HomeMy WebLinkAbout03-2723DIANE C. MARTINEZ-VIDAL,
Plaintiff
VS.
ENRIQUE J. MART1NEZ-VIDAL,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: No. O 3 . .2 ?,~ .3 Civil Term
:
: ACTION 1N DIVORCE
NOTICE TO DEFEND AND CLAIM RIGHTS
You have been sued in Court. If you wish to defend against the claims set forth in the
following pages, you must take prompt action. You are warned that if you fail to do so, the case
may proceed without you and a decree of divorce or annulment may be entered against you by the
Court. A judgment may also be entered against you for any other claim or relief requested in
these papers by the Plaintiff. You may lose money or property or other rights important to you,
including custody or visitation of your children.
Where the ground for the divorce is indignities or irretrievable breakdown of the
marriage, you may request marriage counseling. A list of marriage counselors is available at the
Office of the Prothonotary, Cumberland County Courthouse.
IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY,
LAWYER'S FEES AND EXPENSES BEFORE A DIVORCE OR ANNULMENT IS
GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM THEM.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO, OR TELEPHONE, THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
32 South Bedford St.
Carlisle, Pa. 17013
(717) 249-3166
DIANE C. MARTINEZ-VIDAL,
Plaintiff
VS.
ENRIQUE J. MARTINEZ-VIDAL,
Defendant
1N THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
: No. 0~4- ,2 7~23 Civil Term
:
: ACTION IN DIVORCE
_COMPLAINT IN DIVORCE
1. Plaintiff is Diane C. Martinez-Vidal, a competent adult individual, who has resided at
316 S. Orange St., Carlisle, Cumberland County, Pennsylvania, since 1993.
2. Defendant is Enrique J. Martinez-Vidal, a competent adult individual, who has resided
at 316 S. Orange St., Carlisle, Cumberland County, Pennsylvania, since 1993.
3. Plaintiffand Defendant have been bona fide residents of the Commonwealth for at
least 6 months immediately previous to the filing of this Complaint.
4. The Plaintiffand the Defendant were married on July 23, 1977 in Boiling Springs,
Cumberland County, Pennsylvania.
5. There have been no prior actions of divorce or for annulment between the parties.
6. Plaintiffhas been advised that cotmseling is available and that plaintiff may have the
right to request that the court require the parties to participate in counseling.
7. Plaintiff and Defendant have one child together.
8. Plaintiff and Defendant are both citizens of the United States of America.
9. Neither Plaintiffor Defendant are a member of the Armed Forces of the United States
of any of its allies.
10. The Plaintiff avers that the grounds on which this action is based are: That the
marriage is irretrievably broken.
WHEREFORE, Plaintiff requests the court to enter a decree in divorce.
I verify that the statements made in this Complaint are true and correct. ! understand that
false statements herein are made subject to the penalties of ! 8 Pa.C.S. {}4904 relating to unsworn
falsification to authorities.
Diane C. Martinez-Vidal,"Plaintiff
Respectfully submitted,
(717) 245-8508
ATTORNEY FOR PLAINTIFF
DIANE C. MARTINEZ-VIDAL,
Plaintiff
VS.
ENRIQUE J. MARTINEZ-VIDAL,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: No. 0 ~ - ~ 7dj Civil Term
:
: ACTION 1N DIVORCE
NOTICE TO RESUME PRIOR SURNAME.
To the Prot~
Notice is hereby given that the Plaintiff in the above matter:
X prior to the entry of a Final Decree in divorce.
OR
__ after the entry of a Final Decree in Divorce
hereby elects to resume the prior surname of CYBURT and gives this written notice avowing her
intention pursuant to the provisions of 54 P.S. s704.
Di~,NE C. MART1NEZ-VIDJ~-L, former name.
DIANE CYBUR~
Signature of Name being resumed.
COMMONWEALTH OF PENNSYLVANIA )
):SS
COUNTY OF CUMBERLAND )
On this, the day of ,2003 before me, the undersigned officer,
pemonally appeared DIANE C. MART1NEZ-VIDAL/DIANE CYBURT, personally known to
me, (or satisfactorily proven) to be the person whose name is subscribed to the within instrument,
and acknowledged that she executed the same for the purposes therein contained.
1N WITNESS WHEREOF, I hereunto~. _ _~?.~set my hand and, official~{_~~eal.
