HomeMy WebLinkAbout05-1105IN THE COURT OF COMMON PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA ??}}
MELISSA A- LINDQUIST NO, ?s - //OS l tU?L?
Plaintiff CIVIL ACTION - LA"'
JASON E- KESSLER,
Defendant CUSTODY
COMPLAINT IN CUSTODY
AND NOW, Plaintiff, MELISSA A. LINDQUIST, by and through her
attorney, G. Patrick O'Connor, Esquire, files a Complaint for Custody of which the
following is a statement
The Plaintiff is MELISSA A. LINDQUIST, an adult individual who
resides at 6 South 17th Street, Camp Hill, Cumberland County, Pennsylvania 17011.
2 The Defendant is JASON E. KESSLER, an adult individual who
resides at 4 Birch Street, Enola, Cumberland County, Pennsylvania 17025.
3 Plaintiff seeks custody of the following child/children:
Name Present Address Date of Birth
Breanna J Kessler 6 South 17th Street March 21, 2003
Camp Hill, PA 17011
The child was born out of wedlock
The child is presently in the custody of the mother, MELISSA A.
LINDQUIST, who currently resides at 6 South 17th Street, Camp Hill, Cumberland
County, Pennsylvania 17011.
During the past five (5) years, the child resided with the following persons at
the following addresses:
Persons Address
Plaintiff 6 South 17th Street
Camp Hill, PA 17011
Plaintiff 4 Birch Street
Defendant Enola, PA 17025
Date
3/10/05 to present
Birth to 3/10/05
The mother of the child is MELISSA A. LINDQUIST, who currently resides at
6 South 17th Street, Camp Hill, Cumberland County, Pennsylvania 17011 She is
single.
The father of the child is JASON E. KESSLER, who currently resides at 4
Birch Street, Enola, Cumberland County, PA 17025. He is single.
4. The relationship of Plaintiff, MELISSA A. LINDQUIST, to the child is
that of mother. The plaintiff currently resides with the following persons: The parties'
child. Breanna I Kessler.
5. The relationship of Defendant, JASON E. KESSLER, to the child is
that of father, The defendant currently resides alone.
6. 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 information of a custody proceeding concerning the child
pending in a court of this Commonwealth or any other state.
Plaintiff does not know of any 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 interests and permanent welfare of the child will be served by
granting primary physical custody to the Plaintiff because the Plaintiff is in the better
situation to provide primary physical custody.
8 Each parent whose parental rights to the child has not been terminated
and the person who has physical custody of the child has been named as party 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: (None)
WHEREFORE, Petitioner respectfully requests that this Honorable Court
grant primary physical custody of the child to Plaintiff.
r
DATE: v? /? (l6
Respectfully submitted.
By A"---
G. Patrick O'Connor, Esquire
3105 Old Gettysburg Road
Camp Hill, PA 17011
Phone: 717-737-7760
Attorney ID # 64720
ATTORNEY FOR PLAINTIFF
VERIFICATION
1, G. Patrick O'Connor, Esquire, hereby certify that I am the attorney for the
Plaintiff and that the information contained in the herein petition is based on
information give to me by the Plaintiff and is true and accurate to the best of my
knowledge, information and belief.
G. Patrick O'Connor, Esquire
DATE, /?'??
CERTIFICATE OF SERVICE
1 hereby certify that T have, this day, served the herein Custody Complaint to
the party indicated below by regular first class U. S. mail and by certified mail, return
receipt requested.
Jason E. Kessler
4 Birch Street
Enola, PA 17025
G. Patrick O'Connor, Esquire
Attorney No. 64720
3105 Old Gettysburg Road
Camp Hill, PA 17011
(717) 737-7760
Attorney for Plaintiff
k
M "C ?
'
'
p \ - ?;
4 f
1
?
uz)
MELISSA A. LINDQUIST IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
JASON E. KESSLER
DEFENDANT
05-1105 CIVIL ACTION LAW
IN CUSTODY
ORDER OF COURT
AND NOW, Tuesday, March 08, 2005 _, upon consideration of the attached Complaint,
it is hereby directed that parties and their respective counsel appear before Melissa P. Greevy, Esq. the conciliator,
at DJ Manlove's, 1901 State St., Camp Hill, PA 17011 on Friday, April 01, 2005 at 11:00 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/ _ Melissa P. GreeM-Eqsq.
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
,vw
RECEIVED MAY 2 7 Me
MELISSA A. LINDQUIST, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 05-1105 CIVIL TERM
V.
JASON E. KESSLER,
Defendant
CIVIL ACTION - LAW
IN CUSTODY
TEMPORARY ORDER OF COURT
AND NOW, this Z7- day of 2005, upon consideration
of the attached Custody Conciliation Summary Re ort, it is hereby ordered and directed as
follows:
1. Legal Custody. The parties, Melissa A. Lindquist and Jason E. Kessler, shall
have shared legal custody of the minor child, Breanna J. Kessler, born March 21, 2003.
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. Pursuant to the terms
of 23 Pa. C. S. §5309, each parent shall be entitled to all records and information pertaining
to the child including, but not limited to, medical, dental, religious or school records, the
residence address of the child and of the other parent. To the extent one parent has
possession of any such records or information, that parent shall be required to share the
same, or copies thereof, with the other parent within such reasonable time as to make the
records and information of reasonable use to the other parent.
2. Physical Custody. Pending hearing, the parties shall continue the shared
physical custody schedule which they have been following prior to the Conciliation
Conference:
A. Effective May 16, 2005, Father shall have custody on alternating
Mondays and Tuesdays from 4:30 p.m. until the following morning when the
child is taken to daycare (or to Mother) prior to going to work.
B. Effective May 20, 2005, Father shall have custody on alternating
weekends from Friday at 4:30 p.m. until Monday morning when he drops off
the child at daycare (or to Mother) prior to going to work.
C. Effective May 25, 2005, Father shall have custody on alternating
Wednesdays and Thursdays from 4:30 p.m. until the following morning when
he takes the child to daycare (or to Mother) prior to going to work.
E,
NO. 05-1105 CIVIL TERM
D. Effective May 13, 2005, Mother shall have custody on alternating
weekends from Friday morning when Father drops the child off until the
following Monday at 4:30 p.m., the commencement of Father's custodial time.
E. Effective May 23, 2005, Mother shall have custody on alternating
Mondays until Wednesday at 4:30 p.m.
F. Effective May 18, 2005, Mother shall have custody on alternating
Wednesdays until Friday at 4:30 p.m.
3. It is noted that when Mother works 6:00 p.m. to 6:00 a.m. and the custodial
exchange is to take place before Father goes to work, the child may be taken to a daycare
setting in order to allow Mother to have some sleep before commencing her custodial time.
. 4. Holidays. The parties have agreed to alternate the holidays which shall be
from 6:30 p.m. the day before the holiday until 6:30 p.m. the day of the holiday.
Commencing with Mother having custody for Memorial Day 2005, the parties will alternate
the following holidays: Easter, Memorial Day, Independence Day, Labor Day and
Thanksgiving. The child shall be with Mother for Mother's Day and with Father for Father's
Day.
5. A hearing is s heduled in Co, rtroom Number _Y_ of the Cumberland County
Courthouse, on the 7-49 day of JrIL,, , 2005, at 9,'-50 o'clock
_&_.M., at which time testimony will be taken. For the purposes of the hearing, the Mother,
Melissa A. Lindquist, shall be deemed to be the moving party and shall proceed initially with
testimony. Counsel for the parties or the parties pro se shall file with the Court and
opposing counsel/party a memorandum setting forth each party's position on custody, a list
of witnesses who are expected to testify at the hearing, and a summary of the anticipated
testimony of each witness. These memoranda shall be filed at least ten days prior to the
hearing date.
BY THE COURT:
J.
Dist: G. Patrick O'Connor, Esquire, 3105 Old Gettystfurg Road, Camp Hill, PA 17011 `
Barbara Sumple-Sullivan, Esquire, 549 Bridge Street, New Cumberland, PA 17070??
RECEIVED MAY 271
MELISSA A. LINDQUIST,
Plaintiff
NO. 05-1105 CIVIL TERM
V.
JASON E. KESSLER,
Defendant
CUSTODY CONCILIATION SUMMARY REPORT
IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE
1915.3-8, the undersigned Custody Conciliator submits the following report:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
IN CUSTODY
1. The pertinent information concerning the child who is the subject of this
litigation is as follows:
NAME
DATE OF BIRTH
CURRENTLY IN THE CUSTODY OF
Breanna J. Kessler
March 21, 2003
Mother and Father
2. Father filed a Complaint for Custody on March 2, 2005 seeking primary
custody of the child. A Custody Conciliation Conference was held on May 6, 2005. Present
for the Conference were: the Mother, Melissa A. Lindquist, and her counsel, G. Patrick
O'Connor, Esquire; the Father, Jason E. Kessler, and his counsel, Barbara Sumple-Sullivan,
Esquire.
3. Mother's position on custody is as follows: Mother claims that she is in a
better situation to provide primary physical custody. Mother resides in Camp Hill where she
has been since March 10, 2005. Prior to that time, from the child's birth until March 10,
2005 the parties lived together in Enola. The parties have worked out an interim schedule
without litigation. However, Mother is not satisfied with this plan. Mother alleges that Father
has an alcohol problem. She alleges that in the past he has kicked pets with steel-toed
boots, has allowed ihe child to ride with him on a motorcycle without a helmet, and taken
the child in a canoe during flood conditions. Mother also believes that the Father needs
anger management classes. Mother claims that Father's reluctance to change the schedule
to that which suits her is motivated by concerns regarding the amount of child support being
paid. Mother works a 12 hour shift 6:00 a.m. to 6:00 p.m. for a six (6) week period of time
and then switches to a shift that is 6:00 p.m. to 6:00 a.m. for a six (6) week period of time.
Without regard to which shift she is working, she is off on Wednesday and Thursday during
one week and alternating with the following week when she works only on Wednesday and
Thursday. Mother complains that when she is working night shift, Father drops off the child
at 5:30 a.m. before he goes to work, even on her days off. She would prefer that he leave
the child with her the evening before so that the child can sleep later.
NO. 05-1105 CIVIL TERM
4. Father's position on custody is as follows: Father resides in Enola and is
employed full time during the day as a construction worker. His speck work hours are
dependent upon the location of the job site. At present, he is in a project which is located in
Chambersburg, Pennsylvania. Father seeks to continue to share physical custody of the
child. He is willing to participate in a chemical dependency assessment as Mother's request
and at her expense. He believes that Mother's position with regard to custody is also
related to the child support obligation. He believes that she is seeking to confine his
custodial time to only those times when she is not available so that she does not have to
give up any custodial time on her days off. Father is satisfied with the status quo that the
parties have worked out with regard to custody and has indicated that if Mother objects to
him dropping off the child early in the morning before he goes to work on her day off, he
would be willing to take the child to the babysitter that the parties use so that Mom could
sleep later and pick the child up later in the day after Mother has had a chance to get some
sleep.
5. Because the parties have not been able to reach an agreement with regard to
modifying the schedule that they have been following, the parties are in need of a hearing.
The attached Order reflects the Conciliator's understanding of the status quo with regard to
the schedule. No recommendation was made to change the schedule pending hearing, in
part so that, if a change is to be made to the schedule, the child has no more than one
different schedule to which she must adjust. In the interim, the parties have agreed to
custodial time for Mother's Day and Father's Day which shall be from 6:30 p.m. the day
before the holiday until 6:30 p.m. the day of the holiday.
?S
Date Melissa Peel Greevy, squire
Custody Conciliator
:251590
Barbara Sumple-Sullivan, Esquire
Supreme Court #32317
549 Bridge Street
New Cumberland, PA 17070
(717) 774-1445
MELISSA A. LINDQUIST, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V.
JASON E. KESSLER,
Defendant
NO. 2005-1105
CIVIL ACTION - LAW
CUSTODY
ANSWER TO CUSTODY COMPLAINT AND
COUNTERCLAIM FOR CUSTODY
1. Admitted.
2. Admitted.
Admitted with the clarification that the child has lived equally in both the homes of Plaintiff
and Defendant since Plaintiff left Defendant's home in March, 2005 and hence the addresses
listed are incorrect.
Admitted.
Admitted.
6. Denied. After reasonable investigation, Defendant is without information to form a belief as
to the truth of the averment. Therefore, it is denied.
Denied. It is denied that it is in the best interests and permanent welfare of the child for
Plaintiff to be awarded primary physical custody. The status quo of shared equal physical
custody has worked well since separation in March, 200:5. This provides shared and equal
contact between each party and their daughter and maximizes the time the child spends with
each parent in light of their work schedules. However, if a primary parent is deemed to be
necessary, Defendant should be that parent for the reasons set forth in Paragraph I1 of
Defendant's Counterclaim.
8. Admitted.
COUNTERCLAIM
9. The averments in paragraphs 1 through 8, inclusive, of Defendant's Answer to Custody
Complaint are incorporated herein by reference thereto.
10. Defendant seeks an award of primary physical custody of the parties' minor child for
himself and a schedule for periods of partial custody with Plaintiff.
11. The best interest and permanent welfare of the child will be served by granting the relief
requested because Defendant is better able to provide a more stable environment for the
child. Defendant can provide a healthy, supportive and Moving environment for the child.
Defendant is more capable of continuing to foster the relationship between Plaintiff and
the child. Defendant is also better able to communicate with Plaintiff regarding issues of
the child. The child does well in the custody of the Defendant and a decrease in time with
Defendant would only be detrimental.
Dated: June 24, 2005
Barbara Sumple-Sullivan, Esquire
549 Bridge Street
New Cumberland, PA 17070
(717) 774-1445
Supreme Court I.D. 32317
Barbara Sumple-Sullivan, Esquire
Supreme Court #32317
549 Bridge Street
New Cumberland, PA 17070
(717) 774-1445
MELISSA A. LINDQUIST, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V.
JASON E. KESSLER,
Defendant
NO. 2005-1105
CIVIL ACTION - LAW
CUSTODY
VERIFICATION
I, Jason E. Kessler, hereby certify that the facts set forth in the foregoing RESPONSE AND
COUNTERCLAIM TO PLAINTIFF'S CUSTODY COMPLAINT are true and correct to the
best of my knowledge, information and belief. I understand that any false statements made herein are
subject to penalties of 18 Pa. C.S.A. §4904 relating to unsworn :Falsification to authorities.
O
DATED: 2005
ON E. KESSLER
Barbara Sumple-Sullivan, Esquire
Supreme Court #32317
549 Bridge Street
New Cumberland, PA 17070
(717) 774-1445
MELISSA A. LINDQUIST, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V.
JASON E. KESSLER,
Defendant
NO. 2005-1105
CIVIL ACTION - LAW
CUSTODY
CERTIFICATE OF SERVICE
I, Amanda L. Baker, Paralegal to Barbara Sumple-Sullivan, do hereby certify that on this
date, I served a true and correct copy of the RESPONSE AND COUNTERCLAIM TO
PLAINTIFF'S COMPLAINT, in the above-captioned matter upon the following individual, by
United States first-class mail, postage prepaid, addressed as follows:
G. Patrick O'Conner, Esquire
3105 Old Gettysburg Road
Camp Hill, PA 17011
DATE: June 24, 2005 NwKC& ,
Amanda L. Baker, Paralegal to
Barbara Sumple-Sullivan, Esquire
549 Bridge Street
New Cumberland, PA 17070-1931
(717) 774-1445
Supreme Court ID. 32317
Attorney for Defendant
4
f*7 (i ?:
CFA J. L
r ;fJ
-[gin
co
MELISSA A. LINDQUIST, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
vs. CIVIL ACTION - LAW
NO. 05-1105 CIVIL
JASON E. KESSLER,
Defendant IN CUSTODY
ORDER
AND NOW, this ` day of August, 2005, at the request of counsel for the
plaintiff and with the concurrence of counsel for the defendant, hearing in the above captioned
matter set for September 7, 2005, is continued to Wednesday, October 26, 2005, at 1:30 p.m. in
Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA.
BY THE COURT,
Kevin y Hess, J.
vOatrick O'Connor, Esquire
For the Plaintiff
Aarbara Sumple-Sullivan, Esquire
For the Defendant
Arn
o??
0"1:21;,J l-..",iy901
f
MELISSA A. LINDQUIST,
Plaintiff
vs.
JASON E. KESSLER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION- LAW
NO. 05-1105 CIVIL
IN RE: CUSTODY
ORDER
AND NOW, this
follows:
9" day of December, 2005, after hearing, it is ordered as
1. Legal Custody: The parties shall have shared legal custody of their minor child,
Breanna J. Kessler, born March 21, 2003.
2. Physical Custody: The parties shall equally share physical custody of Breanna on the
following schedule:
a. Weekends: Each party shall have physical custody on alternating weekends
from Friday at 5:00 p.m. to Monday at approximately 7:00 a.m.
b. Weekdays - Week 1: Following Father's weekend, Mother to have custody
starting no later than 7:00 a.m. on Monday until Wednesday at 5:00 p.m. Mother shall
have the option of having father drop off the child at either daycare or her residence
on Monday morning prior to 7:00 a.m. Father shall pick up the child at daycare or
residence of Mother after work on Wednesday. If Father is off of work on Monday,
he may retain custody during the period of time that the child would normally be in
daycare.
Father to have custody from Wednesday at 5:00 p.m. until Friday at 5:00 p.m.,
NO. 05-1105 CIVIL
at which time Mother shall pick up the child for the start of her weekend.
c. Weekdays - Week 2: Following Mother's weekend, Father to have custody
starting no later than 7:00 a.m. on Monday until Wednesday at 5:00 p.m. Father shall
have the option of having Mother drop off the child at either daycare or his residence
on Monday morning prior to 7:00 a.m. Mother shall pick up the child at daycare or
residence of Father after work on Wednesday. If Mother is off of work on Monday,
she may retain custody during the period of time that the child would normally be in
daycare.
Mother to have custody from Wednesday at 5:00 p.m. until Friday at 5:00 p.m.,
at which time Father shall pick up the child for the start of his weekend,
d. In the event that either parent is off of work on the other parent's designated
custodial day and the child would normally be in daycare, that parent shall have the
right of first refusal for the child during his or her time off,
3. Holidays: The parties shall celebrate holidays as follows:
a. Easter: Easter shall be defined as 9:00 a.m. to 7:00 p.m. Mother shall have
odd-numbered years and Father shall have Easter in even-numbered years.
b. Thanksgiving Day and New Year's Day: In odd-numbered years, Father
shall have Thanksgiving Day and New Year's Day. These holidays shall be defined as
6:00 p.m. on the evening before the holiday until 7:00 p.m. the day of the holiday.
Mother shall have these times in even-numbered years.
c. Christmas Day: Christmas Day shall be divided into two segments which shall
alternate from year to year. In even-numbered years, Father shall have segment I from
2
NO. 05-1105 CIVIL
2:00 p.m. on December 24`" until 2:00 p.m. on December 25`" and Mother shall
have segment 2 from 2:00 p.m. on December 25`" until 2:00 p.m. on December 26`"
In odd-numbered years, Mother shall have segment 1 and Father shall have
segment 2.
d. Memorial Day, July 4'h, Labor Day: These holidays shall alternate with
Father having Memorial Day and Labor Day in even years and Mother having
July 4th in even years. In odd years, Mother shall have Memorial and Labor Day
and Father shall have July 4`h. These holidays shall be defined as 6:00 p.m. on the
evening before the holiday until 7:00 p.m. the day of the holiday.
e. Mother's Day: Mother shall always have Mother's Day, which shall be
defined from 9:00 a.m. until 7:00 p.m. and shall supersede the normal custodial
schedule.
f. Father's Day: Father shall always have Father's Day, which shall be
defined from 9:00 a.m. until 7:00 p.m. and shall supersede the normal custodial
schedule.
g. Child's Birthday (March 21"): The child's birthday shall be divided into
two segments which shall alternate from year to year. In even-numbered years, Father
shall have segment 1 from 2:00 p.m, or pick-up from daycare on March 20'h until
2:00 p.m. on March 2151 and Mother shall have segment 2 from 2:00 p.m. on
March 2I't until 2:00 p.m. on March 22"d. In odd-numbered years, Mother shall
have segment 1 and Father shall have segment 2.
