HomeMy WebLinkAbout87-0654FREDERICK E. WEARY,
Plaintiff
vs.
BETTY C. WEARY
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSY -1„VANIA, ".
: NO: 1987 -654
: IN DIVORCE
MOTION TO TERMINATE ALIMONY
Plaintiff, Frederick E. Weary, by his attorney, Taylor P. Andrews, Esq., respectfully
represents the following in support of this Motion to Terminate Alimony in the above captioned
case:
1. Plaintiff and Defendant were divorced by a decree dated October 4, 1988 and a
copy of the Divorce Decree is attached hereto as Exhibit 1.
2. Harold S. Irwin, Esquire represented Defendant at the time of the divorce in 1988
but it is not known, even after inquiry, whether Harold S. Irwin, Esquire currently represents the
Defendant, Betty C. Weary.
3. Plaintiff and Defendant resolved the economic claims in their divorce action by a
Marital Settlement Agreement and a copy of the Marital Settlement Agreement is attached hereto
as Exhibit 2.
4. As per Section 5 of the parties' Marital Settlement Agreement Plaintiff was
ordered to pay $95 per week from the date of the divorce. This calculates to $411.67 per month.
5. The $95 weekly payment has been administered through the Cumberland County
Domestic Relations Office and paid through the Pennsylvania State Collection and Disbursement
Unit.
6. By virtue of Section 5 of the Marital Settlement Agreement the amount of
alimony was subject to modification due to changed circumstances.
7. At the time of the entry of the Alimony Order Plaintiff was 53 years of age,
employed as a supervisor at GS Electric where he received a salary of $1,371.20 every two
weeks or $35,651.00 per year or $2,971 per month.
8. Plaintiff retired from GS Electric on or about 1994. Plaintiff did not seek a
modification of his alimony at the time of his retirement because he did not realize he could do
so.
9. Plaintiff's income now consists of Social Security Retirement benefits which total
$17,854.80 per year with deductions for Medicare part B coverage in the amount of $1,258.80
and income earned at Sunday Mill Company from employment 3 days per week with estimated
annual income of $9,432.00 per year. This monthly income [after deducting the Medicare Part D
premium] is $2,169.00 per month.
10. At the time of the entry of the Alimony Order in 1988 the Defendant, Betty C.
Weary, received Social Security Disability in the amount of $495.90 per month.
11. Defendant, Betty C. Weary would now be entitled to receive a spousal social
security retirement benefit in an approximate amount of $744. Plaintiff does not know if
Defendant is receiving this benefit.
12. Due to his reduced income and own personal expenses, the Plaintiff has been
unable to service the alimony order in the amount of $95 per week and an arrearage has
developed which now totals $23,572.
13. Due to the substantially changed circumstances the Plaintiff seeks an Order
terminating the alimony in the above captioned case, or, in the alternative, a substantial reduction
in the amount of alimony in the above captioned case.
WHEREFORE, Plaintiff requests that this Court to terminate the alimony ordered in the
above referenced case.
ANDREWS & JOHNSON
P. A drews, Esquir
est Pomfret Street
Carlisle, PA 17013
(717) 243-0123
Supreme Ct. #: 15641
I verify that the statements made in the foregoing Motion to Terminate Alimony are true
and correct. I understand that false statements herein are made subject to the penalties of 18
Pa.C.S. § 4904, relating to unsworn falsification to authorities.
DATE: _IA
9 /i%
0. miX &41'17
Frederick E. Weary
'eW..*:.‹W›::XXAW''IVX.::',W>XXW.XC.UUXC<>:W.A4b1<>WX>W>.XXXIWMXK>XC:1
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
STATE OF
FREDERICK E. WEARY,
Faaintiff
Versus
BETTY C. WEARY,
Defendant
PENNA.
