HomeMy WebLinkAbout94-02253
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_ IN THE COURT OF COMMON .
. OF CUMBERLAND COUNTY .
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~ STATE OF' ~ PENNA. :
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. ALICE P~L"HSOlWARTZ'" .
'HH' .Plaintiff N n. .,?~~~.~~.3...~,~~..~ 19 ..
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. .... m1;lL N. 5CliWARTZ, .
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. DECREE IN ·
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. DIVORCE :
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" AND NOW, ' .. .. .. .. .. J..J, .. ,<,t, ~.. .. " 19. ~.C,' it is ordered and 8
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. decreed that ...........~~~,~:~:.~~~,..,........,....... plaintiff, ~
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~ and .,"",.,',.,"""'~, ~,', ~~,z.,"",..".,"""',. 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 8
. been enteredi None, It is further OROEmD, AIlJUOOED and DEDU:ED, that the
. teImB, provisioos and cooditioos of a certain Marital Settlsnent J\o,jL"",nent be 8
. ,the. mt:t,i,e,s. ~t:M fJ.l.\ly, ,1,0", .1.9,9,5." .a.nc\ .a.t:.t.&c;I"\~ hE\r.Elt,q .a.t:El ,i.r\~ItlQI:a.t:.~ ,i.r\ ,t,his 8
. Decree in Divorce by reference as fully as if the same were set forth herein at iii
. ,lenqt:h" , Said llgr-eEl'Iellt: 9haH: rot: merge with but: .shaH: 'survive .thi9 'Decree in :
: Divorce, ~
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TABLE OF CONTENTS
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ADVICE OF COUNSEL
DISCLOSURE OF ASSETS
PERSONAL RIGHTS
MUTUAL CONSENT DIVORCE
EQUITABLE DISTRIBUTION
(a) Real Property
(b) Contents of the Parties' Respective
Resid~nces and Personal Property
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(c) Motor Vehicles
(d) Pension/Retirement Funds
(e) Cash Accounts and other Funds
(f) J,C, Bradford Joint Accounts
(9) Life Insurance
(h) Lump Sum to Husband
(i) Miscellaneous Property
(j) Property to Wife
(k) Property to Husband
(1) Assumption of Liabilities
(m) Liability Not Listed
(n) Indemnification of Wife
(0) Indemnification of Husband
(p) Warranty as to Future Obligations
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WAIVER OF ALIMONY
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TABLE OF CONTENTS
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7. HEALTH INSURANCE FOR HUSBAND
8, CUSTODY
(a) Legal and physical custody
(b) Emergencies
(c) Access to Records
(d) Living Arrangements
9. CHILD SUPPORT
(a) Basic Child support
(1) periodic Payments
(b) Health Insurance for Children
(c) Unreimbursed Expenses
(d) Undergraduate Education
10, WAIVER OF INHERITANCE RIGHTS
11. WAIVER OF BEIfEFICIARY DESIGNATION
12. RELEASE OF CLAIMS
13. PRESERVATION OF RECORDS
14. MODIFICATION
15, SEVERABILITY
16. BREACH
17, WAIVER OF BREACH
18. NOTICE
19. APPLICABLE LAW
20, AGREEMENT BINDING ON PARTIES AND HEIRS
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TABLE OF CONTENTS
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21. ENTIRE AGREEMENT 25
22, INCORPORATION OF EXHIBITS 25
23. MUTUAL COOPERATION 25
24, DATE OF EXECUTION 26
25, EFFECTIVE DATE 26
26, AGREEMENT NOT TO BE MERGED 26
27, EFFECT OF RECONCILIATION OR
RECONCILIATION ATTEMPT 27
28. HEADINGS NOT PART OF AGREEMENT 27
29, COUNTERPARTS 27
Exhibit "A" 30
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MARITAL I.T'l'L.1II1l'l' AOU.IIIN'l'
THIS AGREEMENT made this /IJ"h. day
1995, by and between ALICE P,L. SCHWARTZ
of ..::T'u.. ~ -I .i
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of Cumberlalld County,
penn.ylvania, (hereinafter referred to as "Wife"), and BERL N,
SCHWARTZ of East Lansing, Michigan, (hereinafter referred to as
"Hu.band"),
WITNESSETH:
WHEREAS, Alice P,L, Schwartz, social security number 172-42-
7980, was born on September 12, 1949, and resides at 110 parkview
Road, New Cumberland, Cumberland County, Pennsylvania, 17070,
WHEREAS, Berl N, Schwartz, social security number 289-40-
7991, was born on January 24, 1947, and resides at 523
Bainbridge, Apartment 48, East Lansing, Michigan, 48823,
WHEREAS, the parties hereto are husband and wife, having
been lawfully married on June 12, 1971, in Philadelphia,
Pennsylvania, and are the parents of the following minor
children:
Abagail Tobiah Schwartz
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Date of Birth
April 3, 1981
April 3, 1981
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Rebecca Neumann Schwartz
