HomeMy WebLinkAbout02-2679IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
STEPHEN BALABAN, )
Plaintiff )
)
v. ) NO. O ~- ,,~(o79
)
KIMBERLEY ANNE KATLIC, ) CIVIL ACTION - LAW
Defendant ) CUSTODY
PETITION TO MODIFY CUSTODY ORDER OF OCTOBER 29, 1997
AND NOW, comes Plaintiff Stephen Balaban, by and through his counsel, Howett,
Kissinger & Conley, P.C. and files this Petition to Modify Custody Order of October 29, 1997
and in support thereof states as follows:
1. The Plaintiff, Stephen Balaban (hereinafter referred to as "Father"), is an
adult individual who currently resides at 201 Deanhurst Avenue, Camp Hill, Pennsylvania,
17011.
2. The Defendant, Kimberly Ann Katlic (hereinafter referred to as "Mother'),
is an adult individual who currently resides at 3149 Cottage Grove Avenue, Naples, Florida,
34112.
3. The parties, formerly husband and wife, were married on November 26,
1990 and were divorced by Final Judgment for Dissolution of Marriage entered in the Circuit
Court of the 17th Judicial District in and for Broward County, Florida on October 29, 1997 at
Case No. FMCE 97-08418 (37) (93).
JUt.
STEPHEN BALABAN,
Plaintiff
V.
KIMBERLEY ANNE KATLIC,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-2679 CIVIL TERM
CIVIL ACTION - LAW
IN CUSTODY
TEMPORARY ORDER OF COURT
AND NOW, this /(.," day of ~/ ,2002, upon consideration
of the attached Custody Conciliation Summar~ Report, it is hereby ordered and directed as
follows:
;I. IL~ga[J~,tsJ9~. The parties, Stephen Balaban and Kimberley Anne Katlic,
shall have shared legal custody of the minor children, Justin David Katlic, born September
10, 1989, Benjamin Thomas Balaban, born November 15, 1990, and Savannah Kathryn
Balaban, born September 11, 1993. Each parent shall have an equal right, to be exercised
jointly with the other parent, to make all major non-emergency decisions affecting the
children's general well-being including, but not limited to, all decisions regarding their health,
education and religion. Pursuant to the terms of Pa. C. S. {}5309, each parent shall be
entitled to all records and information pertaining to the children including, but not limited to,
medical, dental, religious or school records, the residence address of the children and of the
other parent. To the extent one parent has possession of any such records or information,
that parent shall be required to share the same, or copies thereof, with the other parent
within such reasonable time as to make the records and information of reasonable use to
the other parent.
2. ~. Father shall have primary physical custody. Mother shall
have partial physical custody for the period of July 21, 2002 through August 29, 2002.
3. Z~3SJ~J:IA:~jgD. The parties shall meet at an agreed upon location in Santee,
South Carolina for the custodial exchange incident to Mother's periods of custody.
4. Holidays. The parties shall share holidays during the pendency of the custody
evaluation in a fashion that is consistent with their past practices and the Order of October
29, 1997.
5. Cumberland County Court of Common Pleas, Commonwealth of Pennsylvania
shall retain jurisdiction of this matter.
VlN¥i\-IXSNN:Jd
6t.; :il ~i¥ 91 '1[11' ~0
NO. 02-2679 CIVIL TERM
6. Custody Evaluation. The parties shall submit themselves and their minor
children to an independent custody evaluation to be performed by Dr. Arnold T. Shienvold,
Riegler Shienvold & Associates. The parties shall sign all necessary releases and
authorizations for the evaluator to obtain medical and psychological information pertaining
to the parties. Additionally, the parties shall extend their full cooperation in completing this
evaluation in a timely fashion and in the scheduling of appointments. The parties shall
equally share the cost of Dr. Shienvold's services. Within two weeks of receipt of the report
from Dr. Shienvold, counsel for either party may request an additional Custody Conciliation
Conference. This request may be made in the form of a letter request to the Conciliator.
Dist:
BY THE COURT:
Arnold T. Shienvold, Ph.D., Riegler Shienvold & Associates, 2151 Linglestown Road, Harrisburg, PA 17110
John C. Howett, Jr., Esquire, 130 Walnut Street, Harrisburg, PA 17101
Jeffrey B. Engle, Esquire, 129 Market Street, Millersburg, PA 17061
STEPHEN BALABAN,
Plaintiff
V.
KIMBERLEY ANNE KATLIC,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-2679 CIVIL TERM
CIVIL ACTION - LAW
IN CUSTODY
T y N I IATI M RYR P RT
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:
Justin David Katlic
Benjamin Thomas Balaban
Savannah Kathryn Balaban
~BIRTH
September 10, 1989
November 15, 1990
September 11, 1993
CURRENT~N THE CUSTODy
Father
Father
Father
2. A Custody Conciliation Conference was held on July 9, 2002 in response to
Father's Petition to Modify a Foreign Custody Order which was filed on June 3, 2002.
Present for the conference were the Father, Stephen Balaban, and his counsel, Cindy
Conley, Esquire; the Mother, Kimberley Anne Katlic, and her counsel, Jeffrey Engle,
Esquire.
3. Mother's position on custody is that the two (2) older children, Justin, age 12,
and Benjamin, age 11, desire to live with .
would like to know · her Mother presentl re ' · -
the true interest and des ,,o ,-~ ,,. ..... .Y sides in Florida. Mother
that part of the custody evaluation r..., ,,, ,,u cnllaren m this matter and is hopeful
a neutral third party, process would lead to that information being obtained by
4. Father's position is that all three (3) of the children should be remain in his
custody and be raised together.
5. The Parties reached an agreement as to a Temporary Order as attached,
pending the outcome of a custody evaluation.
Report, the Parties will have a two-week period Upon the receipt of the Custody Evaluation
of time during which counsel for either party
may request an additional Conciliation Conference.
NO. 02-2679 CIVIL TERM
6. The parties' temporary Order provide for some extended periods of custody for
Mother over the summer and sharing of holidays during the pendency of a custody
evaluation. The parties also agreed to Cumberland County Court of Common Pleas,
Commonwealth of Pennsylvania as being the appropriate jurisdiction for this custody matter.
Date ,._
Mel~ssa Peel Greevy, Esquire
Custody Conciliator
:160477
4. The parties' Final Judgment for Dissolution of Marriage incorporated the
terms of the parties' Marital Settlement Agreement of October 15, 1997 with custody provisions.
A copy of the Final Judgment for Dissolution of Marriage is attached hereto marked Exhibit "A"
and incorporated by reference herein as if set forth at length.
5. The parties are the parents of three minor children namely Justin David
Katlic, born September 10, 1989, Benjamin Thomas Balaban, born November 15, 1990, and
Savannah Kathryn Balaban, bom September 11, 1993.
6. Pursuant to the terms of the custody order, Father has had primary
physical custody from the date of the Marital Settlement Agreement through and including the
date hereof.
7. At the date the Final Judgment for Dissolution of Marriage was entered,
Father resided in Broward County, Florida, and Mother resided in Dade County, Florida.
8. In September of 1999, Mother moved to New Mexico and remained a
resident thereof until May of 2002 when she moved back to Florida.
9. Father and the children have resided in Camp Hill, Pennsylvania since
August of 2001. Article XV of the Marital Settlement Agreement of October 15, 1997, the terms
of which were incorporated into the Final Judgment for Dissolution of Mamage provides, inter
alia, as follows:
The parties specifically agree that future venue for the enforcement and/or
modification of the terms and conditions of this Agreement shall lie in the county
in which the children reside.
10. The custody provisions of the Final Judgment for Dissolution of Marhage
should be modified because the provisions assume that the parents both continue to reside in
Florida and do not address the current situation where the parties reside at a great geographical
distance fi:om each other.
11. Father's move to Pennsylvania was not improper and, in fact, was
accomplished only after Mother relocated to New Mexico and was done with the full knowledge
and acquiescence of Mother, and, in fact, such move to Pennsylvania shortened the travel time
between the parties by five and a half hours each way.
12. Other than the Final Judgment for Dissolution of Marriage incorporating
custody provisions of the parties' agreement and docketed at Case No. FMCE 97-08418 (37)
(93) in the Cimuit Court of the 17~ Judicial District in and for Broward County, Florida, Father
has no information of any other custody proceeding concerning the children pending in a court of
this Commonwealth or any other state.
13. Each parent whose parental rights to the children have not been terminated
and the person who has physical custody of the children have been named as parties to this
action. All other persons, named below, who are known to have or claim a right to custody or
visitation of the children will be given notice of the pendency of this action and the right to
intervene: Name
David L. Katlic
(Paternal Grandfather)
Margaret M. Balaban
(Maternal Grandmother)
Address
709 Northwest 39th Avenue
Deerfield Beach, FL 33442
1 Redbud Drive
Mechanicsburg, PA 17050
Date:
VERIFICATION
I, Stephen Balaban, hereby swear and affimx that the facts contained in the foregoing
Petition to Modify Custody Order of October 29, 1997 are tree and correct to the best of my
knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904
relating to unswom falsification to authorities.
~hen/§-a~aban ~
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
STEPHEN BALABAN,
Plaintiff
)
)
)
v. ) NO.
)
KIMBERLEY ANNE KATLIC, )
Defendant )
CIVIL ACTION - LAW
CUSTODY
CERTIFICATE OF SERVICE
I, John C. Howett, Jr., Esquire, counsel for Stephen Balaban, Plaintiff in the above-
captioned action, hereby certify that a true and correct copy of the foregoing Petition to Modify
Custody Order of October 29, 1997 was served upon Defendant Kimberley Anne Katlic, and was
also served upon David L. Katlic, Paternal Grandfather, and Margaret M. Balaban, Maternal
Grandmother, by depositing same in the United States mail, certified, restricted delivery, return
receipt requested, on June 3, 2002, addressed as follows:
Date:
Kimberley Anne Katlic, Defendant
3149 Cottage Grove Avenue
Naples, FL 34112
David L. Katlic
(Paternal Grandfather)
709 Northwest 39~ Avenue
Deerfield Beach, FL 33442
Margaret M. Balaban
(Maternal Grandmother)
1 Redbud Drive
Mechanicsburg, PA 17050
(/_J_o_hn~12~. ~IoWett,' Jr., Esq'tI/re
'~-IOWETT, KISSINGER & CONLEY, P.C.
130 Walnut Street / P.O. Box 810
Harrisburg, PA 17108
Telephone: (717) 234-2616
Counsel for Plaintiff Stephen Balaban
T#006
10:44AM
tN CmCUIT cOuR OF
JUDICIAL CIRCUIT IN AND FOR BROWAI~ I(~-
COUNTY, FLORIDA ~/ ',~.
IN RE: The Marriage of: CASE NO.: FMCE 97-08418(37)(93)
KIMBERLEY ANNE BALABAN,
Petitioner/Wife,
and '= .'-
STEPHEN BALABAN ......
Respondent/Husband. -":-:
/ ..-'~
FINAL JUDGMENT FOR DISSOLUTION OF MARRIAGE
THIS CAUSE coming before this Court for Final Hearing on the Wife's Petition for
Dissolution of Marriage, the Court having taken testimony, receiving the Settlement
Agreement in eVidence, and being otherwise advised, it is
ORDERED AND ADJUDGED:
I. That the marriage of the parties is dissolved, in that the same is irretrievably
broken, and each of the parties is restored to the status of being single and unmarried. The
wife's maiden name is restored, and she shall henceforth be known as KIMBERLEY ANNE
KATLIC.
