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HomeMy WebLinkAbout01-0132KERRY V. SMITH PLA1N'I lief V. CARL L. SMITH DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-132 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, this 12th day of January ,2001, upon consideration of the attached Complaint, it is hereby directed that the parties and their respective counsel appear beforeMelissa P. Greevy, Esq. , the conciliator, at 214 Senate Avenue, Suite 105, Camp Hill, PA 17011 on the 21st day of February ,2001, at 1:00 p.m. for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. FOR THE COURT, By: /s/ Melissa P, Greevy, Custody Conciliato~"~ The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For/nformation about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All an'angements must be made at least 72 hours pr/or to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. 1F YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 KERRY V. SMITH, CARL L. SMITH, Phintiff V. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. t~/.- 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 ff you fail to do so, the case may proceed without you and a Decree of Divorce or annulment may be entered against you by the Court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you. When the ground for divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the office of the Prothonotary. 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 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 717-240-6200 KERRY V. SMITH, Plaintiff VS. CARL L. SMITH, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DIVORCE/CUSTODY COMPLAINT UNDER SECTION 3 01(c) or OF THE DIVORCE CODE COUNT AND NOW comes Plalmiff, KERRY V. SMITH, by her attorney, Diane S. Baker, Esquire, and files this Complaint, based upon the following: 1. PlaintS, KERRY V. SMITH, is an adult individual residing at 530 Btam Court, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant, CARL L. SMITH, is an adult individual residing at 700 Nal/or Drive, #305, Camp Frill, Cumberland County, Pennsylvania 17011. 3. Plaintiff has been a bona fide resident of this Commonwealth for at least six months immediately previous to the filing of this Complaint. 4. Plaintffi and Defendant were married on September 9, 1989, in Mechanicsburg, Cumberland County, Pennsylvania. 5. There have been no prior actions of divorce or for annulment between the panics. 6. Defendant is not presently a member of the Armed Forces on active duty. Plaintiff is not presently a member of the Armed Forces on active duty. 7. Plaintiff has been advised of the availability of marriage counseling and that she may have the right to request the Court to require the parties to participate in such counseling. Being so advised, Plaimiffdoes not request that the Court require the parties to participate in counseling prior to a Divorce Decree being issued by the Court. 8. Plaintiff avers that the ground on which the action is based is that the marriage is irretrievably broken. 9. Plaintiff'requests the Court to enter a Decree of Divorce. COUNT Il - CLAIM FOR EOUITABLE DISTRIBUTION 10. Paragraphs 1 through 9 above are herein incorporated by reference. 11. The Plaintiff and Defendant are owners of various items of personal property, furniture and household furnishings acquired during the marriage which are subject to equitable distribution by the Court, 12. The Plaintiff and Defendant are owners of various motor vehicles acquired during the marriage which are subject to equitable distribution by the Court. 13. The Plaintiff and Defendant singly or jointly have interests in various bank accounts acquired during the marriage which are subject to equitable distribution by the Court. 14. Plaintiff and Defendant own or have an interest in real estate which is subject to equitable distribution by the Court. 15. The Plaintiff and the Defendant have acquired during the marriage other marital property which is subject to equitable distribution by the Court. 2 COUNT Ill CUSTODY 16. Paragraphs 1 through 15 are incorporated herein by reference. 17. Plaintiff seeks to confirm primary custody of CAITLYN PAIGE SMITH, bom September 11, 1995. Plaintiff is the natural mother of the child and Defendant is the natural father of the child. The child was born of the marriage. The child is currently in the custody of Plaintiff. 18. addresses; Plaintiff, Defendant Since birth, the child has resided with the fei/owing persons and at the following 685 Glenn Drive Harrisburg, PA 17111 Birth to August, 1997 Plaintiff and Defendant 530 Brom Court August, 1997 to February 1, 2000 Mechanicsburg, PA 17055 Plaintiff 530 Brom Court February 1, 2000 to present Mechanicsburg, PA 17055 19, Plaintiffhas not participated as a party or a wimess, or in another capacity, in other litigation concerning the custody of the child in this or another court. Plaintiff has no information of a custody proceeding concerning the child pending in a court of this Commonwealth. Plalntiffdoes not know ora person not party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child. 