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HomeMy WebLinkAbout04-2085BRAD T. SMITH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2004- C~)~''~ CIVILTERM VIRGINIA W. SMITH, Defendant CIVIL ACTION - LAW IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you by the court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary at the Cumberland County Court House, Carlisle, Pennsylvania. 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. 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 17013 Telephone: (717) 249-3166 BRAD T. SMITH, Plaintiff VIRGINIA W. SMITH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004 - ,~o ~.~ CIVIL TERM CIVIL ACTION - LAW IN DIVORCE COMPLAINT UNDER SECTIONS 3301¢C) AND 3301(D) OF THE DIVORCE CODE 1. Plaintiff is Brad T. Smith, an adult individual who currently resides at 1 Matthew Court, Carlisle, Pennsylvania 17013-4364. 2. Defendant is Virginia VV. Smith, an adult individual who currently resides at 1 Matthew Court, Carlisle, Pennsylvania 17013-4364. 3. Plaintiff has been a bona fide resident in the Commonwealth of Pennsylvania for at least six months immediately previous to the filing of this Complaint. 4. The Plaintiff and Defendant were married on April 5, 1997, in Creekside, COUNT I - DIVORCE 5. Plaintiff hereby incorporates by reference paragraphs 1 through 4 above. 6, There have been no prior actions of divorce or for annulment between the parties as to their current marriage. 7. Neither Plaintiff nor Defendant is in the Armed Forces of the United States. 8. Plaintiff avers that the marriage between the parties is irretrievably broken. 9. The Plaintiff has been advised of the availability of counseling and that he may have the right to request that the court require the parties to participate in counseling. Pennsylvania. II WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter a decree in divorce. COUNT II-EQUITABLE DISTRIBUTION 10. Plaintiff hereby incorporates by reference paragraphs 1 through 9 above. 11. The parties have acquired real and personal property, including automobiles, bank accounts and other items of miscellaneous property during the course of their marriage, some of which is marital property. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter a decree which effects an equitable distribution of marital property. Respectfully submitted, O'BRIEN, BARIC & SCHERER DATE: May /0 ,2004 Michael A. Scherer, Esquire VERIFICATION I verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Date: April..~.'I~, 2004 Brad T. Smith BRAD T. SMITH, Plaintiff VIRGINIA W. SMITH, Defendant IN THE COURT OF COMMON PLEAS Of CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004 - '~{D(~ CIVIL TERM CIVIL ACTION - LAW IN DIVORCE ACCEPTANCE OF SERVICE AND NOW, this the l~"f~'day of May, 2004, I, Virginia W. Smith, Defendant above, hereby accept service of the Complaint in Divorce filed in the above case pursuant to Pa. R.C.P. 1920.4(e) and acknowledge receipt of a true and attested copy of said Complaint. - ~lr~'inia W. Smith IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRAD T. SMITH, V. Plaintiff NO. 2004-2085 VIRGINIA W. SMITH, Defendant CIVIL ACTION - LAW IN DIVORCE MARITAL SETTLEMENT AGREEMENT THIS AGREEMENT, made this 14th day of October, 2004 by and between Brad T. Smith, of Carlisle, Cumberland County, Pennsylvania, and Virginia W. Smith, of Carlisle, Cumberland County, Pennsylvania. WITNESSETH: WHEREAS, Virginia W. Smith (hereinafter called "Wife") currently resides at 15 Partridge Circle, Carlisle, Pennsylvania; and, WHEREAS, Brad T. Smith (hereinafter called "Husband") currently resides at 15 Partridge Circle, Carlisle, Pennsylvania; and, WHEREAS, the parties hereto are husband and wife, having been lawfully married on April 5, 1997; and, WHEREAS, a divorce complaint was filed on May 10, 2004; and, WHEREAS, the parties hereto are desirous of settling fully and finally their respective marital and property rights and obligations as between each other, including, without limitation, the settling of all matters between them relating to the ownership of real and personal property, the support and maintenance of one another and, in general, the settling of any and all claims and possible claims by one against the other or against their respective estates. NOW THEREFORE, in consideration of these premises, and of the mutual promises, covenants and undertakings hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the parties hereto, Husband and Wife, each intending to be legally bound hereby, covenant and agree as follows: 1. PERSONAL RIGHTS. Husband and Wife may, at all times hereafter, live separate and apart at such places as they may desire, free from all control, restraint, interference and authority, direct or indirect, by the other. Neither party will interfere with the use, ownership, enjoyment or disposition of any property now owned by or hereafter acquired by the other. 