HomeMy WebLinkAbout03-2333
SHELLY L. NESTER,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, P A
v.
NO. 03 -- cl.313
TODD L. NESTER,
Defendant
CIVIL ACTION -LAW
IN CUSTODY
COMPLAINT FOR CUSTODY
1. The Plaintiff is Shelly L. Nester, who currendy resides at 1004 Franklin
Street, Carlisle, Cumberland County, Pennsylvania.
2. The Defendant is Todd L. Nester, who currendy resides at 55
Southmont Drive, Enola, Cumberland County, Pennsylvania.
3. The Plaintiff seeks custody of the following child:
Name:
Collin Jacob Nester
Date of Birth: January 14,2000
Address:
1004 Franklin Street
Carlisle, Pennsylvania 17013
4. The child was born during wedlock.
5. The child is presendy in the custody of Shelly Nester, who resides at
1004 Franklin Street, Carlisle, Cumberland County, Pennsylvania.
6. During the child's lifetime, he has resided with the following persons
and at the following addresses:
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Name
Address Date
1004 Franklin Street October 2001 - Present
Carlisle, P A
136 Grayson Road April 2001 - Oct. 2001
Carlisle, P A
208 Faith Circle Jan. 16,2000 - April 2001
Carlisle, P A
Shelly Nester
Shelly Nester
Shelly and Todd Nester
7. The mother of the child is Shelly Nester, who currently resides at 1004
Franklin Street, Carlisle, Cumberland County, Pennsylvania.
8. Mother of the child, Shelly Nester, is not married.
9. The father of the child is Todd Nester, who currently resides at 55
Southmont Drive, Enola, Cumberland County, Pennsylvania.
10. Father of the child, Todd Nester, is not married.
11. The relationship of Plaintiff to the child is that of Mother.
12. The relationship of Defendant to the child is that of Father.
13. The Defendant currently resides with the following persons:
Name Relationship
Alicia Fickes
Fiancee
Madison Fickes
Fiancee's daughter
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14. The Plaintiff has not participated as a party or witness, or in another
capacity, in other litigation concerning the custody of the child in this or any
other court.
15. The Plaintiff has no information of a custody proceeding concerning the
child pending in a court of this Commonwealth.
16. The Plaintiff does not know of a person not a party to the proceedings
who has physical custody of the child or claims to have custody or visitation
rights with respect to the child.
17. The best interest and permanent welfare of the child will be served by
granting the relief requested for reasons including the following:
a. The Mother has been the primary caregiver of the minor child
since her birth. She has:
1. Planned and prepared meals;
11. Bathed, groomed and dressed the child;
111. Purchased, cleaned and cared for the child's clothing;
1V. Arranged medical care, including trips to physicians;
v. Arranged alternative daycare;
Vl. Put the child to bed nightly, attended the child in the
middle of the night, and awakened the child in the morning.
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b. The child has a psychological bond with the Mother.
c. Mother is able to provide a stable environment for the child.
18. Each parent whose parental rights to the child have not been terminated
has been named as parties to this action.
WHEREFORE, the Plaintiff requests that this Court return primary physical
custody of the child to the Plaintiff/Mother.
Respectfully submitted,
ABOM & KUTULAKIs, L.L.P.
DATE 05//5/03
~. {~~t-
Kara W. Haggerty .
ID No. 86914
8 South Hanover Street, Suite 204
Carlisle, P A 17013
(717) 249-0900
Attorney for Plaintiff
DATE5)/&1o <;"
f {
P. Kutulakis
ID o. 80411
8 South Hanover Street, Suite 204
Carlisle, P A 17013
(717) 249-0900
Attorney for Plaintiff
6
CERTIFICATE OF SERVICE
t/A-
AND NOW, this ~ day of y~ 2003, I, Kara W. Haggerty,
Esquire, of Abom & Kutulakis, L.L.P, hereby certify that I did serve a true and
correct copy of the foregoing Custody Complaint, upon the Defendant by depositing,
or causing to be deposited, same in the United States Mail, First-class mail, postage
prepaid addressed to the following:
Todd Nester
55 Southmont Drive
EnoJa, PA 17025
Respectfully submitted,
Abom & KutuJakis, L.L.P.
~~!7ja~~
ID No. 86914
8 South Hanover Street, Suite 204
Carlisle, P A 17013
(717) 249-0900
Attorney for Plaintiff
7
VERIFICATION
I, SHELLY L. NESTER, verify that the statements made in this Custody
Complaint are true and correct to the best of my knowledge, information, and belief.
I understand that false statements herein are made subject to the penalties of 18
Pa.C.S. ~ 4904 relating to unsworn falsification to authorities.
Date S //5-D-3
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SHELLY L. NESTER,
Petitioner
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, P A
v.
NO. 03 / ~.JjJ
TODD L. NESTER,
Defendant
CIVIL ACTION - LAW
IN CUSTODY
PETITION FOR SPECIAL RELIEF
AND NOW, this i t)f~ay of May, 2003, comes the Petitioner(ShellYIL.
r:'
Nester, by and through her attorney, Kara W. Haggerty, Esquire, of AB~M&
KUTULAKIS, L.L.P., and respectfully petitions this Honorable Court to gr~t ,"
Petitioner special relief, and in support thereof avers the following:
1. On or about May 15, 2003, the Petitioner filed a Complaint for Custody in
the above captioned matter.
2. On or about May 13, 2002 the parties executed a Marital Settlement
Agreement wherein the parties share legal custody of the minor child with the
Petitioner having primary physical custody and the Respondent having liberal
periods of partial custody of the parties' minor child. (Copy attached).
3. Said periods of partial custody were provided by Petitioner in order to
accommodate Respondent's erratic work schedule.
4. Petitioner continues to be accommodating to Respondent's work schedule
and remains flexible to allow the Respondent partial custody.
5. Respondent has repeatedly been uncooperative in reaching agreements
regarding the custody of the parties' minor child.
6. Respondent is currently scheduled to have custody of the parties' minor
child on the weekend beginning May 22, 2003.
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7. It is believed, and therefore averred, that the Respondent is scheduled to be
married on or about May 24, 2003, and will be leaving town for his honeymoon
for an extended period of time. It is unknown of the specific date of the
marriage due to Respondent's failure to inform the Petitioner of the date of
marnage ceremony.
8. Respondent refuses to disclose where he will be going on his honeymoon
and the time period that he will be away.
9. It is believed, and therefore averred, that the Respondent is going to be
leaving the Commonwealth of Pennsylvania for a minimum of one week.
10. Respondent refuses to permit Petitioner to have physical custody of the
parties' minor child while he is away on his honeymoon.
11. Respondent recently informed Petitioner that he believes the paternal
grandparent's relationship with the parties' minor child is superior to the
relationship between the Petitioner and her child.
12. Additionally, Respondent instructed Petitioner that the parties' minor child
shall refer to his fiancee, soon to be wife, as "Mother".
13. Respondent insists that the paternal grandparents have physical custody of
the parties' minor child while Respondent is on his honeYmoon.
14. Petitioner has learned that the parties' minor child will be staying with the
Respondent's parents during his time of partial custody.
15. Petitioner believes that it is in the best interest of the parties' minor child
that the child remain in the Petitioners custody while the Respondent is away
on his honeymoon.
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WHEREFORE, Petitioner prays that this Honorable Court Order that
physical and legal custody of the parties' minor child be granted to Petitioner.
Respectfully submitted,
AnOM & KUTULAKIS, L.L.P.
DATE
05/16/03>
JuJ[)
Kara W. Haggerty
ID No. 86914
8 South Hanover Street, Suite 204
Carlisle, P A 17013
(717) 249-0900
Attorney for Petitioner
DATE S:--ls </.:5)
Jas n P. Kumlakis
ID No. 80411
. 8 South Hanover Street, Suite 204
Carlisle, P A 17013
(717) 249-0900
Attorney for Petitioner
4
CERTIFICATE OF SERVICE
. h ~ l01LA-.
AND NOW, this I. J aay of ~ 2003, I, Kara W. Haggerty,
Esquire, of Abom & Kutulakis, L.L.P, hereby certify that I did serve a true and
correct copy of the foregoing Petition for Special Relief, upon the Defendant by
depositing, or causing to be deposited, same in the United States Mail, First-class mail,
postage prepaid addressed to the following:
Todd Nester
55 Southmont Drive
EnoJa, PA 17025
Respectfully submitted,
Abom & KutuJakis, L.L.P.
Kara W. Haggerty
ID No. 86914
8 South Hanover Street, Suite 204
Carlisle, P A 17013
(717) 249-0900
Attorney for Plaintiff
5
VERIFICATION
I, SHELLY L. NESTER, verify that the statements made in this Petition for
Special Relief are true and correct to the best of my knowledge, information, and
belief. I understand that false statements herein are made subject to the penalties of
18 Pa.C.S. ~ 4904 relating to unsworn falsification to authorities.
Date ,~ 1),'/ S--o.3
6
MARITAL SETTLEMENT AGREEMENT
-A- ~A...../
THIS AGREEMENT, made this I:J day of~FcbFua' '/, 2002 between
Shelly Nester, (hereinafter referred to as "WIFE"), and Todd Nester
(hereinafter referred to as "HUSB,AND").
WITNESSETH:
WHEREAS, Husband and Wife were lawfully married on September
20, 1997, in Carlisle, Cumberland County, Pennsylvania: and
WHEREAS, one (1) child was born of this marriage: Collin Jacob
Nester, born January 14, 2000.
WHEREAS, disputes and difficulties have arisen between the parties,
and it is the present intention of Husband and Wife to live separate and
apart, and the parties hereto are desirous offsetting their respective
financial and property rights and obligations as between each other,
including without limitation by specification: the settling of all matters
between them relating to the past, present, and future support and/or
maintenance of Wife by Husband or Husband by Wife; the settling of all
matters between them relating to the equitable division of martial
property; and, in general, the settling of any and all claims and possible
claims by one against the other or against their respective estates; and
WHEREAS, husband ar.ld Wife declare that each has had a full and
fair opportunity to obtain independent legal advice of counsel of his or
her selection; that Wife had been represented by Jason P. Kutulakis,
Esquire, of ABOM & KUTULAKIS, L.L.P. and that Husband has been
represented by Hubert Gilroy, Esquire, of Broujos & Gilroy, in this action.