20. Each parent whose parental rights to the child have not been terminated and the person who has physical custody of the child have been named as parties to this action. 3 21. The best interest and permanent welfare of the child will be served by granting the relief requested for the following reasons: a. Plaintiff provides a safe home and a stable and loving environment for the child. b. Plaintiffhas been the primary caretaker of the child since birth. WHEREFORE, Plaintiff requests the Court to enter a Decree: (a) Dissolving the marriage between Plaintiff and Defendant; (b) Granting primary physical and shared legal custody of the minor child to Plainti~ (c) Equitably distributing all marital property owned by the parties hereto; and (d) Such further relief as the Court may determine equitable and just. DATE: Diane S. Baker, Esquiie Supreme Court ID #53200 27 South Arlene Street Post Office Box 6443 Harrisburg, PA 17112-0443 (717) 671-9600 KERRY V. SMITH, Plaintiff VS. CARL L. SMITH, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. : : CIVIL ACTION - LAW : DIVORCE/CUSTODY VERIFICATION I veri~y 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 unswom falsification to authorities. ~c~Cb ~. o~r~ 0 .q 0 111 m 9 KERRY V. SMITH, Plaintiff VS. CARL L. SMITH, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 01-132 : : IN DIVORCE/CUSTODY : CIVIL ACTION - LAW ACCEPTANCE OF SERVICE I, CARL L. SMITH, Defendant in the above-captioned matter, have accepted service of the Complaint in Divorce/Custody as of this, the /~ZCday of ,2001. CARL L. SMITH 700 Nailor Drive, #305 Camp Hill, PA 17011 KERRY V. SMITH, Plaintiff VS. CARL L. SMITH, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA .. : NO. 01-132 : : CIVIL ACTION - LAW : DIVORCE/CUSTODY AFFIDAVIT OF CONSENT 8,2001. 2. A Complaint in Divorce under §3301(c) of the Divorce Code was filed on January 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. 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 true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification to authorities. DATED: KERRY V. SMITH PLAINTiFF KERRY V. SMITH, Plaintiff VS. CARL L. SMITH, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 01-132 : : CIVIL ACTION - LAW : DIVORCE/CUSTODY WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER §3301 (c) 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 ifI 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. § 4904 relating to unsworn falsification to authorities. KERRY V. SMITH PLAINTIFF KERRY V. SMITH, Plaintiff VS. CARL L. SMITH, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA _. : NO. 01-132 : : CIVIL ACTION - LAW : DIVORCE/CUSTODY AFFIDAVIT OF CONSENT 8,2001. 2. A Complaint in Divorce under §3301(c) of the Divorce Code was filed on January 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. 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 true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification to authorities. DATED: CARL L. SMITH DEFENDANT KERRY V. SMITH, Plaintiff VS. CARL L. SMITH, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 01-132 : : CIVIL ACTION - LAW : DIVORCE/CUSTODY WAIVER OF NOTICE OF iNTENTION TO REQUEST ENTRY OF A DiVORCE DECREE LrNDER §3301 (c) 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 ifI do not claim them before a divorce is granted. 3. I understand that I will not be divomed 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. § 4904 relating to unswom falsification to authorities. DATED: CARL L. SMITH DEFENDANT KERRY V. SMITH, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA AND NOW, 2001, upon consideration of the attached Stipulation and Agreement of the Parties, it is hereby ORDERED that custody of the minor child Caitlyn P. Smith, bom September 11, 1995, shall be as follows: 1. The parties shall share legal custody of the minor child. All major decisions such as medical, education and religion concerning the minor child shall be made jointly by Father and Mother. 2. Physical custody of the child shall be as follows: a. Mother shall have custody of the child every Sunday at 9:00 a.m until Friday after work each week. b. Father shall have custody of the child every Friday from aRer work until Sunday at 9:00 a.m and at such other times as agreed upon by the parties. 3. The parties shall alternate or share all major holidays. 4. Father shall always have the child for Father's Day and Mother shall always have the child for Mother's Day. this ORDER v. :NO. 0!-152- : CARL L. SI~ITIt : CIVIL ACTION - LAW Defendant : 5. The parties shall share the child's summer vacation time as equally as possible with the exact days and times to be agreed upon by the parties. 6. Both parties shall be entitled to liberal telephone contact with the child while they are in the custody of the other parent. 