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Home My WebLink About03-2815KENNETH E. NICELY, Plaintiff v H. KAY DAILEY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 03 - o~I~'~ CIVIL ACTION - LAW : IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTE 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 wit.hour you and a decree of divorce or annulment may be entered against you by the Court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the grounds for divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Prothonotary's Office at the Cumberland County Courthouse, Carlisle, Pennsylvania. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES, BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 717-249-3166 KENNETH E. NICELY, Plaintiff V H. KAY DAILEY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03 - CIVIL ACTION - LAW IN DIVORCE COMPLAINT Plaintiff, Kenneth E. Nicely, by his attorneys, Broujos & Gilroy, P.C., sets forth the following: 1 Plaintiff, Kenneth E. Nicely, is an adult individual residing at 11 Wiltshire West, Carlisle, Cumberland County, Pennsylvania 17013. 2 Defendant, H. Kay Dailey, is an adult individual residing at 2216 Newville Road, Carlisle, Cumberland County, Pennsylvania. 3 The parties were married on October 25, 1980, in Carlisle, Pennsylvania. 4 Plaintiff and Defendant have lived continuously in the Commonwealth of Pennsylvania for at least six months prior to the commencement of this action. 5 Plaintiff has been advised that counseling is available and that Plaintiffmay have the right to request that the Court require the parties to participate in counseling. 6 There have been no prior actions for divorce or annulment in this or any other jurisdiction within the knowledge of the Plaintiff. 7 In accordance with Section 3301(c) of the Divorce Code, the marriage between the parties is irretrievably broken. WHEREFORE, the Plaintiff requests your Honorable Court to decree that the Plaintiff be divorced from the Defendant. BROUJOS & GILROY, P.C. BY-Hubert X. Gdroy, Esquiu~t" Atto .rney for Plaintiff f Broujos & Gilroy, p.~. 4 North Hanover Street Carlisle, PA 17013 717 - 243-4574 I verify that the statements in the foregoing pleading 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. KENNETH E. NICELY KENNETH E. NICELY, Plaintiff H. KAY DAILEY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 03- ~'/3~ CIVIL ACTION-LAW : : IN DIVORCE PRAECIPE TO THE PROTHONOTARY: Please enter the appearance of Gerald S. Robinson of Robinson & Geraldo, P.C. on behalf of Defendant H. Kay Dailey in the above matter. Also, please note that the undersigned has accepted service of the Divorce Complaint filed in this ease as of the f'~ '~ day of June, 2003. Resp~/i ully submitted, Geral~ Robinson, Esquire Attoa,hey for Defendant Robinson & Geraldo, P.C. 4407 North Front Street P.O. Box 5320 Harrisburg, PA 17110 KENNETH E. NICELY, Plaintiff V H. KAY DAILEY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA _. : 2003 - 2815 CIVIL ACTION - LAW : : IN DIVORCE AFFIDAVIT OF CONSENT AND WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER SECTION 3301(c) OF THE DIVORCE CODE 1. A Complaint in divorce under Section 3301(C) of the Divorce Code was filed on June 16, 2003. 2. Defendant acknowledges receipt and accepts service of the Complaint on or about June 17, 2003. 3. The marriage of the Plaintiff and Defendant is irretrievably broken and ninety days have elapsed from the date of the filing of the Complaint. 4. I consent to the entry of a f'mal decree of divorce without notice. 5. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 6. 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. 7. I have been advised of the availability of marriage counseling and understand that I may request that the Court require counseling. I do not request that the Court require counseling. 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 unsworn falsification to authorities. Date: ~q ] 1'-7 I ~'}-EY'3~ ~/~1~, ~/~ Plaintiff/Defendant ~ PROPERTY SETTLEMENT AGREEMENT THIS IS AN Agreement made this ~5'~day of June, 2004, by and between Kenneth E. Nicely, (hereinafter referred to as Husband) and H. Fuly Dailey, (hereinafter referred to as Wife). WHEREAS, Husband and Wife were married on October 25, 1980; and WHEREAS, various differences have arisen between Hnsband and Wife, whereby they have been living separate and apart; and WHEREAS, Husband has commenced a divorce action against Wife docketed at No. 2003 - 2815 in Cumberland County, Pennsylvania; and WHEREAS, the parties desire to enter into an amicable settlement to provide for all of the property rights of the parties and to dispose of the right,.~ and obligations of each to the other in respect to support, maintenance, alimony, counsel fees, equitable distribution, and all other rights and obligations under the Divorce Code of 1980, as amended, and it is the intention and agreement of the parties that this Agreement be a full, complete and final settlement of all of those rights and obligations under said Divorce Code; and NOW, THEREFORE, for and in exchange of mutual considerations, and intending to be bound by the provisions hereof, the parties agree that their recitals form a part of this Agreement and waive any right to counseling under the Divorce Code of 1980, as amended, and right to counsel fees, costs, alimony, support, maintenance, and any other rights under the said Divorce Code not provided for herein and agree '.as follows: 1 The parties agree that it shall be lawful for each party, at all times hereafter, to live separate and apart from the other, at such place or places as he or she may, from time to time, choose or deem fit. Each party shall be free from interference, authority or contact by the other, as fully as if he or she were single and unmarried, except