,A.rr Cc 2004 SEP 24 PH 1: 5' f-' = ar SYLVA -y 7o. GO i%L #44 p--1', ;2 lot ?f DAVID G. KENNERLY, Plaintiff/Petitioner V KIMBRLY A. KENNERLY Defendant/Respondent :1N THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :CUSTODY :NO.09-6391 ANSWER TO CUSTODY COMPLAINT AND NOW comes Kimberly Kennerly, by and through her attorney, Susan K. Pickjfbrd, Esq. and files this Answer to Plaintiff s Complaint in Custody. 1. ADMITTED 2. ADMITTED 3. ADMITTED. By way of further answer, Mother is in the process of relocating to Elizabethville which will be effective October 1, 2009 barring an Order from this couirt restricting her ability to move. 4. ADMITTED 5. ADMITTED 6. ADMITTED. By way of further answer, Father was notified about the move but does not consent. 7. ADMITTED 8. ADMITTED 9. ADMITTED 10. ADMITTED in part and DENIED in part. It is admitted that the best interests of the children is best served by facilitating a relationship with both parents. Defendant belii ves and therefore avers that the best interests of the children lies in awarding primary custody to the parent who has been the stable, consistent and reliable care-taker of the children since birth and that would be Defendant/Mother. The children's best interests are served by granting primary custody to Mother because: a) Mother has been essentially a stay at home mother the majority of the children's' lives, b) Mother has provided for the daily needs of the children almost exclusively, including preparing meals, lunches, clean clothes, help with schoolwork, medical attention, transportation and supervision of all medical needs and educational needs, monitored and supervised the special educational needs of the youngest child, conference with teachers and doctors and maintained a consistent and stable homelife. c) Father has not been involved in the daily routine of the children for the past 14 bars. Since the divorce was filed, Father has failed to provide proper food and clean ellothes for the children. The house where the children stay during Father's time in unkempt and unsanitary. d) Mother is moving to Elizabethville, less than an hour away from Father, for financial and family support reasons. Mother has proposed a custody agreement that provides generous time for the Father to enjoy time with his children and has offered to provide transportation during the week to provide Father with extended time with his children and less time traveling. e) Mother will facilitate a healthy relationship between children and Father, while Father has engaged the children in acts intended to emotionally hurt Mother. f) Father intends to have a roommate in the house to defray costs. Mother would b? living only with the children. g) Mother's new location would provide the children with a better teacher/student ritio in the school they will attend in Elizabethville which would provide a stated advantage to the youngest child who is experiencing some learning challenges. h) Mother's new location would provide the children with a closer relationship with their Maternal extended family. WHEREFORE, for all the foregoing reasons, Defendant requests this Honorable Court to gMnt her primary custody of the children with periods of partial custody to Father. Respec ly submitted, DATED: , K. Pickfo Esye' 875 Market Street Lemoyne, PA 17043 j (717)761-1274 ID 43093 VERIFICATION I, Kimberly Kennerly, hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, inform tion and belief. I understand that false statements herein are made subject to the penalties under 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. DATED: ?- -01 wv? Kimberly K n rly CERTIFICATION OF SERVICE I, Susan K. Pickford, Esq., do hereby certify that on this date, I served the forgoing document to the persons and in the manner indicated below: Elizabeth Beckley, Esq. 212 North 3`d Street Harrisburg, PA 17108 First Class Mail And FAX Respectfully submitted, DATED: 2 GSA usan K. Pic rd, E 875 Market Street Lemoyne, PA 17043 (717)761-1274 ID#43093 W IIF n ? (r ITV : t 2 V rS1? r4; ',, n r DAVID G. KENNERLY, Plaintiff V KIMBERLY A. KENNERLY, Defendant JN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :CUSTODY :No. 09-6391 NOTICE TO PLEAD TO: David Kennerly Attorney Elizabeth S. Beckley You are hereby notified to Plead to the enclosed New Matter within 20 days from the date of service or a judgment may be entered against you. SAN K. PIC RD, EA. Attorney for Kinkerly A ennerly 875 Market Street Lemoyne, PA 17043 (717) 761-1274 DAVID G. KENNERLY, JN THE COURT OF COMMON PLEAS OF Plaintiff/Petitioner :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW V :CUSTODY KIMBRLY A. KENNERLY :NO. 9_ 64 3 q I G N• I Defendant/Respondent RESPONDENT'S ANSWER TO EMERGENCY PETITION FOR SPECIAL RELIEF AND NEW MATTER AND NOW comes Respondent, Kimberly Kennerly, by and through her attorney Susan K. Pickford, Esq. and files this Answer to Petitioner's Emergency Petition: 1. ADMITTED. 