HomeMy WebLinkAbout00-03301
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WILLIAM B. MAURER,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
Petitioner,
. NO:;X(fij-z) - 0301
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v.
. CIVIL ACTION - LAW
LINDA MAURER,
: IN DIVORCE
Respondent.
ORDER
AND NOW, this '1--r:A day of ~ _ ,2000, upon Petition of
WILLIAM B. MAURER, the Petitioner herein, a Rule is issued upon the
Respondent, LINDA MAURER, to show cause why, if any, the relief requested
herein should not be granted.
RULE RETURNABLE the ;J.&--tA day of 91 q ,2000, at
>..,', ~c) 11
ol. o'clock f.m. in Courtroom No.~ of the Cumberland County
Courthouse, One Courthouse Square, Carlisle, Cumberland County, Pennsylvania.
BY THE COURT:
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CUMBEfll-'\i\iD COUN1Y
PENNSYLVANIA
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WILLIAM B. MAURER,
Petitioner,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: "'AI n "" IJ--
: NO: bV_3':7v ~
Y.
: CIVIL ACTION - LAW
LINDA MAURER,
: IN DIVORCE
Respondent.
PETITION TO ENFORCE
PROPERTY SETTLEMENT AGREEMENT
AND NOW, comes your Petitioner, William B. Maurer, by and through his
attorneys, Mancke, Wagner, Hershey & Tully, and files the following Petition To
Enforce Property Settlement Agreement:
1. Your Petitioner, William A. Maurer, is an adult individual having as an
address 324 South Lawrence Street, Middletown, Dauphin County, Pennsylvania.
2. The Respondent, Linda Maurer, is an adult individual having as an
address 12 South Meals Drive, Carlisle, Cumberland County, Pennsylvania.
3. The parties entered into a comprehensive Divorce Settlement Agreement
dated January 22, 1999, at which time the parties were residing in Enola,
Cumberland County, Pennsylvania.
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4. Pursuant to the provisions of the Agreement, Husband and Wife agreed
that they would equally be responsible for certain debts that had been incurred
during the course of the marriage, specifically, a First USA Visa; a Pennsylvania
State Employee Credit Union debt; and the mortgage on the marital home.
5. A copy of the Divorce Settlement Agreement is attached hereto,
incorporated herein by reference and marked as Exhibit A.
6. Respondent, from the time the Agreement was entered into, up through
and including August of 1999, made the appropriate payments on the Visa, the
PSECU and the mortgage, however, as of August of 1999, she refused to abide by
the tenus of the Agreement entered into by and between the parties.
7. Specifically, the Agreement provides in pertinent parts that the parties
would be equally responsible for all debts, including the mortgage.
8. The approximate debt as of January of 1999 on the Visa was $11,262.58;
on the PSECU account, $8,623.15; and the total amount of the mortgage that was
due from the Respondent was $1,402.67.
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9. Respondent has failed to and continues to fail to make the payments on
the First USA Visa and the PSECU account; and the mortgage has since been
extinguished by the sale of the home.
10. Petitioner believes and therefore avers that he is entitled to the sum of
two thousand five hundred twenty-nine and forty-eight one-hundredths
($2,529.48) dollars representing Wife's contributions from August 13, 1999, until
April 28, 2000, that should have been paid by Wife, but was not; Husband
believes and therefore avers that payments from this point forward will not be paid
by Wife, and therefore, Husband seeks reimbursement and enforcement of the
same.
II. Petitioner believes and therefore avers that he is entitled to
reimbursement from Wife oftwo thousand five hundred twenty-nine and forty-
eight one-hundredths ($2,529.48) dollars, plus fifty (50%) percent of the balance
on the First USA Visa and fifty (50%) percent of the balance due on the PSECU
account.
12. Petitioner seeks enforcement of the Divorce Settlement Agreement and
has expended the sum to date for the preparation of this Petition and attendance at
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a hearing of five hundred ($500.00) dollars for which he seeks reimbursement
from the Respondent herein.
WHEREFORE, Petitioner prays this Court to grant the relief as requested.
Respectfully submitted,
Mancke, Wagner, Hershey & Tully
P. . ard
I. 3
2233 North Front Street
Harrisburg, P A 17110
(717) 234-7051
Attorneys for Petitioner
Date: 6/11/ ~ ()
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VERIFICATION
I verify that the statemBnts made in the foregoing
document are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S.
Section 4904, relating to unsworn falsification to authorities.
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DATE:
I1rr :{ 2060
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IN THE COURT OF COMMON PLEAS OF THE 59TH JUDICIAL DISTRICT OF PENNSYLVANIA
COUNTY BRANCH - CAMERON
WILLIAM B MAURER
Plaintiff
)
)
) CIVIL ACTION - LAW
)
) CASE NO. 99-56
)
) IN DIVORCE
)
)
)
vs.
LINDA M MAURER
Defendant
DECREE
AND NOW, \ /C;( ClLI /7 , 19qq , it is ordered and
decreed that Plaintiff 2nd Defendant are divorced from the bonds of
matrimony.
The Court retains jurisdiction of any claims raised by the
parties to' this action for which a final order has not yet been
entered. No such claim was raised by either party. An Agreement
executed by the parties is attached hereto and incorporated into
but not merged with this decree.
BY THE COURT:
Ids %'nM/ 0. rltor/
P SIDENT JUDGE
Reisman and Davis
Attorneys for Plaintiff
Law & Finance Building
Pittsburgh, PA 15219
(412) 232-0406
True and Correct. Copy
certified from the
Records of Cameron Co., Penna.
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Deputy rotlUonotary G-e ~
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DIVORCE SETTLEMENT AGREEMENT
AGREEMENT made this R day of J IHJ\JA~'i 199.:L,
between WILLIAM B. MAURER ("Husband") and LINDA M. MAURER ("Wife").
WIT N E SSE T H:
WHEREAS, the parties hereto are Husband and Wife, having been
married on September 12, 1992 in Boswell, Pennsylvania.
WHEREAS, diverse unhappy differences, disputes and
difficulties have arisen between the parties and it is the
intention ot Wife and Husband 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 of real and personal property; the
equi table distribution of such property; and in general, the
settling of any and all claims and possible claims by one against
the other or against their respective estates.
NOW, THEREFORE, in consideration of the premises and of the
mutual promises, convenants and undertakings hereinafter set
forth and for other good and valuable consideration, receipt of
which is hereby acknowledged by each of the parties hereto, Wife
and Husband, each intending to be legally bound hereby, convenant
and agree as follows:
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1. This Agreement shall not be considered to affect or bar
the right of Wife or Husband to a divorce on lawful grounds if such
grounds now exist or shall hereafter exist or to such defense may
be available to either party. This Agreement is not intended to
condone and shall not be deemed a condonation of the part of either
party hereto of any act or acts on the part of the other party
which have occasioned the disputes or unhappy differences which
have occurred prior to or which may occur subsequent to the date
hereof.
2. 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
wi th respect to the parties. It is the intent of the parties
hereto that this Agreement shall create contractual rights and
obligations entirely independent of any Court Order and that this
Agreement may be enforced by contract remedies in addition to any
other remedies which may be available pursuant to the terms of this
Agreement or otherwise under law or equity.
3. The parties agree that the terms of this Agreement shall
be incorporated into but not merged with any divorce decree which
may be entered.
4. The "date of execution" or "execution date" of this
Agreement shall be defined as the date upon which it is executed by
the parties if they have each executed the Agreement on the same
date. Otherwise, the "date of execution" or "execution
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date" of this Agreement shall be defined as the date of execution
by the party last executing this Agreement.
5. Husband and Wife each do hereby mutually remise, release,
quitclaim and forever discharge the other and the estate of the
other, for all time to come, and for all purposes whatsoever, of
and from any and all rights, title and interests, or claims in or
against the property (including income and gain from property
hereafter accruing) of the other or against the estate of such
other, of whatever nature and wheresoe~er situate, which he or she
now has or a t any time hereafter may have against the other, the
estate of such other or any party thereof, whether arising out of
any former acts, contracts, engagements or liabilities of such
other or by way of dower or curtesy, or claims in the nature of
dower or curtesy or widow's or widower's rights, family exemption
or similar allowance, or under the intestate laws, or the right to
take against the spouse's will; or the right to treat a lifetime
conveyance by the other as testamentary, or all other rights of a
survi ving spouse to participate in a deceased spouse's estate,
whether arising under the laws of (a) Pennsylvania, (b) any State,
Commonwealth or territory of the United States, or (c) any other
country, or any rights which either party may have or at any time
hereafter shall have for past, present or future support or
maintenance, alimony, alimony pendents Ii te, counsel fees, property
division, costs or expenses, whether arising as a result of the
marital relation or otherwise, except, all rights and agreements
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and obligations of whatsoever nature arising or which may arise
under this Agreement or for the breach of any provision thereof.
It is the intention of Husband and Wife to give to each other by
the execution of this Agreement a full, complete and general
release with respect to any and all property of any kind or nature,
real, personal or mixed, which the other now owns or may hereafter
acquire, including but not limited to cash on hand, bank funds and
accounts, pensions, pension funds and pension incomes, except and
only except all rights and agreements and obligations of whatsoever
nature arising or which may arise under this Agreement that this
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Agreement shall be and constitute a full and final resolution of
any and all claims which each of the parties may have against the
other for equitable division of property, alimony, counsel fees and
expenses, alimony pendente lite or any other claims pursuant to the
Pennsylvania Divorce Cede or the divorce laws of any other
jurisdiction.
6. Husband and Wife do hereby aCknowledge that they have
previously divided their tangible personal property including,
but without limitation, jewelry, clothes, furniture, furnishings,
rugs, carpets, household equipment and appliances, pictures, books,
works of art and other personal property. Except as may otherwise
be provided in this Agreement, Wife agrees that all of the property
of Husband or in his possession shall be the sole and separate
property of Husband; and Husband agrees that all of the property of
Wife or in her possession shall be the sole and separate property
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of Wife. The parties do hereby specifically waive. release.
renounce and forever abandon whatever claim, if any, he or she may
have with respect to the above items which shall become the sole
and separate property of the other.
7. With respect to the motor vehicles owned by one or both of
the parties, they agree as follows:
a. 1995 Ford shall become the sole and exclusvive
property and responsibility of Husband and he will
hold Wife completely harmless from same.
b. Leased 1998 Ford shall become the sole and exclusive
property and responsibility of Wife and she will hold
Husband completely harmless from same.
