HomeMy WebLinkAbout99-04561
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
STATE OF PENNA.
PATRICIA S. SMITH,
._. Plaintiff N t). 99„-4561 Civil 19
Versus
WILLIAM M. SMITH, JR.,
Defendant
DECREE IN
DI VORCE
AND NOW ............. ????, • 3i•" , }q zeoi it is ordered and
decreed that .................... PATRICIA s, shuTH...... .. • ... plaintiff,
and .............................. VIU NM
TAM..., S. ?M.?j?-...... , 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;
The Marriage and Property. Settlement, Agreement•dated May 17, 20o 1 is,
......
into rated reference, ;
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All
By T e CoUy,t 1
At st: J.
.Prot onolary
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MARRIAGE AND PROPER,TV SETTLEMENT AGREEMENT
THIS AGREEMENT, made thist7W day of May, 2001, by and between WILLIAM N.
SMITH, JR., of Cumberland County, Pennsylvania, party of the first part, hereinafter referred to as
"Husband" and PATRICIA S. SMITH of Cumberland County, Pennsylvania, party of the second
part, hereafter referred to as "Wife."
WITNESSETH:
WHEREAS, Husband and Wife were married on March 15, 1984, in Mt. Holly Springs,
Cumberland County, Pennsylvania; and
WHEREAS, Husband and Wife have been living separate and apart from each other since
June 6, 1999; and
WHEREAS, Husband and Wife are residents of the Commonwealth of Pennsylvania and
have been so for at least the past six (6) months; and
WHEREAS, certain diverse, unhappy differences have arisen between the parties hereto
which have made them desirous of living separate and apart from one another; and
WHEREAS, Husband and Wife desire to settle and determine certain of their marital rights
and obligations, and make an equitable distribution of their marital property; and
WHEREAS, it is the intention and purposeof this Agreement to set forth the respective rights
and duties of the parties while they continue to live apart from each other and to settle all financial
and property rights between them; and
WHEREAS, the parties hereto have mutually entered into agreement for the division oftheir
jointly owned assets, the provisions for the liabilities they owe, and provisions for the resolution of
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their mutual differences, after both have had full and amble opportunity to consult with their
respective attorneys, and the parties now wish to have that agreement reduced to writing.
NOW, THEREFORE, the parties hereto inconsideration of tile mutually made and to be kept
promises set forth herein and for other good and valuable consideration, intending to be legally
bound and to legally bind Heirs, successors, assigns, and personal representatives, do hereby
covenant, promise and agree as follows:
ARTICLE I
SEPARATION
It shall be lawful for Husband and Wife at all times hereafter to live separate and apart from
each other and to reside from time to time at such place or places as they shall deem fit free from any
control, restrain, or interference, direct or indirect, by each other. Neitherpartyshall molest the other
or compel or endeavor to compel the other to cohabit or dwell with him or her by any legal or other
proceedings. The foregoing provision shall not be taken to be an admission on the part of either
Husband or Wife of the lawfulness of the causes leading to them living separate and apart.
ARTICLE If
DIVORCE
2.1
This Agreement is not predicated on divorce. 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
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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
precludeeithcrofthcpartieshereto from commencing, instituting or prosecuting any action or action
for divorce, either absolute or otherwise, uponjus(, legal and proper grounds; nor to prevent either
party from defending any such action which has been, may, or shall be instituted by the other party,
or for making anyjust or proper defense thereto. 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 Husband and
Wife to execute this Agreement. Husband and Wife each knowingly and understandingly hereby
waive any and all possible claims if this Agreement is, for any reason, illegal, or for any reason
whatsoever of public policy, unenforceable in whole or in part. Husband and Wife do each hereby
warrant, covenant and agree that, in any possible event he and she are and ever shall be estopped
from asserting any illegality or unenforceability as to all or any part of this Agreement.