2. ADMITTED 3. ADMITTED 4. ADMITTED 5. ADMITTED 6. DENIED. Respondent has continuously resided in the marital home, however, Petitioner has left the marital home without the children on 5 occasions in the past 18 months, the most recent being July 5m to on or about September 15, 2009. Petitioner's return to the home created such discord that Respondent was forced tb leave. Respondent secured a rental home in Elizabethville, near her family and' less than an hour from Petitioner, that will be available on October 1, 2009. Upon] informing Petitioner the location of her new residence, the parties entered into a temporary verbal arrangement providing for time with both mother and father until the move. The children have stayed in Lykens with Mother, who drives them to school in Cumberland County pending the move to their new school. While Petitioner states that there is `shared custody', there is no order regarding: custody, only a temporary verbal agreement that Respondent has been honoring. 7. ADMITTED. By way of further answer, Respondent only moved out of the marital residence after Petitioner moved back in following the filing of the Divorce Complaint at which time he threatened to change the locks and illegally exclude Respondent from the home. Respondent and the children are staying at the maternal grandmother's home awaiting the availability of the rental home on October 1, 2009. They stay with Petitioner during his periods of temporary custody. 8. ADMITTED. By way of further answer, Respondent has been the primary care- taker of the children since their birth. It is in the best interests of the children to remain with the parent who has provided them stability and security throughout their lives. 9. ADMITTED. 10. ADMITTED. 11. ADMITTED. By way of further answer, it is not unusual for children to change schools when parents divorce, when parents' jobs change or relocate them or even when parents decide to move for climate or economic reasons. 12. DENIED. The children have significant ties to the Elizabethville-Lykens area. Petitioner is well aware as he has enjoyed many holidays with Respondent's family in that area. Respondent grew up in Lykens which is only 10 minutes froth Elizabethville and shares a school districts with Elizabethville. The children havboth family and friends in both towns which are no farther apart than Camp Hill and Lemoyne. 13. DENIED. In fact, the home Respondent is renting in Elizabethville is owned by her mother's cousin and she lives in the other half of the duplex. She also has young children who are related to these minor children. 14. ADMITTED. By way of further answer, Elizabethville is less than an hour away. The distance will not prevent father or his family from enjoying the time with the children that they have enjoyed to date. 15. DENIED. Respondent sought appropriate and affordable housing in the Mechanicsburg area and was unable to find something that fit her needs and budget. Petitioner removed joint funds from the bank and took over the marital home. He is not paying support to Respondent. Respondent was in need of finding affordable housing quickly. She then looked in the area near her family where she was living temporarily, in order to have the additional family support for her and the children. While she was looking for housing, her mother's cousin, called and offered her a half of a duplex that had become available right next to her. It was a price Respondent could afford and had ample room for the children.' Respondent took the rental and will move in on October 1, 2009. 16. DENIED. The best interests of the children are served by providing them with the stability, security and care-taking that they have known throughout their lives by the parent who provided it, Respondent. The children will be among maternal family and friends, enjoying smaller class sizes and country living. The children are anxious to make the move and have no qualms about moving. Petitioner has: not served as care-taker of these children in 14 years. Since Petitioner has moved back into the house, the house is unkempt and unsanitary, the children report that it smells bad, laundry is not done nor meals cooked by Petitioner. The children area provided fast food, Oreos and Doritos for meals. 