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HomeMy WebLinkAbout88-0928C-- --? VASILIKI M. BAKER, Plaintiff vs. RANDALL K. BAKER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 928 CV 1988 CIVIL ACTION - LAW IN DIVORCE RULE TO SHOW CAUSE `N?a/l c ,11, o201.9, AND NOWly upon consideration of Plaintiff's Motion to Enforce Property Settlement and Separation Agreement, A RULE IS HEREBY ISSUED upon Defendant to show cause, if any, why Plaintiff's Petition should not be granted. This Rule is returnable whit days prior to the hearing which is scheduled in this matter on , the IL day of , 2012, at .'36 o'clock -77 in. in Courtroom #--/ of the Cumberland County Courthouse. BY THE COURT: 101, J. Distribution List /Lori K. Serratelli, Serratelli, Schiffman & Brown, PC, 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 ?,,^Randall K. Baker, 37 Ashton Drive, Carlisle, PA 17015 _ Copies ma, lee, C= -0 j i1Q'r ?f:i ?? •f sir,. Max J. Smith, Jr., Esquire r '' ?? u Jessica eE ILowe, Esquire ""IS YL VA NIA?T Y Attorney I.D. #208041 James, Smith, Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Telephone: (717) 533-3280 Fax: (717) 533-2795 e-mail: j el j sdc.com VASILIKI M. BAKER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. : NO. 928 CV 1988 RANDALL K. BAKER, CIVIL ACTION - LAW Defendant IN DIVORCE NOTICE TO PLEAD TO: Vasiliki M. Baker, Plaintiff c/o Lori K. Serratelli, Esquire and Jeni S. Madden, Esquire, Attorneys for Plaintiff YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. JAMES, SMITH, DIETTERICK & CONNELLY, LLP Date: April 24, 2012 By: M J. I r, JR., Esquire I. No. 4 ESSICA E. LOWE, Esquire I.D. No. 208041 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 Attorneys for Defendant, Randall K. Baker i ((T ^ C' P ?c? RL ;; lO COUNP( PENNSYLVANIA Max J. Smith, Jr., Esquire Attorney I.D. #32114 Jessica E. Lowe, Esquire Attorney I.D. #208041 James, Smith, Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Telephone: (717) 533-3280 Fax: (717) 533-2795 e-mail: jelgisdc.com VASILIKI M. BAKER, Plaintiff vs. RANDALL K. BAKER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 928 CV 1988 CIVIL ACTION - LAW IN DIVORCE ANSWER WITH NEW MATTER TO MOTION TO ENFORCE PROPERTY SETTLEMENT AND SEPARATION AGREEMENT INCORPORATED IN DIVORCE DECREE DATED JULY 27,1988 AND NOW, comes the Defendant, Randall K. Baker, by and through his attorneys, James, Smith, Dietterick & Connelly, LLP, to answer the Motion to Enforce Property Settlement and Separation Agreement Incorporated in Divorce Decree Dated July 27, 1988filed by Plaintiff, and to oppose the relief requested therein. In support thereof, Defendant avers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. The document attached as Exhibit "A" speaks for itself. 5. The document attached as Exhibit "A" speaks for itself. 6. Denied insofar as the intent of the parties is expressed in the document attached as Exhibit "A". 7. Admitted in part and denied in part. Defendant admits that Athanasia attended Pennsylvania State University. Defendant denies the costs of her education, as he lacks the knowledge and information necessary to respond. Strict proof thereof is hereby demanded. By way of further response, the documents attached as Exhibit "B" do not specifically identify the borrower or the purpose of the loan, or any other relevant identifying information. Furthermore Plaintiff's claim is barred by the Statue of Limitations, 42 Pa.C.S. §5525(a)(8). 8. Admitted in part and denied in part. Defendant admits that Alexandra attended Shippensburg University. Defendant denies the costs of her education, as he lacks the knowledge and information necessary to respond. Strict proof thereof is hereby demanded. By way of further response, the document attached as Exhibit "C" is insufficient to substantiate Plaintiff's claims. Furthermore Plaintiff s claim is barred by the Statue of Limitations, 42 Pa.C.S. §5525(a)(8). 9. Admitted in part and denied in part. Defendant admits that William attended Blue Ridge Community College. Defendant denies the costs of his education, as he lacks the knowledge and information necessary to respond. Strict proof thereof is hereby demanded. By way of further response, the document attached as Exhibit "D" is insufficient to substantiate Plaintiffs claims. Furthermore Plaintiff s claim is barred by the Statue of Limitations, 42 Pa.C.S. §5525(a)(8). 