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HomeMy WebLinkAbout10-2202TAMMY S. SMITH, Plaintiff VS. MARK D. SMITH, Defendant IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- Ravel CIVIL TERM 0 " .11 o CIVIL ACTION -LAW IN DIVORCE mT' XM. z -A-, :t7 NOTICE TO DEFEND AND CLAIM RIGHTS i>- f , z ., D YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim 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 marriage, you must request marriage counseling. A list of marriage counselors is avail- able in the Office of the Prothonotary at CUMBERLAND COUNTY COURTHOUSE CARLISLE, PENNSYLVANIA 17013 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. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 t-1' MAX J. SMITH, JR., E uire JARAD W. HANDELMAN, Esquire Attorney for Plaintiff P.O. Box 650 ?r v S1 ? l t _? fir} Q? Hershey, PA 17033 6t# R/ kl-?_ (717) 533-3280 I 4k Max J. Smith, Jr., Esquire Attorney I.D. #32114 Jarad W. Handelman, Esquire Attorney I.D. #82629 James, Smith, Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Telephone: 717-533-3280 Fax: 717-533-2795 e-mail: mis@isdc.com TAMMY S. SMITH, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 2010- CIVIL TERM MARK D. SMITH, CIVIL ACTION -LAW Defendant IN DIVORCE COMPLAINT IN DIVORCE AND NOW comes the Plaintiff, TAMMY S. SMITH, by her attorney, MAX J. SMITH, JR., Esquire, and seeks to obtain a Decree in Divorce upon the grounds hereinafter more fully set forth: 1. The Plaintiff, TAMMY S. SMITH, is an adult individual and citizen of the United States of America, whose address is 317 Blacklatch Lane, Camp Hill, Cumberland County, Penn- sylvania 17011. 2. The Defendant, MARK D. SMITH, is an adult individual and citizen of the United States of America, whose address is 4 DeWalt Drive, Mechanicsburg, Cumberland Coun- ty, Pennsylvania 17050. 3. Plaintiff and Defendant have been bona fide residents in the Commonwealth of Pennsylvania for at least six (6) months immediately previous to the filing of this Complaint. 4. Plaintiff and Defendant were married on or about May 28, 1994 in New Cumberland, Pennsylvania. 5. Plaintiff avers that there are two (2) children of the parties under the age of 18, namely: ZACHARY D. SMITH, born October 24, 1996 and TAYLOR N. SMITH, born April 21, 2004. 6. Neither Plaintiff nor Defendant is a member of the United States Armed Services. 7. Plaintiff and Defendant have both been advised of the availability of marital counseling and that each may have the right to request that the court require the parties to participate in counseling. 8. Plaintiff avers that there has been no prior action for divorce or annulment of the marriage filed by either party in this or any other jurisdiction. 9. Plaintiff avers that the marriage is irretrievably broken. WHEREFORE, Plaintiff prays your Honorable Court to enter a Decree of Divorce from the bonds of matrimony. Respectfully submitted, Date: March 31, 2010 *7! MAX J. SMITH, JR squire I.D. No. 32114 JARAD W. HANDELMAN, Esquire I.D. No. 82629 James, Smith, Dietterick & Connelly LLP P.O. Box 650 Hershey, PA 17033 (717) 533-3280 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. _' ~ ~., JULIE A. WEHNERT, ESQ. ~~ "~' ~ " ~ ATTORNEY I.D. 307900 ~ r '~ KOPE & ASSOCIATES, LLC ~b 395 St. Johns Church Road, Suite 101 °. ~ ~" ~ Camp Hill, PA 17011 - ~.}~~ z~. - ~ °~==:~ ~ (717) 761-7573 ~`~~' ~ ~~ . -=~ jwehnert@kopelaw.com Attorney for Plaintiff ~`~~~~= `_.-~ `~~ -~.~ TAMMY S. SMITH, IN THE COURT OF COMMON PLEAS Plaintiff, :CUMBERLAND COUNTY, PENNSYLVANIA vs. N0.2010-2202 MARK D. SMITH, :CIVIL ACTION -LAW Defendant, IN CUSTODY STIPULATION AND NOW, this s% day of Od• , 2010, it is STIPULATED and AGREED by and befin,~eer. the parties, Tammy S. Smith (hereinafter "Mother"), and Mark D. Smith (hereinafter "Father), intending to be legally bound hereby, that an Order regarding the custody and visitation of their minor biological children Zachary Smith, born. October 24, 1996 and Taylor Smith, born April 21, 2004 (hereinafter the "children") shall be entered as follows: 1. Legal Custody: It is the intention of the parties and the parties agree that Mother and Father will have shared legal custody of the children. The parties agree that major decisions concerning the children, including, but not limited to, the children's health, welfare, education, religious training and upbringing shall be made by them jointly, after discussion and- consultation with each other, with a view toward obtaining and following a harmonious policy in the children's best interest. Each parent agrees ~n~o~t to im~ppair the other parent's right to share legal custody of the children. The parents " ~~' _L~ TSS MDS religious or medical information, both parents shall execute a release within ten (10) days of any written request by the other parent or his or her counsel. 2. Primary Physical Custody: Primary physical custody of the children shall be with the Mother. 3. Partial Physical Custody: Father shall have rights of partial physical custody of the children every other weekend from Friday at 5:30 pm until Sunday at 5:30 pm. 4. Holidays: Mother and Father shall both enjoy holidays with the children. In the absence of agreement to the contrary, the custody of the children during the holidays shall be as follows: a. Christmas: Custody of the children during the Christmas holiday shall be divided into two segments. Segment A runs from 12:00 pm on December 24th until 12:00 pm on December 25th. Segment B runs from 12:00 pm on December 25th until 12:00 pm on December 26th. Mother shall have custody during Segment A in all even numbered years and Segment B in all odd numbered years. Father shall have custody during Segment B in all even numbered years and Segment A in all odd numbered years. If it Father's custodial time during Segment A, he will relinquish custody to Mother the evening of December 24th to facilitate the children's attendance at church services with Mother. Mother will return the children to Father after church services are finished in order for Father to complete his custodial time. ~~ ~~ TSS MDS b. Easter: Custody of the children during the Easter holiday shall be as follows: Mother shall have the children from 8:00 am on Easter morning until 1:00 pm in the afternoon. Father shall have custody from 1:00 pm until 7:00 pm. c. Mother's Day and Father's Day: Mother will always have custody of the children from 9 am until 8 pm on Mother's Day. Father will always have custody of the children from 9 am until 8 pm on Father's Day. d. Other Holidays: Father and Mother agree to share custody of the children on all other holidays, specifically including New Years' Day, Memorial Day, Independence Day, Labor Day, and Thanksgiving. Custodial time on these holidays shall commence at 9 a.m. and conclude at 8 p.m. The parties will alternate these holidays, with Mother enjoying custody of the children on New Years' Day, Independence Day and Thanksgiving in all even years, and Memorial Day and Labor Day in all odd years. Father shall enjoy custody of the children on New Years' Day, Independence Day and Thanksgiving in all odd years, and Memorial Day and Labor Day in all even years. 5. Holiday Time: Holiday time shall take priority over regular custodial time; once the Holiday time has ended, the parties shall return to their normal custodial schedule. 6. Vacation Time: Each parent shall be entitled to (2) two full weeks of vacation time with the children during the calendar year. The parties shall not take these weeks consecutively. The party intending on exercising such right shall notify the other parent by writing no less than thirty days prior to the onset of said vacation. In the ~5S ~n05 TSS MDS event that the parties both intend to utilize vacation on the same dates, the party providing notice first shall prevail and shall be entitled to vacation custody on those dates. The party intending on exercising such right of vacation time shall provide the other parent all details of the vacation including but not limited to transportation, accommodations and itinerary. 7. Additional time: Mother and Father may make agreements for additional times of custody, and/or altered times of custody. Should the parties choose to deviate from the custody schedule in their order, by agreement, on occasion or on a regular basis, these agreements shall not modify the regular custody schedule. 8. Transportation: Mother and Father shall share responsibility for the transportation for the children. 1n the absence of agreement to the contrary, the person relinquishing his or her custodial period shall be responsible for the transportation. 9. At all times, the children shall be secured in the appropriate passenger restraints when being transported in a vehicle. No person transporting the children shall consume alcoholic beverages prior to transporting the children, or be under the influence of alcohol or a controlled substance while transporting the child. 