HomeMy WebLinkAbout03-3979IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
CATHERINE J. BABNER, :
PLAINTIFF, :
V. :
DAVID L. BABNER, :
DEFENDANT, :
Civil Action---Divorce
DocketNo. ~3 '~ 3~'?? ~'ta~"'/"C~tO~
NOTICE TO DEFEND AND CLAIM OF 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 fights important to you, including custody or visitation of your children.
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, Pennsylvania 17101
(717) 249-3166
IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
CATHERINE J. BABNER, :
PLAINTIFF, :
:
V. :
DAVID L. BABNER, :
DEFENDANT, :
Civil Action---Divorce
Docket No.
AVISO PARA DEFENDER Y RECLAMAR DERECHOS
USTED HA SIDO DEMANDADO EN LA CORTE. Si desea defanderse de las quejas
expucstas en las paginas siguientes, debe tomare accion con prontitud. Se le avisa que si
no sc dcfiende, el caso puede proceder sin usted y decreto de divorcio o anulaminento
puede scr emitido en su contra pot la Corte. Una decision puede tambien ser emitida en
su contra pot cualqnier otra queja o compensation reclamados por el demandante. Usted
puede perdcr dinero, o propiedades u otros derechos importantes para usted.
Cuando la base para el divorcio es indignidades o rompimiento irreparable del
matrimonio, usted puedc solicitar consejo matrimonial. Una lista de consejeros
matrimoniales esta disponible en la officina del Prothonotary, an la Cumberland County
Bar Association, 2 Liberty Avenue, Carlisle, Pennsylvania 17101.
SI USTED NO RECLAMA PENSION ALIMENTICIA. PROPIEDAD MARITAL.
HONORARIOS DEABOGADO U OTROS GASTOS ANTES DE QUE EL
DECRETO FINAL DE DIVORCIO O ANULIAMIENTO SEA EMITIDO. USTED
PUEDE PERDER EL DERECHO A RECLAMAR CUALQUIERA DE
ELLOS.USTED DEBELLEVAR ESTE PAPELA UN ABOGADO DE
INMEDIATO SI NO TIENEPUEDEPAGAR UN ABOGADO. VAYA O LLAME A
LOFFICINAINDICADA ABA JO PARA AVERIGUAR DONDE PUEDE
OBTENER ASIS TENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
Carlisle, Pennsylvania 17101
(717) 249-3166
AVAILABILITY OF COUNSELING
THE DIVORCE CODE OF PENNSYLVANIA REQUIRES THAT YOU BE
NOTIFIED OF THE AVAILABILITY OF COUNSELING WHERE A DIVORCE
IS SOUGHT UNDER ANY OF THE FOLLOWING GROUNDS:
23 Pa.C.S. & 3301(a)(6) .......Indignities
23 Pa.C.S. & 3301(c) ..........Irretrievable Breakdown; Mutual Consent
23 Pa.C.S. & 3301(d) ..........Irretrievable Breakdown; Two year separation where the
court determines that there is a reasonable prospect of
reconciliation.
A list of marriage counselors is available in the Office of the Prothonotary
Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Pennsylvania
17013.
GREGORY S. HAZI,ETT, ESQUIRE
ATTORNEY & COUNSELOR AT LAW
S. Ha~zlett, Esquirev
Attorney for Plaintiff
20 South Market Street
Mechanicsburg, Pennsylvania 17055
(717) 790-5500
IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
CATHERINE J. BABNER, :
PLAINTIFF, :
V. :
DAVID L. BABNER, :
DEFENDANT, :
Civil Action---Divorce
Docket No. t~ - .~9~n~
COMPLAINT UNDER SECTION
3301(C} OR 3301(D} OF THE DIVORCE CODE PARTIES
1. Plaintiff is Catherine J. Babner, an adult individual, sui juris an who currently resides
at 159 North Locust Point Road, Mechanicsburg, in the County of Cumberland,
Commonwealth of Pennsylvania.
2. Defendant, is David L. Babner, an adult individual, sui juris, who currently resides at
159 North Locust Point Road., Mechanicsburg, County of Cumberland, Commonwealth
of Pennsylvania.
JURISDICTION & VENUE
3. Plaintiff has been a resident of the Commonwealth of Pennsylvania for a period of
more than 6 months.
The parties were married on the 9th day of November, of 1991, in the County of
Cumberland, Commonwealth of Pennsylvania.
5. Neither the Plaintiff nor the Defendant is in the military or naval service of the United
States or its allies within the provisions of the Soldiers' and Sailors' Civil Relief Act of
the Congress of 1940 and its amendments.
6. There have been no prior actions for divome instituted by the plaintiff or defendant in
this Commonwealth.
COUNT I
GROUNDS FOR DIVORCE
REQUEST FOR A NO-FAULT DIVORCE UNDER SECTION 3301 (d) OF THE
DIVORCE CODE.
7. For the purposes of section 3301 (d) of the Divorce Code, the parties have been living
separate since August of 2002.
8, The marriage is irretrievably broken.
9. :Plaintiff has been advised that counseling is available and that the plaintiff may have
the right to request that the court require the parties to participate in counseling.
WHERFORE, plaintiff requests that the Honorable Court grant a decree of divorce
pursuant to, and in conformity with 3301 (d) of the Divorce Code.
11. The parties do have two (2) biological children bom within the marriage and two (2)
adopted children.
12. The parties have not heretofore entered into any written agreement as to support,
Alimony, or property division.
COUNT I
GROUNDS FOR DIVORCE
REQUEST FOR A NO-FAULT DIVORCE UNDER SECTION 3301 (C) OF THE
DIVORCE CODE.
13. The prior paragraphs are incorporated herein by reference.
WHEREFORE, provided the parties file affidavits consenting to a divorce after
ninety (90) days have elapsed from the date of the filing and service of this Complaint,
plaintiff respectfully requests the Court to enter a decree of divorce pursuant to section
3301 (c) of the Divorce Code.
GREGORY S. HAZI.E~[~F, ESQUIRE
ATTORNEY & COUNSELOR AT LAW
go~ S. H~le~, Esqmre ~
A~o~ey for Plaintiff
20 South Market Street
Mechanicsburg, Pennsylvania 17055
(717) 790-5500
VERIFICATION
I verify that upon personal knowledge or information and belief that the statements
made in this Complaint are tree 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.
Catherine J. Babner, Plaintiff
Date:
SEPARATION AND PROPERTY SETTLEMENT AGREEMENT OF
CATHERINE J. BABNER AND DAVID L. BABNER
THIS AGREEMENT, made this ]b '~/~ day of~003, by and
between Catherine J. Babner, hereinafter referred to as" Wife, and David L. Babner
hereinafter referred to as" Husband".
WITNESSETH:
WHEREAS, Husband and Wife were lawfully married on
Commonwealth of Pennsylvania County of Cumberland.
9~ day November, 1991 in
WltEREAS, certain differences have arisen between the parties as a result of which they have
separated and, and are desirous, therefore, of entering into an agreement which will provide for support,
distribute their marital property, and will provide for their mutual responsibilities and rights growing out
of the marriage relationship; and
WltEREAS, the parties hereto, after being properly advised, have come to the following
agreement.
NOW, THEREFORE, in consideration of the above recitals and the following covenants and
promises mutually made and mutually to be kept, the parties heretofore, intending to be legally bound and
to legally bind their heirs successors and assigns thereby, covenant, promise and agree as follows:
1. SEPARATION:
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.
2. INTERFERENCE:
Each party shall be free from interference, authority and contact by the other as fully as if he or she
was single and unmarried, except as may be necessary to carry out the provisions of this Agreement.
Neither party shall molest the other nor attempt to endeavor to molest the other, nor compel the other to
cohabit with the other, nor in any way harass or malign the other, nor in any way interfere with the
peaceful existence, separate and apart from the other in all respects as if he or she were single and
unmarried
3. WIFE'S DEBTS:
Wife represents and warrants to Husband that since their separation on or about July 26~ 2003, she
has not, and in the future she will not, contract or incur any debt or liability for which Husband or his
estate might be responsible and shall indemnify and save Husband harmless from any and all claims and
demands made against him by reasons of debts or obligations incurred by her subsequent to the entry of
the divorce decree.
4. HUSBAND'S DEBTS:
Husband represents and warrants to Wife that since their separation on or about July 26m, 2003, he
has not, and in the future he will not, contract or incur any debt or liability for which Wife or her estate
might be responsible and shall indemnify and save Wife harmless from any and all claims and demands
made against her by reasons of debts or obligations incurred by him.
(A) OUTSTANDING MARITAL DEBTS:
It is represented as between the parties that there are currently joint marital debts incurred during
the marriage and consisting of a home mortgage and financing on a marital home and a vehicle loan.
5. LEGAL REPRESENTATION
It is hereby acknowledged and understood as between the parties to this agreement that Wife is
represented by Gregory S. Hazlett, Esquire. Husband has been advised and encouraged to retain counsel
of his choosing to represent his legal interests. Each party has been fully advised of their respective legal
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rights and responsibilities and have accordingly reached this agreement voluntarily and knowingly.
6. MUTUAL RELEASE:
Subject to the provisions of this Agreement, each party waives his or her right to any and all legal or
equitable claims not otherwise provided for or allowed within this agreement, inasmuch as the parties hereto
agree that this Agreement provides for an equitable distribution of their marital property in accordance with
the Divorce Code of 1980, as amended. 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 causes 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 cause or causes of action for divorce and except in any or all causes of
action for breach of any provisions of this Agreement. Each party also waives his or her right to request
marital counseling pursuant to Section 202 of the Divorce Code.
7. EQUITABLE DISTRIBUTION OF MARITAL PROPERTY:
The parties have attempted to distribute their marital property in a manner which conforms to the
criteria set forth in Section 401 of the Pennsylvania Divorce Code, 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 of 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 of the parties established during the marriage; and the economic circumstances 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, funds or other property not constituting marital property. The division of property
under this Agreement shall be in full satisfaction of all marital rights of the parties.