10. Denied. Defendant lacks the knowledge and information necessary to respond. Strict proof thereof is hereby demanded. 11. Denied. Defendant specifically denies that requests were made. 12. Denied. The Agreement is a document that speaks for itself. By way of further response, Plaintiff's claim is time-barred by 42 Pa.C.S. §5525(a)(8). 13. Denied. Paragraph thirteen (13) is denied for the reasons set forth in paragraphs seven (7) through nine (9) above. 14. Denied. The Agreement is a document that speaks for itself. By way of further response, Plaintiff's claim is time-barred by 42 Pa.C.S. §5525(a)(8). NEW MATTER 15. The responses to paragraphs one (1) through fourteen (14) are incorporated herein as though set forth in full. 16. According to her Motion, Plaintiff is seeking reimbursement for educational costs that were incurred between 1995 and 2008. 17. The relief sought in Plaintiff's Motion is time-barred by the four-year statute of limitations governing contract disputes, set forth at 42 Pa.C.S. §5525(a)(8). WHEREFORE, Defendant Randall K. Baker hereby requests that this Honorable Court DISMISS Plaintiff's Motion to Enforce Property Settlement and Separation Agreement Incorporated in Divorce Decree Dated July 27, 1988 WITH PREJUDICE. Respectfully submitted, JAMES, SMITH, DIETTERICK & CONNELLY, LLP Date: April 24, 2012 By: NAf J. IT , JR., Esquire I.D No. 3M4 JESSICA E. LOWE, Esquire I.D. No. 208041 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 Attorneys for Defendant, Randall K. Baker I verify that the statements made in this Answer 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. x4a VASILIKI M. BAKER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 928 CV 1988 RANDALL K. BAKER, CIVIL ACTION - LAW Defendant IN DIVORCE CERTIFICATE OF SERVICE I, JESSICA E. LOWE, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Answer to Motion to Enforce Property Settlement and Separation Agreement Incorporated in Divorce Decree Dated July 27, 1988 upon the following below-named individual(s) by depositing the same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this 24th day of April, 2012: Lori K. Serratelli, Esquire Jeni S. Madden, Esquire Serratelli, Schiffinan & Brown, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 JAMES, SMITH, DIETTERICK & CONNELLY, LLP By: J. SMIT , JR., Esquire VSI.No. 1 4 SICA A E. LOWE, Esquire I.D. No. 208041 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 Attorneys for Defendant, Randall K. Baker I, ON' L.,, 2012 MAY I I PM 1: 2? Lori K. Serratelli, Esquire Jeni S. Madden, Esquire PA ID Nos. 27426 & 209536 SERRATELLI, SCHIFFMAN, & BROWN, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 (717) 540-9170 Telephone (717) 540-5481 Facsimile Email: lserratelliAssbc-law. com Email: jmadden(a?ssbc-law.com '` CUMBERLAND CCIUN # `r y PENNSYLVANIA VASILIKI M. BAKER, Plaintiff vs. RANDALL K. BAKER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 928 CV 1988 CIVIL ACTION - LAW IN DIVORCE ANSWER TO NEW MATTER AND NOW, comes Plaintiff, Vasiliki M. Baker, by and through her counsel, Serratelli, Schiff nan, & Brown, P. C., and files her Answer to New Matter, and in support thereof avers as follows: 15. Incorporation paragraph. No response required. 16. It is admitted that Plaintiff's Motion states that Plaintiff is seeking reimbursement for costs incurred from 1995 through 2008. By way of further reply, Plaintiff s Motion contains a typographical error in that it states that William Baker attended Full Sail University from 2007 through 2008. In actuality, William attended Full Sail University from September, 2008 through June, 2010, as evidenced by the student loans identified in Exhibit "D" attached to the Motion. Therefore, Plaintiff is seeking reimbursement for education expenses from 1995 through 2010, including a total of $134,231.00 for William Baker rather than $108,131.00 as stated in Paragraph 9 of Plaintiff s Motion. 