~ary Public ~.~
~b~y commission ex~ire~,'~"~¥:;)T' T&i~il !'Z,.i i ,
DIANE C. MARTINEZ-VIDAL,
Plaintiff
: 1N THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
vs. : No. 03 - 2723 Civil Term
:
ENRIQUE J. MARTINEZ-VIDAL, : ACTION IN DIVORCE
Defendant :
AFFIDAVIT OF SERVICE
AND NOW, this June 16, 2003, I, Jane Adams, Esquire, hereby certify that
on June 13, 2003, a certified true copy of the NOTICE TO DEFEND and COMPLAINT IN
DIVORCE were served, via certified mail, return receipt requested, addressed to:
Enrique J. Martinez-Vidal
316 S. Orange St.
Carlisle, Pa. 17013
DEFENDANT
!ectfully Suite2
ams, Esquire -
· 79465
th Pitt Street
, Pa. 17013
(717) 245-8508
ATTORNEY FOR PLAiNTIFF
· Complete items 1,2, and 3. Also complete
item 4 if Restricted Delivery is desired.
· Print your name and address on the reverse
so that we can return the card to you.
· Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Article Addressed to:
A. Signature
Addressee
D. Is delivery address
If YES, enter delivery address below: [] No
3. Service Type
,~'Cer[ified Mail [] Express Mail
[] ~-egistered -- r-I Return Receipt for Merchandise
[] Insured Mail [] C.O.D.
2. Article N'umber
PS Form 3811, August 2001 Domestic Return Receipt 102595-02-M-0835
Sender. Please pr nt~address, an~-~JJn
JANE ADAMS
41~ITORNEY AT LAW
I~IGLE' PiTT STREET
, PA 1701~
DIANE C. MARTiNEZ-VIDAL, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
vs. : No. 03 - 2723 Civil Term
ENRIQUE J. MARTINEZ-VIDAL,
Defendant
ACTION IN DIVORCE
AFFIDAVIT OF CONSENT
1. A complaint in divorce under section 3301(c) of the Divorce Code was filed on June 10, 2003.
2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety days have elapsed from the
date of the filing and service of the Complaint.
3. 1 consent to the entry ora final decree of divorce after service of notice of intention to request entry of
the decree.
I vari~ that the statements made in this affidavit are true and correct. I also understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. 4904, relating to unswom falsification to
authorities.
'Enriqup. Mar~ez-Vidai, ~efendant
WAIVER OF NOTICE OF INTENTION
TO REQUEST ENTRY OF A DIVORCE DECREE
UNDER ~3301{c} AND §3301(d) OF THE DIVORCE CODE
1. I consent to ant~y of a final decree of divorce without notice.
2. 1 understand that I may lose rights conceming alimony, division of property, lawyer's fees or expenses
ifI do not claim them before a divorce is granted.
3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of
the decree will be sent to me immediately after it is filed with the Prothonotal3'.
I verify that the statements made in this affidavit are true and correct. I understand that false statements
herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities.
Date: Enrique ~. Martin z~Vidal, Def~
DIANE C. MARTINEZ-VIDAL,
Plaintiff
vs.
ENRIQUE J. MARTINEZ-VIDAL,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: No. 03 - 2723 Civil Term
:
: ACTION 1N DIVORCE
AFFIDAVIT OF CONSENT
1. A complaint in divorce under section 3301(c) of the Divorce Code was filed on June 10, 2003.
2. ~[he marriage of Plaintiff and Defendant is irretrievably broken and ninety days have elapsed from the
date of the filing and service of the Complaint.
3. I consent to the entry of a final decree of divorce after service of notice of intention to request entry of
the decree.
1 verify that the statements made in this affidavit are true and correct. I also understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. 4904, relating to unswom falsification to
authorities.
Diane Cyburt, Plaifitiff
f/k/a Diane C. Martinez-Vidal
WAIVER OF NOTICE OF INTENTION
TO REQUEST ENTRY OF A DIVORCE DECREE
UNDER §3301(e) AND §3301(d) OF THE DIVORCE CODE
1. I consent to entryofa final decree of divorce without notice.
2. I understand that I may lose rights concerning alimony, division of propeay, lawyer's fees or expenses
if I do not claim them before a divorce is granted.
3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of
the decree will be sent to me immediately after it is filed with the Prothonotary.
1 verify that the statements made in this affidavit are true and correct. I understand that false statements
herein are made subject to the penalties of 18 Pa.C.S. {}4904 relating to unswom falsification to authorities.
Diane Cyburt, Plaintiff
f/k/a Diane C. Martinez-Vidal
DIANE C. MARTINEZ-VIDAL, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
VS.
ENRIQUE J. MARTINEZ-VIDAL,
Defendant
: No. 03 - 2723 Civil Term
:
: ACTION IN DIVORCE
MARRIAGE SETTLEMENT AGREEMENT
THIS AGREEMENT, madethis ]5 day of t~ ~ ,2004, by and
between, DIANE CYBURT, formerly known as DIANE C. MA~RTINEZ-VIDAL, of
Hillsborough, New Jersey, hereinafter referred to as "WIFE", and Enrique J. Martinez-Vidal, of
Carlisle, Pennsylvania, hereinafter referred to as "HUSBAND".
