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Home My WebLink About04-4217it WILLIAM A. LAYTON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 2004 - 5/4-) CIVIL TERM CAROL B. LAYTON Defendant IN CUSTODY COMPLAINT FOR CUSTODY 1. Plaintiff is William A. Layton, an adult individual, currently residing at 7 Ascot Lane, Carlisle, Cumberland County, Pennsylvania, 17013-1790. 2. Defendant is Carol B. Layton, an adult individual, currently residing at 63 Partridge Circle, Carlisle, Cumberland County, Pennsylvania, 17013-8765. 3. Plaintiff seeks custody of the following child: Rachel G. Layton, age three, born February 18, 2001. The child was not born out of wedlock. The child is presently in the custody of Defendant, who resides at 63 Partridge Circle, Carlisle, Cumberland County, Pennsylvania, 17013-8765. During the past five years, or since the child's birth, she resided with the following persons at the following addresses: Persons Residences Carol B. Layton William A. Layton Carol B. Layton 63 Partridge Circle Carlisle, Pennsylvania 7 Ascot Lane Carlisle, Pennsylvania Dates August 2004 to Present August 2001 to August 2004 William A. Layton 27 Country View Estates October 1995 to August 2001 Carol B. Layton Carlisle, Pennsylvania The natural mother of the child is Carol B. Layton, currently residing at 63 Partridge Circle, Carlisle, Cumberland County, Pennsylvania, 17013-8765. She is married. The natural father of the child is William A. Layton, currently residing at 7 Ascot Lane, i Carlisle, Pennsylvania 17013-1790. He is married. 4. The relationship of the Plaintiff to the child is that of Father. The Plaintiff currently resides with the following persons: (a) None. 5. The relationship of the Defendant to the child is that of Mother. 6. Plaintiff has not participated as a party or witness, or in any other capacity in other litigation, concerning the custody of the children in this or in any other Court. Plaintiff has no information of a custody proceeding concerning the child pending in a court of this Commonwealth. i Plaintiff does not know of a person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child. 7. The best interest and permanent welfare of the child will be served by granting the relief requested because: (a) The child will benefit from maximizing time with both parents; (b) The parties live in close proximity to one another, which will facilitate exchanges of the child. 8. Each parent whose parental rights to the child have not been terminated and the person who has physical custody of the child have been named as parties to this action. All other persons, named below, who are known to have or claim a right to custody or visitation of the child will be given notice of the pendency of this action and the right to intervene. NAME ADDRESS BASIS OF CLAIM WHEREFORE, Plaintiff requests your Honorable Court to grant shared physical custody of the child. Respectfully submitted, 04AIZV Date: August 41 , 2004 Michael A. Scherer, Esquire O'BRIEN, BARIC & SCHERER 19 West South Street Carlisle, PA 17013 (717) 249-6873 CAROL B. LAYTON, Plaintiff V. WILLIAM A. LAYTON Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004 - 3094 CIVIL TERM IN DIVORCE VERIFICATION I verify that the statements made in the foregoing Complaint for Custody are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. t'd LL"- 411, A William A. La on DATE: August do 2004 S? ?. G ? ? ? ?? G - d u WILLIAM A. LAYTON IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. 04-4217 CIVIL ACTION LAW CAROLB.LAYTON IN CUSTODY DEFENDANT ORDER OF COURT AND NOW, Tuesday August 31, 2004 upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse Carlisle on Friday, (September 24, 2004 at 8:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. 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 prier to scheduled hearing. FOR THE COURT, By: /s/ facgueline M Vernc y Esg• mhc 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 1.7013 Telephone (717) 249-3166 OCT 1 3 2004 WILLIAM A. LAYTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004-4217 CIVIL TERM : CIVIL ACTION - LAW CAROL B. LAYTON, Defendant : IN CUSTODY ORDER OF COURT AND NOW, this 2A day ofC? , 2004, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. The Father, William A. Layton, and the Mother, Carol B. Layton, shall have shared legal custody of Rachel G. Layton, born February 18, 2001. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding her health, education and religion. Mother shall have primary physical custody of the Child. 3. Father shall have partial physical custody as follows: A. Alternating weekends from Thursday at 3:30 p.m. to Monday at 6:00 a.m. B. Every Tuesday from 3:30 p.m. to 8:00 p.m. C. When Father does not have custody on the alternating weekend schedule, then Thursday from 3:30 p.m. to 8:00 p.m. D. Such other times as the parties agree. 4. Thanksgiving shall be shared such that Father shall have physical custody of the Child from Wednesday at 4:00 p.m. to Thursday at 5:00 p.m. Mother shall have physical custody of the Child from Thursday at 5:00 p.m. to Friday at 5:00 p.m. Father shall have physical custody from Friday at 5:00 p.m. to Monday at 5:00 p.m. 5. Christmas shall be divided into two Blocks. ]Block A shall be from December 23 at 5:00 p.m. to Christmas Day at 12:00 noon. Block B shall be from Christmas Day at 12:00 noon to December 27 at 6:00 a.m. Mother shall have Block A in even numbered years and Block B in odd numbered years. Father shall have Block A in odd numbered years and Block B in even numbered years. 6. The parties shall share other holidays as agreed. 7. The parties shall participate in co-parenting counseling with a counselor agreed by the parties. 8. Each party shall be entitled to two non-consecutive weeks (7 consecutive days) in the summer provided they give the other party 30 days prior notice. The parties' alternating weekend shall be included in their seven day period. 9. Neither party shall do or say or permit a third party to do or say anything that may estrange the Child from the other party, or injure the opinion of the Child as to the other party, or may hamper the free and natural development of the Child's love or affection for the other party. 10. Father shall be responsible for all transportation, unless otherwise agreed. 11. The parties may take the Child out of state provided they advise the non- custodial parent of the location and telephone number where the Child may be contacted. 12. In the event either party is unavailable to care for the Child overnight, they shall contact the other party and offer the overnight opportunity to the non-custodial parent. 13. This Order has been entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. Either party may contact the Conciliator to schedule another conciliation conference within 90 days of this Order. cc: chael A. Scherer, Esquire - Counsel for Father ,,8amuel Andes, Esquire - Counsel for Mother 11 (1 1a-2L_0V 33:1 WILLIAM A. LAYTON, Plaintiff V. CAROL B. LAYTON, Defendant PRIOR JUDGE: None : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :2004-4217 CIVIL TERM : 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 Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Rachel G. Layton February 18, 2001 :Mother 2. A Conciliation Conference was held in this matter on October 12, 2004. Father, William A. Layton was present with counsel, Michael A. Scherer, Esquire, and Mother, Carol B. Layton, was present with counsel, Samuel Andes, Esquire. 3. The parties agreed to an Order in the form attached. Date Jac eline M. Verney, Esquire Custody Conciliator JAN 2 8 2005 1? WILLIAM A. LAYTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004-4217 CIVIL TERM : CIVIL ACTION - LAW CAROL B. LAYTON, Defendant : IN CUSTODY ORDER OF COURT AND NOW, this IS ?- day of 2005, upon consideration of the attached Custody Conciliation Report, it is or ed and directed as follows: 1. The prior Order of Court dated October 21, 2004 shall remain in full force and effect with the following modifications. 2. Paragraph 3 shall be modified to provide as follows: A. Alternating weekends from Thursday at 3:30 p.m. to Monday at 7:00 a.m. The child should be provided breakfast prior to return. B. Every Tuesday from 3:30 p.m. to 7:30 p.m. C. When Father does not have custody on the alternating weekend schedule, then Thursday from 3:30 p.m. to 7:30 p.m. D. Such other times as the parties agree. 3. Paragraph 7 shall be modified to provide as follows: The parties shall participate in co-parenting counseling with Stephie Devine of Small Associates. 4. This Order has been entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. Another Conciliation Conference is scheduled for March 24, 2005 at 8:30. a.m convlichael A. Scherer, Esquire - Counsel for Father "Samuel Andes, Esquire - Counsel for Mother ? r ?z-oo 10 :1 t l "- 23A S:]11z JW22882905?f- WILLIAM A. LAYTON, Plaintiff V. CAROL B. LAYTON, Defendant PRIOR JUDGE: None : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :2004-4217 CIVIL TERM : 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: The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Rachel G. Layton February 18, 2001 Mother 2. A Conciliation Conference was held in this matter on January 28, 2005. Father, William A. Layton was present with counsel, Michael A. Scherer, Esquire, and Mother, Carol B. Layton, was present with counsel, Samuel Andes, Esquire. 3. A prior Order of Court was entered by the Honorable Edgar B. Bayley dated October 21, 2004 providing for shared legal custody, Mother having primary physical custody and Father having alternating weekends, every Tuesday evening and alternating Thursday evenings. 4. The parties agreed to an Order in the form attached. M Date j4cqu ne M. Verney, Esquire Custody Conciliator ow- RECEIVED APR 06 inn; WILLIAM A. LAYTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. :CIVIL ACTION -LAW CAROL B. LAYTON, : NO. 2004-4217 CIVIL TERM Defendant IN CUSTODY ORDER OF COURT AND NOW, this day of 2005, upon consideration of the attached Custody Concili tion Report, it is ordered and directed as follows: I . A Hearing is scheduled in Cou Room o. __I, of the Cumberland County Court House, on the -ad day of 2005, at l7 o'clock, _k. M., at which time testimony will betaken. For purposes of this Hearing, the Father shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be expected to testify at the Hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least ten days prior to the Hearing date. 2. Pending further Order of Court or agreement of the parties, the prior Orders of Court shall remain in full force and effect with the following addition: 3. In the event that either party is in need of a babysitter for more than five hours, they shall contact the other party and offer said babysitting opportunity to the other party. Prior notice of the opportunity shall be as much time as is practicable in light of the circumstances giving rise the babysitting opportunity. 4. The parties may modify this Order by mutual agreement. In the absence of mutual consent, the terms of this Order shall control. BY THE Edgar cc: Michael A. Scherer, Esquire, counsel for Father Samuel Andes, Esquire, counsel for Mother J. Jh? Y ? Y er r r? u- o C b c-+ RECEIVED APR 06 2005 WILLIAM A. LAYTON, : IN THE COURT OF COMMON PLEAS OF 1fl Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. :CIVIL ACTION -LAW CAROL B. LAYTON, : NO. 2004-4217 CIVIL TERM Defendant IN CUSTODY PRIOR JUDGE: EDGAR B. BAYLEY, J. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Rachel G. Layton February 18, 2001 Mother 2. A Conciliation Conference was held April 5, 2005 with the following individuals in attendance: The Father, William A. Layton, with his counsel, Michael A. Scherer, Esquire, and the Mother, Carol B. Layton, with her counsel, Samuel Andes, Esquire. 1 The Honorable Edgar B. Bayley previously entered Orders of Court dated October 21, 2004 and February 1, 2005 providing for shared legal custody, with Mother having primary physical custody and Father having alternating weekends Thursday to Monday and Tuesday and Thursday evenings. 4. Father's position on custody is as follows: Father seeks shared legal and shared physical custody. He wishes to maintain a close relationship with the child which he believes can only occur with shared physical custody. The parties both live in Carlisle. Father has cooperated with co-parenting counseling and he believes that the parties are getting along better. 5. Mother's position on custody is as follows: Mother is satisfied with the current custody order. Mother was the primary caregiver when the parties lived together. She is concerned about Father's negative comments to the child. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing and continuing the current Orders with the addition of a babysitting clause. It is expected that the Hearing will require one day. 4-S--vs- Date acq ine M. Verney, Esquire Custody Conciliator WILLIAM A. LAYTON, Plaintiff vs. CAROL B. LAYTON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4217 CIVIL TERM IN CUSTODY ^-? ORDER OF COURT AND NOW this 17 day of 2005, upon the request of Mr. Andes, the hearing which had been scheduled in this matter for 18 July 2005 is hereby continued and will be held before the undersigned, in Court Room No. 2 of the Cumberland County Courthouse in Carlisle, Pennsylvania, commencing at 9:00 a.m. on August 4, 2005. J. Distribution: Michael A. Scherer, Esquire (Attorney for Plaintiff) 19 West South Street, Carlisle, PA 17013 Samuel L. Andes, Esquire (Attorney for Defendant) 525 North 12th Street, Lemoyne, PA 17043 ?- ?_ ..? ;?- != --? .-?,.: ? . ? __ :; ? ?u_ ?-? ; -, ?> ;y ?? WILLIAM A. LAYTON, PLAINTIFF V. CAROL B. LAYTON, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-4217 CIVIL TERM ORDER OF COUR AND NOW, this day of August, 2005, following a hearing on the merits, IT IS ORDERED: (1) All prior custody orders are vacated and replaced with this order. (2) William A. Layton and Carol B. Layton shall have shared legal custody of their daughter Rachel G. Layton, born February 18, 2001. (3) The mother shall have primary physical custody of Rachel. (4) The father shall have temporary physical custody of Rachel during fourteen day cycles as follows: (a) Starting on the first Thursday at 3:00 p.m. until Monday at the beginning of daycare. (b) The first Tuesday from 3:00 p.m. until 7:30 p.m. (c) The second Thursday from 3:00 p.m. until the beginning of daycare the next day. (d) The second Tuesday from 3:00 p.m. until the beginning of daycare on Wednesday. (5) At Thanksgiving, the father shall have Rachel from Wednesday at 4:00 p.m. to Thursday at 5:00 p.m. The mother shall have her from Thursday at 5:00 p.m. to Friday at 5:00 p.m. The father shall have her from Friday at 5:00 p.m. to Monday at 5:00 p.m. (6) At Christmas, Block A shall be from December 23 at 5:00 p.m. to Christmas Day at 12:00 noon. Block B shall be from Christmas Day at 12:00 noon to December 27 at 6:00 a.m. Mother shall have Block A in even numbered years and Block B in odd numbered years. The father shall have Block A in odd numbered years and Block B in even numbered years. (7) Each parent shall have Rachel for two non-consecutive weeks (seven consecutive days) in the summer provided they give the other parent thirty days notice. The parents' alternating weekends shall be included in their even day periods. (8) The parents shall attend at least two more co-parenting sessions, these sessions to deal only with their parenting of Rachel under the circumstances of their separation. Achael Scherer, Esquire For William A. Layton Nk Veamuel Andes, Esquire For Carol B. Layton :sal p g-Z-CZ5 J. 11/09/2005 07:36 7172495755 CAROL B. LAYTON V. OBS PAGE 02 : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA NO. 2004-4217 CIVIL, TERM WILLIAM A. LAYTON TO THE PROTHONOTARY: CIVIL ACTION-LAW IN CUSTODY PRAECIM TO RUJIDIM APPEARANCE Kindly,Vithdraw my appearance in the above-captioned mutter. Respett£ully submitted, Micbael dzerer, Esquire PR gaM TO ENTER APPFARANCE Kindly enter my appearance on behalf of the Defendant in the abovo-captioned matter. Respectfully submitted, .r1*aW & KVTUL4as, L.,LP DATE L LIZ. Kara W. Haggerty uit ID #86914 36 South Hanover Street Carlisle, Pennsylvania 17013 CERTIFICATE OF SERVICE AND NOW, I, Kara W. Haggerty, Esquire, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing Praecipe to Withdraw/Enter Appearance by First Class U.S. Mail at the following: Sarre Andes, Esquire 525 N.12' Street P.O. Box 168 Lemoyne, PA 17043 Michael Scherer, Esquire 17 West South Street Carlisle, PA 17013 I D DS Date 1?-?? Kara W. Haggerty, e M %' Y'":. y ?? jS.L .. "? 1 I \ ?-?. ? G? ??? n `? --n. l1?} Lt{ VY ? ?? ?) Ca • 9 FOR THE PLAINTIFF 1. William A. Layton FOR THE DEFENDANT 1. Carol B. Layton INDEX TO WITNESSES DIRECT CROSS REDIRECT 3 29 38 40 41 66 80 81 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 August 4, 2005, 9:02 a.m. Carlisle, Pennsylvania (Whe reupon, the following proceedings were held:) THE COURT: First witness. MR. SCHERER: William Layton. Whereupon, WILLIAM A. LAYTON, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. SCHERER : Q Can you tell us your name, please. A I'm William Layton. Q And your address? A 7 As cot Lane, Carlisle, PA. Q How long have you lived there? A Four years. Q Is t hat the former marital residence? A Yes, it is. Q How old are you? A I'm 37. Q And what is your marital status? A I'm still married at the present time. Q Are you married to Carol Layton? A That 's correct. 3 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Does anyone else reside in your home with you? A No. Q Do you have any other children? A No, just Rachel. Q And does Carol have any other children besides Rachel? A No. Q When was Rachel born? A February 18th, 2001. Q And where does Rachel go to day care? A Little Angels on the corner of Lutheran -- Louther and Bedford. Q Here in Carlisle? A Yeah, right here in Carlisle. Q Tell us a little bit about your employment. How are you employed? A I work for West Pennsboro Township. I'm a road crew worker. Q And how long have you Pennsboro Township? A It's coming up almost Q And what is your sche week do you work? A I work Monday through worked for West on two years. Jule? What days of the Friday, 6:00 to 2:30 4 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 through May to September, and then September to May I work 6:30 to 3:00. Q So you have, let's call ahem, winter hours and summer hours. A Right. Q And your summer hours, which are in effect now, you begin at 6:00 in the morning? A Correct. Q And then in the wintertime, you begin at 6:30? A Right. Q And when does the switch occur, what month? A It's more like daylight :savings time when we switch over there, you know. Q So what is that? Is that October and -- A Yeah. We switch over in May when it starts getting a little bit light out, and then we switch over in it's, like, September, I think, we switch back to -- Q To your winter hours? A To winter hours. Q When were you married to Carol? A October 7th, 1995. Q And when were you separated from Carol? A I think it was August 12th of last year. Q 2004? 5 1 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 Correct. Q And you stayed in the marital residence, is that right? A That's correct. Q And then Carol moved to a townhouse here in Carlisle? A Right, on the other side of town. Q And where are you from originally? A I'm originally from Everett, PA. Q What county is that? A That's Bedford County. Q Does your family still make their home there A Yes, they do. Q And what about Carol, where is her family from? A From Pine Grove. Q And what county is that, do you know? That' up 81? A Yeah, it's only, like, an hour north of 81. Q And they still make their home there, is tha right? A Correct. Q Can you tell the Court the custody schedule that you have right now? A Yeah. I have Tuesday nights from, like, 3:0 6 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to 7:30, and then I have Thursday nights from 3:00 to 7:30, and the following Tuesday from 3:00 to 7:30, and then Thursday from 3:00 to Monday morning. Q So you have alternating weekends -- A Right. Q -- with Rachel, is that :right? A Correct. Q And your alternating weekends start Thursday at 4:30? A Correct. Q And they go until Monday morning? A Monday morning. Q Now, to begin your alternating weekends, you pick Rachel up where? A At day care. Q And about what time do you get her? A I pick her up anywhere from, like, quarter t 3:00 to 3:00. Q And then you keep her overnight Thursday night? A That's right. Q Friday night, Saturday night and Sunday night? A Correct. Q And then what do you do on Monday morning? 7 • • 1 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 I get Rachel up and get her ready to go over to Carol's. Q And do you actually take Rachel to Carol's? A Yes, I do. Q About what time do you drop her off? A I drop her off right around 6:30. Q A.m. obviously? A A.m., that is correct. Q Then you have every Tuesday, is that right? A Right. Q And you pick Rachel up from day care? A Right. Q And you keep her until about what time? A 7:30 I have her back. Q And you deliver her back to Carol's house? A That's correct, yes. Q And then approaching the weekend when you don't have phys ical custody you also have the Thursday -- A That's correct. Q -- is that right? A Yeah. Q And you have her from the time you get off from work until about 7:30? A That's correct. Q What is it that you are asking the Court to 8 1 do to change the order? 2 A I'm asking for, like, overnights on Tuesday 3 and Thursday nights. 4 Q I want to ask you a little bit about your -- 5 THE COURT: Every Tuesday and Thursday? 6 THE WITNESS: Correct. 7 BY MR. SCHERE R: 8 Q I want to ask you a little bit about Rachel. 9 Did you plan to have children when you were with Carol or 10 was she a sur prise? 11 A No, it was no a surprise. We were planning 12 to have Rache l. 13 Q And how did you feel about being a father 14 after Rachel' s birth? 15 A It's been wonderful. It's been great being 16 part of Rache l's life. I mean, I love her to death. 17 Q Can you explain your interaction with Rachel 18 when she was an infant? 19 A Yes. I was there from the day she was born. 20 I took Carol to the hospital and was there from day one. I 21 would -- 22 Q Did you take a little bit of time off from 23 work after he r birth? 24 A Yes, I did. I took off, I think it was, 25 three or four days off from work to help us get settled wit 9 1 Rachel. 2 Q Did you participate in Rachel's care? 3 A Yes. I would change diapers. I would get u 4 at night and feed her. I would mix all of the formula for 5 her and get things organized and everything. 6 Q And as Rachel then grew a little bit older, 7 did you stay involved in her daily care'? 8 A Yes, I did. 9 Q Do you have any examples of the things that 10 you did? 11 A I used to come home and we would go for bike 12 rides. We would play at the park, swing on her swing set. 13 Q During the time that you and Carol were stil 14 under the same roof, did Carol entrust Rachel to you for 15 periods of time? 16 A Yes, she did. 17 Q And for what lengths of time? 18 A It would be anywhere from, like, a whole 19 day -- like, when she would go, like, scrapbooking I would, 20 like, take care of Rachel the whole day. We would have a 21 fun day playing and, you know, maybe washing the truck. An 22 then we would cook supper together and have supper ready fo 23 mom when she come home. And then there was -- when she wen 24 away on her business trips, I was responsible for Rachel an 25 taking her to school, picking her up. 10 • 1 Q Did she have business trips that took her out 2 of town overn ight? 3 A Yes, she did, two or three days sometimes. 4 Q You mentioned that Carol liked to scrapbook. 5 Did she have other activities that she liked to do that was 6 sort of her activities? 7 A Yeah. She had the Pampered Chef parties she 8 likes to go to and the scrapbooking. She liked that. 9 Q Can you tell us a little bit about your 10 observations of Carol as a parent while you were together? 11 A She is a good mom, she really is. She loves 12 Rachel, and, you know, she does a nice job taking care of 13 Rachel. 14 Q Did you notice anything as Rachel started to 15 get older, li ke, into the terrible twos and the threes? 16 A Yes, I did. It became more stressful for 17 Carol. 18 Q Can you give us an example? 