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Home My WebLink About01-2452 FX :v."':Ii,., ; "' > ,~ " , . . .. .. ',-..',; " '''"'''~ '~';';';-"'~',,:.,,' ,:;~ ~,,' ""~-"J,...;"",-,,ti, ,,; " . :Ii ~ :Ii:li ,.,~ ~ ,.,~ ~ :Ii . . . . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY . . . PENNA. STATE OF . . . . . RANDALL S. GRASSMYER. . Plaintiff No. 01-2452 CIVIL TERM . VERSUS . . . . . . . ELIZABETH Z. GRASSMYER. Defendant . . DECREE IN " DIVORCE ~bc.v'L . I. , IT IS ORDERED AND . it (( ~~~ . 2001 . . . . . . AND NOW, RANDALL S. GRASSMYER , PLAINTIFF, DECREED THAT AND ELIZARF.TH 7.. GRASSMYF.R , 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; . . . IT IS FURTHER ORDERED that the parties' Marital Settlment Agreement date the fourth day of August, 2000, shall be incorporated into, but not merged with, this Decree in Divorce. . . . . . . . . . J. . . . PROTHONOTARY . . . . . ,.,,., :Ii:li ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~j Ii , ^ ~ > n'"'' ,,"'~", -. ., , " ~. ~L ~. "-" - , , ~'- .~< "- ~- '~.-,,"~ '~ -" - _~"~~~'.~o+_.. ,~ ~... '"'''"'~~'''''''~Iil /t/3C>1 &/ ~ ...u~~ 4 ~ /0-3 CJ/ ~, ~ t: ~< .' , ."I,<~~~~m~!~~~m1''''1i\WOO'-I;m;;~~: ~J " ~ "-'- -", -"l',"~-" CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYL VANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: RANDALL S. GRASSMYER V. ELIZABETH Z. GRASSMYER NO. 01-2452 CIVIL TERM 1114 MDA 2004 The documents comprising the record have been numbered from No. 1 to 83, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 9/3/04 . CurtIS R. Lo, onot JANE H SPARLING, Dpt . An additional CODy of this certificate is enclosed. Please sien and date CODy. thereby acknowledl!ine receiDt of this record. Date Signature & Title v~ ,- ~ "-~'" ,,<- ,,:, ,. "~, ' ,to, , Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CUMBERLAND J:J:J:4 1"JLJA .lUU4 01-3452 CIVIL COMPLETE in the Commonwealth of Pennsylvania to No. Term. 19 is contained the following: COPY OF DOCKET ENTRY RANDALL S. GRASSMYER v. ELIZABETH Z. GRASSMYER ~.\, SEE ATTACHED CERTIFIED DOCKET ENTRIES. -I PYS510 ,--" '.';' ~i'" ' "';'_0' ,,' '~ " ~ Cumberland County Prothonotary's Office Civil Case Print Page 1 2001-02452 GRASSMYER RANDALL S (vs) GRASSMYER ELIZABETH Z Reference No. . : Case Type.....: COMPLAINT - DIVORCE Judgment...... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc.: GRANTED ------------ Case Comments ------------- Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 4/26/2001 2:48 0/00/0000 10/01/2001 1114 MbA2004 ******************************************************************************** General Index Attorney Info GRASSMYER RANDALL S PLAINTIFF PETRIE CHARLES E 1003 NANCROC DRIVE APARTMENT 13 MECHANICSBURG PA 17013 GRASSMYER ELIZABETH Z DEFENDANT 98 ST JOHN'S ROAD CAMP HILL PA 17011 ******************************************************************************** * Date Entries * ******************************************************************************** PAGE 00. 1 - 3 4/26/2001 4 4/26/2001 5 8/10/2001 '6 8/10/2001 7 9/10/2001 8 9/10/2001 9 9/10/2001 10 9/10/2001 11 9/10/2001, 12-23 9/10/2001 24 - 25 9/10/2001 25A 10/01/2001 26 - 29 9/05/2003 30 - 43 12/16/2003 44 12/18/2003 45 - 57 2/04/2004 2/06/2004 58 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - COMPLAINT - DIVORCE -------------------------------------------------------------,------ AFFIDAVIT OF NON MILITARY SERVICE ------------------------------------------------------------------- AFFIDAVIT OF CONSENT - PLAINTIFF ---------------~--------------------------------------------------- ~~:~~~_~~_~~~:~~_~~_:~~~~:~~_~~_~~9~~~~_~~~~:_~~c~_~:~_~~~~~~:~~~~ AFFIDAVIT OF SERVICE _________________________________________________dL________________ AFFIDAVIT OF CONSENT - PLAINTIFF ------------------------------------------------------------------- WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-PLFF ------------------------------------------------------------------- AFFIDAVIT OF CONSENT - DEFENDANT ------------------------------------------------------------------- WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-DEFT ------------------------------------------------------------------- PROPERTY SETTLEMENT AGREEMENT ------------------------------------------------------------------- PRAECIPE TO TRANSMIT RECORD DIVORCE DECREE ENTERED BY GEORGE E HOFFER P J NOTICE MAILED ------------------------------------------------------------------- DOMESTIC RELATIONS ORDER RELATING TO THE ASSIGNMENT OF RANDALL S GRASSMYER'S ACCOUNT BALANCE UNDER THE SYSCO CORPORATION EMPLOYEES 401 K PLAN - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- PETITION FOR ENFORCEMENT OF PROPERTY & SEPARATION AGREEMENT - BY M LUCILE LONGO ESQ ------------------------------------------------------------------- ORDER 12/17/03 UPON CONSIDERATION OF THE WITHIN PETITION A RULE IS ISSUED UPON RESPONDENT-RANDALL'S-GRASSMYERTO SHOW CAUSE WHY THE PRAYER IN THE PETITION SHOULD NOT BE GRANTED IN RE: HEARING SCHEDULED THE 11TH DAY OF FEBRUARY 2004 AT 9:30 AM IN COURTROOM #3 OF THE CUMERLAND COUNTY COURTHOUSE GEORGE E HOFFER P JUDGE COPIES MAILED 12/18/03 . ------------------------------------------------------------------- ANSWER AND COUNTERCLAIM TO PETITION FOR ENFORCEMENT OF PROPERTY AND SEPARATION AGREEMENT - BY MARIA P COGNETTI ESQ FOR DEFT ------------------------------------------------------------------- ORDER - DATED 2/6/04 - IN RE FACT THAT COUNSEL FOR DEFT IS UNAVIALABLE FOR HEARING ON 2/11/04 DUE TO MEDICAL ISSUES IT IS HEREBY ORDERED AND D CREED THAT THE HEARING SET FOR THAT DATE IS CONTINUED TO THE 4/5 04 AT 1:30 PM IN CR 3 CUMBERLAND COUNTY C01JR'rH01JB'E:-CJffiLI~ A - BY THE COURT-GEOIrGB-I,rHOFFER PJ COPIES MAILED '^- ,'.-, "" '"" "_,,,c_,/ "'},,,. " PYS510 Cumberland County Prothonotary's Office Civil Case Print Page 2 PAGE roo 59 Filed. . . . . . . . : 4/26/2001 Time.. . . . . .. . : 2 : 48 Executi9n Date 0/00/0000 Jury Trlal. . . . Disposed Date. 10/01/2001 Higher Crt 1.: 1114 MDA2004 Higher Crt 2.: 2/06/2004 ORDER OF COURT - DATED 2/6/04 - IN RE ANSWER AND COUNTERCLAIM RESPONDENT'S COUNTERCLAIM SHALL BE HEARD AT THE SAME TIME AS PETITIONER'S ORIGINAL CLAIM WHICH IS CURRENTLY SCHEDULED FOR HEARING ON 4/5/04 AT 1:30 PM IN CR 3 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- ANSWER TO COUNTERCLAIM- BY M LUCILE LONGO ESQ FOR PETITIONER ------------------------------------------------------------------- ORDER OF COURT - DATED 4/5/04 - IN RE PETITION FOR ENFORCEMENT OF PROPERTY & MARITAL ',SETTLEMENT AGREMENT - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED 4/6/04 ------------------------------------------------------------------- 6/30/2004 ORDER OF COURT - DATED 6/30104 - IN RE PETITION FOR ENFORCEMENT OF PROPERTY AND SEPAR.I\'TION AGREEMENT - IS GRANTED - IT IS ORDERED TO PAY ALL AMOUNTS OWED AS STIPULATED IN SAID AGREEMENT HOWEVER WE FIND IN FAVOR OF HUSBAND'S CLAIM FOR RESTITUTION IN THE AMOUNT OF $8 959.47 ON PAYME~S,MADE IN EXCESS OF THE STIPULATED MORTGAGE PAYMENT IN SAID AGREEMENT WE ALSO FIND IN FAVOR OF HUSBAND'S CLAIM UNDER SAID AGREEME~TFOR SUM OF $2000.00 CREDIT CARD DEBT - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- NOTICE OF APPEAL TO SUPERIOR COURT - BY LUCILE LONGO ESQ FOR PLFF ------------------------------------------------------------------- SUPERIOR COURT OF pA NOTICE OF APPEAL DOCKETING TO # 1114 MDA 2004 ------------------------------------------------------------------- CASE TRANSFERRED TO SUPERIOR COURT OF PA -------------------------------------------------~~---------------- SERVICE OF THE LIST OF RECORD DOCUMENTS TO ALL COUNSEL/PARTIES ' - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - DEFENDANT'S EXHIBIT ******************************************************************************** * Escrow Information * * Fees & Debits Bea Bal Pvmts/Adl End Bal * ******************************************************************************** 2001-02452 GRASSMYER RANDALL S (vs) GRASSMYER ELIZABETH Z Reference No. . : Case Type... . .: COMPLAINT - DIVORCE Judgment...... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc.: GRANTED ------------ Case Comments ------------- 60-64 65 - 66 3/26/2004 4/06/2004 67 - 76 77-80 81 - 82 7/15/2004 7/20/2004 9/03/2004 9/03/2004 83 DIVORCE TAX ON CMPLT SETTLEMENT MASTER'S FEE DIV PA SURCHG JCP FEE APPEAL 35.00 .50 5.00 125.00 10.00 5.00 30.00 35.00 .50 5.00 125.00 10.00 5.00 30.00 .00 .00 .00 .00 .00 .00 .00 ------------------------ ------------ 210.50 210.50 .00 ******************************,************************************************** * End of Case Information ' * ******************************************************************************** TRUE OOPV FROM ReCORD 111 T~.wbereol. I hem umo set my IlaOO J;ld I _ of I at C rllsle, ea. _ ,/ 1'111, ~ A ..... :.1 I' - ',' '''--' ,j, ". , '~' " ~-,,,.,' , 0-"" ""'-" _h,-" , ,,-,,<--1..-, .. Commonwealth of Pennsylvania County of Cumberland } SS: I, Curtis R. Long , Prothonotary of the Court of Common Pleas in and for said County. do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therrin stated,..,wherein ~anda L s. urassmyer Plaintiff, and EL~zabeth Z. Grassmyer Defendant _, as the same remains of record before the said Court at No. 01-2452 of Civil Term. A.D. 19_. In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 3rd day of Se tember A. 0..2904..-. ",-- Prothonotary I, r:"'r>r~e 1< !-Io-F-Fer President Judge of the 1\H ntt> Judicial District. comp,?sed of the County of Cumberland. do certify that Curt~s R. Long , by whom the annexed record,.''i:ertificate and attestation were made and given. and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas.Qf said Countybwas. at the time of so doing, and now is Prothonotary in and for said County of CUMBERLAN in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature e e d that the said record. certificate and attestation are in due form of law and made by " , esident Judge Commonwealth of Pennsylvania County of Cumberland } ss: I Curtis R. Long Ph' f h C f C PI' . . rot onotary 0 t e ourt 0 ommon eas III and for the said County, do certify that the Honorable George E. Hoffer, P. J . by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and ~till is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessio,ns ofthePeaC,e in.and for said County,dulY Commissioned and ql!alified; to all whose acts as such full faith and credit are and ought to be given. as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF. I have hereunto set my hand and affixed the seal of said Court this 3rd day f Se t ber A.D. il.QQ4 . Prothonotary " II ,~ ' H .. ~ ~ "~ ~;2) , ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ELIZABETH Z. GRASSMYER v. NO. 01-02452 Civil Term In Divorce RANDALL S. GRASSMYER ANSWER TO COUNTERCLAIM 7. No answer required. 8. Admitted. 9. Denied. At no time when the parties entered into their Property and Separation Agreement was it their intention that Husband's contribution towards the mortgage represented any portion of his child support obligation. The Agreement is clear. Respondent's attempts to introduce evidence regarding the parties intentions is a clear violation of the Parole Evidence Rule. 10. Admitted. 11. Denied. Paragraph 11 is a conclusion of law to which no response is required. In the event the Court considers any response to be necessary Petitioner continues to maintain that the Agreement is clear and any testimony regarding the parties intentions would be a violation of the Parole Evidence Rule. 12. Denied. The Agreement does not specify what percentage of assets each party received. It is not up to the Court to rewrite an Agreement entered into by the parties. 13. No answer required. The Agreement speaks for itself. 14. Denied. The Agreement speaks for itself. 15. Denied. Any payments made by Respondent were made by him voluntarily. He took the mortgage statements and made the payments directly. This was his specific and unilateraL Cl,-,Hon. ~ - 1 - ~ 0., "'"'-, . ,'" ," ~' ," '~~, "", .~ ~ -'& ~,..,' ~- -'-;:,j Petitioner did not agree to any modification of the Property and Separation Agreement. Any such modification would have had to have been in writing. Respondent can not now claim that he should be entitled to credits for something that he did voluntarily without the agreement of Petitioner and he cannot unilaterally modify the Property and Separation Agreement. 16. Denied. Respondent is responsible for the monthly payment of $500.00 per month called for in the Agreement. '/J 17. Denied. Respondent made no such overpayments and must bE( 'held to the obligations set forth in the Property and Separation Agreement. 18. Admitted. 19. Admitted. 20. Denied. Petitioner made payments to Respondent. At some point during the repayment process Respondent advised Petitioner that the debt was paid in full or in the alternative had been forgiven by Respondent. 21. Denied. 22. Denied. Petitioner at all times complied with the Agreement. 23. Paragraph 23 is a conclusion of law to which no response is required. 24. Paragraph 24 requires no response since it is a mere recitation of a statute. 25. No answer required. 26. Denied. Petitioner has no obligations with respect to the Agreement. Her payments have been forgiven or paid. 27. Paragraph 27 is a conclusion of law to which no response is required. 28. Denied. 29. Denied. Petitioner has made all payments required of her. 30. 31. fully set Respondent is Respondent is forth above. not entitled to any credits. not entitled to any credits as is more - 2 - ,- '="~~ ".~ , ,"'-, ' ' JC^ ~,' '- ,- -- ,-,"" " , ,~ -, --'" ","""'- .~,' ~ ,'" ,'~'-, ''l':t'! 32. Respondent is not entitled to any credits. 33. Respondent is not entitled to suspension of any payments since he is delinquent on the payments due and owing. 34. Respondent is delinquent in payment and should be held in contempt for failure to comply with the terms of the Property and Separation Agreement. 35. Respondent is delinquent in payment and should be held in contempt for failure to comply with the terms of the Property and Separation Agreement. 36. The Agreement speaks for itself. 37. No answer required. 38. Petitioner is without sufficient information or knowledge to form a belief as to the truth of this averment and proof thereof is demanded. 39. Denied. Proof demanded. WHEREFORE, petitioner requests this Honorable Court dismiss the Counterclaim filed on behalf of Respondent. LO ,LO & , LLP 15 N. Lime Stree Lancaster, PA 17602 (717) 397-5127 Attorney ID #67907 Attorney for petitioner Date: !3 J;)5 /()4 I J - 3 - ~-. , ,,-<<'c' ~ ',,. .~ ""'"~."'''''''''-"',~ ~, "-"'Y~ VERIFICATION I verify that the statements in the foregoing Answer to Counterclaim are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities. ~6,j-j,;&r i1t/lM<fVA;jk't/ Eli eth Z. a'ssmyer DATE: J -tJ~-04 - 4 - , ~ ~' ,'" <~,,~- ",,' ,',;:-,',.:?, '.' _<, ,~"" ,; '_.' \.H''-'';;{,-'"...o" C." .. "' '(::~ ~ . . CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Answer to Counterclaim was served by first class mail, postage prepaid, addressed as follows: Maria P. Cognetti, Esquire 210 Grandview Avenue, Suite 102 Camp Hill, PA 17011 RESPECTFULLY SUBMITTED, DATE: .3J~5 J 0'-/ - 5 - i2>,f" " J_< >-,-, '-"",';.. ~mi :f " ~N RANDALL S. GRASSMYER, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2452 CIVIL TERM ELIZABETH L. GRASSMYER, Defendant IN DIVORCE IN RE: PETITION FOR ENFORCEMENT OF PROPERTY & MARITAL SETTLEMENT AGREEMENT ORDER OF COURT AND NOW, April 5, 2004, the parties having appeared in open court tog€ther with their respective counsel, and having submitted to the Court Exhibit A which shows husband's payment to the mortgage company beginning approximately August 1, 2000, through August 1, 2003, which each party is in agreement as to the accuracy of the figures, and it further showing payments from husband to wife of $500.00 from September 1 through November 1, 2003, and no payment thereafter, the Court deems this sufficient to make a determination that no further evidence is necessary to establish the amounts paid. In regard to the counterclaim of the husband for repayment of the sum of $2000.00 on the Master Card with Navy credit, as contained on page 5 of the marital settlement agreement, and the wife having admitted that she has not made any payments as due under that"we find in favor of the husband's claim for such amount as may be due to this time. Thr Court will later reconcile that amount due in the final 0' be made in this case. The Court not having entertr' of testimony from either side on their intent" interpretation of the property and separation ac the Court feels that the agreement is clear and c ~lr:: -' ?;i,~8?.";~;'.:~:;~;(\~~~;iA)jJ, i'c?~~::~l~i;';:~~;,:<3~ii'~,?:"5;;'i\b1;';; ',""'- ">,, J f ~ , . '-~"'- ,-,,-" "-.ij(~i Grassmyer v Grassmyer 01-2452 Civil Term Page 2 be interpreted without the need for parol evidence, the Court will decide as a question of law whether the husband shall get credit for excess payments made during the times in question or whether he will not get such credit. Each counsel, at their suggestion, will be given until close of business on Monday, April 19, 2004, to submit briefs on this particular question. By the Court, Maria P. Cognetti, Esquire 210 Grandview Ave., Suite 102 Camp Hill, Pa. 17011 For Randall Grassmyer M. Lucile Longo, Esquire 15 N. Lime Street Lancaster, Pa. 17602 For Elizabeth Grassmyer :mtf ~ ~, L ", . ,~ '"-, ITEMIZATION OF FEES RELATED TO ENFORCEMENT OF PROPERTY SETTLEMENT AGREEMENT . 12/18/03 Review and respond to email from client 300.00 0.20 60.00 (MPC) 1/9/04 Calculate amount overpaid to Wife from client's bank records; prepare Answer to Petition (KS) 85.00 1.50 127.50 1/13/04 Review Answer and Counterclaim 300.00 0.20 60.00 (MPe) 1/14/04 Redraft Petition (MPC) 300.00 0.20 60.00 3/8/04 Telephone call with client (KS) 85.00 0.20 17.00 " 3/26/04 Review correspondence and Answer 300.00 0.20 60.00 (MPe) 3/29/04 Telephone call with client 300.00 0.20 60.00 (MPe) 3/30/04 Telephone call with attorney; review and respond to email from client 300.00 0.30 90.00 (MPe) 3/31/04 Telephone call with attorney (MPe) 300.00 0.20 lSO.OO 4/1/04 Conference with client (MPe) 300.00 1.00 300.00 4/2/04 Telephone conference with client (MPC) 300.00 0.20 60.00 Prepare and review Memo (MPe) 300.00 2.50 750.00 4/3/04 Finalize Memo (MPe) 300.00 1.00 300.00 4/4/04 Prepare for Hearing (MPC) 300.00 2.00 600.00 TOTAL $ 2,604.50 R.DBER.T A. LONGO M, LUCILE SEAMAN PETEFl 1<... HONAMAN FlETIR.ED April 5, 200" "..' LAW OFFICES .. "- ,~' ,_,,___.;_C ~<,"-, ""~'d HONAMAN, LONGO g SEAMAN, L L P M^NHEIM OFFICE 15 NORTH LIME STREET LANCASTER, PENNSYLVANIA 17602 TEL (717)397-5127 FAX (717) 397-5267 E~MAIL: mlslaw@pptnet.com Elizabeth L. Grassmyer 98 St. John's Road Camp Hill, Penna. 17011 Re: Divorce/P&S Agreement Dec-15-03 Mar-15-0" Mar-30-0" Mar-30-0" Mar-31-0" Mar-31-0" Apr-5-0" Preparation of Petition for Enforcement Preparation of Responsive Pleading/letter Phone with Phillip Miles Review correspondence Phone/attorney Respond to e-mail Phone/attorney Hearing TOTAL 35 SOUTH MAIN STR.EET (717) 665-2262 LANDISVILLE OFFICE 410 MAIN STR.EET 1.50 hrs. $255.00 1. 00 hrs. '175.00 .70 hrs. 122.50 .30 hra. 52.50 .30 hra. 52.50 .30 hrs. 52.50 3.00 hrs. 52S,100 $1,235.00 '"....0I!\:;w", CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (Q SUPPLEMENTAL RECORD To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYL VANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA RAP. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: RANDALL S. GRASSMYER V. ELIZABETH Z. GRASSMYER NO. 01-2452 CIVIL TERM 1114 MDA 2004 The documents comprising the record have been numbered from No. 84 to 116, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 9/21/04 . Curtis R. Long, Prothonotary JANE H SPARLING, Dpty. An additionalcoDv ofthis certificate is enclosed. Please silm and date CODY. thereby acknowledl!inl! receiDt of this record. Date Signature & Title " '< '". ~' --""'I:~' L~",-, .-~Q1-'" Among the Records and Proceedings enrolled in the court of Common Pleas in and for the CUMBERLAND ~~~4 MDA 2004 01-2452 CIVIL in the Commonwealth of Pennsylvania county of to No. Term, 19 is contained the following: COPY OF COMKPLETE DOCKET ENTRY SUP P L E MEN TAL R E COR D RANDALL S. GRASSMYER v. ELIZABETH Z. GRASSMYER SEE ATTACHED CERTIFIED DOCKET ENTRIES. I, , ~~" , ~ ,- .-".-< ~ '''''')', ,; PYS510 Cumberland County Prothonotary's Office ~5304J09212004 Civil Case Print 2001-02452 GRASSMYER RANDALL S (vs) GRASSMYER ELIZABETH Z Page 1 Reference No. . : Case Type.....: COMPLAINT - DIVORCE Judgment. . . . . . . 00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc.: GRANTED ------------ Case Comments ------------- Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 4/26/2001 2:48 0/00/0000 10/01/2001 1114 MDA2004 ******************************************************************************** General Index Attorney Info GRASSMYER RANDALL S 1003 NANCROC DRIVE APARTMENT 13 MECHANICSBURG PA 17013 GRASSMYER ELIZABETH Z 98 ST JOHN'S ROAD CAMP HILL PA 17011 PLAINTIFF LONGO M LUCILE DEFENDANT COGNETTI MARIA P ***************************************************************************,***** * Date, Entries ,* ******************************************************************************** 4/26/2001 4/26/2001 8/10/2001 8/10/2001 9/10/2001 9/10/2001 9/10/2001 9/10/2001 9/10/2001 9/10/2001 9/10/2001 10/01/2001 9/05/2003 12/16/2003 12/18/2003 2/04/2004 2/06/2004 FIRST ENTRY COMPLAINT - DIVORCE ------------------------------------------------------------------- AFFIDAVIT OF NON MILITARY SERVICE AFFIDAVIT OF CONSENT - PLAINTIFF WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-PLFF ------------------------------------------------------------------- AFFIDAVIT OF SERVICE ------------------------------------------------------------------- AFFIDAVIT OF CONSENT - PLAINTIFF ------------~------------------------------------------------------ WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-PLFF ------------~------------------------------------------------------ AFFIDAVIT OF CONSENT - DEFENDANT ------------~------------------------------------------------------ WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-DEFT ------------~------------------------------------------------------ PROPERTY SETTLEMENT AGREEMENT ------------~------------------------------------------------------ PRAECIPE TO TRANSMIT RECORD ------------------------------------------------------------------- DIVORCE DECREE ENTERED BY GEORGE E HOFFER P J NOTICE MAILED ------------------------------------------------------------------- DOMESTIC RELATIONS ORDER RELATING TO THE ASSIGNMENT OF RANDALL S GRASSMYER'S ACCOUNT BALANCE UNDER THE SYSCO CORPORATION EMPLOYEES 401 K PLAN - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED PETITION FOR ENFORCEMENT OF PROPERTY & SEPARATION AGREEMENT - BY M LUCILE LONGO ESQ ------------------------------------------------------------------- ORDER 12/17/03 UPON CONSIDERATION OF THE WITHIN PETITION A RULE IS ISSUED UPON RESPONDENT RANDALL S GRASSMYER TO SHOW CAUSE WHY THE PRAYER IN THE PETITION SHOULD NOT BE GRANTED IN RE: HEARING SCHEDULED THE 11TH DAY OF FEBRUARY 2004 AT 9:30 AM IN COURTROOM #3 OF THE CUMERLAND COUNTY COURTHOUSE GEORGE E HOFFER P JUDGE COPIES MAILED 12/18/03 ------------------------------------------------------------------- ANSWER AND COUNTERCLAIM TO PETITION FOR ENFORCEMENT OF PROPERTY AND SEPARATION AGREEMENT - BY MARIA P COGNETTI ESQ FOR DEFT ------------~------------------------------------------------------ ORDER - DATED 2/6/04 - IN RE FACT THAT COUNSEL FOR DEFT IS UNAVIALABLE fOR HEARING ON 2/11/04 DUE TO MEDICAL ISSUES IT IS HEREBY ORDERED AND DECREED THAT THE HEARING SET FOR THAT DATE IS CONTINUED TO THE 4/5/04 AT 1:30 PM IN CR 3 CUMBERLAND COUNTY , COURTHOUSE CARLISLE PA - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED PYS510 Cumberland County Prothonotary's Office 15304209212004 Civil Case Print 2001-02452 GRASSMYER RANDALL S (vs) GRASSMYER ELIZABETH Z Reference No. . : Filed. . . . . . . . : 4/26/2001 Case Type.....: COMPLAINT - DIVORCE Time.........: 2:48 Judgment...... .00 Execution Date 0/00/0000 Judge Assigned: HOFFER GEORGE E PJ Jury Trial.... Disposed Desc.: GRANTED Disposed Date. 10/01/2001 ------------ Case Comments ------------- Higher Crt 1.: 1114 MDA2004 Higher Crt 2.: 2/06/2004 ORDER OF COURT - DATED 2/6/04 - IN RE ANSWER AND COUNTERCLAIM RESPONDENT'S COUNTERCLAIM SHALL BE HEARD AT THE SAME TIME AS PETITIONER'S ORIGINAL CLAIM WHICH IS CURRENTLY SCHEDULED FOR HEARING ON 4/5/04 AT 1:30 PM IN CR 3 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- ANSWER TO COUNTERCLAIM- BY M LUCILE LONGO ESQ FOR PETITIONER ------------------------------------------------------------------- ORDER OF COURT - DATED 4/5/04 - IN RE PETITION FOR ENFORCEMENT OF PROPERTY & MARITAL SETTLEMENT AGREMENT - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED 4/6/04 ------------------------------------------------------------------- 6/30/2004 ORDER OF COURT - DATED 6/30/04- IN RE PETITION FOR ENFORCEMENT OF pROPERTY AND SEPARATION AGREEMENT - IS GRANTED - IT IS ORDERED TO PAY ALL AMOUNTS OWED AS STIPULATED IN SAID AGREEMENT HOWEVER WE FIND IN FAVOR OF HUSBAND'S CLAIM FOR RESTITUTION IN THE AMOUNT OF S8~959.47 ON, PAYMENTS MADE IN EXCESS OF THE STIPULATED MORTGAGE PArMENT' IN SAID AGREEMENT WE AfuSO FIND IN FAVOR OF HUSBAND'S CLAIM UNDER SAID AGREEMENT FOR SUM OF $2000.00 CREDIT CARD DEBT - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- NOTICE OF APPEAL TO SUPERIOR COURT - BY LUCILE LONGO ESQ FOR PLFF ------------------------------------------------------------------- SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 1114 MDA 2004 ------------------------------------------------------------------- CASE TRANSFERRED TO SUPERIOR COURT OF PA ------------------------------------------------------------------- SERVICE OF THE LIST OF RECORD DOCUMENTS TO ALL COUNSEL/PARTIES ------------------------------------------------------------------- TRANSCRIPT OF PETTI ION FOR ENFORCEMENT OF PROPERTY & MARITAL SET~LEMENT AREEMENT BEFORE HON GEORG,E E HOFFER PJ ON MONDAY 4/5j04FILED - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - ~ PAGE 00. 3/26/2004 4/06/2004 !l4 - 116 7/15/2004 7/20/2004 9/03/2004 9/03/2004 9/10/2004 . -i-."- ~","'~, -~ ,,~ R."~,,",,"', Page 2 ******************************************************************************** * Escrow Information * * Fees & Debits Beo Bal Pvmts/Adi End Bal * ********************************~********~************************************** 35.DO 35.00 .50 .50 5.00 5.00 125.00 125.00 10.00 10.00 5.00 5.00 30.00 30.00 ------------------------ 210.50 210.50 .00 .00 .00 .00 .00 .00 .00 ------------ .00 DIVORCE TAX ON CMPLT SETTLEMENT MASTER'S FEE DIV PA SURCHG JCP FEE APPEAL ******************************************************************************** * End of Case Information * ******************************************************************************** 9/21/04 SUPPLEMENl'AL REXXlRD TRI\NS~~ 'ID SUPERIOR CXXlRT OF PA 9/21/04 SERVICE OF THE LIST OF RECDRD ~ 'ID ALL <XXlNSEL/PARrIES TRUE COPY FROM RECORD In Testlmonywhereof.lllerel.lntosetmyltand ,md the seal at Isle, ~ _ I l r~ r~ / ~ .};" :.." , , . Commonwealth of Pennsylvania County of Cumberland " -::';,.'0' } ss: I, ('11 rt- i" R T.nn ~ ' Prothonotary of the Court of Common Pleas in and for said County. do hereby certify that.the foregoing is a full. true and correct copy of the whole record of the case therein stated, wherein RAnnAll ~. GrARRmy~r Plaintiff, and E11zabeth Z. Grassmyer Defendant _, as the same remains of record before the said Court at No. 01-2452 of Ch ':'1 Term, A.D. 19_. hand and affixed the seal of said Court September A. D.. ?<J!04 . In TESnM~~Y WHEREOF, I have hereunto set my this S t day of Prothonotary I, George E. Hoffer President Judge of the Ninth Judicial Disctrict, cQmposed of the County of Cumberland. do certify that urt1s R. Long ,by whom the annexed record, certificate and attestation were made and given. and who. in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of CUMBERLAND in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as els here, and that the said record, certificate and attestation are in due form of law and made by the i Commonwealth of Pennsylvania County of Cumberland } ss: Presi nt Judge I. Curtis R. Long . Prothonotary of the Court of Common Pleas in and for the said County. do certify that the Honorable George E. Hoffer. P. J . by whom the foregoing attestation was made. and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given. as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF. I have hereunto set my hand and affixed the seal of said Court this 21st day of September A.D. :W~. Prothonotary . '~..Jt;",,'" :1_ ; llll I r .'l, Jlml-\L'. _iU_llt:.. '1 1 tL LJI J ---Jl'JI miIlll'JJ j J J ,- U~]:j . .",,:>'" o . Among the Records and Proceedings enrolled in the court of Common Pleas in and for the to No. CUMBERLAND .1:.1:.1:4 I"llJA .lUU4 01-~452 CIVIL COMPLETE in the Commonwealth of Pennsylvania county of Term. 19 is contained the following: COPY OF DOCKET ENTRY RANDALL S. GRASSMYER v. ELIZABETH Z. GRASSMYER SEE ATTACHED CERTIFIED DOCKET ENTRIES. ,~ , RECORD FILED IN SUP~RIOR COURT SEP 0 7 2004 JiMIJlJseuRb ~~ ~ . \\(' ~'~ ~~ ~'Ijj'~ It 'ij' :,'-" " ;,:1 'Ii "m ' Illr;;"lifT+ o o Commonwealth of Pennsylvania County of Cumberland } ss: I, Curtis R. Long . Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case tberein stated,..,wherein Kanda~~ ~. urassmyer In TESTIMONY WHEREOF. I have this 3rd Plaintiff, and Ei~zabeth ~. Grassmyer Defendant _, as the same remains of record before the said Court at No. 01-2452 of Civil Term, A.D. 19_. hereunto set my hand and affixed the seal of said Court day of Se tember A. D.,2904.-. Prothonotary I, ~QnT"'J42' 'R J.tn-F-F(:JJ."Y' President Judge of the 1\1; n+h Judicial District, comp'.'sed of the County of Cumberland, do certify that Curt~s R. Long , by whom the annexed record. certificate and attestation were made and given. and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas 9f said Counwbwas, at the time of so doing, and now is Prothonotary in and for said County of CUMBERLAN in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature e e d that the said record, certificale and attestation are in due form of law and made by " , esident .I udge Commonwealth of Pennsylvania County of Cumberland } ss: I, Curtis R. Long , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable George E. Hoffer. P. J . by wholll the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof. and ~till is President Judge of the Court of Common Pleas. Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought 10 be given. as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF. I have hereunto set my hand and affixed the seal of said Court this 3rd day f Se t ber A.D. jilJ!04 . Prothonotary PYS510 " ;1"" ,'~ __ " , ,-- UIll':-' o , / o Cumberland County Prothonotary's Office Civil Case Print 2001-02452 GRASSMYER RANDALL S (vs) GRASSMYER ELIZABETH Z Page 1 Reference No.. : Case Type.....: COMPLAINT - DIVORCE Judgment...... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc.: GRANTED ------------ Case Comments ------------- Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 4/26/2001 2:48 0/00/0000 10/01/2001 1114 MDA2004 ******************************************************************************** General Index Attorney Info GRASSMYER RANDALL S PLAINTIFF PETRIE CHARLES E 1003 NANCROC DRIVE APARTMENT 13 MECHANICSBURG PA 17013 GRASSMYER ELIZABETH Z DEFENDANT 98 ST JOHN'S ROAD CAMP HILL PA 17011 ******************************************************************************** * Date Entries * ******************************************************************************** PAGE ro. 1 - 3 4/26/2001 4 4/26/2001 5 8/10/2001 '6 8/10/2001 7 9/10/2001 8 9/10/2001 9 9/10/2001 10 9/10/2001 11 9/10/2001, 12-23 9/10/2001 24 - 25 9/10/2001 25A 10/01/2001 26-29 9/05/2003 30 - 43 12/16/2003 44 12/18/2003 45 - 57 2/04/2004 58 2/06/2004 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - COMPLAINT - DIVORCE ------------------------------------------------------------------- AFFIDAVIT OF NON MILITARY SERVICE ------------------------------------------------------------------- AFFIDAVIT OF CONSENT - PLAINTIFF ------------------------------------------------------------------- WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF,A DIV DECREE-PLFF ------------------------------------------------------------------- AFFIDAVIT OF SERVICE -------------------------------------------------~~---------------- AFFIDAVIT OF CONSENT - PLAINTIFF ------------------------------------------------------------------- WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-PLFF ------------------------------------------------------------------- AFFIDAVIT OF CONSENT - DEFENDANT ------------------------------------------------------------------- WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-DEFT ------------------------------------------------------------------- PROPERTY SETTLEMENT AGREEMENT ------------------------------------------------------------------- PRAECIPE TO TRANSMIT RECORD DIVORCE DECREE ENTERED BY GEORGE E HOFFER P J NOTICE MAILED ------------------------------------------------------------------- DOMESTIC RELATIONS ORDER RELATING TO THE ASSIGNMENT OF RANDALL S GRASSMYER'S ACCOUNT BALANCE UNDER THE SYSCO CORPORATION EMPLOYEES 401 K PLAN - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- PETITION FOR ENFORCEMENT OF PROPERTY & SEPARATION AGREEMENT - BY M LUCILE LONGO ESQ ------------------------------------------------------------------- ORDER 12/17/03 UPON CONSIDERATION OF THE WITHIN PETITION A RULE IS ISSUED UPONRESPONDENT-~RANDAfrLS GRASSMYER -TO SHOW CAUSE WHY THE PRAYER IN THE PETITION SHOULD NOT BE GRANTED IN RE: HEARING SCHEDULED THE 11TH DAY OF FEBRUARY 2004 AT 9:30 AM IN COURTROOM #3 OF THE CUMERLAND COUNTY COURTHOUSE GEORGE E HOFFER P JUDGE COPIES MAILED 12/18/03 ------------------------------------------------------------------- ANSWER AND COUNTERCLAIM TO PETITION FOR ENFORCEMENT OF PROPERTY AND SEPARATION AGREEMENT - BY MARIA P COGNETTI ESQ FOR DEFT ------------------------------------------------------------------- ORDER - DATED 2/6/04 - IN RE FACT THAT COUNSEL FOR DEFT IS UNAVIALABLE FOR HtARING ON 2/11/04 DUE TO MEDICAL ISSUES IT IS HEREBY ORDERED AND DECREED THAT THE HEARING SET FOR THAT DATE IS CONTINUED TO THE 465~04 AT 1:30 PM IN CR 3 CUMBERLAND COUNTY -COURT~OUSE CARLISL A - BY THE COURT GEORGE EHOFFER PJ COPIES MAILED ~ ' .. , " "' ~ ".-''''',-, ,. o / o PYS510 Cumberland County Prothonotary's Office Civil Case Print Page 2 77-80 81 - 82 Filed. . . . . . . . : 4/26/2001 Time.. .. .. .. . : 2 : 48 Execution Date 0/00/0000 Jury Trial. . . . Disposed Date. 10/01/2001 Higher Crt 1.: 1114 MbA2004 Higher Crt 2.: 2/06/2004 ORDER OF COURT - DATED 2/6/04 - IN RE ANSWER AND COUNTERCLAIM RESPONDENT'S COUNTERCLAIM SHALL BE HEARD AT THE SAME TIME AS PETITIONER'S ORIGINAL CLAIM WHICH IS CURRENTLY SCHEDULED FOR HEARING ON 4/5/04 AT 1:30 PM IN CR 3 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- ANSWER TO COUNTERCLAIM- BY M LUCILE LONGO ESQ FOR PETITIONER ------------------------------------------------------------------- ORDER OF COURT - DATED 4/5/04 - IN RE PETITION FOR ENFORCEMENT OF PROPERTY & MARITAL SETTLEMENT AGREMENT - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED 4/6/04 ------------------------------------------------------------------- 6/30/2004 ORDER OF COURT - DATED 6/30/04 - IN RE PETITION FOR ENFORCEMENT OF PROPERTY AND SEPARATION AGREEMENT - IS GRANTED - IT IS ORDERED TO PAY ALL AMOUNTS OWED AS STIPULATED IN SAID AGREEMENT HOWEVER WE FIND IN FAVOR OF HUSBAND'S CLAIM FOR RESTITUTION IN THE AMOUNT OF $8 959.47 ON PAYMENTS MADE IN EXCESS OF THE STIPULATED MORTGAGE PAYMENT IN SAID AGREEMENT WE ALSO FIND IN FAVOR OF HUSBAND'S CLAIM UNDER SAID AGREEMENT FOR SUM OF $2000.00 CREDIT CARD DEBT - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- NOTICE OF APPEAL TO SUPERIOR COURT - BY LUCILE LONGO ESQ FOR PLFF ------------------------------------------------------------------- SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 1114 MDA 2004 -------------------------------------------------~.----------------- CASE TRANSFERRED TO SUPERIOR COURT OF PA SERVICE-OF-THE-LIST-OF-RECORD-DOCUMENTS-TO-ALL-cofiNsEL/PARTIES----- - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - DEFENDANT'S EXHIBIT ******************************************************************************** * Escrow Information * * Fees & Debits Beo Bal Pvmts/Adl End Bal * ********************************~********~************************************** 2001-02452 GRASSMYER RANDALL S (vs) GRASSMYER ELIZABETH Z Reference No. . : Case Type.....: COMPLAINT - DIVORCE Judgment...... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc.: GRANTED ------------ Case Comments ------------- PAGE ]I(). 59 60-64 65 - 66 3/26/2004 4/06/2004 67 - 76 7/15/2004 7/20/2004 9/03/2004 9/03/2004 83 DIVORCE 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 MASTER'S FEE 125.00 125.00 .00 DIV PA SURCHG 10.00 10.00 .00 JCP FEE 5.00 5.00 .00 APPEAL 30.00 30.00 .00 ------------------------ ------------ 210.50 210.50 .00 ******************************************************************************** * End of Case Information ' * ******************************************************************************** TFWE ooPV FROM RECORD In TeetimOnY-wtlereof, I here unto set my bald n'id 8Nl of ' at C r11sle. ea. . J lill ~ J... :-1 ~~ ~,,~ 'T~'--'-o'~-<"-- . .. 0 '0 f RANDALL S. GRASSMYER, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NUMBER: (') 1- "'?I./S~ C\ u ~l '-T~ IN DIVORCE ELIZABETH Z. GRASSMYER, Defendant 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, Cumberland County Courthouse, Carlisle, PA. . 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. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE PA 17013 (717) 249-3166 f, '-, -..l,,~_ 'f''''-~~' ,--, -;, - ~li '0 '0 " RANDALL S. GRASSMYER, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NUMBER: tJ/-.2'1S:.z_ ~ /~ ELIZABETH Z. GRASSMYER, Defendant IN DIVORCE COMPLAINT UNDER SECTION 330l/c) OF THE DIVORCE CODE 1. Plaintiff is RANDALL S. GRASSMYER, who currently resides at 1003 Nanroc Drive, Apartment 13, Mechanicsburg, County of Cumberland, Pennsylvania, since August 5, 2000. 2. Defendant is ELIZABETH Z. GRASSMYER, who currently resides at 98 St. John's Road, Camp Hill, County of Cumberland, Pennsylvania, since 1991. 3. Plaintiff has been a bona fide resident in the Commonwealth for at least six months immediately previous to the filing of this Complaint. 4. The plaintiff and defendant were married on October 27, 1990, in Harrisburg, County of Dauphin, Pennsylvania. 5. There have been no prior actions of divorce or for annulment between the parties. 6. The marriage is irretrievably broken. J. .,~ ~,~,-",.. .."'~~, "'., ",'~;~ ,- Ii", ~~~ -"'-:fc "0 0" 7. 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. 8. Neither Plaintiff nor Defendant is a member of the Armed Forces of the United States of America or of any of its Allies. 9. After ninety (90) days have elapsed from the date of service of this Complaint, plaintiff intends to file an Affidavit consenting to a divorce. Plaintiff believes that defendant may also file such an affidavit. WHEREFORE, if both parties file affidavits consenting to a divorce after ninety (90) days have elapsed from the date of service of this Complaint, plaintiff respectfully requests the Court to enter a decree of divorce pursuant to Section 3301(c) of the Divorce Code. 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. Section 4904, relating to unsworn falsification to authorities. 4/Z~JDI , , ~~ PLAINTIFF ~ L If ~....,.., CHARLES E. PETRIE 3528 Brisban Street Harrisburg, PA 17111 (717) 561-1939 ATTORNEY FOR PLAINTIFF DATE: j <,-~' ""~.~,".,,--< ~":1!~ o .. RANDALL S. GRASSMYER, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW vs. : NUMBER: ELIZABETH Z. GRASSMYER, Defendant : IN DIVORCE AFFIDAVIT OF NON-MILITARY SERVICE I, Plaintiff herein, do hereby depose and say that I am advised and believe that the above named Defendant is not presently in the active military service of the United States of America and I aver that the Defendant is not a member of the Army of the United States, United States Navy, the Marine Corps, or the Coast Guard, and is not an officer of the Public Health Service detailed by proper authority for duty with the Army or Navy; nor is Defendant engaged in any military or Navy units covered by the Soldiers and Sailors Civil Relief Act of 1940 and designated therein as military service; nor has Defendant, to the best of my knowledge, enlisted in the military service covered by this act. This Affidavit is made under the provisions of the Soldiers and Sailors Civil Relief Act of 1940. 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. Section 4904, relating to unsworn falsification to authorities. 4/zsJol DATE' , ~j J/,~ RANDALL S. GRASSMYER, PLAINTIFF L ~i~mo"'''' "~'<j"'q;UlEil~~'&C",-400:li<;.r,>!k~"'i[~~' ""', . ~~,,' (J t~ w IV 0- \J - I o I' c' l . '.!: i Lj II [i II II 1,1 :1 . (') Cl 0 C -11 ;;:: )>0 -..---j -um -U ;'1~fTI rnUi ::u ~ z.......! N -sm z5;; 'X -:] (fJ ,~: 0"' ()(, -<L.. '.::I', '-0 -0 :-,I:.---d ~ :x SJo zO 0 r:t ?=-5m >c ~ z r;- =<! :rJ <):) -< ~ "'i<t '- - ~ ~ . ~ ~ l:1 ' C, a ~ () ~~ F~ )- ~Lf -,,_-,J --L'" .- 0" l-, ~, "2'." " "',ie. ' o o RANDALL S. GRASSMYER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. NUMBER: 01-2452 CIVIL TERM ELIZABETH Z. GRASSMYER, Defendant IN DIVORCE AFFIDAVIT OF CONSENT 1. A complaint in divorce under Section 3301{c) of the Divorce Code was filed on April 26, 2001. 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 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. Section 4904 relating to unsworn falsification to authorities. DATE: 8/7/ 2tJo I I' ,. ~~~ PLAINTIFF SWORN TO AND SUBSCRIBED BEFORE~IS~ DAY OF .IN- ,2001. Notaiiat Ssw Keli" P. Robarts, NolSty Public Paxlana Bora, Dauphin County I My Commission Expires Jan. Zl. 2005 Membei, Pennsylvsoia Association ot M~~ 5 'i~_-"~:"'~!ii~;lI~m~ii:am.l-~l;.Mll.!i,-J~jf~L~;;,;~"rll1~-~ ~\, ~~' ,,"<, - -,""' ."",j .. < ., "M ~.' - ^ 'WI ", 'm= ._"~ 0 0 () C -n s: E: ''- ~Eo c_ ,"j , Ir1"l G:l :J) tslJ; - 1';--' -<::Z c:> :~] I ~\...,) \...-' .-'0 , '"'j, )>cl - -0< zc5 ~.,~ ~~~-2 Pc r:? --I :S W ~~ ::0 -< c,.;. -< ~ , ~ i ,j , ''''-'' , ~ ..--, o o RANDALL S. GRASSMYER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NUMBER: 01-2452 CIVIL TERM ELIZABETH Z. GRASSMYER, Defendant IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER SECTION 3301(c) OF THE DIVORCE CODE 1. 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 I 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 of the 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. Section 4904 relating to unsworn falsification to authorities. DATE: B j, / Zool . ~~ P-ANDALL S. GRASSMYER, PLAINTIFF (p "fu~~MlI~"~W~llii!'lta",.,,tcMU;!,O;tiilM~eli~~~~~i~;.iBi"-"""'i-*iI:;-filiIillliffis<it~ ~""'l ~lI!I "'-~.~~""~ W'~'_ ~~~-> ~~- R~ Q '"'.llllilDf~ .i, 0 c Q c::: " $: '""' -nO) :::: ! ;:;.~ rrttl.:'; t:,-") ,"n 2-'.' " , ZC;:~ ,C1 c:) , ({h, ~.:-;.~:! ~cj -"0 ' '_-<1 --- 3: -:;j. (") )>C) 20 r:? tsrr1 :J>-c::: -4 ~ .",. W :0 (.;J '< I ;~>1Il - , ~ -~ ,-, ,',; ",. -.-"'j> ~ -'" -," ~;' JlL fi'" o o RANDALL S. GRASSMYER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NUMBER: 01-2452 CIVIL TERM ELIZABETH Z. GRASSMYER, Defendant IN DIVORCE AFFIDAVIT OF SERVICE CHARLES E. f>ETRIE, Esquire, being duly sworn according to law, deposes and states that he served a true and correct copy of the NOTICE TO DEFEND, COMPLAINT UNDER SECTION 330l(c), AND MILITARY-AFFIDAVIT, upon ELIZABETH Z. GRASSMYER, defendant, in the above-captioned matter, by mailing a true and correct copy of same by U.S. Certified Mail, return receipt requested, Article Number 70993400000717868658, postage prepaid, on April 28, 2001, to the following address: Name: ELIZABETH Z. GRASSMYER Address: 98 St. John's Road, Camp Hill, PA 17011 Defendant personally received said documents on Mav 2.2001. as evidenced by her signature on the certified mail return receipt card which is attached hereto and marked Exhibit "A". I verify that the statements in the foregoing Affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswemfalsification to authorities. ~" q~ - fX:n\ DATE t',.(,. Lcr~ CHARLES E. PETRIE ATTORNEY FOR PLAINTIFF . . 1 1 :a~r '~"~bl~c,"~"';;;""*~~lWlf"",:{;~__r.iill~ii.ijll{<<.;iJ\l)"~;""Wj;&,,~!iA!.~d!~iiJ!/'","...... ~.-.~~ -" ~ =_~~~, "n' < Ii --llja '~~' ~ o ,<" ,~"",,~>, ~.~,~~ ,,~,.' ~,~ I,,^~,~ Il..iLti.allrl.";~-" ~,I (";) CJ f 0 d1Fg en -r, r;; '-., ~- Z::C' i'l'i.:z<- i55: ,- CJ .:{'!Il ;:$4':: {._JV Q ~_) 1.. :s; " :c09 Zo :tr f!2~ 5>0 s;: - 6'" 2 =< - ?J f\.) -< . ( e Complete Items 1, 2, and 3. Also complete item 4 if RestrIcted Delivery is desired. . Print your name and address on the -reverse so that we can return the card to you. .. ""'ttach this card to the back of the mailpiece, Ot on the front if space permits. ' 1. l\rtlcJe Addressed to: Eli,zabeth Z. Grassmyer 98 Sc. John's Road Cam~ Hill PA 17011 D. [s delivery address different fr, If YES, enter delivery address 3. Se Type Certified Mail o Registered o Insured Mail ~~,~~~I,~, . o C.O.D, l.ir....i&fl. 4. Restricted Delivery? (Extra Fee) Yes '" -' . ~ ~ , 2. Article Numbe, (Copy from servIce !a~e9 7 0. 9 9 34 0 Q 0 Jl 0 "1 J 7 (3,6 (3.6 5,8 ,~02595~OO-M.0952 F t PS "rorrT13811,'JulY 1999' Domestic Return Receipt ,-.- _~N, ~<' ,~< '"'-'-,,',."';;-d'_Jij o ." " RANDALL S. GRASSMYER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NUMBER: 01-2452 CIVIL TERM ELIZABETH Z. GRASSMYER, Defendant IN DIVORCE AFFIDAVIT OF CONSENT 1. A complaint in divorce under Section 3301(c) of the Divorce Code was filed on April 26, 2001. 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 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. Section 4904 relating to unsworn falsifi\,:ation to authorities. DATE: 8 ;'1/ 200 I . r I ~~~ PLAINTIFF SWORN TO AND SUBSCRIBED BEFORE ME;,THIS :< I..j 'k...- DAY OF' ,Jh I ?"0+ , 2001. J;lJuc 4,;1, , MY COMMISSION EXPIRES: ~. ~1d06/_._. Notarial Seal KBlly P. Roberts, Notary Public paxtang Bora, Dauphin County My Commission Expires Jan. 27, 2005 Member, Pennsylvania Association ot Notaries <X' .... " ~'it~~t:='" -'-' '''''j~i!ft~~~~~~''',*I~!jl;;~_m ,~ ~~; ~- ',^, "., ,".."' ~" " '............,.... o "'"" ~~_,;_ " 'o~_"'" ,~. ~ ,~.,,, """', I' I I I I': ;-: I' C) 0 0 c: :s:: '11 U en -I 92tR f'T1 ct " :'1",'-0 z-". . ";- <:oS;: "f)m ~6 0 86 :B: v :?~Ti :;;:0 ::J: ,~), :!J )>0 ",.0 C 6/11 ~ 'i>! f\) jj -< " " "" ~ ~~= .--oc ,-,,- '__,_p"".' /'\ o - . . <- RANDALL S. GRASSMYER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NUMBER: 01-2452 CIVIL TERM ELIZABETH Z. GRASSMYER, Defendant IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REOUEST ENTRY OF A DIVORCE DECREE UNDER SECTION 3301/c) OF THE DIVORCE CODE 1. 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 I 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 of the 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. Section 4904 relating to unsworn falsification to authorities. DATE: 8 J,/2001 , . ~~Jk~~~ RANDALL S. GRASSMYER, PLAINTIFF c J rliE,,*,' i/I;~~I~"'''";'':i~a''';~; ~"i.' .',.- ~~iffiic_<h;I\'''""~:'1ili>ii',~~ \'-~-"" ,~,,-, o'_~ " .~,""',,~' IIA w ,,,,,",',A_ '"~'7~" ~.~". o -- k' ~.. Cl 0 ~ 0 -os;. 0,) " nco ;;}fJ! r;J -< ::jfp! ,~i.:u (l,)J2 - ;-' ~6 0 31QJ ..~:;; ('-'l 3f; -0 ~-L <::0 ""'l;.,. ~ '. ;$:0 -" o:rJ , c::: - ?C) ~ c5f'll - j;;l ,.,,,, :0 "< '.., . 'c, ,"',""c_"~" .." ,.,^' .. '"", .-~- .. -",'~~ '.e, o o RANDALL S. GRASSMYER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NUMBER: 01-2452 CIVIL TERM ELIZABETH Z. GRASSMYER, Defendant IN DIVORCE AFFIDAVIT OF CONSENT 1. A complaint in divorce under Section 3301{c) of the Divorce Code was filed on April 26, 2001. 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 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. Section 4904 relating to unsworn falsification to authorities. DATE: fJ-';?f?-tJl ~ffilid~. ~~ ELIZ ETH Z. SSM R, DEFENDANT SWORN TO AND SUBSCRl6ED BEFORE ~ THIS d8"--:<<' DAY OF ~pS/ ,2001. c ~~~~. NOTARY PUBLIC MY COMMISSIO NOTARIAL SEAL MICHAEl R. CARANCI, Notary Public Camp Hill Bpro. Cumberland County My Comml~lon Expires Juno 15, 2002 ] ,'," - }D. , , - , '0' t"-~rJ:dilii'-'-";'tiij~~}ii~i!i.i!.J!"'~ --"~''''';'''~'-~~~ililioil,w,i;;..~~!<i:~~-' "''(~ "','~ ~, "~ ~",.,'<-"'P', ".__,=. '0 ,', _~~_"~~~ ~"~ .... ~ ~ f" 'WI ,-,~ ,'H_ ,,,",W' "~~1Il1W (") 0 0 C -n s: (/) '4 ""U.(J:I fT1 ":r mg] -0 H;~ z '; ZS;; ",m (f) " <::) COY -<..::.,. '~6 ~CJ -0 -"'-'1 ~O ::It 5""" -~O -0 ""--rn >c: - 0 z .. ~ -=J N -<;. -< ~ --', .~" '<"-'.. ~" ~,-,,~ ~ I: I I --, ~.. ,.,..\1 " ),... '.L.~ ", J I 0' k, ,J _H,--';;i__" ',j:,i~',"' C -0- (;i~ o o RANDALL S. GRASSMYER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NUMBER: 01-2452 CIVIL TERM ELIZABETH Z. GRASSMYER, Defendant IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER SECTION 330lfcl OF THE DIVORCE CODE 1. 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 I 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 of the decree will be sent to me immediately after it is filed with the prothonotary. I verity 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. Section 4904 relating to unsworn falsification to authorities. DATE: c;-.2? Of 'ct~-&. 4"M~ ELIZ. ETH Z.o sSMYER, DEFENDANT (\ ~i'.~~_1!ilIilJl!~_,,]-,-.~,,;,~t_iUlH~~AASM:li1~J:~n~"''''-' " ~ --. "..;, '~" ~' i~' ,..~ o ii I: I; I; I' , I C) 0 ~ c: 7 r.n ---I -0'05 fT1 ri~ :JJ ~gj -0 :~r-n ZC <P,,>;: Cl '~6 ;.." 2""- -1,_.) :--t:o -0 :=iT; :i> C' ~. >.~ --n Z' - ;;~O -0 - Om J>c .. '1i! Z :;! N :'a -< Co -"'-, , . "', - -,' ..",,,";k.'~k,,,I_,,,," 0:', ,~{~ -"--",,', 'c," -.. -,' ,;jh-,i"",,~"" ";,;"'~,,,-,:",,_,,;,'~~..;A~"~""">"r ""~-~,~, .~.. -'<i'~~-r~ . , . o " PROPERTY AND SEPARATION AGREEMENT THIS AGREEMENT made .,.7Jv day of IltlGJtST by and between ELIZABETH L. GRASSMYER of 98 st. John's Hill PA, (hereinafter referred to as "WIFE"); AND RANDALL S. GRASSMYER of 98 st. John's Rd., Camp Hill, PA, (hereinafter referred to as "HUSBAND"); WHEREAS, the parties were married on October 27, 1990, and there has been one child born of this marriage, ALEXANDER, born November 15, 1993. WHEREAS, the parties hereto are contemplating separation; and WHEREAS, the parties hereto are desirous of settling fully and finally their respective financial and property rights and obligations as between each other including, without limitation by specification, the settling of all matters between them related 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 or maintenance of WIFE , 20 0<:;> Rd., Camp by HUSBAND or of HUSBAND by WIFE; and WHEREAS, both parties agree to relinquish any and all claims which either may have against any property now owned or belonging to the other or which may hereafter be acquired by either of them by purchase, gift, devise, bequest, inheritance otherwise, except as to the obligations, covenants and agreements contained herein; NOW, THEREFORE, the I,larties intending to be legally bound hereby do covenant and agree that: SEPARATION: It shall be lawful for each party at all times hereafter to live separate and apart from the other party at such place as he or she may from time to time choose or deem fit. The - 1 - (J. ~,~ --~ --, '"'~~- ',<'=>'1,....."'''",'",,, ".'~' - :B;,,';',_-_"",",'"' "",-,,,,,,",,\;,;,,-,,~,i!',,",,''''"'''' -',__' '-';"'-'-""")1 . - '. o \ foregoing provisions shall not be taken as an admission of the lawfulness or unlawfulness of the causes leading to their living apart. INTERFERENCE: Each party shall be free from interference, authority, and contact by the other as fully as if he or she were single and unmarried except as may be necessary to carry out the provisions of this Agreement. Neither party shall molest the other or attempt to endeavor to molest the other, nor compel the other to cohabit with the other, or in any way harass or malign the other, nor in any way interfere with the peaceful existence, separate and apart from the other and each of the parties hereto completely understand and agree that neither shall do or say anything to the child of the parties at any time which might in any way influence the child adversely against the other party. DESIRE OF THE PARTIES: It is the desire of the parties, after long and careful consideration, to amicably adjust, compromise and settle all property rights and all rights in or against each other's property or estate, including property heretofore or subsequently acquired by either party, and to settle all disputes existing between them, including any and all claims for WIFE'S and/or HUSBAND'S maintenance and/or for his/her support, alimony, counsel fees and costs, custody and equitable distribution. DIVISION OF PERSONAL PROPERTY: The parties have divided between them, to their mutual satisfaction, the personal effects, household furniture and furnishings and all other articles of personal property which have heretofore been used by them in common, and neither party will make any claims to any such items which are now in the possession or under the control of the other. Should it become necessary, the parties each agree to sign any titles or documents necessary to give effect to this paragraph upon request. INTANGIBLE accounts in the PERSONAL PROPERTY: joint names of WIFE All savings and checking and HUSBAND have been closed - 2 - ,~ - "">hi" r ,', '~_'''_ "_"",, "'_~" ,,',;.N ',~"'-', ~_' 0'." "oed' .,~"':c-,~;...,,' ~ 'A"'~;,,o;;~i" , '. . - '. o " and the funds deposited therein withdrawn and divided between the parties heretofore. All such accounts and items of intangible property in the individual name of WIFE, and HUSBAND shall remain tbe separate property of each, independent of claims or rights of the other, and each does hereby specifically waive, release, renounce and forever abandon whatever claims, if any, he or she may have with respect to those items in the possession of the other. ALIMONY. ALIMONY PENDENTE LITE. SUPPORT AND MAINTENANCE: WIFE acknowledges that by this Agreement, she has respectively secured and maintained a substantial and adequate fund from which to provide herself sufficient financial resources to provide for her comfort, maintenance and support in the station of life for which she is accustomed. WIFE specifically waives, releases and gives up any rights she has against HUSBAND for alimony, alimony pendente lite, support or maintenance. HUSBAND and WIFE acknowledge that WIFE is waiving any claim for alimony in return for HUSBAND'S agreement to reimburse WIFE the sum of $500.000 per month for HUSBAND'S share of the mortgage on tbe marital residence. HUSBAND shall pay to WIFE the aforesaid sum of $500.00 on the first day of each month beginning on August 1, 2000 and continuing on the first day of each month until ALEXANDER reaches the age of 18. The aforesaid payment due to WIFE shall continue regardless of whether or not WIFE chooses to pay the mortgage in full at some time in the future. WIFE specifically waives, release, and gives up any right to alimony pursuant to Chapter 5, 23 P.S. Sec. 501 of the Divorce Code of the Commonwealth of pennsylvania, Act of April 2, 1980, as amended. REAL ESTATE: The parties are owners of real estate situate at 98 st. John's Road, Camp Hill, PA. Said property shall become the sole and absolute property of WIFE, and HUSBAND agrees to execute a Deed conveying such title to WIFE, subject to mortgages" covenants, and restrictions of record if any. WIFE agrees to - 3 - I~ ,,0.' ~ " 0'. ~ . '5,,,",," ,'"'; . _ _~ .X '~-',~,;-"" h'.' ., _ ,.," H .' '" "-'<'--'~::.^: '-'''-~ .'. 41 " assume liability for any mortgages and agrees to indemnify and hold HUSBAND harmless from any liability, loss, expense and claims, including court costs and attorney's fees incurred by HUSBAND should HUSBAND have to pay on any mortgage and bond or defend against any payment thereon. The assumption and indemnification called for herein includes both the first and second mortgages. INTENDED TAX RESULT AND INDEMNIFICATION: By this Agreement, the parties have intended to effectuate and by this Agreement have equally divided their marital property. The parties have determined that such equal division conforms to a right and just standard with regard to the rights of each party. The division of existing marital property is not, except as may be otherwise expressly provided herein, intended by the parties to constitute in any way a sale or exchange of assets. As part of the equal division of the marital property and marital settlement contained herein, the parties agree to save and hold each other harmless from all income taxes assessed against the other resulting from the division of the property herein provided. BANKRUPTCY OR REORGANIZATION PROCEEDINGS: In the event that either party becomes a debtor in any bankruptcy or financial reorganization proceedings of any kind while any obligations remained to be performed by that party for the benefit of the other party, pursuant to the provisions of this Agreement, the debtor/spouse hereby waives, releases and relinquishes any right to claim any exemption (whether granted under state or federal law) to any property remaining in the debtor as a defense to any claim made pursuant hereto by the creditor/spouse, and the debtor/spouse hereby transfers, assigns and conveys to the creditor/spouse an interest in all of the debtor's exempt property sufficient to meet all obligations to the creditor/spouse as set forth herein, including any obligations for attorneys' fees and costs incurred in the endorsement of this paragraph or any other provision of this Agreement. No obligation created by this Agreement shall be - 4 - 15' ~ ~' "~'_C,~__,;~ _~__"-J._._,,_"__~ '" ',."" ,-'.'