The periods of partial custody for holidays or other special days set forth in this
3
NO, 05-1105 CIVIL
Order shall be in addition to, and shall take precedence over, but shall not alter the
schedule or sequence of regular periods of partial custody for the parent as set forth
previously in this Order.
In the event that a parent who would otherwise have custody of the child during
a weekend which immediately precedes or follows one of the alternating holidays
on which that same parent would also have custody, the parent need not relinquish
custody until the conclusion of the entire three (3)-day period.
4. Summer Vacation: Each parent shall have two (2) nonconsecutive weeks of
uninterrupted custody with the child each summer for the propose of vacation. This period shall
be seven (7) days and include that party's weekend.
5. Transportation: Unless otherwise indicated in this order, the parent who will be
commencing his or her period of custody shall pick up the child for his or her custodial period.
6. Positive Relationships: Each of the parties and any third party in the presence of the
child and the party shall take all measures deemed advisable to foster a feeling of affection
between the child and the other party and neither will do anything which may estrange the child
from the other party or impair the child's high regard for the other party. Neither party shall do
anything which may estrange the child from the other party or injure the child's opinion of the
parent or which may hamper the free and natural development of the child's love and respect for
the other parent.
The parties shall not use the child to convey verbal messages to the other parent about the
custody situation or changes in the custody schedule.
0 •
MELISSA A. LINDQUIST, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - :LAW
JASON E. KESSLER, 2005-1105 CIVIL TERM
Defendant CUSTODY
Proceedings held before the HONORABLE
KEVIN A. HESS, J., Cumberland County
Courthouse, Carlisle, Pennsylvania, on
October 26, 2005, in Courtroom Number 4.
ORIGINAL
APPEARANCES:
G. PATRICK O'CONNOR, Esquire
For the Plaintiff
BARBARA SUMPLE-SULLIVAN, Esquire
For the Defendant
•
•
INDEX TO WITNESSES
WITNESS
PAGE
Jessica Colebaugh
Direct examination by Mr. O'Connor 5
Cross-examination by Ms. Sumple-Sullivan 15
Redirect examination by Mr. O'Connor 18
Rhonda Blumenstein
Direct examination by Mr. O'Connor 19
Cross-examination by Ms. Sumple-Sullivan 22
Melissa Lindquist
Direct examination by Mr. O'Connor 24
Cross-examination by Ms. Sumple-Sullivan 39
Redirect examination by Mr. O'Connor 47
Recross exam by Ms. Sumple-Sullivan 48
Carrie Barner
Direct examination by Mr. O'Connor 49
Cross-examination by Ms. Sumple-Sullivan 54
Redirect examination by Mr. O'Connor 60
Danielle Renaud
Direct examination by Mr. O'Connor 61
Cross-examination by Ms. Sumple-Sullivan 64
Celice Horn
Direct examination by Mr. O'Connor 66
Barney Penton
Direct examination by Mr. O'Connor 68
Jason Eugene Kessler
Direct examination by Ms. Sumple-Sullivan 70
Cross-examination by Mr. O'Connor 95
Redirect exam by Ms. Sumple-Sullivan 110
Linda L. Lee (via speakerphone)
Direct exam by Ms. Sumple-Sullivan 111
Cross-examination by Mr. O'Connor 119
2
•
•
INDEX TO EXHIBITS
FOR THE PLAINTIFF
1 - set of photographs (6)
2 - set of photographs (3)
IDENTIFIED
13 127
32 127
FOR THE DEFENDANT
1 - set of photographs (16) 86
127
3
1 Wednesday, October 26, 2005
2 1:30 P.M., Courtroom Number 5
3 MR. O'CONNOR: Good afternoon, Your Honor.
4 THE COURT: My papers indicate that the
5 mother i s now the moving party.
6 MS. SUMPLE-SULLIVAN: Yes.
7 THE COURT: Okay, go ahead.
8 MR. O'CONNOR: Your Honor, this is a custody
9 case. T he plaintiff is Melissa Lindquist. And at the
10 present time, she and the father of the child have a shared
11 custody. It is a 50/50 custody arrangement as far as the
12 nights g o. Although the mother has more time overall
13 because she has the child some days when the child is not in
14 daycare. The arrangement that exists at present was not
15 done wit h the full agreement of mother. That is why she is
16 in court today.
17 She is concerned that the father has an
18 alcohol problem, that he regularly drinks to excess. He has
19 an anger problem, which kind of goes along with the alcohol.
20 He tends to take his anger out on others in a very physical
21 way.
22 THE COURT: I read those allegations in the
23 summary. I have the benefit of the custody conciliation
24 summary report, if that is of any help to you. I think I
25 understa nd the issues. Why don't we hear testimony?
4
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. O'CONNOR
the safety of the child.
THE COURT:
concerns are. Go ahead.
MR. O'CONNOR
custody.
Cl
Okay. She is concerned about
She will tell me what her
Okay. She is seeking primary
THE COURT: That is what I gather.
MR. O'CONNOR: Okay. Would you like me to
call the first witness, Your Honor?
THE COURT: Yes, please.
MR. O'CONNOR: Okay. The plaintiff calls
Jessica Colebaugh to the stand.
Whereupon,
JESSICA COLEBAUGH
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. O'CONNOR:
Q Would you please state your name for the
record?
A Jessica Colebaugh.
Q Would you spell your name?
A C-o-1-e-b-a-u-g-h.
Q Where do you live, Jessica?
A 415 West Keller, Mechanicsburg, Pa.
Q Do you have any children of your own?
5
• •
1 A Yes.
2 Q And how old are your children?
3 A I have one daughter. She is two.
4 Q And have you known both Jason and Breanna
5 socially?
6 A Yes.
7 Q How long have you known them?
8 A Jason and Breanna?
9 Q Yes.
10 A I have only --
11 Q Excuse me, Jason and Melissa.
12 A I have known Jason and Melissa for
13 approximately four and a half -- four or five years.
14 Q And do you feel you know them very well?
15 A Yeah.
16 Q Have you had the opportunity to see firsthand
17 the habits and the parenting practices of both parties?
18 A Melissa. Jason on just one or two occasions.
19 Q Okay. And how would you describe Jason's
20 drinking habit s before Breanna was born?
21 A He drank a lot.
22 Q And did you notice any change after Breanna
23 was born?
24 A No, not on the few occasions that I saw him.
25 Q When you visited the home of Jason and
6
• •
1 Melissa, did you witness anything unusual about Jason's
2 patterns of coming and going in the house?
3 A I was only --
4 MS. SUMPLE-SULLIVAN: Your Honor, I'm going
5 to ask that it be more specific in regard to time reference.
6 THE COURT: That would be helpful.
7 BY MR. O'CON NOR:
8 Q When did you -- at what time of night would
9 Jason come t o the house?
10 A One occasion when I was there and spent the
11 night, it wa s around two o'clock in the morning.
12 Q And what about, what about other nights that
13 you might ha ve been there?
14 A That was the only night that I was there that
15 I spent the night after Breanna was born.
16 Q Okay. And what was his apparent physical
17 condition on that night?
18 A He was drunk.
19 Q And when you used to visit, did Jason have
20 any animals?
21 A Yes.
22 Q And what kind of animals did he have?
23 A Dog.
24 Q And did you see -- do you know what kind of
25 dog that was ?
7
• •
1 A Pit bull.
2 Q And did you see anything unusual about his
3 treatment of that dog?
4 A I seen --
5 MS. SUMPLE-SULLIVAN: I am going to object to
6 the relevanc e of the treatment of a dog to a custody action.
7 THE COURT: It is hard to parcel what is and
8 what is not relevant. I need to know about the whole
9 person. I a m wondering myself how it bears on anything, but
10 go ahead.
11 THE WITNESS: I saw him hit the dog on a few
12 occasions.
13 BY MR. O'CON NOR:
14 Q Was this a full grown dog or a puppy?
15 A She was still a puppy.
16 Q Okay. And where did Jason hit the puppy?
17 A On the mouth.
18 Q And what did he hit the puppy with?
19 A His fist.
20 Q Was this in the nature of a hard blow or a
21 love tap, or how would you describe it?
22 A He hit her pretty hard.
23 Q Did you see this happen more than once?
24 A Probably two, two or three times.
25 Q And when he did it, was it in front of
8
• •
1 Breanna on any of those times?
2 A Breanna wasn't born then.
3 Q Now, after you separated did Jason call you
4 after -- after Jason and Melissa separated, did you receive
5 any phone calls from Jason?
6 A Well, I called him first to get Missy's
7 number and the n, yeah, he called me a couple times.
8 Q Okay. Was he willing to give you Melissa's
9 number?
10 A No.
11 Q And do you recall that he called you on June
12 the 3rd, Friday, June 3rd?
13 A In the evening?
14 Q Yes.
15 A Yes.
16 Q Okay. And what --
17 MS. SUMPLE-SULLIVAN: What year was that,
18 sir?
19 BY MR. O'CONNOR:
20 Q What year was that?
21 A 2005, this past June.
22 Q Okay. And what was the reason for his call?
23 A He called cause he had people over and they
24 were having a party and he wanted me to come over.
25 Q Okay. Did you have any reason to believe
9
• •
1 that he might have custody of Breanna that night?
2 A That night, yes.
3 Q And why did you believe that he had custody?
4 A Cause I knew Missy didn't have her.
5 Q How did you know that?
6 A Cause I talked to Missy.
7 Q And how did he sound to you on the telephone?
8 A He sounded drunk.
9 Q Okay. And did he invite you to the house --
10 A Yes.
11 Q -- on that occasion? Did you go?
12 A No.
13 Q Did he call you on a later date?
14 A Yeah, he called me a few other times.
15 Q Okay. And did he invite you to go out with
16 him?
17 A Yes.
18 Q And did you accept on any of those occasions?
19 A I did accept one time.
20 MS. SUMPLE-SULLIVAN: I am going to object
21 again to the relevance here of his dating practices and the
22 relevance to a custody action.
23 THE COURT: Go ahead. Tell me why it is
24 relevant. I would be the last to know whether it is
25 relevant or not. What point are you making?
20
• •
1 MR. O'CONNOR: We are making a point as to --
2 THE COURT: You are saying --
3 MR. O'CONNOR: -- drinking.
4 THE COURT: -- instead of caring for this
5 child he goes out a nd dates and drinks and hits the dog. Is
6 that what you are s aying?
7 MR. O'CONNOR: And puts others at risk as far
8 as safety, yes.
9 THE COURT: Okay. Overruled.
10 BY MR. O'CONNOR:
11 Q And when you arrived -- did you go to his
12 house that night?
13 A Yes, I did.
14 Q And when you arrived what was he doing?
15 A Drin king.
16 Q Okay . And did he continue to drink while you
17 were there?
18 A Yes.
19 Q And then did the two of you eventually leave
20 his house?
21 A Yes.
22 Q And whose car did you leave in?
23 A His.
24 Q Did he take anything with him from the house?
25 A Yes, he took beer with him.
11
• •
1 Q And what did he do with the beer?
2 A He drank it in the car.
3 Q He drank it while he was driving?
4 A Yes.
5 Q And did -- did you notice anything unusual
6 about Jason while he was drinking and driving?
7 A He swerved a couple times.
8 Q And what was his apparent physical condition?
9 A He had a buzz. He wasn't wasted, he had a
10 buzz.
11 Q Okay. And did he do anything else besides
12 drink beer?
13 A He rolled a cigarette.
14 Q Okay. How many hands did he use to roll a
15 cigarette?
16 A Two.
17 Q Did he have his hands on the steering wheel
18 while he was doing that?
19 A No.
20 MR. O'CONNOR: Your Honor, may I approach the
21 witness?
22 THE COURT: Certainly.
23 (Whereupon,
24 Plaintiff Exhibit No. 1
25 was marked for identification.)
12
•
1 BY MR. O'CONNOR:
2 Q I am going to show you a set of photographs
3 marked as exhi bits, Plaintiff's Exhibit Number 1, and I
4 would ask you to describe what are in these photographs?
5 A This one is, they are both a beer can in the
6 car and a hugg ie in the middle of the -- in the console in
7 the middle of the seats.
8 Q And who took those pictures?
9 A Yes. Me. This one I am actually holding the
10 beer can.
11 Q Okay. And are those pictures a true and
12 accurate repre sentation of what you saw?
13 A Yeah.
14 Q In the first picture what are you holding?
15 A A Coors Light can.
16 Q And where was that in the car?
17 A In the car in the middle of the seats in the
18 console in a h uggie.
19 Q Okay. And the second picture, does that show
20 the same thing without your hand on it?
21 A Yes.
22 Q And the third photograph is, third and fourth
23 photographs ar e pictures of what?
24 A Of Jason drinking a beer while driving. The
25 fourth one he is drinking it. The third one he is just
13
•
•
1 holding it.
2 Q And then the fifth and sixth pictures, what
3 do they show?
4 A They show him rolling a cigarette while
5 driving.
6 Q The fifth picture actually -- one of the
7 pictures shows what, him putting --
8 A Tobacco into a paper.
9 Q And then the last picture shows what?
10 A Him lighting a cigarette using both hands.
11 Q Are those all pictures an accurate
12 representation of what you saw and photographed that night?
13 A Yes.
14 Q Now, where did Jason take you that night?
15 A To a bar in Dillsburg.
16 Q And what did you do after you got there?
17 A Drank.
18 Q What did he do? Did he continue drinking
19 while you were there?
20 A Yeah, two beers.
21 Q Now, how do you relate -- how do you rate
22 Melissa as a mo ther?
23 A I think she is a really good mother.
24 Q Would you trust Melissa to take care of your
25 child for you?
14
I A Yes, I have in the past.
2 Q Would you trust Jason to take care of your
3 child?
4 A No.
5 MR. O'CONNOR: That is all the questions I
6 have.
7 CROSS-EXAMINATION
8 BY MS. SUMPLE- SULLIVAN:
9 Q I just have a few quick questions.
10 In regards to the pit bull episode that you
11 indicated was before Breanna was born?
12 A Yes.
13 Q Did you make any report to the Humane Society
14 or any other o fficial about the abuse that you saw?
15 A No.
16 Q At that time then you did not believe the
17 abuse was that significant to warrant any kind of authority,
18 is that correc t?
19 A No -- yeah.
20 Q Okay. In regards to your contact with Jason
21 after the time period that Melissa had vacated the home, you
22 had a personal relationship with Jason and would go out with
23 him as a friend, is that correct?
24 A Yeah, I went out with him once.
25 Q Okay. And the time that he called you in
15
•
11
1 June of 2005, you never went to that party?
2 A No.
3 Q Did you ever talk to Breanna on that date
4 that you made that call?
5 A No.
6 Q Do you know whether she was in the household?
7 A No.
8 Q So you are just assuming that because she
9 wasn' t with Missy that she was at the house at that time
10 period, is that correct?
11 A I guess, yeah.
12 Q In regards to these pictures that have been
13 marked as Exhibit 1, how did you take these pictures?
14 A With a camera, a camcorder.
15 Q With a camcorder. And did Melissa ask you to
16 take these pictures?
17 A Yes.
18 Q So basically you were going out on a date
19 with her ex-boyfriend and she asked you to take pictures of
20 what was occurring during that date?
21 A Yes.
22 Q And in regards to the beer, did you object at
23 that time period in regards to him taking a beer in the car?
24 A No.
25 Q And, again, did you object at that time for
16
• •
1 him to roll a cigarette?
2 A No.
3 Q Did you feel at fear or risk at any time that
4 you were in th e car with him?
5 A Just one time when he swerved.
6 Q Did you ask him to let you out?
7 A No.
8 Q When you went to the bar and drank -- were
9 these pictures taken on the way to the bar?
10 A To the bar.
11 Q So you sat with him in the car and watched
12 him drink, you went to the bar and you had a couple beers
13 there, I think you said two?
14 A Yep.
15 Q And then you came home --
16 A Yes.
17 Q -- is that correct? Did you drive home with
18 him at that po int?
19 A Yes.
20 Q So you weren't in fear at that point to get
21 back in the ca r after he had two beers at the bar?
22 A No.
23 MS. SUMPLE-SULLIVAN: No further questions.
24 THE COURT: Any redirect?
25 REDIRECT EXAMINATION
17
1 BY MR. O'CONNOR:
2 Q Were you willing, if you were in fear --
3 which would be your primary concern, to get the pictures for
4 Melissa?
5 A I was there to get the pictures for Melissa.
6 Q Have you ever reported any incident of animal
7 abuse to the Humane Society?
8 A No.
9 Q Do you ever see yourself as doing that in the
10 future?
11 A Reporting animal abuse? I never have. I
12 can't tell you if I ever would. I don't know.
13 MR. O'CONNOR: That is all the questions I
14 have.
15 MS. SUMPLE-SULLIVAN: Nothing further.
16 THE COURT: Thank you.
17 MR. O'CONNOR: Your Honor, Ms. Colebaugh has
18 children to pick up from school. I was wondering if she
19 could be dismissed from the courtroom.
20 THE COURT: Any objection?
21 MS. SUMPLE-SULLIVAN: Nope.
22 THE COURT: You can go.
23 MR. O'CONNOR: Your Honor, the plaintiff
24 calls Rhonda Blumenstein.
25 Whereupon,
18
•
•
1 RHONDA BLUMENSTEIN
2 having been duly sworn, testified as follows:
3 DIRECT EXAMINATION
4 BY MR. O'CONNOR:
5 Q Would you state your name for the Court,
6 please?
7 A Rhonda Blumenstein.
8 Q Would you spell that?
9 A B-1-u-m-e-n-s-t-e-i-n.
10 Q Where do you live?
11 A 3 Birch Street, Enola, Pa.
12 Q And where is that in relation to Jason's
13 residence?
14 A I am his neighbor.
15 Q Do you live directly across the street?
16 A Yes.
17 Q And you are here under subpoena, is that
18 correct?
19 A Yes.
20 Q You would prefer not to be here?
21 A Yes.
22 Q Have you on occasion -- did you have any
23 occasion to see Jason mistreat his dog, Dixie, in the past?
24 A Yes, I have.
25 Q And where were you located when you saw that?
19
•
CJ
1 A I was across the street at my house.
2 Q And did you have a clear view of what
3 happened?
4 A Yes, I did.
5 Q Was your daughter there also with you?
6 A I don't remember. I don't remember if she
7 was or not.
8 Q What is the age of your daughter?
9 A She is fifteen.
10 Q And what did you see on that occasion?
11 A I saw Jason was pulling in from, coming from
12 work. He got out of his Jeep, and Dixie and Layla both were
13 barking and he kicked them both in the ribs.
14 Q And how did the dogs react to that?
15 A Dixie was very, very hurt, but Layla just,
16 she didn't seem to be affected by it that much.
17 Q What time of day was that?
18 A About four.
19 Q Okay. And how was -- how was Jason dressed?
20 A In work clothes.
21 Q Was it apparent that he had just come from
22 his construction job?
23 A Yes.
24 Q And did you notice what kind of footwear he
25 had on?
20
• 0 ,
1 A Boots.
2 Q Okay. And what were the tips of those boots
3 like?
4 A Probably steel toe.
5 Q Have you seen his work boots in the past
6 before that?
7 A Probably on him I have, yes.
8 Q And what kind of tips did they have when you
9 saw them?
10 A Steel toe. I think that is required for --
11 my husband does the same thing he does.
12 Q Okay. And did it appear that either dog
13 deserved to be kicked that way?
14 A No. They were just dogs. They were being
15 noisy and barki ng a lot.
16 Q Did you notice whether Breanna was there when
17 that took place ?
18 A No, I don't think she was. I honestly don't
19 remember.
20 Q Okay. Is it true that Jason --
21 MS. SUMPLE-SULLIVAN: I am going to object to
22 the form of the question.
23 BY MR. O'CONNOR :
24 Q Is it fair to say that Jason often comes to
25 the house and l eaves the house late at night?
21
• •
1 MS. SUMPLE-SULLIVAN: I am going to object to
2 the form of t he question.
3 THE WITNESS: Yes.
4 THE COURT: Well, it is not the form, it's
5 leading. Go ahead.