17. The averments in Paragraph 17 are conclusions of law to which no response is required. By way of further reply, some of the education expenses, specifically those costs incurred by William Baker for the years 2008 through 2010, i.e. $134,231.00, were incurred within the four-year statute of limitation set forth in 42 Pa.C.S. §5525(a)(8). See Exhibit "D" attached to Plaintiff s Motion. As to the remaining education expenses set forth in the Motion, Pennsylvania courts have held that marital settlement agreements create a continuing contractual obligation when the duties of the parties are ongoing. See e.g. Jenkins v. Jenkins, 2004 WL 3406186 (Pa.Com.Pl. Oct. 25, 2004). In matters of continuing contractual obligations, the four-year statute of limitations set forth in 42 Pa.C.S. §5525(a)(8) is inapplicable. See Crispo v. Crispo, 909 A.2d 308, 315 (Pa.Super., 2006). See also Jenkins, 2004 WL 3406186 ("[I]n the case of continuing contracts, such as postnuptial agreements, where the duties of the parties are ongoing, the statute of limitations generally does not run.") When a contractual obligation is continuing, payments which are more than four years old may be recoverable. For example, in Miller v. Miller, 983 A.2d 736 (Pa.Super., 2009), a wife sought to recover mortgage payments from her husband which were due pursuant to a marital settlement agreement. The husband argued that unpaid mortgage payments which arose prior to four years from the date of her Petition for Enforcement should be barred by the statue of limitations. Id. at 742. The Superior Court held in Miller that the obligation was continuing because the husband continued to owe payments on the marital residence and "Wife was still paying the taxes and insurance on the marital residence, payments that were Husband's continuing responsibility under sub-section 3.1 of the Agreement." Id. at 743 Miller is analogous to the present matter because, pursuant to the Agreement, Defendant has a continuing responsibility to pay for the loans used to finance the education of his children. Moreover, like the mortgage payments in Miller, the loans used to finance the education Alexandra and William are unpaid and therefore payments on said loans continue to be due and owing. For the reasons discussed herein, the four (4) year statute of limitations in 42 Pa.C.S. §5525(a)(8) is inapplicable and Plaintiff may recover for the claims set forth in her Motion. Respectfully submitted, SERRATELLI, SCHIFFMAN, & BROWN, P.C. - le- ?h 11 1 za, I- , ",\ - Date: May 10, 2012 Lo ' . Serratelli, Esquire Je ' S. Madden, Esquire Supreme Court I.D. Nos. 27426 & 209536 Serratelli, Schiffman, & Brown, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorney for Plaintiff CERTIFICATE OF SERVICE I, Jeni S. Madden, Esquire, do hereby certify that on this 10th day of May, 2012, I served a copy of the foregoing document by First Class Mail, postage pre-paid, to the following person(s): Jessica E. Lowe, Esquire James, Smith, Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Counsel for Defendant Randall K. Baker J i S. Madden, Esquire VERIFICATION I, Vasiliki M. Baker, being subject to the penalties of 18 Pa. C.S.§4904 relating to unsworn falsification to authorities, hereby state the facts set forth in the foregoing Answer to New Matter, are true and correct to the best of my knowledge, information and belief. Date: rr) 0 i I Z (2 Max J. Smith, Jr., Esquire Attorney I.D. #32114 = , c-n Jessica E. Lowe, Esquire var , c) Attorney I.D. #208041 `=. James, Smith, Dietterick & Connelly, LLP v c-} P.O. Box 650 .. '' Hershey, PA 17033 Telephone: (717) 533-3280 Fax: (717) 533-2795 e-mail: jel@jsdc.com VASILIKI M. BAKER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 928 CV 1988 RANDALL K. BAKER, CIVIL ACTION - LAW Defendant IN DIVORCE NOTICE TO PLEAD TO: Vasiliki M. Baker, Plaintiff c/o Lori K. Serratelli, Esquire and Jeni S. Madden, Esquire, Attorneys for Plaintiff YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Amended Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. JAMES, SMITH, DIETTERICK & CONNELLY, LLP Date: May 15, 2012 By: MAX J. SMITH, JR., quire I.D. No. 32114 JESSICA E. LOWE, Esquire I.D. No. 208041 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 Attorneys for Defendant, Randall K. Baker Max J. Smith, Jr., Esquire Attorney I.D. #32114 Jessica E. Lowe, Esquire Attorney I.D. #208041 James, Smith, Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Telephone: (717) 533-3280 Fax: (717) 533-2795 e-mail: jel(a_)jsdc.com VASILIKI M. BAKER, Plaintiff vs. RANDALL