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HomeMy WebLinkAbout03-1703 WILLIAM A, ETSWEILER, Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW : NO. OJ - 176a C I;'" l ~E'1L\ DIANE M. ETSWEILER, 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 claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground 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 Courthouse, One Courthouse Square, 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 HELP. Lawyer Referral Service Cumberland County Bar Association 2 Liberty Ave. Carlisle, P A 17013 (717) 249-3166 WILLIAM A. ETSWEILER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LA W NO. 03 - /1Q3 : IN DIVORCE (?io~l~~ DIANE M. ETSWEILER, Defendant COMPLAINT IN DIVORCE UNDER SECTION 3301 eC) OR 3301(D) OF THE DIVORCE CODE AND NOW COMES the above named Plaintiff by his attorney, Gary L. Rothschild, Esquire, and seeks to obtain a decree in Divorce from the above named Defendant, upon the grounds hereinafter more fully set forth: COUNT I - DIVORCE 1. Plaintiff is William A. Etweiler, who currently resides at 260 Skyline View Drive, Carlisle, Cumberland County, Pennsylvania 17013, having so resided since July 1997. 2. Defendant is Diane M. Etsweiler, who currently resides at 260 Skyline View Drive, Carlisle, Cumberland County, Pennsylvania 17013, having so resided since July 1997. 3. Plaintiff and Defendant are sui juris and have both been bona fide residents in the Commonwealth for at least six months immediately previous to the filing of this Complaint. 4. The Plaintiff and Defendant were married on December 28, 1991, in Cumberland County, Pennsylvania. 5. The Plaintiff has been advised that counseling is available and that Plaintiff may have the right to request that the court require the parties to participate in counseling. 6. There have been no prior actions of divorce or for annulment between the parties. 7. The marriage is irretrievably broken. 8. The Defendant is not a member ofthe Armed Services of the United States or any of its allies. 9. The Plaintiff and Defendant are both citizens ofthe United States. 10. Plaintiff avers that there are two children of the parties under the age of eighteen, namely, Ulrich W. Etswei1er, born June 24, 1993 and Rainer P. Etswei1er, born July 8, 1996. WHEREFORE, the Plaintiff prays your Honorable Court to: a) enter a Decree in Divorce from the bonds of matrimony, and b) such other relief as the Court may deem equitable and just. COUNT II EQUITABLE DISTRIBUTION 11. Paragraphs one through ten are hereby incorporated by reference herein as if fully set forth. 12. Plaintiff and Defendant possess various items of both real and personal marital property which are subject to equitable distribution by the Court. 13. Plaintiff requests equitable distribution of the parties' real and personal property. WHEREFORE, Plaintiff prays that Your Honorable Court: (a) Equitably divide and distribute all property, personal and real owned by the parties; and (b) Grant such further relief as the Court may deem equitable and just. 'il / Date:~ Gary . othschi1d, Esquire Supreme Court I.D. No. 62041 2215 Forest Hills Drive, Suite 35 Northwood Office Center Harrisburg, P A 17112 (717) 540-3510 By: Attorney for Plaintiff VERIFICATION I verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. S 4904 relating to unsworn falsification to authorities. ~4J Date A~i1~ ~ Q {-. .r (J , ., I ~ 'Q.. '~ ]:)- - ~'ll )J ..0 '- - 0 (> 0 ." """ . . -.... -.t::. ~ C II) {]v \) c () r 0- r_ - .. ~ I .. :.:J - f ,) l" fe - b J ~ ... r- ~ WILLIAM A. ETSWEILER, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW : NO. 03 - 1703 CIVIL TERM DIANE M, ETSWEILER, Defendant : IN DIVORCE ACCEPTANCE OF SERVICE I accept service of the Complaint In Divorce Under Sectio1l3301 (c) or (d) of the Divorce Code. I certify that I am authorized to accept service as I am the above-captioned defendant. o~. 0/. 0:3 Date ~ ~ CCS~P Diane M, Etsweiler, Defundant 260 Skyline View Drive Carlisle, P A 17013 .. 8 s:: -OeD n1n 2:-- ::z: ( , en '- -< ~ ~.-- L(',-, >e ?: _I -< -, a c...J :::;: J~ () ":1"; "._.~ I Co "'-::J :.v en SAIDlS SHUFF, FLOWER & LINDSAY ATIORNEYS.AT-LAW 26 W. High Street Carlisle, P A " WilLIAM A. ETSWEllER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS, CIVil ACTION - LAW NO, 2003 -1703 CIVil TERM IN DIVORCE DIANE M, ETSWEllER, Defendant DEFENDANT'S AFFIDAVIT OF CONSENT UNDER 1;3301(cl OF THE DIVORCE CODE AND WAIVER OF COUNSELING 1, A Complaint in Divorce under 93301 (c) of the Divorce Code was filed April 14, 2003, 2, The marriage of plaintiff and defendant is irretrievably broken and ninety days have elapsed from the date of filing and service of the Complaint. 3, I consent to the entry of a final Decree in Divorce after service of notice of intention to request entry of the Decree, I verify that the statements made in this Affidavit are true and correct to the best of my knowledge. information and beilef, I understand that false statements herein are made subject to the penalties of 18 Pa,C,S, 4904 relating to unsworn faisification to authorities, Date: OJI.a~/o</ #' . ~~ liIsAJellE3' Diane M, Etsweiler DEFENDANT'S WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DEI:REE UNDER I; 3301 (cl OF THE DIVOIRCE CODE 1, I consent to the entry of a final Decree of Divorce without notice. 2, I understand that I may lose rights concerning ailmony, division of property, lawyer's fees or expenses if I do not ciaim them before a divorce is granted, 3, I understand that I will not be divorced until a Divorce Decree is entered by the Court and that a copy of the Decree will be sent to me immediateiy after it is filed with the Prothonotary, I verify that the statements made in this Affidavit are true and correct to the best of my knowledge, information and belief, I understand that false statements herein are made subject to the penalties of 18 Pa,C,S, 4904 relating to unsworn falsification to authorities Date: o,f/~J'/oy # , J2a4<.).. '1 E/sWejlif Diane M, Etsweiler WILLIAM A. ETSWEILER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO, 03-1703 CNIL TERM CNIL ACTION - LAW DIANE M, ETSWEILER, Defendant IN DIVORCE AFFIDAVIT OF CONSENT 1, A Complaint in Divorce under ~ 3301(C) of the Divorce Code was filed on April 14, 2003. 