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HomeMy WebLinkAbout07-744940 JAMES P. DUNKELBERGER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW V. No.- 0'i - '71Jyq Civic Term AMANDA DUNKELBERGER, Defendant IN DIVORCE NOTICE 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 at the Cumberland County Court House, High and Hanover Streets, Carlisle. 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 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 (800) 990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. ' r JAMES P. DUNKELBERGER, Plaintiff v. AMANDA DUNKELBERGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW No. IN DIVORCE COMPLAINT UNDER SECTION 3301(c) OF THE DIVORCE CODE 1. Plaintiff is James P. Dunkelberger, who currently resides at 52 Meade Drive, Cumberland County, Carlisle, Pennsylvania, since December, 2003. 2. Defendant is Amanda Dunkelberger, who currently resides at 52 Meade Drive, Cumberland County, Carlisle, Pennsylvania, since December, 2003. 3. Plaintiff and Defendant have both been bona fide residents in the Commonwealth for at least six months immediately previous to filing of this Complaint. 4. Plaintiff and Defendant were married on June 21, 1997, in Lebanon, Pennsylvania. 5. There have been no prior actions of divorce or for annulment between the parties hereto in this or any other jurisdiction. 6. The marriage is irretrievably broken. 7. Plaintiff has been advised that counseling is available, and that Plaintiff may have the right to request that the Court require the parties to participate in counseling. 8. Plaintiff requests the Court to enter a Decree in Divorce. 0 WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter a Decree in Divorce and such other Orders as may be just and appropriate. a 2A0bJ- Date: Respectfully submitted, ROMINGER & ASSOCIATES IVVIWI Michael O. Palermo, Jr., squire Attorney for Plaintiff 155 South Hanover Street Carlisle, PA 17013 Supreme Court I.D. #93334 (717) 241-6070 • VERIFICATION I verify that the statements made in this Complaint 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: /,4/7/07 4 //* J es P. D eberger, Plaintiff 1 t JAMES P. DUNKELBERGER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW V. No. AMANDA DUNKELBERGER, Defendant IN DIVORCE CERTIFICATE OF SERVICE I, Michael O. Palermo, Jr., Esquire, do hereby certify that I served a copy of the Divorce Complaint upon the following by depositing same in the United States certified mail, return receipt, restricted delivery, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Amanda Dunkelberger 52 Meade Drive Carlisle, PA 17013 01 ty-? Dated: ao' Id ? - Respectfully submitted, ROMINGER & ASSOCIATES Michael O. Palermo, Jr., s uire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 93334 Attorney for Plaintiff O 00 pit c°, , _ r u._ JAMES P. DUNKELBERGER : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW AMANDA DUNKELBERGER : NO. 07-7449 CIVIL TERM Defendant : IN DIVORCE AFFIDAVIT OF CONSENT 1. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on December 12, 2007. 2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90) days have elapsed from the date of filing 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 are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unworn falsification to authorities. Date: Y- Zv -O Q FILED-0v -H E .?? ti.J OF THE' ^-C 'L`NIOYTARY 2009 APR 22 PH 3: 14 CUM Pc r, JAMES P. DUNKELBERGER Plaintiff V. AMANDA DUNKELBERGER Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 07-7449 CIVIL TERM IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER § 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. 3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the Prothonotary. 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: Y-20-0? P. RUEC,"'IFF=iiE OF THE: P (THCINOTARY 2009 APR 22 P 3. I CUM, rU tf ; i r ? t;,Fi JAMES P. DUNKELBERGER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07-7449 CIVIL TERM AMANDA DUNKELBERGER, Defendant CIVIL ACTION - DIVORCE AFFIDAVIT OF CONSENT 1. A complaint in Divorce under §3301(c) of the Divorce Code was fled on December 12, 2007. 2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90) 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 are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. loq JWI Ea e *Aan Dunkelberger Defendant 2009 APR 24 1"il 12: 0 y C' ,.y ,, . JAMES P. DUNKELBERGER, Plaintiff V. AMANDA DUNKELBERGER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-7449 CIVIL TERM CIVIL ACTION - DIVORCE ?. C t- WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER SECTION 3301W 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. 3. 