-e""',,,", _,',.:__, ,""""Ai_'''-""",__>.i ,- _0_ ~'-Q,o'~i " . . dischargeable regardless of federal or state law to the contrary, and each party waives any and all right to assert that any obligation hereunder is discharged or dischargeable. DEBTS: HUSBAND and WIFE represent and warrant to each other that neither one has contracted any debt or debts, charges or liabilities whatsoever, for which the other party or their property or their estates shall or may be or become liable or answerable, and they covenant that they will at all times keep each other free, harmless and indemnified against and from any and all debts and liability heretofore or hereafter contracted or incurred by either of them, except as expressly provided in this Agreement. HUSBAND agrees to be solely responsible for the following debts and obligations of HUSBAND and WIFE incurred prior to the signing of this Agreement as follows: 1. Sears charge accounts; one in the name of HUSBAND and one in the name of WIFE. 2. Keystone oil bill - $69.60 3. Electric bill - $119.89 4. Telephone bill - $175.69 5. 1999 per capita tax - $83.50 6. Sewer/Refuse bill - $145.20 7. Lease payments for WIFE'S vehicle for the months of June, July, August and september. The total amounts due for June and July - $696.89 shall be paid within seven days of the execution of this Agreement. 8. Master Card with Navy Federal Credit Union with approximate balance of $7,000.00. WIFE shall reimburse HUSBAND the sum of $2,000.00 for WIFE'S share of said debt. WIFE shall pay to HUSBAND the sum of $40.00 per month until said sum is paid in full. Said payments shall commence on January 1, 2001. - 5 - If.o 0<" -" M- _1"'"-""'_".-_--._ " _to, ,~-, .,0-,1 ." -- ""~,.'_ ~-_",:_". 'C__-f';:_oCo_" :;'0;;i:";~C__~','~'-_;' ~,~' ~ "-'-:f'if;~ . . WIFE agrees to be solely responsible for the following debts and obligations of HUSBAND and WIFE incurred prior to the signing of this Agreement as follows: l. Bon Ton VEHICLES: The 1998 Toyota Camry shall become the sole and absolute property of WIFE, and HUSBAND shall make no claim of ownership thereto. The 1995 Volvo shall become the sole and absolute property of HUSBAND, and WIFE shall make no claims of ownership thereto. HUSBAND agrees to assume any liens or encumbrances on said vehicle. STOCK FUND: HUSBAND has an investment stock fund with his employer administered by Salomon Smith Barney with an approximate value of $2,900.00. Said account shall become the sole and absolute property of HUSBAND, and WIFE waives any claims thereto. PENSION AND PROFIT SHARING PLANS: HUSBAND specifically agrees that WIFE'S pension and profit sharing plans with her employer are the sole and absolute property of WIFE, and HUSBAND is voluntarily giving up all claims to said plans under the equitable property provisions of the Pennsylvania Divorce Code, as well as all rights under Federal ERISA laws. WIFE specifically agrees that HUSBAND'S pension and profit sharing plans with his employer are the sole and absolute property of HUSBAND, and WIFE is voluntarily giving up all claims to said plans under the equitable property provisions of the Pennsylvania Divorce Code, as well as all rights under the Federal ERISA laws. HUSBAND shall pay to WIFE the sum of $20,000.00 for WIFE'S shall in HUSBAND'S pension/Incentive Plan with Sysco corporation. Said sum of $20,000.00 plus all investment earnings and losses on said funds with Sysco Corporation Savings and Incentive Plan (SIP) earned after the signing of this agreement shall be transfe~red to WIFE immediately after the parties are divorced. WIFE agrees to prepare any and all documents necessary, including a Qualified Domestic Relations Order, to transfer the aforesaid funds to WIFE. - 6 - Il ~ ,_ .___.v - __" __,,~_, "o'~ 'A~" w,., --I - h'C ". '" . -,._-,.-",,,,~;.j.,~, ,'{r"",' c-~'Z"~,~-"<" _ ~_._"',,,,: ;~"_ ___-",:.:."+,:...:;.G~ ,;:::';;.<-,1.0>. _, .;_, ,..::-" ,_ "'~-:f;~ .. .- . HUSBAND agrees to file "No Fault" divorce proceeds and finalize said Divorce within three years of the date of the signing of this agreement. HUSBAND further agrees not to dissipate or borrow funds from the Sysco Corporation Savings and Incentive Plan so as to reduce benefits owed to WIFE pursuant to this agreement. HEALTH INSURANCE: HUSBAND agrees to maintain major medical and hospitali~ation insurance on WIFE for a period of three years from the date of the execution of this Agreement. CUSTODY: The parties shall have shared legal custody of ALEXANDER so that each shall participate in major decisions affecting the best interests of said child including, but not limited to, medical, religious and educational decisions and each parent shall have access to medical, dental and school records. Mother will have primary physical custody of ALEXANDER; Father will have partial physical custody on alternate weekends from Friday at 6:00 pm until Sunday at 5:00 pm; every Wednesday from 6:00 pm until 8:00 pm; The parties shall alternate the five major holidays, i.e., Labor Day, Thanksgiving, Easter, Memorial Day and 4th of July; Christmas from December 24th at noon to December 25th at 2:00 pm with Mother every year. From December 25th at 2:00 pm to December 26th at 2:00 pm with Father. Two weeks vacation with each parent with thirty (30) days notice to other parent. CHILD SUEPORT: HUSBAND agrees to pay $100.00 per week for the support of ALEXANDER until he reaches the age of l8 or is emancipated. HUSBAND further agrees to maintain major medical and hospitalization insurance on said child. HUSBAND further agrees to be responsible for all unreimbursed dental and medical expenses incurred on behalf of said minor. HIGHER EDUCATION: HUSBAND acknowledges that the parties have planned that higher education shall be made available for their child should he qualify for formal education beyond high school. HUSBAND agrees that should their child qualify for formal education - 7 - {~ __ I ,.""-.'__ -,~. ;'0- ,0_"""0___",-,',_,;', _'~,~,-c -' ;A~-;~':i/-""-- - ,',';>i ,~;..,~;;;L,~'_^,',,;_,"_o '-d', --"'<lid . . beyond high school, HUSBAND shall pay 75% of all tuition, board, books and other incidentals for the benefit of said child attending such school. TAXES: The parties agree to file jointly all Federal, State and Local tax returns for the 2000 tax year. All tax liabilities shall be paid by HUSBAND. Any and all tax refunds shall be shared equally by the parties. LIFE INSURANCE: HUSBAND agrees that he will maintain WIFE as the beneficiary of both his Iowa Life Insurance policy with a face value of $l50, 000.00, as well as his policy with his current employer until his child is emancipated or completes college, whichever occurs last. HUSBAND agrees that he will not default on premium payments or borrow on said policies or in any way reduce the value so as to provide fewer benefits for WIFE. WIFE agrees that she will maintain HUSBAND as the beneficiary of her Iowa Life Insurance policy until the parties' child has attained the age of l8. HUSBAND shall pay all premiums for the aforesaid policy until ALEXANDER reaches the age of 18. MUTUAL RELEASE: Subject to the provisions of this Agreement, each party has released and discharged, and by this Agreement does for himself or herself, and his or her heirs, legal representatives, executors, administrators and assigns, release and discharge the other of and from all causes of action, claims, rights or demands, whatsoever in law or equity, which either of the parties ever had or now has against the other, except any or all cause or causes of action for divorce and except any or all causes of action for breach of any provisions of this Agreement. WAIVER OF CLAIMS AGAINST ESTATES: Each party hereby releases and relinquishes any and all rights that he or she may now have or hereafter acquire as spouse under the present or future laws of any jurisdiction to share in the estate of the other party upon the latter's death and to act as executor or administrator of the other party's estate. This provision is intended to constitute a mutual - 8 - Iq 1 ,W~ -'", I - ,--, ". ""~ ,- ";.' ;,,'. -":,," - ~-~- ':-""''<C._l_'i._: ~"';i - ',,;.,",.-"" oC ';;;',~'C'Y'-< "~-. "~~i '. '. .0 " waiver by the parties to take against the other's Last Will under the present or future laws of any jurisdiction whatsoever. WAIVER OF CLAIMS: Each party accepts these provisions in lieu of and in full and final settlement and satisfaction of all claims and demands that each may now or hereafter have against the other for support and maintenance of himself or herself, for alimony, alimony pendente lite, counsel fees and expenses or for any provision for support and maintenance. DISCLOSURE: Each of the parties hereto agrees that he or she has made a full and complete disclosure to the other of all assets and liabilities whether joint or individual of each party and each party further acknowledges that he or she is satisfied that such complete disclosure has been made. DIVORCE PROCEEDINGS: The parties acknowledge that divorce proceedings under Section 330l(c) of the Divorce Code, which encompasses a "No-Fault" divorce may be filed by either party in the future. If that contingency occurs, the parties agree that each will sign, execute and file any pleadings, affidavits and any other documents necessary to obtain a divorce. The parties further agree that neither shall request counseling as provided in said Divorce Code. EOUITABLE DISTRIBUTION: The parties agree that the provisions herein for the division of property, real and personal, are fair and reasonable and expressly in lieu of those which the parties could obtain through court action under the appropriate sections of the Divorce Code. Accordingly, other than as provided herein the parties mutually release each other, their heirs, assigns and legal representatives from any and all claims or causes of action, rights, or benefits under the Pennsylvania Divorce Code of 1980. VOLUNTARY EXECUTION: The parties declare that each has had a full and fair opportunity to obtain independent legal advice of counsel of his or her selection; that ELIZABETH L. GRASSMYER has been independently represented by counsel and that RANDALL S. - 9 - d-O "c- ''-' ___ ., ~'o~_ __ ,,_''-.___' I~,,', '''n '-,,,",_d_':,^___ """- '-.'.=, ._,',,__, L, ,,,,,_:,,.;-,-,:C^,,,__~,-y:, __,_". ';~ ~,__;;~l.j-_\;~-~-~" ',,--'J_:", 'jj . . GRASSMYER is cognizant of his right to legal representation, confirms that it is and has been his express, voluntary and knowing intention not to avail himself of the right to counsel. RANDALL S. GRASSMYER further acknowledges that he chooses instead to represent himself with respect to the preparation and execution of this Agreement. RANDALL S. GRASSMYER further declares that he is executing this Agreement freely and voluntarily, having obtained such knowledge and disclosure of the parties' respective assets, liabilities, legal rights and Obligations and that RANDALL S. GRASSMYER acknowledges that this Agreement is fair and equitable and is not the result of any fraud, coercion, duress, undue influence or collusion. BREACH: 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, and the party breaching this contract shall be responsible for payment of legal fees and costs incurred by the other in enforcing their rights under this Agreement, or seek such other remedies or relief as may be available to him or her. APPLICABLE LAW: This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania. ENTIRE AGREEMENT: This Agreement contains the entire understanding of the parties and there are no representations, warranties, covenants or undertakings other than those expressly set forth herein. MODIFICATION AND WAIVER: A modification or waiver of any of the provisions in this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. - lO - dl .--~.-.: c.., '':'0'-;'':'' I, ' '"- ,_,_: ..-' ,= ',.:-. ~. y~: ~ <_ ,.." ;".,:.'5,'::"~ :,.;U,F "'-":i/;M" , . .0-'- , EXECUTION OF DOCUMENTS: Each party, shall at the request of the other, execute, acknowledge and deliver any documents which may be reasonably necessary to give full effect to this Agreement. VOID CLAUSES: If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, 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 at full force, effect and operation. DESCRIPTIVE HEADINGS: The descriptive headings used herein are for convenience only. They shall have no effect whatsoever in determining the rights or obligations of the parties. IN WITNESS WHEREOF, and intending to be legally bound, the parties have hereunto set their hands and seals the day and year first above written. S: 11- M;jL- - 11 - Jol , ~ -- . . ~-~W'- -',"- M__'-."-" '.., .", ',--_", ~, - ~"_ -', ',,,-,,~;',,,,,-, ,_'_-.'-C-' __ _ ~ ._"~ ,.~{i . . ) ) SS: ) On this t' day of II/(~r , 2000, before me, a Notary Public, the undersigned officer, personally appeared ELIZABETH L. GRASSMYER, known to me or subsequently proven to be the person whose name is subscribed to the within instrument and acknowledged that she executed the same for the purposes therein contained. COMMONWEALTH OF PENNSYLVANIA C.WV\be.rlo..nd COUNTY OF LHICJ\.D'FElt IN WITNESS WHEREOF I have hereunto set my hand and notarial seal. ~t~ Notary Public My commission expires: NOTARIAL SEAL ROBERTA E. BIESECKER, Notary Public Camp Hill Boro, CumberfarKI County My Commission ExpIre& 23. 2001 COMMONWEALTH OF PENNSYLVANIA ~u.mberlQ~d SS: COUNTY OF T.l\NC'AO'FE'R On this ~ day of ,tJtl6-It.s"T , 2000, before me, a Notary Public, the undersigned officer, personally appeared RANDALL S. GRASSMYER known to me or subsequently proven to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF I have hereunto set my hand and notarial seal. ~t~ Notary Public My commission expires: NOTARIAL SEAL ROBERTA E. BIESECKER, Notary Public Camp Hill Boro, Cumbe1land.CountY My Commission Expires J 23. l!OOl - 12 - :13. "'" <c&11i ,~." ".,.,-- ~> r : - ~ ,':,';t, ~;,__~,j. .~~ "'o~"__~^M=~,'__ ~ co "'<<'.." "'-" ,~ ,- " . '::J 1':"1 -7 ~-:::; S~4 ~L~J 0;; Z0 $Q L~ :?:: -j -<~ .. c:) Cl "';--1 :1) .'1 '.v =.',-3 ;:_ ~T! <::;> '~;fI! ~:~155 6jj >-0 OfT} :--i :i5 -< 2.] _:1: /\j ~f"C ~~ '" ': , ~ '..'"",-"-,,, ,",,- ~, '.~ ':t.c .. c o RANDALL S. GRASSMYER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CMLACTION - LAW vs. NUMBER: 01-2452 CMLTERM ELIZABETH Z. GRASSMYER, Defendant IN DIVORCE PRAECIPE TO TRANSMIT RECORD TO THE PROTHONOTARY: Transmit the record, together with the following information, to the court for entry of an appropriate divorce decree: 1. Ground for divorce: Irretrievable breakdown under 133301 (c) of the Divorce Code. (Strike out inapplicable section). 2. Date and manner of service of complaint: May 2,2001, by certified mail. 3. Complete either paragraph (a) or (b): (a)(l) Date of execution of the affidavit of consent required by 3301(c) of the Divorce Code: by plaintiff: August 27,2001; by defendant: August 27, 2001. (a)(2) Date of execution of the Waiver of Notice of Intention required by 133301(c) of the Divorce Code: by plaintiff: August 27,2001; by defendant: August 27,2001 (b)(l) Date of execution of the affidavit required by 13330 1 (d) of the Divorce Code: (b)(2) Date of filing and service of the plaintiffs affidavit upon the respondent: Filed: ; Served: 4. Related Claims Pending: No claims raised. 5. Complete either (a) or (b): (a) Date and manner of service of the notice of intention to file praecipe to transmit record, a copy of which is attached: a lD , , , " ~ - '<' ,,~, i,-i'~_""", ,-', c . (b) Date plaintiff's Waiver of Notice in ~3301(c) Divorce was filed with the prothonotary: September 10, 2001. (c) Date defendant's Waiver of Notice in ~3301(c) Divorce was filed with the prothonotary: September 10, 2001. ~.." t:~ CHARLES E. PETRIE ATTORNEY FOR PLAINTIFF rl6 r;ij1jM;iljJOOiliW~A1~'>1!Ml;.um.!mN~\jbi'<iiffi"i~~~~;,jlffidJ";'<;A",\ r>tA"',",.s:M!i;;;""i"~",,,,-,;,;:",~~!lIII!Ili~ildl:di.ilIi&!L ' ~o ~_ ~ ~ ~" ., ^ ^ ~~1<f.il ~ o - Ik!.r I!I.illJlJ 0 0 () C .1 -:2' :.n ""DC)'] iTJ ,-. mrr: ." G1Z! -:7 ..... ~r: -,":fTl U)J> c:; ;'~T -<"-;:>-- ~^ !2C -"'U --0 -',- ,~ :-1>0 :J4 ;..!.:;'-n 20 ~O 2m :J>c: - 0 ~ .. ?5 N -< fJ~ . ,,' ." " . " . . . " " . " . , . , . " " . , . . " . , . . " " " , " . " " " " " " . " , " " " " " " " " " " . " " " " , " " . " " " ;/:,.; Of. 't; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF PENNA. RANDALL S. GRASSMYER, No. 01-2452 CIVIL TERM Plaintiff VERSUS ELIZABETH Z. GRASSMYER, Defendant AND NOW, DECREE IN DIVORCE <O&bc.v'.L . _ I. _ 2001 , IT IS ORDERED AND it- (( ~~~ DECREED THAT RANDALL S. GRASSMYER , PLAI NTI fF, AND ELIZARF.TH Z. GRASSMYF.R , 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; IT IS FURTHER ORDERED that the parties' Marital Settlment Agreement date the fourth day of August, 2000, shall be incorporated into, but not merged with, this Decree in Divorce. . J. PROTHONOTARY " " ~ :f. ~ m~ m ~m~ m~m mmm mmmm m mmm "':f. m Of. " " " " " " . , " , " " " " " " " . , " , " " . " " " , " , " . " " " , " . . " " , " . , , " " , " , " . , dG"k - , " f&-__ ... . . .~ SEP 0 3 Z003 W IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW In the Matter of the Marriage of: RANDALL S. GRASSMYER NO. 01-02452 Civil Term AND In Divorce ELIZABETH L. GRASSMYER DOMESTIC RELATIONS ORDER RELATING TO THE ASSIGNMENT OF RANDALL S. GRASSMYER' S ACCOUNT BALANCE UNDER THE SYSCO CORPORATION EMPLOYEES' 401(k) PLAN The Court finds that Randall S. Grassmyer (the "Participant") has been a participant in the SYSCO Corporation Employees' 40l (k) Plan (the "401 (k) Plan") and has earned a portion of his account balance under the 401(k) Plan during the period of time that the Participant was married to Elizabeth L. Grassmyer (the "Alternate Payee"). The Court further finds that certain of the Participant's account balance under the 401(k) Plan should be partitioned, assigned, and distributed in accordance with the terms of this Order. IT IS ORDERED AND DECREED as follows: 1. As part of the just and right division of the estate - 1 - oZ~ . . . . of the parties, the Court awards, assigns, and grants to Alternate Payee an amount equal to $20,000.00 from the amount credited to Participant's entire Account under the 40l(k) Plan as of the Plan valuation date immediately preceding the date of this Order, adjusted by a pro rata allocation of earnings and losses in accordance with Plan provisions and that the Alternate Payee shall have no interest in the balance of the Participant' s entire Account in the 401 (k) Plan not awarded to Alternate Payee. 2. The Trustee of the 401 (k) Plan shall pay to the Alternate Payee the 401 (k) Plan benefits awarded to her adjusted by a pro rata allocation of earnings and losses in accordance with Plan provisions, in the form of a single sum payment entirely in cash at the earliest time payment can be made under the terms of the Plan after the Committee has determined that this Order is a qualified domestic relations order within the meaning of Section 206 (d) of the Employee Retirement Income Security Act of 1974, as amended, and satisfies the requirements of Section 414 (p) of the Internal Revenue Code of 1986, as amended (the "Code"). The Alternate Payee shall be entitled to payment of the 401(k) Plan benefits awarded to her only if the Account is or becomes vested under the terms of the 401 (k) Plan. 3. To the extent that the Trustee of the 401 (k) Plan erroneously pays to the Participant any benefits that are payable to the Alternate Payee under this Order, the Participant shall be deemed to be a trustee holding the amount of such - 2 - :17 , H o . benefits in a constructive trust for the benefit of Alternate Payee. The Participant is ordered to pay such amount to the Alternate Payee within five days after he receives such amount. 4. To the extent that the Trustee of the 401 (k) Plan erroneously pays to the Alternate Payee any benefits that are payable to the Participant under this Order, the Alternate Payee shall be deemed to be a trustee holding the amount of such benefits in a constructive trust for the benefit of the Participant. The Alternate Payee is ordered to pay such amount to the Participant within five days after she receives such amount. 5. The mailing address of the Alternate Payee is 98 St. John's Road, Camp Hill, PA 17011, her birth date is 12/20/56, and her Social Security number is 188-40-0866. 6. The mailing address of the Participant is 1459 Hillcrest Court, Apt. 509, Camp Hill, PA 17011, his birth date is 10/27/66, and his Social Security number is 211-52-5804. 7. This Order shall not require the 401 (k) Plan to provide any type or form of benefit, or any option, not otherwise provided by the 401(k) Plan; nor require the 401(k) Plan to provide increased benefits (determined on the basis of actuarial value) . 8. This Order does not require the 401 (k) Plan to provide benefits to Alternate Payee that are required to be paid to another Alternate Payee under another order previously determined to be a qualified domestic relations order. - 3 - A~ . .' " ~ . . The Court retains jurisdiction to modify the portion of this Order relating to the assignment of the Participant's account balance under the 401 (k) Plan for the purpose of ensuring its status as a qualified domestic relations order within the meaning of Section 414(p) of the Code and Section 206(d) of the Employee Retirement Income Security Act of 1974, SIGNED this )~ day of , 2003. as amended. . Respondent - 4 - Jq ii},r.',-", L' -"lildiliiillti!i.iB "."'ei -~;,., ".~-'--,.--",..", -.;'... ~".< , ,'""i:<." ~.~ ......... -&' -,,-/., ~''';L'. '0' ,",(1- _,'---<, ,,>'.' .1 ~< ,~'" _ ,~._=_="",,,,,~,'''''''''"'''," C".".. '~li' ^..... V . ",,",,--w__,< ""'. , ,~ , ViNW\1J-SNN3d \" '(,,~-,-. I, :--'1 '""r-"~jn,", ' _Li\, '.'~,;,) :. :i:':-:-.(!!r\r Ii"; ~ C'" ~Tl '. L.,.< J 'I' n.... " d-'~ 1'0 ::- oJ::> ,;, } l'\ i I ,r,:.:, ",:.<' ! :",__:,,~ :::_~) _1("\ \0 7.1,.....,j >',,'i ;""""'-".., ..~, J.J.. J\.) :J8d:!O."O:nl:d .~ ~"""" ~, '"' ,.- ,', ,,~ . '. , " ~..~ ,_ 'T' I,,, , .. ,,-- '." .h',," -~ i;~ . ,; 'n ~;:" . A._, W' . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW In the Matter of the Marriage of: RANDALL S. GRASSMYER Plaintiff v. NO. 01-02452 civil Term ELIZABETH L. GRASSMYER Defendant In Divorce PETITION FOR ENFORCEMENT OF PROPERTY' SEPARATION AGREEMENT Petitioner, ELIZABETH L. GRASSMYER, by and through her attorney, M. Lucile Longo, Esq., hereby files this Petition and avers in support thereof as follows: 1. Petitioner is ELIZABETH L. GRASSMYER, Defendant in the above-captioned action, who currently resides at 98 st. John's Road, Camp Hill, PA l70ll. 2. Respondent is RANDALL S. GRASSMYER, Plaintiff in the above-captioned action, who currently resides at 1459 Hillcrest Drive, Apt. 509, Camp Hill, PA 170ll. 3. The parties entered into a Property & Separation Agreement resolving all of their equitable distribution issues. That Agreement is dated August 4, 2000, a copy of which is attached hereto and made a part hereof as Exhibit "A". 4. Pursuant to the terms of the Property & Separation Agreement, Page 3, Plaintiff was required to reimburse wife the sum of $500.00 per month for Husband's share of the mortgage on the marital residence on the first day of each month until Alexander's l8th birthday. Alexander is now lO years old. Respondent stopped 30 . i ~ ~. ~I ;-, ,_,~ 1 . . c o . said reimbursements on 12/l/2003. 5. Pursuant to the terms of the Agreement, Respondent was responsible for payment to Wife for any damages including court costs and attorney's fees if any provision in the Property & Separation Agreement was breached. 6. Petitioner has incurred counsel fees in the preparation and filing of this Petition due to Defendant's breach of the Property & Separation Agreement. WHEREFORE, Petitioner requests your Honorable Court to enter an Order: A. ordering Respondent to pay to Petitioner the sum of $500.00 immediately and to continue said payments as required by the Property & Separation Agreement. B. ordering Respondent to pay. counsel fees in connection with this Petition pursuant to the Breach provision of the Property and Separation Agreement. And for such other relief as the Court deems appropriate. 67907 ~I " '': ,v , '.J""" -~ '"'"'-~"~'1;" .. o o . PROPERTY AND SEPARATION AGREEMENT -I'J..; THIS AGREEMENT made?l day of 11/1 GtlST by and between ELIZABETH L. GRASSMYER of 98 st. John's Hill PA, (hereinafter referred to as "WIFE"); AND RANDALL S. GRASSMYER of 98 st. John's Rd., Camp Hill, PA, (hereinafter referred to as "HUSBAND"); WHEREAS, the parties were married on October 27, 1990, and there has been one child born of this marriage, ALEXANDER, born November 15, 1993. WHEREAS, the parties hereto are contemplating separation; and WHEREAS, the parties hereto are desirous of settling fully and finally their respective financial and property rights and obligations as between each other including, without limitation by specification, the settling of all matters between them related 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 or maintenance of WIFE , 2009 Rd., Camp by HUSBAND or of HUSBAND by WIFE; and WHEREAS, both parties agree to relinquish any and all claims which either may have against any property now owned or belonging to the other or which may hereafter be acquired by either of them by purchase, gift, devise, bequest, inheritance otherwise, except as to the obligations, covenants and agreements contained herein; NOW, THEREFORE, the parties intending to be legally bound hereby do covenant and agree that: SEPARATION: It shall be lawful for each party at all times hereafter to live separate and apart from the other party at such place as he or she may from time to time choose or deem fit. The - 1 - ~~ . " " ,---- '''~,.]'a' 0""'_ ;"",",., - i,o""',,,,' <.,,--, _" ;,,' .' o . . foregoing provisions shall not be taken as an admission of the lawfulness or unlawfulness of the causes leading to their living apart. INTERFERENCE: Each party shall be free from interference, authority, and contact by the other as fully as if he or she were single and unmarried except as may be necessary to carry out the provisions of this Agreement. Neither party shall molest the other or attempt to endeavor to molest the other, nor compel the other to cohabit with the other, or in any way harass or malign the other, nor in any way interfere with the peaceful existence, separate and apart from the other and each of the parties hereto completely understand and agree that neither shall do or say anything to the child of the parties at any time which might in any way influence the child adversely against the other party. DESIRE OF THE. PARTIES: It is the desire of the parties, after long and careful consideration, to amicably adjust, compromise and settle all property rights and all rights in or against each other's property or estate, including property heretofore or subsequently acquired by either party, and to settle all disputes existing between them, including any and all claims for WIFE'S and/or HUSBAND'S maintenance and/or for his/her support, alimony, counsel fees and costs, custody and equitable distribution. DIVISION OF PERSONAL PROPERTY: The parties have divided between them, to their mutual satisfaction, the personal effects, household furniture and furnishings and all other articles of personal property which have heretofore been used by them in common, and neither party will make any claims to any such items which are now in the possession or under the control of the other. Should it become necessary, the parties each agree to sign any titles or documents necessary to give effect to this paragraph upon request. INTANGIBLE PERSONAL PROPERTY: accounts in the joint names of WIFE All savings and checking and HUSBAND have been closed - 2 - ~ '"" ~ ...1."{ -,'; <' < ~ .Jk: -" c A "'" and the funds deposited therein withdrawn and divided between the parties heretofore. All such accounts and items of intangible prope'rty in the individual name of WIFE, and HUSBAND shall remain the s'eparate property of each, independent of claims or rights of the other, and each does hereby specifically waive, release, renounce and forever abandon whatever claims, if any, he or she may have with respect to those items in the possession of the other. ALIMONY. ALIMONY PENDENTE LITE. SUPPORT AND MAINTENANCE: WIFE acknowledges that by this Agreement, she has respectively secured and maintained a substantial and adequate fund from which to provide herself sufficient financial resources to provide for her comfort, maintenance and support in the station of life for which she is accustomed. WIFE specifically waives, releases and gives up any rights she has against HUSBAND for alimony, alimony pendente lite, support or maintenance. HUSBAND and WIFE acknowledge that WIFE is waiving any claim for alimony in return for HUSBAND'S agreement to reimburse WIFE the sum of $500.000 per month for HUSBAND'S share of the mortgage on the marital residence. HUSBAND shall pay to WIFE the aforesaid sum of $500.00 on the first day of each month beginning on August l, 2000 and continuing on the first day of each month until ALEXANDER reaches the age of 18. The aforesaid payment due to WIFE shall continue regardless of whether or not WIFE chooses to pay the mortgage in full at some time in the future. WIFE specifically waives, release, and gives up any right to alimony pursuant to Chapter 5, 23 P.S. Sec. 50l of the Divorce Code of the Commonwealth of Pennsylvania, Act of April 2, 1980, as amended. REAL ESTATE: The parties are owners of real estate situate at 98 st. John's Road, Camp Hill, PA. Said property shall become the sole and absolute property of WIFE, and HUSBAND agrees to execute a Deed conveying such title to WIFE, subject to mortgages, covenants, and restrictions of record if any. WIFE agrees to - 3 - ?JLr :~ - ~ . ~ " "" . .1 ,.;. ,.