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HomeMy WebLinkAbout01-5451 II , JOHN E. GOUGHENOUR, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. {j1-/5'-/S / C;VI \ BAC T. GOUGHENOUR Defendant CIVIL ACTION - LAW 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 may proceed without you, and a decree of divorce or annulment may be entered against you by the court. A jUdgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary at the Dauphin County Courthouse, HarriSburg, Pennsylvania. 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 THE OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association Two Liberty Avenue CarliSle, PA 17013 (717) 249-3166 " JOHN E. GOUGHENOUR, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. No. O/~ (')Lj,5! C\J; \ CIVIL ACTION - LAW IN DIVORCE BAC T. GOUGHENOUR Defendant AVISO PARA DEFENDER Y RECLAMAR DERECHOS USTED HA SIDO DEMANDADO EN LA CORTE. Si desea defenderse de las quejas expuestas en las paginas sigientes, debe tomar accion con prontitud. Se le avisa que si no se defiende, el caso puede pro ceder sin usted y decreto de di vorcio 0 anulamiento puede se emitido en su contra por la Corte. Una decision puede tambien se emitida en su contra por cualquier otra queja 0 compensacion reclamados por el demandante. Usted puede perder dinero, 0 propiedades, 0 otros derechos importantes para usted. Cuando la base para el divorcio es indignidades 0 rompimiento irreparable del matrimonio, usted puede solicitar consejo matrimonial. Una lista de consejeros matrimoniales esta disponible en la oficina del Prothonotario, en la Dauphin County Courthouse, Harrisburg, Pennsylvania. SI USTED NO RECLAMA PENSION ALlMENTICIA, PROPIEDAD MARITAL, HONORARIOS DE ABOGADO 0 OTROS GASTOS ENTES DE QUE EL DECRETO FINAL DE DIVORCIO 0 ANULAMIENTO SE EMITIDO, USTED PUEDE PERDER EL DERECHO A RECLAMAR CUALQUIERA DE ELLOS. USTED DEBE LLEVAR ESTE PAPEL A UN ABOGADO DE INMEDIATO. SI NO TIENE 0 NO PUEDE PAGAR UN ABOGADO, VAYA 0 LLAME A LA OFICINA INDICADA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association Two Liberty Avenue Carlisle, PA 17013 (717) 249-3166 II I JOHN E. GOUGHENOUR, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. Of - S--;Sf {'tV 1/ CIVIL ACTION - LAW IN DIVORCE BAC T. GOUGHENOUR Defendant COMPLAINT IN DIVORCE UNDER SECTIONS 3301(c) or 3301 (d) OF THE DIVORCE CODE The Plaintiff, John E. Goughenour, through his attorneys, The Law Offices of Patrick F. Lauer, Jr., makes the following Complaint in Divorce and, in support thereof, avers as follows: 1. The Plaintiff, John E. Goughenour, is an adul t individual who currently resides at 4181 Elk Court, Apartment 101, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. The Defendant, Bac T. Goughenour, is an adult individual who currently resides at 6107 Hayrnarket Way, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. The Plaintiff is a bona fide resident of the Commonwealth of Pennsylvania and has been for at least six months immediately prior to the filing of this Complaint. COUNT I - DIVORCE 4. Paragraphs one through three are incorporated herein by reference. 5. The Plaintiff and the Defendant were married on August 23, 1980, at Monessen, Westmoreland County, Pennsylvania. 6. There have been no prior actions of di vorce or for annulment between the parties. 7. The marriage is irretrievably broken. II !i 8. The Plaintiff has been advised that counseling is available and that the Plaintiff may have the right to request that the court require the parties to participate in counseling. 9. This action is not collusive. 10. There are no minor children to the marriage. 11. Plaintiff requests the court to enter a decree of divorce. COUNT II-EOUITABLE DISTRIBUTION 12. Paragraphs one (1) through eleven (11) are incorporated herein by reference as if set forth specifically below. 13. The parties have legally and beneficially acquired property, both real and personal, during their marriage. 14. The Plaintiff and the Defendant have been unable, as of the date of this Complaint, to agree as to an equitable division of said property. WHEREFORE, the Plaintiff, John E. Goughenour, respectfully requests this Honorable Court to enter a decree of divorce in this matter; and the Plaintiff further requests the Court to equitably divide all marital property and to enjoin it from being removed, disposed of, alienated, sold, or otherwise encumbered pending final hearing and settlement of all claims. The Plaintiff further requests the Court to incorporate any Stipulation reached by the parties regarding the division of marital property into the divorce decree; or, should the parties fail to reach such an agreement, to equitably divide all marital property. Date: Respectful y submitted, --- 9//3/2001 II JOHN E. GOUGHENOUR, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. No. BAC T. GOUGHENOUR Defendant CIVIL ACTION - LAW IN DIVORCE 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. ~ 4904, relating to unsworn falsification to authorities. Date: '1-/..7-0/ Signature: ().L ~~~~ ~ohn E. e ur nQo ~l ~ ff, ~ ~ 0(:) -() -&. dO ~ ~~:F.? f.~OI ~F >~ .- ~ -<9- (}l...$ 1~11 ) 3 (~J +~ID ) ~~ ,0 "---, .~ c:.,,- c C. u~ > --; cS ;:::-- ~ ~ ~ "U 11) "0 '-......J "D 1.() \F\ '0- -~ ~ \n ~ (-(, ~ '~ .~ -~ ~ c<". ~ ?;: -" .. ('; ~.~,<~ _.) :.- ::.~l ~~. '~ '- \..._~ ro ~ ~ ... c:i~ ~ = ~ bfJO 0 ~~ t: r::: ~ 0 <....Vl:E~~ -., = tl oS ll.< M ~ ~ -e: l:Q .-:;e r~. ~ C':I u :-::: "'C:EOU:cr:::- ~S.OONo..~ U.s;::<~- """"..... N U ~< ~ i:l.< . , JOHN E. GOUGHENOUR, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. : NO: 01-5451 : CIVIL ACTION - LAW BAC T. GOUGHENOUR : IN DIVORCE Defendant. ANSWER TO DIVORCE COMPLAINT WITH COUNTERCLAIM AND NOW, comes the Defendant, Bac T. Goughenour, by and through her attorneys, Mancke, Wagner & Spreha, and files the following Answer to the Divorce Complaint: COUNT I - DIVORCE 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. COUNT II - EOUITABLE DISTRIBUTION 12. Admitted. 13. Admitted. 14. Admitted. COUNT m - ALIMONY 15. Answers to Paragraphs 1 - 14 incorporated and hereby referenced. 16. Plaintiff has sufficient funds, and the Defendant is in need of Alimony. WHEREFORE, Defendant requests the Court to order Plaintiff pay Alimony unto the Defendant. COUNT IV - COUNSEL FEES 17. Answers to Paragraphs 1 - 16 incorporated and hereby referenced. 18. Defendant does not have sufficient funds in order to defend the Divorce Action and therefore requests the Court to direct that she be reimbursed counsel fees. -2- WHEREFORE, Defendant requests the Court to direct the Plaintiff to pay the counsel fees of the Defendant. Respectfully submitted, Mancke, Wagner & Spreha By I P. Richard Wagner, Esquire I.D. #23103 2233 North Front Street Harrisburg, P A 17110 (717) 234-7051 Attorneys for Defendant Date: September 23,2003 -3- .' VERIFICATION I verify that the statements made in the foregoing document 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. ~ <( ~ S-e.-pt Q 0 ;( 603 DATE: CERTIFICATE OF SERVICE I, P. Richard Wagner, of MANCKE, WAGNER, and SPREHA, do hereby certify that I am this day serving a copy of the foregoing document to the following persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing the same in the United States Mail, Harrisburg, Pennsylvania, with first class postage, prepaid, and addressed as follows: Marvin L. Markley, Esquire 2108 Market Street Camp Hill, PA 17011 /'" lcha Wagner, ~e MANCKE, WAGNER, & SPREHA 2233 North Front Street Harrisburg, PA 17110 Attorneys for Defendant DATE: September 24, 2003 ~ ..... ~ JJ ~ C':::> 1i L ~ -0 (") ,_",.0 ~ w :2 CO :;..., ty["n rT1 Z r~: -0 CfJ;''' r-.,J r=':(< U) <~ ~C' "';'0 '-C Z =< C-.J Q 11 ~? "or; ~Jl ~ _X ~ ::-:1 ;<1 ~~~,~ r:~i-n ---J ~ -< JOHN E. GOUGHENOUR, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. No. 01-5451 Civil BAC T. GOUGHENOUR Defendant CIVIL ACTION - LAW IN DIVORCE PETITION FOR ALLOWANCE OF ENTRY UPON MARITAL PROPERTY FOR A PHYSICAL INSPECTION AND APPRAISAL 1. Petitioner is, John E. Goughenour, Plaintiff in the above- captioned divorce action. 