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HomeMy WebLinkAbout04-3025WAYNE F. SHADE Attorney al Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 SHERYL P. METCALFE, Plaintiff GARY E. METCALFE, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 04- Joovff' CIVIL TERM : : IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTS You have been stied in Court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you. and a decree of divorce or annulment may be entered against you by the Court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary at CUMBERLAND COUNTY COURTHOUSE. CARLISLE. PENNSYLVANIA 17013 IF YOU DO NO'I 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 BF, LOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberlm~d County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717-249-3166 Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiff WAYNE F. SHADE Attorney at Law SHERYL P. METCALFE, Plaintiff GARY E. METCALFE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04- oa0a d~ CIVIL TERM IN DIVORCE COMPLAINT 1. Plaintiff in this Action in Divorce is SHERYL P. METCALFE, an adult individual who resides at 1787 Appleway Road, St. Thomas, Franklin County, Pennsylvania 17252. 2. Defendant is GA RYE. METCALFE, an adult individual and citizen of the United States of America who resides at 7432 Comer Road, Mercersburg, Franklin County, Pennsylvania 17236. 3. Defendant has been a bona fide resident of Franklin County, Pennsylvania, for more than six months previously to the filing of this Complaint and continuing to the commencement of this &ction in Divorce. 4. Plaintiff and Del bndant were lawfully joined in marriage on September 1, 1978, in Greencastle, Pennsylva~fia. The parties have been living separate and apart since on or about April 2, 2003. 6. Plaintiff avers a~ the grounds on which this action is based that the marriage of the parties is irretrievably broken. 7, There have been no prior actions for divorce or annulment of this marriage in Pennsylvania or in any other jurisdiction. 8. Both parties to tiffs Action in Divorce are legally capable of managing their own concelTIS. 9. Defendant herein is not a member of the armed forces of the United States of America. 10. There were three children bom to the parties, namely, Mindy L. Metcalfe, bom May 15, 1981, Keenan B. Metcalfe, bom January 16, 1989, and Britlyn P. Metcalfe, born August 23, 1990. WAYNE lc, SHADE 17013 -2- 11. Plaintiffhas been advised that counseling is available mid that Plaintiffmay have the right to request that the Court require the parties to participate in counseling, WHEREFORE, Plaintiff demands judgment dissolving the marriage between the parties. Wayne'F.Shade, Esquire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiff WAYNE F. SHADE Attorne5 at [.aw 53 Wast Porn fret Street Carlisle, Pennsylvania -3- I verify that the statements made in this pleading are tree 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. Date: June 28, 2004 WAYNE F. SHADE Atlomey at Law 53 West Pomfret Street IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Sheryl P. Metcalfe, : Plaintiff VS. ~ Civil Action - Law No. 04-3025 CIVIL TERM GARY E. METCALFE, Defendant In Divorce AFFIDAVIT OF ACCEPTANCE OF SERVICE I, William F. Kaminski, Esquire, accept service of the Complaint in Divorce in the above-captioned action on behalf of the Defendant, Gary E. Metcalfe, and certify that I am authorized to do so. Date:~/~5~ Attorney for Defendant Gary E. Metcalfe PROPERTY SETTLEMENT AND SEPARATION AGREEMENT THIS AGREEMENT, made this/tLT, p___.~day of ~ ,2004, at Carlisle, Cumberland County, Pennsylvania, by and between SHERYL P. METCALFE of 1787 Appleway Road, St. Thomas, Pennsylvania 17252 (hereinafter referenced as "Wife") AND GARY E. METCALFE of 7432 Comer Road, Mcrcersburg, Pennsylvania 17236 (hereinafter referenced as "Husband"). ARTICLE I SEPARATION 1.01 Separation of Parties. Differences have arisen between the parties as a result of which they have been living separately and apart since on or about April 2, 2003. 1.02 Intention ~'o Live Apart. The parties intend to maintain separate and permanent domiciles and to live apart from each other. It is the intention and purpose of this Agreement to set forth the respective rights and duties of the parties while they continue to live apart from each other and to settle all financial and property rights between them. WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 ARTICLE II ENFORCEABILITY AND CONSIDERATION 2.01 Equitable Distribution of Marital Property. The parties have attempted to divide their marital property in accordance with the statutory rights of the parties and in a manner which conforms to the criteria set forth in §401 of the Pennsylvania Divorce Code, and taking into account the following considerations: Any prior marriages of the parties; the age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; the contributions of each party; the opportunity of each party for future acquisition of capital assets and income; the sources of income of each party, including, but not limited to, medical, retirement, insurance or other benefits; the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of marital property, including the contribution of each pm'ty as homemaker; the value of the property set apart to each party; the standard of living of the parties established during the marriage; and the economic circumstances of each party at the time the division of property is to become effective. The division of existing marital property is not intended by the parties to constitute in anyway a sale or exchange of assets, and the division is being effected without the introduction of outside funds or other property not constituting marital property. The -2- WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 division of property under this Agreement shall be in full satisfaction of all rights of equitable distribution o:l' the parties. 2.02 Incorporation and Merger. This Agreement shall be incorporated but not merged in the decree of divorce contemplated herein. This Agreement shall survive any action for divorce and decree of divorce and, unless otherwise set forth herein and shall forever be binding and conclusive on the parties; and any independent action may be brought, either at law or in equity, to enforce the terms of this Agreement by either Husband or Wife until it shall have been fully satisfied and performed. Any provisions herein concerning property rights, alimony and counsel fees shall not be modifiable. The considerations for this Agreement are the mutual benefits to be obtained by both of the parties hereto and the covenants and agreements of each of the parties to the other. The adequacy of the consideration for all agreements herein contained is stipulated, confessed and admitted by the parties, and the parties intend to be legally bound hereby. 