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It is further specifically understood and agreed that the provision of this Agreement relating
to the equitable distribution ofpropertyofthe parties are accepted by each party as a final settlement
for all purposes whatsoever. Should either of the parties obtain a decree, judgment or order of
separation or divorce in any other state, county, orjurisdiction, each of the parties to this Agreement
hereby consents and agrees that this Agreement and all its covenants shall not be effected in any way
by any such separation or divorce; and that nothing in any such decree, judgment, order or further
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modification or revision thereof shall alter, amend or vary any terns of this Agreement, whether or
not either or both of the parties should remarry, it being understood by and between the parties that
this Agreement shall survive and shall not be merged into any decree, judgment or order of divorce
or separation.
2.3
It is specifically agreed that a copy of this Agreement maybe incorporated by reference into
any divorce judgment or decree if or whenever sought by any of the parties hereto. It is understood
by the parties that a Divorce Complaint has been filed in the Court of Common Pleas of Cumberland
County at Docket Number 99-4561. Such incorporation, however, shall not be regarded a merger,
it being the intent of the parties to permit Agreement to survive any such agreements.
ARTICLE III
EQUITABLE DISTRIBUTION OF MARITAL PROPERTY
3.1
The parties have attempted to divide their marital property in a manner which conforms to
the criteria set forth in Section 3502 of the Pennsylvania Domestic Relations Code, and taking into
account the following considerations: the length of the marriage; the prior marriages of the parties;
the age, health, station, amount and sources of income, vocational skills, employability, estate,
liabilities, and need for each of the parties; the contribution of one party to the education, training
or increased earning power of the other party; the opportunity of each party for future acquisition of
capital assets and income; the sources of income of both parties, including, but not limited to
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medical, retirement, insurance or other benefits; the contribution of dissipation of each party in the
acquisition, preservation, depreciation, or appreciation of marital property, including the contribution
of a party as a homemaker; the value of the property set apart to each party; the standard of living
of the parties established during their marriage.
3.2
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 rights of equitable distribution of the parties.
3.3
The parties shall retain sole and exclusive right, title and possession of all personal property
currently in their possession. Except as provided for herein, Husband shall make no claim
whatsoever for any personal property in Wife's possession. Additionally, except as provided for
herein, Wife shall make no claim whatsoever for any personal property in Husband's possession.
Should it be necessary for either party to execute any documents to convey title to any such personal
property in the other party's possession, they shall do so within thirty (30) days of the execution of
this Agreement or within thirty (30) days of the request from the opposing party.
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3.4
Except as provided herein, Wife waives any right or interest she may have in Husband's
employment benefits, including any pension benefits, retirement plan, stock option purchase plan,
profit sharing plan or related matters. Except as provided herein, Husband waives any right or
interest he may have in Wife's employment benefits, including anypension benefits, retirement plan,
stock option purchase plan, profit sharing plan or related -natters.
a. Husband hereby agrees to the entry of a Qualified Domestic Relations Order, or any
other document requested by Wife, whereby Wife is entitled to one hundred (100%) percent of
Husband's employment benefits, including any retirement plan, stock option purchase plan, profit
sharing plan or related matters, 401(k), or Employee Pension Plan, that Husband may have through
McCoy Brothers, Inc. as of the date of this Agreement.
3.5
Husband and Wife agree to waive and relinquish any and all right that he or she may now
have or hereafter acquire in any real or tangible personal property subsequently acquired by the other
party. Husband and Wife specifically agree to waive and relinquish any right in such property that
may arise as a result of the marriage relationship.
3.6
Contemporaneously with the execution of this Agreement, Wife shall transfer to Husband
any and all of Wife's right, title and interest in and to that parcel of real estate located at 239 Pine
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Grove Road, Gardners, Cumberland County, Pennsylvania, heretofore owned by the parties as
tenants by the entireties. Said transfer is subject to those liens, judgments or mortgages of record as
of the date ofconveyance, all of which shall thereafter become the sole and exclusive obligation of
Husband. Within one hundred eighty (180) days of the date of this Agreement, Husband shall pay
off or refinance any and all Mortgages and Notes on said property to remove Wife's name from said
Mortgage(s) and Note(s). At all times relevant hereto, Husband also agrees to indemnify and hold
Wife harmless from the collection and/or responsibility for payment of or any Mortgages, Notes, or
Loans on said property.
