HomeMy WebLinkAbout06-1768
Cara A. Boyanowski, Esquire
Supreme Court J.D. No. 68736
SERRA TELL! SCHIFFMAN BROWN & CALHOON
2080 Linglestown Road
Suite 201
Harrisburg, P A 17110
Telephone: (717) 540-9170
Facsimile: (717) 540-5481
Attorney for Plaintiff
KIMBERL Y M. MID GARDEN,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
NO. Ok. - /7 t-t Cl o~L ~StLL
CIVIL ACTION - LAW
IN CUSTODYNISITATION
JAMES E. MID GARDEN, JR.,
Defendant
COMPLAINT FOR CUSTODY
I. Plaintiff is Kimberly M. Midgarden, an adult individual who currently resides at 261
Deerfield Road, Camp Hill, Cumberland County, Pennsylvania 170 II.
2. Defendant is James E. Midgarden, Jr., an adult individual who currently resides at 429
Black Latch Lane, Camp Hill, Cumberland County, Pennsylvania, 17011.
3. Plaintiff seeks shared legal custody and primary physical custody of the following
children:
Name
Present Residence
Date of Birth
Faith E. Midgarden
261 Deerfield Road
Camp Hill, PAl
429 Black Latch Lane
Camp Hill, P A
March 3, 1993
.
.
Hannah M. Midgarden
261 Deerfield Road
Camp Hill, P A /
429 Black Latch Lane
Camp Hill, P A
March 22, 1994
Emma L. Midgarden
261 Deerfield Road
Camp Hill, P A /
429 Black Latch Lane
Camp Hill, P A
January 27,1998
The children were born in wedlock.
The children are presently in the shared physical custody of Plaintiff who resides at 261
Deerfield Road, Camp Hill, Cumberland County, Pennsylvania 17011, and Defendant who resides at
429 Black Latch Lane, Camp Hill, Cumberland County, Pennsylvania 17011.
4. During the past five years, the children have resided with the following persons and at
the following addresses:
A. Plaintiff Kimberly M. Midgarden
261 Deerfield Road
Camp Hill, Pennsylvania
November I, 2005 - Present
Defendant James E. Midgarden, Jr.
429 Black Latch Lane
Camp Hill, Pennsylvania
November 1,2005 - Present
B. Plaintiff Kimberly M. Midgarden and
James E. Midgarden, Jr.
429 Black Latch Lane
Camp Hill, Pennsylvania
1996 - November 1, 2005
5. The mother of the children is Plaintiff Kimberly M. Midgarden, who currently resides
at 261 Deerfield Road, Camp Hill, Cumberland County, Pennsylvania. She is single. The parties'
divorce action was finalized on December 21, 2005.
6. The father of the children is Defendant James E. Midgarden Jr., who currently resides
at 429 Black Latch Lane, Camp Hill, Cumberland County, Pennsylvania. He is single. The parties'
divorce action was finalized on December 21,2005.
7. The relationship of Plaintiff to the children is that of Mother. The Plaintiff does not
reside with anyone, except the children during her periods of shared physical custody.
8. The relationship of Defendant to the children is that of Father. The Defendant does
not reside with anyone, except the children during his periods of shared physical custody.
9. Defendant filed a custody complaint with this Honorable Court on or about May 27,
2005 at docket number 05-2776 Civil Term. This action was later withdrawn by Defendant because
the parties remained in the same household until November 2005. Additionally, Plaintiff and
Defendant included provisions for shared legal and shared physical custody in their Marriage
Settlement Agreement dated, November 28, 2005, which has been attached to this Complaint as
Exhibit "A."
Plaintiff has no information of a custody proceeding concerning the children pending
in a court of this Commonwealth.
Plaintiff does not know of a person not a party to the proceedings that has physical
custody of the children or claims to have custody or visitation rights with respect to the children.
10. The best interest and permanent welfare of the children will be served by granting the
relief requested because:
A. Plaintiff has been the primary care giver for the children their entire lives.
.
B. Since November 2005, Defendant has demonstrated he is unwilling to co-
parent with Plaintiff, by continuously refusing to advise Plaintiff of notes he receives from the
children's teachers or report cards he receives while the children are in his care and custody, failing
to provide Plaintiff with extracurricular activity calendars, information, and event information in his
possession, and failing to advise Plaintiff of extracurricular activities he enrolls the children in until
they are already signed up for them. Defendant has verbally informed Plaintiff that he will not
comply with the shared legal custody provision, since he knows what is best for his children.
C. Defendant has not demonstrated an ability to effectively assist the parties'
daughter, Hannah, with homework assignments, so much so, that Hannah is now in trouble of failing
her present grade. It is notable that Plaintiff offered Defendant a solution to this problem by asking
that the children be permitted to come to her home directly from school, so she could assist them
with their homework assignments, while Defendant was at work. Defendant rejected Plaintiffs
offer.
D. Defendant has not demonstrated an ability to effectively dispense medication
to the parties' daughter, Hannah, who suffers from autism and ADD. His response to why he does
not regularly give Hannah medication is that she can "take a day off."
E. Defendant refuses to exercise the parties' "right offirst refusal," and routinely
permits the children to be left alone in the house, while he is participating in another child's
extracurricular activity.
F. And other reasons which may fully appear at conference.
11. Each parent whose parental rights to the children which have not been terminated and
the person who has physical custody of the children has been named as parties to this action. There
are no other persons who are known to have a claim or right to custody or visitation in this matter.
WHEREFORE, Plaintiff requests this Honorable Court to grant shared legal custody and
primary physical custody of the children to Plaintiff, Kimberly M. Midgarden.
Respectfully submitted,
SERRATELLI SCHIFFMAN BROWN & CALHOON
Qm~1owsL
Cara A. Boyanows , EsqUIre
Attorney No. 68736
2080 Linglestown Road
Suite 20 I
Harrisburg, PA 17110
(717) 540-9170
Attorney for Plaintiff
VERIFICATION
Upon my personal knowledge, information and belief, I, Kimberly M. Midgarden, do hereby
verify that the facts averred and statements made in the foregoing Complaint are true and correct.
I understand that false statements or averments therein made will subject me to the criminal
penalties of 18 Pa.C.S.A. 94904 relating to unsworn falsification to authorities.
Date: ~/\2b.;2 (:;?;:J{J(p
,/
"--~
James E. Midgarden, Jr.,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
PENNSYLVANIA
vs.
CIVIL ACTION - DIVORCE
Kimberly M. Midgarden,
Defendant
NO. 05-2776
MARRIAGE SETTLEMENT AGREEMENT
AGREEMENT made this d?yLday of N()I)(fMber
, 2005, by and
between James E. Midgarden, Jr. ("Husband"), of Camp Hill,
Cumberland County, pennsylvania and Kimberly M. Midgarden
("Wife") of Camp Hill, Cumberland County, Pennsylvania.