19 A Yeah. I would, like, come home some evening: 20 and it would be stressing Rachel out a cfood bit -- or 21 stressing Carol out, excuse me, stressing Carol out, you 22 know, even li ke smaller things, like giving her a bath. If 23 Rachel would, like, start fussing or, you know, for example, 24 she would be giving her a bath and she would say, you know, 25 I could just strangle you, you know, I'm very upset with 11 • 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you, you know. Carol even mentioned one time that she had hard time disciplining Rachel because she's afraid she wou hurt her. Q And how did you respond to what you saw? A I would always try to help. Q In what way? A Give her baths. I would rock her to sleep, do as much as I can to help, you know, in giving Carol, you know, breaks and helping out. Q So you've been separated for just about a year, is that right? A That's correct. Q And what was your thinking on custody at the time you separated? A At the time I separated it was like -- sometimes it was difficult. It was difficult because I never went through this before and she would sometimes be like -- sometimes, like she was, you know -- I remember the one time she went to Baltimore, and she, you know, called back and she said, well, maybe we could work things out. So, you know, I wasn't sure, you know, what to do because sometimes it was back and forth. Q Did there come a point in time then when you came to the conclusion that separation was not going to be temporary? 12 • 1 A That is correct. 2 Q And at what point in time did you then begin 3 to ask for shared physical custody? 4 A It was probably a couple months after she 5 had, you know, left that I could see that it probably wasn' 6 going to work out, you know, and I wanted, you know, to 7 spend more time with Rachel. 8 Q And as a result of that, you consulted with 9 me and -- 10 A Yes. 11 Q -- we went to a custody conciliation? 12 A That's correct. First I went to a lawyer 13 that really didn't deal in custody cases, which was Bill 14 Duncan, and I was sort of, like, just steered wrong. And I 15 knew that I didn't want, you know, the custody that I had a 16 the present time, that I wanted to be more involved in 17 Rachel's life because I always had been,, and that's when I 18 come to you for more help. 19 Q So is it fair to say that for a period of 20 time after you were separated you were focused on your 21 marriage, and at the point in time you realized that the 22 separation was going to be longer -- 23 A That's correct. 24 Q -- you focused a little bit more on the 25 custody of Rachel? 13 • 0 1 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 That's correct. Q And when we went to the conciliation in October, do you remember what concerns were expressed to you about your ability to have shared custody? A I was -- I couldn't get her to school on time and my side job mowing. Q How did you deal with the issue of getting Rachel to school or day care on time? A Could I have a drink of water? Q Sure. A My mouth is really dry. THE COURT: You can take some up. BY MR. SCHERER: Q How did you deal with the concern that you would be unable to get Rachel to day care? A A lady I knew from mowing her yard, Adice, which Carol knows really well. Q What is her full name? A Adice Resmer (phonetic). Q And where does she live? A She lives at 917 Forge Road. It's two blo from my house. Q You said Carol knew her as well. A Yes. Q What did you do? 14 0 1 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 I asked her if she would be willing to come over to the house and take Rachel to school. Q And is that, in fact, what happened? A Yes. Q Has Adice been helping out with getting Rachel to school? A Very much so. Adice is a really great help. Q And when does Adice help out with Rachel and school? A She helps out Friday mornings to take Rachel to school for me. Q Is that the only day she helps out? A Yes. Q And is she willing to help out more? A Yes, she is. Q What are her circumstances? How old of a person is she and what is her -- A She just retired. She's, I think, like, 67, and she's a widow. Q Does she live alone? A She lives alone, and she retired from the Bon-Ton about -- it was last year sometime, I think, before Thanksgiving or something she retired from the Bon-Ton. Q How much time does she spend with you outsid of the Friday morning help that she gives you? 15 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 from Adice, and she also wanted her flowers planted. So I said, hey, Rachel, do you want to help plant her flowers also? So we did plant flowers another night also which was very nice, you know. It teaches Rachel to really respect her -- to respect her elders. It's nice. I mean, I think Jane brought her out, like, a teddy bear, you know. Q The other concern that was expressed initially about shared custody was the fact that you had a second job -- A Right. Q -- is that right? A That's correct. Q And that is that you would mow lawns. A I did lawns on the side to help out. Q And how did you address the concern that the obligation to your second job would prevent you from having shared custody? A I quit mowing yards. I give up the yards. Rachel means more to me than any yard. Q Was it also suggested at that time that you and Carol participate in co-parenting counseling? A That's correct. Q And what was your response to that request? A I said I would go. 17 11 1 Q And what happened after that meeting in 2 October relati ve to the co-parenting counseling? 3 A There was nothing set up, and Carol 4 responded that she didn't think we needed to go to parent 5 counseling. 6 Q We had another conciliation then in January 7 where you rene wed your request for shared custody. 8 A That's correct. 9 Q And do you remember at that time what the 10 concerns were about you getting additional time with Rachel 11 A Yes. It was putting things into Rachel's 12 head. 13 Q Were you putting things into Rachel's head? 14 A That's not correct. 15 Q Was counseling also brought up at that 16 conciliation? 17 A Yes, it was, and she said about going to her 18 counselor. 19 Q For co-parenting counseling? 20 A Right, for co-parenting counseling. 21 Q And were you agreeable to it? 22 A I was very agreeable to .it. I said, yes, I 23 would. 24 Q And what happened after that conciliation 25 regarding co-p arenting counseling? 18 • 0 1 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 I waited and waited to hear from a call from either the co unselor or Carol about the counseling. That was over a mo nth. I think it was, like,, five to six weeks, and I didn't hear anything so I called the counselor myself. Q And what happened? A They wouldn't release any information on, like, any mee ting that was set up or anything. So then I called Carol, and then it was another two to three weeks until we got in. Q And have you actually been in co-parenting counseling? A Yes, I have. Q About how many sessions :nave you had since it was an issue? A I think we've had five, five or six. Q When did you start approximately, what month? A Yeah. THE COURT: I didn't hear that. THE WITNESS: She said six months ago. THE COURT: You started about six months ago, and you had f ive sessions, did you say, about? THE WITNESS: I would say we had five sessions, yeah. MR. SCHERER: Do you want to pull that microphone up to you a little bit closer, Bill. 19 1 THE COURT: Go ahead. 2 BY MR. SCHERER: 3 Q We had a third custody conciliation in April, 4 is that right? 5 A That's correct. 6 Q And, again, you expressed the desire to have 7 the shared custody? 8 A That's correct. 9 Q And what was the reason that you recall that 10 was expressed against you having shared custody? 11 A There wasn't really no reason given for, you 12 know, why I couldn't have, you know, moire time with Rachel. 13 Q Can you just tell us a little bit about what 14 you do with Rachel, how you interact with her, what 15 activities you engage in? 16 A Yeah. I pick her up from school usually, anc 17 we usually either go to the park, go swimming. We have a 18 lot of church activities we also go to, including softball 19 games which include -- when I first went to the softball 20 games, it was three or four kids would come around and play. 21 I would take Rachel and we would play frisbee, either 22 frisbee, softball or kickball. 23 I think the last time I went -- we've been 24 going a lot because the softball team's been playing a lot, 25 either like once a week, and now I have,, like, 10 or 12 kids 20 • r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 coming up to me. They cannot wait to see me pull in because we have such a good time. We also stop usually at the -- I bring my ice chest along, and me and Rachel would stop at, like, a local grocery store and get popsicles, and she cannot wait to give them out to the kids and her friends. She has a lot of real close friends through going to church. Q Do you practice with her with her developmental issues, like her ABC's? A Yes, I do. I practice on her chalkboard downstairs. We go over her ABC's and we have a little Leap Frog -- like a computer, where the other: night we were sitting down and she was, like, starting to, like, go over, like, her reading, you know, skills and stuff, just like -- it says, like, Winnie the Pooh, you know, and she pushes the word and it pronounces it for her. And then there's a lot of other activities we do. There's a little local farm that we ride our bikes down to. And we went down there the one night, and we petted the calves. There was, like, five or six calves, and she petted them. I know the farmer from previous trips down that, you know, I used to take her down, and it was really cute this night because we went down and we seen -- we petted the cows, and they were in milking. And then we went 21 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 around back, and the one cow had a bad eye. And she goes, what's wrong with that cow's eye? It must have got bumped, and it has a boo-boo. And I remember in that incident when we went to say our prayer before we went: to bed she prayed for that cow's eye, which was really cool. And another incident was we went down and seen the calves and the cows, and the farmer wasn't there. There's been a couple times we've talked to the farmer and everything, but we were coming back up and she goes, I think the farmer went to the store to get milk. That just tears you up, you know, you just -- just to see that, you know, joy from her and -- Q You enjoy those types of moments with her? A I enjoy those moments a lot. Q How does she behave in your company? A Very well. I have no problem with her behavior. Q Does she misbehave from time to time? A From time to time. Q And how do you deal with that? A First I sit down and tall, to her, and I explain the situation, you know, that it isn't good for her to fuss. And if she keeps fussing, I'll give her a time-out. And third if she, you know, keeps fussing and she don't want to listen, then it's, you know, I give her a 22 • r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 smack on the butt, and she'll sit on the chair for ten minutes. Q Did you get her a cat recently? A Yes, I got her a little kitty cat. Q Why did you do that? A What's that? Q Why did you do that? A Because it will teach her responsibility and to take care of others, you know. It's more important than just taking care of herself. It will teach her, you know, to get up, you know, to feed the cat and be responsible for her kitty. She loves that cat. It follows her around. We'll be playing in the backyard, you know, up by the swing set, and the cat's, like, just following her around and playing with her and having a good time. She loves that cat. Q Did you take a vacation with Rachel recently? A Yeah, I did. Q And who else was on vacation? A My sister and my mom went and Aunt April. Q Where does your sister live? A She lives in California. Q Which town? A San Diego, near San Diego. 23 • 1 Q Who all left from this area to go out to 2 visit your sister? 3 A Me, Rachel, my sister Betsy, and Anna Marie, 4 my mom -- 5 Q And what did you -- 6 A -- and Aunt April. That's it. 7 Q What did you do on vacation? 8 A We flew out there and then we got there on 9 Sunday night and -- 10 Q What month are we talking about? 11 A June. And then we -- Monday we went to Walt 12 Disneyland, and it was a great day. What we did was we went 13 in first and we seen goofy. She was so -- 14 THE COURT: I don't have to hear all that. 1 15 know what you do in Walt Disney World. Where else did you 16 go? Did you go to the zoo? 17 THE WITNESS: We didn't have time to go to 18 the zoo. We went to Sea World, and my sister dropped us off 19 at, I think it was, 9:30 at LegoLand, and me and Rachel 20 spent the whole day at LegoLand. It was a blast. 21 She had this favorite roller coaster, the 22 dinosaur roller coaster. We rode it four times and she -- I 23 remember this. She was in this little car. It reminds me 24 of her little Jeep that we play with at home, and she got 25 her little driver's license. And she goes, daddy, now I can 24 • 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 drive the car. I'm, like, no, you can't drive the real car, you know, and she did really --;she did fantastic. She had -- one more thing on, you know -- sorry. I was going to go back to Disneyland because I wanted to tell you how she thought about: the fireworks. She thought that was just amazing to see the fireworks and stuff and she said it's just so -- it was getting late at night. She said that was just exhausting for me, and her eyes lit up so much. But, you know, we had a great day at LegoLan also, and we went to Sea World. That was fun. She liked the dolphin show. And there was another dog and cat show and an animal show. She enjoyed that. I couldn't believe some of the things that the cats were doing on the stage. She goes, maybe I can teach Mamma Kitty to do them. I'm, like, good luck, you know. BY MR. SCHERER: Q So, just to change the subject a little bit, what's your outlook on Carol's involvement in Rachel's life? A I think she tries to do very good with Rachel, and she does good. Q Do you try to be cooperative with Carol as far as the custody schedule? A Yes, I do. Q Have there been things that have come up in 25 1 the last year where you have altered your plans to try to 2 accommodate her? 3 A There's been bumps in the road. 4 Q Was there a death in Carol's family this pas 5 year that required a change? 6 A Yeah, that's correct. She wanted to take 7 Rachel, I think, Thursday evening early, so that was fine. 8 Q Was there a time when there was a 9 grandparents' day at day care that -- 10 A Yeah, it got a little messed up. I wasn't 11 sure that it was grandparents' day there and it was -- I 12 think we had a conciliator meeting that day and I left -- 13 she stayed with Adice, and then I went back to pick her up. 14 Carol had said about to bring her to 15 grandparents' day and I did. I did take her over to day 16 care, but Rachel really didn't want me to leave so I just 17 sat there with Rachel and enjoyed grandparents' day with 18 everybody. 19 Q Why do you think it's in Rachel's best 20 interest to have these Tuesday nights and the one Thursday 21 night turn into overnights? 22 A Because I think it's important to Rachel whe 23 she's making a lot of excuses why not to go home. Like, we 24 went to the policemen's fair this Thursday night -- last 25 Tuesday night, last Tuesday night, or this past Tuesday 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 night we went there, and she's making a lot of excuses on, like -- you know, she's, like, I want to go back and, you know, pet the cow. I want to stop and see Mamma Kitty. It upsets, you know, her to go into two different, you know -- I know how Rachel's day has been, you know, from picking her up from day care. Q The policemen's fair, that's at the neighborhood night out or something? A Yeah. It was over at Dickinson field. Q So you're saying that it was time to go home before you guys were really ready to end your -- A Yeah, that's correct. Arid that happens every time, you know, either if we're out at a softball game or if we're just having fun, like, at the park or if we're swimming in the pool in the back, you know. It upsets her to a point, you know, she's saying sometimes, you know, she don't want to go home. And I'm, like, yes, Rachel, you have to go home, you know. Q Well, then you were saying something about knowing what Rachel's day was like at day care. A Yes. Q Can you explain what you mean by that? A I know what kind of mood Rachel's in when I pick her up from day care, and, you know, if she's in a happy mood or a grumpy mood or what were -- you know, what 27 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time she's ate and what she's ate and, you know, how she's been the whole day. Q Do you typically communicate with the people at day care regarding the type of day she had? A Yeah, or they usually tell me, you know, or I'll talk to Miss Lisa, and she'll say, you know, Rachel was grumpy today or Rachel had a good day, Rachel helped pick up all the toys. And sometimes you get sheets that says that she was good or, you know, the special things they did. Q So then you know what type of day she had up until you pick her up? A Right. Q Then obviously you spend the time with her from the time you pick her up until 7:30? A Right. Q And are you saying that there's a situation that makes it better for her just to stay with you rather than go to Carol's? A It would make it easier for Rachel. Q What happens when you start heading for Carol's with Rachel? A Sometimes she'll say, you know, why can't I stay with you, daddy? And I'm, like, well, you know, I have to take you back to mommy's house. You're going to stay at mommy's house tonight. And, you know, she'll fuss and, like 28 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I said, she'll make excuses. Like, you know, we would. already be going an( she had already given Mamma Kitty a hug, or she, you know, already had done something, and she'll make, you know, like, she wants to go back and enjoy the evening. Q How would it be different if she stayed at your house Tuesday nights and Thursday nights? A It would be, you know, you wouldn't have to pack her up and take her back. I mean, I would give her a bath, you know. I would make sure she's in bed by 8:30 to 9:00 and, you know, read her a bedtime story and say her prayers. And I usually lay down with her for 15 minutes until she falls asleep, and then she's off sleeping. MR. SCHERER: Thank you. I don't have any other questions. THE COURT: Cross-examine. CROSS EXAMINATION BY MR. ANDES: Q work? A Q in the morning? A Q How far is it from your home to where you Okay. It's, I think, like, 5 mile. About how long does it take you to get there Ten minutes. So if you have to be at work at 6:00 a.m. 29 1 during the summer, you must leave around, what, 5:45? 2 A Right, around that time. 3 Q Now, on those mornings on Fridays when you 4 have Rachel with you, Adice comes to your house? 5 A That's right. 6 Q What time does she usually arrive? 7 A She usually gets there right around, I would 8 say, like, 5 :30, right around, give or take a couple 9 minutes. 10 Q And what time do you get Rachel up? 11 A I usually get -- Rachel usually gets up 12 herself. 13 Q What time? 14 A And that's usually at like -- she usually 15 gets up anyw here from 5:30 to quarter to 6:00. We usually 16 always eat, you know. 17 Q So if she gets up between 5:30 and quarter o 18 6:00, you're there with her for maybe 15 minutes before you 19 leave for wo rk? 20 A That's correct. 21 Q And Adice comes? 22 A Right. 23 Q And then is Adice the one who gets her 24 dressed and ready for day care and everything else? 25 A We have her clothes laid out the night 30 1 before. 2 Q But Adice gets her dressed, makes sure she's 3 ready to go to day care. What time does she take her to da 4 care? 5 A She takes her right around, like, 7:30 to 6 8:00. 7 Q So in the morning you see Rachel for maybe 1 8 minutes, and Adice has her then until whenever she goes to 9 child care, is that correct? 10 A Um-hum. 11 Q But on Monday mornings after your weekend 12 Adice doesn' t come? 13 A No. 14 Q Does Rachel get up at 5:30 to quarter of 15 6:00? 16 A Yes, she does. 17 Q And what time do you leave for work then? 18 A I usually take her over -- my work is really 19 flexible. I take her over to Carol's at 6:30. 20 Q At 6:30? 21 A That's correct. 22 Q When we had this conference back in January 23 and we worked this all out, didn't you say you were going tt 24 have Adice come Monday mornings so that Rachel wouldn't have 25 to get up too early and wouldn't be rushed? In fact, I 31 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think the order says that she's to be returned to Carol's at 7:00 a.m. already fed and ready to go, is that right? A That's correct. Q Why is it that you don't have Adice come Monday morning? A There is no need for it. I could also take Rachel right to day care at 6:30 also. It was because Carol had said about she had wanted to see Rachel before she went to school. Q Okay. But you told us in January -- in fact, my recollection is you promised in January that Adice would be there Monday morning and Adice would take Rachel, but you're not doing that, is that right? A That is not correct. I did not say that. Q Oh, you didn't. A I did not say that Adice would take Rachel over on Monday mornings. Q Now, you testified about these things that you did to help care for Rachel when she was young and you and Carol were together. In fact, this lawn service you had took a lot of your time, didn't it? A It took about 15 hours a week. Q Well, I'm looking at your tax return for 2003, which was the year before you separated, and you had gross receipts from that business of over $5,000.00, is that 32 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 right? A That's correct. Q And that was based on 15 hours a week? A Yeah. Q So three hours each day beyond your regular job? A Um-hum. I would usually mow, like, anywhere from, like, Wednesday to Friday nights and do a little bit of -- I would do a little bit of yards on, like, Saturday, also Saturday mornings I would do a little bit. Q The counselor, the co-parenting counselor that you and Carol went to see, what was his or her name? A Stephanie. Q Stephanie what? A I think it was Stephanie -- I don't know her last name. She never said. Q Are you still going to co-parenting counseling sessions? A Yes, we are. Q When is the next one scheduled? A We didn't set up one. Me and Carol decided to call after today. Q In your impression, have they been successful? Have they reduced tensions or helped you two work together any better? 33 • 0 1 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 They've helped in certain things. Q Now, you're angry at Carol for breaking up this marriage, aren't you? A That's not correct. Q You're not angry? A It's -- I mean, she -- that was her decision. Q Have you told her that you're angry that she broke up the marriage? A I think back in -- back when we were breaking up. Q Recently, in the last year, have you told that? A Of c Q Have marriage broke up? A It's Q Have A Yes, Q Have family? Durse. you told her it's her fault that the both of our faults. you told Carol that it's her fault? I probably have. you told Carol that she broke up the A Yes, I have. Q Have you called Carol selfish for doing that? A Yes, I have. Q Have you told Carol that you don't think she cares about Rachel? 