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HomeMy WebLinkAbout07-7481NANCY CAPSTICK, IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. b7 - '7y 81 CiuiI Term DANIEL F. CAPSTICK, JR., DEFENDANT CIVIL ACTION -DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary, Cumberland County Courthouse, Carlisle, Pennsylvania, 17013. 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 (717) 249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumbedand 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 of business before the Court. SMIGEL, ANDERSON & SACKS, LLP Ann V. Levin, Esquire ID #70259 4431 North Front Street, 3rd Fir. Harrisburg, PA 17110-1778 (717) 234-2401 alevinna,sasllp.com Attorney for Plaintiff NANCY CAPSTICK, PLAINTIFF V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. DANIEL F. CAPSTICK, JR., DEFENDANT CIVIL ACTION - DIVORCE COMPLAINT UNDER SECTION 3301(c) OR 3301(d) OF THE DIVORCE CODE TO THE HONORABLE, THE JUDGES OF SAID COURT: AND NOW, comes Plaintiff, Nancy Capstick, by and through her attorneys, SMIGEL, ANDERSON & SACKS, LLP, and represents as follows: COUNTI DIVORCE UNDER SECTION 3301(c) OR 3301(d) OF THE DIVORCE CODE 1. Plaintiff is Nancy Capstick, who currently resides at 1477 Hillcrest Court, Camp Hill, Cumberland County, Pennsylvania 17011 and has resided there since on or about September 1, 2007. 2. Plaintiff s Social Security No. is 002-40-0941. 3. Defendant is Daniel F. Capstick, Jr., who currently resides at 1112 Floribunda Lane, Mechanicsburg, Cumberland County, Pennsylvania 17055 and has resided there since on or about 1999. 4. Defendant's Social Security No. is 429-04-0747. 5. Both Plaintiff and Defendant have been bona fide residents in the Commonwealth. for at least six (6) months immediately previous to the filing of this Complaint. 6. The Plaintiff and Defendant were married on February 4, 1984, at Lincoln, Nebraska. 7. There have been no prior actions of divorce or for annulment between the parties. 8. The marriage is irretrievably broken. 9. 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. 10. Plaintiff avers that there are no children of the parties under the age of 18. WHEREFORE, Plaintiff requests the court to enter a decree of divorce. SMIGEL, ANDERSON & SACKS, LLP Date: 12- 6-0 By: nn . Levin, Esquire I.D. #70259 4431 North Front Street, 3`d Flr. Harrisburg, PA 17110-1778 (717) 234-2401 Attorney for Plaintiff VERIFICATION I, Nancy Capstick, verify that the statements contained in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date. -? Nancy Caps Plaint' 9.5 " - t - L -rl 00 00 D _ r; '' SMICEL, ANDERSON & SACKS, LLP Ann V. Levin, Esquire ID #70259 4431 North Front Street, 3r° Mr. Harrisburg, PA 17110-1778 (717) 234-2401 alevin n@wsas lip. corn Attorney for Plaintiff NANCY CAPSTICK, PLAINTIFF V. DANIEL F. CAPSTICK, JR., DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-7481 CIVIL TERM CIVIL ACTION - DIVORCE ACCEPTANCE OF SERVICE I, Timothy J. Colgan, Esquire, counsel for Defendant, accept service of the Complaint Under Section 3301(c) or 3301(d) of the Divorce Code on behalf of Defendant and certify that I am authorized to do so. Date: &j9 Timothy g squire Wiley, Lenox, Colgan & Marzzacco, P.C. 130 West Church Street, Suite 100 Dillsburg, PA 17019 (71' i) 4.)2-9666 n c? 4 rV O rrl c-) 1V CO 'Z7 r 'a 1 C`3 171 NANCY CAPSTICK, Plaintiff VS. DANIEL F. CAPSTICK, JR., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-7481 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE AFFIDAVIT OF CONSENT 1. A complaint in Divorce under §3301(c) of the Divorce Code was filed on December 13, 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. Ialay/ o 8, - A) - - Date Nancy CZ ck Plaintiff NANCY CAPSTICK, Plaintiff VS DANIEL F. CAPSTICK, JR., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 07-7481 CIVIL TERM : CIVIL ACTION - LAW : IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REOUEST ENTRY OF A 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. 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 made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Q -? Date Nancy Ca tic Plaintiff (" s'a,`,. A.:i_i NANCY CAPSTICK, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. . NO. 07-7481 CIVIL TERM DANIEL F. CAPSTICK, JR., : CIVIL ACTION - LAW Defendant : IN DIVORCE AFFIDAVIT OF CONSENT 1. A complaint in Divorce under §3301(c) of the Divorce Code was filed on December 13, 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. I ;L./zy /c, S, Date Daniel F. Capstick, Jr. Defendant NANCY CAPSTICK, Plaintiff VS. DANIEL F. CAPSTICK, JR., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-7481 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A 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. 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 made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. %2/zv/o&- Date Daniel F. Capstick, Jr. Defendant ,.. 'z F--"-.' ? _ ._ +: ?? :?: NANCY CAPSTICK, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. : NO. 07-7481 CIVIL TERM DANIEL F. CAPSTICK, JR., : CIVIL ACTION - LAW 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: Grounds for Divorce: Irretrievable breakdown under Section 3301(c). 2. Date and manner of service of the Complaint: Defendant's Counsel Accented Service of the Complaint on December 20, 2007, said Acceptance of Service was filed with this Honorable Court on December 28, 2007. 