7. Both parties shall provide the other parent with the address and phone number where they can be reached in the event of an emergency. 8. The parties shall work together in order to take whatever steps are necessary to ensure the best interests of the subject child. They shall cooperate with each other for the benefit of the child especially regarding discipline and schedules. In the event that either party is unable to exercise their custodial time with the child make-up time shall be arranged as agreed upon by the parties. 9. During any period of custody or visitation the parties to this Order shall not possess or use any controlled substance, neither shall they consume alcoholic beverages to the point of intoxication. The parties shall likewise assure, to the extent possible, that other household members and/or house guests comply with this prohibition. KERRY V. SMITH, Plaintiff Ve CARL L. SMITH Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW STH'ULATION AND AGREEMENT OF THE PARTIES / AND NOW, this day of la'~0~ , 2001~, come the parties, KERRY V. SMITIt, by and through her attorney Diane S. Baker, Esquire, and CARL L. SMITH, pro se, and agree as follows: 1. The parties are the parents of the minor child, Caitlyn P. Smith, bom September 11, 1995. 2. The parties shall share legal custody of the minor child. All major decisions such as medical, education and religion concerning the minor child shall be made jointly by Father and Mother. 3. Physical custody of the child shall be as follows: Mother shall have custody of the child every Sunday at 9:00 a.m until Friday at~er work each week. b. Father shall have custody of the child every Friday from after work until Sunday at 9:00 a.m. and at such other times as agreed upon by the parties. 4. The parties shall alternate or share all major holidays. 5. Father shall always have the child for Father's Day and Mother shall always have the child for Mother's Day. 6. The parties shall share the child's summer vacation time as equally as possible with the exact days and times to be agreed upon by the parties. 7. Both parties shall be entitled to liberal telephone contact with the child while they are in the custody of the other parent. 8. Both parties shall provide the other parent with the address and phone number where they can be reached in the event of an emergency. 9. The parties shall work together in order to take whatever steps are necessary to ensure the best interests of the subject child. They shall cooperate with each other for the benefit of the child especially regarding discipline and schedules. In the event that either party is unable to exercise their custodial time with the child make-up time shall be arranged as agreed upon by the parties. 10. During any period of custody or visitation the parties to this Order shall not possess or use any controlled substance, neither shall they consume alcoholic beverages to the point of intoxication. The parties shall likewise assure, to the extent possible, that other household members and/or house guests comply with thisprohibition. 11. The provisions of this Stipulation have been fully explained to Plaintiff by her attorney, Diane S. Baker, Esquire. Defendant has been advised that he has a fight to counsel and has chosen to waive that fight. 12. The parties agree that this Agreement ~ be entered as Order of Court. IN WITNESS WHEREOF, the parties hereto have set their hands and seal the day and year first above written. WITNESS CARL L. SMITH KERRY V. SMITH Plaintiff, CARL L. SMITH, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01-132 Civil Action - Law In Custody ORDER OF COURT AND NOW, this 17th day of May, 2001, the Conciliator, being advised that the parties reached an agreement and executed a stipulation on February 23, 2001, hereby relinquishes jurisdiction in this case. FOR ~T, Melissa Peel Greevy, Esquire Custody Conciliator KERRY V. SMITH, Plaintiff VS. CARL L. SMITH, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : :NO. 01-132 : : CIVIL ACTION - LAW : DIVORCE/CUSTODY 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) of the Divorce Code. 2. Date and manner of service of the complaint: First class mail, pursuant to an Acceptance of Service signed by the Defendant, dated January l 8, 2001 and filed herewith. 3. (a) Date of execution of the affidavit of consent required by Section 3301(c) of the Divorce Code: bythe Plaintiff on October 21, 2001; bythe Defendant on October 16, 2001. 4. Related claims pending: The Marital Settlemem Agreement dated October 21, 2001, resolved all claims. 