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HomeMy WebLinkAbout09-5380CARRIE J. CRAIN, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. N -!5_2M CIvlt l+x"` GARY L. CRAIN, CIVIL ACTION -LAW Defendant 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, 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse 4th Floor, One Courthouse Square Carlisle, PA 17013 (717) 240-6200 CARRIE J. CRAIN, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 01..53 k0 ( i. j _rt" ? GARY L. CRAIN, CIVIL ACTION -LAW Defendant IN DIVORCE COMPLAINT UNDER SECTION 3301(c) or (d) OF THE DIVORCE CODE 1. Plaintiff is Carrie J. Crain, an adult individual who resides at 52 Shughart Road, Carlisle, Cumberland County, Pennsylvania 17015. 2. Defendant is Gary L. Crain, an adult individual who resides at 52 Shughart Road, Carlisle, Cumberland County, Pennsylvania 17013. 3. Plaintiff has been a bona fide resident in the Commonwealth for at least six months immediately previous to the filing of this complaint. 4. The plaintiff and defendant were married on September 28, 1991, at Carlisle, Pennsylvania. 5. There have been no prior actions for divorce or annulment between the parties. 6. The marriage is irretrievably broken. 7. Plaintiff has been advised of the availability of counseling and that plaintiff has the right to request that the court require that the parties participate in counseling. 8. Plaintiff requests the court to enter a decree of divorce z Timothy J. O'Connell, Esquire TURNER AND O'CONNELL 4701 North Front Street Harrisburg, PA 17110 (717) 232-4551 Attorney for plaintiff Verification I verify that the statements made in the foregoing Complaint are true and correct. I understand false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unworn falsification to authorities. JO -V Carrie J. Crain Date: lrvi ?i:J '-3 t ?f Ir,• Ck'# 45 4 3 a A 77M CARRIE J. CRAIN, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 09-5380 CIVIL TERM GARY L. CRAIN, CIVIL ACTION -LAW c -n Defendant IN DIVORCE _ rn rn ACCEPTANCE OF SERVICE 1 ? 7D ' 0^ 77 a I hereby accept s ervice of the Complaint under Section 3301(c) or (d) filed ire above captioned action. Date: q 1 0-0 9 Gary L. Crain 161 - 6(9 - (0711) Social Security No. CARRIE J. CRAIN, IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA o vs. NO.09-5380 CIVIL TERM MM GARY L. CRAIN, CIVIL ACTION - LAW Defendan : IN DIVORCE _ D C...) AFFIDAVIT OF CONSENT c; 1. A complaint in divorce under Section 3301(c) of the Divorce Code was filed on AntustZ 11 3, 2009. The marriage of plaintiff and defendant is irretrievably broken and ninety (90) days have elapsed from the date of filing and service of the complaint. I consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OFA DIVORCE DECREE UNDER SECTION 3301(c) OF THE DIVORCE CODE I consent to the entry of a final decree in divorce without notice. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the prothonotary. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. co y s? 3-n i F5 orn D ewos-L. t 0 Date: Carne J. Crain CARRIE J. CRAIN, IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA C') o a n vs. NO. 09-5380 CIVIL TERM -i GARY L. CRAIN, CIVIL ACTION -LAW rnw 7o M_ -,r- Defendan IN DIVORCE > r- O CD AFFIDAVIT OF CONSENT j C :)-n c_' CDC) 1. A complaint in divorce under Section 3301(c) of the Divorce Code was filed oust• Am 3, 2009. -< 'j -? 2. The marriage of plaintiff and defendant is irretrievably broken and ninety (90) days have elapsed from the date of filing and service of the complaint. I consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OFA DIVORCE DECREE UNDER SECTION 3301(c) OF THE DIVORCE CODE I consent to the entry of a final decree in 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. 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. Section 4904 relating to unsworn falsification to authorities. Date: ",?_r,z7j Gary L. Crain CARRIE J. CRAIN IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. GARY L. CRAW CIVIL DIVISION NO. 09-5380 CIVIL TERM 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 § (3301(c)) xwk o x§ M#3 "of the Divorce Code. -- --4 (Strike out inapplicable section.) MCo C- MF 2. Date and manner of service of the complaint: . ' -vim served August 10, 2009 by personal service; Acceptance of Service filed herewith ; oO ? ?, r 3. Complete either paragraph (a) or (b). =? (a) Date of execution of the affidavit of consent required by § 3301(c) of thy;:c. c? -n 2 Divorce code: - - o by plaintiff January 6, 2011 ; by defendant January 6, 2011 -a (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 § 3301(d) affidavit upon the respondent opposing party: 4. Related claims pending: none 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 plaintiff's