3. Complete either Paragraph (a) or (b): (a) Date of execution of the Affidavit of Consent required by Section 3301(c) of the Divorce Code: By Plaintiff. December 24, 2008 ; By Defendant: December 24, 2008 (b) (1) Date of execution of the Affidavit required by Section 3301(d) of the Divorce Code: N/A (2) Date of filing and service of the Plaintiff's Affidavit upon the Respondent: N/A. 4. Related claims pending: All related claims were settled by a Marital Settlement Agreement dated December 24, 2008 and filed with the Court on December 29, 2008 5. Complete either (a) or (b): (a) Date and manner of service of the Notice of Intention to File Praecipe to Transmit Record, a copy of which is attached: (b) Date Plaintiffs Waiver of Notice in Section 3301(c) Divorce was filed with the Prothonotary: simultaneous with the Praecipe to Transmit the Record; Date Defendant's Waiver of Notice in Section 3301(c) Divorce was filed with the Prothonotary: simultaneously with the Praecipe to Transmit the Record. Respectfully Submitted, COLGAN MARZZACCO, LLC By. Timothy J. an,1?squire Attorney ID #77944 130 West Church Street Suite 100 Dillsburg, PA 17019 Tel: (717) 502-5000 Fax: (717) 502-5050 Dated: Id -"29-bb' MARRIAGE SETTLEMENT AGREEMENT AGREEMENT MADE this a ? 4' day of Qe cc,4,4,e,, , 2008, by and between Nancy Capstick ("Nancy") - A N D - Daniel F. Capstick, Jr. ("Dan"), at Harrisburg, Pennsylvania. WHEREAS, the parties hereto are husband and wife having been married on February 4, 1984, at Lincoln, Nebraska; WHEREAS, the parties have two (2) children; said children being: Sara Margarette Capstick, age 22 and Justin Delaney Capstick, age 20; WHEREAS, diverse unhappy differences, disputes and difficulties have arisen between the parties and it is the intention of Nancy and Dan to live separate and apart for the rest of their natural lives, and the parties desire to settle fully and finally their respective financial and property rights and obligations as between each other including, without limitation by specification: settling of all matters between them relating to the ownership and equitable distribution of real and personal property; settling of all matters between them relating to the past, present and future support, alimony and/or maintenance of Wife by Husband or of Husband by Wife; and in general, the settling of any and all claims and possible claims by one against the other or against their respective estates. WHEREAS, the provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel. Nancy has employed and had the benefit of counsel of Ann V. Levin, Esquire, as her attorney. Dan has employed and had the benefit of counsel of Timothy Colgan, Esquire, as his attorney. NOW, THEREFORE, in consideration of the foregoing premises and of the mutual promises, covenants and undertakings hereinafter set forth and for other good and valuable consideration, receipt of which is hereby acknowledged by each of the parties, Nancy and Dan, each intending to be legally bound hereby, covenant and agree as follows: 1. Divorce and Separation. The parties agree to the entry of a decree in divorce pursuant to Section 3301(c) of the Divorce Code of 1980. Husband and Wife shall at all times hereafter have the right to live separate and apart from each other and to reside from time to time at such place or places as they shall respectively deem fit, free from any control, restraint, or interference whatsoever by the other. Neither party shall molest the other or endeavor to compel the other to cohabit or dwell with him or her by any legal or other proceedings. The foregoing provision shall not be taken to be an admission on the part of either Husband or Wife of the lawfulness or unlawfulness of the causes leading to their living apart. The parties acknowledge that a divorce action has been filed in the Court of Common Pleas of Cumberland County, Pennsylvania at docket number 07-7481. The parties agree that they will execute Affidavits of Consent and Waivers of Notice of Intention to Request Entry of a Divorce Decree in the aforementioned matter simultaneously with the signing of this Agreement. Thereafter, counsel for Nancy shall file a Praecipe to Transmit Record and obtain a divorce decree. 2. Division of Property. Nancy and Dan agree that the following constitutes an equitable distribution of the marital property. A. Dan's Property. The following property shall become Dan's sole and exclusive property: 1. The 2000 Dodge Caravan subject to any and all existing liens and obligations. Nancy has already transferred all right, title and interest to Dan. 2. The Knights of Columbus Life Insurance policy and associated cash value of approximately $9,072. 3. PSECU savings account and money handler account. 2 4. Dan's Thrift Savings Plan acquired through his employment with the United States Department of Agriculture and with an approximate value of $8,000. 5. Dan's Civil Service Retirement Plan subject to a Qualified Domestic Relations Order in the form attached hereto as Exhibit A. Dan is required to commence receipt of his retirement pension upon termination of his employment with the Agricultural Service. Dan shall continue employment until he has thirty years of service as calculated from the service computation date. 6. All household goods and personalty in Dan's possession or control. B. Nancy's Property. The following property shall become Nancy's sole and exclusive property: 1. Nancy's Fulton savings account number 8195 with nominal value. 2. Nancy's Fulton Bank Certificates of Deposit with a combined approximate value of $5,358 received by Nancy as inheritance. 3. Nancy's Fulton Bank Money Market IRA account with an approximate value of $3,000. 4. Dan shall transfer his Fulton Bank Money Market IRA to Nancy. This transfer shall be to an IRA designated by Nancy and shall occur within 30 days of the signing of this Agreement. 5. All household goods and personalty in Nancy's possession or control. 