5. (b) Date Plaintiff's Waiver of Notice in Section 3301(c) Divorce was filed with the Prothonotary: same as this Praecipe. Date Defendant's Waiver of Notice in Section 33~)-l-~'D?florce was filed with the Prothonotary: same as this Praecipe. /,~-~ '~ DATE: October 23, 2001 (' /'~_~ ~__~ne S. Baker, Esquire Supreme Court ID #53200 27 South Arlene Street Post Office Box 6443 Harrisburg, PA 17112-0443 (717) 671-9600 MARITAL SETTLEMENT AGREEMENT AGREEMENT, made this 7~ day of 0¢[~¢/ , 2001, by and between KERRY V. SMITH, hereinafter referred to as "Wife", and CARL L. SMITH, hereinafter referred to as "Husband". WITNESSETH: WHEREAS, the parties hereto are Husband and Wife, having been married on September 9, 1989, and there is one child born of this marriage, Caitlyn P. Smith, born September 11, 1995; WHEREAS, diverse unhappy differences, disputes and difficulties have arisen between the parties, and it is the intention of Wife and Husband to live separate and apart for the rest of their natural lives, 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 of real and personal property, the equitable distribution of such property; the settling of all matters between them relating to the past, present and future support and/or maintenance o£ Wife by Husband or of Husband by Wi£e; 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 o£ the premises and o£ the mutual promises, covenants and undertakings hereinafter set £orth and for other good and valuable considerations, receipt of which is hereby acknowledged by each of the parties hereto, Wife and Husband, each intending to be legally bound hereby, covenant and agree as follows: 1. AGREEMENT NOT A BAR TO DIVORCE PROCEEDINGS. This Agreement shall not be considered to affect or bar the right of Wife or Husband to a divorce on lawful grounds if such grounds now exist or shall hereafter exist or to such defense as may be available to either party. This Agreement is not intended to condone and shall not be deemed a condonation on the part of either party hereto of any act or acts on the part of the other party which have occurred prior to or which may occur subsequent to the date hereof. 2. EFFECT OF DIVORCE DECREE. The parties agree that, unless otherwise specifically provided herein, this Agreement shall continue in full force and effect after such time as a final decree in divorce may be entered with respect to the parties. It is the intent of thc parties hereto that this Agreement shall create contractual rights and obligations entirely independent of any Court Order and that this Agreement may be enforced by contract remedies in addition to any other remedies which may be available pursuant to the terms of this Agreement or otherwise under law or equity. 3. AGREEMENT TO BE INCORPORATED IN DIVORCE DECREE. The parties agree that the terms of this Agreement shall bc incorporated, but not merged, into any divorce decree which may be entered with respect to them. The parties further agree that the Court of Common Pleas which may enter such divorce decree shall retain continuing jurisdiction over the parties and the subject matter of the Agreement for the sole purpose of enforcement of any of the provisions thereof and not for modification of the Agreement. 4. DATE OF EXECUTION. Thc "date of execution" or "execution date" of this Agreement shall be defined as the date upon which it is executed by the parties if they have each 2 executed the Agreement on the same date. Otherwise, the "date of execution" or "execution date" of this Agreement shall be defined as the date of execution by the party last executing this Agreement. 5. ADVICE OF COUNSEL. The provisions of this Agreement and their legal effect have been fully explained to Wife by her attorney, Diane S. Baker, Esquire. Husband has been advised that he has a right to counsel and should obtain counsel but has chosen to waive that right and proceed without counsel. The parties acknowledge that they fully understand the facts and they acknowledge and accept that this Agreement is, in the circumstance, fair and equitable and that it is being entered into freely and voluntarily and that execution of this 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 parties further acknowledge that they have each made to the other a full and complete disclosure of their respective assets, estate, liabilities, and sources of income and that they waive any specific enumeration thereof for the purposes of this Agreement. Each party agrees that he and she shall not, at any future time, raise as a defense or otherwise the lack of such disclosure in any legal proceeding involving this Agreement, with the exception of disclosure that may have been fraudulently withheld. 6. PERSONAL RIGHTS. Wife and Husband, at all times hereafter, may and shall live separate and apart. They shall be free from any control, restraint, interference or authority, direct or indirect, by the other in all respects as fully as if they were unmarried. Each may, for his or her separate use or benefit, conduct, carry on and engage in any business, occupation, profession or employment which to him or her may seem advisable. 3 7. SUBSEQUENT RECONCILIATION. The parties agree that the terms of this Agreement shall not be affected by their subsequent co-habitation or resumption of marital relations, unless the parties otherwise specifically agree in writing. 