10. Late for Exchange: In the event that any parent is more than 20 minutes late for a scheduled custody exchange, in the absence of a telephone call or other communication from the parent, the other parent may assume that the parent who is late has chosen not to exercise that period of custody, the period will be forfeited, and the other parent will be free to make other plans with the children. ~ ~~5 TSS MDS 11. Parents should provide one another with a phone number and address where the children may be contacted, whenever reasonably possible. This principle applies to situations such as vacations. Each parent should be promptly and politely responsive to the other parent's telephone calls. Each party agrees to supply the name, address and phone numbers of any persons in whose care the children will be for a period in excess of forty-eight (48) hours, and for each person or entity which may provide day care for the children. 12. During any period of custody or visitation the parties to this Order shall not excessively consume alcoholic beverages, possess or use any controlled substance, nor smoke cigarettes inside the residence or vehicle. The parties shall likewise assure, to the extent possible, that other household members and/or houseguests comply with this prohibition. 13. Telephone Contact: Each parent shall be entitled to reasonable telephone contact with the children which shall not be excessive. Both parties agree to use common sense in scheduling telephone calls. 14. Extracurricular Activities: Each parent shall provide to the other at least forty-eight (48) hours advance notice of school or other activities, whenever possible. During the times that each parent has custody of the children, he or she will make certain that the children attend any extracurricular activities, and will be responsible for transporting the children to and from those activities, including preparations and/or practices for those activities. ~~ ~~ TSS MDS Neither parent shall sign up the children for any activity unless the children definitely desire to attend that activity. Neither parent shall sign the children up for any activity that takes place during the other parent's period of custody without the consent of the other parent, which consent shall not be unreasonably withheld. Participation in activities during the school year is contingent upon the children maintaining passing grades. 15. Disparaging Remarks: Each parent agrees not to attempt to alienate the affections of the children from the other and will make a special conscious effort not to do so. Both parents shall establish a no-conflict zone for their children and refrain from and, to the extent possible, shall not permit third parties from making such comments in the presence of the children whether the children are sleeping or awake. Each parent shall speak respectfully of the other whether it is believed the other reciprocates or not. Each parental figure shall refer to the other by the appropriate role name such as Mom, Dad, your grandmother, etc. Each parent should agree to refrain from encouraging the children to provide reports about the other parent. Communication should always take place directly between parents, without using the child as an intermediary. 16. Relocation: The parties hereby agree that neither shall relocate more than thirty miles from his or her current residence, where the other parent does not agree to the relocation in writing. The parties shall notify the other at least sixty days prior to the relocation, where possible. Where a party intends to move more than thirty miles from his or her current residence, the other party shall be notified and his or her consent received prior to the relocation. ~~ TSS MDS 17. Applicable Laws: Any provision in this Agreement regarding child custody and visitation shall be governed and enforceable as set forth in the applicable Pennsylvania Rules of Civil Procedure, as well as any other remedies available at iaw or in equity. 18. Modification: The provisions of this Agreement may only be modified by a further Order of Court or a written agreement between the parties which has been submitted to the Court for further Order. 19. The parties hereby agree that the terms of this Custody Stipulation shall be entered as a Final Order of Court in the captioned matter, superseding in full any prior Orders entered in this matter. James, Smith, Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Tele one 17) 533- 280 Max J. Smit , Jr., Es ire Attorney for Plaintiff Kope & Associates, LLC 395 St. Johns Church Road Camp Hill, PA 17011 J lie A. Wehnert, Esqui A orney for Defendant Tammy S. Smith 31 lacklatch Lane Ca Hill, PA 17011 ntiff Mark D. Smith 4 De Walt Drive Mechanicsburg, PA 17 50 J~ ` Defendant ~~ TSS MDS NOV 0 4Z010 TAMMY S. SMITH, : IN THE COURT OF COMM N PLEAS OF Plaintiff : CUMBERLAND COUNTY, ENNSYLVANIA V. : NO. 2010-2202 CIVIL ACTI N - LAW MARK D. SMITH Defendant : IN CUSTODY ORDER OF COURT AND NOW, this 2nd day of November, 2010, being advise that the parties have reached a stipulated agreement, the Conciliator hereby relinquishes jurisdiction in this matter. FOR THE COURT, M. Verney, Esqui e, Custody C: -' c? " M "'' C> { I N 0 5 2010 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO 2010 2202 vs. - MARK D. SMITH, CIVIL ACTION - LAW Defendant, : IN CUSTODY, CUSTODY ORDER ADOPTING STIPULATION OF PARTIES AND NOW, this ,(J ?iday of ow2010, it is hereby ORDERED that the terms, conditions and provisions of the attached Custody Stipulation are adopted as an Order of Court as if set forth herein at length. TAMMY S. SMITH, Plaintiff, BY THE COURT: Xt v • i' Judge l:.,G7? b ?.S ?Yt`d C ??G? ITT Il s I tv '71 . y r n s ?" C JIVIDEN & WEHNERT, LLC JULIE A. WEHNERT, ESQ ATTORNEY I.D. 307900 3461 Market Street, Suite 101 Camp Hill, PA 17011 (717) 730-3700 jawehnert@gmail.com TAMMY S. SMITH, Plaintiff, vs. MARK D. SMITH, Defendant. t t 1 d.?,i, CJ Attorney for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAN COUNTY, PENNSYLVANIA NO. 2010-2202 CIVIL ACTION - LAW IN DIVORCE PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of Julie A. Wehnert, Esquire on behalf of Kope & Associates, LLC and enter the appearance of Julie A. Wehnert, Esquire on behalf of Jividen & Wehnert, LLC as attorneys for the Defendant, Mark D. Smith in the above- captioned action. Date: ie A. Wehnert, Esquire iden & Wehnert, LLC 3461 Market Street, Suite 101 Camp Hill, PA 17011 Tele: (717) 730-3700 Fax: (717) 730-3770 CERTIFICATE OF SERVICE I, Julie A. Wehnert, Esquire do hereby certify that on this day of March, 2011, 1 served a true and correct copy of the foregoing Praecipe for Entry of Appearance via regular U.S. First Class mail, postage prepaid, addressed as follows: Max J. Smith, Esq. James, smith, Dietterick & Connelly, LLP P. O. Box 650 Hershey, PA 17033 F JUF' A. WEHNERT, ESQUIRE 1 Market Street, Suite 101 Camp Hill, PA 17011 Supreme Court ID# 307900 (717) 730-3700 Attorney for Defendant TAMMY S. SMITH, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2010-2202 CIVIL TERM MARK D. SMITH, : CIVIL ACTION - LAW Defendant : IN DIVORCE MOTION FOR APPOINTMENT OF MASTER ® Plaintiff ? Defendant, moves the court to appoint a master with respect to the following claims: ® Divorce ® Distribution of Property ? Annulment ? Support ? Alimony ? Counsel Fees ? Alimony Pendente Lite ? Costs and Expenses r-N c -?? and in support of the motion states: rn= z 1. Discovery is complete as to the claim(s) for which the appointment of master is ?; r rn- -urn requested. t _ 2. The non-moving party ® has ? has not appeared in the action ' =p ? personally ® by counsel, Julie A. Wehnert, Esquire. C) z? ?,c w ?rn 3. The statutory ground(s) for divorce ? is ® are irretrievable breakdown. C.4 z> 4. Delete the inapplicable paragraph(s): (c) The action is contested with respect to the following claims: equitable distribution. 5. The action ? involves ® does not involve complex issues of law or fact. 6. The hearing is expected to take (hours) one-half (days). 