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HomeMy WebLinkAbout06-0668RAYMOND HOLLOWAY, : IN THE COURT OF COMMON PLEA5 OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. v F - G L 1' L e~~..C T~~-- CHERYL KLEEMAN, :CIVIL ACTION-LAW Defendant : IN CUSTODY COMPLAINT FOR CUSTODY AND NOW, Plaintiff, by and through his attorneys, The Law Offices of Patrick F. Lauer Jr., LLC, files a Complaint for Custody against Defendant, and in support thereto, avers the following: 1. Plaintiff is Raymond Holloway, Father, who currently resides at 4005 Rider Lane, Mechanicsburg, Cumberland County Pennsylvania, 17055. 2. Defendant is Cheryl Kleeman, Mother, who currently resides at 319 Turnpike Road, Newburg, Cumberland County Pennsylvania, 17240. 3. Plaintiff seeks custody of the following child: Name(s) Present Address Age(s) Hannah Rose Kleeman 319 Turnpike Road Newburg, PA 17240 The child was not born out of wedlock. 4 (d.o.b. 03/25/02) The child is presently in the custody of Cheryl Kleeman, who currently resides at 319 Turnpike Road, Newburg, Cumberland County Pennsylvania 17240. During the past five years, the child has resided with the following persons and at the following addresses: Persons Addresses Dates Cheryl Holloway, 319 Turnpike Rd Nov. 2005- Bonnie Deimler, Newburg, PA present Brian Deimler, Charles Deimler, Holly Deimler Roy Holloway Wertz Avenue Dec. 2004- Cheryl Holloway Mechanicsburg, PA Nov . 2005 Cheryl Holloway Fourth Street Feb. 2004- Brian Kleeman New Cumberland, PA Dec. 2004 Ron Holloway 6 Mill Road March 2002- Cheryl Holloway Mechanicsburg, PA Feb. 2004 The mother of the child is Cheryl Kleeman, who resides at 319 Turnpike Road, Newburg, Cumberland County Pennsylvania 17240. She is married. The father of the child is Raymond Holloway, who resides at 4005 Rider Lane, Mechanicsburg, Cumberland County, Pennsylvania 17055. He is married. 4. The relationship of Plaintiff to the children is that of presumptive father. Plaintiff currently resides with the following person(s): Name Relationship No one 5. The relationship of Defendant to the children is that of natural mother, Defendant currently resides with the following person(s): Name Bonnie Deimler Brian Deimler Charles Deimler Relationship Sister Brother-in-]aw Nephew Holly Deimler Niece 6. Plaintiff has not participated as a party or witness, or in another capacity in other litigation concerning the custody of the children in this or another court. 7. Plaintiff has no information of a custody proceeding concerning the children pending in a court of this Commonwealth. 8. Plaintiff does not know of a person not a party to the proceedings who has physical custody of the children or claims to have custody or visitation rights with respect to the children. 9. The best interests and permanent welfare of the children will be served by granting the relief requested because: (a) The father is able to provide a stable home f"or the child. (b) The father is economically able to care for the child. (c) The father has been a caretaker of the child since her birth. 10. Each parent whose parental rights to the children has not been terminated and the person who has physical custody of the children have been names as parties to this action. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order granting custody of the children. '~ ~ r Shana M. Pugh, sq. The Law Offices of Patrick F. Lauer 2108 Market Street Camp Hill, PA 17011 ID# 200952 Tel. (717)763-1800 Date' {jl-~j,~ RAYMOND HOLLOWAY, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. CHERY KLEEMAN, :CIVIL ACTION-LAW Defendant : IN CUSTODY VERIFICATION I, Raymond Holloway, state that I am the Plaintiff in the above-captioned case and that the facts set forth in the above Complaint for Custody are true and correct to the best of my lrnowledge, information, and belief. I realize that false statements herein are subject to the penalties for unswom falsification to authorities under 18 Pa. C.S. § 4940. Date: / 3/ Ray Hol way ~~~ fil ~.. ~S 0 C7 "`~ ~_~, ~' ;; <_: ~r .~ a .,~,, ~~~~ ._ ,,,., - } __ . ~, ?-' ~'! ,. RAYMOND HOLLOWAY IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. 06-668 CIVIL ACTION LAW CHERY KLEEMAN 1T5 CUSTODY DEFENDANT ORDER OF COURT AND NOW, Tuesday, February 07, 2006 _ _, upon consideration of the artached Complaint, it is hereby directed that parties and their respective counsel appear before Melissa P. Greevy, Esq. ,the conciliator, at MDJ _Manlove's,1901 State St., Camp Hill, PA 17011 on Friday, March ]7, 2006 at 1:30 PM for aPre-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 he 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 fox 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 bearing. FOR THE COURT. I3y: _ /s/ Melissa P. Greevy Esq. ` Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD "TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 'telephone (717) 2A9-3166 .: ~~~ r -,. :. A~ r. ~_~:~~~ 'i : ~ li ~4} APR D 7 2p06 RAYMOND HOLLOWAY, IN THE COURT OF COMM CUMBERLAND COUNTY, P Plaintiff NO. 06-668 CIVIL TERM CHERYL KLEEMAN, v. CIVIL ACTION -LAW IN CUSTODY Defendant INTERIM ORDER OF COURT AND NOW, this /3~ day of , 2006, upon consideration of the attached Custody Conciliation Summary~teport, it is hereby ordered and directed as follows: 1. A hearing is~cheduled in Courtroom Number 5 of the Cu Berland County Courthouse, on the .3 day of 2006, at ~~ 3 D o'clock M., at which time testimony will be taken. or the purposes of the hearing, the Plaintiff, aymond Holloway, 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. 2. Physical Custody. Pending hearing or further agreement of the parties, Mother shall have temporary primary physical custody subject to Mr. Holloway's partial physical custody, which shall be arranged as follows: Commencing April 14, 2006, on alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m., and on each Wednesday from 5:00 p.m. to 7:30 p.m. 3. Transportation. Transportation incident to custodial exchanges shall be provided by the parent receiving custody of the child. BY THE COURT: Dist: ~,~. ~4 \~ J. Shana M. Pugh, Esq., 2108 Market Street, Camp Hill, PA 17011 ~ ~3 ~ &pD Carl G. Wass, 3631 ty. Front Street, Harrisburg, PA 17110 \ a31 - ~or•l ~~ 3~V ~~~ ~. 1 .~ ,. ~"°i ,~ _, ~,. ~~~ ,':, '- ~- _. I~ ' APR 0 7 2006 I i~,Y:~== RAYMOND HOLLOWAY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 06-668 CIVIL TERM v. CIVIL ACTION -LAW CHERYL KLEEMAN, IN CUSTODY 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: 1. The pertinent information concerning the child who is the subject of this litigation is as follows: NAME DATE OF BIRTH Hannah Rose Kleeman March 25, 2002 CURRENTLY IN THE CUSTODY OF Mother 2. The Plaintiff filed a Complaint for custody on February 1, 2006. A Custody Conciliation Conference was scheduled for March 17, 2006 with the following individuals in attendance: the presumptive Father, Raymond Holloway, and his counsel, Shana M. Pugh, Esquire; the Mother, Cheryl Kleeman, and her counsel, Carl G. Wass, Esquire. This was the parties' first Custody Conciliation Conference. 3. Father's position on custodv is as follows: Father and Mother were married but separated and dating during the time that the child was conceived and born. No DNA testing has been done. In his pleadings, he identifies himself as the presumptive Father. The parties reconciled for a period of approximately 11 months from December 2004 through November 2005. During that time, Father alleges that he was in loco parentis to the almost four year old child, Hannah Rose. Father is employed as the Director of Maintenance for Loyalton. He seeks a partial custody schedule, which would include alternating weekend periods of custody. Father reports that when the parties separated on or about November 23, 2005, he was able to continue some limited contact with the child by negotiating with the Mother. For instance, he reports that when Mother would go bowling, she would sometimes allow him to have periods of partial custody on Thursday evenings. Father believes there is a bond between he and the child and therefore would like to continue the relationship. 4. Mother's position on custodv is as follows: Mother resides in Newburg with her sister and her sister's family. She and Father are still married. She acknowledges that NO. 06-668 CIVIL TERM the child was conceived and born during the marriage, but during a period of separation during which the parties continued to see each other. Mother intends to file for divorce. Mother did not list a Father on the birth certificate and has not identified whom she believes is the biological Father of the child. She does not believe that the Plaintiff is the Father of the child. While she acknowledges that there was some contact between the child's birth and the time of their reconciliation in December 2004, she denies that she resided with him or that there is a bond between the child and the Plaintiff, except to the extent that she alleges Father is forcing this to occur. Mother is employed at the Department of Labor and Industry with the Commonwealth of Pennsylvania. It is her desire that the child have no contact with the Plaintiff. 5. Because the parties are not able to reach an agreement about any contact between the Plaintiff and the four-year old, a hearing will be necessary. The Conciliator recommends that this matter be expedited. The Conciliator makes a recommendation for interim periods of partial custody for Mr. Holloway until such time as a determination has been made as to Mother's claim that he is not the Father, which essentially amounts to a claim that Mr. Holloway lacks standing. It is noted that, as of the time of the Custody Conciliation Conference on March 17, 2006, no preliminary objections as to the Plaintiff's standing have been filed by the Defendant. This physical custody recommendation was made in consideration of the fact that the parties had resided together with the child for a period which extended from December 2004 until November 23, 2005. Consideration should be given to the fact that the four-year old presumably had regular contact with him during that period of time. In the event that the Court finds that Mr. Holloway has standing, either as the presumptive Father or as a result of standing in loco parentis, the longer this separation between the four-year old and Mr. Holloway continues, the more difficult of an adjustment it will be for the child . a e Melissa Peel Greevy, Esquire Custody Conciliator :271544 RAYMOND HOLLOWAY PLAINTIFF V. CHERYL KLEEMAN DEFENDANT IN THE COIJRT OF COMMON PLEASE CUMBERLAND COUNTY, PENNSYVANIA 06-668 CIVIL ACTION LAW IN CUSTODY PRELIMINARY OBJECTIONS TO COMPLAINT FOR CUSTODY AND, NOW, comes Cheryl Kleeman, Defendant in the above-captioned custody action, by her attorney, Carl G. Wass, Esquire, Caldwell & Kearns, PC, and files the following Preliminary Objections to the Complaint for Custody. LACK OF CAPACITY TO SUE/LACK OF STANDING 1. The minor child who is the subject of the within complaint for custody is Hannah R. Kleeman, age 4, born March 25, 2002. 2. The Plaintiff and the Defendant were married on July 11, 1998, are presently separated from each other, and the Defendant, Cheryl L. Kleeman, has filed a Complaint in Divorce from the said Raymond G. Holloway, Jr., said Complaint in Divorce having been filed on March 30, 2006, in the Cour[ of Common Pleas of Cumberland County Pennsylvania at Number 06-1868 Civil Term. 3. From the date of their marriage on July 11, 1998, until the date the Complaint in Divorce was filed on March 30, 2006, the parties have experienced marital difficulties which have caused their marital relationship to be one where they have resided separate and apart from each other for a greater period of time then they have co-habited with each other. Following is a timeline of the period when the parties lived separate and apart and when they co-habited with each other: ,iuly 11, 1998 -January 19, 2001 January 19, 2001 -December 4, 2004 December 4, 2004 -November 23, 2005 November 23, 2005 -Present Co-Habited Separate and Apart Co-Habited Separate and Apart 4. The parties first separated on January 19, 2001 and lived separate and apart until after the birth of the minor child, having no intimate relations with each other; the minor child was bom on March 25, 2002, a period of time more than 14 months following the separation of the parties; thus, it is averred that the Plaintiff is not the natural father of the minor child and lacks standing and/or capacity to maintain the instant Complaint for Custody. 5. The Plaintiff, Raymond G. Holloway, Jr., has set forth in his Complaint for Custody what, on the surface, appear to be inconsistencies in his allegations. Specifically, in Paragraph 3 he alleges he is the "father of the child," yet, in Paragraph 4 he alleges that he is the "presumptive father." Nowhere in the Complaint for Custody does Plaintiff aver that he is the natural father of the minor child, yet, in Paragraph 5 of his Complaint he avers and acknowledges that the Defendant, Cheryl Kleeman, is the natural mother of the child. 6. The Plaintiff, Raymond G. Holloway, Jr., is the father of three children by a prior marriage, a son who is age 18, and two twin sons, both of whom are age l7. Your Defendant has been informed, believes, and therefore avers, that the Plaintiff, while he was previously married, and after the birth of his three children, and prior to his subsequent divorce, did undergo a surgical procedure which rendered him incapable of procreating or thereafter becoming the natural father of any child. 7. The facts averred in the above Paragraph 6 occurred prior to the marriage of Plaintiff and Defendant on July 11, 1998. WHEREFORE, Defendant prays Your Honorable Court dismiss the within Complaint for Custody. ~~ Z Date Carl G. Wass, Esq~` e Caldwell & Kearns, PC 3631 N. Front Street Harrisburg, PA 17110 (717) 232-7661 ID # 07268 Attorney for Defendant OS-790/100777 VERIFICATION I, Cheryl L. Kleeman, verify that the facts set forth in the within "Preliminary Objections" are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalty of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. OS-790/100778 ~, _, : , RAYMOND HOLLOWAY, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO.2006-668 CHERYL KLEEMAN :CIVIL ACTION-LAW Defendant :CUSTODY NOTICE YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO THE OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association Two Liberty Avenue Carlisle, PA 17013 (717) 249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities 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. RAYMOND HOLLOWAY, Plaintiff vs. CHERYL KLEEMAN Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0.2006-668 CIVIL ACTION-LAW CUSTODY AMENDED COMPLAINT FOR CUSTODY AND NOW, Plaintiff, by and through his attorneys, The Law Offices of Patrick F. Lauer, Jr., LLC, files an Amended Complaint for Custody against Defendant, and in support thereto, avers the following: 1. Plaintiff is Raymond Holloway, who currently resides at 4005 Rider Lane, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 2. Defendant is Cheryl Kleeman, Mother, who currently resides at 319 Turnpike Road, Newburg, Cumberland County, Pennsylvania, 17420. 3. Plaintiff seeks custody of the fallowing child: Name: Hanna Rose Kleeman Present Address 319 Turnpike Road Newburg, PA 17240 Age: 4 (D.O.B. 03/25/02) 4. The child was not born out of wedlock. 5. The child is presently in the custody of Cheryl Kleeman, who currently resides at 319 Turnpike Road, Newburg, Pennsylvania, 17420. 6. During the past five years, the child has resided with the following persons and at the following addresses: Persons: Addresses: Dates: Cheryl Kleeman 319 Turnpike Rd. Nov, 2005- Brian Deimler Newburg, PA present Bonnie Deimler Charlees Deimler Holly Deimler Raymond Holloway Wertz Avenue Dec. 2004- Cheryl Kleeman Mechanicsburg, PA Nov. 2005 Cheryl Kleeman Fourth Street Feb. 2004- Brian Kleeman New Cumberland Dec. 2004 Raymond Holloway 6 Mill Road March 2002- Cheryl Kleeman Mechanicsburg, PA Feb. 2004 7. The Mother of the child is Cheryl Kleeman, who resides at the address referenced in Paragraph Two above. 8. She is married to Plaintiff, Raymond Holloway. 9. The natural father of the child is unknown. 10. The Plaintiff; Raymond Holloway, has been acting in loco parentis since the child's birth: A. The Plaintiff holds the child out as his own, with prior knowledge and consent of the Defendant; B. The Defendant has held the child out as being a child of the marriage prior to the parties final separation; C. The child refers to the Plaintiff as her father; D. The Plaintiff and the Defendant have lived as a family unit; E. The Defendant has allowed the Plaintiff to visit the child during periods of separation. 11. The Plaintiff is married to the Defendant. 12. The relationship of Defendant to the children is that of natural Mother. Defendant currently resides with the following persons: Name: Bonnie Deimler Brian Deimler Charles Deimler Holly Deimler Relationship: Sister Brother-in-law Nephew Niece 13. Plaintiff has not participated as a party or witness, or in another capacity in other litigation concerning the custody of the children in this or another court. 14. An Interim Order of Court was entered on April 13, 2006, granting Plaintiff partial physical custody. (See attached Exhibit "A" incorporated herein through reference.) 15. A proceeding regarding the custody of this child is scheduled for May 3, 2006, in Courtroom Number 5. (See attached Exhibit "A") 16. Plaintiff does not know of a person not a party to the proceedings who has physical custody of the children or claims to have custody or visitation rights with respect to the children. 17. The best interests and permanent welfare of the child will be served by granting the relief requested because: (a) the Plaintiff is able to provide a stable home for the child; (b) the Plaintiff is economically able to care for the child; (c) the Plaintiff has been a caretaker of the child since birth. 18. The biological father of the child is unknown to either party and cannot, therefore, be named a party to this action, The person who has physical custody of the children has been named as a party to this action. WHEREFORE, Plaintiff respectfully requests this honorable Court enter an Order granting him partial physical custody of the child. Respectfully submitted, ~ i „ hana M. Pugh, Es uire~ Law Office of Patrrck F. Lauer, Jr., LLC 2108 Market Street, Aztec Building Gamp Hill, Pennsylvania 17011 Dater 1 L~~ ID# 200952 Tel. (717) 763-1800 RAYMOND HOLLOWAY, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. 2006-668 CHERYL KLEEMAN :CIVIL ACTION-LAW Defendant :CUSTODY ATTORNEY VERIFICATION The undersigned attorney hereby verifies and states that: She is the attorney for Raymond Holloway; 2. She is authorized to make this verification on behalf of the client; 3. The facts set forth in the foregoing are known to her and not necessarily to her client; 4. This verification is intended to expedite the litigation; 5. A verification of the client will be supplied if demanded; The facts set forth in the foregoing are true and correct to the best of her knowledge, information, and belief; and 7. She is aware that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities. Dater G' 1 ~ ~ ~! ,~ ----~'~- .. ~; Shana M. Pugh, Esquire 2108 Market St., Aztec Building Camp Hill, PA 17011 Id. No. 200952 Tel. No. (717)763-1800 ~~-~~~ ~ G RAYMOND HOLLOWAY, Plaintiff v. CHERYL KLEEMAN, Defendant IN THE COURT OF COM CUMBERLAND COUNTY, APR 0 7 2006 PLEAS OF t NO. 06-668 CIVIL TERM CIVIL ACTION -LAW IN CUSTODY INTERIM ORD R OF COURT AND NOW, this _ day of , 2006, upon consideration of the attached Custody Conciliation Summa Report, it is hereby ordered and directed as follows: 1. A hearing is sFheduled in C room umber of the Cumberland County Courthouse, on the pa day of 2006, at ~~ o'clock _.M., at which time testimony will be tak r the purposes of the hearing, the Plaintiff, Raymond Holioway, shall be deemed to bet moving party and shall proceed initially with testimony. Counsel for the parties or the arties 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. 2. Physical Custody. Pending hearing or further agreement of the parties, Mother shall have temporary primary physical custody subject to Mr. Holloway's partial physical custody, which sha{I be .arranged as follows: Commencing April 14, 2006, on alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m., and on each Wednesday from 5:00 p.m. to 7:30 p. m. 3. Transportation. Transportation incident to custodial exchanges shall be provided by the parent receiving custody of the child. BY THE COURT: S J. >, , ~ ~~.. Dist: Shana M. Pugh, Esq., 2108 Market Street, Camp Hill, PA 17011 ~F ,~ ~ ,.p? Carl G. Wass, 3631 N. Front Street, Harrisburg, PA 17110 T ' # ` '<„ " -~ ~~ di ,py i1znd steal 0'i sai^~'~rt O1 is 'rlisle,'Pa and ~~ .. ,, A " .~ ~,'i ,..~ RAYMOND HOLLOWAY, Plaintiff V CHERYL KLEEMAN, Defendant IN RE: CUSTODY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-668 CIVIL TERM IN CUSTODY ORDER OF COURT AND NOW, this 5th day of May, 2006, upon consideration of the complaint of the Plaintiff for custody, the Defendant's response thereto, and, after hearing, it is now ORDERED AND DIRECTED that the parties in this case shall file Proposed Findings of Fact and Conclusions of Law with legal briefs in support of their findings on or before the close of business on May 19, 2006. Pending further Order of Court legal and physical custody of the child, Hannah Rose Kleeman, will rest exclusively with the natural mother. By the Court, M. L. Ebert, Jr., J. ~hana Pugh, Esquire For the Plaintiff ~arl G. Wass, Esquire For the Defendant :mtf ~q 0 0~ dlti~ a ^;1:~S~1PS3d 6E ~£ Nd S- ~n~ R~OZ Aaalo~vax~oa~ ~u. ~o ~a~ao-a~~ RAYMOND HOLLOWAY, Plaintiff v. CHERYL KLEEMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA DOCKET NO. 06-668 CIVIL TERN CIVIL ACTION -LAW IN CUSTODY MOTION FOR EXTENSION OF TIME AND NOW, comes the Plaintiff, Raymond Holloway, by and through his counsel, Kara W. Haggerty, Esquire of ABOM & KUTULAKIS, L.L.P., and files the following Motion for Extension of Time in which to file Proposed Findings of Fact and Conclusions of Law with legal briefs in support thereof and, in support thereof, avers as follows: 1. On or about February 1, 2006, a Complaint for Custody was filed on behalf of Father seeking custody of one minor child, Hannah Rose Kleeman, born March 25, 2002. 2. On April 13, 2006, a temporary Order of Court for custody was entered granting Mother primary physical custody and Father partial physical custody on alternating weekends and one (1) night per week. (A copy of the April 13, 2006, Order of Court is attached hereto as 'Exhibit A'). 3. A custody trial was held before This Honorable Court on May 3, 2006, and extended into May 5, 2006, at which time This Court ordered Findings of Fact and Conclusions of Law to be submitted no later than Friday, May 19, 2006. 4. Defendant's attorney, Carl Wass, Esquire, requested an extension of time in which to submit the memorandums of law that was granted making the due date Wednesday, May 24, 2006. 5. Undersigned counsel was retained to represent Father/Plaintiff on May 18, 2006. 6. Undersigned counsel filed her entry of appearance on May 22, 2006. 7. Undersigned counsel contacted the Cumberland County Court Reporter to request a transcript of the custody trial. Undersigned counsel was advised that the transcript will likely be available early in the week of May 22, 2006. 9. Undersigned counsel requests an extension of time in which to file a memorandum of law in order to read and review the trial transcript in order to cite to the appropriate facts of record. 6. Defendant's Attorney Carl Wass indicates that he concurs in the granting of this Motion. Respectfully submitted, ABOM & KUTULAK/S, L.L.P. V• Kara W. Haggerty, uire o Attorney I.D. No. 8 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 (717) 249-3344 Fax Date: May 22, 2006 Attomey for Plaintiff RAYMOND HOLLOWAY, Plaintiff v. CHERYL KLEEMAN, Defendant INTERIM ORDER OF COURT IN CUSTODY AND NOW, this _ day of , 2006, upon consideration of the attached Custody Conciliation Summar< Report, it i~ hereby ordered and directed as follows: 1. A hearin ~Is~~r heduled in C room umber.] of the Cumberland County Courthouse, on the _._1:. day of 2006, at ~`~_ o'clock _.M., at which time testimony will be tak r the purposes of the hearing, the Plaintiff, Raymond Holloway, shall be deemed to bet moving party and shall proceed initially with testimony. Counsel for the parties or the arties 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. 2. Physical Custody. Pending hearing or further agreement of the parties, Mbltier shall have temporary primary physical custody subject to Mr. Holloway's partial physical custody, which shall be arranged as follows: Commencin_ April 14 2006 on alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m~L1d on each 3. Transportation. Transportation incident to custodial exchanges shall be provided by the parent receiving custody of the child. BY THE COURT: ..,~- =, 3 ~, -, ,, ~ . ~,' ~ qp".R 0 7 2006 IN THE COURT OF COM PLEAS OF CUMBERLAND COUNTY, N0. 06-668 CIVIL TERM CIVIL ACTION -LAW S ~ J. Dist: Shand M. Pugh, Esq., 2108 Market Street, Camp HiII, PA 17011 ~~ ~, _ ,,, ,~ ~.,, < ~ n ,~;~",~~ Carl G. Wass, 3631 N. Front Street, Harrisburg, PA 17110 t ~ i :, ~ In Test~~n~~y ~' ', I''~.~: ~,~o sat my hared and~~ ~~/~,5a d C Sri ai rlisle, Fa. ~ I RAYMOND HOLLOWAY, IN THE COURT OF COMMON PLEAS OF _ Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA y_ -. ,- 06-668 CIVIL TERM CHERYL;; KS,EEMAN, _;:-; :; LN, CtJS.Tfl:DY: ,,.' = - befendant IN RE: CUSTODY ORDER OF COURT AND NOW, this .5th day of May, 2006, upon consideration of the complaint of the Plaintiff for custody, the Defendant's response thereto, and, after hearing, it is now ORDERED AND DIRECTED that the parties in this case shall file Proposed Findings of Fact and Conclusions of Law with legal briefs in support of their findings on or before the close of business on May 19, 2006. Pending further Order of Court legal and physical _ ..:_.. custody of t he child, Hannah Rose~Kleeman, will rest exclusively with the natural mother. By the Court, M. L. Ebert, Jr., J. Shana Pugh, Esquire For the Plaintiff Carl G. Wass, Esquire For. the Defendant :mtf { ~ ~~ `•r~fi iii j~ jl?il~ ~., ally t i l,i `c j ~1C t, i ~3~~~~^~0, fie. / 1/ it , / / . i CERTIFICATE OF SERVICE I, Kara W. Haggerty, Esquire, hereby certify that on this 22nd day of May, 2006, a true and correct copy of the foregoing Motion for Extension was served upon the party named below via First Class Mail addressed as follows: Carl Wass, Esquire 3631 North Front Street Harrisburg, PA 17110 C'7 c o c Q -n , -nc' ~' ~ _, N ~m N ~ . i r.: ~~ ~_ -cs ::+Y ' ~ -r, ,' `*~ _~ C r .. ry U1 (,~2 -~C RAYMOND HOLLOWAY, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. DOCKET NO.~ ~ ~IL TERM CHERYL KLEEMAN :CIVIL ACTION -LAW Defendant IN CUSTODY TO THE PROTHONOTARY OF SAID COURT: PRAECIPE TO WITHDRAW APPEARANCE Please withdraw my appearance on behalf of the Plaintiff, Raymond Holloway, in the above- captioned matter. Respectfully DATE ~ ~~ 0 ~~ Shana M. Pugh, Es ' e The Law Offices o atrick F. Lauer, Jr., L.L.C. 2108 Market Street Camp Hill, PA 17011 (717) 763-1800 PRAECIPE OF ENTRY OF APPEARANCE Please enter my appearance on behalf of the Plaintiff, Raymond Holloway, in the above- captioned matter. DATE D~ ZZ D(o Respectfully submitted, Aao~r& KU7vz.~~s, T T P Kara W. Haggerty, E ' e 36 South Hanover Str Carlisle, PA 17013 (717) 249-0900 ID No. 86914 N a ~ Cy ~ m ~~ rn s -c ,. rn n ~? - r ~ N .~ ~C - , . _ " ` ' ~ ~ C~~' '`~ ~ ~- W ~ MAY 2 2 2096 RAYMOND HOLLOWAY, Plaintiff v. CHERYL KLEEMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA DOCKET NO. 06-668 CIVIL TERN CIVIL ACTION -LAW IN CUSTODY ORDER cd AND NOW, this '3.3 day of May, 2006, upon due consideration of the within Motion of Raymond Holloway for an extension of time in which to file a memorandum of law, it is hereby ORDERED and DECREED that said Motion is GRANTED. The parties 7 shall have until clost o~ boi~~~-S, the is day of ~~~~ , 2006, in which to file their Findings of Fact and Conclusions of Law with legal briefs in support thereof. BY THE COURT: ~,^ M. L. Ebert, Jr., J. ara W. Haggerty, Esquire For the Plaintiff arl Wass, Esquire J For the Defendant ~'"~O\o .~ b~ it..~.1jr?~ ~'~Vi~~ Z I ~5 I~I~ £Z At~ud 9001 Rd~'10i~0i-LC'~d 3Mi ~a RAYMOND HOLLOWAY, Plaintiff v. CHERYL KLEEMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA DOCKET NO. 06-668 CIVIL TERN CIVIL ACTION -LAW IN CUSTODY MOTION FOR EXTENSION OF TIME AND NOW, comes the Plaintiff, Raymond Holloway, by aind through his counsel, Kara W. Haggerty, Esquire of ABOM & KUTULAKIS, L.L.P., and files the following Motion for Extension of Time in which to file Proposed Findings of Fact and Conclusions of Law with legal briefs in support thereof and, in support thereof, avers as follows: 1. On or about February 1, 2006, a Complaint for Custody was filed on behalf of Father seeking custody of one minor child, Hannah Rase Kleeman, born March 25, 2002. 2. On April 13, 2006, a temporary Order of Court for custody was entered granting Mother primary physical custody and Father partial physical custody on alternating weekends and one (1) night per week. (A copy of the April 13, 2006, Order of Court is attached hereto as 'Exhibit A'). 3. A custody trial was held before This Honorable Court on May 3, 2006, and extended into May 5, 2006, at which time This Court ordered Findings of Fact and Conclusions of Law to be submitted no later than Friday, May 19, 2006. 4. Defendant's attorney, Carl Wass, Esquire, requested an extension of time in which to submit the memorandums of law that was granted making the due date Wednesday, May 24, 2006. 5. Undersigned counsel requested an extension of time in which to submit the memorandums of law that was granted making the due date Thursday, June 1, 2006. 6. Undersigned counsel contacted the Cumberland tyounty Court Reporter to request a transcript of the custody trial. 7. Undersigned counsel has not received the transcript of the custody trial to utilize in drafting the memorandum of law. Undersigned counsel requests an extension of time in which to file a memorandum of law in order to read and review the trial transcript in order to cite to the appropriate facts of record. 6. Defendant's Attorney Carl Wass was contacted regarding his position; however, he was not available at the time of the filing of this Motion. Respectfully submitted, ABOM & KUTULAKIS, L.L.P. I~,D Kara W. Haggerty, Esq /' Attorney LD. No. 8691 U 36 South Hanover Street Carlisle, PA 17013 (717)249-0900 (717)249-3344 Fax Date: May 31, 2006 Attorney for Plaintiff CERTIFICATE OF SERVICE I, Kara W. Haggerty, Esquire, hereby certify that on this 31~ day of May, 2006, a true and correct copy of the foregoing Motion for Extension was'served upon the party named below via First Class Mail addressed as follows: Carl Wass, Esquire 3631 North Front Street Harrisburg, PA 17110 `~-~ G ~' C 7 S:T'~ ~l .. ~^_. -~ - rr W L^~ r= " L y. ~ ^' ~ ~1~ LT ` C~ f ~ RECEIVED MAY 312IX)6 RAYMOND HOLLOWAY, ~ IN THE COURl~ OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNA v. CHERYL KLEEMAN, DOCKET NO. OG-668 CIVIL TERN Defendant CIVIL ACTION -LAW IN CUSTODY ORDER AND NOW, this ~1S~day of Mo..~ , 2006, pon due consideration of the within Motion of Raymond Holloway for an extension of memorandum of law, it is hereby ORDERED and DECREED GRANTED. The parties shall have until the 1y~`day of which to file their Findings of Fact and Conclusions of Law with thereof. BY THE in which to file a said Motion is 2006, in briefs in support M. L. Ebert, Jr., J.~ Kara W. Haggerty, Esquire For the Plaintiff Carl Wass, Esquire For the Defendant - Go~~. ~9 C ~~ ~ . -, xF - r. ~ ~ ~~, ~ R, ; ;: °-- w =`~ ; ,c3 ., :~ m ~ ~=7 _ ; n RAYMOND HOLLOWAY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. 06-0668 CIVIL CHERYL KLEEMAN CIVIL ACTION -LAW Defendant IN CUSTODY IN RE: PETITION FOR PARTIAL CUSTODY BEFORE EBERT. J. V~, ORDER OF COURT AND NOW, this 21 S' day of June, 2006, following a hearing, and after consideration of the legal memorandums filed by the parties, IT 15 HEREBY ORDERED AND DIRECTED that Plaintiff Raymond Holloway's request for partial physical custody is DENIED. BY THE COURT, vfCara W. Haggerty, Esquire 36 South Hanover Street Carlisle, PA 17013 For the Plaintiff ~C'arl Wass, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 For the Defendant M.L. Ebert, Jr., J. R~'O V ~ii~l" '~I''~~ ~r• .,_ ~~a ~ -~r+~i1 ~ ~ : E E ~~°~ i z enr ~~ra RAYMOND HOLLOWAY, Plaintiff v. CHERYL KLEEMAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO: 06-668 CIVIL TERM CIVIL ACTION-LAW IN CUSTODY PETITION FOR ENBANC RECONSIDERATION OF ORDER DENYING PLAINTIFF PARTIAL PHYSICAL CUSTODY AND NOW, this 7th day of July, 2006, comes the plaintiff, Raymond Holloway, by and through his attorney, Kaza W. Haggerty, Esquire, of Aaona & KUTULAKIS, L.L.P., and avers as follows: 1. Pursuant to the Order of this Honorable Court dated June 21, 2006, the plaintiff, Raymond Holloway's attempt, to gain partial physical custody of Hannah Kleeman was denied. ~ 2. Plaintiff stands in loco parentis to Hannah Kleeman. In its post-hearing brief, the defendant, Cheryl Kleeman, conceded the fact that Raymond Holloway stands in loco parentis to Hannah Kleeman.2 3. Although Hannah is 4 years of age, Cheryl Kleeman has never identified to the Defendant or the Court the actual name of Hannah's biological father. As a result, Hannah's biological father has neither had any role, nor served any function in Hannah's life. 4. Hannah has received no emotional, supervisory, or financial support from her biological father. However, Raymond Holloway has provided considerable emotional, supervisory, and financial support for Hannah Kleeman, which serves as the basis for his in loco parentis status. ' See Order of the Court, dated June 21, 2006. z See Post-Trial Memorandum of the Defendant Cheryl Kleeman, at 1-3, and 5. 5. Denying Raymond Holloway the chance to continue to act in loco parentis works an injustice on Hannah as it deprives her of the chance to have a willing and loving father who is able and willing to contribute to her care, protection, hygiene, nutrition, and general physical, emotional, and financial well-being. 7. Allowing Cheryl Kleeman to not identify the biological father while alienating Raymond Holloway as a father figure, caretaker, and financial contributor deprives Hannah of the chance to have any father participate in her growth and development. 8. Pursuant to Rule 227.2 of the Pennsylvania Rules of Civil Procedure, which states "All post-trial motions and other post-trial matters shall be heazd and decided by the trial judge unless the trial judge orders that the matter be heard by a court en banc of which the trial judge shall be a member," this Honorable Court has the authority to grant en banc reconsideration.3 9. As the Pennsylvania Superior Court has stated, "The conclusions of the trial judge, being no more than his reasoning from the facts, aze always reviewable, either by the court in banc or by an appellate court.s4 s For an example of the Cumberland County Court of Common Pleas granting en banc review, see In re Dyarman, 2001 WL 1179418 (Pa.Com.Pl. 2001). For examples of the Court of Common Pleas of other counties granting en banc review, see Prud'homme v. Prud'homme, 2000 WL 33223700 (Pa.Com.Pl. 2000); Fawber v. Dauphin County Tax Claim Bureau, 1487 WL 45427 (Pa.Com.Pl. 1987); Wein v. Willlamsport Hospital, 1998 WL 1068973 (Pa.Com.Pl. 1998). ° Com. v. Gregory, 14b A.2d 624, 628 (Pa.Super Ct. 1958). WHEREFORE, the Defendant respectfully requests that This Honorable Court: a. Review and Reconsider en banc the Order of June 21, 2006; b. Vacate the Order Denying the Plaintiff Partial Physical Custody of Hannah Kleeman; and c. Grant the plaintiff Partial Physical Custody to include at a minimum, every other weekend and one night each week. Respectfully submitted, Aeonr & KuracnKis, L.L.P. l~i(~ Kara W. Haggerty, E 36 South Hanover Street Carlisle, Pennsylvania 17013 (717)249-0900 Supreme Court ID# 86914 Attorney for Plaintiff RAYMOND HOLLOWAY, IN THE COURT OF COMMON Plaintiff CUMBERLAND COUNTY, PEA v. 06-0668 CIVIL CHERYL KLEEMAN CIVIL ACTION -LAW Defendant IN CUSTODY IN RE: PETITION FOR PARTIAL CUSTODY BEFORE EBERT. J. ORDER OF COURT BY THE COURT, AND NOW, this 21 sc day of June, 2006, following a hearing, and after consideration of ,i, .l~N , ~~ c ~ ?~~6 the legal memorandums filed by the parties, IT IS HEREBY ORDERED AND DIRECTED that Plaintiff Raymond Holloway's request for partial physical custody is DENIED. Kara W. Haggerty, Esquire 36 South Hanover Street Carlisle, PA 17013 For the Plaintiff Carl Wass, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 For the Defendant 1 M.L. Ebert, Jr., J. RAYMOND HOLLOWAY, Plaintiff v. CHERYL KLEEMAN Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET N0. 