~ "~ ~, - ~',,, """'~1:_ o .8 v assume liability for any mortgages and agrees to indemnify and hold HUSBAND harmless from any liability, loss, expense and claims, including court costs and attorney's fees incurred by HUSBAND should HUSBAND have to pay on any mortgage and bond or defend against any payment thereon. The assumption and indemnification called for herein includes both the first and second mortgages. INTENDED TAX RESULT AND INDEMNIFICATION: By this Agreement, the parties have intended to effectuate and by this Agreement have equally divided their marital property. The parties have determined that such equal division conforms to a right and just standard with regard to the rights of each party. The division of existing marital property is not, except as may be otherwise expressly provided herein, intended by the parties to constitute in any way a sale or exchange of assets. As part of the equal division of the marital property and marital settlement contained herein, the parties agree to save and hold each other harmless from all income taxes assessed against the other resulting from the division of the property herein provided. BANKRUPTCY OR REORGANIZATION PROCEEDINGS: In the event that either party becomes a debtor in any bankruptcy or financial reorgani~ation proceedings of any kind while any obligations remained to be performed by that party for the benefit of the other party, pursuant to the provisions of this Agreement, the debtor/spouse hereby waives, releases and relinquishes any right to claim any exemption (whether granted under state or federal law) to any property remaining in the debtor as a defense to any claim made pursuant hereto by the creditor/spouse, and the debtor/spouse hereby transfers, assigns and conveys to the creditor/spouse an interest in all of the debtor's exempt property sufficient to meet all obligations to the creditor/spouse as set forth herein, including any obligations for attorneys' fees and costs incurred in the endorsement of this paragraph or any other provision of this Agreement. No obligation created by this Agreement shall be - 4 - ~s- - " . ~ ~ - - " , ~, -~ "'. _ h " c o .- dischargeable regardless of federal or state law to the contrary, and each party waives any and all right to assert that any obligation hereunder is discharged or dischargeable. DEBTS: HUSBAND and WIFE represent and warrant to each other that neither one has contracted any debt or debts, charges or liabilities whatsoever, for which the other party or their property or their estates shall or may be or become liable or answerable, and they covenant that they will at all times keep each other free, harmless and indemnified against and from any and all debts and liability heretofore or hereafter contracted or incurred by either of them, except as expressly provided in this Agreement. HUSBAND agrees to be solely responsible for the following debts and obligations of HUSBAND and WIFE incurred prior to the signing of this Agreement as follows: l. Sears charge accounts; one in the name of HUSBAND and one in the name of WIFE. 2. Keystone oil bill - $69.60 3. Electric bill - $ll9.89 4. Telephone bill - $175.69 5. 1999 per capita tax - $83.50 6. Sewer/Refuse bill - $l45.20 7. Lease payments for WIFE'S vehicle for the months of June, JUly, August and September. The total amounts due for June and July - $696.89 shall be paid within seven days of the execution of this Agreement. 8. Master Card with Navy Federal Credit union with approximate balance of $7,000.00. WIFE shall reimburse HUSBAND the sum of $2,000.00 for WIFE'S share of said debt. WIFE shall pay to HUSBAND the sum of $40.00 per month until said sum is paid in full. Said payments shall commence on January 1, 2001. - 5 - % ~- - ~ "' , "-'," '~, ~- - "-- ",-'. ~ o o WIFE agrees to be solely responsible for the following debts and obligations of HUSBAND and WIFE incurred prior to the signing of this Agreement as follows: 1. Bon Ton VEHICLES: The 1998 Toyota Camry shall become the sole and absolute property of WIFE, and HUSBAND shall make no claim of ownership thereto. The 1995 Volvo shall become the sole and absolute property of HUSBAND, and WIFE shall make no claims of ownership thereto. HUSBAND agrees to assume any liens or encumbrances on said vehicle. STOCK FUND: HUSBAND has an investment stock fund with his employer administered by Salomon smith Barney with an approximate value of $2,900.00. Said account shall become the sole and absolute property of HUSBAND, and WIFE waives any claims thereto. PENSION AND PROFIT SHARING PLANS: HUSBAND specifically agrees that WIFE'S pension and profit sharing plans with her employer are the sole and absolute property of WIFE, and HUSBAND is voluntarily giving up all claims to said plans under the equitable property provisions of the Pennsylvania Divorce Code, as well as all rights under Federal ERISA laws. WIFE specifically agrees that HUSBAND'S pension and profit sharing plans with his employer are the sole and absolute property of HUSBAND, and WIFE is voluntarily giving up all claims to said plans under the equitable property provisions of the Pennsylvania Divorce Code, as well as all rights under the Federal ERISA laws. HUSBAND shall pay to WIFE the sum of $20,000.00 for WIFE'S shall in HUSBAND'S pension/Incentive Plan with Sysco corporation. Said sum of $20,000.00 plus all investment earnings and losses on said funds with Sysco Corporation savings and Incentive Plan (SIP) earned after the signing of this agreement shall be transferred to WIFE immediately after the parties are divorced. WIFE agrees to prepare any and all documents necessary, including a Qualified Domestic Relations order, to transfer the aforesaid funds to WIFE. - 6 - 37 ","" ~ ._~ c I', <., " ,~.; ~ ,'~-.. ~, >.,' ^"" mi'ii!)J~'" o " HUSBr,.ND agrees to file "No Fault" divorce proceeds and finalize said! Divorce within three years of the date of the signing of this agre~ment. HUSBAND further agrees not to dissipate or borrow funds from the Sysco Corporation Savings and Incentive Plan so as to reduce benefits owed to WIFE pursuant to this agreement. HEALTH INSURANCE: HUSBAND agrees to maintain major medical and hQspitalization insurance on WIFE for a period of three years from the date of the execution of this Agreement. CUSTODY: The parties shall have shared legal custody of ALEXANDER so that each shall participate in major decisions affecting the best interests of said child including, but not limited to, medical, religious and educational decisions and each parent shall have access to medical, dental and school records. Mother will have primary physical custody of ALEXANDER; Father will have partial physical custody on alternate weekends from Friday at 6:00 pm until Sunday at 5:00 pm; every Wednesday from 6:00 pm until 8:00 pm; The parties shall alternate the five major holidays, i.e., Labor Day, Thanksgiving, Easter, Memorial Day and 4th of July; Christmas from December 24th at noon to December 25th at 2:00 pm with Mother every year. From December 25th at 2:00 pm to December 26th at 2:00 pm with Father. Two weeks vacation with each parent with thirty (30) days notice to other parent. CHILD SUPPORT: HUSBAND agrees to pay $lOO. 00 per week for the support of ALEXANDER until he reaches the age of l8 or is emancipated. HUSBAND further agrees to maintain major medical and hospitalization insurance on said child. HUSBAND further agrees to be responsible for all unreimbursed dental and medical expenses incurred on behalf of said minor. HIGHER EDUCATION: HUSBAND acknowledges that the parties have planned that higher education shall be made available for their child should he qualify for formal education beyond high school. HUSBAND agrees that should their child qualify for formal education - 7 - j8 ,!~ " Co,' ,'-" ."'''",' ',' -,.:; c o beyond high school, HUSBAND shall pay 75% of all tuition, board, books and other incidentals for the benefit of said child attending such school. TAXES: The parties agree to file jointly all Federal, State and Local tax returns for the 2000 tax year. All tax liabilities shall be paid by HUSBAND. Any and all tax refunds shall be shared equally by the parties. LIFE INSURANCE: HUSBAND agrees that he will maintain WIFE as the beneficiary of both his Iowa Life Insurance policy with a face value of $150,000.00, as well as his policy with his current employer until his child is emancipated or completes college, whichever occurs last. HUSBAND agrees that he will not default on premium payments or borrow on said policies or in any way reduce the value so as to provide fewer benefits for WIFE. WIFE agrees that she will maintain HUSBAND as the beneficiary of her Iowa Life Insurance policy until the parties' child has attained the age of l8. HUSBAND shall pay all premiums for the aforesaid policy until ALEXANDER reaches the age of 18. MUTUAL RELEASE: Subject to the provisions of this Agreement, each party has released and discharged, and by this Agreement does for himself or herself, and his or her heirs, legal representatives, executors, administrators and assigns, release and discharge the other of and from all causes of action, claims, rights or demands, whatsoever in law or equity, which either of the parties ever had or now has against the other, except any or all cause or causes of action for divorce and except any or all causes of action for breach of any provisions of this Agreement. WAIVER OF CLAIMS AGAINST ESTATES: Each party hereby releases and relinquishes any and all rights that he or she may now have or hereafter acquire as spouse under the present or future laws of any jurisdiction to share in the estate of the other party upon the latter's death and to act as executor or administrator of the other party's estate. This provision is intended to constitute a mutual - 8 - ~CJ ~.. "'->- , "'" -' " ";;' ',. ,-. , ".:...;. '-''''~@' - f'.~ o . waiver by the parties to take against the other's Last will under the present or future laws of any jurisdiction whatsoever. WAIVER OF CLAIMS: Each party accepts these provisions in lieu of and in full and final settlement and satisfaction of all claims and demands that each may now or hereafter have against the other for support and maintenance of himself or herself, for alimony, alimony pendente lite, counsel fees and expenses or for any provision for support and maintenance. DISCLOSURE: Each of the parties hereto agrees that he or she has made a full and complete disclosure to the other of all assets and liabilities whether joint or individual of each party and each party further acknowledges that he or she is satisfied that such complete disclosure has been made. DIVORCE PROCEEDINGS: The parties acknowledge that divorce proceedings under section 330l(c) of the Divorce Code, which encompasses a "No-Fault" divorce may be filed by either party in the future. If that contingency occurs, the parties agree that each will sign, execute and file any pleadings, affidavits and any other documents necessary to obtain a divorce. The parties further agree that neither shall request counseling as provided in said Divorce Code. EOUITABLE DISTRIBUTION: The parties agree that the provisions herein for the division of property, real and personal, are fair and reasonable and expressly in lieu of those which the parties could obtain through court action under the appropriate sections of the Divorce Code. Accordingly, other than as provided herein the parties mutually release each other, their heirs, assigns and legal representatives from any and all claims or causes of action, rights, or benefits under the Pennsylvania Divorce Code of 1980. VOLUNTARY EXECUTION: The parties declare that each has had a full and fair opportunity to obtain independent legal advice of counsel of his or her selection; that ELIZABETH L. GRASSMYER has been independently represented by counsel and that RANDALL S. - 9 - 4-0. - '~,. , - . . . , '~J,.;.;.kd'. /,.-.'~'J,,", "ti~f~f" . o o . GRASISMYER is cognizant of his right to legal representation, confirms that it is and has been his express, voluntary and knowing intention not to avail himself of the right to counsel. RANDALL S. GRAElISMYER further acknowledges that he chooses instead to represent hims'elf with respect to the preparation and execution of this Agreement. RANDALL S. GRASSMYER further declares that he is executing this Agreement freely and voluntarily, having obtained such knowledge and disclosure of the parties' respective assets, liabilities, legal rights and obligations and that RANDALL S. GRASSMYER acknowledges that this Agreement is fair and equitable and is not the result of any fraud, coercion, duress, undue influence or collusion. BlmACH: 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, and the party breaching this contract shall be responsible for payment of legal fees and costs incurred by the other in enforcing their rights under this Agreement, or seek such other remedies or relief as may be available to him or her. APPLICABLE LAW: This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania. ENTIRE AGREEMENT: This Agreement contains the entire understanding of the parties and there are no representations, warranties, covenants or undertakings other than those expressly set forth herein. MODIFICATION AND WAIVER: A modification or waiver of any of the provisions in this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. - 10 - 4-( " "'- " ~'" .-~" , f>ij" " - ,~- \0 o o ... EXECUTION OF DOCUMENTS: Each party, shall at the request of the other, execute, acknowledge and deliver any documents which may be reasonably necessary to give full effect to this Agreement. VOID CLAUSES: If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, 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 at full force, effect and operation. DESCRIPTIVE HEADINGS: The descriptive headings used herein are for convenience only. They shall have no effect whatsoever in determining the rights or obligations of the parties. IN WITNESS WHEREOF, and intending to be legally bound, the have hereunto set their hands and seals the day and year written. 44~r' - 11 - +2.. "'. ., '~. .,.,,' - -" ',-, --. k!!f , . c . . . . ) ) SS: ) On this 7' day of ,4tt~..., , 2000, before me, a Notary PUblic, the undersigned officer, personally appeared ELIZABETH L. GRASSMYER, known to me or subsequently proven to be the person whose name is subscribed to the within instrument and acknowledged that she executed the same for the purposes therein contained. COMMONWEALTH OF PENNSYLVANIA Cu.m be.rla..f'\ct COUNTY OF J..lme1.",d~R IN WITNESS WHEREOF I have hereunto set my hand and notarial seal. ~r.~ Notary Public My commission expires: NOTARIAL SE/\L ROBERTA E. BIESECKER, Notary Public Camp Hill 80ro. Cumberland County My Commission Expires July 23, ~al ) ) SS: ) On this ~ day of AtlEYtur , 2000, before me, a Notary Public, the undersigned officer, personally appeared RANDALL S. GRASSMYER known to me or subsequently proven to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein contained. COMMONWEALTH OF PENNSYLVANIA c..u.r'YIber(CllFlc! COUNTY OF ~NeA3YE~ IN WITNESS WHEREOF I have hereunto set my hand and notarial seal. ~[~ Notary Public My commission expires: NOTARIAL SEAL ROBERTA E. BIESECKER, Notary Public Camp Hill BOlO, Cumberland County My Commission Expires -.lo01 . - 12 - ~ ~~~llIL.~;i;,h..t'''''''t!>~';';--'ib''"i>\\I,''~'''f-/;~;-~~llirllJ'id<'iiWiW~.f1J'''''iH#e'h;:,;';""*".,"":,,",,h,;"""',d'i''''''',,"~~~ -. )' -"""-'~W.rllid.B___.Mt:~~- O.i.... I;. c_ J . . .. (") ....., = 0 ~~: c-; "n ~ 0 -I r'1 :c n m:D r -om cr. ::ocr ~u --0 I'i :1.:- O:2J -.r) Z r0 OlT! --I -I ~- -< c- 5J 1'0 -< ~. ^ . . '"' ~J," __ __,., " __ <, ' . '\if_ . c . DEe 17 2003 ~/. ~ . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW In the Matter of the Marriage of: RANDALL S. GRASSMYER Plaintiff v. NO. 01-02452 civil Term ELIZABETH L. GRASSMYER Defendant In Divorce ",ORDER AND NOW, this~day Of~ consideration of the within Petition, A RULE IS 2003, upon ISSUED upon Respondent, RANDALL S. GRASSMYER, to show cause why the prayer in the petition should not be granted. J RULE RETURNABLE at a hearing scheduled the / ;7W day of .u-~r1'j,._/ , 200'1 at q; 1dJJ-.m. in Courtroom # 3 of the Cu berland county courthous:, One Courthouse Square, Carlisle, PA l70l3. BY HE COURT: ATTEST: l+t ~.~!'iiMi\j<!il~~io\J""'''i,\€;0.!,-,'''J:t'Mli<~iill~!<t,@!;IWiil~fi;,#.';~i;';'''f'K'''-.l-.'fk'~""1;:1I1<wWiii8\i*~~'" ':"'~~i:i. . ^ tJii,!'_,I,"'l !(,',I' I'''' ,1'1'-1'-";\ I/\');\l\l~.~d . .. "-.r-'-, - '" .'.-'lJ 1:) '\ ~ ,\!i I. ,-, . .',"' ,:"_:(:1! r , ....~ " . ,-' '-" ' " ".i..' ;'_c '/ I 92 :5 1~\1 B I :.n0 (oUt A1:NlONOH1OHd 3Hl:lO 301:HO-{J311:l '-~, ,,~~~~,- ~ ">"'~"="~"'~"- .~ ,-,~. ~. ". J!j!lf'^ , ~ 0' ~. 11\ o . t . o MARIA P. COGNETTI & ASSOCIATES MARIA P. COGNETTI, ESQUIRE Attorney I.D. No. 27914 210 Grandview Avenue, Suite 102 Camp Hill, PA 17011 Telephone No. (717) 909-4060 Attorneys for DefendantJRespondent ELIZABETH Z. GRASSMYER, Plaintiff/Petitioner v. RANDALL S. GRASSMYER, Defendant /Respondent -- . .~" - ~. , ~'''';: o : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-02452 CIVIL TERM : CIVIL ACTION - LAW : IN DIVORCE NOTICE TO PLEAD TO: ELIZABETH Z. GRASSMYER c/o Lucile Longo, Esquire HONAMAN, LONGO & SEAMAN, LLP 15 North Lime Street Lancaster, P A 17602 You are hereby notified to file a written response to the enclosed Answer and Counterclaim to Petition for Enforcement of Property and Separation Agreement within twenty (20) days from service hereof or a judgment may be entered against you. Date: February 3, 2004 MARIA P. COGNETTI & ASSOCIATES By: 210 Grandview Avenue, Suite 102 Camp Hill, PA l70ll Telephone No. (717) 909-4060 Attorney for DefendantlRespondent Ltb -" .~,~- , __. _,_ ,-,-;-",":.~_., .,' "'._ ~'_ "",_".' _",___ ~"--"T"'l<-"')-L'";-" o o MARIA P. COGNETTI & ASSOCIATES MARIA P. COGNETTI, ESQillRE Attorney I.D. No. 27914 210 Grandview A veriue, Suite 102 Camp Hill, PA 17011 Telephone No. (717) 909-4060 Attorneys for DefendantlRespondent ELIZABETH Z. GRASSMYER, Plaintiff/Petitioner : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 01-02452 CIVIL TERM RANDALL S. GRASSMYER, Defundant/Respondent : CIVIL ACTION - LAW : IN DIVORCE ANSWER AND COUNTERCLAIM TO PETITION FOR.ENFORCEMENT OF PROPERTY AND SEPARATION AGREEMENT AND NOW, comes Respondent, Randall S. Grassmyer, by and through his attomey, Maria P. Cognetti, Esquire, and files the following Answer and Counterclaim to Petition for Enforcement of Property and Separation Agreement and in support thereof avers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. A?mitted in part; denied in part. It is admitted that Respondent was required to pay Petitioner the sum of $500.00 per month. This was to terminate on the 18th birthday of the parties' son. Respondent not only paid $500 per month but, in fact, paid anywhere from $732 to $768 each and every month from August, 2000 through August, 2003. From August, 2003 forward Respondent had begun to pay $500 per month. On or about October 1,2003 Petitioner filed for increased child support. Since Respondent had ---...."',-,,- l{~ _ _ ,_ ~.w ' " _ _, " ~- , - o o always understood this portion of the Agreement to have been additional child support (in addition to the paragraph entitled "child support") he was confused by Petitioner's actions. Not receiving an .explanation, he then stopped making payments in December, 2003. At such time as Respondent stopped making these payments he had overpaid this obligation by $7,275.33, as further delineated hereinbelow. 5. Denied. It is specifically denied that Respondent has breached the Agreement, therefore, Petitioner is not entitled to damages. 6. Denied. It is specifically denied that Petitioner has incurred counsel fees due to Respondent's breach of the Property and Separation Agreement. WHEREFORE, Respondent requests this Honorable Court deny Petitioner's Petition. COUNTERCLAIM 7. Paragraphs I through 6 of Petitioner's Petition for Enforcement of Property and Separation Agreement and Respondent's Answers thereto are incorporated herein by reference thereto. 8. Pursuant to the terms ofthe parties' Property and Separation Agreement, Page 3, Section e.ntitled Alimony, Alimony Pendente Lite, Support and Maintenance, Respondent was to pay Petitioner the sum of $500.00 per month for Respondent's share of the mortgage on .the marital residence. This reimbursement was to continue until the parties' minor child turned 18 years old regardless of whether or not the mortgage was paid off prior to the child's 18th birthday. ~~ -~',,"'- ~- . -,! 'I 1 rn '-1'1 ,., " ,,~n _~" '___~' "'"_, ",n" ~, ~ ,- -- "'-"'1 <<) .' , 9. At the time the parties' executed their Property and Separation Agreement, it was their intention that Respondent's contribution to the mortgage was in fact a part of his child support. Respondent's obligation under this paragraph was taken into account in determining his further child support obligation under the paragraph entitled "Child Support." Under the Agreement, Respondent's child support obligation was only set at $100.00 per week by the Agreement because it was the parties' intention that Respondent's contributions to the mortgage payment were in fact child support. 10. Petitioner was represented by Honaman Longo & Seamans, in the parties' divorce action. Respondent was unrepresented. II. Pursuant to the terms of the parties' Agreement, Respondent's child support obligation was only set at $100.00 per week because the parties' had consciously intended to consider Respondent's "mortgage contribution" as child support. As evidence of this intent, the parties' Agreement calls for the "mortgage contribution" to continue until the parties' son, Alexander, reaches 18, the legal age at which child support would cease. Pursuant to the agreement, the only condition upon which these payments would stop is Alexander's 18th birthday. 12. It is clear from the Agreement that Petitioner received approximately eighty percent of the parties' marital assets. Therefore, the "mortgage contributions" could not be considered a fOrm of equitable distribution because Petitioner would then receive almost one hundred percent of the parties' marital assets. 13. Pursuant to the terms of the parties' Property and Separation Agreement, Page 3, Section entitled Alimony, Alimony Pendente Lite, Support and Maintenance, Lf~ . - ,_'" " . ;..' '"-"~ ,.-,~." --~ ~ ~- ,. "'~'L'__c""","~ '-,,> , _, ".",:: c . Petitioner specifically waived alimony, so it is clear that the payments were not intended to be alimony payments to Petitioner. 14. Respondent executed the Agreement with the express understanding that the "mortgage contribution" payments were part of his child support obligation to Petitioner. 15. As stated in his Answer above, Respondent grossly overpaid Petitioner from December 1, 2000 to August 1, 2003. Specifically: a , In December, 2000, the Agreement called for Respondent to pay $500.00. Respondent actually paid $732.35. This was an overpayment of $232.35. b. From January 1,2001 to December 31, 2001, the Agreement call for Respondent to pay $500.00 per month for a total of $6,000.00. Respondent actually paid various amounts each month that year ranging from $732.35 to $768.00 for a total of$8916.12. This was an overpayment of2,916.12. c. From January 1,2002 to December 31, 2002, the Agreement call for Respondent to pay $500.00 per month for a total of $6,000.00. Respondent actually made ten payments of $754.74 and two payments of $733.42 for a totalof$8259.50. This was an overpayment of2,259.50. d. From January 1, 2003 to November 30,2003, the Agreement call for Respondent to pay $500.00 per month for a total of$5,500.00. Respondent actually made eight payments of $733.42 and three payments of $500.00 for a totalof$7367.36. This was an overpayment of$I,867.36. 16. Over a 36 month period, Respondent had overpaid Petitioner a total of 1m TL - '",. '., ~". ~. --~, .... """''' ' ..~","~ -,_~, .,,'w-'- - O_,^,',. . -",,"'" """ "~'''' 'il.;.1='-',,~ ~. e . $7,275.33. 17. Respondent believes, and therefore avers, that he should receive a credit in the amount of $7,275.33 for the overpayments made for and towards his obligations under the Property and Separation Agreement. 18. Pursuant to the terms of the parties' Property and Separation Agreement, Page 5, section entitled Debts, Petitioner was to reimburse Respondent the sum of $2,000.00 for and towards her share of the Navy Federal Credit Union MasterCard debt. 19. Under said section, Petitioner was to pay Respondent the sum of $40.00 per month begiuning January I, 2001 until the said debt was paid in full. 20. Petitioner has made no such payments to Respondent against said debt. As of the date of the filing of this Answer and Counterclaim, Petitioner is behind in her payments to Respondent by the sum of $1 ,480.00. 21. Petitioner has willfully failed to comply with the terms of the parties' Property and Separation Agreement dated August 4, 2000. 22. Petitioner has the ability to comply with the relevant portions of the Agreement but has failed to do so. 23. Pursuant to 23 Pa. C.S.A. s3105(a), "[a] party to an agreement regarding matters within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement." 24. Pursuant to 23 Pa. C.SA s3502(e): f5b ~ ,~". ~ r.~'. o . If, at any time, a party has failed to comply with an order of equitable distribution, as provided for in this chapter or with the terms of an agreement as entered into between the parties, after hearing, the court may, in addition to any other remedy available under this part, in order to effect compliance with its order: (l) enter judgement; (2) authorize the taking and seizure of the goods and chattels and collection of the rents and profits of the real and personal, tangible and intangible, property of the party; (3) award interest on unpaid installments; (4) order and direct the transfer or sale of any property required in order to comply with the court's order; (5) require security to ensure future payments in compliance with the court's order; (6) issue attachment proceedings, directed to the sheriff or other proper officer of the county, directing that the person named as having failed to comply with the court order, be brought before the court at such time as the court may direct. If the court finds, after hearing, that the person willfully failed to comply with the court order, they may deem the person in civil contempt of court and, in its discretion, make an appropriate order, including, but not limited to, commitment of the person to the county jail for a period not to exceed 6 months; (7) award counsel fees and costs; (8) attach wages; or (9) find the party in contempt. 25. Pursuant to 23 Pa.C.S.A. S3105, the court may impose any or all of the above sanctions on Petitioner if it finds that Petitioner willfully failed to comply with the terms of the parties' Property and Separation Agreement. -. ,'-^ ,-,,",~ .,^, ,,_e. ~'~_~' \ 51 . " .- , ~-;,-- "-' ,-' ,,'-~"__;i' "-n 0,,-,',;,';;' ,-_,,,__,~,_,H_ ,_._, ,--"~~,-,,,,_);.;,,~?:__,<,,_'>,,"-'_"""'';;' '_",U","~'" (.{,,-'_ ""_ '__~, . . 26. Petitioner has been and continues to be able to make full payment with respect to the Agreement but fails to do SO. 27. Respondent believes, and therefore avers, that the following sanctions should be imposed upon Petitioner: A. Authorization to seize the tangible and intangible property of Petitioner; B. Authorization to transfer and/or sell any property required in order comply with the Property and Separation Agreement; C. Award interest on the unpaid installments; D. Award Respondent counsel fees and costs associated with the necessity of bringing the instant action; and E. Find that Petitioner willfully failed to comply with the terms of the Property and Separation Agreement and find her in contempt. 28. Petitioner's conduct is in direct violation ofthe parties' Property and Separation Agreement. 29. Respondent believes, and therefore avers, that Petitioner has no intention of paying him pursuant to their Agreement. 30. Respondent believes, and therefore avers, that he should be given an additional credit in the amount of $2000.00 in lieu of Petitioner's payments pursuant to the agreement. 31. Respondent believes, and therefore avers, that he should be given a total credit of $9275.33, which is comprised of his "mortgage contribution" credit of$7275.33 5J IT "Co, ~ '" - 'L ',-" . ,. ."''''''AA~ -,.'--, ~",~-'-'O'c,:,", ','_I ,"".'><__' ,:_,":"d "Y';';""~""""" l-,'~__"'''_'':_;_._ "','__ . . and a credit for the total monies due him from Petitioner in the amount of $2000.00. 32. Respondent believes, and therefore avers, that his credit should be in the form of a suspension of the payments due Petitioner under the terms of the Agreement until the credit has been used in full. 33. Respondent believes, and therefore avers, that his payments pursuant to the Property and Separation Agreement should be suspended from December 1,2003 through May 31, 2005. 34. By suspending Respondent's payments from December 1, 2003 through May 31,2005 will utilize $9,000.00 of the credit due Respondent. 