1 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 made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. A4 Date AmVna un kelberger Defendant or • JAMES P. DUNKELBERGER : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW AMANDA DUNKELBERGER : NO. 07-7449 CIVIL TERM Defendant : IN DIVORCE MARITAL SETTLEMENT AGREEMENT AGREEMENT, made this day ofjPb- 2009, between James P. Dunkelberger (hereinafter referred to as "HUSBAND") and Amanda Dunkelberger (hereinafter referred to as "WIFE"). WITNESSETH: MARRIAGE The parties hereto are HUSBAND and WIFE, having been married on June 21, 1997, in Lebanon, Pennsylvania. There were two (2) children born of this marriage: Paul B. Dunkelberger, DOB: 8/9/2000 Ty R. Dunkelberger, DOB: 1/5/2005 WHEREAS, after approximately eleven (11) years of marriage, diverse unhappy differences, disputes and difficulties have arisen between the parties and it is the intention of HUSBAND and WIFE to live separate and apart for the rest of their natural lives, and the parties hereto desire to settle fully and finally their respective financial and property rights and obligations as between each other, including without limitation: (1) the settling of all matters between them relating to the ownership of real and personal property; (2) the settling of all matters between them relating to the past, present and future support and/or maintenance of WIFE by HUSBAND; (3) the implementation of custody arrangements for the minor children of the parties for the immediate future; and (4) in general, the settling of any and all claims and possible claims by one against the other or against their respective estates. NOW, THEREFORE, in consideration of the premises and of the mutual premises, covenants and undertakings hereinafter set forth and for other good and valuable consideration, receipt of which is hereby acknowledged by each of the parties hereto, HUSBAND and WIFE, each intending to be legally bound hereby covenant and agree as follows: 1. INTERFERENCE: Each party shall be free from interference, authority, and contact by the other, as fully as though he or she were single and unmarried, except as may be necessary to carry out the provisions of this Agreement. Neither party shall molest the other or attempt to endeavor to molest the other, nor compel the other to cohabitate with the other, or in any way harass or malign the other, nor in any way interfere with the peaceful existence, separate and apart from the other. 2. AGREEMENT NOT A BAR TO DIVORCE PROCEEDINGS: This Agreement shall not affect or bar the right of HUSBAND or WIFE to a divorce on lawful grounds or to any defense as may be available to either party. This Agreement is not intended to condone and shall not be deemed to be a condonation on the part of either party hereto of any act or acts on the part of the other party which have occasioned the disputes or unhappy differences. 3. SUBSEQUENT 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 that the execution and delivery of this Agreement is not predicated upon nor made subject to any agreement for the institution, prosecution, defense or for the non- prosecution or non-defense of any action for divorce; provided, however, that nothing contained in this Agreement shall prevent or preclude either of the parties hereto from commencing, instituting or prosecuting any action or actions for divorce, either absolute or otherwise, upon just, legal and proper grounds, nor to prevent either party from defending any such action which may, has been, or shall be instituted by the other party, or from making any just or proper defense thereto. The parties further agree that they will each sign the Affidavit of Consent and Waiver of Notice after the required ninety (90) day time period has elapsed when such a divorce procedure is instituted. It is anticipated that the ninety (90) day waiting period will expire on or about March 13, 2008. 4. INCORPORATION OF DIVORCE DECREE: It is further agreed, covenanted and stipulated that this Agreement or the essential parts hereof, shall be incorporated in any decree hereinafter entered by any court of competent jurisdiction in any divorce proceedings that have been or may be instituted by the parties for the purpose of enforcing the contractual obligations of the parties. This agreement shall not be merged in any such decree but shall in all respects survive the same and be forever binding and conclusive upon the parties. 5. EFFECTIVE DATE: The effective date of this Agreement shall be the date of execution or execution date, defined as the date upon which it is executed by the parties if they have each executed this Agreement on the same date. Otherwise, the date of execution or execution date of this Agreement shall be defined as the date of execution by the party last executing this Agreement. 6. DISTRIBUTION DATES: The transfer of property, funds and/or documents provided for herein, shall only take place on the distribution date, which shall be defined as the effective date of this Agreement, unless otherwise provided for herein, including any spousal support and/or alimony payments. 