The parties represent and warrant that they have fully disclosed to each
other all assets of any nature owned by each, all debts or obligations for
which the other party may be liable in whole or part, and all sources and
amounts of income. The parties acknowledge that they fully understand
the facts, and they acknowledge and accept that this Agreement, is,
under the circumstances, fair and equitable, and that it is being entered
into freely and voluntarily, with such knowledge and that execution of this
Agreement is not the result of any duress or undue influence and that it is
not the result of any improper or illegal agreement or agreements.
NOW THEREFORE, in consideration of the premises and of the
mutual promises, covenants and undertakings hereinafter set forth and
for other good and valuable consideration, receipt of which is hereby
acknowledged by each of the parties, hereto, Husband and Wife, each
intending to be legally bound hereby, covenant and agree as follows:
1. PERSONAL RIGHTS. It shall be lawful for each Husband and
Wife 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
parties shall be free from any control, restraint, interference or authority,
direct or indirect, by the other in all respects as fully as if they were
unmarried, except as may be necessary to carry out the provisions of this
Agreement. Husband and Wife shall not molest, harass, disturb or malign
each other or the respective families of each other nor compel or attempt
to compel the other to cohabit or dwell by any means in any manner
whatsoever with him or her. The foregoing provision shall not be taken as
an admission on the part of either party of the lawfulness or unlawfulness
of the causes leading to their living apart.
2. MUTUAL RELEASE. Husband and Wife each do hereby
mutually remise, release, quitclaim and forever discharge the other, for all
time to come, and for all purposes whatsoever, of and from any and all
rights, titles and interests, or claims in or against the property (including
income and gains from property hereinafter accruing) of the other or
against the estate of such other, of whatever nature and wheresoever
situate, which he or she now has or at any time hereafter may have
against such other, the estate of such other or any part thereof, whether
arising out of any former act, contracts, engagements or liabilities of such
other or by way of dower or courtesy; or claims in the nature of dower or
courtesy or widow's or widower's rights, family exception or similar
allowance, or under the interest laws, or the right to take against the
spouse's will; or the right to treat a lifetime conveyance by the other as
testamentary, or all other rights of a surviving spouse to participate in a
deceased spouse's estate, whether arising under the law of Pennsylvania,
any state, commonwealth or territory of the United States, or any other
country, or the right to act as personal representative of the estate of the
other; or any rights which any party may now have or any .time hereafter
have for past, present, future support, maintenance, alimony, alimony
pendente lite, counsel fees, costs or expenses, whether arising as a result
of the martial relation or otherwise; except all rights and agreements and
obligations of whatsoever nature arising or which may arise under this
Agreement' or for breach of any provision hereof. It is the intention of
Husband and Wife to give to each other, by the execution of the
Agreement, a full, complete and general release with respect to any and
all property of any kind or nature, real, personal or mixed, which the other
now owns or may hereafter acquire, except and only except all rights
and agreements and obligations of whatsoever nature arising or which'
may arise under this Agreement or for the breach of any provision hereof.
It is further specifically understood and agreed by and between the
parties hereto that each accepts the provisions herein made by the other
in lieu of and in full settlement and satisfaction of any and all of their rights
against the other or any past, present and future claims on account of
support and maintenance; that it is specifically understood and agreed
that the payments, transfers and other considerations herein recited so
comprehend and discharge any and all such, claims by each other
against the other, and are, inter alia, in full settlement and satisfaction and
in lieu of their past, present and future claims against the other in account
of maintenance and support, and also alimony, alimony pendente lite,
counsel fees,. costs and expenses, as well as any and all claims to
equitable distribution of property, both real and personal, and any other
charge of any nature whatsoever pertaining to any divorce proceedings
which may have been or may be instituted in any court in the
Commonwealth of Pennsylvania or any other jurisdiction, including any
other counsel arising in any manner whatsoever, except as may be
incurred in connection with a, breach of the Agreement as set forth
hereinafter in paragraph 25.
3. RELEASE OF TESTAMENTARY CLAIMS. Except as provided for in this
Agreement, each of the parties hereto shall have the right to dispose of
his or her property by last will and testament or otherwise, and each of
them agrees that the estate of the other, whether real, personal or mixed,
shall be and belong to the person or persons who would have become
entitled thereto as if the decedent had been the last to die. Except as set
forth herein, this provision is intended to constitute a mutual waiver by the
parties of any rights to take against each other's estate whatsoever, and is
intended to confer third-party beneficiary rights upon the other heirs and
beneficiaries of each. Either party may, however, make such provision for
the other as he or she may desire in an by his or her last will and
testament; and each of the parties further covenants and agrees that he
or she will permit any will of the other to be probated and allowed
administration; and that neither Husband nor Wife will claim against or
contest the will and estate of the other except as necessary to enforce
any breach by the decedent of any provision of this Agreement. Each of
the parties hereby releases, relinquishes and waives any and all rights to
act as personal representative of the other party's estate. Each of the
parties hereto further covenants and agrees for himself and herself and his
or her heirs, executors, administrators or assigns, for the purpose of
enforcing any of the right relinquished under this Agreement.
4. FINANCIAL DISCLOSURE. The parties waive their rights to
require the filing of financial statements by the other, although the parties
have been advised by their respective attorneys that it is their legal right to
have these disclosures made prior to entering into this Agreement without
reliance upon financial disclosure, the parties are forever waiving their
right to request or use that as a basis to overturn this Agreement or any
part thereof.
5. INCOME TAX CONSIDERATIONS. The transfers of property
pursuant to this Agreement are transfers between Husband and Wife
incident to their divorce and as such are nontaxable, with no gain or loss
recognized. The transferee's basis in the property shall be the adjusted
basis of the transferor immediately before the transfer. The transfers herein
are an equal division of marital, property for full and adequate
consideration and as such will not result in any gift tax liability.
6. PENSION, PROFIT-SHARING, RETIREMENT, CREDIT UNION OR
OTHER EMPLOYMENT-RELATED PLANS. The parties hereto expressly waive
and relinquish any right, claim, title or interest in any pension, profit-sharing,
retirement, credit union or other employment-related plans in which the
other has any interest by virtue of his or her past or present employment,
whether vested or unvested, matured or unmatured.
7. EQUITABLE DISTRIBUTION OF MARITAL PROPERTY. The parties
have attempted to distribute their marital property in a manner which
conforms to the criteria set forth in Section 3502 of the Pennsylvania
Divorce Code and taking into account the following considerations: the
length of marriage; the fact that it is the first marriage for Husband and
Wife; the age, health, station, amount and sources of income, vocational
skills, employability, estate, liabilities and needs of each of the parties; the
contribution of each party to the education, training or increased earning
power of the other party; the opportunity of each party for further
acquisitions of capital assets and income; the sources of income of both
parties, including but not limited to medical, retirement, insurance or other
benefits; the contribution or dissipation of each party in the acquisition,
preservation, depreciation or appreciation of the martial property,
including the contribution of each spouse as a homemaker the value of
the property set apart to each party; the standard of living of the parties
established during the marriage; and the economic circumstances of
each party at the time the division of the property is to become effective.
. The division of existing marital property is not intended by the parties
to constitute in any way a sale or exchange of assets, and the division is
being effected without the introduction of outside funds or other property
not constituting marital property. The division of property under this Agreement
shall be in full satisfaction of all marital rights of the parties.
A. MOTOR VEHICLES. The parties agree that Husband shall have full
and sole possession of the 1996 Dodge Pickup Truck, and Wife shall become full
and sole owner of the 1996 Nissan Maxima. On or before the date of the execution
of this Agreement, the parties shall execute the titles to the said vehicles, if
appropriate, so as to effectuate the transfer as herein provided. Furthermore, each
party shall become solely responsible for the financial obligation associated with
the vehicle he or she is to retain pursuant to this Agreement and each party agrees
to indemnify and hold harmless the other party from any and all liability therefore.
B. DIVISION OF HOUSEHOLD AND PERSONAL PROPERTY. The
parties hereto have divided between themselves, to their mutual satisfaction, all
items of tangible and intangible marital property. Except as otherwise set forth
hereinafter, neither party shall make any claim to any such items of marital
property, or of the separate personal property of either party, which are now in the
possession and/or under the control of the other. Should it become necessary, the
parties each agree to sign, upon request, and titles or documents necessary to give.
effect to this paragraph. Property shall be deemed to be in the possession or under
the control of either party if, in the case of tangible personal property, it is
physically in the possession or control of the party at the time of the signing of this
Agreement, and in the case of intangible personal property, if any physical or
written evidence of ownership, such as passbook, checkbook, policy or certificate
of insurance or other similar writing is in the possession or control of the party.
Anything to contrary contained herein notwithstanding, Husband and Wife shall be
deemed to be in the possession and control of any pension or other employee
benefit plans or other employee benefits of any nature to which either party may
have a vested or contingent right or interest, apart from the provision of the
Divorce Code, at the time of the signing of this Agreement.
From and after the date of the signing of this Agreement, both parties shall
have complete freedom of disposition as to their separate property and any
property which is in their possession or control, pursuant to this agreement, and
may mortgage, sell, grant, convey, or otherwise encumber or dispose of such
property, whether real or personal, whether such property was acquired before,
during, or after marriage, and neither
Husband nor Wife need join in, consent to, or acknowledge any deed,
mortgage, or other instrument of the other pertaining to such disposition of
property.
8. DISTRIBUTION OF CASH ASSETS, STOCKS AND BONDS. The parties
agree to sell and divide equally their money market account.
The parties shall retain as their respective sole and separate
property any other depository or brokerage accounts, stocks, or bonds
held in their respective individual names:.
9. REAL ESTATE. The parties acknowledge that they are the joint
owners of the marital residence situate at 208 Faith Circle, Carlisle,
Cumberland County, Pennsylvania. Husband and Wife have listed said
marital residence for sale. All costs associated with the sale of the marital
residence, including but not limited to realtor's fees, transfer fees, closing
costs, and taxes, shall be shared equally by Husband and Wife. All
proceeds from the sale of the marital property shall likewise be shared
equally.
10. DEBTS. Husband represents and warrants to Wife that since the
separation he has not, and in the future he will not contract or incur any
debt or liability for which Wife or her estate might be responsible, and he
shall indemnify and save Wife harmless from any and all claims or
demands made against her by reason of such debt or obligation incurred
by him since the date of said separation, except as otherwise set forth
herein.