7. Additional information, if any, relevant to the moti : Date: May 31, 2011 Name: Max J. S/mith, Jr., E uire Attorney for ® Plaintiff El Defendant AND NOW d d-01/ if- 11;AZiC6 ?i?a21?Esquire, is appointed master with respect to the following claims: Zo 44,x' , M0LXj.SmiA,&) ;q James 3rhi'th Diener&_* caftil y Julie A. Wehnerl-, ?, JiYiden`+ ' U*r;;1i', 0 BY THE COURT: rn Nom.. C) N C3 3-n rn -? rn F11 ED-OFFICE" T11E PR0Ti'll0 0T, 2011JUL22 PM 12: '3'2' Max J. Smith, Jr., Esquire Attorney I.D. #32114 Jessica E. Lowe, Esquire Attorney I.D. #208041 James, Smith, Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Telephone: 717-533-3280 Fax: 717-533-2795 e-mail: mjsCa),jsdc.com TAMMY S. SMITH, vs. MARK D. SMITH, Plaintiff Defendant CUM8ERLAIN D C0,UIll` Y PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2010-2202 CIVIL TERM CIVIL ACTION -LAW IN DIVORCE PRE-TRIAL STATEMENT OF PLAINTIFF, TAMMY S. SMITH PURSUANT TO PA.R.C.P. 1920.33(b) 1. ASSETS A. MARITAL ASSETS ASSET VAL UE DATE OF VAL UATION NON-MARITAL PORTION LIEN Spears $11,999.92 DOS No No Manufacturing 401(k) (H) Sovereign Bank $1,643.96 4/6/09 No No IRA (H) 1 Team Rahal $30,562.20 10/1/10 No No 401(k) (W) Sponaugle $9,599.46 1/1/10 No No 401(k) (W) Sponaugle $10,840.97 1/1/10 No No Profit Sharing Plan (W) Mass Mutual $9,694.20 12/31/09 No No IRA (W) American Funds $6,851.23 12/31/09 No No (J) (College savings plan for children) 2005 Honda $8,665.00 Present No No Pilot (W) Chevy Truck (H) $3,625.00 Present No No Members First $899.40 1/25/10 No No Checking Account (J) Members First $9,579.61 1/25/10 No No Savings Account (J) Collectibles (J) $1,000.00 Present No No (Removed from marital residence by Husband) Misc. Personal TBD No No Property (J) B. NON-MARITAL ASSETS ASSET VALUE DATE OF LIEN REASON VAL UATION FOR EXCLUSION 317Blacklatch $270,0001 2/9/10 Yes On March 6, Lane, Camp Hill ($216,375.00 2010 (prior to (W) as of 3/15/10) Wife filing the divorce complaint), Husband transferred all of his interest in the marital residence to Wife for consideration of $1.00. Husband was represented by counsel at the time. Consequently, Husband has relinquished all of his interest in the marital residence. Wife has refinanced the home and has been solely responsible for the payment of all expenses related thereto. Boat (W) TBD Inherited from father Trailer (W) TBD Inherited from father Motor (W) TBD Inherited from father 1 A home appraisal was done in February 2010 and assigned the home a value of $270,000. However, this appraisal was for refinancing purposes only and thus overstated the value of the home. Wife believes that the actual value of the home is substantially less than the appraised value. If necessary, Wife reserves the right to have an appraisal performed presently. I. EXPERT WITNESSES Plaintiff has not retained any expert witness to testify at this time. Plaintiff reserves the right to present expert testimony of any real estate appraiser who may be necessary to establish the fair market value of any real property listed in Part B. Plaintiff reserves the right to retain any expert witness identified above and/or to retain additional expert witnesses as may be required prior to trial and to cross-examine any expert witness retained by Defendant for trial. III. LIST OF FACT WITNESSES Plaintiff anticipates calling only the parties as witnesses. Plaintiff reserves the right to cross-examine any witness called by Defendant at the time of trial and to offer rebuttal witnesses at the time of trial in response to Defendant's presentation. Plaintiff reserves the right to supplement this response prior to trial. IV. LIST OF EXHIBITS Plaintiff will present statements of all assets listed in Part A. above to substantiate the listed account values. 2. Plaintiff will present Kelley Blue Book Values to substantiate the values of the motor vehicles listed in Part A. above. Plaintiff will present a deed to the real property listed in Part B. above to the extent ownership of such property is disputed. 4 4. Plaintiff will present documentation concerning the transfer of the marital residence into Plaintiff's name only. 5. If necessary, Plaintiff will present copies of any real estate appraisals of the real property listed in Part B. above. 6. Plaintiff will present documentation establishing the value of any asset and/or liability listed in either of the parties' Pre-Trial Statements. 7. Plaintiff reserves the right to supplement this response prior to trial and offer additional exhibits at the time of trial. V. PARTIES' INCOMES Plaintiff's income is set forth on the attached W2. Plaintiff is unaware of the amount of Defendant's income; however, Plaintiff avers that Defendant's earnings are artificially low due to the nature of his self-employment and his unwillingness to work full-time hours. VI. PARTIES' EXPENSES Information regarding Plaintiff's expenses will be provided. VII. VALUATION OF RETIREMENT ASSETS The parties' respective 401(k) and IRA accounts are capable of valuation by reference to the statements of such assets. 5 VIII. COUNSEL FEES The parties should be responsible for their own counsel fees. An award of attorney fees to either party is not warranted in this case. IX. PERSONAL PROPERTY Aside from the items specifically listed above, the parties anticipate being able to divide their personal property equitably, without addressing such property in the Master's proceeding or further involvement from the Court. To the extent they cannot, Plaintiff reserves the right to submit valuation of specific items of personal property to the Master and/or to request a distribution of such property to Plaintiff as part of the equitable distribution in the case. X. MARITAL DEBTS DEBT AMOUNT AS OF DOS DATE DEBT INCURRED INITIAL AMOUNT OF DEBTIPURPOSE PAYMENTS SINCE DOS EVIDENCE XI. PROPOSED ECONOMIC RESOLUTION An examination of the factors listed in Section 3502 of the Divorce Code leads to the conclusion that the marital assets should be divided equally. Plaintiff shall receive the automobile currently in her possession and Defendant shall receive the automobile currently in his possession. The monies in the American Funds joint accounts will remain set aside for the children's college educations. The court should find that Husband has permanently relinquished any and all interest in the real. property owned by Wife located at 317 Blacklatch Lane, Camp 6 Hill. The joint Members First accounts have already been satisfactorily divided between the parties. To equitably divide the remaining marital assets, Wife will transfer the sum of $23,000.00 to Husband to be paid from Wife's retirement accounts pursuant to a Qualified Domestic Relations Order. Respectfully submitted, JAMES, SMITH, DIETTERICK & CONNELLY LLP wc? NQ Date: July 22, 2011 By: MAX J. SMITH, JR., QUIRE I.D. No. 32114 JESSICA E. LOWE, ESQUIRE I.D. No. 208041 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 Attorneys for Plaintiff, Tammy S. Smith 7 c=, ?' ro _ 1 _ L co ( _. N iry O D - r fl r r r LS) 0 t 1 00 LP N ( i _ co L ?U, fl c C\l FA 0-a' :a7 A ?u i { t3 14 x N -? - ? ? 4 TAMMY S. SMITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. 2010-2202 CIVIL TERM MARK D. SMITH, CIVIL ACTION - LAW Defendant IN DIVORCE CERTIFICATE OF SERVICE AND NOW, this 22nd day of July, 2011, I, MAX J. SMITH, JR., Esquire, Attorney for Plaintiff, hereby certify that I have this day sent a copy of Pre-Trial Statement of Plaintiff by depositing a certified copy of the same in the United States mail, postage prepaid, at Hershey, Pennsylvania, addressed to: Jividen & Wehnert, LLC Attn: Julie A. Wehnert, Esquire 3461 Market Street, Suite 101 Camp Hill, PA 17011-4412 Office of Divorce Master Attn: E. Robert Elicker, II, Esquire 9 North Hanover Street Carlisle, PA 17013-3014 W'4A"' -_ MAX J. SMITH, JR., quire I.D. No. 32114 JESSICA E. LOWE, Esquire I.D. No. 208041 James, Smith, Dietterick & Connelly LLP P.O. Box 650 Hershey, PA 17033 (717) 533-3280 TAMMY S. SMITH, Plaintiff VS. MARK D. SMITH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10 - 2202 CIVIL . IN DIVORCE ORDER OF COURT AND NOW, this a2 C4! day of 94UA 2012, the economic claims raised in the proceedings having been resolved in accordance with a marital settlement agreement dated February 21, 2012, the appointment of the Master is vacated and counsel can file a praecipe transmitting the record to the Court requesting a final decree in divorce. BY THE COURT, cc: ? Max J. Smith, Jr. Attorney for Plaintiff ? Julie A. Wehnert Attorney for Defendant t2?c= -? j Kev' A. Hess, P. S ?y OD .e --4c) C? A t,"Yi C C) MARITAL SETTLEMENT AGREEMENT 2-1 THIS AGREEMENT, made this day of 2012, by and between TAMMY S. SMITH (hereinafter called "Wife") and MARK D. SMITH (hereinafter called "Husband") WITNESSETH: WHEREAS, Husband and Wife were married on May 28,1994; and WHEREAS, There have been two (2) children born of this marriage, to wit: ZACHARY D. SMITH, born October 24, 1996 and TAYLOR N. SMITH, born April 21, 2004; and WHEREAS, the parties hereto desire to fix and determine by this Marital Settlement Agreement the rights and claims that have accrued to each of them in the estate and real and personal property of the other by reason of the marriage, and all economic rights of every kind and description arising from the marital relationship, including but not limited to present and future rights of inheritance, support, maintenance, alimony, payment of counsel fees and equitable distribution and to accept the provisions of this Agreement in lieu of and in full discharge, settlement and satisfaction of all such rights and claims. NOW, THEREFORE, in consideration of the premises and of the marriage, and in further consideration of the mutual promises and undertakings hereinafter set forth, each intending to be legally bound hereby, the parties agree as follows: SEPARATION. It shall be lawful for each party at all times hereafter to live separate and apart from the other party at such place as he or she may from time to time choose or deem fit. The foregoing provisions shall not be taken as an admission on the part of either party of the lawfulness or unlawfulness of the causes leading to their living apart. 