HomeMy WebLinkAbout09-1073,.
Karen W. Miller, Esquire
Attorney LD. No. 200037
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PA 17110
(717)232-7661
(717) 232-2766 (fax)
Attorney for Scot Irwin Burner
SCOT IIZWIN BURNER, IN THE COURT OF COMMON PLEAS
Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA
vs.
JULIE ANNE BURNER,
Defendant
No. p9 - 1 ~ 73 Civil Term
CIVIL ACTION -LAW
IN DNORCE
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 and a decree of divorce or annulment may be entered against
you by the Court. A judgment may also be entered against you for any other claim or relief
requested in these papers by the Plaintiff. You may lose money or property or other rights
important to you, including custody or visitation of your children.
When the ground for the divorce is indignities or irretrievable breakdown of the marriage,
you may request marriage counseling. A list of marriage counselors is available in the Office of
the Prothonotary, Cumberland County Court House, 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. IF
YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 South Bedford Street
Carlisle, PA 17113
(717) 249-3166
t
Karen W. Miller, Esquire
Attorney I.D. No. 200037
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
(717) 232-2766 (fax)
Attorney for Scot Irwin Burner
SCOT IRW1N BURNER,
Plaintiff,
vs.
JULIE ANNE BURNER,
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CNIL ACTION -LAW
IN DIVORCE
COMPLAINT UNDER SECTION 3301(c) or 3301(d) OF THE DIVORCE CODE
1. Plaintiff is Scot Irwin Burner, an adult individual who resides at 6326 Antilles
Court, Mechanicsburg Cumberland County, Pennsylvania, 17050.
2. Defendant is Julie Anne Burner, an adult individual who resides at 6225 Charing
Cross, Mechanicsburg Cumberland County, Pennsylvania, 17050.
3. Plaintiff and Defendant have been bona fide residents of the Commonwealth of
Pennsylvania for at least six (6) months immediately previous to the filing of this Complaint.
4. The Plaintiff and Defendant were married on January 16, 1993, in Lemoyne,
Cumberland County, Pennsylvania.
5. There have been no prior actions in divorce or annulment between the parties.
6. The Defendant is not a member of the armed forces of the United States or any of its
allies.
7. The Plaintiff avers that the marriage is irretrievably broken.
8. 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. The Plaintiff does
not desire counseling.
COUNT I -EQUITABLE DISTRIBUTION
9. Paragraphs 1 through 8 above are incorporated herein by reference.
10. During the marriage, Plaintiff and Defendant have acquired various items of marital
property, both real and personal, which are subject to equitable distribution under Section 3502 of
the Divorce Code.
WHEREFORE, Plaintiff requests Your Honorable Court to:
A. Enter a Decree in Divorce;
B. Equitably distribute all property, both personal and real, owned by the parties; and
C. Grant such further relief as the Court may deem equitable and just.
Respectfully submitted,
Date: 2 ~~ Z00~1 By: (~1~-- w . ~~~
aren W. Miller, Esquire
Attorney I. D. # 200037
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PA 17110-1533
(717) 232-7661
Attorney for Plaintiff, Scot Irwin Burner
09037-001/144784
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VERIFICATION
I, Scot Irwin Burner, verify that the averments made in this Complaint 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.
Date: 2 ~~61 a `7 ~ 7~ ~ ~~
Scot Irwin Burner
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Andrew C. Sheely, Esquire
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
PA ZD NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
SCOT IRWIN BURNER,
Plaintiff
vs.
JULIE ANNE BURNER,
Defendant
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AFFIDAVIT OF CONSENT `~'_
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1. A Complaint in Divorce under Section 3301(c) of~ie ~
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Divorce Code was filed on February 20, 2009. ~ rn
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - CUSTODY
09 - 1073 CIVIL TERM
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
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true and correct. I understand that false statements herein a.re
made subject to the penalties of 18 Pa.C.S.A. Section 4904
relating to unsworn falsification to the authorities.
DATE : ~ ~'~ 1 ~ ~ ~ . ~'1--~. (~-~
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Scot Irwin Burner
Andrew C. Sheely, Esquire
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
PA ID NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
SCOT IRWIN BURNER,
Plaintiff
vs.
JULIE ANNE BURNER,
De f e rtdant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - CUSTODY
09 - 1073 CIVIL TERM
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WAIVER OF NOTICE OF INTENTION TO REQUEST ``'
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ENTRY OF A DIVORCE DECREE UNDER f='~_
§3301 (C) OF THE DIVORCE CODE '~~'
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1. I consent to the entry of a final decree of
divorce without notice.
2. I understand that I may lose rights concerning
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alimony, division of property, lawyer's fees or expenses if I do
not claim them before a divorce decree 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.A. Section 4904
relating to unsworn falsification to the authorities.
DATE : I D `~ ~ ~~~- ~"" ~,^''^' 1 ~~
Scot Irwin Burner
Oq-1o73 C~v~~ Teri
SEPARATION AND PROPERTY SETTLEMENT AGREEMENT
THIS AGREEMENT, made this ~~~ day of October, ?~.409„~,
by and between SCOT IRWiN BURNER, hereinafter referred tp ~~s
"HUSBAND", and JULIE ANNE BURNER, hereinafter referred ~o as ~F= ;~y
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WITNESSETH; :- `., -;=~~
WHEREAS, the parties hereto are Husband and Wifs, ~ =.~
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having been married on January 16, 1993, in Lemoyne, `~' ~`
Pennsylvania, and having initially separated on or about
February 15, 2009, reconciling for several months and final
separating on or about August 1, 2009; and
WHEREAS, Husband and Wife are the parents of two minor
children, namely Benjamin S. Burner (D.O.B. 10/5/94) and Collin
M. Burner (D.O.B. 9/2/96); and
WHEREAS, certain differences have arisen by and
between Husband and Wife as a result of which they are currently
separated and the parties hereto are desirous of settling fully
and finally their respective financial and property rights and
obligations as between each other including, without limitation
by specification: the settling of all matters between them
relating to the ownership and equitable distribution of real and
personal property; the settling of all matters between them
relating to the past, present and future support, alimony and/or
maintenance of Husband by Wife or of Wife by Husband; and in
general, the settling of any and all claims and possible claims
by one against the other or against their respective estates;
and
WHEREAS, the parties being fully advised as to their
respective rights, duties and obligations growing out of their
marital status, particularly with respect to the relevant
sections of the Divorce Code, Act of April 2, 1980, P.L. 63, Act
No. 26, as amended, 23 P.S. 3101 et seq., and being fully aware
of their right to consult with or having consulted with their
respective legal counsel or advisors and having had the
opportunity and ability to request a full and complete
disclosure of income and assets from the other, and reviewing
this Agreement, have come to an agreement as to each and all of
their said matters of property and relations; and
NOW, THEREFORE, in consideration of the above recitals
and the mutual covenants hereinafter set forth, each of the
parties hereto intending to be legally bound hereby by affixing
their hands and seals agree as follows:
1. ADVICE OF COUNSEL
Husband and wife acknowledge that they have been given the
opportunity to obtain the advice of counsel regarding the
provisions of this Agreement and their legal effect in advance
of the date set forth above to permit independent review.