2. ADVICE OF COUNSEL. Each party acknowledges that he or she has had the opportunity to receive independent legal advice from counsel of his or her selection. Husband has secured legal advice from Michael A. Scherer, Esquire, his counsel, and Wife has voluntarily chosen not to have secured legal counsel in this matter. Each party fully understands the facts and his or her legal rights and obligations, and each party acknowledges and accepts that this Agreement is, in the circumstances, fair and equitable, and that it is being entered into freely and voluntarily, and that the execution of this Agreement is not the result of any duress or undue influence, and that it is not the result of any improper or illegal agreement or agreements. 3. DISCLOSURE OF ASSETS. Each of the parties hereto acknowledges that he or she is aware of his or her right to seek discovery permitted under the Pennsylvania Divorce Code or the Pennsylvania Rules of Civil Procedure. The parties do hereby acknowledge that there has been full and fair disclosure to the other of his or her respective income, assets and liabilities, whether such are held jointly, in the name of one party alone or in the name of one of the parties and another individual or individuals. Each of the parties hereto further covenants and agrees for himself and herself and his or her heirs, executors, administrators or assigns, that he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators or assigns in any action of contention, direct or indirect, and allege therein that there was a denial of any rights to full disclosure, or that there was any fraud, duress, undue influence or that there was a failure to have available full, proper and independent representation by legal counsel. 4. MUTUAL CONSENT DIVORCE. It is the intention of the parties, and the parties agree, that they have resolved all ancillary economic issues related to the dissolution of their marriage and thus any divorce action with respect to these parties shall be limited to a claim for divorce only. The parties agree that they will each execute an Affidavit of Consent and Waiver of Notice of Intention to Request Entry of Divorce Decree in order that counsel may finalize the divorce action in a timely fashion. 5. EQUITABLE DISTRIBUTION. A. Real Estate. The parties were the owners of real estate located at 1 Matthew Court, Carlisle, Pennsylvania, which property was the former marital residence. The property has been sold, settlement has occurred and each party has received their respective share of the proceeds, which are in separate bank accounts in the respective names of the parties. Neither party will make a claim for any proceeds from the sale of the marital residence which are in the name of the other party. Any refund for real estate taxes and any escrow refund shall be divided equally between the parties. B. Furnishings and Personalty. Wife will be departing from 15 Partridge Circle, Carlisle, Pennsylvania when she finds suitable housing, and wife will take the following items with her as her separate property upon her departure: master bedroom furniture and tv, piano, baby furniture, sewing machine, exercise equipment, blue recliner, red rocker and ottoman, kitchen table, all personal items boxed in lower level, small dvd/vhs tape rack, stereo, all of her personal items, tall oak bathroom stand, 2000 Hyundai Elantra, mower, weed wacker and roto-tiller. The remaining items of tangible personal property at 15 Partridge Circle, Carlisle, Pennsylvania, including the Hyundai Tiberon, shall be the separate property of Husband. C. Investment Real Estate. Husband shall become the sole owner of the investment real estate located at 15 Partridge Circle. Husband shall assume the mortgage on this property which is presently in joint names, such that Wife will no longer be obligated on the existing mortgage. Wife waives any interest she has to the equity in this property. D. Time Shares. The parties are the owners of two time shares in real estate. The time shares are listed for sale and the proceeds from the sale of the time shares shall be divided equally between the parties. E. Intangible Personal Property and Retirement Benefits. The parties have divided to their mutual satisfaction all intangible personal property, including bank accounts, investment accounts and retirement accounts heretofore used or owned by them in common, and neither party will make a claim to any such property presently titled in the name of the other party or in the possession of the other party. F. Miscellaneous Property. As of the execution date of this Agreement, any and all property not specifically addressed herein shall be owned by the party to whom the property is titled; and if untitled, the party in possession. This Agreement shall constitute a sufficient bill of sale to evidence the transfer of any and all rights in such property from each to together. G. Marital Debt. Aside from the foregoing, the parties acknowledge and agree that there are no other outstanding joint obligations. In the event there are any other debts in the name of either party, that party shall be solely responsible for those debts and shall hold the other harmless on the obligations. 