The ti tIe to said 1995 Ford shall be executed by the
parties, if appropriate for effecting transfer as herein provided,
on or before the date of execution of this Agreement and said
executed title shall be delivered to Husband.
8. Husband and Wife, wi thin 30 days of the execution hereof,
will equally divide the compact disks. Disney Christmas ornaments.
and the video tapes purchased while married.
9. Wife will receive and have sole possession of: the dining
room set, living room furniture, bedroom set (with the exception of
the waterbedl, and push mower.
10. Husband will recieve and have sole possession of:
waterbed, roll top desk, computer, computer desk, safe,
television. vcr, stereo system, all tools and lawn and garden
the
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equipment.
11. The real estate situate at and known as 26 Willow Way
Drive, Enola, Pennsylvania will be promptly sold, all marital debts
paid with the proceeds, the remaining proceeds to be immediately
divided between Husband and Wife, both of whom will continue to
reside at said realty until possession thereof is surrendered to
the buyer(s).
12. Until the said sale of said real estate, all credit card
debts will be equally divided by Husband and Wife opening new
credit card accounts to which 50% (per spouse) of existing credit
card debt will be transferred. This will be done within 30 days.
13. The parties agree and acknowledge that their marriage is
irretrievably broken, that they do not desire marital counselling,
and that they both consent to the entry of a decree in divorce
pursuant to Section 3301(c) of the Pennsylvania Divorce Code, Act
26 of 1980, as may be amended (herein referred to as the Code).
Accordingly, both parties agree to forthwith execute such consents,
affidavits, or other documents necessary to conclude a divorce.
14. Each party represents that they have not heretofore
incurred or contracted for any debt or liability or Obligations
for which the estate of the other party may be responsible or
liable except as may be provided for in this Agreement. Each
party agrees to indemnify and hold the other party harmless for and
against any and all such debts, liabilities or obligations of every
kind which may have heretofore been incurred by them,
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including those for necessi ties, except for the obligations arising
out of this Agreement.
15. Wife and Husband each covenant, warrant, represent and
agree that with the exception of obligations set forth in this
Agreement, neither of them shall hereafter incur any liability
whatsoever for which the estate of the other may be liable. Each
party shall indemnify and hold harmless the other party for and
against any and all debts, charges and liabilities incurred by
the other after the execution date of this Agreement, except as
may otherwise specifically provided for by the terms of this
Agreement.
16. Each party shall, at any time and from time to time
hereafter, take any and all steps and execute, acknowledge and
deliver to the other party any and all further instruments and/or
documents that the other party may reasonably require for the
purpose of giving full force and effect to the provisions of this
Agreement.
17. This Agreement shall be construed in accordance with the
laws of the Commonwealth of Pennsylvania which are in effect as of
the date of execution of this Agreement.
18. This Agreement shall be binding and shall inure to the
benefit of the parties hereto and their respective heirs,
executors, administrators, successors, and assigns.
19. This Agreement constitutes the entire understanding of
the parties and supercedes any and all prior agreements and
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negotiations between them. There are no representations or
warranties other than those expressly set forth therein.
20. Wife and Husband convenant and agree that they will
execute any and all written instruments, assignments, releases,
satisfactions, deeds, notes of such other writings as may be
necessary or desirable for the proper effectuation of this
Agreement.
21. This Agreement shall remain in full force and effect
unless and until terminated under and pursuant to the terms of
this Agreement. The failure of either party to insist upon strict
performance of any of the provisions of this Agreement shall in no
way affect the right of such party hereafter to enforce the same,
nor shall the waiver of any default or breach of any provision
hereof be construed as a waiver of any subsequent default or breach
of the same or similar nature, nor shall it be construed as a
waiver of strict performance of any other obligations hereof.
22. . It is expressly understood and agreed by and between the
parties hereto that this Agreement may be specifically enforced by
either Husband or Wife in Equity, and the parties hereto agree
that if an action to enforce this Agreement is brought in Equity by
either party, the other party will make no objection on the
alleged ground of lack of juriSdiction of said Court on the ground
that there is an adequate remedy at law. The parties do
not intend or purport hereby to improperly confer juriSdiction on
a Court in Equity by this Agreement, but they agree as provided
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herein for the forum of equity in mutual recognition of the present
state of law, and in recognition of the general jurisdiction of
Courts in Equity over agreements such as this one.
23. If any term, condition, clause or provision of this
Agreement shall be determined or declared to be void or invalid
in law or otherwise, then only that term, condition, clause or
provision shall be stricken from this Agreement and in all other
respects this Agreement shall be valid and continue in full
force, effect and operation. Likewise, the failure of any party to
meet his or her obligations under anyone or more of the
paragraphs herein, with the exception of the satisfaction of the
conditions precedent, shall in no way avoid or alter the remaining
obligations of the parties.
IN WITNESS WHEREOF, the parties have set their hands and seals
first above written.
WITNESS
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William B. aurer
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Debits Owed Mnthlv Pavment Balanced Owed Acct#
Benificial
Dining Suit 94.68 3075.00 711714-00-113338-4
Bedroom Suit 76.98 920049 711715-00-511635-8
Bon Ton 30.00 618.24 095334124
Circuit City 47.00 1090.00 1523003503554693
Gateway 50.00 llOO.OO 60ll 7660200160Hl
Hechts 30_00 156.00 503-025-15
J C Penney 55.00 1ll5.30 080-134-764-21
Kohls 33.00 661.61 029-5169-064
Lowes 20.00 450.00 8222239 046332 5
Victorias Secret 15_00 200_00 593-429-129
Total 451.66 9386.64
What I owe Bill
PSECU 4500.00 ????? 50.00 Pay
First USA 5500_00 ????? 125.00 Month
Montbly Expenses
PP&L
Phone
Cable
Rent
Car
Allte!
70- 150
45.00
42.89
650.00
400.68
3172
Total
1170.29
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WILLIAM B. MAURER,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL V ANlA
Petitioner,
v.
: NO: 3301 Civil 2000
: CIVIL ACTION
LINDA MAURER,
: IN DIVORCE
Respondent.
MEMORANDUM ON BEHALF
OF PETITIONER
I. FACTS:
The Petitioner and Respondent were married September 12, 1992, but in
1998, began to experience domestic difficulties. They contacted, through a
newspaper advertisement, a firm in Pittsburgh, Pennsylvania, to secure a divorce,
which was done through Cameron County, Pennsylvania.
As part of that proceeding, the parties filled out the necessary documents to
secure a divorce decree which was entered May 17, 1999.
The decree, by its very nature, references an agreement executed by the
parties, which is incorporated into the decree, but not merged.
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The agreement was executed January 22, 1999, by and between the parties.
The information contained in the agreement was as supplied to the attorneys through
a questionnaire that was forwarded to the Maurers.
At time of the divorce, the signatures on the various documents, including the
filling out of the questionnaire, the parties were residents of Cumberland County.
On January 22,1999, the parties executed a Divorce Settlement Agreement,
which, among other matters, had terms provided as it related to the payment of
certain marital debts that were primarily debts incurred through credit cards.
According to the agreement, the wife is to transfer fifty (50%) percent of the
debt by opening up her own credit card account.
The credit cards that were in existence as of the time of the agreement were
credit cards for which both parties signed as obligors.
After the agreement was entered into and all of the other provisions of the
agreement were effectuated, the wife, despite all other provisions of the agreement
being carried out, never transferred fifty (50%) percent of debt to her own credit
card.
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Instead, husband continued to make payment on the credit card accounts and
wife would reimburse him for her share of the payment.
As of April 28, 2000, wife had reimbursed husband for some of the payments,
but still had an obligation to him of in excess of two thousand ($2,000.00) dollars.
That obligation for reimbursement continues and is much higher as of the date of the
hearing, which was held July 25,2000.
Husband acknowledged that during the 1997-98 time frame, he was engaged
in a relationship with a Beth Drebot. At the time of this relationship, Beth was
manied to Tom Drebot, and in October of 1998, Beth gave birth to a child named
'Kyle.
On March 29,1999, Beth and Tom entered into a comprehensive custody
agreement in Dauphin County Court in the form of an Order executed by Judge
Klinefelter wherein Tom acknowledged that he was the father of Kyle.
Some time after March 29, 1999, and well after the execution of the property
settlement agreement between Mr. and Mrs. Maurer on January 22, 1999, the issue
of the health of Kyle became critical.
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Kyle was born with significant health problems which necessitated the
determination of the biological parents.
Because of that, the Petitioner herein submitted to blood testing and learned
for the first time that he in fact was the father of Kyle.
As a result, Tom and Beth Drebot executed the documents necessary to
discontinue the custodial arrangement and Mr. Maurer has since obligated himself to
Kyle.
While all of this was transpiring, nonetheless, William and Linda Maurer
continued to reside together in Cumberland County up through and including the
June-July time frame of 1999.
In September of 1999, Mrs. Maurer discontinued reimbursing Bill indicating
in a note to him that she was unable to do so because of her income status.
Mr. Maurer then filed a Petition to Enforce the January 22, 1999, agreement,
and at the time of the hearing, Mrs. Maurer now adopts the position that she did not
comply with the agreement because of some alleged fraud by Mr. Maurer in not
disclosing the paternity of the child.
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However, Mrs. Maurer candidly admitted that in fact she discontinued the
matter because of income difficulties and that otherwise she knew exactly what she
was getting into as far as the property settlement agreement was concerned.
Mrs. Maurer further suggested that if she had not entered into the agreement,
she may have faired better with the distribution of property.
It should be noted that at the time of the execution of the property settlement
agreement, both parties were gainfully employed, with Mrs. Maurer making more
money than Mr. Maurer, and having a better pension than Mr. Maurer.
II. LEGAL PRINCIPLES:
A. THE PROPERTY SETTLEMENT AGREEMENT OF
JANUARY 22, 1999, SHOULD BE ENFORCED. SEE,
SIMEONE V. SIMEONE, 528 P A. 392, (1990).
In analyzing the validity of a post-nuptial property settlement agreement, the
same principles oflaw are used as are applicable to ante-nuptial agreements. See,
Adams v. Adams, 414 Pa.Super. 634, (1992).
