HomeMy WebLinkAbout98-00388
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IN
THE COURT OF COMMON
PLEAS
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OF CUMBERLAND COUNTY
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DECREE IN
DIVORCE
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AND NOW, ....... .l!Y.~~.. .-!.~....., 200~...., it is ordered and
decreed Ihol .............. .l?!lY.I.I? 1'.'. .~t:1P'.I1. .. . . . ..... . . ...., plaintiff,
and.,....,.....,......... .CHRIST.Y. .R.. S.MITH..............., defendant,
aro divorcod from the bonds of matrimony. The terms of the Marital
ReU: l,ell1cl1l' ^grcclI1enl. doted November 15, 2000 ore incorporated
hCl'olU, hilI. lIrc I1QI: n\er\le\\ w.ith t:.h;i,s denree.. , .
Iho courl rolalns lurrsalcTlon at rne tollowlng claims which have
beon raised of record in Ihis aclion for which a final order has not yet
boon enterod;
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MARITAL SETTLEMENT AGREEMENT
THIS AGREEMENT, made this /511" day of No ve InJ:U/l
2000 between CHRISTY R. SMITH, (hereinafter referred to as WIFE)
and DAVID E, SMITH (hereinafter referred to as HUSBAND) .
WITNESSETH:
~EREAS, Husband and Wife were lawfully married on December
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~ in Santa Clara, California; and
WHEREAS, one (1) child was born of this marriage, namely,
Michael D. Smith born January 9, 1988,
29,
WHEREAS, disputes and difficulties have arisen between the
parties, and it is the present intention of Husband and Wife to
live separate and apart, and the parties hereto are desirous of
settling 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 past, present, and future support and/or maintenance of Wife
by Husband or Husband by Wife; the settling of all matters between
them relating to the equitable division of marital property; and,
in general, the settling of any and all claims and possible claims
by one against the other or against their respective estates; and
WHEREAS, Husband and Wife declare that each has had a full and
fair opportunity to obtain independent legal advice of counsel of
his or her selection; that Husband has been represented by Linda A.
Clotfelter, Esquire and that Wife has been informed that she has
the right to independent legal counsel, but she had chosen not to
be represented in this action. The parties represent and warrant
that they have fully disclosed to each other all assets of any
nature owned by each, all debts or obligations for which the other
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party may be liable in whole or port, and all Sources and amounts
of income. The parties acknowledge that they fully understand the
facts, and they acknowledge and accept that this Agreement, is,
under the Circumstances, fair and equitable, and that it is being
entered into freely and vOluntarily, with such knowledge and that
execution of this Agreement is not the result of any duress or
undue influence and that it is not the result of any improper or
illegal agreement or agreements,
NOW THEREFORE, in consideration of the premises and of the
mutual promises, covenants and undertakings hereinafter set forth
and for other good and valuable consideration, receipt of which is
hereby acknowledged by each of the parties hereto, Husband and
Wife, each intending to be legally bound hereby, covenant and agree
as follows:
1. PERSONAL RIGHTS. It shall be lawful for each Husband and
Wife at all times hereafter to live separate and apart from the
other party at such place as he or she may from time to time choose
or deem fit. The parties shall be free from any control,
restraint, interference or authority, direct or indirect, by the
other in all respects as fully as if they were unmarried, except as
may be necessary to carry out the provisions of this Agreement.
Husband and Wife shall not molest, harass, disturb or malign each
other or the respective families of each other nor compel or
attempt to compel the other to cohabit or dwell by any means in any
manner whatsoever with him or her. The f.oregoing provision shall
not be taken as an admission on the part of either party of the
lawfulness or unlawfulness of the causes leading to their living
apart.
2 .
MUTUAL RELEASE,
Husband
and Wife each do hereby
and forever discharge the
all purposes Whatsoever, of
mutually remise, release, qUitclaim
other, for all time to come, and for
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and froll1 any and all rights, titles and interests, or cloims in or
ogainst the propel'ty (including income and goJ.ns from property
hcreinafter occruing) of the other or ogainst the estate of such
other, of whatever nature and wheresoever situote, which he or she
now hos or at any till1e hereofter may have against such other, the
estote of such other or ony part thereof, whether arising out of
any former act, contracts, engagements or liabilities of such other
or by way of dower or C\lrtesy; or claims in the nature of dower or
curtesy or widow's or widower's rights, family exception 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
surviving spouse to participate in a deceased spouse' EO estate,
whether arising under the law of Pennsylvania, any state,
commonwealth or territory of the United States, or any other
country, or the right to act as personal representative of the
estate of the other; or any rights which any party may now have or
any time hereafter have for past, present, future support,
maintenance, alimony, alimony pendente lite, counsel fees, costs or
expenses, whether arising as a result of the marital relation or
otherwise; except all rights and agreements and obligations of
whatsoever nature arising or which may arise under this Agreement
or for breach of any provision hereof, It is the intention of
Husband and Wife to give to each other, by the execution of the
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, except and only
except all rights and agreements and obligations of whatsoever
nature arising or which may arise under this Agreement or for the
breach of any provision hereof.