Husband and Wife acknowledge that Andrew C. Sheely, Esquire, is
counsel for Wife and that Husband has been advised of his right
to obtain legal counsel and that Husband is represented by Ira
H. Weinstock, Esquire, Ira H. Weinstock, P.C. Each party
acknowledges that he or she has had the opportunity to receive
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, and each
party acknowledges and accepts that this Agreement is fair and
equitable, after having the opportunity to receive such advice
and with such knowledge, and that execution of this Agreement is
not the result of any improper or illegal agreement or
agreements. In addition, each party hereto acknowledges that he
or she has had the opportunity to be fully advised by his or her
respective attorney of the impact of the Pennsylvania Divorce
Code, whereby the court has the right and duty to determine all
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marital rights of the parties including divorce, alimony,
alimony pendente lite, equitable distribution of all marital
property or property owned or possessed individually by the
other, counsel fees and costs of litigation and, fully knowing
the same and having the opportunity to be fully advised of his
or her rights available by and through the Pennsylvania Divorce
Code, each party hereto desires to execute this Agreement,
acknowledging that the terms and conditions set forth herein are
fair, just and equitable to each of the parties, and waives his
and her respective right to have the Court of Common Pleas of
Cumberland County, or any other court of competent jurisdiction,
make any determination or order affecting the respective party's
rights to a divorce, alimony, alimony pendente lite, equitable
distribution of all marital property, counsel fees and costs of
litigation.
2. SEPARATION
It shall be lawful for each party at all times hereafter to
live separate and apart from each other in such place or places
as he or she may from time to time choose or deem fit.
3. INTERFERENCE
Each party shall be free from interference, authority and
control, direct or indirect, by the other as fully as if he or
she were single and unmarried. Neither shall compel or endeavor
to compel the other to cohabitate or dwell with him or her, or
to in any way harass or malign the other.
4. WAIVER OF CLAIMS AGAINST ESTATES
Except as otherwise provided herein, Husband relinquishes
his inchoate intestate right and his right to act as a personal
representative in the estate of Wife, and Wife relinquishes her
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inchoate intestate right and her right to act as a personal
representative in the estate of Husband. The parties agree that
each party shall bear counsel fees and costs incurred by that
party. Each of the parties hereto, for himself or herself, his
or her heirs, executars, administrators or assigns, does remise,
release, quit claim and forever discharge the other party
hereto, his or her heirs, executors, administrators or assigns
or any of them, of any and all claims, demands, damages,
actions, causes of actions, suits, at law or equity, of
whatsoever kind or nature, for or because of any matter or thing
omitted or suffered to be done by said other party prior to and
including the date hereof, except that this release shall in no
way exonerate or discharge either party hereto from the
obligations and promises made and imposed by reason of this
Agreement and shall in no way affect any cause of action in
absolute divorce which either party may have against each other.
5. MARITAL AND NON-MARITAL ASSETS, PROPERTY AND DEBTS
The parties hereto acknowledge that during their marriage
they have acquired, individually or jointly, various marital
assets and the increased value of non-marital assets and
property, including the following:
(A) Jointly owned Real Estate located at 6225 Charing
Cross, Mechanicsburg, Hampden Township, Cumberland County,
Pennsylvania, with an estimated value of $300,000.00; and
(B) Husband`s condominium located at 6336 Galleon
Drive, Mechanicsburg, Hampden Township, Cumberland County,
Pennsylvania, with an estimated value of $181,616.00; and
(C) Wife's MorganStanley SmithBarney Roth IRA account
with a pretax account balance of $2,791.52; and
(D) Wife's American Funds 401K with an pretax account
balance of $43,046.13; and
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(E) Wife's New York Life Annuity IRA with a pretax
balance of $9,045.68; and
(F) Wife's P5ECU checking account with a balance of
$364.95; and
(G) Wife's Members 1st checking/money market account
with a balance of $140,970.05; and
(H) Wife's Mutual Funds with MorganStanley SmithBarney
with a premarital inheritance value of $56,000, and a
current value of $45,636.00 reflecting a $10,879.72 loss;
and
(I) Wife's American Funds Money Market with an account
balance of $105,016.89; and
(J) Husband's HSA (Health Savings Account) with VIST
Bank with an account balance of $2,800.00; and
(K) Husband's Members 1st Checking account with an
account balance of $2,000.00; and
(L) Husband's Members 1st savings account with an
account balance of $142,000.00; and
(M) Husband's Fidelity SEP IRA with a pretax balance
of $3,500.00; and
(N) Husband's Fidelity Roth IRA with a pretax balance
of $1,647.86; and
(O) Husband's PNC 401(K) with a pretax balance of
$85,391.37; and
(P) Husband's Argosy Realty Investment of
$92,395.00.00; and
(Q) Husband's Bank of America Investments - 500 shares
of KeyCorp, 1998.61 shares of NSHXX, with a pretax value of
$5,423.61; and
(R) Husband's Dayton Parts Company investment with a
value of $31,000.00; and
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(S) Husband's Belco Account with an estimated value of
$3,000.00; and
(T) Husband and Wife's jointly titled investment real
estate properties, including the following properties:
(i) 532 S. 15th Street, Harrisburg, Pennsylvania,
with monthly rental income of $700.00 and an estimated
value of $25,040; and
(ii) 1807 Walton Avenue, Altoona, Pennsylvania, with
monthly rental income of $450.00 and an estimated
value of $48,165.00.
(U) Miscellaneous personal property, including
furniture, antiques, curtains, rugs, clocks, artwork, lawn
and garden equipment, beds, garden and outside accessories,
personal items, dishes, tools, jewelry, increase in value
of non-marital property and equipment; and
(V) Wife's ChaseFreedom credit card with an
approximate payoff of $1,072.05; and
(W) Wife's Chase ToysRus credit with an approximate
payoff of $918.50; and
(X) Husband's Member's lst credit card with an
approximate payoff of $3,500.00; and
(Y) Husband's Chase credit card with an approximate
payoff of $179.00; and
(Z) Joint Mortgage obligation to Chase Home Finance
with an estimated payoff of $88,167.45, a mortgage
obligation encumbering the jointly owned real estate in
Mechanicsburg, Cumberland County, Pennsylvania; and
(AA) Joint Mortgage obligation to Chase Mortgage, with
an estimated payoff of $10,812.37, a mortgage obligation
encumbering the jointly owned real estate 532 S. 15th
Street, Harrisburg, Dauphin County, Pennsylvania; and
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(BB) Joint Mortgage obligation to Chase Home Finance
with an estimated payoff of $29,466.67, a mortgage
obligation encumbering the jointly owned real estate 1807
Walton Avenue, Altoona, Blair County, Pennsylvania; and
(CC) Husband's mortgage obligations (1st and 2nd
Mortgage) to Chase Home Financial with an estimated payoff
of $194,758.00 encumbering Husband's residence at 6336
Galleon Court, Mechanicsburg, Pennsylvania; and
(DD) Husband's 2008 Trailblazer (acquired through
trade-in of his 2010 Mazda) with an estimated value of
$22,000.00, or the proceeds thereof; and
(EE) Wife's 2007 Acura MDX with an estimated value of
$30,000.00, as encumbered by a loan with Acura with a
payoff of $6,736.52; and
(FF) Husband's Haulmark enclosed trailer and two (2)
recreational vehicles with an estimated aggregate value of
$5,800.00; and
(GG) Jointly owned corporation known as Central Penn
Mortgage Company with an estimated value of
$1,000.00; and
(HH) Burner Properties, LLC, owned by Husband and
Wife, including a checking account at Metro Bank, and. real
estate located at 2144 Kensington Street, Harrisbur ,
Pennsylvania, with monthly rental of $375.00 and an
estimated value of $25,000.00; and
(II) Husband's investment rental properties, including
the following properties titled in his name alone:
(i) 104 Walnut Street, Steelton, Pennsylvania, with
monthly rental income of $746.00 (suspended presently
due to renovations) and an estimated fair market value
of value of $60,000.00 after renovations; and
(ii) 2146 Berryhill Street, Harrisburg, Pennsylvania,
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with presently monthly rental income of $0.00 and
presently subject to an Agreement of Sale at
$44,000.00; and
(iii) 2712 Reel Street, Harrisburg, Pennsylvania, with
monthly rental of $750.00 and an estimated value of
$35,000.00.