2.03 Agreement Predicated on Divorce. It is specifically understood and agreed, by and between the parties hereto and each of the said parties does hereby warrant and represent to the other, that the execution and delivery of this Agreement is predicated upon an agreement for institution and prosecution of an action for divorce. Nothing contained in th is Agreement shall prevent or preclude either of the parties hereto from commencing, insti tuting or prosecuting any action or actions for divorce, either absolute or otherwise, upon just, legal and proper grounds; nor to prevent either party -3- WAYNE F. SHADE Attorney at Law ~3 West Pomfr~t Street Carlisle, Pennsylvania 17013 from defending any such action which has been, may or shall be instituted by the other party, nor from making any just or proper defense thereto. It is warranted, covenanted and represented by Husband and Wife, each to the other, that this Agreement is lawful and enforceable and this warranty, covenant and representation is made for the specific purpose of inducing Husband and Wife to execute the Agreement. Husband and Wife each knowingly and understandingly hereby waive any and all possible claims that this Agreement is, for any reason, illegal or for any reason whatsoever of public policy, unenforceable in whole or in part. Husband and Wife do each hereby warrant, covenant and agree that, in any event, he and she are and shall forever be estopped from asserting any illegality or unenfor, ceability as to all or any part of this Agreement. 2.04 Representation by Independent Counsel. Each of the parties is represented by independent counsel in the preparation and execution of this Agreement. Wife is represented by Wayne F. Shade, Esquire, and Husband is represented by William F. Kaminski, Esquire, of Kaminski & Hawbaker, P.C. ARTICLE III EQUITABLE DIVISION OF MARITAL PROPERTY 3.01 Equitable Division of Real Property. Concurrently with execution of this Agreement, Husband shall execute a special warranty deed to be prepared by counsel for Wife which will transfer to Wife all of his right, title and interest in and to all of the real estate owned by the parties hereto in St. Thomas Township, Franklin County, WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 Pennsylvania, with improvements thereon erected. The deed shall be held in escrow by counsel for Husband pending Wife's payment to Husband of the sum of $26,171 and Wife's removal of Husband from the obligation of the mortgage at Patriot Federal Credit Union either by release or by refinancing. Husband will receive the sum of $26,171 within ninety (90) days of the date of execution of this Agreement; thereafter, Husband will receive an additional sum of $5,000 within ten days of the issuance of a final Decree in Divorce. Wife shall have exclusive possession of said real estate pending further agreement of the pattie.,; or Order of Court. This entire Agreement is contingent upon Wife's financial ability to obtain the removal of Husband from the mortgage obligation and to borrow the sum of $31,171. In the event of the inability of Wife to obtain the removal of Husband from the mortgage obligation and to borrow the sum of $31,171, in spite of the exercise of all reasonable efforts to do so, this Agreement shall become null and void. 3.02 Equitable Division of Personal Property. (a) The furniture, household goods and other similar untitled personal property have been divided to the mutual satisfaction of the parties hereto, and each of the parties retains absolute ownership of such items in his or her possession or control at the date of this Agreement. The property shall be deemed to be in the possession or under the control of either party i~', in the case of tangible personal property, the item is physically in the possession or cor~trol of the party at the time of the signing of this Agreement and, -5- in the case of intangible' personal property, if any physical or written evidence of ownership, such as pass.book, checkbook, policy or certificate of insurance or other similar writing is in the possession or control of the party, unless provided otherwise in this Agreement. (b) Distribution of Wife's Public School Employees' Retirement System pension, shall be governed by a Supplemental Decree in Divorce in the form of a Qualified Domestic Relations Order or Domestic Relations Order, as the case may be, to be prepared by counsel for Husband and as ultimately approved by the Plan Administrator and the Court, a copy o't' which will be incorporated herein by reference as though fully set forth. Husband shall be entitled to fifty (50%) percent of the coverture portion of the pension. The numerator of the coverture fraction will be two hundred ninety-seven (297) months, and the denominator of the coverture fraction will be the number of months from September of 1978 through the date when Wife retires from teaching. Wife will be required to elect the maximum single life annuity upon retirement. Any withdrawal of Wife's contributions or interest on Wife's contributions shall be divided equally in accordance with the same coverture fraction. In the event of the death of Wife prior to her receipt of payments in an amount equal to the sum of her contributions and interest or in the event of the death of Wife in service, Husband shall be entitled to half of the same coverture portion of the balance payable to Wife's beneficiaries. 53 C~ -6- (c) The parties will execute and deliver any documents necessary to formally release their rights and .all claims to the life insurance of the other. ARTICLE IV DEBTS OF PARTIES 4.01 Loans. Wife shall be responsible for payment of the mortgage against the marital real estate and shall assume the balances on the Bank One Visa credit card and the Discover credit card. 4.02 Post-Separation Obligations. Each party represents to the other that, except as specifically set forth immediately above, there are no outstanding joint obligations of the parties and that since the separation neither party has contracted for any debts for which the other will be responsible. 4.03 Indemnification. Each party indemnifies and holds harmless the other for all obligations separately incurred and for all obligations assumed under the provisions of this Agreement. ARTICLE V CHILDREN 5.01 Custody a nd Support. Issues of child custody and support of the minor children of the parties shall be resolved outside the terms of this Agreement. WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 -7- WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carl isle, Pennsylvania 17013 5.02 lncome Tax Exemption. Husband shall be entitled to claim Keenan Metcalfe for federal income tax exemption purposes for income tax years 2004, 2005 and 2006, so long as he continues to provide child support for the children. ARTICLE VI ALIMONY 6.01 Waiver. l~,ach of the parties waives alimony generally. ARTICLE VII COUNSEL FEES 7.01 Present Fees. In the event of amicable settlement of all marital issues and the entry of a Decree in Divorce pursuant to mutual consent within one hundred eighty (180) days from the date of this Agreement, each of the parties hereby assumes his and her own counsel fees up to and including the date of the Decree in Divorce. 7.02 Counsel Fees After Divorce. The parties agree with respect to counsel fees incurred after the divorce, as follows: (a) In the event that future legal proceedings of any nature may be necessary for the interpretation or enlbrcement of this Agreement or any valid modifications hereof, the substantially prevailing party shall be entitled to reasonable counsel fees incurred. (b) Reasonable counsel fees hereunder shall be defined as reasonable hours expended at the then hourly rate of counsel for the substantially prevailing party. -8- WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 (c) Such counsel fees shall extend to any independent proceedings necessary to collect counsel fees or to enforce any other judgment or decree in connection with this Agreement. ARTICLE VIII GENERAL PROVISIONS 8.01 Income Tax Consequences. The parties have heretofore filed joint federal and state income 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 responsible for the deficiency or assessment. Except as otherwise set forth herein, any income tax incidents of any kind imposed by virtue of any transfers of assets or other payments required under this Agreement will be the responsibility of the transferee. 