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A. DISTRIBUTION OF PERSONAL PROPERTY
The following parties shall distribute the items of personal property as follows:
1. The household furnishings shall be divided as the parties may agree.
2. All items that are defined as being the children's personal belongings shall remain in the children's
possession.
3. Husband shall keep all hunting equipment, guns, bows and arrows, shells, gun cases, the tools located
in the sheds, rotar tiller, and bicycle and the Christmas club account.
4. Wife shall keep the computer, sewing equipment, and fax machine.
Should it become necessary, the parties each agree to sign, upon request, any titles or documents
necessary to give effect to this paragraph. Husband and Wife shall each be deemed to be in the possession
and control of his or her own individual pension or other employee benefit plans or retirement benefits of
any nature with the exception of Social Security benefits to which either party may have vested or
contingent right or interest at the time of the signing of this Agreement, and neither will make any claim
against the other for any interest is such benefits.
From and after the date of the signing of this Agreement, both parties shall have complete freedom of
disposition as to his/her separate property and any property which they have divided equally pursuant to
this agreement and may mortgage, sell, grant, convey, or otherwise encumber or dispose of such
property, whether real of personal, whether such property was acquired before, during or after the
marriage, and neither Husband nor Wife need join in, consent to, or acknowledge any deed, mortgage, or
other instrument of the other pertaining to such disposition of property.
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8. REAL PROPERTY:
The parties to this agreement have a legal equitable and possessory interest in real property
consisting of a marital home located at 159 North Locust Point Road, Mechanicsburg, PA.
17050. It is hereby agreed as between the parties that the Wife shall have husband's name
removed from the mortgage, relative to the loan owing to the Mortgage Company and
Husband agrees to convey all legal, equitable, and possessory ownership interest to Wife upon
his name being removed from the home, and shall execute any and all documentation to
effectuate this conveyance thereby releasing, and relinquishing any and all right title and
interest that husband may have a claim, to said marital home. Wife agrees to pay any and all
expenses related to her occupation of the home and shall Indemnify and hold harmless,
Husband from her failure to make all necessary mortgage payments as well as any and all
other expenses related to her possession and ownership of the marital home.
9. PAYMENT OF MARITAL DEBTS
Husband shall pay the loan which encumbers the 1978 Ford Dump Track, and the loan encumbering the
John Deere Tractor, and the Kay Jewelers line of credit in full and hold harmless and indemnify Wife in
the event he fails to make timely payments and satisfy these accounts in full.
Wife shall pay the loan encumbering Chevrolet Venture Van, and the personal loan and a Visa Account.
and hold harmless and indemnify Husband in the event he fails to make timely payments and satisfy these
accounts in full.
10. POST-SEPARATION OBLIGATIONS
The parties agree and acknowledge that any and all obligations incurred by either party
subsequent to July 26"~, 2003 the date of separation shall be the sole and separate liability and
responsibility of the party incurring the obligation. Each party agrees that he or she will not attempt to,
and/or incur any liability financial or otherwise, to which the other party may become liable in any
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capacity direct or indirect. To the extent that such party incurs a liability to which the other party may
become liable, the party incurring such obligation shall indemnify and hold harmless the other party from
any and all liability arising from such post-separation and/or future obligations.
11. MOTOR VEHICLES
Wife shall be entided to retain both possession of and legal and equitable ownership of the 2000
Chevrolet Venture Van, and the 1992 Geo PrisMa, and the 1989 Chevrolet Celebrity. Wife shall pay
any and all expenses related to her possession and ownership of this vehicle and shall hold husband
harmless and indemnify husband in the event of non-payment of expenses related to her ownership and
possession of said vehicle. Further, upon Wife refinancing or paying off the financing in full relative to
the 2000 Chevrolet Venture Van, husband shall convey all right title and interest both legal and equitable
to this vehicle to Wife. Husband shall within ten (10) days of the execution of this agreement sign over
tide into Wife's name alone relative to the 1992 Geo Prisim, and 1989 Chevrolet Celebrity.
Husband shall retain possession and legal and equitable ownership of the 1988 Ford Truck, the 1994
Ford Truck, 1978 Ford Dump Truck, and the 2002 John Deere Tractor, and shall pay all expenses
relative to his possession and ownership of this vehicle and shall hold Wife harmless and indemnify Wife
in the event of non-payment of expenses related to his ownership and possession of said vehicle. Wife
shall sign title into Husband's name relative to the 1994 Ford Truck.
Each party shall execute any and all documentation necessary to convey any interest into the receiving
party's name to give effect to the allocation of the aforementioned vehicles.
12. SUPPORT
Each party forever releases, relinquishes, and forfeits any and all claims against the other for Spousal
Support, Alimony Pendente Lite, Alimony, Costs and Expenses and any and all other claims of support of
any kind except as provided hereinafter. Wife agrees to withdraw her claims against husband regarding
the future payments of Spousal Support upon the execution of this document and its receipt by Wife's
attorney which is currently held with Cumberland County Domestic Relations. Wife however shall not
suspend or cancel the spousal support arrearages which are currently owed to her for prior arrearages for
spousal support up to the date of receipt of the executed document by Wife's attorney, which shall be paid
to Wife in full by way of wage attachment of husband's paycheck until the same is paid in full at which
point all support shall cease entirely and permanently.
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(A) CHILD SUPPORT
Husband shall pay child support in the amount of $150.00 dollars per week for the period of 2003 thru to
the end of 2004.
Husband shall pay child support in the amount of $175.00 dollars per week for the periods of 2005 to the
end of 2006.
Husband shall pay child support in the amount of $200.00 dollars per week for the periods of 2007 to the
end of 2008.
Husband shall pay child support in the amount of $225.00 dollars per week for the periods of 2009 to the
end of 2010.
Husband shall pay child support in the amount of $125.00 dollars per week for the periods of 2011 until
Sarah graduates from high school in 2012.
(B) MEDICAL INSURANCE FOR CHIII,I~REN
Father shall provide full medical health insurance coverage for the children until they graduate from high
school, reach the age of eighteen (18), obtain a Bachelor's degree whichever of these conditions is the last
to occur.
Mother shall be responsible for all co-pays related to the medical treatment rendered to the children.
Any extend stay hospital bills shall be paid by each party at the rate of fifty (50%) percent.
Prescriptions for the children in excess of $50.00 per month shall be paid by each party at a fifty (50%)
percent.
13. CHILD CUSTODY
Mother shall have Primary Physical Custody of the children.
The parties shall have Shared Legal Custody of the children.
The father shall have Partial Physical Custody of the children.
Father shall have periods of custody with the children as the parties may agree contingent on him
providing 72 hours advance notice to mother.
Father shall have periods of custody with the children every other weekend.
The holidays shall alternate as the parties may agree.
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14. PENSION PLAN(S):
The parties release any interest in the opposite spouse's Pension(s), 401 (k), Retirement Account(s)
Stocks, Bonds, Life Insurance Policies or any other interest wheresoever located and which may have
accumulated prior to, during and/or subsequent to the marriage.
15. COUNSEL FEES AND EXPENSES:
Husband and Wife Acknowledge and agree that the provisions of this Agreement providing for the
equitable distribution of marital property of the parties are fair, adequate and satisfactory to them. Both
parties agree to accept the provisions set forth 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
alimony pendente lite, counsel fees or expenses or any other provisions for their support and maintenance
before, during and after the commencement of any proceedings for divorce or annulment between the
parties. Each party shall pay their respective counsel fees and shall not advance a claim for contribution
from the other party.
16. WAIVERS OF CLAIMS AGAINST ESTATES:
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 estate of the other
as a result of the marital relationship, including without limitation, dower, curtesy, statutory allowance,
widow's allowance, intestate share, right to take against the will of the other, and right to act as
administrator or executor of the others 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.
17. SUBSEQUENT DIVORCE / ATTORNEYS FEES
Wife has filed a no-fault complaint in divorce against Husband under Section 3301 (c) of the
Divorce Code. This Agreement shall be incorporated into but shall not merge into any such judgment
or decree of final divorce.
18. BREACH AND ENFORCEMENT:
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 other such remedies or relief as may be
available to him or her, and the party breaching this Agreement should be responsible for payment of
legal fees and costs incurred by the other in enforcing his or her rights under this Agreement.
A. It is expressly understood and agreed by and between the parties hereto that this Agreement
may be specifically enforced by either Husband or Wife in Equity, or in Law 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 that there is an
adequate remedy at law. The parties to 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.
B. Notwithstanding anything to the contrary herein, Husband and Wife may also proceed with an
action at law for redress of his or her rights under the terms of this Agreement, and in such event it is
specifically understood and agreed that for and in specific consideration of the other provisions and
covenants of this Agreement, each shall waive any right to a jury trial so as to expedite the hearing and
disposition of such case and so as to avoid delay.
C. Each party further hereby agrees to pay and to save and hold harmless the other party from any
and all attorney's fees and costs of litigation that either may sustain, or incur or become liable for, in any
way whatsoever, or shall pay upon, or in consequence of any default or breach by the other of any of the
terms or provisions of this agreement by reason of which either party shall be obliged to retain or engage
counsel to initiate or maintain or defend proceedings against the other at law or equity or both in any way
whatsoever; provided that the party seeks to recover such attorney's fees, and costs of litigation must first
be successful in whole or in part, before there would be any liability for attorney's fees and costs of
litigation. It is the specific agreement and intent of the parties that a broaching or wrongdoing party shall
bear the burden and obligation of any and all costs and expenses and counsel fees incurred by himself or
herself as well as the other party in endeavoring to protect or enforce his or her rights under this
Agreement.
19. ADDITIONAL INSTRUMENTS:
Each of the parties shall from time to time, at the request of the other, execute, acknowledge and
deliver to the other party any and all further instruments that may be reasonably required to give full force
and effect to the provisions of this Agreement.