2. INTERFERENCE. Each party shall be free from interference, authority and contact by the other, as fully as if he or she were single and unmarried except as may be necessary to carry out the provisions of this Agreement. WIFE'S DEBTS. Wife represents and warrants to Husband that as of the date of separation, January 10, 2010, she has not incurred, and in the future she will not contract or incur, any debts or liability for which Husband or his estate might be responsible and shall indemnify and save harmless Husband from any and all claims or demands made against him by reason of debts or obligations incurred by her. Any and all loans, and/or debts and charge accounts presently in Wife's name alone shall be Wife's sole and separate responsibility for payment thereof, and Wife agrees to indemnify and save harmless Husband from any loss he may sustain, including attorney fees, as a result of any default in payment by Wife. 4. HUSBAND'S DEBTS. Husband represents and warrants to Wife that as of the date of the separation, January 10, 2010, he has not incurred, and in the future he will not contract or incur, any debt or liability for which Wife or her estate might be responsible and shall indemnify and save harmless Wife from any and all claims or demands made against her by reason of debts or obligations incurred by him. Any and all loans, and/or debts and charge accounts, presently in Husband's name alone shall be Husband's sole and separate responsibility for payment thereof, and Husband agrees to indemnify and save harmless Wife from any loss she may sustain, including attorney fees, as a result of any default in payment by Husband. 5. EQUITABLE DISTRIBUTION. Husband and Wife acknowledge and agree that the provisions of this Agreement with respect to the distribution and division of marital and separate property are fair, equitable and satisfactory to them based on the length of their marriage and other relevant factors which have been taken into consideration by the parties. Both parties hereby accept the provisions of this Agreement with respect to division of property in lieu of and in full and final settlement and satisfaction of all claims and demands that they may now have or hereafter have against the other for the equitable distribution of their property by any court of competent jUIrisdiction pursuant to Section 3502 of The Divorce Code or any other laws. 2 Husband and Wife voluntarily and intelligently waive and relinquish any right to seek a court ordered determination and distribution of marital property, but nothing herein contained shall constitute a waiver by either party of any rights to seek the relief of any court for the purpose of enforcing the provisions of this Agreement. 6. REAL ESTATE. The parties confirm that Husband has granted, transferred, relinquished and conveyed to Wife all of his right, title and interest in the marital residence located at 31 7 Blacklatch Lane, Camp Hill, Cumberland County, Pennsylvania. It is specifically understood and agreed that Wife has refinanced the mortgage thereon and hereby assumes sole responsibility for payment of the current mortgage obligation, and shall further be solely responsible for payment of all other real estate-related expenses and household expenses, including but not limited to taxes, insurance and utilities. Wife agrees to indemnify and save harmless Husband from any loss he may sustain, including attorney fees, as a result of any default in payment by Wife. 7. DIVISION OF PERSONAL PROPERTY, ACCOUNTS AND VEHICLES. The parties have divided between them, to their mutual satisfaction, the personal effects, bank accounts, household furniture and furnishings and all other articles of personal property which have heretofore been used by them in common. Husband specifically shall be entitled to receive the items that are contained in the attached list, which is made part hereof as Exhibit "A". The personal property transfer shall be completed within thirty (30) days of this Agreement at a time mutually agreed between the parties. The parties expressly agree that Wife shall be entitled to exclusive ownership of the 2005 Honda Pilot currently in her possession, and that Husband shall relinquish any and all interest he may have in same. Wife agrees to be solely responsible for payment of any and all encumbrances, and all other expenses affecting such vehicle. Wife agrees to indemnify and save harmless Husband from any loss he may sustain, including attorney fees, as a result of any default in payment by Wife. Husband shall be entitled to exclusive ownership of the 2002 Chevrolet Truk currently in his possession, and that Wife shall relinquish any and all interest she may have in same. Husband agrees to be solely responsible for payment of any and all 3 encumbrances, and all other expenses affecting said vehicle. Husband agrees to indemnify and save harmless Wife from any loss she may sustain, including attorney fees, as a result of any default in payment by Husband. The parties further agree to execute any vehicle titles, Powers of Attorney or other documents necessary to give this Paragraph full force and effect, upon request. PENSIONS AND EMPLOYMENT BENEFITS. Husband and Wife are the owners of certain pension plans and/or retirement plans and/or employee stock or savings plans, which they have accumulated during the course of their past and/or present employment. Except as provided below, it is hereby specifically agreed that Husband and Wife each shall forever relinquish to the other his or her right, title and interest in said pension plans and/or retirement plans and/or employee stock or savings plans, as well as all other employment benefits, of the other. Specifically included herein are all benefits to which Husband is entitled through his employment with Estes Express (Spears Manufacturing Co. 401(k)) and all benefits to which Wife is entitled through her current employment with G.R. Sponaugle and past employment with 1-cam Ralhal. The parties agree to execute any and all documentation necessary to effectuate the terms herein contained. In order to effectuate the equitable distribution of assets, Wife shall assign to Husband the sum of S26,000.00, which amount shall be transferred as a tax-free rollover pursuant to a Qualified Domestic Relations Order (QDRO) through Wife's NADART 401(k) account. The QDRO shall be prepared by counsel for Wife within ten (10) days of the issuance of the Decree in Divorce, subject to approval by the NADART retirement plan administrator as soon as practicable after the issuance of the decree in divorce. The parties agree to execute any and all documentation necessary to effectuate the terms herein contained. 9. CUSTODY. Custody of the minor children, Zachary D. Smith and Taylor N. Smith, shall be governed by the Custody Order dated November 7, 2010, docketed to No. 2010- 2202, Court of Common Pleas of Cumberland County, or as such Order may be modified hereafter. 4 10. CHILD SUPPORT. Husband shall pay child support to Wife in an amount as mutually agreed between the parties. The parties acknowledge that Wife has the right to file for child support through the Domestic Relations Office of Cumberland County, or any other county having appropriate jurisdiction, to establish an Order of Support pursuant to the Pennsylvania statewide support guidelines. It. ALIMONY, ALIMONY PENDENTE LITE, SPOUSAL SUPPORT. Both parties agree to make no claim for alimony, alimony pendente lite or spousal support now or at any future time, or in connection with the pending divorce action between the parties. 12. COUNSEL FEES. Husband and Wife agree to be solely responsible for payment of his or her attorney fees in connection with this Agreement and the pending divorce action between the parties. 13. 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 the parties" mutual assets and all other rights determined by this Agreement shall be subject to Court determination the same as if the parties had never executed this Agreement. 14. FINANCIAL DISCLOSURE. The parties have disclosed to each other and they are aware of the extent of each other's income, assets, liabilities, holdings and estates. Husband and Wi Fe confirm that by executing this Agreement each forever waives any future right to set aside said Agreement, or to defend against its enforcement or any portion thereof based upon the absence of such a disclosure by the other party, or based upon any claim that it is inequitable, unconscionable or does not make a reasonable provision for one or the other of them. 15. INCOME TAX MATTERS. With respect to income tax matters regarding the parties, the parties agree that in the event any deficiency in federal, state or local income tax is proposed for a joint filing, or any assessment of any such tax is made against either of them arising out of such joint filing, the parties shall be responsible for payment of such tax and any interest, penalty or other expense arising therefrom in proportion to his or her relative fault, and shall indemnify and hold harmless the other from and against any loss or liability as a result thereof. The parties shall file individual tax returns for the tax year of 2011 and for every tax year hereafter. 