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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
STATE OF
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JAY S. STEWART,
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PENNA.
Plaintiff NO.
00-5784 CIVIL TERM
. VERSUS
. JOYM. STEWART,
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Defendant
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AND NOW,
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DECREED THAT
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AND
DECREE IN
DIVORCE
dl(: 'ft A.M
2002
IT IS ORDERED AND
tJ ~,)(.
JAY S. STEWART
, PLAINTIFF,
JOY M. STEWART
, DEFENDANT,
ARE DIVORCED FROM THE BONDS OF MATRIMONY.
THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE
BEEN RAISED OF RECORD IN THIS ACTION FOR WHICH A FINAL ORDER HAS NOT
YET BEEN ENTERED; None.
It is further ORDERED, ADJUDGED and DECREED that the terms, provisions and conditions
of the Separation and Property Settlement Agreement between the parties dated September 2!,
2000 and the Amendment to Separation and Property Settlement Agreement dated December 8,
200!, are incorporated in this Decree in Divorce ren s fully as if the same were set
fo
survive this Decree in Divorce.
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ATTEST:
ROTHONOTARY
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
JAY S. STEWART,
Plaintiff
v.
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NO. 00-5784 CIVIL TERM
JOYM. STEWART,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
PRAECIPE TO TRANSMIT RECORD
TO THE PROTHONOTARY:
Transmit the record, together with the following information, to the court for entry of a divorce
decree:
1. Ground for divorce: Irretrievable breakdown under {l3301(d) of the Divorce Code.
2. Date and manner of service of the complaint: Certified mail, return receipt requested,
signed on August 24, 2000. Affidavit of Service being filed contemporaneously herewith.
3. Date of execution of the affidavit required by {l3301(d) ofthe Divorce Code:
September 16, 2002; date of filing and service of the plaintiffs affidavit upon the
respondent: filed September 19,2002; served by mail on September 18, 2002.
4. Related claims pending: All claims resolved by the parties' Separation and Property
Settlement Agreement of September 21, 2000 and Amendment thereto of December 8,
2001.
5. Date and manner of service of the notice of intention to file praecipe to transmit
record, a copy of which is attached: Served by mail on October 7,2002.
Date:
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en J. Holst, sqmre
HOWETT, KISSINGER & CONLEY, PoCo
130 Walnut Street
P. O. Box 810
Harrisburg, P A 171 08
Telephone: (717) 234-2616
Counsel for Plaintiff Jay S. Stewart
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IN THE COURT OF COMMON PLEAS OF CillvffiERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
Plaintiff
v.
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NO. 00-5784 CIVIL TERM
JOYM. STEWART,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
NOTICE OF INTENTION TO REQUEST ENTRY
OF 6330Hd) DIVORCE DECREE
TO: Joy M. Stewart, Defendant
3074 Bumblebee Road
Accident, MD 21529
You have been sued in an action for divorce. You have failed to answer the complaint or
file a counter-affidavit to the ~3301(d) affidavit. Therefore, on or after October 27, 2002, the
other party can request the court to enter a final decree in divorce.
If you do not file with the prothonotary ofthe court an answer with your signature
notarized or verified or a counter-affidavit by the above date, the court can enter a final decree in
divorce. A counter-affidavit which you may file with the prothonotary of the court is attached to
this notice.
Unless you have already filed with the court a written claim for economic relief, you must
do so by the above date or the court may grant the divorce and you will lose forever the right to
ask for economic relief. The filing of the form counter-affidavit alone does not protect your
economic claims.
YOU SHOULD TAKE TIDS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOrHA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
Telephone: (717) 240-6200
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
JAY S. STEWART,
Plaintiff
v.
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NO. 00-5784 CIVIL TERi\1
JOYM. STEWART,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
COUNTER AFFIDA VIr UNDER S3301( d) OF THE DIVORCE CODE
1. Check either (a) or (b):
_(a) I do not oppose the entry of a divorce decree.
_(b) I oppose the entry of divorce decree because
(Check (i), (ii) or both):
_(i) The parties to this action have not lived separate and apart for a period of at least
two years.
_(ii) The marriage is not irretrievably broken.
2. Check either (a) or (b):
_(a) I do not wish to make any claims for economic relief. I understand that I may lose
rights concerning alimony, division of property, lawyers fees or expenses if! do
not claim them before a divorce is granted.
_(b) I wish to claim economic relief which may include alimony, division of property,
lawyers fees or expenses or other important rights.
I understand that in addition to checldng (b) above, I must also file all of my economic
claims with the prothonotary in writing and serve them on the other party. If! fail to do so
before the date set forth on the Notice of Intention to Request Divorce Decree, the divorce decree
may be entered without further delay.
I verify that the statements made in this Counter Affidavit are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. g4904
relating to unsworn falsification to authorities.
Date:
Joy M. Stewart, Defendant
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
JAY S. STEWART,
Plaintiff
NO. 00- !'7P"{
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vs.
CIVIL ACTION - LAW
JOY M. STEWART,
Defendant.
IN DIVORCE
NOTICE TO DEFEND AND CLAIM RIGHTS
You have been sued in Court. If you wish to defend against the claims set forth in
the following pages, you must take prompt action. You are warned that if you fail to do
so, the case may proceed without you and a Decree of Divorce or annulment may be
entered against you by the Court. A judgment may also be entered against you for any
other relief requested in these papers by the Plaintiff. You may lose money or property or
other rights important to you.
When the grounds for the divorce is indignities or irretrievable breakdown of the
marriage, you may request marriage counseling. A list of marriage counselors is available
in the Office of the Prothonotary at the Cumberland County Court House, Carlisle,
Pennsylvania 17013.
IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF
PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR
ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY
OF THEM.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
CAN GET LEGAL ASSISTANCE.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
Telephone: (717) 249-3166
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AVISO PARA DEFENDER Y RECLAMARDERECHOS
USED HA SIDO DEMANDADO EN LA CORTE. Si desea defederse de las
quejuas expuestas en las paginas siquientes, debe tomar accion con prontitud. Se Ie avisa
que si not se defiende, el caso puede proceder sin usted y decreto de divorcio 0
anulamiento puede ser emitido en su contra por la Corte. Una decision puede tambien ser
emitida en su contra por cualquier otra queja 0 compensacion reclamados por el
demandante. Usted puede perder dinero, 0 propiedades y otros derechos importantes para
usted.
Cuando la base para el divorcio es indignidades 0 rompimiento irreparable del
matrimonio, usted puede solicitar consejo matrimonial. Una lista de consejeros
matrimoniales esta disponible en la oficina del Prothonotary, en la Cumberland County
Court House, Carlisle, Pennsylvania 17013.
SI USTED NO RECLAMA PENSION ALIMENTlCIA, PRGPIEDAD
MARITAL, HONORARIOS DE ABOGADO Y OTROS GASTOS ANTES DE QUE EL
DECRETO FINAL DE DIVORCIO 0 ANULAMIENTO SEA EMITIDO, USED
PUEDE PERDER EL DERECHO A RECLAMAR CUALQUIERA DE ELLOS.
USTED DEBE LLEVAR ESTE PAPEL A UN ABOGADO DE INMEDIATO. SI
NO TIENE 0 NO PUEDE PAGAR UN ABOGADO, VAYA 0 LLAME A LA OFICINA
INDICADA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER AS1STENCIA
LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
Telefano: (717) 249-3166
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
JAY S. STEWART,
Plaintiff
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vs.
CIVIL ACTION - LAW
JOY M. STEWART,
Defendant
IN DIVORCE
COMPLAINT IN DIVORCE
AND NOW, this I~day of August, 2000, comes the Plaintiff, Jay S. Stewart,
by his attorney, G. Patrick O'Connor, Esquire, Office ofG. Patrick O'Connor, Esquire,
and files the following Complaint in Divorce whereof the following is a statement:
1. The Plaintiff, Jay S. Stewart, is an adult individual who currently resides at 3808
Chippenham Road, Mechanicsburg, Cumberland County, Pennsylvania 17055.
2. The Defendant, Joy M. Stewart, is an adult individual who currently resides at
3808 Chippenham Road, Mechanicsburg, Cumberland County, Pennsylvania 17055.
3. The Plaintiff and Defendant were married on or about April 21, 1995, and
separated on or about June 28, 2000.
4. The Defendant has been a bona fide resident of the Commonwealth of
Pennsylvania for at least six (6) months immediately previous to the filing of this
Complaint.
5. There have been no prior actions .of divorce or annulment between the parties.
6. The Plaintiff has been advised of the availability of counseling and the right to
request that the Court require the parties to participate in counseling.
7. Both the Plaintiff and Defendant are sui juris and are citizens of the United States.
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8. The Plaintiff avers as the grounds upon which this action is based is that the
marriage between the parties hereto is irretrievably broken.
WHEREFORE, the Plaintiff request your Honorable Court to enter a decree
divorcing the Plaintiff and Defendant absolutely.
COUNT I
CLAIM FOR EQUITABLE DISTRIBUTION UNDER
SECTION 3502 OF THE DIVORCE CODE
9. Paragraphs I through 4 of this Complaint are incorporated herein by reference as
though set forth in full.
1 O. The Plaintiff and Defendant have acquired property during their marriage, which is
subject to equitable distribution by this Court.
11. The Plaintiff and Defendant have been unable to agree as to an equitable
distribution of said property.
WHEREFORE, Plaintiff requests this Honorable Court to divide all marital
property pursuant to Section 3501 and 3502 of the Divorce Code prior to the entry of the
final divorce decree.
Respectfully submitted,
. Patrick O'Connor, Esquire
3105 Old Gettysburg Road
Camp Hill, PA 17011
(717) 737-7760
ID No. 64720
Attorney for the Plaintiff
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
JAY S. STEWART,
Plaintiff
NO.
vs.
CIVIL ACTION - LAW
JOY M. STEWART,
Defendant
IN DIVORCE
AFFIDAVIT OF MARRIAGE COUNSELING
Jay S. Stewart, being duly sworn according to law, deposes and says:
I. I have been advised of the availability of marriage counseling and understand that I
may request that the court require that my spouse and I participate in counseling.
2. I understand that the court maintains a list of marriage counselors in the Office of the
Prothonotary, which list is available to me upon request.
3. Being so advised, I do not request that the court require that my spouse and I
participate in counseling prior to a divorce decree being handed down by the court.
I understand that false statements herein are made subject to the penalties of 18 Pa.
CoSo Section 4904, relating to unsworn falsification to authorities.
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JayS. Stewart
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Date: August 15,2000
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VERIFICATION
I, JAY S. STEWART, state that I am the PLAINTIFF in the above-captioned case
and that the facts set forth in the foregoing are true and correct to the best of my
knowledge, information, and belief. I realize that false statements herein are subject to
the penalties for unsworn falsification to authorities under 18 Pa.C.S. Sec. 4904.
Date: August 15, 2000
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
Plaintiff
v.
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)
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)
)
NO. 00-5784 CNIL TERM
JOYM. STEWART,
Defendant
CIVIL ACTION - LAW
IN DNORCE
AFFIDAVIT OF SERVICE
Darren J. Holst, being duly sworn according to law, deposes and says that he is an
attorney at law authorized to practice in the Commonwealth of Pennsylvania. On or after
August 22, 2000, G. Patrick O'Connor, Esquire served Defendant Joy M. Stewart with the
Complaint in Divorce by certified mail as he was, at that time, counsel for Plaintiff Jay S.
Stewart. The return receipt card was signed by Joy Stewart, marked as having been delivered to
her on Augnst 24, 2000, and is attached hereto and made a part hereof. The return receipt card
was part of Attorney O'Connor's file which was delivered to me as present counsel for Plaintiff.
arren J. H st, Esquire
HOWETT KISSINGER & CONLEY, PoCo
130 Walnut Street, P. O. Box 810
Harrisburg, P A 171 08
Telephone: (717) 234-2616
Counsel for Plaintiff Jay S. Stewart
SWORN TO AND SUBSCRIBED
of November, 2002.
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IlE9IlA M. SHIMp, ROTAIl'f Pll8lIC
em OF HARRISBURG, DAUPHIII couNtY
COMMISSION EXPIRES A 29 2005
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.:1 C~mplete items'1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
. Print your nall18 and address on the reverse
so that we can return the card to you.
. Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Article Addressed to:
x
o Agent
o Addressee
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D. Is deliveIy dress different from item 1?
If YES, ent r delivery address below:
3. Service Type
~Certified Mail
o Registered
o Insured Mail
o Express Mail
o Return Receipt for Merchandise
o C.O.D.
4. Restricted Delivery? (Extra ~ee)
Ves
2. Article Number (Copy from service label)
PS Form 3811, J~Iy.:N9.9.
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1Q259S-99-M-1789
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LAW OfFICES OF \'.
HOWETT, KISSINGER & CONLEY, P:C.
130 WALNUT STREET
POST OFFICE BOX 810
HARRISBURG. PENNSYLVANIA 17108
JOHN C. HOWElT, JR.
DONALD T. KISSINGER
CINDY S. CONLEY
DARREN 1. HOLST
(717) 234-2616
FAX (717) 234-5402
DEBRA M. SHIMP
Legal Assistant
November 4, 2002
Attention: GINA
Office of the Prothonotary
CUMBERLAND COUNTy COURTHOUSE
1 Courthouse Square
Carlisle, P A 17013
Re: Stewart v. Stewart
No. 00 - 5784 Civil Term
Dear Gina:
Enclosed for filing in the above-referenced matter please find the following documents
for entry of a fmal Decree in Divorce:
1. Affidavit of Service;
2. Vital Statistics Form;
3. Praecipe to Transmit Record;
4. Proposed Decree in Divorce Forms;
5. Copies of the parties' Separation and Property Settlement Agreement of
September 21, 2000 and Amendment thereto of December 8, 2002 for the
judge's review only (this should not be docketed but rather is for the
judge's review -- please return these copies to us along with the certified
divorce decree).
6. Pre-stamped envelope addressed to defendant; and
7. Self-addressed, pre-stamped envelope for return of certified divorce
decree.
Thank you for your assistance with this matter.
Sincerely,
~
C~himp
Enclosures
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANlA
JAY S. STEWART,
Plaintiff
v.
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)
NO. 00-5784 CIVIL TERM
JOY M. STEWART,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
NOTICE
If you wish to deny any of the statements set forth in this Affidavit, you must file a
Counteraffidavit within twenty (20) days after this Affidavit has been served on you or the
statements will be admitted.
PLAINTIFF'S AFFIDAVIT
UNDER &330Hd) OF THE DIVORCE CODE
1. The parties to this action separated on or about June 28, 2000 and have
continued to live separate and apart for a period of at least two (2) years.
2. The marriage is irretrievably broken.
3. I understand that I may lose rights concerning alimony, division of
property, lawyer's fees or expenses ifI do not claim them before a divorce is granted.
I verifY that the statements made in this Mfidavit are true and correct. I understand that
false statements herein are made subject to the penalties of 18 Pa. CoSo S4904 relating to unsworn
falsification to authorities.
Date:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
JAYS. STEWART,
Plaintiff / Petitioner
No. 00-5784 CIVIL TERM
vs.
CIVIL ACTION - LAW
JOY M. STEWART,
Defendant / Respondent
IN DIVORCE
ORDER
AND NOW, TO WIT, this;d'~ day of ~
, 2000, upon
consideration of the attached Petition for Entry of Agreement, it is hereby
.or
ORDERED and DECREED that the custody agreement dated the "t day of
September, 2000, is adopted as an Order of Court and the parties are bound thereby.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
,
PENNSYLVANIA
JAY S. STEWART,
Plaintiff / Petitioner
No. 00-5784 CIVIL TERM
vs.
CIVIL ACTION - LAW
JOY M. STEWART,
Defendant / Respondent
IN DIVORCE
PETITION FOR ENTRY OF AGREEMENT
1. Plaintiff/Petitioner is Jay S. Stewart, who resides at 3808 Chippenham Road,
Mechanicsburg, Cumberland County, Pennsylvania 17055.
2. Defendant / Respondent is Joy M. Stewart, who resides at 3808 Chippenham Road,
Mechanicsburg, Cumberland County, Pennsylvania 17055.
3. The parties are the natural parents of Justin James Stewart, seven years old, born on
July 10, 1993, and Joshua Hayden Stewart, 4 years old, born on May 8,1996.
4. On ~~ JI , 2000, the parties entered into an agreement regarding
custody, partial custody and visitation of the child, which is attached hereto and
incorporated herein as Exhibit "A."
5. The best interest of the child will be served by the Court's entering said custody
agreement as set forth as Exhibit "A" as an Order of Court.
,"
WHEREFORE, petitioner requests this Court to approve the foregoing
agreement and make it an Order of Court.
Respectfully submitted,
~~
/G. Patrick O'Connor, Esquire
3105 Old Gettysburg Road
Camp Hill, Pennsylvania 170 II
Telephone: 717-737-7760
J.D. No. 64720
Attomey for Petitioner
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EXHIBIT "A"
CUSTODY AGREEMENT
THIS AGREEMENT made and entered into this f<!1,f"'day of September, 2000,
by and between JAY S. STEWART, 3808 Chippenham Road, Mechanicsburg,
Cumberland County, Pennsylvania 17055, (hereinafter known as "Father") PARTY OF
THE FIRST PART, and JOY M. STEWART, of3808 Chippenham Road, Mechanicsburg,
Cumberland County, Pennsylvania 17055 (hereinafter known as "Mother"), PARTY OF
THE SECOND PART
WHEREAS, Father and Mother are desirous of providing for the shared custody
of their minor children, Justin James Stewart, seven years of age, and Joshua Hayden
Stewart, four years of age, hereafter known as "Children"; and
NOW, THEREFORE, THIS AGREEMENT WITNESSETH that for and in
consideration of the promises and covenants herein contained and intended to be legally
bound hereby, it is agreed by and between the parties hereto as follows:
1. CUSTODY AND VISITATION
A. Father and Mother shall have joint legal custody ofthe parties' minor Children
to the end that the parties shall share jointly the custodial responsibility for the
minor Children. By custodial responsibility, it is meant that the parties shall
share major decisions concerning education, medical care, and spiritual
upbringing. The parties hereby expressly agree and state that it is not possible
nor desirable to dissolve the parental relationship between the parties either as
to the minor Children or as to themselves. Therefore, the parties expressly
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state and agree that they wish to continue to be jointly, as well as severally,
responsible for the custody and upbringing of their Children.
B. The parties hereby designate Father to be primary physical custodian of said
Children during the school year, from September through May, subject to the
rights of partial custody in the Mother, as stated below. As a result of such
designation, Father, alone, shall have the right and duty to make all day-to-day
parental decisions and act as the primary care parent to the Child. Therefore,
Father may, on his signature alone, authorize emergency medical care for the
minor Children, authorize absences and special events for said Children in
school, and authorize the physician, dentist or other medical person to care for
said Children.
C. The parties hereby designate Mother to be primary physical custodian of said
Children during the summer vacation from school, from June through August
when school is not in session, subject to the rights of partial custody in the
Father, as stated below. While Mother has primary physical custody, Mother,
alone, shall have the right and duty to make all day-to-day parental decisions
and act as the primary care parent to the Children. Thus, Mother may, on her
signature alone, authorize emergency medical care for the minor Children, and
authorize the physician, dentist or other medical person to care for the
Children.
D. The party who does not have primary physical custody shall have visitation as
follows:
[a] Thursday evenings for a period of time to be mutually agreed upon
by the parties;
[b] Every other weekend for a period of time to be mutually agreed upon
by the parties;
[c] On major holidays, Christmas, Easter, the Childrens' birthdays,
Mother's Day and Father's Day and at all other times as mutually agreed
upon by the parties.
Consent for visitation shall not be unreasonably withheld.
2. CHILD SUPPORT
For the months in which Mother has primary physical custody of the minor
children, Father shall provide one thousand dollars ($1,000.00) directly to the Mother in
child support for each month until July, 2011. For the month of July, 2011, the child
support shall be in the amount of six hundred sixty-six dollars ($666.00). For each month
from August, 2011, in which Mother has primary physical custody of Joshua until such
time as Joshua reaches the age of 18, Father shall provide five hundred dollars ($500.00)
directly to the Mother for child support.
3. INCOME TAX EXEMPTION
The Father shall have the right to claim the Children as exemptions on his federal
income tax for all years in which the present agreement is in effect.
4. LEGAL COUNSEL
The Father is represented by the law office ofG. Patrick O'Connor, Esquire. The
Mother has had the opportunity and has been encouraged to retain and to have this
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agreement reviewed by the attorney of her choice. Each party agrees that he or she has
entered into this Agreement with a complete understanding of the contents thereof.
5. ENFORCEMENT
If either party breaches any provision of this Agreement, the other party shall have
the right, at his or her election, to sue for damages for such breach or to seek other
remedies or relief as may be available to him or her, and the party breaching this
Agreement shall be responsible for payment of reasonable legal fees and costs incurred by
the other in enforcing his or her rights under this Agreement. Failure to seek a remedy for
one or more breaches shall not be deemed a waiver of any subsequent breach.
6. ORDER OF THE COURT
The parties agree that this Agreement shall be entered as an Order of Court and
shall continue in full force and effect until (a) further Order of Court, or (b) written
stipulation of the parties.
7. ADDITIONAL INSTRUMENTS
Each of the parties shall from time to time, at the request of the other, execute,
acknowledge, and deliver to the other any and all further instruments that may be
reasonably required to give full force and effect to the provisions ofthis Agreement.
8. APPLICABLE LAW
The parties agree that, regardless ofthe child's residence or provisions of the
Uniform Child Custody Jurisdiction Act, Pennsylvania shall retain jurisdiction over the
custody of the minor Child as long as one or both parents reside with the Commonwealth.
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9. BINDING EFFECT
This Agreement shall be binding upon the respective parties, their heirs,
executors, administrators, successors and assigns.
10. ENTlREAGREEMENT
This Agreement constitutes the entire understanding of the parties and supersedes
any and all prior agreements or negotiations between them.
IN WITNESS THEREOF, the parties have hereunto set their hands and seals on
the day and year first above written.
(SEAL)
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JOY rJl STEWART
COMMONWEALTH OF PENNSYLVANIA )
: SS.
COUNTY OF CUMBERLAND )
On this, the 21 sr day of September, 2000, before me, a Notary Public in
and for the state and county aforesaid, the undersigned officer, personally appeared JOY
M. STEWART, known to me (or satisfactorily proven) to be the person described in the
foregoing instrument, and acknowledged that she executed the same for the purposes
therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
(SEAL)
Notarial Seai
William L. Grubb, Notary Public
Lower Allen Twp., Cumberland County
My Commission Expires Aug. 13, 2001
COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND )
On this, the ;;V"" day of September, 2000, before me, a Notary Public in
and for the state and county aforesaid, the undersigned officer, personally appeared JAY
S. STEWART, known to me (or satisfactorily proven) to be the person described in the
foregoing instrument, and acknowledged that she executed the same for the purposes
therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
(SEAL)
Notarial Seal
William L. Grubb, Notary Public
Lower Allen Twp., Cumberland County
My Commission Expires Aug. 13, 2001
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
JAY S. STEWART,
Plaintiff
v.