2. Respondent is Bac T. Goughenour, Defendant in the above- captioned divorce action. 3. Petitioner and Respondent are the owners of real estate and personal property which are marital property. 4. The marital assets are substantial in value and need to be appraised. 5. Respondent has been in exclusive possession of real estate and its contents since the parties separated in September 2001. 6. Petitioner requests allowance to inspect, appraise, photograph and/or videotape the premises. 7. Without the opportunity for Petitioner and/or his representative(s) to inspect and appraise the premises, his ability to present fully the relevant testimony in the equitable distribution proceedings will be impaired. 8. Petitioner has requested respondent to provide petitioner with dates and times that she would allow an appraisal to be done. 9. Respondent has not provided Petitioner with any dates and times that she would allow an appraisal to be done. WHEREFORE, Petitioner requests that this Court enter an Order granting the Petition for Allowance of Entry Upon Marital Property for a Physical Inspection and Appraisal. ".2. 0-2w4 Date: ~ JOHN E. GOUGHENOUR, Plaintiff ; IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA YS. : No. 01-5451 Civil BAC T. GOUGHENOUR Defendant : CNIL ACTION - LAW : IN DNORCE VERIFICATION I verify that the statements made in this PETITION FOR ALLOWANCE OF ENTRY UPON MARITAL PROPERTY FOR A PHYSICAL INSPECTION AND APPRAISAL 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: Y-~o-aY Signature: L:k" ~/~ ~:l. gh our JOHN E. GOUGHENOUR, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA vs. : No. 01-5451 Civil BAC T. GOUGHENOUR Defendant : CNIL ACTION - LAW : IN DNORCE CRRTTFTC'A TR OF SRRVTCE I, Marlin 1. Markley, Esquire, hereby certifY that on the below-noted date, served a true and correct copy of the foregoing Petition for Allowance of Entry Upon Marital Property for a Physical Inspection and Appraisal upon the following named counsel by depositing same, postage prepaid, in the United States Mail, addressed as follows: P. Richard Wagner, Esquire 2233 North Front Street Harrisburg, P A 1711 0 . arlin 1. arkley, Esquire 2108 Mar et Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID#84745 Tel.(717)763-1800 Date: t/-Z0-200t/ ("") c Z ~tj:.l en :Cl (;;5,: "<c .<:;; r:" f ;.::: 2;("') -q )>c: ~ .-.. <::> = .r- """ -.;.J :::u N N ~ ~j;; ~6 :r-r, -c b~S 3 6M ~ .-< ~ w =< 0'\ JOHN E. GOUGHENOUR, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BAC T. GOUGHENOUR, Defendant NO. 01-5451 CIVIL TERM ORDER OF COURT AND NOW, this 29th day of April, 2004, upon consideration of Plaintiffs Petition for Allowance of Entry upon Marital Property for a Physical Inspection and Appraisal, a Rule is hereby issued upon Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, ""arlin L. Markley, Esq. 2108 Market Street Aztec Building Camp Hill, PA 17011-4706 Attorney for Plaintiff A. Richard Wagner, Esq. 2233 North Front Street Harrisburg, PA 17110 Attorney for Defendant '/ / I I' f ,-! '", i rf';/ / (-' ( ,{ L-,.~(2/ . f t- LWesley Oler,':r ., J. ;' ~ ~ Oy-;tq- oll :rc 'tIN'vl\lASNNOld AJ.Nnc(I c;\r))J~3VJm as: 1/ WV 6Z NdV ~ooz AW10NOH10C:id 3HL :/0 30I:1;1Q-031l.:! JOHN E. GOUGHENOUR, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : No. 01-5451 Civil BAC T. GOUGHENOUR Defendant : CNIL ACTION - LAW : IN DNORCE NOTTC'F. TO OFFRNIl A NIl CI.A 1M Rlr.HTS 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 of divorce or annulment may be entered against you by the court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary at the Cumberland County Courthouse, Carlisle, Pennsylvania. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DMSION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DNORCE 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 THE OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHJi<:RE YOU CAN GET LEGAL HELP. Cumberland County Bar Association Two Liberty Avenue Carlisle, P A 17013 (717) 249-3161. JOHN E. GOUGHENOUR, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLV AN1A vs. : No. 01-5451 Civil BAC T. GOUGHENOUR Defendant : CIVIL ACTION - LAW : IN DIVORCE pF.TlTlON FOR C'OlJNSF.I. FKRS AND NOW, comes the Plaintiff, John E. Goughenour, through his attorneys, The Law Offices of Patrick F. Lauer, Jr., LLC, and files the following Petition for Counsel Fees: 1. The Plaintiff, John E. Goughenour, is an adult individual who currently resides at 4181 Elk Court, Apartment 101, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. The Defendant, Bac T. Goughenour, is an adult individual who currently resides at 6107 Haymarket Way, Mechanicsburg, Cumberland County, Pennsylvania 17050. C'OlJNT V _ PI .UNTIF'F'S COlJNSF.I. F'F.F.S 3. PetitionerlPlaintiffincorporates the allegations of paragraphs one (1) through two (2) by reference as if set forth at length herein. 4. Plaintiff avers that throughout the course of this litigation Defendant's conduct has been dilatory, obdurate, and vexatious as a result Plaintiff has incurred counsel fees. WHEREFORE, Plaintiff, John E. Goughenour, respectfully requests this Honorable Court to direct the Defendant to pay the counsel fees of the Plaintiff. Date: (; - 2 f'.,CO()4- >f'~ arkley, Esquire Law Offi~es of Patrick F. Lauer, Jr. 2108 Market Street, Aztec Building Camp HilI, Pennsylvania 17011-4706 ID# 84745 Tel. (717) 763-1800 JOHN E. GOUGHENOUR, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : No. 01-5451 Civil BAC T. GOUGHENOUR Defendant : CIVIL ACTION - LAW : IN DIVORCE VRRTFTCA TT01S: I verify that the statements made in this Petition for Counsel Fees 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: 0 -eVE-ay Signature:9~ ~~ ~ t:? John E. ou enour JOHN E. GOUGHENOUR, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : No. 01-5451 Civil BAC T. GOUGHENOUR Defendant : CIVIL ACTION - LAW : IN DIVORCE CERTIFICATE OF SERVICE I, Marlin L. Markley, Esquire, hereby certify that on the below-noted date, served a true and correct copy of the foregoing Petition for Counsel Fees upon the following named counsel by depositing same, postage prepaid, in the United States Mail, addressed as follows: P. Richard Wagner, Esquire 2233 North Front Street Harrisburg, PAl 711 0 .--- . Markley, Esquire 2108 ket Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 84745 Tel. (717) 763-1800 Date: (; -2g-2DrJ f 0 ,..., 0 C;;~> :=-..:: = " .c- '. c_ ...... c: ::1: " 111 F -(1 fll r,) ~":J ~) 0.,) :.-{ " u -~) ~G '") !-\"j . ".) (Jl W II JOHN E. GOUGHENOUR, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : No. 01-:5451 Civil BAC T. GOUGHENOUR Defendant : CIVIL ACTION - LAW : IN DIVORCE DEFENDANT'S WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A Dl[VORCE DECREE UNDER SECTION 3301(c) OF THE DIVORCE CODE 1. I consent to the entry of a final decree of divorce without notice. 2. I understand that 1 may lose rights concerning alimony, division of property, lawyer's fees, or expenses if! do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the prothonotary. 4. 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. S 4904 relating to unsworn falsification to authorities. Date: .2 - IO-Os'" x~ ~ Signature: Bac T. Goughenour -,- f':': 1,(") c .~, .1 , , .~ L.'._ .' C) II JOHN E. GOUGHENOUR, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : No. 01-:5451 Civil BAC T. GOUGHENOUR Defendant : CIVIL ACTION - LAW : IN DIVORCE DEFENDANT'S AFFIDAVIT OF CONSENT UNDER SECTION 3301(c) OF THE DIVORCE CODE I. A complaint in divorce under Section 3301(c) of the Divorce Code was filed on September 18, 200 I. 2. The marriage of the Plaintiff and the Defendant is irretrievably broken and ninety days have elapsed from the date of the filing and service of the Complaint. 3. I consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. 4. 