6. A portion of Dan's Civil Service Retirement Plan as set forth in the 3 Qualified Domestic Relations Order attached hereto as Exhibit A. C. Marital Residence. The parties acknowledge that the property and lot situate at 1112 Floribunda Lane, Mechanicsburg, Pennsylvania 17055 (hereinafter "Marital Home") was transferred to Dan by deed. The parties signed an interim Agreement regarding Real Property dated May 10, 2008. The May 10, 2008 Agreement shall be null and void and replaced in its entirety by this Agreement. Dan has become the sole and exclusive owner of the Marital Home and shall be permitted to take any action with respect thereto that he deems appropriate. Nancy hereby waives, relinquishes and releases any and all past, present or future right, title, claim and/or interest she may have in and to the Marital Home. Dan has refinanced all of the existing debt associated with the marital home. Nancy agrees that any and all title policies and any other policies of insurance with respect to the Marital Home are endorsed to reflect Dan as the sole owner thereof and further agrees that Dan shall be entitled to receive any payments now or hereafter due under such insurance policies. Dan is solely and exclusively responsible for all costs, expenses and liabilities associated with or attributable to the Marital Home, including, but not limited to, any mortgages, any and all home equity loans or lines of credit, taxes, insurance premiums, utilities, maintenance and repairs. Dan shall keep Nancy and her successors, assigns, heirs, executors and administrators indemnified and held harmless from any liability, costs or expense, including actual attorneys fees, which may be incurred in connection with such liabilities and expenses or resulting from Dan's ownership interest in the 4 Marital Home. If Dan refuses to indemnify Nancy for any such expenses, Nancy is entitled to recover from Dan all costs, expenses and legal fees incurred in enforcing Dan's duty to pay the expenses. D. Satisfactory Division of Marital and Non-Marital Property. Nancy and Dan hereby acknowledge that they have divided, to their mutual satisfaction, all of their marital and non-marital assets, including but without limitation, business interests, partnerships, inheritances, jewelry, clothing, pensions, brokerage accounts, stocks, bonds, life insurance policies or other securities, individual retirement accounts, 401(k), employment benefits, checking and savings accounts, mutual funds and other assets, whether real, personal or mixed, tangible or intangible. 3. Taxes. The parties have heretofore filed joint federal and state tax returns. Both parties agree that in the event any deficiency in federal, state or local income tax is proposed, or any assessment of any such tax is made against either of them, each will indemnify and hold harmless the other from and against any loss or liability for any such tax deficiency or assessment and any interest, penalty and expense incurred in connection therewith. Such tax, interest, penalty or expense shall be paid solely and entirely by the individual who is finally determined to be the cause of the misrepresentations or failures to disclose the nature and extent of his or her separate income on the aforesaid joint returns. 4. Additional Documentation. The parties agree to execute any deeds, assignments, titles or other instruments necessary and appropriate to accomplish the aforesaid division of property. 5. Transfers Subiect to Existing Liens. Notwithstanding any other provisions in this document all property transferred hereunder is subject to the existing lien or liens set forth above. The respective transferee of such property agrees to indemnify and save harmless the other party from any 5 claim or liability that such other parry may suffer or may be required to pay on account of such lien or encumbrance. 6. Representations and Warranties. The parties represent and warrant to each other that the property described in this Agreement represents all of the property in which they have any right, title and interest, and that such property is subject to no mortgage, pledge, lien, security interest, encumbrance or charge except those which are disclosed herein. 7. Equitable Division. By this Agreement the parties have intended to effect an equitable division of their jointly owned property. The parties have determined that an equitable division of such property conforms to a just and right standard, with due regard to the rights of each party. The division of existing marital property is not intended by the parties to constitute in any way a sale or exchange of assets, and the division is being effected without the introduction of outside funds or other property not constituting a part of the marital estate. It is the intention of the parties to treat all transfers herein as non-taxable. 8. Relinquishment of Rights. Except as expressly provided herein, Dan forever relinquishes any right, title or interest he may now or hereafter have in any tangible or intangible assets now belonging to Nancy, and Nancy forever relinquishes any right, title or interest she may now or hereafter have in any tangible or intangible assets now belonging to Dan. 9. 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. 6 10. Debts. Dan shall assume sole responsibility for paying the following debts in full: 1. Bank of America credit card with the last four digits 4821, with an approximate balance of $19,500 and which is in his name only. 2. Dan affirms that the Washington Mutual line of credit with the last four digits 1741, with an approximate balance of $25,300, has been paid off and closed. 3. Dan affirms that the Citi credit card with the last four digits 2604, with an approximate balance of $16,000, has been paid off and closed. 4. PSECU Visa credit card with the last four digits 6017, with an approximate balance of 19,500 and which is in his name only. 5. Dan affirms that the Capital One credit card with the last four digits 2982, with an approximate balance of $17,215, has been paid off and closed. 6. Dan affirms that the Washington Mutual mortgage with an approximate balance of $85,000 has been paid off. 7. Sara's automobile loan is in Sara's name and Dan is a co-signer. Dan will work with Sara directly regarding the payment of the loan. Dan and Nancy shall each be solely responsible for all other debts in their respective names, including but not limited to personal loans, charge accounts and credit cards. Both parties represent and warrant to the other that as of the date of this Agreement they have not incurred, and in the future will not contract or incur, any debt or liability for which the other or the estate of the other might be responsible. 