6 THE WITNESS: Yes.
7 MR. O'CONNOR: That is all the questions I
8 have.
9 CROSS-EXAMINATION
10 BY MS. SUMPLE -SULLIVAN:
11 Q Ms. Blumenstein, do you know whether or not
12 the animal wa s taken to a vet or it got any kind of medical
13 treatment for the time period that you saw him kick the dog?
14 A No, I don't know. I don't believe so.
15 Q Okay. So when you said that it was hurt --
16 A Right.
17 Q -- it rolled over or cried?
18 A Yeah, she was squealing.
19 Q Okay. And you made no reports to any kind of
20 animal author ities?
21 A No, I didn't.
22 Q Now, you observe Jason on a daily basis being
23 his neighbor, is that correct?
24 A Yes, I do.
25 Q Have you had an opportunity to review or see
22
I him in his interaction with this child?
2 A Yes, I have.
3 Q Could you describe for the Judge what kind of
4 father you s ee him being?
5 A He seems very caring and very loving. She is
6 always with him when I see them outside together.
7 Q Have you ever seen him do anything physical
8 against her?
9 A Never.
10 Q Against the child?
11 A Never.
12 Q Have you ever heard him act in any way,
13 discipl ine h er in a way that you felt was inappropriate?
14 A No.
15 MS. SUMPLE-SULLIVAN: No further questions.
16 MR. O'CONNOR: I have no questions.
17 THE COURT: Thank you.
18 THE WITNESS: I need to leave. It was me
19 instead of - -
20 THE COURT: The witness has asked to be
21 excused . Is there any objection?
22 MS. SUMPLE-SULLIVAN: No problem.
23 THE COURT: Go ahead.
24 THE WITNESS: Thank you.
25 MR. O'CONNOR: Your Honor, I call Melissa
23
1 Lindquist to the stand.
2 Whereupon,
3 MELISSA LINDQUIST
4 having been duly sworn, testified as follows:
5 DIRECT EXAMINATION
6 BY MR. O'CONNOR:
7 Q Would you state your name for the record?
8 A Melissa Lindquist.
9 Q And would you spell that?
10 A My last name is spelled L-i-n-d-q-u-i-s-t.
11 Q Where do you live?
12 A I live on 6 South 17 Street, first floor.
13 Q You are the mother of the child Breanna?
14 A Yes.
15 Q What is your present custody arrangement?
16 A We have a shared 50/50 arrangement.
17 Q And out of each two week cycle, does that
18 mean you each have an equal number of nights?
19 A Yes.
20 Q So that would be seven every two weeks cycle?
21 A Yes.
22 Q And how did it come about that you came into
23 that shared cu stody arrangement?
24 A I worked a twelve hour shift and I would take
25 Breanna to the daycare, and Jason would go and get her
24
• •
1 before I was able to get Breanna. And I wouldn't be able to
2 get her back until he dropped her off to my house. When his
3 nights were, you know, when I had off work, he would bring
4 her over then .
5 Q And this shared custody arrangement, when did
6 that go into effect?
7 A It went into effect right when I left.
8 Q And when was that?
9 A February 15 of 2005.
10 Q And did you and Jason discuss that custody
11 arrangement?
12 A Yes.
13 Q Were you both satisfied with it?
14 A I was not.
15 Q Did you eventually go along with it?
16 A I had no choice.
17 Q And why is that?
18 A I couldn't keep her away from him, and I mean
19 I didn't have a choice. I had to work night shift. So that
20 the child wen t with him. You know, I wanted her all the
21 time. I didn 't have a choice whether or not she went with
22 him.
23 Q At any point in time did you feel
24 intimidated?
25 A Yes, absolutely. The first week that I
25
• 0
1 separated with him, he dropped her off on a Friday evening
2 and I had to work the next day, he said he had a meeting, a
3 union meeting to go to, and he dropped her off for me to
4 watch her. And I didn't know whether to take her to daycare
5 the next day. So I made arrangements for her to go to
6 daycare cause I didn't know if he was coming back to get her
7 after work the next day.
8 That morning -- it was that morning he called
9 me on my way to work and threatened to take Breanna out of
10 daycare and not give her back to me. And he came to the
11 house and -- I went to the daycare, got Breanna, cause I
12 feared that he was going to take her and not give her back.
13 So I went to the daycare and got her. And he showed up at
14 my house and pushed my door open and took her out of my
15 home.
16 So, yeah, I did fear -- I was afraid of what
17 would happen, you know, I was afraid that he would take her
18 and not give her back to me. So I went along with it. And
19 I decided to go get an attorney and take it to the court
20 system.
21 Q Did he make any conditions on giving Breanna
22 back to you?
23 A I'm not sure I understand the question.
24 Q Was he seeking some sort of an agreement from
25 you at the time that he threatened not to give Breanna back?
26
• 0
1 A He wanted the 50/50 custody arrangement.
2 Q Now, in addition to filing for custody, at
3 that particular time, did you file any other legal papers?
4 A Yes, I filed for child support to help with
5 the child daycare.
6 Q And was that before that incident?
7 A I don't remember. I don't believe so, no.
8 Cause at first he told me that he was going to give me
9 $80.00 a week and we were going to try to deal with it out
10 of court. And when it came time to pay that money, he
11 refused to give me money.
12 He tried to give the baby sitter one check
13 for forty dollars. And I, I said, well, you know, that is
14 not going to help when, come income tax time when it comes
15 to claim the child. Then he told me -- I said I was going
16 to go and file a complaint for support. And he told me not
17 to cash the check, that he was going to have it canceled.
18 So I hadn't received anything then. And I, I went and filed
19 then for support.
20 Q Okay. And during each two week cycle of
21 custody, who has more time with Breanna?
22 A I do.
23 Q And what is the reason for that?
24 A I work seven out of fourteen days and on the
25 days that I have off, I keep my daughter. I don't send her
27
•
1 to daycare, I keep her, so I have the full days with her and
2 she stays with me.
3 Q Okay. When Jason has custody, where is the
4 child during the day?
5 A She goes to daycare until approximately 4:30,
6 and then he goes to get her.
7 Q Now, sometimes during the weeks, you have off
8 work the night and then the following day?
9 A Yes.
10 Q And on that day you would -- you are entitled
11 to custody under the present arrangement, is that correct?
12 A Yes. I go pick Breanna up, I see her pretty
13 much every day except for weekends when I am on night shift
14 cause I wake up early to go and get her and spend a few
15 hours with her before she has to go away for the night. 1
16 feed her supper and I make sure she has a bath before she
17 leaves.
18 Q Now, on the days that you have off work and
19 if Jason had custody the previous day, when do you receive
20 Breanna? When does Jason drop Breanna off?
21 A In the morning around -- well, it varies
22 depending on job site. There has been times where it is
23 5:30 or 6:30 -- 6:30 has been the latest a.m.
24 Q And on those days where you have the
25 visitation rights, have you requested from Jason that you be
28
• 0
1 allowed to pick up Breanna the night before?
2 A Oh, yes, absolutely. I want her -- I have
3 called him nights that I did have to get up early so I could
4 have her. But, yes.
5 Q And what is the reason that you would like to
6 have her before bedtime the night before?
7 A I would like to have her so she, you know,
8 she doesn't have to get up that early. She is two.
9 Q What has been Jason's response to this
10 request?
11 A It is negative. He won't allow her to stay
12 over at my house to avoid the early drop off time because he
13 needs to have his nights.
14 Q Now, you lived with Jason from the year 2000
15 to March of 2005, is that right?
16 A Yes.
17 Q That's approximately --
18 A I don't know if I lived with him from 2000 --
19 I would say we lived together for approximately four years.
20 We have been together, but not lived together.
21 Q Okay. So Breanna was born March 21, 2003?
22 A Yes.
23 Q So you were together a little over two years
24 since Breanna has been born?
25 A Yes.
29
0
1 Q And so you lived with him before that for
2 about two years?
3 A Yes.
4 Q And after Breanna was born how did Jason
5 interact with you and the baby?
6 A He didn't. He was hardly ever there.
7 Q Did he help you in taking care of the baby at
8 all?
9 A No.
10 Q What were his drinking habits?
11 A He drank all the time. He would come home
12 four or five nights a week and been totally obliviated.
13 Q Was that before Breanna was born?
14 A Before and after.
15 Q Did you notice while you were with him a
16 tendency to put himself and others at risk?
17 A Absolutely.
18 Q There was -- was there an incident when
19 Breanna was about five months old with a motorcycle.
20 A Yes. We were in a motorcycle accident. The
21 situation happened, I was away for the weekend, I was
22 staying at my mother's house. I got home to Jason's, and I
23 believe it was in the afternoon. We got home, there was a
24 message on the answering machine that I was to go over to
25 his father's house for a cook out. So I packed Breanna up,
30
• 0
1 right away and I took her over there.
2 As soon as I got out of the car, he took
3 Breanna away from me, handed me a motorcycle helmet and
4 said, let's go for a ride, dad's cooking steaks on the
5 grill, by time we get back, they will be done. And it
6 happened very quickly.
7 I put my helmet on and we went down the road
8 for about ten minutes and we wrecked. And the last thing I
9 can remember about the accident really is that I remember
10 seeing the -- I think it was a white van and we almost hit
11 it head-on. And I can remember seeing it and I closed my
12 eyes. And then the next thing I knew I was laying on the
13 ground. I couldn't move my leg. And he leaned over top of
14 me and he told me to tell the cop that I was driving. And I
15 smelled the beer on him then. And it hurt really bad.
16 Breanna was five months old when that happened.
17 Q Was there another incident with the
18 motorcycle with Jason giving a ride to Breanna?
19 A Yes. That situation happened, I was actually
20 the one that took the photograph. I walked outside and they
21 were out there. He was out on the street driving with her.
22 I think this was the -- there was a six month period where
23 Jason went through a period of sobriety to where, you know,
24 he was trying to not drink and stuff. And this actually
25 happened at that time.
31
• 0
1 And it was right around the time there was
2 another incident, there was a canoe trip that was, that had
3 taken place and it was right around the same period of time.
4 I took those pictures for, you know, I didn't believe it was
5 going to last, the sobriety was going to last, and I took
6 those pictures for that reason. Because I knew I would be
7 here some day.
8 MR. O'CONNOR: Your Honor, may I approach the
9 witness?
10 THE COURT: Surely.
li BY MR. O'CONNOR:
12 Q Melissa, I am going to show you a set of
13 photographs marked Plaintiff Exhibit Number 2. Would you
14 please describe what are in these three photographs?
15 A It is Jason driving Breanna down the street
16 on a motorcycle.
17 Q And you are describing the first two
18 pictures?
19 A Yes. The second -- or the third --
20 Q Let me ask you another question about the
21 first two.
22 A Sure.
23 Q What are they wearing in those pictures?
24 A Jason is wearing a T-shirt and pants with
25 sneakers. He has safety glasses on top of his head. And
32
0 0
1 Breanna is wearing a onesey.
2 Q Do either the father or the child have
3 helmets on?
4 A No.
5 Q And did that take place before the current
6 helmet law went into effect?
7 A Yes, I believe so. I believe it did.
8 Q What -- when did you take those pictures?
9 A I can't be sure. I know this happened after
10 he was going through his sobriety period.
11 Q Well, did it happen before you separated?
12 A Yes, it did. It happened before we
13 separated.
14 Q And could you describe what is in the third
15 photograph?
16 A The third picture is a canoe trip that he
17 took my daughter on. I had to work night shift that
18 weekend. And he had told me that he was going to take
19 Breanna on a canoe trip. And at first I didn't object. I
20 was really ecstatic that he actually was taking his daughter
21 to do something with him and her.
22 When I got to work, I found out that the
23 river was supposed to rise to flood stage that night. And I
24 panicked and I called the cell phone and tried to get ahold
25 of him. I got in contact with him and told him to take
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
Breanna home, that the water was too high.
I asked him probably three times to take her
home, and he said that he was a certified diver and that
everything would be fine. And I tried calling him numerous
times throughout the night and I could not get ahold of him.
The next day I found out that his cell phone
fell in the water and that was why I couldn't get ahold of
him. Then I remember that morning, I drove up and down the
river looking for them, crying cause I was worried about
her.
Q And describe what you see in the photo? Who
do you see in the picture?
A Breanna.
Q And Breanna is sitting where?
A She is in the canoe.
Q And where is the canoe in relation to the
water?
A
Q
A
Q
from the photo?
A
Q
A
It is about halfway in the water.
Is Breanna wearing a safety vest?
No, it is laying in the boat.
And what is the apparent height of the water
Flood stage.
Where did you get this photograph?
He took it.
34
• •
1 Q Did he give it to you?
2 A It was my camera, so I guess. He didn't -- I
3 just took it. It was my camera. I had it developed.
4 Q Okay. You didn't take the picture?
5 A No.
6 Q The two pictures that you looked at with
7 Jason and Breanna on the motorcycle, are they true and
8 accurate representation of what you saw?
g A Yes, they are.
10 Q Thank you. Does Jason have anger problems in
11 your estimati on?
12 A Yes, he does.
13 Q Does he have a tendency to take those out on
14 others?
15 A Yes.
16 Q And has he taken his anger out on you?
17 A Yes.
18 Q Can you describe any incident?
19 A There was an incident where we -- I am not
20 positive what we were arguing about. It was up in the
21 living room. We argued. I can't remember exactly what it
22 was about. I went downstairs. We had a shower downstairs
23 and I went do wnstairs to get a shower. I think I was about
24 six or seven months pregnant at this time. And I went
25 downstairs.
35
• 0
1 Out of anger, I slammed the door shut behind
2 me to get a s hower. I heard him come down the steps, he
3 opened up the door, he grabbed me ahold by my throat and
4 pushed me against the wall. And he punched a hole in the
5 wall and told me that I was disrespectful.
6 Q Did he hurt you?
7 A He hurt my heart.
8 Q Has he taken the anger out on his dogs?
9 A Yes.
10 Q And how many dogs did he have?
11 A We had three dogs.
12 Q And can you describe what he did to the dogs?
13 A I have seen him punch all three of them. I
14 have seen him kick them. I have seen him throw them.
15 Q What kind of dogs did he have?
16 A We had two red bone coon hounds and a pit
17 bull.
18 Q Are they full grown dogs or puppies or what?
19 A Layla was six months old when we got her.
20 Dixie was a pu ppy when we got her, and Okie was a puppy when
21 we got him .
22 Q And what happened to those dogs?
23 A We had to get rid of Layla because she showed
24 her teeth at B reanna. Dixie, he still has Dixie. Okie, we
25 got rid of him , he was about four months old when we got rid
36
• •
1 of him. It was shortly before -- actually I had already --
2 I think I already left when we got rid of him.
3 Q And when he would do these things to the
4 dogs, when would he hit them, slam them against the wall,
5 kick them, was he trying, in your opinion, to hurt them?
6 A I don't think he was trying to hurt them. I
7 just think he lost his temper. I can't say for sure. I am
8 not him. But I don't think he actually tried to hurt them.
9 Q Well, in your opinion, were the dogs hurt?
10 A Yes. There were a few occasions where I
11 thought that there was the possibility that there could be
12 broken bones.
13 I remember one particular incident that
14 frightened me. It was two weeks, two weeks prior to getting
15 rid of Okie, the puppy we had. He was in the living room
16 chewing on my shoe, and Jason hit him so hard with his fist
17 I thought for sure he had a broken rib or something. And
18 Breanna was standing beside me watching him do that. And I
19 asked him, I said, why do you do that? Why did we even get
20 another puppy when you act like this. I don't want her to
21 see this.
22 Q Did he beat the dogs other times in front of
23 Breanna?
24 A I can remember two or three occasions where
25 the dogs were hit. I can remember that particular instance
37
•
1 though because Breanna -- I mean Breanna was standing right
2 beside me, and she watched the whole thing. And I remember
3 thinking, man, look at her, she is going to see this, you
4 know. This is what she is going to see.
5 Q Do you think this is good for Breanna to see
6 this kind of stuff?
7 A No.
8 Q After Breanna was born for the two years or
9 so that you lived with Jason, did Jason help you in any way
10 in caring for the child?
11 A No.
12 Q Since you split up with Jason and he has
13 shared physical custody, what have you observed as far as
14 Breanna's condition goes?
15 A I'm not sure I can --
16 Q Do you have any observations that you made as
17 to the type of care that he is -- that Breanna is receiving
18 in Jason's presence?
19 A Well, I mean besides the fact that sometimes
20 he puts clothes on her that she wore when she was one.
21 Sometimes -- there was one occasion where her shoe was a
22 size and a half too small. She has had diaper rash a few
23 times. It concerned me because he had told me in the past
24 that Breanna was potty-trained at his house, and I couldn't
25 understand why she had diaper rash if she was potty-trained.
38
• 0
1 I would question him about it and he would get angry with me
2 and peel out of my driveway.
3 Q Did Breanna have a diaper rash when you would
4 drop Breanna off at Jason's or --
5 A No.
6 Q -- or Jason would get Breanna, but on those
7 occasions where the child had diaper rash, the diaper rash
8 showed up only after the child was returned?
9 A Yes. I would actually call the daycare and
10 find out from Linda if she had a red bottom when she came
11 there. The type of diaper rash is not a diaper rash to
12 where it is bleeding and oozing, it is just red, like
13 irritated. It is not anything that anybody would call
14 Children and Youth about or anything like that. It is just
15 a red bottom. And she never had that before unless she was
16 cutting teeth, and she has all her teeth. So there was no
17 reason for it.
18 MR. O'CONNOR: That is all the questions I
19 have.
20 CROSS-EXAMINATION
21 BY MS. SUMPLE-SULLIVAN:
22 Q Melissa, do you rent your property at 6 South
23 12th Street?
24 A I rent, yes.
25 Q So you don't own a home?
39
•
1 A No.
2 Q When you decided that you were going to leave
3 the home, Jason's home in Enola, you and he had worked out a
4 custody arrangement of a shared equal situation before you
5 left, isn't that true?
6 A We had spoke about it, an arrangement. He
7 wanted 50/50. I told him the only way that he would get
8 50/50 is if he stayed sober. And he did not. And that is
9 why we are here.
10 Q Okay. So you -- at the time that you left,
11 is it your testimony that he was sober?
12 A He -- I suspected that he had started
13 drinking two weeks before I left, although I could not prove
14 it. There were a couple occasions where he would stay out
15 all night long, and I would ask him where he was at, and he
16 told me that it was none of my business where he was at.
17 Q Isn't it true that you and Jason had agreed
18 to a shared equal arrangement which revolved around your
19 work schedule and that you changed your mind after you met
20 with your attorney and found out that you weren't going to
21 get support?
22 A No, because I got support.
23 Q For daycare?
24 A For daycare, yeah. That is what I wanted
25 from the day, the beginning --
40
• •
1 Q Now, again, just so that the Court will
2 understand y our work schedule, you work twelve hour shifts,
3 is that corr ect?
4 A Yes.
5 Q Seven days during the week?
6 A Seven out of fourteen days --
7 Q Right.
8 A -- I work.
9 Q So you are off -- you work twelve hours on
10 Monday and T uesday one week?
11 A Yes.
12 Q And then you work twelve hours on Wednesday
13 and Thursday --
14 A Yes.
15 Q -- next week, and then you work an entire
16 weekend, is that correct?
17 A Uh-huh.
18 Q All right. Now, on those days that you are
19 working, you actually take that child to Linda Lee, the
20 daycare prov ider, by 5:00, 5:30 in the morning, isn't that
21 correct?
22 A 5:30 she can be dropped off, yes.
23 Q So you --
24 A She is at the doorstep at 5:30.
25 Q On those days that you take her to Linda
41
• •
1 Lee's at 5:30, do you ever allow Jason to have the child
2 overnight so that she isn't disrupted by having to get up to
3 go to your work place?
4 A Actually I think last week there was an
5 occasion where he needed, he was working nights or something
6 and I left her at his house until eight o'clock in the
7 morning.
8 Q Okay. So that was one occasion since March,
9 is that correct?
10 A Well, yeah, cause of his work schedule.
11 Q Now, usually he doesn't drop the child off at
12 the baby sitter until 6:00 or 6:30, is that correct?
13 A It could vary depending on what site he has
14 been at.