Husband and Wife acknowledge that they are aware of their
respective rights pursuant to the Divorce Code of 1980, as
amended, to obtain formal actuarial valuations or appraisals of
the marital residence, any and all retirement assets, and other
items of marital property. However, the parties agree that they
will not undertake this expense and acknowledge that no
financial disclosures are attached to this agreement as separate
exhibits or schedules. The parties hereby waive any necessity
for completing or attaching any financial disclosure(s). Each
party further acknowledges the opportunity to attach a full and
complete financial disclosure and that such disclosure is not
desired to effectuate a fair and equitable resolution of their
marital rights, duties and obligations as provided in the
Divorce Code of 1980, as amended.
6. PERSONAL PROPERTY
Husband and Wife hereto mutually agree that they have
effected a satisfactory division of the furniture, household
furnishings, appliances and other household personal property
between them, and they mutually agree that each party shall from
and after the date hereof be the sole and separate owner of all
such tangible personal property presently in his or her
possession, whether said property is heretofore owned jointly or
individually by the parties hereto, and this Agreement shall
have the effect of an assignment or bill of sale from each party
to the other for such property as may be in the individual
possessions of each of the parties hereto. Neither party shall
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make any claim to any such items of marital property, or of the
separate personal property of either party, which are now in the
possession and/or under the control of the other.
Husband and Wife agree that Husband may remove their
son Ben's TV, bed, TV stand and one (1) dresser to Husband's
townhouse within a period of thirty days after execution of this
Agreement.
From and after the date of the signing of this
Agreement both parties shall have complete freedom of
disposition as to their separate property which is in their
possession or control pursuant to this Agreement and may
mortgage, sell, grant, convey or otherwise encumber or dispose
of such property, whether real or personal, whether such
property was acquired before, during or after marriage, and
neither Husband nor Wife need join in, consent to, or
acknowledge any bill of sale, title or other instrument of the
other pertaining to such disposition of property.
7. REAL ESTATE
A. 6225 Charing Cross, Mechanicsburg
(i) Exclusive Possession. Simultaneously with execution of
this Agreement, Husband and Wife agree that Wife shall be
entitled to exclusive possession of the marital residence
located at 6225 Charing Cross, Mechanicsburg, Cumberland County,
Pennsylvania as identified in paragraph 5(A) above. Husband
shall have no right to live, occupy, or reside within the
marital residence without the express written permission of
Wife.
(ii) Transfer of Title by deed. Simultaneously with the
execution of this Agreement, Husband and Wife agree that Husband
shall execute a deed transferring to Wife all of his rights and
title to the jointly owned real estate located at 6225 Charing
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Cross, Mechanicsburg, Pennsylvania. Wife shall assume and pay
all recording fees of the deed.
(iii) Refinance of Chase Mortgage by Wife. Within a period
of ninety (90) days after execution of this Property Settlement
Agreement, Wife agrees to refinance or payoff in full the
existing mortgage identified in paragraph 5 (T) encumbering the
jointly owned real estate at 6225 Charing Cross, Mechanicsburg,
Cumberland County, Pennsylvania. Husband shall cooperate with
the execution of all documents to assist with Wife's
responsibilities as set forth herein, if required.
B. 6336 Galleon Drive
(i) Exclusive Possession. Simultaneously with execution of
this Agreement, Husband and Wife agree that Husband shall be
entitled to exclusive possession of his residence located at
6336 Galleon Drive, Mechanicsburg, Cumberland County,
Pennsylvania as identified in paragraph 5(B) above. Wife shall
have no right to live, occupy, or reside within this residence
without the express written permission of Husband.
(ii) Waiver of Wife's equitable interest in 6336 Galleon
Drive, Mechanicsburg, Pennsylvania. By signing this Agreement,
Wife hereby waives any and all legal and equitable rights in the
real estate which she may have as a result of her marriage with
Husband. Wife agrees to execute any and all documents necessary
to waive her rights in the real estate upon reasonable request
of Husband.
(iii) Existing mortgages encumbering 6336 Galleon Drive.
Mechanicsburg, Pennsylvania. Husband hereby agrees to indemnify
and hold Wife harmless from any liability and claim which may
arise or result from the 1st and 2nd mortgages with Chase
Financial as identified in paragraph 5 (CC) above encumbering
the real estate located at 6336 Galleon Drive. Mechanicsburg,
Pennsylvania.
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8. DEBTS OF HUSBAND AND WIFE
Husband and Wife acknowledge that Wife has incurred various
marital credit card and consumer debts prior to separation.
Husband and Wife agree that Wife shall assume full liability and
hold Husband harmless from any liability for any and all
consumer or other credit debt in Wife's name, including the
credit card debts listed above as paragraph 5(V) and 5(W).
Husband and Wife agree that Husband shall assume full liability
and hold Wife harmless from any liability for any and all
consumer or other credit debt in Husband's name, including the
credit card debts listed above as paragraph 5(X) and 5(Y). Each
party represents and warrants to the other that he or she has
not incurred any debt, obligation or other liability, other than
those described in this Agreement, on which the other party is
or may be liable. A liability not disclosed in this Agreement
will be the sole responsibility of the party who has incurred or
may hereafter incur it, and such party agrees to pay it as the
same shall become due, and to indemnify and hold the other party
and his or her property harmless from any and all such debts,
obligations and liabilities.
9. MOTOR VEHICLES
(i) Possession Husband and Wife agree that Wife shall be
entitled to have the sole and exclusive control, benefit, use
and title of the 2007 Acura MDX or the proceeds thereof as
identified in paragraph 5(EE) above. Further, Wife agrees that
she shall hold Husband harmless from any liability associated
with 2007 Acura MDX, including but not limited to paying all
monthly car payments associated with the loan to Acura,
insurances and costs associated with operating said vehicle.
Husband and Wife agree that Husband shall be entitled to have
the sole and exclusive control, benefit, use and title of a 2008
Trailblazer acquired on or about October 22, 2009 through a
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trade of the 2010 Mazda, or the proceeds thereof, as identified
in paragraph 5 (DD) above, Husband's Haulmark enclosed trailer
and two (2) recreational vehicles, as identified in paragraph 5
(FF) above, and that he shall hold Wife harmless from any
liability associated with such motor vehicle, including but not
limited to paying all monthly car payments, (if any) insurances
and costs associated with operating said vehicle.
(ii) Motor Vehicle Insurance. Each party shall remove the
other from any policy of insurance associated with his or her
motor vehicle within a period of thirty (30) days from the date
of this Agreement.
10. Division/Distribution of Bank Accounts
Husband and Wife agree that any and all savings and
checking accounts identified in paragraph 5 above, owned by them
jointly or singly, have been divided to their mutual and
individual satisfaction. Husband and Wife agree that Wife shall
maintain her bank checking and savings accounts identified above
in paragraph 5(F) and 5(G) and that Husband shall maintain his
bank checking and savings account identified in paragraphs 5(J),
5(K), 5(L), 5(S) and 5(HH).
Husband agrees that he shall pay Wife an amount of Eighteen
Hundred dollars ($1,800.00) on or before October 31, 2009.
11. Division/Distribution of 401(k), IRA and other
retirement and investment accounts.
(i) Wife's MoraanStanlev SmithBarnev Roth IRA.
Husband and Wife agree that Wife shall be entitled to
control, maintain, use and dispose of her Wife's
MorganStanley SmithBarney Roth IRA identified above in
paragraph 5(C) without further demand, claim or interest of
Husband. Husband further agrees to execute any necessary or
required waiver, document, form or affidavit, upon
presentation from Wife, to forever waive, relinquish or
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release any of Husband's interest or claim in Wife's
MorganStanley SmithBarney Roth IRA as identified above.
(ii) Wife's American Funds 4O1K. Husband and Wife
agree that Wife shall be entitled to control, maintain, use
and dispose of her Wife's American Funds 401K identified
above in paragraph 5(D) without further demand, claim or
interest of Husband. Husband further agrees to execute any
necessary or required waiver, document, form or affidavit,
upon presentation from Wife, to forever waive, relinquish
or release any of Husband's interest or claim in wife's
American Funds 401K as identified above.