WHEREAS, the parties have lived separate and apart for more
than two years1 and
WHEREAS, 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,
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~ the .ettlinq of all matters between them relatinq to the
owner.hip of real and personal property, the support and
.aint.nanc. of one another and of their children, and in q.neral,
the .ettlinq of any and all claims and possible claims by one
aqainat the other or aqainst their respective estates.
NOW, THEREFORE, in consideration of these premises, and of
the mutual promises, covenants, and undertakinqs hereinafter set
forth, and for other qood and valuable consideration, receipt and
sufficiency of which is hereby acknowledqed by each of the
parties hereto, Husband and Wife, each intendinq to be leqally
bound hereby, covenant and agree as follows:
1. ADVICE OF COUNSEL, Wife is represented by
patricia A, Miles, Esquire, Until June 9, 1995, Husband was
represented by N, Christopher Menges, Esquire. Each party
acknowledges that he or she has had the opportunity to receive
independent legal counsel of his or her selection, and that each
fully understands the facts and 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, 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 improper or
illegal agreement or agreements, In addition, each party hereby
acknowledges that he or she is aware of the impact of the
PennsYlvania Divorce Code, 23 Pa,C,S,A, ~3101, ~, ~" whereby
the court has the right and duty to determine all marital rights
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. of the partie. including divorce, alimony, alimony pend.nte litA,
equitable di.tribution of all marital property or property owned
or po......d individually by the other, counsel fees and costs o~
litigation and, fully knowing the same, and being fully advised
of hi. or her rights thereunder, each party hereto still desires
to execute this Agreement acknowledging that the terms and
conditions set forth herein are fair, just and equitable to each
of the parties and waives his and her respective right to have
the Court of Common Pleas of cumberland county, or any other
court of competent jurisdiction, make any determination or order
affecting the respective parties' rights to alimony, alimony
p.ndente !itA, equitable distribution of all marital property,
counsel fees and costs of litigation, or any other right arising
from the parties' marriage,
2. DISCLOSURE OF ASSETS, Each of the parties hereto
acknowledges that he or she is aware of his or her right to
engage in discovery, inclUding but not limited to, written
interrogatories, motions for production of documents, the taking
of oral depositions, the filing of inventories, and all other
means of discovery permitted under the Pennsylvania Divorce Code
or the Pennsylvania Rules of civil Procedure and each of the
parties specifically waives his or her right to engage in such
discovery. Each of the parties further acknowledges that he or
she is aware of, and specifically waives, his or her right to
have the real and/or personal property, estate and assets,
earnings and income of the other assessed or evaluated by the
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court. of this commonwealth or any other court of competent
juri.diction. The respective parties do hereby acknowledge,
recognize and accept that there has been full and fair disclosure
to the other of his or her assets and liabilities, and each party
agrees that any right to further disclosure, valuation,
enumeration or statement thereof in this Agreement is hereby
.pecifically waived, and the parties do not wish to make or
append hereto any further enumeration or statement, The parties
hereby acknowledge and agree that the division of the marital
as.ets as eet forth in this Agreement is considered fair,
reasonable and equitable, and is satisfactory to them, Each of
the parties hereto further covenants and agrees for himself and
herself and his or her heirs, executors, administrators or
assigns, that he or she will never at any time hereafter sue the
other party or his or her heirs, executors, administrators or
assigns in any action of contention, direct or indirect, and
allege therein that there was a denial of any rights to full
disolosure, or that there was any fraud, duress, undue influence,
or that there was a failure to have available full, proper and
indspendent representation by legal counsel.
