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HomeMy WebLinkAbout99-00815 . '. APR 1 6 1999.\ \Iv Patricia A. Haller, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 99-815 CIVIL TERM V. . James D, Haller, Defendant : IN DIVORCE , Plaintifrs Petition to Schedule Hearinl! for Alimonv Pendente Lite and Counsel Fees NOW, 'comes the plaintiff, Patricia A. Haller, by her attor::1ey, Thomas J. Ahrens, Esquire, and files this Petition for a hearing on Alimony Pendente Lite and counsel fees against the defendant, representing as follows: 1. The plaintiff, Patricia A. Haller, filed a Complaint in Divorce on February II, 1999 requesting Alimony Pendente Lite, counsel fees and costs. WHEREFORE, Plaintiff requests that a hearing be scheduled on this matter. Respectfully submitted, ,j(J/l M Thomas J. rens, Esquire 28 South Hanover Street Carlisle, PA 17013 (717) 240-2655 '- t C:; c :' ...:~ ::':j. ,- 0\ ll.l5~.~ r):'1: 0'" .- ;~):~ G.:G: 0,,-.. 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I EtU... u C::Z U.JLU :J:~ '. lLl 0') n.. 1-' a ..?; u. Cj) ::J 0 en ~ v,. \... PATRICIA A, HALLER, Plaintiff ) ) ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs, CIVIL ACTION - LAW NO, 99-815 CIVIL TERM JAMES D, HALLER, Defendant IN DIVORCE NOTICE TO PLAINTIFF NAMED HEREIN: YOU ARE HEREBY NOTIFIED TO RESPOND TO THE ENCLOSED ANSWER TO DEFENDANT'S PETITION TO ENFORCE PROPERTY SETTLEMENT AGREEMENT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. , By ~Sf{S:jQ Samuel L. Andes Attorney for Defendant Supreme Court ID 17225 525 North 12th 'Street Lemoyne, PA 17043 (717) 761-5361 j~ without a Qualified Domestic Relations Order and a final Decree in Divorce, Defendant has made payments to Plaintiff, through the Domestic Relations Office, since June of 1999 and tho," p'ym"" h,ve boo, m'de 'mm th, be""" h, h.. mooi"d 'mm hi, pe",,". I 8. Denied, Only a portion of Defendant's pension benefits are marital property subject to equitable distribution, 9. Denied. Plaintiff's income is currently greater than that of Defendant and Plaintiff is better able to financially support herself than is Defendant. Both of the parties are making whatever contributions they can to the expenses and support of their adult children and neither party has a legal obligation to make any further contribution to the support of those children, 10. Defendant admits that he is presently spending all of his pension benefits to meet his reasonable living expenses, 11. Denied, The parties have other marital property, including the proceeds of the sale of the former marital residence, all of which are currently within the control of Plaintiff and her attorneys. In the event that Defendant would be found to owe Plaintiff any portion of the pension benefits which were paid to Defendant prior to this Court's proper and legal division or distribution of those benefits, Defendant would be able to compensate Plaintiff 'for those payments. 12. Defendant admits that he has received seven months of payments on his . pension, whatever that total sum may be. 13. . Denied. Defendant has not received a "retirement severance benefit" or any similar payment in the amount of $10,000.00, The only payment Defendant has received as a result of his employment is the monthly pension benefit which is described herein above. .;>0 14. Admitted, However,nosuch severance benefit exists and Plaintiff is entitled to no portion of that alleged benefit. 15. Denied. It is admitted that Defendant has received his pension benefits, which are his current. income, It is denied that he has received marital property in the amount of $20,000,00 or that he has received any severance benefits. 16. Denied. Defendant has not dissipated marital assets but has used them to meet his reasonable living expenses and support himself, in accordance with the intended purpose of such retirement benefits, WHEREFORE, Defendant prays this Court to dismiss Plaintiff's Petition and allow all of the marital assets to be equitably distributed in accordance with law at the time a final Decree in Divorce is entered, NEW MATTER 17, Defendant's pension benefits are only a part of the marital assets in the case, which include pension benefits which the Defendant believes the Plaintiff has accrued during the marriage, the cash proceeds from the sale of the parties' residence, household . furnishings, motor vehicles, bank account balances, and other assets. 18, Defendant's pension benefits cannot be equitably distributed without a Qualified Domestic Relations Order. Without the entry of such an order, Plaintiff is not entitled to be paid any portion of Defendant's retirement benefits. 