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HomeMy WebLinkAbout03-0800RICHARD K. BUTLER, II Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :ORPHANS' COURT DIVISION V. RICHARD K. BUTLER and ROBIN Y. BUTLER, Respondents NO. PETITION FOR GUARDIANSHIP OF A MINOR AND NOW comes Petitioner, Richard K. Butler, II, by and through his counsel, Cunningham & Chernicoff, P.C., and files the within Petition for Guardianship of a Minor as follows: 1. Petitioner, Richard K. Butler, II (the "Father") is an adult individual who resides at 409D Beaver Avenue, Enola, Cumberland County, Pennsylvania. 2. Respondents, Richard K. Butler and Robin Y. Butler (the "Grandparents") are adult individuals who currently reside at 4501 Fritchey Street, Harrisburg, Dauphin County, Pennsylvania. 3. Lisa English Butler (the "Mother") is an adult individual whose current address is not known and is not a party to this action. 4. Aaron Butler, whose date of birth is June 6, 1992, is a minor child (the "Minor Child") who currently resides with Father at 409D Beaver Avenue, Enola, Cumberland County, Pennsylvania. 5. By Order of Court (the "Custody Order") dated March 21, 1997, the Father has been granted sole legal and physical custody of the Minor Child. A true and correct copy of the Custody Order is attached hereto as Exhibit "A" and is incorporated herein by reference. 6. The Mother has had no contact with the Minor Child since 1996 and her current whereabouts is unknown. 7. The Grandparents are the paternal grandparents of the Minor Child. 8. The Father and the Grandparents desire and have agreed that Grandparents should assume full guardianship of the Minor Child effective immechaL¢ly and continuing for a period of nine (9) months. A true and correct copy of a Guardianship Agreement (the "Agreement"), executed by all parties, is attached hereto as Exhibit "B" and is incorporated herein by reference. 9. The Father and Grandparents agree that it is in the best interest of the Minor Child for the Grandparents to assume guardianship of the Minor Child. 10. The Father, through the Agreement, has appointed and nominated the Grandparents as the legal guardians of the Minor Child to take effect immediately and to continue for a period of nine (9) months. WHEREFORE, Petitioner, Richard K. Butler, II, hereby respectfully requests that this Honorable Court enter an Order, substantially in the form of the attached proposed Order, granting full guardianship of the Minor Child, Aaron Butler, effective immediately and to continue for a period of nine (9) months, to the Respondents, the Minor Child's Paternal Grandparents, Richard K. Butler and Robin Y. Butler, and any other relief that this Court deems just and proper. Respectfully, submitted, By: C/~~~.~tAM~~~.&/CHE. gNIO0]~, P.C. kq i.~I~8~'~55 gh~' ~sqm~ ]' y 2320 North Second Street P. O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 (Attorneys for Petitioner) ,2003 2 EXHIBIT "A" STATE OF SOUTH CAROLINA ) ) COUNTY OF HORRY ) Richard Kenneth .Butler, II,) ) Plaintiff, ) ) VS. ) ) Lisa English Butler, ) ) Defendant. ) IN THE FAMILY COURT 96-DR-26-1500 FINAL DECREE OF DIVORCE Hearing Judge: Hearing Date: Plaintiff's Attorney: Defendant's Attorney: Court Reporter The Honorable Lisa A. Kinon January 13, 1997 William M. Bruner None Wanda H. Hughes This is an action for divorce on the statutory grounds of one year separation without cohabitation. It came before me for final hearing on Monday, January 13, 1997. Present at the hearing were the Plaintiff, his corroborating witness and his attorney, William M. Bruner, Esquire. Although having been notified of the time and place of the hearing, the Defendant was neither present nor represented by counsel. It appears from the record that the Plaintiff initiated this action by filing the Summons and Complaint on June 4, 1996. The Defendant accepted service of copies of the Summons and Complaint on June 4, 1996 in Myrtle Beach, South Carolina as evidenced by her signature to' an acceptance of service form at CERTIFIED A TRUE AND CORRECT ~OPY URT the bottom of a copy of the Summons. The