ARTICLE IV
RELEASE OF SUPPORT FOR HUSBAND AND WIFE
4.1
The parties herein acknowledge that by this Agreement they have respectively secured and
maintained a substantial and adequate fund with which to provide themselves sufficient resources
to provide for their comfort, maintenance, and support in the station of life in which they are
accustomed. Husband and Wife do hereby waive, release and give up any rights they may
respectively have against the other for alimony, support, or maintenance.
4.2
Husband and Wife specifically waive, release and give up any rights for alimony that they
may be entitled to pursuant to Chapter 37 of the Pennsylvania Domestic Relations Code.
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ARTICLE V
DEBTS OF THE PARTIES
5.1
Each party represents to the other that except as otherwise specifically set forth herein, there
are no major outstanding obligations of the parties, that since the separation neither party has
contracted for anydebts for which the other will be responsible and each party indemnifies and holds
harmless the other for all obligations separately incurred or assumed under this Agreement.
In the event either party contracted for or incurred any debts since the date of separation, the
party who incurred said debt shall be responsible for the payment thereof regardless of the name in
which the account mayhave been charged. Husband and Wife acknowledge and agree that they have
no outstanding debts or obligations of the Husband and Wife incurred prior to the signing of this
Agreement.
5.2
Each party relinquishes any right, title and interest he or she may have to any and all motor
vehicles currently in the possession of the other party. Within thirty (30) days of the date of
execution of this document, each party shall execute the necessary documents to have said vehicles
property registered in the other party's name with the Pennsylvania Department of Transportation.
The Parties hereto have co-signed on a car loan from the Bank of Hanover for Josh W. Smith. The
Parties hereto agree that when said loan is paid off, the title to said vehicle shall be solely in Josh W.
Smith's name and not in the name of any of the Parties hereto.
ARTICLE Vl
MISCELLANEOUS PROVISIONS
6.1
The provisions of this Agreement and their legal effect have been fully explained to the
parties by their respective counsel or the parties have waived their right to have legal advice
regarding the meaning and implication of this Agreement. The parties acknowledge and accept that
this Agreement is, in the circumstances, fair and equitable, that it is being entered into freely and
voluntarily, after having received such advice and with such knowledge that execution of this
Agreement is not the result of any duress or undue influence and that it is not the result of any
collusion or improper or illegal agreement or agreements.
6.2
Husband and Wife do hereby mutually remise, release, quitclaim, and forever discharge the
other and the estate of the other, for all times to come and for all purposes whatsoever, of and from
any and all legal right, title and interest, or claims in or against the property of the other or against
the estate of the 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 acts, contracts, engagements, or liabilities of such other as by way of dower
or curtesy, or claims in the nature of dower or curtesy or 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 a deceased spouse's estate, whether arising under the laws of (a)
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Pennsylvania, (b) any state, commonwealth, or territory ofthe United States, or (c) any other country,
or any rights which either party may have or at any time hereafter have for past, present, or future
support or maintenance, alimony, alimony pendente lite, source 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 thereof. It is the intention of Husband and Wife to give to each other by
execution of this Agreement a full, complete, and general release with respect to any and all property
of any kind or nature, real or personal, not 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 thereof.
6.3
Each party represents that they have not heretofore incurred or contracted for any debt or
liability or obligation for which the estate of the other party may be responsible or liable, except as
may be provided for in this Agreement. Each party agrees to indemnify and hold the other party
harmless from and against any and all such debts, liabilities orobligations of each of them, including
those for necessities, except for the obligations arising out of this Agreement. Husband and Wife
each warrant, covenant, represent and agree that each will, now and at all times hereafter, save
harmless and keep the other indemnified from all debts, charges, and liabilities incurred by the other
after the execution date of this Agreement, except as is otherwise specifically provided herein.