8. MUTUAL RELEASES. Husband and Wife each do hereby mutually remise, release, quitclaim and forever discharge the other and the estate of the other, for all time to come, and for all purposes whatsoever, of and from any and all rights, title and interests, or claims in or against the property (including income and gain from property hereafter accruing) of the other or against the estate of such other, of whatever nature or wheresoever situate, which he or she now has or at any time hereafter may have against the other, the estate of the other or any part thereof, whether arising out of any former acts, contracts, engagements or liabilities of the other or by way of dower or curtesy, or claims in the nature of dower or curtcsy or widow's or widower's fights, family exemption or similar allowance, or under the intestate laws, or the right to take against the spouse's will; or the fight to treat a lifetime conveyance by the other as testamentary, or all other rights of a surviving spouse to participate in a deceased spouse's estate, whether arising under the laws of (a) Pennsylvania, (b) any State, Commonwealth or territory of the United States, or (c) any other country, or any fights which either party may have or at any time hereafter shall have for past, present or future support or maintenance, alimony, alimony pendente lite, counsel fees, property division, costs or expenses, whether arising as a result of the marital relation or otherwise, except, all rights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any provision thereof. It is the intention of Husband and Wife to give to each other by the execution of this 4 Agreement a full, complete and general release with respect to any and all property of any kind or nature, real, personal or mixed, which the other now owns or may hereafter acquire, except and only except all rights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any provision thereof. It is further agreed that this Agreement shall be and constitute a full and final resolution of any and all claims which each of the parties may have against the other for equitable division of property, alimony, counsel fees and expenses, alimony pendente lite or any other claims pursuant to the Pennsylvania Divorce Code or the divorce laws of any other jurisdiction. 9. DATE OF SEPARATION. The parties agree that for the purpose of equitable distribution the date of separation of the parties was on or about January 20, 2000. 10. RETIREMENT ACCOUNTS AND PENSION PLANS. Husband has been employed during the marriage by Hershey Foods Corporation and New World Pasta and as a result of said employment is the title owner of a 401(k) plan valued at approximately $180,000, a portion of which is marital property. Wife was employed during the marriage by Marshall, Smith & Haddick and as a result of said employment is the title owner of a 401(k) plan valued at approximately $128,000, a portion of which is also marital property. Wife is currently employed by the Commonwealth of Pennsylvania however that employment is post-separation. Both parties waive any rights they may have to the retirement plan(s) of the other. Both parties shall execute all documents necessary to give effect to this paragraph upon request. 11. PERSONAL PROPERTY. Husband and Wife do hereby acknowledge that they have divided their tangible personal property, including, but without limitation, jewelry, 5 clothes, furniture, fumishings, rugs, carpets, household equipment and appliances, pictures, books, works of art and other personal property in as equitable a manner as possible. All such property currently in possession of Wife shall become the sole and exclusive property of Wife except for those items set forth on Exhibit A of this Agreement which shall be transferred to Husband upon his request. All such property currently in possession of Husband and the items set forth on Exhibit A shall become the sole and exclusive property of Husband. The parties do hereby specifically waive, release, renounce and forever abandon whatever claim, if any, he or she may have with respect to the above items which shall become the sole and separate property of the other. 12. AFTER-ACQUIRED PERSONAL PROPERTY. Each of the parties shall hereafter own and enjoy, independently of any claim or right of the other, all items of personal property, tangible or intangible, hereafter acquired by him or her, with full power in him or her to dispose of the same as fully and effectively, in all respects and for all purposes, as though he or she were unmarried. 13. AUTOMOBILES. The parties are the owners of a 1991 Volvo which shall become the sole and separate property of Wife. There is no debt on this vehicle. The parties are also the owners of a 1991 Chrysler which shall become the sole and separate property of Husband. There is no debt on this vehicle. Both parties agree to execute all documents necessary to implement this paragraph upon request. 