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OImNll,I~I': CAIl'!'!!:H OHAMljJNO,
PI flln t I II
IN 'I'm: COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
Vo
CIVIL AC'l'ION - LAW
MAHK WA/)/i: (IHAMLING,
lJo f,undflll t,
NO, 98-2015 CIVIJ, 'I'ERM
AND NOW, [hiLi
1t. ,QEDE:R OF CQJ1lIT
,1 dilY of .rune, 1998, upon cons.ideration of
1'1&ln[111'n bkltlnn for Hearing, wh.ich appears to be a request for
a trial, a pretrIal conforonco is SCHEDULED for Fr.iday, August 7,
1998, ill 11 :00 a,m., in chambors of the undersigned judge, and a
nonjnry [rIal is SCHEDULED for Wednesday, August 19, 1998, at 9:00
a.m" in Courtroom No.1, Cumberland County Courthouse, Carlisle,
Pennsylvania. Pretrial memoranda in accordance w.ith C.C.R.P. 212-4
shall bo duo not later than 5 days before the pretrial conference.
BY 1'HE COURT,
Gerniloe Carter Gramling
111 South 24th Street
Camp Hill, PA 17011
Plaintiff, Pro Se
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JamBs Abraham, Esq,
122 Locust Stroet
Harrisburg, PA 17102
Attorney for Defendant
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?LE';]SE- j)bCL
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3. The parties were Divorced In the County of Dauphin, Pennsylvania,
2 Decernbar 6, 1989.
3 4. A property Settlement Agreement was entered Into on October 17, 1989.
4 (See Exhibit A)
5 5. PI,lntlff signed the divorce papers because of the amount of ohlld support
8 offered and defendant's voluntary submitting 10 a Wage Attaohment.
7 6. Defendant repeatedly flied, and received. decreases In the amount of child
8 support agreed upon In the Property Settlement Agreement.
9 7. PLAINTIFF has had to bring the defendant before the Courts repeatedly to
10 enforce the Health Insurance and Life Insurance sections of the Agreement.
11 8. Defend,nt is able to comply with the terms of the Agreement.
12 9. PLAINTIFF avers that the amount of Child Support In the Property Settlement
13 Agreement Is a contract enforceable under Pennsylvania Law.
14 (a) PLAINTIFF avers decreases In child support awarded to defendant
18 violate the terms of the Agreement and Pennsylvania Law.
18 (b) PLANTIFF avers that Defendant did not enter Into the Agreement In
17 good faith, but with the Intention of petitioning for a decrease each
18 time the time allowance In between petitions was met. Defendant
19 never intended to maintain Life Insurance on himself with dependant
20 ohlld as beneficiary nor to keep health Insurance on dependent child.
.21 The contract on defendant's part was subterfuge to coerce Plaintiff Into
22 signing the divorce papers.
23 (c) PLAINTIFF avers that the Property Settlement Agreement Is a
24 contract InclUding the amount of child support; It either Is or Is not a
25 Contract., It cannot be a contract for certain Items and conveniently not
28 a contract for other Items. The Defendant offered an amount of child
27 support and voluntary wage attachment and In return Plaintiff signed
28 the Divorce Paper, .freelng Defendant to re-marry. This Is a binding
29 agreement, contract.
Page 2
2
(d) PLAINTIFF avers that the voluntary submission, by Defendant, to a
Wage Attachment Is applicable to his present Job and to any wages
when and If he changes employers.
PLAINTIFF respectfully requests this court to:
a. Relneblte the arrearagee removed by the granted Petitions for
Decrea.e amounting to $20,180 plue applicable Intereet and
coete.
b. Compel Defendlnt to have hl8 wage8 attached for child
8UPPOrt rather than waiting for enforcement to catch up with
him.
3
'4
8
8
7
8
9
10
11.,
12
13
c. Enforce the contractual amount of $190/week child eupport a8
agreed upon In the Property Settlamant Agreement Contract.
JtArn~L t}i" JOMt
~ernllee Carter Oremllng, pro Ie
111 South 24" Street
Cemp Hili. Pennsytvenla 17011
14
BY:
18
18
17
DATE:~'Ll. 3;
179Y
,
18
19
20
I verify Ihe' the slelements made In Iha forgoing am trua end corracl. I undo"
penemes 0' 19 Pe C, S, SectIOn 4904 relallng to unsworn 'alslllcallon to aulho
Gamllea Carter Gremllng
1;-
21
22
'lID Itr
Dated:
23
24
25
28
27
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29
Page 3
MATRIMONIAL BB'l"l'LIlMBNi' AOOBMB"'!'
THIS AGREEMENT, made this .....LL day of ootober, 1989,
between Mark W. Gramling, hereinafter called "Husband" and
Gernilee c. Gramling, hereinafter called .Wife".
WI'.l'NESSETH I
The parties hereto, being Husband and Wife, were lawfully
married on November 27, 1982/
On March 20, 1987, the parties entered into a Property
Settlement Agreement/
Husband and Wife desire to settle and determine finally and
for all time, their mutual property rights.
The parties hereto acknowledge that they have oonsulted
their attorneys and have been advised by their attorneys of all
their mutual rights and duties/
NOW THEREF'ORE, in consideration of the mutual promises,
covenants and undertakings herein oontained, the parties, each
intending to be legally bound, agree to modify the Property
Settlement Agreement of Maroh 20, 1987 as followsl
I . 9!.il!D SUPPOR!
Husband agrees to modify the current Order in Dauphin County
Domestio Relations, 460 D.R.1988 of $140 per week for the support
of Marcel L. Gramling to $190 per week effect! ve September 25,
1989, and to continue to pay as spousal support $50 per week
.
".....,.,--~
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until the iuuanoe of the Final Deoree in D.t.voroe. Wife hereby
egrees to dismiss with prejudioe the appeal of the January 17,
1989 Order of JUdge Morrison pending in the Superior Court.
Husband agrees to the voluntary attaohment of his wages and
a wage attachment is currently in effeot through Dauphin County
Domestic Relations.
Further, Husband shall continue to cover Marcel as a
dependent on hls health insurance polioy for as long as Maroel is
eligible to be claimed as a dependent.
2 . ALIMONY
Husband agrees to pay the sum of $50 per week as alimony
commencing upon the issuance of the Final Decree in Divorce and
ending five (5) years from the date of the Decree. The parties
agree that the amount of the order may be. modified based upon a
change in the parties' respective incomes, but that the term of
years shall not exoeed five years. Husband's obligation shall
cease in the event Wife remarri~s or oohabits with a member of
the opposite sex.
3. LIFE INSURANCE
The parties agree that Husband shall maintain life insuranoe
coverage on his life in the amount of $100,000 with Maroel
2
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3. One Thousand DQllars ($1,000) upon the aigning by Wife
of an Amended Federal Tax Return for tax years 1987 and 1988,
allowing Huaband to allow Marcel and Wife aa dependents for 1987
and 1988 only,
These returns shall be filed no later than
December 31, 1989.
The parties acknowledge that either may use the enforcement
powers of the Court to enforce the terms of these provisions.
6. MUTUAL RELEASE
Except as otherwise provided, herein and so long as this
Agreement is not oanoelled by subsequent agreement, the parties
hereby releaBe and discharge absolutely and forever each other
for any and all rights, claims and demands, past, present and
future specifically from the followingl support or alimony from
the other, counBel fees and costs, division of personal or real
property, olaims or rights of dower and right to live in the
mar.! ta 1 home, right to act as executor or administrator in the
other's estate, rights as devisee or legat~e in the Last Will and
Testament of the other, any claim or right as beneficiary in any
life insurance polioy of the other, any claim or right in the
distributive share or intestate share of the other parties'
estate and any claim or right as beneficiary in any pension or
retirement fund of the other.
4
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7. PERFORMANCE OF NEc~SSARY ACTS
Eaoh party shall execute any and all documents and perform
any aot neoessary to carry out and effectuate the terms and
provisions of this Agreement.
8, AGREEMENT VOLUNTARILY AND cLEARI,Y UNDERSTOOD
Each party to this Agreement aoknowledges and declares that
he or she respectively.
(1) Is fully and completely lnformec1 as to the facts
relating to the subjeot matter and their Agreement as to the
rights and llabilities of both parties.
(2) Enters into this Agreement voluntarily after receiving
the advice of independent oounsel, namely, Kathleen C. Daley,
Esq. for Wife and Lori K. Serratelli, Esq. fcr Husband,
(3) Has given careful and mature thought to the making of
this Agreement,
(4) Has carefully read each provision of this Agreement,
(5) Fully and completely understands each provision of this
Agreement, both as to the subject matter and legal affeot.
9. LAW APPLICABLE
This Agreement Bhall be governed, construed and enforced
under the statute and oase law of the Commonwealth of
Pennsylvania.
5
,
10. ENTRY AS PART OF DECREE
1
It is the intention of the parties that this Agreement is
predicated on the divoroe of the parties, Eaoh party shall
exeoute an affidavit of consent upon the execution of this
Agreement. This Agreement shall survive any action for divorce
whioh may be inRtituted or proBecuted by either party and no
order, judgment or decree of divoroe (temporary, interlooutory,
final or permanent) shall affeot or modify the finanoial terms of
this Agreement. This Agreement shall be embodied in and made
part of any suoh judgment or deoree of final d:l,vOl"Ce but shall
not be mel'ged into the divoroe decree. It is specifically agreed
that the 5-year term of the alimony provision is non~modifiable.
This Agreement shall be enforoeable under the DivDroe Code of
1980, as amended.
I,
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IN WITNESS WHEREOF, the parties hereto have exeouted this
Agreement the day and year first written above,
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Wl'l'NESS I
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(SEAL)
(SEAL)
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GERNILEE C. GRAMLING
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GERNILEE C. GRAMLING,
Plaintiff
IN THE COUR'f 01" COMMON PLEAS OE'
CUMBERLAND COUN1'Y, PE:NNSYLVANIA
V.
CIV~L ACTION - LAw
MARK W. GRAMLING,
Defendant
NO. 98-2015 CIVIL TERM
ORDER 01" COURT
AND NOW, this
1st
day of December 1998, a pretrial
conference in the above matter is SCHEDULED for I"riday, February 5,
1999, at 11:00 a,m., in Chambers of the undersigned jUdge,
Cumberland County Courthouse, Car lisle, pennsyl v/lnia.
Pretrial
memoranda shall be submitted by counsel in accordance with C.C.R.P.
212-4, at least five days prior to the pretrial conference.
A NONJURY TRIAL In the above matter is SCHEDULED for Thursday,
March 4, 1999, at 1:30 p.m., in Courtroom No.1, Cumberland County
Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
Gernilee Carter Gramling
111 South 24th Street
Camp Hill, PA 17011
Plaintiff, Pro Se
t..a>:~ .....'J"( "C I;J. /1/ q B ,
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James Abraham, Esq.
122 Locust Street
Harrisburg, PA 17102
Attorney for Defendant
fL2-as.'i-?L~CL
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Cumberland County Court
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Administra~or--
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UNITIO STATES P08TAL SERVICE
FIrII.Olua MIll
POItage & Fin PIId
USPS . .
Ptnrlt No, 0.10
· Print your name, addresa, and ZIP Code In this box. .
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GERNILEE CARTER GRAMLING,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND cOUN'l'1{, PENNS1{LVANIA
v.
MARl< WADE GRAMLING,
Defendant
98-2015 CIVIL TERM
PRE-TRIAL cONFEREN~
A pre-trial conference was held in the
above'-captioned matter in the chambers of Judge Oler on Friday,
August 7, 1998. The Defendant was represented by James Abraham,
Esquire; the Plaintiff appeared pro se.
This is an action on a contract for child
support. The primary legal issue in the case is whether such an
action may be maintained where the support agreement was
oontained in a marItal settlement agreement incorporated (but
not expressly merged) in a Dauphin County divorce decree, and
where a Maryland court is presently disposing of a support case
involving the child and has in the past modified the support
order (WhiCh was originally entered DauphIn County). A
oomplicating factor is that the marital settlement agreement at
issue itself purported to modify an existing chIld support order
in Dauphin County.
The Plaintiff and counsel are requested to
furnish briefs on the legal issues which they perceIve to exist
in this case at least five days prior to the commencement of
trial. Trial is scheduled for Wednesday August 19, 1998, at
9:00 a.m., by separate order of court dated June 19, 1998.
_4 _,
.f
Plaintiff and counsel have indioated that they
may deoide to have this trial oontinuod so that they can
determine what the Maryland jUdiciary will do with an appeal
presently pending in the Court of Special Appeals in AnnapOlis,
Maryland. In that event, Plaintiff and counsel are requested to
notify the court that they wish the case continued.
The Court has referred Plaintiff and counsel to
the case of NichOlson v. Combs,
Pa.
_, 703 A.2d
407 (1997). However, this oase appears to deal with an
agreement entered into prior to the 1988 amendments to the
Pennsylvania Divorce Code.
By the Court,
J loIesley
Oernilee Carter Gramling
11.1 South 24th Street
Camp Hill, PA 17011
Plaintiff, Pro se
(l'\',""",')r-~._Q.,-,i 87.i;C1g
James Abraham, Eqsuire
122 Locust Street
Harrisburg, PA 17102
P'or the Defe.ndant
IT
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WHEREFORE, Plaintiff, Gernllee Carter Gramling. respectfully
request Your Honorable Court to reinstate the arrearages plus interest of
$26,074.69, representing reinstated Child SUflport plus Interest;
ENTER AN ORDER compelling Defendant to have his wages
attached by his Informing his employer and proper legal venue (presently Wake
County, NC) and;
BEGIN paying the sum of $190 plus $100 arrearages $290.00,
weekly Child Support, withheld from wages. forwarded by Defendant's employer
to the proper Venue, presently Wake County, North Carolina.
Response to New Matter
10. Reply to Paragraphs 1 through 9 of Answer are Incorporated herein.
11. Disagree. The claim Is breach of a contract.
12. Disagree, Plaintiff Is using the Courts In an appropriate way to bring Defendant
Into compliance with a contract. Particularly at this time Defendant does not
have, and has not had for 11 months, a wage attachment and Is not voluntarily
paying child support. In the Matrimonial Settlement Agreement it states that the
patties aCknowledge that either may use the enforcement powers of the Coutt to
enforce the terms of these provisions, Plaintiff Is using the enforcement powers
of the Court to bring Defendant Into compliance with the Agreement.
13. Disagree. Plaintiff is trying to bring Defendant Into compliance with his voluntary
wage attachment commitment, his legal obligation to maintain health Insurance
on his dependent child and to maintain life Insurance on himself for the
protection of child support cash In the event of his untimely death. The appeal
3
on the Maryland Order Is for the addition of Private School Tuition to the base
amount of Child Support (which I am not gelling anyway). This Is unrelated to
the Matrimonial Settlement Agreement Contract.
14. Disagree
15. Disagree. Plaintiff Is asking for enforcement of a contract made between
Defendant and Plaintiff which Includes his voluntarily submitting to a wage
attachment, maintaining life Insurance on himself and health Insurance on his
child as well as basic Child Support Amount.
16. Disagree. Defendant has never voluntarily complied with any aspect of Ihe
Agreement, until being taken to Court and then for only brief times until which
tlmo he stops complying again.
17. Disagree. Cumberland County has Jurisdiction over the enforcement of a
Contract made between Plaintiff and Defendant. the child support money Itself Is
enforceable under UIFSA and Cumberland County has been attempting,
unsuccessfully to get the child support from Defendant through UIFSA, to date
unsuccessfully.
18. Disagree. In view of Defendant's ongoing contempt of the entire law and
specifically his obligations to his only child the Plaintiff has had no other choice
then to continue to seek the Court's assistance In compelling compliance.
19. . Plaintiff submits that In view of the twelve years of forcing Plaintiff to continue to
seek the Court's power to compel Defendant to comply with the contract and his
legal obligations to his only child that sanctions should be Imposed upon him by
entering the aforesaid requests and finding the Defendant In Contempt for
4
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Lommonwealth of Pennsylvania
County of Dauphin, ss:
[.1.l~IJt:lJM~. 9... .GlJlI.l1ItH:l9J.... __.....
In the Court of Corrmon Pleas of
Dauphin County, PflnnsYlvonio
..._._..~.....M._.~__.___.._.__..___
Plaintit f
Vs.
MARX W. GRAMLING
..._......_-_.......~-._.._...__.~_.
.. .. .... .. .. .. .. ..................,'.......... ...........................
No, ..._.I.l~:..~h_......h.. 19..~!
, Defendant
Decree.in Divorce
AND NOW.
M-- ",---I.iA'/
b
'19_~.
i l is ordered and decreed that
GERNILEE c. GRAMLING
Plaintiff. and
MARK W. GRAMLING
.'.
Defendant. are divorced (rom the bonds of matrimony.
Fllrther, the Matrimonial Settlement Agreement executed by the
parties on October 17, 1989 is incorported herein and the parties
are Ordered to comply wih the terms of said Agreement.
BY THE COURT,
.~-.~._.d~._...._
JUdge
CertIfied
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until the issuanoe of the Final Deoree in Divoroe. Wife hereby
agrees to diemios with prejudice the appeal of the January 17,
1989 Order of Judge Morrison pending in the Superior Court.
Husband agrees to the voluntary attachment of hie wages and
a wage attachment is currently :In effect through Dauphin County
Domestic Relations.
Further, Husband shall continue to cover Marcel as a
dependent on his health insurance polioy for as long as Marcel is
eligible to be claimed as a dependent.
2. ALIMONY
Husband agrees to pay the sum of $50 per week as alimony
commencing upon the issuance of the Final Decree in Divorce and
ending five (5) years from the date of the Decree. The parties
agree that the amount of the order may be. modified based upon a
change in the parties' respective incomes, but that the term of
yearo shall not exceed five years. Husband's obligation shall
cease in the event Wife remarries or cohabits with a member of
the opposite sex.
3, LIFE INSURANCE.
The parties agree that HUB band shall maintain life insurance
coverage on hiB life in the amount of $100,000 with Marcel
2
designated as irrevocable benefioiary until she hOB completod
college or through 8ge 21, whichever oocura firot. Husband ahall
supply Wife sn annual statement by November 1st of each year
..
confirming that Ilaid polioy is in effeot. 'rhe proceeda of. 81.1id
insurance shall be held in trust for Marcel's benefit to replace
child support in the event of Husband's death prior to her
aohieving majority.
4. COLLEGE TUITION
The parties agree that they shall share the expense of their
daughter Marcel's college tuition expenses based on their
relative economio oircumstances ~l the time said expenses are
incurred.