Wife represents and warrants to Husband that since the separation
she has not, and in the future she will not, contract or incur any debt or
liability for which husband or his estate might be responsible, and she shall
indemnify and save Husband harmless from any and all claims or
demands made against him by reason of such debts or obligations
incurred by her since the date of said separation, except as otherwise set
forth herein.
Husband hereby assumes and shall be solely responsible and liable
for the payment of the following obligations:
a. VISA from PSECU (approx. $5,000.00)
b. $1,836.23 to Wife due to the following:
1. Wife assumed $9,000.00 Members 1 st loan
2. $9,000.00 minus $5,000.00 = $4,000.00
3. $4,000.00 divided by 2 = $2,000.00
Husband shall immediately upon execution of this Agreement take
such steps as are necessary to transfer ownership of the said accounts
and obligation to his name solely, obtaining a full, complete and general
release of Wife from the said creditors. Husband will immediately upon
execution of this Agreement accompany Wife to Members 1 sl to make
arraignments consistent with the above-paragraph. In the event that the
creditors refuse for any reason to transfer the charge accounts to
Husband's name absolutely and to release Wife from any liability thereon,
such accounts shall be immediately closed.
Wife hereby assumes and shall be solely responsible and liable for
the payment of the following obligations:
a. Members 1 st loan (approx. $9,000.00)
Wife shall immediately upon execution of this Agreement take such
steps as are necessary to transfer ownership of the said accounts and
obligation to her name solely, obtaining a full, complete and general
release of Husband from the said creditors. In the event that the creditors
refuse for any reason to transfer the charge accounts to Wife's name
absolutely and to release Husband from any liability thereon, such
accounts shall be immediately closed.
11. PATERNAL GRANDPARENTS: Provided that matters remain
civil, paternal grandparents will continue to pick up the child from the
current daycare provider. Each party shall pick up the child from the
paternal grandparents on their respect days of custody/visitation. Each
party reserves the right to alter this provision of the Agreement.
12. CHILD SUPPORT. Said payments shall be made through the
Domestic Relations Section of Cumberland County.
13. CHILD TAX EXEMPTION. Wife shall be entitled to the
dependency exemption and child tax credit for all "odd" years beginning
with the 2001 tax filing. Husband shall be entitled to the dependency
exemption and child tax credit for all "even" years beginning with the
2002 tax filing. Both parties will sign all necessary documents with the IRS
to allow the other parent to claim the tax deduction for Collin in the year
as specified above.
Wife may claim child care expenses at 40% every year. Husband
may claim child care expensed at 60% every year.
Telephone Contact. The parties agree that the child is to have
liberal rights of telephone contact with the non-custodial parent, no'
matter who is exercising his or her right to physical custody.
Medical Care/Treatment. Both Husband and Wife shall be
immediately informed as to the medical care and treatment of the child.
Relocation. Upon the knowledge of a pending relocation, temporary
or permanent, of either parent, that parent must immediately inform the other of his
or her new address and telephone number.
14. MEDICAL INSURANCE. Wife shall provide medical insurance for
Collin of the parties for such period of time, as it is available to her without cost
through her employment. Wife shall also continue to maintain Husband on her
medical insurance coverage until such time as a final Decree in divorce is entered.
In the event that Wife's medical insurance coverage is terminated or becomes
unavailable without cost, Husband shall be responsible for providing medical
insurance coverage for Collin. The obligations set forth herein shall continue until
such time as Collin has graduated from high school or has reached 18 years of age.
The parties shall equally share all medical, dental, prescription, eye care,
orthodontic and counseling expenses for the child which are not otherwise paid by
medical insurance until Collin has graduated from high school or has reached 18
years of age.
15. COLLEGE EXPENSES. The parties each acknowledge herein that it is
their intent to contribute to the expenses associated" with the college or other post-
high school education for their child, to the extent that they are financially able at
that time. Such expenses would include, without limitation, tuition, room and
board, lab fees, miscellaneous student fees, books and student supplies,
transportation expenses for summers and other school breaks, clothing and
miscellaneous spending money, however, the provisions herein acknowledging the
parties intent, shall not in any manner, confer third party beneficiary rights unto
their child for the payment of said expenses. If applicable, both parents shall be
involved in and have input into the choice of academic institutions selected by the
child. Further, the child will be required to apply for and to use all possible grants,
scholarships and work-study programs and any of their own income or assets
before the parties are responsible to contribute to their college expenses.
16. COUNSEL FEES AND COSTS. Husband and Wife each agree to
pay and be responsible for their own attorney's fees and costs incurred
with respect to the negotiatio'n of this property settlement agreement and
the divorce proceedings related thereto.
17. DIVORCE: A Complaint in divorce has been filed to No. 01-2851
Civil Term in the Court of Common Pleas of Cumberland County,
Pennsylvania, and either party shall be free to proceed without further
delay to secure the divorce. Both parties shall sign an affidavit evidencing
their consent to the divorce, pursuant to Section 3301 (c) of the Divorce
Code. In the event, for whatever reason, either party fails or refuses to
execute such affidavit upon the other party's timely request, that party
shall indemnify, defend and hold the other harmless from any and all
additional expenses, including actual counsel fees, resulting from any
action brought to compel the refusing party to consent. ' Each party
hereby agrees that a legal or equitable action may be brought to
compel him or her to execute a consent form and that, absent some
breach of this Agreement by the proceeding party, there shall be no
defense to such action asserted.
18. BANKRUPTCY. The parties further warrant that they have not
heretofore instituted any proceedings pursuant to the bankruptcy laws nor
are there any such proceedings pending with respect to them which
have been initiated by others. It is stipulated and agreed by the parties
that the terms of this Agreement as they resolve the economic issues
between the parties incidental to their divorce and the obligations of the
parties to each other resulting there from shall not be dischargeable in
bankruptcy, should either party file for protection under the Bankruptcy
Code at any time after the date of execution of this Agreement.
19. RECONCILIATION. Notwithstanding a reconciliation between
the parties, this agreement shall continue to remain in full force and effect
absent a writing signed by the parties stating that this Agreement is null
and void.
20. INCORPORATION IN FINAL DIVORCE DECREE. The terms of this
Agreement shall be incorporated but shall not merge in the final divorce
decree between the parties. The terms shall be incorporated into the final
divorce decree for the purposes of enforcement only and any
modification of the terms hereof shall be valid only if made in writing and
signed by both of the parties. Any court having jurisdiction shall enforce
the provision of this Agreement as if it were a Court Order. This Agreement
shall survive in its entirety, resolving the spousal support, alimony, equitable
distribution and other interests and rights of the parties under and pursuant
to the Divorce Code of the Commonwealth of Pennsylvania, and no court
asked to enforce or interpret this Agreement shall in any way change the
terms of this Agreement. This Agreement may be enforced independently
of any support order, divorce decree or judgment and its terms shall take
precedence over same, remaining the primary obligation of each party.
This Agreement shall remain in full force and effect regardless of any
change in the marital status of the parties. It is warranted, covenanted
and represented by Husband and Wife, each to the other, that this
Agreement is lawful and enforceable, and this warranty, covenant and
representation is made for the specific purpose of inducing the parties to
execute the Agreement.
21. DATE OF EXECUTION. The "date of execution" or "execution
date" of the Agreement shall be defined as the date upon which it is
executed by" the parties if they have each executed the Agreement on
the same date. Otherwise, the "date of execution" or "execution date"
of this Agreement shall be defined as the date of execution by the' party
last executing the Agreement.
22. FULL DISCLOSURE. Each party asserts that he or she has made
or shall make a full and complete disclosure of all the real and personal
property of whatsoever nature and wheresoever located belonging in
any way to each of them, of all debts and encumbrances incurred in any
manner whatsoever by each of them, and of all sources and amounts of
income received or receivable by each party.
23. 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.
24. BREACH. If either party breaches any provision of this
Agreement, the other party shall have the rights, at his or her election,
either to pursue his or her rights in having the terms of this Agreement
enforced as an Order of Court or to sue for specific performance or for
damages for such breach, and the party breaching this Agreement shall
be responsible for legal fees and costs incurred by the other in enforcing
his or her rights under this Agreement.
25. PENNSYLVANIA LAW. The parties agree that the terms of this
Agreement and any interpretation and/or enforcement thereof shall
forever be governed by the Laws of Pennsylvania.
26. WAIVER OF MODIFICA nON TO BE IN WRITING. No modification
or waiver of any of the terms hereof shall be valid unless made in writing
and signed by both of the parties.
27. ADDITIONAL INSTRUMENTS. Each of the parties shall from time to
time, at the request of the other, execute, acknowledge, and deliver to
the other party any and all further instruments, including Deeds and other
real estate-related documents, titles, or other documents that may be
reasonably required to give full force and effect to the provisions of this
Agreement.
28. SEVERABILITY. If any term, condition, clause or provision of this
Agreement shall be determined or declared to be void or invalid in law or
otherwise, then only that term, condition, clause or provision shall be
stricken from this Agreement and in all other respects this Agreement shall
be valid and shall continue in full force, effect and operation.
29. WARRANTY. Husband and Wife again acknowledge that they
have each read and understood this Agreement and each warrants and
represents that it is fair and equitable to each of them.
30. 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 hereby, the
parties hereto have hereunto set their hands and seals the day and year
first above written. This Agreement is executed in duplicative, and each
party hereto acknowledges receipt of a duly executed copy thereof.
WITNESSES:
Shelly Deitch Nester
111-(0
~I'~
Todd Nester
COUNTY OF
On this ~ day of ,/"2002, befoJ1'_ me, the
undersigned officer, personally a peared "J D d.aJL f~ ~ 1
known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within Agreement, and acknowledged that he/she
execute,d.the same for the purp()ses theZ'n ~onta.ined.
j Notanal Seal . 1, ~ ~ /' _ J
Bridget Ann Coworan, Notary Public l A, ~ ( .JII /' . \ ~
CarlisiH 8oro, Culllberland County i _- _ _ L>J
l My Commission bpiws June 10, 2~02 j
ss.
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
ss.
On this _ day of 2002, before me, the
undersigned officer, personally appeared
known to me (or satisfactorily proven) to be the person whose name is
subscribed' to the within Agreement, and acknowledged that he/she
executed the same for the purposes therein contained.
