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HomeMy WebLinkAbout04-16-10 NDEX TO WITNESSES FOR MARK AVENI DIRECT CROSS REDIRECT RECROSS Mark Aveni Anita M. Aveni as on cross by Mr. Engle by Mr. Kerr Sean Aveni By the Court FOR ANITA AVENI 4 15 -- -- EXAMINATION 20, 42 28, 44 47 2 NDEX TO EXHIBITS FOR MARK AVENI FOR ANITA AVENI Ex. No. 1 - letter Ex. No. 2 - copy of license & I.D. Ex. No. 3 - copy of voter registration card Ex. No. 4 - copy of Social Security card Ex. No. 5 - payee report 30 not admitted 32 48 33 48 34 48 35 48 3 THE COURT: Please be seated. This is the 2 time and place for a hearing on preliminary objections to a 3 petition for appointment of a guardian. This case was 4 originally to be -- this matter was originally to be heard 5 by Judge Guido at this time, but he is otherwise occupied 6 and has asked me to hear the matter. ~ These preliminary objections are in the 8 nature of a Petition To Transfer Venue. We will let the 9 record indicate that the Petitioner, that is the objectant, 10 is represented by Jeffrey B. Engle, Esquire. The party that 11 has filed the Petition for Guardianship is represented by 12 John M. Kerr, Esquire, and the young man who is the subject 13 of this proceeding, Sean A. Aveni, is represented by Albert 14 Masland, Esquire. Mr. Masland, are you court-appointed? 15 MR. MASLAND: Yes, Your Honor. 16 THE COURT: All right. Go ahead. Do you 17 want to present evidence? lg MR. ENGLE: May it please the Court, Your 19 Honor, I'll call my client, Mark Aveni, to the stand. 20 Whereupon, 21 MARK AVENI 22 having been duly sworn, testified as follows: 23 DIRECT EXAMINATION 24 BY MR. ENGLE: 25 Q Okay. Sir, would you please state your name 4 1 for the Judge? 2 A Mark Richard Aveni. 3 Q And, Mr. Aveni, how old are you? 4 A Forty-seven. 5 Q And, sir, where do you currently reside? 6 A 220 Erford Lane, Johnstown, Pennsylvania. 7 Q And, sir, that is in Cambria County, is it 8 not? 9 A That is correct. 10 Q And, sir, are you employed there? 11 A Yes, I am. 12 Q And where are you employed at? 13 A I work for Dollar Tree. I'm a store manager. 14 Q And is that also in Cambria County? 15 A Yes, it is. 16 Q And, sir, prior to August the 8th, were you 17 residing at 220 Erford Lane? 18 A I was. 19 Q And how long have you lived at that address? 20 A Ten years. 21 Q And prior to that were you also living in 22 Cambria County? 23 A Yes, I was. 24 Q And your wife, what is your wife's name? 25 A Anita Maria Aveni. 5 Q And when were you married? 2 A We were married May 14th, 1988. 3 Q And have you and your wife lived in Cambria 4 County that entire period? 5 A Yes, we have. 6 Q And do you have any children together? ~ A Yes, we do. 8 Q And your child's name? 9 A Sean Anthony Aveni. 10 Q And what is his date of birth? 11 A 10/28/1989. 12 Q And how old is Sean today? 13 A Nineteen. 14 Q Now, does Sean suffer from any sort of 15 disabilities? 16 A Yes, he does. 17 Q And what are his disabilities? 18 A Sean was born with spina bifida. 19 Q I'll tell you what, you are a little too 20 close to that . 21 A Is that better? 22 Q Yes. 23 A Okay. Sean was born with spina bifida T-5, 24 T-6 in the thoracic level. He has no sensation from his 25 hipline down. Sean was also born with hydrocephalus where 6 we had to have a shunt put in the day that he was born. 2 Knock on wood, there was no shunt revisions that ever had to 3 be done to Sean. 4 Q Mr. Aveni, slow down a little bit. I know 5 you know this by heart. 6 A Okay. 7 Q But this young lady here has to take all of 8 this down, and you are throwing out some real big five 9 dollar words here. 10 A Okay. I'm sorry. 11 Q I'm sorry. You said he has what? 12 A He had hydrocephalus, which was water on the 13 brain, that he had to have a shunt put in the day that he 14 was born. 15 Q All right. And as a result of that does he 16 suffer from any sort of mental disabilities? 17 A Yes. 18 Q What are those? 19 A Well, Sean -- he is not 19 per say. Okay. 20 He can write. He can read a little bit, okay, but he's not 21 ari actual -- you know, at the age of 19. His mental 22 capacity is probably limited to that. 23 Q What is his mental capacity? The age of 24 what? 25 A I don't know what his -- I don't know. 7 Maybe 12, 13. 2 Q Now, was Sean in school in Cambria County? 3 A Yes, he was, Greater Johnstown School 4 District. 5 Q And what grade was he in Greater Johnstown 6 School District? 7 A Twelfth. g Q And what year did he graduate? g A He actually graduated in 2007 with his peers 10 that he has been going through school. Sean's been in 11 Greater Johnstown School District all of his life, and when 12 his graduating class graduated, Sean got the honors to 13 graduate with the class. He got to wear a cap and gown. He 14 got to go to the commencement, but Sean will still be in the 15 school district until the age of 21. 16 Q Now, does he actually attend classes there or 17 is he schooled elsewhere? 18 A Yeah, he's homebound. The teacher comes to 19 the house twice a week. It varies. Sometimes she comes 20 Mondays and Wednesdays. That is usually when she came, and 21 she would come anywhere from 2 to 3 hours at a time. 22 Q And when was he scheduled to start school in 23 2009? 24 A September the 14th. 25 Q And that was in Cambria County? 8 A Yes. 2 Q Now, does he receive any sort of medical care 3 in Cambria County as a result of his disabilities? 4 A Well, he has occupational and speech 5 therapists, physical therapists that came to the house. 6 One that I can remember, Toni Repack (phonetic), she's been ~ working with Sean for a very long time. Some of the other g therapists I can't really remember their names, but they do g ~~ome. The one would come over from the West Side School, 10 which was real close to where we lived. She would actually 11 walk over. So, yes, he did have some of that there. 12 Q And how many hours a week of medical care 13 would he receive? 14 A Through the aides that came from interim 15 health? 16 Q Sure. l~ A He was getting 40 hours a week. He was lg getting 28 from Megan, and 12 from Phyllis. 19 Q And those are the names of the two aides that 20 specifically were assigned to Sean? 21 A Yes. 22 Q Megan and Phyllis? 23 A Yes. 24 Q And when is the last date that you saw Sean 25 in Cambria County? 9 A August the 12th, 2009. 