3, PERSONAL RIGHTS, Husband and Wife may, at all
times hereafter, live separate and apart, Each shall be free
from all oontrol, restraint, interference and authority, direot
or indireot, 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
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benefit, conduct, carryon or engage in any business, occupation,
profe..ion or employment which to him or her may seem advisable.
Thia proviaion shall not be taken, however, to be an admission on
the part of either Husband or Wife of the lawfulness of the cause
which led to, or resulted in, the continuation of their living
apart, Husband and Wife shall not molest, harass or disturb 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, Neither party will
interfere with the use, ownership, enjoyment or disposition of
any property now owned by or hereafter acquired by the other,
4. MUTUAL CONSENT DIVORCE. The parties acknowledge
that Wife initiated a divorce action in the Cumberland county
Court of Common Pleas at No, 94-2253 asserting irretrievable
breakdown of marriage and that ninety (90) days have expired from
the date the complaint was filed, Therefore, the parties agree
that contemporaneously with the execution of this Agreement, each
shall sign and have duly acknowledged an affidavit of consent to
a divorce pursuant to 53301(c) of the Divorce Code. Said
affidavits shall be promptly transmitted to counsel for Wife who
will immediately file a praecipe to transmit record and vital
statistics form to precipitate the prompt entry of a decree of
divorce.
5, EOUITABLE DISTRIBUTION,
(a) Real Propertv, Wife and Husband acknowledge
that Wife holds title to the premises identified as 110 Parkview
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Road, New cumberland, Cumberland County, Pennsylvania 17070
(hereinafter "Wife's residence"). The parties agree as followa
with reepect to Wife's residence I
(1) Husband hereby waives, relinquishfts and
releaaea for all time any and all past, present or future right,
title, claim or interest in and to Wife's residence,
(2) Husband agrees that any and all
homeownera' policies, title policies and any other policy of
inaurance with respect to Wife's residence shall reflect Wife as
sole owner thereof and further agrees that Wife shall be entitled
to receive any payments now or hereafter due undor such insurance
policies,
(3) Wife shall be solely responsible for all
coats, expenses and liabilities associated with or attributable
to Wife's residence, including but not limited to any mortgage
obligations, real estate taxes, insurance premiums, utilities,
maintenance and repairs and Wife shall keep Husband and his
successors, assigns, heirs, executors and administrators
indemnified and held harmless from any liability, cost or expense
which may be incurred in connection with such liabilities and
expenses,
(b) Contents of the Parties' Respective
Residences and Personal ProDertv,
(1) Except as otherwise provided herein, as
of the date of execution of this Agreement, Husband shall set
over, transfer and assign to Wife all of his right, title, claim
and interest in and to all of the contents of Wife's residence
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and any parsonal property now in the possession or control of
Wife including, but not li.ited to, all furniture, furnishings,
rugs, carpets, silver, china, household appliances and equip.ent,
clothes, jewelry, personalty and other items of tanqible property
of whatever nature currently located in Wife's residence or
elsewhere. Notwithstandinq the foreqoinq, the parties aqree that
they will divide equally between themselves bric-a-brac, posters,
paintings and art work not specifically addressed in Exhibit "A"
hereto. If they are unable to aqree, said items shall be
distributed between them by lottery with each party selectinq one
ite. in turn with the other and Husband havinq the first turn,
In addition, Husband may remove, at his sole discretion and at
his sole expense, and may retain as his sole and separate
proparty, all those items set forth on Exhibit "A" attached
hereto and incorporated herein by reference, as well as the other
proparty belonginq to hi. by the terms of this subparaqraph, if
and only if said ite.s are removed from Wife's residence within
ninety (99)~days fro. the date a divorce de9ree is entered with
respect ~~~~~l. pa~{e~ ~" In (~~fe -je~:n~ -o~\ \ ~} ~~di~~~\ '~~~rgen~s
attested to by a physician, Husband shall be qiven such
additional time as is reasonable and necessary to remove the
property belonqinq to him by the terms of this subparaqraph, If
Husband fails to re.ove said items within the requisite ti.e
fra.e, then all such items not removed shall be deemed to be the
sole and separate property of Wife and she may retain or dispose
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of such items as she alone sees fit, free and clear any right,
title or interest in and to such items by Husband.