3. RELEASE OF TESTAMENTARY CLAIMS. Except as provided for
in this Agreement, each of the parties hereto shall have the right
to dispose of his or her property by last will and testament or
otherwise, and each of them agrees that the estate of the other,
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whether real, personal or mixed, shall be and belong to the person
or persons who would have become entitled thereto as if the
decedent had been the last to die, Except as set forth herein,
this provision is intended to constitute a mutual waiver by the
parties of ony rights to take against each other's estate
whotsoever, ond is intended to confer third-party beneficiary
rights upon the other heirs and beneficiaries of each. Either
party may, however, make such provision for the other as he or she
may desire in an by his or her last will and testament; and each of
the parties further covenants and agrees that he or she will permit
any will of the other to be probated and allowed administration;
and that neither Husband nor Wife will claim against or contest the
will and estate of the other except as necessary to enforce any
breach by the decedent of any provision of this Agreement, Each of
the parties hereby releases, relinquishes and waives any and all
rights to act as personal representative of the other party's
estate. Each of the parties hereto further covenants and agrees
for himself and herself and his or her heirs, executors,
administrators or assigns, for the purpose of enforcing any of the
rights relinquished under this Agreement.
4. FINANCIAL DISCLOSURE. The parties waive their rights to
require the filing of financial statements by the other, although
the parties have been advised that it is their legal right to have
these disclosures made prior to entering into this Agreement and by
entering into this Agreement without reliance upon financial
disclosure, the parties are forever waiving their right to request
or use that as a basis to overturn this Agreement or any part
thereof.
5. INCOME TAX CONSIDERATIONS. The transfers of property
pursuant to this Agreement are transfers between Husband and Wife
incident to their divorce and as such are nontaxable, with no gain
or loss recognized. The transferee's basis in the property shall
be the adjusted basis of the transferor immediately before the
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transfer. The transfers herein are on equol division of marital
property for full and adequate consideration ond as such will not
result in any gift tox liability,
6. PENSION , PROFIT-SHARING, RETIREMENT , CREDIT UNION OR
OTHER EMPLOYMENT-RELATED PLANS, The parties hereto expressly woive
and relinquish any right, claim, title or interest in any pension,
profit -sharing, retirement, credit union or other employment-
related plans in which the other has any interest by virtue of his
or her past or present employment, whether vested or unvested,
matured or unmatured.
7. EOUITABLE DISTRIBUTION OF MARITAL PROPERTY. The parties
have attempted to distribute their marital property in a manner
which conforms to the criteria set forth in Section 3502 of the
Pennsylvania Divorce Code and taking into account the following
considerations: the length of marriage; the fact that it is the
first marriage for Husband and Wife; the age, health, station,
amount and sources of income, vocational skills, employability,
estate, liabilities and needs of each of the parties; the
contribution of each party to the education, training or increased
earning power of the other party; the opportunity of each party for
further acquisitions of capital assets and income; the sources of
income of both parties, including but not limited to medical,
retirement, insurance or other benefits; the contribution or
dissipation of each party in the acquisition, preservation,
depreciation or appreciation of the marital property, including the
contribution of each spouse as a homemaker the value of the
property set apart to each party; the standard of living of the
parties established during the marriage; and the economic
circumstances of each party at the time the division of the
property is to become effective.
The division of existing marital property is not intended by
the parties to constitute in any way a sale or exchange of assets,
and the division is being effected without the introduction of
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outside funds or other property not constituting marital property.
The division of property under this Agreement sholl be in full
satisfaction of all marital rights of th~Pnarties.
The parties agree that Husband'1~na-d."i have full and sole
possession of the real and/or personal property in his or her 0..~'
possession. On or before the date of the execution of this
Agreement, the parties shall execute the documents necessary to
transfer title to the property, if appropriate, so as to effectuate
the transfer as herein provided. Furthermore, each party shall
become solely responsible for the financial obligation associated
with the property he or she is to retain pursuant to this Agreement
and each party agrees to indemnify and hold harmless the other
party from any and all liability therefore, except as otherwise
provided herein.
8. DEBTS, Husband represents and worrants to Wife that
since the separation he has not, and in the future he will not
contract or incur any debt or liability for which Wife or her
estate might be responsible, and he shall indemnify and save Wife
harmless from any and all claims or demands made against her by
reason of such debt or obligation incurred by him since the date of
said separation, except as otherwise set forth herein.
Wife represents and warrants to Husband that since the
separation she has not, and in the future she will not, contract or
incur any debt or liability for which Husband or his estate might
be responsible, and she shall indemnify and save Husband harmless
from any and all claims or demands made against him by reason of
such debts or obligations incurred by her since the date of said
separation, except as otherwise set forth herein.
9, MEDICAL INSURANCE. Husband shall provide medical
insurance for Wife for such period of time as it is available to
him without cost through his employment.
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10, ~I.I.EGE EXPENSES, The porties each acknowledge herein
thot it is their intent to contribute to the expenses associated
with the college or other post-high school education for their
child, to the extent that they are finonciolly able at thot timc,
Such expenses would include, without limitation, tuition, room and
board, lab fees, miscellaneous student fees, books and student
supplies, transportation expenses for summers and other school
breaks, clothing and miscellaneous spending money, however, the
provisions herein acknowledging the parties intent, shall not in
any manner, confer third party beneficiary rights unto their child
for the payment of said expenses. If applicable, both parents
shall be involved in and have input into the choice of academic
institutions selected by the child. Further, the child will be
required to apply for and to use all possible grants, scholarships
and work-study programs and any of his own income or assets before
the parties are responsible to contribute to his college expenses.