2 Q And had he received medical care from either 3 Phyllis or Megan on that date? 4 A No. Well, she was up at her grandmother's 5 house on August the 12th -- Megan was. I don't know why she 6 was there, but when I got up to her grandmother's house that 7 evening Megan was there. 8 Q All right. Now, I want to discuss a little 9 bit about the terms of Sean's leaving Cambria County. On 10 August the 8th, did Sean leave the 220 Erford Lane address? 11 A Yes. 12 Q And where did he go? 13 A He went to his grandmother's house. 14 Q Which is where? What is the address there? 15 A 32 Focal Street, Johnstown, Pennsylvania. 16 Q And how far away is that from your house? 1~ A About 15 minutes. 18 Q And who did he go there with? Who took him? 19 A Anita did. 20 Q Your wife? 21 A Yes. 22 Q And what was the purpose that you were under 23 the impression -- what was the purpose of going to the 24 grandmother's house? 25 A Well, me and Anita got into a fight and she 10 left. She said she was going to her grandmother's house. 2 I said when are you coming back? I don't know. So they 3 left probably within an hour after we started fighting. 4 Q All right. And then on August 12th what 5 happened? 6 A On August 12th I was home. It was about 7:00 7 in the evening. Anita and her mother showed up at our 8 house. She got more medical stuff, diapers, personal 9 effects of her own. I asked her where Sean was at, and she 10 told me that Sean was up at her grandmother's. 11 Q Which is in Johnstown? 12 A Up in Cover Hill. 13 Q Cover Hill? 14 A Right. 15 Q Okay. 16 A So I waited for them to get their stuff, and 17 I followed them up to Cover Hill to see Sean, and that was 18 about 8:00 at night. 19 Q And that was on August the 12th? 20 A That was August the 12th. 21 Q And is that the last time you saw Sean in 22 Cambria County? 23 A Yes. 24 Q And what did you find out later, after August 25 the 12th? 11 A Well, I got served divorce papers probably -- 2 it was either August the 24th or the 26th. I'm not sure on 3 the date. I know it was a Wednesday. I was working. I 4 went home at lunchtime to get my mail, and there was a 5 receipt in my mailbox, and I knew exactly what it was as 6 soon as I saw that. So I went and found the mailman in the 7 neighborhood, and I signed for the document -- or the 8 envelope, and I took it home and opened it up, and it was -- 9 she filed for a divorce, and that is when I got it. 10 Q Now, did you have any discussions with your 11 wife or with Sean between August the 12th and August the 12 24th? 13 A I have spoken to Sean. When I would call 14 down there to her mother's house, Anita would answer the 15 phone, and I would just ask to talk to Sean. So I have 16 spoken to him, but not to her. 17 Q And you said her mother's house. Where is 18 that located? 19 A 51 Kensington Drive, Camp Hill, Pennsylvania. 20 Q And did your wife or Sean -- I guess -- let 21 me back up. Did your wife ever make you aware that she was 22 now going to be living with Sean in Cumberland County on a 23 permanent basis? 24 A No, she has not. 25 Q When were you served with the Petition for 12 Guardianship over Sean? 2 A I received that in the mail on September the 3 2nd, 2009. I would go at 10:00 every morning to get my mail 4 because I could leave work and the mailman was real close to 5 my job, and he would have my mail ready for me, and then on 6 that date, on September the 2nd, is when I got that petition 7 for a guardianship hearing. Or September the 2nd, I'm 8 sorry. g Q And shortly after that did you retain 10 counsel? 11 A I did. I think I received that, it was 12 either -- I think it was a Wednesday or a Thursday. I'm not 13 quite sure when September the 2nd was, but I called your 14 office on Friday. I know it was a Friday morning. It would 15 have been that week, and I spoke to the secretary at your 16 office. I told her what was going on. She took the 17 message. lg Q Well, we don't need to get into exactly what 19 we discussed. 20 A Okay. 21 Q But at any point between August the 24th and 22 September the 2nd, did you discuss with your -- with your 23 wife where Sean would be living? 24 A No. 25 Q Had you had discussions with her as to when 13 she planned to come back home? 2 A No. 3 Q What was your impression of Sean and your 4 wife not being at home? 5 A Well, I thought when she -- you know, when 6 she was going down to Harrisburg, I thought she was going to 7 go down for a week or so, okay, sort things out, try to work 8 things out, come back and live in Johnstown. Okay. That 9 didn't happen. She went to Harrisburg, and then I was filed 10 with a divorce paper, and then I was filed with a 11 guardianship hearing thing. 12 Q Now, you were made aware through the 13 Petitioner's answers to our preliminary objections that Sean 14 had several things changed to meet his new address? 15 A Yes. 16 Q Here at 51 Kensington. Were you consulted at 17 all by your wife as to whether or not it was okay to change 18 his school district? 19 A No. 20 Q With regard to his Pennsylvania I.D. card, 21 were you made aware that he was going to do that? 22 A No. 23 Q So really the first time you knew that Sean 24 was going to be permanently residing in Cumberland County or 25 at least under his -- under your wife's intentions was not 14 until September 2nd? 2 A That is correct. 3 Q And, sir, you are requesting here today that 4 venue be transferred back to Cambria County; is that 5 correct? 6 A Yes. ~ Q And you have also retained counsel with 8 regard to any further actions in Cambria County, have you 9 not? 10 A Yes. 11 MR. ENGLE: Those are all of the questions I 12 have on direct, Your Honor. 13 THE COURT: Mr. Kerr. 14 MR. KERR: Yes. Just a few questions. 15 CROSS EXAMINATION 16 BY MR. KERR: 17 Q Mr. Aveni, you were served with the divorce 18 action -- you signed the certified mail receipt, right? 19 A That is correct. 20 Q And if I was to represent to you that was on 21 August 19th, would you have any reason to dispute that? 22 A No, no. was August 19th a Wednesday? 23 Q I really don't know. 24 A Okay. Like I said, I'm a little -- I won't 25 dispute it. If it was a Wednesday, that would be right 15 then. 2 Q So your wife left on August the 12th? 3 A That's correct. 4 Q Okay. So one week later you were served with 5 divorce papers? 