No. 654 CIVIL 19 87
DECREE IN
DIVORCE
AND NOW, October 4, , 19 88 , it is ordered and
decreed that FREDERICK E. WEARY , plaintiff,
and BETTY C. WEARY , 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;
NONE
4
0
By The Court:
/s/ Harold E. Sheely
Attest:
r .
, 777 .....
Deputy
P. J.
$.
Prothonotary
EXHIBIT
Certified Copy issued Oct 7, 1988
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MARITAL SETTLEMENT AGREEMENT
/57--
AGREEMENT made this day of 2-7-6/-44-4--/
1988,
between FREDERICK E. WEARY, hereinafter called Husband, and BETTY C.
WEARY, hereinafter called Wife.
WITNESSETH:
The parties hereto are Husband and Wife, having been married on
September 25, 1956, in Cumberland County, Pennsylvania. There were
two children born of this marriage: Wendy Gibinni and Cindy Bowers,
and both children are now adults.
Diverse unhappy differences, disputes and difficulties have
arisen between the parties and it is the intention of Husband and
Wife to live separate and apart for the rest of their natural lives,
and the parties hereto are desirous of settling, fully and finally,
their respective financial and property rights and obligations as
between each other, including without limitation: (1) the settling
of all matters between them relating to the ownership of real and
personal property; (2) the settling of all_matters between them
relating to the past, present and future support and/or maintenance
of Wife by Husband; (3) in general, the settling of any and all
claims and possible claims by one against the other or against their
respective estates.
NOW THEREFORE, in consideration of the premises and of the
mutual promises, covenants and undertakings hereinafter set forth
and for other good and valuable consideration, receipt of which is
EXHIBIT
2
hereby acknowledged by each of the parties hereto, Husband and
Wife, each intending to be legally bound hereby, covenant and agree
as follows:
1. Advice of Counsel. The provisions of this Agreement and
their legal effect have been fully explained to the parties by their
respective counsel, Taylor P. Andrews, Esq., for Husband, and
Harold S. Irwin III, Esq., for Wife. Each party acknowledges that
he or she has received independent legal advice from counsel of his
or her selection and that each fully understands the facts and has
been fully informed as to his or her legal rights and obligations
and each party acknowledges and accepts that this Agreement is, in
the circumstances, fair and equitable and that it is being entered
into freely and voluntarily, after having received such advice and
with such knowledge and that execution of this Agreement is not the
result of any duress or undue influence and that it is not the
result of any collusion or improper or illegal agreement or
agreements.
2. Personal Rights. Husband and Wife may and shall, at all
times hereafter, live separate and apart. Each shall be free from
all control, restraint, interference or authority, direct or
indirect, by the other in all respects as fully as if he or she were
unmarried. Each may reside at such place or places as he or she may
select. Each may, for his or her separate use or benefit, conduct,
carry on and engage in any business, occupation, profession or
employment which to him or her may seem advisable. This provision
shall not be taken, however, to be an admission on the part of
either Husband or Wife of the lawfulness of the causes which led to,
or resulted in, the continuation of their living apart. Husband and
Wife shall not molest, harass, disturb or malign each other or the
respective families of each other nor compel or attempt to compel
the other to cohabit or dwell by any means or in any manner
whatsoever with him or her.
3. Personal Property. Except as otherwise provided herein,
the parties acknowledge that they have heretofore divided between
them at the time of and since their separation, all their personal
property to their mutual satisfaction, except as otherwise stated.
Henceforth, each of them shall own, have and enjoy independently of
any claim or right of the other, all items of personal property of
every kind, now and hereafter owned, or held by him or her, with
full power to dispose of same as fully and effectively in all
respects and for all purposes as if he or she were unmarried. The
property to be transferred is as follows:
A. Garden tractor, mower and snow plow to Wife. (already
located at parties' real estate)
B. Cemetery deed to Wife
C. Ownership of existing life insurance policy on Husband's
life to be transferred to Wife (this policy is currently
maintained by dividends)
D. Bottom plow, spring and spike harrow, and disk to Husband.
4
4. Real Property. Husband and Wife acknowledge that they own
jointly two separate tracts of real estate in North Middleton
Township. The first tract consists of approximately 3.2 acres of
land and a residence currently occupied by Wife (Deed Book Reference
19Z, 321). The second tract consists of approximately 36.3 acres,
and is undeveloped (Deed Book Reference 26K, 358). There is an
existing mortgage on both tracts with a balance due of
approximately Twenty -Two Thousand Dollars ($22,000.00).