11. ALIMONY. In order to permit Wife to enjoy a lifestyle
substantially similar to that enjoyed during the marriage, Husband
shall pay to wife alimony in the amount of the total sum of $500.00
per month through January, 2006, The said alimony payments shall
terminate upon Wife's death or remarriage. Such payments shall be
taxable to Wife and deductible by Husband for federal income tax
purposes. Iu L11t: t:v'-l~t tnl.4L Lt.,!; IuLt:.LUQl R'-Vl;;;Ul,.l.1: .3C.LV~"-1;; ~lJ.uu.ld ~
deem aR:/ port i9R of ELI:: i::JGll.d allmuny pdymt;;:uLs non-dt=6uc.;1..1l.Jlt: Lo t
H\1~b~~~, hiD :alimgny Qbli:r:;!tien aLaI! there:aftgr Be:. .L.....Jtl~~a. b.1 c;LU
:1mQUllt o'111~1 ~n t:hp rimf""\l1n'" of t ilX :a.c.cgc.:gg Qn tR.a :alimony ]?:aym9Rto.
The parties stipulate and agree that the alimony payments from
Husband to Wife pursuant to this Agreement shall be in the form of
specific payments as follows until alimony is terminated, or this
Agreement is modified:
a. Husband shall pay Wife the sum of $339. B3 (Wife I s monthly
car lease payment and automobile insurance payment) until that
lease expires. Thereafter, Husband shall pay for comparable
reliable transportation of Wife'S choice and insurance until
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the oU.l11ony award terminates pursuont to the terms of this
Agreement. The parties acknowledge thot Wife shall be solely
responsible for ony increose in outol11obile insuronce resulting
from her negligence, Furthermore, Husbond shall pay directly
to Wife the difference between the $500.00 per month alimony
award and the car leose/insurance payments, which approximates
$160,00 per month, In addition to the $500.00 per month
alimony award, Husband sholl be responsible for any and all
maintenance to Wife's leased car through January, 2006, when
the alimony award terminates.
12. COUNSEL FEES AND COSTS. Husband and Wife each agree to
pay and be responsible for their own attorney's fees and costs
incurred with respect to the negotiation of this property
settlement agreement and the divorce proceedings related thereto,
13. ALIMONY, ALIMONY PENDENTE LITE, COUNSEL FEES AND
EXPENSES, Except for the provision heretofore made for alimony,
both parties accept the provisions of their Agreement in lieu of
and in full and final settlement and satisfaction of all claims and
demands that they may now or hereafter have against the other for
alimony pendente lite, counsel fees or expenses, or for any other
provisions for support and maintenance before, during and after the
commencement of any proceedings for the divorce or annulment
between the parties.
14. DIVORCE, A Complaint in Divorce has been filed to No.
98-388 Civil in the Court of Common pleas of Cumberland County,
Pennsylvania, and either party shall be free to proceed without
further delay to secure the divorce. Both parties shall sign an
affidavit evidencing their consent to the divorce, pursuant to
Section 3301(c) of the Divorce Code. In the event, for whatever
reason, either party fails or refuses to execute such affidavit
upon the other party's timely request, that party shall indemnify,
defend and hold the other harmless from any and all additional
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expenses, including actual counsel fees, resulting from any action
brought to compel the refusing party to consent. Each party hereby
agrees that a legal or equitable action may be brought to compel
him or her to execute a consent form and that, absent some breach
of this Agreement by the proceeding party, there shall be no
defense to such action asserted,
15. RECONCILIATION, Notwithstanding a reconciliation between
the parties, this Agreement shall continue to remain in full force
and effect absent a writing signed by the parties stating that this
Agreement is null and void.
16. INCORPORATION IN FINAL DIVORCE DECREE. The terms of this
Agreement shall be incorporated but shall not merge in the final
divorce decree between the parties, The terms shall be
incorporated into the final divorce decree for the purposes of
enforcement only and any modification of the terms hereof shall be
valid only if made in writing and signed by both of the parties.
Any Court having jurisdiction shall enforce the provision of this
Agreement as if it were a Court Order, This Agreement shall
survive in its entirety, resolving the spousal support, alimony,
equitable distribution and other interests and rights of the
parties under and pursuant to the Divorce Code of the Commonwealth
of Pennsylvania, and no court asked to enforce or interpret this
Agreement shall in any way change the terms of this Agreement.
This Agreement may be enforced independently of any support order,
divorce decree or judgment and its terms shall take precedence over
same, remaining the primary obligation of each party. This
Agreement shall remain in full force and effect regardless of any
change in the marital status of the parties. It is warranted,
covenanted and represented by Husband and Wife, each to the other,
that this Agreement is lawful and enforceable, and this warranty,
covenant and representation is made for the specific purpose of
inducing the parties to execute the Agreement.
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17, DATE OP EXECUTION. 'rhe "date of execution" or "execution
dote" of the Agreement shall be defined as the date upon which it
is executed by the porties if they have each executed the Agreement
on the same dote, Otherwise, the "date of execution" or "execution
dote" of this Agreement sholl be defined as the date of execution
by the party last executing the Agreement.