5 A Yes. ~ Q Did you read the Divorce Complaint? g A I did. g Q Did you read the paragraph where it indicated 10 where your wife's residence was? 11 A Yes. 12 Q And where was that residence located at? 13 A 51 Kensington Drive, Camp Hill. 14 Q So you knew a week after she left that she 15 wasn't coming back because she indicated in the divorce 16 papers that she lived in Camp Hill, Pennsylvania? l~ A After I got the divorce papers, yes. 18 Q And you took action after that to lock her 19 out of the marital home, correct? You changed the locks? 20 A I did. 21 Q Okay. Now, you are not maintaining, are you, 22 that Sean is being educated presently in the Greater 23 Johnstown School District? 24 A He was up until September the 14th. He was 25 supposed to start school. 16 Q Are you aware as to whether the Greater 2 Johnstown School District has transferred all of his records 3 ~o the West Shore School District? 4 A I was as of yesterday. 5 Q Now, have you talked to Sean? 6 A Yes. ~ Q Since your wife left? g A Yes. g Q Is it fair to say that you speak with Sean on 10 almost a daily basis? 11 A A daily basis, sir. There may be one day I 12 don't talk to him, and then the following day I would talk 13 to him, yes. 14 Q Okay. So you haven't been excluded from 15 talking to Sean? 16 A Only if I would call Sean. Sean doesn't call 17 me no more. lg Q Okay. Is it true that when you call 19 frequently your wife answers the phone? 20 A She has a couple of times, yes. 21 Q Have you ever asked to speak to her? 22 A No, I have not. 23 Q Did you ever initiate a discussion and say, I 24 want Sean to come back to Johnstown? 25 A No. I would ask Sean that. 17 Q Why would you ask Sean that if you testified 2 that he is basically at a level of a 12 year old? 3 A I would just ask him if he's ready to come 4 home yet. 5 Q And what was his answer to you? 6 A Not yet. ~ Q How about did he ever say to you, leave it 8 go, dad? g MR. ENGLE: Your Honor, I'm going to object 10 to this as hea rsay, and furthermore, I believe it is 11 irrelevant as to whether or not venue is properly 12 established in Cumberland County. 13 THE COURT: Mr. Kerr, do you have a response 14 to the objecti on? 15 MR. KERR: I'll withdraw the question, Your 16 Honor. l~ THE COURT: Okay. 18 BY MR. KERR: 19 Q Now, you have testified as to his caregivers. 20 Isn't it true that most of the medical care he received was 21 at the spinal bifida clinic in Pittsburgh at Children's 22 Hospital? 23 A Yes. 24 Q And he goes there at least every year? 25 A Now he goes once a year, that's correct. 18 Q Okay. And that is not in Cambria County? 2 A That is not in Cambria County. 3 Q How far from Cambria County are these care 4 providers located? How long of a drive does it take you? 5 A Hour and a half, two hours. 5 Q Okay. And what kind of medical personnel 7 does he receive out of the Children's Hospital in 8 Pittsburgh? g A He sees a neurologist, a urologist, a social 10 worker, physical therapists, occupational therapists, most 11 -- the two most important things will probably be the 12 neurosurgeon and the neurologist. 13 MR. KERR: Okay. No further questions. 14 THE COURT: Okay. Mr. Masland. 15 MR. MASLAND: I have no questions. 16 THE COURT: Mr. Engle, anything further? 17 MR. ENGLE: No, Your Honor. 18 THE COURT: Okay. You may step down. Thank 19 you. 20 THE WITNESS: Thank you. 21 THE COURT: We will take a brief recess and 22 then resume. 23 (A recess was taken at 10:37 a.m., and court 24 resumed at 11:00 a.m.) 25 AFTER RECESS 19 THE COURT: Okay. Mr. Engle, any further 2 witnesses? 3 MR. ENGLE: Yes, Your Honor. I would like to 4 call Ms. Aveni as on cross. 5 THE COURT: Okay. 6 Whereupon, ~ ANITA M. AVENI g having been duly sworn, testified as follows: 9 AS ON CROSS 10 EXAMINATION 11 BY MR. ENGLE: 12 Q Ma'am, would you please state your name for 13 us? 14 A Anita Maria Aveni. 15 Q And, ma'am, where do you currently reside? 16 A 51 Kensington Drive, Camp Hill, PA. l~ Q And what date did you establish that 18 residence? 19 A I arrived there August 12th. 20 Q And are you currently employed? 21 A No. 22 Q No? 23 A No. 24 Q And prior to living at 51 Kensington Drive, 25 did you live elsewhere? 20 A Yes. 2 Q Where was that? 3 A 220 Erford Lane, Johnstown, PA. 4 THE COURT: Could you move that microphone or 5 speak a little more directly into it, closer to it I guess 6 is what I mean to say. Thank you. 7 BY MR. ENGLE: g Q And that is in Cambria County, correct? g A Yes. 10 Q And how long have you lived in Cambria County 11 prior to August 12th? 12 A Twenty-two, twenty-three years. 13 Q And do you have one child, Sean? 14 A Yes. 15 Q And you heard Mr. Aveni testify that he has 16 some special needs, correct? 1~ A Yes. 18 Q And would you agree with the assessment about 19 those needs? 20 A Yes. 21 Q And upon establishing your permanent 22 residence here on August the 12th, I believe, you had filed 23 a Divorce Complaint against your husband; is that correct? 24 A Yes. 25 Q And that was in Cumberland County? 21 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q And you both own a home in Cambria County, do you not? A Yes. Q And you did not file the Petition for Guardianship until after you filed the Divorce Complaint; is that correct? A Yes. Q How much later was that filed? Do you know? A Offhand I really don't. Q Was it a week or more than a week? A A week or two. It wasn't long. Q All right. And between the time that you filed the Divorce Complaint and the time that the Petition for Guardianship was filed, were you in the process of changing Sean 's address for purposes of Social Security? A For the purpose of Social Security? Q Yes, the Social Security address? His card, I'm sorry. A I changed his address for that? I changed his address because that is where we were going to live. I don't understand what you're asking. Q When did you change his address for Social Security? A It was in August. Around the 19th. 22 Somewhere around there, I believe. 2 Q Okay. And that was sometime on or after the 3 filing of the Divorce Complaint; is that correct? 4 A Yes. 5 Q But that was prior to the filing of the 6 Petition for Guardianship, correct? ~ A Yes. g Q And when did you change officially his school 9 district? 10 A He was accepted into the school district on 11 -- I believe it was September 4th they got the records from 12 Johnstown. 