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HomeMy WebLinkAbout04-4111 Heather L. Paterno, Esquire t.D. #87506 GOLDBERG KATZMAN, P.c. 320 Market Street P. O. Box 1268 Harrisburg, PA I7108~1268 (717) 234-4161; (717) 234-4161 (facsimile) Counsel {or Plaintiff ALEXB. SMILEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. D4-4/1/ G iu l-t '--r f.ILn'\. BRANDY L. SMILEY, Defendant CIVIL ACTION - LAW IN DIVORCE AND CUSTODY NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 Heather L Paterno, Esquire J.D. #87506 GOLDBERG KATZMAN, P.c. 320 Market Stteet P. O. Box 1268 Harrisburg, PA 17108-1268 (717)234-4161;(717)234-4161 (facsimile) Counsel (or Plaintiff ALEX B. SMILEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. ()4 -411t G.'uL '-r~ v. BRANDY 1. SMILEY, Defendant CIVIL ACTION - LAW IN DIVORCE AND CUSTODY WAIVER OF COUNSELING ALEX B. SMILEY, being duly sworn according to law, deposes and says: I. I have been advised of the availability of marriage counseling and understand that I may request that the Court require my spouse and I to participate in counseling. 2. I understand that the Court maintains a list of marriage counselors in the Office of the Prothonotary, which list is available to me upon request. 3. Being so advised, I do not request that the Court require that my spouse and I participate in counseling prior to a divorce decree being handed down by the Court. I verify that the statements made in this Waiver 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: f'11 r jov A4t~ Heather L. Paterno, Esquire 1.0. #87506 GOLDBERG KATZMAN, P.c. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161;(717)234-4161 (facsimile) Counsel for Plaintiff ALEX B. SMILEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 04 - 4/1( Cu.L I~ BRANDY L. SMILEY, Defendant CIVIL ACTION - LAW IN DIVORCE AND CUSTODY COMPLAINT IN DIVORCE 1. Plaintiff, ALEX B. SMILEY, is an adult individual, who currently resides at 385 Shippensburg Road, Newville, Cumberland County, Pennsylvania. 2. Defendant, BRANDY L. SMILEY, is an adult individual, who currently resides at 385 Shippensburg Road, Newville, Cumberland County, Pennsylvania. 3. Plaintiff avers that he has been a bona fide resident in the Commonwealth of Pennsylvania for a period of at least six (6) months previous to the filing ofthis Complaint. 4. The parties were married on February 27, 1999, in Perry County, Pennsylvania. 5. There have been no prior actions of divorce or annulment filed by either of the parties hereto. 6. Plaintiff has been advised of the availability of counseling and that Plaintiff has the right to request that the Court require the parties to participate in counseling. 7. The Defendant in this action is not presently a member of the United States Armed Forces. 8. Plaintiff requests the court to enter a decree of divorce. COUNT I 9. The averments of Paragraphs 1 through 8 herein are hereby incOlporated by reference thereto. 10. The marriage is irretrievably broken. COUNT II 11. The averments of Paragraphs I through 10 herein are hereby incorporated by reference thereto. 12. Plaintiff is the Father and Defendant is the Mother of Peyton Alexander Smiley and Ethan Carter Smiley, who are the subject of this custody count. 13. Plaintiff seeks shared legal and shared physical custody of: Name: Peyton Alexander Smiley Date of Birth: June 10, 1997 Name: Ethan Carter Smiley Date of Birth: December 1, 2001 Present Residence: 385 Shippensburg Road Newville, Pennsylvania 14. Peyton Alexander Smiley and Ethan Carter Smiley (hereinafter referred to as "the Children") were born during the marriage of the parties. Plaintiff and Defendant were lawfully married on February 27, 1999. 15. The Children have resided with both the Plaintiff and Defendant at 385 Shippensburg Road, Newville, Cumberland County, Pennsylvania since November 2003. 16. From birth to November 2003, the Children lived with both parents at 129 Tower Circle, Carlisle, Cumberland County, Pennsylvania. 2 17. It is anticipated that Plaintiff will no longer be residing at the family residence as of October, 2004, or sooner. 18. Plaintiff has no information of a custody proceeding concerning the Children pending in a court of this Commonwealth. 19. The best interests and permanent welfare of the Children will be served by the relief requested. 20. Plaintiff has not participated as a party, witness or in another capacity or in other litigation concerning the custody of the Children in this or another Court. WHEREFORE, Plaintiff prays Your Honorable Court to: a) Enter a Decree in Divorce, divorcing the Plaintiff from the bonds of matrimony heretofore existing between Plaintiff and Defendant; b) Grant Plaintiff and Defendant shared legal and physical custody of their children, Peyton Alexander and Ethan Carter Smiley; and c) Order such other relief as t ea her L. erno ttorney I.D. #87506 Goldberg Katzman, P.C. 320 Market Street P.O. Box 1268 Hamsburg, PAl 7 108- I 268 (71 7) 234-4161 (7 I 7) 234-6808 (facsimile) Attorney for Plaintiff Date: 3 VERIFICATION I verify that the statements contained in the foregoing COMPLAINT are true and correct to the best of my knowledge, information and belief. I understand that false statements contained herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: R//J?