WITNESSETH:
WHEREAS, Husband and Wife were lawfully married on July 23, 1977, in Cumberland
County, Pennsylvania, and;
WHEREAS, there was one child bom of this marriage;
WHEREAS, differences, disputes, and difficulties have arisen between the parties and it
is the intention of Husband and Wife to live separate and apart for the rest of their natural lives,
and the parties desire to settle their respective financial property rights and obligations as
between each other, including the settling of all matters between them relating to ownership and
equitable distribution of real and personal property; the settling of all matters between them
relating to the past, present, and future support, alimony, and/or maintenance of Husband or
Wife; and in general, the settling of any and all possible claims by one against the other or
against their respective estates;
NOW THEREFORE, Wife and Husband, each intending to be legally bound, hereby
covenant and agree as follows:
1. FULL DISCLOSURE OF ASSETS. Each party warrants that he or she has made a
full and fair disclosure of income, assets, and their valuation prior to the execution of this
Agreement as well as any other fact relating in any way to the subject matter of this agreement.
These disclosures are part of the consideration made by each party for entering into this
agreement.
(30) days of the execution date of this agreement unless otherwise specified within this
agreement.
6. MUTUAL RELEASE OF ALL CLAIMS. HUSBAND and WIFE each do hereby
mutually remise; release, quit-claim and forever discharge the other and the estate of the other~ of
and from any and all rights; titles, and interests, or claims in or against the property (including
income and gain from property hereafter accruing) of the other or against the estate of such other,
including any property acquired after the date of separation, by whatever means or whatever
nature and wheresoever situate, which she or he 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
acts, contracts, engagements, or liabilities of such other or by way of dower or curtesy, or claims
in the nature of dower or curtesy of widow's or widower's rights, family exemption or similar
allowance, or under the intestate 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 the decease spouse's estate, whether arising under the laws of Pennsylvania, any
state, commonwealth, or territory of the United States, or any other country, or any rights which
Wife may have or at any time hereafter have for past, present or future support or maintenance,
alimony, alimony pendente lite, counsel fees, costs or expenses, whether arising as a result of any
marital relation or otherwise, 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
thereof.
7. WARRANTY OF DEBTS AND FUTURE OBLIGATIONS. Each party warrants
that they have not contracted any debt or liability for the other or which the estate of the other
party may be responsible or liable, and except only for the rights arising out of this agreement,
neither party will hereafter incur any liability whatsoever for which the other party or the estate
of the other party, will be liable. Each parly agrees to indemnify or hold harmless from and
against all future obligations of every kind incurred by them, including those for necessities.
8. OUTSTANDING JOINT DEBTS.
(a) Wife agrees that the following debts are her own personal responsibility and therefore
agrees to completely and finally pay on the following debts and obligations.
(b) Husband agrees that the following debts are his own personal responsibility and
therefore agrees to completely and finally pay on the following debts and obligations.
Any and all obligations regarding the marital home.
Any debt related to the beige 2003 Honda Civic, purchased on April 14, 2003.
9. EQUITABLE DIVISION OF MARITAL PROPERTY. The parties have
attempted to distribute their marital property in a manner which conforms to the criteria set forth
in 23 Pa.C.S.A. s3501 et. seq. and taking into account the following considerations: the length of
the marriage, 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 for each
party for future 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
marital property, including the contribution of each spouse as a homemaker; the value of the
property set apart to each party; the standard of living the parties established during the marriage;
and the economic cimumstances of each party at the time the division of 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 the marital rights of the parties.
As such, the parties acknowledge that Husband or Wife's obligation to make the
payments defined in this agreement shall not be subject to termination, discharge, or
discontinuance in bankruptcy or for any other reason or by any Court or tribunal. Should
Husband or Wife pursue and action in bankruptcy and be successful in extinguishing his
obligation to pay any debts for which he has assumed sole obligation as set forth herein, he or she
shall immediately be obligated to pay alimony to the other party in an amount equal to the
monthly obligation on such debts that he or she otherwise had assumed and for which he had
taken sole obligation and responsibility, plus an additional fifteen percent (15%) in consideration
of the tax consequences associated with receipt of alimony. At the time of the implementation of
this alimony award, which may be made through the appropriate Domestic Relations of support
office with the Court of Common Pleas of appropriate jurisdiction as Husband or Wife may
select, such party shall then be responsible for any such debts extinguished through the other
party's bankruptcy as described herein.