18. PULL DISCLOSURE. Each party asserts that he or she has
made or shall make a full and complete disclosure of all the real
and personal property of whatsoever nature and wheresoever located
belonging in any way to each of them, of all debts and encumbrances
incurred in any manner whatsoever by each of them, and of all
sources and amounts of income received or receivable by each party,
19. ENTIRE AGREEMENT, This Agreement contains the entire
understanding of the parties, and there are no representations,
warranties, covenants or undertakings other than those expressly
set forth herein.
20. BREACH. If either party breaches any provision of this
Agreement, the other party shall have the right, at his or her
election, either to pursue his or her rights in having the terms of
this Agreement enforced as an Order of Court or to sue for specific
performance or for damages for such breach, and the party breaching
this Agreement shall be responsible for legal fees and costs
incurred by the other in enforcing his or her rights under this
Agreement.
21. PENNSYLVANIA LAW. The parties agree that the terms of
this Agreement and any interpretation and/or enforcement thereof
shall forever be governed by the Laws of Pennsylvania.
22. WAIVER OR MODIFICATION TO BE IN WRITING. No modification
or waiver of any of the terms hereof shall be valid unless made in
writing and signed by both of the parties,
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23, ADDITIONAL INSTRUMENTS. Eoch of the porties shall from
time to time, ot the request of the other, execute, acknowledge,
and deliver to the other party any and all further instruments,
including Deeds and other real estate-related documents, titles, or
other documents that may be reasonobly required to give full force
and effect to the provisions of this Agreement.
24. ~EVERABILITY. 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 shall continue in full force, effect and operation,
25. WARRANTY. Husband and Wife again acknowledge that they
have each read and understand this Agreement, and each warrants and
represents that it is fair and equitable to each of them.
26, DESCRIPTIVE HEADINGS. The descriptive headings used
herein are for convenience only. They shall have no effect
whatsoever in determining the rights or obligations of the parties,
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF (~/l(jy)rld ,uf..'
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On this -L.J....::.. day of lll'l i1.li.J( , 2000, before
me, the undersigned officer, personolly appeared CHRISTY R. SMITH,
known to me (or satisfactorily proven) to be the person whose name
is subscribed to the within Agreement, and aCknowledged that she
executed the same for the purposes therein contained.
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K,r!lI{W K. MYllrs. Nolarv PulJli(~
LCrllIJYl10 llOlo. CUlllbnrlafl/J G1llttlly
My Corl1lni".!:lon Lwplr{H! D~(', ;? ;'nn:!
Mt'rllbel. l'nnrIJYtva~wl~1iOi"f:r.:-cti-:!:.:
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF Q\JM13l?~L"'ND
On this _'5t~ day of NO.h.M..../-;;:,.t..-r , 2000, before
me, the undersigned officer, personally appeared DAVID E. SMITH,
known to me (or satisfactorily proven) to be the person whose name
is subscribed to the within Agreement, and acknowledged that he
executed the same for the purposes therein contained.
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NOTARIAL SEAL
HELEN E. RASMUSSEN, Nolaiy Public
Camp Hill Borough, Cumberland Counly
MI' Commission expires Aug,2, 2003
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IN TilE couln OF COMMON PLEAS OF CUMnEI~LANI> COUNTY.
I'ENNSYLV ANIA
DA VII) E, SMITH.
I'laintiff
NO: 98-388
vs.
CHRISTY R, SMITH.
Defendant
CIVIL ACTION . LAW
IN mVORCE & CUSTOI>Y
PRAECII'E TO TRANSMIT RECORD
TO THE PROTHONOTARY:
Kindly transmit the record, together with the following infonnation, to the Court for entry
of a divorce decree:
1, The ground for divorce is irretrievable breakdown under Section 3301 (c) of the
Divorce Code,
2. The Complaint was filed on January 21, 1998,
3, Date and manner of Service of the Complaint: February 4, 1998 by way of both
Certified United States mail, Restricted Delivery, postage prepaid, Return Receipt Requested, as
evidenced by the Affidavit of Service filed February 6, 1998.
4, The Plaintifrs Affidavit of Consent was executed by the Plaintiff on November
IS, 2000, and filed on November IS, 2000, The Defendant's Affidavit of Consent was executed
on October 17, 2000, and filed on November 15,2000,
5, Plaintiff executed a Waiver of Notice of Intention to Request Entry of a Divorce
Decree under 3301 (c) of the Divorce Code on November 15,2000, and said waiver was filed on
November 15, 2000. Defendant executed a Waiver of Notice of Intention to Request Entry of a
Divorce Decree under 3301 (c) of the Divorce Code on October 17,2000, and said waiver was
filed on November 15, 2000.
6. There arc no related claims pending. The parties have resolved economic issues
by agreement. The parties have resolved custody issues by agreement.
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Respeelfillly submitted,
LA W OFFICES OF CRAIG A DIEHL
Dated: 1/ / /1 /OU
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IN THE COUItT OF COMMON I'LEAS OF CUMBERLANI> COUNTY,
PENNSYLVANIA
DAVID E. SMITH,
Plalntlrr
NO: 98- J to
~'-L~LL C 7 ;(........
vs.