SHELLY L. NESTER
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
03-2333 CIVIL ACTION LAW
TODD L. NESTER
DEFENDANT
IN CUSTODY
ORDER OF COURT
AND NOW,
Wednesday, May 21, 2003
, upon consideration of the attached Complaint,
it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator,
at 4th Floor, Cumberland County Courthouse, Carlisle on Tuesday, June 17, 2003 at 3:30 PM
for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or
if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary
order. All children age five or older may also be present at the conference. Failure to appear at the conference may
provide grounds for entry of a temporary or permanent order.
The court hereby directs the parties to furnish any and all existing Protection from Abuse orders,
Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearin2.
FOR THE COURT.
By: Isl
Jacqueline M. Verney, Esq.
Custody Conciliator
i./
The Court of Common Pleas of Cumberland County is required by law to comply with the
Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable
accommodations available to disabled individuals having business before the court, please contact our office.
All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must
attend the scheduled conference or hearing.
YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT
HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE TIlE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
Telephone (717) 249-3166
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JUN 0 3 2003 'iY
SHELLY L. NESTER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
: NO. 2003-2333 CIVIL TERM
TODD L. NESTER,
Defendant
: CIVIL ACTION - LAW
: IN CUSTODY
ORDER OF COURT
AND NOW, this 3rd day of June, 2003, the Conciliator being advised that the
parties have reached a stipulated agreement, the Conciliator hereby relinquishes
jurisdiction in this matter.
FOR THE COURT,
/L1.tt-
onciliator
'iiN\I^lASNN3d
A.LNrlrn n~!',n:':J::;8~1lO
6C;:I Wd s- Nnr 80
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3~}I::,:O"Cj"lU
SHELLY L. NESTER,
Petitioner
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, P A
v,
NO, 03-2333
TODD L. NESTER,
Defendant
CIVIL ACTION - LAW
IN CUSTODY
TO THE HONORABLE GEORGE E, HOFFER, JUDGE OF SAID COURT:
PETITION FOR SPECIAL RELIEF
AND NOW, this 14th day of September, 2004, comes the Petitioner, Shelly L.
Nester, by and through her attorney, Kara W, Haggerty, Esquire, of ABOM &
KUTULAKIS, L.L.P., and respectfully petitions this Honorable Court to grant
Petitioner special relief, and in support thereof avers the following:
1. On or about May 15,2003, the Petitioner filed a Complaint for Custody in
the above captioned matter,
2. On or about May 14, 2002, the parties executed a Custody Agreement
wherein the parties share legal and physical custody of Collin Jacob Nester,
born January 14, 2000. (A copy of the Custody Agreement is attached hereto as
'Exhibit A'),
3, Said periods of partial custody were provided by Petitioner in order to
accommodate Respondent's erratic work schedule at the time.
4, Respondent has continuously been uncooperative in reaching agreements
regarding the custody of Collin,
2
COUNT I
5, Paragraphs one (1) through four (4) are incorporated herein by reference,
6, Petitioner and Respondent have agreed that it is in Collin's best interest to
attend preschool prior to beginning kindergarten in the 2005-2006 school year.
7. At the time of the child support conference in 2004, Douglas Lelunan,
Esquire, represented Respondent.
8, At the beginning of August 2004, undersigned counsel contacted Attorney
Lelunan to inquire about Respondent's position on enrolling Collin in the
Cumberland County Learning Center, a preschool facility available to Mother
through her employer, the County of Cumberland,
9. On August 11,2004, undersigned counsel sent a letter to Attorney Lehman
regarding preschool enrollment and requesting a response by August 16, 2004.
(A copy of the August 11, 2004, letter is attached hereto as 'Exhibit B').
10, Having received no response, undersigned counsel sent a follow-up letter
to Attorney Lehman dated August 18, 2004, advising that Mother was planning
to enroll Collin in preschool at the Cumberland County Learning Center,
scheduled to begin September 7, 2004. (A copy of the August 18, 2004, letter
is attached hereto as 'Exhibit C).
11, On August 18, 2004, undersigned counsel received a telephone call from
Attorney Lelunan advising that he was not retained to represent Respondent in
this matter. Attorney Lehman also sent a letter confirming same.
12, On or about August 23,2004, undersigned counsel spoke with Respondent
at which time he expressed an objection to Collin being enrolled at the
Cumberland County Learning Center, stating his preference for a preschool in
closer proximity to his home,
3
13, In addition to his mother, both Collin's maternal and paternal grandparents
reside in Carlisle in close proximity to the Cumberland County Learning
Center.
14, Respondent relocated to Enola, Pennsylvania and sought employment that
requires him to work many evenings and most weekends.
15, On or about August 30; 2004, Petitioner, with her counsel, and
Respondent had a meeting to attempt to resolve the preschool issue; however,
no agreement could be reached,
16. Following the meeting, Respondent took no action to either enroll Collin
in preschool or to request a hearing before the Court of Common Pleas,
17, Petitioner enrolled Collin and he began preschool at the Cumberland
County Learning Center on August 31, 2004.
18. From the time that Collin began preschool, Respondent has taken him to
the Cumberland County Learning Center on at least two (2) occasions during
his periods of custody. Respondent has failed to take Collin to preschool at the
Cumberland County Learning Center on two (2) occasions.
19. Respondent failed to take Collin to preschool on Monday, September 13,
2004.
20. When Petitioner called to inquire about Collin's attendance at preschool,
Respondent advised her that he enrolled Collin in another preschool, namely
KinderCare in Enola, P A.
21. Respondent enrolled Collin in an additional preschool without advising
Petitioner of his intentions in advance and without advising her of his actions
afterward.
4
22, Petitioner believes that it is in Collin's best interest for his Mother and
Pather to discuss issues regarding his education, an effort that Mother made
prior to enrolling Collin in the Cumberland County Learning Center.
23. Petitioner believes that it is in Collin's best interest to maintain consistency
in his education by attending only one preschooL
24. Petitioner believes that it is in Collin's best interest to maintain his
enrollment at the Cumberland County Learning Center, a facility that
Respondent acknowledges is in Collin's best interest as evidenced by the fact
that he took him there himself on several occasions.
WHEREFORE, Petitioner prays that This Honorable Court grant her
Petition for Special Relief and award her primary physical custody so that she may
maintain Collin's enrollment at the Cumberland County Learning Center.
COUNT II
25, Paragraphs one (1) through twenty-four (24) are incorporated herein by
reference,
26. The parties present custody schedule was provided by Petitioner in order
to accommodate Respondent's erratic work schedule.
27. Since entry of the present custody agreement, Respondent's work schedule
has changed multiple times.
28. Respondent's current work schedule requires him to work many evenings
and most weekends, as he is presendy a car salesman.
29. Petitioner has requested custody of Collin on those evenings and weekends
when Respondent is working,
30. Respondent has refused to allow Petitioner to have custody on the
evenings and weekends when he is working,
5
31. Petitioner believes that it is in Collin's best interest to be in her custody at
the times when Respondent is working,
WHEREFORE, Petitioner prays that This Honorable Court grant her
Petition for Special Relief, award her primary physical custody, and enter an order
granting Petitioner custody of Collin on those occasions that Respondent is working
and unable to exercise custody.
COUNT III
32. Paragraphs one (1) through thirty-one (31) are incorporated herein by
reference,
33. Kindergarten enrollment is scheduled to begin in March of 2005.
34. Petitioner resides in the South Middleton School District and would like
Collin to attend school in that district.
35. Petitioner believes that it is in Collin's best interest for her to be granted
primary physical custody so that Collin may be enrolled in the South Middleton
School District for the 2005-2006 school year.
WHEREFORE, Petitioner prays that This Honorable Court grant her
Petition for Special Relief and award primary physical custody of Collin to Petitioner.
COUNT IV
36, Paragraphs one (1) through thirty-five (35) are incorporated herein by
reference,
37, Collin is presently enrolled in preschool at the Cumberland County
Learning Center and in extracurricular activities, namely soccer, through South
Middleton Township,
6
38, At the time that Collin started preschool and soccer, he was very excited to
participate in these activities and to continue to attend these activities.
39. Following a period of partial custody with Respondent, Collin no longer
wants to attend preschool or to participate in soccer,
40. It is believed that Respondent is not maintaining a positive attitude
regarding Collin's preschool education and his participation in extracurricular
activities.
41. It is believed that Petitioner is the parent that would encourage Collin's
attendance in and attitude toward preschool as well as his participation in his
extracurricular activities,
WHEREFORE, Petitioner prays that This Honorable Court grant her
Petition for Special Relief and award her primary physical custody of Collin,
COUNT V
42. Paragraphs one (1) through forty-one (41) are incorporated herein by
reference.
43. On or about August 30, 2004, the parties met to discuss Collin's preschool
enrollment,
44, At that meeting, Respondent expressed his opposition to the Cumberland
County Learning Center, and was advised of his right to request a hearing
before the Court of Common Pleas.
45. Since that meeting, Respondent took actions, such as enrolling Collin in
another preschool and failing to communicate with Petitioner about various
issues regarding Collin, that would prompt Petitioner to file a petition before
This Honorable Court, and thus incur the costs of these proceedings.
7
46. Petitioner believes that Respondent's actions were done, in part, to avoid
having to incur court costs and attorney's fees.
47. Because Respondent's actions forced Petitioner to file the within Petition,
Petitioner believes that Respondent should be responsible for the court costs
and attorney's fees associated with bringing this action,
WHEREFORE, Petitioner prays that This Honorable Court grant her request
for relief and order Respondent to pay the attorney's fees and costs associated with
this proceeding,
Respectfully submitted,
ADOM & KUTULAKIS, L.L.P.
DATE oq f, t}- f lJ If
~~afJ,J;I~) fu
ID No. 86914 0
36 South Hanover Street
Carlisle, P A 17013
(717) 249-0900
Attorney for Petitioner
8
VERIFICATION
I, Shelly L. Nester, verify that the statements made in this Petition for Special
Relief are true and correct to the best of my knowledge, information, and belief. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S,
~ 4904 relating to unsworn falsification to authorities.
