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HomeMy WebLinkAbout94-06525 I I &1 ~ 3 . .n '7' c fJ j - .... 3 ,f . ,_ ~ r- I JI . i ltJl co J ~I ~I , I -::r- I 0-/ . o <: . ~ . . -... -.. .. .. '0 YOU All HIIII' Non"ID TO PLlAD TO T"' .HCLOMD PLUGINI WITHIH T'ff.Nn CIO) D"'" of'..."CI HIIIO' 01 A DePAULT JUD'..ff' MAY II 1lftllllD "IAlNIT YOU. Nav 1 719m ~.. Anll"" rOI aROU.JOS. OIL-ROY III HOUSTON. P. C. ATTO"N.V. AT LAw .. NC..TH HANOVIUt eT'U:ST CARL-ISL.E. PENNSYL.VANIA 17013 17171 a.a..UI7'" "...'..0 . \ f \ ". " ~ .. Keuneth William Wilkinson, .... Plaintiff IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNlY, PENNSYLVANIA v CIVIL DIVISION. LAW NO. 94 - (c 5J5 G'LJi T fo\l'1 Qndy Car1er WOlan and Patricia Rice, Defendant CUSTODY ORDER OF COURT AND NOW, lhis r/tlaay of f\lv"'~ be?" 1994, it is hereby directed that the parties and their respective counsel appear before Samuel Andes. Conciliator, at ,c.;;c {\I. I d- fl-t Sl LftnVy 11,.- . on the 11LJ,da'l of '77."1 ",.,. y . 19~ . at "3 f-.m., for a Prehearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues 10 be heard by the Court, and to enter into a temporary order. Either party may bring the child who is the subject of this custody action to the conference, but the child's attendance is not mandatory. Failure to appear at lhe conference may provide grounds for entry of a temporary or permanent order, FOR THE COURT: BY: II 'LL~. Custody Conciliator YOU SHOULD TAKE TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR CUMBERLAND COUNTY COURTHOUSE. CARLISLE, PA 17013 7171240.6200 . '. Kenneth William Wilkinson, .... Plaintiff IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNlY, PENNSYLVANIA v CIVIL DIVISION . LAW Cndy Caner Wo&an and Patricia Rice, Defendant NO. CUSTODY NOTICE You have been sued in Court. If you wish 10 defend againsl the claims set forth in the following pages, you must take action within twenly (20) days after this complaint and notice are served, by entering a wril1en appearance personally or by al10mey and filing in writing with the court your defenses or objections 10 the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important 10 you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 717/240-6200 ~ from birth with Plaintiff and/or Defendant since their birth, in Carlisle, being placed temporarily with Patricia Rice while Plaintiff was confined in prisoll and Defendant surrendered possession to Patricia Rice, Since Plaintiff has a home and a wife and has resided in Carlisle for fifleen years, Plaintiff considers Carlisle to have sufficient interest to justify jurisdiction. Plaintiff resides at 7 Gobin Drive, Carlisle, Pennsylvania. During the past five years, the children have resided with the following persons and at the :+:11 3((1(' if /qcl/ !llC/ en/tal e(} It.f 1- mril-qO a (lrl ha tlc./ {pI- (t9 . 'rbtWtVltlr ~dRl1I fV~nll --- '1 \fr '6 It)-JL()(> The father of the children is Kenneth William Wilkinson, Jr" currently residing at 7 Gobin ... ( '). ( ;l)I{i ,) Drive, Carlisle, Cumberland County, Pennsylvania 17013, (I nll. following addresses: Person Address ~ Patricia Rice, sister of Plaintiff 302 N. Lawrence St. Mt. Union, PA 17066 April 1993 - present Cindy Carter Wogan Green St. Harrisburg, PA Jan, 93 - April 1993 Robin Wilkinson Jackson 222 Maple Ave, Altoona, PA 16601 June 1991 - Dec. 1992 Cindy Carter Wogan 313 N, Pitt St. Carlisle, PA 17013 Oct. 1990 - June 1991 Kenneth William Wilkinson, Jr. & 313 N, Pitt St. Cindy Carter Wogan Carlisle, PA 17013 Sept. 1990 - Oct. 1990 Kenneth William Wilkinson, Jr. & 104 B Lincoln St. Cindy Carter Wogan Carlisle, PA 17013 1986 - Sept. 1990 The mother of the children is Cindy Carter Wogan, currently residing at 117 Pine Street, Harrisburg, Dauphin County, Pennsylvania. She is not married to Plainliff. : , He is married to Teresa Lynn Wilkinson; date of marriage August 17, 1994. 4, The relationship of Plaintiff 10 the children is that of father, The Plaintiff currently resides with the following persons: Hiun.Q Relationshio Teresa Lynn Wilkinson Joseph Matthew Clayton Delong Letashia Lynn Delong Wife Stepson Stepdaughter S. The relationship of Defendant to the children is that of mother, The Defendant currently resides with the following persons: ~ Relationship Unknown Unknown 6. The Plaintiff has not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the children in this or another Court. 7. Plaintiff has no information of a custody proceeding concerning the children pending in a Court of this Commonwealth. 