(2) As of the date of execution of this
Agreement, Wife hereby sets over, transfers and assigns to
Husband all of her right, title, claim and interest in and to all
of the contents of Husband'S current residence and any personalty
in Husband'S possession and control including, but not limited
to, all furniture, furnishings, rugs, carpets, silver, china,
household appliances and equipment, clothes, jewelry, personalty
and other items of tangible property of whatever nature located
in Husband's residence or elsewhere,
(c) Motor Vehicles,
(1) Husband agrees that Wife shall retain
possession of and receive as her sole and separate property the
1987 Toyota Celica automobile, along with all rights under any
insurance policy thereon and with all responsibility for payment
of any outstanding indebtedness pertaining thereto and insurance
thereon, free of any right, title, claim or interest of Husband,
(2) Wife agrees that Husband shall retain
possession of and receive as his sole and separate property the
1987 Toyota camry L,E, automobile along with all rights under any
insurance policy thereon and with all responsibility for payment
of any outstanding indebtedness pertaining thereto and insurance
thereon, free of any right, title, claim or interest of Wife.
(3) Wife and Husband agreed to execute,
acknowledge and deliver within thirty (30) days upon request of
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the other, any and all instruments or documents necessary to
effectuate the terms of this subparagraph,
(4) Wife and Husband agree that each will
indemnify and hold the other and his or her property harmless
from any liability, cost or expense, including attorneys fees,
incurred in connection with the automobiles awarded to each party
by the terms of this subparagraph,
(d) Pension/Retirement Funds. Wife and Husband
each hereby specifically releases and waives any and all
interest, claim or right that she or he may have in and to any
and all retirement benefits (including but not limited to pension
or profit sharing benefits, deferred compensation plans, 401(k)
plans, individual retirement accounts or other similar benefits)
of the other party, specifically to include a waiver of any
beneficiary designation thereunder, The parties agree that they
shall execute any documents pursuant to the Retirement Equity Act
or any similar act that may be required from time to time to
accomplish the purpose of this subparagraph,
(e) Cash Accounts and Other Funds, Wife agrees
that Husband shall retain as his sole and separate property, free
from any claim or right of Wife, any and all stocks, bonds and
sums of cash in savings or checking accounts, mutual funds, stock
accounts, or any other assets of a similar nature which now are
titled in Husband's name alone, Husband agrees that Wife shall
retain as her sole and separate property, free from any claim or
right of Husband, any and all stocks, bonds and sums held in
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checking or savings accounts, mutual funds, stock accounts, or
any other as.et. of a similar nature which now are titled in
Wife's name alone,
(f) J.e, Bradford Joint Accounts. The parties
acknowledge that they are the joint owners of money market and
stock fund accounts, No, 105-7970-1-4-205, at J.e, Bradford, The
partie. agree that the joint accounts shall be divided equally
between them and that each party may use, enjoy or dispose of his
or her share as each sees fit, The parties agree that each will
execute any documents necessary to effectuate the terms of this
subparagraph within fourteen (14) days of his or her receipt of
said documents,
(g) Life Insurance, Wife and Husband hereby
specifically release and waive any and all interest, claim, or
right that he or she may have in and to any and all policies of
life insurance insuring the life of the other, along with all
incidents of ownership pertaining to same, including cash value,
if any,
(h) LumD Sum to Husband, As part of the
equitable distribution of the parties' marital property, Wife
agrees that she shall pay to Husband a lump sum of One Thousand
Three Hundred Nineteen Dollars ($1,319) within sixty (60) days of
the date a divorce decree is entered with respect to the parties.
