HomeMy WebLinkAbout98-01248
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
STATE OF
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MARTHA.S.HIIRNER,
N().~fl~P4fl qVJ]:LH \<) 98
Plaintiff
V ('I'...;t\S
. ROBERT. H. HARNER,
Defendant
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DECREE IN
D I V 0 R C E c.::r I~:o ? f'P1.
':f ~ ~ 7 , ,dllflIl it is ordered and
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AND NOW,
decreed that
MARTHA S. HARNER
. , , , , , , " plaintiff,
. , ., defendant,
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and"...." ...... . ROBERT, H,.. .HARNER.
are divorced from the bonds of matrimony.
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* The court retains jurisdiction of the following claims which hove
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be the sole and separate property of husband free of any
claim by wife. Husband (Jgrees to pay and satisfy, in
accordance with those terms, any debts or obligations owed
by that corporation or the business with which it operates
on which wife may be liable and to indemnify her from any
loss, cost or expense caused by his failure to do so,
4. Wife shall transfer to husband by special warranty deed
to be delivered at the time for settlement as provided for
hereinbelow, all of her right, title and interest in and to
the commercial pr'operty improved with a funeral home known
and numbered as 1903 Market Street in Camp Hill, Cumberland
County, Pennsylvania. Husband shall be responsible to pay
and satisfy, in accordance with their terms, any debts or
obligations which encumber the title to said property and
shall indemnify and save wife harmless from any costs or
loss or expense caused to her by his failure to do so,
5, During the marriage the parties each acquired
individual retirement accounts with Merrill Lynch. Wife
hereby waives and releases any claim to or interest in
husband's IRA and confirms that to be the sole and separate
property of husband. Wife pre'Tiously liquidated her IRA and
husband waives and releases any claim to that asset or its
proceeds and confirms them to be the sole and separate
property of wife.
6. The parties hold in their joint names an investment
account with Merrill Lynch which has a value today of
approximately $45,000,00. Husband will execute today a
letter directing Merrill Lynch to transfer that account into
the sole name of wife and will deliver that to wife or her
attorney promptly upon the execution of the affirmation of
this agreement, Wife shall be the sole and separate owner
of that account and the assets in it from and after today
and shall be responsible to manage that account and pay any
taxes that may be imposed upon her liquidation or withdrawal
of any funds in that account in the future.
7, During the marriage the parties had a joint investment
account with Raymond James, which \"as also known as the
Passport Investments account. The parties made various
withdrawals and disbursements from that account during the
marriage and each of them received funds from that account.
The parties confirm the funds received by the other to be
that party's property and each of the parties waives any
further claim to that account or any share of the funds in
that account received by the ether.
8. ,At or about the time of separation wife withdrew
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approximately $21,000.00 from accounts held by Myers-Harner
Funeral Home, Inc., or oUwrwise aSfwclal:od with that
entity, Husband confirms those funds to bo wife's solo and
separate property and waives any further claim to those on
behalf of himself or the saId corporation.
g, Wife is the owner of a 1997 Sebring automobile which
had previously been titled in the name of Myers-Harner
Funeral l'Iome, Inc. The parties agree that that vehiclo
shall be the sole and separate property of wife and husband,
for himself and the corporation, hereby waives any interest
in or claim to said vehicle. In consideration therefor,
wife hereby waives any claim to or interest In any motor
vehicles owned or title in the name of husband or
Myers-Harner Funeral Home, Inc., specHical.1y includinq a
1994 Jeep Grand Cherokee and any other vehicle owned or
titled in the name of the corporation.
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10, Each of the parties lives was insured during the
marriage by a policies of insurance issued by the Lutheran
Brotherhood Insurance Company and the parties acknowledge
that those policies had accumulated cash value as of the
date of separation, The parties agree that each of them
shall be the owner of those policies, including any cash
value which has accumulated in the policies and each of the
parties hereby waives any claim to or interest in the
policies of insurance held by the other or the cash proceeds
of those policies of insurance,
11. Wife is the owner of certain
other items of personal ornament.
any claim to or interest in those
be the sole and separate property
items of jewelry, furs and
Husband hereby waives
items and confirms them to
of wife.
12. Husband is the owner of a one-third interest in a
Pontoon boat. Wife hereby waives and relinquishes any claim
to or interest in said asset and confirms that to be the
sole and separate property of husband.
13. During the marriage the parties loaned money to a
gentleman named Scott Sprucebank. Wife hereby transfers to
husband all of her right, title and interest in and to said
debt and the right to collect it and confirms that to be the
sole and separate property of husband.
14. Husband is a member of the West Shore Country Club.
Wife waives any claim to or interest in that membership and
confirms it to be the sole and separate property of husband.
15, Husband shall pay to wifa, at the settlement provided
for hereinbelow, the sum of $400,000,00, It is
contemplated that husband will raise such funds by
refinancing the residence and commercial property and,
perhaps, his interest in Myers-Harner Funeral Home, Inc"
and that it will take him some reasonable amount of time to
arrange the financing. The parties further agree,
therefore, as follows:
A) Husband shall, within ten days of today's date
make formal application for loans necessary to raise such
funds with at least two lending institutions.
B) As soon as the IEmding is approved and the funds
are available, the parUes will meet to conduct a
settlement, at which time, wife or her representative will
deliver to husband a deed to the residence on Wynnewood
Road, a deed to the commercial property on Market Street,
and any other docwnents reasonably required to convey those
properties and any of the other assets set forth in this
agreement that are to go to husband and to waive any claim
that she might have in the real estate so as to allow the
mortgage settlement to be concluded.
C) At such settlement, contemporaneously with the
delivery of the deeds and other documents, husband or his
representative will pay to wife or her representative the
sum of $400,000.00,
0) It is contemplated that these financial
arrangements will be in place so that the settlement can be
concluded in less than 90 days. The parties agree that they
will cooperate with each other and with their attorneys and
other representatives and with the mortgage company to
accomplish the settlement as soon as practical hereinafter.
16. The parties have previously divided their furniture,
appliances and other items of tangible household goods.
Each of the parties shall retain those items now in their
possession free of any claim from the other and this
agreement shall have the same effect as a release and a bill
of sale from one party to the other of all such items of
tangible personal property now in each party's possession,
17. During the marriage the parties had acquired certain
bank accounts either in separate names, joint names, or the
name of the corporation, Myers-Harner Funeral Home, Inc.,
including accounts at Harris Savings Bank, Pennsylvania
State Bank, and America funds, I,ach of the parties waives
any claim to or interest in any of those accounts now held
in the name of the other or in the name of the corporation
and confirms those accounts and any funds in them to be the
sole and separate property of whoever is the titled owner of
the accounts on this date.
18. There is currently pending before this Court an order
of alimony pendente lite which obligates husband to make
cash payments of alimony pendente lite to wife, The
parties agree that, until the settlement provided for herein
and until payment is made to wife and the deeds are
delivered at that settlement, husband shail continue to make
payment of that alimony pendente lite to wife through the
Domestic Relations Office. Immediately after settlement,
both parties, by their attorneys, will advise the Domestic
Relations Office to terminate the order entered in the
Domestic Relations Office to docket No, DR 27919 PACES ID
No. 814100330, No, 98 - 1248. Wife and husband waive all
further claims to spousal support, alimony, or alimony
pendente 11te whether they have been raised in this case to
date or not. Both parties further waive any claim to
counsel fees, costs, expenses, experts witness fees, or the
like whether they have been raised in this action up until
now or not.
19. The parties acknowledge that they have exchanged
extensive information during the pendency of this action,
that each of them have filed pretrial statements and engaged
in formal and informal discovery. Each of the parties
acknowledge they are aware of their right to have the Court
decide all of the economic issues raised in their case and
have decided, voluntarily, to waive that right and to accept
the terms and provisions of this agreement as satisfying and
resolving all of the economic issues between them and any
economic claim the other has as set forth herein, with the
reservation only of claims relating to child support and
child custody,
20, Except as herein otherwise provided, each party may
dispose of his or her property in any way and each party
hereby waives and relinquishes any and all rights he or she
may now have or hereafter acquire under the present or
future laws of any jurisdiction to share in the property or
the estate of the other as a result of the marital
relationship including without limitation, statutory
allowance, widow's allowance, right of intestacy, right to
take against the will of the other, and right to act as
administrator or executor in the other's estate. Each will
at the request of the other execute, acknowledge, and
deliver any and all instruments which may be necessary or
advisable to carry into effect this mutual waiver and
reiinquishment of all such interest, rights, and claims.
it?
MR. HARNER: No.
MR, ANDES: Are you satisfied that you
unders tand it?
MR, HARNER: Yes,
MR. ANDES: You and I, and I'm sure your wife
and her attorney, over the last two weeks have spent a lot
,of time reviewing assets and preparing for the hearing that
was scheduled to start this morning; is that correct?
MR, HARNER: Yes.
MR. ANDES: Are you satisfied that you were
aware of what the financial claims are in the case and that
there is no unanswered question about those assets and
liabilities?
MR, HARNER: Yes.
MR, ANDES: Knowing all of that, is the
agreement that I dictated and that she is typing up,
satisfactory to you?
MR. HARNER: Yes.
MR, ANDES: Do you understand that whether we
ever sign a piece of paper or not, we are making a
representation to the Court that this is the agreement we
have made and we are willing to be bound by it whether it is
in writing and signed by you or not?
MR. HARNER: Yes,
MS, DALEY: Martha, you just hear<;J Mr. Andes
go through the details of the settlement; you were present
to hear him dictate those, were you not?
MS. HARNER: Yes.
MS. DALEY: And is that identical to the
information that you and I have discussed since we reached
our settlement last evening at 10:00 p.m,?
MS. HARNER: Yes.
MS, DALEY: You and I have had a chance to
review all of the financial documents, review tax returns,
review reports of experts and the like, do you have any
questions about any of the assets that remain unanswered at
this point:?
MS. HARNER: No.
MS. DALEY: Knowing that, you will be bound
by the provisions of this agreement forever. There will be
no changing your mind about this, that this is a full and
final settlement of all claims between the two of you. Are
you asking the Court to adopt this as its final order?
j..
II
MS. HARNER: Yes.
5. Neither PlaintitTnor Defendant is in the military or naval service of the United States
or its allies within the provisions of the Soldiers' and Sailors' Civil Relief Act of the Congress of 1940
and its Amendments,
6, PlaintitT avers that there are three children of the parties under the age of 18, namely:
A, Joseph Patrick Harner. born March 23, 1981
B. Elizabeth Ashley Harner, born May 10, 1983
C. Katherine Leslie Harner, born May 10, 1983
7. The cause(s) of action and section(s) of Divorce Code under which Plaintiff is
proceeding are:
A. Section 3301(c), The marriage of the parties is irretrievably broken,
After ninety (90) days have elapsed from the date of the filing of this Complaint,
Plaintiff intends to file an Affidavit consenting to a divorce, PlaintitT believes that
Defendant may also file such an Affidavit.
B. Section 3301(d). The marriage of the parties is irretrievably broken.
The Plaintiff and Defendant separated on March 4, 1998.
8, There have been no prior actions in divorce between the parties,
9, Plaintiff has been advised of the availability of counseling and that Plaintiff may have
the right to request the parties to participate in counseling.
10. The parties may enter into a written agreement with regard to support. custody,
visitation of childrell, alimony and property division. In the event that such an agreement is executed
by the parties, the agreement may be incorporated by the Court into the final Decree of Divorce.
WHEREFORE, PlaintilT requests your Honorable Court to enter a Decree in Divorce,
divorcing Plaintiff and Defendart.
COUNT II
EQUIl'AIJLE DISTRIBUTION
II. Paragraphs I through 10 of this Complaint are incorporated herein by reference as
though set forth in full.
12. Plaintiff and Defendant have acquired property, both real and personal during their
marriage from the date of their marriage until March 4, 1998, the date of their separation,
13. Plaintiff and Defendant have been unable to agree as to an equitable division of said
property.