17. DENIED. Relocation of less than an hour's drive would continue to provide the children with regular access to their friends and family in Mechanicsburg as well; as a new group of friends and other family in Elizabethville. The move would provide them with a smaller child-teacher ratio in their school. As for the maritail home, it has been threatened with foreclosure at least twice as a result of encumbrances from Petitioner's failed business ventures. Stability is provided to children by parents who consistently care for them, provide for their needs and give them a safe and secure environment; not by a particular school or house. 18. ADMITTED in part and DENIED in part. It is admitted that Respondent arranged to withdraw the children from their current school. It is denied that thi$ was done without informing Petitioner. 19. DENIED. Petitioner sets forth a general allegation with no supporting statements of fact. The children's best interest is served by receiving daily parenting and cafe including healthy, regular meals, clean clothing, assistance with homework, involvement with their school and teachers, encouragement in sports and activities, attention to medical care and special needs. These things have been provided almost exclusively by Respondent for the past 14 years. Therefore, Respondent believes that the best interests of the children lie in moving with thldir mother as their primary custodian and enjoying regular and frequent time with their father. 20. ADMITTED. By way of further answer, the best interests of the children during' a time of divorce is in providing consistency of care, financial and emotional stability and as little disruption to their routine as possible. Respondent has established the routine in these children's lives and provided the stability, consistency and support that they have known all their lives. Petitioner's home, since Respondent left is in disarray and is unclean. The children are not being fed proper food for meals and are not provided with clean clothes by Petitioner. 21. DENIED. Respondent incorporates all the foregoing paragraphs as if fully set forth herein in response to this paragraph. In addition, Respondent believes and therefore avers that there is no detriment to the children and that, in fact, it is in their best interests to allow the move to Elizabethville for the following reasons- (a) Elizabethville is less than one hour from Petitioner's residence and will in no way impair father's ability to spend time with his children beyond what results from any divorce situation (b) Respondent is relocating to the Elizabethville area for financial and emotional support reasons, not to hinder the relationship between petitioner and his children. (c) Respondent has offered a proposed custody agreement that provides for ample time for father as well as addition periods on:: agreement of the parties and has also offered to arrange transportation to provide father with less travel and more time with children. (d) Children will enjoy a smaller studentheacher ratio. (c) Children will have the opportunity to enjoy a closer relationship with their maternal extended family such as they have enjoyed with paternal relatives for the first part of their lives. 22.ADMITTED. WHEREFORE, Respondent/Mother respectfully requests this Honorable Court to deny Petitioner's Emergency Petition and grant Respondent/Mother leave to continue with her move to Elizabethville with the children. NEW MATTER 23. Respondent hereby incorporates paragraphs 1 through 22 as if fully set forth herein. 24. Petitioner's relocation is based upon economic necessity and proximity to family and friends. 25. Petitioner has failed to set forth allegations sufficient to support a claim that the intended relocation is not in the best interests of the children or purposed in removing the children from access to father. 26. Respondent intends to relocate to an area in Dauphin County less than one hour's drive from Petitioner and from which many people commute to Cumberland County to work. Said move of approximately 40 miles does not place a hardship on father with regard to spending time with his children. 27. Respondent has made every effort to provide offers of transportation to fathdr to allow for more visiting time with the children and less travel time. 28. Respondent has proposed a custody schedule that not only provides ample time to father but allows for additional times as agreed upon by the parties. 