20. VOLUNTARY EX'I~.CUTION:
The provisions of this Agreement and their legal effect have been completely reviewed by the
parties, and each party acknowledges that the Agreement is fair and equitable, that it is being entered into
voluntarily, with full knowledge of the assets of both parties, and that it is not the result of any duress or
undue influence. The parties acknowledge that they have been furnished with all information relating to
the financial affairs of the other which has been requested by each of them.
21. ENTIRE AGREEMENT:
This Agreement contains the entire understanding of the parties and there are no representations,
warranties, covenants or undertakings other than those expressly set forth herein. Husband and Wife
acknowledge and agree that the provisions of this Agreement with respect to the division and distribution
of marital and separate property are fair, equitable and satisfactory to them based on the length of their
marriage and other relevant factors which have been taken into consideration by the parties. Both parties
hereby accept the provisions of this Agreement with respect to the division of property in lieu of and in
10
full and final settlement and satisfaction of all claims and demands that they may now have or hereafter
have against the other for equitable distribution of their property by any court of competent jurisdiction
pursuant to Section 401(d) of the Divorce Code or any other laws. Husband and Wife voluntarily and
intelligently waive and relinquish any right to seek a court ordered determination and distribution of
marital property, but nothing herein contained shall constitute a waiver by either party of any rights to
seek the relief of any court for the purpose of enforcing any provision of this Agreement.
22. DISCLOSURE:
Husband and Wife each represent and warrant to the other that he or she has made a full and complete
disclosure to the other party of all assets of any nature whatsoever in which such party has an interest, the
sources and amount of the income of such party or every type whatsoever and of all other facts relating to
the subject matter of this Agreement.
23. MODIFICATION AND WAIVER.
A modification and 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 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.
24. PRIOR AGREEMENT:
It is understood and agreed that any and all property settlement agreements which may or have been
executed prior to the date and time of this Agreement are null and void and of no effect as well as any
verbal agreements or representations occurring prior to the effective date of this instxument.
25. DESCR/PTIVE HEADINGSr
The descriptive headings used herein are for convenience only. They shall have no effect whatsoever in
determining the rights or obligations of the parties.
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26. INDEPENDENT SEPARATE COVENANTS:
It is specifically understood and agreed by and between tile parties hereto that each paragraph
hereof shall be deemed to be a separate and independent covenant and agreement.
27. APPLICABLE LAW:
This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania.
28. VOID CLAUSES:
If any terms, conditions, clause or provision of this Agreement shall be determined or declared to
be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken
from this Agreement and in all other respects this Agreement shall be valid and continue in full force,
effect and operation.
29. AGREEMENT BINDING ON H1Z~IRS:
This Agreement shall be binding and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and assigns.
30. FEDERAL, STATE, AND LOCAL INCOME TA~F.~
Father shall be entitled to declare two (2) children as dependents for the purpose of Federal, State, and
Local income taxes.
Mother shall be entitled to declare the remaining three (3) children as dependents for the purpose of
Federal, State, and Local income taxes
IN WITNESS WHEREOF, the parties hereto have set their hand and seals the day and year first above
written intending to be legally bound.
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Cahterine J. B~bner
Commonwealth of Pennsylvania
County of Cumberland
On this, the I~~° ,day of~_~. A.D. 2003, before me a Notary Public appeared
Catherine J. Babner , known' to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, and acknowledged that he executed the same for the purposes
therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
David L. Babner
Commonwe~th of Pen~sylvaaia
County of /_~tv[b;~r-~:L~ ~
On this, the [<~L ,day of ~ A.D.2003, before me a Notary Public appeared
David L. Babner, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, and acknowledged that he executed the same for the purposes
therein contained.
IN WITNESS WHEREOF,~ereunto set T hand anql official seal.
Title of Officer
Seal
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
CATHERINE J. BABNER, :
Plaintiff, :
: No. 03-3979
Civil Action - Divorce
DAVID L. BABNER, :
Defendant :
ACCEPTANCE OF SERVICE
I David L. Babner, accept service of ~he Complaint in Divorce, Notice to Defend and Notice of
Availability of Counseling in the above-captioned matter. I acknowledge that I am the Defendant in said
matter or that I am authorized to accept on behalf of the Defendant.
/ 9-c:,3
Date
M~iling Address
IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
CATHERINE J. BABNER,
PLAINTIFF,
DAVID L. BABNER,
DEFENDANT,
Civil Action---Divorce
Docket No. ~'~>-~0 7C~
AFFIDAVIT OF CONSENT
1. A complaint in divorce under Section 3301(c) of the Divorce Code was filed on
August 14, 2003 and served upon defendant on August 19, 2003 by way of an
Acceptance of Service. (Attached hereto).
2. The marriage of plaintiff and defendant is irretrievably broken and ninety days have
elapsed from the date of service of the divorce Complaint.
3. I consent to the entry of a final decree of divorce.
4. I understand that I may lose rights concerning alimony, division of property, lawyers
fees or expenses ifI do not claim them before a divorce is granted.
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.
Cons. Stat. S 4904 relating to unsworn falsification to authorities.
Date:
Catherine J. Bal~ner, Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
CATHERINE J. BABNER, :
:
PLAINTIFF :
:
VS. :
_.
DAVID L. BABNER, :
DEFENDANT :
Civil Action----Divorce
No. 2003-3979
WAIVER OF NOTICE OF INTENTION TO REI~UEST ENTRY OF DIVORCE
DECREE UNDER SECTION 3301 (C) OF THE DIVORCE CODE
1. I consent to the entry of a final Decree of Divorce without notice.
2. 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.
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.
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:
Catherine J. B~bn~r, Plaintiff
IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
CATHERINE J. BABNER,
PLAINTIFF,
DAVID L. BABNER,
DEFENDANT,
Civil Action---Divorce
Docket No. Off13- 3qTq
AFFIDAVIT OF CONSENT
1. A complaint in divome under Section 3301(c) of the Divorce Code was filed on
August 14, 2003 and served upon defendant on August 19, 2003 by way of an
Acceptance of Service. (Attached hereto).
2. The marriage of plaintiff and defendant is irretrievably broken and ninety days have
elapsed'from the date of service of the divome Complaint.
3. I consent to the entry of a final decree of divome.
4. I understand that I may lose rights concerning alimony, division of property, lawyers
fees or expenses ifI do not claim them before a divorce is granted.
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.
Cons. Stat. S 4904 relating to unsworn falsification to authorities.
Date: //- ~/- Og
David L. Babner, Defendant
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
CATHERINE J. BABNER, :
._
PLAINTIFF :
:
VS. :
:
DAVID L. BABNER, :
:
DEFENDANT :
Civil Action----Divorce
No. 2003-3979
WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF DIVORCE
DECREE UNDER SECTION 3301 (C) OF THE DIVORCE CODE
1. I consent to the entry of a final Decree of Divorce without notice.
2. 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.
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.
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 unsworu falsification to authorities.
Date: //- O~Q/~ (~.~
David L. Babner, Defendant
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
CATHERINE J. BABNER, :
PLAINTIFF, :
VS. :
DAVID L. BABNER, :
DEFENDANT, :
Civil Action---Divorce
Docket No: 03-3979
PRAECIPE TO TRANSMIT THE RECORD
To the Prothonotary:
Please 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. The complaint in Divorce was filed on the 14th day of August, 2003 and served by
Acceptance of Service dated August, 19, 2003. (Attached hereto)
3. The plaintiff, signed her Affidavit of Consent and Waiver of Notice of Entry of a Divorce
Decree on the 26th day of November 2003 which is attached hereto.
4. The plaintiff served her affidavit of consent, and Waiver of Notice of Intent to request Divorce
Decree on defendant on the 20th day of November 2003 and the same was signed the 21st day of
November 2003.
5. There are no related claims pending as between the parties hereto and listed herein to the
extent that all marital issues have been settled by way of a Marital Settlement Agreement which
was executed on the 16th day of September, 2003.
6. The defendant signed a Waiver of Notice of Intention to Request Entry of Divorce Decree on
the 21st day of November 2003 pursuant to Rule 1920.72 a Copy of which is attached hereto
/ Al~rn~y for ~'lain-tiff -- 0 - U
~ 20 South Market Street
/ Mechanicsburg, PA. 17055
717-790-0490
Atty. I.D. 69528
IN THE COURT OF COMMON PLEAS
Of CUMBERLAND COUNTY
STATE OF ~. PENNA.
CATHERINE J. BABNER,
03-3979
NO.
PLAINTIFF
VERSUS
DAVID L. BABNER,
DEFENDANT
DECREE 1N
DIVORCE
AND NOW, /-')czo..,//~ /{ ~', 2003
DECREED ThAT
AND
CATHERINE J. BABNER
DAVID L. BABNER
IT IS ORDERED AND
,PLAINTIFF,
,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 Marital Settlement Agreement executed on the 16TM day of September 2003 shall be
Incorporated into the Divorce Decree and shall not merge.
By The~o~rt: /
PROTHONOTARY
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
CATHERINE J. BABNER, Civil Action - Law
Plaintiff Divorce
V. No. 03 - 3979 Civil Term -a
DAVID L. BABNER, m '
Defendant
?a N
ORDER OF COURT
AND NOW, this / Day of 2012, it is hereby
ORDERED and DECREED that a hearing on the Petition for Enforcement of Marriage
Settlement Agreement is scheduled for the / day of 2012, at °Z ` CJ7? Ate./P.M in Courtroom No. X- of the Cumberland
County Courthouse in Carlisle, Pennsylvania.
cc: 'Jane Adams, Esquire, for Plaintiff
David L. Babner, Defendant
1, .2
01
BY THE COURT:
Catherine J. Babner
Plaintiff
vs
David L. Babner
Defendant
In the Court of Common Pleas of
Cumberland County, PennsAvanA
03-3979 No. qkA Tee
Civil Action -Law "?'" ; °
Divorce C?-r
zC)
a
?
cl,
PR.AECIPE
COMES NOW, Jennifer P. Wilson, Esquire, and enters her appearance in this matter on
behalf of the Defendant, David L. Babner.