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)
)
Action No. 00-5784 CIVIL TERM
JOY M. STEWART,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
ORDER OF COURT
AND NOW, this ~I./~ay Of~, 2001, it is hereby ORDERED and DECREED
that the terms and conditions of the Stipulation for Entry of a Custody Order by Agreement
attached hereto as Exhibit "A" are incorporated herein by reference and made an order of this
court.
J.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
JAYS. STEWART,
Plaintiff
v.
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No. 00-5784 CIVIL TERM
JOY M. STEWART,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
STIPULATION FOR ENTRY OF A CUSTODY ORDER BY AGREEMENT
This Stipulation is made this 7ft, day of III r t' /
,2001, by and between Jay S.
Stewart of York County, Pennsylvania and Joy M. Stewart of Garrett County, Maryland;
WITNESSETH:
WHEREAS, the Plaintiff in the above-captioned action is Jay S. Stewart (hereinafter
referred to as "Father"), social security # 305-66-3174, was born on October 24, 1955, and who
currently resides at 205 Franklintown Road, Dillsburg, York County, Pennsylvania;
WHEREAS, the Defendant in the above-captioned action is Joy M. Stewart (hereinafter
referred to as "Mother"), social security # 219-76-4287, was born on October 12, 1971, and who
currently resides at 3074 Bumble Bee Road, Accident, Garrett County, Maryland;
WHEREAS, the parties' are husband and wife, but have lived separate and apart since on
or about June 28, 2000;
WHEREAS, Father initiated a divorce action in the Court of Common Pleas of
Cumberland County, at action no. 00-5784 Civil Term on August 22, 2000, which is currently
pending before the court;
WHEREAS, the parties' are the natural parents of two minor children: Justin James
Stewart, born July 10, 1993, and Joshua Hayden Stewart, born May 8, 1996;
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WHEREAS, as part of the divorce action Mother and Father entered into a custody
agreement dated September 21, 2000, which was adopted as an Order of Court on September 28,
2000;
WHEREAS, the September 21, 2000 Agreement provides in paragraph six that it shall
continue in full force and effect as an Order of Court until written stipulation of the parties.
WHEREAS, the parties' hereto desire to amend their previous custody agreement and
enter into a new stipulation that promotes the best interests of their children;
NOW, THEREFORE, in consideration of these premises and the mutual promises,
covenants and undertakings set forth herein, and intending to be legally bound hereby, Father and
Mother stipulate and agree as follows:
1. Legal Custodv. Father shall have primary legal custody of the parties' children,
legal custody being defmed as the right to make major decisions effecting the best interest of the
children, including but not limited to medical, religious and educational decisions. Father agrees
that, at Mother's request, he will inform Mother of the children's educational, social and medical
development and will provide copies to Mother of medical and educational records and
information pertaining to the children. Father agrees to notify Mother within a reasonable time of
any matter relating to the children which could reasonably be expected to be of significant concern
to the other.
2. Phvsical Custody. Father shall have primary physical custody of the minor
children. As primary custodian of the children, Father shall have the right to claim the children as
exemptions on his federal income tax return.
3. Visitation. Except as otherwise provided herein, Mother shall be limited to
visitation with the children on the 1 ,t and 3'd Saturdays of each month at 3074 Bumble Bee Road,
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Accident, Garrett County, Maryland from II :00 a.m. to 6:00 p.m. or at any other date, time or
location agreed upon by the parties. Mother shall not consume alcohol or drugs during her periods
of visitation.
4. Transportation. Except as otherwise might be agreed upon by the parties, Mother
shall be responsible for obtaining transportation to and from those sites designated by the parties as
the locus for visitation.
5. Suitable Residence. Mother shall obtain and maintain suitable accommodations
that include, at a minimum, running water, heat, beds for the children, and sufficient provisions for
her and the children. Mother shall maintain a working telephone number within the residence at all
times. For a period of 6 months from the date of this Stipulation, Father agrees to pay for the basic
telephone service as well as all long distance charges incurred by Mother from talking with the
children or communicating with Father about periods of visitation and custody provided for in this
Stipulation. Mother shall provide Father with the current telephone number to her residence.
Mother shall provide Father with documentation both as to the monthly amount due for basic
telephone service and the monthly amount due for long distance charges to which he is responsible
under this paragraph.
6. Partial Custodv. It is the intention of the parties to expand Mother's custodial time
with the children once she has demonstrated her ability to be responsible for the children.
Therefore, provided Mother maintains accommodations suitable for the children and has not
consumed alcohol or illegal drugs while she has visitation with the children, the parties agree that
Mother will have partial custody of the children on the I" and 3m weekend of each month from
Saturday at 9:00 a.m. to Sunday at 6:00 p.m., such that said partial custody does not interfere with
planned family vacations. Father shall notify Mother at least sixty (60) days in advance of any
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family vacations. The following conditions shall be in effect for Mother's periods of partial
custody:
(a)
custody;
(b)
custody;
(c)
Mother shall not consume alcohol during her periods of partial
Mother shall not use any illegal drugs during her periods of partial
Mother shall not leave the children in the custody of family
members, friends or babysitters during her periods of partial custody and;
(d) Mother must either have her own vehicle or have access to a vehicle
in case of any emergencies involving the children;
The periods of partial custody set forth above shall commence no earlier than July 1, 200l.
7. Summer Vacation. If Mother successfully demonstrates her ability to care for the
children, complies with the conditions of this Stipulation and has began to exercise her periods of
partial custody, as set forth above, then in the summer of 2002, the parties agree that Mother shall
be entitled to two (2) non-consecutive weeks of summer vacation. The summer period being
defmed as the time between the end of the children's school year and the beginning of the
following school year. Mother shall give Father at least sixty (60) days notification from the start
of the summer period as to those weeks in the summer she wants vacation with the children.
8. Agreed Order. The parties agree that this stipulation shall be submitted to the court
with a request that its terms being incorporated by a binding and enforceable Order of Court.
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IN WITNESS WHEREOF, the parties hereto affix their hands and seals the day and date
first written above.
adMu ~iD
WITNESS
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COMMONWEALTH OF PENNSYL VANIA
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BEFORE ME, the undersigned authority, on this day personally appeared JAY S.
STEWART, known to me to be the person who executed the foregoing instrument, and who
acknowledged to me that he executed same for the purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 7 day of
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, 2001.
Notarial Seal
R. Marlene Savage. Notary Public
Henry Clay Twp.. Fayette County
My Commission expires Mar. 6. 2005
Member, PennsylvaniaAssociaflon of Nofarles
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Commonwealth of Pennsylvania
Typed or printed name of Notary:
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My commission expires: If flf't:.-h (, ~ 0 () .s
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COUNTY OF fa- y e+ .J '(.;
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BEFORE ME, the undersigned authority, on this day personally appeared JOY M.
STEWART, known to me to be the person who executed the foregoing instrument, and who
acknowledged to me that she executed same for the purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this
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7 day of
, 2001.
Notarial Seal
R. Marlene Savage. Notary Public
Henry ClayTwp., Fayette County
My Commission Expires Mar. 6, 2005
Member, PennsylvaniaAssoCl8flon of Notaries
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Commonwealth of Pennsylvania
Typed or printed name of Notary:
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My commission expires: )f4rcl & :}.0lJ S
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
Plaintiff
v.
)
)
)
)
)
)
)
NO. 00-5784 CNIL TERM
JOY M. STEWART,
Defendant
CNIL ACTION .- LAW
IN DNORCE
AND NOW, this
ORDER OF COURT
~1~ day of ~ ,2001, upon consideration of Plaintiffs
Motion to Withdraw Petition for Enforcement of Property Settlement Agreement and Contempt
of Court, and in light of the parties' settlement on those issues raised by Plaintiff in his Petition
for Enforcement, it is hereby ORDERED and DECREED that Plaintiffs Petition for
Enforcement of Property Settlement Agreement and Contempt of Court is withdrawn, and the
pre-trial conference scheduled before the undersigned jurist for Monday, January 7, 2002 is
accordingly discontinued.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
Plaintiff
v.
)
)
)
)
)
)
)
NO. 00-5784 CIVIL TERM
JOYM. STEWART,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
MOTION TO WITHDRAW PETITION FOR ENFORCEMENT OF PROPERTY
SETTLEMENT AGREEMENT AND CONTEMPT OF COURT
AND NOW, comes Plaintiff, Jay S. Stewart, by and through his counsel, Howett,
Kissinger & Conley, P.C., who hereby files the instant Motion to Withdraw Petition for
Enforcement of Property Settlement Agreement and Contempt of Court and in support thereof
avers as follows:
1. On or about November I, 2001, Movant Jay S. Stewart filed a Petition for
Enforcement of Property Settlement Agreement and Contempt of Court against Respondent Joy
M. Stewart alleging Respondent had willfully failed to comply with various provisions of the
parties' Property Settlement Agreement. A copy of said Petition for Enforcement of Property
Settlement Agreement and Contempt of Court is attached hereto as exhibit "A" and is
incorporated herein by reference.
2. Shortly after said petition was filed, the Court of Common Pleas of Cumberland
County, per the Honorable Edward E. Guido, scheduled a pre-trial conference for Monday,
January 7, 2002 at 9:00 a.m.
3. On December 8, 2001, the parties entered into an amendment to their Property
Settlement Agreement that resolved those issues raised by Movant in his Petition for
Enforcement of Property Settlement Agreement and Contempt of Court. A copy of said
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amendment is attached hereto as exhibit "B" and is incorporated herein by reference.
4. Inasmuch as the parties have resolved the issues raised by Movant in his petition
for enforcement, Movant hereby seek to withdraws his petition.
5. Furthermore, Movant seeks to have the January 7, 2002 pre-trial conference
discontinued in light of the parties' settlement.
WHEREFORE, Movant respectfully requests the court withdraw his Petition for
Enforcement of Property Settlement Agreement and Contempt of Court and discontinue the pre-
trial conference scheduled for January 7, 2002.
Respectfully submitted,
Date: /1 /;710 I
72e~oCZst!:Pr
HOWETT, KISSINGER & CONLEY, p,c.
130 Walnut Street
P.O. Box 810
Harrisburg, P A l7l 08
Telephone: (717) 234-2616
Counsel for Plaintiff Jay S. Stewart
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
PlaintiIDPetitioner
v.
)
)
)
)
)
)
)
CIVIL ACTION - LAW
IN DNORCE
NO. 00-5784 CNIL TERM
JOYM. STEWART,
Defendant/Respondent
NOTICE AND ORDER TO APPEAR
Legal proceedings have been brought against you alleging you have willfully disobeyed
an Order of Court or Property Settlement Agreement.
You may defend against the claims set forth in the following pages by filing an answer
with the court no later than twenty (20) days from the date of service hereof. You are further
ordered to appear in person in court on , at , _ .m. in
courtroom _' Cumberland County Courthouse, One Courthouse Square, Carlisle, PA 17013-
3387.
IF YOU DO NOT APPEAR IN PERSON, THE COURT MAY ISSUE A WARRANT FOR
YOUR ARREST.
If the court fmds that you have willfully failed to comply with an Order of Court or
Property Settlement Agreement, you may be found to be in contempt of court and committed to
jail, fined or both.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW WHERE YOU CAN GET LEGAL HELP.
Legal Services, Inc.
8 Irvine Row
Carlisle, P A 17013
(717) 243-9400 or (717) 766-8475
Date:
BY THE COURT:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
Plaintiff7Petitioner
v.
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)
)
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)
NO. 00-5784 CIVIL TERM
JOY M. STEWART,
DefendantfRespondent
CIVIL ACTION - LAW
IN DIVORCE
PETITION FOR ENFORCEMENT OF PROPERTY SETTLEMENT AGREEMENT
AND CONTEMPT OF COURT
AND NOW, comes Plaintiff, Jay S. Stewart, by and through his counsel, Howett,
Kissinger & Conley, P.c., who hereby files the instant Petition for Enforcement of Property
Settlement Agreement and Contempt of Court and in support thereof avers as follows:
1. Petitioner is Jay S. Stewart, Plaintiff in the above-captioned divorce action, an
adult individual who resides at 205 Frank1intown Road, Dillsburg, York County, Pennsylvania
17019.
2. Respondent is JoyM. Stewart, Defendant in the above-captioned divorce action,
an adult individual who resides at 3074 Bumblebee Road, Accident, Garrett County, Maryland
21520.
3. The parties hereto are husband and wife, having been married on April 21, 1995
but separated on June 8, 2000.
4. During marriage, the parties resided at 3808 Chippendale Road, Mechanicsburg,
Cumberland County, Pennsylvania 17055 (hereinafter referred to as "Marital Residence").
5. On August 22, 2000, Husband filed an action for divorce with the Court of
Common Pleas of Cumberland County at the above-captioned action number requesting a no-
fault divorce and equitable distribution of the marital estate.
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6. On September 21,2000, the parties executed a Property Settlement Agreement
that settled fully and finally their respective financial and property rights and obligations between
each other, including the settling of all matters between them relating to the ownership of real
and personal property. A copy of the. parties' Property Settlement Agreement is attached hereto
as Exhibit "A" and is incorporated herein by reference.
7. Paragraph 5(b) of the Agreement provides that Wife "relinquishes and disclaims
any and all ownership, right, title and interest in the Marital Residence, as wen as to.the
household goods, contents, furniture and furnishings located in the family residence. Wife
covenants and agrees that Husband shall be and remain the sole and separate owner of same.
Husband shall be responsible for all debt and expenses related to the Marital Residence."
8. Paragraph 16 of the Agreement provides that the parties shall execute any and all
documents or instruments required to give full force and effect to the terms and provisions of the
Agreement.
9. After executing the Agreement, Husband sought on several occasions to have
Wife execute a deed to the Marital Residence to evidence him as sole and exclusive owner
thereof and to effectuate the terms of the parties' agreement.
10. Wife has refused all such requests to execute a deed notwithstanding the fact that,
under the parties' agreement, Husband obtained sole and exclusive ownership of the residence
and has continued since the date of execution to be solely responsible for the mortgage and all
liabilities and debts associated therewith.
11. In August of200l, Husband contacted two real estate agents for purposes of
selling the Marital Residence.
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12. As a prerequisite for sale, however, Husband needed to have Wife execute a deed
to the Marital Residence to remove her name therefrom. On the first weekend of September
Husband presented Wife a deed for execution; she refused to execute the deed.
13. On September 11, 2001, counsel for Husband sent Wife a letter via hand delivery
advising Wife that her willful refusal to execute the deed and honor the terms of the parties'
agreement constitutes contumacious conduct. Said letter again requested Wife execute the deed
to the Marital Residence. A copy of the September 11, 2001 letter is attached hereto as Exhibit
"B" and is incorporated herein by reference.
14. Husband hand delivered counsel's September 11 th letter to Wife and,
simultaneously therewith, presented a deed to the Marital Residence for Wife's execution. Wife
again refused to sign.
15. As a result of Wife's refusal to execute the deed, Husband has been unable to put
the residence up for sale inasmuch as the real estate agents require clear title before they will list
the property for sale.
16. Pursuant to g3l05(a) of the Divorce Code, a party to a Property Settlement
Agreement may utilize a remedy or sanction set forth in the Code to enforce the agreement to the
same extent as if the agreement had been an order of court.
17. Pursuant to g3502(e) of the Divorce Code, if a party fails to comply with the
terms of a Property Settlement Agreement the court may enter judgment against the party;
compel the transfer of property; award counsel fees and costs to the non-breaching; and find a
party in contempt for his/her wil1ful failure to comply with the terms of the agreement.
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18. Inasmuch as the parties' Property Settlement Agreement clearly provides that
Wife relinquished any and all right to the Marital Residence upon execution of the agreement,
and that said agreement further provides that Wife was obligated to execute any and all
documents necessary to effectuate the transfer, Wife's repeated willful refusal to execute a deed
to the residence transferring all of her right and title thereto, constitutes a breach of the parties'
agreement thus permitting Husband to seek enforcement remedies provided for under the
Divorce Code.
19. Husband cannot sell the Marital Residence until Wife executes a deed.
WHEREFORE, Petitioner respectfully requests the Court enter an order:
(a) Finding Respondent in civil contempt for her willful refusal to execute a
deed transferring her interest to 3808 Chippendale Road, Mechanicsburg, Cumberland County,
Pennsylvania 17055 and ordering incarceration to compel the execution; and
(b) Awarding Petitioner reasonable counsel fees and costs incurred in
prosecuting this action.
Date:
lilt/oj
Respectfully submitted;i / /J 1--
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arren J. Hols{, Esquire
HOWETT, KISSINGER & CONLEY, P.C.
130 Walnut Street
P.O. Box 810
Harrisburg, P A 17108
Telephone: (717) 234-2616
Counsel for Plaintiffi'Petitioner, Jay S. Stewart
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VERIFICATION
I, Jay S. Stewart, hereby swear and affirm that the facts contained in the foregoing
Petition for Enforcement of Property Settlement Agreernentand Contempt are true
of Court
and correct to the best of my knowledge, information and belief and are made subject to the
penalties of IS Pa.C.S. ~4904 relating to unsworn falsification to authorities.
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/_ 1o-<"S. S,te\Vart
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11/1/01
Date:
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SEPARATION AND PROPERTY SETTLEMENT AGREEMENT
THIS AGREEMENT made and entered into this ..v~ay of ~~
2000, by and between JAY S. STEWART, of Cumberland County, Pennsylvania, party
of the first part, hereinafter referred to as "Husband," and JOY M. STEWART, of
Cumberland County, Pennsylvania, party of the second part, hereinafter referred to as
"Wife."
WITNESSETH:
WHEREAS, the parties hereto are husband and wife, having been married on or
about April 21,1995; and
WHEREAS, certain differences have arisen between the parties as a consequence
of which they intend to live separate and apart from each other during the rest of their
natural lives; and
WHEREAS, the parties desire to confirm their separation and desire to enter into
an agreement for the final settlement of their property and affairs; and
WHEREAS, the parties intend to dissolve their marital status by means of a
divorce pursuant to Section 330l[c] of the Divorce Code of Pennsylvania.
NOW, THEREFORE, in consideration of the foregoing and in further
consideration of the covenants and promises hereinafter mutually to be kept and
perfonned by each party hereto, as well as for other good and valuable considerations, it
is agreed as follows:
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1. SEPARATION. It shall be lawful for each party at all times hereafter to live
separate and apart from the other party, at such place or places as he or she from
time to time may choose or deem fit.
2. NON-INTERFERENCE. Each party shall be free from interference,
authority and control, direct or indirect, by the other in all respects as fully as ifhe
or she were single and unmarried. Each may, for his or her separate use or benefit,
conduct, carry on and engage in any business, occupation, profession or
employment which to him or her may seem advisable. Neither party shall molest,
harass, disturb or malign the other or the family of said other, nor compel or
attempt to compel the other to cohabit or dwell with him or her.
3. MUTUAL RELEASES. Husband relinquishes his inchoate intestate right in
the estate of Wife, and Wife relinquishes her inchoate intestate right in the estate
of Husband, and each of the parties hereto by these presents, for himself or
herself, his or her heirs, executors, administrators or assigns, does remise, release,
quitclaim, and forever discharge the other party hereto, his or her heirs,executors,
administrators or assigns, or any of them, of and from any and all claims,
demands, damages, actions, causes of actions, or suits at law or in equity, of
whatsoever kind or nature, for or because of any matter or thing done, omitted, or
suffered to be done by said party prior to and including the date hereof; except
that his release shall in no way exonerate or discharge either party hereto from the
obligations and promises made and imposed by reason of this Agreement, and
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shall in no way affect any cause of action in absolute divorce which either party
may have against the other party.
4. MARITAL PROPERTY. The parties hereto acknowledge and agree that
they acquired various assets and debts before and during their marriage, whether
the same were held jointly or individually by the parties hereto, including but not
necessarily limited to:
(a) The marital residence, a single family home located at 3S0S
Chippendale Road, Mechanicsburg, PA., which the parties purchased
in 1999. The said marital residence is titled to both Husband and
Wife, is worth approximately $205,000, has a mortgage of
approximately $145,000 held by National City Bank, and has an equity
value of approximately $60,000.
(b) Household goods, contents, furniture and furnishings located in the
family residence.
(c) Husband's 40l(k) plan through his previous employer, Honda of
America Manufacturing, Inc., for whom Husband was employed from
1992 until May, 1995. Said plan has a value of approximately
$23,000.
(d) Husband's 1992 Dodge Stealth, purchased prior to the marriage and
titled in the names of both Husband and Wife.
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(e) Husband's 1994 Chevrolet Suburban, purchased during the marriage
and titled in Husband's name. Said vehicle is encumbered by a loan
for which payments of $388 per month are due until January, 2001.
(t) Husband's IRA account with Fidelity Investments, worth
approximately $65,000. Contributions into said IRA were made by
husband prior to the marriage of the parties.
(g) A joint savings account at Harris Savings Bank, worth approximately
$10,000 at the time of separation. Subsequent to separation of the
parties, approximately $5,000 has been paid to satisfy marital
obligations. The remaining amount was placed in a savings account
under Husband's name at Harris Savings Bank.
(h) Two joint checking accounts at Harris Savings Bank, maintained for
the purpose of paying current expenses, their combined estimated
value being less than $2,000 at the time of separation.
(i) Husband's business, a sole proprietorship known as Nirvana Boats, of
unknown value, located at 314 Stewart Road, Mill Run, Pennsylvania.
G) Husband's farm house property at Mill Run, PA, purchased prior to
marriage, worth approximately $75,000 to $80,000, and unencumbered
by any lien.
(k) Household goods, contents, furniture and furnishings located in
Husband's farm house.
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(I) Various items of personal property of a personal nature.
5. DISTRIBUTION OF MARITAL PROPERTY. The parties hereto covenant
and agree that the assets described in Paragraph 4, above, have been or are hereby
being divided and distributed between them as follows:
(a) Husband and Wife agree that Wife shall receive from the Husband four
thousand dollars ($4,000.00) cash upon execution of this Agreement,
and thirty-six thousand dollars ($36,000.00) cash in a lump sum, to be
paid thirty (30) days after this Agreement is executed, or at such time
as Husband receives the bequeath from his father's estate, which is
currently in probate, whichever event shall take place later.
(b) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the marital residence, as well as to the household goods,
contents, furniture and furnishings located in the family residence.
Wife covenants and agrees that Husband shall be and remain the sole
and separate owner of same. Husband shall be responsible for all debt
and expenses related to the marital residence.
(c) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's 40l(k) plan established through Honda of
America Manufacturing, Inc., and Wife covenants and agrees that
Husband shall be and remain the sole and separate owner of same.
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(d) Husband shall provide to Wife ownership and possession of Husband's
1992 Dodge Stealth and Husband covenants and agrees that Wife shall
be and remain the sole and separate owner of same.
(e) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's 1994 Chevrolet Suburban. Wife covenants and
agrees that Husband shall be and remain the sole and separate owner of
same. Husband shall be responsible for all debt related to said vehicle.
(f) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's IRA account with Fidelity Investments, and Wife
covenants and agrees that Husband shall be and remain the sole and
separate owner of same.