2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90) days have elapsed from the date of filing and service of the Complaint. 3. I consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 9 4904 relating to unsworn falsification to authorities, Date: oe/~~ B~L4 William A. Etsweiler, Plaintiff ;...' c) '-':' -- ,0- f' "-> c.:.::::. :i2 Ir:;:' '-~ -"1 5=-1 '" ',' .-~ ,.,.... WILLIAM A. ETSWEILER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO, 03-1703 CNIL TERM CNIL ACTION - LAW DIANE M, ETSWEILER, Defendant IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER & 3301 (C) OF THE DIVORCE CODE I. I consent to the entry of a final decree of divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if! do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy ofthe decree will be sent to me immediately after it is filed with the prothonotary, I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. S 4904 relating to unsworn falsification to authorities. Date: f)c/~~ By: /~ William A. Etsweiler, Plaintiff ~; ~~ (f; ,'~ <~, - C) I; -, -:::L _~, ;'lC~, ij ,. MATRIMONIAL SETTLEMENT AGREEMENT THIS AGREEMENT, made thiJ2 (p day 0~-tzo04' between DIANE M. ETSWEILER, hereinafter referred to as "Wife" and WILLIAM A. ETSWEILER, hereinafter referred to "Husband". WITNESSETH: WHEREAS, the parties hereto, being Husband and Wife were lawfully married on December 28, 1991 in Cumberland County, Pennsylvania; and WHEREAS, there were two children born of the parties, namely, Ulrich W. Etsweiler, born June 24,1993 and RainerP. Etsweiler, born July 8,1996; and WHEREAS, Husband has commenced an action in Divorce in the Court of Common Pleas of Cumberland County, docketed to No. 03 - 1703 Civil Term (hereinafter referred to as the "Divorce Action"); and WHEREAS, diverse and unhappy differences, disputes and difficulties have arisen between the parties and it is the intention of Husband and Wife to live separate and apart for the rest of their natural lives, and the parties hereto are desirous of settling fully and fmally their respective financial and property rights and obligations as between each other including, without limitation by specification: the settling of all matters between them relating to the ownership and equitable distribution of real and personal property; the settling of all matters between them relating to the past, present and future support, alimony and/or maintenance of each other; and in 1 ~~ general, the settling of any and all claims and possible claims by one against the other or against their respective estate; and WHEREAS, the parties hereto, Husband being represented by Gary L. Rothschild, Esquire, and Wife being represented by Carol J. Lindsay, Esquire, have each exchanged full and complete information as to the property, assets, and liabilities owned by each and have disclosed to each other and to their attorney(s) full information as to the financial status of both parties hereto. NOW THEREFORE, the parties hereto, in consideration of the above recitals, premises and mutual promises, covenants and undertakings hereinafter set forth and for other good and valuable consideration, receipt of which is hereby acknowledged by each of the parties hereto, Husband and Wife, each intending to be legally bound hereby, and to legally bind their heirs, successors, assigns, and personal representatives, do hereby covenant, promise and agree as follows: 1. INCORPORATION OF PREAMBLE The recitals set forth in the Preamble of this Agreement are incorporated herein and made a part hereof as if fully set forth in the body of the Agreement. 2. AGREEMENT NOT A BAR TO DIVORCE PROCEEDINGS This Agreement shall not be considered to affect or bar the right of Husband and Wife to an absolute divorce on legal grounds if such grounds now exist or shall hereafter exist or to such defense as may be available to either party. This Agreement is not intended to condone and shall not be deemed to be condonation on the part of either party hereto of any act or acts on the part of the other party, which have occasioned the disputes or unhappy differences which have occurred or may occur subsequent to the date hereof. The parties acknowledge that their marriage is irretrievably broken and that they shall secure a mutual consent no-fault divorce pursuant to the 2 ~ -pr1 terms of Section 3301 (c) of the Divorce Code. Each party shall execute an "Affidavit of Consent" and "Waiver of Notice of Intention To Request Entry of a Divorce Decree" upon the expiration of the mandatory ninety (90) day waiting period. 3. EFFECT OF DIVORCE DECREE The parties 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. 4. AGREEMENT TO BE INCORPORATED IN DIVORCE DECREE The parties agree that the terms of this Agreement shall be incorporated into any Divorce Decree which may be entered with respect to them and specifically referenced in the Divorce Decree. 5. NON-MERGER It is the parties' intent that this Agreement does not merge with the Divorce Decree, but rather shall continue to have independent contractual significance. Each party maintains his or her contractual remedies as well as court ordered remedies as the result of the aforesaid incorporation or as otherwise provided by law or statute. Those remedies shall include, but not be limited to, damages, resulting from breach of this Agreement, specific enforcement of this Agreement and remedies pertaining to failure to comply with an Order of Court or Agreement pertaining to equitable distribution, alimony, alimony pendent lite, counsel fees and costs as set forth in the Pennsylvania Divorce Code or other similar statutes now in effect and as amended or hereinafter enacted. 6. DATE OF EXECUTION The "date of execution" or "execution date" of this Agreement shall be defined as the date of execution by the party last executing this Agreement. 3 ~ 1) " 7. DISTRIBUTION DATE The transfer of property, funds, documents and/or any other thing or provided herein shall only take place on the "distribution date" which shall be defined as the date of execution of this Agreement unless otherwise specified herein. 