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HomeMy WebLinkAbout02-0909HUMBERTO IRIZARRY, Plaintiff/Respondent V. MILDRED E. IRIZARRY, Defendant/Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 02-909 CIVIL TERM : : IN DIVORCE PETITION FOR SPECIAL RELIEF AND NOW, comes Defendant/Petitioner, Mildred E. Irizarry, by and through her attomey, Jacqueline M. Verney, Esquire, and presents the following representations in support of her Petition for Special Relief. 1. The Petitioner is Mildred E. Irizarry (hereinafter referred to as Wife), the Defendant in the above captioned divorce action and an adult individual currently residing at 118 West Hillcrest Drive, Carlisle, Cumberland County, Pennsylvania, 17013. 2. The Respondent is Humberto Irizarry (hereinafter referred to as Husband), the Plaintiff in the above captioned divorce action and an adult individual currently residing at 6804 Kerrywood Circle, Centrelville, Fairfax County, Virginia, 20121. 2. The parties executed a Separation Agreement which is dated October 27, 2000, attached hereto as Exhibit "A" and incorporated herein by reference. Husband signed the agreement on October 27, 2000. Wife signed the agreement on November 15, 2000. 3. The agreement purportedly provides for the division of marital property, spousal support, child support, and custody. The Agreement does not address the payment of alimony. 4. Husband has at various times since the execution of the agreement, failed to abide by the provisions thereof. 5. The Agreement does not equitably distribute the marital assets or provide for alimony or the waiver of alimony for Wife. 6. The parties separated in September, 1999. Wife has had primary physical custody of the parties' three children since that time. 7. On April 27, 2000 Wife was hospitalized at Chambersburg Hospital for a mental breakdown. Wife was released on May 2, 2000, diagnosed with depression and prescribed various medications to stabilize her condition. The medications, which she was taking at the time she executed the Agreement included Zoloft, Ativan, Klonopin, Risperdal. 8. In October, 2000, Husband threatened Wife that he would give her no money if she did not sign the proposed Agreement. 9. Wife, fearing she would be destitute and unable to care for the parties' three children, signed the Agreement without full disclosure of the marital assets or an understanding of the consequences of the Agreement. 10. Wife, due to her mental condition was unable to fully understand the consequences of her execution of the Agreement. WHEREFORE, Petitioner requests this Honorable Court schedule a hearing and after hearing void the Agreement dated October 27, 2000. Respectfully submitted, 44 south Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Petitioner VERIFICATION I verify that the facts included in the within matter are tree and correct based on information known to me or received from reliable sources. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S.A. § 4904 relating to unswom falsification to authorities. Dated: ~'//~/0 aa-. tMildred E. Irizarry SEPARATION AGREEMENT AGREEMENT. made thisc~Tday of (~"-C~cL.. 2000. between HUMBERTO [RIZARRY. residing at Building 472l. Apt 105. Wigle Court. Fort Meade. Maryland 20755 (hereinafter referred to as the "Husband"). and MILDRED ENID [RIZARRY. residing at 118 West Hillerest Drive, Carlisle. Pennsylvania 17013 (hereinafter referred to as the "Wife"). WITNESSETH: and WHEREAS. the panics hereto were duly married in Aguadilla. Puerto Rico. on December 27. WHEREAS. there are three children of the marriage, namely HUMBERTO ANGEL IRIZARRY born on December l l. 1983. JOSE NOEL [R. IZA. RRY born on August 10. 1986. and LUIS ANDRE IR. IZARRY born on September 5. 1987 (herein,'ffter referred to as the "Children" or individually as a "Child"): and there are no additional or expected issue of the marriage: and WHEREAS. the parties, in consequence of disputes and irreconcilable differences, separated on or about September I. 1999. and are noxv living separate and apart from each other, and have voluntarily and mutuall.,, agreed to continue to live separate and apart: and WHEREAS. each part).' has been advised of their rights to obtain full disclosure of the other pl~rly's financial condition, including income, expenses, assets, liabilities and assets transferred, and have obtained tull and satisfacto~' disclosure of such: and WHEREAS. the parties desire to resolve the issues of custody, visitation and support and to settle their financial, property, and other rights and obligations arising out of the marriage and other~vise. NOW, THEREFORE. in consideration of the mutual promises and agreements herein contained. the parties hereto agree as f'ollows: each other. discretion. !. Separate Residences. Tile Husband and Wife shall contiuue to live separate and apart from Each may reside ['rom time to tithe at such place or places as each may determine in his or her sole Each shall be free from harassment, interference, molestation, authori .ty and control, direct and redirect, by the other, as fully as if he or she were single and unmarried. Neither of the parties hereto shall interfere with the other in his or her respective liberty of' action or conduct, and each agrees that the other, at any and all times, may reside and be in such place and xxSth such relatives, friends and acquaintances as he or she may choose. Each part5.' agrees that they will not file for a divorce prior to January. I. 2002. 2. The Marital Residence. The Husband and Wife were the owners of premises known as 118 West Hillerest Drive. Carlisle. Pennsylvania 17013 (hereinafter referred to as the "House"). Contemporaneously x~ith the execution o1' this Agreement. the Husband shall convey the House to the Wife. who shall be the sole owner thcrco£ All expenses to include, but not be limited to. the real estate taxes, assessments, water charges and sewer rents, fire insurance premiums, fuel. utilities and mortgage debt service payments for the House. shall be paid by the Wife. The Wife shall also be responsible for all repairs. 3. Other Real Propert,,'. The parties agree that the real property listed in Exhibit A annexed. hereto shall belong to the parties indicated itl Exhibit A. subject to ally terms or conditions set forth therein. 4. Personal Property. The parties acknowledge that they previously have made a division and settlement of their personal property and personal effects, and that each is and shall be the owner of all personal property now in his or her possession, except as provided in Exhibit B annexed hereto. The parties agree that all furniture and household furnishings located in the House shall be the exclusive property of the Wife. except for any property of the Husband set forth in Exhibit B (which property the Husband promptly shall remove from the House). The parties agree that their atttomobiles shall be disposed of as follows: The Husband shall be the sole owner of the 2tI~0 Toyota CamP,.'. ID#HTIBG22KOYU692582. The Wife shall be the sole owner of the 1995 Plymouth Voyager, ID #2P4GH45ROSRI53099. The parties' son. HUMBERTO ANGEL IRIZARRY. shall become the owner of the 1996 Toyota Corolla. ID#2TIBAO2EOTC 143819. Each party shall be responsible for their own expenses relating to their vehicle, to include liens, maintenance, repairs and insurance. Each party shall o~vu. have and enjoy, free of any right or claim of the other p~my., all propem.- hereafter acqnired by such party. 5. Resl)onsibilitv Fnr Debts. The parties heretofore have incurred certain bills, debts and obligations described in Exhibit C annexed 'hereto. The Husband agrees to pay the items designated in Exhibit C as "Husband's Obligations" as the same become due: and the Wife agrees to pay the items designated in Exhibit C as "Wife's Obligations" as the same become due. Each party represents and warrants that, except as set forth in Exhibit C. hc or she. as tile case may be. bas not incurred or contracted any debts or obligations for which the other or any property of the other may be liable, either individually or jointly. Each party agrees that he or she hererffier shall not incur any debts or obligations for which the other may be liable. Each party shall indemnify, and hold the other Imrmless from and against any costs and expenses resulting from a breach or violation by such party, of any representation, warranty or covenant contained in this Article 5. 6. ~laintenance and Support. The Husband agrees to pay to the Wife. as and for her maintenance and support. Six Hundred and Fif~.' Dollars ($650.00) per month payable in equal monthly instalhnents commencing on the first day' of the month folloxving the date of this Agreement. and continuing on the first day of each succeeding month, until the earlier of the Husband's retirement from active militao' service (no earlier than January 1. 21} )2) the death of either party or tile re,narriage of the Wife. The Wife represents that tile ,aforesaid payments are and shall be sufficient to provide for her proper maintenance and support in accordance with the standard of living she now enjoys. When the Husband retires from the United States Arm)'. file Wife shall have the option to move back to Puerto Rico and have her properly shipped at the military's expense pursuant to the Husband's military orders. 7. Custody and Visitation. The Husband and Wife agree that the custody, supep/ision, care and control of the Children. shall be held jointly by the Husband and Wife with the Wife to have physical custody subject to the visitation rights of the Husband herein',ffter set forth. The Husband shall have the rights of visitation with the Children set forth in Exhibit D annexed hereto. The Wife agrees to be reasonable in accommodating an,,,' desires of the Husband for additional visitation with the Children or any express wishes of the Children to visit with the Husband. month until thc occurrence of the earlier of the following events: (a) the attainment of the age of 18 ,,'ears ('~3 years il' Ihe Child enters college by October follox,,ing attaining the age of 18 years and there:ffter continues to attend college) by or earlier emancipation of the Childt (b) the m~u'riage of the Child: (c) entry, by such Child in the military service of the United States: (d) the engaging b.~ such Child in full-time employment (but not employment limited to vacation and summer periods): (e) permanent r~sidence away from the residence of the Wile (other than residence at a school, camp or college): (t) the death of the Husband: or (g) the death of such Child. In addition to the aforesaid shpport payments, the Husband shall pay the reasonable expenses of the undergraduate college education of each Ch!Id. including without limitation tuition, application fees, the costs of ~oks and supplies, room and board, and incidental expenses normally incurred in connection with such education. The Husband. however, shall not be obligate{ to pay more than the amount remaining ,'ffter the children have applied for grants, loans, scholarships, etc. The Husband shall not be obi!gated to make any other child support and maimenance paymems. The Wife accepts these provisions in full and final settlement and satisfaction, and herein releases the Husband. :~bsolutely and forc~cr, from an.v claims or demands, for child support and maintenance, except as provided herein. An.~ pa.~ meres vohmtarily made by the Husban~ to the Wife for child support in excess of the amounts provided for herein shall not alter thc obligations of HusbandI hereunder nor create a precedent. The Husband shall be entitle~ to claim exemptions for the Children on his income tax returns. The Wife agrees not to claim exemptions for the Children on her income tax returns, and she releases her right to do so. The Wile promptly shallexecute and delive! to the Husband IRS Form 8332 or its equivalent, and the Husband shall be entitled to attach said form to his income tax returns. The Wife shall take such other actions as may be necessa~' or appropriate to enable the Husband t6 claim exemptions for the Children. 9. Income Taxes. The parties~have filed certainjoint Federal. State and local income tax returns. Each party represents to the other that to the be!t of' his or her knowledge and belief all income taxes sho~vn to be due on such returns have been duly paid. and tha~ no interest or penalty, is due with respect thereto. The parties shall execute and file joint tax returns for the calendarlyear 2000. and for any other years in which they are eligible to do so. Any refund payable with respect to any joint tax return, now or hereafter filed, shall be paid to the Husband and Wife in proportion to their respective incomes for the tax year. and the Husband and Wife shall endorse refund checks and lake such olher actions as may be necessary or appropriate to effectuate such payment. If there is any deficiency or tax liability assessed ou anyjomtly filed tax return, such deficiency or tax liabili~', with any interest or penalties thereon, shall be paid by the Husband and Wife in proportion to their respective incomes for the tax year. unless and to the extent that the same has been caused by the failure or neglect of the other party. The parties shall cooperate in the preparation of any tax returns to be jointly filed, so that riley ma.,,' be reviewed at a suitable time before the due ck'~te thereof. If there is an andit or examination ofanyjoint tax return. cach part3.' shall furnish such records, documents and other information as may be reasonably requested in councctio[1 therewith. 1O. Insurance. The parties represent and warrant that there is presently in full force and effect an insurance policy on his/her life in the face amount orS100.000.00. The parties agree that at all times after the date hereof he/she shall maintain in full force and effect a life insurance polio' on his life/her in a face amount of $ ll}ll.{10[I.[)0 ['or the benefit of the other pan'3.', who shall be the sole and irrevocable beneficiary thereof, until child support is [lo longer an obligation. Ali di~,'idends on said policies shall belong exclusively to the Husband/Wife. who shall be entitled either to receive the dividends or apply the same in reduction of premiums of their respective policies. In addition, tile Husband agrees to maintain in full force and effect TRIC,-~RE Ior an equivalent msur:mce~, dental msuronce and major medical insurance covering tile Wife and the Children at all times. The Husband shall not be required to maintain such insurance if and to the extent such coverage is provided by an employer of the Wife. The Husband shall pa.,,' all of all reasonable medical, dental and orthodontic expenses of the Children Iother than elective or cosmetic surgery or psychiatric or psychological expenses) to the extent not paid by such insurance. The Wife shall be responsible for her own unpaid expenses. Each party, shall cooperate with the other in the filing of any claims and in securing reimbursement for any expense paid by the other quali.~,.'ing for reimbursement under such insurance. The obligation of the Husband to maintain insurance pursuant to the provisions of this Article 10 shall terminate upon the occurrence of an.,,' event which results in the termination of the Husband's support obligations contained in this Agreement. Thereafter. each party shall be entitled to maintain such insurance as each in his or her discretion may elect, without further obligation to the other pursuam to this Article 10. !1. Pension Plan. The Husband agrees to pay to the Wife. promptly after receipt, a share of all payments hereafter received by the Husband under the pension plan of United States Army equal to ~0 percent of' the amount received multiplied by a fraction, the numerator of which simll be the number of years (or fraction thereof) of tile marriage of the Husband and Wife which overlapped active duty service, and the denominator of which shall be the number of years of active duty of the I-{ushand in the United States Ann.~'. The Husband will ensure that the Wife is listed as the recipient of the Survivor Benefit Plan (SBP). Each party, shall pay one-half (5t1%) of the Survival Benefit Plan premium. 12. Mutual Release and. Diseha~e of Claims in gstate~. Each pan).' shall hax'e the right to dispose of the propert.v of such pan).' by last will and testmnent in such manner as such part).' ma? deem proper in the sole discretion of such party, with the same force and effect as if the other patU,.' had died. Each pan.,,', indix-idually ~md I'or Iris or her heirs, executors, administrators, successors and assigns, hereby waix'es, releases and relinquishes :m.~ :md all claims, rights or interests as a su~'~ving spouse in or to any property., real or personal, which the other p~z'ny owns or possesses at death, or to which the other party or his or her estate ma? be entitled. Each pan?.' expressly x~,'niYes all rights which he or she now or may hereal'ter have pursuant to an.~' prox'isions of the laws of any State or countr? wl~ich ma.~' have jurisdiction over the estate of either part).' hereto on his or her death, as now or hereafter in effect, to elect to take in contra~'ention of tile terms of any will of' the other part),', x~'hether now or hereaRer executed. Each party recognizes that this waiver includes rights that he or she otherwise might have or ~cquire under 20 Penn~'lvania Statutes Section 2203 et seq.. any amendment thereof or an? successor statute. 1.1. Mutu:d Release of General Claims. Except as expressly pro¥ided in this Agreement. each paltry, hereby wai,.'es, releases, renounces and forever discharges all tights of dower, cutter,.., statutory, election and all other similar rights under the laws of Pennsylvania ot any other State. and all other claims, causes of action. rights or demands, known or unknown, past. present or future, which he or she now or hereafter has. might have. or could claim to ha,,'e against the other or any present or future property of the other b.~' reason of the marital relationship or an.,,' matter, thing or cause whatsoever. Nothing in this Article 13 shall be deemed to prevent either p;trty front ctfforciog the terms o~' this Agreement or from asserting any rights or claims e.~pressly reset'ed to either party itl this Agrccmem. Nothing herein shall impair or wn~ve any cause of action which either party, may have against the other for a dissolution of the marriage or any defenses either ma), have to any such cause or'action, The parties, by execution of this Agreement. have provided for a fair and equitable distribution of all property, belonging m the parties. Any reference or allocation with regard to property., whether real or personal, is made for the purpose of settling all claims to such properv/by the parties and for the purpose 0feffecma~ng an ~'luitable distribution of all property..' bet~en the parties. The disu'ibution o~' propert?., provided for herein shall be biading on both parties, now and in the future. Each par~y hereby waive~, releases, renounces and forever discharges all claims or rights to any properv,..' owned by the other or allocated to the other under this AgreemenL ~md all claims or rights for maintenance, support, counsel fees, suit money, or any similar claim, e.'ccept as expressly provided herein, 14, LeRnl Renresentation. In connection with this Agreement. the Husband I~s had the benefit o1' thc nde'ice of Office of the Staff Judge Ad~'ocate. independent counsel of his own selection. The Wife has been advised to select and obtain counsel to represent her in this matter. The Wife has had the benefit of the advice oran attorney located at Carlisle 13arracks. Penn~Ivania. Each par~.' acknowledges that all of the matters embodied in this Agreement. including all terms. cox'cnants, conditions, waivers, releases ,'md other provisions contained herein, are fully understood by him or her. that he or she is entering into this Agreement freely, voluntarily and aider due consideration of the consequences of doing so: and that this Agreement is valid and binding upon him or her. 15. Full Disclosure. Each part7 has made independent inqui~' into the complete financial circumstances of the other, and acknowledges that he or she is fully in_formed of the tncome, assets and ~nancial prospects of the other, and is satisfied that full disclosure has been made. The Social Securit7 Number of the ~usband is 584-35.1584. and the Social Securi ,t3, Number of the WLt'e is 584-11- 293o. 16. Mer~-,er and Survival. In the event that either pan7 obtains a judgment, order or decree divorce against the other, the provisions of this Agreement e×pressly shall be incorporated in the text thereof'with such s~-cificit.~' as the court shall permit and b.v reference as may be appropriate under law and the rules of the court. .All o1' the provisions ofthis Agreement shall be incorporated in any judgntent or decree of divorce, This Agreement shall survi~,~, and not be merged in, any judgment, decree or order, and the parties hereto shall remain bound to the performance of this Agreement in accordance with the terms hereof. t?. Notices. Any notice, demand or other communication required or permitted under this Agreement shall be in writing and shall be delivered by hand or by Federal Express courier or by certified or registered nmil, return receipt requested, with postage prepaid, to the parties at their addresses first above ~Titten or at such other addresses as they may designate by notice hereunder. 18. General Provisions. Tltis Agreement is entire and complete and embodies ail understandings and agreem'ents betx~'en the parties. No representation, warranty, agreement or undertaking of any kind or nature luts been made to either party to induce the making of this Agreement, except as is expressl.~' set forth herein. The parties acknowledge that there is no other agreement, oral or written· existing between them. No oral statement or prior written matter outside of this Agreement shall have any force or effect. This Agreement shall not be amended, modified, discharged or terminated except by a writing executed :tnd acknowledged by the party sought to be bound. An.v waiver by either part~.' of any provision of this Agreement. or of aa.~' right or option hereb.v, shall not be deemed a continuing waiver and shall not prevent such part.~ fmn~ thereafter insisting upon the strict performance or enforcement of such provision, right or option. The parties agree that each of them. upon request of the other party, or the legal representativ'es of thc other part~.', shall execute and deliver such other and further instruments as may be necessa~' or desirable for the purpose of giving ~ull force aad effect to the provisions of this Agreement. without charge therefor. Each par~.' shall notify, the other, by registered or certified mail. of any changa of address or telephone number within five days of such change. This Agreement and ali rights and obligations of the parties hereunder shall be construed :recording to the laws of the Commonwealth of Pennsylvania. ff any provision of this Agreement should be held to be invalid or unenforceable under the laws of any State. country or other jurisdiction, the remainder of this Agmemant shall continue in full force and effect. This Agreement shall be binding upon the parties hereto. ;md their respective heirs, executors. adltlitlistmtors, StlCCeSSOrS and assigns. above ~vritten. IN WITNESS WHEREOF. the parties hereto have executed this Agreement on the date first 10 EXHIBIT A Disposition Of Other Real Property The parties jointly own a building tot in Bario Camaseye Road 467, Lot #2 (878.47 SM). Aguadilla. Puerto Rico. Effective with the signing of this Agreement. Wife shall, as soon as possible, transfer by deed, all fight due and interest in and to the property, to the Husband. Thereafter. the Husband shall be responsible for all expenses relating flmrcto, EXHIBIT B Disposition Of Personal Property HUSBAND'S PROPERTY: The Husband shall retain the Fort Bragg Federal Credit Union checking account and savings account, consisting of Account #0584-35-1584, Liberty Account #2 and Shares Account #1. Ann Cox Painting Tools Freezer. pool table aod lawn tractor stay v,'ith the House. WIFE'S PROPERTY: Thc Wife shall retain the Banco Popular account #481-063382, and Members I'~ FCU account #170513000. EXHIBIT C Marital Debts HUSBAND'S OBLIGATIONS: All credit cards issued jointly will be cancelled and/or destroyed at the time tiffs Agreement is executed. Dish Network bill. $42.37 until the final divorce. AOL Account, $21.05 until a free internet service is established. Orthodontic (Humberto Angel), $76 with a balance of $2.190 I t~sunmce' Premium Sun Set Life. $45 WIFE'S OBLIGATIONS: All utility bills at 118 West Hillerest Drive Wells Fargo Home Mortgage. $78.464 Telephone bill t711-252-8593) EXHIBIT O The Husband is entitled to reasonable visitations xvith reasonable notice of at least 24 hours in advance. In addition. tile Husband is entitled to the following visitations: Weekends: On every, other weekend from pick-up at 6 p.m. Friday until return at 6 p.m. Sunday. Summer: For two weeks, with notice by Husband to Wife no later than April I of each year as to when summer vtsilation will be. Mother's/Father's Day: On Mother's Day with the Mother and on Father's Day with the Father. regardless of other scheduled visitation. Other: As agreed by tile Wife. Thc Husband shall be responsible for an related transportation expenses relating to the visitations. CERTIFICATE OF SERVICE I, Jacqueline M. Vemey, Esquire, hereby certifies that a tree and correct copy of the foregoing Pleading was served upon the following by personal service: Harold S. Irwin, III 35 East High Street Carlisle, PA 17013 Date: E~3i67 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Defendant/Petitioner HUMBERTO IRIZARRY, Plaintiff V. MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 02-909 CIVIL TERM : IN DIVORCE PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY OF SAID COURT: Please enter my appearance on behalf of the Defendant in the above captioned matter. Respectfully submitted, 61 q~eline M. Vemey, Esquire#23167 44 south Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Defendant HUMBERTO IRIZARRY, Plaintiff V. MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 02-909 CIVIL TERM : : IN DIVORCE ANSWER TO PETITION FOR RULE TOSHOW CAUSE AND NOW, comes Defendant, Mildred E. Irizarry, by and through her attomey, Jacqueline M. Vemey, Esquire, and presents the following representations in answer to the Petition for Rule to Show Cause. 