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In Simeone v. Simeone, 528 Pa. 392, (1990), the Supreme Court of
Pennsylvania narrowed an earlier plurality decision of In Re: Estate of Gver, 516
Pa. 492, 1987, stating:
(G)ever and its predecessors embodied substantial
departures from traditional rules of contract law, to the
extent that they allowed consideration of the knowledge
of the contracting parties and reasonableness of their
bargain as factors governing whether to uphold and
agreement. Traditional principles of contract law
provide perfectly adequate remedies where contracts
are procured through fraud, misrepresentation, or
duress. Consideration of other factors such as the
knowledge of the parties and the reasonableness of their
bargain, is inappropriate. Pre-nuptial agreements are
contracts, and, as such, should be evaluated under the
same criteria as are applicable to other types of contracts.
Absent fraud, misrepresentation, or duress, spouses
should be bound by the terms of their agreements.
Contracting parties are normally bound by their
agreements, without regard to whether the terms thereof
were read and fully understood and irrespective of
whether the agreements embodied reasonable or good
bargains. See, Standard Venetian Blind Co. v. American
Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563,
566 (1983), (failure to read a contract does not warrant
avoidance or nullification of its provisions); Estate of
Brant, 463 Pa. 230, 235, 344 A.2d 806, 809 (1975);
Bollinger v. Central Pennsvlvania QUarry Stripping &
Construction Co., 425 Pa. 430, 432, 229 A.2d 741,742
(1967) ('Once a person enters into a written agreement he
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builds around hllnself a stone wall, from which he cannot
escape by merely asserting he had not understood what he
was signing.'); Montgomery v. Levv, 406 Pa. 547,550,
177 A.2d 448, 450 (1962) (one is legally bound to know
the terms of the contract entered). Based upon these
principles, the terms of the present pre-nuptial agreement
must be regarded as binding, without regard to whether
the terms were fully understood by appellant. Ignorantia
non excusat. (Citations omitted.) (Emphasis added.)
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In disregarding the approach of Gever that permitted
examination of the reasonableness of pre-nuptial
agreements and allowed inquiries (sic) into whether
parties had attained informed understandings of the rights
they were surrendering, we do not depart from the
longstanding principle that a full and fair disclosure of
the financial positions of the parties is required.
Absent this disclosure, a material misrepresentation in
the inducement for entering a pre-nuptial agreement
may be asserted. [In re: Estate of Hillegass, 431 Pa.
144,152-53,244 A.2d 672, 676-77 (1968).] Parties to
these agreements do not quite deal at arm's length, but
rather at the time the contract is entered into stand in a
relation of mutual confidence and trust that calls for
disclosure of their financial resources. Id. At 149, 244
A.2d at 675; Gelb Estate, 425 Pa. 117, 120,228 A.2d
367,369 (1967). It is well settled that this disclosure
need not be exact, so long as it is 'full and fair.'
Kauffmann Estate, 404 Pa. 131, 136 n. 8, 171 A.2d 48,
51 n. 8 (1961). In essence therefore, the duty of
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disclosure under these circumstances is consistent with
traditional principles of contract law. (Emphasis added.)
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If an agreement provides that full disclosure has been
made, a presumption of full disclosure arises. If a
spouse attempts to rebut this presumption through an
assertion of fraud or misrepresentation then this
presumption can be rebutted if it is proven by clear
and convincing evidence. Hillegass, 431 Pa. at 152-53,
244 A.2d at 676-77. (Emphasis added.)
In Mormello v. Mormello, 682 A.2d 824 (Pa. Super. 1996), the facts as set
forth by the Superior Court of Pennsylvania were:
Appellant, Elaine Mormello, and Appelle, Michael
Mormello, were married on May 17, 1964. They have
four children, all of whom are now emancipated. During
the marriage, the wife worked as a management assistant
for the Navy Yard for nine years but also contributed to
the household as a homemaker. The wife's only source of
income is her $546.00 monthly Social Security Disability
Benefit which she receives because she has a form of
Muscular Dystrophy.
The husband worked for the City of Philadelphia as a
police officer for ahnost the entire term of the marriage.
The husband currently receives a pension in the amount of
$1,500.00 a month from the City of Philadelphia, and he
is presently employed with the Pennsylvania Attorney
General's Office earning an annual salary of
approximately $33,000.00.
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In April of 1993, after nearly twenty-nine years of
marriage, the husband stopped sleeping at the marital
residence, and the parties effectively separated. On
October 25, 1993, the husband visited his wife at his
daughter's house where the wife was babysitting their
twin one-year old grandchildren. The husband presented
the wife with a twelve page, type-written Property
Settlement Agreement which an attorney had prepared for
and explained to the husband. The husband told the wife
to sign the agreement, and when the wife asked if she
could read it, the husband responded negatively and told
the wife that he had to get to work. When the wife asked
the husband what the agreement said, he told her that it
only said that she would receive the house and the car and
that he would continue to pay for them. The husband
failed to mention anything about the wife's relinquishing
all of her rights to the remaining marital property. The
husband was only in the house for somewhere between
five and twenty minutes. With one grandchild in her arms
and another walking about the room, the wife signed and
initialed but did not read the Property Settlement
Agreement. After the husband's abrupt departure, the
wife was not even left: with a copy of the agreement, and
she would not receive one for several days.
The Property Settlement Agreement provided that the
husband will continue to make monthly mortgage and car
payments and will transfer the titles of the home and car
to the wife. The monthly motgage payment on the house
is $888.00. The wife's insurer, CUNA Mutual Insurance
Society, pays $833.00 of the monthly payment, so the
husband's monthly mortgage payment is $54.67. CUNA
will continue to make the payment so long as the wife's
disability, which is permanent, lasts.
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The Property Settlement Agreement also provided that
both parties waive any claims against the other. This
provision waives the wife's claim to the largest asset of
the marriage, the husband's $300,000.00 pension.
Finally, the terms of the Property Settlement Agreement
provided that '[t]he parties warrant and represent that they
have made a full and fair disclosure of all assets prior to
the execution of this agreement.'
In Mormello, wife filed an appeal from a decision of the trial court enforcing
the property settlement agreement. The Superior Court stated:
there is no merit to the appellant-wife's claim that the
Property Settlement Agreement is not valid because the
husband allowed her little time to read the agreement and
no time to take it to an attorney. The trial court's order of
July 18, 1995 found that the wife knowingly and
intelligently signed the agreement in the absence of
duress, fraud, or misrepresentation. Because the wife
voluntarily signed a properly constructed Property
Settlement Agreement, she is not entailed to relief from
the agreement on that basis.
Wife also challenged the agreement on the basis that she did not receive full and fair
disclosure of her legal rights under the Divorce Code. The Superior Court noted
that "[F]or a Post-nuptial Property Settlement Agreement to be valid, there must be
evidence that the parties are aware of the statutory rights they are relinquishing."
The Superior Court concluded that the agreement contained a full and fair disclosure
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of wife's statutory rights. Wife further claimed that the agreement failed to make
full and fair disclosure of the parties' worth. The Superior Court noted that absent
such a disclosure, a material representation in the inducement for entering into a
post-nuptial agreement may be asserted. Citing Adams v. Adams, Supra., and Nigro
v. Nigro, 371 Pa. Super. 625 (1998), the court stated that there is full and fair
disclosure at the time an agreement is executed if wife was sufficiently involved in
husband's financial affairs for the court to determine that she was fully and fairly
aware of the marital estate.
Accordingly, applying the aforementioned principles, Mrs. Maurer clearly
indicated that she was fully aware of the marital estate of parties.
In fact, her own position was economically superior to that of her husband,
Mr. Maurer.
It should be noted that all of the cases indicate that it is a question of the
awareness of the marital estate that is at issue.
No cases of which Petitioner herein could find suggest that the failure to
disclose a possible paternity claim is grounds to set aside a property settlement
agreement which otherwise contains a full and fair disclosure of all of the assets.
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,
Accordingly, the Petitioner requests this Court to enforce the Property
Settlement Agreement, particularly as it pertains to the wife's obligation of fifty
(50%) percent of the marital debts.!
Respectfully submitted,
Mancke, Wa@er, Hershey & Tully
J.D. #23103
2233 North Front Street
Harrisburg, P A 17110
(717) 234-7051
Attorneys for Petitioner
Date: ~/i / {)()
I I
1 A very thorough analysis of property settlement agreements is contained in
an opinion by the Honorable Edgar Bayley in Schildt v. Schildt, 97-4969 Civil
Term, a copy of which is attached.
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ROBERT L. SCHILDT,
PLAINTIFF
IN THE COURT OF COMMON PlEAS OF
CUMBERLAND COUNTY, PENNSYlVANIA
v.
MARY E. SCHILDT,
DEFENDANT
97-4969 CIVIL TERM
IN RE: PETITION OF PLAINTIFF TO ENFORCE
THE PROPERTY SETTLEMENT AGREEMENT
BEFORE BAYLEY, J.
ORDER OF COURT
AND NOW, this t2. b day of May, 1998, the petition of plaintiff to enforce a
property settlement agreement dated September 9, 1995, IS DENIED.
OJ
By the Court,,? ,.. /
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Edgar B. Bayley, J.
P. Richard Wagner, Esquire
For Plaintiff
R. Mark Thomas, Esquire
For Defendant
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ROBERT L. SCHILDT,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
MARY E. SCHILDT,
DEFENDANT
97-4969 CIVfL TERM
IN RE: PETITION OF PLAINTIFF TO ENFORCE
THE PROPERTY SETTLEMENT AGREEMENT
BEFORE BAYLEY. J.
OPINION AND ORDER OF COURT
BAYLEY, J., May 26, 1998:--
Plaintiff, Robert L. Schildt, filed this divorce action against defendant, Mary E.
Schildt, on September 15, 1997. Wife fiied a counterclaim seeking inter alia. the
equitable distribution of marital property. On March 18, 1998, husband filed a
petition for special relief to enforce a written property settlement agreement signed by
the parties on September 9, 1995. Wife filed an answer in which she maintains that
the agreement should not be enforced because at the time it was executed (1) she
was not fully and fairly aware of the marital estate or her right to a fair portion of that
marital estate, and (2) she was acting under the duress of her husband which caused
her to execute an agreement which was unfair and unjust. A hearing on the merits of
the petition was conducted on April 8, 1998.