Waiver of Notice was fled with the Prothonotary: dated January 6, 2011 and filed herewith Date defendant's Waiver of Notice was filed with the Prothonotary: dated January 6, 2011 and filed herewith Yorney for Plaintiff/Raftm i= Timothy J. O'Connell, Esquire PROPERTY SETTLEMENT AGREEMENT This agreement is made this ( 01-" day of JafUyjj?y , 2011, by and between CARRIE J. CRAIN, of 1614 Walnut Bottom Road, Carlisle, Pennsylvania 17013, hereinafter for the purpose of brevity referred to as "Wife", and GARY L. CRAIN, of 52 Shughart Road, C-) N Carlisle, Pennsylvania 17013, hereinafter for the purpose of brevity referred to as "Husba', ° 0? --4 -ca - ::C M F :- Witnesseth: -urn CD QQ WHEREAS, the parties hereto are husband and wife, having been lawfully joineOP-) c) -n marriage on September 28, 1991, and diverse unhappy differences, disputes, misunderst4id s .? Drn -? CO and difficulties have arisen between the parties, as a result of which they are living separate and apart; and WHEREAS, Wife has instituted an action for divorce in the Court of Common Pleas of Cumberland County, docketed to No. 09-5380; and WHEREAS, it is the desire of the parties, after long and careful consideration, to amicably adjust, compromise and settle all property rights and all rights in, to or against each other's property and estate, including property heretofore or subsequently acquired by either party, and to settle all disputes existing between them, including any and all claims for Wife's and/or Husband's maintenance and/or for support, alimony, counsel fees and costs. NOW THEREFORE, in consideration of the several mutual promises and/or covenants and/or agreements hereinafter contained, each of the parties hereto, intending to be legally bound hereby, promises, covenants and agrees as follows: First: Divorce The parties hereto further agree that the marriage is irretrievably broken, and that they mutually consent to a divorce and agree to execute all necessary affidavits required by the Court at the appropriate times. This agreement shall remain in full force and effect regardless of any change in the marital status of the parties. It is warranted, covenanted, and represented by Husband and Wife, each to the other, that this agreement is lawful and enforceable and this warranty, covenant and representation is made for the specific purpose of inducing Husband and Wife to execute the agreement. Husband and Wife each knowingly and understandingly waive any and all possible claims that this agreement is, for any reason, illegal or for any reason whatsoever of public policy, unenforceable in whole or in part. Husband and Wife each does hereby warrant, covenant and agree that, in any possible event, he and she are and shall forever be estopped from asserting any illegality or unenforceability as to all or any part of this agreement. Second: Releases Except as provided for in this agreement, Husband and Wife each hereby forever releases, remises, discharges and quitclaims the other and the estate of the other, for all time to come and for all purposes whatsoever, from any action of any nature whatsoever in law or in equity. Each of the parties specifically covenants and agrees and warrants and represents that the execution of this agreement and its terms and provisions are accepted by them as including, inter alia, full and complete payment by the other for any and all past, present or future obligations for support, care, education, maintenance, and property rights of the other. Each further covenants, warrants, represents and agrees that no action will be instituted by them (or claim of any kind be made) for their support, or for any claim for property or rights other than as set forth in this agreement, directly or indirectly, against the other, in any court or any jurisdiction whatsoever. The parties hereto recognize, acknowledge and agree that each of them hereafter shall not have and does not have any rights or claims for support, care and maintenance or for any rights or claims of property because the provisions herein in the nature of a post-nuptial agreement are fair and reasonable and the property distributions herein are fair and reasonable. Wife acknowledges that the property conveyed to her is a fair and substantial portion of and division of Husband's assets and Wife's rights to equitable distribution of property; Husband acknowledges that 2 property allocated to him is fair and a substantial portion of and division of the assets of the parties and Husband's rights to equitable distribution of property. Third: Release of Testamentary Claims Except as provided for in this agreement, each of the parties hereto shall have the right to dispose of his or her property by Last Will and Testament