8.02 General Release of All Claims. Each party hereto releases the other from all claims, liabilities, debts, obligations, actions and causes of action of every kind that have been incurred relating to or arising from the marriage between the parties. However, neither party is relieved or discharged from any obligation under this Agreement or any other instrument or document executed pursuant to this Agreement. -9- WAYNE F. SHADE Attorney at Law 53 West Pom£ret Street Carlisle, Pennsylvania 17013 8.03 Subsequent Divorce. Nothing herein contained will be deemed to prevent either of the parties from maintaining a suit for absolute divorce against the other in any jurisdiction based upon any past or future conduct of the other, nor to bar the other from defending any such suit. In the event any such action is instituted or concluded, the parties will be bound by all of the terms of this Agreement. 8.04 Waiver of Estate Claim. Except as otherwise herein provided, in the event of the death of either party hereto, each party hereby waives, releases and relinquishes any and all rights that he or she may have or may hereafter acquire as the other parties' spouse under the present or future laws of any jurisdiction, as follows: (a) to elect to tatce against the will or codicils of the other party now or hereafter enforced. (b) to share in the other parties' estate in cases of intestacy. (c) to act as executor or administrator of the other parties' estate. 8.05 No Debts :md Indemnification. Each party represents and warrants to the other that he or she will not incur any debt, obligation or other liability, other than those already described in thi:~ Agreement, on which the other party is or may be liable. Each party covenants and agrees that if any claim, action or proceeding is hereafter initiated seeking to hold the other party liable for any other debt, obligation, liability, act or omission of such party or for any obligation assumed by a party hereunder, the party liable will, at his or her sole expense, defend the other against any claim or demand, -10- WAYNE F, SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 whether or not well-founded, and that he or she will indemnify and hold harmless the other party in respect to all damages resulting therefrom. The obligation created hereunder will be payable as alimony so as to constitute an exception to discharge in bankruptcy. 8.06 Full Disclosure. Each party asserts that he or she has made a full and complete disclosure of all of the real and personal property of whatsoever nature and wheresoever located belonging in anyway to each of them, of all sources and amounts of income received or receivable by each party, and of every other fact relating in anyway to the subject matter of this Agreement. These disclosures are part of the considerations made by each party for entering into this Agreement. The parties confirm that they have relied on the completeness and substantial accuracy of the financial disclosure of the other as an inducement to the execution of this Agreement. The parties acknowledge that there has been no formal discovery conducted in this case and that neither party has filed an inventory and appraisement as required by Section 3505(b) of the Pennsylvania Divorce Code. Notwithstanding the foregoing, the rights of either party to pursue a claim for equitable distribution, pursuant to the Pennsylvania Divorce Code, of any interest owned by the other parly in an asset of any nature at any time prior to the date of execution of this Agreement that was not disclosed to the other party or his or her counsel prior to the date of the within Agreement are expressly preserved. In the event that either party, at any time hereafter, should discover such an undisclosed asset, the party shall -11- WAYNE F. SHADE Attorney at Law 53 West Pomfr~t Street Carlisle, Pennsylvania 17013 have the right to petition the Court of Common Pleas of Franklin County to make equitable distribution o:~' said asset. The party to whom the asset was not disclosed shall be entitled to seek, from the non-disclosing party, payment of reasonable counsel fees, costs or expenses incun'ed in seeking equitable distribution of said asset. Notwithstanding the foregoing, this Agreement shall in all other respects remain in full force and effect. 8.07 Right to Live Separately and Free from Interference. Each party will live separately and apart from the other at any place or places that he or she may select. Neither party will mole:~t, harass, annoy, injure, threaten or interfere with the other party in any manner whatsoever. Each party may carry on and engage in any employment, profession, business or other activity as he or she may deem advisable for his or her sole use and benefit. Neither party will interfere with the use, ownership, enjoyment or disposition of any property now owned or hereafter acquired by the other. 8.08 Agreement Voluntary and Clearly Understood. Each party to this Agreement acknowledg.es and declares that he or she, respectively: (a) Is fully and completely informed as to the facts relating to the subject matter of this Agreement and as to the rights and liabilities of both parties. (b) Enters into this Agreement voluntarily after receiving the advice of independent counsel or. having had the opportunity to do so, having decided not to do so. (c) Has given careful and mature thought to the making of this Agreement. -12- WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 (d) Has carefully read each provision of this Agreement. (e) Fully and completely understands each provision of this Agreement, both as to the subject matter and legal effect. 8.09 Compliance. The parties will execute and deliver any documents necessary to formally conclude any of their obligations under the terms of this Agreement to each other. Any failure of a party to execute and return to the other, within thirty (30) days of receipt, a document that is necessary to formally conclude any obligation under the terms of this Agreement shall be regarded as a material breach of this Agreement. 8.10 Default. If either party fails in the due performance of any of his or her material obligations hereunder, the party not in default will have the right to act against the other, at his or her election, to sue for damages for breach hereof, or to rescind this Agreement or seek such other legal remedies as may be available to either party. Nothing herein shall be construed to restrict or impair either party in the exercise of this election. The failure of either patay to insist upon strict performance of any of the provisions of this Agreement shall net be construed as a waiver of any provision of this Agreement or of the right to require slrict performance of any other obligations under this Agreement. 