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HomeMy WebLinkAbout04-1887AMY M. EWING, V. DANIEL R. ICKES, IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY Plaintiff, PENNSYLVANIA CIVIL ACTION - LAW NO. 04 -107 C tU L-Tezxn Defendant IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTS TO: Daniel R. Ickes 316 Fourth Street Enola, PA 17025 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. When the ground for 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 Courthouse, One Courthouse Square, Carlisle, Pennsylvania. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, Pennsylvania 17013-3387 PHONE: (717) 249-3166 290043-1 AMY M. EWING, IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY Plaintiff, PENNSYLVANIA V. CIVIL ACTION - LAW NO. eqy / F F 7 ?t4:LL Ts4^ DANIEL R. ICKES, Defendant IN DIVORCE COMPLAINT UNDER § 3301 OF THE DIVORCE CODE Plaintiff is Amy M. Ewing who currently resides at 316 Fourth Street, Enola, Cumberland County, Pennsylvania, 17025. 2. Defendant is Daniel R. Ickes who currently resides at 316 Fourth Street, Enola, Cumberland County, Pennsylvania, 17025. Plaintiff has been a bona fide resident of the Commonwealth of Pennsylvania for a period of more than six (6) months immediately preceding the filing of this Complaint. 4. The parties were married on July 28, 1992 in Enola, Cumberland County, Pennsylvania. 5. Neither Plaintiff nor Defendant is in the military or naval service of the United States or its allies within the provisions of the Soldiers and Sailors Civil Relief Act of the Congress of 1940 and Its Amendments. 6. There has been no prior action for divorce or annulment instituted by either of the parties in this or any other jurisdiction. The 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. 290043-1 8. Plaintiff avers that there are two children born of the marriage: Daniel G. Ickes (DOB: 10/24/1999) and Cheyenne S. Ickes (DOB: 2/13/1995). COUNTI REQUEST FOR A NO-FAULT DIVORCE UNDER 4 3301(c) OF THE DIVORCE CODE 9. The prior paragraphs of this Complaint are incorporated herein by reference thereto. 10. The marriage of the parties is irretrievably broken. 11. After ninety (90) days have elapsed from the date of the filing and service of this Complaint, Plaintiff intends to file an Affidavit consenting to a divorce. Plaintiff believes that Defendant may also file such an Affidavit. WHEREFORE, if both parties file Affidavits consenting to a divorce after ninety (90) days have elapsed from the filing and service of this Complaint, Plaintiff respectfully requests the Court to enter a decree of divorce pursuant to § 3301(c) of the Divorce Code. Respectfully submitted, METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Andrew C. Spears Supreme Court I.D. No. 87737 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Attorneys for Plaintiff Date: y (o ' ?1{ 290043-1 VERIFICATION I, Amy M. Ewing, verify that the statements made in the foregoing Complaint for Custody are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Amy Nwing 1 Dated: D q 290043-1 ?4 1 D r_ CJ ' ra m (-, a =)m C%rn w O ?j r1u, AMY M. EWING, VS. DANIEL R. ICKES, To the Prothonotary: : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1887 CIVIL ACTION -LAW Defendant IN DIVORCE PRAECIPE FOR ENTRY OF APPEARANCE Please enter the appearance of Linda A. Clotfelter, Esquire, of Law Offices of Craig A. Diehl, as the attorney of record for Defendant, Daniel R. Ickes in the above-captioned case. Dated: LAW OFFICES OF CRAIG A. DIEHL Lida A. Clotfelter, Esquire tomey ID No. 72963 3464 Trindle Road Camp Hill, PA 17011 (717) 763-7613 AMY M. EWING, Vs. : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PENNSYLVANIA DANIEL R. ICKES, Defendant : NO. 04-1887 : CIVIL ACTION -LAW : IN DIVORCE CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date, a true and correct copy of the foregoing document was served upon interested parties by way of United States First Class Mail, postage prepaid, addressed as follows: Andrew C. Spears, Esquire 3211 North Front Street Harrisburg, PA 17110-0300 LAW OFFICES OF CRAIG A. DIEHL Date: J5 J'50 By: a L cy . Ja , e Assistant 3464 Trindle Road Camp Hill, PA 17011 (717) 763-7613 c m = _ T = V 41 a - <7 . d rn Cl W AMY M. EWING, IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY Plaintiff, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 04-1887 DANIEL R. ICKES, Defendant IN DIVORCE AFFIDAVIT OF SERVICE I, Andrew C. Spears, Esquire, counsel for Plaintiff, Amy M. Ewing, in the above- captioned action, hereby certify that a true and correct copy of the Amended Complaint in Divorce was served upon Defendant, Daniel R. Ickes, via regular mail and certified, return receipt restricted mail on May 6, 2004. Attached hereto, marked as Exhibit "A", and incorporated herein by reference is a copy of the return receipt card for said service. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By Andrew C. Spears, Esquire Attorney I.D. No. 87737 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Attorneys for Plaintiff Dated: Mayes 2004 304734-1 CERTIFICATE OF SERVICE AND NOW, this day of May, 20043, I, Andrew C. Spears, Esquire, of Metzger, Wickersham, Knauss & Erb, P.C., attorneys for Plaintiff, hereby certify that I served a copy of the within Affidavit of Service this day by depositing the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Linda A. Clotfelter, Esquire Law Offices of Craig A. Diehl 3464 Trindle Road Camp Hill, PA 17011 METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Andrew C. Spears, Esquire; Attorney Id. No. 87737 3211 North Front Street P.O. Box 5300 Harrisburg, PA 1 71 1 0-03 00 (717) 238-8187 304734-1 C7 ^' n C) r J -J 1'_. T Ti -_ 1 l? 'C7 E3 ' 5 _ AMY M. EWING, PlaintifVRespondent VS. DANIEL R. ICKES, Defendant/Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-1887 CIVIL TERM IN DIVORCE - DECLARATORY JUDGMENT AS TO MARITAL STATUS NOTICE TO PLEAD TO AMY M. EWING, RESPONDENT: You are hereby notified to file a written response to the: enclosed Petition for Declaratory Judgment as to Marital Status within twenty (20) days of senfice hereof or a judgment may be entered against you. LAW OFFICES OF CRAIG A. DIEHL ttorney I.I). 72963 464 Trindle Road amp Hill, PA 17011 (717)763-7613 telephone (717)763-8293 facsimile Attorney for Petitioner/Defendant AMY M. EWING, PlaintifURespondent VS. DANIEL R. ICKES, Defendant/Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-1887 CIVIL TERM IN DIVORCE - DECLARATORY JUDGMENT AS TO MARITAL STATUS PETITION FOR DECLARATORY JUDGMENT AS TO MARITAL STATUS AND NOW, comes Petitioner, Daniel R. Ickes, by and through his counsel, Linda A. Clotfelter, Esquire, and files this Petition for Declaratory Judgment as to Marital Status, respectfully stating in support thereof the following: 1. Petitioner is Daniel R. Ickes, (hereinafter referred to as the "Petitioner"), the named Defendant in the above-captioned matter, who is an adult individual currently residing at 316 Fourth Street, Enola, Cumberland County, Pennsylvania 17025. 2. Respondent is Amy M. Ewing, (hereinafter referred to as the "Respondent'), the named Plaintiff in the above-captioned matter, who is an adult individual currently residing at 316 Fourth Street, Enola, Cumberland County, Pennsylvania 17025. 3. Respondent filed a Complaint Under § 3301 of the Divorce Code on April 28, 2004. The Complaint sought a no-fault divorce under § 3301(c) of the Divorce Code. 4. The parties to this proceeding have never been married under common law or otherwise, and therefore, a Complaint in Divorce is improper. 5. Petitioner and Respondent have never uttered words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by same. 6. The parties have not held themselves out to the world as husband and wife, although they have resided together and do have children. 7. Petitioner files his income tax returns as "single" and has never filed a joint return with Respondent. 8. Respondent has not taken Petitioner's name, nor has she used Petitioner's name for her driver's license, bank accounts, or other official documents. 9. The parties do not jointly own real estate. 10. Petitioner now seeks to have this Court determine that no marriage exists between the parties. WHEREFORE, Petitioner, Daniel R. Ickes, respectfully requests that this Honorable Court enter an Order finding that no marriage exists between the parties; dismissing the Complaint in Divorce filed by Respondent, with prejudice; and awarding Petitioner costs of this action, and such further relief as the Court may deem just and proper. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Date: 519 D > 1 rJY" A orneyTrinLdih I). 