as may be necessary to carry out the provisions of this Agreement. Neither party shall molest the other or attempt to endeavor to molest the other, nor compel the other to cohabit with the other, or in any way harass or malign the other, or in any way interfere with the peaceful existence, separate and apart, from the other. The parties agree that the following assets shall be conveyed to Wife as part of the equitable distribution of assets, and the following list of assets shalll be the sole and exclusive property of Wife: The real estate located at 2216 Newvillle Road, Carlisle, West Pennsbnro Township, Cumberland County, Pennsylvania. Husband agrees to execute a Deed in conjunction with the transfer of this asset to Wife. The MML account which is in joint names and held by MML Investors Services, Inc. and which had an approximately value as of March 31, 2004 of $548,856.49. Husband will execute all documentation required to transfer said account into Wife's sole name. All personal belongings located in the matritai home at 2216 Newville Road, Carlisle, West Pennsboro Township, Cumberland County, Pennsylvania and all other items of personal property currently in the possession of Wife. The SERS et~rement account in Wife's name which has been represented by F ' Wife to have a value of approximately $60,000.00. The IRA account in Wife's name which has been represented by Wife to have e ' an st:mated value of $225,880.00. The parties agree that the following assets shall be co~veyed to Husband as part of the equitable distribution of assets, and the following list of assets shall be the sole and exclusive property of Husband. do The SERS retirement account in Husband's name alone which had a value pursuant to a September 2, 2003 statement of approximately $670,000.00. The American Fund Account in Husband's name alone which has a value as of March 9, 2004 of approximately $127,000.00. The deferred compensation account in Husband's name alone held through the Commonwealth of Pennsylvania which had a balance in December of 2003 of approximately $143,000.00. The TIAA-CREF Account in Husband's name alone which has a value of approximately $23,490. The equity held by Husband in real estate located at 716 North Reeve Road, Dataw Island, South Carolina. All items of personal property in Husband's possession. 3 Each party hereby represents they have disclosed all of the marital assets to the other party in the negotiations for the consummation of this Agreement. 4 The parties agree to execute the Consent Affidavits in order to finalize the divorce, the Husband agrees to proceed with finalizing the divorce c.~tse. Both parties shah incur their own legal expenses with re.,;pect to this divorce litigation. 6 The parties agree that they will not contact or incur any' debt or liability for which the other party might be responsible and shall indemnify and save the other party harmless from any and all claims or demands made against that party by reason of such debts or obligations incurred by the other party. 7 Should a decree, judgment or order of separation or divorce be obtained by either of the parties in this or any other state, country, or jurisdiction:, each of the parties hereby consents and agrees that this Agreement and all of its covenants shall not be affected in any way by any such separation or divorce; and that nothing in any such decree, judgment, order or further modification and revision thereof shall alter, amend or vary any term of this Agreement, whether or not either or both of the parties shall remarry, it being understood by and between the parties hereto that this Agreement shall survive and shall not be merged into any decree, judgment, or order of divorce or separation. It is specifically agreed, however, that a copy of this Agreement or the substance of the provisions thereof, may be incorporated by reference into any divorce, judgment or its decree. This incorporation, however, shall not be regarded as a merger, it being the specific intent of the parties to permit this Agreement to survive any judgment and to be forever binding and conclusive upon the parties. Husband and Wife do hereby mutually remise, release, quit claim or forever discharge the other and the estate of such other, for all time to come, an,J for all purposes whatsoever, from any and all rights, title and interest, or claims in or against the estate of such other, of whatever nature and wherever situate, which he or she now has or at anytime 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 courtesy of claims in the nature of dower or courtesy, or widow's or widower's rights, family exemption or similar allowance or under the intestate laws; or the right to take a ainst spouse's will; or the right to treat a lifetime conveyance by the other as testamental~g or allthe OF other rights of the surviving spouse to participate in a deceased 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 right which either party may now have or at anytime 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 the 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 provision thereof. It is the intention of Husband and Wife to give to each other by the execution of this 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 thereof. 9 Each of the parties shaH, from time to time, at the request of the other, execute, acknowledge and deliver to the other party any and all further instruments or documents that may be reasonably required to give full force and effect to the pr,ovisions of this Agreement. 10 A modification or waiver of any of the provisions of this: Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon the strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. 11 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. 