K. BAKER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 928 CV 1988 CIVIL ACTION - LAW IN DIVORCE AMENDED ANSWER WITH NEW MATTER TO MOTION TO ENFORCE PROPERTY SETTLEMENT AND SEPARATION AGREEMENT INCORPORATED IN DIVORCE DECREE DATED JULY 27,1988 AND NOW, comes the Defendant, Randall K. Baker, by and through his attorneys, James, Smith, Dietterick & Connelly, LLP, to answer the Motion to Enforce Property Settlement and Separation Agreement Incorporated in Divorce Decree Dated July 27, 1988 filed by Plaintiff, and to oppose the relief requested therein. In support thereof, Defendant avers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. The document attached as Exhibit "A" speaks for itself. 5. The document attached as Exhibit "A" speaks for itself. 6. Denied insofar as the intent of the parties is expressed in the document attached as Exhibit "A". 7. Admitted in part and denied in part. Defendant admits that Athanasia attended Pennsylvania State University. Defendant denies the costs of her education, as he lacks the knowledge and information necessary to respond. Strict proof thereof is hereby demanded. By way of further response, the documents attached as Exhibit "B" do not specifically identify the borrower or the purpose of the loan, or any other relevant identifying information. Furthermore Plaintiff's claim is barred by the Statue of Limitations, 42 Pa.C.S. §5525(a)(8). 8. Admitted in part and denied in part. Defendant admits that Alexandra attended Shippensburg University. Defendant denies the costs of her education, as he lacks the knowledge and information necessary to respond. Strict proof thereof is hereby demanded. By way of further response, the document attached as Exhibit "C" is insufficient to substantiate Plaintiff's claims. Furthermore Plaintiff's claim is barred by the Statue of Limitations, 42 Pa.C.S. §5525(a)(8). 9. Admitted in part and denied in part. Defendant admits that William attended Blue Ridge Community College. Defendant denies the costs of his education, as he lacks the knowledge and information necessary to respond. Strict proof thereof is hereby demanded. By way of further response, the document attached as Exhibit "D" is insufficient to substantiate Plaintiff's claims. Furthermore Plaintiff's claim is barred by the Statue of Limitations, 42 Pa.C.S. §5525(a)(8). 10. Denied. Defendant lacks the knowledge and information necessary to respond. Strict proof thereof is hereby demanded. 11. Denied. Defendant specifically denies that requests were made. 12. Denied. The Agreement is a document that speaks for itself. By way of further response, Plaintiff's claim is time-barred by 42 Pa.C.S. §5525(a)(8). 13. Denied. Paragraph thirteen (13) is denied for the reasons set forth in paragraphs seven (7) through nine (9) above. 14. Denied. The Agreement is a document that speaks for itself. By way of further response, Plaintiff's claim is time-barred by 42 Pa.C.S. §5525(a)(8). NEW MATTER 15. The responses to paragraphs one (1) through fourteen (14) are incorporated herein as though set forth in full. 16. According to her Motion, Plaintiff is seeking reimbursement for educational costs that were incurred between 1995 and 2008. 17. The relief sought in Plaintiff's Motion is time-barred by the four-year statute of limitations governing contract disputes, set forth at 42 Pa.C.S. §5525(a)(8). 18. Plaintiff's Motion is barred by the doctrine of laches. 19. Plaintiff's Motion is barred by the doctrine of waiver. WHEREFORE, Defendant Randall K. Baker hereby requests that this Honorable Court DISMISS Plaintiff's Motion to Enforce Property Settlement and Separation Agreement Incorporated in Divorce Decree Dated July 27, 1988 WITH PREJUDICE. Respectfully submitted, JAMES, SMITH, DIETTERICK & CONNELLY, LLP Date: May 15, 2012 By: A4o" M J. SMITH, J Esquire I.D. No. 32114 JESSICA E. LOWE, Esquire I.D. No. 208041 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 Attorneys for Defendant, Randall K. Baker I verify that the statements made in this Amended Answer with New Matter 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 unworn falsification to authorities. b % ? ? J MAX J. SMITH, JRJVEsquire on behalf of RANDALL K. BAKER VASILIKI M. BAKER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 928 CV 1988 