/ov A/JI'~_ .~ ~~ . ... ' --.. ALEX B. S LEY (J 101 \t. -. .....:} !@ ~ .c: .J:::. ~ l ~! ~ RJ ~::c ... I"'. \) \) v . . . V) () g () I \ -v p:.p t~ ~~ --..c.. ALEX B. SMILEY PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. 04-4111 CIVIL ACTION LAW BRANDY L. SMILEY DEFENDANT IN CUSTODY ORDER OF COURT AND NOW, Wednesday, An2nst 25, 2004 , upon consideration ofthe attached Complaint, it is hereby directed that parties and their respective counsel appear before Melissa P. Greevy, Esq. at 301 Market Street, Lemoyne, P A 17043 on Mond:lY, October 11, 2004 , the conciliator, at 1:00 PM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existi.ng Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearin2. FOR THE COURI'. By: /51 Melissa P. Greevy. F.sq. Custody Conciliator mhc The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 ~~?- ~i1~ ~ .~~~~ ~ ~ ~ "'tr~"V 4 'r'?J A~. ~[.b ACl-af'.$ Ac:'- ClC-fl. ViNVAlr\S~!\~]d~. ~ I 'NI'('~' r; ':1' .:'Ltln" I\.1J. iI,,"", ., '1 '1 :8 vld OS tJnV ~DOl \ti'ilONOH10tkl 3H1 dO , 381:!.:I0"G311~ " L' II OCT 1 9 2004 ~ : ALEX B. SMILEY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 04-4111 CIVIL TERM v. CIVIL ACTION - LAW BRANDY L. SMILEY, IN CUSTODY Defendant ORDER OF COURT AND NOW, this ? j~ day of October, 2004, upon consideration of the attached Custody Conciliation Summary Report, it is hereby ordered and directed as follows: 1. Lecal Custodv. The parents, Alex B. Smiley and Brandy L. Smiley, shall have shared legal custody of the minor children, Peyton Alexander Smiley, born June 10, 1999, and Ethan Carter Smiley, born December 1, 2001. Each palrent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the children's general well-being including, but not limited to, all decisions regarding their health, education and religion. Pursuant to the terms of 23 Pa. C. S. 95309, each parent shall be entitled to all records and infonnation pertaining to the children including, but not limited to, medical, dental, religious or school records, the residence address of the children and of the other parent. To the extemt one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. 2. Phvsical Custodv. Mother shall have primary physical custody subject to Father's rights of partial custody which shall be arranged as follows: A. Effective October 15, 2004, on alternating weekends from Friday evening to Sunday evening during the school year. B. At such other times as the parties agrel~. C. During the Summer, Father's custiJdial weekends will be expanded to begin on Thursday evenings. This shalll continue throughout the Summer school recess. NO. 04-4111 CIVIL TERM 3. Holidavs. The following holiday schedule shall take precedence over the regular schedule: A. Alternatina Holidavs. The parties will alternate the following holidays beginning with Father having custody for Tlhanksgiving 2004: Easter, Memorial Day, Independence Day, Labor Day and Thanksgiving. B. Christmas. Christmas shall be divided into two segments, Segment A and Segment B. Segment A shall be from December 24th until December 25th at 3:00 ~.m. Segment B shall be from December 25th at 3:00 p.m. until December 26 h at 3:00 p.m. In even-numbered years, Mother shall have Segment A and Father shall have Segment B., In odd-numbered years, Father shall have Segment A and Mother shall have Segment B. 4. The parties will keep each other informed of any changes to their telephone numbers and addresses. 5. Both parties shall have the right to reasonable telephone contact with the children during the other party's period of custody/visitation. The children may initiate a telephone call to the non-custodial parent upon their reqUl~st. Neither party shall interfere with the other party's telephone contacts with the childr,en. Each party shall make all reasonable efforts to promptly return calls or messages left by the other party regarding the children. BYT J. Dis!: ~ther L. Paterno. Esquire, PO Box 1268, Harrisburg, PA 17108.126,6 ~ne MacDonald-Fox, Esquire, Dickinson School of Law, Family Law Clinic, 45 N. Pitt Street, Carlisle, PA 17013 v"ennifer Smitrovich, CLI, Dickinson School of Law, Family Law Clinic, 45 N. Pitt Street, Carlisle, PA 17013 -..l ~ 6,D \D'd- so .:' , '\'.". II'! ... ;1 r. . '- .r " 'll",,1? -' i~..,; '" OCT 1 9 2004/ ALEX B. SMilEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4111 CIVil TERM CIVil ACTION - lAW IN CUSTODY v. BRANDY L. SMilEY, Defendant CUSTODY CONCILIATION SUMMAlitY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the children who are the subject of this litigation is as follows: NAME DATE OF BIRTH CURRI:NTL Y IN THE CUSTODY OF Peyton Alexander Smiley Ethan Carter Smiley June 10, 1999 December 1,2001 Mother Mother 2. A Custody Conciliation Conference was held on October 11, 2004 following Father's August 19, 2004 filing of a Complaint in Divorce with a County for Custody. Present for the conference were: the Father, Alex B. Smiley, and his counsel, Heather L. Paterno, Esquire; the Mother, Brandy L. Smiley, and her ,counsel, Anne MacDonald-Fox, Esquire and Jennifer Smitrovich, CLI from the Dickinson School of law Family law Clinic. 