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HomeMy WebLinkAbout06-1743C'. SIN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Linda I. Peifer, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY OF PENNSYLVANIA vs. , Timothy Peifer, N0. CL - /7`i.1 Cuz.j ~~- and Tara Finkbiner, Defendants CIVIL ACTION - IN CUSTODY N O T I C E T O D E F E N D You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE PA 17013 717-249-3166 c7-_...~, ~~ 5 ~ ,,,~ ~~1 _~.~~~-sue Mary A. Etter Dissinger, E quire Attorney for Plaintiff CI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Linda I. Peifer, Plaintiff vs. Pimothy Peifer, and Tara Finkbidner, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA NO. O (, / ~ ~ 3 Lcu~( Lw^ CIVIL ACTION - IN CUSTODY PETITION FOR PARTIAL CUSTODY AND VISITATION Plaintiff is Linda Peifer, residing at 517 Warren Street, ne, Cumberland County, Pennsylvania. Defendants are Timothy Peifer, residing at 335 Market et, Apartment 033, Harrisburg, Dauphin County, Pennsylvania Tara Finkbinder, residing at 2119 Wentworth Drive, Camp Hill, erland County, Pennsylvania. Plaintiff, Linda Peifer, paternal grandmother, seeks partial stody and visitation of the following child: me Present Residence Age llian Peifer 2119 Wentworth Dr., Camp Hill DOB 4/01/02 The child was born out of wedlock. The child is presently in the custody of Defendant Mother, Finkbinder, who resides at 2119 Wentworth Dr, Camp Hill, Cumberland County, Pennsylvania. 6. Defendant/Father is entitled to visitation pursuant to a Stipulation For Custody. (A copy of the Custody Order dated February 8, 2004 is attached as Exhibit "A".) 7. During the past five years, the child has resided with the following persons at the following addresses: & Tara Finkbinder & Tara Finkbinder & Tara Finkbinder Peifer Addresses 2119 Wentworth Dr. Camp Hill Allen St. Mechanicsburg,PA 303 N. Market St. Mech, PA 303 N. Market St. Mech, PA Date 11/OS - present 2/05 - 11/OS 4/03 - 2/05 2/03 - 3/03 11/02 -2/03 4/02 - 10/02 Peifer & Tara Peifer 303 N. Market St. Mech, PA Peifer & Tara Kerstetter Quaker Rd., Lewisberry, PA 8. The mother of the child is Defendant, Tara Finkbinder, who currently resides at 2119 Wentworth Dr, Camp Hill, Cumberland County, Pennsylvania. 9. The father of the child is Defendant, Timothy Peifer, who currently resides at 335 Market Street, Apartment 033, Harrisburg, Dauphin County, Pennsylvania. 10. The relationship of Plaintiff to the child is that of Paternal Grandmother. The Plaintiff currently resides at 517 Warren Street, Lemoyne, Cumberland County, Pennsylvania. 11. The relationship of Defendants to the child is that of Father and Mother. Defendants/Parents have been living apart since February 2003. 13. Plaintiff has not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the child in this or another court. 14. Plaintiffs have no information of a custody proceeding concerning the child pending in a court of this Commonwealth, but both defendants have rights pursuant to a Custody Order (See Attached Echibit "A") granted by this Court to Docket #2004-191. X15. Plaintiffs know of no other persons or parties who have (physical custody of the child or claims to have custody or visitation rights with respect to the child. 16. The best interest and permanent welfare of the child will be served by granting the relief requested because: a. Plaintiff is the paternal grandmother of the child. b. Since the child was born, Plaintiff has established a ery loving relationship with the child, and recently Tara inkbinder and Brett Finkbinder have prevented the continuation f that relationship. X17. Granting the relief requested would not interfere with the t/child relationship. 8. Each parent whose parental rights to the child have not been erminated and the person who has physical custody of the child been named as parties to this action. All other persons, med below who are known to have or claim a right to custody or sitation of the child will be given notice of the pendency of this action and the right to intervene: NONE Plaintiff requesst the Court to grant her partial custody and visitation of the child.. Respectfully Submitted: DISSINGER 1~ND DISSINGER Mary A. Etter Dissinger Attorney for Plaintiffs Supreme Court I.D. 27736 28 North Thirty-second Street Camp Hill, PA 17011 (717) 975-2840 FEB 1 1 20Q4 TARA PEIFER, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUI~ITY, PENNSYLVANIA V. : NO.2004-191 CIVIL TERM CIVIL ACTION -LAW TIMOTHY PEIFER, Defendant : IN CUSTODY ORDER OF COURT AND NOW, this __!1'1~ day of {"C(~ . , 2004, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. The Mother, Tara Peifer, and the Father, Timothy Peifer shall have shazed legal custody of Lillian A. Feifer, born April t, 2002. Each pazent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding her health, education and religion. 2. Mother shall have primary physical custody of the Child. 3. Father shall have partial physical custody of the Child every Tuesday and Thursday from 12:00 noon until the following morning. Father shall deliver the Child to the Learning and Play Center (Daycare) before noon on Wednesdays and Fridays. 4. Transportation: Transportation shall be shared by the parties. Mother shall be responsible for transporting the Child to Father's residence on Tuesdays and Thursdays. Father shall contact Mother in advance if he is unable to exercise his custodial time. If Father is not home at the scheduled custody exchange time, and no call has been received by Mother indicating that Father is en route, Mother shall wait one-half hour and shall be free to proceed with alternate plans for the day if Father fails to appeaz. Father shall be responsible for ensuring the Child arrives at Daycare before noon on Wednesdays and Fridays. 5. Holidays: The holiday custody schedule shall supersede the normal physical custody schedule outlined above. Transportation shall be opposite of the normal schedule; the party receiving custody shall be responsible for the transportation of the Child. A. Christmas: The Christmas holiday shall be split between the parties. On Christmas Eve, Father shall have physical custody of the Child EXHIBIT nAr~ from 12:00 noon unti19:00 p.m. Mother shall have physical custody of the Ghi1d on Christmas Day. B. Thanksgiving: Thanksgiving day shall be split between the garties. During even yeazs, Father shall have physical custody of the Child from 9:00 a.m. to 4:00 p.m. Mother shall have physical custody of the Child from 4:00 p.m, to 9:00 p.m. Times shall be reversed during odd numbered yeazs. C. Mother's Day/Father's Day: Mother shall always have the Child on Mother's Day, and Father shall always have the Child on Father's Day. The custodial period on Mother's Day and Father's Day shall be from 9:00 a,m. to 7:00 p.m. D. All other holidays shall be shazed by the parties as mutually agreed. 6. Neither pazent shall consume alcohol to the point of intoxication while the Child is in his/her custody. Neither parent shall use illegal drugs while the Child is in his/her custody. 8. The parties shall keep one another adviseu of their current address and telephone number. 9. Mother and Father will notify each other of all medical caze the Child receives while in that pazent's care. Mother and Father will notify each other immediately of medical emergencies that arise while the Child is in that pazent's care. 10. Neither parent shall do anything that may estrange the Child from the other pazent, or injure the opinion of the Child as to the other parent, or that may hamper the free and natural development of the Child's love and respect for the other parent. 11. This Order is entered pursuant to an agreement of the parties at a Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT, cc: Alysia Hudock, certified legal intern, Counsel for Mother Arme MacDonald-Fox, Esquire, Family Law Clinic Timothy Peifer, pro se 260 North Street Harrisburg, PA 17101 T~iU~ COPY FROM! REGVrtu ~~~ ~`~,~,~iyT~Xip wiwo~~yr{~(~~~ r(/.~ J~~.~3,r~~~ra u({;~~~.'3~0 yet rtwq+w~ ~~~ TARA PEIFER, Plaintiff V. TIMOTHY PEIFER, Defendant PRIOR JUDGE: None IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN'T'Y, PENNSYLVANIA 2004-191 CIVIL TERM CIVIL ACTION -LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Lillian A. Peifer April 1, 2002 Mother 2. A Conciliation Conference was held in this matter on February 10, 2004. Present at the conference were Mother, Taza Peifer, with her counsel, Alysia Hudock, certified legal intern, and Anne MacDonald-Fox, Esquire, Family Law Clinic and Father, Timothy Peifer, pro se. The parties agreed to an Order in the form attached. -lD-d~ ~ .~_.,c ~~~~ ~ Date acq line M. Verney, Esquire Custody Conciliator I, Linda I. Peifer, verify that the statements made in the Complaint for Custody are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. ~~~~1 c~~~. ~ ~~~ v~~, Linda I. Peifer, Plaintiff r.. r.o <.J 'a ~ ~, { ~. ~, ,. ~~ ~ ~~ l _ , „ ^' ~=• --c ~, LINDA 1. PEIFER 1N THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBF.RLANU COUNTY, PENNSYLVANIA ~' 06-1743 CIVIL ACTION LAW TIMOTHY PEIFER IN CUSTODY DFiFENDANT ORDF,R OF COURT AND NOW, __ Wednesday, March 29, 2006 _, upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Melissa P. Greevy, Esq. ,the conciliator, at MDJ Manlove, 1901 State St., Camp HiII, PA_170ll_ ou __ ___ . Friday, May O5, 2006 at 8:30 AM 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 be heard by the court, and to enter into a temporary order. All children age 'five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 4R hours prior to scheduled hearing. FOR THE COURT, By: /s/ Melissa P. Gre~E~~i_ 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 [o 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. 1F YOU DO NO"f NAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SE'T~ FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 ~~ n tai ~~ ;,) ~ _.'~~ a~..., ~ ~ t.~, ~' +~"~+ Linda I. Peifer, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY OF PENNSYLVANIA vs. Timothy Peifer, N0. 06-1743 and Tara Finkboner, Defendants CIVIL ACTION - IN CUSTODY AFFIDAVIT OF MAILING COMMONWEALTH OF PENNSYLVANIA ss .. COUNTY OF CUMBERLAND Mary A. Etter Dissinger, attorney for Plaintiff, Linda I. Peifer, being duly sworn according to law, says that she mailed by United States Certified Mail, Restricted Delivery, a true and correct copy of the Custody Complaint in this action to the Defendant at her residence, and that Defendant did receive same as evidenced by the signed receipt dated March 29, 2006, attached hereto as Exhibit "A". Mary A. fitter Dissinger Attorney for Plaintiff Supreme Court ID #27736 28 North 32nd Street Camp Hill, PA 17011 (717) 975-2840 orn to and subscribed fore me this 27th y of April, 2006. Notary public NOTARYLL BFILL MINEiIE PERK9~ NAY R~bNC CM+1NLLlOROIIOH. CUMlERIMDCOUN~Y MY Carimk~bn EzplrN Ju122, 2009 ^ Complete Items 1, 2, and 3. Also complete item 0 If Restricted Delivery is desired. ^ Print your name and address on the reverse so that we can return the card to you. ^ Attach this card to the back of the mailpiece, or on the front if space permits. ~. Ar9cle Addressetl to .~- , ~. t; ~~~~, rl ~~ f>,- f ~ rf `. ~ ~ ~ ` A. Slgr~tur X ~ B. ived by I fMMed Name) C. Date D. CIS delivery adtlress different from item 1? ~ Ye' If YES, enter delivery atldress below: No Service Type ~Gertified Mail ^ Express Mail ^ Registered ^ Return Receipt for Merchandise ^ Insured Mail ^ C.O.D. 4. Restricted Delivery? (Extra Feel Yes z. ArtiGe"umber 7~~2 086 0004 2518 7431 (Trans/er from service label) PS Form 3811, August 2001 Domestic Return Receipt 1a25ss~a2M-i5nc EXHIBIT "A" `. (Linda I. Peifer, Plaintiff vs. Timothy Peifer, and Tara Finkboner, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA NO. 06-1743 CIVIL ACTION - IN CUSTODY AFFIDAVIT OF MAILING COMMONWEALTH OF PENNSYLVANIA ss .. COUNTY OF CUMBERLAND Mary A. Etter Dissinger, attorney for Plaintiff, Linda I. Peifer, being duly sworn according to law, says that she mailed by United States Certified Mail, Restricted Delivery, on April 20, 2006, a true and correct copy of the Custody Complaint in this action to the Defendant at his residence, and that Defendant did receive same as evidenced by the signed receipt, which was received in Attorney Dissinger's office on April 27, 2006, however it was incorrectly dated stamped May 6, 2006, on Section C of the Certified Mail delivery receipt, attached hereto as Exhibit "A". Mar~ter Dissinger Attorney for Plaintiff Supreme Court ID #27736 28 North 32nd Street Camp Hill, PA 17011 (717) 975-2840 Sworn to and subscribed before me this 27th day of April, 2006. Notary public NOTAIIW tFlll NINE7IE PERKINi HAY ~~ f~Mt Ill ~OYOUON. CIIwRNNA COIINM My Cann~YNp~ BipYw.kA ~. 4009 ;~. y _ ,/ ^ Age C-._____ G. ddressee B. Received 6y (Printed Name) C. Date of Delivery r D. Is delivery adtlress different from item 1? ^ Yes If YES, enter tlelivery atldress below: ^ No ~~ 1, ~~ r~ -Tukoz N f 1Y/ 1~~(`Ff eKy ~\ j~ J~~ (`(~xf ~k"1 J1- ~"~~I ~..~ Serv eType 1 I) Rified Mail ^ Express Mail ~, Y ~~ ~ ~ I L ( ^ Registered ^ Return Receipt for Merchandise } ^ Insuretl Mail ^ C O.D. 4. Restricted Delivery? (Extra Fee) s z. Aurae"umber 702 086 0~~4 2518 7318 (Tians/er /ram service label) PS Form 3$11 ,August 2007 Domestic Return Receipt rozsss-oz-M-tsao • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ^ Print your name and address on the reverse so that we can return the card to you. ^ Attach this card to the back of the mailpiece, or on the front if space permits. t. Article Addressed to: U.S. Postal Service CERTIFIED MAIL RECEIPT (Domestic Mai! Only; No Insurance Coverage Provic r-R r7J ~' Postage $ O - `- ~ canned Fee ' J r PostmaYrt`.; a Return Recalpt Fee -j" Here ~ (Endorsement Required) ,, ~ Restricted neAivery F¢e ~+ ~ i~ ' '. ~ I N 1 ~ O (Endorsement Required) !il ` ' fl ~ ~ Tote) Postage & Fees ~ ~~ C] ~ O ent TO n ~ Or.-'' y or POt Brur Na. ~"F)`,;l ~/./F..F I )T- UI ~J / .33 EXHIBIT "A" RECEIVED MAC( 1.6 2006 LINDA I. PEIFER, Plaintiff v. TIMOTHY PEIFER, and TARA FINKBONER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0.06-1743 CIVIL TERM CIVIL ACTION -LAW IN CUSTODY ORDER OF COURT AND NOW, this ~~ day of May, 2006, a hearing is scheduled for Courtroom Number 1 of the Cumberland County Courthouse, on the ~/,a~' day of ~~~-- , 200, at 930 o'clock ~.M., at which time testimony will be taken. For the purposes of the hearing, the paternal grandmother, Linda I. Peifer, 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. Dist: ~ A. Etter Dissinger, Esq., 28 N. 32"d Street, Camp Hill, PA 17011 ra Finkboner, 2119 Wentworth Drive, Camp Hill, PA 17011 /Yl~mothy Peifer, 335 Market Street, Apt. 3A, Harrisburg, PA 17101 J 0''~ r.-- ,.,,, - _. :.,` ..~ ~ ~~~tt ~jj' r i~ ~~ ___ `'~`^ ~~ ~ ' =fit ~ ' y t ~~ _- i_._ sy A r~• IJ-L~S ~ •~~~'~- ~-- ..C~ ~, v Linda I. Peifer, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY OF PENNSYLVANIA vs. Timothy Peifer, NO. 06-1743 and Tara Finkboner, Defendants CIVIL ACTION - IN CUSTODY PETITION TO NITHDRAW APPEARANCE AND NOW COMES, Mary A. Etter Dissinger, counsel for Linda I. 'Peifer and requests permission to withdraw as counsel and in !'support thereof avers as follows: 1. Petitioner is Mary A. Etter Dissinger, an attorney associated with Dissinger and Dissinger. 2. Respondent is Linda I. Peifer, Plaintiff in the within action. 3. Petitioner entered her appearance on behalf of Plaintiff on March 24, 2006, by filing a Petition for Partial Custody and Visitation. 4. On June 13, 2006, Petitioner requested, by letter, that Respondent pay her overdue balance in full before the July 21, 2006, hearing date that is scheduled. (See attached Exhibit "A"). 5. In the same letter of June 13, 2006, Petitioner offered Ms. Peifer the option of transferring $252.96 from her trust account with Dissinger & Dissinger to be applied to her outstanding balance. 6. As of July 3, 2006, Petitioner has not received any indication from Plaintiff that she intends to pay the balance, as she agreed to in the engagement letter she signed the Petitioner was retained. (See attached Exhibit "B"). 7. As of July 3, 2006, Petitioner has not received any indication from Plaintiff that she intends to transfer the trust account money to be applied to her current bill. 9. The engagement letter signed by the client with Dissinger and Dissinger permits Dissinger and Dissinger to withdraw as counsel for nonpayment. WHEREFORE, Petitioner requests that a Rule be issued upon Plaintiff and Defendants herein to show cause why the relief requested should not be granted. Respectfully Submitted, DISSINGER & ~ ~~~~~ Mary A. Etter Dissinge Esquire Petitioner Supreme Court ID# 27736 28 North Thirty-second Street Camp Hill, PA 17011 717-975-2840 VERIFICATION I, Mary A. Etter Dissinger, verify that the foregoing facts are true and correct. I understand that false statements herein are ,made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Mary A. fitter Dissinge DISSINGER DISSINGER Camp Hill Offices: 717.97~.2840/voice • 717.975.3924/fax Marysville Offices: 717.957.3474/voice • 717.957.231G/fae June 13, 2006 Linda Peifer 517 Warren Street Lemoyne, PA 17043 Dear Ms. Peifer: It has come to m~ attention that the costs of the custody matter are extremely difficult for you to handle. Since you paid the retainer, you have incurred a balance now of $626.00. You made a small payment of $50.00 on June 2, 2006.. The past due balance needs paid in full and a $500.00 credit needs to be gut on your account before the custody hearing on July 21, 2006. If you are unable to pay the balance due and owing with VISA or MasterCard, we need to make some other financial arrangements. You have a balance remaining in your trust account of $252.96, which you can apply to the past due balance. If you have any questions, please give me a call. Very truly yours, Mary A. Etter Dissirger Attorney at Law hLAED : las File 4-06-503 EXHIBIT iiAn Attorneys nt Lnu~ 23 r`;oah Thim-Szcood Street • Camp Hill; PA 17011 #00 South Sure Road • btarvsvifle, 8.117013 ~ ,~ DI~SINGER, ' DISSINGER Camp Hill Offices: 717.975.2840/voice • 717.975.3924/Fax Marysville Offices: 717.957.3474/voice • 717.957.2316/fax February 1, 2006 Linda Peifer 517 Warren Street Lemoyne, PA 17043 , Dear Ms. Peifer: You have asked our firm to represent you in a custody matter. This letter sets forth the agreement concerning our representation of you. Please sign :the enclosed agreement and return it to our office as soon as possible. We are unable to tell you specifically how much your case will cost through its conclusion. Therefore, it is necessary to represent you on an hourly rate basis. Due to the nature of this matter and the impossibility of determining what course the matter may take, we are unable to establish a flat fee for our professional services. We cannot undertake to do any work on your case until we receive the enclosed agreement signed by you and the non-refundable, retainer of $1500.00. Our retainer is a minimum fee and not refundable. Our billings are based on the present hourly rates set forth in the attached fee schedule. Our hourly rates are adjusted every January. When the hourly rates are adjusted you will be notified. You are also responsible for paying all costs related to your case. We will require you to deposit 400.00 in addition to the retainer to cover these costs. Costs are our out-of-pocket expenses, such as filing fees, process server fees, transcripts, photocopies, long distance telephone calls, travel mileage, investigators, appraisers, and accountants. These costs will also be itemized and billed on a periodic basis. We will bill you EXHIBIT 28 Nonh "B" ['A 17011 400 S 17053 monthly for legal services and costs ahd expect payment within thirty (30) days of the date of the bill. Our statements are generally premised upon the amount of professional time expended by the attorneys and staff in our office for such services as conferences, telephone conferences, research, court appearances, travel, and other miscellaneous legal services. In addition, other considerations may enter into the setting of a fee, such as: the novelty and difficulty of the issues involved; the result achieved; the amount in dispute; the necessity of a specialized skill requisite to perform the legal service properly; the likelihood that the acceptance of a particular employment will preclude other employment by the attorney; time limitations imposed by the client or by the circumstances; the nature and length of the professional relationship with the client; the area of law involved; and the interruption of other work in progress. It is impossible to determine in advance the amount of time that will be needed to complete your case. We will keep you fully informed of conferences, telephone calls, drafting of documents, research, court time and necessary travel time. We will terminate our attorney-client relationship for non-payment of fees or costs which are not paid within 30 days of billing. If your retainer has been exhausted and there is still considerable work to be done on your case, you may be asked to replenish your retainer and costs before our legal work continues. In the event that any bill from the law firm remains unpaid beyond a ninety (90) day period, you agree that the law firm may withdraw its representation, at the option of the firm. In the event that an .action is pending, and absent your consent, an application must be made to the court for such withdrawal. Where the fee is unpaid for the period set forth above, you acknowledge that in connection with any such withdrawal application, the account delinquency shall be good cause for withdrawal. We will keep you informed as to the progress of your case. We will send you copies of all papers coming in and going out of our offices, including correspondence, pleadings and other documents. If we are unavailable when you telephone, your call will be returned with reasonable promptness. There will be times when we will be in Court or at meetings or in conference, which will preclude us from returning your call as quickly as you might like, but we .shall do our best to return your telephone calls as soon as we can. At such times, please~~fee1 confident to talk with our secretaries. If you are passing on information, they can deliver it to us without the necessity of your waiting to have us return the call. If you have a question that requires an answer from us, it is far easier for them to obtain the background from you, bring the matter to our attention when we are free, and then have a response for you. If it is necessary for you to speak with us directly, we will attempt to return your call as soon as possible. Every effort will be made to expedite-your case promptly and efficiently according to the highest legal and ethical standards. Please acknowledge receipt of the enclosed agreement and your acceptance of its terms by signing the enclosed copy and returning it to us so that we will have a mutual memorandum of our understanding. The other copy we have enclosed is for you to keep for your records. We suggest that you keep your copy of the engagement letter in the folder we have provided to you, along with any future correspondence from this office. We have implemented a policy that ten years from the closing of a file, it will be destroyed. We will send you copies of all correspondence and pleadings as your case progresses. If, at the conclusion of your case, you find you do not have some document from your case and want it, let us know. We will send you a reminder near the end of the ten-year period that your file will be destroyed so you have another opportunity to make sure your records -~ are complete. Therefore, you will neecl to keep us apprized of your current address and telephone numbers at all times. Respectfully, DISSINGER and DISSINGER Mary A. Etter Dissinger Attorney at Law MAED:amp Encl. 2 File 4-06-503 I agree to and accept all of the above terms this ala~l~f'ay of . 