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HomeMy WebLinkAbout97-00067 \ ~ ~ ..... ~ . ~ ~ ~ ~ ~ ~ ~ ~ " ...(: .3 {' ~ ~ ....... . .::l t'- -.5 /' ~ ~ ~ -, /tJ Cd I J' .~ l' ~ _> ,~.~.J "..2j' ~7X'<'A ,<<- ,~ "" 3 8W . /.f.:ft.c p,,):~/ ~ "'1 /~I . SEPARATION AND PROPERTY SE'ITLEMENT AGREEMENT TillS AGREEMENT Made this IIIJ day of March, 1998, by and hctwcen I\IMUERLY WIIITAKER (hereinafter referred to as WIFE) and MICHAEL WIIITAKER (hercinafter referred to as HUSBAND); WITNESSETH: WHEREAS, the parties hereto were married on February 9, 1990, in Carlisle, Cumberland County, Pennsylvania; have been and are HUSBAND and WIFE; and as a result of this union, two children were born to wit: JOSHUA M. WHITAKER, born March 23, 1991 and ZACHARY W. WHITAKER, born January 12, 1995, hereaflcr referred to as the "children." 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 sellling fully and finally their respective financial and property rights and obligations as betIVeen each other, including, without limitation by specification; the sellling of all mailers between them relating to the ownership and equitable distribution of real and personal property; sellling of all mailers between them relating to the past, present and future support and/or maintenance of the WIFE, the sellling of any and all claims and possible claims by one against the other or against their respective estate. NOW, THEREFORE, in consideration of the premises and of the mutual promises, wvenants and undertakings hereinafter set forth and for other good and valuable consideration, receipt of which is hereby acknowledged by each of the parties hcreto. WIFE and HUSBAND, cach intending to be legally bound, hereby covenant and agree as follows: I, AGREEMENT NOT A BAR TO DIVORCE PROCEEDINGS: This Agreement shall not be considered to affect or bar the right of WIFE or HUSBAND to a limited or absolutc divorce on lawful grounds as such grounds now exist or shall herealkr exist or to such defense as may he availahle III either parly. This Agreemclll is nut intended to condone and shall not be deemed to hc a condonation un thc pari of either party herelll of any act or acls on the pari of thc other parly which have occurrcd prior III the date hcreof. The parties illlend to secure a mutual conselll divorce, 2. EFFECT OF DIVOIKE DECRE];: The parties agree that unless otherwise specilkally provided herein, this Agreement shall colltinue in full force and effect aftcr such time as a final dccree in divorce may be entered with respeclto the pmties, 3. MiREEMENT TO BE INCORPORATED IN DIVORCE DECREE: The parties agree that thc terms of this Agreement shall be incorporated illlo any divorce decree which may be elllered with respect to them. 4. SEI'ARATIO!,!: II shall be lawful for each party at all times hereafter to live separate and .Iparl from Ihe other party as such place as he or she may from time to lime choose or deem fit. The foregoing provisions shall not be taken as an admission on the pari of either party of the lawfulness or unlawfulness of the causes leading to their living aparl. 5. INTERFERENCE: Each parly shall be free from illlerference, authority, and contact by the other, as fully as if he or she were single and unmarried except as may be necessary to carry out the provisions of this Agreement. Neither parly shallmolcst the other or attempt to endeavor to molest the other, nor compcllhe other to cohabit with the other, or in any way harass or malign the other, nor in any way illlerfere with the peaceful existence, separate and apart from the other. 6. WIFE'S DEBTS: WIFE represellls and warrants to HUSBAND that since their, she has not and in the future shc will not contract or incur any debt or liability for which HUSBAND or his estale might be responsible and shall indemnify and save harmless HUSBAND from any and all claims or dcmands made against him by reasons of debts or obligations incurred by her. 7, HUSBAND'S DEBTS: HUSBAND represellls and warrallls to WIFE that since their separation he has not and in the future he will nnt contract or incur any debt nr liability for which WIFE or her estate might be responsible and shall indemnify and save harmless WIFE from any and all daims or demands made against her hy reasnn of debts or ohlig,llions incurred by him. H. MUTUAL RELEASE: Suhject to the provisions of this Agreemelll, each pany has released and discharged, and hy this Agreemelll docs for himself or hersell' and his or her heirs, legal represenlatives, executors, adminislrators and assigns, release and discharge the olher of and from all causes of action, claims, righls, or demands, whatsoever in law or eCJuity, which either of the panic, ever had or now has against the other, except any or all cause or causes of action for divorce and except any or all causes of action from hreach of any provisions of this Agreemelll, 9. REAL PROPERTY: The marital home at 322 Juniper Slreet, Carlisle, Cumberland County, Pennsylvania shall be the propeny of the WIFE, together with any lien thereon. The WIFE shall within sixty (60) days of execution of this agreemelll, refinance the home solely illlo her own name, or alternatively, arrange with the existing lender a release of liability for the HUSBAND on the mongage. The panics shall sign and execute any and all documellls to effectuate this transaction including the HUSBAND's execution of a deed waiving any and all illlerest that he has in this propeny. Wife shall indemnify and hold HUSBAND harmless from any liability arising from any lieu or mongage encumhering this propeny, 10. DIVISION OF PERSONAL PROPERTY: (a) The panics have heretofore divided their personal propeny to their mutual satisfaction, Heneefonh, each of the panics shall own, have and enjoy, independelllly of any c1,lim of right of the other pany, all items of personal propeny of every kind, nature and description and wheresoever situated, which arc now owned or held by or which may hereafter belong to the HUSBAND or WIFE respectfully, with full power III the HUSBAND or the WIFE to dispose of same as fully .md effectually, in all respects and for all purposes .IS if he or she were unmarried. All items of personal property shall he divided he tween the ;larties as provided herein: (b) Pl~rsonal Effects: All items of personal effects such as, but not limited to: jewelry, luggage, sports equipment, hobby collections and books, but not including furniture or any properly. persolial or otherwise specifically disposed of pursualllto this .Igreemelll, shall hecome the absolute and sole property of that party who has had the principal use thereof or 10 whom the property was given or for whom it was purchased, and each party hereby surrenders any interest he or she nUlY have in any such tangible personal property of the other. Certain items of personal property that remain in the possession of the WIFE and shall be turned over to the HUSBAND within sixty (60) days of the execution of this document. These items of personal property arc specified in Exhibit" A" to this agreemelll , (c) Illlangible Personal Property (other than I.ife Insurance): The parties agree III a dislrihution of illlangible personal property as set forth in Exhibit "Il" of this agreemelll. The panics agree that any cash and sums on deposit in checking and savings accounts (owned by either or hoth parties). that have not been set forth in Exhibit "13". have heen divided to the mutual satisfaclion of the pan ies. (d) Military Pension: The HUSBAND recognizes that his military pension is a propeny assel divisible as part of this property settlement agreement. Accordingly, the HUSBAND agrees thaI (10.63%) of his disposahle military pension shall he the sole and exclusive property of the WIFE, The HUSBAND further agrees that he