35. Respondent believes and therefore avers that his payment due June 1, 2005 shall be reduced by $275.33 which would utilize the remainder of the credit, thereby making his payment due June 1,2005 equal to the sum of $224.67. 36. Pursuant to the terms of the parties' Property and Separation Agreement, Page 10, section entitled Breach, "if either party breaches any provision ofthis Agreement, the other party shall have the right, at his or her election, to sue for damages for such breach, and the party breaching this Agreement shall be responsible for payment of legal fees and costs incurred by the other in enforcing their rights under this Agreement, or seek such other remedies or relief as may be available to him or her." 3 7. As a result of Petitioner's breach of the Agreement, Respondent has been put to considerable expense in pursuit of his rights under the Agreement. 38. Respondent has expended approximately $1000.00 in pursuit of his rights under the terms of the parties' Property and Separation Agreement. 6~ "- _ ,,=, -, '''"'---,-,~,,, "'~ ,O~ .;~ <'" ,<,";rt-- '-"-k'~'=-"~-~"',''''O'._,,_<__', '<_~"",:, o . 39. Respondent will continue to expend counsel fees to bring this matter to a closure and is entitled to any additional fees he may expend through that time. WHEREFORE, Respondent respectfully requests this Honorable Court: A. Determine that Respondent's mortgage contributions under the terms of the parties' agreement were in fact child support; B. Issue Respondent a credit in the amount of $7,275.33 towards his obligations to Petitioner for her mortgage payment; C. Issue Respondent a credit of$2000.00 for Petitioner's failure to make payments required under the terms of the parties' Agreement; D. Suspend Respondent's payments from December I, 2003 through May 31, 2005; E. Direct that Respondent's payment for June I, 2005 be in the amount of $224.67; F. Direct Petitioner to pay Respondent's counsel fees within thirty days of the signing of an Order in this matter. Said counsel fees to be in an amount directly related to the amount of counsel fees expended by Respondent at the time said Order is entered; G. Authorize the seizure of the tangible and intangible property of Petitioner; H. Authorize the transfer and/or sale of property required in order to have Petitioner comply with the parties' Property and Separation Agreement; 1. Award Respondent interest on the sum of$I,480.00 from the time said payments were due; 6tf -" ' .'N' " ", ~ ,__'_C<>'","'__~_",.>_ _ . ,- ,".,)'--~'_" r,,-,>. ~l,~>,+,~,"-",,:.,,'--"'--~l'-,'>- '_,~" _""_\' o . 1. Find that Petitioner willfully failed to comply with the terms of the parties' Post-Nuptial Agreement and find her in contempt; and K. Any and all such relief as the Court deems equitable and just. Respectfully Submitted: MARIA P. COGNETTI & ASSOCIATES Date: February 3, 2004 By: Attorney for Defendant/Respondent 5~ =. -,,-, '.~' , ',,; : ~I 4 =-<,;- ,,- "h" --,. ~',." '."",i_,', :i-:~, ",~,", <: -~-., ;,,-,~-~-, -.=,i}. -"'-ii'-'-,~;t,,::.~---- . . VERtFICATION I, RANDALL S, GRASSMYER, hereby verify and state that the facts set forth in the foregoing document are true and correct to the best or my infonnation, knowledge and belief. I understa:o,d that false statements herein are made subject to the penalties of 18 Pa. C.S.A. ~4904 relating to unsworn verincation to authorities. ~ ~ RANPALLS.G~ DATE: fl/3/cr1 ., . , ..;~, s. " 90 "'-<.ff' ""'~ -~" ,,-"-'~ ' ,.--__'_'r"'" -, ~n' .".""",~ "~,",h";H',-\..",lt_{_'l-"",-,, - '"';'"~,, ,-, _ -""-",,-,',, ~~I-~:,",' ~I';/ --,-;y "'-"'J'1%{", . . CERTIFICATE OF SERVICE I, Maria P. Cognetti, Esquire, Attorney for Defendant/Respondent herein, do hereby certify that on this date I served the foregoing Answer and Counterclaim to Petition For Enforcement Of Property And Separation Agreement by depositing a true and exact copy thereof in the United States mail, first class, postage prepaid, addressed as follows: Lucile Longo, Esquire HONAMAN, LONGO & SEAMAN, LLP 15 North Lime Street Lancaster, P A 17602 MARIA P. COGNETTI & ASSOCIATES Date: February 3, 2004 By: MARIA P OGN I, ESQUIRE Attorney I.D. No. 27914 210 Grandview Avenue, Suite 102 CampHill,PA 17011 Telephone No. (717) 909-4060 Attorney for Defendant 51 'lli~~~*,Ji}lI'(.i)~__ '&l5!ii.1'''''''"'~ ~~"~><'"--"I~_ti:lli..f '-~'-'_i~~ol'-__e'-.Pi' r",~~',_",."",~ . _~~ . ,'_.0"'- """,,, <,'> "'",;"""~,""''-' _',,~r-,",~_, __ ".. ._ - ~~, -'~ ~,.i' . """""",,,_,_;;1- >,~_ :ur.1lt1sl ,,~.~ ~ - " - o ._' ,",,--"":" () C ~~~ r.:' ::'..c::. ~,-J ~~~ :z ::;2 ~ - <,," -";1 ~ = = .r- ....., g:; I .&:"' o " :r:!J rn,- :Em ~6 :r", 0::0 20 Om 0-1 ?ii -< " :r w .c- o \r ~ '--_,'. , __,,, " "'.~- '''_~ . _","' -"",.;';;-d-,-, '" c,.', ""~'''<>',~ '"k""C_L",J "i--'-~'.o-~ '-;c~";,1~'_~"","4;"._,,,,, . _ .," o . ELIZABETH Z. GRASSMYER, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 01-02452 CIVIL TERM RANDALL S. GRASSMYER, Defendant : CIVIL ACTION - LAW : IN DIVORCE ORDER AND NOW, to wit this ->>-~aY Of~, 2004, upon consideration of the fact that counsel for Defendant is unavailable for hearing on February II, 2004, due to medical issues, it is hereby ORDERED and DECREED that the hearing set for that date is continued to the . ~ S day of A~ ,2004 at /-' 30 AM/~n Courtroom # 3, Cumberland County Courthouse, One Courthouse Square, Carlisle, P A 17013-3387. BY THE COURT: fJ. 2-~- DLf C~~ ~.~ bJ. ~Uv P C!oU~~ /Vl, ~{lt-~ ~1 Jk 6~ ~-~"~;'-_~":i'I'ltJ&li'Wil;--Al' ;~:.i~~~Ww-~~;;'~ ,~~ ""'. ,"h~~,_) '''-' ,_"",,^,,~ _ '"' .,~-~..,,"""', ~ ,~ ,~~ -- ~ ~y --i'M' ,..,-, r;ko/:" Pro I~bn~ ~( ~~ 'j.MoY ~+l -~,~~ ~~ o - ~~ . ,~ .~ ._ ~,_ _J - " __ _ ,- - , ,- ~ <"~n - -,~, ..,,:"--," """,""""-"'--:';"",, --"''''i', o o ELIZABETH Z. GRASSMYER, Plaintiff/Petitioner : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 01-02452 CIVIL TERM RANDALL S. GRASSMYER, Defendant/Respondent : CIVIL ACTION - LAW : IN DIVORCE ORDER OF COURT AND NOW, TO WIT, this h/'" day of 2004, upon consideration of the within Answer and Counterclaim, Respondent's Counterclaim shall be heard at the sarne;'1: as petition~r,s original claim, which is currently scheduled for hearing on the ~ day Of~, 2004, a~O rn. in Courtroom No.3 of the Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania. BY THE COURT: J. . oL--G-rff ~ ~~. ~I-C~ P ~:~~~u, ~ IL u.-u~~ ~ v(f .~. :)k 5~ t,il-l'i'...,,"~ <"o~,_' ~11~ ~'""~"-~>~"'-i"""'<d l~!tIiilt'-'; o ~~,JA;)jt__,c'__' ,,','l',,",. ,~~ =,<, "'~ ,,_ ,~_"",,,,,~t,,_,,, .<, ',< ,"-,~'p_. ~___Y_ ll#l'""' ~- Mir'~~-['-~"",- '.0 \-I!'I\.I'"1' r,[. I.r; , \l1!\Yf\ !i\~ \!f\J:.jeJ ,\l~ln~r' n" ,-' '--..-"Ino ' It! I ' '-'" ol-:-""J'111 , "'_' "j-,-,' .'-'-";''1 00 : II ~IV 9- 81:1 ~noz Al:lV10NOHlOtid 3Hl :ID 30l:Ho-onJ ~I ~, . -"-, o --,- - ,.~ ~ -'.~- -~~. - '--,-<' '^' '-,"-'--- _"-'," ,'?A",~;-''iii;;:",.,-, ..,.,-,.7"~-;j> o o . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ELIZABETH Z. GRASSMYER v. NO. Ol-02452 Civil Term In Divorce RANDALL S. GRASSMYER ANSWER TO COUNTERCLAIM 7. No answer required. 8. Admitted. 9. Denied. At no time when the parties entered into their Property and Separation Agreement was it their intention that Husband's contribution towards the mortgage represented any portion of his child support obligation. The Agreement is clear. Respondent's attempts to introduce evidence regarding the parties intentions is a clear violation of the Parole Evidence Rule. lO. Admitted. ll. Denied. Paragraph 11 is a conclusion of law to which no response is required. In the event the Court considers any response to be necessary petitioner continues to maintain that the Agreement is clear and any testimony regarding the parties intentions would be a violation of the Parole Evidence Rule. l2. Denied. The Agreement does not specify what percentage of assets each party received. It is not up to the Court to rewrite an Agreement entered into by the parties. l3. No answer required. The Agreement speaks for itself. l4. Denied. The Agreement speaks for itself. l5. Denied. Any payments made by Respondent were made by him voluntarily. He took the mortgage statements and made the payments directly. This was his specific and unilateral action. - 1 - l!> - --, 'H ;<,,- -,=~ .-" -, -j "~,--,:;,,' --',," :,''',"~,,:( ;S,;-,",,,-,," ,k:-'i..'_,-'c,,'-__,"~,:- """' ~'i."i.:;' ,~~Vi:-~~ ,-~ -:~' ---:"> _ ,_ --'1':1 "j c . j Petitioner did not agree to any modification of the Property and Separation Agreement. Any such modification would have had to have been in writing. Respondent can not now claim that he should be entitled to credits for something that he did voluntarily without the agreement of Petitioner and he cannot unilaterally modify the Property and Separation Agreement. l6. Denied. Respondent is responsible for the monthly payment of $500.00 per month called for in the Agreement. l7. Denied. Respondent made no such overpayments and must be held to the obligations set forth in the Property and Separation Agreement. 18. Admitted. 19. Admitted. 20. Denied. Petitioner made payments to Respondent. At some point during the repayment process Respondent advised Petitioner that the debt was paid in full or in the alternative had been forgiven by Respondent. 21. Denied. 22. Denied. Petitioner at all times complied with the Agreement. 23. Paragraph 23 is a conclusion of law to which no response is required. 24. Paragraph 24 requires no response since it is a mere recitation of a statute. 25. No answer required. 26. Denied. Petitioner has no obligations with respect to the Agreement. Her payments have been forgiven or paid. 27. Paragraph 27 is a conclusion of law to which no response is required. 28. Denied. 29. Denied. Petitioner has made all payments required of her. 30. 3l. fully set Respondent is Respondent is forth above. not not entitled to any credits. entitled to any credits as is more - 2 - ~I ~ -' .,," .' ,~ ,.,,' ,,_,r ", ",_' ,_0 "",_.'"' ,- '-_',-",_ -,,'.;-"":"';';-_',-<' ,",,;,_ ~"__ '_._.;.,_"",,>_,_, -_, '""'~:;~O ,,',--- -\-l- ' " "'>'.~\~-( -, . . 32. Respondent is not entitled to any credits. 33. Respondent is not entitled to suspension of any payments since he is delinquent on the payments due and owing. 34. Respondent is delinquent in payment and should be held in contempt for failure to comply with the terms of the Property and Separation Agreement. 35. Respondent is delinquent in payment and should be held in contempt for failure to comply with the terms of the Property and Separation Agreement. 36. The Agreement speaks for itself. 37. No answer required. 38. Petitioner is without sufficient information or knowledge to form a belief as to the truth of this averment and proof thereof is demanded. 39. Denied. Proof demanded. WHEREFORE, Petitioner requests this Honorable Court dismiss the Counterclaim filed on behalf of Respondent. LO ,LO & , LLP l5 N. Lime Stree Lancaster, PA 17602 (717) 397-5127 Attorney ID #67907 Attorney for petitioner Date: j lc;J5 / ()Lj I I - 3 - (p.{ ,- - '~~.. ~-, "- "' .;..'",,-~ " -, L _~ . ",,,..-'- , -;_"",.1' -'- -4'",,,, " ~'_":u~-,c-,~,c,.i,.-_" -,', -, -:d"!.:;'_Ch';--C-. "';C,;"j,,;:-,^~:-, ~<i",~""G~,'-',:, "" . . ."'l;1 '"I . , ] d I I VERIFICATION i i 1 1 1 I '1 il DATE: .3 -Jr2-0f ., i 'oj 11 ;J 'I .1 'I '1 1 ~J~6,}-j )~ lJt/J~~jfV~ 11 Eliz eth z. a'ssmyer [I !j :'j [I " :1 ,I ,I I 1 I I ;j :.1 J 'I ;1 I :j the foregoing Answer to I understand that false I verify that the statements in Counterclaim are true and correct. statements herein are made subject to the penalties of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities. - 4 - ~~ -,.- , "-";}",:J;-",-,', -', ~'^ :.:--" ,..', 01 . -",' '''-~,;\.~-, ~.ol;'.i;.' o ~~__ ;;;;~) . . CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Answer to Counterclaim was served by first class mail, postage prepaid, addressed as follows: Maria P. Cognetti, Esquire 210 Grandview Avenue, Suite 102 Camp Hill, PA l7011 RESPECTFULLY SUBMITTED, DATE: .3/~.5 J 01 - 5 - (Pcf . ~~~ -.-":'---,,"' i\"oo..--:ili~~~~,~~A;- ~~\ ,; -'."',..~ .--"',,", ,1--" "..' " 0' ., __'.....:,,~...; ....;,,- o t () ...., C <= ~ <= -offi -"'" 0:1:Ti ~ :i! ~:ri ::0 m:rJ 2t---' :B.h1 ~)~~ N r""C" 0> o,g ~ .' .,., :i!,<,; zO :x ~~ :$".0 co.C: - em 2: .. -{ -j CIl ~ """ &" -< fS yr , "'-'" ~ ~ - ",,,,"--:1 .'c--- _ "," ( ~ o o RANDALL S. GRASSMYER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. Ol-2452 CIVIL TERM ELIZABETH L. GRASSMYER, Defendant IN DIVORCE IN RE: PETITION FOR ENFORCEMENT OF PROPERTY & MARITAL SETTLEMENT AGREEMENT ORDER OF COURT AND NOW, April 5, 2004, the parties having appeared in open court together with their respective counsel, and having submitted to the Court Exhibit A which shows husband's payment to the mortgage company beginning approximately August l, 2000, through August 1, 2003, which each party is in agreement as to the accuracy of the figures, and it further showing payments from husband to wife of $500.00 from September 1 through November 1, 2003, and no payment thereafter, the Court deems this sufficient to make a determination that no further evidence is necessary to establish the amounts paid. In regard to the counterclaim of the husband for repayment of the sum of $2000.00 on the Master Card with Navy credit, as contained on page 5 of the marital settlement agreement, and the wife having admitted that she has not made any payments as due under that, we find in favor of the husband's claim for such amount as may be due to this time. The Court will later reconcile that amount due in the final Order to be made in this case. The Court not having entertained any offer of testimony from either side on their intentions regarding the interpretation of the property and separation agreement, because the Court feels that the agreement is clear and concise and can (P6 ,: ~ - ~ . . o Grassmyer V Grassmyer Ol-2452 Civil Term Page 2 ,__ I. "~I ;,,;i.--~-' ~-? <~: ,_, o be interpreted without the need for parol evidence, the Court will decide as a question of law whether the husband shall get credit for excess payments made during the times in question or whether he will not get such credit. Each counsel, at their suggestion, will be given until close of business on Monday, April 19, 2004, to submit briefs on this particular question. Maria P. Cognetti, Esquire 210 Grandview Ave., suite l02 Camp Hill, Pa. 17011 For Randall Grassmyer M. Lucile Longo, Esquire 15 N. Lime Street Lancaster, Pa. l7602 For Elizabeth Grassmyer :mtf By the Court, .J. ~ Lt,- C ~() f Jlk '" 'li-:~ (pc, :i' . - '~~iii!~jiili~!J>M~m~~~~,f~Mi!b1,--"r.,iwi,~;"ii~";..< .ili.,<"",~.~o ;:,; : ,J. ~, ,:',~" ~f,.-,.,.,~ """c:r>'~ ,_,"""_,,,.,"1''''_'''''''' ''Si'" ~,_, ,"~' --']'.... If!"" ~p" i,Jt'\i~i~'; !\l,lc;>::N::j't\nO ;11 :2 l:d g- ~dV ~DDZ Ill\...il!...J.'1\1('J1-11U.....~~}ld 31-11:10 ,..t.l'J '-' ~\.)j '-'" .. . ,.. 3J\;J:l0-G]ll:J ~-<.,," ",', ""-~~ ~"",''',''''''''I,-^ "_,,__~,,, ,_ .. -'" ,~ . '. ,-" 0,,- '--' , ,~ ~-- .::. '~",...::..' ,-",. '" . . ~{;~ l.liii. [d , ..-[-~ '< . o . ELIZABETH Z. GRASSMYER, Plaintiff, Petitioner : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : NO. 01-02452 CIVIL TERM RANDALL S. GRASSMYER, Defendant, Respondent : CIVIL ACTION-LAW : IN DIVORCE IN RE: PETITION FOR ENFORCEMENT OF PROPERTY AND SEPARATION AGREEMENT ~ ORDER OF COURT AND NOW, this;.oday of ~,2004, upon consideration of PlaintifflWife's and Defendant/Husband's Memorandums in support of, and in opposition to, the Petition for Enforcement of Property and Separation Agreement, the Petition for enforcement of said Agreement is granted. Husband is ordered to pay all amounts owed as stipulated in said Agreement. However, we find in favor of Husband's claim for restitution in the amount of $8,959.47 on payments made in excess of the stipulated mortgage payment in said Agreement. We also find in favor of Husband's claim under said Agreement for the sum of $2000.00 credit card debt. M. Lucile Longo, Esquire 15 North Lime Street Lancaster, PA 17602 For Plaintiff/Petitioner Maria P. Cognetti, Esquire 210 Grandview Avenue, Ste. 102 Camp Hill, PA 17011 For Defendant/Respondent ~ ~ 1.0I-b~ ~, '_c"" , . "iJl'f:~~- _ 'f;:-:~: y;'. ~l ~;t;~1~h'';;':-~ 'uJl~**'~~~~~~~~t.\it~~~~~:I,it"i5;t!iillitiC!,:;;a-$~ot~-'; ,~V J '} l.L,LIIUU !. 001 AiJ!r"C(" r!' !"" ::~'-/\!:1:.) [) 1"1 '! I ..J . ' ~--: (, O'~ ~"ll-' hillr; J (~ "I , If.IIJ", AtIV.LC;;"r~+LLOGd :JH i H10 -,e" , '~'-(J'lll - - . :J,jj'l::'-lj :J ,:, _..1 '~~~"'<J, ,~ ,,",' . -"'I, ,S ,__<~,...' __~ -;',,1,,;,. -.r-~ ,_ ~- '~~ilr - ," ':~JWl~~ln'll o -- "'-J~ii:l <," ---......., ,-,', . . ,- ~ ~ - < ,-I d '~'-"""- "_'ii-, , 0< '- ' o ELIZABETH Z. GRASSMYER, Plaintiff, Petitioner : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : NO. 01-02452 CIVIL TERM RANDALL S. GRASSMYER, Defendant, Respondent : CIVIL ACTION-LAW : IN DIVORCE IN RE: OPINION PURSUANT TO PETITION FOR ENFORCEMENT OF PROPERTY AND SEPARATION AGREEMENT Hoffer, P.J. The Plaintiff in this case filed a Petition seeking enforcement of a Property and Separation Agreement (hereinafter "PSA") against the Defendant, her former husband, when he failed to pay her $500.00 for the mortgage payment as stipulated in the agreement. On February 3, 2004, Husband filed Answer and Counterclaim, seeking reimbursements for amounts paid above $500.00 per month. On March 25, 2004, Wife filed an Answer to the Counterclaim. A hearing was held on April 5, 2004, and the court determined that the terms in the agreement were clear and concise and would be interpreted without parol evidence. Parties submitted briefs on the issue of whether the Husband is entitled to credit for excess payments above $500.00 per month. For reasons stated in this opinion, the Husband is entitled to restitution to recover the excess mortgage payments, and he may recover $2000.00 credit card debt owed under the PSA. ~~ -"""" L,~ J ~ __ _ :.-1., . "'~ - - 0.'. ."," o STATEMENT OF FACTS The parties in this case, Elizabeth Grassmyer, Plaintiff, and Randall Grassmyer, Defendant, were divorced on October 1, 2001. They have a ten- year-old son, Alexander, who resides primarily with the Wife.1 Prior to the final divorce decree, the parties executed a Property and Separation Agreement, incorporated into the divorce decree, which contained a provision mandating that Husband reimburse Wife $500.00 per month for his share of the mortgage payment until their son reaches the age of 18.2 Despite PSA provision, Husband paid the entire mortgage amount directly to the mortgage company monthly from December 2000 through August 2003 with amounts averaging over $720.00 per month. Wife did not reimburse him for the excess payments, nor did she formally agree to any modification of the agreement. 3 Husband then paid $500.00 monthly from September through November 2003. After December 2003, Husband ceased any further payments to Wife, including any child support and mortgage payments.4 The agreement also mandated that Wife reimburse Husband $2000.00, payable as $40.00 per month until paid in full, for a debt on a Mastercard.5 To date, Wife has made no payments on the Mastercard debt.6 The mortgage provision at issue appears under a section in the PSA labeled, "Alimony, Alimony Pendente Lite, Support and Maintenance," and there 1 Defendant's Memorandum in Opposition to Petition for Enforcement of Property Agreement at 1. 2 Property and Separation Agreement at 3. 3 Defendant's Mem. at 2.; Plaintiffs Mem. at 2; Court Exhibit A. 4 Defendant's Mem. at 5.; Plaintiffs Mem. at 2. 5 Property and Separation Agreement at 5. 6 Order of Court, April 5th, 2004 2 ~1 -> o . is a separate provision mandating that Husband pay $100.00 per week in child support. There is also a provision prohibiting unilateral modification of the agreement. 7 Husband indicates that he stopped making payments to Wife (and he paid directly) because that he feared she would not pay the mortgage, causing a foreclosure and a negative impact on his credit.B Wife indicates that Husband benefited from paying entire mortgage amount by claiming the interest on his individual tax return.9 DISCUSSION The question presented is whether the Husband is entitled to recover excess payments beyond the $500.00 stipulated in their PSA. Although Husband may not recover excess payments as a credit against other provisions under the PSA, he is entitled to recover in quasi-contract. Since Wife concedes that she has made no payments on $2000.00 debt owed under the same agreement, Husband is entitled to recover that debt under the PSA. 1. The meaning of the "mortgage provision" is unambiguous, and parol evidence may not be used to modify the PSA. The Divorce Code governs the court's ability to enforce property settlement agreements, like the one involved here. Specifically, Section 3105 provides that "a provision regarding the disposition of property rights and interests.. .shall not be subject to modification by the Court.,,10 A property settlement agreement, when incorporated into the divorce decree, must be 7 Property and Separaton Agreement at 10. B Defendant's Mem. at 5. 9 Plaintff's Mem. at 2. 10 23 Pa.C.S. 9 3105(c) (2004). 3 ',,_.:;-,,-< 10 ~,t,' ']}j,y - 0....... , o construed as written according to the basic tenets of contract law, and may not be modified under the guise of interpretation when its terms are clear and unambiguous.11 Husband is asking for a credit to be applied towards all payments stemming from the PSA because he overpaid the clearly stipulated mortgage amount. He argues that because the $500.00 clause appears under a heading labeled "Alimony" and Wife expressly waived her right to alimony and because payments are to cease upon Alexander's 18th birthday, this payment term is ambiguous. Then, if the term is ambiguous, parol evidence should be admitted to demonstrate that these payments were intended to be a form of child support.12 If they were intended as child support, a credit for the excess "mortgage" payment could be applied against his child support obligations. Husband argues that he understood these payments as child support.13 He also blames poor drafting as the reason that the $500.00 payment was not labeled as child support. Husband relies solely on Kohn v. Kohn to support his contention that parol evidence should be used to determine parties' intent as to the meaning of the $500.00 payment. In the Kohn case, the court found that a $1000.00 payment under a paragraph labeled "alimony" was ambiguous, and allowed parol evidence to demonstrate that the parties intended it to be child support.14 However, that case is distinguishable from the case at bar. Unlike the 11 See Krioo v. Krioo. 784 A.2d 158, 162 (Pa. Super. Ct. 2001), appealed, 2004 WL 1175278 (Pa.) (citing Little v. Little, 657 A.2d 12, 15 (Pa. Super. Ct. 1984). 12 Defendant's Mem. at 9. 13 Defendant's Mem. at 8. 14 Kohn v. Kohn, 364 A.2d 350, 353 (Pa. Super. Ct. 1976). 4 11 1: , C I ' ~ 1_ ,-- --~" "' '. ~" . , ~ o o agreement in Kohn, there is a separate provision for child support here, indicating that the parties had already negotiated the terms of child support. In the case at bar, the court determined at the April 5th hearing that the PSA terms were clear and concise, and that they would be interpreted without parol evidence Concerning the parties' intent. The PSA states that the Husband shall pay Wife $500.00 on the first of each month for his share of the mortgage until Alexander is 18, and that Husband shall pay Wife $100.00 per week in child support. 15 2. Permitting an overpayment of one provision to be used as a credit against other PSA provisions is an invalid modification. In DeMatteis v. DeMatteis, the court found that an invalid modification of a PSA occurred when the lower court permitted a party to receive credit for any amount paid towards a mortgage debt against any amount owed under the rest of the contract provisions.16 The husband in DeMatteis paid mortgage payments to his ex-wife monthly as stipulated under their property settlement agreement. When the mortgage foreclosed, the lower court granted a credit for all past payments made by the husband towards his mortgage against all his future obligations under the PSA.17 In the instant case, the meaning of the $500.00 per month mortgage provision is unambiguous, and cannot be interpreted as child support. In addition, there is no evidence of a written modification mutually assented to as is required for modification under this PSA. Therefore, applying such a credit for IS Property and Separation Agreement at 3. 16 DeMatteis v. DeMatteis, 582 A.2d 666,672. (pa. Super. Ct. 1990) 17!l;l 5 lJv J. '-, [ ,-', , -, -",,, -~',,~-'-,-, - \<', it'i.. ~ O. , . . excess mortgage payments against a separate provision for child support would be a clear departure from the PSA payment terms. Since this would result in an invalid modification, relief on this basis will not be granted, and the agreement will continue to be enforced as written. 3. Husband is entitled to restitution for excess payments above the amount stipulated in PSA. On the other hand, a claim for restitution does not lie upon an express contract, but upon the equitable theory of unjust enrichment. Unjust enrichment occurs when a person has and retains money or benefits, which in justice and equity belong to another.18 Where unjust enrichment is found, the law implies a contract, referred to as a quasi-contract.19 In order to recover under quasi- contract, a plaintiff must prove that 1) a benefit was conferred upon defendant, 2) defendant appreciated the benefit, and 3) defendant accepted and retained benefits under the circumstances that it would be inequitable for him to retain them.2o In determining whether this doctrine applies, the court primarily focuses on whether a party has been unjustly enriched, not the intentions of the parties.21 In the instant case, Husband is entitled to recover payments in excess of the $500.00 provision under quasi-contract. The first two elements are met. Husband conferred a benefit on Wife by paying the entire mortgage payment every month from October 2000 through August 2003. He relieved Wife of her burden under the agreement of paying her 18 Black's Law Dictionary 1535. 19 Schott v. Westinqhouse Elec. Corp., 259 A.2d 443,449 (pa. 1969). 20 Mitchell v. Moore, 729 A.2d 1400, 1203 (pa. Super. Ct. 1999) 21 Stver v. Huqo, 619 A.2d 347, 350 (Pa. Super. Ct. 1993). 6 11; r: ~~,-. _ i , , ""'("'i~ o o share of the mortgage. She appreciated that benefit because she continued to live at the marital residence with the knowledge that Husband was paying entire mortgage, and she failed to reimburse him for excess payments. With regards to the third element, when a party passively receives a benefit, they become unjustly enriched when it is unconscionable for him or her to retain that benefit.22 Unconscionability is dependant on the circumstances of each case.23 The plaintiff in Schneck, an attorney, advanced $32,000 to the Commonwealth to satisfy a settlement debt for which his clients were responsible. The court found that the clients were unjustly enriched. First, benefit was conferred by the lawyer's efforts resulted in an acquittal and subsequent favorable settlement. Second, although he paid the debt without his clients' knowledge, his clients knew that they were responsible for it. Finally, the lawyer paid the fees with a reasonable expectation of reimbursement because he believed he had implied authority to do so. Because of the context of the parties' relationship as attorney-client, there is a presumption that a conferred benefit is not gratuitous?4 In this case, allowing Wife to retain the benefit of living at the marital residence without reimbursing him the difference between the entire payment and his contractual obligation is unconscionable. Both Husband and Wife were responsible for paying the mortgage and the PSA allocated the amount that each 22 Gee v. Eberle, 420 A.2d 1050, 1058 (Pa. Super. Ct. 1980) (citing Roman Mosaic and Tile Co., Inc. v. Vollrath, 226 Pa.Super. Ct. at 218,313 A.2d at 307.); See Schneck v. K.E. David. LTD., 666 A.2d 327, 329 (Pa. Super. Ct. 1995). ~eeld. 24 See Id. 7 1+ I... ;-, .. ., o was obligated to pay. She accepted the benefit by her passive receipt of it. Similar to the cli~nts in Schneck, Wife knew that she was responsible for the remainder of the mortgage in excess of $500.00 per month, but she allowed Husband to pay, for the entire amount. Husband indicates that he paid the mortgage directly to the mortgage company because he had always done so during the marriage, and that Wife had not objected to this plan. He also indicated that he was afraid of negative credit implications and harm to his son if a foreclosure resulted from Wife's non-payment,25 Similar to the Schneck lawyer, this demonstrates that Husband reasonably expected reimbursement because he believed that he had Wife's authority to continue paying the mortgage directly as he had always done. In addition, in the context of their relationship as former spouses, there is a presumption that the benefit was not gratuitous. Wife argues that Section 3105 prevents the court from granting restitution because it must first determine that she received a benefit to which she was not entitled. Specifically, the court would have to examine the PSA itself to determine if child support and alimony provisions were fair and adequate before it determines if she was unjustly enriched. Here, wife received more than she bargained for under the PSA. However, since the overpayment involves a mortgage payment, that amount is not subject to a determination by the court to determine fairness because the court cannot modify such provisions. Since Section 3105(b) expressly gives the court authority to modify a child support provision in such agreements at any time to ensure adequacy, an examination 25 Defendant's Mem. at 4. 