2006. Lin I. Peifer ~1 STANDARD FEE FOR SERVICES ON AN HOURLY BASIS Job Title Work Performed William C. Dissinger Mary A. Etter Dissinger In Office William C. Dissinger At Hearing/In Court Mary A. Etter Dissinger or Adversary Proceeding Associate Associate Law Clerk/Paralegal Secretary Computer Operator Electronic research Copies Faxed material E-mails ' In Office At Hearing/In Court or Adversary Proceeding All , Secretarial Micro Computer/Word Processing Use of standard electronic research package Outside standard package Sent or received Sent or received Fees are based on time, portal-to-portal meetings, conferences, and hearings. Hourly Rate 5220.00 $280.00 $160.00 $220.00 $ 95.00 $ 60.00 $ 60.00 $150.00 at cost $ .10 per page $ 1.00 per page $ 1.00 each for out of office Incurred expenses or costs, such as filing fees, doctors' fees, medical reports, expert fees, etc., are billed at cost. Statements are sent every thirty (30) days. Payment is expected by the date indicated on the statement. All accounts with balances outstanding after thirty (30) days are charged. interest at a rate of 1.5~ per month on the outstanding balance. Outstanding balances will not ba carried past ninety (90) days. Please remit all payments to: D I S S I N G E R & D I S S I N G E R Attorneys At Law 400 South State Road Marysville, PA 17053 717-957-3474 Linda I. Peifer, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY OF PENNSYLVANIA vs. . (Timothy Peifer, NO. 06-1743 and Tara Finkboner, Defendants CIVIL ACTION - IN CUSTODY CERTIFICATE OF SERVICE I, Mary A. Etter Dissinger, Esquire, do hereby certify that a copy of the foregoing document has been duly served upon Linda I. Peifer, Plaintiff, Timothy Peifer, Defendant, and Tara Finkboner, Defendant, by depositing same in the United States Mail, postage prepaid, addressed as follows: Linda I. Peifer 517 Warren Street Lemoyne, PA 17043 Timothy Peifer 335 Market Street Apt. 3 A Harrisburg, PA 17101 Tara Finkbinder 2119 Wentworth Dr. Camp Hill, PA 17011 Mary A. Etter Dissinger .~.~ " ) t 'i l .., ~ .-i (. '_' cllo-. ~ r^ ' - jY1 v `< .~A• ~,,~~~~:1 ~UL 2~ ~~uG Linda I. Peifer, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY OF PENNSYLVANIA vs. Timothy Peifer, NO. 06-1743 and Tara Finkboner, . Defendants CIVIL ACTION - IN CUSTODY RIILE TO $AOW CAIISE AND NOW, this ~ day of ~, 2006, a rule is issued upon Linda I. Peifer, Plaintiff, Timothy Peifer, Defendant, and Tara Finkboner, Defendant, to show cause why Dissinger and Dissinger should not be allowed to withdraw their appearance on behalf of Linda I. Peifer. Rule returnable ~_ days after service. BY THE COURT: ..> ~` _- - ~i'_ :'J ~a, _ I- _ ~e :_) ~ J c IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Linda I. Peifer, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY OF PENNSYLVANIA vs. . Timothy Peifer, NO. 06-1743 and Tara Finkboner, Defendants CIVIL ACTION - IN CUSTODY MOTION TO MAKE RULE ASSOLIITE AND NOW COMES Mary A. Etter Dissinger and requests the Court to enter an Order directing the withdrawal of Dissinger & Dissinger as counsel for Linda Peifer and in support of that Motion avers as follows: A Motion for Leave to Withdraw as counsel was filed with this able court on July 7, 2006. The Court issued a Rule to Show Cause on July 13, 2006, turnable two days after service. 3. Petitioner sent a copy of the Rule to Show Cause to all parties on July 17, 2006, as evidence by Exhibit A, attached hereto. Linda Peifer agreed to the withdrawal of Dissinger & Dissinger her counsel as evidenced by Exhibit B, attached hereto. 5. Tara Finkboner has no objections to Dissinger & Dissinger withdrawing as counsel as evidenced by Exhibit C, attached hereto. 6. No response has been received from Timothy Peifer, the other party to this action. '6. More than two days has passed. WHEREFORE, Petitioner requests the Court to enter an Order allowing the withdraw of Dissinger & Dissinger. Respectfully Submitted: AND DISSINGER Mary A. Etter Dissinger Attorney for Plaintiffs Supreme Court I.D. 27736 28 North Thirty-second Street Camp Hill, PA 17011 (717) 975-2840 VERIFICATION I, Mary A. Etter Dissinger, Esquire, verify that the ''statements made in this Motion are true and correct. I understand that false statements herein are made subject to the penalties of '18 Pa.C.S. §4904 relating to unsworn falsification to authorities. ~~~ ~ ~~ Mary A. Etter Dissinger, Pe tioner IJ SINGER ~' DISSINGER Camp Hill Offices: 717.975.2840/voice • 7I7.975.3924/fax Marysville Offices: 717.957.3474/voice • 717.957.23LG/fax July 17, 2006 Linda Peifer 517 Warren Street Lemoyne, PA 17043 Timothy Peifer 335 Market Street Apt. 3A Harrisburg, PA 17101 Mrs. Tara Finkboner 2119 Wentworth Dr. Camp Hill, PA 17011 Dear Ms. Peifer, Mr. Peifer, & Mrs. Finkboner: Enclosed find an Rule to Show Cause why Dissinger & Dissinger should not be allowed to withdraw from this custody case, signed by Judge Oler. Please be advised that it is returnable to the Court two (2) days from the date of this letter. If you have no objections, there is no need to respond. If you can show a reason why this withdrawal should not be allowed, you must notify the Courts within the next two (2) days. You must also carbon copy my office of the same, as well as the other parties involved. Very truly yours, Mary A. Etter Dissinger Attorney at Law MAED:amp encl: 1 File 4-06-503 Attorneys nt Lnty 23 Nor[h Thim~-Szcond S«ezt • Camp Hili, PA 1701[ 400 South S[are Road • Marysville. PA 17053 EXHIBIT 1 R~~E~VE~ ~uL : :~ C~ Linda I. Peifer, Plaintiff vs. Timothy Peifer, and Tara Finkboner, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA NO. 06-1743 CIVIL ACTION - IN CUSTODY RULE TO SHOW CAUSE AND NOW, this ~ day of 2006, a rule is issued upon Linda I. Peifer, Plaintiff, Timothy Peifer, Defendant, and Tara Finkboner, Defendant, to show cause why Kissinger and Dissinger should not be allowed to withdraw their appearance on behalf of Linda I. Peifer. Rule returnable ~ days after service. BY THE COURT: ~~ ~ Zc.>la.fc ~ ~~, 7~ ~ J. TRUE DOPY FROM RECORU ~a Tacthaoay wtrraot,~t,~~unbo sat my t~.a.~a aed t!-a cad a saW:O~-.~IisM, Pa. i~i;r5 /~/~ dar _~ ~ ~ 7YU.C(L~ ~. !_~_(o-~ ------ ------- ----- --- - - ------_ - _---- ----- __ -- -------------------- _ _ ~ Gi~m ~4~c~Jt.u ~t~2„ Se~'uc~pS o~_ - _ _ _ - ' -- - ~ ' ~ - _ -F 6 t _ _-~~rUY1 WY1 C.c.0.Y _ J 4~:1~~K.,~ _ - - -- - -- _ __ - -__t - -- -_ _--- -_ _---- -- - --- ~ _ -- - --- EXH21BIT IJ EXHIBIT G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Linda I. Peifer, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY OF PENNSYLVANIA vs. Timothy Peifer, NO. 06-1743 and Tara Finkboner, Defendants CIVIL ACTION - IN CUSTODY CERTIFICATE OF SERVICE I, Mary A. Etter Dissinger, Esquire, do hereby certify that a copy of the foregoing document has been duly served upon Linda I. Peifer, Plaintiff, Timothy Peifer, Defendant, and Tara Finkboner, Defendant, by depositing same in the United States Mail, postage prepaid, addressed as follows: Linda I. Peifer 517 Warren Street Lemoyne, PA 17043 Timothy Peifer 335 Market Street Apt. 3 A Harrisburg, PA 17101 Tara Finkboner 2119 Wentworth Drive Camp Hill, PA 17011 Mary A Etter Dissinger r-` ` -~1 t ~j .~ ~u~ z i 200 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Linda I. Peifer, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY OF PENNSYLVANIA vs. Timothy Peifer, and Tara Finkboner, Defendants NO. 06-1743 CIVIL ACTION - IN CUSTODY ORDER OF COURT AND NOW, this Gls~day of Sv~ 2006, no objection to the Petition of Dissinger & Dissinger o withdraw being filed, the appearance of Dissinger & Dissinger as counsel for Linda Peifer is herebv withdrawn. BY THE COURT, By: ~. esley O1 r, Jr., Judge [~G ~ i ~, ~r: ~ .~;~ ~.is~ A, . I R~ Jf 1 :. ~ ~ J ~., ~~~~.. ,~ , LINDA I. PEIFER, , Plaintiff v. . TIMOTHY PEIFER and TARA FINKBONER Defendants TARA PEIFER, Plaintiff v. TIMOTHY PEIFER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0.06-1743 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0.04-191 CIVIL TERM IN RE: PETITION FOR PARTIAL CUSTODY AND VISTTATION BEFORE OLER, J. ORDER OF COURT AND NOW, this 24th day of July, 2006, upon consideration of the Petition for Partial Custody and Visitation filed by Linda I. Peifer with respect to her granddaughter, Lillian Peifer (d.o.b, April 1, 2002), and following a heazing on July Zl, 2006, at which Petitioner, the child's mother, Tara Finkboner, and the child's father, Timothy Peifer, represented themselves, it is ordered and directed as follows: 1. The mother shall have legal custody and primary physical custody of the child; 2. The father shall have such periods of temporary or partial physical custody of the child as the parties agree; and 3. Petitioner shall have temporazy or partial physical custody of the child on alternating Sundays from 10:00 a.m. unti17:00 p.m. ~ ' _ ~ !'.I e.. ... ,. ; 4. Nothing herein is intended to preclude the parties from deviating from the custodial terms of this order by mutual agreement. Tara Finkboner 2119 Wentworth Drive Camp Hill, PA 17011 Timothy S. Peifer 335 Market Street Apartment 3A Harrisburg, PA 17101 m~.~A ~.~~ dG .t~2ct,a Lemoyne, PA 17043 / Courtesy Copy: Mary Etter Dissinger, Esq. 28 N. 32"d Street Camp Hill, PA 17011 Linda Peifer 517 Warren Street BY THE COURT, TARA PEIFER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA By the Court, v CIVIL ACTION - LAW 2004-191 CIVIL TERM TIMOTHY PEIFER, Defendant IN CUSTODY LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v Cj~(7IL ACTION -LAW 6-1743 CIVIL TERM TIMOTHY PEIFER and TARA FINKBONER, Defendants IN CUSTODY IN RE: CASES CONSOLIDATED AND NOW, this 21st day of July, 2006, the case at No. 04-191 Civil Term is consolidated with the case at No. 06-1743 Civil Term for purposes of the custody aspects of both cases. ~''~ara Finkboner 2119 Wentworth Drive Camp Hill, PA 17011 ORDER OF COURT ~a Peifer 517 Warren Street Lemoyne, PA 17043 /timothy S. Peifer 335 Market Street, Apartment 3A Harrisburg, PA 17101 mae n ~~ ~~~~ w~ ~`'~° ~`~' ~ a° o~ y~''' ~' pVA nk~~c~' ~v ~~, C TARA PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW 2004-191 CIVIL TERM TIMOTHY PEIFER, O~, v CI IL ACTION -LAW :1793 CIVIL TERM TIMOTHY PEIFER and TARA FINKBONER, Defendants IN CUSTODY IN RE: PETITION FOR PARTIAL CUSTODY AND VISITATION Defendant IN CUSTODY LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA ORDER OF COURT AND NOW, this 21st day of July, 2006, upon consideration of the Petition for Partial Custody and Visitation filed by Linda I. Peifer with respect to her grandchild, Lillian Peifer (date of birth, April 1, 2002), and following a hearing, the record is declared closed, and the matter is taken under advisement. By the Court, /Tara Finkboner 2119 Wentworth Drive Camp Hill, PA 17011 Timothy S. Peifer 335 Market Street, Apartment 3A y Harrisburg, PA 17101 :mae n~ O~ F , 517 Warren Street Lemoyne, PA 17093 ~~ ~fl ~0 Q~ F~ 04 b~~6 ~V LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. :CIVIL ACTION -LAW TIMOTHY PEIFER and TARA FINKBONER, NO. 06-1743 CIVIL TERM Defendants APPLICATION FOR SUPERSEDERS AND NOW, comes the Defendant, Taza Finkboner, by and through her Attorneys, Foreman & Foreman, P.C., and Joseph D. Cazaciolo, Esquire and hereby makes application to this Honorable Court to grant a Supersedeas of its order dated July 24~', 2006, making the following averments in support thereof: 1. Defendant, an adult individual, appeared pro se for a custody hearing on July 21, 2006. 2. Defendant, Timothy Peifer, an adult individual, appeared pro se for a custody hearing on July 21, 2006. 3. Plaintiff, Linda I. Peifer, an adult individual, appeazed pro se for a custody hearing on July 21, 2006. 4. After hearing on July 21, 2006, an Order of Court, dated July 24, 2006, was entered granting Plaintiff periods of "temporary or partial physical custody." (see Order of Court attached and incorporated herein as Exhibit "A"). 5. On August 3, 2006, Defendant, Taza Finkboner, filed a Notice of Appeal indicating her desire to have the Superior Court exercise appellate review. 6. Pending such appellate review, it would be damaging to allow Plaintiff, Linda I. Peifer to have periods of partial physical custody as ordered. 7. Plaintiff's rights will not be prejudiced as she can still maintain a relationship with the child through Defendant, Timothy Peifer. 8. Defendant, Tara Finkboner's, rights will be prejudiced as she will lose periods of custody to anon-custodial parent. 9. The child in this case has rarely seen Plaintiff, and will be very confused by the application of said order. 10. Potential harm could be done to child if the Superior Court reverses the decision of this Honorable Court and a Supersedeas is not granted. WHEREFORE, Defendant, Tara Finkboner, respectfully requests this Honorable Court grant a Superseadeas of its order dated July 24, 2006 pending Appellate Review. Date: ~ ~ a Harrisburg, Pennsylvania 17101-2015 ID # 90919 Tel. (717) 236-9391 LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. :CIVIL ACTION -LAW TIMOTHY PEIFER and TARA FINKBONER, : NO. 06-1743 CIVIL TERM Defendants PROOF OF SERVICE I hereby certify that I am this day serving the foregoing document upon the person and in the manner indicated below, which service satisfies the requirements of Pa. R. A. P. 121: Service by first class mail addressed as follows: Linda I. Peifer 517 Warren Street Lemoyne, Pa 17043 Date:O ~ ~ ~ Harrisburg, Pennsylvania 17101-2015 ID # 90919 Tel. (717) 236-9391 Timothy Peifer 335 Mazket Street, Apt 3A Harrisburg, PA 17101 EXHIBIT "A" LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW TIMOTHY PEIFER and TARA FINKBONER, Defendants NO. 06-1743 CIVIL TERM **** TARA PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW TIMOTHY PEIFER, Defendant NO. 04-191 CIVIL TERM IN RE: PETITION FOR PARTIAL CUSTODY AND VISITATION BEFORE OLER, J. ORDER OF COURT AND NOW, this 24th day of July, 2006, upon consideration of the Petition for Partial Custody and Visitation filed by Linda I. Peifer with respect to her granddaughter, Lillian Peifer (d.o.b. April 1, 2002), and following a hearing on July 21, 2006, at which Petitioner, the child's mother, Tara Finkboner, and the child's father, Timothy Peifer, represented themselves, it is ordered and directed as follows: 1. The mother shall have legal custody and primary physical custody of the child; 2. The father shall have such periods of temporary or partial physical custody of the child as the parties agree; and 3. Petitioner shall have temporary or partial physical custody of the child on alternating Sundays from 10:00 a.m. unti17:00 p.m. i ~ 4. Nothing herein is intended to preclude the parties from deviating from the custodial terms of this order by mutual agreement. BY THE COURT, / -~ ~ ~V - J{j-~Vesley Ol ' - ., J. Ta Finkboner 19 Wentworth Drive Camp Hill, PA 17011 Timothy S. Peifer 335 Market Street Apartment 3A Harrisburg, PA 17101 Linda Peifer 517 Warren Street Lemoyne, PA 17043 Courtesy Copy: Mary Etter Dissinger, Esq. 28 N. 32°d Street Camp Hill, PA 17011 T~~~3~ ~~ ~l~ ~^~t~ li! T~'q0~ 1Mrred,l irti~ uniaa sdt ~},+ 1f~d ~d tt,. c.~ .r s>aYl c3wc~,~t r~r~, ~.. r~~ ~~~,~, 1~4 ~- ,._ Prothont~r~~, ~~ C -~i ~. ....i L„' t _ .. _ ry L1NDA I. PEIFER, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. CNIL ACTION -LAW TIMOTHY PEIFER and TARA FINKBONER, NO. 06-1743 CNIL TERM Defendants NOTICE OF APPEAL Notice is hereby given that. Tara Finkboner, Defendant in the above-captioned matter, hereby appeals to the Superior Court of Pennsylvania from the order entered in this matter on this 24'h day of July, 2004. This Order has been entered in the Docket as evidenced by the attached copy of the docket entry. Date: dfr r~3- oG eph D. Cazaciolo, Esquire oreman & Foreman, P.C. 12 Mazket Street, 6`s Floor Harrisburg, Pennsylvania 17101-2015 ID # 90919 Tel. (717) 236-9391 LINDA I. PEIFER, : 1N THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. :CIVIL ACTION -LAW TIMOTHY PEIFER and TARA FINKBONER, NO. 06-1743 CIVIL TERM Defendants PROOF OF SERVICE I hereby certify that I am this day serving the foregoing document upon the person and in the manner indicated below, which service satisfies the requirements of Pa. R. A. P. 121: Service by first class mail addressed as follows_ Linda I. Peifer 517 Warren Street Lemoyne, Pa 17043 The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Squaze Carlisle, PA 17013 Court Stenographer Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Timothy Peifer 335 Mazket Street, Apt 3A Harrisburg, PA 17101 Court Administrator's Office Cumberland County Courthouse One Courthouse Squaze Cazlisle, PA 17013 Date: GSs' Via' oG J,ef~eph D. Cazaciolo, Esquire foreman & Foreman, P.C. 112 Mazket Street, 6`s Floor Harrisburg, Pennsylvania 17101-2015 ID # 90919 Tel. (717) 236-9391 LINDA I. PEIFER, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. :CNIL ACTION -LAW TIMOTHY PEIFER and TARA FINKBONER, : NO. 06-1743 CNIL TERM Defendants ORDER FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, the official court reporter is hereby ordered to produce, certify and file the transcript in this matter in connection with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. Date: O~ O~- ~C ~eph D. Caraciolo, Esquire oreman & Foreman, P.C. 112 Market Street, 6`h Floor Harrisburg, Pennsylvania 17101-2015 ID # 90419 Tel. (717).236-9391 PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2006-01743 PEIFER LINDA I (vs) PEIFER TIMOTHY ET AL Reference No..: Filed........: 3/24/2006 Case Type.....: COMPLAINT - CUSTODY Time.........: 2:08 Judgment..... 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. O/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******,r**,r*~,r,r~*,r***,r******:r,r*****,r,r**,r**,r**,r,r**,r**«**,r**,r:r******,r~*+******,r*,r*« General Index Attorney Info PEIFER LINDA I PLAINTIFF 517 WARREN STREET LEMOYNE PA 17043 PEIFER TIMOTHY DEFENDANT 335 MARKET STREET APARTMENT 033 HARRISBURG PA FINKENBINDER TARA DEFENDANT 2119 WENTWORTH DRIVE CAMP HILL PA 17011 r*,e,r*****,+****+******:r******,r**~**********:r*********,r**,r**:r*,r*,r**,r~,r,r~*****«**«* * Date Entries r**,r,r**,r*****:r*****+******,r,r,r*,r,r*,r******«*~***:r~**~*+,r,r,r,r*+,r***,r**,r**,r**,r~,r*,r**:r - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 3/24/2006 PETITION FOR PARTIAL CUSTODY AND VISITATION ------------------------------------------------------------------- 3/30/2006 ORDER OF COURT - DATED 03-29-06 - IN RE: PRE-HEARING CUSTODY CONFERENCE ON OS-O5-06 AT 8:30 AM AT MDJ MANLOVE 1901 STATE ST CAMP HILL - FOR THE COURT MELISSA P GREEVY ATTY CUSTODY CONCILIATOR - COPIED AND MAILED 03-30-06 ------------------------------------------------------------------- 4/28/2006 AFFIDAVIT OF MAILING - COPY OF CUSTODY COMPLAINT - BY MARY A ETTER DISSINGER ATTY ------------------------------------------------------------------- 4/28J2006 AFFIDAVIT OF MAILING - COPY OF CUSTODY COMPLAINT - BY MARY A ETTER DISSINGER ATTY ------------------------------------------------------------------- 5/19/2006 ORDER OF COURT - DATED 05-18-06 - IN RE: HEARING 07-21-06 AT 9:30 AM IN CR 1 OF CUMB CO COURTHOUSE - BY J WESLEY OLER JR J - COPIED AND MAILED 05-19-06 ------------------------------------------------------------------- 7/07/2006 PETITION TO WITHDRAW APPEARANCE BY MARY A ETTER DISSINGER ATTY FOR PLFF ------------------------------------------------------------------- 7/14/2006 RULE TO SHOW CAUSE - 07-13-06 - IN RE: RULE ISSUED UPON PLFF LINDA I PEIFER - DEFT TIMOTHY PEIFER & DEFT TARA FINKBONER TO SHOW CAUSE WHY DISSINGER AND DISSINGER SHOULD NOT BE ALLOWED TO WITHDRW THEIR APPEARANCE ON BEHALF OF PLFF - RULE RETURNABLE 2 DAYS AFTER SVC - BY J WESLEY OLER JR J ------------------------------------------------------------------- 7/21/2006 MOTION TO MAKE RULE ABSOLUTE - MARY DISSINGER ESQ FOR PLFF ------------------------------------------------------------------- 7/21/2006 ORDER OF COURT - 07-21-06 - IN RE: CUSTODY - APPEARANCE OF DISSINGER & DISSINGER AS COUNSEL FOR LINDA PEIFER IS HEREBY WITHDRAWN - BY J WESLEY OLER JR J ------------------------------------------------------------------- 7/24/2006 ORDER OF COURT - 07-24-06 - IN RE: PETITION FOR PARTIAL CUSTODY AND VISITATION - BY J WESLEY OLER JR J - COPIES MAILED 07-25-06 ------------------------------------------------------------------- 7/27/2006 ORDER OF COURT - 07-21-06 - IN RE: CUSTODY-CASE AT 04-191 CIVIL TERM IS CONSOLIDATED WITH THE CASE AT 06-1743 CIVIL TERM FOR PURPOSES OF THE CUSTODY ASPECTS OF BOTH CASES - BY J WESLEY OLER JR J - COPIES MAILED 07-27-06 ------------------------------------------------------------------- 7/27/2006 ORDER OF COURT - 07-21-06 - IN RE: CUSTODY - BY J WESLEY OLER JR J - COPIES MAILED 07-27-06 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - **,r,r******:r**,r**,r**,r*,r*********x*+**+,r**,r,r,r,r**********W*,r*,r*,r,r*,r***,r**,r********* PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2006-01743 PEIFER LINDA I (vs) PEIFER TIMOTHY ET AL Filed........: 3/24/2006 Time.........: 2:08 Execution Date 0/00/0000 Jury Trial.... Disposed Date. 0/00/0000 Higher Crt 1.: Higher Crt 2.: Refereynyppce No..: Judemente::::.: COMPLAINT 00CUSTODY Judge Assigned: OLER J WESLEY JR Disposed Desc.: ------------ Case Comments ------------- * Escrow Information * Fees & Debits Bed Bal ymts/Add P * * 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 JCP FEE 10.00 10.00 .00 CUSTODY FEE 5.20 5.20 .00 CUSTODY FEE-CO 1.30 - 1.30 --------- --- .00 --------- ------------- - 112.00 112.00 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE CyO/ PrYn, F~'^. ~~~ RECORp %Ai 1~~~~ V,I~iF e~~r ` iii} -. ~~~~~ aril th6 sE'' f saiii ~~,'. ~. arlisle, ~. 