34 • • 1 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 I did not. Q You don't think -- A I know she cares about Rachel. Q But have you ever told Carol that you don't think she does care about Rachel? A No. Q Have you ever called her,. Carol, unstable? A I've called her unstable at certain times. Q Have you ever called her crazy? A No. Q Have you ever called her a liar? A Yes, I have. Q Have you ever said to Carol that you were sorry you ever married her? A No. Q Have you ever said she suffers from a mental disorder? A Yes, I have. Q Have you said these things in the presence of Rachel? A No. Q Never? A I try not to. There is certain times, I mean -- Go ahead. I'm sorry. I didn't mean to 35 • 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 interrupt you. A No, I mean -- Q Are you telling us you've never said those things to Carol within Rachel's presence so that Rachel could hear them? A Rachel's always been away from us when we've tried to talk. Q Well, how far away? A Like, from here to the door that we've been trying to talk. Q In fact, a lot of times these things that you've said to Carol you've said when you returned Rachel from the custody, is that right? A No. Q It's not right. When do you say these things to Carol then? A I mean, she's -- one time was at the counselor's meeting that I called her a liar in which there were certain times that I felt like she lied to me. Q Have you ever said negative things about Carol to Rachel? A No, I haven't. Q To anyone else in Rachel"s presence? A No, I haven't. Q Have you ever talked to Rachel about spending 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 more time with you and the court proceedings and the cu order? A Rachel talks to me about wanting to stay more. Q Have you said to Rachel that you want her to spend more tim e with you ? A No. Q Have you said to Rachel that you want to live like a family again? A Rachel's said that before to me. Q Have you ever said it to her? A No. Q So you never planted that idea in her mind? A No. Q Have you ever told her that Carol is a bad mommy? A Nope. Q Have you ever told her that Carol is naughty? A Nope. Q When you drop Rachel off, do you get emotional sometimes? A It's hard sometimes. Q Do you cry in front of Rachel? A Try not to. Q But do you? 37 • • 1 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 Occasionally I do sometimes. Q And sometimes after you've dropped Rachel off and Rachel's in the house, do you sit in the car outside for 15 or 20 minutes? A No, I don't. Q You don't? A No, I don't. Q When you return Rachel sometimes you bring the pet cat to say good-bye? A She asked to bring it. Q How often do you do that? A Maybe twice a month. She asked to bring her cat along with me. MR. ANDES: That's all the questions I have. THE COURT: Any redirect? REDIRECT EXAMINATION BY MR. SCHERER: Q The Monday returns to Carol's house -- A Yes. Q -- were you in favor of that? A Yes, I was. Q You were in favor of taking Rachel to Carol's house after your long weekend? A Explain that to me, Mike. Q Well, we had a conciliation -- 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ANDES: I'm going to object before he asks. I'm just going to ask that he not ask a leading question or not put words in the man's mouth because he's answered the question once already. THE COURT: Reword it in a direct question. MR. ANDES: I guess that"s a preemptory. THE COURT: If you want him to answer it, otherwise move on. BY MR. SCHERER: Q Presently you take Rachel to Carol's house Monday after your long weekend -- A That's correct. Q -- is that right? How did that come about? A Carol wanted to see Rachel before she went school. Q What do you recall about agreeing to that? A I didn't. I just agreed taking Rachel over there, you know, by 7:00. Q You've been confronted with statements that you allegedly made to Carol about the breakup of your marriage, and you have acknowledged that you've made certain statements. When would one of those statements have been made? A Sometimes, like, when she was -- Q You've been separated for about a year now? 39 • 1 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 That's correct. Q All right. Can you put it in the time frame of the year? A I'm going to say probably the first two or three months of our separation, you know, like, the first four or five months of our separation. What's in the past is in the past. MR. SCHERER: That's all I have. MR. ANDES: I have some recross. THE COURT: Go ahead. RECROSS EXAMINATION BY MR. ANDES: Q About the time that you and Carol separated, you had an attorney representing you, is that correct? A That's correct. Q William Duncan? A Right. Q And he made a proposal for custody on your behalf, is that correct? A That's correct. MR. SCHERER: Objection, beyond the scope of redirect, Your Honor. THE COURT: Sustained. Is there a divorce action filed yet? MR. ANDES: Yes, there is. 40 1 THE COURT: Anything else? 2 MR. ANDES: No. I have no further questions 3 of this witnes s. 4 THE COURT: Sir, you may step down. We will 5 hear from the mother. 6 MR. ANDES: I call Carol Layton to the stand. 7 THE COURT: You know what, I'm a coffee 8 drinker. I am going to take a short break. Let's come back 9 at five after. 10 (Whereupon, a brief recess was taken.) 11 THE COURT: Come on up. 12 Whereupon, 13 CAROL B. LAYTON, 14 having been duly sworn, testified as follows: 15 DIRECT EXAMINATION 16 BY MR. ANDES: 17 Q You can pull the microphone up so we can hear 18 you. You don' t have to scrunch down. You can pull the 19 microphone up. 20 A Okay. 21 Q Would you state your name and your address 22 for the record . 23 A My name is Carol Layton, address 63 Partridge 24 Circle in Carl isle. 25 Q And you are married to William Layton who 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just testifie A Q A Q A Q A Q How old are you? A I'm 35. Q Do you work? A Yes. Q What do you do? A I work full-time for Carlisle Syntec. I'm a technical coordinator in their office. Q And where is their office? A Ritner Highway. Q How far is that from where you live? A It takes me about 15 minutes to get to work. Q And what are your work hours? A 8:00 to 5:00. Q Which days of the week? A Monday through Friday. Q Before you separated, both you and your husband worked. Was Rachel in some type of day care at that d? That's correct. You two were married in 1995? Correct. And you separated about a year ago? Yes. And you have one daughter Rachel? Yes. 42 ! • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time? A Yes. Q Where? A The current day care, Little Angels. Q So she's been in the same day care throughout this? A Yes. Q And prior to your husband's current job, where did he work? A He worked -- he worked at Sawyer. It was a crystal manufacturing plant. Q During the time before you separated, who typically got Rachel up in the morning and got her ready and took her to child care? A I did. Q And why was that? Did he leave before you or after you or what? A Yes, he left before me. Q What time typically did he leave for work then while you were together? A Probably quarter to 6:00, 5:45 a.m. Q And who typically picked Rachel up from day care in the afternoons? A I did. Q Now, what time did he get off work when you 43 1 were living tog ether? 2 A 3:00 or 3:30. 3 Q And you would not pick her up until after 4 5:00? 5 A Correct. 6 Q What did he do during that time instead of 7 get Rachel? 8 A He had a mowing business pretty much 9 full-time after work. 10 Q Did that last all year-round or just during 11 the summer? 12 A Just during the summer, mowing lawns. 13 Q And during the winter, did you still pick 14 Rachel up from child care? 15 A I did. However, Bill also picked her up mor 16 because he did not have the mowing to do after work. 17 Q During the time that you lived together, who 18 typically prepa red the meals? 19 A I did. 20 Q And who typically got Rachel ready for bed, 21 gave her a bath , got her dressed, that sort of thing? 22 A The majority I did, although Bill did give 23 her a bath. He did help with dinner, you know. He did 24 share the respo nsibilities. 25 Q Did he do that in the summertime when he was 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L1 LI mowing? A No. Q And why was that? A He would mow when he would get off work and not typically come home until after dinner. I would have dinner prepared. Rachel and I would have eaten. Rachel usually had her bath by the time he got home, not every night but a couple nights during the week. Q At the time you separated Rachel went with you, is that correct? A Correct. Q Was that by agreement between you and Bill? A Yes. Q And at that time what was he asking for? What type of custodial arrangement did he want when you first separated? A That I was to have primary physical custody of Rachel. Q And what time did he ask that he have Rachel with him? A Every other weekend and a couple evenings during the week. Q And it continued that way until you've been separated for sometime? A Correct. 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And what happened? Did he file a custody action? Did he change attorneys? Did he move? Was there something that happened that you know he changed what he wanted? A Bill originally had consulted a different attorney. In his meetings with that attorney, that's where they drew up the physical custody agreement to me, and that's where this schedule that's currently in place has come from. There have been some minor additions to it. However, that was the agreement that he made with his first attorney. Q Did you agree to move out of the house in part because of that agreement? A Yes. Q Let's talk about where you live, your physical situation. What is it, a house, an apartment, a mobile home, what? A No. I currently rent a townhouse. Q And describe it to the Court. How many bedrooms does it have? What other rooms does it have? A It's a townhouse in a really nice townhouse community. It has three bedrooms. It has a full bath upstairs and a half bath downstairs. It has a full basement. It has a deck outside off to the side, very -- you know, a kitchen, dining room, living room, very 46 s • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 spacious. Q Who lives there other than you and Rachel? A No one. Q We had -- Bill had testified about where your parents live. What are your parents' names? A Bill and Judy Wylgus. Q W-y-1-g-u-s? A Correct. Q And where do they live? A They currently live in Pine Grove, Pennsylvania. Q About how far is that from your house? A That's about an hour and ten minutes up no of Carlisle. Q Do they see Rachel with any regular or frequency? A Yes, now they do. Q How often? A Pretty much every other weekend. When I ha her, we usually see them at some point. Q Do they come to your home or did you go up there or both? A Both. Q Now, you said now recently. Prior to your separation, were your parents welcome at your house in 47 • 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Carlisle? A No. Q Why was that? A Due to the issues between Bill and my parents they were not welcome, and, in fact, because of that, because Bill made so many issues between them, he would not allow Rachel and I to go to their house and visit them. Q Did he actually tell you that you were not allowed to take Rachel to your parents' home? A He actually said because your parents do not like me and Rachel is a product of me then they do not like Rachel as well. Q How did that make you feel? A Terrible. Q Were there times that you saw your parents anyway when they came down or you went to see them? A Yes. Q And how did Bill react to those incidents or those occasions? A Bill was very angry. There were a few instances where I met my mom at day care and we saw Rachel. We were not allowed to go up to my parents for Christmas. My parents had gifts for Rachel. I had my mom come down one afternoon and spend it with Rachel, open her presents. When Bill came home, he was very very angry, very upset. 48 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did your parents ever do anything to Bill that you are aware of that would have caused that kind of feeling? A No. Q Did you get along with Bill's parents? A Yes. Q Did you try to get along with them? A Yes. Q Were they welcome in your house? A Yes. Q Did you go visit them? A Yes. Q With Rachel? A Yes. Q Did you make an effort to keep a good relationship between Rachel and his parents? A Yes. Q Bill made some reference about you taking business trips. Are you required to travel as part of your job? A Not anymore. I recently have gotten a new position with the company that does not require me to travel. The only travel that I would be doing is once ev two years I have a technical conference which is just one overnight. 49 • 1 Q While you and Bill were married, did you 2 travel more frequently on business? 3 A Yes. 4 Q And you left Rachel with him? 5 A Yes. 6 Q And you were satisfied he could care for her? 7 A That's correct. 8 Q Tell us now your schedule. What time -- 9 typically wh en Rachel is with you, what time do you get up 10 and what tim e does Rachel get up in the morning? 11 A I wake up at 5:30 in the morning, take a 12 shower, get myself ready, get Rachel's clothes ready. 13 Rachel does not wake up until 7:00. Sometimes it's a little 14 bit earlier, maybe quarter of 7:00, but she wakes up and I 15 get her read y, get her breakfast, and we leave to go to 16 school about 7:30. 17 Q And you take her then to the child care? 18 A That's correct. 19 Q And you go to work? 20 A Um-hum. 21 Q And then at the end of the day what time 22 typically -- if you have Rachel for the evening, what time 23 do you pick her up? 24 A 5:15. 25 Q And then what do you do? 50 • 0 1 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 We either go right home, have dinner, maybe we'll go out to dinner. If we have any shopping to do, maybe we'll go from day care to the store. Q What time is her bedtime? A 9:00 to 9:30. Q Now, on the evenings when you have her, obviously you feed her dinner, you get her ready for bed. What about the evenings that Bill has her and brings her home, do you still give her a bath and get her ready for bed and those things? A That's correct. He brings her at 7:30. We play or we go for a walk or maybe -- there's a park in my development. Sometimes we'll walk down to the park. And then about 8:30 we go up and take a bath or take a shower, get her ready for bed. Q You read her books and that sort of thing? A Yes. Q On the evenings when she's with you then on the weekends, what other sorts of things do you and Rachel typically do? A Rachel likes to be outside, so we go to the park. We go for walks. We travel. We go on little day trips. We went to the Crayola Factory. We've gone to Lake Tobias to see the animals. We've taken a weekend trip to my sister's 51 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 house, which would be Rachel's aunt, and we go down there to Virginia to stay for the weekend. We'll go up and spend the weekend in Pine Grove with my parents. Q Does Rachel have friends or playmates in your neighborhood? A Not directly in my neighborhood, no. Q Nearby? A Yes. Q Do you make arrangements for her to play with' children her age? A Yes. Q In the neighborhood or through friends of yours or how? A Through friends. We have what we like to call play dates, and we make those maybe twice a month. Q What days of the week are those? A They vary. Usually Wednesday nights because that's when I have Rachel. Q And then where do you go? Do you go to someone's house and these kids get together? A It varies. Sometimes we go to their house. Sometimes they come to our house or sometimes we go out to dinner. Q And who are these -- how many people are we talking about, one other child or a couple other children 52 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what? A No. There's three, four other children. Q And the mothers come along? A Yes. Q Do the fathers? A Not typically, no. Q But sometimes? A Sometimes. Q Who are the girls -- the other kids in this play group? What are their names? A The one is Mackenzie, and she's a friend of -- I work with her mother. The other child's name is Samuel, and he goes to school with Rachel. Q That's a great name. A The other child is Cole, and he also goes to Rachel's day care. There's Rachel's teacher at day care has three children of her own. Q And is she and her children -- some of her children included in this group? A Right. Q What is her name? A Her name is Lisa. The children's names are Zac, Shelby and Nicholas. Q Is Rachel happy at the day care? Does she seem -- 53 • • 1 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 Extremely. Q Does the day care do anything other than just watch her? Are there any educational functions there? A They do -- yeah, they do all kinds of things. They have a daily schedule. During the summer they have -- every Monday and Friday they have what they call sprinkler day, so you bring your bathing suits and they go out in the play yard. Tuesday is park day, so they take the kids and they walk down to the close park and see the ducks. Wednesdays is ice cream day, so they bring in ice cream for the kids. Thursdays is what they call show and share day, so the kids can bring anything they want. in and share with the kids. Q Does Rachel do that? A Oh, yeah. Q Does she enjoy it? A Oh, every day. Q Are there -- during the non-summer months, are there more educational things? Are they learning the alphabet, that sort of thing? A Yes. Q Are the parents encouraged to participate in that in any way? A Yes. 54 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q How? A We're given schedules of things that they do, things that they're working on, letters that they're working on and encouraged to, you know, continue that work at home. Q Have you shared those things with Bill? A Yes. Q And do you do them with Rachel? A I do. Q Do you know whether Bill does? A Of course I'm not there for sure, but I would assume that he does. THE COURT: Will she go to kindergarten at the end of next summer? THE WITNESS: That's correct. MR. ANDES: A year from now? THE WITNESS: Um-hum, 2006. THE COURT: Go ahead. BY MR. ANDES: Q Bill said that there were times you were stressed out when the two of you were together in your care of Rachel, and he said that on one occasion he heard you say to Rachel I could just strangle you, things like that. Is that true? A No, absolutely not. 55 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Were there times that you were stressed out while you and Bill were living together? A Yes, of course there were times when I was stressed out, not only being a new mom, we had a new house. A kid at two years old is stressful. I worked full-time. I came home, and most of the time Bill wasn't there. I made dinner, was with Rachel, didn't have, you know, Bill to sit down and have dinner with us. Q Did you ever take that out on Rachel? A No. Q Did you ever have trouble disciplining her or controlling her? A No. Discipline or -- my belief is that, you know, you don't control a two to four year old. Q If she does something that you don't think is right, how do you discipline her? A Currently we have a time -- it's a time-out. She goes and sits over on the stairs away from everything, doesn't -- I don't send her to her room because of course that would be like a big play area. Q Do you have to do that very often? A Not really, no. Q Bill testified about the co-parenting counseling. His testimony, I think, was that the two of you went to your counselor, is that right? 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 • A That's not correct. We didn't go to my counselor. We went to the same office where I currently go for counseling myself, but it was not my counselor. Q And who arranged the counseling? Who called and scheduled it and got it started? A I did. Q When did it start? A Six months ago. Q How many sessions? He said five. Is that about right? A That's about right. I thought it was six but, yeah. Q During those counseling sessions, how is his behavior toward you? A To some of -- it is supposed to be a co-parenting session. However, there was no co-parenting done. It was pretty much an open ring to continue the, you know, emotional and verbal abuse towards me. Q Well, what do you mean by that? What did he do to continue the emotional and verbal abuse? A Right in the session he would say that I'm a liar. He said that I lie more than I tell the truth. I'm selfish. I'm crazy. I have a mental disorder. I don't know how to cake care of Rachel, right in the session. I mean, that's stuff that was going on under the house roof, 57 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and that's what these co-parenting sessions were. He just continued that over and over. Q You say these were going on under the house roof. You mean while you two were together? A Correct. Q Did he say those sorts of things to you before you separated in Rachel's presence? A Yes. Q Frequently or rarely? A Frequently. Q What do you mean by that, once a day, once a month, what? A Three times a week. Q Since you separated, have there been occasions where he has said things like that to you? A Yes. Q Has he said some of those things in Rachel's presence? A Most of those things have been said in Rachel's presence. Q Well, now, I asked him some specific questions about some statements. Has he ever said to you Rachel's presence that you brought -- MR. SCHERER: Objection, leading. THE COURT: It is leading. 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. ANDES: Q Tell us -- I'll rephrase the question then. Tell us some of the things that he has said to you in Rachel's presence within the last several months, let's say the last four months. A He said that I broke up the family. I broke up the marriage. I'm crazy. I'm selfish. I only think about myself. I don't think about Rachel. I don't know -- I don't realize what I'm doing to Rachel. I'm harming her by splitting the family apart. Q Has he said these things in Rachel's presence? A Yes. Q Where? A When he comes and drops her off. Q Where is she? He mentioned as far away as the door. He didn't indicate which door. A No, she's never been that far away. There's been times he's been holding her. If he's not holding her, she's right there between the two of us. Q How do you respond to that when he says these things to you in the presence of Rachel'? A I don't keep it up. I try and put a stop to it, look, don't talk like this in front of Rachel. She's hearing and taking in everything that you say. 59 1 Q How does he react to that? Does he stop? 2 A Not always, no. 3 Q Has Rachel said things to you about what Bil 4 has said to her? 5 A Yes. 6 Q Can you give the Court some examples of that 7 MR. SCHERER: Objection as to hearsay with 8 what a four year old said, Your Honor. 9 THE COURT: Overruled. You may tell me. Go 10 ahead. 11 THE WITNESS: Daddy says you're a bad mommy. 12 Daddy says you're naughty. Me-me and pap-pap say you're a 13 bad mommy. 14 BY MR. ANDES: 15 Q Who are me-me and pap-pap? 16 A Rachel's other grandparents. 17 Q Bill's parents? 18 A Bill's parents. 19 Q What else has she said? 20 A You know, why aren't we a family anymore? 21 Daddy wants you to move home. Daddy wants you to move home 22 because he doesn't have enough money. Daddy has money in 23 his drawer that other people give him. And she not only 24 says this to me, Sam, she has said it to my parents just, 25 you know, out of the blue on the phone, just my daddy says 60 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 my mommy's a bad mommy. Q How does Bill behave when he drops Rachel of at your home in the evening? A He prolongs the good-byes, and it's not even so much a lot of the verbal communication. It's a lot of the non-verbal. I mean, he looks sad. If he doesn't cry, he has that sad look about him. He prolongs the hugging, the, you know, good-byes. You know, if Rachel says I want to go with you, daddy, he'll say, I know you do, but you have to go with mommy, you know. This is what mommy wants. He shouldn't do that to a four year old. She picks up on all that stuff, and it gets her upset. Q Is that something you tried to discuss at th co-parenting counseling sessions? A Tried numerous times. Q And what was his reaction to that? A I don't do that. Q He denied it? A Right. Q And does he do that stuff now? I mean, are we talking about a year ago or within t:?e last several months? A It was -- since we separated a year ago, I would say the first six months it was more frequent. 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • 0 Q But it still goes on now, just less frequently? A Less frequently. It still happens but not every time. Q Does he cry sometimes when he returns Rachel? A Sometimes. That happened more in the first -- in the beginning, I would say the first six months. Q Have you been able to observe what effect that has on Rachel? A Only because she comes home and tells me things. She's, you know, a wonderful kid but she says things, you know, I want -- I want to be a family. I don't want to go back and forth anymore. My friends don't go back and forth. Why do I go back and forth? Q Have you heard Bill discuss those things with her in your presence, make statements similar to that? A No. Q And, again, the conduct that we're talking about is conduct that although it's slowed down it still continues? A Um-hum, correct. Q Bill bought a pet kitten for Rachel. A Um-hum. Q During the time that you two were together, did you want to get a pet for Rachel? 