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HomeMy WebLinkAbout09-4489SHAWN E. SMITH, Plaintiff vs. AMANDA L. SMITH Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2009- y489 CIVIL TERM IN DIVORCE/CUSTODY 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 Courthouse, 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, 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, PENNSYLVANIA 17013 TELEPHONE: (717) 249-3166 SHAWN E. SMITH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. 2009- q7 O CIVIL TERM AMANDA L. SMITH Defendant IN DIVORCE/CUSTODY COMPLAINT AND NOW, the Plaintiff, Shawn E. Smith, through his attorney, Dawn S. Sunday, Esquire files this Complaint in Divorce based upon the following: COUNT I - IN DIVORCE 1. Plaintiff/Husband is Shawn E. Smith, an adult individual, residing at 1114 Cross Creek Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant/Wife is Amanda L. Smith, an adult individual, residing at 3806 Birchwood Circle, Harrisburg, Dauphin County, Pennsylvania 17110. 3. Husband and Wife were married on December 15, 2000 in Allegheny County, Pennsylvania. 4. Husband and Wife have been bona fide residents of the Commonwealth of Pennsylvania for at least six months immediately prior to the filing of this Complaint. 5. There have been no prior actions for divorce or annulment of marriage between the parties in this or in any other jurisdiction. 6. Neither of the parties is a member of the Armed Forces of the United States of America. 7 The marriage is irretrievably broken. 8. Husband has been advised of the availability of marriage counseling and that he may have the right to request that the Court require the parties to participate in counseling. Being so advised, Husband does not request that the Court require the parties to participate in counseling prior to a Divorce Decree being entered by the Court. 9. Husband requests that the Court enter a Decree in Divorce from the bonds of Matrimony. COUNT II - CUSTODY 10. The preceding paragraphs of this Complaint are incorporated herein by reference as though set forth in full. 11. Husband and Wife are the biological parents of Mackenzie Smith, whose date of birth is October 14, 2007. 12. Mackenzie was born in wedlock. 13. During Mackenzie's lifetime, she has resided at the following addresses with the following persons: DATES ADDRESSES WITH WHOM October 14, 2007- May 23, 2008 163 Hunters Ridge Drive Husband and Wife Harrisburg PA 17110 May 24, 2008 - August 2008 492 Francis Drive Husband and Wife Mechanicsburg PA 17050 August 2008 - January 1, 2009 492 Francis Drive Wife Mechanicsburg PA 17050 and Temporary rentals in Husband Harrisburg, PA January 1, 2009 - June 1, 2009 3806 Birchwood Circle Wife Harrisburg PA 17110 and 492 Francis Drive Husband Mechanicsburg PA 17050 June 1, 2009 - Present 3806 Birchwood Circle Wife Harrisburg PA 17110 and 1114 Cross Creek Drive Husband Mechanicsburg PA 17050 14. Husband has not participated as a party or witness, or in any other capacity, in litigation concerning the custody of Mackenzie in this or any other Court, except as set forth above. 15. Husband has no information of any other custody proceeding concerning Mackenzie pending in a court of this Commonwealth or any other jurisdiction. 16. Husband does not know of any person who is not a party to these proceedings who has physical custody of Mackenzie or claims to have custody or visitation rights with respect to Mackenzie. 17. Each parent whose parental rights to Mackenzie have not been terminated and the persons who have physical custody of Mackenzie have been named as parties to this action. 18. The best interest and welfare of Mackenzie will be served by granting shared legal and physical custody to the parents. 19. The parties are participating in the Collaborative Law Process in an effort to establish parenting arrangements for Mackenzie by agreement and may elect to have their agreement be memorialized as a Court Order through submission of a Custody Stipulation. WHEREFORE, Plaintiff/Husband requests that this Honorable Court enter a Decree dissolving the marriage between Plaintiff/Husband and Defendant/Wife under Section 3301(c) or 3301(d) of the Divorce Code, and granting the parents shared legal and physical custody of Mackenzie. Respectfully Submitted, Dawn S. Sunday, Esquire Counsel for Plaintiff/Husband ID No. 41954 39 West Main Street Mechanicsburg, PA 17055-6230 (717) 766-9622 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. Section 4904, relating to unsworn falsification to authorities. Date FILED CF OF THE: 2009 Jtl -6 P 2: 5 I CUPS' _ aW' _ 1r r,? 4ygo.5o flb AIW olicy- LIU (o p aa,7&39 SHAWN E. SMITH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. 