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HomeMy WebLinkAbout01-4930CHRISTINE M. HUMMEL and TRAVIS L. MELLOTT, Petitioners CORIE ANN FITHIAN, a Minor and her parents, STEVEN FITHIAN and DEBRA FITHIAN, Respondents IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CIVIL TERM IN CUSTODY PETITION FOR CUSTODY AND NOW come the Petitioners, Christine M. Hummel and Travis L. MelioR, by their attorneys, Irwin, McKnight & Hughes, and presents the following Petition for Custody. The Petitioner, Christine M. Hummel, is an adult individual and grandmother of Corie Ann Fithian. She resides at 21 Pine Street, Carlisle, Cumberland County, Pennsylvania 17013. The Petitioner, Travis L. Mellott, is an adult individual and father of Corie Ann Fithian. He resides at 21 Pine Street, Carlisle, Cumberland County, Pennsylvania 17013. The Respondent, Corie Ann Fithian, is a minor who resides with her parents, Steven Fithian and Debra Fithian, at 208 Welsford Road, Fairless Hills, Pennsylvania 19030. The Petitioner, Travis L. Mellott and Respondent, Code L. Mellott, are the natural parents of one child, namely, Izaiah Andrew Fithian, bom April 14, 2001, age four (4) months. Petitioners are seeking joint legal custody of Izaiah Andrew Fithian. Petitioners are seeking shared physical custody of Izaiah Andrew Fithian with Petitioners and Respondent having physical custody on a week on/week off basis. o The best interest of the child requires that the court grant the petitioner's request as set forth above. WHEREFORE, petitioners respectfully seek the ent~ of an Order of Court seeking shared physical custody of the child and joint legal custody. By: Respectfully submitted, IRWIN, ~IGHT~GHES Marcus A. McKnight, Attorney for Petitioner (/ 60 West Pomfi'et Street Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: August 20, 2001 VERIFICATION The foregoing Petition for Custody is based upon information which has been gathered by counsel and us in the preparation of this action. We have read the statements made in this document and they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. ~STINE M HUMMEL TRAVIS L. MELLOTT Date: August 20, 2001 CHRISTINE M. HUMMEL AND TRAVIS L. MELLOTT PLAINTII~F V. CORIE ANN FITHIAN, A MINOR AND HER PARENTS, STEVEN AND DEBRA FITHIAN DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4930 CIVIL ACTION LAW IN CUSTODY RD R F RT AND NOW, Frida ,Au ust 31, 2001 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Hubert X.~ the conciliator, at 4th Floor, Cumberland Count Courthouse, Carlisle on Friday, October 05, 2001 at 8:30 a.m. 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: Custody Conciliator ~7ne 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. prior to any hearing or business before the court. You must IF YOU DO NOT GO TO OR TELEPHONE THE OFFICE SET Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 CHRISTINE M. HUMMEL AND TRAVIS L. : MELLOTT PLAINTIFF : V. : COPdE ANN FITHIAN, A MINOR AND HER PARENTS, STEVEN AND DEBRA FITHIAN : DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4930 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Friday, August 31, 2001 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Hubert X. Gilroy, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Friday, October 05, 2001 at 8:30 a.m. 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 enay 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: Is/ Hubert X. Gilroy. Esq_ ~5/ 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 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 NICHOLAS A. CLEMENTE, P.C. BY: MICHAEL P. BRADLEY, ESQUIRE ATTORNEY I.D. NO. 77283 123 SOUTH BROAD STREET SUITE 1970 PHILADELPHIA, PA 19109 (215) 790-4000 CHRISTINE M. HUMMEL TRAVIS L. MELLOTT CORIE ANN FITHIAN, STEVEN FITHIAN DEBRA FITHIAN MINOR : COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 01-4930 CIVIL ACTION LAW IN CUSTODY RULE TO SHOW CAUS~ AND NOW, this day of , 2001, upon consideration of the within Petition and Motion of Michael F. Bradley, Esquire, of the Law Offices of Nicholas A. Clemente, P.C., attorney for Petitioners, Corie Ann