15 Q But typically in your conversations and
16 watching what was going on at the daycare, it has been
17 between 6:00 or 6:30 that the child gets there?
18 A Okay.
19 Q Do you know?
20 A I don't know for sure what time she -- he
21 drops her off. I know what time he drops her off at my
22 house. And I know he has dropped her off as early as 5:30.
23 Q Now, under the current schedule that exists,
24 there isn't a time when you are not working that you don't
25 have access to Breanna, isn't that true?
42
• •
1 A Excuse me?
2 Q During the schedule as it presently exists,
3 you are either sleeping or working or you have your child?
4 A Right, except when I am on daylight.
5 Q Okay.
6 A When I work daylight, there is no reason why
7 I couldn't hav e her.
8 Q And when do you believe that Jason should
9 have her?
10 A Well, I think that he should have her every
11 other weekend and when I am at work. I am her mom, and I
12 should have he r the majority of the time.
13 Q Okay. Because you are her mom?
14 A Because I take care of her, and I have always
15 taken care of her from the very beginning. Even when I was
16 living at his home and I was working this job, I still took
17 care of her th e majority of the time cause when mommy came
18 home, out the door he was.
19 Q Now, again, you had talked that he had no
20 involvement wi th the child while you were at the house. I
21 think you said after her birth. But you were working the
22 twelve hour sh ifts during that time period also?
23 A Yeah.
24 Q Okay.
25 A I was working.
43
• •
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 you had no baby sitter, Jason was the
actual person who was caring for the child while you were
working your twelve hour shift?
A That is not really all that true because when
I was with him, I had family watch her the majority of the
weekends that I was to work. When I was working on the
weekends, I had family watching her. I had family taking
her for weekends. And he would have friends watch her so he
could go do stuff. And he would have family watch her so he
could go do stuff. So --
Q Isn't it true that the only time that you had
your family watch was when he would go out and hunt?
A No, that is not true.
Q The issue about the motorcycle accident that
you described, were police involved in that accident?
A Yes.
Q And was he cited for any kind of alcohol use?
A No. He was cited for driving -- I am not
really sure what it was cause I didn't really see the
citation. I think it was driving too fast for conditions or
something --
Q
A
Okay.
-- pertaining to that
I am not really sure
what it was.
Q
Did he receive any points out of that
44
1 accident?
2 A I don't know.
3 Q But the police were there and did not cite
4 him for any alcohol violations, is that correct?
5 A No.
6 Q And isn't it true that is because he had one
7 beer before you guys got on the motorcycle?
8 A I have no idea how many he had. I was there
9 and gone. I didn't see him drink. I wasn't there long
10 enough to se e anything happen.
11 Q Now, you testified that he said tell the cop
12 you were dri ving. Did you tell the cop that?
13 A No.
14 Q Okay. And was -- did he beat you or be angry
15 with you bec ause of what went on here?
16 A No.
17 Q Okay. Now, you talk a lot about the dogs and
18 the anger th at he is supposed to be illustrating toward
19 these dogs. Jason horseplays with those dogs roughly, I
20 mean there i s no question about that, is that right?
21 A I have seen the difference between horseplay
22 and anger.
23 Q Have the dogs ever bit him or been aggressive
24 to him?
25 A Layla bit him.
45
• 0
1 Q Excuse me?
2 A Layla bit him.
3 Q As a result of being kicked?
4 A As a result of him hitting her.
5 Q That is the pit bull?
6 A Yes.
7 Q Were there -- were any of the animals taken
8 for a hospitali zation or any kind of vet treatment as a
9 result of actions that he had taken?
10 A No, thank God.
11 Q So, again, I want to just reinforce or review
12 the provisions as to why you have concerns about Jason being
13 a caregiver to your daughter. And that is that, one, you
14 said that he uses inappropriate clothes, clothes that are
15 too small?
16 A Excuse me? His inappropriate care?
17 Q Yes. Yes. Your attorney asked you what was
18 your concern about Jason's care of the child, and you said
19 about clothes.
20 A Uh-huh.
21 Q And about shoes?
22 A I just want to make sure she has everything
23 that she needs. And, you know, the diaper rash. And there
24 was one other o ccasion where she was dehydrated and I took
25 her to the doct or for that to make sure she was okay.
46
•
1 Q Again, the diaper rash issue arose out of
2 potty training, is that correct?
3 A Excuse me?
4 Q Did the diaper rash issue arise out of the
5 potty training process?
6 A I don't believe -- I don't believe so. She
7 wasn't even potty-trained at this time. He claimed that she
8 was, but as soon as she would come to my house, she would
9 pee her pants. So I don't believe that she was. She is
10 doing well now. Within the last couple weeks she goes to
11 the potty on a regular basis, but at that time, no.
12 MS. SUMPLE-SULLIVAN: I have nothing further,
13 Your Honor.
14 THE COURT: Any redirect?
15 REDIRECT EXAMINATION
16 BY MR. O'CONNOR:
17 Q Melissa, besides the fact that you are the
18 mother, are there any other concerns that make you desire to
19 have primary custody, to have more custody than you have now
20 and for Jason to have less?
21 A I want more custody of my daughter because I
22 feel she is safer in my home. I know that I won't put her
23 into danger. I know I am a good mom. And :I have always put
24 her before anything else in my life.
25 Q Do you believe Jason will put her in danger?
47
1 A He has the potential to do dangerous
2 activities. I don't believe that he would mean to harm her,
3 but I believe that the potential is there.
4 Q Has he put her in danger in the past?
5 A Yes.
6 Q And have you provided some examples of that?
7 A Yes, I have.
8 MR. O'CONNOR: That is all the questions I
9 have.
10 RECROSS-EXAMINATION
11 BY MS. SUMPLE- SULLIVAN:
12 Q Just in regards to the last question about
13 these examples -- again, this is you taking the picture of
14 him with the c hild on the motorcycle?
15 A Yes.
16 Q Is that correct? And, again, this is on a
17 dead end stree t in front of your house, is that correct?
18 A Yes.
19 Q So did he at all exit the house? He just
20 went up and do wn from the dead end to the entrance of the
21 road?
22 A That is correct.
23 Q What speed do you think he was going when he
24 had the child on there?
25 A Maybe ten miles an hour.
48
I Q Okay. And then in regards to the picture of
2 the child being in the raft, okay, did anything happen to
3 your daughter during the camping trip?
4 A No, thank God.
5 MS. SUMPLE-SULLIVAN: No further questions.
6 MR. O'CONNOR: I have no further questions.
7 THE COURT: Thank you, ma'am.
8 MR. O'CONNOR: Your Honor, the plaintiff
9 desires to call Carrie Barner to the stand.
10 Whereupon,
11 CARRIE BARNER
12 having been duly sworn, testified as follows:
13 DIRECT EXAMINATION
14 BY MR. O'CONNOR:
15 Q Would you state your name for the record?
16 A I am Carrie Barner, B-a-r-n-e-r.
17 Q And where do you live?
18 A I live at 208 Rose Street in Lock Haven.
19 Q How are you related to Melissa?
20 A I am her mother.
21 Q And did you have the opportunity to spend
22 time with Jason and Melissa when they were together?
23 A Yes.
24 Q And did you have a chance to observe Jason's
25 drinking habits?
49
• •
1 A Yes.
2 Q How would you describe his drinking habits?
3 A They -- he drank a lot, a lot.
4 Q Was this all the time?
5 A Well, I went down a lot on the weekends, and
6 there was time where I went between Christmas and the week
7 after Christmas, between Christmas and New Year's. T went
8 down over the Thanksgiving holiday. And, yeah, he drank a
9 lot.
10 Q When you say drank a lot, do you mean you saw
11 him drunk?
12 A He would come home, you know, -- like I would
13 go down on a Friday night, and a lot of the times he would
14 be gone on the weekends. He would go the whole weekend. He
15 would go down to I believe it was his Uncle Rusty's. You
16 know, just from hearing him talking, they were going to
17 party. He would come back on Sundays.
18 And then I was there sometimes when he was
19 away. Like he would go out on a Saturday or Sunday night
20 and he would come home and, yeah, he would be drunk.
21 Q How many times did you see him come home
22 drunk, would you estimate?
23 A Well, a lot of the times I wasn't there when
24 he actually came home. But the times that I was there,
25 probably, I would say four or five he would come home drunk.
50
• 0
1 Q And was he drunk around Breanna?
2 A She would be in bed most of the time when he
3 would come home cause he was gone, he was gone all weekend.
4 Q How would you describe the relationship
5 between Melissa and Breanna?
6 A Between my daughter?
7 Q Yes.
8 A She loves her mom. She is great. She's a
9 great mom. She would do anything for her daughter.
10 Q Okay. And did you have a chance to observe
11 the relationship between Jason and the child?
12 A Yeah, when Jason -- when Jason was there,
13 Jason, I have seen him come home after going for a whole
14 weekend and walk right by Breanna. Bree would be sitting on
15 the floor. He never picked her up. He never hugged her.
16 He walked right by her. He would go over and talk to the
17 dogs.
18 I have never in the time that Breanna was
19 born, I have never seen him change a diaper. I have never
20 seen him give her a bath. We would -- when I would go down,
21 our big thing is going to yard sales and, you know, do a
22 little bit of Christmas shopping. He wouldn't keep her.
23 She asked -- I there was once or twice she asked -- and he
24 wouldn't keep her. He would not. He wouldn't baby-sit her.
25 He would go do his own thing.
51
• •
1 Q Did he give any reason?
2 A Well, one time when we left he was in bed and
3 he abruptly got up and he said he was, but he was just in a
4 foul mood that we didn't leave her, we took her everywhere.
5 Q Did Melissa bring Breanna to your house
6 sometimes?
7 A She -- we would meet in -- right before
8 Selinsgrove we would meet. I would meet her when she would
9 have to work on the weekend. And sometimes it was Jason.
10 When she worked on the weekends, she would work her night
11 shift, she would get off at 6:30 and, after working -- there
12 was a few times after working a twelve hour shift, at 6:30
13 she had to come up and pick her up. She was the one that
14 would have to come and pick her up because he was doing
15 something.
16 Q When she visited your house, did she ever
17 stay for more than one day?
18 A Yes.
19 Q Stay overnight?
20 A Yes.
21 Q Did Jason ever call to see how she was?
22 A No. There was one time since I moved -- I
23 moved back in May, and there was one time that he called.
24 It was when Missy was up there. And he called and talked
25 briefly to Breanna, and that was it. But, no, he never
52
• •
1 called.
2 And if she -- if I was down there, to try to
3 call and get him on the cell phone, you wouldn't reach him.
4 And then there was a comment made that it was a cell phone
5 with a different ring, that he knew when she was calling.
6 Q Did you ever hear Breanna express her desire
7 to be with Jason or not to be with Jason?
8 A When I took her back after a weekend, she
9 screamed. And he just put her in the car seat and said
10 she'll be fine. And, yes, she did. She would say, I want
11 my mommy. No go to daddy's. No go to daddy's. It's all
12 the time, you know. And --
13 Q Are those her exact words as you recall?
14 A No go to daddy's. And when you put her coat
15 on to go out the door, anywhere you go, if you go to go to
16 the store, she thinks you are going, you know. No go to
17 daddy's.
18 Q Now, did you ever see Jason discipline
19 Breanna.
20 A There was one instance where we came home, we
21 were shopping and came home and she came in and she, she was
22 fussy. And he yelled at her, you know, go to your room, go
23 to your room. You know, it was no talking, no reason with
24 the child, it was go to your room, go to bed.
25 Q Do you know how old Breanna was during that
53
• •
1 incident?
2 A She was probably about a year and a half.
3 She was walkin g.
4 MR. O'CONNOR: That is all the questions I
5 have. Oh, one more question.
6 BY MR. O'CONNOR:
7 Q Did you ever see Jason discipline any of the
8 dogs?
9 A On one occasion, yes. Yeah, he picked her up
10 and threw her across the room. She le ft out a yelp, pretty
11 good yelp.
12 Q Which dog was that, do you know?
13 A It was the puppy.
14 Q Okay. Was that the pit bull?
15 A No, it was the puppy.
16 Q That was one of the coo ns.
17 A Yeah, the youngest one.
18 MR. O'CONNOR: That is all the questions I
19 have.
20 CROSS-EXAMINATI ON
21 BY MS. SUMPLE- SULLIVAN:
22 Q You live in Lock Haven, is that correct?
23 A Yes.
24 Q How long a ride is that to my client's home?
25 A A little bit over two h ours.
54
•
•
1 Q With what frequency would you visit?
2 A I was there at least once a month, if not
3 twice.
4 Q And did you stay at the house at that point?
5 A Yes.
6 Q Now, did do you that before Breanna was born
7 and after Br eanna was born?
8 A Yes.
9 Q And before Breanna was born -- did you notice
10 any change i n drinking before Breanna was born as -- excuse
11 me, did you notice any change in Jason's drinking which
12 occurred pri or to the time Breanna was born and after
13 Breanna was born?
14 A No.
15 Q So he drank the same amount?
16 A Yes.
17 Q From before she was born and after?
18 A Yes.
19 Q Okay. And is there any time that you had
20 seen him not drink at all?
21 A Well, there was one time when he was supposed
22 to be sober, but he would go out, he would take one of the
23 dogs out coo n hunting and not come back until the next
24 morning. He was gone all night.
25 Q Okay. So did you smell alcohol on him?
55
• •
1 A I wasn't up when he came home.
2 Q I can't hear you.
3 A I wasn't up when he came home.
4 Q Okay. So you think instead of coon hunting,
5 he was out drinking?
6 A That I can't say for sure.
7 Q Okay. So I am asking you for the time
8 periods that you saw him actively drink when you were
9 present in the household, did he change from when Breanna
10 was born to after Breanna was born?
11 When you were in the household with your
12 daughter, tell me the time periods, whether it was 2000 to
13 2003, 2003 to 2005, when did you actually observe him
14 drinking?
15 A It was all the time.
16 Q Okay. Well, you just testified that there
17 was a time period where he was I think you said allegedly
18 sober. What was that time period?
19 A That -- the time that he was supposed to go
20 and go coon hunting, that time?
21 Q No. You had testified that there was a time
22 where he was alleged to be sober. And I am asking you when
23 was that time, quantify that time period for me.
24 A That was -- it was before she left, and she
25 left in February. Maybe sometime in the month of January.
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
I'm guessing. It -- I am not sure of the time. I honestly
can't say. It was before she left that he was to be sober
cause we questioned, you know, when he came home, whether he
was or not.
Q And, again, you were down in their house two
times -- one or two times a month, and the only month that
you didn't see him drinking was in January, is that your
testimony?
A Uh-huh, yep.
Q January of 2005?
A Yes.
Q Okay. And then your daughter left in
February of 2005?
A Yes.
Q And every other time that you were there, you
saw him intoxicated?
A Not -- no, I am not saying I seen him drunk.
Q Okay. Let's quantify that. That's a good
point. What did -- I mean you never saw him drunk, is that
correct?
A He would come home a couple times drunk, yes.
Q Okay. How much would he actually drink
during one of your visits?
A When he was there, which was very, very, very
rarely he was there, it was probably -- I'm going to say
57
I about three or four times that I actually seen him.
2 Q Seen him actually drink, is that correct?
3 A No, he drank. I seen him, you know, drink
4 the beer, but drunk I am saying.
5 Q Okay. And I am asking you, did he always
6 drink beer?
7 A Yes.
8 Q Okay. How many -- in an average visit when
9 you would come to their house, how many drinks did you
10 actually see h im drink?
11 A See him drink, I can't really say for sure.
12 You know, I ca n't give you an amount. He would, he would
13 sit in one eve ning and drink I think seven or eight beers.
14 Q You personally have seen him --
15 A Yes.
16 Q -- drink seven or eight beers?
17 A Yes.
18 Q What is the date that you saw him do that?
19 Or approximate ? I'm not asking for June 22 of '89, but was
20 this in 2002, 2003, 2004, when?
21 A Well, I would have to say probably all of
22 those years. You know, there was times I went down there --
23 you know, I ca n't say a number.
24 Q Have you had any contact with Jason since
25 March of 2005?
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
A No.
Q Have you ever -- you had testified that the
child screams no go to daddy's, no go to daddy's. Have you
ever heard her call no go to mommy's?
A No.
Q Have you spoken with any person about the
child saying no go to mommy's? Have you talked to the baby
sitter, for instance, about whether she says no go to
mommy's?
A No, I have only ever seen the baby sitter one
time.
Q Does your daughter make any effort to
encourage the relationship between Jason and Breanna?
A Definitely.
Q What does she do to encourage that
relationship?
A She will talk about her daddy. She tries to
get her to, you know, you will have fun, you will go see the
dogs, you know.
Q And you have actually heard her say that?
A Yes. And I have actually heard her say no --
she used to get excited about going to see the dog. And
then I have actually heard her say, no go to daddy's, no go
see Dixie-Do -- that is the dog -- and I have heard her a
lot of times say that.
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
Q Have you seen your daughter discipline the
child?
A Yes
Q And
A She
about it, she will
MS.
BY MR. O'CONNOR:
what kind of discipline does she utilize:
gives her time out. Basically that is
give her time out.
SUMPLE-SULLIVAN: I have nothing further.
REDIRECT EXAMINATION
Q It was your earlier testimony that Jason
would go to Rusty's to drink, is that correct?
A That is the talk. That was the talk. I mean
I actually was never there, but that is what they wanted to
do.
Q Okay. So you didn't know actually where he
was, but you would see him come home sometimes?
A Right.
Q And you testified that he was drunk when he
would come home?
A A couple of times, yes.
Q Is there any way you could have known what he
was drinking when he was out?
A No.
MR. O'CONNOR: That is all the questions I
have.
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
MS. SUMPLE-SULLIVAN: Nothing further.
THE COURT: Thank you.
MR. O'CONNOR: Danielle Renaud.
Whereupon,
DANIELLE RENAUD
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. O'CONNOR:
Q Would you state your name for the record?
A Danielle Renaud.
Q And how do you spell that?
A R-e-n-a-u-d.
Q You live in Lock Haven, is that correct?
A Yes.
Q How long have you known Melissa or Jason?
A I have known Melissa since 1999, I worked
with her. And Jason I met through Miss when she moved up
here to Harrisburg.
Q So you have known Jason longer, is that
correct? You have known Jason longer than Melissa?
A No, I have known Melissa longer than Jason.
Q Okay. Did you run into Jason up in Mill Hall
after the birth of Breanna?
A Yes, I did.
Q After Breanna was born?
61
I A Yes.
2 Q And could you describe that incident?
3 A Well, I went to the Valley to shoot pool with
4 my friend, Becky. And when we walked in, it was about 5:30,
5 maybe a little bit later, it was in the afternoon, late
6 afternoon, I walked in with Becky and Jason was there. He
7 was sitting at the bar with a couple of his friends from
8 work or something. He was supposedly working up in State
9 College. And T talked to him. I said hi, how are you. And
10 you could tell he was already having a good buzz going at
11 5:30 in the afternoon. I don't know how long he was there.
12 Q When you say a good buzz, do you mean that he
13 -- it was obvious he had been drinking?
14 A Yes.
15 Q And did you see him drinking?
16 A Yes, I did.
17 Q Then what happened after that?
18 A He continued to hang around us and kept
19 putting his arm around me and telling me not to tell Miss
20 that I saw him there, and he was flirting with my friend
21 Becky. And she is married and has two kids, and she didn't
22 want anything to do with him. She was very annoyed.
23 Q How long were the two of you there at the
24 same time?
25 A 9:30 he left, around there.
62
• •
1 Q And approximately when did you arrive?
2 A At about 5:30.
3 Q So you saw him there four hours?
4 A Yes.
5 Q And you stated that he was drinking. Was he
6 drinking the entire time?
7 A Yes.
8 Q And the last time you saw him was 9:30?
9 A Yes.
10 Q And what condition was -- how would you
11 describe his condition by 9:30?
12 A He could barely walk. He was stumbling,
13 slurring his speech. He was very intoxicated.
14 Q Okay. After 9:30, did you see him again?
15 A No, I didn't.
16 Q And at 9:30 did you check to see if his car
17 was there?