DATE
tJ-/3 - 0/
4d
ter iLL
CERTIFICATE OF SERVICE
AND NOW, this ~y of v.pktnW-2004, I, Kara W. Haggerty,
Esquire, of Abom & Kutulakis, L.L.P, hereby certify that I did serve a true and
correct copy of the foregoing Petition for Special Relief, upon the Defendant by
depositing, or causing to be deposited, same in the United States Mail, First-class mail,
postage prepaid addressed to the following:
Todd Nester
24 Southmont Drive
Enola, PA 17025
Respectfully submitted,
Abom & Kutulakis, L.L.P.
14~?*L .
10 No, 86914 d
36 South Hanover Stteet
Carlisle, P A 17013
(717) 249-0900
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Custody of Collin Jacob Nester
THIS AGREEMENT, made this I if day of /17,.;. y ,2002 between Shelly
Nester, (hereinafter referred to as "Wife", and Todd Nester (hereinafter referred to
as "Husband").
WIlNESSETH:
A child was born ofthis marriage: Collin Jacob Nester, born January 14, 2000. The
parties shall share legal and physical custody of the said child. The visitation rights
of both parents shall be set as follows: *Husband shall have son on Wednesday
evening, Thursday, Friday, and returning to Wife on Saturday at four o'clock. Wife
shall have son on Saturday evening, Sunday, Monday, Tuesday, Wednesday, and
Thursday (husband picks up at babysitters). Husband shall have son on Thursday
evening, Friday, Saturday, Sunday, Monday, Tuesday, and Wednesday (wife picks
up at babysitters). Wife shall have son on Wednesday evening, Thursday, Friday,
and returning to Husband on Saturday at four o'clock. Husband shall have son on
Saturday evening, Sunday, Monday, Tuesday, Wednesday, and Thursday (wife
picks up at babysitters). Wife shall have son on Thursday evening, Friday,
Saturday, Sunday, Monday, Tuesday, and Wednesday (husband picks up at
babysitters). *Schedule repeats!
The parties shall share the following major holidays: Thanksgiving, Christmas,
Easter, and the child's birthday, January 14. Parties shall also alternate A.M. and
P.M. visitation rights on these said holidays. Mother's Day and Father's Day will
be spent with the respective parent, from six o'clock p.m .on the night before
through six o'clock p.m. on the said day. Bath party shall also have the right to
exercise two (2) one-week periods of summer vacation or exercise fourteen (14)
single vacation days. Partial custody (seven (7) consecutive days) at a time to be
mutually agreed upon by the parties hereto, provided that the parties will provide
each other an advance notice. The parties may from time to time as they mutually
agree alter these periods of custody, provided that a minimum of twenty-four (24)
hours notice is provided for the request of additional custody.
WITNESSES:
qlp
Shelly Deitch Nester
-~
Todd Nester
ABOM &
KUTULAKIS
ATTORNEYS AT LAW
August 11,2004
FAX 569-7558
Douglas Lehman, Esquire
600 Eden Road, Suite E
Lancaster, PA 17601
Re: Nester v. Nester
Our File No: 01-129
Dear Mr. Lehman:
I am writing to follow up on our telephone conversation regarding
Collin's attendance at pre-school. I have reviewed the paperwork that Todd
has provided to my client, and it is our position that Collin should be enrolled
in the Cumberland County Learning Center, a Hildebrandt Learning Center.
The Cumberland County Learning Center is located at 1000 Claremont Road,
Carlisle, P A. The Cumberland County Learning Center was established to
provide a benefit to employees of Cumberland County, and it would be more
cost-effective for the parties for Collin to attend at that location. In addition,
Shelly will be paying 60% of the cost of Collin's pre-school education, and
should therefore be able to take advantage of the benefits she receives through
her employer.
Both the Cumberland County Learning Center and the PHICO Child
Care Center, are divisions of Hildebrandt Learning Centers, LLC. Because
both pre-schools are affiliated with the same organization, there would be no
dispute over educational techniques or teaching styles of the pre-schooL In
addition to being a benefit through Shelly's employment, the location of the
Cumberland County Learning Center is ideal for Collin. The Center is close to
both Shelly and Todd's places of employment. Furthermore, both Collin's
Rr;j'LY To:
36 SOUTH HANOVER STREET
CARLISLE, PA 17013
(717) 249,0900
1 06 WALNUT STREET
HAJUUSBURG, PA 17101
(717) 232,9511
FAX (717) 249,3344
paternal and maternal grandparents reside and work in the area of the
Cumberland County Learning Center, Collin's aunt and uncle are also in the
area, and always available to care for him in an emergency. Collin's doctor also
is located in Carlisle. In the event that Collin would not be able to attend the
pre-school due to an illness or some other unforeseen circumstance, there are
multiple people available that would be able to care for Collin, even in a last
minute situation.
For all the reasons stated above, it is Shelly's intention to enroll Collin in
pre-school at the Cumberland County Learning Center, Please discuss this
matter with you client. Please contact me by Monday, August 16, 2004, if you
intend to begin litigation regarding this issue. It is certainly clear from our
perspective that it is in Collin's best interest to attend the Cumberland County
Learning Center. If you would like to discuss this matter with me any further,
please do not hesitate to contact me at your convenience.
Very truly yours,
Abom &- KutuJakis, L.L.P.
~~~
KWH/bhs
Cc: Shelly Nester
__MOM &
KUTULAKIS
-
ATTORNEYS AT LAW
August 18,2004
VIA FACSIMILE AND US MAIL
FAX 569-7558
Douglas Lehman, Esquire
600 Eden Road, Suite E
Lancaster, P A 17601
Re: Nester v. Nester
Our File No: 01-129
Dear Mr. Lehman:
I am writing to follow up on my prior correspondence dated August 11, 2004. At
that time, I had outlined our reasoning for enrolling Collin in the Cumberland County
Learning Center. Based on the fact that we have not had a response from you in the time
period I requested, Shelly has taken steps to enroll Collin in the Cumberland County
Learning Center. Collin is scheduled to begin pre-school on Tuesday, September 7, 2004.
Shelly is in the process of completing all necessary paperwork for Collin's
enrollment. I will ensure that Shelly provides Todd with copies of all paperwork sent and
received from the Center. It is my understanding that the Center will need all of Todd's
contact information, both at home and at work. Please forward Todd's work contact
information to my attention at your earliest convenience as his workplace has changed as of
the last child support conference.
Thank you for your prompt attention to this matter. If you have any additional
questions or need any additional information, please do not hesitate to contact me,
Very truly yours,
Abom &- Kutulakis, L.L.P.
~!:;?J~~~
KWH/bhs
Cc: Shelly Nester
36 SOUTH HANOVER STR};H
CARLISLE. PA 170]3
(717) 249,0900
FAX (7] 7) 249,3344
I 06 WALNUT STREI::T
HAIUUSBURG, PA 17lO1
(717) 232,9511
SE~004
0'
SHELLYL. NESTER,
Petitioner
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTI, P A
v.
NO. 03-2333
TODD L. NESTER,
Respondent
CIVIL ACTION - LAW
IN CUSTODY
~RDER OF COURT .
AND NOW, this ~ day of September, 2004, upon consideration of the
attached Petition for Special Relief, it is ORD:2ROO . , ~"UL .he
_ Pliutionllr ohull irnrIwrl;1wly take lHigl4J.} 1'11~';' ~1 . '"'' 'J r .1
" . '. 1."J
,.. _ ~ _'..t.le _A.- .
TW TI m 1\L 1.L:.~~ u.11 v-Z, it is Ordered and Decreed that the parties and their
respective counsel appear before This Honorable Court, on the / (, 1"day of
A L;;;-'. J... ..:;:tJiJ
~~ , 2004, at f .m., for a Hearing on said
Petition,
BY THE COURT,
1(1/lA'Y\
PJ
Kara W, Haggerty, Esquire - ~ ~\ I -P_ )
.~p."'f.tr ~ - N~., '. .,
Todd Nester, 24 Southmont Drive, Enola, PA 17025 - ?Y1c:J-..Il.
9/1<1-/0'1" ) 4'4v.
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SHELLY L. NESTER,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V
03-2333 CIVIL
TODD L. NESTER,
Respondent
CIVIL ACTION - LAW
IN CUSTODY
IN RE: PETITION FOR SPECIAL RELIEF
ORDER OF COURT
AND NOW, September 16, 2004, after hearing and
consideration of the testimony presented on the Petition for
Special Relief, the Court does not see a need to intervene in the
custody and schooling situations of the child at the moment, and
therefore the Court refuses any relief at this time.
By the Court,
~ara L. Haggerty, Esquire
For the Petitioner
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SHELLY L. NESTER,
Petitioner
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, P A
v.
NO. 03-2333
TODD L. NESTER,
Defendant
CIVIL ACTION -LAW
IN CUSTODY
PETITION FOR MODIFICATION OF CUSTODY
AND NOW, comes the Petitioner, Shelly L. Nester, by and through her
attorney, Kara W. Haggerty, Esquire, of ABOM & KUTULAKIS, L.L.P., and respectfully
petitions for modification of custody, and in support thereof avers the following:
1. On or about May 15,2003, the Petitioner filed a Complaint for Custody in
the above captioned matter.
2. On or about May 14,2002, the parties executed a Custody Agreement
wherein the parties share legal and physical custody of Collin Jacob Nester,
born January 14, 2000. (A copy of the Custody Agreement is attached hereto as
'Exhibit A').
3. This Agreement should be modified because:
A. Petitioner and Respondent have agreed that it is in Collin's best
interest to attend preschool prior to beginning kindergarten in the
2005-2006 school year.
B. Petitioner enrolled Collin and he began preschool at the Cumberland
County Learning Center, a preschool facility available to Mother
through her employer, the County of Cumberland, on August 31,
2004.
C. On September 13,2004, Respondent enrolled Collin in another
preschool, namely KinderCare in Enola, P A.
D. The parties appeared before The Honorable George E. Hoffer on a
Petition for Special Relief to determine which preschool it would be
in Collin's best interest for him to attend.
E. This Honorable Court determined that there was not an emergency
situation, and that Collin could maintain enrollment in two (2)
different preschools.
F. Due to the parties' erratic custody schedule, Collin's preschool
schedule is also very erratic.
G. The Cumberland County Learning Center is able to accommodate
Collin on an alternating week basis, and would only require part-time
tuition in this type of situation.