Defendant, not having filed or served an Answer as required by the Summons, is in default. This action was originally scheduled for final hearing on October 18, 1996. However, when called, it was found that notice required under the rules of this Court to the Defendant was not sufficient, thereforcthe matter was continued. Since. the children of the marriage were with the Plaintiff, and the status of the Defendant was undetermined, the Court awarded temporary custody of the children to the Plaintiff. The Court finds that notice to the Defendant of this hearing has been timely given. Prior to taking testimony, Plaintiff moved that the caption be amended to correct his name which is Richard Kenneth Butler, II. There appearing no apparent prejudicial consequences, the Court granted his motion. Further, the Court required into the possibility of reconciliation. Reconciliation was found to be impossible. Upon being sworn, Plaintiff testified that he and the Defendant were married on March 4, 1988 in Mecklenburg County, North Carolina where they resided together as husband and wife until they separated in May of 1992 and Plaintiff moved to Myrtle Beach; that two children, Matthew Page Butler, and Aaron Nickolas Butler have been born of the marriage, both presently residing with Plaintiff. -2, Plaintiff testified that he and the Defendant had not, at the time this action was filed, cohabitated as husband and wife for more than a year and that accordingly, he asks this Court to award him a divorce from the Defendant On the statutory grounds of one (1) year separation. The fact and duration of the separation was corroborated by the testimony of Carl Dixon who testified that he had known both parties for more than a ~ year preceeding the filing of this action and that, to the best of his knowledge, they had not cohabitated as husband and wife during that time; he believed that he knew them well enough to know that he would have known if they had. Plaintiff presented a Separation, Support and Property Settlement Agreement entered into between the parties on April 15, 1996 in which the parties purportedly resolved the matters of child custody, support and visitation, division of property and alimony.. Since the Defendant was not present and could not be examined as the fairness of the agreement, the Court made no finding but, except as to the custody of the children, held the remaining portion of the agreement in abeyance. Plaintiff asked that custody of the two children be continued under this Court's Temporary Order filed November 13, 1996. Based upon the testimony of the Plaintiff, his corroborating witness and the evidence presented to the Court, I find: -3- 1. That this Court has jurisdiction of the parties in the matters of divorce and custody of the children; 2. That the parties have been separated for more than ~ one (1) year and, accordingly, Plaintiff is ~entitled to a divorce from the Defendant on the statutory grounds of one (1) year separation without cohabitation; and, 3. That the award of custody of the two (2) children to the Plaintiff should be continued. Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED that Richard Kenneth Butler, II be and he is hereby awarded a Divorce, a vinculo matrimonii, from the Defendant Lisa English Butler, on the statutory grounds of one (1) year separation without cohabitation; and, It is further Ordered, Adjudged and Decreed that custody of the two (2) children, Matthew Page Butler and Aaron Nikolas Butler be continued with Plaintiff, pending further order of this Court. IT IS SO ORDERED. ~3, 1997 Conway, SC L~sa A. Kinon Presiding Judge, The Family Court 15th Judicial Circuit -4- EXHIBIT "B" ~UARDIANSHIP A~REEMENT THIS GUARDIANSHIP AGREEMENT, made and concluded this 3r~ day of October 2003, and between Richard K. Butler, II, an adult individual, of 409D Beaver Avenue, Enola, Cumberland County, Pennsylvania, hereinafter, for purposes of this Guardianship Agreement, referred to as "FATHER". -aND- Richard K. Butler and Robin Y. Butler, adult individuals, of 4501 Fritchey Street, Harrisburg, Dauphin