6. SUPPORT, ALIMONY. ALIMONY PENDENTE LITE, SPOUSAL SUPPORT. Neither party shall pay the other spousal support, alimony pendente lite or alimony in connection with this separation and divorce. 7. RELEASE OF CLAIMS. (a) Wife and Husband acknowledge and agree that the property dispositions provided for herein constitute an equitable distribution of their assets and liabilities pursuant to §3502 of the Divorce Code, and Wife and Husband hereby waive any right to division of their property except as provided for in this Agreement. 8. MODIFICATION. No modification, rescission, or amendment to this Agreement shall be effective unless in writing signed by each of the parties hereto. 9. BREACH. If either party hereto breaches any provision hereof, the other party shall have the right, at his or her election, to sue for damages for such breach, or seek such other remedies or relief as may be available to him or her. The non-breaching party shall be entitled to recover from the breaching party all costs, expenses and legal fees actually incurred in the enforcement of the rights of the non-breaching party. 10. AGREEMENT BINDING ON PARTIES AND HEIRS. This Agreement shall bind the parties hereto and their respective heirs, executors, administrators, legal representatives, assigns, and successors in any interest of the parties. 11. AGREEMENT NOT TO BE MERGED. This Agreement may be incorporated into a decree of divorce for purposes of enforcement only, but otherwise shall not be merged into said decree. The parties shall have the right to enforce this Agreement under the Divorce Code of 1980, as amended, and in addition, shall retain any remedies in law or in equity under this Agreement as an independent contract. Such remedies in law or equity are specifically not waived or released. IN WITNESS WHEREOF, the parties hereto set their hands and seals on the dates of their acknowledgments. WITNESS: Brad T. Smith ~,,~Virginia W. Smith COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS. AND NOW, on this the IL~-~-J, day of October, 2004, before me, the undersigned officer, personally appeared Virginia W. Smith, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public '~ ;., A~~ My Commissimx P .:p~rcs Apr. ~m~r, pennsylvania Association of Notaries COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS. AND NOW, on this the i ~day of October, 2004, before me, the undersigned officer, personally appeared Brad T. Smith, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public COMMONWE.A_LTH QF ..PENNSYLVANIA Notar{al Seal Amanda L, Fisher, Notary Public Carlisle, Boro, Cumberland County ~ Iilll, Illll'll ....... ~i Il. II BRAD T. SMITH, Plaintiff VIRGINIA W. SMITH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-2085 CIVIL TERM CIVIL ACTION-LAW IN DIVORCE PLAINTIFF'S AFFIDAVIT OF CONSENT AND WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF DIVORCE DECREE UNDER SECTION 3301 (C) OF THE DIVORCE CODE 1. A complaint in divorce under Section 3301(C) of the Divorce Code was filed on May 10, 2004. 2. The marriage of the Plaintiff and Defendant is irretrievably broken and ninety days have elapsed from the date of the filing of the Complaint. 3. I consent to the entry of a final decree in divorce without notice. 4. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 5. 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. 6. I have been advised of the availability of marriage counseling and understand that I may request that the court require counseling. I do not request that the court require counseling. 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. Section 4904 relating to unsworn falsification to authorities. Date: Brad T. Smith BRAD T. SMITH, Plaintiff VIRGINIA W. SMITH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-2085 CIVIL TERM CIVIL ACTION-LAW IN DIVORCE DEFENDANT'S AFFIDAVIT OF CONSENT, ACCEPTANCE OF SERVICE AND WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF DIVORCE DECREE UNDER SECTION 3301(C) OF THE DIVORCE CODE 1. A complaint in divorce under Section 3301 (C) of the Divorce Code was filed on May 10, 2004. 