11. Liabilities. All debts, contracts, obligations or liabilities incurred at any time in the past or future by either parry will be paid promptly by said party, unless and except as otherwise specifically 7 set forth in this Agreement; and each of the parties hereto further promises, covenants and agrees that each will now and at all times hereafter save harmless and keep the other or his or her estate indemnified and save harmless from all debts or liabilities incurred by him or her, as the case may be, and from all actions, claims and demands whatsoever with respect thereto, and from all costs, legal or otherwise, and counsel fees whatsoever pertaining to such actions, claims and demands. Neither parry shall, as of the date of this Agreement, contract nor incur any debt or liability for which the other or his or her property may be responsible, and shall indemnify and save harmless the other from any and all claims or demands made against him or her by reason of debts or obligations incurred by him or her and from all expenses, legal costs, and counsel fees unless provided to the contrary herein. 12. Counsel Fees, Costs and Expenses. Dan has contributed $2,700 towards the payment of Nancy's legal fees. All other legal fees, costs and expenses incurred in connection with their separation and/or the dissolution of their marriage shall be the responsibility of the individual party. 13. Alimony. Dan shall pay to Nancy the sum of Two Hundred Ten ($210) Dollars bi- weekly for her separate support and maintenance until his death, her death or her remarriage or cohabitation or Dan's retirement from employment with the United States Department of Agriculture, whichever shall first occur. Dan shall make said payments on a bi-weekly basis effective upon signing. In the event Nancy retires prior to Dan's retirement, alimony shall be changed so that Dan pays thirteen (13%) percent of his gross income from employment wages or like income such as disability benefits received in lieu of income and earned income from employment including sick leave. Payments shall continue to be bi-weekly. In the event Dan becomes disabled and his pension has not entered pay status, and Nancy has retired, then Dan shall pay Nancy eight (8%) percent of his gross income from disability benefits received in lieu of income and earned income from employment, including sick leave. Payments shall continue on a bi-weekly basis. Failure to make the payments timely (within 14 days of each pay period) will be considered a default under the terms of this Agreement. Nancy shall be required to provide Dan with written notice of default and Dan shall have ten (10) days after receipt of notice to cure the default. Dan's failure to cure the default within ten (10) days of receipt of notice of default will allow Nancy to pursue all remedies available under Paragraph 25 regarding breach. In the event Nancy provides Dan with direct deposit information for another account, Dan shall make the payments to the account designated by Nancy. 14. Tax Ramifications of Alimony. The parties agree that the entire amount being paid to Wife pursuant to this paragraph is a separate maintenance periodic payment, included and intended to be included with the income of Wife within the meaning and intent of Section 71 of the United States Internal Revenue Code of 1954 and deductible from the Husband's gross income pursuant to the provisions of Section 215 of the United States Internal Revenue Code of 1954. Wife agrees that all said payments shall be included as income to the Wife in her applicable tax returns and that she shall pay such taxes as may be required by reason of such inclusion. 15. Non-Modification of Alimony. The parties agree that the alimony provision takes into account the parties' overall economic circumstances including the equitable distribution of property herein and so shall not be subject to modification by any court. 16. Effect of Subsequent Bankruptcy. The parties agree that none of Husband's obligations under the terms of this Agreement are intended to be a debt which is affected by a discharge in bankruptcy. They further specifically intend that Husband's obligations under the terms of this 9 Agreement shall be non-dischargeable and not subject to discharge in bankruptcy because they acknowledge that, based upon the respective incomes, assets and needs of the parties and their households, such are necessary for Wife to meet her financial obligations and to support and maintain her standard of living. Husband represents that there are no bankruptcy proceedings presently pending in which he is involved. Husband expressly agrees not to file a bankruptcy action prior to the completion of his obligations pursuant to this paragraph. These obligations shall not be discharged in a bankruptcy action filed by or against Husband. If Husband files for bankruptcy, this Agreement shall constitute conclusive evidence of the parties' intent that the obligations of this paragraph are in the nature of maintenance and support, and are not dischargeable under current bankruptcy law or under any amendment thereto. Further, if Husband institutes any action in bankruptcy or any other bankruptcy proceeding is instituted in which Wife's right to payments or property hereunder becomes a matter for judicial review, Husband agrees to consent to any motion filed by Wife with the bankruptcy courts, wherein she may request that the bankruptcy courts abstain from deciding the dischargeability of any and all obligations to her hereunder in order to allow the appropriate court of common pleas to rule upon this issue. Further, in the event that either party becomes a debtor in any bankruptcy or financial reorganization proceedings of any kind while any obligations remain to be performed by that party for the benefit of the other parry pursuant to the provisions of this Agreement, the debtor spouse hereby waives, releases and relinquishes any right to claim any exemption (whether granted under state or federal law) to any property remaining in the debtor as a defense to any claim made pursuant hereto by the creditor-spouse, and the debtor-spouse hereby assigns, transfers and conveys to the creditor-spouse an interest in all of the debtor's exempt property sufficient to meet all obligations to the creditor-spouse 10 as set forth herein, including all attorney's fees and costs. 