Husband and Wife hereby agree to make the following
transfers and payments to divide their real estate as part of the
total equitable distribution of their marital property.
Husband agrees to transfer title of the smaller tract and
residence to Wife, and Wife agrees to transfer title of the larger
tract to Husband. Additionally, Husband agrees to make payment of
Twenty -Two Thousand Dollars ($22,000.00) to Wife, and Husband
assumes primary responsibility for the joint mortgage on the real
estate, and Husband hereby agrees to indemnify Wife and hold Wife
harmless from any loss or expense associated with the mortgage.
Additionally, Husband agrees to pursue replacement financing for the
existing mortgage which will enable Husband to have Wife's name
removed from the mortgage on the smaller tract passing to Wife.
The transfers and payments referenced herein shall occur at
settlement which shall be scheduled within sixty (60) days of the
date of this Agreement.
Husband shall prepare general warranty deeds to accomplish
each of the referenced transfers.
5
5. Alimony /Support. Husband and Wife acknowledge that there
is an existing Court Order for spousal support entered at 185
Support 1987 (DR 14,256) which directs Husband to pay Wife Ninety -
Five Dollars ($95.00) per week. Husband and Wife acknowledge that
the support order shall be terminated upon divorce. Husband and
Wife hereby agree that maintenance payments from Husband to Wife
shall continue at Ninety -Five Dollars ($95.00) per week as alimony
after divorce, and Husband and Wife each acknowledge that such
amount is fair and proper under existing circumstances. Husband and
Wife each acknowledge that the amount of alimony payments is subject
to increase or decrease as ordered by the Cumberland County Court
due to changed circumstances. Husband and Wife also acknowledge
that Husband cannot provide medical insurance coverage for Wife
after divorce. Husband shall receive a credit for all payments made
after divorce for insurance and taxes on the premises transferred to
Wife.
6. Divorce Action. Husband and Wife agree that Husband shall
proceed to obtain a divorce decree pursuant to Section 201(c) of the
Pennsylvania Divorce Code, and Husband and Wife agree to promptly
file the necessary consent forms for such decree to be entered. If
Wife fails to execute and file a consent form as provided herein,
Wife acknowledges that Husband shall proceed to obtain a divorce
decree pursuant to Section 201(d) of the Pennsylvania Divorce Code.
Husband and Wife agree to pay their own attorney's fees associated
with the divorce action.
6
7. Liabilities. Husband and Wife each covenant, warrant,
represent and agree that each will now and at all times hereafter
save harmless and keep the other indemnified from all debts, charges
and liabilities incurred by the other after the effective date of
this Agreement, except as may be otherwise specifically provided for
by the terms of this Agreement.
Additionally, Wife hereby agrees to indemnify Husband and
save Husband harmless from all loss, cost or expense related to the
existing debt to Wife's mother and father. Wife shall secure a
release of Husband from the referenced debt by such time as
settlement shall occur on the parties' real estate.