13 Q And that was done after the filing of the 14 complaint, b ut before or sometime after the filing of the 15 guardianship action, correct? 16 A I believe so. 17 Q And his voter registration as well was 18 changed? 19 A Yes. 20 Q And when was that changed? 21 A The same day we changed our address on the 22 I.D. and dri ver's license. 23 Q And, again, that was after the filing of the 24 Divorce Comp laint, correct? 25 A I believe so. 23 Q All right. Now, the changing of his address 2 for purposes of school, healthcare, voter registration, and 3 Social Security, did you consult with Mr. Aveni prior to 4 doing that? 5 A No. 6 Q And you heard Mr. Aveni testify as to what he 7 does physically to care for Sean. Do you dispute either his 8 ability or his willingness to care for Sean? g A I don't dispute his -- I dispute his ability 10 to take care of Sean, yes, but not his willingness. 11 Q What does Mr. Aveni do on a daily basis to 12 care for Sean? 13 A He puts him to bed at night. He gives him 14 his meds and cath. 15 Q And that is it? 16 A That is it. l~ Q What do you do for him? lg A I am there all day. I cath him. I bathe 19 him. I shave him. I take him to doctors appointments. I'm 20 there with him. 21 Q Okay. And you are not working, correct? 22 A No, I'm not. 23 Q And Mr. Aveni works? 24 A Yes, he does. 25 Q And you also have home healthcare? 24 A Yes. 2 Q Aides? 3 A Yes. 4 Q And that was through interim health care? 5 A Yes. 6 Q In Cambria County? ~ A Yes. 8 Q And how long have they been providing care g for Sean prior to August 12th? 10 A We have had home health aides for awhile. 11 Q More than a year? 12 A Yes. 13 Q More than two years? 14 A I would say yeah. 15 Q Now, I heard some cross examination about 16 Sean being taken to Pittsburgh Children's Hospital. l~ A Yes. 18 Q For his various procedures and so forth? 19 A Once a year, yes, a checkup. 20 Q Have you made arrangements with Pittsburgh 21 Healthcare to transfer his records for ongoing care to 22 somewhere in Cumberland County? 23 A No. 24 Q Have you made arrangements to transfer them 25 elsewhere? 25 A Transfer his records from Pittsburgh? 2 Q Yes. 3 A No. 4 Q Have you made arrangements for his care 5 elsewhere other than in Pittsburgh? 6 A Yes, we have changed his pediatrician to 7 Doctor Kathry n Gallagher. 8 Q And where is she located? 9 A In Dillsburg. 10 Q And she is a neurologist? 11 A No. 12 Q Is she a urologist? 13 A No. 14 Q Is she a social worker? 15 A No. 16 Q Does she provide physical therapy? 17 A No. 18 Q Okay. So everything that you are discussing 19 ghat he would be cared for in Pittsburgh is not the same? 20 A He has a urologist now, yes. 21 Q Where is he located? 22 A Doctor Prudencio. He's located in -- I guess 23 it's Mechanicsburg, Harrisburg somewhere. 24 Q And that was this recent change after August 25 the 12th? 26 A Yes. 2 Q And was Mr. Aveni consulted about any of 3 these changes? 4 A No. 5 Q Now, Sean is currently residing here, based 6 upon what your petition states or your answers to the 7 P.O.'s. Was Sean ever consulted as to what he wanted? 8 A I have asked Sean who he wants to live with. 9 If he was happy. 10 Q And now Sean has been living here at 11 Kensington Avenue for approximately 8 weeks, give or take? 12 A Yeah. Yes. 13 Q How much time would he spend with his 14 relatives in Camp -- or in -- I'm sorry, at Kensington 15 Avenue prior to August the 12th? 16 A A couple times a year. 17 Q And for what duration of time? 18 A Weekends. A day here. 19 Q But never eight weeks straight? 20 A No. 21 Q And what relatives does he have in the 22 Cumberland County area? 23 A His grandmother and his grandfather. 24 Q And what relatives does he have in Cambria 25 County besides his father and his uncle? 27 A His grandmother and his grandfather. 2 Q And how often would he see them? 3 A Once every couple weeks. 4 Q Would they come to see him as well? 5 A No, not anymore. 6 Q They have physical disabilities? 7 A She doesn't. He does. 8 Q Now, did you ever discuss with Mr. Aveni on 9 August the 12th when you left with Sean that you were going 10 to permanently relocate Sean to Cumberland County? 11 A No. 12 MR. ENGLE: Those are all of the questions 13 that I have, Your Honor. 14 THE COURT: Mr. Kerr. 15 MR. KERR: Yes. 16 EXAMINATION 17 BY MR. KERR: 18 Q Anita, why did you move to Camp Hill? 19 A Because there's too much conflict between 20 Mark and I. 21 Q And did he understand you were coming to Camp 22 Hill? 23 A Yes, he did. 24 Q And you brought your son with you? 25 A Yes, I did. 28 Q Why did you tell Sean that you were moving to 2 Camp Hill? 3 A Because mommy and daddy fight too much. 4 Q And what was his understanding? 5 MR. ENGLE: I'm going to object based on 6 hearsay, and it is not relevant. The guardianship has not 7 yet been determined. 8 THE COURT: Okay. Mr. Kerr, do you have a 9 response? 10 MR. KERR: I mean I think it follows 11 completely in line with what he was asking on direct. I 12 think it is relevant. 13 THE COURT: Okay. 14 MR. KERB: We're talking about venue. We're 15 talking about -- you know, their position is Sean did not 16 understand what was going on. They stated that right in 17 their preliminary objections. So I think I would have a 18 right to bring that out. 19 THE COURT: Well, you may ask what Sean said 20 in regard to his understanding, but not what she thinks he 21 understood. Mr. Masland, do you have a position on this? 22 MR. MASLAND: I think it would be fair for 23 her to answer what Sean has told her. For that matter, 24 Mr. Aveni could do the same as to what Sean has told him. 25 THE COURT: All right. Go ahead, Mr. Kerr. 29 BY MR. KERR: 2 Q What has S ean told you? 3 A That he wants to live with mommy. 4 Q Okay. 5 THE COURT: How are we marking these 6 exhibits? 7 MR. KERR: Petitioner's 1. 8 THE COURT: Well, on the preliminary 9 objections I guess the other side is the Petitioner. Why 10 don't we mark these as your client's name rather than -- 11 MR. KERR: Well, they both have the same last 12 name. 13 THE COURT: I understand, but she has a first 14 name. 15 MR. KERR: Anita 1? Is that how you want it? 16 THE COURT: That's fine. 17 (Anita Exhibit No. 1 was marked for 18 identificatio n.) 19 BY MR. KERR: 20 Q Anita, can you identify that exhibit for me? 21 THE COURT: Well, first how has this exhibit 22 been marked? 