1'hi ay a e Ihonotmq 0 O d b ,... „~ ., l LL, -,-: ~: LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION -LAW NO. 06-1743 CIVIL TIMOTHY PEIFER and TARA FINKBONER, Defendants ORDER OF COURT AND NOW, this 8`h day of August, 2006, upon consideration of the Application for Supersedeas filed on behalf of Defendant Tara Finkboner, the application is denied. BY THE COURT, Linda I. Peifer (Pro Se) 517 Warren Street, Lemoyne, PA 17043 /lYmothy Peifer (Pro Se) 335 Market Street, Apt. 3A Harrisburg, PA 17101 ~seph D. Caraciolo, Esquire 1 112 Market Street, 6`" Floor ~ Harrisburg, PA 17101 Attorney for Defendant Tara Finkboner Courtesy Copy: 4ary Etter Dissinger, Esquire 28 N. 32"d Street Camp Hill, PA 17011 .o ~~ - ~. :rlm ,~ ~'i(~bAI,lSNN3d 8 I ~ i I W~ 6- 9titi 9002 ,tdb'1Gti~~-i1Qt~~! ~Hl ~ 3~La~-(7311~ »:oaa.M. Appeal Docket Sheet Docket Number: 1319 MDA 2006 Page 1 of 3 August 8, 2006 d(o-1?~13 Civl~ Superior Court of Pennsylvania Linda Peifer v. Timothy Peifer and Tara Finkboner Appeal of: Tara Finkboner Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: August 8, 2006 Journal Number: Case Category: Civil Awaiting Original Record CaseType: Civil Action Law Consolidated Docket Nos.: Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received Related Docket Nos.: SCHEDULED EVENT Next Event Due Date: August 22, 2006 Next Event Due Date: September 18, 2006 816/2006 3023 11:04 A.M. ., Appeal Docket Sheet Docket Number: Page 2 of 3 August 8, 2006 1319 MDA 2006 Superior Court of Pennsylvania COUNSEL INFORMATION Appellant Finkboner, Tara Pro Se: Appoint Counsel Status: IFP Status: No Appellant Attorney Information: Attorney: Caraciolo, Joseph Dominick Bar No.: 90919 Law Firm: Address: Foreman & Foreman PC 112 Market St 6th FI Vet Bldg Harrisburg, PA 17101 Phone No.: (717)236-9391 Fax No.: (717)236-6602 Receive Mail: Yes E-Mail Address: joseph@foreman-foreman.com Receive E-Mail: Yes Appellee Peifer, Linda L. Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information: Attorney: Peifer, Linda Bar No.: Law Firm: Address: 517 Warren Street Lemoyne, PA 17043 Phone No.: Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No Appellee Peifer, Timothy Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information: Attorney: Peifer, Timothy Bar No.: Law Firm: Address: 335 Market Street Apt 3 A Harrisburg, PA 17101 Phone No.: Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No FEE INFORMATION 8/8/2006 3023 11:04 A.M. . s Appeal Docket Sheet Docket Number: 1319 MDA 2006 ~' Page 3 of 3 August 8, 2006 Superior Court of Pennsylvania .~~- _~ Paid Fee Date Fee Name Fee Amt Amount Receipt Number 8/8/06 Notice of Appeal 60:00 60.00 2006SPRMD000697 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: July 24, 2006 Judicial District: 9 Date Documents Received: August 8, 2006 Date Notice of Appeal Filed: August 3, 2006 Order Type: Order Entered OTN: Judge: Oler, Jr., J. Wesley Lower Court Docket No.: 06-1743 Civil Term Judge ORIGINAL RECORD CONTENTS ONginal Record Item Date of Remand of Record: Filed Date BRIEFS Content/Description DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed ey August 8, 2006 Notice of Appeal Filed Appellant Finkboner, Tara August 8, 2006 Docketing Statement Exited (Civil) Middle District Filing Office BIB/2006 3023 r 4~ "t}~yy~{{ ~ ~:~1 9 ~ m!'! `/ l ~ri- . ~ _ a p ~~ ~ ~~ ~2 ~ w LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW TIMOTHY PEIFER and TARA FINKBONER, Defendants N0.06-1743 CIVIL TERM ORDER OF COURT AND NOW, this 14~` day of August, 2006, upon consideration of the Notice of Appeal filed in the above-captioned matter, Appellant is DIRECTED, pursuant to Pa. R.A.P. 1925(b), to file of record in this Court and to serve upon the undersigned judge a concise Statement of Matters Complained of on Appeal no later than 14 days after entry of this Order. Linda I. Peifer 517 Warren Street Lemoyne, PA 17043 Plaintiff, pro Se Timothy Peifer 335 Market Street Apt. 3A Harrisburg, PA 17101 Defendant, pro Se Joseph D. Caraciolo, Esq. 112 Market Street 6~' Floor Harrisburg, PA 17 ] 01-20 Attorney for Defendant Taza Finkboner ~-l~v-O(o ~'~-7-e.e~ ~vu-...~-~-e~. ~~ BY THE COURT, ~/3lVtJlti,~S~ iP13d h ! ~ i l I~~ 9 ! ~flti 40UZ A~1C~#dvHiC~d 3H1.~0 ~71~:!C~-C1311~ LINDA I. PEIFER, Plaintiff vs. TIMOTHY PEIFER and TARA FINKBONER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 06-1743 Civil Term CIVII, ACTION -LAW TARA PEIFER, Plaintiff vs. TIMOTHY PEIFER Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 04-191 Civil Term CIVII., ACTION -LAW PLAINTIFF LINDA I. PEIFER' MOTION FOR CONTEMPT. SANCTIONS AND ATTORNEY'S FEES AND NOW, comes Plaintiff, Linda I. Peifer, by and through her attorney, Mark K. Emery, Esquire, and files this Motion for Contempt, Sanctions and Attorney's Fees as follows: 1. 2. 3. Plaintiff Linda I. Peifer, (hereinafter "Peifer"), is the grandmother of a minor child, Lillian Peifer. Defendant Tara Finkboner, (hereinafter "Finkboner"), is the natural mother of the minor child. After a full hearing on this matter, by Order dated July 24, 2006, the Honorable Wesley J. Oler issued an Order of Court granting Peifer visitation rights to the minor child on alternating Sundays from 10:00 a.m. until 7:00 p.m. A copy of such Order is attached and incorporated fully herein as Exhibit "A." 1 4. From the date of the Order, Finkboner has failed and refused to provide Peifer with access to the minor child, in direct contravention of the Court's Order. 5. From the date of the Court's Order, Finkboner refused to communicate with Peifer and continued her course of conduct of refusing to answer any phone calls coming from Peifer. 6. Finkboner would only answer calls if they came from a phone number other than Peifers. 7. During these limited phone call, Finkboner would become belligerent, and refused to provide the minor child for periods of visitation on the baseless argument that the Court's Order was being appealed, and therefore she need not comply 8. On August 2, 2006, Finkboner filed a Notice of Appeal and simultaneously filed an Application for Supersedeas with this Court. 9. Finkboner took the position that she was not required to comply with the Court's July 24, 2006 Order while her Application for Supersedeas was outstanding. 10. On August 8, 2006, Finkboner's Application for Supersedeas was denied by Judge Oler. 11. On August 11, 2006, Finkboner filed an Application for Supersedeas with the Superior Court of Pennsylvania. 12. Finkboner's Application for Supersedeas was denied by the Superior Court on August 15, 2006. 13. By correspondence dated August 11, 2006, Finkboner's counsel was advised that Finkboner was in contempt of the July 24, 2006 Order and that Peifer intended to immediately commence exercising her visitation rights. A copy of said letter is attached 2 and incorporated fully herein as Exhibit "B." 14. As a courtesy to Ms. Finkboner, Peifer offered to wait until the subsequent Sunday, August 20, 2006 to commence her visitation in order that Finkboner could properly schedule the matter with the minor child. 1 S. On August 10, 2006, the undersigned offered to Finkboner's counsel that Peifer would be willing to allow Finkboner to be present during the first visitation with the minor child in order to assuage any concerns, as illegitimate as they may be. That offer was refused. 16. On August 18, 2006, at approximately 4:00 p.m., counsel for Finkboner contacted the undersigned to request that visitation be stayed as Finkboner was still upset over the matter and wanted the child to be seen by a psychologist. 17. That request was refused as it was entirely unreasonable and without any merit, and a product solely of Finkboner's attempt to thwart Peifer's legitimate rights rather than a real concern for the best interests of the child. 18. Despite that it was apparent that Finkboner was simply attempting to evade the Court's Order, Peifer offered to Finkboner that she could be present for the visitation, and the first visitation would not need to entail the entire period of time allowed by the Court Order. 19. This offer was made with specific instructions to Finkboner's attorney that it is the belief that Finkboner was purposely creating issues to attempt to evade the Court's Order and any such efforts will be rejected, and if Finkboner in any way inhibited the ability for Peifer to exercise her valid rights under the Court's prior Order that this present Motion would be filed. 3 20. On Saturday, August 19, 2006, Finkboner's mother-in-law, a woman that Peifer knows only as "Cindy", contacted Peifer. 21. At this time, "Cindy" advised Peifer that Finkboner would not be available for the visitation on Sunday and asked that Peifer just meet "Cindy" and the minor child at a Burger King or the Mall for a very brief period of time. 22. This offer was specifically rejected by Peifer on the concern that she had no idea who "Cindy" was, would not be an appropriate use of the custody period Peifer has so long desired, and lastly, it was not the offer that Peifer graciously extended to Finkboner previously. 23. "Cindy" was specifically advised that this was not acceptable and that Peifer would be present on the appointed day and time to pick up the minor child. 24. "Cindy" was specifically advised that Peifer would be out of town for the rest of the day. 25. Late Saturday, August 19, 2006, Peifer checked her cell phone, which noted missed calls from Finkboner. 26. As it was now approximately 11:00 p,m., the call was not returned until Sunday, August 20, 2006, at approximately 8:30 a.m. Subsequent calls were made to Finkboner later that day. 27. Despite attempts to communicate, as been Finkboner's standard conduct, she refused to answer any phone call made by Peifer. 28. As no communication had been received from Finkboner, and Finkboner made no attempts to discuss the matter with Peifer, Peifer expected that the Order be fully complied with. 4 29. As specifically established by the Court's Order, Peifer was present at the residence of Finkboner and the minor child at 10:00 a.m., on Sunday, August 20, 2006. 30. At that point in time, neither Finkboner nor the minor child was present. 31. Finkboner, obviously aware of the requirements of the Court Order and knowing that Peifer would be present at 10:00 a.m., left a note making excuses that Peifer did not properly contact her to set plans for the visitation. A copy of said Note is attached as Exhibit "C". 32. As Finkboner was well aware, she was fully required to comply with the Court's Order unless and until such time Peifer and her established a different schedule. 33. Finkboner made all attempts, first by having another individual contact Peifer to make absurd requests and then subsequently purposely refusing and failing to respond to any communication from Peifer, in an attempt to evade the responsibility under the Court's Order prior. 34. Finkboner's conduct is a willful and specific violation of this Court's Order evidencing complete disrespect for the Court and Peifer's rights. 35. Peifer, due to the conduct ofFinkboner, has incurred costs and attorney's fees necessary to prepare and file this motion with said costs totaling $500.00. 36. It is evident from Finkboner's conduct that absent and unless this Court finds her in contempt for past violations she will continue to purposely violate the Court's Order and the rights of Peifer. 5 WHEREFORE, Plaintiff, Linda I. Peifer, respectfully requests this Honorable Court find Tara Finkboner in contempt of its Order of July 24, 2006, establish sanctions for such willful contempt, award Peifer additional periods of visitation to compensate for all periods of visitation lost ,and award Plaintiff attorney's fees in the amount of $500.00 payable within ten (10) days of the date of this Order. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Linda I. Peifer DATE: August 23, 2006 6 LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW TIMOTHY PEIFER and TARA FINKBONER, Defendants NO. 06-1743 CIVIL TERM *** TARA PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW TIMOTHY PEIFER; Defendant NO. 04-191 CIVIL TERM IN RE: PETITION FOR PARTIAL CUSTODY AND VISITATION BEFORE OLER, J. ORDER OF COURT AND NOW, this 24th day of July, 2006, upon consideration of the Petition for Partial Custody and Visitation filed by Linda I. Peifer with respect to her granddaughter, Lillian Peifer (d.o.b. April 1, 2002), and following a hearing on July 21, 2006, at which Petitioner, the child's mother, Tara Finkboner, and the child's father, Timothy Peifer, represented themselves, it is ordered and directed as follows: 1. The mother shall have legal custody and primary physical custody of the child; 2. The father shall have such periods of temporary or partial physical custody of the child as the parties agree; and 3. Petitioner shall have temporary or partial physical custody of the child on alternating Sundays from 10:00 a.m. until 7:00 p.m. 4. Nothing herein is intended to preclude the parties from deviating from the custodial terms of this order by mutual agreement. Tara Finkboner 2119 Wentworth Drive Camp Hill, PA 17011 Timothy S. Peifer 335 Market Street Apartment 3A Harrisburg, PA 17101 mda Peifer 517 Warren Street Lemoyne, PA 17043 Courtesy Copy: Mary Etter Dissinger, Esq. 28 N. 32"d Street Camp Hill, PA 17011 r~uE COPY FRaM lR~GOi~t~ ' n TKtkgoa~r wA~sof,1 !wi woo ast n~ IWtd A~ the ~I ~ mid x CariW~, i4t. ~1' ~ y~ o)av ~ . Prathoc~ottr~` BY THE COURT, • • LAW OFFICES OF MARK K. EMERY ' 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Mark K. Emery, Esquire Fax (? 17) 238-9884 e-mail memerylaw@aol.com August 11, 2006 Joseph D. Caraciolo, Esquire Foreman & Foreman, P.C. 112 Market Street, 6th Floor Harrisburg, PA 17101-2015 Via fax 236-6602 RE: Peifer v. Fickboner Dear Joseph: As we discussed, I represent Linda Peifer in the above-referenced matter, as well as all future proceedings before the Superior Court. Based upon Judge Oler's denial of the Application for Supersedeas, we insist that Ms. Finkboner immediately comply with the Court's Order of July 24, 2006. By my calculation from the date of the Order, this coming Sunday would be a period of visitation for Ms. Peifer. As a courtesy to Ms. Finkboner, despite the fact she is already in contempt of the Order, we will not insist compliance until the following Sunday, August 20, 2006. However, I do want to make clear that if there is any interference with the visitation period on that date, I will file a Motion for Contempt, Sanctions and Attorney's Fees the following Monday. I understand from our conversation that your client intends to request a supersedeas directly from the Superior Court. However, until such time as an intervening order is issued, the Order of July 24, 2006 controls and must be followed. Should you wish to discuss this further, please contact me. Very truly yours, LAW OFFICES OF MARK K. EMERY ey: ~~~~ Mark K. Emery MKE/vh cc: Linda Peifer Aug 2' n6 09:572 Greg Hess 717?_'?51~ p.2 J/ !C/t~ i ~C -C eai/,~ fo _ .~~ ~. ~~ 'J _ ~~~~ ~ l A --~ ~. ~-~'~ ~_ G~ .~ ~~~~G~~ ~ G~u/Z ~~ ~r~ ~~~~-~"7C' I~' ~~.~= ~ ~.S ~G' ,'7~LC Get '~~ ~ 1 1 -. _ _ - . _ - _ ~` _ -- ~~' ~~7 ~ C~ ~ ~ ~ ~~t~Z c ~1~G~i. fry zt~'c. -' .`~ ~~~.~~ ~ 'C~~U7 ~,~~~~ Aug 21 06 ~~:57a Greg Hess 71 ??r 11514 p, 3 r~ G~ ~~~,~ . ~`~~~ ,. i )~J~ ~~~~ ll ~ ~ Cam' { f/ v `~ VERIFICATION I, Linda I. Peifer, hereby verify that I have read the foregoing Motion for Contempt, Sanctions and Attorney's Fees, and that the information contained therein is true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. DATE: 0~ 3 D ~P ~_.... Li a .Peifer CERTIFICATE OF SERVICE AND NOW, this 23~d day of August, 2006, I, Mark K. Emery, Esquire do hereby certify that I have served the Motion for Contempt, Sanctions and Attorney's Fees by mailing a true and correct copy via United States first class mail, addressed as follows: Joseph D. Caraciolo, Esquire Foreman & Foreman, P.C. 112 Market Street, 6th Floor Harrisburg, PA 17101-2015 Timothy Peifer 335 Market Street Apartment 3A Harrisburg, PA 17101 LAW OFFICES OF MARK K. EMERY By: Mark K. Emery ~._ ~ ~:_~ ~ ~ ~s- ~ ~, ~~ ~'' -nn `a~:~ ~ °"" ~ Il ^~~ ~ ~ 1 ~' LINDA I. PEIFER, Plaintiff v. TIMOTHY PEIFER and TARA FINKBONER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 06-1743 CIVIL TERM CONCISE STATEMENT OF THE MATTERS COMPLAINED OF ON THE APPEAL AND NOW, comes the Petitioner, Tara Finkboner, by and through her attorneys, Foreman & Foreman, P.C., and Joseph D. Caraciolo, Esquire, and respectfully avers the following as the matters complained of on Appeal: I. Whether the trial court abused its discretion in granting partial physical custody to Plaintiff as such right is not in the best interest of the Child. II. Whether the conclusions of the Trial Court were unreasonable in light of the sustainable findings at trial, and the lack of proffered evidence on behalf of the Plaintiff relating to the best interest of the child. III, Whether the Custody Order is manifestly unreasonable as shown by the evidence of record since it grants Plaintiff partial physical custody without establishing the best interest of the child. IV. Whether each finding of Fact is supported by competent evidence. V. The provisions of 23 PA.C.S.A. §5312 are unconstitutional in that they violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by creating a legislative classification regarding a fundamental right without a compelling governmental interest that justifies this intervention and classification. / / /I Date: 0 23 Dl. 36 h D. CaracicAel, Esquire F eman & Foreman, P.C. 2 Market Street, 6s' Floor arrisburg, Pennsylvania 17101-2015 ID # 90919 Tel. (717) 236-9391 LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. CNIL ACTION -LAW TIMOTHY PEIFER and TARA FINKBONER, NO. 06-1743 CNIL TERM Defendants PROOF OF SERVICE I hereby certify that I am this day serving the foregoing document upon the person and in the manner indicated below, which service satisfies the requirements of Pa. R. A. P. 121: Service b~first class mail addressed as follows: Mazk K. Emery 410 North Second Street Harrisburg, PA 17101 The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Squaze Carlisle, PA 17013 Dater Timothy Peifer 335 Market Street, Apt 3A Harrisburg, PA 17101 eph D. Caraciolo, Esquire oreman & Foreman, P.C. 112 Market Street, 6`h Floor Harrisburg, Pennsylvania 17101-2015 ID # 90919 Tel. (717) 236-9391 c~ a c ,,. SV sj~ "O ` ~ t_ ~ -'' f ' ~rn p hJ -~C LINDA I. PEIFER, Plaintiff v. TIMOTHY PEIFER and TARA FINKBONER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0.06-1743 CIVIL TERM TARA PEIFER, Plaintiff v. TIMOTHY PEIFER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0.04-191 CIVIL TERM ORDER OF COURT AND NOW, this 1S` day of September, 2006, upon consideration of Plaintiff Linda I. Peifer's Motion for Contempt, Sanctions and Attorney's Fees, a hearing is scheduled for Wednesday, September 13, 2006, at 9:00 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, L { ~ 114h4~ { - d:3S 90fl1 Al~1J;~iC ~',"~'r;d CHI. ~~ ~Wi air}-tl~fll~ Mark K. Emery, Esq. 410 North Second Street Harrisburg, PA 17101 Attorney for Plaintiff Linda I. Peifer Joseph D. Caraciolo, Esq. Foreman & Foreman, P.C. 112 Market Street 6`~' Floor Harrisburg, PA 17101-2015 Attorney for Defendant (~ lp~ Tara Finkboner Timothy S. Peifer 335 Market Street Apartment 3A Harrisburg, PA 17101 Defendant, pro Se :rc • • TARA PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW 2004-191 CIVIL TERM TIMOTHY PEIFER, Defendant IN CUSTODY LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION -LAW ~ TIMOTHY PEIFER 06-1743 CIVIL TERM -~ c~ CD j°l' and TARA FINKBONER, Defendants IN CUSTODY IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE J. Wesley Oler, Jr., J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Friday, July 21, 2006, in Courtroom Number One. ORIGINAL APPEARANCES: Tara Finkboner, pro Se Timothy S. Peifer, pro se Linda Peifer, pro se '.~ ~ U ~a ~ ~: r ~ i -.J J ~J ~~ L -~-~_, F r Fr1 • INDEX TO WITNESSES FOR LINDA I. PEIFER Amber Deitz By Timothy Peifer By Tara Finkboner Laurie Hess By Timothy Peifer By Tara Finkboner Timothy Peifer By Tara Finkboner Linda I. Peifer By Timothy Peifer By Tara Finkboner Linda I. Peifer By Tara Finkboner By Timothy Peifer FOR TARA FINKBONER Dora Megonnell By Linda Peifer By Timothy Peifer Tara Finkboner By Linda Peifer By Timothy Peifer • DIRECT CROSS REDIRECT RECROSS 4 -- 10 16 26 52 8 12 14 19 29 13 56 -- DIRECT CROSS REDIRECT RECROSS 35 -- 43 39 -- 42 -- 47 -- 2 • • 1 THE COURT: Please be seated. This is the 2 time and place for a hearing on a Petition for Partial 3 Custody and Visitation filed by Linda Peifer at No. 06-1743 4 Civil Term with respect to her granddaughter, Lillian 5 Peifer, whose date of birth is April 1, 2002, according to 6 the petition. 7 I believe all of the parties are present in 8 court. That would be Linda I. Peifer, Timothy Peifer, and 9 Tara Finkboner. And I don't believe the Court received any 10 memoranda as required by the order scheduling a hearing in 11 this case. However, since all of the parties are pro se, we 12 will continue anyway. Linda I. Peifer, do you want to call 13 your first witness? 