HomeMy WebLinkAbout95-03522
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AUG 1 4 1995 BIZ.
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JAMES A. WENTZEL,
Plaintiff
IN THE COURT OF CCX1MON PLEAS OF
: CUMBERLAND COl.lN'n, PENNSYLVANIA
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.
vs.
NO. 95-3522
CIVIL TERM
:
JANET WENTZEL,
Defendant
: CIVIL ACTION
IN CUSTODY
amm OFaxJRT
AND lOf, this I ,trl day of 14 "t)..",t , 1995, upon consideration of
the attached Custody Conciliation Report, it is hereby ordered and directed
as follows:
1. A Hearing is scheduled in Court Room No. .s- of the
Currberland County Court House on the ";>'7hL day of ..f,..a:r.;_~J...},
1995, at /.' jo ~m., at which time testimony will be taken in the above
case. In that the Mother has proposed to relocate outside of Pennsylvania
with the Child, the Mother shall be deemed to be the moving party for
purposes of testimony and shall proceed initially with testimony in this
case. Counsel for the parties shall file a memorandum with the Court, which
shall sunmarize each party's position on custody and shall also provide a
list of witnesses that each party will call to testify and a sunmary of each
witnesses anticipated testimony. This memorandum shall be filed with the
Judge and opposing counsel at least ten (IO) days prior to the Hearing date.
2. Pending further Order of this Court, the parties shall continue to
make custody arrangements by mutual agreement under the schedule currently
in effect.
BY THE COURT,
cc: Kristin R. Reinhold, Esquire
Mary A. Etter Dissinger, Esquire
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JAMES A. WENTZEL.
Plaintiff
IN THE COURT OF CCX>IMON PLEAS OF
CUMBERLAND CXlUNTY, PENNSYLVANIA
vs.
NO. 95-3522
CIVIL TERM
:
JANET WENTZEL,
Defendant
CIVIL ACTION
IN CU5roDY
aJBTOOY <XH:ILIATICIf 5lJlMARY REPOOT
IN ACaJUlANCE WITH ClIIBmU.AND <XX.Nl'Y RULE OP CIVIL PRi(lo 'to I{JRB
1915.3-8. the undersigned Custody Conciliator submits the fOllowing report:
1. The pertinent information pertaininq to the Child who is the
subiect of this litigation is as follows:
NAME
BIRTHDATE
CURRENTLY IN CU5roDY OF
Steven Wentzel
October 17. 19BB
Defendant/Mother
2. A Conciliation Conference was held on August 9. 1995. with the
followinq individuals in attendance:
The Father. James A. Wentzel. with his counsel. Mary Etter
Dissinger. Esquire. and the Mother, Janet Wentzel. with her counsel. Kristin
R. Reinhold. Esquire.
3. The parties separated at the end of 1993 and the Child has resiged
primarilv with the Mother since that time. On September 30. 1994. ~e
parties entered into a Settlement Agreement which provided for shared legal
custody and a liberal partial custody schedule for the Father. Since that
time. the parties have successfullv and cooperatively adhered to the custodv
schedule wherebv the Father has custody of the Child two weekdav evenings
each week and one overnight period of custody every weekend, The Mother
wishes to move to Florida with the Child prior to the commencement of the
1995-1996 school vear and the Father initiated these proceedings to prevent
relocation of the Child.
4, The Mother's position on custody is as follows:
The Mother's sister moved to Daytona. Florida three vears ago and
the Mother has visited her a few times since then. In January 1995. the
Mother started considering moving with the Child to Florida to reside with
the Mother's sister. The Mother's sister has a large beautiful home in
which she currentlv resides alone, The sister's home is located on the
school bus line and the Child would attend Long Street Elementary School.
The Mother is currentlv emploved at the Computer Learning Network and her
incane is approximatelv $21.400.00. AlthoUQh the Mother has no specific
emplovment prospects in Florida. she stated that she has obtained a list of
maior emplovers and agencies in the area and she intends to begin lOOking
for work as soon as possible. The Mother stated that her expected income in
the Daytona area would probablv be lower than her current income.
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5. The Father's pOsition on custody is as follows:
The Father believes that it would not be in the Child's best
interest to move with his Mother to Florida. The Father stated that he has
no intention of leavinq his employment and friends in order to also move to
Florida. The Father is currently employed at Pennsylvania Blue Shield with
an income of approximately $46.000.00. He has determined that he could not
obtain a transfer throUQh Blue Shield to Florida but acknciwledQed that there
are Blue Shield offices in Florida. the closest to Davtona beinq in
Jacksonville (approximatelv 2 hours from Davtona). The Father expressed
concern that he would be able to continue the meaninqful relationship he has
with the Child if he were to move to Florida and the Father noted that the
Child has always lived in the local area and his community contacts are in
Pennsylvania. The Father stated that his family resides in Kutztown.
Pennsylvania, The Mother's family. except for her sister in Florida.
resides in Pittsburqh. The Father resides alone in a two bedroom apartment
in Mechanicsburq, The Father expressed willinqness and confidence in his
ability to serve as the Child's primarv caretaker.
6. Both parties stated their willinqness to encouraqe liberal and
meaninqful contact between the Child and the other parent. Each party
propOsed that if they were to be the primary caretaker. the other party
could have partial custody durinq the swrmer months and on all school
vacations.
7. The Mother's propOsed move to Florida appeared to be motivated bv
her desire to live with her sister and her lifestyle preference for a warmer
climate. There are no alleqations that the Mother is attemptinq to
frustrate the Father's ability to maintain a continuous and meaninqful
relationship with the Child, The parties were unable to aqree as to primary
custody of the Child. With the exception of their beliefs and preferences
on that issue. the facts stated above were not disputed bv either party,
8. I inquired as to whether the parties wish to have a custody
evaluation performed to assist the Court in makinq a determination as to
primary custody. Neither party believed that a custody evaluation would be
useful under the circumstances.
9, A propOsed Order is attached schedulinq a Hearinq in the above
matter for the purpOses of determininq which party shall serve as primary
custodian of the Child in the event the Mother relocates to Florida. The
Mother requests an expedited Hearinq in the hope that this matter can be
resolved before the Child beqins first qrade. The Child is currently
enrolled to attend first qrade in the Mechanicsburq School District in which
both parents presently reside.
fJv:r ~of
Date
J)&u-,^-,.ddu-1\.~
Dawn S. Sunday. Esquire
CUstody Conciliator
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" JAMES A. WENTZEL,
i: Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
OF PENNSYLVANIA
vs.
JANET WENTZEL,
Defendant
CIVIlI .ACTION
NO. "P - 3SU
IN CUSTODY
Cl..t...:t T~-
ORDER OF COURT
, AND NOW, r JlA Iv <;.: Iqr, \ , upon consideration
of the attached complaint, it is hereby directed that the lparties
and their respective counsel appear before IJ ,. ,....\ -; ,,>~ ,,,v,,y (.~
, the conciliator, at '?'", I.., "'I",;" \\ ""'/I>.l.r,,,;'<J..r;,
.!jib. day of A....w,~c,.1- , 19 C] ~ , at Cf :0" A, 1'Vl,
.m., for a Prehearlng custody Conference. At such conference, an
effort will be made to resolve the issues in dispute; or if this
cannot be accomplished, to define and narrow the issues to be heard
by the court, and to enter into a temporary order. All children
age five or older may also be present at the conference. Failure
to appear at the conference may provide grounds for entry of a
temporary or permanent order.
FOR THE COURT,
BY' O"-dJJ)~
custody Conciliator ,- V /
The Court of Common Pleas of Cumberland County is required by law
to comply with the Americans with Disabilities Act of 1990. For
information about accessible facilities and reasonable
accommodations available to disabled individuals having business
before the court, please contact our office. All arrangements must
by made at least 72 hours prior to any hearing or business before
I, the court. You must attend scheduled conference or hearing.
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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.
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OFFICE OF THE COURT ADMINISTRATOR
COURTHOUSE, 4TH FLOOR
CARLISLE, PA 1701
(717) 240-6200
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JAMES A. WENTZEL,
Plaintiff
vs.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
OF PENNSYLVANIA
CIVIL ACTION
NO.
IN CUSTODY
JANET WENTZEL,
Defendant
NOT ICE T 0 D E FEN D
You have been sued in court. If you wish to defend against the
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I claims set forth in the following pages, you must take action
within twenty (20) days after this complaint and notice are served,
I by entering a written appearance personally or by attorney and
filing in writing with the court your defenses or objections to the
claims set forth against you. You are warned that if you fail to do
so the case may proceed without you and a judgment may be entered
against you by the court without further notice for any money
claimed in the complaint or for any other claim or relief requested
by the Plaintiff. You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
.~ NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
;1 OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GFT LEGAL HELP.
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Court Administrator
Cumberland County Court House
Fourth Floor
1 Courthouse Square
Carlisle, Pennsylvania 17013-3387
(717) 240-6200
-r:;;M. "A:" '~{:-f';l~nger, Esquire
Attorney for Plaintiff
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I, JAMES A. WENTZEL,
Plaintiff
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
OF PENNSYLVANIA
CIVIL ACTION
NO.
IN CUSTODY
vs.
JANET WENTZEL,
Defendant
COMPLAINT FOR CUSTODY
1. Plaintiff is James A. Wentzel, residing at 4181 Elk Court,
Apartment 114, Mechanicsburg, Cumberland County, Pennsylvania.
2. Defendant is Janet Wentzel, residing at 505 Breezewood court,
Mechanicsburg, Cumberland County, Pennsylvania.
3. Plaintiff seeks to alter the custody agreement pertaining to:
the following child:
Name
steven Wentzel
Present Residence
505 Breezewood Court
Mechanicsburg, PA
Age
6 yrs.
The child Steven Wentzel was adopted by the Plaintiff.
4.
,
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in the custody of Janet I
court, Mechanicsburg,
5. The child steven Wentzel is presently
Wentzel who resides at 505 Breezewood
Cumberland County, Pennsylvania.
6. During the past five years, the child Steven Wentzel has
resided with the following persons at the following addresses:
I
,i Person Addresses Date
i! Janet Wentzel 505 Breezewood Court
Steven Wentzel Mechanicsburg, PA 6/94 - present
Janet Wentzel
Steven Wentzel
5207 Royal Drive
Mechanicsburg, PA
1/94 - 6/94
James A. Wentzel
i Janet Wentzel
'i Steven Wentzel
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5207 Royal Drive
Mechanicsburg, PA
10/88 - 12/93
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7. The mother of the child, Janet Wentzel, is the Defendant who
currently resides at 505 Breezewood court, Mechanicsburg,
Cumberland County, Pennsylvania.
8. She is unmarried.
9. The father of the child, James A. Wentzel,
who currently resides at 4181 Elk Court,
Mechanicsburg, Cumberland County, Pennsylvania.
is the Plaintiff
Apartment 114,
10.
He is unmarried.
11.
that
The relationship of Plaintiff to the child, Steven Wentzel, is
of Father. The Plaintiff currently resides alone.
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12. The relationship of Defendant to the child, steven Wentzel, is
that of Mother. The Defendant currently resides with steven
Wentzel.
13. Plaintiff has not participated as a party or witness, or in
another capacity, in other litigation concerning the custody of the
child in this or any other court.
14. Plaintiff has no information of a custody proceeding
concerning the child pending in a court of this Commonwealth.
15. Plaintiff does not know of a person not a party to the
proceedings who has physical custody of the child or claims to have
,
custody or visitation rights with respect to the child.
16. The best interest and permanent welfare of the child will be
served by granting the relief requested because:
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17. Each parent whose parental rights to the child has not been
terminated and the person who has physical custody of the child has
been named as party to this action. All other persons, named below
who are known to have or claim a right to custody or visitation of
the child will be given notice of the pendency of this action and
the right to intervene: NONE.
18. On September 30, 1994 the parties hereto entered into a
Marriage settlement Agreement with the following custody provision:
25. CUSTODY, PARTIAL CUSTODY AND VISITATION
Subject to further order of any Court of competent
jurisdiction, the parties shall enjoy shared legal and physical
custody of the minor child, Steven Wentzel, they agree that primary
physical custody of the said child, Steven Wentzel, shall be with
wife. Husband shall have liberal partial custody rights according
to a schedule to be agreed upon by the parties and which shall be '
consistent with the best interest and welfare of the said child. As
a minimum, Husband shall have partial custody according to the
schedule set forth in Schedule "B" attached hereto and made a part
hereof. Husband shall be responsible for any and all transportation.
incurred because of the periods of temporary custody. Husband shall
give at least twenty-four (24) hours notice, by telephone or
otherwise, of any request of change in a prearranged and agreed to
schedule of temporary custody.
19. since the execution of the Agreement, there has been a
significant change in the circumstances.
20. Defendant wishes to relocate out of state, to Florida at the;
end of August without any valid or compelling reason.
21. Defendant has been employed in and resided in the Harrisburg
area for several years with the minor child,
22. Defendant will start a new job with computer Learning Network
on June 19, 1995 in the Harrisburg area.
23. Defendant has not secured employment in Florida.
24. If Defendant relocates out of state, she will be at least
temporarily unemployed.
25. If Defendant relocates out of state, the minor child, to his
great detriment, will lose contacts with his school, his friends
and his Father.
26. The best interests of the child will be served by the
requirement of the child maintaining said contacts with his school,
his friends and his Father.
27. The best interests of the child will be served by the Court in
modifying the said Order, to require the child and his mother to
reside in Central Pennsylvania until further Order of the Court.
WHEREFORE, Plaintiff requests the Court to direct that the
child, steven Wentzel, not be removed from the jurisdiction, and in
the alternative schedule a hearing thereon before the end of August
1995.
Respectfully Submitted:
DISSINGER & DISSINGER
B~: /!t~',1/~A... ~ .
Mary A. Etter D ssinger
Attorney for Plaintiff
28 N. Thirty-Second Street
camp Hill, PA 17011
(717) 975-2840
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III I verify that the statements made in the Complaint are true
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II and correct. I understand that false statements herein are made
jI subject to the penalties of 18 Pa.C.S. S4904 relating to unsworn
I falsification to authorities.
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VERIFICATION
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JAMES A. WENTZEL,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-3522
JANET WENTZEL,
Defendant
CIVIL ACTION - LAW
IN CUSTODY
TRIAL MEMORANDUM
I. PACTUAL BACKGROUND:
The Defendant, Janet Wentzel, and the Plaintiff, James A.
Wentzel. are the natural parents of the subject minor child, Steven
L. Wentzel, born October 17, 1988.
The parties separated in
January, 1994,
They were subsequently divorced on or about
December of 1994.
The Defendant, Janet Wentzel, has primary physical
custody of the subject minor child pursuant to a Separation and
Property Settlement Agreement dated September 30, 1994. The
Plaintiff, James A. Wentzel, has partial custody for the purposes
of visitation.
The Plaint i ff Is ent i tied to vis i tat ion every
Tuesday and Thursday evening from approximately 5 :00 p.m. until
8:00 p.m.
Additionally, the Plaintiff is entitled to one
overnight visitation period each calendar week to be taken either
Friday at approximately 5:00 p.m, until Saturday at approximately
7:00 p.m., or Saturday from approximately 5:00 p.m. until Sunday at
approximately 7:00 p.m. The parties share legal custody. (A copy
The Defendant began seriously considering relocation to
the Daytona Beach, Florida area immediately following the issuance
of the parties' divorce decree in December, 1994, The Defendant
discussed the proposed move with the Plaintiff, and he also
indicated a willingness to relocate. The parties continued to
discuss their relocation for the next several months. The
Defendant was first put on notice that the Plaintiff was unwilling
to relocate and objected to the Defendant's relocation upon service
of the Plaintiff's Complaint For Custody on or about July 15, 1995.
of the applicable paragraphs of the Separation and Property
Settlement Agreement, marked Exhibit "A", Is attached hereto and
incorporated herein)
The parties have had a strong and cooperative parental
relationship since the time of their separation. The Defendant and
the Plaintiff have worked together on a weekly basis to arrange a
visitation schedule for the Plaintiff which is mutually
advantageous for both parties, The Defendar.t has also allowed the
Plaintiff additional visitation on numerous occasions outside of
the estab1 ished custody schedule in order to promote a close
relationship between the Plaintiff and the subject minor child.
2
.Aai:
The Defendant's sister, Lori Porter, resides in a large
home on Ponce Inlet immediately south of Daytona Beach, Florida.
Lori Porter asked the Defendant to move into her home with the
subject minor child in December, 1994. The Defendant is currently
in the process of obtaining employment in the Daytona Beach area.
The Defendant believes based upon her past employment history in
administrative and personnel management, that she will have no
difficulty obtaining a Job in the relocation area.
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Neither the Plaintiff nor the Defendant has any family in
the Central Pennsylvania area. The parties moved to the area
approximately seven years ago, relative to the Plaintiff's
employment. The Defendant's nearest relatives reside in
Pittsburgh, Pennsylvania, while Defendant's sister resides in
Daytona Beach, Florida.
Procedurally, the Plaintiff filed a Complaint For Custody
on July 8, 1995. A Custody Conciliation was held before Dawn S.
Sunday, Esquire, on August 9, 1995. A custody trial is currently
scheduled before the Honorable Edgar B. Bailey on September 28,
1995, at 8:45 a.m.
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11. DISCUSSION:
As in all custody and visitation matters. the standard to
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be applied is the "best interests of the child", considering all
factors which legitimately have effect upon the child's physical,
intellectual, moral and spiritual well-being. Lee v, Pontine, 406
Pa. Super. 487. 594 A,2d 724 (1991)
More spec i f ically, the
standard to be applied in relocation disputes, as in the case at
bar, is set by Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434
(1990), and is more recently reiterated by this Honorable Court in
Krusen v. Krusen, 44 Cumbo 314 (1995).
In Gruber, the Superior
Court of Pennsylvania stated the factors which are to be considered
by a trial court when deciding whether a custodial parent and child
may relocate at a geographical distance from the non-custodial
parent:
1. The potential advantages of the proposed move, economic
or otherwise, and the likelihood that the move would improve
substantially the quality of life for the custodial parent and
the children and is not the result of a momentary whim on the
part a custodial parent;
2. The integrity of the motive of both the custodial and
non-custodial parent in either seeking the move or seeking to
prevent it; and
3. The availability of realistic, substitute visitation
arrangements which will foster adequately an on-going
relationship between the child and the non-custodial parent,
Gruber V. Gruber, 400 Pa. Super. 174, 184-185, 583 A.2d 434,
438-439 (1990)
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In the present case, the Defendant seeks to relocate for
not only aesthetic advantages but also for improvement in her
quality of life. The Defendant has been offered a place to live by
her sister, with whom she is very close, in her home. The house
itself iJ very large and near to the beach. Both the Defendant and
the mir.or chi Id wi 11 be close to a maternal fami ly member, as
opposed to the isoiated environment in which the Defendant now
lives. The relocation area will also offer to the Defendant
employment growth opportuni ties which do not exist in smaller
towns.
The integrity of the Defendant's motives in desiring to
move to the Daytona Beach, Florida area is supported by the
following factors: The parties throughout their marriage discussed
moving south to a warmer climate. The Plaintiff concurred with the
Defendant's decision to relocate to Florida for several months
previous to the filing of a Custody Complaint, The Plaintiff told
the Defendant that he too would relocate to the Daytona Beach area.
The Defendant seeks to relocate in order to be close to her family,
Lastly, the Defendant has a past history of allowing the Plaintiff
additional visitation periods. and has never denied the Plaintiff
contact with the subject minor child.
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Realistic, substitute visitation arrangements which will
adequately foster an on-going relationship between the Plaintiff
and the subject minor child are readily available in the present
case. The Defendant is willing to allow the Plaintiff visitation
with the child on any and all school vacation periods. The
Defendant is equally willing to share in the transportation and the
expenses incurred in the child's transfer to ensure the Plaintiff
has the maximum amount of visitational time with the subject minor
child. More specifically. the Defendant proposes that the
Plaintiff be entitled to visitation during the Thanksgiving.
Christmas, and Easter vacations, and be entitled to the entire
summer vacation.
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The Gruber Court agreed with the Court in D'Onofrio which
stressed: "The Court should not insist that the advantages of the
move be sacrificed and the opportunity for a better and more
comfortable lifestyle for the [custodial parent] and children be
forfeited solely to maintain weekly visitation by the [non-
custodial parent] where reasonable alternative visitation is
available and where the advantages of the move are substantial."
Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434. 439-440 (1990)
(quoting D'Onofrio v. D'Onofrio, 144 N.J. Super. 200, _, 365
A.2d 27,30 (1976))
Although it is arguable that the Plaintiff's current
weekly contact with the subject minor child is preferable to an
alternative schedule, it must be balanced with the Defendant's
desire to exercise autonomy over major decisions directly affecting
her life and that of her child. Realistic visitation arrangements
are readily available considering the Defendant's past and present
willingness to make the child available to his father for extended,
uninterrupted periods, and the past conduct of the parties in
cooperating to advance the best interest of their child.
III. CONCLUSION:
For the foregoing reasons, Defendant, Janet Wentzel,
respectfully requests this Honorable Court enter an Order
reaffirming primary physical custody of the subject minor child in
her and granting the Plaintiff liberal periods of partial custody
for the purposes of visitation.
DATE:
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EXHIBIT nAil
26. WARRANTY AS TO EXISTING OBLIGATION
Each party represents that he or she has not heretofore
incurred or contracted any debt or liability or obligation for
which the estate of the other party may be responsible or liable
except as may be provided in this Agreement. Each party agrees to
indemnify or hold the other party harmless from and against any and
all such debts, liabilities or obligations of every kind which may
24. DEPENDENCY EXEMPTIONS FOR INCOME TAX
The parent with whom the child resides primarily shall be
entitled to claim all dependency exemptions for the child for
Federal, state and Local Income Tax purposes and the other parent
will refrain from taking such exemptions on his or her income tax
returns. The parent with whom the child spends the least time,
shall execute and deliver to the other parent any and all forms or
documents necessary for him or her to claim the child as his or her
dependant under Federal,state or Local Law.
25. CUSTODY, PARTIAL CUSTODY AND VISITATION
Subject to further order of any Court of competent
jurisdiction, the parties shall enjoy shared legal and physical
custody of the minor child, Steven Wentzel, they agree that primary
physical custody of the said child, steven Wentzel, shall be with
wife. Husband shall have liberal partial custody rights according
to a schedule to be agreed upon by the parties and which shall be
consistent with the best interest and welfare of the said child. As
a minimum, Husband shall have partial custody according to the
schedule set forth in Schedule "B" attached hereto and made a part
hereof. Husband shall be responsible for any and all transportation
incurred because of the periods of temporary custody. Husband shall
give at least twenty-four (24) hours notice, by telephone or
otherwise, of any request of change in a prearranged and agreed to
schedule of temporary custody.
13
JAMES A. WENTZEL,
Plaintiff
I N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-3522
v.
JANET WENTZEL,
CIVIL ACTION - LAW
IN CUSTODY
Defendant
CERTIFICATE OF SERVICE
I, Kristin R. Reinhold, Esquire, hereby certify that a
true and correct copy of a Defendant's Trial Memorandum was served
upon Mary A. Etter Dissinger, Esquire on September 18, 1995, by
first-class mail, postage pre-paid, addressed as follows:
Mary A. Etter Dissinger, Esquire
28 North Thirty-Second Street
Camp Hill, PA 17011
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DATE:
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Esquire
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JAMES A. WENTZEL, IN THE COURT OF COMMON PLEAS
Plaintift OF CUMBERLAND COUNTY
. OF PENNSYLVANIA
.
; vs. I
Ii . CIVIL ACTION
.
JANET WENTZEL, I NO. 95-3522
Detendant I IN CUSTODY
PRE-HEARING CONPERENCB MEMORANDUM
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"
I . I'ACTUAL BACKGROUND I
The Detendant, Janet Wentzel, and the Plaintitt, James A. :
Wentzel, are the natural parents ot the subject minor child, Steven i
L. Wentzel, born October 17, 1988. The parties separated in
January, 1994, and they were divorced on December 13, 1994.
~y
The parties enjoy shared legal and physical custody by virtue'
ot a Separation and Property Settlement Agreement entered by mutual
agreement ot the parties on September 30, 1994. Under that'
" Agreement, the mother has primary physical custody and the father
;1
has partial custody during specified periods. The father sees the
child every Tuesday and Thursday evening from approximately 5:00
.. p.m. until 8:00 p.m. He is also entitled to one overnight
Ii
visitation period each calendar week, either from Friday evening
i!
., until Saturday, or from Saturday evening until Sunday. In fact,
:1
i the father has sought more participation in their child's life than'
Ii
the Agreement allows, and the mother has agreed to those requets.
This is a result of the parties' strong efforts to cooperate in the
raising of their son. There is no dispute that since the parties'
separation, they have cooperated in keeping the minor child's best
interest first and foremost in their dealings with each other.
I
When the Defendant notified the Plaintiff that she was
considering relocating to Florida, the Plaintiff, in a desire to
remain close to his child, investigated the possibility of
transferring from his corporation to a local office in Florida.
He learned that it would be impossible to transfer within the
company. If he wanted to remain with Blue Shield, it would be
~.. .....-
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necessary for him to terminate his employment here in Pennsylvania,
and apply as a new employee to the Florida office. However, the
Florida oftice is a substantial driving distance, let alone a
substantial driving time from the area to which the Defendant
wishes t~ relocate. There is no probability that the Plaintiff
will be able to relocate to reMain close to his child and remain
employed at the same level he currently enjoys.
The Plaintiff has also considered whether or not it is in the
best interests of steven to uproot him from the geographic area
where he has resided all of his life and made friends. Plaintiff's
family is in Kutztown. During the marriage, the parties regularly
went to visit with Plaintiff's family in Kutztown. The Plaintiff
and the parties' minor child attended the annual family gatherings
and picnics from Memorial Day through and including Labor Day. It
:i
; has been a tradition for the last three years that the Plaintiff
!
takes his son to Kutztown for the Friday evening Halloween parade
i: and then stays overnight with his family. The Plaintiff and the
"
. Defendant took the minor child to the Plaintiff's family every
Thanksgiving. The parties and the minor child of the parties
always visited with the Plaintiff's family between Christmas and
New Year's Day. There are approximately seven or eight children in
the Plaintiff's extended family who are close to the age of the
parties' minor son. If the child is relocated to Florida, he will
miss the contacts that he had with his cousins and his second i
cousins, who are his age.
;1 i
ii The Defendant has only spent a brief period of time in:
II Florida, both times for the purposes of vacation. Vacationing with!
:1
il family members does not give one an appropriate perspective of the
'.
i; employment market or the real cost of living.
!i
One of the reasons Defendant has expressed to Plaintiff for
moving to Florida, is that she believes her sister needs a family
member close to her. Her other reason was that the Defendant needs
2
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a "change of scenery." Defendant's sister moved to Florida three
years ago.
If the Defendant moves to Florida, she will be required to pay
rent to her sister in an amount approximating four hundred ($400)
dollars per month.
The Defendant has not attained employment and has no offers of
employment at the present time and has received none since she
seriously began contemplating this move in June of 1995. While she
toyed with the idea of moving previously thereto, the Plaintiff had
no real expectation that she would undertake a move without gainful
employment. The Defendant believes she can move without the need
to be assured of future employment.
II . wrTNESSESI
Plaintiff James
Joan Haring.
Plaintiff will present two witnesses:
Wentzel will testify as will his sister, Ms.
III. DrscussrONr
It is a time-tested truism that the "best interest of the'
child" is the overriding factor in determining where the child.
resides and with whom and how he spends his tiMe. Under the I
guidelines of Gruber and Krusen, the Plaintiff sees no "potential'
advantage II to the proposed move, "economic or otherwise." There is ,
I
no likelihood that the move would improve substantially the quality.
of the life of the custodial parent, particularly when she will be:
,
unemployed and incurring a rent expense of approximately four
hundred ($400) dollars per month. The experience of the Defendant
in Florida has been very brief at best and her desire to move would
appear to be whimsical. The Plaintiff ascribes no ill motive to
the Defendant in her desire to move. The Plaintiff simply believes
3 I
A. .
that the Defendant is giving more consideration to her perception
of her sister's needs than to her son's real need to be with his
father. If the Defendant truly believes her sister needed a family
member with her, she could ask her sister to move up to
Pennsylvania. The desire to have a change of scenery is not a
basis under Gruber or Krusell to allow relocation of the child.
In all practicality, there can be no substitute visitation
arrangement that would adequately foster the ongoing relationship
the child has with his father. The child spends portions of three
days a week with his father. Even if the Plaintiff is given the
privilege of having his child through the entire summer and through
every school holiday, it will not engender the same kind of.
relationship that he has with the child on a weekly and day-to-day
basis. The child is barely seven years old and to uproot him from
his father, who he sees regularly, cannot be in his best interest.
With the Defendant being unemployed, there is no guarantee that she:
can ensure the child'S transportation to and from Florida, let i
alone convince Plaintiff that there will be a substantial benefit,
to the child in changing residence.
While Gruber and D'Onofrio give lip service to the idea that II
there should be no sacrifice of "opportunity for a better and more
comfortable lifestyle" for the custodial parent, there is no
opportunity for a better and more comfortable lifestyle under the
facts of the present case. If the Defendant is allowed to
relocate, she will be moving to an area where she has not received
any job offers despite her representations that she is seeking
employment, she will be incurring a substantial rent expense, and
she has no true opportunity for a better or more comfortable
lifestyle.
While Defendant's desire to "exercise autonomy over major
decisions directly affecting her life and that of her child'S,. she
has given up that right to autonomously decide the lif. of her
4
! child by virtue of her agreement to give the
.hared leQal and physical custody of the child.
plaintiff herein i
,
IV. CONCLUSION.
The best interests of the child would be served by having him
remain in Pennsy~vania, because the Defendant cannot establish that
a mOve to Florida would improve substantially the quality of life
for her or the child. Her motivation is not to seek a better life
for her.elf or her child. There is no realistic substitute
alternate visitation arrangement that can preserve the relationship
the plaintiff has with his son.
Respectfully submitted,
'-;7Jrac- ~~
Mary A.'Etter D ss nger
Attorney for plaintiff
28 N. 32nd street
camp Hill, PA 17011
ID# 27736
(717) 975-2840
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JAMES A. WENTZEL,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
OF PENNSYLVANIA
CIVIL ACTION
NO. 95-3522
IN CUSTODY
vs.
JANET WENTZEL,
Defendant
i
,
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I
1,:'1' I, Mary A. Etter Dissinger, Esquire, hereby certify that on i
the date set forth below I served a true and correct copy of the!
" foregoing document upon the attorney for the Defendant, by First
il Class United States mail addressed as follows:
'I
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II
I,
CERTII'ICATB 01' SERVICB
Kristin Reinhold, Esquire
SILLIKER , REINHOLD
204 State Street
HarriSburg, PA 17101
Date:
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Mary A. Ett!1{~s~er,
Esquire
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6
JAMES A. WENTZEL,
PLAINTIFF
V.
JANET WENTZEL,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
95-3522 CIVIL TERM
ORDER OF COURT
AND NOW, this 22nd day of August, 1995, the hearing In this custody matter
scheduled for September 27, 1995, at 1:30 p.m. before Judge Oler, Is rescheduled for
Thursday, September 28, 1995, at 8:45 a.m., In courtroomNo.y
By the Co. "
tJ
KrIstin R. Reinhold, Esquire
For Plaintiff
Mary A. Etter Dissinger, Esquire
For Defendant
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JAMES A. WENTZEL,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION. LAW
V.
JANET WENTZEL,
DEFENDANT
95-3522 CIVIL TERM
IN RE: CUSTODY
ORDER OF COURT
AND NOW, this ~~ day of October, 1995. IT IS ORDERED THAT Janet
Wentzel SHALL NOT move Steven Wentzel to Florida.
"
Mary A. Etter Dissinger, Esquire
For Plaintiff
_ ~ ~ /o/3IQs.
A.f.
Kristin R. Reinhold, Esquire
For Defendant
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JAMES A. WENTZEL,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION. LAW
V.
JANET WENTZEL,
DEFENDANT
95-3522 CIVIL TERM
IN RE: CUSTODY
OPINION AND ORDER OF COURT
BAYLEY, J.t October 3, 1995:-
A hearing was conducted on September 28, 1995, on the complaint of James
A. Wentzel seeking an order prohibiting a move of hIs son, Steven, to Daytona Beach,
Florida. The father, age 41 and the mother, Janet Wentzel, age 38, are the parents of
Steven Wentzel, bom October 17, 1988. The parents were married on June 20, 1981.
Neither was previously married, They divorced In December, 1994. The father and
mother live four miles apart In apartments In Mechanlcsburg. Steven is In first grade
at the Sporting Hili Elementary School.
The father Is a staff analyst for Pennsylvania Blue Shield eamlng $46,000 per
year. He was promoted to that position five and a half years ago, and has worked for
the company for seven and a half years. The business of Pennsylvania Blue Shield is
expanding and the father's job Is stable. The mother Is an admissions representative
at a career school, Computer Leaming Network. She secured this position on June
19, 1995, after workIng for two years In a full-time positIon as a coordinator and sales
person for SHS Temps. The mother has a bachelor of arts degree from Robert Morris
College In Pittsburgh, Her current position, which Is In her area of expertise and
which she enjoys, pays $21,400 per year. The father pays the mother $350 per
95-3522 CIVIL TERM
month child support plus two-thirds of the cost of lunches and a latchkey program at
Steven's school.
Steven Is a happy soon to be seven-year-old. His mother and father are both
sensitive, caring and loving, and have been cooperative and very flexible In their
arrangements for Steven to be an Integral part of both of their lives. Steven Is with his
father from after school until 8:30 p.m. each Tuesday and Thursday. The father has
one twenty-four hour period with Steven each weekend. About once every other
month Steven stays with his father for an entire weekend. Occasionally he stays over
on a weekday night. He also accompanies his father on vacation trips. Steven has
adjusted well to the routine. The parents have altered this schedule when special
circumstances have arisen. Both parents agree that the other parent Is a good
parent.
The father has two sisters and a brother whose families live In Kutztown. The
matemal grandmother lives In Pittsburgh, as does a sister and other family members
of the mother. The mother's other sister, Gloria, lives In Daytona Beach, Florida. She
is a customer service representative for Donnelly and Company for whom she has
worked for twenty years. She transferred from Lancaster to Daytona Beach three
years ago. Gloria, age 40, Is single and has offered to have the mother and Steven
live with her. The mother would pay $500 a month rent. Gloria lives In a large,
comfortable, three bedroom, two bath home Just outside of Daytona Beach. The
home Is In a residential area two blocks from the ocean beach. If Steven were to live
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95-3522 CIVIL TERM
there, he would go to the Long Street Elementary School In Daytona Beach, about
five miles away. That school Is comparable to his current school.
The mother has always wanted to move to a warmer climate, which Is not
surprising for someone from PittEburgh. During their marriage the mother and father
talked about making such a move at some point. The opportunity for the mother to
move into her sister's home arose In December, 1994. She has since made two
exploratory trips to Florida. The mother talked to the father about making such a
move, and he said he would consider moving to Florida although he was concerned
about being able to obtain good employment. The father looked Into making such a
move. There Is a Blue Shield facility In Jacksonville, Florida, but that Is stili a couple
hours drive from Daytona Beach. The father cannot transfer his position to that
facility. He would have to resign from Pennsylvania Blue Shield and hope that he
would be able to secure a job there or In another health Insurance organization where
he would be qualified to work. The father does not want to risk resigning from his
current job.! He Is engaged to be married next spring to Linda Strock, age 34. She
hes a flve-year-old son and they plan to live In this area.
The mother does not have a job offer In Florida. She recently sent resumes to
various companies, schools and employment agencies, but has not had any
1. The mother and father moved from Pittsburgh to Lancaster In October,
1985, when he took a job with a company In this area. He was laid off In the spring
of 1986, and was out of work about a year until he secured employment with
Pennsylvania Blue Shield. The parents then moved to the Harrisburg area In 1988.
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95-3522 CIVIL TERM
responses. She feels that with her education and job experience she will not have
difficulty securing a position In her current salary range. The mother testified that she
wants to move to Florida to be with her sister. The home there Is a lot nicer than the
apartment In which she now lives with Steven. The mother has no family In the
Cumberland County area. She feels the move will be beneficial to her and thus
beneficial to Steven. She has offered to help defer the travel costs for Steven to be
with his father during each entire summer, and during other school breaks. She Is
willing to have the father be with Steven anytime he would come to Florida, and he
would be welcome to stay In her home. The mother, however, Is not willing to move
to Florida without Steven under arrangements whereby she would have Steven during
the periods she suggests the father have him If she moves. The mother, In
agreement with the father, did not work outside of the home for the first five years of
Steven's life. She feels that she should remain the primary custodial parent. The
father Is opposed to Steven moving to Florida because he does not want to miss the
dally contact he has with his son. He wants a more meaningful relationship than just
being a vacation father. He has always been involved with Steven, and they have a
strong loving relationship.
The legal principles applicable to a custody case are well-established. The test
Is what Is in the best Interest and welfare of the child. Beers v. Beers, 342 Pa.
Super. 465 (1985). In order for a custodial parent to Justify a relocation of a child, the
Superior Court of Pennsylvania In Gruber v. Gruber, 400 Pa. Super. 174 (1990), has
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95-3522 CIVIL TERM
held that, (1) the move must be likely to signIficantly Improve the quality of life for the
parent and the child; (2) the move must not be motivated simply by a desire to
frustrate the temporary custodIal rights of the non-custodlal parent or to Impede the
development of a healthy relationship between the child and the non-custodlal parent;
and (3) there must be a feasIble substItute temporary physical custody arrangement
to Insure a continuing meaningful relationshIp between the child and the non-
custodial parent. In Plowman v. Plowman, 409 Pa. Super, 143 (1991), the Superior
Court stated:
While the best Interests of the child are more closely allied with
the Interest and quality of life of the custodial parent, Gruber v. Gruber,
400 Pa.Super. 174, 183, 583 A.2d 434, 438 (1990), this factor must be
balanced against an appreciatIon of and sensitIvity to the mutual Interest
of the child and the non-custodial parent in maintaining as healthy and
loving a relationship as possible. rd. As Judge Beck stated In Gruber:
The task of this court Is to sacrifice the non-custodlal parent's
Interest as little as possible In the face of the competing and often
compelling Interest of a custodial parent who seeks a better life In
another geographical location.
rd. In thIs context, we note that while the custodial parent has the right
to make decisions concemlng his or her welfare and welfare of the
minor children, that parent has a responsibility towards the non-custodlal
parent to maIntain the relationship between the minor children and the
non-custodlal parent. This may only be accomplished where the court Is
permItted to decide custody before the minor child Is moved from the
Jurisdiction. In Gruber we developed a three part test to facilitate the
trial court's determinatIon of whether the best Interests of a minor child
are served by moving outsIde of the Jurisdiction with the custodial parent
or remainIng In the JurisdIctIon with the non-custodial parent. We now
decide when those Interests must be balanced. We find that the same
competing Interests found In Gruber mandate that the balancing must
be made before the child Is permitted to move from the jurisdiction, , .
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95-3522 CIVIL TERM
In the case sub Iud Ice, a move to Florida has the possibility of significantly
Improving the quality of life for the mother. She has no family here and will be
reunited with her sister In Florida. The home and setting In Florida would be much
nicer for her than In Mechanlcsburg. Her skills should enable her to secure
employment comparable to where she now works. The mother's desire to move to
Florida Is clearly not motivated Simply by a desire to frustrate the temporary custodial
rights of the father or to Impede the development of a healthy relationship with his
son. While coordinating transportation would require some effort, It would be feasible
for the father to have temporary physical custody of Steven during each entire
summer and during extended school breaks.
These factors however, must be balanced against the mutual Interest of Steven
and his father In maintaining as healthy and loving relatIonship as possible. A move
to Florida would change that relationship. Steven would then have a vacation father.
The mother obviously recognizes that the relationship would change because she Is
not willing to become a vacation mother. While a move to Florida would be nice for
the mother, we do not believe, on balance, that there are comoellina Interests which
would slanlflcantlv Improve the quality of life for Steven, or his mother, that offset the
detriment of Steven losing dally contact with his caring, loving and Involved father.
The mother has good employment In this area, she Is young, she has adequate living
arrangements, and most of her Immediate family live In Pittsburgh. Balancing the
pros and cons of a move to Florida, which would terminate the regular contact Steven
. '
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95-3522 CIVIL TERM
has with his father, does not convince us that there would be significant permanent
Improvement In I:!!.!! life sufficient to warrant the move.' Accordingly, the following
order Is entered.
ORDER OF COURT
AND NOW, this '3vl day of October, 1995, IT IS ORDERED THAT Janet
Wentzel SHALL NOT move Steven Wentzel to Florida.
/~
,By the Court, / / ~ /f
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Edgar B. Bayley, J.
)
Mary A, Etter Dissinger, Esquire
For Plaintiff
Kristin R. Reinhold, Esquire
For Defendant
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2. These cases each rest on their own facts. This court allowed a mother to
move her slx-year-old son to Tennessee In Murray v. Menottl, 34 Cumberland L.J.
113 (1984), aff'd 3n Pa. Super. 636 (1984), a mother to move her three-year-old son
to Wisconsin In L1tham v. Molldrem, (No. 1408 Civil 1991, May 5,1992), and a
mother to move her six and elght-year-old sons to Ohio In Priebe v. Priebe, (No.
1663 Civil 1990, March 26, 1993). Requests were denied for a mother to move her
slx-year-old son to Kansas City In Roof-Neyhart v. Roof, 43 Cumberland L.J. 506
(1994), for a father of six and three-year-old sons to move them to Illinois In Benson-
Kendrick v. Kendrick, (No. 3259 Civil 1993, April 19, 1995), and for a mother to
move her twelve-year-old son to Maine In Weber v. Meredith, (No. 2440 Civil 1985,
August 18, 1995).
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