WHEREFORE, Plaintiff requests your Honorable Court to equitably divide all marital
property,
COUNT III
ALIMONY
14, Paragraphs I through 10 of this Complaint are Incorporate~ herein by reference as
though set forth in full,
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Pla~ntiff also filed an interim petition for counsel fees
and costs on January 14, 1999. The Master expects that
after discussion with counsel that the agreement will relate
that the claims for alimony and counsel fees and costs will
be withdrawn so we are left then with the settlement
agreement dealing with specifically the terms relating to
the equitable distribution of marital assets.
The parties were married on September II,
1976, and separated March 4, 1998. They were three
children born of the marriage, Joseph P., born 23, 1981;
Elizabeth A" born May 10, 1983; Katherine L., born May 10,
1983. Joseph is currently in college and the two daughters
are in the custody of the father/husband.
An agreement 'is going to be placed on the
record in the presence of the parties. The agreement as
placed on the record will be considered the substantive
agr~ement of the parties not subject to any changes or
modifications except for correction of typographical errors
which may be made during the transcription, The agreement
is going to be transcribed and a draft will be provided to
counsel and the parties to review for typographical errors.
After any corrections of typographical errors are made, the
parties will be asked to affix their signatures by way of
affirmation of the terms of settlement which are being
placed en the record at this time, Specifically noted is
that the parties are bound by the terms of this agreement
after they leave the headng room today even though there is
no affirmation of the terms by signing following today's
meeting,
After the agreement has beon returned to the
Master by counsei and the partIer;, the Master ~I.ill prepare
an Drder vacating his appointment so that counsel can fiie a
praecipe transmitting the record to the Court requesting a
final decree in divorce. Mr. Andes.
MR. ANDES: The partIes have agreed as
follows, and for purposes of this document, the Plaintiff,
Mrs. Harner will be referred to as wife and the Defendant,
Mr. Harner, will be referred to as husband:
1, This agreement will not make any disposition of claims
for child custody or support which will be addressed in
other actions now pending before the Court in which orders
have presently been entered, although it is anticipated that
at least the child support matter will be resolved
separately and be modified in the future.
2. Wife shall convey to husband by special warranty deed
delivered at the time for the settlement as provided for
hereinbelow, all her right, title and interest in the family
residence at 852 Wynnewood Road, Camp Hill, Pennsylvania,
subject to any mortgage or other lien against the property
as of this date, and husband shall be responsible to pay and
satisfy in accordance with its terms any obligation which
encumbers that property and to indemnify and save wife
harmless from any cost or eXpense caused to her by his
failure to do so,
3. Wife hereby waives and releases any claim to or
interest in Myers-Harner Funeral Home, Inc., and the
business which it operates in Camp Hill, Pennsylvania, and
confirms that business and the stock in the corporation to
be the sole and separate property of husband free of any
claim by wife, Husband agree~ to pay and satisfy, in
accordance with those terms, any debts or obligations owed
by that corporation or the business with which it operates
on which wife may be liable and to indemnify her from any
loss, cost or expense causod by his failure to do so.
4. Wife shall transfer to husband by special warranty deed
to be delivered at the time for settlement as provided for
hereinbelow, all of her right, title and interest in and to
the conunercial property improved wi.th a funeral home known
and numbered as 1903 Market Street in Camp Hill, Cumberland
County, Pennsylvania. Husband shall be responsible l'o pay
and satisfy, in accordance with their terms, any debts or
obligations which encumber the title to said propfClrty and
shall indemnify and save wife harmless from any costs or
loss or expense caused to her by his failure to do so.
5, During the marriage the parties each acquired
individual retirement accounts with Merrill Lynch, Wife
hereby waives and releases any claim to or interest in
husband's IRA and conU rms tha t to be the sole and separate
property of husband, Wife previously liquidated her IRA and
husband waives and releases any claim to that asset or its
proceeds and confirms them to be the sole and separate
property of wife.
6. The parties hold in their joint names an investment
account with Merrill Lynch which has a value today of
approximately $45,000.00. Husband will execute today a
letter directing Merrill Lynch to transfer that account into
the sole name of wife and will deliver that to wife or her
attorney promptly upon the execution of the affirmation of
this agreement. Wife shall be the sole and separate owner
of that account and the assets in it from and after today
and shall be responsible to manage that account and pay any
taxes that may be imposed upon her liquidation or withdrawal
of any funds in that account in the future,
7. During the marriage the parties had a joint investment
account with Raymond James, which was also known as the
Passport Investments account. The parties made various
withdrawals and disbursements from that account during the
marriage and each of them received funds from that account.
The parties confirm the funds received by the other to be
that party's property and each of the parties waives any
further claim to that account or any share of the funds in
that account received by the other.
B. At or about the time of separation wife withdrew
approximately $21,000.00 from accounts held by Myers-Harner
Funeral Home, Inc" or otherwise associated with that
entity, Husband confirms those funds to be wife's sole and
separate property and waives any further claim to those on
behalf of himself or the said corporation.
9. Wife is the owner of a 1997 Sebring automobile which
had previously been titled in the name of Myers-Harner
Funeral Home, Inc. The parties agree that that vehicle
shall be the sole and separate property of wife and husband,
for himself and the corporation, hereby waives any interest
in or claim to said vehicle. In consideration therefor,
wife hereby waives any claim to or interest in ~ny motor
vehicles owned or title in the name of husband or
Myers-Harner Funeral Home, Inc., specifically including a
1994 Jeep Grand Cherokee and any other vehicle owned or
titled in the na~e of the corporation.
10. Each of the parties lives was insured during the
marriage by a policies of insurance issued by the Lutheran
Brotherhood Insurance Company and the parties acknowledge
that those policies had accumulated cash value as of the
date of separation, The parties agree that each of them
shall be the owner of those policies, including any cash
value which has accumulated in the policies and each of the
parties hereby waives any claim to or interest in the
policies of insurance held by the other or the cash proceeds
of those pOlicies of insurance.
11. Wife is the owner of certain
other items of personal ornament.
any claim to or interest in those
be the sole and separate property
items of jewelry, furs and
Husband hereby waives
items and confirms them to
of wife.
12. Husband is the owner of a one-third interest in a
Pontoon boat. Wife hereby waives and relinquishes any claim
to or interest in said asset and confirms that to be the
sole and separate property of husband,
13. During the marriage the parties loaned money to a
gentleman named Scott Sprucebank, Wife hereby transfers to
husband all of her right, title and interest in and to said
debt and the right to collect it and confirms that to be the
sole and separate property of husband.
14. Husband is a member of the West Shore Country Club.
Wife waives any claim to or interest in that membership and
confirms it to be Lhe sole and separate property of husband,
15. Husband shall pay to wife, at the settlement provided
for h",reinbelOl'/, tho sum of $400,000,00, It is
contemplated that husband wili raise such funds by
refinancing the residence and commercial property and,
perhaps, his tnterest in Myers-Harner Funeral, Home, Inc.,
and that it will take him some reasonable amount of time to
arrange the financing. The parties further agree,
therefore, as follows:
A) Husband shail, within ten days of today's date
make formal application for loans necessary to raise such
funds wIth at least two lending Institutions.
B) As soon as the iending is approved and the funds
are available, the parties will meet to conduct a
settlement, at which time, wife or her representative will
deliver to husband a deed to the residence on Wynnewood
Road, a deed to the commercial property on Market street,
and any other documents reasonably required to convey those
properties and any of the other assets set forth in this
agreement that are to go to husband and to waive any claim
that she might have in the real estate so as to allow the
mortgage settlement to be concluded.
C) At such settlement, contemporaneously with the
delivery of the deeds and other documents, husband or his
representative will pay to wife or her representative the
sum of $400,000,00.
0) It is contemplated that these financial
arrangements will be in place so that the settlement can be
concluded in less than 90 days. The parties agree that they
will cooperate with each other and with their attorneys and
other representatives and with the mortgage company to
accomplish the settlement as soon as practical hereinafter,
16, The parties have previously divided their furniture,
appliances and other items of tangible household goods.
Each of the parties shall retain those items now in their
possession free of any claim from the other and this
agreement shall have the same effect as a release and a bill
of sale from one party to the other of all such items of
tangible personal property now in each party's possession.
17, During the marriage the parties had acquired certain
bank accounts either in separate names, joint names, or the
name of the corporation, Myers-Harner Funeral Home, Inc.,
including accounts at Harris Savings Bank, Pennsylvania
State Bank, and America funds. Each of the parties waives
any claim to or interest in any of those accounts now held
in the name of the other or in the name of the corporation
and confirms those accounts and any funds in them to be the
sole and separate property of whoever is the titled owner of
the accounts on this date.
18. There is currently pending before this Court an order
of alimony pendente lite which obligates husband to make
cash payments of alimony pendente lite to wife. The
parties agree that, until the settlement provided for herein
and until payment is made to wife and the deeds are
delivered at that settlement, husband shall continue to make
payment of that alimony pendente lite to wife through the
Domestic Relations Office. Immediately after settlement,
both parties, by their attorneys, will advise the Domestic
Relations Office to terminate the order entered in the
Domestic Relations Office to docket No. DR 27919 PACES 10
No. 814100330, No. 98 - 1248. Wife and husband waive all,
further claims to spousal support, alimony, or alimony
pendente lite whether they have been raised in this case to
date or not, Both parties further waive any claim to
counsel fees, costs, expenses, experts witness fees, or the
like whether they have been raised in this action up until
now or not.
19. The parties acknowledge that they have exchanged
extensive information during the pendency of this action,
that each of them have filed pretrial statements and engaged
in formal and informal discovery, Each of the parties
acknowledge they are aware of their right to have the Court
decide all of the economic issues raised in their case and
have decided, voluntarIly, to waive that right and to accept
the terms and provisions of this agreement as satisfying and
resolving all of the economic issues between them and any
economic claim the other has as set forth herein, with the
reservation only of claims relating to child support and
child custody.
20, Except as herein otherwise provided, each party may
dispose of his or her property in any way and each party
hereey waives and relinguishes any and all rights he or she
may now have or hereafter acquire under the present or
future laws of any jurisdiction to share in the property or
the estate of the other as a result of the marital
relationship including without limitation, statutory
allowance, wIdow's allowance, right of intestacy, right to
take agaInst the will of c.he other, and right to act as
administrator or executor In the other's estate, Each will
at the request of the other execute, acknOWledge, and
deliver any and all instruments which may be necessary or
advisable to carry into effect this ffiutual waiver and
relinquIshment of all such interest, rights, and claims.
MR. ANDES: Mr, Harner, you were here today;
you heard what I just dictated; is that correct?
MR. HARNER: Yes.
MR, ANDES: Do you have any questions about
it?
MR. HARNER: No.
MR. ANDES: Are you satisfied that you
understand it?
MR, HARNER: Yes.
MR, HARNER: Yes.
MR. ANDES: Knowing all of that, is the
agreement that I dictated and that she is typing up,
satisfactory to you?
MR, HARNER: Yes.
MR, ANDES: Do you understand that whether we
ever sign a p.i.ece of paper or not, we are nlaking a
"
representation to the Court that this is the agreement we
have made and we are willing to be bound by it whether it is
in, writing and signed by you or not?
MR. HARNER: Yes,
MS, DALEY: Martha, you just heard Mr. Andes
go through the details of the settlement; you were present
to hear him dictate those, were you not?
MS. HARNER: Yes.
MS. DALEY: And is that identical to the
information that you and I have discussed since ,we reached
our settlement last evening at 10:00 p.m,?
MS. HARNER: Yes.
MS. DALEY: You and I have had a chance to
review all of the financial documents, review tax returns,
review reports of experts and the like, do you have any
qu~stions about any of the assets that remain unanswered at
thi,s point?
MS. HARNER: No,
MS. DALEY: Knowing that, you will be bound
by the provisions of this agreement forever, There will be
no changing your mind about this, that this is a full and
final settlement of all claims between the two of you. Are
you asking the Court to adopt this as its final order?
MS, HARNER: Yes.
, .