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. 9 4904 relating to unsworn falsification to authorities. D - &-10- oS' ate: - ~ fru Signature: Bac T. Goughenour .i\ " \~'~} , ;\ C;-, .-------- II JOHN E. GOUGHENOUR, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. : No. 01-5451 Civil BAC T. GOUGHENOUR Defendant CIVIL ACTION - LAW IN DIVORCE PLAINTIFF'S AFFIDAVIT OF CONSENT UNDER SECTION 3301(c) OF THE DIVORCE CODE I. A complaint in divorce under Section 3301(c) of the Divorce Code was filed on September 18, 200 I. 2. The marriage of the Plaintiff and the Defendant is irretrievably broken and ninety days have elapsed from the date of filing and service of the Complaint. 3. I consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. 4. 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. S 4904 relating to unsworn falsification to authorities. Date: r:f?- /0,- os'- S. A~~ 19nature: -".;>0- _ ohnRo ghenour ..:5 .-:'J~ -- ..- ,..r\ \.-,j \.I,," l'-'_'" ---------- II JOHN E. GOUGHENOUR, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : No. 01-5451 Civil BAC T. GOUGHENOUR Defendant : CIVIL ACTION - LAW : IN DIVORCE PLAINTIFF'S WAIVER OF NOTIICE OF INTENTION TO REQUEST ENTRY OF A D][VORCE DECREE UNDER SECTION 3301(c) OF THE DIVORCE CODE 1. I consent to the entry of a final decree of divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees, or expenses in do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediatdy after it is filed with the prothonotary. 4. 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. S 4904 relating to unsworn falsification to authorities. Date: cJ-/o -05 . ~~~~ SIgnature: .( . John 1f.~ enour _0<; -.. - - \..',-- (. c:.:::\ -~ l'- \.,r:> ,;... .~ I;,,'> t;,...') ------ . . JOHN E. GOUGHENOUR, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 01 - 5451 CIVIL BAC T. GOUGHENOUR, Defendant IN DIVORCE MASTER'S REPORT Proceedings held before E. Robert Elicker, II, Divorce Master 9 North Hanover Street, Carlisle, PA 17013 proceedings held on February 10, 2005, commencing at 9:00 a.m. APPEARANCES: Marlin L. Markley Attorney for Plaintiff P. Richard Wagner At:torney for Defendant . . PROCEDURAL HISTORY A complaint in divorce was filed on September 18, 2001, raising grounds for divorce of irretrievable breakdown of the marriage and a claim for equitable distribution. A counterclaim was subsequently filed on September 29, 2003, by the wife raising claims for alimony and counsel fees. The husband also raised a claim for counsel fees on June 28, 2004. With respect to grounds for divorce, the parties have signed and filed affidavits of consent and waivers of notice of intention to request entry of divorce decree so that the divorce can be concluded under Section 330 I (c) of the Domestic Relations Code. The Master was appointed on August 29,2003, at which time the Master asked counsel to certify that discovery was complete. A directive for pretrial statements was issued on June 2, 2004, said statements being due June 28, 2004. A pre-hearing conference with counsel was held on July 30, 2004, followed by additional conferences which included the parties. None of the conferences resulted in resolution of any ofthe issues although the Master had requested that counsel prepare a stipulation regarding the real estate and the 401 (k) and thrift savings plan. It was not until the hearing on February 10, 2005, that the parties were able to enter into an agreement as to values which involved cash accounts, the 40 I (k) and the thrift savings plan. However, at no time did the Master receive any formal stipulations from the parties regarding the identification and valuation of assets prior to the hearing. Following the Master's hearing, the Master allowed the record to remain open for counsel to present updated pension values. Counsel were also directed to 1 . . prepare spreadsheets on the economic issues. By letter from the Master, February 18, 2005, the Master directed the spreadsheets to be completed and forwarded to the Master by February 28, 2005. In that correspondence, the Master also advised counsel that the transcript had been previously completed and was available. Counsel, however, took upon themselves the schedule of providing the spreadsheets, and by letter indicated that wife's spreadsheet and proposed finding offacts would be submitted on or before March 19, 2005, and husband would have an additional ten (10) days from that date to submit his review of the assets and valuations. The Master finally received husband's spreadsheet on March 24, 2005. Having received the final submissions from counsel, the Master proceeded to prepare his report and recommendations. FINDINGS OF FACT I. The parties were married on August 23, 1980, and separated September 7, 200 I, when husband left the marital residence. This is the first marriage for both parties. 2. The parties are the natural parents of two children, both of whom are emancipated. The daughter is a college graduate and lives and works in Manhattan, New York; the son lives with wife having previously attended college but did not obtain a degree. The record was not clear as to the current status of the son regarding employment and plans for his continuing education. 3. Husband is 46 years of age and resides at 4181 Elk Court, Apartment 101, Mechanicsburg, Cumberland County, Pennsylvania. 4. Husband has a Bachelor of Arts Degree from California State University of Pennsylvania in Administration and Management. He is employed as a manager at High Mark Blue Shield and his net monthly income is $5,042.00. 2 . . 5. Pursuant to a spousal support order, husband pays wife the sum of$543.00 per month. 6. Wife is 46 years of age and resides at 6107 Hay Market Way, Mechanicsburg, Cumberland County, Pennsylvania, where she resides in the marital residence which the parties purchased June 19, 1988. 7. Wife is a graduate of California State University of Pennsylvania with a Bachelors degree in Math and Computer Science. She is currently employed at the Naval Supply Facility in Mechanicsburg as a computer specialist. She has been employed with the United States Government for over 20 years and her net monthly income currently is $3,549.00. 8. Neither party has reported any health issues. 9. Husband is Caucasian of American descent; wife is of South Vietnamese descent. 10. The marital residence is free of any mortgage liens or other debt. The rental value for the home is $1,275.00 per month. Through April 2005, wife will have resided in the home for a period of 43 months, since the date of separation when husband left. II. Wife's expenditures during the course of her occupancy in the marital home since separation which are deductible from the rental value assessment are as follows: Real estate taxes $ 6,450.00 Insurance premiums 331.50 TOTAL $ 6,781.50 Wife claims that she is entitled to also deduct home improvements in the amount of$I,085.00. However, plumbing repairs and the replacement of the garage-door opener were essentially maintenance items, not home improvements. The appraisals of the parties would have taken into account a functioning plumbing system and an operable garage-door opener. 12. The marital estate consists of the following assets with each asset valued as follows: Marital residence at 6107 Hay Market Way Mechanicsburg, Cumberland County, Pennsylvania $196,350.00 3 . . Husband's pension with High Mark Blue Shield 92,897.00 Wife's pension with FERS 79,945.00 Husband's 40 1 (k) plan 159,268.00 Wife's thrift savings plan 93,657.00 Citizens Mutual Fund 2,331.00 Member's 1st checking account (the value of the account has been reduced by $2,900.00 paid around the time of separation on a personal savings loan, a marital debt) 545.00 Member's 1st savings account 43.00 TOTAL $625,036.00 13. With respect to household tangible personal property, husband has requested that the items set forth on his Exhibit NO.1 be returned to him; with respect to the balance of the household tangible personal property, husband has agreed that wife can retain all of the property currently in the marital home. Wife likewise asked for the return of some items from husband as set forth on her Exhibit No.2. 