23 BY MR. KERR: 24 Q Looking at Anita No. 1, can you identify 25 that? 30 A It is a letter stating that Sean is enrolled 2 at West Shore School District. 3 MR. ENGLE: Your Honor, I would object 4 generally to this document as hearsay. 5 THE COURT: As hearsay? 6 MR. ENGLE: Yes, Your Honor. 7 THE COURT: Okay. Mr. Kerr. 8 MR. KERR: They have raised -- in their 9 preliminary objections they've averred that he attends 10 school in Johnstown. I think we have a right to introduce 11 documents to show that that's not true. 12 THE COURT: Okay. Mr. Masland. 13 MR. MASLAND: To the extent that this 14 document is something that Ms. Aveni has received, I imagine 15 it could be introduced. Whether they need someone from the 16 school district to verify, I don't know that that is 17 essential. We could have Sean come in and testify, I don't 18 think that would be in his best interests, to say where -- 19 from whom he's receiving instruction. 20 THE COURT: All right. The objection on 21 hearsay grounds is sustained. You can have the witness say 22 where he's in school. 23 BY MR. KERR: 24 Q Can you describe the circumstances in which 25 you registered Sean for school in this area? 31 A I went to the West Shore School District 2 office and r egistered him for school and got him homebound 3 instruction like he was receiving in Johnstown. 4 Q And when did his instruction begin? 5 A He was accepted into the school district on 6 the 4th of S eptember. He's had three -- I want to say two 7 weeks he's b een in school. 8 Q And who is his instructor? 9 A Leah, and I don't know how to pronounce her 10 last name. 11 Q How often does she come to the house? 12 A Twice a week. 13 Q Does he receive any other services from the 14 West Shore S chool District? 15 A Yes. He receives physical therapy and 16 occupational therapy. 17 Q And who are the individuals that come to your 18 house? 19 A Mary is the physical therapist, and I'm not 20 sure yet who the O.T. is. 21 Q How often do they come to your house? 22 A Biweekly. 23 Q Okay. 24 (Anita Exhibit No. 2 was marked for 25 identification.) 32 BY MR. KERR: 2 Q I have placed an exhibit that's marked as 3 Anita 2. Can you identify that for the record? 4 A That is my driver's license with my new 5 address, and it is Sean's I.D. card with his new address. 6 Q And when did he go to PennDOT to effect that 7 transfer? 8 A The end of August. 9 Q Okay. 10 A The 17th of August. 11 Q And what is the address listed for his 12 identification card? 13 A 51 Kensington Drive, Camp Hill, PA. 14 (Anita Exhibit No. 3 was marked for 15 identification.) 16 BY MR. KERR: 17 Q I have placed in front of you an exhibit 18 identified as Anita 3. Can you identify that for the 19 record? 20 A It is Sean's new voter registration card. 21 Q And do you know when his registration -- this 22 registration was effected? 23 A October 14th, 2007, is when he enrolled. I 24 don't see a date on here for when we applied for it. 25 9/15/2009. 33 Q Okay. 2 THE COURT: Now, this is a voters 3 registration? 4 THE WITNESS: Yes. 5 THE COURT: And does Sean vote? 6 THE WITNESS: Yes, he does. 7 (Anita Exhibit No. 4 was marked for 8 identification.) 9 BY MR. KERR: 10 Q I have placed before you an exhibit that's 11 marked as Anit a No. 4. Can you identify what that is? 12 A It is the new Social Security card. 13 Q What address is indicated for this new Social 14 Security card? 15 A 51 Kensington Drive, Camp Hill, PA. 16 Q Okay. 17 THE COURT: Has Sean signed any of the 18 paperwork for these applications or changes? 19 THE WITNESS: When we went to apply he 21 THE COURT: Apply for what? 22 THE WITNESS: Well, when we had to change his 23 I.D., he had to sign a piece of paper, and I believe he had 24 to sign for the -- I don't know if he had to sign for the 25 Social Security card, but he did sign papers, and then I 34 would sign underneath them. 2 THE COURT: All right. Mr. Kerr. 3 (Anita Exhibit No. 5 was marked for 4 identification.) 5 BY MR. KERR: 5 Q I have placed before you an exhibit that is 7 marked Anita 5. Can you identify Anita 5? 8 A Yes. It is a representative payee report 9 from Social Security. 10 Q What does it indicate as to the individual's 11 -- or your role? 12 A I am the representative payee for Sean. 13 Q Is your husband also a representative payee? 14 A No. 15 Q Since the time that you have moved down here, 16 have you altered the address in the bank account that his 17 Social Security funds? 18 A Yes. 19 Q And where will the Social Security come to 20 now? 21 A 51 Kensington Drive. 22 Q And does he have a bank account in this area? 23 A Yes. 24 Q And where might that be? 25 A It is First National Bank, and I'm not sure 35 what road it is on. 2 Q Is it in Cumberland County? 3 A Yes, it is. 4 Q Okay. Now, where were his Social Security 5 funds deposit ed before? 6 A In a joint checking account of Mark and I. 7 Q Okay. And since moving to this area has Sean 8 received his funds that were deposited into that bank 9 account? 10 A He didn't receive August's. He received 11 September's v ia money order, and Social Security sent 12 October's to 51 Kensington Drive. 13 Q And who sent the money order for September 14 2009? 15 A Mark. 16 Q Okay. Has he explained to you why he has not 17 forwarded Sea n's funds for August? 18 A No. 19 Q And as far as you know, he has kept those 20 funds for his own from August 2009? 21 A Yes. 22 THE COURT: For how long have you been this 23 Social Securi ty representative payee? 24 THE WITNESS: Since Sean was born. 25 THE COURT: Okay. 36 THE WITNESS: Or since he received Social 2 Security. Si nce he received Social Security. 3 THE COURT: And that's been how long? 4 THE WITNESS: I don't know if he got it right 5 after he was born or if it was a couple years after that. 6 THE COURT: Okay. Mr. Kerr. 7 BY MR. KERR: 8 Q How much does he receive a month? 9 A $674, and then he receives from the State 10 $2740, I beli eve. 11 Q Did there come a time after you moved down 12 here when you telephoned your husband because Sean had no 13 money and he needed money? 14 A Yes. 15 Q And tell me a little bit about that 16 conversation with your husband. 17 MR. ENGLE: I am going to object generally. 