2009- yy 0 CIVIL TERM AMANDA L. SMITH Defendant IN DIVORCE/CUSTODY ACCEPTANCE OF SERVICE I accept service of the Divorce/Custody Complaint on behalf of Amanda L. Smith and certify that I am authorized to do so. Date Carol J. Lind y squire Saidis, Flow d Lindsay 26 West High Street Carlisle PA 17013 Iti +rrli OF THE PI n, OTARY 2009 JUL 23 PH 1: 40" CUM, SHAWN E. SMITH, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW NO.2009-4489 CIVIL TERM AMANDA L. SMITH, Defendant IN DIVORCE/CUSTODY PROPERTY SETTLEMENT AND SEPARATION AGREEMENT THIS AGREEMENT made this w*'` day of ~~ , 2010, between AMANDA L. SMITH, of 3806 Birchwood Circle, Harrisburg, Dauphin County, Pennsylvania, hereinafter referred to as "Amanda", and SHAWN E. SMITH, of 6226 Galleon Drive, Mechanicsburg, Cumberland County, Pennsylvania, hereinafter referred to as "Shawn". RECITALS: R.1: The parties hereto are husband and wife, having been joined in marriage on December 15, 2000 in Allegheny County, Pennsylvania; and R.2: A Complaint for Divorce has been filed in the Court of Common Pleas of Cumberland County, Commonwealth of Pennsylvania, to Number 2009-4489 Civil Term; and R.3: The parties hereto desire to settle fully and finally their respective financial and property rights and obligations including, but not limited to, all matters between them relating to the ownership of real and personal property, claims for spousal support, alimony, alimony pendente lite. R4: The parties also desire to settle their issues of custody of their minor child, Mackenzie Smith, born October 14, 2007, counsel fees and costs, and the settling of any and all claims and possible claims against the other or against their respective estates. i R5: Amanda and Shawn have participated in the collaborative law process in order to reach this Agreement. NOW THEREFORE, in consideration of the covenants and promises hereinafter to be mutually kept and performed by each party, as well as for other good and valuable consideration and intending to be legally bound, it is agreed as follows: (1) SEPARATION: It shall be lawful for each party at all times hereafter to live separate and apart from the other party at such place or places as he or she from time to time may choose or deem fit, free from any control, restraint or interference from the other. Neither party will molest the other or endeavor to compel the other to cohabit or dwell with him or her by any legal or other proceeding. Each party shall be free of the interference, authority or contact by the other as if he or she was single and unmarried except as maybe necessary to carry out the terms of this Agreement. (2) DIVORCE: The parties acknowledge that the marriage is irretrievably broken and that they will secure a mutual consent no-fault divorce decree in the above-captioned divorce action. Upon the execution of this Agreement, Amanda and Shawn shall execute and file Affidavits of Consent and Waivers of Notice, necessary to finalize the divorce. (3) REAL PROPERTY: The parties were owners of certain real estate known and numbered as 492 Francis Drive, Mechanicsburg, Cumberland County, Pennsylvania. The real estate was sold on June 1, 2009 and the parties received $74,330.66 from the sale, which they equally divided. Since the parties' separation, Shawn has purchased a home at 6226 Galleon Drive, Mechanicsburg, Cumberland County, Pennsylvania. With regard to that residence, Amanda waives any interest and Shawn holds her harmless and indemnifies her on account of any loss 2 related to the property. (4) DEBT: A. Marital Debt: Amanda and Shawn acknowledge and agree that there are no outstanding debts and obligations which are marital or for which the other might be liable incurred prior to the signing of this Agreement. Both Amanda and Shawn have obligations for education loans taken individually prior to their marriage and each is individually responsible for his or her loans. B: Post Separation Debt: In the event that either party contracted or incurred any debt since the date of separation on August 20, 2008, the party who incurred said debt shall be responsible for the payment thereof regardless of the name in which the debt may have been incurred. C: Future Debt: From the date of this Agreement, neither party shall contract or incur any debt or liability for which the other party or his or her property or estate might be responsible and each party shall indemnify and save the other party harmless from any and all claims or demands made against him or her by reason of debts or obligations incurred by the other party. (5) MOTOR VEHICLES: Shawn is the sole obligor on a leased 2007 Nissan Aitima and assumes full responsibility with regard to that vehicle. Amanda is the owner and sole obligor on a 2006 Honda Accord with equity of approximately $10,000.00. Upon receipt of her share of the income tax refund for 2009 as more particularly set out below, but no later than May 31 2010, Amanda will pay to Shawn $5,000.00. Shawn waives any right, title or interest he has in the Honda Accord which shall be Amanda's sole and separate property and she shall be solely responsible for the debt encumbering it. (6) TANGIBLE PERSONAL PROPERTY: The parties hereto mutually agree that they 3 have effected a satisfactory division of the furniture, household furnishings, appliances, tools and other household personal property between them, and they mutually agree that each party shall from and after the date hereo# be the sole and separate owner of all such property presently in his or her possession whether said property was heretofore owned jointly or individually by the parties hereto. 