MARTHA S. HIIRNER, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. No. 9B-1248 CIVIL 1'ERM
ROBERT H. HARNER,
Defendant IN DIVORCE
RE: Pre-Hearing Conference Memorandum
DATE: Monday, March B, 1999
Present for the Plaintiff, Martha S. Harner is
attorney Kathleen Carey Daley, and present for the Defenda~t,
Robert H. Harner is attorney Samuel L. Andes,
A divorce complaint was filed on March 9, 1998,
raising grounds for divorce of irretrievable breakdown of the
marriage. Counsel have indicuted that the parties will sign and
file affidavits of consent and waiveru of notice of intention to
request entry of divorce decree prior to the hearing to be
scheduled so the divoroe can be concluded under section 3301(c)
of the Domestic Relations Code.
The complaint also raised the economic claims of
equitable dist~ibution, alimony, and alimony pendente lite.
with respect to the alimony claim, counsel for wife has
indicated she will file a praecipe prior to the hearing
withdrawing wife's alimony claim. The complaint did not raise
the economic claim of counsel fees and costs, and attorney Daley
has advised that she will be filing a petition raising that
issue.
The parties were married on September 11, 1976,
and separated March 4, 1998. There were three children born of
the marriage, and those children are currently in the custody of
husband. The children's names and dates of birth are as
follows:
Joseph P., March 23, 1981;
Elizabeth A., May 10, 1983;
Katherine L., May 10, 1983.
Judge Guido had a hearing on wife's claim for
spousal support and alimony pendente lite and child support.
After a hearing, Judge Guido entered an order dated Deoember 16,
1998, and after considering deductions that were due husband
from gross income and wife's child support obligation, the judge
determined that husband shall pay wife IIPL in the amount of
$1,167.00 per mont,h, commencing September 19, 1998.
Wife is 44 years of age and resides at 237 Graham
street, Carlisle, pennsylvania, where she lives alone. She has
a Baohelor's degree from Bucknell University and a teaohing
certificate. currently, she is a student at the Dickinson
School of Law in the first year. Judge Guido assessed a monthly
net income for wife of $1,000.00. Wife has not raised any
health issues. She is currently covered under husband's medical
insurance plan through the business of husband.
Husband is 45 years of age and resides at 852
wynnewood Road, camp Hill, Pennsylvania, where he lives with the
three children. He is a graduate of Mortuary Science School and
has two years of college at Gettysburg college. He is the owner
of Myers-Harner Funeral Home, Inc. The stock in that funeral
home is issued in husband's name only, although there is no
dispute that the stock is a marital asset. The real estate that
is used in the funeral home business is owned jointly by the
parties. Judge Guido determined, after review of the income of
husband and the credits/debits that he is entitled to, based on
the statements set out in Judge Guldo's opinion on page seven,
that the annual net disposable income of husband is $87,535.00.
That computes to $7,295.00 net per month for the year 1998.
Wife's attorney, however, disputes the computation and is going
to try to show that the net income is higher than Judge Guido
found using the computations and figures in his opinion.
Husband has not raised any health issues.
The real estate at wynnewood Road, camp Hill,
Pennsylvania, has been appraised by husband in 1998, and the
expart that husband had, Patrick A. Mccarthy, stated the market
value at $246,000.00. Wife recently had the property appraised
by ~d Kopenhaver, and he determined that the market value is
$237,000.00. The home is not subject to a mortgage, and counsel
indicated they are going to attempt to stipulate to a value
before the hearing,
The real estate where 'the funeral home business
is located at 1903 Market street, Camp Hill, was appraised by
Thomas F. Q'Byrne in 1992 at $605,000.00. Mr. Andes has
estimated that the increased value from 1992 to present would
bring the value to $695,000.00. Attorney Daley is probably
going to have the property appraised or the parties may be able
to stipulate to the value. The property is subject to a
mortgage of around $425,000.00.
with respect to the value of the funeral
business, exclusive of the real estate, wife has suggested the
value at. $350,000,00, using an expert by the name of Bruce
Brown, CPA, Husband has suggested a value of the business at
$288,000.00, using the services of the firm of Mathieson,
Aitken, Jemison, LLP.
-
..-'-'
Wife has a 1997 Chrysler Sebring which counsel
are going to attempt to stipulate as to value, Husband uses a
1994 Jeep Grand Cherokee, which is owned by the corporation, and
according to husband, he claims it is included in the value of
the business. On the other hand, wife's attorney claims the
Jeep is being used almost exclusively by the son of the parties
and should be included as a marital asset separately from the
business even though it is titled in the corporation.
Wife has an IRA which has been valued on the
pretrial statement at $23,000.00, and husband has an IRA valued
at $28,000.00. counsel are going to provide statements. Also,
oounsel are going to provide statements for the various other
investment acoounts and savings and checking accounts as
follows:
Robert James/passport Investments account;
Merrill Lynch investment account;
American Funds;
Lutheran Brotherhood Life Insuranoe universal
policy;
Pennsylvania State Bank;
Harris savings Bank.
Counsel have indicated that wife, around the time
of separation, withdrew approximately $29,000.00 from various
joint accounts, and counsel are going to try to determine how
much, if any, credit husband should be allowed on the use by
wife of marital assets. Wife is claiming that some of those
funds were used to maintain herself and the children since
husband was not paying any support for a period of time.
Mr. Andes has indicated that the jewelry and furs
of wife have a value of around $37,000.00; wife claims that the
furs and jewelry have a value of $1.5,000.00. Attorney Andes
indicated that he may have the furs and jewelry appraised.
With respect to the household tangible personal
property, counsel have indicated the parties have divided the
property to their mutual satisfaction. Counsel are going to
provide at the hearing a value for property received by each of
the parties so that value can be used in the equitable
distribution computation.
Attorney Daley is claiming that husband's
membership at the West Shore country Club has a value of
$10,000.00. Mr. Andes claims that membership in the country
club is not an asset and that the monies that were paid were not
SAN pm, LANDES
A'rl'()RNJ~Y AT I.AW
nun NOU'J'II TWI.;r,l"rll WI'HlH;'!'
",0, floX HI/I
I.I~MOYNH, PJ~NNSYJ.vANIA n04a
1'F.I,IWllONI~
(117) rOI'l'HllIl
12 January 2000
FAX
(111) 1(1/-'_&:1:\'
E. Robert Elicker, II, Master
Office 01 the Divorce Master
9 North Hanover Street
Carlisle, PA 17013
RE: Hamar vs, Harnsr
Dear Mr. Elicker:
I write in response to Kathleen Daley's diahbe to you in the lorm 01 her letter 0110
January 2000. Frankly, the statements she made in her letter should not be directed to
you, who will have to hear the evidence in the case and recommend lindings ollact to the
Court. I do not believe it is proper lor attorneys to litigate their cases through accusations
they make in letters. The proper way lor these matters to be determined by you is to hear
the evidence at the hearing. However, I leell must respond to some 01 her accusations
so that you will not prejudge the case unreasonably.
First, my client submitted an expert's report in this case approximately two years
ago. Bruce Brown prepared a report in which he alludes to some unreported income that
he claims the Harners took lor the last year belore they separated. Using the income
which Mr. Brown claims they received but did not report, he came up with a much greater
value for the business than my client's expert calculated. During discussions with my
client's expert, Mr. Brown made relerence to the inaccurate income reporting and that
caused my client's expert, who was also responsible to prepare the tax return lor the year
in question, to step out oJ the case. My client has now secured another expert witness
who needs more clarilication about Mr. Brown's claims that there was unreported income
so that he can do his report, Bruce Brown's report makes mention 01, and in lact relies
Upon, these items 01 unreported income, but does not describe them or set out enough
inlormation abollt them that anyone who reads this report can know what he is talking
about. Frankly, 1 believe Mr, Brown's report is incomplete lor that reason alono.
My client and I are trying to get this case resolved . To do that, the two experts
have to work with the same inlormation in an eflort to como up with valuos 01 the
business which they can justily and which, hopelully, will lead the ~?'ties to an
agreement, I have asked Kathleen Daley to provide a clarilication 01 Mr, Bro,vn's claims
on this point, without SUccess. It is she who is delaying the completion 01 the expert
reports.
I
i
I
,
,
MARTHA S. HARNER,
plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 9 B -, 1 2 4 B
vs.
CIVIL ACTION - LAW
ROBERT H. HARNER,
Defendant
IN DIVORCE
ORDER AND NOTICE SETTING HEARING
TO: Martha S. Harner , plaintiff
Kathleen Carey Daley . counsel for plaintiff
Robert H. Harner . Defendant
Samuel L. Andes . Counsel for Defendant
You are directed to appear for a hearing to take
testimony on the outstanding issues in the above captioned
divorce proceedings at the Office of the Divorce Master, 9 North
Hal10ver street. Carlisle, pennsy lvania on the ~th ,____ day
of October ,1999. at 9:00 a.m., at which
place and time you will be given the opportunity to present
witnesses and exhibits in support of your case.
pres iden t ,Judge
Date of Order and
Notice: 3/8/99
By:
Divorce Master
IF YOU DO NOT HAVE A LII\~YER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CIIN
GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CAIlLISLE, PA 1'1013
TELEPHONE ('1]'1) 249-3166
....
IN THE COURT OF coMMON PLE~S of
CUMBERLf\Nt' CO\lNT'i I PENNS'iLVf\Nlf\
NO . 9 B-1 2 4 B
M~RTH~ S. H~RNER,
Plaint iff
CIV1L T\CTION
LAW
VS.
IN DIVORCE
ROBERT H. HARNER,
Defendant
RESCHEDULED HE~RING
ORDER "NO NOTICE SETTING HEARING
- -- -.- -=----
TO: Murtha S' Harner , plaintiff
Kathleen Carey Daley , counsel for Plaintiff
Robert H. Harner , Defendant
Sal1\Uel L. I\nde9 counsel for Defendant
,
"u .,. 'i"O'" '0 'Pp'" '0' · h..,i09 '0 ,.k'
,.,'imoo' 00 ,h' oot.,ao'i09 i"u" in 'h' abo" c.p'ioO"
,ivo'O' p,oo..'iO" .t ,b. o"io' 0' ,h' oi'o'o' Ma"", 'Mo,'b
Hac"" ",.." CO< ".1', ,,,...,1 vaoia 00 'h' 2Od' ", dO'
~ ---~
of Ma, _' ,oDD. ., _ ,,00 a.m.. ., whioh
pl00' ", time ," will b. ,i"O the opp"tuO'" to p,...ot
witnesses and exhibits in support of your case.
li~
rge E,1HOf~r, president Judge
_v_
Date of order and
Notice: _10/8/99
BY:
Divorce Master
IF 'OU 00 NOT H'Vi , L"'" 0' C,NNOT ",0'0 ONE. GO TO 0'
TELEPHONE THE OF,ICE SET FO,TH .'LO' TO FIND OUT .HE,E ,OU C,'
GET LEGf\L HELP.
CUMBf~I\LT\N\) coUNT'i B~H ~SSOCl~T IoN
2 \,I\.W,R'I"{ ~VENUE
C~RLlSLE, P~ \1013
'I'E\,EI'\\ONE (1\1) 249-3166
'*
OFFICE OF DIVORCE MASTER
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
9 North Hanover Slreel
Carlisle, PA 170t3
(7t 7) 240-6535
E. Robert Elicker, "
Divorce Master
Trlcl .10 Colyer
Ollleo Manager/Roportor
We.. Shore
697-0371 Ex!. 6535
i 1
TO:
Kathleen Carey Dale, Attorney at Law
Samuel L, Andes, Esquire
DATE:
Thursday, January 27. 2000
RE:
Martha S, Harner vs. I~obert H. Harner
No, 98 - 1248 Civil
In Divurce
This is to confirm the conference with counsel and the Master on
Thursday, March 9, 2000, at 1:30 p.m,
Tra,ciJ. Colyer
Court Reporter
i
Samuel 1. Andes, Esquire
December 30, 1999
Page Two
Depreciation and Amortization Expenses
In developing the adjusted eamingn, BSSF added back reported amounts of depreciation
and amortization expenses deducted in the historical financial statements, The method used by
BSSF to arrive at an estimate of fair market value for the funeral home includes the application
of a capitalization rate to the after-tax normalized earnings, (The development of this
capitalization rate is presented in exhibit 2 of the report und discussed on Puges 8 and 9 of the
report), The capitalization rate applied to the subject company was developed with reference to
rates of return for debt and equity securities traded on public exchanges. These rates of return
consider corporate net income after deductions for depreciation and amortization, To properly
match the capitalization rate cakulated by BSSF for the Corporation, deductions for depreciation
and amortization should be considered in developing the earnings base for Myers-Harner Funeral
Home, Inc,
The reversal of the adjustments made to the historical earnings for depreciation and
amortization by BSSF decreases the weighted average eamings by $15,900.