WITNESSETH:
WHEREAS, the parties hereto are Husband and Wife, having
been married on the twenty-SIXTH day of October in 1991. There
were born three (3) children of this marriage, said children
being: Faith Eileen, (DOB 3/03/93), Hannah Marsell (DOB
3/22/94), and Emma Loretta (DOB 1/27/98). The parties have no
other issue, living or deceased, and have no adopted children.
WHEREAS, diverse unhappy differences, disputes and
difficulties have arisen between the parties and as a result they
have lived separate and apart since April 23, 2005. A proceeding
for the divorce of the parties has been filed by Plaintiff
Husband in the Court of Common Pleas of Cumberland County on May
27, 2005, Docket No. 05-2776. It is the intention of Husband and
Wife to live separate and apart for the rest of their natural
lives, and the parties hereto are desirous of settling fully and
finally their respective financial and property rights and
obligations as between each other including without limitation by
specification: the settling of all matters between them relating
to the ownership and equitable distribution of real and personal
property; the settling of all matters between them relating to
the past, present and future support, alimony pendente lite,
alimony and/or maintenance of Husband by Wife and of Wife by
Husband; the settling of all matters between them relating to the
past, present and future support and/or maintenance of their
children; the implementation of custody/visitation arrangements
for their minor children and possible claims by one against the
other and against their respective estates.
NOW THEREFORE, in consideration of the above recitals and
the mutual promises, covenants and undertakings hereinafter set
forth and for other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged by each of the
parties hereto, Wife and Husband, each intending to be legally
bound hereby, covenant and agree as follows:
1. AGREEMENT NOT A BAR TO DIVORCE PROCEEDINGS
This Agreement shall not be considered to affect or bar the
right of Wife or Husband to a limited or absolute divorce on
lawful grounds if such grounds now exist or shall hereafter exist
or to such defense as may be available to either party. This
Agreement is not intended to condone and shall not be deemed to
be a condonation on the part of either party hereto of any act or
acts on the part of the other party which have occasioned the
disputes or unhaPpy differences which have occurred prior to or
which may occur subsequent to the date hereof.
Husband and Wife agree that Husband shall secure a "No-
Fault" divorce based upon irretrievable breakdown of their
-2-
,
marriage, subsequent to the parties' ninety (90) days separation.
Husband and Wife further agree to execute their respective
Affidavits of Consent under Section 3301(c) of the Domestic
Relations Code of Pennsylvania, and to execute any and all other
documents necessary under existing Rules of Pennsylvania Civil
Procedure and local Rules of the Court of Common Pleas of
Cumberland County, Pennsylvania, in order to allow Husband to
immediately file all such documents in the Court of Common Pleas
of Cumberland County, Pennsylvania. Husband and Wife agree one
with the other that the execution of their respective Affidavits
of Consent and their execution of any and all other documents
made necessary to permit the entry of a final Decree in Divorce
by the Court of Common pleas of Cumberland County, Pennsylvania,
shall occur contemporaneously with the execution of this
Agreement. Neither Husband nor Wife shall either directly or
indirectly permit the withdrawal of their respective Affidavits
of Consent or any and all other documents executed by Husband and
Wife subsequent to the execution of the documents.
2. EFFECT OF DIVORCE DECREE
The parties agree that unless otherwise specifically
provided herein, this Agreement shall continue in full force and
effect after such time as a final decree in divorce may be
entered with respect to the parties.
3. INCORPORATION OF AGREEMENT IN DIVORCE DECREE
The purposes of this Agreement are to effect a complete and
final settlement, with reference to each party of:
a. All of the respective property and property rights of
the parties,
b. The obligation of each party for the support of each
other,
-3-
and to effectuate the settlement of the following issues between
the parties:
a. The obligation of each party for the support of the
minor children of the marriage,
b. The custody of the minor children of this marriage.
and the parties agree that the terms of this Agreement shall be
incorporated but not merged into any final divorce decree which
may be entered with respect to them.
4. AGREEMENT NOT TO BE MERGED
This Agreement shall be incorporated into the final decree
of divorce of the parties hereto for purposes of enforcement
only, but otherwise shall not be merged into said decree. The
parties shall have the right to enforce this Agreement under the
Divorce Code of 1980, as amended, and in addition, shall retain
any remedies in law or in equity under this Agreement as an
independent contract. Such remedies in law or equity are
specifically not waived or released.
5. DATE OF EXECUTION
The "date of execution" or "execution date" of this
Agreement shall be defined as the date upon which it is executed
by the parties if they have each executed the Agreement on the
same date. Otherwise, the "date of execution" or "execution
date" of this Agreement shall be defined as the date of execution
by the party last executing this Agreement.
6. DISTRIBUTION DATE
The transfer of property, funds and/or documents provided
for herein shall only take place on the "distribution date" which
shall be defined as the date of execution of this Agreement
unless otherwise specified herein. However, the support payments,
-4-
if any, provided for in this Agreement shall take effect as set
forth in this Agreement.
7. FINANCIAL DISCLOSURE
The parties confirm that each has relied on the substantial
accuracy of the financial disclosure of the other, as an
inducement to the execution of this Agreement.
8. ADVICE OF COUNSEL
The provisions of the Agreement and their legal effect
have been fully explained to the parties by their respective
counsel, Mary A. Etter Dissinger, Esquire, attorney for Husband,
and Cara Boyanowski, Esquire, attorney for wife. The parties
acknowledge that they have received independent legal advice from
counsel of their selection and that they fully understand the
facts and have been fully informed as to their legal rights and
obligations and they acknowledge and accept their legal rights
and obligations and they acknowledge and accept that this
Agreement is, in the circumstances, fair and equitable and that
it is being entered into freely and voluntarily, after having
received such advice and with such knowledge, and the parties
acknowledge that execution of this Agreement is not the result of
any duress or undue influence and that it is not the result of
any collusion or improper or illegal agreement or agreements.
In addition, each party hereto acknowledges that he or she
has been fully advised by his or her respective attorney of the
impact of the Pennsylvania Divorce Code of 1980, 23 P.S. Section
101 et. seq., whereby the Court has the right and duty to
determine all marital rights of the parties including divorce,
alimony, alimony pendente lite, equitable distribution of all
marital property or property owned or possessed individually by
the other, counsel fees and costs of litigation and, fully
knowing the same and being fully advised of his or her rights
-5-
thereunder, each party still desires to execute this Agreement,
acknowledging that the terms and conditions set forth herein are
fair, just and equitable to each of the parties, and waives his
or her respective right to have the Court of Common Pleas of
Cumberland County, or any other Court of competent juriSdiction,
make any determination or order affecting the respective parties'
rights to a divorce, alimony, alimony pendente lite, equitable
distribution of all marital property, counsel fees and costs of
litigation, or any other rights arising from the parties'
marriage.