72963 64 Road Camp Hill, PA 17011 (717)763-7613 telephone (717)763-8293 facsimile Attorney for Petitioner/Defendant AMY M. EWING, : IN THE COURT OF COMMON PLEAS OF Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA VS. : CIVIL ACTION - LAW DANIEL R. ICKES, : NO. 04-1887 CIVIL TERM Defendant/Petitioner IN DIVORCE - DECLARATORY JUDGMENT AS TO MARITAL STATUS VERIFICATION I, DANIEL R. ICKES, verify that the statements made in the foregoing PETITION FOR DECLARATORY JUDGMENT AS TO MARITAL STATUS are true and correct to the best of my knowledge, information and belief. 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: 5-/2-0 / Q DANI R. ICKES, Petitioner, Defendant AMY M. EWING, : IN THE COURT OF COMMON PLEAS OF PlaintifVRespondent : CUMBERLAND COUNTY, PENNSYLVANIA VS. : CIVIL ACTION - LAW DANIEL R. ICKES, : NO. 04-1887 CIVIL TERM Defendant/Petitioner IN DIVORCE - DECLARATORY JUDGMENT AS TO MARITAL STATUS CERTIFICATE OF SERVICE AND NOW, this Zh day of May, 2004, the undersigned hereby certifies that a true and correct copy of the foregoing PETITION FOR DECLARATORY JUDGMENT AS TO MARITAL STATUS was served upon the opposing party by way of United States first class mail, postage prepaid, addressed as follows: Andrew C. Spears, Esquire METZGER WICKERSHAM 3211 North Front Street Harrisburg, PA 17110-0300 LAW OFFICES OF CRAIG A. DIEHL By: t 1 J , Le e I 3464 Trmdle Road Camp Hill, PA 17011 (717)763-7613 telephone (717)763-8293 facsimile AMY M. EWING, Plaintiff VS. DANIEL R. ICKES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION •• LAW NO. 04-1887 CIVIL TERM IN DIVORCE DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT UNDER S 3301 OF THE DIVORCE CODE AND NOW, comes Defendant, Daniel R. Ickes, by and through his counsel, Linda A. Clotfelter, Esquire, and files this answer to Plaintiff's Complaint Under § 3301 of the Divorce Code as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. The parties to this proceeding have never been married as alleged by Plaintiff, under common law or otherwise, and therefore, strict proofthereof is demanded. In further answer hereof, Defendant, by separate pleading, will seek to have this Honorable Court declare that the parties were not married and accordingly, will seek to have this Complaint in Divorce dismissed. 5. Admitted. 6. Admitted in part and denied in part. It is admitted that no prior action for divorce or annulment has been instituted by either party, however, any implication that an action for divorce or annulment is required is specifically denied by Defendant. In further answer hereof, the parties to this proceeding have never been married and therefore, a divorce or annulment is unnecessary and Plaintiff's Complaint should be dismissed with prejudice. 7. Denied. Defendant lacks specific knowledge or information as to the truth of this allegation and therefore, it is specifically denied and strict proof thereof is demanded at trial. Admitted in part and denied in part. It is admitted only that Plaintiff and Defendant have two children, Daniel G. Ickes having been born October 24, 1999 and Cheyenne S. Ickes, having been born February 13, 1995, however, it is specifically denied by Defendant that these children were born of a marriage. In further answer hereof, the parties to this proceeding have never been married and their children were born out-of-wedlock. COUNTI REQUEST FOR A NO-FAULT DIVORCE UNDER 4 3301(C) OF THE DIVORCE CODE 9. Denied. No response is required to this allegation. 10. Denied. It is denied that the marriage of the parties is irretrievably broken, as no marriage between the parties exists. In further answer hereof, the parties to this proceeding have never been married as alleged by Plaintiff, under common law or otherwise, and therefore, strict proofthereof is demanded. Defendant, by separate pleading, will seek to have this Honorable Court declare that the parties were not married and accordingly, will seek to have this Complaint in Divorce dismissed. 11. Denied. The allegations of this paragraph are specifically denied by Defendant as affidavits consenting to a divorce are not required because the parties have never been married, a divorce is not necessary, and this proceeding should be dismissed. Therefore, strict proof of the allegations of this paragraph are demanded at the triad in this matter. WHEREFORE, Defendant, Daniel R. Ickes, respectfully requests that this Honorable Court find that no marriage exists between the parties; dismiss the Complaint in Divorce filed by Plaintiff with prejudice; and grant Defendant such other relief as this Court deems just and proper. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL 4114'u ? L' da A. Clotfelter, Esquire A orney I.D. 72963 464 Trindle Road Camp Hill, PA 17011 (717)763-7613 telephone (717)763-8293 facsimile Attorney for Petitioner/Defendant AMY M. EWING, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. : CIVIL ACTION - LAW DANIEL R. ICKES, : NO. 04-1887 CIVIL TERM Defendant IN DIVORCE VERIFICATION I, DANIEL R. ICKES, verify that the statements made in the foregoing ANSWER TO PLAINTIFF'S COMPLAINT UNDER § 3301 OF THE DIVORCE CODE are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. od Date: 9'0y DANIEL R. KE3, Defendant AMY M. EWING, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA Vs. : CIVIL ACTION - LAW DANIEL R. ICKES, : NO. 04-1887 CIVIL TERM Defendant IN DIVORCE CERTIFICATE OF SERVICE AND NOW, this " day of May, 2004, the undersigned hereby certifies that a true and correct copy ofthe foregoing ANSWERTO PLAINTIFF'S COMPLAINT UNDER § 3301 OF THE DIVORCE CODE was served upon the opposing party by way of United States first class mail, postage prepaid, addressed as follows: Andrew C. Spears, Esquire METZGER WICKERSHAM 3211 North Front Street Harrisburg, PA 17110-0300 LAW OFFICES OF CRAIG A. DIEHL By: - 'i ?64 ? L PA(- y, L s ary 3464 Tnndle Road Camp Hill, PA 17011 (717)763•-7613 telephone (717)763-8293 facsimile (? N b ? m? c IN> AMY M. EWING, Respondent/Plaintiff, V. IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW NO. 04-1887 DANIEL R. ICKES, Petitioner/Defendant IN DIVORCE PLAINTIFF'S RESPONSE TO DEFENDANT'S PETITION FOR DECLARATORY JUDGMENT AS TO MARITAL STATUS AND NOW, comes Respondent/Plaintiff Amy M. Ewing, by and through her attorneys, Metzger, Wickersham, Knauss & Erb, P.C., and submits the following response to Petitioner/Defendant's Petition for Declaratory Judgment As To Marital Status: Admitted. 2. Admitted. Without admission, no response is required as Plaintiff's Complaint speaks for itself. 4. Conclusion of law; no response is required. If a response is required, the parties were married on July 28, 1992. Further, the parties signed an Affidavit of Common Law Marriage on February 12, 2001, which was notarized, where both parties swore that they entered into the relationship of husband and wife under common law on July 28, 1992. A copy of this Affidavit is attached hereto as Exhibit A and is incorporated herein by reference. 5. Conclusion of law; no response is required. If a. response is required, the parties have uttered words in the present tense with the view and purpose of establishing the relationship 305722-1 of husband and wife which they swore to in the Affidavit of Common Law Marriage dated February 12, 2001. 6. Conclusion of law; no response is required. If a response is required, the parties have held themselves out to the world as husband and wife and, again, both agreed to enter into the relationship of Husband and Wife under common law and signed a sworn Affidavit of Common Law Marriage. Petitioner introduces and refers to Respondent to family and friends as his wife; conversely, Respondent introduces and refers to Petitioner to family and friends as her husband. It is admitted that Petitioner filed single tax returns. It is specifically denied that this has any bearing on whether the parties were validly married under common law. Petitioner only filed as single upon the advice of the parties' joint accountant to achieve a better filing status and maximize his return. 8. It is admitted that Respondent has not taken Petitioner's name or that she has used Petitioner's name for her driver's license. It is specifically denied that this has any relevance to whether the parties entered into the relationship of husband and wife under common law. Further, the parties have a joint checking and savings account at Belco Community Credit Union. 9. Conclusion of law; no response is required. If a response is required, the parties jointly purchased real estate located at 340 Cragmoor Road, York Haven, PA on June 30, 1999. This home was sold on June 14, 2002. The funds from this sale were then used to purchase the marital residence where the parties currently reside. 10. No response required. 