The parties were married on September 15, 1967. They separated on August
21, 1995. They have two children, ages 24 and 22. Husband works out of Local 520
of the Plumbers and Pipe Fitters Union. Last year he had income of $42,000 from
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97-4969 CIVIL TERM
that employment and from unemployment compensation during periods when he was
temporarily not assigned to jobs. Prior to marriage wife was a licensed practical
nurse. During the marriage the parties agreed that she would be a housewife.
Starting in May, 1994, however, wife started working at labor positions through a
temporary agency for $7.00 per hour.
Until August 21, 1995, the parties lived together in a jointly owned marital
residence located in Liverpool, Perry County, on tracts tota/ring thirty-five and one-
quarter acres. In 1994, thirty storage rental units were constructed on the property.
The parties were joint owners of three rental properties in Harrisburg, purchased in
1986, 1987 and 1988, located at 2124 North Third Street, and 2153 and 2353 Logan
Street.
Wife testified that the parties first started experiencing marital difficulties when
she was diagnosed with cancer near the end of 1992. Prior to that time, husband
gave her his earnings checks and she paid all the bills. Sometime in 1993, husband
stopped giving her his paychecks and took all of the checkbooks and the keys to the
Harrisburg apartments. Thereafter, he controlled all of the money. Wife was aware of
all of the properties owned by the parties, and of the mortgages on those properties.
In May, 1994, husband told wife that he wanted her to go to work to help pay bills.
She took an hourly labor job through a temporary agency. Wife gave most of her
income to husband to pay bills. Telling wife that they were now business partners,
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97-4969 CIVIL TERM
husband chose to regularly write receipts to her for that money.' Wife testified that
she let husband take over the finances as an act of submission. Husband testified
that he did not take control of all of the finances until 1995. He acknowledged that he
chose to give wife receipts for the money she contributed to the expenses of their
household.2
Wife testified that when she came home from work on August 21, 1995, her
husband told her that on the next Wednesday she was to go to his attorney's office,
Richard Cramer in Duncannon, and sign everything over to him. Wife asked husband
what would happen if she refused, and he became "very, very angry." That evening,
wife went to the parties' trailer located on a tract of land they owned in Hopewell
Township, Perry County. She left husband a note at the marital residence in
Liverpool:
I've moved temporarily to our trailer. We need space to think. I
did not leave you nor did the kids. We all love you but you need time to
re-think what is most important. I am not angry or upset. Just sad!
I love you - take care. Maybe a month alone wili do us good. If
you change your mind I'll be waiting. We took only necessary items!
Husband immediately changed the locks on the marital residence and boarded
the doors so that wife could not enter. Husband stopped by the trailer a few days
later and asked wife when she was going to sign everything over to him. Wife went
to see an attorney, but the attorney would not give her legal advice because he had
1. Some of those receipts were admitted into evidence.
2. Why, we haven't the faintest idea
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97-4969 CIVIL TERM
done real estate work for both parties. Wife then wrote the following note on
September 1, 1995:
I, Mary E. Schildt, being of a sound mind this 1st day of September
1995 am hereby giving permission to have my name removed from all
properly deeds listed below and any insurance coverage on those
properties.
2124 North 3rd Street, Harrisburg
2353 Logan Street, Harrisburg
2153 Logan Street, Harrisburg
Residence, RD1 Uverpool
I am also giving all of my personal property, dishes, fumiture, curtains,
etc. to my husband Robert L. Schildt I am willing to remove my name
from all jointly owned vehicles. I do not want Roberts [sic] pension,
retirement, or insurances.
Wife testified that she wrote the note because her husband told her that it was
needed by Attorney Cramer. Attorney Cramer prepared a property settlement
agreement. Without consulting an attorney, wife, along with husband, signed a
property settlement agreement prepared by Attorney Cramer at his office on
September 9, 1995. Attorney Cramer testified that he drafted the document from
terms that husband told him were agreed to by the parties. He advised wife to obtain
advice from an attorney. He told her that he was representing husband and not her.
He reminded wife that the agreement provided that she was signing over the bulk of
the parties' real estate to husband. Attorney Cramer testified that wife stated that she
wanted $10,000 to sign the agreement. Husband agreed and such a provision was
handwritten into the agreement and initialled by the parties. The parties signed deeds
transferring to husband the thirty-five and one-quarter acre tract on which the marital
residence was located and the three Harrisburg rental properties, and to wife the
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97-4969 CIVIL TERM
Hopewell Township property on which the trailer was located in which she was Iiving.3
The agreement contains a full waiver of statutory rights. In addition, a paragraph
titled Full Disclosure provides:
Husband and Wife hereby state that they have negotiated the
within Agreement after full disclosure, one to the other, of all marital
property, assets, pensions, debts and financial matters.
Both parties acknowledge that they fully understand the facts and
acknowledge and accept that this Agreement is fair and equitable and
that it is being entered into freely and voluntarily and is not the
result of any duress, undue influence, collusion or improper or
illegal agreement or agreements. (Emphasis added.)
A paragraph titled Equitable Distribution provides:
It is specifically understood and agreed that this Agreement
constitutes an equitable distribution of property, which was legally and
beneficially acquired by Husband and Wife or either of them in the
manriage, as contemplated by the . . . Divorce Code, Commonwealth of
Pennsylvania, 23 P.S. 93101 et seq.
Wife testified that Attorney Cramer's testimony was accurate. She testified that
she signed the agreement because husband told her that if she signed everything
over to him (1) it would show that she trusted and loved him, (2) everything would be
okay in their manriage, and (3) she could return to the marital residence. Wife further
testified that on the evening of the day she signed the agreement, husband spent the
night with her in the trailer. Thereafter, they continued their relationship although she
liVed in the trailer and he lived in the Liverpool residence. Wife testified that on
3. The title to the trailer which is in the name of both parties is still held by a
bank as collateral on the loan that the parties incurred during the marriage that wife is
paying. Husband is obligated to sign the title over to wife when the title is released
by the bank.
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97-4969 CIVIL TERM
February 4, 1997, husband told her that she was greedy because she had received
$10,000 and the trailer. She told him that she would pay him back the $10,000 and
give him the trailer despite the fact that she had used the money to pay debts
incurred while living alone. Wife testified that husband said that he wanted their
agreement to be enforced. Wife testified that she and husband continued their
relationship through September 15, 1997, when they spent the night together in a
motel. She was subsequently served with a divorce complaint that husband had
previously filed on September 12. Wife testified that it was then that she knew that he
no longer loved her.
Wife testified that when she signed the property settlement agreement she was
aware that the parties had substantial mortgages and loans; however, she did not
know the amounts. She testified that she did not know the vaiue of the real estate or
the equity in the real estate that was transferred between the parties. She knew that
husband had a pension from his union, but she did not know its value. Nor did she
know the value of, or the income produced from the storage rental units located on
their Liverpool property. Those units had been constructed and rented by husband
after he took over the family finances, but before their separation. The written
property settlement agreement does not set forth the value of any marital assets or
the amount of any debt.' Wife testified that when she signed the agreement, she did
4. On June 30, 1996, the First National Bank of Newport released wife from a
mortgage in the face amount of $125,000, and a note in the face amount of $40,000
securing the Harrisburg rental properties and the Liverpool property.
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97-4969 CIVIL TERM
not tell Attomey Cramer that she believed that there would be a reconciliation in her
marriage. She testified that she was not afraid of husband when she signed the
agreement, but she was leery of him.
Husband testified that when he initially talked to wife in August, 1995, about
entering into a separation agreement, she told him that she wanted $25,000 and the
removal of her name from all of the properties. He offered her $10,000. She told him
that she would contact him later. Subsequently, she told him she would accept
$10,000. He borrowed the $10,000 from a bank to pay her. Husband denied telling
wife to write the note of September 1, 1995. He testified that he does not know how
that note came about. He denied telling wife that the marriage would get better if she
signed the agreement. He acknowledged changing the locks on the marital
residence after August 21, 1995.
In analyzing the validity of a post-nuptial property settlement agreement, the
same principles of law are used as are applicable to antenuptial agreements. Adams
v. Adams, 414 Pa. Super. 634 (1992). In Simeone v. Simeone, 525 Pa. 392 (1990),
the Supreme Court of Pennsylvania narrowed an earlier plurality decision, In re
Estate of Geyer, 516 Pa. 492 (1987), stating:
[G]eyer and its predecessors embodied substantial departures from
traditional rules of contract law, to the extent that they allowed
consideration of the knowledge of the contracting parties and
reasonableness of their bargain as factors governing whether to uphold
an agreement. Traditional principles of contract law provide
perfectly adequate remedies where contracts are procured through
fraud, misrepresentation, or duress. Consideration of other factors
such as the knowledge of the parties and the reasonableness of their
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97-4969 CIVIL TERM
bargain, is inappropriate. Prenuptial agreements are contracts, and, as
such, should be evaluated under the same criteria as are applicable to
other types of contracts. Absent fraud, misrepresentation, or duress,
spouses should be bound by the terms of their agreements.
Contracting parties are normally bound by their agreements,
without regard to whether the terms thereof were read and fully
understood and irrespective of whether the agreements embodied
reasonable or good bargains. See Standard Venetian Blind Co. v.
American Empire Insurance Co., 503 Pa, 300, 305, 469 A.2d 563, 566
(1983) (failure to read a contract does not warrant avoidance or
nullification of its provisions); Estate of Brant, 463 Pa, 230, 235, 344
A.2d 806, 809 (1975); Bollinger v. Central Pennsylvania Quarry
Stripping & Construction Co., 425 Pa, 430, 432, 229 A.2d 741, 742
(1967) ('Once a person enters into a written agreement he builds around
himself a stone wall, from which he cannot escape by merely asserting
he had not understood what he was signing.'); Montgomery v. Levy,
406 Pa, 547, 550, 177 A.2d 448, 450 (1962) (one is legally bound to
know the terms of the contract entered). Based upon these principles,
the terms of the present prenuptial agreement must be regarded as
binding, without regard to whether the terms were fully understood by
appellant. Ignorantia non excusal (Citations omitted.) (Emphasis
added.)