7. MUTUAL RELEASE: HUSBAND and WIFE each do hereby mutually remise, release, quit-claim and forever discharge the other and the estate of such other, for all time to come, and for all purposes whatsoever, of and from any and all rights, title and interest, or claims in or against the property (including income and gain from property hereafter accruing) of the other or against the estate of such other, of whatever nature and wheresoever situated, which he or she now has or at any time hereafter may have against the other, the estate of such other or any part hereof, whether arising out of any former acts, contracts, engagements or liabilities of such other or by way of dower or courtesy, or claims in the nature of dower or courtesy or widow's or widower's rights, family exemption or similar allowance, or under the intestate laws, or the right to take against the spouse's will; or the right to treat a lifetime conveyance by the other as a testamentary, or all other rights of a surviving spouse to participate in a deceased spouse's estate, whether arising under the laws of (a) Pennsylvania, (b) any State, Commonwealth or territory of the United States, or (c) any country or any rights which either party may have or at any time hereafter shall have for past, present or future support or maintenance, alimony, alimony pendente lite, counsel fees, division of property, costs or expenses, whether arising as a result of the marital relations or otherwise, except, all rights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any provisions thereof. It is the intention of HUSBAND and WIFE to give each other by the execution of this Agreement a full, complete and general release with respect to any and all property of any kind or nature, real, personal or mixed, which the other now owns or may hereafter acquire, except and only except all rights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any provision thereof. It is further agreed that this Agreement shall be and constitute a full and final resolution of any and all claims which each of the parties may have against the other for equitable division of property, alimony, counsel fees and expenses, alimony pendente lite or any other claims pursuant to the Pennsylvania Divorce Code or the divorce laws of any other jurisdiction. 8. REPRESENTATION BY COUNSEL: The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel, Thomas M. Clark, Esquire, for Wife, and Michael O. Palermo, Jr., Esquire, for Husband. Each party acknowledges that she or he has received independent legal advice from counsel of her or his selection and that each fully understands the facts and has been fully informed as to her or his legal rights and obligations and each party acknowledges and accepts that this Agreement is, in the circumstances, fair and equitable and that it is being entered into freely and voluntarily, after having received such advice and with such knowledge and 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. 9. WARRANTY AS TO EXISTING OBLIGATIONS: 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 or obligations of every kind which may have heretofore been incurred by them, including those for necessities, except for the obligations arising out of this Agreement. 10. WARRANTY AS TO FUTURE OBLIGATIONS: HUSBAND and WIFE covenant, warrant, represent and agree that, with the exception of obligations set forth in this Agreement, neither of them shall hereafter incur any liability whatsoever for which the estate of the other may be liable. Each party shall indemnify and hold harmless the other party from and against any and all debts, charges and liabilities incurred by the other after the execution date of this Agreement, except as may be otherwise specifically provided for by the terms of this Agreement. 11. PERSONAL PROPERTY: Except as otherwise provided herein, HUSBAND and WIFE acknowledge that they have heretofore divided between them, at the time of their separation, all their personal property to their mutual satisfaction, except as otherwise stated. Henceforth, each of them shall own, have and enjoy independently of any claim or right of the other all items of personal property of every kind, now and hereafter owned, or held by him or her, with full power to dispose of same as fully and effectively in all respects and for all purposes as if he or she were unmarried. The property to be transferred is as follows: HUSBAND will assume property of the vehicles owned by the parties to include the outstanding balances. WIFE shall execute any and all documents necessary to effectuate the transfer of the vehicles into HUSBAND's name within thirty (30) days from the execution of the within Agreement. All the furniture from the marital residence has been divided by the parties to the satisfaction of both parties. All items that were the joint property of the parties shall become the property of HUSBAND except those items of personalty including WIFE's personal effects which shall become the sole property of WIFE with the right to remove same from the marital premises within thirty (30) days of the execution of the within Agreement. 