Fithian, Steven Fithian and Debra Fithian, a Rule is hereby entered upon the Respondents, Christine M. Hummel and Travis L. Mellott, to show cause why the attached Petition should not be granted. RULE RETURNABLE the day of at m. in Courtroom Courthouse, Carlisle, Pennsylvania. , Cumberland County , 2001 BY THE COURT: NICHOLAS A. CLEMENTE, P.C. BY: MICHAEL F. BRADLEY, ESQUIRE ATTORNEY I.D. NO. 77283 123 SOUTH BROAD STREET SUITE 1970 PHILADELPHIA, PA 19109 (215) 790-4000 CHRISTINE M. HUMMEL TRAVIS L. MELLOTT Vo CORIE ANN FITHIAN, STEVEN FITHIAN DEBRA FITHIAN MINOR COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 01-4930 CIVIL ACTION LAW IN CUSTODY ORDER AND NOW, this day of ,2001, upon consideration of defendant's Preliminary Objections asserting improper venue, it is hereby ORDERED that defendant's Preliminary Objections are sustained. It is further ORDERED that this action shall be transferred to the Court of Common Pleas of Bucks County. The Prothonotary of this Court is directed to forward to the Prothonotary of Bucks County certified copies of the docket entries, process, pleadings, depositions and other papers filed in this action. The plaintiff shall pay to the Prothonotary of this Court all applicable costs and fees for the transfer and removal of the record to Bucks County. BY THE COURT: Jo NICHOLAS A. CLEMENTE, P.C. BY: MICHAEL F. BRADLEY, ESQUIRE ATTORNEY I.D. NO. 77283 123 SOUTH BROAD STREET SUITE 1970 PHILADELPHIA, PA 19109 (215) 790-4000 CHRISTINE M. HUMMEL TRAVIS L. MELLOTT CORIE ANN FITHIAN, STEVEN FITHIAN DEBRA FITHIAN MINOR : COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 01-4930 CIVIL ACTION LAW IN CUSTODY PRELIMINARY OBJECTIONS TO P?.aT~'TIFF'S CUSTODY COMPLAINT Petitioners, Corie Ann Fithian, Steven Fithian and Debra Fithian, by their attorney, Michael F. Bradley, Esquire, of the Law Offices of Nicholas A. Clemente, P.C. file the following Preliminary Objections to Respondent's Complaint raising improper venue under Pennsylvania Rule of Civil Procedure 1028 and 1915.2 and in support thereof avers the following: 1. Petitioners are Corie-Ann Fithian, a minor, Steven Fithian and Debra Fithian who reside at 208 Welsford Road, Fairless Hills, Bucks County, PA 19030. 2. Respondents are Christine M. Mummel and Travis Mellott who reside at 21 Pine Street, Carlisle, Cumberland County, PA 17013. 3. Respondents filed the instant Complaint in Custody, in the County of Cumberland, Pennsylvania. Respondents were never served with a copy of the Complaint in Custody, only the Order of Court Scheduling a Conference for October 5, 2001. Therefore a copy can not be attached. 4. The child in question is Izaiah Fithian, date of birth April 14, 2001, who resides with Petitioners in Bucks County. 5. Respondents allege that Cumberland County is the proper Respondents have has failed to allege that the parties entered into a written Agreement allowing the Custody Action to proceed in Cumberland County. 7. Respondents have failed to allege that the child's domicile is in Cumberland County. 8. Petitioners have initiated Custody proceedings in the County of Bucks. A copy of the Complaint for Custody is attached and hereto incorporated as Exhibit ~. 9. The Mother of the child, Corie-Ann Fithian is a minor who resides with her Father and Step-Mother in Bucks County. 10. Father Steven Fithian has primary Physical custody of his daughter via a Court Order from Bucks County, Pennsylvania. venue. 6. 11. For the short period of time that Corie-Ann Fithian resided in Cumberland County, Steven Fithian maintained custody. 12. The child in question resided in Cumberland County from birth until July 2001. 13. The child has resided in Bucks County from July 2001 until the present. 14. The intent of the Petitioners is for the child and mother to continue to reside in Bucks County. 15. Rule 1028 of the Pennsylvania Rules of Civil Procedure allow any party to file preliminary objections for the followinG Grounds: ~'lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue. 16. Petitioners have standing to file Preliminary Objections since they are contestinG the venue used by Respondents. 