29. The relocation will provide the children with a beneficial smaller teacher/student ratio as compared to their current schools. 30. The relocation will provide the children with more frequent access to their maternal relatives with whom they enjoy a close relationship. Mother has family in both Elizabethville and Lykens, two towns that are in a similar proximity as Camp Hill and Lemoyne. 31. The relocation will continue to provide the children with activities and sporting events they may wish to access. 32. The relocation provides Respondent/Mother with proximity to and support from her family and friends during this trying time in her life to help her emotionally, financially and with the children. 33. This relocation of approximately 40 miles does not adversely affect any of the parties and provides the children with a new and beneficial opportunity about which they have expressed excitement. 34. Relocation with Respondent Mother is in the best interests of the children because she has been the consistent and stable care-giver to the children all of their lives. Petitioner Father, even in the short time he has been alone with the children has not adequately fed or clothed the children or cared for their daily needs. It is in the best interest of the children to continue a relationship with their father but to be in the primary custody of their mother. Wherefore, Respondent respectfully requests this Honorable Court deny Petitioner's Petition and allow Respondent to continue with her relocation and grant interim primary custody to Respondent with periods of alternating weekends and one or two evenings a week visitation to Petitioner pending conciliation. DATED: Respectfully submitted, usan K.Pi ord, 875 Market S Lemoyne, PA 17043 (717)761-1274 ID#43093 VERIFICATION I, Kimberly Kennerly, hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties under 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. DATED: 9 -)6-09 CERTIFICATION OF SERVICE I, Susan K. Pickford, Esq., do hereby certify that on this date, I served the forgoi4 document to the persons and in the manner indicated below: Elizabeth Beckley, Esq. 212 North 3`d Street Harrisburg, PA 17108 First Class Mail And FAX R ly submitted, DATED : Susan K. Pickfj*d, E 875 Market Street Lemoyne, PA 17043 (717)761-1274 ID#43093 n TF;= _ ' ' r4y i s a DAVID G. KENNERLY, PLAINTIFF/PETITIONER V. KIMBERLY A. KENNERLY, DEFENDANT/RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 09-6391 CIVIL TERM ORDER OF COURT AND NOW, this 7j1#\' day of September, 2009, IT IS ORDERED that neither David G. Kennerly or Kimberly A. Kennerly may remove the children from their current schools pending conciliation and any further order of court. By the Edgar B. Bayley, J. Elizabeth S. Beckley, Esquire For Petitioner ?Kimberly A. Kennerly, Pro se 6307 Valley Brook Drive Mechanicsburg, PA 17050 Court Administrator - ? betcs-. 1;0 :sal (2p 1 l '" rrn.A"Z L CqCC ALL) .. OF THE RRrl' 2009 SEA' 25 u C: 4 Ow DAVID G. KENNERLY IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. 2009-6391 CIVIL ACTION LAW KIMBERLY A. KENNERLY IN CUSTODY DEFENDANT ORDER OF COURT AND NOW, Wednesday, September 30, 2009 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Dawn S. Sunday, Esq. , the conciliator, at 39 West Main Street, Mechanicsburg, PA 17055 on _ Tuesday, November 03, 2009 at 12:00 PM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ Dawn S. Sunda Es q. ju(i 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 f V-2 I-Famaw P30 P" it 39 r .. DAVID G. KENNERLY, Plaintiff/Petitioner V. KIMBERLY A. KENNERLY, Defendant/Respondent JN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :CUSTODY NO. 09 -6391 PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER TO PLAINTIFF'S EMERGENCY PETITION FOR SPECIAL RELIEF AND NOW comes the Plaintiff/Petitioner, David G. Kennerly, who, by and through his attorneys, Elizabeth S. Beckley, Esquire, Charles O. Beckley, II, Esquire, and Beckley & Madden, of Counsel, files this Reply to Defendant's New Matter to Plaintiff's Emergency Petition for Special Relief, and in support thereof avers as follows: 23. The averment contained in Paragraph 23 of Defendant's New Matter does not require a response. 24. Denied. On the contrary, Respondent's immediate family and friends do not live in Elizabethville. By way of further response, Petitioner believes, and therefore avers, that Respondent's sole reason for relocating to Elizabethville is so that she can live near her new boyfriend. 