8.11 Amendment or Modification. This Agreement may be amended or modified only by a written instrument signed by both parties. -13- WAYhDE Attol 53 West'eet Carlisle~ia 8.12 Successors and Assigns. Except as otherwise expressly provided herein, this Agreement will be binding on and inure to the benefit of the respective legatees, devisees, heirs, executors, administrators, assigns and successors in interest of the parties. 8.13 Law Governing Agreement. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania in effect at the date of execution hereof irrespective where in the world either or both of the parties hereto may reside, be domiciled or own property in the future. 8.14 Divorce. Within twenty (20) days of execution of this Agreement by both parties, Wife will institute an action in Divorce in Cumberland County, Pennsylvania, the parties agree to venue for the divorce proceedings in Cumberland County, Pennsylvania. The parties will cooperate with a mutual consent no-fault divorce; but the refusal of either of the parties to cooperate with the divorce proceedings or the inability of the parties to obtain a prompt divorce for any reason, will not invalidate this Agreement. 8.15 Reconciliation. Irrespective of the reference in the title of this Agreement to marital separation, this Agreement is intended to be a postnuptial agreement. In the event of reconciliation, attempted reconciliation or other cohabitation of the parties hereto of short or long duration after the date of this Agreement, this Agreement shall remain in full force and effect in lhe absence of a written Agreement signed by both parties hereto expressly setting forth that this Agreement has been revoked or modified. Any attempted reconciliation which does not result in a written agreement signed by both parties hereto -14- expressly setting forth that this Agreement has been revoked or modified shall not establish any additional marital rights or obligations as a result of the attempted reconciliation. IN WITNESS V~IEREOF, the parties hereto have hereunto set their hands and seals, intending to be legally bound hereby, the day and year first above written. Signed, Sealed and Delivered in the Presence off ~ ~"~g~ Sher~l p~. M~tcalf? (SEAL) Gary E. Metcalfe WAYNE F. SHADE Attorney at Law 53 West Pom£ret Street Carlisle, Pennsylvania ~7013 -15- COMMONWEALTH ()F PENNSYLVANIA ) ) SS: COUNTY OF CUMBERLAND ) On this, the _/~ day of ~,,,.~ ,2004, before me, the undersigned officer, personally appeared SHERYL P. METCALFE, known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing Agreement and acknov¥ ledged that she executed the same for the purposes therein contained. IN WITNESS ~,I-IEREOF, I hereunto set my hand and official seal. otary Putb'lic Notarial Seal Connie J. Tritt, Notary Public Carlisle, Cumberland County My Commission Expires Oct. 5, 2004 COMMONWEALTH OF PENNSYLVANIA ) ) COUNTY OF /~-~AtKJ/~/--/'q') ) SS: On this, the /tY,6_~ day of ~ ,2004, before me, the undersigned officer, personally appeared GARY E. METCALFE, known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing Agreement and acknov¥ ledged that -he executed the same for the purposes therein contained. WAYNE F'. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 IN WITNESS ¢,3IEREOF, I hereunto set my hand and official seal. Notary Public -16- COMMONWEALTH OF PENNSYLVANIA Nolarial Seal Linde E. Miller, No~a'y Public My Commission Expires Sept. 21, 2007 Member. Pennsylvania Association Of Notaries WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carhsle, Pennsylvania 17013 SHERYL P. METCALFE, Plaintiff GARY E. METCALFE, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 04-3025 CIVIL TERM : : IN DIVORCE AFFIDAVIT OF CONSENT AND WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER §3301(c) OF THE DIVORCE CODE COMMONWEALTH ()F PENNSYLVANIA ) ) COUNTY OF CUMBERLAND ) SS: A Complaint in Divorce under §3301(c) of the Divorce Code with Notice of Availability of Counseling was filed on June 29, 2004, and served on June 30, 2004. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90) days have elapsed from the date of filing and service of the Complaint. I consent to the entry of a Final Decree of Divorce without notice. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle~ Pennsylvania 17013 ! understand thal I will not be divorced until a Divorce Decree is entered by the Court and that a copy o t'the Decree will be sent to me immediately after it is filed with the Prothonotary. 6. I have been advised of the availability of marriage counseling and of my right to counseling and understand that I may request that the Court require that my spouse and I participate in counseling. 7. I understand thai the Court maintains a list of marriage counselors in the Domestic Relations Office, whicl~ list is available to me upon request. 8. Being so advised, I do not request that the Court require that my spouse and I participate in counseling prior to a Divorce Decree's being handed down by the Court. 9. 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. Date: September 30, 2(104 Shell ~. ~et~calfe ' SHERYL P. METCALFE, Plaintiff GARY E. METCALFE, Defendant · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-3025 CIVIL TERM IN DIVORCE AFFIDAVIT OF CONSENT AND WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER §3301(c) OF THE DIVORCE CODE COMMONWEALTH OF PENNSYLVANIA ) ) COUNTY OF FRANKLIN ) SS: A Complaint in Divorce under §3301(c) of the Divorce Code with Notice of Availability of Counseling was filed on June 29, 2004, and served on June 30, 2004. 2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90) days have elapsed from the dale of filing and service of the Complaint. 3. I consent to the entry ora Final Decree of Divorce without notice. o 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. o I understand that I will not be divorced until a Divorce Decree is entered by the Court and that a copy of the D,scree will be sent to me immediately after it is filed with the Prothonotary. 6. I have been advised of lhe availability of marriage counseling and of my right to counseling and understand that I may request that the Court require that my spouse and I participate in counseling. 7. I understand that the Court maintains a list of marriage counselors in the Domestic Relations Office, which list is available to me upon request. 8. Being so advised, I do not request that the Court require that my spouse and I participate in counseling prior to a Divorce Decree's being handed down by the Court. 9. 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. Date: September 30, 2004 Gary E. Metcalfe WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carhsle, Pennsylvania 17013 SHERYL P. METCAL?E, Plaintiff GARY E. METCALFE, Defendant To the Prothonotary: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 04-3025 CIVIL TERM : : IN DIVORCE PRAECIPE TO TRANSMIT RECORD Please transmit the record, together with the following information, to the Court for entry of a divorce decree: 1. Ground for divorce: Code. Irretrievable breakdown under {}3301 (c) of the Divorce 2. The date and manner of service of the Complaint were June 30, 2004, by acceptance of service. 3. Date of execration of the Affidavit of Consent and Waiver of Notice of Intention to Request Entry of a Divorce Decree under {}3301 (c) of the Divorce Code by Plaintiff was September 30, 2004, and by Defendant was September 30, 2004. 