5. LUMP SUM SETTLEMENT
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In satisfaotion of Wife's claim for equitable diBtribution,
Husband agrees to make the following payments to wife. All
paymentB shall be made by certified oheckl
1. Husband'S attorney shall hold One ThouBand Dollars
($1,000) in escrow to be distributed to Wife upon the issuance of
the Final Decree in Divorce.
2. Two ThouBand DollarB ($2,000) over a period of five
months in the amount of $400 per month due the first day of each
month commenoing sixty (601 days from the date of the Divorce
Decree.
3
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7. ~RMANCE OF NECESSARY~T~
Each party sh~ll execute any and all doouments and perform
any act necessary to oarry out and effectuate the terms and
provisions of this Agreement.
B. AGREEMENT VOLUNTARILY AND CLEARLY UNDERS'l'OOD
Each party to this Agreement aoknowledges and declaree that
he or she respectively I
(1) Is fully and completely informed as to the facts
relating to the subjeot matter and their Agreement as to the
rights and liabilities of both partiesl
..
(2) Enters into this Agreement voluntarily after receiving
the advice of independent. counsel, namely, Kathleen C. Daley I
Esq. for Wife and Lori K, Serratelli, Esq. for Husbandl
(3) Has given careful and mature thought to the making of
this Agreementl
(4) Has carefully read each provision of this Agreementl
(5) Fully and completely underetands each provision of this
Agreement, both as to the subject matter and legal affect.
9. LAW APPLlCABL~
This Agreement Bhall be governed, construed and enforced
under the statute and case law of the Commonwealth of
pennsylvania.
5
7. Admitted and Denied. It ia admitted that Plaintiff
continues to file lawsuits agai.nst Defendant regarding support. It
is deni.ed that any of sai.d actions are meritorJ.OUll by Plaintiff as
Defendant has continued to comply wi.th any and all domestic
relations orders and/or the terms and conditions of the property
Agreement.
8. Admitted, and by way of further answer, Defendant has
continued to comply with the terms and conditions of the Property
Agreement.
9. Denied. The averments contained in Paragraph 9 of
the Complaint, and its subsections, are denied in that they
constitute a legal conclusion to which no response is required. 'I'o
the extent a response is required:
(a) Decreases or increases in support do not violate the
agreement as there is nothing in the Agreement to preclude
modifications to the agreement;
(b) Defendant entered into the Agreement in gOOd faith
and Defendant's intentions and actions have been to continuously
comply with its terms and conditions;
(c) the Property Agreement does
modification of the child support amount as
not preclude
to increases
the
decreases;
or
(d) the terms and conditions of the Agreement have been
fully complied with by Defendant at all relevant times hereto.
WHEREFORE, Defendant, Mark W. Gramling, respectfully
re~leBtB Your Honorable Court, to dismiss Plaintiff's Complaint,
and the relief requested, and specifically deny:
A. the reinstatement of arrearages, interest or cost;
B. the issuance of an order regarding wage attachment,
other than the existing chHd support order;
C. the issuance of an order of $190/week in child
support.
NEW MA'l"I'ER
10. Defenadant's answers to Paragraphs 1 through 9 of
the Complaint are incorporated herein by reference thereto and made
part hereof.
11. Plaintiff's Complaint fails to state a claim upon
which relief can be granted.
12. Plaintiff's claims are barred by estoppel as said
claims for support have been addressed and determined by the
decisions of the Circuit Court For Allegany County, Maryland. A
true and correct copy of the Memorandum and Order of Court, dated
December I, 1997, decreasing the support amount, is attached hereto
and made part hereof as Exhibit "A".
13. Plaintiff's Complaint constitutes forum shopping as
Plaintiff is attempting to circumvent the Maryland support order,
Exhibit "A", by filing her action in Cumberland County; which is
further evident and established as Plaintiff has even appealed the
Maryland support decrease Order, Exhibit "A", which appeal is still
pending.
. ..,,' '..'
14. Plaintiff / S Complaint constitutes res judicata as
the claims tor support contained therein have already been
determined by the Maryland Court, and its Order, Exhibit "A"
hereto.
15. Plaintiff I s Complaint is barred as an accord and
satisfacton of the support. issues has been determined by the
Maryland Court/ and it.s Order, Exhibit "A" hereto.
16. At all relevant times hereto, Defendant has fully
complied with the tet~s and conditions of the Property Agreement.
17. The Maryland Court Order is legal and enforceable
through Cumberland County and said Order is to be given full faith
and credit by Cumberland County, and further recognized and
enforced ~n accordance with URESA.
18. In view of the aforesaid Maryland Court Order,
Plaintiff / s Complaint is frivolous and without merit / and has
unreasonably and unjustifiably burdened Defendant by having to
defend a frivolous lawsuit.
19. Defendant submits that in view of the frivolous
nature of Plaintiff I s lawsuit / sanctions should be imposed upon
Plaintiff, including but not limited to/ payment to Defendant of
Defendant/s costs of defending said suit, and reasonable attorney
fees in the amount of $2/000.00.
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GERNILEE CARTER GRAMLING,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
MARl< WADE GRAMLING,
Defendant
98-2015 CIVIL TERM
EBE=TRIAL CONFERENCE
A pre-trial conference was held in the
above-oaptioned matter in the chambers of Judge Oler on Friday,
February 5, 1999. The Defendant was represented by James
Abraham, Esquire; the Plaintiff appeared pro se.
This is an action on a contraot for child
support. The primary legal issue in the case is whether such an
aotion may be maintained where the support agreement was
contained in a marital settlement agreement incorporated (but
not expressly merged) in a Dauphin County divorce decree. The
marital settlement agreement in question is dated October 17,
1989. It has been represented by Defendant's counsel and
Plaintiff tnat a Maryland case involving support which was
pending in /:In appeal in an appellate court at the time of the
pre-trial conference on April 7, 1989, has been resolved by the
appellate oourt adversly to Plaintiff.
It has also been represented by counsel for
Defendant and Plaintiff that a child support appeal (appeal by
both parties) in Cumberland County is presently pending before
the Honorable Edgar B. Bayley, and is soheduled to be heard on
February 22, 1999; Plaintiff has indicated that she mayor may
not pursue her appeal in that particular matter.
OERNILEE OARTER GRAMLING,
plaintiff
IN THE COURT OF COMMON PLF~S OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
MARK W. GRAMLING,
Defendant
No. 98-2015 CIVIL TERM
ORDER OF COURT.
AND NOW, this 4th day of March, 1999, upon
consideration of the plaintiff's complaint in the
above-captionedrnatter, and fOllowing a nonjury trial, the
record is declared closed, and the matter is taken under
advisement.
The Plaintiff and counsel for the Defendant are
requested to furnish briefs to the Court on the issues which
they perceive to exist in the case within three weeks of today's
date.
By the Court,
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GERNILEE CARTER GRAMLING,
111 South 24th street
camp Hill, PA 17011
Plaintiff
PRO SE
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JAMES ABRAHAM, ESQUIRE
122 Locust Street
Harrisburg, PA 17102
For the Defendant
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OCT 2 3 199~
.~
GERNILEE C GRAMLING
PLAINTIFF
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
.
'"
v
MARK WADE GRAMLING .
DEFENDANT ·
'"
NO. 98.2015 CIVIL TERM
CIVIL ACTION. LAW
L~
lEGAL ISSUES
IN SUPPORT OF PLAINTIFF'S
GEfiNILEE CAR.TER GRAMLING.
CASE
Before the Honorable J. Wesley Oler; Jr.
4
V
ARGUMENT IN SUPPORT OF PLAINTIFF'S POSITION
1. The language in the Marital Settlement Agreement Is clear in its
statement that it Is incorporated, but not merged Into the divorce
decree.
2. The Marital Settlement Agreement addresses the amount of child
. support to be paid weekly by DEFENDANT. Since the Marital
Settlement Agreement was Incorporated but not merged with the
Divorce Decree the Matrimonial Settlement Agreement survives the
Divorce. Jones v Jones, 651 A.2d 157, 438 Pa.Super, 26,Super
1994.
3. DEFENDANT'S argument that change of circumstance had
occurred for him In terms of employment and debt obligations (true
or false), does not constitute change of circumstance allowing a
decrease In child support payments to PLAINTIFF. Jones v. Jones
4, PLAINTIFF'S subsequent filing complaint for child support
independent of the Matrimonial Settlement Agreement does not
waive her rights pursuant to the Child Support amount In the
4
.
designated as irrevooable benefioi!lry until she has completed
college or through age 21, whichever occurs first. Huaband shall
supply Wife an annual statement by November 1st of each year
confirmin" that said polioy is in effeot. The proc(,eda of s/lid
insuranoe shall be held in trust for Marcel's benefit to replace
child support in the event of Husband'B deuth prior to her
achieving majority.
4. COLLEGE TUITION
The parties agree that they shall share the expense of their
daughter Marcel's oollege tuition expenses based on their
relative economio oiroumstanceB i~ the time said expenses are
incurred.
5.
r.UMP SUM SETTLEMENT (. o'f,1..:t'" ~jC.. te..-
etJf
Wife's claim for equitable diBtribution,
In satisfaction of
Husband agrees to m4ke the following payments to wife. All
payments shall be made by certified checkt
1. Husband's attorney shall hold One Thousand Dollars
($1,000) in escrow to be distributed to Wife upon the issuance of
the Final Decree in Divorce.
2. Two Thousand DollarB ($2,000) ovar a period of five
months in the amount of $400 per month due the first day of each
month commencing sixty (60) days from the date of the Divorce
Decree.
3
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bne Thousand Dollars ($1,000) upon the Bigning by Wife
3.
of nn AmBnded Federal Tax Return for tax yoars 1987 and 1988,
allowing Husband to allow Marcel and Wife as dependents for 1987
and 1989 only.
These returns shall be filed no lator than
December 31, 1999.
The parties acknowledge that either may use the enforcement
powers of the Court to enforce the terms of these provisions.
6. MUTUAL RELEl'ISF;,
Exoept as otherwise provided. herein and so long liB thiB
Agreement is not cancelled by subsequent agr.eement, the parties
hEjreby releaee and discharge absolutely and forever each C1ther
for any and all rights, olaims and demands, past, present und
futuro speoifically from the following I Bupport or alimony from
the other, counsel foes and costs, division of personal or roal
property, claims or rights of dower and right to l.tve .tn the
marital homo, right to act liS executor or administrator ill the
other's eBtate, rightB aB devisee or legatee in the Last Will and
Testament of the other, any claim or right aB beneficiary in any
life insurance policy of the other, any olaim or right in the
distributive share or intestate share of the other parties'
estate and any olaim or right as benofi Diary in any peneion or
retirement fund of the other.
.
4
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10. ENTRY AS PART OF DECREE
It is the intention of tho parties that this Agreement is
predicated on the divoroe of the parties.
Each party shall
exeoute an affidavit of consent upon the execution of this
Agreement.
~his Agreement shall survive any action for divorce
which may be instituted or prosecuted by either party and no
order, judgment or decree of divoroe (temporary, interlocutory,
final or permanent) shall affect or modify the financial terms of
this Agreement.
This Agreement shall be embodied in and made
part of any such judgment or deoree of final divorce but shall
no~ be merged into the divoroe dioree. It is Bpecifically agreed
that the 5-year term of the alimony provision is non-modifiable.
~'h i s Agreement sha 11 be enforceable under the Divorce Code of
-
1980, as amended.
-..-'
IN WIT.1ESS WHEREOF, the parties hereto have executed this
Agreement the day and year first written above.
wn'NESS,
(SEAL)
Ja .Ctr--Pl. [~a11JjjLi0
-/~Ju,v ~ &'"3
(SEAL)
..
GERNILEE C. GRAMLING
6
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Soldh,"Rornbtttge, BindmV: Form,. H466
COURT OF COMMON PLEAS
DAUPHIN COUNTY DOMESTIC RELATIONS SECTION
19MM
PLAlN'rtFF'a .
IJCMIII1' . .',
88 D.R.
460 I,
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^l'llumlce FOI:
Effective Dale: March ~______
19.!.lJ
l'INlnll(f:_.__,._
Dale Or Enll)': March 10,
IlJHH
/)cralllbnt:
JudIe
Morrison
8uPPUII PrUCeadtllP:
Judicial Cnda,Chapler 67
Garnilas C. Gramling
vs
Subchapla, A(..)..8ubc:hapler.BC-.-)....
IIIIU.UOM COUI\I)'.L..J.. uStat..(_.)
Mark W. Oramli n9
IIl1pnndlnl COWlt)' f.....>--..slata(. ..J-......
'l'rllns.t~r. f rpm...XQfJs. CQ1ln1;y...
March 10, 198U- 'l'nl/lflfor from York County. De(e..!l.d..~_~!: t.()L<!L..the...~.~I1!.......
of $280.00,lweok for wJfn Itllfi (~hlld. Plus$5,.OQ/weeIL'2.IL!'Ir.rE;>.'!D'!.........lEffe.<:.tJYl;l...
M J or'" Iud ordol. I ~i 120. DO/wi fe '.i1:~.O_..OO/cJ].Pd..,........
March 7, 19BIJ,
MaEch 16, 19f:l0-.
March 16, 19HA..
March 16, 1980-
'l'nHlH 11.11 hllll boon accopt.ed by Il.<l.1l2hi.n. Cou!1..ty..
AITOII rll 111'/1 $ {., '1'10,00 as ..<?X._.3.:-.l2-:.~~.'p'e!...J.a.~_~ Sto\,er!.~ork._Co_..__..
Wago Attilchlllont- $285. 20/week Mar-Allen Concrete Products.
.. __u._......'<. __..__._____.__., ..____..... "'_'___._ ..____._...
l'!.Clr:c.h 16'.1980- Defondclllt 1/1 to provjde..healt.b.ins!:lra.l]~cove_r:.age t.hat_~~.__..
,ay~i1able . for dependtln bJ u t the rlace(JfEl1Iploy!l\e.ll..~.~ ..___.___.....
Apr,i), 4. 1968 - TranEJfer detendant' I3portiQ;!L9:f. ca~e tQ.~A9a6tl!:t'q9unt.Y__
where he i6 now residing,
.J\lly 15, ,.1988- Transfer.: LanclIBt\lr has r.ejected the tranafecoocJl.l,Il;le he.J1M_~).rea.dY-.ooen
wage attached.
November 10, 1988 ~ Modification or Support Ord~E'.file5!~._...E.:fe!'da~~_top~.:L.
thes\lm of $172.()() por: wook for the support of hi~.,"'ifel:\l)~<::.hil~..!:!~l?c::~lL_._..._.
effective S(Jptom!wr 26, ]lJ88.
Plus $10.00 per!l~~.k on~~EE.~ars~1'~.be__.
allocated I $127.00
NOV 2 5 1988
(or child .and $45.00 for~_~~~.'
Isl tlarence C. Morrison, J.
. _._n_.._..~~___.. ___~___._ ......__.__
OHDUl 01 1\'[, N:HMf;NT OF WAGES FILED
.,.....-----.-...-.-. ------..-----..--...-- - .,.._-_._-_.~--
Decorublll: 2:1, 19BH " Appoul, (Uod.
Januury 17, PIIII/. 1.11'1101' to ~ll $190'~
, .
Requ~s ted_b.L~_ttOJ:!l.!~LJot'..J:_he plaJnttfJ ..__.
week PIUsu($l()'cojl_arre_~..J:!?,. Al1.O"'c.!l.ted:.._.____
($140 ~Ilr WlHlk I'llr child, $50 per week for-wife.-Effectiveu9-/26/88...
, ,
.lal1l1lH-y 17 ,J~IIII).. Urdu" of (~ourt,filed. /sl-.Clarence.C MorJ;.i.son,J ...
· 'J Mi~ OHDlH 01' ATTACHMENT OF..WAGES AMENDED
!\mllllnl
I>~le Rec'd
Amount
DIIte R~c'd
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fllllnlll..
J:.'
I'Wlhllllll'.ry'II'1I111
,,,,,,if'i i I"tll'
?l:;7d.'j, 0 /J . d, ~ . C..nt~ii.. . "'__"_"hu,___
-..------.-- --d--~o.r~v:c-~- ~O' - ;. . ...
-:X~1>ruary_Jl.LJ989 -_Ne_ti<:o~_()J App~Cll. Cet:tJfi~_9L. Sery.ic~_L.ule.Q.!___m.____.
___.FebruarY_.22, 19.?_~-'!'.r~.i.2t Of~~.E.c:..~edinJ.\~..fily_d.L. (P.ate~_.}II!t~,.1~S92..__
'- June 22. 1.9S.2..:_qp.inio!!LJil~s1.._(Se~ 02ini2nJ!l..LUeL.__ ......__.. _._. .____
Nev. 2S, 1989 -Order, filed. And New, this Octeber'16,:1989~he w~t\:1J.nn_~pp~~.~__..
...._-.-,.. . --.~- "1,' '.--. -. .,.~-_..., ..-~--.__.__._._..___.._ ....__._._____.._..____....____.,. _.._,..__..... ". ....___ . _
is, dismissed fer hil ure. ef appellant to. file briefs. Per CUriam.. .. ,._
".--... ...__n.... ., ';"'_'. 'h___.. '__.. .. ._.__....___.. ...____.. ...___.. ...._._._.___. " .
.._-.Jan,...12......l99!L"'-_ Madi.f.ic a tin.tLaLSuppar LOxder .--fi.led ,--Da.fendant,_t o..P8Y-t.he ..sum
.-. ...oU24Q-perwee.lcfD.r:....the .Sllp.poJ:.taLh.ts. child-Marce1_olilld.. w.1~-.eff-&Gt.lve_._._...
..---9_L25J..B!}~_.A 11 MR ted' $l90/..A..Lf..oL.C.hild...and...$S'O'~ek_.f~hiid2Def8Adant-.."_
. ..__t.o.. .CllJ1.tinup. mpcl ic.aL_iIlSJ.lTR"r'" ...i'OL.MlU:ceL--s'pauaa!.-su ppa.l::.t....to.-cant.inu&_.uA.l;.i1.. '.'_
.JlUl..!.lIDll;.~..Qf.Jhe.. Fi nal.D1l.Cl:e..e. in..Jllv.Qr.c.lL.....f.er.. 8e t t] ame.IlLagz:8.ament....da.t.ed.____._.