8. FINANCIAL DISCLOSURE The parties confirm that each has relied on the accuracy of the financial disclosure of the other, as an inducement to the execution of this Agreement. 9. SEPARATION Husband and Wife agree that Husband shall be permitted to remain at the marital residence, under the same conditions which presently exist, until November 30, 2004 or such time as the parties mutually agree. During the period of time while Husband continues to reside at the marital residence he shall continue to contribute the sum of Nine Hundred Forty ($ 940.00) Dollars bi-weekly to the "family account" for use in paying bills associated with the marital residence and the parties' minor children. Husband's payments shall cease upon his relocation from the marital residence. Upon Husband's departure from the marital residence, Husband and Wife shall at all times thereafter have the right to live separate and apart from each other and to reside from time to time at such place or places as they respectively deem fit, free from any control, restraint, or interference whatsoever by the other. Neither party shall molest the other or endeavor to compel the other to cohabit or dwell with him or her by any legal or other proceeding. The foregoing provision shall not be taken to be an admission on the part of either Husband or Wife of the lawfulness or unlawfulness of the causes leading to their living apart. 10. DIVISION OF BANK ACCOUNTS AND BROKERAGE ACCOUNTS The parties hereto mutually covenant, acknowledge and agree that they have separated their financial accounts and each agrees to the following: 4 c:l!:J -o"'~ .' A. Husband shall receive and be the sole owner of: i) Regular Shares account number 1196....... with PSECU, with an approximate balance of$ 719.00, as of April 2003. ii) Checking account number 1196..... with PSECU, with an approximate balance of$ 1,312.00, as of April 2003. iii) Any bank accounts in Husband's name alone. B. Wife shall receive and be the sole owner of : i) Checking account number 820122...... with PSECU, with an approximate balance of$ 553.00, as of April 2003. ii) Suncoast Schools FCU Savings account number 8232...-00, with an approximate balance of$ 79.00, as of April 2003. iii) Suncoast Schools FCU Checking account number 8232...-51, with an approximate balance of$ 23.00, as of April 2003. iv) Suncoast Schools FCU Money Market account number 8232...-70, with an approximate balance of$ 11,078.00, as of April 2003. v) All bank accounts in Wife's name alone. C. Joint accounts: i) Checking acconnt number 196402......... with PSECU, also referred to as the "family checking account", with an approximate current balance of$ 300.00. ii) Regular Shares account number 196402......... with PSECU, also referred to as the "family regular shares account", with an approximate current balance of$ 600.00. 5 ~l .' iii) The aforementioned joint accounts are under Husband's social security number. Accordingly, the parties agree to utilize said accounts for only family expenses and to close said accounts upon Husband's relocation from the marital residence, as set forth in paragraph 9 of this Agreement. Any final balances in said accounts, as of the time of closing, shall be divided equally by the parties. The parties hereto mutually covenant, acknowledge and agree that any monies, interest or dividends received subsequent to the execution of this agreement shall be the property of the party receiving the asset from which the payment, interest or dividend arose. The parties hereto mutually covenant, acknowledge and agree that any bank/credit union accounts or brokerage accounts not identified in this paragraph, which is held solely in individual names, shall become the sole and separate property of the party in whose name it is registered. Each party does hereby specifically waive, release, renounce and forever abandon whatever right, title, interest or claim he/she may have in the other party's respective accounts as well as those listed in this paragraph. 11. DIVISION OF AUTOMOBILES. A. Division of Automobiles. The parties acknowledge that they are the owners of two automobiles and agree to the following division of the automobile: (i) The 1986 Honda Civic shall become the sole and exclusive property of Wife. (ii) The 1995 Honda Accord shall become the sole and exclusive property of Husband, This vehicle was traded-in on a new vehicle (2004 Acura TL) in Husband's name alone. Said trade-in was with the consent and approval of Wife. Wife waives any and all claims to Husband's new vehicle. 6 ~ " B. Transfer of Ownership. The parties agree to execute the titles or assignments of lease agreements to the aforesaid vehicle, if appropriate, to effectuate the transfer as herein provided on the date of execution of this Agreement and said executed title/assignments shaH be delivered to the proper party on the distribution date. For the purposes ofthis Paragraph the term "title" shall be deemed to include a "Limited Power of Attorney" if the title or lease agreement to the vehicle is unavailable due to financing arrangements or otherwise, C. Indenmification. In the event any vehicle is subject to a lien, encumbrance, lease or other indebtedness the party receiving said vehicle as his or her property shall (i) take it subject to said lien, encumbrance, lease or other indebtedness; (ii) shall be solely responsible therefore and (iii) agrees to indenmify, protect and save the other party harmless from said lien, encumbrance, lease or other indebtedness. Each of the parties hereto does specifically waive, release, renounce and forever abandon whatever right, title and interest he or she may have in the vehicle(s) that shall become the sole and separate property of the other pursuant to the terms of this Paragraph. The parties acknowledge they know of no liens, encumbrances, leases or other indebtedness to which any of the aforementioned vehicles is subject to, except those liens, etc, set forth in this Paragraph. 