305722-1 WHEREFORE, Respondent Amy M. Ewing respectfully requests that this Honorable Court dismiss Defendant's Petition for Declaratory Judgment As To Marital Status, find that a valid common law marriage exists between the parties, and award Respondent the cost of this action and such further relief as the Court may deem just and proper. Respectfully submitted, METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By Andrew C. Spears, Esquire Attorney I.D. No. 87737 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Attorneys for Plaintiff Dated: May d?,, 004 305722-1 VERIFICATION I, Amy M. Ewing, verify that the statements made in the foregoing Response to Defendant's Petition for Declaratory Judgment As To Marital Status are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. 60 Amy M. wing Dated: 5-0-7-6q 305722-1 CERTIFICATE OF SERVICE AND NOW, this - 41&y of May, 2004, I, Andrew C. Spears, Esquire, of Metzger, Wickersham, Knauss & Erb, P.C., attorneys for Plaintiff, hereby certify that I served a copy of the within Response to Defendant's Petition for Declaratory Judgment As To Marital Status this day by depositing the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Linda A. Clotfelter, Esquire Law Offices of Craig A. Diehl 3464 Trindle Road Camp Hill, PA 17011 METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Andrew C. Spears, Esquire Attorney Id. No. 87737 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 305722-1 ? ? N O TI - r y- rt; i o AMY M .EWING, : IN THE COURT OF COMMON PLEAS OF Plaintiff, Respondent : CUMBERLAND COUNTY, PENNSYLVANIA VS. : NO. 04-1887 DANIEL R. ICKES. : CIVIL ACTION- LAW Defendant, Movant : DIVORCE - DECLARATORY JUDGMENT MOTION TO SCHEDULE HEARING AND NOW, comes, Defendant, Daniel R. Ickes, by and through his counsel, Linda A. Clotfelter, Esquire, and files this Motion to Schedule Hearing, respectfully stating as follow: 1. Movant is Daniel R. Ickes, Defendant in the above-referenced matter. 2. Respondent is Amy M. Ewing, Plaintiff in the above-referenced matter. Respondent initiated this proceeding by filing a Complaint in Divorce on April 28, 2004. 4. Movant filed and Answer as well as a Petition for Declaratory Judgment as to Marital Status on or about May 24, 2004. Respondent filed a Response to Movant's Petition for Declaratory Judgment as to Marital Status on or about May 27, 2004. 6. This matter is ripe for hearing by this Honorable Court. 7. Movant now seeks to have this matter heard by this Court and Respondent concurs with this Motion. WHEREFORE, Movant, Daniel R. Ickes, respectfully requests that this Court schedule a hearing on Movant's Petition for Declaratory Judgment as to Marital Status. Respectfully submitted, LAW OF LINDA A. CLOTFELTER ? : j X Date: -7 h p B/Ir /In/i Li a A. ClotfeTter, Esquire At rney I.D. No. 72963 j P21 East Trindle Road, Suite 100 Mechanicsburg, PA 17050 (717) 796-1930 tellephone (717) 796-1933 facsimile AMY M .EWING, Plaintiff, Respondent VS. DANIEL R. ICKES. Defendant, Movant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1887 : CIVIL ACTION - LAW : DIVORCE - DECLARATORY JUDGMENT CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date, a true and correct copy of the foregoing document was served upon the opposing parties by way of United States First Class Mail, postage prepaid, addressed as follows: Andrew C. Spears, Esquire Bruce J. Warshawsky, Esquire Stephen P. Miner, Esquire 3211 North Front Street Harrisburg, PA 17110-0300 (Counsel for Plaintiff) Date: LAW OF LINDA A. CLOTFELTER nda A. Clotfelter, Esquire Attorney I.D. No. 72963 5021 East Trindle Road, Suite Mechanicsburg, PA 17050 (717) 796-1930 telephone (717) 796-1933 facsimile c, f-T -Y7 - J- i ; t JUL 2 3 2CIV AMY M.EWING, : IN THE COURT OF COMMON PLEAS OF Plaintiff, Respondent : CUMBERLAND COUNTY, PENNSYLVANIA VS. : NO. 04-1887 DANIEL R. ICKES. : CIVIL ACTION - LAW Defendant, Movant : DIVORCE - DECLARATORY JUDGMENT ORDER AND NOW, this a? day of _ 2004, upon consideration of Defendant's Motion to Schedule Hearing on Defendant's Petition for Declaratory Judgment as to Marital Status, it is hereby ORDERED that the parties and their respective counsel shall appear at Court Room Number Q at the Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania 17013, on (A/J? a 3 2004, at 1 3y m. for a hearing before this Honorable Court on Defendant's Petition for Declaratory Judgment as to Marital Status. BY THE C o?