Personal Expenses
The BSSF valuation report includes the addition of cettain expenditures identified as
"personal expenses" to the Corporation's reported income fi'om 1993 through 1997, The report
does not include any discussion or analysis as to how these annual amounts were derived, Our
review of these adjustments is nol yet complete, For the purpose of this letter, we have estimated
that one-half of these .additions to the reported income are valid business expenses.
The acknowledgement of one-half of the personal expenses identified in the BSSF report as
business expenses decreases the weighted average earnings by $ I 8,000.
We have summarized below the effect upon the weighted average earnings presented in the
BSSF valuation for the above observations regarding certain normalization adjustments
presented in that report. (We have attached to this letter a worksheet that recalculates the
information presented in Exhibit 3 of the BSSF report based upon the revisions identified in this
letter),
Weighted Average Pre- Tax Income Per BSSF Valuation Report
Less: Charitable Contribution/Advertising
Less: Depreciation and Amortization Expenses
Less: One-half of "Personal Expenses"
Adjusted Weighted Avel'age Pre-Tax Income
$117,800
(1,300)
(15,900)
(18,000)
$ ..8~,60Q
It is our understanding that Mr. Hamer is the only full-time employee of the Corporation,
There is only one other employee that works on a part-time basis. It is evident that the financial
results of operations are largely due to the efforts of Mr. Harner personally as a single
owner/operator, To estimate the business value of Mr, Harner's efforts, we benclunarked the
Corporation's results of operations with an industry survey.
\
)
Samuel 1.. Andes, Esquire
December 30, 1999
Page Three
Annl/al Statement Stl/dies is an annual publication by Robert Morris Associates, which
presents selected financial infonnalion by industry from financial statements submitted by
member banks. The reported prof1t before taxes for companies operating funeral services and
crematories with sales of zero to $1 million is 6,1 percent. This percentage is 14.4 for the subject
company based upon the weighted average amounts for sales ($574,300) and pre-tax earnings
($82,600),
We have considered the Corporation's profitability beyond the industry average as being
attributable to his personal efforts in the business. Consequently, any goodwill associated with
these excess eamings would be ,personal and not includible in the marital estate,
The following lIualysis presents the reduction of the pre-tux adjusted earnings by those
~amings attributable to Mr. Hamer's personal efforts along with a revised tax provision,
Adjusted Weighted Average Pre-Tax Income
Less: Excess Earnings from Mr. Hamer's Efforts ($574.300 x 8.3%)
Pre- Tux Income Net of Excess Earnings
Less: State Income Tuxes
Less: Federal Income Taxes
After-Tax Income Net of Excess Earnings
$82,600
(47,667)
34,933
(3,493)
.H,716)
$26.724
The capitalization rate presented in the BSSF report was developed using a "build-up"
method. Under this method, the subject company's cost of capital is developed by the addition
of various risk premia to a risk-free rate of return, usually US Treasury Securities, lbeir
application of this method for the subject company resulted in a net cash flow discount rate of
20.0 percent. With reference to their risk-free rate of 6,0 percent, they factored an overall equity
risk premium of 14 percent to be appropriate,
i
I
I
( ,
,
,
,
We referenced numerous authoritative references regarding the application of the build-up
method. One such reference is Cost of Capital: Estimation and Application by Shannon p, Pratt,
In Chapter 8 of this book, he presents the build-up model for estimating the cost of capital. With
respect to the equity risk premium for size, he references a table presented in Ibbotson
Associates' Stock, Bonds, Bil/s, and Inflation (SBBI) which identifies risk premiums for various
size decile portfolios of the New York Stock Exchange (}lYSE). t In developing the equity risk
premium for a closely held company, he cites the infonnation in Ibbotson Associates' SBB/1997
Yearbook that indicates the general equity risk premium for the smallest 10 percent NYSE stocks
is 16.75 percent in excess of the riskless rate.2 ,
"
"
: Prall, Shannon p,. COlt ofCapilal: EstLrnation and Appllcatlonl, 1998 John Wiley & Sonl, Inc.. p, 67,
Ibid., p, 67 and 69,
Samuel L. Andes, Esquire
December 30, 1999
Page Four
The SBBl 1998 Yearbook (which includes infomlatlon as of December 31, 1997, the
valuation date used by BSSF) indicates that the actual return in excess of the riskless rate is
16,63 percent for the ~mallest 10 percent of companies listed on the NYSE. J Adding this risk
premium to the riskless rate as of December 31, 1997 results in net cash flow discount rate of
22.63 percent. The average market capitalization of companies included in this size decile is
about $68 million4 Since Myers-Harner Funeral Home, Inc, is clearly much smaller than the
average company referenced for this risk adjustment; we have minimally added an additional 3
percent to acknowledge this observation, This results in a net cash flow discount rate for the
subject company of25,63 percent.
Accepting the cash flow to earnings adjustment of zero and the growth rate of 2 percent
used by 8SSF, the revised capitalization rate would be 23.2 percent. This equates to a new "base
capitalization factor" as applied by BSSF of 4.31.
We have attached a worksheet with this letter that presents the capitalization rate calculated
in the BSSF report along with the revised capitalization rate described in the preceding
paragraphs,
We have presented below the reapplication of the capitalized earnings approach used by
BSSF with the revised earnings and capitalization rate presented in this letter,
After-tax Income Net of Excess Earnings $26,700
Multiply by Capitalization Factor _4.31
Total 115,077
Less: Marketability Discount - 25 Percent (28,769)
Add: Non-Operating Assets 90,000
Indicated Value $J76.3Q~
We have applied the marketability discount to the same base and at the same rate as was
done in the BSSF report. We have also treated the non-operating assets consistently with the
BSSF report,
me.
Should you have any questions regarding this infonnation, please do not hesitate to contact
Sincerely,
'-...,,-
, Slock.r, Bonds, Bills, and /nflallon /998 Yearbook, Ibbolson Auoclates, p, 142.
4 Ibid" P 140 (Recenl decile market caphallllltion ($ 12.720,499.000) divided by recent number of companies (186).
MYERS.HARNER FUNERAL. HeME, INe,
EXHIBIT 2
CAPITALIZED EARNINGS METHOD. CAPITALIZATION FACTOR
BSSF
Report Revised
Rlsk.free rate of return 6.0 6,0
Common stock equity risk premium 7.6
Small stock risk premium 4.7
Subtotal- common and small stock premiums 12.5 16.6
Corporation specific premium 1.5 3.0
Nat cash flow discount rale 20.0 25.6
Cash flow to eamings conversion 0.0 0.0
---
Net earnings discount rale 20,0 25.6
Sustainable growth rate 2.0 2.0
Base capitalization rate for next year 18.0 23,6
Divide by 1 + growth rate .:. 1.02 1.02
Ba~e capitalization rate for currant year 17.6% 23.2%
Base capitalization factor (1 divided by base capitalization rate) 5,68 4.31
,
In the Conrt 01' Common Pleas 01' CIIMOERLAN(> County, Pennsylvania
l>OMESTIC RI~LA'I'(ONS SEC'I'lON
MARTH.I\ S. HARNER ) OoukUI NUll1h~r 98-1249 CV
Plaintiff )
VS. ) PACSES Case Numlwr 814100330
ROBERT H. HARNER )
Oet~ndanl ) Olher State ION umher
mIDFJtOF CQllIIT: RESCHEDULE A CONFERENCE
You.
MARTHA B. HARNER
plaintiff/defendant of
852 WYNNEWOOD RD, ClIMP IIIl,L, PA. 17011-1645-52
are ordered to appear at CUMBERLAND co DRB
13 NORTH ~lOVER STREET, CARLISLE, PA. 17013
before a conference officer of the Domestic Relations Section, onlhe
20TH DAY OF OCTOBER, 199B
at 10: 30AM for a conference, after which the
conference officer may recommend that an order be entered, This date replaces the prior
conference date of OcrOBER 20, 199B
You are further required to bring to the conference:
I. a lrue uopy of your most recent Federal h,,'ome Tax R('turn, iocluding W-2s, liS tiled,
2, your pay sluhs hlllhe preceding six (6) months,
3, Ihe Incume aud Expense Stlltcmenllltlached to lhls OI'der liS required hy Rule t910.11 (c),
4, verificatloo of child care expenses, and
S, proof of medklll coverage whidt you lIIay have, or lIIay have uVllilahte 10 you
6. Information reluting 10 profcssionulllcenses
7. other;
PLEASE NOTE THE CHANGE IN CONFERENCE TIMES,
CC: Kathle,m Carey Daley, Esq.
D..27919
Serviue Type M
Form CM.513
WOI'kerlD 21205
~
In the Court 01' Common Plell.~ of CIIMIlERLANU County, Pennsylvania
DOMESTIC RELATIONS SECTION
MARTHA S. HARNER ) Do~k('1 Numher 98-1248 CV
Plaintiff )
VS. ) PACSES Case Numher 814100330
ROBERT H. HARNER )
Defendant ) Olher Slale ID Numher
ORDER..QF COURT - RESCHF.oULE t\..C.ONFERENCE
You.
ROBERT H. HARNER
plaintiff/defendant of
1903 MARKET ST, CAMP HILL, PA, 17011-4702-03
are ordered to appear at CUMBERLAND CO ORS
13 NORTH HANOVER STREET, CARLISLE, PA, 17013
before a conference officer of the Domestic Relations Section, on the
20TH DAY OF OCTOBER, 1998
at 10: 30AM for a conference, after which the
conference officer may recommend that an order be entered, This date replaces the prior
conference date of OCTOBER 20, 1998
You are further required to bring to the conference:
I. a Inle ('(lpy of your most re~ent Fedemllncome Tax RelllfJI. Including W-2s, as Iiled,
2. your pay stuhs for lhe preceding six (6) months,
3. the Income and Expense Statement attached to this order as requhed by Rule 1910.11 (c),
4, verificatlnn of child care ("xpenses, and
5. proof of medical ~overage which you may have, or may have availahle to you
6, Intimuatlon relalillg 10 professiollllllicenses
7. other:
PLEASE NOTE THE CHANGE IN CONFERENCE TIME,
cc: Samuel L, Andes, Esq,
0-27919
~ervice Type M
FormCM-513
Worker ID 21205
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1'F.1.I"1'1l0N'J~
(117) 101'rI.rI01
3 November 1998
""Ii:.
(711j'161"43D
E. Robert Elicker, II
Office of the Divorce Master
9 North Hanover Street
Carlisle, PA 17013
RE: Martha S. Harner vs. Robert H. Harner
No. 98-1248 Civil Term
Dear Mr. Elicker:
Enclosed is the Defendant's Pre- Trial Statement which I file In the
above matter.
One fact of which you should be aware, that Is not set out In the Pre-
Trial Statement or the other documents which have been flied In the divorce
action as yet, Is that my client currently has custody of all three of the
parties' minor children.
Please schedule a Pre-Hearing Conference when you can.
Sincerely,
I L. Andes
amr
Enclosure
cc: Kathleen Carey Daley, Esquire (w/enclosure)
Robert H. Harner (w/enclosure)
II' 1l",(T?J
i(t 1/( ,Ii
MARTHA S, HARNER,
Plaintiff
vs.
)
)
)
)
)
)
)
)
)
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
ROBERT H. HARNER,
Defendant
NO, CIVIL TERM
IN DIVORCE
DEFENDANT'S PRE-TR~AL STAllME.NI
Defendant, by his attorney, Samuel L. Andes, files this Pre-Trial Statement In
accordance with Pa. R.C.P. 1920.33(b):
1. ASSETS, Attached hereto and marked as Exhibit A is a list of the marital
assets of the parties. Attached hereto and marked as Exhibit B Is a list of the non-
marital assets of the parties.