18 A Yes, I did.
19 Q Was it there?
20 A No, it wasn't.
21 Q And so at that point both he and his car were
22 gone?
23 A Yes.
24 Q How was his speech when you saw him at 9:30?
25 A He couldn't even say complete sentences
63
• •
1 without messing the words up and slurring it together.
2 Q All right. Was there another incident then,
3 when you all we nt to Hershey park?
4 A Yes. We went to Hershey park, it was
5 probably 2002, 2003 -- 2002 I think. It was -- Miss was two
6 months pregnant at the time, and we went out the night
7 before. It was Miss, Jason, myself and one of my friends,
8 which was fine, we went out to eat and then we went home.
9 Well, the next morning, as soon as we woke
10 up, Jason had t o open a beer and drink a beer, first thing
11 in the morning. Before going to a family park, I thought
12 that was outrag eous. I didn't care for that at all.
13 Q How, how would you rate Melissa as a parent?
14 A She is a good mother.
15 Q Did you have the chance to observe her and
16 Breanna?
17 A Yes, yes, I have.
18 MR. O'CONNOR: That is all the questions I
19 have.
20 CROSS-EXAMINATION
21 BY MS. SUMPLE-S ULLIVAN:
22 Q Regarding the Hershey park episode, when you
23 got up that mor ning and you were all going to Hershey park,
24 that was to cel ebrate Jason's birthday, is that correct?
25 A I'm not quite sure.
64
1
2
3
9
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q It was -- that was Jason's birthday the day
that he dran k that --
A That weekend, yes.
Q Right. At Hershey park?
A Yes.
Q Melissa was pregnant, is that correct?
A Yes.
Q Did she ride the rides?
A She rode one.
Q Roller coaster?
A Yes.
Q Against the expressed direction of Hershey
park not to ride that roller coaster, isn't that correct?
A I'm not sure. I didn't see anything.
Q You didn't see signs?
A No.
MS. SUMPLE-SULLIVAN: No other questions.
THE COURT: Anything else?
MR. O'CONNOR: Nothing further for this
witness.
THE COURT:
should take a brief recess.
MR. O'CONNOR
would like to Celice Horn.
Whereupon,
Fine. This is a good point we
Your Honor, the plaintiff
65
•
1 CELICE HORN
2 having be en duly sworn, testified as follows:
3 DIRECT EXAMINATION
4 BY MR. O' CON NOR:
5 Q Would you state your name for the record?
6 A Celice Horn.
7 Q How long have you known Melissa and Jason?
8 A I have known Melissa for two years. I have
9 only ever me t Jason once.
10 Q And have you seen Melissa and her baby
11 interact?
12 A Yes.
13 Q And what have you observed in that regard?
14 A I have observed a very pleasant little girl.
15 They have co me over and played with the puppies, and we have
16 gone out to eat.
17 Q And what is your impression of Melissa's
18 parenting sk ills?
19 A I think they are wonderful.
20 Q Have you had the opportunity to form any
21 opinion f rom your own observations about Jason's parenting
22 skills?
23 A I was with Breanna on one occasion where --
24 no, I hav e n ever witnessed any of his parenting skills, no.
25 Q Okay. Did Jason give you one of his dogs?
66
•
1 A Yes.
2 Q And which dog was that?
3 A That was the four month old puppy, Smoking
9 Okey, red bone coon hound.
5 Q Did you say that was the pit bull?
6 A No, the red bone coon hound.
7 Q Okay . And did he tell you why he was giving
8 it to you?
9 A He s aid he didn't have time.
10 Q Did he say anything about his ability to care
11 for the dog?
12 A No.
13 Q And what have you discovered about the dog?
19 A The dog is scared of my husband -- the dog
15 just turned a year old in October -- and he will shy away
16 frequently from my husband. And my husband has never beat
17 him. He smack ed hi m with a newspaper --
18 MS. SUMPLE-SULLIVAN: I am going to object to
19 the relevance.
20 THE COURT: I will tell the jury to disregard
21 it.
22 MR. O'CONNOR: That is all the questions I
23 have.
29 THE COURT: Okay. Cross-examine.
25 MS. SUMPLE-SULLIVAN: No questions.
67
• •
1 THE COURT: Thank you.
2 THE WITNESS: May I be excused?
3 MS. SUMPLE-SULLIVAN: No problem.
4 THE COURT: Okay.
5 MR. O'CONNOR: And the final witness for the
6 plaintiff, Y our Honor, Barney Penton.
7 Wh ereupon,
8 BARNEY PENTON
9 having been duly sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MR. O'CON NOR:
12 Q Would you state your name please?
13 A Barney Penton, P-e-n-t-o-n.
14 Q And where do you live?
15 A Camel, Pennsylvania.
16 Q Is that in Lycoming County?
17 A Lycoming County.
18 Q And how are you related to Melissa?
19 A Father.
20 Q Have you had the opportunity to witness the
21 relationship between Melissa and Breanna?
22 A Oh, yes, yes.
23 Q And how, what has been your observations in
24 that regard?
25 A Very, very good caregiver. The baby comes
68
• •
1 first. It has never been any question about that.
2 Q Okay. Have you had any occasion to witness
3 the relationship between Jason and the baby?
4 A On a few occasions.
5 Q And what were your observations about that?
6 A Typically Jason always had other priorities
7 or other things to do, and Melissa always took care of the
8 baby.
9 Q Did you ever have the opportunity to see
10 Jason drinking?
11 A Yes.
12 Q And how would you describe him when he is
13 drinking?
14 A After six or eight drinks probably it turns
15 into about a half hour of joke telling with another four or
16 five drinks, and then he passes out.
17 Q Have you seen this on more than one occasion?
18 A Yes.
19 Q Have you seen Jason interact with any of his
20 animals?
21 A Yes.
22 Q And could you describe what you saw?
23 A At my residence, there was a time when he had
24 both the dogs there and there was some other dogs there. A
25 fight broke out between the dogs, and he had to get into it
69
I physically with them and beat them apart.
2 MR. O'CONNOR: I have no further questions.
3 MS. SUMPLE-SULLIVAN: No questions.
4 THE COURT: Thank you. You may step down.
5 MR. O'CONNOR: I don't have any other
6 witnesses, Your Honor.
7 MS. SUMPLE-SULLIVAN: I am going to call
8 Jason Kessler.
9 Whereupon,
10 JASON EUGENE KESLER
11 having been duly sworn, testified as follows:
12 DIRECT EXAMINATION
13 BY MS. SUMPLE-SULLIVAN:
14 Q Would you state your full name?
15 A Jason Eugene Kessler.
16 Q And your address, Mr. Kessler?
17 A 4 Bridge Street, Enola, Pennsylvania.
18 Q And what is your date of birth?
19 A August 18, 1978.
20 Q And how old are you?
21 A 27.
22 Q And how long have you resided at the Birch
23 Street address?
24 A Approximately three years.
25 Q And do you own that home?
70
• •
1 A Yes.
2 Q And when did you purchase it?
3 A The spring of 2002.
4 Q And who resides in the home with you?
5 A Just my daughter and myself.
6 Q And briefly describe your educational
7 background for the Judge?
8 A I graduated high school from Bald Eagle
9 Nittany in '96, where I attended the vocational school
10 training for the field of plumbing. And then after that I
11 joined the Marine Corps where I was in basic training, and I
12 took various college courses while I was in the military.
13 After completion of my time in the military,
14 I took a little break, and then I joined a drain cleaning
15 company where I learned on the job for about a year and a
16 half. And then I was finally accepted into the Local 520
17 Plumber and Pipe Fitter Union where I am in my fourth
18 apprenticeship year right now.
19 Q Now, could you describe -- you graduated in
20 '96, and you were in the Marine Corps from November of '96
21 to November of 2000, is that correct?
22 A Yes.
23 Q Okay. And then you worked for a drain
24 company?
25 A Yes.
71
CJ
•
1 Q And then you went in the apprentice --
2 A That's correct.
3 Q Who is your actual employer currently?
4 A Ryan Mechanical.
5 Q And do you have various assignments by being
6 in the Union ?
7 A Yes. I am an independent contractor. What
8 happens is w hen there is a call for men, they call me. I go
9 work for the company. When the job is over, I either go to
10 another job for the same company or I go back to my Union
11 hall where I get hired out of the Union hall again.
12 Q Over the last few years, have you had
13 extensive pe riods of unemployment?
14 A Two months was the longest that I recall.
15 Q And what are your typical hours that you
16 work?
17 A Seven o'clock to 3:30. 7:00 a.m. to 3:30
18 p.m.
19 Q And, again, that depends on where the site of
20 the location of your work assignment is, is that correct?
21 A Yes. My current employer is very flexible.
22 If there is night work to be done, he works -- lets me work
23 around my sc hedule with Breanna so I can work nights when I
24 don't have her and then days when I do have her.
25 Q And just your health, what is your health?
72
•
1 A Excellent.
2 Q You and Melissa have been together since
3 2000, is that correct?
4 A Yes.
5 Q Can you describe a little bit for the Judge
6 when your relationship started and the circumstances of that
7 relationship?
8 A We met through my mother. Then we dated. I
9 took her to the Marine Corps Ball, and I got out of the
10 Marine Corps. We would stay at each others -- her mother's
11 house or my mother's house. And then she got an apartment.
12 I was ready to move down here and start my
13 career. She didn't want to be alone so I stayed, extended
14 the amount of time there with her. And then finally my
15 unemployment was coming close to running out, I had to get a
16 job. I moved down here. She just read through the paper
17 and saw dollar signs or opportunities down here. She wanted
18 to move down here. Never really asked her to, but I didn't
19 object to it either. I was glad she did.
20 We got an apartment in New Kingstown. We
21 lived there where I was working sixteen, eighteen hour days,
22 and I'd just come home and the place was always a wreck.
23 And she wanted a house. And I would always say, why should
24 I buy a house if you don't take care of a one bedroom
25 apartment.
73
• •
1 Well, I bought a house cause we were planning
2 to have a family. At this point we started planning to have
3 Breanna and moved into the house. Nothing else really
4 changed. You know, I would work a good bit of hours, come
5 home, everything was messed up.
6 Q Let's take it a little bit slower. So you
7 met her in 2000, you moved to this area, when, 2001?
8 A Yes.
9 Q Okay. And then you started to plan for a
10 family, is that correct?
11 A Yes.
12 Q Did you ever marry?
13 A No. We had -- I bought her a ring and we had
14 planned to marry, but she changed her mind. And then she
15 wanted to be engaged again, and it was tough cause there was
16 -- I didn't -- there was too many interruptions in our
17 relationship where she was leaving, she was going back, she
18 was staying, she was going home to live, she was staying.
19 Before Breanna was born, she would tell me
20 that and I said, if you don't want to be here, you are more
21 than welcome to leave.
22 After Breanna was born was a different story.
23 I would do whatever it took basically to get her to stay
24 because I wanted to be a part of my daughter's life.
25 Until finally in February of 2005, she had
74
• 0
1 decided to leave, and I told her if she didn't want to be
2 there, that none of us were going to be happy if I just kept
3 continuing trying to get her to stay there. And everything
4 was, you know, she tried to blame everything on me drinking.
5 Which from August of '04 until January or February of '05, I
6 didn't consume alcohol. I took it out of the equation.
7 You know, my dad set me down and told me that
8 1 have a family and I need to be a man, and I can't be out
9 running around partying all the time, I need to take care of
10 my family. And that is why I decided that wasn't the
11 problem. She still wasn't happy, and she still wanted to
12 leave.
13 Q Now, again, let's talk a little bit about
14 with Breanna. While -- when she was conceived in June of
15 2002, did you party? Did you use alcohol during that time
16 period?
17 A Yes. Yes. When she was conceived and stuff,
18 and up to the point where she was conceived, we both went
19 out and we both drank.
20 Q Okay.
21 A And it wasn't for the first eight months to a
22 year I probably wasn't the father I should have been. But
23 after my dad set me down and stuff, and with her job, we
24 spent a lot of time together. If she would have left me
25 back then, I probably wouldn't be here right now. But we
75
• •
1 got really close.
2 Q Okay. So after you had -- you talk about
3 this talk with your dad. When did that occur?
4 A It was probably a few months before I quit
5 drinking totally.
6 Q Okay. And, again, during that time period,
7 you didn't consume alcohol at all?
8 A That's correct.
9 Q All right. Now, February comes and she
10 leaves.
11 A Yes.
12 Q Is that correct? Was there an agreement
13 between you on how custody was going to be handled?
14 A Yes. She did state that she wasn't going to
15 keep her from me and that we would have a 50/50
16 relationship.
17 Q And did you implement that when you -- when
18 she left the house?
19 A Yes. She left -- I was supposed to pick her
20 up on Saturday after that Union meeting, and she would not
21 let me have her. She wouldn't let me have her. And, yes,
22 the police were involved and, yes, I did demand that I had a
23 verbal agreement that she would not keep her from me because
24 I didn't want her to be able to keep her from me until this
25 day. And that is all I ask for.
76
• •
1 Q Okay. And since that time period, you have
2 been -- you have had a working custody arrangement, at least
3 since the conciliation, is that correct?
4 A Yes, for the most part there has been one.
5 Q Can you just describe for the Judge what that
6 includes? Is there any issue with the alternating weekends?
7 A No, the alternating weekends is fine. And
8 the time is fine with me, it's just that on my days, if I
9 have a family member visiting, she insists that since she is
10 not working I drop Breanna off when they are actually my
11 days. Where I don't see why she couldn't spend that time
12 with my family member while I am at work and then, you know,
13 stay at my house until I come home. I don't see where that
14 would be a problem.
15 Q So you are saying that if she isn't working,
16 she will take the child, even if it is on your specific day?
17 A Yeah. Cause she follows the time lines dot
18 to dot. I have got to be there at 6:30. I can't pick her
19 up before 4:30, even if I am on my way through, home from
20 work, and it is a quarter after four, I have got to sit
21 somewhere until 4:30 and then pick her up.
22 Q Has she been flexible in granting any
23 additional time to you during the last couple months?
24 A Not often. Like she said, I did have her
25 until eight in the morning recently. But not very often.
77
• •
1 Usually if we set a give and take, she gets what she
2 bargained for, then when it's my turn, I don't get anything,
3 and there is nothing I can really do about it.
4 Q This schedule you are implementing now is you
5 have her when Melissa is working basically?
6 A Yes.
7 Q Okay. Can you describe, do you have any
8 problem in handling her, taking her to the daycare or
9 raising her, or any of those issues while on those days that
10 you have her?
11 A No. I have no problems at all.
12 Q Can you describe for the Judge what kind of
13 things you do for her or what your typical day would be to
14 get her in your days of custody?
15 A Most of the time when I pick her up from
16 daycare or her mother's, we will either go to the park or
17 over the summer, a lot of times we would just go straight
18 home and work in the garden. She really enjoys out there
19 picking tomatoes and picking green beans and she enjoys it.
20 And playing in the yard. I have a nice yard, she can ride
21 her Jeep around.
22 Then I cook supper. They are usually the
23 only two days or three days a week I cook is when I have
24 her. And then maybe we will watch one of her movies and go
25 to bed. That is usually time to go to bed by then.
78
•
1 Q During the time period -- you say you cook
2 when you have her. Is your life different when you have her
3 and when you don't have her?
4 A Yeah. I don't stay home very much when I
5 don't have h er. I don't like being there alone. I go out
6 to eat with friends or whatever. I don't --
7 Q Do you drink when you have Breanna?
8 A Occasionally in the evenings before I go to
9 bed, I will have a couple, yes.
10 Q Okay. And where is she at that point?
11 A Usually in bed.
12 Q Now, let's talk a little bit about the
13 alcohol issu es. Have you ever been in a circumstance where
14 you have bee n disciplined or lost your job or any kind of
15 problem aris ing out of your alcohol use?
16 A No. With the exception I had a DUI in 2000.
17 Q Okay. Is that when you got out of the
18 service, is that correct?
19 A Yes.
20 Q Was that before or after the talk with your
21 dad?
22 A Oh, well before. That was before Breanna was
23 born.
24 Q Okay. And at this time period, have you ever
25 had any kind of driving charge or anything arising out of
79
•
1 abuse of alcohol?
2 A No. Not even a speeding ticket I haven't
3 had.
4 Q As part of these proceedings, did you undergo
5 or take any steps to determine whether or not you truly had
6 an alcohol problem?
7 A Yeah. I went and had an alcohol evaluation
8 done. And the guy asked me questions, I told him, that,
9 yes, I drink and, yeah, I have been intoxicated. And after
10 talking with him, he sent a letter saying that I did not
11 have a problem, and I do feel a hundred percent sure he is
12 correct.
13 Q Do you feel that your alcohol intake at all
14 puts Breanna at risk? Do you ever feel like you are not in
15 control, even because you may have drank the night before,
16 when she is with you?
17 A No.
18 Q Now, prior to the time that you guys
19 separated in March, you were -- there were many nights that
20 you were the sole caregiver for this child, is that correct?
21 A Yes.
22 Q And at that time period, has there ever been
23 an episode of any kind of problem arising with this child,
24 you know, she got hurt, there was any kind of -- any
25 occurrence that the Court should know about that would give
80
• •
1 credence to her, her fears that you are neglectful in your
2 handling of Br eanna?
3 A No.
4 Q Let's talk a little bit about the examples
5 that she raise d. I am going to show you Exhibit 2, which
6 was the photog raph in regards to the motorcycle. Can you
7 describe what that was all about?
8 A Yeah, she put her on the motorcycle with me
9 and then took pictures. And I thought it was kind of neat,
10 pictures of my little girl on my bike. I didn't see any
11 danger there.
12 Q You said she put the child on the bike?
13 A Yes.
14 Q And, again, what distance did you ride back
15 and forth with the child on the bike?
16 A Fifty yards.
17 Q The second picture of that was the child in
18 the canoe by t he water edge.
19 A Yes.
20 Q Can you describe for the Judge what occurred
21 during this ti me period?
22 A Oh, we packed up our stuff and we went down
23 to the water. And that particular stretch, I am pretty
24 familiar with it. It is actually a little better when it is
25 high. I have been down there this summer and it is low and
81
I there is rocks sticking up everywhere that can tumble you
2 over.
3 She had a life preserver on. I had a life
4 preserver on. And we floated down. We camped out. Woke up
5 in the morning. I made her breakfast over the fire. And
6 then we, we went the rest of the way and called -- I had
7 lost my cell phone so I called Melissa from a pay phone to
8 come pick us up.
9 Q And, again, did you understand that Melissa
10 was spastic about not being able to get in touch with you?
11 A Yes. When she called me, I was already
12 halfway down the river. I mean to paddle upstream would
13 have been next to impossible, and to float all the way down,
14 there was no sense in it. I mean it was getting dark.
15 Q And this is while you were still intact as a
16 family, is that correct?
17 A Yes.
18 Q And at the time period that this occurred,
19 did you have any special training in water certification?
20 A Yes. I have been trained with Naval Survivor
21 School. I am a certified scuba diver. I was one of the
22 higher class survival swimming in the Marine Corps also as
23 well as the Navy. And I swam my whole life and spent most
24 of it on that river. Most of my summers that is.
25 Q And did you believe that this child was at
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
any risk being with you in that canoe?
A No, I did not.
Q You talked a little bit about that you own
your home. Do you have -- you talked a little bit about the
house and housekeeping prior to the time that Melissa was
there and since Melissa has left. Can you just elaborate a
little bit? Do you maintain your own home?
A Yes, I do.
Q And do you clean? Do you take care of it?
A Yes. Mostly I clean in the evenings when I
have Breanna. After she goes to bed or something, I will
clean. You know, it is kind of tough to get, keep it
immaculate all the time. I got a garden and a yard to take
care of also. And I am a single parent, but I do the best I
can.
Q Now, there was an issue in the last couple
months where the child had contracted lice. Is that
correct?
A Yes.
Q And d
A No.
Q Okay.
concerns and how the
medical care for the
A I was
id you contract lice at your home?
Can you describe for the Judge the
lice issue developed and who sought
child as a result of the lice issue,
to pick up Breanna after Labor Day
83
• •
1 weekend, and when I called Melissa, she had said that
2 Breanna had got head lice. And she had had her for that
3 weekend, I had no signs of it. Nobody in my, that I was
4 around had any signs of it.