2. 3. 4. 5. 6. 7. 8A-L 9. Admitted Admitted Denied. The parties separated in late October, 2000. Admitted. Admitted. Admitted. Admitted. Admitted. Denied. Defendant maintains that the Agreement is void as Defendant was mentally incompetent to comprehend the Agreement, was pressured and threatened by Plaintiff to sign and was not provided with full disclosure of the marital assets prior to the execution of the Agreement and the Agreement does not equitably distribute the marital property. 10. Admitted. 11. Denied. At various times up to and including the date of this Answer, Plaintiff has failed to abide by the provisions of the Agreement. 12. Denied. Defendant had previously asserted the duress, and complained about the threats from Plaintiff previously. Plaintiff continues to the date of this Answer to threaten Defendant with economic ruin if she continues to pursue this matter. 13. Denied. Defendant's filing of these economic claims are based on legal advice and a firm belief that Plaintiff overreached in pressuring Defendant to sign the Agreement. By way of further answer, Defendant has filed a Petition for Special Relief contemporaneous with the filing of this Answer, asking the Court to void the Agreement. 14. Denied. See Answers to Paragraphs 9-13. 15. Denied. The parties have only lived separate and apart since October, 2000, less than2 years. 16. Denied. Bifurcation is not appropriate in a matter where the economic claims are in dispute and a denial of said claims would adversely affect the parties' three children. 17. Denied. See answer to paragraph 16. WHEREFORE, Petitioner requests this Honorable Court deny the Petition for a Rule to Show Cause to bifurcate the divorce action. Respectfully submitted, ~a qt/dline M. Verney, Esquire #231~ 44 south Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Defendant VERIFICATION I verify that the facts included in the within matter are tree and correct based on information known to me or received from reliable sources. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S.A. § 4904 relating to unswom falsification to authorities. Dated: ~"/.5"//~ o% l~fildred E. Irizarry CERTIFICATE OF SERVICE I, Jacqueline M. Vemey, Esquire, hereby certifies that a true and correct copy of the foregoing Pleading was served upon the following by personal service: Harold S. Irwin, III 35 East High Street Carlisle, PA 17013 Date: ~0tacqff61ine M. Vemey, Esquire ff23167 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Defendant/Petitioner HAROLD S. IRWIN, III, ESQUIRE ATTORNEY ID NO. 29920 35 EAST HIGH STREET CARLISLE PA 17013 (717) 243-6090 ATTORNEY FOR PLAINTIFF HUMBERTO IRIZARRY, Plaintiff MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA _, : CIVIL ACTION - LAW ; : NO. 02- q0~ CIVIL TERM : IN DIVORCE NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree in 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 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, Cumberland County Courthouse, Carlisle, Pennsylvania 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse 1 Courthouse Square, 4th Floor Carlisle, Pennsylvania 170'13 717-249-6200 HUMBERTO IRIZARRY, Plaintiff Vg MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW _. : NO. 02 - ~0 ~ CIVIL TERM : IN DIVORCE COMPLAINT IN DIVORCE PURSUANT TO SECTION 3301 (d) OF THE DIVORCE CODE NOW, comes the plaintiff, Humberto Irizarry, by her attorney, Harold S. Irwin, III, Esquire, and files this complaint in divorce against the defendant, Mildred E. Irizarry, representing as follows: 1. The plaintiff is Humberto Irizarry, an adult individual residing at 6804 Kerrywood Circle, Centrelville, Fairfax County, Virginia 20121. 2. The defendant is Mildred E. Idzarry, an adult individual residing at 118 West Hillcrest Drive, Carlisle, Cumberland County, Pennsylvania 17013. 3. The defendant has been a resident of the Commonwealth of Pennsylvania at least six months pdor to the filing of this action in divorce. 4. The plaintiff and the defendant were married on December 27, 1981, in Aguadilla, Puerto Rico. 5. Pursuant to the Divorce Code, Section 3301 (d), the plaintiff avers as the grounds upon which this action is based that the marriage between the parties is irretrievably broken and that the parties hereto have lived separate and apart for a period of at least two years. The parties have lived separate and apart since September 1, 1999. 6. The parties have resolved all issues of equitable distribution, custody, child support and spousal support by virtue of a separation agreement entered into between the parties on October 27, 2000, a copy of which is incorporated herein by reference and attached hereto as Exhibit "A". 7. Both parties had the advice and representation of legal counsel in the negotiation and execution of said separation agreement. 8. The plaintiff avers that he has been advised of the availability of counseling and that said party has the right to request that the court require the parties to participate in counseling. WHEREFORE, the plaintiff demands judgment dissolving the mardage between the parties and for such further relief as your Honorable Court may deem equitable and just. I verify that the statements made in this complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. February _._~, 2002 Attorney fo~laintiff// 35 East High Carlisle, Pennsylvania 17013 (717) 243-6090 HUMBERTO IRIZARRY, Plaintiff MILDRED E. IRIZARRY~ Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA _, : CIVIL ACTION - LAW : : NO. 02 - ~toq CIVIL TERM : IN DIVORCE NOTICE TO THE DEFENDANT If you wish to deny any of the statements set forth in this affidavit, you must file a counter-affidavit within twenty days after this affidavit has been served on you or the statements will be admitted. PLAINTIFF'S AFFIDAVIT UNDER SECTION 330t (d) OF THE DIVORCE CODE 1. The parties to this action separated in September 1, 1999, and have continued to live separate and apart for a period of at least two years. 2. The mardage is irretrievably broken. 3. 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. 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. of 4904 relating to unsworn falsification to authorities. February 22, 2002 4 HUMBERTO IRIZARRY, Plaintiff MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 02 - CIVIL TERM : IN DIVORCE COUNTER-AFFIDAVIT UNDER SECTION 3301(d) OF THE DIVORCE CODE 1. Check either (a) or (b): (a) I do not oppose the entry of a divorce decree. (b) I oppose the entry of a divorce decree because (Check (i), (ii) or (both): (i) The parties to this action have not lived separate and apart for a period of at least two years. (ii) The marriage is not irretrievably broken. 2. Check either (a) or (b): (a) I do not wish to make any claims for economic relief. 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. (b) I wish to claim economic relief which may include alimony, division of property, lawyer's fees or expenses or other important rights. In understand that in addition to checking (b) above, I must also file all of my economic claims with the prothonotary in writing and serve them on the other party. If I fail to do so before the date set forth on the Notice of Intention to Request Divorce Decree, the divorce decree may be entered without further delay. 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. February ,2002 MILDRED E. IRIZARRY, Defendant NOTICE: If you do not wish to oppose the entry of a divorce decree and you do not wish to make a claim for economic relief, you need not file this counteraffidavit. EXHIBIT SEPARATION AGREEMENT Dated ~t ~ 7 ,2000 between HUMBERTO I~IZARRY and MILDRED ENID IR~ZARRY I Separate Residences 2 The Marital Residence 3 Other Real Property 4 Personal Property 5 Debts 6 Maintenance and Support 7 Custody and Visitation 8 Child Support 9 Income Taxes 10 Insurance 11 Pension Plan 12 Claims in Estates 13 General Claims 14 Legal Representation 15 Full Disclosure 16 Merger and Survival 17 Notices 18 General Provisions EXHIBIT A - Real Property EXHIBIT B - Personal Property EXHIBIT C - Marital Debts EXHIBIT D - Visitation Rights SEPARATION AGREEMENT AGREEMENT, made thisc~Tday of ~')~"~k~, 2000, between HUMBERTO IR/ZARRY, residing at Building 4721, Apt 105, Wigle Court, Fort Meade, Maryland 20755 (hereinafter referred to as the "Husband"), and MILDRED ENID IR/ZARRY, residing at 118 West Hillerest Drive, Carlisle, Pennsylvania 17013 (hercina.fter referred to as the "Wife"). WITNESSETH: 1981:and WHEREAS. the parties hereto were duly married in Aguadilla, Puerto Rico, on December 27, WHEREAS. there are three children of the marriage, namely HUMBERTO ANGEL IRIZARRY born on December 11, 1983, JOSE NOEL IRIZARRY born on August 10, 1986, and LUIS ANDRE IRIZARRY born on September 5. 1987 (hereinafter referred to as the "Children" or individually as a "Child"); and there are no additioual or expected issue of the marriage: and WHEREAS, the parties, in consequence of disputes and irreconcilable differences, separated on or about September l, 1999, and arc now living separate and apart from each other, and have voluntarily and mutually agreed to continue to live scp~irate and apart; and WHEREAS, each part~, has been advised of their rights to obtain full disclosure of the other party's financial condition, including income, expenses, assets, liabilities and assets transferred, and have obtained full and satisfactory disclosure of such; and WHEREAS, the parties desire to resolve the issues of custody, visitation and support and to settle their financial, property and other rights and obligations arising out of the marriage and otherwise. NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained, the parties hereto agree as follows: 1. Separate Residences. The Husband and Wife shall continue to live separate and apart from each other. Each may reside from time to time at such place or places as each may determine in his or her sole discretion. Each shall be free from harassment, interference, molestation, authority and control, direct and indirect, by the other, as fully as if he or she were single and unmarried. Neither of the parties hereto shall interfere ~vith the other in his or her respective liberty of action or conduct, and each agrees that the other, at any and all times, may reside and be in such place and ss~th such relatives, friends and acquaintances as he or she may choose. Each party agrees that they will not f~le for a divorce prior to January 1, 2002. 2. The Marital Residence. The Husband and Wife were the o~vners of premises known as 118 West Hillerest Drive, Carlisle, Pennsylvania 17013 (hereinafter referred to as the "House"). Contemporaneously ~vith the execution of this Agreement, the Husband shall convey the House to the Wife. who shall be the sole o~vner Iher¢of. All expenses to include, but not be limited to, the real estate taxes, assessments, water charges and sewer rents, fire insurance premiums, fuel. utilities and mortgage debt service payments for the House. shall be paid by the Wife. The Wife shall also be responsible for all repairs. 3. Other Real Property. The parties agree that the real property listed in Exhibit A annexed hereto shall belong to the parties indicated in Exhibit A. subject to any terms or conditions set forth therein. 4. Personal Property. The parties acknowledge that they previously have made a division and settlement of their personal property and personal effects, and that each is and shall be the o~vner of all personal property now in his or her possession, except as provided in Exhibit B annexed hereto. The parties agree that all ~urniture and household furnishings located in the House shall be the exclusive property, of the Wife, except for any property, of the Husband set forth in Exhibit B (which property the Husband promptly shall remove from the House). The parties agree that their automobiles shall be disposed of as follows: The Husband shall be the sole owner of the 2000 Toyota Camry, ID#HTIBG22KOYU692582. The Wife shall be the sole owner of the 1995 Plymouth Voyager, ID #2P4GH45ROSRI53099. The parties' son. HUMBERTO ANGEL IRIZARRY, shall become the owner of the 1996 Toyota Corolla, ID#2T I BAO2EOTC 143819. Each party shall be responsible for their osvn expenses relating to their vehicle, to include liens, maintenance, repairs and insurance. Each party shall own, have and enjoy, free of any right or claim of the other party, all property here~ffter acquired by such party. 5. Responsibility For Debts. The parties heretofore have incurred certain bills, debts and obligations described in Exhibit C annexed hereto. The Husband agrees to pay the items designated in Exhibit C as "Husband's Obligations" as the same become due; and the Wife agrees to pay the items designated in Exhibit C as "Wife's Obligations" as the same become due. Each party represents and warrants that, except as set forth in Exhibit C. he or she. as the case may be, has not incurred or contracted any debts or obligations for which the other or any property of the other may be liable, either individually or jointly. Each party, agrees that he or she hereafter shall not recur any debts or obligations for which the other may be liable. Each party shall indemnify and hold the other harmless from and against any costs and expenses resulting from a breach or violation by such party of any representation, warranty or covenant contained in this Article 5. 6. Maintenance and Support. The Husband agrees to pay to the Wife, as and for her maintenance and support, Six Hundred and Fifty Dollars ($650.00) per month payable in equal monthly installments comlnencing on the first day of the month following the date of this Agreement, and continuing on the first day of each succeeding month, until the earlier of the Husband's retirement from active military service (no earlier than January 1. 2002). the death of either party or the remarriage of the Wife. The Wife represents that the aforesaid payments are and shall be sufficient to provide for her proper maintenance and support in accordance with the standard of living she now enjoys. When the Husband retires from the United States Army, the Wife shall have the option to move back to Puerto Rico and have her property shipped at the military's expense pursuant to the Husband's military orders. 7. Custody and Visitation. The Husband and Wife agree that the custody, supervision, care and control of the Children, shall be held jointly by the Husband and Wife with the Wife to have physical custody subject to the visitation rights of the Husband hereinafter set forth. The Husband shall have the rights of visitation with the Ctfildren set forth in Exhibit D annexed hereto. The Wife agrees to be reasonable in accommodating any desires of the Husband for additional visitation with the Children or any express wishes of the Children to visit with the Husband. Neither party shall do anytlfing which may estrange the Children from the other party, or injure the opinion of the Children as to the other part3.', or hamper the free and natural development of the love and respect of the Children for the other party. Each party agrees that if either of them has any knowledge of any illness, accident or other circumstances seriously affecting the health or general welfare of the Children, he or she promptly shall notify the other of such circumstances. Each party shall be entitled to complete, detailed information from any doctor. psychologist, psychiatrist, consultant, or specialist attending any of the Children for any reason, or any teacher or school which any of the Children attends, and each party shall furnish to the other copies of all reports of any such person or entity.' The parties agree to consult with each other with respect to the education, religious training, health, welfare and other matters of similar importance affecting the Children, whose well-being, education and development at all times shall be the paramount consideration of the parties. The Children may not be adopted by any person without the prior written consent of the Husband and Wife. nor shall the Wife have the right, at any time, to appoint a guardian of the Children other than the Husband. The Children shall continue to be known under the Husband's surname, and shall not use or assume any other surname, notwithstanding any remarriage of the Wife. Neither party, shall initiate or permit the designation of "father" or "mother" or their equivalents to be used by the Children with reference to any person other than the parties. The failure by the Husband to exercise any visitation rights provided herein shall not be deemed a ~vaiver of any such rights. Nothing herein shall be construed as an obligation or duty. on the part of the Husband to visit the Children at any particular time. The visitation rights provided herein shall be entirely optional for the Husband. who may elect on any occasion or for any reason not to utilize the visitation rights without waiving such rights in the future. 8. Child Support. The Husband shall pay to the Wife, as and for the support and maintenance of each minor Child, the sum of Four Hundred Dollars ($400.00) per month (the total amount per month shall for all the children shall not exceed the Basic Allowance for Quarters at the "with dependent" rate), commencing on the first day of the month following the date of this Agreement. and continuing on the first day of each succeeding month until the occurrence of the earlier of the following events: (a) the attaimnent of the age of 18 years (23 years, if the Child enters college by October following attaining the age of 18 years and thereafter continues to attend college) by or earlier emancipation of the Child: (b) the marriage of the Child; (c) entry by such Child in the military service of the United States; (d) the engaging by such Child in full-time employment (but not employment limited to vacation and summer periods); (e) permanent residence away from the residence of the Wife (other than residence at a school, camp or college); (f) the death of the Husband; or (g) the death of such Child. In addition to the aforesaid support payments, the Husband shall pay the reasonable expenses of the undergraduate college education of each Child. including without limitation tuition, application fees, the costs of books and supplies, room and board, and incidental expenses normally incurred in connection with such education. The Husband, however, shall not be obligated to pay more than the amount remaining after the children have applied for grants, loans, scholarships, etc. The Husband shall not be obligated to make any other child support and maintenance payments. The Wife accepts these provisions in full and final settlement and satisfaction, and herein releases the Husband. absolutely and forever, from any claims or demands, for child support and maintenance, except as provided herein. Auy payments voluntarily made by the Husband to the Wife for child support in excess of the amounts provided for herein shall not alter the obligations of Husband hereunder nor create a precedent. The Husband shall be entitled to claim exemptions for the Children on his income tax returns. The Wife agrees not to claim exemptions for the Children on her income tax returns, and she releases her right to do so. The Wife promptly shall execute and deliver to the Husband IRS Form 8332 or its equivalent, and the Husband shall be entitled to attach said form to his income tax returns. The Wife shall take such other actions as may be necessary or appropriate to enable the Husband to claim exemptions for the Children. 9. Income Taxes, The parties have filed certain joint Federal, State and local income tax returns. Each party, represents to the other that to the best of his or her knowledge and belief all income taxes shown to be due on such returns have been duly paid, and that no interest or penalty is due with respect thereto. The parties shall execute and file joint tax returns for the calendar year 2000, and for any other years in which they are eligible to do so. Any refund payable with respect to any joint tax return, now or hereafter filed, shall be paid to the Husband and Wife in proportion to their respective incomes for the tax year, and the Husband and Wife shall endorse refund chccks and take such other actions as may be necessary or appropriate to effectuate such payment. If there is any deficiency or tax liability assessed on any jointly filed tax return, such deficiency or tax liability, with any interest or penalties thereon, shall be paid by the Husband and Wife in proportion to their respective incomes for the tax year. unless and to the extent that the same has been caused by the failure or neglect of the other party. The parties shall cooperate in the preparation of any tax returns to be jointly filed, so that they may be reviewed at a suitable time before the due date thereof. If there is an audit or examination of any joint tax return, each party, shall furnish such records, documents and other information as may be reasonably requested in connection therewith. 10. Insurance. The parties represent and warrant that there is presently in full force and effect an insurance policy on his/her life in the face amount of $100,000.00. The parties agree that at all times after the date hereof he/she shall maintain in full force and effect a life insurance policy on his life/her in a face mount of $100.000.00 for the benefit of the other part).', who shall be the sole and irrevocable beneficiary thereof, until child support is no longer an obligation. All dividends on said policies shall belong exclusively to the Husband/Wife. who shall be entitled either to receive the dividends or apply the same in reduction of premiums of their respective policies. In addition, the Husband agrees to maintain in full force and effect TRICARE (or an equivalent iusurance), dental insurance and major medical insurance covering the Wife and the Children at all times. The Husband shall not be required to maintain such insurance if and to the extent such coverage is provided by an employer of the Wife. The Husband shall pay all of all reasonable medical, dental and orthodontic expenses of the Children (other than elective or cosmetic surgery or psychiatric or psychological expenses) to the extent not paid by such insurance. The Wife shall be responsible for her own unpaid expenses. Each party shall cooperate with the other in the filing of any claims and in securing reimbursement for any expense paid by the other qualifying for reimbursement under such insurance. The obligation of the Husband to maintain insurance pursuant to the provisions of this Article 10 shall terminate upon the occurrence of any event which results in the termination of the Husband's support obligations contained in this Agrcement. Thereafter, each party shall be entitled to maintain such insurance as each in his or her discretion inay elect, without further obligation to the other pursuant to this Article 10. 