'10/17/89......15/ Clarence _c.. MorrisD.n.L.._.___
.TA" 1?, 1990 - Modi.:f.i.catw/1 nf .C;'1 PPO-r-LOr.der.,....f:iled. f)pfendanL.ta pAy thEL-_
-.--.wm.-of $190 Pir w6uk for..t:.h~ppor.Lo.f.h;i..S-Childr-Marce.l,-affllctive.ll./-l.l-/.89~
-.P1us...$.2.0.. pE' r weeLon-axreax.a_... ,-De.fe.ndaIlL.t.o. c ontinue-.medi.caLin.s.urlll1 "', f 0.1::__
....Mar.c.e.L_ 0.. 1.. t.a.JliLe....--E.ar...Jli'laLc.fLDecr.ae..dated 1? 16/.8.9. I !l/.-G.lar.en.c.e~___... ...__
..------.--
...... MOJ;.tCi.s.on....L.-.___,__
... firBtmi~~.l:egular. paymel!tl:l~___._
MUY:..l.5 ,J..29.lL~ -D.e.fe.ndan.L.fQund-in..cout.elUllt. 30.-dayjail...a.enteru:..e...Buspe.nded.uIltiL
--........----.-..--.---.. .._h,..~_.___...._.___....__
.----.------...--
-- .., J&rt i '10t99o"a"-2f B~~rF1i:~AR~' ~~NG'E~ T'g~;.~;;;;;;;Jl"X~"5~ / j ___j~-:-__
L Nov.;b.! . 2 ,1990_ -P"iti~; To I,",;~;-;'~;~"'~"'" ~~~, (b~:;;"ri;~;;n
l.~.~brUarY_,~~~9_1_ -A'&'r.~ed MOdHi:atian~.~f SUPRer_~__Ord~:!_ fi~e~_..E.~~.~.ant
/. _to pa~._$240 ._09. per_~~'h fa:~x-wife.. an~~~~ld_.Mar:.el. ef~=~_t.ive Fe~. IS. 1991.
Lp1us $10. OOyer' w~.:_~ on ar:.~~=~~fendant .~~ pr~~id~ proof ef life...
~ insurance caverage quarterly to. plaintiff by statement. Defendant to.
--. --------. ----------- -___.h_~___. 'h, _
.maintain___~~insurance cavera~..:~ h.1:.~ life in_ the~~.~.unt a~J100,OOO:OO
f~!_~h. the ct:i.1d as _irrevac~b1e beneL~ci_~r:..h.~:~rr_ea~s <It $~~997 .33....
: /s/ Clarence C. Marrisen, J. W,lo/fptOfl?
~septe~~er 4, 1~~2- -;;~~~~-~-Ta'~ecrease ~~ppert;~'der, ~~~ed. .--'90." to -
.SEP fS'1992 . - ORDER OF ATTACHMENT or" WAnES. FiLED--- ..----- /OO.OIl- -.-_
SEP 231992 -_ORD'R DFATTACHMENT OF WAG,srliED :;;., _/ ~ _=_
v . ...2...----19-92 "--Moc:l.i-fi{:-il-t-Wn"Of_.SujT~o r t-.Ot>tI-e-r,f He:!,-o bl f-gor--t e-p ay--the.' sunruf---
L $l5D, 00 po< .... f~-'-"-'H. .", 'hUd,_."" II.L. . f ~917192 '!''",->>O ,pO__
. P'~_.""--,,"--""".":-"bligf ~ '- m!"'-'~I -'''''_.n'' _ f" '_hgd .. P,.v,.~_
-... ::;:::i:Y;: ~. o::::,~~: :~:: B~~~;;~;~ ,: ..~~ ::::::~:/ ;;;:o~:;~::n~;;~,;::o:h::;:'
. --'-'-"- '-.---.. -. . - . "--.-. --...'....-...--..'..---...-.....--.---.....---.
irrevecable beneficiary. Obligor to provide praof af life insurance nuarterlv to.
---, .....-.....--- ....----.. '-- ., -...--.-.... ...._---_.._.__....._~._. . ..,-----.
Obligee by statement./sl Turgeon,j
'* 'NOV 251992. -~RDER Or .ATTACHMENt Of wNici-.F.iCEO----- -..
-'-NO\if51992---oRDER o( ^tTAtHMENT"W-WAl'.cs-TU.~- o-f)~--""'--_.'. ... ..___
Nov lR lOO? - I\t~n...."l ...1',,1 " .. , 11 '"'11' 1.
.--__h.__, . .__."...__....".~___..___
----..._--...._~.....-
. L.aWEtE" OAt /-l/J/Jefle
December 17, ,1992 - Obligor is directed to pay $50 per week alimony, $80 p
~week child oupport, plus $15 per week on arrears. Obligor agrees he w be
responsible to pay St. Stephen's tuition bill from 1991 as soon a~ he is
financially able. Obligor shall continue to carry life insurance and medical
insurance covI.ll7agn with the child liB the benefici.ary as set forth under the
prior agreement and court orders. The parties shall share any extraordinary
uninsured mediad OXjlonBOfl. The offoctlve date of thh Order is Sept. 4, 1992.
December 17, 1992 - Order of Court, filed.
JAN 05 1993 CJIWLI< W 1\IIIIG~'"II.I~1 LJ, \\'.:'\.t.~II\"ll.jWd.l
ir,tltA.'\W ,QS) OUOtH Of A IT ACHMliNT 01 WN,r~~ I\MflmFD (-1./
I: 051993 . ORDER OF ~TT^CHMCNT Of WMJES FILED
o 5 1993 OROER Of ATTACHMfNT Of WAGrS FILED - I,
March 22, 1993 . Order, filod. We find the defendant in contempt .of court and
sentence him to confinement in the Dauphin County Prison for not less than
30 days nor more than 6 months. The defendant shall report to the prison on
Monday MlIrch 29, 1993 at 9:00 a.m. He is eligible for work release.
/s/ Warren G. Morgan, P.J.
March 29, 1993- Order, field. Execution of our Order dated March 22, 1993
is hereby uUBpended until further order of this Court. /s/ Warren G. Morgan,
fl!""! .(: \1 J'll'" lJW:A Of ATTACHMEN'I Of WAL;r.8 t'1L'EO
AFR 2'\~L ~ ('IF' ~TT^CMMtWT Of WMJES F'tttD
APR 2 OROE" Of ~TTACmiIENT Of Ww.s RLED ~ -I.
APR 3 OOOER Of ~TT"'CHMENT Of WADF.S FlLED
APR 26 1993 OftDER OF ATTACHMENT Of W~ F1t'ED OY) - I.
June 23, 1993 - Pet:l.tion to Increase S,upport Order, filed.
July 27, 1993 - Order, filed. Petition of obligee for a modification of order il
denied. Obligor to be fully responsible for medical bill of $157.00 incurred for
OECrrg-l199t ~~ot~o(~ JAIl ACHMENT OF 'fU>J.;I);. {'u,m
FEB 281994 ORDER OF ATTACHMENT OF WAGES FILED (-3)
FEB 2 8 1994 ORDER OF ATTACHMENT OF WAGES FILED
MAY 2 5 1~~4 ORDE.R OF ATTACHMENT OF WAGES FIL~O
MAY 2 !i 1994 ORDEn or ATTACHMENT OF WMr::5 Ffl.t'D (-.3./
August 18,1994 - Court f!llgs obligor in contempt for letting the life
_. - _....~---
insurance lapse and directs the obligor to provide proof to the obligee
within 30 days of the reinstatement of the life insurance in the amount
and in the benefit ascribed in previous order. If obligor fails,to comply, he
will be rescheduled for contempt court, the court will impose sentence at
that time. The obligor is directed to pay for the life insurance benefits
every six months. Court directs obligor to continue to pay the sum of
$80 per week, plus $15 per week on the arrears. The dash 3 account will
continue to stay at $50 per week. This case is directed to be transferred to
Cumberland County after 30 days. Court further directs the obligor to pay
$190 which is one half of the uninsured medical expenses, within 60 days.
I
Obligor is to notify the obligee immediately upon medical insuran~e being
provided for c~ld.
AUlust 18, 1994.- Order of court, filed./s/Hoover,j
AUl:i 11199~ .DRDER Of ATTACHMENT OF WAGES FILED --3
AUG 11 '19911 ORDl:.H 01- A Tl ACriMl:.N I Ot- W/\W:.S FILE!:)
September 30, 1994 - Court directs Obligor to make payment on the life
4n~urance policy on October 9th, 1994, in the amount of $49 for the monthly'
. installment. The Court further directs that on Nov. 9th, 1994 the Obligor
make payment for six montha on the life insurance policy and to pay in
inbrements of six months thereafter. Obligor is further directed to continue
to follow the Court's order of August 18th, 1994.
Septmber 30,1994 - Order of Court, filed./s/Hoover,j
November 9, 1994 - Order, filed. The obligor's portion of this order is
transferred to Lancaster County where he is now residing at 30G W. Sunset Ave,
Ephrata PA 17522. Payments are to be sent to obligee per PACSES. Order is
$80.00 per week for child support plus $15.00 on the arrears of $3,413.90
and $50.00 per week for alimony with arrears of $4,320.98 owed as of 11/9/94.
Obligor is ordered to pay Life Insurance on child in increments of 6 months.
Upon notification of acceptance of transfer Dauphin County will close their
case. /s/ Todd Hoover, J.
Feb. 10, 1995 - Lancaster County refused this transfer., of 11/9/94.
February 8,1995- Order, 'filed. Per.PA Rule 1910.8 "Transfer Of Action"
Note (b) the obligors portion of the above case is hereby transferred to
Lancaster County where he resides at 306 W. Sunset Ave., Ephrata, PA 17522,
Obligee resides in Cumberland County at 3002 Market St. #1, CRmp HIll PA
17011. Per Subdivision (b) 23 PA.C.S. 4352(b) as part of Act 66 Dauphin
County has transferred this case to Lancaster County to modify, amend or
dissolve as fully and completely as if it had originally been entered in said
county. Order is $80.00 per week for child support plus $15.00 on the arrears
of $3,710.88 as of 2/15/95 and $50.00 per week for alimony with arrears of
$4,501.70 as of 2/15/95. Obligor is ordered to continue to pay on his Life
Insurance in increments of six months. Per DRS Regulatory Memo 1994-48
Lancaster County is to assume ownership of this case and sent payments
directly to the obligee. Upon notification of acceptance of transfer,
Dauphin County will close their case. /s/ Todd Hoover, J.
February 22, 1995- Credit of $1370.00 given for direct payments to plaintiff
(Wired $ to her 1~nk account 12/20/94 of $650.00 and 2/31/95 for $720.00).
March 17, 1995 - Modification of Support Order, filed. Obligor on the above
case is hereby directed to continue to pay $80.00 per week for support of
one child, Marcelle Lee, plus $15.00 per week on the arrears.
. The alimony payments, our -3 account, is hereby terminated effective
Dec~mb~~ 6, 1994, with arrears to stand payable at $50.00 per week until
paid in full..
The Order of 9/30/94 is modified to delete the stipulation of obligor to
maintain the life insurance policy.
The case is Ordered transferred to Lancaster County where the obligor
now resides. Upoo"notification of acceptanee of transfer, Dauphin County will
close their inter'e'st 'in this case. Is IHoover, j
October 6, 1995 - Order, filed. Case is transferred to Cumberland County
. where the obligee resides. The obligor resides in Cumberland Maryland and
Order is to be registored to the State of Maryland by the obligee.: Order is
$80.00 per week for one child plus $15.00 on the arrears of $4,980.88 as of
10/4/95 owed to the obligee and arrears of $3,951.70 owed on -3 account for
alimony payable at $50.00 per week on an arrearage only basis. Upon
notification of acceptance of transfer, Dauphin County will close their case.
/s/ Todd Hoover, J.
" ."'-.....,r-~.. ~-. .
-_. -- .-..-----~ ,_ .... '.'" --~.-.' _.,__._ __._.~_"'.w n__.
(Page 3)
GERNILEE C. GRAMLING
-- - ..... _.,. .~~_'__h~
..~~._._.._--....,
vs
MARK W. GRAMLING
*'16.0. ~1LJ9..88..
October 6, 1995- LancllBter County will not accept t.ransfer. per. plaint:/,ff's
<0.__....._,.. . It
roqllest.. . j .. ""H'.._..
.November 13,1995 - GllmberlandCqunty Ilcceptedtr,lInllfer of obligoe'!!.p.Q!.'t:LQ.U.....
only...Upon 1I0tificlItlonof..registrllt,ion-we..will clolle our clise.
AlJO 16J996 ORDER OF ~TTACHMENTOF WAGES Fa:rD _ ..
AlIO 1!J9~..,_..OfI)EROF"n:ACJi"'E:r~LQf WAGES..fa;EO....(.r:n..:,..3 '~_~...__'_H_'__
August 28, 19~6_~_?!:~1ll:" f:l1~d. Case is suspended andal.l_!lEr.e_I!E~~c~nC:f!.lled.
. .._.In Dauph.l.XLC.Q\.Iniy. eLf ec t i va .. thia.date.p.e.t'...ininrmaHon .received.Leom--Cumberland.
_..9())l.!!.~Y_,_.~~.e.gh!l~, _,P~~J.y ._r_e.8 i cl~~._.1!LJ>f!IJPhiJL, C.9.unt.y_and_CUmhe.tiand...C.llunty. ,has....___
._._r.~g~~te red .J.h..e..~~~~r A~-l~M~~+ ~ e~H~ft11Jb!llliL.-.L!iLllihauLA~e.wis-I-JL=~~====
_._._~UG__ 2JJ9ll8..,..___.._~..__.___..__......._.. _..._. .'.nh_,.....__~_n_....., ,.. ........_____....,
.ns._ElPt~E1l>eF-.1.QL!2.2.L::_()r.:g.e_r_,._gjled'- AND_NOW. ..th;f,L4tl1 day of Septembe.r...._l9.91l,--11PllD.
, .'0 ons ideT.'at.-lon-of-t-he-P-l-a i-nt-lf-f.l..s-pe-H-t-i.en-fOf'-eene-emp t.,-- .t-he-0ourt-cH:reC"~s----
as follows:
.._._....,.....~._-- _m'_ .._..__.____~__u__.~__...__..... .__.___.__.__.._.__~.
.._m~.~nY'_ violatio.n for f~~~nl.~.r.~ to pay child stlpp()~r_t_!lh.~_ll be dealt w.!.th
..... throul!h the .1U>.1Lt'.QnU..Ate Domestic Relationn Offi.Cp.__hBving..jl1ri ~d:/ C'tiOlLO.v.eJ:--._
_ H",,_..~_~_e Defend~_I}_~._.____.________.~_"__H
...---.2.......-The. Court..dh'ects.-t;.hat-"a.'Rule to Show"Cause-.be-"i:s"Sueu-a's Lv ",hY-4:rre-
---~~ end .8.T1 t_s~_o ul,..!..no !:.. be h e lDE....c:g!1~(!OlPt _f<!L vi 0 I a t ion 0 f ~!lLPt'.QY.i 5 i on
relating to life j.,nsur~nce in the _~~orce agreement. The Defendant shall.
.__..___!~~ve.._lO days after being serv~~..w~th this Rul~~ to respon~_B~ to why:~__
.. -...._---1J.holJl d no t. ba..held..uLcontempt./ f!./Ho over..,-J---_____on_...
...---~.....---- .----.--~-. ..----------________.____u__
.------.--,--. .-------.--- ....---.
..... .._'---_..__...~---_.....__..._-_._.__..._- .."....-- .-.-..----...-.,..-----..--. .
___.....n _..,_...._..._.~.__._..._
:a--------.-.-------...--
... -~- . ",,' -~-~-.~=--... -- -~rs~' ~~~~.~f:; ;~e t~~r:~i;~:fra
____.n_~n...__. ..__~}~ed~~ ~.__
.
.... ......... - .*,.".....---~__,_._ .....m..___~_~__..___.___.__..._._+_.....,'
\----- -
.~~- ,r- :-U( . .
.l9~"I" foe -:;; :~~; - h"'~;~Q;Z~t:: ~; ;;~~;' ~'""
.fuQintment .QU1!!.!_ter..J:.~_hea~&~~~iQ~Lfor.!!1 in P.lff-Gounterc;laim
U~ffidayit. /s/ Jonn ~PowlinR. J,~ Order, filed __
ditCH- .11t-./j&'t- L.a.)1 So J, AooiJl. AA'"-b II.JT~~ASTe.-r? "______
une.-.2..-.l.2.BL-==--LBule is issued upon. both parties to show cause \~hy Donald B.
J.!Qy.t._El!<.L._...!!)lould not be !\llowed. to withdra~as~llnsel for Plaintiff. Rule
U!!!!r!!lIble__l days from service. s/ John C. Dowlinl\, judge See Order, filed.
DiB ribution 6/12/89
--L(-hn-AJ~"", ~ /?J....:/ g.( tJd ~..IL~ ~. _-=--=-
28 _1989-.Upol1 pres~nl!lion & considerat.ion of the attached Motion
'I) that Donald Ih.Jiovt. Eso.. be permitted it er b is
8 011 scl for Gernilee C. Gramlin S Sebastian D. Nata e J. See Order filed
'-a.L',p~- ~~. _1 f/':~ .. ~ ./~./:
~'/f://.'/"- q"f!"...6& -,7 A"'.., O~, ~'-1'~~
"., ~ (I
'. / -. Jf
November 16, 1989 - Upon presentation and considel"ation of the within Petition brou ht b
attorne Lori K. Serratelli, Esquire, it is Ordered that the MastershiD of Lo4~~
revoked. ~ Clarence C. Morrison, Judge. See Order, filed.
~6L - Please wi thdraw PUts. clailf6
costs, see praecipe filed.
27 1989 = Matrimonial Sett~t Agreement, filed.
f.~
_ Dtl.!.!_L
drawn
conside.ation hereb ordered
and Decreed that a hearing be held on th~nd Day of August, 1990, in Courtroom 1,
at 2:30 o'clock P.M., Dauphin County Courthouse, Harrisbur~, Pennsylvania. The
petitioner shall serve a copy hereof upon respondent. /S/ Warren G. Morgan, ,Judge
'See Order filed.
brought gainst you alleging you
You must appear on the 2nd d~ of
Januar 1991, at 11:00 a.m. in Court Roo~ #1 Dau hin Count Court of Common Pleas
Dau hin County C~thouse, Front and Market.Streetsl Harrisburg, Pennsylvania. IF
YO.!!. DO NOT APPEA~ IN PERSON, TUE COURT .!:IAX--U>SUE A WARRANT FOR YOUR ARREST. If the
court finds that you have willfully failed to comply with its order, you may be
found to be in contempt of co~ and committed to jail, fined or both. /S/ Warren
G. ~Ioraan Jud e. See Order filed.
J-
February 2, 1993 - The Petit on for Contempt of ~t filed by
hereby scheduled fO~~ring on March 10, 1993 at 10:00 a.m. in
Dauphin COU~ Courthouse, Front and Market Sreets, HarriSburg,
Plaintiff shall serve notice on the pal"tie~ereto. /S/ Warren
See Order Filed. Copies mailed 2/3/93.