(iii) Wife's New York Life Annuity IRA. Husband and
Wife agree that Wife shall be entitled to control,
maintain, use and dispose of her Wife's New York Life
Annuity identified above in paragraph 5(E) without further
demand, claim or interest of Husband. Husband further
agrees to execute any necessary or required waiver,
document, form or affidavit, upon presentation from Wife,
to forever waive, relinquish or release any of Husband's
interest or claim in Wife's New York Life Annuity IRA as
identified above.
(iv) Wife's American Funds Money Market. Husband and
Wife agree that Wife shall be entitled to control,
maintain, use and dispose of her Wife's American Funds
Money Market identified above in paragraph 5(I) without
further demand, claim or interest of Husband. Husband
further agrees to execute any necessary or required waiver,
document, form or affidavit, upon presentation from Wife,
to forever waive, relinquish or release any of Husband's
interest or claim in Wife's American Funds Money Market as
identified above.
13
(v) Husband's Dayton Parts Company Husband and Wife
agree that Husband shall be entitled to contral, maintain,
use and dispose of Husband's Dayton Parts Company
investment account as identified above in paragraph 5 (R)
without further demand, claim or interest of Wife. Wife
further agrees to execute any necessary or required waiver,
document, form or affidavit, upon presentation from Wife,
to forever waive, relinquish or release any of Wife
interest or claim in Husband's Dayton Parts Company account
as identified above; and
(vi) Husband's Fidelity SEP IRA.
Husband and Wife agree that Husband shall be entitled
to control, maintain, use and dispose of her Husband's
Fidelity SEP IRA identified above in paragraph 5(M) without
further demand, claim or interest of Wife. Wife further
agrees to execute any necessary or required waiver,
document, form or affidavit, upon presentation from
Husband, to forever waive, relinquish or release any of
Wife's interest or claim in Husband's Fidelity Roth IRA as
identified above.
(vii) Husband's Fidelity Roth IRA.
Husband and Wife agree that Husband shall be entitled
to control, maintain, use and dispose of Husband's Fidelity
Roth IRA identified above in paragraph 5(N) without further
demand, claim or interest of Wife. Wife further agrees to
execute any necessary or required waiver, document, form or
affidavit, upon presentation from Husband, to forever
waive, relinquish or release any of Wife's interest or
claim in Husband's Fidelity Roth IRA as identified above.
(viii) Husband's PNC Bank 401{K).
Husband and Wife agree that Husband shall be entitled
to control, maintain, use and dispose of Husband's PNC Bank
14
401(k) identified above in paragraph 5(0) without further
demand, claim or interest of Wife. Wife further agrees to
execute any necessary or required waiver, document, form or
affidavit, upon presentation from Husband, to forever
waive, relinquish or release any of Wife's interest or
claim in Husband's PNC Bank 401(k) as identified above.
(ix) Husband's Argosy Realty Investment
Husband and Wife agree that Husband shall be entitled
to control, maintain, use and dispose of Husband's Argosy
Realty Investment identified above in paragraph 5(P)
without further demand, claim or interest of Wife. Wife
further agrees to execute any necessary or required waiver,
document, form or affidavit, upon presentation from
Husband, to forever waive, relinquish or release any of
Wife's interest or claim in Husband's Argosy Realty
Investment as identified above.
(x) Husband's Bank of America Investment
Husband and Wife agree that Husband shall be entitled
to control, maintain, use and dispose of her Husband's Bank
of America Stock identified above in paragraph 5(Q) without
further demand, claim or interest of Wife. Wife further
agrees to execute any necessary or required waiver,
document, form or affidavit, upon presentation from
Husband, to forever waive, relinquish or release any of
Wife's interest or claim in Husband's Bank of America Stock
as identified above.
12. Division/Distribution of real estate investment
properties
(A) 2144 Kensington Street, Harrisbur , Pennsylvania,
Husband and Wife agree and acknowledge that the real estate
investment property located at 2144 Kensington Street,
15
Harrisburg, Pennsylvania, owned by Burner Properties LLC as
identified in paragraph 5 (HH)(i) is presently under contract
for the sale price of $25,000.00. Settlement is scheduled to
occur on or ,before November 30, 2009. All net proceeds from the
sale of this rental property shall be equally divided at
settlement between Husband and Wife, or within a period of three
(3) days thereafter. Pending final settlement, Husband and Wife
agree that Burner Properties LLC shall share equally all profits
and losses associated with the rent of this property with
Husband and Wife. Further, Husband and Wife agree that Burner
Properties LLC shall issue appropriate tax forms reflecting and
equal division and assumption of any and all income tax
obligations associated with the monthly rental incomes for tax
year 2009, as well as any and all capital gains tax associated
with any tax associated with the sale of this property later
this year.
(B) 2146 Berryhill Street, Harrisbur Pennsylvania.
Husband and Wife agree and acknowledge that Husband's real
estate investment property located at 2146 Berryhill Street,
Harrisburg, Pennsylvania, is presently under contract for the
sale price of $44,000.00. Settlement is scheduled to occur on
or before November 30, 2009. All net proceeds from the sale of
this rental property shall be equally divided at settlement, or
within a period of three (3) days thereafter. Pending final
settlement, Husband and Wife agree that they shall share equally
all profits and losses associated with the rent of this
property. Further, Husband and Wife agree that they shall share
any and all income tax obligations associated with the monthly
rental incomes for tax year 2009, as well as any and all capital
gains tax associated with any tax associated with the sale of
this property later this year.
(C) 532 S. 15th Street, Harrisbur Pennsylvania,
16
Husband and Wife agree and acknowledge that the jointly
owned real estate investment property located at 532 S. 15th
Street, Harrisburg, shall be listed for sale within a period of
thirty (30) days after execution of this Agreement at an amount
no less than $24,000.00. All net proceeds from the sale of this
rental property shall be equally divided at settlement, or
within a period of three (3) days thereafter. Pending final
settlement, Husband and Wife agree that they shall share equally
all profits and losses associated with the rent of this
property, and Husband agrees to continue renting the property
during the sale period and Husband shall use any and all
reasonable efforts to sell the real estate so as to comply with
the intentions of this paragraph. Further, Husband and Wife
agree that they shall share any and all income tax obligations
associated with the monthly rental incomes for tax year 2009, as
well as any and all capital gains tax associated with any
subsequent capital gains tax with the sale of this property.
Husband and Wife agree that Husband shall continue renting this
property until sold and that Husband shall use all reasonable
efforts to sell the real estate so as to comply with the
intentions of this paragraph.
(D) 2712 Reel Street, Harrisbur , Pennsylvania
Husband and Wife agree and acknowledge that Husband's real
estate investment property located at 2712 Reel Street,
Harrisburg, Pennsylvania shall be listed for sale within a
period of thirty (30) days after execution of this Agreement at
an amount no less than $35,000.00. All net proceeds from the
sale of this rental property shall be equally divided at
settlement, or within a period of three (3) days thereafter.
Pending final settlement, Husband and Wife agree that they shall
share equally all profits and losses associated with the rent of
this property, and Husband agrees to continue renting the
17
property during the sale period and Husband shall use any and
all reasonable efforts to sell the real estate so as to comply
with the intentions of this paragraph. Further, Husband and
Wife agree that they shall share any and all income tax
obligations associated with the monthly rental incomes for tax
year 2009, as well as any and all capital gains tax associated
with any subsequent capital gains tax with the sale of this
property. Husband and Wife agree that Husband shall continue
renting this property until sold and that Husband shall use all
reasonable efforts to sell the real estate so as to comply with
the intentions of this paragraph.