16. SUBSEQUENT DIVORCE. Nothing herein contained shall be deemed to prevent either of the parties from maintaining a suit for absolute divorce against the other in any jurisdiction, nor to bar the other from demanding any such suit. 17. NO-FAULT DIVORCE. Both parties agree to execute an Affidavit of Consent and Waiver of Notice of Intention to Request Entry of a Divorce Decree to facilitate entry of a divorce decree pursuant to Section 3301(c) of the Divorce Code at the expiration of ninety (90) days from the date of service of the divorce Complaint instituted by Wife docketed to No. 2010- 2202, Court of Common Pleas of Cumberland County, Pennsylvania. 18. BREACH. If either party breaches any provisions of this Agreement, the other party shall have the right, at his or her election, to sue for damages, including attorney fees, for such breach, or seek such remedies or relief as may be available to him or her respectively. 19. 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, including Deeds and other real estate-related documents, titles, pension documents, or other documents that may be reasonably required to give full force and effect to the provisions of this Agreement. 6 20. VOLUNTARY EXECUTION. The provisions of this Agreement and their legal effect have been fully explained to the parties by Max J. Smith, Jr., Esquire, attorney for Wife, and Julie A. Wehnert, Esquire, attorney for Husband, and each party acknowledges that the Agreement is fair and equitable, that full disclosure has been made by each respective party to the other, that it is being entered into voluntarily, and that it is not the result of any duress or undue influence. Wife and Husband acknowledge that they have been furnished with all information relating to the financial affairs of the other, which has been requested by them respectively. 21. WAIVER OF CLAIMS AGAINST ESTATE. Except as herein otherwise provided, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she may now or hereafter acquire, under the present or future laws of any jurisdiction, to share in the property or the estate of the other as a result of the marital relationship, including, without limitation, dower, curtesy, statutory allowance, widow's allowance, right to take property against the Will of the other, and the right to act as administrator or executor of the other's estate, and each will, at the request of the other, execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry into effect this mutual waiver and relinquishment of all such interest, rights and claims. 22. INCORPORATION OF AGREEMENT FOR ENFORCEMENT. This Agreement shall bind the parties hereto and their respective heirs, executors, administrators, legal representatives and assigns. This Agreement shall survive a decree of divorce between the parties in any jurisdiction and any other order which may be entered in accordance with this Agreement. In the event that a Decree of Divorce is entered in the Court of Common Pleas of Cumberland County, Pennsylvania or in the event that a Decree in Divorce is entered in any other jurisdiction, the parties agree to incorporate this Agreement in the Divorce Decree for purposes of enforcement. It is the specific intent of the parties to be bound by the provisions hereof in lieu of any other claim or order of support, maintenance, alimony, equitable distribution, counsel fees, costs, maintenance of insurance, equitable relief or property settlement or with regard to any other provision hereof. In the event that any final order of court is entered 7 in any jurisdiction with respect to the parties hereto which is contrary to the provisions hereof, then the rights and responsibilities of each of the parties hereto shall be relieved or adjusted to the extent necessary to conform to this Agreement. 23. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the parties, and there are no representations, warranties, covenants or undertakings other than those expressly set forth herein. 24. JURISDICTION. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. While the parties understand that they may from time to time remove themselves from the jurisdiction, it is their understanding and their intention that this Agreement shall be valid and effective without respect to where the parties are domiciled at any time in the future, or where in the world property owned or controlled by either party is located. If, under the laws of any other jurisdiction either party would be entitled to any right, power or interest under the laws of that jurisdiction, then only to the extent necessary to effect a complete waiver, release or relinquishment of such right, power or interest, and thereby effectuate this Agreement, the laws of such jurisdiction shall apply. If one or more provisions of this Agreement shall be held invalid or unenforceable under the laws of any jurisdiction, the parties intend that such invalidity or unenforceability shall not affect the ren-iaining provisions, which shall nonetheless be valid and enforceable. If it is necessary that any invalid provision be replaced in order to interpret properly the remaining provisions of the Agreement, any such invalid provision shall be replaced by a valid provision which fulfills as closely as possible the intent and purposes of the invalid provision. It is intended by the parties that no additional rights be conferred on them other than as set forth in this Agreement by the laws of any jurisdiction whatsoever. 25. SEVERABILITY. 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 other respects, this Agreement shall continue in full force, effect and operation. 26. MODIFICATION AND WAIVER. A modification or waiver of any of the provisions o1 this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement, shall not be construed as a waiver or any subsequent default of the same or similar nature. 27. DESCRIPTIVE HEADINGS. The descriptive headings used herein are for convenience only. They shall have no effect whatsoever in determining the rights or obligations of the parties. 28. IRREVOCABILITY. It is understood and agreed to by and between the respective parties hereto that the property division-distribution effected by the herein Agreement is IRREVOCABLE and that such division-distribution shall not be affected by any future change in circumstances of the respective parties OR by other statutory or judicial alternatives which may be available to the respective parties under prior, current or future laws of the Commonwealth of Pennsylvania or any other jurisdiction. Except as provided herein, the parties herebv waive any respective rights to financial support and/or alimony and/or pension or future expectancies each may respectively have under prior, current or future laws or case decisions. IN WITNESS WHEREOF, the parties hav?hereunto set their hands and seals the day and year first above written. WITTI1ESS JTNESS TAMMY S. MARK D. SMITH 9 EXHIBIT "A" Pre-Marital Items Workbench Gun cabinet Tote of diecast toy tractors Case of matchbox cars on basement wall High school and middle school yearbooks Soft guncase Claybird thrower & claybirds Safe in basement containing football cards Wooden box containing football and baseball cards Framed Dale Earnhardt poster Climbing tree stand Screw in tree steps Hunting clothing Boxes in basement containing ducks, deer figures, etc. Remaining gun cabinet items (handgun scope, gun cleaning kits, etc.) Boxes of train sets Box marked fishing Box narked hunting Marital Personal Items Set of pictures from the last Disney trip Selection of pictures of the children from baby to the present 2 wheel hand cart Wagner power painter Remaining tools Yard tools excluding leaf rakes and snow shovels Yard chemicals 24' extension ladder Ladder tree strand Gray tote of hunting items Boxes with display cases & sporting items Stains and paints excluding house paints Tent & air mattress Hedge tri'miners Two lawn spreaders All remaining items hanging on basement workshop peg board Sharp flat screen tv Light oak kitchen table and chairs Extra refrigerator in basement Corner hutch from basement 14' Jon boat Cargo ramps Stand for flat screen TV Boat motor and fuel containers Christmas decorations 11 -# !o-aaoa MARITAL SETTLEMENT AGREEMENT THIS AGREEMENT, made this 2-1 day of Vt b g Lt0 2012, by and between TAMMY S. SMITH (hereinafter called "Wife") and MARK D. SMITH (hereinafter called "Husband") WITNESSETH: WHEREAS, Husband and Wife were married on May 28,1994; and WHEREAS, There have been two (2) children born of this marriage, to wit rn CD r ° CD ZAI?HA Y D. SMITH, born October 24, 1996 and TAYLOR N. SMITH, born April 21, 2004; and WHEREAS, the parties hereto desire to fix and determine by this Marital Settlement Agreement the rights and claims that have accrued to each of them in the estate and real and personal property of the other by reason of the marriage, and all economic rights of every kind and description arising from the marital relationship, including but not limited to present and future rights of inheritance, support, maintenance, alimony, payment of counsel fees and equitable distribution and to accept the provisions of this Agreement in lieu of and in full discharge. settlement and satisfaction of all such rights and claims. NOW, THEREFORE, in consideration of the premises and of the marriage, and in further consideration of the mutual promises and undertakings hereinafter set forth, each intending to be legally bound hereby, the parties agree as follows: SEPARATION. It shall be lawful for each party at all times hereafter to live separate and apart from the other party at such place as he or she may from time to time choose or deem fit. The foregoing provisions shall not be taken as an admission on the part of either party of the lawfulness or unlawfulness of the causes leading to their living apart. 