11. Pension Plan. The Husband agrees to pay to the Wife, promptly after receipt, a share of all payments hereafter received by the Husband under the pension plan of United States Army equal to 50 percent of the amount received multiplied by a fraction, the numerator of which shall be the number of years (or fraction thereof) of the marriage of the Husband and Wife which overlapped active duty service, and the denominator of which shall be the number of years of active duty of the Husband in the United States Army. The Husband will ensnre that the Wife is listed as the recipient of the Survivor Benefit Plan (SBP). Each party shall pay one-half (50%) of the Survival Benefit Plan premium. 12. Mutual Release and Discharge of Claims in Estates. Each party, shall have the fight to dispose of the property of such party, by last will and testmnent in such Inanner as such party, may deem proper in the sole discretion of such party., with the same force and effect as if the other party, had died. Each party, individually aud for his or her heirs, executors, administrators, successors and assigns, hereby waives, releases and relinquishes au> and all claiins, rights or interests as a surviving spouse in or to any property., real or personal, which the other party owns or possesses at death, or to which the other party or his or her estate may be entitled. Each party expressly waives all rights which he or she now or may hereafter have pursuant to any provisions of the laws of any State or country, which may have jurisdiction over the estate of either party, hereto on his or her death, as now or hereafter in effect, to elect to take in contravention of the terms of any will of the other party., whether now or hereafter executed. Each party recognizes that this waiver includes rights that he or she otherwise might have or acquire under 20 Penns?'lvania Statutes Section 2203 et seq., any amendment thereof or an>' successor statute. 13. Mutual Release of General Claims. Except as expressly provided in this Agreement, each party hereby waives, releases, renounces and forever discharges all rights of dower, curte~', statuto~ election and all other similar fights under the laws of Pennsylvania or any other State, and all other claims, causes of action, rights or detnands, known or unknown, past, present or future, which he or she now or hereafter has, might have, or could claim to have against the other or any present or future property of the other by reason of the marital relationship or any matter, thing or cause whatsoever. Nothing in this Article 13 shall be deemed to prevent either party from enforcing the terms of this Agreement or from asserting any rights or claims expressly reserved to either party in this Agreement. Nothing herein shall impair or waive any cause of action which either party may have against the other for a dissolution of the marriage or any defenses either may have to any such cause of action. The parties, by execution of this Agreement, have provided for a fair and equitable distribution of all property belonging to the parties. Any reference or allocation with regard to property, whether real or personal, is made for the purpose of settling all claims to such property by the parties and for the purpose of effectuating an equitable distribution of all property bet~veen the parties. The distribution of property provided for herein shall be binding on both parties, now and in the future. Each party hereby waives, releases, renounces and forever discharges all claims or rights to any property owned by the other or allocated to the other under this Agreement, and all claims or rights for maintenance, support, counsel fees, suit money, or any similar claim, except as expressly provided herein. 14. Legal Representation. In connection with this Agreement, the Husband has had the benefit of the advice of Office of the Staff Judge Advocate, independent counsel of his own selection. The Wife has been advised to select and obtain counsel to represent her in this matter. The Wife has had the benefit of the advice of an attorney located at Carlisle Barracks, Pennsylvania. Each party, acknowledges that all of the matters embodied in this Agreement, including all terms, covenants, conditions, waivers, releases and other provisions contained herein, are fully understood by him or her; that he or she is entering into this Agreement freely, voluntarily and after due consideration of the consequences of doing so: and that this Agreement is valid and binding upon him or her. 15. Full Disclosure. Each party has made independent inqui~ into the complete financial circumstances of the other, and acknowledges that he or she is fully informed of the income, assets and financial prospects of the other, and is satisfied that full disclosure has been made. The Social Security Number of the Husband is 584-35-1584, and the Social Security Number of the Wife is 584-11- 2930. 16. Merger and Survival. In the event that either party obtains a judgment, order or decree of divorce against the other, the provisions of this Agreement expressly shall be incorporated in the text thereof with sttch specifici .ty as the court shall permit and by reference as may be appropriate under law and the rules of the court. All of the provisions of this Agreement shall be incorporated in any judgment or decree of divorce. This Agreement shall survive, and not be merged in, any judgment, decree or order, and the parties hereto shall remain bound to the performance of this Agreement in accordance with the terms hereof. 17. Notices. Any notice, demand or other communication required or permitted under this Agreement shall be in writing and shall be delivered by hand or by Federal Express courier or by certified or registered mail. return receipt requested, with postage prepaid, to the parties at their addresses first above written or at such other addresses as they may designate by notice hereunder. 18. General Provisions. This Agreement is entire and complete and embodies all understandings and agreements between the parties. No representation, warranty, agreement or undertaking of any kind or nature has been made to either party to induce the making of this Agreement, except as is expressly set forth herein. The parties acki~owledge that there is no other agreement, ora/or written, existing between them. No oral statement or prior written tnatter outside of this Agreement shall have any force or effect. This Agreement shall not be amended, modified, discharged or terminated except by a writing executed and acknowledged by the party sought to be bound. Any waiver by either party, of any provision of this Agreement. or of any right or option hereby, shall not be deemed a continuing xvaiver and shall not prevent such party from thereafter insisting upon the strict performance or enforcement of such provision, right or option. The parties agree that each of them. upon request of the other party or the legal representatives of the other party., shall execute and deliver such other and further instruments as may be necessary, or desirable for the purpose of giving full force and effect to the provisions of this Agreement. without charge therefor. Each party shall notify the other, by registered or certified mail. of any change of address or telephone number within five days of such change. This Agreement and all rights and obligations of the parties hereunder shall be construed according to the laws of the Commonwealth of Pennsylvania. If any provision of this Agreement should be held to be invalid or unenforceable under the laws of any State, country or other jurisdiction, the remainder of this Agreement shall continue in full force and effect. This Agreement shall be binding upon the parties hereto, and their respective heirs, executors. administrators, successors and assigns. above written. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first 10 STATE OF MARYLAND, COUNTY OF ANNE ARUNDEL, ss. On this ,~ 7day of ~ ,2000, before me, the undersigned officer, personally appeared HUMBERTO IRIZARRY, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within agreement, and acknowledged that he executed the same for the uses and purposes therein contained. IN WITNESS WHEREOF I hereunto set my hand and official seal. ARMENTHIA O. BROWN Notary Public ~altimore Co., MD My Comm..C. xps. April t. 2003 Notary Public · My commission expires on ,g//, ~2 ~(_~_y COMMONWEALTH OF PENNSYLVANIA. COUNTY OF CUMBERLAND , ss. On this 1 5 day of N ovemb e r , 2000, before me, the undersigned officer, personally appeared MILDRED ENID IRIZARRY, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within agreement, and acknowledged that she executed the same for the uses and purposes therein contained. IN WITNESS WHEREOF I hereunto set my hand and official seal. Nota My commission exl~reg on I Notar a Semi -1 I ;~c,';a A. Ortiz-~ ora, Notary Public I Nodh Middleton Twp.. Cumb~r,an~ ~l~,r~ty ~ My Commission Expires, .,:v ~. cu.,, EXHIBIT A Disposition Of Other Real Prooertv The parties jointly own a building lot in Bario Camaseye Road 467, Lot//2 (878.47 SM), Aguadilla, Puerto Rico. Effective with the signing of this Agreement, Wife shall, as soon as possible, transfer by deed, all right title and interest in and to the property to the Husband. Thereafter, the Husband shall be responsible for all expenses relating thereto. EXHIBIT B Disposition Of Personal Prooertv HUSBAND'S PROPERTY: The Husband shall retain the Fort Bragg Federal Credit Union checking account and savings account, consisting of Account #0584-35-1584, Liberty Account #2 and Shares Account #1. Ann Cox Painting Tools Frcczer. pool table and lawn tractor stay with the House. WIFE'S PROPERTY: The Wife shall retain the Banco Popular account #481-063382, and Members Ist FCU account #170513000. EXHIBIT C Marital Debts HUSBAND'S OBLIGATIONS: All credit cards issued.jointly will be cancelled and/or destroyed at the time tiffs Agreement is executed. Dish Network bill, $42.37 until the final divorce. AOL Account, $21.05 until a free internet service is established. Orthodontic (Humberto Angel), $76 with a balance of $2,190 Insurance Premium Sun Set Life, $45 WIFE'S OBLIGATIONS: All utili~' bills at 118 West Hillerest Drive Wells Fargo Home Mortgage, $78,464 Telephone bill (711-252-8593) EXHIBIT D The Husband is entitled to reasonable visitations with reasonable notice of at least 24 hours in advance. In addition, the Husband is entitled to the following visitations: Weekends: On every other weekend from pick-up at 6 p.m. Friday until return at 6 p.m. Sunday. Summer: For two weeks, with notice by Husband to Wife no later than April I of each year as to when sununer visitation will be. Mother's/Father's Day: On Mother's Day with the Mother and on Father's Day with the Father, regardless of other scheduled visitation. Other: As agreed by the Wife. The Husband shall be responsible for an related transportation expenses relating to the visitations. HAROLD S. IRWIN, III, ESQUIRE ATTORNEY ID NO. 29920 35 EAST HIGH STREET CARLISLE PA 170t 3 (717) 243-G090 ATTORNEY FOR pLAINTIFF HUMBERTO IRIZARRY, Plaintiff MILDRED E. IRIZARRY, DefendRnt IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02 - 0909 CIVIL TERM IN DIVORCE AFFIDAVIT OF SERVICE OF COMPLAINT PURSUANT TO PA. R.C.P. RULE NO. 1920.4 NOW, Harold S. Irwin, Ill, Esquire, being duly sworn according to law, does depose and state: 1. That he is a competent adult and attorney for the plaintiff in the above captioned action in divorce, 2. That a certified copy of the complaint in divome was served upon the defendant on or about February 26, 2002, by certified mail "restricted delivery", addressed to the defendant at 118 West Willcrest Drive, Carlisle, PA 17013, by certified mail, return receipt No. 7000 1530 0002 4695 8334. 3. That a copy of the sender's receipt and signed receipt for certified mail is attached hereto. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa. C. S. Section 4904, relating to unswom falsifi~, authorities,~ ^ ~,7 February 27, 2002 Harold S. Irwin, III Attorney for · Complete Item~ 1, 2, and 3. A~o complete item 4 if Res6icted Delivery is deshed. · Print your name and address on the reverse so that we can return tile card to yo~. · Attach this card to the back of the mailpiece, or on the front If space permito. t [] Insured Mail [] E~o~ M~I ,~l~m~m Rec~pt for M~chand~e [] C.O.D, 4. neetricted Dellveey9 (Exsm Fee) ~ ~3811, July 1999 Dem~a= R~um ~ 10~SSS-00.M-0~S2 HUMBERTO IRIZARRY, Plaintiff VS. MILDRED E. IRIZARRY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, ENNSYLVANIA CIVIL ACTION - LAW NO. 2002-909 CIVIL TERM IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case will proceed without you and a decree in divome or annulment may 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 or 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 the First Floor, Cumberland County Courthouse, South Hanover Street, Carlisle, Pennsylvania 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF MARITAL PROPERTY, LAWYER'S FEES, OR EXPENSES BEFORE A DIVORCE IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 HUMBERTO IRIZARRY, Plaintiff V. MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : IN DIVORCE AND CUSTODY : : NO. 02-909 CIVIL TERM COUNTERCLAIM AND NOW, comes the defendant, Mildred E. Irizarry, by and through her attorney, Jacqueline M. Vemey, Esquire and respectfully represents that: COUNT II EQUITABLE DISTRIBUTION 1. During the marriage, the parties accumulated certain real and personal property which is subject to distribution. 2. During the marriage, the parties incurred debt which is subject to distribution. WHEREFORE, Defendant requests this Honorable Court determine marital property and to order equitable distribution thereof. COUNT III COUNSEL FEES AND EXPENSES The averments set forth in paragraphs 1-2 are incorporated herein by reference. Defendant lacks sufficient funds to pay counsel fees and expenses incidental to 4. this action. 5. 6. Plaintiff receives a pension from the US military and an $80,000.00 salary. Defendant works part-time, approximately 60 hours every two weeks as a clerk earning $10.05. 7. Plaintiff is in a better economic position to pay counsel fees and expenses. 8. Defendant requests the Court to enter an Order requiring Plaintiff to pay Defendant's counsel fees and expenses. WHEREFORE, Defendant requests this Honorable Court to enter an order requiring Plaintiff to Defendant's counsel fees and expenses. COUNT IV SUPPORT/ALIMONY/ALIMONY PENDENTE LITE 9. The averments set forth in paragraphs 1-8 are incorporated herein by reference. 10. Defendant lacks sufficient property and income to provide her with a reasonable income and cannot adequately support herself. 11. Plaintiff has a far more economic superior position than Defendant and Defendant requires reasonable support to adequately maintain herself. WHEREFORE, Defendant respectfully requests this Honorable Court to enter an Order granting Defendant spousal support, alimony and/or alimony pendente lite Respectfully submitted, mey, Esquire 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Defendant Supreme Ct. ID. 23167 VERIFICATION I verify that the facts included in the within Counterclaim are true and correct based on information known to me or received from reliable sources. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S.A. § 4904 relating to unswom falsification to authorities. Dated: fi(~'ildred E. Irizal:ry, Defelt~nt x,~ CERTIFICATE OF SERVICE I, Jacqueline M. Vemey, Esquire, attorney for Defendant in the referenced matter, hereby certifies that a tree and correct copy of the Counterclaim and Counter-Affidavit was served on the following by First Class US Mail, postage prepaid on the date indicated: Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 Date: ey, Esquire #~r316 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Defendant HUMBERTO IRIZARRY, Plaintiff V. MILDRED E. IRIZARRY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-909 CIVIL TERM IN DIVORCE AND CUSTODY COUNTER-AFFIDAVIT UNDER SECTION 3301{D) OF THE DIVORCE CODE 1. Check either (a) or (b) (a) I do not oppose the entry ofa divome decree. (b) I oppose the entry of a divorce decree because (Check (i), (ii) or both): (i) The parties to this action have not lived separate and apart for a period of at least two years. (ii) The marriage is not irretrievably broken. 2. Check either (a) or (b): (a) I do not wish to make any claims for economic relief. 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. (b) I wish to claim economic relief which may include alimony, division of property, lawyer's fees or expenses or other important rights. I understand that in addition to checking (b) above, I must also file all of my economic claims with the prothonotary in writing and serve them on the other party. If I fail to do so before the date set forth on the Notice of Intention to Request Divorce Decree, the divorce decree may be entered without further delay. I verify that the statements made in this counter-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. I~ildred E. Irizarry, Def6,3dan~ NOTICE: IF YOU DO NOT WISH TO OPPOSE THE ENTRY OF A DIVORCE DECREE AND YOU DO NOT WISH TO MAKE ANY CLAIM FOR ECONOMIC RELIEF, YOU SHOULD NOT FILE THIS COUNTER-AFFIDAVIT CERTIFICATE OF SERVICE I, Jacqueline M. Vemey, Esquire, attorney for Defendant in the referenced matter, hereby certifies that a tree and correct copy of the Counterclaim and Counter-Affidavit was served on the following by First Class US Mail, postage prepaid on the date indicated: Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 Date: mey, Esquire #2~16 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Defendant SAIDIS SHUFF, FLOWER & LINDSAY ATfORNEySoAT,.LAW 26 W. High Street Carlisle, PA DANIEL L. THUMMA, va. CHRISTINE M. THUMMA, Plaintiff Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW NO. 200~- ?~ CIVILTERM IN DIVORCE ACCEPTANCE OF SERVICE I accept service of the reinstated Complaint in Divorce in the above captioned matter Date Christine M. Thumma, Defendant HAROLD S. IRWIN, III, ESQUIRE ATTORNEY ID NO. 29920 35 EAST HIGH STREET CARLISLE PA 17013 (7t7) 243-~090 ATTORNEY FOR PLAINTIFF HUMBERTO IRIZARRY, : IN THE COURT OF COMMON PLEAS OF Plaintiff V. MILDRED B. IRIZARRY, Defendent : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 02 - 0909 CIVIL TERM : IN DIVORCE PETITION FOR RULE TO SHOW CAUSE NOW comes the plaintiff, Humberto Idzarry, by his attorney, Harold S. Irwin, Ill, Esquire, and presents this petition for a rule to show cause, representing as follows: 1. Petitioner is Humberto Idzarry, plaintiff in this divorce action. 2. Respondent is Mildred E. Irizarry, the defendant in this divorce action. 3. The parties were married on December 27, 1981, but have lived separate and apart since September 1, 1999. 4. Petitioner initiated this ~ivorce action by filing a complaint in divorce pursuant to Section 3301 (d) of the Divorce Code on February 22, 2002. Respondent was served with the complaint on February 26, 2002. 5. On or about March 8, 2002, respondent filed a counterclaim against the petitioner requesting equitable distribution, counsel fees and expenses and spousal support, alimony and alimony pendente lite. 6. On March 15, 2002, petitioner filed a response to respondent's counterclaim asking that all of respondent's claims be dismissed and that the petitioner be awarded his counsel fees in defending against these claims. 7. The basis for petitioner's demand that the respondent's counterclaims be dismissed is that the parties entered into a comprehensive marital settlement agreement on October 27, 2000, wherein all economic claims of the 'parties were resolved by mutual agreement, a copy of which was attached to petitioner's divorce complaint as Exhibit "A" and the terms of which are incorporated herein by reference. 8. Specifically, by the terms of said agreement, the following benefits were provided to respondent: A. The marital residence at 118 West Hillcrest Drive, Carlisle, Pennsylvania 17013 (see paragraph two of the agreement); B. All furniture and houSehold furnishings located in the marital residence at the time of the agreement (see paragraph four of the agreement); C. A 1995 Plymouth Voyager motor vehicle (see paragraph four of the agreement); D. Two of the parties' bank accounts (se Exhibit "B" of the agreement); E. Plaintiffs assumption of vadous marital debts (see Exhibit "C" of the agreement); F. Spousal support in the amount of $650.00 per month from November 1, 2000 through the date of plaintiffs retirement from the U.S. Army on January 31,2002, which sum defendant represented was sufficient to provide for her proper maintenance and support in accordance with the standard of living she enjoyed (see paragraph six of the agreement); G. Child support in the amount of $1,200.00 per month from November 1,2000 and a commitment from plaintiff to pay the reasonable costs of the parties' children's college education (see paragraph eight of the agreement); H. A prorata share of any refund paid on the basis of any jointly filed income tax return (see paragraph nine of the agreement); I. Beneficiary designation on plaintiffs $100,000.00 life insurance policy, irrevocable until all child support is terminated (see paragraph ten of the agreement); J. Major medical insurance and dental insurance coverage for so long as plaintiffs spousal support obligations were in effect, together with the extension of coverage for the parties' children and including plaintiffs obligation to pay for all unreimbursed medical, dental and orthodontic expense of the children (see paragraph ten of the agreement); K. One-half of plaintiffs military pension (see paragraph eleven of the agreement); and L. Other economic benefits. 9. By virtue of this agreement, the parties mutually released and discharged any claim in each other's estate (paragraph twelve), mutually released all general claims except as expressly provided in the agreement, expressly agreed that the distribution of property contained in the agreement was binding on both parties then and in the future and, except as provided therein, waived all claims or rights to any property owned by the other and all claims for maintenance, support, counsel fees, expenses of suit, or any similar claim (see paragraph thirteen of the agreement). 10. By virtue of this agreement, the parties resolved all issues between them regarding the custody of their minor children. 11. Following the execution of this agreement by the parties, plaintiff diligently provided to the defendant the economic benefits extended to her by virtue of the parties' separation agreement and defendant continued to reap the financial benefits of all of the terms thereof through the m. onth of January, 2002. 12. Not until the plaintiff filed for divorce on February 22, 2002 did defendant suggest that the terms of the agreement were inappropriate or unfair or that she executed the agreement under any threat or duress or other physical or legal disability. 13. Plaintiff contends that the filing of these claims for economic relief in the face of the parties' agreement is an abuse of the powers of this court, is a malicious and frivolous act and is so egregious that the court should require that the plaintiff's attorney fees and costs in the defense against these counterclaims should be reimbursed to him by the defendant. 14. Petitioner believes and therefore avers that not only is respondent attempting to obtain economic benefits to which she is not entitled based on the execution of the aforesaid written mutual agreement negotiated in good faith and with the assistance of legal counsel, but she is also attempting inappropriately to prevent petitioner from obtaining a divorce in a reasonable, timely fashion. 15. The parties have lived separate and apart for nearly three years and petitioner wishes to have the marriage terminated at this time and without further delay. 16. Bifurcation will separate the termination of the marriage from the ancillary economic claims of the respondent so that the marriage and petitioner's personal life is no longer held hostage to the spurious and inappropriate economic demands of plaintiff. 