The parties agree that the lump sum from Wife to Husband is in
the nature of a property distribution and is not alimony,
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Therefore, this sum shall not be deductible by Wife nor
includeable in Husband's income for tax purposes.
(i) Miscellaneous PrODertv. All property not
.pecifically addressed herein shall be hereafter owned by the
party to whom the property is titled, and if untitled, the party
in po.....ion, This Agreement shall constitute a suffici.nt bill
of .ale to evidence the transfer of any and all rights in such
property from each to the other.
(j) Prooertv to Wife, The parties agree that
Wife shall own, possess, and enjoy, free from any claim of
HU.band, the property awarded to her by the terms of this
Agre.ment, Husband hereby quitclaims, assigns and conveys to
Wife all such property, together with any insurance policies
covering that property, and any escrow accounts relating to that
property, This Agreement shall constitute a sufficient bill of
.ale to evidence the transfer of any and all rights in such
property from Husband to Wife.
(k) Prooertv to Husband. The parties agree that
Hu.band shall own, possess, arad enjoy, free from any claim of
Wife, the property awarded to him by the terms of this Agreement.
Wife hereby qUitclaims, assigns and conveys to Husband all such
property, together with any insurance policies covering that
property, and any escrow accounts relating to that property.
Thi. Agreement shall constitute a sufficient bill of sale to
evidenoe the transfer of any and all rights in such property from
Wife to Husband.
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(1) ASBuMDtion of Liabilities.
(1) Husband agrees that he shall be Bolely
re.ponaible for all debt he has incurred in his name alone,
including, but not limited to obligations to issuers of credit
carda in hia name and Husband further agrees that he will
indemnify and hold Wife and her property harmless from any
liability, cost or expense, including attorney's fees, associated
with these obligations,
(2) Wife agrees that she shall be solely
responsible for all debt she has incurred in her name alone,
inclUding but not limited to obligations to issuers of credit
cards in her name, and the loan against her 401(k) plan, as well
as the parties' joint obligation to Wife's mother in the amount
of Nineteen Thousand Dollars ($19,000), and Wife further agrees
that she will indemnify and hold Husband and his property
harmless from any liability, cost or expense, including
attorney's fees, associated with these obligations,
(3) Unless otherwise provided herein, each
party hereby assumes the debts, encumbrances, taxes and liens on
all the property each will hold subsequent to the date of this
Agreement, and each party agrees to indemnify and hold harmless
the other party and his or her property from any claim or
liability that the other party will suffer or may be required to
pay because of such debts, encumbrances or liens,
(m) Liabilitv Not Listed. Each party represents
and warrants to the other that he or she has not incurred any
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debt, obligation or other liability, other than those desoribed
in thie Agreement, on which the other party is or may be liable,
A liability not disolosed in this Agreement will be the eole
responsibility of the party who has incurred or may hereafter
inour it, and each party agrees to pay it as the same shall
beoome due, and to indemnify and hold the other party and his or
her property harmless from any and all such debts, obligations
and liabilities,
(n) Indemnification of Wife, If any claim,
aotion or proceeding is hereafter initiated seeking to hold Wife
liable for the debts or obligations assumed by Husband under this
Agreement, Husband shall, at his sole expense, defend wife
against any such olaim, action or proceeding, whether or not
well-founded, and indemnify her and her property against any
damages or loss reSUlting therefrom, including, but not limited
to, ooets of court and attorney's fees incurred by Wife in
oonnection therewith,
(0) Indemnification of Husband, If any claim,
aotion or prooeeding is hereafter initiated seeking to hold
Husband liable for the debts or obligations assumed by Wife under
this Agreement, Wife shall, at her sole expense, defend Husband
against any such claim, action or proceeding, whether or not
well-founded, and indemnify him and his property against any
damages or loss resulting therefrom, inoluding, but not limited
to, oosts of court and attorney's fees incurred by Husband in
connection therewith,
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(p) Warrantv as to Future obligations. Husband
and wife shall take all steps necessary to assure that no credit
cards or similar accounts or liabilities exist which provide for
joint liability, From the date of execution of this Agreement,
each party shall use only those credit cards and accounts for
which that party is individually liable and the parties agree to
cooperate in closing any and all accounts on which joint
liability may be incurred, Husband and Wife each represents and
warrants to the other that he or she will not at any time in the
future incur or contract any debt, charge or liability for which
the other, the other's legal representatives, property or estate
may be responsible, Each hereby agrees to indemnify, save and
hold the other and his or her property harmless from any
liability, loss, cost or expense whatsoever, including attorney's
fees, incurred in the event of breach hereof.