(g) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the joint savings account that existed at Harris Savings at
the time of separation, and in the savings account established by
Husband with approximately half of the proceeds from said joint
savings account. Wife covenants and agrees that Husband shall be and
remain the sole and separate owner of same.
(h) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the two joint checking accounts that existed at Harris
Savings Bank at the time of separation for the purpose of paying
current expenses. Wife covenants and agrees that Husband shall be
and remain the sole and separate owner of same.
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(i) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to Husband's business known as Nirvana
Boats. Wife relinquishes and disclaims any and all ownership, right,
title and interest or entitlement in or to said business and assets. Wife
covenants and agrees that Husband's sole proprietorship and its assets
shall be and remain the sole and separate property of Husband.
G) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to Husband's farm house property and
Wife covenants and agrees that Husband's farm house property shall
be and remain the sole and separate property of Husband.
(k) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to the household goods, contents, furniture
and furnishings previously located in Husband's farm house and Wife
covenants and agrees that said household goods, contents, furniture
and furnishings shall be and remain the sole and separate property of
Husband.
(I) Each of the parties hereto relinquishes and disclaims any and all
ownership, right, title and interest in or to the personal effects of the
other.
6. EQillTABLE PROPERTY. This Agreement constitutes an equitable division of
the parties' marital property. The parties have determined that the division of this
property confonns with regard to the rights of each party. The division of existing
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marital property is not intended by the parties to constitute in any way a sale or
exchange of assets.
7. CUSTODY AND VISITATION. Custody and visitation has been stipulated by
and between the parties under a separate CUSTODY AGREEMENT filed as an
order of court prior to the filing of this SEPARATION AND PROPERTY
SETTLEMENT AGREEMENT.
8. SUPPORT AND ALIMONY. Husband and Wife have agreed to a child support
arrangement that is specified under the aforementioned separate CUSTODY
AGREEl\1ENT between the parties filed as an order of court prior to the filing of
this SEPARATION AND PROPERTY SETTLEMENT AGREEMENT. It is
agreed by Husband and Wife that neither party be obligated to pay to the other
party any support or alimony other than that provided for under the
aforementioned CUSTODY AGREEMENT.
9. TAX EXEMPTIONS. Wife agrees that Husband shall be entitled to claim both
children, Justin James Stewart and Joshua Hayden Stewart, as Husband's
exemptions on all future federal income tax returns. Wife agrees to execute and
deliver to Husband, upon the execution and delivery of this Agreement, IRS Form
8332, releasing her claim of exemption to Justin James Stewart and Joshua
Hayden Stewart for all future years.
10. INCOME TAX RETURN. In the event that any federal income tax is owed for
any year in which a joint federal income tax return was filed prior to the execution
of this agreement, the parties hereby agree that Husband shall pay one-hundred
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percent (100%) of the amount owed. In the event that any federal income tax
refund is due for any years in which a joint federal income tax return was filed
prior to the execution of this agreement, the parties hereby agree that Wife shall be
entitled to one-eighth (12.5%) and Husband shall be entitled to seven-eighth
(87.5%) of the money refunded.
11. INDEMNIFICATION FOR PAST DEBTS. Except as otherwise provided in
Paragraph 5, above, each of the parties hereto covenants and agrees to assume full
responsibility for and to pay all debts and obligations of whatsoever kind or nature
incurred individually by that party prior to the day and date of this Agreement, and
each of the parties hereto hereby covenants and agrees to indemnify the other
party and save him or her harmless from all liability or claim on account of said
debts and obligations from and after the date hereof.
12. FUTURE OWNERSHIP OF PROPERTY. Each of the parties hereto may
hereafter own and enjoy, independently of any claims or rights of the other, all
items of personal and real property, tangible or intangible, hereafter acquired by
him or her, with full power in him or her to dispose of the same as fully and
effectively in all respects and for all purposes as though he or she were unmarried.
13. MUTUAL RELEASES. The parties acknowledge that under prevailing
Pennsylvania law they each have certain possible fiscal rights, including but not
limited to the following: spousal support, alimony pendente lite in the event of a
divorce, permanent alimony subsequent to a divorce, recovery of counsel fees,
costs and expenses in the event of a divorce, and equitable distribution of marital
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property. It is the intention ofthe parties hereto that all of the foregoing rights and
remedies, with the exception of those otherwise provided in this Agreement and
aforementioned Custody Agreement, are hereby waived and forever released and
that this Agreement shall have the effect of a final Order of Court relieving each
party of the obligation to the other for any and all of the foregoing possible rights
and remedies. The parties have effected an equitable distribution of their marital
property and neither will seek further distribution by any action at law or in equity.
14. EFFECT OF DIVORCE DECREE. The parties covenant and agree that unless
otherwise specifically provided herein, this Agreement shall continue in full force
and effect after such time as a final decree in divorce may be entered with respect
to the parties.
15. INDEMNIFICATION FOR FUTURE DEBTS. Each of the parties hereby
covenants and agrees with the other party not to make, incur or attempt to make or
incur any debt or obligation for or 'on behalf of the other party hereto, or for which
the other party may be held liable, from and after the date hereof, and each of the
parties hereto hereby covenants and agrees to indemnify the other party and save
him or her harmless from all liability or claim on account of said debt or
obligations from and after the date hereof.
16. OTHER DOCUMENTS. Each of the parties hereto shall, from time to time, at
the request of the other party, execute, acknowledge and deliver unto said other
party any and all further documents or instruments which may be reasonably
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required to give full force and effect to the terms and provisions of this
Agreement.
17. DIVORCE. This Agreement shall not be construed to affect or bar the right of
either Husband or Wife to an absolute divorce on legal and truthful grounds if
they now exist or may hereafter arise. This Agreement is not intended to condone
and shall not be deemed to be a condonation on the part of either party hereto of
any act or acts on the part of the other party which have occurred prior to or which
may occur subsequent to the date hereof. It is understood, however, that Husband
will pursue an action in divorce pursuantto Section 330l(c) of the Divorce Code
of Pennsylvania, on the grounds that the marriage is irretrievably broken, and that
both parties agree to execute and file the appropriate affidavits of consent
necessary to complete said action in divorce on the basis of mutual consent.
18. SEVERABILITY. The waiver of any term, condition, clause or provision of this
Agreement shall in no way be deemed or considered a waiver of any other term,
condition, clause or provision of this Agreement, and if any provision of this
Agreement is held to be invalid or unenforceable by a court of competent
jurisdiction, all other provisions shall nevertheless continue to be in full force and
effect.
19. LAW OF PENNSYLVANIA APPLICABLE. Both parties covenant and agree
that they have had ample and sufficient time to carefully and fully review the
terms and provisions of this Agreement and to seek and obtain the advice and
counsel of an attorney with respect to the same. Husband has engaged the
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services ofG. Patrick O'Connor, Esquire. Wife has had the opportunity to engage
legal counsel of her choice, and each party has carefully reviewed the terms and
conditions of this Agreement with his or her respective counsel. Both parties
covenant and agree that they fully understand the facts upon which this
Agreement is premised and based, that they believe this Agreement to be fair and
equitable, that said Agreement is being entered into freely and voluntarily by each
of them, and that the execution of this Agreement is not the result of any duress or
undue influence and that it is not the result of any collusion or improper or illegal
agreement or agreements.
20. INTEGRATION. This Agreement constitutes the entire understanding between
the parties and supersedes any and all prior agreements and negotiations between
them. Both parties further agree that there are no covenants, conditions,
representations or agreements, oral or written, of any nature whatsoever, other
than those contained herein.
21. AGREEMENT BINDING UPON HEIRS. This Agreement shall be binding
upon the parties hereto and their respective heirs, executors, administrators and
assigns.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have hereunto set their hands and seals the day and year first above written.
WITNESSETH:
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]0 . M. Stewart
(SEAL)
(SEAL)
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COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND )
On this, the Qj Sr day of ~Lvr . ,
2000, before me, a Notary Public in and for the state and county aforesaid, the
undersigned officer, personally appeared JOY M. STEWART, known to
me (or satisfactorily proven) to be the person described in the foregoing instrument,
and acknowledged that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
LJ'~OQ (e <-\J ~
Notary Public ~ ,
(SEAL)
Notarial Seal
William L. Grubb, Notary Public
Lower Allen Twp., Cumberland County
My CommisSion Expires Aug. 13. 2001
COMMONWEALTH OF PENNSYLVANIA)
: S8.
COUNTY OF CUMBERLAND )
On this, the ;2/ sr day of ~ '
2000, before me, a Notary Public in and for the state and county aforesaid, the
undersigned officer, personally appeared JAY S. STEWART, known
to me (or satisfactorily proven) to be the person described in the foregoing instrument, .
and acknowledged that she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
W"JL~ / ~.J1
Notary Public
(SEAL)
Notarial Seal PulIllc'
William L. Grubb, =and County
I.oW8f Allen Twp., Cu a.", 13 2001
My CommJssion ExpIreS .-.' ,
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HOWETT, KISSINGER & CONLEY, p.6
130 W ALNllT Sl'R.EET
POST OFFICE BOX 110
HAwsBtJIO, Pao.svt.v.... 17101
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JOHN C. HOWETT, JR.
DONALDT. KISSINGER
CINDY S. CONLEY
DARREN 1. HOLST
September 11,2001
(717)2.34-2616
FAX (717) 234.5402
DEBRA M. SHIMP
Legal Assisrant
VIA HAND DELIVERY
Joy M. Stewart
3074 Bumblebee Road
Accident, livID
Re: Stewart v. Stewart
Dear Ms. Stewart:
I .,.,Tite on behalf of your estranged husband, Jay Stewart.
On September 21,2000, you and Jay executed a Separation and Property Settlement
Agreement, which clearly delineated the rights and obligations of the parties with respect to your
physical separation and ultimate divorce. In accordance with paragraph 5(b) of the Agreement,
Mr. Stewart received the marital residence located 3808 Chippendale Road, Mechanicsburg,
Pennsylvania as his sole and separate property, and you relinquished al! right, title and interest
you may have had to said residence. Furthermore, pursuant to paragraph 16 of the Agreement,
you were obligated to execute al! documents and instruments necessary to give full force and
effect to the Agreement.
Mr. Stewart has informed our office that you have refused to execute a deed evidencing
him as sole owner of 3808 Chippendale Road. Please be advised that your wilful refusal to
execute the deed constitutes contumacious conduct subjecting you to liability for breach of
contract. If l'vIr. Stewart is forced to prosecute this action, not only will you be compel!ed by the
court to execute the deed, but you will be personally liable for all incidental damages that Mr.
Stewart has incurred as a result of your refusal to sign, which may amount to more than $20,000,
and you wil! also be responsible for all of Mr. Stewart's attorney's fees incurred in the action.
Mr. Stewart's rights are clearly set forth in the property settlement agreement, and it is
not a question of whether you will be found in breach of contract. Rather, the only question is
how much the monetary judgment against you will be. It is simply ridiculous for you to refuse to
execute the deed and force this matter to litigation.
For everyone's sake, I urge you to comply with your agreement and execute the deed to
the marital residence that Mr. Stewart's presents for your signature.
I. S:fj/K'
~arren J.Holst
DJHldjk
cc: Jay S. Stewart
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AMENDMENT TO SEPARATION AND PROPERTY SETTLEMENT AGREEMENT
THIS AMENDMENT is made this ~ day oWe. ~
,2001, by and
between JAY S. STEWART, ofY ork County, Pennsylvania and JOY M. STEWART, of
Garrett County, Maryland;
WITNESSETH:
WHEREAS, Jay S. Stewart (hereinafter referred to as "Husband"), was born on October
24, 1955, and currently resides at 205 Franklintown Road, Dillsburg, York County, Pennsylvania
17019;
WHEREAS, Joy M. Stewart (hereinafter referred to as "Wife"), was born on October 12,
1971, and currently resides at 3074 Bumblebee Road, Accident, Garrett County, Maryland
21520;
'WHEREAS, the parties are husband and wife, but have lived separate and apart since on
or about June 28, 2000;
WHEREAS, Husband initiated a divorce action in the court of Common Pleas of
Cumberland County, at action no. 00-5784 CIVIL TERM, on August 22, 2000, which is
currently pending before the court;
WHEREAS, on September 21, 2000, the parties entered into a Separation and Property
Settlement Agreement resolving all ancillary matters to the parties' divorce action (hereinafter
"The Agreement");
WHEREAS, on or about November 1, 2001, Husband filed a Petition for Enforcement of
Property Settlement Agreement and Contempt of Court in light of Wife's failure to abide by
certain provisions of The Agreement;
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WHEREAS, a pretrial conference has been scheduled for January 7, 2002 before the
Honorable Edward E. Guido on Husband's petition;
WHEREAS, the parties hereto are desirous of entering into this Amendment to The
Agreement to modify certain provisions of said Agreement, leaving the remainder of said
Agreement intact, with the intention that it be construed in conjunction with said Agreement.
NOW, THEREFORE, in consideration of these premises, and of the mutual promises,
covenants and undertakings hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by each of the parties hereto,
Husband and Wife, each intending to be legally bound hereby, covenant and agree as follows:
I. Husband and Wife agree to sign and file joint federal, state and local tax returns
for tax year 2001. The parties further agree that any tax refund will be divided between the
parties with Wife receiving one-eighth (12.5%) and Husband receiving seven-eighths (87.5%);
Husband agrees to be solely responsible for any tax penalty that may be incurred. Any cost of
prcparingjoint returns for 2001 shall be borne solely by Husband.
2. Husband further agrees that, in the event Wife would have been entitled to a tax
refund if she had filed "married filing separately," and the amount of the foregone refund would
have been greater than the one-eighth amount provided for in paragraph 1, supra, he will pay to
Wife an amount equal to the theoretical refund Wife would have received filing "married filing
separately" rather than the one-eighth amount. Any costs incurred in ascertaining the theoretical
refund shall be borne solely by Wife.
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3. Contemporaneously with the execution of this Amendment, Wife agrees to
immediately execute a deed to 3808 Chippenham Road, Mechanicsburg, Pennsylvania 17055
(hereinafter referred to as "Marital Residence") formally transferring any and all legal interest
she may still have in and to said Marital Residence. Under The Agreement, Husband became the
sole and exclusive owner of the Marital Residence, and Wife relinquished and released any and
all ownership, right, title and interest thereto.
. 4. Contemporaneously with Wife's execution of a deed transferring her legal interest
in and to the Marital Residence, Husband agrees to tender to Wife a check in the amount of
Thirteen Thousand Nine Hundred Fifty Two Dollars ($13,952), which said amount constitutes
one-half of the balance that remains owed to Wife under paragraph 5(a) of The Agreement.
Husband further agrees to immediately list the marital residence for sale and make a good faith
effort to sell the residence as expeditiously as possible.
5. Once Wife executes a deed to the Marital Residence, Husband agrees to withdraw
with prejudice his Petition for Enforcement of Property Settlement Agreement and Contempt of
Court and discontinue the pretrial conference scheduled for January 7, 2002.
6. Upon the sale of the Marital Residence, Husband agrees to pay Wife the
remaining Thirteen Thousand Nine Hundred Fifty Two Dollars ($13,952) owed to Wife under
paragraph 5(a) of The Agreement. Contemporaneously with Husband's payment of said Thirteen
Thousand Nine Hundred Fifty Two Dollars ($13,952), Wife agrees to execute an Affidavit of
Consent and Waiver of Notice of Intention, thus permitting Husband to finalize a consensual no-
fault divorce under ~330l(c) of the Divorce Code.
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7. Commencing the first day of the month following the sale of the Marital
Residence, Husband agrees to pay Wife alimony in the amount of Three Hundred Dollars ($300)
per month for twelve (12) months. Wife acknowledges and agrees that Husband's obligation to
pay her alimony under this provision shall immediately terminate and become null and void, and
Husband shall have no further obligation to provide Wife with alimony, alimony pendente lite, or
spousal support, if Wife has fails or refuses to comply in any way with any provision of this
Amendment or The Agreement, including, but not limited to, the signing of a joint tax return for
tax year 2001, the execution of a deed transferring her legal interest in and to the Marital
Residence or the execution of her Affidavit of Consent and Waiver of Notice Intention.
Moreover, Husband's obligation to pay Wife alimony shall terminate before the expiration of
twelve (12) months upon the first to occur of the following:
(a) Wife's death;
(b) Husband's death; or
(c) Wife's remarriage.
8. The parties' acknowledge and agree that this Amendment modifies only those
provisions of The Agreement specifically addressed herein. This Amendment is not intended to
supplant those provisions of The Agreement not addressed to the contrary herein, it being
understood by the parties that all other provisions of The Agreement remain effective in full
force and effect.
9. No modification, recession, or further amendment to this Amendment or The
Agreement shall be effective unless in writing signed by each ofthe parties hereto.
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10. If any provision of this Amendment is held by a court of competent jurisdiction to
be void, invalid or unenforceable, the remaining provisions hereof shall nevertheless survive and
continue in full force and effect without being impaired or invalidated in any way.
11. If either party hereto breaches any provision hereof, the other party shall have the
right, at his or her election, to sue for damages for such breach, or seek such other remedies or
relief as may be available to him or her. The non-breaching party shall be entitled to recover
from the breaching party all costs, expenses and legal fees actually incurred in the enforcement
of the rights of the non-breaching party.
12. The waiver by one party of any breach of this Amendment by the other party will
not be deemed a waiver of any other breach or any provision of this Amendment.
13. All acts contemplated by this Amendment shall be construed and enforced under
the substantive laws of the Conunonwealth of Pennsylvania (without regard to the conflict oflaw
rules applicable in Pennsylvania) in effect as of the date of execution of this Amendment.
14. The "date of execution" or "execution date" of this Amendment shall be defined
as the date upon which the parties signed the Amendment if they do so on the same date, or if not
on the same date, then the date on which the Amendment was signed by the last party to execute
this Amendment.
15. This Amendment shall become effective and binding upon both parties on the
execution date.
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IN WITNESS WHEREOF, the parties hereto set their hands and seals on the dates of
their acknowledgments.
~ .z. /;, .LAL/:()#
WITNESS
C)n~U'dd. ~
TNESS
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JOY STEWART
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COMMONWEALTH OF p;gNNS-ti\~~
COUNTY OF Jfo.l!A Pit-
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BEFORE ME, the undersigned authority, on this day personally appeared JAY S.
STEWART, known to me to be the person who executed the foregoing instrument, and who
acknowledged to me that he executed same for the purposes and considerations therein
expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this rct" day of
l~ Oo.r ~.r- ,2001.
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Typed or printed name of Notary:
My comssion expires:'
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COMMONWEALTH OF~~
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BEFORE ME, the undersigned authority, on this day personally appeared JOY M.
STEWART, known to me to be the person who executed the foregoing instrument, and who
acknowledged to me that she executed same for the purposes and considerations therein
expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ilL day of
(111'QAA~ ,2001.
;;ift,-L;L~ ir~ a/
otary Public in and for -:fr!'(;~ /.. .. _~
C6lillTISR9y7efrlth ofPcn:n.,ylvaJ.ll:;:vl~~
Typed or printed name of Notary:
My cOf\llIlissioD.. expires:
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VERIFICATION
I, Jay S. Stewart, hereby swear and affirm that the facts contained in the foregoing
Motion to Withdraw Petition for Enforcement of Property Settlement
Agreemf>nt: ann ('.onh'mpr of ('.ollrr are true
and correct to the best of my knowledge, information and belief and are made subject to the
penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities.
Date: December 1 7, 2001
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
Plaintiff
v.
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)
)
)
)
)
NO. 00-5784 CIVIL TERM
JOYM. STEWART,
Defendant
CIVIL ACTION . LAW
IN DIVORCE
CERTIFICATE OF SERVICE
I, Darren 1. Holst, Esquire, counsel for Jay S. Stewart, Plaintiff in the above-captioned
action, hereby certify that a true and correct copy of the foregoing Motion to Withdraw Petition
for Enforcement of Property Settlement Agreement and Contempt of Court was served upon Joy
M. Stewart, Defendant, by depositing same in the United States mail, first class, on December
17,2001 addressed as follows:
Joy M. Stewart
3074 Bumble Bee Road
Accident, Garrett County
Maryland 21520
Date: /).. ~ 7 !o I
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HOWETT, KISSINGER & CONLEY, P.C.
130 Walnut Street
P.O. Box 810
Harrisburg, PA 17108
Telephone: 717-234-2616
Counsel for Plaintiff Jay S. Stewart
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LAw OFFICES OF
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HOWETT, KISSINGER & CONLEY, P.C.
130 WALNUT STREET
POST OFFICE BOX. 81 0
lIARRtSBURG, PENNSYLVANIA 17108
JOHN C. HOWETT, JR.
DONALD T. KISSINGER
CINDY S. CONLEY
DARREN 1. HOLST
(717) 234-2616
FAX (717) 234-5402
DEBRA M. SlUMP
Legal AssisbUlt
November 1,2001
,
,
Curt Long, Prothonotary
CUMBERLAND COUNTY COURTHOUSE
One Courthouse Square
Carlisle, PA 17013-3387
Re: Stewart v. Stewart
No. 00-5784 CIVIL TERM
Dear Mr, Long:
Enclosed for filing please find an original and five copies of Plaintiff Jay Stewart's
Petition for Enforcement of Property Settlement Agreement and Contempt of Court. Kindly
time-stamp the copies and return them to our office once the court has scheduled a contempt
hearing so that I may effectuate service upon Ms. Stewart. Because Ms. Stewart resides outside
the Commonwealth, I would ask that the court not schedule a contempt hearing until late
December or early January to permit service upon Ms. Stewart and to give her the opportunity to
file an answer within twenty days thereafter.
Thank you for your attention to this matter. Please do not hesitate to give me a call
should the need arise.
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Darren J. Holst
DJH/djk
Enclosure
cc: Jay S. Stewart (w/encl)
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
Plaintiffi'Petitioner
v.
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)
)
)
NO. 00-5784 CIVIL TERM
JOY M. STEWART,
DefundantfRespondent
CIVIL ACTION - LAW
IN DIVORCE
NOTICE AND ORDER TO APPEAR
Legal proceedings have been brought against you alleging you have willfully disobeyed
an Order of Court or Property Settlement Agreement.
You may defend against the claims set forth in the following pages by filing an answer
with the court no later than twenty (20) days from the date of service hereof. You are further
ordered to appear in person in court on , at .m. in
courtroom -' Cumberland County Courthouse, One Courthouse Square, Carlisle, P A 17013-
3387.
IF YOU DO NOT APPEAR IN PERSON, THE COURT MAY ISSUE A WARRANT FOR
YOUR ARREST.
If the court finds that you have willfully failed to comply with an Order of Court or
Property Settlement Agreement, you may be found to be in contempt of court and committed to
j ail, fined or both.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW WHERE YOU CAN GET LEGAL HELP.
Legal Services, Inc.
8 Irvine Row
Carlisle, PA 17013
(717) 243-9400 or (717) 766-8475
Date:
BY THE COURT:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
PlaintiffiPetitioner
v.