In addition, each party hereto aCknowledges that, under the
Pennsylvania Divorce Code of 1980, 23 P.S. Section 101 et. sea.,
the Court has the right and duty to determine all marital rights
of the parties including divorce, alimony, alimony pendente lite,
equitable distribution of all marital property or property owned
or possessed individually by the other, counsel fees and costs of
litigation and, 'fully knowing the same, being fully advised of
his or her rights thereunder, each party still desires to execute
this Agreement, 'acknowledging that the terms and conditions set
forth herein are fair, just and equitable to each of the parties,
and waives his or her respective right to have the Court of
Common Pleas of Cumberland County, or any other Court of
competent jurisdiction, make any determination or order affecting
the respective parties' rights to a divorce, alimony, alimony
pendente lite, equitable distribution of all marital property,
counsel fees and costs of litigation, or any other rights arising
from the parties' marriage.
9. REAL ESTATE
The marital residence situate at 429 Blacklatch Lane, Camp
Hill, Cumberland County, Pennsylvania, (herein referred to as
"Residence"), presently owned by Husband and Wife shall hereafter
become and remain the sole and exclusive property of Husband
-6-
alone, and he shall enjoy sole and exclusive possession thereof.
For this purpose Wife shall, contemporaneously with the execution
of this Agreement, execute a Deed in favor of Husband conveying
to him all of her rights, title to, and interest in this
residence, said Deed to be held in escrow, by Wife's attorney,
pending refinance, which shall occur on or before December 6,
2005, at which time the deed shall be delivered to Husband at
settlement. Upon expiration of Husband's right of rescission on
the refinancing, he shall pay to Wife or direct his lender to pay
to Wife the sum of $27,500.00. Upon execution of the Agreement,
Husband shall pay to Wife the sum of $25,000.00.
Husband, until refinance, retains said property under and
subject to all of the expenses associated with the residence, and
specifically with regard to an existing mortgage owed to Sun
Trust Mortgage Company, financial lender, encumbering the
premises, all of which he hereby assumes and agrees to pay. As
part hereof, Husband agrees to save and hold harmless wife from
any and all liability or claims or damages or expenses (including
attorney's fees and legal expense) that he may sustain or become
liable or answerable for, in any way whatsoever, or shall pay
upon, or in conSequence of, Husband's default or any default with
regard to any expenses or mortgage payments which will or would
result in any action with reference to said premises. Any escrow
refunds are hereby assigned to Husband.
Husband shall retain all tax deductions associated with this
residence and/or mortgage payments.
Wife waives any right, title, and interest she may have in
and to Husband's 1/15th interest in the Midgarden farm in
Minnesota.
-7-
10. PERSONAL PROPERTY
Husband and Wife do hereby acknowledge that they have
divided their tangible personal property including, but without
limitation, jewelry, clothes, furniture, furnishings, rugs,
carpets, household equipment and appliances, pictures, books,
works of art and other personal property and hereafter Wife
agrees that all of property labeled Husband's (Jim'S) as set
forth in the attached list marked Schedule "A", shall be the
sole and separate property of Husband, and Husband agrees that
all of the property labeled Wife's (Kim'S) shall be the sole and
separate property of Wife, except to the extent specifically set
forth otherwise.in this Agreement. The parties do hereby
specifically waive, release, renounce and forever abandon
whatever claims, if any, he or she may have with respect to the
labeled items which shall become the sole and separate property
of each other, except to the extent specifically set forth
otherwise in this Agreement. The parties will specifically divide
other certain personal property as follows:
a. Husband shall retain the following financial accounts
that are in his name alone or in joint names:
1. All Members 1st Credit Union accounts- Checking
Accounts, savings accounts, and money market
accounts.
2. Husband's Citizens checking and savings accounts
opened after date of separation.
b. Wife Shall retain the financial accounts at Commerce
Bank and PSECU bearing only her name.
-8-
c. Wife shall prepare a QDRO, at her expense, to transfer
to her the sum of $105,832.00 before taxes and
penalties, if any, from Husband's TSP account. To the
extent there is any tax consequence, the taxes and/or
penalties shall reduce the $105,832.00 payable to Wife,
and the taxes and penalties shall be paid promptly by
Wife when due. The net amount due to Wife shall be
rolled to an account for Wife's benefit without any tax
consequences to Husband or his account.
d. Wife shall retain her two (2) IRA'S.
e. Husband shall retain his IRA.
f. The parties acknowledge that Husband is a participant
in the Federal Employees Retirement System (FERS) The
parties further acknowledge that Husband's FERS
retirement benefit contains both a marital and a non-
marital component. Husband and Wife agree that 50% of
the marital portion of Husband's FERS retirement
benefit shall be transferred or allocated to Wife.
Since the receipt of this asset contains both marital
and non-marital components, the use of a coverture
fraction is necessary. The denominator of the
coverture fracture shall be the number of months
Husband worked to earn the total benefit and the
numerator shall be the number of months during which
the parties were married and not finally separated
(separation was April 23, 2005). The benefit to which
the coverture fraction is applied shall include all
post separation enhancements except for enhancements
arising from post separation contributions. Wife
acknowledges it is her responsibility to prepare and
pay all costs and fees associated with the drafting of
-9-
the necessary documents and Order to transfer or
allocate her interest in Husband's FERS retirement
benefit.
g. The parties acknowledge that Wife was a participant in
the Federal Employees Retirement System (FERS).
Husband and Wife agree that 50% of Wife's FERS
retirement benefit shall be transferred or allocated to
Husband. The entire benefit was earned during the
marriage. The benefit shall include all post
separation enhancements. Husband acknowledges it is
his responsibility to prepare and pay all costs and
fees associated with the drafting of the necessary
documents and Order to transfer or allocate his
interest in wife's FERS retirement benefit.
11. MOTOR VEHICLES
With respect to the motor vehicles owned by one or both of
the parties, they agree as follows:
a. The 1998 Dodge Dakota Pick-up Truck shall become the
sole and exclusive property of Husband, subject to its
liens 'and encumbrances, and he shall hold Wife harmless
from any and all liens and encumbrances.
b. The 1996 Dodge Grand Caravan shall become the sole and
exclusive property of Wife, subject to its liens and
encumbrances, and she shall hold Husband harmless from
any and all liens and encumbrances.
The titles to the said motor vehicles shall be executed by
the parties, if appropriate for effecting transfer as herein
rovided, on the date of execution of this Agreement and said
-10-
executed titles shall be delivered to the proper parties on the
distribution date.
12. MISCELLANEOUS PROPERTY
All marital property not listed on any Schedule attached to
this Agreement shall be hereafter owned by the party to whom the
property is titled, and if untitled, by the party in possession.
This Agreement shall constitute a sufficient bill of sale to
evidence the transfer of any and all rights in such property from
each to the other.
13. LIABILITIES ASSUMED BY WIFE
Wife shall assume individual responsibility for the
respective debts listed on Schedule "B" of this Agreement. Wife
will hereafter qssume and retire the full amount of each
respective debt represented on Schedule "B" due and owing as of
the date of execution hereof, and shall indemnify and hold
Husband and his property harmless from any and all liability with
respect to the debts hereby assumed by Wife.
14. LIABILITIES ASSUMED BY HUSBAND
Husband shall assume individual responsibility for the
respective debts listed on Schedule "C" of this Agreement.