RANDALL K. BAKER, CIVIL ACTION - LAW Defendant IN DIVORCE CERTIFICATE OF SERVICE AND NOW, this 1 ? day of May, 2012, I, MAX J. SMITH, JR., Esquire, Attorney for Defendant, RANDALL K. BAKER, hereby certify that I have this day sent a copy of Amended Answer with New Matter by depositing a certified copy of the same in the United States mail, postage prepaid, at Hershey, Pennsylvania, addressed to: Serratelli, Schiffman, Brown & Calhoon, P.C. Attn: Lori K. Serratelli, Esquire 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 Serratelli, Schiffinan, Brown & Calhoon, P.C. Attn: Jeni S. Madden, Esquire 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 VJ MAX J. SMITH, JR., quire I.D. No. 32114 JESSICA E. LOWE, Esquire I.D. No. 208041 James, Smith, Dietterick & Connelly LLP P.O. Box 650 Hershey, PA 17033 (717) 533-3280 VASILIKI M. BAKER, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. RANDALL K. BAKER, DEFENDANT 88-0928 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO ENFORCE PROPERTY SETTLEMENT AND SEPARATION AGREEMENT ORDER OF COURT /1-1/11 AND NOW, this :?)p day of July, 2012, following a hearing and argument by counsel, Plaintiff's Petition to Enforce the Property Settlement and Separation Agreement dated July 12, 1988 is DENIED IN PART and IN GRANTED PART. The request to have Defendant share in the college expenses of Athanasia and Alexandra is DENIED as being time-barred. The Defendant's obligation to share in the college expenses of William is GRANTED and he is directed to meet his obligation as follows: 1. With respect to the loan secured by Plaintiff, unless the parties otherwise agree on a schedule of payments, Defendant shall be obligated to pay one- half of Plaintiff's monthly obligation, including those payments made prior to the date of this order. In lieu of monthly payments, Defendant may elect to pay Plaintiff a sum equal to one-half of the outstanding principal, with no prepayment penalty. 2. With respect to the loan secured by William, unless the parties otherwise agree, Defendant shall reimburse Plaintiff for one-half of any payments made by her toward said loan obligation. Defendant shall do so within thirty (30) 88-0928 CIVIL TERM days of receiving written notice that Plaintiff has made a payment towards the loan obligation. 3. Any dispute regarding the payments due under the order shall first be submitted to mediation. If the parties are unable to agree on a mediator, they shall notify the court and one shall be selected for them. No other relief is awarded to either party. By the Court, Albert H. Maslan , J. ? Lori K. Serratelli, Esquire For Plaintiff E., C= c a ?ri Max J. Smith, Jr., Esquire MW C ' -f For Defendant s' > rZ ° :saa 00 e< led -< w C p, , ia, )eIVI C? r r Cn y' -^C ?L3 ;rJ -2- VASILIKI M. BAKER, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. RANDALL K. BAKER, DEFENDANT 88-0928 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO ENFORCE PROPERTY SETTLEMENT AND SEPARATION AGREEMENT MEMORANDUM OPINION AND ORDER OF COURT Masland, J., July 3, 2012:-- Before the court is Plaintiff's motion to enforce the property settlement and separation agreement that was incorporated in the divorce decree dated July 27, 1988. Specifically, Plaintiff seeks to enforce the provisions of paragraph 5.04 titled "Education of Children," and require Defendant to pay the sum of $92,079, which Plaintiff calculates to be one-half of the college expenses incurred by the parties' three children. Plaintiff also seeks reasonable attorney fees pursuant to the property settlement agreement and the award of any other relief that is proper and just. Defendant, in his answer and new matter claims that the relief sought by Plaintiff is time-barred by the four year statute of limitations governing contract disputes as set forth in 42 Pa.C.S. § 5525(a)(8). For the reasons set forth below, we are persuaded that Plaintiff is entitled to a portion of the relief requested. Factual Background The parties are the parents of three children: Athanasia Baker ("Athanasia"), born November 25, 1976; Alexandra Baker ("Alexandra"), born 88-0928 CIVIL TERM June 2, 1980; and William Baker ("William"), born August 16, 1986. When the parties entered into the property settlement and separation agreement ("Agreement") dated July 12, 