12. PERSONAL PROPERTY The parties hereto mutually agree that they have divided all furniture, household furnishings, appliances and other household personal property between them in a manner agreeable to both parties as set forth in the attached Exhibits "A" and "B" which detail the items of personal property to be received by each party. 7 $t -r;I^ ,. The parties also mutually agree that each party shall from and after the date of this Agreement be the sole and separate owner of all tangible personal property in his or her possession. 13. RETIREMENT BENEFITS, ASSETS AND PLANS The parties acknowledge that, as a result of their employment prior to and during the marriage, each party has accumulated retirement benefits, including Husband's PSERS Retire- ment Account from his employment with the Commonwealth of Pennsylvania, with an appraised value of$ 135,256.00, Wife's PSERS Retirement Acconnt from her employment with the Commonwealth of Pennsylvania, with an appraised value of$ 48,125.00, Husband's retirement accounts with Lincoln Financial [403(b )], Husband's Roth IRA account with American Funds, Husband's retirement account with Wachovia Bank and Wife's three (3) Horace Mann Annuities. The parties acknowledge that they have exchanged full information about the above- referenced benefits, had them examined and valued by experts, or elected to voluntarily waive such valuation, and have reached agreement upon the distribution of those assets in the future. With regard to such benefits, accounts and assets, the parties agree that Wife shall receive and be entitled to any and all retirement benefits, deferred compensation accounts, 401(k) accounts, individual retirement accounts, or other retirement accounts now, or in the future, in her name or earned by her through her employment Husband also agrees to pay Wife Twenty-Nine Thousand ($ 29,000.00) Dollars from Husband's 403 (b) account with Lincoln Financial. Husband shall cooperate in transferring said payment into a tax-deferred account of Wife's choosing, however, Wife shall pay all costs associated with said transfer, including, but not limited to, legal fees to prepare a Qualified Domestic Relations Order, taxes assessed and penalties imposed should Wife not transfer the entire payment into an account qualifying for favorable tax treatment. Subsequent to the parties' execution ofthis Agreement, Husband agrees 8 ~ -r/ , to execute a Qualified Domestic Relations Stipulation or Order which complies with the parties' agreement within ten (10) days of presentation by Wife's counsel. Except for the aforementioned payment of $ 29,000.00, Husband shall receive and be entitled to all retirement benefits, deferred compensation accounts, Keogh, 401(k) accounts, 403(b) accounts, individual retirement accounts or other retirement assets now, or in the future, in his name or earned by him through his employment. If sufficient funds do not exist in Husband's 403 (b) account with Lincoln Financial at the date of transfer, to pay the full amount of$ 29,000.00, Husband shall pay the unpaid balance through other retirement or personal funds owned by Husband within ten (10) days of the date of transfer. Except as may otherwise be provided herein, each of the parties does specifically waive, release, renounce and forever abandon all of his or her right, title, interest or claim, whatever it may be in the retirement plans separately stated in this paragraph as well as any Pension Plan, Retirement Plan, Profit Sharing Plan, 401(k) Plan, Keogh Plan, Stock Plan, Tax Deferred Savings Plan and/or any other employee benefit plan (collectively referred to as "Employee Benefit Plans") and hereafter said Employee Benefit Plans shall become the sole and separate property of the party named in the Employee Benefit Plans or through whose employment said Employee Benefit Plans are carried. The party receiving the retirement account shall be responsible for any and all outstanding loans associated with the account. 14. REAL PROPERTY-MARITAL RESIDENCE. The parties hereto mutually covenant and agree that the real estate they own jointly, as tenants by the entireties, and being known and numbered as 260 Skyline View Drive, Carlisle, Permsy1vania, (hereinafter referred to as the "marital residence") was acquired during the marriage. 9 ~ -if' " J The parties agree that the ownership of the marital residence shall be transferred into Wife's name alone upon refinancing of the current mortgage. The marital residence is subject to a mortgage with VNB Mortgage Corporation with an outstanding balance of approximately $ 106,000.00 and a line of credit with PSECU, with an outstanding balance of approximately $ 1,000.000. Wife agrees to refinance or remove Husband from any liability for the mortgage with VNB Mortgage Corporation and line of credit with PSECU within four (4) months of the execution of this Agreement. Wife agrees to be solely responsible for the mortgage, line of credit or any other liabilities associated with the residence and agrees to indemnify, protect and save Husband harmless from said debt, late fees, or other costs associated with said debt. Husband does specifically waive, release, renounce and forever abandon whatever right, title and interest he may have in the marital residence which shall become the sole and separate property of Wife. The parties acknowledge that they know of no mortgages, liens, encumbrances or other indebtedness to which the marital residence is subject to, except those mortgages, liens, encumbrances or other indebtedness set forth in this Paragraph. Husband agrees to execute a Deed to effectuate said transfer of ownership to Wife at the time of execution of this Agreement with delivery of said Deed upon refinancing the outstantling mortgage and line of credit by Wife. Husband's attorney shall hold the aforementioned Deed in escrow and shall forward a copy of the executed Deed to Wife's attorney upon execution of this Agreement by Wife. Should Wife fail to refmance the outstanding mortgage and line of credit within four (4) months of execution of this Agreement, Wife agrees to list the marital residence for sale at such price as Wife desires, however, if the marital residence is not sold within nine (9) months of the execution of this Agreement, Wife agrees to lower the asking price for the marital residence to $ 185,000.00. 