2. That the Settlement Agreement intrOduced in evidence as Exhibit "A," is
hereby incorporated into the Final Judgment, approved, affirmed and ratified by the Court
and the parties are ordered to comply with the terms and conditions contained therein.
PABALABANWJ.WPD
Jurisdiction of this action is retained and reserved to enforce the terms of this
Final Su ~dgment and to enter such further Orders as may be proper.
DONE AND ORDERED, in Chambers, Broward County, Florida on
Copies furnished to:
Kim L. Picazio, Esq. (Petitioner)
Kyle Pence, Esq. (Respondent)
In Re= The Marriage of~
Kimberley Anne Balaban v.
Stephen Balaban
This
~~_i~; 1997 by and between STEPHEN BALABAN,
referred to as "Husband" and KIMBERLEY ANNE BALABAN,
referred to as "Wife".
MARZTAL SETTLEN~__~T AG~_~T
Agreement, made and entered into this /~of
hereinafter
hereinafter
WITNESSETH
A. WHEREAS, the parties to this Agreement are Husband and
Wife and were married to each other on November 26, 1990 in Broward
County, Florida; and
B. WHEREAS, the parties have been and are residing separate
and apart; and
C. WHEREAS, there have been three (3) minor children born of
this marriage, to wit: JUSTIN DAVID KATLIC, born September 10,
1989, BENJAMIN THOMAS BALABAN, born November 15, 1990, and SAVANNAH
K~THERYN BALABAN, born SeptemBer 11,%. 1993, and no other children
are expected or contemplated; and
D. WHEREAS, it is the specific desire and intention of these
parties that their relations w~th respect to all of their property,
their financial matters and all other matters that would relate
thereto, be finally fixed by this Agreement in order to settle and
determine in all respects and for all purposes their respective
present and future property and financial rights, claims, and
demands in such a manner that any action with respect to the rights
and obligations, past, present, and future of either of these
parties with respect to the other, be fully, finally and
conclusively settled and determined by this Agreement~ and
E. WHEREAS, it is the purpose of this Agreement to provide
for. the future determination regarding parental responsibility,
residential care and support for the minor children, and
F. WHEREAS, the parties have provided each other with a full
and complete financial disclosure as to all of'their respective
assets and liabilities, both joint and individual, as well as each
of their respective incomes and occupations.
NOW, THEREFORE, in consideration of the mutual promises,
covenants( undertakings, guarantees, indemnifications and all other
items relating to the equitable distribution of the parties'
property which will be more fully set forth hereinafter and for
other good and valuable consideration, receipt of which is
acknowledged by the parties hereto, the parties agree as follows=
ARTICLE I
SEPARATION
all times hereafter
free
The parties may at live separate and
apart. Each shall be from interference, authority and
control, direct or indirect, bi the other as fully as if he or she
were sole and unmarried. Each may reside at such place or places
as he or she may elect. Each may for his or her separate use and
benefit conduct, carry on or engage in any business, profession or
employment which to him or her may seem advisable.~
4,,
ARTICLE
PARTIES BOUND
This Agreement shall be binding upon the heirs, legatees,
devisees, afi~inistrators and executors of the parties hereto, and
in the event of the death of either of the parties to this
Agreement while said Agreement is in force and effect the estate of
said deceased party shall be responsible for the performance of the
obligations and conditions of this Agreement. Furthez.,ore,
notwithstanding the incorporation of this Agreement in any Judgment
in the suit for Dissolution of Marriage now pending between the
parties, or in any future suit for Dissolution of Marriage brought
by either,party hereto, this Agreement shall not be merged in such
Judgment but shall survive the same and be binding on the parties
for all times.
ARTICLE III
CONTRACTING DEBTS
A. Each of the parties hereto represent, that he or she has
not.contracted and will not hereafte~ contract any debt, charge or
liability in the name or upon the credit of the other, or for which
the other or the estate of the other might or could become liable
and agrees, in any event, to i~demnify and hold the other and the
estate of the other harmless therefrom in all respects unless
otherwise specifically provided for within the confines of this
Agreement. Each party shall pay all debts incurred by him or her
before and after the date of the Agreement and shall indemnify the
other Party against liability therefore, as otherwise set forth~
3
herein. If a prior debt, including income tax liability, is
subsequently discovered, the party who incurred it agrees to hold
the other party harmless from any liability and assume all
responsibility for the payment of such debt. Neither party shall
interfere with the other party's obtaining a credit card in his/her
individual name. Each party shall sign such documents and take
such further actions as are necessary to eliminate any existing
credit card accounts which may have. cosignatory rights.
A~TICLE IV
MUTUAL ~ELEASE
Except as otherwise expressly provided in this Agreement, the
parties a~ree to release and do hereby release any and all claims
they may have to or upon the property of the other and their
estates, whether real or personal and whether now or hereafter
acquired, to the end that each shall have the free and unrestricted
right to dispose of his or her individual property from any claim
or demand by the other party and so that his or her estate shall be
a~ belong to the person or persons ~ho become entitled by will or
devise, bequest, intestacy, administration, or otherwise, if one of
the parties dies during the lifetime of the other party and without
limiting the foregoing, each pa~ty expressly waives, surrenders and
relinquishes any and all dower, curtesy, elective share, or other
present or future rights and interest in any real or personal
property of which either party may die seized or possessed, and
each party further surrenders and renounces any right of
administration to the estate of the other party, provided, however,~
4
Wife is not releasing any of her rights or those of the minor
children of the parties which may be provided by law regarding
Social Security benefits.
ARTICLE V
PARENTAL RESPONSIBILITY
Even though the parties choose to end their marriage, they are
both fit parents and wish to share parental responsibility for
their children and to continue to be actively involved in their
children's life as they did when their marriage was intact. They
can make decisions together in the best interest of the children
and Isolate their prior marital conflicts from their roles as
parents. Each party will continue to have a full and active role
in providing a sound moral, social, economic and educational
environment for the children. They will consult each other on
substantial questions relating to living arrangements, educational
programs, financial, moral, social, recreational and legal matters,
discipline and medical and dental care. In accepting the broad
gr~nt of privileges defined by this%Agreement, they specifically
recognize that these powers will not be exercised for the purposes
of frustrating, denying or controlling in any Manner the social
development of the other parent. They will use their best efforts
to work cooperatively on future plans consistent with the best
interest of the children and in amicably resolving disputes when
they arise.
A. In the event of a disagreement on matters of policy
affecting the health, education, or welfare of the children, the~
parties agree to confer with a harmonious attitude best calculated
to promote the children's welfare. If, in spite of this
conference, they remain in conflict regarding decisions affecting
the children, time permitting, they will submit the conflicts to a
mediator, counselor or professional person skilled in the area of
resolution of family problems. This procedure will be followed to
its conclusion prior to either seeking relief from the Court.
However, nothing herein shall restrict the ability of either party
to obtain court assistance with respect to any disputes.
B. The primary physical residence of the minor children
shall be with the Husband.
sC. The Wife shall have frequent and continuing contact
with the minor children, at such t~es and places as shall be
mutually agreed upon by the parties, including but not limited to
the provisions set forth in Article VI of this Agreement.
D. The parent in whose care the children are shall have
the responsibility of making day-to-day decisions regarding the
children's care, maintenance, and ~elfare. The parties shall
consult with one another on questions of discipline; financial,
moral, social, religion, recreational, and legal matters~ school
and educational programs~ chan~es in social environment~ and non-
emergency health care, both medical and dental. Each party shall
have an active role in providing a sound moral, social, economic,
and educational environment for the children. The parties shall
attempt to work cooperatively in making future plans consistent
with the best interest of the children and in amicably resolving
any disputes that arise.
E. The parties shall at all times conduct themselves
and their activities in a proper manner that will promote the
welfare and best interests of the children.
F. Each party shall promptly notify the other of any
serious illness or accident affecting the children.
G. Each party shall have access to records and
information pertaining to the minor children, including but not
limited to, medical, dental, and school records. Each party shall
provide the other with all school records for the children and each
shall execute such documents as are necessary to instruct the
children's school to send duplicate copies of all documents
pertaining to the children to both parties. In the event either
party receives any documents which the school has not furnished to
the other, the receiving party shall provide copies of said
documents to the other party immediately. Each party shall
additionally provide complete and detailed information including
b~lls, statements, reports from % any pediatrician, general
physician, dentist, orthodontist, consultant or other specialist
attending to the children, for any reason, and each shall be
furnished with copies of any r~ports given to the other party.
H. Both parties shall be entitled to authorize
emergency medical treatment for the children.
I. Each party shall attempt to ensure that the children
maintain unhampered contact and free access with both parties.
Each shall encourage a feeling of affection between the childrer
and both parties. Neither party shall do anything to hamper the
natural development of the children,s love and respect for the
other party. While the minor children are residing with one
parent, that parent shall make'all reasonable efforts to facilitate
co~w,unication between the other parent and the children, both by
telephone and through the mail. Such telephonic communication
shall be reasonable in nature. Neither party shall do anything
that would estrange the children from the other party, or that
would impair the natural development of the children's love and
respect for either party.
J. The children shall continue to be known by their
current surnames. For no reason shall the children use or assume
the name of any subsequent spouse. The parties agree that the
designation "Mother" and "Father" should be used by the children to
refer only to the parties and to no other person.
A~T~CLE VI
VISITATION AND COMMUNICATION
~ .'The parties agree that it is ~n the best interests of the
children, that they have frequent and continuing contact with both
parents. The parties therefore agree that the Mother shall have
liberal lsltatlon with the chIldren, according to the following
minimum ' ' '
v~sltatlon schedule:
A. The Wife shall pick up the children every Thursday
after school and shall have them until Sunday morning. The Husband
shall pick up the children every Sunday morning at the Wife's
residence and shall return them to school on Thursday morning.~
8
Summer visitation shall consist of two (2) weeks with the
Mother, two (2) weeks with the Father, two (2) weeks with the
paternal grandmother, and two (2) weeks with the maternal
grandparents as set forth below.
B. The ~usband shall have the right to have the
children with him for one (1) entire uninterrupted weekend six
times per calendar year. The weekend shall be defined as Friday
after school until the commencement of school Monday morning. The
Husband shall choose his weekend no later than the 25th day of each
preceding month. That is for the month of September 1997, the
Husband shell advise the Wife of his chosen weekend no later than
August 25~ 1997. In the event the parties have disputes over the
Husband's chosen weekend, the Husband shall have first choice of
his chosen weekend in even numbered months and the Wife shall have
her first choice (that is the Wife shall'be able to veto his first
choice) in all odd numbered months.
C. The parents shall share the primary holidays,
c~nsisting of the Christmas/New Year$,s school break, the four day
Thanksgiving weekend, and the Easter/Spring school break as
follows:
i. The Christmas/New Year school break, for the
purposes of time-sharing between the parents, shall commence from
the last day of school prior to the break and shall terminate at
the recommencement of school after New Year's Day. In Broward
County, Florida, the Christmas/New Year school break generally
consists of a two week break from the school schedule. The parties
shall equally share every Christmas/New Year school break. The
Wife shall have the children for the first half of the
Christmas/New Year school break in 1998 and all even numbered years
thereafter and the Husband shall have the second half in all even
numbered years. Conversely, the Husband shall have the first half
of the Christmas/New Year school break in 1997 and all odd numbered
years thereafter and the Wife shall have the second half in all odd
numbered years.
ii. Easter/Spring break generally consists of
approximately one week. The Easter/Spring break is defined from
the end of' the school day at the commencement of the break and
shall terminate at the beginning of school on the first day of
school after the school break. The Husband shall have the children
for the Easter/Spring break in 1998 and all even n-mbered years
thereafter. The Wife shall have the children for the entire
Easter/Spring break in all odd numbered years.
iii. The Thanksgiving Day weekend shall commence at
the end of school on the day before Thanksgiving and shall
terminate on the following Monday morning at the co,~encement of
school. The Wife shall have the children for the entire
Thanksgiving Day weekend in '1997 and all odd numbered years
thereafter. The Husband shall have the children for the entire
Thanksgiving Day weekend in 1998 and all even numbered years
thereafter.