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)
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)
NO. 00-5784 CIVIL TERM
JOY M. STEWART,
DerendanURespondent
CIVIL ACTION - LAW
IN DIVORCE
PETITION FOR ENFORCEMENT OF PROPERTY SETTLEMENT AGREEMENT
AND CONTEMPT OF COURT
AND NOW, comes Plaintiff, Jay S. Stewart, by and through his counsel, Howett,
Kissinger & Conley, P.C., who hereby files the instant Petition for Enforcement of Property
Settlement Agreement and Contempt of Court and in support thereof avers as follows:
1. Petitioner is Jay S. Stewart, Plaintiff in the above-captioned divorce action, an
adult individual who resides at 205 Franklintown Road, Dillsburg, York County, Pennsylvania
17019.
2. Respondent is Joy M. Stewart, Defendant in the above-captioned divorce action,
an adult individual who resides at 3074 Bumblebee Road, Accident, Garrett County, Maryland
21520.
3. The parties hereto are husband and wife, having been married on April 21, 1995
but separated on June 8, 2000.
4. During marriage, the parties resided at 3808 Chippendale Road, Mechanicsburg,
Cumberland County, Pennsylvania 17055 (hereinafter referred to as "Marital Residence").
5. On August 22, 2000, Husband filed an action for divorce with the Court of
Common Pleas of Cumberland County at the above-captioned action number requesting a no-
fault divorce and equitable distribution of the marital estate.
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6. On September 21,2000, the parties executed a Property Settlement Agreement
that settled fully and finally their respective financial and property rights and obligations between
each other, including the settling of all matters between them relating to the ownership of real
and personal property. A copy of the parties' Property Settlement Agreement is attached hereto
as Exhibit "A" and is incorporated herein by reference.
7. Paragraph 5(b) of the Agreement provides that Wife "relinquishes and disclaims
any and all ownership, right, title and interest in the Marital Residence, as wen as bthe
household goods, contents, furniture and furnishings located in the family residence. Wife
covenants and agrees that Husband shall be and remain the sole and separate owner of same.
Husband shall be responsible for all debt and expenses related to the Marital Residence."
8. Paragraph 16 of the Agreement provides that the parties shall execute any and all
documents or instruments required to give full force and effect to the terms and provisions of the
Agreement.
9. After executing the Agreement, Husband sought on several occasions to have
Wife execute a deed to the Marital Residence to evidence him as sole and exclusive owner
thereof and to effectuate the terms of the parties' agreement.
10. Wife has refused all such requests to execute a deed notwithstanding the fact that,
under the parties' agreement, Husband obtained sole and exclusive ownership of the residence
and has continued since the date of execution to be solely responsible for the mortgage and all
liabilities and debts associated therewith.
11. In August of2001, Husband contacted two real estate agents for purposes of
selling the Marital Residence.
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12. As a prerequisite for sale, however, Husband needed to have Wife execute a deed
to the Marital Residence to remove her name therefrom. On the first weekend of September
Husband presented Wife a deed for execution; she refused to execute the deed.
13. On September 11, 2001, counsel for Husband sent Wife a letter via hand delivery
advising Wife that her willful refusal to execute the deed and honor the terms of the parties'
agreement constitutes contumacious conduct. Said letter again requested Wife execute the deed
to the Marital Residence. A copy ofthe September 11, 200 I letter is attached hereto as Exhibit
"B" and is incorporated herein by reference.
14. Husband hand delivered counsel's September 11 th letter to Wife and,
simultaneojIsly therewith, presented a deed to the Marital Residence for Wife's execution. Wife
again refused to sign.
15. As a result of Wife's refusal to execute the deed, Husband has been unable to put
the residence up for sale inasmuch as the real estate agents require clear title before they will list
the property for sale.
16. Pursuant to 93105(a) of the Divorce Code, a party to a Property Settlement
Agreement may utilize a remedy or sanction set forth in the Code to enforce the agreement to the
same extent as if the agreement had been an order of court.
17. Pursuant to 93502(e) of the Divorce Code, if a party fails to comply with the
terms of a Property Settlement Agreement the court may enter judgment against the party;
compel the transfer of property; award counsel fees and costs to the non-breaching; and fmd a
party in contempt for his/her willful failure to comply with the terms of the agreement.
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18. Inasmuch as the parties' Property Settlement Agreement clearly provides that
Wife relinquished any and all right to the Marital Residence upon execution ofthe agreement,
and that said agreement further provides that Wife was obligated to execute any and all
documents necessary to effectuate the transfer, Wife's repeated willful refusal to execute a deed
to the residence transferring all of her right and title thereto, constitutes a breach of the parties'
agreement thus permitting Husband to seek enforcement remedies provided for under the
Divorce Code.
19. Husband cannot sell the Marital Residence until Wife executes a deed.
WHEREFORE, Petitioner respectfully requests the Court enter an order:
(a) Finding Respondent in civil contempt for her willful refusal to execute a
deed transferring her interest to 3808 Chippendale Road, Mechanicsburg, Cumberland County,
Pennsylvania 17055 and ordering incarceration to compel the execution; and
(b ) Awarding Petitioner reasonable counsel fees and costs incurred in
prosecuting this action.
Date:
1/11/(,>/
Respectfully sUbmittedw--
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HOWETT, KISSINGER & CONLEY, P.C.
130 Walnut Street
P.O. Box 810
Harrisburg, P A 171 08
Telephone: (717) 234-2616
Counsel for Plaintiffi'Petitioner, Jay S. Stewart
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VERIFICATION
I, Jay S. Stewart, hereby swear and affirm that the facts contained in the foregoing
Petition for Enforcement of Property Settlement Agreement and Contempt are true
of Court
and correct to the best of my knowledge, information and belief and are made subject to the
penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities.
Date: 11 f1 /01
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SEPARATION AND PROPERTY SETTLEMENT AGREEMENT
THIS AGREEMENT made and entered into this ..<J ~ay of ~~
2000, by and between JAY S. STEWART, of Cumberland County, Pennsylvania, party
of the first part, hereinafter referred to as "Husband," and JOY M. STEWART, of
Cumberland County, Pennsylvania, party of the second part, hereinafter referred to as
"Wife.11
WITNESSETH:
WHEREAS, the parties hereto are husband and wife, having been married on or
about April 21, 1995; and
WHEREAS, certain differences have arisen between the parties as a consequence
of which they intend to live separate and apart from each other during the rest of their
natural Ii ves; and
WHEREAS, the parties desire to confirm their separation and desire to enter into
an agreement for the final settlement of their property and affairs; and
WHEREAS, the parties intend to dissolve their marital status by means of a
divorce pursuant to Section 3301 [c] of the Divorce Code of Pennsylvania.
NOW, THEREFORE, in consideration of the foregoing and in further
consideration of the covenants and promises hereinafter mutually to be kept and
performed by each party hereto, as well as for other good and valuable considerations, it
is agreed as follows:
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L SEPARATION. It shall be lawful for each party at all times hereafter to live
separate and apart from the other party, at such place or places as he or she from
time to time may choose or deem fit.
2. NON-INTERFERENCE. Each party shall be free from interference,
authority and control, direct or indirect, by the other in all respects as fully as ifhe
or she were single and unmarried. Each may, for his or her separate use or benefit,
conduct, carry on and engage in any business, occupation, profession or
employment which to him or her may seem advisable. Neither party shall molest,
harass, disturb or malign the other or the family of said other, nor compel or
attempt to compel the other to cohabit or dwell with him or her.
3. MUTUAL RELEASES. Husband relinquishes his inchoate intestate right in
the estate of Wife, and Wife relinquishes her inchoate intestate right in the estate
of Husband, and each of the parties hereto by these presents, for himself or
herself, his or her heirs, executors, administrators or assigns, does remise, release,
quitclaim, and forever discharge the other party hereto, his or her heirs, executors,
administrators or assigns, or any of them, of and from any and all claims,
demands, damages, actions, causes of actions, or suits at law or in equity, of
whatsoever kind or nature, for or because of any matter or thing done, omitted, or
suffered to be done by said party prior to and including the date hereof; except
that his release shall in no way exonerate or discharge either party hereto from the
obligations and promises made and imposed by reason of this Agreement, and
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shall in no way affect any cause of action in absolute divorce which either party
may have against the other party.
4. MARITAL PROPERTY. The parties hereto acknowledge and agree that
they acquired various assets and debts before and during their marriage, whether
the same were held jointly or individually by the parties hereto, including but not
necessarily limited to:
(a) The marital residence, a single family home located at 3808
Chippendale Road, Mechanicsburg, PA., which the parties purchased
in 1999. The said marital residence is titled to both Husband and
Wife, is worth approximately $205,000, has a mortgage of
approximately $145,000 held by National City Bank, and has an equity
value of approximately $60,000.
(b) Household goods, contents, fumiture and furnishings located in the
family residence.
(c) Husband's 40 1 (k) plan through his previous employer, Honda of
America Manufacturing, Inc., for whom Husband was employed from
1992 until May, 1998. Said plan has a value of approximately
$23,000.
(d) Husband's 1992 Dodge Stealth, purchased prior to the marriage and
titled in the names of both Husband and Wife.
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(e) Husband's 1994 Chevrolet Suburban, purchased during the marriage
and titled in Husband's name. Said vehicle is encumbered by a loan
for which payments of $388 per month are due until January, 2001.
(t) Husband's IRA account with Fidelity Investments, worth
appfClximately $65,000. Contributions into said IRA were made by
husband prior to the marriage of the parties.
(g) A joint savings account at Harris Savings Bank, worth approximately
$10,000 at the time of separation. Subsequent to separation of the
parties, approximately $5,000 has been paid to satisfy marital
obligations. The remaining amount was placed in a savings account
under Husband's name at Harris Savings Bank.
(h) Two joint checking accounts at Harris Savings Bank, maintained for
the purpose of paying current expenses, their combined estimated
value being less than $2,000 at the time of separation.
(i) Husband's business, a sole proprietorship known as Nirvana Boats, of
unknown value, located at 314 Stewart Road, Mill Run, Pennsylvania.
U) Husband's farm house property at Mill Run, PA, purchased prior to
marriage, worth approximately $75,000 to $80,000, and unencumbered
by any lien.
(k) Household goods, contents, furniture and furnishings located in
Husband's farm house.
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(1) Various items of personal property of a personal nature.
5. DISTRIBUTION OF MARITAL PROPERTY. The parties hereto covenant
and agree that the assets described in Paragraph 4, above, have been or are hereby
being divided and distributed between them as follows:
(a) Husband and Wife agree that Wife shall receive from the Husband four
thousand dollars ($4,000.00) cash upon execution of this Agreement,
and thirty-six thousand dollars ($36,000.00) cash in a lump sum, to be
paid thirty (30) days after this Agreement is executed, or at such time
as Husband receives the bequeath from his father's estate, which is
currently in probate, whichever event shall take place later.
(b) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the marital residence, as well as to the household goods,
contents, furniture and furnishings located in the family residence.
Wife covenants and agrees that Husband shall be and remain the sole
and separate owner of same. Husband shall be responsible for all debt
and expenses related to the marital residence.
(c) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's 40l(k) plan established through Honda of
America Manufacturing, Inc., and Wife covenants and agrees that
Husband shall be and remain the sole and separate owner of same.
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(d) Husband shall provide to Wife ownership and possession of Husband's
1992 Dodge Stealth and Husband covenants and agrees that Wife shall
be and remain the sole and separate owner of same.
(e) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's 1994 Chevrolet Suburban. Wife covenants and
agrees that Husband shall be and remain the sole and separate owner of
same. Husband shall be responsible for all debt related to said vehicle.
(t) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's IRA account with Fidelity Investments, and Wife
covenants and agrees that Husband shall be and remain the sole and
separate owner of same.
(g) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the joint savings account that existed at Harris Savings at
the time of separation, and in the savings account established by
Husband with approximately half of the proceeds from said joint
savings account. Wife covenants and agrees that Husband shall be and
remain the sole and separate owner of same.
(h) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the two joint checking accounts that existed at Harris
Savings Bank at the time of separation for the purpose of paying
current expenses. Wife covenants and agrees that Husband shall be
and remain the sole and separate owner of same.
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(i) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to Husband's business known as Nirvana
Boats. Wife relinquishes and disclaims any and all ownership, right,
title and interest or entitlement in or to said business and assets. Wife
covenants and agrees that Husband's sole proprietorship and its assets
shall be and remain the sole and separate property of Husband.
G) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to Husband's farm house property and
Wife covenants and agrees that Husband's farm house property shall
be and remain the sole and separate property of Husband.
(k) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to the household goods, contents, furniture
and furnishings previously located in Husband's farm house and Wife
covenants and agrees that said household goods, contents, furniture
and furnishings shall be and remain the sole and separate property of
Husband.
(1) Each ofthe parties hereto relinquishes and disclaims any and all
ownership, right, title and interest in or to the personal effects of the
other.
6. EQUITABLE PROPERTY. This Agreement constitutes an equitable division of
the parties' marital property. The parties have determined that the division of this
property conforms with regard to the rights of each party. The division of existing
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marital property is not intended by the parties to constitute in any way a sale or
exchange of assets.
7. CUSTODY AND VISITATION. Custody and visitation has been stipulated by
and between the parties under a separate CUSTODY AGREEMENT filed as an
order of court prior to the filing of this SEPARATION AND PROPERTY
SETTLEMENT AGREEMENT.
8. SUPPORT A.ND A.LlMONY. Husband and Wife have agreed to a child support
arrangement that is specified under the aforementioned separate CUSTODY
AGREEMENT between the parties filed as an order of court prior to the filing of
this SEPARATION AND PROPERTY SETTLEMENT AGREEMENT. It is
agreed by Husband and Wife that neither party be obligated to pay to the other
party any support or alimony other than that provided for under the
aforementioned CUSTODY AGREEMENT.
9. TAX EXEMPTIONS. Wife agrees that Husband shall be entitled to claim both
children, Justin James Stewart and Joshua Hayden Stewart, as Husband's
exemptions on all future federal income tax returns. Wife agrees to execute and
deliver to Husband, upon the execution and delivery of this Agreement, IRS Form
8332, releasing her claim of exemption to Justin James Stewart and Joshua
Hayden Stewart for all future years.
10. INCOME TAX RETURN. In the event that any federal income tax is owed for
any year in which a joint federal income tax return was filed prior to the execution
of this agreement, the parties hereby agree that Husband shall pay one-hundred
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percent (100%) of the amount owed. In the event that any federal income tax
refund is due for any years in which a joint federal income tax return was filed
prior to the execution ofthis agreement, the parties hereby agree that Wife shall be
entitled to one-eighth (12.5%) and Husband shall be entitled to seven-eighth
(87.5%) of the money refunded.
11. INDEMNIFICATION FOR PAST DEBTS. Except as otherwise provided in
Paragraph 5, above, each of the parties hereto covenants and agrees to assume full
responsibility for and to pay all debts. and obligations of whatsoever kind or nature
incurred individually by that party prior to the day and date of this Agreement, and
each of the parties hereto hereby covenants and agrees to indemnity the other
party and save him or her harmless from all liability or claim on account of said
debts and obligations from and after the date hereof.
12. FUTURE OWNERSHIP OF PROPERTY. Each ofthe parties hereto may
hereafter own and enjoy, independently of any claims or rights of the other, all
items of personal and real property, tangible or intangible, hereafter acquired by
him or her, with full power in him or her to dispose of the same as fully and
effectively in al.l respects and for all purposes as though he or she were unmarried.
13, MUTUAL RELEASES. The parties acknowledge that under prevailing
Pennsylvania law they each have certain possible fiscal rights, including but not
limited to the following: spousal support, alimony pendente lite in the event of a
divorce, permanent alimony subsequent to a divorce, recovery of counsel fees,
costs and expenses in the event of a divorce, and equitable distribution of marital
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property. It is the intention of the parties hereto that all of the foregoing rights and
remedies, with the exception of those otherwise provided in this Agreement and
aforementioned Custody Agreement, are hereby waived and forever released and
that this Agreement shall have the effect of a final Order of Court relieving each
party of the obligation to the other for any and all of the foregoing possible rights
and remedies. The parties have effected an equitable distribution of their marital
property and neither will seek further distribution by any action at law or in equity.
14. EFFECT OF DIVORCE DECREE. The.parties covenant and agree that unless
otherwise specifically provided herein, this Agreement shall continue in full force
and effect after such time as a final decree in divorce may be entered with respect
to the parties.
15. INDEMNIFICATION FOR FlJTURE DEBTS. Each of the parties hereby
covenants and agrees with the other party not to make, incur or attempt to make or
incur any debt or obligation for or on behalf of the other party hereto, or for which
the other party may be held liable, from and after the date hereof, and each of the
parties hereto hereby covenants and agrees to indemnifY the other party and save
him or her harmless from all liability or claim on account of said debt or
obligations from and after the date hereof
16. OTHER DOCUMENTS. Each of the parties hereto shall, from time to time, at
the request of the other party, execute, acknowledge and deliver unto said other
party any and all further documents or instruments which may be reasonably
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required to give full force and effect to the terms and provisions of this
Agreement.
17. DIVORCE. This Agreement shall not be construed to affect or bar the right of
either Husband or Wife to an absolute divorce on legal and truthful grounds if
they now exist or may hereafter arise. This Agreement is not intended to condone
and shall not be deemed to be a condonation on the part of either party hereto of
any act or acts on the part of the other party which have occurred prior to or which
may occur subsequent to the date hereof. It is understood, however, that Husband
will pursue an action in divorce pursuant to Section 330l(c) of the Divorce Code
of Pennsylvania, on the grounds that the marriage is irretrievably broken, and that
both parties agree to execute and file the appropriate affidavits of consent
necessary to complete said action in divorce on the basis of mutual consent.
18. SEVERABILITY. The waiver of any term, condition, clause or provision of this
Agreement shall in no way be deemed or considered a waiver of any other term,
condition, clause or provision of this Agreement, and if any provision of this
Agreement is held to be invalid or unenforceable by a court of competent
jurisdiction, all other provisions shall nevertheless continue to be in full force and
effect.
19. LAW OF PENNSYLVANIA APPLICABLE. Both parties covenant and agree
that they have had ample and sufficient time to carefully and fully review the
terms and provisions of this Agreement and to seek and obtain the advice and
counsel of an attorney with respect to the same. Husband has engaged the
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services of G. Patrick O'Connor, Esquire. Wife has had the opportunity to engage
legal counsel of her choice, and each party has carefully reviewed the terms and
conditions of this Agreement with his or her respective counsel. Both parties
covenant and agree that they fully understand the facts upon which this
Agreement is premised and based, that they believe this Agreement to be fair and
equitable, that said Agreement is being entered into freely and voluntarily by each
of them, and that the execution of this Agreement is not the result of any duress or
undue influence and that it is not the result of any collusion or improper or illegal
agreement or agreements.
20. INTEGRATION. This Agreement constitutes the entire understanding between
the parties and supersedes any and all prior agreements and negotiations between
them. Both parties further agree that there are no covenants, conditions,
representations or agreements, oral or written, of any nature whatsoever, other
than those contained herein.
21. AGREEMENT BINDING UPON HEIRS. This Agreement shall be binding
upon the parties hereto and their respective heirs, executors, administrators and
assigns.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have hereunto set their hands and seals the day and year first above written.
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WITNESSETH:
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COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND )
On this, the Qj Sr day of ~ '
2000, before me, a Notary Public in and forfhe state and county aforesaid, the
undersigned officer, personally appeared JOY M. STEWART, known to
me (or satisfactorily proven) to be the person described in the foregoing instrument,
and acknowledged that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
W',()o ,e <.\J ~
Notary Public ~ ,
(SEAL)
Notarial Seal
William L. Grubb, Notary Public
Lower Allen Twp., C~mberiand County
My CommissionExplr~s Aug. 13. 2001
COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND )
On this, the ,;21 sr day of ~ '
2000, before me, a Notary Public in and for the state and county aforesaid, the
undersigned officer, personally appeared JAY S. STEWART, known
to me (or satisfactorily proven) to be the person described in the foregoing instrument,
and acknowledged that she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
(SEAL)
Notarial Seal .
William L. Grubb, Notary PubliC
Lower Allen Twp.. C~mberiand County
My commission Expires Aug. 13,2001
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UW OFFICES OF
HOWETT, KISSINGER & CONLEY, P.C.
130 WALNUT STREET
POSTomCEBOX 810
l!A1uuSBURG, PENNsnvANlA 17108
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JOHN C. HOWETT, JR.
DONALD T. KISSINGER
CINDY S. CONLEY
DARREN J. HOLST
September 11, 2001
(717) 234-2616
p)(X (717) 2J4-5402
DEBRA M. SHIMP
Legal Assistant
VIA HAND DELIVERY
Joy M. Stewart
3074 Bumblebee Road
Accident, lvID
Re: Stewart v. Stewart
Dear Ms. Stewart:
I write on behalf of your estranged husband, Jay Stewart.
On September 21,2000, you and Jay executed a Separation and Property Settlement
Agreement, which clear:1y delineated the rights and obligations of the parties with respect to your
physical separation and ultimate divorce. In accordance with paragraph 5(b) of the Agreement,
Mr. Stewart received the marital residence located 380S Chippendale Road, Mechanicsburg,
Pennsylvania as his sole and separate property, and you relinquished all right, title and interest
you may have had to said residence. Furthermore, pursuant to paragraph 16 of the Agreement,
you were obligated to execute all documents and instruments necessary to give full force and
effect to the Agreement.
Mr. Stewart has .informed our office that you have refused to execute a deed evidencing
him as sole owner of 3808 Chippendale Road. Please be advised that your wilful refusal to
execute the deed constitutes contumacious conduct subjecting you to liability for breach of
contract. If Mr. Stewart is forced to prosecute this action, not only will you be compelled by the
court to execute the deed, but you will be personally liable for all incidental damages that Mr.
Stewart has incurred as a result of your refusal to sign, which may amount to more than $20,000,
and you will also be responsible for all of Mr. Stewart's attorney's fees incurted in the action.
Mr. Stewart's rights are clearly set forth in the property settlement agreement, and it is
not a question of whether you will be found in breach of contract. Rather, the only question is
how much the monetary judgment against you will be. It is simply ridiculous for you to refuse to
execute the deed and force this matter to litigation.
For everyone's sake, I urge you to comply with your agreement and execute the deed to
the marital residence that Mr_ Stewart's presents for your signature.
I S:f!%y
~arren J. Holst
DJH/djk
cc: Jay S. Stewart
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
Plaintiffi'Petitioner
v.
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)
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NO. 00-5784 CIVIL TERM
JOYM. STEWART,
DefendantfRespondent
CIVIL ACTION .- LAW
IN DIVORCE
NOTICE AND ORDER TO APPEAR
Legal proceedings have been brought against you alleging you have wiIlfully disobeyed
an Order of Court or Property Settlement Agreement.
You may defend against the claims set forth in the following pages by filing an answer
with the court no later than twenty (20) days from the date of service hereof. You are further
ordered to appear in person in court on , at .m. in
courtroom _, Cumberland County Courthouse, One Courthouse Square, Carlisle, P A 17013-
3387.
IF YOU DO NOT APPEAR IN PERSON, THE CQURT MAY ISSUE A WARRANT FOR
YOUR ARREST.