12. REAL PROPERTY: WIFE has, by prior instrument, conveyed, transferred and granted to HUSBAND her right, title and interest in the real estate situate at 52 MEADE DRIVE, CARLISLE, PENNSYLVANIA 17013. HUSBAND hereby agrees that within six (6) months of the date of this Agreement, HUSBAND shall refinance the mortgage, currently in the joint names of the parties, into his own name. From the date of the Agreement, HUSBAND agrees to assume as his sole obligation any and all mortgage payments, taxes, claims, damages or other expenses incurred in connection with said premises, and HUSBAND further covenants and agrees to hold WIFE harmless from any such liability or obligation. 13. HUSBAND'S LOWES' 40IM: HUSBAND is the owner of a 401(k) through his employment with Lowes. The 401(k) had a balance of $74,986.34 as of April 2, 2009. The total amount payable to WIFE as contemplated by this Agreement from HUSBAND'S Lowes' 401(k) account has been determined to be 100% [one-hundred- percent] of the account as of the effective date (as defined in Paragraph 5 of this Agreement) of this Agreement adjusted for earnings/losses from that date to the date of transfer to WIFE. The 401(k) will be distributed as follows: A. HUSBAND shall transfer the entire amount from his Lowes' 401(k) Retirement Account to WIFE by QDRO. Within ten (10) days following the signing of the Marital Settlement Agreement, HUSBAND shall have his counsel submit the QDRO to WIFE for approval and then to the appropriate fund manager for approval prior to submitting the same to the Cumberland County Court of Common Pleas. Each party further agrees to execute any and all documents to give effect to this paragraph. 13. LOWES' STOCK: HUSBAND is the owner of Lowes' Stock. HUSBAND'S stock is maintained through a 401(k) managed by ADP RETIREMENT SERVICES, 71 HANOVER ROAD, MS #580, FLORHAM PARK, NEW JERSEY, 07932. HUSBAND currently possesses four' (4) separate classes of stock in Lowes Corporation. Referred to by symbol: LOW on the New York Stock Exchange ("NYSE"). HUSBAND will transfer Four-Hundred-Fifty (450) shares of Class "A" stock in Lowes' Corporation to WIFE within ten (10) days of WIFE's request. Class "A" shares are valued at $29.17 as a payback price and before a profit can be made the purchase price must be paid back at $29.17, any amount in excess of the purchase price will be profit to WIFE. Class "B" shares, to which WIFE will be transferred One-Thousand-One- ' The 4" class of stock [class D] was issued post-separation and is not included in the marital property and thus excluded from this Marital Property Settlement. Hundred (1,110) shares, have a payback price of $34.16. WIFE will be granted three- hundred-twenty-five (325) shares Class "C" shares which are granted free and clear to WIFE however they will not fully vest until March 10, 2010 at which time WIFE may cash in the same free and clear. The same payback rules apply before a profit can be realized on class "B" shares that apply to Class "A" shares. It is noted that as of close of business March 11, 2009, LOW stock was trading at $15.10 on the NYSE. Said STOCK TRANSFERS will be accomplished through a separate Qualified Domestic Relations Order, (hereinafter "QDRO"), filed with the Domestic Relations Section of the Cumberland County Court of Common Pleas. HUSBAND shall have his counsel submit the QDRO to WIFE for approval and then to the appropriate fund manager for approval prior to submitting the same to the Cumberland County Court of Common Pleas. 14. BACK TAXES: HUSBAND and WIFE agree to file separate tax returns beginning with the tax year 2009. With regard to tax return prior to 2009, it is understood that the parties owe back taxes to the Federal Government by and through the Internal Revenue Service. As a condition predicated on the signing of this marital property settlement, HUSBAND hereby agrees to indemnify and hold WIFE harmless from said liability and will satisfy all back taxes on his accord. That is to say that such tax, interest, penalty and expenses shall be paid solely and entirely HUSBAND. 