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 possession of each of the parties hereto. (7) INTANGIBLE PERSONAL PROPERTY: Each party hereby relinquishes any right, title or interest he or she may have in or to any intangible personal property currently titled in the name of or in the possession of the other party, including, but not limited to, stocks, bonds, insurance, bank accounts, individual retirement accounts, employment benefits including retirement accounts, savings plans, pension plans, stock plans, 401 K plans and the like. Specifically, Shawn and Amanda have agreed that Shawn will retain his American Funds IRA rollover with a value, on June 30, 2009, of $11,135.88 and that Amanda will retain her TIAA-CREF account with a value, on March 31, 2009, of $22,406.91. The parties also agree that each will retain his or her own separate interest in the State Employee Retirement System accounts each have with the Commonwealth of Pennsylvania. Shawn and Amanda are free to name whichever beneficiary each chooses for his or her account and to choose whichever retirement option he or she determines with regard to his or her account. (8) PARENTING OF CHILD: Shawn and Amanda agree as follows: A. The parties agree to share having legal custody of Mackenzie as follows: Major decisions concerning Mackenzie including, but not necessarily limited to, her health, welfare, education, religious training and upbringing shall be made jointly by the parties after discussion and consultation with a view toward obtaining and following a harmonious policy in Mackenzie's best interests. Neither party shall impair the other party's rights to shared legal custody of 4 Mackenzie. Neither parent shall attempt to alienate the affections of Mackenzie from the other parent. Each party shall notify the other of any activity or circumstance concerning Mackenzie that could reasonably be expected to be of concern to the other. Day to day decisions shall be the responsibility of the parent then having physical custody. With regard to any emergency decisions which must be made, the parent having physical custody of Mackenzie at the time of the emergency shall be permitted to make any immediate decisions necessitated thereby. However, that parent shall inform the other of the emergency and consult with him or her as soon as possible. In accordance with 23 Pa. C.S.A. §5309, each party shall be entitled to complete and full information from any doctor, dentist, teacher, professional or authority and to have copies of any reports or information given to either party as a parent as authorized by statute. B. Shawn and Amanda will share physical custody of Mackenzie by alternating weekends from approximately 4:30 PM on Fridays until 7:30 AM to 8:00 AM on Mondays. Following Amanda's alternating weekend, Shawn will have Mackenzie on Monday and Tuesday and Amanda will have Mackenzie on Wednesday and Thursday. Following Shawn's weekends, Amanda will have Mackenzie on Monday and Tuesday and Shawn will have Mackenzie on Wednesday and Thursday. For the weekday schedule, exchange times shall be at 7:30 to 8:00 AM and 4:30 to 5:00 PM. C. Shawn and Amanda will alternate custodial time with Mackenzie on the following holidays: 1. In 2009, and in ail odd numbered years thereafter, Amanda will have Mackenzie for local Trick or Treat, Thanksgiving weekend (Thursday morning through Monday morning), New Year's Eve and New Year's Day. In 2010, and in all even numbered years thereafter, Shawn will have Mackenzie for these times. 2. In 2009, and in all odd numbered years thereafter, Shawn will have Mackenzie for Easter, Fourth of July, Halloween, Christmas Eve and Christmas Day. In 5 2010, and in all even numbered years thereafter, Amanda will have Mackenzie for these times. D. Shawn will have custody of Mackenzie on Father's Day and Amanda will have custody of Mackenzie on Mother's Day. E. Shawn and Amanda will alternate custody of Mackenzie on her birthday so that Shawn has Mackenzie in odd numbered years and Amanda has Mackenzie in even numbered years. F. In the event that Shawn is off of work for a state holiday, Shawn may care for Mackenzie while Amanda is working, even in the event daycare is open. G. Both Shawn and Amanda may have Mackenzie for a two week vacation each year which two weeks may be taken consecutively. Vacation periods will include the vacationing parent's usual weekend unless otherwise agreed to. Shawn and Amanda will give each other at least thirty (30) days notice before they commit to a vacation plan in order to avoid conflicts in plans. H. In the event either Shawn and Amanda takes Mackenzie out of town on an overnight trip, he or she will provide the other with the location and a telephone