10. PERSONAL PROPERTY. Husband and Wife do hereby acknowledge that they
have previously divided all their tangible personal property. Except as may otherwise be
provided in this Agreement, Wife agrees that all of the property of Husband or in his possession
shall be the sole and separate property of Husband; and Husband agrees that all of the property
of Wife or in her possession shall be the sole and separate property of Wife. The parties do
hereby specifically waive, release, renounce, and forever abandon whatever claim, if any, he or
she may have with respect to the above items which shall become the sole and separate property
of the other.
Wife is entitled to obtain a list of personal items from the marital home which is
hereby attached to this agreement and labeled as Exhibit A.
Il. ACCOUNTS.
With respect to the couple's accounts, the parties agree as follows:
(a) VANGUARD ACCOUNT. Husband and Wife currently have accounts with
Vanguard. The accounts are as follows:
Name
Inter-Term Treasury Inv
Life Strategy Growth Fund
Explorer Fund Investor
Number
922031-xx-x
921909-xx-x
921926-xx-x
Wife will retain the entirety of all Vanguard Account as her sole and separate property.
Husband waives any and all interest in these accounts and will cooperate in executing any
documents required by Vanguard to waive his interest in these accounts.
(b) MERRILL LYNCH ACCOUNT. Wife shall receive 100% of the Merrill Lynch
Account. Within ten (10) days of this agreement, Husband shall sign a letter addressed to
Merrill Lynch indicating that he wishes to give up all the rights and benefits of ownership
and that the account should be put in Wife's name alone.
(c) SAVINGS. Husband and Wife currently have a Savings Account with Members
First, Account No. 2006xx-xx. This account is joint and both parties understand that it
will remain solely for the purpose of Alex Martinez-Vidal's college education, except for
$5000.00, which shall be the sole and exclusive property of Wife, and which can be
withdrawn at any time.
(d) ANNUITIES. The parties have agreed as follows regarding the annuities with Fidelity
& Guaranty Life Insurance Company which are all currently held in joint names:
Husband shall receive Policy #3034586, which is a $20,000.00 Lump Sum
Annuity.
Wife shall receive Policy #3043612, which is a $20,000.00 Lump Sum Annuity.
Husband shall receive Policy #L9007808, which is a $5,000.00 Single Premium
Deferred Annuity, and Husband shall give Wife the sum of $2,500.00 in cash
upon the transfer of this policy.
(e) The documents effectuating the transfer of the accounts, if appropriate for effecting
transfer as herein provided, shall be executed within thirty days of this Agreement, and
said executed documents shall be promptly delivered to the appropriate entities. The
parties agree to cooperate in executing all subsequent documents required to effectuate
these transfers.
12. MOTOR VEHICLES. With respect to the motor vehicles, owned by one or both
of the parties, they agree as follows:
(a) The 1998 Toyota 4 Runner shall be and remain the sole and exclusive property of
Wife.
(b) The beige 2003 Honda Civic and the 1993 Honda Civil shall be and remain the sole
and exclusive property of Husband.
The titles to the said motor vehicles shall be executed by the parties, if appropriate for
effecting transfer as herein provided, within thirty days of the execution date of this Agreement,
and said executed titles shall be delivered to the proper parties on the distribution date. Each
party agrees to be solely responsible for the amounts presently due and owing against his or her
respective automobiles. If there is currently an obligation due and owing on any vehicle the
parties agree to transfer the title to the appropriate party under this agreement once the title is
released by the creditor.
13. MARITAL HOME. HUSBAND and WIFE previously held title as Tenants by
the Entireties to the premises identified as 316 S. Orange St., Carlisle, Cumberland County,
Pennsylvania. The parties agree as follows with respect to this marital residence:
(a) On February 12, 2004, a settlement was held by which Husband refinanced the
mortgage obligation on the marital home. As a result of this settlement, Wife was paid
the lump sum of $109,740.00, which represented approximately one-half of the equity in
the marital home minus various costs. Wife accepts this amount in full satisfaction of her
interest and equity in the marital home.
(b) Wife, through her Power of Attorney, has executed a Deed, dated February 12,
2004 transferring her right, title and interest in the marital home to Husband. As of the
date of settlement, Wife waives all spousal interest in the home.
(c) As of the date of settlement, and without regard to when bills for such items are
incurred, received or due, Husband is be solely responsible for all past, present, and future
costs or liabilities associated with or attributable to maintaining the marital residence
(except as provided herein), including but not limited to, the first mortgage obligation, all
real estate taxes, water and sewer rents, gas, electric, and telephone service, homeowner's
insurance, and gardening expenses and repairs, and Husband shall keep Wife and her
successors, assigns, heirs, executors, and administrators indemnified and held harmless
from any liability, cost or expense, including attorney's fees, which are incurred in
connection with such maintenance, costs, and expense.