2. INTERFERENCE. Each party shall be free from interference, authority and contact by the other, as fully as if he or she were single and unmarried except as may be necessary to carry out the provisions of this Agreement. 3. WIFE'S DEBTS. Wife represents and warrants to Husband that as of the date of separation, January 10, 2010, she has not incurred, and in the future she will not contract or incur, any debts or liability for which Husband or his estate might be responsible and shall indemnify and save harmless Husband from any and all claims or demands made against him by reason of debts or obligations incurred by her. Any and all loans, and/or debts and charge accounts presently in Wife's name alone shall be Wife's sole and separate responsibility for payment thereof, and Wife agrees to indemnify and save harmless Husband from any loss he may sustain, including attorney fees, as a result of any default in payment by Wife. .4. HUSBAND'S DEBTS. Husband represents and warrants to Wife that as of the date of the separation, January 10, 2010, he has not incurred, and in the future he will not contract or incur, any debt or liability for which Wife or her estate might be responsible and shall indemnify and save harmless Wife from any and all claims or demands made against her by reason of debts or obligations incurred by him. Any and all loans, and/or debts and charge accounts, presently in Husband's name alone shall be Husband's sole and separate responsibility for payment thereof, and Husband agrees to indemnify and save harmless Wife from any loss she may sustain, including attorney fees, as a result of any default in payment by Husband. EQUITABLE DISTRIBUTION. Husband and Wife acknowledge and agree that the provisions of this Agreement with respect to the distribution and division of marital and separate property are fair, equitable and satisfactory to them based on the length of their marriage and other relevant factors which have been taken into consideration by the parties. Both parties hereby accept the provisions of this Agreement with respect to division of property in lieu of and in full and final settlement and satisfaction of all claims and demands that they may now have or hereafter have against the other for the equitable distribution of their property by any court of competent jurisdiction pursuant to Section 3502 of The Divorce Code or any other laws. 2 Husband and Wife voluntarily and intelligently waive and relinquish any right to seek a court ordered determination and distribution of marital property, but nothing herein contained shall constitute a waiver by either party of any rights to seek the relief of any court for the purpose of enforcing the provisions of this Agreement. 6. REAL ESTATE. The parties confirm that Husband has granted, transferred, relinquished and conveyed to Wife all of his right, title and interest in the marital residence located at 317 Blacklatch Lane, Camp Hill, Cumberland County, Pennsylvania. It is specifically understood and agreed that Wife has refinanced the mortgage thereon and hereby assumes sole responsibility for payment of the current mortgage obligation, and shall further be solely responsible for payment of all other real estate-related expenses and household expenses, including but not limited to taxes, insurance and utilities. Wife agrees to indemnify and save harmless Husband from any loss he may sustain, including attorney fees, as a result of any default in payment by Wife. 7. DIVISION OF PERSONAL PROPERTY ACCOUNTS AND VEHICLES. The parties have divided between them, to their mutual satisfaction, the personal effects, bank accounts, household furniture and furnishings and all other articles of personal property which have heretofore been used by them in common. Husband specifically shall be entitled to receive the items that are contained in the attached list, which is made part hereof as Exhibit "A". The personal property transfer shall be completed within thirty (30) days of this Agreement at a time mutually agreed between the parties. The parties expressly agree that Wife shall be entitled to exclusive ownership of the 2005 Honda Pilot currently in her possession, and that Husband shall relinquish any and all interest he may have in same. Wife agrees to be solely responsible for payment of any and all encumbrances, and all other expenses affecting such vehicle. Wife agrees to indemnify and save harmless Husband from any loss he may sustain, including attorney fees, as a result of any default in payment by Wife. Husband shall be entitled to exclusive ownership of the 2002 Chevrolet Truck currently in his possession, and that Wife shall relinquish any and all interest she may have in same. Husband agrees to be solely responsible for payment of any and all 3 encumbrances, and all other expenses affecting said vehicle. Husband agrees to indemnify and save harmless Wife from any loss she may sustain, including attorney fees, as a result of any default in payment by Husband. The parties further agree to execute any vehicle titles, Powers of Attorney or other documents necessary to give this Paragraph full force and effect, upon request. 8. PENSIONS AND EMPLOYMENT BENEFITS. Husband and Wife are the owners of certain pension plans and/or retirement plans and/or employee stock or savings plans, which they have accumulated during the course of their past and/or present employment. Except as provided below, it is hereby specifically agreed that Husband and Wife each shall forever relinquish to the other his or her right, title and interest in said pension plans and/or retirement plans and/or employee stock or savings plans, as well as all other employment benefits, of the other. Specifically included herein are all benefits to which Husband is entitled through his employment with Estes Express (Spears Manufacturing Co. 401(k)) and all benefits to which Wife is entitled through her current employment with G.R. Sponaugle and past employment with Team Ralhal. The parties agree to execute any and all documentation necessary to effectuate the terms herein contained. In order to effectuate the equitable distribution of assets, Wife shall assign to Husband the sum of 526,000.00, which amount shall be transferred as a tax-free rollover pursuant to a Qualified Domestic Relations Order (QDRO) through Wife's NADART 401(k) account. The QDRO shall be prepared by counsel for Wife within ten (10) days of the issuance of the Decree in Divorce, subject to approval by the NADART retirement plan administrator as soon as practicable after the issuance of the decree in divorce. The parties agree to execute any and all documentation necessary to effectuate the terms herein contained. q. CUSTODY. Custody of the minor children, Zachary D. Smith and Taylor N. Smith, shall be governed by the Custody Order dated November 7, 2010, docketed to No. 2010- 2202, Court of Common Pleas of Cumberland County, or as such Order may be modified hereafter. 4 1. 1 10. CHILD SUPPORT. Husband shall pay child support to Wife in an amount as mutually agreed between the parties. The parties acknowledge that Wife has the right to file for child support through the Domestic Relations Office of Cumberland County, or any other county having appropriate jurisdiction, to establish an Order of Support pursuant to the Pennsylvania statewide support guidelines. 11. ALIMONY ALIMONY PENDENTE LITE SPOUSAL SUPPORT. Both parties agree to make no claim for alimony, alimony pendente lite or spousal support now or at any future time, or in connection with the pending divorce action between the parties. 12. COUNSEL FEES. Husband and Wife agree to be solely responsible for payment of his or her attorney fees in connection with this Agreement and the pending divorce action between the parties. 13. 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 the parties' mutual assets and all other rights determined by this Agreement shall be subject to Court determination the same as if the parties had never executed this Agreement. 