3. The parties reached an agreement in the ~o n Order as attached. /01 JLfJD t- r J j, >J Date ~a Peel Greevy, Esquire Custody Conciliator :237275 Heather L. Paterno, Esquire J.D. #87506 GOLDBERG KATZMAN, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161; (717) 234-4161 (facsimile) Counsellor Plaintiff Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ALEX B. SMILEY, v. NO. 04-4111 BRANDY L. SMILEY, Defendant CIVIL ACTION - LA W IN DIVORCE AND CUSTODY AFFIDAVIT OF CONSENT AND WAIVER OF COUNSELING 1. 19,2004. A Complaint in Divorce under ~ 3301(c) of the Divorce Code was filed on August 2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90) days have elapsed from the date of filing and service of the Complaint. 3. I consent to the entry of a final decree in 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 I understand that I may request that the Court require that my spouse and I participate in counseling. I understand that the Court maintains a list of marriage counselors, which list is available to me upon request. Being so advised, I do not request that the Court require my spouse and I to participate in counseling prior to a divorce being handed down by the Court. 5. I acknowledge that I received a copy of the Complaint in Divorce on or about August 24, 2004, via Acceptance of Service executed by me. 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: c:R /- CJ 7 ~::-) ,-- !'---) 53 _-l ~ . '. C"y I CD ~:n- tJ) ,~~ ~ .,J-' --< w w Heather L. Paterno, Esquire J.D. #87506 GOLDBERG KATZMAN, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PAl 7108- I 268 (717) 234-4161; (717) 234-4161 (facsimile) Counsel for Plaintiff ALEX B. SMILEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 04-4111 BRANDY L. SMILEY, Defendant CIVIL ACTION - LA W IN DIVORCE AND CUSTODY WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER SECTION 3301(c) OF THE DIVORCE CODE 1. I consent to the entry of a final decree of divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses 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. ~4904 relating to unsworn falsification to authorities. Date: ~.j. () 7 o c; r-.:l g _.J ""'-1 r{j \:;':.1 o -n .-\ :T:-n n'E j " C;J I CO \.l? w (J.) \ , . \,'. t . Alex B. Smiley, PLAINTIFF v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LA W IN DIVORCE Brandy L. Smiley, DEFENDANT NO. 04-4111 MARITAL SETTLEMENT AGREEMENT sf- 1e 2bc7 THIS AGREEMENT, made this 1- day of ->)M'fMM.-y ,~ by and between Alex B. Smiley, (hereinafter referred to as "Husband") and Brandy L. Smiley, (hereinafter referred to as "Wife"). WITNESSETH: WHEREAS, the parties hereto are Husband and Wife, having been married on February 27, 1999, at Church o/God, Perry County, Pennsylvania; and WHEREAS, the parties were separated on or about Mid-July, 2006; and WHEREAS, the parties are the parents of two (2) minor children, namely, Peyton Alexander Smiley, born June 10, 1999; and Ethan Carter Smiley, born December 1, 2001; and WHEREAS, certain differences, disputes and difficulties have arisen between the parties as a result of which they intend to live separate and apart for the rest of their natural lives, and are desirous of settling fully and finally their respective financial and property rights and obligations as between each other, including, without limitation by specification, the settling of all claims between them relating to the ownership and equitable distribution of their real and personal property; the settling of all matters between them relating to the past, present and future support, alimony and/or 1 . \. maintenance of Wife by Husband or of Husband by Wife; and, in general, the settling of any and all claims and possible claims by one against the other or against their respective estate. NOW, THEREFORE, in consideration of the mutual promises, covenants and undertakings hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, Husband and Wife, each intending to be legally bound and to legally bind their heirs, successors and assigns hereby covenant, promise and agree as follows: 1. SEPARATION Husband and Wife shall at all times have the right to live separate and apart from each other and to reside from time to time at such place or places as they shall respectively deem fit, free from any control, restraint or interference whatsoever by the other, subject to the further provisions of this Agreement. 