If the court finds that you have willfully failed to comply with an Order of Court or
Property Settlement Agreement, you may be found to be in contempt of court and committed to
jail, fined or both.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW WHERE YOU CAN GET LEGAL HELP.
Legal Services, Inc.
8 Irvine Row
Carlisle, P A 17013
(717) 243-9400 or (717) 766-8475
Date:
BY THE COURT:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
JAY S. STEWART,
PlaintiffiPetitioner
v.
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NO. 00-5784 CIVIL TERM
JOY M. STEWART,
DefendantJRespondent
CIVIL ACTION - LAW
IN DIVORCE
Settlement Agreement and Contempt of Court and in support thereof avers as follows:
1. Petitioner is Jay S. Stewart, Plaintiff in the above-captioned divorce action, an
adult individual who resides at 205 Franklintown Road, Dillsburg, York County, Pennsylvania
17019.
2. Respondent is Joy M. Stewart, Defendant in the above-captioned divorce action,
an adult individual who resides at 3074 Bumblebee Road, Accident, Garrett County, Maryland
21520.
3. The parties hereto are husband and wife, having been married on April 21, 1995
but separated on June 8, 2000.
4. During marriage, the parties resided at 3808 Chippendale Road, Mechanicsburg,
Cumberland County, Pennsylvania 17055 (hereinafter referred to as "Marital Residence").
'5. On August 22,2000, Husband filed an action for divorce with the Court of
Common Pleas of Cumberland County at the above-captioned action number requesting a no-
fault divorce and equitable distribution ofthe marital estate.
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6. On September 21, 2000, the parties executed a Property Settlement Agreement
that settled fully and finally their respective financial and property rights and obligations between
each other, including the settling of all matters between them relating to the ownership of real
and personal property. A copy of the parties' Property Settlement Agreement is attached hereto
as Exhibit "A" and is incorporated herein by reference.
7. Paragraph 5(b) of the Agreement provides that Wife "relinquishes and disclaims
any and all ownership, right, title and interest in the Marital Residence, as well as to the
household goods, contents, furniture and furnishings located in the family residence. Wife
covenants and agrees that Husband shaH be and remain the sole and separate owner of same.
Husband shall be responsible for all debt and expenses related to the Marital Residence."
8. Paragraph 16 of the Agreement provides that the parties shall execute any and all
documents or instruments required to give full force and effect to the terms and provisions of the
Agreement.
9. After executing the Agreement, Husband sought on several occasions to have
Wife execute a deed to the Marital Residence to evidence him as sole and exclusive owner
thereof and to effectuate the terms of the parties' agreement.
10. Wife has refused a:ll such requests to execute a deed notwithstanding the fact that,
under the parties' agreement, Husband obtained sole and exclusive ownership of the residence
and has continued since the date of execution to be solely responsible for the mortgage and all
liabilities and debts associated therewith.
11. In August of 200 1, Husband contacted two real estate agents for purposes of
selling the Marital Residence.
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12. As a prerequisite for sale, however, Husband needed to have Wife execute a deed
to the Marital Residence to remove her name therefrom. On the first weekend of September
Husband presented Wife a deed for execution; she refused to execute the deed.
13. On September 11, 2001, counsel for Husband sent Wife a letter via hand delivery
advising Wife that her willful refusal to execute the deed and honor the terms of the parties'
agreement constitutes contumacious conduct. Said letter again requested Wife execute the deed
to the Marital Residence. A copy of the September 11, 2001 letter is attached hereto as Exhibit
"B" and is incorporated herein by reference.
14. Husband hand delivered counsel's September 11 th letter to Wife and,
simultaneously therewith, presented a deed to the Marital Residence for Wife's execution. Wife
again refused to sign.
15. Asa result of Wi fe's refusal to execute the deed, Husband has been unable to put
the residence up for sale inasmuch as the real estate agents require clear title before they will list
the property for sale.
16. Pursuant to s3105(a) of the Divorce Code, a party to a Property Settlement
Agreement may utilize a remedy or sanction set forth in the Code to enforce the agreement to the
same extent as if the agreement had been an order of court.
17. Pursuant to s3502(e) of the Divorce Code, if a party fails to comply with the
terms of a Property Settlement Agreement the court may enter judgment against the party;
compel the transfer of property; award counsel fees and costs to the non-breaching; and find a
party in contempt for hisfher willful failure to comply with the terms of the agreement.
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IS. Inasmuch as the parties' Property Settlement Agreement clearly provides that
Wife relinquished any and all right to the Marital Residence upon execution of the agreement,
and that said agreement further provides that Wife was obligated to execute any and all
documents necessary to effectuate the transfer, Wife's repeated willful refusal to execute a deed
to the residence transferring all of her right and title thereto, constitutes a breach ofthe parties'
agreement thus permitting Husband to seek enfon:ement remedies provided for under the
Divorce Code.
19. Husband cannot sell the Marital Residence until Wife executes a deed.
WHEREFORE, Petitioner respectfully requests the Court enter an order:
(a) Finding Respondent in civil contempt for her willful refusal to execute a
deed transferring her interest to 3S0S Chippendale Road, Mechanicsburg, Cumberland County,
Pennsylvania 17055 and ordering incarceration to compel the execution; and
(b) Awarding Petitionerreasonable counsel fees and costs incurred in
prosecuting this action.
Date:
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R;SP;ctfullY oitt;fl#-
2en J. Holst, Esquire
HOWETT, KISSINGER & CONLEY, P.C.
130 Walnut Street
P.O. Box SIO
Harrisburg,PA l7l0S
Telephone: (717) 234-2616
Counsel for Plaintiff7Petitioner, Jay S. Stewart
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VERIFICATION
I, Jay S. Stewart, hereby swear and affirm that the facts contained in the foregoing
Petition for Enforcement of Property Settlement Agreement and Contempt are true
of Court
and correct to the best of my knowledge, information and belief and are made subject to the
penalties of IS Pa.C.S. ~4904 relating to unsworn falsification to authorities.
Date: 11/1 f01
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L._---..--Ja~te\Yart
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SEPARATION AND PROPERTY SETTLEMENT AGREEMENT
THIS AGREEMENT made and entered into this .<J ~ay of ~~
2000, by and between JAY S. STEWART, of Cumberland County, Pennsylvania, party
of the first part, hereinafter referred to as "Husband," and JOY M. STEWART, of
Cumberland County, Pennsylvania, party of the second part, hereinafter referred to as
"Wife,"
WITNESSETH:
WHEREAS, the parties hereto are husband and wife, having been married on or
about April 21, 1995; and
WHEREAS, certain differences have arisen between the parties as a consequence
of which they intend to live separate and apart from each other during the rest of their
natural lives; and
WHEREAS, the parties desire to confirm their separation and desire to enter into
an agreement for the final settlement of their property and affairs; and
WHEREAS, the parties intend to dissolve their marital status by means of a
divorce pursuant to Section 3301 [c] of the Divorce Code of Pennsylvania.
NOW, THEREFORE, in consideration of the foregoing and in further
consideration of the 'covenants and promises hereinafter mutually to be kept and
performed by each party hereto, as well as for other good and valuable considerations, it
is agreed as follows:
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1. SEPARATION. It shall be lawful for each party at all times hereafter to live
separate and apart from the other party, at such place or places as he or she from
time to time may choose or deem fit.
2. NON-INTERFERENCE. Each party shall be free from interference,
authority and control, direct or indirect, by the other in all respects as fully as ifhe
or she were single and unmarried. Each may, for his or her separate use or benefit,
conduct, carry on and engage in any business, occupation, profession or
employment which to him or her may seem advisable. Neither party shall molest,
harass, disturb or malign the other or the family of said other, nor compel or
attempt to compel the other to cohabit or dwell with him or her.
3. MUTUAL RELEASES. Husband relinquishes his inchoate intestate right in
the estate of Wife, and Wife relinquishes her inchoate intestate right in the estate
of Husband, and each of the parties hereto by these presents, for himself or
herself, his or her heirs, executors, administrators or assigns, does remise, release,
quitclaim, and forever discharge the other party hereto, his or her heirs, executors,
administrators or assigns, or any of them, of and from any and all claims,
demands, damages, actions, calises of actions, or suits at law or in equity, of
whatsoever kind or nature, for or because of any matter or thing done, omitted, or
suffered to be done by said party prior to and including the date hereof; except
that his release shall in no way exonerate or discharge either party hereto from the
obligations and promises made and imposed by reason of this Agreement, and
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shall in no way affect any cause of action in absolute divorce which either party
may have against the other party.
4. MARITAL PROPERTY. The parties hereto acknowledge and agree that
they acquired various assets and debts before and during their marriage, whether
the same were held jointly or individually by the parties hereto, including but not
necessarily limited to:
(a) The marital residence, a single family home located at 3S0S
Chippendale Road, Mechanicsburg, PA., which the parties purchased
in 1999. The said marital residence is titled to both Husband and
Wife, is worth approximately $205,000, has a mortgage of
approximately $145,000 held by National City Bank, and has an equity
value of approximately $60,000.
(b) Household goods, contents, furniture and furnishings located in the
family residence.
(c) Husband's 40l(k) plan through his previous employer, Honda of
America Manufacturing, Inc., for whom Husband was employed from
1992 until May, 1995. Said plan has a value of approximately
$23,000.
(d) Husband's 1992 Dodge Stealth, purchased prior to the marriage and
titled in the names of both Husband and Wife.
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(e) Husband's 1994 Chevrolet Suburban, purchased during the marriage
and titled in Husband's name. Said vehicle is encumbered by a loan
for which payments of$388 per month are due until January, 2001.
(f) Husband's IRA account with Fidelity Investments, worth
approximately $65,000. Contributions into said IRA were made by
husband prior to the marriage of the parties.
(g) A joint savings account at Harris Savings Bank, worth approximately
$10,000 at the time of separation. Subsequent to separation of the
parties, approximately $5,000 has been paid to satisfy marital
obligations. The remaining amount Was placed in a savings account
under Husband's name at Harris Savings Bank.
(h) Two joint checking accounts at Harris Savings Bank, maintained for
the purpose of paying current expenSeS, their combined estimated
value being less than $2,000 at the time of separation.
(i) Husband's business, a sole proprietorship known as Nirvana Boats, of
unknown value, located at 314 Stewart Road, Mill Run, Pennsylvania.
U) Husband's farm house property at Mill Run, PA, purchased prior to
marriage, worth approximately $75,000 to $80,000, and unencumbered
by any lien.
(k) Household goods, contents, furniture and furnishings located in
Husband's farm house.
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(I) Various items of personal property of a personal nature.
5. DISTRIBUTION OF MARITAL PROPERTY. The parties hereto covenant
and agree that the assets described in Paragraph 4, above, have been or are hereby
being divided and distributed between them as foUows:
(a) Husband and Wife agree that Wife shall receive from the Husband four
thousand dollars ($4,000.00) cash upon execution of this Agreement,
and thirty-six thousand dollars ($36,000.00) cash in a lump sum, to be
paid thirty (30) days after this Agreement is executed, or at such time
as Husband receives the bequeath from his father's estate, which is
currently in probate, whichever event shall take place later.
(b) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the marital residence, as well as to the household goods,
contents, furniture and furnishings located in the family residence.
Wife covenants and agrees that Husband shall be and remain the sole
and separate owner of same. Husband shall be responsible for all debt
and expenses related to the marital residence.
(c) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's 40l(k) plan established through Honda of
America Manufacturing, Inc., and Wife covenants and agrees that
Husband shall be and remain the sole and separate owner of same.
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(d) Husband shall provide to Wife ownership and possession of Husband's
1992 Dodge Stealth and Husband covenants and agrees that Wife shall
be and remain the sole and separate owner of same.
(e) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's 1994 Chevrolet Suburban. Wife covenants and
agrees that Husband shall be and remain the sole and separate owner of
same. Husband shall be responsible for all debt related to said vehicle.
(f) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's IRA account with Fidelity Investments, and Wife
covenants and agrees that Husband shall be and remain the sole and
separate owner of same.
(g) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the joint savings account that existed at Harris Savings at
the time of separation, and in the savings account established by
Husband with approximately half of the proceeds from said joint
savings account. Wife covenants and agrees that Husband shall be and
remain the sole and separate owner of same.
(h) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the two joint checking accounts that existed at Harris
Savings Bank at the time of separation for the purpose of paying
current expenses. Wife covenants and agrees that Husband shall be
and remain the sole and separate owner of same.
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(i) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to Husband's business known as Nirvana
Boats. Wife relinquishes and disclaims any and all ownership, right,
title and interest or entitlement in or to said business and assets. Wife
covenants and agrees that Husband's sole proprietorship and its assets
shall be and remain the sole and separate property of Husband.
G) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to Husband's fann house property and
Wife covenants and agrees that Husband's farm house property shall
be and remain the sole and separate preperty of Husband.
(k) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to the household goods, contents, furniture
and furnishings previously located in Husband's fann house and Wife
covenants and agrees that said household goods, contents, furniture
and furnishings shall be and remain the sole and separate property of
Husband.
(I) Each of the parties hereto relinquishes and disclaims any and all
ownership, right, title and interest in or to the personal effects of the
other.
6. EQUITABLE PROPERTY. This Agreement constitutes an equitable division of
the parties' marital property. The parties have determined that the division of this
property conforms with regard to the rights of each party. The division of existing
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marital property is not intended by the parties to constitute in any way a sale or
exchange of assets.
7. CUSTODY AND VISITATION. Custody and visitation has been stipulated by
and between the parties under a separate CUSTODY AGREEMENT filed as an
order of court prior to the filing of this SEPARATION AND PROPERTY
SETTLEMENT AGREEMENT.
8. SUPPORT AND ALIMONY. Husband and Wife have agreed to a child support
arrangement that is specified under the aforementioned separate CUSTODY
AGREEMENT between the parties filed as an order of court prior to the filing of
this SEPARATION AND PROPERTY SETTLEMENT AGREEMENT. It is
agreed by Husband and Wife that neither party be obligated to pay to the other
party any support or alimony other than that provided for under the
aforementioned CUSTODY AGREEMENT.
9. TAX EXEMPTIONS. Wife agrees that Husband shall be entitled to claim bolh
children, Justin James Stewart and Joshua Hayden Stewart, as Husband's
exemptions on all future federal income tax returns. Wife agrees to execute and
deliver to Husband, upon the execution and delivery of this Agreement, IRS Form
8332, releasing her claim of exemption to Justin James Stewart and Joshua
Hayden Stewart for all future years.
10. INCOME TAX RETURN. In the event that any federal income tax is owed for
any year in which a joint federal income tax return was filed prior to the execution
of this agreement, the parties hereby agree that Husband shall pay one-hundred
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percent (100%) of the amount owed. In the event that any federal income tax
refund is due for any years in which ajoint federal income tax retum was filed
prior to the execution of this agreement, the parties hereby agree that Wife shall be
entitled to one-eighth (12.5%) and Husband shall be entitled to seven-eighth
(87.5%) of the money refunded.
11. INDEMNIFICATION FOR PAST DEBTS. Except as otherwise provided in
Paragraph 5, above, each of the parties hereto covenants and agrees to assume full
responsibility for and to pay all debts and obligations of whatsoever kind or nature
incurred individually by that party prior to the day and date of this Agreement, and
each of the parties hereto hereby covenants and agrees to indemnify the other
party and save him or her harmless from all liability or claim on account of said
debts and obligations from and after the date hereof.
12. FUTURE OWNERSHIP OF PROPERTY. Each of the parties hereto may
hereafter own and enjoy, independently of any claims or rights of the other, all
items of personal and real property, tangible or intangible, hereafter acquired by
him or her, with full power in him or her to dispose of the same as fully and
effectively in all respects and for all purposes as though he or she were unmarried.
13. MUTUAL RELEASES. The parties acknowledge that under prevailing
Pennsylvania law they each have certain possible fiscal rights, including but not
limited to the following: spousal support, alimony pendente lite in the event of a
divorce, permanent alimony subsequent to a divorce, recovery of counsel fees,
costs and expenses in the event of a divorce, and equitable distribution of marital
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property. It is the intention of the parties hereto that all of the foregoing rights and
remedies, with the exception of those otherwise provided in this Agreement and
aforementioned Custody Agreement, are hereby waived and forever released and
that this Agreement shal1 have the effect of a final Order of Court relieving each
party of the obligation to the other for any and all of the foregoing possible rights
and remedies. The parties have effected an equitable distribution of their marital
property and neither will seek further distribution by any action at law or in equity.
14. EFFECT OF DIVORCE DECREE. The parties covenant and agree that unless
otherwise specifical1y provided herein, this Agreement shall continue in ful1 force
and effect after such time as a final decree in divorce may be entered with respect
to the parties.
15. INDEMNIFICATION FOR FUTURE DEBTS. Each of the parties hereby
covenants and agrees with the other party not to make, incur or attempt to make or
incur any debt or obligation for or 'on behalf of the other party hereto, or for which
the other party may be held liable, from and after the date hereof, and each of the
parties hereto hereby covenants and agrees to indemnify the other party and save
him or her harmless from all liability or claim on account of said debt or
obligations from and after the date hereof.
16. OTHERDOCUMENTS. Each of the parties hereto shall, from time to time, at
the request of the other party, execute, acknowledge and deliver unto said other
party any and all further documents or instruments which may be reasonably
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required to give full force and effect to the terms and provisions of this
Agreement.
17. DIVORCE. This Agreement shall not be construed to affect or bar the right of
either Husband or Wife to an absolute divorce on legal and truthful grounds if
they now exist or may hereafter arise. This Agreement is not intended to condone
and shall not be deemed to be a condonation on the part of either party hereto of
any act or acts on the part of the other party which have occurred prior to or which
may occur subsequent to the date hereof. It is understood, however, that Husband
will pursue an action in divorce pursuant to Section 330l(c) of the Divorce Code
of Pennsylvania, on the grounds that the marriage is irretrievably broken, and that
both parties agree to execute and file the appropriate affidavits of consent
necessary to complete said action in divorce on the basis of mutual consent.
18. SEVERABILITY. The waiver of any term, condition, clause or provision ofthis
Agreement shall in no way be deemed or considered a waiver of any other term,
condition, clause or provision of this Agreement, and if any provision of this
Agreement is held to be invalid or unenforceable by a court of competent
jurisdiction, all other provisions shall nevertheless continue to be in full force and
effect.
19. LAW OF PENNSYLVANIA APPLICABLE. Both parties covenant and agree
that they have had ample and sufficient time to carefully and fully review the
terms and provisions of this Agreement and to seek and obtain the advice and
counsel of an attorney with respect to the same. Husband has engaged the
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services ofG. Patrick O'Connor, Esquire. Wife has had the opportunity to engage
legal counsel of her choice, and each party has carefully reviewed the terms and
conditions of this Agreement with his or her respective counsel. Both parties
covenant and agree that they fully understand the facts upon which this
Agreement is premised and based, that they believe this Agreement to be fair and
equitable, that said Agreement is being entered into freely and voluntarily by each
of them, and that the execution of this Agreement is not the result of any duress or
undue influence and that it is not the result of any collusion or improper or illegal
agreement or agreements.
20. INTEGRATION. This Agreement constitutes the entire understanding between
the parties and supersedes any and all prior agreements and negotiations between
them. Both parties further agree that there are no covenants, conditions,
representations or agreements, oral or written, of any nature whatsoever, other
than those contained herein.
21. AGREEMENT BINDING UPON HEIRS. This Agreement shall be binding
upon the parties hereto and their respective heirs, executors, administrators and
assigns.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have hereunto set their hands and seals the day and year first above written.
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WITNESSETH:
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Jo M. Stewart
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(SEAL)
(SEAL)
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COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND )
On this, the 2J sr day of ~i.u' ,
2000, before me, a Notary Public in and for the state and county aforesaid, the
undersigned officer, personally appeared JOY M. STEWART, known to
me (or satisfactorily proven) to be the person .described in the foregoing instrument,
and acknowledged that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notarial Seal
William L. Grubb, Notary Public
Lower Allen \wp., C~mberland County
My CommiSSion Expires Aug. 13. 2001
W,Cc , e <\.J ~
Notary Public ~ ,
(SEAL)
COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND )
On this, the ;2./5('" day of ~
2000, before me, a Notary Public in and for the state and county aforesaid, the
undersigned officer, personally appeared JAY S. STEWART, known
to me (or satisfactorily proven) to be the person described in the foregoing instrument,
and acknowledged that she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
u)"~ / ~.Jl
Notary Public
(SEAL)
No.tariaI Seal Public
William L+ Grut.~=nd County
~~w~~~si~EoqnresAuO.13.2001
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IOHN C. HOWETT,IR.
DONALD T. KISSINGER
CINDY S. CONLEY
DARREN I. HOLST
.. ." .. LAw OnICES OF
HOWETI, KISSINGER & CONLEY, P.C.
J 30 WALNUT STREET
POST OFFICE BOX 810
IL<uJs8tJlb, I'EM<m.VA..... 17108
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September 11, 2001
(717)234..2616
FAX (717) 234.S402
DEBRA M. SHIMP
Legal Assistant
VIA HAND DELIVERY
Joy M. Stewart
3074 Bumblebee Road
Accident, MD
Re: Stewart v. Stewart
Dear Ms. Stewart:
I write on behalf of your estranged husband, Jay Stewart.
On September 21,2000, you and Jay executed a Separation and Property Settlement
Agreement, which clearly delineated the rights and obligations of the parties with respect to your
physical separation and ultimate divorce. In accordance with paragraph 5(b) of the Agreement,
Mr. Stewart received the marital residence located 3S0S Chippendale Road, Mechanicsburg,
Pennsylvania as his sole and separate property, and you relinquished all right, title and interest
you may have had to said residence. Furthermore, pursuant to paragraph 16 of the Agreement,
you were obligated to execute all documents and instruments necessary to give full force and
effect to the Agreement.
Mr. Stewart has informed our office that you have refused to execute a deed evidencing
him as sole owner of 3S0S Chippendale Road. Please be advised that your wilful refusal to
execute the deed constitutes contumacious conduct subjecting you to liability for breach of
contract. If Mr. Stewart is forced to prosecute this action, not only will you be compelled by the
court to execute the deed, but you will be personally liable for all incidental damages that Mr.
Stewart has incurred as a result of your refusal to sign, which may amount to more than $20,000,
and you will also be responsible for all of Mr. Stewart's attorney's fees incurred in the action.
l'v!r. Stewart's rights are clearly set forth in the property settlement agreement, and it is
not a question of whether you will be found in breach of contract. Rather, the only question is
how much the monetary judgment against you will be. It is simply ridiculous for you to refuse to
execute the deed and force this matter to litigation.
For everyone's sake, I urge you to comply with your agreement and execute the deed to
the marital residence that Mr. Stewart's presents for your signature.
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~arren J. Holst
DJHfdjk
cc: Jay S. Stewart
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
Plaintiffi'Petitioner
v.
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)
)
)
)
NO. 00-5784 CIVIL TERM
JOYM. STEWART,
DefendantlRespondent
CIVIL ACTION - LAW
IN DIVORCE
NOTICE AND ORDER TO APPEAR
Legal proceedings have been brought against you alleging you have willfully disobeyed
an Order of Court or Property Settlement Agreement.