62 • • 1 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 We talked about it. Q What was Bill's reaction? A No. Q Did he ever give a reason why? A Bill's a neat freak and probably didn't want the mess and the hair in the house. Q Now, you testified about some flexibility. A Um-hum. Q Sometimes where -- for instance, there was a death in your family. A Um-hum. Q Have there been times as well where he has just changed the custody schedule kind of unilaterally and told you this is the way it's going to be? A Yes. Q I don't want to go into great detail. Can you give us one or two examples of that? A The most recent one was the 4th of July. The 4th of July this year fell on a Monday. Bill had her that weekend, which would have been the 2nd and the 3rd. I mean, the custody schedule says bring her back on Monday at 7:00. We in the custody agreement do not have any holidays discussed except for Christmas and Thanksgiving. So it's a Monday, she's to be back. There were no prior agreements made to the 4th of July. 63 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 She wasn't back at 7:00. I waited until 8:00. I thought, well, it's a holiday. Maybe they're sleeping in. He'll bring her. He didn't bring her. I called at 8:30. He said, I'm not bringing her back. I'll bring her back Tuesday. Q Now, there was also something about his vacation schedule when he went to San Diego. Did he take that in compliance with the order or in some other way? A No. The order states -- and I'm not going to reiterate it because you guys are more than familiar with it -- but it says in there you're to schedule the vacation to include your weekend. Bill scheduled it over my weekend, therefore thinking that, oh, he would have three weeks -- three weekends of Rachel. Q Now, have you denied him extra time or have you denied him flexibility in scheduling with Rachel? A No. Q But does he discuss these things or just announce some of these changes to you? A When it's his decision, he just announces it, there's no asking. He just says this is how it's going to be. I'm going to change it, it's my decision. Q We talked about a change in -- THE COURT: When did he bring her back on the 4th or did he keep her until the next day? 64 9 1 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 WITNESS: He kept her until Tuesday. He brought her back Tuesday morning at 6:15. THE COURT: Go ahead. BY MR. ANDES: Q He testified that he typically brings her to your place, I think he said, around 6:30 in the morning on Monday morning. A That's correct. Q Is she dressed and ready for child care at that point? Has she been fed breakfast and everything? A Yes. Q Would you like to change that part of the order in some way? A I would. The order as it currently stands is that he's to bring her back at 7:00, and we've already discussed this when he was up here, you know. He said that he was going to have Adice, you know, come to the house so that she would not wake up at 5:30, get her ready, and Adice would bring her to my house. That has not occurred. Rachel, because she gets up so early, when she comes back on Monday mornings if we're sitting snuggling on the couch she tends to fall back to sleep. So I've got to rewake her up and take her to day care. I think in the best interest of Rachel she needs to come back Sunday night. That way there's no issue 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about what time she has to wake up. She is there and she can sleep, and I can get her off to day care. Q Otherwise you're satisfied with the order as it operates? A Yes. Q We need perhaps to flesh out some holidays, is that right? A Correct. There needs to be -- definitely needs to be some definitive holiday schedules. MR. ANDES: That's all the questions I have. THE COURT: Cross-examine. CROSS EXAMINATION BY MR. SCHERER: Q On the issue of your parents, isn't it true that they were always welcome in your house, they just didn't feel welcome? A That's not correct. Q You're indicating that Bill announced at some point that they were not permitted to be in your house? A Yes, he did. Q When did that occur? A That occurred last summer. Q Well, you filed for divorce in early June of last year, is that right? 66 • • 1 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 That's correct. Q And you stayed in the house up through -- Bill testified until August 12th is the date of separation. A That's correct. Q Do you agree with that? A That's correct. Q And isn't it true that Bill would never be invited to things in your family's home? A Bill was invited to things in my family's home up until this started to happen. Q And when is that? A I would say two years ago was really when it all started. Q And from two years ago to the time you separated, Bill wasn't permitted in your parents' home? A Right. Q And from the time you filed for divorce until you separated, your parents weren't permitted in your home and Bill's home? A That's correct. Q The mowing that you testified to, first of all, do you have any reason to believe that he hasn't stopped the mowing business like he testified? A Yes. Q You agree he stopped? 67 • • 1 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 No. I agree that he didn't stop. Q How much mowing is he doing? A I don't have any solid proof so I cannot say. Q I mean, he does mow Adice's lawn. You know that? A I figured that he does, yes. Rachel has stated that to me. Q But you don't know of any other lawns that mows? A I don't for sure, no. Q And he hasn't contacted you at anytime when he's supposed to have Rachel and say -- A No. Q -- I can't pick her up, I have a lawn to do? A Right. Q And you agree with me that when Bill did do lawns he brought that money home to use for the family? A Correct. Q You had a nice house? A Correct. Q You had nice automobiles? A Right. Q He started a savings account -- or the two of you started a savings account for Rachel's college, is that right? 68 • • 1 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 Correct. Q When he came home from mowing, he didn't stop off at the bar on the way home? A That's correct. Q He didn't stop off and chat with his buddies? A No. Q Did you tell Bill's sister when Rachel was a little bit younger that you were lucky to have Bill as a dad for Rachel because of the extent of his involvement in her life? A Yes. Q You know Adice, is that right? A Correct. Q You knew her during the marriage? A Correct. Q And you don't have any reason to complain about her involvement in your daughter's life? A No. Q You had testified about Bill's initial position on custody and then his change, and you've agreed with me that the date of separation was August 12th of 2004? A Correct. Q That's the date you actually left the marital residence? 69 • • 1 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 Correct. Q I'll represent to you that Bill's custody complaint was filed on August 24th of 2004. Do you have any reason to disbelieve that? A No. Q So, in fact, it was not long after you left that he came to see me and had me file this complaint for custody asking for shared custody, isn't that right? A I'm not sure of the date, maybe Sam has it, that he went to the other attorney, Bill Duncan, and filed that custody. Q My point is that you had filed for divorce in June, but you stayed in the marital residence and there was this period of time where Bill wanted the marriage to be salvaged. And then you left on August 12th, and it was not long thereafter that he made a formal request for shared custody, isn't that right? A That's correct. Q And then it took until October to finally get a conciliation and talk about it in the court context? A Correct. Q These play dates that you testified to, do they involve a person that you may be dating and their children? A No. 70 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Are you dating someone at this point and time? A No, not at this point and time. Q Have you dated somebody in the past several months? MR. ANDES: I object. THE WITNESS: I dated one person. MR. ANDES: I object. THE COURT: Hold on. They are separated. Next question. She and the child live alone together. BY MR. SCHERER: Q Have you had an adult male staying over at the house from time to time? A No. Q Do you know a fellow named -- THE COURT: Wait a minute. What are we getting into her curricular life for? MR. SCHERER: Well, because it affects the child, Your Honor. THE COURT: That doesn't affect this issue. She said there's nobody else staying overnight at the house. Is that correct? THE WITNESS: That's correct. If they stay overnight, it's not when Rachel's there. MR. SCHERER: Now, that's different, Your 71 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. That's what I'm getting into. THE COURT: When Rachel's there, does ever stay overnight? THE WITNESS: No. THE COURT: That's it. BY MR. SCHERER: Q Do you agree that one of the outcomes of the initial court meeting was that co-parenting counseling was supposed to be established? A Right. Q And do you agree that because you were involved in some kind of counseling you were going to set that up? A Correct. Q And do you also agree that you never set that up? A I agree, yes, that it took awhile to set up. I agree that it was not going to be my favorite thing to sit in a room with, you know, my ex and go over this kind of stuff. I agree, yes, I did not go the next day and call and set that up. I agree it took a couple weeks, yes. Q We had an initial conciliation where it was supposed to happen and at some point thereafter you just informed Bill, well, I don't think it's necessary and it was dropped for a period of time, isn't that right? And then it 72 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was at the next conciliation that it was resurrected -- A Right. Q -- is that right? A Right. Q And it took awhile for you to do it? A Right. I admit that it took awhile, yes. Q And is it your testimony that this counselor, this licensed -- you're going to a licensed counselor? A Correct. Q Allows Bill to sit in a counseling session with you and abuse you? A Um-hum. Q Is that your testimony? A Um-hum, yes. Q You've indicated that you understand Bill's desire to spend additional time with Rachel, and you try to be cooperative with him. A Correct. Q Isn't it true that you had your mother come down from where she lives to care for Rachel when you could have offered that time to Bill? A There was one instance that I remember that Rachel was sick, and my mom does not work. She came down to stay with Rachel. Q You didn't call Bill and give him the 73 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 opportunity to stay home? A No, I didn't. Q In fact, you led him to believe that you wer going to be there with Rachel, isn't that right? A No, that's not correct. Q You had called Bill the night before and sai don't come to get her tomorrow because she's sick and she's not going to go to day care? A Correct. Q And then Bill ended up calling you at work the next day and found out that you were there. A Correct. Bill never asked, you know. He just assumed that I was going to stay home. If we had discussed it, my mom had come down and I didn't work a full day. I came home half a day and took Rachel to the doctor. Q What about President's Day? That was a holiday for the day care. It was a holiday for township workers, but it wasn't a holiday for you. Do you remember that day? A Yes. Q And do you agree that day you contacted your mother to come down and provide care when Bill sat at home and had no idea that Rachel needed a baby-sitter that day? A Bill would have known that the day care was closed, and if Bill had a holiday, then maybe Bill should 74 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have said, hey, I have a holiday, is day care off, I can take care of Rachel. He didn't. Rachel was with me. I to work. I made plans to have Rachel taken care of. Q You agree that after the conciliation in January the return time on the Tuesdays and Thursdays was moved back to 7:30 -- A Um-hum. Q -- isn't that right? A That's correct. Q And that was so that you could get Rachel ready for be d earlier and things like that? A That's correct. Q And Bill agreed to that? A Yes. Q Isn't it true that most of the nights you don't have Rachel in bed within a half hour or so of her return to your house? A That's correct. Q Isn't it true that sometimes she stays up till 9:00, 9:30? A Um-hum, correct. Q Why is that? A Because I have not seen Rachel all day. Rachel comes home at 7:30. Rachel does not want to be immediately put in the bathtub and sent to bed. She needs 75 CI 1 and wants time with her mom, so we play. We go for walks. 2 We go to the park, and then we get ready for bed. 3 Q So Rachel will have been in day care all day 4 A Yes. 5 Q Spent a chunk of time with her dad, and then 6 returns to you to spend a chunk of time with you and engage 7 in activities? 8 A Right. 9 Q And do you think that that gives Rachel 10 enough time to rest throughout the evening to be ready for 11 the next morning when she has to wake up? 12 A Yes, I do. 13 Q There was an incident back in April where yo 14 had Rachel returned to you on a Tuesday night, I believe, 15 and then took her out to a Princess House party that night, 16 isn't that true? 17 A Yes. 18 Q Had you considered on that occasion to just 19 let Bill have an overnight rather than to take Rachel out? 20 A No, because I was attending the party which 21 was just five minutes down the road from where I live, and 22 there were a couple kids which she plays with on a normal 23 basis, sees them at school, that wanted to see her. So I 24 went, met Bill, got Rachel, took her over. We were only at 25 that house for half an hour and then we went home. 76 • 1 Q I didn't understand your testimony about 2 discipline. You said something about you don't control a 3 two to a four year old. Is that what you said, or did I 4 misunderstand that? 5 A No, that's correct. Bill is a very 6 controlling person. You don't try to control a child. You 7 try and guide them. You try and teach them, and you 8 discipline them. You don't control them. 9 Q You've had Rachel call -- or you've called 10 Bill or Rachel's called Bill at 9:30 at night or so and 11 you've asked Bill to calm Rachel down, isn't that true? 12 A There have been two occasions where that has 13 occurred. Rachel has been upset from the time that Bill has 14 left her, and she throughout the night has said, you know, I 15 want to call my daddy, I want to talk to my daddy, so I let 16 her call Bill and she's fine. 17 Q You agree if the Tuesdays were overnights 18 that that type of situation wouldn't have to occur? 19 A I agree. 20 Q Now, if Bill would talk about his vacation 21 and say that you had actually agreed verbally that he could 22 schedule his vacation as he did, would that be true or would 23 that be false? 24 A That's true. 25 Q So do I understand that he asked you in 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • 0 advance to schedule his vacation for the dates he did and then it was later that you objected to it? A He asked me at the front door when he was dropping Rachel off. I didn't have a calendar in front of me. He asked if it would be okay to take her to California in June, and I said, fine, I'll look at the calendar, and that was the end of it. I didn't have anything in front of me. Rachel was right there being dropped off. Q Do you think it would make your life easier if Bill's request for the Tuesdays and Thursdays be overnights? Do you think you would have more time to manage your affairs, and it would just be a better situation for you? A I'm not really concerned about any situation for me. I'm looking out what's best for Rachel, and that would mean two more days of going to school -- yes, she's familiar with Adice, but I truly think that it's in Rachel's best interest to be taken to school by either Bill or I and the fact that this has been in effect for a year now. Rachel is very used to it. Rachel is accustomed to it. Rachel has a year before she goes to school. I don't see it necessary to up and change things on our daughter. Q Even though Bill's been asking for this since last year, and you'll agree he's been patient in trying to resolve this with you? 78 • 0 1 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 I understand. It has nothing to do with the way Bill is or how patient he is. It's the fact of the matter that it's what's been in place for a year, and it's what's best for Rachel. Q The Monday morning return to your house, Bill didn't readily agree to that, did he? A No. Q He didn't want to do it that way? A No, he didn't want to. Q He did it that way as a compromise? A Um-hum, once again thinking that we would keep this out of court, but, you know, instead look where we are today. So that was a compromise that we agreed to. Q And you have also indicated that things have gotten better regarding the comments that you testified to that Bill makes allegedly in Rachel's presence, right? A I agreed that they are not as often and, yes, they have -- Q Do you agree that with some counseling -- strike that. Do you agree to continue to participate in the co-parenting counseling? A If it's necessary. If we need to do it, I'll be more than happy to participate. The history of the sessions that we've been going to doesn't make me very thrilled to want to continue it because there's really been 79 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 no co-parenting issues addressed. MR. SCHERER: That's all the questions that have, Your Honor. MR. ANDES: I have a few. REDIRECT EXAMINATION BY MR. ANDES: Q You were asked about the President's Day holiday. Did you know before that day that Bill had off work? A No. Q Did he ever call you and tell you he had off work and therefore he would like to have Rachel? A No. Q The vacation he took in the summer, when he approached you about it, did he tell you the specific dates or did he just say I would like to take her to California for a vacation in June? A He told me the specific dates, but I didn't have the calendar in front of me to know that it was over my weekend. Q And you allowed him -- you didn't make a fuss about that, did you? A What, him taking her to California? Q Right. A I didn't have a problem with that. I just 80 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 had a problem with the fact that he scheduled it over my weekend, and I had a problem with him not following the order. I've done my best to follow the order, and it was just very frustrating that he didn't. Q You were asked about whether his behavior an these comments have improved. You said they have. Have his comments -- the negative comments about you in the presence of Rachel, have they stopped? A I would say that the down right, you know, outward comments like you're, you know -- you're not a good mom; you're, you know, crazy; you're a mental disorder, that has stopped. But there is a lot of non-verbal communication, the sad looks, the looking at me shaking his head like, oh, this is my fault because Rachel's crying and we're separating her and, yeah, so that stuff still goes on. MR. ANDES: That's all the questions I have. Thank you. THE COURT: Anything else? RECROSS EXAMINATION BY MR. SCHERER: Q You said it was -- you really had no problem with him taking Rachel to California after it became apparent to you that it was on your weekend. Did you not have your attorney send me a letter the day before he was supposed to leave saying he couldn't go? 81 1 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 Um-hum. I consulted Sam just. to say, look, you know, he disobeyed the order again. He scheduled the time over my weekend, you know, what do we do. Q And as a result of that, did I not get a letter that said that he's not permitted to go? A Yes. Q And then we had to hash through everything, and finally he was permitted to go? A That's correct. Q And he gave you additional time to make up the time that he used that was yours? A After going through the attorneys, yes. That's what was fair. MR. SCHERER: That's all I have. THE COURT: I want to be sure I've got your schedule the reversed from his. You have the child every Monday? THE WITNESS: Yes. THE COURT: Every Wednesday? THE WITNESS: Yes. THE COURT: And alternate Thursdays through what morning? MR. ANDES: Monday. THE COURT: Alternate Thursday through -- well, you have the child every Monday through Tuesday 82 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 morning? MR. THE THE and alternate Thur THE THE You may step down. SCHERER: Right. WITNESS: Right. COURT: Every Monday, every Wednesday, sdays through Tuesday morning? WITNESS: Right. COURT: I got it. I got it reversed. THE WITNESS: Thank you. THE COURT: I think I've heard what I need to know to resolve this for these parties, and I think we will have some argument if that is acceptable to counsel. MR. SCHERER: That's fine with me, Your Honor. THE COURT: I see a whole bunch of family members. It looks like some grandparents on each side here. MR. ANDES: I think we can safely say we are going to hear a lot of positive testimony and -- THE COURT: I understand. Who else is here besides grandparents? MR. SCHERER: We have Pastor Charles Kish from Bill's church, and Mr. Gary Layton and Anna Marie Layton, and Bill's sister Betsy Layton from San Diego. THE COURT: Okay. Good. Let's take a five minute break, a short break, and then I will have argument 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 off the record. (Whereupon, argument was held off the record.) (Whereupon, the hearing was concluded at 11:05 a.m.) 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 85 ??;! ?? ?I? r?1-?% ???; :1 ?,,, -?,- A ? ? WILLIAM A. LAYTON, PLAINTIFF V. CAROL B. LAYTON, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-4217 CIVIL TERM ORDER OF COURT AND NOW, this 01-- day of January, 2006, IT IS ORDERED: (1) All prior custody orders are vacated and replaced with this order. (2) William A. Layton and Carol B. Layton shall have shared) legal custody of their daughter Rachel G. Layton, born February 18, 2001. (3) The mother shall have primary physical custody of Rachel. (4) The father shall have temporary physical custody of Rachel during fourteen day cycles as follows: (a) Starting on the first Thursday at 3:00 p.m. until Monday morning when he shall deliver Rachel to her mother's home before he goes! to work, after which the mother shall deliver her to school. On the Friday, he shall deliver Rachel to the mother's home before he goes to work, after which the mother shall deliver Rachel to school. (b) The first Tuesday from 3:00 p.m. until 7:30 p.m. (c) The second Thursday from 3:00 p.m. until the next morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver Rachel to school. (d) The second Tuesday from 3:00 p.m. until Wednesday morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver Rachel to school. (e) On each school day, from after school after which he shall deliver Rachel to the mother's home when she returns from work. (5) The following holidays shall alternate: President's Day, Memorial Day, July 4th, Labor Day and Columbus Day. Each holiday shall commence on the evening before the holiday and end on the evening of the holiday: (6) At Thanksgiving, Block A shall be from the Wednesday before Thanksgiving at 4:00 p.m. until Thursday at 5:00 p.m. Block B shall be from Thursday at 5:00 p.m. to Friday at 5:00 p.m. Block C shall be from Friday at 5:00 p.m. until Monday. The mother shall have Blocks A and C in even numbered years and Block B in odd numbered years. The father shall have Blocks A and C in odd numbered year's and Block B in even numbered years. (7) At Christmas, Block A shall be from December 23 at 5:00 p.m. to Christmas Day at 12:00 noon. Block B shall be from Christmas Day at 12:00 noon to December 27 at 6:00 a.m. Mother shall have Block A in even numbered years' and Block B in odd numbered years. The father shall have Block A in odd numbered years and Block B in even numbered years. (8) Each parent shall have Rachel for two non-consecutive Weeks (seven consecutive days) in the summer provided they give the other parent thirty days notice. The parents' alternating weekends shall be included in their even day periods. By the Court, Edgar B. Bayley, J. ra Haggerty, Esquire For William A. Layton ?Samuel Andes, Esquire For Carol B. Layton sal q 0 0\-O -- ?"' L': ""' 1-= 1?. C3?-- `- 1 C, _,i `.' __ I_. ?_ `] U. C7 cv -1 WILLIAM A. LAYTON, Plaintiff vs. CAROL B. LAYTON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4217 CIVIL TERM IN CUSTODY PETITION TO ENFORCE OR CLARIFY CUSTODY ORDER AND NOW comes the above-named Defendant by her attorney, Samuel L. Andes, and petitions the court to enforce or, if the court deems necessary, clarify its order of 6 January 2006 in the above matter, all based upon the following: 1. The moving party herein is the Defendant. The respondent herein is the Plaintiff. 