8. Mutual Release. Husband and Wife each do hereby remise,
release, quitclaim and forever discharge the other and the estate of
such other, for all time to come, and for all purposes whatsoever,
of and from any and all rights, titles and interests, or claims in
or against the property (including income and gain from property
hereafter accruing) of the other or against the estate of such
other, of whatever nature and wheresoever situate, which he or she
now has or at any time hereafter may have against such other, the
estate of such other or any part thereof, whether arising out of any
former acts, contracts, engagements or liabilities of such other or
by way of dower or curtesy, or claims in the nature of dower or
curtesy or widow's or widower's rights, family exemption or similar
7
allowance, or under the intestate laws, or the right to take against
the spouse's will; or the right to treat a lifetime conveyance by
the other as testamentary, or all other rights of a surviving spouse
to participate in a deceased spouse's estate, whether arising under
the laws of (a) Pennsylvania, (b) any State, Commonwealth or
territory of the United States, or (c) any other country, or any
rights which Wife may have or at any time hereafter have for
alimony pendente lite, counsel fees, costs or expenses, whether
arising as a result of the marital relation or otherwise, except,
and only except, all rights and agreements and obligations of
whatsoever nature arising or which may arise under this Agreement or
for the breach of any thereof. It is the intention of Husband and
Wife to give to each other by the execution of the Agreement a full,
complete and general release with respect to any and all property of
any kind or nature, real, personal or mixed, which the other now
owns or may hereafter acquire, except and only except all rights and
agreements and obligations of whatsoever nature arising or which may
arise under this Agreement or for the breach of any thereof,
subject, however, to the implementation and satisfaction of the
conditions precedent as set forth herein above.
9. Other Documentation. Husband and Wife covenant and agree
that they will forthwith (and within at least thirty (30) days after
demand therefor) execute any and all written instruments,
assignments, releases, satisfactions, deeds, notes or such other
writings as may be necessary or desirable for the proper
8
effectuation of this Agreement, and as their respective counsel
shall mutually agree should be so executed in order to carry out
fully and effectively the terms of this Agreement.
10. Successors' Rights and Liabilities. This Agreement shall,
except as otherwise provided herein, be binding upon and inure to
the benefit of the parties hereto, their respective heirs,
executors, administrators, successors or assigns.
11. Entire Agreement. Husband and Wife do hereby covenant and
warrant that this Agreement contains all of the representations,
promises and agreements made by either of them to the other for the
purposes set forth in the preamble hereinabove; that there are no
claims, promises or representations not herein contained, either
oral or written, which shall or may be charged or enforced or
enforceable unless reduced to writing and signed by both of the
parties hereto; and the waiver of any term, condition, clause or
provision of this Agreement shall in no way be deemed to be
considered a waiver of any other terms, conditions, clauses or
provisions of this Agreement.
12. Binding Effect of Agreement. This Agreement shall remain
in full force and effect unless and until terminated under and
pursuant to the terms of this Agreement. The failure of either
party to insist upon strict performance of any of the provisions of
•a
9
this Agreement shall not be construed as a waiver of any subsequent
default of the same or similar nature.
13. Separability. If any term, condition, clause or provision
of this Agreement shall be determined or declared to be void or
invalid in law or otherwise, then only that term, condition, clause
or provision shall be stricken from this Agreement and in all other
respects this Agreement shall be valid and continue in full force,
effect and operation. Likewise, the failure of any party to meet
his or her obligations under any one or more of the paragraphs
herein, with the exception of the satisfaction of the conditions
precedent, shall in no way avoid or alter the remaining obligations
of the parties.
14. Headings. Any headings preceding the text of the several
paragraphs and subparagraphs hereof are inserted solely for
convenience of reference and shall not constitute a part of this
Agreement nor shall they affect its meaning, construction or effect.
15. Effective Date. The effective date of this Agreement
shall be the date upon which it is executed.
16. Controlling Law. This Agreement shall be construed in
accordance with the laws of the Commonwealth of Pennsylvania.
10
IN WITNESS WHEREOF, the parties hereto have set their hands and
seals the day and year first above written.
Frederick E. Weary
O
Betty C. Wea47/
11
COMMONWEALTH OF PENNSYLVANIA)
SS.