17. Life Insurance. Dan shall name Nancy as sole irrevocable beneficiary on his life insurance available through employment in an amount no less than fifty thousand ($50,000) dollars. This will remain in place until Dan retires or the terms of his employment no longer permit the insurance as a benefit, whichever comes first. 18. Financial Disclosure and the Use of the Collaborative Process. After consultation with their respective counsel regarding the options for use of legal services in divorce, the parties elected to use a Collaborative Law process to make the decisions necessary under the circumstances. Prior to commencing negotiations, the parties waived formal discovery unless they agreed otherwise. The collaborative law participation agreement under which the parties operated required the parties to commit to full and fair disclosure of all assets, incomes, debts and other information needed for full and complete settlement. Each party had the opportunity to request information and receive copies of any documents requested including, but not limited to, statements regarding investment, retirement, checking and savings accounts, deeds and real estate settlement sheets. Neither party wishes to make or append hereto any further enumeration or statement. Each parry acknowledges that he or she is sufficiently familiar with the assets and income of the other to make an informed decision regarding the content of this agreement. Each party warrants that he or she is not aware of any marital asset which is not identified in this agreement. Each party understands that he/she had the right to obtain from the other party a complete inventory or list of all property that either or both parties owned at the time of separation or currently and that each party had the right to have all property valued by means of appraisals or otherwise. In arriving at the agreement set forth in this agreement, Dan and Nancy have applied their individual standards of reasonableness and acceptability. The conclusions they have 11 reached are based in part on the respect and regard for each other. From time to time, in order to measure the appropriateness of their conclusions, the parties have considered what might happen if the matter were adjudicated in court but they have elected to make their final agreement without regard to whether a court might have adjudicated issues in the same manner as they have agreed here. Dan and Nancy represented to one another throughout the collaborative law process that their negotiations were in good faith and that each had fully and completely disclosed all financial information necessary or requested in order to resolve the parties' property and support rights fairly. By their signature on this Agreement, they reaffirm those representations, upon which each of them has relied in making this Agreement. The parties acknowledge that no independent investigation has been made by their collaborative lawyers of the character or of the value of the parties' property, or the extent of debt or amount of income of the parties, other than an inspection of income tax returns and the documents voluntarily provided by the parties. The parties have instructed counsel that they desire to make this agreement without any further independent investigation by counsel. The parties understand and acknowledge that they are relying on their mutual disclosure in making this agreement and that they are not relying on their counsel for any independent verifications of the accuracy or completeness of these disclosures. Each party retains the right to assert a claim against the other for failure to fully and fairly disclose his or her income, assets and liabilities, if it is later determined that there has been a failure to disclose, including but not limited to, a claim of constructive trust. 19. Releases. Each party does hereby remise, release, quitclaim and forever discharge the other and the estate of the other from any and every claim that each other may now have, or hereafter have or can have at any time, against the other, or in and to or against the other's estate, or any part 12 thereof, whether arising out of any former contracts, engagements or liabilities of the other, or by way of dower or claim in the nature of dower, widow's rights, or under the intestate laws, or the right to take against each other's will, or for support or maintenance, or of any other nature whatsoever, except any rights accruing under this Agreement. 20. Indemnification. Each party represents and warrants to the other that he or she has not incurred any debt, obligation, or other liability, other than described in this Agreement, on which the other party is or may be liable. Each party covenants and agrees that if any claim, action or proceeding is hereinafter initiated seeking to hold the other party liable for any other debts, obligations, liability, act or omission of such party, such party will at his or her sole expense, defend the other against any such claim or demand, whether or not well-founded, and that he or she will indemnify and hold harmless the other party in respect of all damages as resulting therefrom. Damages as used herein shall include any claim, action, demand, loss, cost, expense, penalty, and other damage, including without limitation, counsel fees and other costs and expenses reasonably incurred in investigating or attempting to avoid same or in opposing the imposition thereof or enforcing this indemnity, resulting to Husband or Wife from any inaccurate representation made by or on behalf of either Husband or Wife to the other in this Agreement, any breach of any of the warranties made by Husband or Wife in this Agreement, or breach or default in performance by Husband or Wife of any of the obligations to be performed by such parry hereunder. The Husband or Wife agrees to give the other prompt written notice of any litigation threatened or instituted against either party which might constitute the basis for a claim for indemnity pursuant to the terms of this Agreement. 