8. Plaintiff does know of a person not a party to the proceedings who has physical custody of lhe children or claims to have custody of visitation rights with respect to the children. This person is Plaintiffs sister Patricia Rice. 9, The best interest and permanent welfare of the child will be served by granting the relief requested because Plaintiff is married, has a home with adequate facilities, wants his children returned to their home with him, and because the Plaintiff is capable of providing for the children, 10. Each parent who has parental rights to the children which have not been terminated .. ; and the person who has physical custody of the children are parties to the aClion, WHEREFORE, Plaintiff requests this Court to grant custody of the children to Plaintiff, Respectfully submitted, Date: '1- I r. 'l'r \ n ~- ~-\-\ L--:~ \j John H. Broujos, Esquire ~mey for Plaintiff BROUJOS, GILROY & HOUSTON, P.C. 4 North Hanover Street Carlisle, Pennsylvania 17013 717/243-4574 717/766-1690 FAX# 717/243-8227 I verify that the statements in the foregoirlg pleading are true and correct. I understand that false statements herein are made subject to the penalties of 18 PaCS 4904 relating to unsworn falsification to authorities, ~w.~ JQ. Kenneth William Wilkinson, Jr. 1..1-' lIt . . :- .f') " .: .J ~- ., .. , III ~ 3 ~ ~ e ; ~ j ~ Z :r.~~=~~ :x: III M >- g ~ 2 ~ < III = 0 ~ ;;. 0 ~ ~ '" lid ~ ~ I<l " >- P N 0 ~ ~ x -< ~ .' ~ . ~ at the State Correctional Institution at CaMp Hill from July of 1991 to July of 1994. Upon his incarceration, all three of the children went to live temporarily with his sister in Altoona, where they stayed for approximatelY 18 months. The mother then had the children with her for approximately 3 months (January through April, 1993) when she again gave them up and, through arrangements apparently made by the father, all three children went to live with the father's other sister, the Defendant, patricia Rice, in Hount Union, Huntington County, Pennsylvania. Although Cindy Wogan is named as a party and has been served, she has not appeared in this action. The father explained that she has a severe drug prOblem and her only involvement with the children over the last year or so has been an unsuccessful effort to place them for adoption. It does not appear that the mother will play any part in this litigation. 4. The father contends, and Hs. Rice, through her attorney, aCknowledges that the arrangements whereby the children went to stay with Rice were only intended to be temporary and were intended to terminate when the father was released from prison, returned to Carlisle. and got back on his feet. In fact, Ms. Rice is apparently willing to return the children to the father in Carlisle, but wants to string that out for several months so the children remain with her until the summer of 1995. 5. The father has some serious questions about the facilities in which the children are now living in Mount Union. Apparently the oldest child is now staying with yet another sister of his, Denise Wilkinson, under arrangements made by Hs. Rice. The other two children still live with Rice, but only one of them attends school and they live in very crowded conditions, at least according to the father. 6. It does appear that the father bas returned to some measure of stability. He has been employed continuously for six months and his attorney presented a letter from 2 his employer co..en~ing his faithfulness. He is living with a woman in suitable housing. That wo.an has two other children who apparently do well in school. 7. The one issue preventing this case frOM reaching a quick solution is a challenge to the venue of this court raised by Patricia aice. 8he claims that, since the children have lived with her in Huntington County for more than 6 Months, venue properly lies there. She filed a preliminary objection which is scheduled for argument before this Court on 1 February 1995. The argument will be submitted on a set of stipulated facts presented in the form of a "Case Stated", a copy of which is attached. In addition to those facts, I think the Court should consider the following: A. Both parties acknowledge, at least through their counsel, that the children were placed with Patricia Rice on a temporary basis only and that it was always expected they would return to live with their father. B. For most of their lives, the children resided here in Carlisle. There appear to be more contacts with the community here in Carlisle than in Hount Union. C. Ultimately this will come down to a test between a parent and a non- parent for custody of the children and, if the Court finds the parent can provide an adequate home for the children, that finding will dispose of the case. Virtually all of the information needed to make that finding is located in Carlisle, where the father lives and has lived for the last 15 years. D. A prompt resolution of this case is in everyone's best interest. The two children who are in school are only in first and third grade and it is not necessary that they complete the school year in their present school. 