17. Defendant believes and therefor avers that bifurcation will further encourage case settlement between the time that the divorce is decreed and the ancillary claims reach a hearing before the Master. WHEREFORE, defendant requests your Honorable Court to issue a rule upon the plaintiff to show cause why this divorce action should not be bifurcated. May Z~, 2002 ~,ttorney for Hum~zarry, Plaintiff VERIFICATION I verify that the statements made in this complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. May /~/, 2002 HUMBERTO IRIZARRY, Plaintiff V. MILDRED E. IRIZARRY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-0909 CIVIL TERM ORDER OF COURT AND NOW, this 3ra day of June, 2002, upon consideration of Plaintiff's Petition for Rule To Show Cause, a hearing is scheduled for Monday, August 5, 2002, at 2:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, esley Oler, ~ Harold S. Irwin, III, Esq. 35 East High Street Carlisle, PA 17013 Attorney for Plaintiff /Jacqueline M. Vemey, Esq. 44 S. Hanover Street Carlisle, PA 17013 Attorney for Defendant :rc HUMBERTO IRIZARRY, Plaintiff V. MILDRED E. IRIZARRY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-0909 CIVIL TERM ORDER OF COURT AND NOW, this 7th day of August, 2002, a continuation of the hearing regarding Plaintiff's Petition for Rule To Show Cause, is scheduled for Friday, August 16, 2002, at 11:00 a..m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, J. ~r.,~sley Oler, J. . ,,~I-Iarold S. Irwin, III, Esq. 35 East High Street Carlisle, PA 17013 Attorney for Plaintiff Jacqueline M. Vemey, Esq. 44 S. Hanover Street Carlisle, PA 17013 Attorney for Defendant :rc HUMBERTO IRIZARRY, Plaintiff Vo MILDRED E. IRIZARRY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - .~h.W : : : No. 02-0909 CIVIL TERM ORDER OF COURT AND NOW, this 5th day of August, 2002, upon consideration of the Petition for Special Relief filed by the Plaintiff in the above-captioned action, which petition is addressed to the issue of bifurcation of this case, and following an initial period of hearing at which the record was not completed, the record shall remain open, and counsel are requested to contact the Court's secretary to schedule a further period for hearing. It is noted that, at the time of adjournment on today's date, Plaintiff had presented his case-in-chief on the petition, and Defendant had completed her direct examination with respect to her own testimony. It is noted further that, at the time of adjournment, Plaintiff's Exhibit 1 had been identified and admitted. admitted. No other exhibits had been identified or By the Court, J./~&iey O~ ~-r'., F. ' Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 For the Plaintiff Jacqueline M. Verney, Esquire 44 S. Hanover Street Carlisle, PA 17013 For the Defendant wcy HUMBERTO IRIZARRY, Plaintiff/Respondent MILDRED E. IRIZARRY, Defendant/Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA _. : CIVIL ACTION - LAW : NO. 02-909 CIVIL TERM : IN DIVORCE ORDER OF COURT AND NOW, this //-//~7~ day of ~_~ ,2002, upon consideration / of the Petition for Special Relief, a hearing is hereby scheduled for ~ c~--~, 2002, at ~;,~d) o'clock ~/~. M., in Courtroom Number / on the fourth floor of the Cumberland County Courthouse, Carlisle, Pennsylvania. BYTHECOURT, Jo cc'~cqueline M. Vemey, Esquire, for Petitioner /ylarold S. Irwin, III, Esquire, for Respondent HUMBERTO IRIZARRY, Plaintiff V. MILDRED E. IRIZARRY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-0909 CIVIL TERM IN RE: PLAINTIFF'S PETITION FOR SPECIAL RELIEF BEFORE OLER, J. ORDER OF COURT AND NOW, this 19t~ day of August, 2002, upon consideration of Plaintiff's Petition for Rule to Show Cause in the above-captioned matter, requesting bifurcation of this divorce case, and following a hearing held on August 5, 2002, and August 16, 2002, and it appearing (a) that, although the marriage of the parties is irretrievably broken the parties are not in agreement on when they separated, (b) that by either party's calculation the two-year statutory period will have expired by February 1, 2003,~ and (c) that the advantages of bifurcation, including facilitation of the parties' abilities to restructure their lives outweigh any disadvantages, Plaintiff's request for bifurcation is granted and either party may file a praecipe to transmit record with respect to entry of a divorce decree; provided, that such praecipe may not be filed prior to February 1, 2003, unless a court order has been earlier entered finding that the two-year statutory period of separation has run. ~ A review of the notes of testimony indicates that Defendant believed the parties' last sexual encounter was in January, 2001. '~Harold S. Irwin, III, Esq. 35 East High Street Carlisle, PA 17013 Attorney for Plaintiff Jacqueline M. Vemey, Esq. 44 S. Hanover Street Carlisle, PA 17013 Attorney for Defendant :rc BY THE COURT, /Wesley Oler, J.,~/ HUMBERTO IRIZARRY, Plaintiff Vo MILDRED E. IRIZ~LRRY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW No. 02-0909 CIVIL TERM ORDER OF COURT AND NOW, this 16th day of August, 2002, upon consideration of the Petition for Rule To Show Cause filed by the Plaintiff in the above-captioned action, which petition is addressed to the issue of bifurcation of this case, and following a second day of hearing, the record is declared closed, and the matter is taken under advisement. ~arold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 For the Plaintiff /Jacqueline M. Verney, Esquire 44 S. Hanover Street Carlisle, PA 17013 For the Defendant By the Court, J~W~s~ey O1~ Jr. i J. wcy HUMBERTO IRIZARRY, Plaintiff MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 02 - 0909 CIVIL TERM : IN DIVORCE PETITION FOR RECONSIDERATION IN ACCORDANCE WITH Pa R. Civ. P 1930.2 NOW comes the petitioners, Humberto Irizarry, by their attorney, Harold S. Irwin, III, Esquire, and presents this Petition for Reconsideration pursuant to the Pennsylvania Rules of Civil Procedure, Rule 1930.2, representing as follows: 1. Petitioner is Humberto Ifizarry, plaintiff in this divorce action. 2. Respondent is Mildred E. Irizarry, the defendant in this divorce action. 3. On June 12, 2002, plaintiff filed a petition for a rule to show cause why this divorce should not be bifurcated. petition. On August 5 and August 16, 2002, the Court held a hearing on this 5. Following the hearing, the Court indicated to counsel for the parties that while the issue of bifurcation was ripe for decision, the Court could not make a determination as to when the parties separated. The Court further indicated that since the parties could not agree on the date that they had separated, if bifurcation was ordered, the Court could not permit a divorce decree to be requested until the earliest time both parties agreed that they had separated. 6. On August 19, 2002, the Court entered an Order, bifurcating this divorce, but finding that since the defendant testified that the parties last had a sexual encounter in January, 2001, neither party may file a praecipe to transmit the record in this case until February 1, 2003. 7. In October, 2000, the parties executed a Separation Agreement, resolving all economic issues between the parties and stating specifically therein that the parties had lived separate and apart since September 1, 1999. 8. The plaintiff has always consistently maintained, in all relevant pleadings and in his sworn testimony, that the date of separation was September 1, 1999. 9. The defendant has been totally inconsistent about the date of the parties' separation, providing a variety of possible dates, as follows: A. On March 8, 2002, in her answer and counterclaim to the divorce complaint (a verified pleading signed by the defendant), she declined to deny any of the averments of the plaintiff's complaint, one of which .alleged separation on September 1, 1999, but included only additional counts containing economic claims. B. On March 8, 2002, in her Counter-Affidavit under Section 3301 (d) of the Divorce Code (a verified document signed by the defendant), defendant specifically indicated that she had no objection to the entry of a divorce decree, declined to indicate that the parties had not yet been separated for more than two years and indicated only that she wished to make economic claims. C. On August 5, 2002, in her Answer to the Petition for Bifurcation (a verified pleading signed by the defendant), defendant alleged that the parties separated in October, 2000. D. On August 5, 2002, in her Petition for Special Relief ( a verified pleading signed by the defendant), defendant alleged that the parties separated in September, 1999. E. On August 5, 2002, during her sworn testimony, defendant testified that after she found out during the Summer of 1999 that the plaintiff was interested in another woman, defendant no longer wanted to have anything to do with the plaintiff physically. F. On August 5, 2002, during her sworn testimony, defendant testified that the last sexual encounter between the parties was in April, 2000, just prior to her brief stay in the hospital. G. Defendant also testified at one point that the parties occasionally did have marital relations until October, 2000. H. Finally, during her swom testimony, defendant also testified that the last sexual encounter between the parties may have been in January, 2001. I. During closing statements, counsel for d~fendant, under questioning from the Court, indicated that the defendant's position was that the parties separated in October, 2000. 10. Plaintiff believes and therefore avers that the defendant's pleadings and testimony are not credible as to the date of separation and that the Court had sufficient information and exposure to this case, both in verified pleadings and sworn testimony from which to make its own finding as to the date of separation. 11. Had the Court made its own finding as to the date of separation, the Court would have been fully justified in finding that the date of separation was September 1, 1999, the date expressly agreed to by the parties in the Separation Agreement, which agreement was signed by the parties while they were each represented by independent legal counsel. 12. Such a finding is also consistent with the defendant's counterclaim to the divorce and her counter-affidavit under Section 3301 (d) of the Divorce Code, in which she stated that she did not object to the entry of a divorce decree and declined to state that the parties had not been separated for more than two years. 13. In the very least, the Court would have been fully justified in finding that the separation occurred in October, 2000, at the time of the execution of the Separation Agreement, the latest date stipulated to in the defendant's pleadings and the date which counsel for defendant, during closing statements .at the hearing, indicated was the date of separation. 14. Under all of the circumstances of this case, it is grossly unfair to require the plaintiff to wait until February, 2003, to obtain a divorce when the only reason defendant instigated all of this litigation was to assert economic claims which are already being otherwise addressed. WHEREFORE Petitioner prays this Honorable Court to enter an order granting petitioner's request for reconsideration and scheduling argument on the matter before the Court en banc. August 26, 2002 35 East High Street, Suite 202 Carlisle, PA 17013 (717) 243-6090 CERTIFICATE OF SERVICe= I, Harold S. Irwin, III, Esquire, counsel for petitioner, do hereby certify that I have this date served a copy of this petition upon counsel for respondent by depositing it in the United States mail at Carlisle, Pennsylvania, first class postage, prepaid this 26th day of August, 2002, addressed as followings: JACQUELINE VERNEY ESQ 44 S HANOVER ST CARLISLE PA 17013 Supreme Court ID No. 29920 35 East High Street, Suite 202 Carlisle, PA 17013 717-243-6090 HUMBERTO IRIZARRY, Plaintiff V. MILDRED E. IRIZARRY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-0909 CIVIL TERM IN RE: PLAINTIFF'S PETITION FOR RECONSIDERATION IN ACCORDANCE WITH PA. R. CIV. P. 1930.2 ORDER OF COURT AND NOW, this 30a~ day of August, 2002, upon consideration of Plaintiff's Petition for Reconsideration in Accordance with Pa. R. Civ. P. 1930.2, the Petition is denied. BYTHECOURT, /l~arold S. Irwin, III, Esq. 35 East High Street Carlisle, PA 17013 Attorney for Plaintiff / Jacqueline M. Vemey, Esq. 44 S. Hanover Street Carlisle, PA 17013 Attorney for Defendant esley Ole(_~., :rc HUMBERTO IRIZARRY, PlaJntflY/Respondent VS. MILDRED E. IRIZARRY, DefendanttPetitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - DIVORCE NO. 2002-909 CIV[L TERM IN DIVORCE Dl~ 31969 Pacses0 ~7//oc/ ORDER OF COURT AND NOW, this 30~ day of August, 2002, upon consideration of the attached Petition for Alimony Pendente Lite and/or counsel fees, it is hereby directed that the parties and their respective counsel appear before ~ on October 87 2002 at 10:30 A.M. for a conference, at 13 N. Hanover St., Carlisle, PA 17013, after which the conference officer may recommend that an Order for Alimony Pendente Lite be entered. YOU are further ordered to bring to the conference: (1) a ~ue copy of your most recent Federal Income Tax Return, including W-2's as filed (2) your pay stubs for the preceding six (6) months (3) the Income and Expense Statement attached to this order, completed as required by Rule 1910.11© (4) verification of child care expenses (5) proof of medical coverage which you may have, or may have available to you IF you fail to appear for the conference or bring the required documents, the Court may issue a warrant for your arrest. Mail copies on Petitioner 8-30-02 to: < Respondent Jacqneline Vemey, Esquire Harold Irwin, Esquire Date of Order: August 30, 2002 BY THE COURT, George E. Hoffer, President Judge R~ j. Shadday, Conference Officer YOU HAVE ~ RIGHT TO A LAWYER, WHO MAY ATTEND THi~ CONFERENCE AND REPRESENT YOU. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE TUF~ OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU MAY GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVE. CARLISLE, PENNSYLVANIA 17013 (717) 249-3166 Z~ :El ~d ~- d3S ZO A~¥1Oi'it,h~.Odd 2:% ~0 HUMBERTO IRIZARRY, Plaintiff VS. MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, ENNSYLVANIA _. : CIVIL ACTION - LAW : NO. 2002-909 CIVIL TERM : : IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case will proceed without you and a decree in divorce or annulment may 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 or 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 the First Floor, Cumberland County Courthouse, South Hanover Street, Carlisle, Pennsylvania 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF MARITAL PROPERTY, LAWYER'S FEES, OR EXPENSES BEFORE A DIVORCE IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 HUMBERTO IRIZARRY, Plaintiff V. MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : IN DIVORCE AND CUSTODY : : NO. 02-909 CIVIL TERM COUNTERCLAIM AND NOW, comes the defendant, Mildred E. Irizarry, by and through her attorney, Jacqueline M. Vemey, Esquire and respectfully represents that: COUNT II EQUITABLE DISTRIBUTION 1. During the marriage, the parties accumulated certain real and personal property which is subject to distribution. 2. During the marriage, the parties incurred debt which is subject to distribution. WHEREFORE, Defendant requests this Honorable Court determine marital property and to order equitable distribution thereof. 4. this action. COUNT III COUNSEL FEES AND EXPENSES The averments set forth in paragraphs 1-2 are incorporated herein by reference. Defendant lacks sufficient funds to pay counsel fees and expenses incidental to 5. Plaintiff receives a pension from the US military and an $80,000.00 salary. 6. Defendant works part-time, approximately 60 hours every two weeks as a clerk earning $10.05. 7. Plaintiff is in a better economic position to pay counsel fees and expenses. 8. Defendant requests the Court to enter an Order requiring Plaintiff to pay D ' efendant s counsel fees and expenses. WHEREFORE, Defendant requests this Honorable Court to enter an order requiring Plaintiff to Defendant's counsel fees and expenses. COUNT IV SUPPORT/ALIMONY/ALIMONY PENDENTE LITE 9. The averments set forth in paragraphs 1-8 are incorporated herein by reference. 10. Defendant lacks sufficient property and income to provide her with a reasonable income and cannot adequately support herself. 11. Plaintiff has a far more economic superior position than Defendant and Defendant requires reasonable support to adequately maintain herself. WHEREFORE, Defendant respectfully requests this Honorable Court to enter an Order granting Defendant spousal support, alimony and/or alimony pendente lite Date: Respectfully submitted, 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Defendant Supreme Ct. ID. 23167 VERIFICATION I verify that the facts included in the within Counterclaim are true and correct based on information known to me or received from reliable sources. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S.A. § 4904 relating to unswom falsification to authorities. Dated: CERTIFICATE OF SERVICE I, Jacqueline M. Vemey, Esquire, attorney for Defendant in the referenced matter, hereby certifies that a tree and correct copy of the Counterclaim and Counter-Affidavit was served on the following by First Class US Mail, postage prepaid on the date indicated: Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 Date: ffacq~(~line M. Ve-r~ey, Esquire #j~3167 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Defendant HUMBERTO IRIZARRY, Plaintiff Ve MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF ; CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 02-909 CIVIL TERM : IN DIVORCE : DR//31969 : Pacses# 271104765 PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY FO SAID COURT: Please withdraw my appearance on behalf of the Defendant, Mildred E. Irizarry, in the above captioned matter. Date: Respectfully submitted, ~cq~!j~]ine M. v~mey, Esquire #Z~3167 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Defendant I Mildred E. Irizarry, the defendant in the above captioned matter, hereby consent to the withdrawal of appearance by my attorney, Jacqueline M. Vemey, Esquire. /19li~d~ed E. Iriz~'arry, De~,~tdanL "5 CERTIFICATE OF SERVICE I, Jacqueline M. Vemey, Esquire, hereby certifies that a true and correct copy of the foregoing Praecipe was served upon the following by First Class US Mail, postage prepaid by placing the same in the United States mail on the date indicated Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 Domestic Relations Office 13 North Hanover Street Carlisle, PA 17013 Date: y, Esquire #23167°- 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Defendant In the Court of Common Pleas of CUMBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION MILDRED E. IRIZARRY Plaintiff vs. R-u-MB ERTO IRIZARRY Defendant ) Docket Number ) ) PACSES Case Number ) ) Other State ID Number 02-909 CIVIL 271104765 ORDER OF COURT YOU, HUMBERTO IRIZARRY 6804 KERRY WOOD CIR, CENTREVILLE, VA. 20121-5033-04 plaintiff/defendant of are ordered to appear at DOMESTIC RELJ%TIONS HEARING RM DOMESTIC RELATIONS OFC, 13 N HANOVER ST, CARLISLE, PA. 17013-3014-13 before a heating officer of the Domestic Relations Section, on the DECEMBER 2, 2002 at 10: 3 om for a hearing. You are further required to bring to the heating: 1. a true copy of your most recent Federal Income Tax Return, including W-2s, as filed, 2. your pay stubs for the preceding six (6) months, 3. verification of child care expenses, and 4. proof of medical coverage which you may have, or may have available to 5. information relating to professional licenses 6. other: Form CM-509 Service Type M Worker ID 21302 IRIZARRY ¥. IRIZARRY PACSES Case Number: 271104765 If you fail to appear for the conference/hearing or to bring the required documents, the court may issue a warrant for your arrest or enter an order in your absence. If paternity is an issue, the court may enter an order establishing paternity. The appropriate court officer may enter an order against either party based upon the evidence presented without regard to which party initiated the support action. Date of Order: BY THE COURT: JUDGE YOU HAVE TI'W. RIGHT TO A LAWYER, WHO MAY Al'rEND THE HEARING AND REPRESENT YOU. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU MAY GET LEGAL HELP: CUMBERLAND CO BAR ASSOCIATION 2 LIBERTY AVE CARLISLE PA 17013-3308-02 (717) 249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of ctn, mERraU, m County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office at: (717} 24o-622s. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled hearing. Page 2 of 2 Form CM-509 Service Type M Worker ID 21302 In the Court of Common Pleas of CUMBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION MILDRED E. IRIZARRY Plaintiff VS. H~ERTO IRIZARRY Defendant ) Docket Number ) ) PACSES Case Number ) ) Other State ID Number 02-909 CIVIL 271104765 ORDER OF COURT You, MILDRED E. IRIZARRY 118 W HILLCREST DR, CARLISLE, PA. 17013-1215-18 plaintiff/defendant of are ordered to appeal: at DOMESTIC RELATIONS HEARING RM DOMESTIC RELATIONS OFC, 13 N HANOVER ST, CARLISLE, PA. 17013-3014-13 before a hearing officer of the Domestic Relations Section, on the DECEMEER 2, 2002 at 10:30AM forahearing. You are further required to bring to the hearing: 1. a tree copy of your most recent Federal Income Tax Return, including W-2s, as filed, 2. your pay stubs for the preceding six (6) months, 3. verification of child care expenses, and 4. proof of medical coverage which you may have, or may have available to you 5. information relating to professional licenses 6. other: Form CM-509 Service Type M Worker ID 213 02 IRIZARRY ¥. IRIZARRY PACSES Case Number: 271104765 If you fail to appear for the conference/hearing or to bring the required documents, the court may issue a warrant for your arrest or enter an order in your absence. If paternity is an issue, the court may enter an order establishing paternity. The appropriate court officer may enter an order against either party based upon the evidence presented without regard to which party initiated the support action. Date of Order: BY THE COURT: JUDGE YOU HAVE THE RIGHT TO A LAWYER, WHO MAY ATTEND TI-W~ HEARING AND REPRESENT YOU. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU MAY GET LEGAL HELP: CUMBERLAND CO BAR ASSOCIATION 2 LIBERTY AVE CARLISLE PA 17013-3308-02 (717) 249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of CUMBERraa-D County is required by law to comply with the Americans with Disabilities Act of 1990. For infommtion about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office at: (717) 240-6225 . All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled hearing. Page 2 of 2 Form CM-509 Service Type M Worker ID 21302 HUMBERTO IRIZARRY, Plaintiff V. MILDRED E. IRIZARRY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Defendant : NO. 02-909 CIVIL TERM IN RE: DEFENDANT'S PETITION FOR SPECIAL RELIEF ORDER OF COURT AND NOW, this 27th day of November, 2002, upon consideration of the attached letter fi.om Bradley L. Griffie, Esq., the hearing previously scheduled for December 5, 2002, is rescheduled to Monday, March 17, 2003, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Harold S. Irwin, III, Esq. Attorney for Plaintiff Bradley L. Griffie, Esq. Attorney for Defendant :rc Jiv/~/esley Ol~,SJ}., 12-02.-02. 11-~-~00~ 0~:08PM F~OM Gri~ie ~ Am~o¢imtem TO & socz q' s D©~ j,~ Nov~mbor 26~ 2002 ~/eslcy. Oler, ~r. Courthouse. ,I~: h'iz~rfy v. h'iz~y 240~462 P. 02 C~rUsi~.l)A iT913 C#.atbembur~ I'A (71~) 2~?. !~so. ~) TOT~IL P. 02 P :a~c 5¢ advised that I lmve accepted representation of Mi~ed Ifi~ on a rC~ ~m Mi, ~-~nn: 1.c~1 Sewie~s. M~. IH~, .ss I unde~mnd it, has a he~ sch~lled on ~' '~ Dee~ 5, 2~2, at 9:30 a,~. on a Petition for gpeciM ~ibf. I am in.~e'p~Oess ~f ~cc~ ~ file on ~. ~ bom ~or ~1, Jacquol~o V~, ~q~rc. I ho~ to ~vc ~ h~ n' ~ 1~. inm~y. .. ~. ex~iw ~:t$1~p~ne convmafion ~ ~pos~g roundel, ~mtd S;. ~ ~', ~q~,. who ~o~' Vi~ my r~uest' for a con--co, I beU~ve ~t sine of~:m~, if not all 0f~~ ?~, ~h~dd'~ ~le m ~ m~nlv~ through ~Rl~t With all o~lhi, in re{nd. 1 ~m*t'th ~ ~e he~ng for D~e~b~ 5, 2002, ~ a la~ ~te My ~ ~slst in h~ "a . [t,~t" : ' ' . .. -- ,. .. ,.. . __,... at ~sto'~" ' ' . . . _ . sc : ~ 'O~ a~enflon ts app~la~. '. : Cc: t l~old ~. ~in, 111, ~ (Via F~simle & U.S. ~1) . ' ~. ~o~el~ M~ V~ey, E~im (win ~ae~le ~ U.S= M~t). ~ ' ' : ~ .. wa ~ACSLmL~ 'Fax #: (?