1988, Athanasia was 11, Alexandra was 8, and William was not quite two years old. The Agreement was drafted by Plaintiffs attorney and although Defendant could recall few details regarding his counsel's explanation of the Agreement, paragraph 7.01 clearly notes "[t]he provisions of this agreement and thier [sic] legal affect have been fully explained to the parties by their respective counsel ... [and] each party acknowledges that he or she has received independent legal advice from counsel of his or her selection and that each fully understands the facts and has been fully informed as to his or her legal rights and obligations ...." Furthermore, we note that Defendant's signature was notarized by his counsel's then secretary and current partner. Therefore, whether Defendant recalls signing the document in his attorney's office, we are satisfied that he did. The details may elude them after all these years, but the parties were well aware of the import of the Agreement when it was executed. In particular, the parties were aware of the specific language in paragraph 5.04, which we set forth in its entirety: Husband and wife each agree to assume one-half of the financial responsibility associated with the education of the children and agrees to share in the cost of a college education if the child is so inclined so long as the child and Wife cooperate in all reasonalbe [sic] efforts as may be requested by Husband to obtain scholarships, grants, low interest loans, work study grants, etc. Husband's obligation hereunder shall be limited to the reasonable and necessary expenses at the appropriate institution for tuition, room and board, books, necessary incidentals and reasonable transportation expenses between said -2- 88-0928 CIVIL TERM institution and the child's residence; However [sic] Husband shall not be obligated to pay any additional support payments directly to Wife from and after a date three months following the child's randuation [sic] from high school or the child's 18 h birthday, whichever shall last occur. If either Husband or Wife is financially incapable of meeting this obligation to the children, said party shall petition the Court to conduct a hearing to make a determination of the [sic] whether this provision should be modified. Against this backdrop, we will briefly sketch the college experience of the parties' three children. Athanasia attended the Pennsylvania State University between 1995 and 1998, receiving a bachelor's degree in comparative literature. The total cost for her education was $29,925, of which $9,200 was paid though loans made to the Plaintiff and $17,125 was paid through loans made to Athanasia. Both loans were paid in full in December 2002. Alexandra graduated from Shippensburg University in 2002 with a bachelor's degree in elementary education. The total cost for her education was $23,602, of which $5,600 was paid through loans made to Plaintiff and $18,002 was paid through loans made to Alexandra. Plaintiff's loans have been paid in full; however, Alexandra's portion was not fully paid as of the date of the hearing, with approximately $18,000 outstanding. William attended Blue Ridge Community College in 2006 and 2007. After taking some time off, he attended Full Sail University from 2007 through 2010 and received a bachelor's degree in recording arts. The cost for William's education was $134,231 of which $105,231 was paid through loans made to Plaintiff (Plaintiff's Exhibit No. 4) and $29,000 in loans made to William (Plaintiff's Exhibit No. 8). -3- 88-0928 CIVIL TERM DISCUSSION In determining Defendant's obligation under the terms of the Agreement, we turn first to his claim that the action is time-barred by the Statute of Limitations, 42 Pa.C.S. § 5525(a)(8). Plaintiff argues that Defendant's obligation was ongoing, commencing with Athanasia's education and concluding with William's, and therefore, the four year statute should not toll until after William's education concluded. Neither the cases cited by Plaintiff nor a logical interpretation of the Agreement support her position. In the cases cited, the parties were faced with ongoing obligations involving mortgage and life insurance payments. Miller v. Miller, 983 A.2d 736, 738 (Pa. Super. Ct. 2009); Crispo v. Crispo, 909 A.2 308, 309 (Pa. Super. Ct. 