21. General Provisions. This Agreement constitutes the entire understanding of the parties and supersedes any and all prior agreements and negotiations between them. There are no 13 representations or warranties other than those expressly set forth herein. 22. Fair and Equitable Contents. The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel. Each party acknowledges that he or she has received independent legal advice from counsel of his or her selection and that each fully understands the facts and has been fully informed as to his or her legal rights and obligations. Each party acknowledges and accepts that this Agreement is, under 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. 23. Method of Resolution for Future Issues. It is possible that in the future Dan and Nancy may have disagreements with one another concerning the interpretation of this Agreement and the resulting decree based on the Agreement, or concerning modification of the alimony provisions of this Agreement. In keeping with their decision to utilize the Collaborative Law process for resolution of the issues set forth in this Agreement, the parties wish to not resort to any court before reasonable non-court alternatives have first been attempted to resolve any future issues. They have agreed that it is in their best interests to try to resolve informally any disputes that may arise in the future as set forth below, except in the case of urgent or emergency situations which would reasonably prevent such resolutions or make them impracticable, and they agree that they will seek resolution by the following steps: (a.) The parties first will attempt in good faith to confer with one another directly in an attempt to come to a fair and amicable resolution of any issue. (b.) If that is unsuccessful, then as the second step the parties agree to each retain collaborative counsel and reconvene the collaborative process pursuant to the Collaborative Participation 14 Agreement previously signed by Dan and Nancy and counsel in this proceeding, a copy of which is attached hereto marked as Exhibit "A" and incorporated herein by reference. (c.) If there is no resolution after these steps have been taken in good faith, either party may commence contested court proceedings. 24. Breach. It is expressly stipulated that if either party fails in the due performance of any of his or her material obligations under this Agreement, the other party shall have the right, at his or her election, to sue for damages for breach thereof, to sue for specific performance, or to seek any other legal remedies as may be available, and the defaulting parry shall pay the reasonable legal fees for any services rendered by the non-defaulting party's attorney in any action or proceeding to compel performance hereunder. 25. Execution of Documents. Each party shall on demand execute any other documents that may be necessary or advisable to carry out the provisions of this Agreement. 26. Modification. No modification, rescission or amendment to this Agreement shall be effective unless in writing signed by each of the parties hereto. 27. Severability. If any provision of this Agreement is held by a Court of competent jurisdiction to be void, invalid or unenforceable, the remaining provisions hereof shall nevertheless survive and continue in full force and effect without being impaired or invalidated in any way. 28. Applicable Law. This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania. 29. Agreement Not to be Merged. This Agreement may be filed with the Court for incorporation into the Decree of Divorce for purposes of enforcement only, but otherwise shall not be merged into said Decree. The parties shall have the right to enforce this Agreement under the Divorce 15 Code of 1980, as amended, and in addition, shall retain any remedies in law or in equity under this Agreement as an independent contract. Such remedies in law or equity are specifically not waived or released. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. Witness: ncy Ca ick a J- - r2 - - :: , "'/ 11 ') Daniel F. Capstick, Jr. 16 COMMONWEALTH OF PENNSYLVANIA COUNTY OF YORK . ss. Personally appeared before me, a Notary Public in and for the aforesaid Commonwealth and County, Nancy Capstick and Daniel F. Capstick, Jr., who being duly sworn according to law depose and say that they are the parties of the foregoing Agreement and that they executed same for the purposes therein contained. Witness my hand and seal this x yn, day of De4ec, .. , 2008. Notary Public My Commission Expires: COMMONWEALTH OF PENNSYLVANIA Notarial Seal Timothy J. Colgan, Notary Public Dillsburg Boro, York County MY Commission Expires Oct. 3, 2010 Member, Pennsylvania Association of Notaries 17 Nancy Capstick IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW - IN DIVORCE Daniel F Capstick Jr. NO. 07-7481 Defendant DOMESTIC RELATIONS ORDER 1. This Domestic Relations Order ("DRO") creates and recognizes the existence of the Alternate Payee's right to receive a portion of the benefits payable with respect to the Participant. It is intended to constitute a DRO Acceptable For Processing under final regulations issued by the Office of Personnel Management ("OPM"). 2. This DRO is entered pursuant to authority granted under the applicable domestic relations laws of the State of Pennsylvania. 3. This DRO relates to the provision of marital property rights to the Alternate Payee. 