2. HUSBAND'S DEBTS Husband represents and warrants to Wife that he has not and, in the future, will not contract or incur any debt or liability for which Wife or her estate might be responsible and shall indemnify and save Wife hannless from any and all claims or demands made against her by reason of debts or obligations incurred by him, except as set forth in this Agreement. 3. WIFE'S DEBTS Wife represents and warrants to husband that she has not and, in the future will not contract or incur any debt or liability for which Husband or his estate might be responsible and shall indemnify and save Husband hannless from any and all claims or 2 'b demands made against him by reason of debts or obligations incurred by her, except as relating to child support, medical treatment of their son, Brandon, or as otherwise set forth in this Agreement. 4. OUTSTANDING JOINT DEBTS Husband and Wife acknowledge and agree that they have no outstanding debts and obligations which were jointly incurred by them during their marriage with the exception of those which are set forth elsewhere in this Agreement. 5. LIABILITY NOT LISTED Each party represents and warrants to the other that he or she has not incurred any debt, obligation or other liability, other than those described in this Agreement, for which the other party is or may be liable. A liability not disclosed in this Agreement will be the sole responsibility of the party who has incurred, or may hereinafter incur it, and such party agrees to pay it as the same shall become due, and to indemnify and hold the other party and his or her property harmless from any and all such debts, obligations and liabilities. 6. DISPOSITION OF REAL PROPERTY The parties acknowledge that they are presently the owners, as tenants by the entireties, of certain real property located at 385 Shippensburg Road, Newville, Cumberland County, Pennsylvania. The total mortgage on this property is approximately $81,000. There is an outstanding mortgage payment of $2,167.53. There is also an outstanding oil bill of $719, incurred while Husband and Wife lived in the residence. Wife shall sell this property. The net proceeds from the sale of the property, after deduction of all expenses, fees and taxes in connection with the sale, 3 '. and after satisfaction of the lien of the existing first mortgage, shall be divided equally between the parties. \~hfl ~Yta[l FVltU {l cmyltk aewtllJJ;; of Au ~ -h Att;bllA1l. 7. DIVISION OF PERSONAL PROPERTY The parties agree that they have divided their separate and marital personal property to their mutual satisfaction. As of the execution date of this Agreement, any and all property not specifically addressed herein shall be owned by the party to whom the property is titled, and if untitled, the party in possession. This Agreement shall constitute a sufficient bill of sale to evidence the transfer of any and all rights in such property from each to the other. 8. AFTER-ACQUIRED PROPERTY The parties shall hereafter own and enjoy, independently of any claim or right of the other, all items of property, real, personal or mixed, tangible or intangible, which have been acquired by him or her since the parties separated in mid-July 2006, or which may be acquired in the future, with full power in him or her to dispose of the same as fully and effectively, in all respects and for all purposes, as though he or she were unmarried. 9. MOTOR VEHICLES Wife agrees that Husband shall retain possession of and receive as his sole and separate property the Honda Civic. Husband shall be solely responsible for all expenses related to said vehicle, including, but not limited to, any future insurance premiums with regard to said vehicle. Husband agrees that Wife shall retain possession of and receive as her sole and 4 '. separate property the 1998 Hyundai Tiberon. Wife shall be solely responsible for all expenses related to said vehicle, including, but not limited to, any future insurance premiums with regard to said vehicle. 10. RETIREMENT BENEFITS. INCLUDING DEFERRED COMPENSATION The parties acknowledge that as a result of Husband's prior employment, the marital estate includes limited retirement benefits. The parties hereby agree that Husband shall retain in their entirety, any and all benefits payable to him free and clear of any right, title, claim and/or interest of Wife. Wife hereby agrees to execute any documents that may be required to accomplish the purposes of this paragraph. 