3 -. The disruption of their life caused by the father's difficulties vith the lav is more important to resolve quickly than their completion of the current school year. B. Th9 father had some contact vith the children. in the form of visitation, from his release from prison until this action vas filed. After the action vas filed, he claims Patricia Rice denied him access to the children. I persuaded the attorneys for both sides to vork out times for the father to see the children vithout a formal court order (vhich could not very veIl be entered until the venue matter vas decided). She agreed, through her attorney, that the father could see the children most veekends upon 48 hours' advance notice. If she does not keep that promise and thus prevents the father from seeing the children from nov until the time this matter is resolved by some court order, the Court should doubt the sincerity of her claims that she is acting out of her concern for the best interest of the children and that she delays the return of the children to their father only in an effort to allov them to become reacquainted vith him. Hopefully this information and these ideas viII be helpful in the Court determining the preliminary Objections as promptly as possible so that the court of proper venue can decide the underlying case quickly and the children can have some stability in their 11 ves. 18 January 1995 ~'--JtQJ?Q. ~ Sa L. Andes Custody Conciliator I II Ii ,I I' II 4 ~enneth William Wilkin.on, Jr.: IN THE COURT or COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL DIVISION - LAW Cindy Carter Woqan and Patricia Rice NO. 94-6525 CUSTODY CASE STATED ON PRELIMINARY OBJECTIONS FILED BY DEFENDANT PATRICIA RICE TO COMPLAINT FOR CUSTODY OF PLAINTIFF FATHER Defendant The parties Plaintiff and Defendant Patricia Rice agree as follows: 1. Plaintiff Kenneth William Wilkinson, Jr., resides at 7 Gobin Drive, Carlisle, Cumberland County, Pennsylvania. 2 Defendant Cindy Carter Woganr mother, resides at 212 N. 4th Street, Harrisburg, Dauphin County, Pennsylvania. 2 Defendant Patricia Rice resides at 302 N. Lawrence Street, Mt. Union, Huntingdon County, Pennsylvania. 3. Plaintiff seeks custody of the following children: Cleo Antoinette Wilkinson, born July 30, 1986; Sheena Marie Wilkinson, born February 3, 1988; and Cheree Renee Wilkinson, born October IS, 1989. 4. The children were born in Carlisle. 5. The children are presently in the physical possession of Plaintiff's sister Patricia Ricer 302 N. Lawrence Street, Mt. Union, Huntingdon County, Pennsylvania. 6. The children had resided from birth with Plaintiff, being placed temporarily with patricia Rice. Subsequently, they remained with Patricia Rice while Plaintiff was confined in prison. KENNETH WILLIAM WILKINSON, JR. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTYr PENNSYLVANIA NO. 94-6525 v. CIVIL ACTION-LAW CINDY CARTER WOGAN and PATRICIA RICE Defendants CUSTODY DEFENDANT PATRICIA RICE'S PRELIMINARY OBJECTIONS TO COMPLAINT FOR CUSTODY AND NOW, comes Defendant Patricia Rice, through her attorney James K. Jones, Esquire, and files Preliminary Objections, a statement of which follows: 1. A Complaint for Custody was filed by Plaintiff in this Court. A Conciliation Conference has been scheduled for January 17, 1995. 2. Paragraph 3 sets forth that the children are in the physical custody of Patricia Rice who resides in Mt. Unionr Huntingdon County, Pennsylvania. Ms. Rice has physical custody of Sheena M. Wilkinson and Cherie R. Wilkinson. 3. Paragraph 3 also sets forth that the children have resided in Huntingdon County since Aprilr 1993. 4. Paragraph 3 also sets forth that the children have not resided in Cumberland County since June, 1991. 5. Pa. R.C.P. 1915.2(al requires venue to be in the home county of the children or in a county in which the parties have significant contacts. ,:jrti~~i~:;'~+~;';~;"ti<.-~\~"~~'~'; ," " "bi..li' J~H 12 2 30 PH '95 I.', 1;1' J \,,' FIG~ ;';h':r:.hV (t- ,,' III Y ~' :, ii . r L , .' 1 .:. """.".,,.,."'...-,..-_._H__..__.....______~_...~ --"--_.~-.---~. I-' , r . I ~ .' " .' . " . " < ", "4-____'" -.",. \' .....