19, A Qualified Domestic Relations Order may not be entered without the entry of a final Decree in Divorce, 20, Plaintiff's proper remedy for the division of retirement benefits prior to. a final Decree in Divorce and a Qualified Domestic Relations Order is through an award of Alimony Pendente Lite, ,. 2 L Plaintiff requested the entry of an order of Alimony Pendente Lite and that matter was reviewed by the Court and an Order was entered denying her Alimony Pendnete Lite, Based upon the incomes of the parties, including Defendant's pension benefits, the law of Pennsylvania, and the guidelines which apply to Alimony Pendente Lite, do not justify or allow an award of Alimony Pendente Lite to Plaintiff, , 22. Were the Court to divide Defendant's pension benefits prior to the entry of a final Decree in Divorce, the result of such an advance division would be to change the parties' income sufficiently that Defendant would be entitled to an award of Alimony Pendente Lite from Plaintiff, 23. Any division or distribution of Defendant's pension benefits prior to the Court hearing and deciding all of the economic issues and making an order for final distribution of all of the marital assets would result in an unfair financial hardship on Defendant and would be 'contrary to the law of Pennsylvania, which does not permit the equitable distribution of marital assets until such time as a Divorce Decree has been entered. 24, The special relief requested by Plaintiff will do more harm and damage to both parties than would the denial of that request. WHEREFORE, Defendant prays this Court to dismiss Plaintiff's Petition for Special Relief and allow this matter to proceed in the normal course of litigation of such divorce actions. ~Q,-~ Samuel L. Andes . Attorney for Defendant Supreme Court ID # 17225 525 North 12th Street Lemoyne, PA 17043 (717) 761-5361 ,,- i:l.: I' UJr! ( ).-' .. ~, . ~.;: :t: 0",1 "r'l " " ~'..' . O. ("i ,'.;; J:: >:: __'J _ ~_J ~) '-_J'.:,.: ",.... O.~ : :~! 4'~ ~'i-: I r.::. ,., tJ.~: C.:' C:J :._l \.) .. i(.J " c,) I I I. . '" 't ~ 0 en w !: I<l . A ~ = ~ ~ % z ... " -< E-< t Q " ~ ~ ~ , . >-< ~ x " " w 0 Ul H w ~ . >: >: ~ 6 ~ I<l fl: . W . ;:l 0 ;:; 0: '" ::;: ... " oi ~ 0 ciJ z :< n " . " 2 n -. W ... . . 1 I It 7, IOINT ArrOI JNTS The parties shall stop using all joint bank and charge accounts, credit card accounts and any other joint accounts shall be tenninated and each party shall take those steps necessary to have the other removed as a responsible party from such accounts, The parties further specifically agree that all bank, savings, cash and checking accounts shall become the sole property of party named on the account. 8. MARITAl lIAR" ITIFS Unless otherwise set forth herein, Wife assumes full responsibility for any indebtedness which she has contracted or incurred in her name, alone or jointly, after the date of separation. Unless otherwise set forth herein, Wife represents and warrants to Husband that, since the filing of the divorce action, she has not contracted or incurred any debt or liability, for which Husband or his Estate might be responsible, and shall indemnifY and save Husband hamlless from any and all claims or demands made against him or his Estate by reason of debts or obligations incurred by Wife and/or assumed herein. Unless otherwise set forth herein, Husband assumes full responsibility for any indebtedness which he has contracted or incurred in his nanle, alone or jointly, after the date of execution of this Agreement. Unless otherwise set forth herein, Husband represents and warrants to Wife that, since the filing of the divorce action, he has not contracted or incurred any debt or liability, for which Wife or her Estate might be responsible, and shall indemnify and save Husband harmless rromany and all claims or demands made against her or her Estate by reason of debts or obligations incurred by Husband and/or assumed herein. All obligations currently being paid by Husband shall be deemed the continuing obligation . of Husband until said obligation is paid in full. All obligations currently being paid by Wife shall be deemed the continuing obligation of Wife until said obligation is paid in full. i~ Page 6 of 13 9, OTHPR MARITAl ASSPTS Wife shall be entitled to any funds which remain from the parties' sale of their marital residence, to wit, approximately Onc Thousand Two Hundred Dollars ($1,200,00). It is specifically agreed by the parties that any payment or obligation due under this agreement shall not bc dischargable in bankruptcy. 