5 And so that day I went over, and even though
6 things were tense between her and I, I spent that whole day
7 -- well, a couple of hours that evening rooting through my
8 daughter's hair and Melissa's hair looking for these bugs.
9 And then the next night I had to check again.
10 And then when I got Breanna home, I had to go through her
11 hair. We got them all cleaned up.
12 And all she needed was a note from the doctor
13 to go back to daycare. And Melissa had gave me a note that
14 said that she hadn't been seen, when Linda required that she
15 had to be seen by a doctor before she goes back to daycare.
16 She has other children.
17 So I knew it wasn't going to fly, but I
18 called her just to check. I said, Linda, I got this letter
19 saying that she was not seen by a doctor, but she is okay to
20 go back to daycare. She said, I told Melissa that she had
21 to be seen.
22 So at this point I am making plans to go to
23 work the next day. She had to work. I had to work. I had
24 no daycare to take her to so I was going to go up to my
25 grandmother's and have her stay with my grandmother that
84
C?
11
1 day.
2 And I was going to drive three hours to go to
3 work, and then when I got home from work that evening, I was
4 hoping to make my doctor's appointment so she could go back
5 to daycare the next day. She said -- she didn't even say
6 her daughter, s he said, that F-in kid better be at my house
7 at six o'clock in the morning, leave her with Jess. I'll be
8 home at 6:30. And I said, well, that is where I believe the
9 lice came from and, no, I am not leaving her there.
10 Q And, again, was Jess the Jess that had
11 testified here?
12 A That was correct.
13 Q And that was the friend that had taken the
14 pictures of --
15 A That is correct.
16 Q -- of you, is that correct?
17 A Yes. And, well, the long and short of it is
18 I got in the do ctor at the last minute, I had to run -- I
19 had to just thr ow Breanna in the car seat, strap her in, and
20 run down to Goo d Hope Family Physician to catch them that
21 evening for an appointment. They scheduled me in at the
22 last minute, an d I got the note and she was able to go to
23 daycare. So I didn't have to go through all that. But it
24 was a big fight that didn't even need to be. It didn't
25 happen anyway. I was planning ahead, what am I going to do
85
• •
1 to go to work.
2 Q But, again, that kind of day-to-day emergency
3 situations, you know, dealing with the lice, dealing with
4 concerns or thi ngs that Breanna would need, you implement
5 those, you take care of those issues?
6 A Yes.
7 Q I am going to mark these pictures as
8 Defendant Exhib it 1, just ask you to identify them for the
9 record.
10 (Whereupon,
11 Defendant Exhibit No. 1
12 was marked for identification.)
13 BY MS. SUMPLE-S ULLIVAN:
14 Q Exhibit 1 consists of 16 photographs. Just
15 for the record, can you identify what those photos include?
16 A Just photos of my house and the outside and
17 inside. And, i f I remember correctly, Breanna's birthday
18 and pictures of me, myself.
19 Q Let's go through them. The first picture, is
20 that the exteri or of your home?
21 A Yes.
22 Q And the second picture, which I will mark as
23 B --
24 A That is your side yard.
25 Q -- is that your garden? In regards to the
86
• •
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
third picture, is that the kennel that you have at your home
for the dogs?
A Yes.
Q The next three pictures are basically what?
A My bedroom.
Q Your bedroom?
A Yes.
Q Then the next four pictures are pictures of
what, sir?
A Breanna's bedroom.
Q Okay. The next three pictures represent what
in your household?
A The living room.
Q Okay. And then the last, the next two
pictures are of?
A The kitchen.
Q And finally?
A The bathroom.
Q Okay. Does Breanna have her own room and
sleep in that room?
A Yes.
Q Okay. I need you to address just very
briefly this dog issue and the allegations against you
about, you know, this dog abuse and your anger problems.
Again, let me ask you, have you ever been
87
• •
1 disciplined or had any kind of employment issues as a result
2 of any kind of anger or hostility or physical violence
3 issues?
4 A No.
5 Q Talk to me a little bit about the dog.
6 A I roughhouse with him a lot, yes. And I have
7 disciplined him probably more than I should have. I always
8 looked at it as I would rather take actions against the dog
9 than have the dog run out and get hit by a car, run away.
10 And I have disciplined him, but neither of my dogs cower
11 down when I yell.
12 1 talk to them in a high voice cause they are
13 hunting dogs and you have to scream at them when you are in
14 the woods. And, you know, when I tell them get over here in
15 a loud voice, they don't cower, they run right up to me.
16 And I don't have any problems with them. I haven't had to
17 discipline Dixie since Melissa left. She listens. She does
18 what I ask of her. She doesn't run off. I haven't had any
19 problems with her.
20 And the pup, he's an outside dog, so we don't
21 have any problems either. He stays. He runs off once in a
22 while, but I never had to beat him or anything. I never
23 did, the pup.
24 Q In regards to the dog, where Melissa had
25 testified that she -- that she saw the dog chewing the shoe
88
• •
1 and then you lunged at the dog in front of Breanna, was that
2 an accurate depiction of what actually occurred then?
3 A I recall that incident. We were sitting at
4 the table. It was when we were just separating. And I had
5 had a bad day, and the dog was chewing, and I quickly
6 reacted. I jumped up and I cocked back, and then I grabbed
7 the dog by the collar and put his face down into the shoe
8 and I said, no. And I put him in his crate, I believe. Or
9 I tied him outside, I'm not sure.
10 Q She had testified that you punched him in the
11 face. Did you punch him in the face?
12 A No.
13 Q The issue about the motorcycle accident, can
14 you describe for Judge Hess what occurred the day of the
15 motorcycle accident?
16 A Yeah. My dad and I had been out earlier that
17 day and I had a beer or two, and then we went back and got
18 ready for this cookout. And then she showed up, which was
19 probably two or three hours later. And we were going -- and
20 probably I was going a little faster than I should have, I
21 didn't notice the sign. It was a blind corner, you couldn't
22 see around the other side.
23 And the van come and -- as she said, it
24 happened very quick -- the van come, I just seen it the last
25 second, try to laid it over to put more space, the bike
89
• •
1 bottomed out, and then we went through a wooden fence.
2 Q Now, again, police were involved in that
3 episode?
4 A Yes.
5 Q Were you cited for any kind of alcohol
6 drinking, any problems in that regard?
7 A No. They didn't even question it.
8 Q Now, there is talk about when you partied or
9 when you would party and drink and go out with all of these
10 people and carouse. Was there a time in your life when you
11 did that regularly?
12 A Yes, from the time we met up until -- I
13 slowed down a lot when Breanna was born, regardless of what
14 anybody says, cause I used -- I would just go for days and
15 not tell anybody where I was. Just go hang out with people
16 and then show up. I didn't have a daughter. I didn't, you
17 know, I just had a girlfriend, and all I would get is I wish
18 you would have called. But I have settled down considerably
19 since then. When I don't have her, I still go out. I don't
20 like sitting at home alone. I don't like being alone.
21 Q What problems or concerns do you have about
22 Melissa's parenting?
23 A She does -- she drops everything. As soon as
24 Breanna makes one peep, she drops everything and gives her
25 exactly whatever she needs, which I believe is a little
90
• •
1 overboard. I don't think it is healthy for the child. And
2 I don't think it hurts the child if she wants juice, if you
3 make her wait five minutes until you finish what you are
4 doing.
5 I don't drop everything. She lets her walk
6 all over her, scream no to her. And she did it while she
7 lived with me . And then she asked me -- I have never -- one
8 time I think she told me no since Melissa had left. And I
9 just sent her to her room and said, you don't tell daddy no,
10 and that was it. She might have been in her room five times
11 since Melissa left for trouble.
12 Q When Melissa was like in the house with the
13 child, who wa s the disciplinarian?
14 A It was always me. She just let her walk all
15 over her. I mean whatever -- it was all about her, which I
16 mean I think that is unhealthy.
17 Q Did Melissa cast you in the role of the
18 disciplinaria n in regards to the relationship with the
19 child?
20 A Yeah, if she wouldn't do what Melissa wanted,
21 she would say I am going to tell your dad, I am going to get
22 your dad, and make me out to be like the bad guy or
23 whatever.
24 Q Concerns about the child when she is in the
25 custody of Me lissa and at family functions with her parents,
91
• •
1 can you discuss some of the issues that you have with those
2 kind of events?
3 A Yeah. Her family functions, they all involve
4 alcohol. And they have -- I have been up there, and I even
5 brought up the concern to Melissa about the children there
6 ride motorcycles and don't know how to stop. They just ride
7 around this property there and don't know how to stop.
8 So if a little kid walks out not paying
9 attention, she's going to get run over by a motorcycle, I
10 mean. And they -- you know, she wants to point fingers
11 about me having her on my motorcycle without a helmet, she
12 has been on four wheelers and stuff up there.
13 I have seen children and wagons getting
14 pulled behind the same four wheeler that bounced out. But,
15 you know, these are things when you are in the mountains,
16 that is the things you do. I don't see a reason to
17 overreact real crazy about it, just take a little more
18 precaution.
19 They drink, you know, they drink at their
20 events just like my family events. If there is even alcohol
21 there, I have never seen anybody at a family event -- with
22 the exception of when my cousin graduated college, there was
23 a younger crowd there -- I have never seen anybody drink
24 more than two beverages. And I don't drink there. They get
25 crazy up there and do stuff.
92
1 They want to point fingers at me for being
2 drunk, but they are throwing chairs in the fire, and they
3 got people crapping all over the outhouse, they can't
4 control theirself. I mean they are no better.
5 Q Let's talk a little bit about the issue of
6 the diaper rash. Really just the parenting from house to
7 house, can you describe for Judge Hess what is going on with
8 the potty training?
9 A Yeah. I started trying to potty train
10 Breanna from the time of the separation cause Melissa had
11 bought her a little potty there and took it with her. So I
12 went and bought her another one. And from like her second
13 birthday, I was working with her. She was doing rather
14 well. I had to remind her a lot.
15 But Melissa up one-sided me and down the
16 other and said daycare, Linda said she wasn't ready yet, she
17 ought to know. I was too early and this and that. I wasn't
18 getting it right. And she really wasn't anymore far behind
19 then as she is now at my house with me. I still have to
20 remind her. She still has accidents once in a while. I
21 think if both of us would have worked at it, I think she
22 would be already potty-trained now.
23 With the diaper rash, I didn't inspect the
24 diapers and they did cause a rash, a little bit of a red
25 spot and I discontinued using them. But I had them still in
93
• •
1 the closet. And I did run out one night and I thought, on,
2 just putting one on isn't going to hurt. Well, I got a call
3 that she was a little red, and she made a big deal about it
4 to the baby sitter and everything. And Aunt Linda said, I
5 have observed this and it is nothing to be concerned about.
6 These things happen. She has been in daycare for twenty
7 years. Put a little cream on it and it goes away.
8 Q Do you think Melissa overreacts to these
9 circumstances related to the baby?
10 A Yes, yes. She overreacts a lot and, you
11 know, like about the rash, she calls me and cusses me out
12 over just little bit of red. I put cream on it, it'll go
13 away. That is what I do, you know.
14 And any little thing, the clothes being a
15 little small, well, if I am going to send her there in
16 clothes that I have for her, I send her in stuff I don't
17 ever want to see them again. I could care less. If I get
18 it back, fine. If not, she can keep it. it's too small
19 anyway. And it's not like I can't even barely button the
20 things or can't get them on her foot or whatever. They are
21 just a little small. Most of them have a smaller size.
22 There is a bigger size than what they say on them.
23 Q And, again, do you believe the custody
24 arrangement as it exists currently is working, or what do
25 you want the Judge to do?
94
I A I believe the time periods are fine. I just
2 disagree with that if, if I have off work I can't have her
3 while she is at work, according to the, to her -- according
4 to paperwork. Or if I have a family member visit, she has
5 got to go straight to daycare. She is very unflexible about
6 all of that.
7 Q Do you think she promotes you as the child's
8 father?
9 A No. I -- I don't understand why, but
10 sometimes I pick her up and she is all cheers, and then
11 sometimes I pick her up and she doesn't really want to go.
12 But I have also dropped her off, and she cried when I
13 dropped her off at the same token. It's, I think she
14 discourages her to be with me.
15 When she calls her on the phone, we will be
16 playing, having a good time, and then she will start crying
17 for some reason. I don't know what she says or what, but
18 she just starts crying out of the blue and says night night.
19 It's like she knows she has to go to bed soon or something.
20 MS. SUMPLE-SULLIVAN: I have nothing further.
21 CROSS-EXAMINATION.
22 BY MR. O'CONNOR:
23 Q Jason, you you were in the Marines?
24 A That is correct.
25 Q And is that when you got your DUI?
95
• •
1 A That is correct.
2 Q Did you get more than one DUI?
3 A No.
4 Q And you received swimming instructions in the
5 Marines, cer tification?
6 A That is correct.
7 Q When is the last time that you have gone
8 swimming?
9 A Last summer.
10 Q Yes, last time.
11 A I couldn't tell you the date. I took Breanna
12 swimming at my grandmother's house. And we have friends,
13 Rich and Lis a Styers, they have a swimming pool. We swim
14 there. I sw im in the creek. I couldn't put a date on it. I
15 swam so much over the summer, I couldn't really tell you.
16 Q How fast do you think you would have to swim
17 to outswim t he current on a river in its flood stage?
18 A If my daughter was to have fell in that water
19 with a life preserver on, she would have went downstream and
20 I would have been swimming downstream after her. So the
21 current woul d actually be helping me, and I would be
22 swimming, pr opelling myself, which I would catch her because
23 she wouldn't be swimming.
24 Q And you felt that was worth it, that you
25 could trust yourself enough --
96
1 A I didn't see --
2 Q -- to swim after her and save her if the
3 canoe would overturn?
4 A I didn't see any danger. The water was above
5 the level to w here the rocks would hit you and tip you over
6 to begin with.
7 Q You were in AA, right?
8 A That is correct, because I was going to lose
9 my family if I didn't go, and so I went.
10 Q And how long were you in AA?
11 A I just went for maybe a week or two.
12 Q And why did you leave AA?
13 A Because I didn't have the problems that they
14 had. They are talking about withdrawals from not drinking,
15 and getting th e shakes and relapse and all this. I just
16 said, this isn 't -- I decided not to drink, and I didn't
17 drink. And I didn't have a problem. I didn't want to
18 drink. I kept myself busy hunting and fishing and doing
19 other things. I didn't -- I didn't feel the need that I
20 needed to drin k. I was dry from August until she left.
21 Q And you were sure you didn't have a drinking
22 problem?
23 A Yes, a hundred percent sure.
24 Q But then you got an alcohol evaluation to
25 find out wheth er you did or not?
97
• •
1 A I had that done because I knew it would
2 probably be required at the end of today anyway so I figured
3 I would just bring it in in advance.
4 Q Now, when the police were recalled in regard
5 to the custody on that one occasion that you testified to --
6 A Yes.
7 Q -- who called the police?
8 A Melissa had called the police.
9 Q And you had mentioned there is times when,
10 like you have to wait in order to get Melissa -- to get
11 Breanna from Melissa?
12 A Yeah, that is correct.
13 Q Okay. Are there also times when you are
14 late?
15 A That's correct, there are times when I get
16 held up at work, but it is not by anything -- I will always
17 make sure I am there before she has to leave for work.
18 Q Now, where are the job sites located that you
19 work at?
20 A One is in Chambersburg at the Martin Famous
21 Pastry and then the Hayshire Elementary School in York.
22 Q You may be required to go anywhere in the
23 state, right?
24 A Anywhere in central America from New York to
25 -- central Pennsylvania, I'm sorry. From New York down to
98
•
11
1 Maryland.
2 Q Okay.
3 A Just the center. I don't go east or west. I
4 could go anywh ere in the country when I top out. But you
5 can deny these calls, you do not have to take them. If you
6 have a child, you don't -- if they want me to go up above
7 State College and I said, like I am a single father, I
8 cannot go up t here, I have obligations with my child, they
9 cannot hold th at against me, they put me on the list to go
10 out for anothe r job.
11 Q But you have been going all over the state,
12 right?
13 A No. I have went from -- the furthest job I
14 have worked is -- since she has left is Chambersburg. When
15 we were togeth er and I had a mother at home to take care of
16 my child, yes, I went to State College. I don't have
17 anybody there to do it so I won't -- I have to turn the jobs
18 down.
19 Q What percentage of the time are you outside
20 the Harrisburg area?
21 A Outside the Harrisburg Metropolitan --
22 Q Yes.
23 A -- working?
24 Q Yes.
25 A I work in York and I think Adams County. It
99
• •
1 is every day. It is a 30 minute drive to the one and 50 to
2 the other.
3 Q Did you testify in Domestic Relations that
4 you traveled all over the state on your job?
5 A That's correct. If I am required to, and I
6 can take care of my daughter. I am driving a hundred miles
7 round trip to Chambersburg. It takes 50 minutes to get
8 there. Yeah, I have a hundred, 150 miles a day, some jobs.
9 Q Now, when you are making supper, what do you
10 cook?
11 A We made meatloaf and homemade macaroni and
12 cheese just S aturday. And spinach for a vegetable.
13 Q You have to admit that you feed Breanna a lot
14 of junk food, right?
15 A I would say that is incorrect. She eats
16 goldfish and green beans and tomatoes out of the garden all
17 summer. I do n't give her junk food hardly at all.
18 Every time I pick her up, she gives her a --
19 I give her a lollypop at the bank. Every time I pick her
20 up, she sends candy with her. Or like an ice cream snack or
21 like a fruit snack or something. She gives her junk food
22 plenty.
23 But, me, I usually fed her out of the garden
24 most of the s ummer was her snacks. I got fruit snacks for
25 her. But as for junk food, she gets lollypops when she goes
100
•
•
1 to the banks, and that is about it. I got cheese-its,
2 goldfish, snacks like that around the house, or string
3 cheese she likes. That is the kind of snacks I feed my
4 daughter.
5 Q Wasn't there a situation where she threw up
6 and couldn't go to daycare the next day?
7 A Yeah. I don't know what was wrong with her.
8 Yes, she did have tomatoes that evening and she did throw up
9 red, but I don't believe it is like I overfed her or
10 anything.
11 When I would pick them, she liked them so
12 much, she would go, every time I see her, she would have
13 another one in her mouth eating. I finally started taking
14 them from her because I had them set up to do my canning,
15 and she kept walking over and I kept telling her no, and she
16 kept getting them. But, yeah, she got sick that night. I
17 don't know if it was the tomatoes or what it was. The kids
18 do get sick.
19 Q Now, in regard to the lice, it was Melissa
20 that discovered the head lice?
21 A Yes.
22 Q It was Melissa that discovered the lice, is
23 that correct?
24 A Yeah, she had her for a long weekend. It was
25 Labor Day weekend. She had her on the weekend. Of course,
101
• •
1 I didn't even see her from the Thursday before.
2 Q Are you aware that lice can live 50 days?
3 A Yes. I -- well, I thought it was -- once
4 treated, I t hought it was ten days after treating, but --
5 Q Okay.
6 A I have not had a stitch of lice. I was -- I
7 had a friend who had two young children who were in my
8 house, they never had it. And she checked her children.
9 And nobody i n my household had it at all. Not even after
10 Breanna had contracted it and we cleaned her up, and I
11 brought her home and I actually shampooed her again.
12 Q Well, actually Melissa had treated Breanna
13 before you g ot there, isn't that correct?
14 A Yes, that is correct.
15 Q And she called you and she said that Breanna
16 has lice?
17 A That is correct.
18 Q And she said, come on over, I will show you
19 what has to be done?
20 A Yes.
21 Q Okay.
22 A And I spent the afternoon picking through
23 both of thei r hair.
24 Q And Melissa had shown that -- shown you that
25 she had done it before, she bought the treatment, she bought
102
• •
1 the medication that she used to treat it?
2 A Well, I hoped she would. If Breanna was in
3 my custody, I don't think I would just say, here you go,
4 Melissa, your daughter has lice, go get stuff and take care
5 of her. She did the right thing. That is what I would have
6 done.