D. Secondary holidays shall be defined as each child's
birthday, Memorial Day weekend, Fourth of July, Labor Day weekend
and Halloween. Ail secondary holldays shall be spent with the
children as the parents shall agree. In the event of any
disagreement, the Husband shall be entitled to Labor Day weekend
and 4th of July in 1997 and in all odd numbered years, and the Wife
shall be entitled to the Memorial Day weekend and Halloween in 1997
and in all odd numbered years thereafter.
E. The children shall spend the Husband's birthday and
Father's Day with him ever year, commencing no later than 9=00 a.m.
(or after school if the Father's birthday falls on a school day)
and ending the following morning at 10=00 a.m. or at the beginning
of the school day. The children shall spend the Mother's birthday
and Mother's Day with her every year, commencing no later than 9=00
a.m. (or after school if the Mother's birthday falls on a school
day) and ending the following morning at 10=00 a.m. or at the
beginning of the school day.
F. Each party shall have the option of having an
uninterrupted two (2) week period with the children every summer.
The.parties may elect to have the ti~e in either an uninterrupted
two (2) week period or in two (2) one (1} week periods. The two
(2) week period shall be decided by May 15th of each year. If the
parties' two (2) week periods o%erlap, the Father shall be entitled
to his requested two week period in all even numbered years, and
the Mother shall be entitled to her requested two (2) week period
in all odd numbered years.
G. In the event either parent requires the services of
a babysitter for a period of three hours or longer, the othe~
11
parent shall have right of first refusal to babysit the ohildren
during this time.
H. Ail of the visitation set forth herein shall remain
valid as long as both parents reside in Dade or Broward counties.
The Husband shall not attempt to relocate with the minor children
outside the Dade or Broward County areas. In the event the Mother
relocates outside the two-county area, the parties agree to
rearrange the existing visitation schedule to accommodate any
additional distance between the parties. If the parties are unable
to reach an agreement on a revised visitation schedule, they shall
mediate the issue at least one time before a qualified family law
mediator prior to submitting the issue to the Court for resolution
I. In the event of any emergency which would prevent
the timesharing as set forth herein, the parent necessitating a
change to the existing schedule shall notify the other parent to
make alternative arrangements at least two weeks prior to the
scheduled timesharing.
J. The parties will refrain from using the children as
messengers or to deliver or receive child support.
K. In the event the children spend any nights at
someone else's home locally, the parent who has possession of the
children shall verbally notify the other parent with the name,
address and telephone number of where the children are staying so
that the other parent can contact the children, if necessary. If
the children are to spend the night at someone other than either
parent's home outside of Dade or Broward County they shall be~
12
permitted to do only upon written agreement of the parties. Neither
party shall travel with the children outside of the State of
Florida without written consent of the other parent except for the
paternal grandparent visitation each summer. Any plans to travel
out.of the State of Florida with the children shall be submitted to
the other parent at least two weeks prior to the intended travel
date with itinerary. The other parent shall not unreasonably
withhold consent to such out of state travel.
L. The children are currently being raised in the
Catholic faith and are attending St. Anthony's Catholic Church
religious ~ducation-program. In the event a child or either parent
desires a change of religious training, the parties, and child, if
appropriate, shall attend mediation. Furthe~,,ore, this paragraph
shall not prevent either party from exposing any child to other
religious practices.
M. The children shall continue to attend school in
Broward County, Florida. JUSTIN and BENJAMIN shall continue to be
enrolled at Virginia Shuman Young E~ementary SchoOl and SAVANNAH
shall continue to be enrolled in Summit Private School. SAVANNAH
shall be transferred to Virginia Shuman Young Elementary School
when she is ready to start 'the second grade provided she is
accepted by VSY Elementary (a magnet program).
N. The children's maternal grandparents shall be
allowed reasonable visitation with the children. The maternal
grandparents shall specifically be entitled to fourteen (14)
consecutive days or two separate seven (7)
13 periods each summer,~
income sufficient to pay for her own housing,
provided they give the Husband 60 days notice of their intent to
exercise this visitation. The two (2) week visitation period with
the maternal grandparents shall not be scheduled during the two (2)
weeks the children spend with the Husband's mother as set forth
below. This period of maternal visitation with the children need
not take place when the children are with the Wife. However, any
additional visitation with the maternal grandparents is anticipated
to take place primarily when the children are with the Wife. In
the event the maternal grandparents wish to spend time with the
children while they are with the Husband, they shall request such
visitation ~t least two weeks prior to such time as they would like
to exercise visitation. The children shall spend two (2) weeks
every summer with the Husband's mother. The Husband shall give the
Wife at least 60 days notice of the dates the children are to
travel to visit their paternal grandmother. In the event the Wife
disagrees with such date, she shall advise the Husband within one
week after receiving Husband's notice of the dates. If the parties
cannot agree, they will immediatel~ attend mediation to try to
resolve this issue prior to submitting the issue to the Court.
O. In the event, either parent dies while any child
remains a minor, such child 'or children shall be immediately
transferred to the custody of the surviving parent.
ARTICLE VII
CHILD SUPPORT
The Wife is presently self-employed and is not earning
let alone child~
14
support. Accordingly, and in consideration of the parties'
timesharing arrangement, the Husband agrees that the Wife will not
be required to pay child support until such time as her income
exceeds $1,000 per month net (net income as dete~lined by Florida
Statute Section 61.30). However, the parties recognize that if
this Agreement is submitted to any Court of competent jurisdiction,
whether in connection with a dissolution of marriage proceeding or
otherwise, this provision may not be permitted by such Court. In
that event, the parties agree that income will be imputed to the
Wife at minimum wage x 40 hours per week and that child support
will be computed based on that net income. In such event, said
child support will be paid directly to the Husband, since the
parties agree that this would be in the children's best interest.
The parties further agree that no income deduction order will be
issued at this time. In the event the Wife is ordered to pay child
support for the children, such child support will cease upon the
occurrence of any of the following=
~ 1. The death of a child?
2. The valid marriage of a child~
3. A lawful entry of a child into the military service
of the United S{ates for a continuous period of one
(1} year or more~
4. Each child's eighteenth (18th) birthday.
B. Separate and apart from the above provision for
basic child support, the parties shall each be responsible for
fifty percent of the cost of health insurance for the minor~
15
children. The Husband shall'be responsible for obtaining such
health insurance. Each parent shall be responsible for fifty
percent of the cost of any health insurance, deductibles and any
non-covered medical expenses for the children. Such medical
expenses shall include, but not be limited to emergency medical
care, routine medical care, dental care, orthodontic care, vision
care and any other reasonable and necessary medical expenses.
C. The Husband shall be responsible for tuition, books
and other expenses associated with SAVANNAH'S attendance at Summit
Private School.
ARTZCLE VZZZ
WAIVER OF ALIMONY
Both parties specifically waive any and all rights and claims
they may have for alimony, including lump sum, rehabilitative,
peL~anent and periodic.
Both parties acknowledge that this waiver is final and
irrevocable and that there is no circumstance and no possible
change in circumstances which would p%rmit either of them to obtain
alimony or any other form of support or maintenance from the other
at any time in the future, no matter
circumstances of either party ~hanges.
Each party shall be responsible for
insurance and medical expenses.
ARTICLE IX
EQUZTABLE DISTRIBUTION
Ae
how the financial
their own medical
REAL PROPERTY. The parties own no real property
16
B. PERSONAL PROPERTY. The parties have already
distributed all personal property including any and all ~inancial
accoRnts, bank accounts, or any other financial accounts
whatsoever. Each party shall retain the vehicle currently in
his/her possession. ~'T~Hu~band~shal~havethe199OGMC Suburb
~nd~the~.,.,~ Wife shall have the 1984 RXT. The Husband shall assume all
financial responsibility, including outstanding debt, insurance and
any other obligations for his vehicle, and shall hold ha~nless and
indemnify the Wife from any expenses or liabilities associated wi~h
his vehicle. The Wife shall assume all financial responsibility,
including~utstanding debt, insurance and any other obligations for
her vehicle, and shall hold harmless and indemnify the Husband from
any expenses or liabilities associated with her vehicle.
C. NARITAL ~ PEP~ON&?. DEBT. The parties shall be
responsible for any and all debt as set forth in this paragraph.
Other than as otherwise set forth in this paragraph, the parties
represent that they know of no Other ~rital debts, nor have they
in~Brred any since the separation of%the parties. In the event of
any after discovered debt, the party incurring such debt will
assume responsibility for the debt contracted by him/her and will
indemnify and hold harmless th'e other for such debt.
The parties shall be responsible for debt as follows:
i. Husband shall be responsible for the existing
Internal Revenue Debt in the approximate amount of $32,460.65, the
loans from his family, including Karen, Bill and Beth in the
aggregate amount of $19,820.00, the existing Sears debt in the~
17
amount of $1,772.50, Stephen's J.C. Penney account #211-680-545-42
in the amount of $167.56, the balance of the American Express
credit card debt in the approximate amount of $520.17, the existing
hospital bills totaling approximately $1,444.09 owed to North Beach
Hospital, Emergency Physicians, Medical Associates, Albert Frances,
M.D., Anne Arundel Medical Center, and Virginia Emergency
Physicians, the Bell South Mobility debt in the amount of $186.91,
the hospital bill in relation to JUSTIN'S injury which occurred on
May 11, 1997 in the approximate amount of $25.00, and the Holy
Cross Hospital bills, account no. 9610298?3 and account no.
961023429.
ii. The parties shall be equally responsible for the
Wife's outstanding J.C. Penney credit card debt in the amount of
$163.21, and the Woodward & Lothrup debt in the amount of $232.37.
iii. The Husband shall be responsible for 75% and the
Wife shall be responsible for 25% of the existing Texaco debt in
the amount of $1,642.77.
iv. The Wife shall be Responsible for her current
Broward General Hospital bill in relation to her automobile
accident of February 1997 in the amount of $282.61, and the
Burdines credit card debt in the approximate amount of $204.42.
The Wife shall be responsible for any and all remaining hospital
bills for services rendered in 1996 or 1997 to either the Wife or
the minor children. All current active credit card bills shall be
the responsibility of the card holder unless otherwise noted
herein.
18
ARTICLE X
INCOME TAXES and PENALTIES
The parties shall file a joint 1996 tax return and each
shall be responsible for taxes owed and entitled to any refund in
proportion to his/her actual tax liability and actual taxes
withheld. The parties shall file, commencing with the taxable year
1997, and each year thereafter, separate United States Federal
Income Tax Returns. Each party shall be responsible for all taxes,
penalties, interest, or any other charges assessed by any taxing
authority against him or her individually, commencing for the
taxable year 1996 and for each year thereafter. Each party agrees
to indemnify and hold ha~less the other for any such taxes,
interest, penalties or any other charges.