number at which Mackenzie can be reached. I. The parties agree that Mackenzie may go to daycare in the summer, but that Amanda may provide care for her during the days in the summertime if Amanda is not working. J. Amanda and Shawn will be considerate of each other's schedules and work obligations, working out adjustments to the schedules set out herein. If one of them cannot provide care directly for Mackenzie, he or she will ask the other to provide that care before engaging a babysitter. In the event that Mackenzie is ill or cannot attend daycare for one reason or the other, the parties will take their schedules and obligations into account, determining which of them will stay home with Mackenzie. However, Shawn and Amanda will generally alternate the 6 obligation of providing that care. K. Until Shawn or Amanda remarry, they will not permit a significant other to stay overnight with the custodial parent while he or she has physical custody of Mackenzie. It is understood that if a significant other were accompanying the custodial parent on vacation, he or she could stay in a separate room. L. Should either Shawn and Amanda become unavailable for care of Mackenzie due to an emergency, illness or accident, the other parent will assume full time custody of Mackenzie until the equally shared physical arrangement can resume. M. Shawn and Amanda commit to joint decision-making for all important decisions but, in the event that one party or the other is unavailable during an emergency, the other may make emergency decisions. N. The parties will jointly decide where Mackenzie will attend school until such time as she graduates from high school. O. Shawn and Amanda are committed to flexibility in their custody arrangement for the benefit of Mackenzie. They are also committed to co-parenting Mackenzie. In the event that they cannot resolve any co-parenting issue, they will seek the advice of a family therapist, equally dividing the cost. The family therapist on which they will agree will be one at Reigler, Shienvold & Associates in Harrisburg, Pennsylvania or Marie Stoner or Jessica Hart from New Passages in Harrisburg. P. Amanda and Shawn shall share transportation for exchanges of custody as they can agree. Q. Shawn and Amanda agree that neither parent will do or say anything which may estrange Mackenzie from the other parent, injure the opinion of Mackenzie as to the other parent, or hamper the free and natural development of Mackenzie's love and respect for the other parent. Both parties shall ensure that third parties having contact with Mackenzie comply with this provision. R. The terms of this Agreement shall be entered in a separate Custody Order. (9) CHILD SUPPORT: Shawn shall pay to Amanda for the use, benefit, support and maintenance of their minor child, the sum of Two Hundred Twenty-Five ($225.00) Dollars per month. Additionally, Shawn will pay directly to the daycare provider one-half of the cost of daycare expenses, including tuition and incidental expenses such as food and Pull-Ups. Shawn will maintain health insurance for the benefit of Mackenzie so long as it is available through his employment at a reasonable cost. The parties will equally share unreimbursed medical expenses for Mackenzie as well as half of the costs of expenses for future activities (Amanda and Shawr. will agree on the appropriateness of any activity before incurring any expense associated with it.) Finally, the parties agree that each will maintain life insurance with a benefit of $250,000.00 payable to a Trustee for the general health, maintenance and welfare of Mackenzie until she attains 22 years of age. Within 90 days of the date of this Agreement, the parties will provide each other with proof that the beneficiary designation has been changed to the Trustee and with the trust language contained in a separate trust document or in a Will and will keep each other apprised as to any change in the trustee or in trust language. The parties agree to exchange W-2 forms for 2010 as soon as received and tax returns for the income reported in 2010. They agree to make any adjustments to the child support amount they deem appropriate in January 2011. Shawn will pay the child support he undertakes by this Agreement outside of the Office of Domestic Relations by a direct payment to Amanda by the 30th day of each month. The parties each anticipate that they will be able to adjust their FCAP accounts so that they may set aside, pre-tax, one-half of the daycare expenses annually, providing that the adjustment does not result in a loss to Amanda on account of her present $5,000.00 set aside. The parties agree to engage in an alternative dispute resolution procedure such as mediation or collaborative family law before a resorting to the courts to enforce this support agreement or to modify it. (10) EDUCATIONAL SUPPORT: Both Amanda and Shawn are committed to contribute to a college education for Mackenzie, including tuition, room, board and other expenses. To that end, they will investigate