17. Rule 1915.2 of the Pennsylvania Rules of Civil Procedure provides in part that a custody action may be brought in the county (1) (i) which is the home county of the child at the time of commencement of the proceedings, or (ii) which has been the child's home county within six months before commencement of the proceeding and the child is absent from the county because of the child's removal or retention by a person claiming the child's custody or for other reasons and a parent or person acting as a parent continues to live in the county; or (2) in which it is in the best interest of the child that the court decide the matter because the child and the child's parents, or the child and at least one party, have a significant connection with the county and there is available within the county substantial evidence concerning the child's presence or future care, protection, training and personal relationships 18. Bucks County is the home county of the child in question. 19. Bucks County has been the home county within six months of the commencement of the action. 20. I~ is in the best interest of the child for Bucks County to decide the matter since the child has a significant connection with the county. W~.R~.FORE, Petitioner respectfully requests that its Preliminary Objections be sustained and this action transferred to Bucks County, Pennsylvania pursuant to Pa.R.C.P. 1915.2(d). Re spect fu]/l~V .,submitted, ~hael F. ~.adl.ey, Esquire Attorney fo~ Corle-Ann Fithian, Steven Fithian and Debra Fithian VERIFICATION Michael F. Bradley, Esquire verifies that he is the attorney for the Petitioners and duly authorized to make this verification on their behalf and that the facts of the foregoing Petitioner's Preliminary Objections are true and correct to the best of his knowledge, information and belief. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsw~rn~sification to authorities, i~cha~el F. ~radley,)~~ Esquire Attorney for Corie-Ann Fithian, Steven Fithian and Debra Fithian Date: NICHOLAS A. CLEMENTE, P.C. BY: Michael F. Bradley, Esquire Attorney I.D. No. 77283 123 South Broad Street Suite 1970 Philadelphia, PA 19109 Phone: (215) 790-4000 STEVEN FITHIAN - FATHER 208 WELSFORD ROAD FAIRLESS HILLS, PA 19030 On behalf of CORIE-ANN FITHIAN - MOTHER A Minor 208 WELSFORD ROAD FAIRLESS HILLS, PA 19030 TRAVIS MELLOTT - FATHER 21 PINE STREET CARLISLE, PA 17013 Attorney for Plaintiffs Steven Fithian and Corie-Ann Fithian COURT OF COMMON PLEAS OF BUCKS COUNTY FAMILY COURT DIVISION NO. A06- Attorney I.D. No. 77283 COMPLAINT FOR CUSTODY TO THE HONORABLE, THE JUDGES OF THE SAID COURT: The Complaint of STEVEN FITHIAN on behalf of CORIE-ANN FITHIAN, a minor, by and through their attorney, Michael Bradley, Esquire of the Law Offices of Nicholas A. Clements, represents that: 1. The Plaintiff, and Plaintiff Corie-Ann, Road, Fairless Hills, PA 19030. 2. The Defendant, Travis Mellott, who currently resides at 21 Pine Street, 3. The parties are not married. 4. Plaintiffs seek joint lee and primary physical Steven Fithian, is an adult individual a minor, both reside at 208 Welsford is an adult individual Carlisle, PA 17013. custody of the following child: NAME Izaiah Fithian Defendant. The child The Steven Fithian ADDRESS DATE OF BIRTH AGE 208 Welsford Rd. 4/14/01 5 months Fairless Hills, PA 19030 was not born during the marriage of the child is presently in the custody of Plaintiffs, and Corie-Ann Fithian who resides at 2D8 W~lsford Road, Fairless Hills, PA 19030. 5. During the past five years, the child has the following persons and at the following address: NAME resided with ADDRESS 207 Plaza Dr. Boiling Springs, PA 208 Welsford Rd. Fairless Hills, PA DATES birth to 7/01 7/01 to present Mother, Maternal Grandmother' Mother, Maternal Grandfather, Stepmother 2 uncles, 4 aunts, Step grandfather The maternal grandfather of the child is Plaintiff, Steven Fithian who resides at 208 Welsford Road, Fairless Hills, PA 19030. He is married. Fithian, 19030. The mother of the child is Plaintiff, Corie-Ann who resides at 208 Welsford Road, Fairless Hills, PA She is not married. The father of the child is Defendant, Travis who resides at 21 Pine Street, Carlisle, PA 17013. Mellott, He is not married. 