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6.4
No waiver or modification of any of the terms of this Agreement shall be valid unless in
writing and signed by both parties and no waiver of any breach hereofor default hereunder shall be
deemed a waiver of any subsequent default of the same or similar nature.
6.5
This 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.
6.6
This Agreement shall be binding and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and assigns.
6.7
This Agreement constitutes the entire understanding of the parties and supersedes any and
all prior agreements and negotiations between them. There are no representations or warranties other
than those expressly set forth herein.
6.8
If any term, condition, clause, section, 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
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valid and continue in full force, effect, and operation. Likewise, the failure of any party to meet his
or her obligation under any one or more of the articles and sections herein shall in no way void or
alter the remaining obligations of the parties.
6.9
It is specifically understood and agreed that this Agreement constitutes an equitable
distribution of property, both real and personal, which was legally and beneficially acquired by
Husband and Wife, or either of them, during the marriage as contemplated by the Domestic
Relations Code of the Commonwealth of Pennsylvania.
6.10
The parties warrant and represent that they leave made full disclosure of all assets prior to the
execution of this Agreement. Each party represents and warrants that he or she has made a full and
fair disclosure to the other of all of his or her personal property interests ofany nature, including any
mortgage, pledge, lien, charge, security interest, encumbrance, or restriction to which any property
is subject. Each party further represents that he or she has made a full and fair disclosure of all debts
and obligations of any nature for which lie or she is currently liable or may become liable. Each
further represents and warrants that lie or she has not made any gifts or transfers for inadequate
consideration of Marital Property without the prior consent of the other.
Each party acknowledges that, to the extent desired, lie or she has had access to all joint and
separate State and Federal Tax Returns filed by or on behalf of either or both Parties during
marriage.
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6.11
In the event either party to this Agreement shall breach any tern, covenant or other obligation
herein, the non-breaching party shall be entitled, in addition to all other remedies available at law
or in equity, to recover from the breaching party all costs which the non-breaching party may incur,
including but not limited to filing fees and attorney's fees, in ant action or proceeding to enforce the
terms of this Agreement.
6.12
This Agreement shall survive any action for divorce and decree of divorce and shall forever
be binding and conclusive on the parties; and any independent action may be brought, either at law
or in equity, to enforce the terms of this Agreement by either Husband or Wife until it shall have
been fully satisfied and performed. The consideration for this Agreement is the mutual benefits to
be obtained by both of the parties hereto and the covenants and agreements of each of the parties to
the other. The adequacy of the consideration for all agreements herein contained is stipulated,
confessed, and admitted by the parties, and the parties intend to be legally bound hereby.
IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first
above written.
WITNESSED BY:
Wal-V, ??J
WILLIAM N' SMITH, JR.
PATRICIA S. SMITH
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PATRICIA S. SMITH,
Plaintiff
CIVIL ACTION - LAW
V. IN DIVORCE
WILLIAM N. SMITH, JR., NO. 99-4561 Civil Tema
Defendant
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 3301(c) of the Divorce
Code.
2. Date and mannerofservice of the complaint: Via State Constable, hand delivered on
October 5, 1999.
3. Date of execution of the Plaintiffs affidavit of consent required by Section 3301 (c)
of the Divorce Code; May 17, 2001; by the Defendant; May 17, 2001.
4. Related claims pending: None.
5. Date Plaintiffs Waiver of Notice in §3301(c) Divorce was filed with the
Prothonotary: May 23, 2001.
Date Defendant's Waiver of Notice in §3301(c) Divorce was filed with the
Prothonotary: May 23, 2001.
/ LAW OFFICE OF MICHAEL J. HANFT
Date: 6 /?Z`°t By AA?? Michael J. Hanf1, 5 15squire
Attorney I.D. No. 57976
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
Attorneys for Plaintiff
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PATRICIA S. SMITH,
Plaintiff
CIVIL ACTION -LAW
V. IN DIVORCE
WILLIAM N. SMITH, JR., : NO. 99_
Defendant
NOTICE TO DEFEND AND CLAIM RIGHTS
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take prompt action. You are warned that if you fail to do
so, the case may proceed without you and a decree of divorce or annulment may be entered
against you by the Court. A judgment may also be entered against you for any other claim or
relief requested in these papers by the Plaintiff. You may lose money or property or other rights
important to you, including custody or visitation of your children.