25. Denied. The burden of proof for relocation is upon the party that intends to relocate. Petitioner has offered several reasons why he believes it is not in the children's best interest to relocate to Elizabethville. By way of further response, the school district the children have been attending their entire lives is ranked much higher than the school district Respondent intends to relocate to. 26. Denied. After reasonable investigation, Petitioner is without information or knowledge sufficient to form a belief as to the truth of the averments contained in Paragraph 26 of Respondent's New Matter and said allegations are therefore denied. By way of further response, a proposed move of approximately 40 miles places an undue burden and hardship on the children in a shared custodial arrangement. 27. Denied. On the contrary, Respondent has made absolutely no offers with regard to transportation itself. Respondent's offer is for Petitioner to spend 4 '/2 days a month with his children which is completely unacceptable to Petitioner. 28. Denied. On the contrary, Respondent has offered Petitioner 4 '/2 days a month to spend time with his children. If Respondent truly believes that 4 '/2 days per month is enough time to spend with her children, then Respondent should be more than willing to allow the children to live primarily with the Petitioner in the marital residence and she can then spend 4 1/2 days per month with the children. 29. Denied. After reasonable investigation, Petitioner is without information or knowledge sufficient to form a belief as to the truth of the averments contained in Paragraph 29 of Respondent's New Matter and said allegations are therefore denied. By way of further response, the school district where the children are currently enrolled is ranked much higher than the proposed school district Respondent wishes to relocate to. 30. Denied. The children already enjoy frequent contact with both their maternal and their paternal relatives. 31. Denied. After reasonable investigation, Petitioner is without information or knowledge sufficient to form a belief as to the truth of the averments contained in Paragraph 31 of Respondent's New Matter and said allegations are therefore denied. By way of further response, Respondent's relocation has already caused the children to miss some of their current practices and activities in the Mechanicsburg area. 32. Denied. After reasonable investigation, Petitioner is without information or knowledge sufficient to form a belief as to the truth of the averments contained in Paragraph 32 of Respondent's New Matter and said allegations are therefore denied. 33. Denied. After reasonable investigation, Petitioner is without information or knowledge sufficient to form a belief as to the truth of the averments contained in Paragraph 32 of Respondent's New Matter and said allegations are therefore denied. By way of further response, Respondent's relocation has already caused the children to miss 2 some of their current practices and activities in the Mechanicsburg area. 34. Denied as stated. It is admitted that Respondent has been the children's primary care giver; however, Petitioner has been an active and involved parent in his children's lives. It is specifically denied that Petitioner has not adequately fed and clothed his children or cared for their daily needs. When Respondent moved out of the marital residence she took all of the children's currently fitting clothing with her, rather than dividing their clothing between households and left only those items that the children had grown out of. Respondent immediately went out and purchase new clothing for the children to wear while in his care. The children's best interests will be served by the parties continuing to share custody of the children as they have done since their separation. WHEREFORE, Plaintiff, David G. Kennerly, respectfully requests the Court to enter an Order granting the parties shared physical custody of their minor children and ordering that the children remain enrolled in their respective schools in the Cumberland Valley School District. DATED: of Counsel Respectfully submitted, BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 (717) 233-7691 3 Ch es O. Beckley, II, Esquire orneys for Plaintiff/Petitioner David G. Kennerly r .. VERIFICATION I, David G. Kennerly, hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. DATED: p-1q--C1 David G. Kennerly CERTIFICATE OF SERVICE I, Elizabeth S. Beckley, Esquire, hereby certify that a true and correct copy of the foregoing document was this day served upon the person and in the manner indicated below. SERVICE BY FIRST CLASS MAIL: Susan K. Pickford, Esquire Carrucoli & Associates Attorneys At Law 875 Market Street Suite 100 Lemoyne, PA 17043 DATED: l(??