* * *
In discarding the approach of Geyer that permitted examination of the
reasonableness of prenuptial agreements and allowed inquires [sic] into
whether parties had attained informed understandings of the rights they
were surrendering, we do not depart from the longstanding principle
that a full and fair disclosure of the financial positions of the parties
is required. Absent this disclosure, a material misrepresentation in
the inducement for entering a prenuptial agreement may be
asserted. (In re Estate of Hillegass, 431 Pa, 144, 152-53,244 A.2d
672, 676-77 (1968).] Parties to these agreements do not quite deal at
arm's length, but rather at the time the contract is entered into stand in a
relation of mutual confidence and trust that calls for disclosure of their
financial resources. Id. at 149,244 A.2d at 675; Gelb Estate, 425 Pa.
117, 120,228 A.2d 367, 369 (1967). It is well settled that this
disclosure need not be exact, so long as it is 'full and fair.'
Kaufmann Estate, 404 Pa. 131, 136 n. 8, 171 A.2d 48, 51 n. 8 (1961).
In essence therefore, the duty of disclosure under these circumstances
is consistent with traditional principles of contract law. (Emphasis
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97-4969 CIVIL TERM
added.)
* * *
If an agreement provides that full disclosure has been made, a
presumption of full disclosure arises. If a spouse attempts to rebut
this presumption through an assertion of fraud or misrepresentation
then this presumption can be rebutted if it is proven by clear and
convincing evidence. Hillegass, 431 Pa. at 152-53, 244 A.2d at 676-
77. (Emphasis added.)
In Mormello v. Mormello, 682 A.2d 824 (Pa. Super. 1996), the facts as set
forth by the Superior Court of Pennsylvania were:
Appellant, Elaine Mormello, and appellee, Michael Mormello, were
married on May 17, 1964. They have four children, all of whom are now
emancipated. During the marriage, the wife worked as a management
assistant for the Navy Yard for nine years but also contributed to the
household as a homemaker. The wife's only source of income is her
$546.00 monthly Social Security Disability Benefit which she receives
because she has a form of Muscular Dystrophy.
The husband worked for the City of Philadelphia as a police
officer for almost the entire term of the marriage. The husband currently
receives a pension in the amount of $1,500.00 a month from the City of
Philadelphia, and he is presently employed with the Pennsylvania
Attomey General's Office eaming an annual salary of approximately
$33,000.00.
In April of 1993, after nearly twenty-nine years of marriage, the
husband stopped sleeping at the marital residence, and the parties
effectively separated. On October 25, 1993, the husband visited his wife
at his daughter's house where the wife was babysitting their twin one-
year-old grandchildren. The husband presented the wife with a twelve
page, type-written Property Settlement Agreement which an attorney had
prepared for and explained to the husband. The husband told the wife
to sign the agreement, and when the wife asked if she could read it, the
husband responded negatively and told the wife that he had to get to
work. When the wife asked the husband what the agreement said, he
told her that it only said that she would receive the house and the car
and that he would continue to pay for them. The husband failed to
mention anything about the wife's relinquishing all of her rights to the
remaining marital property. The husband was only in the house far
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97-4969 CIVIL TERM
somewhere between five and twenty minutes. With one grandchild in
her arms and another walking about the room, the wife signed and
initialed but did not read the Property Settlement Agreement. After the
husband's abrupt departure, the wife was not even left with a copy of
the agreement, and she would not receive one for several days.
The Property Settlement Agreement provided that the husband
will continue to make monthly mortgage and car payments and will
transfer the titles of the home and car to the wife. The monthly
mortgage payment on the house is $888.00. The wife's insurer, CUNA
Mutual Insurance Society, pays $833.33 of the monthly payment, so the
husband's monthly mortgage payment is $54.67. CUNA will continue to
make the payment so long as the wife's disability, which is permanent,
lasts.
The Property Settlement Agreement also provided that both
parties waive any claims against the other. This provision waives the
wife's claim to the largest asset of the marriage, the husband's
$300,000.00 pension. Finally, the terms of the Property Settlement
Agreement provided that '[t]he parties warrant and represent that they
have made a full and fair disclosure of all assets prior to the execution of
this agreement.'
In Mormello, wife filed an appeal from a decision of the trial court enforcing
the property settlement agreement. The Superior Court stated:
there is no merit to the appellant-wife's claim that the Property
Settlement Agreement is not valid because the husband allowed her little
time to read the agreement and no time to take it to an attomey. The
trial court's order of July 18, 1995 found that the wife knowingly and
intelligently signed the agreement in the absence of duress, fraud, or
misrepresentation. Because the wife voluntarily signed a properly
constructed Property Settlement Agreement, she is not entailed to relief
from the agreement on that basis.
Wife also challenged the agreement on the basis that she did not receive full and fair
discfosure of her legal rights under the Divorce Code. The Superior Court noted that
"[F]or a Post-nuptial Property Settlement Agreement to be valid, there must be
evidence that the parties are aware of the statutory rights they are relinquishing." The
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97-4969 CIVIL TERM
Superior Court concluded that the agreement contained a full and fair disclosure of
wife's statutory rights. Wife further claimed that the agreement failed to make full and
fair disclosure of the parties' worth. The Superior Court noted that absent such a
disclosure, a material representation in the inducement for entering into a post-nuptial
agreement may be asserted. Citing Adams v. Adams, supra, and Nigro v. Nigro,
371 Pa. Super. 625 (1998). the court stated that there is full and fair disclosure at the
time an agreement is executed if wife was sufficiently involved in husband's financial
affairs for the court to determine that she was fully and fairly aware of the marital
estate. In Mormello, the Court held that the facts and circumstances did not
demonstrate that wife was fully aware of the marital estate. The Court concluded that
(1) "[t] he wife expressed no knowledge. . . as to the husband's monthly pension
payments or his gross salary from the attomey general's office,' (2) the properly
settlement agreement obscured the general financial resources of the parties, (3)
there was no mention in the agreement of the amount and duration of the monthly car
payments for which husband was responsible, (4) there was a failure to state the
value of husband's pension, which was the greatest asset of the marriage, and the
wife's disability payments, and (5) the only valuation to be found in the agreement
was the $65,000.00 remaining on the mortgage on the house which did not
accurately reflect husband's monetary obligation to wife. The Court further noted that
the agreement was invalid because, although husband claimed that he would pay the
remaining mortgage on the marital home, wife's insurance paid $833.33 of the
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$888.00 monthly payment. The Superior Court concluded:
The facts and circumstances in this case indicate that the appellant-wife
did not receive full and fair disclosure of the appellee-husband's worth
and that the Postnuptial Property Settlement Agreement obscured the
general financial resources of the parties. Unlike the appellant-wives in
Adams v. Adams, supra, and Nigro v. Nigro, supra, the wife in this
case did not have sufficient knowledge of her husband's financial
situation for there to have been full and fair disclosure at the time
the parties executed the agreement. The vagueness of the agreement
itself did not help to inform the wife as to the financial situation of the
parties and, actually further obscured the financial situation. (Emphasis
added.)
Accordingly, the Superior Court reversed the trial court, declaring the property
settlement agreement invalid and granting wife's petition for special relief.
DISCUSSION
Based on the legal standards set forth in Simeone and Mormello, we will
examine wife's claims in the case sub iudice. Wife maintains that she was not aware
of her right to a fair proportion of the parties' marital estate. That claim cannot
provide her relief. The fact that she did not consult with an attorney, even at the
urging of her husband's attorney, to learn what her rights were before she signed the
property settlement agreement on September 9, 1995, does not afford her a legal
basis of relief.
Wife's claim that she was not fully aware of the marital estate at the time she
signed the property settlement agreement on September 9, 1995, is another matter.
The parties' agreement set forth that they "[h]ave negotiated the within Agreement
after full disclosure, one to the other, of all marital property, assets, pensions, debts
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97-4969 CIVIL TERM
and financial matters." While wife knew what the assets of the parties were and that
there was debt, she maintains that she did not know the value of those assets or the
amount of the debt; therefore, she was not aware of the equity in the assets at the
time she signed the agreement. Those were "financial matters" between the parties.
Because the agreement contains a full disclosure clause, there is a presumption of
full disclosure. To prevail, wife must rebut the presumption by clear and convincing
evidence.
The equitable distribution clause in the agreement provides that the agreement
constitutes a settlement of all property which was legally and beneficially acquired by
the parties during their marriage. This includes their real estate and personal
property, as well as that portion of husband's pension which accrued during the
marriage until separation, and the storage rental business which husband started the
year before their separation. Full and fair disclosure of the financial position of the
parties is required before the agreement can be upheld. Such disclosure need not
be exact so long as it is full and fair. We are satisfied that wife has rebutted the
presumption that there was a full and fair disclosure of the parties' "financial matters"
before she signed the property settlement agreement on September 9, 1995.
Husband offered no testimony whereby we could conclude that (1) wife was aware of
the value of the marital real estate, (2) the amount of debt, (3) the value of the marital
portion of his pension, (4) the value of the storage rental business, and (5) the
income produced by that business. There is no credible evidence whereby we can
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97-4969 CIVIL TERM
conclude that wife knew of those values even though she need not have known the
exact values at the time she signed the property settlement agreement. Husband
suggests that there was full and fair disclosure of the parties' "financial matters"
because wife took care of the family finances before he took those responsibilities
from her. We accept wife's testimony that husband removed her from handling the
parties' finances in 1993. Husband built the storage rental units and started that
business in 1994. Wife never had any knowledge as to the marital value of husband's
pension. We are satisfied that as to the real estate holdings, wife did not have
sufficient knowledge as to the equity in the properties when she signed the property
settlement agreement on September 9, 1995.
Based on all of these factors, we find by clear and convincing evidence that
wife has rebutted the presumption that there was full and fair disclosure of the parties'
"financial matters" at the time she signed the property settlement agreement. Since
this finding alone requires that we dismiss husband's petition to enforce the marital
settlement agreement, we need not address wife's claim that she was acting under
the duress of her husband and that he made misrepresentations to her which caused
her to execute the agreement.
ORDER OF COURT
AND NOW, this 'lb day of May, 1998, the petition of plaintiff to enforce a
property settlement agreement dated September 9, 1995, 15 DENIED.
-14-
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97-4969 CIVIL TERM
P. Richard Wagner, Esquire
For Plaintiff
R. Mark Thomas, Esquire
For Defendant
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IN THE COURT OF COMMON PLEAS OF THE 59TH JUDICI.~ DISTRICT OF PENNSYLVANIA
COUNTY BRANCH - CAMERON
WILLIAM B MAURER
Plaintiff
}
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} CIVIL ACTION - LAW
}
} CASE NO. 99-56
}
) IN DIVORCE
)
)
)
vs.