2. EXPERT WITNESSES. At the present time. Defendant Intends to call the
following expert witnesses, If the parties are not able to agree upon the value of
various marital assets:
A, A representative of Mathieson, Aitken, Jemison, LLP, an
accounting firm, who will offer testimony about the value of Myers-
Harner Funeral Home, Inc,
B. A real estate appraiser who will offer testimony about the value
of the marital residence and the commercial building In Camp Hili owned
by the parties,
C. An appraiser of household furnishings, jewelry, furs, and other
tangible property,
3. FACT WIINESSES. At the present time, Defendant Intends to call only
himself as a fact witness.
4. EXHIBITS, Defendant Intends to offer the following Exhibits Into evidence:
A. Tax returns for the parties for three or more years prior to the date of
the hearing.
B. Tax returns for Myers-Harner Funeral Home, Inc. for three or
more years prior to the date of the hearing,
C. Financial statements for Myers-Harner Funeral Home for three
or more years prior to the date of the hearing.
D. Various documents relating to the purchase and acquisition of
Myers-Harner Funeral Home, Inc. by Defendant.
E, Statements showing the balance at the date of separation and
at the date of hearing In various Investments held by the parties and
other documents confirming any deposits into or withdrawals from those
accounts which are related to the claims In this action.
F. Deeds, receipts, and other documents to verify the costs of
various items owned by the parties.
G. Real estate appraisals, business appraisals, personal property
appraisals, and other documents which may be entered Into evidence In
lieu of having expert witnesses offer live testimony.
I 5. INCOME STATEMENT. Attached hereto and marked as Exhibit C Is a copy
of Defendant's current Income and expense statement.
6. EXPEN5.E...sIAIJ:MENT, Attached hereto and marked as Exhibit C Is a
copy of Defendant's current Income and expense statement,
7, PENSION INFORMATION, All the retirements benefits owned by the
parties are Individual retirement accounts and other defined-contribution assets
which can be valued by review of statements and other financial records. Defendant
does not anticipate expert testimony will be necessary to value those retirement
assets.
8. COUNSEL FEES, Defendant hC1S not, at least as yet, raised a claim for
counsel fees In the case. If the Plaintiff pursues any claim for counsel fees, however,
Defendant reserves the right to submit his own request for payment of his counsel
fees or to offer evidence of the counsel fees he has incurred In the litigation of this
case as a result of the various actions and claims by Plaintiff.
9, ~~~. Defendant anticipates that the parties will be able
to agree upon the value and division of their furnishings, jewelry, furs, and motor
vehicles. In the event they are not, he proposes that ?I! those Items be appraised
and that each of the parties be charged with the value of the items In their
possession as that value Is established by the appraisal.
10. MARlIAL DEBTS. Attached hereto and marked as Exhibit D is a list of
the liabilities of the parties at or near the date of separation.
11. e.RQP...QSED RESOLUTION 01: ECONOMIt.jSSIJES. Defendant
proposes that the marital residence, which he occupies with the parties' three minor
children, be awarded to him, that Myers-Harner Funeral Home, Inc. and the real
Ilestate which the parties own at which the corporation operates Its business be
EXHIBIT ~MARITAL-PBOP-E.RI.Y
DATE OF MARITAL AMOUNT OF
ASSET VALUE VALUATION PORTION LIENS LIEN
-- _.
Residence elt 852 $246,000,00 9/1998 100% None as of
Wynnewood Road, (appraisal October 1998
Camp Hill. PA attached)
- - -
Commercial Building at $695,000,00 1 0/1 998 100% Mortgage to Balance, as of
1903 Market Street, (appraisal Pennsylvania October 1998,
Camp Hili, PA from 1992 State Bank approximately
attached) $420,000,00
-- --
Husband's stock in $288,400,00 6/1998 100% No liens except
Myers-Harner Funeral (appraisal of as set out in
Home, Inc, Mathison, appraisal and
Aitken. documents
Jemison, LLP attached
attached)
Husband's IRA with $27,958,00 12/31/1997 100% No lions known
Merrill Lynch
Wife's IRA with Merrill $23,240.00 2/27/1998 100% No lions known
Lynch
Joint investment account $23,906,00 3/1998 100% No liens known
with Merrill Lynch
--
Joint stock account with $46,115.82 3/1998 100% No liens known
Passport Investments
-
Household furnishings $30,000.00 3/1998 100% No liens known
--
Wife's Jewelry !inciuding $30,000.00 3/1998 100% No liens known
diamond earrings,
diamond tennis bracelet,
ring with five diamonds,
and numerous other fine
jewelry items)
. -
Wife's furs $7,000.00 3/199B 100% No liens known
1997 Chrysler Sebring $21,500.00 9/1998 100% No liens known
Automobile
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MARTHA S, HARNER, ) IN THE COURT OF COMMON
Plaintiff ) PLEAS OF CUMBERLAND COUNTY,
) PENNSYLVANIA
)
vs. ) CIVIL ACTION - LAW
)
) NO. CIVIL TERM
ROBERT H, HARNER, )
Defendant ) IN DIVORCE
PEFENDANTrS INCOME AND..E.Kf.E.NS.lLS_TAT.fMENI
Defendant, Robert H. Harner, hereby makes the following statement of his
Income and expenses as of October 1998:
I. INCO~TATEMENT
Defendant Is employed by Myers-Harner Funeral Home In Camp HIli,
Pennsylvania, which he owns. Following the separation, when Mrs, Harner ceased
ecelvlng a salary and he had to pay all the additional expenses to support the
amlly, he Increased his salary to $900,00 per week, From that salary he has the
ollowlng deductions and net Income:
Gross Salary Per Week
$900.00
Less:
Federal Income tax
Social Security tax
Medicare Tax
PA Income tax
Local income tax
$141.13
$58,90
$13,87
$26.60
$9.50
Net Per Week
$250.00
$650,00
hat averages to be $2,816,67 each month net of taxes.
ASSETS OF PARTIES
MARTHA S, HARNER, PLAINTIFF, MARKS ON THE LIST BELOW THOSE ITEMS
APPLICABLE TO THE CASE AT BAR AND I'rEMlZES THE ASSETS ON THE FOLLOWING
PAGES,
(X) 1. Real Property
(X) 2, Motor Vehicles
(X) l Stocks, bonds, seculities and options
( ) 4. Certificates of Deposit
(X) S, Checking accounts, cash
(X) 6, Savings accounts, money market and savings certificates
( ) 7, Contents of safe deposit box( s)
( ) g Tmsts
(X) 9, Life insurance policies (indicate face value, cash surrender value and ourrent
beneficiaries)
( ) 10, Annuities
( ) 11. Gifts
( ) 12. Inhelitanoes
( ) 13, Patents, copyrights, inventions, royalties
() 14, Personal property outside the home
(X) IS, Businesses (list all owners, including percentage of ownership, and officer/director
positions held by a party with company)
( ) 16, Employment tennination benefits - severance pay, worker's compensation claim/award
( ) 17,
() 18
(X) 19,
() 20,
( ) 21.
( ) 22.
( ) 23,
(X) 24.
(X) 25,
()
26,
Profit sharing plans
Pension plans (indicate employee contribution and date plan vests)
Retirement plans, Individual Retirement Accounts
Disability payments
Litigation claims (matured and unmaturcd)
MilitarylVA benefits
Education benefits
Debts due, including loans, mortgages held
Household fillllishings and personalty (include as a total category and attach itemized
list if distribution of such assets is in dispute)
Other
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Law School Tuition and Fees
$1,250,00
1\1
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I'
EDUCATION:
Law School Books and Supplies
$ 150.00
PERSONAL:
Jr.
"
~
,
Clothing
$250.00
Food
$540,00
HairdresserlNails
$115,00
MISCELLANEOUS:
Papers/BookslMagazines
$ 20,00
Entertainment
$150,00
Pay T,V,
$ 29.00
Vacation
$300,00
Gifts
$200,00
Legal Fees
$500,00
Charitable Contributions
$ 50,00
Pet Care Expenses
(Grooming/F ood/Kennel/ShotslLicense, etc,)
$ 50,00
TOTAL EXPENSES
$5,982.00
In the Court of Common Pleas of CUMBERLAND County, Pennsylvunla
DOMESTIC R.:LATIONS SECTION
MARTHA S, HARNER ) Do.kcl Numhcr 90-1249 CV
PllIlullff )
VS, ) PACSES CII:'C Numhcr 914100330
ROBERT H, HARNER )
DcfcuulIUI ) Othcr StlllC ID Numher 0-27919
O.'d.ltl:
AND NOW to Wil, this
OCTOBER 20, 1999
it is hereby Ordered
that:
UPON CONSIDERATION OF THE RECOMMENDATION OF THE APL CONFERENCE OFFICER IT I~
HEREBY ORDERED AND DIRECTED THE REQUEST FOR ALIMONY PENDENTE LITE IS DENIED,
PURSUANT TO RULE 1910,16- (j) AND HUSBAND HAVING THE CARE AND CUSTODY OF THE
PARTIES' THREE CHILDREN,
BY THE COURT:
O~OI R.J. Shadday _
CC I Petit I,mer and R('SP"nd(\nt~ '
Scrvl.c Typc MQI..6-, I\0d e ~j , '.
'. \'1\1:\,,\1 \c\
r x\\, \ \) ((C),~'\'\3 N<.,~,i' '.
- \",\;),,:>\'1'''
.JUDGE
Form OE-OO I
Workcr tD 21005
.
MARTHA S. HARNER
Plaintiff
IN THE COURT OF' COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
ROBERT H. HARNER
Defendant
NO. 646 SUPPORT 1998
PACSES # 075100257
MARTHA S. HARNER
Plaintiff
IN THE COURT OF' COMMON PLEAS OF
CUMBERLAND COUNTYr PENNSYLVANIA
V.
ROBERT H. HARNER
Defendant
NO. 98-1248 CIVIL TERM
DIVORCE ACTION
1JL.BEl SUPPORT
BEFORE GUIDO. J.
AND NOW, this
ORDER OF COUR'l'
1'1"'- _ day ~~ER r
1998r it is hereby
ordered and directed as followsl
1) Plaintiff's claim for spousal support is DENIED.
2) Defendant is directed to pay Plaintiff child support in
the amount of $1,319 per month conunencing June 16, 1998 and
ending on September 1998.
3) Defendant is directed to pay Plaintiff APL of $lr167.00
per month conunencing September 19, 1998, said amount. being
the net amount due after deducting the child support
obligation of Plaintiff to Defendant in accordance with the
instructions of Pa. Rule of Civil Procedure 1910.16-S(j). He
is further directed to maintain health insurance coverage on
Plaintiff as part of the APL award.
NO. 98-00646 SUPPORT
98-1248 CIVIL
asking that the order entered in favor of Plaintiff be terminated
and that a new child support order be entered in his favor. At
about the same timer Plaintiff filed a petition for alimony
pendente lite.
A hearing was held before this Court on November 20, 1998.
We have been ask to decide the following issues:
Whether Wife is entitled to spousal support.
The net monthly earnings or earning capacity of the
parties.
The amountr if any, alimony pendente lite to which wife
is entitled.
The amount of child support each party owes the other.
The parties have agreed that the end date for any spousal
support and child support order in favor of Plaintiff shall be
September 19, 1998. They have also stipulated that the beginning
date of any support order against Plaintiff, as well as any
alimony pendente lite order in favor of Plaintiff, shall be on
September 19r 1998. Each party has filed a brief. This matter
is now ready for disposition.
FINDINGS OF FACT
I) Plaintiff Martha S. Harner is forty-four (44 ) year.s old.
2 ) Defendant Robert H. Harner is forty-five (45 ) years old.
3) The parties were married on September 11, 1976. They
separated on March 12r 1998.
4) The parties have three (3) childrenr Joseph, born 3-23-81,
Elizabeth, born 5-10-83, and Katherine born 5-10-83.
2
NO. 98-00646 SUPPORT
98-1248 CIVIL
5) The Defendant has been a funeral director since 1976.