4. Related claims pending: None. September 30, 2(104 Date: Way~F. Shade Attorney for Plaintiff IN THE COURT OF COMMON PLEAS SHERYL P. METCALFE, Plaintiff of CUMbErLaND COUNTY STATE OF PENNA. NO. 04-3025 CIVIL TERM VERSUS GARY E. METCALFE, Defendant AND NOW, DECREED THAT DeCrEE iN DIVORCE ~_ IS ORDERED AND SHERYL P. METCALFE , PLAI NTI fl, AND GARY E. METCALFE , DEFENDANT, ARE DIVORCED FROM THE BONDS OF MATRIMONY. ThE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE bEEN RAISED OF RECORD 1N THIS ACTION FOr WHICH a FINAL ORDER HAS NOT YET BEEN ENTERED; Ail other claims have been resolved in a Property Settlement and Separation Agreement dated June 10, 2004, a copy of which is attached and incorporated, but not merged, herein by rcfcrcncc as though fully ~ct forth. By ThE Court: COURT OF COMMON PLEAS OF CUMBE~ COUNTY, PENNSYLVANIA SHERYL P. METCALFE, PLAINTIFF CPflL DMSION VS. · NO. 04-3025 GARY E. METCALFE, DEFENDANT ACTION IN DIVORCE DOMESTIC RELATIONS ORDER'. Stipulation and Agreement entered into by the parties in the above-captioned case and dated is hereby incorporated, but not merged, into this Order of Court. COURT OF COMMON PLEAS OF CUMBEP&AND COL~NTY, PENNSYLVANIA SHERYL P. METCALFE, · CrVIL DIVISION PLAINTIFF · v. · NO. 04-3025 DEFENDANT · GARY E. METCALFE, AC'.T~ON IN DIVORCE STIPUI~TION AND AGREEMENT day of ~ ,2004, the parties, Sheryl P. AND NOW, this !~.~ Metcalfe, Plaintiff, and, Gary E. Metcalfe Defendant, do hereby Stipulate and Agree as follows: o The Plaintiff, Sheryl P. Metcalfe, hereinafter referred to as "Member," is a member of the Commonwealth of Pennsylvania, P~blic School Employees' Retirement System, hereinafter referred to as "PSERS." PSERS, as a creature of statute, is control/ed by the Public School Employees' Retirement Code, 24 Pa. C.S. §§ 8101 et seq. ("Retirement Code"). Member's date of birth is January 29, 1958, and her Social Security number is 160-48-9136. The Defendant, Gary E. Metcalfe, hereinai~r referred to as "Alternate Payee," is the former spouse of Member. Alternate Payee's date of birth is April 23, 1957 and his Social Security number is 167-52-38~D6. Attached is a copy of the Member and Alternate's Payee's divorce decree for PSERS records. Member's last known mailing address is: Sheryl P. Metcalfe 1787 Apple Way St. Thomas, PA 17252 6. Alternate Payee's last known mailing address is: Gary E. Metcalfe 7432 Corner Road Mercersburg, PA 17236 It is the responsibility of Alternate Payee to keep a current mailing address on file with PSERS at all times. o The marital property component of Member's retirement benefit equals the Coverture Fraction multiplied by the Member's retirement benefit as of Member's effective date of retirement, calculated by using Member's final average salary as of the following date: April 2, 2003. The Coverture Fraction is a fraction with a value less than or equal to one. The numerator shall equal the amotrat of Member's credited service, as defined by PSERS, for the peric~l from September 1, 1978, to April 2, 2003. The denominator shall equal the amount of Member's service, for the period from September 1978, to Member's effective date of retirement. 3 o Fifty percent (50%) of the marital property component of Member's retirement benefit is to be allocated to Alternate Payee for the purpose of equitable distribution of this marital asset. o Member's retirement benefit is defined as all monies paid to or on behalf of Member by PSERS, including any lump sum withdrawals and/or any increases in the value of the pension that will not be attributable to contributions of Member after the date of separation. Equitable distribution of the marital property component of Member's retirement benefit, as set forth in Paragraph Seven (7) shall commence as soon as administratively feasible ~ffter Member's effective date of retirement or the approval by PSERS of a Domestic Relations Order incorporating this Stipulation and Agreement, whichever is later. 10. Member shall nominate Alternate Payee as an irrevocable beneficiary to the extent of Alternate Payee's equitable distribution interest in Member's retirement benefit for any death benefits payable by PSERS. In addition, Member shall execute an authorization, prepared by Alternate Payee, in a form acceptable to PSERS, which will authorize ]?SERS to release to Alternate Payee all information concerning Member's retirement account, including but not limited to Member's current Nomination of Beneficiaries form for death benefits. Alternate Payee shall deliver the authorization to PSERS, allowing Alternate Payee to determine if Member has properly nominated Alternate Payee as a beneficiary as per the terms of this paragraph. 11. The term and amount of Member's retirement benefits; payable to Alternate Payee under the terms of this Stipulation and Agreement after its entry as a Domestic Relations Order acceptable to PSERS are dependent upon which option(s) is (are) selected Member upon retirement. Member and Alternate Payee expressly agree that: 4 13. 14. Co Member will select the maximum Single life Annuity Option at the time Member files an Application for Retirement Allowance with PSERS. Member [may] OR [may not] elect to receive a lump sum payment pursuant to 24 Pa. C.S. § 8345(a)(4)(iii) as partof herretirement benefit. In the event the Meml~er does elect to receive an amount that is less than or eqUal to his total contn'butions and interest, the Alternate Payee would be entitled to receive his eqtfitable distribution interest in said withdrawal, as indicated in paragraph 7 above. In the event the Member does elect a lump sum withdrawal, and all or a portion of said withdrawal includes tax-free contributions, the Alternate Payee is entitled to his equitable distribution interest in said tax-free contributions as indicated in paragraph 7 above. Alternate Payee may not exercise any right, privilege or option offered by PSERS. PSERS shall issue individual ~cax forms 'to Member and Alternate Payee for the amounts paid to each. If the Alternate Payee dies prior to the receipt of .all payments potentially payable to the Alternate Payee from PSERS under this Order, then any payment payable to the Alternate Payee by PSERS shall: be paid to Alternate Payee's Estate to the extent of the Alternate Payee's equitable distribution portion of the MembeFs retirement benefit as set forth in Paragraphs 7 through 11. In no event shall the Alternate Payee or his Estate have greater benefits or rights than those which are available to the Member. The Alternate Payee or his Estate is not entitled to any benefit not otherwise provided by PSERS. The Alternate Payee or his Estate is only entitled to the specific benefits offered by PSERS as provided in this Order. All other rights, privileges and options 5 15. 16. 