06-668 CIVIL TERM CIVIL ACTION - LA W IN CUSTODY POST-TRIAL MEMORANDUM OF LAW OF THE DEFENDANT CHERYL KLEEMAN I. PROCEDURAL STATUS OF PLAINTIFF: "IN LOCO PARENTIS" The Complaint for custody filed by Raymond Holloway in the present case alleged in pazagraph 3 that he was the "father of the child", and in paragraph 4, he alleged that he was the "presumptive father" of the child. The Defendant, Cheryl Kleeman filed Preliminary Objections to that Complaint, presuming that Raymond Holloway intended to offer testimony that he was either the natural father or was by virtue of marriage to the Defendant the "presumptive father" of the child who was in fact born while the parties were still legally married. In response to the Preliminary Objections, the Plaintiff filed an Amended Complaint in which he correctly averred, in paragraph 9 thereof, that: "The natural father of the child is unknown." And, in paragraph 10, the Plaintiff averred that he actually held a different status with regard to the child (Hannah Rose Kleeman), to wit: that he "...has been acting in loco parentis since the child's birth...". The foundation for the filing of the Preliminary Objection is made perfectly clear from the text of the Plaintiff's Amended Complaint when he declares that the "natural father" is "unknown" and, instead, sets forth an alternate foundation for his claim for custody by declaring that he had stood in a position of "in loco parentis". The fact of the matter is that the Preliminary Objection to the original Complaint of the Plaintiff was directed to his allegations that he was either the "father" or the "presumptive father" of Hannah Kleeman. The change in the legal theory of the Plaintiff as set forth in his Amended Complaint has served to change his position significantly, and the testimony at trial has served also to demonstrate that the Plaintiff cannot maintain the allegations set forth in his original Complaint. It was clear through testimony at the trial of this case that: 1) The Plaintiff had experienced a vasectomy many years prior to his marriage to Cheryl Kleeman and was incapable of procreation; 2) The Plaintiff and Defendant had been separated from each other, and had no intimate relations with each other for a period of approximately 14 months prior to the birth of Hannah Kleeman; and, 3) When afforded the opportunity, after the birth of Hannah, to have his name inserted upon her birth certificate, in lieu of the blank space thereon, which identified no father, Raymond Holloway failed to respond to that invitation. 2 Thus, the Plaintiff, by "shifting gears", now claims that, though he is not the natural father or presumptive father of Hannah he did, during the period of reconciliation between him and Cheryl Kleeman, act in the capacity of "in loco parentis" with regard to Hannah and that; therefore, he: a) Has "standing" to maintain and be heard upon his Amended Complaint for Custody, and, b) By reason of his "in loco parentis" status, is entitled to "partial physical custody" of Hannah because such is in the "best interest and permanent welfare of the child...." In view of the "shifting of gears" taken by the Plaintiff in his Amended Complaint the first question which needs to be addressed by Your Honorable Court is whether or not that period of time of reconciliation of the parties, living in a common household, with Hannah as a part thereof, provides sufficient standing so as to entitle him to be heard by Your Honorable Court. Given the more accurate and honest depiction of his position and/or status with regard to Hannah Kleeman, and in view of a number of opinions of the Superior Court of Pennsylvania, the Defendant has little choice but to concede that the Plaintiff does have standine to be heard, and he has in fact been heard. 3 That the Plaintiff has standing to be heard when he alleged an "in loco parentis" status, and when he (and Cheryl Kleeman as well) acknowledged a reconciliation of their marriage and consequent cohabitation in a single household, in which Hannah was a part for eleven plus months (from December 4, 2004 to November 23, 2005) seems rather clear. The Plaintiff has standine to be heard founded upon the eleven plus month period of cohabitation in the same household with the child prior to the final separation of the parties. However, equally clear is the position of the Pennsylvania Superior Court with regazd to the extent to which the status of "in loco parentis" is to be carried. Perhaps, the leading case on the subject is J.A.L. v. E.PH., 682 A.2d 1314, 453 Pa.Super.78 (1996). In that case, at 682 A.2d, page 1319, Judge Beck set forth the "concept of standing" which led the Superior Court to remand that case back to the Trial Court for further proceedings. Judge Beck first acknowledged that the lesbian couple in that case had carefully planned and pursued artificial insemination so that one of the couple might bear a child. She then further acknowledged that where the litigant is not a biological pazent (or a "presumptive parent"), or a grandparent, that person stands in the position of a thirdparty in claiming "in loco parentis" status. She then went on to declare: "It is important to recognize that in this context, the term `prima facie right to custody,' means only that the party has a colorable claim to custody of the child. The existence of such a colorable claim to custody grants standing only. In other words, it al]ows the party to maintain an action to seek vindication of his or her claimed rights. A finding of a prima facie right sufficient to establish standing does not affect that party's evidentiary burden: in order to be granted full or partial custody, he or she must still establish that such would be in the best interest of the child under the standards applicable to third parties. 4 "Thus the use of the term `prima facie right to custody' in a standing inquiry must be distinguished from the use of that term in the context of determining custody rights as between a parent and anon-parent. In this latter context, the natural parent's prima facie right to custody has the effect of increasing the evidentiary burden on the non-parent seeking custody. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980); (Other citations omitted)." As has been conceded by the Defendant, the slightly less than one year of residency in the same household meets the criteria of the Superior Court for purposes of Plaintiffs standin ; however, as set forth above, Judge Beck made it clear that: "...in order to be granted full or partial custody, he or she must still establish that such would be in the best interest of the child under the standards applicable to third parties." Judge Beck then ended her opinion with a footnote at page 1323 (footnote number 7) and declared: "We emphasize once again that our determination today does not change the standard applicable to J.A.L.'s claim for partial custody as against the child's biological parent. J.A.L., although in loco parentis for standing purposes, remains a third party for purposes of evaluating her claim for partial custody." Ke110EE v. Kelloee, supra. BEST INTERESTS OF THE CHILD Based upon the foregoing, the parties presently find themselves in precisely the position which Your Honorable Court knew they would be when he requested they each address in their separately filed Legal Memoranda: that each Counsel address "in loco parentis" and that each Counsel address "what is in the best interests of the child." It is in this latter context that the Plaintiff seeks to drive a wedge in the consistent-from-birth natural and biological relationship between mother and daughter (four plus years) by advancing his short term involvement "in loco 5 parentis" during which Hannah was exiting the age of two years and moving through her third year of life. The Pennsylvania Superior Court has consistently set forth the standard by which the "best interests of the child" will be detennined and, additionally, has set forth quite clearly the primary responsibility for fact-findine, which resides exclusively in the Trial Court. In Arnold v. Arnold, 847 A.2d 674 (Pa.Super.2004), at page 677, the Superior Court accepted, in toto, the following standard: "Our paramount concern and the `polestar of our analysis in this case, and a legion of prior custody cases, [is] the best interests of the child.' The `best interests' standard, decided on a case-by-case basis, considers all factors which legitimately have an effect upon the child's physical, intellectual, moral, and spiritual well-being. On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the fact-finding function of the trial court in order to substitute our judgment for that of the trial court. Rather, we are bound by findings supported in the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court. Sawko v. Sawko, 425 Pa.Super. 450, 625 A.2d, 692, 693 (1993) (citations omitted)." See also: Lee v. Fontine, 406 Pa.Super 487, 594 A.2d 724, (1991); and, Zummo v. Zummo, 394 Pa. Super 30, 574 A.2d 1130 (1990). In each of the above-referenced cases, two words consistently utilized stand out and are uniquely applicable in the present case, to wit: "...physical" and "moral" well-being. Your Honorable Covert will well remember the uncontradicted testimony of Cheryl Kleeman pertaining to the moral standards which Raymond Holloway has set for himself and has endeavored to foist 6 upon his family by his previous marriage and upon Cheryl and Hannah. During his first marriage, to which, prior to his vasectomy, he was the father of three boys, he encouraged his wife to engage with him in activities of "swinging" (sexual encounters and exchanges of sexual partners with other couples). Early in his marriage to Cheryl Kleeman, as a result of his regular and sometimes protracted "visits" to computer pornographic websites and "chat rooms," he made efforts to have Cheryl become involved in such type of swinging activities with other couples, an invitation which she unhesitatingly rejected. Then, prior to the advent of Hannah, when Cheryl expressed a desire to have a child, the Plaintiff offered to Cheryl the prospect of having her seduce a mutual friend, having intercourse with that gentleman and producing a child which she and Raymond would claim as their own. In like fashion, Cheryl rejected this suggestion. This proclivity of Raymond directed toward two wives stands entirely uncontradicted by Raymond and portrays an individual who lacks sound moral standards. Certainly, it cannot be questioned that he lacks the moral standards necessary to raise a female child who presently just recently passed her fourth birthday. Also uncontradicted was the testimony of Cheryl that while they were residing together after reconciliation, and in the presence of Hannah (the date was not clear, but it was obvious she was, at that time, age two or three) he presented himself, on more than one occasion, nude in the presence of Hannah. Additionally, and also uncontradicted, was the testimony of Cheryl, confirmed by Joanne Berkheimer, that Raymond, rather than exercising a disciplinary and nurturing influence over his 14 year old son Anthony, instead, permitted that son to go and live 7 for a period of time with his 16 year old girlfriend at the home of the girlfriend's mother. So much for "family values"! So much for any semblance of basic morality! Put aside for a moment the fact that Raymond has this proclivity to visit and chat in matters of pornography upon the computer. Forget for a moment that he has a desire to engage in "swinging." Forget for a moment that he can make such a crude suggestion to his own wife that she seduce another individual in order to have a child. Consider only the nude parade of Raymond in the presence of a two to three year old female child (to whom he wants to be "daddy"), and consider only the "fatherly" leadership (?) which Raymond certainly sanctioned, and perhaps encouraged as to his 14 year old natural-born son. Consider also the matter of the "physical" well-being of Hannah when her mother is not present to protest Raymond demonstrating to her how a BB gun or other weapon at his disposal might function. Consider the absence of Cheryl's protests when Raymond can get Hannah to laugh by placing her in the front seat of a car as he drives that car in a reckless fashion---with no Cheryl present to protest that such is a threat to the safety and well-being of Hannah. In point of fact, right now is undoubtedly the most opportune time for Your Honorable Court to face the decision that Cheryl is asking the Court to make, to wit: deny to Raymond Holloway any right to maintain a pazental/in loco parental relationship with Hannah. She has just two months ago turned aged four. She has had very limited exposure to Raymond as a "father figure" (and in view of the comments above, that portrait is certainly tarnished). As a matter of fact, Hannah, during her short lifetime, has spent less than 12 months in a household in which Raymond was the "father figure." For most of the remainder of her young life, she has, under 8 day care supervision, spent significant time in a household (that of Paul and Karol Deimler where she has come to term her uncle by the name of "daddy." Then, since Thanksgiving 2005, (actually November 23) Cheryl has resided in the household of her sister, Bonnie and her husband Brian Deimler, also an intact family unit, where Hannah has also come to term her uncle Brian as "daddy." At this stage in the life of Hannah, a lot of male figures are likely to be called "daddy" by her, not the least of which is Cheryl's father (Hannah's grandfather). Now, right now, is the time when, if Hannah's future best interests and well-being aze to be addressed and put upon a solid path toward productive adulthood, Your Honorable Court should act. Your Honorable Court has also heard uncontradicted testimony from Cheryl and from members of her family as to the recurring efforts of Raymond to undermine any efforts by Cheryl to instill discipline in Hannah. At the very least, Raymond's admonitions to Hannah when disciplined by her mother that "you do not have to pay attention to her" are, at the least, most inconsistent and send mixed signals to that impressionable young child, and, at the worst, serve to promote defiance to discipline efforts by her mother, a condition which can only grow worse if Hannah is exposed to any continued, unimpeded opportunities by Raymond to drive that wedge between mother and daughter ever more deeply. Finally, Cheryl has registered her opinion with Your Honorable Court that her belief is that Raymond is not pursuing what is in the best interests of Hannah, rather he is, in fact, pursuing what is in his best interests, specifically; to try to do something which will force Cheryl into a position where she will reconcile with him in order to be sure that she is there and available to try to protect the best interests in Hannah. 9 CONCLUSION For all of the foregoing reasons, and, even though Raymond satisfies that threshold criteria of standing so as to be able to present his argument that he should have partial custody of or visitation with Hannah, every ounce of testimony, and most of it being entirely uncontradicted, cries out that he is not a proper father figure. For these reasons, it is respectfully requested that Your Honorable Court reject the Complaint/Amended Complaint and restore sole legal and physical custody of Hannah Rose Kleeman to her natural mother, Cheryl Kleeman. Date June 1, 2006 Respectfully submitted, e+--~-si Carl G. Wass, Esquire Caldwell & Kearns, P.C. 10 CERTIFICATE OF SERVICE And now the undersigned certifies that on this 151 day of June 2006, two copies of the attached Memorandum of Law have been delivered, by hand delivery, to the Chambers of the Honorable M.L. Ebert, Jr., Judge, Cumberland County Courthouse, Carlisle, Pennsylvania, and that on the same date, a copy thereof has been placed in the U.S. Mail at Harrisburg Pennsylvania, postage pre-paid and directed to Kara Haggerty, Esquire, Abom and Kutulakis, 36 South Hanover Street, Carlisle, Pennsylvania, 17013. DATE: June 1, 2006 Carl G. Wass, Esl~rire Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 -Phone (717) 232-2766 --Fax Court ID No. 07268 CGW/dmg 102401 11 CERTIFICATE OF SERVICE AND NOW, this 7a' day of July 2006, I, Kaza W. Haggerty, of ABOM & KUTULAK/S, L.L.P., hereby certify that I did serve a true and correct copy of the foregoing Petition for En Banc Reconsideration of Order Denying Plaintiff Partial Custody the manner indicated below and addressed as follows: By U.S. Mail: Mr. Carl Wass, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, Pennsylvania 17110 Attorney for the Defendant By Hand-Delivery: The Honorable Judge Edgar B. Bayley, President Judge Cumberland County Courthouse One Courthouse Squaze Cazlisle, Pennsylvania 17013 The Honorable Judge M.L. Ebert, Jr. Cumberland County Courthouse One Courthouse Squaze Carlisle, Pennsylvania 17013 The Honorable Judge Edward E. Guido Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 The Honorable Judge Kevin A. Hess Cumberland County Courthouse One Courthouse Squaze Cazlisle, Pennsylvania 17013 Date V ! ~7 ~lL The Honorable Judge J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Squaze Cazlisle, Pennsylvania 17013 Respectfully submitted, ABOM & KUTULAKIS, L.L.P. G' / lJ~ v Kaza W. Haggerty, E u 36 South Hanover Street Carlisle, Pennsylvania 17013 (717)249-0900 Supreme Court ID# 86914 Attorney for Plaintiff . n._~ ~ , ' -~ 1 ~ Y __ !,_ _ -~ t ~"1 1 :. L_. ~.:.: l.~ ~-I RAYMOND HOLLOWAY, Plaintiff v. . CHERYL KLEEMAN, . Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 06-668 CIVIL TERM CIVIL ACTION-LAW IN CUSTODY MOTION TO DENY "PETITION FOR EN BANC RECONSIDERATION OF ORDER DENYING PLAINTIFF PARTIAL PHYSICAL CUSTODY" AND NOW, this 14th day of July, 2006, comes the Defendant, Cheryl Kleeman, by and through her attorney, Carl G. Wass, Esquire, of Caldwell & Kearns, P.C., and moves Your Honorable Court to deny the "Petition for en banc Reconsideration" filed by the Plaintiff for the following reasons: 1. Though denominated a "Petition", Plaintiff s request for consideration is, as stated in Paragraph 8 thereof, filed pursuant to Pennsylvania RCP 227.2 and is, in reality, a "Motion for Post-Trial Relief," the filing of which is governed by Pennsylvania RCP 227.1. 2. Pennsylvania RCP 227.1.(c) provides: "Post-Trial Motions shall be filed within ten days after...(2)...the filing of the decision in the case of a trial without jury." 3. The Decision of the Court was dated June 21, 2006; was filed with the Prothonotary of Cumberland County on June 22, 2006; and, the instant Petition/Motion of Plaintiff was not filed until July 11, 2006, 20 days following the Decision of the Court. 4. Pennsylvania RCP 1915.10(b) states: "No Motion for Post-Trial Relief may be filed to an order of custody, partial custody, or visitation." 5. The within Action of Plaintiff is in fact founded upon a Complaint for Partial Custody of a minor child; the Order of Court dated June 21, 2006, constitutes an Order which renders a final decision upon the said Complaint for Partial Custody; and, the filing of a Post- Trial Motion to such Order is prohibited. WHEREFORE, Defendant, through her attorney, prays Your Honorable Court deny the Petition/Motion for en banc Reconsideration filed by the Plaintiff for the reasons that said Motion was untimely filed and the filing thereof is prohibited by the Pennsylvania Rules of Court specifically applicable to Orders of Custody. Respectfully submitted, By: Carl G. Wass, Esq e Attorney for Defendant Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 -Phone Supreme Court. ID# 07268 OS-790/104081/ CERTIFICATE OF SERVICE AND NOW, this 1'~t" day of July, 2006, the undersigned, Carl G. Wass, hereby certifies that copies of the within Motion to Deny "Petition for en Banc Reconsideration of Order Denying Plaintiff Partial Physical Custody" were served upon the following in the manner set forth, to wit: By U.S. Mail, First Class: Kara W. Haggerty, Esquire Abom & Kutulakis, L.L. P. 36 South Hanover Street Carlisle, Pennsylvania 17013 Attorney for Plaintiff By Hand-Delivery: The Honorable Judge Edgar B. Bayley, President Judge Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 The Honorable Judge M.L. Ebert, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 The Honorable Judge Edward E. Guido Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 The Honorable Judge Kevin A. Hess Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 Date The Honorable Judge J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 Carl G. Wass, Es ' e Attorney for Defendant Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 -Phone Supreme Court. ID # 07268 05-790/104086 ~ 't :.~ ~ i ...a ' _ ~_ --~ ~1~:_ __.. - ;] ~r :, ~ ~:. .~ RAYMOND HOLLOWAY, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. :DOCKET NO: 06-668 CIVIL TERM CHERYL KLEEMAN, :CIVIL ACTION-LAW Defendant IN CUSTODY NOTICE OF APPEAL[ Notice is hereby given that Raymond Holloway, petitioner above named, hereby appeals to the Superior Court of Pennsylvania from the order entered in this matter on the 215` day of June, 2006. The order appealed from was docketed in Cumberland County Court of Common Pleas on the 215` day of June, 2006. A copy of that docket entry is appended to this Notice of Appeal. Respectfully Submitted, ABO~bI & KUTULAKIS, L.L.P. Kara W. Haggerty, E Attorney I.D. No. 8 36 South Hanover Street Cazlisle, PA 17013 (717) 279-0900 Attorney for Petitioner/Appellant ' Expedited Review and Advancement is respectfully requested. A Motion for Expedited Review and Advancement is included with the Notice of Appeal. 'v RAYMOND HOLLOWAY, Plaintiff v. CHERYL KLEEMAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO: 06-668 CIVIL TERM CIVIL ACTION-LAW IN CUSTODY MOTION FOR EXPEDITED REVIEW AND ADVANCEMENT The Petitioner, Raymond Holloway, by and through his counsel, Kaza W. Haggerty of Abom & Kutulakis, LLP respectfully requests Expedited Review and Advancement of the above-captioned appeal. Respectfully Submitted, ABOM & KUTULAKIS, L.L.P. Kaza W. Haggerty, ire / ' Attorney I.D. No. V 36 South Hanover Street Cazlisle, PA 17013 (717)279-0900 Attorney for Petitioner/Appellant RAYMOND HOLLOWAY, IN THE COURT OF COMMON P Plaintiff CUMBERLAND COUNTY, PENN v. 06-0668 CIVIL CHERYL KLEEMAN CIVIL ACTION -LAW Defendant IN CUSTODY IN RE: PETITION FOR PARTIAL CUSTODY BEFORE EBERT. J. ORDER OF COURT rr, .IUN 2 ~ ?o ~ ~6 V~ AND NOW, this 215 day of June, 2006, following a hearing, and after consideration of the legal memorandums filed by the parties, IT IS HEREBY ORDERED AND DIRECTED that Plaintiff Raymond Holloway's request for partial physical custody is DENIED. BY THE COURT, Kara W. Haggerty, Esquire 36 South Hanover Street Carlisle, PA 17013 For the Plaintiff Carl Wass, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 For the Defendant M.L. Ebert, Jr., J. 15551607202006 Cumberland County Prothonotary 's Office Page 1 PYS510 Civil Case Print 2006-00668 HOLLOWAY RAYMOND (vs) KLEEMAN CHERY Reference No..: Filed........: 2/01/2006 Case Type.....: COMPLAINT - CUSTODY Time.........: 4:13 Judgment...... .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: ------------ C C t - Disposed Date. i 0/00/0000 ase ommen s ------------ H gher Crt 1.: Higher Crt 2.: **,t**********,r,r******~**:r**************:r:r********** ********~******************** General Index Attorney Info HOLLOWAY RAYMOND PLAINTIFF HAGGERTY KARA W 4005 RIDER LANE MECHANICSBURG PA 17055 KLEEMAN CHERYL DEFENDANT 319 TURNPIKE ROAD NEWBURG PA 17240 * Date Entries ********************~*,r***+***************************************:r*:r*********** - - - FIRST ENTRY - - - - - - - - - - - - - - 2/O1/2006 COMPLAINT - CUSTODY -------------------------//------------------------------------------ 2/08/2006 STATE STREETRCAMPDHILD Pk7ON63/17/06IAT 1T30DPM~NFORETHEICOURT MELISSA P GREEVY ESQ CUSTODY CUUSTODY CONCILIATOR COPIES MAILED ------------------------/--/----------------------------------------- 2/08/2006 OMANLOVEFSCO1901 STATEESTREETOCAMPIHILL PAS3/D17406HATR1N30APMMDJFOR THE COURT MELISSA P GREEVY ESQ CUSOTDY CONCILIATOR COPIES MAILED ------------------------------------------------------------------- 4/13/2006 INTERIM ORDER OF COURT - DATED 04-13-06 - IN RE: HEARING SCHEDULED ON 05-03-06 AT 9:30 AM IN CR 5 CUMB CO COUTHOUSE - BY M L EBERT JR J - COPIED AND MAILED 04-13-06 ------------------------------------------------------------------- 4/18/2006 PRELIMINARY OBJECTIONS TO COMPLAINT FOR CUSTODY - BY CARL G WASS ATTY ------------------------------------------------------------------- 4/26/2006 AMENDED COMPLAINT FOR CUSTODY - BY SHANA M PUGH ATTY ------------------------------------------------------------------- 5/08/2006 ORDER OF COURT - DATED OS-O5-06 - IN RE: CUSTODY OF CHILD-HANNAH ROSE KLEEMAN-WILL REST EXCLUSIVELY WITH THE NATURAL MOTHER - BY M L EBERT JR J - COPIED AND MAILED 05-09-06 ------------------------------------------------------------------- 5/22/2006 MOTION FOR EXTENSION OF TIME BY KARA W HAGGERTY ESQ FOR PLFF ------------------------------------------------------------------- 5/22/2006 PRAECIPE FOR WITHDRAWAL OF APPEARANCE - BY SHANA M PUGH ATTY-PLFF ------------------------------------------------------------------- 5/22/2006 PRAECIPE TO ENTER APPEARANCE - BY KARA W HAGGERTY ATTY-PLFF 5/23/2006 ORDER - DATED 05-23-06 - IN RE: ORDERED THAT MOTION IS GRANTED - PARTIES SHALL HAVE UNTIL CLOSE OF BUSINESS 06-01-06 IN WHICH TO FILE THEIR FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH LEGAL BRIEFS IN SUPPORT THEROF - M L EBERT JR J - COPIED AND MAILED 05-23-06 ------------------------------------------------------------------- 5/31/2006 MOTION FOR EXTENSION OF TIME BY KARA W HAGGERTY ESQ FOR PLFF ------------------------------------------------------------------- 5/31/2006 ORDER - DATED OS-31-06 - IN RE: CUSTODY-MOTION IS GRANTED-PARTIES HAVE UNTIL 06-14-06 TO FILE FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH LEGAL BRIEFS - BY M L EBERT JR J - COPIES MAILED OS-31-06 ------------------------------------------------------------------- 6/21/2006 ORDER OF COURT - 06-21-06 - IN RE: PETITION FOR PARTIAL CUSTODY - DENIED - BY M L EBERT JR J - COPIES MAILED 06-21-06 ------------------------------------------------------------------- 7/11/2006 PETITION FOR EN BANG RECONSIDERATION OF ORDER DENYING PLAINTIFF PARTIAL PHYSICAL CUSTODY ------------------------------------------------------------------- 7/17/2006 MOTION TO DENY "PETITION FOR EN BANG RECONSIDERATION OF ORDER DENYING PLFF PARTIAL PHYSICAL CUSTODY" - BY CARL G WASS ATTY FAOR 15551607202006 Cumberland County Prothonotary 's Office Page 2 PYS510 Civil Case Print t 2006-00668 HOLLOWAY RAYMOND (vs) KLEEMAN CHERY Reference No..: Filed........: 2/01/2006 Case Type.....: COMPLAINT - CUSTODY Time.........: 4:13 Judgment...... .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ----------- -- Higher Crt 1.: Higher Crt 2.: DEFT - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - *************************************** ***************************************** * Escrow Information * Fees & Debits Be Bal Py[nts/Ad~ End Bal ~ ******************************** ****** ** ****** *** **************************** CUSTODY AGMT 85.00 85.00 .00 TAX ON AGMT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 CUSTODY FEE 5.20 5.20 .00 CUSTODY FEE-CO 1.30 1.30 .00 JCP FEE 10.00 --------- 10.00 .00 ----- 112.00 ---------- -- 112.00 ---------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** i FiUE CUNY FNOtu~ F,~t:Ai~C} m Testimony i~nereat, 1 here unto set +mi t~arW ,~nQ t»e seal of sa-A Cw CarMS1s•,P!•, -J~~/ PrTfh~,ttt?Hry CERTIFICATE OF SERVICE AND NOW, this 20'x' day of July 2006, I, Kara W. Haggerty, Esquire, of Abom & Kutulakis, L.L.P., hereby certify that I did serve a true and correct copy of the foregoing Notice of Appeal upon the Respondent, the Honorable Judge, the District Court Administrator and the Court Reporter by first class mail to the following locations: Attorneys for Respondent Cazl G. Wass, Esquire Caldwell & Keazns, P.C. 3631 North Front 5t. Harrisburg, PA 17110 The Honorable Judge M.L. Ebert Jr., J. Court Administrator's Office 1 Courthouse Squaze Cazlisle, PA 17013 Marie Fazley Court Administrator Cumberland County Courthouse 1 Courthouse Squaze Carlisle, PA 17013 Court Reporter 1 Courthouse Square Carlisle, PA 17013 Respectfully submitted, Asomt & KUTULAKIS, LLP DATE 1 Kara W. Haggerty, E ID No. 86914 36 S. Hanover Street Cazlisle, PA 17013 (717)249-0900 Attorneyfor Petitioner/Appellant ~'.y ~=i 1 ~~ ~`` (_~ i `C~ O G ,~ ~e ~ b - ` °~ ~ r, b W r}.1: RAYMOND HOLLOWAY, IN THE COURT OF COIMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-0668 CIVIL CHERYL KLEEMAN, :CIVIL ACTION -LAW Defendant IN CUSTODY ORDER OF COURT AND NOW, this 24th day of July, 2006, the Court being', in receipt of a copy of Notice of Appeal in the above captioned matter, the Appellant i~ ordered to file with this Court a concise statement of matters complained of on appeal'no later than August 12, 2006. By the Court, ~~ `~ M. L. Ebert, Jr., ~ J. Kara W. Haggerty, Esquire Attorney for Plaintiff/Appellant Carl Wass, Esquire -~~^ ""`'"'~'"t ~~ Z~P,c4 Attorney for DefendanUAppellee bas ,~ r ~^~ t~~ ,~ Es~~ ~7 i1(' ~iiJ~ t .-. 3:33 P.M. Appeal Docket Sheet Docket Number: Page 1 of 2 July 25, 2006 OG -GL8 Superior Court of Pennsylvania 1238 MDA 2006 Raymond Holloway, Appellant v. Cheryl Kleeman Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: July 25, 2006 Journal Number: Case Category: Domestic Relations Awaiting Original Record CaseType: CustodyNisitation Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received Next Event Due Date: August 8, 2006 Next Event Due Date: September 5, 2006 COUNSEL INFORMATION Appellant Pro Se: IFP Status: Holloway, Raymond Appoint Counsel Status: No Appellant Attorney Information: Attorney: Haggerty, Kara W. Bar No.: 86914 Address: 36 South Hanover St. Carlisle, PA 17013 Phone No.: (717)249-0900 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Law Firm: Abom & Kutulakis, LLP Fax No.: (717)249-3344 Appellee Kleeman, Cheryl Pro Se: Appoint Counsel Status: IFP Status: Appellee Attomey Information: Attorney: Wass, Carl G. Address: 3631 N Front Street Harrisburg, PA 17110-1533 Phone No.: (717)232-7661 Fax No.: (717)232-2766 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Bar No.: 7268 Law Firm: Caldwell & Kearns, P.C. 7/25/2006 3023 c ,.. 3:33 P.M. Appeal Docket Sheet Docket Number: Page 2 of 2 July 25, 2006 1238 MDA 2006 FEE INFORMATION Pald Fee Date Fee Name Fee Amt Amount Receipt Number 7/24/06 Notice of Appeal 60.00 60.00 2006SPRMD000657 TRIAL COURTIAGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: June 21, 2006 Judicial District: 9 Date Documents Received: July 24, 2006 Date Notice of Appeal Filed: July 20, 2006 Order Type:Order Entered OTN: Judge: Ebert, Jr., Merle L. Judge Original Record Item Date of Remand of Record: Lower Court Docket No. ORIGINAL RECORD CONTENTS Filed Date 06-668 ContenUDescription BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By July 25, 2006 Notice of Appeal Filed Appellant Holloway, Raymond July 25, 2006 Docketing Statement Exited (Domestic Relations) Middle District Filing Office Superior Court of Pennsylvania 7/25/2006 3023 RAYMOND HOLLOWAY, Plaintiff v CHERYL KLEEMAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO: 06-668 CIVIL TERM CIVIL ACTION-LAW IN CUSTODY CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL TO THE HONORABLE JUDGES OF SAID COURT: And now comes the Plaintiff, Raymond Holloway, by and through his attorney, Kara W. haggerty, Esquire of Abom & Kutulakis, LLP, and represents the following as a Concise Statement of the Matters Complained of on Appeal: 1. The Plaintiff alleges that since Raymond Holloway has acted in loco parentis to Hannah Rose Kleeman since her birth, this Honorable Court erred in denying Raymond Holloway partial physical custody. 2. The Plaintiff alleges that this Honorable Court erred in its assessment of the best interests of Hannah. While Hannah is 4 years of age, the Defendant, Cheryl Kleeman, has never identified or notified Hannah's biological father of this fact. As a result, Hannah's biological father has neither had any role, nor served any function in Hannah's life. 3. The Plaintiff alleges that this Honorable Court failed to consider that Hannah has received no emotional, supervisory, or financial support from her biological father. However, Raymond Holloway has provided considerable emotional, supervisory, and fmancial support for Hannah, which serves as the basis for his in loco parentis status. 4. The Plaintiff alleges that this Honorable Court failed to consider that denying Raymond Holloway the chance to continue to act in loco parentis works an injustice on Hannah as it deprives her of the chance to have a willing, loving individual contribute to her care, protection, hygiene, nutrition, and general physical, emotional, and financial well-being. 5. The Plaintiff alleges that this Honorable Court erred in denying Raymond Holloway that chance to continue to act in loco parentis, since in doing so the Court deprives Hannah of any potential rights of survivorship or future claims to the inheritance of Raymond Holloway's estate. 6. The Plaintiff alleges that this Honorable Court failed to consider that in allowing Cheryl Kleeman to not identify the biological father while alienating Raymond Holloway as a father figure, cazetaker, and financial contributor, Cheryl Kleeman deprives her daughter Hannah of the chance to have any father participate in her growth and development. 7. The Plaintiff alleges that this Honorable Court abused its discretuon and erred in its conclusion that Hannah's best interests are served by being raised with no father at all, rather than with Raymond Holloway acting in loco parentis. Respectfully submitted, Date: ~~ ( ( Abom & %utulakis, L.L.P. (~LJ• ~ ~ L Kara W. Haggerty, q 're Attorney for Plainti 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 I.D. # 86914 r RAYMOND HOLLOWAY, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNT, PENNSYLVANIA v. DOCKET NO: 06-668 CIVIL TERM CHERYL KLEEMAN, :CIVIL ACTION-LAW Defendant : IN CUSTODY CERTIFICATE OF SERVICE AND NOW, this l ~ th day of~Z~( 2p06, I, Kaza W. Hagg rty, Esquire, of Abom & Kutulakis, L.L.P., hereby certify that d serve a true and corn ct copy of the foregoing CONCISE STATEMENT OF MATTERS COMPL D OF ON APPEAL upon Cazl G. Wass, Esquire at the following: j Caldwell & Kearns, P.C. 3631 North Front St. Harrisburg, PA 17110 (~~ Kara W. Haggei ' O ~. ~ 9 ~i~5 ~ ~~: ,~' '.i q'~ ./' '% f... r' j) ~: ~t r'~; 'd 0~ ~~ N RAYMOND HOLLOWAY, Plaintiff V CHERYL KLEEMAN, Defendant IN RE: CUSTODY IN THE COURT OF COMPpON PLEAS OF CUMBERLAND COUNTY, 9ENNSYLVANIA 06-668 CIVIL TERM IN CUSTODY Proceedings held before the HONORABLE M. L. EBERT, JR., J., Cumberland County Courthouse, Carlisle, Pennsylvania, on May 3 and May 5, 2006, in Courtroom Number 5. APPEARANCES: SHANA PUGH, Esquire For the Plaintiff CARL G. WASS, Esquire For the Defendant • INDEX TO WITNESSES WITNESS PAGE (May 3, 2006) Raymond Holloway Direct examination by Ms. Pugh 5 Cross-examination by Mr. Wass 19 Redirect examination by Ms. Pugh 32 Recross-examination by Mr. Wass 37 Dixie Irene Holloway Direct examination by Ms. Pugh 93 Cross-examination by Mr. Wass 45 Joanne Berkheimer Direct examination by Ms. Pugh 47 Cross-examination by Mr. Wass 51 Redirect examination by Ms. Pugh 60 Recross-examination by Mr. Wass 62 Cheryl Lee Kleeman Direct examination by Mr. Wass 66 Cross-examination by Ms. Pugh 129 Redirect examination by Mr. Wass 142 Recross-examination by Ms. Pugh 143 Bryan Kleeman Direct examination by Mr. Wass 194 Cross-examination by Ms. Pugh 150 Bonnie Deimler Direct examination by Mr. Wass 153 Cross-examination by Ms. Pugh 160 Redirect examination by Mr. Wass 166 Paul Stanley Deimler Direct examination by Mr. Wass 166 Cross-examination by Ms. Pugh 171 INDEX TO EXHIBITS (No exhibits presented during t~stimony.) 2 • 1 Wednesday, ~Iay 3, 2006 2 9:30 a.m. 3 THE COURT: Please be seated. This is the 4 time and place set for a custody hearing regarding Raymond 5 Holloway vs Cheryl Kleeman docketed to 06-668 of the civil 6 docket. Counsel ready to proceed? 7 MS. PUGH: Yes, Your Honor. 8 MR. WASS: Yes. 9 THE COURT: It's my understanding that Mr. 10 Holloway is the moving party in this case and will proceed 11 first. I have reviewed all of the pretrial memorandums set 12 forth in this case, along with the preliminary objections of 13 the defendant in this matter. 19 I kind of agree with Mr. Wass that I am going 15 to proceed with the custody hearing. I expect both parties 16 to address the issue of this case has kind of gone from the 17 normal presumption that a child conceived during a marriage, 18 both parties are the natural parents, to one in where even 19 with your ame nded complaint, Ms. Pugh, your client appears 20 to be saying, I am really not the natural father, and that 21 the case should then proceed on a determination of has he 22 sufficiently acted in loco parentis to grant him custody 23 rights in this case. 24 I want both issues address d. We are going 25 to brief that afterward. But I think I h ve succinctly 3 • • 1 stated where I am going today. 2 Is everybody in agreement with that? 3 MR. WASS: I think that is an accurate 4 presentation. 5 THE COURT: Given that, Ms. Pugh, if you 6 would like to begin. 7 MS. PUGH: Your Honor, I would ask that the 8 witnesses be sequestered while Mr. Holloway is testifying. 9 I know there are lots of family members on both sides. 10 THE COURT: Sir. 11 MR. WASS: I don't have any problem with 12 that. 13 THE COURT: Okay. I am going to -- counsel 14 has asked that the witnesses in the case be sequestered, 15 that simply means you have to wait outside while Mr. 16 Holloway is testifying. So I am going to ask everyone who 17 is going to testify today, that you are going to have to 18 wait out in the hallway, and counsel will call you when your 19 time comes to testify. 20 If you are not scheduled to testify, and I 21 will rely on counsels' determination of who goes and who 22 stays, I am going to ask those people to just step outside 23 at this time. I am now deprived of an audience. 