When the ground for the divorce is indignities or irretrievable breakdown of the marriage,
you may request marriage counseling. A list of marriage counselors is available in the Office of
the Prothonotary, Cumberland County Courthouse, Carlisle, 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
Lawyer Referral Service
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
M THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PATRICIA S. SMITH,
Plaintiff
CIVIL ACTION -LAW
V. IN DIVORCE
WILLIAM N. SMITH, JR., : NO. 99-
Defendant
COMPLAINT IN DIVORCE
AND NOW, this Q day of July, 1999 comes Plaintiff, Patricia S. Smith, by and
through her attorney, Michael J. Hanft, Esquire, and files the following Complaint in Divorce,
and in support thereof avers as follows:
1. The Plaintiff is Patricia S. Smith, a resident of Cumberland County, Pennsylvania.
2. The Defendant is William N. Smith, Jr., who resides at 239 Pine Grove Road,
Gardners, Cumberland County, Pennsylvania.
3. The Plaintiff and Defendant are sui juris, and both have been bona fide residents of the
Commonwealth of Pennsylvania for a period of more than six (6) months immediately preceding
the filing of this Complaint in Divorce.
4. The parties were married on March 15, 1984 in Mt. Holly Springs, Cumberland
County, Pennsylvania.
5. The marriage is irretrievably broken. The foregoing facts are averred and brought
under Sections 3301(c) of the Divorce Code of 1980, as amended.
6. Alternatively, Plaintiff avers that the Defendant has offered such indignities to her, the
injured and innocent spouse, as to render her condition intolerable and her life burdensome. The
foregoing facts are averred and brought under Section 3301(a)(6) of the Divorce Code of 1980,
as amended.
7. The Plaintiff has been advised of the availability of counseling, and that the Plaintiff
may have the right to request that the Court require the Parties to participate in counseling.
WHEREFORE, Plaintiff requests Your Honorable Court to enter a Decree in Divorce,
divorcing the Plaintiff from the Defendant.
Respectfully submitted,
Michael J. Hanft, EsgVlire
Attorney ID No. 57976
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
Attorney for Plaintiff
Verification
1 verify that the statements made in the foregoing document are true and correct to the best
of my knowledge, information and belief. 'this Verification is made only as to the factual averments
contained herein, and not to legal conclusions and averments authored by counsel in his capacity as
attorney for the party or parties hereto. I understand that false statements herein are made subject
to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities.
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PATRICIA S. SMITH, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. :NO. 99-4561 CIVIL TERM
WILLIAM N. SMITH, JR., : CIVIL ACTION-LAW
Defendant : IN DIVORCE
AFFIDAVIT OF SERVICE
I, Roger C. Spitz being duly sworn according
to law, that I am over 18 years of age and not a party to the above-captioned action,
served and made known to William N. Smith Jr., on the 5th day of October, 1999 at
10:30 a.m. at 239 Pinegrove Road, Gardners, PA, 17324, a Divorce Complaint issued
in the above entitled case in the manner described below:
[X] Personally delivered them into the hands of the person to be served
[ ] Adult family member with whom that person resides. Relationship is
[ ] Agent or person in charge of person's office or usual place of business
[ ] Other.
Description of Recipient
Sex: Male Skin Color: Caucasian
Facial Hair: Mustache Height (approx.): 610"
Hair Color: Blonde
Weight ((aap,pro?x."):'195 lbs.
Roger C. SM
Pennsylvania State Constable
Cumberland County
ID# B001517
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PATRICIA S. SMITH,
Plaintiff'
V.
CIVIL ACTION - LAW
IN DIVORCE
WILLIAM N. SMITH, JR..