18 I think this is irrelevant to the determination of venue. I 19 have no idea what this is relevant to. 20 THE COURT: Mr. Kerr. 21 MR. KERR: Well, it is certainly relevant to 22 the venue arg uments that they have raised. They are 23 claiming that everything is out there, and it is not out 24 there. We ha ve a burden of showing by clear and convincing 25 evidence that there has been an intention to permanently 37 move down here, and I think it fits right in line with the 2 direct examination and what they have pleaded in their 3 preliminary objections. 4 THE COURT: How does Mr. Aveni's reaction to 5 requests for money play -- how will that help me decide 6 where venue should be? ~ MR. KERR: Well, we're talk -- okay. I'm not 8 sure. There is a lot of things that they pleaded in their 9 preliminary objections that I am not sure strictly relates 10 to the venue issue. I am just presenting evidence to show 11 that there was an intention to move down here. There's been 12 an intention to remain here as a resident and to remain here 13 on a permanent basis. 14 THE COURT: What is pled in the preliminary 15 objection that this question goes to? 16 MR. KERR: Well, that there is a bank account 17 in Johnstown, and his Social Security funds go into that 18 bank account. 19 THE COURT: Okay. Mr. Masland, do you have a 20 position? 21 MR. MASLAND: I have no position. 22 THE COURT: Okay. The objection is 23 sustained. 24 DY MR. KERR: 25 Q Let's talk about Sean's caretakers. Does he 38 receive physical therapy? 2 A Yes. 3 Q And where is the physical therapy located? 4 A 51 Kensington Drive. 5 Q Okay. And who provides those services? 6 A West Shore School District. 7 Q Does he receive services from any aides? 8 A Yes. We have an LPN that comes 28 hours a 9 week, her name is Brenda, and we have a CNA who comes 12 10 hours a week, and her name is Debbie. 11 Q Does Sean have any physicians in this area? 12 A Yes. He has Doctor Gallagher, which is his 13 primary physician. Because he is age 19, he didn't need a 14 pediatrician anymore. And Doctor Prudencio, who is a 15 urologist who is treating him right now for an infection. 16 Q Now, counsel asked you on direct exam whether 17 you had changed any health records from Pittsburgh. Is it 18 your intention that Sean would still go to the spinal bifida 19 clinic? 20 A Yes, until he is 21. 21 Q And what type of services does he get from 22 the spinal bifida clinic? 23 A It is routinely just urologists, the 24 neurosurgeon, orthopedics, endocrinology, just like a 25 checkup with every specialty doctor that deals with Sean. 39 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The pulmonologist. Q And it is fair to say none of those individuals were located in Cambria County? A No. Q What physician was located in Cambria County? A His pediatrician, Franklin Pediatrics. Q And he no longer needs the services of a pediatrician? A No. Q Did Sean require urgent medical care yesterday? A Yes. Q And who was he taken to? A Doctor Prudencio. Q And what was the issue? A A urinary tract infection, and he had two kidney stones, one in each kidney. Q Did Sean's father ever object to your moving to Camp Hill? A No. Q Has he ever asked to come here and see his son? A No. Q Are you in any way obstructing his access to his son? 40 A No. 2 Q Do you have any objection if he sees his son 3 on a regular basis? 4 A No. 5 Q What about Sean's MHMR case file, can you 6 tell me about that? 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A As of October 31st, it will be discontinued at Cambria County, and on November 1st it will be opened in Cumberland County. Q Now, you testified in response to a question from counsel that you didn't feel that your husband had the ability to care for Sean. Can you elaborate on that? A I think Mark is careless at times when it comes to taking care of Sean, and Mark has never been the one to pick up on infections or anything that is wrong. Q Can you tell the Court what kind of things go wrong, and generally what he suffers from? A He suffers from seizures. He has what they call dumping syndrome, where his sugar level will drop and he will take seizures. He gets a lot of urinary tract infections. Mark doesn't wash his hands before he caths him. Q How many times do you cath him a day? A Four times a day. Q How much of your time on a daily basis since 41 Sean's been born have you cared for him? 2 A All my life. All his life. 3 Q Well, has it been just during the day until 4 Mark gets home? 5 A No. It goes on every day all day, whenever 6 Sean needs me. 7 Q Do you intend to remain in the Camp Hill 8 area? 9 A Yes, I do. 10 MR. KERR: No further questions. 11 THE COURT: Okay. Mr. Engle. 12 MR. ENGLE: Thank you, Your Honor. Ma'am -- 13 THE COURT: Well, let's see, Mr. Masland -- 14 MR. MASLAND: I have no questions. 15 THE COURT: You have no questions. Okay. 16 Mr. Engle. 17 EXAMINATION 18 BY MR. ENGLE: 19 Q Ma'am, I am a little curious. You indicated 20 on direct or cross exam to me that you never indicated to 21 Mr. Aveni that you intended to permanently move to 22 Cumberland County; is that correct? 23 A No, I did not tell him that. No. Is that 24 what you're asking? 25 Q Right. So he never objected, correct, 42 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because you didn't tell him you were intending to come here to stay for good? A No. Q What did you tell him? That you were coming for a temporary stay? A That we needed to be away from each other, and we needed time apart. Q And was it Sean's idea to change his voter registration to Cumberland County or was it yours? A It was mine. Q was it Sean's idea to change his state I.D. registration to Cumberland County or was it yours? A Mine. Q Was it his idea to change the -- to move himself to the West Shore School District and register there or was it yours? A Mine. Q And I would assume any and all decisions that regard the health, safety and welfare were made by you as it relates to Sean; is that correct? A Correct. Q And did you ever consult with Mr. Aveni prior to doing any of that? A No. Q And it's your belief, I am assuming based 43 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 upon the petition that has been filed at your behest that Sean is, in fact, incompetent and in need of a guardian? A Yes. Q Now, you indicated that Sean indicated to you that he wants to live with you? A Yes. Q Did Sean