and create either a single, or two individual, TAP accounts and will agree on a method of funding those accounts. While the amount of the funding is unclear at this point, both are committed to a plan to funding the account(s) beginning this year and continuing until Mackenzie's graduation from college. (11) WAIVER OF ALIMONY: The parties acknowledge that each has income and assets satisfactory to his and her own reasonable needs. Each party waives any claim he or she may have one against the other for alimony, spousal support or alimony and alimony pendente lite. (12) ADVICE OF COUNSEL: The parties hereto acknowledge that each has been notified of his or her right to consult with counsel of his or her choice, and have been provided a copy of this Agreement with which to consult with counsel. Amanda is represented by Carol J. Lindsay, Esquire and Shawn is represented by Dawn Sunday, Esquire. Each party acknowledges and accepts that this Agreement is, under the circumstances, fair and equitable, and that it is being entered into freely and voluntarily after having received such advice and with such knowledge as each has sought from counsel, and 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. Each party shall pay his or her own attorney for all legal services rendered or to be rendered on his or her behalf. (13) ADDITIONAL INSTRUMENTS: Each of the parties 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 provisions of this 9 Agreement. (14) INCOME TAX: A: The parties have heretofore filed joint Federal and State Tax returns. Both parties agree that in the event any deficiency in Federal, state or local income tax is proposed, or assessment of any such tax is made against either of them, each will indemnify and hold harmless the other from and against any loss or liability for any such tax deficiency or assessment and any interest, penalty and expense incurred in connection therewith. Such tax, interest, penalty or expense shall be paid solely and entirely by the individual who is finally determined to be the cause of the misrepresentations or failures to disclose the nature and extent of his or her separate income on the aforesaid joint returns. In the event the error is caused by neither, but rather an error of the tax preparer, the parties with equally divide the unpaid tax, interest and penalty. B: The parties have agreed that they will file separate Federal and state income tax returns for the tax year ending December 31, 2009. They have also agreed to equally divide the total of the refunds received on their separate filings. In the tax year ending 2009, Shawn will claim Mackenzie as a dependency exemption. The parties will each claim their own daycare expenses. In years following 2009, they may agree to allocate the dependency exemption to one or the other of them, bu# in the event that they cannot agree, Shawn will take Mackenzie as a dependency exemption in odd numbered years and Amanda will take Mackenzie as a dependency exemption in even numbered years. (14) BANKRUPTCY: The parties hereby agree that the provisions of this Agreement shall not be dischargeable in Bankruptcy and expressly agree to reaffirm any and all obligations contained herein. In the event a party files such bankruptcy and pursuant thereto obtains a discharge of any obligations assumed hereunder, the other party shall have the right to declare this Agreement to be null and void and to terminate this Agreement in which event the division of io the parties' marital assets and all other rights determined by this Agreement including alimony shall be subject to court determination the same as if this Agreement had never been entered into. (15) COMPLETE DISCLOSURE: The parties do hereby warrant, represent, acknowledge and agree that each is fully and completely informed of, and is familiar with, the wealth, real and personal property, estate and assets, earnings and income of the other and has made any inquiry he or she desires into the income or estate of the other and received any such information requested. Each has made a full and complete disclosure to the other of his and her entire assets, liabilities, income and expenses and any further enumeration or statement thereof in this Agreement is specifically waived. (16) RIGHTS AND RESPONSIBILITIES: Husband and Wife acknowledge that each of them has read and understand his and her rights and responsibilities under this Agreement and that they have executed this Agreement under no compulsion to do so but as a voluntary act. (17) FULL SETTLEMENT: Except as herein otherwise provided, each party hereby releases the other from any and all claims, or demands up to the date of execution hereof. It is further specifically understood and agreed by and between the parties hereto that each party accepts the provisions herein made in lieu of and in full settlement and satisfaction of any and all of said party's rights against the other for past, present and future claims on account of support, maintenance, alimony, alimony pendente