29 MS. PUGH: As are we. 25 MR. WASS: We have got th~ sheriff here, 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Your Honor. Your Honor, before we begin {o take testimony, I should advise the Court that, number one, because the child is only four years of age, we had determined ahead of time that we would not bring the child to court, unless the Court would wish to do so, and we could make arrangements to get the child here. However, as it turned out, overnight she became ill, she is running a temperature right now of 102 degrees so -- THE COURT: I would -- four, for my purposes, is too young, and I would not require the child to be present. And, given the facts of this particular case, I don't find its opinion at this point or testimony relevant. So I am not going to request that the child be here and I am not going to question the child. MR. WASS: Thank you. MS. PUGH: I would like to call Mr. Holloway. Whereupon, RAYMOND HOLLOWAY having been duly sworn, testified as follows: DIRECT EXAMINATION BY MS. PUGH: Q Mr. Holloway, what is your relationship to Mrs. Kleeman? A We are separated right now but we have been married for the last nine -- eight years. 5 1 Q When did she tell you that', she was pregnant? 2 What was the s tatus of your relationship at that time? 3 A We were separated at the time. Very little 4 communication going on. She told me on October 16 of 2001. 5 Q Why do you remember that date? 6 A It was my birthday when she told me. 7 Q When she told you, what did she tell you 8 exactly? 9 A She came to my house, just wanted to let me 10 know that she wanted me to find out before other people had 11 told me. She brought photos of the womb and the baby, to 12 show me photos of it at the time. 13 Q Were you having an intimate relationship with 14 Ms. Kleeman at that time as well? 15 A Not in October. We had stopped having an 16 intimate relat ionship back in July that year. 17 Q When Hannah was born on March 25, did you see 18 her that day? 19 A Yes, I did. I went to the hospital that 20 evening. I go t there late, but it was told to the hospital 21 that I was the father so they allowed me to stay after 22 visitation hou rs. 23 Q Is your name on the birth certificate? 29 A No, it is not. 25 Q After the baby was born, d'd you see the baby 6 • 1 at all within the first six months of Hanmah's life? 2 A Yes. We -- back in November of that year, we 3 started talking, hanging out while she .was pregnant. We 4 have gone -- we went to several functions together down in 5 Philly where I was represented as her husband. I received 6 congratulations as to her being pregnant. 7 Q Did she correct -- I'm sorry to interrupt 8 you -- did she correct the people who presumed that you were 9 the father of the child? 10 A No, she did not. She introduced me as her 11 husband and never corrected it. We -- while she was 12 pregnant, we started having a sexual relationship again 13 which continued through the time when Hannah was born. And 14 we just started dating again, trying to work things out for 15 Hannah until November of 2005. 16 Q Did Hannah and Cheryl stay over at your house 17 before you moved in together? 18 A Yes. When we separated, I kept the house at 19 6 Mill Road and Cheryl and Hannah stayed there a lot. We 20 set up a bed for Hannah in the bedroom. She had toys there. 21 She had -- Cheryl had several clothes there. 22 There were many incidents where she was 23 there. There was actually a vandalism of'her vehicle at my 24 property. It's on a police report. She ~as there most of 25 the time. 7 • • 1 Q Did Mrs. Kleeman have clothes there as well? 2 A Yes, she did. 3 Q Did you spend holidays together with Hannah 4 and Mrs. Kleeman? 5 A Yes. We spent almost every holiday, every 6 vacation together, since the time Hannah has been born. 7 Most of them holidays were at my parents house. My parents 8 accepted Hannah as their granddaughter. She refers to them 9 as her Nana and Pap. 10 Q And it was December of 2004 when you and Mrs. 11 Kleeman and Hannah moved in officially together, correct? 12 A Correct. 13 Q When you were together as a family, did you 14 do the normal things that families do? 15 A Yeah. I mean we, we represented ourselves as 16 a family. Everywhere we went we were husband and wife, this 17 is our daughter, except for the people that knew about me 18 not being the biological father of Hannah. You know, many 19 times people are over, her family is over to the house, you 20 know, we pretty much lived as a family. 21 Q You have children from a previous marriage, 22 correct? 23 A Yes, I do. I 29 Q What does Hannah call you three sons? 25 A She refers to my sons as k~er brothers, yeah, i 8 • 1 her brothers, except for my one son, she does tease him as 2 her sister because of his long hair. 3 Q And from speaking to you, I realize that your 4 discipline style may be different from Mrs. Kleeman's 5 discipline style. Can you describe your style of b discipline? 7 A I'm very lax. To me, you know, I don't 8 believe in a physical discipline. I believe in restriction 9 or time out, something like that. I am sure with Hannah I 10 am very relaxed. I spoil her to excess sometimes. But I do 11 teach her right from wrong, I believe, and speaking 12 correctly, when she interrupts a conversation, excuse me, 13 stuff like that. I just don't believe in a physical 19 correction of a child. 15 Q Have you ever offered financial support 16 during the time of separation to Mrs. Kleeman for Hannah's 17 care? 18 A Yes, yes, I have. 19 Q Has she taken it? 20 A No. 21 Q What happened -- there was an issue with you 22 and Hannah in your pickup truck that concerned Mrs. Kleeman. 23 Can you describe what happened in that injcident? 2q A Yeah. Where I live at 40x5 Ryder Lane right 25 now, I have a very long driveway, about ~ half mile long. 9 • • 1 Hannah would enjoy sitting in the front of the car with me 2 to ride out to the mailbox to get the mail and back. She 3 really enjoyed it. She laughed. She joked. Very safe. 4 The windows were up. Most of the time she was in a seat 5 buckle while we went in and out. Coming up to my house, there is a steep hill 7 where the driveway comes up. We would stop on the hill and 8 accelerate a little bit and squeal the tires a little bit. 9 It was very safe, but very fun for her. But there was a 10 difference of opinion between me and Cheryl because she 11 thought it was an unsafe act. 12 Q And there was also a time when Mrs. Kleeman 13 called the police on you, you had an altercation? 14 A I actually called the police. We had an 15 altercation back in the end of October 2005. I had found a 16 paper that Cheryl had contacted a lawyer about a divorce, 17 had not mentioned it to me. She returned that evening, we 18 discussed it, got into a bit of an argument. lg I had placed new tires on her vehicle. At 20 the time, I told her if that is the way she is going to be 21 about it, that I was going to remove them. I went out to 22 remove them, she grabbed me by the face, threw me to the 23 ground. I stood up, we got in a mouth argument, she kicked 24 me in the groin three times. So at that ',time I called the 25 cops. 10 • 1 Q Wasn't there a time when she called the 2 police on you, that you were -- 3 A Back in 2002 or 2003, I can't remember the 4 exact date, when I lived on Mill Road, Cheryl would go 5 bowling on Thursday evenings and Hannah would spend the 6 evening with me. When Cheryl came over that evening, she 7 would have drinks while she was bowling, and we got into a 8 confrontation about the drinking at the time. 9 So she said she was leaving and going to her 10 brother's. I told her she was not leaving with Hannah since 11 she had been drinking. She went out to her car to get 12 something. I had locked the door. She took a large milk 13 can that was outside my house and threw it against the door 14 repeatedly. 15 At that time I opened the door and let her 16 in. She tried to grab Hannah from me. I pushed her away 17 and pushed her to the ground and told her she was not 18 leaving while she was drinking. She went out and called the 19 cops. 20 The Silver Springs Township police did show 21 up. They said that since I didn't have parental -- cause I 22 wasn't the biological father and didn't have anything in 23 writing, that I could not keep Hannah at that time. They 29 did speak to her and determined that she !did have the 25 ability to drive after that time and let~Hannah go with her. 11 • 1 Q In the past few weeks, you have had the 2 opportunity to visit with Hannah again. When you pick her 3 up, what is her reaction to you? 4 A She -- when I first showed up the first time, 5 she was very -- she has been told a lot while we have been 6 apart. Not sure what to do. Warmed up very fast. Calls me 7 daddy, not all the time. It is Ray and then daddy. Refers 8 to me as daddy. Has had a great time being back over with 9 me. 10 It has been great to spend time together with 11 her after three and a half months. But it's all been good. 12 She enjoys being back at the house. She enjoys the time we 13 spend together. 14 Q And Hannah is four, right, correct? 15 A Correct. 16 Q And throughout her four years, you have taken 17 on the duties that a father would take on with respect to a 18 child, caring for a child? 19 A Correct. Like I said, Cheryl and I had 20 talked, tried to, talked about having a child. When we did 21 start dating again when she was pregnant, I thought this was 22 a great opportunity, here is a child that the father was not 23 involved in, that I just, you know, I thdught she was it. 24 It was the answer to what we had been logking for. And I 25 have treated her that way since. 12 1 Hannah suffers from asthma. When she was 2 little, she had to be on a nebulizer, treat her with that. 3 When she was very little she hated it. It was tough to just 4 hold her and hold that mask on her to make her do it. 5 Q You did that, you treated, gave her her 6 asthma treatments. 7 A Yes, I did. 8 MS. PUGH: I have no further questions, Your 9 Honor. 10 THE COURT: Sir, before cross-examination, 11 the question about the child's name, there was some 12 indication that you were asked whether or not you wanted the 13 birth certificate changed and that the name be changed, and 14 you declined that. Is that correct? 15 THE WITNESS: I was told that there would be a 16 paper sent to my house to have my name added to the birth 17 certificate at a later time. Cheryl and I discussed it. At 18 the time, I wanted the paper also, I was going to send it in 19 as the father because I did want to be Hannah's father, but 20 I never received the paper so there was never anything done. 21 Since that time, I had asked Cheryl, can we 22 put something in writing. So, unfortunately, you saw what 23 happened here, that I am -- I can be the 'father of Hannah 24 and want to raise her, and she refused tcD do that. 25 THE COURT: Cross-examine; 13 1 CROSS-EXAMINATION 2 BY MR. WASS: 3 Q On that point, Mr. Holloway, did you or did 4 you not receive correspondence from the Department of Health 5 which you never opened? 6 A I did not receive it. I was supposed to 7 receive a notice to my house, and I never received that 8 paper. 9 Q Your position is you never received it? 10 A T never received it. 11 Q Did you get a certified note or did you get a 12 notice from the post office that there was certified mail to 13 retrieve at the post office? 14 A I did receive a letter from the post office. 15 I didn't know what it was. I was never able to make it 16 there on time to pick it up so I did not know what the 17 purpose of that letter was. 18 Q So if that certified piece of mail that you 19 never retrieved was from the Department of Health, then you 20 are being totally honest when you say you never received it? 21 A Correct. 22 Q Let me deal with the past few weeks. You 23 have said that Hannah has warmed up to you since you have 24 had the opportunity to reacquaint yourself with her. 25 A Correct. 14 • 1 Q Okay. She sometimes calls you Ray, is that 2 correct? 3 A Correct. q Q And then sometimes she calls you daddy? 5 A Correct. 6 Q Right. Isn't it a fact that from the time 7 that she was old enough to speak, that you have tried 8 desperately to have her consistently c all you daddy? g A My actual statement to her was always when 10 she would speak, can I be your daddy. And that is the way 11 we refer to that, can I be your daddy. And her response 12 every time was yes. 13 Q Okay. So you wanted her to call you daddy, 14 is that correct? 15 A I did prefer that, yes, but if she called me 16 Ray, that was fine. 1~ Q And this was true even though you knew you 18 were not her natural father? lg A Correct. 20 Q You also said, I think in response to a 21 question, that since this most recent separation, which has 22 lasted since December of '05, is that correct, the date? 23 A Yes. 2q Q Since December of '05, si~hce you and Cheryl 25 have been finally separated, you say youhave offered 15 • 1 financial assistance to Cheryl? 2 A Yes. I had discussed with Cheryl that I did 3 want to support Hannah, I believed she was my daughter, and 4 I would offer the assistance to do that. 5 Q In exchange for what? 6 A In -- just being a part of Hannah's life, 7 being a father to her. I thought if I was going to be a 8 father to her, I would support her. 9 Q Didn't you couch those offers in terms of 10 I'll help you financially if you let me see her? 11 A I was not going to give Cheryl financial 12 support while she was withholding Hannah from me, no. 13 Q So what I just asked you is accurate, that 14 you conditioned your offer of financial support on the terms 15 that Cheryl fi rst agree to let Hannah come with you? 16 A When we first separated. 17 Q Is that a yes or a no? 18 A That is a yes. 19 Q Okay. That wasn't the case when you were 20 together that you provided financial support for the benefit 21 of Hannah, is that correct? 22 A I have always provided for Hannah since the 23 time she was b orn. I 24 Q Well, when, when she -- wen Hannah became 25 old enough to i go into a preschool and a daycare during the 16 • • 1 course of this past year, hasn't it been your position that 2 Cheryl, she is your daughter, that is your bill? 3 A No, it has not been that. 4 Q Have you ever paid anything toward the cost 5 of daycare? 6 A Cheryl and I had joint bills together. 7 Q That's a simple question. Have you ever paid 8 anything toward the cost of the daycare? 9 A Yes, I have. 10 Q When? 11 A The whole time Hannah was either with her 12 aunt as a daycare provider or a provider during the day or 13 while she was in daycare. 14 Q I am speaking in terms of the daycare that 15 was initiated last fall at the Department of Labor and 16 Industry. 17 A Yes. 18 Q You have contributed there? 19 A Yes. 20 Q When? 21 A As I was trying to say, Cheryl and I combined 22 our money together, the money we made as income went in and 23 paid the bill for everything that was involved in the 24 household. Hannah was -- Hannah's dayca~e was part of that 25 bill. 17 • • 1 Q I see. 2 A Cheryl actually wrote the check out, but it 3 was all combined with the rent of our house. The electric 4 and everything was combined as part of that. 5 Q So you are saying the funds came out of a 6 joint account? 7 A They -- no, Cheryl had her own separate 8 account. I con tributed to that account and she wrote the 9 checks out.. 10 Q Didn't you have your own account? 11 A No, I did not. 12 Q I see. So Cheryl managed all the funds? 13 A Cheryl managed most of the bills, yes. 14 Q In terms of your style of discipline, I think 15 you said that I am very lax. Were those your words? 16 A Yes. 17 Q And that you do spoil her? 18 A Yes. 19 Q Isn't it a fact that from time to time, when 20 Cheryl tries to instill discipline in Hannah, that you react 21 negatively and countermand Cheryl's instructions? 22 A I don't countermand. I don't always agree 23 with it, but I was quiet about it. I digln't -- I can't say 24 I supported it. I just was quiet about ;it. I just remained 25 quiet. 18 1 Q You have never countermanded things that 2 Cheryl was trying to do in terms of discipline? 3 A Not in front of Hannah. We would always 4 discuss it later if I didn't agree. Cause she would get 5 upset because I would not back her on something. 6 Q Well, let me give you a for instance. For 7 instance, if Cheryl would have a standing rule with Hannah 8 that she was not to hop up on furniture and jump on 9 furniture, did you abide by that standing rule? 10 A No, I can't say I did all the time because I 11 didn't think -- I didn't see a problem personally with a 12 child bouncing on the bed, jumping up and down on a bed. I 13 think all children do that. And to counteract that point, 14 for Hannah's birthday last year I bought her a trampoline. 15 Q Okay. How about when she jumps up on chairs, 16 jumps up and down, do you stop her? Do you abide by your 17 wife's wishes? 18 A Again, if I feel it is not unsafe for Hannah 19 to bounce on the couch in my house, no, I don't, I don't 20 have a problem with that. 21 Q Since the last few weeks when Hannah has been 22 with you on occasion, has she bounced around on your couch 23 or chairs in your home? 24 A No, she has not. 25 Q This matter of, oh, doing'',. squealing the tires 19 1 with Hannah in the vehicle, that wasn't really a pickup 2 truck, was it? 3 A No, it was n ot. It was in a car. 4 Q And that is a car that is unlicensed, is it 5 not? 6 A No, it is no t. This is licensed and 7 registered. 8 Q It is now? 9 A Yes. 10 Q At the time that you were using it as a 11 vehicle to bur n rubber, was it licensed? 12 A No, it was n ot. 13 Q So you kept it on your own property? 19 A Correct. 15 Q And did not take it on the road, is that 16 correct? 17 A Correct. 18 Q And when you would take the trash out on a 19 regular basis, you would ty pically put the trash in that car 20 and drive out to the end of the roadway? 21 A No, I would not. I would put it in the truck 22 and take it ou t. I did not put the trash in the car. 23 Q You do it in the truck, not the car? 24 A Correct. 25 Q Did you ever have Hannah''in that car with you 20 • 1 and burn rubber? 2 A As I explained earlier, yes, on a small hill 3 going up to our house, we did squeal the tires a little bit. 4 Q And did you do the same in the truck from 5 time to time? 6 A No, I did not. 7 Q So it was just the car that you burned rubber 8 in? 9 A Correct. 10 Q And did Cheryl object to that? 11 A Cheryl did not agree with it, no, she did 12 not. 13 Q She objected to it? 14 A Correct. 15 Q And what did she ask you to do? 16 A She asked me not to do it anymore. And it 17 had stopped. I t was one time or two times. And when she 18 objected to it, it stopped happening. 19 Q But it was fun for you and it was fun for 20 Hannah, is that right? 21 A It was fun for me because Hannah would laugh. 22 She has a real cute laugh, giggle, and she would just laugh 23 her little butt off about it. 24 Q But it was something her $nother did not want 25 you to do? 21 i • 1 A Correct. 2 Q And the first time Cheryl asked you not to do 3 it or told you not to do it, did she indicate why? 4 A No, she did not. Excuse me, I do not 5 remember what she said. 6 Q Is there a seat belt in that car? 7 A Yes, there is. 8 Q Is there a car seat in that car? 9 A Yes, there was. 10 Q In the car that you burned rubber in? 11 A Yes, there was. I placed Hannah in the front 12 of the car for her to ride out with me and back. 13 Q And that was out to the end of the driveway 14 and back? 15 A Correct. 16 Q That is about, what, a third of a mile? 17 A Correct. 18 THE COURT: Looking back on it, do you think 19 that was a good example to set for the child? 20 THE WITNESS: No, I do not. And that is why, 21 with Ms. Kleeman's objections and what I thought, I did not. 22 But I mean a lot of kids ride on lawn tractors, ride in cars 23 out to get mail. They even stand up and, drive when they are 24 up front. It is a very safe car. The doors were locked, 25 the windows were up. She could not reach outside the 22 1 vehicle. It was a very safe environment because it was on 2 our property and I was in control of the vehicle. 3 BY MR. WASS: 4 Q Let me direct your attention now to that 5 event that you said occurred in October of 2005 when you 6 found out that Cheryl had contacted a lawyer and you had an 7 altercation. Is that correct? 8 A We had a disagreement, yes. 9 THE COURT: Again, the date of this -- not 10 the exact date, but the month again? 11 MR. WASS: October of 'O5. 12 THE COURT: Thank you. 13 BY MR. WASS: 14 Q Do you know who it was she contacted? 15 A I do not remember, no. 16 Q Was it me? 17 A It could be possible. I don't know. All I 18 had was a phone number. 19 Q But you confronted Cheryl with that? 20 A I asked her why she was speaking to an 21 attorney, yes. 22 Q And what was her response? 23 A You know why. 29 Q Did you know why? 25 A No, I did not know why. 23 • 1 Q Were you having a happy marriage at that 2 point? 3 A We had had some disagreements, but we -- I 4 thought w e w ere working things out. We disagreed about 5 finances a l ot so I had taken over all the finances for the 6 house at tha t time and started paying them. 7 Q Oh, you took over the finances? 8 A I took over the finances as far as paying 9 them, yes . 10 Q Is that when you opened a checking account? 11 A No, I did not open a checking account. I 12 would go to the bank and get certified checks from the bank. 13 Q You paid the bills by certified checks? 14 A Yes. Or I would -- or I would give the money 15 to Cheryl to pay it through her account. 16 Q When did you begin that? 17 A September, I believe it was, of 2005. 18 Q September 2005. That is the point in time 19 when you sto pped contributing your paycheck to this account 20 of Cheryl 's. 21 A No. 22 Q No? 23 A I never stopped contributing, paying to the 24 account. Ch eryl had a checking account,',I did not, I have a 25 savings a cco unt. So I would deposit my 'pheck into Cheryl's 24 1 account. She would write the checks out. 2 Q If you were now going to the bank and getting 3 certified checks to pay bills, how did you get the money 4 into that account to pay those bills? 5 A Cause I belonged to Members 1st. We had 6 taken a loan out at Members 1st as well as -- excuse me -- 7 as well as that is where I would get the checks made to pay 8 the rent. I would deposit -- I would cash my check, I would 9 get a check for the rent, and I would deposit money into the 10 account we had jointly at Members 1st to pay the loan 11 payment. 12 Q Then you did not deposit your paycheck into 13 Cheryl's account anymore? 19 A I cashed my check and deposited the cash. 15 Q You cashed your check and deposited cash to 16 what account? 17 A To the joint account we had at Members 1st 18 for a loan, and would give her additional money to pay the 19 utilities. 20 Q Would that be in the form of cash? 21 A Yes. 22 Q Or -- it was in the form of cash? 23 A Yes, 24 Q So you would get your pay~Check, you would get 25 to Members 1st, you would deposit the ch~ck, hold out some 25 • 1 cash, and give that cash to Cheryl? 2 A Toward the utilities, yes. 3 Q Toward the utilities. Well -- 4 A Well, the monthly bills. 5 Q Well, the money bills? 6 A Including Hannah's daycare, the electric, 7 auto insurance, stuff like that. 8 Q How much did you give her on a weekly basis? 9 A I don't remember on a weekly amount. 10 Q Did you get paid weekly? 11 A I got paid biweekly. 12 Q How much did you give her on a biweekly 13 basis? 19 A I know our rent was 1125. The loan was 240. 15 Our electric bi ll was around a hundred dollars. Hannah's 16 daycare was 900 . So I mean monthly, you are looking at 17 about $2000.00. 18 Q So it is your position that on the average 19 you gave 2000 a month in cash to Cheryl to be deposited in 20 her checking ac count so she could pay this variety of bills? 21 A No, I didn't give her the full 2000. I got a 22 check to pay th e rent, which was 1125, and I made the loan 23 payment at the bank, which was 290. The', rest of the money 24 toward the rest of the bills was given tp her. The exact i 25 dollar amount I don't remember. 26 1 Q How much was the rent? 2 A 1125. 3 Q And the loan? 4 A 240. 5 Q 240. That is about $1365.00. 6 A Correct. 7 Q So you on a monthly basis would give Cheryl 8 something in th e range of 650 bucks? 9 A Correct. 10 Q Well, let me get back to this confrontation 11 in October 2005 . You found out Cheryl had contacted a 12 lawyer, but you really didn't know why so you asked her? 13 A Correct. 14 Q Did she tell you? 15 A She said -- she finally came around because 16 she kept saying you know why, you know why. And I said 17 what, divorce. And she said yes. I said, well, can we talk 18 about this. Sh e was at her sister's at the time. She said 19 no, I will talk to you when I get home. 20 Q Oh, this was by telephone? 21 A Correct. 22 Q I see. So it wasn't a face-to-face 23 confrontation? 29 A At that point, no. 25 Q Cheryl then came home that same day, after i 27 • 1 the phone conversation? 2 A That evening, correct. 3 Q That evening. And what was it you did at 4 that point? 5 A We had got into a discussion. I had just two 6 months -- two weeks earlier replaced the tires on Cheryl's 7 vehicle. Contributed $500.00 toward new tires for her 8 vehicle. I said that if, you know, if this is the way you 9 are going to be, that you can't even confront me and talk to 10 me about the problems we are having, why should I continue 11 to do stuff for you, that I was going to remove the tires 12 from the vehicle. 13 Q Let me stop you right there a second. When 14 you confronted Cheryl you said, we are having problems, is 15 that what you said? 16 A At that -- after she told me what was going 17 on, yeah, we were having problems. I am sure it wasn't a 18 perfect relationship, but I thought we were moving forward 19 with it. So it was a big surprise to me when I did find out 20 about this. 21 Q What kind of problems were you having? What 22 kind of problems would you agree you were having? 23 A Just regular marital prob ems. We were 24 disagreeing about things in the house. ~ had been off work 25 from July, beginning of July to August, dad just started a i I 28 1 new job. There was some disagreements about the time I was 2 off. We had just come back from a vacation, a week at the 3 beach. There was some issues about the finances down there, 4 who was paying for the vacation and stuff like that. Just 5 normal problems a husband and wife have. 6 Q Were there problems with regard to 7 disciplining of Hannah? 8 A There were still the same questions, but I 9 don't think there was a problem with it, no. 10 Q Were you unemployed because you lost your 11 previous job? 12 A I was unemployed because I quit my previous 13 job, yes. 14 Q Which job was that? 15 A As a car salesman at Brenner Nissan. 16 Q So you voluntarily quit? 17 A Yes. 18 Q How long were you unemployed at that 19 particular point in time? 20 A Six weeks. 21 Q All right. So because Cheryl had contacted a 22 lawyer and because you were having problems and because you 23 had invested money into new tires for he car, you 24 determined you were going to remove thos tires, is that 25 right? 29 • 1 A Correct. 2 Q And you went out and started removing the 3 tires, is that correct? 9 A I pretended I was going to do them, yes. 5 Q You pretended? 6 A Yes. 7 Q Did you have a lug wrench? 8 A I had a socket and wrench, yes. 9 Q Did you begin to remove the nuts? 10 A No, I did not. There are plastic covers on 11 the lug nuts of this certain vehicle. I removed two of 12 those. 13 Q Okay. That was more than pretending, you 14 actually starte d the process, didn't you? 15 A I initiated the process, yes. 16 Q And that is when she accosted you, correct? 17 A Correct. 18 Q And that is when you called the police. 19 A After she grabbed me by the face and threw me 20 to the ground, I stood up. We had a confrontation a little 21 bit about her n ephew and her brother. She didn't like my 22 comments so she kicked me in the groin. I pushed her back, 23 said stop. She came forward, kicked me wice more. I said 24 that is enough. 25 Q You made a couple of derogatory comments 30 • 1 about her nephew? 2 A Correct. 3 Q Such as? 4 A Unfortunately her nephew had been killed 5 previous, a couple, three weeks earlier in a drunk driving 6 accident, dr iving the wrong way on 83, and hit a vehicle 7 head-on. We discussed it a little bit. We brought up the 8 issue about it was sorry about what happened to him, but 9 what if he w ould have killed somebody else in that act. She 10 got upset ab out it. 11 There was some issues about her brother, 12 Brian, being convicted of drunk driving before that. He had 13 set quite an example for his son, and some things like that. 14 Q Did you tell Cheryl at that point that her 15 nephew deser ved to die? 16 A I told Cheryl that if somebody -- I said, 17 yeah, I believe I did say that at the time. 18 Q Is that when she kicked you? 19 A Yes, it is. 20 Q The death had occurred only three weeks 21 prior? 22 A Something like that, yes. 23 Q Did you go to the funerali? 24 A Yes, I did. 25 Q Did Cheryl? 31 • . 1 A Yes, she did. 2 Q But he deserved to die, is that your opinion? 3 A No, Tony was a good kid. He made a bad 4 mistake, bad choice, and ended up dying from it. 5 Fortunately his death -- nobody else was killed during his 6 death, and that is fortunate toward him because that would 7 be something hard for anybody to accept. 8 MR. WASS: I have nothing further. 9 THE COURT: I want to make sure we cover, 10 this child wa s born, am I correct, on March 25, 2002? 11 MS. PUGH: Yes. 12 THE COURT: I haven't exactly heard anything. 13 In looking at one of these memorandums, we have child born 14 in 2002, but these parties were living separate and apart 15 from 2001 to 2004. Then we have a year back together, 16 December 2004 to November 2005. I want to hear about what 17 this witness was doing with regard to taking care of the 18 child during, up until December 2004. Can we cover that? 19 Would you min d doing that? 20 MS. PUGH: Sure. Sure. 21 REDIRECT EXAMINATION 22 BY MS. PUGH: 23 Q As the Judge mentioned, w at -- I think we 29 talked a litt le bit about your role in H nnah's life after 25 she was born. 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 29 25 A Correct. Q And how many nights a week did she spend with you? A At the very beginning, it may have been two or three nights a week. Later on it was five, six. Sometimes it was over a two week period that she would spend there continuously. From the time Hannah was born, we celebrated all her birthdays together. S'he had toys there. I have photos with me of her being at the house playing with toys. She had everything there as a functional thing. She had her formula there, She had diapers there. My house at 6 Mill Road, we pretty much, even though Cheryl kept a residency at her brother's, pretty much lived as a family ninety percent of the time at my house at 6 Mill Road. Q When you were speaking abQUt her asthma treatments, you also, on you -- did you give her the asthma treatments before you actually lived together starting in December of 2004? You had prior to that? A Correct. I had given Hannah asthma treatments from the time she was born. Like I said, it is very difficult when she was young, she d'dn't know what was going on, she just knew she had this mas placed over her face. She would fight it, she would cry. It was very tough 33 1 to just hold her and force her to take this. Because it was 2 for her benefit. 3 THE COURT: Did I get that right, from the 4 time of birth until December 2004, when they began again to 5 cohabitate, you are saying that the child was with you 6 solely four to five nights in every two week period? 7 THE WITNESS: No. It was sometimes four 8 nights a week, sometimes fi ve nights a week. At times there 9 would be a two week period where Cheryl would stay there 10 continuously. She did have a residency at her brother's she 11 did pick mail up at. A lot of times she picked up the mail 12 at the bowling alley. Her brother would bring it to the 13 bowling alley. 14 THE COURT: I want to be crystal clear, there 15 would be some times your wi fe would come and you would live 16 together, even during this period of separation. 17 THE WITNESS: Correct. 18 THE COURT: You are saying that, I mean a 19 week is seven days, and you are saying that you had her four 20 or five nights per week and the mother only had her two 21 nights during that time. 22 THE WITNESS: No. I meant she would be there 23 with Hannah. 24 THE COURT: So the four or five nights you 25 would be together, the moth er was always present. 39 1 THE WITNESS: Present. 2 THE COURT: Continue. 3 BY MS. PUGH: 4 Q Attorney Wass had asked you some questions 5 about the bills for the household and who paid them. You 6 had mentioned that you had given Cheryl money toward the 7 rent and daycare. Who bought food, clothes, things of that 8 nature, things that you need in a house, .other than paying 9 the rental bill? 10 A We both shared that expense. Like I said, we 11 both contributed to the household. My mother, her hobby is 12 shopping, she contributes a lot of clothes to Hannah as well 13 as my other sons. The sneakers Hannah has got, the boots 14 Hannah got, the coats I had all purchased, even though we 15 were separated after November. 16 You know, Cheryl wants to'say that I spoil 17 Hannah, when Cheryl left, she took everything of Hannah's. 18 Her bed, her dresser, all her clothes, all her toys, all the 19 photos, everything. At this point, I am not trying to spoil 20 Hannah, I am just trying to reset her bedroom up. I had to 21 go out and purchase a new bed, new dresser, new toys, new 22 clothes. Just everything. 23 There was no confrontatio when she left. We 24 shared the same bed the night before she moved out. So it 25 was not a mean, mean confrontational exi I helped her 35 1 pack her stuff, helped her carry some of her stuff out. And 2 we got along fine until January 2nd, she just stopped me 3 from seeing Hannah, said no more. 4 Q After Mrs. Kleeman left in December, she 5 still allowed you to see Hannah? 6 A Correct. 7 Q And we talked about the incident in October 8 where Mrs. Kleeman told you that she wanted to get a divorce 9 and there was some violence between the two of you. 10 A Correct. 11 Q Was that the only time there had ever been -- 12 you had ever witnessed Cheryl be violent toward another 13 person? 14 A No. Back in 2001, before we separated the 15 first time, Cheryl and I were going through some problems. 16 I had -- was sitting at Snappers Restaurant in Mechanicsburg 17 talking to a friend of mine. Cheryl found out where I was 18 sitting, came over -- it was a female friend -- pulled the 19 car door open to her car, punched her in the face, twice. 20 I got out of the car, went around the other 21 side, grabbed Cheryl, pulled her away from the vehicle. She 22 bit me in the face. The female had left. Cheryl got in her 23 car and left. 24 Another incident, July of 2001, I had tried 25 to purchase a set of ceramic pigs -- Che yl collects pigs -- 36 1 from a friend. There was a message received at the home, 2 Cheryl thought I was having an affair. When I got back to 3 the house that night, she was all ready to beat the hell out 4 of me. She beat me with her hands until her hands were 5 sore. At that point she kicked me and bit me on the back, 6 leaving bruises and bite marks. 7 MS. PUGH: I have no further questions. 8 THE COURT: The incident at Snappers 9 Restaurant, you say you were parked in a car in the parking 10 lot with a woman. 11 THE WITNESS: Correct. 12 THE COURT: What time of day was that? 13 THE WITNESS: About 4:30 p.m. 14 THE COURT: In the afternoon. 15 THE WITNESS: Yes. 16 RECROSS-EXAMINATION 17 BY MR. WASS: 18 Q This event at Snappers Restaurant, this woman 19 that you were meeting was a woman you had worked with at 20 Ralston Purina, is that correct? 21 A Correct. 22 Q And at the time of this incident, you were no 23 longer working at Ralston Purina, is thak correct? 24 A Correct. ~ 25 Q You were working I think at the Capital City 37 1 Mall? 2 A Correct. 3 Q It was prearranged that you were going to 4 meet this lady . What is her name? 5 A Petra. 6 Q Petra, P-e-t-r-a? 7 A P-e-t-r-a. 8 Q It was prearranged that you were going to 9 meet Petra at Snappers Restaurant, wasn't it? 10 A She had stopped by my work and dropped a 11 Christmas card off to me. So I had picked one up and was 12 planning to re turn it to her that evening, yes. 13 Q Had you been dating Petra? 14 A Petra. 15 Q Had you been dating Petra during periods of 16 your separatio n from Cheryl? 17 A No. 18 Q You were not having any affair with her at 19 all? 20 A No. 21 Q Okay. But you did have this prearranged 22 meeting? 23 A Correct. 29 Q And you drove your truck to Snappers? 25 A Correct. 38 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 And this lady drove her car to Snappers? A Correct. Q And you were married to Cheryl, is that correct? A Yes, we were. Q And it was during a period of time that you were attempting to reconcile? A There had been an issue before that where we were having problems again at that time. Cheryl was at a convention in Pittsburgh at the time. Q Did you hear my question? Did this occur at a time when you and Cheryl were making an active effort to reconcile? A No. Q No. A No. Q But Cheryl did follow you to the restaurant, didn't she? A Yes, she did. Q And the event that you stated did occur, did it not? A Yes, it did. Q Cheryl did following your separation in December of 2005 make several arrangemen s with you to have you have Hannah in your company for peri ds of time, isn't 39 1 that correct? 