10, TAX IIARI1.1TY The parties hereto believe and agree that the division of property heretofore made by this. Agreement is a non-taxable division of property between co-owners rather than a taxable sale or exchange of property. Each party promises not to take any position with respect to the adjusted basis of the property assigned to him or her with respect to any other issue which is inconsistent with the position set forth in the preceding sentence on his or her Federal or State income tax return (' 11. MI JTllAI. RPI PASF. Subject to the provisions of this Agreement, each party waives his or her right to alimony any further distribution of property inasmuch as the parties hereto agree. that this Agreement provides for an equitable distribution of their marital property in accordance with Pennsylvania's Divorce Code. Subject to the provisions of this Agreement, each party has released and discharged, and by this Agreement does for himself or herself, and his .or her heirs, legal representatives,. executors, administrators and assigns, release and discharge the other of and from all caused of action, claims, rights or demands whatsoever in law or equity, which either of the parties ever had or now has against the other, except any or all causes of action for divorce and except any or all caused of action for any breach of any provision of this Agreement. 12. AlIMONY Both parties mutually waive all spousal support or alimony from the other. Both parties , PAH ValJ if- J~ Page 7 of13 acknowledgc and agrcc that thc provisions 01' this Agrcement providing 101' thc waivcr 01' alimony arc fail', adcquate and satisCactory bascd on actual nccd, ability to pay, duration of thc marriage and other rclevant factors taken into considcration by thc parties. Although the approval of this Agreement by a court of competent jurisdiction in connection with this action in divorce filed by Husband or Wife shall be deemed an order of the court any may be enforccd as such, this Agreement, insofar as it pertains only to spousal support and thc payment of alimony following the entry of a final Decree in Divorce bctween thc parties, may not be modified, suspended, terminated or reinstated at the instance of request of either party, or subject to further order of any court upon changed circumstances. Upon that condition, both parties hereby accept the provisions in this Agreement in lieu of and in full and final settlement and satisfaction of all claims and demands that either may now or hereafter have against the other for spousal support or alimony and both parties voluntarily and intelligently waive and relinquish any rights to seek a modification, suspension, temlination, reinstatement, or other .court order with respect to the temlS of this Agreement pertaining to the payment of support or alimony. .13. AT ,TMONY PFNOFNTF T .ITF, rOT JNSFT FFFS A NT) FXPFNSFS Both parties hereby acknowledge and accept that the provisions of this Agreement providing for the equitable distribution of marital property are fair, adequate and satisfactOlY to them. Both parties agree to accept the provisions of this Agrecmcnt in Heuof and in full and final , settlement and satisfaction of all claims and demands that either may now or hereafter have against . the other. Husband specifically agrees to pay any and all eounsellees for Wifc within 90 days of the execution of,this agreement. Wife'~ counsel shall provide a statement of fees and costs within 30 days of the execution of this agreement. Husband shall remit said payment directly to Wife's counsel within the time frame allocated herein. 14. TNrOMFTAXRFTITRNS Husband and Wife agree to individual tax retul11s for 2000 and thereafter until their divorce Page 8 of 13 is final. Each parties shall solely responsible for any and all Federal, State and Local tax liability beginning in 2000 and thereafter. Each parties shall have the exclusive rightlo any and all refunds based on their Federal, State and Local tax returns beginning in 2000 and thereafter 15. .wAIVER or rr AIMS AGAINST rSTATrS Except as herein otherwise provided, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she may now have or hereafter acquire, under the present or future laws of any jurisdiction, to share in the property or the estate of the other as a result of the martial relationship, including, without limitation, dower, curtsey, statutory allowance, widow's allowance, right to take intestacy, right to take against the will of the. other, and right to act as administrator or executor of the other's estate. Each will, at the request of the other, execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry into effect this mutual waiver and relinquishment of all such interests, rights and claims and both parties will revoke prior wills or testamentary documents. 