14 MS. FINKBONER: Excuse me. I'm sorry. I 15 would like to request a continuance for this. There was a 16 lot of confusion as to whether this was still going to be 17 scheduled due to all the documentation I received that her 18 lawyers were pulling out, and I have representation and many 19 witnesses to call and we didn't have enough time to get them 20 together to give you the notice -- that memorandum that was 21 due 10 days previously to this hearing scheduled. 22 THE COURT: Well, this hearing has been 23 scheduled since May 18th, and we're now scheduling into 24 October and November for the next hearing. So I just can't 25 grant the continuance under those circumstances. 3 • • 1 MS. Peifer, do you want to call your first witness? 2 MS. PEIFER: Yes. My son's fiance, Amber. 3 THE COURT: You'll have to speak up because 4 the stenographer is trying -- 5 MS. PEIFER: Oh, I'm sorry. 6 THE COURT: Please, let me finish when I'm 7 speaking. We're trying to record the proceedings so you 8 will have to speak up so that the stenographer can hear you. 9 Who is your first witness? 10 MS. PEIFER: Amber Deitz. 11 THE COURT: All right. 12 Whereupon, 13 AMBER DEITZ 14 having been duly sworn, testified as follows: 15 DIRECT EXAMINATION 16 BY MS. PEIFER: 17 Q Amber, I just want you to tell everyone how 18 much of a loving relationship that we have -- 19 THE COURT: I'm sorry, but we need to start 20 out by asking the witness her name and address. 21 MS. PETFER: Oh, I'm sorry. 22 THE COURT: What is your name and address? 23 THE WITNESS: My name is Amber Deitz, and I 24 live at 517 Martin Street, Lemoyne, Pennsylvania, 17043. 25 THE COURT: Okay. We're really limited on 4 • • 1 time. 2 MS. PEIFER: Okay. 3 THE COURT: Go ahead, Ms. Peifer. 4 MS. PEIFER: I'm sorry. 5 BY MS. PEIFER: 6 Q Amber, do you know that we have had a loving 7 relationship with Lillian since she came into the world? g A Always. g Q Has she always been part of our family up 10 until Octobe r of this year? 11 A Yes. 12 THE COURT: I'm sorry, Amber. Who are you? 13 What is your relation to this case? 14 THE WITNESS: I am her son's fiance. 15 THE COURT: Her son's fiance. You mean Linda 16 I. Peifer's son's fiance? 17 THE WITNESS: Yes. lg THE COURT: Okay. So you're Timothy Peifer's 19 fiance? 20 THE WITNESS: No. I am Benjamin -- her other 21 son. 22 THE COURT: Oh, okay. 23 THE WITNESS: So I am like an aunt to 24 Lillian. 25 THE COURT: Okay. Go ahead. Linda Peifer, 5 • • 1 go ahead. 2 BY MS. PEIFER: 3 Q When was the last time you saw Lillian? 4 A I saw her the beginning of October, 2005. 5 Q And when you saw her, was there any problems 6 with the mom about -- didn't she ask you to baby-sit for her 7 while she was moving? g A She did bring her over to my apartment at one 9 point when they were moving. It was around Lillian's 10 birthday of this past year, 2005. She came over. We gave 11 her birthday presents, and she stayed with us for several 12 hours at that time. 13 THE COURT: When was that? 14 THE WITNESS: That was -- it was probably 15 April of 2005. 16 THE COURT: Okay. Anything else of this 17 witness, Ms. Peifer? 18 MS. PEIFER: Just one more thing, Your Honor. 19 BY MS. PEIFER: 20 4 I think this may come up. Way back when 21 Lilly was a year old, I was accused of not changing her 22 diaper, and Amber -- 23 THE COURT: You may ask questions of the 24 witness, but -- 25 MS. PEIFER: Oh, I'm sorry. 6 r~ u 1 THE COURT: This isn't really a conciliation 2 conference, it's a hearing. So we need to proceed -- 3 MS. PEIFER: I'm not familiar -- 4 THE COURT: I understand. 5 MS. PEIFER: -- with the court procedure. I 6 apologize. ~ THE COURT: That's all right. 8 BY MS. PEIFER: g Q When Lilly was a year old and she came to our 10 house one time, and she was leaving right away, she didn't 11 have the diaper bag and did she -- you know, was she there 12 so long that, you know, we neglected her in any way? 13 A No. She went back to -- I believe it was her 14 grandmother picked her up that day, and she had a wet 15 diaper, and it was one time with a wet diaper, and it was 16 her last diaper. Her grandmother was coming to pick her up 17 within 10 minutes, and we couldn't go get another one. lg MS. PEIFER: Thank you. 19 THE COURT: Okay. Timothy Peifer, do you 20 have any questions of this witness? 21 MR. PEIFER: No, Your Honor. 22 THE COURT: And Tara Finkboner, do you have 23 any questions of this witness? 24 MS. FINKBONER: Yes. 25 7 • • 1 CROSS EXAMINATION 2 BY MS. FINKBONER: 3 Q Considering what was just said with the 4 diaper -- so basically I can say that you weren't prepared 5 properly to care for her, being that there were no more 6 diapers, reg ardless of when she was being picked up? 7 A We ran out of diapers. g Q And no one could go get anymore? g A No. Because I had to be there so that 10 someone was there when she was -- 11 Q Whose care was she supposed to be in? 12 A She was in my care. Mine and Ben's. 13 Q And who turned her care over to you? 14 A That would be her father, Timothy Peifer. 15 Q I would also like to know when the last time 16 you called me and requested to visit with Lilly was? 17 A That would be in October of 2005, in which I 18 was allowed to have her and -- 19 Q You spoke to me? 20 A Yes. I didn't just show up at your house and 21 take her. 22 Q In October of 2005 you requested that she -- 23 A Yes. 24 Q -- visit with you, and I said no? 25 A No. You said yes. And after that I had 8 C7 1 heard that you were not accepting anyone's phone calls 2 anymore. 3 Q Okay. In October of 2005, what address was 4 this at? 5 A At -- that would have probably been at 6 33 West Main Street. ~ Q No. I mean where was I, that this 8 conversation happened? g A I don't understand what you're saying. 10 Q Which apartment? 11 A Were you at? 12 Q Yes. Because if you initiated the phone call 13 to see Lilly, I'm asking which residence it was at? 14 A You were living in the apartment complex that 15 you had just moved to, I guess. I don't know. 16 Q Okay. That•'s incorrect. 17 THE COURT: No. I'm sorry, but that's 18 stricken. You can ask questions, but not make comments. 19 Any other questions of this witness? 20 MS. FINKBONER: No. 21 THE COURT: Okay. Anything further of Linda 22 I. Peifer? 23 MS. PEIFER: No. 24 THE COURT: Okay. You may step down. Thank 25 you. Ms. Peifer, do you have any further witnesses to call? 9 • • 1 MS. PEIFER: Laurie Hess. 2 Whereupon, 3 LAURIE HESS 4 having been duly sworn, testified as follows: 5 DIRECT EXAMINATION 6 BY MS. PEIFER: '7 Q Your name? g A My name is Laurie Hess. I live at 108 9 Blacksmith Road, Camp Hill, Pennsylvania. 10 Q Thank you, Laurie. When was the last time 11 you saw Lilly? 12 A It was, I believe, around the middle of 13 October. We picked her up. I brought her to my house with 14 my two daughters, her cousins. We went to Ashcombs Farms. 15 We went on a hay ride. We took pictures. We had a great 16 day. We took her back because we had to make sure that she 17 got back at a proper time because I think we said 7:00. We 18 never had any indication that there was any problem. 19 THE COURT: Do you have some relationship to 20 the parties in the case? 21 THE WITNESS: Linda Peifer is my mother, and 22 Lillian Peifer is my niece. 23 THE COURT: Okay. 24 BY MS. PEIFER: 25 Q I was present -- was I not present at that 10 • • 1 outing? 2 A Yes. 3 Q And the time before that -- 4 A The time before that, I have photographs, and 5 I think we all have photographs. It was the Fourth of July 6 last year. Also at my house, we went to -- I don't remember 7 what we did that day. We always try to find something fun 8 to do. We also took her to -- I think it was the Lower 9 Allen Community Park. We took a walk along the creek. She 10 was skipping and singing songs from the Wizard of Oz. We 11 had a great time. We usually got to see her probably like 12 once a month. My daughters will play with her. 13 Q Thank you. 14 A My mother was my daycare for my two beautiful 15 daughters from the time they were about 2 months old until 16 they were both in school. They love spending time with her. 17 She's been a good grandmother. She's still involved in 18 their lives. We have a very large family, and we want 19 Lillian to be a part of that also. We don't think that it's 20 beneficial for her not to know the other part of her family. 21 Any other questions? 22 MS. PEIFER: Thank you. 23 THE COURT: Okay. Mr. Timothy Peifer, do you 24 have any questions of this witness? 25 MR. PEIFER: Yes. 11 • • 1 CROSS EXAMINATION 2 BY MR. PEIFER: 3 Q I want to ask -- Laurie, back to the whole 4 incident with the diaper or whatnot, you have two daughters, 5 my nieces. At any time have they had a wet diaper when they 6 were growing up? 7 A Yeah. I have two daughters, and there are 8 always times there is a wet diaper. It happens, but the 9 question that I'm not understanding is if that was such a 10 big issue when she was one year old, why were we allowed to 11 have her up until October of 2005 without any problems? 12 There's never been a question of how she was taken care of 13 up to that point. Ben and amber would take her places by 14 themselves. ' 15 Q Would you consider dirty clothes or a wet 16 diaper on occasion by a one or two year old -- 17 A No -- 18 THE COURT REPORTER: Wait. You're both 19 speaking at one time. 20 THE COURT: Go ahead. 21 BY MR. PEIFER: 22 Q I was just wondering if you would consider 23 dirty clothes or a dirty face or maybe gum in the hair or 24 maybe a wet diaper on occasion by a one or two year old 25 would be negligent? 12 • • 1 A No. Children are dirty all of the time. 2 MS. PEIFER: I do have one more question. 3 THE COURT: No. We go in order here. Any 4 further questions, Mr. Peifer? 5 MR. PEIFER: No, Your Honor. 6 THE COURT: Ms. Finkboner? '7 MS. FINKBONER: No. g THE COURT: Okay. Now it's your turn again. g REDIRECT EXAMINATION 10 BY MS. PEIFER: 11 Q Okay. I wanted to ask one more question, 12 Laurie. If a wet diaper is considered negligent, would it 13 not be considered negligent to have a child -- a young child 14 unproperly dressed for the winter without a coat or a hat on 15 a blustery -- 16 A Yes. I remember when you were taking -- she 17 was taking her back to daycare when the daycare actually 18 commented that Lilly did not have a winter coat, and my 19 mother purchased one for her because she didn't have a 20 winter coat to go outside. They were concerned about her 21 being warm. My mother bought her a coat. We never saw it 22 again after that. 23 MS. PEIFER: Thank you. 24 THE COURT: Mr. Peifer, do you have any 25 further questions? 13 • ~ 1 MR. PEIFER: No, Your Honor. 2 THE COURT: And Ms. Finkboner? 3 MS. FINKBONER: I do, yes. 4 THE COURT: All right. 5 CROSS EXAMINATION 6 BY MS. FINKBONER: 7 Q Do you have any knowledge of whose care she 8 would have been in without the coat incident and when she 9 was turned over to the Peifers? 10 A I'm sorry. I didn't understand that. 11 Q Do you know whose care she was in? Who she 12 was turned over from? 13 A She was turned over from you when she was 14 dropped off at the daycare with no coat. 15 Q Okay. That is not true, but -- 16 A That's what the daycare said. 17 THE COURT: If there's nothing further, you 18 may step down. Thank you. Ms. Peifer, do you have any 19 further witnesses to call? 20 MS. PEIFER: Yes. I would like to call my 21 granddaughter. 22 THE COURT: The person I really would like to 23 hear from is the parents and the grandmother. These other 24 witnesses are very interesting, and they help a little bit, 25 but primarily I need to hear from the parties directly 14 • • 1 involved. 2 MS. PEIFER: Could I call my son, Tim, 3 Lilly's father? 4 THE COURT: Okay. I guess one thing I'm 5 confused about is, Mr. Peifer, if you're in agreement with 6 what your mother wants, why don't you just let her have 7 custody during your period of custody? 8 MR. PEIFER: That's a touchy situation, Your 9 Honor. I had missed a custody hearing two years back, and I 10 am currently in pursuit of visitation and custody rights. 11 My ex-wife, Tara Finkboner, has withheld my rights of 12 letting me see my daughter. I have not seen my daughter 13 since August 31st, two years -- it will be two years August 14 31st. 15 I have tried numerous occasions to try to get 16 custody of my daughter or to try to see her. I would be 17 allowed to see my daughter on her terms, and I guess she has 18 taken that -- the fact that just because she has the right, 19 she has the right to not let me see my daughter, which I 20 think is just preposterous. I miss my daughter. 21 THE COURT: So basically you're saying you 22 don't have any custody? 23 MR. PEIFER: I have no rights right now, Your 24 Honor, and I am actively pursuing a custody order. I have 25 just filed a petition of child support. I have been paying 15 • 1 five hundred and -- or seven hundred -- 2 THE COURT: I'm not concerned about child 3 support. Th is is custody. I assume you haven't filed 4 anything in this case? 5 MR. PEIFER: Not presently. 6 THE COURT: Okay. All right. That answers 7 my question. Go ahead, Ms. Peifer, do you want to call 8 Timothy Peifer? g MS. PEIFER: I do. 10 THE COURT: Okay. 11 Whereupon, 12 TIMOTHY PEIFER 13 havi ng been duly sworn, testified as follows: 14 DIRECT EXAMINATION 15 BY MS. PEIFER: 16 Q Your name? 17 A My name is Timothy Peifer. 18 Q And address? 19 A 335 Market Street, Harrisburg, Apartment 3-A. 20 Q And you're? 21 A I am Lillian's father. 22 Q Okay. Tim, the reason -- one of the big 23 reasons why you did not see Lilly during the last two years 24 -- were you pressured in any way? 25 A Yes. I was pressured to sign over my 16 • • 1 parental rights, and threatened to be put into prison, which 2 I actually had to spend one night in jail after I signed a 3 file for an adjustment for my child support, and it was a 4 long -- it was kind of bad between Tara and I, a bad 5 break-up. Things didn't go so well. I got blind sided and 6 found out that she was cheating on me. Our marriage had 7 ended. Two months after I signed my divorce papers, she had 8 gotten remarried, and since then things have not been so 9 well. 10 I was very stressed out, and she -- basically 11 with money situations and all sorts of other threats, where 12 I had actually at one time considered signing over my 13 parental rights just to make things go away. I was very 14 extremely stressed out. 15 I have recently gotten remarried, and with 16 the help of my family and my new wife, it's opened my eyes 17 big enough to actually fight now, and I'm a lot different 18 now than I was two years ago. And I miss my daughter. I 19 don't think that there's any reason whatsoever why a father 20 should not be able to see their child. 21 MS. FINKBONER: Can I just say this isn't 22 about you, this is about -- 23 THE COURT: I'm sorry. This isn't a 24 conference. It's a hearing. So if you have an objection, 25 you need to address it to me and then I'll rule on it. Do 17 • • 1 you have an objection to this testimony? 2 MS. FINKBONER: Yes, I do. I think that him 3 explaining his situation with parental rights is not what 4 this hearing is about. It's Linda requesting them, and he 5 is actually a named defendant here. So I don't see what 6 relevance this has. You know, if he wants to pursue a case 7 to address his issues then, you know -- I mean he's named as 8 a defendant in this. g THE COURT: Okay. The objection is noted, 10 but overruled. Do you have any further questions of this 11 witness, Ms. Peifer? 12 MS. PEIFER: Yes. 13 BY MS. PEIFER: 14 Q Tim, you were raised in a family with six 15 brothers and a sister, and you grew up with your nieces, 16 and, you know, different other children. Do you think at 17 any time I was a bad mom or a grandmother that I should not 18 have any rights to be with your daughter, who you know I 19 love and -- 20 A No, absolutely not. And as the defendant in 21 this case, I see no -- I have no objection to my mother 22 seeing my daughter. 23 THE COURT: But you're not asking for custody 24 yourself .in this proceeding; is that right? 25 THE WITNESS: I would like to address that 18 • • 1 fact. The only reason I have not as of yet is because of 2 monetary issues with being able to get a lawyer because they 3 told me I need a lawyer to file. I do want to see my 4 daughter very badly. Very badly. 5 THE COURT: Okay. Ms. Finkboner, do you have 6 any questions? '7 MS. FINKBONER: Yes, I do. g CROSS EXAMINATION 9 BY MS. FINKBONER: 10 Q You refer to the fact that you had times 11 where you had the visitation with our daughter, Lilly, and 12 took her over there. What were the reasons that you were 13 not visiting with her, but you turned her over to your 14 mother? 15 A There were a few reasons. On many occasions 16 it was because I had to work. Other occasions it was 17 because of anxiety and stress levels, which it was very 18 difficult for me at the time to be able to take care of 19 Lillian by myself, and I figured, in Lillian's best 20 interests, that my mother or the rest of my family would be 21 the best interests for her, to be with at that moment. 22 Q And was I notified of these times when you 23 were taking Lilly to a completely different residence and 24 letting her spend the night there? 25 A Not on every occasion. 19 • • 1 Q Ever? 2 A Yes. 3 Q Okay. Did you not have very structured and 4 fair visitation at one point where your family had every 5 opportunity to visit with Lilly? 6 A Yes, I had. ~ Q And what happened to that? g A I don't know. You stopped letting me see 9 her. 10 Q Were you not showing up at your own door to 11 receive Lilly so that she could be a part of your family? 12 A On a few occasions I was out of town. 13 Q Without notifying me? 14 A Yes. 15 Q So you were not at your own door to receive 16 her on those days of custody where she could spend time with 17 your entire family, and I was not notified? 18 A You were not notified, but she had spent time 19 with them. 20 Q And what is the status of your rights with 21 her now because basically if you have the visitation and the 22 time with her, then your family would have time whenever you 23 wanted to spend with her, correct? So do you know what the 24 circumstances are right now with your visitation with Lilly? 25 A The visitation with Lilly -- 20 • • 1 Q Excuse me. I meant custody. 2 A Custody with Lillian is primary to you, and 3 it's your choice to let me see her. 4 Q Would that mean it's secondary to you? 5 A I would be secondary. 6 Q Or were all of the rights awarded completely 7 to me because you did not attend the custody hearings? 8 A I had missed the custody hearing, yes, 9 because I do not have a car and I live in Harrisburg and 10 it's very difficult for me to run back and forth from 11 Harrisburg to Carlisle. 12 Q So you did miss the custody hearing deciding 13 on full custody of your daughter, which was then awarded to 14 me. Is that what you're saying? 15 A Yes, I did miss it, the custody hearing, but 16 -- 17 THE COURT: When you say there was a hearing, 18 what hearing are you talking about? 19 MS. FINKBONER: It was years ago where -- 20 when he stopped seeing her -- we were driving her to his 21 residence. 22 THE COURT: What's the term and number of the 23 order? Is there a custody order in effect -- 24 MS. FINKBONER: Yes. 25 THE COURT: -- that I'm not aware of? 21 • • 1 MS. FINKBONER: Yes. 2 THE COURT: What county was that filed in? 3 MS. FINKBONER: Cumberland. 4 THE COURT: And what's the term and number of 5 that? 6 MS. FINKBONER: I don't have it with me. 7 That was something that the lawyer was going to prepare, 8 which is one of the reasons I had asked for a continuance. g THE COURT: So you are saying there's an 10 existing custody order already in this case? 11 MS. FINKBONER: Yes. Where all of the 12 custody of Lillian was awarded to me. 13 THE COURT: And you don't have a copy of that 14 order? 15 MS. FINKBONER: Not with me, no. 16 THE COURT: Okay. Go ahead. Any other 17 question s of this witness? lg MS. FINKBONER: Yes. 19 BY MS. FINKBONER: 20 Q Were there times when you turned Lilly over 21 to your mother and it was to do things other than work? 22 A Yes. 23 Q Like what? 24 A There was -- I had to go -- I went to a 25 concert once. 22 • • 1 Q So you turned -- 2 A Yes. 3 Q Lilly over -- 4 THE COURT: This just is not fair to the 5 stenographer. Please let the witness answer the question, 6 and I'll instruct the witness, please, let Ms. Finkboner ask 7 the question. 8 BY MS. FINKBONER: g Q So there were times you turned your daughter 10 over during your times of visitation to go to concerts? 11 A Well, yes, but at the same time I mean there 12 were times when you wanted to go out and have dinner with 13 your new husband, and you found a baby-sitter, and I was 14 finding a baby-sitter to, you know, do something for myself. 15 I assume also -- 16 Q You -- 1~ THE COURT: No, no. You're doing it again. 18 It just is not fair to the stenographer. This is not a 19 conference. It's not a conversation. You're asking 20 questions of a witness, and the witness is supposed to 21 answer the questions. Now, that's the last time I'm going 22 to say this. All right? 23 BY MS. FINKBONER: 24 Q How many days a week was there visitation, 25 and do you feel that it was fair the way that it was? 23 • 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 Two days, and yes. MS. FINKBONER: Okay. I have no further questions. THE COURT: All right. Ms. Finkboner, in this other case, who were the parties? We'll try to find the file. MS. FINKBONER: He and I. THE COURT: Only the two of you? MS. FINKBONER: Um-hum. THE COURT: Who was the Plaintiff? MS. FINKBONER: I was the Plaintiff. THE COURT: Okay. So we're looking for a case of Timothy Peiper versus -- MS. FINKBONER: No. The other way. Me versus. THE COURT: I'm sorry. Tara. MS. FINKBONER: It was Peifer at the time, yes. THE COURT: Tara Peifer, P-e-i-f-e-r, versus Timothy Peifer, and what year was it that you think you started it? MS. FINKBONER: I believe 2.004, and it was -- I believe it was Greevy -- or rot Greevy. Jacqueline Verney, I think, was the person overseeing the case. THE COURT: So that should be in the 24 • • 1 Prothonotary's office. 