LINDA M MAURER
Defendant
DECREE
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AND NOW, ,L (cd , 19.2.:...., ~t ~s ordered and
.,
decreed that Plaintiff ;{nd Defendant are divorced from the bonds of
matrimony.
The Court retains jurisdiction of any claims raised by the
parties t~' this action for which a final order has not yet been
entered. No such claim was raised by either party. An Agreement
executed by the parties is attached hereto and incorporated into
but not merged with this decree.
BY THE COURT:
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PRESIDENT JUDGE
Reisman and Davis
Attc~eys for Plaintiff
Law & Finance 3uilding
Pittsburgh, PA 15219
(412) 232-0406
True and Correct Copy
certified from the
Records of Cameron Co., Penna.
f1.lfllLl } ry Yf /J
Deputy Protb'onotarj Dzo---rtI
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PETITIONER'S
1 EXHIBIT
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DIVORCE SETTLEMENT AGREEMENT
AGREEMENT made this ~ day of J AIJUAI\,'! 199-3.,
between WILLIAM B. MAURER ("Husband") and LINDA M. MAURER ("Wife").
WIT N E SSE T H:
WHEREAS, the parties hereto are Husband and Wife, having been
married on September 12, 1992 in Boswell, Pennsylvania.
WHEREAS, diverse unhappy differences, disputes and
difficulties have arisen between the parties and it is the
intention of Wife and Husband 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 of real and personal property; the
equi table distribution. of such property; and in general, the
settling of any and all claims and possible claims by one against
the other or against their respective estates.
NOW, THEREFORE, in consideration of the premises and of the
mutual promises, convenants and undertakings hereinafter set
forth and for other"good and valuable consideration, receipt of
which is hereby aCknowledged by each of the parties hereto, Wife
and Husband, .each inte~~ing to be legally bound hereby, convenant
and agree as follows:
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1. This Agreement shall not be considered to affect or bar
the right of Wife or Husband to a divorce on lawful grounds if such
grounds now exist or shall hereafter exist or to such defense may
be available to either party. This Agreement is not intended to
condone and shall not be deemed a condonation of the part of either
party hereto of any act or acts on the part of the other party
which have occasioned the disputes or unhappy differences which
have occurred prior to or which may occur subsequent to the date
hereof.
2. 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
wi th respect to the parties. It is the intent of the parties
hereto that this Agreement shall create contractual rights and
obligations entirely independent of any Court Order and that this
Agreement may be enforced by contract remedies in addition to any
other remedies which may be available pursuant to the terms of this
Agreement or otherwise under law or equity.
3. The parties agree that the terms of this Agreement shall
be incorporated into but not merged with any divorce decree which
may be entered.
4. The "date of execution" or "execution date" of this
Agreement shall be defined as the date upon which it is executed by
the parties if they have each executed the Agreement on the same
date. Otherwise. the "date of execution" or "execution
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date" of this Agreement shall be defined as the date of execution
by the party last executing this Agreement.
5. Husband and Wife each do hereby mutually remise, release,
quitclaim and forever discharge the other and the estate of the
other, for all time to come, and for all purposes whatsoever, of
and from any and all rights, title and interests, or claims in or
against the property (including income and gain from property
hereafter accruing) of the other or against the estate of such
other, of whatever nature and wheresoever situate, which he or she
now has or at any time hereafter may have against the other, the
estate of such other or any party thereof, whether arising out of
any former acts, contracts, engagements or liabilities of such
other or by way of dower or curtesy, or claims in the nature of
dower or curtesy or widow's or widower's rights, family exemption
or similar allowance, or under the intestate laws, or the right to
take against the spouse's will; or the right to treat a lifetime
conveya~ce by the other as testamentary, or all other rights of a
survi ving spouse to participate in a deceased spouse's estate,
whether arising under the laws of (a) Pennsylvania, (b) any State,
Commonwealth or territory of the United States, or (c) any other
country, or any rights which either party may have or at any time
hereafter shall have for past, present or future support or
maintenance, alimony, alimony pendents lite, counsel fees, property
division, costs or expenses, whether arising as a result of the
marital relation or otherwise, except, all rights and agreements
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and obligations of whatsoever nature arising or which may arise
under this Agreement or for the breach of any provision thereof.
It is the intention of Husband and Wife to give to each other by
the execution of this Agreement a full, complete and general
release with respect to any and all property of any kind or nature,
real, personal or mixed, which the other now owns or may hereafter
acquire, including but not limited to cash on hand, bank funds and
accounts, pensions, pension funds and pension incomes, except and
only except all rights and agreements and obligations of whatsoever
nature arising or which may arise under this Agreement that this
Agreement shall be and constitute a full and final resolution of
any and all claims which each of the parties may have against the
other for equitable division of property, alimony, counsel fees and
expenses, alimony pendente lite or any other claims pursuant to the
Pennsylvania Divorce Code or the divorce laws of any other
jurisdiction.
6: Husband and Wife do hereby acknowledge that they have
previously divided their tangible personal property including,
but without limitation, jewelry, clothes, furniture, furnishings,
rugs, carpets, household equipment and appliances, pictures, books,
works of art and other personal property. Except as may otherwise
be provided in this Agreement, Wife agrees that all of the property
of Husband or in his possession shall be the sole and separate
property of Husband; and Husband agrees that all of the property of
Wife or in her possession shall be the sole and separate property
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of Wife. The parties do hereby specifically waive, release,
renounce and forever abandon whatever claim, if any, he or she may
have with respect to the above items which shall become the sole
and separate property of the other.
7. With respect to the motor vehicles owned by one or both of
the parties, they agree as follows:
a. 1995 Ford sha1l,become the sole and exclusvive
property and responsibility of Husband and he will
hold Wife completely harmless from same.
b. Leased 1998 Ford shall become the sole and exclusive
property and responsibility of Wife and she will hold
Husband completely harmless from same.
The title to said 1995 Ford shall be executed by the
parties, if appropriate for effecting transfer as herein provided,
on or before the date of execution of this Agreement and said
executed title shall be delivered to Husband.
8: Husband and Wife, within 30 days of the execution hereof,
will equally divide the compact disks, Disney Christmas ornaments,
and the video tapes purchased while married.
9. Wife will receive and have sole possession of: the dining
room set, living room furniture, bedroom set (with the exception of
the waterbed), and push mower.
10. Husband will recieve and have sole possession of:
waterbed, roll top desk, computer, computer desk, safe,
television, vcr, stereo system, all tools and lawn and garden
the
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equipment.
11. The real estate situate at and known as 26 Willow Way
Drive, Enola, Pennsylvania will be promptly sold, all marital debts
paid with the proceeds, the remaining proceeds to be immediately
divided between Husband and Wife, both of whom will continue to
reside at said realty until possession thereof is surrendered to
the buyer(s).
12. Until the said sale of said real estate, all credit card
debts will be equally divided by Husband and Wife opening new
credit card accounts to which 50% (per spouse) of existing credit
card debt will be transferred. This will be done within 30 days.
13. The parties agree and,acknowledge that their marriage is
irretrievably broken, that they do not desire marital counselling,
and that they both consent to the entry of a decree in divorce
pursuant to Section 3301(c) of the Pennsylvania Divorce Code, Act
26 of 1980, as may be amended (herein referred to as the Code).
Accordil}gly, both parties agree to forthwith execute such consents,
affidavits, or other documents necessary to conclude a divorce.
14. Each party represents that they have not heretofore
incurred or contracted for any debt or liability or obligations
for which the estate of the other party may be responsible or
liable except as may be provided for in this Agreement. Each
party agrees to indemnify and hold the other party harmless for and
against any and all such debts, liabilities or obligations of every
kind which may have heretofore been incurred by them,
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including those for necessities, except for the obligations arising
out of this Agreement.
15. Wife and Husband each covenant, warrant, represent and
agree that with the exception of obligations set forth in this
Agreement, neither of them shall hereafter incur any liability
whatsoever for which the estate of the other may be liable. Each
party shall indemnify and hold harmless the other party for and
against any and all debts, charges and liabilities incurred by
the other after the execution date of this Agreement, except as
may otherwise specifically provided for by the terms of this
Agreement.
16. Each party shall, at any time and from time to time
hereafter, take any and all steps and execute, aCknowledge and
deliver to the other party any and all further instruments and/or
documents that the other party may reasonably require for the
purpose of giving full force and effect to the provisions of this
Agreemellt.
17. This Agreement shall be construed in accordance with the
laws of the Commonwealth of Pennsylvania which are in effect as of
the date of execution of this Agreement.
18. This Agreement shall be binding and shall inure to the
benefit of the parties hereto and their respective heirs,
executors, administrators, successors, and assigns.
19. This Agreement constitutes the entire understanding of
the parties and supercedes any and all prior agreements and
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negotiations between them. There are no representations or
warranties other than those expressly set forth therein.
20. Wife and Husband convenant and agree that they will
execute any and all written instruments, assignments, releases,
satisfactions, deeds, notes of such other writings as may be
necessary or desirable for the proper effectuation of this
Agreement.
21. This Agreement shall remain in full force and effect
unless and until terminated under and pursuant to the terms of
this Agreement. The failure of either party to insist upon strict
performance of any of the provisions of this Agreement shall in no
way affect the right of such party hereafter to enforce the same,
nor shall the waiver of any default or breach of any provision
hereof be construed as a waiver of any subsequent default or breach
of the same or similar nature, nor shall it be construed as a
waiver of strict performance of any other obligations hereof.
22., It is expressly understood and agreed by and between the
parties hereto that this Agreement may be specifically enforced by
either Husband or Wife in Equity, and the parties hereto agree
that if an action to enforce this Agreement is brought in Equity by
either party, the other party will make no objection on the
alleged ground of lack of jurisdiction of said Court on the ground
that there is an adequate remedy at law. The parties do
not intend or purport hereby to improperly confer jurisdiction on
a Court in Equity by this Agreement, but they agree as provided
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herein for the forum of equity in mutual recognition of the present
state of law, and in recognition of the general jurisdiction of
Courts in Equity over agreements such as this one.