or otherwise, and each of them agrees that the estate of the other, whether real, personal or mixed, shall be and belong to the person or persons who would have become entitled thereto as if the decedent had been the last to die. This provision is intended to constitute a mutual waiver by the parties of any rights to take against each other's last wills under the present or future laws of any jurisdiction whatsoever, and is intended to confer third party beneficiary rights upon the other heirs and beneficiaries of each. Either party may, however, make such provision for the other as he or she may desire in and by his or her Last Will and Testament. Each of the parties further covenants and agrees that he or she will permit any will of the other to be probated and allow administration upon his or her personal, real or mixed estate and effects to be taken out by the person or persons who would have been entitled to do so had Husband or Wife died during the lifetime of the other; and that neither Husband nor Wife will claim against or contest the will and the estate of the other.. Each of the parties hereby releases, relinquishes and waives any and all rights to act as executor or executrix or administrator or administratrix of the other party's estate. Each of the parties hereto further covenants and agrees for himself and herself and his and her heirs, executors, administrators and assigns, that he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators or assigns, for the purpose of enforcing any of the rights relinquished under this paragraph. Fourth: Legal Advice The provisions of this agreement and their legal effect have been fully explained to the parties by their respective counsel. The Wife has employed and had the benefit of counsel of Timothy J. O'Connell, Esquire, as her/his attorney. The Husband has elected to represent himself in this matter. Each party acknowledges that he or she fully understands the facts and fully understands 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 after having received such advice and with such knowledge, and that execution of the agreement is not the result of any duress or undue influence and that it is not the result of any collusion or improper or illegal agreement or agreements. The respective parties do hereby warrant, represent and declare and do acknowledge and agree that each is and has been fully and completely informed of and is familiar with and cognizant of the wealth, real and/or personal property, estate and assets, earnings and income of the other and that each has made a full and complete disclosure to the other of his and her entire assets and liabilities and any further enumeration or statement thereof in this agreement is hereby specifically waived, and the parties do not wish to make or append hereto any further enumeration or statement. Each of the parties hereto further covenants and further agrees for himself and herself and his or her heirs, executors, administrators and assigns, that he or she will never at any time sue the other party or his or her heirs, executors, administrators or assigns, in any action or contention, direct or indirect, that there was any absence or lack of full disclosure or that there was any absence or lack of full, proper or independent representation. Fifth: Separation and Non-Molestation Agreement It shall be lawful for Husband and Wife at all times hereafter to live separate and apart from each other and to reside from time to time at such place or places as they shall respectively deem fit, free from any authority, control, restraint or interference, direct or indirect, by each other. Each party agrees that he or she will not molest or harass the other, or compel or endeavor to compel the other to cohabit or dwell with him or her by any legal or other proceedings. Each may have for her or his separate use and benefit the right to conduct, carry on or engage in any business, profession or occupation. Neither of the parties shall, in any way whatsoever, interfere with the other's employment or occupation. The parties are free to mutually and voluntarily make 4 any efforts at reconciliation as he or she or they shall deem proper. The foregoing provision, however, shall not be taken to be an admission on the part of either Husband or Wife of the lawfulness or unlawfulness of the causes leading to their living apart, and shall not be taken to be an admission on the part of either Husband or Wife as to whether either party committed desertion and continues in such desertion, and nothing contained in this agreement is to be; deemed to justify such continued desertion. It is specifically intended and understood and agreed by and between the parties hereto that each is to be enabled