shall obtain and maintain in full effect and force, irrevoc.lhly, the Survivor's Benefil Program in an amoulll as currelllly clected for the benefit of the WIFE. The panies shall exeeute any and all doeuments including a Qualified Domestic Relations Order to authorize Ihe military to divide Ihe pension aecordingly and makc direct paymcnts to each party. The parties shall equally share in the costs of actuarial analysis performed hy Conrad Siegcl. Inc. The parties agree that the WIFE has paid $425,00 to Conrad Siegel, Inc.. and HUSBAND shall reimhurse her for one.half of that charge within sixty (60) days of execution of this document. Counsel for IIlJSIlAND shall prepare any and all documellls relating 10 the Qualified Domestic Relations Order ;111(1 shall suhmit these documellls to opposing counsel for his approval prior to filing with the Court and submission to appropriate authorities. (e) Motor Vehicles: HUSBAND shall maintain possession of the 1996 Honda Accord and shall he solely responsihle for any lien thereon. WIFE shall maintain possession of the 1988 Honda and shall he solcly responsible for any lien thereon, Each party indemnifies and holds harmless Ihe other from any and all liability ineidentalto any encumbrance or debt owed on Ihese vehicles. (I) Debts: The HUSBAND shall be responsihle for all existing dehts and liabilities incurrcd in his own name prior to the separation. The WIFE shall be responsible for all existing debts and liabilities incurred in her own name prior 10 the separation. (g) The parties further agree that neither will incur any future debts for which the Dlher may be held liable, and if either party incurs a debt for which the other will be liable, Ihat party incurring such debt will hold the other harmless from any and allliahility thereon. II. AFTER ACQUIRED PERSONAl. PROPERTY: Each of the parties shall hereafter own and enJoy. indcpcndently of any claims or right of the other, all items of pcrsonal property, tangihle or intangihle. hcrcafter acquircd by him or her. with full power in him or her to dispose of the same as fully and effectivcly, in all respect and for all purposes. as though he or she were unmarried. I~, CIISTODY: The parties shall sharc legal cuslOdy of thc minor childrcn. The WIFE shall mainlain primary physical cuslody of Ihc minor children. Thc IIUSBAND shall have partial physical custody of lhe minor childrcn with a schedulc of minimum visitation wilh Ihe children 10 include .,., , allcrnating wcekcnds at dates and limcs as the parties may agrcc. Thc partics furthcr agree that IIUSBAND's periods of partial physical custody shall be atthosc olher times as may he mutually agreed upon lJy the parties. The parties anticipate lhat thc HUSBAND shall hc pcrmittcd regular access during 13. CIIILD SUPPORT: Thc IIUSBAND agrecs 10 pay 10 Ihe WIFE, the sum of $480.00 pcr each wcc!.; with the children 10 include "after school" pcriods of p.trlial physical cuslody. The parties shall allocate periods of physical custody on lhe holidays and cXlcnded periods of cuslody during summers as Ihey may agrce. monlh for the maintcnanee and support of lhe childrcn during the pcriod whcn the children arc in the WIFE's cuslOdy. Payments shall bc made directly to WIFE who, at her option, may filc for support wilh the Domestic Relations Officc or any othcr child support enforccl11enl office. So long as HUSBAND has continucd to makc payments in a limcly fashion, Ihe WIFE waives seeking 10 have HUSBAND's support payments attaehcd from eithcr his cmploymcnt paycheck or mililary pcnsion, In the cvcnt thai HUSBAND fails to make limely paymcnls. this agrecmcnt shall not constilute a waiver of the WIFE's abilily 10 pursuc contcmpt charges .Igainsl HUSBAND. Thc parties rescrve thc righllo modify this support amount and rescrve lhc righl to seck modificalion of this support amount by appropriatc pClition Wilh any court. IIUSBAND shall maintain medical insurance upon lhc children. and lhe panics agree thai they shall bcar equally in any expcnse Ihat IS not covercd by mcdical IIlsurance, 14, COUNSEL FEES: Each party shall pay his or her eounscl fees and expcnscs. ~ ~ 15. INStJRANCE POLICIES: The pallies agree that the following policies shall be maintained in full force and cffeet and tbe proceed from these policies shall be made payable to a trust iu tbe benefil of the two minor children. The parties agree to cxecute any and all documellls necessary to creale and mailllain this trust. The policies to be incllJ(it'd in this trust documelll shall include: (a) HUSBAND's poliey incidelll to his military retirement (SHP): (b) HUSBAND's insurance policy incident to his CUllelll employment; (c) WIFE's policy arising from her Luthcran Brothcrhood retirement; (d) WIFE's policy incident to her current employment. Counsel for the WIFE sh.1l1 be responsible for preparation of the appropriate trust documents designating the Financial Trust Corporation as trustee of these sums, Couusel for the WIFE shall provide opposiug counsel with copies of any and all such documents prepared prior to their filing with lhe Court or submission to appropriate authorities. 16. DIVORCE: The parties hereto agrce 10 enter into a mutual conselll divorce. WIFE agrees to pursue the divorce and 10 be the Plaintiff therein. HUSBAND agrees to sign Ihe necessary documellls, including an Affidavit of Couselll aud further instruments thaI may be reasonably required to give full force and effeclto the provisions of this Agreement. 17. WAIVER OF CLAIMS: Except as herein otherwise provided, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she shall now have or hereafter acquire, under the preselll or future laws of any jurisdiction, to share in the property or the estate of the other as a result of the marital relationship, iucluding without Iimilation. dower. courtesy, slatutory allowance, widow's allowance, right 10 take iu illlestacy, right 10 take against the Will of the other, and right to aet as admiuistrator or executor of the other's estate, aud each will, at the request of the other, execute, acknowledge and deliver any and all instrumellls which may Ill' IIL'cessary or advisahle to carry into cI kcl this mulllal waiver and relinquishment of all such iuterests. ri~hts aud claims. IX, IlREM:I!: If either pany hreaches any provision of this Agreement, the olher pal'll' shall have the right, al his or her ekclitln, III sue for dama~es for sueh breach or seek sueh other remedie, or rei il'f as may be available to bim or her. and the pal'll' hre,lchin~ this conlracl shall be responsible for paymenl of legal kes and costs incurred by Ihe other inl'nforcing their rights under this Agreement. II). VOIILCl,j\ll~I':S: If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or olherwise, then only that term, condition. clause or provision shall be stricken from this Agreement and in all other respects this agreement shall be V<tlid and continue in full force, effect and operation, 20. PESCRII'TIVE 1I1.,A.DIN{ili: The descriptive headings used herein are for convenience only. They shall have no effect whatstlcver in determining the rights or obligations of the panics, 21. INDEPENDENT SEPARATE COVENANTS: It is specifically understood and agreed by and between the panics hereto that eaeh paragrapb hereof shall be deemed to he a separate and independent covenant and agreement. 22. ADDITIONAL INSTRlJMENTS: Each of the parties shall from tim~ to time, atlhe requesl of the other, execute, acknowledge and deliver to the other party any and all funher instruments that may he reasonahle required to give full force and effect to the provisions of this Agreement. 2:\, APPLICABLE I.A W: Tbis Agreement shall be construed under the laws of the Commonwealth of Pennsylvania and more specifically under the Divorce Code of 1980. 