lite, counsel fees, costs and expenses, equitable distribution of marital property and any other claims of the party, including all claims which have been raised or may be raised in an action for divorce. (18) RELEASE OF ALL CLAIMS: Except as may be otherwise specifically provided in this Agreement, Husband and Wife, for themselves, their heirs, representatives and assigns, each hereby forever releases, remises, discharges and quitclaims the other, and such other's heirs, ii representatives, assigns and estate, from and with respect to the following: A. All liability, claims, causes of action, damages, costs, contributions and expenses or demands whatsoever in law or in equity; B. All rights, title, interest or claims in or to any property of the other, whether real, personal or mixed and whether now owned or hereafter acquired; C. All rights of courtesy and dower and all claims or rights in the nature of courtesy and dower; D. All widow or widower's rights; E. All right, title, interest or claim in or to the other's estate, whether now owned or hereafter acquired, including but not limited to all rights or claims: (1) to take against the other's will; (2) under the laws of intestacy; (3) to a family exemption or similar allowance; and (4) all other rights or authority to participate or intervene in a deceased spouse's estate in any way, whether arising under the laws of Pennsylvania or any other country, territory, state or political subdivision. F. All rights or claims to any accounting; G. All rights, claims, demands, liabilities and obligations arising out of or in connection with the marital relationship or the joint ownership of property, whether real, personal or mixed; H. All rights, claims, demands, liabilities and obligations arising under the provisions of the Pennsylvania Divorce Code, as the same may be amended from time to time, and under the provisions of any similar statute enacted by any other country, state, territory or political subdivision; I. All rights, claims, demands, liabilities and obligations each party now has, or may hereafter have, against or with respect to the other. is (19) GOVERNING LAW: This Agreement shall be construed under the law of the Commonwealth of Pennsylvania. If any provision of this Agreement is determined to be invalid or unenforceable, all other provisions shall continue in full force and effect. (20) INCORPORATION INTO DECREE: In the event that either of the parties shall recover a final judgment or decree of absolute divorce against the other in a court of competent jurisdiction, the provisions of this Agreement may be incorporated by reference or in substance but shall not be merged into such judgment or decree and this Agreement shall survive any such final judgment or decree of absolute divorce and shall be entirely independent thereof. (21) BREACH: If either party breaches any provision of this Agreement, Shawn and Amanda agree to consider using the collaborative process or mediation to assist them in resolving any issues before taking formal legal recourse. However, either party shall have the unrestricted right, or his or her election, to sue for damages for such breach, or to seek such other remedies or relief as may be available at law or in equity. In the event of a breach, the non-breaching party shall be paid, as a party of any award or judgment against the breaching party, all costs, including reasonable counsel fees incurred as a result of the breach. (22) ENTIRE UNDERSTANDING: This Agreement constitutes the entire understanding between the parties and there are no covenants, conditions, representations, or agreements, oral or written, of any nature whatsoever, other than those herein contained. (23) DISCLOSURE AND WAIVER OF PROCEDURAL RIGHTS: Each party understands that she or he has the right to obtain from the other party a complete inventory or list of all of the property that either or both parties own at this time or owned as of the date of separation, and that each party has the right to have all such property valued by means of appraisals or otherwise. Both parties understand that they have the right to have the Court hold hearings and make decisions on the matters covered by this Agreement. Both parties understand 13 that a Court decision concerning the parties' respective rights and obligations might be different from the provisions of this Agreement. Both parties waive the following procedural rights: (a) The right to obtain an Inventory and Appraisement of all marital and separate property as defined by the Pennsylvania Divorce Code; (b) The right to obtain an Income and Expense Statement of the other party as provided by the Pennsylvania Divorce Code; (c) The right to have the Court determine which property is marital and which is non-marital and equitably distribute between the parties that property which the Court determines to be marital; (d) The right to have the Court decide any other rights, remedies, privileges, or obligations covered by this Agreement, including but not limited to, possible claims for divorce, spousal support, alimony, alimony pendente lite, counsel fees, costs and expenses. (24) AGREEMENT BINDING ON PARTIES AND HEIRS: This Agreement shall bind the parties hereto, their respective heirs, executors and assigns. IN WITNESS WHEREOF, the parties hereto intending to be legally bound have hereunto set their hands and seals the day and year first written above. ' ~... s ~Vl-_vv"~ Shawn E. Smith Amanda L. Smith x4 WITNESS: SHAWN E. SMITH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. 