-- -
MQ./lc.h 22 799.Y - The. COUltt 6.i,nd6 the. de6endant .{n c.ontempt 06 C.OUltt and 6e.ntt/lc.u I
- u. " 'o,j......, ., .., ~u, C"",' P,.,,, -i" ,,' "" .." ''4'' d." ."~I
mOlte. thaa 6.t.~ mOllth6. The de.6endant 6haii Itepoltt to the PIt.{6011 011 Mondav, Ma.c.h II
29 7993 a-t 9:00 ~M. He..t.6 e.l.{g.{bh 6011. 1II0ltk Hieue. /6/ 4/Q./llttn 0 Molt.94n, J/I,d,-. 'I
See. mER 6aed cop.t.U ,"aaed 3/26/93 . . .
e P aintiff is
Courtroom No.1,
Pennsylvania.
G. Morgan, P.J.
...~._~._--..---_..,_.__._".,
--
L....J
I
I
k
I':!
-~*UnLL1.9aL__~_...GRAMLING... VS .....,GRAMLINL.._..,._.__.. ... ........-. ..1 :
Ch 29 , --19~L,:,__ Execu t i on...l1.L..2.uL.QnhtLq.!l.tfJJLJta.r.(l!L~~LJ..~9L.Lshe r.IilJ~Y.m~ ~fJP_end e~.._..J
D.t.iLLutlhe.r.....Or.der.uQL.this..cQurt.___LSL.Wl!.rre.n..GLMl,1J:&!lJ1.J'..LJJ!dge, _ . See. ..... .___
rde.r.....1Ued..._...__.._Coples..Dh.t.p.Y PrQtI:\.Y.__JI2~L93. .... ,.. .
. :_'U..,L!'-lJ.",...~ -~.. .j.,{..y. .,d.-..u/...,'-.r~~ ._ "h7.. r.~' ..........:
'l.f...'J._.7.~~~ ~-n---~;2,mm7 ...~ .... '.m '~1= ru 7 ~/
.....LI,J.'l.t(.._.~~ i' ~ . ,;U~'_:?!..''T'' ~ r-C _. ,~.fo.. 7 .,-.Art' .
, e.p.t....!f.,.._1.i9.6':'..Upon..cons1deratiollDLthePlaint1ff's.petition for contempt, t.he
.CQ\lrt..dir.ec.ts.IlILfQUOWBIL Any violaUonforf8ilure..to pay child support.
_Sh41.1J.Qt1...d.!!!!lLwllli...th rQu&hthtLOppropr iote..Dome II t.1c..Rela.U0l1SmOf f ice havi ng._1
jJj:..lllC;\J.Jl..ti on ove r ...the ~.Qei.!!ml!!llh-l.....__,[he..J&.Yrr..!tir.e!<.tJL.t.hA.t...A..Ru.le.....tQ...shQw. GlIlI s.~ .__;
J?!Li.!l~J!~L!.!Lt.Q....\LQ.Y....!.\l~_P~t~.nq!\lJ.t_I!.b.Q\J11!_IlQ.Ll;>.iLh9..l.iL1QJ<.tmilmRL.f.Q.r .viola t i 0 n.__-
,--oJt..he.pr,<>Y.i:.I~Ao!!rfJJat~n&Jo.lifeJl1SUrllnc;euJl1qJI1E!di"'Qrceo agreement. The ./
.. D~fe.':l~a!lt. shalLha"'l!.J.(UI.~ys_IlH_et; ..~l!i.l1gu~.l!.r.Y_tc.~ wit.h..thi.~_.R.ll1..!'Lt.Cl.. r.e.spond as to..:
. n.WhLI:t.L!!.hQ\!Lc!....m>..L.l>_e..h.~tc!...JJ:u,C1l!.~e.mpt.JsLT9dd_A,_.HoQv.e!:', ...J ..See . Order Fi led. .
-CQp.h!LM!!lliL9L5L9J:IL...______._.___.__.__...._r::-_____..__..__....._. _..,.. . '..__
ctober 7, 1996 - Upon consideration of the Court s Order of S~ptember 4, 1996 and
t,e. B:ttache,i"Exhib[i:lIAIl-fnclicai:.J:ng-i:iiiii:i:he.iHe iiisl.lrance-'poiicy(s' paicl-!n-fllii
'he Court shall riot schedule a t1aarTng-ontiiT~.-matTer.unfes9 eithe-r'-pa.rty'requests
he.-same.wi-t-hIntenUoT days"ofi:heclate.of"i:iiIsuorde.rancl-sei:.s.lortti the' reasons
or-the reques to /STTodrA~-Hoo;;er:;--Judg;.--'--See..Or.:(rer..Rfe(r: n .Co.piEHl Dls t
----.-.,.~ --------~---- --..... - -..-.-....-. ..-.-..-....----..-.......-..-... - ---------------------~----._--..__._-- .-...-.----.-,..--.-.......---
0/8/96.
. .!.L-;;',~/~~.fL~~f~)~ ~.:...7.~~.~Z-~.''''7.-''.~:ZZ.'---~~~~_:==-=~_-_n. .
Oa..t.ll be L1.~-,_t9 9 6 -=-JJ'p'()rLCO!l~ i de.rl!t ton .s>.LP ll!.t!l.1tfJ.~L~.e...q ue..!!.t_f.o. "'--'LOg!! rJl.l&.. the Ggur.t
I
li:I.IL.8.ch.edulIL./L.h.e ar in g..Bole 1 y....on..t.hLill.B.uLo.L..D.ef.eru:lan~.s....co.mplj a n ce._wi.t.1t the '..... ,-1
1v.orcILagreemenLas..it_relates _to.the..life..ins.urance_pDlicy./s/ Todd A. Hoover,
..J\ld&e...._..Bee...ORDER.fll e d.._Copi e ILma ile.d..1O.~6.::9.6_. ......---.--_.__..___n..... . ........... ._.
AprJJ.14..J997:.l,IPQJLconstc!er;ation oL..the.J.'laintiff's request for II hearIng and
.d~l1.dan.t~IL~Q.Ilij).lb.nc.e.h..wUh_the.d iy.or.ce....agr.aem.e.n.t..JlLiLrelat.e.s._t.o._t.,he..l l. f e in'"
I!I.Ung,ILPJJ.l.i.cy__ the reQ~.LII'Ul...he....dismisfled i f ....the.....C.o.ur.Ldoes..noL.hear~J:rom
F-hintif.Lw.i.t.hin.._ten. ClO)...days._o Lilie.da.t..lLOL._thiLor.der..,.JsL.T.odd.. A..._Hoove r " Judge..,
lLfiled, Co.pies maile.d...Ji.=-l4-97. .CoP)! to DR 4-..1..W7. _....._----1
I1BY..J9--1-.J.9.9.L-,_l,J.P.o..!1._C;:.Q'1~Jcje_t:.II.U.Q!!_.<>Lt...h.!U~ la.~!!.t i il~..1..a i 1:.1,lre to. re ~P<>.n~_..to _the
, er of Ap,r1.Ll.!!....._199z.. the PlaintifC~_t.eQues..L for_L/:t.~arin..&.JJ!..h.erebL__~
ss.ED.~-Ls/ Todd A. Hoover~.-JJ.ld&1!-'-.....s.ll_QRDElLf.i.lf!cj.L~~ieLm!!il,~d__~.:.,I9.-97 '_._
-----..--...-...- ...._~---- ~_.
--_._---~_._.~----._-'--...~----_._-
-------..~._--~-~-._-~.____._--.---..-m
I ~ ~~;;i;~~~~;~-'>~_.. .~...:.~
true and correct co of the .rlglnel
ftlld. - --- __'_un
-_._-~-_.__.._~,------,.._----~--_.
--~.-_._~_._._-~-..._--.------~_.._--_._--
L....-_m__.__.__~_
L
L__.
I
r'-'....._... ..._m......__._......__...___.__........... ,...- ...-.....
p
--~~_..--_.._._-- .-.. ~---
-_._-~------~._~---_._--._....._._-~-_.._. .'.
.. .... --.... .-...---...--'---."., .
...._-_._-_.~.__._-~._-_.__.__.~--------~----_... .._-~._...,--_._...._..'.
..._._--._-_.__.~-------'---~~--~~-_.~_._-_._--_._-----:._._-,.-:-.--.-----,-.,.
~----..-------~.~...-..----.........._-....~..-~...--. -.--.~~~_..._~.n....._....._.._._
_.__ ._..... ... ..~....n_..._.___.__.__..~~.__._...__.-__.
.-.-..--_._._...--.~.__._--~_._--~----..-...._-.._~._.....,._,-._----,.--_.~... ---.-.-...;.-.----.-...-.--.---.-.---.-..- ,.
-..--........-.....~-::!"-~.
. ,,,,. I
. -
...1' hRE,
., ....
.
. PLAIN11,,,. .
I ,~I'JT
q.f..{
J.iON-WELF t,RE
, Obligee
.
.
IN 'l'HE COURT 01' COMMON PI.EAS
DMJPHIN COUNTY, PENNSYLVANIA
VB.:
/}1 G Obligor
11//J/lJc.. . RJM'JI./AJ(, _
.
.
TO THE
NO. 1(;0 Oft 8 t) . ~
/.( ~;I:J ~y)
PETI'I'ION TO lIllenllt,all/DECREASE) SUPPORT ORDER I" .J' .\ ~
- 10 q:t1V
HONORABLE, THE JUDGES OF' 'l'HE SAID coun'!': . t,.u'J '
:... respe.ctfully tr
represents:
1. That obligee is .c~ll>:ftJ,..)II,.,~q;'Grl/\.tV\II")('" ~
an individual residing at 110~ ~~j)/I(% nv~. (ArYl\) U~ )70 II
2. Tha t obligor is ~( G ~ {'M'\l J.l )( / _-'-
an individual residing at ~.rbm'tun1 C-l-UIU 1+ ~j~J;9!J.~fI'f'} I f11 }?n.2..
3. That there was/~. L child/chilli..lln born
of the parties namely, ....:!J\i'1f?U:t.l (~fl.I'YY'rI, II.. )C,
~
.
That on
-
an order was entered by
this Honorable Court requiring the obli.gor to pay, _
for the support of his
/J()
t/ ~ ~ "'1 /' /; e; ...... "f
'" (
minor child/children.
j'{}.J 1- /
"j .
I
5. Reason for T~.IRSQ/Oecrease:
-
Wherefore,
--
respectfully requests that
your Honorable Court ;-
7tJ."" C; t..J('/(
f"'-"t4J....~... C ~
r t, t vI' .... C! ^' ,,, J-",
~/decrease the support order to
C/f/../<'.. 11)(/(.1 r- ~
~7"
~ - // ~
~ 1<. 4;A of '"3""'
-
OOM. fU:L....U
,.
1
2
3
4
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GERNILEE GRAMLING
IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
VS
MARl< GRAMLING
No. 1105 S 1987
TRANSCRIPT OF PROCEEDINGS
Before: THE HONORABLE WARREN G. MORGAN, P.J.
Date: March 22, 1993
Place: Courtroom No. 1
Dauphin County Courthouse
Harrisburg, pennsylvania
APPEI\RANcES:
None
t='f..h;~,'f b
f.'"
((:(Q)~V
DAUPHIN COUNTY COURT REPORTERS
f..JLo C E E D Lt.'I....iLE.
Monday, March ~2, 1993
THE COURT: Mr. Gramling, I reviewed your file and
franklYr I am of the opinion and I reviewed the Domestic
Relations file, that you are in Contempt of this Court and We
are going to sentenoe you to confinement in the Dauphin
County Prison for not less than thirty days nor more than six
months.
You will be eligible for work release. You get in
touch with them regarding work release.
THE DEFENDANT: Your Honor, may I say some things
first.
THE COURT: Yes.
'I'HE DEFENDANT: Some of t.he things that were
discussed in this Court last week were--maybe some of the
facts aren't as clear as they were stated. There was a
comment made that I had quit my job last summer and that is
not true. It was a very devastating thing to me that r was
asked to resign out of the clear blue sky.
I don't know how, I fell down the steps, was
injured severely which impeded me from getting work. I am
trying hard. I had four interv iews. I have an interview
tomorrow morning. You know, I just don't know--
THE COURT: Well, you have an interview tomorrow
--
DAUPHIN COUNTY COURT REPORTERS
2
GERNILEE CARTER GRAMLING,
Plulntiff
: IN TIlE COURT ()II COMMON I'LEA'S OF
: CUMBERI.AND COlJNTY. PENNSYL VANIA
v.
: CIVIL ACTION .. LA W
MARK W. GRAMLING,
Defendant
: No. 98.2015 CIVIL TERM
IN RE: ADJUDICATION
BEFORE OLER, ,J.
OPINION Hnd ORDER OF COURT
OLER, J., April 21, 1999.
This contract action presents the issue of whether damages based upon a child support
figure in a 1989 marital settlement agreement are recoverable trom the obligor, where" inter
alia, (I) the figure was designated liS a modification of an existing support order, (2) the
figure was described as a resolution of an IIppeal from thc support ordcr, llnd (3) tor ycars
thcrcaftcr the parties litigated the obligor's support obligation in support courts. A nonjury
trial in the matter was held on March 4,1999.
Briefs have been submitted by the parties. For the reasons stated in this opinion, the
court will tind in favor ofthc Defendant obligor.
ElliDlliQ.S....QF FACT
Plaintiff is Gernilce Carter Gramling, an adult individual residing lit III South 24th
Street, Camp Hill, Pennsylvania. Defendant is Mark Wade Gramling, an adult individlJal
residing at 201 Modena Drive, Cary, North Carolina. The parties are the parents of a
fourteen.year.old daughter, Marcel L. Gramling, whose date of birth is Febntary 4,1985.
The parties were married on November 27, 1982. They separated in November of
1985, and were divorced on Decembcr 6, 1989.
The marital settlement agreement which is the su~ject of this case was entered into
on October 17, 1989.1 Both pllrtics wcrc rCpl'cscntcd by counsclllccording to thc IIgrccllIcnt. 2
With respect to child support, thc lIgrccmcnt (ll'Ovidcd liS fhllows:
Husband lIgrces to modi(y thc currcnt Ordcr in ()lIuphin
County Domestic Rclutions, 460 D.R. 1911K of $140 (lcr wcck
for the support of Murccl L. Gramling to pay $190 per wcek
.ctlbctive Septcmbcr 25, 1989, und to continuc to puy liS spouslll
support $50 per wcck until the issullncc of thc Final Decree in
Divorce. Wife hcreby agrces to dismiss with prcjudice the
appeal of the Januury 17, 1989 Ordcr ofJudge Morrison pending
in the Superior Court.
Husbund ugrees to the voluntury ultuchmcnt of his wages
and u wuge uttachment is currently in cffect through Dauphin
County Domestic Relations.
Further, Husbund shall continue to cover Murcel as II
dependent on his health insurance policy for as long as Murcel
is eligible to be claimed as a dependent.l
Another paragraph of the agrecment, entitled "Alimony," provided as follows:
Husbund ugrees to pay the sum of $50 per wcek as
alimony upon the issuunce of the Finul Decree in Divorce and
ending five (5) years from the date of the Decree. The parties
agree that the amount of the order may be modified based upon
a change in the parties' respective incomes, but thut the term of
years shall not exceed five years. Husband's obligation shall
cease in thc event Wife rcmarrics or cohabits with a member of
the opposite sex.4
The final paragraph of the agreement, entitled "Entry As Part of Decree," provided
that the agreement would survive any action for divorce, that the divorce decree would not
I Plaintiffs Exhibit 1 ( divorce decree and murital settlement agreement).
2 Id., paragraph 8.
lid.. paragraph I.
4 Id., paragraph 2.
2
affect 01' modify thc finunclul terms of the ugl'ecll1cnt. and that thc ugrcement would bc
incorporated but not Illcrg'ld into the divorce decrec.s This paragraph also included t/u1se
sentences:
It is specifically agrced thnt the fivc-year terlll of thc alimony
provision [contnined in the agreemcnt] is non-modifiable. This
Agreement shall be enforccablc under thc Divorce Codc of
1980, us amended. (,
The parties' divorce decree, entcred about two months after the marital settlement
agreement was eXecuted, contnined this provision regarding the agreement:
... [T]he Matrimonial Settlement Agrcemcnt executed by the
parties on Octobcr 17, 1989 is incorporated herein and the
parties are ordercd to comply with the terms of said Agreement.?
Since the execution of the marital scttlement agreemcnt and divorce in 1989, ,the
parties have litigated Defendant's child support obligation in support courts in Maryland and
Pennsylvania. However, on April 13, 1998, Plaintiff commenced the instant contract action
against Defendant, seeking to recover $20,180.00 plus interest from Defendant for failing
over the years to pay child support in accordance with thc figure provided in the 1989 marital
settlement agreement. R
At the nonjury trial, thc parties differcd in their testimony as to whether the child
support figurc in thc agreement was intcndcd to be modifiable by the courts.9 At the
conclusion ofthc trial, the court took the matter under advisement and requested that briefs
5 ld., paragraph 10.
(,ld.
? Plaintiffs Exhibit 1 (divorce decree and marital settlement agreement).
R At trial, the principal amount claimed by Plaintlffwas stipulated to be
$32,200.00. N.T. 20.
9 See N.T. 22-23, 33.
3
be submitted In support of the parties' respective positions. On the basis of all of the
evidence prescnted, thc court has ,~oncludcd as a filctual mattcr !lUlt thc partlcs intended that
the child support figure bc subject to modification.
12lS.C11SSION
With respect to the interpretation of contracts, it has been suid that "[t]he primary
object In the interpretation of any writing is to uscertain and effectuate the intent of the
parties." Warren v. Greenfield. 407 I'a. Supcr. 600, 607,595 A.2d 1308, 1312 (1991)
(citation omitted). "[A] writttm contmct must be construed as a whole and the parties'
intentions must be uscertained from the entire instrument ...." Harrity v. Medical College
of Pennsylvania Hospital. 439 Pa. Super. 10, 21, 653 A.2d 5, 10 (1994) (emphasis in
original).
One of the most helpful factors in determining the intent of parties to a contract can
be the course of conduct of the parties subsequent to the contract. Sun Company. Inc. v.
Pennsylvania Turnpike Commission. 708 A.2d 875 (I'a. Super. Ct. 1998).
With respect to the credibility of witnesses. the rule applicable to cases whcre a court
is acting as the trier of fact is that "the trial court... is the sole determiner of the credibility
of witnesses. The fact-finder is free to believe all, purt, or none ofthe evidence ...." McClain
v. McClain. 693 A.2d 1355, 1360 (Pa. Super. Ct. 1997) (citations omitted).