24, AGREEMENT BINDING ON HEIRS: This Agreement shall be binding and shall inure to the benefit of the panies hereto and tbeir respective heirs, executors, administrators, successors and assigns. 25. ENTIRE AGREEMENT: Tliis Agrccmcnt contains tlic clllire understanding of the partics t t and thcrc arc no rcprescntations, warranties, covcnants or undertakings othcr than those expressly set fonh herein. 26. MODIFICATION AND WAIVER: A modification or waiver of any of Ihc provision.s of this Agrecment shall be cffcctive only if made in writing and cxecuted with Ihc same formality as this Agrecmcnt. Thc failurc of eithcr pany to insist upon strict pcrformance of any of thc provisions of this Agrecment shall not bc construcd as a waiver of any subsequcnt dcfault of the samc or similar nature, 27, WAIVER OF RICilITS: The panics hereto have been informed of thcir rights or have been advised to scek counscl to inform thcm uf their righls under and pursuant to the Divorce Code, Act uf April 2, 1980, Numbcr 1980.26, panicularly the provisions for alimony, alimony pcndente lite, equitable distrihution of marital propeny, counsel fees or expenses. Both panics agree that this Agreement shall conclusively provide for the distribution of property under the said law and hereby waive, rclease and relinquish any funher rights they may respcctively have against the other for alimony, alimony pendente lite, equitahle distribution of marital propeny, counsel fees or expenscs. !'rom the date hereof, each pany may acquire either pcrsonal or real property in their own name. Any propeny so acquired shall he owned solcly hy the individual and shall not bc suhject to any claim whatsoevcr hy the other pany. 28. EXECUTION OF DOCUMENTS: Both panics hereby agree 10 execute any documents required to implement this Agreement. 29. FINANCIAL DISCLOSURE: The panics confirm that they have relicd on the substantial accuracy of the financial disclosure of the other as an indueemelllto the execution of this Agreement. j i IN WITNESS WHEREOF, the panics hereto have sel their hands and seals the dale and year first almve written, , Hubert X. Gilroy, Esquire //~ /"; / /( I James 1. Ka er.tqUire / ....J~r....\-,' \', f y( \, 'L+n L\l__ KIMBERLY WHITAKER - /J1..,i . I / if ./ A I ~ ...f Iv cc-/u:; / '-/ MICHAEL WIIITAKER I I \. , ~ on 0 OJ ,., CEO) i; =jJ 'fn :.0 ~I Z~" %~. - rg~; co ,- (j ,) ." oj -,:: :ij '~Cj ~ .'. l'"~O ~ d Joe.- :2 ',-j ~ N $ en -.; KIMBERLY K. WHITAKER, Plaintiff v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-67 - CIVIL TERM MICHAEL W. WHITAKER, Defendant IN DIVORCE PRAECIPE TO TRANSMIT RECORD TO THE PROTHONOTARY: Transmit the record, together with the following information, to the Court for entry of a divorce decree: 1. Ground for Divorce: Irretrievable breakdown under Section (X)3301(c) ()3301(d)(I) of the Divorce Code. (Check applicable section.) 2. Date and manner of service of the Complaint: January 27, 1997 through Defendant's attorney by Acceptance of Service 3. (Complete either paragraph (a) or (b). (a) Date of execution of the affidavit of consent required by Section 3301(c) of the Divorce Code: By Plaintiff: March 11, 199B1 Defendant: March 9, 199B. (b) (1) Date of execution of the Plaintiff's affidavit required by Section 3301(d) of the Divorce Code:____1 (2) Date of service of the Plaintiff's affidavit upon the Defendant: 4. Related claims pending: None. , o i , e .0 ~ (J) -' ::J: :')1 -r' t; "" '~~ rrtp: ;;0 ~~? - ifl ~~;: OJ -:..1 :> -... ,. .:l \ ~~V --0 .l)~ ","~ ~ .~ ::~;~ ~- -- ~~ ;a -C._ ~ N .". :.n U1 -< ~. /-~'~R - ~ ~ "'" ~ <:.-J ~ ............ -.... \...'-.i cJ '-', --l "" - \ .... "<\ ~ -.....J ~ ~ :\; ~\ " ~ , c;;; '--"~ ....... ~) -.. VI -t, '" ,... ~ "'- ~. r' ," () ....J -;\ , - , . .:n ~ ; = . I ~ , :--1 C) ~,,} ,0 ._~ ' :1 , '.~J ., J : ~...l ,I"" . '. J . J I'.) :.J - -;; J " 1. ) , \ I ., ) .. ,. '.> ,"-' q KIf\lIIERI.Y K. WHITAKER. Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA VS. : CIVIL ACTION - LAW : NO. 'l7-67 CIVIL TERM MICHAEl. W. WHITAKER, Dcfcndant : DIVORCE/CUSTODY AFrlDA VIT OF CONSENT I. A Complaint in divorce nnder Section 3301 (c) of the Divorce Code was liIed on January 6. 1997. 2. The marriage of plaintiff and defendant is irretrievably broken and ninety days have elapsed from the datc of liIing the Complaint. 3. I consent to the entry of a final decree of divorce after service of notice of intention to rcqucst entry of the decree. -l. I understand that 1 may lose rights concerning alimony. division of propeny. lawyer's fees or cxpenses if 1 do not claim them beforc a divorce is granted. I verify that the statements made in this affidavit are true and correct. 1 understand that falsc statemcnts herein are made subject to the pelwlties of 18 I'a. C.S. section 4904 relating to unsworn falsification to authorities. Date: March L. 1998 ~J !(J Ir.;'/!ti-- MIC AEL W. WHITAKER C' 'Iv' Sworn to and sub~,rihcd he fore me this L day of March, 1998. .,L - t~,~..c'" {' .1e<-<..lL9'---' Notarial Seal Deanna R. Bankert. Notary Pob Carlisle Boro. Cumberland CO!J~;~ My Commission Expires Ser,l. <' '. Membitr. Pennsylvanl3 AsSOCia!lol: (;1 '~Clle';~~ Notary Public KIMBERLY K. WHITAKER, Pluintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LA W : NO. 'l7-67 CIVIL TERM MICHAEL W. WHITAKER, Dcfcndalll : DIVORCE/CUSTODY WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY or A DIVORCE DECREE UNDER ~ 3301(c) OF THE DIVORCE CODE I. I conselll to thc elllry of a final decrce of divorcc wilhout nOlice. 2. I understand that IlIlay losc rights concerning alimony, division of propcny, lawyl'r's fccs or cxpenses if I do not claim thcm before a divorce is grantcd. 3. lunderSland that I will not be divorced nnlil a divorce decree is elllered hy thc COlm and that a copy of the decrce will bc sent to mc immediately after it is tiled with the prothonotary. I verify that the stalemcnts made in this affidavit are true and corrccl. I nndcrstand that litlse statcmcnts hcrein are made subject to thc pcnalties of 18 Pa. C.S. S 4904 relating to unsworn litlsilication to authorities. DATE: March r, 1998 ~,-~..(J If./ kJfi#/\.-/ MIC AEL W. WHITAKER e ~ ? -\" ::c =t1 tBt/ )" I"~ ;>J -!""i'" - ,:~~ 6,;0: OJ ~,. ~ ' ~~. .... ..,\ :'; (") ~" I '~ - ~. ~ "....{", ' - "t.} '.' J.-C: . ~ -',I N ;;J :'1 ..... ~ -. . . " , , SROU.JOS. GIL.ROY Be HOUSTON. P. Co , ArroNNrrt- AT LAW " NORTH H....NOVIl.. ..,..aKT CARUSL-It. PENNSYL.VANIA '7013 17171 ",.-.41174 7..~'..O 'JAN 0 6 19r;rrJf KIMBERLY K. WHITAKER, Plaint if f v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW MICHAEL W. WHITAKER, Defendant NO. 97 - &7 IN DIVORCE CIVIL A~r~EMPORARY PROTECTIVE ORDER AND NOW, this ~ day of January, 1997, upon presentation and consideration of the within Petition, and upon finding that the Petitioner, Kimberly K. Whitaker, is in inunediate and present danger of abuse from the Respondent, Michael W. Whitaker, the following temporary order is entered: 1 Michael W. Whitaker is hereby enjoined from physically abusing Kimberly W. Whitaker, or placing her in fear of abuse. 2 Michael W. Whitaker is ordered to refrain from having any contact with Kimberly K. Whitaker and from in any way harassing Mrs. Whitaker. 3 Kimberly K. Whitaker is granted exclusive possession of the home at 322 Juniper Street, Carlisle, Cumberland County, Pennsylvania and Respondent Michael W. Whitaker is hereby ordered to leave the mentioned household. r" - r I"n ('<co'.,- 1.._ 'I,; -.. ,I l'~l:,: .,.." nil 1)7..' ." -G ~:i: :1: k'1 ~ , c:~, \: .,. ,', ,I",' h);; ..