2. The parties are the parents of one minor child, Rachel G. Layton, born 18 February 2001. The custody of that child is the subject of an order entered by this court on 6 January 2006, a copy of which is attached hereto and marked as EXHIBIT A. 3. Since the entry of the said order, the Plaintiff has repeatedly violated the order and failed to comply with its terms by the following conduct: A. He has failed to return the child to the mother's home before he goes to work in the morning, as required by Paragraph (4) of the order. On some occasions he has brought the child to Defendant's home but refused to deliver her into Defendant's custody unless Defendant has given him items that belong to the child or met other unreasonable conditions he has imposed. B. He has consistently failed and refused to return the child to Defendant's custody when Defendant returns from work in the evening, as required by Paragraph (4) (e). 4. The conduct of Plaintiff, as described above, has continued after Defendant and her attorney have repeatedly requested that the conduct cease and that the child be returned to her in strict accordance with the terms of this court's order of 6 January 2006. 5. Defendant believes that Plaintiff is aware of the requirements of the order and has willfully chosen not to obey the order or comply with its terms. Accordingly, Defendant requests that this court enforce the terms of its order. In the event that there is any basis for confusion or uncertainty, Defendant requests that this court clarify the terms of its order of 6 January 2006, by setting specific times for the return of the child, if necessary. 6. The conduct of Plaintiff, which frequently takes place in the presence of the child, is upsetting and detrimental to the child and disruptive of the child's relationship with Defendant. WHEREFORE, Defendant prays this court to direct Plaintiff to strictly comply with the terms and provisions of the order of 6 January 2006 and, if the court deems it necessary, to clarify that order by setting specific times for the Plaintiff to return the child to the Defendant's custody. Samuel L. Andes V Attorney for Defendant Supreme Court ID # 17225 525 North 12th Street Lemoyne, Pa 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: CAROL B. LAYT N CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon counsel for the Plaintiff by regular mail, postage prepaid, addressed as follows: Kara W. Haggerty 36 south Hanover Street Carlisle, PA 17013 Date: Amy M. Harkins Secretary for Samuel L. Andes EXHIBIT A WILLIAM A. LAYTON, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CAROL B. LAYTON, DEFENDANT 04-4217 CIVIL TERM ORDER OF COURT AND NOW, this Ak- day of January, 2006, IT IS ORDERED: (1) All prior custody orders are vacated and replaced with this order. (2) William A. Layton and Carol B. Layton shall have shared legal custody of their daughter Rachel G. Layton, born February 18, 2001. (3) The mother shall have primary physical custody of Rachel. (4) The father shall have temporary physical custody of Rachel during fourteen day cycles as follows: (a) Starting on the first Thursday at 3:00 p.m. until Monday morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver her to school. On the Friday, he shall deliver Rachel to the mother's home before he goes to work, after which the mother shall deliver Rachel to school. (b) The first Tuesday from 3:00 p.m. until 7:30 p.m. (c) The second Thursday from 3:00 p.m. until the next morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver Rachel to school. (d) The second Tuesday from 3:00 p.m. until Wednesday morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver Rachel to school. (e) On each school day, from after school after which he shall deliver Rachel to the mother's home when she returns from work. (5) The following holidays shall alternate: President's Day, Memorial Day, July 4th, Labor Day and Columbus Day. Each holiday shall commence on the evening before the holiday and end on the evening of the holiday: (6) At Thanksgiving, Block A shall be from the Wednesday before Thanksgiving at 4:00 p.m. until Thursday at 5:00 p.m. Block B shall be from Thursday at 5:00 p.m. to Friday at 5:00 p.m. Block C shall be from Friday at 5:00 p.m. until Monday. The mother shall have Blocks A and C in even numbered years and Block B in odd numbered years. The father shall have Blocks A and C in odd numbered years and Block B in even numbered years. (7) At Christmas, Block A shall be from December 23 at 5:00 p.m. to Christmas Day at 12:00 noon. Block B shall be from Christmas Day at 12:00 noon to December 27 at 6:00 a.m. Mother shall have Block A in even numbered years and Block B in odd numbered years. The father shall have Block A in odd numbered years and Block B in even numbered years. (8) Each parent shall have Rachel for two non-consecutive weeks (seven consecutive days) in the summer provided they give the other parent thirty days notice. The parents' alternating weekends shall be included in their even day periods. By the Court, Edgar B. Bayley, J. Kara Haggerty, Esquire For William A. Layton Samuel Andes, Esquire For Carol B. Layton :sal r f hrzre unio set my hand and it,e of as rou at adisl , Pa. r Th', 9 ..1 .., ?D ,, ?,?? , , t .? I ? FEB 2 6 7 1,1 7. WILLIAM A. LAYTON, Plaintiff vs. CAROL B. LAYTON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4217 CIVIL TERM IN CUSTODY ORDER OF COURT AND NOW this 10 day of ?1) QA t ? , 2006, upon consideration of the attached Petition, a conference is hereby scheduled in the chambers of the undersigned, for counsel, with the parties present ip the courthouse, for ( 3 b o'clock -IL-.m. on t) 1 theday of 11 2 2006. BY CO R71 Distribution: Kara W. Haggerty, Esquire (Attorney for Plaintiff) 36 South Hanover Street, Carlisle, Pa 17013 Samuel L. Andes, Esquire (Attorney for Defendant) 525 North 12th Street, Lemoyne, PA 1.7043 CAROL, B. LAYTON V. WILLIAM A. LAYTON IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 2004-4217 CIVIL TERM CIVIL ACTION-LAW IN CUSTODY PETITION FOR MODIFICATION OF PARTIAL CUSTODY ORDER The Petition of William A. Layton, Father, respectfully represents that on January 6, 2006, an Order of Court was entered for Partial Custody, a true and correct copy of which is attached. 2. This Order should be modified because: a. Enrollment for Kindergarten is scheduled to begin in March 2006. b. Father has expressed that he would like Rachel to attend Bethel Christian Academy. c. Father has offered to be solely responsible for the tuition to Bethel Christian Academy, thereby eliminating any financial strain on Mother. d. Bethel Christian Academy offers a full-day kindergarten program. e. Bethel Christian Academy offers before and after school child care services. f Mother has expressed that she would prefer Rachel to attend public school. g. Mother resides in the Carlisle School District, and the child would attend Crestview Elementary. h. Father resides in the Carlisle School District, and the child would attend Bellaire Elementary School. i. Crestview Elementary School does not offer a full-day kindergarten program. j. Bellaire Elementary School does offer a full-day kindergarten program. k. Bellaire Elementary School also offers a before and after school child care program. 1. Bellaire Elementary School is convenient to both Mother and Father, as Mother drives by the school both to and from work. m. It would be in Rachel's best interest to attend a school where she is able to participate in a full-day kindergarten program. n. It would be in Rachel's best interest to attend a school where childcare is available to avoid multiple disruptions in her day. o. It would be in Rachel's best interest for her Father to have either primary or shared physical custody in order to enroll her in school in his elementary district WHEREFORE, Petitioner requests that This Honorable Court modify the existing Order for Partial Custody and grant Father primary or shared physical custody because it will be in the best interest of the child. Respectfully submitted, ABOM& KUTULmus, L.L.P DATE o b E ??, Kara W. Haggertys uire ID #86914 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 Attorney for Petitioner F WILLIAM A. LAYTON, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. L JAN ' CAROL B. LAYTON, DEFENDANT 04-4217 CIVIL TERM j ORDER OF COURT AND NOW, this v -kk-- day of January, 2006, IT IS ORDERED: (1) All prior custody orders are vacated and replaced with this order. (2) William A. Layton and Carol B. Layton shall have shared legal custody of their daughter Rachel G. Layton, born February 18, 2001. (3) The mother shall have primary physical custody of Rachel. (4) The father shall have temporary physical custody of Rachel during fourteen day cycles as follows: (a) Starting on the first Thursday at 3:00 p.m. until Monday morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver her to school. On the Friday, he shall deliver Rachel to the mother's home before he goes to work, after which the mother shall deliver Rachel to school. (b) The first Tuesday from 3:00 p.m. until 7:30 p.m. (c) The second Thursday from 3:00 p.m. until the next morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver Rachel to school. (d) The second Tuesday from 3:00 p.m. until Wednesday morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver Rachel to school. (e) On each school day, from after school after which he shall deliver Rachel to the mother's home when she returns from work. (5) The following holidays shall alternate: President's Day, Memorial Day, July 4th, Labor Day and Columbus Day. Each holiday shall commence on the evening before the holiday and end on the evening of the holiday: (6) At Thanksgiving, Block A shall be from the Wednesday before Thanksgiving at 4:00 p.m. until Thursday at 5:00 p.m. Block B shall be from Thursday at 5:00 p.m. to Friday at 5:00 p.m. Block C shall be from Friday at 5:00 p.m. until Monday. The mother shall have Blocks A and C in even numbered years and Block B in odd numbered years. The father shall have Blocks A and C in odd numbered years and Block B in even numbered years. (7) At Christmas, Block A shall be from December 23 at 5:00 p.m. to Christmas Day at 12:00 noon. Block B shall be from Christmas Day at 12:00 noon to December 27 at 6:00 a.m. Mother shall have Block A in even numbered years and Block B in odd numbered years. The father shall have Block A in odd numbered years and Block B in even numbered years. (8) Each parent shall have Rachel for two non-consecutive weeks (seven consecutive days) in the summer provided they give the other parent thirty days notice. The parents' alternating weekends shall be included in their even day periods. Kara Haggerty, Esquire For William A. Layton Samuel Andes, Esquire For Carol B. Layton sal By the Court, Edgar B. Bayley, J. P VERIFICATION I hereby verify that the statements contained in this Petition to Modify Custody 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 of 18 Pa.C.S. 5 4904, relating to unsworn falsification to authorities. 3-a-oc. Date William Layton CERTIFICATE OF SERVICE AND NOW, I, Kara W. Haggerty, Esquire, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing Petition for Modification of Partial Custody Order by First Class U.S. Mail at the following: Sam Andes, Esquire 525 N.12`h Street P.O. Box 168 Lemoyne, PA 17043 3 03 D(v Date Kara W. Hagger , quire ?,., - (? 1.a J ? `y,? p' v, ,? J ? ? ? CAROL B. LAYTON IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. WILLIAM A. LAYTON DEFENDANT 04-4217 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Friday, March 10, 2006 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland Count Courthouse, Carlisle on Thursday April 13, 2006 at 8:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. 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/ JacgueGne M. Verney, EsT.__ Custody Conciliator 01 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 `, ? ,°,?'> ?,?? ?- of ? -, , ? ,. ,- . t WILLIAM A. LAYTON, PLAINTIFF V. CAROL B. LAYTON, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-4217 CIVIL TERM ORDER OF COURT 4`? day of March, 2006, IT IS ORDERED that the AND NOW, this custody order of January 6, 2006, is amended as follows: (A) Paragraph (4)(a), (c) and (d) providing that the father "shall deliver Rachel to her mother's home before he goes to work," shall mean that these deliveries of Rachel to the mother's home shall be at 5:50 a.m. (B) Paragraph 4(e) is vacated and replaced with the following: On each school day, from after school after which he shall deliver Rachel to her mother's place of employment at Carlisle Syntec at 5:05 p.m., and he shall not feed Rachel dinner on these days. (C) The last sentence in paragraph 5 is deleted and replaced with the following: Each holiday shall commence at 6:00 p.m. on the evening before the holiday and end at 6:00 p.m. on the evening of the holiday. (D) All other provisions in the order of January 6 2006, shall remain in full force and effect l -2' ?3 By w C Edgar L:, `- F' ? r_ r.7 i, (.,.! _i; ( ?'a , i LlY -p- }- LL -'? <'> i.? ?v Kara Haggerty, Esquire For William A. Layton Samuel Andes, Esquire For Carol B. Layton sal WILLIAM A. LAYTON, : IN THE COURT OF COMMON EAS-GF-- ?J Plaintiff/Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004-4217 CIVIL ACTION - LAW CAROL B. LAYTON, Defendant/Respondent : IN CUSTODY ORDER OF COURT AND NOW, this _a day of &00, , 2006, upon consideration of the attached Custody Conciliation port, it is ordered and directed as follows: 1. The prior Orders of Court dated January 6, 2006 and March 22, 2006 shall remain in full force and effect with the following modification. 2. The parties agree that the child will attend Bellaire Elementary School if Carlisle School District approves the request. 3. This Order has been entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT la /.. J. cgara W. Haggerty, Esquire - Counsel for Father X amuel el Andes, Esquire - Counsel for Mother V .0 0, _<< ? _ _ i°:`?' +,C i1 i r' ,??i ?? ?' ' ? WILLIAM A. LAYTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff(Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA V. :2004-4217 CIVIL ACTION - LAW CAROL B. LAYTON, Defendant/Respondent : IN CUSTODY PRIOR JUDGE: Edgar B. Bayley, J. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Rachel G. Layton February 18, 2001 Mother 2. A Conciliation Conference was held in this matter on April 13, 2006. Father, William A. Layton was present with counsel, Kara W. Haggerty, Esquire, and Mother, Carol B. Layton, was present with counsel, Samuel Andes, Esquire. 3. Prior Orders of Court were entered by the Honorable Edgar B. Bayley dated January 6, 2006 and March 22, 2006 providing for shared legal custody, Mother having primary physical custody and Father having periods of partial physical custody. 4. The parties agreed to an Order in the form attached. Date acq line M. Verney, Esquire Custody Conciliator WILLIAM A. LAYTON, ) Plaintiff ) vs. ) CAROL B. LAYTON, ) Defendant ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4217 CIVIL TERM IN CUSTODY DEFENDANT'S PETITION FOR CONTEMPT AND SANCTIONS AND NOW comes the above-named Defendant by her attorney, Samuel L. Andes, and petitions the court to adjudge the Plaintiff in contempt of its prior orders and to impose sanctions, based upon the following: 1. The moving party herein is the Defendant. The respondent herein is the Plaintiff. 2. The parties are the parents of one minor child, Rachel G. Layton, now age 5, born 18 February 2001. The custody of that child is the subject of prior orders of this Court dated 6 January 2006 and 22 March 2006, copies of which are attached hereto and marked, collectively, as Exhibit A. 3. Over the past several months the Plaintiff has repeatedly and flagrantly violated this Court's prior orders. His violations have included the following: A. In early July of 2006, Plaintiff kept the child beyond his scheduled period of custody and beyond his permitted period of vacation custody, contrary to the wishes and without the consent of Defendant. B. The Plaintiff exercised more than his allowed time of vacation custody during the summer of 2006, in open defiance of this Court's orders and without the consent of Defendant. C. The Plaintiff refused to return the child at the end of his period of his custody over the Labor Day weekend, in open and defiant violation of this Court's orders and without the consent of Defendant. -1- D. On the 1" of September, 2006, after bringing the child to Defendant's place of employment as required by the current custody order, Plaintiff refused to allow Defendant to have custody of the child and demanded that Defendant come to Plaintiff's home to pick up the child, all in violation of this Court's Order of 22 March 2006. Plaintiff, by his conduct, has demonstrated an unwillingness to comply with this Court's orders and a disregard of Defendant's custodial and other rights regarding the child. 4. In addition to his repeated violations of this Court's custody orders, with regard to the schedule of custody, the Defendant has violated the spirit of those orders in the following ways: A. Plaintiff has repeatedly used the occasion of custodial exchanges to berate, insult, and denigrate Defendant in the presence of the child. B. Plaintiff has directed offensive, abusive, and foul language at Defendant in the presence of the child on numerous occasions. C. On one occasion, at the child's school, the Plaintiff, after directing foul and insulting language at Defendant, threw a bag of the child's clothing at Defendant. D. On two separate occasions on the 1St of September, 2006, after insulting and berating Defendant in the presence of the child, Plaintiff, in a fit of anger, intentionally spit upon Defendant, again in the presence and within the sight of the child. Plaintiff's conduct has demeaned Defendant in the presence of the child and creates a risk that the child will lose respect for Defendant because of such conduct. 5. Plaintiff's conduct toward Defendant, particularly that conduct in the presence of the child, prevents proper, meaningful, and productive communication between Plaintiff and Defendant and disrupts the harmony of the child's life. 6. Defendant believes that Plaintiff must understand the proper functioning of the Court to resolve the custody dispute between the parties and understand that he may not, -2- unilaterally and without consequence, violate this Court's orders and demean Defendant in the presence of the child. WHEREFORE, Defendant prays this Court to adjudge the Plaintiff in contempt of its prior orders, to modify those orders to reduce Plaintiff's time with the child, to require Plaintiff to attend counseling to control his anger and better understand the role and function of the Court in resolving custody disputes, and to impose such other sanctions, including an award to Defendant of her attorney's fees, as the Court deems appropriate or necessary to properly enforce its orders in the future. A Samuel L. An es Attorney for Defendant Supreme Court ID # 17225 P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 -3- I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unworn falsification to authorities). Date: q- 71 06 CAROL B. LAYTON -4- CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon counsel for the Plaintiff by regular mail, postage prepaid, addressed as follows: Kara W. Haggerty 36 South Hanover Street Carlisle, PA 17013 Date: qjq?) muel L. Ande -5- ?-?-' ? ?? _ _ ?, ? ? Ott t " - "Y, ?a ? ? i'?- -r+ U `, WILLIAM A. LAYTON IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V' 04-4217 CIVIL ACTION LAW CAROL B. LAYTON IN CUSTODY DEFENDANT ORDER OF COURT AND NOW, Wednesday, September 27, 2006 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at--4th Floor, Cumberland County Courthouse, Carlisle on Thursday, October 19, 2006 at 8:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. 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/ aq ueline M. Verne Es . Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For infonnation 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 ri-VI C4,,0s71 ?, -..?-* ro ,end OA? fa ? ? ? 2 ?a?r ?v ? 9v dz° g 00 0 Vd 6Z dls 9ITZ OCT 312006 WILLIAM A. LAYTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004-4217 CIVIL ACTION - LAW CAROL B. LAYTON, Defendant : IN CUSTODY ORDER OF COURT AND NOW, this day of -tflglu?. , 2006, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. A Hearing is scheduled in Court Room No. R , of the Cumberland County Court House, on the r ' Q,- day of I VMd9,,Sa,.-, 200k, at 11:00 o'clock, A. M., at which time testimony will be taken. For purposes of this Hearing, the Mother shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be expected to testify at the Hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least ten days prior to the Hearing date. 2. Pending further Order of Court or agreement of the parties, the prior Orders of Court dated January 6, 2006, March 22, 2006 and April 13, 2006 shall remain in full force and effect. 3. The parties may modify this Order by mutual agreement. In the absence of mutual consent, the terms of this Order shall control. BY Edgar B. Bayley, P.J. cQ el L. Andes, Esquire, counsel for Mother ara W. Hakgerty, Esquire, counsel for Father J .-- ? 1? "?? ?? . ? ? ; "' i r '?' tt S ' r».? }? _ _ , ? { .; ? ? ?? 1 ... . 'y 5 WILLIAM A. LAYTON, Plaintiff V. CAROL B. LAYTON, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2004-4217 CIVIL ACTION - LAW : IN CUSTODY PRIOR JUDGE: Edgar B. Bayley, P.J. 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 Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Rachel G. Layton February 18, 2001 Mother 2. A Conciliation Conference was held October 30, 2006 with the following individuals in attendance: The Mother, Carol B. Layton, with her counsel by telephone, Samuel L. Andes, Esquire, and the Father, William A. Layton, with his counsel, Kara W. Haggerty, Esquire. 3. The Honorable Edgar B. Bayley, President Judge previously entered Orders of Court dated January 6, 2006, March 22, 2006 and April 13, 2006 providing for shared legal custody and with Mother having primary physical custody, with Father having 6 overnights out of any 14 day period. 4. Mother's position on custody is as follows: Mother seeks the status quo to continue but that Father be found in contempt of the Orders of Court for the following reasons: keeping the child longer than is permitted in the current Orders, denigrating Mother in public and in front of the child, allegedly spitting on Mother in front of the child. Mother also alleges that Father tells the child not to tell Mother anything that happens while in Father's care, most recently accompanying Father on his second job mowing lawns. 5. Father's position on custody is as follows: Father seeks to continue the status quo. He denies Mother's allegations of contempt. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing and continuing the prior Orders of Court. It is expected that the Hearing will require one-half day. I6 -'-36 -6 Date acq line M. Verney, Esquire Custody Conciliator WILLIAM A. LAYTON, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CAROL B. LAYTON, DEFENDANT 04-4217 CIVIL TERM ORDER OF COURT AND NOW, this&day of December, 2006, following a hearing, the petition of Carol B. Layton to hold William A. Layton in contempt of a custody order dated January 6, 2006, as amended by an order of March 22, 2006, 1 adjudicate William A. Layton in contempt.' Disposition is that William A. Layton shall comply with every provision of the custody orders and pay a fine of $250. The fine is payable to the mother as taxable against her costs, and shall be paid not later than 15 days from this date. ,A/,ara Haggerty, Esquire For illiam A. Layton amuel Andes, Esquire a For Carol B. Layton sal Edgar B. Bay ' The father is in violation of the custody order regarding the total amount of time he kept Rachel during the 4th of July period; however, that did not constitute a second week of summer custody. The father is in violation of the order for not providing the mother 30 days notice of the second week of summer custody that he took over the Labor Day period; however, he had already been wrongfully told by her that he was not entitled to that time. ?.. rr.- ?-- ?? ? ?- «f-°,, ?,,, 7 a` ?? ? -- -- ?? r_,- ?? -til lam, ??? Z-:,J `J p ;'??