Husband will hereafter assume and retire the full amount of each
respective debt represented on Schedule "C" due and owing as of
the date of execution hereof, and shall indemnify and hold Wife
and her property harmless from any and all liability with respect
to the debts hereby assumed by Husband.
15. ASSUMPTION OF ENCUMBRANCES
Unless otherwise provided herein, each party hereby assumes
the debts, encumbrances, taxes and liens on all the property each
will hold subsequent to the date of this Agreement, and each
party agrees to indemnify and hold harmless the other party and
-11-
his or her property from any claim or liability that the other
party will suffer or may be required to pay because of such
debts, encumbrances or liens. Each party in possession of
property to be awarded to the other warrants that all dues, fees,
assessments, mortgages, taxes, insurance payments and the like
attendant to such property are current, or if not current, notice
of any arrearages or deficiency has been given to the receiving
party prior to the execution of this Agreement.
16. LIABILITY NOT LISTED
Each party represents and warrants to the other that he or
she has not incurred any debt, obligation, or other liability,
other than those described in this Agreement, for which the party
is or may be liable. A liability not disclosed in this Agreement
will be the sole responsibility of the party who has incurred or
may hereafter incur it, and each party agrees to pay it as the
same shall become due, and to indemnify and hold the other party
and his or her property harmless from any and all such debts,
obligations and ,liabilities.
17. INDEMNIFICATION OF WIFE
If any claim, action or proceeding is hereafter initiated
seeking to hold Wife liable for the debts or obligations assumed
by Husband under this Agreement, Husband will, at his sole
expense, defend;Wife against any such claim, action or
proceeding, whether or not well-founded, and indemnify her and
her property against any damages or loss resulting therefrom,
including, but not limited to, costs of court and attorney's fees
incurred by Wife in connection therewith.
18. INDEMNIFICATION OF HUSBAND
If any claim, action or proceeding is hereafter initiated
seeking to hold Husband liable for the debts or obligations
assumed by Wife under this Agreement, Wife will, at her sole
-12-
expense, defend Husband against any such claim, action or
proceeding, whether or not well-founded, and indemnify him and
his property against any damages or loss resulting therefrom,
including, but not limited to, costs of court and attorney's fees
incurred by Husband in connection therewith.
19. WAIVER OF ALIMONY
The parties acknowledge that inflation may increase or
decrease, their respective incomes may change, that either may be
employed or unemployed at various times in the future, that their
respective assets may substantially increase or decrease in
value, and that notwithstanding these or other economic
circumstances, the parties acknowledge that they each have
sufficient property and resources to provide for her or his
reasonable needs and that each is able to support himself or
herself without contribution from the other. Therefore, the
parties hereby expressly waive, discharge and release any and all
rights and claims which they may have now or hereafter have, by
reason of the parties' marriage, to alimony, alimony pendente
lite, support or maintenance and they acknowledge that this
Agreement constitutes a final determination for all time of
either party's obligation to contribute to the support and
maintenance of the other. It shall be, from the execution date of
this Agreement, .the sole responsibility of each of the respective
parties to sustain himself or herself without seeking any
additional spousal support from the other party.
20. TAX RETURNS AND AUDITS
Husband and Wife represent that all federal, state and local
tax returns required to be filed by Husband and Wife have been
filed, and all federal, state and local taxes required to be paid
with respect to the periods covered by such returns are paid.
Husband and Wife further represent there are no tax deficiencies
proposed or assessed against Husband and/or wife for such
-13-
periods, and neither Husband nor Wife executed any waiver of the
Statute of Limitations on the assessment or collection of any tax
for such periodS.
21. PRESERVATION OF RECORDS
Each party will keep and preserve for a period of four (4)
years from the date of divorce all financial records relating to
the marital estate, and each party will give the other party
immediate access to these records in the event of tax audits.
22. AFTER-ACQUIRED PERSONAL PROPERTY
Each of the parties shall hereafter own and enjoy,
independently of any claim or right of the other, all items of
personal property, tangible or intangible, hereafter acquired by
him or her, with full power in him or her to dispose of the same
as fully and effectively, in all respects and for all purposes,
as though he or she were unmarried.
23. LEGAL FEES
Each party will be responsible for their respective counsel
fees and costs involved in the divorce.
24. CHILD SUPPORT
The parties attended and participated in a support
conference before Support conference Officer Sally S. Kreitzer on
Tuesday, November 8, 2005. At conference, the parties entered
into a support agreement, whereby, Husband agreed to pay to Wife
the total sum of $1,550.00 per month, through the Cumberland
County Domestic Relations Office, of which, $950.00 per month
would be allocated child support and $600.00 per month would be
allocated spousal support. The above recited support agreement
was reduced to writing in the form of an Order of Court, dated
November 8, 2005, at docket no. 00756 S 2005, PASCES Case No.
314107646. The spousal support component will continue in full
-14-
force and effect, from November 1, 2005 through and including
June 1, 2007. Upon that date, it will terminate, and Husband
will agree to pay to Wife the total sum of $1,550.00 per month,
to be completely allocated as child support. It is further
understood and agreed between the parties that if Wife files for
a modification of child support on or before June 1, 2007, the
$600.00 per month payment allocated as spousal support and
expected to be converted to alimony, shall terminate
automatically upon the date Wife files a petition seeking to
modify child support. The parties acknowledge that only the
amount of child support and not the spousal support or alimony,
shall be modifiable at any time, based on a change in
circumstances relating to custody and/or the income and income
potential of either party.
25. SPOUSAL SUPPORT, ALIMONY PENDENTE LITE, ALIMONY
Husband and Wife agree and hereby do release and renounce
any claim or right they may have against the other party for
spousal support, alimony pendente lite, alimony and maintenance.
26. HIGHER EDUCATION EXPENSES OF THE CHILDREN
The parties agrees, that the college fund set aside in a 529
Plan with Putnam Investments, with Husband as custodian for the
Midgarden children, shall be utilized for the reasonable cost of
undergraduate college education for the Midgarden children,
including, but not limited to the following: tuition, room,
board, books, supplies, fees, transportation, and clothing.
Distribution shall be based upon scholarships and financial aid
available to the children. If any money is left when the last
child has graduated from college or attains twenty-two (22) years
of age, whichever occurs last, the remaining funds, if any, shall
be divided equally among Faith, Hannah, and Emma, or the survivor
of them. Husband shall utilize his absolute discretion in
managing said funds and he need not maintain the funds at Putnam
-15-
for the duration of the existence of the 529 Plan. From
execution of this agreement, Husband shall provide wife with
statements of Putnam account within ten (10) days of receipt
unless they are able to be sent directly from the managing
company to wife directly.
27. HEALTH INSURANCE
Husband shall continue to provide health insurance coverage
for the benefit of the children for so long as it is available
through his employer at a reasonable cost.