David D. Buell, Prothonotary
20
Attorney Info: Anjj)??
Jennifer P. Wilson, Esquire Porney for Defendant
Supreme Court ID # 209893
227 N. High Street, PO Box 116 3 5 a a
Duncannon, PA 17020
717-834-3087
,
1 1 '
29
CATHERINE J. BABNER, IN THE COURT OF COMMON PLEAS
Plaintiff OF CUMBERLAND COUNTY,
PENNSYLVANIA
VS.
CIVIL ACTION -LAW
DIVORCE
DAVID L. BABNER, ,
Defendant NO: 03-3979 Civil Term
ORDER
AND NOW, this a day of `2jjy,,1f/} 0 , 2012, it is hereby ORDERED
that the Defendant's motion for continuance is GRANTED, and the hearing scheduled for April 19,
2012, at 2:00 p.m., is hereby continued to the /7-4f day of _ 2012, at
<< o Jp-m. in Courtroom #_Z/ , ?f 1 Floor of the Cumberland County Courthouse in
Carlisle, Pennsylvania.
cc: ? Jane Adams, Esquire, 17 W. South St., Carlisle, PA 17013 (Plaintiff's counsel)
Jennifer P. Wilson, Esquire, P.O. Box 116, Duncannon, PA 17020 (Defendant's counsel)
Cop; es rha.-ir y 31>?11 ?.
Rfiet
1
BY THE COURT:
CATHERINE J. BABNER,
Plaintiff
VS.
DAVID L. BABNER,
Defendant
c- ,
IN THE COURT OF COMMO"IXO .
OF CUMBERLAND COUNTY'
PENNSYLVANIA cD
CIVIL ACTION -LAW
DIVORCE -
c
NO: 03-3979 Civil Term
ANSWER TO PLAINTIFF'S PETITION TO ENFORCE MARRIAGE SETTLEMENT
AGREEMENT
COMES NOW, David L. Babner, by and through his attorney, Jennifer P. Wilson, Esquire,
and submits this Answer to the Petition for Enforcement of Marriage Settlement Agreement:
1-5. Admitted.
6. Admitted in part; denied in part. Defendant avers that he paid more than the amount
of child support promised in the marital settlement agreement in certain periods, and
less than the amount of child support promised in the marital agreement in certain
periods.
7. Admitted in part; denied in part. Defendant avers that Paragraph 12(b) of the
Separation and Property Settlement Agreement, which is attached to Plaintiff's
Petition as "Exhibit A"speaks for itself regarding medical insurance and expenses.
Defendant specifically denies that all unreimbursed medical expenses were to be
divided equally, and further denies that he has failed to pay his share.
8-9. Admitted in part; denied in part. Defendant admits that he has not provided health
insurance coverage for the children since approximately April, 2006, and states that
he lacks knowledge or information sufficient to form a belief as to whether Plaintiff
1
has provided medical insurance coverage for the children since April, 2006.
10. Denied that Plaintiff is entitled to the relief requested.
NEW MATTER - DEFENSES
11. Defendant made payments of $150.00 per week from August 2003 until September
2003; $225.00 per week from October 2003 until April 2006; $318 per month from
May 2006 until August 2010; $350 per month from September 2010 until July 2011;
$737 per month from August 2011 until December 2011; and $670 per month from
January 2012 until present.
12. During the period 2003 until April 2006, Defendant paid a higher amount of child
support than was required under the Property Settlement Agreement.
13. On March 21, 2006, Plaintiff filed a petition for child support, and was awarded
support in the sum of $318.00 per month. The Interim Order of Court and Support
Master's Recommendation and Report are attached as "Exhibit A." The initial
support order was subsequently modified.
14. Plaintiff filed the petition for child support because Defendant was incarcerated in
a state correctional institution for a four to eight year sentence.
15. Plaintiffs claim that Defendant breached the support agreement in the Property
Settlement Agreement accrued on March 21, 2006, when she filed her petition for
support, and is now barred by the four-year period of limitations. See 42 Pa.C.S.A.
§ 5525(8).
16. If the Court does not find that Plaintiff s claim is barred by the statute of limitations,
then Defendant requests that the Court order a modification of the support agreement,
2
nunc pro tunc, pursuant to 23 Pa.C.S.A. § 3105(b), effective as of April, 2006.
17. Modification of the support agreement was warranted as of April 2006, because
Defendant was incarcerated in a State Correctional Institution at that time for a period
of four to eight years, severely limiting his earning capacity.
18. The circumstance of Defendant's incarceration was not foreseeable at the time the
parties entered into the Property Settlement Agreement.
19. Retroactive modification of the support agreement is warranted because the
Defendant was not represented by counsel for the divorce and Property Settlement
Agreement, and was not represented by counsel for any of the support proceedings
until 2011.
20. Retroactive modification of the support agreement is warranted for the additional
reason that the children have now all reached the age of 18, and the youngest child
will graduate from high school next month. (See Petition ¶ 3.)
21. Thus, any additional payments of support under the support agreement at this time
will accrue to the benefit of Plaintiff rather than the children, which was not
contemplated by the Property Settlement Agreement and is not the purpose of child
support.
22. In the alternative, Defendant contends that the amounts he actually paid in support
from 2003 until present must be offset against any amount that the Court may
determine that he owes in order to prevent a double recovery. See Nicholson v.
Combs, 550 Pa. 23,44-45 (1997).
3
WHEREFORE, Defendant requests that the Court dismiss or deny Plaintiff's Petition to
Enforce Marriage Settlement Agreement.
May 7, 2012
Encl.: Exhibit A - Child Support Order
Respectfully Sgmitted:
Jer fer P. Wilson, Esquire
Sup' me Court ID # 209893
227 X. High St., P.O. Box 116
Duncannon, PA 17020
717-834-3087
Attorney for David L. Babner
4
I verify that the statements made in the foregoing Answer are true and correct to my best
personal knowledge, understanding, information and belief. I understand that false statements herein
are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to
authorities.
David L. Babner
C7?
CATHERINE J. BABNER, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. DOMESTIC RELATIONS SECTION
DAVID L. BABNER, PACSES NO. 072108160
Defendant DOCKET NO. 274 SUPPORT 2006
INTERIM ORDER OF COURT
AND NOW, this 5th day of June, 2006, upon consideration of the Support
Master's Report and Recommendation, a copy of which is attached hereto as Exhibit
"A", it is ordered and decreed as follows:
A. Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit
as support for his children, Bryan J. Babner, born May 3, 1992, Aaron D. Babner,
born August 10, 1992, Joseph H. Babner, born March 25, 1994, and Sarah M.
Babner, born May 1, 1994, the sum of $318.00 per month.
B. Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit
the additional sum of $82.00 per month on arrearages.
C. The Plaintiff shall provide health insurance coverage for the benefit of said
children as is provided through employment or other group coverage at a
reasonable cost.
-?; J h
D. The Defendant shall pay 54% of the unreimbursed medical expenseili ed b?
said children as that term is defined in Pa. R.C.P. 1910.16-6(c).
E. The effective date of this order is March 21, 2006. "'
70
IMPORTANT LEGAL NOTICE N
PARTIES MUST WITHIN SEVEN DAYS INFORM THE DOMESTIC -?
RELATIONS SECTION AND THE OTHER PARTIES, IN WRITING, OF ANY
MATERIAL CHANGE IN CIRCUMSTANCES RELEVANT TO THE LEVEL OF
SUPPORT OR THE ADMINISTRATION OF THE SUPPORT ORDER, INCLUDING,
BUT NOT LIMITED TO, LOSS OR CHANGE OF INCOME OR EMPLOYMENT
AND CHANGE OF PERSONAL ADDRESS OR CHANGE OF ADDRESS OF ANY
CHILD RECEIVING SUPPORT. A PARTY WHO WILLFULLY FAILS TO REPORT
A MATERIAL CHANGE IN CIRCUMSTANCES MAY BE ADJUDGED IN
CONTEMPT OF COURT AND MAY BE FINED OR IMPRISONED.
PENNSYLVANIA LAW PROVIDES THAT
IF SUCH A REVIEW IS REQUESTED
REVIEWED AT LEAST THREE (3) Y
BY ONE OF THE PARTIES.
EXHIBIT A
A MANDATORY INCOME ATTACHMENT WILL ISSUE UNLESS THE
DEFENDANT IS NOT IN ARREARS IN PAYMENT IN AN AMOUNT EQUAL TO
OR GREATER THAN ONE MONTH'S SUPPORT OBLIGATION AND (1) THE
COURT FINDS THAT THERE IS GOOD CAUSE NOT TO REQUIRE IMMEDIATE
INCOME WITHHOLDING; OR (2) A WRITTEN AGREEMENT IS REACHED
BETWEEN THE PARTIES WHICH PROVIDES FOR AN ALTERNATE
ARRANGEMENT.
DELINQUENT ARREARAGE BALANCES MAY BE REPORTED TO
CREDIT AGENCIES. ON AND AFTER THE DATE IT IS DUE, EACH UNPAID
SUPPORT PAYMENT SHALL CONSTITUTE A JUDGMENT AGAINST YOU.
IT IS FURTHER ORDERED THAT, UPON PAYOR'S FAILURE TO
COMPLY WITH THIS ORDER, PAYOR MAY BE ARRESTED AND BROUGHT
BEFORE THE COURT FOR A CONTEMPT HEARING; PAYOR'S WAGES,
SALARY, COMMISSION, AND/OR INCOME MAY BE ATTACHED IN
ACCORDANCE WITH LAW.
The parties are hereby advised that they may file written exceptions to the
Support Master's Report and Recommendation within ten (10) days of this order.
Exceptions shall conform with the requirements of Rule 1910.12(f), Pa. R.C.P. If written
exceptions are filed by any party, the other party may file exceptions within ten (10) days
of the date of service of the original exceptions. If no exceptions are filed within ten (10)
days of this interim order, this order shall then constitute a final order.
By the Court,
E w d E. J.