H. Petitioner believes that it is in Collin's best interest to maintain his
enrollment at the Cumberland County Learning Center.
I. Petitioner provided the parties present custody schedule in order to
accommodate Respondent's erratic work schedule.
J. Since entry of the present custody agreement, Respondent's work
schedule has changed multiple times.
K. Respondent's current work schedule requires him to work many
evenings and most weekends, as he is presently a car salesman.
L. Petitioner has requested custody of Collin on those evenings and
weekends when Respondent is working.
M. Respondent has refused to allow Petitioner to have custody on the
evenings and weekends when he is working.
N. Petitioner believes that it is in Collin's best interest to be in her
custody at the times when Respondent is working.
O. Kindergarten enrollment is scheduled to begin in March of 2005.
P. Petitioner resides in the South Middleton School District and would
like Collin to attend school in that district.
Q. Petitioner believes that it is in Collin's best interest for her to be
gJanted primary physical custody so that Collin may be enrolled in
the South Middleton School District for the 2005-2006 school year
and his ongoing education.
WHEREFORE, Petitioner respectfully requests that This Honorable
Court modify the existing custody agreement because it would be in the best interest
of the child.
Respectfully submitted,
MOM & KUTULAKIS, L.L.P.
DATE 12/Dl/D+
~~~~~m~
Attorney ID No. 86914
36 South Hanover Street
Carlisle, P A 17013
(717) 249-0900
Attornry for Petitioner
Custody of Collin Jacob Nester
THIS AGREEMENT, made this 1'1 day of 11fJr;. '/ , 2002 between Shelly
Nester, (hereinafter referred to as "Wife", and Todd Nester (hereinafter referred to
as "Husband").
WITNESSETH:
A child was born of this marriage: Collin Jacob Nester, born January 14, 2000. The
parties shall share legal and physical custody of the said child. The visitation rights
of both parents shall be set as follows: *Husband shall have son on Wednesday
evening, Thursday, Friday, and returning to Wife on Saturday at four o'clock. Wife
shall have son on Saturday evening, Sunday, Monday, Tuesday, Wednesday, and
Thursday (husband picks up at babysitters). Husband shall have son on Thursday
evening, Friday, Saturday, Sunday, Monday, Tuesday, and Wednesday (wife picks
up at babysitters). Wife shall have son on Wednesday evening, Thursday, Friday,
and returning to Husband on Saturday at four 0' clock. Husband shall have son on
Saturday evening, Sunday, Monday, Tuesday, Wednesday, and Thursday (wife
picks up at babysitters). Wife shall have son on Thursday evening, Friday,
Saturday, Sunday, Monday, Tuesday, and Wednesday (husband picks up at
babysitters). *Schedule repeats!
The parties shall share the following major holidays: Thanksgiving, Christmas,
Easter, and the child's birthday, January 14. Parties shall also alternate A.M. and
P.M. visitation rights on these said holidays. Mother's Day and Father's Day will
be spent with the respective parent, from six o'clock p.m .on the night before
through six o'clock p.m. on the said day. Each party shall also have the right to
exercise two (2) one-week periods of summer vacation or exercise fourteen (14)
single vacation days. Partial custody (seven (7) consecutive days) at a time to be
mutually agreed upon by the parties hereto, provided that the parties will provide
each other an advance notice. The parties may from time to time as they mutually
agree alter these periods of custody, provided that a minimum of twenty-four (24)
hours notice is provided for the request of additional custody.
WITNESSES:
q~ t:J
Shelly Deitch Nester
-7//~_
. " &i'Tf /~~
Todd Nester
MARITAL SETTLEMENT AGREEMENT
~ .A.1A....1
THIS AGREEMENT, made this 1:1 day of..rcbruc,IIY, 2002 between
Shelly Nester, (hereinafter referred to as "WIFE"), and Todd Nester
(hereinafter referred to as "HUSBAND").
WITNESSETH:
WHEREAS, Husband and Wife were lawfully married on September
20,1997, in Carlisle, Cumberland County, Pennsylvania: and
WHEREAS, one (1) child was born of this marriage: Collin Jacob
Nester, born January 14, 2000.
WHEREAS, disputes and difficulties have arisen between the parties,
and it is the present intention of Husband and Wife to live separate and
apart, and the parties hereto are desirous offsetting their respective
financial and property rights and obligations as between each other,
including without limitation by specification: the settling of all matters
between them relating to the past, present, and future support and/or
maintenance of Wife by Husband or Husband by Wife; the settling of all
matters between them relating to the equitable division of martial
property; and, in general, the settling of any and all claims and possible
claims by one against the other or against their respective estates; and
WHEREAS, husband and Wife declare that each has had a full and
fair opportunity to obtain independent legal advice of counsel of his or
her selection; that Wife had been represented by Jason P. Kutulakis,
Esquire, of ABOM & KUTULAKIS, L.L.P. and that Husband has been
represented by Hubert Gilroy, Esquire, of Broujos & Gilroy, in this action.
The parties represent and warrant that they have fully disclosed to each
other all assets of any nature owned by each, all debts or obligations for
which the other party may be liable in whole or part, and all sources and
amounts of income. The parties acknowledge that they fully understand
the facts, and they aCknowledge and accept that this Agreement, is,
under the circumstances, fair and equitable, and that it is being entered
into freely and voluntarily, with such knowledge and that execution of this
Agreement is not the result of any duress or undue influence and that it is
not the result of any improper or illegal agreement or agreements.
NOW THEREFORE, in consideration of the premises and of the
mutual promises, covenants and undertakings hereinafter set forth and
for other good and valuable consideration, receipt of which is hereby
acknowledged by each of the parties, hereto, Husband and Wife, each
intending to be legally bound hereby, covenant and agree as follows:
1 . PERSONAL RIGHTS. It shall be lawful for each Husband and
Wife 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
parties shall be free from any control, restraint, interference or authority,
direct or indirect, by the other in all respects. as fully as if they were
unmarried, except as may be necessary to carry out the provisions of this
Agreement. Husband and Wife shall not molest, harass, disturb or malign
each other or the respective families of each other nor compel or attempt
to compel the other to cohabit or dwell by any means in any manner
whatsoever with him or her. The foregoing provision shall not be taken as
an admission on the part of either party of the lawfulness or unlawfulness
of the causes leading to their living apart.
2. MUTUAL RELEASE. Husband and Wife each do hereby
mutually remise, release, quitclaim and forever discharge the other, for all
time to come, and for all purposes whatsoever, of and from any and all
rights, titles and interests, or claims in or against the property (including
income and gains from property hereinafter accruing) of the other or
against the estate of such other, of whatever nature and wheresoever
situate, which he or she now has or at any time hereafter may have
against such other, the estate of such other or any part thereof, whether
arising out of any former act, contracts, engagements or liabilities of such
other or by way of dower or courtesy; or claims in the nature of dower or
courtesy or widow's or widower's rights, family exception or similar
allowance, or under the interest laws, or the right to take against the
spouse's will; or the right to treat a lifetime conveyance by the other as
testamentary, or all other rights of a ,surviving spouse to participate in a
deceased spouse's estate, whether arising under the law of Pennsylvania,
any state, commonwealth or territory of the United States, or any other
country, or the right to act as personal representative of the estate of the
other; or any rights which any party may now have or any time hereafter
have for past, present, future support, maintenance, alimony, alimony
pendente lite, counsel fees, costs or expenses, whether arising as a result
of the martial relation or otherwise; except all rights and agreements and
obligations of whatsoever nature arising or which may arise under this
Agreement or for breach of any provision hereof. It is the intention of
Husband and Wife to give to each other, by the execution of the
Agreement, a full, complete and general release with respect to any and
all property of any kind or nature, real, personal or mixed, which the other
now owns or may hereafter acquire, except and only except all rights
and agreements and obligations of whatsoever nature arising or which
may arise under this Agreement or for the breach of any provision hereof.
It is further specifically understood and agreed by and between the
parties hereto that each accepts the provisions herein made by the other
in lieu of and in full settlement and satisfaction of any and all of their rights
against the other or any past, present and future claims on account of
support and maintenance; that it is specifically understood and agreed
that the payments, transfers and other considerations herein recited so
comprehend and discharge any and all such claims by each other
against the other, and are, inter alia, in full settlement and satisfaction and
in lieu of their past, present and future claims against the other in account
of maintenance and support, and also alimony, alimony pendente lite,
counsel fees, costs and expenses, as well as any and all claims to
equitable distribution of property, both real and personal, and any other
charge of any nature whatsoever pertaining to any divorce proceedings
which may have been or may be instituted in any court in the
Commonwealth of Pennsylvania or any other jurisdiction, including any
other counsel arising in any manner whatsoever, except as may be
incurred in connection with a breach of the Agreement as set forth
hereinafter in paragraph 25.
3. RELEASE OF TESTAMENTARY CLAIMS. Except as provided for in this
Agreement, each of the parties hereto shall have the right to dispose of
his or her property by last will and testament or otherwise, and each of
them agrees that the estate of the other, whether real, personal or mixed,
shall be and belong to the person or persons who would have become
entitled thereto as if the decedent had been the last to die. Except as set
forth herein, this provision is intended to constitute a mutual waiver by the
parties of any rights to take against each other's estate whatsoever, and is
intended to confer third-party beneficiary rights upon the other heirs and
beneficiaries of each. Either party may, however, make such provision for
the other as he or she may desire in an by his or her last will and
testament; and each of the parties further covenants and agrees that he
or she will permit any will of the other to be probated and allowed
administration; and that neither Husband nor Wife will claim against or
contest the will and estate of the other except as necessary to enforce
any breach by the decedent of any provision of this Agreement. Each of
the parties hereby releases, relinquishes and waives any and all rights to
act as personal representative of the other party's estate. Each of the
parties hereto further covenants and agrees for himself and herself and his
or her heirs, executors, administrators or assigns, for the purpose of
enforcing any of the right relinquished under this Agreement.
4. FINANCIAL DISCLOSURE. The parties waive their rights to
require the filing of financial statements by the other, although the parties
have been advised by their respective attorneys that it is their legal right to
have these disclosures made prior to entering into this Agreement without
reliance upon financial disclosure, the parties are forever waiving their
right to request or use that as a basis to overturn this Agreement or any
part thereof.