6) Plaintiff graduated from Bucknell in 1976 with a degree in
English. She is certified to teach.
7) Prior to the birth of their first child, Plaintiff worked in
a real estate office and as an employment counselor. She earned
approximately $13,000 per year.
8) On April 1, 1990, Defendant purchased the funeral home in
which he had been employed, He is now the owner of Myers-Harner
Funeral Home, Inc.
9) After the birth of the parties' first child, they agreed
that plaintiff would be a "stay at home Mom;" During the years
from 1981 through the date of separation, Plaintiff's only
employment outside the home was as a substitute teacher and as
the part time bookkeeper for Myers-Harner Funeral Home, Inc.
10) lieI' income as a substitute teacher was nominal. Her income
at the Funeral Home was $21,000 per year.'
11) Husband left the marital home on March 12, 1998. He fired
Plaintiff from her bookkeeping position at the time of
separation.
12) When the parties separated, Joseph went to live with
Defendant and the twins remained with Plaintiff.
13) Defendant did not articulate any :t'easons for leaving the
'There is no question that Plaintiff earned the $21,000 per
year that she was paid. Aftl3r she left the funeral home,
Defendant was required to hire another part time employee to
perform her duties. He is paying that employee about the same
amount Plaintiff was earning.
3
NO. 98-00646 SUPPORT
98-1248 CIVIL
marital home other than that the parties had agreed to separate.'
14) Plaintiff readily admitted that she has been involved in two
extra marital sexual relationships since the time of separation.
The first began shortly after separation and continued into the
summer. The second began after the first ended and was still
ongoing at the time of the hearing in this matter.
15) In November of 1997, the parties agreed that Plaintiff would
quit her job at the funeral home so that she could enroll in law
school.
16) Plaintiff was accepted to Dickinson School of Law in March
of 1998. However, it is not clear whether the acceptance came
before or after the parties' separation on March 12.
17) She became enrolled as a full time student at the Law School
in September of 1998.
18) Plaintiff has not worked since the time of separation.
19) F.com the time of separation until September of 199B
Plaintiff had an earning capacity of $21,000 per year grossr or
$1406 per month net. Beginning in September, her ;)et earning
capacity was reduced to $1,000 per month.
20) Defendant is the owner of all the stock of Myers-Harner
Funeral Home, Inc.
21) The parties have accumulated a little over one million
'Defendant's Counsel did elicit testimony from Plaintiff to
the effect that she had a suspicious relationship with a
classmate of the parties' oldest son. However, the evidence
adduced was insufficient to establish grounds for divorce.
4
NO. 98-00646 SUPPORT 98-1248 CIVIL
($1,000,000) dollars of marital property, almost all of which is
in Defendant's possession.
22) Defendant has not been spending any of the interest
dividendsr or capital gains generated by the marital property.
He supports himself and the children entirely from the income
generated by the Myers-Harner Funeral llome, Inc.
23) Gross revenues at the funeral home are down approximately
15% in 1998 as compared to 1997.
24) Defendant has a net disposable income of $67,535.00 per
year. This amounts to $7295.00 per month.
25) Neither party has offered any reason to justify a deviation
from the support guidelines.
!)ISCUSSION
SPOUSAL SUPPORT
We will first address the issue of spousal support. There
is no question that the Defendant has failed to prove that he had
grounds for divorce at the time he left the marital residence.
Thereforsr as of the time of separation, the plaintiff was
entitled to spousal support. See Little v. Little, 47 Cumbo 131
(1998). Howeverr our inquiry does not end there.
The obligation to support a dependent spouse continues until
the conduct of the dependent spouse provides a ground for
divorce. Roach v. Roach, 337 Pa.Super. 440, 487 A.2d 27, (1985).
Plaintiff candidly admitted that she has been romantically and
sexually involved with other men almost continuously since the
5
NO. 9B-00646 SUPPORT 98-1248 CIVIL
parties' oeparation. This oase is identioal to the oase of
Williams v. williaml, 113 Dauph. 323 (1993) wherein Judge Turgeon
held that a spouse's post separation adultery preoluded her from
obtaining spousal support.' Since the first meretricious
relationship began well before the filing of her complaint for
support, and since adultery is a ground for divorce,' we must
conclude that Plaintiff is not entitled to spousal support.
EARNING CAPACITY OF THE PARTIES
Defendant has asked us to accept his w-2 figure of $49,400
as his gross income. plaintiff argues that his actual gross
income is no less than his 1997 gross income of $194,634 as
determined by her' expert. We find that neither position presents
a true picture of Defendant's disposable income.
We have determined Defendant's annual net disposable income
to be $87,535. We started with his 1997 net disposable income
as determined by Plaintiff's expert on Schedule 1 of plaintiff's
Exhibit 1.' We subtracted the interest, dividends and capital
gains which are accumulati,ng on the marital property and which
will be subject to equitable distribution at a later date. We
'Judge Turgeon did recognize that a defendant's prior
infidelity would preclude him from raising the subsequent
infidelity of his spouse as a defense to a claim for spousal
support. However, in the instant case, as in the Williams case,
there is no allegation as to the Defendant's lack of fidelity.
'23 Pa.C.S.A. S 3301 (a) (2).
'We found the testimony of Plaintiff's expert to be
generally more credible than that of Defendant's expert.
6
NO. 98-00646 SUPPORT
98-1246 CIVIL
further subtracted the health insurance payments which are a
legitimate fringe benefit paid by his employer. Finally, we
reduced the resulting figure by 15% to account for the business
downturn in 1998.' Our computations were as followsl
$147,998 DisDosable income after taxes
-6,671 Dividends and interest
-7,893 Capital gains
-24r90l Rental income'
-=.?-illl.......-._ Heal tlL ins\,1rall@'
$102,982 Adjusted disposable income
- 15.447 ,_--.!:Lgsiness reduction
$ 87,535 Net annual disposable income
In view of the abover we find that Defendant's net monthly income
is $7295.
We now move to the earning capacity of Plaintiff. According
to the testimony, she is certified to teach. She did, in fact,
work as a substitutt teacher from time to time during the
marriage. Plaintiff also had substantial experience as the
bookkeeper for the family funeral home for many years, Based
upon her education, training, and experiencer we conclude that at
the time of separation she was able to find another job making at
least $21,000 per year.
However, Plaintiff contends that she can no longer work full
time because she is at tending law school. Therefore, she argues,
'Defendant's expert testified that the business was off by
about 15% during the first six months. Additionally, Plaintiff
confirmed that the number of funerals Defendant projected doing
in 1998 was about 15% less than the number done in 1997.
The
new
'This income was used to pay Plaintiff's salary in 1997.
rent has been reduced and the salary is now being pald to
employee from the funeral home.
the
7
NO, 98-00646 SUPPORT
98-1248 CIVIL
her net earning capacity is only $1000 per month. This poses an
interesting question. May the Plaintiff's decision to pursue her
education in order to change careers operate to reduce her
earning capacity for the purpose of determining APL or child
support? In the instant case, we conclude that it may.
At the outset, we note that the case law is far from clear
on this point. There are those cases which hold that a spouse
may not voluntarily reduce his or her income and thereby secure a
reduction in child support. Weiser v. Weiser, 288 Pa. Super.
488, 362 A.2d 287 (1976). This ia ao even if the reduction in
income is the result of a decision to pursue an education which
would eventually result in greater earnings. Snively v. Snively,
206 Pa. Super 278, 212 A.2d 905 (1965). On the other hand, there
are those cases which have held that a support obligation may be
based upon the reduced earnings of a spouse who has elected to
pursue an education. See Giamber v. Giamberr 255 Pa. Super. 111r
386 A.2d 160 (1978) dealing with child support, as well as
Lazarou v. Lazarou, 180 Pa. Super. 342r 119 A.2d 605 (1956)
dealing with spousal support and McNultv v. McNulty, 500 A.2d
876, 347 Pa. Super. 363 (1985) dealing with APL.
The case before us is similar to Beegle v. Resler, 395_pa.
Super. 174, 576 A.2d 1100, (1990). In Beeqle the defendant lost
his full time job through no fault of his own. The Court held
that Defendant's decision to further his education was
appropriate. Thereforer he could not be penalized for only
8
NO. 98-00646 SUPPORT
98-1248 CIVIL
working on a part time basis. In the case at bar, Defendant
fired Plaintiff from a part time job where she was earning
$21,000 per year. We cannot fault her for electing to pursue an
education especially, where it had been previously agreed upon by
the parties. We are satisfied that she could not find another
part time posit.ion earning over $20 per hour while attending
school. We find that a job paying $10 to $12 per hour is more
realistic. Therefore, we hold that a net earning capacity of
$1000 per month is reasonable commencing in September of 1998.
ALIMONY PENDEN~E LITE
While conduct providing a ground for divorce precludes
spousal supportr it is not a bar to Plaintiff's claim for APL,
Q~ Keller v. Keller, 419 A.2d 49, 275 Pa.Super. 573, (1980) and
McKelvey v. McKelv~r 16 D&C 3d 611 (1980). Applying the Support
Guidelines Formula contained in Pa. Rule of Civil Procedure
1910.16-3 we compute the APL due Plaintiff to be $1,889 per
month. ·
In her brief, Plaintiff has requested that we make the API,
award retroactive to the filing of the Divorce Complaint. We are
unwilling to do this for several reasons. First and foremostr
the parties agreed to use September 19, 1998 as the commencement
.
$7r295
.:.1.000
$6,295
x .39,
$1,889
Defendant's Net Monthly Income
Plaintiff's Net Monthly Earning Capacity
APL Due Plaintiff
9
NO. 98~00646 SUPPORT
98-1248 CIVIL
date Clf any APL award. Secondly, although plaintiff raised a
claim for APL in her divorce complaint, she did not file a
petition to bring the matter to issue until September 15, 1998.
Pa. Rule of Civil Procedure 1920.31(a) provides that when a claim
fOI' APL is filed as a count in a divorce action, the award shall
be retroactive to the date of the written demand for a hearing.
I
I
In this case the petition fHed with the Domestic Relations
Office on September 15, 1998 constitutes the first such written
demand for a hearing. In view of the above, we find that
Plaintiff is entitled to an award of APL in the amount of $1889
per month commencing on September 19, 1998. We also direct t~at
Defendant maintain medical insurance on Plaintiff as part of this
award of APL.
CHXLD SUPPORT
Two of the parties' children lived with Plaintiff and one
lived with Defendant from the time of separation until September
1998. All three of the children have lived with Defendant since
I I
,
,
that time. Therefore, we must determine the amount of child
support Defendant owes to Plaintiff for the three month period
from June 16, 1998 through September 19, 1998. We must also
determine the amount of child support Plaintiff owes to Defendant
commencing September 19, 1998.
In determi.ning the support owed by Defendant to Plaintiff,
we have applied the formula set forth in Pa. Rule of Civil
Procedure 1910.16~3 in accordance with the directions set forth
r
f
10
NO. 98-00646 SUPPORT
98-1248 CIVIL
in Pa. Rule of civil Procedure 1910.16-5(h) dealing with divided
custody situations. We have determined that the net child
support obligation of Defendant to Plaintiff for the three month
between ,lune 16, 1998 and September 19r 1998 is $1319 per month.
In determining the child support owed by Plaintiff to
Defendant we have applied the formula set forth in Pa, civil
Procedure 1910.16-3 in accordance with the directions set forth
in Pa. Rule of Civil Procedure 1910.16-5(j) dealing with child
support obligations when the custodial parent owes APL to the
non-custodial parent. We have determined that the child support
obligation of plaintiff to Defendant is $722 per month commencing
September 19, 1998. Deducting that amount from the $1889 APL
obligation of Defendant to Plaintiffr we hold that Defendant
should pay Plaintiff net APL of $1167 per month effective
September 19, 1998.
CONCLUSION
Based upon the foregoing, we conclude that Plaintiff is not
entitled to spousal support. Furthermore, based upon Defendant's
net monthly income of $1295 and Plaintiffs net monthly earning
capacity of $1406 until September 1998 and $1000 per month
thereafter, we have determined the following;
Defendant is obligated to pay Plaintiff child
support of $1319 per month from June 16, 1998 to
September 19, 1998.