Cc: Catherine J. Babner
David L. Babner
Michael D. Matter, Esquire
For the Plaintiff
DRO
CATHERINE J. BABNER, : IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. DOMESTIC RELATIONS SECTION
DAVID L. BABNER, PACSES NO. 072108160
Defendant DOCKET NO. 274 SUPPORT 2006
SUPPORT MASTER'S REPORT AND RECOMMENDATION
Following a hearing held before the undersigned Support Master on
May 12, 2006, the following report and recommendation are made:
FINDINGS OF FACT
1. The Plaintiff is Catherine J. Babner, who resides at 159 North Locust Street,
Mechanicsburg, Pennsylvania.
2. The Defendant is David L. Babner, who resided at 9 West Butler Street, Apartment 2,
Mt. Holly Springs, Pennsylvania, but is now an inmate at the state correctional
facility in Camp Hill, Pennsylvania.
3. The parties are the parents of four minor children, Bryan J. Babner, born May 3,
1992, Aaron D. Babner, born August 10, 1992, Joseph H. Babner, born March 25,
1994, and Sarah M. Babner, born May 1, 1994, all of whom reside with the Plaintiff.'
4. The parties were married but have been divorced since December,, 2003.
5. On March 21, 2006 the Plaintiff filed a complaint for support of sa'W'-;Rtldreig
6. Prior to March 21, 2006 the Defendant had been paying support to thFPainh`'t
pursuant to a private agreement entered at the time of their divorce.--) 'U
7. The Plaintiff is employed by Housing Opportunities Unlimited and flan annul
salary of $36,000.00. J
8. The Plaintiff receives an adoption subsidy for Bryan and Joseph in the amount of
$20.97 per child per day.
9. The Plaintiff files her federal income tax return as head of household and claims five
children as dependency exemptions.2
' Aaron and Sarah are the parties' natural children; Bryan and Joseph are the parties' adopted children.
2The Plaintiff has a 17 year old child to another relationship.
EXHIBIT "A"
10. On March 21, 2005 the Defendant was employed by Pennsy Supply Company but on
that date was awaiting sentencing on criminal charges involving sexual misconduct
with one or more of said children.
11. The Defendant earned $15.19 per hour but worked considerable overtime.
12. The Defendant was working an average of 55 hours per week when the complaint
was filed.
13. The Defendant has a 401(k) plan with his employer valued at approximately
$54,000.00, which the Defendant believes was rolled into an Individual Retirement
Account.
14. On April 25, 2006 the Defendant was sentenced to a term of imprisonment of four to
eight years in a state correctional facility.
15. The Defendant has been incarcerated since April 25, 2006.
16. The Defendant's employment with Pennsy Supply ended on April 24, 2006.
17. The Defendant's tax filing status is single.
DISCUSSION
The issue in this case is whether a support order can be entered against a parent who
was gainfully employed on the date of filing of the support complaint but who becomes
incarcerated and is not employed on the date of the hearing. This appears to be a case of first
impression in this Commonwealth.
The case is analogous to, but differs procedurally from, the case of Yerkes v. Yerkes,
824 A.2d 1169 (Pa. 2003). In Yerkes the father was under a court order to pay support for
his minor children, a daughter and a son. Two years later he was arrested for sexually
assaulting his daughter and was subsequently convicted and incarcerated. While incarcerated
the father filed a petition for modification of his support obligation because he was
financially unable to pay support because of his incarceration in a state correctional facility.
The trial court dismissed the petition, which dismissal was upheld by the Superior Court.
The Pennsylvania Supreme Court accepted the father's appeal because it had never addressed
the issue of whether an obligor's incarceration, standing alone, constitutes a "material and
substantial change of circumstances" that provides sufficient grounds to modify a support
obligation. After thoroughly reviewing approaches to this issue taken by other states, the
Pennsylvania Supreme Court adopted what is referred to as the "no justification" rule, which
states that criminal incarceration, standing alone, is not a "material and substantial change of
circumstances" sufficient to modify a support order.
The present case, however, is not before this court on an obligor's petition to modify
a support order. Rather it is here on the obligee custodial parent's original complaint for a
2
support order against the obligor non-custodial parent. Had a support order been in place
before the Defendant's incarceration, it is clear that Yerkes would control, and the order
would continue to charge during the period of incarceration. Does the procedural posture of
the case preclude the application of the Yerkes holding? In recommending that it does not,
this Master looks to the language of Justice Nigro's majority decision in Yerkes, where he
stated that:
Reality dictates that the parental obligation of support be guided by the
parents' respective capacities and abilities, which depends on the parents'
property, income and earning capacity. Costello v. LeNoir, 462 Pa. 36, 337
A.2d 866, 868 (Pa. 1975); Conway v. Dana, 456 Pa. 536, 318 A.2d 324, 326
(Pa. 1974). These capacities and abilities are to be addressed at the time that
child support payments are sought. Costello, 337 A.2d at 868; see also
Labar v. Labar, 557 Pa. 54, 731 A.2d 1252, 1253 n.1 (Pa. 1999)(citing
Costello rule).
Consequently in this case the capacities and abilities of the parties will be addressed on the
date that the Plaintiff sought support, i.e. the filing date of the complaint.
On March 21, 2006 the Plaintiff was employed by Housing Opportunities Unlimited
where she earned a gross annual salary of $36,000.00, or $3,000.00 per month. Filing her
federal income tax return as head of household and claiming five children as dependency
exemptions, she has net monthly income for support purposes of $2,646.00.3
In March, 2006 the Defendant was employed by Pennsy Supply where he earned
$15.19 per hour and was working an average of 55 hours per week receiving overtime for
hours worked over 40. His average gross weekly income was $949.00, or $4,112.00 per
month. Filing his federal income tax return as a single individual would result in net monthly
income of $3,061.00.
With combined net monthly income of $5,707.00 the basic support requirement for
the support of four children is $1,630.00.4 The Defendant's proportionate share of that
amount is $874.00 per month.5
A support order calculated pursuant to the guidelines is presumed to be correct, but
the presumption may be rebutted by evidence that the guideline amount is unjust or
inappropriate under the circumstances of the case. Landis v. Landis, 691 A.2d 939 (Pa.
Super. 1997). Pa. R.C.P. 1910.16-5 sets forth factors the finder of fact is to consider in
determining whether to deviate from the guidelines. "Other income in the household" is one
such factor.6 In this case the Plaintiff is receiving an adoption subsidy of $20.97 per child
per day for a total of $15,308.00 annually. This increases her monthly available cash flow by
$1,276.00 with which to support the children. While the support guidelines do not
' See Exhibit "A" for the tax deductions from gross income.
a See Pa. R.C.P. 1910.16-3.
5 See Exhibit "B" for the guideline calculation.
6 Pa R.C.P. 1910.16-5(b)(3).
specifically address income of this type, this Master elects to treat the adoption subsidy in the
same manner as social security derivative benefits received as the result of the death of a
parent. The monthly amount of the benefit is added to the combined net monthly incomes of
the parties and the support requirement is computed based upon this adjusted combined
income. From that amount the monthly benefit is deducted, and the balance is then divided
proportionately between the parties.' Following this methodology the Defendant's monthly
support obligation would be $318.00 per month.8 This amount will be recommended
effective March 21, 2006.9
RECOMMENDATION
A. The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit
as support for his children, Bryan J. Babner, born May 3, 1992, Aaron D. Babner,
born August 10, 1992, Joseph H. Babner, born March 25, 1994, and Sarah M. Babner,
born May 1, 1994, the sum of $318.00 per month.
B. The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit
the additional sum of $82.00 per month on arrearages.
C. The Plaintiff shall provide health insurance coverage for the benefit of said children
as is provided through employment or other group coverage at a reasonable cost.
D. The Defendant shall pay 54% of the unreimbursed medical expenses incurred by said
children as that term is defined in Pa. R.C.P. 1910.16-6(c).
' The methodology is set forth in Pa. R.C.P. 1910.16-2(b)(2).
S See Exhibit "C" for the calculation.
9 This Master notes that on May 19, 2006 the Pennsylvania Supreme Court amended Pa. R.C.P. 1910.19 by
adding the following subparagraph:
(f) Upon notice to the obligee, with a copy to the obligor, explaining the basis for the proposed
modification or termination, the court may modify or terminate a charging order for support
and remit any arrears, all without prejudice, when it appears to the court that:
(1) the order is no longer able to be enforced under state law; or
(2) the obligor is unable to pay, has no known income or assets and there is no reasonable
prospect that the obligor will be able to pay in the foreseeable future.
The notice shall advise the obligee to contact the domestic relations section within 60 days of the
date of mailing of the notice if the obligee wishes to contest the proposed modification or
termination. If the obligee objects, the domestic relations section shall schedule a conference to
provide the obligee the opportunity to contest the proposed action. If the obligee does not respond
to the notice or object to the proposed action, the court shall have the authority to modify or
terminate the order and remit any arrears, without prejudice.
No position is taken by this Master at this time as to whether the provisions of said amendment should be
applied to the present case.
4
9)
E. The effective date of this order is March 21, 2006.
zoo a-c-? ?
Date Michael R. Rundle
Support Master
In the Court of Common Pleas of Cumberland County, Pennsylvania
Tax Detail Report
Plaintiff Name: Catherine J. Babner
Defendant Name: David L. Babner
Docket Number: 274 S 2006
PACSES Case Number: 072108160
Other State ID Number:
Tax Year: Current: 2006
Defendant Plaintiff
1. Tax Method 1040 ES 1040 ES
2. Fling Status Single Single
3. Who Claims the Exem tions Customize
4. Number of Exemptions 1 6
5. Monthly Taxable Income $4,112.30 $3,000.00
6. Deductions Method
7. Deduction Amount $429.17 $429.17
8. Exemption Amount $275.00 $1,650.00
9. Income MINUS Deductions and Exemptions $3,408.13 $920.83
10. Tax on Income $565.16 $106.67
11. Child Tax Credit - $106.67
12. Manual Adjustments to Taxes - -
13. Federal Income Taxes $565.16 -
13 a. Earned Income Credit -
_
14. State Income Taxes $129.95 $94.80
15. FICA Payments $314.59 $229.50
16. City Where Taxes Apply
17. Local Income Taxes $41.12 $30.00
TOTAL Taxes $1,050.82 $354.30
SupportCak 2006
-V%FUTDTT „Tn
In the Court of Common Pleas of Cumberland County, Pennsylvania
Support Guideline worsneez
Rule 1910.16-1, et Seg.