14, EMPLOYMENT BENEFITS. Except as provided herein, the parties agree to
waive any and all rights they have in and to each other's employment benefits, including but not
limited to both parties pensions and retirement plans and Incentive Savings Plans. The parties
agree never to assume any claim to such benefits of the other at any time in the future.
(a) Wife currently has a Tyco pension and a PSERS pension. Wife will retain these
benefits and Husband waives any and ail interest, including survivorship benefits,
regarding these pensions. Husband agrees to cooperate and execute any additional
forms required to waive his interest in these pensions.
(b) Husband shail transfer, in a tax-free rollover, the sum of $240,000.00 from his TIAA
account, or other such current account, to an account held by wife, by the entry of a
Qualified Domestic Relations Order. The parties shall cooperate in obtaining a Qualified
Domestic Relations Order and arrange to have the Order implemented, and the rollover
transfer accomplished, promptly after the execution of this Agreement.
(c) After the rollover transfer, in accordance with sub-paragraph B. hereof, the remaining
funds and assets within Husband's account within his plan shall be and remain Husband's
property, free and clear of any further claim by Wife. Wife shall waive any survivorship
benefit, if any, in the Plan.
(d) The costs of obtaining a Qualified Domestic Relations Order to transfer the amount
held in the TIAA account shall be paid by Wife.
15. ALIMONY, ALIMONY PENDENTE LITE and LEGAL FEES. Each party
hereby waives any right to spousal support, alimony, or alimony pendente lite, and each party
agrees to be responsible for his or her own legal fees and expenses. The parties herein
acknowledge that by this Agreement, they have respectively secured and maintained a substantial
and adequate fund with which to provide for themselves sufficient financial resources to provide
for their comfort, maintenance, and support in the station of life to which they are accustomed.
Wife and Husband do hereby waive, release, and give up any rights they may respectively have
against the other for alimony, support, or maintenance. It shall be from the execution of this
Agreement the sole responsibility of each of the respective parties to sustain themselves without
seeking any support from the other party.
16. INCOME TAX RETURNS. Husband and wife represent to each other that to the
best of their knowledge all federal, state, and local taxes required to paid with during the
marriage and during the periods covered by such tax returns have been paid. Husband and Wife
further represent that there are no tax deficiencies proposed or assessed against Husband and/or
Wife for such periods, and neither Husband nor Wife executed any waiver of the Statute of
limitations on the assessment or collection of any tax for such periods. If any deficiency in
federal, state, or local income taxes is proposed, or any assessment of any such tax is made
against the other party by reason of his or her having joined in the filing of joint federal, state or
local income tax returns, Husband and Wife shall indemnify and hold harmless the other against
and from any and all tax, interest, penalty, or expense relating from any such tax deficiency,
including reasonable counsel and accounting fees; and such tax, interest, and penalties or
expenses shall be paid solely and entirely by the responsible party as determined to be
attributable to that party on account of misrepresentation or failure to disclose relevant
information of income on the aforesaid joint returns.
CAPITAL LOSS: The parties experienced a large capital loss during the 2003 tax year
and are entitled to carry this loss forward. The capital loss carry-forward shall be split in half
since the property causing the losses were jointly held. Capital loss carry-forwards must be
allocated based on the separate capital gains and losses of the spouses. The capital loss shall be
carried to future tax years until the loss is used.
DEDUCTION: The parties agree that Husband shall be entitled to claim Alexander
Martinez-Vidal as a tax deduction as long as Alexander is living with Husband and Husband is
entitled to claim him under the Tax Code.
17. HIGHER EDUCATION. Husband and Wife agree to be equally responsible to
divide the cost of post high school education for their son, Alexander Martinez-Vidal, until he
becomes 21, on March 15, 2007. The costs shall include, bat not be limited to the following:
tuition, room, board, books, supplies, fees, transportation, and clothing. Husband shall provide
Wife with a list of monthly expenditures and Wife shall reimburse Husband within seven days of
receipt of the expenditures.
18. WAIVER OR MODIFICATION TO BE IN WRITING. No modification or
waiver of any of the terms hereof shall be valid unless in writing and signed by both parties, and
no waiver of any breach hereof or default hereunder shall be deemed a waiver of any subsequent
default of the same or similar nature.
19. MUTUAL COOPERATION. Each party shall, at any time and from time to time
hereafter, take any and all steps and execute, acknowledge, and deliver to the other party any and
all further instruments and/or documents that the other party may reasonably require for the
purpose of giving full force and effect to the provisions of this Agreement.