14. The parties' marital debt consists of the following with the notation of which party is responsible for the debt noted: Personal Service Loan - Wife $ 6,897.84 MasterCard, No. 3231- Wife 1,861.59 MasterCard, No. 3238 - Husband 6,333.80 MasterCard, No. 4946 - Wife 5,990.73 Visa, No. 4847 - Husband 3,521.59 Sears - Husband 310.99 TOTAL $ 24,916.54 Total marital debt paid for and assumed by husband is $10,166.38. Total marital debt paid for and assumed by wife is $14,750.16. 4 . . 15. Both parties have claimed counsel fees; wife's fees are in excess of$5,000.00, husband's fees are in excess of $4,000.00. The cost for the pension valuations to Harry Leister was $1,050.00. Each party paid their own appraiser to have the real estate appraised. 16. No objection has been made by either party in these proceedings to the method and adequacy of service of any ofthe pleadings in the divorce action nor has either party or counsel objected to the jurisdiction of this Court to act in these proceedings. CONCLUSION OF LAW The grounds for divorce are irretrievable breakdown of the mamage. Both parties signed affidavits of consent and waivers of notice of intention to request entry of divorce decree which were filed with the Prothonotary on February 11, 2005. The affidavits and waivers were signed on February 10,2005. The divorce, therefore, can be concluded under Section 3301(c) of the Domestic Relations Code. ANALYSIS OF THE FACTORS AS SET FORTH IN SECTION 3502(a) OF THE DOMESTIC RELATIONS CODE I. The parties were married and living together in a marital relationship for approximately 21 years and have been separated for approximately 3 and V2 years. 2. Neither party was previously married. 3. Husband is 46 years of age. He has a Bachelor of Arts degree from California State University of Pennsylvania in Administration and Management and is employed as a manager at High Mark Blue Shield where his net monthly income is $5,042.00. Husband has not raised any health issues. Husband receives company benefits with his employment. Wife is 46 years of age. She has a degree from California State University of Pennsylvania in Math and Computer Science. She works for the Naval Supply Facility in Mechanicsburg as a computer specialist where she has been employed for over 20 years. Her net monthly income is $3,549.00. Wife has 5 4. 5. 6. 10.1 10.2 . . not raised any health issues. Wife has a package of benefits including health care and retirement through her employment. Neither party made any significant contribution to the other party for education, training, or increased earning power. Both parties have the opportunity to acquire assets in the future based on their earnings and contributions to pensions and savings plans. The sources of income of both parties are related specifically to their employment as well as benefits which are derived through that employment with the High Mark Blue Shield and the federal government. 7. Both parties contributed to the acquisition of the marital estate and neither party can be charged with any dissipation of the marital estate 8. The value of property set apart to each party will be what he or she receives in the distribution ofthe marital assets. 9. The standard of living of the parties established during the marriage was comfortable and middle class. 10. At the time of the distribution of assets, the economic circumstances of the parties are based on their respective earnings and benefits that they may receive from their present employment as well as the assets awarded in the divorce proceedings. No testimony was offered specifically on tax ramifications with respect to the distribution and division of the marital estate. Although no specific testimony was offered on the expense of sale or transfer of assets, nevertheless, the Master does take judicial notice of the fact that with respect to the real estate, cost of sale would be approximately 8% of the sale price which would include realtor's commission and transfer tax. 11. Neither party is serving as the custodian of any dependent minor child. DISCUSSION EQUITABLE DISTRIBUTION Based on the facts found by the Master and the analysis of the factors under Section 3502(a) of the Domestic Relations Code, and a review ofthe spreadsheets 6 . . prepared and filed by counsel, the Master believes that the distribution of the assets of the parties should be 45% to hush and and 55% to wife. Husband, therefore, is entitled to receive $281,266.20 of the total marital estate; wife is entitled to receive $343,769.80 ofthe total marital estate. The martial assets assigned to husband with the values ascribed thereafter are as follows: Husband's 401(k) $ 159,268.00 Husband's pension with High Mark Blue Shield 92.897.00 TOTAL $ 252,165.00 The martial assets assigned to wife with the values ascribed thereafter are as follows: Marital residence at 6107 Hay Market Way, Mechanicsburg, Cumberland County, Pennsylvania $ 196,350.00 Wife's thrift savings plan 93,657.00 Wife's FERS pension 79,945.00 Citizens Mutual Fund 2,331.00 Member's 1 st checking account 545.00 Member's 1st savings account 43.00 TOTAL $ 372,871.00 RENTAL VALUE CLAIM Wife's occupancy through April 2005 of the marital residence since separation has been for 43 months. The monthly rental is $1,275.00 which, therefore, computes to a total rental value claim of$54,825.00. Wife's expenses for taxes and 7 . . insurance is $6,781.50. Husband is entitled to 50% of the rental value in the amount of $27,412.50 and wife is entitled to a credit for payment of one-half of the taxes and insurance in the amount of$3,390.75. Husband's net rental value claim is $24,021.75. MARITAL DEBT The total marital debt of the parties is $24,916.54. The debt assumed by husband is $10,166.38 and the debt assumed by wife is $14,750.16. Husband is responsible for 50% of the debt wife is paying and likewise wife is responsible for 50% of the debt husband is paying. The computation would show that there is a net credit to wife on account of payment of debt in the amount of $2,291.89. COMPUTATIONS Husband is entitled to $281,266.20 of the marital estate. The value of assets assigned to husband is $252,165.00. Husband's shortfall is $29,101.20. Wife is entitled to $343,769.80 of the marital estate. The value of assets assigned to wife is $372,871.00. Wife's excess is $29,101.20. Wife owes husband $24,021.75 for his net rental value claim. Wife's excess of assignment of the assets of the marital estate of $29,101.20 plus wife's obligation to husband for the net rental value claim of$24,021.75 equals $53,122.95. Wife is entitled to a net credit on account of the allocation of marital debt of $2,29 1.89. Therefore, wife owes husband the sum of $50,831.06. The Master notes that wife has made a claim for a portion of husband's last paycheck, a portion of which was earned during the marriage as well as for some 8 . . small amounts in some accounts of around $50.00, and a claim that husband used $1,000.00 for counsel fees from the marital estate. Husband claims that he had to borrow $2,900.00 to cover checks written for payment of real estate taxes. Considering all of the claims relative to these issues, the Master has determined that he is not going to make any specific assessment against either of the parties on account of these alleged obligations and payments. It is likely that wife may have to borrow funds in order to pay husband the cash payment in order to accomplish the equitable distribution as recommended by the Master. The Master does not believe, however, that the debt which wife will have to incur will create any hardship on wife. Wife has the ability to make the small monthly payments on a 30-year mortgage based on a 6 12% interest rate which will not impact on her lifestyle (approximately $325.00 per month). Further, wife is apparently supporting the parties' son who is emancipated and can contribute to the household expenses. No testimony was offered on the son's current status as noted previously; however, ifhe is working, he should be making some small contribution to the wife for his residency in the home. Also, the Master notes that wife has increased substantially her contributions to her savings plan of over $600.00 per month. These contributions are voluntary and can be reduced by wife if she needs additional funds. 