8 ,,', 't"-", l~ , ..........' , , ,I , ; c A W here is not necessary to determine if child support was adequate.26 This public policy exception to contract law protects a party's freedom to contract; however, if child support is inadequate, that provision is always sUbject to an increase in the best interests of the child.27 Granting Husband restitution for his overpayments will not interfere with court's ability to ensure adequate child support because a credit for excess mortgage payments will not be applied against any other agreement provision beyond the mortgage obligation. 2623 Pa.C.S. ~ 3105(b) 27 See McGouah v. McGouah, 522 A.2d 638 (Pa. Super. Ct. 1987). 9 _.iI;:,'>-' 1~ . ~ o . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ELIZABETH Z. GRASSMYER Plaintiff ) ) ) ) No. 01-02452 ) ) ) vs. RANDALL S. GRASSMYER NOTICE OF APPEAL Notice is hereby given that ELIZABETH Z. GRASSMYER, Plaintiff above named, hereby appeals to the Superior Court of the Commonwealth of Pennsylvania from the Order entered in this matter on the 30th day of June 2004. This Order has been entered in the docket on the June 30, 2004 , as evidenced by the attached copy of the docket entry. No testimony was taken All testimony has already been transcribed & filed by Court Reporter ORDER FOR TRANSCRIPT A Notice of Appeal having been field in this matter, the official court reporter, is hereby ordered to produce, certify and filed the OUTSTANDING transcript for the hearing held on April 5, 2004, in this matter in conformity with Pa. R.A.P. 1922. Pursuant to Pa.R.A.P. 1911(a) and PA.R.J.A. 5000.6 and 7, the reporter is requested to notify the Appellant, Court and Clerk forthwith so the appeal may be immediately processed. Signature Check # in the amount of $60.00 attached herewith, and this Notice mailed to the above appellate court on by 11 PYS511 CU\1, "rland County prothonotary.", Office ,~ " Civil Case Print " , 2001-02452 GRASSMYER RANDALL S (vs) GRASSMYER ELIZABETH Z Reference No. . : Case Type.....: COMPLAINT - DIVORCE Judgment. . . . . . : 00 JVdge Assigned: HOFFER GEORGE E PJ D~sposed Desc.: GRANTED ------------ Case Comments ------------- ",~~ ~,~., - , _.1 ~.J~" ;" " .~ Page 1 Filed........ : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt l.: Higher Crt 2.: 4/26/2001 2:48 0/00/0000 10/01/200l ******************************************************************************** General Index Attorney Info GRASSMYER RANDALL S l003 NANCROC DRIVE APARTMENT 13 MECHANICSBURG PA l70l3 GRASSMYER ELIZABETH Z 98 ST JOHN'S ROAD CAMP HILL PA l70ll PLAINTIFF PETRIE CHARLES E DEFENDANT ******************************************************************************** * Date Entries * ******************************************************************************** 4/26/2001 4/26/2001 8/10/200l 8/l0/200l 9/l0/200l 9/l0/2001 9/10/200l 9/l0/200l 9/l0/2001 9/l0/200l 9/l0/2001 lO/01/200l 9/05/2003 l2/16/2003 l2/l8/2003 2/04/2004 2/06/2004 FIRST ENTRY COMPLAINT - DIVORCE ------------------------------------------------------------------- AFFIDAVIT OF NON MILITARY SERVICE --------------------------------------------------------------- AFFIDAVIT OF CONSENT - PLAINTIFF ------------------------------------------------------------------- WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-PLFF ------------------------------------------------------------------- AFFIDAVIT OF SERVICE ------------------------------------------------------------------- AFFIDAVIT OF CONSENT - PLAINTIFF ------------------------------------------------------------------- WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-PLFF ------------------------------------------------------------------- AFFIDAVIT OF CONSENT - DEFENDANT ------------------------------------------------------------------- WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-DEFT ------------------------------------------------------------------- PROPERTY SETTLEMENT AGREEMENT ------------------------------------------------------------------- PRAECIPE TO TRANSMIT RECORD ------------------------------------------------------------------- DIVORCE DECREE ENTERED BY GEORGE E HOFFER P J NOTICE MAILED ------------------------------------------------------------------- DOMESTIC RELATIONS ORDER RELATING TO THE ASSIGNMENT OF RANDALL S GRASSMYER'SACCOUNT BALANCE UNDER THE SYSCO CORPORATION EMPLOYEES 40l K PLAN - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- PETITION FOR ENFORCEMENT OF PROPERTY & SEPARATION AGREEMENT - BY M LUCILE LONGO ESQ ------------------------------------------------------------------- ORDER l2/l7/03 UPON CONSIDERATION OF THE WITHIN PETITION A RULE IS ISSUED UPON RESPONDENT RANDALL S GRASSMYER TO SHOW CAUSE WHY THE PRAYER IN THE PETITION SHOULD NOT BE GRANTED IN RE: HEARING SCHEDULED THE 1lTH DAY OF FEBRUARY 2004 AT 9:30 AM IN COURTROOM #3 OF THE CUMERLAND COUNTY COURTHOUSE GEORGE E HOFFER P JUDGE COPIES MAILED 12/lS/03 ------------------------------------------------------------------- ANSWER AND COUNTERCLAIM TO PETITION FOR ENFORCEMENT OF PROPERTY AND SEPARATION AGREEMENT - BY MARIA P COGNETTI ESQ FOR DEFT ------------------------------------------------------------------- ORDER - DATED 2/6/04 - IN RE FACT THAT COUNSEL FOR DEFT IS UNAVIALABLE FOR HEARING ON 2/11/04 DUE TO MEDICAL ISSUES IT IS HEREBY ORDERED AND DECREED THAT THE HEARING SET FOR THAT DATE IS CONTINUED TO THE 4/5/04 AT 1:30 PM IN CR 3 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- 7~ _~"",. -~ M~-' ~o '. ._, PYS511 ..~ > 2001-02452 - - ~- '<-.' -~ ~~" 0"" CU1)rlan9 90unty Prothonotary 0.. Office , C1V1I Case Prlnt _ , - , . GRASSMYER RANDALL S (vs) GRASSMYER ELIZABETH Z Page 2 Reference No. . : Case Type.....: COMPLAINT - DIVORCE Judgment.......: .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc.: GRANTED ------------ Case Comments ------------- 2/06/2004 3/26/2004 4/06/2004 6/30/2004 Filed..... ...: 4/26/200l Time.........: 2:48 Execution Date 0/00/0000 Jury Trial. . . . D~sposed Date. lO/Ol/200l Hlgher Crt l.: Higher Crt 2.: ORDER OF COURT - DATED 2/6/04 - IN RE ANSWER AND COUNTERCLAIM RESPONDENT'S COUNTERCLAIM SHALL BE HEARD AT THE SAME TIME AS PETITIONER'S ORIGINAL CLAIM WHICH IS CURRENTLY SCHEDULED FOR HEARING ON 4/5/04 AT l:30 PM IN CR 3 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ANSWER TO COUNTERCLAIM- BY M LUCILE LONGO ESQ FOR PETITIONER ------------------------------------------------------------------- ORDER OF COURT - DATED 4/5/04 - IN RE PETITION FOR ENFORCEMENT OF PROPERTY & MARITAL SETTLEMENT AGREMENT - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED 4/6/04 ------------------------------------------------------------------- ORDER OF COURT - DATED 6/30/04 - IN RE PETITION FOR ENFORCEMENT OF PROPERTY AND SEPARATION AGREEMENT - IS GRANTED - IT IS ORDERED TO PAY ALL AMOUNTS OWED AS STIPULATED IN SAID AGREEMENT HOWEVER WE FIND IN FAVOR OF HUSBAND'S CLAIM FOR RESTITUTION IN THE AMOUNT OF $8,959.47 ON PAYMENTS MADE IN EXCESS OF THE STIPULATED MORTGAGE PAYMENT IN SAID AGREEMENT WE ALSO FIND IN FVOR OF HUSBAND'S CLAIM UNDER SAID AGREEMENT FOR SUM OF $2000.00 CREDIT CARD DEBT - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Adl End Bal * *****************************************~******~******************************* DIVORCE TAX ON CMPLT SETTLEMENT MASTER'S FEE DIV PA SURCHG JCP FEE 35.00 .50 5.00 125.00 lO.OO 5.00 35.00 .50 5.00 l25.00 lO.OO 5.00 .00 .00 .00 .00 .00 .00 l80.50 l80.50 .00 ******************************************************************************** * End of Case Information * ******************************************************************************** l'RUE COpy FROM RECORD Il'I T lI6tImony Whereof. I here unto set my MflcJ om ...~ m ~ ~9'. ".. rll3le.. '. . ~ tJf~.~~~ 'l .. lq ~ ',,-,1, , ~~",' - ,-, - -" c__ _,' _ ''"'''' - J','_i" ,'W';-,;,-'i.;:..-""" 'J_~ __ ,>~ ,-: e . PROOF OF SERVICE I hereby certify that a true and correct copy of the foregoing Notice of Appeal and Docket Entries were served by first class mail, postage prepaid, addressed as follows: Maria P. Cognetti, Esq. 210 Grandview Avenue Suite 102 Camp Hill, PA 17011 The Honorable George E. Hoffer Cumberland County Court House One Courthouse Square Carlisle, PA 17013 Court Administrator. Cumberland County Court House One Courthouse Square Carlisle, PA 17013 Marie Farley COurt Reporter One Courthouse Square Carlisle, PA 17013 i e Lo Lime St L caster, PA (717) 397-5127 Attorney I.D. 67907 DATE: <(0 .t ~"-""'_.""'~~~0J)j',);jm$..,"4'#"~~~;~iE~~~J,.,,~Mii~5i..~~'.' "-~_ . ~ '" o - ~- -., -:--~"'"" .....- ,_J, ~""__ . " '4' 'ft-:!! o t::J ~ -ILl l" w "" tt- () 0 = 0 1l c: = ., ~;>" ..r- T r-;--; <- -j 0 n ;i - c::: I n,:J'1 "- ;7 "~i, 1 ,- r () 2,,-~ -orT! ~ '_F) : :ny CIt ,n 00 )..; FE! <. --1 l\J ;:::(~, " :r:W D ...",~ ~?(:; ),) }~~ (:.~~ - r:,:J On1 - Z ~ -....0 ~ =< c.n 'Xl 0:> -< ~ . 3;?SP.M... . r-~J.;fS ;). Superior Court of Pennsylvania -_..~~> - - -'- .. Appea\ Docket Sheet. . l....11 .' Docket Number: ~'F,,;'DA2004~- Page 1 of2 July 19, 2004 - Elizabeth Z. Grassmyer, Appellant v. Randall S Grassmyer Initiating Document: Notice of Appeal Case Statlls: Active Case Processing Status: July 19, 2004 Journal Number: Case Category: Awaiting Original Record Civil Case Type: Divorce Related Docket Nos.: Consolidated Docket Nos.: Next Event Type: Docketing Statement Received Next Event Type: Original Record Received SCHEDULED EVENT Next Event Due Date: August 2, 2004 Next Event Due Dat~O, 2ll.@."-: Appellant Pro Se: IFP Status: Appellee Pro Se: IFP Status: COUNSEL INFORMATION Grassmyer, Elizabeth Z. Appoint Counsel Status: No Appellant Attorney Information: Attorney: Longo, M. Lucile Bar No.: 67907 Law Firm: Honaman, Longo & Seaman LLP Address: 15 N Lime Street Lancaster, PA 17602 Phone No.: (717)397-5127 Fax No.: (717)397-5267 Receive Mail: Yes E-Mail Address: mlslaw@pptnet.ccm Receive E-Mail: No Grassmyer, Randall S Appoint Counsel Status: Appellee Attorney Information: Attorney: Coghettl, Maria P. Bar No.: 27914 Law Firm: Cognetti & Associates Address: 210 Grandview Ave #102 Camp Hill, PA 17011 Phone No.: (717)909-4060 -Fax No.: (717)909-4068 Receive Mail: Yes E-Mail Address: Receive E-Mail: No 7/1912004 _ 3023 %{ :~)lt'\\~}'_HOOi"",,_,~Ai~,,,-"-{L'~ ,:H",_ '6j"""'~,,,i', ~~"H",Hi:1",1;,hii!"<-.~l?fj;jj'1-i"i;:'L;,-J-"_""'Mlli",!:'fr,;lij~jti,i"'~f\,*i.'W--4<"'*~~~itMio.;_>llJB;.""Il<'~~Af!!l~>ig" ,._'~I<.<,._~:' (j..., ,,-,,-1 l;m>J' o iT! LI -~~- ,e.."_ ^~ I ,> "~i1 -~, -" L.'"' ,. J . 1'<) "' '-. ~_ 0 ....., 0 = r- = "T1 ~ ...- ~ <- ....; c: I,., r- mp: 1" -om 0 86 --'-'; -v --n - :Jr 12e. - ;5111 :::'~ N " ::s :;;: -< .s=- ::0 w -< ~ ~j.,~,,"~ J ' ,--, i 1 _,_ ~,,_' n'7:L---"".._ 3:~9 P.M., o o Superior Court of Pennsylvania Appeal- Docket Sheet Docket Number: 1114 MDA2004 Page 2 of 2 July 19, 2004 - FEE INFORMATION Fee Date 7/19/04 Fee Name Notice of Appeal Fee Amt 60.00 Paid Amount 60.00 Receipt Number 2004SPRMD000647 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Date of Order Appealed From: June 30, 2004 Date Documents Received: July 19, 2004 Order Type: Order Entered Division: Civil Judicial District: 9 Date Notice of Appeal Filed: July 15, 2004 OTN: Judge: Hoffer, George E. President Judge Lower Court Docket No.: 01-02452 ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS Filed Date DOCKET ENTRIES Docket Entry/Document Name Party Type Notice of Appeal Filed Filed By July 19, 2004 Appellant Grassmyer, Elizabeth Z. July 19, 2004 Docketing Statement Exited (Civil) Middle District Filing Office 7/19/2004 3023 ~~ ~, ,,,,~_,,,,,,, " _."~ ~,~L " , -~jik~~~'%lJlf.~!,,,"'io"''ffi~ii:ili@,,*.JjH~;,l1f,~~W1!iilli';b\',4'''d{.ili~P:r$''~li~'!!'.l\'.ei;-'!ii'f'!i;~~'ililjj~t n--lli~ilf.iili6 ,~, ~) ~ ')~ ;d';; ;,,~,;_~ w~ .IL 1-: iJ.,J,.J L J Jllll.",,,u~ "" ..", '.".'. "'. ". .....JlIDffMtL~~~'i::illU-~L ,,- , ~~< o , UIIII. "-'[ ';:2 ,.,., 0 = = ., 0:- <- -l c: III ,- [11r -oDJ ", :IlL' CJ q,L, ----.~- "'... 'I -0 ;}i5 3: r:Y (:)m 5?~ r ~ w .~ l' "I I ~ -. " "-" J . ' '~ ~. 0 , {~ 0 . 2000 2001 2002 2003 January $732.35 $754.74 $733.42 February $732.35 $754.74 $733.42 March $768.00 $754.74 $733.42 April $750.00 $754.74 $733.42 May $732.35 $754.74 $733.42 June $732.54 $754.74 $733.42 July $762.00 $754.74 $733.42 August $732.35 $732.35 $754.74 $733.42 September $732.35 $732.35 $754.74 $500.00 October $732.35 $732.35 $754.74 $500.00 November $732.35 $754.74 $733.42 $500.00 December $732.35 $754.74 $733.42 ~ Total by Year $3,661.75 $8,916.12 $9,014.24 $7.367.36 Total paid by Father $28.959.47 40 months x $500 contribution ($20000.00\ TOTAL OVERPAYMENT $8,959.47 preoared 4/3/04 DEFENDANT'S i EXHIBIT ~~ B , ~""" ...-<~", -- ,--._, -~, --, ' ''1'-.... - , - ._.~ ~~ ' ~~ ",- :\t'e Or ~ CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) SUPPLEMENTAL RECORD To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYL VANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA RAP. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: RANDALL S. GRASSMYER V. ELIZABETH Z. GRASSMYER NO. 01-2452 CIVIL TERM 1114 MDA 2004 The documents comprising the record have been numbered from No. 84 to 116, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 9/21/04 . An additional COpy of this certificate is enclosed. Please silm and date COpy. thereby acknowledtrlnl! receiot of this record. Date Signature & Title ----" ~--_. RECORD FILED IN SUPERIOR COURT SEP 232004" ./Y HARRISBURG ~ JJtl.Ji _ . 1- 1-- , ,c- -. -,-.';.,-,- ", ,i-__:-' " r---:1!l , 111-"-00""- :'.~~ 0 0 Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CUMBERLAND in the Commonwealth of Pennsylvania 11U MDA 2004 to No. 01-2452 CIVIL Term, 19 is contained the following: COPY OF COMKPLETE DOCKET ENTRY S U P P LE M E N T A L R E C 0 R D RANDALL s. GRASSMYER v. ELIZABETH Z. GRASSMYER SEE ATTACHED CERTIFIED DOCKET ENTRIES. i T ll!l, u. '---r- i}lfl- (ir(""-"~r' -l'lit'it'"<' ""_I jt', o 0... .. Commonwealth of Pennsylvania County of Cumberland } Ss: I. ("11 r+ i ~ R Lnn CJ ' Prothonotary of the Court of Common Pleas in and for said County. do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated. wherein Rnnnnll s. ~r~~~myp-r In TESTIMONY WHEREOF, I this 2lst Plaintiff, and Elizabeth Z. Grassmyer Defendant _, as the same remains of record before the said Court at No. 01- 2 4 52 of Civil Term, A.D. 19_. have hereunto set my hand and affixed the seal of said Court day of September A. D., ~04 . Prothonotary I, George E. Hoffer President Judge of the Ninth Judicial District, cl)mposed of the County of Cumberland. do certify that Curtls R. Long , by whom the annexed record, certificate and attestation were made and given, .and who, in his own proper handwriting. thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, allhe time ofso doing. and now is Prothonotary in and for said County of .CUMBERLAND in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as els here, and that the said record. certificate and attestation are in due form of law and made by th.e Commonwealth of Pennsylvania County of Cumberland } ss: I, Curtis R. Long . Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Georqe E. Hoffer, P. J . by whom the foregoing attestation was made. and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas. Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 21st day of September A.D. :W!!:L-. Prothonotary "'!IIil~ ..- . )-..1- ,. ~ ~-"~ -, ~.~ ~",""" PlY53S504l20092l2004 CUmberlO~ 90unty Prothonotary's 00.. .ice : .,1Vll Case Prlnt .' '" "" 200l-02452 GRASSMYER RANDALL S (VS) GRASSMYER ELIZABETH Z Reference No..: FlIed . Case T~e.....: COMPLAINT - DIVORCE . ......... J d Time. . . . . . . . . : U gmen ...... .00 Execution Date DJ~dge AdssDigned: HOFFER GEORGE E PJ Jury Trial.... lspose esc.: GRANTED Disposed Date. ------------ Case Comments ------------- Higher Crt l.: Higher Crt 2.: Page 1 4/26/200l 2:48 0/00/0000 lO/Ol/200l 1114 MDA2004 ******************************************************************************** General Index Attorney Info GRASSMYER RANDALL S PLAINTIFF LONGO M LUCILE l003 NANCROC DRIVE APARTMENT 13 MECHANICSBURG PA l7013 GRASSMYER ELIZABETH Z DEFENDANT COGNETTI MARIA P 98 ST JOHN'S ROAD CAMP HILL PA l7011 ******************************************************************************** * Date Entries * ******************************************************************************** 4/26/2001 4/26/200l 8/10/200l S/lO/2001 9/l0/200l 9/l0/200l 9/l0/200l 9/l0/200l 9/l0/200l 9/l0/200l 9/10/2001 10/01/200l 9/05/2003 12/l6/2003 12/lB/2003 2/04/2004 2/06/2004 COMPLAINT - DIVORCE FIRST ENTRY AFFIDAVIT OF NON MILITARY SERVICE AFFIDAVIT OF CONSENT - PLAINTIFF ------------------------------------------------------------------- WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-PLFF ------------------------------------------------------------------- AFFIDAVIT OF SERVICE AFFIDAVIT OF CONSENT - PLAINTIFF WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-PLFF ------------------------------------------------------------------- AFFIDAVIT OF CONSENT - DEFENDANT WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-DEFT ------------------------------------------------------------------- PROPERTY SETTLEMENT AGREEMENT PRAECIPE TO TRANSMIT RECORD ------------------------------------------------------------------- DIVORCE DECREE ENTERED BY GEORGE E HOFFER P J NOTICE MAILED ------------------------------------------------------------------- DOMESTIC RELATIONS ORDER RELATING TO THE ASSIGNMENT OF RANDALL S GRASSMYER'S ACCOUNT BALANCE UNDER THE SYSCO CORPORATION EMPLOYEES 40l K PLAN - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- PETITION FOR ENFORCEMENT OF PROPERTY & SEPARATION AGREEMENT - BY M LUCILE LONGO ESQ ------~------------------------------------------------------------ ORDER l2/l7/03 UPON CONSIDERATION OF THE WITHIN PETITION A RULE IS ISSUED UPON RESPONDENT RANDALL S GRASSMYER TO SHOW CAUSE WHY THE PRAYER IN THE PETITION SHOULD NOT BE GRANTED IN RE: HEARING SCHEDULED THE llTH DAY OF FEBRUARY 2004 AT 9:30 AM IN COURTROOM #3 OF THE CUMERLAND COUNTY COURTHOUSE GEORGE E HOFFER P JUDGE COPIES MAILED l2/18/03 ----------------------------------~-------------------------------- ANSWER AND. COUNTERCLAIM TO PETITION FOR ENFORCEMENT OF PROPERTY AND SEPARATION AGREEMENT - BY MARIA P COGNETTI ESQ FOR DEFT -------------------------,------------------------------------------ ORDER - DATED 2/6/04 - IN RE FACT ~HAT COUNSEL FOR DEFT IS UNAVIALABLE FOR HEARING ON 2/ll/04 DUE TO MEDICAL ISSUES IT IS HEREBY ORDERED AND DECREED THAT THE HEARING SET FOR THAT DATE IS CONTINUED TO THE 4/5/04 AT l:30 PM IN CR 3 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED Iii PYS510 Cumberland County Prothonotary's Office 15304209212004 Civil Case Print 2001-02452 GRASSMYER RANDALL S (vs) GRASSMYER Reference No. . : Case Type.... .: COMPLAINT - DIVORCE Judgment...... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc.: GRANTED ------------ Case Comments ------------- PAGE 00. 2/06/2004 3/26/2004 4/06/2004 6/30/2004 84 - 116 7/15/2004 7/20/2004 9/03/2004 9/03/2004 9/10/2004 o ; , o Page 2 ELIZABETH Z Filed. . . . . . . . : 4/26/2001 Time.........: 2:48 Execution Date 0/00/0000 Jury Trial. . . . Disposed Date. 10/01/2001 Higher Crt 1.: 1114 MbA2004 Hiqher Crt 2.: ORDER OF COURT - DATED 2/6/04 - IN RE ANSWER AND COUNTERCLAIM RESPONDENT'S COUNTERCLAIM SHALL BE HEARD AT THE SAME TIME AS PETITIONER'S ORIGINAL CLAIM WHICH IS CURRENTLY SCHEDULED FOR HEARING ON 4/5/04 AT 1:30 PM IN CR 3 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ANSWER TO COUNTERCLAIM- BY M LUCILE LONGO ESQ FOR PETITIONER ------------------------------------------------------------------- ORDER OF COURT - DATED 4/5/04 - IN RE PETITION FOR ENFORCEMENT OF PROPERTY & MARITAL SETTLEMENT AGREMENT - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED 4/6/04 ------------------------------------------------------------------- ORDER OF COURT - DATED 6/30/04 - IN RE PETITION FOR ENFORCEMENT OF PROPERTY AND SEPARATION AGREEMENT - IS GRANTED - IT IS ORDERED TO PAY ALL AMOUNTS OWED AS STIPULATED IN SAID AGREEMENT HOWEVER WE FIND IN FAVOR OF HUSBAND'S CLAIM FOR RESTITUTION IN THE AMOUNT OF $8 959.47 ON PAYMENTS MADE IN EXCESS OF THE STIPULATED MORTGAGE PAYMENT IN SAID AGREEMENT WE ALSO FIND IN FAVOR OF HUSBAND'S CLAIM UNDER SAID AGREEMENT FOR SUM OF $2000.00 CREDIT CARD DEBT - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- NOTICE OF APPEAL TO SUPERIOR COURT - BY LUCILE LONGO ESQ FOR PLFF ------------------------------------------------------------------- SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 1114 MDA 2004 ------------------------------------------------------------------- CASE TRANSFERRED TO SUPERIOR COURT OF PA ------------------------------------------------------------------- SERVICE OF THE LIST OF RECORD DOCUMENTS TO ALL COUNSEL/PARTIES ------------------------------------------------------------------- TRANSCRIPT OF PETTI ION FOR ENFORCEMENT OF PROPERTY & MARITAL SET~LEMENT AREEMENT BEFORE HON GEORG.E E HOFFER PJ ON MONDAY 4/5/04 .FILED - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Adi End Bal * *****************************************~************************************** DIVORCE TAX ON CMPLT SETTLEMENT MASTER'S FEE DIV PA SURCHG JCP FEE APPEAL 35.00 35.00 .50 .50 5.00 5.00 125.00 125.00 10.00 10.00 5.00 5.00 30.00 30.00 ------------------------ 210.50 210.50 .00 .00 .00 .00 .00 .00 .00 ------------ .00 ******************************************************************************** * End of Case Information * ******************************************************************************** 9/21/04 SUPPLEMENTAL REXDRD TRANS~J5l(l(t;U 10 SUPERIOR <XXlRl' OF PA 9/2l/04 SERVICE OF THE LISf OF REXDRD ~ 10 ALL CIXJNSEL/PARITIS TRUE ropy FROM RECORD In TeQhIIOllY-wtlereof. I here unto set my haAd '!nO the seal at Isle, ~ _, r rhi ~~ r };.. ,:-.Ii.. , ,'~ -, '''''"' - " "'~ '=.__~ " -I , -,-- o o RANDALL S GRASSMYER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-2452 CIVIL TERM ELIZABETH Z. GRASSMYER, Defendant IN DIVORCE IN RE: PETITION FOR ENFORCEMENT OF PROPERTY & MARITAL SETTLEMENT AGREEMENT Proceedings held before the HONORABLE GEORGE E. HOFFER, President Judge, Cumberland County Courthouse, Carlisle, Pennsylvania, on Monday, April 5, 2004, in Courtroom Number 3. APPEARANCES: MARIA P. COGNETTI, Esquire For the Plaintiff M. LUCILE LONGO, Esquire For the Defendant ,'0< ~-"F r ~'4- u i , ~ I 1-- -;-<-:- - ~ .:- r~( o o 1 April 5, 2004, l:35 p.m. 2 Courtroom Number 3 3 THE COURT: Ms. Longo, I have your petition, 4 and I have an answer and counterclaim filed by Ms. Cognetti. 5 MS. LONGO: You should have an answer that I 6 filed to the counterclaim also, Your Honor. 7 THE COURT: I do. Am I going to need B testimony on this? 9 MS. LONGO: Mine would be very brief, Your lO Honor, but it seems to me it is pretty straightforward. II THE COURT: Well l2 MS. LONGO: The only things I would introduce 13 additionally would be my client's attorney's fees for the 14 breach. l5 MS. COGNETTI: Your Honor, I also thought it l6 was straightforward, but in a totally different sense. I 17 thought we should have sat down prior to today and looked at lB offsets against what is due by each party, and, in that 19 sense, I would say it is or should have been simple. Both 20 parties have obligations under the agreement that are 21 currently not being paid. 22 THE COURT: Well, I am primarily concerned 23 with the facts. And can't there be some stipulation on the 24 facts here? 25 MS. LONGO: I would assume so. Although my 2 ~5' "., -- , " ;,-~-'~' , "". ", ' -~ -'-" ,- 1- "-.,,~ o o 1 testimony would only take about five minutes. 2 THE COURT: Well, why don't you stipulate to 3 these facts if you can? 4 MS. LONGO: Okay. 5 THE COURT: There were obligations for a 6 certain amount of payments commencing on a date. 7 MS. LONGO: The property -- 8 THE COURT: And they were made or weren't 9 made and so forth and so on? 10 MS. LONGO: The property and separation II agreement was dated August 4th. l2 THE COURT: Ma'am, I am just suggesting that 13 you and Ms. Cognetti sit down and reach a stipulation. And l4 where you tell me you can't agree on a particular fact, then l5 I will get involved in it. But why don't you see if you can l6 do that first? 17 MS. LONGO: Okay. You want us to do that l8 right now, Your Honor? 19 THE COURT: Yes, ma'am. 20 MS. LONGO: All right. 2l THE COURT: We are in recess. 22 MS. COGNETTI: Thank you, Your Honor. 23 MS. LONGO: Thank you, Your Honor. 24 (Whereupon, a recess was taken from 25 1:38 p.m. until l:53 p.m.) 3 ~....~ ,',., " - . ..,I . . .,-~~ . .~ o o 1 THE COURT: Is there any kind of agreement on 2 the payments? 3 MS. LONGO: Yes, we -- 4 THE COURT: And when they were made and so 5 forth? 6 MS. LONGO: We have an agreement on quite a 7 few of the facts, Your Honor. 8 THE COURT: Pardon me, ma'am? 9 MS. LONGO: Yes, we have an agreement on 10 quite a few of the facts and when payments were made, Your 1l Honor. 12 THE COURT: All right. Did you write them 13 out? l4 MS. LONGO: No. We thought we would put it l5 on the record would be the easiest way, Your Honor. l6 THE COURT: Is there some document I can 17 refer to? l8 MS. LONGO: Sure. May the clients be seated, 19 Your Honor? 20 THE COURT: Certainly. Everybody can sit 21 down. 22 MS. LONGO: Your Honor, the petition for 23 enforcement, paragraph 1 -- the petition that I filed, 24 paragraphs 1 through 3 were already admitted in the answer. 25 They also admitted that the $500.00 a month payment was due 4 rl . -~- -~- .-~ '" , " -- " --' ~- ," ~ - '~'-' 1-- , -; :'-, -, ~ "',--~-'- ,_,-,"-',."-.- jm~iii~lli':' o o 1 until Alex's 18th birthday, and Alex is now ten years old, 2 and that he stopped making the payments on December l, 2003. 3 We also agree, in paragraph number 5, that 4 there was a breach provision in the property and separation 5 agreement, and that there have been counsel fees incurred. 6 And I have a bill and Ms. Cognetti has a bill. So, in 7 essence, my petition, paragraphs 1 through 6 are deemed 8 admitted. 9 MS. COGNETTI: Your Honor, I apologize. That lO wasn't the way I thought we were going to put what we II discussed on the record. I wrote down the stipulated items. l2 I am not sitting here prepared to say 1 through 6 are 13 admitted. 14 We just stipulated to about ten facts we can 15 read into the record, period. Not from the various l6 petitions, just ten facts. We have three documents for you, 17 if that is of any help. We have our two sets of counsel 18 fees and the sheets showing the payments, which should be of 19 some help. 20 MS. LONGO: I thought it would be easier if 21 you asked for something you could refer to. 22 THE COURT: I don't have that yet, ma'am. So 23 why don't you, between the two of you, if you agree on 24 certain facts, sit down and write them out between the two 25 of you, and then read them to me when you say this is what I 5 ~..~ "' -," I 'r ~, ~ ~, ,; ~ _ "'- _'_ ;c: - -,-_::,',,:-,;';7:-:,,-'_-'_c--- ., ,-' - ~- ^- , -, " - ~ '-~';: o o 1 agreed to? 2 MS. LONGO: That is what I thought we had 3 done. I just did it in a different order. 4 THE COURT: You haven't done it. 5 MS. LONGO: Okay. 6 THE COURT: Sit down and do it. 7 MS. LONGO: You want us to write it out by 8 hand? 9 THE COURT: Yes. Just look up at me when you lO two are agreed. That is all. I don't want to hear anything II until then. 12 (Discussion between the lawyers off the record.) 13 MS. LONGO: We agree the property and 14 separation agreement is attached to the pleadings as Exhibit l5 A, dated August 4, 2000. l6 We agree that the provision regarding the l7 $500.00 a month was in effect until Alex is l8. And Alex is l8 now ten years old. 19 THE COURT: Ma'am, you are telling me things 20 I already know from just reading the agreement. I want to 21 know what money was paid, when it was paid, and who is going 22 to be complaining about anything. 23 MS. LONGO: We have an exhibit, Your Honor. 24 MS. COGNETTI: Your Honor, what you have is a 25 sheet showing the payments which have been made and a sheet 6 ~ ..; --_-f ~ 1-:, ..~-, , "-.' ,;' . ~ o o 1 of my counsel fees and a sheet of Ms. Longo's counsel fees. 2 Additionally, we can stipulate that there 3 were no further payments made by my client on the, quote, 4 unquote, $500.00 provision after what is shown on that 5 sheet. 