17. Offered by PSERS not granted to the Alternate Payee or his Estate by this order are preserved for the Member. It is specifically intended and agreed by the parties lq~ereto that this Stipulation and Agreement: a. Does not requires PSERS to provide any type of form or amount of Benefit or option not otherwise provided under the Retirement Code; And bo Does not require PSERS to provide increased benefits (determined on the basis of actuarial value) unless increased benefits are paid to Member based upon Cost OF Living Adjustments (COLA's) or on other than actuarial values. The parties intend and agree that the terms of the Stipulation and Agreement shall be approved, adopted and entered as a Domestic Relations Order. The Court of Common Pleas of Cumberland County,. Pennsylvania, shall retain jurisdiction to amend any Domestic Relations Order based on this Stipulation and Agreement, but only for the purpose of establishing it or maintaining it as a Domestic Relations Order; provided, however, that n.o such amendment shall Require PSERS to provide any type or form of benefit, or any option not Otherwise provided by PSERS, and further provided that no such amendment or Right of the Court to so amend will invalidate any existing Order. 18. Upon its entry as a Domestic Relations Order, a certified copy of this Stipulation and Agreement and any attendant documents shall be served upon PSERS immediately by the Alternate Payee. The Domestic Relations Order shall take effect immediately upon its approval and the approval of any attendant documents by PSERS and shall remain in effect until further Order of Court. 19. WHEREFORE, the parties, intending to be legally bound by the terms of this Stipulation and Agreement, do hereunto place their hands and seals. Dated: Plaintiff/Member Dated: 12 II.lo t~ · ! ! · DefendanffAltemate Payee Dated: Dated: Attorney for Member Wayne Shade, Esquire 53 W. Pomfret Street Carlisle, PA 17013-3217 Attorney for Alternate Payee William F. Kaminski, .Esquire Kaminski & Hawbaker, P.C. Law Offices 221 Lincoln Way East Chambersburg, PA 172.01-2231 IN ThE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF PENNA. SHERYL P. METCALFE, Plaintiff VERSUS GARY E. METCALFE, Defendant NO. '04-3025 CIVIL TERM DECREE IN DIVORCE AND NOW, November 1 2.OO4 03:17 PM , IT IS ORDERED AND DECREED THAT SHERYL P. METCALFE. AND GARY E. METCALFE ARE DIVORCED FROM THE BONDS OF maTrimoNy. , PLAINTIFF, , DEFENDANT, 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; Ail other claims have been resolved in a Property Settlement and Separatipn Agreement dated June lo; 2004, a copy of which is attached and incorporated, but not merged, herein by reference as though fully ~t fnr~h_ BY ThE COURT: George E. Hoffer ATTEST~~4 P' J- / P/ ROTHONOTARY Certified Copy Issued: November 2, In The Court of Common Pleas of Cumberland County, Pennsylvania Sheryl P. Allison, Formerly Metcalfe Plaintiff vs. Gary E. Metcalfe, Defendant Civil Action - Law No. 2004 - 3025 Judge Wesley Oler, In divorce a vm cn STIPULATION AND AGREEMENT FOR THE ENTRY%-, OF AN "AMENDED DOMESTIC RELATIONS ORDS'e AND NOW, this 11 day of l tot p , 20)J-/ the parties, Sheryl P. Allision, formerly Sheryl P. Metcalfe, Plaintiff and Gary E. Metcalfe, Defendant having been divorced by Decree dated November 1, 2004, of the Court of Common Pleas of Cumberland County, entered at Docket Number No. 2004-3025, and having previously entered into a stipulation and agreement regarding equitable distribution of Plaintiff's Commonwealth of Pennsylvania Public School Employees' Retirement System, herein PSERS, benefits earned during the marriage, which agreement is memorialized in a document dated December 14, 2004, containing the terms of a post nuptial agreement dated June 10, 2004, and have, for valuable consideration, receipt of which is hereby acknowledged, do hereby stipulate that the following accurately reflects the Order that amends this Court's Order of January 7, 2005 and agree as follows: -71 C.. • CD 1. The Plaintiff, Sheryl P. Allison, formerly Sheryl P. Metcalfe, (hereinafter referred to as "Member") is a member of the Commonwealth of Pennsylvania Public School Employees Retirement System (hereinafter referred to as "PSERS"). 2. PSERS, as a creature of statute, is controlled by the Public School Employees' Retirement Code, 24 Pa. C.S. Section 8101 et seq. ("Retirement Code"). 3. Member's date of birth is January 29, 1958, and her Social Security number is XXX -X-9136. 4. The Defendant, Gary E. Metcalfe, (hereinafter referred to as "Alternate Payee") is the former spouse of Member. Alternate Payee's date of birth is April 23, 1957 and Alternate Payee's Social Security number is 167-52-3806. 5. Member's current mailing address is: Sheryl P. Allison 1787 Apple Way St. Thomas, PA 17252 6. Alternate payee's current mailing address is: Gary E. Metcalfe 7432 Corner Road Mercersburg, PA 17236 It is the responsibility of Alternate Payee to keep a current mailing address on file with SERS at all times if Alternate Payee is to receive any benefit hereunder. 7. (a) The Marital Property Component of Member's retirement benefits equals the Coverture Fraction multiplied by a portion of Member's Retirement Benefit on the effective date of Member's retirement calculated by using Member's final average salary. The marital property component of Member's Retirement Benefit does not include any portion of said benefit or enhancements thereof as a result of or attributable to Member's contributions to PSERS before September 1, 1978 or after April 2, 2003, hereinafter Post Separation Contributions. (b) The coverture fraction is a fraction with a value less than or equal to one. The numerator is the total amount of months earned by Member's employment from September 1, 1978 until April 2, 2003. The denominator is the total amount of Member's service as defined by SERS on the effective date of Member's retirement, expressed as years. (c) In consideration of the amendment to the post nuptial agreement, said amendment bearing the date of June 17, 2014, Alternate Payee waives the right and conveys to Member any right to receive any equitable distribution portion of this marital asset or the Martial Property Component as defined above. The percentage of the Marital Property Component as defined above of [Member's Retirement Benefit less Post Separation Contributions] which is to be allotted to Alternate Payee as the equitable distribution portion of this marital asset, is expressed mathematically: Zero (0) % X coverature fraction X [Member's Retirement Benefit - Member's Post Separation Contributions] = $0.00 allotment to Alternate Payee (d) Post Separation Contributions are those funds which Member has deposited to her PSERS account subsequent to April 2, 2003 and any enhancements, including increase in value, attributable thereto. 8. Alternate Payee waives and conveys unto Member the right to receive any portion of Member's Retirement Benefit is defined as all monies paid to or on behalf of Member by PSERS, including any lump sum withdrawals or scheduled or ad hoc increase, but excluding the disability portion of any disability annuities paid to Member by PSERS as a result of a disability which occurs before Member's marriage to Alternate Payee or after the date of Member's and Alternate Payee's final separation and excluding any portion of the benefit payable to Member as a result of or attributed to any contributions or enhancements of those contributions made by Member after April 2, 2003. Member's retirement benefit does not include any deferred compensation benefits paid to Member by SERS. Alternate Payee shall not receive any equitable distribution portion of the marital property component of Member's retirement benefit, as set forth in Paragraph Seven (7). 