~';~'..i. . KIMBERLY K. WHITAKER, Plaintiff IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL DIVISION - LAW NO. 97 - 0'1 CIVIL IN DIVORCE PROTECTION FROM ABUSE . . MICHAEL W. WHITAKER, Defendant PETITION FOR PROTECTIVE ORDER FOR RELIEF UNDER THE PROTECTION FROM ABUSE ACT Petitioner, Kimberly K. Whitaker, by her attorneys, Broujos, Gilroy & Houston, P.C., sets forth the following: 1 Petitioner, Kimberly K. Whitaker. is an adult individual, residing at 322 Juniper Street, Carlisle, Cumberland County, Pennsylvania. 2 Respondent, Michael W. Whitaker, is an adult individual, residing at 322 Juniper Street, Carlisle. Cumberland County, Pennsylvania. 3 Petitioner and Respondent were married on February 9, 1990. 4 Petitioner has commenced a divorce action against the Respondent on January 6, 1997 at the above mentioned term and number. 5 Petitioner and Respondent are the natural parents of two minor children, Joshua M. Whitaker, born March 23. 1991 and Zachary W. Whitaker born January 12, 1995 6 The home where the parties reside is jointly owned by Petitioner and Respondent. The mentioned two minor children reside with the parties at the said marital home. 7 Petitioner believes and therefore avers that she is in immediate and present danger of abuse from the Respondent and, in support of these allegations, recites the following events that have taken place: A. On January 5, 1997, the Respondent assaulted the Petitioner at the parties home by shoving the Petitioner to the floor and again attempting to shove her over some furniture. Petitioner then attempted to call the police by dialling 911. Respondent hung up the phone in an effort to stop Petitioner from contacting the police. The police then arrived at the premises and stayed with Petitioner until she could gather her clothing and leave the marital home with the parties two minor children. Petitioner stayed at a friend's house on the evening of January 5, 1997. B. On January 4, 1997, Petitioner and Respondent were having an argument and the Respondent came towards the Petitioner and went to put his arms around her neck and then instead put Petitioner in a headlock. C. On January 3, 1997, Respondent deliberately bumped into and nudged the Petitioner while the Petitioner was holding the parties minor child which bumping and nudging was a result of the Respondent becoming agitated and upset with the Petitioner. D. In the past, Respondent has advanced bizarre statements to the Petitioner. Including in these is an allegation by the Respondent that the Petitioner was having sex with her minor children. Respondent has also stated to the Petitioner on occasions "you'll wake up some day with a rope around your neck". Also, Respondent has repeatedly called the Petitioner a "fucking bitch" and "fucking whore" during times when Respondent has become enraged in arguments. B Petitioner fears for her safety and well being of her and the children as a result of Respondent's erratic and assaultive behavior towards the Petitioner. WHEREFORE, Pursuant to the provisions of the Protection from Abuse Act, 23 Pa. C.S. S6l0l et seq, Petitioner requests the following relief: A. Grant a Temporary Order as follows: 1. Requiring the Respondent to refrain from abusing the Petitioner or placing her in fear of abuse. 2. Granting the Petitioner exclusive possession of the marital home and directing that the Respondent remove himself from the marital home. 3. Awarding Petitioner temporary custody of the parties minor children. B. Schedule a hearing in accordance with the provisions of the Protection from Abuse Act for the purposes of entering a permanent order granting relief as set forth above. Respectfully submitted, Hubert x. Gilroy, Broujos, Gilroy & P.C. 4 North Hanover reet Carlisle, PA 17013 717 - 243-4574 -''; C) .n n -.J '" , . '- , ..,-: , . i':g [: I, - : , " " I " " I CJ C, I" ',I) r ., ..,. ," J - ~j . . , ~ C') C:.' '111 '..' ,,' '" '0 ~: 1 -. -- KIMBERLY K. WHITAKER, plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VB, MICHAEL W. WHITAKER. Defendant NO. 97-67 19 CIVIL IN DIVORCE STATUS SHEET DATE: , I" / ,1b 1-/ ;) ,\ Ii 'i , J) J-).:?> . -1/.."._ ..........:-'~(If~ I J~I'I_ .,'; /, '/"tI'II/" ,,'/D /,;, ,. l.' .. II, ~ ,\ J 1 .' ,'. I/'/ ;, /1' . .,,, 1/' .', ~. . ) .. l,f " .~.~ , ' ".' J' I, ~" ;~,;":~. :J,)lJ~,.-( .l. t.., ,. 1" /" I ' ,tJ ':.t..)' :i" ... ,'" '.'. ' !~ ' ,. . I I ,'" ',' l,., '. ,/ ..'f 1../1' ~ . I: ( I. ,"J'. ------. "l",,-.L -:.(/, w tL-uI f'I'< ~ .~ LN1a.,.CvJ, . ::::r= . OFFICE OF DIVORCE MASTER CUMBERLAND COUNTY COURT OF COMMON PLEAS 9 North Hanover Slreet Carlisle, PA 17013 (717) 240,6535 E. Robert Elicker, II Divorce Master Trecl Jo Colyer Office Manager/Reporter West Shore 697,0371 Ex!. 6535 January 30, 1998 Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 North Hanover street Carlisle, PA 17013 James J. Kayer, Esquire KAYER & BROWN Liberty Loft 4 East Liberty Avenue Carlisle, PA 17013 RE: Kimberly K. Whitaker vs, Michael W. Whitaker No. 97 - 67 Civil In Divorce Dear Mr, Gilroy and Mr. Kayer: By order of Court of President Judge George E. Hoffer dated January 27, 1998, the full-time Master has been appointed in the above referenced divorce proceedings. A divorce complaint was filed on January 6, 1997, raising grounds for divorce of irretrievable breakdown of the marriage and indignities. The complaint also raised the economic claim of equitable distribution. I am going to proceed on the assumption that the parties will sign and file affidavits of consent so that the divorce can be concluded under Section 3301(c) of the Doemstic Relations Code. If I am not correct, please advise and I will schedule a hearing on the alternative grounds of indignities. Assuming that grounds for divorce are not an issue, I am directing each counsel to file a pre-trial statement in accordance with P.R.C.P. 1920.33(b) on or before Friday, February 27, 1998. Upon receipt of the pre-trial statements, I will immediately schedule a pre-hearing conference with counsel Mr. Gilroy and Mr. Kayer, Attorneys at Law 30 January 1998 Page 2 to discuss the issues and, if necessary, schedule a hearing. Very truly yours, E. Robert Elicker, II Divorce Master NOTE: Sanctions for failure to file the pre-trial statements are set forth in sUbdivision (c) and (d) of Rule 1920.33. THE ORIGINAL PRE-TRIAL STATEMENT SHOULD BE FILED IN THE MASTER'S OFFICE AND A COpy SENT DIRECTLY TO OPPOSING COUNSEL. BROlJJOS 11 CILROY. PC Arl"l,.'l!{.NI:Y.') AT IA\X' JOliN II, BROUJOS IIUBLIll' X, GILRO)' _I NORlIllt^NC\\TR ....IRLrr II/M;'.II..I'J/.1 N,JN- lOLl. lOR 1I^ItRI'lhl!R( ~ ^ltl .". 11/-/t,li-Il,')I) CARLI.\L.F, l'ENN~YL\.t\NI:\ 1/(\1." 1^\(;;~,I'.l'V;JI March 16, 1998 E. Robert Elicker, II Divorce Master 9 North Hanover Street Carlisle, PA 17013 RE: Whi taker v Whi taker Dear Bob: The parties in the above referenced case have resolved all issues. Enclosed are two copies of a Settlement Agreement. Please file the appropriate documentation to have your appointment vacated so that we can move to finalize the divorce ASAP. Thank you very much. Yours Sincerely, bc cc: James J. Kayer, Esquire Kimberly Whitaker IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Klmberlv K. Whitnker Plaintiff Plaintiff vs. Michael W. Whitaker Defendnnt NO. 97 - 67 19_ MOTION FOR APPOINTMENT OF MASTER (Plaintiff) (Defendant), following claims: moves the court to appoint a master with respect to the (vr Divorce ( ) Annulment ( ) Alimony ( ) Alimony Pendente Lite (~ Distribution of Property ( ) Support ( ) Counsel Fees ( ) Costs and Expenses and in support of the motion states: (1) Discovery is complete as to the claims(s) for which the sppointment of a master is requested. (2) The defendant (has) (has fte~) appeared in (by his attorney, James K. Kayer (3) The staturory ground(s) for divorce (is) the action (personally) ,Esquire). (are) (4) Delete the inapplicable paragraph(s): (a) The action is ~ contested. (b) An agreement has been reached with respect to the following claims: A-/J -t.. K' (c) The action is contested with respect to the following claims: or fact. (5) (6) (7) (h!Jn) (daye). to the motion: The action (i<n~"'-!t) (does not involve) ( relevant complex issues of law The hearing is expected to take Additional information, if any. Date: ~ '2,') ORDER AND NOW ",19 is appointed ter with respect to Esquire Esquire, _J ~)~ J :.. " '.:',J ",' , ";,.; ~, .., ::- -, " " J '-.) 