2 MS. FINKBONER: And it was the modification 3 of a previous order. It was the modification where he used 4 to have visitation, and it was modifying that -- all that 5 was awarded to me. 6 THE COURT: So it's Peifer versus Peifer. 7 Okay. We're starting to run out of time. Any other 8 questions of this witness? 9 MS. FINKBONER: No. 10 THE COURT: Okay. Ms. Peifer, do you have 11 any further questions? 12 MS. PEIFER: No, I don't. 13 THE COURT: And, Mr. Peifer, did you want to 14 say anything as a result of the questions that you were 15 asked? 16 THE WITNESS: Just that I miss my daughter a 17 whole lot, and I would like to see her, and I think that my 18 mother and Lillian and the entire family should be able to 19 see her again. That she has the right, as any other human 20 being, to be a part of her own family, and I disagree with 21 the actions of Ms. Finkboner. 22 THE COURT: Okay. You may step down. Thank 23 you. Ms. Peifer, do you have any further witnesses to call? 24 MS. PEIFER: No, I don't. 25 THE COURT: Are you not going to call 25 ~~ 1 yourself? 2 MS. PEIFER: Oh, yes. I would like to. 3 THE COURT: Okay. 4 MS. PEIFER: I didn't know I could. 5 Whereupon, 6 LINDA I. PEIFER 7 having been duly sworn, testified as follows: g THE WITNESS: My name is Linda Peifer, 9 517 Warren Street, Lemoyne, Pennsylvania, 17043. 10 THE COURT: Now, are all of the facts in your 11 petition true and correct? 12 THE WITNESS: Yes. 13 THE COURT: Okay. And go ahead and say what 14 you think's important in a factual sense. 15 THE WITNESS: I'm here on behalf of my 16 granddaughter, Lillian. I miss her very much. The last 17 time I saw her was the end of October of 2005, and for 18 whatever reasons, her mom has decided that I -- or anybody 19 in my family, for that matter -- when up to that point we've 20 all had a very loving, happy relationship. 21 I know I didn't get to see her as much as I 22 would like to, but it boiled down to once or twice a month. 23 I helped my son, Tim, out when he was going through some 24 really bad times, and I have six other grandchildren, Your 25 Honor, and I have to spread myself around to them because I 26 • • 1 work a job, and I just was told after I tried calling Tara 2 -- well, the last time I brought Lilly home I even said to 3 her, you know, everything's good. I was going for surgery. 4 I said, I'll get in touch with you, and I tried and tried 5 repeatedly afterwards, and she wouldn't answer the phone. 6 Nobody would answer. 7 Finally I got in touch with -- I think it was 8 her grandmother that answered the phone because we had 9 missed Christmas. We had Christmas presents. And I was 10 told by her grandmother, don't bother them during the 11 holidays, just leave them alone, and I didn't understand 12 that, but I thought, okay, I'll give that a chance. 13 So I waited, and still didn't get any 14 response until I used a different telephone, and I guess 15 they were caller ID'ing my number, and I spoke with Tara's 16 husband. 17 THE COURT: What year are we talking about 18 now? 19 THE WITNESS: Now 2006. This was after the 20 first of the year. So this would have been January of this 21 year, '06. 22 THE COURT: Okay. 23 THE WITNESS: And I spoke with Brett, Tara's 24 husband, and he said, you've been calling for weeks, and I 25 said, Brett, I've been calling for months. I don't 27 • • 1 understand what's -- what's wrong, you know. And he said, 2 Lilly has a new family now. This is almost word for word 3 because I can recall because I was shocked. q Lilly has a new family now. You're not a 5 part of it anymore. You can't see her or talk to her 6 anymore. Get on with your life. And he hung up on me. 7 That was the very last time. And I did get an attorney. 8 My daughter helped me. g I couldn't afford to keep -- I thought once 10 we went to the conciliatory we couldn't talk because I 11 didn't know Tara had -- I mean up to that point -- because, 12 you know, you can hear from my witnesses, we've had 13 visitation and had good times with her. And so I had gotten 14 an attorney to represent me. 15 THE COURT: I understand that you had an 16 attorney, but you don't now. 1'7 THE WITNESS: I don't because of money, 18 because of financial and -- 19 THE COURT: Now, when was the last time you 20 saw the child? 21 THE WITNESS: I saw Lilly -- it was the end 22 of October when we went to Ashcombs with my daughter and my 23 granddaughters. 24 THE COURT: October of 2005? 25 THE WITNESS: Yes. 28 • • 1 THE COURT: Okay. Mr. Peifer, do you have 2 any questions of your mother? 3 MR. PEIFER: No, Your Honor. 4 THE COURT: Okay. Ms. Finkboner? 5 MS. FINKBONER: Yes. 6 CROSS EXAMINATION 7 BY MS. FINKBONER: 8 Q Linda, were you given a reason through any of 9 this, and including at the conciliation, of why the 10 visitation was stopped? 11 A Yes. 12 Q What was that reason? 13 A The reason was that you were going to have -- 14 you know, that you were going to have an adoption, you know, 15 by Brett, and you felt it was confusing to Lilly to have 16 more than one family, and I just don't see how that could be 17 confusing when she still knows us, and what do you tell a 18 little child when she -- I have pictures, you know, all the 19 way up until then. I mean if she's happy, I just -- 20 Q Thank you. Also, do you remember having a 21 conversation with me when she was turned over to your care 22 by Tim about the fact that I was not aware where she was, 23 and I was not informed that, you know, the hands of where 24 she was being taken care of were changing? Do you remember 25 the conversations where I expressed concern that she was 29 • • 1 coming to your house for whatever reason, and that I was not 2 being informed of it? 3 A I remember us having a conversation about 4 that. 5 Q Okay. Do you remember the conversations 6 regarding the fact that she would be spending the night, and 7 the next days, which would be Wednesdays and Thursdays, were 8 not days of Timothy's custody, and that I requested her to 9 be back -- you know, if she's put in the care of you then, 10 you know, turn her over from you to the day care by a 11 reasonable time, but definitely by 12 noon? 12 A I do recall. 13 Q Also so that I would know where she was, and 14 was she turned over by 12:00 noon to the daycare? 15 A Not every time, Tara. 16 Q And was I ever called and informed, when she 17 was not, where she was supposed to be in the daycare? 18 A No. 19 Q Okay. And also, from the time of Tim and my 20 separation, wh ich was February of 2004, would you agree that 21 it was somewhe re around Christmas or so that you had gotten 22 in touch with me about seeing Lilly, and you put a letter in 23 the mailbox about the fact that you wanted to see her? 24 A I'm sorry. I didn't understand that 25 question. 30 • • 1 Q I'm saying it was around Christmas of that 2 year that you had gotten in touch with me via the note in my 3 mailbox that, you know, regardless of what the situation 4 with Tim was that, you know, you still wanted to see Lilly 5 and all that? 6 A Yes. Because I felt that whatever was going 7 on between you and Tim was between you and Tim, and I 8 didn't, you know, want to be in the middle of it. I just 9 wanted to have time with my granddaughter, and you agreed. 10 Q And my address hadn't changed or anything at 11 that time. So you're saying that from February to December, 12 you waited 10 months to pursue having visits with your 13 granddaughter? 14 A Tara, you frightened all of us because of 15 your -- the way you talk -- 16 Q But -- 17 THE COURT: Wait. I'm sorry. You must let 18 the witness finish the answer. 19 BY MS. FINKBONER: 20 Q Had you ever contacted me before that? 21 THE COURT: You didn't let the witness finish 22 the answer. This is the last time. Go ahead. Finish your 23 answer. 24 THE WITNESS: I am intimidated by Tara. I 25 admit it. So we both agreed that it takes a lot of courage 31 • • 1 just to talk with you, Tara, and I -- and so, yes. It took 2 me a lot to get up the courage, but now I'm not going to 3 back down anymore. I really feel that it's important for 4 Lilly to know our family, and I don't see how that could 5 harm her in any way. I just -- I'm not demeaning you as a 6 mother. I'm not, you know, saying -- I'm just saying that 7 for Lilly's good, I think she deserves to be a part of our 8 family. It's a great family to be a part of. I have 9 pictures of her with everyone, her cousins and her uncles 10 and her aunts, and I just can't see the point of this whole 11 trying to demean each other because it just isn't right. 12 BY MS. FINKBONER: 13 Q Thank you. During all the times of 14 visitation you had with her, were you taking her to your 15 house or did we have an agreement otherwise? 16 A I had an agreement that I took her to my 17 daughter's house. 18 Q And why was that? 19 A Because you didn't want her to run into her 20 dad. 21 Q And did you not agree with me at that time 22 with that? 23 A I agreed so that I could see her. It was 24 just because of that. I wasn't going against what you 25 wanted because you said it was for Lilly's best interests, 32 • • 1 and as long, you know, as I was complying with what your -- 2 Q And we had agreed on that because she does 3 not even know who he is? 4 A She does know. Excuse me. Can I say 5 something, Your Honor? She does know who he is. One time 6 -- can I -- 7 THE COURT: Well, T'll tell you what. We're 8 getting pretty far field here. Do you have any further 9 questions of this witness? 10 MS. FINKBONER: No. 11 THE COURT: Okay. Mr. -- let's see, 12 Ms. Peifer, do you have anything further you want to say 13 based on those questions? 14 THE WITNESS: Just that I do believe she 15 still knows her father. She asked about him when she was 16 with me. She asked about him. She always called him her 17 other daddy, and so, therefore, I feel that she does, and 18 she still remembers our family because she saw my 19 granddaughter at an ice cream shop a couple of days ago and 20 recognized her. So I don't know what she's been told about 21 what happened to all of us, but she's a very bright little 22 girl. 23 THE COURT: Mr. Peifer, do you have any 24 questions of the witness? 25 MR. PEIFER: No, Your Honor. 33 • • 1 THE COURT: And, Ms. Finkboner, do you have 2 any further questions? 3 MS. FINKBONER: No. 4 THE COURT: Okay. You may step down. Thank 5 you. The Court is now in possession of the other file in 6 this case, which is 2004-191 Civil Term, a divorce action, 7 and that does contain a custody order dated September 23, 8 2004, in which the mother, Tara Peifer, who is now Tara 9 Finkboner, is granted sole legal and sole physical custody 10 of Lillian A. Peifer, and the father is granted periods of 11 partial physical custody as the parties may agree, and we'll 12 enter this order: 13 AND NOW, this 21st day of July, 2006, the 14 case at No. 04-191 Civil Term is consolidated with the case 15 at No. 06-1743 Civil Term for purposes of the custody 16 aspects of both cases. 17 (End of order.) 18 THE COURT: Ms. Peifer, do you have any 19 further witnesses to call? 20 MS. PEIFER: I do not. I would like to call 21 Tara, if I could. 22 THE COURT: You can call her. You know 23 you're calling her as your witness. You can do that if you 24 want to. 25 MS. PEIFER: I would decline that then. 34 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: You do not wish to call her? MS. PEIFER: No. THE COURT: Okay. Does that conclude your case-in-chief? MS. PEIFER: Yes. THE COURT: Okay. Mr. Peifer, do you have any witnesses that you want to call? MR. PEIFER: No, Your Honor. THE COURT: All right. Ms. Finkboner, this is your chance. MS. FINKBONER: I would like to call Dora Megonnell. THE COURT: Okay. Whereupon, DORA MEGONNELL having been duly sworn, testified as follows: DIRECT EXAMINATION BY MS. FINKBONER: Q Can you state your name and address, please? A My name is Dora Megonnell. I live at 12 Cedarhurst Lane, Camp Hill. Q Okay. Dora, what is your relationship to Lilly? A I'm her great-grandmother. Q Okay. And did you -- or did you not provide 35 • • 1 daily care for her while I was attending nursing school? 2 A Yes. 3 Q Can you describe some of the incidents when, 4 because I was at work or school, you were over to the Peifer 5 residence to pick Lilly up from there? 6 A Yes. I could describe the diaper incident. 7 The child had had that diaper on much longer than just the 8 two changes. When I picked her up, urine spilled out all 9 over her. I even stopped and bought diapers on my way there 10 because they said they didn't have diapers. She had 11 evidentially had it on overnight, and this was 10:00. And 12 when I went to the house to pick her up, she was with a 13 younger brother, not grandmother. 14 There were four other children -- I think 15 four. There might have been three, but I think there was 16 four other children there, and Li11y was in a play pen. I 17 picked her up because it angered me so that she was so wet. 18 When I picked her up, the urine spilled out all over me, and 19 I had to change her in my car on the back seat as soon as I 20 took her outside. You don't keep children -- 21 THE COURT: When was it that this happened? 22 THE WITNESS: I think she was about 1, 1 1/2. 23 MS. FINKBONER: Yes. 24 THE WITNESS: She had just started standing 25 up and walking. So it was about that age. 36 • • 1 BY MR. FINKBONER: 2 Q And can you also describe the incidences 3 where, due to me being at school or working, you would pick 4 her up from daycare for me at around 5 p.m. or so and she 5 still was not there? 6 A Yes. I was to pick her up one day, and she 7 was supposed to be back by 2:00, and when I went at 5 --~it 8 was quarter of 5, she still was not there. And I waited 9 because I didn't know who had her. At quarter after 5, the 10 brother -- I think it was Ben, I believe that's his name, 11 Benjamin and his girlfriend brought her in. No one knew who 12 the girlfriend was. I knew the brother, but I had only seen 13 him a couple of times. They brought her in, and I took her 14 from them and said, she was supposed to be in the custody of 15 grandmother or father. I didn't know which. This was 16 quarter after 5. The nursery school was getting ready to 17 close. 18 THE COURT: When was this? 19 THE WITNESS: Around the same age. 20 THE COURT: Okay. 21 THE WITNESS: She was still -- she was maybe 22 two. 23 BY MS. FINKBONER: 24 Q Okay. And from your involvement with Lilly, 25 how often do you see or talk to her? 37 • • 1 A I talk to her just about every day, and I see 2 her several times a week. 3 Q I'm sorry. Have you known her to discuss the 4 Peifer family? 5 A No. She doesn't know them. She doesn't even 6 know a picture of her father, if you show it to her. She 7 doesn't know him. 8 Q Okay. Also, during the times that I was 9 struggling through nursing school and you baby-sat her for 10 us, did you also have times where we were still married that 11 you received Lilly from him and -- from him? 12 A Yes, and I've received her from him at 9:00 13 in the morning, and he smelled like alcohol. 14 Q Okay. Any of the times that you got her from 15 the Peifer residence, was Linda ever there? 16 A No. 17 Q Who -- so it was only who that was taking 18 care of her? 19 A Brother. 20 Q Okay. And was Lilly upset the time that you 21 picked her up when she was not having the diapers? 22 A She was in the play pen and looked as though 23 she had tears in her eyes. I don't know whether she did or 24 not. She was not crying, but she was very happy to see me 25 come get her. And so I don't know whether she had -- she 38 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was in her play pen. She was not kept in a play pen at our house nor at Tara's house. Q Okay. And through your daily knowledge of the closeness to Lilly, do you think that it's a safe environment for her to be at the Peifer residence or with Tim? A No, I don't, and I don't know about the Peifer residence itself. I don't know that. So I can't testify to that. But I know that grandmother was not there. When she is put in my care, I take care of her. I don't give her to somebody else. But her father, yes, there's too much alcohol involved. MS. FINKBONER: Thank you. THE COURT: Now, what is your last name? THE WITNESS: Megonnell, M-e-g-o-n-n-e-1-1. THE COURT: And what side of the family are you on? THE WITNESS: I'm Tara's grandmother. THE COURT: Tara's grandmother? THE WITNESS: Yes. THE COURT: Okay. Let's see. Ms. Peifer, any questions? CROSS EXAMINATION BY MS. PEIFER: Q You said she doesn't even recognize her 39 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 daddy's picture. When was the last time you showed her? A Only about two weeks ago. Q You actually showed her his picture? A Yes, and she could not pick him out. There was other people in the picture, and she knew other people, but she didn't know him. They even specifically asked her, who was that? I don't know. Q Why doesn't she know her dad? A Because he hasn't been a part of her life. He hasn't come to visit her. He never made an effort to visit her. 4 Why? A Because he's been busy -- well, I would say partying myself. He does not pay support. He has never paid support for years, and you can check records for that. That's not a big deal. I know that to be true because we had financially helped Tara, and we helped her through nursing school. We signed for her to get a car and made the payments until she was done. They used my car for a year because he didn't go to work half the time. He brought her to me during the day sometimes and stayed home and drank. And I know that to be a fact because she caught him, and you can't deny that. They used my car. Q Tara has been out drinking too. The night 40 • • 1 that she left Tim she was out all night, and you were there 2 with me. 3 A Yes. 4 Q And you saw that she stayed out with some 5 guy -- 6 THE COURT: What's the question? 7 BY MS. PEIFER: 8 Q Well , I just wanted her to tell me that she 9 remembers that day. Do you remember that day? 10 A Yeah, I remember that day. 11 Q All right. 12 A And she was told that that was not the right 13 way to handle this because he was drunk at home. 14 Q No, he was home watching Lilly. 15 A No. He was drunk at home. 16 THE COURT: Wait. This is turning into an 17 argument. You can ask questions, but not argue with the, 18 witness. 19 MS. PEIFER: I'm sorry. I apologize. 20 THE COURT: Any further questions? 21 MS. PEIFER: No questions. 22 MS. FINKBONER: I have one more. 23 THE COURT: Mr. Peifer, do you have any 24 questions? 25 MR. PEIFER: I just have one question. 41 • ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CROSS EXAMINATION BY MR. PEIFER: Q In the eyes of God, do you think -- A I can't hear you. Q In the eyes of God and everything right, do you think there is really any reason why a small child -- any child should be denied the right to know where they came from? A I do when there's an abuse of alcohol, and that alcohol may be detrimental to her well being, and it was being detrimental to her well being. She has a well adjusted life. Her father does not -- her stepfather hopefully, does not run around at night. He's home with her, and she calls him daddy. She knows him as daddy, and he treats her as if she's his own child. Q Do you believe that people can change? A They might change, but you haven't changed yet. You haven't paid support. You haven't paid attention to whether she has things she needs. We've always had to do that. Q Do you have proof that I haven't been paying the support? A Yes. I know. Q Because I know I have. A You haven't been paying support, Tim. I mean 42 • • 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that's a matter of record. How many times has she been back over here for hearings because of that? You didn't even pay the last thousand they told you to pay. A Yes, I have. THE COURT: Again, this is turning into an argument. Anything further, Mr. Peifer? MR. PEIFER: No, Your Honor. THE COURT: Let's see. Ms. Finkboner. MS. FINKBONER: No, nothing further. THE COURT: No questions? Okay. You may step down. Thank you. THE WITNESS: Thank you. THE COURT: Okay. MS. FINKBONER: And I would like to call myself. THE COURT: All right. Whereupon, TARA FINKBONER having been duly sworn, testified as follows: DIRECT EXAMINATION THE WITNESS: Okay. I would like to say that -- THE COURT: Your full name and address, please. THE WITNESS: Tara Finkboner. It's 2119 43 ~ ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Wentworth Drive, Camp Hill, 17011. THE COURT: All right. THE WITNESS: Okay. I would like to say that I did, for a period of time, allow Linda -- and I didn't have a problem with her visiting with Lilly. It was not very often, and the longer it went on, it got less and less, and I would always be given excuses as to how busy she was. There were lots of instances where previously, as I said, custody -- or, you know, the care of Lilly was turned over to them, and no one ever called me and told me where she was. I spent many days trying to figure out where my daughter was. I had repeatedly called them and told them if they were going to have her, have her back at daycare, you know, by a certain time. It was being paid for, and that was, you know, her interaction with other children. I was repeatedly ignored and never called and told where she was by either of them. I did let Linda visit with her, and the reason that it stopped was because, although Mr. Peifer says he thought for a brief period about signing his rights over, he actually did a lot more than that. He consulted an attorney and had papers drawn up saying that he was fully going to cooperate, and it wasn't until like in the past three weeks all of a sudden that he's been asking to see 44 • 1 her, and she doesn't know who he is. 2 The incident did happen where a picture was 3 shown to her, and she does not have a recollection of him. 4 She hasn't seen him for years. You know, to an adult when 5 you say two years ago, that's not much. To a four year old, 6 it's half her life. 7 Tim had very fair visitation, Tuesdays and 8 Thursdays, and he stopped showing up at his own doorstep, 9 and she would cry, and my husband and I would drive her 10 there. She would cry, and it got emotionally awful for her 11 to be sitting there expecting to go with him to visit, and 12 he was never there. 