15. PROPERTY RECEIVED FROM OR INHERITED FROM HUSBAND'S MOTHER. 10 ~~ rI' ~ Husband avers that as a result of the death of Husband's Mother, Husband has inherited or shall receive an ownership interest in various items of personal property, cash and other assets. During the parties' four-way conference Husband estimated that his share of the estate would be approximately $ 110,000.00, however, the estate administration has not yet been completed and exact amounts are not yet known. Wife waives, releases, renounces and forever abandons whatever right, title and interest she may have in Husband's portion the Estate of Sophia Etsweiler, inclut!ing, but not limited to, any claim against or to the decedent's personal property, cash acconnts, real property, life insurance proceeds and any rights or entitlements thereunder. 16. INSURANCE POLICIES The parties acknowledge that, Husband and Wife may have one or more life insurance policies. The parties acknowledge that Husband's policy with Prudential Life Insurance Company had a cash surrender value of approximately $ 4,536.00, as of April 2003, and that Wife's policy with Lutheran Brotherhood had a cash surrender value of approximately $ 3,983.00, as of April 2003. With regard to any such insurance policies, the parties agree that Husband shall receive and be entitled to the value of his insurance policies and Wife shall receive and be entitled to the value of her insurance policies. Except as may otherwise be provided herein, each of the parties does specifically waive, release, renounce and forever abandon all of his or her right, title, interest or claim, whatever it may be in the insurance policies separately stated in this paragraph and hereafter said insurance policies shall become the sole and separate property of the party named as the owner therein. The party receiving the insurance policy shall be responsible for any and all outstanding loans associated with said policy. 11 ~t V .' 17. CUSTODY AND FINANCIAL ARRANGEMENTS CONCERNING THE PARTIES' MINOR CHILDREN A. CUSTODY: The parties anticipate separating in the near future. Accordingly, the parties hereto mutually agree that upon separation they shall have shared legal custody of their minor children and shall agree to share in some manner the physical custody of their minor children with the exact days/times of exchange to be worked out between the parties. Neither party shall schedule activities for the minor children, which will impact the other parties' time with the minor children, without first conferring with the other parent. Both parties agree to keep each other informed if they are to be away from their residence for more than 24 hours and provide a telephone number or other method of contacting the party. Both parties agree that the minor children shall have reasonable telephone access to both parents. B. TAX FILINGS AND RELATED ISSUES: The parties agree that each of the parties shall be entitled to claim the dependency exemption for one of the parties' children on all future tax returns. At such time that only one of the parties' children can be claimed as a dependent the parties agree to alternate claiming that dependent child with Wife receiving the first such year. The parties agrees to execute and deliver IRS Forms 8332 at tile execution of this Agreement and when necessary to carry out the parties' Agreement as stated herein. Husband's counsel shall prepare said IRS Forms 8332, to effectuate this exemption to be claimed by the parties. 18. MISCELLANEOUS PROPERTY 12 ~ 11' All marital property not otherwise mentioned in this Agreement shall be hereafter owned by the party to whom the property is titled; and if untitled, by the party in possession. This Agreement shall constitute a sufficient Bill Of Sale to evidence the transfer of any and all rights in such property from each party to the other. 19. DEBTS A. Husband acknowledges that he has individual credit cards in his name alone and that he pays off the outstanding balances of all said cards as they become due. B. Wife acknowledges that she has individual credit cards in her name alone and that she pays off the outstanding balances of all said cards as they become due. Each party agrees to be solely responsible and liable for hislher debts in their individual names, as set forth above. Each party agrees to pay their debts as the same become(s) due, and to indemnify and hold the other party and his or her property harmless for any and all such debts, obligations and liabilities. C. The parties acknowledge that have one joint debt, namely a credit card through PSECU, other than the debts associated with the marital residence. The parties agree to continue to pay-off the full balance of said credit card on a monthly basis, to utilize said credit card only for family expenditures and to close said credit card upon Husband's relocation from the marital residence. D. A liability not disclosed in this Agreement will be the sole responsibility of the party who has incurred or may hereafter incur it, and each agrees to pay it as the same become(s) due, and to indemnify and hold the other party and his or her property harmless for any and all such debts, obligations and liabilities. From the date of the execution of this Agreement, except as indicated in paragraph 19 C. of this Agreement, each party shall use only those credit cards and accounts for which that party is individually liable and the parties agree to not use any credit card 13 ~e or other debt instrument for which the parties have joint liability or any potential liability. The parties agree to cooperate in closing any remaining accounts which provide for joint liability. 