23. If any term, condition, clause or provision of this
Agreement shall be determined or declared to be void or invalid
in law or otherwise, then only that term, condition, clause or
provision shall be stricken from this Agreement and in all other
respects this Agreement shall be valid and continue in full
force, effect and operation. Likewise, the failure of any party to
meet his or her obligations under anyone or more of the
paragraphs herein, with the exception of the satisfaction of the
conditions precedent, shall in no way avoid or alter the remaining
obligations of the parties.
IN WITNESS WHEREOF, the parties have set their hands and seals
written.
WITNESS'
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WILLIAM B. MAURER,
: IN THE COURT OF COl\1MON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiffi'petitioner,
v.
: NO: 3301 Civil 2000
: CIVIL ACTION - LAW
LINDA MAURER,
: IN DIVORCE
DefendantfRespondent.
ORDER
AND NOW, this /AJ; day of f)r;.etl/l7>itfAJ ,2000, upon Petition of
William B. Maurer, a Rule is hereby issued upon the Respondent, Linda Maurer, to
show cause why, if any, she should not be in contempt of a Court Order dated
August 16, 2000.
RULE RETURNABLE the .;l '/fIJ day of (1.(M-nhn ,2000 , at
/OiCID
o'clock ~.m., in Courtroom No. 'f ' of the Cumberland County
Courthouse, One Courthouse Square, Carlisle, Pennsylvania.
BY THE COURT:
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WILLIAM B. MAURER,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
PlaintiIDPetitioner,
v.
: NO: 3301 Civil 2000
: CIVIL ACTION - LAW
LINDA MAURER,
: IN DIVORCE
Defendant/Respondent.
PETITION FOR CONTEMPT
AND NOW, comes the Petitioner, William B. Maurer, by and through his
attorneys, Mancke, Wagner, Hershey & Tully, and files the following Petition for
Contempt:
1. Your Petitioner, William B. Maurer, is the Defendant in the above-
captioned matter having filed a Petition on or about May 4,2000, for the
enforcement of a Divorce Settlement Agreement entered into by and between the
parties, dated January 22, 1999.
2. The Respondent, Linda Maurer, is the Defendant in the action that was
filed in the above-referenced Petition.
3. As a result of the aforementioned Petition, the Court of Common Pleas of
ClUllberland County conducted a hearing, and on August 16,2000, entered an Order
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directing that the Respondent herein comply with the tenns of the Agreement
entered into by and between the parties dated January 22, 1999, a copy of said
Order is attached hereto, incorporated herein by reference, made a part hereof, and
marked as Exhibit A
4. Since August 16, 2000, the Respondent has failed to pay any monies
which were directed to be paid pursuant to the August 16,2000, Court Order.
5. The August 16, 2000, Court Order directed and ordered the Respondent to
comply with the tenns of a Divorce Settlement Agreement entered into by and
between the parties which provided for payments of money by the Respondent.
6_ Respondent has offered no reasons at all for noncompliance with the Court
Order.
7. As a result of the noncompliance with the Order, Petitioner herein has
incurred legal fees in the amount of $350.00 for preparation of this Petition and
attendance at a hearing for enforcement thereon.
WHEREFORE, Petitioner prays this Court to grant an Order directing that
the Respondent be held in contempt of court, that she comply with the Order of
August 16,2000, which requires compliance with the Divorce Settlement
-2-
Agreement dated January 22,1999, and further be directed to reimburse the
Petitioner herein for all costs and fees incurred as a result of this Petition.
Respectfully submitted,
Mancke, Wagner, Hershey & Tully
By
:R. 'char agner, Esquire
LD. #23103
2233 North Front Street
Harrisburg, P A 17110
(717) 234-7051
Attorneys for Petitioner
Date: J 1111 / ~IJ
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VERIFICATION
I verify that the statements made in the foregoing
document are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.e.S.
Section 4904, relating to unsworn falsification to authorities.
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DATE:
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WILLIAM B. MAURER
,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Ys.
00-3301 CIVIL
CIVIL ACTION - LAW
LINDA MAURER,
Respondent
ORDER
AND NOW, this Ir..-
day of August, 2000, following hearing and careful
consideration of the testimony adduced, it is ordered and directed that the respondent, Linda
Maurer, comply with the terms and conditions of the agreement of the parties dated January 22,
1999. The request of the petitioner for counsel fees is DENIED.
BY THE COURT,
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P. Richard Wagner, Esquire
For the Petitioner
Karl E. Rominger, Esquire..
For the Respondent
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TRUE COPY FROM RECORD
In Testimony whereof. t Ilefe unto set my hand
ant;: the seal of said Court at CirIisle. Pa.
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WILLIAM B. MAURER,
Petitioner
vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
00-3301 CIVIL
CIVIL ACTION - LAW
LINDA MAURER,
Respondent
ORDER
AND NOW, this If."
day of August, 2000, following hearing and careful
consideration of the testimony adduced, it is ordered and directed that the respondent, Linda
Maurer, comply with the terms and conditions of the agreement of the parties dated January 22,
1999. The request of the petitioner for counsel fees is DENIED.
BY THE COURT,
P. Richard Wagner, Esquire
For the Petitioner
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Karl E. Rominger, Esquire
For the Respondent
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BETH DREBOT,
Plaintiff
vs,
THE COURT OF COMMON PLEAS OF
DAUPHIN COUNTY, PENNSYLVANIA
No. 273 S 1999
THOMAS ALLEN DREBOT,
Defendant
CIVIL ACTION - AT LAW
CUSTODY
ORDER OF COURT
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AND NOW, this;{LJ day of I r {{(.II' t t, ,1999, upon consideration of the
within Petition to Enter Stipulation as an Order of Court, the Petition is hereby granted.
BY THE COURT:
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BETH DREBOT,
Plaintiff
THE COURT OF COMMON PLEAS OF
DAUPHIN COUNTY, PENNSYLVANIA
vs,
No. 273 S 1999
THOMAS ALLEN DREBOT,
Defendant
CIVIL ACTION - AT LAW
CUSTODY
. PETITION TO ENTER STIPULATION AS ORDER OF COURT
AND NOW, come the parties, Beth Drebot and Thomas Allen Drebot, and
,respectfully request the following Stipulation to be entered as an order of court:
, WHEREAS the parties, Beth Drebot (the Motther hereinafter) and Thomas Allen
Drebot (the Father hereinafter), have born to them two children, namely Kyle Thomas
Scott Drebot, born October 12,1998, and Jessica Marie Drebot, born June 24,1994;
and
WHEREAS, the parties wish to enter into an agreement relative to custody,
partial custody, and visitation of the children; and,
WHEREAS, both parties have been provided an opportunity to review the
Agreement with the counsel of their choice prior to signing,
THEREFORE, in consideration of the mutual covenants, promises, and
agreements as hereinafter set forth, and intending to be legally bound, the parties
agree as follows:
1. Phvsical CustodvNisitation The Mother shall have primary physical custody
of the children, The Father shall have partial custody and/or visitation of the
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children, to include every other weekend beginning on Friday at 5:00 p.m.
through Sunday at 7:00 p.m" provided that Father gives notice to Mother by the
Wednesday preceding the weekend that he will be exercising his visitation
rights, This schedule shall commence the second weekend following the date of
th,is agreement and every other weekend thereafter. The Father may exercise
additional periods of visitation with the children at such other times as the parties
may mutually agree. It is understood that during Father's hunting season and/or
Mother's National Guard Service, the parties shall alter the above as to
switching of weekends as needed in light of each parent's respective weekend
schedules, Father and Mother shall give each other adequate notice of
weekends they will not be available so the date of a make-up weekend can be
discussed.. Mother shall provide clothing apparel, medicine, bottles, and any
other items the children require during visitation with Father, provided that items
are returned with the children at the conclusion of their visit with Father.
2. LegID Custodv The parties shall share legal custody of the children jointly.
They shall consult with each other relative to all important decisions concerning
the children, including such matters as health, education, and religion.
Therefore, although Mother has primary physical custody of the children, and
Mother shall have authority to make routine decisions regarding the welfare of
the children, each parent agrees to consult with the other on all non-routine
decisions (to be defined as those decisions with a greater than a day to day
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effect, including, but not limited to, such matters as surgery, major medical
treatment, and selection of schools) with a view to having a harmonious policy
calculated to promote the best interest of the children, If a dispute arises as to
any matters regarding non-routine decisions regarding the children, then Mother,
who has primary physical custOdy of the children, may exercise final
determination subject to review by a court of competent jurisdiction. Each of the
parties shall have access to all the children's medical, dental, hospital, and
school records, including test results and report cards; each parent shall permit
and encourage communication by the other parent with doctors, teachers, and
school administrators regarding the children's health and education progress.
Each of the parties shall be provided with schedules of school events and
athletic events when available, or in the alternative, provide two weeks notice to
the other party that such an event is upcoming. Mother agrees to notify Father
of any parent-teacher conferences, changes in school curriculum, or other
similar event relating to the children, In addition, both parents are entitled to
portrait and class school pictures,
3. Babvsittina - Both Mother and Father shall have the right of first refusal to
babysit the children if the other is unavailable during their period of
custody/visitation, Each party agrees to notify the other of periods of time during
their scheduled custody or visitation periods that they will not be available so
that the other can advise whether or not they intend to exercise their right to
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babysit. If the other party is also unavailable, the party during whose period of
custody or visitation is unavailable shall make alternative arrangements for
babysitting with the babysitter of their choice,
4. Summer Vacation Both Father and Mother shall each be guaranteed one
unif")terrupted week of exclusive custody of the children during the summer in
.1999, Beginning in the summer of 2000, both Father and Mother shall each be
guaranteed two one-week periods of exclusive custody of the children during
, each summer. The parties shall notify each other of the dates intended to
exercise these vacation periods by June 1st of each year. Additional periods of
partial custody during the summer.may be exercised upon agreement of the
parties. It is understood that Mother intends to exercise her week in 1999 from
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June 28 through July 5 ,
5. Maior Holidavs The parties shall alternate the following holidays:
Independence Day (from 9:00 a.m, until 10:00 p,m.), Thanksgiving Day (from
9:00 a,m. until 9:00 p.m,), Friday after Thanksgiving (from 9:00 a.m. until 9:00
p,m,), Christmas Eve (from December 24th at 12:00 p.m, through Christmas Day
at 12:00 p.m,), Christmas Day (from December 25th at 12:00 p.m. until December
26th at 12:00 p.m.), New Year's Eve (from 5:00 p.m. December 31st through
12:00 p.m, January 1st), New Year's Day (from 12:00 p,m, until 9:00 p,m.;
whereby Mother shall have the first holiday following the signing of this
agreement, and alternating holidays accordingly thereafter, This section shall
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supersede any other section contained in this agreement. This section may be
changed or modified upon agreement by both parties,
6. Easter Each year, Mother shall have the children for traditional Easter weekend
(Good Friday at 5:00 p.m. through Easter Sunday) and Father shall have the
chil~ren for Orthodox Easter (Good Friday at 5:00 p,m. through Easter Sunday
at 9:00 p.m,), For those years on which traditional Easter and Orthodox Easter
fall on the same weekend (once about every 7-9 years), Mother agrees to
liberally allow the children to attend church services with Father and his family.