9. While normally the term and amounts of Member's retirement benefits payable to Alternate Payee after PSERS approves a Domestic Relations Order incorporating this Stipulation and Agreement depends upon which option(s) Member selects at retirement, Member and Alternate Payee formerly agreed that Member was required to select the maximum Single Life Annuity Option at the time Member files an Application for Retirement Allowance with PSERS. A. Pursuant to this agreement, the parties now agree that Member may select any option she desires at the time of her retirement as Alternate Payee has no further interest in Members' PSERS benefits. B. Alternate Payee further agrees that he is not and shall not be entitled to any portion of any lump sum that Member may elect to receive pursuant to 24 Pa. C. S. 8345(a)(4)(iii). C. Further, Alternate Payee waives any interest in any portion of said lump sum distribution that is the result of a tax free contribution. 10. Alternate Payee may not exercise any right, privilege or option offered by SERS. SERS shall issue individual tax forms to Member and Alternate Payee for amounts paid to each. 11. The prior order required that in the event of the death of Alternate Payee prior to receipt of all of payments payable from PSERS under a Domestic Relations Order incorporating the former Stipulation and Agreement, the annuity payable to Alternate Payee would continue so long as Member was receiving a benefit. Alternate Payee specially waives the right to receive any benefit from Member's PSERS whether living or dead and any residual benefit shall terminate upon Alternate Payee's death. In the event that Member dies before retirement, Alternate Payee may not receive any benefit from Member's PSERS and shall immediately pay to Member's Estate any benefit received. All benefits shall be paid to Member's named beneficiary or estate. 12. In no event shall Alternate Payee have benefits or rights greater than those that are available to Member. Alternate Payee is not entitled to any benefit not otherwise providedby PSERS. Alternate Payee is only entitled to the specific benefits offered �by PSERS as provided in this Order. All other rights, privileges and options offered by PSERS not granted to Alternate Payee by this Order are preserved for Member. 13. It is specifically intended and agreed by the parties hereto that any Domestic Relations Order incorporating this Stipulation and Agreement: (a) Does not require PSERS to provide any type of benefit, or any option, not otherwise provided under the Retirement Code; (b) Does not require PSERS to provide increased benefits (determined on the basis of actuarial value) unless increased benefits are paid to Member based upon cost of living adjustments or increases based on other than actuarial values. 14. The parties intend and agree that the terms of this Order shall be approved, adopted and entered as an Amended Domestic Relations Order. 15. The Court of Common Pleas of Cumberland County, Pennsylvania, shall retain jurisdiction to amend any Domestic Relations Order incorporating this Stipulation and Agreement, but only for the purpose of establishing it or maintaining it as a Domestic Relations Order; provided, however, that such amendment shall not require PSERS to provide any type or form of benefit, or any option not otherwise provided by PSERS, and further provided that such amendment or right of the Court to so amend will invalidated the parties' existing Domestic Relations Order. 16. Upon entry of a Domestic Relations Order incorporating this Order, a certified copy of the Domestic Relations Order and any attendant documents shall be served upon PSERS immediately. Such Domestic Relations Order shall take effect immediately upon PSERS approval and PSERS approval of any attendant documents and then shall remain in effect until such time as a further Order of Court amend or vacates the Domestic Relations Order. WHEREFORE, the parties, intending to be legally bound by the terms of this Stipulation Order, do hereunto place their hands and seals. P. Allison, Member 4 Barbara B. To'nsend, Attorney for Member Gary E. Mcalfe, Alternat Payee PROPERTY AND SEPARATION AGREEMENT THIS AGREEMENT made and entered into this 11 day of , 201", by and between Gary E. Metcalfe of 7432 Corner Road, Mercersburg, PA 17236 hereinafter referred to as Husband, and Sheryl L. Allison, formerly Sheryl P. Metcalfe, of 1787 Appleway, St. Thomas, PA 17252, hereinafter referred to as Wife, WITNESSETH: WHEREAS, the parties hereto are formerly husband and wife, they having been married on or about September 1, 1978 in Greencastle, Franklin County, PA, and were divorced by decree of the Court of Common Pleas of Cumberland County, docketed to No. 04-3025 and dated November 1, 2004 WHEREAS, the parties hereto have previously entered into a post rmptial dated June 10, 2004, disposing of all marital property, and c" WHEREAS, both and each of the parties hereto have been advisea-Fif their Iegaii rights and the implications of this agreement and the legal ConsequencesTAtichrmay, and will ensue from the execution hereof, and WHEREAS, both of the parties desire to modify the post nuptial aieemt y, dated June 10, 2004, and both parties acknowledge that they have been repcesented� by attorneys of their own choosing and they have been advised of the applicable law, and WHEREAS, the parties hereto wish finally and for all time to settle and modify their respective property and other rights growing out of their marital relation, and wish to enter into this addendum to their property and separation agreement, NOW, THEREFORE, in consideration of the promises and mutual undertakings herein contained, intending to be legally bound hereby, the parties do mutually agree as follows: 1. Paragraph 3.02(b) of the parties' post nuptial agreement reads as follows: Distribution of Wife's Public School Employees' Retirement System pension, shall be governed by a Supplemental Decree in Divorce in the form of a Qualified Domestic Relations Order or Domestic Relations Order, as the case may be, to be prepared by counsel for Husband and as ultimately approved by the Plan Administrator and the Court, a copy of which will be incorporated herein by reference as though fully set forth. Husband shall be entitled to fifty (50%) percent of the coverture portion of the pension. The numerator of the coverture fraction will be two hundred ninety-seven (297) months, and the denominator of the coverture fraction will be the number of months Husband's Initials Page 1 of 5 Wife's Initials from September of 1978 through the date when Wife retires from teaching. Wife will be required to elect the maximum single life annuity upon retirement. Any withdrawal of Wife's contributions or interest on Wife's contributions shall be divided equally in accordance with the same coverture fraction. In the event of the death of Wife prior to her receipt of payments in an amount equal to the sum of her contributions and interest or in the event of the death of Wife in service, Husband shall be entitled to half of the same coverture portion of the balance payable to Wife's beneficiaries. 