2 A Yes, she did. 3 Q One of those was Christmas Day, was it not? 4 A Yes, it was. 5 Q She gave you the opportunity to have Hannah 6 and take Hannah to your parents place to celebrate 7 Christmas, did she not? 8 A Yes, she did. 9 Q And did she tell you what time Hannah was to 10 be brought home? 11 A She did mention a time. I don't recall at 12 this time. 13 Q Did she tell you eight o'clock? 14 A It i s very possible, yes. 15 Q And at eight o'clock did you call her and say 16 you wanted to keep Hannah overnight? 17 A I do not believe on that date I did not. 18 Q Did you call her that Christmas night, call 19 Cheryl? 20 A Yes, I did. 21 Q What was the purpose of tie call? 22 A I to ld her that Hannah was playing, we were 23 trying to get her s tuff wrapped up, we w uld be running a 24 little bit late. 25 Q And what time did you get Hannah home? 40 1 A I believe it was 8:30. 2 Q And during that telephone'conversation, did 3 you not say to Cheryl, what would you do if I didn't bring 4 her? 5 A Not during that conversation, no. 6 Q At a subsequent conversation? 7 A At a subsequent conversation. 8 Q And what happened when you made that comment 9 in the subsequent conversation? 10 A The subsequent conversation was a little 11 different. Hannah was at my house for a couple hours. The 12 time we spent together was very limited. So Hannah was in 13 there getting a bath, I called Cheryl, said we are running 14 late, she would like to stay and finishing watching her 15 movie when she gets out of the tub. Can she do that? She 16 said no, I told you to have her here by a certain time. If 17 you are not here I am calling the cops. I said Cheryl, I am 18 not going to make it there so I guess you are going to have 19 to call. 20 Q You didn't say anything about what if I just 21 kept her, what are you going to do? 22 A I don't believe I made a statement like that. 23 There may have been a statement later on in the conversation 24 something like that, but, no, she had br ught out the issue 25 about the cops as soon as I asked about of getting her home 41 1 on time. 2 Q Was that the last time Cheryl permitted you 3 to have Hannah with you -- 9 A No. 5 Q -- prior to a court order? 6 A No. 7 Q Was there another time after that? 8 A Yeah. There was another time after that 9 where I took her home. I had bought tickets for Hannah for 10 Christmas to go to the Elmo on Ice premiere at Hershey. 11 When I brought her home that evening she said, her bedtime 12 was at nine o'clock. I believe we were there at 9:02 or 13 9:05. I walked up to the door and handed Hannah to Cheryl. 19 I said, I would like to pick her up Thursday, we have these 15 tickets I got her for Christmas to go to this Elmo thing. 16 She said, I don't think you will ever see her again. I 17 said -- my statement to her was Cheryl, that is not right, 18 don't start something that you can't win. 19 MR. WASS: That is all. Thank you. 20 THE COURT: Okay. You can step down, sir. 21 THE WITNESS: Thank you. 22 THE COURT: Call your next witness, Ms. Pugh. 23 MS. PUGH: I am going to ail Mr. Holloway's 29 mother, Dixie. ~ 25 THE COURT: Come up here, ma'am. 42 1 Whereupon, 2 DIXIE IRENE HOLLOWAY 3 havin g been duly sworn, testified !as follows: 4 DIRECT EXAMINATION 5 BY MS. PUGH: 6 Q Mrs. Holloway, I just have a few questions 7 for you . 8 THE COURT: State your name first, your full 9 name. 10 THE WITNESS: Dixie Irene Holloway. 11 BY MS. PUGH: 12 Q What is your relationship to the plaintiff? 13 A His mother. 14 Q After Hannah was born, what were your 15 observa tions of the relationship between Mr. Holloway and 16 Hannah? 17 A He was always there for her. He was assumed 18 was her father. I mean they got along real well. 19 Q Were there times when they, Cheryl, Hannah 20 and Mr. Holloway, spent times with you at your home? 21 A Oh, yes, lots of time. 22 Q Can you give me some examples of some 23 occasions? 24 A I can't remember specific dates, but I know 25 we had, like Sundays, we had picnics, th y were there. 93 • 1 Q Were Cheryl and Hannah? 2 A Pardon? 3 Q Did Cheryl and Hannah come to the picnics? 4 A Yes. 5 Q When Hannah wanted to get Mr. Holloway's 6 attention, what did she call him? 7 A She called him Ray for awhile, but then she 8 started calling him dad toward the end. 9 Q Have you ever witnessed any violent behavior 10 by Mr. Holloway towards Mrs. Kleeman or Hannah? 11 A No. 12 Q Can you give an assessment of what his 13 parenting style is with the children -- with Hannah? 14 A Well, he spoils her. I will be honest, he 15 does. She gets what she wants. 16 Q There was a time where Mr. Holloway lived 17 with you and yo ur husband, his father. 18 A Yes. 19 Q Did Cheryl and Hannah stay with you overnight 20 at your home at all? 21 A Weekends. 22 Q How often would you say that was? 23 A It was every weekend after he was there for 24 awhile. When he first moved in, I don't think she did, but 25 then toward the end it was from Friday night to Sunday 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 night. Q How old was Hannah at that, time? A I guess she would have been two. Q So that was in about 2004? A Okay, yeah, I think it would have been. MS. PUGH: I have no further questions at this time. BY MR. WASS: CROSS-EXAMINATION Q Did I understand there was a period of time when your son moved to your home? A He lived in my basement, yes. Q Can you recall when that occurred? A Let me think. The Christmas of -- the Christmas of -- I guess it would have been in January or February two years ago. Q 2004? A Yeah. Q Okay. A I think that is when. Q And initially he came to live with you and your husband in your home alone, is that correct? A When he first moved in, yeah. Q He and Cheryl were separated, you knew that? A Yeah. 95 • 1 Q And then it was some time after that that 2 Cheryl and Han nah would come over to your home to visit, is 3 that correct, and stay overnight? 4 A Uh-huh. 5 Q Was that only on weekends? 6 A It started out weekends, yeah. -7 Q And when did it start in relation to February 8 of 2004? g A It wasn't too long. They would -- she would 10 be there, and then they would fight and bicker, and then she 11 would come the next weekend or -- 12 Q It was always weekends though, wasn't it? 13 A I don't remember if she stayed any during the 14 week. I know it started to get more often then, that's why 15 I told them t hey both had to -- if they were going to be 16 together, to move out and find their own place. 1.7 Q And that occurred when, sometime in December 18 of that year, that they got their own place and got back 19 together? 20 A Yeah, December, yeah. 21 Q So Cheryl was typically there on a frequent 22 basis during parts of 2004 on weekends? 23 A Uh-huh. 29 4 Okay. ~ 25 A I mean she would come up during the week, but 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 she would never stay overnight. Q In terms of staying overnight -- A Right. Q -- it was really only weekends, wasn't it? A Mostly weekends, yeah. I don't remember -- a couple mornings she would get up Friday morning to go to work, but I -- it wasn't that often. MR. WASS: That is all. Thank you. MS. PUGH: I don`t have any other questions. THE COURT: You may step down. I'll tell you what, why don't we take a brief recess here? If you give the order of your witnesses here to Mr. Lehman, I will kind of ask him to get back there and line them up. So we can facilitate a little quicker movement. We stand in recess until a quarter of. Ma'am, once you testify you may remain in the room if you like. That's up to you. (Whereupon, a recess was taken from 10:35 a.m. until 10:45 a.m.) THE COURT: Thank you. Please be seated. Ms. Pugh, if you would call your next witness. MS. PUGH: At this time I would like to call Joanne Berkheimer. Whereupon, JOANNE BERKHEIMER 47 1 having been duly sworn, testified as follows: 2 DIRECT EXAMINATION 3 BY MS. PUGH: 4 Q What is your relationship to Mr. Holloway? 5 A He is my ex-husband. 6 Q How long were you married? 7 A About ten years. 8 Q Do you have any children together? 9 A Yes. 10 Q How old are they? 11 A 18, and the twins are 17. 12 Q Twins? 13 Q Do you have a support order against -- a 14 child support order against Mr. Holloway? 15 A Yeah. 16 Q Is he current on his support order? 17 A Is he paying now? Yes. He has -- there was 18 -- 19 Q Was there - 20 A When he wasn't working, there was arrearage, 21 but he is current now. 22 Q Okay. How long ago did you and Mr. Holloway 23 separate? 24 A '95. 25 Q Since you separated, has he continued to 48 _. _ 1 spend time with the boys? 2 A Yes. 3 Q Has he ever been violent With the children? 4 A No. 5 Q Can you describe his parenting style when you 6 were married, how he treated the children? 7 A He was always good to the kids. I mean he 8 treated them how you are supposed to. 9 Q Can you elaborate a little bit more? 10 A I mean he always played with them. And, you 11 know, when I worked, he would help, you know, he would take 12 care of them. He helped with dinner, bathing them. Things 13 like that. 14 Q What is your understanding of the 15 relationship between Mr. Holloway and Hannah? 16 A My understanding is that, well, I mean that 17 he loves her and he likes to spend time with her. 18 Q Have you ever been at any,'family functions 19 with Mr. Holl oway and Ms. Kleeman and Haj~nah? 20 A Yeah, her birthday. 21 Q Hannah's birthday? 22 A Correct. 23 Q The most recent birthday, this year? 29 A No. We were at -- I don't think Raymond was 25 there, but I was at Raymond's sister's bridal shower, Hannah 49 1 and Cheryl were there. I am trying to think if there is any 2 other ones. 3 Q Do you know the frequencythat after Hannah 4 was born, that Mr. Holloway, Hannah and Mrs. Kleeman spent 5 time together? 6 A The three of them? 7 Q Yes. 8 A Well, like, I know like h~ would pick her up 9 sometimes from my brother's, if I would go out. I mean I 10 didn't go out all the time. I'd be going out the road and 11 he might be picking her up. He might stop down and talk to 12 the boys if they weren't going over that time. Because I 13 live right down the road from her brother, which they used 19 to baby-sit Hannah. And, you know, the boys would come home 15 and talk about Hannah all the time. 16 Q Do they consider Hannah their sister? 17 A Yes, we discussed that before. 18 Q Before when? 19 A Before, when they were together, I said it is 20 the same as if, you know, cause I have children to my 21 husband now, and they are, you know, we have, you know, I 22 had all of them, and so they are brother and sister. The 23 boys consider her as their sister. I mean they have said 24 that quite often. 25 Q Has Mr. Holloway ever to en care of your 50 • 1 children that you have with your current husband? 2 A Oh, they went -- yes, two of them. They went 3 over to spend some time over there the one football -- I 4 don't think it was a Super Bowl, might have been the Super 5 Bowl, but they went over to his house, yes. 6 Q Has he ever put your children to your second 7 husband in harms way, to your knowledge? 8 A No. I wouldn't let them go there if he did. 9 Q And the boys, the three children, the three 10 boys, he has never put them in harms way? 11 A No, he is fine to them. 12 MS. PUGH: I have no further questions. 13 THE COURT: Cross-examine. 14 CROSS-EXAMINATION 15 BY MR. WASS: 16 Q Mrs. Berkheimer, you identified two functions 17 where you were asked the question if you knew of the 18 relationship a nd observed the relationship between Raymond 19 and Hannah. A nd you mentioned Hannah's birthday party. 20 A Right. 21 Q And you mentioned a bridal. shower for whom? 22 A Raymond's sister. 23 Q Was Raymond there? 24 A No, he wasn't there. It as, I guess it was 25 just girls were there. I don't think. ell, maybe he was 51 1 there. I don't remember. That I don't r~member. I know I 2 was there. Cherry was there, Hannah was .here. Ray's 3 mother was there. 4 Q Cheryl and Hannah were there? 5 A Oh, yeah, I'm sorry. 6 Q It was probably girls only. 7 A Well, Tom was there cause I spoke to him for 8 awhile. It might have been girls only. 9 Q So you don't have a specific recollection of 10 seeing Raymond in the company of Hannah on that particular 11 function? 12 A I didn't stay the whole time so I mean I was 13 not there -- I was there for some of the time, but I don't 14 remember if he was there or not. I am thinking bridal 15 shower, it was girls, you know. I guess he would know more 16 if he was there. 17 Q But you -- 18 THE COURT: I just want to clarify, you 19 haven't really seen Raymond and Hannah interacting very 20 often out. 21 THE WITNESS: Oh, yeah, I,have seen them 22 interact more. I thought he meant the three of them. 23 MR. WASS: No, no. The J dge is correct, 24 what I am driving at is when have you se n Raymond interact 25 with Hannah. 52 • 1 THE WITNESS: Oh. Well, Raymond brought 2 Hannah and Cheryl was there also to my da~ghter's birthday 3 party. Well, two different birthday parties. 4 I have seen him when he has had Hannah and 5 come to get the boys. We talk. Cause my kids would talk, 6 my little girls would talk to Hannah, you know, hi, Hannah. 7 He has come and got her once time I was taking 8 Karol, which is her sister's daughter, to McDonald's. I did 9 not want to leave Hannah there cause I always take them to 10 fun places. I took Hannah with me and Haley. Raymond came 11 there and met me and picked her up from the McDonald's when 12 they were done playing. So I have seen him. Or he will 13 pick her up. So if that is what you mean, yes, I have seen 14 them. 15 BY MR. WASS: 16 Q That is exactly what we mean. 17 A Okay. I thought you meant seen them three 18 all together. 19 Q Was it a large number of times? 20 A When he would pick her up up the road, he 21 would usually come down and say hi to the boys, or we would 22 be driving by and stop and talk. What dd you consider a 23 large amount? Over all the years, I am ure it was quite a 24 few. 25 Q You don't have any idea h w many? 53 1 A You want me to guess? I don't want to be 2 incorrect cause I don't know exactly. 3 Q You don't know, you don't know. The birthday 4 party that you mentioned that you went to that was Hannah's 5 birthday party was not this year, it was a year ago, she was 6 three, is that -- 7 A It was either the three or two. 8 Q Either three or two. 9 A I can't remember which one it was. 10 Q One of the twins is Anthony, is that correct? 11 A Right. 12 Q Now, it is my understanding -- Anthony is now 13 seventeen, correct? 14 A Correct. 15 Q Now, it is my understanding that at a time 16 when Anthony was fourteen years of age, he had a girlfriend 17 who was sixteen, and he left home to go live with that 18 girlfriend. Is that correct? 19 A No, he didn't leave home to go live with her. 20 I mean do you want me to elaborate on it? 21 Q Well, no, he didn't leave to go live with 22 her. Did he leave home? 23 A He went to live with his ad after he got out 29 of the hospital, to stay with his dad fo a little while. 25 Q To stay with -- after he of out of the 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hospital. A Yes. Q Was this when he was fourteen? A Just give me a minute. It was '03. So this is '06 and he is seventeen this year, so he was either fourteen or -- yeah, I guess he was heading toward fifteen. It was the end of the year. Q Late fourteen? A It was December, yeah. Q He left -- what was he in the hospital for? A Cause he had some issues of depression and stuff so he ended up in a hospital. One of those -- Philhaven, that is what it was called. Q And then when he left Philhaven, he went with his father? A He wanted to go stay therE for a little while. Cause then no one else would be around then, the other kids. Q Did he or did he not live with his sixteen year old girlfriend? A He went and stayed with her. He was not supposed to, but that is what he did. Ahd then we went and got him and brought him home a couple mo the later. Cause we kept asking him to come home without awing to get the cops. Come home, come home. 55 1 Q How many months was he living with his 2 girlfriend? 3 A He was living with his dad for awhile and he 9 would just go spend the night there. 5 Q Spend his night where? 6 A At the girlfriend's. And then would he just 7 stay there. 8 Q So that was at a point in time when he was on 9 -- when Tony was living with his dad? 10 A Yeah -- no, he was staying with his dad. He 11 was really supposed to be living with me. He was one of 12 those rebellious kids that just will do whatever they want 13 to do. 14 Q So Tony liked to do whatever he wanted to do? 15 A Right. 16 Q And, at this point in time that we are 17 talking about, he was supposed to be with you, but he was 18 actually stayi ng with -- 19 A Recovering with his dad, yes. 20 Q Okay. But instead of staying with his dad 21 all the time, at nighttime he would go be with his 22 girlfriend? 23 A Well, I think he would ge off the bus and 24 just stay ther e and wouldn't come home. 25 Q Okay. But he would spend nights there? 56 1 A Yeah. 2 Q With his girlfriend? 3 A Well, we weren't -- we weren't at her house. 9 The mother sai d they slept in separate rooms. 5 Q How old is this -- 6 A You can make your decision. on that. 7 Q This girlfriend was two years older than him? 8 A A year and a half older. 9 Q Another year and a half? 10 A Not quite a year and a half actually. 11 Q How long did this go on? 12 A Just for, I think it was two and a half, 13 three months. 14 Q And it took you guys two end a half to three 15 months to put an end to it? 16 A Well, we had the cops there quite often. 17 And, yeah, you can't make him come home. I mean you can, 18 but then they leave and go, then you got to just go get them 19 again and brin g them back. 20 Q Well, you heard Raymond say and you heard -- 21 well, you were n't here when his mother testified? 22 A No. 23 Q You didn't hear Raymond s y either, in his 29 testimony Raym ond indicated that he was omewhat lax as a 25 father and was not a heavy disciplinaria So it doesn't -- 57 1 A Well, if you mean smacking', him and stuff like 2 that, yeah, that is what he means by that. 3 Q So then it wouldn't surprise you that Raymond 4 would let his son spend his nights with his girlfriend? 5 A No, when he asked for him to come over to -- 6 when he talked to me about letting Anthony recover with him, 7 get his life back together, he said -- and I discussed that 8 with him, I don't really want him living with his 9 girlfriend. And he said, I don't want him spending time 10 with her either. I didn't even really want her coming over 11 to Ray's house. He said, that is not going to be lot -- not 12 a lot of times cause I am agreeing with me. I mean he 13 agreed with me that that shouldn't be what he should do. 14 Q But it happened for two or three months? 15 A The only way you could have done that if you 16 went and got him and chained him up. Cause he would leave. 17 He is one of those very -- 18 Q Headstrong? 19 A That could be the word you want to use. But 20 I mean we would have had to have done and done things we 21 don't approve of as parents. Beat the chap out of him. Who 22 wants to do that? 23 Q You had indicated that th support order is 24 current. What do you mean by that? His. 25 A Cause he makes his payments like he is 58 1 supposed to. 2 Q Raymond is making his regular payments? 3 A Right. And some on the arrearage also. 9 Q There is an arrearage. 5 A Yeah, I did, I think I said that. 6 Q What do -- do you recall alpproximately 7 currently what that arrearage might be? 8 A Truthfully I don't know. 9 Q It is in excess of $7000.00? 10 A Oh, no, he don't owe me that much. I am sure 11 of that. 12 Q. You haven't complained publicly in the past 13 that he is beh ind on his payments, which is how he built up 14 these arrears? 15 A No, I don't. Because actually if you would 16 ask the people at the Domestic Relations, I -- whenever a 17 court hearing would come up, I would be like it is okay, I 18 would wait unt il he has a job. I have boys I care about and 19 I am not going to cause a rift between them. 20 So I, you know, Ms. Corn is her name, she 21 would tell you that I always say I don't want to go to 22 court. I don` t want to deal with it that way. 23 Q Thank you. That is all I have. 24 THE COURT: What is the a rangement of, you 25 know, let's ju st take for the last five ears, what kind of 59 1 custody arrangement did you -- did Raymond have with these 2 children -- 3 THE WITNESS: Mine? 9 THE COURT: Yeah. 5 THE WITNESS: Pretty much like, I mean we had 6 one written, you know, the Court did one. But it is pretty 7 much they are both our kids. I shouldn't say they are mine 8 for five days and you can't have them. If they wanted to go 9 to his house, they could go to his house. 10 THE COURT: Where do they normally stay? 11 THE WITNESS: Most of the time at my house. 12 I mean they g o over there as often as they want. Now they 13 are older, th ey have their own plans and they are always 19 with friends and going to movies and that. 15 So they go whenever Raymond will call them 16 and say, hey, you want to go to dinner tonight, or are you 17 coming over. If they don't want to, we don't make them. 18 THE COURT: Redirect. 19 MS. PUGH: I just have one quick question. 20 REDIRECT EXAMINATION 21 BY MS. PUGH: 22 Q Is it true that you sent Tony to Mr, Holloway 23 because he ne eded a father figure? 24 A And he needed to -- cause I have a husband, 25 but he is not -- he has never tried to b their father. He 60 • 1 is just a friend. And he went to Raymond~so that, to help 2 get his life back. Thinking it would have, you know, helped 3 him figure out why he was being the way he was. 4 Q So he is capable of being a father figure? 5 A Oh, yeah, or I would have never -- I would 6 have fought for full custody or whatever, if I thought he 7 couldn't be the father. 8 Q The issues of Tony going to the young lady's 9 house, did Mr. Holloway explicitly allow that to happen? 10 A No. I believe he disagreeid -- as we talked, 11 he agreed with me, and disagreed with Anthony, that he 12 should not be spending so much time with her. They went to 13 school together and, you know, that is where I guess they 14 had met. 15 MS. PUGH: I don't have any further 16 questions. 17 THE COURT: Let me go back to one thing that 18 I just asked you about. Now, you have been divorced since 19 1995. 20 THE WITNESS: Yeah. 21 THE COURT: So the children at that point 22 were approximately eight, nine years old'when that happened. 23 THE WITNESS: Actually I kink that was -- 24 yeah. 25 THE COURT: You know, wha was the custody 61 • 1 like at that point? 2 THE WITNESS: It was like very other 3 weekend. Well, no, I'm sorry, it has beem so long. It was 9 -- he would get them like one day of the weekend, he was 5 supposed to get them like Friday this week and Saturday next 6 week. That is how it was written out. That way he had them 7 one day each weekend. And during the week he was supposed 8 to get them, I can't remember which day. 9 THE COURT: So you had thej primary custody of 10 these children when they were little. 11 THE WITNESS: Right. 12 THE COURT: Would he get dhem one day a week? 13 THE WITNESS: That is how,'we said it in 14 court. I have got to be honest with you,' I don't think we 15 really followed that at all. 16 THE COURT: You just had mutual agreement, 17 but generally they were in your home? 18 THE WITNESS: Yeah. 19 THE COURT: Sorry. Anything further? 20 MR. WASS: I do have a gy:estion, I 21 RECROSS-EXAMINATION 22 BY MR. WASS: 23 Q When you and Raymond were married, did you -- 24 did the two of you ever engage in swingi g parties? Do you 25 know what I mean? 62 1 A May I ask what that has to',do with this? 2 Q May I ask you to answer the question? 3 A Yes. 4 Q Is that something that he enjoyed? 5 A Yes. I think he also would never have asked 6 to do that. 7 Q Pardon? 8 A I said yes, or I think he would never have 9 asked to do t hat. 10 Q He asked you to engage in :these swinging 11 parties with other couples? 12 A Right. Never at our house. 13 Q Okay. Thank you. Fine. But you did it to 14 please him? 15 A Yes, 16 MR. WASS: That is a11. 17 MS. PUGH: I am going to object to this line 18 of questionin g, relevance. 19 THE WITNESS: Yeah, I donut -- 20 MR. WASS: Well, relevancy is relevancy as a 21 parent and as a person instilling proper morals in their 22 children. We are going to present other testimony on that. 23 THE COURT: We don't have to expand it any 24 further than that. She said it happened. 25 MR. WASS: And I am done. 63 1 THE WITNESS: Am I allowed', to say something? 2 MS. PUGH: I think the issue is -- 3 THE WITNESS: I would like to say that was 9 something that the kids, ev en as old as they are now, have 5 no clue. 6 MS. PUGH: O kay. So -- 7 THE WITNESS: So you can still give kids 8 morals ev en if it is not, I know -- good morals -- even if 9 it is not totally what soci ety believes is good morals. 10 THE COURT: Your testimony is it was in 11 private. 12 THE WITNESS: That is what I was trying to 13 say. 14 THE COURT: Your children never observed or, 15 in your o pinion, kn ew about it. 16 THE WITNESS: No. And probably if I am 17 correct - - 18 THE COURT: We will conclude on that. 19 Anything further? Okay, ma 'am, you may Step down. 20 Do you have any further witnesses? 21 MS. PUGH: I don't, Your Honor. 22 THE COURT: Plaintiff resks. Mr. Wass. 23 MR. WASS: I will call m first witness, 24 Your Hono r, Cheryl Kleeman. 25 THE COURT: Just for scheduling purposes, I 64 1 have a Board of Judges meeting. 2 Just have a seat there, I will get you in a 3 second. 4 I have a Board of Judges meeting at noon and 5 they are giving us training on intermediate punishment. 6 Here is the choices, I have an injunction at 1:30, and 7 something canceled on Friday, I have almost the whole day 8 open. I don't know what your schedules are like. If this 9 doesn't go over, I can check with my secretary, try to see 10 if, you know, if this is going to take, you know, if we got 11 back in at 1:15 and it took to 2:15, I could see if the 12 group behind you would move back a little bit or wait. I 13 .don't expect that to go all afternoon. 14 What would be your druthe~s? Just Friday 15 almost anytime or, you know, I mean I want to get this done 16 this week because it is critical. 17 MR. WASS: Your Honor, I -- this witness will 18 be on the witness stand for quite a period of time. I fear 19 that if you are going to have your meeting at 12, she will 20 not be done, and I have three other witnesses. And I doubt 21 that we will squeeze them in this afternoon. 22 MS. PUGH: I have no objection to continuing 23 it until Friday if you are available. 24 MR. WASS: I am available. 25 THE COURT: I have one, you know, oh, it is 65 • 1 another injunctive relief on a land development problem. I 2 don't believe that will go all Thursday afternoon. But just 3 to be on the safe side, why don't we then set the 4 continuance of this for 10:30 on Friday? That will give me 5 some -- I can get them in earlier if need be. 6 You have to understand, I can't imagine that 7 it would be even over on to Friday that injunctive problem, 8 but you might be waiting just a little bit. We should be 9 able to wrap this up then Friday morning. Okay. I will put 10 that in the order at the end of this. 11 MR. WASS: Right. We are going to go until 12 12. 13 THE COURT: Absolutely. 14 MR. WASS: I'm sorry. 15 THE COURT: Ma'am. 16 Whereupon, 17 CHERYL LEE KLEEMAN 18 having been duly sworn, testified as follows: 19 DIRECT EXAMINATION 20 BY MR. WASS: 21 Q State your full name, please 22 A Cheryl Lee Kleeman. 23 Q For the benefit of the co rt reporter, would 29 spell your last name? 25 A K-1-e-e-m-a-n. 66 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 How old are you, Cheryl? A 34. Q And what is your current residence? A 319 Turnpik e Road in Newburg, Pa. Q That is in Cumberland County, is it? A Yes, it is. Q And is that your home or is that a temporary residence? A I call it my home, but it is a temporary residence. I am living with my sister and her family. Q And your sister's name is? A Bonnie Deimler, D-e-i-m-l-e-r. Q She is married? A Yes, she is. Q And her husband's name? A Brian, B-r-i-a-n. Q And how long have you lived with those folks, your sister and your brother-in-law? A Since I moved out from my home at Ryders Lane the week of Thanksgiving 'O5. Q Was it the day before Thanksgiving? A Yes. Q November 23, 2005? A Xes, Q Who else lives in that ho e where you are 67 _ _ _ • 1 currently residing? 2 A My sister's two children, Charles a nd Holly. 3 Q How old is Charles? 9 A Charles is fourteen. 5 Q And Holly is a girl? 6 A Holly is six. 7 Q And she is six. That is a', working farm, 8 isn`t it? 9 A Yes, it is a dairy farm. 10 Q And since you have moved in there, do you 11 help out with the chores? 12 A Yes, I do. 13 Q Such as? 19 A I get up every morning at'S:00 a.m. before 15 going to my r egular job and help my sister do farm work 16 until approxi mately 6:00 a.m., at which Cime I go down to 17 the house and get ready to go to my regular job. And I am 18 in the house until my sister gets done milking the cows and 19 comes down ar ound seven o'clock. 20 Q So you are somewhat of a farmer at this 21 point? 22 A I am learning. 23 Q When you graduated from h"gh school , what job 24 did you take? 25 A I started out as a temporary clerk typist I 68 1 with the state, September 18 of 1989. 2 Q Okay. And where did you graduate from high 3 school? 4 A Halifax Area High School. 5 Q So right from high school into a job with the 6 Commonwealth? 7 A Yes. 8 Q What was your initial job? 9 A I was a clerk for the Department of General 10 Services, kin d of a receptionist type position. 11 'THE COURT: Which department, ma' am? 12 THE WITNESS: General Services. 13 BY MR. WASS: 14 Q And are you still with the Depart ment of 15 General Servi ces? 16 A No. I moved to the Department of Labor and 17 Industry May of 2004. 18 Q And into what kind of a position did you 19 move? 20 A I manage the procurement office f or the 21 Department of Labor and Industry. 22 Q What does the procurement office for the 23 Department of Labor and Industry do? 24 A We handle all the contrac ing of services and 25 supplies for the entire department. 69 1 Q Such as? 2 A We buy vehicles. We do IT type contracts, 3 service c ontracts, janitorial, all kind of supplies. 4 Q Tt sounds like somewhat a responsible 5 position. Are you a supervisor? 6 A Yes, I supervise seven positions, 7 Q So how long have you been !with the 8 Commonwea lth? 9 A Sixteen and a half years. 10 Q From the time you got out of high school? 11 A Yes. 12 Q And you have elevated yourself from clerk 13 typist to a supervisory position, is that correct? 14 A Yes, I have. 15 Q How many times have you been married? 16 A Once. 17 Q And at the present time, on your behalf, have 18 we filed a complaint in divorce in this Court of Cumberland 19 County? 20 A Yes, we have. 21 Q So you are seeking to end'that marriage? 22 A Yes, I am. 23 Q You have a daughter. Wha is your daughter's 24 name? 25 A Hannah Rose Kleeman. 70 1 Q a w s her date of birth Wh t a '~ 2 A March 25, 2002. 3 Q Where was she born? 4 A Holy Spirit Hospital. 5 Q Okay. 6 A Sorry. 7 Q Threw you with that. 8 A Yeah. 9 Q When -- were you married bo Raymond at the 10 time Hannah was born? 11 A Yes, I was. 12 Q And were you married to R~Iymond at the time 13 Hannah was conc eived? 14 A Yes, I was. 15 Q Ts Raymond the natural father of Hannah? 16 A No, he is not. 17 Q Now, when you go to the hospital -- and it 18 doesn't matter whether it's Holy Spirit pr some other 19 hospital -- the folks at the hospital will always insist 20 that you identi fy the father. Don't they? 21 A Yes, 22 Q Have you identified the father on the birth 23 certificate? 24 A No, I have not. 25 Q Is there a reason for tha t? 71 • 1 A Because the donor, as which I refer to it, is 2 not in the pict ure at all, does not acknowledge the 3 pregnancy or an ything. 4 Q Does the donor or natural father even know he 5 is a father? 6 A No. 7 Q And you prefer to have it remain anonymous? 8 A Yes. 9 Q There was some indication in Mr. Holloway's 10 testimony that when -- he did come to visit at the Holy 11 Spirit Hospital after Hannah was born, is that correct? 12 A Yes, he did. 13 Q And there was some indication in his 14 testimony that he was identified as the father? 15 A That is not true. 16 Q Did you identify anybody? 17 A I did not identify anybody as the father. 18 Q Did you identify Raymond Holloway as the 19 father? 20 A No, I did not. 21 Q So if he had the impression that somebody 22 designated him the father, it wasn't you, is that correct? 23 A That is correct. 24 Q Now, because you declined to designate 25 anybody at all as the father, did you be ome aware of 72 • 1 certain legal requirements that would hav~ to occur? 2 A Yes. One of the nurses came into my room and 3 handed me a packet of papers and said that I was required to 9 fill them out. And she had explained to me that because on 5 the birth record I did not indicate a father, that there was 6 a form that would have to be filled out a{~d sent in to the 7 Department of Health due to the fact thatI was legally 8 married at the time, that Raymond had a r~ght to be listed 9 as the father, if he so chose. 10 Q And you had identified Raymond as your 11 husband at that time? 12 A Yes, I did. 13 Q Your status though had ben one of 14 separation, is that correct? ', 15 A Yes. ', 16 Q Let's finish that theme. (Having acquired 17 that information that notification would~be sent to Raymond, 18 did you provide the folks at Holy SpiritHospital with his 19 mailing address? 20 A Yes, I did. 21 Q And were you in contact w~th Raymond after 22 you left the hospital with Hannah? 23 A Yes, I was. 24 Q And did you -- what did y u tell Raymond 25 about the Department of Health issue? 73 • 1 A I was apprehensive about i so I wanted to 2 warn him that he would be getting a certi ied letter in the 3 mail. And I left him know what it was about, that it would 9 be coming from the Department of Health. 5 And I explained to him about this 6 Pennsylvania law that gives him the rightito be listed as 7 father, and he would be getting a paper i~1 the mail 8 certified in which if he so chose to be l~sted as the 9 father, all he had the do was check the b~x, sign the paper 10 and return it to the Department of Health. 11 Q And did you subsequently ]jearn about his 12 receipt of certified mail or a notice that certified mail 13 had been attempted to be delivered at hiss residence? 14 A Yes. In a conversation h~ did indicate to i 15 me, and he even showed me the slip, that~,the mail person 16 left at his house that he had a certified letter at the post 17 office and for him to pick up. I 18 Q And how, when was that interms of time i 19 following the birth of Hannah? 20 A I think it was like maybelthree months after 21 she was born. 22 Q So he had a certified mai~ notice. Did he go 23 pick it up? 29 A No, he did not. 25 Q Did he tell you he didn't pick it up? 74 1 A Yes, he did. 2 Q Did you suspect what it wa ? 3 A Yes, I did. 4 Q Did you tell him what you believed it was? 5 A Yes, I did. I told him it was probably the 6 letter from the Dep artment of Health. 7 Q When were you and Raymond married? 8 A July 11, 1998. 9 Q And when you became married, or even prior to 10 your marriage, did you know that your intended husband, 11 subsequently th en y our husband, had had aj surgical procedure 12 performed? 13 A Yes, I did. 14 Q How did you gain that kno~ledge? 15 A Actu ally it was his firstl,wife that 16 originally told me the first time, shortly after the 17 procedure was d one. 18 Q And e? what was that procedul 19 A That I he had had a vasecto~ty. 20 Q And did Raymond at some pint in time 21 acknowledge to you that he had, in fact,~had a vasectomy? 22 A Yes, he did. 23 Q And a vasectomy does what. 29 A Does not make him able to produce children. 25 Q Was that a concern to you? 75 i 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 It sort of was, yes, becau e I had always wanted children. Q Did you and Raymond discuss the possibility of how you might have children? A We discussed adoption. I had even looked into the Pa. Adoption Network. And Raymo~d was opposed to adoption because he said he didn't want t~ adopt someone else's problem. Because many children within the Pa. Adoption Network were children from abusive homes or had medical conditions, and he did not want too adopt somebody else's problem. Nor did he want to adoptl~, a newborn and run the risk that the birth mother would want! to take a child ~~ back then. Q Was there also discussion reverse the surgical procedure? A Yes, there was. He had t discussed it with a doctor, and the doct he would reverse it, the percentage than able to get me pregnant were very slim. Q So there were two alterna Was there a third alternative discussed? A Yes, there was. Q What was that? A We had a friend, his name was at our wedding as well. And Dave an of attempting to d me that he had said that even if s that he would be fives discussed. was Dave. And he Raymond resembled 76 • 1 each other greatly, about the same height hair and eye 2 color. And for, I would say, a two to th ee month period of 3 time, Raymond tried to convince me to sedwce David into 4 having sex with him in hopes that I would become pregnant, 5 thus saying if I would qet pregnant, it would look like his 6 kid because he and Dave resembled one other greatly. And I 7 told him absol utely not. I would never d{~ that to another 8 human being. 9 Q That was not an alternativle in your mind? 10 A No, absolutely not. 11 Q During the course of timelthat you and 12 Raymond lived together, did you learn of;certain activities 13 of your husban d with regard to Internet alccess on the 14 computer? 15 A Yes, I did. Raymond frequented many, many 16 porn sites and chat rooms on the computed on a regular 17 basis. 