20. APPLICABLE LAW. The Agreement shall be construed in accordance with the
laws of the Commonwealth of Pennsylvania which are in effect as of the date of execution of this
Agreement.
21. INTEGRATION. This Agreement constitutes the entire understanding of the
parties and supersedes any and all prior agreements or negotiations between them. There are no
representations or warranties other than those expressly set forth herein.
22. OTHER DOCUMENTATION. Wife and Husband covenant and agree that they
will forthwith execute any and all written instruments, assignments, releases, satisfactions, deeds,
notes, or such other writings as may be necessary or desirable for the proper effectuation of this
Agreement.
23. NO WAIVER OF DEFAULT. This Agreement shall remain in full force and effect
unless and until terminated under and pursuant to the terms of this Agreement. The failure of
either party to insist upon strict performance of any of the provisions of this Agreement shall in
no way affect the right of such party hereafter to enforce the same, nor shall the Waiver of any
default or breach of any provision hereof by construed as a waiver of any subsequent default or
breach of the same or similar nature, not shall it be construed as a waiver or strict performance of
any other obligations herein.
24. 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 provisions shall be stricken from this Agreement; and in all other respects,
this Agreement shall be valid and continue in full force, effect, and operation. Likewise, the
failure of any party to meet his or her obligations under any one or more of the paragraphs herein,
with the exception of the satisfaction of the conditions precedent, shall in no way avoid or alter
the remaining obligations of the parties.
25. BREACH. If either party breaches any provisions of this agreement, the other party
shall have the right, at his or her election, to sue for damages for such breach, or seek other
remedies or relief as may be available to him or her, and the party breaching this contract should
be responsible for payment of legal fees and costs incurred by the other in enforcing their rights
under this agreement.
26. INFORMED AND VOLUNTARY EXECUTION. Each party to this agreement
acknowledges that he or she is fully informed as to the facts relating to the subject matter of this
agreement, is entering into this agreement voluntarily, free from fraud, undue influence, coercion
or duress of any kind, has given careful thought to the making of this agreement, has carefully
read each provision of this agreement, and fully and completely understands each provision of
this agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and
year first above written:
WITNESS: C
DIANE CYBURT, Wife
Adams, E s~lr'~
· Pitt St.
isle, Pa. 17013
7) 245-8508
Attorney for Wife.
~/ Carlisle, Pa. 17013
Date: [.~ [~2~ ' ~) (717) 243-6222
Attorney for Husband.
EXHIBIT A
Contents of 316 S. Orange St. that will be retained by Diane
Item
Cyburt: (REVISED 3/8/04)
Present Location
Bistro set of black marble table and two black chaim
white horizontal bookcase
cookbooks, cooking magazines
Diane's textbooks
Deacon's bench
basement
basement
basement
basement
basement
Multi-colored Karastan 8x10 rug
Piano and bench
Curio Cabinet
Lladr6 statues in curio cabinet
Cloisonn6 jars in curio cabinet
round drop-leaf table and lamp in front window
Living Room
Living Room
Living Room
Living Room
Living Room
Living Room
Diane's cookbooks
cooking utensilsPoakeware that were Diane's
Stmbeam mixer and attachments
Bread machine
Kitchen, Family Room
Kitchen
Kitchen
Kitchen
Set of china (Diane's)
Silverware (Diane's mother's)
Dining Room
Dining Room
Desk and chair
Walnut furniture and Diane's L.P.'s
Multi-colored Karastan rug 3 x 5
Family Room
Family Room
Family Room
Chiffarobe
Sewing machine
Sewing box
Demi-lune table, mirror, and small Stiffel lamp
1998 Gateway computer, printer, and stand
Vertical bookshelves
Oil paintings
Patti Clifford's painting
Master bedroom
Master bedroom
Master bedroom
Upstairs hallway
Upstairs office
Upstairs office
Dining Room
Living Room
Note:
The following items will be retrieved by Diane when Enrique moves to another location and doesn't need
them anymore:
-Lane bedroom set that Diane had pumhased in 1975:
headboard for double bed, 2 night stands, chest of drawers, dresser/mirror
-Light colored wood chest of drawem (part of Diane's baby furniture set)
- White corner cabinet in basement
DIANE C. MARTINEZ-VIDAL,
Plaimiff
VS.