11 I;:' ;t') , , -' '-:-1 , iJJ " , :.) " .. ',) :d ':J , '.n " . ~,J BROUJOS /.i GII.ROY, I' C "ITl..1KNI."'.'t AI" L.\\X' JOliN IIIU{OllJO, II IJ II i:IU' X CURO)' .1 NllN. r II IlAN('\'1 )( .'" KLI r I :ARJ.I:\II.. f'I.NN.....Y1\'ANI:\ I/u!-i 11/-;'.11-.1'>/.' NC'lN.IOl.tll'k II^RRI\IWRI, ."tH." 11/-/1,., -1h'IU , lAX: ,~.I '~"V;'/ February 19, 1998 E. Robert Elicker,k II, Esquire Office of Divorce Master 9 North Hanover Street Carlisle, PA 17013 ~ I f ! RE: Whi taker v Whi taker Dear Bob: We had listed the above case for a hearing before you in the hopes of getting the case moving. We just received a written proposed property settlement agreement from Mr. Whitaker's counsel. We need some time to review this agreement. Please give us a few weeks' extension to file pre-hearing statements while we try to reach an agreement. I believe the parties are relatively close. Yours Sincerely, ""b.r~ wkh cc: James J. Kayer, Esquire Kimberly K. Whitaker KIMBERLY K. WHITAKER. Plaintiff : IN THE COURT (jF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACnON - LAW : NO. 97,67 CIVIL TERM MICHAEL W. WHITAKER, Defendant ," () " ,OJ _J : DIVORCE/CUSTODY , .:.1J ,- ~ ':~~ ,:.J-I ", -0 I, James J. Kayer, Esquire, hereby accept service this 27th, of January, ;i~97 o{~ilie Np~i~e to . ~.D -, .....: .1". ACCEPTANCE OF SERVICE t", (.' {.: Defend and Complaint in Divorce filed on January 6, 1997 in the above captioned malter. J cc: Hubert X. Gilroy, Esquire EXHIBIT A ~ , . ~ . 1 ~; . (") .0 0 c: CD '<1 f:: ..,.. :~ ijJ~' :p; i '"liJJ :.;:) .,.,.1 "m -....{ ~J1' t. . co '>,,: ;':'C) -,-:'. r:c "'U 'I!:t] . - ~;C.j :=, '.20 ---( . C:: am p,....: ,-l :~ '.rl ~ -.. 0 -< t' SEPARATION AND PROPERTY SFITI.EMENT AGREEMENT flli TillS AGREEMENT Madc this !L day of March. 1998, hy and betwecn KIMIlERLY WIIITAKER (hereinaftcr referred to as WIFE) and MICHAEL WIIITAKER (hereinafter rcferrcd to as IIUSBAND): WITNESSETII: WIIEREAS, the partics hereto wcrc married on February 9, 1990. in Carlislc, Cumbcrland Coullly, Pennsylvania; have been and are IIlJSIlAND and WIFE; and as a result of this union, two children were born 10 wit: JOSIIUA M. WIIITAKER, born March 23, 1991 and ZACHARY W. WIIITAKER. born January 12, 1995, hercaftcr rcferred to as the "childrcn." WIIEREAS, diverse, unhappy differcnccs, disputes and difficultics havc arisen bctween the parties and it is the intention of WIFE and IIlJSBAND 10 live scparate and apart for the rest of their natural lives, and the parties hereto are desirous of settling fully and finally thcir rcspective financial and property rights and obligations as betwcen cacb other. including, witboutlimitation by spccification; the senling of allmattcrs between them relating to the ownership and cquitablc distribution of rcal and pcrsonal property; scttling of all matters hetween them rclating to the past, prcscnt and futurc support and/or maintenancc of thc WIFE, the settling of any and all claims and possible claims by onc against lhe other or against thcir rcspectivc estatc. NOW, TIIERErORE, in consideration of the premiscs and of thc mutual promiscs, covcnants and undertakings bercinafter set forth and for other good and valuablc consideration, receipt of which is hereby acknowledgcd by each of thc parties hereto, WIFE and HUSBAND, each intending to bc legally hound, hereby covenant and ilgree as follows: I. AGREEMENT NOT A BAR TO DIVORCE PROCEEDINGS: This Agreement shall not hc considercd to affcct or bar the right of WIFE or HUSBAND to a limited or absDlute divorce on lawful grounds as such grounds now exist or shall hercahcr cxisl or 10 such defense as may he availahlc to cither party. This Agreement is not illlendcd to condonc and shall not he deemed 10 he a condonalion on the part of eilher party hcreto of any act or acls on lhc part of the other party which have occurrcd prior to the dale hereof. The parties inlCnd to sccure a mUlual consent divorce. 2. EFFECT OF DIVORCE DECREE: Thc parties agrcc that unless othcrwisc spccifically provided herein, this Agreemelll shall continue in full forcc and cffect after such timc as a final dccrcc in divorcc may bc elllered with respect 10 Ihe partics. 3. AGREEMENT TO BE INCORPORATED IN DIVORCE DECREE: The parties agrcc Ihal Ihe terms of Ihis Agrecment shall he incorporatcd illlO any divorce decree which may hc elllcrcd wilh rcspcct 10 them. 4. SEPARATION: It shall hc lawful for cach party at all limes hereafter 10 livc separale anti apart from thc other party as such place as hc or shc may from time 10 lime choosc or deem fit. Thc forcgoing provisions shall not be taken as an admission on the part of cither party of thc lawfulness or unlawfulncss of the causes leading to their living apart. 5. INTERFERENCE: Each party shall he frcc from illlerfcrence, aUlhority. and COlllaCI by Ihe othcr. as fully as if he or she were single and unmarricd except as may be necessary to carry oul Ihe provisions of this Agreement. Neither party shall moles I Ihe olher or allempt to cndeavor 10 molesllhe othcr. nor compel thc olher 10 cohahit with Ihe other, or in any way harass or malign the other, nor in any way illlerfere with thc peaceful exislence, separale and apart from the other. 6. WIFE'S DEBTS: WIFE represellls and warrallls 10 HUSBAND that since lheir. she has nOI ill1d in the fUlure she will not conlraCI or incur any debt or liability for which HUSBAND or his eSlale mighl he rcsponsible and shall indemnify and save harmless HUSBAND from any and all claims or demands made against him by reasons of debts or obligations incurred by her. 7. HUSBAND'S DEBTS: IIUSBAND represents and warrams to WIFE that since their ~eparation he has not and in the future he will not contract or incur any dclllor li'lhility for which WIFE or her estate might he responsihle and shall indemnify and savc harmless WI FE from any and all claims or demands made against her hy reason of debts or ohligations incurred hy him. ll. MUTUAl. REI.EASE: Suhject to the provisions of this Agrcemem, each party has released ,lIld discharged. and hy this Agrcement does for himself or herself and his or her heirs, legal represcmatives, executors, administrators alld assigns, release and discharge the other of and from all causes of action. claims. rights, or demands, whatsoever in law or equity. which either of the parties ever had or now has against the other, except any or all cause or causes of action for divorce and cxcept any or all causes of action from breach of any provisions of this Agreemenl. 9. REAl. PROPERTY: The marital home at 322 Juniper Street. Carlisle, Cumberland County. Pennsylvania shall be the property of the WIFE, IOgether with any lien thereon. The WirE shall within sixty (60) days of execution of this agreement. refinance the home solely into her own name, or alternatively. arrange with the existing lender a release of liability for the HUSBAND on the mortgage. The parties shall sign and execute any and all documems 10 effectuate this transaction including the HUSBAND's execution of a deed waiving any and all imercst that he has in this property. Wifc shall indemnify and hold HUSBAND harmless from any liability arising from any I icu or mortgage encumhcring this property. 