> ~ KENNETH W. WILKINSON, JR., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLA.ND COUNTY, PENNSYLVANIA v. NO. 94-6525 CIVIL TERM CINDY CARTER WOGAN and PATRICIA RICE, Defendants QfItiIQN HOFFER, J.: This case arises from a complaint for custody filed by plaintiff Kenneth Wilkinson. Presently before this Court for disposition Is a preliminary objection challenging venue by defendant Patricia Rice, the plaintiffs sister. A pre-hearing custody conference was held on January 17, 1995, and the parties stipulated to the following facts: 1. Plaintiff Kenneth William Wilkinson, Jr., resides at 7 Gobin Drive, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Cindy Carter Wogan, mother, resides at 212 North 4th Street, Harrisburg, Dauphin County, Pennsylvania. 1 3. Defendant Patricia Rice resides at 302 North Lawrence Street, Mt. Union, Huntingdon County, Pennsylvania. . . 4. The children were born In Carlisle. 'Although Cindy Wogan Is a named party and has been served, the Custody Conciliator's report Indicates that she has not appeared In this action. In the conciliator's opinion, It does not appear that the mother will participate In this litigation. 94-6525 CIVIL TERM 5. The children are presently In the physical possession of plaintiffs sister, Patrlcla Rice. . . 6. The children had resided from birth with plaintiff, being placed temporarlly with Patricia Rice. Subsequently, they remained with Patrlcla Rice while plaintiff was confined In prlson. 7. Plaintiff upon his release now has a home and a wife and a Job In the Carlisle area. 8. Plaintiff has resided In Carlisle for fifteen years. 9. Durlng the past five years, the children have resided with the following people at the following addresses: ~ Amm.ES.S Patrlcla Rice 302 N. Lawrence St. Aunt Mt. Union, PA 17066 [Huntingdon County] Cindy Carter Green Street Wogan, Mother Harrlsburg, PA [Dauphin County] Robin Wilkinson 222 Maple Ave. Jackson Altoona, PA 16601 [Blair County] Cindy Carter 313 N. Pitt St. Wogan Carlisle, PA 17013 [Cumberland County] Kenneth W. 313 N. Pitt St. Wilkinson, Jr. Carlisle, PA Father, and [Cumberland County] Cindy Carter 2 I2AIES Aprll1993 - . present Jan. 1993 - Aprll 1993 June 1991 - Dec. 1992 Oct. 1990 - June 1991 Sept. 1990 - Oct. 1990 94.6525 CIVIL TERM Wogan, Mother Kenneth W. Wllklnson, Jr. and Cindy 104 8 Lincoln St. Carlisle, PA 17013 [Cumberland County] 1986. Sept. 1990 The plaintiffs complaint alleges that venue Is properly established In Cumberland County because the plaintiff has a home and a wife In Cumberland County and has lived In Cumberland county for fifteen years (Complaint at 2). The plaintiff also argues that venUA rests In Cumberland County because such Jurisdiction Is In the best Interests of the children. In support of this assertion, the plaintiff contends that the children have significant connections with Cumberiand County and that substantial evidence concemlng the present and future care, protection, training and personal relationships of the children Is present In Cumberland County. The defendant has flied preliminary objections asserting that Jurisdiction Is Improper because the plaintiff has not fulfilled the venue requirements of Pa.R.C.P. 1915.2(a). We address this preliminary objectIon. ~ Venue In custody cases Is govemed by Pa.R.C.P. 1915.2. This rule provides In pertinent part: (a) An action may be brought In any county 3 94.6525 CIVIL TERM In spite of a lack of 'home county' status In Cumberland County, the plaintiff asserts that venue has been properly asserted under Pa.R.C.P. 1915.2(a)(2). In making this assertion the plaintiff argues that the children have significant contacts with this county and that substantial evidence relating to the children's Interests Is present In this county. With regard to the burden of proof In cases Involving the attempt to establish venue In a forum other than the home county, the Superior Court has held that this burden falls to the petitioner seeking venue In the foreign county. Warman v. Warman, 294 Pa. Superior Ct. 285, 439 A.2d 1203 (1982). '[T]he only justifications for a court's assumption of the possible, but less favored, Jurisdiction under the 'significant contacts' provisions are Justice and propriety under 5349(a) [of the Uniform Child Custody Jurisdiction Act]. !!t. at 1211-12. The legislative history of this Act Indicates that the burden on a petitioner who wishes to establish an alternative Jurisdiction Is 'very heavy Indeed.' !!t. at 1211-12. Thus, as a general rule, the home [county] of the child Is the preferred forum. ~,375 Pa. Superior Ct. 203, 544 A.2d 59 (1988). In addressing the Issue of 'significant contacts' Jurisdiction the Pennsylvania Superior Court has held that a period of five years which a child had spent In California In the primary custody of his mother made California the appropriate forum for custody actions concerning the child, and that a Pennsylvania 5