18 Q How did you discover that 19 A First, it was because he could spend so much 20 time on it, an d I started questioning hit about it. And he 21 would say he w i as just going on looking a1~ pictures of women 22 and women with animals and different thiq~gs of that nature. 23 Exploring many porn sights. 24 In fact, he made it a jok~ that you could 25 pretty much type anything in on the sear~h bar and and it 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 would bring up a porn site And he said rpe was just looking at pictures, not doing anything. I was getting suspicious because he was doing this night after night after night. And one day I was at home while he was at work or somewhere, and I started checking the history on the computer to she where he had been on the Internet. I could tell that ~e was logging into certain sites in which you had to actually log in and be a member. And there were various chat rooms in there where you could get in and talk sex with other i~eople. Q Okay. So he, he was engaging in this. What was your reaction to it? A I was appalled, against i~'. Told him I hated it and didn't want him doing it. And heiwould just tell me oh, it was no big deal, he wasn't hurting anything, it was just talking to other people on the Internet. They don't really know who we are so what's the bigjdeal. And he continued to do it. Q At some point in time, di~l this activity of Raymond develop into his making a requesi~ of you to do something? ', A Yes. He had been talking~to this one couple 23 who lived in the area, and talked to t 24 Q When you say talking, ve 25 A Instant messaging and in quite frequently. lly or -- se chat rooms. 78 • 1 Okay. He would chat with this couple qui e frequently, and 2 he was trying to convince me that he and should get 3 together with this couple and see where things led. And I 9 said absolutely not. 5 Q Did he indicate any familiarity with this 6 type of activity? 7 A Yeah. He had told me about his past 8 experiences prior to him and I getting together. 9 Q With? Past experiences with whom? 10 A With other couples and otk~er people. 11 Q Prior to your marriage? 12 A Yes, 13 Q With his first wife. 19 A Yes. 15 Q And he wanted to solicit you to become 16 involved in that swinging type of activii~y? 17 A Yes. 18 Q And? 19 A And prior to him and I ge~ting serious with 20 one another, I had told him if that was i~he kind of 21 lifestyle he wanted to continue to have,~that he should just 22 keep on looking because I was in no way interested in that 23 kind of lifestyle. And he said that, fi e, he didn`t need 24 that as long as he had me. And that was short lived. 25 Q Did he continue to indulge in that type of 79 1 activity? 2 A Not to my knowledge. But s far as getting 3 on the porn sites and chatting with otheripeople, he 4 continued to do that. 5 Q That is what I meant. 6 A Yes, yes. 7 Q Did he drop the swinging ilea? 8 A Yes. 9 Q Subsequently, and prior to your first 10 separation, your husband had a job at Ral'iston Purina 11 Company, is that correct? 12 A That is correct. 13 Q And he met a lady there? 14 A Yes, he did. 15 Q And do you recall that lady's name? 16 A I couldn't until this morrping when he 17 mentioned her name was Petra. But I do ~temember that being 18 her name. 19 Q Petra? 20 A Yes. 21 Q That is the same woman th~t was at this 22 restaurant that was Snappers Restaurant„ wasn't it? 23 A Yes, it is. 29 THE COURT: What is the time frame we are 25 talking abo ut here? 80 • 1 BY MR. WASS: 2 Q When was he em to ed at Ra ston Purina? P Y ~- 3 A Oh, my gosh. It is really hard to keep 4 track, he ha d many jobs. I would say from maybe November, 5 December of '99 -- no, I'm sorry, of 2000, until middle of 6 the summer. 7 Q It was a short term employment? 8 A Yeah, six, seven, eight mohths maybe, 9 something li ke that. 10 Q So it was during .the first'. half of the year 11 2000? 12 A Yeah. 13 Q And did you discover your 'husband -- 14 THE COURT: I'm not catching that. I thought 15 you said met her in November of 2000 until the next summer, 16 which would be 2001. 17 THE WITNESS: He met her while he was working 18 at Ralston P urina. It -- I don`t remember exactly when he 19 started. It was during -- it was after, 'let's see, the 1st 20 of July of ' 99, it was probably November, December of '99, 21 he worked th ere and knew her until he -- 22 THE COURT: Got it. 23 THE WITNESS: -- quit or of a different job 24 or lost his job in midsummer of 2000. 25 BY MR. WASS: 81 1 Q So it really was the firstihalf of the year 2 2000? 3 A Yeah. I 4 Q Okay. Did you discover an unusual 5 relationship between your husband and Petra? Was that her 6 name? ', 7 A Yes, that is her name. Yels, I did. He had 8 indicated that he was friends with her at work, although he 9 didn't see her much there, but he spent many nights sending 10 instant messages back and forth on the computer to her night 11 after night. This went on for many months. 12 He had even indicated thaq she was married. 13 And I said, what does her husband think about this. He 19 said, well, her husband is not around mudh and she is just a 15 friend. But I can remember getting on tYje computer -- and I 16 knew where to look in a computer to read e-mails that had 17 been sent back and forth between the two ,, of them. 18 And there was one particular e-mail that she 19 had sent to him in which she says, Ray, $ don't know why I 20 sit here every night on the computer andlI can't wait until 21 you get on line just so I can talk to yo~. And he would sit 22 on there until 1:00, 1:30 in the morningjust instant 23 messaging this person. They would even end e-mail cards 24 back and forth to one another, glad we c icked and, you 25 know, stupid little things like that. 82 1 Q So he would stay up late doing this? 2 A Yes. 3 Q Where were you? 4 A I was in bed. 5 Q You found one message one day from this lady 6 that crushed you. What was that? ', 7 A It was on our second anniversary. 8 Q Which was? 9 A July 11, 2000. And he hadj called me at work 10 to indicate that he had to go run an errajnd to see somebody 11 about buying a cab for the pickup truck tlhat we had. I am 12 like, why ha ve you got to run over there.!. This is our 13 anniversary. If you have to go, wait unt;'il I get off work 14 and let me g o with you. He is no, no, jest let me go, by 15 the time I c an go, I can be back long after you were home 16 from work. I was suspicious. It wasn't ',like Raymond to go 17 off running goofy errands on our anniversary. 18 Q So you checked the computer? 19 A At home to our e-mail acc~unt. I found an 20 e-mail from Petra that said, Ray, I can'1~ meet you, I hope 21 your wife do esn't read this e-mail. And~~,instantly, I 22 assumed he w as having an affair. 23 Q Okay. Now -- 24 THE COURT: What is the m sage again? 25 THE WITNESS: I can't mee t you. I hope your 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wife doesn't read this. BY MR. WASS: i Q That precipitated an argum~nt between you and Raymond I assume? A Yes, it did. Q And you had shared with me',earlier that that represented some kind of turn around in ypur married life? A Yes. That pretty much wasj the beginning of the end. We kind of went our separate waiys from there, although we still lived in the same housel• He would do his thing on weekends, and I would go do my things on weekends. My sister and my parents had permanent camp sites at a campground that summer so I spent many weekends going to the campground with them just tq put space between I us. He had even indicated to me that hewanted to separate. He thought it was best that we would sep~rate and see if it would help our marriage. And I had said~to him, I said I didn't see how a separation was going to','fix our marriage. That if we separated, that would be it. '', Q Then late that year, some~ime in December, an event occurred at Snappers Restaurant. A Yes. i Q Is that correct? A Yes. Q Was that in December? 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • A Yes, it was. Q You folks were still livin together, but both of you were spending a lot of time a~ay from each other? A Yes. Q And you followed your hus A Yes, I did. Q Where, what did he -- did was going? A He had told me he was goi and Garden to see them about a lawnmower for the mall where he was working. Q And, in fact, did he go t A No, he did not. He drove Didn't even stop. Q Where did he go? A He went to Snappers. Q You followed him? A I followed him. Q And when you arrived at you see? A I saw his truck sitting i with a car next to it. And he was sitti the individual. Q Who? one day. know where he to Kerry's Lawn a riding mower Kerry's? right by it. s, what did the parking lot in the car with 85 1 2 3 9 5 6 7 a 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 • A Petra. Q And what did you do? A I walked over to the drive 's side of the car and I opened the door and I asked who it Was. Cause I had never seen her before, and I didn't know what she looked like. He said that this is Petra. And I said, what are you doing. He is like we are just talking. have a Christmas card I wanted to give her. I got angry, ~nd I did punch her one time in the mouth. ~ Q And left? ~ I A I slammed the car door shut, yes. Q That wasn't one of your proudest moments, was it? A No, it was not. Q That was in December of 2( separate from your husband? A I move out January 19, 206 Q Now, at the time that you January of 2001, where had you and Raymo I together? ', 00. When did you 1. moved out in d been living A 6 Mill Road, Mechanicsbur . Q And when you moved out, w ere did you move to? A I moved to Camp Hill, wit a friend of mine named George Dagle. 86 1 Q Spell the last name? ', 2 A D-a-g-1-e. I 3 Q Is he a co-worker? I' 4 A Yes. Well, yes. We had worked together at 5 one point, but we had remained friends. 6 Q Is Mr. Dagle someone with lahom you were ever 7 romantically in volved? 8 A No, it is not. 9 Q Is there an age differencejbetween you and 10 Mr. Dagle? 11 A Yeah. At the time, he wasl probably 12 twenty-five yea rs older than me. 13 Q So he was just a friend? 14 A Yes. 15 Q And was there ever any intimacy between you 16 and Mr. Dagle? 17 A Yes, One night we were atk the house, and it 18 was after Raymo nd and I had separated, ar~d we were standing 19 in the dining r oom and we were hugging or0.e another. And I 20 happened to loo k up, and I saw Raymond peeking in the dining 21 room windows at us. But that was as int~mate as he had ever 22 gotten. 23 Q You never had sexual rela ions with Mr, 24 Dagle? 25 A No, no, e7 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 Q He was a friend that offer~d you a place to stay? A Yes. Q How long did you - - where did Mr. Dagle live, what address? A I think it was 101 St. Joh~'s Drive in Camp Hill. Q And when did you leave that residence? I A October of 2001. Q And where did you go to r~lside at that point? A It was maybe a month or sdl prior to that, my brother Brian and his wife had separated,] so he and I discussed it, and since we both were in tJhe same predicament, separated from our spouses alnd needed financial i and emotional support, he and I rented art apartment or a half a house together in Shiremanstown. i Q Do you remember the addre~s? A 11 Railroad Avenue. Q You and your brother live2l together? A Yes. Both our names wereon the lease, we i split everything 50/50. Q Brian, how do you spell his name? A B-r-y-a-n. Q And his last name? A Is Kleeman. e8 • 1 Q And you are now in October'', of 2001. 2 A Correct. 3 Q Am I right? 4 A Yes. 5 Q When was your daughter Hannah born? 6 A March of 2002. 7 Q Had you had contact with R~ymond between 8 January 19 of 2000 when you separated -- ~I'm sorry, 2001, 9 and October when you moved in with your brother? 10 A Yes, I did. 11 Q How man times? ', Y 12 A Well, let's see, he shower{ up at my work on 13 Valentine's Day and brought me a Valentine's Day gift, which 14 I did not want, but he brought it over. i 15 I had called him one time,, probably 16 February-ish, I was purchasing a compute and it would not 17 fit in my vehicle, and I had asked him t~ meet me somewhere 18 to transport the computer to my home at ~eorge's house. 19 Q And he did? ', 20 A Yes. 21 Q Okay. II'' 22 A We went camping together pn May. 23 Q What was that all about? ~~ 24 A He had called me and aske me if I would go 25 camping with him, just as friends, just o see if we could 89 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 get along and see if there were any feelings there, or if, you know, just to get away for the weekenn and see what would come of it. One of the stipulations of'me agreeing to go was that Raymond would not pressure me for sex. Sex is a very important thing to Raymond. We foug~t greatly about it through our entire marriage. And I said ~ am absolutely not having sex with you that week, and if you~are going to pressure me, I am not going to want to go camping. He had promised me he would not pressure me about it. And we did, in fact, not have sex the whole weekend w~e were camping. Q You did go for the campinc} weekend? A Yes. Q Where was that? I A Shangri-La Campground. Q Near Sunbury? ', A Yes, somewhere up in ther . Q And there was no intimacy between the two of you? A No, there was not. Q Any other contact between January and October between you and Raymond? A I worked Saturday nights t the Silver Springs Speedway. And most Saturday nig ts, Raymond would show up at the speedway and follow me ar and and harass me 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and bother me. We got into several argum$nts in the parking i lot and at other places at the speedway. Q Well, these were unwanted contact? A Unwanted, yes. He just bothered me every Saturday. Q Were there any other conta is that were mutually desirable? A We did get together, I would say September of 2001, and we did go out to dinner. Q September? A September. ' I Q Now, in October of 2001, ere you still separated? A Yes. He had been dating Someone else over the summer months as well. I Q And obviously you had beef dating someone? A I wouldn't say exactly da~ing, but I was with another person, yes. Q What happened then in Oct you change residences? A Yes. My brother and I me Shiremanstown. Q Shiremanstown? A I'm sorry. How long did A year. r of 2001? Did together to live at 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Was that a.one year lease?', A Yes, it was a one year lease. Q And when you left Shiremanstown in October of 2002, where did you move to? A My brother had purchased a'home in New Cumberland, and he had asked me that, woul~Ld I come and live with him and stay for at least one year tp help him with his mortgage and pay rent at his place. And ~ said yes. So I moved with him to his new house in New Cumberland. Q And paid rent? I A And paid rent. Q Were you still separated ~rom Raymond during that period of time? A Yes, I was. I Q Let me backtrack. Hannah~lwas born in March of 2002. A Correct. Q You were still living wit your brother in the rented facility in Shiremanstown, co$rect? A Yes. i Q Did you strike up a relationship once again with Raymond? A Q A Yes, I did. Who initiated that? He did. 92 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 Why, do you know? A He basically said that jus because we were separated, there was no reason we couldn' be friends, So we would talk and get together and occasionally go out for dinner. 'I Q And on those occasions, wa Hannah involved? A After she was born, yes, s e was, Q And did he have the opport pity to see Hannah on those occasions when you and he were t gether? A Yes, I took Hannah with m everywhere I went. Q Did you ever leave her wi h a baby sitter? A No, only when I work. Q Oh, okay. When you worke that is right, you had a five day workweek, who took ca e of Hannah after she was born? A My sister, Karol. Q Karol, last name? A Karol Deimler. Q Karol with a K? A Yeah. Q Where does she live? A 4875 B Deimler Lane in En ol a. Q You would take Hannah ove r to her place, she would baby-sit during the day, you wo A Yes. go to work? 93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And then on these occasion when you and Q Raymond would get together as friends, tylically you would have Hannah with you? A Yes. Q Did there come a time when your relationship with your husband, from whom you were sep rated, began to be more than just friends? A Yes. We started to spend'ng more time together. We did start having an intima e relationship again. I don't remember the exact date. Q Did you stay overnight wi h him or did he stay overnight with you? A I would spend the night a his house. Q Now, Cheryl, we are in th period of time between October of 2001, March of 2002, 's when Hannah was born, and October of 2002. From October of 2001 until Hannah was born, did you have any contac with your husband other than those events that you have already identified for us? A No, other than phone con ersations, no. Q He claims that apparentl you folks had sex while you were pregnant and up until yo gave birth. Is that true? A I don't recall having that period of time, no. with him during 94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 29 25 • Q After Hannah was born, wit what frequency between March or the beginning of April 0 2002 and October of 2002, with what frequency did you and E~aymond get together? A Where we would probably se~ each other once or twice a week. He was dating several o her women at the time. So he was spending many of his wee ends going out with these other women. I mean he was ve y open about that, said that he was dating. I knew their na es. One was Karen. One was Linda. And I think there was a third, but I can't remember her name. But we did spen time together. We did go out to dinner, and we did do di ferent things with one another occasionally. li Q With what frequency during that same period of time, March of '02 to October of '02, lid you spend I overnight with Raymond? ~~ A I can't remember exactly. If we did, it was infrequent, very infrequent. Q During weekdays or only on weekends? I A Weekends only. Q Why? A Because I was adamant that I wanted to be home throughout the week so I could get u for work and have my normal routine and wouldn't be late fo work and things like that. It was just too much to try t spend more time 95 • 1 with him throughout the week. ' 2 Q On these occasions when you might spend 3 overnight with Raymond, was Hannah with you? 4 A Yes. 5 Q And where did she sleep? 6 A He had a love seat that we'~would push up to 7 the end of the bed, with the opening towa~d the foot board 8 of the bed, and she would sleep in there.l~ 9 Q Now, in October of 2002 isllwhen your brother 10 bought his home and you moved with him ini~o New Cumberland. 11 A Yes. ' 12 Q Did you continue your expa~4ding friendship 13 with your husband from whom you were stir separated after 14 that move? ' 15 A Yes. In fact, it had incr~ased. 16 Q So by the time now you are', at New Cumberland 17 living with your brother, you are still s~parated, but are 18 spending more time with Raymond? ' 19 A Almost every weekend. ' 20 Q Almost every weekend. And'IHannah was with 21 you on these occasions, was she? 22 ,A Yes. 23 Q How long did that continue. Did you guys 29 make a decision to actually formally get ack together? 25 A Yes. That -- I lived with my brother in New 96 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 __ _. Cumberland for two years, almost exactly ~wo years. And, like his mother testified earlier, we had been spending time up at their place as well, and they were betting frustrated with us being there. It was an inconvenience to them at times and -- Q Let me stop you there a second. When -- during 2002 and 2003, when you would spen~ time with Raymond at his home, where was that? ~i A Part of the time was at 6 ~Nill Road until he moved out February of '09. III Q And when he moved out fromjthe Mill Road address, which was your old home site -- ~, A Right. I Q -- where did Raymond move to? A He moved to his parents hone in Carlisle. Q And that -- did I hear youjsay that was February? A Yes. Q Of '04? A Yes. Q So at that point when you Ray, you would go visit at his parents ho A Yes. Q And with what frequency mi A That was usually just week gad visits with ise? t that occur? ds. I can 97 • 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 remember being at their place on a weekni mother had expressed to him that she did I there during the week because it was to other people to be there while they are g is getting ready for work in the morning. confusing, and she had asked we keep it t weekends. So I would spend, Hannah a d I would spend the weekends at their house. Usually it as Saturday to Sunday. Sometimes it was Friday to Sunda Raymond worked selling cars at that time and worked almo t every Saturday. And I didn't like being at his parents ho se on Saturday while he was working so I didn't like spe ding Friday night to Saturday at his parents house. I did o it on occasion and usually on the Saturdays he was off. But usually it was Saturday to Sunday from the time he got o f work. Q So you would go over norma ly on Saturday at what time? A He would get off work arou Q And that would -- you woul him and then go over to his parents place A Yeah, I would meet him at would go to his parents place. Q When would you leave norma A Sunday evenings, probably ht once, and his of want Hannah and difficult for tting up and she It was just too just the five. get together with work and we .ly? x:00, seven 98 r~ u 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 o'clock. Q Was this every weekend? A Pretty much, yes. Q And that continued up unti December of 2009? A Yes. Q What commitment and agreem nt did you and Raymond reach in December of 2004? A That if we were going to c ntinue, that we needed to make the commitment and get a p ace together. He was tired of living at his parents house. He badgered me about paying rent and only living, you kn w, through the week at my brother's house, why do that. So I had agreed that, okay, we would move back in togethe which we did the beginning of December. Q Where did you move to? Wh re did you get your place? A Wertz Avenue in Mechanicsb rg, 209 or 206 Wertz Avenue. Q Was that a rented location A Yes, it was a rented house Q How long did you folks liv date did you move in, do you remember? A December 9 I believe. Q Of the year? A 2004. together? What 99 • 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 Q And Hannah obviously moved A Yes. Q How long did you live them A Until the middle of May. really like the house. It was expensive 1 was electric heat. It was very expensive absolutely hated the house. He hated the been looking for another place and found 1 Ryders Lane and convinced me to go along ~ breaking our lease and moving to the other May. Q The question was how long id you live there, when did you move? A I'm sorry. Until mid May, 2005. Q And then together you move to what address? A 9005 Ryders Lane, Mechanic burg. Q Where is that located? A Mechanicsburg. Q And that is where Raymond till resides? A Yes. Q And you left that address? A Yes. Q When? A November 23, 2005. Q During the varying periods of time that you in as well? ~? Raymond didn't ,o live there. It to live there. He landlord. He had .he house on 4005 with him in address in mid 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and Raymond were trying to effect a recon filiation and until you did fully come back together as husba d and wife, in December 2004, Hannah was somewhat part o your lives, wasn't she? A Yes, she was very much. I Q And when you did fully rec ncile with each other, she was certainly part of your lif at Wertz Lane and at Ryder Lane, isn't that correct? A Yes. Q How old was Hannah when yo moved to -- when you reconciled, December of '04, about tw and a half? A Two and a half, a little o er two and a half. Q She was walking by then? A Yes. Q Was she talking? A Yes. Q How did, how did she and y u and Raymond get along with each other as parents and/or q asi-parents and a child would get along? A We got along fine. Q That was not a very good q estion to ask. By what name, when she sta ted to talk, did your daughter call you? A She always called me mommy. Q By what name did she call aymond? 101 C~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 29 25 A Ray. Q Why? A That is what I always refe to him as to her. And from the time she was born, anytime h~ was around, she was around, I always referred to him as R~y, everybody referred to him as Ray. Q And how did he react to th t? A He was all right about it in the beginning. She, when she first started to talk, she eferred to my brother-in-law Paul as daddy quite freque tly. In fact, almost all the time, she was, since my si ter Karol baby-sat her from the time she was two months old nd being they are dairy farmers as well, Paul was around fo a lot throughout the day every day. From the time Hannah as little and could start to talk, she called Paul daddy. To this day she still calls him daddy. Ray would get upset or get mad when Hannah would call Paul daddy and kind of give me heck about it. But I -- to me, he was not her dad, he was just Ray. He was my husband, but he was not her Father. nd I always referred to him as Ray to her. Q How did Raymond treat you daughter, Hannah? A He was very good to her. Q As she grew older, and be an to get into things, did you or did you not try to de elop standards of 102 n U 1 2 3 9 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 discipline for her? A Yes, I did. i~ Q For example? A When we would go out to ea~~t in restaurants, I would want her to sit either in her boost'pr seat or on her chair, and sit still and eat her dinner a d not be jumping up and down and turning around and buggin other diners in the restaurant. So I would continually s y Hannah, please, sit down, you know, you need to sit still, don't bother those people. Things like that. Q How did Ray react to that? A Oh, he would always say, hat's the big deal, she is not hurting anything; they don't r ally care, what does it matter if she stands up. And I would say, Hannah, please sit down. And right there in front f her, he was always saying stuff, what's the big deal, what is she hurting. And I would say the point is, I want to be able to take my kid out in public. I want her to behave. I don't want her to annoy other individuals. There is nothing wrong with having her sit on her butt and beha e out in public. And it was always what does it matter, w at is the big deal. Q Was that the only area of discipline where you and Ray would be at odds with each o her? A No. We would pretty much disagree about 103 • t 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 everything. Q When it came to Hannah? li A Yes. We would go to, say,'the mall, and he would be holding Hannah's hand. I would say now, if you are going to hold her hand, make sure you keep ahold of her. And she was getting to that age where she would like to run off and wander off. He would let go of h r hand and let her run. She would be ten feet away, running down the mall, he would say, oh, I can see her, nothing is oing to happen, she's all right. ail I would say, Ray, get her. I would get so mad because there are so many people in t~e mall, anybody could just run by and grab her. So then I would throw a fit and say, fine, if you are not going to ke~p ahold of her and make her behave, then I will. So I would get ahold of h~r and make her hold my hand. Then he is making comments, I on't know why you always got to be that way and cause a scene when we are out. Q Can you recall any occasi n when he deliberately countermanded some discipli ary direction on your part directed to your daughter? A I can remember a specific incident. I was having a lunch with some girlfriends at ork. He had picked her up at the baby sitter's and surprise me and brought her down to have lunch with us. And my brot er happened to be 104 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 down there having lunch with us. And we ~re sitting in the restaurant having lunch, I was trying to jet her to sit still and behave, and he, he just looked ~t me and said Hannah, you don't have to listen to mommy~~ you can stand up if you want to, or something to that effect. Q Did that then and does it ~ow cause you some concern? A Yes, it does. Q Why? A Because she, whenever I w discipline her the whole entire time we together, if I would tell her she was no something, she would immediately look at was going to countermand what I was sayi do it. Q Do you have any events the that you believe were inappropriate in tE toward your daughter, things he would le+ that he would do with her? A I can remember a time whe. living at 6 Mill Road, Hannah might have somewhere in there, and he had gone over the upstairs and got a BB gun out of the over, knelt down next to Hannah and put showed her how to hold the gun and prete ld try to re living allowed to do ay and see if Ray and allow her to t you can recall rms of conduct her handle, things he was still been about twoish, to the closet in closet. Took it t in her hands and ded like they were 105 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 shooting it. Which I immediately yelled~at him and said Raymond, what on earth are you doing, you, are teaching her how to play with a real gun. He just pre~ty much dismissed me and said, oh, what's the big deal, shelis little, she doesn't understand it. And I took her aw y from him and took her out of the room away from the gu . Q And then another event? A The driving up and down th driveway, he would put her in the front seat of the ca with no car seat, because there was no car seat in the car ecause no one was driving it at the time. Q Was this the unlicensed c r that we talked about -- A Yes. Q -- on cross-examination? A Yes. Q With Raymond? A It was a car he had purch, son for Christmas and it was sitting on unlicensed. And he would put the garbage and put her in the front seat and drive And as he was coming back up the drivewa you know, put the brakes on and then hit rubber going, leaving black marks the wh sed for his eldest he property cans in the trunk own the driveway. then,. he would, the gas and burn le way up the 106 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 driveway week after week after week. THE COURT: I think we arelgoing to have to stop for today. Just before I leave, I w~nt to clarify one thing. Your decision to have this child,l~~~this was solely your decision THE WITNESS: Yes. THE COURT: -- to become p egnant. Why did you do that? THE WITNESS: It was an accident. I didn't intend to get pregnant, it just happened nd -- THE COURT: And when it did, then you never told the real father about it whatsoever. THE WITNESS: No, I did n t. THE COURT: There was no iscussion at any time then between you and Raymond about, well, I think I will have a child and we can raise it to ether or anything like that. THE WITNESS: No. THE COURT: There was no ~ that. THE WITNESS: No. THE COURT: All right. I it there then, counsel, until 10:30 on Fx 5th. Everyone understands that? MR. WASS: Thank you, Your iscussion like am going to leave iday, which is the Honor. We will 107 n U 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 conclude it on Friday. MS. PUGH: May I ask one q~estion. THE COURT: You may. MS. PUGH: Mr. Holloway i~ scheduled to get visitation of Hannah this evening. Is that still in effect? THE COURT: I am going to llow this evening. What is the status on the weekends? I am not promising anything then until we conclude the heari g. THE WITNESS: He just had her last weekend. THE COURT: So it is your weekend anyway. I am going to allow it tonight. We are res ming the hearing on Friday, May 5th, at 10:30. MR. WASS: Thank you, You Honor. MS. PUGH: Thank you. THE COURT: Stand in rece s. (Whereupon, the proceedin adjourned for the day at 12:00 p.m.) 108 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 Friday, Mays, 2006 10:35 a.m. ~' THE COURT: Thank you. Phase be seated. MR. WASS: Good morning, Ybur Honor. THE COURT: Good morning. ;This is a continuation of the custody hearing regar ing Holloway vs Kleeman. I believe, Mr. Wass, we were in the middle of your case, is that correct? MR. WASS: Yes, Your Honor. Cheryl. Whereupon, CHERYL LEE KLEEMAN recalled as a witness, having been previously duly sworn, tes ified as follows: THE COURT: Ma'am, for t e purposes of today's hearing, you are still under oat You may be seated. THE WITNESS: Thank you. DIRECT EXAMINATION (cont~ BY MR. WASS: Q Cheryl, when we broke the completing your testimony, winding up toy The next question that I need to ask of course of time that Cheryl -- or that Hai your life and that you remained married found Raymond to be an honest and truthfi nued) other day, we were and the end of it. ou is during the nah has been in o Raymond, have you 1 person? 109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 la 19 20 21 22 23 24 25 A No, I have not. Q Can you give me any exampl s that would leave you to conclude the answer to that questi n is no? A There have been many instances where he has indicated that he was going to do something or be somewhere and he, he wasn't. Q Well, what was his longest term of employment prior to his current job? A Two years. Q Where was that? A He worked as a maintenanc manager at the Capital City Mall. Q And why was he -- did he uit the job or was he terminated, or do you know? A He was -- his employment here was terminated. He was fired. What I was t ld from him was that he just didn't get along with his b ss and, therefore, his boss fired him. But when the paperw rk came through in the mail and he tried to fight the firin he -- their redson for letting him go was because he had asked the one secretary at work, whom he had had an in imate relationship with, FAX a quote to another mall -- I t ink a mall in York somewhere -- to bid on a maintenance typ work, grass mowing and that kind of stuff. He FAXed a bid quote over to the mall on 110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 29 25 Capital City Mall letterhead, and then hehimself used mall I equipment to go and mow the grass. And ten he -- he was the one taking the money then from the ma~11 for mowing the grass, not the Capital City Mall. Q So he used his employer's stationery and his employer's equipment to do a job for his wn profit? A Yes. Q And, as a result of that, your understanding is that he was fired? A Yes, that is what Capital City Mall, what his boss had indicated his reason for being et go was, Q Another instance would ha e occurred following your final separation. It dea t with the matter of daycare. What was that? A Raymond had showed up num rous times at the daycare center to see Hannah or take her out of daycare. I was never quite sure what his intentions were. Q Let me stop you there rig t for a moment. What daycare are we talking about? A I had Hannah enrolled in he Hildebrandt Daycare Center in Labor and Industry whe e I worked. Q Spell Hildebrandt? A H-i-1-d-e-b-r-a-n-d-t. Q That is a daycare center? A Yes. 111 n U 1 Q Located where? 2 A In the Labor and Industry uilding. 3 Q You availed yourself of th t opportunity 4 cause it was the same building you worked jin? 5 A Yes. Like I said, he had (showed up numerous ~ 6 times to see her or -- I don't know if he was just going to 7 visit her or try to take her out of dayca re and go spend 8 time with her, or whatever his intentions were. 9 The one day he showed up ith some form of 10 paper, which I was not privy to see, but he gave it to the 11 daycare center adviser, Ms. Kim, suppose ly said it was a 12 paper from the Cumberland County Court s ating that he was 13 entitled to take Hannah out of daycare, hat they had to 14 release her to him. 15 Q And was -- are you aware f any such paper or 16 any such order that gave him the right t do that? 17 A No, I am not. I was neve given any copies 18 of the document. I was never even shown the document 19 itself. 