14. FINANCIAL DISCLOSURE. The parties have disclosed to each other and they are aware of the extent of each other's income, assets, liabilities, holdings and estates. Husband and Wife confirm that by executing this Agreement each forever waives any future right to set aside said Agreement, or to defend against its enforcement or any portion thereof based upon the absence of such a disclosure by the other party, or based upon any claim that it is inequitable, unconscionable or does not make a reasonable provision for one or the other of them. 5 15. INCOME TAX MATTERS. With respect to income tax matters regarding the parties, the parties agree that in the event any deficiency in federal, state or local income tax is proposed for a joint filing, or any assessment of any such tax is made against either of them arising out of such joint filing, the parties shall be responsible for payment of such tax and any interest, penalty or other expense arising therefrom in proportion to his or her relative fault, and shall indemnify and hold harmless the other from and against any loss or liability as a result thereof. The parties shall file individual tax returns for the tax year of 2011 and for every tax year hereafter. 16. SUBSEQUENT DIVORCE. Nothing herein contained shall be deemed to prevent either of the parties from maintaining a suit for absolute divorce against the other in any jurisdiction, nor to bar the other from demanding any such suit. 17. NO-FAULT DIVORCE. Both parties agree to execute an Affidavit of Consent and Waiver of Notice of Intention to Request Entry of a Divorce Decree to facilitate entry of a divorce decree pursuant to Section 3301(c) of the Divorce Code at the expiration of ninety (90) days from the date of service of the divorce Complaint instituted by Wife docketed to No. 2010- 2202. Court of Common Pleas of Cumberland County, Pennsylvania. 18. BREACH. If either party breaches any provisions of this Agreement, the other party shall have the right, at his or her election, to sue for damages, including attorney fees, for such breach, or seek such remedies or relief as may be available to him or her respectively. 19. 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, including Deeds and other real estate-related documents, titles, pension documents, or other documents that may be reasonably required to give full force and effect to the provisions of this Agreement. 6 20. VOLUNTARY EXECUTION. The provisions of this Agreement and their legal effect have been fully explained to the parties by Max J. Smith, Jr., Esquire, attorney for Wife, and Julie A. Wehnert, Esquire, attorney for Husband, and each party acknowledges that the Agreement is fair and equitable, that full disclosure has been made by each respective party to the other, that it is being entered into voluntarily, and that it is not the result of any duress or undue influence. Wife and Husband acknowledge that they have been furnished with all information relating to the financial affairs of the other, which has been requested by them respectively. 21. WAIVER OF CLAIMS AGAINST ESTATE. Except as herein otherwise provided, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she may now or hereafter acquire, under the present or future laws of any jurisdiction, to share in the property or the estate of the other as a result of the marital relationship, including, without limitation, dower, curtesy, statutory allowance, widow's allowance, right to take property against the Will of the other, and the right to act as administrator or executor of the other's estate, and each will, at the request of the other, execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry into effect this mutual waiver and relinquishment of all such interest, rights and claims. 22. INCORPORATION OF AGREEMENT FOR ENFORCEMENT. This Agreement shall bind the parties hereto and their respective heirs, executors, administrators, legal representatives and assigns. This Agreement shall survive a decree of divorce between the parties in any jurisdiction and any other order which may be entered in accordance with this Agreement. In the event that a Decree of Divorce is entered in the Court of Common Pleas of Cumberland County, Pennsylvania or in the event that a Decree in Divorce is entered in any other jurisdiction, the parties agree to incorporate this Agreement in the Divorce Decree for purposes of enforcement. It is the specific intent of the parties to be bound by the provisions hereof in lieu of any other claim or order of support, maintenance, alimony, equitable distribution, counsel fees, costs, maintenance of insurance, equitable relief or property settlement or with regard to any other provision hereof. In the event that any final order of court is entered 7 in any jurisdiction with respect to the parties hereto which is contrary to the provisions hereof, then the rights and responsibilities of each of the parties hereto shall be relieved or adjusted to the extent necessary to conform to this Agreement. 23. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the parties, and there are no representations, warranties, covenants or undertakings other than those expressly set forth herein. 24. JURISDICTION. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. While the parties understand that they may from time to time remove themselves from the jurisdiction, it is their understanding and their intention that this Agreement shall be valid and effective without respect to where the parties are domiciled at any time in the future, or where in the world property owned or controlled by either party is located. If, under the laws of any other jurisdiction either party would be entitled to any right, power or interest under the laws of that jurisdiction, then only to the extent necessary to effect a complete waiver, release or relinquishment of such right, power or interest, and thereby effectuate this Agreement, the laws of such jurisdiction shall apply. If one or more provisions of this Agreement shall be held invalid or unenforceable under the laws of any jurisdiction, the parties intend that such invalidity or unenforceability shall not affect the remaining provisions, which shall nonetheless be valid and enforceable. If it is necessary that any invalid provision be replaced in order to interpret properly the remaining provisions of the Agreement, any such invalid provision shall be replaced by a valid provision which fulfills as closely as possible the intent and purposes of the invalid provision. It is intended by the parties that no additional rights be conferred on them other than as set forth in this Agreement by the laws of any jurisdiction whatsoever. 25. SEVERABILITY. 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 other respects, this Agreement shall continue in full force, effect and operation. 8 ,, 26. MODIFICATION AND WAIVER. A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement, shall not be construed as a waiver or any subsequent default of the same or similar nature. 2T DESCRIPTIVE HEADINGS. The descriptive headings used herein are for convenience only. They shall have no effect whatsoever in determining the rights or obligations of the parties. 28. IRREVOCABILITY. It is understood and agreed to by and between the respective parties hereto that the property division-distribution effected by the herein Agreement is IRREVOCABLE and that such division-distribution shall not be affected by any future change in circumstances of the respective parties OR by other statutory or judicial alternatives which may be available to the respective parties under prior, current or future laws of the Commonwealth of Pennsylvania or any other jurisdiction. Except as provided herein, the parties hereby waive any respective rights to financial support and/or alimony and/or pension or future expectancies each may respectively have under prior, current or future laws or case decisions. IN WITNESS WHEREOF, the parties and year first above written. i ? 7 t WIT SS - U IPTNESS TAMMY S. set their hands and seals the day d MARK D. SMITH 9 EXHIBIT "A" Pre-Marital Items Workbench Gun cabinet Tote of diecast toy tractors Case of matchbox cars on basement wall High school and middle school yearbooks Soft guncase Claybird thrower & claybirds Safe in basement containing football cards Wooden box containing football and baseball cards Framed Dale Earnhardt poster Climbing tree stand Screw in tree steps Hunting clothing Boxes in basement containing ducks, deer figures, etc. Remaining gun cabinet items (handgun scope, gun cleaning kits, etc.) Boxes of train sets Box marked fishing Box marked hunting Marital Personal ltems Set of pictures from the last Disney trip Selection of pictures of the children from baby to the present 2 wheel hand cart Wagner power painter Remaining tools Yard tools excluding leaf rakes and snow shovels Yard chemicals 24' extension ladder Ladder tree stand Gray tote of hunting items Boxes with display cases & sporting items Stains and paints excluding house paints Tent & air mattress Hedge trimmers Two lawn spreaders All remaining items hanging on basement workshop peg board Sharp flat screen tv Light oak kitchen table and chairs Extra refrigerator in basement Corner hutch from basement 14' Jon boat Cargo ramps Stand for flat screen TV Boat motor and fuel containers Christmas decorations 11 TAMMY S. SMITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 2010-2202 CIVIL TERM <-, MARK D. SMITH, CIVIL ACTION - LAW rn Ca rV ? ? Defendant IN DIVORCE ?