(E) 1807 Walton Avenue, Altoona, Pennsylvania
Simultaneously with execution of this Agreement, Husband and
Wife agree that Husband shall be entitled to exclusive
possession of the jointly owned residential investment property
located at 1807 Walton Avenue, Altoona, Blair County,
Pennsylvania as identified in paragraph 5(T)(ii) above. Husband
and Wife agree that Wife shall execute a deed transferring to
Husband all of her rights and title to the jointly owned real
estate. Husband shall assume and pay all recording fees of the
deed. Lastly, within a period of ninety (90) days after
execution of this Property Settlement Agreement, Husband agrees
to refinance or payoff in full the existing mortgage identified
in paragraph 5 (BB) encumbering the jointly owned real estate at
1807 Walton Avenue, Altoona, Blair County, Pennsylvania. Wife
shall cooperate with the execution of all documents to assist
with Husband s responsibilities as set forth herein, if
required. Husband indemnify and shall hold Wife harmless from
any capital gains associated with the sale of this property
should such occur in the future. Any and all recording fees
shall be paid by Husband.
(F) 104 Walnut Street, Steelton, Pennsylvania.
18
Husband and Wife agree and acknowledge that Husband's solely
owned real estate investment property located at 104 Walnut
Street, Steelton, Pennsylvania shall be listed for sale within a
period of thirty (30) days after execution of this Agreement at
an amount no less than $60,000.00 after current renovations
absent mutual agreement by Husband and Wife. Husband agrees that
he shall pay Wife one-half of all net proceeds from the sale of
this rental property shall be equally at settlement, or within a
period of three (3) days thereafter. Pending final settlement,
Husband and Wife agree that they shall share equally all profits
and losses associated with the rent of this property, and
Husband agrees to continue renting the property during the sale
period and Husband shall use any and all reasonable efforts to
sell the real estate so as to comply with the intentions of this
paragraph. Further, Husband and Wife agree that they shall
share any and all income tax obligations associated with the
monthly rental incomes for tax year 2009, as well as any and all
capital gains tax associated with any subsequent capital gains
tax with the sale of this property. Husband and Wife agree that
Husband shall continue renting this property until sold and that
Husband shall use all reasonable efforts to sell the real estate
so as to comply with the intentions of this paragraph..
13. ALIMONY
Husband and Wife acknowledge that Husband's gross income
exceeded $90,000.00 on an annual basis and that Wife's gross
incom exceeded $50,000.00 on an annual basis during the past
several years. Husband and Wife acknowledge that they have been
advised to and are aware of the contents of the provisions of
the Divorce Code, as amended, in Pennsylvania, wherein
considerations are set forth in determining an appropriate
19
,,
amount, if any, to be paid in the form of spousal support and
alimony.
Commencing on February 1, 2010, Husband agrees to and shall
pay Wife, as alimony, the sum of one hundred ninety-four dollars
($194.00) per month, payable on the first day of each month,
beginning on February 1, 2010 and continuing thereafter for a
period of eighteen (18) consecutive months, ending on July 1,
2011. Alimony payments agreed to in this paragraph 11 shall be
modifiable at any time based upon a showing of changed
circumstances in Husband's income through Husband's filing of a
petition for a decrease during the term of alimony set forth
herein. Wife shall not seek nor be entitled to an increase in
the payment of alimony for any reason.
In addition, alimony awarded pursuant to this paragraph
shall cease and terminate upon either Husband or Wife's death,
Wife's remarriage or in the event Wife cohabitates with a person
of the opposite sex. The alimony payments awarded pursuant to
this paragraph are intended to be and shall be taxable to Wife's
income at the amount of $194.00 per month commencing as of
February 1, 2010, and deducted from Husband's income at the
amount of $194.00 per month commencing as of February 1, 2010,
in accordance with all tax laws and applicable sections of the
Internal Revenue Service Rules and Regulations.
This Agreement as been negotiated on the agreement that the
alimony payments described in this Paragraph 11 will be
deductible by Husband and taxable to Wife. Therefore, it is the
intention, understanding and agreement of the parties that the
payments described in this Paragraph 11, to the extent permitted
by law, shall constitute "periodic" payments payable by reason
of the "marital or family relationship" of the parties, as those
terms are defined in Section 71 of the Internal Revenue Code of
1954, as amended, and accordingly that all such payments shall
20
be included in Wife's gross income and deductible by Husband for
federal income tax purposes pursuant to Sections 71 and 215 of
the Internal Revenue Code of 1954, as amended, respectively.
Wife agrees to report payments received under this Paragraph 11
in her gross income for federal and, if applicable, for local
and state income tax purposes. Wife shall be solely responsible
for any and all income taxes with respect to any payments
received by her as alimony as required by this Paragraph 13.
The parties agree to reduce this Agreement to an Order of Court
simultaneously upon execution of this Agreement and file such
with the Court of Common Pleas along with the documents
necessary to conclude the divorce no later than January 15,
2010.
14. SUPPORT FOR CHILDREN
Husband and Wife agree that Husband shall pay Wife an
amount of child support of Eight Hundred Six Dollars ($806.00)
each month for the benefit of the minor children. This amount
shall be paid through the Cumberland County Domestic Relations.
Notwithstanding the present circumstances, Husband and Wife
understand and acknowledge the circumstances may necessitate an
adjustment in the amount of child support either upwards or
downwards, depending upon the childrens' circumstances and the
respective incomes and earning capacities of the parties hereto
in accordance with general support standards. In the event
Husband and Wife cannot agree upon the amount of child support
at any time hereafter, Husband and Wife agreed that nothing set
forth in this Agreement shall prejudice the right of either
party to file a petition for modification of entry of an amount
of child support, at any time, in any court of appropriate
jurisdiction.
15. CUSTODY
21
Husband and Wife agree and acknowledge that they intend to
share legal and physical custody of the minor children. For
purposes of physical custody, Husband and Wife agree that they
shall use a 2-2-3 schedule meaning that the children shall
alternate two day periods, namely Monday - Tuesday, and
Wednesdays and Thursdays, followed by the weekend commencing on
Friday and continuing through Sunday evening. Husband and Wife
agree and acknowledge that either parent may petition the Court
of Common Pleas of Cumberland County at any time to change the
terms of this Agreement in the event the Husband and Wife cannot
agree on custody terms in the best interest of the minor
children.
16. Miscellaneous
(A) Intent as to division of property The division of
existing marital property is not, except as otherwise expressly
provided herein, 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. As a
part of an equitable division of the marital properties and the
marital settlement herein contained, the parties hereto agree to
save and hold each other harmless from all income taxes assessed
against the other resulting from the division of the property as
herein provided.
(B) Taxes. Husband and Wife represent and warrant to the
other that they shall file a joint income tax return for tax
year 2009 (which requires the entry of a final divorce in 2010)
and separate income tax returns thereafter. Husband and Wife
shall mutually cooperate with filing their respective tax
returns. .Wife shall claim all taxes on her residence in 6225
Charing Cross, Mechanicsburg, Pennsylvania, in 2010 and
thereafter. Husband shall claim all interest and taxes
22
associated with 6336 Galleon Drive, Mechanicsburg, Pennsylvania,
in 2010 and thereafter. Information maintained by one party
necessary to complete any income tax return shall not be
unreasonably withheld upon the request of either party.
(C) Non-marital Assets. Wife shall maintain all of her
right, title and interest in Wife's Mutual Funds with
MorganStanley SmithBarney with a premarital inheritance value of
$66,000, and a current value of $43,777.00 reflecting a
$12,667.00 loss, as identified in paragraph 5(H) without further
claim from Husband.
(D) Children's TAP 529 Plans and colle a savin s accounts
Husband and Wife acknowledge each has established TAP 529 plans
or other college savings accounts for their children and that an
amount of at least $75,683.00 presently exists in these
accounts. Husband and Wife agree that the party named as
custodian of the existing 529 college savings plan or other
college savings plan shall continue to manage the accounts set
up for the benefit of the minor children. Neither Husband nor
Wife shall have any obligation to contribute any funds towards
the benefit of either or both child's college or post high
school education. However, nothing herein shall prevent either
party from maintaining or voluntarily contributing to an
existing TAP 529 plan or other form of college savings account.