15. APPLICABILITY OF TAX LAW TO PROPERTY TRANSFERS: The parties hereby agree and express their intent that any transfer of property pursuant to this Agreement shall be within the scope and applicability of the Deficit Reduction Act of 1984 (hereinafter the Act), specifically, the provisions of said Act pertaining to the transfers of property between spouses and former spouses. The parties agree to sign and cause to be filed any elections or other documents required by the Internal Revenue Service to render the Act applicable to the transfers set forth in this Agreement without recognition of gain on such transfer and subject to the carry-over basis provisions of said Act. 16. CHILD CUSTODY: Leral Custody: The parties shall share legal custody of the minor children. Joint legal custody means the right of both parents to control and share in making decisions of importance in the life of their children, including educational, medical and religious decisions. Both parents shall be entitled to equal access to the children's school, medical, dental and other important records. As soon as practicable after receipt by a party, copies of the children's school schedules, special events notifications, report cards and similar notices shall be provided to the other party. Each party shall notify the other of any medical, dental, optical and other appointments of the child with health care providers sufficiently in advance thereof so that the other party can attend. Notwithstanding that both parents share legal custody, non-major decisions involving the children's day to day living shall be made by the parent then having custody, consistent with the other provisions of this Agreement. Physical Custody: Father and Mother shall share physical custody of the minor children. Mother shall have physical custody every other weekend The holiday schedules shall supersede the regular custody schedule where applicable. Relocation: Neither parent shall permanently relocate if the relocation would necessitate a change in the visitation schedule or if the relocation would result in a change of school for the children or exceed a sixty (60) mile radius without a minimum notice of one-hundred twenty (120) days to the other parent. The one-hundred twenty (120) days notice is designed to afford the parents an opportunity to renegotiate the custodial arrangements or to have the matter listed for a Court hearing. For the children's welfare, neither parent should consider moving very far from the other until the children have reached adulthood. 17. WAIVER OF ALIMONY: HUSBAND and WIFE recognize and acknowledge that the foregoing provisions for their individual benefit are satisfactory with regard to support and maintenance, past, present and future. The parties release and discharge the other absolutely and forever for the rest of their lives for all claims and demands, past, present or future, for alimony, alimony pendente lite or for any provisions for support and maintenance. The parties further acknowledge that in consideration of the transfers made herein, each completely waives and relinquishes any and all claims and/or demands they may now have or hereafter have against the other for alimony, alimony pendente lite, spousal support, counsel fees and court costs. 18. AFTER-ACQUIRED PROPERTY: Each of the parties shall hereafter own and enjoy, independently of any claim or right of the other, all items of property, be they real, personal or mixed, tangible or intangible, which are hereafter acquired by him or her, with full power in him or her to dispose of the same as fully and effectively, in all respects and for all purposes as though he or she were unmarried. 19. EFFECT OF DIVORCE DECREE: The parties agree that, except as otherwise specifically provided herein, this Agreement shall continue in full force and effect after such time as a final Decree in Divorce may be entered with respect to the parties. 20. BREACH: If either party breaches any provision of this Agreement, the other party shall have the right, at his or her election to sue for damages for such breach or seek such other remedies or relief as may be available to him or her, and the party breaching this contract shall be responsible for payment of reasonable legal fees and costs incurred by the other in enforcing their rights under this Agreement. 21. WAIVER OF CLAIMS: 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 shall now have or hereafter acquire, under the present and future laws of any jurisdiction, to share in the property or the estate of the other as a result of the marital relationship, including without limitation, dower, courtesy, statutory allowance, widow's allowance, right to take in intestacy, right to take against the Will of the other, and the right to act as administrator or executor of the other=s estate, and 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 such interests, rights and claims. 