Defendant
NO. 99-4561 Civil Term
AFFIDAVIT OF CONSENT
COMMONWEALTH OF PENNSYLVANIA )
: SS.
COUNTY OF CUMBERLAND 1
1. A Complaint in divorce under Section 3301(c) of the Divorce Code was filed on July
28, 1999.
2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety days have
elapsed from the date of tiling and service of the Complaint.
3. 1 consent to the entry of a final decree ot'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 understand that false
statements herein are made subject to the penalties of 18 Pa. C. S., Section 4904 relating to unsworn
falsification to authorities.
Date: ? I
Sworn to and subscribed before me this
17 day of A4.a 2001
Notary Public
Patricia S. Smith, Plaintiff
Notarial Seal
Denise L. Mddleton.Twp, CumernanCli County
My Commission Expires Feb. 25, 2005
Member. Pennsyhrenla Association Of Notaries
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PATRICIA S. SMITH.
Plaintiff
CIVIL ACTION - LAW
V. IN DIVORCE
WILLIAM N. SMITH, JR., NO. 99-4561 Civil Term
Defendant
WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY
OF A DIVORCE DECREE UNDER 43301(C) OF THE DIVORCE CODE
1. I consent to the entry of a final decree of divorce without notice.
2. 1 understand that 1 may lose rights concerning alimony, division of property,
lawyer's fees or expenses il' 1 do not claim them before a divorce is granted.
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 tiled with the
Prothonotary.
I verity that the statements made in this Affidavit are true and correct. 1 understand that
false statements herein arc made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn
falsification to authorities.
Date: PiCL ? n) 'Lodl TC 1C Ci ?) .
Q Patricia S. Smith, Plaintiff
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
PATRICIA S. SMITH,
Plaintiff
V.
CIVIL ACTION - LAW
IN DIVORCE
WILLIAM N. SMITH. JR..
Defendant
NO. 99-4561 Civil Tenn
AFFIDAVIT OF CONSENT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
SS.
I . A Complaint in divorce under Section 3301(c) ofthe Divorce Code was tiled on July
28, 1999.
2. The marriage ol'Plaintiff and Defendant is irretrievably broken and ninety days have
elapsed from the date of filing and service of the Complaint.
3. I consent to the entry of a final decree of divorce after service of notice of intention
to request entry of the decree.
I verify that the statements made in this affidavit arc true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa. C. S., Section 4904 relating to unsworn
falsification to authorities.
Date: S /T a/ a, VJ0 it, ?w
William N. Smitli, Jr., Defendant
Sworn to and subs ribed before me this
1"7447 day of if" .2001.
otarial Seal
Nye, Notary Public
n Expires Feb, 26, 2005
6M0mbi6rPennisy1,ana Twp., Cumberland County
Notary Public Association of Notaries
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PATRICIA S. SMITH,
Plaintiff
CIVIL ACTION - LAW
V. IN DIVORCE
WILLIAM N. SMITH. JR., NO. 99-4561 Civil Tenn
Defendant
WAIVF,R OF NOTICE OF INTENTION TO REQUEST ENTRY
OF A DIVORCE DECREE UNDER 43301fC1 OF THE DIVORCE CODE
I . I consent to the entry of a final decree of divorce without notice.
2. 1 understand that I may lose rights concerning alimony, division of property,
lawyer's fees or expenses if 1 do not claim them before a divorce is granted.
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 tiled 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 unsworn
falsification to authorities.
Date:
William N. mith, Jr., Defendant
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PATRICIA S. SMITH,
Plaintiff
CIVIL ACTION -LAW
V. IN DIVORCE
WILLIAM N. SMITH, JR., NO. 99-4561 Civil Term
Defendant
STIPULATION FOR THE ENTRY OF
QUALIFIED DOMESTIC RELATIONS ORDER
AND NOW, this 11th day of December, 2001, upon consideration of the Marriage and
Property Settlement Agreement dated May 17, 2001 (hereinafter "Agreement'), by and between
Defendant, William N. Smith, Jr., and Plaintiff, Patricia S. Smith, which Agreement was
incorporated by reference into the Decree in Divorce of May 31, 2001, the following Order is
entered:
1. Defendant, William N. Smith, Jr., bom January 21, 1961, Social Security Number
178-52-8369, (hereinafter "Participant'), is a participant in the McCoy Brothers, Inc. Employee
Stock Ownership Plan 002 (hereinafter "Plan").