Defendant Name: David L. Babner Docket Number: 274 S 2006
PACSES Case Number: 072108160
Plaintiff Name: Catherine J. Babner Other Case ID Number:
:Defendant Plaintiff
1. Number of Depend ents in this Case
2. Total Gross Monthly Income
3. Less Monthly Deductions
$4,112.30
$1,050.82 4
$3,000.00
$354.30
4. Monthly Net Income
Line 2 minus Line 3 $3,061.48 $2,645.70
5. Combined Total Monthly Net Income
nts on Line 4 Combined
A $5,707.18
mou
6. Plus Child's Monthly Soc. Sec. Retirement or Disabili Derivative Benefit. -
7. Adjusted Combined Total Monthly Net Income
8. PRELIM9IARY Child Support Obligation based on Adjusted income Line 7
-
9. Less Child's Monthly Social Security Retirement or Disability Derivative 0
Benefit Line 6
10. Basic Child Support Obligation
From Rule 1910.16-3 Basic Child Support Schedule Table Rev. 112006 $1,630.00
11. Net Income as a Percentage of Combined Amount
12. Each Parent's Monthly Share of the Child Support Obligation 53.64
$874.33 46.36
$755.67
13. Adjustment for Shared Custody Rule 1910.16-4 c # of Ovemi hts: - -
14. Adjustment for Child Care Expenses Rule 1910.16-6 a -
15. Adjustment for Health Insurance Premiums Rule 1910.16-6 b -
16. Adjustment for Unreimbursed Medical Ex enses Rule 1910.16-6 c -
17. Adjustment for Additional Expenses Rule 1910.16-6 d -
18. Total Obligation with Adjustments Line 8 minus Line 9, /us Lines 10, $874.33
19. Less Split Custody Counterclaim Rule 1910.16-4 d -
20. Obligoes Support Obligation Line 14 minus Line 15 $874.33
PrannrPH by mrr Date: _ 6i 212006
Summarr Report
S1. PACSES Multiple Family Adjustment -
S2. Spousal Support Award -
S3. Adjustment for Excess Mortgage Payments (If Applicable) -
S4. Custodial Parent Spousal Support Obligation (if Applicable) (-) -
S5. Adjusted Support Obligation
Line 16 (or S1, if applicable) plus Line S2 and S3 minus S4 (if applicable) Monthly:
$874.33 Weekly:
$201.23
TAX INFORMATION Tax Method Filing Status Exemptions
S6. Defendant 1040 ES Single 1
S7. Plaintiff 1040 ES Single 6
S8. Total Support Amount if Deviating from Guidelines Cal .ulation Monthly:
-
Weekly:
from Guidelines Calculation and/or Other Case Comments:
SupportCalc 2006
EXHIBIT "B"
Lt
In the Court of Common Pleas of Cumberland County, Pennsylvania
tppti?r t+l1. 04, TV, Wet
Defendant Name: David L. Babner Docket Number: 274 S2006
PACSES Case Number: 072108160
Plaintiff Name: Catherine J. Babner Other Case ID Number
Defendant Plaintiff
1. Number of Dependents in this Case 4
2. Total Gross Month/ Income $4,112.30 $3,000.00
3. Less Month/ Deductions $1,050.82 $354.30
4. Monthly Net Income $3,061.48 $2,645.70
Line 2 minus Line 3
5. Combined Total Monthly Net Income }. { $5,707.18
a ,?T
Amounts on Line 4 Combined
6. Plus Child's Month/ Soc. Sec. Retirement or Disability Derivative Benefit. " $1,276 00
•`
7. Adjusted Combined Total Month/ Net Income _ $6,983.18
8. PRELIMINARY Child Support Obfl tion based on-Ad' ted-1'nc Lane 7 $1,869.00
9. Less Child's Monthly Social Security Retirement or Disability Derivative
O $1,276 00
Benefit Line 6
10. Basic Child Support Obligation $593.00
From Rule 1910.16-3 Basic Child Su it Schedule Table Rev. 112006 r ,
11. Net Income as a Percentage of Combined Amount 53.64 46.36
12. Each Parent's Month Share of the Child Support Obligation $318.09 $274.91
-
13. Adjustment for Shared Custody Rule 1910.16-4 c # of Overnights:
14. Adjustment for Child Care Expenses Rule 1910.16-6 a -
15. Adjustment for Health Insurance Premiums Rule 1910.16-6 b -
16. Adjustment for Unreimbursed Medical Expenses Rule 19111.16-6 c -
IT. Adjustment for Additional Expenses Rule 1910.16-6 d
18. Total Obligation with Adjustments Line 8 minus Line 9, plus Lines 10, $318.09
19. Less Split Custody Counterclaim Ruie 1910.16-4 d -
20. Obligor's Support Obligation Line 14 minus Line 15 , $318.09
Prepared bv: mrr - Date: 6/ 212006
51. PACSES Multiple Family Adjustment
-
S2. Spousal Su ? ot# Awarxl $29.31
S3. Adjustment for Excess Mortgage Payments (If Applicable) -
S4. Custodial Parent Spousal Suppoit Obligation (if Applicable) (-) -
S5. Adjusted Support Obligation
Line 16 (or S1, if applicable) Pius Line S2 and S3 minus S4 (if applicable) Monthly:
$347.40 Weekly:
$79.95
TAX INFORMATION Tax Method Filing Status _ Exemptions
S6. Defendant 1040 ES Single 1
S7. Plaintiff 1040 ES Single 6
S8. Total Support Amount If Deviating from Guidellr lat.; Cvk,,wif on Monthly: Weekly:
S9. Justification for Deviating from Guidelines
SupportCak 2006
n
EXHIBIT "C"
CATHERINE J. BABNER,
Plaintiff,
V.
DAVID L. BABNER,
Defendant.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVAT
No. 03-3979 CIVIL
IN RE: PETITION TO ENFORCE MARRIAGE SETTLEMENT AGREEMENT
BEFORE HESS, P.J.
ORDER
AND NOW, this !B? day of July, 2012, upon consideration of Plaintiffs Petition t,
Enforce Marriage Settlement Agreement, Defendant's Answer and New Matter, and following
hearing, held May 17, 2012, Plaintiffs Petition is GRANTED to the extent that it is herel
ordered and directed that Defendant is to pay to Plaintiff the amount of $2,305.00.
BY THE COURT,
Jane Adams, Esquire
For the Plaintiff
"Jennifer P. Wilson, Esquire
For the Defendant
Kevin X. Hess, P.J.
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CATHERINE J. BABNER,
Plaintiff,
V.
DAVID L. BABNER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVAT
NO. 03-3979 CIVIL
IN RE: PETITION TO ENFORCE MARRIAGE SETTLEMENT AGREEMENT
BEFORE HESS, P.J.
OPINION and ORDER
Before the Court is Plaintiff's petition to enforce a marriage settlement agreement
into by the parties in connection with the entry of a divorce decree. (Plaintiffs Petition
Enforce Marriage Settlement Agreement, filed Mar. 6, 2012). The issue is what, if any, sums
money are due and owed to Plaintiff under the settlement agreement. Plaintiff requests the
of judgment against Defendant for unpaid child support, un-provided medical insurance,
counsel fees. For the reasons that follow, Plaintiff will be entitled to enforcement of
agreement to the extent that Defendant will be directed to pay to Plaintiff the amount
$2,305.00.
The facts of this case, relevant to the instant petition, may be summarized as
Plaintiff Catherine J. Babner and Defendant David L. Babner were married on November q,
1991 and later separated. A subsequent marriage settlement agreement provided for the
of their four children, Sarah, Joseph, Aaron, and Brian. Specifically, an agreement, reached
September 16, 2003, provided, in pertinent part, as follows:
12. SUPPORT
(A) Child Support
Husband shall pay child support in the amount of $150.00 dollars per week for
the period of 2003 thru to the end of 2004.
Husband shall pay child support in the amount of $175.00 dollars per week for
the periods of 2005 to the end of 2006.
Husband shall pay child support in the amount of $200.00 dollars per week for
the periods of 2007 to the end of 2008.
Husband shall pay child support in the amount of $225.00 dollars per week for
the periods of 2009 to the end of 2010.
Husband shall pay child support in the amount of $125.00 dollars per week for
the periods of 2011 until Sara graduates from high school in 2012.
(B) Medical Insurance for Children
Father shall provide full medical health insurance coverage for the children
until they graduate from high school, reach the age of eighteen (18), obtain a
Bachelor's degree whichever of these conditions is the last to occur.
18. BREACH AND ENFORCEMENT
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
other such remedies or relief as may be available to him or her, and the party
breaching this Agreement should be responsible for payment of legal fees and
costs incurred by the other in enforcing his or her rights under this agreement.
C. Each party further hereby agrees to pay and to save and hold harmless the other
party from any and all attorney's fees and costs of litigation that either may
sustain, or incur or become liable for, in any way whatsoever, or shall pay upon,
or in consequence of any default or breach by the other of any of the terms or
provisions of this agreement by reason of which either party shall be obliged to
retain or engage counsel to initiate or maintain or defend proceedings against the
other at law or equity or both in any way whatsoever; provided that the party
seeks to recover such attorney's fees, and costs of litigation must first be
successful in whole or in part, before there would be any liability for attorney's
fees and costs of litigation. It is the specific agreement and intent of the parties
that a breaching or wrongdoing party shall bear the burden and obligation of any
and all costs and expenses and counsel fees incurred by himself or herself as well
as the other party in endeavoring to protect or enforce his or her rights under this
Agreement.