COUNTY OF CUMBERLAND
On this, the f day of i,'1. - 1988
before me, the subscriber, a Notary Public' "for the Commonwealth of
Pennsylvania, residing in the County of Cumberland, personally
appeared, Frederick E. Weary, and in due form of law acknowledged
the above Agreement to be his act and deed and desired the same to
be recorded as such.
COMMONWEALTH OF PENNSYLVANIA)
SS.
COUNTY OF CUMBERLAND )
On this, the /61 day of
before me, the subscriber,
Pennsylvania, residing in
appeared, Betty C. Weary,
above Agreement to be her
recorded as such.
N Lary Public
TAYLOR P. ANDREWS, NOTARY PUBLIC
CARLISLE BOROUGH, CUMBERLAND COUNTY
MY co VINO N rrl :c :S DEC, 23, 1991
Member, Penasy,ie:.te .t,: :01;iition of Notaries
(L(0— , 1988,
a Notary Public for t Commonwealth of
the County of Cumberlan , personally
and in due form of law acknowledged the
act and deed and desired the same to be
_24 1 tn-Okii 1,4M
Public
Not
DEM A. M R ISSN, NOTARY Y PiJi3LUC
CARUSLE DO O, CIRCEi Lif1i: COUNTY
MY Caft4MISSIGN EXPIRES DEC. 15, 15€8
Member, Pennsylvania Association of Notaries
FREDERICK E. WEARY,
Plaintiff
VS.
BETTY C. WEARY
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO: 1987-654
: IN DIVORCE
CERTIFICATE OF SERVICE
I hereby certify that on this date,
, 2014, I mailed a copy of
Motion to Terminate Alimony to the following person at the following address by regular U.S.
Mail and by certified mail, postage prepaid, return receipt requested, delivered to addressee only:
Betty C. Weary
50 Grantham Road
Mechanicsburg, PA 17050
I also mailed a copy of this petition to the following person by first class mail:
Harold S. Irwin, Esquire
64 South Pitt Street
Carlisle, PA 17013
(attorney of record in 1988)
I verify that the statements made in the foregoing Certificate of Service are true and correct.
I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904,
relating to unsworn falsification to authorities.
P. drews, Esq.
eys for Plaintiff
W. Pomfret Street
Carlisle, PA 17013
(717) 243-0123
FREDERICK E. WEARY, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
VS.
BETTY C. WEARY
Defendant
: NO: 1987-654
: IN DIVORCE
ORDER
• j
AND NOW, this 3 day of L , 2014 in consideration of the attached
Motion to Terminate Alimony a hearing is hereby scheduled to be held in Courtroom No:
4-141- "t4t
Cumberland County Courthouse, Carlisle, Pennsylvania on the ( day of
irk , 2014 at P5O o'clock P m. The Court will take evidence pertaining to
this Motion at the time of the hearing and thereafter render a decision.
cc: Betty C. Weary
50 Grantham Road
Mechanicsburg, PA 17050
Harold S. Irwin, Esquire
64 South Pitt Street
Carlisle, PA 17013
(attorney of record in 1988)
...../6-y1or P. Andrews, Esquire
78 West Pomfret Street
Carlisle, PA 17013
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FREDERICK E. WEARY, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
vs.
BETTY C. WEARY
Defendant.
: NO: 1987 -654
: IN DIVORCE
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA )
COUNTY OF CUMBERLAND
AND NOW, this a ( day of April 2014, I, Taylor P. Andrews, Esquire, attorney for Frederick
E. Weary, Plaintiff in the above - captioned action, hereby swear that I have served a copy of the attached
Order, upon the Defendant at PO Box 349, Grantham, PA 17027, by depositing the same in the U.S. Mail,
postage prepaid.
I verify that the statements made in the foregoing Certificate of Service are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to
unsworn falsification to authorities.
Bv:
ANDREWS & JOHNSON
‘11f0-, _
Or m P. Tire
eys for Plaintiff
78 W. Pomfret Street
Carlisle, PA 17013
(717) 243 -0123
FREDERICK E. WEARY, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
vs.