2. The current address of Participant, William N. Smith, Jr., is 239 Pine Grove Road,
Gardners, Cumberland County, Pennsylvania 17324.
3. Plaintiff, Patricia S. Smith, born September 16, 1963, Social Security Number
183-62-6613, (hereinafter "Alternate Payee"), is the former spouse of the Participant and had
raised claims for, inter alia, equitable distribution of marital property pursuant to the
Pennsylvania Divorce Code, 23 Pa C.S. Section 3101, et seq. A Decree in Divorce was issued on
May 31, 2001 by the Honorable Kevin A. Hess, which Decree incorporated by reference the
Marriage and Property Settlement Agreement dated May 17, 2001.
4. The current mailing address of Alternate Payee is 24 Lurgan Avenue,
Shippensburg, Franklin County, Pennsylvania 17257.
5. The Parties agree that Alternate Payee was married to Participant from March 15,
1984 through May 31, 2001, during which period of time Participant was employed by McCoy
Brothers, Inc.
6. The plan to which this Order applies is the McCoy Brothers, Inc. Employee
Stock Ownership Plan No. 002 (hereinafter "Plan").
Participant's account in the Plan is marital property subject to distribution by this
Court.
8. The Parties agree that Alternate Payee shall receive from Participant's account in
the Plan, a payout, pursuant to the ternis of the Plan, of Participant's interest in the Plan as of
September 30, 2001, the date agreed to in the December 11, 2001 Amendment to the Marriage
and Property Settlement Agreement. This payout shall fully satisfy the Alternate Payee's
equitable distribution claim against the Plan.
9. The distribution to Alternate Payee from the Plan shall be made as soon as
administratively practicable following the Plan's determination that this Order is a Qualified
Domestic Relations Order.
10. Participant's death shall have no effect on payment of Alternate Payee's benefit
under the Plan. The Alternate Payee is at all times to be deemed the surviving spouse for
purposes of the Pre-retirement Survivor Annuity until this Order effectively assigns the funds to
Alternate Payee as identified in Paragraph 8, above.
11. In the event the Alternate Payee dies before the Alternate Payee's benefit is paid,
the benefit shall be paid in accordance with applicable Plan provisions regarding payments to
beneficiaries, including payments when no beneficiary is designated. The Alternate Payee shall
be entitled to name a beneficiary (or beneficiaries) to receive the unpaid balance of the benefits.
The death of Alternate Payee before the Plan determines that this Order is a Qualified Domestic
Relations Order shall not affect the right of Alternate Payee's beneficiary to benefits from the
Plan.
12. The Parties shall promptly notify the Plan's Administrator of any change in their
addresses from those set forth in this Order.
13. Participant and Alternate Payee shall each be responsible for his or her own
federal, state, and local income and other taxes attributable to any and all payments from the Plan
which are received by Participant and Alternate Payee, respectively. The Plan shall provide to
Participant and Alternate Payee in accordance with its customary procedures, such information as
is normally provided to participants in the Plan with respect to the taxability of distributions from
the Plan.
14. Nothing contained in this Order shall be construed to require any Plan or Plan's
Administrator:
a) to provide to the Alternate Payee any type of form of benefit or any option not
otherwise available to the Participant under the Plan, or
b) to pay any benefits to the Alternate Payee which are required to be paid to
another alternate payee under another order determined by the Plan's
Administrator to be a Qualified Domestic Relations Order before this Order is
determined by the Plan's Administrator to be a Qualified Domestic Relations
Order.