(E) Central Penn MortQaQe Company. Husband and Wife
agree that Husband shall immediately resign as a corporate
officer of Central Penn Mortgage Company identified in paragraph
5 (CC) above. Husband shall transfer any and all ownership in
any company stock in his name to Wife prior to or simultaneously
with execution of this Property Settlement Agreement. Husband
and Wife agree that Wife's income from the corporation in 2009
shall be part of the parties joint income tax return filings.
Wife shall indemnify and hold Husband harmless from any and all
23
2010 income tax, corporate tax or stock tax arising in
association with Wife's ownership and control of the
Corporation.
(F) Burner Properties, LLC.
Husband and Wife agree that all real estate owned by Burner
Properties, LLC shall be listed for sale and sold as soon as
conveniently can be done under the terms and conditions set
forth in paragraph 12(A). Upon the final settlement of the
property owned by Burner Properties LLC, Wife shall assign all
of her units of ownership to Husband. Pending the sale of the
last property owned by Burner Properties LLC, all profits,
losses, expenses and incomes shall be equally shared and paid to
the parties from Burner Properties, LLC.
17. HEALTH INSURANCE
Husband and Wife agree that Husband shall maintain Wife on
his health insurance through his employer until the entry of a
Decree in Divorce which is intended to occur in January 2010.
Husband and Wife acknowledge that both parties shall assume full
responsibility for his or her health insurance without further
claim of the other party upon the entry of a Decree in Divorce.
However, nothing herein shall prevent Husband or Wife from
seeking health insurance through COBRA or any other Federal or
State law through their respective current or former employers,
if applicable, at his or her cost through a single COBRA rate.
18. SUBSEQUENT DIVORCE
A decree in divorce entered by a court of competent
jurisdiction to either party shall not suspend, supersede or
affect the terms of this Agreement. Both parties agree, if
requested, to enter a Consent Order or Orders concerning the
provisions of this Agreement in the Court of Common Pleas of
Cumberland County, Pennsylvania, as a part of a resolution of
24
any divorce action filed or to be filed. This Agreement, and
the terms and conditions contained herein, as well as the
enforcement of said terms and conditions, shall not be and
is/are not contingent upon the granting of a Divorce Decree to
either party by any Court of competent jurisdiction.
19. ENTIRE AGREEMENT
This Agreement contains the entire understanding of the
parties and there are no representations, warranties, covenants
or undertakings other than those expressly set forth herein.
Husband and Wife acknowledge and agree that the provisions of
this Agreement with respect to the distribution and division of
marital and separate property are fair, equitable and
satisfactory to them based on the length of their marriage and
other relevant factors which have been taken into consideration
by the parties. Both parties hereby accept the provisions of
this Agreement with respect to the division of property in lieu
of and in full and final settlement and satisfaction of all
claims and demands that they may now have or hereafter have
against the other for equitable distribution of their property
by any court of competent jurisdiction pursuant to Section 3502
of the Divorce Code or any amendments thereto. Husband and Wife
each voluntarily and intelligently waive and relinquish any
right to seek a court ordered determination and distribution of
marital property, but nothing herein contained shall constitute
a waiver by either party of any rights to seek the relief of any
court for the purpose of enforcing the provisions of this
Agreement.
20. VOLUNTARY EXECUTION
The provisions of this Agreement and their legal effect
have been fully explained to the parties by their respective
counsel, and each party acknowledges that the Agreement is fair
and equitable, that it is being entered into voluntarily, with
25
full knowledge of the assets of both parties, and that it is not
the result of any duress or undue influence. The parties
acknowledge that they have been furnished with all information
relating to the financial affairs of the other which has been
requested by each of them or by their respective counsel.
21. ADDITIONAL INSTRUMENTS
Husband and Wife shall from time to time at the request of
the other, execute, acknowledge and deliver to the other party
any and all further instruments that may be reasonably required
to give full force and effect to the conditions of this
Agreement.
22. MODIFICATION AND WAIVER
Any 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 default of the same or similar nature. The
waiver of any term, condition, clause or provision of this
Agreement shall in no way be deemed or construed as a waiver of
any other term, condition, clause or provision of this
Agreement.
23. BREACH
If either party hereto breaches any provision of this
Agreement, the other party shall have the right, at his or her
election, to sue for such breach, or seek other remedies or
relief as may be available to him or her. Both parties agree and
are aware that noncompliance with any provision of this
Agreement permits either party to pursue appropriate legal
remedies, including sanctions as set forth in 23 Pa. C.S.A.
X3105.
26
-. ~ ,
Each party further hereby agrees to save and hold harmless
the other party from any and all attorneys' fees, costs and
legal expenses and expenses that either may sustain, or incur or
become liable or answerable for, in any way whatsoever, or shall
pay upon, or in consequence of, any default or breach by the
other of any of the terms or provisions of this Agreement by
reason of which either party shall or shall be obliged to retain
or engage counsel to initiate or maintain or defend proceedings
against the other at law or equity or both or in any way
whatsoever, provided that the party who seeks to recover such
attorneys' fees, costs and legal expenses and expenses must
first be successful in whole or in part, before there would be
any liability for attorneys' fees, costs, legal expenses and
expenses. It is the specific agreement and intent of the
parties that a breaching or wrongdoing party shall bear the
burden and obligation of any and all costs and expenses and
counsel fees incurred by the other party in endeavoring to
protect and enforce his or her rights under this Agreement.
All remedies provided by law and all remedies provided for
in this Agreement for enforcement of the Agreement shall be
deemed to be cumulative and the exercise of one remedy shall not
bar or prevent the pursuit of any other remedy and either party
may elect to pursue such remedies simultaneously and the
exercise of a remedy one or more times shall not exhaust its use
or prevent further pursuit of such remedy.
24. ATTORNEY FEES ANn rncmc
Husband and Wife shall each assume their respective counsel
fees as part of the divorce action commenced in the case.
25. DESCRIPTIVE HEADINGS
The descriptive headings used herein are for convenience
only. They shall not have any affect whatsoever in determining
the rights or obligations of the parties.
27
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
a separate and independent covenant and agreement.
28. NON-MERGER This Agreement shall not merge with any
subsequent Decree in Divorce between the parties but shall
survive such decree and be entirely independent thereof. This
Agreement shall be incorporated for the purposes of enforcement
only into any Decree in Divorce which may be entered with
respect to the parties, but shall not be deemed to have merged
with such Decree.
29. APPLICABLE LAW
This Agreement shall be construed under the laws of the
Commonwealth of Pennsylvania. For contract interpretation
purposes, this Agreement was prepared jointly for the benefit of
both parties by his and her attorneys.
30. VOID CLAUSES
If any term, conditions, clause or provision of this
Agreement shall be determined or declared to be void or invalid
in law or otherwise, then only that term, condition, clause or
provision shall be stricken from this Agreement and in all other
respects this Agreement shall be valid and continue in full
force, effect and operation.
31. BINDING AGREEMENT
This Agreement shall be binding and shall extend to the
benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
28
• .,
IN WITNESS WHEREOF, the parties have hereunto set their
hands and seals the day and year first above written.
WITNESS:
~~
~~,X~/"" ~'y ~~"'~ ( SEAL )
Scot Irwin Burner
t~ti~l/I' W V ( SEAL )
Julie Anne Burner
29
1 ~.
COMMONWEALTH OF PENNSYLVANIA
SS.
COUNTY OF J~ owl 11 ~ /- ,
On this, the ~~'~ day of OG-~~j-~~ 2009, before
me, the undersigned officer, personally appeared Scot Irwin
Burner, known to me (or satisfactorily proven) to be the person
whose name is subscribed to the within instrument and
acknowledged that he executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and
official seal.