Defendant is obligated to pay Plaintiff APL of $1889
per month commencing on September 19, 1998,
plus maintain health insurance coverage on her.
11
MARTHA S. HARNER,
Plain tilT
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO, 98-1248 CIVIL n:RM
ROBERT H. HARNER,
Defendant
IN DIVORCE
~.EMFm
On behalf of Martha S, Hamer, the Plaintiff in the above-captioned action, Kathleen Carey
Daley, Esquire, does hereby file the following pre-trial statement for consideration of the Court:
1, Marital Assets - Attached hereto please find a listing of all marital assets including
their value, date of valuation, determination of whether any p0l1ion is non-marital and any liens or
encumbrances thereon, and a listing of non-marital asscts, their value, date of valuation, and any
liens or encumbrances thereon:
Please refer to Plaintiffs Inventory, Exhibit "A," which includes this information,
2, The names and addresses of each expert whom the Plaintiff intends to call at trial
Includes the following:
Bruce 1. Brown of Brown, Schultz, Sheridan & Fritz, an accounting firm, who
will offer testimony about the value of Myers-Hamer Funeral Home,lnc,
The address ofMr. Brown's firm is: 1011 Mumma Road, Wormleysburg,
Pennsylvania 17043,
A real cstate appraiser who will offer testimony regarding the value of the marital
residence and the commercial real property in Camp Hill, owned jointly by the pat1ies,
3, The Plaintiff intends to testify at trial, If any additional witnesses are identified, their
names and addresses will be provided to Dcfendant prior to trial.
4, A list of all exhibits which the Plaintiff intends to offer into evidence:
A, The Inventory of Plaintiff, Wife.
B. The Income and Expense Statement of Plaintiff, Wife,
c. Reports and analysis prepared on behalf of Bruce 1. Brown of Brown , Schultz,
Sheridan & Fritz regarding the value of Myers-Harner Funcral Home, Inc.
S, The gross income of the Plaintiff from all sources including payroll deductions, recent
state and federal income tax returns Rnd pay stubs:
Please refer to Plaintiff's Income and Expense Statement, Exhibit "B," which includes
this infonnation,
6, A listing of the expenses of the Plaintiff:
Please refer to Plaintiff's Income and Expense Statement, Exhibit "B," which includes
this infonnation,
7, The valuation of pension or retirement benefits and a calculation of the marital
portion thereof and the facts and documentation upon which the party relies to support the valuation:
Please refer to Plaintiffs Inventory, Exhibit "A," which includes this information.
S, Claim for counsel fees:
The Plaintiff does not make a claim for counsel fees,
9, Tangible personal property values:
The Plaintiff will testify as to the values of' all tangible personal property in
question,
] 0, Listing of marital debts:
Please refer to Plaintiff's Inventory, Exhibit "A," which includes this
information,
1 ]. The Plaintiff makes the following propofled resolution of the economic issues:
A Plaintiff will retain possession of her 1997 Chrysler Sebring
automobile,
B. Plaintiff will retain possession of her personal property, household goods and
furnishings, furs, and jewelry,
C, Plaintiff will retain possession of her Merrill Lynch account, her IRA account,
and her Raymond James/Passport account.
0, Plaintiff will re(\eive a cash distribution of Five Hundred Thousand
($500,000,00) Dollars, which can be achieved through the immediate refinancing of the marital assets,
E, Plaintiff will receive alimony in the amount ofThree Thousand Five Hundred
($3,500,00) per month, for a period offtve (5) years,
12, Other matters:
Plaintiff reserves the right to call such additional witnesses or offer such additional exhibits
or other evidence as may be necessary to respond to any evidence submitted by Defendant in his case
During this hearing, Defendant denicd Plaintifl's entitlemcnt of spousal support,
7, On or about Septcmbcr 15, 199B, Wife t1Ied t()r alimony pendente lite,
8, On or about October 20, 1998 a support confercl1cc was held bclore R, J. Shadday
to determinc Plaintitrs rcquest for alimony pendcnte lite,
9, On October 20, 1998 Plaintill's requcst for alimony pendente lite was denied, A copy
of the Order of Court, dated Octobcr 20, 1998, is attached hereto and incorporated herein as Exhibit
"B,"
10, Plaintilf t1Ied an appeal to the alimony pendente litc order entered on October 20,
1998.
II. On or about Novcmber 20, 1998 a hearing was held before The Honorable Edward
E. Guido regarding Plaintiff's appeal.
12, On Dcccmber 16. 1998 an Order of Court was entered directing Defendant to pay to
Plaintiff the sum 01'$1,889,00 per month as alimony pendente lite, A copy of the Order of Court,
dated Dccember 16, 1998, is attached hcreto and incorporatcd herein as Exhibit "c."
13, Since thc entry of the December 16, 1998 Order, the parties' son, Joscph P. Harner,
turned eighteen years old on March 23, 1999 and graduated from high school in June, 1999,
14, As a result of Jo~eph p, Harner turning eighteen and graduating from high school, the
alimony pendente lite order, entered on December 16, 1998, should be recalculated and modified,
15, As a result of the amendmellls made to the support guidelines, which became effective
April I , 1999, the alimony pcndente lite order, entered on Dt'Cember 16, 1998, should be rccalculated
and modified,
DR
.
"
vs,
. PLAIm'IFF I IN 'mE COURT OF ~ PLE;iS OF
CUMBERLAND CClUNl'Y. PENNSYLVIINIA
In1ESTIC REJ.J\TIQNS SECTION
CIVIL ACTION - SUPPOm'
MARTHA S, HARNER
ROBERT H, HARNER
DEFENDlINl'
00.
OF
\
I.:
I:
It..:.,
I )~
l'[
CCMPLluNI' FtJR SUPPOm'
'It) 'mE HOOORABLE JUDGES OF SAID coum':
1. Plaintiff resides at 852 Wynnewood Road, Camp Hill, PA 17011
2. Defendant resides at 1903 Market Street, Camp Hill, PA 17011
3. (a) Plaintiff and l>afendant were lMn'ied on September 11, 1976
at Gettysburg, Pennsylvania
(b) Plaintiff and Defendant were separated on March"4, 1998
(c) Plaintiff and Defendant were divorced on N / A
at
4. Plaintiff and Defendant are the parents of the following children:
(a) Born of nurrillge
Narre Birth Date ~ Resldence
--
Joseph P. Harner .Q2.1 ...1:..31: ~ 17 1903 Market St. , C,H. , P
Eli.zabeth A. Harner Jl5/-1:..~ 83 15 852 Wynnewood Rd. , C,H,P
Kathe!ine L, Harner ~/-1:..~ ~ 15 852 Wynnewood Rd. , C.H, P.
_1_1.-
_1_1-
(b) Born out of wedlock
N/A
_1_/-
_1_1-
_1_..1-
000 H140
OUMBERLAND 21
lnwc Infamurian QuCllialllWrc/O.lU SlIcel
ClOlDREN'S INfORAfA nON ((k(cD<l.anr's childrcn unly)
NAME (~~r. Fll'il. Middlcl
PA TEAAITY
illf QQ1!. 6Qli ~ EST AlIl1SHeDl
202 66 1627 03-23-81 17 M YES OR NO
--
202 66 1804 05-10-83 15 F YES OR //0
202 66 3389 05-10-83 15 F YES Ok //0
YES OR //0
YES OR //0
.
.
YES OR 110
Harner, Joseph p,
Harner, Elizabeth A,
Harner, Katherine L.
DEFENDANT'S INFORMATION
Name (Lasl, First, Middle) Harner, Robert H.
Maiden Name/AIIa.s N/ A
Address 1903 Market Street
Camn Hi 11
204-40-3881
--
Physical Description: HI. WI. Eyes
Defendant's Attomey Samuel L. Andes, Esquire
Defendant's Attomey Address P .0. Box 168, Lemoyne,
Employer Name Mvers -Harner Funeral Home
Employer Address 1903 Market Street
Camp Hill, PA :T1011 Employer Phone (717) 737-9961
QAC~U4 4U j!S81
Medical Insurance Carrier Name Blue Cross/Blue Shield Policy,fj02149000 (Croup)
McdicallnsuranccCarrierAddress Camp I Center, Harrisburg, PA 17177-8988
Carrier Phone (800) 255-0378
City
SSN
State ...ELL Zip Code
DOS 031 21/53
17011 County Cumberland
Telephone ( 717) 737 - 9961
Hair Race Caucasian
PA 17043
Nel~
Scrvi~c Type
Pace 2 o( )
FOnD IN.oo2
WurkerlD
,
.In the Court of Common Pleas of CUMBERLAND County, Pennsylvania
DOMESTIC RELATIONS SECTION
MARTHA S, HARNER ) Dockel Number 99-1?49 r::v
Plalnliff )
vs. ) P ACSES Case Number 914100330
ROBERT H. HARNBR )
Defendanr ) Other Slate ID Number 0-27919
!l!:lkr
AND NOW to wit, this
OCTOBER 20, 1999
it is hereby Ordered
that:
UPON CONSIDERATION OF THE RECO~~NDATION OF THE APL CONFERENCE OFFICER IT IS
HEREBY ORDERED AND DIRECTED ~'HE REQUEST FOR ALIMONY PENDENTE LITE IS DENIED,
PURSUANT TO RULE 1910,16- (j) AND HUSBAND HAVING THE CARE AND CUSTODY OF THE
PARTIES' THREE CHILDREN.
, ,~)l'f":: r<r:I';JV t::r"JI""l'J', i".)r.:i"'\'~!R")"
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BY THE COURT: Prolhonotary
DROI R.J. Shadday
cc I Petitluner and Respundent
Service Type M
JUDGE
Fonn DE-OOt
WorkcrlD 21005
HARNER
,
v, HARNER
PACSES Case Number: 914100330
Other Information (continued):
Facts Agreed Upon:
Facts in Dispute and Contentions with Respect to Facts In Dispute:
BOTH PARTIES INCOMES
-
Guideline Amount: $ 0,00
I MONTII
/ MONTII
DRS Recommended Amount: $ 0.00
DRS Recommended Order Effective Date:
09/15/99
Parties to be Covered by Recommended Order Amount:
!fIFK
Guideline Deviation:
OYES or GU NO
Reason for Deviation:
THE AMOUNT WOULD BE CALCULATED UNDER RULE 1910"16-5(il
Submitted by: R. j, SHADDAY
Date Prepared: OCTOBER 20, 1998
Page 3 of 3
Porm CM.022
Worker 10 21005
Service Type: M
NO. 98-00646 SUPPORT
98-1248 CIVIL
marital home other than that the parties had agreed to separate.'
14) Plaintiff readily admitted that she has been involved in two
extra marital sexual relationships since the time of separation.
The first began shortly after separation and continued into the
sununer. The second began after the first ended and was still
ongoing at the time of the hearing in thia matter.
15) In November of 1997, the parties agreed that Plaintiff would
quit her job at the funeral home so that ahe could enroll in law
school.
16) Flaintiff was accepted to Dickinson School of Law in March
of 199B. However, it is not clear whether the acceptance came
before or after the parties' separation on March 12.
17) She became enrolled as a full time student at the Law School
in September of 199B.
lB) Plaintiff has not worked since the time of separation.
19) From the time of separation until September of 199B
Plaintiff had an earning capacity of $21,000 per year gross, or
$1406 per month net. Beginning in Septemberr her net earning
capacity was reduced to $1,000 per month.
20) Defendant is the owner of all the stock of Myers-Harner
Funeral Home, Inc.
21) The parties have accumulated a little over one million
'Defendant's Counsel did elicit testimony from Plaintiff to
the effect that she had a suspicious relationship with a
classmate of the parties' oldest son. However, the evidence
adduced was insufficient to establish grounds for divorce.
4
NO. 98-00646 SUPPORT 98-1248 CIVIL
($1,000,000) dollars of marital property, almost all of whioh is
in Defendant's possession.
22) Defendant has not been spending any of the interest
dividends, or capital gains generated by the marital property.