-z?-a4 VNVA7) N'N' 3d l 1J 1?.Nf!Cd.7 .. , 65 -.Z Wd LZ IAP U0Z ,.ki:'1(3PdOi-jjUd 3d1 d0 301J40-4331;d AMY M. EWING, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL R. ICKES, DEFENDANT 04-1887 CIVIL TERM IN RE: DECLARATION AS TO MARRIAGE BEFORE BAYLEY J. JUDGMENT AND NOW, this daY of September, 2004, IT IS DECLARED THAT Daniel R. Ickes and Amy M. Ewing ARE NOT MARRIED. By t Court, I lrvv?l Edgar B. Bayley, J. inda A. Clotfelter, Esquire For Plaintiff rew C. Spears, Esquire For Defendant :sal C)q-63 _??? Alr?'r ? r' '„' ; Ff?n? Z I :£ Rd Z- d?S U0Z hb"?1Gidi;Nl;ud ?f'1.f0 AMY M. EWING, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL R. ICKES, DEFENDANT 04-1887 CIVIL TERM IN RE: DECLARATION AS TO MARRIAGE BEFORE BAYLEY J. OPINION AND JUDGMENT, Bayley, J., September 2, 2004:-- On April 28, 2004, plaintiff, Amy M. Ewing, filed a complaint in divorce against defendant Daniel R. Ickes. Plaintiff avers that the parties were married on July 28, 1992, in Enola, Cumberland County, Pennsylvania. Defendant filed an answer denying that he and plaintiff are married. He then sought a declaratory judgment that he is not married to plaintiff.' A hearing was conducted on August 23, 2004. Amy Ewing and Daniel R. Ickes never had a ceremonial marriage. They started dating in April, 1991. On July 28, 1992, they moved into a residence that he purchased. On February 13, 1995, they had a daughter, Cayenne Ickes. On June 30, 1999, they purchased and moved into a property in Newberry Township, York County. The deed was titled: The Divorce Code, at 23 Pa.C.S. 3306, provides: When the validity of a marriage is denied or doubted, either or both of the parties to the marriage may bring an action for a declaratory judgment seeking a declaration of the validity or invalidity of the marriage and, upon proof of the validity or invalidity of the marriage, the marriage shall be declar versed appeal the Ideclaration lshall be conclusive upon all personseconce ned n 04-1887 CIVIL TERM "DANIEL R. ICKES and AMY M. EWING, As Joint Tenants With The Right of Survivorship. On October 24, 1999, they had a son, Daniel Ickes. The parties had joint financial accounts. They have, for many years, employed an accountant to prepare their tax returns which they have always filed as single persons. In numerous documents executed over the years they are identified as single persons except for one signed by both of them on February 12, 2001. They both testified that a notarized document was used to obtain medical insurance for her through his employment. It sets forth: AFFIDAVIT OF COMMON-LAW MARRIAGE We, Daniel R. Ickes and Amy Ewing, the undersigned, being duly sworn, do hereby state that on 7/28/92, being freely able to contract, we entered into the relationship of husband and wife under common-law at Enola/East Pennsboro/West Fairview, PA, intending to 'be legally bound thereby and in full recognition of the rights, duties, obligations associated therewith. At that time we had the present intent to be married, evidenced by words in the present tense uttered with a view and purpose of establishing the relationship of husband and wife. Daniel Ickes testified that although they have discussed getting married over the years neither he nor Amy have ever agreed that they were married. They have not spoken words in the present tense to that extent. He does not introduce her to others as his wife. Amy Ewing testified that she has considered herself the wife of Daniel Ickes since July 28, 1992, when they moved into this property. When asked why there was no formal ceremony at that time, she testified: "Just the expense at the time with buying the new house and he just never formally asked me to marry him at that time." She testified that since they started living together, they have considered each other husband and wife and are known as such to their families and friends. Her mother testified that she has considered Daniel Ickes as her son-in- -2- 04-1887 CIVIL TERM the Affidavit Of N friends of either parry testified. When Amy was asked why law since 1992. 0 12, 2001, listed July Common Law Marriage which was signed by both of them on February 28, 1992 as the date of a common law marriage, she testified: "That is the date that we moved in together and began a monogamous relationship together." She was questioned: Q Is it your testimony that since this date then you considered yourself married to Mr. Ickes? A Yes. Q And you believe that he considered himself married as well? A Yes. In Bell v. Ferraro, 849 A.2d 1233 (Pa. Super. 