9 . . RECOMMENDATIONS EQUITABLE DISTRIBUTION THE MARITAL ASSETS AND VALUES ASSIGNED TO HUSBAND Husband's 401(k) $ 159,268.00 Husband's pension with High Mark Blue Shield 92,897.00 TOTAL $ 252,165.00 THE MARITAL ASSETS AND VALUES ASSIGNED TO WIFE Marital residence at 6107 Hay Market Way, Mechanicsburg, Cumberland County, Pennsylvania $ 196,350.00 Wife's thrift savings plan 93,657.00 Wife's FERS pension 79,945.00 Citizens Mutual Fund 2,331.00 Member's 1 st checking account 545.00 Member's 1st savings account 43.00 TOTAL $ 372,871.00 Net credit to husband on account of rental value is $24,021.75. Net credit to wife on account of marital debt is $2,291.89. Wife shall pay to husband the sum of $50,831.06 within 60 days of a final order in these proceedings. 10 . . Husband shall transfer to wife within 60 days of a final order in these proceedings by special warranty deed all his right, title, and interest to the real estate situate at 6107 Hay Market Way, Mechanicsburg, Cumberland County, Pennsylvania. The parties will sign all titles and documents to transfer ownership of assets assigned to each of the parties as herein provided in the distribution of assets as set forth above so that all transfers are accomplished within 60 days of a final order in these proceedings. Otherwise, if no release of claims or transfers are required, each party shall become the sole and separate owner of all of the assets assigned to him or her in these proceedings. Neither party will have any interest or claims in the pension plans, 401(k) plan, or thrift savings plan of the other party. Each party will be responsible for the debt assigned to that party as set forth in the discussion above. With respect to the marital debt which is assumed by each of the parties, the parties will indemnify and save the other party harmless on account of any and all debt which has been assigned to each of the parties herein The parties will transfer to the other party all items of tangible personal property which are set forth in the exhibits of the parties and requested by each of the parties be delivered to either husband or wife as set forth on each parties' exhibit. All the remaining household tangible personal property currently in the possession of wife will become the sole and separate property of wife. The delivery and receipt of items of household tangible personal property shall not affect the required transfer of assets and payment as otherwise set forth herein in the time frame established. 11 . . ANALYSIS OF THE FACTORS AS SET FORTH IN SECTION 370I(b) OF THE DOMESTIC RELATIONS CODE When the factors of the Section 3502( a) analysis overlap with the factors of the Section 3701(b) analysis, the analysis under Section 3501(a) is incorporated herein, Additional factors to be considered in this Section 3701(b) analysis determining the nature, amount, duration, and manner of payment of alimony are as follows: 4. Neither party has indicated an expectation of receiving funds or assets from sources other than earnings. Neither party indicated any expectation of inheritance. I I. Neither party brought any property of a significant nature into the marriage. 12. No testimony was offered as to the contribution of either spouse as a homemaker. 13. The relative needs of the parties are met by their respective earnings. 14. No testimony was offered on the factor of marital misconduct. 15. The tax ramifications of alimony for federal tax purposes will be that alimony will be treated as income to wife and as a deduction for husband, 16. Wife is receiving substantial property as a result of the equitable distribution ofthe marital estate. She also continues to participate in a savings program and a pension program through her employment. 17. Wife is capable of self-support through her employment. DISCUSSION ALIMONY The Master does not believe that alimony is necessary for wife's continued maintenance and support. Considering that wife has received a disproportionate share of the marital estate as well as the fact that she earns in excess of $3,500.00 net per month, the Master finds that she is capable of supporting herself 12 . . through her employment. Further, as previously noted, even if wife has to incur a small monthly payment on account of financing the house in order to pay off husband's interest in the marital estate, nevertheless, she will have more than adequate resources to make those monthly payments. She volwltarily deducts over $600.00 per month from her income to put into her savings plan. The Master also notes that with respect to wife's alimony claim, she did not file an expense statement in these proceedings which were made part of the trial record. Consequently, the Master can only assume that wife has ordinary expenses for utilities, food, clothing and other necessities which can easily be met through her current income, No extraordinary expenses were testified to or documented on the record. In denying wife's alimony claim, the Master further has taken into consideration that wife has had more than 20 years in her current employment and that her employment situation is not tenuous or uncertain. Because of the security of wife's position, the Master does not believe that he is subjecting her to any risk in the future with regard to his denial of her claim for alimony. RECOMMENDATION ALIMONY Wife's claim for alimony is denied. DISCUSSION COUNSEL FEES AND EXPENSES Both parties have claims against the other for counsel fees. 13 . . Husband and his counsel presented substantial testimony with regard to wife's conduct ofthis case, particularly with regard to discovery and her conduct during negotiations. In making the observations that follow, the Master is aware that wife was in a defensive position in the case and was within her rights to delay the action as long as she could to obtain the spousal support payments that husband was making to her. Nevertheless, wife was also obligated to pursue discovery matters in accordance with the rules of civil procedure and to respond to husband's offers of settlement and to make appropriate offers of settlement to husband. A few examples of wife's approach to the case illustrate her somewhat dilatory nature in moving the case even after the two years had expired. The husband had to get a court order for access to the marital residence for an appraisal. After going to the expense of filing the petition and getting the court order, then wife allowed access to the property. Wife also had an appraisal done of the property by a certified appraiser but did not share the results of that appraisal with husband or his attorney insisting that her attorney use a market analysis as her evidence of value. Not until wife was pressed did she finally produce her appraisal at a conference with counsel and the parties. Wife's appraisal had been completed a considerable time before the conference when the appraisal was finally revealed. The final appraisals were only $700.00 apart and during the hearing wife refused to even compromise the appraised values by splitting the difference which amounted to $350.00. The Master noted his annoyance on the record with the way wife handled the appraisal issue with regard to her failure to produce her appraisal and characterized her conduct as an attempt to deceive the Court and to avoid producing required evidence as part of a discovery procedure. 