20 Q As a result of that incid nt, what then did 21 you do with regard to Hannah's care? 22 A I removed her from daycar for a concern that 23 Raymond would continue to show up there, cause disruption at 29 the daycare center with the other childr n, and/or take her 25 out of daycare without my knowledge or a proval and just 112 u 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 take her. Q When was that, when did th&t event occur? A That happened between January and February. I pulled her out in early February. j Q Of this year, 2006? A Yes. Q And since that date when ou removed Hannah from the daycare who has been the custodi n during your working hours? A My sister, Bonnie Deimler. Q Is she the lady that was 'n court here the other day? A Yes. Q Now, there has been some following your final separation in Novem] you did on several occasions afford Raym~ to have Hannah for periods of time. Is A Yes, I did. Q And there is also some to stopped it. A Yes, I did. Q Why was that? A We had made arrangements part of Christmas Day with her. I met h my home and his parents home and arrange estimony that er of 2005, that nd the opportunity hat correct? timony that you hat he could spend m halfway between for him to pick 113 ~J 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 up. I asked that he have, her back by night because her bedtime was 8:30. Q You have already told us t. that event -- get to the point of why that eight o'clock at ~t. Tell us why event caused you some concern? ~i A Because when it was time for her to be home, he phoned me and said that he wasn't read to bring her back, he wanted to spend more time with her. I said, no, she needs to come back, her bedtime is 8:30. He is like well, what if I don't bring her back. I said, well, then I will call the police. Another instance, I left im have her again for an afternoon on a Sunday. This was rior to taking her out of school. She had to be up bright nd early to go to daycare the next day. I again asked he ave her back by eight o'clock. And the same incident oc urred again, at eight o'clock he phoned me and -- I felt it was a threat. He said, like what if I decide not to br ng her back to you. I said, the same thing I told you the fi st time, I will call the police. Q Was that the reason then hat you terminated any visits at a11? A Yes. When he brought her back that evening, about 9:00 p.m. on a Sunday night, I sai I said, that is it, I said, I am not letting you take he anymore because I 114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 la 19 20 21 22 23 24 25 am tired of you threatening not to bring ~4er back to me every time I let her go with you. Q Right now how hold is Hann~h? A She just turned four. Q And Raymond has indicated yin his testimony that she, on one occasion, will refer to er as daddy, on another occasion as Ray, that she varies ack and forth. Who does she call daddy? A She calls numerous people daddy. I kind of feel bad about that cause I think she is confused. But from the time she could talk, she has referre to my brother-in-law Paul as daddy. She still to this day calls him daddy every time she sees him. My sister and her husband baby-sat her when I first returned to work after maternity 1 ave. So to this day she also calls him daddy. Now living with my sister Bonnie and her husband Bryan, she has referred to sever 1 occasions to Uncle Bryan as daddy. On many times whe my parents have had her, she has even referred to my fat er as daddy. Q So she has a lot of daddy ? A Yeah. Q Cheryl, do you believe that Raymond`s effort to try to seek ongoing visitation with H nnah is motivated by a genuine and sincere concern for Han ah, or do you think 115 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 there is another motive? A I think there is definitel another motive. He has -- Q What is that? A He has left me know that h'~ does not think we should be getting a divorce. He has adam ntly refused to sign the divorce papers. And I truly believe he is just latching -- trying to get her in his life to keep me in his life because he, to this day, does not understand why we should be divorced. Q Cheryl, in the pretrial m morandum that was filed on behalf of Raymond in this case, which you and I have read, is that correct? A Yes. Q There is a reference in t ere to the fact that you are alleged to have left Hannah alone at the Deimler farm where you currently reside hen you go out and help out with milking the cows. Is that true? A Is it true that that occu s? Q Is it true that you leave her alone and unattended? A No, not at all. Q Do you help out with the arm chores? A Yes, I do. Q When you do that, where is Hannah normally? 116 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 Early in the morning, prio~ to her getting up, my -- she is in the house, usually still in bed, and my fourteen year old nephew is in the house ~rith her. Q so you never leave her unajttended? A No. Q There is also some indicatlion made that Raymond, following the final separation, ffered some financial support to you for the benefit f Hannah, Is that correct? A He did, but it was Condit only way he would give me any money towa daycare or towards raising her was if I that he was to have partial custody of h to give him partial custody. Q You liked the financial s but not on those conditions, is that cor A Right. Q During the course of the an incident that was referred to that oc sure when it occurred -- I think Raymond occurred sometime in 2002 or 2003, when pretending, as he said, to remove tires Now, I guess that was in 2005, after you attorney. A Yes. 'oned. He said the ds keeping her in gree in writing r. Which I refused pport obviously, ect? estimony there was urred -- I am not indicated it ie was removing or Erom your vehicle. contacted your 117 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 Q He was making an effort to remove your tires, and there was confrontation between them. Do you remember that testimony? A Yes, I do. II, Q As I recall, Raymond indicated that you threw him to the ground and that is why he call A That is what he said. Q Is that true? A No, it is not. Q Tell me, how tall are you . A Five foot six and a half. Q How much do you weigh? A 125 pounds. Q How tall is Raymond? A Six, one. Q And how much does he weig ? A About 240 pounds. Q Is it possible -- do you a power to throw that man to the ground? A Not at all. Q And did you do so? A No, I did not. Q Did you kick him? A Yes, I did. Q Why? d the police? enough physical 118 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 • i A Because of the derogatory ~omment about my nephew. ~ Q There was another incidentthat Raymond referred to that you had let Hannah with ~im, this was after the final separation, I believe, you had 'deft Hannah with him when you went bowling, and when you r turned there was a confrontation that got physical. Do you emember that testimony? A Yes, I do remember. Q Tell us what happened on hat occasion? A Just to -- Q Number one, were you drin ing? A No, I was not. Q Number two, were you bowl ing? A I do not remember being a the bowling alley. I rem ember it as Hannah and I were just ver at his house at Mill Road vis iting him. Q Strictly a visit? A Yes. Q Tell us what occurred? A We got into an argument, ike we usually do, and I wanted to leave. And he was holdi g Hannah and I said, give he r to me, I want to go home. And he is like, I get t ired of every time you get mad, you want to leave right away. I'm li ke, Ray, I have the preroga ive to leave, give 119 C~ 1 me my daughter, I want to leave. He was physically keeping 2 her away from me and would not give her t~ me. I tried to 3 take her out of his arms and I could not .l! 4 So I went over to the pho ny in the kitchen to 5 call the police, because I was adamant, I', wanted to leave 6 .and I was not leaving without my daughte r. He got angry and 7 ripped the phone out of the wall. I tri e to get Hannah out 8 of his arms again, and he pushed me down on the ground and 9 put his foot on my face and held my down and he said, you 10 can leave if you want, but you are not t king Hannah with 11 you. 12 So when I got up off the loor, I went out to 13 my car to get my cell phone so I could c 11 the police 14 again, and that is when he locked me out of the house. I 15 called the police and had to wait for th m to show up. And 16 they did eventually show up and they que tinned me as to 17 whether it was my daughter. I said yes. And they 18 questioned him, was it his. And he said no. And they said, 19 you need to give her the child, and they left me leave 20 immediately. 21 Q Raymond also indicated th t in September of 22 2005, just a month or two before you fol s separated 23 finally, that he took over the payment o bills. Is that 24 correct? 25 A For the month of October, we got into a huge 120 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 fight. We went on vacation the end of Se tember, first week of October. We got into a huge fight ove finances and bills. And for the month of October, and November, he did take the responsibility of insuring that ills were paid. Q For what months? A October, and then November I moved out. November, the month I moved out. Q And since then, have you aid your own bills? A Yes, I have. Q Has he paid his own bills. A We have two loans which w both owe money on. One is in my name. The other is in both of our names. He has not given me a penny toward either o e of those loans since December. December was the last p yment he paid half of. I paid everything since then. Q And somewhere in the cour e of his testimony, I believe I heard Raymond indicate that rior to your reconciliation in December of 2004, that you folks, you and he and Hannah, spent about ninety percen of the time in each others company. Is that correct? A Did he say that? Or are ou saying is it correct that that occurred? Q Is it correct that you sp nt ninety percent of your time -- A No. 121 • 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 --you and Hannah with him? A No. Q You were living with your A Yes, I was. i~ Q --that period of time. Yoj Raymond, is that correct? A Yes, I was. Q But it was only on weeken A Correct. Q Cheryl, would you indicat it is that you are so adamant that Raymo ~ part of Hannah's life? A There is many reasons. F'. her biological father, and I don't feel f all. He is very irresponsible towards f'~ care. The entire time we spent instill manners and good behavior in Han constantly, constantly went against ever her. We were in a restaurant, and I tri down and stop bothering the people at th he would give me a smart comment, oh, wh she can stand up, she is not hurting any in front of her. I mean he did that stu I also have great concern r -- were seeing s? to Judge Ebert why should not be rst is he is not is her father at lances, towards her ogether, I tried tc ah, and he thing 1 said to d to get her to sit table behind us, it's the big deal, ~hing. Right there Ef constantly. with the way he 122 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 raised his own children. I personally wo ldn't ever want my daughter going to a boyfriend's house spe ding the night, nor would I want a boyfriend spending the night at her house, which he left occur with his son T~ny. I was against it when he left his son do it, and voicedthat to him, and he did not care what my opinion was. He lis just a very irresponsible, immature person. Q Do you have any concern a out his attitude toward matters sexually? A I do have concern there. In the very beginning of our marriage, prior to our first separation, he was extremely preoccupied with Internet orn, chatting with people. He even met with a couple of pe ple just to discuss sexual relations with them. Against my fishes. He even, when we lived to ether, prior to us separating the second time, after he wou d get out of the shower, he would walk around naked in fr nt of her. And I would say to her, Raymond, you are a man you have parts that she does not have that as a little irl, put something on and don't walk around naked in front f her. He is like it doesn't matter, what's the big deal. I have concern with blata t, I don't know if you want to call it sexuality, being pre ented to a child. At that time she was only three. As she gets older, who knows what she could be privy to if he g is back into the 123 1 2 3 9 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 29 25 porn on the Internet, and she is on the computer, she could be seeing what chat rooms he has been in ~ecause you always get pop up messages from places you have reviously visited. MR. WASS: Thank you. Cross-examine. CROSS-EXAMINATION BY MS. PUGH: Q Good morning, Mrs. Kleema Continuing along the lines of Mr. Holloway's sexual tende Gies, you are aware of all of these things that were spoken bout, both on Wednesday and the things -- A I am having trouble heari g you. Q The things that you testi ied to today and the things that were testified to by Joa ne Berkheimer, you were aware of all those things before yo married Mr. Holloway, correct? A Yes, I was. Well, no. I was privy to the swinging portion of it as far as the Int rnet porn and chat room, no, because I knew nothing of that still after he and I resided together. Q But that was before you w re married that you lived together? A That was while we were li ing together and planning the wedding. The wedding date ad already been set and we were planning the wedding. Q So if you didn't agree with it, you could 129 C~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have called off the wedding, if it bother d you that much? A He promised me he would st p. I believed him and took him at his word. Q Isn't it true that while r. Holloway was in chat rooms, whatever chat rooms they were, that you were there with him typing as well, Mr. Holloway could not type fast enough so you were there with him? A I only sat with Raymond o e time while he was on the computer chatting with people. T e only reason I sat there is because he kept telling me time and time again that he wasn't saying anything, he wasn't giv'ng these people our names, and that he wasn't letting them k ow who we were, and he wasn't really soliciting sex with the e people. So I sat down with him. did not type. I sat down beside him to watch the interac ion between him and these other people. And that was the on y time I ever was privy or a part of that activity. Q Isn't it true also that a 1 of this activity stopped as soon as Mr. Holloway found ou that you were pregnant with Hannah and you began to sp nd more time together with Hannah at home? A It stopped when I moved o t of the house. Now, whether he stopped, I have no idea. But when I separated from him January 19, 2001, I d n't know what continued after I moved out. 125 1 Q Did Hannah -- 2 A -- when he and I started d ting again. 3 Q I'm sorry to interrupt yo u . Was Hannah ever 9 in the room when this was going on? 5 A No. Because while we wer e together at this 6 point, he didn't have a computer with In t rnet access. 7 Q When Hannah was conceived , it would have been 8 2001. She wa s a full term pregnancy? 9 A Say that again? 10 Q Hannah went full term whe you were pregnant 11 with her? 12 A She came early. 13 Q So you would have been -- she would have been 14 conceived in 2001? 15 A July 3. 16 Q And you were also having n intimate 17 relationship with Mr. Holloway -- 18 A No, I was not. 19 Q -- during that time? 20 A No way. He was dating so e body named Stacy 21 at that time. Somebody that he worked w' t h at the Capital 22 City Mall. I was in no way having sex w' t h him at that 23 time. 24 Q But eight days later, on o ur anniversary, 25 you went away with him, didn't you, for o ur anniversary 126 C~ 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 that year? A I don't remember going any here with him, no. Q Are you aware of what your reputation as to promiscuity is on the farm? A Which farm would that be? Q The Deimler farm? A Which Deimler farm? Ther is two Deimler farms. I'm sorry. Q What Paul Deimler thinks f your reputation. A I honestly can't tell you what other people say about me behind my back. Q You have worked at the De artment of Labor and Industry. There are company parties, correct, or get togethers with -- A We have luncheons in the ffice. Q And Christmas parties, th ngs like that? A No. We have luncheons in the office, that is about it. Q At any of your functions t your employer, do you recall the -- I am trying to make th s as polite as possible -- the mouse joke? If you woul like me to repeat it I will. A No, I do recall that joke. That was probably seven years ago, and it was amongst clos friends that I worked with, yes. 127 C~ 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 Do you think it is appropr'ate if you were attacking his actions of more than seven ears ago, that you were unzipping your pants in front of you co-workers? A I only opened the snap a little bit and showed my stomach. That is the only thin I revealed. Raymond was not-even there. Q Okay. A So I don't know how he co ld even give you any information with regard to that. Q That is fine. The co-wor er that you lived with when you separated in January, I be ieve you testified on Wednesday that there was no relations ip sexual relationship between the two of you. A Correct. Q And I believe, if I remem er correctly, you made some reference to Mr. Holloway comi g to the house? A Peeking in the windows. Q At that time when he was ooking in the window, isn't it true that he saw you hu ging this gentleman and groping you and that is what made hi so upset? A I did -- I testified Wedn sday that I was, in fact, hugging him, and he was not gropin me. Q You also made reference t the fact that you believe that Mr. Holloway is not a truth ul person. Correct? 128 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 Yes. Q Who interviewed you for position? A Who interviewed me for my Q Yes. A My supervisor and the Bur time. Q What is that person's nam ? A My Bureau Director's name was Thomas Fisher and my supervisor's name is Steven Sheet . Q Isn't it true that you go the interview questions, you received a copy of the in erview questions before the interview, because you had ne er had any management experience? A No, that is not true. Q Mr. Holloway was in the h spital the day that Hannah was born, correct? A He came in that evening a terwards. Q And you told the nurses t at he was Hannah's father so he could stay there past visit ng hours, which ended at eight o'clock? A No, I did not. Q So they allowed him there until ten o'clock? A T never made any referenc to who he was to anybody in that hospital. current nt position? Director at that 129 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q How many people were you s eeping with when Hannah was conceived? I believe you -- h w many people were you sleeping with when she was conceived? A One. Q You stated at the concili tion that you did not know who the father was. Correct? A No, I did not state that. I said I do know who it was, but I did not want Raymond t know who it was. Q And you stated that it wa a one night stand? A Yes, it was. And the rea on it turned out to be a one night stand is because Raymond as intercepting voice mail messages from my cell phone. Q Okay. You answered the q estion for me. Thank you. Q And you did admit that yo significant, whether it be ninety percen not, but a significant amount of time, y. Mr. Holloway after she was born? Spendii of that nature? A I wouldn't say a signific spend many weekends with him. Q And you knew before you g Holloway wanted to have a child with you reference to him -- A I knew, I knew he liked spent a of your time or u and Hannah, with ig weekends, things ant, but we did married that Mr. You made the yes. 130 C~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did you think that if you kept bringing Hannah around him and he formed a relatio ship with Hannah, that it would evolve into what it has evo ved into, something similar to a father daughter relationship? That never occurred to you? A I guess I never really th ught about it totally. I mean I knew that they would and in some form. Q We talked about on Wednes ay Mr. Holloway's alleged relationship with a woman named etra with the car incident. A Yes. Q Didn't you go to Pittsbur h with somebody named Mike two weeks before that? A No, I did not. Q Did you after the inciden with Petra want to end the relationship with the -- A I'm sorry. I can't hear ou. Q You were in a relationshi with a gentleman named Mike after the incident with Petra A I had a friend who lived 'n the Pittsburgh area that I saw on occasion when I was o t there on a business trip. But I was never in a rel tionship with him until after Raymond and I separated. Q Who watches Hannah? A My sister, Bonnie. 131 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 Q And that is on the dairy A The one in Newburg, yes. Q How many cows are on that A 34. Q When you help out in the that Hannah is sleeping? A Usually at five o'clock i Q And that your fourteen ye A Who is in the very next b Q -- who is also sleeping a A No, he gets up for school Q -- at five o'clock in the A No, but he gets up probab of six. Q So there are two sleeping at five o'clock in the morning while all away from the home? A It is a very responsible the bedroom next to the two girls, yes. Q Sleeping? A Yeah. Q I am going to go back to about the daycare center, the Hildebrand that I told Mr. Holloway to go to the da A No. 132 rm, correct? you stated the morning. old nephew -- room, yes. morning? y about a quarter minors in the home of the adults are een year old in 'hat you stated Were you aware care center? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Z2 23 24 25 Q He was listed as the step A No, he was not. Q Did you -- the daycar e ce that he was, and that is why I bring tha A I did n ot list him as ste myself as mo ther, and I was the only par forms. Q Was there any other persor get him in an emergency? A There were multiple other emergency. Q Was Mr. Holloway one of t ose people? A Up until one point, yes, ntil I had his name removed from the list. That is when I s parated from him in November. In November I had his name re owed from the list. Q On one of those occasions where you mentioned where Mr. Holloway went to the daycare c nter, he brought flowers and a stuffed animal to the dayc re center. A Yeah. Q And can you remind me wha you did with the stuffed animal? A She took it home. Q And what happened to it a ter that? A It is at the house somewh re with the millions of others she has. correct? indicated to me up. ather. I listed t listed on the allowed to come individuals in an 133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 29 25 Q Isn't it true that you thr w it away while she was sleeping? A No. Q Hannah refers to Paul Dei ter as daddy, correct? A Yes. Q You never stop her from c lling him daddy? A I tried to explain to her that he was her uncle, but sh e could never quite underst nd. Q Is it possible that she r fers to him as daddy because Hannah hears Holly, your ni ece, call him daddy? Is th at a possibility? A If you are referring tom niece Haley. Q Haley, I'm sorry. A I guess it is possible. Q bo you have furniture for Hannah? A Do I have furniture for? Q For Hannah at your sister s home? A Yeah. Q Who purchased the furnitu e? A The bed, my brother, my - the convertible bed, it was a crib to a day bed that goe to a full bed, my brother made for her. Q Is that the only furnitur that you purchased? 139 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 A There are two dressers, which I used gift certificates that I got from my baby show r from work to purchase the dressers. Q Isn't it true that when a apartment that you and Raymond had rented, everything inside was being sold by the sheriff, that your sister Bonnie claimed everything as being hers? A No, that is not true. Q Can I approach the witnes and show her something? THE COURT: Mr. Wass, hav you seen this? MR. WASS: No. THE COURT: Why don't you describe for the record what you are looking at for her, nless you are going to admit it as an exhibit? MS. PUGH: This is a prop rty claim for the Cumberland County Courthouse, the writ n tuber is OS-6152. It is a property claim signed by Bonnie eimler, Cheryl Kleeman's sister, listing the items that she mentioned, namely the dressers and the bed, as clai ed by Bonnie Deimler and not by Cheryl Kleeman to avo'd sheriff sale. BY MS. PUGH: Q Do you recall ever seeing this? A Which ones are you referring to? Q It is actually on the ne t page. The -- 135 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 A The dresser is my niece Ho ly's, which is in her bedroom, which is a six drawer dresse There is two other dressers in that bedroom which are annah's. Now, I will admit that the bed my brother made is on there. THE COURT: This is a pro erty claim against the sister? THE WITNESS: No, it is against Raymond and myself. MS. PUGH: Right, correct BY MS. PUGH: Q Were you aware that Bonni had signed this piece of paper claiming that property as hers when it was not, in fact, hers? A Yes. Q Can you tell me why you 1 ed to the Court? A Because the item is what would consider to be a family heirloom because my brother ut his heart and soul into making that one piece of furni ure for us, and we were advised by an individual that we sh uld do that. Q That you should lie, you ere advised by someone that you should lie? A Yes. Q You mentioned there has b en quite a few instances where there have been violence between you and Mr. Holloway. 136 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 A Yes. Q Have you ever filed for a Protection from Abuse order? A I tried. And I was, I wa -- they determined that I could not qualify for one. Q Because there were no inj ries? A Yes. Q You also testified that M Holloway would not sign div orce papers? A Yes. Q When were these divorce p pers served? A I don't know. Q To my knowledge, a divorc has just recently been filed, I believe on March 30th. A I don't know the exact da e. Q Do you know what he refus d to sign? Do you know? I'm n ot sure that -- A I told him he would be ge ting divorce papers and that I w ould appreciate it if he wou d sign it. He said no, absolute ly not, I am going to stay rried to you for another two years whether you like it or not. Q Okay. Just -- your atto ney can explain that situation to you, if you would like. I wasn't actually signing the divorce papers. Do you have a child supp rt claim against 137 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 l _J anybody -- A No, I do not. Q -- right now? But you sta financial support from somebody would be ] A If there would be another going to be partial or has any right to p. daughter, then I feel it would be that in. responsibility also to financially suppor am, have the sole and full custody of my ~ fully responsible and prepared to take ca financial needs, which I have been doing Q Do you use corporal punish A Excuse me? Q Corporal? A What do you mean by corpor THE COURT: Spanking, you physically. THE WITNESS: I have sma bottom on occasion, yes. BY MS. PUGH: Q Is it that that Mr. Holl with? A Mr. Holloway doesn't agree discipline. Q There has been lots of men 138 ed earlier that elpful to you. ndividual who was rtially raise my ividual's that child. If I aughter, then I am e of all her or four years. ent with Hannah? 1 punishment? now, hit the child d her on the iy doesn't agree with any kind of :ion about Mr. n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 la 19 20 21 22 23 24 25 Holloway's lack of financial responsibili y. Can you help me understand how that would make him not a good father? A It is not so much the amou t of money, it is the fact that he has held probably thirty or forty jobs and he is forty years old, he has never been nywhere longer than two years. He has been fired from a most every single job he has ever had. Q But he has been working, c rrect? A I think that shows his irr sponsibility. Q But he has been working, h hasn't been homeless that you know of ever? A Well, if you count the fac that I supported him and I paid the majority of his bills hen we were together, and he has lived with his paren s for a year. Q He is obviously not starvi g, he hasn't been homeless? A I guess not. Q When Hannah did call -- on when Hannah did call Mr. Holloway daddy, c response to that? A I don't know that I ever s< got much grief from Raymond because Hannak referred to my brother-in-law, Paul, as he every time Hannah called him daddy, he wot give me the third degree because she is cz those occasions 'hat was your id anything. I continually r daddy. And 1d go home and 11ing somebody 139 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 else daddy. And that he drilled it into er, you can call me daddy, you can call me daddy, Hannah, an't I be your daddy. To the point where the child felt she had to start calling him daddy just so he would get of her back. MS. PUGH: Can I approach he witness? THE COURT: Yes. MS. PUGH: These are two g reeting cards, one is a birthday card and one is a Father's ay card. BY MS. PUGH: Q Have you seen these cards? A Can I see them? Q Oh, absolutely. A Yes, I purchased them. Q Can you read them, please? A Sure . The one says from our little girl. My heart belongs to you, daddy. Happy bi rthday. And Hannah's scribble o n it. Q Who signed Hannah's name n the bottom? A I wr ote it. Q Can you read the next one, please? A This one says from daddy' big girl, the bigger he grows, the more I know I'm as lucky as I can be, cause the luckiest daddy in all the worl is the one that belongs to me. Lots of love. Happy Fat er's Day. And I wrote Hannah and Hannah scribbled. 140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: What year are hose from? MS. PUGH: The Father's Da card is 2003. And the birthday card is 2004. THE WITNESS: They are bot~ from the last year. BY MS. PUGH: Q If it was your intention to never have Mr. Holloway act in any capacity as a father o Hannah, what is the purpose of giving him cards, reinforcing the role that he believed he played in Hannah's life? A There were two reasons. ne, it is hard to find a card from a little child that says for someone who is there and pretends to be my daddy or acts as a daddy. And the other reason is because Raymond rode y back day in and day out about how he wanted Hannah to call him daddy. And if I didn't buy him cards and say they w re from Hannah, he would give me all kinds of grief. You c n't even buy me a card. I didn't get him a birthd+ year and he threw a royal fit, you could buy one and say it was from Hannah. Thal you. So I bought those. Q They do sell generic Kapp A And I bought those to app Believe me, you have never been married y card the other 't even go out and is just so rude of birthday cards? ase Raymond. o him, you don't 141 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 know what it is like. Q So you don't think you were reinforcing it at all by buying these cards for possibly co fusing Hannah? A Hannah didn't know what t ey said. She was three years old. Q You didn't read them to h r? A Probably not. She probably didn't even pick them out. I probably went to the store and just picked them off the shelf and went. MS. PUGH: I have no furt er questions at this time. THE COURT: Redirect. REDIRECT EXAMINAT BY MR. WASS: Q The only question I have of cross-examination, there was some cone willingness to accept assistance financi you indicated that you had financial cap And I never did ask, in your employment, salary? s during the course entary as to your lly for Hannah, and bility of your own. what is your A I make -- I don't remember} the exact, like 43,000 a year. Q And that is, of course, position after sixteen years at the Cc A Yes. in a supervisory ealth. 142 r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WASS: That is all. Thank you. THE COURT: Ma'am, with r Bard to your divorce, there was testimony that it was filed in March of this year. You are proceeding with a divorce? THE WITNESS: Yes. THE COURT: Is it your fu 1 intention at this time to obtain that divorce from this pe son? THE WITNESS: Yes. THE COURT: Thank you. A y other questions? MS. PUGH: I just have on quick question. THE COURT: Please. RECROSS-EXAMINATION BY MS. PUGH: Q Isn't it true you haven't paid your personal taxes since 1992? A No, it is not true. THE COURT: Thank you, ma am. You may step down. Mr. Wass, do you have any other w'tnesses? MR. WASS: Your Honor, no I have no further questions. But I would inform the Court that on March 30th, I did indeed file a divorce complaint on behalf of my client here in the Cumberland County Courthouse Unfortunately, the compla nt, because there is some dictation that I gave my secreta y regarding this for purposes of acceptance of service, t at complaint 193 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 happens at the moment to be sitting in m can't give you the term and number. But it is filed in this court. I did send a and requested acceptance of service. I back yet. MS. PUGH: The docket nun MR. WASS: Thank you. THE COURT: Okay. Thank anything further, sir? MR. WASS: Yes. We have hree witnesses. They will all be brief, Your Honor. THE COURT: Please. Whereupon, BRYAN KLEEMAN having been duly sworn, testifies DIRECT EXAMINATION BY MR. WASS: Q Would you give us your nai A Bryan Kleeman. Q And where do you live, Mr A New Cumberland. Q Street address? A 413 Fourth Street. Q And are you related to Ch seated to my left? office, and I represent to you opy to counsel, vent received it is 06-1868. Do you have as follows: e, please? Kleeman? >ryl Kleeman, who is 144 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 She is my sister. Q Mr. Kleeman, there has bee that has already been presented in this c period of time you and your sister, as ad together in a shared residence. Is that A Yes. Q When was it that the two c a residence? A In 2001, in October. Q October, okay. And how do it was October? A Well, I know when we left our anniversary date as far as our lease year. 4 Halloween? A 4 A 4 A Shiremanstown. 4 A 4 No, no, when you moved in, It was on Halloween day. Is that why you remember Yes. Okay. What was that addrf I think it was 11 Railroa~ And you lived there for h One year. And Cheryl resided there 145 some testimony e, that for a ts, resided rrect? you first shared you remember that there, we left on being up for a was it around t? ass? l Avenue, long? pith you? 1 2 3 9 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 29 25 A Yes. Q Was she separated from he hu sband during that period of time? A Yes. Q And was it during that pe iod of time that she gave birth to her daughter, Hannah? A Yes. Q And then I think you said one year after you moved to Shiremanstown, you moved to ano her location? A Yeah, I bought a house. Q Were you married at the t' me and separated? A No, I was divorced. Q You were divorced. A I got a divorce shortly a ter we moved into Shiremanstown. Q So by the time you bought divorced? A Yes. Q Where did you buy the hoi A In New Cumberland, where Q So you still own that sai A Yes. Q When you moved to the pr. Cumberland, did Cheryl move there with A Yes. a house, you were ,e~ live now. house? erty in New u? 146 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 C~ 4 A 4 A Q you and Cheryl? And did she pay rent? She helped with bills, ye h. Was she still separated f on Yes. her husband? And who else resided in t at household with A Hannah. Q Over the course of - - how three -- how many years did you and your common house hold? A Three years. Q And, for the better part years, Hanna h was a part of that ho useho A Yes. Q So I suspect you had oppo your sister in company with Hannah, is t statement? A Yeah. Q How would you describe yo capabilities as a mother to Hannah? A She was -- she is very ca good mother to her. Q And how did Hannah, as yo those early years, react to her mother? of love or not? many years did the sister reside in a f those three d too? unity to observe t a correct sister's le. She is a u observed it in Was there a showing 147 1 A Yeah. I mean as a normal 2 loves her mom. 3 Q In fact, while you folks N 4 common househo ld, Cheryl maintained somew 5 life along with you, because both of you 6 correct? 7 A Yes. 8 Q Is that a regular bowling 9 folks are in? 10 A Yeah, she got me into it, 11 summer I was i n Shiremanstown. We joinec 12 And then the f ollowing year we joined the 13 then that fall she got me into the winter 14 Q So you are both active in 15 A Yeah. 16 Q In those years, Hannah wa: 17 even walking, became one or two years of 18 happened with Hannah on those evenings wk 19 bowling? ZO A She usually went with us. 21 Q So Cheryl would take Hann 22 she went? 23 A Oh, yeah. Zq Q Is that a fair statement? 25 A Yeah. kid, you know, ere together in the hat of a social bowl, isn't that league that you I guess the first a summer league. summer league, and league. the bowling league? very young, wasn't age. What, what yen you folks went with her wherever 148 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 When Cheryl was actively n the lane bowling, who took care of Hannah then? A Either me or my other sis er was on the team or one of Cheryl's friends. Q Would you say they were i separable, the two of them? A Yeah. Q Do you know Raymond Hollo ay? A Yes. Q Did he show up from time o time at one of the households where you and Cheryl resi ed? A Yes. Q Did he -- did you observe him at all in the company of Hannah? A Yeah. 0 How did he deal with Hann h, how did he react to Hannah? A really. Q A Q discipline? A Q I don't know. He was lik~ a playmate to her What do you mean by that? Well, they would just car y on, play. Did he discipline her whe she needed I never seen him Never? her. 199 r~ u 1 A No. 2 Q Did you ever see your sis er discipline 3 Hannah when she required discipline? 4 A Yes. 5 Q Did you ever see that occ r in the company of 6 Mr. Holloway? ~ A Yes. 8 Q What was Mr. Holloway's r action to 9 discipline by Cheryl? 10 A He would just tell Hannah you know, that is 11 okay, you don 't worry about it, or just et her basically do 12 whatever she wanted. 13 MR. WASS: Thank you. Cr ss-examine. lq CROSS-EXAMINATION 15 BY MS. PUGH: 16 Q In the house in New Cumbe land, isn't it true 17 that you had no dining room table and Ha nah sat on the 18 floor to eat dinner? 19 A No. 20 Q You didn't have a pool to le in your dining 21 room? 22 A It is in the living room. 23 Q Is it okay for me to assu e you do not agree 24 with the way that Mr. Holloway disciplin s Hannah? 25 A I never seen him discipli ne her. 150 1 Q The lack of discipline, 2 is inappropri ate? 3 A Yes. 4 Q Did you discipline your c 5 A Yes. 6 Q How many children do you 7 A Two. 8 Q How many beers do you the 9 beverages do you drink in a night? 10 A In a night? 11 Q Yes. 12 A Depends on the night. 13 Q Was Hannah obviously thex 14 drinking a si x pack, ten beers perhaps? 