CHRISTY R. SMITH,
Derendant
CIVIL ACTION - LAW
IN DIVORCE & CUSTODY
ORDER OF COURT
AND NOW, upon consideration or the attached complaint, it is hereby directed that
the parties and their respective counsel appear beforet:r\~ \.~~, the
concil,iator, at39 \-J. \-\oil\.~)I-\a.\i-f\id'f~) on the C)L\ day of -f"'~b. . 1998,
at.9 . 00 @/p,m,. ror a Pre-Hearing Custody Conference, At such Conference, an
effort will be made to resolve the issues in dispute; or ir this cannot be accomplished, to
define and narrow the issues to be heard by the Court, and to enter into a temporary order,
Failure to appear at the Conference may provide grounds for entry of 11 temporary or
pennanent order.
By the Court,
~uJ\\ sA.s\ UI~.
Custody Conciliator (~,)
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
aJMBERLAND C'OUNTY BAR ASSCX::IATION
2 LIBERTY AVENUE
CARLISLE, PENNSYLVANIA 171013
(717) 249-3166
IN THE COURT OF COMMON I'LEAS OF CUMBERLANI> COUNTY,
I'ENNSYL VANIA
,
, .
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DAVID E. SMITH,
Plaintiff
NO: 98-
VS,
,
CHRISTY R, SMITH,
Defendant
CIVIL ACTION - LAW
IN DIVORCE & CUSTODY
A VISO PARA DEFENDER Y RECLAMAR DERECHOS
l~
USTED HA SIDO DEMANDADO EN LA CORTE, Si de sea defenderse de las quejas
expuestas en las paginas seguientes, debe tomar accion con prontitud, se Ie avisa que si no se
defiende, el caso pude proceder sin usted y decreto de divorcio 0 anulamiento puede ser emitido
en su contra por las Corte. una decision puede tambien ser emitida en su contra por caulquier
otra queja 0 compensacion ecIamados por el demandante, Usted puede perder dinero, 0
propiedades u otros derechos importantes para usted,
Cuando la base para el divorcio es indignidades 0 rompimiento irreparable del
matrimonio, usted puede solicitar consejo matrimonial. Una Iista de consejeros matrimoniales
esta disponible en la oficina del Prothonotary, en la Cumberland County Court of Common
Pleas, I Courthouse Square, Carlisle, Pennsylvania.
.
.
SI USTED NO RECLAMA PENSION ALIMENTICIA, PROPIEDAD MARITAL,
HONORARIOS DE ABOGADO U OTROS GASTOS ANTES DE QUE EL DECRETO
FINAL DE DIVORCIO 0 ANULAMIENTO SEA EMTIDO, USTED PUEDE PERDER EL
DERECHO A RECLAMAR CUALQUIERA DE ELLOS.
USTED DEBE LEVAR ESTE PAPEL A UN ABOGADO DE INMEDIATO. SO
NO TIENE 0 NO PUEDE PAGAR UN ABOGADO, VAYA 0 LLAME A LA OFICINA
INDICADA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA
LEGAL,
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LAWYER REFERRAL SERVICE
of the Cumberland County Bar Association
2 Liberty A venue
Carlisle, PA 17013
Telefono (717) 249-3166
..
,
...
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IN THE COURT OF COMMON IILEAS OF CUMBERLAND COUNTY,
IIENNSYL VANIA
DA VID E, SMITH,
Plaintiff
NO: 98. .3 S f L~tr...Q -rD____.
vs,
CHRISTY R, SMITH,
Defendant
CIVIL ACTION - LAW
IN DIVORCE & CUSTODY
COMPLAINT IN DIVORCE
COUNT I
REOUEST FOR A NO.FAULT DIVORCE UNDER SECTION 3301(c) OR 3301(d)
OF THE DIVORCE CODE
AND NOW, comes Plaintiff, David E. Smith, by and through his attorneys, the Law
Offices of Craig A. Diehl, and files this Complaint in Divorce, respectfully stating in support
thereof the following:
1. Plaintiff is David E. Smith, an adult individual who resides at 25 Fieldcrest
Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17055,
2, Defendant is Christy R. Smith an adult individual who resides at 4443 North 26th
Street, Phoenix, Arizona 85015.
3. Plaintiff has been bona fide resident of the Commonwealth of Pennsylvania for at
least six months immediately prior to the filing of this Complaint.
'".
.....
4, The Plaintiff and Dcfcndant wcrc married 011 Dcccmhcr 29, 1994, in Santa Clara,
California,
5, The Plaintiff and Defcndant arc rcsiding in separate households.
6, The partics havc been scparate and apart since November 21, 1997,
7, There have been no prior actions in divorce or annulment between the parties,
8, The Defendant is not a mcmbcr of the anned forces of the United States or any
of its allies,
9, The Plaintiff avers that the marriage is irretrievably broken,
10, Plaintiff has been advised of the availability of counseling and that Plaintiff may
have the right to request that the Court require the parties to participate in counseling, The
Plaintiff does not desire counseling.
WHEREFORE, Plaimiff requests your Honorable Court to enter a Decree of Divorce.