14 . . With respect to wife's conduct regarding negotiations, she offered no proposals for settlement and did not even respond to husband's latest proposal in January 2005 after all the valuations and appraisals had been completed. She would only agree to talk about settlement if husband agreed to accept only a rocking chair from the household personality. It was obvious to the Master that wife had little interest in trying to resolve the case, and although she was not bound to settle the case, nevertheless, she was bound to be forthcoming with regard to providing information in her control and to produce access to the assets for valuation and to cooperate generally with discovery matters. Also, she is required by the rule of civil procedure, 1920.33(b) to set forth a proposal for settlement. It is implied from that requirement that she respond to offers of settlement and enter into reasonable negotiations. As previously noted, however, she is under no requirement to settle the issues. Therefore, based on the Master's review of wife's lack of participation in this case which made husband's efforts for resolution more difficult, the Master feels that an award in favor of husband for a portion of his fees is warranted. 15 . . RECOMMENDATION COUNSEL FEES AND COSTS Wife shall pay to husband the sum of $500.00 on account of his counsel fees. Said payment shall be made within ten days of a final order in these proceedings. Wife's claim for counsel fees is denied. With respect to the cost of the pension valuations in the amount of $1,050.00, the cost of those valuations shall be divided equally between the parties. Each party will receive credit for what he or she has paid to Harry Leister and any difference shall be assessed against the party who has not paid his or her 50% share. Respectfully submitted, ~c l1e~i' {d ,-\~rk-:::6" E. Robert Elicker, II Divorce Master 16 {~..... ~.. c..:;') ,f' C~I .",'\ -\-, :: ,\ ...",. t:..---' l...;" - - -- ~ JOHN E, GOUGHENOUR, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 01 - 5451 CIVIL BAC T, GOUGHENOUR, Defendant IN DIVORCE NOTICE OF FILING MASTER'S REPORT The report of the Master has been filed this date and copies have been sent with this notice to counsel of record and the parties, In accordance with P,R,C,P. 1920,55 within ten (10) days after the mailing of this notice and report exceptions may be filed to the report by any party, If no exceptions are filed within the ten (10) day period, the Court shall receive the report, and if approved, shall enter a final decree in accordance with the recommendations contained in the report, Q~t[J:d____~ Date: 4/13/04 E, Robert Elicker, II Divorce Master NOTE: If exceptions are filed, file the original with the Prothonotary and a copy with the Master's office, At that time, the party filing the exceptions should notify the court reporter in the Master's office so arrangements can be made for a transcript, Upon completion of the transcript and receipt of payment, the entire file will be returned to the Prothonotary's office for transmittal to the Court at time of argument on the exceptions, If no exceptions are filed, counsel shall prepare an order of Court consistent with the recommendations and provide a proposed order of Court to the Master, Counsel shall also prepare and provide with the r , * proposed order of Court a praecipe* to the Prothonotary directing the Prothonotary to submit the case to the Court for final disposition, The Master will then transfer the file with the proposed order of Court and praecipe to the Prothonotary's Office for docketing and transmittal by the Prothonotary to the Court, Form available in the Prothonotary's office and the Master's office, (NOT the praecipe to transmit the record form as set out in P,R,C,P. 1920,73(b),) [-\ C' .:.-- r-' <:-:.' c.:--~ c..;'~ ~-,'.' :>:J w (:J u'; , C'~11 JOHN E. GOUGHENOUR, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERlAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION -lAW : NO. 01 - 5451 CIVIL BAC T. GOUGHENOUR, Defendant : IN DIVORCE DEFENDANT'S EXCEPTIONS TO MASTER'S REPORT TO THE HONORABLE JUDGES OF THE COURT: Defendant, Bac T. Goghenour, by and through her counsel, Linda A. Clotfelter, take the following exceptions to the Master's Report and Recommendation filed April 13,2005, and respectfully represent that: 1. The Master's determination that Plaintiff's net monthly income is $5,041.81 was in error. 2. The Master erred when he failed to consider an updated value on the pension plans of the parties and instead relied upon the values of the pensions from September 7, 2001. 3. The Master failed to consider the costs and expenses of the future sale of the residence as required by the newl y revised Pennsylvania Divorce Code, Section 3502, 4, The Master erred in calculating the award to Plaintiff for fair rental value, 5. The Master's distribution of 45% to Plaintiff and 55% to Defendant was in error, and, upon an evaluation of the pertinent factors, a distribution of 40% to Plaintiff and 60% to Defendant would be in order. WHEREFORE, Defendant, Bac T. Goughenour, respectfully requests that this Honorable Court consider her exceptions to the Master's Report and Recommendation, review the evidence before the Court, and enter a final order. " JOHN E. GOUGHENOUR, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION -LAW : NO. 01 - 5451 CIVIL BAC T. GOUGHENOUR, Defendant : IN DIVORCE CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date, a true and correct copy of DEFEDANT'S EXCEPTIONS TO MASTER'S REPORT was served upon the interested parties by way of United States First Class Mail, postage prepaid, addressed as follows: Marlin L. Markley, Esquire 2108 Market Street Camp Hill, P A 17011 E. Robert Elicker, II, Divorce Master 9 North Hanover Street Carlisle, PA 17013 LAW FIRM OF LINDA A. CLOTFELTER Dated: 4/) ;-10 ") I nda A. Clotfelter, Esquire ttorney ID No. 72963 021 East Trindle Road, Suite 10 Mechanicsburg, P A 17050 (717) 796-1930 telephone (717) 796-1933 facsimile . . Respectfully submitted, LAW FIRM OF LINDA A. CLOTFELTER Dated: HI),I} 105 nda A. Clotfelter, Esquire ttorney 10 No, 72963 5021 East Trindle Road, Suite Mechanicsburg, PA 17050 (717) 796-1930 telephone (717) 796-1933 facsimile ~/J ,-,.) 'to ~'. ~. -" ...0 - ~----- =.. GOUGHENOUR, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V, BAC T. GOUGHENOUR, DEFENDANT 01-5451 CIVIL TERM IN RE: EXCEPTIONS OF DEFENDANT TO DIVORCE MASTER'S REPORT BEFORE BAYLEY, J. ECONOMIC ORDER AND NOW, this I S~day of June, 2005, concurrent with the entry of a decree in divorce, the following economic order is entered: (1) John E. Goughenour is awarded the following marital property: 401 (k) plan Pension with High Mark Blue Shield (2) Bac T. Goughenour is awarded the following marital property: Marital residence at 6107 Hay Market Way, Mechanicsburg, Cumberland County Thrift savings plan FERS pension Citizens Mutual Fund Member's 1st checking account Member's 151 savings account (3) Wife shall be responsible for the following debt and shall indemnify husband and save him harmless for such debt: Personal service loan, Master Card No. 3231, Master Card No, 4946. (4) Husband shall be responsible for the following debt and shall indemnify wife and save her harmless for such debt: Master Card No. 3238, Visa No. 4847, Sears. (5) John E. Goughenour is awarded $500 from Bac T. Goughenour on account of his attorney fees which shall be paid within 35 days of this date. 01-5451 CIVIL TERM (6) Husband shall transfer to wife within 60 days of this date, by special warranty deed, all his right, title, and interest to the real estate situate at 6107 Hay Market Way, Mechanicsburg, Cumberland County, Pennsylvania. (7) Wife shall pay husband $50,624.33 within 60 days of this date. (8) Husband and wife shall, within 60 days of this date, sign all titles and documents to transfer ownership of assets assigned to each of them. Otherwise, if no release of claims or transfers are required, each spouse shall become the sole and separate owner of all of the assets assigned. Neither spouse shall have any interest or claims in the pensions of the other spouse. (9) Each spouse shall transfer to the other all items of tangible personal property set forth in the exhibits requested by each to be delivered to them. All the remaining household tangible personal property currently in the possession of wife shall become her sole and separate property, The delivery and receipt of items of household tangible personal property shall not affect the required transfer of assets and payments as otherwise set forth in the timeframes established. //J " B~the Court" i , ( \ tw- Linda A Clotfelter, Esquire For Bac T. Goughenour Edgar B. Bayley, J. Marlin L. Markley, Esquire For John E. Goughenour ( :sal -2- \1' " J.J}lC',C(-! r-,' \ S :S Hd S \ \;f!.n\luZ 1"I"IiI')'\"";;~')' :1' II :10 .,J\'_\.