7. Mother's Dav/Father's Dav Mother's Day shall be with Mother; Father's Day
shall be with Father, This visitation shall be from 9:00 am, until 9:00 p,m,
8. Children's Birthdavs The parties shall share the children's birthdays in as
equal a manner as possible, allowing each parent to spend sufficient time with
each child on his or her respective birthday,
9. Labor Dav/Memorial Day Weekends The parties agree that whoever's
weekend custody of the children falls on the weekend before Labor Day and/or
Memorial Day, that person may keep the children until 9:00 p,m, on the holiday
instead of returning them on Sunday,
10. Transportation The parties agree that transportation to and from their
residences shall be shared, the details of which can be agreed upon by the
parties. In the event the parties cannot agree, Mother shall drop off the children
at Father's residence at the beginning of Father's weekend custodial periods,
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and Father shall drop off the children at Mother's residence at the end of
Father's weekend custodial periods, All other transportation shall be provided
by Father.
11. Alcohol/Tobacco/Druas During any period of custody or visitation, the parties
shall not possess or use any c.ontrolled substance, neither shall they consume
. alcoholic beverages to the point of intoxication, nor shall they smoke tobacco
indoors in the presence of the children. The parties shall likewise assure, to the
extent possible, that other household members and guests comply with these
prohibitions and limitations,
12. Death or Disabilitv In the event of either party's death or significant and long-
term disability rending the person incapable of caring for the children, then
custody shall automatically vest in the other party,
13. Address and Phone Numbers of Parties Both Father and Mother must keep
each other informed of any changes of address or change of phone number.
Any changes in address or phone number shall be immediately forwarded to the
other party,
14. Notice of Whereabouts/Illness Each party agrees to keep the other
reasonably informed of the whereabouts of the children while with the other
party. If either party has knowledge of illness or accident or other serious
circumstance affecting the welfare of the children, he or she shall promptly notify
the other party of said circumstances,
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15. Teleohone Contact with Children Both Parties shall have the right to
reasonable telephone contact with the children during the other party's period of
custody/visitation, Neither party shall interfere with the other party's telephone
contacts with the children, Each party shall make all reasonable efforts to
pr?mptly return calls or messages left by the other party regarding the children,
16.. Disoaraaina Remarks Neither Father nor Mother shall make any disparaging
remarks regarding the other parent in the presence of the children, such as
those that might tend to alienate the affections of the children toward the other
parent. Also, each parent shall inform relatives and friends to also refrain from
making any disparaging remarks regarding either parent in the presence of the
children,
17. Suoersedeas of Prior Court Orders Ttlis Stipulation shall supersede all prior
Court Orders, Stipulations, or Agreements,
18. ContemotlAttornev's Fees Should either party be found in Contempt of Court
for breaching this agreement, the breaching party shall be responsible for all
attorney's fees incurred by the non~breaching party.
19. Modification Any of the provisions of this Agreement may be modified or
deleted upon mutual consenUagreement of both parties or upon Petition to the
Court for Modification,
WHEREFORE, the parties, intending to be legally bound, and with the desire
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that this Agreement be entered as an order of court, hereby set their hands and seals
and the date of their acknowledgment.
v~M~.1A
Beth Drebot
'1:4.m1'W IUL iluh-
Thomas Allen Drebot
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Date
3-17-99
Date
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WitJ1ess
IiIi
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WILLIAM B. MAURER,
Petitioner
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v,
NO, 2000-3301 CIVIL
LINDA MAURER,
CIVIL ACTION - LAW
Respondent
IN DIVORCE
BRIEF OF RESPONDENT
Karl E. Rominger, Essquire
Attorney for Respondent
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ill # 81924
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ARGUMENT
WILLIAM MAURER'S FAILURE TO DISCLOSE IDS EXTRAMARITAL
AFFAIR AND SUSPICION OF HAVING AN ILLEGITIMATE CHILD
REPRESENT FRAUD IN THE FORMATION OF THE PROpERTY
SETTLEMENT AGREEMENT CAUSING AN UNINTELLIGENT WAIVER OF
LINDA MAURER'S POSITION OF STRENGTH IN THE SETTLEMENT
It is the position of Linda Maurer that William Maurer obtained the divorce and
settlement property agreement through extrinsic fraud. The elements of fraud are:
(1) a misrepresentation;
(2) a fraudulent utterance;
(3) an intention by the maker that the recipient will thereby be induced to act;
(4) justifiable reliance by the recipient upon the misrepresentation;
(5) damage to the recipient as the proximate result.
Delhanty v. First Pennsylvania Bank, 318 Pa.Super. 908, 464 A.2d 1243 (1983).
The allegation of fraud or misrepresentation is similar to the issue of non-disclosure as
recognized in the landmark case of Simeone. Simeone v, Simeone, 525 Pa. 392, 581 A.2d
162 (1990).
William Maurer misrepresented the fact that he had engaged in an adulterous affair
for three years and suspected that he had a child as a result of that illicit relationship by
failing to mention these highly relevant facts at the time of the property settlement. By
affirming the following language, "Whereas, diverse and unhappy differences, disputes and
difficulties have arisen between the parties," as an explanation for the divorce and grounds
for the property settlement agreement, William Maurer made a fraudulent statement.
Divorce Settlement Agreement, 1/22/99, pl. This language does not incorporate infidelity
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and the siring of an illegitimate child as reasons necessitating the property settlement
agreement. The exclusion of these facts of paramount importance, and the replacement of
them by mention only of differences, disputes, and difficuhies, represents a fraudulent
utterance underlain by the intention on the part of William Maurer that Linda Maurer be
, .
induced to affirm the agreement. Linda Maurer justifiably relied on the misrepresentation
in her assent to pay fifty-percent of their joint debt. The damage to Linda Maurer
manifests itself in the substantially diminished bargaining position William Maurer unfuirly
harnessed her into by his misrepresentation.
This court should exercise its equitable jurisdiction under the Divorce code and
open this property settlement agreement. This court should not reward William Maurer's
grossly unfair tactic of hiding his marital transgressions in order to obtain a favorable
property settlement. Given this court's equitable powers under Title 23 and ability to
open a decree based on 23 Pa.C.S.A. 3332, the decree should be opened and a settlement
agreement based on fair and full disclosure can and should be reached. William Maurer's
gross misrepresentations should not be rewarded.
William Maurer is currently being rewarded for his fraudulent statements through a
property settlement that treats both he and Linda Maurer as equally responsible for their
divorce. This court should remedy this manifest lack of fairness and disclosure.
THE JURISDICTION OF TilE COURT THAT GRANTED THE
MAURER'S DIVORCE IS NOT CLEARLY ESTABLISHED ACCORDING TO
THE VENUE REQUIREMENT AS A BASES FOR JURISDICTION AND
THE INCORPORATED PROPERTY SETTLEMENT AGREEMENT
IS UNENFORCEABLE
A court granting a divorce shall determine that venue is proper on the basis of the
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residence(s) of the married couple. 23 Pa.C.S.A. 3104(e). According to the Pennsylvania
statute, venue is proper only where either the plaintiff or defendant resides. ld.
We recognize that the Pennsylvania Ru1es of Civil Procedure allow for the
establishment of venue by agreement of the parties as evidenced by their participation in a
divorce proceeding. Pa.R.C.P. 1920.2(2)(ii). The rule, however, does not specny what
participation is required to show consent (Pa.R.C.P. 1920.2 Explanatory Comment). The
rule seems to allow participation to establish personal jurisdiction, and respondent thus
submits that it does not control here.
Recognizing that statutory jurisdiction sets a higher threshold for its compliance is
a dist~tion of paramount importance. Proper venue represents a statutory element of
subject matter jurisdiction. Compliance with 23 Pa.C.S.A. 3104( e) is a mandatory
requirement for a court of common pleas to have subject matter jurisdiction. The venue
limits of23 Pa.C.S.A 3104(e) are therefore essential to vest subject matter jurisdiction in
the Cameron County Court. The divorce decree and settlement thus fuil.
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Karl E. Rominger
i\.ttomey for Respondent
155 South Hanover Street
~arlisle, P A \ 70 13
~\Ipr\(me CQurt l.D. # 81924
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WILLIAM B. MAURER,
Petitioner
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2000-3301 CIVIL
LINDA MAURER,
CIVIL ACTION - LAW
Respondent
IN DIVORCE
CERTIFICATE OF SERVICE
I, Karl E, Rominger, Esquire, attorney for Linda Maurer, do hereby certifY that I ~his day
served a copy ofthe Brief of Respondent upon the following by depositing same in the United
States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows:
p, Richard Wagner, Esquire
Mancke, Wagner, Hershey & Tully
2233 North Front Street
Harrisburg, P A 17110
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Ki ,ominger, Esquire
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Dated: August 8, 2000
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WILLIAM B. MAURER,
Plaintiff/Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V
CIVIL ACTION - LAW
NO. 00-3301 CIVIL TERM
LINDA MAURER,
Defendant/Respondent
IN DIVORCE
IN RE: PETITION FOR CONTEMPT OF COURT
ORDER OF COURT
AND NOW, this 27th day of December, 2000, following
hearing, a contempt citation is issued against the defendant.
She is ordered and directed to show cause why she should not be
adjudicated in contempt. Further proceedings in this matter to
be held on Tuesday, January 19, 2001, at 10:00 a.m.
By the Court,
P. Richard Wagner, Esquire
For the Plaintiff/Petitioner
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J.
Karl Rominger, Esquire
For the Defendant/Respondent
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