(Petitioner's Ex. 2, admitted at Hearing, May 17, 2012).
2
A final divorce decree was entered on December 16, 2003, which decree recited t]
"[t]he Marital Settlement Agreement executed on the 161` day of September 2003 shall
Incorporated into the Divorce Decree and shall not merge." (Petitioner's Ex. 1, admitted
Hearing, May 17, 2012).
In April of 2006, Defendant was incarcerated in a state prison and remained imprison
until August of 2010, when he was released on parole. Immediately prior to Defendant
incarceration, on March 21, 2006, Plaintiff filed a complaint for child support in the Cumberlar
County Court of Common Pleas. In June, 2006, Defendant was ordered by the Court to pay I
the Pennsylvania State Collection and Disbursement Unit as support for the four children tr
sum of $318.00 per month, as well as the additional sum of $82.00 per month in retroactive]
applied arrearages. (Interim Order of Court, Jun. 5, 2006). Over the course of the succeedir
several years, Defendant's support obligation under the order was increased to $350.00 p
month, beginning in September, 2010, and again in August, 2011 when Defendant was on
to pay $737.00 per month, which included retroactive arrearage payments of $67.00 per n
for the following 5 months. Thus, in January of 2012 Defendant's support order oblig
returned to $670.00 per month.
At our hearing, testimony was adduced from both parties concerning the amount of
support paid by Defendant under the settlement agreement. The parties agreed that Defend
met his support obligation under the support order for the entire period of his incarceratii
paying $318.00 per month from April of 2006 through August of 2010. (See Petitioner's Ex.
admitted at Hearing, May 17, 2012; Respondent's Ex. 2, admitted at Hearing, May 17, 201
Following his release from prison, Defendant obtained employment and continued to rem;
current on his support obligations under the support order, paying $350.00 per month frc
3
September, 2010 to July, 2011; $737.00 per month from August, 2011 to December, 2011; a
$670.00 per month from January, 2012 through June, 2012. (See Petitioner's Ex. 3, admitted
Hearing, May 17, 2012; Respondent's Ex. 2, admitted at Hearing, May 17, 2012). Thus, as i
as is discernible from the record, Defendant has remained current with his support obligation
outlined in the support order.
On March 6, 2012, Plaintiff filed a petition to enforce the marriage settlement agreemei
alleging that, although her former husband had remained current under the support order, t
settlement agreement required him to pay over and above the support order amount. In 1
answer and new matter, Defendant raised certain affirmative defenses, asserting that, initial
Plaintiff's claim was either barred in its entirety by the applicable statute of limitations, or, in t
alternative, that Plaintiff's claim must be limited to the four years immediately preceding t
filing of the petition. Moreover, Defendant requested that we modify the support provision
the marriage settlement agreement, nunc pro tunc, pursuant to 23 Pa.C.S.A. § 3105(b) 1
reasons of justifiable reliance on the support order and an unforeseen inability to pay t
increased amount as a result of his incarceration. Lastly, Defendant requested, and Plaintiff d
not oppose, that the support payments made pursuant to the court order be deducted from t
amount owed under the support agreement.
Marriage settlement agreements, which have been incorporated but not merged into
divorce decree, are governed by the law of contracts and are to be construed in accordance wit
the well-established principles of contract law. Sorace v. Sorace, 440 Pa.Super. 75, 78-79, 65
A.2d 125, 127 (1995). It is well established that the law governing marital settlemer
agreements, as well as contracts, provides a four-year statute of limitations within which on
must bring an action. 42 Pa.C.S.A. § 5525(a)(8); see also Crispo v. Crispo, 2006 PA Super 26,
4
T 18, 909 A.2d 308, 312-13. Furthermore, a fundamental tenet of contract law requires a court 1
ascertain and give effect to the intent of the contracting parties when construing the terms of
contract. Mace v. Atlantic Refining Mktg. Corp., 567 Pa. 71, 80, 785 A.2d 491, 496 (2001). "T
that end we must look to the terms of the contract when called upon to construe rights pursuai
thereto. The contract must be construed only as written. If [a marital settlement] agreemei
contains clear and unambiguous terms, a court may not modify the plain meaning of the wor
under the guise of interpretation." Frank v. Frank; 402 Pa.Super. 458, 462, 587 A.2d. 340, 34
(1991).
Despite this broad grant of deference to those who contract to privately determine mattei
relating to their divorce, Pennsylvania courts have consistently held that "parties' agreement
pertaining to matters of child support or child custody are always subject to court intervention. '
Deasy v. Deasy, 730 A.2d 500, 502 (Pa.Super.Ct.1999). Moreover, the Pennsylvania legislatur
codified this equitable authority at 23 Pa.C.S.A. § 3105(b), which provides as follows: '
provision of an agreement regarding child support, visitation or custody shall be subject t
modification by the court upon a showing of changed circumstances." Indeed, the Pennsylvania
Supreme Court has found that, while "[p]arties to a divorce action may bargain betwee
themselves and structure their agreement as best serves their interests ...[t]hey have no power,
however, to bargain away the rights of their children." Knorr v. Knorr, 527 Pa. 83, 86, 588 A.2
503, 505 (1991) (internal citations omitted).
In Nicholson v. Combs, 550 Pa. 23, 703 A.2d 407 (1997), the Pennsylvania Suprem
Court addressed the issue of whether a child support provision contained in a property settlemen
agreement that was incorporated, but not merged, into a divorce decree prior to the effective dat ,
of 23 Pa.C.S. § 3105 may be subject to a reduction by the trial court. In holding that such
5
provision was not subject to modification, the Supreme Court reasoned that, in 1987, when ti
parties executed their property settlement agreement, support provisions of an incorporated bi
unmerged agreement were clearly not subject to downward modification by a court by reason c
long-standing precedent to the contrary. Nicholson, 550 Pa. at 31, 703 A.2d at 411 (citing Broi?
v. Hall, 495 Pa. 635, 435 A.2d 859 (1981)). Thus, the Court in Nicholson decided that ca:
pursuant to the law in effect prior to the 1988 amendments to the Divorce code. In contrast t
the state of the law that formed the basis for the Nicholson decision, the instant case must t
decided pursuant to current law.
Section 3105(b) of the Divorce Code addresses the modification of marital settlemei
agreements between parties and provides, in pertinent part, as follows:
(b) Certain provisions subject to modification. - A provision of an agreement
regarding child support, visitation or custody shall be subject to modification by
the court upon a showing of changed circumstances.
23 Pa.C.S.A. § 3105(b).
As is clear; the statute on modification of a child support provision contained within
marital settlement agreement is silent with respect to the issue of retroactive application.
have found no appellate case addressing the specific issue before us; that is, whether § 310;
may be applied retroactively, not to agreements executed before the effective date of the stal
as was the issue in Nicholson, supra, but rather to marital settlement agreements which
clearly governed by the current Divorce Code. Notwithstanding, we are satisfied that the bi
and equitable powers of the court in dealing with matters of child support are sufficient to pei
retroactive modification of the obligations of a party to a marital settlement agreement where
obligation relates to the support of a child. It is simply "`inconceivable' that [agreements wl
provide for both property and support matters] would be irreversible when the interest of jus
6
and the best interests of the child require otherwise." Thompson v. Rose, 698 A.2d 1321, 1K
(1997) (internal citations omitted).
Pennsylvania Rule of Civil Procedure 1910.19(f) provides that a court may retroactive
modify or terminate a support order or arrearages thereunder when it appears that the obligor
unable to pay, has no income or assets, and there is no reasonable prospect that the obligor wi
obtain the ability to pay in the foreseeable future. Pa.R.Civ.P. 1910.19(f). The explanatoi
comment accompanying paragraph (f) provides that "...an obligor with no verifiable income c
assets whose institutionalization, incarceration or long-term disability precludes the payment c
support renders the support order unenforceable and uncollectible, diminishing the perception c
the court as a source of redress and relief." Pa.R.Civ.P. 1910.19, Expl.Cmt. 2006. "Therefore
the law of this Commonwealth now affords an incarcerated parent the ability to petition 1
modify or terminate their support obligation where they are able to prove that the order is n
longer able to be enforced under state law or that the incarcerated obligor parent is without th
ability to pay their child support obligation and there is no reasonable prospect that they will d
so for the foreseeable future." Plunkard v. McConnell, 2008 PA Super 282, ¶ 9, 962 A.2d 122'
1230-31. Thus, in the realm of support orders, an incarcerated parent is afforded the opportunit
to petition the court for the retroactive modification of arrearages based on a showing of change
circumstances which resulted from the incarceration itself. We understand that the law wit
regard to support orders and marital settlement agreements is different. Nonetheless, we see n,
reason why the opportunity to modify should not be afforded to an incarcerated parent who i
obligated to pay support under a marital settlement agreement.
We find, also, that the four year statute of limitations applicable to actions sounding ii
breach of contract limits Plaintiff's recovery to the four years immediately preceding the filing o
7
the instant petition. The marriage settlement agreement obligated Defendant to pay over
Plaintiff various specified amounts each month in support of their children. Thus, a bre?
occurred each time Defendant made a payment in an amount less than was required under 1
agreement. As a result, Plaintiff's claim is limited to a period of four years prior to the filing
her petition, or the payments from March, 2008 to March, 2012.
At the hearing, Defendant testified that, once he received the support order, he assum
that his paying of the support obligation under the court order satisfied his support obliga
entirely. In addition to this quite reasonable, yet erroneous, understanding of the Divorce G
Defendant also experienced a significant change in circumstances; specifically, Defenl
became incarcerated for a four year period during which he had no income, whatsoe
Remarkably, he remained current under his support order obligation by depleting his sav.
account and obtaining help from relatives. In consideration of the foregoing, we find it wh
reasonable that Defendant's significant change in circumstances and justifiable reliance on
support order warrant the retroactive modification of any arrearages under the settlen
agreement which may have resulted from his payments pursuant to the support order. T]
Defendant's settlement agreement support obligation will be modified to $318.00 per me
from March, 2006, through August, 2010, the term of his incarceration, in accordance with
support order obligation.