The Divorce Code which was in effect at the time of the parties' agreement and
divorce in 1989 contained the following section relating to marital agreements:
Section 401.1. Effect of agrccment between partics.
(a) A party to an agrecmcnt regarding mutters within the
jurisdiction of the court under this act, whether or not the
agreement has been merged or incorporated into the decrcc, may
utilizc a rcmedy or sanction set forth in this act to cnforcc the
agreement to the same extent as though the agreement had been
an order of the COlllt except as provided to the contrary in the¬agreement.
4
(b) A provision of an agreementl'ewmUng child support,
visitation 01' custOl(V shall he sll~iect to modification hy the
coul'l upon a showing of changed cil'Slllnstances,
(c) In the absence ofa specific provision to the contrllry
IIppellring in the agreement, a provision regllrding the
disposition of existing property rights lInd interests bctween the
parties, IIlimony, alimony pendcnte lite, counsel fces or expenscs
shall not be subject to modification by thc court. 10
In the prescnt Cllse, a number of fllctors hllVc Icd the court in its capacity as trier of
fact to conclude that thc parties intcndcd that the child support figurc contained in the marital
settlement agreement would bc modifiablc by the courts upon changed circumstances. First,
by its terms the child support figure purported to affect only an existing support ordcr and
an appeal therefrom.
Sccond, the partics' awareness ofthc technique of precluding modification by exprcss
language was cvidenced in another provision of the contract; this technique was not uscd in
conncction with Defendant's child support figurc. Third, the agrccment cvidcnccd thc
partics' familiarity with the practice of modifications of contractual support obligations by
support courts. I I
Fourth, the divorcc decrcc obtained by thc parties incorporatcd the parties' marital
scttlemcnt agreement in thc decrcc without excluding its merger. 12 Fifth, the parties for years
proceeded on the assumption that Dcfendant's child support obligation was su~icct to judicial
10 Act of February 12, 1988, P.L. 66, ~ 2, 23 P.S. ~ 401.1 (cmphasis added).
11 This familiarity is to bc inferred from the cmploymcnt oflanguagc in the marital
settlemcnt agrcement in accordance with Scction 401.1 ofthc Divorcc Codc authorizing
modification of an aspect of the alimony provision. See slIpra text accompanying notes 4
and 10. Thus, the partics were acquaintcd with Section 401.1, which includcd the
provision relating to judicial modification of child support agrccments quoted in thc text.
12 Such an omission may havc had morc significancc in 1989 than it would today.
See D'HIIYV, D'NI/Y, 390 Pa. Supcr. 509, 568 A.2d 1289 (1990).
5
,--,
,....,
-
I N D E X TOW I T NE SSE S
~OR THE PLAINTIFF
Mark Wade Gramling (as on cross),
By Ms. Gramling
By Mr. Abraham
~AMINATIOl'l
4, 29
22
Gernilee Carter Gramling
D~RECT
31
.cROS~
40
Rlill.I REC'f
47
RECROSS
FOR THE DEFENDANT
IlIRECT
56
CROS$.
REDI~1i:QI
RECROSS
Mark Wade Graml ing
Melissa Heckard
62
73
81
._~--~--------------------------~-
I N D E X TO EX H I BIT S
FOR THE PLAINTIFF MARKED
ADMITTEQ
48
No. 1 - matrimonial settlement agreement 6
No. 2 - Dauphin County docket 11
48
48
No. 3 - Petition To Decrease SUpport 13
No. 4 - Dauphin County Order of Court 15
No. 5 - Transcript of contempt proceeding 69
48
82
FOR THE DEFENDANT
None
-
1""'1
1 March 4, 1999
2 Courtroom No. 1
3 1:35 p.m.
4 THE COURT: This is the time and place for a
5 trial in the case of ~nilee Carter Gramlinu v. Mark W.
6 Gramlinq, We will let the record indicate that the
7 Plaintiff is present in court r.epresenting herself, and the
8 Defendant is present in court represented by James Abraham,
9 Esquire. Ms. Gramling, do you want to call your first
10 witness'?
11 MS. GRAMLING: I call to the stand, Mark
12 Gramling.
13 MR. ABRAHAM: Your Honor, may we approach
14 very quickly?
15 THE COUR'f: You don't need to approach,
16 because there's no jury here.
17 MR. ABRAHAM: My client has a concern that,
18 this is going on between two parents, and the daughter is in
19 the courtroom, and we don't think
20 THE COURT: That's a legitimate concern.
21 MR. ABRAHAM: We don't think it's in the
22 child's best interest to hear all this dispute.
23 THE COURT: I think that's right. I think
24 it's always a bad idea to have children in court to hear
25 disputes like this. Do you want to --
3
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f""'I
1 MR. ABRAHAM: We would ask that she not be in
2 the courtroom during this time.
3 THE COURT: What's your daughter's name?
4 MS. GRAMLING: Marcel.
5 THE COURT: Marcel, do you want to step out?
6 I don't know if you're going to be called as a witness or
7 not, but if you are, then we'll bring you back in. Thank
8 you.
9 (Whpreupon, Marcel Gramling exited the
10 courtroom.)
11 THE COUR1': And you're ca 11 ing Mr. Graml ing
12 as on cross examination, Ms. Gramling?
13 MS. GRAMLING: Yes.
14 THE COURT: Okay.
15 Whereupon,
16 MARK WADE GRAMLING
17 having been duly sworn, testified as,follows:
18 AS ON CROSS
19 EXAMINATION
20 BY MS. GRAMLING:
21 Q Would you please state your name and address
22 to the Court, please?
23 A My name is Mark Wade Gramling. My address is
24 201 Modena Drive in Cary, North Carolina.
25 Q Would you also tell the Court when you moved
4
A
Q
A
Q
A
than Marcel?
A
Q
""""-,
r'
5
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,....\
~
1 MR. ABRAHAM: I'd like to see what that is,'
.2 Judge.
3 MS. GRAMLING: It's the marital settlement
4 agreement.
S (Whereupon,
6 Plaintiff's Exhibit NO. 1
7 was marked for identification.)
8 BY MS. GRAMLING:
9 Q Is t ha t ""
10 THE COURT: Now wait. We need to know how
11 this has been marked and what YO\l're referring to.
12 MS, GRAMI,ING: It's exhibit ,,- it's
13 Plaintiff's Exhibit No.1.
14 THE COURT: All right.
15 MS. GRAMLING: And it's a copy -"
16 THE COURT: No, you can't say what it is.
17 You can ask the witness what it is,
18 MS. GRAMLING: Okay,
19 .BY MS. GRAMLING:
20 Q Can you tell us what this is, please?
21 A That's our decree in divorce.
22 Q What's attached to it?
23 A Our matrimonial settlement agreement.
24 Q Would you turn to the very last page of that
25 agreement, please, and could you look at count ten on page
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six, where you are now, and read the highlighted part a into
the record?
A This agreement shall survive any action for
divorce which may be instituted or prosecuted by either
party and no order, judgment or decree of divorce
(temporary, interlocutory, final or permanent) shall effect
or modify the financial terms of this agreement. This
agreement shall be embodied in and made part of Hny such
judgment or decree of final divorce but shall not be merged
into the divorce decree. It is specifically agreed that the
five-year term for alimony provision --
Q That's okay. I just wanted you to read the
highlighted parts. Thank you. Now would you look at count
one, paragraph one, two, and three, and just briefly tell us
what they're about? This is count one. This is paragraph
one, two, and three. You don't have to read them, just
indicate, unless you feel a necessity to do so.
A What's your question?
Q I would like you to tell us what paragraph
one says, what the requirement is?
A Okay.
Q Right here.
A Okay. It's an agreement of the modification
of the domestic relations order.
Q Is it for child support?
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A It's for child support and spousal support.
Q And how much is the child support in the
amount of?
A $190.00 per week.
Q Okay. Now in the second paragraph, I'd like
you to indicate, starting right here?
A Husband agrees to the voluntary attachment of
his wages.
Q Okay. That's good. And three?
A Husband shall continue to cover Marcel as a
dependent on his health insurance policy for as long as
Marcel is
Q Is a dependent. Okay. Now this one --
THE COURT: Okay. If you want him to read
something, then you have to let him read it.
MS. GRAMLING: Okay. I'm nervous and
hurrying, so I'll slow down.
THE COUR1': That's all right, but just let
him read what you want him to read.
MS. GRAMLING: Okay.
THE WITNESS: What would you like me to read?
BY MS. GRAMLING:
Q Read that again so --
A Husband shall continue to cover Marcel as a
dependent on his health insurance policy for as long as
8
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f""I
1 Marcel is eligible to be claimed as a dependent.
2 Q Okay. Now would you read count three?
3 THE COURT: 1'here are actually counts in this
4 agreement?
5 MS. GRAMLING: Well, I don't know what you
6 call them. Items.
7 THE COURT: Are they called counts or are
8 they paragraphs?
9 MS. GRAMLING: They're items, and then under
10 each item are different paragraphs.
11 MR. ABRAHAM: They're just paragraphs in the
12 agreement, I believe. I agree with Ms. Gramling, that's
13 what they are.
14 THE WITNESS: What's your question now?
15 BY MS. GRAMLING:
16 Q Read number three?
17 A Life insurance. The parties agree that
18 husband shall maintain life insurance coverage on his life
19 in the amount of $100,000.00 with Marcel designated as
20 irrevocable beneficiary until she has completed college or
21 through age 21, whichever occurs first.
22 Q Now number seven?
23 A It says, performance of necessary acts. Each
24 party shall execute any and all documents and perform any
25 act necessary to carry out the effectuate the terms and
9
,.,"",
1""'"
1 provisions of this agreement.
2 Q We already have this in the record now. To
3 the best of your knowledge, is my signature on there? Did I
4 sign that?
5 A Yes.
. 6 Q And to your knowledge, did I perform all the
7 necessary acts to accomplish what had to be done in this
8 agreement?
9 A I don't understand.
10 Q Well, when there's an agreement, usually the
11 parties both have to perform some sort of things. Did I do
12 my part to fulfill the terms of this agreement? Everything
13 that was required of me, did I do it?
14 A To the best of my knowledge.
15 Q Okay. Do you recall receiving a reduction in
16 child support on November 10th, 1988, which was a reduction
17 of the child support in our original property settlement
18 agreement while we were still married?
19 A Do I recall something that occurred ten years
20 ago? Not specifically, no, I don't.
21 MS. GRAMLING: I have another exhibit, Your
22 Honor, which I can refresh his memory with. If I can show
23 it to the attorney and enter it as an exhibit.
24 THE COURT: All right.
25 (Whereupon,
10
--.,\
f"',
1 Plaintiff's Exhibit No.2
2 was marked for identification.)
3 THE COUR'f: You need to get on the record now
4 what you have done. You've marked something as an exhibit,
5 so you need to show the witness a piece of paper and
6 identify it by its exhibit number,
7 BY MS, GRAMLING:
8 Q This is exhibit, Plaintiff's Exhibit 2. This
9 is H running account of all --
10 THE COURT: No, you can't say what it is.
11 You can identify it, and then you can have the witness say
12 what it is.
13 BY MS. GRAMLING:
14 Q Again, identify this document.
15 A It says, Court of Common Pleas, Dauphin
16 County Domestic Relations. It looks like it's a transfer
17 from York County.
18 MS. GRAMI,ING: Your Honor, that's not exactly
19 what it is. How do I get him to say what it is?
20 THE COURT: I mean, you can testify yourself
21 as to these things. Do you have to bring them out through
22 an adverse party? It's like pulling teeth usually when you
23 try to do that. It's usually easier just to present it
24 yourself, but if you want to ask him, you can lead him since
25 you called him as of cross. You can say, is this such and
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BY MS. GRAMLINGl
Q How did YO\l -. can you tell the Court and
tell me how you knew that you could file for a reduction in
child support that was originally set in the property
settlement agreement? Can you remember under what authority
or how you thought legally you could change that number that
was in the property settlement agreement?
A Well, I was always Llrlder the impression that
it was a modifiable order.
Q How did you come to believe that you could
have the health insurance and life insurance provisions of
the marital settlement agreement modified per way of having
them removed? Where did that come from?
A. I am not sure I follow what you're saying.
Q Okay.
MS. GRAMLING; I have another exhibit here,
Your Honor.
(Whereupon,
Plaintiff's Exhibit No.3
was marked for identification.)
BY MS. GRAMLING:
Q Plaintiff's Exhibit No.3. Can you tell the
Court what that document is, please?
A This is a pet:ltion filed to decrease support.
Q By?
13
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.......,
1 negotiating this agreement that led him to believe that, but
2 you can't ask him what his lawyer told him.
3 MS. GRAMLING: Okay.
4 BY MS. GRAMLING:
5 Q Do you recall what led you to believe that
6 you could alter the agreement?
7 A I was under the impression and believed that
8 the order could be modified at any time.
9 Q Including the lnsurances, obviously?
10 A Well, I believe at the time there were
11 circumstances that were -- I'm just reading this now. It
12 was a while ago. There was circumstances associated with my
13 petition.
14 Q Okay. Thank you. I have another exhibit.
15 (Whereupon,
16 Plaintiff's Exhibit No.4
17 was marked for identification.)
18 BY MS. GRAMLING:
19 Q This is Plaintiff's Exhibit 4. Would you
20 describe that document and read it for the Court, please?
21 A It's an Order of the Court from Dauphin
22 County. AND NOW, this 15th day of May, 1990, after hearing
23 in the above-captioned case, the Court finds the Defendant
24 in contempt of court and suspends the imposition of a
25 thirty-day jail sentence until he misses the first payment
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on the order.
Q Who's the Defendant on that document?
A Myself.
Q And that first payment was for -- what was
For what were you found in contempt? Do you
that for?
recall ?
A Yes, I lost my job.
Q Was it for child support?
MR. ABRAHAM: I would ask that he be
allowed --
THE COURT: Let me say something here. I
don't understand how this has any relevance to the question
of whether you're entitled under a contract to the child
support that you're claiming. What difference does it make
if he was held in contempt on a support order of a Dauphin
County Court?
MS. GRAMLING: Well, perhaps it doesn't. I
was trying to show a pattern of his noncompliance with the
entire agreement.
THE COURT: We'll be here for weeks and weeks
if we get into things like that. This is a fairly simple
case. It seems to me to be legal. But you've got to get
the factual basis for your position, and then Mr. Abraham
has to get his factual basis on. I don't want to hear about
contempt of a support order. That's just not relevant to
16
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r""'i
1 the contractual issue here.
2 MS. GRAMLING: Okay. Again, I thought I was
3 establishing his noncompliance with the entire agreement,
4 because I do have other documents in here that show that he
5 didn't comply with other items in the agreement throughout
6 its history up until one month ago. May I do one more?
7 THE COURT: Sure.
8 MS. GRAMLING: We'll skip all these other
9 ones, and I'll go to this one.
10 THE COURT: You are certainly entitled to
11 show breaches of the agreement. You're talking now about
12 violations of some support order entered by another Court.
13 You're suing on a contract not on the Court's support
14 orders.
15 MS. GRAMLING: Well, let me see. Your Honor,
16 if that's the case, then he never paid anything on the
17 contract ever, because everything he paid, he paid through
18 Domestic Relations under their support orders.
19 THE COURT: Well, I understand that.
20 MS. GRAMLING: So to my knowledge, he's never
21 paid anything specifically allotted to paying the contract,
22 so the reason I was showing that is, it was both of our
23 understandings at the time that that amount of money
24 reflected the agreement in the contract. That's why I'm
25 trying to show this, that was simultaneously violating the
17
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1 Domestic Relations support order as well as the contract.
2 THE COURT: All right, You may present that
3 evidence.
4 MS. GRAMLING: Okay. Thank you.
5 THE COURT: Do we have some stipulation as to
6 how much money has been paid for child support over the
7 years since the marital settlement agreement was executed?
8 MS. GRAMLING: I have a figure.
9 MR. ABRAHAM: Well, Your Honor, we have - - I
10 have subpoenaed Melissa Heckard to testify as to really what
11 the current arrearage is, which would tell you -- which
12 would confirm that all payments had been made in accordance
13 with at least the Domestic Relations proceedings, and she
14 can testify as to what's not been paid, and that would
15 answer the question as to how much overall has been paid.
16 THE COURT: All right. Can we save a lot of
17 time by figuring out what should have been paid, if your
18 position is correct, and the contract is binding, regardless
19 of any modifications that had occurred?
20 MS. GRAMLING: I have that, Your Honor.
21 THE COURT: And then find out from the
22 Domestic Relations Office how much money has actually been
23 paid.
24 MS. GRAMI,ING: I have both of those figures.
25 Do you want them now?
18
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r"
1 THE COURT: Well, I'm not trying to tell you
2 how to present the case, but again, it's like pulling teeth
3 to bring out every prior noncompliance with the order. What
4 you're really interested in is, what is the ultimate figure
5 that's been paid and what is the figure that you say should
6 have been paid.
7 MS. GRAMLING: Okay. Well
B THE COURT: Ms. Heckard, I don't think you
9 need to sit here through this entire thing. It's a terrible
10 waste of your time. We'll just call you when we're ready,
11 if that's all right, Mr. Abraham.
12 MR. ABRAHAM: That/s fine, Judge.
13 TilE COURT: Why don't we take a brief recess
14 and, Ms. Gramling and Mr. Abraham, maybe you can agree on
15 what has been paid and what Ms. Gramling is saying should
16 have been paid.
17 MR. ABRAHAM: If I could check.
18 THE COURT: We'll take a brief recess. You
19 can step down for a second.
20 (Whereupon, a recess was taken at 1:55 p.m.
21 and proceedings reconvened at 2:25 p.m.)
22 THE COUR'f: We'll let the record indicate
23 that the Court has reconvened in open session. Ms. Gramling
24 and Mr. Abraham, have you reached an agreement as to the
25 damage figure claimed?
19
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1 Q Did you consistently pay $190.00 a week since
2 the signing of the contract?
3 A I was wage-attached by Domestic Relations
4 court orders and
5 Q In your memory, did you pay $190.00 a week
6 since the date of the agreement?
7 A No, I did not.
8 Q And did you consistently maintain life
9 insurance on yourself as in the agreement and insurance,
10 medical insurance on the child, and did you volunteer for
11 wage attachments every time you moved?
12 A I did not consistently maintain life
13 insurance on myself, if that's the first question.
14 Q Uh-huh.
15 A And every time I moved, I notified Domestic
16 Relations as to my location.
17 Q And the medical insurance, to your memory,
18 did you always have medical insurance?
19 A Whenever my employer -- whenever medical
20 insurance was available to me through my employer, I had it,
21 up until when you insisted
22 MS. GRAMLING: That's all, Your Honor.
23 THE COURT: Wait. He was answering a
24 question. What was the answer?