ever indicate to you that he doesn't want to have any contact with his father? A No. Q Did Sean ever indicate to you that he wanted to move from Cambria County? A No. Q You made that decision for him? A Yes. Q Without consulting my client? A Yes. MR. ENGLE: No further questions. THE COURT: Mr. Kerr. EXAMINATION BY MR. KERR: Q Anita, how often had you discussed divorce with your husband prior to moving in August? A A lot of times. As soon as July. I left in August. We discussed divorce in July. Q When you discussed divorce, did you discuss a 44 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 physical separation? A Yes. Q Was it the understanding when you were discussing this that Sean would go with you? A It was always assumed Sean would go with me. MR. KERR: No further questions. THE COURT: Mr. Masland. MR. MASLAND: No questions. THE COURT: Mr. Engle. MR. ENGLE: Nothing further, Your Honor. THE COURT: Okay. Can Sean be left alone at home? THE THE THE THE may step down. Th. THE MR. Honor. WITNESS: No. COURT: Have you ever left him alone? WITNESS: No. COURT: Any other questions? If not, you ink you. WITNESS: Thank you. ENGLE: I have no further witnesses, Your THE COURT: Okay. Mr. Kerr. MR. KERR: No witnesses. THE COURT: Mr. Masland. MR. MASLAND: Nothing to add, Your Honor. THE COURT: All right. Do counsel wish me to 45 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 speak with Sean? MR. ENGLE: I don't think it is necessary based upon the testimony. MR. MASLAND: I would suggest if it be done, it be done in chambers. THE COURT: Mr. Kerr. MR. KERR: I think it might be a good idea. THE COURT: All right. Will it be agreeable to have counsel in chambers, but not the parties, that is the mother and father? MR. KERR: Yes. MR. ENGLE: Yes, Your Honor. THE COURT: Okay. We'll resume in chambers with Sean. (Th. MR. THE THE MR. here. You haven't MR. THE MR. you know Mr. Kerr, THE following occurred in chambers.) MASLAND: Sean, this is Judge Oler. COURT: Hi. Nice to meet you. WITNESS: Hi. MASLAND: I will sit right beside you met Mr. Engle yet. ENGLE: Hi, Sean. WITNESS: Hi. MASLAND: He's your daddy's lawyer, and your mommy's lawyer. WITNESS: Yeah. 46 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Do you want me to swear Sean in to ask him questions or just do this more informally? MR. KERR: I think informally. MR. ENGLE: I think so. MR. MASLAND: He'll tell you the truth. He'll tell you what he's thinking. THE COURT: All right. Sean, this is what is called a guardianship proceeding, and a question has arisen as to where you are living, where your residence is. Now, I realize that right at the moment you are living with your mother. THE WITNESS: Yeah. THE COURT: Where do you regard your permanent home to be at this point? Do you think it is with your father or with your mother? THE WITNESS: Mom. THE COURT: With your mother? THE WITNESS: Yeah. THE COURT: Are you satisfied with that? THE WITNESS: Yes. THE COURT: All right. Okay. Any other questions by counsel? MR. KERR: You may want to ask him if he understands why he came here. THE COURT: Well, I don't want to put too 47 much pressure on him because I'm sure it's difficult. 2 Obviously both your parents want to be with you more. 3 THE WITNESS: Yes. 4 THE COURT: And you understand that? 5 THE WITNESS: Yes, I know. 6 MR. MASLAND: And you love both of your 7 parents? 8 THE WITNESS: Yeah. Oh, yeah. 9 THE COURT: All right. If there is nothing 10 further, thank you very much. Nice to meet you. 11 THE WITNESS: See you.. 12 (The proceedings resumed in open court.) 13 THE COURT: Please be seated. We will let 14 the record indicate that the Court has conferred in chambers 15 with Sean, who seems to be a very nice young man and makes a 16 very nice impression, and all counsel were present. Is 17 there any further evidence to be submitted in the case? 18 MR. KERR: No. I just need to move for the 19 admission of Anita 2, 3, 4, and 5. 20 MR. ENGLE: No objection, Your Honor. 21 THE COURT: And Mr. Masland. 22 MR. MASLAND: No objection, Your Honor. 23 THE COURT: All right. Anita Exhibits 2, 3, 24 4, and 5 are admitted. 25 (Anita Exhibits 2, 3, 4, and 5 were admitted 48 into evidence.) 2 THE COURT: And did counsel wish to make 3 brief closing arguments? 4 MR. ENGLE: We do, Your Honor. 5 THE COURT: All right. 6 MR. ENGLE: Do you prefer we do it here? 7 THE COURT: Wherever you are comfortable is 8 fine. 9 MR. ENGLE: Your Honor, prior to our hearing 10 today I did supply the Court with a packet of cases which I 11 felt were relevant to the Court's determination in this 12 matter. The case that I would like to point out was not in 13 my P.O.'s, the case of In Re: Forsyth Estate, which stands 14 for the proposition that with regard to the appointment of a 15 guardian of an adult incompetent, that the Court should 16 consider it similar to a child custody case, and basically 17 determine what is in the best interests of the child, and 18 that is a very short case, but nonetheless I think it is an 19 important one. 20 THE COURT: What is the cite for that? 21 MR. ENGLE: Sure, Your Honor. That is a 22 D & C case, 12 Pa. D & C third 368, a case out of Fayette 23 County. 24 THE COURT: You say that was 368? 25 MR. ENGLE: 368, Your Honor. 49 THE COURT: All right. 2 MR. ENGLE: The cases that I have cited to in 3 my P. O.'s, Your Honor, first is a case that stands for the 4 proposition of domicile, which is In Re: Publicker's Estate 5 cited at 123 A.2d 655, a 1956 Supreme Court case, in which 6 the Court points out that the domicile of a person -- and 7 again, this is with regard to the Pennsylvania Estates and 8 Fiduciary Code -- that the domicile of a person is a place 9 where he has voluntarily fixed his habitation with the 10 present intention to make it either his permanent home or 11 his home for the indefinite future. 12 I would agree with counsel -- opposing 13 counsel that in this case there has been a physical presence 14 established in Cumberland County, and further there has been 15 an intention to make it his home. However, the intention 16 has not been that of the incompetent. It is the intention 17 of the mother to make it his permanent home. 18 Further, he has not voluntarily come to 19 Cumberland County to make it his fixed place of habitation. 