10. DIVISION OF PERSONAl. PROPERTY: (a) The parties have heretofore divided their personal propcrty to thcir mutual satisfaction. Ilcncefmth. each of thc parties shall own, have and enjoy, indepcndently of any claim of right of the other party. all items of personal property of every kind, naturc and description and wheresoever situated, which are now owned or held by or which may hereafter belong to the HUSBAND or WIFE t . l , , respectfully, with full power to thc IIUSIIANI> or the WIFE to dispose of same as fully and effectually, in <III respects and for <III purposes as if he or she wcre unm<lrried. All items of pcrsonal property shall be divided hetween the parties as provided hcrein: (b) Persolml Effl'cts: All itcms of personal cffccts such <IS, but not limited to: jewelry, luggage, sports cquipmelll, hobby collections and books, but not including furniture or <lny propcrty, personal or otherwise specifically disposed of pursu<lnt to this agrecment, sh<lll becomc thc absolute and solc propcrty of that party who has had the principal usc thereof or to whom the properly W<lS given or for whom it W<lS purchased, <lnd e<lch party hereby surrendcrs <lny illlcrcst hc or she m<lY h<lve in <lny such wngible personal property of the other. Cert<lin itcms of pcrsonal property that remain in the posscssion of thc WIFE and sh<lll be turncd over to tbe HUSBAND within sixty (60) days of the cxccution of this document. Thesc items of personal propcrty arc specified in Exhibit "A" to this agreemcnt. (c) Intangiblc Personal Property (other than Life Insurance): Thc partics agrcc to <I distribution of intangiblc pcrsonal property as set forth in Exhibit "II" of this <lgreement. Thc p<lrties <lgree that any c<lsh <lnd sums on dcposit in checking and s<lvings accounts (owncd by either or both p<lrrics), tlmt h<lvc not been set forth in Exhibit "II", h<lvc becn divided to the mutual satisfaction of the partics. (d) Military Pension: The HUSBAND recognizes that his military pension is a propcrty <lsset divisiblc <IS part of this property selllemelll agrcement. Accordingly, the HUSBAND agrces that (10.63%) of his dispos<lble milit<lry pension sh<lll be thc sole and cxclusive propcrty of thc WIFE. Thc HUSBAND further agrees that he shall obtain ;md nmintain in full effcct and forcc, irrcvocably, the Survivor's Benefit Program in <In mnount as currelllly elcctcd for the bcncfit of the WIFE. The parties shall CKecute any and all documents including a Qualified Domestic Rclations Ordcr to authorilc the military to divide the pension accordingly and make direct payments to each party. Thc parties shall cqually share in thc costs of actuarial analysis performcd hy Conmd Siegel, Inc. The parties agree that the WIFE has paid $425.00 to Conrad Siegcl, Inc., and IlUSBAND shall rcimhurse her for llne,half of that charge within sixty (60) days of cxccution of this documcnt. Counsel for IlUSBAND shall prepare any and all documents relating to the Qualified Domcstic Relations Ordcr and shall submit these documents to opposing counscl for his approval prior to filing with thc Court and suhmission to appropriate authorities. (c) Motor Vehicles: IlUSBAND shall mailllain possession of thc 1996 Honda Accord and shall bc solcly responsiblc for any lien thereon. WIFE sball mailllain posscssion of the 19881l0nda and shall he solely rcsponsiblc for any lien thereon. Each party indcmnifics and holds harmless thc other from any and all liability incidelllal to any encumbmnce or debt owed on these vehicles. (I) Dcbts: Thc IlUSBAND shall he responsible for all existing dcbts and liabilities incurred in his own name prior to thc separation. Thc WIFE shall bc rcsponsible for all cxisting debts and liabilities incurrcd in her own name prior to the separation. (g) The partics further agree that neithcr will incur any future debts for which the other may be held liable, and if either party incurs a dcbt for which the other will be liable, that party incurring such debt will hold thc othcr harmless from any and all liability thereon. II. AFTER ACOUIRED PERSONAl. PROPERTY: Each of thc partics shall hereafter own and enjoy. indcpendently of any claims or right of the other, all itcms of pcrsonal property, tangible or illlangihle. hercafter acquired by him or her. with full powcr in him or hcr to dispose of the same as fully and effectively. in all rcspect and for all purposcs, as though he or she were unmarried. 12. CUSTODY: Thc parties shall share legal custody of thc minor childrcn. Thc WIFE shall ! t mainlain primary physical custody of thc minor childrcn. Thc HUSBAND shall haw partial physical custody of the minor children with a schedulc of minimum visitation with the children 10 includc alternating weekends at datcs and times as Ihc parties may agrcc. The parties further agrcc that HUSBAND's pcriods of partial physical cusllldy shall bc allhosc other timcs as may hc mutually agrccd upon by the partics. The partics anticipate thai thc HUSBAND shall bc permitted rcgular acccss during each wcek with thc childrcnto include "aftcr school" periods of partial physical cuslOdy. Thc parties shall allocatc pcriods of physical custody on thc holidays and eXlCnded periods of custody during sumnlers as Ihey may agrcc. 13. CHILD SUPPORT: The HUSBAND agrccs III pay to thc WIFE. the sum of $480.00 per mOlllh for the maintenance and support of the children during Ihe period when Ihe childrcn are in thc WIFE's custody. Paymcnts shall hc madc direclly to WIFE who, at her option. may file for support with Ihe Domestic Relations Office or any othcr child support enforcement office. So long as HllSBAND has cOlllinued to makc paymcllls in a limcly fashion, thc WIFE waives seeking to haw HlISBAND's support payments attached from either his employment paychcck or military pension. In Ihe evclll that HUSBAND fails to makc timely payments. this agreement shall not constitute a waiver of thc WIFE's ability to pursue contempt chargcs against HUSBAND. The parlies rcscrve Ihe right to modify this support amOUIll and rcserve thc right to seck modification of this support amoulll by appropriatc pClition with any court. IIllSBAND shallmailllain mcdical insurance upon thc children, and the partics agrcc that they shall hear equally in any expcnse Ihal is nOI covcred by medical msurance, 14. COUNSEl. FEES: Each party shall pay his or her counscl fees and cxpenses. 15. INSURANCE POLICIES: The parties agrec that the following policics sh.1I1 be maintained in full forcc and effect and the proceed from thesc policies shall bc madc payablc to a trust in the lwnefit of the two minor children. The parties agree to cxecute any and all documellls necessary to creatc and maintain this trust. The policies to be includcd in this trust document shall includc: (a) HUSBAND's policy incidelll to his military retircment (SBP); (b) HUSBAND's insurancc policy incidcnt to his currcnt cmployment: (c) WIFE's policy arising from hcr Luthcran Brothcrhood retirement; (d) WIFE's policy incidcnt to her currcnt employmclll. Counscl for thc WIFE shall be responsiblc for preparation of thc appropriate trust documents designating the rinancial Trust Corporation as trustec of thcse sums. Counscl for thc WIFE shall provide opposing counsel with copies of any .lI1d all such documcnts preparcd prior to their filing with the Court or submission to appropriate authorities. 16. DIVORCE: Thc parties hereto agrec III cntcr into a mutual conscnt divorce. WIFE agrccs 10 pursue thc divorce and to be the Plail1liff thercin. HUSBAND agrces to sign Ihe necessary documel1ls, including an Affidavit of Consent and further instrumcnts that may be reasonably rcquired 10 give full force and cffcct to thc provisions of Ihis Agrccmcnt. 