COUNT II:
REOUEST FOR DETERMINATION OF CUSTODY
11. Paragraphs 1-10 are incorporated herein as if fully set forth,
12. Plaintiff seeks custody of Michael D, Smith, age 9, born January 9, 1988, who
presently resides at 25 Fieldcrest Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17055,
The child was not born out of wedlock,
The child is presently in the custody of Plaintiff at 25 Fieldcrest Drive, Mechanicsburg,
Cumberland County, Pennsylvania, 17055,
During the past five (5) years, the child has resided with the listed individuals at the
following address:
.".
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Name
Address
Date
David E, Smith
25 Fieldcrest Drive
Mechanicsburg, PA 17055
11/21/97 to present
David E. Smith &
Christy Smith
25 Fieldcrest Drive
Mechanicsburg, PA 17055
8/96 to 11/21/97
David E, Smith &
Christy Smith
John Farrance (Uncle)
Linda Farrance (Aunt)
215 Indian Creek Drive
Mechanicsburg, PA 17055
6/96 to 8/96
David E. Smith &
Christy Smith
2616 Dallas NE # 6
Albuquerque, NM 87110
8/93 to 6/96
David E, Smith &
Christy Smith
7016 Prospect Ave,NE #26
Albuquerque, NM 87110
9/91 to 8/93
The father of the child is Plaintiff, David E. Smith, who currently resides at 25 Fieldcrest
Drive, Mechanicsburg, Pennsylvania, 17055. He is married,
The mother of the child is Defendant, Christy R. Smith, who currently resides at 4443
North 26th Street, Phoenix, Arizona 85015. She is married.
13, The relationship of Plaintiff to the child is that of father. The relationship of
Defendant to the child is that of mother,
14, Plaintiff has not participated as a party or witness, or in another capacity, in other
litigation concerning the custody the child in this or another court.
IS, Plaintiff has no information of a custody proceeding concerning the child pending
in a court of the Commonwealth.
.'
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16, Plaintiff does not know of a person not a party to the proceedings who has physical
custody of the child or claims to have custody or visitation rights with respect to the child,
17. The best interest and penn anent welfare of the child will be served by granting the
relief requested because:
a. Plaintiff has shared being the primary caretaker of the child since the
child's birth and wishes to become the primary caretaker; and
b, Plaintiff has served as sole caretaker of the child since November 21,
1997, and wishes that he be designated as the primary caretaker; and
c. The parties are presently separated within the meaning of the Pennsylvania
Divorce Code; and
d. Plaintiff can provide a stable home environment for the child; and
e, Plaintiff is fearful for the child's emotional and psychological welfare as
Defendant suffers from menTal disorders for which she has been hospitalized; and
f, Plaintiff is fearful for the child's emotional, physical and psychological
welfare as Defendant has a problem with excessive alcohol consumption and ingestion
of other drugs for which she has had documented confrontations and citations with
authorities, as well as been forced to seek treatment. In the past Defendant, when under
the influence of alcohol, has mentally abused both Plaintiff and the child, and Plaintiff
fears that in his absence in the future, Defendant's malice toward the child will only get
worse; and
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WHEREFORE, Plaintiff, David E, Smith, respectfuf/y requests that this court grant
primary physical custody of the child, Michael D. Smith, to the Plaintiff with partial custody
to the Defendant on those dates the parties can agree upon.
Respectfully submitted,
LA W OFFICES OF CRAIG A, DIEHL
Date: \lltl\Ui:ltl<,j-;;IO 1 1~<;8
Attorney for Plaintiff
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
DAVID E. SMITH,
Plaintiff
NO: 98-
vs,
CHRISTY R. SMITH,
Defendant
CIVIL ACTION - LAW
IN DIVORCE & CUSTODY
VERIFICATION
" ,
I, David E, Smith, verify that the statements made in the foregoing COMPLAINT IN
DIVORCE are true and correct to the best of my knowledge, infonnation and belief. 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,
Date:
'/:/0/99
David E. Smith, Plaintiff
"
Law Officts of
CRAIG A, DIEHL
'---" 'V
3484 TRINDlE ROAD
CAMP Hill, PA 17011
(717)7113-71113
402 N. "'~TII1lffiEET
SPRING GROVE, PA 17382
(717)225.1929
-
IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
I'ENNSYL VANIA
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DAVID E. SMITH,
Plnintiff
NO: 98-388
l
"
VS.
CHRISTY R, SMITH,
Dcfcndnnt
CIVIL ACTION - LAW
~
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IN DIVORCE & CUSTODY
AFFIDAVIT OF SERVICE
I, Jeffrey C. Goss, Esquire. counsel for the Plaintiff, David E. Smith, do hereby
affirm that a true and correct copy of the return receipt of the Complaint in Divorce nnd
Custody sent by Certificd Mail, Restricted Delivery, Return Receipt Requested, which return
receipt appears to contain the signature of Christy R, Smith, is set forth below. The
undersigned understands that the statements therein are made subject to the penalties of 18
Pa.C.S,A, Section 4904 relating to unsworn falsification to authorities,
".......
Date +~crS
1'1'18
By:
s
oss, Esquire
L1W Of s of Craig A, Diehl
3464 Trindle Road
Camp Hill, PA 17011
1717) 76:1-761:1
<:; SENDER:
:2 _Complalo Iloms, and/or 210r additional sarvlcell.
III -ComplOIO lloml:l. 48. pnd 4b.
~ -P,int you, name and adtJlon on tho ,eyurle 01 thlslorm 10 lhal wa can ralum this
... card 10 you.