12 It is specifically understood and agreed by and between the parties thereto that each paragraph hereof shall be deemed to be a separate and independent agreement. 13 If either party breaches any provision of this Agreement, the other party shall have the right, at his or her election, to sue for damages for such breach or seek such other remedies or relief as may be available to him or her and the party breaching this Agreement shall be responsible for payment of legal fees and costs incurred by the othe~r in enforcing the rights under this Agreement, or in seeking such other remedies or relief as ~nay be available to him or her. 14 This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania. 15 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 ali other respects, this Agreement shall be valid and continue in full force, effect and operation. 16 Except as otherwise set forth herein, this Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 17 Husband agrees to hold Wife harmless as to any and alii encumbrances, loans, mortgages, notes, or other obligations related to the financing and ownership of 716 North Reeve Road, Dataw Island, South Carolina property. Additionally, Husband executes expeditiously any and all documents report requested by credit reporting agencie.,~ related to notations on the credit of Kay Dailey (Wife) relating to 716 North Reeve Road, Dataw Island, South Carolina. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and year first above written. WITNESS Kenneth E. Nic~lely ~- - KENNETH E. NICELY, Plaintiff v H. KAY DA1LEY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 03 - 2815 - CIVIL : CIVIL ACTION - LAW AFFIDAVIT OF SERVICE I, Hubert X. Gilroy, being duly sworn according to law do depose and state that a copy of the Complaint and Notice to Plea filed in the above referenced matter was served on Defendant's attorney, Gerald S. Robinson. A copy of the Praecipe entering Gerald S. Robinson's appearance and acceptance of service is attached hereto and marked Exhibit A. 4 North Hanover Street Carlisle, PA 17013 717 - 243-4574 Sworn and subscribed before me this 13& day of /j/j, ..~,~ ,2004 ~-~ta~y.~ubli~ Bridget Ann Corcoran, Notary Puo I My Commission Expires ~une , . , pennsylvenia Association ot Notanos KENNETH E. NICELY, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA H. KAY DAILEY, : Defendant : IN DIVORCE PRAECIPE TO THE PROTHONOTARY: CIVIL ACTION - LAW Please enter the appearance of Gerald S. Robinson of Robinson & Geraldo, P.C. on behalf of Defendant H. Kay Dailey in the above matter. Also, please note that the undersigned has accepted service of the Divorce Complaint filed in this case as of the /~, day of June, 2003. Resp~ !ully sub~nitted, Geral~S. Robinson, Esquire Attorney for Defendant Robinson & Geraldo, P.C. 4407 North Front Street P.O. Box 5320 Harrisburg, PA 17110 KENNETH E. NICELY, Plaintiff H. KAY DAILEY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLA~'D COUNTY, PENNSYLVANIA : : 2003 - 2815 CIVIL TERM .. : : IN DIVORCE AFFIDAVIT OF CONSENT AND WAIVER OF NOTICE OF INTENTION 'ro REQUEST ENTRY OF A DIVORCE DECREE UNDER SECTION 3301(c) OF THE DIVORCE CODE 1. A Complaint in divorce under Section 3301(C) of the Divorce Code was filed on June 16, 2003. 2. Defendant acknowledges receipt and accepts service of the Complaint on or about June 17, 2003. 3. The marriage of the Plaintiff and Defendant is irretrievably broken and ninety days have elapsed from the date of the filing of the Complaint. 4. I consent to the entry of a final decree of divorce without notice. 5. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses ifI do not claim them before a divorce is granted. 6. I understand that I will not be divorced until a Divot:ce 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. 7. I have been advised of the availability of marriage counseling and understand that I may request that the Court require counseling. I do not request that the Court require counseling. 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 unsworn falsification to authorities. Date: ?/7/~ / ~' ~//~"~ KENNETH E. NICELY, Plaintiff V H. KAY DAILEY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 03 - 2815 .- CIVIL _. :CIVIL ACTIG~N - LAW : 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' Section (X)3301(c) ()3301(d)(1) of the Divorce Code. (Check applicable section.) 2. Date and manner of service of the Complaint: 3. (Complete either paragraph (a) or (h). (a) Date of execution of the affidavit of consent required by Section 3301(c) of the Divorce Code: By Plaintiff: June 17, 2004; Defendant: July 7, 2004. (b) (1) Date of execution of the Plaintiff's affidavit required by Section 3301(d) of the Divorce Code: ; (2) Date of service of the Plaintiff's affidavit upon the Defendant: 4. Related claims pending: None. 5. Complete either (a) (b). (a) Date and manner of service of the notice of intention to file praecipe to transmit record, a copy of which is attached: (b) Date Plaintiff's Waiver of Notice in §3301(c) Divorce was filed with the Prothonotary: July 13, 2004 (c) Date Defendant's Waiver of Prothonotary: July 13, 2004 Notice in §3302(c) Divorce was filed with the ~~i Esquire Attorney for Plaiintiff Broujos & Gilroy, PC 4 North Hanover Street Carlisle, PA 17013 717-243-4574 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE Of ~ PENNA. KENNETH E. NICELY 03 - 2815 NO. Plaintiff VERSUS H. KAY DAILEY Defendant AND NOW DECREED THAT AND DECREE IN DIVORCE Kenneth E. Nicely H. Kay Dailey ----~J'~ ~k~ IT IS ORDERED AND , PLAINTIFF, , DEFENDANT, ARE DIVORCED FROM THE BONDS OF MATRIMONY. THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIN~S WHICH HAVE been RAISED OF RECO~ IN THIS ACTION fOR WHICH a final ORDEr has NOT YET beeN ENTERED; Property Settlement Agreement dated June 17, 2004 is incorporated into this order. ATTEST: - ,~.J- .... PROTHONOTAR¥