6 MS. LONGO: December 1, 2003. He did not 7 make the payment for December 1, 2003, and has not made any 8 $500.00 per month payments since then. 9 MS. COGNETTI: He is, however, currently lO subject to and paying a child support order pursuant to II court order in the amount of $l,055.00 per month. l2 THE COURT: Well, why am I dealing with any 13 child support order? l4 MS. COGNETTI: Because that comes into play l5 in our counterclaim, Your Honor. l6 l7 l8 19 20 MS. LONGO: We don't believe it does. THE COURT: In your counterclaim. MS. COGNETTI: Yes, Your Honor. THE COURT: Counterclaim for what? MS. COGNETTI: Your Honor, if I can sum up -- 2l and it may help to really put it in perspective for you -- 22 and then you can tell us where you would like us to go with 23 it, Ms. Longo raised the issue of primarily the stopping of 24 the $500.00 per month payments. I think it is safe to say 25 that in her initial petition that was the primary focus. 7 90 , - '" ~" , ,- ,~ ,., 0... - o 1 When we counterclaimed, Your Honor, it was 2 basically on four points. Number one, that my client had 3 overpaid the $500.00 per month during this time frame by a 4 sum in excess of $8900.00. 5 Number two, on page 5 of the agreement, there 6 is a paragraph that states that Ms. Grassmyer was to pay 7 $2000.00 to my client, l600 of which would have been due by 8 now, none of which has been paid. And there is some 9 question as to she doesn't think she owes it, but it has not lO been paid. II We are seeking credit for the 8900 and some l2 dollars. We are seeking credit for the $2000.00. We are l3 seeking our counsel fees. 14 And then our fourth issue, Your Honor, is 15 what goes to the child support. And that is under the page 16 3 paragraph -- I apologize there are no paragraph numbers -- l7 under the page 3 paragraph calling for the $500.00 per month 18 payment. My client believed at the time the agreement was 19 signed that those were in addition to his somewhat lower 20 child support payments called for later on in the agreement. 2l So when Ms. Grassmyer filed for additional 22 child support, that is when my client stopped making the 23 payments because he felt she was in contravention of the 24 agreement by going for more child support. 25 So one of our biggest disagreements here is 8 ql ~ "' , . - . -I -,;' - - , 3 ..~ ~ --', .. - '~: o 0...... . 1 whether those payments of $500.00 per month were actually 2 meant to be additional child support. If they were, then 3 they should be credited toward the order that she has now 4 gotten through Domestic Relations. 5 MS. LONGO: And that was already a 6 THE COURT: And you have an agreed upon 7 amount of child support in the beginning. 8 MS. LONGO: Correct, Your Honor. 9 THE COURT: She has subsequently come to lO court to try to get an increase in that amount. II MS. LONGO: Which she got, which went through l2 exceptions, which we have a final order on, Your Honor. l3 MS. COGNETTI: That is correct. l4 MS. LONGO: Where they raised the exact same 15 issue of the additional $500.00 per month. And that was 16 dismissed by the Court. 17 THE COURT: You now have a new child support l8 order. 19 MS. LONGO: Correct. 20 THE COURT: Effective date? 2l MS. LONGO: It is effective October l, 2003, 22 Your Honor. 23 THE COURT: Of which I suspect increased the 24 $500.00. 25 MS. LONGO: Substantially. 9 q~ ~~ ,-I , . '~ ~ , '--;.,-'~,; c o 1 THE COURT: A week or month. 2 MS. LONGO: To a thousand a week -- to a 3 thousand 55 per month, Your Honor. 4 MS. COGNETTI: Your Honor, what my client 5 would testify to is that when he agreed to the hundred per 6 week, plus the $500.00 per month on the page 3 deal, the 7 combined number was what he had found out from getting 8 information was really his child support obligation. 9 And, frankly, I think it is why Mrs. lO Grassmyer didn't do anything for so long because they both II knew it was child support. l2 THE COURT: I don't know. I don't know. l3 MS. LONGO: Well, Your Honor l4 THE COURT: I am going to read the agreement. l5 I am going from the agreement. l6 MS. LONGO: The agreement clearly says it was l7 in lieu of alimony. It had nothing to do with child l8 support. And that issue 19 THE COURT: Ma'am, ma'am, you interrupt me at 20 your peril. 2l MS. LONGO: I'm sorry, Your Honor. 22 THE COURT: I don't think child support has 23 anything to do with whatever I am hearing today. Child 24 support is always subject to increase or decrease regardless 25 of what the parties say in any child support separation lO q, ~,=~~ ,. '>- ~,," -- ',',;;'+. '( '" " 0.., .~< o 1 agreement. I think that is the state of the law. 2 You disagree, ma'am? 3 MS. COGNETTI: Your Honor, if what the Court 4 is saying is did she have a right to file for modification, 5 we absolutely agree, Your Honor. 6 THE COURT: All right. 7 MS. COGNETTI: What we are saying though -- 8 and this goes to a parol evidence issue -- Your Honor, when 9 they signed the agreement, he took the 500 in combination 10 with the hundred per week or 400 -- 11 THE COURT: I don't know what he did. l2 MS. COGNETTI: Okay. 13 THE COURT: I don't care what he did. I can l4 read what they both did. l5 MS. COGNETTI: Okay. Probably our bigger l6 concern is when he made payments under the paragraph on page 17 3, the agreement called for $500.00 payments, and he paid 18 upwards of 732, 754, he paid more than that each and every 19 month for somewhere between 36 and 40 months. 20 THE COURT: Can I assume that the mortgage 21 payment was somewhere around $730.00? 22 MS. LONGO: Correct. 23 MS. COGNETTI: Those amounts on that sheet, 24 Your Honor, I think they will agree, are the exact amount of 25 the mortgage for those months. 11 q; 1-!-- . I .,' "-'.-;--, I' , '-.. ,'". -,,---,:,,',--'-,- .' -~~- '-", o o 1 THE COURT: March of 2002 it is payment of 2 768, the next month is 750, the next month is $732.35. Is 3 there some late charge in there, or what is going on? 4 MS. COGNETTI: Your Honor, I believe that the 5 varying amount had to do with differences in the escrowing. 6 THE COURT: All right. 7 MS. COGNETTI: But as you see if you look at 8 the far right column, August of '03 was the last seven 9 hundred some dollar payment because it was at that point in 10 time that Ms. Grassmyer then re-financed the mortgage on the 11 home that had been deeded to her some years earlier. And 12 then he went back to the $500.00 payment. 13 THE COURT: Well, she had every right to do 14 that. 15 MS. COGNETTI: Yes, Your Honor. I am just 16 pointing it out to the Court that that is why the payments 17 then went back to the 500, because at that point, he didn't 18 have to worry about the mortgage. 19 THE COURT: I don't care. Why should I care? 20 So for any particular reason that he had, he chose to pay 21 the full amount of the mortgage starting in August, 2000. 22 Is that true, ma'am? 23 MS. LONGO: Absolutely, Your Honor. 24 THE COURT: Is that true? 25 MS. COGNETTI: Yes, Your Honor. 12 q5 n " ,-- " --,[-'" '-.;,0 ,_ -,~ ',_'. _ _ <, "~_ -, -c. 'i '--'_~_e,;, o 0.... . ." 1 THE COURT: He continued to do that through 2 August, 2003. Is that true, ma'am? 3 MS. LONGO: Absolutely, Your Honor. 4 THE COURT: Is that true? 5 MS. COGNETTI: Yes, Your Honor. 6 THE COURT: Why should he not get credit now 7 on any continuing $500.00 payment on that mortgage, ma'am? 8 MS. LONGO: Because he did that unilaterally, 9 without my client's agreement. He unilaterally modified the 10 property and separation agreement. He took it upon himself 11 to make the full amount of the mortgage payment. He took 12 the credit for the interest on his income taxes. He did 13 that unilaterally with no agreement from her. He could not 14 unilaterally modify the agreement to now three years later 15 look for some kind of credit that they never agreed upon, 16 that he did unilaterally, and that he benefited from. 17 MS. COGNETTI: Your Honor, I guess -- 18 THE COURT: Do you have case law to support 19 your proposition? 20 MS. LONGO: Certainly, Your Honor. 21 THE COURT: What is it? 22 MS. LONGO: I did not bring a memorandum with 23 me today, but I will certainly get you one, Your Honor. The 24 law says that you cannot unilaterally modify property and 25 separation agreement. The agreement itself says it cannot 13 qeo .,8 . ,:.-1,.:, ."c.', ,~,-- , 'O-"L o o 1 be unilaterally modified, and it must be modified in writing 2 if the parties agree to modify it. So he did this at his 3 own peril. 4 It never became an issue. Three years go by 5 where he did this allan his own, claimed the interest on 6 his income taxes, got that benefit, did it allan his own. 7 And it was only when she filed for child support, all of a 8 sudden, when that order came out, whoops, now we have a 9 problem. 10 MS. COGNETTI: Your Honor, actually it wasn't 11 when she filed for child support. 12 THE COURT: Pardon me? 13 MS. COGNETTI: It wasn't when she filed for 14 child support that he raised the issue of the credit. It 15 was formally raised in our answer to their petition for 16 enforcement. 17 But during these three years, especially more 18 so toward the end, he had been having conversations with 19 her, as he will testify, that he was asking her to pay the 20 difference. 21 At no point earlier on did she seek to 22 re-finance the mortgage and have it put in her name. At no 23 point did she tell him, oh, gee, you don't need to do this 24 for us. 25 And when Ms. Longo said he got the benefit of 14 07 : o. -.,.,,-, ~ ~ , I"" ,-.-, -:" .>, -;'-?:" -- __--~,1' i"",' "-'I .1 o o 1 it, other than the taxes -- and I have to assume that is 2 what she is talking about -- he did this for two reasons; 3 number one, his young son was living in that home and he did 4 not want it foreclosed upon. And, number two, because since 5 she had not re-financed, she had not paid the mortgage, that 6 would have ruined his credit rating, affecting his ability 7 to go forward with any purchases of his own. But he had a 8 vested interest in keeping that roof over his son's head. 9 She accepted this money I mean you can 10 turn the tables on this argument. She accepted this money 11 for three years, never said, oh, please, don't pay it. Or, 12 gee, I will pay you back, or let me do it. She just allowed 13 him to keep making these payments to the mortgage company, 14 and took the benefit and the fruits of those payments. 15 MS. LONGO: And was taking much less in child 16 support. 17 THE COURT: She is saying he is a volunteer, 18 and if he wants to volunteer, fine. What is the case law 19 that says he should get credit for being a volunteer? 20 MS. COGNETTI: Case law is that she -- 21 volunteer would be one thing. But he made these payments, 22 she knew about them, she accepted them. She accepted the 23 benefit of the payments. And, therefore, she cannot now 24 claim gift of a sense that he shouldn't get credit back. 25 She knowingly accepted these excess payments without doing 15 c{~' f, ,'- . __ _~ '-~~ 0_ :..--1 . "--"-,>-,"~,,,,," . '""'.;; o c 1 anything about it. 2 THE COURT: So what? 3 MS. COGNETTI: He should be given credit for 4 that money going forward, because he paid above and beyond, 5 and he paid to her benefit. 6 THE COURT: You haven't answered the 7 volunteer question. 8 MS. COGNETTI: He paid them voluntarily, I 9 can't deny that. Nobody put a gun to his head to do it. He 10 had very good reasons for doing it and felt it was 11 absolutely necessary. 12 THE COURT: Well, the reasons are the roof 13 for his son and ruining of his credit liability. So he did 14 it evidently without any knowledge that the bank said the 15 payments are late. Do you have any kind of record on that? 16 MS. COGNETTI: The payments were not late, 17 Your Honor. 18 THE COURT: Well, so he started this before 19 he had a reason to fear that something was going to go 20 haywire. 21 MS. COGNETTI: At the point which he asked 22 her to pay him the excess, or to take care of this herself, 23 her only response was to say, you know, you are pressuring 24 me to re-finance, which was kind of nonresponsive to him, 25 his dilemma. 16 qq ~, .- ,- ~ __ - &. ,- - '.-_ __--0 -,. .' L~_, o _,;__" J "" ,-,',,-' .:-,,-'.,;- ;:...) o o 1 THE COURT: So what? 2 MS. COGNETTI: I believe, although it was not 3 something that I had put in the memo -- and I am happy to do 4 it, as is Ms. Longo -- I believe there is case law that says 5 if she has been the beneficiary of his kindness, generosity, 6 et cetera, that she cannot now turn around and turn that 7 against him, and that she absolutely would have an 8 obligation to repay that. 9 THE COURT: You may well be right, ma'am. 10 MS. LONGO: Well, Your Honor, that is the 11 whole issue -- that is the whole issue before you today. 12 And if Ms. Cognetti thought that was important -- I do not 13 believe there is any case law that supports that argument 14 whatsoever. I could not find any, and I did a search. And 15 Ms. Cognetti came here with a memo, and yet did not address 16 really the only issue that is before you. 17 You know, he started this in August of 2000, 18 when they signed the property and separation agreement. He 19 just unilaterally changed the mortgage statement to go to 20 his home, and he started paying it right from day one. And 21 he knew that he was getting a great deal on this P and S 22 agreement, paying very low child support and she totally 23 THE COURT: I don't know anything about that, 24 ma'am. I don't know what a good deal is. 25 MS. LONGO: But you do know in the agreement 17 100 8; ~" "" -I. ",- c 0,'., .. 1 it says she gave up any right to alimony. 2 THE COURT: So what? 3 MS. LONGO: It says that the $500.00 a month 4 payment was in lieu of alimony. 5 MS. COGNETTI: No, it does not. 6 MS. LONGO: Yes, it does. 7 THE COURT: Well, she got the bulk of the 8 property and she got the house. Why should I question their 9 dealings now? 10 MS. LONGO: You should not. And that is my 11 whole point, there is no change to this agreement 12 whatsoever. 13 MS. COGNETTI: That is what we are asking you 14 to do is change this agreement and give him credit for 15 something he did voluntarily. 16 THE COURT: Well, I am not about to take 17 testimony on what he might have been thinking at a 18 particular time and what he did because he is free to say 19 anything now. And it is clear that he did it on his own, 20 cause I don't have anything in the record to show otherwise, 21 and he did it without any knowledge that the bank was going 22 to take any action. Is that true or not true, ma'am? 23 MS. COGNETTI: That is correct, Your Honor. 24 THE COURT: All right. So then the question 25 will be whether case law says that she has to give him 18 ._------'" ,,-'" ,,-- -,--"", ~ ""'~.~;:~'kj 101 5 ,'''",- c';, L_ ,. -Un ",~ '- _.- _c ,"" _"_~ o o 1 credit for these excess payments over the $500.00. 2 The second question has to do with her 3 repayment to him of 2000 bucks over $40.00 a month. Is that 4 right? MS. COGNETTI: That is correct, Your Honor. 6 THE COURT: And it is alleged that she hadn't 7 paid anything. Is that true? 8 10 11 12 13 14 15 16 17 18 9 MS. LONGO: No, Your Honor. THE COURT: No, it is not true. MS. LONGO: No. THE COURT: She has paid. MS. LONGO: The original deal was for the first six or seven months of the agreement, during the term of the agreement. THE COURT: Where, where do I go in this? MS. LONGO: In the P and S agreement. THE COURT: What page, ma'am? MS. COGNETTI: 5, Your Honor. Bottom of page 19 5. 20 21 22 23 24 25 THE COURT: Okay. MS. LONGO: She was supposed to pay $40.00 per month. THE COURT: Yeah. MS. LONGO: Their agreement started that he would take $40.00 out of her child support. 19 I OJ. , ;.-. ". ,.~ ~" c__.,_ , >'--,,' - __ -,-",-, _,c- ..;;'''- ;::--j c ~ v 1 MS. COGNETTI: Excuse me. Where is that? 2 MS. LONGO: I am talking about what the two 3 of them agreed to. 4 THE COURT: Ma'am, ma'am, I just told you, I 5 am reading the agreement. I am not going by any attempt on 6 either one of them to change it right now. 7 MS. LONGO: No, no, I am not talking about 8 right now. We will call him as if on cross. You already 9 addressed whether or not he did what he did unilaterally. 10 We will call him as if on cross, and I believe he will admit 11 that he agreed to forgive that $2000.00. 12 THE COURT: Period. 13 MS. LONGO: Period. 14 THE COURT: Is that going to be his 15 testimony? 16 MS. COGNETTI: Absolutely not, Your Honor. 17 THE COURT: All right. 18 MS. COGNETTI: Absolutely not. And his 19 testimony will further be when he sat at the support 20 conference, she stated to he and I that she thought she had 21 paid it. 22 THE COURT: I am not going to get into that, 23 ma'am. If you have checks that shows she has paid this 24 somehow, produce them. 25 MS. LONGO: He took them -- he took the 20 {o3 . ,., ;., I, , '\ " ""c'--uur~i c o 1 amount, the $40.00 a month, out of his child support payment 2 to her. 3 THE COURT: Do you want to produce the 4 support records then? 5 MS. LONGO: He wasn't paying support through 6 Domestic Relations. He was paying it directly to her. I 7 would have to subpoena his checks back through 2001. He 8 was -- 9 THE COURT: So you are going to say that the 10 support check, which didn't go through Support Court -- II MS. COGNETTI: Correct. 12 MS. LONGO: It did not until just recently, 13 Your Honor. 14 THE COURT: All right. 15 MS. COGNETTI: Your Honor, the checks came 16 from -- 17 THE COURT: From? 18 MS. LONGO: From him. 19 THE COURT: From him to her. $100.00 a week. 20 And you are going to show me that from every check that 21 started when her obligation began, January 1, 2001, it is 22 $600.00 instead of $100.00. 23 MS. LONGO: One out of every four, Your 24 Honor. 25 THE COURT: Oh. 21 {of -'" , .~ . <.1-,:' . " ~';' ,,: - ," ..-~~J c o 1 MS. LONGO: Only once a month. 2 THE COURT: Oh, Ms. Cognetti. 3 MS. COGNETTI: Your Honor, if I may, because 4 now that is now the third or fourth version of the answer to 5 my claim for the $2000.00. 6 THE COURT: Well, maybe we will get to the 7 correct response one of these times. 8 MS. COGNETTI: Cause I had -- 9 THE COURT: How about the checks? 10 MS. COGNETTI: Number one, Your Honor, I know 11 nothing about it. Number two 12 THE COURT: Well, why don't you ask your 13 client? 14 MS. COGNETTI: I can. But give me two 15 seconds. I asked recently and I asked previously of Ms. 16 Longo if there was any evidence of repayment, to let me know 17 so that we could look into it and credit her client, if need 18 be. I was given nothing. 19 THE COURT: Okay, we will take a short recess 20 while you -- 21 MS. COGNETTI: Thank you, Your Honor. 22 THE COURT: ask him about this. 23 MS. LONGO: Thank you, Your Honor. 24 THE COURT: Please, ladies, stop thanking me. 25 Don't thank me. 22 (D:) .~ . " . ; --,..', ~-- 1-..-- " -'-" d" ,__,_~-' "" , " "'-:;j C 0 1 (Whereupon, a recess was taken.) 2 MS. COGNETTI: Sorry, Your Honor, I had a 3 little water accident out here. 4 THE COURT: Oh. On the $40.00. 5 MS. COGNETTI: When we broke, Your Honor, I 6 thought what I was looking for was from the bank records 7 that we do, in fact, have with us today. 8 I thought Ms. Longo had been saying that her 9 client's position was that as opposed to a hundred, he was 10 giving her 60, subtracting the 40. 11 THE COURT: Once every four checks. 12 MS. COGNETTI: Right. 13 THE COURT: That is what she did say. 14 MS. COGNETTI: Okay. I have bank records, 15 other than two missing months, I have bank records from 16 basically November, 2000, up through the present. And 17 although I can't show for some of the earlier statements who 18 the checks were written to, I have a complete listing of all 19 of the checks out of his account, and there are no $60.00 20 checks. 21 Now, later on I have the -- later on the bank 22 is able to copy the checks for me because at some point they 23 started sending their statements that way. But in the early 24 months, I can just show that there are varying amounts. 25 There are many hundred dollar checks each month, but there 23 Ide , -'! >," 0' _ "~I '--'" '-',; \;;) c;" -'-., c o 1 are no $60.00 checks in any month. And I am missing two 2 statements out of four years. But then Ms. Longo clarified 3 for me that apparently this only occurred for a few very 4 short months. 5 6 7 8 9 10 11 MS. LONGO: Before he agreed to forgive the clebt, Your Honor. THE COURT: Well, how much time are you claiming here? MS. LONGO: Well, I can't tell from anything that she has here. To the best of my client's recollection and, again, this was three years ago, Your 12 Honor -- to the best of my client's recollection, he did 13 this for three or four months, at which point he said forget 14 it, the debt is forgiven. 15 16 17 THE COURT: So at best it is 120 or $160.00. MS. LONGO: Correct, Your Honor. THE COURT: And for the first three or four 18 months, starting January 1, 2001, you don't have anything in 19 your hands at the moment to show one way or the other. 20 MS. COGNETTI: Oh, Your Honor, I go back to 21 November of 2000. I am only missing two statements that 22 whole time period. 23 THE COURT: Well, January 1, 2001, is the key 24 starting date. 25 MS. COGNETTI: The January 1, 2001, Your 24 { o~l ._~__ '.L_, y, ,,,),,,,,,'. I' -.. N'~"W- -'-,'-i "_~ ',-:.,- ;,.,j,,,,,,"='o, , _ . '..~--~ >-;.; o o 1 Honor, is the one that took the hit with the water, but it 2 is still here. And it shows many checks made out in the 3 amount of $100.00, and no checks in the amount of $60.00 at 4 all. 5 MS. LONGO: The statement she is referring to 6 only goes up to January 3. There is one check for $100.00. 7 It stops after that. 8 THE COURT: We can settle this by going back 9 and getting the checks for the first four months, if it is 10 all about 120 or 160 bucks. 11 MS. LONGO: Correct, Your Honor. 12 THE COURT: That is what you want? 13 MS. LONGO: Absolutely. 14 THE COURT: All right. For 160 bucks, looks 15 like you got some work on your hand. 16 MS. COGNETTI: Your Honor 17 THE COURT: Get that and we will -- however 18 they keep them, laserfiche or whatever it is they do, and we 19 will come back. 20 MS. COGNETTI: Your Honor, it would be our 21 position that since this is Ms. Grassmyer's position, number 22 one, it has only come up today, and I have asked for proof 23 that they be responsible for any fees that we are charged by 24 Commerce Bank for having to do this. 25 THE COURT: Well, that may be a reasonable 25 t .", Ii: jl)\J ^" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .~ ~ -1'-- --'"-,-,, -'-'- - ~- ,'- o o request. But I don't have to deal with it today. So-- MS. LONGO: In the interest of judicial economy, Your Honor, for $160.00, I think my client would rather have this resolved. She is without the $500.00 a month. This means a lot more to her. THE COURT: So you are acceding to the defendant's position. Is that what you are telling me? MS. LONGO: Correct, Your Honor. It is not worth it to her. THE COURT: Okay. Good. That is settled. So your counterclaim is for, what, $2000.00. MS. COGNETTI: Yes, Your Honor. THE COURT: All right. Well, that is going to be conceded. MS. LONGO: Well, Your Honor, we are not conceding the fact that my client breached the agreement in any way. He never asked for it. And I would like to put him on the stand because we do not want her to be found in breach of the agreement. He never asked her to make the payments. THE COURT: Well, I don't intend to hold her in contempt, ma'am, or anything like that. MS. LONGO: It does, Your Honor, if he forgave the amount. THE COURT: Well, I told you both earlier 26 " ,;,:-" -~:- "'''''ti I Oel -,--, "",'.-- ,:'c'-.--", " 'I , ~I , 0', , o 1 that I was not going to take testimony, and you vigorously 2 agreed with me not to take any testimony, ma'am, as to what 3 anybody was thinking. And now you want to throw that out 4 the window. I am not going to do it both ways, ma'am. You 5 just conceded she owes 2000 bucks. 6 MS. LONGO: I understand that, Your Honor. 7 THE COURT: That is settled business, as far 8 as I am concerned. 9 MS. LONGO: On the issue of whether or not 10 the agreement was modified, Your Honor, it doesn't have 11 anything to do with the parol evidence rule. It has to do 12 with the modification after the agreement was entered into. 13 This has to do with his forgiveness of that debt. 14 THE COURT: You want me to foreclose him from 15 telling what is on her mind, and now you want me to allow 16 you to tell me what is on her mind and what he allegedly 17 said, which I suspect he is going to deny. Ms. Cognetti has 18 indicated to that effect. Ma'am, I am not going to do it. 19 The $2000.00 is history. She owes it and she 20 is going to pay it in some fashion. 21 The last question is the volunteer question. 22 We can settle that with case law. Ms. Cognetti has already 23 given me something on the case law, and I am not sure 24 whether she has answered that particular question or not. 25 MS. COGNETTI: No, Your Honor, I don't think 27 ( ID , ~- ~~ -"- .' '-"- .~- -- .J -~ 0, ~ o 1 I have. 2 THE COURT: All right. How much time do you 3 want to answer that? 4 MS. COGNETTI: Well, can it be by this 5 Friday? 6 THE COURT: Ma'am, you take as much time as 7 you want. Tell me when you are going to respond. 8 MS. COGNETTI: Two weeks, Your Honor. 9 THE COURT: To the volunteer question, or 10 however it is that you want to characterize his position in 11 making him whatever it is you want to characterize him as, 12 ma'am. 13 MS. COGNETTI: Can I throw out a suggestion 14 and see if both counsel can perhaps agree to streamline this 15 a little bit? How about if we both take whatever time 16 works, two weeks, three weeks, submit a no more than an x 17 page memo strictly on the area of whether he should get the 18 $8900.00 credit for the volunteer payments. How does that 19 work? 20 THE COURT: Well, yeah, that has been my 21 term, maybe you want to call it unjust enrichment. I don't 22 know how you want to characterize the whole thing, but it is 23 in the context of payments from one ex to another ex, and 24 which should narrow the search of the law for you as opposed 25 to the business world. 28 l L i " , ~ '" "'. ..",-:-;",'",--- " Ci' o o 1 Are you on the same page as what I am 2 thinking here, Ms. Cognetti? 3 MS. COGNETTI: Yes, Your Honor. 4 THE COURT: How about you, ma'am? 5 MS. LONGO: I am, Your Honor. Two weeks is 6 fine with me, Your Honor. 7 THE COURT: Two weeks. 8 9 10 11 12 13 14 MS. LONGO: That is fine, Your Honor. 15 THE COURT: Well, I may have to ask you to 16 respond after I get them, but we will have to deal with that 17 when it comes up. 18 (The following Order was entered.) 19 AND NOW, April 5, 2004, the parties having 20 appeared in open court together with their respective 21 counsel, and having submitted to the Court Exhibit A which 22 shows the husband's payments to the wife on a charge 23 commencing August 1 24 MS. LONGO: Yes, they were payments to the 25 mortgage company though, Your Honor, from August 1, 2000, MS. LONGO: Yes. THE COURT: You are both going to submit at the same time. MS. LONGO: Yes. THE COURT: Without the benefit of examining each others cases. 29 Ul {o\ -- . = , -- '.' l ..O'c' ~ , o o 1 through August 1, 2003. They were directly to the mortgage 2 company. They were not to wife. 3 THE COURT: -- which shows husband's payment 4 to the mortgage company beginning approximately August 1, 5 2000, through August 1, 2003, which each party is in 6 agreement as to the accuracy of the figures, and it further 7 showing payments from husband to wife of $500.00 from 8 September 1 through November 1, 2003, and no payment 9 thereafter, the Court deems this sufficient to make a 10 determination that no further evidence is necessary to 11 establish the amounts paid. In regard to the counterclaim 12 of the husband for repayment of the sum of $2000.00 on the 13 Master Card with Navy Credit, as contained on page 5 of the 14 marital settlement agreement, and the wife having admitted 15 that she has not made any payments as due under that, we 16 find in favor of the husband's claim for such amount as may 17 be due to this time. The Court will later reconcile that 18 amount due in the final order to be made in this case. The 19 Court not having entertained any offer of testify from 20 either side on their intentions regarding the interpretation 21 of the property and separation agreement, because the Court 22 feels that the agreement is clear and concise and can be 23 interpreted without the need for parol evidence, the Court 24 will decide as a question of law whether the husband shall 25 get credit for excess payments made during the times in 30 -',-- ; ';"~~;t~ llj ~.- :1' , <~ o o 1 question or whether he will not get such credit. Each 2 counsel, at their suggestion, will be given until close of 3 business on Friday, April 16, 2004, to submit briefs on this 4 particular question. 5 By the Court, 6 /s/ George E. Hoffer, P.J. 7 THE COURT: What else, ma'am, is unresolved 8 here, Ms. Longo? 9 MS. LONGO: The only other issue would be the 10 breach provision. 11 THE COURT: The what? 12 MS. LONGO: The breach provision of the 13 property and separation agreement. 14 THE COURT: Such as what? 15 MS. LONGO: Attorney fees, Your Honor. 16 THE COURT: Oh, well, that is a long way away 17 from any thought I have on this case. 18 Is there anything else? 19 MS. LONGO: No, Your Honor. 20 THE COURT: How about, Ms. Cognetti? 21 MS. COGNETTI: Two corrections, Your Honor. 22 I think if I was paying attention, when you were referring 23 to the payment on the exhibit, you may have said August 1, 24 of 2001, and you meant to say August 1, 2000. 25 THE COURT: I absolutely did. And if I said 31 - fo",~_ " -',-,,,,-, -,':'--;:'i11 ul- , ~ ,-l ~. o CD 1 that, Marie, you change that. What is the second? 