14. BANK ACCOUNTS. The parties agree that all joint bank accounts have already been closed and divided to the satisfaction of the parties and they have no remaining joint 6 bank accounts. Any individual accounts owned by the parties shall become the sole and separate property of the party in whose name the account is currently titled and both parties waive any rights they may have to the bank account(s) of the other. 15. WIFE'S LAW PRACTICE. The parties acknowledge that at the time of separation Wife was a shareholder in a law practice known a Marshall, Smith & Haddick. Wife has since resigned from the law practice. In consideration of her interest in said law practice, Wife received the stun of $5,000 which shall become her sole and separate property. 16. CURRENT LIABILITIES. Except as set forth elsewhere in this Agreement, all debts accumulated during the marriage are in the sole and separate name of the individual parties and shall become the sole and separate responsibility of the named party. 17. WARRANTY AS TO EXISTING OBLIGATIONS. Each party represents that they have not heretofore incurred or contracted for any debt or liability or obligations for which the estate of the other party may be responsible or liable, except as may be provided for in this Agreement. Each party agrees to indemnify and hold the other party harmless for and against any and all such debts, liabilities or obligations of every kind which may have heretofore been incurred by them, including those for necessities, except for the obligations arising out of this Agreement. 18. WARRANTY AS TO FUTURE OBLIGATIONS. Wife and Husband each covenant, warrant, represent and agree that, with the exception of obligations set forth in this Agreement, neither of them shall hereafter incur any liability whatsoever for which the estate of the other may be liable. Each party shall indemnify and hold harmless the other party for and 7 against any and all debts, charges and liabilities incurred by the other after the execution date of this Agreement, except as may be otherwise specifically provided for by the terms of this Agreement. 19. LIFE INSURANCE. The parties agree that they shall both maintain life insurance policies on their own life in the amount of $100,000 naming the other party as beneficiary until such time as the minor child Caitlyn has attained age eighteen (18) and has completed high school or is otherwise emancipated. Both parties shall provide proof of coverage to the other party upon request. Except as required above, any other life insurance policies owned by the parties shall become the sole and separate property of the party in whose name the policy is in. Except as set forth above, both parties specifically waive any rights which they may have to said policies by virtue of having been a named beneficiary thereon. 20. REAL ESTATE - MARITAL RESIDENCE. The parties are the owners of a residence located at 530 Brom Court, Mechanicsburg, Cumberland County, Pennsylvania. Husband agrees that he shall transfer his interest in this residence to Wife. Wife shall be solely responsible for the mortgage with First nationwide Mortgage, account number 0022917926 along with the taxes, insurance, utilities and all other expenses related to said residence and agrees to indemnify and hold Husband harmless therefrom. Wife further agrees that within ninety (90) days of the date of execution of this Agreement she shall refinance the mortgage, removing Husband's name from responsibility therefrom. Wife shall be solely responsible for all costs related to the refinancing including deed preparation. Wife agrees that, absent compelling cimumstances, she shall continue to reside in the marital residence with the minor child for a 8 minimum of five (5) years. In the event that Wife fails to comply with this residency requirement she shall pay to Husband the sum of $16,666 plus fifty percent (50%) of the net proceeds of the sale to the extent the sale price exceeds $250,000. Husband agrees to sign all documents necessary to implement this paragraph upon request including execution of the deed upon proof of refinancing. 21. PAYMENT TO HUSBAND. In consideration of Husband's interest in the marital residence, Wife agrees to pay to Husband the sum of $30,000 upon refinancing of the marital residence as set forth in Paragraph 20 above. 22. PAST DUE TAXES. 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 any 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. The parties agree that they shall file a joint tax return for tax year 2000 as soon as possible. Husband shall be responsible for preparation of the tax return which shall be filed within thirty (30) days of the date of execution of this Agreement. In the event that the parties owe taxes they shall share the responsibility equally. Likewise, in the event that the parties receive a refund or rebate it shall be divided equally between the parties upon receipt. 