6, WAIVER OF ALIMONY, The parties acknowledge that
inflation may increase or decrease, that their respective incomes
and assets may substantially increase or decrease in value, that
either may be employed or unemployed at various times in the
future, and that notwithstanding these or other economic
circumstances, the parties acknowledge that they each have
sufficient property and resources to provide for her or his
reasonable needs and that each is able to support herself or
himself without contribution from the other, Therefore, the
parties hereby expressly waive, discharge and release any and all
rights and claims which they may now or hereafter have, by reason
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of the partie.' marriage, to alimony, alimony pendente lite,
support or maintenance and they acknowledge that this Agreement
constitutes a final determination for all time of either party's
obligation to contribute to the support and maintenance of the
other, It shall be, from the execution date of this Agreement,
the sole responsibility of each of the respective parties to
sustain himself or herself without seeking any additional support
from the other party.
7, HEALTH INSURANCE FOR HUSBAND, Wife agrees that
she shall continue to maintain Husband on the medical and
hospitalization insurance coverage provided as a benefit of her
employment until the date a divorce decree is entered with
respect to the parties, Wife further agrees to cooperate
thereafter in assisting Husband to obtain COBRA coverage if he so
de.ires, but such coverage shall be at Husband's sole expense,
8, CUSTODY,
(a) Leaal and phvsical Custodv, The parties
agree that at this time, it is in the best interests of their
children that Wife be their primary legal and physical custodian,
subject to Husband's rights of partial physical custody as set
forth herein, Wife agrees that major decisions concerning the
parties' children, including but not necessarily limited to their
health, welfare, education, religious training and upbringing
shall be made after discussion and consultation with Husband,
with a view toward obtaining and following a harmonious policy in
the children's best interests, Each party shall keep the other
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informed of the progress of the children's educational and 80cial
adju.tment. when in hiB or her care, Each party agree. not to
impair the other party's custodial rights as regards the
children. The parties shall give support to one another in their
role as parents, and take into account the views of the other
regarding the physical and emotional well-being of their
children. Each party agrees not to attempt to alienate the
affections of the children from the other party nor to permit any
third party to so alienate the affections of the children from
the other party, The parties agree that they will encourage the
children to contact the other party by telephone, Day-to-day
decisions will be the responsibility of the parent then having
physical custody,
(b) Emerqencies, with regard to any emergency
decisions which must be made, the parent having physical custody
of the child or children at the time of the emergency shall be
permitted to make any immediate decisions necessitated thereby,
However, that parent shall inform the other parent of the
emergency and consult with him or her as soon as possible.
(c) Access to Records, Each parent shall be
entitled to complete and full information from any doctor,
dentist, teacher or authority and to have copies of any reports
given to either party as a parent.
(d) Livina Arranaements, Wife and Husband do not
want to establish a fixed schedule regarding the physical custody
of the children at this time, Instead, the parties believe that
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it i. in the children'. be.t interests to maintain the flexible
sohedule that they now have, It is understood by the partie.
that the exact period of physical custody must necessarily be the
subject of periodic negotiation between them, They therefore
agree to con.ult as necessary and to cooperate with one another
in schedUling the children's custodial periods with their father
and to take into account the respective schedules and obligations
of each other and of the children, In light of the age of the
children, the parties further agree to take into account the
wiehes and desires of the children in scheduling custodial
arrangements, Husband shall give Wife written notice of his
intention to have custody of the children at least twenty-one
(21) days in advance, Wife agrees that she will pay directly to
the travel agent, an amount no greater than the cost of one (1)
round-trip discount, advance purchase coach airline ticket
between her home and Husband'S home for each child two (2) times
each year to facilitate custodial periods with Husband,
9. CHILD SUPPORT,
(a) Basic Child SUDDort,
(1) periodic pavments, Child support shall
be pursuant to the Order entered at 895-85564-DU in the circuit
Court for the county of Ingham, State of Michigan, on May 2,
1995, and any subsequent order.