20. BANKRUPTCY It is hereby understood and agreed by and between the parties that their obligations pursuant to this agreement shall not be affected by any bankruptcy proceeding and shall not be deemed to constitute or be a dischargeable debt of bankruptcy. Both parties warrant that he/she has not heretofore instituted any proceedings pursuant to the bankruptcy laws nor are there any such proceedings pending with respect to himlher which have been initiated by others. Should either party file for bankruptcy and attempt to discharge any debts for which that party has been encumbered or agreed to pay, under this agreement, the decision as to whether or not said debts may be discharged shall rest with the Dauphin County Court of Common Pleas and the parties hereto acknowledge that said Court shall have exclusive jurisdiction to render this decision. 21. LEGAL FEES, COSTS AND EXPENSES Husband acknowledges that he has been represented in this matter by Gary L. Rothschild, Esquire and Wife acknowledges that she has been represented in this matter by Carol J. Lindsay, Esquire. The parties acknowledge and agree that each shall be responsible for the payment of the fees owed to their respective attorney. Except as set forth in paragraph number 13 of this Agreement, Husband and Wife do hereby waive, release and give up any rights which they may have against the other for payment of counsel fees. The parties acknowledge and agree that each shall be responsible for the payment of any and all costs and expenses incurred by that party. Except as set forth in paragraph number 13 of this Agreement, Husband and Wife do hereby waive, release and give up any rights which they may have against the other for payment of costs and expenses. 22. OTHER WRITINGS 14 ~f1e 1I .- Each of the parties hereto agree to execute any and all documents, deeds, bills of sale or other writings necessary to carry out the intent and language of this Agreement. 23. DISCLOSURE AND WANER OF PROCEDURAL RIGHTS Each party understands that he or she had the right to obtain from the other party a complete inventory or list of all of the property that either or both parties owned at the time of separation and at the time and/or owned at this time and that each party had the right to have all such property valued by means of appraisals or otherwise. Both parties understand that they have the right to have a court hold hearings and make decisions on the matters covered by this Agreement. Both parties understand that a court decision concerning the parties' respective rights and obligations might be different from the provisions of this Agreement. Each party hereby acknowledges that this Agreement is fair and equitable, that it adequately provides for his or her needs and is in his or her best interests, and that the Agreement is not the result of any fraud, duress, or undue influence exercised by either party upon the other or by any other person or persons upon either party. Both parties hereby waive the following procedural rights: A. The right to obtain an inventory and appraisement of all marital and non- marital property as defined by the Pennsylvania Divorce Code. B. The right to obtain an income and expense statement of the other party as provided by the Pennsylvania Divorce Code. C. The right to have property identified and appraised. D. The right to discovery as provided by the Pennsylvania Rules of Civil Procedure. E. The right to have the court determine which property is marital and which is non-marital, and equitably divide and distribute between the parties that 15 ~t l' ..~ ,~ property which the court determines to be marital, and to set aside to a party that property which the court determines to be that parties' non-marital property. F. The right to have the court decide any other rights, remedies, privileges, or obligations covered by this Agreement and/or arising out of the marital relationship, including but not limited to possible claims for divorce, child support, sponsal support, alimony, alimony pendente lite (temporary alimony), equitable distribution, custody, visitation, counsel fees, costs and expenses. 24. FURTHER DEBT Wife agrees that she shall not contract or incur any debt or liability for which Husband or his property or estate might be responsible and shall indenmify and save Husband harmless from any and all claims or demands made against Husband by reason of debts or obligations incurred by Wife. 25. FURTHER DEBT Husband agrees that he shall not contract or incur any debt or liability for which Wife or her property or estate might be responsible and shall indenmify and save Wife harmless from any and all claims or demands made against Wife by reason of debts or obligations incurred by Husband. 26. MUTUAL RELEASE Except as otherwise provided herein and so long as this Agreement is not modified or canceled by subsequent Agreement, the parties hereby release and discharge absolutely and forever each other from any and all rights, claims and demands, past, present and future, including, but not limited to the following: spousal support, alimony, alimony pendente lite, division of property, claims or rights of dower and right to live in the marital home, right to act as 16 ~t 11 .;. " .' executor or administrator of the other's estate, rights as devisee or legatee in the Last Will and Testament of the other, any claim or right as beneficiary in any life insurance policy of the other and any claim or right in the distributive share or intestate share of the other parties' estate. 27. TAX ON PROPERTY DNISION. The parties hereby agree and express their intent that any transfers of property pursuant to this Agreement shall be within the scope and applicability of the Deficit reduction Act of 1984 or other similar tax acts (hereinafter the "Act"), specifically, the provisions of the said Act pertaining to transfers of property between spouses or former spouses. The parties agree to sign and caused to be filed any elections or other documents required by the Internal Revenue Service to render the Act applicable to the transfers set forth in tl1is Agreement, without recognition of gain on such transfers and subject to the carry-over basis provision of said Act. As to transfers to which the Act may not or does not apply, Husband shall be solely responsible for any and all taxes that may be assessed or become due from Husband, and Wife shall be solely responsible for any and all taxes that may be assessed or become due from Wife as a result of or arising from this Agreement. As to transfers for which the parties are or may be jointly liable, the parties hereto agree to contribute equally to such taxes, penalties and/or interest. 