15. It is the intent of the Parties and the Court that the provisions of this Order operate
as an effective assignment of the Participant's interest in the Plan under both federal and sate
laws, for all purposes, and constitute a valid Qualified Domestic Relations Order in compliance
with Section 414(p) of the Internal Revenue Code of 1986 and Section 206(d)(3) of the
Employee Retirement Income Security Act of 1974 ("ERISA"), as amended by the Retirement
Equity Act of 1984.
16. The Parties intend and agree that the terms of this Stipulation shall be approved,
adopted and entered as an Order of Court pursuant to Paragraph 3.4(a) of the Agreement.
17. The Court of Common Pleas of Cumberland County, Pennsylvania, shall retain
jurisdiction to amend this Order, but only for the purpose of establishing it or maintaining it as a
Qualified Domestic Relations Order; provided, however, that no such amendment shall require
the Plan to provide any form of benefit or any option not otherwise provided by the Plan, and
further provided that no such amendment or right of the Court to so amend will invalidate this
Order.
18. A certified copy of this Order shall be served upon the Plan's Administrator. Said
Order shall take effect immediately upon approval of the Order by the Plan's Administrator and
shall remain in effect until further Order of Court.
BY THE COURT:
Dated: DG4sw44. Lj. 7-601
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?f Ad-
"vin A. Hess, J.
CONSENTED TO:
William N. mith, Jar., Participant
C? Ou.tLo
12-31-01 ?'?'?S
Patricia S. Smith, Alternate Payee
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CONTINUING JURISDICTION OF THE COURT
The Court retains jurisdiction over the Domestic Relations Order to amcnd, as necessary,
to establish or maintain its qualification as a Qualified Domestic Relations Order under ERISA.
So ORDERED by this Court, this 2A' day of December, 200).
BY THE COURT:
PARTICIPANT - APPEARING PRO SE
William N.,Smith, Jr.
ALTERNATE PAYEE
4?Patricia S. Smith
tri.
vin A. Hess, J.
ATTORNEY FOR ALTERNATE PAYEE
Michael J. Hanft, Esq re
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PATRICIA S. SMITH,
Plaintiff
CIVIL ACTION - LAW
V. IN DIVORCE
WILLIAM N. SMITH, JR., NO. 99-4561 Civil Term
Defendant
AMENDMENT TO MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT
THIS AMENDMENT, made this I 1 th day of December, 2001, by and between
WILLIAM N. SMITH, JR., of Cumberland County, Pennsylvania, party of the first part,
hereinafter referred to as "Husband" and PATRICIA S. SMITH of Cumberland County,
Pennsylvania, party of the second part, hereinafter referred to as "Wife."
WITNESSETH:
WHEREAS, on May 17, 2001, Husband and Wife entered into Marriage and Property
Settlement Agreement, and
WHEREAS, Husband and Wife desire that all other terms and conditions of the
Agreement remain in full force and effect, with the exception of a change to be made to
Paragraph 3.4(a) pursuant to this Amendment, and
WHEREAS, Husband and Wife desire to delete Paragraph 3.4(a) of the Marriage and
Property Settlement Agreement and replace it with the following:
a. Husband hereby agrees to the entry of a Qualified Domestic Relations Order, or
any other document requested by Wife, whereby Wife is entitled to One Hundred (100%) Percent
of Husband's employment benefits, including any retirement plan, stock option purchase plan,
profit sharing plan or related matters, 401(k), or Employee Pension Plan, that Husband may have
through McCoy Brothers, Inc., as of September 30, 2001.
NOW, THEREFORE, the parties hereto in consideration of the mutually made and to be
kept promises set forth herein and for other good and valuable consideration, intending to be
legally bound and to legally bind heirs, successors, assigns, and personal representatives, do
hereby covenant, promise and agree to terms and conditions of the Amendment made herein.
IN WITNESS WHEREOF, the parties set their hands and seals the day and year first
above written.
n WILL-IAMB. SMITH, JR' -
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PATRICIA S. SMITH
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