BETTY C. WEARY
Defendant
: NO: 1987 -654
: IN DIVORCE
ORDER
AND NOW, this 3 day of p21 , 2014 in consideration of the attached
Motion to Terminate Alimony a hearing is hereby scheduled to be held in Courtroom No: 3
Cumberland County Courthouse, Carlisle, Pennsylvania on the / day of
I , 2014 at /'7 0 o'clock P.m. The Court will take evidence pertaining to
this Motion at the time of the hearing and thereafter render a decisi
cc: Betty C. Weary
50 Grantham Road
Mechanicsburg, PA 17050
Harold S. Irwin, Esquire
64 South Pitt Street
Carlisle, PA 17013
(attorney of record in 1988)
Taylor P. Andrews, Esquire
78 West Pomfret Street
Carlisle, PA 17013
Zr
t
M
J.
3
FREDERICK E. WEARY, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
vs.
BETTY C. WEARY
: NO: 1987 -654
Defendant : IN DIVORCE
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
70'7 (.71H11
xi
C),
sa o -r;
AND NOW, this . I #4" day of April 2014, I, Taylor P. Andrews, Esquire, attorney for Frederick
E. Weary, Plaintiff in the above - captioned action, hereby swear that I have served a true copy of the Motion
to Terminate Alimony, upon the Defendant at PO Box 349, Grantham, PA 17027, by depositing the same in
the U.S. Mail, postage prepaid, certified, return receipt requested and regular mail. A copy of the return
receipt card signed by the Defendant on April 17, 2014, indicating service was effected, is marked Exhibit
"A ", attached hereto and made a part hereof.
Sworn d subscribed to before me this
04t s day of=pri120
ANDREWS & JOHNSON
Bv:
Not bli
COMMONWEALTH OF P
NSYLVANIA
NOTARIAL SEAL
SHELLY SEXTON, Notary Public
Carlisle Boro, Cumberland County
My Commission Expires April 26, 2015
or P. drews, Esq.
ttorney for Plaintiff
SENDER: COMPLETE THIS SECTION
• Complete items 1, 2, and 3. Also complete
Item 4. if Restricted Delivery Is desired.
• Print your name and address on the reverse
so that we can return the card to you.
• Attach this card to the back of the mailpiece,
or on the front if space permits.
cle Addressed to:
Friy c_ wak-Ry
0)( 3c
R NY-di m■N, c)
t10-2:1
COMPLETE THIS SECTION ON DELIVERY
A.
natu
B. Received
Agent
0 Addressee
by (Printed Name) I C. Date of Delivery
C ix) e_of y
D. Is delivery address different from item 1? 0 Yes
If YES, enter delivery address below: 0 No
3. Se Ice Type
edified Mall
tI Registered
0 Insured Mail
Fepress Mall
etum Receipt for Merchandise
C.O.D.
4. Restricted Delivery? (Extra Fee)
Yes
2. Article Number IT T • !,t
1" 1
7010 1'060'00 11'045' 8239
(Transfer from serene label)
I PS Form 3811, February 2004
Domestic Return Receipt 102595-02-M-1540
Exhibit A
FREDERICK E. WEARY, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. NO. 1987-654 CIVIL TERM
BETTY C. WEARY,
Defendant IN DIVORCE
ORDER OF COURT
AND NOW, this 9th day of May, 2014, after
hearing, the Plaintiff's Petition to Terminate Alimony is
granted. Alimony payments are terminated effective March 31,
2014. Plaintiff is ordered and directed to pay not less than
$250.00 per month toward existing arrears. This Order is to be
enforced by the Cumberland County Domestic Relations Office.
By the Court,
Edward E. Guido, J.
/Taylor P. Andrews, Esquire
For the Plaintiff
„/ Betty C. Weary
c/o Wendy Sue Gambini
411 East Cherry Street
Elizabethtown, PA 170221
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