You may defend against the claims set forth in the following pages by filing an answer
with the court no later than twenty (20) days from the date of service hereof. You are further
ordered to appear in person in court on , at , .m. in
courtroom _' Cumberland County Courthouse, One Courthouse Square, Carlisle, PA 17013-
3387.
IF YOU DO NOT APPEAR IN PERSON, THE COURT MAY ISSUE A WARRANT FOR
YOUR ARREST.
If the court finds that you have willfully failed to comply with an Order of Court or
Property Settlement Agreement, you may be found to be in contempt of court and committed to
jail, fined or both.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW WHERE YOU CAN GET LEGAL HELP.
Legal Services, Inc.
8 Irvine Row
Carlisle, P A 17013
(717) 243-9400 or (717) 766-8475
Date:
BY THE COURT:
J.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
Plaintift7Petitioner
v.
)
)
)
)
)
)
)
00-5784 CIVIL TERM
NO.
JOYM. STEWART,
DefendantfRespondent
CNIL ACTION - LAW
IN DIVORCE (") .:::;,
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PETITION FOR ENFORCEMENT OF PROPERTY SETTLEMENT AG~ENE
ANDCONT-EMPT OF COURT z ( , ,-
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AND NOW, comes Plaintiff, Jay S. Stewart, by and through his counsel, Ho*;tt, -u
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Kissinger & Conley, P.C., who hereby files the instant Petition for Enforcement ofPro~rty;.~
Settlement Agreement and Contempt of Court and in support thereof avers as follows:
1. Petitioner is Jay S. Stewart, Plaintiff in the above-captioned divorce action, an
adult individual who resides at 205 Franklintown Road, Dillsburg, York County, Pennsylvania
17019.
2. Respondent is Joy M. Stewart, Defendant in the above-captioned divorce action,
an adult individual who resides at 3G74 Bumblebee Road, Accident, Garrett County, Maryland
21520.
3. The parties hereto are husband and wife, having been married on April 21, 1995
but separated on June 8, 2000.
4. During marriage, the parties resided at 3808 Chippendale Road, Mechanicsburg,
Cumberland County, Pennsylvania 17055 (hereinafter referred to as "Marital Residence").
5. On August 22, 2000, Husband filed an action for divorce with the Court of
Common Pleas of Cumberland County at the above-captioned action number requesting a no-
fault divorce and equitable distribution of the marital estate.
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6. On September 21, 2000, the parties executed a Property Settlement Agreement
that settled fully and finally their respective financial and property rights and obligations between
each other, including the settling of all matters between them relating to the ownership of real
and personal property. A copy of the parties' Property Settlement Agreement is attached hereto
as Exhibit "A" and is incorporated herein by reference.
7. Paragraph 5(b) of the Agreement provides that Wife "relinquishes and disclaims
any and all ownership, right, title and interest in the Marital Residence, as well as to the
household' goods, contents, furniture and furnishings located in the family residence. Wife
covenants and agrees that Husband shall be and remain the sole and separate owner of same.
Husband shall be responsible fQr all debt and expenses related to the Marital Residence."
8. Paragraph 16 of the Agreement provides that the parties shall execute any and all
documents or instruments required to give full force and effect to the terms and provisions of the
Agreement.
9. After executing the Agreement, Husband sought on several occasions to have
Wife execute a deed to the Marital Residence to evidence him as sole and exclusive owner
thereof and to effectuate the terms of the parties' agreement.
10. Wife has refused all such requests to execute a deed notwithstanding the fact that,
under the parties' agreement, Husband obtained sole and exclusive ownership of the residence
and has continued since the date of execution to be solely responsible for the mortgage and all
liabilities and debts associated therewith.
11. In Augnst of 200 1, Husband contacted two real estate agents for purposes of
selling the Marital Residence.
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12. As a prerequisite for sale, however, Husband needed to have Wife execute a deed
to the Marital Residence to remove her name therefrom. On the first weekend of September
Husband presented Wife a deed for execution; she refused to execute the deed.
13. On September 11, 2001, counsel for Husband sent Wife a letter via hand delivery
advising Wife that her willful refusal to execute the deed and honor the terms of the parties'
agreement constitutes contumacious conduct. Said letter again requested Wife execute the deed
to the Marital Residence. A copy of the September 11, 200 1 letter is attached hereto as Exhibit
"B" and is incorporated herein by reference.
14. Husband hand delivered counsel's September 11 th letter to Wife and,
simultaneously therewith, presented a deed to the Marital Residence for Wife's execution. Wife
again refused to sign.
15. As a result of Wife's refusal to execute the deed, Husband has been unable to put
the residence up for sale inasmuch as the real estate agents require clear title before they will list
the property for sale.
16. Pursuant to g3105(a) ofthe Divorce Code, a party to a Property Settlement
Agreement may utilize a remedy or sanction set forth in the Code to enforce the agreement to the
same extent as if the agreement had been an order of court.
17. Pursuant to g3502(e) of the Divorce Code, if a party fails to comply with the
terms of a Property Settlement Agreement the court may enter judgment against the party;
compel the transfer of property; award counsel fees and costs to the non-breaching; and fmd a
party in contempt for his/her willful failure to comply with the terms of the agreement.
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18. Inasmuch as the parties' Property Settlement Agreement clearly provides that
Wife relinquished any and all right to the Marital Residence upon execution of the agreement,
and that said agreement further provides .that Wife was obligated to execute any and all
documents necessary to effectuate the transfer, Wife's repeated willful refusal to execute a deed
to the residence transferring all of her right and title thereto, constitutes a breach of the parties'
agreement thus permitting Husband to seek enforcement remedies provided for under the
Divorce Code.
19. Husband cannot sell the Marital Residence until Wife executes a deed.
WHEREFORE, Petitioner respectfully requests the Court enter an order:
(a) Finding Respondent in civil contempt for her willful refusal to execute a
deed transferring her interest to 3808 Chippendale Road, Mechanicsburg, Cumberland County,
Pennsylvania 17055 and ordering incarceration to compel the execution; and
(b ) Awarding Petitioner reasonable counsel fees and costs incurred in
prosecuting this action.
Date:
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Respectfully submittedi / /J 1.--
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arren J. Hol t, Esquire
HOWETT, KISSINGER & CONLEY, P.C.
130 Walnut Street
P.O. Box 810
Harrisburg, P A l7l 08
Telephone: (717) 234-2616
Counsel for Plaintiffi'Petitioner, Jay S. Stewart
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VERIFICATION
I, Jay S. Stewart, hereby swear and affirm that the facts contained in the foregoing
peU tion for Enforcement of Property Settlement Agreement and Contempt are true
of COurt
and correct to the best of my knowledge, information and belief and are made subject to the
penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities.
Date: 11/1/01
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SEPARATION AND PROPERTY SETTLEMENT AGREEMENT
THIS AGREEMENT made and entered into this .<I ~ay of ~~
2000, by and between JAY S. STEWART, of Cumberland County, Pennsylvania, party
of the first part, hereinafter referred to as "Husband," and JOY M. STEWART, of
Cumberland County, Pennsylvania, party of the second part, hereinafter referred to as
"Wife."
WITNESSETH:
WHEREAS, the parties hereto are husband and wife, having been married on or
about April 21, 1995; and
WHEREAS, certain differences have arisen between the parties as a consequence
of which they intend to live separate and apart from each other during the rest of their
natural lives; and
WHEREAS, the parties desire to confirm their separation and desire to enter into
an agreement for the final settlement of their property and affairs; and
WHEREAS, the parties intend to dissolve their marital status by means of a
divorce pursuant to Section 330l[c] of the Divorce Code of Pennsylvania.
NOW, THEREFORE, in consideration of the foregoing and in further
consideration ofthe covenants and promises hereinafter mutually to be kept and
performed by each party hereto, as well as for other good and valuable considerations, it
is agreed as follows:
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1. SEPARATION. It shall be lawful for each party at all times hereafter to live
separate and apart from the other party, at such place or places as he or she from
time to time may choose or deem fit.
2. NON-INTERFERENCE. Each party shall be free from interference,
authority and control, direct or indirect, by the other in all respects as fully as if he
or she were single and uumarried. Each may, for his or her separate use or benefit,
conduct, carry on and engage in any business, occupation, profession or
employment which to him or her may seem advisable. Neither party shall molest,
harass, disturb or malign the other or the family of said other, nor compel or
attempt to compel the other to cohabit or dwell with him or her.
3. MUTUAL RELEASES. Husb.and relinquishes his inchoate intestate right in
the estate of Wife, and Wife relinquishes her inchoate intestate right in the estate
of Husband, and each of the parties hereto by these presents, for himself or
herself, his or her heirs, executors, administrators or assigns, does remise, release,
quitclaim, and forever discharge the other party hereto, his or her heirs, executors,
administrators or assigns, or any of them, of and from any and all claims,
demands, damages, actions, causes of actions, or suits at law or in equity, of
whatsoever kind or nature, for or because of any matter or thing done, omitted, or
suffered to be done by said party prior to and including the date hereof; except
that his release shall in no way exonerate or discharge either party hereto from the
obligations and promises made and imposed by reason ofthis Agreement, and
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shall in no way affect any cause of action in absolute divorce which either party
may have against the other party.
4. MARITAL PROPERTY. The parties hereto acknowledge and agree that
they acquired various assets and debts before and during their marriage, whether
the same were held jointly or individually by the parties hereto, including but not
necessarily limite-d to:
(a) The marital residence, a single family home located at 3808
Chippendale Road, Mechanicsburg, PA., which the parties purchased
in 1999. The said marital residence is titled to both Husband and
Wife, is worth approximately $205,000, has a mortgage of
approximately $145,000 held by National City Bank, and has an equity
value of approximately $60,000.
(b) Household goods, contents, furniture and furnishings located in the
family residence.
(c) Husband's 40l(k) plan through his previous employer, Honda of
America Manufacturing, Inc., for whom Husband was employed from
1992 until May, 1998. Said plan has a value of approximately
$23,000.
(d) Husband's 1992 Dodge Stealth, purchased prior to the marriage and
titled in the names of both Husband and Wife.
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(e) Husband's 1994 Chevrolet Suburban, purchased during the marriage
and titled in Husband's name. Said vehicle is encumbered by a loan
for which payments of$388 per month are due until January, 2001.
(t) Husband's IRA account with Fidelity Investments, worth
approximately $65,000. Contributions into said IRA were made by
husband prior to the marriage of the parties.
(g) A joint savings account at Harris Savings Bank, worth approximately
$10,000 at the time of separation. Subsequent to separation of the
parties, approximately $5,000 has been paid to satisfy marital
obligations. The remaining amount was placed in a savings account
under Husband's name at Harris Savings Bank.
(h) Two joint checking accounts at Harris Savings Bank, maintained for
the purpose of paying current expenses, their combined estimated
value being less than $2,000 at the time of separation.
(i) Husband's business, a sole proprietorship known as Nirvana Boats, of
unknown value, located at 314 Stewart Road, Mill Run, Pennsylvania.
U) Husband's farm house property at Mill Run, PA, purchased prior to
marriage, worth approximately $75,000 to $80,000, and unencumbered
by any lien.
(k) Household goods, contents, furniture and furnishings located in
Husband's farm house.
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(1) Various items of personal property of a personal nature.
5. DISTRIBUTION OF MARITAL PROPERTY. The parties hereto covenant
and agree that the assets described in Paragraph 4, above, have been or are hereby
being divided and distributed between them as follows:
(a) Husband and Wife agree that Wife shall receive from the Husband four
thousand dollars ($4,000.00) cash upon execution of this Agreement,
and thirty-six thousand dollars ($:36,000.00) cash in a lump sum, to be
paid thirty (30) days after this Agreement is executed, or at such time
as Husband receives the bequeath from his father's estate, which is
currently in probate, whichever event shall take place later.
(b) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the marital residence, as well as to the household goods,
contents, furniture and furnishings located in the family residence.
Wife covenants and agrees that Husband shall be and remain the sole
and separate owner of same. Husband shall be responsible for all debt
and expenses related to the marital residence.
(c) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's 40l(k) plan established through Honda of
America Manufacturing, Inc., and Wife covenants and agrees that
Husband shall be and remain the sole and separate owner of same.
. .
(d) Husband shall provide to Wife ownership and possession of Husband's
1992 Dodge Stealth and Husband covenants and agrees that Wife shall
be and remain the sole and separate owner of same.
(e) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's 1994 Chevrolet Suburban. Wife covenants and
agrees that Husband shall be and remain the sole and separate owner of
same. Husband shall be responsible for all debt related to said vehicle.
(t) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's IRA account with Fidelity Investments, and Wife
covenants and agrees that Husband shall be and remain the sole and
separate owner of same.
(g) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the joint savings account that existed at Harris Savings at
the time of separation, and in the savings account established by
Husband with approximately half of the proceeds from said joint
savings account. Wife covenants and agrees that Husband shall be and
remain the sole and separate owner of same.
(h) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the two joint checking accounts that existed at Harris
Savings Bank at the time of separation for the purpose of paying
current expenses. Wife covenants and agrees that Husband shall be
and remain the sole and separate owner of same.
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(i) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to Husband's business known as Nirvana
Boats. Wife relinquishes and disclaims any and all ownership, right,
title and interest or entitlement in or to said business and assets. Wife
covenants and agrees that Husband's sole proprietorship and its assets
shall be and remain the sole and separate property of Husband.
U) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to Husband's farm house property and
Wife covenants and agrees that Husband's farm house property shall
be and remain the sole and separate property of Husband.
(k) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to the household goods, contents, furniture
and furnishings previously located in Husband's farm house and Wife
covenants and agrees that said household goods, contents, furniture
and furnishings shall be and remain the sole and separate property of
Husband.
(I) Each of the parties hereto relinquishes and disclaims any and all
ownership, right, title and interest in or to the personal effects of the
other.
6. EQUITABLE PROPERTY. This Agreement constitutes an equitable division of
the parties' marital property. The parties have determined that the division of this
property conforms with regard to the rights of each party. The division of existing
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marital property is not intended by the parties to constitute in any way a sale or
exchange of assets.
7. CUSTODY AND VISITATION. Custody and visitation has been stipulated by
and between the parties under a separate CUSTODY AGREEMENT filed as an
order of court prior to the filing of this SEPARATION AND PROPERTY
SETTLEMENT AGREEMENT.
8. SUPPORT AND ALIMONY. Husband and Wife have agreed to a child support
arrangement that is specified under the aforementioned separate CUSTODY
AGREEMENT between the parties filed as an order of court prior to the filing of
this SEPARATION AND PROPERTY SETTLEMENT AGREEMENT. It is
agreed by Husband and Wife that neither party be obligated to pay to the other
party any support or alimony other than that provided for under the
aforementioned CUSTODY AGREEMENT.
9. TAX EXEMPTIONS. Wife agrees that Husband shall be entitled to claim both
children, Justin James Stewart and Joshua Hayden Stewart, as Husband's
exemptions on all future federal income tax retums. Wife agrees to execute and
deliver to Husband, upon the execution and delivery ofthis Agreement, IRS Form
8332, releasing her claim of exemption to Justin James Stewart and Joshua
Hayden Stewart for all future years.
10. INCOME TAX RETURN. In the event that any federal income tax is owed for
any year in which a joint federal income tax return was filed prior to the execution
of this agreement, the parties hereby agree that Husband shall pay one-hundred
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percent (100%) of the amount owed, In the event that any federal income tax
refund is due for any years in which a joint federal income tax return was filed
prior to the execution of this agreement, the parties hereby agree that Wife shall be
entitled to one-eighth (12,5%) and Husband shall be entitled to seven-eighth
(87,5%) of the money refunded,
11. INDEMNIFICATION FOR PAST DEBTS. Except as otherwise provided in
Paragraph 5, above, each of the parties hereto covenants and agrees to assume full
responsibility for and to pay all debts and obligations of whatsoever kind or nature
incurred individually by that party prior to the day and date of this Agreement, and
each of the parties hereto hereby covenants and agrees to indemnify the other
party and save him or her harmless from all liability or claim on account of said
debts and obligations from and after the date hereof.
12. FUTURE OWNERSHIP OF PROPERTY. Each of the parties hereto may
hereafter own and enjoy, independently of any claims or rights of the other, all
items of personal and real property, tangible or intangible, hereafter acquired by
him or her, with full power in him or her to dispose of the same as fully and
effectively in all respects and for all purposes as though he or she were unmarried.
13. MUTUAL RELEASES, The parties acknowledge that under prevailing
Pennsylvania law they each have certain possible fiscal rights, including but not
limited to the following: spousal support, alimony pendente lite in the event of a
divorce, permanent alimony subsequent to a divorce, recovery of counsel fees,
costs and expenses in the event of a divorce, and equitable distribution of marital
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property. It is the intention of the parties hereto that all of the foregoing rights and
remedies, with the exception of those otherwise provided in this Agreement and
aforementioned Custody Agreement, are hereby waived and forever released and
that this Agreement shall have the effect of a final Order of Court relieving each
party of the obligation to the other for any and all of the foregoing possible rights
and remedies. The parties have effected an equitable distribution of their marital
property and neither will seek further distribution by any action at law or in equity.
14. EFFECT OF DIVORCE DECREE. The parties covenant and agree that unless
otherwise specifically provided herein, this Agreement shall continue in full force
and effect after such time as a final decree in divorce may be entered with respect
to the parties.
15, INDEMNIFICATION FOR FUTURE DEBTS, Each of the parties hereby
covenants and agrees with the other party not to make, incur or attempt to make or
incur any debt or obligation for or on behalf of the other party hereto, or for which
the other party may be held liable, from and after the date hereof, and each of the
parties hereto hereby covenants and agrees to indemnify the other party and save
him or her harmless from all liability or claim on account of said debt or
obligations from and after the date hereof.
16. OTHER DOCUMENTS. Each of the parties hereto shall, from time to time, at
the request of the other party, execute, acknowledge and deliver unto said other
party any and all further documents or instruments which may be reasonably
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required to give full force and effect to the terms and provisions of this
Agreement.
17. DIVORCE. This Agreement shall not be construed to affect or bar the right of
either Husband or Wife to an absolute divorce on legal and truthful grounds if
they now exist or may hereafter arise. This Agreement is not intended to condone
and shall not be deemed to be a condonation on the part of either party hereto of
any act or acts on the part of the other party which have occurred prior to or which
may occur subsequent to the date hereof. It is understood, however, that Husband
will pursue an action in divorce pursuant to Section 3301(c) of the Divorce Code
of Pennsylvania, on the grounds that the marriage is irretrievably broken, and that
both parties agree to execute and file the appropriate affidavits of consent
necessary to complete said action in divorce on the basis of mutual consent.
18, SEVERABILITY. The waiver of any term, condition, clause or provision of this
Agreement shall in no way be deemed or considered a waiver of any other term,
condition, clause or provision of this Agreement, and if any provision of this
Agreement is held to be invalid or unenforceable by a court of competent
jurisdiction, all other provisions shall nevertheless continue to be in full force and
effect.
19. LAW OF PENNSYLVANIA APPLICABLE. Both parties covenant and agree
that they have had ample and sufficient time to carefully and fully review the
terms and provisions of this Agreement and to seek and obtain the advice and
counsel of an attorney with respect to the same. Husband has engaged the
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services of G. Patrick O'Connor, Esquire. Wife has had the opportunity to engage
legal counsel of her choice, and each party has carefully reviewed the terms and
conditions of this Agreement with his or her respective counsel. Both parties
covenant and agree that they fully understand the facts upon which this
Agreement is premised and based, that they believe this Agreement to be fair and
equitable, that said Agreement is being entered into freely and voluntarily by each
of them, and that the execution of this Agreement is not the result of any duress or
undue influence and that it is not the result of any collusion or improper or illegal
agreement or agreements.
20. INTEGRATION. This Agreement constitutes the entire understanding between
the parties and supersedes any and all prior agreements and negotiations between
them. Both parties further agree that there are no covenants, conditions,
representations or agreements, oral or written, of any nature whatsoever, other
than those contained herein.
21. AGREEMENT BlNmNG UPON HEIRS. This Agreement shall be binding
upon the parties hereto and their respective heirs, executors, administrators and
assigns.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have hereunto set their hands and seals the day and year first above written.
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WITNESSETH:
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Jo M. Stewart
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COMMONWEALTH OF J;>ENNSYLVANIA )
: SS.
COUNTY OF CUMBERLAND )
On this, the" '2/.r " day of ~W ,
2000, before me, a Notary Public in and for the state and county aforesaid, the
undersigned officer, personally appeared JOY M. STEWART, known to
me (or satisfactorily proven) to be the person described in the foregoing instrument,
and acknowledged that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notarial Seal
William L. Grubb. Notary Public
Lower Allen Twp.. C~mbertand County
My Commission Exp"es Aug, 13.2001
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Notary Public - ,
(SEAL)
COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND )
On this, the ;2./ sr day of ~
2000, before me, a Notary Public in and for the state and county aforesaid, the
undersigned officer, personally appeared JAY S. STEWART, known
to me (or satisfactorily proven) to be the person described in the foregoing instrument,
and acknowledged that she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
w~ /' ~"Jl
Notary Public
(SEAL)
Notarial Seal Public
William L. GrubbC' N=nd County
Lower Allen Twp.. um 13 2001
My Commission Expires Aug. .
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LAw OmCE.$ OF
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HOWETI, KISSINGER & CONLEY, P.C.
130 WALNUT STREET
POST OFFICE BOX 810
HA1w$8URO. PENNsn.VANlA J 11 08
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JOHN C. HOWETT. JR.
DONALD T. KISSINGER
CINDY S. CONLEY
DARREN J. HOLST
September 11, 2001
(717) 234-2616
FAX (717) 234'S402
DEBRA M. SHIMP
~ga1 Assistant
VIA HAND DELIVERY
Joy M. Stewart
3074 Bumblebee Road
Accident, MD
Re: Stewart v. Stewart
Dear Ms. Stewart:
I write on behalf of your estranged husband, Jay Stewart.
On September 21,2000, you and Jay executed a Separation and Property Settlement
Agreement, whic.h clearly delineated the rights and obligations of the parties with respect to your
physical separation and ultimate divorce. In accordance with paragraph 5(b) of the Agreement,
:NIr. Stewart received the marital residence located 3808 Chippendale Road, Mechanicsburg,
Pennsylvania as his sole and separate property, and you relinquished all right, title and interest
you may have had to said residence. Furthermore, pursuant to paragraph 16 of the Agreement,
you were obli,gated to execute all documents and instruments necessary to give full force and
effect to the Agreement.
Mr. Stewart has informed our office that you have refused to execute a deed evidencing
him as sole owner of 3808 Chippendale Road. Please be advised that your wilful refusal to
execute the deed constitutes contumacious conduct subjecting you to liability for breach of
contract. If Mr. Stewart is forced 1:0 prosecute this action, not only will you be compelled by the
court to execute the deed, but you will be personally liable for all incidental damages that Mr.
Stewart has incurred as a result of your refusal to sign, which may amount to more than $20,000,
and you will also be responsible for all of Mr. Stewart's attorney's fees incurred in the action.