(~MMMONNfEALTH OF PENNSYLVANIA ~
NOTARIAL SEAL ~L; nQ(q~, ~~(, Z~
LINDA WITHER, NOTARY PUBLIC
OF HARRISBURG, DAUPHIN COUNTY Notary Public
HY (88WN EXPIRES MAR YO; 2012
My Commission Expires: -~~a~l~G1~.,.
COMMONWEALTH OF PENNSYLVANIA
SS.
COUNTY OF ~ar~~l-~Yl ,
On this, the o~- (~ day of ~~-~~~~ 2009,
before me, the undersigned officer, personally appeared Julie
Anne Burner, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within instrument and
acknowledged that she executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my-hand and
official seal.
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL -
LINDA YNTMER, NOTARY PUBLIC
CITY OF HARRISBURG, DAUPHIN COUNTti
HY COMMISSION EXPIRES MAR Z0; 2012
Notary Public
My Commission Expires: ~/~c~1o2~1 a
30
[N THE COURT OF COMMON PLEAS
SCOTT IRWIN BURNER CUMBERLAND COUNTY, PENNSYLVANIA
V S.
CIVIL DIVISION
JULIE ANNE BURNER NO. 09 - 1073 CIVIL TERM
C7 ~ _;
C- •--
- ~
PRAECIPE TO TRANSMIT RECORD -=~' -~ -='
rv .-~
_,
To the Prothonotary: _ ~~ '
Transmit the record, together with the following information to the court for entry of a;:divorce~ , -~=~
decree: .~_ ~ x
~; , ~ .,
1. Ground for divorce:
Irretrievable breakdown under 3301 (c)
~~~~~
(Strike out inapplicable section)
2. Date and manner of service of the complaint: ~etendant's attorney accepted service on
February 26, 2009.
3. Complete either paragraph (a) or (b).
a. Date of execution of the affidavit of consent required by 3301 (c) of the
Divorce code:
by plaintiff 01 /04/10 ) by defendant 01 /19/10
b. (1) Date of execution of the affidavit required by 3301 (d) of the Divorce Code:
(2) Date of filing and service of the plaintiff s affidavit upon the respondent:
4. Related Cla11nS pending: All claims resolved pursuant to Separation and Property Settlement Agreement
dated October 29, 2009 and filed with this Court.
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 of plaintiffs Waiver of Notice in 3301 (c) Divorce was filed with the
Prothonotary: January 13, 2010
Date defendant's Waiver of Notice in 3301 (c) divorce was filed with the
Prothonotary: January 21, 2010
Attorney for
i i
CU, C. Sheely, Esquire
127 S. Market Street
P.O. Box 95?( n
Mechanicsburg, PA 17055
G.: + +iiJ -J
PA ID NO. 62469
717-697-7050 Phone f ' r
717-697-7065 (Fax)
lr 1-1'41-j fUV
SCOT IRWIN BURNER, : IN THE COURT OF COMMON PLEAS OF
Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA
VS. CIVIL ACTION - CUSTODY
JULIE ANNE BURNER, 09 - 1073 CIVIL TERM
Defendant/Petitioner
PETITION FOR MODIFICATION OF CUSTODY AGREEMENT AND ORDER
AND TO HOLD RESPONDENT IN BREACH/CONTEMPT OF AGREEMENT
AND NOW comes, Defendant/Petitioner, Julie Anne Burner, by her
attorney Andrew C. Sheely, Esquire, and hereby submits this
Petition for Modification of Custody Order and to Hold Respondent
in Breach/Contempt and in support thereof, states the following:
1. Petitioner is Julie Ann Burner (hereinafter "Mother"), an
adult individual residing at 6225 Charing Cross, Mechanicsburg,
Cumberland County, Pennsylvania.
2. Respondent is Scot Irwin Burner (hereinafter "Father"), an
adult individual residing at 6336 Galleon Ct., Mechanicsburg,
Cumberland County, Pennsylvania.
3. Father originally initiated a custody action docketed to
09-451, a matter suspended by action of Father and Mother during an
attempted reconciliation.
4. Upon failure of reconciliation, Father initiated a divorce
complaint docketed to 09-1073.
04- a(03S3?1:
5. As a result of various negotiations, Father and Mother
executed an extensive Property Settlement Agreement on October 29,
2009, which included paragraph 15 addressing shared legal and
physical custody of the parties minor children BENJAMIN S. BURNER
(DOB 10/5/1994) and COLLIN M. BURNER (DOB 9/2/1996). Paragraph 15
is attached hereto as Exhibit "°A".
6. On February 2, 2010, the Honorable Kevin A. Hess entered a
Decree in Divorce incorporating the terms of the October 29, 2009
Property Settlement Agreement, including paragraph 15 addressing
custody.
7. Father and Mother generally complied with paragraph 15 of
the October 29, 2009 Property Settlement Agreement through June 21,
2011.
COUNT I. BREACH OF AGREEMENT/CONTEMPT
8. On or about :Tune 21, 2011, Father and Mother agreed that
Collin M. Burner, age 14, could pimar,J_y reside with Father on a
temporary, trial basis througt summer vacation prior to
commencement of the 2011-2012 school year wherein Collin would
attend the 9th Grade at Cumberland Valley High School.
9. After June 21, 2011, Mother_ learned that Father had no
intention of permitting Collin M. Burner to reside with Mother at
any time.
10. After June 21, 2( .j , , Mot; i.er ' eay nevi that Father had told
Collin M. Burner that he no lonaer ad to comply with any
directives of the October 29; 2009 Agreement or requests of Mother.
11. Mother believes and therefore avers that Father will no
longer comply with the terms of t-nr: Oct-z)her 29, 2009 Agreement as
incorporated in the February 2 < ? 0101 Decree in Divorce.
12. Father has not files: for modification as
required by paragraph 15 of the October 29, 2009 Agreement.
13. Father has purposefu]L-1y, inteni:ionally and willingly
allowed the minor child Collin A. Burner t.o make his own decisions
regarding custody in contempt Gf -he prior agreement and decree
incorporating the tents therein.
14. Mother believes and therefore avers that Father has no
intention to directing that the iri.nor child comply with October 29,
2009 Agreement, including shared legai and physical custody with
Mother, during the school year.
15. Father has advised mother that he will not discuss
custody issues with Mother and Respondent has been in contempt of
the October 29, 2009 Agreement and February 2, 2010 decree in that:
A. Father has refused to permit Mother to exercise any
custodial rights; and
B. Father has refused co keep Mother appraised of
issues concerning the minor child.
WHEREFORE, Petitioner respectfully request this Court to find
that Respondent has breached and been contemptuous of the October
29, 2009 Agreement as incorporated within the terms of the February
2, 2010 Decree in Divorce, and to award Petitioner counsel fees and
to impose whatever additional sanctions it deems appropriate in
accordance with the Agreement or otherwise.
COUNT II. MODIFICATION OF CUSTODY AGREEMENT AND ORDER
16. Paragraphs 1 - 15 are incorporated herein as if set forth
at length.
17. After June 21, 2011, Mother discovered that Father was
failing to provide safe, adequate and reasonable supervision of
Collin throughout the summer months by:
a. Failing to require Collin to adhere to Hampden Township's
curfew of 11:00 p.m.; and
b. Failing to provide any supervision of the minor child
while Father attended various employment jobs and social
activities; and
c. Failing to provide any supervision of the minor child's
cell phone and texting usage.
18. Father has refused to discuss custody issues directly
with mother and has advised Mother to discuss custody issues
directly with Collin.
19. Father has encouraged a deterioration of the relationship
between Mother and Collin by:
4
a. Advising the child that -e czsxi decide on the terms of the
custodial relationship with mother; and
b. Permitting the child to avoid reasonable and necessary
curfews, cell phone usage and social limitations; and
c. Placing the child in adult situations without proper care
and supervision.