5. INCOME TAX CONSIDERATIONS. The transfers of property
pursuant to this Agreement are transfers between Husband and Wife
incident to their divorce and as such are nontaxable, with no gain or loss
recognized. The transferee's basis in the property shall be the adjusted
basis of the transferor immediately before the transfer. The transfers herein
are an equal division of marital property for full and adequate
consideration and as such will not result in any gift tax liability.
6. PENSION, PROFIT-SHARING, RETIREMENT, CREDIT UNION OR
OTHER EMPLOYMENT-RELATED PLANS. The parties hereto expressly waive
and relinquish any right, claim, title or interest in any pension, profit-sharing,
retirement, credit union or other employment-related plans in which the
other has any interest by virtue of his or her past or present employment,
whether vested or unvested, matured or unmatured.
7. EQUITABLE DISTRIBUTION OF MARITAL PROPERTY. The parties
have attempted to distribute their marital property in a manner which
conforms to the criteria set forth in Section 3502 of the Pennsylvania
Divorce Code and taking into account the following considerations: the
length of marriage; the fact that it is the first marriage for Husband and
Wife; the age, health, station, amount and sources of income, vocational
skills, employability, estate, liabilities and needs of each of the parties; the
contribution of each party to the education, training or increased earning
power of the other party; the opportunity of each party for further
acquisitions of capital assets and income; the sources of income of both
parties, including but not limited to medical, retirement, insurance or other
benefits; the contribution or dissipation of each party in the acquisition,
preservation, depreciation or appreciation of the martial property,
including the contribution of each spouse as a homemaker the value of
the property set apart to each party; the standard of living of the parties
established during the marriage; and the economic circumstances of
each party at the time the division of the property is to become effective.
The division of existing marital property is not intended by the parties
to constitute in any way a sale or exchange of assets, and the division is
being effected without the introduction of outside funds or other property
not constituting marital property. The division of property under this Agreement
shall be in full satisfaction of all marital rights of the parties.
A. MOTOR VElllCLES. The parties agree that Husband shall have full
and sole possession of the 1996 Dodge Pickup Truck, and Wife shall become full
and sole owner of the 1996 Nissan Maxima. On or before the date of the execution
of this Agreement, the parties shall execute the titles to the said vehicles, if
appropriate, so as to effectuate the transfer as herein provided. Furthermore, each
party shall become solely responsible for the financial obligation associated with
the vehicle he or she is to retain pursuant to this Agreement and each party agrees
to indemnify and hold harmless the other party from any and all liability therefore.
B. DIVISION OF HOUSEHOLD AND PERSONAL PROPERTY. The
parties hereto have divided between themselves, to their mutual satisfaction, all
items of tangible and intangible marital property. Except as otherwise set forth
hereinafter, neither party shall make any claim to any such items of marital
property, or of the separate personal property of either party, which are now in the
possession and/or under the control of the other. Should it become necessary, the
parties each agree to sign, upon request, and titles or documents necessary to give
effect to this paragraph. Property shall be deemed to be in the possession or under
the control of either party if, in the case of tangible personal property, it is
physically in the possession or control of the party at the time of the signing of this
Agreement, and in the case of intangible personal property, if any physical or
written evidence of ownership, such as passbook, checkbook, policy or certificate
of insurance or other similar writing is in the possession or control of the party.
Anything to contrary contained herein notwithstanding, Husband and Wife shall be
deemed to be in the possession and control of any pension or other employee
benefit plans or other employee benefits of any nature to which either party may
have a vested or contingent right or interest, apart from the provision of the
Divorce Code, at the time of the signing of this Agreement.
From and after the date of the signing of this Agreement, both parties shall
have complete freedom of disposition as to their separate property and any
property which is in their possession or control, pursuant to this agreement, and
may mortgage, sell, grant, convey, or otherwise encumber or dispose of such
property, whether real or personal, whether such property was acquired before,
during, or after marriage, and neither
Husband nor Wife need join in, consent to, or acknowledge any deed,
mortgage, or other instrument of the other pertaining to such disposition of
property.
8. DISTRIBUTION OF CASH ASSETS, STOCKS AND BONDS. The parties
agree to sell and divide equally their money market account.
The parties shall retain as their respective sole and separate
property any other depository or brokerage accounts, stocks, or bonds
held in their respective individual names:.
9. REAL ESTATE. The parties acknowledge that they are the joint
owners of the marital residence situate at 208 Faith Circle, Carlisle,
Cumberland County, Pennsylvania. Husband and Wife have listed said
marital residence for sale. All costs associated with the sale of the marital
residence, including but not limited to realtor's fees, transfer fees, closing
costs, and taxes, shall be shared equally by Husband and Wife. All
proceeds from the sale of the marital property shall likewise be shared
equally.
10. DEBTS. Husband represents and warrants to Wife that since the
separation he has not and in the future he will not contract or incur any
debt or liability for which Wife or her estate might be responsible, and he
shall indemnify and save Wife harmless from any and all claims or
demands made against her by reason of such debt or obligation incurred
by him since the date of said separation, except as otherwise set forth
herein.
Wife represents and warrants to Husband that since the separation
she has not and in the future she will not contract or incur any debt or
liability for which husband or his estate might be responsible, and she shall
indemnify and save Husband harmless from any and all claims or
demands made against him by reason of such debts or obligations
incurred by her since the date of said separation, except as otherwise set
forth herein.
Husband hereby assumes and shall be solely responsible and liable
for the payment of the following obligations:
a. VISA from PSECU (approx. $5,000.00)
b. $1,836.23 to Wife due to the following:
1. Wife assumed $9,000.00 Members 1st loan
2. $9,000.00 minus $5,000.00 = $4,000.00
3. $4,000.00 divided by 2 = $2,000.00
Husband shall immediately upon execution of this Agreement take
such steps as are necessary to transfer ownership of the said accounts
and obligation to his name solely, obtaining a full, complete and general
release of Wife from the said creditors. Husband will immediately upon
execution of this Agreement accompany Wife to Members 1 sf to make
arraignments consistent with the above-paragraph. In the event that the
creditors refuse for any reason to transfer the charge accounts to
Husband's name absolutely and to release Wife from any liability thereon,
such accounts shall be immediately closed.
Wife hereby assumes and shall be solely responsible and liable for
the payment of the following obligations:
a. Members 1 st loan (approx. $9,000.00)
Wife shall immediately upon execution of this Agreement take such
steps as are necessary to transfer ownership of the said accounts and
obligation to her name solely, obtaining a full, complete and general
release of Husband from the said creditors. In the event that the creditors
refuse for any reason to transfer the charge accounts to Wife's name
absolutely and to release Husband from any liability thereon, such
accounts shall be immediately closed.
11 . PATERNAL GRANDPARENTS: Provided that matters remain
civil, paternal grandparents will continue to pick up the child from the
current daycare provider. Each party shall pick up the child from the
paternal grandparents on their respect days of custody/visitation. Each
party reserves the right to alter this provision of the Agreement.
12. CHILD SUPPORT. Said payments shall be made through the
Domestic Relations Section of Cumberland County.
13. CHILD TAX EXEMPTION. Wife shall be entitled to the
dependency exemption and child tax credit for all "odd" years beginning
with the 2001 tax filing. Husband shall be entitled to the dependency
exemption and child tax credit for all "even" years beginning with the
2002 tax filing. Both parties will sign all necessary documents with the IRS
to allow the other parent to claim the tax deduction for Collin in the year
as specified above.
Wife may claim child care expenses at 40% every year. Husband
may claim child care expensed at 60% every year.
Telephone Contact. The parties agree that the child is to have
liberal rights of telephone contact with the non-custodial parent, no
matter who is exercising his or her right to physical custody.
Medical Care/Treatment. Both Husband and Wife shall be
immediately informed as to the medical care and treatment of the child.
Relocation. Upon the knowledge of a pending relocation, temporary
or permanent, of either parent, that parent must immediately inform the other of his
or her new address and telephone number.
14. MEDICAL INSURANCE. Wife shall provide medical insurance for
Collin of the parties for such period of time, as it is available to her without cost
through her employment. Wife shall also continue to maintain Husband on her
medical insurance coverage until such time as a final Decree in divorce is entered.
In the event that Wife's medical insurance coverage is terminated or becomes
unavailable without cost, Husband shall be responsible for providing medical
insurance coverage for Collin. The obligations set forth herein shall continue until
such time as Collin has graduated from high school or has reached 18 years of age.
The parties shall equally share all medical, dental, prescription, eye care,
orthodontic and counseling expenses for the child which are not otherwise paid by
medical insurance until Collin has graduated from high school or has reached 18
years of age.
15. COLLEGE EXPENSES. The parties each acknowledge herein that it is
their intent to contribute to the expenses associated with the college or other post-
high school education for their child, to the extent that they are financially able at
that time. Such expenses would include, without limitation, tuition, room and
board, lab fees, miscellaneous student fees, books and student supplies,
transportation expenses for summers and other school breaks, clothing and
miscellaneous spending money, however, the provisions herein acknowledging the
parties intent, shall not in any manner, confer third party beneficiary rights unto
their child for the payment of said expenses. If applicable, both parents shall be
involved in and have input into the choice of academic institutions selected by the
child. Further, the child will be required to apply for and to use all possible grants,
scholarships and work-study programs and any of their own income or assets
before the parties are responsible to contribute to their college expenses.
16. COUNSEL FEES AND COSTS. Husband and Wife each agree to
pay and be responsible for their own attorney's fees and costs incurred
with respect to the negotiation of this property settlement agreement and
the divorce proceedings related thereto.
17. DIVORCE: A Complaint in divorce has been filed to No. 01-2851
Civil Term in the Court of Common Pleas of Cumberland County,
Pennsylvania, and either party shall be free to proceed without further
delay to secure the divorce. Both parties shall sign an affidavit evidencing
their consent to the divorce, pursuant to Section 3301 (c) of the Divorce
Code. In the event, for whatever reason, either party fails or refuses to
execute such affidavit upon the other party's timely request, that party
shall indemnify, defend and hold the other harmless from any and all
additional expenses, including actual counsel fees, resulting from any
action brought to compel the refusing party to consent. Each party
hereby agrees that a legal or equitable action may be brought to
compel him or her to execute a consent form and that, absent some
breach of this Agreement by the proceeding party, there shall be no
defense to such action asserted.