County, Pennsylvania, hereinafter, for purpose of this Guardian and Custody Agreement, referred to as "GRANDPARENTS" WITNESSETH: WHEREAS, FATHER, Richard K. Butler, II, maintains sole legal and physical custody of Aaron Butler, hereinafter referred to as "MINOR CHILD", who was born on June 6, 1992; WHEREAS, GRANDPARENTS, Richard K. Butler and Robin Y. Butler are the paternal grandparents of the MINOR CHILD, Aaron Butler; WHEREAS, FATHER and GRANDPARENTS are desirous of providing for the guardianship of the MINOR CHILD, Aaron Butler; WHEREAS, FATHER and GRANDPARENTS desire to reduce to writing their understandings concerning ~uardianship of the MINOR CHILD, Aaron Butler; WHEREAS, it is the intent of FATHER to place the guardianship of the MINOR CHILD, Aaron Butler, with GRAi~DPARENTS for a period of nine (9) months beginning with the date of execution of this Agreement; WHEREAS, FATHER and GRANDPARENTS desire to advance the best interests of the MINOR CHILD, Aaron Butler; WHEREAS, the parties intend this Guardianship Agreement to be a full and complete Guardianship Agreement; and NOW, THEREFORE, for and in consideration of the mutual benefits to be derived by the parties and intending to be legally bound hereby, the parties hereby covenant and agree as follows: 1. GUARDIANSHIP OF MINOR CHILD: FATHER does hereby appoint and nominate Richard K. Butler and Robin Y. Butler, the GRANDPARENTS as the legal guardians of his minor child, Aaron Butler, to take effect immediately and continuing for a period of nine (9) months following the date of execution of this Agreement. Furthermore, FATHER hereby gives his consent to the guardianship and directs that any Court of competent jurisdiction who may be required to approve this guardianship acknowledge his consent to the same. 2 2. CUSTODY OF MINOR CHILD: FATHER and GRANDPARENTS agree that GRANDPARENTS shall have the legal and physical custody of the minor child, Aaron Butler to take effective immediately and continuing for nine (9) months following the date of execution of this Agreement. GRANDPARENTS, however, recognize the parental rights of FATHER. It is not the intent of this Guardianship Agreement to defect the parental rights of FATHER to his son, Aaron Butler, and recognizes that in the future FATHER shall have the right of legal and physical custody of the MINOR CHILD, Aaron Butler, at such times as the parties may hereinafter agree. 3. ENTRY OF A COURT ORDER: FATHER and GRANDPARENTS agree to the entry of a Court Order of guardianship in accordance with the terms and provisions of this Guardianship Agreement by a Court of competent jurisdiction. 4. MEDICAL RELEASES: GRANDPARENTS are given the express right to execute any and all medical releases, informed consent documents or any other related documents required to be executed on the behalf of the MINOR CHILD, Aaron Butler, for surgical or medical treatment deemed necessary by the hospital or treating physicians of the MINOR CHILD, Aaron Butler. 5. DOCUMENTS: Each party shall, at the request of the other, execute, acknowledge and deliver to the other party any documents which may be reasonably necessary to give full force and effect to this Guardianship Agreement. 6. VOLUNTARY EXECUTION AND FAIRNESS OF THE AGREEMENT: Each party acknowledges that this Guardianship Agreement has been entered into by his/her own volition, with full knowledge of the facts and full information as to their legal rights and that each believes the Guardianship Agreement to be reasonable under the circumstances and not the result of any duress or undue influence. 7. ENTIRE AGREEMENT: This Agreement contains the entire understanding of the parties and supersedes any and all prior agreements and negotiations between them and there are no representations, warranties, covenants or promises other than those expressly set forth in this Agreement. 8. SITUS: This Guardianship Agreement shall be construed and governed in accordance with the laws. of the Commonwealth of Pennsylvania. 