/?('d *Elizdbeth. B ' e RLH E SEP-24-2009 THU 07:09 PM Beckley & Madden DAVID G. KENNERLY, Plaintiff V. KIMBERLY A. KENNERLY, Defendant FAX NO, 7172333740 :IN' THE COURT Or COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :CUSTODY :NO. 09 -- 6391 ACCEPTANCE OF SERVICE I, Susan K. Piekford, Esquire, hereby accept service of the Custody Complaint and the Emergency Petition for Special Relief filed in the above-captioned action on behalf of the Defendant, Kimberly A. Kennerly. DATED: 1?dy" a19 - 'Sttsan K. Pickfo , Esquire P. 03 ?009 N0 12 ,i'i 2 NOV 0 9 200 & DAVID G. KENNERLY Plaintiff vs. KIMBERLY A. KENNERLY Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2009-6391 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, this /0 day of 1,H16 t be L 2009, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. A hearing is sche uled in Court Room Number Jr itCter r.nd County Court House on the R day of , 2010, at Lq5' o'clock a in., at which time testimony will be taken. For urposes the hearing, the Father shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for the parties shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who are expected to testify at the hearing, and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least seven days prior to the hearing date. 2. Pending the hearing and further Order of Court, the parties shall have shared legal custody of Payton Kennerly, born December 5, 1995, Jackson Kennerly, born July 6, 1998, and Zoe Kennerly, born March 26, 2001. The parties shall continue to have shared physical custody of the Children in accordance with the schedule that they are currently following, unless the parties agree to make adjustments to the schedule pending hearing. 3. Pending the hearing, the prior Order of this Court dated September 24, 2009 shall continue in effect. cc: E ' abeth S. Beckley, Esquire - Counsel for Fath Susan A. Pickford, Esquire - Counsel for Mother DAVID G. KENNERLY Plaintiff VS. KIMBERLY A. KENNERLY Defendant Prior Judge: Edgar B. Bayley IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2009-6391 CIVIL ACTION LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Children who are the subjects of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Payton Kennerly December 5, 1995 Father/Mother Jackson Kennerly July 6, 1998 Father/Mother Zoe Kennerly March 26, 2001 Father/Mother 2. A custody conciliation conference was held on November 3, 2009, with the following individuals in attendance: the Father, David G. Kennerly, with his counsel, Elizabeth S. Beckley, Esquire, and the Mother, Kimberly A. Kennerly, with her counsel, Susan A. Pickford, Esquire. 3. The Father filed this Complaint for Custody seeking to continue the shared physical custody schedule which the parties had previously been following by agreement. The Mother has moved recently to Elizabethville, which is an approximately 40 minute drive between residences. This Court previously entered an Order on September 24, 2009 prohibiting the Mother from removing the Children from their current school district, which is Cumberland Valley. 4. The parties were not able to reach an agreement at the conference and it will be necessary to schedule a hearing. 5. The Father's position on custody is as follows: The Father stated that he believed the shared physical custody schedule which the parties had been following prior to and continuing since the Mother's move to Elizabethville best serves the needs of the Children. The parties were splitting each school week and alternating the weekends. The Father indicated that if the Mother does not move back to the local area, he believes that it would be best for the Children to reside primarily with him as the frequent exchanges under the current schedule are not practicable in light of the distance. The Father believes the Mother moved to the Elizabethville area to be with her boyfriend rather than for family support or financial reasons. The Father feels that it is important for the Children to have continuity as the Father's family resides in the area, the Children's friends reside in the area and the Children are involved in sports and other activities in the area. The Father seeks primary physical custody if the Mother does not move back to (or near) the Cumberland Valley School District. 