In exchange for his waiver of child support, or in the
alternative, his agreement to accept child support based on Wife's
earning of minimum wage, the Husband shall be entitled to all three
(3) dependant exemptions for the minor children commencing in 1997
~nd each year thereafter. ~
ARTICLE XI
ADDITIONAL INSTRUMENTS
The parties shall hereafter, upon the request of the other,
execute and deliver such bills of sale, deeds, releases, waivers,
or other instruments, papers, or documents as either party may
reasonably require for the purpose of giving full effect and
compliance with all of the provisions of this Agreement, and
inspecting any personal property set forth herein. In the event~/~
19
that either party shall fail or refuse to execute any such
instrument, paper, or document, then it is the understanding of the
parties that an order of any court of competent jurisdiction shall,
and will operate as, and instead of said instrument, appear or
instrument for the conveyance of the personal property set forth
herein. The party requesting a document to be executed shall be
charged with the responsibility for preparation and delivery of
said document for execution.
ARTICLE XlI
MODIFICATION AND WAIVER
No mJdification or waiver of any of the te~ms of this
Agreement shall be valid unless in writing and unless said
subsequent instrument is executedwith the same formality as this
Agreement. The failure of either party to insist upon the strict
performance of any of the provisions of this Agreement shall not be
deemed a waiver of the right of the party thereafter to insist upon
the performance of that, or any other provision of this Agreement,
a~any time whatsoever. %
ARTICLE XlII
INDEMNIFICATION/PREVAILING PARTY
Each party agrees to take such as are actions necessary,
including the execution of documents, releases and/or waivers, to
expediently effect the provisions of this Agreement. Such
indemnification/hold harmless provision shall include reasonable
attorneys fees and costs, including such fees and costs incurred in
any appeal. Additionally, in the event it is necessary for either~
2O
party to take action to enforce the terms and conditions set forth
herein, the prevailing party in any such enforcement action shall
be entitled to reasonable attorneys fees and costs incurred by
him/her in such enforcement action. This prevailing party
provision for attorney fees and costs shall not apply to any
actions for modification of this Agreement.
ARTICLE XXV
ENTXREUNDER~TANDING
The parties have incorporated in this Agreement their entire
understanding of all matters relating to all issues contained
herein. Jo oral statement or prior written matter extrinsic to
this Agreement concerning the rights, duties, or obligations of
either party hereto, or to the other, shall have any force or
effect on any party. The parties have not relied upon, and
specifically herein repudiate, any past, present or future
representations other than those expressly set forth herein. Any
prior agreements, statements, promises or representations between
t~.parties, whether written or oralt are hereby revoked and held
void and unenforceable.
ARTICLE XV
PARTIAL INVALIDITY
If any provision of this Agreement is held to be invalid,
void, voidable or, for some other reason unenforceable, then in
that event, all of the other remaining provisions of this Agreement
shall nevertheless continue to be binding and in full force and
effect on the parties hereto. The parties specifically agree that
21
future venue for the enforcement and/or modification of the terms
and conditions of this Agreement shall lie in the county in which
the children reside.
ARTICLE XV!
T~GALADVICE
Each party has had the opportunity to have independent counsel
and legal advice of his or her own selection in the negotiation and
preparation of this Agreement. Each party fully understands all of
the facts and has been, and is, fully advised and informed as to
his and/or her legal rights and obligations under the terms hereof.
Each party ~xecutes this Agreement freely and voluntarily, and each
believes the provisions of this Agreement to be fair, reasonable,
and just, and fully intends to be bound by all of the tez~,s and
conditions contained herein. Each of theparties to this Agreement
has provided complete financial disclosure to the other, including
the amount and nature of his and/or her assets and liabilities,
past, present, and potential and has represented to the other the
a~rOximate amount of his and/or he'present income, which income
has been derived from any and all sources and has been disclosed
either in writing orally or by deposition or sworn statement, and
the financial affidavits of t~e parties which are attached hereto
as Exhibit "A" and "B".
ARTICLE XVII
NON- INTERFERENCE
Each party agrees that he or she shall not interfere with,
harass, annoy or molest the other, either at work, at home, or in
22
any other location where either party knows the other to be, in any
way by or through his or her own act, or by and through others
acting for and on behalf of either party. Neither party shall in
any way defame or disparage the other's character.
ARTICLE XVIII
COUNTERPART SIGNATURE
This Agreement may be signed in one or more counterparts, each
of which, when executed with the same formality and in the same
manner as the original, shall constitute an original.
ARTICLE XIX
ATTORNET'S FEES~ MEDZATION
Each party agrees to be responsible for his or her own
attorney's fee, suit monies, and court costs incurred in connection
with the present legal action to dissolve the marriage between the
parties and in any future actions applying to this Agreement.
Should the parties have any future disagreement as to any
issues involved in this Agreement, the parties shall first go to
mediation with a mediator for a minimum of one (1) session before
seeking any action in the Court, excepting emergencies. Any out of
state party may attend mediation by telephone.
ARtiCLE XX
DATE OF AGREEMENT
The date of this Agreement shall be regarded as the date when
the last one of the parties hereto has signed this Agreement.~/~
23
GENDER AND USAGE
Wherever used in this Agreement, unless the context of any
passage herein requires otherwise, the singular includes the plural
and plural includes the singular; the masculine includes the
feminine and the feminine includes the masculine.
ANTICLE XXI!
TITLES OF PARAGRAPHS
The titles of each paragraphs set forth herein are only for
the purpose of convenience for the reader, and are not to be
considered a part of this Agreement.
ANTICLE XXIII
INTERPRETATION AND CONSTRUCTION
Should any provision of this Agreement require judicial or
other interpretation or construction, it is agreed that the Court
or fact finder interpreting or construing this Agreement shall not
apply a presumption that the term shall be more strictly construed
against one party or the other by reason of the rule of
construction that a document is to be construed more strictly
against the party who through itself or through its agents prepared
the same. It is agreed that the agents and attorneys of all
parties have participated in the preparation and negotiation of
this Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands
and seals this /~day of ~~ , 1997.~
24
Si~ned, sealed_and delivered in th~~
WITNESS
STATE OF FLORIDA
COUNTY OF BROWARD
Before me, the undersigned authority, personally appeared
STEPHEN BALABAN.~ who, 'after being' first duly sworn, and who
produced____~ as identification or who is personally known
to me, depose~--and states that he executed the foregoing Agreement
for the purposes therein described, and the statements contained
therein ar~ true and correct.
STATE OF FLORIDA
COUNTY OF BROWARD
· ~ '..Before me, the undersigned
Sworn to and suhscribe~le in the County and State
aforesaid this ~-day of , 1997.
-- -
Hy Co~sslon
au%hority, personally appeared
KIMBERLEY ANNE BALABAN, who, after being first duly sworn, and who
produced as identification or ~ho is oer~onall¥ known
to me, deposes and states that she executed the~-orego~ng Agree~en~
~ purposes therein described, and the statements contained
therein are true and correct.
in the County and State
Sworn ko and subscribe~ before me
aforesaid this,~ day of ~ 1997.
(PRINT)
Commission Number:
My Commission Expires:
25
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FEB 0 3 2003
STEPHEN BALABAN,
Plaintiff
V.
KIMBERLEY ANNE KATLIC,
Defendant
HESS, J.---
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-2679 CIVIL TERM
CIVIL ACTION - LAW
IN CUSTODY
ORDER OF COURT
AND NOW, this "/" day of February, 2003, upon consideration of the attached
Custody Conciliation Summary Report, it is hereby ordered and directed as follows:
1. Based on agreement of counsel as represented to the Custody Conciliator,
discovery shall be available in accordance with the Pennsylvania Rules of Civil Procedure
4001 et seq.
2. A pre-trial status conference shall be held with counsel on March 21, 2003 at
9:00 o'clock A.M. At the time, if counsel have not already done so, counsel should be
prepared to set deadlines for the exchange of witness lists and exhibits.
3. A hearin~ is scheduled in Courtroom Number 4 of the Cumberland County
Courthouse, on the 11 "' day of June, 2003, at 8:30 o'clock A.M., the 12th day of June, 2003,
at 8:30 o'clock A.M., and the 13th day of June, 2003, at 8:30 o'clock A.M. at which time
testimony will be taken. For the purposes of the hearing, the Father, Stephen Balaban,
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 30 days prior to the hearing date.
Dist:
BY THE COURT:
nA. Hess,~.
John C. Howett, Jr., Esquire, 130 Walnut Street, Harrisburg, PA 17101
Jeffrey B. Engle, Esquire, 129 Market Street, Millersburg, PA 17061
STEPHEN BALABAN,
Plaintiff
V.
KIMBERLEY ANNE KATLIC,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-2679 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 THE CUSTODY OF
Justin David Katlic
Benjamin Thomas Balaban
Savannah Kathryn Balaban
September 10, 1989
November 15, 1990
September 11, 1993
Father
Father
Father
2. A Custody Conciliation Conference was held on January 28, 2003 in response
to a request from Father's counsel to reconvene the Conference following the receipt of Dr.
Shienvold's Custody Evaluation Report. Present for the, conference were the Father,
Stephen Balaban, and his counsel, John C. Howett, Jr., Esquire; the Mother, Kimberley
Anne Katlic, and her counsel, Jeffrey B. Engle, Esquire.
3. The Conciliator met with parties and counsel to explore whether there was
some possibility of an agreement which would resolve the custody matter in light of the
content of the Custody Evaluation Report. The Report contains a recommendation that all
of the children return to the primary custody of their Mother for the 2003-2004 school year.
4. Father's position on custody is as follows: Father continues to believe that the
children would be better off to remain in Pennsylvania. Father and the children have
resided in Pennsylvania since August 2001. Father suggests that the children would benefit
from both parties being more integrated into the children's lives were the geographic
circumstances between the parents much different than they presently exist.
5. Mother's position on custody is that it is in the best interest of the children to
be raised together and that they should be in her primary physical custody. Mother
presently resides in Florida, having recently purchased a new home. She has remarried.
She and her husband have employment through the Expo Design Center, which is a
NO. 02-2679 CIVIL TERM
business affiliated with Home Depot. Mother has resided in Florida on and off over many
years and relocated there from New Mexico in May of 2002.
6. Inasmuch as the parties did not reach an agreement to change the primary
physical custody of the children to the Mother, this matter will be set for trial. Counsel
agreed to stipulate to the allowance of discovery under Rule 4001 et seq., to have the
Conciliator ask for three (3) consecutive trial days to be scheduled in the end of May or first
week in June of 2003. Counsel also agreed to request a. pre-trial status conference with
Judge Hess in March 2003 at which time counsel were to be prepared to set deadlines for
the exchange of witness lists and exhibits.
Date
Melissa Peel Greevy, Esquire
Custody Conciliator
:200354
STEPHEN BALABAN,
Plaintiff
VS.
KIMBERLEY ANNE KATLIC,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
02-2679 CIVIL
CIVIL ACTION _ LAW
CUSTODY
ORDER
AND NOW, this /""* day of February, 2003, our order of February 4, 2003, is
amended to reflect that hearing in the above captioned matter set for June 11, 12 and 13, 2003,
shall commence at 9:00 a.m. in Courtroom Number 4 of the Cumberland County Courthouse,
Carlisle, PA.
BY THE COURT,
John C. Howett, Esquire
For the Plaintiff
Jeffrey B. Engle, Esquire
For the Defendant
:rim
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
STEPHEN BALABAN,
Plaintiff
Vo
KIMBERLEY ANNE KATLIC,
Defendant
NO. 02-2679 CIVIL TERM
CIVIL ACTION - LAW
CUSTODY/VISITATION
CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things upon a non-party
pursuant to Rule 4009.22, Plaintiff, Stephen Balaban, certifies that:
(1) a notice of intent to serve the subpoena with a copy of the subpoena
attached thereto was mailed or delivered to each party at least twenty days prior to the date on
which the subpoena is sought to be served;
(2)
to this certificate;
(3) no objection to the subpoena has been filed of record with the court as
required by Rule 4009.21 (c); and
(4) the subpoena which will be served is identical to the subpoena which is
attached to the notice of intent to serve the subpoena.