28. DEPENDENCY EXEMPTIONS FOR INCOME TAX
For tax years 2005 and 2006, as long as Husband makes all
payments for the support of the children and does all other
things required of him under this Agreement, Husband shall be
entitled to claim all three children as dependents on his
Federal, State and Local Income Tax returns. Starting in tax
year 2007, the parties will equally share the children as
dependents, with Wife claiming two (2) children, starting in tax
year 2007, and continuing in all odd numbered tax years
thereafter, and one (I) child, starting in tax year 200S, and
continuing in all even numbered tax years, thereafter. Both
parties shall execute and deliver and all forms or documents
necessary for the other party to claim the children as his/her
dependants under Federal, State or Local Law.
29. CUSTODY, PARTIAL CUSTODY AND VISITATION
Subject to further order of any Court of competent
jurisdiction, the parties agree that physical custody of the said
children, Faith Eileen (DOB 3/03/93), Hannah Marsell (DOB
3/22/94), and Emma Loretta (DOB 1/27/98), shall be shared as set
forth in Schedule "D", attached hereto and made a part hereof.
30. WARRANTY AS TO EXISTING OBLIGATION
-16-
Each party represents that he or she has not heretofore
incurred or contracted any debt or liability or obligation for
which the estate of the other party may be responsible or liable
except as may be provided in this Agreement. Each party agrees to
indemnify or hold the other party harmless from and against any
and all such debts, liabilities or obligations of every kind
which may have heretofore been incurred by them including those
for necessities except for the obligations arising out of this
Agreement.
31. WARRANTY AS TO FUTURE OBLIGATIONS
Except as set forth in this Agreement, Husband and Wife each
represents and warrants to the other that he or she has not in
the past or will not at any time in the future incur or contract
any debt, charge or liability for which the other's legal
representatives, property or estate may be responsible. Each
hereby agrees to indemnify, save and hold the other and his or
her property harmless from any liability, loss, cost or expense
whatsoever incurred in the event of breach hereof.
32. PROPERTY RELEASE
It is the intention of Husband and Wife to give to each
other by the execution of this Agreement a full, complete and
general release with respect to any and all property of any kind
or nature, real, personal or mixed which the other now owns or
may hereafter acquire, except and only except all rights and
agreements and obligations of whatsoever nature arising or which
may arise under ,this Agreement or for the breach of any provision
of this Agreement. All property hereunder is transferred subject
to all existing encumbrances and liens thereon. The transferee of
such property agrees to indemnify and save harmless the other
party from any claim or liability that such other party may
suffer or may be required to pay on account of such encumbrances
or liens. Such party will, at his or her sole expense, defend the
-17-
other against any such claim, whether or not well founded, and he
or she will indemnify and hold harmless the other party in
respect to all damages resulting therefrom. The insurance on the
property being transferred hereunder is assigned to the party
receiving such property, and the premiums on such insurance shall
be paid by the party to whom the insurance is assigned. By this
Agreement the parties have intended to effect an equitable
distribution of their assets. The parties have determined that
the division of said property conforms to the criteria set forth
in 33501 et. seq. of the Pennsylvania Divorce Code taking into
consideration the length of marriage; the fact that it is the
first marriage for Husband and second marriage for Wife; the age,
health, station, amount and sources of income, vocational skills,
employability, estate, liabilities and needs of each of the
parties; the contribution of each party to the education,
training or increased earning power of the party; the opportunity
of each party for future acquisitions of capital assets and
income; the sources of income of both parties, including but not
limited to medical, retirement, insurance or other benefits; the
contributions or dissipation of each party in the acquisition,
preservation, depreciation or appreciation of the marital
property, including the contribution of each spouse as homemaker;
the value of the property set apart to each party; the standard
of living of the parties established during the marriage; and the
economic circum~tances of each party at the time the division of
property is to become effective. The division of existing marital
property is not intended by the parties to constitute in any way
a sale or exchange of assets, and the division is being effected
without the introduction of outside funds or other property not
constituting a part of the matrimonial estate. The division of
property under this Agreement shall be in full satisfaction of
all marital rights of the parties.
33. MUTUAL RELEASES
-18-
Husband and Wife each do hereby mutually remise, release,
quitclaim and forever discharge the other and the estate of the
other, for all time to come, and for all purposes whatsoever, of
and from any and all rights, title and interest or claims in or
against the property (including income and gain from property
hereafter accruing) of the other or against the estate of such
other, of whatever nature and wheresoever situate, which he or
she now has or at any time hereafter may have against such other,
the estate of such other or any part thereof, whether arising out
of any former acts, contracts, engagements or liabilities of such
other or by law of dower or courtesy, or claims in the nature of
dower or courtesy or widow's or widower's rights, family
exemption or similar allowance, or under the intestate laws, or
the right to take against the spouse's will; or the right to
treat a lifetime conveyance by the other as testamentary, or all
other rights ofa surviving spouse to participate in a deceased
spouse's estate; whether arising under the laws of Pennsylvania,
any other state; Commonwealth or territory of the United States,
or any other country, or any rights which either party may have
or at any time hereafter have for past, present or future support
or maintenance, alimony, alimony pendente lite, counsel fees,
equitable distribution, costs or expenses, whether arising as a
result of the marital relation or otherwise, except, and only
except, all rights and agreements and obligations of whatsoever
ature arising or which may arise under this Agreement or for the
reach of any provision of this Agreement.
34. PERSONAL RIGHTS
Wife and Husband may and shall at all times hereafter live
separate and apart. Each may, for his or her separate use or
enefit, conduct, carryon and engage in any business,
ccupation, profession or employment which to him or her may seem
dvisable. Wife and Husband shall not molest, harass, or malign
ach other or the respective families of each other, nor compel
-19-
or attempt to compel the other to cohabit or dwell by any means
or in any manner whatsoever with him or her. Each party hereto
releases the other from all claims, liabilities, debts,
obligations, actions and causes of action of every kind that have
been or will be incurred relating to or arising from the marriage
between the parties, except that neither party is relieved or
discharged from any obligation under this Agreement. Neither
party will interfere with the use, ownership, enjoyment or
disposition of any property now owned by or hereafter acquired by
the other.
35. WAIVER OR MODIFICATION TO BE IN WRITING
No modification, rescission, amendment or waiver of any of
the terms hereof shall be valid unless in writing and signed by
both parties and no waiver of any breach hereof or default
hereunder shall be deemed a waiver of any subsequent default of
the same or similar nature. Any oral representations or
modifications concerning this instrument shall be of no force or
effect excepting a subsequent modification in writing, signed by
the party to be charged.
36. MUTUAL COOPERATION
Each party shall on demand execute and deliver to the other
party any deeds, bills of sale, assignments, consents to change
of beneficiaries of insurance policies, tax returns, and other
documents, and shall do or cause to be done every other act or
thing that may be necessary or desirable to effectuate the
rovisions and purposes of this Agreement. If either party
unreasonably fails on demand to comply with these provisions,
that party shall pay to the other party all attorney's fees,
costs, and other expenses reasonably incurred as a result of such
failure.
37. LAW OF PENNSYLVANIA APPLICABLE
-20-
.
This Agreement and all acts contemplated
construed and enforced in accordance with the
Commonwealth of Pennsylvania.