15 A I don't drink that much. 16 Q But she was around when y 17 A Yeah. 18 Q When you got your driving 19 citation, was Hannah in the house at tha 20 you? 21 A I don't think -- 22 THE COURT: Do you rememb 23 THE WITNESS: I am trying 24 was. Yeah, I guess she was. I'm not su 25 BY MS. PUGH: you believe that ildren? ve? or alcoholic while you were were drinking? under the influence time living with r when it was? to think of when it 151 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 When your son was in a tra he on his way from your home to somewhere coming back home to your house? A I don't know for sure. I way home. Q Did you discipline him wr A Yeah. Q And he was tragically ki] driving under the influence? A Yes. Q So the amount of discipl_ tragedy, correct? A I don't think anything c< Q Did you know that Mr. Ho: other children? A Yeah. Q And they are all okay, a: concerned? A I don't know them. MS. PUGH: Okay, I have n further questions. THE COURT: Redirect? MR. WASS: No questions. THE COURT: Sir, you may step down. Please call your next witness. You can remain 'n the courtroom now if you would like. It's up to you. gic accident, was else or was he think he was on his he was a child? correct, while can't prevent had three far as you are 152 r~ u 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 Whereupon, BONNIE DEIMLER having been duly sworn, testifie as follows: DIRECT EXAMINATION BY MR. WASS: Q Just state your name, ple se? A Bonnie Deimler. Q And where do you reside, s. Deimler? A 319 Turnpike Road in Newb rg, Pennsylvania. Q Cumberland County? A Yes. Q And are you married? A Yes. Q To whom are you married? A Bryan Deimler. Q And do you have children? A Yes, two. Q And their names and ages, please? A Charles Deimler is fourte n. And Holly Deimler is six. Q A 4 A 4 And where does -- does Ch rles attend school? Yes. Shippensburg High S hool. What grade is he in? Ninth grade. How about your daughter, Holly? 153 • 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 She is in kindergarten, Elementary. Q I believe it has been ind upon and operate a dairy farm. A That is correct. Q How many head of cows do A Milking cows, 31 milking ~ heffers and stuff like that, probably 40 like that. Q And a bull or two? A Yeah, there is some bulls there. Q Who lives in your househo d right now besides your husband and your two children? A My sister, Cheryl, and my niece, Hannah. Q How long has Cheryl and h r daughter, Hannah, been residing with you? A Day before Thanksgiving o 2005. November, end of November. Q And why, why is it that t ey have come to live with you? A She was leaving her situa ion, her marriage, and needed a place to go. She had two o tions available to her to financially accommodate her. I v lunteered our place. My husband and I said that was f'ne. And my other sister, Carol, had offered their place, residence that Grayson ted that you live ou have? ows. Calves and or 50, something 154 • 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 they, that they owned, but don't live at. She stayed at mine becaus I thought it would be better being around people for what s e was going through, she wouldn't be alone, her and annah. So I thought it would be better for her to st y with us with support. Q I gather from what you h< operate the dairy farm? A I run it. Q You run it. A My husband drives tractor Q Okay. A He is gone Sunday througt I have been running it for -- '95 we mov for the first year or so. And then fina do it with both of us. So he has had nL in income and I have run the dairy farm. Q I see. A He helps when he is there all of it. said, do you help and trailer. Friday. I run it. d there. He helped cially we couldn't Brous jobs to bring but I do mostly Q So you are a farmer and a stay at home mom, is that basically it? A Yes. Q Since you sister, Cheryl, has been residing with you, has she shared the chores with you and helped you 155 r~ u 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 out? A Yeah. She helps when she is around, if she wants to help. She is learning it slowl but I do it. I have been doing it for years. My son helps me too. Q That is the fourteen year old? A Yes. Q Who is -- we heard some t stimony earlier that at one point in time Hannah had bee in a daycare situation over in Harrisburg. A Yes. Q Were you aware of that? A Yes. Q Is Hannah in the daycare ny longer? A No, I watch her. Q Do you know why Hannah is not in the daycare any longer? A Several incidences of Mr. Holloway trying to get access to her at the daycare without my sister's permission. She was worried about that nd wanted her in a safe place where he couldn't have access to her. And I volunteered to watch her. Q Since when have you been Baling with Hannah on a day-to-day basis? A I'd have to guess. February of 2006, I'm assuming that is about close. 156 1 Q Do you know Mr. Holloway? 2 A Yes. 3 Q How long have you known h ' m? 9 A Pretty much as long as I ave known my 5 husband. He was married to my husband's sister when I met 6 my husband. So since -- 7 Q Oh, your husband is the b other of Joanne? 8 A Yes. 9 Q I see. Okay. So you hav known him since 10 prior to 1995? 11 A Since '88, 1988. 12 Q 1988. Have you had occas on to know of the 13 conduct of Mr. Holloway with regard to h ' s capability as a 19 pparent toward his older sons? 15 A Yes. I mean limited, on he farm I had seen 16 them. Family talk, what is going on. S uff like that. 17 They have been at my house when they wer little, not a 18 whole lot, but, you know, on occasion. 19 Q Do you know the former wi e, Joanne? 20 A Yes. 21 Q Are you aware of any acti ity on the part of 22 Raymond of a violent nature? 23 A Hearsay, stuff I have hea d through the 24 family. 25 Q We don't want hearsay. 157 u 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 A Specifically -- not anything that I can think of specifically. Q Did you offer assistance to Cheryl at the time that she separated from Raymond the ifirst time? A Yes. Q What kind of assistance d'd you offer? A Helping her move. Q Who helped her move? A Myself, my husband, my si ter, Carol, she -- Cheryl was there, of course, and I belie e that was it the one day. Q Did anything occur on tha day? A That day we were schedule to be there in the morning. They had made arrangements for her to come get the rest of her stuff. Q Who is they? A Cheryl and Ray. And we s owed up and they had gotten into an argument in the house We were all in the house, he wanted her to leave. And he said, I was there just to get my stuff, you know, yo set this up, we are supposed to get my stuff. He wanted her out from so ething that had happened between them or something. He as forcefully trying to shove her out of the house and she was trying to just get her stuff, like she was suppose to, and leave. 158 1 2 3 4 5 6 7 S 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 And then he called 911 because he wanted ~er out of his house: Q And the police arrived? A The police arrived. Q And you got Cheryl's thin s and left? A Yes, they said just go in , for her to stay outside, and then just us go in and get 11 her stuff. Q And you did? A And then we left. Q You are the older sister, aren't you? A One of them, yeah. Q Well, how much older than Cheryl? A A year. Q One year older. So you h ve known Cheryl all of your life? A Yes. Q And now you have been in close relationship with Cheryl a nd Hannah within your house old. Can you tell the Court wha t kind of mother Cheryl has been to Hannah in your observat ion? A She is very dedicated to er daughter. Loving. She gives her her time. You kn w, works all day and comes home, and she will play games ith her. Even though she is tired and exhausted, she w'll still sit down and, you know, do things with her. She 's like a good role 159 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 model, instills values, you know. She to ches her to say excuse me, please, thank you. Q Does she discipline -- A She disciplines her when he needs to give her time outs, stuff like that. Q Okay. A She is very good, a very ood mother. Q What is your husband's na e? A Bryan. THE COURT: One moment. lease continue. Sorry. BY MR. WASS: Q What, what does Hannah ca 1 your husband? A She calls him Bryan, Uncl Bryan, daddy, pappy. I think that is about it. MR. WASS: Cross-examine. CROSS-EXAMINATION BY MS. PUGH: Q You stated that you run t e dairy farm. A Yes. Q And you also baby-sit for Hannah during the day? A Yes. Q And your other children re in school during the day? Your fourteen year old is at school all day? 160 • 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q And your husband is a truck driver so he is not home? A Yes. Q Where is Hannah while you are -- I'm not familiar with farming -- while you are doing your farm chores? While you are doing things on t e farm, where is Hannah? A In the morning she is at he house with Charles, my son, and my daughter, and my sister, And at night she goes to the barn with me and m kids. Q During the day, whe re is annah? A With me. Q What are you doing during the day on the farm? A Check the cows sometimes, that is going to have a calf. Fill Ovate Q And you bring Hannah with that? if there is a cow troughs up. you when you do A Yeah. Q Isn't it true that you tr veled on the tractor with Hannah on the tractor with ou? A Yeah, sometimes. Q Is there a seat belt on t e tractor? A No tractor has seat belts. 161 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 Q Where does Hannah sit? A On my lap. Or it is an enclosed cab so she can stand inside, she can't fall out beta se it is all -- it has doors on it that you can stand in there and you can't fall out. Q So you think it is safe f r Hannah to be standing up in a tractor? A Yeah. I have had two kid that I have raised doing it on occasion. If it wasn't safe, I wouldn't do it. Q About two years ago, you, Cheryl, I believe just your daughter, Holly, and Mr. Hollo ay went to the beach on a vacation, is that correct? A Yes. Q Was your son there as wel ? A Two years ago? Q Yeah. A He went with me last year I don't remember that he was there two years ago. We go very year. So sometimes they go with, sometimes they s ay at home with their father. I would have to look back and see which year it was. Q Okay. When you were on you went to the Dover speedway to see a A That is what we go every Q And Mr. Holloway baby-sa cation that year, ace? year for. your child, at 162 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 la 19 20 21 22 23 24 25 least to my knowledge, your child Holly a~ well as Hannah, correct? A Yes. Q And he was safe enough at that time for you to leave your child with when you were at a race? It was okay? A Yeah. We were only gone or not even a whole day. Just from morning until four, five o'clock in the afternoon, six o'clock maybe. Q Didn't you tell Hannah th t if she referred to Mr. Holloway as daddy, or made any re erence of that nature, that you would hit her with a sp on? A No, that is a lie. Q Do you beat Holly with a elt? A No. Q Other than Mr. Holloway's admitted lack of discipline, is he a good father, for lac of a better term, toward Hannah? A My opinion, no. Q Have you ever seen him, o her than that one occasion, that occasion where you helped Cheryl move, do you recall what I am talking about, that you helped Cheryl move? A Yes. Q That is the only time you said that you have seen him be violent? 163 • 1 A In the presence of me, ye s . 2 Q That day that Mr. Hollowa asked Cheryl to 3 Leave, were you ,aware that that was the d y after Mr. 4 Holloway witnessed her with her co-worke r , George, I believe 5 his name is, in what he perceived to be a n intimate 6 interaction? 7 A I was not aware of it the no. She lived 8 with him. She lived with George. 9 Q So why was she moving out of -- 10 A Because she got most of h r stuff, but she 11 had some stuff there and they set up an greement, a time to 12 go back and get the remaining of her stu f. 13 Q Have you ever disciplined Hannah? 14 A Yes, I have grounded her nd made her sit. 15 Q Is that as far as it went 16 A That is it. That is what I do to my own 17 daughter. Cartoons or grounding. They r e not allowed to 18 watch cartoons or they have to sit on a h air for time out. 19 MS. PUGH: I have no furt er questions. 20 MR. WASS: No further que t ions. 21 THE COURT: Ma'am, you ma step down. 22 MS. PUGH: Actually there i s one thing, I'm 23 sorry. 24 THE COURT: Quite all rig t . 25 MS. PUGH: May I approach, Your Honor? 164 • 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 THE COURT: You may. BY MS. PUGH: Q This is the same document I referred to earlier, the property claim. Do you recall signing the property claim writ on 05-6152, Lois Wit er vs Cheryl and Raymond? A Yes. Q And all of this property 's yours? A Yes. Q Cheryl testified earlier hat the bed that her -- your brother made was hers. Is t at correct? A Not hers, Hannah's, hers, whatever, yeah. Q Is there -- all of the pr perty that is listed on th is is property that you purc ased? A No. Q Is any of it -- A Some of it was given. Q Is any of it Cheryl's pro erty? A I would have to go over i again. Q Can do you that, please? Is any of the property Mr Kleeman's? A There was a bed on there hat 'was Hannah's. Q And, knowing that, you sti ll signed that all the property was yours? A It was suggested that I co uld do that at the 165 C~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time I signed it. So I did. Q It was suggested that you legal document so Cheryl could keep her A Yeah. Q And you did so? A Yes. MS. PUGH: No further que REDIRECT EXAMINATION BY MR. WASS: lie in a Y? lions. Q Who suggested that to you. A The clerk at the Sheriff' Department. THE COURT: You may step own, ma'am. may remain in the courtroom if you would care to. Cal l your next witness, p ease. Whereupon, PAUL STANLEY DEIMLER having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. WASS: Q Will you state your name, please? A Paul Stanley Deimler. Q And where do you live, si ? A 4875 Deimler Lane, Enola. Q Keep your voice up so we a okay? That is better. You all hear you, 166 1 A All right. 2 Q Are you married? 3 A Yes. 9 Q What is the name of your w ife? 5 A Karol. 6 Q Spell -- 7 A K-a-r-o-1. 8 Q Spelled with a K? 9 A Yes. 10 Q Are you related to -- 11 A That is my sister -- 12 Q -- Cheryl Kleeman? 13 A Yes. 14 Q She is what? 15 A My sister-in-law. 16 Q Karol is her sister? 17 A Correct. 18 Q What do you do for a livi g, sir? 19 A I am a self-employed dair farmer. 20 Q How big is your farm? 21 A 4Je only own about 180, fa m about 800. 22 Q Do you really? 23 A Yeah. 29 Q How long have you known C eryl? 25 A About seventeen, eighteen years. 167 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 And you know Hannah, her A Yes. Q You have known Hannah -- A Since she was born. Q Since she was born. Do v~ Holloway? A Yes. Q How do you know Mr. Hollo ay? A He was married to my sist r before he was married to her. Q Joanne is your sister? A Yes, that is correct. Q Have you ever had occasio -- well, strike that. When Joanne was married to Mr. Ho loway, where did they reside? A Right down, down the farm lane past us. Q So on the same property b sically where you reside? A Yes. Q So you got to know Raymon Holloway pretty well? A Yes. Q Did you ever observe any ccasions of physical violence on the part of Mr. Hol oway? A Yes, in different ways, es. ter? know Mr. 168 • 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 For instance? A Well, when him and my sist r were splitting up, I knew he busted up the house a lot, tuff like that. Q Was there a time when you had to step in and insist that he take -- A We11, actually me and my rothers and my nephew, a bunch of us had to go down quite a few times. Q Was there ever a time you had to step in and ask Mr. Holloway to take your sister to he hospital? A Yes, yes, there was. Q What was that all about? A That was a case of where hey got into a fight at a drive-in, which I wasn't ther at the time, and -- I mean at the races, not the drive-in And which I got a call from a friend of mine who said what you know, he had done to her and stuff. When I got there, he was oming out the road, I stopped him. And he said, no, nothing happened. Well, then he did admit it. I made him take her to th hospital because she said she needed to go to the hospita And he was worried he was going to get arrested. I said, tell them whatever you have to tell them, but you ave to take her, that is all there is to it. Which he di . Q Was she injured. 169 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I don't know what the inju ies were. What was wrong with her, I couldn't tell you. I didn't ask. I just know she was crying and said she wan ed to qo. Q Have you had occasion to have Cheryl and Hannah within your household? A Yeah, I am the baby sitte for the first two years of her life. Q Before the daycare starte ? A Yes, yes. She was -- yea she was over three when I quit. Q So you and your -- A My wife, yes. Q Served as the baby sitter ? A Yes. Q What, what does -- what d d Hannah call you back then when she started -- A Since she talks, she call d me dad. She to this day thinks I'm her dad. Q Does Cheryl try to correc that? A At first Cheryl tried to top her when she was just little. And then she just left it go. Her mom and all them said she don't have a father, s you know, it is not hurting nothing, and I was like a da to her. I mean I have a little girl that is only a year o der than her. And she is -- she was with me every day, all the time. 170 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 During those three years p rticularly, but even up until now, you would have had som occasion, I expect, to observe Cheryl interact with h r daughter, Hannah? A Yes. Q How would you describe Cheryl as a mother toward that young girl? A A very good mother. I me n Hannah is what is important in her life. It is the only t ing in her Life. I mean she is always good to her. Makes s re she always has everything. You know, what a mother is upposed to do. MR. WASS: Cross-examine. CROSS-EXAMINATION BY MS. PUGH: Q When, during the three ye rs that you and your wife, Karol, baby-sat -- A Yes. Q -- for Hannah, where did s. Kleeman live at that time? A Well, there was different places. She lived with her brother I think in the beginnin I couldn't tell you how many different places. But one as with her brother. At the end is when I think the e two I guess started to see each other again. Q Were you aware that beca se Mr. Holloway's 171 1 residence was closer to where you and you wife reside, that 2 Cheryl spent a decent amount of time with Mr. Holloway 3 because it was closer to dropping Hannah ff? 4 A I knew once in awhile she id. I wouldn't 5 say a substantial amount of time, no, not that I am aware. 6 Q Before Mr. Holloway and Ms. Kleeman married 7 one another, you knew Mr. Holloway? 8 A Yes, yes. 9 Q And you were friendly wit him? 10 A Yeah. I am still friends with him today. I 11 will be friends with him tomorrow. 12 Q Was there any discussion etween the two of 13 you regarding the promiscuous activities of Ms. Kleeman 19 while you were with Ray? Did you ever d'scuss her sexual 15 life with Mr. Holloway before they were arried? 16 A Not, not that I can recal In specifics? I 17 don't know what you are talking about. 18 Q Were there instances, not that you didn't say 19 it in these words, but basically that sh was easy, were 20 there instances where you said that? 21 A Me? 2Z Q Yes. 23 A 2 wouldn't know if she is easy. I mean -- 24 Q Have you ever seen Mr. Holloway be violent 25 toward Ms. Kleeman? 172 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 A No. That I have seen, no. Q Yeah. Toward Hannah? A Toward Hannah? Q Yes. A No. much, to be honest MS. THE MR. THE THE THE if you choose. Have I heard? But I never seen him with Hannah that with you. PUGH: I have no furt er questions. COURT: Any redirect? WASS: No. COURT: Sir, you may tep down. WITNESS: Thank you. COURT: You may remai in the courtroom MR. WASS: We rest, Your THE COURT: Any rebuttal, MS. PUGH: No. THE COURT: Summations? (Counsels arguments off f. THE COURT: I am going to opportunity to provide the Court with pry Fact and Conclusions of Law. I am basic< your claim, Ms. Pugh, for your client is parentis is the key here. MS. PUGH: Yes. THE COURT: I really want Honor. ma'am? tart with Mr. Wass. ie record.) give the parties an posed Findings of illy -- I believe that he is in loco these briefs to 173 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 address, you know, the sufficiency of the degree in which he has acted in loco parentis. The cases I ave looked at, you know, it is talking about an ongoing, cle r relationship over a long term. And anybody who can address at all, I am interested -- obviously the key directive of the law is what is in the best interests of the child. nd we are talking about a young lady, who I believe is fou or five now -- just had a birthday, four. I am really sincerely, th's is clearly that Mr. Holloway is a third party in the eye of the law. And she is clearly the natural mother. I am looking for any type of case law, citation with regard t you know, what is in the best interest of the child. Is it better to sever the relationship with a third party at this point or, you know, hould it continue on? Again, looking at the best interest of the child. Is that clear? MR. WASS: Yes. MS. PUGH: I am not sure ou are going to even find any. But that -- THE COURT: But that woul be most helpful in making this decision. (Whereupon, the following Order was entered.) AND NOW, this 5th day of May, 2006, upon 179 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 consideration of the complaint of the Pla'ntiff for custody, the Defendant's response thereto, and, of er hearing, it is now ORDERED AND DIRECTED that the parties in this case shall file Proposed Findings of Fact and Conclusions of Law with legal briefs in support of their findings on or before the close of business on May 19, 2006. Pending further Order of Court legal and physical custody of the hild, Hannah Rose Kleeman, will rest exclusively with the atural mother. By the Court, THE COURT: We will stand in recess. (Whereupon, the proceedin was concluded at 12:15 p.m. 175 1 2 3 9 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 z0 21 22 23 24 25 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the no es taken by me on the above cause, and that this is a corr ct transcript of same. Mari~e_T. F rley, Official C urt F The foregoing record of t e proceedings on the hearing of the within matter is here y approved and directed to be filed. $ II Date M. L. F Ninth 176 t, Jr., quire cial Dist ict j ~r,. V1iVh'AlJ,u~lt~3d zz .E ~d ~ ~ Ana goaa 1~l~l0iVv^HJ.Ui3d 3Ki ~0 3~Eia6{~"tId Raymond Holloway IN THE SUPERIOR COURT . OF PENNSYLVANIA . (C.P. Cumberland County v• No. 06-668) No. 1238 MDA 2006 Cheryl Kleeman Filed: August l5 2006 The motion of appellant for expedited review and advancement is GRANTED as follows: As this appeal involves denial of a custody petition, this matter will proceed in this Court as a Family Fast Track appeal. Per Curiam TRUE CQPY FROM RECORD Attest: UG Y 5 2Q06 c Prothonotary up~ri~ Court of PA -Middle District v+ -v t'r rr ~ ~'~, G~``" ~ ri '~ ~ ~ ta,C7 ~'~~; ~~ y {~ ~V -a Ott RAYMOND HOLLOWAY, Plaintiff V. CHERYL KLEEMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-668 CIVIL TERM IN CUSTODY IN RE: OPINION PURSUANT TO PA. RA.P. 1925 Ebert, J., August 18, 2006. In this custody issue, Appellant Raymond Holloway has filed an appeal to the Superior Court of Pennsylvania following an order denying him partial custody of Hannah Rose Kleeman, daughter of Plaintiff s wife, Cheryl Kleeman. Appellant's bases of appeal are as follows: (1) he has sufficient in loco parentis standing to petition for custody as a third-party and, (2) it is in the best interest of the child that he be allotted custody.l This opinion in support of the order denying partial custody is written pursuant to Pa. R.A.P. 1925(a). STATEMENT OF FACTS Appellant, Raymond Holloway, of 4005 Rider Lane, Mechanicsburg, Pennsylvania,2 is currently married to Appellee, Ms. Cheryl Kleeman, of 319 Turnpike Road, Newburg, Pennsylvania.3 The couple's relationship has been a tumultuous one both financially and emotionally, so much so that the parties have been twice separated and have spent the majority of their marriage apart. Ms. Kleeman has recently filed for divorce4 and seeks to maintain sole custody of her daughter, Hannah Rose Kleeman. Plaintiff initiated this action in order to obtain partial custody of the child. 1 See Appellant's Concise Statement of Matters Complained of on Appeal filed August 11, 2006, ¶¶ 1-2. s Notes of Transcript held May 3 &5, 2006, p. 100 (hereinafter "N.T. _"). s N.T. 67 a N.T. 70 Although they have been married for eight years, the couple has spent a relatively small amount of time in actual co-residence. The parties were married on July 11, 1998s and lived together until mid-January 2001, about which time they separated and Ms. Kleeman moved out of the couple's home.6 Upon moving out, Ms. Kleeman lived first with a co-worker for several months and then resided with her brother for the remainder of the first separation period which ended in December 2004.8 The second period of co-residency endured approximately one year and ended when Ms. Kleeman moved out of the couple's home in November 2005.9 Although there were some weekends spent together (Saturday to Sunday),10 in total the parties have spent approximately three and one half years of their eight year marriage living together. During the separation, both parties began to see other people socially and romantically.ll Ms. Kleeman became pregnant and gave birth to Hannah Rose Kleeman on March 25, 2002.12 During the gestation and after the birth of her daughter, Ms. Kleeman began to rekindle her relationship with the Plaintiff.13 Ms. Kleeman would often spend weekends with him but maintains that the couple did not have any intimate sexual relations until after the inception and birth of her daughter.14 Regardless of whether the couple were together sexually before the birth, it is certain that Plaintiff is not the father of the child since he had a vasectomy years prior. The vasectomy definitely occurred before his relationship with Ms. Kleeman ever began.ls s N.T. 75 6 N.T. 86 Id. a N.T. 99 9 N.T. 67 10 N.T. 98 " N.T. 91 'Z N.T. 71; Ms. parental status. s N.T. 95 'a N.T. 92-94 's N.T. 75 Kleeman wishes to keep the identity of the father anonymous and has never informed him of his See N.T. 72 2 Plaintiff has a history of financial and behavioral irresponsibility. He has never retained employment for more than two years16 and has been fired multiple times,l' most recently for fraudulent behavior.18 His inability to maintain employment and generate stable income has resulted in a significant arrearage owed to his first wife in back support payments for his three sons.19 During the marriage his erratic employment history generated friction between the parties and they were constantly arguing over unequal financial responsibilities. This conflict has continued to the present day, as Mr. Holloway has not provided any payment to Ms. Kleeman since December 2005 for the two loans they acquired during the marriage.20 Ms. Kleeman, on the other hand, has proven herself to be financially responsible. She has been employed by the Commonwealth of Pennsylvania since 1989, beginning as a secretary for the Department of General Services. She eventually obtained a supervisory position over seven other individuals at the Department of Labor & Industry21 and is earning approximately $43,000 per year.22 During the various periods of habitation with friends and family, Ms. Kleeman contributed an equal share of the living expenses.23 She currently wakes at 5:00 a.m. in the morning to help milk the cows on her sister's farm before going to her own full-time work position.24 She has historically paid the majority of the couple's bills and has demonstrated an ability to consistently meet her financial obligations.25 Beyond the above mentioned financial problems, Mr. Holloway has proven to be quite cavalier in his sexual escapades, which have contributed to the poor emotional health of the 16 N.T. 110 '~ N.T. 139 is N.T. 110 '9 N.T. 59 20 N.T. 121 zt N.T. 68-70 n N.T. 142 zs N.T. 88 24 N.T. 68 zs N.T. 121; 139; 142 3 parties' relationship. Plaintiff has in the past, against the expressed wishes of his wife, extensively frequented Internet websites and chat rooms which contain pornographic material, including bestiality.26 Additionally, Mr. Holloway has attempted to involve Ms. Kleeman in "couple-swapping," an activity in which Plaintiff participated during his first marriageZ~ and in which Ms. Kleeman adamantly refused to take part.28 Plaintiff was aware that Ms. Kleeman desired to have children, but knew that he was unable to impregnate her due to his vasectomy. He did not approve of adoption because he did not want to end up with "somebody else's problem."29 As a solution to his infertility, Mr. Holloway suggested on multiple occasions that Ms. Kleeman seduce a friend, who was physically similar to Mr. Holloway, in order to have a child who would resemble the Plaintiff.30 Plaintiff also maintained a questionable relationship with a co-worker which led to an aggressive confrontation between the parties and precipitated the first period of separation.31 The Plaintiff's liberal sexuality has encroached into the lives of both his own children and Hannah. He allowed one of his sons, at the age of fourteen, to live with his sixteen year-old girlfriend for several weeks32 and sees nothing improper about walking around naked in front of Hannah.33 Apart from the obviously turbulent relationship between the parties, the ties between the Plaintiff and the Defendant's daughter are no less complex. Holloway is not the biological father of Hannah Kleeman.34 His name is not on her birth certificate even though he was given the z6 N.T. 77-78 n N.T. 63 Zs N.T. 79 z9 N.T. 76 so N.T. 77 31 N.T. 80-86 sz N.T. 56-58 ss N.T. 123 sa N.T. 71 4 opportunity to afford Hannah his last name.35 Hannah has only occupied the same residence with Mr. Holloway for approximately eleven months of her four and a half years.36 She refers to him mainly as "Rays37 and, when prodded by Holloway, will occasionally call him "Daddy." 38 She also refers to two of her uncles and her grandfather (her mother's father) as "Daddy." 39 Holloway has testified that he supported Hannah to some degree in the past40 and offered to provide some support for Hannah after the final separation occurred, but only if he would be allotted partial custody - a proposition which Ms. Kleeman refused.al Mr. Holloway has demonstrated irresponsibility in caring for the safety of Hannah on several occasions. Several examples include reckless driving, lack of vigilance over her in public areas, and showing her (a toddler) how to use a BB gun.42 He himself admits that he is not a strong disciplinarian43 and that he has undermined Ms. Kleeman's attempts to discipline her daughter by telling Hannah that she did not need to listen to her mother.a4 Mr. Holloway has, on several occasions, visited Hannah's day care -the Hildebrandt Daycare Center -located at the Labor and Industry building where Ms. Kleeman is employed. On one particular occasion, Mr. Holloway brought a document to the day care center which stated that he was entitled to take Hannah out of the daycare and that the facility was required to release her to him. A copy of this alleged document was never given to Ms. Kleeman nor was she informed by any authority as to its existence. As a result of the Plaintiff's attempt to remove Hannah from the facility without her knowledge or approval, Ms. Kleeman grew concerned as to ss N.T. 73-74 s6 N.T. 67 37 N.T. 102 38 N.T. 139-141 s9 N.T. 115 ao N.T. 27 ai N.T. 117 a2 N.T. 104-106 as N.T. 9 as N.T. 19; 105 5 his intentions and removed Hannah from the daycare.as Ms. Kleeman's sister, Bonnie Deimler, with whom Ms. Kleeman and Hannah live, now cares for Hannah during working hours.46 Ms. Kleeman did permit Holloway to spend some time with Hannah after the final separation, but stopped permitting these visits when Holloway would not return Hannah on time or threatened not to return her at all.a~ Several times, police authorities have been called due to arguments between the couple, some of which have been violent and/or involved threats.ag DISCUSSION Pennsylvania courts have been very strict in reviewing standing in third-party suits for visitation or partial custody due to the respect for the traditionally strong right of natural parents to raise their children in the manner in which they see fit. A third party (or non-biological person) may be permitted to maintain an action where that party stands in loco parentis; that is to say, where he or she has "assumed obligations incident to the parental relationship." Gradwell v. Strausser, 610 A.2d 999, 1002 (Pa. Super. 1992). When a custody dispute is between a biological parent and a third party, the parents have a prima facie right to custody which can only be forfeited by clear and convincing evidence that the transfer of custody would be in the best interest of the child. "[E]ven before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the [biological] parents' side.".Tones v. .Tones, 884 A.2d 915, 917 (Pa. Super. 2005); See also Charles v. Stehlik, 744 A.2d 1255, 1259 (Pa. 2000). It cannot be overemphasized that the key focus in every custody dispute is the best interest of the child, and it can be said that a parent's biological status will not ensure custody if the best interests of the child would lie with another party. Id. at 918. as N.T. 111-112 ~ N.T. 113 47 N.T. 117 48 N.T. 117-120 6 Appellant Raymond Holloway has asserted that he has sufficient standing to seek partial custody and that awarding him with partial custody of Hannah Rose Kleeman is in the best interest of the child. Both of these assertions are without merit and therefore the petition for partial custody has been denied. (1) Standing In Loco Parentis The term "in loco parentis" literally means "in the place of a pazent." Black's Law Dictionary (7th Ed. 1999), 791. The phrase refers to a person who puts himself in the position of a lawful pazent by assuming the responsibilities inherent to the pazental relationship without going through the formality of a legal adoption. The status of in loco parentis denotes two main ideas: first, the assumption of a parental status, and, second, the dischazge of parental duties. Peters v. Costello, 891 A.2d 705, 710 (Pa. 2005). The purpose of this doctrine is to promote the general principle of standing: to ensure that actions aze brought only by those who have a genuine and substantial interest. As each situation is unique, the showing necessary to establish in loco parentis status must be flexible and dependent upon the particular facts of each case. J.A.L. v. E.P.P., 682 A.2d 1314, 1320 (Pa. Super. 1996).a9 Unrelated third parties are only rarely found to have standing in loco parentis. Significant to this particulaz issue, athird-party may not place himself in loco parentis in defiance of the natural parent's wishes and the pazent/child relationship. Id. at 1322, citing Gradwell v. Strausser, 610 A.2d 999, 1003 (Pa. Super. 1992).50 That being said, the Pennsylvania Superior Court has suggested that when anon-biological third party has established a9 Certain factors previously'found to be significant to the determination of in loco parentis standing are co- residency, duration of relatignship,49 and whether the biological parent agrees that the third party should play a parenting role are significan# to the determination of the standing of the petitioner in loco parentis. J.A.L. v. E.P.P., 682 A.2d 1314, 1320-21 (Pa!. Super. 1996). so It is true that step-parents,'who by living in a family setting with the child of a spouse have developed aparent- like relationship with the chii#d, have often been assumed without debate to have standing to seek a continued relationship with the child upon termination of the marriage. Id. at 1320 (emphasis added). 7 a parent-like relationship with the child and seeks only to maintain his relationship with the child through partial custody, the burden of establishing standing is easier to satisfy. Id. at 1320 (emphasis added). Even considering the lowered burden of proof, Mr. Holloway has not demonstrated with clear and convincing evidence that he has both assumed and discharged parental duties to the high degree necessary to establish a valid in loco parentis status. In regards to assumption of parental duties, the Plaintiff had the opportunity to claim the child as his own and give her his last name but this opportunity was cast aside.st The fact that Hannah refers to multiple men as "Daddys52 suggests that she has not spent adequate time with any man to fully understand what a father figure is, and therefore no man has fully assumed the duties that a father would normally have. There is also little evidence that Holloway discharged any meaningful parental duties considering that his best descriptions of time spent with Hannah pertain to recklessly driving a car to entice the little girl to laugh,53 telling her that she is allowed to disobey her mother,54 and threatening not to return Hannah to her mother.ss He testified that he supported the child's needs financially,56 but this testimony was contradicted both by the testimony of his wife, who states that he is "very financially irresponsible,"s~ as well as by his ex-wife who testified that he has been lax in providing fijnancial support for his own children. Though he professes that he cares for this child, he has plainly stated that he will not support her unless he is given partial s' N.T. 73-74 sz N.T. 139-144 ss N.T. 10 s4 N.T. 19; 105 ss N.T. 117 s6 N.T. 27 s~ N.T. 122 custody.58 Such conditional support does not testify to a strong parental bond, but to an unreliable and one-sided relationship with little depth or integrity. It most certainly does not support the argument that Holloway both assumes and discharges parental responsibilities. Mr. Holloway has asserted that equitable estoppel prohibits Ms. Kleeman from denying him custody and visitation rights. Estoppel is: "[B]ased on the public policy that children should be secure in knowing who their parents are. If a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all his life is not his father." Fish v. Behers, 741 A.2d 721 (Pa. 1999) (emphasis added). To raise the issue of estoppel requires that a petitioner first demonstrate the assumption of parental duties and parental behavior. Here, Holloway has failed to establish the presence of these elements. The Plaintiff points to the Tregoning case as evidence that a party maybe estopped from denying a husband's paternity of a child if one of the parties hold the child out to be the child of the marriage. See Tregoning v. Wiltschek, 782 A.2d 1001 (Pa. Super 2001). Although Ms. Kleeman and her daughter did reside with Mr. Holloway for approximately a year,59 and in spite of the fact that Ms. Kleeman was married to the Plaintiff, Ms. Kleeman has testified that she has never viewed Mr. Holloway as the father of Hannah and never attempted to make him out to be her'father. In fact, Hannah refers to many men as "Daddy,s60 which seems to refute Holloway's argument that the child has a secure bond to him as a parental figure -which is the principle of estoppel in custody cases. Based on all of the above, the Court finds as fact that Plaintiff Raymond Holloway does not stand in loco parentis to the child, Hannah Kleeman. sa N.T. 59 ss N.T. 67 60 N.T. 115 9 (2) Best Interest of the Child The "Best Interests" standard is case specific and embodies all of the factors which may legitimately affect a child's physical, intellectual, moral, and spiritual well-being. Arnold v. Arnold, 847 A.2d 674,', 677 (Pa. Super. 