9. INDEPENDENT SEPARATE COVENANTS: It is specifically understood and agreed by and between the parties hereto that each paragraph hereof shall be deemed to be a separate and independent covenant and agreement. If any term, condition, clause or provision of this Guardianship Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken from this Guardianship Agreement and in all other respects this Guardianship Agreement shall be valid and continue in full force, effect and operation. 10. DESCRIPTIVE HEADINGS: The descriptive headings used herein are for convenience only. They shall have no effect whatsoever in determining the rights and obligations of the parties. 11. BINDING EFFECT: Each of the parties hereto intends to be legally bound hereby, and this Guardianship Agreement shall be binding upon their heirs, personal representatives and assigns of the respective parties hereto. 12. MODIFICATION AND WAIVER: Neither this Agreement nor any-provision thereof shall be amended or modified, or deemed amended or modified, except by an agreement in writing duly subscribed and acknowledged with the same formality as this Agreement. Any waiver by either party of any provision of this Agreement, or any right or option hereunder shall not be deemed a continuing waiver, and shall not prevent or estop such party from thereafter enforcing such provision, right or option, and the failure of either party to insist in any one or more instances upon the strict performance of any of the terms or provisions of this Agreement by the other party, shall not be construed as a waiver or relinquishment for the future of any such term or provision, but the same shall continue in full force and effect. 13. APPLICABLE LAW: This Agreement shall be construed and governed in accordance with the laws of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and date first written, each adopting the seal following their signature as their own. WITTSSES: COMMONWEALTH OF PENNSYLVANIA : : COUNTY OF ~~D~F~'~ : On this, the ~ day of ~~~_~ , 2003, before me, a Notary Public, the undersighed officer, personally appeared Richard K. Butler, II, ("FATHER") known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing Guardian and Custody Agreement and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. NOTARY PUBLIC Notadal Seal Unda B. Deaven, Notary Public City Of Harrisburg, Dauphin County My Comrnisslon Expires Feb. 25, 2006 Mernl~', Pennsylv~nl~ Association of Notarle~ COMMONWEALTH OF PENNSYLVANIA : : COUNTY OF ~~F~: On this, the 3~ day of ~~~, 2003, before me, a Notary Public, the undersigned officer, personally appeared Richard K. Butler and Robin Y. Butler, ("GRANDPARENTS,,) known to me (or satisfactorily proven) to be the persons whose names are subscribed to the foregoing Guardian and Custody Agreement and acknowledged that they executed the same for the purposes therein contained. seal. IN WITNESS WHEREOF, I hereun, o set my hand and official NOTARY PUBLIC J Notadal Seal ! Linda B. Deaven, Notary Public / City Of Harrisburg, Dauphin County [ My Commission Expires Feb. 25, 20C;6_J Member, Pennsylvania Aaaoclatfon ot Notaries RICHARD K. BUTLER, II Petitioner RICHARD K. BUTLER and ROBIN Y. BUTLER, Respondents IN THE ORPHANS' COURT OF CUMBERLAND COUNTY, PENNSYLVANIA NO. VERIFICATION I, Richard K. Butler, II, verify that the statements made in the foregoing Petition for Guardianship of a Minor are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein made are subject to the penalties of 18 Pa. C.S.A. {}4904, relating to unsworn falsification to authorities. Richard K. Butler, II Date: 06'3". ~-~ ,2003 RICHAI~ K. BUTLE~ II : IN THE COURT OF COMMON PLEAS OF ~ Petit~ner : CUMBE~R~,~ COUNTY, PENNSYLVANIA ~/ :ORPHANS COURT DIVI~SION RICHA~UTLERand ii NO' ~--I~ 0...-.~ ~' ~ ROB~~f' BUTResp~nts . ORDER This ~ day of ~r_~ ,2003, upon review of the attached Petition for Guardianship of a Minor, it is hereby ORDERED AND DECREED that: Sole legal and physical custody rights of the Minor Child, Aaron Butler, are hereby modified and guardianship is transferred and entrusted to his Paternal Grandparents, Richard K. Butler and Robin Y. Butler, for a period of nine (9) months from the date of the Order. BY THE COURT: