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Home My WebLink About00-01483 i , . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF PENNA. VICKI L. CLOUSE, Plaintiff NO. 2000-1483 CIVIL TERM . CIVIL ACTION ~ LAW VERSUS ARTHUR J. CLOUSE, JR., IN DIVORCE Defendant DECREE IN DIVORCE . AND NOW, Ort~rJ \'1 2001 ,IT IS ORDERED AND DECREED THAT VICKI L. CLOUSE , PLAINTIFF, AND ARTHUR J. CLOUSE, JR. , DEFENDANT, . ARE DIVORCED FROM THE BONDS OF MATRIMONY. THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE BEEN RAISED OF RECORD IN THIS ACTION FOR WHICH A FINAL ORDER HAS NOT YET BEEN ENTERED; The Marriage Settlement Agreement dated August 28, 2001 and signed by . . the parties is hereby incorporated into this Decree, but not merged. . . ATTE By THE COUR ROTHONOTARY '-- ".. -",^ "." , I - ~ ~" ~- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J. . . . . iili_~&mit..J.~~~~.. ;..~ ~"^"'~"'''''"'.,,,,,'~ -~"'"' ~.~" . ;01' -. ,,~ " " . ",.,.= ~" " .,~ '"ilIrlaI.Iililil~ /,tJ ";)3-01 /tJ ;J' J -Of l. "", _ili "'- ~..,. - Wt~~~4~~ ~71~:Z ~ -$ a1 ~-r ~ MARRIAGE SETTLEMENT AGREEMENT THIS AGREEMENT made this ()j \I-A day of a,p r-ut. ,2001, by and between VICKI L. CLOUSE (hereinafter referred to as "WIFE") and ARTHUR J. CLOUSE, JR. (hereinafter referred to as "HUSBAND"). WITNESSETH: WHEREAS, HUSBAND and WIFE were lawfully married on May 28, 1988, and separated on or about December 19,1999, and WHEREAS, diverse, unhappy differences, disputes and difficulties have arisen between the parties and it is the intention of HUSBAND and WIFE to live separate and apart for the rest of their natural lives, and the parties hereto are desirous of settling fully and finally their respective financial and property rights and obligations as between each other, including, without limitation by specification; the settling of all matters between them relating to the ownership and equitable distribution of real and personal property; the settling of all claims and possible claims by one against the other or against their respective estates and equitable distribution of property and alimony for each party. The parties hereto agree and covenant as follows: . ~ . ''>:' c""--"'"' -oT,.,~ - - ^ -, " "~"'-_'?'-'f~_,I/:~;~':.",'4:~,,--- ,- - , ",M_"'_ ." ," ""<" -<"F.-~~'.D ",'::", ,>;" - I , , 1. The parties intend to maintain separate and permanent domiciles and to live apart from each other, It is the intent and purpose of this Agreement to set forth the respective rights and duties of the parties while they continue to live apart from each other, 2. The parties have attempted to divide their matrimonial property in a manner which conforms to a just and right standard, with due regard to the rights of each party. It is the intent of the parties that such division shall be final and shall forever determine their respective rights. The division of existing marital property is not intended by the parties to constitute in any way a sale or exchange of assets. 3. Further, the parties agree to continue living separately and apart from the other at any place or places that he or she may select as they have heretofore been doing. Neither party shall molest, harass, injure, threaten or interfere with the other party in any matter whatsoever, Each party may carryon and engage in any employment, profession, business or other activity as he or she may deem advisable for his or her sole use and benefit. Neither party shall interfere with the uses, ownership, enjoyment or disposition of any property now owned and not specified herein or property hereafter acquired by the other, 4. The consideration for this contract and agreement is the mutual benefit to be obtained by both of the parties hereto and the covenants and agreements of each of the parties to the other. Page 2 ,.'~ ~;:'" ~"'''o'''L:'''';:;",'" ,,,,,,~""_-_.""_'~ ,',,' ,',-,.,_' 'O~." "'. -.--,,- ~~,,~t:- , ..,"'_,~ >"!-_"',,,,.., ., ,_ ,~~_v , The adequacy of the consideration for all agreements herein contained is stipulated, confessed, and admitted by the parties, and the parties intend to be legally bound hereby, Each party to the Agreement acknowledges and declares that he or she, respectively: (1) is represented by counsel of his or her own choosing (Mark D. Schwartz, Esquire for WIFE, and Charles F. Chenot, III, Esquire, for HUSBAND); (2) is fully and completely informed of the facts relating to the subject matter of this Agreement and of the rights and liabilities of the parties; (3) enters into this Agreement voluntarily after receiving the advice of counsel; (4) has given careful and mature thought to the making of this Agreement; (5) has carefully read each provision of this Agreement; and (6) fully and completely understands each provision of this Agreement, both as to the subject matter and legal effect. This Agreement shall become effective immediately as of the date of execution. 5. It is the purpose and intent of this Agreement to settle forever and completely the interest and obligations of the parties in all property that they own separately, and all property that would qualify as marital property under the Pennsylvania Divorce Code, Title 23, Section 3301(e), and that is referred to in this Agreement as "Marital Property", as between themselves, their heirs and assigns. The parties have attempted to divide their Marital Property in a manner that conforms to a just and fair standard, with due regard to the rights of each Party. The division of existing Marital Property is not intended by the parties to constitute in any way a sale or exchange of Page 3 "-,-,,, ~__, '" ~,",,,,_,,,__'e'C__'~_-"-c-;-';"_. "-,_~~_ _ _''.-_,-,-,''-:'':'I'?'-''-a'-,''" ,'--'.-, ,~,',~ - " _~.-~'f~"<'~ -.- I assets, and the division is being effected without the introduction of outside funds or other property not constituting a part of the marital estate. It is the further purpose of this Agreement to settle forever and completely any obligation under the Pennsylvania Divorce Code relating to spousal support or alimony. 6. Each party represents and warrants that he or she has made a full and fair disclosure to the other of all of his or her property interests of any nature, including any mortgage, pledge, lien, charge, security interest, encumbrance, or restriction to which any property is subject. Each party further represents that he or she has made a full and fair disclosure of all debts and obligations of any nature for which he or she is currently liable or may become liable. Each further represents and warrants that he or she has not made any gifts or transfers for inadequate consideration of Marital Property without the prior consent of the other, Each Party acknowledges that, to the extent desired, he or she has had access to all joint and separate State and Federal Tax Returns filed by or on behalf of either or both Parties during marriage. 7, REAL ESTATE: WIFE agrees to waive and transfer all right, title and interest which she may have in favor of HUSBAND in the following real estate properties: I) The marital residence known and numbered as R.D. #2, Box 360, Landisburg, Pennsylvania as described in deed recorded in the Office of the Recorder of Deeds for Perry County Pennsylvania at Record Book 498, Page 265; and Page 4 ~_'" _ '-" I ,. -"-'~,",'-, ''''h- "1'0'1' , . - ~-"-,.-.~,,~--'- - ~'" '. ..-- -' , - ' , 2) The rental property owned by the parties as described in deed recorded in the Office of the Recorder of Deeds for Perry County, Pennsylvania at Record Book 1381, Page 253, and releases all claims which she may have regarding said real estate. HUSBAND agrees to assume all liability for and hold harmless and indemnify WIFE against the mortgage and home equity loans currently against said properties and agrees to be solely responsible for the payments associated with said mortgages and home equity loans, HUSBAND further agrees to have WIFE's name removed from any mortgages or loans against said properties within sixty (60) days from the date of the execution of this Agreement. HUSBAND agrees to pay WIFE the sum of Thirty-Six Thousand and 00/100 Dollars ($36,000.00) within sixty (60) days of signing this agreement. WIFE agrees to sign a deed upon presentation of the same transfering her interest to HUSBAND within sixty (60) days of signing this agreement. If HUSBAND should fail to make said payment to WIFE any of the above-mentioned properties are to be sold and the proceeds from said sale are to be applied toward the Thirty-Six Thousand and 00/100 Dollars ($36,000.00) owed to WIFE. HUSBAND agrees to transfer, assign and waive all right, title and interest which he may have in favor of WIFE in the following real estate property: 1) The hunting cabin located in Huntingdon County, Pennsylvania and releases all claims which he may have regarding said real estate pursuant to the marriage and pursuant to the Partnership Agreement dated March 11, 1992, WIFE agrees to assume all liability for and hold harmless and indemnify HUSBAND against any loans currently against said property and agrees to be solely responsible for the payments associated with said loans, WIFE further agrees to have HUSBAND's name removed from any mortgages or loans against this property within sixty (60) days from the date of the execution of this Agreement. HUSBAND agrees to sign Page 5 ",', ,~,.-:,.. '."k'._ :.-.~:. ..,,-. ,'. ,~ J." . ~ :?""'~,r"",,, '-'~'~ Ii";,<,,-"C:' ~- ,"."~ . ~'_', '.'r.O-"'~"_' ".,-,< <".~ a deed and/or all other necessary legal documentation upon presentation of the same to transfer his interest in the Partnership and in the cabin to WIFE within sixty (60) days of signing this agreement. 8, SUPPORT: It is the mutual desire of the parties that HUSBAND will not be required to pay further spousal support nor APL to the WIFE. WIFE will not provide any financial support to the HUSBAND, The parties also waive any right they have to receive alimony or alimony pendente lite payments from the other following the entry of the Divorce Decree in this matter. 9. PERSONAL PROPERTY: The parties agree that the personal property has been divided to the satisfaction of both parties:' The WIFE hereby waives all right and title which she may have in any personal property of the HUSBAND currently in his possession. HUSBAND likewise waives any interest which he has in the personal property of the WIFE currently in her possession. Henceforth, each of the parties shall own, have and enjoy independently of any claim or right of the other party, all items of personal property of every kind, nature and description and wherever situated, which are then owned or held by or which may hereafter belong to the HUSBAND or WIFE with full power to the HUSBAND or the WIFE to dispose of same as fully and effectually, in all respects and for all purposes as ifhe or she were unmarried, Each party agrees that neither will incur obligations, liens or liabilities on account of the other and that from the date of this Agreement, neither party shall contract or incur obligations, liens or any liability whatsoever on account of the other, Page 6 "", ~ ~- ":',-, '" ,," 0, ,"", ~._," -.. "~_-_;-'_"- '--.\C -", <C:'-,' - --~- " " 10. AUTOMOBILES: The parties hereby agree that WIFE shall retain any vehicles which are currently in her possession (including the Jeep Cherokee). HUSBAND hereby waives all right, title and interest in the vehicles which are currently in possession of WIFE. WIFE shall hold HUSBANDhannless for any and all liability associated with the use and purchase of any vehicle she may now or in the future own, and shall be solely responsible for all insurance and other financial responsibility associated with said vehicle. The parties hereby agree that HUSBAND shall retain the vehicles which are currently in his possession (including the 1983 Ford truck, 1987 Ford truck, 1980 Ford truck and trailer). WIFE hereby waives all right, title and interest in the vehicles which are currently in possession of HUSBAND, HUSBAND shall hold WIFE hannless for any and all liability associated with the use and purchase of any vehicles he may now or in the future own, and shall be solely responsible for all insurance and other financial responsibility associated with said vehicle, HUSBAND and WIFE agree to transfer title to said vehicles if necessary within thirty (30) days of the signing of this Agreement. 11. MARITAL DEBTS AND BANKRUPTCY: It is further mutually agreed by and between the parties that WIFE shall assume all liability for and pay and indemnify the HUSBAND against all debts incurred by WIFE after the date of separation. WIFE represents and warrants to HUSBAND that since the parties' marital separation she has not contracted or incurred any debt or liability for which HUSBAND or his estate might be responsible and WIFE further represents and warrants to HUSBAND that she will not contract or incur any debt or Page 7 1. ..., ''e'' ".,.__. "";. "'.p_,.i"',.,O,,..c-', " . " ,'.'" ,,:--;:.,,:.:.-, ~";'-:-'."i~-.~J-- -'c___,'c. liability after the execution of this Agreement, for which HUSBAND or his estate might be responsible. WIFE shall indemnify and save HUSBAND harmless from any and all claims or demands made against him by reason of debts or obligations incurred by her. HUSBAND shall assume all liability for and pay and indemnify the WIFE against all debts incurred by HUSBAND after the date of separation. HUSBAND represents and warrants to WIFE that since the parties' marital separation he has not contracted or incurred any debt or liability for which WIFE or her estate might be responsible and HUSBAND further represents and warrants to WIFE that he will not contract or incur any debt or liability after the execution of this Agreement, for which WIFE or her estate might be responsible. HUSBAND shall indemnify and save WIFE harmless from any and all claims or demands made against her by reason of debts or obligations incurred by him. The parties also specifically agree that the payments called for in this Agreement are not intended to be a debt which is affected by a discharge in bankruptcy. They further specifically intend that HUSBAND's obligations under the terms of this Agreement shall not be subject to discharge in bankruptcy because they acknowledge that such are necessary for WIFE to meet her financial obligations and to support and maintain her standard of living. HUSBAND represents that there are no bankruptcy proceedings presently pending in which he is involved. HUSBAND expressly agrees not to file a bankruptcy action prior to the completion of his obligations pursuant to this paragraph, This debt shall not be discharged in a bankruptcy action filed by or on behalf of HUSBAND. If HUSBAND files for bankruptcy, this Agreement shall constitute conclusive evidence of the parties' intent that the obligations of this paragraph are in the nature of maintenance and are not dischargeable under current bankruptcy law or under any amendment thereto. Further, if HUSBAND institutes any action in bankruptcy or any other bankruptcy proceeding is instituted in which WIFE's right to the monthly payments becomes a matter for judicial review, Page 8 ,~ - ---~- ,',~ _.~"__'r. < "i ----c.:-,':~,"~.-''I'' "~"~' c", "-' {","~""'} HUSBAND agrees to consent to any motion filed by WIFE with the bankruptcy courts, wherein she may request that the bankruptcy courts abstain from deciding the dischargeability of this obligation and any other obligations to her hereunder in order to allow the appropriate Court of Common Pleas to rule upon this issue. 12, INSURANCE AND EMPLOYEE BENEFITS: The parties agree that any life insurance policies on the life of HUSBAND or WIFE or any other employee benefits, including but not limited to any retirement, profit sharing or medical benefits of either party, shall be their own. WIFE waives all right, title and claim to HUSBAND's employee benefits, and HUSBAND waives all right, title, and claim to any of WIFE's employee benefits. HUSBAND agrees to take any and all action necessary and to cooperate, within thirty (30) days from the date of this Agreement, in the removal of his name as a beneficiary or owner from any and all pension, profit sharing or other retirement accounts which WIFE may currently possess. Similarly, WIFE agrees to take any and all action necessary and to cooperate, within thirty (30) days from the date of this Agreement, in the removal of her name as a beneficiary or owner from any and all pension, profit sharing or other retirement accounts which HUSBAND may currently possess. 13, BENEFITS AND BANK ACCOUNTS: WIFE agrees to waive all right, title and interest which she may have in the savings or checking or any other bank accounts of the HUSBAND not otherwise provided for herein. HUSBAND agrees to waive all right, title and interest which he may have in the savings or checking or any other bank accounts of WIFE not otherwise provided for herein. HUSBAND agrees to cooperate in closing or removing WIFE's Page 9 "'"'''''' ,'.,..,..,-.-.,'.. ' , , ", u:>",_" '._~ _~~':,_I::''"':..__'';_~ ,". -"' .,,"" , , ,,,,.,",,.-. - ,."'''.~ name from any and all joint accounts held and any financial institution within fifteen (15) days of the execution of this Agreement. Similarly, WIFE agrees to cooperate in closing or removing HUSBAND's name from any and all joint accounts held and any financial institution within fifteen (15) days of the execution of this Agreement. 14. DIVORCE: The parties both agree to cooperate with each other in obtaining a final divorce of the marriage, It is agreed that the parties will execute and file the consents necessary to obtain the divorce, Any party who fails to cooperate with obtaining the Divorce shall pay all the costs and legal fees of the party who is seeking the divorce. 15. BREACH: If either party breaches any provisions of this Agreement, the other party shall have the right, at his or her election, to sue for damages for such breach or seek such other remedies or relief as may be available to him or her, and the party breaching this contract should be responsible for payment oflegal fees and costs incurred by the other in enforcing their rights under this Agreement. 16, ADDITIONAL INSTRUMENTS: Each of the parties shall from time to time, at the request of the other, execute, acknowledge and deliver to the other party any and all further instruments that may be reasonably required to give full force and effect to the provisions of this Agreement. Page 10 '-'---'Y,-',","- '_,",-''r'''" '. "" .~"'~""~ ': -~c"I'"'~---'-':--- " , -''''.' ::'."~,,~_"_,~ '1"""-'< , 17. VOLUNTARY EXECUTION: The provisions of this Agreement and their legal effect have either been fully explained to the parties by their respective counsel, or have been fully reviewed and understood if not represented by counsel, and each party acknowledges that the Agreement is fair and equitable, and that it is being entered into voluntarily, and that it is not the result of any duress or undue influence. The parties agree that unless otherwise specifically provided herein, this Agreement shall continue in full force and effect after such time as a final Decree in Divorce may be entered with respect to the parties. The parties further agree that the terms of this Agreement shall be incorporated into any Divorce Decree which may be entered with respect to them, It is the parties' intent that this Agreement does not merge with the Divorce Decree, but rather shall continue to have independent contractual significance. Each party maintains his or her contractual remedies as well as court ordered remedies as the result of the aforesaid incorporation or as otherwise provided by law or statute, Those remedies shall include, but not be limited to, damages resulting from breach of this Agreement, specific enforcement of this Agreement and remedies pertaining to failure to comply with an order of court or agreement pertaining to equitable distribution, alimony, alimony pendente lite, counsel fees and costs as set forth in the Pennsylvania Divorce Code or other similar statutes now in effect and as amended or hereafter enacted, 18. ENTIRE AGREEMENT: This Agreement contains the entire understanding of the parties and there are no representations, warranties, covenants or undertakings other than those expressly set forth herein. Page 11 '-,' -,~/' ~~ ,-- - _ 'c--;'';-- , '~ - = 'I~ - '-~'- _,__ ,,' ~,"> 'c ~_I' - c-' _ > 19, APPLICABLE LAW: This Agreement shall be construed under the Laws of the Commonwealth of Pennsylvania. 20. PRIOR AGREEMENTS: It is understood and agreed that any and all property settlement agreements which mayor have been executed prior to the date and time of this Agreement are null and void and of no effect. 21. PAYMENT OF COSTS: Each party shall be responsible for their own attorney's fees incurred in the settlement of the divorce and economic issues surrounding this divorce. 22. WAIVER OF CLAIMS AGAINST ESTATES: Except as herein otherwise provided, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she may now have or hereafter acquire, under the present or future laws of any jurisdiction, to share in the property or the estate of the other as a result of the marital relationship, including without limitation, dower, curtesy, statutory allowance, widow's allowance, right to take in intestacy, right to take against the Will of the other, and right to act as administrator or executor of the other's estate, and each will, at the request of the other, execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry into effect this mutual waiver and relinquishment of all such interests, rights and claims. Page 12 '. ,". ~.. ~..,~,,,,5,"'''''~'-::''-''' - . -"< -,--,-;"~'-' - ~--.>-W,'1!'..-'-:i-' - '- " - _,'_"c_ """"_""">1 '.'- IN WITNESS WHEREOF, the parties hereunto have set their hands and seals the day and year first above written. "Z'f) ;[ ):;~~ , {~ VICKI . CL USE (SEAL) (}klk /~ ~~. ~~(SEAL) ARTHUR . CLOUSE, Page 13 '.., !>""~'''' , _', '''~'''_ _ " 3,' "-'-~" "-' ,~'.-,'~ ~'- "--,.",--,,~"~,,~'>!"'tr~~- " ,,-' , ,,,,-~- ,.~,-..,r,_" ". COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF CUMBERLAND PERSONALLY APPEARED BEFORE ME, this~#Jay of~ 2001, a Notary Public, in and for the Commonwealth of Pennsylvania and County of Cumberland, VICKI L. CLOUSE, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within Marriage Settlement Agreement, and acknowledges that she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. COMMONWEALTH OF PENNSYLVANIA Notarial Seal Martha L. Noel, Notary Public Carlisle Boro, eumberland County My Commission Expires Sept. 18. 2003 Member, Pennsylvania Association of Notaries SS: COUNTY OF CUMBERLAND PERSONALLY APPEARED BEFORE ME, this 1'11d day of sfP(tlll~~Ol, a Notary Public, in and for the Commonwealth of Pennsylvania and County of Cumberland, ARTHUR J. CLOUSE, JR., known to me (or satisfactorily proven) to be the person whose name is subscribed to the within Marriage Settlement Agreement, and acknowledges that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. SANDRA K~TARIAL SEAL B~ CAMPBELL, Notary PIIbIlc My eommiss;on E":"Pi';' p~ County s ~,uber 26 2002 Page 14 , ',' -,,"', "cl,' ,m",.",.". '" "'- - _~ - ."L_ ' - , "''C;''.:~>7'l- ",-,""'_":-_;" ". ,. fl,' . ., _ _ ~"_".' '.'_, c., _~,.,', ",., " Ii I Ii I" V Il 1% i,'l' 1" i~; riP,' " w , I~ il v "1 h.., ~ ,~..., ".,,,,.,..,,..~,,,.' ~,"'/' ". !' J",~~"'V'''','''3''d-'".,~ ~., ~ ,~Jmffl'!'_ c; S;:e, _ c-> '.~ C~ , ~" ',' 9 / -, -,,-" C) o '!'J ,........., ,') ~'-l .j '.:;!' t=-, '1 -j :Jl t:J """'" .. VICKI L. CLOUSE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW 2000-1483 CIVIL TERM ARTHUR J. CLOUSE, JR., Defendl\nt IN DIVORCE PRAECIPE TO TRANSMIT RECORD To the Prothonotary: Transmit the record, together with the following information, to the court for entry of a divorce decree: 1. Ground for Divorce: irretrievable breakdown under Section 3301(c) of the Divorce Code. 2. Date andmarmer of service of complaint: A certified copy of the Complaint in Divorce was served upon the defendant, Arthur J. Clouse, Jr., on March 18,2000, by certified, restricted delivery mail, addressed to him at R.D, #2, Box 360, Landisburg, Pennsylvania 17040, with Return Receipt Number Z 013 345 825, 3. Complete either paragraph (a) or (b). (a) Date of execution of the affidavit of consent required by Section 330I(c) of the Divorce Code: by plaintiff: September 29, 200 I; by defendant: September 17, 200 I. (b)(I) Date of execution of the affidavit required by Section 3301(d) of the Divorce Code: (b )(2) Date of filing and service of the plaintiff's affidavit upon the defendant: 4, Related claims pending: NONE. 5. Complete either (a) or (b), (a) Date and manner of service of the Notice of Intention to file Praecipe to Transmit Record, a copy of which is attached: (b) Date plaintiff's Waiver of Notice in Section 3301(c) Divorce was filed with the Prothonotary: October 10,2001. Date defendant's Waiver of Notice in Section Ol(c)~rce was filed with the Prothonotary: October 10, 2001. " ~vlJrvt~ D.SCHNVARTZ,ESQUIRE Attorney for Plaintiff "_,, ",,,,-'dn,_,c_ ,="., ,..",,,,,_,,,,K,_: .. , "";.I-"P-, .' ~ (':) .>;; I"<"~'-' Q1/';~' g;~~c' f2ir- >f- J-:;~2 / ::::,i -7. " " "-r:-."?! .~'"! ,,'"""" ~, '" " !lI\I~.~ !Il!:'!!"l~w, .~~ '.f-' ~. - II!II"IlII ~ . ' ~~, c:> r::, C"') .~~-" '.., .- (::; ";:) '-::, ~Ji - - ~~.l,~ SOCIAL SECURITY INFORMATION SHEET PURSUANT TO 23 Pa.C.S.A. SECTION 4304.1 (a) (3) ALL DIVORCES MUST INCLUDE THE PARTIES SOCIAL SECURITY NUMBER PLEASE FILL IN THE APPROPRIATE INFORMATION AND RETURN TO THE PROTHONOTARY'S OFFICE DATE: October 2, 2001 DOCKET NUMBER: 2000-1483 CIVIL TERM PLAINTIFF~ SS# 192-60-7447 NAME: VICKI L. CLOUSE DEFENDANT~ SS # 211-60-0282 NAME: ARTHUR J. CLOUSE, JR. ""~,,' ~--. , < - -~ VICKI L. CLOUSE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW 2000- 1483 CIVIL TERM ARTHUR J. CLOUSE, JR., Defendant IN DIVORCE NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree in divorce or annulment may be entered against you by the court. A judgment may also be entered against you for any other claim or relief requested in these papers by the plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary, Cumberland County Courthouse, Carlisle, Pennsylvania 17013, IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. 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. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 717-249-3166 1-800-990-9108 '.> , !;<'~"''''1i~'':';''''"''~<'=''\'''~"c~':''''';'7.",'>, "'d"',, "_.C'.",C, ,,,,,=~:,.,,t:'>~;"'1 ,. ., - ""',"', , 'c "''', '"c,"" ". "" '''''0'.', ," ,,' AMERICANS WITH DISABILITIES ACT OF 1990 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 be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. -,,'~t t"o".,-"q.~,,"-,.:._,,-,_.,,_ ~':~?" ,_?)""c-:"f ".-.f":-_~'''_-'- .. "'C.';',':',:",_ ",",'9""'-- ,,<,", ,I ',.' 1"._"'''' .'- ~__.,' '_' ,,'" '?'-o~-'"'_~~__ r~'_.o.__,,,,:,_,,,,,_, '.."~', _". """'C'.' ,.-... ., ~ -_ ~'--I .. ~ VICKI L. CLOUSE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW 2000- 1'/ U CML TERM ARTHUR J. CLOUSE, JR., Defendant IN DIVORCE COMPLAINT IN DIVORCE PURSUANT TO SECTION 3301(c) OF THE DIVORCE CODE NOW comes the plaintiff, Vicki L. Clouse, by her attorney, Mark D. Schwartz, Esquire, and files this complaint in divorce against the defendant, Arthur J. Clouse, Jr., representing as follows: I, The plaintiff is Vicki L. Clouse, an adult individual residing at 3 Clay Road, Carlisle, Cumberland County, Pennsylvania 17013. 2. The defendant is Arthur J. Clouse, Jr" an adult individual residing at R.D. #2, Box 360 Landisburg, Perry County, Pennsylvania 17040. 3. The plaintiff has been a resident of the Commonwealth of Pennsylvania at least six months prior to the filing of this action in divorce. -. ''''"' ""! - - ", ~ ^ ~"., ''''/i''';-~. O~'_._'-c-"~'~ , ",w." ." I" ."'."0; --v.; .-'. ',>,"',"CS1?::'".~ -f".,. c' ~"I::-" /'~.'" ~,. .-.~ '_L_ ,",0..',0,.. ., ..' -~- 4. The plaintiff and the defendant were married on May 28, 1988 In Plainfield, Pennsylvania, and separated on December 19, 1999. 5. There have been no prior actions of divorce or for annulment between the parties. 6. There were no children born to this marriage; 7. Pursuant to the Divorce Code, Section 3301(c), the plaintiff avers as the grounds upon which this action is based that the marriage between the parties is irretrievably broken. 8. The plaintiff avers that she has been advised of the availability of counseling and that said party has the right to request that the court require the parties to participate in counseling. WHEREFORE, the plaintiff demands judgment dissolving the marriage between the two parties. Respectfully submitted, By: mZ~JIT & HUGUES Il ~)~ Mark D. Schwartz, Esquire Attorney for Plaintiff West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Supreme Court I.D. No. 70216 Date: Marchj6#,1999 ..-.,",-- - -~ "-" ?, ."C.: "'';Z:_'''\1:';::S'C''~' _,_ ~-~, "'5_~ -, " "'1" - ;r, _ 1"'.'.: ,~ -_.'i"',c .- . c"- - ,,', , __ _ ..,,,_~, ~<_ ,. I e .,..""..._,,', ' VERIFICATION The foregoing Complaint in Divorce is based upon information which has been gathered by my counsel and me in the preparation of this action. I have read the s1atements made in this Complaint and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. ~nv'- KI . CLOUSE -r-tr Date: March_ID ,2000 (':'< ~ - ,"""-,/,- _^;'''''-'-,.''"____-~-,-,,-'''':'f,_, ~_-:p~~", T', ,,'-,"',- _,-_~ "-~.,_,_,,"""___~,0'_,,_,>I~".. -~ -" _," . "... '" _'~V_ ~, _ " _""'~ "- - w VICKI L. CLOUSE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW 2000- JY V CIVIL TERM ARTHUR J. CLOUSE, JR., Defendant IN DIVORCE PLAINTIFF'S MARRIAGE COUNSELING AFFIDAVIT The plaintiff, being duly sworn according to law, deposes and says: 1, I have been advised of the availability of marriage counseling and understand that I may request that the court require that my spouse and I participate in counseling. 2. I understand that the court maintains a list of marriage counselors in the Prothonotary's Office, which list is available to me upon request. 3, Being so advised, I do not request that the court require that my spouse and I participate in counseling prior to a divorce decree being handed down. I verifY that the statements made in this affidavit are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. ~ Date: March~, 2000 L. CLOUSE ',.. , ~;'."':'.;.',., ,~ ,0"., ";"""F",>,,t","~""':' _','. ". ';;, ''''''''.'''' '-",'__)'-;>:', ^','.o "",,,_., I,,..,~ '" _ -~,,^ ,. ," . , , . - ".~ ~ .. ~", , '" "" -""-'"," ,-~-,.. ."~" " L" ~,,,,-,...l!'q7 ~" , 0 c::> 0 c C'J 'T, S ::r: '.... -uto 1'-- i~p rTlrn ;Xl Z::D ..y"m ZC .1'"" cbQ <P..e 06 -<L... !;2c -0 ::::.l'4"1 _1-..,.., ~O :JI> 0- -.-.0 --0 ~ Om ):>c -"I Z ~ ?o =< \.0 '-< "" "n ~ ',,~.: 1I'F:,c VICKI L. CLOUSE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW 2000-1483 CIVIL TERM ARTHUR J. CLOUSE, JR., Defendant IN DIVORCE AFFIDAVIT OF SERVICE OF COMPLAINT PURSUANT TO PA. R.C.P. RULE NO. 1920.4 (a)(1)(O COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF CUMBERLAND NOW, Marcus A. McKnight, III, Esquire, being duly sworn according to law, does depose and state: 1, That he is a competent adult and attorney for the plaintiff in the captioned action in divorce, 2. That a certified copy of the Complaint in Divorce was served upon the defendant, Arthur J. Clouse, Jr., on March 18, 2000, by certified, restricted delivery mail, addressed to him at R.D. #2, Box 360, Landisburg, Pennsylvania 17040, with Return Receipt Number Z 013 345 825, 3, That the said receipt for certified mail is signed and attached hereto and made a part hereof. I verify that the statements made in this affidavit are false statements herein made are subject to the penalties of unsworn falsification to authorities, e and correct. I understand that Pa . S. Section 4904, relating to D. SCHWARTZ, ESQUIRE Attorney for Plaintiff Date: October 1, 2001 ~ ", ,.,~ " "",>~:,._O~?,>,,,," --'''C'''-;,-'~ ",'/",','1'0"" .~,"~.!."'.c_", - ~,-' ""0;f;.7J'" /--,~<:-I_A ".""_'"t-'_~'V_ '^ -' ".' __,~ "1 - .-. ------~v" t, -'n.' __','''~_ ~'" I also wish to receive the following se'rvices (for an extra fa!?): 1 Z013 345 825 . US Postal Service Receipt for Certified Mail " No Insurance Cove"'l!!' Provided,. Do not use for Intemational Mail See reverse Sentto ARTHUR J. CLOUSE JR. Street & Number R.D. 2 BOX 360 Post' Office, State, & ZIP Code LANDISBURG PA 17040 X $ .~~ \, L10 Poslago Certified Fee X l!PeciaJ,DeIiVOlYF.. 'J.1o \, ~5 . ad oauVery Fee SiRe"'", ReceIPt ~owIng to .... Whom & Date DeliveredX ... Aetum Receipi $wing to Whom, !t Dale,,&Addcessee'sAdlbss 8 TOTAL PosIago & FeesX $ = Postmark or Date E ~ (/) a. 1.,3q _MARK 03~15-00 CLOUSE DIV. COM. I APL PEr. ... SENDER: .. . Complete items 1. and/or 2 for additIonal services. 'I . Complete items 3, 48, and 4b. I ., Print yquf name and address on, the reve, rse of this form so that we can return this -, card t(tyou. - iI Attach thiS form to the front of the mailpiece, or on the back if space does not penni!. , . Write KRetum Recefpt RequestedH on the mailpiece below the article number. . .. The Return Receipfwill show to whom the article was delivered and the date .. delivered, Ii 3. Articie Addressed to: J j J Iii .. IXI eertitied I D Insure1l .r DeOD , Address Rest;icted~ Delive Consult postmaster for fee. 4a. Article Number ARTIIIJR J. CLOUSE. JR. R.D. #2. BOX 360 LANDISBURG PA 17040 . I JIl i .... eslic ~,,' , , ,- \, '~t-~,",o, _, ," -'-'-'~ "-'-" :"'.)'<~J,"~'f-,: "S'-'{-' --'T_' I_~ ~-- .. ,0 --'" ,~-. ;;;, ',-".' ~, , ~~ 'W - =,^,. ..... :~ / y.,,',~, ,- "-'I ,,- .,^","",,,. ":: " ":;-,'" () c c: ~- ~. -0 c:. r. n-, ~:: ~ -/ ~ Z r~- , U) I'C -< ~~ ::;; - ":: L~ ~ =<' ~ 0-" '- ~ 1111l1!'111J111!~~~ VICKI L. CLOUSE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW 2000-1483 CIVIL TERM ARTHUR J. CLOUSE, JR., Defendant IN DIVORCE PLAINTIFF'S AFFIDAVIT OF CONSENT 1. A Complaint in Divorce under Section 330l(c) of the Divorce Code was filed on March 14,2000. 2. The marriage of plaintiff and defendant is irretrievably broken and ninety days have elapsed from the date of the filing of the complaint. 3. I consent to the entry of a fina1 decree in divorce. 4. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if! do not claim them before a divorce is granted. I verifY that the statements made in this affidavit are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa. C. S. Section 4904 relating to unsworn falsification to authorities. Date: September 29th ,2001 w ~~ --~~', -,' -">:,,--:'''C"":r='",_,-''',-,"- ~'-.Y:,"C-- " ':Ot;"!<?7";,::,,,_~",-_ ~'C' '-,"0'- __I,,"-">~~' >,-'~--,..... -.--"" ",,'--' .. . .,...........".. ... ""e,,_ () ~- c ',-,j ,'"I U -:-;:~ ,-::::J r~ ~, .; - nlr~": Z=" .., _--0-1 Zr- I '-, cn ,::":' r-~. .~. , ~e ~'~J ...:~ ., )>,....~, ~. Z'" ('-) --(-', . Pc r~) (,;! l-" Z ~ -'",,': -, ::.u -<; (J) ~< VICKI L. CLOUSE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW 2000-1483 CIVIL TERM ARTHUR J. CLOUSE, JR., Defendant IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REOUEST ENTRY OF A DIVORCE DECREE UNDER SECTION 3301(c) OF THE DIVORCE CODE 1. I consent to the entry of a final Decree of Divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if! do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the Prothonotary. I verifY that the statements made in this affidavit are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date: September 29th , 2001 ( ~. ~./)' () . VIC L. COUSE Plaintiff ,--" " -,- ~"~ _; c' '''','':'_~;:'''.'':\:'::-Z-'c >"_,"'>';_,'7-': - ?0'(:--'~_""'^,7:'('!')'::"":"'",~'-;::,"'~'::-r-r-~~ ':-l;~"~:~-:5'+Y,?,-~:'Y';'- '-", c, , , - -0,'."<"" ~___ ",~">,'"' .. "I " ',.. ""co" -:-< .. '. ".0 .",' ,-,,7,~ "'" ,~,_,~~=c"~"<",,,,,.",,'-- ,~J" .' ""1^~~:""'"_ 0 Cd c: ~~ 0 -0 CCO ;::-) rn ~: ~~-I Z Z ~ :':2':" ['....:;. r:::: c ;" 3> ~"'--. .-"-'-' Z (') )> C r:,,;) -=:', ? '=) t~; -..., :Q .< <D -'" "", _'" ""'T"_,~_, , _, " '.. -~ --,t"'_"l VICKI L. CLOUSE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW 2000-1483 CIVIL TERM ARTHUR J. CLOUSE, JR., Defendant IN DIVORCE DEFENDANT'S AFFIDAVIT OF CONSENT 1. A Complaint in Divorce under Section 330l(c) of the Divorce Code was filed on March 14,2000. 2. The marriage of plaintiff and defendant is irretrievably broken and ninety days have elapsed from the date of the filing of the complaint. 3. I consent to the entry of a final decree in divorce. 4. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if! do not claim them before a divorce is granted. I verifY that the statements made in this affidavit are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa. C. S. Section 4904 relating to unsworn falsification to authorities. Date~ 17 ,2001 d~r1/~~~~~ . .~ ::"--,":'~f"';""~':('<"\":i'-"" "~c".,,,,> 'n''^Yd'-r,~':.'-'f1:- ,'" ,-,_~, '-, -'!'_,,"-'Alf','; "'"", ,-"_~:[,,,;, ---" _c_ -, "i , ' t" ~ c_> ,-~' c;;" ,- ,~"- _ '. "'-,__.,.,,1"'"_.', ~__ ,.,. .,__ _,c__. ~',"" ,., ,__ ,~ .. 'IT ",' ,,0. ~'" () ;: -r](;:; ~~r 1'~i' r"r', <-"_. -0 d-':':c::: ~c' ";'-"'c z =<! -~~ - c; o ~-,-) "'--~ I r",,~ '!._"' ":-" r:"-;: co tD VICKI L. CLOUSE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW 2000-1483 CIVIL TERM ARTHUR J. CLOUSE, JR., Defendant : IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REOUEST ENTRY OF A DIVORCE DECREE UNDER SECTION 3301(c) OF THE DIVORCE CODE 1. I consent to the entry of a final Decree of Divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the Prothonotary. I verifY that the statements made in this affidavit are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa. c.S. Section 4904 relating to unsworn falsification to authorities. Date~,2001 ~ ~'~J*-- ARTHU J. CLOUSE, JR. Defendant ".:i'>--;' ,_co,"~ !",e -" -,,"_,,__,~,_:_ ,;_ ~ ~. -"" ., ,~,',!,' , --, ~,,-, r, <, , "~"""\"'_~"~:'''-- ~~ () I.::") ~__J c: q ~ 0 ::-~"- C) we:_ cpc~ ~--i ""'~." '::.::.-- , 0~~:: l'~ -,,--, r.:::: c "" :'~ - .,-~" --,' ~2 - f,::) . , -" !-"'" Z 0 ~L~ =<' '-..0 -<c ~ 11,,__ ,_, ,J ,. ~ "" . VICKI L. CLOUSE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW 2000-1483 CIVIL TERM ARTHUR J. CLOUSE, JR., Defendant IN DIVORCE DEFENDANT'S MARRIAGE COUNSELING AFFIDAVIT The defendant, being duly sworn according to law, deposes and says: 1. I have been advised of the availability of marriage counseling and understand that I may request that the court require that my spouse and I participate in counseling. 2. I understand that the court maintains a list of marriage counselors in the Prothonotary's Office, which list is available to me upon request. 3. Being so advised, I do not request that the court require that my spouse and I participate in counseling prior to a divorce decree being handed down. I verifY that the statements made in this affidavit are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date~II'2001 ~.L~.~.?:r-. -",,- ; ,~, ~- ,~ ':'c ::','>" ~::"'''_":''__-:',':' :,"w,,,:,,"" ':'>}''\'c) """;'ji':~~~_--;':--:>--c/'''_,_~~_I~?_')V'~: ,,-~~-,~"-c 'Co'"~ ",,' ~ ,-_. .., - ,--~,~~. "-',',"" "~" , -", ..",. '- -~'" " I I i I' I I , I ! Ik. , .... .",,"'~' ,.,. ,~ ' 0,.-"- ,.. _,7',- ....,..,'...'.......".-,,"".',... <.e.'-'-''-- -,,' .,...,',c~~~ o r- -o}~ rnr', , -;7.-" ~-~ 2r-- "(1 T--' '=-< :?~ S:::C) ,- ~2 7':' ::;( , t,-:::; co> .:-> .-, ~, t-"":' ,~, ~ i~.? -:';) OJ .t4J_1JI .., "~~~ VICKI L. CLOUSE, Plaintifti'Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - DIVORCE ARTHUR J. CLOUSE, JR., Defendant/Respondent NO. 00 -1483 CIVIL TERM IN DIVORCE DR# 29,493 PacseS# 085102104 ORDER OF COURT AND NOW, this 17th day of March, 2000, upon consideration ofthe attached Petition for Alimony Pendente Lite and/or cOlmsel fees, it is hereby directed that the parties and their respective counsel appear before R.J. Shaddav.onA"rillI. 2000 at 9:00A. M. for a conference, at 13 N. Hanover St., Carlisle, P A 17013, after which the conference officer may recommend that an Order for Alimony Pendente Lite be entered. YOU are further ordered to bring to the conference: (I) a true copy of your most recent Federallncome Tax Return, including W-2's as filed (2) your pay stubs for the preceding six (6) months (3) the Income and Expense Statement attached to this order, completed as required by Rule 1910.1l@ (4) verification of child care expenses (5) proof of medical coverage which you may have, or may have available to you IF yon fail to appear for the conference or bring the reqnired documents, the Court may issue a warrant for your arrest. BY THE COURT, George E. Hoffer, President Judge Mail copies on 3-17-00 to: Petitioner < Respondent Mark Schwartz, Esquire f.'"}!:OffiW Date of Order: March 17. 2000 YOU HAVE THE RIGHT TO A LAWYER, WHO MAY ATTEND THE CONFERENCE AND REPRESENT YOU. 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 MAY GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LffiERTY AVE. CARLISLE, PENNSYLVANIA 17013 (717) 249-3166 " ,-,.. ," '"-" , ,- ,~ "",,;1 r~, , -.--"-'''''. 0-' _J ~>I ilU_ ~~~~~~ .lJS.liMI OF Fii .tr~::"f,~~~,_f8T OD Ii 'lrj [3!:\ Lj: -; .r..~ -~ ~ ..I '} I ~ I i" ,oV ,IH VICKI L. CLOUSE, Petitioner/Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW ARTHUR J. CLOUSE, JR., RespondentlDefendant 2000- 14l?3 CIVIL TERM IN DIVORCE PETITION FOR ALIMONY PENDENTE LITE AND NOW comes Vicki L. Clouse, petitioner/plaintiff, by and through her attorney, Mark D. Schwartz, and petitions this Honorable Court as follows: 1. The petitioner/plaintiff is Vicki L. Clouse who currently resides at 3 Clay Road, Carlisle, Cumberland County, Pennsylvania 17013. 2. The respondent/defendant herein is Arthur J. Clouse, Jr. who currently resides at R.D. #2, Box 360, Landisburg, Perry County, Pennsylvania 17040. 3. Petitioner/plaintiff and respondent/defendant were married on May 28, 1988 in Plainfield, Cumberland County, Pennsylvania, and separated on December 19, 1999. ':"; ,"~~~,:'O:~5-oc""',,,,, !"=;,~7''''---- ',- . ,- ";;?,'C ~"'''',;<._'- :'"-'<'~,---:'.'ti-'-' _"c,~;<^_r; "'<"",,",,,,1" ,-1'_",,;;_7~_" ","'c " .. " ",.< ,- . '''-~. - ~.-- - 4. Petitioner/plaintiff is without the ability to earn sufficient income to meet her reasonable needs. WHEREFORE, petitioner/plaintiff, Vicki 1. Clouse, respectfully requests that this Honorable Court order alimony pendente lite in all amount equal to the Pennsylvania State Support Guidelines. Respectfully submitted, IRWIN, McKNIGHT & HUGHES ~~~ By: Mark D. Schwartz, Esquire Attorney for PetitionerlPlaintiff ~ Date: March I () ,2000 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Supreme Court I.D. No. 70216 ,'''<, C' ""',c"~n.,,% '.,.c..''''."",>."....,.>"'.'".,,,,.,...',>."',.'''c.,,,, .,..." .c,', .> ....,> ''''''" .. ....' VERIFICATION The foregoing Petition is based upon information which has been gathered by my counsel and me in the preparation of this action. I have read the statements made in this Petition and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. w~ :-(K Date: March { 6 , 2000 ~-;:;'-'.' . .'...,. '.".' ...~."'........"'". . "."'...,-. ""'0'"'''''' '... ." ...... '.... .., ."". ...."..'.......~. ,~-. .' I,," ""~" ,_,C,___'0 ~-, ~ ,. . , - ,-, ,,-, ~- ,.." ",--- " .. .~~ () 0 d c: 0 ... s: :x ~-T\' -0 OJ J;>O OJrn :;0 rnR Z::J) -vm zr;: -l'"' ~~ <:QZ \20 -0 ~:il ~() ~. o~ ~ -0 f;':? ~ )>c: ~ (J1 ! (,;.) , C~,,_'"'.,..,,__;, "'>" ,.,,> ",,~ " VICKI L. CLOUSE, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF v. CIVIL ACTION - LAW ARTHUR J. CLOUSE, DEFENDANT 1483 CIVIL 2000 PLAINTIFF'S BRIEF IN OPPOSITION TO THE DEFENDANT'S APPEAL OF THE AWARD OF ALIMONY PENDENTE LITE In opposition to the appeal of Arthur J. Clouse, Jr. Defendant, of the award of alimony pendente lite, the Plaintiff, Vicki 1. Clouse, by and through her attorneys, Irwin, McKnight & Hughes, put forth the following in support of the award made in her favor by the hearing officer: STATEMENT OF CASE On March 14, 2000, Plaintiff, Vicki 1. Clouse, filed a Complaint in Divorce pursuant to Section 3301 ( c) of the Pennsylvania Divorce Code. Plaintiff wife served Defendant, Arthur J. Clouse, Jr., with the Complaint by certified mail on or about March 18,2000. The parties were married on May 28, 1988, and separated on or about December 19, 1999. There were no children born of the marriage. Subsequent to the filing of the Complaint in Divorce, wife filed a Petition for Alimony Pendente lite ("APL") on or about April 12, 2000, the parties met with hearing office, R.I. Shadday, of Cumberland County Domestic Relations Office. The hearing officer appropriately calculated an alimony pendente lite support obligation pursuant to the support guidelines. Apparently, Defendant Husband filed an appeal to the APL award. Plaintiff's counsel was not provided with a copy of said appeal. Nevertheless, a hearing was scheduled on or about August 18, 2000. At the request of Defendant, this hearing was rescheduled for October 6, 2000. A , i"".""., "'~'""M"H"','",~"''''~''d,''"",~,"""","","",_""",,~""~'"'''''''''' R ...."'-'.,,.. ." ,,,..,..'.,,..,., _......",' ,....,..., P, ' hearing was held before this Honorable Court on October 6, 2000. Due to time constraints concerning the court's calendar, this hearing was continued until October 20, 2000, when testimony and evidence continued and concluded. Upon request of the Plaintiff, this Honorable Court granted the parties the opportunity to file briefs supporting their respective positions. This brief is submitted in support of Plaintiff's position that she is entitled to receive an award of alimony pendente lite in an amount equivalent to the support guidelines. OUESTIONSPRESENTED WHETHER PLAINTIFF WIFE IS ENTITLED TO AN AWARD OF ALIMONY PENDENTE LITE FROM DEFENDANT HUSBAND IN ACCORD WITH THE ESTABLISHED GUIDELINES OF PENNSYLVANIA LAW (PA. R.C.P. SECTION 1910.16-4) AND/OR BASED ON HER ESTABLISHED NEED FOR SAID SUPPORT? SUGGESTED ANSWER: YES. ARGUMENT Traditionally, alimony pendente lite ("APL") has been awarded in order to enable a dependant spouse the ability to adequately prosecute or defend a divorce action. Powers v. Powers, 615 A.2d 459 (pa.Super. 1992). It has been held that the purpose of the APL is to "sustain dependant spouse on an equal basis with the other spouse while he or she maintains or defends a divorce action", Butler v. Butler, 621 A.2d 659 (pa. Super. 1993); to "help the dependant spouse maintain the same standard of living enjoyed while living with the independent spouse." Litmans v. Litmans, 673 A.2d 382, 389 (Pa.Super. 1996), quoting, DeMasi v. DeMasi, 530 A.2d 871, 880 (Pa.Super. 1987), appeal denied, 539 A.2d 811 (Pa. 2 r ,,~ 'I"~,' ,~, ~.- .. '"''':-;'~,^"r ~"~,,,:t,--~.~.? ",:,-<:-.;,:,~: ~\"~''I':.~'~_':'!'''t.~ ::"":' "'__co, ,':'''''' C,-' '-",':~~~,O"",---~..o"I",,7 ,~",c,' ,," ' , , ,~, "1),., " __ __ -"'c;:'T'~'","""'-- ,..-,e ',,,, .' ,"".r '^_ '- ~ :' ,,_~, _ ,'---" , '" ,-'-' ',' _ ^, ,_ '__" "n ; .." " - 0, 1988); and to "prevent one party to the action from being financially disadvantaged. Powers, 615 A.2d at 460-461, citing, Sutliffv. Sutliff, 474 A.2d 599 (Pa.Super. 1984). Prior to the promulgation of the Pennsylvania statutory support guidelines In 1994 (Pa.R.c.P. 1910.1 et. seq.), the courts analyzed the need of the dependent spouse in order to calculate a proper amount of support. Sutliff, supra. In doing so, the courts took into account numerous factors including the income of the respective parties and the status of the litigation. However, subsequent to the promulgation of the support guidelines there is a question as to whether the courts of the Commonwealth must analyze all APL cases on an individual need basis. The instant Plaintiff contends thatthe guideline support amounts are to followed without regard to a specific finding of need because Pa.R.c.P. 1910.16-1 requires the use of the guideline amounts. After calculating the relative factors of income and expenses presented to a hearing officer, if the guidelines indicate that APL should be awarded in a particular amount then the guidelines have indicated that the recipient spouse has a "need" for said amount. In support of her position, Plaintiff relies on the Superior Court decision in Leister v. Leister, 684 A.2d 192 (Pa. Super. 1996). The issue before the court in Leister was whether a spousal support order entered pursuant to a complaint of support filed separately from a divorce action was immediately appealable. Id. at 193. In reaching its decision, the Leister court cited Calibeo v. Calibeo, 663 A.2d 104 (Pa. Super. 1995) which had previously held that a support order set in a divorce action was indistinguishable from an award of alimony pendente lite and was therefore not immediately appealable. In this developing area of the law, the Superior Court recognized that differences which once distinguished spousal support and APL were becoming negligible under current state law. The Leister court analyzed the Calibeo decision as follows: 3 L __ 'e' ~ ~"""""''''''''''''.''.""" "".' ,,'7'," ""'. "C~'''''''''''''''7' __, "h'/-,",' '..'h.,A'>;,,' "d."",""'" '....,.. . .'. ... The court in Calibeo proceeded to refer to recent amendments to the Rules of Civil Procedure, specifically, Rules 1920.3 1 (d) and 1920.76 which provide for the automatic conversion of spousal support to alimony pendente lite upon entry of a divorce decree, if any economic claims remain pending. Pa.R.c.P. Rules 1920.76 and 1920.3l(d), 42 Pa.c.S.A. The court further cited to the amended Rule 1910.16-1(a), Pa.R.c.P., 42 Pa.c.S.A., which required that alimony pendente lite be determined in accordance with the support guidelines. The court concluded that these changes highlight the fact that the "difference between alimony pendente lite and spousal support, no matter if it is part of the divorce action or filed separately, is negligible and now neither is appealable until all claims are resolved." Calibeo v. Calibeo, 443 Pa., Super, at 697-8, 663 A.2d at 185. 684 A.2d at 194. In determining that the differences between spousal support and alimony pendente lite are negligible, the Calibeo and Leister courts cited to Pa.R.c.P. 1920.3l(d) which requires the automatic conversion of an order for spousal support to an order for alimony pendente lite upon entry of a divorce decree where economic claims remain pending. Plaintiff contends that if a "need based" analysis was still required for alimony pendente lite then it would not be appropriate for an automatic conversion from spousal support to alimony pendente lite without evidence that recipient was entitled to receive it. In fact, the explanatory comment to Pa.R.c.P. 1920.31 notes that "[b]ecause of the recent change in Rule 1910.16-1 which states that the amount of alimony pendente lite is determined according to the guidelines, there is little difference between the two." A reasonable interpretation of the Supreme Court's intent in Pa.R.c.P. 1920.31 (d) and the accompanying comment is that the support guidelines have now replaced the "need based" requirements of alimony pendente lite rather than determining need for alimony pendente lite on a case by case basis, the need for or entitlement to alimony pendente lite can be determined by 4 t/w;, , > - "-- -- < '-~', ",,<.~,,;,,%,~:~,_,,~-_ ,"'-1'-t'W~, "/ Nt- <;-~,'t"",1~-'t.,,'7-_', 'Ff'> "!"~;":",-,,,:~co:;r~,,,;,,,_;,~-"~"I-"'-:'d"__'-_ --~<-, ">,_OCT> c '~'_'e'""\_,-',,,,,-,,,_ "__,,"""'-~' _ ~~ _,~,,",,_'" " "," "_,, ,,8_ ~'~_"_'_~__"'< _._'.__< ,,=,"'" _, _ ~'" the support guidelines. In other words, if t.l}e guidelines establish an amount for alimony pendente lite then it can be inferred from said award that the recipient is entitled to the support. It should be noted that Defendant has cited to two common pleas court decisions to support his position that the "need based" requirement survives the promulgation of the support guidelines. Dietch v. Dietch, 87 Berks co.L.J. 210 (1995) and Nemchick v. Nemchick, 53 Somerset 1.J. 260 (1994). Plaintiff notes that this Honorable Court is not bound by the decision of courts of equal jurisdiction. These cases were decided shortly after the enactment of the support guidelines in 1994 and without the benefit of any appellate case law. Additionally, neither case analyzes the impact ofPa.R.c.P. 1920.3 1 (d) and the explanatory comment discussed above. Subsequent to these two common pleas court decisions, the Leister and Calibeo Superior Court decisions were rendered. In the alternative, should this Court hesitate to adopt the position that the support guidelines have supplanted the "need based" analysis. Plaintiff has in fact demonstrated her need and entitlement to the award of alimony pendente lite in the amount as determined by the guidelines. At the hearings held on this matter on October 6 and 20, 2000, Plaintiff presented evidence of her income and expenses. The income of each party was stipulated to at the initial hearing. It was stipulated that the net income/earning capacity of Plaintiff is $1,740.62 per 5 '<"'."", ""O',""c', '",'_ _-C:'/';>;"""';'''"''-''':,,~,1;;-:- -~, F "dO "'""."''{,C_ '-,":-C ~=, j'--,;~" r"Fe, _1,-" ,,"'f,' ,'" ,~,,,c '''h, ' _- ,~," '_~W-"~-,_,~,"""'__~,,,,,,:"'^_"',"_''-''"''''',''"",,,.,..,",_, ~,<__, ",-"," ,,',". ,'_-,'i, month and Defendant husband is $3,,182.20 per month as determined in the April 12, 2000 Order of Court. The Court Order required support in the amount of $576.60 which is 40% of the difference in the parties net income. ($1,441.50 x 40% '= $576.60). With regard to expenses, Plaintiff offered as Exhibit "I" which was admitted into evidence an income and expense statement dated October 2, 2000. This statement showed her monthly expenses totaling $2,191.79 which clearly creates shortfall after payment of expenses. Even with the award of alimony pendente lite her income barely exceeds her estimated expenses. By contrast, Defendant husband net income of $3,182.20 after deduction of alimony pendente lite totals $2,605.60. In Defendant's income and expense statement, Defendant did not take the time to total his monthly expenses. Even assuming the figures are correct, his monthly expenses including the alimony pendente lite payment do not exceed his income.! Plaintiff filed for alimony pendente lite because of her belief that various issues relating to the divorce would be vigorously litigated by Defendant. This appeal is an example of what the Plaintiff can expect to face throughout the divorce litigation. In a situation where Plaintiff is entitled to support under the Pennsylvania Support Guidelines, the Defendant has appealed resulting in a hearing conducted on two separate days and the necessity of formal briefs. As indicated in Defendant's brief, the parties have exchanged asset information and have in fact exchanged proposals for distribution of marital property. In the meantime, Plaintiff has demonstrated a need for alimony pendente lite in order to maintain the litigation, remain on an equal financial footing with Husband and to maintain the same standard of living enjoyed while living with Husband. 1 In this monthly calculation, Plaintiff excluded the $512.32 mortgage expense for the rental property as Defendant testified that he receives $620.00 per month in rent. Additionally, he testified that said mortgage was to be satisfied on or about March of 200 I. 6 >""'W" "., '. ""',.~"'.%'.'W"',",',"",~,.,.", ". .~,~"c-".. .. ,. . " ..'.u. '.',...,'".""',''',.,'...,,.~. .~ ,,".",' ."'" '.'..,",....,,""~..k.. ."" .. ,,'. Defendant has argued that Plaintiff took $6,000.00 in marital funds. The Court will recall Plaintiff's testimony which indicated that a majority of that $6,000.00 was used to pay joint bills and obligations of the parties which were incurred prior to separation. The parties are handling this issue as a matter of equitable distribution. Since only a small portion of this money remains, wife does not have access to a large sum of money to defray legal expenses. Wife presented credible testimony with regard to all expenses listed. Particularly with regard to rent, utilities and food, Wife is living well below normal expenses by residing with her family. The modest cost of assisting with utilities and food at approximately $270.00 per month is all that she pays for living with her parents. Rent, food and utilities on her own would likely cost in excess of $750.00 per month. The monthly rental cost of $130.00 and maintenance of $30.00 relates solely to a cabin which is jointly owned with family members. The $130.00 and $30.00 charges were the same share of expenses that Husband and Wife paid while they were married as they are responsible for 1/3 of all costs associated with the cabin which corresponds directly to their ownership interest. As stated, the Plaintiff's testimony was credible and compelling with regard to her expenses. Defendant questions various other expenses including cell phone, storage, dental work and other miscellaneous expenses. None of these expenses are luxuries and the monthly amounts indicate the Plaintiff is attempting to do all she can to live within her now diminished means. Additionally, Defendant's brief attempts to argue the earning capacity of both Husband and Wife. It is respectfully submitted that these arguments should be discarded as irrelevant in light of the parties' stipulation to their respective incomes and earning capacity. 7 !'.,<.~,,--, ~""--",, -h" '.<c,"-'i'~~,'';'J '--"__''C.,<.~,~',~ ';-"""':"'-"7}"/ ,< ~-"'^"--'~_'_"'~,^,,~ 'I:',."""",^"""~~-,?,,,, '^,,' "V7.,~"C.__, _ . _"'r' ,,,,- '.."~ "'.' -, "~"', " Defendant also suggests that he is willing to finalize the divorce and that it is Wife who is delaying the resolution of this matter. First, there is no testimony of record to support this assertion. Second, as stated, the financial issues regarding equitable distribution remain unresolved. Even if the divorce decree is issued pursuant to consent of the parties, Plaintiff would only agree to Defendant so if the case was bifurcated to preserve the resolution of the financial issues. In such a case, Plaintiff would still be entitled to alimony pendente lite pending final resolution of equitable distribution claims. The Court will recall the testimony of Plaintiff that her bill with her attorney was current as of October 6, 2000. It is respectfully submitted that Plaintiff was able to be current with her attorney fees because of the fact that she has been receiving the alimony pendente lite from husband. Her estimate of$125 a month in attorney fees which is approximately my hourly rate, is understated in consideration of these instant proceedings and the possibility of future court proceedings. The Superior Court in Litman, a case cited by Defendant, held that: In ruling on a claim for alimony pendente lite, the court should consider the following factors: the ability of the other party to pay; the separate estate and income of the petitioning party; and the character, situation, and surroundings of the parties. Orr v. Orr, 315 Pa.Super. 168,461 A.2d 850 (1983). 673 A.2d at 389. In the instant case, the Defendant Husband has the ability to pay with disposable income to spare; the Plaintiff Wife has a legitimate disparity in her income to expense ratio with no separate estate to speak of; and the character, situation and surroundings of the parties warrants an award of alimony pendente lite. 8 I , ,.':V 0'>~:~"'''''.~,,,~_~"-:.0'~!'I'<<'''"c'; ""'~.~ -,- """'-... "J',"~-' .'.".",,~ _ ,x_~ '",',', "1'.< ' ,. ,'" -~ --:'""" ' ,~",." , , ",-'" " Although Plaintiff contends that t.lJ.e "need based" analysis of income and expenses is no longer applicable, she has nevertheless established her entitlement to an award for alimony pendente lite based upon her need and the factors cited above. In the event that this Honorable Court agrees that an award of alimony pendente lite is warranted, the amount of said award should clearly be based upon the support guidelines. In order for the Court to consider a deviation from the guidelines, Defendant must prove a deviation is warranted based upon the factors enumerated in Pa.R.c.P. 1910.16-5. It is respectfully submitted that a deviation based upon this rule has not been proven or even argued by Defendant. The Defendant's brief requests a modification of the award "too reflect the actual limited (ifat all) need of Wife" only in the conclusion section of the brief. While this Court may find that "need" for alimony pendente lite is still a requirement for entitlement to receive such, the amount of said support once "need" has been established is to be determined by the guidelines. 9 .. ,~8."",,, -, ';_~~~"?"'C]7g".;,,,,~ ,"",J-~' 9'''''.';;:,~''~'''''' "~".,,,,-, ',,',,", _",,-,,_ ."' ,,,','I,".~." ,,/., ,=._,' ,- .' '.U' .". ,."..' ~-= .,,~.. ,,~.. , CONCLUSION Based on the foregoing, Plaintiff, Vicki L. Clouse, respectfully requests that this Honorable Court deny the Defendant's, Arthur J. Clouse, Jr., appeal and grant Plaintiff's petition for alimony pendente lite in an amount equal to the support guidelines as determined by the Domestic Relations hearing officer. Respectfully submitted, IGHT & HUGHES Date: November 20, 2000 By: ~ Mark D. Schwartz, Esquire Supreme Court ID # 70216 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendants 10 ~ <'1;"'<0'"_'" -~ ,_., , _' ~::"""'__?'" c;>:., ,;, ~?",:",..,' '0,1"'" o'L' ".;''''~'''''''f ,~.. .. ".,,"" ~-" '-~~',~'C^' ,''9 '''''-''':''.-c-, '--0", 'I'" ,,1'0-"" ,^ ", '"."",,,"~ ,-~- ","",,, _" 01'>,.'" '~'~'" 0 , r_. __,0 __' ""-C' ~,,'___ CERTIFICATE OF SERVICE I the undersigned hereby certifY that on this 20th day of November 2000, a copy of Plaintiffs Brief in Opposition to the Defendant's Appeal of the Award of Alimony Pendente Lite was served by first-class, postage prepaid United States mail in Carlisle, Pennsylvania upon the following: CHARLES F. CHENOT, III, ESQUIRE KATHY A.MORROW,ATTORNEYSATLAW 217 SOUTH CARLISLE STREET P. O. BOX 250 NEW BLOOMFIELD, P A 17068 R~& McKNIGHT '-, ~~ --'_1 ~,~~!~4',r;,-,j~__d',--,,'- -,__".,..._..;t-'-^'~, _,,:~_: .'_""i"'~'_""', ,)~-, '''::~-'-~~'_ :'.,,_[':""-';:_"":0;:'-'"" " ,- - -- ,"",.--, ,,";-~' "."~- ..' o o DR 29,493 VICKI L. CLOUSE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ARTHUR J. CLOUSE, JR.,: Defendant 00-1483 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings were held before the HONORABLE J. WESLEY OLER, JR., J., Cumberland County Courthouse, Carlisle, Pennsylvania, Courtroom Number One, October 6, 2000. APPEARANCES: MARK D. SCHWARTZ, Esquire For the Plaintiff CHARLES CHENOT, III, Esquire For the Defendant i;"~l" - '-1" " ,.0" . ~~'I:" 1 ' ~_""I'"L ",...~ 1 ,~ ~t~"~~ ~ IIIiL ll. ""\IiUIfiWMd"~~~ -"1Il ~.- " ~-lMliiliIlHMIlli F~LE[}"O_CFjCE 0,' ~'''''-''r.-' ''''I')''' RY ','. i i--':: i-';-i__,!~t;\,)l',~ IA 00 DEe -B Pi'l 2: 09 CUM8EHl.AND COIJ~frf PENNSYLVANIA ,~~\ It,' , ""'" o " " , _C ' ~""'" ~:',,- '.-, ',,":, ',",,,, o o XNDEX TO WXTNESSES FOR THE PLAINTIFF PAGE VICKI L. CLOUSE Direct Examination by Mr. Schwartz Examination by the Court Cross-Examination by Mr. Chenot Redirect Examination by MR. Schwartz 8 12 13 25 ARTHUR J. CLOUSE. JR. Direct Examination by Mr. Schwartz 30 * * * * * * * * XNDEX TO EXHXBXTS FOR THE PLAINTIFF IDENTIFIED ADMITTED 1 - Income and Expense Statement 11 11 2 .-, , " 'I', ." o o October 6, 2000 Carlisle, Pennsylvania (Wheruepon, the following proceedings were held at 10:45 a.m.) THE COURT: This is the time and place for a hearing in the case of Clouse versus Clouse. We will let the record indicate that the Plaintiff is present in Court and is represented by Mark D. Schwartz, Esquire. The Defendant is also present -- I am getting confused. Maybe counsel can help me on this. MR. CHENOT: You have the names correct. We are at the wrong tables, I believe. We are the Defendants, they are the Plaintiffs. THE COURT: I don't mind which table you are at. All right. The Defendant is present in Court represented by Charles Chenot, Esquire? MR. CHENOT: Yes. THE COURT: Am I pronouncing your name correctly? MR. CHENOT: Chenot. THE COURT: Okay. And do counsel wish to make brief opening statements outlining what the issues are? MR. CHENOT: MR. SCHWARTZ: MR. CHENOT: I would, Your Honor. I think that with help, Your Honor. Your Honor, the Defendant filed and 3 ,~ ,~" > , -" ~,' '-' ~" , I ,.'-- ~ .~.....~ ~~, o o 1 appeal on this particular case, it's an appeal of APL finding 2 by the hearing officer where the hearing officer used the 3 standard guideline form, and basically came up with a number 4 of, I believe, $576.00 a month, that Mr. Clouse is to pay to 5 Mrs. Clouse. 6 The Defendant's position on this case is 7 essentially one issue, that being Mrs. Clouse does not 8 demonstrate the requisite need for APL in this case; and in 9 this particular case, the Court should not follow the standard 10 calculation. 11 Both the Defendant and the Plaintiff have 12 significant incomes. Miss Clouse lives with her parents. She 13 doesn't have significant expenses, and we would ask the Court 14 to consider not using that standard calculation and consider 15 whether or not she has need as the case law suggests. 16 THE COURT: There was no argument, I gather, that 17 the Plaintiff is not entitled to support? In other words, 18 that there's been some basis for terminating support. 19 MR. CHENOT: I don't believe support was ordered. 20 It's only APL on this particular case, Your Honor. 21 THE COURT: Okay. Mr. Schwartz. 22 MR. SCHWARTZ: Your Honor, Plaintiff's position is 23 that there is no need in this case to deviate from the 24 standard guideline amount, as certainly both parties have 25 expenses, but nothing of unusual need or obligation on the 4 -,ym.. ~ ~, "--""I - v. "~''!'!c _,0 _ o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 part of the Defendant, which wouldn't in any way prevent him from being able to make the payment under the guidelines. And we are prepared to submit income and expense statement on behalf of our client. One thing I would point out to the Court THE COURT: Don't the rules provide that alimony pendente lite is to be computed the same way that support is to be computed? MR. SCHWARTZ: I believe that is correct, Your Honor. There are certain elements, certainly, that you can take into consideration to deviate from the standard guideline amount. We don't feel that evidence will be presented here which would warrant any deviation and that's our position. THE COURT: Mr. Chenot. MR. CHENOT: Yes, to respond to that question, Your Honor, there is case law that supports the Defendant's position in this case, and I would cite specifically Sutliff versus Sutliff and I have copies for the Court, if you wish -- 474 At 2d 579. It's a Superior Court case from 1994. And powers versus Power, which is also Superior Court case, 615 At 2d, 459 from 1992. Both of those cases address whether or not there is that you can deviate from that standard calculation based on whether or not the claiming party shows a need for 5 -., ~, -""<'l",I-f" o~ =_ o o 1 that support. And as I have suggested to the Court, both 2 parties have significant incomes. 3 Mrs. Clouse's income is just slightly less than 4 $30,000.00 a year. Mr. Clouse's is I believe 52,000. His is 5 admittedly more, but neither is in dire straights in this 6 situation. 7 THE COURT: The Plaintiff could have simply filed 8 for support, could she not? Is the fact that this is alimony 9 pendente lite significant? 10 MR. SCHWARTZ: I think it is, Your Honor. I don't 11 know if he is making some type of fault arguments you would 12 make under spousal support situation. 13 I think the purpose for the APL is to put the 14 parties on some type of equal ground or footing so that she 15 can maintain and prosecute the divorce action, which is 16 currently pending. 17 It is a temporary situation which will end when 18 the divorce is over with, and under the guidelines absent any 19 evidence to show we need to deviate from the support. 20 I think there is some need-based analysis, which I 21 would contend based on the amendments, I believe in 1994, to 22 the support law, that there may be some relevancy for your 23 consideration in totality. But certainly she is entitled to 24 support, to the APL. 25 THE COURT: Why did she not file for support 6 ','8'111 c ;'-' --~, - -" >.",,- ,,' n---' ,~, ,~ #iIi$" ,'. ~." o o 1 instead of alimony pendente lite? 2 MR. SCHWARTZ: Well, I mean -- I guess, that was 3 just a decision we made. We filed for the divorce, and then 4 for the APL to avoid the necessity of maybe argument issues 5 over spousal support. 6 THE COURT: Are you conceding that I don't simply 7 go by the guidelines, I also consider whether this money is 8 necessary for her to maintain a support action, I mean, the 9 divorce action? 10 MR. SCHWARTZ: Well, I would concede that that may 11 be a factor that you can consider. I don't feel that the 12 evidence that is going to be presented will warrant a 13 deviation, however. 14 THE COURT: I don't know one way or another about 15 that. Okay. Well, I will assume that I am to weigh this case 16 as if it were, the issue is whether the money is necessary for 17 the Plaintiff to maintain the divorce action. 18 MR. SCHWARTZ: Your Honor, in addition, I think it 19 might help, and counsel can correct me if I state this 20 incorrectly, but I believe we can stipulate to the income 21 levels that were found by the support officer here, and can 22 really just limit this to question of expenses. 23 THE COURT: Of expenses, okay. What are the net 24 incomes of the parties? Are they what were said in the 25 existing order? 7 '1- J" " . 'c", _ '''' "'1 ., ",IT,!, ,~. o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CHENOT: I believe they are, Your Honor. For the Defendant it would be $3,182.28 per month. That's an after-tax income. And for the Plaintiff it's $1,740.62 after taxes. I believe that is what is stated in the order. THE COURT: Okay. Is that your understanding also, Mr. Schwartz? MR. SCHWARTZ: That's correct. THE COURT: That that is what is in the order now? MR. SCHWARTZ: That is in the current order. THE COURT: Okay. All right. I guess this is Plaintiff's request for support or rather alimony pen dente lite, so Mr. Schwartz -- MR. SCHWARTZ: I would like to call to the stand Vicki Clouse. Your Honor, may I approach the witness -- well, may I have this marked as an exhibit? (Whereupon, Plaintiff's Exhibit No, 1 was marked for identification.) Whereupon, VICKI L. CLOUSE, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. SCHWARTZ: Q Could you state your name for the record. I 8 ^ .'----",':--'I~:~' ",-,- --"" - ~- o o 1 A Vicki Lynne Clouse. 2 Q That's L-Y-N-N? 3 A E. There's an E on the end. 4 Q Okay. And .where do you reside, Vicki? 5 A 3 Clay Road, Carlisle. 6 Q And who lives with you at that address? 7 A John and Shirley Sharar, and my younger brother 8 John Sharar, Jr. And what is your relationship to Mrs. -- is it 9 Q 10 Sharar? 11 A 12 Q 13 A 14 Q 15 A Yes, they are my parents. How long have you lived at that address? Since December 19th of 1999. What is your occupation, Vicki? I am a pre-school director for the Cumberland-Perry Association for Retarded Citizens. Q And how long have you held that position? 16 17 18 A I have held the director position for four and a 19 half years. I have been with CPARC for over 14. 20 THE COURT: I think Miss Krietzer may be ready to 21 present evidence in the previous case. So why don't we take 22 that, and then we will get back to this case. You may step 23 down. 24 (Whereupon, a break in this case was taken.) 25 ;~ ~~ """"""""",. ,- '" -. ,,-- ' " ' 9 _ _ O~'" _ _n T 'I'-'__~,' ,,' ,-" , :-1ii'i_ ~", o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. SCHWARTZ: Q Vicki, how long have you been married to the Defendant? A . It would have been 12 years last May 28th. Q So you were married on May 28th of 1988; is that correct? A Yes. Q And do you have any children to the marriage? A No. Q And when were you separated? A We were separated December 19th of 1999. Q And you filed a complaint in divorce; is that correct? A Yes. Q And that was filed on or about May -- March 14th of 2000? A Yes. Q You have had an opportunity to fill out an income and expense statement in preparation for this hearing; is that correct? A Yes. MR. SCHWARTZ: Your Honor, may I approach the witness? THE COURT: All right. We are down to the last 20 minutes of the hearing so -- basically, I just need to know 10 -'1- -,- I, v, -~,-""'':'- ".. ,< . o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 why you feel you can't maintain the divorce action without support. MR. SCHWARTZ: Okay. Do you want her to answer that? THE COURT: You can present that document as information supporting it. BY MR. SCHWARTZ: Q Miss Clouse, that is exhibit 1. Is that the exhibit that you -- the expense statement that you filled out to the A Yes. Q And what does that show as your monthly expenses? A Monthly expenses of $2,191.79. Q And is it true that a lot of those expenses are based on estimates that you made and that those could fluctuate from month to month? A Yes. Q Okay. Now, you've retained me as counsel in this matter; is that correct? A Yes. Q And you are paying for my representation of you in matters of divorce and equitable distribution of marital assets; is that correct? A Yes. Q Do you feel, based upon our -- my representation 11 . , . <" "'1 '-~ , " , c, " ., .. ~~~ ~c-,._ ~,_ , o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 agreement with you, that you would be able to maintain the divorce action to its conclusion if you were not receiving any type of support from the Defendant? A If I was not receiving the support, no, I would not be able to pay for your services. Q And why do you feel that way? A Because of my other expenses that I have to incur. Q Are the other expenses that you listed there greater on a monthly basis than the amount of net income which was decided by the hearing officer in this case? A Yes. MR. SCHWARTZ: Maybe I will stop there for purposes of time. And if I need to come back to the witness, Your Honor, I will. Thank you EXAMINATION ~y THE COURT: Q How much money do you have in the bank? A How much in money do I have in the bank. In my checking account as of October the 2nd I had $235.63 Q What other assets do you own? Do you own a car? A I have a car but I am playing monthly on it. Q How much is it worth? A The value is approximately 9500, and I owe 9,000 on it. Q What other assets do you have? 12 -,,.,.,. "'! """'I'" -'" , ,~ ,"" '.. ~,-,- -" ~. ~ . 7 8 9 10 11 12 13 14. 15 16 17 18 19 20 21 22 23 24 25 !t~,,,, -~-~- , o o 1 2 I have a savings account of 626. Okay. A Q 3 A I have our joint checking and savings. It was in 4 my name, but that money I pulled out of our accounts and paid 5 bills. Right now we have about $800.00 between the two. 6 Q Now, how much, if any, do you owe Mr. Schwartz at this time? A At this time -- I don't know what the fees were for last month, but I am current. Q You are current. A uh-huh. THE COURT: Mr. Chenot. MR. CHENOT: Thank you. CROSS-EXAMINATION BY MR. CHENOT: Q You are currently living with your parents. Correct? A Yes. Q You have listed here expenses for electric, gas, oil, telephone and sewer and water. Is that -- how much of their expenses are you paying in this particular case? A Most of the figures that are listed for utilities are for our cabin that we have, and my husband is also listed right now as an owner within that, and I am assuming all of the payments including the mortgage. 13 " 1 -' _lItl_ '-)llJl!I ", ". <^.'~r o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. So when you are listing $30.00 a month for telephone, is that $30.00 a month for the cabin? A No, that's $30.00 a month for my phone. I have a cell phone that I use for my business. Q Is that a necessary expense for your business? A Yes, it is. Q And is that paid for by Cumberland-Perry A.R.C.? A No, it is not. Q Is that something that they would pay for if you asked? A No. No. I am the director of six different programs, and now that I am outside of the county, instead of my staff calling me, making long distance phone calls, I have that cell phone for them to use. Q Is that an expense you've incurred on your own, though? A Q Yes, it is. You are not required to have that phone? A No, I am not. Q How about as to the water you have $30.00 a month for that as well? A Excuse me? MR. SCHWARTZ: I don't see thaLI'm sorry, that was a 00. I thought those were slash marks. I will withdraw tha L 14 ,^, "I' . ~ ' .- - ,~! -, .-~, . ,- o o 1 BY MR. CHENOT: 2 Q I will go back up to oil. Where is that? 3 A That is for the house where I live now. 4 Q Where you live now? 5 A Uh-huh. 6 Q How much does it cost per month to heat that 7 house? 8 9 10 11 12 13 14 15 16 17 18 19 20 A I don't know. We just have the tank filled every so often, and I contribute so much of it. Q All right. And what percentage are you contributing towards that? A I would say at least 25 percent. Q Okay. How do you determine who pays that oil bill ? A When it comes due, urn, basically my father pays it, and then we give him our share of it, what we consider our share. About 25 percent. My brother and I each help to contribute. Q And is your hot water at that residence heated with oil? 21 A Yes, it is. 22 Q So that would be included within that oil price 23 there? 24 A Yes. 25 Q So what you are suggesting to us is that the 15 I_f'~ ' -~ ~ O'C , ,- o 2 $1300.00? 3 4 5 6 8 9 11 cabin. 12 13 14 15 16 17 18 20 21 22 23 1 oil -- the cost for oil for that residence for a year is about """'7, A I would say so, yes. Q Does your brother also pay for those expenses? A Yes, he does. Q And do you have check stubs to support those to 7 show that you have paid him money? A Yeah, I should, yes. Q As far as gas, do you have -- I am not going to 10 ask that question. You have $10.00 a month electric for the A Yes. Q You say that's for the cabin? A Uh-huh. Q And that's split three ways. Correct? A Yes. Q So how much is it is it $30.00 a month total? A Basically, $30.00 a month. I believe there are 19 some expenses in there for the house for where I live also. Q Okay. A And the cabin is heated by electric. Q How often is somebody in that cabin? A Urn, I would say at least once a month, and then 24 during the months of the end of November, December, a good bit 25 of January, I would say, it's occupied 75 percent of the time. 16 'I' " \' '\.1 ~ . , o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Does that have a wood stove or fireplace? It has a wood stove but it is not connected. Q So the sole source of heat would be electricity? A Yes. Q Who occupies that cabin during those months? A During those months, urn, I am there a little bit of the time, generally about 10 days. My parents are there for about three weeks in December, and then a couple days here and there in January, the end of November. Q Is that cabin rented at all to other people? A No. Q And when your parents are there for that approximately three weeks, do they pay the full expenses of that cabin for that time? A When they are there, yes. If you are talking about groceries and that kind of stuff. Q I am talking electric, hot water and all of those things as well. A We take the electric bill when it comes in once a year. We divide that out among the three parties that own the cabin. Q All right. Even though you are not using it a third of the time? A Exactly. We have the opportunity to use it as much as we want, but we haven't taken advantage of that. 17 I ~o _' ,- , . , ~"~ 'if, ~, , "~,< "_c' o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Q Okay. How many more payments do you have on your automobile? A I believe it's 22, I believe. Q Did you buy that vehicle new? A Yes, we did. When we leased it new. Q You leased it new? A Uh-huh. Q That was correct me if I'm wrong, a 1996 Jeep? A Yes. Q And is your monthly payment 362? I am just trying to clarify that. Is that the actual payment you make to the -- A Yes. Once the lease expired, we then purchased the vehicle, and then from that point the amount has been 362. Q Okay. You have to add $183.00 in repairs per month. What vehicle is that on? 17 A That is for the jeep. 18 Q And you incur monthly fee of $183.00? 19 A Well, just recently I put $1500.00 into repairs. 20 Q Were they necessary? 21 A Yes, they were. 22 Q What was the nature? 23 A It was for a new transfer case for the four-wheel 24 25 drive and two-wheel drive. Q Was it damaged in any way? I 18 , ,,~ ,.,."" -~~-""""":~I' ~,.".,. JiOlI~ ,.cv_,~__ o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, it was. Q How was it damaged? A There was water inside of the transfer case, and it rusted, and the chain busted, and then it just destroyed the transfer case. And if I wouldn't have had it repaired the transmission would have Q Let me back up -- was that involved in an accident or something that was some fault of yours? A It was no fault of mine, no. Q Okay. You have down here your doctor and dentist bill as well. Are those monthly or extraordinary for one month or something like that? A They are going to be expenses that I have currently or I will have here in the very near future. I have to have crown work done, surgery, on Monday for my gum lines. And, urn, I have to have bridges put into my teeth, 10 crowns all together to have done. Q Are any of those things covered by insurance? A Partially. They will pay up to the first thousand dollars. Up to this point they've paid 800. I just paid $300.00 towards my first crown. My dentist said it will probably be $3,000.00 all together to have final crown work finished. Q Do these numbers take into account insurance costs? 19 - , :, -- <:"H-~'-'-' ,-- ". ,- - 0" , ;1 o 6 7 9 10 11 12 14 A 15 Q 16 1999 you 21 22 23 25 A Yes, they do. 1 2 3 4 Q So this is after insurance? A Yes. Q The credit card payments that you have listed 5 here, $100.00 a month? A Dh-huh. Q Is that a -- the credit card that you had when you 8 were still married? A No, this is my own. Q This is since then? A Dh-huh. Q Are there any credit cards that you are paying on 13 currently that you had with Mr. Clouse? No, they are all paid. Mrs. Clouse, when you left back in December of I think you indicated in your direct testimony 17 that you took the money that was in the joint checking account 18 with you. Correct? 19 A Yes, I did. 20 Q How much was that, approximately? A Dm, all together -- I am not sure but about 5500. Q What did you do with that money? A I put it into a checking and savings account 24 separate from the one that I normally use for my own expenses. ~ --".' Q Dh-huh. . "f- 20 , '~_:I-' -. c ~- ,'" <"' - o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A And then I took the bills that we had incurred before I moved out, with exception to one or two, and paid those bills so that we were basically free of debt except for the mortgage on the house, cabin and payment for our car. Q Did you use any of that money to pay attorneys fees? A Yes, I did. Q And have you reimbursed that account for those attorneys fees? A No, I have not. Q How much of that account did you use for attorneys fees? A I believe it was $609.00. Q You have down entertainment, $40.00 a month. What is that for? A Maybe go to the movies, to go to my niece's soccer game and purchase a raffle ticket, those kinds of little things. Q Vacation expenses of $800.00 a year? A Dh-huh. Q Gifts of $800.00 a year. What are those for? A That would be for my hotel stay -- well, motel stay that we had. My sister and I generally take two trips a year. And I have seven weeks of leave time a year to take for vacations. And I just, I estimate how much it would cost for 21 - _ L r'._1 . , ~I_< '1"'" o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 anything along those lines, whether it's food or expenses for gas, that kind of thing. Q And you also have storage rentals of $68.00 a month. A Uh-huh. Q What is that for? A That is for the unit that I am currently renting to keep my stuff that I moved out of the house. Q Are those items that you could keep at your parents'? A No, they are not. They are in the process of remodeling right now, and there is no room to put those items. Q Okay. Backing up a little bit. You have Washington Mutual and bedroom suite written in here. When you left the residence, did you take a bedroom suite with you? A I took the one I had with me since I was a girl. It was something that was passed on from generation to 18 generation. Now it is my niece's. 19 Q Why did you continue to use that bedroom suite? 20 A First of all, it was back in storage. It was the 21 last thing in the room. I would have trouble getting to it 22 moving. And as quickly as what I had to move, I didn't think 23 beforehand to keep it out front. 24 And for about four months, I slept on a single day 25 bed, and I was having back problems. So I needed to get 22 .--, --.--,-, ,f_" -_-,_,1, ~,,..,~ !- ~ ", ' -""^" ' o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 better support for my back. So in the meantime, I went ahead and bought the bedroom suite. Q So you actually have two bedroom suites? A No, I don't. My niece has the other one. Q When did she get it? A She will probably -- it is as I can get to the stuff in the storage, she will have it. Q So that was available to you up until what, before you bought the new suite. Correct? A Yeah. If I would have Q Other than the fact -- THE COURT: Wait. Wait. Wait. This is too confusing for the stenographer. Why don't you let her finish her answer, and then you can finish that question. MR. CHENOT: Yes, Your Honor. THE WITNESS: What was the question again? BY MR. CHENOT: Q I said that suite was available to you A Yes, if I would have kept it out, yes. Q You received a tax refund this year, correct, from the federal government? A No, I have not. Q Well, there is some money available, you just haven't actually gotten the check? A Yes. 23 ~i ",-, "1- --, ';;' "'~ ~" - o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Do you expect to receive one next year as well? I am not sure. Q A Q Have you changed your withholding status with your taxes at all? A With my taxes? No, I have not. Q So the amount of money being withheld from your income it would still be the same percentage which you had when you were still living with Mr. Clouse? A Yes, I didn't change it because I didn't know whether the APL, if I would have to pay taxes or not. Q Okay. You have charitable consideration of $500.00 a year. A Yes. Q Is that an estimate or is that how much you've paid this year? A That will be very close to what I paid this year because before I left, my husband and I had pledged $1,000.00 to the C.r.T. campaign, the building expansion. Q Uh-huh. A And that is coming out of my check every six months at $150.00 each time. So it's $300.00 a year. And then I also have my United Way contributions that I make. Q Okay. Are those -- is the United Way contribution a necessary contribution? A It is not necessary, but the agency that I work 24 "--~'I ~ - - - - , ....,......,...< [ili..,.,.. , , ~ o o 1 for is a United Way agency. 2 Q And how much is that per month? 3 A It's, I think, $8.00 a month. 4 Q Okay. And is this $1,000.00 contribution that you 5 made together with your husband? 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Uh-huh. Q Will that be over at the end of this year? A No, it will not. It will continue until the next year because it was $150.00 every six months starting July of 1999. Q All right. Is that something that you can terminate? Can you call them and say, I can't make this payment, I am in the process of a divorce? A I can do that, but our names have been placed on a plaque of recognition for making that kind of contribution. Q And you are paying that yourself? A Yes, I am. Q Have you asked Mr. Clouse to pay part of that? A No, I have not. MR. CHENOT: I have no further questions, Your Honor. THE COURT: Okay. Mr. Schwartz REDIRECT EXAMINATION BY 11m. SCHWARTZ: Q Vicki, you mentioned some dental work in your 25 : 'I~ T ~- 0lI\!_ '"'~ ,~- , o o 1 2 3 4 expenses and in the testimony here to the. Could you clarify for the Court whether that's work that's done electively or whether it's work that you need to have done. A It's work that I need to have done. I have sleep 5 apnea during the night. I grind my teeth my teeth are a lot 6 smaller than they should be. My dentist informed me in 10 7 years I will probably not have front teeth. So I need to have 8 it done or I will have to have them pulled eventaully and have 9 dentures made. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And to clarify, I believe you testified to an account that had $5500.00 in it at the time that you separated from the Defendant, and that you put those moneys into a separate account from your personal funds; is that correct? A Yes. Q And how much is in that account currently, would you say? A Currently between the checking and savings account that I set aside there are -- just about $800.00. Q And what did you what accounts for the difference there? What type of bills or things are you paying that has brought that account down from $5,500.00 to $800.00? A I paid our credit card bills. I paid sewer bills. I can't tell you right now without having it in front of me. Q Are we talking about general household expenses and obligations that you incurred jointly with the Defendant 26 ,'-r " " '~ '" 1 . ""-.-,<" .N, o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prior to separation? A Yes, most of them are, I would say 98 percent of them are, yes. Q Were you the one who handled the bills and payment of the bills while the two of you were together? A Most of the time, yes. Q And you have been receiving the APL of $576.00 per month; is that correct? A Yes, since I think it was May 12th, yes. Q And do you find that you have any money left over at the end of the month after you pay your expense {DELETE} expenses? Do you have sort of extra money floating around? A No, I do not. MR. SCHWARTZ: No further questions. THE COURT: Okay. Mr. Chenot. RECROSS-EXAMINATION BY MR. CHENOT: Q Would you agree with me the sum of the expenses you paid were things like Wolfgang Chocolates and Pampered Chef items? A Yes. Q And those -- does Mr. Clouse have those items at this time? A No, he does not. Q Were those things that you ended up receiving 27 ;"'1,,:':-'--- "'" ,~. 0.....,. . , o 1 yourself? 2 A Yes, I did, before I moved out, yes. 3 Q But those were things that you paid for after you 4 moved out. Correct? 5 A Yes, because of the time -- they came the end of 6 November, beginning of December, and some of the Pampered Chef 7 arrived after I moved out, and he gave it to me, but the 8 bills, you know, for purchasing those items were before I 9 moved out. 10 And during the first two weeks I was at the cabin 11 of December, the first two weeks of December I was in and out 12 of the cabin until I got back, it was within a couple of days 13 I had moved out, and moving my items and stuff, I finally got 14 back to work. The person I paid for those items for, the 15 Wolfgang especially, was my assistant that I have at work. It 16 was all catalogue orders and so forth, and she gave me a bill 17 for it, and I paid for it. 18 Q 19 A 20 Q 21 A 22 Q 23 your job? 24 A 25 Q Do you, urn, in fact, sell Pampered Chef items? No, I do not. Have you ever sold Pampered Chef? No, I have not. Do you have any other sources of income other than No, I do not. Do you do any notary work? .W!, 'M 28 ~r ~" 'I - ~,.~-_.~' f"">" V o 1 Not any more. I am not sure my commission would A 2 be okay for Cumberland County, but I have not done any. I 3 assume it would be. 4 MR. CHENOT: I have no further questions. 5 THE COURT: Mr. Schwartz? 6 MR. SCHWARTZ: Nothing, Your Honor. 7 THE COURT: What marital assets are in the marital 8 estate? In other words, what is going to be divided actually 9 between the two of you, the over all value? 10 THE WITNESS: The over all value, I would assume 11 is about 80 thousand dollars. 12 THE COURT: Eighteen? 13 THE WITNESS: Eighty. 14 THE COURT: Eighty thousand. 15 And have you had some situation from Mr. Schwartz 16 that he can't continue to represent you because you don't have 17 enough money? THE WITNESS: No, he's not said that. THE COURT: Okay. Anything further? MR. CHENOT: No, sir. THE COURT: You may step down. Thank you. THE WITNESS: Uh-huh. THE COURT: Mr. Schwartz. 18 19 20 21 22 23 24 MR. SCHWARTZ: Your Honor, I don't know what 25 Mr. Chenot intends to present, I would like to ask some 29 -,- "-~~- , - , ' ' "r~ _,~ ___"1'_ " o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questions of his Defendant regarding his expenses in this case. MR. CHENOT: I would call Mr. Clouse to the stand or allow him to call him to the stand. THE COURT: Which would you like? MR. SCHWARTZ: I would like to call him to the stand at this time. THE COURT: Okay. Whereupon, ARTHUR J. CLOUSE, JR., having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. SCHWARTZ: Q State your name for the record, Mr. Clouse. A Arthur James Clouse, Jr. Q And where do you currently reside? A R.R. 2, Box 360, Landi sburg , PA. Q And is that the residence that you resided with vicki while the two of you were together? A Yes. Q What do you do for a living, sir? A I drive truck. Q And who do you work for? A Exel. Q And you make approximately $52,000.00 a year; is 30 'l,!liJ~_ o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that correct? A (NO RESPONSE) Q Before taxes. A Well, that is what I did last year. It varies from year to year. Q You agree that your monthly net income by stipulation of counsel here today is $3,282.20? A Well, that's what they averaged out, but it also varies. Q Um, what type of expenses do you have, sir, to pay on a monthly basis? A As far as home? Q As far as what type of bills do you need to pay. A Well, your basic electric, utilities, phone, road expenses. Q And do you have any idea what your monthly personal expenses are? A Well, not total. I spend roughly about $150.00 a week on the road, average, but it's roughly. Just your normal groceries. Q Are you able to support yourself on $3,182.20 per month? A Yeah. Q Do you have money left over after you pay your expenses each month? 31 "1 j"~~ o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Right now, no. Q So, you are claiming that your expenses are $3,182.00 per month. A Well, what happened, I was off work for about a month with my back and it's not there. Q Okay. My question was, Are your expenses on a monthly basis equal to $3,182.20? A I have no idea what -- I didn't sit down and add it all up. Q So you don't really have any proof or evidence -- A I imagine there is some left over. THE COURT: Wait. Wait. Wait. The stenographer can't take two voices at once. We are down to the last two minutes of the hearing. We will not complete the hearing today. Go ahead, Mr. Schwartz. Start that question again. MR. SCHWARTZ: Okay. BY MR. SCHWARTZ: Q You don't have any any evidence or proof here today of what your monthly expenses are; is that right? A I filled out one of those expense sheets. Q And do you recall what the total monthly expense was that you put on that expense sheet? A I don't think I totalled it there. 32 /"":' iT'1 ",' - !,; -, -"" , ^. , - < . -, -" --'~ '"' o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SCHWARTZ: Counsel, is there a copy of the expense sheet? (Discussion off the record.) BY MR. SCHWARTZ: Q Do you currently have any savings or checking accounts, Mr. Clouse? A No, sir. Q And what are the balances in those accounts? A That's on there also. I get 5 something in savings and 449 in checking. Q The expenses you mentioned with Roadway -- or excuse me -- Exel on the road, 150, are those things that are reimbursed by your employer? A No, that's for meals, showers, etcetera. Q Have you been able to meet your expenses that are listed on this sheet here? A Yeah, up until approximately a month ago, yeah, I was doing all right. Q And that was even with the support payment that was being paid to Vicki; is that correct? A Yeah. It makes it a little tight but do it. Q And you've been able to pay your counsel fees in the divorce action to Mr. Chenot; is that correct? A Urn, no. I am behind right now. THE COURT: It is now 11:30, and I need to adjourn 33 .-~,~ ~ -, ,I ! ~~ o o 1 to handle an adoption hearing. If counsel wishes to wait to 2 see if that hearing concludes before noon, I would be glad to 3 resume until noon. 4 Otherwise, I will order the Domestic Relations 5 Office to relist the case for the continuation of the hearing. 6 It doesn't look to me as if it is going to finish today. 7 MR. SCHWARTZ: I think that might be wise, S Your Honor, to reschedule. 9 THE COURT: Did you want to move for the admission 10 of Plaintiff's Exhibit 1? 11 MR. SCHWARTZ: Yes, I will. 12 THE COURT: You may step down. 13 THE WITNESS: (COMPLIED) 14 THE COURT: Any objection to the admission of 15 Plaintiff's Exhibit l? 16 MR. CHENOT: No objection, Your Honor. 17 THE COURT: All right. Plaintiff's Exhibit 1 is 18 admitted. We will enter this order: AND NOW, this 6th day of 19 October, 2000, upon consideration of the Plaintiff's petition 20 for alimony pendente lite, and of Defendant's appeal from the 21 recommended order dated April 12, 2000, and the hearing having 22 been commenced on this date but not completed, the record 23 shall remain open and the Domestic Relations Office is 24 directed to relist this case for further hearing. 25 It is noted that at the time of adjournment on 34 i"~, , ,..""." '-- "--' '-,-~ -.r; - r. , " o o 1 today's date the plaintiff was presenting her case-in-chief. 2 She had testified and been subjected to cross-examination, and 3 the Defendant was being subjected examination as of 4 cross-examination by Plaintiff's counsel. 5 It is noted further that Plaintiff's Exhibit 1 6 (income and expense statement) had been introduced and 7 admitted. No other exhibits had been identified or admitted. 8 THE COURT: Okay. Thank you. 9 MR. SCHWARTZ: Thank you, Your Honor. 10 MR. CHENOT: Your Honor, if you wish, I will pass 11 copies of these cases forward as well. 12 THE COURT: All right. 13 MR. CHENOT: I have given copies to counsel. 14 THE COURT: Thank you. 15 (Whereupon, court adjourned at 11:33 a.m.) 16 17 18 19 20 21 22 23 24 25 35 rj'I, " '- ~- o~,"' 0",,' ',~'r_ 1" -)~,. 1 2 3 4 5 6 7 o o CERTIFICATE 8 I hereby certify that the proceedings are contained 9 fully and accurately in the notes taken by me on the above 10 cause and that this is a correct transcript of the same. 11 12 13 14 15 16 17 &kJtO;iAl'~ _ o ralne K. Troutman, RPR 18 The foregoing record of the proceedings on the hearing 19 of the within matter is hereby approved and directed to be 20 filed. 21 22 23 D~C.lS I ZOOO Date 24 25 :~ ',--,-: ..'-" 36 1-' ""-~ t ORDER/NOTICE TO WITHHOLD INCOME FOR SUPPORT State Commonwealth of Pennsylvania IlKL '09-148'tOIVII(' Co.lCity/Dist. of CUMBERLAND PACSES 085102104 Date of Order/Notice 01/23/01 DR 29493 Court/Case Number (See Addendum for case summary) o Original Order/Notice o Amended Order/Notice o Terminate Order/Notice ) RE: CLOUSE, ARTHUR J. JR ) Employee/Obligor's Name (Last, First, MI) ) 211-60-0282 ) Employee/Obligor's Social Security Number ) 0784100501 ) Employee/Obligor's Case Identifier ) (See Addendum for plaintiff names associated with cases on attachment) ) Custodial Parent's Name (last, First, MI) ) EmployerlWithholder's Federal EIN Number EXEL LOGISTICS EmployerlWithholder's Name r:;Jj) HUMAN F.ESOURCES EmployerfWithholder's Address 260 SALEM CHURCH RD MEeHANICSBURG PA 17050-2895 See Addendum for dependent names and birth dates associated with cases on attachment. ORDER INFORMA TlON: This is an Order/Notice to Withhold Income for Support based upon an order for support from C1JlVJBERLAND County, Commonwealth of Pennsylvania. By law, you are required to deduct these amounts from the above-named employee's/obligor's income until further notice even if the Order/Notice is not issued by your State. $ 0 . 00 per month in current support $ 0.00 per month in past-due support Arrears 12 weeks or greater? Oyes G9 no $ 0 00 per month in medical support $ 0 00 per month for genetic test costs $ per month in other (specify) for a total of $ 0.00 per month to be forwarded to payee below. You do not have to vary your pay cycle to be in compliance with the support order. If your pay cycle does not match the ordered support payment cycle, use the following to determine how much to withhoid: $ 0 00 per weekly pay period. $ 0 00 per biweekly pay period (every two weeks). $ 0 00 per semimonthly pay period (twice a month). $ 0 00 per monthly pay period. REMITTANCE INFORMATION: You must begin withholding no later than the first pay period occurring ten (10) working days after the date of this Order/Notice. Send payment within seven (7) working days of the paydate/date of withholding. You are entitled to deduct a fee to defray the cost of withholding. Refer to the laws governing the work state of your employee for the the allowable amount. The total withheld amount, and your fee, cannot exceed 55% of the empioyee'sl obligor's aggregate disposable weekiy earnings. For the purpose of the limitation on withholding, the following information is needed (See #9 on pg. 2). If remitting by EFT/EDI, please call Pennsylvania State Collections and Disbursement Unit (SCDU) Employer Customer Service at 1-877-676-9580 for instructions. Make Remittance Payable to: PA SCOU Sellld check to: Pennsylvania SCOU, P.O. Box 69112, Harrisburg, Pa 17106-9112 IN )lODITION, PA YMENTS MUST INCLUDE THE DEFENDANT'S NAME AND THE PACSES MEMBER ID (shown above as the Employee/Obligor's Case Identifier) OR SOCIAL SECURITY NUMBER IN ORDER TO BE PROCESSED. DO NOT SEND CASH BY MAIL. MAILED., "'m., - '\ -'" . . j'/29-0! Date of Order: January 24, 2001 l)? DRO: RJ Shadday xc: defendant BY THE COURT: J1 Service Type M OMB No.: 0970-01 Expiration Date: 12/31100 . Wesley 01&, '~Jrrr! .- ," ADDITIONAL INFORMATION TO EMPLOYERS AND OTHER WITHHOLDERS o If checked you are required to provide a copy of this forin to your employee. 1. Priority: Withholding under this Order/Notice has priority over any other legal process under State law against the same income. Federal tax levies in effect before receipt of this order have priority. If there are Federal tax levies in effect please contact the requesting agency listed below. 2. Combining Payments: You can combine withheld amounts from more than one employee/obligor's income in a single payment to each agency requesting withholding. You must, however, separately identify the portion of the single payment that is attributable to each employee/obligor. 3." - R:epolting tile Pa,.datelDlrte of'Nitl.l.oldil,g. Y Otlllltl&t le.pOlt tl,e pa,.datc/dak. of vvitl.l.old;I'6 YVLell 5ehdil,g tile paylll~lll. Tile -paydate:lJcrte of yyit~llloldillg i:; tile datG 61. vvllid. AI"otl"t vvaS vvitl.l.eld -nOIII tl,~ elllployee/s vvd5e;:o. You must comply with the law of the state of the employee's/obligor's principal place of employment with respect to the time periods within which you must implement the withholding order and forward the support payments. 4.' Employee/Obligor with Multiple Support Holdings: If there is more than one Order/Notice to Withhold Income for Support against this employee/obligor and you are unable to honor all support OrderINotices due to Federal or State withholding limits, you must follow the law of the state of employee's/obligor's principal place of employment. You must honor all Orders/Notices to the greatest extent possible. (See #9 below) 5. Termination Notification: You must promptly notify the Requesting Agency when the employee/obligor is no longer working for you. Please provide the information requested and return a copy of this Order/Notice to the Agency identified below, WITHHOLDER'S 10: 3435100104 EMPLOYEE'S/OBLlGOR'S NAME: EMPLOYEE'S CASE IDENTIFIER: LAST KNOWN HOME ADDRESS: NEW EMPLOYER'S NAME/ADDRESS: CLOUSE, ARTHUR J. JR 0784100501 DATE OF SEPARATION: 6. Lump Sum Payments: You may be required to report and withhold from lump sum payments such as bonuses, commissions, or severance pay, If you have any questions about lump sum payments, contact the person or authority below. 7. Liability: If you fail to withhold income as the Order/Notice directs, you are liable for both the accumulated amount you should have withheld from the employee/obligor's income and other penalties set by Pennsylvania State law. Pennsylvania State law governs unless the obligor is employed in another State, in which case the law of the State in which he or she is employed governs. 8. Anti-discrimination: You are subject to a fine determined under State law for discharging an employee/obligor from employment, refusing to employ, or taking disciplinary action against any employee/obligor because of a support withholding. Pennsylvania State law governs unless the obligor is employed in another State, in which case the law of the State in which he or she is emploYE~d governs. 9.' Withholding Limits: You may not withhold more than the lesser of: 1) the amounts allowed by the Federal Consumer Credit Protection Act (15 U.S.C 91673 (b)l; or 2) the amounts allowed by the State of the employee's/obligor's principal place of employment. The Federal limit applies to the aggregate disposable weekly earnings (ADWE). ADWE is the net income left after making mandatory deductions such as: State, Federal, local taxes; Social Security taxes; and Medicare taxes. 