Date:
a copy of the notice of intent, including the proposed subpoena, is attached
Respectfully submitted,
~ C. Howett, Jr., E'~quire
HOWETT, KISSIN'GER & CONLEY, P.C.
130 Walnut Street / P.O. Box 810
Harrisburg, PA 17108
Telephone: (717) 234-2616
Counsel for Stephen Balaban
1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
STEPHEN BALABAN,
Plaintiff
KIMBERLEY ANNE KATLIC,
Defendant
)
)
)
)
)
)
)
NO. 02-2679 CIVIL TERM
CIVIL ACTION - LAW
CUSTODY/VISITATION
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND
THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21
TO: Kimberley Anne Katlic, Defendant
c/o Jeffrey B. Engle, Esquire
SHAFFER & ENGLE LAW OFFICES
129 Market Street
Millersburg, PA 17061
Plaintiff, Stephen Balaban, intends to serve a subpoena identical to the one that is
attached to this notice. You have twenty (20) days from the date listed below in which to file of
record and serve upon the undersigned an objection to the subpoena. If no objection is made the
subpoena may be served.
Date:
Respectfully submitted,
~:IOWETT, KISSINGER & CONLEY, P.C.
130 Walnut Street
P.O. Box 810
Harrisburg, PA 17108
Telephone: (717) 234-2616
Counsel for Plaintiff, Stephen Balaban
STEPH~BAIABAN,
Plaintiff
KIMBERLEY ANNE KATLIC,
Defendant
COMMONWEALTH OF PENNSYLVANIA
(XXJN'i~ OF O3MBERLA}~
File No. 02 - 2679 CIVIL TERM
fI3STODY / VISITATION
SUBPOENA TO PRODUCE DOCLrMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009~2~,
TO:
T-Mobile, Attention: Custodian of Records, 2920 SE 38th Street, Bellevue, WA 98005
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things:
S~e at~ ahm~_qt.
at t~e law office of Howett, Kissinqer & Conley, P.C., 130 Walnut Street, P.O. Box 810
Harrisburg, PA 17108 (Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together
with the certificate of compliance, to the party making this request at the address listed above. You have the right
to seek, in advance, the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service,
the party serving this subpoena may seek a court order compelling you to comply with it.
THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: John C. Howett, Jr., Esquire
HOW~:I'I', KISSINGER & CONLEY, P.C.
ADDRESS: 130 Walnut Street, P.O. Box $10
Harrisburg: PA 1 7108
ISLSPHON5': (717) 234-2616
SUPREME COURT ID # 20092
ATTORNEY FOR:
DATE '
Plaintiff Stephen Balaban
February 20, 2003
Seal of the Court
By the Court~
Prot~. - 73
ATTACHMENT TO SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR
DISCOVERY PURSUANT TO RULE 4009.22:
Any and all information listed below with regard to T-Mobile Account No. 137824663-C which
was opened on July 17, 2000. The phone number that it applies to is (505)-621-8546. The
exact name on the account is unknown but it is possible that it may be "Mrs. Stephen Balaban";
"Mrs. Kimberley Balaban"; "Mrs. Kimberley Katlic Balaban", etc. The social security number
used for the account was 209-36-3668 and it is believed the address was 2003 Hopi Road, Santa
Fe, New Mexico, 87505-2401 at the time the account was opened.
The application and all documents, records, etc., related to said application;
Copies of background checks, credit checks, etc., done on this account to verify financial
ability to pay phone bill;
Intemet information sent by and to Applicant/Account Holder on this account;
All notes and records on this account, including but not limited to phone calls with
Applicant/Account Holder, correspondence to Applicant/Account Holder, internal
documents, etc.;
Copies and details of all phone bills/statements;
Copies of all payment records;
Copies of all checks, money orders, Internet money transfers, credit card payments, etc.,
used to make payments on the account; and
8. Any and all other records in the possession of T-Mobile relating to this account.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
STEPHEN BALABAN,
Plaintiff
Vo
KIMBERLEY ANNE KATLIC,
Defendant
NO. 02-2679 CIVIL TERM
CIVIL ACTION - LAW
CUSTODY/VISITATION
CERTIHCATE OF SERVICE
I, John C. Howett, Jr., Esquire, counsel for Stephen Balaban, Plaintiff in the above-
captioned action, hereby certify that a true and eon'eot copy of the foregoing Notice of Intent to
Serve a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21
was served upon Kimberley Anne Katlic, Defendant, c/o Jeffrey B. Engle, Esquire, counsel for
Defendant, by depositing same in the United States mail, first class, on February 20, 2003,
addressed as follows:
Jeffrey B. Engle, Esquire
SHAFFER & ENGLE LAW OFFICES
129 Market Street
Millersburg, PA 17061
Date:
HOWETT, KISSINGER & CONLEY, P.C.
130 Walnut Street
P.O. Box 810
Harrisburg, PA 17108
Telephone: 717-234-2616
Counsel for Plaintiff, Stephen Balaban
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
STEPHEN BALABAN,
Plaintiff
Vo
KIMBERLEY ANNE KATLIC,
Defendant
NO. 02-2679 CIVIL TERM
CIVIL ACTION - LAW
CUSTODY,tVISITATION
CERTIFICATE OF SERVICE
I, John C. Howett, Jr., Esquire, counsel for Stephen Balaban, Plaintiff in the above-
captioned action, hereby certify that a tree and correct copy of the foregoing Certificate
Prerequisite to Service of a Subpoena Pursuant to Rule 4009.22 was served upon Kimberley
Anne Katlic, Defendant, c/o Jeffrey B. Engle, Esquire, counsel for Defendant, by depositing
same in the United States mail, first class, on March 13, 2003, addressed as follows:
Jeffrey B. Engle, Esquire
SHAFFER & ENGLE LAW OFFICES
129 Market Street
Millersburg, PA 17061
Date:
J63n'r'C. Howett, Jr., lggr-quire
HOWETT, KISSINGER & CONLEY, P.C.
130 Walnut Street
P.O. Box 810
Harrisburg, PA 17108
Telephone: 717-234-2616
Counsel for Plaintiff, Stephen Balaban
STEPHEN BALABAN,
Plaintiff
VS.
KIMBERLEY ANNE KATLIC,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
02-2679 CIVIL
CIVIL ACTION - LAW
CUSTODY
IN RE: pRETRIAL CONFERENCE
Present at a pretrial status conference held March 21, 2003, were John C. Howett, Jr.,
Esquire, attorney for the plaintiff, and Jeffrey B. Engle, Esquire, attorney for the defendant.
This is a case in which the father has had primary physical custody of three children for a
number of years. He attempted to register a Florida custody order in this county and was initially
met with opposition· The mother has since withdrawn her objection to this court's jurisdiction
but now seeks a change in primary physical custody. However, she has not filed any petition.
Counsel for the mother indicated that he would file a petition within twenty days.
Counsel agreed that pretrial statements in this matter would be exchanged on or before
May 12, 2003. There was further agreement that depositions of the parties would be conducted
during the early days of May. It was further understood that while the father will proceed
initially with the testimony, the mother will bear the burden of persuasion with regard to changes
in circumstances warranting modification of the existing order.
March 21, 2003
John C. Howett, Esquire
For the Plaintiff
Jeffrey B. Engle, Esquire
For the Defendant
K~o/A. Hess, J.
~ .3 ~ .2o. o_3
STEPHEN BALABAN,
Plaintiff
Vo
KIMBE~EY ANNE KATLIC,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 02-2679 ClVWlL TERM
: CWIL ACTION - LAW
: CUSTODY/VISITATION
.RESPONSE TO PETITION TO iMODIFY
FOREIGN CUSTODY ORDER OF OCTOBER 29,i 1997
AND NOW, comes Defendant Kimberley Anne Katlic, lay and through her counsel,
Jeffrey B. Engle, Shaffer & Engle, and files this Response to Plaintiff's Petition to Modify
Foreign Custody Order of October 29, 1997 and in response thereof states as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted in part. Denied in part. Mother had primary physical custody of Ben
Balaban during the 2000-2001 school year.
7. Admitted.
8. Admitted.
9. Admitted in part. Denied in part. Article XV of the Marital Settlement
Agreement of October 15, 1997 does state that venue...shall lie in the county in
10.
which the children reside. However, as read in context with the entire Marital
Settlement Agreement, venue was to be found in either Dade or Broward
Counties, Mother residing at that time in Dade County and Father in Broward
County, both counties within the State of Florida. See Articles VI Sections C I, H,
K, M of the Marital Settlement Agreement.
Admitted.
11.
12.
Denied. Father did not inform Mother of his intent to relocate, or seek approval
of Mother to relocate with the children to the State of Pennsylvania.
Admitted.
13. Admitted.
NEW MATTER, Defendant requests the following:
A. Jurisdiction remain in the State of Florida.
B. Mother and Father shall continue to have shared Legal Custody of the minor
children.
C. Mother shall have primary physical custody of the children based upon;
I. The Custody Evaluation recommendation of Dr. Shienvold pursuant to
Dauphin County Order of Court dated July 16, 2002.
II. The best interests of the children given their age, intellect and maturity,
and Mother's ability to provide a loving and nurturing environment.
III. In accordance with the desire of the children to reside primarily with their
Mother.
WHEREFORE, Defendant requests jurisdiction remain in the State of Florida, and that
Defendant and Plaintiff continue to share legal custody of the minor children, and Defendant
shall have primary physical custody of the children and that Plaintiff shall have rights of partial
physical custody of the children.
Date:7~/~
Respectfully submitted, . ~
Millersburg,'~A 17061 ~
Telephone: (717) 234-2616
Counsel for Defendant Kimberly Katlic
.VERIFICATION
I, Jeffrey B. Engle, Esquire, hereby swear and affirm that the facts contained in this
.Response to Petition to Modifi/Foreign Custody Orde, are true and correct to the best of my
knowledge, information, and belief based upon information provided by Kimberly Katlic Rogers
and from my own firsthand knowledge and that said facts are made subject to the penalties of 18
Pa. C.S. § 4904 relating to unsworn falsification to authorities. Defendant is outside the
jurisdiction of this Court such that her verification cannot be timely obtained.
Dated:
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
STEPHEN BALABAN, )
Plaintiff ) NO. 02-2679 CIVIL TERM
)
v. )
) CIVIL ACTION - LAW
KIMBERLEY ANNE KATLIC (ROGERS), ) CUSTODY/VISITATION
PETITION FOR DISCLOSURE OF DOCUMENTS
TO THE HONORABLE JUDGE KEVIN A. HESS:
AND NOW, comes Petitioners, Stephen Balaban and Kimberley Anne Katlic (Rogers),
by and through their respective counsel, John C. Howett, Jr. (by joinder attached hereto) and
Jeffrey B. Engle, who request the disclosure of certain Children & Youth documents and in
support thereof avers as follows:
1. On June 3, 2002, the Plaintiff, Stephen Balaban, filed a Petition to
Modify Foreign Custody Order.
2. On April 7, 2003, the Defendant, Kimberley Anne Katlic (Rogers), filed a
Response to the Petition to Modify the Foreign Custody Order.
3. A Custody Conciliation Conference was held at the Law Offices of
Melissa Greevy on January 28, 2003, after the receipt of the custody evaluation provided by Dr.
Arnold Shienvold. At the time of the conference, the parties agreed to engage in voluntary
discovery, pursuant to Pennsylvania Rules of Civil Procedure 4001, et. seq.
o
March 21, 2003.
5.