2004), the Superior Court of Pennsylvania recently stated: A common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of yer v. husband and wife is created by such exchange. burden to payee a common law Staudenmayer, 714 A.2d 1016 (Pa.1998). The marriage rests on the viewed with great scrutiny. Id. (Footnoterom tted) such a claim must be re In Bell, Debra Bell appealed from an order of a trial court finding that no common law marriage existed between her and Edward Ferraro.2 The facts were: Both parties testified and also presented present d an ` Affidavit ofo support their respective positions. Appellant 2 The Superior Court noted: We recognize that the Commonwealth Court has purported to prospectively abolish common law marriage the context 8 A.2d Workers' Compensation Claims. PNC Bank Corp. not bound by (Pa.Cmwith.2004). We point out, however, that (1) we this are Court and our decisions of the Commonwealth Court , and (2) both Supreme Court have declined the invitation to abolish common law marriage, deferring such action to the legislature. See e.g., Staudenmayer, 714 A.2d 1016 (Pa. 1998); Interest of Miller, 448 A.2d 25 (Pa.Super.1982) -3- 04-1887 CIVIL TERM Common Law marriage" which was signed r both parties, as well to correspondence referring to the parties as married. Appellee presented deeds executed subsequent to the affidavit which e returns videnced the parties' purchase o which real estate as single individuals as well as t ellee'sstatus was listed as "Single." was listed as "Head of Household" and App Appellant testified that Regarding the "Affidavit of Common Law Marriage," the parties did indeed exchange the requisite verbs in P testified that the informed their friends and relatives of the marriage. Appellee to his health affidavit was executed solely to enable him to add Appellant insurance and that they did not present themselves to the community as married persons. previous relationship. Appellant had children from a p The Superior Court stated: Regarding the Affidavit of Common Law Marriage, we recognize that it is admissible and probative evidence. It is not, however, irrebuttable evidence. d as ows notarized the admi proe f of the facts stat d therein, also recognizes that a licumen tigantt"may be pertmitted P T f ed that nt case when ppel ee tes contradict other ap in the present f ti That is precisely what happened Appellant to be added to his health the affidavit was intended solely to allow App abthis use testimony insurance. As the trial court made a specific not find er of on that was more credible than Appellant's, discretion in the trial court's finding that the affidavit was not dispositive. In the case sub judice, both parties testified that their Affidavit of Common Law Marriage was used to add Amy to Daniel's health insurance provided by his employer. All other documents referring to the parties and executed by them over the years identify them as single persons. In 1999, almost seven years after they started living together they purchased property titled as joint tenants with right of survivorship, not as tenant by the entireties. While Amy maintains that she considers herself married she did not testify that she and Daniel ever exchanged words in the present tense, spoken with a specific purpose that a legal relationship of husband and wife was created. Daniel testified that no such words were ever spoken. His -4- 04-1887 CIVIL TERM testimony is credible and is supported by other credible evidence. The Affidavit Of Common Law Marriage was only executed for the purpose of her obtaining health insurance. The parties are not married at common law. Accordingly, the following judgment is entered. JUDGMENT AND NOW, this day of September, 2004, IT IS DECLARED THAT Daniel R. Ickes and Amy M. Ewing ARE NOT MARRIED. Linda A. Cloffelter, Esquire For Plaintiff Andrew C. Spears, Esquire For Defendant sal -5- Edgar B. Bayley, J. Curtis R. Long Prothonotary office of the Protbonotarp cumberlanb countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor 014- / 99 7 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 5TH DAY OF NOVEMBER 2007 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573