25 MR. ABRAHAM l I would ask that he he allowed
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1 to finish his answer.
2 THE COURT: Go ahead. Finish your answer.
3 THE WITNESS: Up until most recently when you
4 insisted that I not carry Marcel on health insurance and
5 that you would, because you didn't want that Hgure, what
6 the additional expense I had to carry, you didn't want that
7
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13 EXAMINATION
14 BY MR. ABRAHAM:
15 Q Mr. Gramling, I'm going to show you what's
16 been marked as Plaintiff's Exhibit No.1, and I believe it's
17 been identified as the divorce decree and matrimonial
18 settlement agreement, is that right?
19 A That's correct.
20 Q Okay, Ms. Gramling asked YO\! about certain
21 language on this agreement, and I'm going to direct your
22 attention first to the first page, okay. Can you tell the
23 Court what your understanding was of paragraph number one,
24 child support?
25 A Child support was basically a modification of
f .i.gure for part of Domestic Relations' calculation.
MS. GRAMLING: Okay. Thank you.
THE COURT: Mr. Abraham.
MR. ABRAHAM: Thank you, Judge. May I
approach, Judge?
THE COUR'I': All right.
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a court order and was a modifiable issue,
Q Okay. What specific court order did this
agreement modify? Can you identify that in paragraph one?
A Yeah, this modified a court order in Dauphin
County Domestic Relations, 460 DR 1988.
Q Okay. What other agreement did this 1989
agreement modify? I'm going to direct your: attention, if I
could, to the first page of this agreement. The one, two,
third paragraph. Strike that. I'm going to refer you to
the NOW THEREFORE paragraph. If you could just read that to
the Court?
A Sure. NOW THEREFORE, in consideration of the
mutual promises, covenants and undertakings herein
contained, the parties, each intending to be legally bound,
agree to modify the property settlement agreement of March
20th, 1987, as follows.
Q All right. So this was a modification of a
prior property settlement agreement?
A Correct.
Q Was that added into by the two of you after
you separated?
A Yes.
Q Now insofar as the very first page, before I
get to that, what was your understanding after this
agreement was entered into as to how much you were obligated
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1 to pay in support?
2 A Whatever was established by Domestic
3 Relations per court order.
4 Q All right. Did Ms. Gramling ever file
5 petitions to modify this amount through Domestic Relations?
6 A She had several modification petitions.
7 Q Let me show you Plaintiff's Exhibit No.2.
8 And I'm just going to point out to you, for example,
9 November 2nd of 1992. Was that your mOdification? Was that
10 an increase or a decrease? Do you recall that modification
11 petition? Do you know if you filed the mOdification?
12 A I don't believe I filed the modiHcation.
13 Q Okay. And if it wasn't you, it was Ms,
14 Gramling, right?
15 A Correct.
16 Q Now was ther'e a modification filed __ did you
17 file a modification, Mr. Gramling, when this was in Allegany
18 County?
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A No, I did not.
Q Did Ms. Gramling file a modification down
there?
A Yes, she did.
Q What was that for?
A That was to increase the support in the
amount in addition equal to Marcel's private school tuition.
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1 Q And there was an award, I believe, of about
2 $900.00, right?
) A In addition to, or total, yeah.
4 Q And that was even in excess of the 1989
5 agreement, which comes down to about $822.00, right?
6 A Correct.
7 Q So there was a modification filed by Ms.
8 Gramling to exceed the amount of the 1989 agreement, is that
9 right?
10 A Yeah, that's how it was.
11 Q And you filed petitions to modify to
12 decrease, as Ms. Gramling pointed out, right?
13 A Correct.
14 Q Okay. Now most recently - - first of all,
15 what was the final result of the petition to modify in
16 Allegany County filed by Ms. Gramling?
17 A It was originally granted, and consequently
18 an appeal was filed,' and in the end, it was found that I did
19 not have to pay the additional support to cover her tuition,
20 Q That was about $900.00 minus about $600.00,
21 right, probably about a $300.00 difference?
22 A Correct.
23 Q What did Mrs. Gramling do then in regard to
24 modificationlil here in Cumberland County after that decision?
25 A I believe she filed a petition in Cumberland
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1 County for the same thing.
2
Q
All right. And that was just in August 1998?
3
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I believe.
4
Q
What was Ms. Heckard's -- she'll be here to
5 testify, but if you know -- what was her decision as to that
6 petition to modify?
7
A
That it Was not, that they would not modify
8 it in court with what she was looking for.
9
Q
Both times she filed to petition in Allegany
10 County and Cumberland County, they were denied, is that
11 right, to your recollection?
12
A
Yeah, to my recollection.
1,3
THE COURT: In my pretrial conference order,
14 I referred to a hearing that was scheduled before Judge
15 Bayley for February 22, 1999.
16
MR. ABRAHAM: That's right, Judge.
THE COURT: Nhat happened in that case?
MS, GRAMLING: I dropped my appeal, and it
17
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19 was only his side that was heard. His appeal was heard.
20 Mine, I dropped.
21
THE COURT: All right.
22
MR, ABRAHAM: We had appealed the arrearages,
23 Your Honor. They were listed at about $10,000.00. fuld we
24 worked it out, and I provided documentation and other
25 evidence of payments by my client, some of which were not
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accounted for, and I believe the current arreara91,1 went. from
$10,000.00 to about $4200.00.
1'HE COURT: So that case is over?
MR. ABRAJIAM: That arrearage case is over,
yes, Your Honor, We have reached an aqreement on what the
actual arrearages are.
MS. GRAMLING: I don't knolV if this is the
exact time to reiterate that my request for the school
tuition in that appeal was to be simply to payoff what we
owed, not to continue her in school, but there's a $5000.00
balance, and it was simply to try to get him to share that
balance. I have since decided, the school will just have to
eat it, but I was still not beating a dead horse. I was
just trying to honor the money spent on our child.
'rHE COURT : Okay .
BY MR. ABRAHAM:
Q Now I want to direct your attention to
Plaintiff's Exhibit No.1, the decree in divorce. This was
your divorce decree. What's the date on that?
A December 6, 1989.
Q And to your understanding, is this a true and
correct copy of the actual court order, ordering the
di vorce?
A Yes,
Q I want you to read for the Court beginning
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1 with the word, further'?
2 A Further, the matrimonial settlement agreement
3 executed by the parties of October 17, 1989, is incorporated
4 herein and the part ies ar" ordered to comply with the terms
5 of said agreement.
6 Q Do you see anywhe:t:'e in the actual order where
7 it uses the language, but not merged? Does it say that on
8 the actual decr~e?
9 A No, it does not.
10 Q Now I believe you just testified that it was
11 your understanding that the amount stated in paragraph one,
12 child support, could be modified through Domestic Relations?
13 A That' 13 correct,
14 Q Okay. That was your understanding of the
15 intent of the parties when you entered into that agreement,
16 is that right?
17 A Sure, yes,
18 Q Was that your understanding as to -- strike
19 that. Did you believe that Ms, Gramling understood that as
20 well, that this could be modified through a Domestic
21 Relations proceedings?
22 A Yes, I do.
23 Q How is that your understanding?
24 A Well, basically, we've been kind of going
25 through this on and off for a period of x number of years,
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1 and she never once brought this to anyone's attention.
2 Q Brought the marital settlement agreement?
3 A Correct.
4 Q Did she ever file any kind of contempt
5 petition against you based on the child support issue alone
6 for failing to pay $190.00?
7 A No.
8 Q Did she ever, in the last ten years, ever try
9 to enforce this provision until now?
10 A No.
11 MR. ABRAHAM: Nothing further, Judge.
12 THE COURT: Ms. Graml ing, do you have any
13 further questions of this witness?
14 MS. GRAMLING: Yes, I sure do / Your Honor.
15 AS ON CROSS
16 RE-EXAMINATION
17 BY MS. GRAMLING:
18 Q Do you recall after the support was reduced
19 that I did object and file a -- do you recall a lawsuit
20 filed to the Superior Court in the State of Pennsylvania?
21 A No, I don't recall that.
22 Q It's referenced right in the agreement.
23 Would you read it for the Court that's already Plaintiff's
24 Exhibit No.1?
25 A Wife hereby agrees to dismiss with prejudice
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the appeal of the January 17, 1989, order of Judge Morrison
pending in the Superior Court. I don't remember what that
was even about.
Q You don't remember the nature of that?
A No , I don't.
Q The modification that your attorney talked
about on November 2nd, 1992, that's in here, this followed
a -- was this not done on your petition to decrease, and
then that file I appealed, and it was another decrease on my
appeal?
A I don't recall that far back exactly what the
circumstances were,
Q Well this reflects that,
THE COURT: When you say, this, that doesn't
mean anything. Nobody knows what you're referring to when
you look at the record. Are you refer.ring to an exhibit?
MS. GRAMLING: On Exhibit No.2, Plai,ntiff's
Exhibit No.2, the item at November 2nd, 1992, entered by
Dauphin County Domestic Relations, a modification of support
order, where the child's support is reduced to $100.00
actually reflects a second reduction on her support that was
given.
THE COURT: I'm sorry. What's the question?
You can ask questions.
MS. GRAMLING: The question was, his attorney
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Q Okay. Are. you the Plaintiff in this case?
A I am the Plaintiff in thi~ case.
o Before you start with the things you want to
bring out, could you give me the name of your daughter and
her date of birth?
A Our daughter is Marcel, M-a-r-c"e-l.
Q Marcel Gramling?
A Right. And she was born on the 4th of
February, 1985.
Q Okay. And she's living with you, i~ she?
A That's correct.
Q And was she in the back of the courtroom
today?
A Yes, she was.
Q Is she not in school?
A No. Her father lives in North Carolina, and
she never gets to see him, so I think this gives her an
opportunity to visit with him.
Q You're saying, the reason she was in the
courtroom today was so that she could visit with her father?
A Well, I sort of suspected she wouldn't be
allowed to sit in the courtroom, but I knew she would get to
visit with him.
Q So you took her out of school for this
proceeding?
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1 A For the afternoon, yes.
2 Q Okay, What would you like to say about this
3 case in terms of factual recitations?
4 A I am going to atten'pt to respond to the same
5 questions that Mr. Gramling's attorney asked him. One of
6 those is, they kind of spoke for me by saying that I
7 understood that it was modifiable. My understanding was
8 that, it was not modifiable. That is evidenced by the
9 original figure in the property settlement agreement, that
10 when he had it decreased, I eventually filed an appeal to
11 the Superior Court under the same logic that I sit here
12 today, that logic being, it's an agreement, it's a contract.
13 I thought I was signing a firm agr",ement.
14 Then they offered me -- that was the property settlement
15 agreement. Then he wanted his divorce very desperately. So
16 at a Master's hearing that was not brought to fruition, but
17 anyway, it was dismissed in the hallway by Master Larry
18 Adler's's office. Mr. Gramling and his lawyer offered me
19 the figure of 190 a week, and that Mr. Gramling would
20 volunteer for a wage attachment,
21 The reason that sounded good to me, and he
22 knew it would, was because he had decreased the child
23 support, and when I was awarded child support, it was often
24 I was not getting it. So the voluntary wage attachment was
2'5 to make it more attractive to me so I would sign the papers
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1 so he cOljld remarry. I have never ever one time have I ever
2 believed that I signed a legal document that was not worth
3 the paper it was written on, that none of it meant anything.
4 If I had pelieved that, I wouldll' t have
5 bothered going through it. Clearly, through the exhibits I
6 showed today, Mr. Gramling was at some point of the opinion
7 that that document was meaningless and he could change it
8 any time he could write a petition for modification and get
9 approval. And in the case law that I am bringing today, . the
10 Supreme Court
11 Q Now this isn't really the time for argument,
12 it's just the time for facts, and then you can argue at the
13 conclusion.
14 A Let's see. In addition -- I don't know how
15 pertinent the school tuition issue is here, but I do want to
16 get it on the record that I was not still trying to get
17 tuition out of Mr. Gramling in my appeal. I was simply
18 trying to come to some way to pay the school for what was
19 owed. The other piece of my appeal was simply to gather
20 more information about what his income is. I did drop that.
21 I think that's it, Your Honor.
22 Q Let me just ask some background questions.
23 What was the date of your marriage?
24 A November 27th, 1982.
25 Q 1982. And what was the date of your
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1 divorced, apparently there W~a another agreement?
2 A We mutually agreed to .modify the original
3 agreement.
4 Q Okay.
5 A For child support, and that was a
6 modification of the original property settlement agreement,
7 which rolled into being a marital settlement agreement, and
8 they - - and it was - - the child support was increased by
9 $30.00 a week, from 160 to 190.
10 Q Okay,
11 A We mutually agreed on that and signed it.
12 Q Now you said something about that being in
13 return for dropping an appeal to the S1.\perior Court?
14 A Right. The property settlement agreement
15 called for 160 child support. He filed for a decrease and
16 was awarded it. I appealed and lost my appeal in the Common
17 Pleas Court, so I appealed it to the Pennsylvania Superior
18 Court, because I was outraged it wasn't being viewed as what
19 I thought it was, which was an agreement.
20 Q And now you were represented at that time?
21 A No .
22 Q You did this yourself?
23 A I started with an attorney, but I had no
24 money. I had no income and no money, so I dismissed him,
25 and I carried it on myself. And at that time I did
36
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1 everything by hand, even typud it, 'fhe Superior Court
2 accepted the case.
3 Q Now Judge Morrison evidently ruled against
4 you, is that right?
5 A Right.
6 Q And the issue in Judge Morrison's case was
7 what?
8 A A decrease in child support. He was claiming
9 in that request that he had all kinds of expenses and
10 couldn't afford to pay the 160.
11 Q Your position was what, you had an agreement
12 and it sho\\ld have been enforced?
13 A Yeah, and that the things he was saying
14 wasn't true either, but --
15 Q And did Judge Morrison write an opinion?
16 A r believe he did, yes. I believe I probably
17 have that here.
18 Q That would be of interest to me if you have
19 an opinion by another judge.
20 A Do you want me to look for it?
21 Q Sure, if you wouldn't mind.
22 THE COURT: Mr. Abraham, do you have it?
23 MR. ABRAHAM: No, I don't have it.
24 THE WITNESS: I think he says that the
25 Defendant is suffering undue financial hardship and
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1 awards -- and affirms the hearing officer,
2 THE COUR'!,: I'm more interested in what he
3 may have r~led upon on the legal issues in the case.
4 MR. ABRAHAM: I'd like to see the '87
5 agreement, Judge.
6 THE COURT: Well, first, let's just try to
7 get the opinion by Judge Morrison.
8 THE WITNESS: I don't know. I may have it
9 and I may not, What year was that?
10 THE COURT, I think you said it was 1987.
11 Well, I don't know what year it was. I think you said the
12 agreement was 1987. I don't know when the court case may
13 have been.
14 THE WITNESS: It looks like I don't have it.
15 I do remember it though, but for some reason or other, I
16 don't have it here.
17 THE COURT: All right. Mr. Abraham, you
18 don't have that either?
19 MR. ABRAHAJ"l: I don't think there was one,
20 Judge, frankly. For the record, the 19 -- it was a property
21 settlement agreement in March of 1987, and then the Domestic
22 Relations order from Dauphin County did not start until 1988
23 because the DR number is 1988. And I believe, and I'm
24 not -- I'll have my client testify on rebuttal, that the
25 appeal to Judge Morrison's decision was based on the
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1 Domestic Relations decision not on any prior agreement.
2 BY 1'HE COURT:
3 Q Your recollection is different? It had
4 something to do with the prior agreement?
5 A P'lrdon me',
6 Q Your recollection is that Judge Morrison's
"I decision had something to do with the prior agreement',
8 A No, I think that he was act!.ng on a Domestic
9 Relations order. Nobody was paying any attention to the
10 agreement anywhere. I was trying to get them to do so, but
1l nobody would address themselves to that agreement. And when
12 I was in the courtroom, I really did feel like I was
13 defending the agreement. However, everybody else thought
14 they were dealing with Domestic Relations orders.
15 Q Okay. So you appealed Judge Morrison's order
16 to the Superior Court and then withdrew the appeal, because
17 you executed a new agreement or an amendatory agreement?
lS A Because they made me an offer that I
19 accepted, something for something. They offered me 190 a
20 week plus a voluntary wage attachment, which sounded good,
21 because then I knew the money I was supposed to get, I would
22 get. So that's the only reason I dropped it, and I'm sort
23 of sorry now.
24 1'HE COURT: Okay. Mr. Abraham.
25 MR. ABRAHAM: 1'hank you, Your Honor. May I
39
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1 approaoh, sir?
2 THE COURT: All right.
3 CROSS EXAMINATION
4 BY MR. ABRAHAM:
5 Q Ms, Gramling, the Dom~stic Relations order in
6 Dauphin County, that was 1988, corroct, the very first one?
7 A The very first one was in York County for
8 $240.00 a week.
9 Q The very first Dauphin County order was 1988,
10 correct?
11 A I believe, yeah, I guess. I don't know.
12 Q Let me direct your attention to page one.
13 Does that have a 1988 docket number in Dauphin County Court?
.14 A Yes, it does, right.
15 THE COURT: Page one of what?
16 MR. ABRAHAM: Page one, Your Honor, I'm
17 sorry, of Plaintiff's Exhibit No, 1,
18 THE COURT: Okay.
19 BY MR. ABRAHAM:
20 Q And your appeal to the Superior Court was on
21 Judge Morrison's decision to affirm the decision of the
22 Domestic Relations Office, correct?
23 A Right.
24 Q Now--
25 A On a decrease.
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1 Q Right. And then you entered into this
2 agreement and dropped the appeal, correct?
3 A That' B correct.
4 Q Since 19 -- December 6 of 1989, iBn' t it true
5 that you have never attempted to enforce this agreement
6 until April of 1998, isn't that correct?
7 A No, it is not correct.
8 Q Tell the Court when you f11ed a lawsuit based
9 upon the 1989 marital settlement agreement?
10 A I never filed a lawsuit.
11 Q All right.
12 A It doesn't mean I haven't attempted to talk
13 to attorneys, get them to take my case. They all said they
14 couldn't, it was not viable. That's why I'm here by myself.
15 Q Let me rephrase. You never filed a lawsuit
16 of record since December of 1989 based upon or attempting to
17 enforce this child support provision?
18 A That is correct. That is correct.
19 Q And isn't it true -- let me direct your
20 attention to Plaintiff's Exhibit No.2. I'm looking for the
21 docket, Plaintiff's Exhibit 2. I found it. I found it.
22 Let me direct your attention to Plaintiff's Exhibit No.2.
23 Take a minute to look through these from 1989. Let's start
24 with page two. Let's start with January 12th of 1990. If
25 you could look through that log and advise the Court of how
41
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1 manY?f those modifications were your's, your petitions?