~ -A11ach lhi.lorm 10 tho r,onl ollho mallploeo. or on lho baek II.pace doel 001
f! pollnil.
IU -WritD 'Roturn Reeo/pl Roquo'fod' on tho mairploco bolow Iho ar1leh, numbor,
.; . Tho Rolum Rocoipl win show 10 whom tho anidu wal dollvOIUd amJ Iho dola
t:: dolivored.
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MS CHRISTY R SMITH
215 INDIAN CREEK OR
MECHANICSBURG, PA 17055
I also wish 10 ,acalva Ihe
following servlcas (lor an
extra lea): Ii
1, 0 Addrassae's Addrass e
2. ~ Reslriclad OeUvery c1:
Consult postmaster for too. ~
4a. Article Numbor ~
P 224 568 176 E
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o Express Mall 0 Insured
o Relum Re<:elpllor Merchanllse 0 COO
7. Dale 010 iva.,. C'
p-t.(ICCl
8. Address.a's Addrass (Only if requested
and fee /s po/d)
5. Rocoivod Oy: (Ptin, Nama)
Domestic Return Receipl
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SOCIAL SECUIUTY INFOJ~MATION SHEET
PURSUANT TO 23 Pu,C,S.A. SECTION 4304,1 (u)(3) ALL DIVORCES MUST INCLUDE THE
PARTIES SOCIAL SECURITY NUMBER,
PLEASE FILL IN THE APPROPRIATE INFORMATION AND RETURN TO THE
PROTHONOTARY'S OFFICE,
DATE:
November 15. 2000
DOCKET NUMBER: 98-388
PLAINTIFF/PETITIONER SS#: 545-45-3347
NAME:
Duvid E, Smith
DEFENDANT/RESPONDENT SS#: 570-53-9157
NAME:
Christy R, Smith
SOCIAL SECUIUTY INFORMATION SHEET
PURSUANT TO 23 Pn.C,S,A, SECTION 4304,( (1l)(3) ALL DIVORCES MUST INCLUDE THE
PARTIES SOCIAL SECURITY NUMBER,
PLEASE FILL IN THE APPROPRIATE INFORMATION AND RETURN TO THE
PROTHONOTARY'S OFFICE,
DATE:
November 15, 2000
DOCKET NUMBER: 98-388
PLAINTIFF/PETITIONER SS#: 545-45-3347
NAME:
DllVid E, Smith
DEFENDANT/RESPONDENT SS#: 570-53-9157
NAME:
Christy R, Smith
LAw Officts of
CRAIG A. DIEHL
"----,
3~1l4 TRINDlE ROAD
CAMP Hill, PA 11011
(111) 1113-11113
402 N. MAIN SmEET
SPRING ~~PA 11382
(111) 225,10'20
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
DAVID E. SMITH,
Plaintiff
,i
NO: 98-388
vs,
CHRISTY R. SMITH,
Defendant
CIVIL ACTION - LAW
IN DIVORCE & CUSTODY
AMENDMENT TO COMPLAINT IN DIVORCE
COUNT I
REOUEST FOR A NO-FAULT DIVORCE UNDER SECTION 330Hc) OR 330Hdl
OF THE DIVORCE CODE
AND NOW, comes Plaintiff, David E, Smith, by and through his attorneys, the Law
Offices of Craig A, Diehl, and files this Amendment to Complaint in Divorce, respectfully
stating the following:
2. Defendant, Christy R. Smith, currently resides at 215 Indian Creek Drive,
Mechanicsburg, Pennsylvania 17055,
Resp~c;lruily submitted,
LAW OFFICES OF CRAIG A, DIEHL
Date~ )L\')UW,'O ;;1'), 1'l1f1
-',
By:
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--rcffrey ,
Attorn~ I . No, 78732
3464 Trindlc Road
Camp Hill, PA 17011
Attorney for Plaintiff
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0APR 0 8 1998
DAVID E. SMITH,
Plaintiff
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
vs.
: NO. 98-3BB
CIVIL TERM
:
CHRIS1~ R. SMITH,
Defendant
: CIVIL ACTION - LAW
IN CUSTODY
ORDER OF CXXJRT
AND fOi, this 7th day of April, 199B, the Conciliator, being
advised by Plaintiff's counsel that the parties and counsel did not attend
the Conciliation Conference scheduled for April 7, 1998 because a CUstody
Agreement had been reached, hereby relinquishes jurisdiction in this case.
FOR THE COURT,
,...-.,
d. Co-<.4I.../J-L...-..of!ov,
Dawn S. Sunday, Esquirl1-
CUstcdy Conciliator
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2, l'IIYSIC,\1. ClISTOIlY, Falher shall have primary physieul custody of the Child,
3, l'AIlTIAI, I'II\'SICAI. CIISTOIl\', MOlher shall have partial physical custody of the
Child as lilllows:
(I) Generallv, In addition to the following scheduled limes, Mother shall have
custody atlllher limes to he agreed upon hy the parlics,
(2) Weeklv,
A. Every Tuesday and Thursday, Mother shall enjoy physical custody
of Ihe Child from 4:30 p.m. to 9:30 p,m. Mother shall be
responsible for picking the Child up atlhe residence of the Child's
day care provider siluated at 6 Lilac Drive, Mechanicshurg, PA
17055, Father shall be responsible filr picking the Child up at the
home of Ihe Mother at 9:30 p,m.