2009-4489 CIVIL TERM cn AMANDA L. SMITH ~~- ~ 'LL' ;~: Defendant IN DIVORCE/CUSTODY ~'' `- : ~-~` ,,, ._ • ~-- -~,. "•, PRAECIPE TO TRANSMIT RECORD ~ T-~~ ,., _ . __ .1, f"') J 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 §3301(c). 2. Date and manner of service of the complaint: Acceptance of Service signed by Defendant's counsel on July 15, 2009. 3. Date of execution of the affidavit of consent required by § 3301(c) of the divorce code: by plaintiff January 20, 2010 ; by defendant January 19, 2010 4. Related claims pending: None All claims resolved by Marital Settlement Agreement dated January 20, 2010. 5. Date plaintiff's Waiver of Notice in §3301 (c) Divorce was filed with the Prothonotary: Attached for filing with this Praecipe. Date defendant's Waiver of Notice in §3301 (c) Divorce was filed with the Prothonotary Attached for filing with this Praecipe. .~ ~! Attorney for Plaintiff Dawn S. Sunday, Esquire ID # 41954 39 W. Main Street -Suite 1 Mechanicsburg, PA 17055-6230 (717) 766-9622 SHAWN E. SMITH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. 2009-4489 CIVIL TERM N . ~." C'3 AMANDA L. SMITH -~., ~-~~~ c _,~ Defendant IN DIVORCE/CUSTODY - ~- ' ~' c~ _• `._ PLAINTIFF'S AFFIDAVIT OF CONSENT '~" ~~ " UNDER 53301 (c1 OF THE DIVORCE CODE - ~ ;; ; AND WAIVER OF COUNSELING = •- Q _T 1. A Complaint in Divorce under §3301 (c) of the Divorce Code was filed on July 6, 2009 and served on July 15, 2009. 2. The marriage of plaintiff and defendant is irretrievably broken and ninety days have elapsed from the date of filing and service of the Complaint. 3. I consent to the entry of a final Decree in Divorce after service of notice of intention to request entry of the Decree. I verify that the statements made in this Affidavit are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the p alti of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. Date: ~ '~D • ~ C) ~ Shawn E. Smith PLAINTIFF'S WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER $3301 (c 1 OF THE DIVORCE CODE 1. I consent to the entry of a final Decree of Divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a Divorce Decree is entered by the Court and that a copy of the Decree will be sent to me immediately after it is filed with the Prothonotary. I verify that the statements made in this Affidavit are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the pen~ieg of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. Date: ~ ~ .20 • ! C) Shaw mith SHAWN E. SMITH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. 2009-4489 CIVIL TERM n ^~ r~- AMANDA L. SMITH ~ ~~, ~ .~ a ~ _rs Defendant IN DIVORCE/CUSTODY-' - r-- - ~ -,~~^ ~, -:, ~ t. DEFENDANT'S AFFIDAVIT OF CONSENT ~ ~ - ~ ~ r~ UNDER 53301 (c- OF THE DNORCE CODES AND WAIVER OF COUNSELING -~ ~:- ;,~ ~ ' 1. A Complaint in Divorce under §3301 (c) of the Divorce Code was filed on July 6, 2009 and serv~"f on Daly 15, 2009. 2. The marriage of plaintiff and defendant is irretrievably broken and ninety days have elapsed from the date of filing and service of the Complaint. 3. I consent to the entry of a final Decree in Divorce after service of notice of intention to request entry of the Decree. I verify that the statements made in this Affidavit are true and correct 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 unswom falsification to authorities. Date: C~ t - I n1 -/(~ Amanda L. Smith 1. I consent to the entry of a final Decree of Divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a Divorce Decree is entered by the Court and that a copy of the Decree will be sent to me immediately after it is filed with the Prothonotary. I verify that the statements made in this Affidavit are true and correct 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 unswom falsification to authorities. Date: C~ ~ - l 9 -/CJ Q Amanda L. Smith IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHAWN E. SMITH v. AMANDA L. SMITH NO. 2009-4489 DIVORCE DECREE AND NOW, '~•cG.-.,.., Z `~ =O/O , it is ordered and decreed that SHAWN E. SMITH ,plaintiff, and AMANDA L. SMITH ,defendant, are divorced from the bonds of matrimony. Any existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending. The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered. Those claims are as follows: (If no claims remain indicate "None.") None. The terms of the Marital Settlement Agreement dated January 20, 2010 are e y in o p e u m o r o enforcement only. By the Court, Attes • J• Pro honotary ~ ,~ . ~~ ~'~ - ~~~ ,nom ~~ ~ ~~~ ~~~v~