11. TAX RETURNS The parties acknowledge that they have heretofore filed certain joint income tax returns. The parties hereby agree that in the future, if any penalties, interest or liability shall be assessed by the United States Internal Revenue Service, Commonwealth of Pennsylvania or any other taxing authority for failure to declare income or as a result of disallowance of a claimed deduction, said penalties, interest or liability shall be paid by and solely attributable to and be the responsibility of the party failing to declare said income or claiming the deduction. In addition, the responsible party shall indemnify, defend and hold the other party harmless against all tax, penalty and interest payments, as well as attorney and accounting fees incurred arising from the failure to declare income or disallowance of the claimed deduction. The parties further agree that each will immediately forward to the other a copy of any deficiency notice or other correspondence received by either of them from the Internal Revenue Service, Commonwealth of 5 , ( . '. Pennsylvania or other taxing authority, concerning tax years for which a joint return has been filed. The responsible party shall have ten (10) days after receipt of notice to either pay the taxing authority or defend the innocent party against the taxing authority. Thereafter, the innocent party shall have the right to secure hislher own counsel and the responsible party shall pay the reasonable and necessary fees thereof. 12. COUNSEL FEES. COSTS AND EXPENSES Each party shall be solely responsible for his or her own legal fees, costs and expenses incurred in connection with their separation and/or the dissolution of the marriage and the preparation and execution of this Agreement. 13. DISCLOSURE OF ASSETS AND WAIVER OF PROCEDURAL RIGHTS Each of the parties hereto acknowledges that he or she is aware of his or her right to seek discovery, including, but not limited to, written interrogatories, motions for production of documents, the taking of oral depositions, the filing of inventories and all other means of discovery permitted under the Pennsylvania Divorce Code, as amended, or the Pennsylvania Rules of Civil Procedure. Each of the parties further acknowledges that he or she has had the opportunity to discuss with counsel the concept of marital property under Pennsylvania law, and each is aware of his or her right to have the real and/or personal property, estate and assets, earnings and income of the other assessed or evaluated by the Courts of this Commonwealth. The parties do hereby acknowledge that there has been full and fair disclosure to the other of his or respective income, assets and liabilities, whether such are held jointly or in the name of one party alone. Each party agrees that any right to further disclosure, valuation, enumeration or statement thereof in 6 r . this Agreement is hereby specifically waived. Each party warrants that he or she is not aware of any marital asset which is not identified in this Agreement. The parties hereby acknowledge and agree that the division of assets as set forth in this Agreement is fair, reasonable and equitable, and is satisfactory to them. Each of the parties hereto further covenants and agrees for himself and herself and his or her heirs, executors, administrators or assigns, that he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators or assigns with respect to this divorce, alleging that there was a denial of any rights to full disclosure, or that there was any duress, undue influence or that there was a failure to have available full, proper and independent representation by legal counsel. The parties acknowledge that a breach of this Agreement does, however, remain actionable. 14. ADVICE OF COUNSEL The provisions of this Agreement and their legal effect have been fully explained to Husband by his counsel, Heather L. Paterno, Esquire. Wife has had the opportunity to have the provisions of this Agreement and their legal effect fully explained to her by legal counsel of her choice. Each party confirms that he or she fully understands the terms, conditions and provisions of this Agreement and believes them to be fair, just, adequate and reasonable under the existing circumstances. 15. WAIVER OF ALIMONY. ALIMONY PENDENTE LITE. AND SPOUSAL SUPPORT Husband and Wife hereby expressly waive, discharge and release any and all rights and claims which he or she may now or hereafter have to alimony, alimony pendente lite, spousal support and/or maintenance or other like benefits resulting from the 7 . . parties' status as Husband and Wife. The parties further release and waive any rights they may have to seek modification of the terms of this Paragraph in a court of law or equity, it being understood that the foregoing constitutes a final determination for all time of either parties' obligation to contribute to the support and maintenance of the other. 16. WAIVER OF INHERITANCE RIGHTS Unless otherwise specifically provided in this Agreement, as of the date of execution of this Agreement, Husband and Wife each waives all rights of inheritance in the estate of the other, any right to elect to take against the Will or any Trust of the other or in which the other has an interest and each of the parties hereby waives any additional rights which said party has or may have by reason of their marriage, except the rights saved or created by the terms of this Agreement. This waiver shall be construed generally and shall include, but not be limited to, a waiver of all rights provided under the laws of Pennsylvania or any other jurisdiction. 