~7) HUMBERTO IRIZARRY, Plaintiff V. MILDRED E. IRIZARRY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-0909 CIVIL TERM IN RE: DEFENDANT'S PETITION FOR SPECIAL RELIEF ORDER OF COURT AND NOW, this 30th day of December 2002, upon consideration of the attached letter from Bradley L. Griffie, Esq., attorney for Defendant, the hearing previously scheduled in the above matter for March 17, 2003, is cancelled. BY THE COURT, ./ Harold S. Irwin, III, Esq. 35 East High Street Carlisle, PA 17013 Attorney for Plaintiff Bradley L. Griffie, Esq. 200 N. Hanover Street Carlisle, PA 17013 Attorney for Defendant j:~resley Ole~;~j~..;, c~ j. irc Bradley L. Griffie, Esquire Marylou Matas, Esquire Wendy J. F. Greila, Esquire Robin J. Goshorn Legal Assistant Rep~y to: Carlisle & .Ylssoc q s Attorneys and Counselors at La~ December 24, 2002 200 North Hanover Street Carlisle, PA 17013 (717) 243-sss1 38 North Main Street Chamb~rsburg, PA 17201 (717) 267-1350 (800) 347-~$2 Fax (717) 243-~63 The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Irizarry v. Irizarry No. 02-909 Civil Term Dear Judge Oler: Your calendar will reflect that a heating on a Petition for Special Relief filed by the Defendant, Mildred Irizarry, in the above captioned action has been scheduled for Monday, March 17, 2003, at 9:30 a.m. Please be advised that after extensive consultation with my client, we have chosen to withdraw the Petition for Special Relief and file the enclosed Praecipe doing so. Therefore, the hearing scheduled for March 17th will not be necessary. Should you wish to have me take any additional action in this regard, please feel free to contact me. Enclosure Cc: Mildred E. Irizarry Harold S. Irwin, III, Esquire yours, HUMBERTO IRIZARRY, Plaintiff Vo MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLANiD COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 02-909 CIVIL TERM : IN DIVORCE TO THE PROTHONOTARY: PRAECIPE ENTRY OF APPEARANCE Please enter my above-captioned matter. appearance on behalf of the Defendant, Mildred E. Irizarry, in the Respectfully submitted, 200 North Hanover Street Carlisle, PA 170113 (717) 243-5551 (800) 347-5552 HAROLD S. IRWIN, III, ESQUIRE ATTORNEY ID NO. 29920 35 EAST HIGH STREET CARLISLE PA 17013 (7t 7) 243-6090 ATTORNEY FOR PLAINTIFF HUMBERTO IRIZARRY, Plaintiff MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 02 - 0909 CIVIL TERM : IN DIVORCE PRAECIPE TO TRANSMIT RECORD To the Prothonotary: decree: Transmit the record, together with the following information, to the court for entry of a divorce 1. Ground for divorce: Irretrievable breakdown under Section 3301(c) of the Divorce Code. Date and manner of service of the complaint: On or about February 26, 2002, defendant was served with a copy of the divorce complaint. See Affidavit of Service filed on February 27, 2002. Complete either paragraph (a) or (b): (a) Date of execution of consent required by Section 3301(c) of the Divorce Code: By the plaintiff: N/A By the defendant: N/A (b)(1) Date of execution of the affidavit required by Section 3301(d) of the Divorce Code: February 22, 2002 by Plaintiff and March 8, 2002 by Defendant. (b)(2) Date of filing and service of the plaintiff's affidavit upon the defendant: February 26, 2002. NOTE: SEE ALSO AUGUST 19, 2002 ORDER OF JUDGE OLER BIFURCATING THIS DIVORCE AND PROVIDING THAT ON OR AFTER FEBRUARY 1, 2003, EITHER PARTY MAY FILE A PRAEClPE TO TRANSMIT THE RECORD WITH RESPECT TO ENTRY OF A DIVORCE DECREE. 4. Related claims pending: Various economic claims of the defendant are pending. February 1, 2003 Complete either (a) or (b): (a) Date and manner of service of the notice of intention to file praecipe to transmit record, a copy of which is attached: N/A (b) Date plaintiff's Waiver of Notice in Section 3301(c) divorce was filed with the Prothonotary: N/A Date defendant's Waiver of Notice in Section 3301© Divorce was filed with the Prothonotary: ~~ HAROLD S. IRWIN, III Attorney for Plaintiff ~/ IN THE COURT OF COMMON PLEAS OF CUMBERLAND STATE OF ~ COUNTY PENNA. ..~laintiff ............................................................. Versus MILDRED E. IRIZARRY, DECREE IN DIVORCE AND NOW, ..... ..../.c)..., .., it is ordered and decreed that ...... UUIAB. E..R.TP..][.R.I.Z..AR...R.Y ........................ plaintiff, and ................aI~.DRED. E .... IRIZA~Y ...................defendant, are divorced from the bonds of matrimony. The court retains jurisdiction of the following claims which have been raised of record in this action for which a final order has not yet been entered; ALL OUTSTANDING ECONOMIC CLAIMS RAISED IN THE PLEADINGS HUMBERTO IRIZARRY, Plaintiff Vo MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY : : CIVIL ACTION - LAW : : NO. 02-909 CIVIL TERM : IN DIVORCE : DR # 31969 : PACSES # 271104765 PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter my appearance in the above captioned action on behalf of Defendant, Mildred E. Irizaary. Date ~; ~efee: Earn tuire GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 HUMBERTO IRIZARRY, Plaintiff VS. MILDRED E. IRIZARRY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-909 CIVIL ACTION IN DIVORCE PETITION FOR CONTEMPT AND RULE TO SHOW CAUSE AND NOW, comes Petitioner, Mildred E. Irizarry, by and through her counsel of record, Bradley L. Griffie, Esquire, and the law firm of Griffie & Associates and Petitions the Court as follows: Petitioner is the above-named Defendant, Mildred E. Irizarry, an adult individual currently residing at 118 West Hillcrest Drive, Carlisle, Cumberland County, Pennsylvania. Respondent is the above-named Plaintiff, Humberto Irizarry, an adult individual currently residing at 6804 Kerrywood Circle, Cenprelvile, Virginia, 20121. o The parties are former husband and wife, having been divorced by Decree in Divorce entered on February 10, 2003, a copy of said Decree being attached hereto and incorporated herein by reference as Exhibit "A." The parties are subject to Separation Agreement dated October 27, 2000, a copy of which is attached hereto and incorporated herein by reference as Exhibit "B." 5. Paragraph 1 of the parties' Separation Agreement provides, in pertinent part, that: Each {party} shall be free from harassment, interference, molestation, authority and control, direct and indirect, by the other, as fully as if he or she were single and unmarried. Neither of the parties hereto shall interfere with the other in his or her respective liberty of action or conduct, and each agrees that the other, at any and all times, may reside and be in such place and with such relatives, friends and acquaintances as he or she may choose. Each party agrees that they will not file for a divorce prior to January 1, 2002." Despite the terms of paragraph 1 of the parties' Agreement, Respondent has on numerous occasions harassed Petitioner by telephone and in person, interfering with her quiet enjoyment of her home, which she has relained pursuant to the Agreement, and otherwise interfering with the quiet enjoyment of her day-to-day life. All such conduct on the part of Respondent is in direct and indirect violation of the parties' Separation Agreement. Paragraph 2 of the parties' Separation Agreement provides, in pertinent part, that: "The Husband and Wife were the owners of premises known as 118 West Hillcrest Drive, Carlisle, Pennsylvania, 17013 (hereinafter referred to as "House"). Contemporaneously with the execution of this Agreement, the Husband shall convey the House to the Wife, wlho shall he the sole owner thereof. All expenses to include, but not be limited to, the real estate taxes, assessments, water charges and sewer rents, fire insurance premiums, fuel, utilities and mortgage debt service payments for the House, shall be paid by the Wife. The Wife shall also be responsible for all repairs." Despite Respondent having conveyed his interest in the aforementioned real estate to Wife pursuant to terms of the Agreement, he has failed and refused, after repeated requests, to execute a Deed conveying all of his. right, title, and interest in the aforesaid property to Petitioner to bring him into compliance with the parties' Separation Agreement. 10. All such conduct or failure to act on part of the Respondent is in direct or indirect violation of the parties' Separation Agreement. 11. Paragraph 4 of the parties' Separation Agreement provides, in pertinent part, that: "The parties agree that their automobile shall be disposed of as follows: The Husband shall be the sole owner of the 2000 Toyota Camry, ID #HTIBG22KOYU692582. The Wife shall be the sole owner of the 1995 Plymouth Voyager, ID #2P4GH45ROSR153099. The parties' son, HUMBERTO ANGEL IRIZARRY, shall become the owner of the 1996 Toyota Corolla, ID #2T1BAO2EOTC143819. Each party shall be responsible for their own expenses relating to their vehicle, to include liens, maintenance, repairs and insurance." 12. Despite repeated requests on behalf of Petitioner to secure arrangements for the transfer of the title to Petitioner's 1995 Plymouth Voyager to her name alone and for the cooperation executing the title to the 1996 Toyota Corolla into the name of the parties' son, Humberto Angel Irizarry, Respondent has failed and refused to cooperate in the transfer of the titles to these vehicles. 13. Respondent's conduct, or refusal to act in this regard, is in direct and indirect violation of the parties' Separation Agreement. 14. Paragraph 5 of the parties' Separation Agreement provides, in pertinent part, that: "The parties heretofore have incurred certain bills, debts and obligations described in Exhibit C annexed hereto. The Husband agrees to pay the items designated in Exhibit C as "Husband's Obligations" as the same become due; and the Wife agrees to pay the items designated in Exhibit C as "Wife's Obligations" as the same become due. Each party represents and warrants that, except as set forth in Exhibit C, he or she, as the case may be, has not incurred or contracted any debts or obligations for which the other or any property of the other may be liable, either individually or jointly, Each party agrees that he or she hereafter shall not incur any debts or obligations for which the other may be liable. Each party shall indemnify and hold the other harmless from and against any costs and expenses resulting from a breach or violation by such party of any representation, warranty or covenant contained in this Article 5." 15. Exhibit C of the parties' Separation Agreement as referenced in Paragraph 5, provides that Respondent shall be responsible for payment of the Dish Network bill in the mount of $42.37 per month "until the final divorce.." 16. From Mamh 2002 through the date of the parties' Decree in Divorce, February 10, 2003, Respondent failed and refused to make payment of the Dish Network bill as was his obligation of the Agreement. 17. Respondent's conduct in failing to pay the Dish Network bill is in direct violation of the parties' Separation Agreement. 18. Paragraph 10 of the parties' Separation Agreement provides, in pertinent part, that: "The Husband shall pay all of all reasonable medical, dental and orthodontic expenses of the Children (other than elective or cosmetic surgery or psychiatric or psychological expenses) to the extent not paid by insurance." 19. Contrary to the provisions of paragraph 10 as referenced above, Respondent has indicated a refusal to compensate Petitioner for the Children's uninsured medical expenses, which refusal has been made despite repeated requests by Petitioner, and Petitioner's legal counsel. 20. All such conduct on behalf of Respondent, or his refusal to act, is in direct or indirect violation of the parties' Separation Agreement. 21. Paragraph 11 of the parties' Separation Agreement provides, in pertinent part, that: "The Husband agrees to pay to the Wife, promptly after receipt, a share of all payments hereafter received by Husband under the pension plan of United States Army equal to 50 percent of the amount received multiplied by a fraction, the numerator of which shall be the number of years (or fraction thereof) of the marriage of the Husband and Wife which overlapped active duty service, and the denominator of which shall be the number of years of active duty of the Husband in the United States Army. The Husband will ensure that the Wife is listed as the recipient of the Survivor Benefit Plan (SBP). Each party shall pay one-half (50%) of the Survival Benefit Plan premium." 22. Despite Respondent's agreement to provide distribution of 50% of the funds received from the United States Army pension, he has failed and refused to do so. 23. Respondent's failure to provide payment to Petitioner pursuant to the terms of paragraph 11 is in direct violation of the parties' Separation Agreement. 24. The within Petition and prior efforts made by Petitioner directly and through counsel to secure Respondent's cooperation in abiding by tine terms of the parties' Separation Agreement have all been made necessary by Respondent's failure and refusal to comply with the terms of the parties' Separation Agreement. 25. Respondent's failure to comply with the terms of the Separation Agreement is dilatory, vexatious, and obdurate behavior for which Respondent should be obligated to pay Petitioner for the legal representation she was obligated to secure to pursue the within matter. WHEREFORE, Petitioner requests your Honorable Court to enter a Rule upon the Respondent to show cause, if any he has, as to: Date Why he should not be found in contempt for his violation of the parties' Separation Agreement; Why he should not be obligated to compensate Petitioner's legal counsel for services incurred in pursuing this matter; Why he should not be obligated to meet each and every term and obligation of the parties' Separation Agreement; and Why such other appropriate relief as the Court deems just and proper should not be entered against him. Respectfully submitted, J B~:~riff~Esquire ~ey for~fendant/Petitioner GRIFFi~ & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (80,0) 347-5552 VERIFICATION I verify that the statements made in the foregoing document are tree and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsifications to authorities. t~I~,I~RED E. IRIZARRS(.,)Defe d~t~etitioner ~! IN THE COURT OF COMMON PLEAS OF CUMBERLAND STATE OF COUNTY PENNA. HUMBERTO IRIZARRY, ................. Plaintiff .............. MILDRED E. IRIZARRY, i .Defendant ........ i ["~().9.2.%999~..~I~ZL..~R~) DECREE IN DIVORCE AND NOW ......... /¢..., 4-9'7. ,--'7.., it is ordered and decreed that ...... BgM, B.g .R.Tp..];R!.S..Agg¥ ........................ plaintiff, and ........... MILDRED. E.... IRIZAt~,Tf ................... defendant, are divorced from the bonds of matrimony. The court retains jurisdiction of the following claims which have been raised of record in this action for which a final order has not yet been entered: ALL OUTSTANDING ECONOMIC CLAIMS RAISED IN THE PLEADINGS --EXHIBIT "A"-- bet~veen HUMBERT0 IRIZARRY and MILDRED ENID IRIZARRY 1 Separate Residences 2 The Marital Residence 3 Other Real Property. 4 Personal Property. 5 Debts 6 lviaintenance and Support 7 Custody and Visitation 8 Child. Support 9 Income Taxes i0 Insurance i 1 Pension Plan 12 Claims in Estates 13 General Claims 14 Legal Representation 15 Full Disclosure 16 Merger and Survival 1'7 Notices 18 General Provisions EXHIBIT A - Real Property. EA2qIBIT B - Personal Proper'9,' EXHIBIT C - Marital Debts EXHIBIT D - Visitation Rights --EXHIBIT "B"-- SEPARATION AGREEMENT AGREEMENT. made this~day of ~"~'4~''7~&L~, 2000. between HUIvl]BERTO I]:HZARRY. residing at Building 472l. Apt 105. Wigle Court. Fort Meade. Maryland 20755 (hereinafter referred to as the "Husband"). and MILDRED ENID IRiZARRY. residing at 118 West Hillerest Drive, C~lisle, Pennsylvania 1701.3 (hereinafter referred to as the "Wife"). WlTNESSETFI: WHEREAS. the parties hereto were duly mnrried in A~tadJ. lla. Puerto Rico. on December 27. l')8 l: and WHEREAS. there are t/tree children of the marriage, namely HUlvfBERTO ANGEL 1.RtZARRY born en December l I. 1983. JOSE NOEL IP._IZARRY born on August l0 1986, ,'md LUIS ANDRE IP,.IZARRY born on September 5, 1987 (hereinnfler referred to as the "Children" or individually as a "Child"): and there are no additional or expectecl issue of the marriage: and WHEREAS. tile parties, in consequence of disputes and irreconcilable differences, separated on or about September I. 1999. and are now living separate and apart from each other, and have voluntarily and mutually agreed to continne to live separate and apart: and WHEREAS. each part5.' has been advised of their fights to obt,aJ.n full disclosure of the other pan.x's financial condition, inclading incmne, expenses, assets, liabilities and assets transferred, and have obtained full anti satisfacto~' disclosure of such; and WHEREAS. the parties desire to resolve the issues of cr~tody, visitation and support and to settle their financial, property, and other fights and obligations arising out of the marriage and otherwise. NOW, THEREFORE. in consideration of the mutual promises and agreements herein contained. tile parties hereto agree as follows: I. Separate Residences. The Husband and Wife shall comiuue to live separate and apart from each odler Each ma~, reside from [tine [o time at sucl: place or places as each may determine in his or her sole Each shall be free from hm-assment, interference, molestation, authority, and control, direct and redirect, by the other, as fully as if he or she were single and unmamed. NeitEer of the parties hereto shall interfere with the other in his or her respective libem,.' of action or conduct, and each agrees that the other, at any and all times, may reside arid be in such place and xxith such relatives, friends and acquaintances as Ire or she may choose. Each parE,.' agrees that they will not file for a divorce prior to JanuaO' 1. 2002. 2. The Marital Residence. The Husband and Wife were the owners of premises known as 118 West Hillerest Drive. Carlisle. Pennsylvania 17013 (hereinafter referred to as the "House"). Contemporaneously xxith the execution of this Agreement. the Husband shall convey the House to the Wife. who shall be the sole owner rents, fire insurauce premiums, fuel. utilities and mortgage debt service payments for the House. shall be paid by the Wife. The Wife shall also be responsible for all repairs. 3. Other Real Propert.v. The parties agree that the real properb_' listed in Exhibit A annexed, bcrcto shall belong to tile pames indicated m Exhibit A. subject to any remus or conditioI',s set forth therein. 4. Persnnal Propert.v. The parties acknowledge that they previously haxe made a division an4 settlement of their personal proper'o.' and personal effects, and that each is and shall be the owner of all personal property now in his or her possession, except as provided in Exhibit B armexed hereto. The parties agree that all [uruimre arid household furnishings located in the House shall be the exclusive propertS, of the Wife. except for any properc::' of the Husband set forth in Exhibit B (which propem,.' the Husband promptly shall remove from the House). The parties agree that their aatonmbiles shall be disposed of as foilows: T?~e Husband shall be the sole owner of the 2000 Toyota Carny,.'. ID#HTIBG22KOYU692582. The Wife shall be the sole owner of the 1995 Plymouth Voyager, [D #2P4GH45ROSRI53099. The par'ties' son, HUIvEBERTO ANGEL B:LIZARRY, shall become the owner of the 1996 Toyota Corolla. ID#2TIBAO2EOTCi43819. Each party shall be responsible for their ov,'n expenses relating Each party slutll owu. have and enjoy, free of uny right or claim of the ether party, all property hcrcal-lcr acquired b.~ such part)' 5. Responsibility For Debts. The parties heretofore have incurred certain bills, debts rind obligations described in Exhibit C annexed hereto. The Husband agrees to pay rite items designated in Exhibit C as "Husband's Obligations" as the same become due: and the Wife agrees to pay the items designated in Exhibit C as "Wit'e's Obligations" as the same become due. Each pasty represents and warrants that, except as set forth in Exhibit C. he or she. as the case may be. has not incurred or contracted any debts or obligations for which the other or any properD, r)f tile other may be liable, either individually or jointly. Each paiD.' agrees that he or she hereafter shall not recur an3 debts or obligatioas [or which the other may be liable. Each p,'u-~.' shall indemnify, and hold the other harmless from and against any costs and expenses resulting from a breaoh or violation by such part).' of any representation, warranP,_' or covenant contained iB this Article 5. 6. Maintenance and Suppor!.. The Husband agrees to pay to the Wife. as and for her mainteaance and snpport. Six Hundred and Fi-fro_' Dollars ($650.00) per month payable in equal monthly instathneots connnencing on tile first day of the month following the date of this Agreement, and continuing on the first day of each succeeding month, until the earlier of the Husband's retirement from active milita~ sec'ice (no earlier than Januar5 l. 2002). the death of either pan) or the remarriage of the Wife. The Wife represents that the aforesaid payments arc and shall be snfficient to provide for her proper maintenance and support in accordance with the standard of living she now enjoys. When the Husband retires from the United States Army. the Wife shall have the optioo to move back to Puerto Rico and have her property shipped at the militar?"s expense pursuant to the Husband's militax-y orders. 7. Custod', and Visitation. The Husband and Wife agree that the castody, supeD'ision, care and control of the Children. shall be he d joindv by the Husband and Wife xxith the Wife to have physical custod? subject to the visitation rights of the Husband hereinafter set forth. The Husband shall have the rights of visitation with the Children set forth in Exhibit D annexed hereto. The Wife agrees to be reasonable in accmnmodating =~ny desires of the Husband for additional ~isitation with the Children or any express ~ishes of the Children to visit with the Husband- Neither p lrt~. shall do anything which nay estrange tile Childrea from tile other party, or injure tile opinion ol' thc Children :Is to tile other part~,, or hamper tile free and natural development of the love :md respect of thc Children l'or tile other party. Each party agrees that if either of them has any knowledge of any illness, accident or other circnmstances seriously alTectmg the health or general welfare of the Children. he or she promptly shall notify, the other of such circumstances. Each party, shall be entitled to complete, detailed information from any doctor. psschologist, psychiatrist, consultant, or specialist attending any of the Children for any reason, or any teacher or school x~ i ch any of the Children attends, and each party, shall furnish to the other copies of all reports of any such person or entity. The parties agree to consult with each other with respect to the education, religious training. health. ~xelfare and other matters of similar importance affecting the Chilckren. whose well-being, education and dcx clopmcnt at all times shall be the paramount consideration of the parties. The Children may not be adopted by any person without the prior written consent of the Husband :mol Wife. nor shall the Wife have tim right, at any time. to appoint a =m. tardian of the Children other than the Husband. The Children shall continue to be 'known under the Husband's surname, and shall not use or assume any oll~cr snrname, notwithstanding an.', remarriage of the Wife. Neither parC. shall initiate or permit the designation of "t'ather" or "mother" or their equivalents to be used by the Children with reference to any person other than the parties. Tile failure by the Husband to exercise any visitation fights provided herein shall not be deemed a ~aiver of an_', such rights. Nothing herein shall he construed as an obligation or du~' on the part of the Husband to ~isit thc Children at an',' particular time. The visitation rights provided herein shall be entirel? optional for the Husband. w lo may elect on any occasion or for any reason not to utilize tile visitation rights without waiving such rights in the future. 