22. ENTIRE AGREEMENT: This Agreement contains the entire understanding of the parties and there are no representations, warranties, covenants or from Friday at 3:00 p.m. to Sunday at 6:00 p.m. Additionally, Mother currently has a work schedule that changes from week-to-week. Mother shall contact Father no later than Sunday of each week and advise him of up to three (3) days each week that she will be available to care for the children and wishes to exercise rights of custody. These days during the week shall be overnights. Unless, agreed on otherwise by the parties, the exchange time will be from 3:00 p.m. until 9:00 a.m. the following day. In the event that Father has plans scheduled ahead of time for a particular day during the week, he will give Mother at least seven (7) days notice that he and the children will not be available on a particular day and the Mother will not be able to exercise her rights on that particular day. It is anticipated that this shall not be very frequent, and should never be more than four (4) days in any give month. Holidays: The parties agree to share custody on holidays as follows: The holidays of New Year's Day, Easter, Memorial Day, Fourth of July, and Labor Day beginning with Father having custody of the children on New Year's Day 2009. The holidays shall commence at 9:00 a.m. on the day of the holiday, and shall end at 6:00 p.m. on the day immediately after the holiday. In even numbered years, Mother shall have the children from noon on December 21St until noon on Christmas Day. Father shall have the children from noon on Christmas Day until noon on December 29th. In odd numbered years, the schedule shall be reversed. undertakings other than those expressly set forth herein. 23. AGREEMENT BINDING ON HEIRS: This Agreement shall be binding on and shall inure to the benefits of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 24. ADDITIONAL INSTRUMENTS: Each of the parties shall from time to time, at the request of the other, execute, acknowledge and deliver to the other any and all further instruments that may be reasonably required to give full force and effect to the provisions of this Agreement. 25. VOID CLAUSES: If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken from this Agreement and in all other respects this Agreement shall be valid and continue in full force, effect and operation. 26. INDEPENDENT SEPARATE COVENANTS: It is specifically understood and agreed by and between the parties hereto that each paragraph hereof shall be deemed to be separate and independent Agreement. 27. FINANCIAL DISCLOSURE: The parties confirm that they have relied on the completeness and substantial accuracy of the financial disclosure of the other as an inducement to the execution of this Agreement. The parties acknowledge that there has been no formal discovery conducted in their pending divorce action and that neither party has filed an inventory and appraisement as required by Section 3505(b) of the Pennsylvania Divorce Code. Notwithstanding the foregoing, the rights of either party to pursue a claim for equitable distribution, pursuant to the Pennsylvania Divorce Code, of any interest owned by the other party in an asset of any nature at any time prior to the date of execution of this Agreement that was not disclosed to the other party or his or her counsel prior to the date of the within Agreement is expressly reserved. In the event that either party, at any time hereafter, discovers such an undisclosed asset, the party shall have the right to petition the Court of Common Pleas of Cumberland County to make equitable distribution of said asset. The non-disclosing party shall be responsible for payment of counsel fees, costs or expenses incurred by the other party in seeking equitable distribution of said asset. Notwithstanding the foregoing this Agreement shall in all other respects remain in full force and effect. 28. MODIFICATION AND WAIVER: A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent defaults of the same or similar nature. 29. DESCRIPTIVE HEADINGS: The descriptive headings used herein are for convenience only. They shall have no affect whatsoever in determining the rights or obligations of the parties. 30. APPLICABLE LAW: This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania and more specifically under the Divorce Code of 1980 and any amendments thereto. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the date and year first above written. Thomas M. Clark, Esquire t= OF i;W-JPy 2CH JAMES P. DUNKELBERGER : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW AMANDA DUNKELBERGER : NO. 07-7449 CIVIL TERM Defendant : IN DIVORCE PRAECIPE TO TRANSMIT RECORD TO THE PROTHONOTARY: Transmit the record, together with the following information, to the Court for entry of a divorce decree: 1. Grounds for divorce: irretrievable breakdown under § 3301(c) of the Divorce Code. 2. Date and manner of service of the Complaint: Certified Mail/Return Receipt/Restricted Delivery. December 14, 2007. Attached as Fw+Abft-A". 