17. WAIVER OF CLAIMS: Exccpt as hcrein othcrwisc providcd, cach party may dispose of his or her property in any way, and each party hcrcby waivcs and rclinquishcs any and all rights he or she shall now have or hercafter acquire, under Ihe present or futurc laws of any jurisdiction, to share in the property or thc estatc of thc other as a result of thc marital rclationship, including without limitalion, dower, courtesy. statutory allowance, widow's allowance, right to takc in intestacy, right to lakc against the Will of thc other, and right to act as administrator or cxccutor of the othcr's estatc, and each will, at the rcqucst of the othcr, cxccute, acknowlcdgc and dclivcr any and all instrumcnts which ~. c may hc ncccssary or advisable to carry into cffect this mutual waivcr and relinquishment of all such intcrests. rights and claims. 18. BREACII: If either party hreaches any provision of this Agrcemcnt, the othcr party shall havc thc right, at his or her elcction, to sue for damagcs for such breach or scck such other remedics or relief as may he available to him or her, and the party hrcaching this contract shall be rcsponsihle lor paymcntof legal fees and costs incurred hy thc other in cnforcing thcir rights under this Agrecmcnt. 19. VOID CLAUSES: If any tcrm, condition, clause or provision of this Agreemcnt shall be dctermincd or declared to be void or invalid in law or otherwise, then only that tcrm, condition, clausc or provision shall be stricken fromlhis Agrcemcnt and in all other rcspccts this agrccmcnt shall be valid and continue in full force, cffect and operation. 20. DESCRIPTIVE IIEADINGS: Thc descriptive headings used herein are for convenicncc only. They shall have no effect whatsoever in determining thc rights or obligations of the parties. 21. INDEPENDENT SEPARATE COVENANTS: It is specifically undcrstood and agreed by and bctwccn the parties hcreto that each paragraph hereof shall be decmcd to bc a separatc and indcpcndcnt covcnant and agreemcnt. 22. ADDITIONAL INSTRUMENTS: Each of the parties shall from time to time, atthc request of the other, cxccutc, acknowledge and deliver to the othcr party any and all further instruments that may hc rcasonahle requircd to give full force and effcct to thc provisions of this Agrcemcnt. 23. APPLICABLE l.A W: This Agrccment shall be construcd undcr thc laws of the Commonwcalth of Pcnnsylvania and more specifically under thc Divorcc Codc of 1980. 24. MiREEMENT BINDING ON IIEIRS: This Agreemcnt shall bc binding and shall inurc to thc hcncfit of the parties hereto and thcir rcspective hcirs, cxecutors, administrators, successors and assIgns. J ~5. ENTIRE AGREEMENT: This Agrccment cOlllains thc clllire understanding of the partics and thcre are no rcprescnlations, warranties, covenants or undertakings other lhan lhosc exprcssly sel forth hcrein. 26. MODIFICATION AND WAIVER: A modificalion or waivcr of any of the provisions of lhis Agrecmelll shall be effective only if made in writing and cxcculcd with lhc samc formality as lhis Agrecmcnt. The I:lilurc of cither party to insislupon strict performancc of any of thc provisions of this Agrccment shall nOl be construed as a waivcr of any subscquent default of the samc or similar naturc. 27. WAIVER OF RIGHTS: The parties hereto have bccn informed of their rights or have been adviscd 10 scek counscl to inform them of lheir rights under and pursualll to lhe Divorcc Codc, Acl of April 2, 1980. Number 1980,26, particularly thc provisions for alimony, alimony pcndente IilC, cquitablc dislribution of marital propcrty, counscl fees or cxpenscs. BOlh parties agree that this Agrccmelll shall conclusively provide for lhc dislrihution of property under lhc said law and hercby waive. release and relinquish any further righls they may respectively havc againsl the olher for alimony. alimony pendentc lite, equitable distribulion of marital property, counsel fecs or cxpenses. From the dale hercof. each party may acquirc eilher personal or rcal property in their own name. Any property so acquired shall be owncd solely by the individual and shall nOl be subjecl 10 any claim whatsoevcr by lhc other party. 28. EXECUTION OF DOCUMENTS: BOlh parties hereby agree to exeCUle any documents required 10 implemenl lhis Agrecment. 29. FINANCIAL DISCLOSURE: Thc parties confirm that they havc relied on lhe substantial accuracy of the financial disclosure of lhe other as an inducement to thc execution of this Agreement. :, EXIIIBIT "A" Living Room Lamps Bookshelf Lalllern Picturc (as parties agrce) Small black stand (dining room) Anniversary Clock .~;...{,[....i;:""'M~~'J'.I".'.;'- KIMBERL Y K. WHITAKER. Plaintiff . IN TIlE COURT OF COMMON PLEAS OF . CUMBERLAND COUNTY, ('ENNSYI.V ANIA vs . CIVIL ACTION - LAW . NO. 97-67 CIVIL TERM " MICHAEL W. WHITAKER, Defcndant . IN DIVORCE STIPULATED ORDEI{ FOI{ TIlE I)IVISION en' MILITARY RETIRED PAY WHEREAS, incident to the dissolution oftheir marriage, the Panies wish to enter this STIPULATED ORDER FOR THE DIVISION OF MILITARY RETIRED PAY and ask the Court to make the Stipulation an Order ofthc Coun: The Panies Agrcc and Stipulatc Thae ~ I I, Information concerning the PlaintilTmilitary mcmber, hcrcinallcr referred to as "Member". Namc. Michael W, Whitaker Social Security Number' 329-58-8581 2, Information concerning the non-military spouse, hercinaller relerred to as "Formcr Spouse". Name Kimberly K. Whitakcr Social Security Number 209-58-8328 3, This order is subjcct to modification should it bccome neccssary to conform it to thc requirements ofthc military pay center, 4, This coun has jurisdiction over Member by reason of his domicile in this state and his consent. 5. The Partics werc married on Fcbruary 9, 1990. The duration of the marriagc in relation to the time Mcmbcr accrued servicc creditable for retircmcnt is not in excess of twenty (20) years Thercfore direct pay is authorized under 10 U,SC Scction 1408(d) 6. As and for her property interest in member's military retired pay. Former Spouse is awardcd ten point sixty-three percent ( 1063%) of that ponionofthe monthly disposable retircment annuity, The member shall elect sullicient survivor benefit plan (SBP) to ensure that wife shall continue to receivc her marital ponion of thc retirement up until her e1igihility for social sccurity. Calculations of thc panics' respcctivc ponions shall he made aftcr thc SBP premium has hecu chargcd amI deducted. Thc Fortner Spouse's award is a fixed percentagc which may dcviatc in the evcnt that thc membcr ohtains disilbilily compcnsation from the Depanmeut of Veteran's Affairs. 7. So that Fortner Spouse will know the cost of thc SBp, thc memher shall provide hcr with it copy of his retired pay statement each time thcre is it change in the cost of the said SBP. Mcmher shall also providc the Fortner Spouse with a copy of retired pay statement each time there is a cost of living adjustment made. R. Fortner Spouse's interest shall tenninate only upon the death of either party and shall not tenninatc upon thc rcmarriage of ronner Spouse. I). Payments of Member's retired pay will tenninate upon his death, and therefore, payments to Former Spousc out of his retirement will also tenninate. However, the govenunent has established the Survivor Bcncfit Plan (SSP) by which puyments to a stated beneficiary of a ponion of Member's retired pay will continue after his demit Applicable statutes allow a former spouse to be designated a beneficiary under thc SBp. 10. When Member retires, he shall elect sufficient coverage under the SBp naming Fonner Spouse as his heneficiary und the panies agree that this coverage shall continue for the benefit of Fonner Spouse aftcr the dissolution of the marriage of the panies. II. Memher shall within tcn (10) clays of the date of this Order, take the steps necessary to change Fortner Spouse from his "Spouse" to his "fonner spouse" beneficiary for appropriate coverage under the SBP. Member will take no action to reduce, limit or withdraw said "former spouse" election without Icavc of this Coun. 2 12. The Act authorizes a fonner spouse of a rctircd military nwmbcr to obtaiu cuun awanll'd payments from a mcmber's rctircd pay dircctly frotn thc Inemhds servkl' financc centcr. 