B, Every week, Mother shall be entitled to physical custody of the
Child from 4:30 p,m, Friday to 5:30 p,m, Saturday. Mother shall
be responsible for picking the Child up at the residence of the
Child's day care provider situated at 6 Lilac Drive,
Mechanicsburg, PA 17055, Father shall be responsible for picking
the Child up at the home of Ihe Mother at 5:30 p,m. Saturday.
(3) Holidavs. On holidays the parties will altempt Ie> coordinate a mutually
agreeable schedule so that the Child is able to spend time with each of his
parents on all major holidays. On the following holidays the parties
specifically agree as follows:
A. Mother's Dav/Fatber's Dav. Mother shall enjoy the right to
visitation with the Child at the home of the Mother every Mother's
Day from 8 a,m, to 5 p.m. Father shall enjoy the right to
visitation wilh the Child at the home of the Father every Fmher's
day from 8 a.llI. to 5 p.m.
B. Michael's Birthdav. Mother and Father shall each have time wilh
the Child on the Child's birthday, January 9,
(4) Vacatioll. Mother and Father shall each be entitled to three full weeks of
vacation with the child during summer school/preschool/day-care recess.
Mother and Father agree that each will notify the other of such vacation
period three weeks prior to the time set for the vacation period to start.
4. NOTICE. In the event that either party is unable to exercise his/her right to
physical custody, such parry agrees to provide the other wilh at least twenty-four (24) hours
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advance notice.
5, TltANSI'OII'I'/\'I'ION, Excepl as otherwise provided for ahove. Falhcl' shall hc
responsible till' dropping the Child off at the home of the MOlhcr al sllch timc(s) whcn the
Mother's physical custody is sel to COllllllence. Mother shall then he responsihlc for dropping
the Child off atthc hOlTle of the Father at sllch timc when the physical eustody is sctlo end,
6, SEAT BELTS, Both partics shall utilize seat hells whentransporling the Child hy
1110tor vehicle,
7. AumlEss ANI! l'ELEI'I/0NE N1JMJlER. Eaeh parent shall keep the olher parcnt
nOlitied as 10 his or her address and telephone numhcr al which he or she can be reached at all
times.
8, POSITIVE RELATIONSIIII'S. Both parellls shall encourage the Child to love and
respect the other and shall nol make, nor allow others to make, in the prcsence of the Child,
derogatory commenls about the olher parent. Further, each parent shall encourage the Child to
have contact wilh the olher parent, and shall make cerlHin thai the Child is ready on time for the
transfer of the Child from one parent to the other at those times the parties agree upon,
9. SUJlSTANCE AJlUSE. Both parties agree that they will refrain from drinking
alcohol to excess and ingesting any illegal narcotic when in Ihe presence of Child or when Child
is in their physical cuslody, Both parties agree that they will refrain from smoking cigarelles
when in the presence of Child,
10. WAIVER. The partics hereby waive the requircmelll of Rule 19,15,7 requcsting
that they and their Child be present before the Court to present this Agreemcnt and further
intend this Agreement to be entered as an Order of the Court of Common Pleas of Cumberland
County. Pennsylvania, subject to modifications as provided by law.
11. REPRK~ENTATlON. The parties declare that each has had a full and fair
opportunity 10 obtain legal advice of counsel of his or her selection; that Father. David E. Smith,
has been independently represented by counsel. Jcffrey C, Goss. of Law Oftices of Craig A,
Diehl. and that Mothcr, Christy R. Smith, has been illfol'med and undersTands that she has a
right to be represellled by independent legal counsel and Mother has been encouraged to oblain
legal counsel, and has decided not to do so, All partics have been informed of the purpose of
this Agreement :md its legal effects :md consequences.
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COMMONWEALTH OF I'ENNSYLVANIA
ss
COUNTY OF CUMUERLAND
On the
/3 it... day of April, 1998. hefore me. the undersigned officer. personally
appeared CHRISTY R, SMITH. known to me (or satisfactorily proven) to he the person whose
name is subscribed to the within Agreement as 10 Custody. and acknowledged that she executed
the same for the purposes therein contained,
IN WITNESS WHEREOF. I hereunto set my hand and official seal.
NalalIaI SeeJ
K8nrIIlIl L. Scl1Mgel, Notary Public
......' 1Wp;L~ COunty
..., CoinmIIaIol1 """,res March 15, 200'
Member. PennsylVi!nl~ .~ssOcli'lior, .,1 "'. ". .
COMMONWEALTH OF PENNSYLVANIA
SS
COUNTY OF CUMBERLAND
On the :3 tl.
day of April. 1998. before me. the undersigned officer. personally
appeared DAVID E, SMITH, known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within Agreement as to Custody, and acknowledged that he executed
"
the same for the purposes therein contained.
, ,
;:
IN WITNESS WHEREOF. I hereunto set my hand and official seal.
JIL[ i?
~NOTAR -puhuc
NOTARIAL SEAL
HELEN E, RASMUSSEN, NOlary Public
Camp Hill Borouoh. Curnborland County
My Commis'lion EKpires Aug, 2. 1999
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