13 I put in a Petition To Modify, which was 14 granted, which he did not attend the custody hearing, and he 15 was aware of it because he had signed -- 16 THE COURT: Wait. You say a custody hearing. 17 I don't think there was a hearing. There may have been a 18 conciliation conference. 19 THE WITNESS: It was a conciliation then, 20 yes. 21 THE COURT: And you're saying he didn't 22 appear for that? 23 THE WITNESS: Right. 24 THE COURT: And as a result you got this 25 order of September 23, 2004? 45 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: Correct. And my attorney at the time, you know, just to know that he was notified, we had to even wait for the mail card, you know, to return that he signed for it, that he was aware of the conciliation. So he was aware. THE COURT: Okay. Go ahead. THE WITNESS: Again, I did let Linda visit with her and it was stopped only because, between Tim and I, there was many verbal agreements made over the phone about him signing the rights over. So that was why after, you know, her not visiting very much with Linda, we made a decision that it would be much less confusing for her to separate, which, you know, was I a hundred percent thinking that was the greatest idea? No, but the situation was unfortunate, and, you know, had Tim kept visitation he had, they would have no problems seeing her. There were also dangerous times at that house when one time Tim was next door drinking and found out that Lilly was over there, and he tried to come over. He threatened to kill one of his brothers, Matt, and Ben and Amber, who are in the courtroom, were there. THE COURT: When was that? THE WITNESS: I believe she was about two, two or three. And they had her over there visiting, and everyone knew because they did not have a relationship with 46 • • 1 Tim at that time either. He didn't speak to any of them. 2 THE COURT: Okay. 3 THE WITNESS: And they called me, oh, we got 4 to get her out of here because he's drinking next door. He 5 knows she's here. So we had to meet at a gas station. 6 THE COURT: Okay. Anything further? 7 THE WITNESS: I would also like to say that, 8 you know, my daughter is the most important thing in my 9 life, and I believe in actions. You know, anyone can sit 10 here all day and say, I love her. I do this. I do that, 11 but I take care of her every day. You know, my husband is 12 the only father that she knows, and that is not because Tim 13 wasn't entitled to visitation at one point. He was. And 14 had he kept that, we wouldn't be sitting here right now. 15 All I know is my daughter does not know him. 16 T think it's a bad situation for her to be in, to start 17 going to all of these holiday things, to be put around a 18 person that she doesn't even know. 19 THE COURT: Okay. Ms. Peifer, do you have 20 any questions of this witness? 21 MS. PEIFER: Yes. 22 CROSS EXAMINATION 23 BY MS. PEIFER: 24 Q Tara, the last time I saw you in October we 25 had a discussion, and you knew I was going in for surgery 47 • • 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 I said, as soon as I was healthy enough, I would call her -- I'll call, and I said -- THE COURT: Wait. Wait. You're starting to testify. Please let me finish. Just ask a question. MS. PEIFER: Okay. BY MS. PEIFER: Q Did you not tell me at that time that everything was fine? You gave me pictures of Lilly. Did you not tell me at that time -- A Things were at that time, yes. THE COURT: Wait. The question wasn't finished. Did you not tell me at that time? BY MS. PEIFER: Q At that time that I could continue seeing her as we had been? A You didn't Q Yes, I did. THE COURT: MS. PEIFER: THE COURT: you can ask questions. MS. PEIFER: THE COURT: MS. PEIFER: THE COURT: ask me that. No. You can't say that. I'm sorry. That remark is stricken. Now, Okay. But that's all. I'm sorry. Go ahead. 48 • • 1 THE WITNESS: You didn't ask me about 2 continued visits at that time. And things were a certain 3 way at that time because that was before I got, you know, 4 formal word from Tim that this was what he agreed to do. 5 MS. PEIFER: Your Honor, I don't know how to 6 respond to that because -- 7 THE COURT: You can't respond. 8 MS. PEIFER: Okay. 9 THE COURT: You can ask questions and then 10 later on you can testify again, if you want. 11 BY MS. PEIFER: 12 Q Tara, did we not have an agreement that 13 things would continue on at that time? 14 A No. There was no formally-discussed 15 agreement. I allowed you to see her, yes, which was very 16 infrequent, as far as I'm concerned. You know, my 17 great-grandmother sees her very regularly. Calling once a 18 month to me was not a loving, you know, involvement of a 19 grandparent. 20 Q Tara, it wasn't just -- Tara -- 21 THE COURT: What's the question? 22 MS. PEIFER: Okay. 23 BY MS. PEIFER: 24 Q Did I not call more than once a month? 25 A Not always, no. As I stated before, from the 49 • • 1 time Tim and I separated to the time she put that note in my 2 mailbox, it was months and months that she did not contact 3 me to have visitation. 4 THE COURT: What was the date of separation? 5 THE WITNESS: February of 2004. 6 THE COURT: Okay. All right. 7 MS. PEIFER: No more questions. 8 THE COURT: No other questions? 9 MS. PEIFER: No. 10 THE COURT: Okay. Mr. Peifer, do you have 11 any questions of the witness? 12 MR. PEIFER: No, Your Honor. 13 THE COURT: And do you have -- Ms. Finkboner, 14 do you have any further testimony as a result of those 15 questions? 16 THE WITNESS: Yeah. I would like to say 17 that, you know, Linda's aware of -- we both -- whether she 18 wants to admit it now or not, protected Lilly from seeing 19 Tim because she didn't know who he was, and you know, Lilly 20 was not even able to go to their own residence because no 21 one ever knew whether he was going to be there or not, and 22 we all knew that it would be confusing for her. 23 So for any of them to stand here now and act 24 like, you know, that wasn't something across the board for 25 all of us, it absolutely was. I mean his brother was one of 50 • • 1 the ones that called me. They immediately put her in the 2 car, and we met -- you know, had to meet at a gas station to 3 get her out of this kind of situation, you know, this kind 4 of stuff occurring. 5 And, you know, I tried to allow, you know, 6 them to see her. Was it involvement like a normal family? 7 Absolutely, I don't think so. You know, like I said, 8 calling once a month, never offering -- you know, all of the 9 trouble we had financially, and through nursing school, to 10 watch her during the day while we had things to do, my 11 family did those things until I graduated. 12 THE COURT: Okay. Ms. Peifer, do you have 13 any further questions of this witness? 14 MS. PEIFER: I do not. 15 THE COURT: And, Mr. Peifer, do you have any 16 further questions? 17 MR. PEIFER: No, Your Honor. 18 THE COURT: Okay. You may step down. Thank 19 you. Ms. Finkboner, do you have any further witnesses to 20 call? 21 MS. FINKBONER: No, I do not. 22 THE COURT: A11 right. Ms. Peifer, do you 23 have any rebuttal witnesses? In other words, witnesses that 24 you want to call, including yourself, to respond to the case 25 that was just presented? 51 • • 1 MS. PEIFER: Yes, Your Honor, I do. 2 THE COURT: Okay. 3 MS. PEIFER: I did have -- 4 THE COURT: Now, wait. Do you want to call a 5 witness? 6 MS. PEIFER: Oh, myself. 7 THE COURT: If you want to call yourself, 8 then you'll have to come forward and be sworn. g Whereupon, 10 LINDA I. PEIFER 11 having been duly sworn, testified as follows: 12 DIRECT EXAMINATION 13 THE COURT: Would you state your name again 14 for the record? 15 THE WITNESS: Yes. Linda Peifer. 16 THE COURT: Okay. 17 THE WITNESS: 517 Warren Street, Lemoyne, 18 Pennsylvania, 17043. 19 THE COURT: Okay. Go ahead. 20 THE WITNESS: First of all, I think that this 21 hearing was because I wanted visitation rights with my 22 granddaughter. I didn't know it was something that we were 23 all going to be bashing each other. I'm not saying I'm the 24 best, but I raised eight children and grandchildren, and 25 Tara's a good mom. Her grandmother is good. Her mother has 52 • • 1 issues. I'm not, you know, here to talk about other people 2 and their personal issues, but I did try to keep -- I 3 probably -- and I even told this to Tara. I probably saw 4 Lilly more than some of my other grandchildren. 5 I do work, and if I didn't have her, I turned 6 her over to very reliable people. I did raise two of my 7 granddaughters. There was never a problem or an issue. I 8 watched another one of my grandsons while his mom went to 9 school. It's always been hard to maintain a relationship 10 with Tara. She's just difficult for me to maintain a 11 relationship with. 12 But my son is trying really hard to get back 13 on his feet. He's made mistakes. People make mistakes, but 14 he has changed, and I admire him for what he's doing. He's 15 catching up with his child support. He loves his daughter. 16 I've seen how he reacts, and I have a hard time feeling that 17 Lilly doesn't remember him. I mean in a picture, okay, but 18 I do -- he talked to her on her birthday last year, and she 19 remembered, and I guess he didn't think to bring that up. 20 But I didn't think this was a hearing for his 21 -- you know, his custody rights, but just that I could 22 maintain a relationship. I want to be there and to see her 23 grow up like I did my other grandchildren, you know. I want 24 to be a part of it, and I just can't see that a child could 25 not benefit -- we're a big family, but we're a loving 53 • • 1 family, and I just wanted Lilly to be a part of it. 2 I don't want to fight with Tara. I don't 3 want to fight with her grandmother or anybody. I just, you 4 know -- and it is true that we did say when I left her that 5 October afternoon, after spending a wonderful day with Lilly 6 -- I said everything -- you know, when I get back from, you 7 know, my surgery, everything will be okay. She had just 8 gotten the news that they had gotten their house, and I was 9 happy for her and her husband. I have never, you know -- 10 she is a good mom, and we all love our children. So why 11 can't we love our grandchildren? 12 This just seems -- you know, this is 13 confusing. I would just like to know what she's told Lilly 14 happened to us. 15 THE COURT: Okay. What is your background? 16 What is your date of birth? 1~ MS. PEIFER: October 28th, 1942. lg THE COURT: And what is your educational 19 background? 20 MS. PEIFER: High school graduate. One year 21 of nursing school. 22 THE COURT: Do you have a Bachelor of 23 Science? 24 MS. PEIFER: No. Just one year. I didn't 25 complete. I got married and had eight children. 54 t • 1 THE COURT: And are you employed now? 2 MS. PEIFER: Just part-time. I work for a 3 store. I have a li mited i ncome. My husband is retired and 4 -- 5 THE COURT: So you're a homemaker? 6 MS. PEIFER: I am. '7 THE COURT: Basically? g MS. PEIFER: Basically. g THE COURT: And what is your house like? Do 10 you own your own house? 11 MS. PEIFER: Yes. 12 THE COURT: And how many rooms? 13 MS. PEIFER: Four bedrooms, a living room, 14 dining room, kitchen, one and a half baths. 15 THE COURT: And who lives there? 16 MS. PEIFER: Right now I live there with my 17 husband and my son and his fiance, are staying with us. He 18 just gr aduated from colleg e and needed to stay there. lg THE COURT: This is your other son? 20 MS. PEIFER: This is Benjamin. I have seven 21 boys. 22 THE COURT: Okay. So there are four people 23 in the household? 24 MS. PEIFER: Yes. 25 THE COURT: Okay. Mr. Peifer, do you have 55 • • 1 any questions of this witness? 2 MR. PEIFER: No, Your Honor. 3 THE COURT: Ms. Finkboner. Go ahead. 4 MS. FINKBONER: Yes. 5 CROSS EXAMINATION 6 BY MS. FINKBONER: ~ Q Do you think -- how many days was it that you 8 were asking for visitation? g A In this petition I asked to see her -- 10 actually four days a month. 11 Q Have you ever seen her four days a month 12 before? 13 A Probably back when she was still visiting 14 Tim, yes. I saw her probably a lot more often than that. 15 Q So financially do you think that you're able 16 to care for her on those days, considering there have been 17 instances where she hasn't had the proper things? 18 A Yes. 19 Q Did you have heat in your house this winter? 20 A Yes. 21 4 Are you sure? 22 A Yes, we had heat. There were maybe a couple 23 of times when we ran out of oil, but we got heat. 24 MS. FINKBONER: No further questions. 25 THE COURT: Okay. Any further testimony as a 56 • • 1 result of those questions? 2 MS. PEIFER: No. 3 THE COURT: Okay. You may step down. Thank 4 you. Mr. Peifer, do you have any further testimony to give 5 or witnesses to call? 6 MR. PEIFER: No, Your Honor. 7 THN COURT: And tell me the correct spelling 8 of your name. It's spelled different ways. 9 MS. FINKBONER: It's F-i-n-k-b-o-n-e-r. 10 THE COURT: Finkboner. Okay. Do you have 11 any further witnesses to call? 12 MS. FINKBONER: No. 13 THE COURT: All right. Ms. Peifer, what 14 exactly are you asking for? 15 MS. PEIFER: I'm asking if I could resume my 16 time to spend with my granddaughter. I thought a reasonable 17 amount of time, if it isn't too much trouble for Tara, I 18 would make it every other weekend for, you know, a day, you 19 know, whatever -- I wanted to be flexible with her schedule. 20 Sundays would be great for me. I would like 21 to have her be a part of our family during the holidays. 22 Not necessarily on the day, but sometime during the week so 23 we could give her presents and she could be with her cousins 24 and aunts and uncles. 25 I would like to be able to have her come to a 57 • • 1 4th of July picnic at least every other year. I don't want 2 to monopolize all of her family time, but I think, again, 3 that it's so much fun when all of our family gets together, 4 that she would benefit from that. Her birthdays. The same 5 goes for her birthday. I don't have to see her on her 6 birthday, but we would love to be able to be a part of that 7 celebration as well. We have pictures. We have every 8 birthday she's had so far except this one, she's been with 9 us. 10 THE COURT: And, Mr. Peifer, I assume you're 11 in agreement with your mother as to what is being requested? 12 MR. PEIFER: Absolutely, Your Honor. 13 THE COURT: Okay. Ms. Finkboner, what is 14 your position? 15 MS. FINKBONER: My position is that, as I 16 said, the visitation was not frequent like people are saying 17 that it was. My daughter has weekly classes that she sees 18 those people more than she saw their family members, and 19 that was when I was open to the visitation. They didn't 20 call like I feel normal family members do. Her grandfather, 21 Linda's husband, has never once called to ask. Other 22 members of the family -- 23 THE COURT: Well, you're starting to say 24 things that weren't made a part of the record. I'm just 25 interested in your argument as to what you want. 58 • • 1 MS. FINKBONER: And also this sudden, you 2 know, kinship, that was not there between Tim and his 3 mother. They hadn't spoke for, you know, months, almost a 4 year, whatever time, when Tim was in full agreement before 5 this with me, though he's not saying that now. 6 I think it's extremely detrimental to my 7 daughter to let her go over there and let her participate in 8 these activities as a family when she does not see herself 9 that way. She doesn't recognize, you know, who is her 10 father. She's going to be subject to these visitations with 11 him being there. 12 I think it's very confusing to her. She only 13 knows my husband as her father and my family basically. And 14 there were opportunities for them to be more involved. And 15 I think mentally it would be extremely difficult for her to 16 handle finding out that the person she calls dad, you know, 17 isn't, which I'm sure that will happen some day because 18 she's 4 years old right now, you know, and as I said, that 19 was because of things that Tim choose. You know, he had 20 very good visitation and things, and we wouldn't be here if 21 it weren't for that. 22 THE COURT: Okay. Very good. What I'll do 23 is take the matter under advisement and think it over for a 24 little bit and then enter an order, and at this point we 25 will enter this order: 59 • • 1 AND NOW, this 21st day of July, 2006, upon 2 consideration of the Petition for Partial Custody and 3 Visitation filed by Linda I. Peifer with respect to her 4 grandchild, Lillian Peifer (date of birth, April 1, 2002), 5 and following a hearing, the record is declared closed, and 6 the matter is taken under advisement. 7 (End of order.) 8 THE COURT: And I will enter an order within 9 a day or so. Thank you very much, and court is adjourned. 10 (Whereupon, the proceedings concluded at 11 10:47 a.m.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 60 t • CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of same. Michele A. Eline Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. -~ ~ y °°.~ Date nth Judicial District 61 LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW TIMOTHY PEIFER and / TARA FINKBONER, Defendants N0.06-1743 CIVIL TERM *~~* TARA PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW TIMOTHY PEIFER, Defendant N0.04-191 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., September 14, 2005. In this custody case, a mother has appealed to the Superior Court from an order which granted partial physical custody of a four-year-old child to the child's paternal grandmother for nine hours every two weeks.' The child's parents separated in February of 2004,2 and in October of 2005 the mother terminated all contact between the child and the father and his family.3 The child's paternal grandmother filed a Petition for Partial Custody and Visitation with respect to her grandchild.4 Following an interesting hearing at which the ~ Notice of Appeal, filed August 8, 2006. 2 N.T. 50, Hearing, July 21, 2006 (hereinafter N.T. ~. s N.T. b. ° Petition for Partial Custody and Visitation, filed March 24, 2006. right without a compelling governmental interest that justifies this intervention and classification? This opinion in support of the order appealed from is written pursuant to Pennsylvania Rule of Civil Procedure 1925(a). STATEMENT OF FACTS Plaintiff is Linda I. Peifer, a resident of Lemoyne, Cumberland County, Pennsylvania.8 Defendants are Timothy Peifer, who resides in Harrisburg, Dauphin County, Pennsylvania,9 and Tara Finkboner, who resides in Camp Hill, Cumberland County, Pennsylvania.10 Plaintiff is the paternal grandmother of the subject of this custody proceeding, Lillian Peifer (d.o.b. April 1, 2002),11 and Defendants are the parents of the child.12 In February, 2004, when the child was about two years old, the parents separated.13 A custody order was entered in that month providing for shared legal custody between the parents, primary physical custody in the mother and partial physical custody in the father on a regular basis at specified times.14 Initially the father and the paternal grandmother were able to maintain contact with the child,15 and the relationship between the paternal grandmother and the child was beneficial to both.16 ' Defendant Tara Finkboner's Concise Statement of Matters Complained of on the Appeal, filed August 24, 2006. s N.T. 26. 9 N.T. 16. 10 N.T. 43-44. " See Custody Conciliation Summary Report, filed May 19, 2006; N.T. 3. 12 Decree of Divorce, October 5, 2004, No. 01-191 Civil Term (Cumberland County); see Custody Conciliation Summary Report, filed May 19, 2006. 13 N.T. 50. is Order of Court, February 18, 2004, No. 01-191 Civil Term (Cumberland County). The divorce case in which this order was entered has been consolidated with the more recent custody case at No. 06-1743 Civil Term (Cumberland County). See Order of Court, July 21, 2006. 15 N.T. 26. 16 N.T. 32. 3 The father was less than diligent in exercising his custodial rights,17 and on September 23, 2004, the mother succeeded in obtaining an order by defaulttg giving her "sole legal and sole physical custody" of the child, with the father to "have periods of partial physical custody as the parties agree."' 9 The following month the parties were divorced,20 and within two months of the divorce, the mother had remarried.21 In October of 2005, the mother abruptly terminated all contact between the child and the father and his family.22 Attempts by Plaintiff, the paternal grandmother, to have contact with the child were ignored or rebuffed by the mother.23 The mother's motivation in this regard was her desire to have the child adopted by her new husband.24 The mother's attitude and conduct are described in this excerpt from Plaintiff's testimony: THIS WITNESS: I'm here on behalf of my granddaughter, Lillian. 1 miss her very much. The last time I saw [the child] was the end of October of 2005, and for whatever reasons, her mom has decided that I-or anybody in my family, for that matter-when up to that point we've all had a very loving, happy relationship 25 ~**~ ... I just was told after I tried calling [the mother]-well, the last time I brought Lilly home I even said to her, you know, everything's good. I was going for surgery. I said, I'll get in touch with you, and I tried and tried repeatedly afterwards, and she wouldn't answer the phone. Nobody would answer. Finally I got in touch with-I think it was [the mother's] grandmother that answered the phone because we had missed Christmas. We had Christmas presents. And I was told by her grandmother, don't bother them during the 17 N.T. 16-17, 19. 18 The father did not attend a custody conciliation conference on the mother's petition to modify the custody order. N.T. 21; Order of Court, September 23, 2004, No. 01-191 Civil Term (Cumberland County). i9 Order of Court, September 23, 2004, No. 01-191 Civil Term (Cumberland County). z° Decree of Divorce, October 5, 2004, No. 01-191 Civil Term (Cumberland County). 21 N.T. 6, 10, 20, 26. zz N.T. 17. zs N.T. 27. za N.T. 28, 29. zs N.T. 26. 