28. TAX RETURNS The parties have heretofore filed joint tax returns, including federal, state and local returns. Both parties agree that in the event any deficiency in federal, state or local income tax is proposed, or any assessment of any such tax is made against either party, each agrees to indemnify and hold harmless the other from and against any loss or liability for any such tax deficiency or assessment therewith and the parties hereto agree to contribute pro-rata, based upon their respective earnings for the year in issue, to such taxes, penalties and/or interest. 29. FINAL EOUIT ABLE DISTRIBUTION OF PROPERTY 17 $7.i 11' The parties agree that the division of all property set forth in this Agreement is equitable and both parties relinquish the right to divide said property in any manner not consistent with the terms set forth herein. It is further the intent, understanding and agreement of the parties that this Agreement is a full, final, complete and equitable property division. 30. ENTIRE AGREEMENT This Agreement constitutes the entire understanding between the parties, and there are no covenants, conditions, representations or agreements, oral or written, of any nature whatsoever, other than those contained herein. 31. LEGALLY BINDING It is the intent of the parties hereto to be legally bound hereby and this Agreement shall bind the parties hereto and their respective heirs, executors, administrators and assigns. 32. FULL DISCLOSURE Each party asserts that she or he has made a full and complete disclosure of all the real, personal and all other property or assets of whatsoever nature and wheresoever located belonging in any way to each of them, of all debts and encumbrances incurred in any manner whatsoever by each of them, of all sources and amounts of income received or receivable by each of them, and of every other fact relating in any way to the subject matter of this Agreement. These disclosures are part of the consideration made by each party for entering into this Agreement. 33. BREACH AND COSTS TO ENFORCE In the event that either party defaults in the performance of any duties or obligations required by the terms of this Agreement and either extra-judicial or judicial proceedings are commenced to enforce such duty or obligation, then the party found to be in default shall be liable for all expenses of curing the default, including, but not limited to reasonable attorneys' fees, court costs and expenses. 18 ~t , ' 34, AGREEMENT ENTERED INTO VOLUNTARILY AND AGREEMENT CLEARLY UNDERSTOOD Each party to this Agreement acknowledges and declares that he or she respectively: A. Has carefully read each paragraph and each provision of this Agreement; B. Has given careful and mature thought to the making of this Agreement; C. Is fully and completely informed as to the facts relating to the subject matter of this Agreement, including the parties' assets and liabilities; D. Has reviewed this Agreement with hislher counsel and received guidance as to hislher rights and obligations under this Agreement; E. Enters into this Agreement voluntarily after receiving the advice of independent counsel; and F. Fully and completely understands each provision of this Agreement, both as to the subject matter and legal effect. 35. AMENDMENT OR MODIFICATION This Agreement may only be amended or modified by a written instrument signed by both parties. 36. SEVERABILITY If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken from this Agreement and in all other respects this Agreement shall be valid and continue in full force, effect and operation. Likewise, the failure of any party to meet his or her obligations or duties under this Agreement or anyone or more of the paragraphs of this Agreement, with the exception of the satisfaction of any conditions precedent, shall in no way void or alter the remaining obligations or duties of the parties. 19 ~ ~.. 37. LAW APPLICABLE This Agreement shall be governed, construed and enforced under the statutes and case law of the Commonwealth of Pennsylvania. 38. HEADINGS NOT PART OF AGREEMENT Any headings preceding the text of the paragraphs and subparagraphs herein are inserted solely for convenience of reference and shall not constitute a part of this Agreement nor shall they affect its meaning, construction or effect. BY SIGNING THIS AGREEMENT, EACH PARTY ACKNOWLEDGES HAVING READ AND UNDERSTOOD THE ENTIRE AGREEMENT, AND EACH PARTY ACKNOWLEDGES THAT THE PROVISIONS OF THIS AGREEMENT SHALL BE AS BINDING UPON THE PARTIES AS IF THEY WERE ORDERED BY THE COURT AFTER A FULL HEARING. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and dr; ~ r(. .Ek,,"rt!-Jl~ d~ER(~w;r~ WILLIAM A. ETSWEILER ("Husband") 20 ~i ETSWEILER MATRIMONIAL SETILEMENT AGREEMENT ITEMS OF PERSONAL PROPERTY TO BE RECEIVED BY WIFE Red bedroom: Futon Dresser Book case Ulrich's Room: All furniture Rainer's Room: All furniture except cherry dresser Bonus Room: No furniture except teak chair All dining room furniture: Teak table Teak chairs Jelly cupboard Water lily painting Living Room: Book cases Piano Love seat Family Room: Entertainment center Including TV, VHS, and DVD player Couch Lovely green chair Basement Washer Dryer J four-drawer file cabinet EXHIBIT "A" 21 ~t 'aJ; ETSWEILER MATRIMONIAL SETTLEMENT AGREEMENT ITEMS OF PERSONAL PROPERTY TO BE RECEIVED BY HUSBAND Bonus Room: All furniture, including: Cherry dresser File cabinet Bed Rolltop desk Walnut & Burlap chair Walnut book case Cherry night stand Red bedroom: McIntosh Computer and computer table Cherry desk Ulrich's room: No furniture Rainer's room: Cherry dresser Dining room: Green oriental carpel Nick Ruggieri prints Living room: Oval small table Victorian chair Wing Chair Family room: Sailboat painting Kitchen: Dishes and kitchen supplies to be decided by h&w Basement: One four-drawer file cabinet Two-drawer file cabinet All tools, tool boxes, and work benches Jet !O" table saw Parents' furniture: clock, hutch, cherry table, "Uncle Bill's Table" Cannondale Tandem bicycle GarageIPorch: Cubby hole set Cooler and garden tools to be decided by h&w .'