20 By all intents and purposes, mother took him on August 12th 21 without telling father. She admitted to that, much to her 22 credit, that, you know, they were going through some 23 difficult times, and essentially took him to Cumberland 24 County to reestablish her abode here, as well as his. 25 I would submit to the Court that domicile of 50 Mr. Aveni has not .been established in this jurisdiction, and 2 accordingly the Court cannot rule as to whether or not he's 3 competent, but I would ask that venue be transferred back to 4 Cambria County. 5 And the final case that I just want to point 6 out is a 1953 case, 373 Pa. 423, In Re: I believe it is 7 pronounced Du Pui, D-u separate word P-u-i, Du Pui estate, 8 which points out that domicile and residence are two 9 completely non-interchangeable items, and that domicile 10 within the county is a jurisdictional prerequisite to the 11 wife's proceeding for the appointment of a guardian of the 12 estate of her allegedly weak-minded husband unable to care 13 for his own estate. 14 Here we have a very similar situation except 15 we have a son who is allegedly weak-minded, and I would 16 point out to the Court that at no time did Sean ever intend 17 to permanently reside or move to Cumberland County for 18 purposes of establishing his domicile, and I would, 19 therefore, submit that the appropriate place for this 20 adjudication of Sean would be back in Cambria County where 21 he has resided all of his life up until August the 12th. 22 THE COURT: All right. And the exact words 23 of the statute regarding a venue are what? 24 MR. ENGLE: I believe I cited to it in my 25 P.O.'s, Your Honor. 51 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: All right. Does it use the word domicile as opposed to residence or does it use both? MR. KERR: It says or. MR. MASLAND: Your Honor, it uses both in Section 5512, 20 Pa.C.S.A. 5512 (a) it says the Court in which the incapacitated person is domiciled, is a resident or is residing in a. long-term care facility. THE COURT: All right. Thank you. Mr. Kerr. MR. KERR: Yes, Your Honor. I think that your interview with Sean answers all of the questions that counsel has raised in that he understands that his parents aren't getting along, and he clearly indicated that he wants to live with his mother. THE COURT: Well, that was in chambers, and I heard what he said. He basically indicated he loved both parents, and that is sufficient. Go ahead. MR. KERR: Well, you know, I think the facts of this case fit in with all of the case law that opposing counsel cited. Particularly with the citation of the statute that Mr. Masland has just read to you where it says a guardian may be appointed where the incapacitated person is domiciled or is a resident. He is clearly a resident here, and I believe that he understood that he was coming down here because his parents could not get along, and that it was in essence a 52 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 voluntary act by him that he understood, but based on my client's testimony, he had to go with her. She was the primary caregiver for 19 plus years. Where she went, he had to go. All the caregivers are here now. The educational facilities are here. The only thing that is not here is what is located in Allegheny County, which is being maintained the same as it has been for the past number of years. So the other thing I would point out, Your Honor, is the P.O.'s also indicated the nature of the transfer of venue. Rule 1028 of the Rules of Civil Procedure indicate that's not proper for preliminary objections. This is solely an issue as to whether venue is proper here or not, and I think venue is proper here. I think that they have established an indication to make a permanent home here or for the indefinite future, which fits right in with counsel's cited case of In Re: Publicker's Estate, a 1956 case, 123 A.2d 658. Thank you. THE COURT: All right. Thank you. Mr. Masland, what is your position on behalf of the child? MR. MASLAND: Very briefly, Your Honor, it is challenging to argue a venue issue like this, but there is a few things I think on Sean's behalf I would like to raise. Under Section 5502, 20 Pa.C.S.A. the legislature 53 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 specifically set this whole section up dealing with guardianships, and they designed the system, and I quote, which permits incapacitated persons to participate as fully as possible in all decisions which affect them, end quote. Sean may not be capable of participating in every decision. He may not be capable physically of participating in decisions about where to live or where to move. I think the most telling thing though, as the Court noted, is that Sean loves both of his parents. And I would point out in that respect that under 5514, a court may appoint co-guardians. I realize this is a limited venue issue now, but I do point that out for the Court's benefit, that that is something which is possible for the Court to do, and I would just suggest that wherever Sean lives, I hope the parties have his best interests in mind and make sure that there is plenty of contact with both mother and father. So more important than venue is that, Your Honor. THE COURT: All right. Thank you very much. We will take it under advisement. I realize it is necessary to make a decision quite promptly because there is a hearing scheduled for next week if the case stays in Cumberland County. So I would hope by the end of the day today to have an order entered. Very nicely presented by both counsel, and by Mr. Masland on behalf of the child, and I'm sorry 54 things haven't worked out in your marriage, but you have a 2 very nice child, very impressive. So with that we will 3 adjourn. I will enter this order: 4 AND NOW, this 2nd day of October, 2009, upon 5 consideration of the preliminary objections filed by Mark R. 6 Aveni in the nature of a Petition To Transfer Venue, and 7 following a hearing held on this date, the record is 8 declared closed and the matter is taken under advisement. 9 (The proceedings concluded.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 55 ERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of same. C r Michele A. Eline Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Date ~ Wesley `O) r, Jr. J. 'nth Judicial District 56