\' \'1'-J1 ,,;,,_,-,0 ~ru.. ]8\:J:,~D-Q:nL4 JOHN E. GOUGHENOUR, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BAC T. GOUGHENOUR, DEFENDANT 01-5451 CIVIL TERM IN RE: EXCEPTIONS OF DEFENDANT TO DIVORCE MASTER'S REPORT BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., June 15, 2005:-- Plaintiff, John E. Goughenour, and defendant, Bac T. Goughenour, were married on August 23, 1980. They have two emancipated children. Husband, age 46, has a Bachelor of Arts degree, and is a manager for High Mark Blue Shield. Wife, age 46, has a Bachelors degree in math and computer science, and is a computer specialist for the United States Government. Both spouses are in good health, Wife lives in the marital residence, The Divorce Master found that the value of the marital property was $625,036, and the marital debt totaled $24,916.54. After making an analysis of the factors set forth in the Divorce Code at 23 Pa.C.S. 3502(a), the Master recommended that the equitable distribution of the marital property should be 45% to husband, $281,266.20, and 55% to wife, $343,769.80, The Master recommended the following schedule: TO HUSBAND 401 (k) plan Pension with High Mark Blue Shield TOTAL $159,268.00 92.897.00 $252,165.00 01-5451 CIVIL TERM TO WIFE Marital residence at 6107 Hay Market Way, Mechanicsburg, Cumberland County Thrift savings plan FERS pension Citizens Mutual Fund Member's 1st checking account Member's 1st savings account TOTAL $196,350.00 93,657.00 79,945.00 2,331.00 545.00 43.00 $372,871.00 Net credit to husband on account of rental value is $24,021.75. Net credit to wife on account of marital debt is $2,291.89. Wife shall pay husband the sum of $50,831.06 within 60 days of a final order. After incorporating the analysis in Section 3502(a) with an analysis of the additional factors in Section 3701 (b), the Master recommended that wife's claim for alimony be denied. The Master further recommended that wife's claim for counsel fees be denied, that wife pay husband $500 on account of husband's counsel fees, and that the parties divide equally the $1,050 cost of the evaluations of their pensions. Wife filed four exceptions to the Master's Report. In Tagnani v. Tagnani, 439 Pa. Super. 596 (1995), the Superior Court of Pennsylvania stated: Notwithstanding the fact that the Master observes and hears the testimony of the witnesses, the trial court is not bound by the master's recommendations. "In reviewing the trial court's determination, we must keep in mind that the court was free to accept or reject the parties' testimony," "Although the master's report is entitled to great weight, that final responsibility for making the [equitable] distribution [of property] rests with the court." (Citations omitted.) I. THE MASTER'S INCORRECT COMPUTATION OF HUSBAND'S MONTHLY NET INCOME MUST BE ADDRESSED TO PROPERLY EFFECTUATE THE EQUITABLE DISTRIBUTION OF THE PARTIES' MARITAL ASSETS. -2- 01-5451 CIVIL TERM In making a Section 3502(a) analysis for the purposes of recommending the equitable distribution of marital property, the Master concluded that husband had a net monthly income of $5,042, and that wife had a net monthly income of $3,549. Both parties agree that the Master erred in calculating husband's net monthly income which is $5,141,85, not $5,042. Using the Master's calculation, the total combined monthly net income of the parties was $8,591, with husband's net income representing 58.69% of that amount. Correcting the Master's calculation, the combined monthly net income is $8,690.85, with husband's net income representing 59.16% of that amount. Although the difference is only 0.47%, wife argues that the difference warrants a distribution of marital property to her of 60%, and to husband of 40%. The minor difference in the correct calculation of husband's net monthly income, which was one of twelve factors the Master analyzed pursuant to Section 3502(a), does not warrant our not accepting the Master's recommended distribution of marital property. II. THE MASTER SHOULD HAVE DEDUCTED THE COSTS AND EXPENSES OF THE FUTURE SALE OF THE RESIDENCE AS REQUIRED BY THE NEWLY REVISED PENNSYLVANIA DIVORCE CODE, SECTION 3502. Section 3502 of the Divorce Code provides in pertinent part: Equitable division of marital property. (a) General rule. Upon the request of either party in an action for divorce or annulment, the court shall equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such percentages and in such manner as the court deems just after considering all relevant factors. The court may consider each marital asset or group of assets independently and apply a different percentage to each marital asset or group of assets. Factors -3- 01-5451 CIVIL TERM which are relevant to the equitable division of marital property include the following: . . . (10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain. (Emphasis added.) In analyzing the twelve factors in an equitable distribution analysis as set forth in Section 3502(a), the Master stated: Although no specific testimony was offered on the expense of sale or transfer of assets, nevertheless, the Master does take judicial notice of the fact that with respect to the real estate, cost of sale would be approximately 8% of the sale price which would include realtor's commission and transfer tax. Wife argues that it was error not to reduce the value of the marital residence she is receiving, $196,350, by 8%. She misconstrues Section 3502(a) (10.2). The Master is not required by that Section to reduce the value of real estate awarded by the amount of the expenses of a sale should the property be sold in the future. Rather, the Master is only required to consider the cost of any future sale of the property as a factor, along with all other factors in Section 3502(a), in making a recommendation for the equitable distribution of all marital property. Section 3502(a) factors are guidelines. The Section does not specify the weight to be given to anyone factor. Sergi v. Sergi, 351 Pa. Super. 588 (1986), III. BECAUSE THE MASTER ERRED IN HIS CALCULATION OF THE FAIR RENTAL VALUE SUM OWED BY WIFE TO HUSBAND, THE SUM OWED BY WIFE TO HUSBAND MUST BE ADJUSTED. The parties stipulated that there was no mortgage and no liens on the marital residence, and that the rental value was $1,275 per month. They stipulated to the -4- 01-5451 CIVIL TERM amount of the real estate taxes and the cost of insurance. When the stipulations were entered at the hearing before the Master, wife had lived without husband in the marital residence for forty-one months. When the Master filed a report, wife had lived there for forty-three months. The Master provided husband with forty-three months of fair rental value, less one-half of wife's expenses for only forty-one months, not forty-three months. It is within the discretion of the court to make an award to a spouse out of possession for rental value of a jointly owned marital residence. Trembach v. Trembach, 419 Pa. Super. 