2 A 1990 is the modification made as the result
3 of the agreement,
4 Q And how many of the modifications thereafter
5 were as a result of the petitions filed by yoU?
6 A November 2nd, 1990, is a petition to
7 increase. but the only thing I asked for was the life
8 insurance to be put on the support order under the direction
9 of Judge Morgan, because I took the Defendant to court for
10 not maintaining life insurance. Judge Morgan said, add it
11 to the Domestic Relations order, it will make it easier for
12 you to enforce, That was not asking for money for child
13 support. It was asking for the life insurance to be added
14 to the Domestic Relations order so they could use their
15 enforcement to make him maintain the life insurance. Do you
16 want to talk about the next one?
17 Q Maybe I can expedi te this, Judge.
18 A I' 11 talk about the next one.
19 Q Can I take a look at this?
20 A The next one is the decrease.
21 Q November 2nd, 1990, petition to increase
22 SUpport. You filed that one, correct?
23 A That's the one I just talked about.
24 Q Okay, February 12th, 1991, there was an
25 agreed modification of support order, isn't that correct?
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A That's just them putting this in. That. is
them.
Q The life insurance?
A Right.
Q Okay. All right. And then November 2nd of
1992, can you explain that one to the Court?
A This is the one I have that order here.
Q What was that petition based on?
A That was my appeal. I appealed this
decrease, where he got the decrease, and I appealed it, and
it was decreased again.
Q Okay. June 23rd of 1993, petition to
increase support order. Do you recall filing that petition
to increase?
A What is it?
Q June of '93?
A I would like very much to look at it. I have
it here.
Q My question is, do you recall, yes or no?
A No, I don't.
Q Okay. You recently in August and/or July of
1998 filed for a modification of the child support amount,
isn't that correct?
A That's correct,
Q Okay. And isn't it true that prior to that,
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1 you had filed for a modification of the court order through
2 Domestic Relations when it was in Allegany County for
3 private school, to cover the costs of private school, isn't
4 that correct?
5 A Yes, I did do that,
6 Q All right. Now you had discllssed the
7 insurance issue with Mr. Gramling, and isn't it true that
8 that issue had been resolved by Judge Hoover just this year
9 at a hearing in which we had attended, and it was resolved
10 pursuant to the judge's order, isn't that correct?
11 A I don't think I understand your question.
12 Q Was there a hearing in 1998 before Judge
13 Hoover on whether or not Mr. Gramling failed to provide life
14 insurance?
15 A Yes, and he was found in contempt.
16 Q Okay. Isn't it true --
17 A For not providing, yes.
18 Q Isn't it true that he would have had to pay
19 $500.00 in the event he failed to secure life insurance?
20 A Something like that.
21 Q So it's been resolved through Dauphin County
22 is my question, isn't that correct?
23 A Not exactly resolved.
24 Q Okay.
25 A I feel 1 ike I'm down there every six: months.
44
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1 Q Insofar as all of these actions since 1989,
2 at any time, if the intent of the parties, if your intent in
3 entering into that 1989 agreement was that $190.00 a week
4 was never modifiable, you could have filed a lawsuit to
5 enforce that agreement at any time there was a decrease in
6 the support amount, isn't that correct?
7 A No. I couldn't get a lawyer to do it. I
8 tried.
9 Q Okay. But you had the right to at any time
10 under your theory of this case, isn't that correct?
11 A Right. That's why I am here today.
12 Q But you never did until April of 1998,
13 correct?
14 A Right.
15 Q And isn't that because, Mrs. Gramling, the
16 clear intent of this agreement was that that child support
17 provision could always be modified through Domestic
18 Relations'?
19 A No. If I believed that, I would have had
20 clearer language put in the agreement, that it was not
21 modifiable, because I did not -- I always believed, an
22 agreement was an agreement. And perhaps it's the ,flaw of
23 the lay person, but nobody ever explained to me that it
24 seems to be the opinion throughout the State of
25 Pennsylvania, child support is always modifiable no matter
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1 where it's written and under what conditions.
2 Q Can you read the first paragraph or - - excuse
3 me. I'm going to show you what's been marked as Plaintiff's
4 Exhibit No. 1. I believe that's the same copy. Can you
5 read the divorce decree language starting with the word,
6 further?
7 A Further, the matrimonial settlement agreement
8 executed by the parties on October 17th, 1989, is
9 incorporated herein and the parties are ordered to comply
10 the parties are ordered to comply with the terms of this
11 agreement.
12 Q Would you agree with me that there's been
13 more than there's been anywhere from five to ten
14 modifications since 1989 through Domestic Relations of this
15 agreement?
16 A Yes.
17 Q Okay. And that doesn't tell you that the
18 intent of the parties that entered into that agreement was
19 that this could be modified through the Office of Domestic
20 Relathll1s?
21 A No, it tells me, there's not any clarity on
22 the law about this right now.
23 Q Okay. One minute, Judge. There's nothing in
24 this agreement that says that the child support is not
:;!5 modifiable, isn't that correct?
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That's true.
2
MR. ABRAHAM: Nothing further, JUdge.
THE COURT: Do you have anything you want to
3
4 add as a result of those questions?
5 REDIRECT EXAMINATION
6
THE WITNESS: Yeah, I do, if I remember them.
7 I reiterate on his question that, never for one minute did I
8 ever believe that that agreement was modHiable downwards.
9 Otherwise, when I stood in that hallway and agreed to that,
10 I certainly would have thought differently. I think the
11 remainder of what I have to say, Your Honor, is probably
12 going to be in closing.
13
THE COURT: Is argument, did you say?
14
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THE WITNESS: Yeah.
THE COURT: Okay. Mr. Abraham, do you have
16 any further questions as a result of that?
17
MR. ABRAHAM: No, Your Honor.
18
THE COURT: Okay. You ~ay step down. Thank
19 you. Do you have any further witnesses, Ms. Gramling, that
20 you wanted to present?
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MS. GRAMLING: No, I do not.
THE COURT: Do you want to move the admission
23 of your exhibits?
24
MS. GRAMLING: I move to enter my exhibits
25 into the record.
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1 THE COUR1': Mr. Abraham.
2 MR. ABRAHAM: I have no objection except to,
3 I believe, number four was the contempt order, Your Honor.
4 I would submit, that's not relevant to this proceeding. I
5 would object to its admission.
6 THE COURT: Okay. Ms. Gramling, Mr. Abraham
7 is objecting to Plaintiff's Exhibit No.4 as not being
8 relevant.
9 MS. GRAMLING: Well, Your Honor., I disagree
10 with that. I know you didn't particularly like hearing it,
11 but due to the fact that this is all balled up between the
12 courts viewing his commitment to pay child support in the
13 agreement as an action through Domestic Relations, I think
14 it is pertinent.
15 THE COURT: Okay. Plaintiff's Exhibits 1, 2,
16 3, and 4 are admitted.
17 (Whereupon,
18 Plaintiff's Exhibits Nos. 1, 2, 3, and 4
19 were admitted into evidence.)
20 THE COURT: Does that conclude your
21 case-in-chief?
22 MS. GRAMLING: Yes.
23 THE COURT: Okay. Mr. Abraham.
24 MR. ABRAHAM: Your Honor, at this time I am
25 going to move the Court for nonsuit and/or directed verdict'
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1 of this matter. I submit that Plaintiff has failed to
2 provide anything close to a preponderance of evidence in
3 this case to establish that she is entitled to $190.00 a
4 week. I think the evidence is clear that there is no
5 factual or legal basis for purposes of the enforcement of
6 this provision.
7 I think that in this matter, the language of
8 the decree clearly states that the decree, that the
9 agreement is i.ncorporated into the decree, that the decree,
10 therefore, and the agreement are merged. In the event that
11 this is a merged agreement, and I submit clearly, Your
12 Honor, it says, incorporated, if an agreement is
13 incorporated, then it merges into the divorce decree. Based
14 on that, I submit, the law clearly states that it cannot
15 stand alone to be enforced, and I direct the Court/s
16 attention to Tokach v. Tokach, which states the basic
17 'rHE COURT: Could you give the Court the cite
18 for that case?
19 MR. ABRAHAM: Yes, Your Honor. It is 474
20 A.2d 41, 1984 Pennsylvania Superior Court. And it's being
21 offered, Your Honor, simply to clarify on the issue of what
22 is the difference between a document that is incorporated
23 and a document that is incorporated but not merged. And in
24 this case, the decree, the agreement may say something to
25 the contrary, but the actual decree does not use the words,
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1 but not merged. It says, it is incorporated.
2 And under the Takach case, and I'll leave a
3 copy here for the Court, it clearly states, once a
4 settlement agreement is incorporated into a divorce decree,
5 either by reference or set out in full, the settlement
6 agreement merges into the decree and should no longer be
7 given independent effect.
8 And I would submit, Your Honor, in addition
9 to that law, that Mrs. Gramling on cross examination just
10 admitted that there is nothing in the agreement that
11 precluded its modification of the child support. Based on
12 the facts and the law at this point, Your Honor, I don't
13 believe that the Plaintiff has established any basis for her
14 claim, and I would ask the Court to declare a nonsuit before
15 we present our case.
16 THE COURT: All right. Ms. Gramling, did you
17 have a response to that argument?
18 MS. GRAMLING: Yes, Your Honor. I submit to
19 the Court that the fact that the document is silent on the
20 issue of child SUPPO,l:t's modifiability indicates, it is not
21 modifiable. Additionally, in ~ones v. Jones, and I have
22 that here if you would like it, Your Honor _..
23 'rIlE COURT: If you will give me the cite.
24 MS. GRAMLING: It is 651 A.2d 157, 438
25 Pa.Super. 26 Super. 1994. It states, the language of the
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1 agreement itself evidences the intent of the parties, The
2 language is clear in count ten, page six, where it says,
3 this agreement shall be embodied in and made part of any
4 such judgment or decree of final divorce but shall not be
5 merged into the divorce decree. In addition, in ~
6 Swartz, it is possible for support agreements and court
7 orders to stand apart, to coexist and be enforced
8 separately.
9 THE COURT: What' B the cite for that case?
10 MS. GRAMLING: That is .ilQll v. Soll.
11 THE COURT: No, you gave the name, Swartz v.
12 ~U.
13 MS. GRAMIJING: Well, that one is - - that was
14 quoted in the Swartz. case.
15 MR. ABRAHAM: I have the ~U cite, Your
16 Honor.
17 MS. GRAMLING: And so do I, but the Soli v,
18 ~ is where it is saying that, a support agreement and
19 court orders are able to stand apart and coexist
20 THE COURT: Sol;!. is spelled how?
21 MS. GRAMLING: S-o-l-l.
22 TilE COURT: Okay. And that cite is what?
23 MS. GRAMLING: 429 Pa.Super. 312, 632 A.2d
24 581 and 584.
.oS THE COURT: What year is that?
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1 MS. GRAMLING: 1993.
2 THE COURT I Okay.
3 MS. GRAMrJING: This is, private agreements
4 for support are governed by the law of contract and are
5 enforceable in an action in assumpsit or equity by specific
6 performance. Also in these cases, it states that, the
7 wif.e's action of filing for modifications does not vitiate
8 the original agreement. That's in these cases where you
9 have t)1e cites, as well as I would like to submit to you,
10 Swartz v. Sw~. It, is also very pertinent to this, and I
11 have that to give to you, Your Honor.
12 THE COUR1': What's the cite for Swartz v..
13 Swartz?
14 MS. GRAMLING: 689 A.2d 302, 456 Pa.Super. 16
15 Super. 1997.
16 THE COURT: And what does Swar1z. hold'?
17 MS. GRAMLING: Pardon me?
18 THE COURT: What does that case hold?
19 MS. GRAMLING: That case is pretty much the
20 same as the ~~ case in that the Court indicates that a
21 private agreement can be upheld if it is not, merged. 1'hen
22 also in this one case, really one important thing I want to.
23 say here that is quoted in this, the copies I have, is that,
24 at one point the Supreme Cour.t of Pennsylvania stated that
25 they were of the opinion that, if private agreements are not
52
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1 enforceable as contracts, that future agreements would be
2 illegitlmized and encourage a party to promise anything to
3 obtain a divorce, knowing that they would never be bound by
4 it, and they could apply for modification at the earliest
5 possible, legally allowable time, which is precisely what
6 the Defendant did, beginning with the original property
7 settlement agreement.
8 THE COURT: All right.
9 MS, GRAMLING: So the Supreme Court is
10 clearly seeing the error of letting these things be
11 mandy-pandy modi fiable . They amount to nothing.
12 THE COURT: Okay. We'll tilke a brief recess,
13 and I'll look at some of these cases.
14 MR. ABRAHAM: Your Honor, could I just make a
15. quick response?
16 THE COURT: Sure.
17 MR. ABRAHAM: The destination that's being
18 left out of the Swartz case is that it is only applicable, a
19 private agreement rationale is only applicable if the
20 agreement is not merged into the divorce decree. And that's
21 the big destination in this case. This ilgreement was not
22 merged into the divorce decree or -- excuse me, did merge
23 into the divorce decree as it was incorporated, and the
24 language, but not merge, was not on there.
25 Finally, Your Honor, as to the modification,
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1 I again direct the Court to Section 3105(b), which clearly
2 says, a provision of an agreement regarding child support,
3 visitation or custody shall be subject to modification by
4 the Court upon the showing of changed circumstances. And
S the enforcement of that, Judge, is whether or not the
6 agreement has been merged or incorporated.
7 THE COURT: You gave a section, but I don't
8 know what statute you're citing.
9 MR. ABRAHAM: I'm sorry, Your Honor. It's
10 Title 23, Section 3105 (a), (b), and (c).
11 THE COURT: Okay. All right. We'll take a
12 brief recess.
13 (Whereupon, a recess was taken at 3:14 p.m.
14 and proceedings reconvened at 3: 25 p. m. )
15 THE COURT: We will let the record indicate
16 that the Court has reconvened in open session. I am not
17 prepared at this time to rule that the Plaintiff could not
18 recover as a matter of law, so I will deny the demurrer
19 without prejudice to the Defendant's right to continue to
20 argue this point in this case. Mr. Abraham.
21 MR. ABRAHAM: Mr. Gramling. Judge, Melissa
22 Heckard indicated she would need 15 minutes to get here.
23 THE COURT: Would you need her for anything
24 since we have established that the amount of the shortfall,
25 if the contract is enforceable, is $32,200.00?
54
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1 MR. ABRAHAM: Well, only to testify that her'
2 decision recently was b<lsed upon Mr. Gramling's change in
3 circumstances and/or that her review of the file indicated
4 that the changes in the amounts of the support order were
5 based upon change of circumstances, which compHes with my
6 argument based on 3~05(b). That's the only additional thing
7 I would ask her to testify to.
8 THE COURT, Well, she doesn't make decisions.
9 In other words, all a support or Domestic Relations officer
10 can do is, prepare a recomtnended order for the Court to
11 sign. All of the orders would have been signed by a judge.
12 If you want to have her on the stand, you can certainly call
13 her from this phone here and bring her up.
14 MR. ABRAHAM: Very well,
15 THE COURT: If you feel it will be in the
16 next 15 minutes you will be calling her, we should call her
17 now.
18 MR. ABRAHAM: We can go ahead and do that.
19 (Whereupon, Mr. Abraham telephone Ms.
20 Heckard. )
21 Whereupon,
22 MARK WADE GRAMLING
23 having been duly sworn, testified as follows:
24 DIRECT EXAMINATION
25 BY MR. ABRAHAM:
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Q Mark --
THE COURT: LeI:' s get his full nllme again for
the record.
MR. ABRAHAM: I'm sorry, YOUr Honor.
'I'HE COURT: That's okay.
THE WITNESS: Mark Wade Gramling.
BY MR. ABRAHAM:
Q And what is your present residence?
A 201 Modena Drive, Cary, North Carolina.
Q How long have you been residing there?
A Since August of 1997.
Q Where did you reside before that?
A I resided at Route 1, Boy. 28Q in Wiley Ford,
West Virginia.
Q And before that, was that in Maryland?
A Well, that was 14aryland.
Q Oh, that is Maryland, okay. All right. And
then prior to that, where did you reside?
A Ephrata, Pennsylvania.
Q Now, Mark, let's get right to the -- we've
touched briefly on some chronology here, but let's get to,
what I would SUbmit is, the important elements. Let's go to
the 1987 property settlement agreement. Do you remember
what that agreement was about?
A We had sold the house, and that was, to the
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agreement?
A
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to?
A
23 A Yes.
24 Q Do you remember if Mrs. -- Ms. Gramling was
25 represented by counsel at that time?
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A Yes, she was.
Q All right.
THE COUR'f: There is a counsel's name on the
1989 agreement, isn't there?
MR. ABRAHAM: That's what I was looking for,
Judge, I thought it was on here.
THE COURT: It's signed as a witness, I
beHeve.
MR. ABRAHAM: That's right.
THE WI'rNESS: I believe that was ata
Master's office. I don't believe that was her attorney.
BY MR. ABRAHAM:
Q Well, let me direct your attention to
Plaintiff's Exhibit NO.1. Is that your signature and Ms.
Gramling's signature?
A Yes.
Q Okay. Do you see the witness to Ms.
Gramling's signature?
A Yes.
Q Does that say, Kathleen Carey Daley?
A Yes, it does.
Q Do you know that Kathleen Daley is an
attorney in Harrisburg?
A
Q
If she
Okay.
is, it's news to me.
I can assure you that she is.
Why was
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this modifiable, Mr. Gramling? Why was the child support
modifiable?
A Depending on circumstances and earning
capacity, it was something that really needed to be
modified.
Q
A
modification.
Q Describe to the Court what types elf changes
in your circumstances you had which compelled you to file
petitions to modify the support amounts stated in paragraph
one of the '89 agreement?
A Basically, I found myself without a job.
Q Okay. Currently, what is your job?
A I am a project manager for a construction
Did your circumstances change since 19897
Yes, that's why I had filed for a
company.
Q All right. And has your income been
determined recently by Domestic Relations?
A I think as recently as in the fall sorn'etime,
I believe.
Q Yeah, the order you appealed was August of
1998, correct?
A COtTect.
Q And I believe you currently are ordered to
pay about $570.00, is that right?
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I believe so. That sounds close.
Q
I'm looking for the present order, which I
3 believe Mra. Heckard can provide, Your Honor. Insofar as,
4 just very briefly, the appeal of your arrearage amount, what
5 do you understand your arrearages to presently be?
6
A
I believe my arrearages currently are
8
7 $2500.00, $2600.00.
9 as well?
10
11
Q
Okay. aut you agree to an additional amount
A
Correct.