6. The Mother's position on custody is as follows: The Mother stated that she moved to Elizabethville to be near her parents and that she is renting a duplex from her cousin, which she would not be able to afford if she moved back to the local area. While the Mother still works in Lemoyne, she stated that she cannot afford to live in Cumberland County in light of the parties' current financial circumstances. The Mother believes it would be best for the Children to reside primarily with her as she has been the primary caretaker for the Children. The Mother stated that the Children emotionally need to live with her as primary custodian. 7. The conciliator submits an Order in the form as attached scheduling a hearing on the issue of primary physical custody of the Children. It is anticipated that the hearing will require at least one- half day. The Mother has requested that the hearing be expedited due to the difficulties inherent in continuing the shared custodial schedule while the Mother is living in Elizabethville. ? ? ;-(')- Date Dawn S. Sunday, Esquire Custody Conciliator rhf: . 7E ? ` T? 7r0, 9Ill37 10 F'11 ': 1 7 i DAVID G. KENNERLY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW KIMBERLY A. KENNERLY, Defendant NO. 2009-6391 CIVIL TERM ORDER OF COURT AND NOW, this 28th day of January, 2010, after a hearing, which consisted in the testimony of David G. Kennerly, hereafter father,. and Kimberly A. Kennerly, hereafter mother, and the in camera interview of the children, Payton K. Kennerly, born December 5th, 1995, Jackson Kennerly, born July 6, 1998, and Zoe Kennerly, born March 26, 2001, the Court enters this order upon agreement of the parties: 1. All prior orders of court are vacated and replaced by this order. 2. The parties shall have shared legal custody of their minor children. 3. Mother shall have primary physical custody of the children, and they are specifically permitted to reside in Elizabethville, Dauphin County. 4. Father shall have partial physical custody in accordance with the following schedule: During the school year: j, ~--.. (a) Every other weekend, commencing Friday after C:, _, ~~ school until Monday morning at a time which ensures ~t_! •'~ --- `'~ the children have ample opportunity to arrive at ~,, ~- c~ school . ~t.i~ ~' - ~~~ ~' `"~' (b) Father will have two nights each week, ~~ "' `'' Tuesday and Thursday, from 5:30 p.m. until 8:30 p.m. (c) Father will have partial custody on any Monday on which the children do not have school. During summer vacation: (a) Commencing on the Sunday of the first full week after the close of school, the parties will alternate weekly periods of custody through the end of the summer vacation. The weekly exchanges will take place on Sunday, at times to be agreed upon by the parties. (b) The noncustodial parent will have the right to visit with the children on Wednesdays, at times to be agreed upon by the parties. 5. Mother shall have the children on Mother's Day. Father shall have the children on Father's Day. 6. Thanksgiving vacation shall be divided into two segments. Segment A will consist of Wednesday to Thursday from noon to noon, and Segment B will consist of Thursday and Friday also from noon to noon. In 2010 and every even year thereafter, father shall have Segment B. 7. Christmas vacation shall be divided into two segments. Segment A will be December 24th and 25th from noon to noon, and Segment B will be December 25th to 26th from noon to noon. In the year 2010 and every even year thereafter, mother shall have Segment A. 8. On the children's birthday, the noncustodial parent shall have a black of time of at least three hours. 9. The parties agree to share all school holidays. 10. The parties agree to alternate the following holidays: Easter, consisting of Easter Sunday and the following Monday, Memorial Day, July 4th, and Labor Day, with father having the children for the Easter vacation in the year 2010. 11. The parties agree to share the responsibilities for transportation. 12. The parties may modify the provisions of this order by mutual consent. In keeping with the ability to modify these provisions, it is the responsibility of both parties to be flexible and attempt to meet the needs of the other party with respect to family gatherings and events. In the absence of mutual consent, the terms of this order shall control. By the Court, ~ Elizabeth S. Beckley, Esquire For Plaintiff ./ Susan K. Pickford, Esquire For Defendant prs C'o ~'~ .n.~ ~ L~., ~~~Q /~~ ~~ Albert H. Maslan J