A pre-trial status conference was held with this Honorable Court on
Depositions of the parties were conducted on May 2 and 5, 2003.
6. On May 5, 2003, counsel agreed to file a joint motion for production of
Children and Youth file for incidents occurring on June 5, 2002 (Report No. CL 21-05653) and
February 19, 2003 (Report No. CL 21-05840).
7. Both the June 5, 2002 and the February 19, 2003 incidents concern the
minor children and the parties involved in the instant custody action.
8. This Honorable Court has the jurisdiction to order disclosure of Children
and Youth files in custody actions
§6340(a)(5.1).
9.
pursuant to the Child Protective Services Act, 23 Pa.C.S.A.
Plaintiff joins this motion as evidenced by the executed joinder attached
hereto as Exhibit "A."
WHEREFORE, both counsel respectfully request that this Honorable Court order the
Children and Youth Agency to disclose to the Court and both counsel a full and complete copy
of the contents of their file for the incidents above noted.
Respectfully submitted,
Date:
.... S~f~:?~l~le, Esquirw- j,~6..m~y for Defendant
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
STEPHEN BALABAN,
Plaintiff
KIMBERLEY ANNE KATLIC (ROGERS),
NO. 02-2679 CIVIL TERM
CIVIL ACTION - LAW
CUSTODY/VISITATION
PLAINTIFF'S JOINDER TO PETITION FOR DISCLOSURE OF DOCUMENTS
AND NOW, comes Plaintiff, Stephen Balaban, by and through his counsel, Howett,
Kissinger & Conley, P.C., who joins the foregoing Motion for Disclosure of Documents.
Date:
Jo_hn .~:~vett, Jr., Es~ai3e
~I40~ETT, KISSINGER & CONLEY, P.C.
130 Walnut Street
P.O. Box 810
Harrisburg, PA 17108
Telephone: (717) 234-2616
Counsel for Plaintiff, Stephen Balaban
IN THE COURT OF cOMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
STEPHEN BALABAN,
Plaintiff
Vo
KIMBERLEY ANNE KATLIC (ROGERS),
Defendant
)
)
)
)
)
)
)
NO. 02-2679 CIVIL TERM
CIVIL ACTION - LAW
CUSTODY/VISTITATION
CERTIFICATE OF SERVICE_
I, Jeft~ey B. Engle, Esquire, hereby certify that a true and correct copy of the above-
referenced Petition for Disclosure of Documents was forwarded by the manner indicated below:
Date:
U.S. FIRST CLASS MAIL.,
Cumberland County Children & Youth Services
Legal Department
16 West High Street
Suite 200
Carlisle, PA 17013
Jeffrey:~figl~, Esquire
~..~?!2~.k._et~Street
Mill:rsburg, PA17~/
(717) 692-2345
OFFICES
STEPHEN BALABAN,
Plaintiff
VS.
KIMBERLEY ANNE KATLIC,
Defendant
AND NOW, this q"
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
02-2679 CIVIL
CIVIL ACTION - LAW
CUSTODY
ORDER
day of June, 2003, based upon the considerations in the attached
petition, it is hereby ordered and decreed that Children and Youth of Cumberland County shall
provide to the court and both counsel a full and complete copy of their file, including, but not
limited to, any and all reports, notes and summaries regarding im,Sdent No. CL 21-05840 and CL
21-05653, the report of which was made to Children and Youth on February 19, 2003 and June
5, 2002, respectively.
BY THE COURT,
John C. Howett, Esquire
For the Plaintiff
Jeffrey B. Engle, Esquire
For the Defendant
Cumberland County Children and Youth
STEPHEN BALABAN, :
Plaintiff :
V. :
KIMBERLEY ~2~NE KATLIC, :
Defendant :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
02-2679 CIVIL TERM
CIVIL ACTION - LAW
CUSTODY/VISITATION
IN RE: TESTIMONY OF RAYMOND RODGERS
Proceedings held before the HONORABLE
KEVIN A. HESS, J., Cumberland County
Courthouse, Carlisle, Pennsylvania, on June
12, 2003, in Courtroom Number Four.
APPEARANCES:
John C. Howett, Jr., Esquire
For the Plaintiff
Jeffrey 6. £ngle, £squire
For the Defendant
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Whereupon,
R3IYMOND RODGERS
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. ENGLE:
Q
record?
Sir, can you please state your name for the
A
A I am 43 years old.
Raymond David Rodgers.
And your current age and occupation?
I'm a kitchen designer
for the Expo Trades office.
Q And what are your current work hours?
A My current work hours are 8 to 5 Monday
through Friday.
Q Do you work weekends?
A Never. Unless I request a weekend.
make my hours flexible.
Q
I can
2002.
Now, when did you and Kim first meet?
We met in 2001 in Sante Fe, New Mexico.
And when were you married?
We were married in -- on April the 18th of
Q Okay. And there was some questioning of
Kim as to whether or not that was planned or how you went
about planning it. Did you plan it?
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A Well, I mean we planned it as far as I asked
her to marry me. We didn't set up a date. We originally
planned on probably getting married sometime in the summer,
but when the transfer situation for her came about, we
decided that we wanted to start our new life in Florida as
a married couple as
married.
Q Okay.
Ben, and Savannah?
A
Q
What occasions?
opposed to coming down here and getting
Have you spent any time with Justin,
Yes, I have.
And how much time have you spent with them?
A Well, when they're up
in the summers, and
whenever -- in '91 -- I'm sorry, in 2001,
Ben down, and the holidays that we spend.
Q Okay.
A I do.
Q
whenever we flew
Do you interact well with the kids?
Do the kids feel comfortable with you?
A They do.
Q Okay.
A Yeah.
communicate real well.
Q I want
Do they ever confide in you?
Yeah, the kids talk to me. They
to point something out. In Dr.
Shienvold's report, one of the pages where he was reviewing
your information, it indicates that you have -- you had two
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previous marriages.
A
Q
A
Is that accurate?
Actually I've been married 3 previous times.
Okay. What was the first time?
The first time I was 19 years old. I
married a girl out of high school. We were probably
together like 6 months, and that was it. I think on paper
the marriage may have lasted a year and a half, but we were
actually only together 6 to 8 months, and that was it.
Okay. Did you have any children from that
Q
marriage?
A
Q
No. No.
And then you were married two other times;
is that correct?
A Correct.
Q Layla and Rhonda?
A Correct.
Q And you had two other children. You had
one other child born of Layla?
A Correct.
Q Have you ever lived in Florida besides now?
A My parents moved to Florida when I was very
young, 2 or 3 years old, and I was raised up by Bradenton
around the Tampa area until I was 12 or 13 years old.
Q And where were you born?
A I was born in Logansport, Indiana.
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A
down here for,
Q So how long did you live in Florida besides
back when you were younger, how long did you live there?
When Rhonda and I were married, we moved
oh, approximately a year and a half. And
you testified to.
then I visited my family here.
time here.
Q
12, When did you end
So on occasions I spent
But you started living there when you were
-- when did you
move from Florida?
A Oh, I'm sorry.
I started living here in
Florida when I was probably about 2 or 3 years old. I
moved from Florida when I was about 12.
Q Oh, okay. I understand. Do you have any
brothers or sisters?
A I've got six sisters and three brothers.
Q Okay. And where do those brothers and
sisters live, the one's that live in Florida?
A I've got -- the ones that live in Florida,
I've got two sisters in Arcadia.
Q What's your relationship with those sisters?
A It's very good.
Q About how far away is Arcadia from your
house?
about 45,
A From our house presently, it's probably
50 minutes.
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Q
wife, Kim?
A
Q
And what's your relationship with your new
It's excellent.
Okay. You guys in tune with each other?
You understand each other very well?
A We are.
MR. ENGLE: I have nothing further.
CROSS EXAMINATION
BY MR. HOWETT:
Q
East? South?
A
highway -- I
Now, do your sisters live north of Arcadia?
West?
I have one sister that lives actually on
think it's 17. It goes into Arcadia.
Probably 20 minutes -- 15 to 20 minutes our side of
Arcadia. And then I have one that lives probably another
10 minutes our side of Arcadia.
Q Okay. Now, you read Dr.
when it
A I did.
Q Have you read it since then?
A I've not read it recently.
would have probably been a month ago.
Shienvold's report
came out last December, didn't you?
I read it. It
Q
So you read it more than once, correct?
Correct.
And other than the one error that you've
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just admitted on your direct examination, that you have
been married three times before this wife instead of two
times, did you find any other errors in it?
A I think there may have been one where I
Sheinvold referred to my second child Blaine as
when it was actually Layla's. It was in part of
think Dr.
Rhonda's,
the notes.
Q
A
Q
Other than that, nothing incorrect?
Other than that nothing incorrect.
Well, what about the incorrect portion that
your wife has already acknowledged, that appears in his
conclusion paragraph, that you guys never left the kids
alone? You didn't think that was incorrect?
A No. At the time I did not think that was
incorrect.
Q
So when the -- when it says here when the
children were at their mother's home, they were left
neither by themselves nor with baby-sitters, you thought
that was an accurate statement when you read this?
A When I read that at the time, yes, I thought
it was an accurate statement.
Q And how about the statement that says Kim
and Ray worked out their schedules such that one or the
other of them could care for the children. You thought
that was an accurate statement too?
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A Yes, I did.
Q In fact, you told that information to Dr.
Shienvold, didn't you?
A Yeah. We have the availability to work out
our schedule.
Q So the statements that Dr. Shienvold made in
his report were based on information that you and Kim gave
him, right?
A Correct.
Q But that information is wrong, isn't it?
A I think at the time it was probably the
best, to our knowledge.
Q The best to your knowledge. You couldn't
remember leaving these kids alone on an average of 8 1/2
hours a day for more than half the days they were there
that summer? You couldn't remember that?
A I think probably in our discussions with Dr.
Shienvold it was probably our capabilities and not what had
happened.
Q So you told him what you could do, not what
you did do, right?
A I don't know in our interviews with Dr.
Shienvold that the schedule of the summer vacation came --
even came up. I think what we addressed in Dr.
Shienvold's interviews was what our capabilities -- what we
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could do.
the best
Q And you said that it was also probably to
of your recollection, right? Did you say that
just a moment ago?
A Possibly.
Q Okay. Now, it is correct, is it not, that
you were interviewed by Dr. Shienvold on August 28th?
A That sounds accurate.
Q That is immediately after -- immediately
after your 6 weeks with the kids ended, right?
A Correct.
Q So you think Dr. Shienvold misunderstood
what you were saying?
A No, I think Dr. Shienvold did understand
what we were saying.
Q So when he says while the children were at
their mother's home, meaning in the past, they were left
neither by themselves nor with their baby-sitters, do you
think he meant -- what he really meant was the future, that
they would be with baby-sitters?
I can't answer what Dr. Shienvold
A
interpreted.
Q
Now, when it says Kim and Ray worked out
their schedules, worked as in past tense, such that one or
of the other of them could care for the children, do you
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think he was referring to that's what you could do in the
future, but not what you did do in the past?
A I don't think that I can speculate about
that.
Now, your wife testified in her deposition,
for
Q
and today, about you quitting Home Depot and working
Firebird?
A Correct.
Q And she said that you took the job with
Firebird in January of '02 because it was a better
opportunity for you? Is that true?
a That's correct.
Q Did you read her deposition?
A I glanced through it.
Q Did you find anything in there that was
wrong?
A I didn't read enough of it to be able to
answer that accurately.
Q Well -- so the part about Firebird though,
that was accurate?
A Yes, I left Home Depot at the time due to
the hours and some political issues that were going on.