23. TAX DEDUCTIONS FOR MINOR CHILDREN. Wife shall be entitled to claim the minor child Caitlyn as an exemption for income tax purposes until the tax year following Caitlyn's graduation from high school. The parties further agree that if they are entitled to claim Caitlyn for tax purposes while she attends college, the parent contributing towards the majority of the college costs shall be entitled to the deduction. Both parties agree to execute all documents necessary to implement this paragraph upon request. 24. SUPPORT. The parties agree that they shall attempt to work together to determine an appropriate arrangement for Husband to contribute towards Caitlyn's financial support. Husband shall pay all day care and summer camp expenses and shall also contribute towards Caitlyn's personal needs including extra-curricular activities, clothing and other needs. It is the intention of the parties that the amount of Husband's direct contributions be comparable to the child support amount set by the Pennsylvania Supreme Court Guidelines. The provisions of this paragraph may be modified by either party in accordance with the Supreme Court Guidelines in the event of a changes of circumstances or as change. 25. HEALTHCARE COVERAGE. income and Caitlyn's expenses Husband shall provide medical coverage for the minor child as available through his employer. 26. COLLEGE EXPENSES. The parties agree that they shall contribute as reasonably possible towards the costs of a four year college education, including tuition and room and board, for their child. The amount of each parent's contribution shall be agreed upon 10 after consideration of the current financial position of each parent and the financial needs of the child. The child shall obtain all available loans, grants, scholarships, and work study programs. 27. BANKRUPTCY. It is hereby understood and agreed by and between the parties that their obligations pursuant to this agreement shall not be affected by any bankruptcy proceeding and shall not be deemed to constitute or be a dischargeable debt of a bankruptcy. Both parties warrant that he/she has not heretofore instituted any proceedings pursuant to the bankruptcy laws nor are there any such proceedings pending with respect to him/her which have been initiated by others. 28. PAYMENT OF LEGAL FEES. Husband shall be responsible for payment of his legal fees, if any. In addition, Husband shall contribute the sum of $250 towards Wife's legal fees within thirty (30) days of the date of this agreement. Wife shall be responsible for payment of her remaining legal fees. 29. ALIMONY, ALIMONY PENDENTE LITE AND SPOUSAL SUPPORT. Including the benefits provided for in this Agreement, Husband and Wife each have sufficient property and/or income to provide for his or her reasonable needs. Therefore, notwithstanding any provision in the Divorce Code to the contrary, and except as otherwise specifically set forth in this Agreement, Wife and Husband expressly waive, discharge and release any and all rights or claims which he or she may have, now or hereafter, by reason of the parties' marriage, to alimony, alimony pendente lite, support, maintenance and/or any other such benefits resulting from the parties' status as husband and wife. It shall be, from the execution of this Agreement, 11 the sole responsibility of each of the respective parties to sustain themselves without seeking any additional support from the other party, except as provided herein. 30. APPLICABILITY OF TAX LAW TO PROPERTY TRANSFERS. The parties hereby agree and express their intent that any transfer of property pursuant to this Agreement shall be within the scope and applicability of the Deficit Reduction Act of 1984 hereinafter the "Act"), specifically, the provisions of said Act pertaining to the transfers of property between spouses and former spouses. The parties agree to sign and cause to be filed any elections or other documents required by the Internal Revenue Service to render the Act applicable to the transfers set forth in this Agreement without recognition of gain on such transfers and subject to the carry-over basis provisions of the said Act. In the event that there is a transfer tax assessed then said tax shall be the responsibility of the party receiving the property. 31. MUTUAL CONSENT DIVORCE. The parties agree and acknowledge that their marriage is irretrievably broken, that they do not desire additional marital counseling, and that they both consent to the entry of a decree in divorce pursuant to Section 3301(c) of the Pennsylvania Divome Code, Act 26 of 1980, as may be amended (herein referred to as the Code). Accordingly, both parties agree to execute such consents, affidavits, or other documents and to direct their respective attorneys to file such consents, affidavits, or other documents as may be necessary to promptly proceed to obtain a divorce pursuant to said Section 3301(c) of The Code. Upon request, to the extent permitted by the law and the applicable Rules of Civil Procedure, the named defendant in such divorce action shall execute any waivers of notice or other waivers necessary to expedite such divorce. 