17. WAIVER OF BENEFICIARY DESIGNATION As of the date of execution of this Agreement, unless otherwise specifically set forth herein, each party hereto specifically waives any and all beneficiary rights and any and all rights as a surviving spouse in and to any asset, benefit or like program carrying a beneficiary designation which belongs to the other party under the terms of this Agreement, including, but not limited to, pensions and retirement plans of any sort or nature, deferred compensation plans, life insurance policies, annuities, stock accounts, bank accounts, final pay checks or any other post-death distribution scheme, and each party expressly states that it is his and her intention to revoke by the terms of this Agreement any beneficiary designations naming the other which are in effect as of the 8 L- .. date of execution of this Agreement. If and in the event the other party continues to be named as beneficiary and no alternate beneficiary is otherwise designated, the beneficiary shall be deemed to be the estate of the deceased party. Notwithstanding any continuing marital status between the parties, each shall sign whatever documents are necessary to enable the other to designate new beneficiaries for retirement plans, insurance policies and similar assets in order to conform with law. 18. RELEASE OF CLAIMS a. Wife and Husband acknowledge and agree that the property dispositions provided for herein constitute an equitable distribution of their assets and liabilities pursuant to ~3502 of the Divorce Code, and Wife and Husband hereby waive any right to division of their property except as provided for in this Agreement. Furthermore, except as otherwise provided for in this Agreement, each of the parties hereby specifically waives, releases, renounces and forever abandons any claim, right, title or interest whatsoever he or she may have in property transferred to the other party pursuant to this Agreement or identified in this Agreement as belonging to the other party, and each party agrees never to assert any claim to said property or proceeds in the future. However, neither party is released or discharged from any obligation under this Agreement or any instrument or document executed pursuant to this Agreement. b. Each party hereby absolutely and unconditionally releases and 9 ~ . forever discharges the other and the estate of the other for all purposes from any and all rights and obligations which either party may have or at any time hereafter has for past, present or future support or maintenance, alimony pendent ~ite, alimony, equitable distribution, counsel fees, costs, expenses, and any other right or obligation, economic or otherwise, whether arising out of the marital relationship or otherwise, including all rights and benefits under the Pennsylvania Divorce Code of 1980, its supplements and amendments, as well as under any other law of any other jurisdiction, except and only except all rights and obligations arising under this Agreement or for the breach of any of its provisions. Neither party shall have any obligation to the other not expressly set forth herein. c. Except as set forth in or as to any breach of this Agreement, each party hereby absolutely and unconditionally releases and forever discharges the other and his or her heirs, executors, administrators, assigns, property and estate from any and all rights, claims, demands or obligations arising out of or by virtue of the marital relationship of the parties whether now existing or hereafter arising. The above release shall be effective regardless of whether such claims arise out of any former or future acts, contracts, engagements or liabilities of the other or by way of dower, curtesy, widow's or widower's 10 " , '4.' . rights, family exemption of similar allowance, or under the intestate laws or the right to take against the spouse's will, or the right to treat a lifetime conveyance by the other as a testamentary or all other rights of a surviving spouse to participate in a deceased spouse's estate, whether arising under the laws of Pennsylvania, any state, commonwealth or territory of the United States, or any other country. d. Except for the obligations of the parties contained in this Agreement and such rights as are expressly reserved herein, each party gives to the other by the execution of this Agreement an absolute and unconditional release and discharge from all causes of action, claims, rights or demands whatsoever in law or in equity, which either party ever had or now has against the other. e. Husband and Wife acknowledge that Husband has instituted an action in divorce against Wife docketed to No. 2004-4111 - Civil Term in the Court of Common Pleas of Cumberland County, Pennsylvania. Husband shall, promptly and without delay, proceed with the divorce action, and the parties shall execute all documents necessary to conclude the divorce as expeditiously as possible. 11 " . '....., . 