2. Defendant acknowledges receipt and accepts service of the Complaint on May 18, 2004. 3. The marriage of the Plaintiff and Defendant is irretrievably broken and ninety days have elapsed from the date of the filing of the Complaint. 4. I consent to the entry of a final decree in divorce without notice. 5. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 6. 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. 7. I have been advised of the availability of marriage counseling and understand that I may request that the court require counseling. I do not request that the court require counseling. 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. Section 4904 relating to unsworn falsification to authorities. Date: W. Smith BRAD T. SMITH, Plaintiff VIRGINIA W. SMITH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-2085 CIVIL TERM CIVIL ACTION-LAW IN DIVORCE PLAINTIFF'S AFFIDAVIT OF CONSENT AND WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF DIVORCE DECREE UNDER SECTION 3301(C) OF THE DIVORCE CODE 1. A complaint in divorce under Section 3301 (C) of the Divorce Code was filed on May 10, 2004. 2, The marriage of the Plaintiff and Defendant is irretrievably broken and ninety days have elapsed from the date of the filing of the Complaint, 3. I consent to the entry of a final decree in divorce without notice. 4. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 5, 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. 6. I have been advised of the availability of marriage counseling and understand that I may request that the court require counseling. I do not request that the court require counseling. 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. Section 4904 relating to unsworn falsification to authorities, Date: Brad T. Smith BRAD T. SMITH, Plaintiff VIRGINIA W. SMITH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-2085 CIVIL TERM CIVIL ACTION-LAW IN DIVORCE DEFENDANT'S AFFIDAVIT OF CONSENT, ACCEPTANCE OF SERVICE AND WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF DIVORCE DECREE UNDER SECTION 3301(C) OF THE DIVORCE CODE 1. A complaint in divorce under Section 3301(C) of the Divorce Code was filed on May 10, 2004. 2. Defendant acknowledges receipt and accepts service of the Complaint on May 18, 2004. 3. The marriage of the Plaintiff and Defendant is irretrievably broken and ninety days have elapsed from the date of the filing of the Complaint. 4. I consent to the entry of a final decree in divorce without notice. 5. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 6. 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. 7. I have been advised of the availability of marriage counseling and understand that I may request that the court require counseling. I do not request that the court require counseling. 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. Section 4904 relating to unsworn falsification to authorities. Date: W. Smith BRAD T. SMITH, Plaintiff VIRGINIA W. SMITH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004 - 2085 IN DIVORCE PRAECIPE TO TRANSMIT RECORD TO THE PROTHONOTARY: Transmit the record, together with the following information, to the Court for entry of a divorce decree: 1. Ground for divorce: irretrievable breakdown under Section 3301(C) of the Divorce Code. 2. Date and manner of service of the Complaint: Defendant signed an Acceptance of Service on May 18, 2004. 3. (complete either paragraph (a) or (b).) A. Date of execution of the affidavit of consent required by Section 3301(c) of the Divorce Code: by Plaintiff on October 14, 2004; and Defendant on October 14, 2004. B. (1) date of execution of the Plaintiff's Affidavit required by Section 3301(d) of the Divorce Code: N/A (2) date of service of the Plaintiff's Affidavit upon the Defendant: N/A 4. Related claims pending: None. 5. Indicate date and manner of service of the notice of intention to file praecipe to transmit record, and attach a copy of said notice under section 3301(d)(1)(i) of the Divorce Code: None. Respectfully submitted, Michael A. Scherer, Esquire IN THE COURT OF COMMON PLEAS BRAD T. OF CUMBERLAND COUNTY STATE OF ~~ PENNA. SMITH Plaintiff NO. 2004 - 2085 CIVIL VERSUS VIRGINIA W. SMITH Defendant AND NOW, DECREED THAT DECREE IN DIVORCE BRAD T. SMITH , IT IS ORDERED AND , PLAI NTI fl, AND VIRGINIA W. SMITH , DEFENDANT, ARE DIVORCED FROM THE BONDS OF MATRIMONY. THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE BEEN RAISED OF RECORD IN THIS ACTION FOR WHICH A FINAL ORDER HAS NOT YET BEEN ENTERED; The parties Marital Settlement Agreement dated October 14, 2004 is incorporated herein as a final order of court. BY THE COURT.: PROTHONOTARY