38. AGREEMENT BINDING ON HEIRS
This Agreement shall be binding and shall inure to the
benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, assigns and
successors in any interest of the parties.
by it shall
laws of the
be
39. INTEGRATION
This Agreement constitutes the entire understanding of the
parties and supersedes any and all prior agreements and
negotiations between them. There are no representations other
than those expressly set forth herein.
40. ENTIRE AGREEMENT
Each party acknowledges that he or she has carefully read
this Agreement, including all Schedules and other documents to
which it refers; that he or she has discussed its provisions with
an attorney of his or her own choice, or has waived the
opportunity to do so, and has executed it voluntarily and in
reliance upon his or her own attorney; and that this instrument
expresses the entire agreement between the parties concerning the
subjects it purports to cover.
41. INCORPORATION OF SCHEDULES
All Schedules and other instruments referred to in this
Agreement are incorporated into this Agreement as completely as
if they were copied verbatim in the body of it.
42. OTHER DOCUMENTATION
-21-
Wife and Husband covenant and agree that they will
forthwith, and within ten (10) days after demand therefore,
execute any and all written instruments, assignments, releases,
satisfactions, deeds, notes or such other writings as may be
necessary or desirable for the proper effectuation of this
Agreement, unless a different time period is required by another
paragraph of this agreement.
43. NO WAIVER OF DEFAULT
This Agreement shall remain in full force and effect unless
and until terminated under and pursuant to the terms of this
Agreement. The failure of either party to insist upon strict
performance of any of the provisions of this Agreement shall in
no way affect the right of such party hereafter to enforce the
same, nor shall the waiver of any breach of any provision hereof
be construed as a waiver of any subsequent default of the same or
similar nature, nor shall it be constructed as a waiver of strict
performance of any obligations herein.
44. SEVERABILITY
The parties agree that each separate obligation contained in
this Agreement Shall be deemed to be a separate and independent
covenant and agreement. If any term, condition, clause or
provision of this Agreement shall be determined or declared to be
void, unenforceable or invalid in law or otherwise, then only
that term, condition,' clause or provision shall be stricken from
this Agreement and in all other respects this Agreement shall be
valid and continue in full force, effect and operation. Likewise,
the failure of any party to meet her or his obligations under any
one or more of the paragraphs herein, with the exception of the
satisfaction of the conditions precedent, shall in no way void or
alter the remaining obligations of the parties.
-22-
45. HEADINGS NOT PART OF AGREEMENT
Any headings preceding the text of the several paragraphs
and subparagraphs hereof are inserted solely for the convenience
of reference and shall not constitute a part of this Agreement
nor shall they affect its meaning, construction or effect.
EXECUTED in triplicate on the day and year first above
written.
Commonwealth of Pennsylvania
ss
County of Cumberland
. ") ,,'fL
On th1s, the~ day of
officer, personally appeared
satisfactorily proven) to be
instrument, and acknowledged
contained.
/JO/J'r"HI bJr , 2005, before me the undersigned
James E. Midgarden, Jr., known to me (or
the person whose name is subscribed to the within
that he executed the same for the purpose therein
IN WITNESSN:::: I have here unto set mY~:/~~ff;:1dd~
ANNElTE/'ERI(INS Notary ~~'.
No/"'" .. ...._
~~8ORouGH.'~~
Common 'il2PlOO9
ss
County of Cumberland
On this, thec921'~ay of f.,Joucmbcv , 2005, before me the undersigned
officer, personallY appeared Kimberly M. Midgarden, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument, and acknowledged that he executed the same for the purpose therein
contained.
IN WITNESS wHEREOF, I have here unto set my hand and notarial seal.
NOTARIAl. SEAl.
ANNEm PERIQNS
Nolaly P\Jbffc - 2 3 -
CNfPKU BOROUGH. CllI\lIlERWI)COUNIY
Mv CommllllQn Ellp/IeI JuI n. 2009
. /) ( , "
UlLiieiiL.-/lJll-hhlzAj
.
Notary Public
SCHEDULE IIAII
-24-
. .
/d(21j/U5
ffi1vIFf;ki~Jfi~;: ~:~2:Jr -~~~~ ~~~kS:~-:-;2:::~-~~; ~=~~,~Ti;~~: :.' =it, -~- ~~"' -; ~j-:~~--: - - :-: :>:;Jf{J~; ::.:- ~~:-~
Red Desk and chair . x
Pictures on desk x . x
2 end tables x
Carpenters chest x
Bakers shelves x
Recliner x
Red couch x
Chair x
Pictures on walls x x
Gold frame behind couch x
Candles x
Lamps . x
3 plants x x
Carpet x
Cans on top Dorries x
Basket on top x
3 Blankets in bottem of Bakers chest x
Blow up mattress in Bakers chest x
Juiser I I x
Picture frame on floor I x
Stuff on Bakers cabinent x , x
23 Albums and bookshelf x x
Lamp with pictures x
~
Dininq Room Table x
Liqht in corner x
Cabinet on wall, all stavs but flour sifter x
Flour sifter on wall cabinet x
Microwave cart I x
Too shelf I x
Middle Shelf x
Bottem shelf x x
Crossstitch picture I x
Plates on wall I x
Curtins Iininq room and dining room x
KitcliilU1?i
TV x
Toaster x
Sliverware and utensils x x
Cookie Jarl x
Words on wall x
Coffee signs x
clock I x
Chicken Plates on wall x
. .
Calenders x
Tuperrware in cabinet x x
Smoothie blender x .
Cookie Imuffin pans x . x
Stoneware x x
Pitchers x x
Crock pot x
Pamper chef pots and pans x
George foreman Griii 'above frid e x
Spices I , x x
Fiour and suaar canisters x
Fiestaware x
Knives I x
Cups and lasses x x
Crystal x
~
Entertainment center x
Couch and chair x
Rocker , x
Fireolace screen x
Tractor picture x
Lamo and end table x
Candle I x
Round picture on waii x
Uglv tree x
Ladder x
Curtins x
Round picture on stairway to kitchen x
Tractor Seat I x
Round wood picture above tractor seat x
Games , x x
VCR , x
Aibums in cabinet x
Van DVD convert stuff x x
Soltem riaht cabinet x
Top right cabinet x
Fireplace screen x
Scale , x
Hurricane lamps x
Metal decoration x
Upper riaht cabinet x
Upper left cabinet x
Softbaii pictures x
Pantry , x
,
Frontjl::rJwrnc~~
I
Citizenship picture x
Snow baby cabinet x
Church pew x
.
Wooden calender x
Kev holder x
Welcome sian x .
Live Well, LauQh Often x .
Basket in corner I x
~
Hats, iacket, swearshirts x x
Ski equipment x
-
All x
~ .