He supports himself and the children entirely from the income
generated by the Myers-Harner Funeral Home, Inc.
23) Gross revenues at the funeral home are down approximately
15% in 1998 as compared to 1997.
24) Defendant has a net disposable income of $87,535.00 per
year. This amounts to $7295.00 per month.
25) Neither party has offered any I'eason to justify a deviation
from the support guidelines.
DISCUSS ION
SPOUSAL SUPPORT
We will first address the issue of spousal support. There
is no question that the Defendant has failed to prove that he had
grounds for divorce at the time he left the marital residence.
Therefore, as of the time of separation, the Plaintiff was
entitled to spousal support. S~ Little v. Little, 47 Cumbo 131
(1998). However, our inquiry does not end there.
The obligation to support a dependent spouse oontinues until
the uonduct of the dependent spouse provides a ground for
divorce. Roach V. RoacQ, 337 Pa.Super. 440r 487 A.2d 27, (1985).
Plaintiff candidly admitted that she has been romantically and
sexually involved with other men almost continuously since the
5
'~
NO. 98-00646 SUPPORT 98-1248 CIVIL
parties' separation. This case is identical to the case of
Williams v. Williams, 113 Dauph. 323 (1993) wherein Judge Turgeon
held that a spouse's post separation adultery precluded her from
obtaining spousal support.' Since the first meretriciDus
relationship began well before the filing of her complaint for
support, and since adultery is a ground for divorce,' we must
conclude that Plaintiff is not entitled to spousal support.
EARNING CAPACITY OF THE PARTIES
Defendant has asked us to accept his w-2 figure of $49,400
as his gross income. Plaintiff argues that his actual gross
income is no less than his 1997 gross income of $194,634 as
determined by her expert. We find that neither position presents
a true picture of Defendant's disposable income.
We have determined Defendant's annual net disposable income
to be $87,535. We started wi.th his 1997 net disposable income
as determined by Plaintiff's expert on Schedule 1 of Plaintiff's
Exhibit 1.' We subtracted the interest, dividends and capital
gains which are accumulating on the marital property and which
will be subject to equitable distribution at a later date. We
'Judge Turgeon did recognize that a defendant's prior
infidelity would preclude him from raising the subsequent
infidelity of his spouse as a defense to a claim for spousal
support. Howeverr in the instant case, as in the Williams case,
there is no allegation as to the Defendant's lack of fidelity.
'23 Pa.C.S.A. S 3301(a) (2).
'We found the testimony of Plaintiff's expert to be
generally more credible than that of Defendant's expert.
6
.
.
NO. 98-00646 SUPPORT
98-1248 CIVIL
further subtracted the health insurance payments which are a
legitimate fringe benefit paid by his employer. Finally, we
reduced the resulting figure by 15% to account for the business
downturn in 1998.' Our computations were as follows:
$147r998
-6,671
-7,893
-24,901
-5,551
$102,982
- 15.447
$ 87r535
Disposable income after taxes
Dividends and interest
Capital gains
Rental income'
Health insurance
Adjusted disposable income
Business reduction
Net annual disposable income
In view of the above, we find that Defendant's net monthly income
is $7295.
We now move to the earning capacity of Plaintiff. According
to the testimony, she is certified to teach. She did, in fact,
work as a substitute teacher from time to time during the
marriage. Plaintiff also had substantial experience as the
bookkeeper for the family funeral home for many years. Based
upml her educationr trainingr and experiencer we conclude that at
the time of separation she was able to find another job making at
least $21,000 per year.
fIoweverr Plaintiff contends that she can no longer work full
time because she is attending law school. Thereforer she argues;
'Defendant's expert testified that the business was off by
about 15% during the first six months. Additionally, Plaintiff
~onfirmed that the number of funerals Defendant projected doing
1n 1998 was about 15% less than the number done in 1997.
The
new
'This income was used to pay Plaintiff's salary in 1997.
rent has been reduced and the salary is now being paid to the
employee from the funeral home.
7
NO. 98-00646 SUPPORT
98-1248 CIVIL
hor net earning capacity is only $1000 per month. This poses an
intoreating question. May the Plaintiff's decision to pursue her
education in order to change careers operate to reduce her
earning oapacity for the purpose of determining APL or child
oupport? In the instant case, we conclude that it may.
At the outset, we note that the case law is far from clear
on this point. '1'here are those cases which hold that a spouse
may not voluntarily reduce his or her income and thereby secure a
reduction in child support. ~e~ser v. Weiser, 288 Pa. Super.
488, 362 A.2d 287 (1976). This is so even if the reduction in
income is the result of a decision to pursue an education which
would eventually result in greater earnings. Snivel~ Snively,
206 Pa. super 278, 212 A.2d 905 (1965). On the other hand, there
are those cases which have held that a support obligation may be
based upon the reduced earnings of a spouse who has aleeted to
pursue an education. See Giamber v. Giamber, 255 Pa. Super. 111,
386 A.2d 160 (1978) dealing with child support, as well as
Lazarou v. LazaroU, 180 Pa. Super. 342r 119 A.2d 605 (1956)
dealing with spousal support and McNulty v. McNulty, 500 A.2d
876, 347 Pa. Super. 363 (1985) dealing with APL.
The case before us is similar to Beeale v. Resler, 395_pa.
Super. 174, 576 A.2d 1100, (1990). In Beeat~ the defendant lost
his full time job through no fault of his own. '1'he Court held
that Defendant's decision to further his education was
appropriate. Therefore, he could not be penalized for only
8
~
.
NO. 98-00646 SUPPORT
98-1248 CIVIL
working on a part time basis. In the case at bar, Defendant
fired Plaintiff from a part time job where she was earning
$21,000 per year. We cannot fault her for electing to pursue an
education especially, where it had been previously agreed upon by
the parties. We are satisfied that she could not find another
part time position earning over $20 per hour while attending
school. We find that a job paying $10 to $12 per hour is more
realistic. Therefore, we hold that a net earning capacity of
$1000 per month is reasonable conunencing in September of 1998.
ALIMONY PENDENTE LITE
While conduct providing a ground for divorce precludes
spousal support, it is not a bar to Plaintiff's claim for APL,
See Keller v. Keller, 419 A.2d 49, 275 Pa.Super. 573, (1980) and
McKelvev v. McKelveYr 16 D&C 3d 611 (1980). Applying the Support
Guidelines Formula contained in Pa. Rule of Civil Procedure
1910.16-3 we compute the APL due Plaintiff to be $1,889 per
month. ·
In her briefr Plaintiff has requested that we make the APL
award retroactive to the filing of the Divorce Complaint. We are
unwilling to do this for several reasons. First and foremost,
the parties agreed to use September 19, 1998 as the conunencement
.
$7,295
-1.000
$6,295
x .30
$1,889'
Defendant's Net Monthly Income
Plaintiff's Net Monthly Earning Capacity
APL Due Plaintiff
9
.
NO. 98-00646 SUPPORT 98-1248 CIVIL
date of any APL award. Secondly, although Plaintiff raised a
claim for APL in her divorce complaint, she did not file a
pet.ition to bring the matter to issue until September 15, 1998.
Pa. Rule of Civil Procedure 1920.31(a) provides that when a claim
for APL is filed as a count in a divorce action, the award shall
be retroactive to the date of the written demand for a hearing.
In this case the petition filed with the Domestic Relations
Office on September 15r 1998 constitutes the first such written
demand for a hearing. In view of the above, we find that
Plaintiff is entitled to an award of APL in the amount of $1889
per month commencing on September' 19, 1998. We also direct that
Defendant maintain medical insurance on Plaintiff as part of this
award of APL.
CHILD SUPPORT
Two of the parties' children lived with Plaintiff and one
lived with Defendant from the time of separation until September
1998. All three of the children have lived with Defendant since
that time. Therefore, we must determine the amount of child
support Defendant owes to Plaintiff for the three mont.h period
from June 16, 1998 through September 19, 1998. We must also
determine the amount of child support Plaintiff owes to Defendant
commencing September 19, 1998.
In determining the support owed by Defendant to Plaintiff,
we have applied the formula set forth in Pa. Rule of Civil
Procedure 1910.16-3 in accordance with the directions set forth
10
, . .
NO. 98-00646 SUPPORT
98-1248 CIVIL
in Pa. Rule of civil Procedure 1910.16-5(h) dealing with divided
custody situations. We have determined that the net child
support obligation of Defendant to Plaintiff for the three month
between June 16, 1998 and September 19, 1998 is $1319 per month.
In determining the child support owed by Plaintiff to
Defendant we have applied the formula set forth in Pa. Civil
Procedure 1910.16-3 in accordance with the directions set forth
in Pa. Rule of Civil Procedure 1910.16-5(j) dealing with child
support obligations when the custodial parent owes APL to the
non-custodial parent. We have determined that the child support
obligation of Plaintiff to Defendant 1s $722 per month commencing
September 19r 1998. Deducting that amount from the $1889 APL
obligation of Defendant to Plaintiff, we hold that Defendant
should pay Plaintiff net APL of $1167 per month effective
September 19, 1998.
CONCLUSIO~
Based upon the foregoing, we conclude that Plaintiff is not
entitled to spousal support. Furthermorer based upon Defendant's
net monthly income of $7295 and Plaintiffs net monthly earning
capacity of $1406 until September 1998 and $1000 per month
thereafterr we have determined the following:
Defendant is obligated to pay Plaintiff child
support of $1319 per month from June 16r 1998 to
September 19, 1998.
Defendant is obligated to pay Plaintiff APL of $1889
per month commencing on September 19r 1998,
plus maintain health insurance coverage on her.
11
, .
.
NO. 98-00646 SUPPORT
98-1248 CIVIL
Plaintiff is
support of $ 72 2
1998.
obligated to pay Defendant child
per month commencing September 19r
Defendant ehould maintain health insurance on the
children.
. Deducting the $722 child support which Plaintiff is
obligated to pay Defendant from the $1889 APL which
Defendant is obligated to pay Plaintiffr Defendant has
a net APL obligation to Plaintiff in the amount of
$1167 per month.
The parties should share the unreimbursed medical
expenses of the children in proportion to their incomes
and earning capacity.
QRDER OF COURT
AND NOW, this 1&1'H day of DECEMBER, 1998, it is hereby
ordered and directed as follows:
1) Plaintiff's claim for spousal Rupport is DENIED.
2) Defendant is directed to pay Plaintiff child support in
the amount of $lr3l9 per month commencing June 16, 1998 and
ending on Septerooer 1998.
3) Defendant is directed to pay PlaintifflU'L of $1,167.00
per month commencing September 19r 1998, said amount being
the net amount due after deducting the child support
obligation of Plaintiff to Defendant in accordance with the
instructions of Pa, Rule of Civil Procedure 1910.16-S(j). He
is further directed to maintain health insurance coverage on
Plaintiff as part of the APL award.
4) Defendant shall maintain medical insurance coverage on
the parties' children. Any unreimbursed medlcal expenses
12
In the Court of Common Pleas 01' CUMBERLAND County. Pellnsylvanla
DOMESTIC RELATIONS SECTION
MARTHA S. HAANER ) Docket Nlllllher 99-1249 tv
Plahulff )
VS. ) PACSES Casc Nlllllher 914100330/D27802
ROBERT H, HAANER )
Defendant ) Oilwr Slale ID Numher
ORDER
AND NOW, to wit on this
4TH DAY OF AUGUST, 2000
IT IS HEREBY
ORDERED that the support order in this case be 0 Vacated or 0 Suspended or
(i) Terminated without prejudlcc,
effective
JULY 14, 2000
, due to:
AN AGREEMENT OF THE PARTIES PURSUANT TO THE EQUITABLE DISTRIBUTION SETTLEMENT,
THERE IS A REMAINING BALANCE OF $397.94, THE BALANCE IS TO BE PAID IN FULL
WITHIN TEN DAYS UPON RECEIPT OF THIS ORDER,
'0 ~
,y\ ~
()J~/
Edwdrd E, Glll do
JUDGE
DROI RJ Shudday
Kel plu:lntJff
defen:lant
Kathleen Ikl1ey, Esqul re
Sumuel. An:les, Esqlll re
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