3. Date of execution of the affidavit of consent required by § 3301(c) of The Divorce Code: by the Plaintiff April 20, 2009; by the Defendant April 21, 2009. 4. Related claims pending: 5. Date Plaintiff's Waiver of Notice in §3301(c) Divorce was filed with the Prothonotary: April 22, 2009. Date Defendant's Waiver of Notice in §3301(c) Divorce was filed with the Prothonotary: April 24, 2009. /7 Date: *41U , 2009 Michael O. Palermo., Esquire 155 South Hanover Sleet Carlisle, PA 17013 (717) 241-6070 Supreme Court ID No. 93334 JAMES P. DUNKELBERGER : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW AMANDA DUNKELBERGER : NO. 07-7449 CIVIL TERM Defendant : IN DIVORCE PROOF OF SERVICE ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can retum the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: 7 0)3 A X (Prtn* Name) 1 _ ,fCQ Data of Is delivery address different from item 1? U If YES, enter delivery address below: ? DEC Z ? 2007 3. Service Type )?C Nled Mall ? Express Mail a Registered A Return Receipt for Mercherx1ae ? Insured Mail ? C.O.D. 4. 2. ArWe Nurnber (farmer fkom smAlae Adn 7006 010 0 0007 1050 6139 Ps f=orm :3811, Febni"=4 Domestic Rerun Receipt 102595-M-WiMO _.' r T 2009 hi'A I' 14 F 2 t MAY 1 4 2099c/4- LA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYVLANIA DOMESTIC RELATIONS SECTION James P. Dunkelberger Plaintiff VS. Amanda Dunkelberger Defendant No: 07-7449 Qualified Domestic Relations Order IN DIVORCE WHEREAS, James A. Dunkelberger and Amanda Dunkelberger, were married in Lebanon, Lebanon County, Pennsylvania on June 21, 1997. WHEREAS, the parties have separated and have obtained a decree of divorce; WHEREAS, pursuant to the dissolution of marriage, the Plan Participant and the Alternate Payee have entered into a Consent Order which provides for a division of the marital estate and all other property, real and personal, tangible and intangible, including their respective interests in the Lowe's 401(k) Plan (hereinafter the "Plan"); WHEREAS, the Plan Participant and the Alternate Payee wish to settle all issues relating to their interests in the Plan; Now THEREFORE, in consideration of the foregoing premises and the mutual promises hereunder specified, the parties do agree, and the Court does order, as follows: SECTION 1. The parties and the Court intend this Order to constitute a "qualified domestic relations order" (a "QDRO") as defined in Section 414(p)(1) of the Internal Revenue Code of 1986, as amended (the "Code"), and Section 206(d)(3)(B) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). SECTION 2. This Order applies to the Lowe's 401(k) Plan. SECTION 3. Amanda Dunkelberger is hereby designated as the "Alternate Payee" as that term is defined in Code Section 414(p)(8) and ERISA Section 206(d)(3)(K). James A. Dunkelberger is hereby designated as the "Plan Participant." The names, Social Security numbers, dates of birth, and mailing addresses of the Plan Participant and the Alternate Payee are: Page 1 of 4 The Plan Participant Name: James A. Dunkelbereer SSN: 189-46-6416 DOB: 7/15/1970 Mailing Address: 52 Meade Drive, Carlisle, Pennsylvania 17013 The Alternate Pavee Name: Amanda Dunkelberger SSN: 196-56-5618 DOB: 7/14/1976 Mailing Address: 39 Mel Ron Court, Carlisle, Pennsylvania 17015 The Alternate Payee and the Plan Participant shall keep the Plan Administrator informed of their current addresses. Any notice of a change of address should be made in writing and mailed to the Plan Administrator at the following address: Plan Administrator (HR) Lowe's 401(k) Plan Attn: Peggy Broyhill (PRN6) Lowe's Companies, Inc. P.O. Box 1111 North Wilkesboro, NC 28656 (or such other address as the Plan Administrator may specify in a written notice to the Alternate Payee and the Plan Participant). SECTION 4. From the benefits which otherwise would be payable to the Plan Participant under the Plan, the Plan Participant assigns to the Alternate Payee and the Alternate Payee shall receive from the Plan a benefit equal to One-hundred percent (100%) of the Plan Participant's account balance under the Plan as of April 23, 2009 adjusted for earnings/losses from that date to the date of transfer to the Alternate Payee. However, that in no event shall the Alternate Payee be entitled to an amount under this Order that exceeds the value of the Plan Participant's account in the Plan as of the date of transfer to the Alternate Payee. This aercentaee shall be taken pro-rata from the Plan Participant's subaccounts in the Plan, and pro-rata from the various investment funds in which each such subaccount is invested. Page 2 of 4 SECTION 5. The Plan Administrator will establish a separate account for the Alternate Payee under the Plan. The Alternate Payee will direct the Plan Administrator as to