to live not only separate and apart from each other, but is also free to act as if he or she were unmarried so far as any other persons are concerned and each covenants and agrees not to harass or embarrass the other or any other person who either party may hereafter see socially. Each of the parties hereto covenants and agrees that neither will deny or endeavor to abridge any right of support or maintenance which the other might have because of any alleged conduct with regard to any third persons; provided, however, that the parties hereto recognize that it is intended that this agreement shall and does supersede any and all rights or claims to support. Each of the parties hereto covenants and agrees that he and she will not charge the other with adultery in any action of any nature whatsoever, directly or indirectly, or whether involving the parties or third persons. Sixth: Debts All debts, contracts, obligations or liabilities incurred at any time in the past or future by either of the parties will be paid promptly by said party, unless and except as otherwise specifically set forth in this agreement; and each of the parties hereto further promises, covenants and agrees that each will now and at all times hereafter save harmless and keep the other or his or her estate indemnified and saved harmless from all debts or liabilities incurred by him or :her, as the case may be, and from all actions, claims and demands whatsoever with respect thereto, and from all costs, legal or otherwise, and counsel fees whatsoever appertaining to such actions, claims and demands. Neither party shall, after the date of this agreement, contract or incur any 5 debt or liability for which the other or his or her property might be responsible, and shall indemnify and save harmless the other from any and all claims or demands made against her or him by reason of debts or obligations incurred by her or him and from all costs, legal costs and counsel fees unless provided to the contrary herein. Seventh: Equitable Distribution Real Estate. Wife agrees to transfer all of her right, title and interest in the marital domicile located at 52 Shughart Road to Husband, said transfer shall be subject to the mortgage thereon in favor of AgChoice Farm Credit which Husband specifically agrees to assume. Husband agrees to indemnify and hold Wife harmless from any claim, debt or obligation arising from ownership of said property. Husband further agrees to refinance said loan to remove Wife as an obligor within thirty (30) days from the date hereof. Pension and Retirement Accounts. Each party agrees to waive any claim they may have to any pension, 401(K), IRA or deferred compensation or other retirement account currently in the name of the other. Husband waives any interest he may have in Wife's TIAA-CREF account having an approximate balance of $75,578.52. Automobiles. Wife agrees to and does hereby sell, set over, transfer and assign all of her right, title and interest in the 1992 Dodge and 2004 Dodge pick-up trucks to Husband, releasing and relinquishing all claims to said automobile. Husband agrees to indemnify and hold Wife harmless from any loan, debt, claim or other obligation arising out of the ownership of said vehicle. Husband agrees to and does hereby sell, set over, transfer and assign all of his right, title and interest in the 2005 Honda Pilot to Wife, releasing and relinquishing all claims to said automobile. Wife agrees to indemnify and hold Husband harmless from any loan debt, claim or other obligation arising out of the ownership of said vehicle. Personal Property. Wife agrees to set over, transfer and assign all her right, title and interest in the following property located at 52 Shughart Road to Husband: 1984 Mack truck, VIN 6 1M2NI87Y2EA005792; 2004 Peterbilt, VIN INPAXUEX24D816180; 1999 New Holland Skid Loader LX565; 2004 Stoltzfus Lime Spreader, serial number M25501104; 2001 EZ Go golf cart, serial number 1339984; 2003 Bri-Mar Dump Trailer; 2001 Gooseneck trailer Pequea G-10 including winch; 2008 six foot trailer with ramp. Payment to Wife. In order to equalize the distribution of marital property between the parties of this agreement, Husband agrees to make a one time payment to Wife of $58,888.18 within thirty (30) days of the date hereof. Eighth: Alimony, Support and Counsel Fees The parties agree to waive any right each may have against the other for alimony, spousal support and counsel fees. Ninth: Confirmatory Documents Husband and Wife covenant and agree that they will forthwith (and within at least fifteen days after demand therefor) execute any and all written instruments, assignments, releases, satisfactions, deeds, notes or such other writings as may be necessary or desirable for