6. The relationship of Plaintiff to the child is that of maternal grandfather. The Plaintiff currently resides with the following persons: NAME Debra Haugstad Corie-Ann Fithian Robert Haugstad Felicia Fithian Jessica Saranzak Anthony Saranzak Steven Fithian Laura Fithian Izaiah Fithian RELATIONSHIP wife daughter father-in-law daughter step-daughter step-son son daughter grandson 7. The relationship of Plaintiff to the child is that of natural mother. The Plaintiff currently resides with the following persons: NAME RELATIONSHIP Steven Haugstad Debra Haugstad Robert Haugstad Felicia Fithian Jessica Saranzak Anthony Saranzak Steven Fithian Laura Fithian Izaiah Fithian father stepmother step grandfather sister step-sister step-brother brother sister son 8. The relationship of the Defendant to the child is that of natural father. The Defendant currently resides with the following persons: NAME Seth Hummel Christine Hummel Keith Hummel RELATI__ONSHIP brother mother step father 9. Plaintiff has not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the child in this or another court. Plaintiff has no other information of any custody proceeding concerning the child pending in a court of this Commonwealth. Plaintiff does not know of any person not a party to these proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child. 10. The best interest and permanent welfare of the child would be served by granting Plaintiff joint legal and primary physical custody. Mother has been the primary caregiver since the child's birth. Mother and Grandfather reside in the same household and will both raise the child. Paternal Grandmother has repeatedly threatened to take the child out of the jurisdiction. It is in the child's best interest to grant custody to Maternal Grandfather and Mother. 11. Each parent whose parental rights to the child ~ms ~not been terminated and the person who is believed to ha~e ~kysic~! custody of the child has been named as parties to this action. WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant joint legal and primary physical custody of the minor child to Petitioner, Steven Fithian and Corie-Ann Fithian without prejudice to the Defendant. Respectfully submitted, NICHOL~~EMENTE,i~~ P.C. Philadelphia, PA 19109 (215) 790-4000 Attorney for Plaintiffs VERIFICATION I verify that the statements made in the foregoing Complaint for Custody is true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. ~even Fitni/an~/~''~ ~> Dated: Dated: NICHOLAS A. CLEMENTE, P.C. BY: MICHAEL F. BRADLEY, ESQUIRE ATTORNEY I.D. NO. 77283 123 SOUTH BROAD STREET SUITE 1970 PHILADELPHIA, PA 19109 (215) 790-4000 CHRISTINE M. HUMMEL TRAVIS L. MELLOTT CORIE ANN FITHIAN, STEVEN FITHIAN DEBRA FITHI/LN MINOR : COURT OF COMMON PLEAS OF CUMBERLJ~qD COUNTY PENNSYLVANIA NO. 01-4930 CIVIL ACTION LAW IN CUSTODY MEMORANDUM IN SUPPORT OF PETITIONER'S PRELT~T~ARy OBJECTION~ The Complaint of Christine Hummell and Travis Mellott (hereinafter Plaintiffs) against Corie Ann Fithian, a minor and Steven Fithian and Debra Fithian, parents (hereafter Defendants) has been filed in the wrong county. Proper venue is in Bucks County. Preliminary Objections are allowed under Pennsylvania Rule of Civil Procedure 1028 which state in relevant part that any party can file preliminary objections if any party disputes the following: "lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue. . Petitioners are claiming that Cumberland County is not the proper venue. As stated, the rule regarding venue in a custody matter is as follows: a custody matter can be filed in the county in (1) (i) which is the home county of the child at the time of commencement of the proceedings, or (ii) which has been the child's home county within six months before commencement of the proceeding and the child is absent from the county because of the child's removal or retention by a person claiming the child's custody or for other reasons and a parent or person acting as a parent