Mr. Stewart's rights are clearly set forth in the property settlement agreement, and it is
not a question of whether you will be found in breach of contract. Rather, the only question is
how much the monetary judgment against you will be. It is simply ridiculous for you to refuse to
execute the deed and force this matter to litigation.
For everyone's sake, I urge you to comply with your agreement and execute the deed to
the marital residence that Mr. Stewart's presents for your signature.
I S:?IIK
~arren J. Holst
DJH/djk
cc: Jay S. Stewart
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
Plaintiffi'Petitioner
v.
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)
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)
NO. 00-5784 CIVIL TERM
JOYM. STEWART,
DefendantJRespondent
CIVIL ACTION - LAW
IN DNORCE
NOTICE AND ORDER TO APPEAR
Legal proceedings have been brought against you alleging you have willfully disobeyed
an Order of Court or Property Settlement Agreement.
You may defend against the claims set forth in the following pages by filing an answer
with the court no later than twenty (20) days from the date of service hereof. You are further
ordered to appear in person in court on , at , .m. in
courtroom _, Cumberland County Courthouse, One Courthouse Square, Carlisle, P A 17013-
3387.
IF YOU DO NOT APPEAR IN P.ERSON, THE COURT MAY ISSUE A WARRANT FOR
YOUR ARREST.
If the court finds that you have willfully failed to comply with an Order of Court or
Property Settlement Agreement, you may be found to be in contempt of court and committed to
jail, fined or both.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW WHERE YOU CAN GET LEGAL HELP.
Legal Services, Inc.
8 Irvine Row
Carlisle, P A 17013
(717) 243-9400 or (717) 766-8475
Date:
BY THE COURT:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
Plaintiffi'petitioner
v.
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)
)
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)
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o
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NO.
00-5784 CNIL TERM
JOY M. STEWART,
Defendant/Respondent
CNIL ACTION - LAW
IN DIVORCE
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PETITION FOR ENFORCEMENT OF PROPERTY SETTLEMENT AGroij:MEN't
AND CONTEMPT OF COURT ~c '"
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AND NOW, comes Plaintiff, Jay S. Stewart, by and through his counsel, Ho~e~ ~
=< to
Kissinger & Conley, P.C., who hereby files the instant Petition for Enforcement of Property
Settlement Agreement and Contempt of Court and in support thereof avers as follows:
1. Petitioner is Jay S. Stewart, Plaintiff in the above-captioned divorce action, an
adult individual who resides at 205 Franklintown Road, Dillsburg, York County, Pennsylvania
17019.
2. Respondent is Joy M. Stewart, Defendant in the above-captioned divorce action,
an adult individual who resides at 3074 Bumblebee Road, Accident, Garrett County, Maryland
21520.
3. The parties hereto are husband and wife, having been married on Apri121, 1995
but separated on June 8, 2000.
4. During marriage, the parties resided at 3808 Chippendale Road, Mechanicsburg,
Cumberland County, Pennsylvania 17055 (hereinafter referred to as "Marital Residence").
5. On August 22, 2000, Husband tiled an action for divorce with the Court of
Common Pleas of Cumberland County at the above-captioned action number requesting a no-
fault divorce and equitable distribution of the marital estate.
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6. On September 21,2000, the parties executed a Property Settlement Agreement
that settled fully and finally their respective financial and property rights and obligations between
each other, including the settling of all matters between them relating to the ownership of real
and personal property. A copy of the parties' Property Settlement Agreement is attached hereto
as Exhibit "A" and is incorporated herein by reference.
7. Paragraph 5(b) of the Agreement provides that Wife "relinquishes and disclaims
any and all ownership, right, title and interest in the Marital Residence, as well as to the
household goods, contents, furniture and furnishings located in the family residence. Wife
covenants and agrees that Husband shall be and remain the sole and separate owner of same.
Husband shall be responsible for all debt and expenses related to the Marital Residence."
8. Paragraph 16 of the Agreement provides that the parties shall execute any and all
documents or instruments required to give full fgrce and effect to the terms and provisions of the
Agreement.
9. After executing the Agreement, Husband sought on several occasions to have
Wife execute a deed to the Marital Residence to evidence him as sole and exclusive owner
thereof and to effectuate the terms of the parties' agreement.
10. Wife has refused all such requests to execute a deed notwithstanding the fact that,
under the parties' agreement, Husband obtained sole and exclusive ownership of the residence
and has continued since the date of execution to be solely responsible for the mortgage and all
liabilities and debts associated therewith.
11. In August of2001, Husband contacted two real estate agents for purposes of
selling the Marital Residence.
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12. As a prerequisite for sale, however, Husband needed to have Wife execute a deed
to the Marital Residence to remove her name therefrom. On the first weekend of September
Husband presented Wife a deed for execution; she refused to execute the deed.
13. On September 11, 2001, counsel for Husband sent Wife a letter via hand delivery
advising Wife that her willful refusal to execute the deed and honor the terms of the parties'
agreement constitutes contumacious conduct. Said letter again requested Wife execute the deed
to the Marital Residence. A copy ofthe September 11, 2001 letter is attached hereto as Exhibit
"B" and is incorporated herein by reference.
14. Husband hand delivered counsel's September 11 th letter to Wife and,
simultaneously therewith, presented a deed to the Marital Residence for Wife's execution. Wife
again refused to sign.
15. As a result of Wife's refusal to execute the deed, Husband has been unable to put
the residence up for sale inasmuch as the real estate agents require clear title before they will list
the property for sale.
16. Pursuant to ~3105(a) of the Divorce Code, a party to a Property Settlement
Agreement may utilize a remedy or sanction set forth in the Code to enforce the agreement to the
same extent as if the agreement had been an order of court.
17. Pursuant to ~3502(e).ofthe Divorce Code, if a party fails to comply with the
terms of a Property Settlement Agreement the court may enter judgment against the party;
compel the transfer of property; award counsel fees and costs to the non-breaching; and find a
party in contempt for his/her willful failure to comply with the terms ofthe agreement.
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18. Inasmuch as the parties' Property Settlement Agreement clearly provides that
Wife relinquished any and all right to the Marital Residence upon execution of the agreement,
and that said agreement further provides that Wife was obligated to execute any and all
documents necessary to effectuate the transfer, Wife's repeated willful refusal to execute a deed
to the residence transferring all of her right and title thereto, constitutes a breach of the parties'
agreement thus permitting Husband to seek enforcement remedies provided for under the
Divorce Code.
19. Husband cannot sell the Marital Residence until Wife executes a deed.
WHEREFORE, Petitioner respectfully requests the Court enter an order:
(a) Finding Respondent in civil contempt for her willful refusal to execute a
deed transferring her interest to 3808 Chippendale Road, Mechanicsburg, Cumberland County,
pennsylvania 17055 and ordering incarceration to compel the execution; and
(b ) Awarding Petitioner reasonable counsel fees and costs incurred in
prosecuting this action.
Date:
//It/DJ
R;SP;.ctfuIlY oitt;1l#-
2en J. Holst, Esquire
HOWETT, KISSINGER & CONLEY, P.C.
130 Walnut Street
P.O. Box 810
Harrisburg,PA 17108
Telephone: (717) 234-2616
Counsel for Plaintiffi'Petitioner, Jay S. Stewart
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VERIFICATION
I, Jay S. Stewart, hereby swear and affirm that the facts contained in the foregoing
Petition for Enforcement of Property Settlement Agreement and Contempt are true
of Court
and correct to the best of my knowledge, information and belief and are made subject to the
penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities.
Date: 11/1/01
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SEPARATION AND PROPERTY SETTLEMENT AGREEMENT
THIS AGREEMENT made and entered into this ,2/ ~ay of ~~
2000, by and between JAY S. STEWART, of Cumberland County, Pennsylvania, party
of the first part, hereinafter referred to as "Husband," and JOY M. STEWART, of
Cumberland County, Pennsylvania, party of the second part, hereinafter referred to as
"Wife."
WITNESSETH:
WHEREAS, the parties hereto are husband and wife, having been married on or
about April 21, 1995; and
WHEREAS, certain differences have arisen between the parties as a consequence
of which they intend to live separate and apart from each other during the rest of their
natural lives; and
WHEREAS, the parties desire to confirm their separation and desire to enter into
an agreement for the final settlement oftheir property and affairs; and
WHEREAS, the parties intend to dissolve their marital status by means of a
divorce pursuant to Section 330 1 [c] of the Divorce Code of Pennsylvania.
NOW, THEREFORE, in consideration of the foregoing and in further
consideration of the covenants and promises hereinafter mutually to be kept and
performed by each party hereto, as well as for other good and valuable considerations, it
is agreed as follows:
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I. SEPARATION. It shall be lawful for each party at all times hereafter to live
separate and apart from the other party, at such place or places as he or she from
time to time may choose or deem fit.
2. NON-INTERFERENCE. Each party shall be free from interference,
authority and control, direct or indirect, by the other in all respects as fully as ifhe
or she were single and unmarried. Each may, for his or her separate use or benefit,
conduct, carry on and engage in any business, occupation, profession or
employment which to him or her may seem advisable. Neither party shall molest,
harass, disturb or malign the other or the family of said other, nor compel or
attempt to compel the other to cohabit or dwell with him or her.
3. MUTUAL RELEASES. Husband relinquishes his inchoate intestate right in
the estate of Wife, and Wife relinquishes her inchoate intestate right in the estate
of Husband, and each of the parties hereto by these presents, for himself or
herself, his or her heirs, executors, administrators or assigns, does remise, release,
quitclaim, and forever discharge the other party hereto, his or her heirs, executors,
administrators or assigns, or any of them, of and from any and all claims,
demands, damages, actions, causes of actions, or suits at law or in equity, of
whatsoever kind or nature, for or because of any matter or thing done, omitted, or
suffered to be done by said party prior to and including the date hereof; except
that his release shall in no way exonerate or discharge either party hereto from the
obligations and promises made and imposed by reason of this Agreement, and
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shall in no way affect any cause of action in absolute divorce which either party
may have against the other party.
4. MARITAL PROPERTY. The parties hereto acknowledge and agree that
they acquired various assets and debts before and during their marriage, whether
the same were held jointly or individually by the parties hereto, including but not
necessarily limited to:
(a) The marital residence, a single family home located at 3808
Chippendale Road, Mechanicsburg, PA., which the parties purchased
in 1999. The said marital residence is titled to both Husband and
Wife, is worth approximately $205,000, has a mortgage of
approximately $145,000 held by National City Bank, and has an equity
value of approximately $60,000.
(b) Household goods, contents, furniture and furnishings located in the
family residence.
(c) Husband's 40 1 (k) plan through his previous employer, Honda of
America Manufacturing, Inc., for whom Husband was employed from
1992 until May, 1998. Said plan has a value of approximately
$23,000.
(d) Husband's 1992 Dodge Stealth, purchased prior to the marriage and
titled in the names of both Husband and Wife.
,
(e) Husband's 1994 Chevrolet Suburban, purchased during the marriage
and titled in Husband's name. Said vehicle is encumbered by a loan
for which payments of$388 per month are due until January, 2001.
(f) Husband's IRA account with Fidelity Investments, worth
approximately $65,000. Contributions into said IRA were made by
husband prior to the marriage of the parties.
(g) A joint savings account at Harris Savings Bank, worth approximately
$10,000 at the time of separation. Subsequent to separation of the
parties, approximately $5,000 has been paid to satisfy marital
obligations. The remaining amount was placed in a savings account
under Husband's name at Harris Savings Bank.
(h) Two joint checking accounts at Harris Savings Bank, maintained for
the purpose of paying current expenses, their combined estimated
value being less than $2,000 at the time of separation.
(i) Husband's business, a sole proprietorship known as Nirvana Boats, of
unknown value, located at 314 Stewart Road, Mill Run, Pennsylvania.
U) Husband's farm house property at Mill Run, PA, purchased prior to
marriage, worth approximately $75,000 to $80,000, and unencumbered
by any lien.
(k) Household goods, contents, furniture and furnishings 10cated in
Husband's farm house.
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(I) Various items of personal property of a personal nature.
5. DISTRIBUTION OF MARITAL PROPERTY. The parties hereto covenant
and agree that the assets described in Paragraph 4, above, have been or are hereby
being divided and distributed between them as follows:
(a) Husband and Wife agree that Wife shall receive from the Husband four
thousand dollars ($4,000.00) cash upon execution of this Agreement,
and thirty-six thousand dollars ($36,000.00) cash in a lump sum, to be
paid thirty (30) days after this Agreement is executed, or at such time
as Husband receives the bequeath from his father's estate, which is
currently in probate, whichever event shall take place later.
(b) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the marital residence, as well as to the household goods,
contents, furniture and furnishings located in the family residence.
Wife covenants and agrees that Husband shall be and remain the sole
and separate owner of same. Husband shall be responsible for all debt
and expenses related to the marital residence.
(c) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's 401(k) plan established through Honda of
America Manufacturing, Inc., and Wife covenants and agrees that
Husband shall be and remain the sole and separate owner of same.
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(d) Husband shall provide to Wife ownership and possession of Husband's
1992 Dodge Stealth and Husband covenants and agrees that Wife shall
be and remain the sole and separate owner of same.
(e) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's 1994 Chevrolet Suburban. Wife covenants and
agrees that Husband shall be and remain the sole and separate owner of
same. Husband shall be responsible for all debt related to said vehicle.
(f) Wife relinquishes and disclaims any and all ownership, right, title and
interest in Husband's IRA account with Fidelity Investments, and Wife
covenants and agrees that Husband shall be and remain the sole and
separate owner of same.
(g) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the joint savings account that existed at Harris Savings at
the time of separation, and in the savings account established by
Husband with approximately half of the proceeds from said joint
savings account. Wife covenants and agrees that Husband shall be and
remain the sole and separate owner of same.
(h) Wife relinquishes and disclaims any and all ownership, right, title and
interest in the two joint checking accounts that existed at Harris
Savings Bank at the time of separation for the purpose of paying
current expenses. Wife covenants and agrees that Husband shall be
and remain the sole and separate owner of same.
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(i) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to Husband's business-known as Nirvana
Boats. Wife relinquishes and disclaims any and all ownership, right,
title and interest or entitlement in or to said business and assets. Wife
covenants and agrees that Husband's sole proprietorship and its assets
shall be and remain the sole and separate property of Husband.
G) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to Husband's farm house property and
Wife covenants and agrees that Husband's farm house property shall
be and remain the sole and separate property of Husband.
(k) Wife relinquishes and disclaims any and all ownership, right, title and
interest or entitlement in or to the household goods, contents, furniture
and furnishings previously located in Husband's farm house and Wife
covenants and agrees that said household goods, contents, furniture
and furnishings shall be and remain the sole and separate property of
Husband.
(I) Each ofthe parties hereto relinquishes and disclaims any and all
ownership, right, title and interest in or to the personal effects of the
other.
6. EQUITABLE PROPERTY. This Agreement constitutes an equitable division of
the parties' marital property. The parties have determined that the division of this
property conforms with regard to the rights of each party. The division of existing
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marital property is not intended by the parties to constitute in any way a sale or
exchange of assets.
7. CUSTODY AND VISITATION. Custody and visitation has been stipulated by
and between the parties under a separate CUSTODY AGREEMENT filed as an
order of court prior to the filing of this SEPARATION AND PROPERTY
SETTLEMENT AGREEMENT.
8. SUPPORT AND ALIMONY. Husband and Wife have agreed to a child support
arrangement that is specified under the aforementioned separate CUSTODY
AGREEMENT between the parties filed as an order of court prior to the filing of
this SEPARATION AND PROPERTY SETTLEMENT AGREEMENT. It is
agreed by Husband and Wife that neither party be obligated to pay to the other
party any support or alimony other than that provided for under the
aforementioned CUSTODY AGREEMENT.
9. TAX EXEMPTIONS. Wife agrees that Husband shall be entitled to claim both
children, Justin James Stewart and Joshua Hayden Stewart, as Husband's
exemptions on all future federal income tax returns. Wife agrees to execute and
deliver to Husband, upon the execution and delivery of this Agreement, IRS Form
8332, releasing her claim of exemption to Justin James Stewart and Joshua
Hayden Stewart for all future years.
10. INCOME TAX RETURN. In the event that any federal income tax is owed for
any year in which a joint federal income tax return was filed prior to the execution
of this agreement, the parties hereby agree that Husband shall pay one-hundred
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percent (100%) of the amount owed. In the event that any federal income tax
refund is due for any years in which a joint federal income tax retum was filed
prior to the execution of this agreement, the parties hereby agree that Wife shall be
entitled to one-eighth (12.5%) and Husband shall be entitled to seven-eighth
(87.5%) of the money refunded.
11. INDEMNIFICATION FOR PAST DEBTS. Except as otherwise provided in
Paragraph 5, above, each of the parties hereto covenants and agrees to assume full
responsibility for and to pay all debts and obligations of whatsoever kind or nature
incurred individually by that party prior to the day and date of this Agreement, and
each of the parties hereto hereby covenants and agrees to indemnify the other
party and save him or her harmless from all liability or claim on account of said
debts and obligations from and after the date hereof.
12. FUTURE OWNERSHIP OF PROPERTY. Each of the parties hereto may
hereafter own and enjoy, independently of any claims or rights of the other, all
items of personal and real property, tangible or intangible, hereafter acquired by
him or her, with full power in him or her to dispose of the same as fully and
effectively in all respects and for all purposes as though he or she were unmarried.
13. MUTUAL RELEASES. The parties acknowledge that under prevailing
Pennsylvania law they each have certain possible fiscal rights, including but not
limited to the following: spousal support, alimony pendente lite in the event of a
divorce, permanent alimony subsequent to a divorce, recovery of counsel fees,
costs and expenses in the event of a divorce, and equitable distribution of marital
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property. It is the intention of the parties hereto that all of the foregoing rights and
remedies, with the exception of those otherwise provided in this Agreement and
aforementioned Custody Agreement, are hereby waived and forever released and
that this Agreement shall have the effect of a final Order of Court relieving each
party of the obligation to the other for any and all of the foregoing possible rights
and remedies. The parties have effected an equitable distribution of their marital
property and neither will seek further distribution by any action at law or in equity.
14. EFFECT OF DIVORCE DECREE. The parties covenant and agree that unless
otherwise specifically provided herein, this Agreement shall continue in full force
and effect after such time as a final decree in divorce may be entered with respect
to the parties.
15. INDEMNIFICATION FOR FUTURE DEBTS. Each of the parties hereby
covenants and agrees with the other party not to make, incur or attempt to make or
incur any debt or obligation for or on behalf of the other party hereto, or for which
the other party may be held liable, from and after the date hereof, and each of the
parties hereto hereby covenants and agrees to indemnify the other party and save
him or her harmless from all liability or claim on account of said debt or
obligations from and after the date hereof.
16. OTHER DOCUMENTS. Each of the parties hereto shall, from time to time, at
the request of the other party, execute, acknowledge and deliver unto said other
party any and all further documents or instruments which may be reasonably
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required to give full force and effect to the terms and provisions of this
Agreement.
17. DIVORCE. This Agreement shall not be construed to affect or bar the right of
either Husband or Wife to an absolute divorce on legal and truthful grounds if
they now exist or may hereafter arise. This Agreement is not intended to condone
and shall not be deemed to be a condonation on the part of either party hereto of
any act or acts on the part of the other party which have occurred prior to or which
may occur subsequent to the date hereof. It is understood, however, that Husband
\vill pursue an action in divorce pursuant to Section 3301(c) of the Divorce Code
of Pennsylvania, on the grounds that the marriage is irretrievably broken, and that
both parties agree to execute and file the appropriate affidavits of consent
necessary to complete said action in divorce on the basis of mutual consent.
18. SEVERABILITY. The waiver of any term, condition, clause or provision of this
Agreement shall in no way be deemed or considered a waiver of any other term,
condition, clause or provision of this Agreement, and if any provision of this
Agreement is held to be invalid or unenforceable by a court of competent
jurisdiction, all other provisions shall nevertheless continue to be in full force and
effect.
19. LAW OF PENNSYLVANIA APPLICABLE. Both parties covenant and agree
that they have had ample and sufficient time to carefully and fully review the
terms and provisions of this Agreement and to seek and obtain the advice and
counsel of an attorney with respect to the same. Husband has engaged the
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services of G. Patrick O'Connor, Esquire. Wife has had the opportunity to engage
legal counsel of her choice, and each party has carefully reviewed the terms and
conditions of this Agreement with his or her respective counsel. Both parties
covenant and agree that they fully understand the facts upon which this
Agreement is premised and based, that they believe this Agreement to be fair and
equitable, that said Agreement is being entered into freely and voluntarily by each
of them, and that the execution of this Agreement is not the result of any duress or
undue influence and that it is .not the result of any collusion or improper or illegal
agreement or agreements.
20. INTEGRATION. This Agreement constitutes the entire understanding between
the parties and supersedes any and all prior agreements and negotiations between
them. Both parties further agree that there are no covenants, conditions,
representations or agreements, oral or written, of any nature whatsoever, other
than those contained herein.
21. AGREEMENT BINDING UPON HEIRS. This Agreement shall be binding
upon the parties hereto and their respective heirs, executors, administrators and
assigns.
IN WITNESS WHEREOF, the parties hereto, intending to be legallybound
hereby, have hereunto set their hands and seals the day and year first above written.
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WITNESSETH:
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Jo M. Stewart
(SEAL)
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COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND )
On this, the '2/ ,r day of ~1vr ,
2000, before me, a Notary Public in and for the state and county aforesaid, the
undersigned officer, personally appeared JOY M. STEWART, known to
me (or satisfactorily proven) to be the person described in the foregoing instrument,
and acknowledged that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
LJ',Co ,r: <\J ~
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(SEAL)
Notarial Seal ,
William L. Grub!). Notary Public
Lower Allen Twp.. c~mbertand County
My Commission Exp"es Aug. 13. 2001
COMMONWEALTH OF PENNSYLVANIA)
: SS.
COUNTY OF CUMBERLAND )
On this, the ;2./ sr day of ~
2000, before me, a Notary Public in and for the state and county aforesaid, the
undersigned officer, personally appeared JAY S. STEWART, known
to me (or satisfactorily proven) to be the person described in the foregoing instrument,
and acknowledged that she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
w'~ /' ~Jl
Notary Public
(SEAL)
Notarial Seal
WUliam L. Grubb. Notary PublIC
Lower Allen !wp., c~mbeAugrta4~o~8~
My CommissIon ExpIres . .
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JOHN C. HOWEIT. JR.
DONALD T. KISSINGER
CINDY S. CONLEY
DARREN J. HOLST
.. ~l .. L.l.wOmCE.SOF
ROWETI, KISSINGER & CONLEY, P.C.
130 WALNUT STREET
POST OFFICE BOX 810
fWwSBURO, PENNm.VANlA 17108
.. .. .
September 11, 2001
(717) 234-2616
FAX (717) 234-5402
DEBRA M. SHIMP
Legal Assistant
VIA HAND DELIVERY
Joy M. Stewart
3074 Bumblebee Road
Accident, MD
Re: Stewart v. Stewart
Dear Ms. Stewart:
I write on behalfofyour estranged husband, Jay Stewart.