12 32. WAIVER OR MODIFICATION TO BE IN WRITING. No modification or waiver of any of the terms hereof shall be valid unless in writing and signed by both parties, and no waiver of any breach hereof or default hereunder shall be deemed a waiver of any subsequent default of the same or similar nature. 33. MUTUAL COOPERATION. Each party shall, at any time and from time to time hereafter, take any and all steps and execute, acknowledge and deliver to the other party any and all further instruments and/or documents that the other party may reasonably require for the purpose of giving full force and effect to the provisions of this Agreement. 34. LAWS OF PENNSYLVANIA APPLICABLE. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania which are in effect as of the date of execution of this Agreement. 35. AGREEMENT BINDING HEIRS. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 36. OTHER DOCUMENTATION. Wife and Husband covenant and agree that they will forthwith (and within at least ten (10) 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. 37. NO WAIVER OF DEFAULT. This Agreement shall remain in full fome and effect unless and until terminated under and pursuant to the terms of this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall 13 in no way affect the right of such party hereafter to enfome the same, nor shall the waiver of any default or breach of any provision hereof be construed as a waiver of any subsequent default or breach of the same or similar nature, nor shall it be construed as a waiver of strict performance of any other obligations herein. 38. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the parties, and there are no representations, warranties, covenants or undertakings other that those expressly set forth herein. The parties further acknowledge that any previous agreements between them are incorporated herein. 39. ENFORCEMENT OF AGREEMENT. If either party breaches any provision of this Agreement, the other party shall have the right, at his or her selection, to sue for damages for such breach or to require specific performance. The party breaching this Agreement shall be responsible for payment of legal fees and costs incurred by the other party in enforcing their rights under this Agreement or for seeking such other remedies of relief as may be available to him or her. 40. SEVERABILITY. If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law otherwise, then only that term, condition, clause or provision shall be stricken fi.om this Agreement and, in all other respects, this Agreement shall be valid and continue in full force, effect and operation. Likewise, the failure of any party to meet her or his obligations under any one or more of the paragraphs herein, with the exception of the satisfaction of the conditions precedent, shall, in no way, void or alter the remaining obligations of the parties. 14 41. HEADINGS NOT PART OF AGREEMENT. Any headings preceding the text of the several paragraphs and subparagraphs hereof are inserted solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect. IN WITNESS WHEREOF, the parties hereto have set their hands and seal the day and year first above written. KERRY V. SMITH WITNESS 15 EXHIBIT A ITEMS TO TRANSFER TO HUSBAND 1. Desk 2. Credenza 3. Bookcase 4. Recliner 5. Copier 6. Large snow blower 7. Lawn mower (newer) 8. Garage cabinets 9. Tool bench 10. Hand and power tools 11. Master bedroom dressers (2) 16 COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN On this, the 2t day of ;SS. ,2001, before me a Notary Public of the Commonwealth of Pennsylvania personally appeared KERRY V. SMITH known to me to be the person whose name is subscribed to the within Agreement and acknowledged that she executed the same for the purposes therein contained. 1N WITNESS WHEREOF, I have hereunto set my hand and official seal. Notary Public 17 COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN On this, the 1~n*/1 day of ,2001, before me, a Notary Public for the Commonwealth of Pennsylvania, personally appeared CARL L. SMITH known to me to be the person whose name is subscribed to the wittfin Agreement and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. Notarial ~eal O~orglna Z, Hltz, Notar~ Public Harflsbul'g, Dauphin County My Commission Expires Oct, 13, 2003 Me~llber, Penns,/Ivania Association ot No~fles Notary Public 18 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF PENNA. KERRY ¥. SMITH, Plaintiff VERSUS CARL L. SMITH, Defendant NO. 01-132 DECREE IN DIVORCE AND NOW, 2001 , IT IS ORDERED AND DECREED THAT KERRY V. SMITH AND CARL L. SMITH , PLAINTIFF, , 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; None. The Marital Settlement Agreement between the parties dated October 21, 2001 is hereby ATTEST: ated but not merged. PROTHONOTARY