the proper effectuation of this agreement. The parties will further deliver to each other whatever personal papers, documents or writings that each now possess which are the property of the other. Tenth: Agreement to Continue in Event of Divorce This agreement shall remain in full force and effect unless and until it is terminated either by mutual written consent of both parties, or to the extent it is appropriately terminated by the death of either party under the terms of 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. In the event that the marriage of the parties hereto is terminated by divorce, this agreement shall nevertheless remain in full force and in effect and shall survive such decree and shall not in any way be affected thereby, except as provided herein. 7 Eleventb: Agreement Binding on Heirs The terms, provisions and conditions of this agreement shall be binding upon any and all of their heirs, executors, administrators, successors and assigns of either the respective parties hereto, except as otherwise herein provided. Twelfth: Applicable Law This agreement shall be construed under the laws of the Commonwealth of Pennsylvania. Thirteenth: Prior Agreements It is understood and agreed that any and all property settlement agreements which may or have been executed prior to the date and time of this agreement are null and void and of no effect. Fourteenth: Void Clauses If any term, condition, 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 respects this agreement shall be valid and continue in full force, effect and operation. No provision of this agreement shall be interpreted for or against any party because that party or that party's representative drafted this agreement in whole or in part. Fifteenth: Enforcement It is expressly understood and agreed by and between the parties hereto that this agreement may be specifically enforced by Husband or Wife in a court of equity, and the parties hereto agree that if an action to enforce this agreement is brought in equity by either party, the other party will make no objection on the alleged ground of lack of jurisdiction of said court on the ground that there is an adequate remedy of law. The parties do not intend or purport hereby to improperly confer jurisdiction on a court in equity by their agreement, but they agree as provided herein for the forum of equity in mutual recognition of the present state of law, and in recognition of the general jurisdiction of courts in equity over agreements such as this one. 8 Notwithstanding anything to the contrary herein, Wife or Husband may also proceed with an action at law for redress of any of his or her rights under the terms of this agreement. In the event that for any reason whatsoever either party is obliged to proceed at law for redress of his or her rights under the terms of this agreement, then it is specifically understood and agreed that for and in specific consideration of the other provisions and convents of this agreement, each shall waive any right to jury trial so as to expedite the hearing and disposition of such case and so as to avoid delay. It is specifically understood and agreed by the parties that in the event of a default under the terms of this agreement, the non-defaulting party shall have the right to file a petition for contempt and request such relief and remedies as authorized by law of the court. Each party further hereby agrees to pay and to save and hold harmless the other party from any and all attorney's fees, costs and legal 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 attorney's fees, costs, and legal expenses and expenses must first be successful in whole or in part, before there would be any liability for attorney fees. All remedies provided by law and all remedies provided for in this agreement for enforcement of this 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. This agreement shall not be deemed to merge into the decree of divorce. 9 In witness whereof, and intending to be legally bound hereby, the parties hereto have hereunto set their hands and seals the date and year first written above. Witness: 10 CARRIE J. CRAIN IN THE,000RT.OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GARY L. CRAIN NO. 09-5380 CIVIL TERM DIVORCE DECREE AND NOW, u t,- it is ordered and decreed that CARRIE J. CRAIN plaintiff, and GARY L. CRAIN bonds of matrimony. , defendant, are divorced from the 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 Property Settlement Agreement between Carrie J. Crain, plaintiff, and Gary L. Crain, defendant, dated January 6, 2011 shall be incorporated but not merged into this Decree. By the Court, Attest: J. 7-A-311d Prothonotary l ?g111- ?.GI mail l 4 axty O corm ll *Hoe niaihd 46 zep- , Tw