2006). In the present case, although the language might appear to create an ongoing obligation with respect to all three children, it is clearly dependent on the individual and unique inclinations of each child. In essence, the Agreement requires an assessment of each child's needs and abilities. Clearly, the phrase "if the child is so inclined" demands individual consideration. Similarly, the requirement of "the child and wife [to] cooperate" in obtaining loans demands individual action. Finally, the responsibility of Husband to request "child and wife" to seek assistance contemplates distinct actions with respect to each child. Therefore, we find Plaintiff's argument that Defendant had a seamless obligation over the fifteen years of the children's education to be unavailing. Rather, the -4- 88-0928 CIVIL TERM parties created three related but distinct contingency agreements to pay for the education of the children. We next examine the obligation for each child to determine if it falls within the statute of limitations. Athanasia's bill for college was finalized in 1998, and although Alexandra still owes approximately $18,000, her final bill, and hence Defendant's obligation, was set in 2002. The rights and obligations for both Athanasia's and Alexandra's college expenses were fully established well over four years before Plaintiff's petition was filed. Therefore, the claim for reimbursement for the daughters' expenses fails. Although Defendant argued against any moral, ethical or equitable obligations he may have to pay for the education of his daughters, his only defense for the obligation to William, which is clearly within the statute of limitations, is that it is just not fair. Defendant would have us read into the Agreement that the children should only attend state-owned or state-related institutions in order to keep the cost down. In fact, there were no appropriate state-owned or state-related institutions in the Commonwealth. Given William's unique interests and talents (training for a career in the recording arts), his expenses at Full Sail University were "reasonable and necessary" under the terms of the Agreement. Furthermore, William complied with his obligation to "cooperate in all reasonalbe [sic] efforts as may be requested by Husband" with respect to the costs involved. Although the communication between Father and son may be somewhat strained, William's statements were credible regarding his discussion -5- 88-0928 CIVIL TERM with his Father regarding his intentions. Importantly, Defendant neither encouraged nor discouraged William before he attended Full Sail. Nor, did he demand any specific cost-saving actions by William. He may complain about the cost now, but his failure to speak. out constitutes an implicit agreement with Williams's intentions. Perhaps, Defendant did not protest because he assumed no one would demand his assistance, as was the case with his daughters. Plaintiff may have been lax in pursuing the other claims, but that does not preclude her claim for Williams's expenses. Next, we look at Defendant's argument that the Agreement is ambiguous with respect to what Defendant should contribute. On the one hand, the Defendant is required to "assume one-half of the financial responsibility associated with the education of the children" and, in the next phrase, he agrees to "share in the cost of a college education." This may not have been artfully drafted, but it is sufficiently clear for our purposes. We conclude that the first phrase focused on secondary education while the second phrase was clearly related to college alone. Thus, the Defendant must "share" in the cost of William's education. Finally, we turn to the issue of counsel fees. Paragraph 7.02 awards counsel fees to the prevailing party "in the event that future legal proceedings of any nature may be necessary." (Emphasis added.) With respect to the issue of who prevailed, given the split decision, both parties can rightfully claim that they prevailed. Under the circumstances of this case, it is both reasonable and logical that the parties remain responsible for their own legal expenses. -6- 88-0928 CIVIL TERM Additionally, we question whether the filing of this enforcement action was absolutely "necessary." The testimony indicated