MR. HOWETT: Your Honor, I'll mark this
Exhibit 18, a one page document. It was not an exhibit I
was planning on offering, and so I don't have enough
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copies, but I have -- I do have 3. So if at a break or
when we are done today, if we can make one or two extra
copies. Would you mark this as number 187
(Whereupon, Plaintiff's Exhibit No. 18 was
marked for identification.)
BY MR. HOWETT:
Q Mr.
marked as
9th, 2003,
Payroll
Team.
I'm showing you what's been
Rodgers,
Plaintiff's Exhibit 18, being a letter of June
from a person who was identified as Gwen Miller,
Department Verification Specialist Subpoena/Records
Is that correct?
A Yes.
Q And it has her telephone number and so
forth, and it's signed by somebody who purports to be Gwen
Miller, correct?
A Correct.
Q It's addressed to Darren Holst
associate, correct?
A Correct.
Q And it's in reference to
versus Kimberly Anne Katlic, and it has
numbers for you and Kim, right?
(phonetic) my
Stephen Balaban
the Social Security
Correct.
And it says this is in response to the
right?
A
subpoena that we had sought,
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letter?
A
Correct.
Would you read the last paragraph of that
A Mr. Rodgers' dates of employment commenced
at store 3503 New Mexico on July 26th, 1999, to March 17th,
of 2002, and left his position for another job in a
different industry. He was rehired at store 6358 Florida
on April the 29th.
Q 2002?
A Correct.
Q So when Kim says that she started the
relocation process to move to Florida -- that she formally
initiated it in early March of 2002, even though her
application wasn't dated until April 14th, you quit after
she formally started her moving process, correct?
A Correct.
Q You gave up your seniority to work for a few
weeks for Firebird and then got rehired?
A Correct.
Q Now, if her deposition said that you quit in
January of '02, and I asked you if that was accurate and
you said it was, why didn't you correct her and say, no,
that wasn't until mid March that I quit?
A Well, I just -- I could not remember the
exact date. I knew it was in early spring.
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Q Mr. Rodgers,
custody evaluation with Dr.
A Correct.
you participated in this
Shienvold, right?
Q You know the purpose of that evaluation is
to determine fitness and appropriateness of parents who are
going to be caring for young children, right?
A Correct.
Q Did you tell Dr. Shienvold that there was a
history of alcoholism in your family?
A My father was an alcoholic.
Q You didn't tell him that though, did you?
You didn't tell Dr. Shienvold that, did you?
I thought I had.
Did you tell him your father was physically
A
abusive?
A
Q
suicide?
A
Q
I told him that he could be.
Did you tell him that your father committed
It seems like I had.
Now, the first thing that Mr. Engle asked
you when you got up on the stand was to admit that you were
actually married three times before instead of two, and you
said you were married three times before, right?
A Correct.
Q But you forgot to tell that to Dr.
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Shienvold,
A
conversation.
Q
married,
right?
I don't know that it ever came up in
Well, he asked you how many times you were
and you told him about Layla and Rhonda?
A I think that he probably -- we discussed
relationships.
Q
relationship?
A
Q
you?
right?
You didn't
count the first marriage as a
No. No. I try not to do that actually.
You didn't tell Kim about it either, did
A No.
Q Not until today, right?
A Correct.
Q You said you were married for 6 months,
A Was that a question?
Q I said, right?
A We were together approximately 6 months. I
think the marriage lasted, I don't know. On paper maybe a
year, year and a half, something like that.
Q
December 1st,
A
So if the judgment of divorce was entered
1981, would that sound accurate to you?
That would probably be about accurate.
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A
Q Okay. And if it says
married on September 2 -- I'm sorry,
would that be accurate?
That could be accurate.
You don't remember,
That's right.
that the parties were
September 22, 1979,
but it could be right?
So about a 27 month marriage?
Yeah. Maybe a little over 2 years. It
could have been that long.
Q And if you separated in June of 1981, in
other words almost 2 years together, would that be wrong?
A Well, that may be when the formal separation
was filed. We were not together very long at all.
Q But nevertheless you were still living
together in 1981, weren't you, as husband and wife?
A In 19817
Um-hum.
I don't recall if we were living together
but your marital property included a
Q
A
then or not.
Q Well,
1981 Chevy car, didn't it?
That's correct.
We had more than one
'81 Chevy, didn't you?
A
vehicle.
Q
A
But you also had an
Um-hum.
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Q As a marital car.
That's all I have on that issue.
recent wife before Klm, right?
A
Q
A
Q
Okay. That's all.
Layla was your most
Correct.
Layla Bristol, right?
Correct.
If Layla told my investigator that you watch
porno movies when the kids were in the house,
lying?
A
Q
would she be
She would be.
If Layla told my investigator that you were
physically abusive,
objection.
MR. ENGLE:
THE WITNESS:
THE COURT:
would she be lying?
I object.
She would be.
Wait a minute. We have an
This is on the grounds of hearsay?
MR. ENGLE: Yes, Your Honor. He's
attempting to have his -- one of his witnesses testify
through my client.
THE COURT: I'll sustain the objection.
BY MR. HOWETT:
Q Do you think you have a drinking problem?
A I do not.
Q Do you think you used to have a drinking
problem?
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A I do not.
Q You do drink beer,
A During the summer -- last
were barbecuing I would drink some beer,
Q
A
birthday.
anniversary.
Q
A
Q
average?
A
actually.
Q
A
don't you?
summer when we
yeah.
Do you drink anything else?
I think we had a bottle of wine for my
Before that Easter -- no, it was our
Do you drink beer every day?
I do not.
How many days a week do you drink beer,
on
I haven't drank beer for quite some time now
What do you mean by quite some time?
Well, other than the bottle of wine we had
for our anniversary, I think that we grilled some salmon
maybe a few weeks before that,
beer then.
Q
day a week?
A
Q
A
Q
and I had one six pack of
So you don't regularly drink beer even one
No.
On average?
On average.
Would you say you do drink beer one day a
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week on average or not
A
Q
On average I do not.
Well, how frequently -- how many days a
month do you think you drink beer?
A I don't have enough statistics on that
give you an accurate average.
Q Two days a month, approximately?
right?
A Maybe.
Q
A
Q
Not much more than that,
Probably not.
You say you did read Dr.
to
would you say?
Shienvold's report,
A I did.
Q And it says on page 12,
may have 1 to 2 six packs per week.
A At that point in time that was
Q Last August it was correct?
A Yeah. We were barbecuing a lot.
MR. HOWETT:
MR. ENGLE:
THE COURT:
That's all.
Briefly, Your Honor,
Sure.
REDIRECT EXA1MINATION
BY MR. ENGLE:
Q
Plaintiff's Exhibit Number 19,
according to Ray he
correct.
if I may.
Ray, now you've been handed an exhibit,
that shows that you left
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Home Depot in March 17th of 2002. Why did you leave Home
Depot at that point in time?
A I had talked with management for a while
about changing schedules, about the possibility of
transferring maybe to a different location. Home Depot's
politically structured where it's not like you can transfer
just out of seniority.
have to be requested.
apartment that was --
was working a lot of
You actually have to be approved,
I was currently running an
it was kind of understaffed, and I
late hours, and any of my requests to
be able to transfer were pretty much shrugged off.
that was one of the reasons when the
a job, I took it.
Q Okay.
So
local shop offered me
But did you ever plan on not
transferring back to Florida,
A No.
Florida.
Q
as Klm had testified?
I never planned on not returning to
Okay. But did you in effect by leaving
your job on March 17th of
some seniority?
A
2002, at Home Depot, did you lose
I did. At that point in time I had not had
an
not matter.
in Arcadia.
of 7 years.
intention of going back to a Home Depot store so it did
My brother-in-law is a foreman at a local shop
I've done extensive kitchen design background
I wouldn't have a problem finding employment.
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Should Kim have gotten transferred before me, it wouldn't
have been a problem.
Q Now, Mr. Howett had pointed out that you had
some history of alcoholism in your family. Do you feel as
though you're an alcoholic?
A I am not.
Q
of treatment
A
Q
some other type of drug related driving offense?
A
A
except for one
Q
A
Q
A
Q
(Whereupon,
Okay. Have you ever been through any type
or anything like that for alcoholism?
I have not been through any treatment.
Have you ever been arrested for a DUI or
I've never been arrested.
For anything?
For anything. I've never been ticketed,
failure to yield violation.
Okay. And how's your health?
My health is excellent.
Do you take any medications?
concluded.)
I do not.
Okay.
MR. ENGLE: Nothing further.
MR. HOWETT: No recross.
THE COURT: Thank you.
the testimony of Raymond Rodgers
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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.
DaCe ' Kev~ A. Hess, J.
/~nth Judicial District
21
STEPHEN BALABAN,
Plaintiff
VS.
KIMBERLEY ANNE KATLIC,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
02-2679 CIVIL
CIVIL ACTION. LAW
:
: CUSTODY
IN RE: TEMPORARY CUSTODY ORDER
ORDER
AND NOW, this gl ~' day of August, 2003, the pending motion of the defendant,
Kimberley Rogers (Kathc) for mo&ficat~on of court order and primary physical custody of the
children of the parties is DENIED. This order is a temporary order and is being issued in light of
the impending school year. This order shall become final upon the filing of an order to that
effect accompanied by a written opinion of this court.
BY THE COURT,
o~c. Howett, Esquire
For the Plaintiff
.)~frey B. Engle, Esquire
For the Defendant
:rim
STEPHEN BALABAN,
Plaintiff
VS.
KIMBERLEY ANNE KATLIC,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
02-2679 CIVIL
CIVIL ACTION- LAW
CUSTODY
IN RE: PETITION OF PLAINTIFF TO MODIFY FOREIGN CUSTODY ORDER AND
COUNTERCLAIM OF DEFENDANT FOR PRIMARY PHYSICAL CUSTODY
BEFORE HESS, J.
ORDER
AND NOW, this :1 '~' day of August, 2003, the petition of the plaintiffto modify
foreign custody order of October 29, 1997, is GRANTED, and the plaintiff shall cominue to have
primary physical custody of the children of the parties, the defendant shall have rights of partial
physical custody and the parties shall continue to share legal custody of the children, as to all of
which this court assumes jurisdiction.
The counterclaim of the defendant for primary physical custody of the children of the
parties is DENIED.
John C. Howett, Jr., Esquire
For the Plaintiff
Jeffrey Engle, Esquire
For the Defendant
BY THE COURT,
K~n A. Hess, J.
:rlm
STEPHEN BALABAN,
Plaintiff
VS.
KIMBERLEY ANNE KATLIC,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
02-2679 CIVIL
CIVIL ACTION - LAW
CUSTODY
1N RE: PETITION OF PLAINTIFF TO MODIFY FOREIGN CUSTODY ORDER AND
COUNTERCLAIM OF DEFENDANT FOR PRIMARY PHYSICAL CUSTODY
BEFORE HESS, J.
OPINION AND ORDER
This matter initially came before the court on the petition of the plaintiff to modify that
portion of a custody order requiring that venue in any custody dispute would lie in either Dade
County or Broward County, Florida. This petition was opposed by the defendant who has
countered with a petition that primary physical custody of the parties' children should be
awarded to her. The facts underlying this dispute are relatively uncomplicated though the
resolution is not.
The parties first met in Florida in 1988 and began dating. Justin D. Katlic was bom
September 10, 1989, and Benjamin T. Balaban was bom November 15, 1990. The parties
married on November 26, 1990. Following the marriage and while the couple continued to
reside in Florida, their third child, Savannah K. Balaban, was born September 11, 1993. The
parties were separated in June 1996 and eventually divorced in October of 1997. Initially, while
residents of Florida, the parties shared physical custody of their children. When Mrs. Rogers,
then Kimberley Katlic Balaban, moved to Broward County from Dade County, Mr. Balaban
secured an order granting him primary physical custody of the children. In October of 1997, the
parties entered into a marital settlement agreement in which Mr. Balaban maintained primary
02-2679 CIVIL
physical custody of the three children. The mother had partial custody of the children three
nights a week.