~a -?.. ? V' WILLIAM A. LAYTON, Plaintiff V. CAROL B. LAYTON, Defendant IN THE COURT OF COMMON PLEAS OF COUNTY, PENNSYLVANIA No. 04-4CIVIL TERM CIVIL ACTION - LAW IN CUSTODY PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of the Plaintiff, William A. Layton, in the above captioned case. Respectfully submitted, Rominger & Associates DateAlm1wLer ? aW 1 E. Rorml__--- nger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff i (yY NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 WOLF & WOLF 10 WEST HIGH STREET CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFF WILLIAM A. LAYTON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. DOCKET NO. 2004-4217 CIVIL TERM CAROL B. LAYTON, CIVIL ACTION - LAW Defendant IN CUSTODY PRAECIPE FOR WITHDRAWAL AND ENTRY OF APPEARANCE OF COUNSEL OF RECORD TO THE PROTHONOTARY: Please withdraw the appearance of KARL E. ROMINGER, ESQUIRE, as attorney of record for Plaintiff, WILLIAM A. LAYTON, in this matter. FEBRUARY , 2009 00 KARL E. ROMINGER, ESQUIRE ROMINGER & ASSOCIATES 155 SOUTH HANOVER STREET CARLISLE, PA 17013 717-241-6070 SUPREME COURT ID NO. 81924 Please enter the appearance of NATHAN C. WOLF, ESQUIRE, as attorney for the Plaintiff, WILLIAM A. LAYTON, in this matter. FEBRUARY /7 , 2009 WOLF & WO '?'ftomeys at Law BY: l'/ C NATHAN &.,WOLF,ESQUIRE WOLF & WOLF 10 WEST HIGH STREET CARLISLE, PA 17013 717-241-4436 SUPREME COURT ID NO. 87380 L rZ? N NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 WOLF & WOLF 30 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF WILLIAM A. LAYTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : DOCKET No. 2004-4217 CIVIL TERM JESSICA L. MILLER, : CIVIL ACTION - LAW Defendant : IN CUSTODY CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, certify that I have served a true and correct copy of the Praecipe for Withdrawal and Entry of Appearance of Counsel of Record upon the following person and in the matter indicated: SERVICE BY U.S. MAIL Samuel L. Andes, Esquire P.O. Box 168 525 N. 12th Street Lemoyne, PA 17043 Respectfully submitted, WOLF & WOLF Dated: February / , 2009 By: Nathan o ' e Attorney for Plijugff r _. ' n NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 WOLF & WOLF 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF WILLIAM A. LAYTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. DOCKET NO. 2004-4217 CIVIL TERM CAROL B. LAYTON, CIVIL ACTION - LAW Defendant IN CUSTODY PETITION FOR MODIFICATION AND NOW COMES the plaintiff, William A. Layton, by and through his counsel, Nathan C. Wolf, Esquire, and presents the following petition for modification of custody and in support thereof represents as follows: 1. Plaintiff is William Layton, an adult individual residing at 7 Ascot Lane, Carlisle, Cumberland County, Pennsylvania 17013. (hereinafter referred to as "Father") 2. Defendant is Carol B. Darhower (formerly Carol Layton), an adult individual residing at 4 Matthew Court, Carlisle (South Middleton Township), Cumberland County Pennsylvania, 17015. (hereinafter referred to as "Mother") 3. The parties are the natural parents of one minor child, namely, Rachel Grace Layton, age 8, born February 18, 2001. 4. The parties are currently subject to a custody order entered by agreement on April 13, 2006, by the Honorable Edgar B. Bayley, following a conciliation conference held on April 13, 2006, which modified, in part, the Court's Orders issued March 22, 2006 and January 6, 2006. (True and correct copy of said orders are attached hereto as Exhibits A, B, and C, respectively). 5. The Orders provide for, inter alia, the parties to share legal custody of the child, awarding Mother primary physical custody and granting Father periods of partial physical custody. 6. On a biweekly basis, the child spends eight (8) overnights in the custody of Mother and six (6) overnights in the custody of Father. 7. Father also has custody of the child for an additional evening on alternating Tuesdays (Father has overnight custody on alternating Tuesday nights). 8. The most recent Order specifically provided that the child would attend Bellaire Elementary School if the Carlisle School District approved the request. 9. The child has attended Bellaire Elementary School since the issuance of that Order. 10. At the time, Mother had relocated to a residence within the Carlisle School District but in the part of the district where students are assigned to attend Crestview Elementary School. 11. In 2006, Father resided in the area assigned to Bellaire Elementary School, where he continues to reside presently. 12. For various reasons, the parties reached an agreement keeping the child enrolled at Bellaire Elementary School. 13. On or about November 22, 2008, Mother relocated from North Middleton Township, which was in the Carlisle School District (where she had lived since 2006) to her current residence in South Middleton Township which is located in the South Middleton School District. 14. For the 2008-2009 school year, the child has continued to attend the Carlisle School District. 15. Father believes that Mother intends to enroll the child in the South Middleton School District for the 2009-2010 school year. 16. The child has attended Bellaire Elementary School since she began Kindergarten in the fall of 2005. 17. The child is performing well in school and is making excellent academic and social progress. 18. Father has attempted to communicate with Mother to reach an agreement whereupon Father would have one additional overnight (on the Tuesday when he already enjoys custody of the child in the evening) so that the child would reside in the parties' shared physical custody and could therefore continue to attend school at Bellaire, without necessitating the payment of tuition. 19. Mother is unwilling to modify the schedule to allow the child to remain in her current school where the child has many close friendships with classmates. 20. Moreover, the child is involved in multiple extra-curricular activities with her friends from school including her church activities, Brownies and gymnastics. 21. Because of the current schedule, Father is able to see the child each day after school until Mother finishes work and picks up the child from Father's house. 22. Father's house and the child's school are roughly located between Mother's employment and her new home. 23. Since July of 2008, Mother has been picking up the child from Father's house each afternoon on her nights of custody without incident. 24. Father's work schedule permits him to spend time with the child each day after school, regardless of which parent has overnight custody. 25. As a result of the child's attendance at Bellaire, Father is also able to transport the child to her activities on the evenings when he has custody. 26. If the child attended school in the South Middleton School District, her school would be more than ten miles from Father's residence and he would not be able to continue to transport the child to her various activities. 27. Moreover, if the child changes schools she will no longer have the opportunity to be involved in extra-curricular activities with her classmates. 28. Upon information and belief, there are few, if any, children in the same grade as the child who participate in her extracurricular activities and who attend South Middleton Elementary School. 29. The proposed change to shared physical custody between the parties represents the least disruption from the schedule of custody that has been in place for more than three (3) years. 30. Father agrees that should the relief requested herein be granted by the Court, despite the shard custody of the child, Father will not seek a decrease or termination of the child support obligation he currently pays through the Domestic Relations Section. 31. Father believes and therefore avers that based upon the foregoing reasons, that an award of shared physical custody of the child to the parties would be in the child's best interests and serve her permanent welfare. WHEREFORE, for the reasons set forth herein, plaintiff, William A. Layton, respectfully requests that the Court enter an order modifying the existing custody order granting shared legal and physical custody of the child to the parties, by changing Father's alternating Tuesday evening visit to a full period of overnight custody, and providing for the child to remain in the Carlisle School District unless authorized by a subsequent order of court of the mutual agreement of the parties, along with any additional relief that the Court may deem appropriate and just. Respectfully submitted, WOLF & WOLF, Attorneys at Law Date: May -4-1 2009 NA C. WOLF, ESQUIRE 10 WEST HIGH STREET CARLISLE, PA 17013 (717) 241-4436 SUPREME COURT ID NO. 87380 ATTORNEY FOR PLAINTIFF WILLIAM A. LAYTON, : IN THE COURT OF COMMON >A====J Plaintiff/Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004-4217 CIVIL ACTION - LAW CAROL B. LAYTON, Defendant/Respondent : IN CUSTODY ORDER OF COURT AND NOW, this day of A-MA _ , 2006, upon consideration of the attached Custody Conciliation Itport, it is ordered and directed as follows: 1. The prior Orders of Court dated January 6, 2006 and March 22, 2006 shall remain in full force and effect with the following modification. 2. The parties agree that the child will attend Bellaire Elementary School if Carlisle School District approves the request. 3. This Order has been entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. BY THE J. ? Xaa W. Haggerty, Esquire - Counsel for Father muel Andes, Esquire - Counsel for Mother V 0A EX1Zi?i ? `? A:: ;? , 17 t ?. WILLIAM A. LAYTON, PLAINTIFF V. CAROL B. LAYTON, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04,4217 CIVIL TERM ORDER OF COURT AND NOW, this ?' day of March, 2006, IT IS ORDERED that the custody order of January 6, 2006, is amended as follows: (A) Paragraph (4)(a), (c) and (d) providing that the father "shall deliver Rachel to her mother's home before he goes to work," shall mean that these deliveries of Rachel to the mother's home shall be at 5:50 a.m. (B) Paragraph 4(e) is vacated and replaced with the following: On each school day, from after school after which he shall deliver Rachel to her mother's place of employment at Carlisle Syntec at 5:05 p.m., and he shall not feed Rachel dinner on these days. (C) The last sentence in paragraph 5 is deleted and replaced with the following: Each holiday shall commence at 6:00 p.m. on the evening before the holiday and end at 6:00 p.m. on the evening of the holiday. (D) All other provisions in the order of January 6 2006, shall remain in full force and effect 03 By thou ' I e>, Kara Haggerty, Esquire For William A. Layton Samuel Andes, Esquire For Carol B. Layton :sal r ; WILLIAM A. LAYTON. PLAINTIFF V. CAROL B. LAYTON, DEFENDANT AND NOW, this ORDER OF COURT © il, day of January, 2006, IT IS ORDERED: (1) All prior custody orders are vacated and replaced with this order. (2) William A. Layton and Carol B. Layton shall have shared legal custody of their daughter Rachel G. Layton, born February 18, 2001. (3) The mother shall have primary physical custody of Rachel. (4) The father shall have temporary physical custody of Rachel during fourteen day cycles as follows: (a) Starting on the first Thursday at 3:00 p.m. until Monday morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver her to school. On the Friday, he shall deliver Rachel to the mother's home before he goes to work, after which the mother shall deliver Rachel to school. (b) The first Tuesday from 3:00 p.m. until 7:30 p.m. (c) The second Thursday from 3:00 p.m. until the next morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver Rachel to school. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-4217 CIVIL TERM ?`? hI vb i + ' c, I (d) The second Tuesday from 3:00 p.m. until Wednesday morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver Rachel to school. (e) On each school day, from after school after which he shall deliver Rachel to the mother's home when she returns from work. (5) The following holidays shall alternate: President's Day, Memorial Day, July 4th, Labor Day and Columbus Day. Each holiday shall commence on the evening before the holiday and end on the evening of the holiday: (6) At Thanksgiving, Block A shall be from the Wednesday before Thanksgiving at 4:00 p.m. until Thursday at 5:00 p.m. Block B shall be from Thursday at 5:00 p.m. to Friday at 5:00 p.m. Block C shall be from Friday at 5:00 p.m. until Monday. The mother shall have Blocks A and C in even numbered years and Block B in odd numbered years. The father shall have Blocks A and C in odd numbered years and Block B in even numbered years. (7) At Christmas, Block A shall be from December 23 at 5:00 p.m. to Christmas Day at 12:00 noon. Block B shall be from Christmas Day at 12:00 noon to December 27 at 6:00 a.m. Mother shall have Block A in even numbered years and Block B in odd numbered years. The father shall have Block A in odd numbered years and Block B in even numbered years. (8) Each parent shall have Rachel for two non-consecutive weeks (seven consecutive days) in the summer provided they give the other parent thirty days notice. The parents' alternating weekends shall be included in their even day periods. Kara Haggerty, Esquire For William A. Layton Samuel Andes, Esquire For Carol B. Layton :sal -,., ts"tc+tasy VERIFICATION I do hereby verify that I am the plaintiff in the foregoing action and that the facts set forth in this petition are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 PaGS. Section 4904, relating to unworn falsification to authorities. April-;D, 2009 William A. Layton NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 WOLF & WOLF 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF WILLIAM A. LAYTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. DOCKET NO. 2004-4217 CIVIL TERM CAROL B. LAYTON, : CIVIL ACTION - LAW Defendant IN CUSTODY CERTIFICATE OF SERVICE I, Nathan C Wolf, Esquire, attorney for plaintiff, do hereby certify that this date, I have served a copy of the foregoing petition forMo&Bcation upon the following person, by United States Mail, addressed as follows: Samuel L. Andes, Esquire 525 North Twelfth Street P.O. 168 Lemoyne, PA 17043 Respectfully submitted, WOLF & WOLF Date: May -?-, 2009 By: Nathan off, Esquire 10 W t igh Street Car , PA 17013 (717) 241-4436 Supreme Court I.D. No. 87380 Attorney for Plaintiff' ^r?' .. ... I'.',.11.? 2101, ,rvi -I 7 • r), r J.34. Qtz?j 4 -2 0. Ut) GA- .1, y -7/ PI.-I. .z a v 5?, WILLIAM A. LAYTON, Plaintiff VS. CAROL B. DARHOWER, formally CAROL B. LAYTON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4217 CIVIL TERM IN DIVORCE DEFENDANT'S PETITION FOR AUTHORIZATION TO CHANGE SCHOOLS AND NOW comes the above-named Defendant, by her attorney, Samuel L. Andes, and petitions the court as follows: 1. The Petitioner herein is the Defendant. The Respondent herein is the Plaintiff. 2. The parties are the parents of one minor child, Rachel Layton, who is currently a second grade student in the Carlisle School District. 3. As a result of a dispute between the parties over the child's school attendance, this court entered an order dated 13 April 2006. The background of that order is that the Plaintiff wanted to enroll the child in a private Christian school and the Defendant would not agree. The matter was resolved by the parties agreement that the child would be enrolled in the Carlisle School District, which is where both parties reside at that time. The child has continued in the Carlisle schools since that order. A copy of said order is attached hereto and marked as Exhibit A. 4. In November of 2008, Defendant purchased a home at 4 Matthew Court, Carlisle, Pennsylvania. That home is located in the South Middleton School District. She and the child moved to that residence in late November 2008. 5. Although Defendant continued the child's attendance in the Carlisle School District, and specifically at Bellaire Elementary School, through the end of the current school year, it has always been her plan to enroll the child in the South Middleton Schools commencing in August of 2009. That continues to be her plan. 6. Plaintiff has demanded that the child continue in the Carlisle School District and has threatened to take action against Defendant for violation of this court's order of 13 April 2006 if Defendant enrolls the child in the South Middleton School District for the next school year. 7. The child resides in the primary custody of Defendant and Defendant believes it is in the child's best interest to attend school in the South Middleton School District. 8. Because the child does not reside in the Carlisle School District, her enrollment in Carlisle schools will require payment of tuition as a non resident student, if the Carlisle School District will allow her to enroll at all. 9. The parties have not been able to resolve this dispute themselves and action by the court will likely be necessary. 10. Prior orders in this matter have been entered by the Honorable Edgar B. Bayley 11. Plaintiff does not agree with the relief requested by Defendant in this Petition. WHEREFORE, Petitioner/Defendant prays this court to authorize her to enroll the parties' child in the South Middleton School District. Samuel L. Andes Attorney for Defendant Supreme Court ID 17225 525 North 12th Street Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this Petition are true and correct. I understand that any false statements in this Petition are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). ' DATE: Inq CAROL B. DARHOWER EXHIBIT A WILLIAM A. LAYTON, Plaintiff/Petitioner V. CAROL B. LAYTON, Defend Ant/Respondent APR 13 2006 : IN THE COURT OF COMMON PLEA:.. : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-4217 CIVIL ACTION - IN CUSTODY ORDER OF COURT AND NOW, this 13 day of ? ->006, upon consideration of the attached Custody Conciliates n Report, it is ordered and directed as follows: 1. The prior Orders of Court dated January 6, 2006 and March 22, 2006 shall remain in full force and effect with the following modification. 2 The parties agree that the child will attend Bellaire Elementary School if Carlisle School District approves the request. 3. This Order has been entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT, AAA J. cc: Kara W. Haggerty, Esquire - Counsel for Father Samuel Andes, Esquire - Counsel for Mother 17 FI' '=D E . OF THE 2699 MAY -€ P 2: 3 4 I 7d. d r ckAt 7341 /-,,' a- y 6 q,7 , ze WILLIAM A. LAYTON IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CAROL B. LAYTON DEFENDANT 2004-4217 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Wednesday, May 06, 2009 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Tuesday, June 09, 2009 at 9:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: _/s/ Jacqueline M. Verney, Esq. f1? 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 OF T 2009 MA -6 PN 3: 25 24 ", r WILLIAM A. LAYTON PLAINTIFF V. CAROL B. DARHOWER, FORMALLY CAROL B. LAYTON DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2004-4217 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Wednesday, May 06, 2009 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Tuesday, June 09, 2009 at 9:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ Jacqueline M. Verney, Esq___? 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 ALED-C), ?i=ICE QE THE PR(T"" "'' ?'A?Y 2069 MAY -6 PaN J• 26 Nlf _s 6- -,os DOcket Nu Keferral _ tuber: ,K: hacking: Date to Judge. Dat Referred e Of Judge -z4-40-9,- L Hearing: Hearing held? I f YES YES or esult Of hearing NO ength Of Hearing: If l\rO why was hearing not held; Please note t made `Just chaeg? theud s continua LEASE RET UR1V TO COU Hearing dates should not be subrn RT q DMIN d until a final decision is hbwm,?? uuiv 3 0 MY96) WILLIAM A. LAYTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004-4217 CIVIL ACTION - LAW CAROL B. DARHOWER, Formerly CAROL B. LAYTON, : IN CUSTODY Defendant ORDER OF COURT AND NOW, this day of , 2009, upon consideration of the attached Custody Concil' do Report, it is ordered and directed as follows: 1. A Hearing is scheduled in Court Room No. a , of the Cumberland County Court House, on the ?a day of 2009, at 1-- 34) o'clock, ? . M., at which time testimony will-be-taken. For purposes of this Hearing, the Mother shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be expected to testify at the Hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least five days prior to the Hearing date. 2. Pending further Order of Court or agreement of the parties, the prior Orders of Court dated January 6, 2006, March 22, 2006 and April 13, 2006 shall remain in full force and effect. 3. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. BY THF?O ? Edgar B. B ley, Z cc:athan C. Wolf, Esquire, counsel for Father ./Samuel L. Andes, Esquire, counsel for Father ?'Ps ,at'1.L '7 • 2 L C) P.J. a OF THE- PRCITHONTAPY 2009 JUL --2 Pli 12: 0 6 CUM iD t:.;, r r liar^?r SS!!. ,;I WILLIAM A. LAYTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004-4217 CIVIL ACTION - LAW CAROL B. DARHOWER, Formerly CAROL B. LAYTON, : IN CUSTODY Defendant PRIOR JUDGE: Edgar B. Bayley, P.J. 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. Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Rachel Grace Layton February 18, 2001 Mother 2. A Conciliation Conference was held June 29, 2009 with the following individuals in attendance: The Father, William A. Layton, with his counsel, Nathan C. Wolf, Esquire, and the Mother, Carol B. Darhower, formerly Carol B. Layton, with her counsel, Samuel J. Andes, Esquire. 3. The Honorable President Judge Edgar B. Bayley previously entered Orders of Court dated January 6, 2006, March 22, 2006 and April 13, 2006 providing for shared legal custody, Mother having primary physical custody, Father having periods partial physical custody 6 overnights out of 14. The April 13, 2006 Order of Court, agreed to by the parents at a conciliation conference, provided for the child to attend Bellaire School within the Carlisle School District if the district approved the request. At that time both parties resided within the Carlisle School District, but the child would have attended Crestview School as it was the school designated for Mother's residence. Mother recently moved to the South Middleton School District and believes since she has primary physical custody the child would attend school in the new district. She has filed a Petition for Authorization to Change Schools. Father has filed a Petition for Modification asking for shared physical custody so that the child could continue attending Bellaire School without paying tuition. 4. Father's position on custody is as follows: Father seeks shared legal and shared physical custody, (one more overnight in a two week period.). Father asserts that the child has attended Bellaire School for 3 years, has made friends there and participates in extracurricular activities with her friends from Bellaire School. 5. Mother's position on custody is as follows: Mother seeks to maintain the custody schedule but seeks to enroll the child in South Middleton Schools believing the school system is better than Carlisle. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing and maintaining the status quo. It is expected that the Hearing will require one-half day. Date a9 cq line M. Verney, Esquire Custody Conciliator FIIFG-Cl OF j!'E F, ;tip" .'"'' ` OTARY 2099 JUL -2 P11(2: G 6 ni ,?a ! l?7 ('d I I'S WILLIAM A. LAYTON, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CAROL B. LAYTON, DEFENDANT 04-4217 CIVIL TERM h ORDER OF COURT AND NOW, this _day of September, 2009, following a hearing on the merits, and there being three existing custody orders involving the parties' daughter, Rachel G. Layton, born February 18, 2001, IT IS ORDERED: (1) The petition of Carol B. Layton to change the school district in which Rachel attends school, IS GRANTED. (2) The order of April 13, 2006, is vacated. (3) The petition of William A. Layton for shared physical custody of Rachel, to change his alternating Tuesday evening visit to a full period of overnight custody, and for Rachel to remain in the Carlisle School District, IS DENIED. However, Paragraph 4(b) of the order of January 6, 2006, is deleted and replaced with the following: The first Tuesday from 3:00 p.m. until 8:15 p.m.' By the Edgar B. Bayley, J. ? Nathan C. Wolf, Esquire For William A. Layton ? Samuel Andes, Esquire For Carol B. Layton :sal (26 *cs m,s.L O ' The third order of March 22, 2006, is not affected by this change. FILED-Di ?#'-i'CE OF THE f IRTI}-n.?)TARY 2009 SEP _3 PIN 1 25 NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 WOLF & WOLF 10 WEST HIGH STREET CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFF WILLIAM A. LAYTON, Plaintiff V. CAROL B. LAYTON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 2004-4217 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY MOTION FOR RECONSIDERATION AND NOW COMES the plaintiff, William A. Layton, by and through his counsel, Nathan C. Wolf, Esquire, and presents this application for reconsideration, pursuant to Rule 1701(b) (3), Rules of Appellate Procedure, of the September 3, 2009, Order, representing as follows: Plaintiff is William Layton, an adult individual residing at 7 Ascot Lane, Carlisle, Cumberland County, Pennsylvania 17013. (hereinafter referred to as "Father") 2. Defendant is Carol B. Darhower (formerly Carol Layton), an adult individual residing at 4 Matthew Court, Carlisle (South Middleton Township), Cumberland County Pennsylvania, 17015. (hereinafter referred to as "Mother") 3. The parties are the natural parents of one minor child, namely, Rachel Grace Layton, age 8, born February 18, 2001. 