7 Q So the two of you treated her for a week?
8 A Yes.
9 Q Isn't that correct?
10 A Yes.
11 Q Okay. And neither one of you felt that any
12 medical care was needed, is that correct, because you were
13 doing the treatments?
14 A I knew she had to see a physician to be
15 accepted to go back to Aunt Linda. She wanted to try to
16 slide this note by saying that she hasn't been seen, she
17 said, don't tell her, don't tell her.
18 Well, I wasn't going to get up at five
19 o'clock in the morning, get my daughter dressed at 5:30 --
20 actually was dropping her off at six then -- wasn't going to
21 go to drop her off and have her say, oh, well, she can't
22 come here, I made plans ahead of time.
23 I knew it wasn't going to work. I called
24 her, said, this is the letter I got. This is what it says.
25 Well, she can't come. Fine. Luckily I: did make to it the
103
I doctor so she could go to daycare on time.
2 Q What happened was Linda, the baby sitter,
3 required a note from a doctor --
4 A That is correct.
5 Q -- before Breanna could go back --
6 A That is correct.
7 Q -- to daycare. And so the purpose of taking
8 her to the doctor was to get that note?
9 A That is correct.
10 Q And it was not to seek medical treatment?
11 A That is correct. It was cleared up. The
12 only reason that she had to go to the doctor was to say that
13 she was checked by a professional and she did not have head
14 lice. But, yes, I had washed her hair.
15 Q As a matter of fact --
16 A Ran a comb through it.
17 Q As a matter of fact, Breanna had contacted
18 the doctor's office to get a note before that, isn't that
19 correct?
20 A Yeah, she called, but she wouldn't take her
21 in to have her seen or anything. But why she wouldn't, 1
22 don't know why she wouldn't.
23 Q You don't know that was required to take the
24 child?
25 A I do know that she was required cause I
104
• •
1 talked to Aunt Linda, and I told her she had to be seen by a
2 doctor before she returned to daycare. I said, well, thank
3 you, I will do whatever I can to have her seen by a doctor.
4 She was like, she was apologizing. I said, you don't have
5 to apologize to me, I understand. You got other people's
6 children there, you don't want them coming and contracting
7 lice. You want a professional to look and make sure that
8 she is not going to be contaminating your daycare, and I
9 understand that.
10 Q So the purpose of the doctor's appointment
11 and the note was to verify that she was clean.
12 A Yes, that is correct.
13 Q Okay. And so that is what you were seeking,
14 and not medical care?
15 A That is correct.
16 Q Okay. And who -- when Linda was sick, who
17 stayed home, who stayed home with Breanna?
18 A When Breanna was sick or Linda?
19 Q When Linda was on vacation for two weeks,
20 okay, who took care of the child?
21 A My grandmother come down and stayed with me
22 the one time. And she stayed with -- on the days I had her,
23 she stayed with my grandmother and my little sister. And
24 she took off work another time. She has got paid vacation.
25 I don't. If I miss work, I just don't get paid.
105
• •
1 Q How many times have you taken Breanna to the
2 doctor in th e past?
3 A I think that was the only time. But I did
4 check while I was there, checked her shot records and found
5 out she was okay until she is three.
6 Q May I see the photographs?
7 A Yes.
8 Q Now, last Christmas you were ail together
9 living at your house, is that correct?
10 A Yes.
11 Q But you didn't buy any Christmas presents for
12 Breanna, is that correct?
13 A That is correct. I gave her mother money to
14 buy her presents for her because I didn't want to buy stuff
15 that she had already bought, and she like enjoys the
16 shopping thing. I gave her I believe $200.00.
17 Q How much did you give her?
18 A I believe it was $200.00.
19 Q We are looking at photographs here that are
20 designed to show how your house is furnished to take care of
21 Breanna, is that correct?
22 A Yeah, that is just my house, yes.
23 Q Now, it is true, here the bed was left by
24 Melissa so you would have -- so she would have a place to
25 sleep, righ t?
106
•
•
1 A Yes.
2 Q And the dresser was left by Breanna -- or by
3 Melissa?
4 A Yes. It is now going out for garbage because
5 it is falling apart, I got another one.
6 Q And the bathtub toys were left by Melissa, is
7 that correct?
8 A Yeah, that is correct.
9 Q And the coffee table and chair in the living
10 area also, right?
11 A Yeah, I got that stuff out of the attic, she
12 left it.
13 Q And so almost all the toys and the
14 furnishings were purchased by Melissa and left by her,
15 right?
16 A That is an incorrect statement. I have
17 bought many toys for her that are there. Most of them are
18 in her closet. I have got a Jeep there for her to drive
19 around the yard that she didn't pay for. I have got toys
20 out in the yard that little playground set that she plays
21 on. It might be in one of those pictures.
22 She left me with like three toys and a bed
23 for Breanna, and took all the clothes but one outfit I think
24 and a pair of shoes. I had to go out -- I spent a hundred
25 dollars when she left just on Breanna's clothes at Gabriel
107
1 Brothers. So you know how many clothes I got for a hundred
2 bucks at Gabriel Brothers.
3 Q The hole in the basement wall that was put in
4 the wall when you slammed Breanna against it, is that fixed
5 yet?
6 A Yes.
7 MS. SUMPLE-SULLIVAN: I am going to object to
8 the question. Can you repeat the question?
9 BY MR. O'CONNOR:
10 Q When you slammed Melissa into the basement
11 wall --
12 A Never happened.
13 Q -- and the hole in the basement wall, is that
14 fixed yet?
15 A Yes. There is a hole there. I didn't slam
16 her into it. I hit it myself. I didn't slam her into it.
17 She actually hit me in the face three times, and I hugged
18 her trying to calm her down afterwards. I hit the wall
19 first, and th en I come back, I cooled down and I hugged her
20 trying to cal m her down. And that is all that happened.
21 Q You hit it with your fist?
22 A The wall, yes, I did. I put it there cause I
23 can fix it.
24 Q It was in the process of this altercation?
25 A Yes. I was upset. I would never lay a hand
108
•
1 on her or my daughter. I never have.
2 Q Do think there should be a primary caregiver
3 for Breanna?
9 A If there is, I believe it should be me. I
5 have a stable environment. I have a stable life. I have
6 been working for the same thing since 1996. 1 have set a
7 path. I bought my own home.
8 I take really good care of my daughter. I've
9 got a stable environment. I picked a good school district
10 out when I bought there. I know I am going to be there for
11 a long time. I don't just rent to where I can pick up and
12 move the next month and have her in another home. I will be
13 there for thirty years. I've got a mortgage that is stable.
19 Everything I have ever worked for is -- any goal I have ever
15 set I have accomplished. And she can show you what she has
16 accomplished in her life, I am sure.
17 Q Now, when you -- when you were all together
18 in the house, you indicated that Breanna was talking back to
19 you?
20 A Not to me. To her mother.
21 Q And what was she saying at that point?
22 A She was saying no. She would tell her to do
23 something, and she would scream no at her, nasty too.
24 Q And she didn't say anything else?
25 A No, she was just starting to talk. She
109
• •
1 didn't talk a lot. But it wasn't like a no, no, no, no, it
2 was like no. It was sarcastic like, no, you are not telling
3 me what to do. She still does it, from what I understand.
4 Q On?
5 MR. O'CONNOR: That is all the questions I
6 have.
7 REDIRECT EXAMINATION
8 BY MS. SUMPLE-SULLIVAN:
9 Q I just want to clarify, just for the record,
10 in response to Mr. O'Connor's question, you never threw
11 Breanna into the wall, is that correct, in the basement?
12 A Breanna nor Missy, neither one.
13 MS. SUMPLE-SULLIVAN: Okay. No questions.
14 MR. O'CONNOR: No further questions.
15 THE COURT: Thank you.
16 I am unfortunately not going to be able to go
17 beyond 4:30 this evening. So I don't know what else you
18 have or what -- who you would like to call between now and
19 then, and then we could discuss if you do need some
20 additional time for this case, I will be happy to give it to
21 you. Just this evening unfortunately I am unable to.
22 MS. SUMPLE-SULLIVAN: Okay. At this point, I
23 have the baby sitter who is waiting by phone. We had an
24 agreement at that point to allow her to testify by phone.
25 THE COURT: Okay. Do you want to try to get
110
• •
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
her on the phone?
MS. SUMPLE-SULLIVAN: Can I do that?
(Phone call placed by Ms. Sumple-Sullivan.)
MS. SUMPLE-SULLIVAN: Linda, this is Barbara
Sumple-Sullivan.
MS. LEE: Hi.
MS. SUMPLE-SULLIVAN: How are you?
MS. LEE: Good. How are you?
MS. SUMPLE-SULLIVAN: Good. You are actually
on a speaker phone in the courtroom of Judge Hess, and we
are here in the court proceedings. And in accordance with
what we discussed, we are going to take your testimony and
it is going to be transcribed.
MS. LEE: Okay.
MS. SUMPLE-SULLIVAN: So the first thing that
will happen is that the bailiff is going to give -- swear
you in. Okay?
MS. LEE: Right.
MS. SUMPLE-SULLIVAN: So raise your right
hand while he swears you.
Whereupon,
LINDA L. LEE
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MS. SUMPLE-SULLIVAN:
ill
• •
1 Q Could you state your full name?
2 A Linda L. Lee.
3 Q And what is your address, Ms. Lee?
4 A 128 North 32nd Street, Camp Hill,
5 Pennsylvania, 17011.
6 Q Now, Ms. Lee, what is your employment?
7 A I am licensed daycare.
8 Q And how long have you functioned as a daycare
9 provider?
10 A 29 years.
11 Q So you have seen a lot of children in those
12 29 years, is that correct?
13 A Yes, I have.
14 Q How long have you functioned as a daycare
15 provider for Breanna?
16 A About two years probably.
17 Q Okay. And did you know either Melissa or
18 Jason prior t o the time period that you started to take care
19 of Breanna?
20 A No, I did not.
21 Q Okay. Now, do you see both Jason and Melissa
22 at your daycare?
23 A Yes, I do.
24 Q So they both come and either pick up or drop
25 off, is that correct?
112
• •
1 A Yes, yes.
2 Q Just briefly can you describe for Judge Hess
3 what kind of c hild Breanna is?
4 A I think she is a very happy, friendly child.
5 She gets along very well with the other children. Her motor
6 skills are up to what they should be. She enjoys her
7 activities. S he is just like a normal child.
8 Q Okay.
9 A She enjoys playing with the others, and she
10 is a good kid.
11 Q All right. Now, she has been brought to your
12 daycare by bot h mom and dad, is that correct?
13 A Yes.
14 Q What time approximately in the morning does
15 mom bring her to the daycare?
16 A About 5:15.
17 Q And what time does the father bring her to
18 the daycare?
19 A Between 6:00 and 6:30.
20 Q Okay. Now, when she arrives from either of
21 the parents home, is there anything noticeable or out of
22 whack or anyth ing that you as a daycare provider worries
23 about as far a s the child? I mean is there any, any
24 problems that you know?
25 A Not that I have ever foreseen. I mean she
113
• •
1 has always come in very clean.
2 As far as the dad, I mean Jason doesn't
3 always bring her in with ponytails and little bows in her
4 hair, which I don't expect. I think that is a mom thing.
5 But he brings in her in very clean.
6 And Melissa brings her very clean. I have
7 never seen her dirty. She always comes in bathed and
8 healthy and ready to play.
9 Q Now, have you ever, either on his pick up or
10 delivery of Breanna, have you ever had any problems with
11 Jason, whether it be his attitude, his -- whether he was
12 angry, any kind of problems whatsoever?
13 A No. No. I have not seen any of that in
14 Jason.
15 Q Have you ever seen or smelled or had any kind
16 of inkling that Jason was under the influence of alcohol at
17 any time that he was dealing with Breanna?
18 A No, I have not. I have never seen that as I
19 would not release Breanna from daycare if I would have ever
20 seen that or have ever seen that. And I have said to other
21 parents, you will not be taking your child home tonight.
22 But Jason, I have never, ever seen that.
23 Q How about Melissa?
24 A Never, no.
25 Q What, what do you -- what kind of father do
114
• •
1 you see Jason being? I mean what is his interaction with
2 his daughter like?
3 A Breanna runs with joy when her daddy comes to
4 the door. And if there would be a problem, dealing with
5 children for 29 years, I mean I have done youth group at our
6 church, I was childrens director, so I dealt with a lot of
7 different children. A child that has, is afraid or fearful
8 of the father would not run with joy to her daddy's arms.
9 That is my seeing in all the years that I have worked with
10 children.
11 Q Do you ever hear Jason say anything bad about
12 Melissa?
13 A No, I have not.
14 Q Let's talk a little bit about Melissa at this
15 point. Have you ever seen her say things bad about Jason?
16 A At times.
17 Q Okay. Does she say those things in the
18 presence of the child?
19 A Yes. I have seen some things.
20 Q Can you give us some examples of the kind of
21 things that she will say?
22 A Just kind of like, I mean it wasn't -- I
23 wouldn't say they were bad things. Oh, you can tell daddy,
24 he had you this weekend, he didn't do your hair. I hope he
25 gave you a bath. Simple things like that.
115
• •
1 Q Okay. Do you believe, as far as encouraging
2 the relationship between Jason and Breanna, do you see
3 Melissa doing things to encourage that relationship?
4 A Not, no, not really. I mean she will say to
5 her, your dad will be picking you up. But not -- Breanna
6 loves her daddy. I mean she loves that her daddy picks her
7 up.
8 Q Okay.
9 A But I don't see any encouragement.
10 Q Do you ever see a situation where -- I mean
11 there was testimony in the courthouse that the child will
12 always say, no go to daddy's. Does that happen at your
13 daycare?
14 A That Breanna has asked me -- that she wants
15 daddy to pick her up?
16 Q No, that she says no go to daddy's.
17 A No, she has never -- well, maybe when they
18 were still together, when they first separated she might
19 have said that, when they first just separated. And I think
20 that might have been because she was confused of moving, you
21 know, moving to a different place. But now she never says
22 that. In the beginning, she may have said that a few times,
23 yes.
24 Q In regards to going with mommy, does she ever
25 decline to go with Melissa?
116
• •
1 A No, no.
2 Q Can you describe, there has been testimony
3 about diaper rash and issues which has raised concern for
4 Melissa that Jason doesn't properly care for the child.
5 A Maybe once or twice she has come in red.
6 Now, I would not -- and that, again, I am not bragging, but
7 working with children as many as years as I have, I have
8 seen severe diaper rash where the child is actually
9 bleeding. That is severe diaper rash. That is when I think
10 a pediatrician should be called immediately.
11 But I have not seen that with Breanna. She
12 might have been a little red down there. And I know -- I am
13 not sticking up for Jason, but he was wearing pull ups on
14 her. And I know at times just dealing with little girls,
15 when they wear pull ups, sometimes they do get irritated
16 from those. So I don't know why, if there is like a perfume
17 in them or whatever. But I have seen some of them do get
18 red from those. But I would not see -- no, there was never
19 severe diaper rash.
20 Q Do you believe that Melissa reacts reasonably
21 to things concerning the child, or do you believe that she
22 overreacts to things that occur regarding Breanna?
23 A I think she over -- I mean I think she is
24 very overprotective of her at times, but it is her first
25 little girl so --
117
• •
1 Q Okay. We have had some testimony about the
2 lice issue. Just to clarify, did Melissa tell you where the
3 lice had originated?
4 A To be honest with you, I heard so many
5 different stories about the head lice. First she told me
6 the child, she thought, had got them from camping that
7 weekend. Then she told, she told me that the child maybe
8 got them from her brother's children, whom they were around.
9 Then a friend, maybe -- I'm sorry, the third
10 time I heard it was Jason had said to me a friend, a little
11 girl -- I am not sure what the little girl's name was, maybe
12 Jessica, or I don't know -- but she was around another
13 little girl that, one of Melissa's friend's little girls.
14 And he had said that little girl had had them.
15 Q Okay.
16 A So I mean I heard a lot of stories about the
17 head lice.
18 Q Did you --
19 A So honestly I can't say where they came from.
20 But I know they didn't come from my daycare.
21 Q Did you believe that Jason acted responsibly
22 in dealing with the issue with the head lice?
23 A Jason did a hundred percent. He is the one,
24 and I am giving him credit, he is one that brought me the
25 doctor's paper, and he actually took Breanna in to the
118
I doctor's. Because I told him she could not be back in my
2 daycare until I had a doctor's paper that she was totally
3 free, nit free of h ead lice. He is the one that took her to
4 the doctor's.
5 MS. SUMPLE-SULLIVAN: I have nothing further.
6 THE COURT: Mr. O'Connor, we will close with
7 your questioni ng of her, and then we will conclude today's
8 proceeding.
9 CROSS-EXAMINATION
10 BY MR. O'CONNO R:
11 Q Yes, Ms. Lee, I am Attorney Pat O'Connor.
12 A Hi.
13 Q Hi. You are trying to be fair to both
14 parents here?
15 A Yes, correct.
16 Q And your impressions of the parents are based
17 solely on the time that they are at your place, either
18 picking up or dropping off the child, is that right?
19 A Yes.
20 Q And they are really only there for that
21 purpose, right ?
22 A Yes.
23 Q And so your contact is very limited?
24 A Exactly.
25 Q And you don't really get to see them in their
119
• •
1 living environment or meet with them socially?
2 A No, I do not.
3 Q And you don't see how they interact with the
4 child outside?
5 A No, but just by what Breanna says, I mean we
6 will be doing a certain thing. Like I don't know exactly
7 what story we were reading one day last week and she said
8 that daddy reads her stories. And then another time --
9 Q Okay, all right.
10 A I mean, you know, I think they both really
11 interact with their child.
12 Q Okay. Now, in your experience, the father
13 dropping off the child and picking her up, how many times a
14 week would he do that normally?
15 A If I have her two days a week, either her
16 daddy brings h er and then mommy picks up, or vice versa,
17 like if -- then if I have her three days a week, daddy would
18 bring and momm y would pick up, or mommy would bring, daddy
19 would pick up.
20 Q So you see each of them once or twice a week?
21 A Exactly. Probably two to three times a week.
22 Q Okay. And that is for a few minutes?
23 A Yes.
24 Q Okay. And have you noticed any substantial
25 change in how the father has interacted with the child over
120
• •
1 the time that the child has been with you?
2 A I think Breanna is a lot happier. She seems
3 happy. I mean she seems happy to be with either parent.
4 She seems very happy when her daddy comes to pick her up,
5 and she is happy when her mommy comes to pick her up.
6 Q But what about the father's relationship to
7 the child, has that changed?
8 A Yes, I think it is very good.
9 Q Has it changed though since the father --
10 A Well, when they first split up, she did say
11 no daddy, no daddy, she didn't want daddy to pick her up and
12 she did cry. And now in the past few months, she, like I
13 said, she runs for her daddy's arms, to jump into her
14 daddy's arms. So I feel as a parent he is really trying.
15 And Breanna really does love her daddy.
16 Q And that has changed since they split up, is
17 that correct?
18 A Yes.
19 Q Okay. And he was more aloof prior to the
20 time that they broke up?
21 A More what?
22 Q He was more aloof and was less concerned,
23 seemed less concerned about the child before they split up?
24 A He has more interaction now I would say with
25 the child, yes.
121
I Q And that started about the time they broke
2 up?
3 A Yes.
4 Q And you are aware that they split up in
5 March, right?
6 A Yes.
7 Q And prior to that time, father seemed to want
8 little or nothing to do with Breanna, right?
9 A I wouldn't say that. He never -- he never
10 told me that he didn't want anything do with Breanna. I
11 think Jason has always loved his daughter.
12 Q And have you noticed Breanna has a strong
13 attraction to junk food, doesn't she?
14 A Yeah, she likes sweet things.
15 Q And has she indicated where she gets that
16 preference?
17 A She has told me before that daddy gets her
18 soda. And my comment is well, at Aunt Linda's we drink milk
19 or water. And she kind of looks at me and drinks whatever
20 the children a re having, but, yes, she has made comments
21 that she likes soda.
22 Q And would you -- would you agree that the
23 mother is a ve ry concerned mother?