continues to live in the county; or (2) in which it is in the best interest of the child that the court decide the matter because the child and the child,s parents, or the child and at least one party, have a significant connection with the county and there is available within the county substantial evidence concerning the child's presence or future care, protection, training and personal relationships Pa.R.C.P. 1915.2 The Plaintiff alleged in their Complaint that the proper venue for this action is Cumberland County. This is in error. The home county is Bucks County. The child in question, Izaiah, and her mother, a fifteen-year old (15) minor, reside with her father Steven Fithian in Bucks County. The child's primary care physician is in Bucks County. The mother's siblings all reside in Bucks County. Mother attends high school in Bucks County. Father has primary physical custody of Mother through a Court Order from Bucks County. The mother did spend a period of time in Cumberland County but she never established residence there. The fact that conception occurred in Cumberland County is not enough to allow venue to be in Cumberland County. At all times primary physical custody was with maternal grandfather in Bucks County. Since the child has not reached six months in age to this point, 1915.2(a) (1)(ii) does not apply. Mowever, the child is not absent from the proper county. The Mother is in the custo~ of her father in Bucks Count and that never changed. Further, it is in the best interest for this matter to be held in Bucks County since that is where the child resides and where the child will continue to reside. As previously stated, all of the major aspects of the child's life are in Bucks County. Finally, a Complaint in Custody in Bucks County has already been initiated. For these reasons, Petitioners are requesting that the Cu~erland C°unty matter be I ~~cks County according to Pa.R.C.P. 1915.2(d). iichael F. Bradley, Esquire Attorney for Petitioners NICHOLAS A. CLEMENTE, P.C. BY: MICHAEL F. BRADLEY, ESQUIRE ATTOP~NEY I.D. NO. 77283 123 SOUTH BROAD STREET SUITE 1970 PHILADELPHIA, PA 19109 (215) 790-4000 CHRISTINE M. HUMMEL TRAVIS L. MELLOTT Vo CORIE ANN FITHIAN, MINOR STEVEN FITHIAN DEBRA FITHIAN COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 01-4930 CIVIL ACTION LAW IN CUSTODY CERTIFICATE OF SERVICE I certify that a true and correct copy of Petitioner's Preliminary Objections have been served upon the following individuals by first class mail, postage prepaid, this 18th day of September 2001, addressed as follows Irwin, McKnight & Hughes West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 Attorney for Respondent ichael ~y, Esquire Attorney for Petitioners PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in dup//cate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please ] ~st the w~thin matter for the next Arcju~_nt Court. CAPTION OF CASE (entire caption must be stated in ~lll) CHRISTINE M. HUMMEL TRAVIS L. MELLOTT CORIE ANN FITHIAN, STEVEN FITHIAN DEBRA FITHAIN MINOR (PI ~ntJ_ff) ( Defendant ) No.01-4930 Civil 19 State matter to be arc3ued (i.e., plaintiff's motion for new trial, defendant's d~u~rer to c~]a~nt, etc. ): Defendent's preliminary objections Identify counsel who w~]] argue case: (a) for plaintiff: ;u~ess: (b) for defendant: A~a~ess: to Plaintiff's custody complaint Irwin, McKnight, & Hughes 60 West Pomfret Street Carlisle, PA 17013-3222 Michael F. Bradley 123 South Broad Street Suite 1970 Philadelphia, PA 19109 I w~] 1 notif~ a]] parties in writing within t~o d~ys that this ~ese been Ii-ted for ~t. 4. Ar~3z,ent Court Date: Attorney ~or D~ endent DEC ~ 0 ~001 ~ ~ CHRISTINE M. HUMMEL and TRAVIS L. MELLOTT, Plaintiffs V STEVEN FITHIAN and DEBRA FITHIAN, DefendantS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01 - 4930 CIVIL IN CUSTODY COURT ORDER AND NOW, this /,~r~tday of December, 2001, the conciliator being advised that the parties have between themselves reached an agreement concerning custody, the conciliator relinquishes jurisdiction. BY THE COURT, C uU~ tbeo~yX~ oGi~ [~iaY;o rE s q~3iffe ,~NVA'g,,SNN'aa