4. The parties share legal custody, and Defendant has primary physical custody, pursuant to an Order dated January 6, 2006, and March 22, 2006. The parties were also subject to an Order of Court entered by agreement, dated April 13, 2006, directing that the child would attend Bellaire Elementary School in the Carlisle School District if the district could accommodate the request pending further Order of Court. 6. The child attended Bellaire Elementary School for kindergarten, first grade and second grade. 7. The only distinction between custodial periods per the scheduled Order was from 7:30 p.m. on Tuesday night until Wednesday morning every other week. On other words out of every 14 overnights, Father had 6 of those overnights plus one evening, while Mother had 8 of those overnights). 8. Despite Mother's move to South Middleton Township in November 2008, the child remained in the Carlisle School District through the end of the school year, and upon learning Mother intended to enroll the child in the South Middleton School District for 2009-2010, Father sought to work out an agreement whereby the child could remain in the Carlisle School District so that his daily contact with the child would not be reduced and to permit the child to continue to attend school with the classmates with whom she had spent the prior three years. 9. Mother remarried in January 2009, and her move was necessitated, in large part, by the perceived need to allow her new stepdaughter to remain in the South Middleton School District for her senior year of high school. 10. Father, though counsel, attempted to negotiate such a result without success prior to filing any motions with the Court. 11. Nevertheless, on May 1, 2009, Plaintiff filed a Petition for Modification with this Honorable Court seeking a change to shared physical custody, so that the child could remain in the district, remain in her activities and to result in the least level of disruption in the child's life. 12. On May 4, 2009, Defendant filed a petition with the Court seeking permission to change the child's school district from Carlisle School District to South Middleton School District citing the fact that tuition would be charged by Carlisle School District if the child could even continue to go to school there. 13. On September 2, 2009, the Court heard testimony from the parties only on their respective petitions. 14. On September 3, 2009, the Court issued an Order granting Mother's petition to change school districts, denying Father's petition to modify seeking shared physical custody (but extended Father's alternating Tuesday visitation from 7:30 p.m. until 8:15 p.m.), and vacating the Order of April 13, 2006. 15. Father had identified multiple witnesses from whom he sought to elicit testimony at the time of trial but, because the Court indicated that such testimony was not necessary to its decision, was not offered. 16. The Court declined to take testimony from the child in camera. 17. Father sought to offer the telephone testimony of Deborah Salem, who had met with the child for more than two hours total and had gained valuable insights into the dynamic between the child and the respective parents, and it is believed that such testimony would have significantly aided the Court in its evaluation of the best interests of the child. 18. It is likewise important to the Court's evaluation of the instant motion, that the result of the ruling will limit Father's ability to maintain the child in her activities because he does not have sufficient time to ensure the child can complete her homework and eat dinner before attending such activities. 19. Equally important is the fact that because of the South Middleton School District's structure, the child will only be at Rice Elementary for one year (2009-2010) before attending Iron Forge school for fourth and fifth grades beginning in the fall of 2010. 20. By contrast, if the child was permitted to remain at Bellaire Elementary, she would attend that school through the end of fifth grade. 21. Respectfully, Father believes that the Court erred in its consideration of the instant matter in excluding the testimony of Deborah Salem, and in narrowing the scope of the testimony it heard to the parties. 22. Father respectfully submits that the Court likewise erred in excluding the in camera testimony of the child, pursuant to 23 Pa.C.S. §5303(a)(1) relating to the legislative mandate that "the court shall consider the preference of the child as well as any other factor which legitimately impacts the child's physical, intellectual, and emotional well-being." (emphasis added) 23. Father respectfully submits that the Court's inquiry is governed by the decision in Moore P. Moore, wherein the Supreme Court of Pennsylvania stated: "Mn the context of a custody case a trial court must ensure that as full and complete a record as possible is created when a decision as important as the welfare of a child is at issue. 634 A.2d 163, 167 (1993) (citations omitted). In that case, the Supreme Court upheld the decision of the trial court (which had been reversed by the Superior Court) to grant reconsideration, to hold a supplemental hearing, and to reverse its initial order in custody. Id. 24. Father seeks reconsideration of the Court's Order of September 3, 2009, pursuant to the authority granted by virtue of Rule 1701(b)(3)(1) which permits the grant of reconsideration by the trial court within the time permitted for filing an appeal. 25. Father believes evidence was presented at the hearing on September 2, 2009 which should have resulted in favor of granting his petition to modify custody and denying Mother petition for permission to change schools. 26. However, because Father had sought to present additional testimony which was excluded, the instant motion is being sought to request that the Court re-examine the decision reached, particularly in light of the mandate to create as full and complete of a record as possible. 27. Father believes and therefore avers that granting the reconsideration of the Order issued September 3, 2009 would serve the best interests and permanent welfare of the child. 28. Concurrence in the instant motion was sought from counsel for Mother and Attorney Andes indicated that does not concur in the instant motion. 29. The Honorable Edgar B. Bayley is the prior judge assigned to this matter. WHEREFORE, for the reasons set forth herein, plaintiff, William A. Layton, respectfully requests that the Court enter an order granting reconsideration of its Order denying Father's request for shared physical custody and granting Mother's request to move the child to South Middleton School District, and to grant a brief hearing on the same to allow for the presentation of additional testimony pertaining to those issues, along with any additional relief that the Court may deem appropriate and just. Respectfully submitted, WOLF & WOLF, Attorneys at Law Date: September 4- 2009 BY: NA C. WOLF, ESQUIRE 10 WE HIGH STREET CARLISLE, PA 17013 (717) 241-4436 SUPREME COURT ID NO. 87380 ATTORNEY FOR PLAINTIFF VERIFICATION I do hereby verify that I am the plaintiff in the foregoing action and that the facts set forth in this motion are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. September , 2009 L 4?? A- William A. Layton NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 WOLF & WOLF 10 WEST HIGH STREET CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFF WILLIAM A. LAYTON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. DOCKET NO. 2004-4217 CIVIL TERM CAROL B. LAYTON, CIVIL ACTION - LAW Defendant IN CUSTODY CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, attorney for Plaintiff, do hereby certify that this date, I have served a copy of the foregoing Motion for Reconsideration upon the following person, by United States Mail, addressed as follows: Samuel L. Andes, Esquire 525 North Twelfth Street P.O.168 Lemoyne, PA 17043 Respectfully s WOLF & WO Date: September J-Y , 2009 By: Nathan C. Wolf, Esquire 10 West High Street Carlisle, PA 17013 (717) 241-4436 Supreme Court I.D. No. 87380 Attorney for Plaintiff OF THE P`L Y 23 9 SE' 15 F it F.: WILLIAM A. LAYTON, PLAINTIFF V. CAROL B. LAYTON, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-4217 CIVIL TERM ORDER OF COURT AND NOW, this ?Z-? day of September, 2009, the within motion for reconsideration IS DENIED without a hearing. -Nathan C. Wolf, Esquire For William A. Layton -Samuel Andes, Esquire For Carol B. Layton sal R LE' i? IE OF THE C)TAR.Y 2009 SEP 22 All 8: is WILLIAM A. LAYTON, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CAROL B. LAYTON, DEFENDANT 04-4217 CIVIL TERM IN RE: CUSTODY (OPINION SUPPORT OF ORDER OF SEPTEMBER 3.2009) Bayley, J., September 24, 2009:-- William Layton and Carol Darhower, who are divorced, are the parents of Rachel Layton, age 8, born February 18, 2001. On September 3, 2009, following a hearing on the merits, the following order was entered: (1) The petition of Carol B. Layton to change the school district in which Rachel attends school, IS GRANTED. (2) The order of April 13, 2006, is vacated. (3) The petition of William A. Layton for shared physical custody of Rachel, to change his alternating Tuesday evening visit to a full period of overnight custody, and for Rachel to remain in the Carlisle School District, IS DENIED. However, Paragraph 4(b) of the order of January 6, 2006, is deleted and replaced with,the following: The first Tuesday from 3:00 p.m. until 8:15 p.m.' The third order of March 22, 2006, is not affected by this change. There are three prior operative custody orders for Rachel entered on January 6, March 22 and April 13, 2006.' The effect of these orders is that the parents share legal custody of Rachel; the mother has primary physical custody; and the father has her overnight for six out of every fourteen days. The order of January 6, 2006, provides: ' There was an earlier custody order entered on October 5, 2005, following a hearing on the merits. 04-4217 CIVIL TERM (1) All prior custody orders are vacated and replaced with this order. (2) William A. Layton and Carol B. Layton shall have shared legal custody of their daughter Rachel G. Layton, born February 18, 2001. (3) The mother shall have primary physical custody of Rachel. (4) The father shall have temporary physical custody of Rachel during fourteen day cycles as follows: (a) Starting on the first Thursday at 3:00 p.m. until Monday morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver her to school. On the Friday, he shall deliver Rachel to the mother's home before he goes to work, after which the mother shall deliver Rachel to school. (b) The first Tuesday from 3:00 p.m. until 7:30 p.m. (c) The second Thursday from 3:00 p.m. until the next morning when he shall deliver Rachel to her mother's home before he goes to work, after which the other shall deliver Rachel to school. (d) The second Tuesday from 3:00 p.m. until' Wednesday morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver Rachel to school. (e) On each school day, from after school after which he shall deliver Rachel to the mother's home when she returns from work. (5) The following holidays shall alternate: President's Day, Memorial Day, July 4th, Labor Day and Columbus Day. Each holiday shall commence on the evening before the holiday and end on the evening of the holiday. (6) At Thanksgiving, Block A shall be from Wednesday before Thanksgiving at 4:00 p.m. until Thursday at 5:00 p.m. Block B shall be from Thursday at 5:00 p.m. to Friday at 5:00 p.m. Block C shall be from Friday at 5:00 p.m. until Monday. The mother shall have Blocks A and C in even numbered years and Block B in odd numbered years. The father shall have Blocks A and C in odd numbered years and Block B in even numbered years. (7) At Christmas, Block A shall be from December 23 at 5:00 p.m. to Christmas Day at 12:00 noon. Block B shall be from Christmas Day at 12:00 noon to December 27 at 6:00 a.m. Mother shall have Block A in even numbered years and Block B in odd numbered years. The father shall have Block A in odd numbered years and Block B in even numbered years. (8) Each parent shall have Rachel for two non-consecutive weeks (seven consecutive days) in the summer provided they give the other parent thirty days notice. The parents' alternating weekends shall be included in their seven day periods. The amending order of March 22, 2006, provides: (A) Paragraph (4)(a), (c) and (d) providing that the father "shall deliver Rachel to her mother's home before he goes to work," shall mean that these -2- 04-4217 CIVIL TERM deliveries of Rachel to the mother's home shall be at 5:50 a.m. (B) Paragraph 4(e) is vacated and replaced with the following: On each school day, from after school after which he shall deliver Rachel to her mother's place of employment at Carlisle Syntec at 5:05 p.m., and he shall not feed Rachel dinner on these days. (C) The last sentence in paragraph 5 is deleted and replaced with the following: Each holiday shall commence at 6:00 p.m. on the evening before the holiday and end at 6:00 p.m. on the evening of the holiday. (D) All other provisions in the order of January 6, 2006, shall remain in full force and effect. In summary, the mother has Rachel every Monday and Wednesday night and every other Thursday, Friday, Saturday and Sunday night. The father has her every other Friday, Saturday, Sunday and Thursday night, and every other Tuesday night. On the Tuesday of the week he does not have her that night he has her from 3:30 p.m. until 7:30 p.m. The third order of April 13, 2006, provides: 1. The prior Orders of Court dated January 6, 2006 and March 22, 2006 shall remain in full force and effect with the following modification. 2. The parties agree that the child will attend Bellaire Elementary School if Carlisle School District approves the request. 3. This Order has been entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. This order was entered by agreement when Rachel was starting school and the parents were both living in the Carlisle School District. It was a compromise because the father wanted Rachel to attend a private Christian school while the mother wanted her to attend public school. Bellaire Elementary School was not the school to which Rachel would normally have been assigned from the mother's residence. The Carlisle School District agreed to this arrangement. The mother remarried on January 31, 2009. She has moved 5.9 miles from a -3- 04-4217 CIVIL TERM home in the Carlisle School District to a home with her new husband in the adjacent South Middleton School District. Before the start of the 2009-2010 school year, the father filed a petition seeking shared physical custody of Rachel so she could continue to attend Bellaire Elementary School in the Carlisle School District. The mother then filed a petition seeking an order authorizing her to move Rachel to Rice Elementary School in the South Middleton School District. At the hearing on these cross-petitions, the father represented that it was his understanding that even though the mother had primary physical custody of Rachel, Rachel could still attend Bellaire. The court questioned whether that was possible and indicated it needed evidence to that effect or a stipulation. After a recess during which counsel contacted an administrative official of the Carlisle School District and the School District's solicitor, they agreed that Rachel could not attend the Bellaire School if she was in the primary custody of her mother who lived in the South Middleton School District. The father did not want Rachel to change from Bellaire Elementary where she has done well, was involved in numerous activities, and where she had a lot of friends. He also maintains that it would not be as convenient for him to exercise his periods of temporary physical custody if she went to Rice Elementary School. There was no dispute, however, as to the good quality of parenting provided by both the mother and father. Both agreed that Rachel is a normal, healthy, happy child; has done well in school, and is involved in numerous activities which they have both supported. Both of them have been very active in Rachel's life. They have both made the effort to make the custody orders work to Rachel's advantage. Where a parent has primary physical custody of a child going to public school that child -4- 04-4217 CIVIL TERM legally goes to a school in the school district where that parent lives. In the present case, the only reason the mother had to seek permission to move Rachel to a school in the South Middleton School District was the unique way in which the consent order of April 13, 2006, was written. It provided that, absent mutual consent, Rachel would attend the Bellaire Elementary School. Based on all of the evidence, we find that there is no basis for changing mother's primary physical custody simply as a means for an eight-year-old third grader, who has no special needs, to continue going to a school where she started her education.2 The father works weekdays for West Pennsboro Township. During the school year his hours are 6:30 a.m. to 3:00 p.m., and during the summer they are from 6:00 a.m. to 2:30 p.m.3 His place of work is 6 miles from his home. On those days when he would pick up Rachel from Rice Elementary School he would drive 12.1 miles from his place of work to Rice and then 7.5 miles home. The Bellaire School is only 2.5 miles from his home. That additional driving time is not a significant impact when he has her overnight. The extent to which the additional travel time impacts on his quality time with Rachel on the alternate Tuesdays when he has her at 3:00 o'clock until 7:30 p.m., was mitigated by our order of September 3, 2009, extending the return time on those Tuesdays to 8:15 p.m. 2 We note that the "availability" of educational facilities is a factor to be considered in a custody case. Commonwealth ex rel. Budzowski v. Budzowski, 278 Pa. Super. 216 (1980). In Budzowski, the court determined that a child's needs would be best met in a special education class in which the mother refused to enroll him despite a recommendation by teachers and counselors. The Superior Court affirmed the trial court's placement of the child in the custody of his father who supported his being enrolled in the special class. 3 The mother works weekday for Carlisle Syntec from 8:00 a.m. to 5:00 p.m. -5- 04-4217 CIVIL TERM We will also address the issues raised in father's petition for reconsideration which was filed on September 15, 2009, and denied without a hearing on September 22, 2009. The father sought another hearing to allow presentation of additional evidence. He averred that the court erred by not taking the in-camera testimony of Rachel. He cites 23 Pa.C.S. Section 5303(a)(1), which provides: In making an order for custody or partial custody, the court shall consider the preference of the child as well as any other factor which legitimately impacts the child's physical, intellectual and emotional well-being. In Bovard v. Baker, 775 A.2d 835 (Pa. Super. 2001), the issue involved custody of children ages 16, 14, 12 and 10. The Superior Court stated: As this Court has stated: "It is important to note that while the express wishes of a child are not controlling in a custody decision, those wishes do constitute an important factor that must be carefully considered in determining the child's best interests" Myers v. DiDomenico, 441 Pa.Super. 341, 657 A.2d 956, 958 (1995) (citing McMillen v. McMillen, 529 Pa. 198, 203, 602 A.2d 845, 847 (1992)) (emphasis added); Cardamone v. Elshoff, 442 Pa.Super. 263, 659 A.2d 575, 583 (1995) (same). While a child's preference for one parent must be based on good reasons and the child's maturity and intelligence must be taken into account, Myers, 657 A.2d at 958, our Supreme Court concluded in McMillen v. McMillen, supra, that, where the households of both parents were equally suitable, a child's preference to live with one parent "could not but tip the evidentiary scale in favor" of that parent. McMillen, 529 Pa. at 204, 602 A.2d at 848. In that regard, there are indications that some of the children's custodial preferences might have been at odds with the court's order. While Rachel and Father have had a fractured relationship in recent years, and while Brittany had in the past desired to live with Father, at oral argument, counsel for the parties conceded that Brittany and Rachel were refusing to abide by the terms of the trial court's custody order that requires them to reside with Father. Given the trial court's conclusion in this case that both parents were equally loving and capable, we conclude that the custodial preferences of the children may "tip the evidentiary scale" in favor of one parent or the other. We therefore hold that the learned trial court abused its discretion by concluding that interviews with or testimony from the children was unnecessary. -6- 04-4217 CIVIL TERM In the present case, we repeat, absent an adequate availability issue, a child in the primary custody of a parent that goes to public school legally goes to a school in that parent's school district. Even if Rachel, who is only age 8, who has no special needs, and is starting third grade, preferred not to leave Bellaire Elementary School, that could not tip the evidentiary scale in favor of changing the custodial relationship between her parents. Therefore, in contrast to the facts in Bovard, given Rachel's young age and the limited issue presented to the court where the custodial arrangement was secondary to the real issue which was where she would go to school, and in contrast to "making an order for custody or partial custody" as envisioned in 23 Pa.C.S. Section 5303(a)(1), it was not error to not take the in-camera testimony of Rachel. The father averred that it was error in not taking the testimony of Deborah Salem. Deborah Salem is a licensed professional counselor. The father made an offer that she had interviewed Rachel for two hours "to ascertain the answer to a question of whether or not either party was placing any undue influence on the child," and to her "observations as to really what has been going on in the household." The mother's attorney represented that Salem had gone beyond her assignment - that "what she did essentially was interview the child and talk about what she thought the resolution of this matter today would be." Since we would not take the testimony of Rachel, any issue as to whether either party was placing any undue influence on her was not relevant. Salem is a counselor. It was not represented that she did a full custody evaluation. There was no basis for taking her testimony as to her "observations as to what is going on in the household." Without doing a complete custody evaluation there is no basis for an opinion to be solicited from a counselor as to what the -7- 04-4217 CIVIL TERM resolution of the limited issue before the court should be. The father averred that the court erred in excluding other testimony that he sought to present. This allegation is not correct. The court never excluded any testimony other than from Rachel and Deborah Salem. ",Jn,, 2 (Date) ? Nathan C. Wolf, Esquire /For William A. Layton ? Samuel Andes, Esquire For Carol B. Layton :sal l.f? t EIS vr1,'a..? ?srl? P 4/aLI/O? _$_ --to- __Y'_', V. FLED-t, ; iCr CF THE' ' '' TAR' 20L, i SLr? Cat Ali ? Jl) i WILLIAM A. LAYTON, ) Plaintiff ) vs. ) CAROL B. LAYTON, ) Defendant ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4217 CIVIL TERM IN CUSTODY DEFENDANT'S PETITION FOR EMERGENCY RELIEF AND NOW comes the above-named Defendant by her attorney, Samuel L. Andes, and petitions the court for emergency relief in the above matter, based upon the following: 1. The Petitioner herein is the Defendant. The Respondent herein is the Plaintiff. 2. Plaintiff and Defendant are the parents of one minor child, Rachel G. Layton, now age 8, born 18 February 2001. 3. Pursuant to the order of custody now in effect, which is the order dated 6 January 2006, Plaintiff Father is to have physical custody of the child for the weekend of 17 October 2009. 4. Child has a strong interest in and fascination with Celtic Thunder an Irish dance troup and has had such an interest for along time. 5. Defendant Mother has arranged to take the child to Baltimore, Maryland on Saturday, 17 October 2009, for a performance by the Celtic Thunder. To accommodate that trip, she would like to have custody of the child that day and night. 6. Mother contacted Father in late September to request that she have custody of the child that day. Mother proposed that she exchange that weekend for the following weekend fo custody so that Father would not loose any time with the child. Father refused. 7. The child is aware of the tickets to the performance and is very upset by the potential that she may not be able to attend with Mother. 8. The best interest of the child will be served by exchanging Father's weekend of custody now scheduled for 17 October 2009 for the following week so the child can attend the Celtic Thunder performance in Baltimore on 17 October 2009. 9. Prior matters in this case have been assigned to and heard by the Honorable Edgar B. Bayley. 10. Plaintiff/Father does not concur in the relief requested in this Petition. WHEREFORE, Defendant respectfully requests this court to enter a temporary order exchanging periods of custody between the parents so that Mother may have the child for the weekend fo 17 October 2009 and Father will have custody the following weekend. Samuel L. Andes Attorney for Defendant Supreme Court ID # 17225 525 North 12thStreet P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 i I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: ` ' y r r L?A CAROL B. DARN WER FILED- ?.? 71 rcTrIF TA - .Y Z20 99 OC I 13 Ain 9: #ARIO & // 7) 7 t a-3/ f13 WILLIAM A. LAYTON, Plaintiff vs. CAROL B. LAYTON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4217 CIVIL TERM IN CUSTODY DEFENDANT'S PETITION FOR EMERGENCY RELIEF AND NOW comes the above-named Defendant by her attorney, Samuel L. Andes, and petitions the court for emergency relief in the above matter, based upon the following: 1. The Petitioner herein is the Defendant. The Respondent herein is the Plaintiff. 2. Plaintiff and Defendant are the parents of one minor child, Rachel G. Layton, now age 8, born 18 February 2001. 3. By an order dated 6 January 2006, this court awarded primary physical custody of the child to Mother/Defendant and set a scheduled of temporary physical custody of the Father/Plaintiff. 4. By an order dated 3 September 2009, a copy of which is order is attached hereto, the court granted the request of Mother to change the school district in which Rachel attends school, over the objection of Father. 5. Subsequently, on 24 September 2009, this court issued an order in support of its decision of 3 September 2009. A copy of that opinion is attached hereto and marked as SCHEDULE A. 6. Father is angry and disturbed by the decision of this court and the enrollment of Rachel in the South Middleton Schools. 7. Father has attempted to sabotage and disrupt Rachel's success in the South Middleton School District. His actions in that regard include: A. For approximately a week after this court's initial order, he declined to assist Rachel in completing her school work assignments, failed to pass the assignments onto Mother so she could assist the child with them, and actually destroyed homework assignments so they would not be done. B. He destroyed communications from the school which were intended to be shared with both parents and, later, destroyed Rachel's backpack, apparently in an effort to prevent Mother from receiving information important to the child's performance in school. C. He has told the child's classroom teacher that the child is unhappy, has no friends, and wants to return to school in the Carlisle School District. Those statements are not true or accurate. D. He has met with the child's school counselor and falsely reported to that counselor that the child is "struggling," "unhappy" and otherwise doing poorly in school. All of these actions are, in Mother's opinion, represent attempts to disrupt the child's success in the South Middleton School District in a misguided effort to renew his argument that the child should return to school in the Carlisle School District. 8. Father has taken direct action to attempt to disrupt the child's transition to her new home and school. He has told the child that she is not to participate in cheerleading activities in which she is enrolled and has told the child recently that, if she participates in the cheerleading activities, he will withdraw her from her gymnastic class and her brownie troup, in which she has been involved for more than a year. 9. Father's conduct in this matter demonstrates a disregard for the best interest and welfare of the child and an attempt to circumvent this court's order. 10. Prior matters in this case have been assigned to and heard by the Honorable Edgar B. Bayley. 11. Plaintiff/Father does not concur in the relief requested in this Petition. WHEREFORE, Defendant prays this court to take the following actions: A. Admonish Father to discontinue his disruptive conduct; B. Eliminate Father's periods of temporary custody in the weekday afternoons during the school year; and C. Such other action as the court deems necessary to protect the best interest of the child. &?? ) VX? Sa 1 L. An es Attorney for Defendant Supreme Court ID # 17225 525 North 12' Street P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: -CLXC,? L. CAROL B. DARHOWER Schedule A WILLIAM A. LAYTON, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CAROL B. LAYTON, DEFENDANT 04-4217 CIVIL TERM IN RE: CUSTODY (OPINION SUPPORT OF ORDER OF SEPTEMBER 3, 2009) Bayley, J., September 24, 2009:-- William Layton and Carol Darhower, who are divorced, are the parents of Rachel Layton, age 8, born February 18, 2001. On September 3, 2009, following a hearing on the merits, the following order was entered: (1) The petition of Carol B. Layton to change the school district in which Rachel attends school, IS GRANTED. (2) The order of April 13, 2006, is vacated. (3) The petition of William A. Layton for shared physical custody of Rachel, to change his alternating Tuesday evening visit to a full period of overnight custody, and for Rachel to remain in the Carlisle School District, IS DENIED. However, Paragraph 4(b) of the order of January 6, 2006, is deleted and replaced with,the following: The first Tuesday from 3:00 p.m. until 8:15 p.m.' The third order of March 22, 2006, is not affected by this change. There are three prior operative custody orders for Rachel entered on January 6, March 22 and April 13, 2006.' The effect of these orders is that the parents share legal custody of Rachel; the mother has primary physical custody; and the father has her overnight for six out of every fourteen days. The order of January 6, 2006, provides: ' There was an earlier custody order entered on October 5, 2005, following a hearing on the merits. 04-4217 CIVIL TERM (1) All prior custody orders are vacated and replaced with this order. (2) William A. Layton and Carol B. Layton shall have shared legal custody of their daughter Rachel G. Layton, born February 18, 2001. (3) The mother shall have primary physical custody of Rachel. (4) The father shall have temporary physical custody of Rachel during fourteen day cycles as follows: (a) Starting on the first Thursday at 3:00 p.m. until Monday morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver her to school. On the Friday, he shall deliver Rachel to the mother's home before he goes to work, after which the mother shall deliver Rachel to school. (b) The first Tuesday from 3:00 p.m. until 7:30 p.m. (c) The second Thursday from 3:00 p.m. until the next morning when he shall deliver Rachel to her mother's. home before he goes to work, after which the other shall deliver Rachel to school. (d) The second Tuesday from 3:00 p.m. until Wednesday morning when he shall deliver Rachel to her mother's home before he goes to work, after which the mother shall deliver Rachel to school. (e) On each school day, from after school after which he shall deliver Rachel to the mother's home when she returns from work. (5) The following holidays shall alternate: President's Day, Memorial Day, July 4th, Labor Day and Columbus Day. Each holiday shall commence on the evening before the holiday and end on the evening of the holiday. (6) At Thanksgiving, Block A shall be from Wednesday before Thanksgiving at 4:00 p.m. until Thursday at 5:00 p.m. Block B shall be from Thursday at 5:00 p.m. to Friday at 5:00 p.m. Block C shall be from Friday at 5:00 p.m. until Monday. The mother shall have Blocks A and C in even numbered years and Block B in odd numbered years. The father shall have Blocks A and C in odd numbered years and Block B in even numbered years. (7) At Christmas, Block A shall be from December 23 at 5:00 p.m. to Christmas Day at 12:00 noon. Block B shall be from Christmas Day at 12:00 noon to December 27 at 6:00 a.m. Mother shall have Block A in even numbered years and Block B in odd numbered years. The father shall have Block A in odd numbered years and Block B in even numbered years. (8) Each parent shall have Rachel for two non-consecutive weeks (seven consecutive days) in the summer provided they give the other parent thirty days notice. The parents' alternating weekends shall be included in their seven day periods. The amending order of March 22, 2006, provides: (A) Paragraph (4)(a), (c) and (d) providing that the father "shall deliver Rachel to her mother's home before he goes to work," shall mean that these -2- 04-4217 CIVIL TERM deliveries of Rachel to the mother's home shall be at 5:50 a.m. (B) Paragraph 4(e) is vacated and replaced with the following: On each school day, from after school after which he shall deliver Rachel to her mother's place of employment at Carlisle Syntec at 5:05 p.m., and he shall not feed Rachel dinner on these days. (C) The last sentence in paragraph 5 is deleted and replaced with the following: Each holiday shall commence at 6:00 p.m. on the evening before the holiday and end at 6:00 p.m. on the evening of the holiday. (D) All other provisions in the order of January 6, 2006, shall remain in full force and effect. In summary, the mother has Rachel every Monday and Wednesday night and every other Thursday, Friday, Saturday and Sunday night. The father has her every other Friday, Saturday, Sunday and Thursday night, and every other Tuesday night. On the Tuesday of the week he does not have her that night he has her from 3:30 p.m. until 7:30 p.m. The third order of April 13, 2006, provides: 1. The prior Orders of Court dated January 6, 2006 and March 22, 2006 shall remain in full force and effect with the following modification. 2. The parties agree that the child will attend Bellaire Elementary School if Carlisle School District approves the request. 3. This Order has been entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. This order was entered by agreement when Rachel was starting school and the parents were both living in the Carlisle School District. It was a compromise because the father wanted Rachel to attend a private Christian school while the mother wanted her to attend public school. Bellaire Elementary School was not the school to which Rachel would normally have been assigned from the mother's residence. The Carlisle School District agreed to this arrangement. The mother remarried on January 31, 2009. She has moved 5.9 miles from a -3- 04-4217 CIVIL TERM home in the Carlisle School District to a home with her new husband in the adjacent South Middleton School District. Before the start of the 2009-2010 school year, the father filed a petition seeking shared physical custody of Rachel so she could continue to attend Bellaire Elementary School in the Carlisle School District. The mother then filed a petition seeking an order authorizing her to move Rachel to Rice Elementary School in the South Middleton School District. At the hearing on these cross-petitions, the father represented that it was his understanding that even though the mother had primary physical custody of Rachel, Rachel could still attend Bellaire. The court questioned whether that was possible and indicated it needed evidence to that effect or a stipulation. After a recess during which counsel contacted an administrative official of the Carlisle School District and the School District's solicitor, they agreed that Rachel could not attend the Bellaire School if she was in the primary custody of her mother who lived in the South Middleton School District. The father did not want Rachel to change from Bellaire Elementary where she has done well, was involved in numerous activities, and where she had a lot of friends. He also maintains that it would not be as convenient for him to exercise his periods of temporary physical custody if she went to Rice Elementary School. There was no dispute, however, as to the good quality of parenting provided by both the mother and father. Both agreed that Rachel is a normal, healthy, happy child; has done well in school, and is involved in numerous activities which they have both supported. Both of them have been very active in Rachel's life. They have both made the effort to make the custody orders work to Rachel's advantage. Where a parent has primary physical custody of a child going to public school that child -4- 04-4217 CIVIL TERM legally goes to a school in the school district where that parent lives. In the present case, the only reason the mother had to seek permission to move Rachel to a school in the South Middleton School District was the unique way in which the consent order of April 13, 2006, was written. It provided that, absent mutual consent, Rachel would attend the Bellaire Elementary School. Based on all of the evidence, we find that there is no basis for changing mother's primary physical custody simply as a means for an eight-year-old third grader, who has no special needs, to continue going to a school where she started her education.' The father works weekdays for West Pennsboro Township. During the school year his hours are 6:30 a.m. to 3:00 p.m., and during the summer they are from 6:00 a.m. to 2:30 p.m.' His place of work is 6 miles from his home. On those days when he would pick up Rachel from Rice Elementary School he would drive 12.1 miles from his place of work to Rice and then 7.5 miles home. The Bellaire School is only 2.5 miles from his home. That additional driving time is not a significant impact when he has her overnight. The extent to which the additional travel time impacts on his quality time with Rachel on the alternate Tuesdays when he has her at 3:00 o'clock until 7:30 p.m., was mitigated by our order of September 3, 2009, extending the return time on those Tuesdays to 8:15 p.m. We note that the "availability" of educational facilities is a factor to be considered in a custody case. Commonwealth ex rel. Budzowski v. Budzowski, 278 Pa. Super. 216 (1980). In Budzowski, the court determined that a child's needs would be best met in a special education class in which the mother refused to enroll him despite a recommendation by teachers and counselors. The Superior Court affirmed the trial court's placement of the child in the custody of his father who supported his being enrolled in the special class. 'The mother works weekday for Carlisle Syntec from 8:00 a.m. to 5:00 p.m. -5- 04-4217 CIVIL TERM We will also address the issues raised in father's petition for reconsideration which was filed on September 15, 2009, and denied without a hearing on September 22, 2009. The father sought another hearing to allow presentation of additional evidence. He averred that the court erred by not taking the in-camera testimony of Rachel. He cites 23 Pa.C.S. Section 5303(a)(1), which provides: In making an order for custody or partial custody, the court shall consider the preference of the child as well as any other factor which legitimately impacts the child's physical, intellectual and emotional well-being. In Bovard v. Baker, 775 A.2d 835 (Pa. Super. 2001), the issue involved custody of children ages 16, 14, 12 and 10. The Superior Court stated: As this Court has stated: "It is important to note that while the express wishes of a child are not controlling in a custody decision, those wishes do constitute an important factor that must be carefully considered in determining the child's best interests" Myers v. DiDomenico, 441 Pa.Super. 341, 657 A.2d 956, 958 (1995) (citing McMillen v. McMillen, 529 Pa. 198, 203, 602 A.2d 845, 847 (1992)) (emphasis added); Cardamone v. Elshoff, 442 Pa.Super. 263, 659 A.2d 575, 583 (1995) (same). While a child's preference for one parent must be based on good reasons and the child's maturity and intelligence must be taken into account, Myers, 657 A.2d at 958, our Supreme Court concluded in McMillen v. McMillen, supra, that, where the households of both parents were equally suitable, a child's preference to live with one parent "could not but tip the evidentiary scale in favor" of that parent. McMillen, 529 Pa. at 204, 602 A.2d at 848. In that regard, there are indications that some of the children's custodial preferences might have been at odds with the court's order. While Rachel and Father have had a fractured relationship in recent years, and while Brittany had in the past desired to live with Father, at oral argument, counsel for the parties conceded that Brittany and Rachel were refusing to abide by the terms of the trial court's custody order that requires them to reside with Father. Given the trial court's conclusion in this case that both parents were equally loving and capable, we conclude that the custodial preferences of the children may "tip the evidentiary scale" in favor of one parent or the other. We therefore hold that the learned trial court abused its discretion by concluding that interviews with or testimony from the children was unnecessary. -6- 04-4217 CIVIL TERM In the present case, we repeat, absent an adequate availability issue, a child in the primary custody of a parent that goes to public school legally goes to a school in that parent's school district. Even if Rachel, who is only age 8, who has no special needs, and is starting third grade, preferred not to leave Bellaire Elementary School, that could not tip the evidentiary scale in favor of changing the custodial relationship between her parents. Therefore, in contrast to the facts in Bovard, given Rachel's young age and the limited issue presented to the court where the custodial arrangement was secondary to the real issue which was where she would go to school, and in contrast to "making an order for custody or partial custody" as envisioned in 23 Pa.C.S. Section 5303(a)(1), it was not error to not take the in-camera testimony of Rachel. The father averred that it was error in not taking the testimony of Deborah Salem. Deborah Salem is a licensed professional counselor. The father made an offer that she had interviewed Rachel for two hours "to ascertain the answer to a question of whether or not either party was placing any undue influence on the child," and to her "observations as to really what has been going on in the household." The mother's attorney represented that Salem had gone beyond her assignment - that "what she did essentially was interview the child and talk about what she thought the resolution of this matter today would be." Since we would not take the testimony of Rachel, any issue as to whether either party was placing any undue influence on her was not relevant. Salem is a counselor. It was not represented that she did a full custody evaluation. There was no basis for taking her testimony as to her "observations as to what is going on in the household." Without doing a complete custody evaluation there is no basis for an opinion to be solicited from a counselor as to what the -7- 04-4217 CIVIL TERM resolution of the limited issue before the court should be. The father averred that the court erred in excluding other testimony that he sought to present. This allegation is not correct. The court never excluded any testimony other than from Rachel and Deborah Salem. kAX (A gw4t ?. (Date) Edgar B. Bayley, J. Nathan C. Wolf, Esquire For William A. Layton Samuel Andes, Esquire For Carol B. Layton :sal . ,d4x COPY FROM ECR1 witefea, 1 too onto ;fit my ham d QMW Pik nc T,l ?.? - v 2009 0L' c 13' T ry J I t' f WILLIAM A. LAYTON, ) Plaintiff ) VS. ) CAROL B. LAYTON, ) Defendant ) OCT 14 2009 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4217 CIVIL TERM IN CUSTODY ORDER OF COURT AND NOW this day of , 2006, upon consideration of the attached Petition, a conference is hereby scheduled in the chambers of the undersigned, for counsel, with the parties present in the courthouse, for o'clock .m. on BY THE COURT, 2009 J• Distribution: Z Nathan C. Wolf, Esquire (Attorney for Plaintiff) 10 West High Street, Carlisle, PA 17013 ? Samuel L. Andes, Esquire (Attorney for Defendant) =r/vl 525 North 12th Street, P.O. Box 168, Lemoyne, PA 17043 (9c-14e ?f, wlffq Q ,4tC1k? the day of i LED-CiFfiCIE OF THE P,`,'j; ±.<nN,)TARY 2009 OCT 15 AM W 4 7 r ` .. At WILLIAM A. LAYTON, Plaintiff vs. CAROL B. LAYTON, Defendant OCT 2006, (J7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4217 CIVIL TERM IN CUSTODY ORDER OF COURT AND NOW this day of ' r , 2006, upon consideration of the attached Petition, a conference is hereby scheduled in the chambers of the undersigned, for counsel, with the parties present in the courthouse, for o'clock M. on u}? mac' f the day of 2009. l Distribution: ? Nathan C. Wolf, Esquire (Attorney for Plaintiff) 10 West High Street, Carlisle, PA 17013 ? Samuel L. Andes, Esquire (Attorney for Defendant) 525 North 12th Street, P.O. Box 168, Lemoyne, PA 17043 O? 6 s r?rn.,11 l L WILLIAM A. LAYTON, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CAROL B. LAYTON, DEFENDANT 04-4217 CIVIL TERM ORDER OF COURT AND NOW, this 02 day of October, 2009, following a chambers conference, IT IS ORDERED that a hearing will be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania on Wednesday, November 25, 2009, at 1:30 p.m., limited to the issue of whether, on the basis of emergency relief, the current custody order should be modified to eliminate the father's periods of temporary physical custody in weekday afternoons during the school year. Pending said hearing, the father shall strictly comply with the provisions of the current order on those weekday evenings during the school year in which he picks up the child after school and returns the child to the mother at her place of employment at 5:05 p.m. Nathan C. Wolf, Esquire For William A. Layton Samuel Andes, Esquire For Carol B. Layton Edgar B. Bayley, J. it 30- 04 4- : sal ALED4JF SCE OF THEE F"3 ? ' }TAftY 2004 OCT 30 PH 3: 08 CUl,rt :' NT Y WILLIAM A. LAYTON, ) Plaintiff ) vs. ) CAROL B. LAYTON, ) Defendant ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4217 CIVIL TERM IN CUSTODY ORDER OF COURT AND NOW this -2; day of November 2009, upon the request of the Petitioner Carol B. Darhower, formally Carol B. Layton, the hearing scheduled for November 25, 2009, on Petitioner's Petition for Emergency Relief, is hereby continued generally. Distribution: Nathan C. Wolf, Esquire (Attorney for Plaintiff) 10 West High Street, Carlisle, PA 17013 Samuel L. Andes, Esquire (Attorney for Defendant) 525 North 12`" Street, P.O. Box 168, Lemoyne, PA 17043 209 NOV 23 FK 12" t 2 Gt11 p .j 4PvSYLVANMA. SAMUEL L. ANDES ATTORNEY AT LAW 525 NORTH TWELFTH STREET P. O• BOX 168 LEMOYNE, PENNSYLVANIA 17043 TELEPHONE MAILING ADDRESS: (717) 761-6361 P. O. BOX 168 LEMOYNE, PA 17043-0168 FAX (717) 781-1436 E-MAIL: La-Ande90fl 1-.om 23 November 2009 The Honorable Edgar B. Bayley Judge of the Court of Common Pleas Cumberland County Courthouse I Courthouse Square Carlisle, PA 17013 RE: William A. Layton vs. Carol R Darhower No. 2004-4217 Civil Term In Custody Dear Judge Bayley: You had scheduled a hearing in the above matter for 1:30 p.m. on Wednesday, 25 November 2009 on my client's petition for emergency relief. My client is satisfied that the urgent problems that gave rise to her petition have been resolved, at least for the present time. Accordingly, I write to request that the hearing scheduled for Wednesday be continued generally. I enclose a proposed order for you to enter to do that. I have faxed a copy of this letter to Nathan Wolf, Esquire, and I am certain we will hear from him promptly as to whether he concurs in this request or not. Thank you for your cooperation in this matter. Sincerely, Zel L. Andes amh / Enclosure cc: Nathan C. Wolf, Esquire (via fax - 241-4437) Ms. Carol B. Darhower