2004).61 The facts and testimony presented have evidenced that Hollowjay is lax in caring for his own biological children and that even if he had formed a strong bond ~pvith Hannah, he lacks the maturity and responsibility in multiple facets of life to be awarded the ~rivilege of caring for another young life. Even if Mr. Holloway would have demonstrated sufficient in loco parentis standing, it is clear that to award him partial custody of Hannah Kl~eman would not be in her best interest. There is no need to once again review all of the Plaintiff's sexual proclivities. What is of concern is the way thati Holloway's sexual attitudes will affect Hannah. Mr. Holloway's liberal sexual attitude has ake~dy influenced his own children and testimony has shown that he has displayed his sexualityl,in front of Hannah by walking around naked in front of her.6a Considering the freque$~cy of the Plaintiff's pornographic online ventures, who is to say that Hannah will not come ~nto contact with those pictures or be approached online by those with whom Mr. Holloway discusses sexual affairs? Although there is no evidence of sexual abuse, the disclosure of sexuality in the face of such youth is without question an inappropriate act. To place a young girl in th~ home of a sexually active and explicit man is to ask for unwanted and unnecessary trouble, anjd to endanger the moral well-being of an innocent child. Holloway has a~so demonstrated that he is an irresponsible authority figure. He himself 6t Pennsylvania law is clear hat in any custody dispute a "best interest" analysis should include a number of important factors including: arenthood, the length of time the child has been separated from the party seeking custody, the adverse effect o the child caused by disruption of an established relationship, and the fitness of the party seeking custody. T.B. . L.R.M., 753 A.2d 873, 889 (Pa.Super. 2000). 6z N.T. 123 '' 10 has admitted that he spoils Hannah and is a poor disciplinarian.63 He seems to have little regard for Ms. Kleeman's attempts to provide structure for her daughter, to instill manners, and to raise Hannah with an understanding of social propriety. Children need discipline for their developmental well-bung and without it they will be lacking in a society that demands discipline in its citizens. Lastly, though not by any means of lesser importance, Holloway has not demonstrated his capacity to financiallly support this child. He still is indebted to his first wife for support of his own three sons and has been unable to hold a job for more than two years.65 He has on multiple occasions been fired for inappropriate conduct, including fraud.66 Not only is it clear that Holloway is in no situation to support a fourth child, such behavior will not instill a strong work ethic on a young end impressionable mind. Ms. Kleeman, However, had demonstrated that she cares for her daughter and that she is willing to put forth the bnecessary efforts required to both protect her daughter and contribute to her present and future ~ivell-being. Ms. Kleeman has retained gainful employment for more than fifteen years and has shlown in her work that she is a responsible and trustworthy individual capable of handling a supervisory position.67 She has been faithful in the financial aspects of her life and obviously doeslnot seek to take advantage of kindness, as is demonstrated by her efforts to assist her sister in het farm work.68 Her conduct testifies to the fact that Hannah is the main priority in her life. ss N.T. 9 ~' N.T. 59 ss N.T. 139 ~ N.T. 110; 139 67 N.T. 68-70 6s N.T. 68 11 Holloway's appeal is hinged upon the notion that it is in the best interest of a child to have any fatherly influence rather than to have none at a11.69 Not only is this a false pretense, but it has been repeatedly ~roven invalid in today's society. While Pennsylvania courts have never minimized the importahce of a pazent-child bond,70 neither have they held that it is always better to have some type of "~atherly" presence in the life of a child rather than to have none at all. Were this the case, the (required "best interest" analysis would be obsolete. Raymond Holloway has not proven himselflto be an emotionally, sexually or financially stable man. To subject Hannah to his influence for the sole reason that the young girl might have him as a "fatherly figure" would be a risky and irrational act. This is especially so considering the fact that she has several reliable uncles javho have shown their willingness to provide a positive, masculine influence in her young fife. Holloway conti~ues to maintain that the Mother's conscientious choice not to disclose the name of Hannah's real father somehow militates in his favor. Cleazly, a child of Hannah's age does not comprehend tl~e nature of adult relationships and the choices made by her mother which led to her conception. '~he reasons for the Mother's decision not to disclose could be varied and aze not part of this reco#~d. Suffice it to say, the Mother has proven to be a responsible adult who has provided a safe, financially secure home for the child complete with proper disciplinary controls. Given the tes~imony presented in this hearing, the Court finds that disclosure of the real father's name at this tirr~e in the child's life in no way promotes the best interests of Hannah. It appeazs that the only reason for disclosure of the name at this point is to satisfy Mr. Holloway's desire to know who wad having sexual relations with the Mother during their separation. o See Appellant's Concise Statement of Matters Complained of on Appeal filed August 11, 2006, ¶¶ 6-7. See for example, In re Ado~tion of Godzak, 719 A.2d 365, 368 (Pa. Super. 1998), ("We cannot underestimate the importance of a child's relati nship with his or her biological parent.") 12 Holloway's argument regarding Hannah's eligibility to be a future heir of his estate is also without merit.~l Given Holloway's track record with regard to employment and financial responsibility, the belief that he will even have any meaningful estate is illusory. The Mother should not be compell$d to share custody with a man of poor moral quality in exchange for the unlikely potential that $annah would some day receive a financial benefit from Holloway's estate. Holloway has lead the opportunity to provide for Hannah and has failed to do so. Frankly, the record reflects that he does not even provide adequate support for his own natural children. Clearly, it is in Ithe best interests of the child to remain in the full custody of her mother. It would be a grave and serious error for this Court to go against the wishes of a biological mother who has proven her ability and desire to care for this child, by mandating this young girl be placed in the household of a man who is unable to nurture her financial, intellectual, and moral needs, and who iii fact maybe detrimental to developing these basic living skills. 71 See Appellant's Concise Statement of Matters Complained of on Appeal filed August 11, 2006, ¶ 5. 13 CONCLUSION In conclusion, Mr. Holloway has not demonstrated with clear and convincing evidence that he has the appropriate in loco parentis standing necessary to request third party partial custody of Ms. Hannahl, Kleeman. Even if Mr. Holloway had adequately proven his legal standing, this Court finis that it would still not be in the best interest of the child to award Mr. Holloway with the'~,custody he has requested. The petition for partial custody is therefore denied and full custody is awarded to the biological mother, Ms. Cheryl Kleeman. By the Court: Kara W. Haggerty, Esquire Attorney for Plaintiff ', 1 G. Wass, Esquire Attorney for Defendant' M. L. Ebert, Jr., J. ~ •~~ ~. ~~ ~1 t~~ ~li1~~~~'~ ~,. ~ ~ v ~~ ~ ~ ~?~1~ ~U~G RAYMOND HOLLOWAY, Plaintiff V. CHERYL KLEEMAN, Def~ndant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-0668 CIVIL CIVIL ACTION -LAW IN CUSTODY ORDER OF COURT AND NOW,'this 18th day of August, 2006, upon consideration of Raymond Holloway's Petition for en banc Reconsideration of Order Denying Plaintiff Partial Physical Custody, the Petition is DENIED. By the Court, M. L. Ebert, Jr., J. r.I~cara W. Haggerty, (Esquire Attorney for PlaintiflF ,/Earl G. Wass, Esq ire Attorney for Defen~ant bas c o'° ~' ~~ ~~~!!r"~t~~NN~~~`af 1rJ BZ :~ ~d 81 9t1~ ~DOZ ~~~~' ~~ ate--~~~ ~0 J. A06003/07 NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT I.O.P.65.37 RAYMOND HOLLOWAY, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA v. CHERYL KLEEMAN, Appellee No. 1238 MDA 2006 Appeal from the Order entered June 21, 2006, in the Court of Common Pleas of Cumberland County, Civil, at No. 06-668. BEFORE: HUDOCK, TODD and MCCAFFERY, JJ. MEMORANDUM: FILED: April 18, 2007 Raymond Holloway (Husband) appeals from the order of the trial court denying his petition for partial custody of Hannah Rose Kleeman (Hannah), born March 25, 2002. We affirm. The trial court summarized the pertinent facts and procedural history as follows: [Husband] of 4005 Rider Lane, Mechanicsburg, Pennsylvania, is currently married to [Cheryl Kleeman (Wife)], of 319 Turnpike Road, Newburg, Pennsylvania. The couple's relationship has been a tumultuous one both financially and emotionally, so much so that the parties have been twice separated and have spent the majority of their marriage apart. [Wife] has recently filed for divorce and seeks to maintain sole custody of her daughter, [Hannah]. [Husband] initiated this action in order to obtain partial custody of the child. Although they have been married for eight years, the couple has spent a relatively small amount of time in actual co-residence. The parties were married on July 11, 1998 J. A06003/07 and lived together until mid-]anuary 2001, about which time they separated and [Wife] moved out of the couple's home. Upon moving out, [Wife] lived first with a co-worker for several months and then resided with her brother for the remainder of the first separation period which ended in December 2004. The second period of co-residency endured approximately one year and ended when [Wife] moved out of the couple's home in November 2005. Although there were some weekends spent together, (Saturday to Sunday), in total the parties have spent approximately three and one-half years of their eight year marriage living together. During the separation, both parties began to see other people socially and romantically. [Wife] became pregnant and gave birth to [Hannah]. During the gestation and after the birth of her daughter, [Wife] began to rekindle her relationship with [Husband]. [She] would often spend weekends with him but maintains that [they] did not have any intimate sexual relations until after the inception and birth of [Hannah]. Regardless of whether the couple were together sexually before the birth, it is certain that [Husband] is not the [biological] father of the child since he had a vasectomy years prior. The vasectomy definitely occurred before his relationship with [Wife] ever began. Husband has a history of financial and behavioral irresponsibility. He has never retained employment for more than two years and has been fired multiple times, most recently for fraudulent behavior. His inability to maintain employment and generate stable income has resulted in a significant arrearage owed to his first wife in back support payments for his three sons. During the marriage his erratic employment history generated friction between the parties and they were constantly arguing over unequal financial responsibilities. This conflict has continued to the present day, as [Husband] has not provided any payment to [Wife] since December 2005 for the two loans they acquired during the marriage. [Wife], on the other hand, has proven herself to be financially responsible. She has been employed by the Commonwealth of Pennsylvania since 1989, beginning as a secretary for the Department of General Services. She -2- ). A06003/07 eventually obtained a supervisory position over seven other individuals at the Department of Labor & Industry and is earning approximately $43,000 per year. During the various periods of habitation with friends or family, [Wife] contributed an equal share of the living expenses. She currently wakes at 5:00 a.m. in the morning to help milk the cows on her sister's farm before going to her own full- time work position. She has historically paid the majority of the couple's bills and has demonstrated an ability to consistently meet her financial obligations. Beyond the above mentioned financial problems, [Husband] has proven to be quite cavalier in his sexual escapades, which have contributed to the poor emotional health of the parties' relationship. [He] has in the past, against the expressed wishes of [Wife], extensively frequented Internet web sites and chat rooms which contain pornographic material, including bestiality. Additionally, [Husband] has attempted to involve [Wife] in couple- swapping," an activity in which [he] participated during his first marriage and in which [Wife] adamantly refused to take part. [Husband] was aware that [Wife] desired to have children, but knew that he was unable to impregnate her due to his vasectomy. He did not approve of adoption because he did not want to end up with 'somebody else's problem. As a solution to his infertility, [Husband] suggested on multiple occasions that [Wife] seduce a friend, who was physically similar to [Husband], in order to have a child who would resemble [him]. [Husband] also maintained a questionable relationship with a co-worker which led to an aggressive confrontation between the parties and precipitated the first period of separation. [Husband's] liberal sexuality has encroached into the lives of both his own children and Hannah. He allowed one of his sons, at the age of fourteen, to live with his sixteen year-old girlfriend for several weeks and sees nothing improper about walking around naked in front of Hannah. Apart from the obviously turbulent relationship between the parties, the ties between [Husband] and [Hannah] are no less complex. [He] is not the biological father of [Hannah]. His name is not on her birth certificate even though he was given the opportunity to afford Hannah his last name. Hannah has only occupied the same residence -3- ]. A06003/07 with [Husband] for approximately eleven months of her four and a half years. She refers to him mainly as "Ray" and, when prodded by [Husband], will occasionally call him "Daddy." She also refers to two of her uncles and her grandfather ([Wife's] father) as "Daddy." [Husband] has testified that he supported Hannah to some degree in the past and offered to provide some support for Hannah after the final separation occurred, but only if he would be allotted partial custody-a proposition which [Wife] refused. [Husband] has demonstrated irresponsibility in caring for the safety of Hannah on several occasions. Several examples include reckless driving, lack of vigilance over her in public areas, and showing her (a toddler) how to use a BB gun. He himself admits that he is not a strong disciplinarian and that he has undermined [Wife's] attempts to discipline her daughter by telling Hannah that she did not need to listen to her mother. [Husband] has, on several occasions, visited Hannah`s day care -the Hildebrandt Daycare Center - located at the Labor and Industry building where [Wife] is employed. On one particular occasion, [he] brought a document to the day care center which stated that he was entitled to take Hannah out of daycare and that the facility was required to release her to him. A copy of the alleged document was never given to [Wife] nor was she informed by any authority as to its existence. As a result of [Husband's] attempt to remove Hannah from the facility without her knowledge or approval, [Wife] grew concerned as to his intentions and removed Hannah from daycare. [Wife's] sister, Bonnie Deimler, with whom [Wife] and Hannah live, now cares for Hannah during working hours. [Wife] did permit [Husband] to spend some time with Hannah after the final separation, but stopped permitting these visits when [Husband] would not return Hannah on time or threatened not to return her at all. Several times, police authorities have been called due to arguments between the couple, some of which have been violent and/or involved threats. -4- J. A06003/07 Trial Court Opinion, 8/18/06, at 1-6 (footnotes omitted). The trial court chose not to interview Hannah. Given the above facts, the trial court determined that Husband lacked standing to seek partial custody of Hannah because, as a third party seeking custody from a parent, he had not sufficiently established that had acted "in loco parentis." The court further determined that, even if Husband established standing to file the petition, it was not in Hannah's best interest to grant him any amount of partial custody. Husband's petition for en banc review was denied. This appeal followed. Both Husband and the trial court have complied with Pa.R.A.P. 1925. Husband raises the following issues on appeal: I. DID THE LOWER COURT ERR WHEN IT IGNORED THE DOCTRINE OF EQUITABLE ESTOPPEL, WHICH PROHIBITS [WIFE) FROM DENYING [HUSBAND] CUSTODY AND VISITATION RIGHTS? II. DID THE LOWER COURT ERR WHEN IT DETERMINED THAT [HUSBAND] DID NOT ESTABLISH STATUS AS IN LOCO PARENTIS? III. DID THE LOWER COURT ERR IN DRAWING CONCLUSIONS REGARDING THE ~~BEST [INTERESTS] OF THE CHILD" THAT WERE UNSUPPORTED BY THE RECORD? IV. DID THE LOWER COURT ERR WHEN IT DETERMINED THAT 'THE BEST INTERESTS OF THE CHILD" STANDARD NECESSITATES ALLOWING [WIFE] TO DEPRIVE HER OWN MINOR CHILD, HANNAH, OF THE RIGHT AND OPPORTUNITY TO HAVE A WILLING AND CAPABLE FATHER FIGURE INVOLVED IN HANNAH'S UPBRINGING? -5- J. A06003/07 Husband's Brief at 4.1 As this Court has summarized: On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the fact-finding function of the trial court in order to substitute our judgment for that of the trial court. Rather, we are bound by findings supported by the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court. Thomas v. Thomas, 739 A.2d 206, 209 (Pa. Super. 1999) (en banc). The clear import of this standard is that we are not bound by conclusions of law, even if they have been labeled as findings of fact. Id. Nor are we bound by actual findings of fact that are unsupported by the certified record. Id. Of course, "on the issues of credibility and weight of the evidence, we defer to the findings of the trial judge." Arnold v. Arno/d, 847 A.2d 674, 677 (Pa. Super. 2004) (citation omitted). In short, "appellate interference is allowed only where it is found that the custody order is manifestly unreasonable as shown by the evidence of record." Id. The legal standard that we apply is equally well settled: The paramount concern in a child custody case is the best interests of the child. 1 While Husband raises these four questions, the argument section of his brief is divided into five separate sections. See Pa.R.A.P, 2119(a) (providing that, "The argument shall be divided into as many parts as there are questions to be argued[.]") We will address the above issues in conjunction with the relevant argument put forth by Husband, regardless of its placement within the brief. -6- ). A06003/07 Ferdinand v. Ferdinand, 763 A.2d 820, 822 (Pa. Super. 2000), appeal denied, 784 A.2d 118 (Pa. 2001). A determination of a child's best interests is handled on a case-by-case basis and must be premised upon consideration of all factors that legitimately affect the child's physical, intellectual, moral and spiritual well being. McAlister v. McAlister, 747 A.2d 390, 391 (Pa. Super. 2000). Thus, any court addressing a custody action has the obligation to consider all relevant factors that could affect the child's well being. Ferdinand, 763 A.2d at 822. We will address Husband's first two claims together as they are interrelated. He asserts that the trial court erred by ignoring the doctrine of equitable estoppel and in concluding that he did not prove he acted in loco parentis. The trial court discussed these concepts as follows: Even considering the lowered burden of proof, [Husband] has not demonstrated with clear and convincing evidence that he has both assumed and discharged parental duties to the high degree necessary to establish a valid in loco parentis status. In regards to assumption of parental duties, [Husband] had the opportunity to claim the child as his own and give her his last name but this opportunity was cast aside. The fact that Hanna refers to multiple men as "Daddy" suggests that she has not spent adequate time with any man to fully understand what a father figure is, and therefore no man has fully assumed the duties that a father would normally have. There is also little evidence that [Husband] discharged any parental duties considering that his best descriptions of time spent with Hannah pertain to recklessly driving a car to entice the girl to laugh, telling her that she is allowed to disobey her mother, and threatening not to return Hannah to her mother. He testified that he supported the child's needs financially, but this testimony was contradicted both -7- ]. A06003/07 by the testimony of [Wife], who states that he is "very financially irresponsible," as well as by his ex-wife who testified that he has been lax in providing financial support for his own children. Though he professes that he cares for this child, he has plainly stated that he will not support her unless he is given partial custody. Such conditional support does not testify to a strong parental bond, but to an unreliable and one-sided relationship with little depth or integrity. It most certainly does not support the argument that [Husband] both assumes and discharges parental responsibilities. [Husband] has asserted that equitable estoppel prohibits [Wife] from denying him custody and visitation rights. .. . To raise the issue of estoppel requires that a petitioner first demonstrate the assumption of parental duties and parental behavior. Here, [Husband] has failed to establish the presence of these elements. ... Although [Wife] and her daughter did reside with [Husband] for approximately a year, and in spite of the fact that [Wife] was married to [Husband], [Wife] has testified that she had never viewed [Husband] as the father of Hannah and never attempted to make him out to be her father. In fact, Hannah refers to many men as "Daddy," which seems to refute [Husband's] argument that the child has a secure bond to him as a parental figure - which is the principle of estoppel in custody cases. Based on all of the above, the Court finds as fact that [Husband] does not stand in loco parentis to the child[.] Trial Court Opinion, 8/18/06, at 8-9 (footnotes omitted). As our Supreme Court has stated, the doctrine of equitable estoppel is based upon the policy that "under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child." Fish v. Behers, 741 A.2d 721, 723 (Pa. 1999). In this case, primarily all of the evidence that Husband "held" Hannah out as his daughter came from his -8- ]. A06003/07 own self-serving testimony. As noted by the trial court, Wife denied Husband's claims. As credibility and weight to be assigned the testimony of a witness is exclusively for the trial court as factfinder, Arnold, supra, we cannot conclude that Wife is equitably estopped from denying Husband periods of partial custody. Nevertheless, after reviewing the record, we must disagree with the trial court's conclusion that Father failed to demonstrate that he acted in loco parentis toward Hannah such that he should be denied standing to seek custody of her. As this Court has stated: It is well settled that persons other than natural parents are third parties for purposes of custody controversies. Courts have highly scrutinized principles of standing to protect the interest of the court system in assuring that actions are litigated by proper parties and to prevent intrusion and interference into the family domain by those who are strangers, however well-meaning. Thus, third parties will only be found to have standing by our Court when the third party has shown a prime facie right to custody. A prima facie right to custody may be established by a third party's conduct, i.e., when the third party has stood in loco parentis to the child for whom the third party is seeking custody. The well settled definition of in loco parentis is set forth as follows: The phrase in loco parentis refers to a person who puts himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of legal adoption. The status of in loco parentis embodies two ideas; first, the assumption of parental status, and, second, the discharge of parental duties. An important factor in determining whether a third party has standing is whether the third party lived with the child and the natural parent in a family setting, irrespective of its traditional or nontraditional composition, and developed a relationship -9- J. A06003/07 with the child as a result of the participation and acquiescence of the natural parent. Moreover, where only limited custody rights are sought, the limited nature of the intrusion into the biological family must be considered in deciding whether standing has been made out. Bupp v. Bupp, 718 A.2d 1278, 1281-82 (Pa. Super. 1998) (citations omitted). In its factual findings and legal conclusions, the trial court focuses primarily on the time the parties spent together during the length of their marriage rather than the time Husband spent with Wife and Hannah after Hannah's birth. Our review of the record, including Wife's testimony, indicates that, following Hannah's birth, Mother and Hannah spent almost every weekend with Husband (either at his house or his parents' house) leading to their subsequent decision to live as a family in their own residence for what turned out to be about eleven months. Wife left the residence in late 2005, at a time when Hannah was over three years old. Thus, the record reveals that Husband had significant contact with Hannah during the majority of her life. Father testified as to certain parental duties he performed. See e.g., N.T., 5/3/06, at 13 (giving Hannah her asthma treatments). We therefore conclude that the trial court's determination that Husband never acted in loco parentis is unsupported by the record, and Husband has standing to seek partial custody. See Bupp, 718 A.2d at 1282 (holding that, if the mother chooses to cultivate and encourage someone to assume parental obligations and discharge parental duties toward her -10- J. A06003/07 daughter, simply because the couple subsequently have differences that result in separation, the mother cannot eradicate the relationship which had developed between the other person and the child). Thus, the question becomes whether the record supports the trial court's additional determination that granting Husband any amount of partial custody or visitation would not be in Hannah's best interest. We once again address Father's final two issues together. He first claims that certain of the court's factual findings and legal conclusions are not supported by the record. He then asserts that, ultimately, the trial court erred in concluding that the award of any period of partial custody to him would not be in Hannah's best interest. "Our paramount concern and the polestar of our analysis in this case, and a legion of prior custody cases is the best interests of the child." Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted). "The best interests standard, decided on a case-by-case basis, considers all factors which legitimately have an effect upon the child's physical, intellectual, moral and spiritual well-being." Id. The trial court found that granting Husband partial custody or visitation would not be in Hannah's best interest: The facts and testimony presented have evidenced that [Husband] is lax in caring for his own biological children and that even if he had formed a strong bond with Hannah, he lacks the maturity and responsibility in multiple facets of life to be awarded the privilege of caring for another young life. Even if [Husband] would have demonstrated sufficient in -11- J. A06003/07 loco parentis standing, it is clear that to award him partial custody of [Hannah] would not be in her best interest. There is no need to once again review all of [Husband's] sexual proclivities. What is of concern is the way that [Husband's] sexual attitudes will affect Hannah. [His] liberal sexual attitude has already influenced his own children and testimony has shown that he has displayed his sexuality in front of Hannah by walking around naked in front of her. Considering the frequency of [Husband's] pornographic online ventures, who is to say that Hannah will not come into contact with those pictures or be approached by those with whom [Husband] discusses sexual affairs? Although there is no evidence of sexual abuse, the disclosure of sexuality in the face of such youth is without question an inappropriate act. To place a young girl in the home of a sexually active and explicit man is to ask for unwanted and unnecessary trouble, and to endanger the moral well-being of an innocent child. [Husband] has also demonstrated that he is an irresponsible authority figure. He himself has admitted that he spoils Hannah and is a poor disciplinarian. He seems to have little regard for [Wife's] attempts to provide structure for her daughter, to instill manners, and to raise Hannah with an understanding of social propriety. Children need discipline for their developmental well-being and without it they will be lacking in a society that demands discipline in its citizens. Lastly, though not by any means of lesser importance, [Husband] has not demonstrated his capacity to financially support this child. He still is indebted to his first wife for support of his own three sons and has been unable to hold a job for more than two years. He has on multiple occasions been fired for inappropriate conduct, including fraud. Not only is it clear that [Husband] is in no situation to support a fourth child, such behavior will not instill a strong work ethic on a young and impressionable mind. -12- ]. A06003/07 [Husband's] appeal is hinged upon the notion that it is in the best interest of the child to have any fatherly influence rather than to have none at all. Not only is this a false pretense, but it has been repeatedly proven invalid in today's society. While Pennsylvania courts have never minimized the importance of a parent-child bond, neither have they held that it is always better to have some type of "fatherly" presence in the life of a -child rather than to have none at all. Were this the case, the required "best interest" analysis would be obsolete. [Husband] has not proven himself to be an emotionally, sexually or financially stable man. To subject Hannah to his influence for the sole reason that the young girl might have him as a ~~fatherly figure" would be a risky and irrational act. This is especially so considering the fact that she has several reliable uncles who have shown their willingness to provide a positive, masculine influence in her young life. [Husband's] argument regarding Hannah's eligibility to be a future heir of his estate is also without merit. Given [his] track record with regard to employment and financial responsibility, the belief that he will even have any meaningful estate is illusory. [Wife] should not be compelled to share custody with a man of poor moral quality in exchange for the unlikely potential that Hannah would some day receive a financial benefit from [Husband's] estate. [Husband] has had the opportunity to provide for Hannah and has failed to do so. Frankly, the record reflects that he does not even provide adequate support for his own natural children. Clearly, it is in the best interests of the child to remain in the full custody of her mother. It would be a grave and serious error for this Court to go against the wishes of a biological mother who has proven her ability and desire to care for this child, by mandating this young girl be placed in the household of a man who is unable to nurture her financial, intellectual, and moral needs, and who in fact may be detrimental to developing these basic living skills. Trial Court Opinion, 8/18/06, at 10-13 (footnotes omitted). -13- ). A06003/07 As a general rule, when determining the best interest of the child, the circumstances of the parties at the time of the custody hearing must be considered. Plowman v. Plowman, 597 A.2d 701, 707 (Pa. Super. 1991).2 Thus, we agree with Husband that the trial court's reliance upon his past sexual behaviors and his prior viewing of internet pornography was misplaced, as there was no indication that he currently engages in such behaviors or that this past conduct had any effect on Hannah. We also believe the trial court improperly drew conclusions from testimony concerning Husband's inability to discipline his teenage son and with regard to his support obligations for his other children. Additionally, while Wife testified that Husband walked naked in front of Hannah on one or more occasions when they lived as a family unit, there is no indication that this behavior has continued. Despite these statements by the trial court, however, we agree with the court that the record contains little evidence, other than Father's own testimony, of a bond that has developed between him and Hannah to such 2 Wife cites Jones v. Jones, 884 A.2d 915 (Pa. Super. 2005), and Snarski v. Krincek, 538 A.2d 1348 (Pa. Super. 1988), for the proposition that, ~~It is clear that when making a decision as to the current best interests of the children, the trial judge can consider the history of the parties." Jones, 884 A.2d at 916. A close reading of these cases reveals that it is the party's past efforts at caring for the child and/or his or her actions toward limiting the other party's visitation and contact with the child that was properly considered by the court at a subsequent custody hearing. Unlike those cases, in the present appeal the court emphasized Husband's past conduct, which has no connection to the child and was no longer occurring. -14- J. A06003/07 an extent that the court's decision to not award him any period of partial custody was "manifestly unreasonable." Arno/d, supra. Once again, assigning credibility to the testimony presented at the custody hearing is exclusively for the trial court as factfinder. Id. Moreover, the record does support the trial court's acceptance of Wife's testimony that, when Husband had custody of Hannah, he engaged in reckless conduct, such as driving a car with the child unsecured and showing her how to operate a BB gun, and that there were occasions when he would not return Hannah to Wife at the proper time. Finally, the trial court also accepted Wife's testimony that Husband undermines her attempt to discipline the child. Unlike evidence of Husband's behavior, which occurred prior to Hannah's birth, this evidence was clearly relevant and militates against the award of partial custody of Hannah to Husband. Thus, considering the trial court's conclusions as a whole, we concur in its determination that no award of partial custody to Husband was warranted. Order affirmed. -15- J. A06003/07 Judgment Entered: c e uty Prothonotary Date: APR 1 ~ 2007 -16- ~ ~i ~~ ~~ ~ ` = ~ ~ ~~ ~ :~ ~ _ ~ ~~ ~ Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary TO: Mr. Curtis R. Long Prothonotary ~ w . Superior Court of Pennsylvania Middle District April 18, 2007 Certificate of Remittal/Remand of Record RE: Holloway, R. v. Kleeman, C. No.1238 MDA 2006 Trial Court/Agency Dkt. Number: 06-668 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: 100 Pine Street. Suite 400 Harrisburg, PA 17]01 717-772-1294 wwwsuperior.courtstate. pa.us Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Filed Date Description Part August 31, 2006 1 Date of Remand of Record: MAY 2 9 ?001 ORIGINAL RECIPIENT ONLY -Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. • ~~ Signature Date Printed Name /alv Q ~ ~ t ..c ~ .. ~ ~~ ,a.:, ~~ _ . ~s-'t c~. N r .G