8. Child Support. The Husband shall pay to the Wile. its and for the support and maintenance of cac~h minor Child. the sum of Four Hundred Dollars ($400.00) per month (the total amount per month shall for all die children shall not exceed the Basic Allowance for Quarters at the "with dependent" rate), commencing on the irst dav of the month following the date of this Agreement. and continuing on the first day of each succeeding month until thc occurrence of the earlier of the following events: (a) tile attamnmnt of the age of 18 years (23 years~ if Iht Ciliid corers college by October [otloxxiug attaining tile age of 18 >ears and there:filer continues to attend college) by or earlier emancipation of the Child: (b) tile marriage of the CMld: (c) entry, by such Child in the mititao.' service of the United States: (d3 the engaging by such Child in full-time employment (but not employment limited to vacation and summer periods): (e) permanent residence away from the residence of the Wife (other th,m residence at a scbooI, camp or college): (f) the death of the Husband: or (g) the death of such Child. In addition to the aforesaid suppor~ payments, the Husbrmd shall pay the reasonable expenses of the undergradaate college education of each Child. including without limitatiou tuition, application fees. the costs of books and supplies, room and board, and incidental expenses normally incurred in connection with such education. Thc Husband. hox~e,,'er, shall not be obligated to pay more than the amount remaining ,-'flier the children have applied [or grants, loans, scbolarships, etc. The Husband sball not be obligated to make any other child support and maintenance payments. Thc Wife accepts these provisions in full ,and final settlement and satisfaction, and hereto releases the Husband. absohilcly and fore, er. frmn any claims or demands, for child support and maintenance, except as provided herein. ~.n~, pa> mants ,,ohintaril? made by the Husband to the Wife for child support: in excess of the mnounts provided for herein sllall not alter tile obligations of Husband hereunder nor create a precedent. Thc Husband shall be entitled to claim exemptions for the Children on his income tax returns. The Wife agrees not to claim exemptions for the Children on her income tax returns, and she releases her right to do so The Wife promptly shall execute and deliver to the Husband IRS Form 8332 or its equivalent, and the Husband shall be entitled to attach said form to his income tax returns. The Wife :;hall take such other actions as may be necessaP,.' or appropriate to enable the Husband to claim exemptions for the Children. 9. lncome Taxes- The pan. les have filed certain joint Federal State and local income tax returns. Each party, represents to the other that to the best of his or her knowledge and belief all income taxes shown to be due on such returns have been duly paid, and that no interest or penalty, is due with respect thereto. The parties shall execute and file joiut tax returns for the calendar year 2000. and for any other years in which they are eligible to do so Any refund payable with respect to any joint tax return, now or hereafter filed, shall be paid to the Husband and Wife in proportion to their respective incomes for the tax year, and the Husband and Wife shall endorse refund checks and tukc such other actians as may be neccssau or appropriate to effectuate such payment. If there is amy delicicnc> or tax liability assessed on any jOilltly filed tax return, sucl~ deficiency or tm': liabilip', with any interest or penalties thereon, shall be paid by the HusNmd and Wife in proportion to their respective incomes for the tax yeztr, unless and to the extent that the same has been caused by the failure or neglect of the other party. The parties shall cooperate in the preparation of any tax returns to be jointly filed, so that riley may be reviewed at a suitable time before the due date thereof. If there is an audit or examination of any joint tax return. each pa~' shall furnish such records, documents and other information as may be reasonably requested ii1 couoccdon therewith. 10. Insurance. The parties represent and warrant that there is presently in full force and effect ~m insurance policy on his/her life in tile face amount of $~00.000.00. The par~ies agree that at all times after the date hereof he/she shall maiotain in full force and effect a life insurance polic$.' on Ns life/her in n face amount of S lll~kll0tl t)0 for the benefit of ~he other party_', who shall be the sole and irrevocable beneficiap thereof, until child support is no longer an obligation. All dividends on said policies shall belong exclusively to the HusbandfWife. who shall be entitled either to receive the dividends or apply the same in reduction of premiums of their respective policies. In adddian, the Husband agrees to ~naintain in full force and effect TRIC.~KE (or an equivalent msuranceL dental insnrance and major medical insurance covering the Wi!~'e and the Children at all times. The Husband sllall not be required to maintain such insurance if and to the extent such coverage is provided by an employer of tile Wile. The Husband shall pal',' all of all reasonable medical, dental and orthodontic expenses of the Children (other than elective or cosmetic surgeo' or psychiatric or psy. chological expenses) to the extent not paid by such insurance. The Wife shall be responsible for her own unpaid expenses. Each party.' shi~!l cooperate with ~he other in the filing of any claims and in securing reimbursement for any e.kpensc paid by the other qualifying for reimbursement under such insurance. The obligation of the Husband to maintain insurance pursuant to the provisions of tfus Article 10 slmll terminate upon the occurrence of an.'.' event which results in the termination of the Husband's support obJigaltons cootainecl iu this Agreemcut. Thereafter. each party, shall be entitled to maintaio such insurance as each m his or her discretton lUay elect, without further oNigntion to tile other pursuaot to this Article 10 1 l. Pensiun Pla~. The Husband agrees to pay to the Wife. prmnpdy after receipt, a share of all payments hereal-ter received by tile Husband under the pension plan of United States .,M-my equal to 50 percent of tile anlount received multiplied by a fraction, the numerator of which shall be the number of years (or fraction Ihereo~ of tile marriage of the Husband and Wife which overlapped active duty. ser-,'ice, and the denominator of ~thich shall be the oumber of years of acti;e duty of the Husband in tile United States Ann.'.'. Tile Husband will ensure that tile Wife is listed as tile recipient of tile Survivor Benefit Plan (SBP). Each pan5. shall pay one-hal£ (51/"/,,) of tile Sur~'i~al Benefit Plan premium 12, ~lutual Release and Discharge of Claims in Estnt~:. Each party shall have the right to dispose of tile property of such pa~' by iast will and testament in such manner as such pa~' may deem proper in the sole cliscretion of such part>', with the same force and effect as if tile other pa:'t5 had died. Each pan.',', individually and lbr his or her heirs, executors, administrators, successors and assigns, bereby waives, releases and relioquishes an3 and nil claims, rights or interests as a surviving spouse in or to any propert/:', real or personal, xvhich tile other party o~us or possesses at death, or to x~l,_ich the other parD.' or his or her estate may be entitled. Each part>_' expressly wai;es all rights wbicl~ he or she no,,', or may hereafter have pursuant to an5' provisions of tile laws of an_',' Stale or countO' which may have jurisdiction over the estate of either part2:' hereto on his or her death, as now or Itcrea£ter m effect, to elect to take in contra'.ention of tile tertns of an.', will of the other partS, whether now or I~creafter executed. Each par'c, recognizes that ti,is waiver includes rights that he or sl~e othenvise might have or acquire under 20 Pennsylvania Statutes Section 2203 et seq,. any an~-endmertt thereof or an3 successor statute. 13. ~lutual Release of General Claim~. Except as expressly provided il/ this Agreement. each par~y hereby waives, releases, renounces and forever discharges all rights of dower, curtesy, statutory_ election and all other similar rights under the laws of Pennsylvania or any other State, and all other claims, causes of action. rigllts or demands, known or unknown, past. present or future, which he or she now or hereafter has. might have, or could claim to have against the other or any present or future prope~? of the other by reason of the marital relationship or any matter, thing or cause whatsoever. Nothing in this Ar:icle 13 shall be deemed to prevent either '7 part.,, ['rom enforcing [tie terms of this Agreement or [ronl asserting ai',y rights cr claims expressly rescrYed to eilhcr part? m i[lis Agrccmcm Nothing herein shall lmp~dr or waive any cause of action which eid~er party, may ha,,e against d~e other for a dissolution of the marriage or any defenses either may have to any such cause of action. The parties, by execution of fids Agreement. have provided f~r a fair ~md equitable distribution of all propert? belonging to the parties. Any reference or allocation with regard to property., whether real or personal. is made for the parpose of settling all claims to such property by the parties and for tile purpose of effectuating an equitable distribution of all properE,' between tl~e parties. The distribution of properrS' provided for herein shall be bioding oll both parties, now and in the future. Each party, hereby waives, releases, renounces and forever discharges all claims or rights to an.',' propen}, owned by the other or allocated to the other under this Agreement. and :ill claims or rights for maintenance, support, counsel fees. suit money, or any similar claim, except as expressly pro,.ided hereto. 14. Legal Representation. In connection with this Agreement. the Husband has had the benefit or' thc advice of Office of the St~dT Judge Adx ocate, independent counsel of his own selection. The Wife has been atlvisud to select and obtaio counsel to represent her in this matter. The Wife has had the benefit of the advice of an attorney located at Carlisle Barracks. Pennsylvania. Each part} ackuov, ledges that all of the ~natters embodied in this Agreement. including all terms. coxcnants, conditions, waivers, releases and other provisions contained herein, are fully understood by him or her: that lie or she is entering into this Agreement freely, voluntarily and after due consideration of the consequences of doing so: and that this Agreement is valid and binding upon him or her. 15. Full Disclosure. Each party.' has ma. de independent inqniry into the complete financial circumstances of the other, and acknowledges that lie or she is fully ird'ormed of the income, assets and financial prospects of the oilier, and is satisfied that full disclosure has been made. The Social Securi~ Number of the Husband is 584-35-1584. and the Social Securi .ty Number of the Wife is 584-11- 293~1. 16. Merger and Sur-,'i','al. In the event that either party obtains a judgment, order or decree of divorce against the otber, the provisions of this Agreement expressly shall be incorporated in the text thereof with 8 such spcci ficity as the corm shall permd and b:. re/'crence as may be appropriate under law and the rules of the court. All nflhc prov~stons ol-this Agreement shall be incorporated in any judgment or decree of divorce Tl~s Agreement shall sup.'ive, and not be merged in. uny judgment, decree or order, and the p,'mSes hereto shrill remain bound to the performance of riffs Agreement in accordance with the terms hereof, 17. Notices. Any notice, demand or other communicaticn required or permitted under th. is Agreement shall be in writing and shall be delivered by hand or by Federal Express courier or by certified or registered mail. return receipt requested, with postage prepaid, to the pm-ties at their addresses first above written or at such other addresses as they may designate by notice hereunder. 18. General Provisions. This Agreement is entire and coml:,lete and embodies all underst,'mdings and agreem~xnts between the parties. No representation, warranty., agreement or undertaking of any kind or nature tx:is been made to either part5' to induce the making of this Agreement. except as is expressly set forth herein. The parties acknm',ledge that there is no other agreement, oral or written, existing between then'.. No oral statement or prior written matter ootside of this Agreement shall have any force or effect. This Agreement shall not be amended, modified, discharg:d or terminated except by a writing cxccntcd and acknowledged by the part>.' sought to be bound. Any waiver by either part>_ of,any provision of this Agreement. or of an? right or option hereby, shall not be deemed a continuing waix'er and shall not pre',ent such part}, l'rom thereai-mr insisting upon the strict performance or enforcement of such provision, right or option. The parties agree that each of them. upon request of the otker paW,_' or the legal representati,,es of thc other pan],, shall execute and deliver such other and further instruments as may be necessan_ or desirable for the purpose of gi,.ing h~ll force and effect to the provisions of this Agreement. without charge therefor. Each par'q,_ shall noti.fy the other, by registered or certified mail. of any change of address or tclcphone number within five days of such change. This Agreement and all fights and obligations of the parties hereunder shall be construed according to the laws of the Commonwealth of Pennsylvania. If any provision of this Agreement should be held to be invalid or unenforceable under the laws of any State. country, or other jurisdiction, the remainder of this Agreement shall continue in full force and effect. This Agreeinent shall be binding upon the parties hereto, and their respecti'~e heirs, executors. ndminisIra[ors, succcs$ors and 3S$igll$. abo~e written. IN WITNESS WHEREOF. the parties hereto have executed this Agreement on the date first --~L~DRED ENID L~tZARRY ',,_~ --..3 10 STATE OF MARYLAND. COUNTY OF ANNE ARIJNDEL, ss. On this ~ ?day ofc(~t'/-t~ · 2000. before me. the undersigned officer, personally appeared HUMBERTO [PdZAJLRY. known to me (or satisfactorily proven) to be the person whose name is subscribed to the wilhio agrecmeot, and acknowledged Ihat he executed the same for the uses and purposes therein contained. IN WITNESS WI-[EREOF I hereunto set my hand and official seal. Notary Public Mv commissir}n ex~ires on .~// , _~ ~c~ COMMONWEALTH OF PENNSYLVANIA. COUNTY OF CUMBERL3,ND · ss. On this 1 5 day of Nov emb e r . 2000. before me. the undersigned officer, personall? appeared MILDRED ENID IRIZ,4Y, RY. l~nov,'n to me (or sat sfactorilv proven) to be the person wbose name is subscribed to thc xx ithm agreemeut, and acknowledged that she executed the same for the uses and purposes therein contained. IN WIT[XfESS WI-{EREOF I ~ereunto set mv band and official seal. EXHIBIT A Disposition Of Other Real Proper-tv The parties jointly own a building lot in Bario Camaseye Road 467. Lot//2 (878.47 SM). Aguadilla. Puerto Palco. Effective with the signing of this Agreement. Wife shall, as soon as possible, transfer by deed, all right title mad interest in and to the property, to the Husband. Thereafter. the Husband shall be responsible for all expenses relating thcrcto. EXHIBIT B Disposition Of Personal Property HUSB At"fD'S PROPERTY: Thc Husband shall rctain the Fort Bragg Federal Credit Union checking accoant and savings account, consisting of Account #0584-35-1584. Liberty Account #2 and Shares Account/41.. Ann Cox Painting Tools FrooT.or. pool tabtc and la'~ n tractor stay x~ith the House. WIFE'S ?ROPERTY: The Wife shall retain the Banco Popular account /4481-06.~8-. and Members 1*~ FCU account #1 ~0~ 13000. EXI-I[B IT C Marital Debts.' HUSBAND'S OBLIGATIONS: All credit cards issued jointly will be cancelled and/or destroyed at the time this Agree~nent is executed. Dish Network bill. $42.37 until the final divorce. AOL Account. $21.05 until a free interoet ser,.'ice is established. Orthodontic (Humber to Angel), $76 with a balance of $2.190 Insnrauce' ?remimn Sun Set Life. $45 WIFE'S OBLIGATIONS: All utilit) b~lls at 11.8 West Hillerest Drive Wells Fargo Home Mortgage. $78,464 Tcleplmne bill I7 l 1-252-8593) EXHIBIT D Visitation Right~ The Husband is entitled to reasonable visitations with reasonable notice dial least 24 hours in advance. [n addition. the Husband is entitled to the following visitations: Weekends: On eve~ other weekend from pick-up at 6 p.m. Friday until return at 6 p~m. Sunday. Summer: For two weeks, with notice by Husband to Wile no later titan April I o[ each year as to when summer x ~sitntion wilI be Mother'sFF l her's Day: On Mot let's Day ;;Sth tile Mother attd on Father's Day with tile Father. regardless of other sclleduled visitation. Other: As agreed b? tile Wife. Tile Hosband shall be responsible for an related transportation expenses relating to the visitations. HUMBERTO IRIZARRY, Plaintiff VS. MILDRED E. IRIZARRY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 02-909 CIVIL ACTION : IN DIVORCE CERTIFICATE OF SERVICE I, Bradley L. Griffie, Esquire, hereby certify that I did, the ~_~day of d ~a,~tt' , 2003, cause a copy of Defendant/Petitioner's Petition for Rule to Show Cause to be served upon Plaintiff's attorney of record by facsimile and first class mail, postage prepaid at the following addresses: Harold S. Irwin, III, Esquire 35 East High Street Suites 201 & 202 Carlisle, PA 17013 DATE: 200 ~.~ri~, Esquire ,for/Defendant/Petitioner L~& ASSOCIATES th. Hanover Street Carlisle, PA 17013 (717)243-5551 (800)347-5552 HUMBERTO IRIZARRY, Plaintiff VS. MILDRED E. IRIZARRY, Defendant : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 02-909 CIVIL ACTION : 1N DIVORCE ORDER OF COURT AND RULE TO SHOW CAUSE ANDNOW, this!~, dayof ~I-] ,2003, upon presentation and consideration of the within Petition, a RULE IS HEREBY ISSUED upon Respondent, Humberto Irizan'y, to show cause, if any he has, as to why he should not be fi>und in contempt of the parties' Separation Agreement dated October 27, 2003, and, further, why he should not be obligated to pay legal fees for Respondent's legal counsel, why he should not be obligated to comply with the terms of the parties' Separation Agreement, and why such additional relief as the Court deems appropriate should not be granted. Rule is returnable by the filing of a written Answer within twenty (20) days of service. Upon the filing of a written Answer, a hearing shall be held on ~/4,a/~ of ~g~.~, 2003, at ~:00 _p.m. in Courtroom # [ of the Cumberland County Courthouse, Carlisle, Pennsylvania. Service is to be made by first-class mail, postage pre-paid upon counsel of record for Respondent. -z~d opo. D ~'~;I) e~:Jeq-t''. By the Court, HUMBERTO IRIZARRY, Plaintiff MILDRED E. IRIZARRY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 02 - 0909 CIVIL TERM : IN DIVORCE NOTICE TO PLEAD To; Bradley A. Griffie, Esquire Griffie & Associates 200 North Hanover Street Carlisle, PA 17013 You are hereby notified to file a written response to the New Matter contained herein within (20) days of service or judgment may be entered against you. July /'~ , 2003' HAROLD S IRWIN, III Attorney for defendant 35 East High Street Carlisle, PA 17013 (717) 243-6090 Supreme Court ID No. 29920 HUMBERTO IRIZARRY, Plaintiff MILDRED E. IRIZARRY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02 - 0909 CIVIL TERM IN DIVORCE ANSWER TO PETITION FOR RULE TO SHOW CAUSE NOW comes Harold S. Irwin, III, Esquire, attorney for defendant, and responds to this petition for a rule to show cause, representing as follows: 1. The averments of paragraph one of the petition are admitted. 2. The averments of paragraph two of the petition are admitted. 3. The averments of paragraph 'three of the petition are admitted. 4. The averments of paragraph four of the petition are admitted. 5. The averments of paragraph five of the petition are admitted. 6. The averments of paragraph six of the petition are specifically denied. On the contrary, respondent has done nothing which violates paragraph one of the parties' separation agreement. By way of further response, however, petitioner has substantially ignored and failed to abide by many all of the terms of this agreement to the personal and financial detriment of the respondent, as further set forth in respondent's new matter below. In addition, on May 17, 2003, when respondent came to pick up the parties' children for a partial custody visit, petitioner put her fist through the front door window of her home, causing cuts to respondent's hand, and shouting profanities at respondent. As the result of this incident, the police were called and subsequently charged petitioner with harassment for which she was fined $200.00. 7. The averments of paragraph seven of the petition are specifically denied. On the contrary, respondent has done nothing which violates this paragraph of the parties' separation agreement. By way of further response, however, petitioner has substantially ignored and failed to abide by many of the terms of this agreement to the personal and financial detriment of the respondent, as further set forth in respondent's new matter below. 8. The averments of paragraph eight of the petition are admitted 9. The averments of paragraph nine of the petition are specifically denied. Furthermore, such averments, whether stated by petitioner or paraphrased by petitioner's counsel, are outright and malicious misrepresentations of the truth. To the contrary, respondent has remained ready and willing to execute a deed to the former marital residence upon presentation of a deed to him for his signature. By way of further response, petitioner has substantially ignored and failed to abide by many of the terms of this agreement, including her obligation to transfer to respondent certain real property located in Puerto Rico and owned by the parties, to the personal and financial detriment of the respondent, as further set forth in respondent's new matter below. 10. The averments of paragraph ten of the petition are specifically denied. On the contrary, respondent has done nothing which violates this paragraph of the parties' separation agreement. By way of further response, however, petitioner has substantially ignored and failed to abide by many of the terms of this agreement to the personal and financial detriment of the respondent, as further set forth in respondent's new matter below. 11. The averments of paragraph eleven of the petition are admitted. 12. The averments of paragraph twelve of the petition are specifically denied. Furthermore, such averments, whether stated by petitioner or paraphrased by petitioner's counsel, are outdght and malicious misrepresentations of the truth. To the contrary, respondent has remained ready and willing to cooperate in the transfer of said vehicles as provided in the agreement. By way of further response, however, petitioner has substantially ignored and failed to abide by many of the terms of this agreement to the personal and financial detriment of the respondent, as further set forth in respondent's new matter below. 13. The averments of paragraph thirteen of the petition are specifically denied. On the contrary, respondent has done nothing which violates this paragraph of the parties' separation agreement. By way of further response, however, petitioner has substantially ignored and failed to abide by many of the terms of this agreement to the personal and financial detriment of the resPondent, as further set forth in respondent's new matter below. 14. The averments of paragraph fourteen of the petition are admitted. 15. The averments of paragraph fifteen of the petition are admitted. 16. The averments of paragraph sixteen of the petition are admitted. By way of further response, however, petitioner has substantially ignored and failed to abide by many of the terms of this agreement to the personal and financial detriment of the respondent, as further set forth in respond~nt's new matter below. 17. The averments of paragraph seventeen of the petition are specifically denied. On the contrary, under the circumstances of this case, raspondent's failure to pay this expense is justified in light of petitioner's pitiful failure to abide by the terms of the agreement. By way of further response, however, petitioner has substantially ignored and failed to abide by many of the terms of this agreement to the personal and financial detriment of the respondent, as further set forth in respondent's new matter below. 18. The averments of paragraph eighteen of the petition are admitted. 19. The averments of paragraph nineteen of the petition are admitted in part and denied in part. It is admitted that respondent refuses - and continues to refuse - to pay all such expenses not covered by insurance. However, respondent remains willing and able to abide by all of the terms of the support order to which he is bound, which order contains a provision regarding the payment of medical expenses not covered by insurance. ~ 20. The averments of paragraph twenty of the petition are specifically denied. On the contrary, under the circumstances of this case, as further discussed in respondent's new matter below, responde~t's unwillingness to pay 100% of the uncovered medical expenses is not a violation of the parties' agreement. 