Mrs. Rogers left Florida for Santa Fe, New Mexico in September of 1999. She returned
to Florida in February of 2000 and remained with the children and Mr. Balaban at his residence
until June of 2000 when she again left for Santa Fe. One of the children, Benjamin, was
permitted to move with his mother and stayed in New Mexico lbr one full school year. All three
children were permitted to spend time together during holidays throughout Benjamin's stay with
Mrs. Rogers. Benjamin returned to his father's care for the 2001 school year because he missed
his siblings.
The children were permitted to travel to New Mexico to see their mother in July of 2001.
They returned to their father in August of 2001. Mr. Balaban and the children then moved to
Pennsylvania. We are satisfied that the mother was aware oftlr~is move. Part of the reason for
the father's move to central Pennsylvania was because the chihtren had expressed a preference to
relocate to Pennsylvania to be closer to their extended family.
In March of 2002, the father sent the mother a stipulation that would allow Pennsylvania
to rightfully assume jurisdiction inasmuch as neither party continued to reside in Florida and
Pennsylvania was now the "home state" of the children. In the meantime, Kimberley had met
Raymond Rogers in Santa Fe in April of 2001. The parties began dating and were married on
April 18, 2002, in Santa Fe, New Mexico. Having been notified of the father's attempt to
transfer jurisdiction of the custody case to Pennsylvania, the mother undertook to move to
Florida. Neither father nor the children learned that the mother had moved nnfil May of 2002.
We find the plaintiff's recitation of subsequent events to be factually accurate. "On June 3,
2002, after mother had refused to sign the stipulation and had moved to Florida in a clearly
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02-2679 CIVIL
surreptitious manner, father filed a petition to modify foreign custody order with the Court of
Common Pleas of Cumberland County. The petition itself did :not seek to change custody,
merely jurisdiction. The petition was served on Mother on June 5, 2002. On June 5, 2002,
Mother reported an allegation of child abuse against Father and his brother, William Balaban,
based on alleged incidents occurring months earlier, which report was ultimately determined to
be unfounded."
The parties in this case are both capable parents. It is clear, however, that the father has
been the primary caregiver in recent years. What makes the case truly difficult is the strongly
stated preference of the children to live with their mother. We have thought long and hard about
this case because of the clearly stated desires of the children. It is possible that a court will once
again, perhaps in the not too distant future, re-examine this case should the preference of the
children continue to be the same as they grow older. In the meantime, however, we have
concluded that, as things currently stand, matters can be summarized as described by the
plaintiff; namely, "[b]ut for the preference of the children, there is no evidence to suggest that
changing custody would be in the children's best interests." (Plaintiffs Brief, p.10).
Indeed, the paramount consideration in all custody maP:ers is the best interests of the
child. McMillen v. McMillem 529 Pa. 198,602 A.2d 845 (1992). To ascertain the child's best
interests, the trial court is required to "consider all factors whic, h legitimately impact upon the
child's physical, intellectual, moral and spiritual well being .... "Zummo v. Zummo, 394
Pa. Super. 30, 574 A.2d 1130 (1990). Where an existing custodial arrangement has satisfactorily
served the best interests of the child, courts have been loathe to disturb the status quo. See
Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998). On the other hand, the status quo is only one
factor to be considered in custody cases. Id~. The case of Com. ex rel. Oxenriter v. Oxenriter,
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02-2679 CIVIL
298 Pa. 63,434 A.2d 130 (1981), cited by the plaintiff, is instructive on this point. In that case,
the father had been the primary physical custodian of two female children up until the time of
hearing when the trial court awarded custody of his daughters to their mother. While
acknowledging that both parents were fit, the trial court relied on its belief that the mother would
be better able to care for two female children. In reversing, the Superior Court noted that the
"greatest deficiency in the lower court's opinion is its failure to fully address the significance of
maintaining the status quo on the children's development." Id_.:. at 133.
While there are significant differences between the Oxe. uriter case and the matter sub
judice, there are important parallels. Here, the father has been the primary physical custodian of
the children for more than five years. He has provided for the .children spiritually, emotionally,
physically and financially. He is tireless in his involvement in his children's activities. He
borders on the rigorous in insuring regular church attendance and religious instruction. The fact
that he may not always spend as much time with the children as they would like appears to be the
result of his occupation for he certainly, otherwise, enjoys being a parent. The father has made
academics a high priority and the children have received good grades while they are in their
father's custody. The father meets with the children's teachers, volunteers his time in school
activities and assists the children with their homework.
The father also has an extensive family network. The extended family is close and the
families are able to come to the aid of each other in times of need. Also (as sun~mafized in the
brief of the plaintiff):
By all accounts, the children are well behaved,
courteous and accomplished in their individual
activities. The children's exemplary appearance
and behavior in their interview with the court is
itself a testament to Father's upbringing of them..
02-2679 CIVIL
As noted previously, this matter is chiefly complicated by the stated preference of the
children to live with their mother. We have no doubt that the children may find their mother
easier to talk to and that she stands in contrast to a father who no doubt is occasionally
authoritarian and sometimes distant.
There are, of course, many Pennsylvania cases which have put in context the preference
of the children. One of the more frequently cited is that ofMcMillen v. McMillen, 602 A.2d 845
(Pa. 1992).~ In this case, the trial court found that both the home of the mother and that of the
father were equally acceptable. The court, in awarding custody of the child, Emmett, to his
father found that the stated preference of the child was to be given great weight in the context of
that particular case. The Superior Court reversed and the Supreme Court, in reversing the
Superior Court, noted, inter alia:
Although the express wishes of a child are not
controlling in custody decisions, such wishes do
constitute an important factor that must be
carefully considered in determining the child's best
interest. The child's preference must be based on
good reasons, and the child's maturity and
intelligence must be considered. The weight to be
given a child's testimony as to his preference can
best be determined by the judge before whom the
child appears.
Our review of the record shows that Enunett's
preference to live with his father is supported by
mom than sufficient good masons. Emmett
testified that his stepfather frightens, upsets and
threatens him, and his mother does notlfing to
prevent this mistreatment. He testified that he does
not get along with either his mother or his
stepfather, and that he gets along well with his
stepmother. His testimony also revealed that his
mother and stepfather leave him alone after school
I Cited supra.
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02-2679 CIVIL
and that, even though his father and stepmother
work, he is never left alone when he is at his
father's home for the summer. Emmett also stated
that his mother interferes with his sporting and
farming activities and refuses even to watch him
play ball. Thus, we find that Emmett's steadfast
wish to live with his father was properly
considered, and we find no abuse of discretion in
the amount of weight afforded that preference.
Id., at 847-848 (citations omitted).
This case is very different from McMillan. Here, the clfildren do not complain about the
kind of negatives which the mother presented in McMillan. Instead, with the exception of
Benjamin, the children simply want to give living with mother "a try." We do not mean to
suggest that this is a bad thing or that it is out of the question f;~r the future. In the meantime,
however, we do not believe that such experimentation is in the best interests of these children.
It is true that our expert in this case, Dr. Arnold Shienvold, recommended that the
children be given an opportunity to live with their mother. His recommendation, however, was
based upon some factual assumptions which are not, in the end, accurate. Most notably, the
children do not have the level of supervision in Florida which Dr. Shienvold assumed. In the
meantime, as Dr. Shienvold recognized, there are important advantages in the children's living
with their father during the school year. The father lives in a very nice neighborhood. The
children are within a short walk of their schools and can likewise walk to their activities. Much
about the mother's neighborhood is unknown. It cannot be forgotten that life with their mother
is better, as far as the children are concerned, precisely because there is the more relaxed
atmosphere of holiday and vacation periods. It is not surprising that they find less enjoyable the
structure of living with their father during the school year.
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02-2679 CIVIL
As noted by the plaintiff, another important factor for the court to consider is which
parent is more likely to encourage contact between the children and the non-custodial parent. 23
Pa.C.S.A. 5303(a)(2). In that regard, the father has a long track: record of insuring that the
children maintain contact with their mother. This he has done, consistently, even though
substantial distances have separated the parties.
Both parties concede that this case must undergo the analysis as set forth in G-ruber v.
Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). Gruber has been held to apply to cases even
where it is the non-custodial parent who seeks to relocate with the child. See Clapper v. Harvey,
716 A.2d 1271 (Pa. Super. 1998). The Gruber factors are well known:
First, the court must assess the potential
advantages of the proposed move and the
likelihood that the move would substanlially
improve the quality of life for the custodial parent
and the children and is not the result of a
momentary whim on the part of the custodial
parent .... Next, the court must establish the
integrity of the motives of both the custodial and
non-custodial parent in either seeking the move or
seeking to prevent it .... Finally, the court must
consider the availability of realistic, substitute
visitation arrangements which will adequately
foster an ongoing relationship between the child
and the non-custodial parent.
Gruber, at 184,583 A.2d at 439.
In acknowledging that these factors applied where relocation was sought by the non-
custodial parent, the court in Tripathi v. Tripathi, 787 A.2d 436 (Pa. Super. 2001), went on to
note:
When the petitioning parent is not the custodial
parent and, as here, never has been the primary
custodial parent, short of a determination that the
custodial parent is unfit or that there is. some
02-2679 CIVIL
unique and highly beneficial benefit to the child in
relocation, the burden faced by the non-custodial
parent seeking relocation of the child is a very
heavy one.
Id. at 439.
We agree with the plaintiff that there is no evidence that there will any substantial benefit
to the children in their move to Florida. There has been no beneficial impact upon the mother's
employment situation. Any benefit to the children's education or spiritual or emotional well
being is at best speculative. There is no extensive family support network available to the
children in Florida.
We do not impugn the mother's motives in seeking to give effect to the preference of her
children. Nonetheless, her move back to Florida in 2002 was clearly designed to give her better
leverage in the custody dispute. If, in fact, her sole motive was to establish a better relationship
with the children, she could just as easily have moved from New Mexico to Pennsylvania.
We are satisfied that the mother's request for relocation fails under at least two of the
three tests in Gruber. In fact, we have a concern even about the third factor. While modem
transportation can certainly facilitate visitation arrangements, even over long distances, it is hard
to visualize a viable alternative custodial schedule for the father, given the involvement he has
had in the lives of the children since their birth.
It is unfortunate that these two parents are separated by such distance. The best
arrangement would bring them closer together and insure regular and frequent contact on the part
of both parents with their children. After the father moved to Pennsylvania, however, the mother
chose to relocate to Florida as opposed to Pennsylvania. The.. best of scenarios is, therefore, not
possible.
02-2679 CIVIL
Prior to the issuance of this opinion, we entered a temporary order denying the
defendant's petition to modify. We now make that order a final order. ORDER
AND NOW, this z ?' day of August, 2003, the petition of the plaintiff to modify
foreign custody order of October 29, 1997, is GRANTED, and the plaintiff shall continue to have
primary physical custody of the children of the parties, the defe. ndant shall have rights of partial
physical custody and the parties shall continue to share legal custody of the children, as to all of
which this court assumes jurisdiction.
The counterclaim of the defendant for primary physical custody of the children of the
parties is DENIED.
BY THE COURT,
John C. Howett, Jr., Esquire
For the Plaintiff
Jeffrey Engle, Esquire
For the Defendant
:rim
9