24 A Yes.
25 Q Okay. And does Breanna sometimes cry when
122
• •
1 Melissa drops her off?
2 A Yeah, but I think it is because she is too
3 tired in the morning too. I mean a child that is woken up
4 at 5:15 in the morning, I think I would cry too if I had to
5 wake up at 5:15 in the morning. She is very tired. She
6 comes in and she lays right on my little love seat in the
7 living room and goes right back to sleep until the other
8 children come. And then she is up and she is happy and she
9 is ready for breakfast.
10 Q Do you think it's hard on the child being
11 moved back and forth between the homes so often?
12 A I can't really answer that. I mean I think
13 that -- I dealt with Doctor Shienvold before, and he is an
14 excellent psychologist. I am not -- I mean I am not trying
15 to be rude, but I think that would be something for someone
16 who is a doctor to say.
17 Q Now, when I talked to you yesterday, you said
18 that you thought it was hard on the child.
19 A Pardon me?
20 Q When I talked to you yesterday --
21 A Well, I think it's a little hard on the
22 child, I think, to be thrown back and forth.
23 Q Now, during the day, does Melissa call from
24 time to time to see how Breanna is doing?
25 A If Jason has had her for a whole weekend,
123
•
1 from time to time she will call, yes. And if I am busy with
2 the children I will always get back to her or whatever.
3 From time to time, yes, she does call to check on Breanna,
4 just to see how she was or how she seemed.
5 Q Okay. And you told me that the father does
6 not call, is that correct?
7 A No, he usually doesn't. But he's outside
8 working. That is his job. So it is kind of hard. He does
9 call, if he is working -- I know one time he was working
10 outside and he said, Linda, I am like grease from head to
11 toe, he left a message.
12 I was out in the yard playing with the
13 children, watching the children play. He said, I am going
14 to be about ten minutes late, I just want to run and jump in
15 the shower because I don't want Breanna full of grease. And
16 he did. He was here within twenty minutes at the maximum.
17 Q Last summer there was an occasion -- this is
18 the last question.
19 THE COURT: Very good.
20 BY MR. O'CONNOR:
21 Q When the father brought Breanna to daycare
22 and she was noticeably dehydrated, you were concerned enough
23 to call the mother, is that correct?
24 A Yes. Yeah, there was one -- and I think it
25 was a Monday morning I think when her daddy had her all
124
• •
1 weekend, maybe Breanna didn't drink that much that weekend.
2 I have a water cooler that I fill their sippy
3 cups up with. Whenever they want them, they just run on the
4 little table and get them. She just kept going back to the
5 water cooler, and she did not urinate until at least 10:30
6 that morning. And I talked to Melissa, I was starting to
7 get worried because I thought the child was dehydrated cause
8 she kept drinking. But that was only one time I was really
9 concerned about her.
10 Q Just one more request, if there were a
11 medical emergency, who would you feel more comfortable in
12 calling? Who do you feel would be the best parent to call.
13 A I would probably call Melissa.
14 Q Okay.
15 A Only because Jason is out on the jobs.
16 Q All right. Thank you. So --
17 A Sure.
18 THE COURT: Okay. Anything else? We need to
19 conclude.
20 MR. O'CONNOR: Thank you, Linda. That will
21 be it.
22 THE WITNESS: Sure. Thank you. Bye now.
23 (End of speakerphone call at 4:40 p.m.)
24 THE COURT: Okay. Frankly, I think I have a
25 surprisingly good feel for this case even though we have
125
• •
1 only been at it for three hours, but I don't want to give
2 either side short shrift.
3 What I would be interested in doing is seeing
4 proposed orders from both of you. And if you could give me
5 an idea, perhaps in a letter or something, what other
6 witnesses you plan to call and if you plan to call any
7 rebuttal, then I will get my secretary on the phone and we
8 will try to get a time in the not too distant future.
9 In the meantime, the current order is -- it
10 is certainly not particularly satisfactory to the mother, it
11 seems to be working so that we can keep it in place pending
12 further proceeding.
13 Do you want to proceed that way?
14 MS. SUMPLE-SULLIVAN: That would be fine.
15 THE COURT: Each of you get me a copy of the
16 Order you would like to see entered in the case together
17 with any, any, the summary of any additional testimony you
18 propose, okay, and then I will be able to schedule
19 something.
20 MS. SUMPLE-SULLIVAN: Great.
21 MR. O'CONNOR: Thank you. Your Honor, will
22 we be coming back here one way or the other? I was
23 wondering if I could move my exhibits.
24 THE COURT: Oh, let's take care of that now.
25 I am assuming the exhibits are going to come in basically
126
•
1 without objection.
2 MS. SUMPLE- SULLIVAN: We have no objection.
3 THE COURT: I would like to see the
4 photographs. Okay. It wi ll be understood then, and you
5 needn't renew that motion, it will be understood that the
6 exhibits are admitted. Th ank you.
7 MS. SUMPLE- SULLIVAN: Thank you.
8 THE COURT: All right, thank you.
9 (Whereupon, the proceeding was
10 concluded at 4:40 p.m.)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
127
• •
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
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause, and that this is a correct transcript of
same.
I
Mari= T. Farley,
Official Court Report
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
t4z
Kev' i A. Hess, J.
Ni th Judicial District
128
,?
_1
Barbara Sumple-Sullivan, Esquire
Supreme Court #32317
549 Bridge Street
New Cumberland, PA 17070
(717) 774-1445
MELISSA A. LINDQUIST, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION LAW
JASON E. KESSLER, NO. 05 - 1105
Defendant IN CUSTODY
PETITION FOR EMERGENCY RELIEF
1. Petitioner is Jason E. Kessler, an individual residing at 4 Birch Street, Enola, Cumberland
County, Pennsylvania 17025.
2. Respondent is Melissa A. Lindquist, an individual residing at 5105 N. Front Street,
Harrisburg, Dauphin County, Pennsylvania 17110.
3. The parties are the natural parents of Breanna J. Kessler, born March 21, 2003.
4. Pursuant to Order of Court dated December 8, 2005, a Custody Order was entered
granting the parties shared legal and shared, equal physical custody of their daughter. A
copy of the Order is attached hereto as Exhibit "A" and incorporated herein by reference.
1
5. The child had been enrolled in the East Pennsboro School District at the mutual
agreement of the parties for commencement of the 2008-2009 School year.
6. The child's primary address for the school use was that of the Petitioner. Petitioner,
Respondent and Breanna all resided in this house prior to the parties' separation in
February, 2005.
7. During the Summer, 2009, Respondent relocated to Harrisburg, Dauphin County to live
with her boyfriend in a property owned or rented by him.
8. Within the last few weeks, Respondent notified Petitioner that she desires the child to be
enrolled in the Susquehanna Township School District which is the school district where
her boyfriend's residence is located.
9. Petitioner indicated to Respondent that he desired the child to remain in East Pennsboro
and refused to authorize any change in school districts.
10. Respondent took no action to seek court intervention to make the change.
11. Respondent then attempted to remove the children from the East Pennsboro School
District and unilaterally enrolled her in the Susquehanna Township School District.
2
12. Petitioner did not and does not concur with Respondent's removal of the child from her
existing District.
13. Petitioner then re-enrolled the child in East Pennsboro School District and notified the
Susquehanna Township School District that, as a parent with shared custody, he does not
authorize the child's enrollment in that school district.
14. Petitioner has not been able to verify the child's enrollment status with the Susquehanna
Township School District.
15. On August 26, 2009, Petitioner received a call from East Pennsboro through voice mail,
indicating that Respondent had again requested transfer of the child's records and the
records were being sent to Susquehanna Township School District.
16. Petitioner requests an order be entered preserving the status quo and requiring the child to
continue in the East Pennsboro School District for school year 2009 - 2010.
17. Efforts to deal with this issue through Respondent or her counsel, G. Patrick O'Connor,
Esquire, has proven fruitless.
18. Earlier this week, Respondent committed to leaving the child in the East Pennsboro
School District but only in the event Petitioner drove the child to school every day and
increased the child support. This deal was rejected.
3
19. Notice of this Petition has been given to Respondent's counsel of record. Respondent's
counsel indicates he is not retained for this matter.
WHEREFORE, Petitioner requests an order preserving the status quo and allowing for
the continued enrollment of the child in the East Pennsboro School District.
submitted,
DATE: Augus?, 2009
Barbara Sumple-Sullivan, Esquire
549 Bridge Street
New Cumberland, PA 17070-1931
(717) 774-1445
Supreme Court I.D. 32317
Attorney for Petitioner
4
EXHIBIT "A"
MELISSA A. LINDQUIST,
Plaintiff
vs.
JASON E. KESSLER,
Defendant
4,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 05-1105 CIVIL
IN RE: CUSTODY
ORDER
AND NOW, this day of December, 2005, after hearing, it is ordered as
follows:
1. Legal Custody: The parties shall have shared legal custody of their minor child,
Breanna J. Kessler, born March 21, 2003.
2. Physical Custody: The parties shall equally share physical custody of Breanna on the
following schedule:
a. Weekends: Each party shall have physical custody on alternating weekends
from Friday at 5:00 p.m. to Monday at approximately 7:00 a.m.
b. Weekdays - Week 1: Following Father's weekend, Mother to have custody
starting no later than 7:00 a.m. on Monday until Wednesday at 5:00 p.m. Mother shall
have the option of having father drop off the child at either daycare or her residence
on Monday morning prior to 7:00 a.m. Father shall pick up the child at daycare or
residence of Mother after work on Wednesday. If Father is off of work on Monday,
he may retain custody during the period of time that the child would normally be in
daycare.
Father to have custody from Wednesday at 5:00 p.m. until Friday at 5:00 p.m.,
NO. 05-1105 CIVIL `
at which time Mother shall pick up the child for the start of her weekend.
c. Weekdays - Week 2: Following Mother's weekend, Father to have custody
starting no later than 7:00 a.m. on Monday until Wednesday at 5:00 p.m. Father shall
have the option of having Mother drop off the child at either daycare or his residence
on Monday morning prior to 7:00 a.m. Mother shall pick up the child at daycare or
residence of Father after work on Wednesday. If Mother is off of work on Monday,
she may retain custody during the period of time that the child would normally be in
daycare.
Mother to have custody from Wednesday at 5:00 p.m. until Friday at 5:00 p.m.,
at which time Father shall pick up the child for the start of his weekend.
d. In the event that either parent is off of work on the other parent's designated
custodial day and the child would normally be in daycare, that parent shall have the
right of first refusal for the child during his or her time off.
3. Holidays: The parties shall celebrate holidays as follows:
a. Easter: Easter shall be defined as 9:00 a.m. to 7:00 p.m. Mother shall have
odd-numbered years and Father shall have Easter in even-numbered years.
b. Thanksgiving Day and New Year's Day: In odd-numbered years, Father
A. ' shall have Thanksgiving Day and New Year's Day. These holidays shall be defined as
6:00 p.m. on the evening before the holiday until 7:00 p.m. the day of the holiday.
Mother shall have these times in even-numbered years.
- c. Christmas Day: Christmas Day shall be divided into two segments which shall
alternate from year to year. In even-numbered years, Father shall have segment 1 from
2
NO. 05-1105 CIVIL `
a
2:00 p.m. on December 24th until 2:00 p.m. on December 25th and Mother shall
have segment 2 from 2:00 p.m. on December 251h until 2:00 p.m, on December 26t".
In odd-numbered years, Mother shall have segment 1 and Father shall have
segment 2.
d. Memorial Day, July 4th, Labor Day: These holidays shall alternate with
Father having Memorial Day and Labor Day in even years and Mother having
July 4"' in even years. In odd years, Mother shall have Memorial and Labor Day
and Father shall have July 4"'. These holidays shall be defined as 6:00 p.m. on the
evening before the holiday until 7:00 p.m. the day of the holiday.
e. Mother's Day: Mother shall always have Mother's Day, which shall be
defined from 9:00 a.m. until 7:00 p.m. and shall supersede the normal custodial
schedule.
f. Father's Day: Father shall always have Father's Day, which shall be
defined from 9:00 a.m. until 7:00 p.m. and shall supersede the normal custodial
schedule.
g. Child's Birthday (March 20): The child's birthday shall be divided into
two segments which shall alternate from year to year. In even-numbered years, Father
shall have segment 1 from 2:00 p.m. or pick-up from daycare on March 20th until
2:00 p.m. on March 21 51 and Mother shall have segment 2 from 2:00 p.m. on
March 21 St until 2:00 p.m. on March 22°d. In odd-numbered years, Mother shall
have segment 1 and Father shall have segment 2.
The periods of partial custody for holidays or other special days set forth in this
3
NO. 05-1105 CIVIL `
o
Order shall be in addition to, and shall take precedence over, but shall not alter the
schedule or sequence of regular periods of partial custody for the parent as set forth
previously in this Order.
In the event that a parent who would otherwise have custody of the child during
a weekend which immediately precedes or follows one of the alternating holidays
on which that same parent would also have custody, the parent need not relinquish
custody until the conclusion of the entire three (3)-day period.
4. Summer Vacation: Each parent shall have two (2) nonconsecutive weeks of
uninterrupted custody with the child each summer for the purpose of vacation. This period shall
be seven (7) days and include that party's weekend.
5. Transportation: Unless otherwise indicated in this order, the parent who will be
commencing his or her period of custody shall pick up the child for his or her custodial period.
6. Positive Relationships: Each of the parties and any third party in the presence of the
child and the party shall take all measures deemed advisable to foster a feeling of affection
between the child and the other party and neither will do anything which may estrange the child
from the other party or impair the child's high regard for the other party. Neither party shall do
anything which may estrange the child from the other party or injure the child's opinion of the
parent or which may hamper the free and natural development of the child's love and respect for
the other parent.
The parties shall not use the child to convey verbal messages to the other parent about the
custody situation or changes in the custody schedule.
4
NO. 05-1105 CIVIL
i
7. Mutual Consultation: Each party shall confer with the other party on all matters of
importance relating to the child's health, maintenance, and education and social adjustments.
Each party agrees to keep the other informed of his or her residence and telephone numbers to
facilitate commw-iication concerning the welfare of the child and visitation. Each party agrees to
supply the name, address and phone numbers of any persons whose care the child will be in for a
period in excess of twenty-four (24) hours, and for each person or entity which may provide
daycare for the child.
BY THE COURT,
nevi A. Hess, J.
G. Patrick O'Connor, Esquire
For the Plaintiff Mother
Barbara Sumple-Sullivan, Esquire
For the Defendant Father
Am
COPY FROM REC,0t9tj
tfs3WTactfmny w?#ledd l t 6 u t? s8t OW tend
Safi st Cw", P sJ
T Y
5 `
7-7
Prot?ono?ry
MELISSA A. LINDQUIST,
Plaintiff,
V.
JASON E. KESSLER,
Defendant (Petitioner)
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
NO. 05 - 1105
IN CUSTODY
VERIFICATION
I, Jason E. Kessler, hereby certify that the facts set forth in the foregoing Petition for
Emergency Relief are true and correct to the best of my knowledge, information and belief. I
understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. §4904
relating to unsworn falsification to authorities.
Date: August _g&, 2009
E. KESSLER
MELISSA A. LINDQUIST,
Plaintiff,
V.
JASON E. KESSLER,
Defendant (Petitioner)
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
NO. 05 - 1105
IN CUSTODY
CERTIFICATE OF SERVICE
I, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on this date, I
served a true and correct copy of the Petition for Emergency Relief, in the above-captioned
matter upon the following individual(s), addressed as follows:
Via fax and regular mail:
G. Patrick O'Connor, Esquire
3105 Old Gettysburg Road
Camp Hill, PA 17011
DATE: Augusto, 2009
Via email and regular mail:
Ms. Melissa A. Lindquist
5105 N. Front Street
Harrisburg Pyv 110
Email: bw zer .hotmaiL m
Barbara Sumple-Sullivan, Esquire
549 Bridge Street
New Cumberland, PA 17070-1931
(717) 774-1445
Supreme Court I.D. 32317
Attorney for Petitioner
F'? ?
?,?y?.' i 7 ?, t
±^ti? '??'?C ' ? ? ? ? ?
Y ?'.1 : .
Yt
?q,, `ar" ,??'r''
????• ??
G? (? 3 y ? ?
? ????.3?
r?'
AUU z 1 L000 6
MELISSA A. LINDQUIST,
Plaintiff,
v.
JASON E. KESSLER,
Defendant (Petitioner)
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
NO. 05 - 1105
IN CUSTODY
ORDER
,Z:L day of ? , 2009, upon consideration of
AND NOW, this -_
Petitioner's Petition for Emergency Relief, the child, Breanna J. Kessler, it is ORDERED that the
status quo shall be maintained and the child shall be enrolled in the East Pennsboro School
District for School Year 2009-2010 -,a w BY THE COURT:
,,, ? 1/ 4 d
J. K i A. Hess
Distribution:
G. Patrick O'Connor, Esquire, 3105 Old Gettysburg Road, Camp Hill, PA 17011
Ms. Melissa A. Lindquist, 5105 N. Front Street, Harrisburg, PA 17110
Barbara Sumple-Sullivan, Esquire, 549 Bridge Street, New Cumberland, PA 17070-1931
707
FILE '`Cli-I ICE
OF THEE I';';n7-I..{'AC) ARY
2009 AUG 27 Ali I! : i l
CUMf ^
f Ehdf SYLVAV1
R.
MELISSA A. LINDQUIST IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
JASON E. KESSLER
DEFENDANT
2005-1105 CIVIL ACTION LAW
IN CUSTODY
ORDER OF COURT
AND NOW, Monday, August 31, 2009 , upon consideration of the attached Complaint,
it is hereby directed that parties and their respective counsel appear before Dawn S. Sunday, Esq. the conciliator,
at 39 West Main Street, Mechanicsburg, PA 17055 on _ Monday, October 05, 2009 at 11:30 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/ Dawn S. Sunday 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 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
OF THE "NOTARY
2009 AUG 31 PM 3: 1 j
OCT 0 9 2009 ?
MELISSA A. LINDQUIST
Plaintiff
vs.
JASON E. KESSLER
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
2005-1105
CIVIL ACTION LAW
IN CUSTODY
ORDER OF COURT
AND NOW, this / 3 ` day of do b b- , 2009, upon
consideration of the attached Custody Conciliation Report, it is ordered and directed as follows:
1. The prior Order of this Court dated December 8, 2005 shall continue in effect as modified
by this Order.
2. The parties shall have shared physical custody of the Child in accordance with the following
schedule:
During every week, the Mother shall have custody of the Child overnight on Mondays
and Tuesdays and the Father shall have custody of the Child overnight on Wednesdays and Thursdays.
The parties shall alternate having custody of the Child on weekends from Friday after school through
Monday before school beginning with the Mother having custody of the Child for the weekend of
October 9, 2009. All exchanges of custody shall take place after school or at 4:00 p.m., if there is no
school. The parent who has custody of the Child for the overnight shall have custody through the end
of the next school day or 4:00, if there is no school.
3. The Child shall attend school in the East Pennsboro School District for the 2009-2010
school year and continuing thereafter unless otherwise agreed between the parties in writing or as
ordered by the Court.
4. In the event either party is unavailable to provide care for the Child during his or her periods
of custody, that parent shall first contact the other parent to offer the opportunity to provide care for the
Child during the custodial parent's unavailability before contacting third party caregivers.
5. This Order is 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.
cc
ara Sumple-Sullivan, Esquire - Counsel for Father
elissa A. Lindquist - Mother
BY THE COURT,
MELISSA A. LINDQUIST
Plaintiff
vs.
JASON E. KESSLER
Defendant
Prior Judge: Kevin A. Hess
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
2005-1105 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
Breanna J. Kessler March 21, 2003 Mother/Father
2. A custody conciliation conference was held on October 5, 2009, with the following
individuals in attendance: the Mother, Melissa A. Lindquist, who is not represented by counsel in this
matter, and Jason E. Kessler, with his counsel, Barbara Sumple-Sullivan, Esquire.
3. The parties agreed to entry of an Order in the form as attached.
LA Le4 -7 u Of
Date Dawn S. Sunday, Esquire
Custody Conciliator
OF THE FR"~ F-?r" NOTARY
2009 OCT 13 AM f l * 06
CUM