4. This DRO applies to the Civil Service Retirement System ("Plan") and any successor thereto. Daniel F. Capstick, Jr. ("Participant") is a Participant in the Plan. Nancy Capstick "Alternate Payee"), the former spouse, is the Alternate Payee for the purposes of this DRO. 5. The Participant's name, mailing address, Social Security number and date of birth are: Daniel F. Capstick, Jr. 1112 Floribunda Lane Mechanicsburg, PA 17055-5301 Social Security No.: 429-04-0747 Date of Birth: September 9, 1953 6. The Alternate Payee's name, mailing address, Social Security number and date of birth are: I Exhibit A DRO Page 2 of 5 Nancy Capstick 1477 Hillcrest Court, Apt. 806 Camp Hill, PA 17011-8027 Social Security No.: 002-40-0941 Date of Birth: March 25, 1949 It is the responsibility of the Alternate Payee to keep a current mailing address on file with the Plan at all times. 7. The Alternate Payee is entitled to a portion of the Participant's Gross Monthly Annuity under the Plan as set forth below. The OPM is hereby directed to pay Alternate Payee's share directly to Alternate Payee. 8. This DRO assigns to Alternate Payee an amount equal to 29.73% of the marital portion of the Participant's gross monthly annuity accrued under the Plan as of the date of cessation of benefit accruals. The marital portion of the Participant's gross monthly annuity shall be determined by multiplying the Participant's gross monthly annuity by a fraction (less than or equal to 1.0), the numerator of which is the total number of months of creditable service earned by the Participant from February 4, 1984, the date of marriage, to September 1, 2007, the date of separation, and the denominator of which is the total number of months of creditable service earned by the Participant as of the date of cessation of benefit accruals. In addition to the above, when COLA's are applied to Participant's retirement benefits, the same COLA shall apply to the Alternate Payee's share. 9. Payments to Alternate Payee shall commence the date payments commence to the Participant. Participant agrees to arrange or to execute all forms necessary for the OPM to commence payments to the Alternate Payee in accordance with the terms of the DRO. 10. Payments shall continue to Alternate Payee for the remainder of the Participant's lifetime. If the Alternate Payee dies before the Participant, the Alternate Payee's share of the Participant's pension shall revert to the Participant. DRO Page 3 of 5 11. The Alternate Payee is awarded a former spouse survivor annuity. If the Participant dies before his benefits commence, the amount of the survivor annuity payable to the Alternate Payee shall be the maximum pre-retirement survivor annuity under the terms of the Plan. If the Participant dies after his benefits commence, the amount of the former spouse survivor annuity shall be equal to the maximum survivor annuity with an initial base amount equal to 54.055% of the marital portion of the Participant's gross monthly annuity. The intent of this paragraph is to provide level lifetime income to the Alternate Payee in the event the Participant predeceases the Alternate Payee after retirement. The costs associated with providing this former spouse survivor annuity coverage shall be deducted from the Participant's portion of the gross monthly annuity. Participant agrees to take all necessary steps to elect Alternate Payee as designated beneficiary for the purposes of establishing and sustaining such former spouse coverage for Alternate Payee. 12. If Participant leaves Federal service before retirement and applies for a refund of employee contributions under the Plan, the OPM is directed not to pay the Participant a refund of such employee contributions. 13. In no event shall the Alternate Payee have greater benefits or rights other than those which are available to the Participant. The Alternate Payee is not entitled to any benefit not otherwise provided by the Plan. The Alternate Payee is only entitled to the specific benefits offered by the Plan as provided in this Order. All other rights, privileges and options offered by the Plan not granted to Alternate Payee are preserved for the Participant. 14. The Plan shall issue individual tax forms to the Participant and Alternate Payee for amounts paid to each such person. 15. In the event that the Plan inadvertently pays to the Participant any benefits that are assigned to the Alternate Payee pursuant to the terms of this DRO, the Participant shall immediately reimburse the Alternate Payee to the extent that he has received such benefit payments, and shall forthwith pay such amounts so received directly to the Alternate Payee within ten (10) days of receipt. In the event the Plan inadvertently pays to the Alternate Payee any benefits that are not assigned to her pursuant to the terms of this DRO, the Alternate Payee shall immediately reimburse the Participant to the extent she has received such benefit payments and DRO Page 4 of 5 shall forthwith pay such amounts so received directly to the Participant within ten (10) days of receipt. 16. In the event the Participant makes a one-time irrevocable election to transfer into the Federal Employees Retirement System ("FERS") before his retirement, then Alternate Payee shall be entitled to a portion of the Participant's Basic Annuity and/or a Refund of employee contributions under FERS calculated in a manner similar to that which is enumerated in Sections 8, 9, 10, 11 and 12 above for the annuity and refund, respectively, and payable directly from FERS. Additionally, Alternate Payee shall be entitled to a former spouse survivor annuity payable under FERS and determined in a similar manner to the survivor benefits set forth under Section 11 above. Further, such former spouse survivor annuity shall be payable directly from FERS. 17. If Participant takes any action that prevents, decreases, or limits the collection by Alternate Payee of the sums to be paid hereunder, he shall make payments to Alternate Payee directly in an amount sufficient to neutralize, as to Alternate Payee, the effects of the actions taken by Participant. 