that neither Plaintiff nor the children discussed reimbursement with the Defendant since Alexandra did so in 2002. Sadly, we are all too familiar with situations where civil conversation between the parties is not possible. However, we suggest that it is time to stop swallowing rat poison and hope that the other person dies. In particular, we hope that there will be some meaningful communication regarding the manner in which Defendant meets his obligation under our order. Additional litigation over that issue will be draining and counterproductive. Instead, mediation may be an appropriate tool to resolve any impasse. Regardless, we find that neither party is entitled to an award of counsel fees at this juncture. CONCLUSION The parties were aware of the obligation under the Agreement to share in the college education of their children in 1988. Although Plaintiff pursued enforcement well over a day late with respect to their daughters, neither she nor William should be a dollar short. Therefore, we find that Defendant's "share" of William's college expenses is fifty percent; however, his share shall be equal to Plaintiff's. Therefore, Defendant will be responsible for fifty percent of the loan taken out by Plaintiff and, to the extent that Plaintiff makes contributions to William on the loan William has secured, Defendant shall reimburse Plaintiff for on-half of her payments. Accordingly we enter the following order. -7- 88-0928 CIVIL TERM ORDER OF COURT ,_7 /YR AND NOW, this . day of July, 2012, following a hearing and argument by counsel, Plaintiff's Petition to Enforce the Property Settlement and Separation Agreement dated July 12, 1988 is DENIED IN PART and IN GRANTED PART., The request to have Defendant share in the college expenses of Athanasia and Alexandra is DENIED as being time-barred. The Defendant's obligation to share in the college expenses of William is GRANTED and he is directed to meet his obligation as follows: 1. With respect to the loan secured by Plaintiff, unless the parties otherwise agree on a schedule of payments, Defendant shall be obligated to pay one- half of Plaintiff's monthly obligation, including those payments made prior to the date of this order. In lieu of monthly payments, Defendant may elect to pay Plaintiff a sum equal to one-half of the outstanding principal, with no prepayment penalty. 2. With respect to the loan secured by William, unless the parties otherwise agree, Defendant shall reimburse Plaintiff for one-half of any payments made by her toward said loan obligation. Defendant shall do so within thirty (30) days of receiving written notice that Plaintiff has made a payment towards the loan obligation. -8- 88-0928 CIVIL TERM 3. Any dispute regarding the payments due under the order shall first be submitted to mediation. If the parties are unable to agree on a mediator, they shall notify the court and one shall be selected for them. No other relief is awarded to either party. By the Court„ C! ? Albert H. Maslan , J. Lori K. Serratelli, Esquire For Plaintiff Max J.. Smith, Jr., Esquire For Defendant :saa -9- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL DIVISION VASILKI M. BAKER, Plaintiff File No. 928—CV-1988 CIVIL TERM VS. • IN DIVORCE ,RANDALL K. BAKER,_ Defendant NOTICE M REESUIME.PRIOR SURNAME Notice is hereby given that the Plaintiff Defendant in the above matter, —0 —':5 ZCD r") (select one by marking"X'), prior to the entry of a Final Decree in Divorce, CIO or X after the entry of a Final Decree in Divorce dated 07/27/88 -,hereby elects to resume the prior surname of—Vasilki Mall io5 ,and gives this written notice avowing fW her intention pursuant to the provisions of 54,P.S. §704, Date: L Signature Vasilki M. Baker Signature of me being resumed Vasilki Mallios COMMONWEALTH OF PENNSYLVANIA COUNTY On the day of k.`\ C)-013.- before me, the L Prothonotary or a Notary Public, personally appeared the above affiant known to me to be the person whose name is subscribed to the within document and acknowledged that he she executed the foregoing for the purpose therein contained. In Witness Whereof, I have hereunto set my hand and official seal, Prot onot or Notary Public NOTARIAL SEAL TAMMY E DIPPERY ftury Public SQUEHANNA TWP,DAUPHIN COUNTY [SUM,y,COMMIS910r,Expires Aug 6,2016 CL rtt� q3