Q
All right. So what do you understand your
12 arrearages to be at this point?
13
A
Around $4000.00, $4200.00, because I agreed
14 to make the tuition payment to Marcel's school a gift.
15
Q
16 Plaintiff's Exhibit NO.1 again. Just look through the
Okay. I'm going to have you look through
17 child support provision again, Mr. Gramling, and I want to
18 direct your attention to paragraph three, the alimony
19 provision, Do you have that in front of yOU?
21
20 A Yes, sir.
Q
22 right?
23
A
24
Q
" "
L.,J
right?
.......--
Okay. Portions of that were modifiable,
Correct.
And portions of that were not modifiable,
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A Pardon me?
Q Portions of that were not modifiable?
A Correct.
Q The term was not modifiable, right?
A Correct.
Q But the amount was?
A Yes, sir.
Q Okay. And as you read paragraph one, is
there anything there, do you see the word, non-modifiable,
anywhere in paragraph one'?
A No.
Q Finally, again, what was your understanding?
A My understanding?
Q Strike that. Let me back up. How many times
do you recall since 1989 that you may have petitioned for a
decrease?
A I think, when I became unemployed.
Q Okay.
A I believe I did. And I don't recall looking
for a decrease after that other than my appeal to the
modification in Allegany County.
Q Now the modification in Allegany County was
one, so to speak, in your favor because you went from a
$900.00 amount to $600.00, right?
A Right.
61
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1 Q And Ms. Gramling at that point I she then
2 qppeal~d she filed the same kind of appeal in Cumberland
3 County, right?
4 A Correct.
5 Q Okay. And during -- until that decision was
6 rendered in Allegany County, did Ms. Gramling eVer file a
7 lawsuit to enforce this agreement?
e A No.
9 Q Okay. Was it after she lost in both Counties
10 that this became fruitious?
II A This is the first time this has happened.
12 Q Okay. Why do you think Ms. Gramling filed
13 this lawsuit, Mr. Gramling?
14 A I believe she filed this lawsuit basically
15 because she's not having any luck with Domestic Relat.ions.
16 MR. ABRAHAM: Nothing further, Judge.
17 THE COURT: Me. Gramling.
18 CROSS EXAMINATION
19 BY MS. GRAMLING:
20 Q Mr. Graml ing, you indicated that you asked
21 for decreases because your circumstances changed?
22 A Correct.
23 0 Is that Correot? Can you tell the Court
24 under what oondition YOur circumstances changed? What
25 happened to your job at Stabler Construction Company where
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1 you Were employed when we were married and the birth of our
2 chHd?
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A What happened to my job?
Q Yeah, how did you leave that job? What
happened to that job?
A I quit.
Q And then you went to work for Wintermyer.
Can you tell the Court how you lost that job at Wintermyer?
A I quit.
Q Can you tell the Court how you lost the job
at Mar Allen?
A The Company was going under, quote, unquote,
a reorganization, and I no longer fit in.
Q Can you tell the Court where you worked after
that?
A It was, I believe that oCcurred in December,
which is a very difficult time of year to find employment in
my line of work in this part of the country, and during the
COUrse of pursuing employment, my father retired from the
Pennsylvania Department of Transportation, and he and I
pursued the notion of starting our own business.
Q What happened with that?
A We were unable to get financing.
Q And then where were you employed after that?
A I was affIliated and working for Ameridom.
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Q And do you recall a company named VE
Engineering?
A Yen, while I WIlS -, after my father's and my
business did not take off, I went to work for a consulting
engineering flrm which wan VI~ I~nglrlflering.
Q And then thor'I1 wun a '['W Consultant?
A Youh, t:hut Waf).
Q What hllppnned to those two jobs?
A I waa laid off ut the end of the construction
season, and J waf! I'fll1l1'11d In the spring when weather broke
and we could go buck t:o work in the construction industry.
Q Did you work at all in between
nm COURT: Wait, You have to let him finish
his answer or the record will be confused.
MS. GRAMLING: I'm sorry.
BY MS, GRAMLING:
Q Go ahead. Finish.
A I was recalled to go back to work the
following season once weather would allow construction to
take place in Pennoylvania.
Q /low about, wlmn did you go to work for
Resetar Asphalt? Can you tell us about that job?
A 1 went to work for Resetar Asphalt Paving on
a oonsulting biwiu whIle I was trying to start my own
bllflinetJ~1 ,
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that job?
A
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Q Did you soek employment and try to make an
effort to continua to pay child SUpport during those
pet'iods?
^ 1 did,
Q You were employed between the entire summel:'
of 1992 to '9:n
^ 1 believe that -- 1992 to 1993, I believe
that WlHJ tho p(~riod of time that my dad and I were working
vigorounly on getLln9 our own bUBlness going. I believe we
took out a loan BO I could continue to pay support, and I
dld connulting jobs so 1 could continue to make __
Q That was immediately following your job at
ReLletar, was it not, that summer, and were you able to
collect unemployment?
A No, 1 was not able to collect unemployment.
Q Why were you not able to collect
unemployment '/
A I don't believe I even attempted to try to
collect unemployment.
Q Weren't you employed as a private consultant
with Resetar?
A
Q
unemployment?
A
Well, that's correct. I stated that earlier,
Which meant that you weren't eligible for
That's correct.
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1 Q And isn't it true that, during that period of
2 time, no child support was forthcoming, and myself and your
3 daughter were on welfare?
4 A That could very well be correct.
5 Q So when you applied for these decreases, you
6 testified to your attorney to his questions thiit you applied
7 for these decreases primarily because your circumstances
8 changed. And those circumstances are, as you recalled,
9 Stabler, you quit; Wintermyer, you quit; Mar Allen, you sort
10 of quit; IA Construction, you more or less quit. You didn't
11 apply for unemployment. And the first decrease, the very
12 first one, the first time 190 was changed to whatever it
13 was, was not because of the change of circumstances in your
14 job, okay, as you testified, that always you did it because
15 of circumstances in your job, the first one __
16 'rHE COURT: Wait. This question is
17 completely out of control.
18 BY MS. GRAMLING:
19 Q The question is, why did you apply for a
20 decrease in the first one, the first time you asked for a
21 reduction of the 190, do you recall that?
22 A I believe it was a result of my employment
23 conditions at that time.
24 Q That's the one that we need the opinion of
25 JUdge Morrison.
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1 A 1'hat' s the one where right before Christmas,
2 I was told by the owner that my E1erviceEl were no longer
3 fitting into the scheme of things, and that's why I asked
4 for a modification.
5 Q Are you awaI'e that in the State of
6 Pennsylvania that, child support can be -- is determined by
7 the earning capacity of the obligor and not necessarily what
8 he is earning?
9 MR. ABRAHAM: I'll object to that question,
10 Judge. He's not a legal authority on any of this.
11 THE COURT: Sustained.
12 BY MS. GRAMLING:
13 Q Did you continue to make every effort that
14 you possibly could as a grown man, human being to continue
15 to pay child support to help with the support of your
16 daughter in the last 12 years?
17 A Yes, I did, to the point where I had an
18 accident at one time where I fell down a flight of steps,
19 broke my wrist, dislocated my shoulder, and about a week or
20 two weaks after my cast was off, I took a job loading trucks
21 at a truck dock so I could maintain support payments to my
22 daughter.
23 MS. GRAMLING: Your Honor, can I introduce an
24 exhibit at this time?
25 THE COURT: Sure.
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1 circumstances for him not being able to pay, and I'm
2 rebutting them, that they aren't always as he presented it.
3 THE COURT: Mr. Abraham.
4 MH. ABRAHAM: Well, again, Your Honor, this
5 has to do specifically with a contempt proceeding that
6 occurred back in 1993, and I submit that, insofar as that
7 partiCUlar document is concerned, it's just not relevant to
8 the issue that was addressed by the Defendant on direct
9 examination.
10 THE COURT: What is your point in bringing
11 out theRe -- this past history on the support orders? Well,
12 you may ask the question.
13 MS. GRAMLING: Pardon me?
14 THE COUR'I': You may ask the question. We
15 have about half an hour left.
16 BY MS. GRAMLING:
17 Q Could you please ident ify this document,
18 please?
19 A It says, Proceedings, Monday, March 22, 1993.
20 Q And the first page?
21 A It's a transcript of proceedings.
22 Q Now will you read this to the Judge, please?
23 A The Court: Mr. Gramling, I reviewed your
24 file and frankly, I am of the opinion and I reviewed the
25 Domestic Relations file, that you are in contempt of this
70
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1 court and we are going to sentence you to confinement in the
2 Dauphin County Prison for not less than thirty days nor more
3 than six months.
4 Q Thank you. Is this not the result of a
5 hearing brought about by my action for your being unemployed
6 and paying no child support at all?
7 A That's correct.
8 Q And after which time, you got a job to keep
9 from going to jail?
.10 A Well, I also just got a cast off my arm and
11 was able to go back to work. I was unemployed at the time.
12 THE COURT: Let's I'll tell you what.
13 Let's move along. We're keeping Ms. Heckard here. The
14 issue in this case is very simply, was there a breach of a
15 contract not has this gentleman properly been found in
16 contempt in the past. I assume he has.
17 MS. GRAMLING: Your Honor, I just wanted
18 if he's going to introduce evidence that this man had
19 decreases for justifiable reasons, I need to rebut that he
20 did not have decreases for justifiable reasons. He quit
21 jobs. He didn't make an effort to get jobs. He had jobs
22 that he made arrangements where when he did get fired or he
23 quit, he couldn't collect unemployment.
24 They were long periods of time, and we got no
25 child support at all. He has not fulfilled his obligation
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1 in any way, shape, or form. If we're going to continue this
2 line of argument, then I need to rebut these poor dear
3 circumstances of why he couldn't comply.
4 THE COURT: What you presented is not -- has
5 nothing to do with decreases or increases. It's apparently
6 a finding of contempt for not obeying an order. But anyway,
7 you've gotten it in. Let's move on.
8 MS. GRAMLING: Do you want me to continue
9 with this or not?
10 THE COURT: It's not helping me, I'11 be
11 honest with you. I think you have a very simple legal issue
~2 here, and it's getting clouded by --
13 MS. GRAMLING: Then I think I probably said
14 enough anyway to indicate that he wasn't making an honest
15 effort to pay child support, so I will be finished with
16 asking questions of the witness.
17 THE COURT: Okay. Mr. Abraham, anything
18 further?
19 MR. ABRAHAM: Nothing you haven't heard,
20 Judge.
21 THE COURT: Okay. Thank you. You may step
22 down.
23 MR. ABRAHAM: Call Melissa Heckard.
24 Whereupon,
25 MELISSA HECKARD
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having been duly sworn, test~fied as follows I
DIRECT EXAMINATION
BY MR. ABRAHAM:
Q Ms. Heckard, state your full name for the
record, please.
A Melissa Heckard.
Q And where do you reside?
A Carlisle.
Q Okay. What is your posiUon through your
employment?
A I'm a conference officer wJ,th Cumberland
County Domestic Relations.
Q When did you first become familiar with the
Domestic Relations proceeding in this caSe, and please feel
free to refer to your documents. Can you describe to the
Court what you have here?
A This is the Domestic Relations file
associated with this case.
Q Okay.
A This was originally an interstate case, so it
was handled by a different department in our office when it
was registered here officially. And Mr. Gramling submitted
to our jurisdiction without us having to transfer the case
to his state of residence, and che case was assigned to me.
Q When did the interstate --
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1 A It was sometime in the early summer of ' 98.
2 Q Of' 98?
3 A When he acnepted our jurisdiction and became
4 officially, totally Cumberland County's case.
S Q Okay. Prior to that, were payments being
6 made through Cumberland County through URESA?
7 A Payments were going to Cumberland, Maryland,
o and then being forwarded to Cumberland County Domestic
9 Relations and then forwarded to the Plaintiff.
10 Q Now are you aware of the proceedings in
11 Maryland as to modifications of the agreement?
12 A Somewhat.
13 Q Okay. And what chronology can you provide
14 for the Court as to when this thing, when the child support
15 amount was modified in Maryland?
16 A The order was registered to Pennsylvania at
17 the amount of 913 a month.
18 Q Was that Cumberland County?
19 A It was registered to Cumberland County from
20 Maryland at 913 a month.
21 Q Okay. Net. l,et me stop you there.
22 THE COURT: When was that?
23 MS. GRAMLING: February Sth, 1997.
24 THE WITNESS: That was when it was registered
25 to Pennsylvania for enforcement.
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(1""',
1 THE COURT I WaJ t. I'm sure that wasn't taken
2 down because Ms. Gramling isn't a witness. What is the date
3 that was registered in PennsylvanJa? If you don't know,
4 that's perfectly all right.
5 THE WITNESS: It was I'egistered in June of
6 '98 when it became totally our case. I am not sure when it
7 was registered here for enforcement only from Maryland.
8 BY MR. ABRAHAM:
9 Q All right. From your record, can you
10 ascertain or can you confirm for the Court that Ms, Gramling
11 had filed petitions to modify the child support amount?
12 A In Maryland or in Cumberland County?
13 Q Let's start with Maryland.
14 A There was - - I know there were modifications
J.5 requested by the Plaintiff prior to Cumberland County
16 accepting jurisdiction.
17 Q Okay.
18 A Just on a quick review while I was sitting
19 back there, the Plaintiff, and this was not a total review,
20 I just glanced through __
21 Q Understood.
22 A Plaintiff riled for review on June 23rd of
23 1993, June 3rd of 1996; and then in Cumberland County, there
24 was a petition to modify by the Plaintiff on July 1st, 1998.
25 Q Okay. So there was one in '93, another one
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in '96, a second une in '96, and then
A No, '93, '96, and '98.
Q And '98. So there were three times since
1996 that your record indicates, actually since 1993, that
your record indicates. Do you have any other information
there about custody modifications pursuant to marital
settlement agreements in your file?
A We don't -- we are not generally involved in
custody, 80 that information is generally not copied to our
office.
Q Okay. Are you aware of a,ny stipulations
since 1993 in your record or the prior record as to
agreements of the parties reaching an agreement on child
support?
A There was a stipulation in May of '96. Let
me just find it. The Plaintiff stipulated to arrearages and
to a credit on the account as far aa child support,
stipulated an arrearage amount.
Q So that was a stipulation based upon an
arrearage, but that had solely -- that arrearage was based
upon a Domestic Relations calculation, correct?
A Correct.
Q It was not related to any kind of matrimonial
agreement?
A As far as we know, no.
76
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1 based on the Plaintif f' EI new current salary, the Defendant / s
2 new current salary, plus fringe benefits, including company
3 aontributions to car payments, bonuses, and expenses paid
4 THE COURT: Wait. That's too fast for the
5 stenographer.
6 THE WITNBSS: I'm sorry. Including company
7 contributions to car payments, bonuses, and expenses paid by
8 the employer be used as the basis for child support
9 calculations; and that the Pennsylvania court request salary
10 verification from Defendant and his employer; the
11 Defendant's credit for health insurance be removed from the
12 calculations, and she stated that was 210 monthly; the
13 Plaintiff/s payments for health insurance for dependent
14 child be put into the calculations, 285 monthly; and that
15 regardless of the Maryland Court of Special Appeals ruling,
16 that Defendant pay private school tuition portion left out
17 after scholarship, that Cumberland County review legally to
18 add. She requested a modification upwards to the tuns of
19 $390.00 per week, $190.00 as agreed to, $100.00 towards
20 arrearages, and $100.00 for Linden Hall private school
21 tuition.
22 BY MR. ABRAHAM:
23 Q I think you just ran down about six different
24 factors that form the basis of that modification, and then,
25 of course, after she filed the April lawsuit, she included
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A $526.64 a month on current support, $150,00 a
month on arrearages, and there is a medical account, an
order was entered adding $613.88 to his arrearages for
medical bills, and he's paying $50.00 a month on those, so
the total he is paying each month is $726,64.
Q $726.64?
A Right.
Q Okay. And let's talk about your arrearage
calculation. I believe you did an audit of all that, right?
A Yes.
Q And that brought it up to date from __
A I did it as of yesterday.
Q All right.
A I brought it up-to-date as of yesterday.
Q And incorporated in that audit is just about
everything from day one, is that accurate to say?
A The audit goes from January of '96 -- I gave
you the audit, so I don't have it in front of me. January
of '96. And at that point there was a statement, I believe
it was in a court order, that the arrearages on child
support were set at --
Q The current arrearage is what, 4000
something?
A
Q
You have it.
Oh, I'm sorry.
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A Current arrearage on child support, $2595.69,
and there is still $463.88 left on the medical.
Q Okay. All right. Finally, Ms. Heckard, is
the current amount based upon your analysis of income,
earning capacities, and all the Domestic Relations factors
that are standard in these orders?
A Yes.
MR. ABRAHAM: Nothing further, Judge.
THE COURT: Ns. Gramling.
MS. GRAMLING: I have only one question.
CROSS EXAMINATION
BY MS. GRAMLING:
Q Do you recall our conversation about why,
after 12 years, I decided to take on the medical insurance
myself?
A You indicated that the Defendant had not
provided you with verification of the medical insurance, I
believe, and you did not have access to the insurance
information to use it for Marcel.
Q Right.
MS. GRAMLING: Thank you. That's all, Your
Honor.
THE COURT:
MR. ABRAHAM:
THE COURT:
Mr. Abraham.
Nothing further, Judge.
You may step down, and you're
81
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1 excused.
2 MR. ABRA"IAM l And that's our case, Your
3 Honor.
4 THE COURT: Okay. Ms. Gramling, do you have
5 any further testimony to present?
6 MS. GRAMLING: No. I'm finished, Your Honor.
7 THE COURT: Do you want to move the admission
o of Plaintiff's Exhibit 5?
9 MS. GRAMLING: Yes.
10 THE COURT: Mr. Abraham.
11 MR. ABRAHAM: Again, just for the record,
12 Your Honor, I'll object to the relevance of that particular
13 document.
14 THE COURT: All right. Plaintiff's Exhibit 5
15 is admitted.
16 (Whereupon,
17 Plaintiff's Exhibit No.5
18 was admitted into evidence.)
19 THE COURT: We'll enter this order.
'20 (Whereupon, the following Order of Court was
21 entered. )
22 ORDER QF COURT
23 AND NOW, this 4th day of March, 1999, upon
24 consideration of the Plaintiff's complaint in the
25 above-captioned matter, and following a nonjury trial, the
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C E R T I FIe A T ION
I hereby oertify that the prooeedings are contained
fully and accurately in the notes taken by me on the above cause
and that this is a correct transcript of same.
-----------------------------
The foregoing record of the prooeedings on the hearing
of the within matter is hereby approved and direoted to be
filed.
A
Oat