ENRIQUE J. MARTINEZ-VIDAL,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: No. 03 - 2723 Civil Term
:
: ACTION IN DIVORCE
PRAECIPE TO TRANSMIT RECORD
TO THE PROTHONOTARY:
Transmit the record, together with the following information to the Court for entry of a
divorce decree:
1. Ground for divorce: irretrievable breakdown under §3301(c) of the Divorce Code.
2. Date and manner of the service of the Complaint: Delivered by certified mail.
restricted delivery, return receipt requested, delivered on: June 13, 2003
3. Date of execution of the affidavit of consent required by 3301(c) of the Divorce Code:
By Plaintiff: April 12, 2004
By Defendant: April 13, 2004
4. Related claims pending: None.
5. Date Defendant's Waiver of Notice in §3301(c) Divorce was filed with the
Prothonotary: April 14, 2004
Date Plaintiffs Waiver of Notice in §3301(c) Divorce was filed with the
Prothonotary: April 15, 2004
Respectfully Submitted:
J~e Adams, Esquire
I.~. No. 79465
~ S. Pitt Street
Carlisle, Pa. 17013
(717) 245-8508
Attorney for Plaintiff
IN THE COURT OF COMMON
OFCUMBERLANDCOUNTY
STATE OF ~~.
Diane C. Martinez-Vidal, Plaintiff ~~'
NO.
PENNA.
No. 03 - 2723
PLEAS
Civil Term
VERSUS
Enfique J. Martinez-Vidal, Defendant
DECREE IN
DIVORCE
AND NOW, ~:;gt~ O~(~ ,;1:~, IT IS ORDERED AND
Diane C. Martinez-Vidal, now known as Diane Cyburt
DECREED THAT , PLAINTIFF,
Enrique J. Martinez-Vidal
AND , DEFENDANT,
ARE DIVORCED FROM THE BONDS OF MATRIMONY.
THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE
BEEN RAISED OF RECORD IN THIS ACTION FOR WHICH A FINAL ORDER HAS NOT
YET BEEN ENTERED;
None; The property settlement agreement executed on April 12, 2004
And filed April 15, 2004 is incorporated but not merged into this Decree.
ATTEST:
PROTHONOTARY
DIANE C. MARTINEZ-VIDAL,
Plaintiff
VS.
ENRIQUE J. MARTINEZ-VIDAL,
Defendant
: 1N THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: No. 03 - 2723 Civil Term
:
: ACTION 1N DIVORCE
DOMESTIC RELATIONS ORDER
AND NOW, THIS
the Court as follows:
day of ~d---~-'"-, 2004, it appears to
1. The parties hereto were husband and wife, and seek this Order in conjunction with a
final Decree of Divorce dated April 29, 2004, and a marriage settlement agreement which was
signed by the parties April 12, 2004, and filed with the Prothonotary on April 15, 2004, under the
above-caption and number
2. Enrique J. Martinez-Vidal, Soc. Sec. No. 205-28-8028, date of birth, December 9,
1932, hereinafter referred to as "Participant", is retired, was foxmefly employed by Dickinson
College, and is a participant in the Teachers Insurance and Aunuity Association - College
Retirement Equities Fund, hereinafter "TIAA-CREF" and has the following annuities, with the
following values, as of May 25, 2004:
Contract
Accu _mulation ~
TIAA IL, x. Contract No. C83743A0
$150 768 29
Contract No. IP12350-9
$216,100.48
Contract No. IP00552-4
$35,572.51
3. Enrique J. Martinez-Vidal's current and last known mailing address is 316 S. Orange
Street, Carlisle, Pa. 17013. He is currently pro se, and has requested that his former attorney not
represent him regarding this stipulation. (Please See Exhibit A'.
4. The Alternate Payee is Diane Cyburt, formerly known as Diane C. Martinez-Vidal,
whose current mailing address is: 25 Delbarton Court, Hackettstown, NJ 07840.
5. The Alternate Payee's Social Security Number is: 156-40-0001, and her date of birth
is January 26, 1953.
6. To facilitate the marital property distribution between the parties IT IS
ORDERED, ADJUDICATED AND DECREED AS FOLLOWS:
A. That the TIAA-CREF annuities previously referenced are marital property:
Upon finalization of this Order and pursuant to tlhe terms of said annuities, the
current values as of the valuation date of the Parl:icipant's TIAA-CREF annuity
accumulations for Alternative Payee's Marital Portion defined below shall be
awarded as the Alternate Payee's sole and exclusive property to be applied to
TIAA-CREF annuities subject to the terms and limitations of said annuities:
i. Alternative Payee's Marital Portion. The Alternative Payee's Marital
Portion, which is the dollar amount of $240,000.00, as agreed by the parties in the
marriage settlement agreement, shall be transferred to Alternate Payee. Alternate
Payee's Marital Portion is, and shall be transferred to Alternative Payee as
follows:
Contract
Accumulation_n__O~5/04) Transfer Amount:
TIAA RA Contract No. C83743A0 $150,768.29
$23,899.52
Contract No. IP12350-9
$216,100.48
$216,100.48
Contract No. IP00552-4
$35,572.51 $0
ii. Accumulations. Accumulations are to be valued as of April 12, 2004, which
is the date the marriage settlement agreement between the parties was executed.
iii. Transfer Values. The values actually transfi~rred will reflect interim
investment experience until the transfer is recorded by TIAA-CREF. The TIAA
Traditional accumulation will increase over time, whereas the TIAA Real Estate
mhd CREF accumulations may increase or decrease, reflecting the performance of
the underlying investments.