.. 1'- COMMONWEALTH OF PENNSYLVANIA ltl t1J Ij /J71W... 0 S8 COUNTY OF On this, the J. ? day of tlf.;t'I..,J 2004, before me, a Notary Public in and for the State and County aforesaid, the undersigned officer, personally appeared DIANE M, ETSWEILER, known to me (or satisfactorily proven) to be the person described in the foregoing instrument, and acknowledged that she executed the sarne for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. ~ ~ ~EAL) Notary Publj~' NOTARIAL SeAL "7 KANOtLLENKER,NOTARVPUBUC CAAUSLE BORO, CUMBERLAND COUNTY MYCOMMlSSION EXPIRES FEBRUARY 20. 2005 COMMONWEALTH OF PENNSYLVANIA S8 COUNTY OF On this, the ~ day of ~ /- 20ci, before me, a Notary Public in and for the State and County aforesaid, the undersigned officer, personally appeared WILLIAM A. ETSWEILER, 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. NOTARIAlSCAI. KANDI L LENKER, NOTARVPU8UC CARUSLE BORO, CUMBERlANOCOUNTY MYCOMMISSlON EXPIRES FeBRUARY 20, 2005 ,.,-,._-'-"- 23 WILLIAM A. ETSWEILER, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO,2003-1703 CIVIL TERM CNIL ACTION - LAW DIANE M. ETSWEILER, Defendant IN DIVORCE PRAECIPE TO TRANSMIT RECORD TO THE PROTHONOTARY: Please transmit the record, together with the following information, to the Court for entry of a Divorce Decree: 1. Ground for Divorce: 3301(c) of the Divorce Code. 2. Date and manner of service ofthe complaint: Regular mail on May 1, 2003, Acceptance of service filed May 8, 2003. 3. Date of execution of the affidavit of consent required by Section 3301(c) of the Divorce Code: By Plaintiff 8/2412004 ; By Defendant 8/28/2004. 4. Related claims pending: None, 5, Date Plaintiffs Waiver of Notice in S3301(c) Divorce was filed with the Prothonotary: 9/0912004; Date Defendant's Waiver of Nbtice in S3301(c) Divorce was filed with the Prothonotary: 9/02/2004, Dated: /7t'fIo'f ~.~ 2215 Forest Hills Drive, Suite 35 Harrisburg, PA 17112 (717) 540-3510 Attorney for Plaintiff . - i ,..'f. :+::f.;f;;+: :Ii . . . . . :+':'::I::'+:'" +.+. :f.:f.:f.:f.:f.:f.:f.:f.:f.'t:"'~+-+'+'+'+++'+++:+:+:f.+'+.+.+.+ :++.++:f.+ ++."'+.+.+++~ . . . . . . . . . .. . IN THE COURT OF COMMON PLEAS OFCUMBERLANDCOUNTY , . PENNA. STATE OF . . . . . . WILLIAM A. R'T'SWRTT.RR, . . . . Plaintiff No. 2003 - 1703 VERSUS . . DIANE M. ETSWEILER. . . Defendant . . DECREE IN DIVORCE . . . . . . . . . . AND NOW, o;a., qO .:1lf:)f} -It . ,Joo'l. IT IS ORDERED AND . . . . . WILLIAM A. ETSWEILER , PLAI NTI FF, DECREED THAT . . . . . . . . . . . . . DIANE M. ETSWEILER , DEFENDANT, AND 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, Further, the Matrimonial Settlement Agreement, executed by the parties and dated AuguRr /h, 7n04, attached hereto, i~ incorporated herein for purposes of enforcement but shall not be merged into said decree. The par e ordered to comply with lh~ L"'LIO.. c>[ ..",i<1 AYL.,.,ment . . . . . . . . B ,,,: ~;_ ~ i -~ ..... ~~ ....- ~". " ,~ . oF '.' . - .;,.. . . . . . . . . . . . . . . . . . ~'+; "Ii +. ~':'..' ,- .' '" ."-" d' ... - . ATT"T. ~ ~ /,PROT"O'OTART . . ...."... ..-,--.. / . .' ~ "..... "'........",... ,. ,~ ........... --,"' ... "*'.;: L .~ \:,"'~ ..............., -. . ;+:;+: "I':+:of. Of.:+:of. 'f' +. +':f. +.;+: +. ++ 00000009.0.0.0.0.00000 . :+: '+ 'f'++ 'f. 'I' ;;: +. Of. Of:f.;f.:+ '+' 'to' + . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J, . . . . . . . . . . . . . . . . .r;;~ ~ ~~~Jh h(?le,~1 ?'r~f:7 P? ~ 4; 'r? ;,,7/r,V/ .. ~ FEB 0 9 200~ WILLIAM A. ETSWEILER, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO, 2003 -17113 CIVIL TERM : IN DIVORCE DIANE M. ETSWEILER, Defendant QUALIFIED DOMESTIC RELA TrONS ORDER The marriage of Diane M. Etsweiler and William A. Etsweiler has been dissolved by court decree of October 20, 2004. In connection with the marital distribution between the parties the Participant assigns a portion of his tax deferred annuity benefits to the Alternate Payee as set out below. The plan subject to the Qualified Domestic Relations Order ("QDRO") is as follows: PLAN NAME: 403(b) Tax Deferred Annuity Plan which is funded by The Lincoln National Life Insurance Company, Contract No. 97-9121922. PARTICIPANT: William A. Etsweiler Address: 260 Skyline View Drive, Carlisle, Pennsylvania 17013 Date of Birth: June 26, 1953 Social Security Number: 196-40-2636 ALTERNATE PAYEE: Diane M. Etsweiler Address: 260 Skyline View Drive Carlisle, Pennsylvania 17013 Date of Birth: December 12, 1953 Social Security Number: 193-36-4080 TheParticipantwasemployedby (!f:,v'-;-.?.A L D4J{l"u" .k~D' 1>~(M'r-;- The Participant assigns the Altemate Payee $29,000.00 as of August 26, 2004 plus interest from that date to the date of transfer, which shall be paid in the form of a lump sum distribution roll-over to the Alternate Payee's own Qualified Plan at Horace Mann Educated Financial Solutions, Contract Number 0506929790. This assignment of benefits does not require the Plan to provide any type or form of benefit, or any option, not otherwise provided or available under the Plan. This assignment of benefits does not require the Plan to provide increased benefits nor does it require the payment of benefits to an Alternate Payee which are required to be paid to another Alternate Payee under another court order previously determined to be a Qualified Domestic Relations Order. The court retains jurisdiction to amend this QDRO for the purpose of establishing or maintaining its qualification as a QDRO under the Retirement Equity Act. The Participant and Alternate Payee shall each be :solely responsible for any income taxes and penalties arising out of any distributions, if eligible, from their respective annutties. Dated this ~ L/~ William A. Etsweiler Parfticipant 27::: day of d--.~( s-- ,200_, j),',etoU 1"'1, .E-6t/e.Je- Diane M, Etsvveiler Alternate PaYI~e ).-It/-t1~ J 2 ~,~ \-' \- \'~f '" ~ ')-- ~ ~' ~ y. ~,' j'~ ,.., \ "r'\ ~:i ,.-<l,,\ "' 1 ,:' ~'. \ -~.-" ~ "\ ::c:,... \ .. .- ,.