--v C) °C G 37? - AFFIDAVIT OF CONSENT AND C-, m WAIVER OF COUNSELING` .; PQ 1. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on - March 31, 2010. 2. The marriage of Plaintiff and Defendant is irretrievably broken, and ninety days have elapsed since 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. 4. I have been advised of the availability of marriage counseling and understand that I may request that the Court require that my spouse and I participate in counseling. I further understand that the Court maintains a list of marriage counselors in the Prothonotary's Office, which list is available to me upon request. Being so advised, I do not request that the Court require that my spouse and I participate in counseling prior to a decree being handed down by the Court. 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: January 2012 P14-11j dJ ' "'L - MARK D. SMITH TAMMY S. SMITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 2010-2202 CIVIL TERM MARK D. SMITH, CIVIL ACTION -LAW i Defendant IN DIVORCE -- =rr I rn- ? r-- . u r AFFIDAVIT OF CONSENT AND t WAIVER OF COUNSELING 1. A Complaint in Divorce under Section 3301(c) of the Divorce =C' - ; Code ' v29 fil orb; --. March 31, 2010. 2. The marriage of Plaintiff and Defendant is irretrievably broken, and ninety days have elapsed since 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. 4. I have been advised of the availability of marriage counseling and understand that I may request that the Court require that my spouse and I participate in counseling. I further understand that the Court maintains a list of marriage counselors in the Prothonotary's Office, which list is available to me upon request. Being so advised, I do not request that the Court require that my spouse and I participate in counseling prior to a decree being handed down by the Court. 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: February cd_l , 2012 TAMMY S. SMITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 2010-2202 CIVIL TERM e~ f-o C = ro ;zz MARK D. SMITH, CIVIL ACTION -LAW Defendant IN DIVORCE vs a gyp.- 1 rw. ?. E + p^. . 1 z +•? ? l WAIVER OF NOTICE OF INTENTION TO REQUEST z `w? 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 further 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. 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: January 2012 MARK D. SMITH TAMMY S. SMITH, Plaintiff vs. MARK D. SMITH, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-2202 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE +n C -0:1 x r-.1 N z, i v 77 zl' r-) ?j rr~ i.-`. WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER 0301(c) OF THE DIVORCE CODE I . I consent to the entry of a Final Decree of Divorce without further 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. I understand that false statements herein are made subject to the pen*ies of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. I a Date: February 2012 TAMMY S. SMI , TAMMY S. SMITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYljV ': -:', vs.. NO. 2010-2202 CIVIL TERM rnw MARK D. SMITH, CIVIL ACTION -LAW u' D Defendant IN DIVORCE {'C3 =„ c _?3: _ PRAECIPE TO TRANSMIT RECORD To the Prothonotary: Transmit the record, together with the following information, to the Court for entry of a divorce decree: Ground for divorce: irretrievable breakdown under Section (X 3301 (c) ( 3301 (d) of the Divorce Code. (Check applicable section). 2. Date and manner of service of the complaint: By certified mail on April 7, 2010. 3. Complete either paragraph (a) or (b). (a) Date of execution of the affidavit of consent required by Section 3301 (c) of the Divorce Code: by Plaintiff February 21, 2012 , by Defendant January 31, 2012 (b)(1) Date of execution of the Plaintiff's affidavit required by Section 3301 (d) of the Divorce Code: Defendant: (2) date of service of the Plaintiff's affidavit upon the 4. Related claims pending: None m t t W Q Attorney for (X) Plainti ( ) Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TAMMY S. SMITH V. MARK D. SMITH NO, 2010-2202 CIVIL TERM DIVORCE DECREE AND NOW, IM &7 2012 , it is ordered and decreed that TAMMY S. SMITH , plaintiff, and MARK D. 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.") Marital Settlement Agreement dated 21 February 2012, is hereby incorporated into the Final Divorce Decree. By o Attes . J. l rothonotary ePtw -?o Al Cor mgrl?? qob.ce 3.7'rZ• ??©? gym( Aft `, !&h n 1) TAMMY S. SMITH, Plaintiff vs. MARK D. SMITH, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-2202 CIVIL TERM CIVIL ACTION -LAW IN DIVORCE QUALIFIED DOMESTIC RELATIONS ORDER ARTICLE I - PREAMBLE This Qualified Domestic Relations Order entered in Cumberland County, Pennsylvania, pursuant to the parties' Marital Settlement Agreement dated February 21, 2012, provides for the disposition of all or part of moneys due to TAMMY S. SMITH (the "Participant") under the qualified plan described in Article III and grants MARK D. SMITH (the "Alternate Payee") rights in such Plan on the terms set forth in this Order. ARTICLE 11 - STATUS OF ORDER It is intended by this Court for this Order to constitute a "Qualified Domestic Relations Order," as defined in section 414(p) of the Internal Revenue Code of 1986, section 206(d)(3)(B) of the Employee Retirement Income Security Act of 1974, and the Retirement Equity Act of 1984, as amended. ARTICLE III - QUALIFIED PLAN AFFECTED BY ORDER This order applies to the Team Rahal, Inc. DBA Bobby Rahal Honda NADART Salary Deferral 401(k) Plan (the "Plan"). ARTICLE IV - JURISDICTION This Court finds that it has jurisdiction over the parties and the Plan subject to this Order. This court further specifically retains jurisdiction over these parties and Plan to establish or maintain this Order as a Qualified Domestic Relations Order. ARTICLE V - LIMITATIONS ON THIS ORDER Nothing in this Order requires and this Order shall not be construed to require the Plan: (A) to provide any type of form of benefits or any option, not otherwise provided under the Plan; (B) to provide benefits to the Alternate Payee which are required to be paid to another alternate payee under an order previously determined to be a Qualified Domestic Relations Order with respect to the Plan. ARTICLE VI - PERSONAL INFORMATION The name, mailing address, Social Security number, marriage and divorce date of the Participant: Tammy S. Smith, 317 Blacklatch Lane, Camp Hill, PA 17011-8413 SSN: 199-58-1682 Date of Marriage: May 28, 1994 Date of Divorce: March 7, 2012 The name, mailing address, Social Security number, relationship to Participant, and birth date of the Alternate Payee, and any other "alternate" Alternate Payees established by this Order: Mark D. Smith, 4 DeWalt Drive, Mechanicsburg, PA 17050. SSN: 194-60-4061 Former spouse Date of Birth: April 26, 1966 ARTICLE VII - DETERMINATION OF ALTERNATE PAYEE'S INTEREST IN THE SAVINGS PLAN AND FORM OF PAYMENT From the benefits which would otherwise be payable to the Participant, the Plan shall pay to the Alternate Payee the amount of $26,000.00 of Participant's vested account balances from all of the Participant's accounts under the Plan, determined on the date the Alternate Payee's account is segregated, and therefore not subject to any gains or losses experienced by the participant's accounts, until the date the Alternate Payee's account is established. The Alternate Payee may apply to the Plan for immediate award distribution of the fully vested amount in the Participant's account. The Alternate Payee may apply for the balance of the award at the earliest date permitted under the Plan, and in any event no later than the earlier of the date the Participant's interest in the Plan becomes fully vested, or the date the Participant becomes entitled to a distribution. The Participant's respective vested account balances under the Plan shall be reduced by the amount required to be paid to the Alternate Payee determined as of the above mentioned date. The Alternate Payee may elect any form of distribution available under the terms of the plan document and applicable law as they exist at the time distribution is elected. ARTICLE VIII - EFFECT OF DEATH OF PARTICIPANT The Participant's death prior to the Alternate Payee's receipt of benefits from the Plan pursuant to this Order, shall not decrease the amount of benefits payable to the Alternate Payee pursuant to this Order. Pennsylvania, this ?7 day of Dated at Carlisle '2012. , rri 7- BY THE COUR co r? ? MAX J. SMITH, JR, SQUIRE Attorney for Tammy S. Smith V/JU E A. WEHNERT, ES?UHZB A orney for Mark D. Smith P,za,y ?g MARK D. SMITH, Defendant e s rnq.: I-eel 3 f a?Vba /'Jet