11ln order to cffect service on thc scrvicc fin.mce center so that dircct payments can bc sent to Fonncr Spouse, ccnain information must be providcd to thc finance centcr. In ordcr to initiatc such paymellls, Fonncr Spousc shall process an application that is in conformity with thc Act, as follows: The following infonnatiou shall bc scnt to DFAS,CL/L, Cleveland, Ohio, by pcrsonal scrvke, or cenified or registered mail retunl reccipt requested: a. A cenified copy of all orders of this Coun rclatiug to these panies that has heen cenificd within ninety (90) days of the date tLe Cclllcr rcceipts for the application; h. A statement signed by ronner Spouse requesting direct paymeut that includes the following language: "I request direct payment from the rctired pay of Miclmel W. Whitaker, whose social sccurity account number is 329-58-8581, in accordance with the enclosed coun order. I cenify that the coun order is a final decree and has not been amendcd, superseded or set aside. As a condition precedent to payment, I .Igree that any overpayment are recovemble and subject to involnntary collection from me or my estate, and that I will notify the Unifonned Service if the opemtive coun order, upon which payment is based, is vacated, modified or set aside. I also agree to notify the Unifonned Service of a chauge of eligibility for payments. ll1is includes notice of my remarriage, if under the tern!:; of the coun order or laws of the jurisdiction where it was issued, remarriage eligibility for child suppon payments by reason of the death, cmancipation, adoption or attainment of majority of a child whose suppon is provided through direct payments from retired pay." c. The address, or account and bank routing infornmtion, to which the payments are to be made. 14. Member is appointed as trustee for the benefit of ronner Spouse to the extent of her award of a ponion of his military retired pay. Member will pay to Former Spouse her said share no later than five (5) days after he receivcs a payment from the Finance Center. 111is pamgmph shall be applicable until 3 a dircct paymcnt takcs effect so thut rOrlner Spouse will receive her payment directly from thc Financc Ccnter and shall he effcctive for lIny month for which ronncr Sponsc does not receivc fnll dircct paymcnts from said Celli cr. 15. Membcr will pay ronncr Sponse her interest in his retired pay as herein provided. Memhcr is not relieved of this obligation cxccpt to the extent that hc is notified that the intcrest of Fonner Spousc hus bcen p,lid directly to her hy the servicing Finance Centcr. 16. Member will execute a statement directed to the personnel and pay sections of his service authorizing said offices to releasc to rOrlner Spousc any pay information she requests, including copies of his rctircd pay statement. 17. Each pany will he responsible for paying all applicablc income taxes on thc payments from thc rctircment that each shall receive. 18. FOrlner Spouse muy immediately tile an application for direct payment as set fonh in Pamgmph 12, ahove. 19. Memhcr shall coopemte with Fonner Spouse as necessary to insure that she receives all benefits to which she is are entitled. 20. 111is coun reserves jurisdictiou to issue such amending or clarifying orders as may be necessary to insure rormer Spouse receives payments awarded herein. 4 ~ ~ AUTHORIZA TION Jo"OR RELEASE OF INmRMATION TO: All Dcpanment of Defense Agencies and Depanmellls RE: Authorization for Release of Information I, Michael W. Whitaker, SSN: 329-58-8581, hcreby authori7e all Depanmcnt of Defense Agencics and Dcpanmellls to release to my fonner spouse, Kimherly K. Whitaker, any and all infornmtion shc may rcquest relating to my retired pay. This iucludes, but is not limited to, authorization to relcasc to her copies of retired pay statements. This Authorization may not he withdrawn without the express wrinen consent of the Coun of Common Pleas of Cumberlaml County, Pennsylvania. A copy of this release may servc as an original. fM.dc~tJ~ Michael W. Whitaker, Memher ~, JL,.c;c; Date On the /lttf'- day of . tlL , 1998, before me, lJfJlJJ( 11lJG.t/lr1th ,a Notary Public, State of Pennsylvania, ( uly commissioned an sworn, personally appeared Michael W. Whitaker, who proved to me on the hasis of satisfactory evidence to be the person whose namc is suhscribed to within this stipulation and who acknowledgcd to me as ~Iving cZlCcuted t~liS RelCI(-)lnfonnation. ._~[' ftc4f ("0,,^,,,,t-J1 NOTARIAL SEAL . . DENISE PINAMONTI. Notary. I,e \. Not}!r,y uhhc Carlislo Borough. Cumberland County 0-- My_~~S'ilo~~E.p-i~DS_~~~~._2p~ 20~ My commission expires 6 BROUJOS & GILROY, P.C. ATI'ORNBYS AT LAW 4 NORlH HANOVBR STREET CARUSLB, PENNSYLVANIA 17013 717-243-4574 766-1690 OCr I '~ 6 Despite repcatcd demands by thc Petitioner, Rcspondent has refused to fulfill his requircment of the Property Selllcmcnt Agreement on the following issucs: A. Paragraph 10 (d) of the Property Scttlement Agrecment required husband to allocate 10.63% of his disposable military pension to his wife. Dcspitc repcated demands over thc past two years. Husband has refused to pay to wife and account to wife for monies hc receivcd on his pension sincc March II, 1998 whcn wife should have bcen receiving 10.63% of the disposable military pension. Husband needs to account for this military pension from thc date of the agreement on March 18, 1998 until when the military startcd making pension payments directly to Wife which took place on August 14, 1999. B. Paragraph 13 of the Propeny Settlcment Agrcemcnt required the partics to split cqually any mcdical cxpcnsc incurred by the parties' children that is not eovercd by medical insurancc. Despite rcpcatcd demands, Rcspondent has refused to reimbursc Petitioncr for medical expcnses despite thc fact the Petitioner has prcscntcd Respondent with detailed infonnation on these medical expenscs. Mcdical cxpcnscs which are owing by Husband as of thc filing of this pctition as arc follows: Dentist Cleaning. April 10, 2000 Dental Treatment - April 26, 2000 $27.00 $82.50 C. Paragraph 15 of the Property Settlement Agrecmcnt required husband to maintain a designated trust, which is set up for the benefit of the party's children, as a beneficiary of cenain insurance policies. Despite repeated rcquests, Rcspondent has not provided information to confinn that hc has fulfilled his obligations on this issue. 7 Paragraph 18 of the Property Settlement Agrecment provides that in the cvent of any brcach of this Agreement, the breaching pany shall be responsible for thc payment of legal fces and costs incurrcd by thc othcr in cnforcing their rights undcr the Propcny Selllcment Agrccment. Accordingly, Pctitioner seeks reimbursement of her legal fees in conncction with the filing of this pctition and any proceedings that are nccessitated in conncction with this petition to cnforce the Property Selllement Agreement. ~...... KIMBERLY K, WHITAKER, Plaintiff v : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 97 - 067 CIVIL TERM MICHAEL W. WHITAKER, Defendant : CIVIL ACTION - LAW : IN DIVORCE COURT ORDER AND NOW, this $0 day of \.)~ , 2000, upon } being advised that the Plaintiff desires a general continuance on the hearing scheduled on the Plaintiff's Petition for Enforcement of the Property Settlement Agreement, the hearing scheduled for December 6, 2000 at 1 :30 p,m. is cancelled. Plaintiff may reinstitute the Petition for Enforcement by request for a hearing at a future date if such a hearing is i , \ necessary. BY THE CgURT, /;/, .' I \ I I By: t. ~ /1.-1-00 ~~ cc: Hubert X. Gilroy, Esquire James J. Kayer, Esquire