Cleanina Suoolies I x x
Scrapbookina Materials x
Washer and Drver x
9 Albums I x x
Green Spot Cleaner x
~
Bed and matchina dressers x
Kims Dresser x
TV x
Curtains x
Coffee Tat ewhite x
Candles behind dresser x
Sera a Bookino Materials x
Two Dolls I x
Computer and Printer x
Camera I x
Liahts and endtables x
Vase Greenerv x
Bedspreadl x
Pictures on wall x
Fan Table x
File Cabinets, go throuqh with Kim x
Computer Desk Chair and contents x
Brown Table x
Bathroom Towels x x
CI.osetibiIJ1!j'altiiil)~
Linqerie x
2 boxes clothes x
quilt hanqer x
Oval Glass x
.
Luqqaqe I x x
Ice Cream Maker x
Pictures/troDhvs .
. x
Dishes x
Dresser x .
Kitchen x
Ski Baqs x
Box Books x
File Folders x
I
~
. ..' -
Bunk Bed I x
Emmas Bed x
Lamos I x x
Cedar Chest x
Dresser x
TV x
Clothes x x
Bookshelf x
Emmas Table x
Plavstationl(ls there one in Cumberland) x
VCR movie holders x
Games x x
Blanket Kim made x
All else stays in kids room x
~
2 quilts x
Quilt holder x
Towels/Sheets x x
Laundry Basket x
Picures on walls x
I
F:ilth'$JB:O::O :. -
Bed x
TV w/dvd x
Mirror x
All else stavs, Faith can make decisions x
I
Faiths Utility Closet
Coats, hats gloves x x
Old computer stuff x
Quiltinq Mat x
XMAS stuff x x
Rest of stuff x x
I
BILl~'Ba:tlifoom1lt.~
.
Hammer x
Screwdrivers, phillips and straiqht x
Craftsman Skill Saw . x
Craftsman Sander x
Level Kit x
Craftsman Drill x
Exacto Knife x
Plvers x
Pocket Knife x
~
Christmas Decorations x
Halloween Decorations x
Sleeo Baas , x
Kids Clothes x x
Fabric I x
Model Cars x
Crvstal weddinq Qlasses x
Cross stitch pictures I x
Mason iars and cannina pot x
..
I
Steam cleaner x
-= -
,
Grill x
Endtable x
Stere x
XMAS treE x
Fireolace tools x
Candles x
PlantStand x
Moms fiesta ware x
Table . x
Shoo in Vac x
2 red chairs x
Cart and contents x
Picnic table x
Dinner tables x
Rug on table x
Gold Star I x
School desk x
Standinq Rug x
Wooden Table and contents x
~
Kims Skiis and Boots x
Kims red bike x
Car Carrier x
Kayak I x
Golf Clubs x
Garden Tools
Spade x
leaf rake .
lawn Mower x
Weed Trimmer x
Blower x
Red Cooler x
Wagon Wheel . x
Bike Carrier x
Weight Bench and weights x
Waqon J x
Bike trailer! x
Step ladder x
Pool and Supplies x
Tent Bia and Small x
Air Compressor x
Mitre Saw GONE x
Two softball chairs x
4 pop up lawn chairs x
Tools I
4
W's GE Money Bank Card
W's Old Navy Credit
W's Sears
.
SCHEDULE "B"
$342.83
April 7, 2005
April 15, 2005
(credit of
$24.00)
$143.68
May 20, 2005
-25-
.
. .
SCHEDULE "C"
Mortgage $123,100.S4 May 13, 2005
-principal only
H's Members First Loan $ 3,232.34 April 30, 2005
H/s MBNA $ 10.68 May IS, 2005
H's Wells Fargo Financial $ 2,828.00 April 23, 2005
-26-
SCHEDULE "D"
The parties shall share legal and physical custody of the
three (3) minor children on the following schedule:
I. Each party shall have seven (7) days consecutively. The
seven days shall commence Sunday evening at 6:00pm and
continue through the next Sunday evening at 6:00pm.
2. The parties shall divide the holidays as equally as possible
with holiday visitation to supercede the seven day on, seven
day off schedule. The holidays that the parties shall share
are as follows:
a. New Years's Day
b. Easter
c. Memorial Day
d. July 4th
e. Labor Day
f. Thanksgiving Day
g. Day after Thanksgiving
h. Christmas Eve
i. Christmas Day
3. If any emergencies arise or either parent's schedule
changes, they shall notify the other party promptly. Each
parent agrees to accommodate, as much as possible, any
emergencies or schedule changes of the other parent.
4. Each parent shall permit the other the right of first
refusal with regard to periods of custodial care. If either
parent is unable to care for the children during their
-27-
Q '6s.
AJ ........
1 ........
it JJ '::3 .,
() :~-:~ "n
c--~ .-<
() -": -''I': 11
;"~1 ;:-:;:
"- ~ () .. '-~~ 8
~",.~. ;',i
~ ~.,)
r-- FE! _I
W
0 '>0
w --.0 _c
0- ~ ~.
.'
---.
7'----
--<
..
...
~
--" ..
KIMBERLY M, MIDGARDEN
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
V,
06-1768 CIVIL ACTION LA W
JAMES E. MIDGARDEN, JR.
DEFENDANT
IN CUSTODY
ORDER OF COURT
AND NOW. _____"Iednesday, Mar""-~'>,lOO~___ _, upon consideration of the attached Complaint.
it is hcreby directed that parties and their respective counsel appear before Melissa P. Greevy, Esq. , the conciliator,
at
MDJ Manlove, 190!_~,>tteSt.,Camp Hill, PA 17011. on.,_,..!riday, May 05, 2006
at 12:30 PM
for a Pre-Hearing Custody Conference, At such conferenee, 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 hear;n!!.
FOR THE COURT.
By: _ Is!
Melissa P. ?reevv, ESiL_#__
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 omce, A II arrangements
must be made at least 72 hours prior to any hearing or business bel'i.)re the court, You must attend the scheduled
conference or heming.
YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT
HA VI' 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 Bedt{)rd Street
Carlisle, Pennsylvania 17013
Telephone (717) 249-3166
- .
4~~1/5 IfT:XM( ieI~ .7V-,-lE~-
""'-a flv % /r:"'" nyw, "Xl'V[ r
~. f1v 7 rrJ'! t",,? {"9 NoE .~.
,'. ,;'~r-\
'v
~<~ :2 ::d
n'~ \I\"J
Lv u}.i
j(\
RECEIVED JUN 282006 <(
~
KIMBERLY M. MIDGARDEN,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 06-1768 CIVIL TERM
v.
CIVIL ACTION - LAW
JAMES E. MIDGARDEN, JR.,
IN CUSTODY
Defendant
ORDER OF COURT
AND NOW, this ,;(9111 day of
of the attached Custody Conciliation Summa
follows:
, 2006, upon consideration
eport, it is hereby ordered and directed as
1. Father will make a chart to track Hannah's medication schedule and share it
with Mother so that both parents can implement this monitoring system.
2. Mother and Father agree that their daughters will not have male guests in the
home in the absence of adult supervision.
3. Neither parent will sign up the children for extra circular activities or sports,
including ones in which they currently participate, without consulting with each other.
4. In the event that either party would be out of town, the parents will notify each
other of their travel plans and exchange telephone number where they can be reached in
the event that there is an emergency or an urgent need to communicate with regard to the
children.