19. AGREEMENT TO BE INCORPORATED BUT NOT MERGED IN DIVORCE DECREE This Agreement may be incorporated into a decree of divorce for purposes of enforcement only, but shall not be merged into said decree. The parties shall have the right to enforce this Agreement under the Divorce Code of 1980, as amended, and in addition, shall retain any remedies in law or in equity under this Agreement as an independent contract. Such remedies in law or equity are specifically not waived or released. 20. MODIFICATION No modification, rescission or amendment to this Agreement shall be effective unless in writing and signed by each of the parties hereto. 21. WAIVER OF BREACH The waiver by one party of any breach of this Agreement by the other party shall not be deemed a waiver of any other breach of any provision of this Agreement. 22. APPLICABLE LAW All acts contemplated by this Agreement shall be construed and enforced under the substantive laws of the Commonwealth of Pennsylvania in effect as of the date of execution of this Agreement. 23. SEVERABILITY If any provision of this Agreement is held by a court of a competent jurisdiction to be void, invalid or unenforceable, the remaining provisions hereof shall nevertheless survive and continue in full force and effect without being impaired or invalidated in any way. 12 .' . t. . 24. AGREEMENT BINDING ON PARTIES AND HEIRS This Agreement shall bind the parties hereto and their respective heirs, executors, administrators, legal representatives, assigns and successors. 25. HEADINGS NOT PART OF AGREEMENT Any headings preceding the text of the several paragraphs and subparagraphs hereof are inserted solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect. 26. ENTIRE AGREEMENT Each party acknowledges that he or she has carefully read this Agreement; that he or she has had ample opportunity to discuss its provisions with an attorney of his or her own choice, and has executed it freely and voluntarily. The parties further acknowledge and confirm that the execution of this Agreement is not the result of any duress, undue influence, collusion or improper or illegal agreement or agreements; and that this instrument expresses the entire agreement between the parties concerning the subjects it purports to cover and supersedes any and all prior agreements between the parties. This Agreement shall be interpreted fairly and simply, and not strictly for or against either of the parties. 27. MUTUAL COOPERATION Each party shall, on demand, execute and deliver to the other any deeds, bills of sale, assignments, consents to change of beneficiary designations and other documents, and shall do or cause to be done every other act or thing that may be necessary or desirable to effectuate the provisions and purposes of this Agreement. If either party unreasonably fails on demand to comply with these provisions, that party shall pay to the 13 I ," . t. . other party all attorney's fees, costs, and other expenses actually incurred as a result of such failure. 28. BREACH If either party hereto breaches any provision hereof, 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. The non-breaching party shall be entitled to recover from the breaching party all costs, expenses and legal fees actually incurred in the enforcement of the rights of the non-breaching party. 29. DATE OF EXECUTION The "date of execution" or "execution date" of this Agreement shall be defined as the date upon which the parties signed the Agreement if they did so on the same date, or if not on the same date, then the date on which the Agreement was signed by the last party to execute this Agreement. 30. EFFECTIVE DATE This Agreement shall become effective and binding upon both parties on the execution date. 31. EFFECT OF RECONCILIATION. COHABITATION OR DIVORCE This Agreement shall remain in full force and effect and shall not be abrogated even if the parties effect a reconciliation, cohabit as husband and wife or attempt to effect a reconciliation. This Agreement also shall continue in full force and effect in the event of the parties' divorce. There shall be no modification or waiver of any ofthe terms hereof unless the parties in writing execute a statement declaring this Agreement or any 14 , . lr. .- . l' < . 4 term of this Agreement to be null and void. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year of the first above written. I ,/ ell' / //. .__ VVVf7c:::;:? CflaL (}j~QJ)~~ ALEX B. SMILEY 15 -.-J ,,~ n -f'i --l ~ \.. "_) f..l I \.D :r--- C) (c") :';:'J --<; ,- ...... j Heather L. Paterno, Esquire I.D. #87506 GOLDBERG KATZMAN, p.e. 320 Market Street P. O. Box 1268 Harrisburg, P A 17108-1268 (717) 234-4161; (717) 234-4161 (Iilcsimile) COlUlS~1 for Plaintiff ALEX B. SMILEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERbAND COUNTY, PENNSYLVANIA v. NO. 04-4111 DRANDY L.SMILEY, Defendant crVIL ACTION _.- LAW IN DIVORCE AND CUSTODY AFFIDAVIT OF CONSENT 1. A Complaint in Divorce under ~ 3301(c) of the Divorce Code was filed on August 19,2004. 