21. The averments of paragraph twenty-one of the petition are admitted. 22. The averments of paragraph twenty-two of the petition are specifically denied. Furthermore, such averments, whether stated by petitioner or paraphrased by petitioner's counsel, are outdght and malicious misrepresentations of the truth. To the contrary, respondent has continued to pay to petitioner 50% of the funds received from the United States Army pension. 23. The averments of paragraph twenty-three of the petition are specifically denied. On the contrary, respondent has done nothing which violates this paragraph of the parties' separation agreement. By way of further response, however, petitioner has substantially ignored and failed to abide by many of the terms of this agreement to the personal and financial detriment of the respondent, as further set forth in respondent's new matter below. 24. The averments of paragraph twenty-four of the petition are specifically denied. Furthermore, such averments, whether stated by petitioner or paraphrased by petitioner's counsel, are outright and malicious misrepresentations of the truth. On the contrary, respondent has incurred over $7,500.00 in legal expenses, the parties' divorce was delayed by approximately one year and respondent has been required to miss several days of work traveling from Virginia to Carlisle, Pennsylvania to attend various court proceedings, all of which would have been unnecessary but for petitioner's utter failure to abide by the terms of the parties': separation agreement. 25. The averments of paragraph twenty-five of the petition are specifically denied. Furthermore, such averments, whether stated by petitioner or paraphrased by petitioner's counsel, are outright and malicious misrepresentations of the truth. On the contrary, respondent has incurred over $7,500.00 in legal expenses, the parties' divorce was delayed by approximately one year and respondent has been required to miss several days of work traveling from Virginia to Carlisle, Pennsylvania to attend various court proceedings, all of which would have: been unnecessary but for petitioner's utter failure to abide by the terms of the parties' separation agreement. As stated in respondent's new matter below, it is, in fact, petitioner, as well as her present and past attorneys of record - who have represented dilatory, vexatious and obdurate behavior justifying that she should pay not only her own attorney fees, but those of respondent. By way of further response, respondent believes and therefor avers that petitioner's present counsel accepted this case on a pro bono basis. WHEREFORE, the respondent demands this petition be dismissed and that: 1. Respondent not be found in contempt, a remedy which is wholly inappropriate in this matter since petitioner has not even suggested that respondent has violated any Order of Court; and 2. Respondent not be required to pay any of the legal fees of petitioner (whose counsel accepted this case on a pro bono basis), but that petitioner be required to reimburse all fees of the respondent that have resulted from her substantial, willful and arbitrary failure to abide by the terms of the parties' separation agreement; and and Petitioner be ordered and directed to abide by the terms of her agreement; The Court other relief as it may deem appropriate. NEW MATTER 26. The responses of respondent to petitioner's petition, paragraphs one through twenty-five, inclusive, are incorporated herein by reference as if fully set forth herein at length. 27. On October 27, 2000, the parties entered into a written separation agreement. A copy of this agreement is attached to petitioner's petition as Exhibit "B" and is incorporated herein by reference thereto. 28. By virtue of this agreement, the following marital property was economic benefits were provided to the petitioner: A. The marital residence at 118 West Hillcrest Drive, Carlisle, Pennsylvania 17013 (see paragraph two of the agreement); B. All furniture and household furnishings located in the marital residence at the time of the agreement (see paragraph four of the agreement); C. A 1995 Plymouth Voyager motor vehicle (see paragraph four of the agreement); D. Two of the parties' bank accounts (se Exhibit "B" of the agreement); E. Respondent's assumption of various marital debts (see Exhibit "C" of the agreement); F. Spousal support in the amount of $650.00 per month from November 1, 2000 through the date of respondent's retirement from the U.S. Army on January 31, 2002, which sum defendant represented was sufficient to provide for her proper maintenance and support in accordance with the standard of living she enjoyed (see paragraph six of the agreement); G. Child support in the amount of $1,200.00 per month from November 1,2000 (see paragraph eight of the agreement); H. A prorata share of any refund paid on the basis of any jointly filed income tax return (see paragraph nine of the agreement); 8 I. Beneficiary designation on plaintiffs $100,000.00 life insurance policy, irrevocable until all child support is terminated (see paragraph ten of the agreement); J. Major medical insurance and dental insurance coverage for so long as respondent's spousal support obligations were in effect, together with the extension of coverage for the parties' children (see paragraph ten of the agreement); K. One-half of plaintiffs military pension (see paragraph eleven of the agreement); and L. Other economic benefits. 29. By virtue of this agreement, the parties mutually released and discharged any claim in each other's estate (paragraph twelve), mutually released all general claims except as expressly provided in the'agreement, expressly agreed that the distribution of property contained in the agreement was binding on both parties then and in the future and, except as provided therein, waived all claims or rights to any property owned by the other and all claims for mair~tenance, support, counsel fees, expenses of suit, or any similar claim (see paragraph t~,irteen). 30. By virtue of this agreement, the parties resolved all issues between them regarding the custody of their minor children. 31. Following the execution of this agreement by the parties, respondent provided to the petitioner the economic benefits extended to her by virtue of the parties' separation agreement and petitioner continued to reap the financial benefits of all of the terms thereof through the month of JanuarY, 2002. 32. Not until the respondent filed for divorce on February 22, 2002 did petitioner suggest that the terms of the agreement were inappropriate or unfair or that she executed the agreement under any threat or duress or other physical or legal disability, even though at that time petitioner was already residing with and protecting an illegal adult alien, named Rafael. 33. Over the last eighteen months, however, petitioner has maintained a posture of continued litigation, refusing to honor the terms of her agreement and causing great financial expense and other hardship to respondent all in a dilatory, vexatious and obdurate effort to disavow the terms of her agreement, delay the parties' divorce and obtain financial benefits to which she is no longer entitled while at the same time living with an illegal adult alien, who has since been arrested and deported. 34. In addition, petitioner has inappropriately and fraudulently, contrary to the terms of the parties' agreement, claimed the parties children on her income tax return, knowing that respondent was already claiming them on his return as provided in the agreement. 35. Respondent believes and therefor avers that such activity on the part of petitioner and her present and past attorneys of record, in the face of the parties' agreement and the circumstances of this case, constitute an abuse of the processes of this Court, are malicious and frivolous acts and are so egregious that the Court should require that respondent's attorney fees and costs in the defense against these actions of the petitioner should be reimbursed to him. WHEREFORE, the respondent de~ands this petition be dismissed and that: l0 1. Petitioner be required to reimburse all legal fees and costs of the respondent that have resulted from petitioner's substantial, willful and arbitrary failure to abide by the terms of the parties' separation agreement; and 2. That petitioner be ordered and directed to abide by the terms of her agreement; and July (7 ,2003 Such other relief as the Court may deem appropriate. 35 East High Street Carlisle, PA 17013 (717) 243-6090 Supreme Court ID No. 29920 VERIFICATION The facts stated in this answer and new matter are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. Section 4094, relating to unsworn falsification to authorities. July/?, 2003 ]2 HUMBERTO IRIZARRY, Plaintiff V. MILDRED E. IRIZARRY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-0909 CIVIL TERM IN RE: DEFENDANT'S PETITION FOR CONTEMPT ORDER OF COURT AND NOW, this 20th day of August, 2003, upon consideration of the attached letter from Bradley L. Griffie, Esq., attorney for Defendant, the hearing previously scheduled in the above matter for August 20, 2003, is continued generally. Counsel are directed to contact the court if they desire a hearing in this matter. BY THE COURT, ~l~old S. Irwin, III, Esq. 35 East High Street Carlisle, PA 17013 Attorney for Plaintiff ~radley L. Griffie, Esq. 200 N. Hanover Street Carlisle, PA 17013 Attorney for Defendant ).~esley Oler,~ ' J. irc 8u~ ~0 03 11: 1Sa Gpi~ie & 8ssooiates 717~435063 p.~ Bradley L. Griffie, Esquire Marylou Matas, ]Esquire Weudy J. F. Grella, Esquire Robin J. Gosborn Reply to: Carlisle yyi & .,qssoc q s Attorneys and Counselors at Law August 20, 2003 200 North Honnver Carlisle, PA 17013 (717) 243-13.~1 38 North Main Street Chamber~burg, PA 17201 (717) $67-1350 (800) 34~-~S52 Fax (717) 243-,5063 VIA FACSIMILE & U.S. MAIL Fax#: (717) 240-6462 The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Irizarry v. Lrizarry No. 02-909 Civil Term Dear Judge Oler: Your calendar will reflect that there is a hearing scheduled in the above captioned matter on our Petition for Contempt and Rule to Show Cause for today, Wednesday, August 20, 2003, at 3:00 p.m. Please be advised that opposing counsel, Harold S. Irwin, III, Esquire, and I, through the careful consideration~ of our clients, have come to an accommodation that will allow me to withdraw my Petition for Contempt and Rule to Show Cause. The necessary documentation has been executed by Mr. Irwin's eliant and we are in the process of securing my client's siguature. I would greatly appreciate, with Mr. Irwin's consent, if you would generally continue thc hearing presently scheduled for August 20th. AS soon as all documents are signed, we will confirm that with your office and, further, file a Pmecipe to Withdraw the Petition for Contempt. Your courtesy in this regard is appreciated. Very truly yours, ~iffie BLOfkjl Ce; Harold S. Irwha, HI, Esquire [Via Facsimile & U.S. Mail; Fax #: (717) 243-9200] Mildred Irizarry HAROLD S. IRWIN~ 1119 ESQUIRE ATTORNEY ID NO. 29920 35 EAST HIGH STREET CARLISLE PA 17013 (7t 7) 243-6090 ATTORNEY FOR PLAINTIFF HUMBERTO IRIZARRY~ Plaintiff MILDRED E. IRIZARRY~ Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW .. : NO. 02 - 0909 CIVIL TERM : IN DIVORCE PRAECIPE TO SETTLE AND DISCONTINUE To the Prothonotary: Please settle and discontinue, with prejudice, defendant's Countemlaim for Equitable Distribution, Counsel Fees and Expenses and Spousal Support, Alimony and Alimony Pendente Lite, filed on or about March 8, 2002 the alimony pendente lite portion of which is presently pending before the Support Master Michael Rundle. The intention of this praecipe is to terminate, with prejudice all litigation relative to any economic claims for which the Court retained its jurisdiction upon the entry of the Divorce Decree on February 10, 2003. ^u.-st 2003 ~~t'offt4~ fo~DefendantESQUIRE Please settle and discontinue, with prejudice, the plaintiff's counterclaim against defendant seeking reimbursement of attorney fees. The intention of this praecipe is to terminate, with prejudice, all litigation relative to any economic claims for which the Court retained its jurisdiction upon the entry of the Divorce Decree on February 10, 2003. August 14, 2003 HAROLD S. IRWIN, III,~SQUII~E Attorney for Plaintiff HAROLD S. IRWIN, Ill, ESQUIRE ATTORNEY ID NO. 29920 35 EAST HIGH STREET CARLISLE PA 17013 HUMBERTO IRIZARRY, Plaintiff MILDRED E. IRIZARRY, Defendant iN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02 - 0909 CIVIL TERM IN DIVORCE PRAECIPE TO SETTLE AND DISCONTINUE To the Prothonotary: Please file the attached Addendum to Separation Agreement, dated August 25, 2003, together with its attached Exhibit, the parties' Separation Agreement, dated October 27, 2000 with this divorce file. The parties agree that the Separation Agreement and its Addendum shall be incorporated, but not merged into the divome decree previously entered by the Court. Please settle and discontinue, with prejudice, defendant's Counterclaim for Equitable Distribution, Counsel Fees and Expenses and Spousal Support, Alimony and Alimony Pendente Lite, filed on or about March 8, 2002 the alimony pendente lite portion of which is presently pending before the Support Master Michael Rundle. ~ The intention of this praecipe is to terminate, with prejudice all litigation relative to any economic claims for which the Court retained its jurisdiction upon the entry of the Divorce Decree on February 10, 2003. September ~>, 2003 ESQU,RE / ~..~'f~o r ,Dbfenda n t Please file the attached Addendu~~ion AgLement'dated August 25, 2003, together with its attached Exhibit, the padies' Separation Agreement, dated Ootober 27, 2000 with this divorce file. The padies agree that the Separation Agreement and its Addendum shall be incorporated, but not merged into the divorce decree previously entered by the Coud. Please settle and discontinue, with prejudice, the plaintiff's counterclaim against defendant seeking reimbursement of attorney fees. The intention of this praecipe is to terminate, with prejudice, all litigation relative to any economic 2003.c~a~msf~rwhi~hthe~urtret~ineditsj~r~sd~ti~yp~/~e~entry~ftheDiv~r~eDe~r~n February 10, '-'HAROLD S. IRWIN, III, ESQUIRE ] Attorney for Plaintiff ~ ADDENDUM TO SEPARATION AGREEMENT This Addendum entered into the d;~y and year hereinafter set forth by and between HUMBERTO IRITARRY, of Commonwealth of Virginia (hereinafter referred as "Husband") and MILDRED E. IRIZARRY, of 118 West Hillcrest Drive, Carlisle, Cumberland County, Pennsylvania (hereinafter referred to as "Wife"). WITNESSETH: WHEREAS, the parties were previously Husband and Wife having been married in Aguadilla, Puerto Rico, on December 27, 1981; and WHEREAS, the parties were divorced by Decree in Divorce on February 10, 2003, as entered in the Court of Common Pleas of Cumberland County, Pennsylvania; however, the Court retained jurisdiction of'ali outstanding economic claims raised in the parties' pleadings; and ~ WHEREAS, the parties are subject to a Separation Agreement dated October 27, 2000, which is attached hereto and incorporated herei~ by reference as Exhibit "A"; and WHEREAS, there have been misunderstandings or' different interpretations of certain provisions of said Agreement, NOW THEREFORE, in consideration of the mutual promises, covenants and agreements as hereinafter set forth the parties stipulate and agree as follows: Except for the specific provisions referenced hereinafter, all of the provisions of the parties' Separation Agreement dated October 27, 2000, shall remain in full force and effect for all purposes. The parties have different interpretations of the application of paragraph number 11 of the Separation Agreement relative to Wife receiving a portion of Husband's United States military pension. In an effort to resolve their differing interpretations of the language of said paragraph, the parties hereby replace paragraph 11 of said Agreement with the following paragraph: 11. Pension Plan. Wife is entitled to receive fifty (50%) percent of Husband's United States Military pension pay on a monthly basis. Husband shall compensate Wife a sum equal to fifty (50%) percent of his net military pension pay each month by making distribution to her by no later than the tenth (10th) day of each month from each monthly benefit pension check received beginning with the first (1 st) month following signing of this Addendum by both parties. Husband shall, at all times, maintain Wife as the Survivor on his SBP Plan. This obligation shall cease at Wife's death. Further, however, beginning September 1,2004, Husband shall compensate Wife an additional amount sufficient to create a total monthly distribution to her of SIX HUNDRED FIFTY AND XX/100 ($650.00) DOLLARS per month when combined, with the disbursement of fifty (50%) percent of his military pension as described above. For example, if Wife is receiving through direct payments from Husband of fifty (50%) percent o,f his military pension in the amount of TWO HUNDRED TWENTY-FIVE AND XX/100 ($225.00) DOLLARS per month, Husband shall provide Wife with the additional payment of FOUR HUNDRED TWENTY- FIVE AND XX/100 ($425.00) DOLLARS per month to bring the total monthly disbursement to SIX HUNDRED FIFTY AND XX/100 ($650.00) DOLLARS. This additional sum paid by Husband to Wife shall be considered alimony for tax purposes for both parties. The payment of the additional sum described herein shall be made personally from Husband to Wife on a monthly basis and shall be paid to Wife by no later than the tenth (10th) day' of each month. This additional payment made under this provision shall be considered alimony and shall be non-modifiable, but shall end upon either party's death or upon Wife's remarriage. Distributions made to Wife from Husband's income or assets after September 1, 2004, as per the provisions of this paragraph, shall always provide Wife with receipt of the sum of SIX HUNDRED FIFTY AND XX/100 ($650.00) DOLLARS per month to be reduced only under circumstances where Wife or Husband dies or Wife remarries. The parties further acknowledge that Wife has pursued the issue of child support payments through the Cumberland County Domestic Relations Office, and there is, in effect at this time, a Domestic Relations Order originally dated May 10, 2002, but supplemented by an Interim Order entered on July 12, 2002. The parties further acknowledge that they agreed in their above-referenced Separation Agreement that Husband would pay the sum of FOUR HUNDRED AND XX/100 ($400.00) DOLLARS per month in child support for each minor child. However, the parties further acknowledge that support obligations for the minor children as set forth through the entry of the aforementioned Orders of May 10, 2002 and July 12, 2002, which are docketed to No. 260 Support 2002 and PACSES No. 812104378, shall supercede and replace the support obligation of the Husband for his children as set forth in paragraph eight (8) of their Separation Agreement, except for the provisions of the last subparagraph thereof, relating to the Husband's entitlement to claim exemptions for the parties' children on his income tax returns, which shall remain in full force and effect. It is further acknowledged that the parties agree to paragraph ten (10) of their Separation Agreement that Husband shall pay "all reasonable medical, dental, and orthodontic expenses of the Children (other than elective or cosmetic surgery or psychiatric or psychological expenses) to the extent not paid by insurance." The parties ~urther acknowledge that the previously referenced Support Orders dated May 10, 2002 and July 12, 2002, modify this arrangement by obligating Husband to pay eighty (80%) percent of all uninsured medical expenses and for Wife to pay twenty (20%) percent of ail uninsured medical expenses. The parties hereby agree that the Orders of Court dated May 10, 2002 and July 12, 2002, shall supercede and replace the parties' prior Agreement relative to Husband's obligation to pay one hundred (100%) percent of uninsured medical expenses as set forth in paragraph ten (10) of their Sep~iration Agreement. The parties agree that the provisions of the Orders of Court dated May 10, 2002 and July 12, 2002 regarding unreimbursed medical expenses shall remain in effect as of the date of those Orders. All rights available to either party relative to securing information concerning medical treatment including a right to have knowledge of the care provider and a review of proposed medical treatment prior to treatment, shall be afforded to the parties herein. The parties further acknowledge that paragraph five (5) of their Separation and Property Settlement Agreement, and more specifically the marital debt obligation set forth in Exhibit "C" to the Agreement, required Husband to pay the sum of FORTY-TWO AND 37/100 ($42.37) I:)OLLARS per month for the Dish Network bill until the parties' final divorce. It is acknowledged by the parties that Husband has not maintained this obligation. Wife hereby waives any right to enforce the obligation of Husband to pay this amount and shall make no claim on this issue from this time forwa~rd. Simultaneously with the execution of this addendum, and pursuant to the October 27, 2000 Separation Agreement, Wife agrees to and does hereby release to Husband all her right, title and interest in the parties' real estate in Puerto Rico, specifically identified as Barrio Camaseyes Road 467, Lot #2 (878.47 SM), Aguadilla, Puerto Rico 00603), as described in Deed No. 79, Book 447 from Aguadilla, prepared by LCDO Edwin S. Miranda, dated June 28, 1991, as follows: Description: Lot #2, located in Barrio Camaseyes in Aguadilla, Puerto Rico, with a superficial measurement of 878.47 SM, equivalent to 0.2235 acre, adjacent on the North to a public lot, on the South by a water canal and Gerardo Gomez, on the East by Lot #3, and on the West by the main Farm. Simultaneously with the execution of this addendum, and pursuant to the October 27, 2000 Separation Agreement, Husband agrees to and does hereby release to Wife all his right, title and interest in the parties' real estate in North Middleton Township, Cumberland County, Pennsylvania 17013, as described in Cumberland County Deed Book 125, Page 442, being known as 118 West Hillcrest Drive, Carlisle, Pennsylvania 17013. Simultaneously with the execution of this addendum, and pursuant to the October 27, 2000 Separation Agreement, Husband shall execute and deliver to Wife a limited power of attorney appointing Wife to sign any application or any other necessary forms or documentation for the transfer of the title or registration to the parties' 1995 Plymouth VIN No. 2P4GH45R4SR153099. 10. This Addendum, together with the parties' Separation Agreement of October 27, 2000, shall constitute the fult and final settlement of all existing economic claims between the parties as to which the Court retained jurisdiction at the time of the entry of the divo,'ce decree on February 10, 2003. 11. Except for the existing support Orders of May 10, 2002 and July 12, 2002, which are docketed to No. 260 Support 2002 and PACSES No. 812104378, the parties agree that all other pending litigation between them shall be and is hereby settled and discontinued and counsel for the parties are authorized to file any praecipe or other documentation as may be necessary to terminate such actions, effective immediately. 12. In the event of the breach of this agreement by either party, or in the event that either party initiates any litigation to challenge the validity or enforceability of the parties' Separation Agreement or this Addendum thereto, the nonbreaching or nonmoving party shall have the right to seek monetary damages for such action, where such damages are ascertainable, and/or to seek specific performance of the terms of the Separation Agreement and this Addendum, where such damages are not ascertainable. All costs, expenses and reasonable attorney fees incurred by the successful party in any litigation to obtain monetary damages and/or specific performance shall be recoverable as part of the judgment entered by the Court. 13. The parties' Separation Agreement of October 27, 2000, and this Addendum shall be incorporated into the Decree of Divorce entered by the Court on February 10, 2003. 14. All other provisions of the parties' Separation Agreement of October 27, 2000 not modified by this Addendum shall remain in flJll force and effect. 