4 holidays, just leave them alone, and I didn't understand that, but I thought, okay, I'll give that a chance. So I waited, and still didn't get any response until I used a different telephone, and I guess they were caller ID'ing my number, and I spoke with Tara's [the mother's] husband [in January, 2006].26 ... And I spoke with Brett, Tara's husband, and he said, you've been calling for weeks, and I said, Brett, I've been calling for months. I don't understand what's-what's wrong, you know. And he said, Lilly has a new family now. This is almost word for word because I can recall because I was shocked. Lilly has a new family now. You're not a part of it anymore. You can't see her or talk to her anymore. Get on with your life. And he hung up on me?' Ultimately, Plaintiff filed the petition for partial custody of her granddaughter which is the subject of this opinion.28 The father of the child is supportive of Plaintiff' s attempt regain contact with the child.29 At the hearing on Plaintiff's petition, the mother explained her opposition to it as follows: [In anticipation of a voluntary termination of the father's parental rights,30] we made a decision that it would be much less confusing for her to separate [from the father and his family] ... 31 **** ... My husband is the only father that she knows . , , .3z **** ... I think it's a bad situation for her to be in, to start going to all of these holiday things, to be put around a person that she doesn't even know 33 zb N.T. 27. 27 N.T. 27-28. Zs Plaintiffls Petition for Partial Custody and Visitation, filed March 24, 2006. The court sua sponte consolidated this action, at No. 06-1743 Civil Term (Cumberland County), with the prior action between the mother and father, at No. 2004-191 Civil Term (Cumberland County). See Order of Court, July 21, 2006. 29 N.T. 58. 3o It appears that at one point the father had indicated his intent to acquiesce in the mother's request that he give up his parental rights with respect to the child. N.T. 46. However, he changed his mind. N.T.18- 19. 3' N.T. 46. 32 N.T. 47. 33 N.T. 47. S The mother also indicated that she felt that the father had a drinking problem and that an environment in which he might be present and intoxicated would not be conducive to the child's well-being.3a Plaintiff did not accept the mother's contention that the child did not know the father, pointing out that she had known him when they spoke on the child's birthday in 2005.35 While conceding that the father had "made mistakes," 36 Plaintiff said that "he has changed, and I admire him for what he's doing." 37 The evidence at the hearing indicated that Plaintiff was 63 years old, worked part- time, had graduated from high school, and had completed one year of nursing schoo1.38 She owned and lived in afour-bedroom house, with her husband, one of their sons, and the son's fiance.39 The father testified that he strongly supported his mother's desire to maintain her relationship with the child.40 By the conclusion of the hearing, the court was satisfied that the child's well-being in an emotional, physical and spiritual sense was not only not being enhanced by the mother's refusal to permit any contact between the child and the paternal side of her family, but was in particular being deleteriously affected by the deprivation of available love and affection from her grandmother. It also appeared clear that modest periods of partial custody in the grandmother would in no way adversely affect the parent-child relationship of either parent. In these proceedings, no issue was raised by any party as to the constitutionality of Section 5312 of the Domestic Relations Code, relating to certain rights of grandparents to 3a N.T. 42. ss N.T. 53. s6 N.T. 53. 37 N.T. 53. 38 N.T. 54. s9 N.T. 55. ao N.T. 18. 6 partial custody and visitation.41 Nor does the record contain any indication that the Pennsylvania Attorney General was notified of such a challenge as required by Pennsylvania Rule of Civil Procedure 235.42 Following the hearing on Plaintiff's petition for partial custody, the court took the matter under advisement,43 for the purpose of reviewing the state of the law with respect to the rights of grandparents in the area of custody. The order from which the mother has appealed, permitting Plaintiff to have physical custody of her granddaughter for a period of nine hours on Sunday every two weeks, was issued on July 24, 2006.44 Petitions for a supersedeas pending disposition of the appeal were filed by the mother in this court45 and in the Superior Court.46 Both were denied.47 Notwithstanding the foregoing, the mother refused to comply with the order, and she has already been adjudicated in contempt of it.48 DISCUSSION Statement of law. Under Section 5312 of the Domestic Relations Code, it is provided as follows: In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparent of a party, grant reasonable partial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The a' See Act of October 30, 1985, P.L. 264, 23 Pa. C.S. §5312. az "In any proceeding in a court subject to these rules in which an Act of Assembly is alleged to be unconstitutional ...and the Commonwealth is not a party, the party raising the question of constitutionality ...shall promptly give notice thereof by registered mail to the Attorney General of Pennsylvania together with a copy of the pleading or other portion of the record raising the issue and shall file proof of the giving of the notice." Pa. R.C.P. 235 (emphasis added). as Order of Court, July 21, 2006. as Order of Court, July 24, 200b. as Application for Supersedeas, filed August 3, 2006. a6 See Order of Court, Superior Court, at No. 1319 IVIDA 2006, dated August 15, 2006. 47 Order of Court, August 8, 2006, No. 06-1743 Civil Term (Cumberland County); Order of Court, Superior Court, at No. 1319 MDA 2006, dated August 15, 2006. 48 Order of Court, September 13, 2006 (consent order). 7 court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application. Act of October 30, 1985, P.L. 264, § 1, 23 Pa. C.S. §5312. "[T]he paramount concern in both custody and visitation cases, including those in which grandparents are seeking rights, is the best interests of the child." Douglas v. Wright, 2002 PA Super. 181, ¶7, 801 A.2d 586, 591 (citations omitted). Factors to consider in determining the best interests of the child include the child's physical, intellectual, emotional and spiritual well-being. Id. A challenge to the constitutionality of Section 5312 of the Domestic Relations Code on the ground that the legislation constituted an unreasonable infringement upon parental rights was rejected by the Pennsylvania Superior Court in Malone v. Stonerook, 2004 PA Super. 48, ¶7 n.2, 843 A.2d 1278, 1281 n.2: In Troxel [v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000),] the [United States] Supreme Court found the application of a Washington state statute permitting "any person" to petition for visitation impermissibly broad and found that, under the facts of that case, it unconstitutionally infringed on the fundamental right of the parent to make decisions concerning her child. However, the Troxel Court cited with approval statutes comparable to 23 Pa.C.S. § 5311 ("When parent deceased"), which do not contain the broad, sweeping language like that in the Washington statute. Moreover, the Troxel Court determined the trial court erred by placing the burden on the parent to disprove that the best interests of the child would be served by granting visitation with grandparents. Here, we emphasize it is the grandparents' burden to demonstrate partial custody or visitation is in the best interest of the children and will not interfere with the parent-child relationship. Id. at ¶7, n.2, 843 A.2d at 1281 n.2. Furthermore, a challenge to the constitutionality of a statute is waived when it is not presented in the first instance to the trial court. See, e.g., Commonwealth v. Warren, 475 Pa. 31, 379 A.2d 561 (1977). In addition, such a challenge is also waived where there has been a failure to notify the Attorney General of the challenge pursuant to Pennsylvania Rule of Civil Procedure 235. Butler v. Rolling Hill Hospital, 382 Pa. Super. 330, 555 A.2d 205 (1989). Application of law to facts. In the present case, the mother of the child in question has attempted, in a custody content, to effect an involuntary termination of parental rights without benefit of an adjudication to that effect. In the process, she has peremptorily 8 deprived the child of available love and affection from Plaintiff, her paternal grandmother, among others. Based upon the findings indicated above that modest periods of partial custody in the grandmother would be in the child's best interest and that these periods would not adversely affect the parent-child relationship of either parent, and pursuant to the authority provided in Section 5312 of the Domestic Relations Code for relief under the domestic circumstances of this case, it is believed that the order from which the mother has appealed to the Superior Court was warranted. The constitutional challenge raised by the mother on appeal to Section 5312 of the Domestic Relations Code was waived by virtue of the failure to raise it in this court and by the failure to notify the Pennsylvania Attorney General of an intent to raise it. On the merits, it is clear that the rights of parenthood are not constitutionally unlimited where a child's family is no longer intact and the statute in question is narrowly circumscribed in terms of standing and applicability. The rationality of the purportedly unconstitutional intervention and classificationa9 provided for in Section 5312 of the Domestic Relations Code is demonstrated, in the court's view, by the facts of the present case. BY THE COURT, ~'~~ a J. esley Oler, J ., a9 'The objectionable "classification" being referred to in Plaintiff's statement of matters complained of on appeal would appear to be grandparents of children of parents who have been separated for at least six months. 9 r ~rk K. Emery, Esq. 410 North Second Street Harrisburg, PA 17101 Attorney for Plaintiff Linda I. Peifer ~eph D. Caraciolo, Esq. Foreman & Foreman, P.C. 112 Market Street 6~` Floor Harrisburg, PA 17101-2015 Attorney for Defendant Tara Finkboner ~mothy S. Peifer 335 Market Street Apartment 3A Harrisburg, PA 17101 Defendant, pro Se :rc 10 °~'~~ -, LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW TIMOTHY PEIFER, TARA FINKBONER, Defendants 06-1743 CIVIL TERM TARA PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW TIMOTHY PEIFER, Defendant 04-191 CIVIL TERM ORDER OF COURT AND NOW, this 13th day of September, 2006, upon consideration of Plaintiff Linda I. Peifer's Motion for Contempt, Sanctions and Attorney's Fees, and following a hearing which was recessed without completion and at which Linda I, Peifer was represented by Mark K. Emery, Esquire, Tara Finkboner was represented by Joseph D. Caraciolo, Esquire, and Timothy Peifer represented himself, and the parties having reached an agreement in this matter wherein Tara Finkboner admits that she is in contempt of the Order of Court dated July 24, 2006, it is ordered and directed as follows in accordance with the parties agreement: 1. Tara Finkboner is hereby adjudicated in contempt; 2. In the event Tara Finkboner is found in contempt for any future conduct occurring within 1 year of today's date, an award of attorney's fees of $960 will be entered against her as a sanction for such contempt. In the event no such contempt occurs, no sanction or award of attorney's fees will be entered; 3. The Court's Order of July 24, 2006, is further amended to read as follows: (a) All exchanges of the minor child shall occur at ~'~if ~~'~` t ; ^` ~~ ~~ ~'~ ' ~~~ ~~ ~~ ~~ ~~ ' r the Burger King located at the Lemoyne exit off of Interstate 83, further located on Third and Lowther Street. The temporary and partial physical custody awarded to Linda T. Peifer shall commence this immediate Sunday, September 17, 2006. (b) It is agreed by the parties that Tara Finkboner is not required to be present at the exchange of the minor child. (c) Linda I. Peifer agrees to have a suitable and legal car seat available in her car or other vehicle that is used for transportation. (d) There shall be no excessive drinking or smoking while the minor child is present. (e) There shall be no disparaging comments or other antagonistic conduct between the parties. By the Court, J. Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 For Linda I. Peifer Joseph D. Caraciolo, Esquire 112 Market Street, 6th Floor Harrisburg, PA 17101-2015 For Tara Finkboner Timothy Peifer, Pro Se 335 Market Street, Apt. 033 Harrisburg, PA 17101 .~'~ pcb LINDA I. PEIFER, Plaintiff/Respondent vs. TIMOTHY PEIFER and TARA FINKBONER (petitioner), Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1743 Civil Term CIVIL ACTION -LAW EMERGENCY PETITION FOR CONTEMPT OF ORDER OF COURT 1. The petitioner, Tara Finkboner, is Mother, an adult individual currently residing at 2119 Wentworth Drive, Camp Hill, Cumberland County, Pennsylvania. 2. The respondent, Linda I. Peifer, is a third party adult individual currently residing at 517 Warren Street, Lemoyne, Cumberland County, Pennsylvania. 3. The Defendant, Timothy Peifer, is Father, an adult individual currently residing at 335 Market Street, Apt A, Harrisburg, PA 17101. 4. The subject child to this action is Lillian Peifer, a minor child born on April 1, 2002 currently in the custody of Petitioner, residing at 2119 Wentworth Drive, Camp Hill, Cumberland County, Pennsylvania. 5. On July 24, 2006 Judge Oler, Jr. of the Court of Common Pleas of Cumberland County granted respondent periods of temporary or partial physical custody on alternating Sundays from 10:00 a.m. until 7:00 p.m. See copy of ORDER OF COURT attached and incorporated hereto as Exhibit "A." 6. On August 24, 2006 Respondent filed a Petitioner for contempt and a hearing was scheduled for September 13, 2006. 7. At the hearing, Judge Oler, Jr. further clarified the Order of Court dated July 24, 2006 by listing transportation provisions, and, among other things, a clause that no party shall make disparaging remarks in the presence of the child. (See "Order of Court" Exhibit "B" attached and incorporated hereto). S. On Sunday, September 17, 2006, the child had her first visit with Respondent as ordered by Judge Oler, Jr. 9. When the child returned home, she made numerous comments regarding Petitioner and Petitioner's husband indicating to Petitioner that Respondent had disobeyed the Order of Court, including: A. The child told Petitioner that she was a "Butthead"; B. The child told Petitioner that she was a "Cuthead" (likely a mispronunciation of the word "cunt"; C. The child told Petitioner that she was mean and yells at Respondent; D. The child told Petitioner that Petitioner's husband was only a "pretend daddy." 10. When Petitioner asked the child about these comments, the child indicated that Respondent had said these things to the child. 11. The child indicated that Respondent had called Petitioner a "Butthead," a "Cuthead," (likely a mispronunciation of the word "cunt") and a "poophead." 12. During the child's first two days of school, a letter was sent home indicating that the child had called her teachers a "poopiehead." (See Exhibit "C" attached and incorporated hereto) 13. In the past, the child has never used the words "poopiehead," "Butthead," "Cuthead," (likely a mispronunciation of the word "cunt") or "pretend daddy." 14. In the past, the child has never been sent home for using inappropriate language. 15. The Child indicated to Petitioner that she heard the words from Respondent during her visit on Sunday, September 17, 2006. 16. The terms, "Butthead," "Cuthead," (likely a mispronunciation of the word "cunt") and "poophead" are disparaging. 17. Persons who would use the terms "Butthead," "Cuthead," (likely a mispronunciation of the word "cunt") and "poophead" around the child cannot be considering the best interests of the child. 18. It would be damaging to the child to allow her to be in the presence of a person who uses the terms "Butthead," "Cuthead," (likely a mispronunciation of the word "cunt") and "poophead." 19. Using the terms "Butthead," "Cuthead," (likely a mispronunciation of the word "cunt") and "poophead" around the child is extreme and outrageous conduct that has had a negative effect on the child. 20. The Respondent is in contempt of the Order of Court dated September 13, 2006 by violating the provisions preventing disparaging communications. 21. The child is being harmed by such language, which should be addressed immediately through an emergency hearing and temporary suspension of Plaintiffs custody rights. WHEREFORE, Petitioner requests that this Honorable Court find Respondent in contempt of the Order of Court dated September 13, 2006 and to order Sanctions in the form of reasonable attorney's fees, fines, and a modification of the Order of Court preventing Respondent from having such negative contacts with the ch~l~d. Date: _~ `7 ~- ` C%~ 0 Respectful ` Submi ~~v~ /~ ,. xd, r; ,r .. ,~, ~__. fJos h D. Caraciolo, Esquire ~' 11 Market Street, 6th Floor Harrisburg, PA 17101-2015 ID: 90919 TEL: (717) 236-9391 LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff/Respondent :CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 06-1743 Civil Term TIMOTHY PEIFER and :CIVIL ACTION -LAW TARA FINKBONER (petitioner), Defendants VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. To the extent that any of the averments are based upon an understanding or application of law, I have relied upon counsel in making this Verification. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. ~~ _ .~ ~~ ~~ ~~~ Date: ~ ~~ ~~ ~ ~~~~~ !~ Tara Finkboner LINDA I. PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff/Respondent :CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 06-1743 Civil Term TIMOTHY PEIFER and :CIVIL ACTION -LAW TARA FINKBONER (petitioner), Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Petitioner's Petition for Contempt upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by mailing the same postage prepaid, first class mail, addressed as follows: Timothy Peifer 335 Market Street, Apt 3A Harrisburg, PA 17101 Date:~j `1 ,~ G' ~- Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Respectfully Submitted; ~, ~~. `Jose~h D. Caraciolo, Esquire ~~ Attorney for Plaintiff/Petitioner 112 Market Street, 6th Floor Veteran's Building Harrisburg, PA 17101 Attorney ID Number: 90919 Telephone: (717) 236-9391 Exhibit "A" LINDA I. PEIFER. IN THE COURT OF COMMON PLE<~LS OF Plaintiff CUi~IBERL~AND COUNTY; PE1 ~ TSYLVANIA ~.~. CIVIL ACTION -LAW TIMOTHY PEIFER and T~IRA FINKB ONER, Defendants NO. 06-1743 CIVIL TERM TAR~~ PEIFER. : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION -LAW TIMOTHY PEIFER, Defendant NO. 04-191 CIVIL TERM IN RE: PETITION FOR PARTIAL CUSTODY AND VISITATION BEFORE OLER, ,I. ®RDER OF COURT AND NOW, this 24th day of July, 2006, upon consideration of the Petition for Partial Custody and Visitation filed by Linda I. Peifer with respect to her granddaughter, Lillian Peifer (d.o.b. April 1, 2002), and following a hearing on July 21, 2006. at which Petitioner, the child's mother, Tara Finkboner, and the child's father, Timothy Peifer, repre:>ented themselves, it is ordered and directed as foilaws: 1. The mother shall have legal custody and primary physical custody of the child; ?.The father shall have such periods of temporary or partial ?~ilvsical custody of the child as the parties agree; and _ .Petitioner shall have Temporary or partia ph,;~sicaI custody f she ~~i7iid on aiterrlatin~ Sundays ~ror~ ' 0:00 a.m. until ~:JO p.m. =~! . Nothing herein is intended to preclude the cartes ron~ deviating from the custodial terms of this order by mutual agreement. BY THE COT_~I', ~- _ T!~Wesley OIe~~J`r., T I~ Ta: a Finkboner 21 ~ 9 'v~'enttivorth Drive Camp Hill, PA 17011 Timothy S. Peifer 33 ~ Market Street Apartment 3A Harrisburg, PA 17101 Linda Peifer ,' ~ 17 Vdarren Street Lemoyne, PA 17043 Cour~esy Copy: Mary Etter Dissinger, Esq. ~~~ N. 32"d Street C, mp Hill, PA 17011 ~~Yttno~y'~eof, i hero ltt120 set nt~r M.~ ttls ~I ~ Said Cart «t C~rl~ie, i~. :ltd ~~ `jam ~_`~ ~~ J~ c._ ~~~ Exhibit "B" ~IT~~DA I. PEIFER, Plaintiff s. TIMOTHY PEIFER, TARA FINKBONER, Defendants II~T THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 06-1743 CIVIL TERM ***************** TARA PEIFER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LPW TIMOTHY PEIFER, Defendant 04-191 CIVIL TERM ORDER OF COURT AND NOW, this 13th day of September, 2006, upon consideration of Plaintiff Linda I. Peifer's Motion for Contempt, Sanctions and Attorney's Fees, and following a hearing which was recessed without completion and at which Linda I. Peifer was represented by Mark K. Emery, Esquire, Tara Finkboner was represented by Joseph D. Caraciolo, Esquire, and Timothy Peifer represented himself, and the parties having rea~~hed an agreement in this matter wherein Tara Finkboner admits that she is in contempt of the Order of Court dated July 24, 2006, it is ordered and directed as follows in accordance with the parties agreement: 1. Tara Finkboner is hereby adjudicated in contempt; 2. In the event Tara Finkboner is :found in contempt for any future conduct occurring within 1 year of today's date, an award of attorney's fees of X960 will be entered against her as a sanction for such contempt. In the event nc such contempt occurs, °"10 anCtlOn or award Uf a'~tOrn~'~~' S f°~'S W~_1 ,~~ °rlter°d; 3. The ~ourt's Order of July L'4, ~?00~, -s further amended ~o _~a~' ~:= ~~ -~ low., . ~a ~ ~~- exchan~~s .,~ ~:r~e minor chi=_d s:~a1~ o_~~u r _ _ a _. t'nc: Burger King located at the Lemoyne exit off of Interstate 83, further located on Third and Lowther Street. The temporary and partial physical custody awarded to Linda I. Peifer shall commence this immediate Sunday, September 17, 2006. (b) It is agreed by the parties that Tara Finkboner is not required to be present at the exchange of the minor child. (c) Linda I. Peifer agrees to have a suitable and legal car seat available in her car or other vehicle treat is used for transportation. (d) There shall be no excessive drinking or smoking w:r~ile the minor child is present . (e) There shall be no disparaging comments or other antagonistic conduct between the parties. By the Court, Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 For Linda I. Peifer Joseph D. Caraciolo, Esquire 112 Market Street, 6th Floor Harrisburg, PA 17101-2015 r or Ta~~-~ Finkboner Timothy Peifer, Pro Se 335 Market Street, Apt. 033 Har~^ isb-~rq, PA 17101 ;~ cb J. ~.e ~~~ ~© '~ llaitl~llldl8'I~BOrf , ~ h~t~ ,gip $~ ~ ~ `~ ~ ",~ ~l' CdF~~S19~ P's. c i' r--~ __._.i 1 ~ i _~ Exhibit "C" { 'r Name ~ I~L ~ r ~ CLASS NEWS i ~~-~ Mornin Afternoon 4tr 1 ~ DISPOSITION Cheerful Attentive Energetic Shared with others ~" ~~ Inquisitive Talkative Shows cunosity and interest Defiant Followed Directions Did not share with others Tired Mischievous Did not participate much today COOPERATNE Circle Academic Time Playtime DISRUPTIVE Circle Academic Time Playtime LUNC~IISNACK REST TIME: Nice table iaanners I ate everything ADDITIONAL COMMENTS (OVER} I wasn't very hun~y Yes No ', ~ , Teactte3~:. % ~'~< ' GdG Date J 1 ~ ~ ~ ~ ~~~ ~ ~.