18. The OPM shall notify the Alternate Payee and her legal representative when the Participant makes an application for any benefit payments or withdrawals from the Plan. DRO Page 5 of 5 19. The Court of Common Pleas of Cumberland County, Pennsylvania shall retain jurisdiction to amend this Order, but only for the purpose of establishing it or maintaining it as a Domestic Relations Order, provided, however, that no such amendment shall require the Plan to provide any form of benefit or any option not otherwise provided by the Plan, and further provide that no such amendment or right of the Court to so amend will invalidate this Order. Accepted and Ordered this day of , BY THE COURT CONSENT TO ORDER: Judge Plaintiff/Alternate Payee Date Defendant/Participant Date Attorney for Plaintiff/ Date Attorney for Defendant/ Date Alternate Payee Participant ry r 7i NANCY CAPSTICK, V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DANIEL F. CAPSTICK, JR. NO. 07-7481 CIVIL TERM DIVORCE DECREE AND NOW7:? ?0, , it is ordered and decreed that NANCY CAPSTICK, plaintiff, and DANIEL F. CAPSTICK, JR. , defendant, are divorced from the bonds of matrimony. Any existing spousal support order shall hereafter be deemed an order for alimony pendente lite 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.") 1JOWQ.- The terms and provisions of the Martial Settlement Agreement signed by the parties and dated December 24, 2008 are hereby incorporated but not merged in the Decree of Divorce and remain binding upon the parties. By the Attest: J. Prothonotary -1110? ;Iv "P, A ' 7- Z"7. r V Nancy Capstick Plaintiff VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW - IN DIVORCE Daniel F Capstick Jr. NO. 07-7481 Defendant DOMESTIC RELATIONS ORDER 1. This Domestic Relations Order ("DRO") creates and recognizes the existence of the Alternate Payee's right to receive a portion of the benefits payable with respect to the Participant. It is intended to constitute a DRO Acceptable For Processing under final regulations issued by the Office of Personnel Management ("OPM"). 2. This DRO is entered pursuant to authority granted under the applicable domestic relations laws of the State of Pennsylvania. 3. This DRO relates to the provision of marital property rights to the Alternate Payee. 4. This DRO applies to the Civil Service Retirement System ("Plan") and any successor thereto. Daniel F. Capstick, Jr. ("Participant") is a Participant in the Plan. Nancy Capstick ("Alternate Payee"), the former spouse, is the Alternate Payee for the purposes of this DRO. 5. The Participant's name, mailing address, Social Security number and date of birth are: Daniel F. Capstick, Jr. 1112 Floribunda Lane Mechanicsburg, PA 17055-5301 Social Security No.: 429-04-0747 Date of Birth: September 9, 1953 6. The Alternate Payee's name, mailing address, Social Security number and date of birth are: DRO Page 2 of 5 Nancy Capstick 1477 Hillcrest Court, Apt. 806 Camp Hill, PA 17011-8027 Social Security No.: 002-40-0941 Date of Birth: March 25, 1949 It is the responsibility of the Alternate Payee to keep a current mailing address on file with the Plan at all times. The Alternate Payee is entitled to a portion of the Participant's Gross Monthly Annuity under the Plan as set forth below. The OPM is hereby directed to pay Alternate Payee's share directly to Alternate Payee. 8. This DRO assigns to Alternate Payee an amount equal to 29.73% of the marital portion of the Participant's gross monthly annuity accrued under the Plan as of the date of cessation of benefit accruals. The marital portion of the Participant's gross monthly annuity shall be determined by multiplying the Participant's gross monthly annuity by a fraction (less than or equal to 1.0), the numerator of which is the total number of months of creditable service earned by the Participant from February 4, 1984, the date of marriage, to September 1, 2007, the date of separation, and the denominator of which is the total number of months of creditable service earned by the Participant as of the date of cessation of benefit accruals. In addition to the above, when COLA's are applied to Participant's retirement benefits, the same COLA shall apply to the Alternate Payee's share. 9. Payments to Alternate Payee shall commence the date payments commence to the Participant. Participant agrees to arrange or to execute all forms necessary for the OPM to commence payments to the Alternate Payee in accordance with the terms of the DRO. 10. Payments shall continue to Alternate Payee for the remainder of the Participant's lifetime. If the Alternate Payee dies before the Participant, the Alternate Payee's share of the Participant's pension shall revert to the Participant. DRO Page 4 of 5 shall forthwith pay such amounts so received directly to the Participant within ten (10) days of receipt. 16. In the event the Participant makes a one-time irrevocable election to transfer into the Federal Employees Retirement System ("FERS") before his retirement, then Alternate Payee shall be entitled to a portion of the Participant's Basic Annuity and/or a Refund of employee contributions under FERS calculated in a manner similar to that which is enumerated in Sections 8, 9, 10, 11 and 12 above for the annuity and refund, respectively, and payable directly from FERS. Additionally, Alternate Payee shall be entitled to a former spouse survivor annuity payable under FERS and determined in a similar manner to the survivor benefits set forth under Section 11 above. Further, such former spouse survivor annuity shall be payable directly from FERS. 17. If Participant takes any action that prevents, decreases, or limits the collection by Alternate Payee of the sums to be paid hereunder, he shall make payments to Alternate Payee directly in an amount sufficient to neutralize, as to Alternate Payee, the effects of the actions taken by Participant. 18. The OPM shall notify the Alternate Payee and her legal representative when the Participant makes an application for any benefit payments or withdrawals from the Plan. C? CD C" cz t ?.,