2. Husband agrees that in exchange for Wife paying to Husband a lump sum of Seventy Thousand ($70,000.00) dollars payable on the distribution date of this agreement and his signing of an agreement to vacate an existing order of court dated January 5, 2005 signed by the Honorable Wesley J. Oyler, Jr., simultaneous with the signing of this agreement, he hereby quitclaims, conveys to Wife and waives the right to receive from Wife any portion of Wife's Public School Employees Retirement System pension [PSERS] and any benefit whatsoever therefrom, including, but not limited to the right to collect fifty percent of the coverture portion of the pension related to Husband's marriage to Wife based upon Wife's current benefits, the ability to dictate or require Wife to elect any one of four options upon her retirement, the right to claim a percentage of Wife's contributions to the plan and the interest earned thereon, and the right to receive any benefit whatsoever upon Wife's death, whether before or after Husband's death, whether through contract or as Alternate Payee in another agreement intended to effectuate the foregoing post nuptial agreement dated June 10, 2004, which stipulation is dated December 14, 2005, and incorporated into a divorce action filed in Cumberland County, Pennsylvania by the aforesaid order of the Honorable Wesley J. Oyler, Jr., dated January 5, 2005, any increases in the value of the pension, any requirement to be named irrevocable beneficiary, any right to access information regarding the value of Wife's retirement account, including the right to receive information regarding Wife's nomination of beneficiaries, the right for his estate to receive any portion of Wife's PSERS and all such benefits as set forth in either in paragraph 3.02(b) of the postnuptial agreement dated June 10, 2004 or in said order of court dated January 5, 2005 signed by the Honorable Wesley J. Oyler, Jr. 3. Husband agrees to sign any documents requested by Wife to effectuate his conveyance to Wife and waiver of these rights whether as set forth in said agreements upon Wife's signing of this addendum. 4. The parties expressly understand and agree that the payment made to Husband under this provision is intended to be a lump sum property settlement. The lump sum payment is not, nor is it intended to be, a common periodic payment and is not, nor is it intended to be, a debt which is affected by discharge in bankruptcy. Such payment is to be tax free to Husband, and Wife covenants and agrees not to claim a deduction for said payment on her income tax return nor to assert any position that would attempt to create liability for Husband for the payment of any income tax thereon. All financial obligations undertaken by Wife herein shall be binding upon her heirs, executors, Husband's Initials Page 2 of 5 Wife's InitialsX--- administrators, successors and assigns and shall constitute a charge against Wife's estate. 5. In the event that Husband, his heirs or assigns, receives any portion of Wife's PSERS benefits, Husband or his estate shall promptly reimburse Wife within five days or receipt of such benefit. 6. If either party breaches any provision of this Agreement, the other party shall have the right, at his or her election, to sue for damages for such breach or seek such other remedies or relief as may be available to him or her, including a negotiated settlement, and the party breaching this contract shall be responsible for payment of legal fees and costs incurred by the other in enforcing any of their rights under this Agreement, including ones incurred through negotiations. 7. 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. No oral modification of this paragraph shall be valid. 8. 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. 9. This Agreement constitutes the entire understanding of the parties. It supersedes any and all prior oral or written agreements between them. There are no representations, covenants, warranties or agreements other than those expressly herein set forth. The Agreement shall survive any such decree in divorce, shall be independent thereof, shall not merge in the decree and the parties intend that all obligations contained in this Agreement shall retain their contractual nature in any enforcement proceeding, whether enforcement is sought in an action on the contract itself at law or in equity, or in any enforcement action filed to the divorce caption, including Section 3502(e) and Section 3703 of the Divorce Code, 1990, December 9, P.L. 1240, No. 206. The parties expressly consent to the provisions for enforcement of a post nuptial agreement as found in the Divorce Code, 1990, shall be applicable to this and all prior agreements between the parties. 10. The "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 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 Husband's Initials Page 3 of 5 Wife's Initials executing this Agreement. The "distribution date" is thirty (30) days after the date of execution. 11. In all other respects, not inconsistent with the foregoing or modified thereby, the parties republish the contents of their agreement dated the 10th day of June, 2004. AND FURTHER, the parties hereto covenant and agree that this Agreement shall extend to and be binding upon their heirs, devisees, executors, administrators and assigns, of both and each of the parties hereto. AND the parties hereto state that she or he, in the procurement and execution of this Agreement, has not been subjected to any fraud, concealment, overreaching, imposition, coercion, or other unfair dealing on the part of the other, or on the part of the other's counsel. IN WITNESS WHEREOF, the parties have set their hands and seals to four counterparts of this Agree ent, each of which shall constitute an original, this 1 day of 20 W79: Z7A4C21/ Oge Gary E. etcalfe Sheryl P. 'Al---)liseLLIA-1 STATE OF PENNSYLVANIA COUNTY OF FRANKLIN SS (SEAL) (SEAL) On this, the 1L day of , 201 before me, a Notary Public, the undersigned officer, personally appeared Gary E. Metcalfe, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, 1 hereunto set my hand a .d official seal. MMONWEALTil OF PENNSYLVANIA NOTARIAL SEAL Teresa D. Bard, Notary Public Chambersburg Boro, Franklin County M commission ex ices April 30, 2016 Husband's Initials OTARY PUBLIC Page 4 of 5 Wife's Initials STATE OF PENNSYLVANIA COUNTY OF FRANKLIN On this, the 11 day of undersigned officer, personally satisfactorily proven) to be the instrument, and acknowledged contained. SS 201; before me, a Notary Public, the appeared Sheryl P. Allison, known to me (or person whose name is subscribed to the within that she executed the same for the purposes therein IN WITNESS WHEREOF, I hereunto set my hand a Husband's Initials.`, official seal. NOTARY PUBLIC COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Teressa D. Bard, Notary Public Chambersburg Boro, Franklin County M commission ex, ires A i ril 30, 2016 Page 5 of 5 rTI rn Wife's Initials ,t,--- In The Court of Common Pleas of Cumberland County, Pennsylvania Sheryl P. Allison, Formerly Metcalfe Plaintiff vs. Gary E. Metcalfe, Defendant OR ER Civil Action - Law No. 2004 - 3025 Judge Wesley Oler, Jr. In divorce a vm AND NOW, this ` d y of V - 1 , 20� , the attached Stipulation dated (t1.�� [7 p01'-4 of the parties in this case is incorporated, but not merged, into this Order of Court. The Order of Court dated January 7, 2005 is hereby vacated and the contents of the attached stipulation shall control distribution of Plaintiff's Pennsylvania Public School Employees Reti s em benefits. J. CONSE TED TO: laintiff and Member Defendan and Alternate Payee W t'Es tr&A" 1441-y G /n.fe.L-CL 71* T o as A. Placey Common Pleas Judge f',J '6