2 MS. COGNETTI: And, Your Honor, I am cutting 3 it close, although I hope to get it done this week, but on 4 April 16, I am at the end of one week off. 5 THE COURT: Oh, I thought that is what you 6 both told me. 7 MS. COGNETTI: If I could make it two full 8 weeks, close of business on a Monday. 9 THE COURT: The 19th. 10 MS. COGNETTI: Yes, Your Honor. 11 THE COURT: Absolutely I can. 12 MS. COGNETTI: Thank you, Your Honor. 13 THE COURT: Monday, the 19th of April. We 14 are in recess. 15 MS. COGNETTI: Thank you, Your Honor. 16 MS. LONGO: Thank you, Your Honor. 17 (Whereupon, the proceeding was concluded.) 18 19 20 21 22 23 24 25 32 '.-'-""\-:';1 "'.-'-".4:d , -- Il'" ,. v .0, -,,__, 'Or. ."". I -:,<"-;_, ;<,.i:,':-:" ~~, O..~.. '.' , 4) 1 2 3 CERTIFICATION 4 I hereby certify that the proceedings are 5 contained fully and accurately in the notes taken by me on 6 the above cause, and that this is a correct transcript of 7 same. 8 9 10 11 12 13 14 - - - - - - - - - - - - - - - - - - - - 15 16 17 The foregoing record of the proceedings on 18 the hearing of the within matter is hereby approved and 19 directed to be filed. 20 21 ~.~w , P.J. District 22 23 24 25 33 /" t Ltp. AIWIif'?, i~"~~"'l>l",!jl",~~' ~~"'~'L~~ilil\ll!iii~llYi"'_""""'c", .., ""i(''-'''''''''''''''''''''''.'''''' "',,, ~...."'.'..".'.'" ~f '~."."'." ,., . , ,,,' ... \: i i " 1\ ~'! VjN\;','\'V.,.s~~l'{jd 'l1\lll(")""\ .,-;-~rw\:rv" 1'- 1 ._"__ ' -," .J. ,"J (:S' g# lJ? :5 HV 0 I d3S IIOnZ AbV1CNDH10dd 3Hl :l0 :1"1.1,1(1,,0"1,1) __\.,)1,,1_',", .J ,,- -- ", ~--~. ~ ~- , '"',' -, "" . ~ ,-~-~..~",.~,~.$ """'-~"'~'!ID'--.=' ~ -~~'.~ ~ . -~o-,,~_-: ._~ - ~' .,..~~~,~'~ """Of.<cc,',",ild"'''' ." J. A02004/05 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.65.37 ELIZABETH Z. GRASSMYER, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ~6{/dLfa ~{! RANDALL S. GRASSMYER, Appellant No. 1114 MDA 2004 Appeal from the Order Entered June 30, 2004 In the Court of Common Pleas of Cumberland County Civil Division at No. 01-02452 BEFORE: BENDER, GANTMAN and JOHNSON, JJ. MEMORANDUM: FILED: March 16, 2005 Elizabeth Z. Grassmyer (Wife) appeals from an order entered June 30, 2004, that held that Randall S. Grassmyer (Husband) was entitled to restitution in the amount of $8,959.47 for mortgage payments made in excess of the contractual amount agreed to by the parties in their property settlement agreement (PSA). We affirm. The trial court set forth a concise recitation of the facts of this case as follows: The parties in this case, Elizabeth Grassmyer, Plaintiff, and Randall Grassmyer, Defendant, were divorced on October 1, 2001. They have a ten-year-old son, Alexander, who resides primarily with the Wife. Prior to the final divorce decree, the parties executed a Property and Separation Agreement, incorporated into the divorce decree, which contained a provision mandating that Husband reimburse Wife $500.00 per month for his share of the mortgage payment until their son reaches the .J(",~ :- - L ~ ,d<, - ~-li:tnli- '-~ "~, ~ woo' .__O~.~ . " J. A02004/05 age of 18.e] Despite the PSA provision, Husband paid the entire mortgage amount directly to the mortgage company monthly from December 2000 through August 2003 with amounts averaging $720.00 per month. Wife did not reimburse him for the excess payments, nor did she formally agree to any modification of the agreement. Husband then paid $500.00 monthly from September through November 2003. After December 2003, Husband ceased any further payments to Wife, including any child support and mortgage payments. The agreement also mandated that Wife reimburse Husband $2000.00, payable as [sic] $40.00 per month until paid in full, for a debt on a Mastercard. To date, Wife has made no payments on the Mastercard debt, The mortgage provision at issue appears under a section in the PSA labeled, "Alimony, Alimony Pendente Lite, Support and Maintenance," and there is a separate provision mandating that Husband pay $100.00 per week in child support. There is also a provision prohibiting unilateral modification of the agreement. Husband indicates that he stopped making payments to Wife (and he paid directly) because that [sic] he feared she would not pay the mortgage, causing a foreclosure and a negative impact on his credit. Wife indicates that Husband benefited from paying entire mortgage amount by claiming the interest on his individual tax return. Trial Court Opinion (T.C.O.), 6/30/04, at 2-3 (footnotes omitted). 1 The pertinent paragraph in the parties' PSA states: HUSBAND and WIFE acknowledge that WIFE is waiving any claim for alimony in return for HUSBAND'S agreement to reimburse Wife the sum of $500.00 per month for HUSBAND'S share of the mortgage on the marital residence. HUSBAND shall pay to WIFE the aforesaid sum of $500.00 on the first day of each month beginning on August 1, 2000 and continuing on the first day of each month until ALEXANDER reaches the age of 18. The aforesaid payment due to WIFE shall continue regardless of whether or not WIFE chooses to pay the mortgage in full at some time in the future. PSA at 3, - 2 - "$-- .,-".' --"',::' Wi;;; .. -"" .~ , J 1 _'~. ~" J. A02004/05 Initially, the trial court determined that the terms of the PSA were unambiguous and that, therefore, parol evidence was not needed to ascertain the parties' intent. Then recognizing that the Divorce Code states that "a provision [in a PSA] regarding the disposition of existing property rights and interests ... shall not be subject to modification by the court," 23 Pa.C.S. ~ 3105(c), and with reliance on DeMatteis v. DeMatteis, 582 A.2d 666 (pa. Super. 1990), the trial court determined that Husband could not recover excess payments as a credit against other provisions in the PSA, e.g., child support. However, the court concluded that Husband proved that Wife was unjustly enriched by the excess payments made by him and that, therefore, he was entitled to recover from Wife the amounts he paid over and above the required $500 a month payment toward the mortgage.2 Wife appealed to this Court, and raised the following issue for our review: Whether the Lower Court erred by finding that ex-wife was unjustly enriched when ex-husband paid amounts on the mortgage that was secured by the marital residence over and above the amounts required in the Property and Separation Agreement? Wife's brief at 3. 2 The trial court also held that because Wife acknowledged that she had made no payments on the $2,000 credit card debt owed under the PSA, Husband was also entitled to recover that sum. We only note this claim because it was included as an issue before the trial court. However, Wife has raised no issue with regard to the $2,000 debt in her appeal to this Court. Therefore, that portion of the trial court's order is not before us. - 3 - j ~~" - " ~ I ,-1,",. <. ^'. '!'f":;, ., J. A02004/05 In reviewing issues that relate to the effect of a property settlement agreement, we are guided by the following: In Pennsylvania, we enforce property settlement agreements between husband and wife in accordance with the same rules applying to contract interpretation. A court may construe or interpret a consent decree as it would a contract, but it has neither the power nor the authority to modify or vary the decree unless there has been fraud, accident or mistake. It is well-established that the paramount goal of contract interpretation is to ascertain and give effect to the parties' intent. When the trier of fact has determined the intent of the parties to a contract, an appellate court will defer to the determination if it is supported by the evidence. Bianchi v. Bianchi, 859 A.2d 511, 515 (pa. Super. 2004) (quoting Lang v. Maske, 850 A.2d 737, 739 (Pa. Super. 2004)). "Further, where as here, the words of a contract are clear and unambiguous, the intent of the parties is to be ascertained from the express language of the agreement itself." Id. (citing Brosovic v. Nationwide Mut. Ins., 841 A.2d 1071 (pa. Super. 2004)). Wife first argues that the trial court ignored the dictates of DeMatteis, wherein the court held that "the parties' agreement ... retain[ed] its character as an enforceable contract" and that the Divorce Code "prohibited modification of the parties' agreement." DeMatteis, 582 A.2d at 672. Thus, based on this statement in DeMatteis, Wife asserts that the trial court could not give any credit to Husband "for payments made to the mortgage company outside of the terms of the Property and Separation Agreement" in - 4 - ~ ,~ - 1"-",, " , , 'u'iliilil~iii-,_ J. A02004j05 that such credit "would be a modification of the parties' agreement." Wife's brief at 7. Wife also argues that the trial court "did an end run around" appellate case law by applying the quasi contract theory of unjust enrichment. Id. at 8. She discusses the decision in Mitchell v. Moore, 729 A.2d 1200 (Pa. Super. 1999), a case that was cited by the trial court when it set out the elements of unjust enrichment. Wife contends that the Mitchell case is inapplicable because it involved "two men who resided together and were not protected by the divorce code and the case law that controls Property and Separation Agreements...." Wife's brief at 8. Essentially, Wife argues that a case like Mitchell should not be relied upon to allow the trial court to modify a PSA. We agree, but not for the reason that Wife suggests. Rather, we note that in Mitchell, the claim for restitution was based on the equitable theory of unjust enrichment because no express or written agreement existed. The Mitchell case indicates that "we may not make a finding of unjust enrichment ... where a written or express contract between parties exists." Id. at 1203. Since it is apparent that a written agreement, the PSA, is at the heart of this case, the reliance on the theory of unjust enrichment to provide a basis to reimburse Husband for his additional payments is in error. The arguments and case law relied upon by both parties to either support or defeat the application of the unjust enrichment theory does not contribute to - 5 - ~1' l.""""'_'J~ . ~.. ~h '. " 1_,- ,,~ ~~-'iW-iliLl.Ll~r~~ J. A02004/0S the resolution of this matter, and we are unable to affirm the trial court's order on the basis of unjust enrichment. We note that in response to Wife's arguments concerning the unjust enrichment theory, Husband emphasizes that Wife benefited from his overpayments and that it would be unjust to allow her to retain that benefit. Husband also asserts that unlike in the Mitchell case, where our Court held that the parties' services to each other during their relationship were gratuitous, the parties' relationship here was over. While Husband recognizes that the trial court found it could not allow the "overpayments to be used as a credit against Husband's other obligation under the PSA [as it] would have constituted an invalid modification of the PSA," Husband's brief at 13, Husband contends that it should be permissible for him to receive credit solely against the mortgage provision. Thus, Husband requests that his overpayment should be credited toward future payments on the mortgage, which would not affect the terms of the PSA as originally agreed to by the parties and would actually enforce the terms as intended. We agree that this reasoning promotes fairness for both parties and is an equitable resolution that stems from the language of the parties' PSA, i.e., in return for Wife's waiver of alimony, Husband is to pay $500 per month toward the mortgage on the marital residence until the parties' son reaches 18. First, we note that pursuant to 23 Pa.C.S. 9 3323(f), a court shall have full equity powers to protect the interests of the parties and - 6 - - " .~ == ,J __ - f"&., , J.A02004/05 promote equity and justice between them.3 See also Nicholson v. Combs, 703 A.2d 407 (pa. 1997) (equitable remedies are available in support matters). The recent decision in Spahr v. Spahr, 2005 PA Super 71 (filed February 22, 2005), provides additional support for the decision we make today. The husband in Spahr claimed that he had paid voluntary, direct support payments on a monthly basis for a finite period of time prior to the entry of a court order. The wife acknowledged the direct payments. Our Court held that in light of the parties' acknowledgment of the payments, the husband should have been given full credit for his payments so long as they can be documented. See also Bradley v. Bradley, 564 A.2d 504 (pa. Super. 1989) (awarding credit to the father for mortgage payments when not under order to do so). Specifically, here, Wife waived a claim for alimony in exchange for Husband's monthly payment of $500 toward the mortgage. Therefore, 3 Section 3323(f) of the Divorce Code states: (f) Equity power and jurisdiction of the court.-In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this part and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause. 23 Pa.C.S. 9 3323. - 7 - ,-*~~'"- -- - ~ - - i, ~. -" '> ,;jJl"lilH' " J. A02004j05 Husband's payment could be considered as made in lieu of a type of support, and since case law has confirmed the giving of credit for prepayment or overpayment in support matters, Husband should be entitled to a credit for his overpayment. As with many agreements for the payment of a finite sum of money over time, if one prepays, credit is given. Even in the context of mortgage loans, "where a mortgage note is silent as to the right of prepayment, there arises a presumption the debt may be prepaid." Citicorp v. Morrisville Hampton Realty, 662 A.2d 1120, 1122 CPa. Super. 1995). Most telling here is that Wife accepted the overpayment that relieved her of the responsibility to pay the agreed upon mortgage amount over the $500 and now she is against allowing Husband credit for that overpayment. The dictates of Spahr and Bradley and the concept of fairness require that Husband receive credit for his overpayment. However, we must remand the matter to the trial court to formulate the manner in which Husband should be credited with the overpayment, i.e., whether Wife should reimburse Husband in one lump sum, whether Husband's monthly payments should cease for a period of time, whether Husband should pay a lower amount for a period of time, or any appropriate plan the parties agree to or the court finds reasonable. Order affirmed. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished. - 8 - ~ '. J. A02004/05 Date: MAR l6 , 1:_, , --~ ':< !~i:I.':il~<; - 9 - Y~~,~!m'i!ii':"~\>'ij~fi:j\.jj'0:*m(hiilAA~iliI\"';,lriM""""~,,,';;".J,,--.,~,,,~,o' '.""'.L'-'!.iJ'4>.~,,!_,,&&.<iiitrW;;.llWl!~~tt;iilliiiijjlii:ljWJlI.j.""I~iiOJIj ~,-"",-~.' ~ ~..L./ .' ; JJ_ :ll[l~I!III" <" _"~ ~. ~~ ,~. M ~_~_~_O" _ ,~ ~"- '""'~ (") s; ~ -Ol1-~ L!JL;:,': 0S':~. r:' ~>~~ :;:'-'C 7 ~ .~u " .~ .~- .' ~ = = <:fI :P> " :::0 ", CO o ..... -l :I::;J;l ..' ~hi ~6 x.:f1 Q,o 6tn 'i>! 5J -< :t'" :J'1,: 'P. c..:> N "j~ '. ~ , ~~ ~, '-. ~UJ;t',";;:W~, " '- . ;,_. . ~."'- LOWER ALLEN TOWNSHIP In the Court of Common 'Pleas of Cumberland County, Pennsylvania VS, Judgment in favor of Plaintiff on _____________________ ________________________________ for $_:B_..(il9 01-6105 No. ________ CIVIL ._____________ Term, 19______ "___Gl1~_\)flt\_l\~__J3~~D1_________________ Bntered __Ql:'_tQQ~J;:__Z.54--2JlD-L---- LOWER ALLEN TOWNSHIP Plaintiff ._--~-----------------------------------------------------------------------------------~---------- in die above ]udgwt"nt, do app:>al. and acknowJedge thatApril 21, 2005 thia day have had and recf"ivcd and SANDRA A. SHANAMAN frOUI _ __ ______ __ __ _____ _ __ ____ __ ____________ -- -- ---- - - - - ---- ---- ---- -- --- -- - -------- --- - --- ----- ~ --- ------ the defendant in the above Judgment. full payment and saisfaction of the same. with int{'f('st and eosts, and desired that satisfaction therefore shall be entered upon the records thereof. And further, . CURTIS R. LONG do hereby au~o~ and ernpo~er________________________________________________----- . FOR US theProthonotary of said Court, to appear ___...________..___________________n____n______ and in OUR name and stead to enter full satisfaction upon the record of said Judgment, as fully and effectually, to all intents and purposes, as WE could were WE personally present in person to do 10. And for so doing this shall be your sufficient warrant of authority. In testimony whereof, have hereunto set our hands and seals this _______..._____________________________ day of _n___nn_n___________nn__n_nn_______n' A.D. (Seal) (Seal) State of Pennsylvania County of Cumberland, } (Seal) PenonaUy appeared before me, the subscriber, n__'!.!I.()~~__~:__y_~~~l\..IJ.!__~~_:____n_n___nn_______nn ASSISTANT TOWNSHIP MANAGER ____~~~~-~~ TOWNSHIP '~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~-:::-;l~:~~;~:-~:: above Judgment, and in due fonn of law ackno~ledged the within and foregoing Power of Attorney to satisfy the Judg- ment set forth, to be ac.t and deed, and desired that the ~m~ sh:lll be filed of record in the office of the Prothon- -- otary of the Court of Common Pleas of said County. . /} /7.1( In testimony whereof, I have hereunto set my hand and seal this _~2_.____ _nn_-.____ day of _Aj}1i.LL_____n______m_m___________ A. D. ~ c'?.()C;S- -lUlIla~._~"l~"l!',B'l!)&Dl: :l!lli:1!:'1.. MiCHEii-~=~~~* --,,~i)~ rn---nn -J./iIMirAllllrtr\lljl;'Cafrmll'~l'I!1~T ______nn My~,~ . 1.. 20Ctl . . (Seal) ii4~~~l",~-W.~""":d:l"f~'~iili"J;i~'rili\~K,,!j""ik,":J;"il*O!~.h.0ill;'"'r.>oHt,;(:;;;",',h,_''''~~'c-.N,,';,''':0:';~~illf;l~~~~iWii. It''''''''''=i. 1Jtf ~ ~/ ,;- "__ ~;Jf- ",,,",: 4 .,!it,,,,,,,_ u ,_~ : ~. ..' (s B+t . ,-,~'-~,--,' ,-"",,..- .-,... > > "'~ ,^, ~~.~. - '.6.liilliilt~"~~ " --........ "~!ti, (") ..... a = c: = ." s: "" ::::>> --l :gro :I::o !l1fT: -0 .0::...,,", ::0 ~fi1 ~? ,....., u')\.,- N 9.6 ~t: CD ~c ." :J:I~ :x 0:;0 .-M ><=2 .c_ c ~ ~ z 55 ::;! U1 O"l -< _1lI ~ ,= . ~" .1-'-,> ~,.;-.- '. "~ ',' "~ ~,,-- .r--- . ''-''<',., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW ELIZABETH Z. GRASSMYER Plaintiff v. NO: 01-02452 RANDALL S. GRASSMYER Defendant STIPULATION TO RESOLVE REMAND ORDER ENTERED BY THE SUPERIOR COURT ON MARCH 16, 2005 NOW COMES ELIZABETH Z. GRASSMYER, by her attorney, M. Lucile Longo, Esquire and RANDALL S. GRASSMYER, by his attorney, Maria P. Cognetti, Esquire, and agree to resolve the issues remaining after remand by the Superior Court on March 16, 2005 as follows: 1. The parties agree that the amounts owed from Elizabeth to Randall total Ten Thousand Nine Hundred Fifty-Nine Dollars and Forty-Seven Cents ($10,959.47) pursuant to the Superior Court Opinion dated March 16, 2005. 2. The parties agree that Randall owes Elizabeth Nine Thousand Five Hundred Dollars ($9,500.00) effective June 1, 2005, in accordance with the Property and Separation Agreement provision that requires husband to reimburse wife the sum of Five Hundred Dollars ($500.00) per month until the son reaches the age of eighteen (18). 3. The parties agree that Elizabeth will pay to Randall the sum of One Thousand Four Hundred Fifty-Nine Dollars and Forty-Seven Cents ($1,459.47) on June 1, 2005 representing the difference between the sums set forth above. Effective July 1, 2005, Randall will resume the payments required pursuant to the Property and Separation Agreement in the amounts of Five Hundred Dollars ($500.00) per month. " ,:, . , ' '~.... t. ',... 'Co, I'"". -:,.' _,' ,-,-:,z_.[, ':'0_'. '.....,' IN WITNESS WHEREOF we have set our hands and seals hereto on this Z. 11'->.. day of yv1fA~1 , ~&iG~~~WJ .~t~. RANDALL S. GRASSMYER - MARIA . COGNETTI, ESQUIRE 210 Grandview Avenue suite 102 Camp Hill, PA 17011 Attorney for Defendant ~~I!l"'~J~iirr~~~h."""M.;"':M"'''m'''l4a-.<{!l!liIi''~di;@~''''- ~ Iilur_'.~ " ,/,"','.', ~ ~ ~-'-'. . ~. ," ~t 0 "" = 0 C = " fOF s: ""'" "'"'0lT <- :2" fT'ifP c:: ---;;- ..~.{ z: n,p= ""'- _A Z,'" I -om (f)~ :06 -/' ,,' U) 0 r.'r"., 'I!~; <"'" '--~. )>C' -u 0::0 ;:(:;;;'(~ ::E: 5~ p- N c: Z s5 -4 U1 -< Ui .< E$ EO ;;. ,).',~-~~~>". _ "'''<:" __f, .~. ~.. ~--.'''7+~"<;,~-.,-~_,_",, ',"-." ,~> !l! -~ -, 1_ -- ., ,-... , ',--'. _,"] '0' _ ."... 1_ ". ~ ^ ~ _ i'-'" ;'-,.' " <' .-' ,'~,k ,'" -- ."~-,, ~,>,;~-,),;.~ ~~~."" "',~W,~~;~_ I:\Closed FiJes\Grassmyer\Pleadings\Praecipe to Withdraw Divorce.wpd July 25,2005 ELIZABETH Z. GRASSMYER, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA vs. : 01-02452 CIVIL TERM RANDALL S. GRASSMYER, Defendant : CIVIL ACTION - LAW : IN DIVORCE PRAECIPE FOR WITHDRAW AL/ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of the Defendant, Randall S. Grassmyer, in the above-captioned matter. By: OCIATES Date: F, I. 05 I, ESQUIRE Attorney LD. No. 2 4 210 Grandview Avenue, Suite 102 Camp Hill, PA 17011 Telephone No. (717) 909-4060 TO THE PROTHONOTA-,~Y: Kindly enter my appearance on behalf of the Defendant, Randall S. Grassmyer, in the above- captioned matter. Date: 7/1,'O/oS , 1 By: ~h~4~ RANDALL S. GRASSMYER, PRO SE 120 Oak Ridge Drive Halifax, PA 17032 (717) 362-1191 ,""",,, "- " ~ ,~..-,..;"."o.:.'~"""""-'~:" . , , .: ",i=;r"~,,,~""'h.'~ ~'~.1fL~ ,;.~"""'" ~~ <. .IIiI~ -'~~<< Co, 'd ',oN "'" ''',"~. so~ t-;. ....., 0 = <::; = ." "" :s.. ~ ~ c::: '-n11 G) , ,- j -em -00 ~ C=),J- - v ~'T; -.,"" ~~~~ ~, cjrn -. --~ W =0 .r:~~ -< "'.- J", __,~..",,-. >_" . -~..- ".-,,,--, ~_, _. '<' _c ~~_,_ '<-p'"" ,_ J_^ . ,~ # ~ ~~ '" j: "-<""'j " ,.t_,;;"." ~~~lDG~~AL ~ M. Lucile Longo, Esquire HONAMAN, LONGO & LONGO 15 N. Lime Street Lancaster, PA 17602 (717)397-5127 Attorney I.D. 67907 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW RANDALL GRASSMYER Plaintiff NO. 01-02452 v. ELIZABETH GRASSMYER Defendant ORDER ...~ AND NOW this e-j' day of C;~ 2005 upon consideration of the within Petition a rule was issued upon Respondent, Randall S. Grassmyer, to show cause why the prayer and the petition should not be granted, rule returnable at /l. LC:/l.J:ing l:li.L;}l1:::::J.uled Lhe dQ] of , 200:; a.L IV!. iD Courtroom No. for rl1F> r"1ll9grl",,,d '-County Courthouse, 1 C:n"rt-hn'1l?tg a{fll3.J?e., Cl;.1.Lliole, l?Pt J 701]. Zo ~'" o..f:.t--v S""''C.A-. Xr G..ft ""'......, .; p..J 1 .1"_ (IV</o.lr k .k....., '':5 . ATTEST: ...1...... (..A ;"I~ ....... By the Court: /JJ Copies to: M. Lucile Longo, Esquire . Maria P. Cognetti, Esquire >~~Q..-,?-v. O( K~~~ ~1-.~ 1!I~~~&gl4t"j.;:iW;i:.,_,",-fl@:i,,0i~~#mi~"'4~)~'-'\'&!$,ii--,:;;pt;(;;;ji;~Ww~~>dr~W~~jlili;~ n _ 6'[::..-/'--, ,. v'F II'~ '-11'1 I" . "71_ r'':' ',""/~I~rf 2fjn." " '-- !-/<)f~.'~'::;:~i<~~'?A,q,'i\.,! "Vi) Ii l' V"l ')~' " . (~t"J C,. I.)i! ,~-' /(//,--, /" "'1.1.h, ii ,j'! ..., . '1/ '''', . 1- .,' '.E\:'\',"~':":""I:' I,,' f , ;~:';1Fi~~LI;iV TV .<{3- ~' !.. Uij"m _..-,~,=~, " , . -~ .. ,,- - ,-=. "'~. ",",. __'" "" '-'""'"'_~,".., oF_ _, '111Iir_1 ", liB ,~~ ~~--'jlllC1"" ~'-o . '.. ~, ---, 'I @ --"""-,,. ._,r._', . ",-ri,' '-, , 'e', '- i'~-~,,_ ,_' _,,_,,-_ lit:'. M. Lucile Longo, Esquire HONAMAN, LONGO & LONGO 15 N. Lime Street Lancaster, PA 17602 (717)397-5127 Attorney I.D. 67907 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW RANDALL GRASSMYER Plaintiff NO. 01-02452 v. ELIZABETH GRASSMYER Defendant PETITION FOR CONTEMPT AND ENFORCEMENT OF PROPERTY AND SEPARATION AGREEMENT Petitioner, ELIZABETH L. GRASSMYER, by and attorney, M. Lucile Longo, Esquire, hereby files this avers in support thereof as follows: 1. Petitioner is Elizabeth L. Grassmyer who currently resides at 98 St. Johns Road, Camp Hill, Pennsylvania 17011. 2. Respondent is Randall S. Grassmyer, Plaintiff in the above- captioned action. 3. On March 16, 2005 following an Appeal to the Superior Court by Elizabeth Grassmyer, the Superior Court remanded the case for proceedings consistent with its memorandum decision of that date. On June 9, 2005, the parties entered into a Stipulation to resolve the remand order, a copy of that Stipulation is attached hereto and made a part hereof as Exhibit A. 4. In accordance with the terms through Petition her and Grassmyer paid to Randall Grassmyer about June 1, 2005. 5. Paragraph 3 of the aforesaid Stipulation required Randall Grassmyer beginning on July 1, 2005 to pay to Elizabeth the sum of $500.00 per month as required under the terms of the Property and Separation Agreement that is filed of record in this action. of the Stipulation, Elizabeth the sum of $1,459.47 on or . ~ . I",,~ ;" ' ,-,. ,-" -.., '<,',~ ,," 6. As of July 13, 2005, Elizabeth Grassmyer had not received the aforesaid sum as required pursuant to the Stipulation signed by the parties. 7. Pursuant to the terms of the Property and Separation Agreement, Respondent, Randall Grassmyer, was responsible for payment to Elizabeth for any damages including Court costs and attorney's fees, if any, provision in the Property and Separation Agreement was breached. 8. Petitioner has incurred counsel fees in the preparation and filing of this Petition due to Randall Grassmyer's breach of the Property and Separation Agreement and the accompanying Stipulation. WHEREFORE, Petitioner requests your Honorable Court enter an Order: a. ordering Respondent to pay to Petitioner the sum of $500.00 immediately plus interest on said payment at the rate of six (6%) percent per annum as penalty for failure to pay said payments in a timely fashion; b. ordering Respondent to pay counsel fees in connection with this Petition pursuant to the breach provisions of the Property and Separation Agreement; c. and for such other relief as the Court deems appropriate. _. x,,_, ,~ ,--"-~ " ._1 ,,: c, , ::. <"',' - .;,\ ;~ -" ',,'.;"" ;. "l CERTIFICATE OF SERVICE I HEREBY CERTIFY that petition for Contempt and Agreement was served by addressed as follows: Maria P. Cognetti, Esquire 210 Grandview Avenue Suite 102 Camp Hill, PA 17011 a true and correct copy of the foregoing Enforcement of Property and Separation , first class mail, postage prepaid, RESPECTFULLY SUBMITTED, M 1 N. Lan (717) 397-5127 Attorney I.D. 67907 DATE: l \ I q \ 0'-:; \'. '" " , ,-,".,>-, -0 '~ ,-,,,I. -' -- ,"_, '= ,--' "-, ;" ,",,'j-- ,- -. , '__._'~ """ c1"'~'F.:r.',,,,-,--,,~,'" , \ <--, "". . ~--=->--..-o"",.~-, "EXHIBIT A" j IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW o ~,~ {"1'1r'r, ',;:::'""'1-- 7~i.. r(\ -. -;.-.' *t~ .'-.'" ::::} -< L . 0' ELIZABETH Z. GRASSMYER Plaintiff v. NO: 01-02452 RANDALL S. GRASSMYER Defendant STIPULATION TO RESOLVE REMAND ORDER ENTERED BY THE SUPERIOR COURT ON MARCH 16, 2005 ...., = = CJI '- c: ;E o ., -I Il""'l fY)r -,JIll ;39 --,9 i~ -< I ill -u 3 ['..> ()1 Ul NOW COMES ELIZABETH Z. GRASSMYER, by her attorney, M. Lucile Longo, Esquire and RANDALL S. GRASSMYER, by his attorney, Maria P. Cognetti, Esquire, and agree to resolve the issues remaining after remand by the Superior Court on March 16, 2005 as follows: 1. The parties agree that the amounts owed from Elizabeth to Randall total Ten Thousand Nine Hundred Fifty-Nine Dollars and Forty-Seven Cents ($10,959.47) pursuant to the Superior Court Opinion dated March 16, 2005. 2. The parties agree that Randall owes Elizabeth Nine Thousand Five Hundred Dollars ($9,500.00) effective June 1, 2005, in accordance with the Property and Separation Agreement provision that requires husband to reimburse wife the sum of Five Hundred Dollars ($500.00) per month until the son reaches the age of eighteen (18). 3. The parties agree that Elizabeth will pay ~o Randall the sum of One Thousand Four Hundred Fifty-Nine Dollars and Forty-Seven Cents ($1,459.47) on June 1, 2005 representing the difference between the sums set forth above. Effective July 1, 2005, Randall will resume the payments required pursuant to the Property and Separation Agreement in the amounts of Five Hundred Dollars ($500.00) per month. -~.. '."' , , , . ,-~~ RANDALL S. GRASSMYER -~ , 1--"- '-: .-., ";0"" ,'....--"". -,---~-..;;;.ill<:lU.:d~- , ~'""~-J=".",'_'i_._;" set our hands and seals hereto on MARIA . COGNETTI, ESQUIRE 210 Grandview Avenue Suite 102 Camp Hill, PA 17011 Attorney for Defendant W~ ' "~' ~ ~ -,- "' _'r , " --, , ;k'~""-~ ~,-,:: VERIFICATION I verify that the statements in the foregoing petition for Contempt are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities. DATE: l~~ ~~1!re~ _0" ~!&~~i!~Ill@.J;r",~,,,_jf.io;~~M~~J-illl~\l;{,li.'ijl)i;M;i;j'~'H.\,";-""'j"~';"'~it$l-",ll1W~Milt'.d!i,l-d-IT~~I-_'1ia1i ] ~" ~ct- " < ..~~""-~~,,",,,- - ~ ~~ ,'"' 0\ ~ ~ lfiil--' ~l,l,';: n .~ n c <: l;__j ", = =' "'" '-- C r"- ~ --1 ::r: nl::2 -om -DO Scj S~~ ;'=fTi "--' --..\ :b -< N o "'TJ _;r,.. Co,) t~ ~ 'Q,.,~ ~~ - ~ >~"-' ~ ",' - ,'" -."c,'_ ,',-,...'.--L..- ': ... ORIGINAL r M. Lucile Longo, Esquire Honaman, Longo & Longo 15 N. Lime Street Lancaster, PA 17602 (717)397-5127 Attorney I.D. 67907 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW RANDALL GRASSMYER plaintiff NO. 01-02452 v. ELIZABETH GRASSMYER Defendant PRAECIPE Elizabeth Grassmyer wishes to withdraw her petition for Contempt and Enforcement of Property and Separation Agreement filed in the above-captioned matter. Please mark the docket that said petition has been withdrawn. . ,. <,,- ,;, ','l'; 'i ~" . =--'''''-',- . , , . CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Praecipe was served by first class mail, postage prepaid, addressed as follows: Maria P. Cognetti, Esquire 210 Grandview Avenue Suite 102 Camp Hill, PA 17011 RESPECTFULLY SUBMITTED, DATE: ~\f)~ \