On September 21, 2000, YOll and Jay executed a Separation and Property Settlement
Agreement, which c1early delineated the rights and obligations of the parties with respect to your
physical separation and ultimate divorce. In accordance with paragraph 5(b) of the Agreement,
Mr. Stewart received the marital residence located 3808 Chippendale Road, Mechanicsburg,
Pennsylvania as his sole and separate property, and you relinquished all right, title and interest
you may have had to said residence. Furthermore, pursuant to paragraph 16 of the Agreement,
you were obligated to execute all documents and instruments necessary to give full force and
effect to the Agreement.
Mr. Stewart has informed our office that you have refused to execute a deed evidencing
him as sole owner of 3808 Chippendale Road. Please be advised that your wilful refusal to
execute the deed constitutes contumacious conduct subjecting you to liability for breach of
contract. If Mr. Stewart is forced to prosecute this action, not only will you be compelled by the
court to execute the deed, but you will be personally liable for all incidental damages that Mr.
Stewart has incurred as a result of your refusal to sign, which may amount to more than $20,000,
and you will also be responsible for all of Mr. Stewart's attorney's fees incurred in the action.
Mr. Stewart's rights are clearly set forth in the property settlement agreement, and it is
not a question of whether you will be found in breach of contract. Rather, the only question is
how much the monetary judgment against you will be. It is simply ridiculous for you to refuse to
execute the deed and force this matter to litigation.
For everyone's sake, I urge you to comply with your agreement and execute the deed to
the marital residence that Mr. Stewart's presents for your signature.
I. S:ffIK
~arren J. Holst
DJH/djk
cc: Jay S. Stewart
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JOHN C HOWETT, JR,
DONALD T. KISSINGER
CINDY S" CONLEY
OARREN J, HOLST
LAW OFFICES Of ,
HOWETT, KISSINGER & CONLEY, r:c.
130 WALNUT STREET
POST OFFICE BOX 810
HARRISBURG_ PENNSYLVANIA 17108
(717) 234-2616
FAX (717) 234-5402
DEBRA M" SHIMP
Legal Assistant
November 4, 2002
Attention: GINA
Office ofthe Prothonotary
CUMBERLAND COUNTY COURTHOUSE
1 Courthouse Square
Carlisle, PA 17013
Re: Stewart v, Stewart
No. 00 - 5784 Civil Term
Dear Gina:
Enclosed for filing in the above-referenced matter please find the following documents
for entry of a [mal Decree in Divorce:
1. Affidavit of Service;
2. Vital Statistics Form;
3. Praecipe to Transmit Record;
4. Proposed Decree in Divorce Forms;
5. Copies of the parties' Separation and Property Settlement Agreement of
September 21,2000 and Amendment thereto of December 8, 2002 for the
judge's review only (this should not be docketed but rather is for the
judge's review -- please return these copies to us along with the certified
divorce decree).
6. Pre-stamped envelope addressed to defendant; and
7. Self-addressed, pre-stamped envelope for return of certified divorce
decree.
Thank you for your assistance with this matter.
Sincerely,
~)mmp
Enclosures
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JAYS. STEWART
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
00-5784 CIVIL ACTION LAW
JOY M. STEWART
DEFENDANT
IN CUSTODY
ORDER OF COURT
AND NOW, Friday, November 22, 2002 , upon consideration of the attached Complaint,
it is hereby directed that parties and their respective counsel appear before Melissa P. Greevy, Esq. , the conciliator,
at 301 Market Street, Lemoyne,PA 17043 on Monday, December 16, 2002 at 1:00 PM
for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or
if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary
order. All children age five or older may also be present at the conference. Failure to appear at the conference may
provide grounds for entry of a temporary or permanent order.
The court hereby directs the parties to furnish imy and all existing Protection from Abuse orders,
Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing.
FOR THE COURT.
By: Isl
Melissa P. Gree'llY. Esq.
Custody Conciliator
[/
The Court of Common Pleas of Cumberland County is required by law to comply with the
Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable
accommodations available to disabled individuals having business before the court, please contact our office.
All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must
attend the scheduled conference or hearing.
YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT
HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
Telephone (717) 249-3166
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PENNSYLVANIA
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JAYS. SlEW ART,
PlaintifflRespondent
: THE COURT OF COMMONPIEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
vs.
: No. 00-5784
JOYM SlEWART,
DefendantJPetitioner
: CIVIL ACTION - LAW
: CUSTODY
ORDER OF COTTRT
AND NOW, this day of ,2002, upon consideration of the
attached Petition, it is hereby directed that the parties and their respective counsel appear before
, the conciliator, on the day of ,
2002, at .m., for a Pre-Hearing Custody Conference. At such conference, an effort
will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and
narrow the issues to be heard by the court, and to enter into a temporary order. All children age
five or older may also be present at the conference. Failure to appear at the conference may
provide grounds for entry of a temporary or permanent order.
The court hereby directs the parties to furnish any and aU existing Protection from
Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to
the scheduled conference.
FOR THE COURT:
BY:
The Court of Common Pleas of Cumberland County is required by law to comply with
the Americans with Disabilities Act of 1990. For information about accessible facilities and
reasonable accommodations available to disabled individuals having business before the Court,
please contact our office. All arrangements must be made at least 72 hours prior to any hearing
or business before the court. You must attend the scheduled conference or hearing.
YOU SHOULD TAKE TmS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU
DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORm BELOW TO FIND OUT WHERE YOU CAN
GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, P A 17013
(717)249-3166
~ ~
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JAYS. STEWART,
PlaintifflRespondent
: THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
vs.
: No. 00-5784
JOYM STEWART,
DefendantlPetitioner
: CIVIL ACTION - LAW
: CUSTODY
PF.TlTTON TO Monffi'V rnSTonv ORnF.R
1. The Petitioner, Defendant above, Joy M Stewart, is an adult individual who currently resides
at P.O. Box 872, McHenry, Maryland, 21541.
2. The Respondent, Jay S. Stewart, Plaintiff above, is an adult individual whose current address
is unknown to Petitioner.
3. The Petitioner and Respondent are married, but have been separated for over two years.
There are two dependent children from their relationship, namely Justin James Stewart
(DOB 7/10/93) and Joshua Hayden Stewart (DOB 5/8/96).
4. The Petitioner seeks primary physical custody of the following children:
Name
Present Re~iden(',e
Age
Justin James Stewart
Unknown
9
(7/10/93)
Joshua Hayden Stewart
Unknown
6
(5/8/96)
5. The relationship of the Petitioner to the children is that of natural mother. The relationship
of the Respondent to the children is that of natural father.
6. Petitioner and Respondent have previously agreed to a custody arrangement at the above
docket number. The most recent order has been attached as Exhibit A.
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7. Petitioner does not know of a person not a party to the proceedings who has physical
custody of the children or claims to have physical custody or visitation rights with respect
to the children.
8. The best interests and permanent welfare of the children wil1 be served by granting the relief
requested because:
(a) Petitioner is the natural mother of the children.
(b) Petitioner has established a relationship with the children.
( c) Petitioner desires to exercise parental duties and enjoy the love and affection of the
children.
(d) The children should be permitted to enjoy the 10ve, affection, and emotional support,
which can be provided by their natural mother.
(e) The children would benefit from regular and routine with their mother.
WHEREFORE, Petitioner respectfully requests that a schedule be implemented through
which she is provided the opportunity for routine phone contact with her children and regular and
routine visitation of her children.
Dated: I 0 Ii.. r I (j /I-
Respectfully submitted,
1f!:-~
Jeanne B. Costopoulos, Esquire
ATTORNEY FOR DEFENDANTIPETITIONER
1400N. Second Street
Harrisburg,PA 17102
(717) 221-0900
Supreme Ct ill No. 68735
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JAYS. S1EWART,
Plaintifl7Respondent
: THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
vs.
: No. 00-5784
JOYM S1EWART,
DefendantlPetitioner
: CIVIL ACTION - LAW
: CUSTODY
VERTFTC'A TION
I, Joy M Stewart, Petitioner, hereby verify and state that the facts set forth in the foregoing
Petition are true and correct to the best of my knowledge, information, and belief. I am aware that
false statements herein are made subject to the penalties of 18 PaC.S. ~4904 relating to unsworn
falsification to authorities.
BY: J~'1'>1 f/l/.J~
Joy MQ"Stewart
Dated: I 0.. 1'Z - <!J/)
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JAYS. STEWART,
Plaintift7Respondent
: 1HE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
vs.
: No. 00-5784
JOYM STEWART,
DefendantlPetitioner
: CIVIL ACTION - LAW
: CUSTODY
r.RRTTFTr.A TR OF !':RRVTr.R
I, Jeanne B. Costopoulos, Esquire, hereby certify that this day I served a copy of the attached
Order of Court upon the persons, and in the manner, indicated below, which service satisfies the
requirements of the P A Rules of Civil Procedure, by depositing a copy of the same with the United
States Post Office at Harrisburg, Pennsylvania, through first class mail, prepaid, and addressed as
follows:
Darren J. HoIst, Esquire
HOWETT, KISSINGER & CONLEY, P.C.
130 Walnut Street
P.O. Box 810
Harrisburg, P A 17108
BY:
J~~~
ATTORNEY FOR DEFENDANT/PETITIONER
1400 N. Second Street
Harrisburg,PA 17102
(717) 221-0900
Supreme Ct ID No. 68735
DATED:~(}t....
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jqPR :2 \) 200i rfJ
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
JAY S. STEWART,
Plaintiff
v.
)
)
)
)
)
)
)
Action No. 00-5784 CIVIL TERM
JOYM. STEWART,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
ORDER OF COURT
AND NOW, this .1'/ ~y of ~ ' 2001, it is hereby ORDERED and DECREED
that the terms and conditions of the Stipulation for Entry of a Custody Order by Agreement
attached hereto as Exhibit "A" are incorporated herein by reference and made an order of this
court.
BY THE COURT:
/s/ U~ [! JiudiJ
I I J
.
TRUE COpy Ff~OM r~ECORO
10 T lli"U~rlfldll wl)fJntill, IIIllf0 unto ~t my mod
and th;J $",,1 lit s<>Iid Ctll,\lt ~( (;arll~, Pa.
This .:l</t!:' daY' of ~.:I. .2-f..o/
. (,L,-lA..- (l 111.,;,.. Af4
Prothonotar~
~.~ -,"'c:,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JAY S. STEWART,
Plaintiff
v.
)
)
)
)
)
)
)
No. 00-5784 CIVIL TERM
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JOYM. STEWART,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
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STIPULATION FOR ENTRY OF A CUSTODY ORDER BY AGREEMEN:f I.'
This Stipulation is made this 7fl, day of 1/; r ('/ , 2001, by and between Jay S.
Stewart of York County, Pennsylvania and Joy M. Stewart of Garrett County, Maryland;
WITNESSETH:
WHEREAS, the Plaintiff in the above-captioned action is Jay S. Stewart (hereinafter
referred to as "Father"), social security # 305-66-3174, was born on October 24, 1955, and who
currently resides at 205 Franklintown Road, Dillsburg, York County, Pennsylvania;
WHEREAS, the Defendant in the above-captioned action is Joy M. Stewart (hereinafter
referred to as "Mother"), social security # 219-76-4287, was born on October 12, 1971, and who
currently resides at 3074 Bumble Bee Road, Accident, Garrett County, Maryland;
WHEREAS, the parties' are husband and wife, but have lived separate and apart since on
or about June 28, 2000;
WHEREAS, Father initiated a divorce action in the Court of Common Pleas of
Cumberland County, at action no. 00-5784 Civil Term on August 22, 2000, which is currently
pending befo(e the court;
WHEREAS, the parties' are the natural parents of two minor children: Justin James
Stewart, born July 10, 1993, and Joshua Hayden Stewart, bom May 8,1996;
, ~"', '-J,
WHEREAS, as part of the divorce action Mother and Father entered into a custody
agreement dated September 21, 2000, which was adopted as an Order of Court on September 28,
2000;
WHEREAS, the September 21, 2000 Agreement provides in paragraph six that it shall
continue in full force and effect as an Order of Court until written stipulation of the parties.
WHEREAS, the parties' hereto desire to amend their previous custody agreement and
enter into a new stipulation that promotes the best interests of their children;
NOW, THEREFORE, in consideration of these premises and the mutual promises,
covenants and undertakings set forth herein, and intending to be legally bound hereby, Father and
Mother stipulate and agree as follows:
1. Legal Custodv. Father shall have primary legal custody of the parties' children,
legal custody being defmed as the right to make major decisions effecting the best interest of the
children, including but not limited to medical, religious and educational decisions. Father agrees
that, at Mother's request, he will inform Mother of the children's educational, social and medical
development and will provide copies to Mother of medica 1 and educational records and
information pertaining to the children. Father agrees to notify Mother within a reasonable time of
any matter relating to the children which could reasonably be expected to be of significant concern
to the other.
2. Physical Custody. Father shall have primary physical custody of the minor
children. As primary custodian of the children, Father shall have the right to claim the children as
exemptions on his federal income tax return:
3. Visitation. Except as otherwise provided herein, Mother shall be limited to
visitation with the children on the 1" and 3n1 Saturdays of each month at 3074 Bumble Bee Road,
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Accident, Garrett County, Maryland from 11 :00 a.m. to 6:00 p.m. or at any other date, time or
location agreed upon by the parties. Mother shall not consume alcohol or drugs during her periods
,
of visitation.
4. Transportation. Except as otherwise might be agreed upon by the parties, Mother
shall be responsible for obtaining transportation to and from those sites designated by the parties as
the locus for visitation.
5. Suitable Residence. Mother shall obtain and maintain suitable accommodations
that include, at a minimum, running water, heat, beds for the children, and sufficient provisions for
her and tlie children. Motlier shall maintain a working telephone number within the residence at all
times. For a period of 6 months from the date of this Stipulation, Fatlier agrees to pay for tlie basic
telephone service as well as all long distance charges incurred by Mother from talking with the
children or communicating with Father about periods of visitation and custody provided for in this
Stipulation. Mother shall provide Father with the current telephone number to her residence.
Mother shall provide Father with documentation both as to the monthly amolffit due for basic
telephone service and the monthly amolffit due for long distance charges to which he is responsible
under this paragraph.
6. Partial Custody. It is the intention of the parties to expand Mother's custodial time
with the children once she has demonstrated her ability to be responsible for the children.
Therefore, provided Mother maintains accommodations suitable for the children and has not
consumed alcohol or illegal drugs while she has visitation with the children, the parties agree that
Mother will have partial custody of the children on the 1" and 3n1 weekend of each month from
Saturday at 9:00 a.m. to Slffiday at 6:00 p.m., such that said partial custody does not interfere with
planned family vacations. Father shall notify Mother at least sixty (60) days in advance of any
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family vacations. The following conditions shall be in effect for Mother's periods of partial
custody:
(a)
custody;
(b)
custody;
(c)
Mother shall not consume alcohol during her periods of partial
Mother shall not use any illegal drugs during her periods of partial
Mother shall not leave the children in the custody of family
members, friends or babysitters during her periods of partial custody and;
(d) Mother must either have her own vehicle or have access to a vehicle
in case of any emergencies involving the children;
The periods of partial custody set forth above shall commence no earlier than July 1, 2001.
7. Summer Vacation. If Mother successfully demonstrates her ability to care for the
children, complies with the conditions of this Stipulation and has began to exercise her periods of
partial custody, as set forth above, then in the summer of2002, the parties agree that Mother sb.l!!1
be entitled to two (2) non-consecutive weeks of summer vacation. The summer period being
defmed as the time between the end of the children's school year and the beginning of the
following school year. Mother shall give Father at least sixty (60) days notification from the start
of the summer period as to those weeks in the summer she wants vacation with the children.
8. A~eed Order. The parties agree that this stipulation shall be submitted to the court
with a request that its terms being incorporated by a binding and enforceable Order of Court.
IN WITNESS WHEREOF, the parties hereto affix their hands and seals the day and date
first written above.
avau "L jJ7
WITNESS ~
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WITNESS ;/
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JOYM T
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COMMONWEALTH OF PENNSYL VANIA
r0.7 ef f t:.
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COUNTY OF
BEFORE ME, the undersigned authority, on this day personally appeared JAYS.
STEWART, known to me to be the person who executed the foregoing instrument, and who
acknowledged to me that he executed same for the purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 7 day of
At't'11
,
,2001.
Notarial Seal
R. Marlene Savage. Notary Public
Henry Clay lWp.. Fayette County
My Commission Expires Mar. 6. 2005
Member. Pennsylvania Associalion 0/ Notaries
tu-t'
Notary lie in and for
Commonwealth of Pennsylvania
Typed or printed name of Notary:
H fla.rlert c. ~ tI~9' l"-
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My commission expires: fI fl/,e,h (, ;.. 0 (; J
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF faye. -r 1- '(.,
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BEFORE ME, the undersigned authority, on this day personally appeared JOY M.
STEWART, known to me to be the person who executed the foregoing instrument, and who
acknowledged to me that she executed same for the purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this
A l1/'d
I
7 day of
, 2001.
NotarmlSeal .
R. Marlene Savage, Notary Public
Henry Clay Twp.. Fayette County
My Commission Expires Mar. 6, 2005
Member, PennsylvaniaAssocJaIlon 01 Notaries
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Not Public in and for
Commonwealth of Pennsylvania
Typed or printed name of Notary:
II flarjeHf- SClV&tf6
I
My commission expires: If(u<e-J t, .f}. i?J 3
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DEC)(32002
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JAY S. STEWART,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 00-5784 CIVIL TERM
v.
CIVIL ACTION - LAW
JOY M. STEWART,
IN CUSTODY
Defendant
GUiDO, J. ---
ORDER OF COURT
AND NOW, this Jf,.tk day of December, 2002, upon consideration of the
attached Custody Conciliation Summary Report, it is hereby ordered and directed as
follows:
1. Legal Custody. The parties, Jay S. Stewart and Joy M. Stewart, shall have
shared legal custody of the minor children, Justin James Stewart, born July 10, 1998, and
Joshua Hayden Stewart, May 8, 1996. Each parent shall have an equal right, to be
exercised jointly with the other parent, to make all major non-emergency decisions affecting
the children's general well-being including, but not limited to, all decisions regarding their
health, education and religion. Pursuant to the terms of Pa.C.S. 95309, each parent shall
be entitled to all records and information pertaining to the children including, but not limited
to, medical, dental, religious or school records, the residence address of the children and of
the other parent. To the extent one parent has possession of any such records or
information, that parent shall be required to share the same, or copies thereof, with the
other parent within such reasonable time as to make the records and information of
reasonable use to the other parent. Both parents shall be entitled to full participation in all
educational and medical/treatment planning meetings and evaluations with regard to the
minor children. Each parent shall be entitled to full and complete information from any
physician, dentist, teacher or authority and copies of any reports given to them as parents
including, but not limited to: medical records, birth certificates, school or educational
records, attendance records or report cards. Additionally, each parent shall be entitled to
receive copies of any notices which come from school with regard to school pictures,
extracurricular activities, children's parties, musical presentations, back-to-school night, and
the like.
2. Physical Custody. Father shall have primary physical custody. Mother shall
have periods of partial custody which shall be arranged as follows:
A. Effective December 28, 2002 from Saturday at 9:00 a.m. until
Sunday at 3:00 p.m., on alternating weekends. In the event that the children
have no school on the Monday following Mother's custodial weekend, the
return time shall be 5:00 p.m.
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NO. 00-5784 CIVIL TERM
B. The parties will cooperate in switching custodial weekends upon
request, if the boys have a swim meet on Mother's custodial weekend.
3. Transportation. The parties shall share transportation by meeting at Father's
home on Stewarton Road in Mill Run, Pennsylvania. However, when Mother has obtained a
driver's license and can provide transportation herself, the parties will share transportation
by the parent assuming custody will provide transportation incident to the custodial
exchange.
4. Mother will not consume alcohol during any period of custody or during the
eight hours immediately preceding the commencement of any period of custody.
5. Telephone calls. Telephone calls initiated by Mother shall occur, at minimum,
on WednesdilY and Thursday evenings at 8:00 p.m. Father shall cooperate in making the
children available to speak with their Mother at that time.
6. At all times the parties will respect the privacy of each other's home.
7. The parties will keep each other informed of their current address and
telephone numbers at home and at work. In the event of a change in their residential
address, work or telephone number, the parties will notify the other parent within twenty-four
(24) hours of such change.
8. For the Summer of 2003, each parent shall be entitled to one period of
custody to commence with that parent's custodial weekend and continue uninterrupted for
eight (8) days commencing and ending on Saturdays. Mother's custodial summer vacation
week shall commence the Saturday prior to the Garrett County Fair, which is expected to
begin on or about August 7, 2003. The parties shall provide each other with fifteen (15)
days advance notice of their intended vacation plans. In the event that the parties have
chosen overlapping or conflicting vacation times, the party first providing written notice shall
have choice of vacation, with an exception for Mother to have custody for the week during
which the Garrett County Fair occurs. To commence in the Summer of 2004, the parties
shall be entitled to two (2) vacation custodial periods to run from Saturday to Saturday,
commencing with their custodial weekend, but which shall not run consecutively.
9. Holidays.
A. Mother shall have custody of the children for the weekend before
Thanksgiving each year. Father shall have custody for the Thanksgiving day
each year.
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NO. 00-5784 CIVIL TERM
B. Mother's holiday schedule will be counted toward her weekend
schedule so as to avoid the children traveling on three consecutive weekends.
C. Mother shall have custody for Easter and Mother's Day
weekend. Father shall have custody for Father's Day weekend and
Independence Day.
D. In the event that a holiday falls on the other parent's rotating
weekend, the parties will arrange the schedule to make up the missed
weekend on the following weekend.
Edward E. Guido, J.
Dis!: /Darren J. Holst, Esquire, 130 Walnut Street, P.O. Box 810, Harrisburg, PA 17108
/Jeanne B. Costopoulos, Esquire, 1400 North Second Street, Harris burg, PA 17102
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DEe 2 3 2002
JAY S. STEWART,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 00-5784 CIVIL TERM
v.
CIVIL ACTION - LAW
JOY M. STEWART,
IN CUSTODY
Defendant
CUSTODY CONCILIATION SUMMARY REPORT
IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE
1915.3-8, the undersigned Custody Conciliator submits the following report:
1. The pertinent information concerning the child who is the subject of this
litigation is as follows:
NAME
DATE OF BIRTH
CURRENTLY IN THE CUSTODY OF
Justin James Stewart
Joshua Hayden Stewart
July 10,1993
May 6,1996
Father
Father
2. A Custody Conciliation Conference was held on December 16, 2002. Present
for the conference were: the Father, Jay S. Stewart, and his counsel, Darren J. Holst,
Esquire; the Mother, Joy M. Stewart, and her counsel, Jeanne B. Costopoulos, Esquire.
The Conference was held following the filing of Father's Petition to Modify Custody which
was filed on November 11, 2002.
3. The parties reached an agreement in the for
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Date
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elissa Peel Greevy, Esquire
Custody Conciliator
: 166388
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