Turning to the issue of the amount of support due and owing to Plaintiff under
marriage settlement agreement, we find that Plaintiff is entitled to enforcement of that agr
in the amount of $1,555.00. The parties agreed that Defendant remained current on his
obligation throughout his incarceration, paying, for the relevant times herein, $318.00 per
from March, 2008 through August, 2010. In August, 2010, Defendant was released from
8
as a result, for the last four months of 2010, Defendant owed the difference between the agree
payment of $900.00 per month ($225 per week) and the actual monthly payment made f
$350.00, which resulted in a deficiency of $2,200.00. For the first seven months of 2011,
Defendant made monthly payments of $350.00; as a result, Defendant owed the differenc
between the agreed payment of $500.00 per month ($125.00 per week) and the $350.00 paymen
resulting in an additional deficiency of $1,050.00. For the last five months of 2011, beginning i
August, 2011, Defendant made payments of $737.00 per month; these payments were great(
than the agreed to payment of $500.00 per month, resulting in an overpayment of $1,185.0(
Beginning in January, 2012, and continuing through March, 2012, the time of the filing of th
petition, Defendant made payments of $670.00 per month; these payments were greater than th
agreed upon payment of $500.00 per month, resulting in an overpayment of $510.00. As
result, Defendant has a total deficiency under the marriage settlement agreement of $1,555.00.
The foregoing is illustrated by the following computational chart:
2008
Paid Agreed Deficiency
March $318 $318 (modified) $0.00
through
2010
2011
August $318 $318 (modified) $0.00
September $350 $900 $550
October $350 $900 $550
November $350 $900 $550
December $350 $900 $550
2010 total deficiency: $2,200
January $350 $500 $150
February $350 $500 $150
March $350 $500 $150
April $350 $500 $150
9
May $350 $500 $150
June $350 $500 $150
July $350 $500 $150
Jan. through July, 2011 total deficiency: $1,050
2012
August $737 $500 -$237
September $737 $500 -$237
October $737 $500 -$237
November $737 $500 -$237
December $737 $500 -$237
Aug. through Dec., 2011 total overpayment: -$1,185
January $670 $500 -$170
February $670 $500 -$170
March $670 $500 -$170
Jan. through Mar., 2012 total overpayment: -$510
Total deficiency: $1,555. 00
Turning to the matter of counsel fees, the well-settled "general rule within
Commonwealth is that each side is responsible for the payment of its own costs and counsel fee
absent bad faith or vexatious conduct. This so-called `American Rule' holds true `unless there i
express statutory authorization, a clear agreement of the parties or some other establishes
exception."' McMullen v. Kutz, 603 Pa. 602, 612-13, 985 A.2d 769, 775 (2009) (interna
citations omitted). Here, the parties' marriage settlement agreement clearly expressed thei
stated intent to hold a breaching party liable over to the other for the counsel fees of the innocen
parry. (See Marital Settlement Agreement, § 18) ("It is the specific agreement and intent of th,
parties that a breaching or wrongdoing party shall bear the burden and obligation of any and al
costs and expenses and counsel fees incurred by himself or herself as well as the other party ii
endeavoring to protect or enforce his or her rights under this Agreement."). Based upon the
forgoing discussion of deficient payments, Defendant has unquestionably breached the
settlement agreement, thus triggering the assessment of Plaintiff's counsel fees
Defendant.
10
At the hearing, Plaintiff offered into the record a statement bill from her attorney, wh:
calculated her counsel fees for the filing of the underlying petition at a rate of $200.00 per h<
with a stated bill time of 3.75 hours, thereby resulting in $750.00 of legal fees. (Petitioner's 1
4, admitted at Hearing, May 17, 2012). We find the award of $750.00 to be reasonable under 1
circumstances and facts of this case. As a result, Plaintiff will be awarded the additional sum
$750.00 in accordance with the terms of the settlement agreement.
Turning lastly to the matter of medical insurance, after review of the testimony a
evidence adduced at the hearing, we are satisfied that Plaintiff is not entitled to an award c
damages for Defendant's alleged failure to provide medical insurance to the parties' foi:
children. Plaintiff testified that her current husband maintains a family health insurance pla
through his federal employment which covered eleven individuals between 2008 and 2005
including the four children the subject of the instant litigation, and eight individuals from 201
through the time of the filing of the underlying petition, also including the four children. (N.1
20-21). Additionally, Plaintiff testified that the family health insurance plan currently in effec
carries the same cost regardless of the number of children covered. (N.T. 21). Plaintiff ha
therefore incurred no additional cost in providing coverage for the four children. Moreover
Plaintiff has failed to supplement the record with any evidence by which we would be able to
calculate damages which she may have suffered as a result of Defendant's failure to provide
medical health insurance to the children. It is axiomatic that a breach of contract claim require;
resultant damages as a prerequisite to recovery. Corestates Bank, N.A. v. Cutillo, 723 A.2d 1053
1058 (Pa.Super.Ct.1999).
For the foregoing reasons, the following order will be entered:
11
ORDER
AND NOW, this tdA day of July, 2012, upon consideration of Plaintiff's Petition
Enforce Marriage Settlement Agreement, Defendant's Answer and New Matter, and following
hearing, held May 17, 2012, Plaintiff's Petition is GRANTED to the extent that it is here
ordered and directed that Defendant is to pay to Plaintiff the amount of $2,305.00.
Jane Adams, Esquire
For the Plaintiff
Jennifer P. Wilson, Esquire
For the Defendant
:rlm
12
BY THE COURT,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA C')
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CATHERINE J. BABNER, Civil Action - Law MR
. x
Plaintiff Divorce
V. No. 03 - 3979 Civil Term
DAVID L. BABNER,
Defendant
MOTION FOR ,Et'WM MAT ON
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AND NOW COMES, Catherine J. Babner, now known as Catherine J. George, by and
through her attorney, Jane Adams, Esquire, and files the following Motion for Reconsideration
regarding the Order which was entered in the above-captioned matter on July 18, 2012:
1. Plaintiff/Petitioner is Catherine J. Babner, (hereinafter "Petitioner"), an adult
individual who currently lives at 316 Indian Creek Drive, Mechanicsburg, Pennsylvania, 17050.
She is represented by.Jane Adams, Esquire.
2. Respondent/Defendant is David L. Babner, (hereinafter "Respondent" ), an adult
individual and ex-husband of Petitioner, who currently lives at 3 River Lane, Millerstown,
Pennsylvania, 17062. He is represented by Jennifer P. Wilson, Esquire.
3. On July 18, 2012, this Honorable Court entered an Opinion and Order regarding
Plaintiff's Petition to Enforce marriage settlement agreement.
4. Plaintiff is requesting that this Honorable Court reconsider the calculations and
computations in the Order because:
(a) There is a math error in the Order, in that there are 4.33 weeks in a month and
not 4.0 weeks in a month and there are 52 weeks in a year.
(b) When the Court calculated the amount agreed owed under the marriage
settlement Agreement, where Husband was to pay $225 per week, the monthly
amowxt should have been $225 times 52 weeks divided by 12 or $975 per month.
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(c)When the Court calculated the amount agreed owed under the marriage
settlement agreement, through 2011 and 2012, the amount should have been
52 weeks times $125 divided by 12 months or $541.66 per month.
(d) Plaintiff is requesting that the Court reconsider its calculations
and modify the amount Ordered to be paid to Plaintiff.
5. In the July 18, 2012 Order and Opinion, the Court retroactively modified Defendant';
support obligation to $318 per month based on Defendant's incarceration and "justifiable
reliance" upon the Domestic Relations support Order.
6. The said retroactive modification was found to be effective until August 2010, which
was when Defendant was released from prison.
7. Defendant was released from prison and was entered into a half-way house where he
obtained work release in April 2010, and had income during that time.
8. Plaintiff is requesting that this Honorable Court reconsider the date of the retroactive
modification and end the modification in April 2012 rather than August 2010.
9. Pursuant to the July 18, 2012 Order and Opinion, it was found that Plaintiff was not
entitled to an award for Defendant's alleged failure to provide medical insurance since her
current husband held the health insurance and there was no additional cost for covering 4
children were the subject of this litigation, as opposed to all eight children in Plaintiffs care.
10. Plaintiff etoes have a cost to cover the children, and the marriage settlement
agreement provided Ptat "Father shall provide full medical health insurance coverage for the
children." Also, Plaintiff needed a sufficient health insurance plan which would allow her to
provide mental health and other services for her children.
11. Under Pa.R.C.P. "Support Actions", Section 1910.16-6(b)(2) it is provided that one
can "determine the cost per person by dividing the total cost of the premium by the number of
persons covered under the policy."
12. Plaintiff s husband pays an additional $112/bi-weekly to cover Plaintiff and eight
children, therefore, the cost for the four children under this Order is approximately $107 a mo
using the method in 1910.16-6(b)(2).
13. Plaintiff is requesting that she be reimbursed for the cost of the health insurance
premium to cover four of the total eight children, because the four children are the subject of
litigation and Defendant promised to pay their health inwurance cost as per the marriage
settlement agreement.
WHEREFORE, Petitioner, Catherine George, respectfully requests this Honorable
Reconsider its Order of July 18, 2012.
Date: '?-) I '?>o l
Respectfully submitted,
Jqd Adams, Esquire
D o. 79465
. South St.
Carlisle, Pa. 17013
(717) 245-8508
Attorney for Plaintiff
CERTIFICATE OF SERVICE
On this?61day of July 2012, I, Jane Adams, Esquire, hereby certify that on this date
copy of the attached document was served on the following individual, via first class mail,
postage pre-paid, as follows:
Jennifer Wilson, Esquire
227 N. High St.
P.O. Box 116
Duncannon, Pa. 1702,0
Attorney for Defendant
By:
Adams, Esquire
No. 79465
V. South St.
Carlisle, Pa. 17013
(717) 245-8508
ATTORNEY FOR PLAINTIFF