10. 'NOTE: If you or your agent are served with a copy of this order in the state that issued the order, you are to follow the law of the state that issued this order with respect to these items. Requesting Agency: QOMESTIC RELATIONS SECTION E.O. BOX 320 CARLISLE PA 17013 If you or your employee/obligor have any questions, contact WAGE ATTACHMENT UNIT by telephone at (717) 240-6225 or by FAX at (717) 240-6248 or by Internet @ Page 2 of 2 Form EN-028 Worker ID 21005 Service Type M OMB No.: 0970-0154 Expiration Date: 12/31/00 '$i>, ,-"""~ rrl'" -, -~ " " - - ~-" " ADDENDUM Summary of Cases on Attachment DefendaJ1tlObligor: CLOUSE, ARTHUR J. JR PACSES Case Number 085102104 Plaintiff Name VICKI L. CLOUSE Docket Attachment Amount 00-14fiJ CIVIL $ 0.00 Child(,en)'s Name(s): DOB Elii~~~~~~~;~~~~;~;~~~:;~~;~~~;;il:~~~~:ldi;~~;t identified above in any health insurance coverage available through the employee's/obligor's employment. PACSES Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)', Name(s): DaB o If checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. PACSES Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)'s Name(s): DaB B';;~~~~~~~;~~~~;:;:~~i;~~;~~~;~:i;~~~~i;~i;~~ii identified above in any health insurance coverage available through the employee's/obligor's employment. PACSES Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)'s Name(s): DaB d:~~~~~t~~;;d~;;~;~~~i;:~;~~~;~il:~~~~:I~:;~~i identified above in any health insurance coverage available through the employee's/obligor's employment. PACSES Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)', Name(s): DaB '15:;~~:~~;~:;~~~;:;~~~:;~d;~;~;~;r;~:~~il~i;~~:}'...'..."........,..... identified above in any health insurance coverage available through the employee'slobligor's employment. PACSES Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)'s Name(s): DaB Eli;~~:~~~~.;~~~;;:;:~~i;~~;~:~;~i,;~~~~;;~i;:~;.? identified above in any health insurance coverage available through the employee's/obligor's employment SeNice Type M Addendum Form EN-Ol8 Worker ID 21005 OMB No.: 0970-0154 Expiration Date: 12/31/00 [j ,'J;;;'.;ljf,~~.,_. . " - , ,~ II .~ n~ ~,~, - ~ .-",' . " " VICKI L. CLOUSE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW ARTHUR J. CLOUSE, JR., Defendant NO. 00-1483 CIVIL TERM Mark D. Schwartz, Esq. 60 West Pomfret Street Carlisle, PA 17013-3222 Attorney for Plaintiff IN RE: PLAINTIFF'S PETITION FOR ALIMONY PENDENTE LITE BEFORE OLER, J. ORDER OF COURT AND NOW, this \'1 ~ay of January, 2001, upon consideration of Plaintiffs petition for alimony pendente lite, and for the reasons contained in the accompanying opinion, the petition is denied, without prejudice to Plaintiffs right to pursue a claim for spousal support if she deems it appropriate. BY THE COURT i!- e/ O\'\~ Charles chenot, III, Esq. P.O. Box 250 217 S. Carlisle Street New Bloomfield, P A 17068 Attorney for Defendant V1NVfJASNN3d JJNnOa QNVl838V'lfIO t:O:2IJ.d 61 Nvr 10 Al1'.J'O"",TV,.1ill>.1-' 'J.,f-{! JO U\f,J,. " ,,',.l..v....-q~, .....J ~V"I ,,~ G::J-jiJ ~v:,j\,.,-" .;J f.;J . . ,- ,',~- I;' - f ~ VICKI L. CLOUSE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW ARTHUR J. CLOUSE, JR., Defendant NO. 00-1483 CIVIL TERM IN RE: PLAINTIFF'S PETITION FOR ALIMONY PENDENTE LITE BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., January 19,2001. This divorce case was commenced on March 14, 2000. For disposition at this time is Plaintiff wife's petition for alimony pendente lite (APL).l The matter is presented on an appeal by Defendant2 from a recommended order,3 entered following a Domestic Relations Office Conference,4 awarding Plaintiff APL in the amount of$576.00 per month. The basis for Defendant's appeal from the recommended order was that Plaintiffs circumstances did not meet the criteria for an award of APL.5 A de novo hearing on Plaintiffs petition was conducted by the court on October 6, 2000, and October 20, 2000.6 Counsel thereafter submitted briefs in support of their respective positions. Based upon the evidence presented at the hearing, the court is constrained to deny Plaintiffs petition for alimony pendente lite. I Plaintiff's Petition for Alimony Pendente Lite, filed March 14,2000. 2 Defendant's Demand for Hearing, filed April 27, 2000. 3 Order of Court, dated April 12, 2000. 4 See Pa. R.C.P. 1910.11. 5 Defendant's Demand for Hearing, filed April 27, 2000. 6 Notes of Testimony, Hearing, October 6, 2000; Notes of Testimony, Hearing, October 20, 2000 (hereinafter N.T. ---' Hearing, October _,2000). fill"I" ~, '" C"", -"", --'-~.,-'" ' ":r - ,- STATEMENT OF FACTS Plaintiff is Vicki L. Clouse; she resides at 3 Clay Road, Carlisle, Cumberland County, Pennsylvania.7 Defendant is Arthur J. Clouse; he resides at R.R. 2, Box 360, Landisburg, Perry County, Pennsylvania.8 The parties were married on May 28, 1988.9 No children were born of the rnarriage.lO They separated in December of 1999,11 and the present divorce action, filed under Section 330l(c) of the Divorce Code, has been pending since March 14,2000. Plaintiffs petition for alimony pendente lite, which is the subject of this opinion, was filed with the complaint. Plaintiff has been employed by the Cumberland-Perry Association for Retarded Citizens (CP ARC) for fourteen years.12 She has held the position of pre- school director for CP ARC for over four years and is responsible for supervising a number of day-care centers in Perry and Cumberland Counties.13 Her annual salary is approximately $30,000.00.14 Plaintiff holds a bachelor's degree In elementary education, and has previously worked as a substitute teacher. 15 She has also been a notary public.16 Plaintiff resides with her parents and brother in Carlisle, Cumberland County, Pennsylvania, where she contributes to household expenses,I7 She has possession of the parties' Jeep and has assumed responsibility for payrnents and 7 N.T. 9, Hearing, October 6, 2000. 8 N.T. 30, Hearing, October 6, 2000. 9 N.T. 10, Hearing, October 6, 2000. 10 fd. 11 fd. 12 N.T. 9, Hearing, October 6, 2000. 13 N.T. 9, 14, Hearing, October 6, 2000. 14 See Plaintiff's Exhibit 1. 15 NT. 5, Hearing, October 20, 2000. 16 NT 28-29, Hearing, October 6, 2000. 17 N.T. 9,15-16, Hearing, October 6,2000. 2 , -~ , " ,.' ,. ,,,-, ,- - repair expenses relating to it.18 Plaintiff also pays one-third of the mortgage, as well as a portion of the maintenance expenses, on a hunting cabin purchased by the parties and Plaintiff's parents.19 Plaintiff also has expenses in the form of payments on a cellular phone which she purchased for job purposes,20 payments for a storage locker in which some of her personal belongings, including an old bedroom suite, are kept,21 payments on a new bedroom suite,z2 payments for dental surgery and crowns,23 and payments on an individual credit card debt, not including marital obligations.24 Other expenses clairned by Plaintiff include charitable donations, vacation costs, gift expenditures, and entertainment costS?5 Assets in which Plaintiff has a legal interest, but as to which Defendant has been paying expenses, include the marital residence and two rental properties?6 In addition, Plaintiff obtained possession of marital funds in the approximate amount of $5,500.00 at the time the parties separated; some of these funds were used to payoff marital debt, and the rest have been retained and used in part to pay Plaintiff's legal fees?? She is currently up to date on payments to her attomey.28 Defendant has been employed as a truck driver for twelve years, working approximately 60 hours per week.29 His annual wages are around $52,000.00, but 18N.T. 12, 18-19, Hearing, October 6, 2000. 19NT 13, 16-17, Hearing, October 6, 2000. 'oN.T. 14, Hearing, October 6,2000. 21 NT 22-23, Hearing, October 6, 2000. 22Id. 23 N.T. 19-20,25-26, Hearing, October 6, 2000. 24 N.T. 20, Hearing, October 6, 2000. 25 NT. 21-22, 24-25, Hearing, October 6, 2000. 26 N.T. 15-16, Hearing, October 20,2000. 27 N.T. 20-21, 26-27, Hearing, October 6,2000. 28 NT 13, Hearing, October 6,2000. 29 N.T. 30, Hearing, October 6, 2000; NT 4-5, Hearing, October 20, 2000. 3 '" ~~ ,'~ -, . , - "-, ~ ~, -" I: may vary due to fluctuations in overtime and periods of medical 1eave.30 Defendant has been experiencing back pain which has forced him to take medical absences from his job on several occasions.3l He is a high school graduate.32 Defendant resides in the marital home in Landisburg, Perry County, Pennsylvania, and pays the mortgage on that residence and on two mobile homes which the parties purchased for use as rental properties.33 Although Defendant receives some income from the rental properties, he has also been expending money for repairs to one of the properties.34 He is in possession of three pickup trucks, in varying states of repair on which no payments are owing.35 He is currently in arrears on payments to his attorney.36 Plaintiff has not filed an affidavit of consent in the present divorce action. Defendant has indicated his willingness to file an affidavit of consent immediately and to proceed with the divorce.3? DISCUSSION Statement aflaw. The determination of whether to award alimony pendente lite has traditionally been a matter within the sound discretion of the trial court. Litmans v. Litmans, 449 Pa. Super. 209, 222, 673 A.2d 382, 388 (1996) (citing Murphy v. Murphy, 410 Pa. Super. 146, appeal denied, 530 Pa. 633, 606 A.2d 902 (1992), cert. denied, 506 U.S. 868, 113 S. Ct. 196, 121 L. Ed. 2d 139 (1992)). APL is based on the need of one spouse to have the financial resources to pursue or defend a divorce action. Litmans, 449 Pa. Super. at 222, 673 A.2d at 388. The 30 N.T. 30-31, Hearing, October 20, 2000. 31 N.T. 7-8, Hearing, October 20, 2000. 32 NT 4, Hearing, October 20, 2000. 33 NT 30, Hearing, October 6, 2000; NT 10-11, Hearing, October 20, 2000. 34 N.T. 10-11, Hearing, October 20, 2000. 35 NT 13-14, Hearing, October 20, 2000. 36 N.T. 33, Hearing, October 6, 2000; N.T. 16-17, Hearing, October 20, 2000. 37 NT. 12, Hearing, October 20, 2000. 4 o_,~~ , ,,- ?, r-~ ~,-~~ . claimant must show that APL is needed to adequately preserve his or her rights in the litigation. Sutliffv. Sutliff, 326 Pa. Super. 496, 500, 474 A.2d 599, 600 (1984), overruled on other grounds, Rosen v. Rosen, 520 Pa. 19, 549 A.2d 561 (1988). In this regard, the Pennsylvania Superior Court has stated that "a spouse seeking alimony pendente lite who has sufficient assets to meet the needs of the pending litigation and who is equally situated with the other spouse to maintain or defend the action, will not be awarded alimony pendente lite." Powers v. Powers, 419 Pa. Super. 464, 467, 615 A.2d 459,460 (1992). In adjudicating a claim for alimony pendente lite, a court should consider the following factors: the ability of the other party to pay; the separate estate and incorne of the petitioning party; and the character, situation, and surroundings of the parties. Litmans, 449 Pa. Super. at 224, 673 A.2d at 389. Historically, the mere fact that one party earns less than the other has not automatically entitled hirn or her to APL. Sutliff, 326 Pa. Super. at 500, 474 A.2d at 600. Additionally, a plaintiff "[ s ]hould not be allowed to withhold [his or] her consent to the divorce while simultaneously seeking alimony pendente lite." Hoffman v. Hoffman, 350 Pa. Super. 280, 283-84, 504 A.2d 356,358 (1986). In 1989, Pennsylvania adopted Rule of Civil Procedure 1910.16-1, providing that the support guidelines were to be used in determining the amount of alimony pendente lite to be awarded. In addition, Rule 1910.1 provides that "the rules of this chapter govern all civil actions or proceedings brought in the court of common pleas to enforce a duty of support, or an obligation to pay alimony pendente lite." Based upon this principle, Plaintiff herein argues that, where an application of the guidelines to the parties' net incomes would yield a sum owing to a claimant for APL, an award should be made without regard to an initial determination of entitlement in accordance with the traditional prerequisites for 5 1--' " , 'T,-> ,,- --~ ~ ,~ . :o'E" ,. -',;'- APL.38 Perhaps implicit within the argument is the proposition that such entitlement is conclusively presumed by the calculation. However, the 1994 comment to Rule 1910.1 states that "[n]othing in this rule should be interpreted to eliminate the distinctions between spousal support and alimony pendente lite which are established by case law." Instead, as the Honorable Edgar B. Bayley of this court has observed, [w]hat has been erased regarding the distinction between spousal support and alimony pendente lite is the way that the amount of an alimony pendente lite award is calculated, not the distinct concepts that underlie those causes of action.... [IJf an award of alimony pendente lite is warranted in a pending divorce case, the method of calculating the award is pursuant to the Pennsylvania support guidelines which are the same guidelines used for calculating spousal support. Little v. Little, 47 Cumberland L.J. 131, 134 (1998). Thus, notwithstanding the equivalency of spousal support and APL for purposes of computation under the rules of civil procedure, a determination of entitlement in accordance with the traditional test remains a prerequisite to an award of APL. See Nemchick v. Nemchick, 53 Somerset L.J. 260 (1995); Dietch v. Dietch, 87 Berks L.J. 210 (1995). Application of law to facts. In the present case, a number of factors have led the court to conclude that Plaintiff has not shown an entitlement to alimony pendente lite in the traditional sense. These include her superior education relative to Defendant's, her present income and apparent security of employment, her ability to remain current on legal expenses related to the litigation, the availability of marital assets to ultimately cover expenses in the action, Defendant's continuing payment of various marital obligations, Defendant's physical problems which have affected his earning capacity, and Defendant's inability to pay his own 38 Plaintiff's Brief in Opposition to the Defendant's Appeal of the A ward of Alimony Pendente Lite, at 4-5, dated November 20, 2000. 6 I,' expenses in the litigation (which was initiated by Plaintiff and which Defendant desires to conclude). For these reasons, the following order will be entered: ORDER OF COURT AND NOW, this 19th day of January, 2001, upon consideration of Plaintiffs petition for alimony pendente lite, and for the reasons contained in the accompanying opinion, the petition is denied, without prejudice to Plaintiffs right to pursue a claim for spousal support if she deems it appropriate. BY THE COURT, /s/J. Weslev Oler. Jr. J. Wesley 01er, Jr., J. Mark D. Schwartz, Esq. 60 West Pomfret Street Carlisle, P A 17013-3222 Attorney for Plaintiff Charles chenot, III, Esq. P.O. Box 250 217 S. Carlisle Street New Bloornfield, P A 17068 Attorney for Defendant 7 j",~ - , '""',-' ,- 'C__ r~ '