Conditions of division of annuity contracts:
i. All ownership and interest in the balance of the accumulations not
transferred in all annuities issued to the Participant by TIAA-CREF will
belong to the Participant.
ii.
iii.
All ownership rights in the newly issued annuities will belong to the
Alternate Payee.
The beneficiary designation of the Alternate Payee's armuities will be his
or her estate, unless a beneficiary designation is submitted pursuant to the
provisions of the contracts, and accepted by TIAA-CREF. The Alternate
Payee must review the contracts at issuance for accuracy and inform
TIAA-CREF of any change of address.
The Alternate Payee's annuities will be issued with the same investment
allocation as the Participant's applied pro rata. The Alternate Payee may
change the investment allocation once his or her annuities are issued in
accordance with the contributing employer's plan.
Reaffirmation/Termination of Altemate Payee's status as beneficiary of
record for all annuity contracts or individual life insurance funded through
TIAA-CREF on the life of the Participant:
Termination. - as of the date of the TIAA-CREF's receipt of the QDRO,
all TIAA-CREF benefits otherwise payable to the Alternative Payee as
beneficiary are payable to the estate of the Participant. The Participant
retains the right to change the designation.
TIAA Traditional Retirement Annuities (R. As) do not allow single-sum
withdrawals or transfers to alternate carriers. For other TIAA-CREF annuities,
the Alternate Payee's right to receive single-sum withdrawals and/or transfer all
or a part of the accumulation to an alternate carrier may be limited in accordance
with the contributing employer's plan.
F;
The parties are directed to submit to TIAA-CREF all documents and
releases (if required by TIAA-CREF) to finalize the Order within 30 days
o£ the request for same.
7. This Order:
A. Does not require any plan to provide any type of form of benefit, or any
Options not otherwise provided under the plan, and
B. Does not require TIAA-CREF to provide increased benefits, and
C. Does not require the payment of benefits to an Alternate Payee which are
required to be paid to another Alternate Payee under another Order
previously determined to be a Qualified Domestic Relations Order.
D. If any portion of this order is rendered invalid, the balance of the order
will remain fully enforceable.
8. The Parties have indicated their consent to their agreement as follows:
Enri~ue ii. IVl~rtinez-'~'id~l
Defendaut/Me~ber
PRO SE
Dated: ~': · ,~ - 0 ~/
Diane Cyburt,ff/k]a Diane C Martinez-Vidal
Plaintiff/Alternate Payee
Jj~ne Adar~s, Esquire
~,/32~. Pitt St.
Carlisle, Pa. 17013
Attorney for Alternate Payee
Dated: F' e~2',:> ~
9. This Court reserves jurisdiction to issue further orders as needed to execute this
Order.
ORDERED AND DECREED THIS ~ day of
,2004.
By the Court:
Judge Edg~a~'
JOHN E. SLIKE
ROBERT C. SAIDIS
GEOFFREY S. SHUFF
JAMES D. FLOWER, JR
CAROL J. LINDSAY
MATTHEW J. ESHELMANt
KIRK S. SOHONAGE
THOMAS E. FLOWER
LINDSAY GINGRICH MACLAY
JACLYN SMITH
LAW OFFICES
SAIDIS, SHUFF, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
26 WEST HIGH STREET
CARLISLE, PENNSYLVANIA 17013
TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486
EMAIL: attor ney@ssfl-law.com
www.ssfl-law.com
CAMP HILL OFFICE:
2109 MARKET STREET
CAMP HILL, PA 17011
TELEPHONE: (717)737-3405
FACSIMILE: (717)737-3407
REPLY TO CARLISLE
June 17, 2004
Jane Adams, Esquire
36 South Pitt Street
Carlisle, PA 17013
RE: MARTINEZ-VIDALV. MARTINEZ-VIDAL
No. 03-2723 Civil Term
Dear Jane:
I forwarded your proposed Qualified Domestic Relations Order to Enrique Martinez-
Vidal. It is his intention to review that document with his financial advisor. He no longer
needs my involvement in this case. I expect you can hear from him directly in that
regard. Thank you for your help.
Very truly yours,
SAIDIS, SHUFF, FLOWER & LINDSAY
Carol J. Lindsay
CJL:ap
cc: E. Martinez-Vidal