20. Father, and Mother's o.letest child has primarily resided
with mother since June of 2011.
21. Father's unilateral retusa`t to comply with the October
29, 2009 Agreement custody agreement as to Collin has damaged the
relationship between the children.
22. Father has refused tc. ;.ake Collin to required and needed
orthodontia appointments.
23. Father is frequently unava:z-fable t_o assist with Collin's
extracurricular activities.
24. Father has permitted, i-r,7e ,,,,irior 6hi.ld to operate Father's
kiosk at the Capital. City ;pia11. w4-Pen Father is unavailable.
WHEREFORE, pet _tiore r respect.-u.-I .y request this Court direct
the parties to attend a con :il.iation conference to address the
issues raised herein., and to modi t"y 1-..he terms and conditions of
paragraph 15 of October 29, 2009 Agreement through the entry of a
current custody order, ar a- Ay other relief
Respectfully submitted,
Date: August 2011
drew C. Sheely, squire
Attorney for Defendant/Petitioner
PA ID No. 62469
P.O. Box 95
127 South Market Street
P.O. Box 95
Mechanicsburg, PA 17055
717-697-7050
6
IN THE COURT OF COMMON PLI:AS OF
SCOT IRWIN BURNER CUMBERLAND COUNTY, PENNSYLVANIA
V.
JULIE ANNE BURNER NO 09 - 9073 CIVIL TERM
By the Court,
DIVORCE DECREE
AND NOW9 z° , ,it is ordered and decreed that
SCOT IRWIN BURNER plaintiff, and
JULIE ANNE BURNER , defendant, are divorced from the
bonds of matrimony.
Any existing spousal support order shall hereafter be deemed an order f3r
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."}
All claims settled pursuant to a Separation and Property Settlement Agreement executed on
October 29, 2009 and filed with this Court. Further, the Separation and Property Settle rent
Agreement executed on October 29, 2009 is incorporated in this Decree by reference and
the parties are-entered to comply with it.
i/-/
Att
1
Pi-07-1,o- nota
J.
y
SEPARATION AND PROPERTY SZTTL=MNT-AGRZZXZNT
THIS AGREEMENT, made this .2 I aay of October, 2009,
by and between SCOT IRWIN BURNER, hereinafter referred to as
"HUSBAND", and JULIE ANNE BURNER, hereinafter referred to as
"WIFE".
WITNESSETH:
WHEREAS, the parties hereto are Husband and Wife,
having been married on January 16, 1993, in Lemoyne,
Pennsylvania, and having initially separated on or about
February 15, 2009, reconciling for several months and final
separating on or about August 1, 2009; and
WHEREAS, Husband and Wife are the parents of two minor
children, namely Benjamin S. Burner (D.O.B. 10/5/94) and Collin
M. Burner (D.O.B. 9/2/96); and
WHEREAS, certain differences have arisen by and
between Husband and Wife as a result of which they are currently
separated and the parties hereto are desirous of settling fully
and finally their respective financial and property rights and
obligations as between each other including, without limitation
by specification: the settling of all matters between them
relating to the ownership and equitable distribution of real and
personal property; the settling of all matters between them
relating to the past, present and future support, alimony and/or
maintenance of Husband by wife or of Wife by Husband; and in
general, the settling of any and all claims and possible claims
by one against the other or against their respective estates;
and
WHEREAS, the parties being fully advised as to their
respective rights, duties and obligations growing out of their
marital status, particularly with respect to the relevant
sections of the Divorce Code, Act of April 2, 1980, P.L. 63, Act
'be included in wife's gross income and deductible by Husband for
federal income tax purposes pursuant to Sections 71 and 215 of
the Internal Revenue Code of 1954, as amended, respectively.
Wife agrees to report payments received under this Paragraph 11
in her gross income for federal and, if applicable, for local
and state income tax purposes. Wife shall be solely responsible
for any and all income taxes with respect to any payments
received by her as alimony as required by this Paragraph 13.
The parties agree to reduce this Agreement to an Order of Court
simultaneously upon execution of this Agreement and file such
with the Court of Common Pleas along with the documents
necessary to conclude the divorce no later than January 15,
2010.
14. SUPPORT FOR CHILDREN
Husband and Wife agree that Husband shall pay Wife an
amount of child support of Eight Hundred Six Dollars ($806.00)
each month for the benefit of the minor children. This amount
shall be paid through the Cumberland County Domestic Relations.
Notwithstanding the present circumstances, Husband and Wife
understand and acknowledge the circumstances may necessitate an
adjustment in the amount of child support either upwards or
downwards, depending upon the childrens' circumstances and the
respective incomes and earning capacities of the parties hereto
in accordance with general support standards. In the event
Husband and Wife cannot agree upon the amount of child support
at any time hereafter, Husband and Wife agreed that nothing set
forth in this Agreement shall prejudice the right of either
party to file a petition for modification of entry of an amount
of child support, at any time, in any court of appropriate
jurisdiction.
15. CUSTODY
21
Husband and Wife agree and acknowledge that they intend to
share legal and physical custody of the minor children. For
purposes of physical custody, Husband and Wife agree that they
shall use a 2-2-3 schedule meaning that the children shall
alternate two day periods, namely Monday - Tuesday, and
Wednesdays and Thursdays, followed by the weekend commencing on
Friday and continuing through Sunday evening. Husband and Wife
agree and acknowledge that either parent may petition the Court
of Common Pleas of Cumberland County at any time to change the
terms of this Agreement in the event the Husband and Wife cannot
agree on custody terms in the best interest of the minor
children.
16.
(A)
existing
provided
way, a s,
effected
miscellaneous
intent as to division of
marital property is not,
herein, intended by the
ale or exchange of assets
without the introduction
property. The division of
except as otherwise expressly
aarties to constitute in any
and the division is being
of outside funds or other
property not constituting a part of the marital estate. As a
part of an equitable division of the marital properties and the
marital settlement herein contained, the parties hereto agree to
save and hold each other harmless from all income taxes assessed
against the other resulting from the division of the property as
herein provided.
(B) Taxes. Husband and wife represent and warrant to the
other that they shall file a joint income tax return for tax
year 2009 (which requires the entry of a final divorce in 2010)
and separate income tax returns thereafter. Husband and Wife
shall mutually cooperate with filing their respective tax
returns. Wife shall claim all taxes on her residence in 6225
Charing Cross, Mechanicsburg, Pennsylvania, in 2010 and
thereafter. Husband shall claim all interest and taxes
22
IN WITMRSS WHEREOF, the parties have hereunto set their
hands and seals the day and year first above written.
\\
WITNESS:
Q, Ej (. I 1 Ij
l r'? ?---
(SEAL)
Scot Irwin Burner
•L- SEAL)
4i?eAnne Burner
29
VERIFICATION
I verify that the
Modification of Custody
for Breach of Agreement
false statements herein
Pa.C.S.A. Section 4904,
authorities.
statements made in this Petition for
order and to Hold Respondent in Contempt
are true and correct. I understand that
are made subject to penalties of 18
relating to unsworn falsification to
Date: August ! 2011
a&? b-vv- fJU'JT71 V
Julie Anne Burner
r
CR`. IFI+CATE' OF' SERVICE
I, Andrew C. Sheely, Esqu'li.re, hereby certify that I am this
day serving this Petition for Modification and Breach/Contempt of
Agreement upon the following named individual this day by
depositing same in the United States Mail, First Class, postage
prepaid, at Mechan-icsburg, Pennsylvania, addressed as follows:
IRA. H. WEINSTOCK, ESQUIRE
IRA H. WEINSTOCK, P.C.
800 NORTH SECOND STREET
SUITE 100
HARRISBURG, PA 17102
Date: August ICI 2011
Andrew C. S y, Esquire