any disbursements from that account. The Plan Participant will retain the remainder of his account in the Plan free and clear of any further claim by the Alternate Payee. SECTION 6. The Plan Participant and the Alternate Payee are ORDERED to report any distributions that either of them may receive on their respective federal income tax returns for the year received. The Plan Administrator or Trustee, as the case may be, is authorized to issue a Form 1099, and Form W-2P, or other appropriate Internal Revenue Service form, upon any payment or distribution made to either party. SECTION 7. If the Alternate Payee dies before the total amount of her benefits under the Plan has been distributed to her, any remaining amount will be paid to Paul Bryce Dunkelberger and Ty Robert Dunkelberger. In this regard, the Alternate Payee may complete a Beneficiary Designation Form from the Plan Administrator and may request a new form at any time in the future if a change in beneficiary is desired. SECTION 8. This Order does not require: (i) the Plan to provide any type or form of benefit, or any option, not otherwise provided under the Plan, except as permitted by Code Section 414(p) and ERISA Section 206(d); (ii) the Plan to provide increased benefits; or (iii) the payment of any benefits to the Alternate Payee which are required to be paid to another alternate payee under another order previously determined to be a QDRO. SECTION 9. This Order relates to the period that starts with the execution of this Order by the Court, and ends when all benefits assigned to the Alternate Payee hereunder have been distributed, in full, from the Plan, in conformity with the provisions hereof. This Order has been issued pursuant to state domestic relations law to enforce marital property rights of the Alternate Payee who is or was the spouse of the Plan Participant. SECTION 10. Since it is intended that this Order will qualify as a QDRO, the provisions hereof shall be administered and interpreted in conformity with ERISA and the Code. The Court shall retain jurisdiction to amend this Order for purposes of establishing or maintaining its qualification as a QDRO under ERISA and the Code, and either party may apply to the Court for such an amendment. Page 3 of 4 SECTION 11. (a) In case of a conflict between terms of the QDRO and the terms of the Plan, the terms of the Plan shall prevail. (b) The Alternate Payee shall be a "beneficiary" of the Plan for purposes of ERISA. (c) All notices to be given or documents to be sent to the Plan Administrator shall be addressed in accordance with Section 3 and shall not be deemed given to the Plan unless sent certified mail, return receipt requested. (d) The parties shall hold the Plan (and its sponsor and fiduciaries) harmless from any liabilities which arise from this QDRO, and the use of this form Order, including all reasonable attorney's fees which may be incurred in connection with any claims which are asserted because the Plan honors this QDRO. (e) The Plan and its sponsor and fiduciaries shall not be responsible for any attorney's fees incurred by the Plan Participant or the Alternate Payee in connection with obtaining or enforcing this QDRO. SECTION 12. The Plan Participant shall be obligated to furnish a filed, certified copy of this Order with original stamp and seal to the Plan Administrator. The Plan Participant shall inform the Plan Administrator of the parties' intention that this Order constitutes a "qualified domestic relations order." If, within thirty (30) days of the Court's entering of this Order, the Alternate Payee does not receive notice (at the address specified in Section 3) from the Plan Administrator that the Plan Administrator has received a copy of this Order, the Alternate Payee, her discretion, may fulfill the Plan Participant's notification obligation set forth in this Section 12. SO STIPULATED Sign ur of the )amep95unkelberger, "Plan Participant Signature of Amanda Dunkelberger as "Alternate Payee" Date: ,I-// 'OF Date: Z IT IS SO ORDERED this the If- day of M &ft 2009. Judge Page 4 of 4 0. 9Z :81 IV 81 kvw 60oz - 461# O"d :'?i ?O JAMES P. DUNKELBERGER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. AMANDA DUNKELBERGER NO. 07-7449 DIVORCE DECREE AND NOW, i9 ?.oa , it is ordered and decreed that JAMES P. DUNKELBERGER , plaintiff, and AMANDA DUNKELBERGER , defendant, are divorced from the bonds of matrimony. Any existing spousal support order shall hereafter be deemed an order for alimony pendente cite if any economic claims remain pending. The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered. Those claims are as follows: (If no claims remain indicate "None.") A Marital Settlement Agreement is incorporated into but not merged with the Divorce Decree. By the Court, 7 Atte : I J. othonotary .--? S. -1.05' i ?