5. A hearing jj;Fheduled in C urtroom Number '-i of the Cumberland County
*rthouse, on the day of , 2006, at q : ,? e) o'clock
. .M., at which time testimony will be take For the purposes of the hearing, the Mother,
Kimberly M. Midgarden, shall be deemed to be the moving party and shall proceed initially
with testimony. Counsel for the parties or the parties pro sa shall file with the Court and
opposing counsel/party a memorandum setting forth each party's position on custody, a list
of witnesses who are expected to testify at the hearing, and a summary of the anticipated
testimony of each witness. These memoranda shall be filed at least ten days prior to the
hearing date.
BY THE COURT: /
.4#-
J.
Dist: ~. Etter Dissinger, Esquire, 28 N. 32" Street, Ca Hill, PA 17011
ara A. Boyanowski, Esquire, 2080 Linglestown Roa . Ste 201, H:riS~
,J,
,f
\)\.9
\-;
2 (; ; I lid 62 IIr' sooz
AtJ./i,C~;,
JHL
Plaintiff
RECEIVED JUN 282006<21
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 06-1768 CIVIL TERM
KIMBERLY M. MIDGARDEN,
v.
CIVIL ACTION - LAW
JAMES E. MIDGARDEN, JR.,
IN CUSTODY
Defendant
CUSTODY CONCiliATION SUMMARY REPORT
IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE
1915.3-8, the undersigned Custody Conciliator submits the following report:
1. The pertinent information concerning the child who is the subject of this
litigation is as follows:
NAME
DATE OF BIRTH
CURRENTLY IN THE CUSTODY OF
Faith E. Midgarden
Hannah M. Midgarden
Emma L. Midgarden
March 3, 1993
March 22, 1994
January 27,1998
Mother and Father
Mother and Father
Mother and Father
2. Mother filed a Complaint for custody on March 27, 2006. By agreement of
counsel, the conciliation previously scheduled for May 5, 2006 was rescheduled to June 16,
2006. Attending the conference were: the Mother, Kimberly M. Midgarden and her counsel,
Cara A. Boyanowski; the Father, James E. Midgarden, Jr., and his counsel, Mary A. Etter
Dissinger, Esquire.
3. The parties reached agreements with regard to a strategy to be sure that the
parties' middle daughter is taking her medication; an agreement that the children would not
be unsupervised in the home with boys in the absence of adult supervision; that they would
consult each other prior to signing the children up for extra-circular activities or sports which
might occur in the other parent's time, including those sports and activities in which the
children currently participate, and to exchange telephone numbers with each other and
provide notice to each other in the event that one would be out of town.
4. Issues upon which the parties did not aaree: Mother's request to have primary
physical custody rather than shared physical custody.
5. Mother's position on custodv is as follows: Mother reports that she and Father
have been following shared physical custody since January 1, 2005, although she was the
primary care giver during the marriage. She complained of Father having a pattern of
excluding her from information regarding the children's school events, of signing
NO. 06-1768 CIVIL TERM
the children up for activities without informing her or discussing this with her in advance,
Father not giving the middle child adequate help with her homework, Father not giving the
middle child her medication on a consistent basis and returning the children at the end of
their custodial periods without their homework being completed. Mother reports that, as a
result, one child had difficulties with her grades this academic year and, only because of her
IEP, was she allowed to receive extended time to complete the work that had not been
done.
Mother seeks primary custody because she feels that the children need one central
place to do their homework and because she believes she is best equipped to address
Hannah's special needs as a student with autism and attention deficit disorder. She reports
she was more involved with the treatment specialists with regard to Hannah's needs since
her diagnosis at age 2%. She also believes that as the girls are approaching puberty they
need more attention from their mother with regard to personal care and hygiene. Mother
acknowledges that Hannah's grades improved at the end of the marking period and that the
communication between the parents improved since the Complaint was served. Mother
believes that this was because the Complaint was filed. However, she acknowledges that
she and Father had a meeting with the school to improve their communication between the
parents and the school with regard to Hannah's school work. Mother acknowledges that
Father is a really good dad. She believes that she should be the primary custodial parent.
The parties live within just a few blocks of each other. Accordingly, the girls are able to take
the same bus home from school, to whichever parent they may be spending time with on
any given day.
6. Father's position on custodY is as follows: Father reports that Hannah made
honor roll this marking period and although she had some challenges with her school work,
Father disputes that he was not completing the work with Hannah. He also acknowledged a
single occasion upon which Hannah did not receive her medication. Father claims that he
e-mails Mother with schedules and information with regard to the children's activities.
Father's concern is that if he is not involved with the children on a regular basis with regard
to their homework, he won't know what concepts they need help with and which they have
mastered. Father believes that he is better equipped to help the children with sciences and
math than is Mother.
Father also expressed concern about Mother leaving the children at home and
allowing male friends to be present when she was not there to supervise the children. He
expressed concern that even if nothing happened inappropriately, that rumors can circulate
and harm a child's reputation, even if the rumors are untrue. Father opposes Mother's
request for primary physical custody.
.
NO. 06-1768 CIVIL TERM
7. Because the parties have not reached an agreement with regard to the main
issue in Mother's petition, it appears that a hearing will be essary. The parties have not
elected to participate in a custody evaluation.
~/~li/TlY .
Date
{L
Melissa Peel Greevy, Esqu e
Custody Conciliator
:277685
KIMBERL Y M. MID GARDEN,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LA W
NO. 06-1768 CIVIL
JAMES E. MID GARDEN, JR.,
Defendant
IN CUSTODY
ORDER
AND NOW, this "7 · day of July, 2006, at the request of counsel for the defendant
and with the concurrence of counsel for the plaintiff, hearing in the above captioned matter set
for August 11,2006, is continued to Wednesday, August 16,2006, at 9:30 a.m. in Courtroom
Number 4, Cumberland County Courthouse, Carlisle, P A.
BY THE COURT,
Cara Boyanowski, Esqure
For the Plaintiff
. /lL
Mary Etter Dissinger, Esquire
For the Defendant
~~
~.
? 10. ()("
:rlm
: ii
....
I:
~; ~.~:
KIMBERLY M. MIDGARDEN,
Plaintiff
vs.
JAMES E. MIDGARDEN, JR.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LA W
NO. 06-1768 CIVIL
IN CUSTODY
ORDER
AND NOW, this '-I' day of August, 2006, at the request of counsel for the plaintiff
and with the concurrence of counsel for the defendant, hearing in the above captioned matter set
for August 16,2006, is continued to Thursday, October 12,2006, at 9:30 a.m. in Courtroom
Number 4, Cumberland County Courthouse, Carlisle, PA.
~ Boyanowski, Esqure
For the Plaintiff
~ary Etter Dissinger, Esquire
For the Defendant
:rlm
~~
,0
O~
BY THE COURT,
./lJ
\...1.
JJ.Nrrm~~
S'l:1 Wd '1- 9f\HOOZ
~
JJ:lV~ IU. :1J
3D\:i..()-(IJ'Ia
, ;