16. AGREEMENT NOT PREOIrATEO ON nIVORrE It is specifically understood and agreed by and between the parties hereto and each of the, said parties does hereby warrant and represent to the other, that the execution and delivery of this Agreement is not predicated upon nor made subject to any agreement for institution, prosecution, defense, or for the non-prosecution or non-defense of any action for divorce; provided, however, that nothing contained in this Agreement shall prevent or preclude either of the parties hereto from commencing, instituting or prosecuting any action or actions for divorce, either absolute or otherwise, upon just, legal and proper grounds; nor to prevent either party from defending any such action which has been, mayor shall be instituted by the other party, or from making any just or proper defense thereto. 17. SI JRSEQl lENT mVORrE Page 9 of 13 There is a pending divorce filed by Wife against Husband in Cumberland County. 18. RRFAC'H ANn FNFORC'FMFNT If either party hereto breaches any of the provisions of this Agreement, the other party shall have the right to bring any actions or actions in law or equity for such breach, and the breaching party shall be responsible for the payment of all costs and reasonable legal fees incurred by the other party in enforcing his or her rights under this Agreement. It is expressly understood and agreed by and between the parties hereto that this Agreement may be specifically enforced by either party in Equity, and the parties hereto agree that if an action to enforce this Agreement is brought in Equity by either party, the other party will make no objection on the alleged ground of lack of jurisdiction of said Court on the ground thatthere is an adequate remedy at law. The parties do not intend or purport hereby to improperly confer jurisdiction on a Court in Equity by this Agreement, but they agree as provided herein for the forum of equity in mutual recognition of the present state of the law, and in recognition of the general jurisdiction of Courts in Equity over agreements such as this one, 19. RF-AC'KNowr FnGMFNT . Each party acknowledges that it may be appropriate and required that this Agreement be re- acknowledged at some time in the future before the Clerk of the Commonwealth Court, Clerk of Orphans Court or some other Court, and each party agrees that they will re-acknowledge their signature before the Clerk of such Court upon request of the other party so that this Agreement may comply with the acknowledgment rules and provisions of any such Court. 20. AnmTrONAr TNSTRlTMFNTS. Each of the parties hereto agrees that he or she will join in the execution, acknowledgment and delivery of any deed or other document which may be reasonably necessary to cany out the intent of this Agreement, and, in the event either of the parties hereto would not join in the Page 10 of 13 execution, acknowlcdgmcnt and dclivery of' such instrumcnt, thcn such party docs hcrcby irrevocably appoint the othcr party hcrcto as his or hcr Attorney-in-Fact to cxccutc, acknowlcdgc and deliver such instrument hercby ratif'ying all that such othcr party hercto may do by virtuc hereof' with a copy of' this Agrecment to bc a suf'ficicnl Power of Attorney to earry out the intcnt and purpose of this paragraph. Nothing contained in this section shall affcct the right of one party to expressly include or exclude, as the case may be, the other party as. beneficiary in any will, insurance policy or other document whether the same is presently in effect or would become effective in the future, 21. VOT TTNTARY FXFClJTlON The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective legal represcntatives, and each party acknowledges that the Agreement is . fair and equitable, that it is being entered into voluntarily, with full knowledge of the assets'ofboth parties, and that it is no the result of any duress or undue influence. The parties acknowledge that they have been fumished with all infonnation relating to the financial affairs of the other which has been request,ed by each of them or their respective counsel. 22. FNTIRF AGRFFMFNT This Agreement contains the entire understanding of the parties and there are not representations, warranties, covenants or unde11akings other than those expressly set forth herein. 23, msrr OST IRF Each of the parties hereto acknowledges that there has been full disclosure of all relevant matters of each party to the other party, that each of the parties is fully cognizant of his and her legal rights and liabilities wi'th respect to the terms and conditions of this Agrecment, that he and she understand the legal cffect of this provisions of this Agrecment and acknowledge that this Agreement is fair and equitable to cach of the pm1ies hereto, and that this Agreement was entered PAH J Pagc II 01'13 " , . '~ ." .- ~ ~ .".... '..'.;' , , ,,- ("I ?-= t.o; ...:J -7 ~ r.._ Lu ~~) oj ;=hr () ',": .'- ~:, ( , ~.- I' ,,' ....:; (~!,::,j . .'" ~, 1-_ >- (i'C) .' ~~. t..D '~;) ri') ....... ;~ . L!:i(j.~ I '''''7 ~:Ir.I.( C) ~J~j !:i..i li.. 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