2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety days have elapsed from the date of filing and service of the Complaint. 3. I consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. I verify that the statements made in this Affidavit are true and correct. I understand that faIse statements herein arc made subject to the penalties of 18 Pa.C.S. Se,ctiou 4Q04, relating to unsworn falsification to authorities. Date: ~ - 9- 01 ~~ ALEX B. SMILEY , . . '" - . .,' .~..i . ,..... ,', ~, -0 co mfn -:? :J:' .. ...~~.."L.. '2:". en d::> ~('=:. :.eC' t~~ ~ j,.;:"~' ,~: ~':._~~;t! ~,; " ~ ." rf1 ".,~~"" ~ ~:o U\~~ ~~ 9i ~ :.t:t- :s: C5 .. o .... Heather L. Paterno, Esquire I.D. #87506 GOLDBERG KATZMAN, P.C. 320 Madcet Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161; (717) 234-4161 (facsimile) Counsel for Plaintiff ALEX B. SMILEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 04-4111 BRANDYL. SMILEY, Defendant CIVIL ACTION - LAW IN DIVORCE AND CUSTODY WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER SECTION 3301(c) OF THE DIVORCE CODE 1. I consent to the entry of a final decree of divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses 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. ~4904 relating to unsworn falsification to authorities. Date: ;., - 9-11 , ~~ ~ ~ ALEX B. SMILEY 2 ~ -o\.J'J .-nrn 1..:;01 ~~.", J':-..~.' ;zc <:Q ~'" r::: t. "- ....,......... ,,-". ~4. /-Ci '5>c Z '~ ~ ~ ~ ~ \\ ~ Qa C5 ~ .. ~ o ~ ..- Heather L. Paterno, Esquire ID #25454 GOLDBERG KATZMAN, PC. 320 Market Street P. O. Box 1268 Harrisburg, PA 17\08-1268 (717) 234-4161; (717) 234-4 J 61 (facsimile) Counsel jiJr Plain/l!! ALEX B. SMILEY, Plaintiff IN THE COURT OF COMMON PLU S OF CUMBERLAND COUNTY, PENNSlf VANIA I v. NO. 04-4111 Civil Term BRANDY L. SMILEY, Defendant CIVIL ACTION - LAW IN DIVORCE AND CUSTODY ACCEPT ANCE OF SERVICE I, BRANDY L. SMILEY, Defendant, acknowledge that I received a copy of:t e Complaint in Divorce, which was filed with the Court on August 19, 2004, in the BRANDY L. SMILE , above-referenced matter by personally accepting service thereof. Date: '51:J-q6CJ~ ,2004 ~ -----,..._-'--~- (~ ~.::: r--:l {::::l = --' \1.. -~-, ~ o -n -~ ~-n rilE ~Q ?;; -";.., _._z'" c:~~ :-;:; :i.:! .-<;. ......~) r>0 co) Heather L. Paterno, Esquire J.D. #87506 GOLDBERG KATZMAN, P.c. 320 Market Street P. O. Box 1268 Harrisburg, P A 17 J08- I 268 (717) 234-4161; (717) 234-4161 (fucsimile) Counselor Plainti . BRANDY L. SMILEY, Defendant CIVIL ACTION - LAW IN DIVORCE AND CUSTODY Plaintiff IN THE COURT OF COMMON PLEA~ F CUMBERLAND COUNTY, PENNSYC ANIA ALEXB. SMILEY, v. NO. 04-4111 PRAECIPE TO TRANSMIT RECORD TO THE PROTHONOTARY: Transmit the record, together with the following information, to the Court for',e try of a divorce decree: 1. Ground for divorce: irretrievable breakdown under g3301(c) of the D~v rce Code. I 2. Date and manner of service of the Complaint: Au ust 24 2004 via A Service. executed bv Defendant. 3. (a) Date of execution of the affidavit of consent required by g 3301\( ) of the Divorce Code: by Plaintiff on February 9. 2007 ; br efendant on February 1.2007 (b )(1 ) , Date of execution of the Affidavit required by S 3301 (d) I Code: (2) , Date of filing and service of Plaintiffs Affidavit upon the , 4. Related claims pending: 5. (a) Date and manner of service of the notice of intention to file prae~i e to transmit record, a copy of which is attached: (b) Date Plaintiffs Waiver of Notice in S 3301(c) Divorce was filed I prothonotary: February 15.2007 . Date Defendant's Waiver of Notice in~33)>1(c) DiVorcy\\Tas ~ with the prothonotary: February 8. 2007 /'j/' "'.....li ~/ I f ! ' /' . ! /, i.{ " ,; " ....~tl l [, t -, ,J ti ("'/"/ " , -; Q ~;, Q. r::> c? <;3 ~~, 'S:0 ~ ~ ~--\ ..--\;,\~ t. \_,-; 1!~t _ "-1 : ~~Tf\ :.....-- "0 :.L. \ - ~..o .- "" c.iJ ~'l; ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili ili if. ili if. if. if.ili if.if. if.iliif.if. if. if. if. if. if.iliif. iliif.iliif. if. if.iliif. iliif. if. IN THE COURT OF COMMON PLEAS ALEX B. SMILEY. BRANDY L. SMILEY. AND NOW, DECREED THAT AND OFCUMBERLANDCOUNTY STATE OF VERSUS PENNA. No. 04-4111 Civil Plaintiff Defendant IN DIVORCE DECREE IN DIVORCE 1Yl~~ o::r,,). .~, /~ · ~ 1 , IT IS ORDERED AND ALEX B. SMILEY , PLAINTIFF, BRANDY L. SMILEY , DEFEN DANT, ARE DIVORCED FROM THE BONDS OF MATRIMONY. THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE BEEN RAISED OF RECORD IN TH IS ACTION FOR WH ICH A FI NAL ORDER HAS NOT YET BEEN ENTERED; AND IT IS FURTHER ORDERED AND DECREED, that the terms, prOV1Slons and condition of a certain Marital Settlement Agreement between the parties dated Febrtl~ry 1, 2007, are hereby incorporated in thO reference as fully as though the same were set forth her at length. aid Agreement shall not merg wlt, ut s a ATTEST~~ PROTHONOTARY ili iliif.if.iliili if.if.iliif.if. if. if.iliili iliif.iliiliiliili ili ili iliili if.if.if.if.if.ili J. '7 ;;:/ f ~ ~ (0' ~ . f: ~ ~ fJ:t' ~~ ~..f"J LO' jT. C , . '. .' , ..'" " ,;4., ...,.. ",,~' . .. .