18. BANKRUPTCY. The parties further warrant that they have not
heretofore instituted any proceedings pursuant to the bankruptcy laws nor
are there any such proceedings pending with respect to them which
have been initiated by others. It is stipulated and agreed by the parties
that the terms of this Agreement as they resolve the economic issues
between the parties incidental to their divorce and the obligations of the
parties to each other resulting there from shall not be dischargeable in
bankruptcy, should either party file for protection under the Bankruptcy
Code at any time after the date of execution of this Agreement.
19. RECONCILIATION. Notwithstanding a reconciliation between
, the parties, this agreement shall continue to remain in full force and effect
absent a writing signed by the parties stating that this Agreement is null
and void.
20. INCORPORATION IN FINAL DIVORCE DECREE. The terms of this
Agreement shall be incorporated but shall not merge in the final divorce
decree between the parties. The terms shall be incorporated into the final
divorce decree for the purposes of enforcement only and any
modification of the terms hereof shall be valid only if made in writing and
signed by both of the parties. Any court having jurisdiction shall enforce
the provision of this Agreement as if it were a Court Order. This Agreement
shall survive in its entirety, resolving the spousal support, alimony, equitable
distribution and other interests and rights of the parties under and pursuant
to the Divorce Code of the Commonwealth of Pennsylvania, and no court
asked to enforce or interpret this Agreement shall in any way change the
terms of this Agreement. This Agreement may be enforced independently
of any support order, divorce decree or judgment and its terms shall take
precedence over same, remaining the primary obligation of each party.
This Agreement shall remain in full force and effect regardless of any
change in the marital status of the parties. It is warranted, covenanted
and represented by Husband and Wife, each to the other, that this
Agreement is lawful and enforceable, and this warranty, covenant and
representation is made for the specific purpose of inducing the parties to
execute the Agreement.
21. DATE OF EXECUTION. The "date of execution" or "execution
date" of the Agreement shall be defined as the date upon which it is
executed by'the parties if they have each executed the Agreement on
the same date. Otherwise, the "date of execution" or "execution date"
of this Agreement shall be defined as the date of execution by the party
last executing the Agreement.
22. FULL DISCLOSURE. Each party asserts that he or she has made
or shall make a full and complete disclosure of all the real and personal
property of whatsoever nature and wheresoever located belonging in
any way to each of them, of all debts and encumbrances incurred in any
manner whatsoever by each of them, and of all sources and amounts of
income received or receivable by each party.
23. 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.
24. BREACH. If either party breaches any provision of this
Agreement, the other party shall have the rights, at his or her el~ction,
either to pursue his or her rights in .having the terms of this Agreement
enforced as an Order of Court or to sue for specific performance or for
damages for such breach, and the party breaching this Agreement shall
be responsible for legal fees and costs incurred by the other in enforcing
his or her rights under this Agreement.
25. PENNSYLVANIA LAW. The parties agree that the terms of this
Agreement and any interpretation and/or enforcement thereof shall
forever be governed by the Laws of Pennsylvania.
26. WAIVER OF MODIFICATION TO BE IN WRITING. No modification
or waiver of any of the terms hereof shall be valid unless made in writing
and sign'ed by both of the parties.
27. ADDITIONAL INSTRUMENTS. Each of the parties shall from time to
time, at the request of the other, execute, acknowledge, and deliver to
the other party any and all further instruments, including Deeds and other
real estate-related documents, titles, or other documents that may be
reasonably required to give full force and effect to the provisions of this
Agreement.
28. SEVERABILITY. If any term, condition, clause or provision of this
Agreement shall be determined or declared to be void or invalid in law or
otherwise, then only that term, condition, clause or provision shall be
stricken from this Agreement, and in all other respects this Agreement shall
be valid and shall continue in full force, effect and operation.
29. WARRANTY. Husband and Wife again acknowledge that they
have each read and understood this Agreement, and each warrants and
represents that it is fair and equitable to each of them.
30. 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 hereby, the
parties hereto have hereunto set their hands and seals the day and year
first above written. This Agreement is executed in duplicative, and each
party hereto acknowledges receipt of a duly executed copy thereof.
WITNESSES:
Shelly Deitch Nester
aJ(O
~~~
Todd Nester
SS.
COUNTY OF
On this ~ day of 'd,~~ ,,.-2002, befoJ1_ me, the
undersigned officer, personally aopeared \.-.j 0 cI...aJL tr.-<J ~ 1
known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within Agreement, and acknowledged that he/she
executed the same for the pu~pos,~s thez:'n contained.
Notarial Seal ; Of J..-. C j
BridgE!t Ann Corror;m, Notary Public . n$ ~
Carlisle Bom, Cumberland County ; ( ~ ~
i My Commissiun E;<pires June 10, 2002 ;
- ~.
COMMONWEALTH OF PENNSYLVANIA
SS.
COUNTY OF
On this _ day of 2002, before me, the
undersigned officer, personally appeared
known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within Agreement, and acknowledged that he/she
executed the same for the purposes therein contained.
VERIFICATION
I, Shelly L. Nester, verify that the statements made in this Petition 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.
//-c?-3-o9"
Date
6
CERTIFICATE OF SERVICE
AND NOW, this 7th day of December, 2004, I, Kara W. Haggerty, Esquire, of
Abom & Kutulakis, L.L.P, hereby certify that I did serve a true and correct copy of
the foregoing Petition for Modification of Custody, upon the Defendant by
depositing, or causing to be deposited, same in the United States Mail, First-class mail,
postage prepaid addressed to the following:
Richard P. Wagnet; Esquire
2233 North Front Street
Harrisburg, PA 17110
Respectfully submitted,
Abom & Kutulakis, L.L.P.
~~~~dz-r
Attorney ID No. 86914
36 South Hanover Street
Carlisle, P A 17013
(717) 249-0900
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JAN 1 2 200~ ~
SHELLY L. NESTER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
: CIVIL ACTION - LAW
TODD L. NESTER,
Defendant
: NO. 2003-2333 CIVIL TERM
: IN CUSTODY
ORDER OF COURT
AND NOW, this 1'-11:4 day of ~.I.1 /.J/7t ,2005, upon
consideration of the attached Custody Conc' lation Repol , it is ordered and directed as
follows:
1. A Hearing is scheduled in Court Room No. i ' of the Cumberland
County Court House, on the ~ day of ()..oM 1 , , 2005, at 9" 3 0
o'clock, IT ' M" at which time testimony will bi taken. For purposes of this Hearing,
the Mother shall be deemed to be the moving party and shall proceed initially with
testimony, Counsel for each party shall file with the Court and opposing counsel a
Memorandum setting forth each party's position on custody, a list of witnesses who will
be expected to testify at the Hearing and a summary of the anticipated testimony of each
witness. These Memoranda shall be filed at least ten days prior to the Hearing date.
2, Pending further Order of Court or agreement of the parties, the parties'
stipulated custody agreement shall remain in full force and effect.
BY THE COURT,
.4J..
J.
cc; Kara W. Haggerty, Esquire, counsel for Mother > t...nu:'
Richard Wagner, Esquire, counsel for Father r--
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JAN 1 2 2005 "J
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SHELLY L. NESTER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
: CIVIL ACTION - LAW
TODD L. NESTER,
Defendant
: NO. 2003-2333 CIVIL TERM
: IN CUSTODY
PRIOR JUDGE: None
CUSTODY CONCILIATION SUMMARY REPORT
IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL
PROCEDURE 1915,3-8, the undersigned Custody Conciliator submits the following
report:
1. The pertinent information concerning the Child who is the subject ofthis
litigation is as follows:
NAME
DATE OF BIRTH
CUHRENTL Y IN CUSTODY OF
Collin Jacob Nester
January 14,2000
shared
2, A Conciliation Conference was held January 11,2005 with the following
individuals in attendance: The Mother, Shelly L. Nester, with her counsel, Kara W.
Haggerty, Esquire, and the Father, Todd L. Nester, with his counsel, Richard Wagner,
Esquire,
3, The Honorable George E. Hoffer, PJ. previously entered an Order of
Court on September 16, 2004 denying Mother's Petition for Emergency Relief,
4. Mother's position on custody is as follows: Mother requests a decision on
where the Child should be enrolled in kindergarten for the 2005-2006 school year. She is
willing to continue the shared legal and shared physical !:Ustody on a week on/week off
basis with some arrangement for transportation to school. Mother lives in the South
Middleton School District; Father lives in the East Pennsboro school district. Mother is
also seeking a babysitting clause that would give the non-custodial parent the right of first
refusal for times when the custodial parent is unavailable: to care for the child, Mother
believes this would maximize the child's time with his parents, Mother asserts that prior
to the parties' separation, they had discussed relocating to South Middleton Township so
the Child could attend school there. Mother will be able to arrange her schedule at the
Cumberland County District Attorney's Office to permit her to put the Child on the bus
in the morning and a babysitter who lives one block from her house would care for the
child until she returns from work. The program is a full day kindergarten.
5, Father's position on custody is as follows: Father requests that the Child
be permitted to attend school in East Pennsboro, He is satisfied with the shared legal and
shared physical custody arrangement but he too recognize:s that some arrangement
regarding transportation by Mother during her week needs to be reached, Father is
remarried and has a step-child older than the Child in question and a younger biological
child, Father asserts that the Child would attend the sam,: school that the older child is
attending and ultimately the younger child also, He further asserts that his wife is
available to put the Child on the bus and take him off ofthe bus. Father's father is a
Carlisle policeman,
6. The Conciliator recommends an Order in the form as attached scheduling
a Hearing and continuing the stipulated custody agreement. It is expected that the
Hearing will require one day.
I - II -0 <;'
Date
~-~-~ M~
~\1, Verney, Esqu~
Custody Conciliator
SHELLY L. NESTER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs,
CIVIL ACTION - LAW
NO. 03-2333 CIVIL
TODD L. NESTER,
Defendant
IN CUSTODY
ORDER
AND NOW, this ,y- day of April, 2005, following hearing, it is directed that the
child, Collin Jacob Nester, born January 14,2001, will attend school in the South Middleton
School District commencing with his kindergarten year. To the extent that it is not inconsistent
herewith, the existing custody order to remain in full force and effect.
BY THE COURT,
~ara Haggerty, Esquire
For the Plaintiff
d
../{l, Richard Wagner, Esquire
For the Defendant
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