~~~_ j~ ~ 4 , ~r,, ~ Y~:l ! ~ ~~ ~~~~ ~_ ~ ,~ , ~ ~~1 ~~L.~G ~~~~~ ~ ~~~ ~~~ C..~/~ ~ ~ '~ LX ~ / L~,7--i! ~ , r ~~~~ ~~ ~ .~ ~ ~;/ ~~~r , f ~- '~~ ~~----~'G~ ~~ //'''~ ~ ,~) _~ ~ ~L~; i ~1`V. ~~ &' y J~ `~• lf~ ~.,1~ ~4 '•, l 1. ~... ti C`y ~S > , ~ ', ._-~ ~- } . - ~. ' LINDA I. PEIFER, Plaintiff v. TIMOTHY PEIFER and TARA FINKBONER, Defendants IN THE COURT O~ COMMON PLEAS OF CUMBERLAP~ COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 06-1743 CIVIL TERM ORDER OF COURT AND NOW, this 2"d day of October, 2006, upon consideration of Defendant Tara Finkboner's Emergency Petition for Contempt of Order of Court, this matter is referred to the custody conciliation process pursuant to C.C.R.P. 1915.12-1, and the Court Administrator is requested to facilitate this referral. BY THE COURT, ~AOrark K. Emery, Esq. 410 North Second Street Harrisburg, PA 17101 Attorney for Plaintiff ~mothy Peifer 335 Market Street Apt. 3A Harrisburg, PA 17101 Defendant, pro Se '~oseph D. Caraciolo, Esq. 112 Market Street, 6`i' Floor Veteran's Building Harrisburg, PA 17101 Attorney for Defendant Tara Finkboner Court Administrator's Office ,~%!.~~,/~~=~~ tQ/~ia6 ~ :rc ~y ~~ , s , ~,, ~ _,~,a -~r,r~•~ s ~ s t ..ai"~~ ~'...' LINDA I. PEIFER IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. TIMOTHY PEIFER AND TARA FINKBONER DEFENDANT • 06-1743 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Friday, October 06, 2006 ,upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Dawn S. Sunday, Esq. ,the conciliator, at 39 West Main Street, Mechanicsburg, PA 17055 on Thursday, November 09, 2006 at 9:00 AM 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 be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ Daum S. Sunda , Esg_~~ Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 ~ ~ ~`~~ ~ ~~ oi- o~ ~.~ ~, ~; ~ ~t„ ~ ,:~_~ _~ ~` ~~ .. w ,.... ~ "'~~i NOV 15 2006 d~~ LINDA I. PEIFER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. 06-1743 ~ CIVIL ACTION -LAW TIMOTHY PEIFER AND TARA FINKBONER, TARA PEIFER, Defendants IN CUSTODY ***************************** Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. TIMOTHY PEIFER, Defendant 04-191 CIVIL ACTION -LAW IN CUSTODY ORDER OF COURT AND NOW, this ~~ day of ~ .~ ~ 2006, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. The parties shall participate in therapeutic family counseling with Interworks or other professionals selected by agreement of the parties. The purpose of the counseling shall be to address conflicts which have arisen within the family in an effort to establish a positive and cooperative environment and reduce the harmful impact of conflict on family members, particularly the Child. The parties shall obtain a recommendation from the counselor as to the advisability of separate counseling for the Child. The parties shall engage in a minimum of four joint or individual sessions, unless determined to be unnecessary by the counselor. The parties shall contact the counselor's office within seven days following the custody conciliation conference to schedule the initial sessions. w 2. The parties may contact the conciliator to request the scheduling of an addition custody conciliation conference within sixty days following the completion of counseling. cc: Timothy Peifer - Father - Joseph D. Caraciolo, Esquire -Counsel for Mother ~ ~"~`'`~ ~~ ~ ~~ Mark K. Emery, Esquire -Counsel for Paternal Grandmother per-. BY THE COURT, ~~~~ 4'' ~~~ ~ ~ ~~~ f' o~~' oa ~' QP ~ C~ o C,~` LINDA I. PEIFER, Plaintiff v. TIMOTHY PEIFER AND TARA FINKBONER, Defendants TARA PEIFER, v. Plaintiff TIMOTHY PEIFER, Defendant Prior Judge: J. Wesley Oler, Jr. 1N CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Lillian Peifer April 1, 2002 Mother 2. A Custody Conciliation Conference was held on November 9, 2006, with the following individuals in attendance: The Mother, Tara Finkboner, with her counsel, Joseph D. Caraciolo, the Father, Timothy Peifer, who is not represented by counsel in this matter, and the paternal Grandmother, Linda Peifer, with her counsel, Mark K. Emery. IN THE COURT OF COMMON PLEA5 OF CUMBERLAND COUNTY, PENNSYLVANIA 06-1743 CIVIL ACTION -LAW IN CUSTODY ************************** IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-191 CIVIL ACTION -LAW 3. The parties agreed to entry of an Order in the form as attached. 4. It should be noted that the Mother's Petition for Contempt was transferred to the undersigned conciliator due to a conflict in Melissa Greevy's office, with whom it had originally been scheduled. At the conference it was determined that prior proceedings initiated by the Father for Modification in the consolidated case have been held in Jacqueline Verney's office and a conciliation in that office is scheduled for early December. The parties agreed at the conference that all future matters appropriate for conciliation would remain as assigned to Jacqueline Verney. ~~,;ti~.~~~~~ ~ 3; a-o vLP Date Dawn S. Sunday, Esquire Custody Conciliator QEC S 62006 .~~ LINDA I. PEIFER, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA VI. : N0.2006-1743 CIVIL ACTION -LAW TIMOTHY PEIFER and TARA FINKBONER, . Defendants : IN CUSTODY TARA PEIFER, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA VI. : N0.2004-191 CIVIL ACTION -LAW TIMOTHY PEIFER, Defendant IN CUSTODY ORDER OF COURT AND NOW, this ~~i day of ~cL. , 2006, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. The prior Orders of Court dated July 24, 2006, September 13, 2006 and November 18, 2006 shall remain in full force and effect with the following additions to the Order of Court dated November 18, 2006: 2. Paternal Grandmother shall have periods of partial physical custody on alternating Sundays from 8:00 a.m. to 7:00 p.m. Father and Paternal Grandmother shall share said 11 hours as agreed. 3. Father shall have reasonable telephone contact with the child every Wednesday at 8:00 p.m. In the event that child is unavailable at that time, Mother shall assure that the child returns Father's call. 4. This Order is entered pursuant to a. Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. Any party may contact the Custody Conciliator and schedule another Custody Conciliation Conference. L° oQ ~ ~~ ~~Q ~0 ~~t~~0 ~d d ~~ ~~ G~. ~ u~ ~~a,- cc~mothy Peifer, pro se 335 Market Street Harrisburg, PA 17101 os ph D. Caraciolo, Esquire, Counsel for Mother ~k Emery, Esquire, Counsel for Grandmother y TRUE COQ F~~?~! ~E~Rt . hie ~ ofi sale ~~~,,~ ~~;^ t Ca-~e, Pa. .~ T2 V TT1T: t`!1T TD T LINDA I. PEIFER, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. : N0.2006-1743 CIVIL ACTION -LAW TIMOTHY PEIFER and TARA FINKBONER, Defendants : IN CUSTODY TARA PEIFER, Plaintiff v. TIMOTHY PEIFER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0.2004-191 CIVIL ACTION -LAW IN CUSTODY PRIOR JUDGE: J. Wesley Oler, Jr., J. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Lillian A. Peifer April 1, 2002 Mother 2. A Conciliation Conference was held in this matter on December 21, 2006. Present at the conference were Father, Timothy Peifer, pro se; Mother, Tara (Peifer) Finkboner, with her counsel, Joseph D. Caraciolo, Esquire; and Paternal Grandmother, Linda I. Peifer, pro se. 3. The Honorable J. Wesley Oler, Jr. previously entered Orders of Court dated July 24, 2006, September 13, 2006 and November 18, 2006 providing for shared legal custody by Mother and Father, Mother having primary physical custody, Father having periods of partial physical custody as agreed and Grandmother, having 9 hours on alternating Sundays. 4. The parties agreed to an Order in the form as attached. 12-22-ok Date ac line M. Verney, Esquire Custody Conciliator APR 8 6 2007 LINDA I. PEIFER, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA VI. : N0.2006-1743 CIVIL ACTION -LAW TIMOTHY PEIFER and TARA FINKBONER, . Defendants : IN CUSTODY TARA PEIFER, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA VI. : N0.2004-191 CIVIL ACTION -LAW TIMOTHY PEIFER, Defendant IN CUSTODY ORDER OF COURT AND NOW, this 25~' day of April, 2007, ninety days having passed since the prior Order of Court and no parry has requested another Conciliation Conference, the Conciliator hereby relinquishes jurisdiction in this matter FOR THE COURT, / "~ Jacq line M. Verney, Esquire, Cust y Conciliator . ~c, z -1 ~ ~`y e ... • ~~ 97 ~~~~ ~~ «,ky ~ Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Fsq. Deputy Prothonotary TO: Mr. Curtis R. Long Prothonotary w . Superior Court of Pennsylvania Middle District April 12, 2007 Certificate of Remittal/Remand of Record RE: Peifer, L. v. Peifer, T., etal No.1319 MDA 2006 Trial Court/Agency Dkt. Number: 06-1743 Civil Term Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: 100 Pine Street. Suite 400 Hamsburg, PA 17101 717-772-1294 www. superior. court. s tate. 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 Part Supplemental Part Date of Remand of Record: Filed Date September 19, 200E October 13, 2006 MAY~~~ Description 1 1 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. • t Signature Printed Name Date /aaw s•~, ~__ S ~~1 i ~...~.^' Ste' ...~.. ..~ r+^'". ..~d~r. .J - ~ i ~.7 - aN' _ ~:. .. t { ~ ,. -"~l ,s y r h,~ ..'.'d f r:t .-C. L J. A06006/07 NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT I.O.P. 65.37 LINDA PEIFER v. TIMOTHY PEIFER AND TARA FINKBONER APPEAL OF: TARA FINKBONER IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1319 MDA 2006 Appeal from the Order entered July 24, 2006, in the Court of Common Pleas of Cumberland County, Civil, at No. 06-1743 Civil Term. BEFORE: HUDOCK, TODD and MCCAFFERY, JJ. MEMORANDUM: FILED: April 12, 2007 Tara Finkboner (Mother) appeals from the order of the trial court that granted Linda Peifer (Grandmother) visitation. We affirm. Mother and Timothy Peifer (Father) separated in February 2004. Father is Grandmother's son. Mother and Father are the parents of Lillian, born April 1, 2002. Following Mother and Father's separation and subsequent divorce, Mother remarried. Originally, Mother had primary physical custody of Lillian, while Father was awarded partial physical custody. Because Father did not always take advantage of his custody times, however, Mother petitioned for modification. After Father failed to appear at a conciliation conference, Mother, by order of court dated September 23, 2004, was awarded sole custody of Lillian with partial custody awarded to Father as agreed to by them. J. A06006/07 On March 25, 2006, Grandmother filed a petition for partial custody and/or visitation. In this petition, she asserted that it would be in Lillian's best interest if she was awarded partial custody and/or visitation because she had developed a loving relationship with the child since the child was born and that Mother and her new husband had recently prevented her from having contact. A custody conciliation conference was held and, on May 16, 2006, a summary report was filed. The testimony of Grandmother was summarized as follows: She testified that Mother and her new husband cut off all contact with Lillian in October 2005. In particular, Grandmother testified that she was informed by Mother's new husband that Lillian had a new family. She also stated that she visited with Lillian, with Mother's approval, after Mother and Father separated and stated that Mother is a good mother. Mother's testimony was summarized as follows: Mother testified that she remarried in 2004, that her new husband was seeking to adopt Lillian, and she opined that Father would relinquish his parental rights. According to Mother, it would be in Lillian's best interest if Mother and her husband formed a new family with Lillian, and that it would be too confusing to Lillian if there was continued contact with Father and Grandmother. Mother acknowledged that she and her new husband had taken Lillian to visit with Grandmother and further acknowledged that she had cut off contact. Mother -2- ]. A06006/07 did dispute, however, the frequency with which Grandmother visited with Lillian prior to the filing of the petition for partial custody and/or visitation. Because the parties could not reach an agreement, the matter was scheduled for a custody hearing, which was held on July 21, 2006. Mother, Father and Grandmother all appeared pro se. Mother and Grandmother basically reiterated their positions. Father acknowledged missing the prior custody conciliation conference, but testified that since that time Mother had thwarted his attempts to see Lillian and that he had been pressured to relinquish his parental rights. Father further stated that he would be filing his own custody petition soon and fully supported Grandmother's petition for partial custody and/or visitation. At the close of testimony, Grandmother stated that she did not wish to interfere with the parent-child relationship and would accept visitation with Lillian for a day on every other weekend. Mother stated that Grandmother's visits with Lillian were never frequent and that it would be "extremely detrimental" for Lillian to spend time at Grandmother's house. N.T., 7/21/06, at 59. By order dated July 24, 2006, Grandmother was awarded temporary or partial physical custody of Lillian on alternating Sundays from 10:00 a.m. until 7:00 p.m. This appeal followed. Mother's requests for a supersedeas filed with both the trial court and this Court were denied. Both Mother and the trial court have complied with Pa.R.A.P. 1925. Mother raises the following issues on appeal: -3- ]. A06006/07 1. Whether the trial court abused its discretion, drawing conclusions unsupported by the record, in granting partial physical custody to [Grandmother] where there are no facts in the record as to the best interests of the child., [sic] or that partial physical custody with [Grandmother] is in the best interest of the child. 2. Whether the provisions of 23 Pa.C.S.A. §5312 are unconstitutional in that they violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by creating a legislative classification regarding a fundamental right without a compelling governmental interest that justifies this intervention and classification. Mother's Brief at 4. "Whether the matter concerns custody or visitation, our paramount concern is the best interest of the child. This is equally true in cases involving whether grandparent visitation rights should be awarded." Norris v. Tearney, 619 A.2d 339, 340 (Pa. Super. 1993) (citation omitted). As this Court has further summarized: In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported in the record, nor are we bound by the court's inferences drawn from the facts. However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Only where we find that the custody order is manifestly unreasonable as shown by the evidence of record will an appellate court interfere with the trial court's determination. Douglas v. Wright, 801 A.2d 586, 590 (Pa. Super. 2002) (citation omitted). The grandparent who wishes to visit with his or her grandchild "has the burden to prove that it is in the child's best interest to have 'some -4- ~. Ao6oo6/07 time' with the grandparent." Bishop v. Pi/ler, 581 A.2d 670, 672 (Pa. Super. 1990). "The burden is lower," however, "than in a custody or partial custody situation since the amount of time that the child would be away from his parent is less." Id. As provided by statute, a grandparent may be granted partial custody and/or visitation rights if the court finds that such award would be in the best interest of the child and would not interfere with the parent-child relationship. 23 Pa.C.S.A. § 5312. In her first issue on appeal, Mother asserts that the trial court erred in concluding that Grandmother met this burden. Before reaching the merits of this issue, however, we must consider Grandmother's claim that this appeal should be quashed because Mother, by order dated September 13, 2006, had been adjudicated in contempt of the trial court's visitation order. As this Court has stated: An order issued by a court with jurisdiction over the subject matter and the person must be obeyed by the parties until it is reversed by orderly and proper proceedings. Generally, where the disobedience of a court order is a flagrant one and where the appellant has been held in contempt or given an opportunity to present an excuse for the disobedience and the excuse is not acceptable, then a denial of an appeal should follow. However, the Superior Court is not compelled to sua sponte quash an appeal when the appellant is in contempt of the trial court's order if a discussion of the merits of the case would provide edification to both bench and bar. Hi// v. Divecchio, 625 A.2d 642, 645 (Pa. Super. 1993) (citations omitted). In the present case, while Mother initially did not obey the trial court's directive to allow Grandmother to visit with Lillian, and a finding of contempt -5- ]. A06006/07 was made, the record evinces that a subsequent agreement was reached between the parties regarding Mother`s concerns about custody exchanges. It was also confirmed at oral argument that Mother has complied with the custody order in that Grandmother now sees the child. Given these circumstances, we will not quash the appeal. In support of her first claim, Mother asserts that the trial court awarded Grandmother partial custody periods even though there was no evidence of what would be in Lillian's best interest. According to Mother, the "record reveals a dearth of testimony regarding the Child's interest, but instead is swelled with testimony relating to the best interest of the parties." Mother's Brief at 8. In essence, Mother complains that the trial court abused its discretion by considering the best interest of Grandmother rather than Lillian in making its July 24, 2006, order. We cannot agree. At the custody hearing, Mother stated that she and her new husband decided to cut off all contact with Father's family because they believed new husband would be adopting the child and, therefore, continued contact with Father's family would be confusing to her. It is disingenuous for Mother to argue the lack of contact between Grandmother and Lillian given these actions. Moreover, it is clear that Father is no longer willing to relinquish his parental rights. He testified that he has been making child support payments and will be filing his own petition for modification of custody once he hires legal counsel. Given this evidence heard by the trial court, we -6- J. A06006/07 cannot find it abused its discretion in awarding Grandmother periods of partial custody with Lillian. Most importantly, the trial court accepted Grandmother's testimony that she has developed a loving relationship with Lillian and found that an additional loving adult in the child's life would only work to her benefit: By the conclusion of the hearing, the court was satisfied that the child's well-being in an emotional, physical and spiritual sense was not only not being enhanced by [Mother's] refusal to permit any contact between the child and the paternal side of her family, but was in particular being deleteriously affected by the deprivation of available love and affection from her grandmother. It also appeared clear that modest periods of partial custody in the grandmother would in no way adversely affect the parent- child relationship of either parent. In the present case, [Mother] has attempted, in a custody context, to effect an involuntary termination of parental rights without benefit of an adjudication to that effect. In the process, she has peremptorily deprived the child of available love and affection from [Grandmother], her paternal grandmother, among others. Based upon the findings indicated above that modest periods of partial custody in [Grandmother] would be in the child's best interest and that these periods would not adversely effect the parent-child relationship of either parent, and pursuant to the authority provided in Section 5312 of the Domestic Relations Code for relief under the domestic circumstances of this case, it is believed that the order from which [Mother] appealed to the Superior Court was warranted. Trial Court Opinion, 9/14/05, at 6, 8-9. Our review of the record supports the court's conclusion that its granting anine-hour visitation period every two weeks with Grandmother -7- J. A06006/07 would be in the best interest of the child. See Bishop, 581 A.2d at 673 (concluding that "having one more adult to love and care for" the child cannot be viewed as against the child's interests; "[s]ince the polestar of our analysis is the best interests and welfare of the child, we cannot overlook the ultimate result that grandparent visitation is beneficial fora child's development in that it establishes family ties which can continue long beyond childhood.") This is especially true given that Father has changed his mind about relinquishing his parental rights. In her second claim on appeal, Mother challenges the constitutionality of section 5312. This claim is waived for two reasons. First, she has improperly raised it for the first time on appeal. See generally, Pa.R.A.P. 302(a). Second, there is no indication that Mother complied with the notice requirements for her constitutional challenge. See generally, Pa.R.C.P. 235. See also Hill, 625 A.2d at 648 (stating that an appellate court will not consider a challenge to the constitutionality of a statute if the issue has not been raised in the court below or if no notice as been given to the Attorney General). Order affirmed. April 12, 2007 -8- J. A06006/07 Judgment Entered: c e uty Prothonotary Date: APR 12 2007 -9- r- _z .~._. ,~ =' # ,..~', i -2 _ ~ t" _ - ti ~,} ~ -. ~:~:; C;, '~: `; ^,; #