80 (1992), When rental value is made part of an order of equitable distribution, the spouse in possession is entitled to a credit for one-half of the debt service and insurance costs on the property, Id, In the present case, since the Master awarded husband fair rental value for forty-three months, and only gave wife credit for one-half of forty-one months of expense for real estate taxes and insurance, we will adjust the credit to wife for two more months of such expenses.' IV. THE MASTER'S DISTRIBUTION OF 45% TO PLAINTIFF AND 55% TO DEFENDANT WAS IN ERROR, AND, UPON AN EVALUATION OF THE PERTINENT FACTORS, A DISTRIBUTION OF 40% TO PLAINTIFF AND 60% TO DEFENDANT WOULD BE IN ORDER. The Master made the following Section 3052(a) analysis: 1. The parties were married and living together in a marital relationship for approximately 21 years and have been separated for , The additional credit is $206.73; $179.16 for the taxes and $27.58 for the insurance. Thus, husband's net rental claim is $23,815.02, not $24,021.75. -5- 01-5451 CIVIL TERM approximately 3 and % years. 2. Neither party was previously married. 3, Husband is 46 years of age. He has a Bachelor of Arts degree from California State University of Pennsylvania in Administration and Management and is employed as a manager at High Mark Blue Shield where his net monthly income is $5,042.00. Husband has not raised any health issues. Husband receives company benefits with his employment. Wife is 46 years of age. She has a degree from California State University of Pennsylvania in Math and Computer Science. She works for the Naval Supply Facility in Mechanicsburg as a computer specialist where she has been employed for over 20 years, Her net monthly income is $3,549.00, Wife has not raised any health issues. Wife has a package of benefits including health care and retirement through her employment. 4. Neither party made any significant contribution to the other party for education, training, or increased earning power. 5. Both parties have the opportunity to acquire assets in the future based on their earnings and contributions to pensions and savings plans. 6. The sources of income of both parties are related specifically to their employment as well as benefits which are derived through that employment with the High Mark Blue Shield and the federal government. 7. Both parties contributed to the acquisition of the marital estate and neither party can be charged with any dissipation of the marital estate. 8. The value of property set apart to each party will be what he or she receives in the distribution of the marital assets. 9. The standard of living of the parties established during the marriage was comfortable and middle class. 10, At the time of the distribution of assets, the economic circumstances of the parties are based on their respective earnings and benefits that they may receive from their present employment as well as the assets awarded in the divorce proceedings. 10,1 No testimony was offered specifically on tax ramifications with respect to the distribution and division of the marital estate, 10.2 Although no specific testimony was offered on the expense of sale or transfer of assets, nevertheless, the Master does take judicial notice of the fact that with respect to the real estate, cost of sale would be approximately 8% of the sale price which would include realtor's commission and transfer tax. 11. Neither party is serving as the custodian of any dependent minor child. In seeking a 60% award of equitable distribution of marital property, wife argues that greater consideration should have been given to the difference between her -6- . 01-5451 CIVIL TERM income and the income of husband and the value of their pensions, that she will not be receiving alimony, and that she has paid all of the expense since separation to repair and maintain the marital residence that she is being awarded, After a review of the Master's complete Section 3052(a) analysis with respect to the entirety of the marital estate, the circumstances of each spouse, and their standard of living, we are satisfied that a distribution of 55% to wife and 45% to husband promotes economic justice. For the foregoing reasons, the following economic order will be entered as recommended by the Master, but with $50,624.33 to be paid by wife to husband. , ECONOMIC ORDER AND NOW, this ~ day of June, 2005, concurrent with the entry of a decree in divorce, the following economic order is entered: (1) John E. Goughenour is awarded the following marital property: 401(k) plan Pension with High Mark Blue Shield (2) Sac T, Goughenour is awarded the following marital property: Marital residence at 6107 Hay Market Way, Mechanicsburg, Cumberland County Thrift savings plan FERS pension Citizens Mutual Fund Member's 1st checking account Member's 1s1 savings account (3) Wife shall be responsible for the following debt and shall indemnify husband and save him harmless for such debt: Personal service loan, Master Card No. 3231, Master Card No. 4946. -7- . 01-5451 CIVIL TERM (4) Husband shall be responsible for the following debt and shall indemnify wife and save her harmless for such debt: Master Card No, 3238, Visa No. 4847, Sears. (5) John E. Goughenour is awarded $500 from Bac T. Goughenour on account of his attorney fees which shall be paid within 35 days of this date. (6) Husband shall transfer to wife within 60 days of this date, by special warranty deed, all his right, title, and interest to the real estate situate at 6107 Hay Market Way, Mechanicsburg, Cumberland County, Pennsylvania. (7) Wife shall pay husband $50,624.33 within 60 days of this date. (8) Husband and wife shall, within 60 days of this date, sign all titles and documents to transfer ownership of assets assigned to each of them. Otherwise, if no release of claims or transfers are required, each spouse shall become the sole and separate owner of all of the assets assigned. Neither spouse shall have any interest or claims in the pensions of the other spouse, (9) Each spouse shall transfer to the other all items of tangible personal property set forth in the exhibits requested by each to be delivered to them. All the remaining household tangible personal property currently in the possession of wife shall become her sole and separate property. The delivery and receipt of items of household tangible personal property shall not affect the required transfer of assets and payments as otherwise set forth in the timeframes established. -8- . 01-5451 CIVIL TERM Marlin L. Markley, Esquire For John E. Goughenour Linda A. Clotfelter, Esquire For Bac T. Goughenour :sal -9- By th7 C6urt. . / I 7... ,/ .. / , ,/ '( ,," " " " " " " " " " " " " , . . . . . . . . . " . . . . . . , . . " . . . . . . . . . . , . . " . . . . . . . . . . . . . . . . . . . " . . . . . . . . " . . . . " . . . . . . . . . . , . . . :t'~ '+i:f.:f. .. . . . ... :+::f.;f.'f.:+:+.i+':ti:f.:+::+:;t;++.:+:+.:f.++:t::+;++:f. +.:+: +.:+:,.,:f.+. :f.+:f.+.+.+++:+::f.+'+'++'++'+'+~~ . . . . . . . . . .. . IN THE COURT OF COMMON PLEAS OFCUMBERLANDCOUNTY STATE OF 01-5451 CIVIL TERM PEN NA, . . . . . . . . . . . . . . . . . " . " " . " " " . , , " " . , " " . " " , " . " . . . " " , . " . . " . , " " . " . " " . " " . " " . . . " . JOHN E. GOUGHENOUR, PLAINTIFF No, VERSUS BAC T. GOUGHENOUR, DEFENDANT DECREE IN DIVORCE AND NOW, - )ov&.. "'Zov~T , , IS ORDERED AND l~ JOHN E. GOUGHENOUR DECREED THAT , PLAINTIFF, BAC T, GOUGHENOUR AND , 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 . " . BY . " " . " " " ATIE~ J . ~~pcon'O'O'AP~ j , " :f. "':+: Of. +:+: Of +. Of '+:f. Of. :+::+: :+: +. ;+: T +. :f. 'I' +. +. Of Of '+' :of. Of Of. Of :+::f. Of. 'f' :+::+: Of +. +. +. '+: +. Of Of +. '+' + +. +. +. + +. Of Of +. ++ ,:z. /,~>~>oI' ~~ 5r:;. ~ . '? ~k/-P :z~.4-n 5t7. fl{''j7 . . . . . .-.'