15. The provisions of the Separation Agreement of September 27, 2000 and this Addendum and their legal effect have been fully explained to the parties and its provisions are fully understood. Both parties agree that they are executing this agreement freely and voluntarily. Both parties have had adequate opportunity to review this agreement with independent legal counsel. Husband's attorney is Harold S. Irwin, III, Esquire and Wife's attorney is Bradley L. Griffie, Esquire. IN WITNESS WHEREOF the parties hereto have set forth their hands and seals the d~y hereinafter written. DATE~ - ~LIMBERTO fRl~ 7 DATE k~) M1LD~ED E. IR-IZARRY O) ~ COMMONWEALTH OF PENNSYLVANIA : COUNTY OFCUMBERLAND : On this 14th day of August, 2003, before me, the undersigned officer, personally appeared HUMBERTO IRIZARRY, known to me (or satisfactory proven) to be the person whose name is subscribed to the within Agreement and acknowledged that he executed the same for the purpose therein contained. IN WITNESS WHEREOF, I hereunto ~.9.t~ hand and official seal. NOTARIAL SEAL ~ ~ HABOLO S. IRWIN, III, NOTARY PUBLIC I !CARLISLE f~0ROUGH, COiJNTY OF CU,~ERLXNDi Notary Public ~vly C0[VtMISS1ON t~Xr'IRES 0CTOBER 22, 2~?~ COMMONWEALTH OF PENNSYLVANIA : COUNTY OFCUMBERLAND : On this ~'~ day of August, 2003, before me, the undersigned officer, personally appeared MILDRED E. IRIZARRY, known to me (or satisfactory proven) to be the person whose name is subscribed to the within Agreement and acknowledged that she executed the same for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. ~ Ep A RATI.~QO N AG~EMENT Dated ~id~ ~ 7 . 2000 between E[U'MBERTO ~Y MILDRED ENID IRIZA_R~Y I Separate Residences 2 Tile Marital Residence 3 Other Real Property. 4 Personal Properly. 5 Debts 6 M. aintenance and Support' ? Custody and Visitation 8 Child Support 9 Income Taxes l0 Insurance 11 Pension Pla-n 12 Claims in Estates 13 General Claims 14 Legit Representation 15 Full Disclosure 16 Mcrger and Survival 1'7 Notices !.8 General ?rovisions EXHIBIT A - Real ProperS. E~",,_~I~IT B - Personal Prapert?' EXS-IIBIT C - Marital Debts EXJ-U_BIT D - Visitation Rights --EXHIBIT "~"-- _SEP 4RATION A~C, REEMENT AGREEMENT. made thisc~Tday of ~f~cw/-c~'b- 2000. between HUN[BERTO IY. iZARRY. residing at Building 472l, Apt 105. Wigle Court, Fort Meade. M,xryland 20'755 (hereinafter referred to as the "Husba~d"), and MILDKED ENID IRIZA/:LP-Y. residing at 118 West Hillerest Drive, C~lisle. Pennsylvama 170 I3 /hereinafter referred to as the "Wife"). WITNESSET~: WHEREAS. tbe parties hereto were duly married in Ag-aac[ill~., Puerto P, Jco. on December 2'7, 198l: and WHEREAS. there ,'ire three children of the m,qrriage, namely HUlvlt3ERTO ANGEL IRIZA2:LRY bom on December I I. 1983, JOSE NOEL [t:LIZARRY born on Au=m.tsI 10. 197,6, ,'md LUIS ,~NDRE L?JZAJLR. Y born on September 5. 198'7 (hereinafter referred to as the "Children" or indivi:iuaily as a "Child"): and there are no adduional or expecled issue of tile marriage: and WHEREAS. the parties, in consequence of disputes and irreconcilable differences, separated on or about Sepmmber 1. 1999. and are now living separate and apart from each other. ,'md have voluntarily and mutually agreed to continue to live separate and apart: and WHEREAS, e&ch pan2,.' has been advised of their fights to obtain full disclosure of the other party's 5~:ancial conditmn, thcludmg ~ncome. expenses, assets, liabilities an:l assert transferred, and have obtained Ifall and satisfacto~' disclosure of such; and WHEREAS. the parues desire to resolve the ~ssues of custody, visitation and support and to settle their financial, property_ and other rights and obhgadons artsing out of the marriage and other,vise NOW, THER_EFOR-E. tn considerauon of the mutual promises and agreementt hereto contained. tile parties hereto agree as follows: I. S_Scpnrate Residences. The Hnsbaod and Wife shall coothme to live sepurate and apart from Eacb shall be free from h~assment, interference, molestation, nut/oriw and conL,-ol, direct and indirect by lm mher. as fully as if lie or she v. ere single and unmated. Neither of the parties hereto shall interfere with tbe other in his or her respective liberb' of action or conduct, and each agrees rJmt tbe other, at any and all tunes, may reside nod be in such place and ,aith such relatives, friends and acquaintances as lie or sbe may choose. Each pan3' agrees tlmt they will oct file for a d. ivorce prior to JanuaO' L 2002. 2. The Marital Residence. The Husband and Wife were th~: owners of premises known as 115 West Hillerest Drive. C~lisle. Penn~'lvania 170t3 (hereinafter referred to as the "House"). Contemporaneously x~it h the execution of this Agreement. the Husband sltall convey the House to the Wile. wlto shall bt the sole owner rents, fire insurance premiums, f'ceL utilities and mortgage debt service payments for the House. shall be paid by the WiI'c. The Wife shall also be responsible for all repairs. 3. Other Renl Propert"_i. Thc parties agree that die real propem.' listed in Exltibit A annexed, hereto slmll belong to the parties indicated m Exhibit A. subject to any tentts or conditions set forth tbereir~. 4.. Personal Pr~mert','. The parties acknowledge t tat the;' prw,'ionsly ltave made a division and, sctdement of their persona propert',' and personal effects, and that each is and sllall be the ov,'ner of all personal property no'.',' in lxis or tier possession, except as provided in Exhibit B annexed hereto. The parties agree th. at all furniture and honsehold f~rnis'nings located in the House sltall be the exclusive properO of the Wife. except for any properO of the Husband set forth in Exhibit B (which properS.' the Ht~sband prompd_', shall remove from the I-louse). Tile par~ies agree tlxat their automobiles shall be disposed of as foilo'.vs: The l-lusband shall be the sole owner of the 2{)00 Toyota £amrs". ID#HTI]3G22KOYU692582- Thc Wife shall be the sole: owner of the 1995 Plymouth Voyager, ID #'~P4GH45ROSR153099. The parties' sort, t4-LTM:BERTO ANGEL ]tU, ZASLR¥. shall become the owner of the 199,5 Toyota Corolla. iD#2TIBAO2EOTCt43819. Eact~ party, shall be responsible for their own expenses relating to their vehicle, to include liens, maintenance- repairs and insurance. Each party sball o~n. ha~e add enjoy, frec of any righl or clahn of the oLher part~, all property' 5. ~ihilit'~' For Dehts. The parties heretofore have incurred certain bills, debLs and obligations described in Exhibit C a~mexed hereto. The Husband agrees to pay the items designated in Exlfibit C as "Husband's Ob *ga ~ons" as the same become due: and the Wife agrees to pa)' the items designated in E:,tl~ibit C as "Wife's Ob ~ga tons" as the same become due. Each parry, represents and warrants that. except as set forth in Exhibit C. lie or she. as the c[se may be. has nol incurred or contracted any debts or obligations for which the other or any prepare,' of the et her may be liable, either inciividuallv or jointly. Each parE,.' agrees that he or she hereafter shall not incur am debts or obligations for which the other may be liable. Each p~x,'T,_' shall indemnify, and hold the other [larmiess from and against any costs and expenses resulting from a breach or violation by such pa~>' of ~'my representation, w wran~' or covenant contained in this Article 5. 6. ~_laintenance and Sum)oG. The Husband agrees to pay to the Wife. as and for her tnaimenance and support. Six Hundred and Fifty Dollars ($650.00) per month payable in equal monthly installments conunencing on thc first day of the month followthg the date of this Agreement. and continuing on the first day of each succeeding month, until the earlier of the Husband's retirement from active mil. itao' ser,,'ice (no o~lier than Janu~w~ l. 211112). tho death of either pariy or tile renmrriage of the Wife. The Wife represoms that the ~foresaid palments arc and shall bc sufficient to provide for her proper maintenance and support th accordance with the standard of living sba now enjoys. When the Husband retires from the Urdted States Army'. the Wife shall have the option to move back to Puerto Palco and have her property shipped at the militao"s expense pursuant m the Husband's mil. itar,,' orders. ?. Custlldx' and V s ration. The Husband and Wife agree mat the castocLs'. supep,'zsion, care and control of the Children. shat1 be held jointly by :he Httsbana and Wife with the Wife to have physical costed.', subject to the visitation rights of the Husband hereimxfter se~ forth The Husband shall have the rights of'.'is~tatlon with the Chddren set forth in Exhibit D annexed 'hereto The Wife agrees to be reasonable in accommodating ar~y aes~res of the Husband for additional visitabon with the Children or any express ,,,,lshes of the Chilciren to visit with the Husband. Ncit er party shall do :lnvthiag wldch amy estrange the Children from the other party, or injure the opmmn of fl~c Children as to thc olber parly, or hamper tile free and namr~ de,~elopmnnl of the love and respect of thc Children lbr the et er parW. Each party agrees d/at if either of them has any knowledge of any illness, accident or other circomstances set ousIy ~fffgcfing the health or general waffle of fl~e C~l~en. he or she promptly sh~l na~y the other of such circumstances. Each pa~ shall be entitled to complete, flet~icd i~ormation from ~y doctor. ps>choIogist, psychiatrist, consultant, or specialist attending any of ~e Children for ~y reason, ar any teacher or school which any of the Children attends. ~d each pa~ shMl ~ish to the off,er copies of all repogs of ~y such person or enti~.'. The parties agree to consxflt with each other with respect to the education, religious ~rainiag. hcald/, welfare and other mat~ers of similar hnpov:ance affecting the Children. ,.','base well-being, education and dcx clopmcnt at all times shall be the paramount consideration of the pardes. Tile Cldldren may not be adapted by any person wiLhout the p fiat wrhten consent al khe Husband and Wife. nor shall tile Wife have the right, at any time. to appoint a guard, ion o£ the Children other than the Idltsband The Childrcn shall continue to be known under the Husband's surn;.me, and shall not use or assume an.,,' other surname, notwidxstanding an'.' remarr/age of the Wife. Neither parr3.' shall initiate or permit the designauon 0£ "12~ther" or "mother" or metr equivalents to be used by the Cilildren with reference to an_',' person otl~er than the Tile [allure Oy the Husband to exercise an3 visitation fights orovtded hereto sba not be deemed, a thc Children at any pamcular nme The visitation rights provided hereto st,~ail be entirely' opnonal for the righ[s in the future 8. Child Suppom:. The Husband shall pay tn the Wkfe. as and for the support and maintenance of oath minor Child. the stun of Four Hundred Dollars ($4.00.00) per month U:he total amount per month shall for all lhe clxildren shall hal exceed the Basic Allowance for Quarters at the "with dependent" ratel, commencing on the Ilrst da:,' of tile month fallowing the date of this Agreement. and continuJ, ng on the first da5 of each succeeding momll UOL[I thc occurrence of thc earlier of dm following events: (a) dm attamomnL of the age of I S years (~S ~c~s. if ~hc Child cntcrs college by Oclob~r [ol]o~xtog attaining tim age o[ ~S ~ears and [her~;Z~er continues m a~[cnd college) by or curlier cmuncipation of LhC Child: (b) Lbo marriage of [be Child: (c) enL~ by such Cbild in the militaO' scm'ice oF the United Stares: (d) ~he engaging by such cNId in full-time employment ~u~ nat employment ~imited to vacalton nod stnnmgr periods}: (e) permanent residence away from the residence ag ~m Wife (other d~ residence at a school, camp or college): (B the death of ~c Husband: or (g) ~c death of such CNId. In addition to thc ~aresmd suppo~ payments. ~e Hushed shall pay ~: reasonable expenses af the undergraduate college e~ucafion of :ach Child. including without limitation tuitiom application fees. the costs of boo~ and supplies, room and ba~d. and incidental expenses ne~aEy incased :m connection w'ith such education. The Husband· however, shall nat be oNigated to pay more t~an the amount remaining ~=r the children hax'e appbed for grants, leans, scholarships, etc. Tile Husband sl~all not be obligated to make any other child support and maimenance payments. Thc Wife accepts these pro,Asians in full ,'md final settlement an6 satisfaction- and herein releases the Husband. absokncly and fore~cr, fro n an~ claims or demands, for child support and mafutenance, except as provided herein. 4. l~ pafments ye ontarilv made b; the Husband to the Wife for child support in excess of the amounts provided [or a rec°dent- herein shall tier aHer thc obligations of Husband hereunder nor create p - - Thc Husband shall be entitled to claim exemptions for the Children on his income tax returns. The Wife agrees not to claim exemptions for the Children on her income t,mx returns, and she releases her right to dn sa Tile Wile prmnptly shall execute and deliver to the Husband IRS Form 8332 or its equivalent, and the Husband shall be entitled to attach said farm to his income tm': returnS. The Wife shall take such odmr actions as ma.~ be n¢cessaQ' or appropriate to enable the Husband to claim exemptions for the Children. 9. Inet>mc To×eS. The par-ties have filed certain joint Federal. State and local income tax returns. 5acb p:~rry represents to tile other that to the best of his ar her knowledge and belief all income taxes shown to be due an such returns have been daly paid, and that no interest or penalty, is due with respect thereto. The parties shall cxecute and file joint tax returns for the calendar year 2000, and for any other veers in which they are eligible to do so, An?' refund payable with respect to anvjoint tax return, now or hereafter filed, shall be paid to the Husband and Wile in proportion to O.~eir respective incomes for the tax year, and the Husband and Wife shall endorse refund checks and lake such other actions :is may be necessaFy, or appropriate lo etTectuale such payment. [f there is C~e{~cicIICX Or [:Ix Ji:ibi~Jt¥ 3ssesscd Oil :n/y joHltly filed tax return, such deficianc? or mx liobJliq;- with any futerest or penalties' thereon, shail'be paid by the Husband and Wife in proportion LC their respective incomes for tim tm': year. on[ess and to the extant that the same l'ms been caused by the failure or neglect of tile other parry. Tim parties shalJ cooperate in tile preparation of any trax returns to be jointly Filed. so that tlmy may be revie',~ed a~ a suitable time before the due date thereo£ ]£ there is an audit or examination of any joint trax return. each pare' slmli furnish such record, s, documents and other imrormation as ma.~ be reasonably requested 1Lh Insur~._~mc_e. The pomes represent and warrant that there is presently in full force and effect an insuraoce pclic'/on his/her life in tile face amount of $100~000.00- The parties agree that at all times ~ffter the date hereof he/she shall ommtain in full force and effect a life insurance palim:' on D.s life/her in a face amomnt of $ ltnl.llO/1 IlO for tbe benefit of the other para._', who shall be the sole and irrevocable beneficiary thereof, until child sopporl is nc lon~er an obligatiou. All dividends on said policies shall belong exc usivelv to the Husband]Wife- who shall be entitled edhcr to receive the dividends or apply tile same in reduction of premiums of their respective policies. In addition, the Husband agrees to maintain in full force and. effect TPdC-zd~E (or an ecluivaient insurancg~, dental insurance and ma}or medical insurance covering tile Wife and the Children at all times. The Idosband shall not be required to maintNn such insurance if and to the extent such coverage is provided by an employ'er ar the Wife. The Husband shall pa?' all of all reasonable medical, dental and orthodontic expenses of the Childlen (other than dcctive or cosmetic surgeO' or psychiatric or p~chological expenses) to the extent not paid by such insurance. Tile Wife shall be respons.ible for her own unpaid expenses. Each parry slmll cooperate with the other in the filing of any claims and in securing reimbursement for any ekpensc paid by the other qualifying for reimbursement under such insnrance. The obligation of the Husband to maintain insurance ptu-suant to the provisions of this Article lO sba[[ terminate upon the occurrence of ,-my event which results in the termination of tim Husband's support NoLbing herein shall impa/r or waive any cause of action which either party may have agmnst Lhe The ptrties, b~ execution of riffs AgreemenL have provided for a l-air ~md equitable distribution of all proper belonging Lo the parties, Any reference or allocation with regard to property, whether real or personal. is made for the pl~rposc o[ settling all claims to such properg.' by tile parties and [er the purpose of effectuating an equitable distribution or-all proper between the parties. The dJ. stribntioo of property provided for berein stall be discharges all claims or rights to any prnpen5 owned by the other or allocaLed to the other under this Agreement, provided herein. 14. ~Legul Representation... In connection wilh this Agreement. the Husband fins had the benet-~t of tile adx'icc o[ Offtce o[ the SudT Judge Adx ocate, independent counsel of his own selection The Wife has been advised m select and obtain counsel to represent her in this matter. The Wife has had. the benefit of the advice of an attorney located at Carlisle Barracks. Penn~'lvania. Eaci~ panE' acknowledges that all of the ~natters embodied in this Agreement. including all terms. co~cnants, conditions, waivers, releases and other provisions contained herein, are fully understood by ixim or her: that be or she is entering into this Agreement freely, voluntarily and, a_~ter due consideration ~f the consequences of doing so: and that this Agreement is valid and binding upon b. im or her. 15. Full Disclosure. Each party has made independent inquio' into the complete financial ctrcumstances of the other, and acknowledges that he or she is fully informed of the incmne, assets and financial prospects of the otter, and is satisfied that full disclosure has been made. The Social Security, Number of the Husbpmd is 584-35-1.584. and the Social. ~ecurity Number of the WLfe is 584-1. 1- 16. NI.~erger and Survival. in the event that either party obtains a judgment, order or decree of divorce against the other, the provisions of this Agreement expressly shall be incnrporated in the text thereof with s~ch spec]lied> as thc court shall permit and b5 reference as may be appropriate under [aw and tee n.des of the conn. &Il of Ibc prox'ismns of this Agrcameol shall be inco~oraled in aoyjodgmcm or decree of divorce. Tl~s Agreement shall su~'~ve, and not be merged in. ira> judgment, decree or order, ~d the pi~e.i hereto shMl remMn bo~d to fl~e performance o1' tEEs Agreement in accordance witE the te~s hereof. 17. Notices. Any notice, demand or other comm~icafion required or pe~itted ~der fllis Agreement shall be in wrding and shall be delivered by hand or by Federal '.Express courier or by ca.md or registered mail. return receipt requested, with postage prepai6, to the p~mies at fl'reit addresses first above written or at such other addresses as they may designate by notice hereunder. 18. General Provisions. This Agreement is entire and complete and embodies ~1 underst~ngs and agreem~ots between the ponies. No representation, xva~anff- agreement or undeu~ing of~y Mad or nature has been made to either pa~' to induce the m~ing of this Agreement. except as is expressly set foffi~ herein. The panics acknowledge that there is BO Otller agreement, oral or written, existing ~etween Cern. No oral statement or prior written maner outside of this Agreement shall have any farce or effect. This Agreement shall not be amended, modified, disch~ged or terminated except by a writing executed aod ackoowtedged by the pa~' sought to be bound. Any waiver by either pa~' of ~y provision of this Agreement. or of an5 right or option hereby, shdil nat be fieemed a continuing waiver and shall not prevent such part5 l-rom there:~sr insistiog upon the strict performance or e~arcement of such provision, right or option. The pa~ies agree that each of them. upon request of the other pa~' or the legal representatives of file other pa~. shall execute and deliver such other and Mnher ins~ments as may be necessa~' or desirable for the pu~Ose of giving Rdl force aod effect to the provisions of this Agreement. without cN~ge therefor. Each pa~' shall noti~ the other, by registered or certified mail. of any change of address or tclephooe nmnber within fixe days of such change. This Agreement and all rights and obligations of the parties hereunder shall be construed according to the laws of the Commonwealth of Pennsylvania. If any provision of tiffs Agreement should be held to be in,,'alid or unerd'orceable under the laws of any State. country, or other jurisdiction, tee remdinder of this Agreement shall continue in ~11 Force and effect. This Agreement shall be binding upon the parties hereto, and [heir respective heirs, executors. above written. IN WITNESS WHEREOF. the parties hereto have executed this Agreement on the date first 10 STATE OF MARYLAND. cOUNTY OF ANNE ARUNDEL. ss On dns~ 7day orL'('Td-Tf~'~'~t~ · 2000 before Ille. the uodersigned officer, personally appeared HUMBERTO [PdZ,KRRY. knowo to me (or satisfactorily proven) co be tt',o person whose name is subscribed to the xxilhm z~greement, and ~xcknowledged that hc executed d~e same for the uses and purposes therein contained. IN WITNESS WH:EREOF I hereunto set my hand and official seal. Notary. Public Z//, _~ z'~-_~ My commission ex~tres on · SS. · N CONtMONWE,'kLTH OF PENNSYL'v A, LA. cOUNTY OF CUMt3ER%-~.ND On this 1 5 day of November .2000. before me. the undersigned officer, personally appeared MILDP£D ENiD II:UZ,,kRRY. known to me (or sadsfactoffl.v proven) to be the person whose name ts subscribed to thc xx ithm agreemsnt, and acknowledged that slxe executed the same for the uses and purposes therein contained IN WITN'ESS kVHEi:LEOF I hereunto s~t m.', hand and ofl"~cial seal. EXHIBIT A ~Dispositio~n Of Othe_~r Real Propegt~v The parties joind? own a building lot in Bario Camaseye Road 46T Lot I/2 (878.47 SM), Aguadilla. Puerto Anco. EffEctive wi[h file sigoing of d;is Agreement. WiJTe shall as soon as possible, u'ansfer by deed, all right title and mlerest io and to the properly to tile Husband. Thereafter. dm Husband shall be responsible for all expenses relating thcrmo. E,XZI IB IT B _Disposition Of Personal Proper't',' HUSBAi~E)'S PROPERTY: Tile Husband slmll rcmin tl~e Fort Bragg Federal Credit Union checking account and savings account, consisting of Accouot #1)584-35-1584. Liber2,.' Account #2 and Shares Account #1. Ano Cox Painting Tools Freezer. pool table and lawn tractor stay ;,,'itl; the House. WIFE'S PROPERTY: Thc Wife shall retain the Banco Popular account #481-06oo8-. and Members l~ FCU account #170513000. EXHIBIT C Marital Debts HUSBAND'S OBLIGATIONS: All credit cards issued jointly will be cancelled and/or destroyed at the time rids Agree~nent is executed. Dish Ne[work bill. $42.37 until the final divorce. ,~.OL Account, $21.05 until a free interoet ser,.fce is establisbed-. Orthodontic (Humberto Angel), $76 ,.,dtb a balance of $2,1.90 Insurance' Premium San Set Life. $45 WIFE'S OBLIGATIONS: All uti[it) bills at 1 lB West H[llerest Ddve Wclls Fargo Hame Mortgage. $78.464 Telephone bill l? l [-252-8593) EXHIBIT D Visitati~[~ Tim Ht sb nd is entitled [o reasonable visitations with reasonable notice of at least 24 hours in advance tn addition~ tile Husbaod is enPkled to Lbo [ollowing v s rations: Weekends: On every, other weekend [rom pick-up at 6 pm. Friday until return at 6 p.m. Sunday Summer: For £wo ;veeks, with notice by Husband to Wife no later ti;an April I of each year as to when SUllllller x isitation will be. Mod~er'sfF: ter's Day: On MoLher's Day '~;5dl the Mother and on Father's Da2, wiLh tile FaLher. regardless o[ other scherluleri visitation. Otl~er: As agreed by tile Wire. Thc Hosband shall be responsible for an related transportation expenses relating to the visitations. HUMBERTO IRIZARRY, Plaintiff VS. MILDRED E. IRIZARRY, Defendant : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION -. LAW : : NO. 02-909 CIVIL ACTION : 1N DIVORCE CERTIFICATE OF SERVICE I, Bradley L. Griffie, Esquire, hereby certify that I did, the ~&~day of ,J ~ ~' , 2003, cause a copy of Defendant/Petitioner's Petition for Rule to Show Cause to be served upon Plaintiff's attorney of record by facsimile and first class mail, postage prepaid at the following addresses: Harold S. Irwin, III, Esquire 35 East High Street Suites 201 & 202 Carlisle, PA 17013 DATE: dl re foI,,'Defendant/Petitioner ~ ASSOCIATES 200 Nforth Hanover Street Carlisle, PA 17013 (717)243-:5551 (800)347-:5552