(b) Health Insurance for Children, Both parties
shall maintain health insurance for the children pursuant to the
Michigan Order,
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(0) Unreimbursed Excenees, The partie. agree
that they will share equally any unreimbursed medical expense.
tor the children including, but not limited to, medical,
hospital, presoription drug, psychiatrio, psyohological, dental,
orthodontio and vision expenses. In a non-emergency situation,
the deoision to inour extraordinary medical expenses shall be by
mutual consent ot the parties, suoh consent not to be
unreasonably withheld, commencing on the execution date of this
Agreement, each party agrees that he or she shall remit to the
other, within seven (7) days of receipt, any reimbursement
received by him or her for claims made by, charges incurred by or
the out-Of-pocket costs of the other party and the children which
are due and owning to the other,
(d) Underqraduate Eduoation, It is the intention
of the parties that their children attend an undergraduate
college or university or other post-secondary educational
institution if academically able and willing to do so, The
parties agree that they will share equally the educational
expenses of their children, "Educational expenses" for purposes
of this subparagraph shall be defined as application fees,
tuition, room and board, books and fees, less a sum equal to
twenty percent (20') of the gross educational expenses per ohild
per year (representing each child's actual or imputed earnings
from employment or work-stUdy) and less any scholarships,
fellowships or grants received by the child but not loans, at
such undergraduate institutions as are reasonable and appropriate
for the children and which have been selected after consultation
between the parties as to the appropriateness of the contemplated
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inatitution. Notwithstanding the foregoing, however, in no event
ahall Hu.band be required to pay, for each child in anyone (1)
acad..ic year, aore than a sum equal to fifty percent (50t) of
the cost of tuition, room and board for that academic year at the
Pennsylvania state University, main campus, for a full-tiae in-
.tate student, nor shall Husband be required to pay for any aore
than four (4) acadeaic years of undergraduate education per
child, nor shall he have any obligation for any educational
expenses not incurred within five (5) years of each child'.
graduation froa high school, Except as otherwise set forth
herein, Husband's obligation pursuant to this subparagraph shall
be paid directly to the educational institution. In the event of
Husband'. disability or unemployment which resulcs in a
.ubstantial reduction of incoae at a time during which he has
obligations pursuant to this subparagraph, Husband's total
obligation will reaain unchanged but he shall be entitled to pay
off the obligation, a8 he and Wife shall agree, at a reduced rate
over time by paying, directly to Wife, reimbursement for any
payment. she aade toward Husband's obligation during his period
of disability.
10. WAIVER OF INHERITANCE RIGHTS. Effective upon the
execution date of this Agreement, Husband and Wife each waives
all rights of inheritance in the estate of the other, any right
to elect to take against the will or any trust of the other or in
which the other has an interest, and each of the parties waives
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any additional rights which said party has or may have by reason
of their .arriage, except the rights saved or created by the
teras of this Agreement. This waiver shall be construed
generally and shall include, but not be limited to, a waiver of
all rights provided under the laws of Pennsylvania, or any other
jurisdiction, Notwithstanding the foregoing, however, in the
event that either party hereto executes a will or codioil after
the execution date of this Agreement and provides for the other
spouse in said will or codicil a benefit other than as provided
by the terms of this Agreement, then this waiver provision shall
not bar the surviving spouse from taking under such will or
codicil.
11, WAIVER OF BENEFICIARY DESIGNATION, Unless
otherwise specificallY set forth in this Agreement, each party
hereto specifically waives any and all beneficiary rights in and
to any asset, benefit or like program carrying a beneficiary
designation which belongs to the other party under the terms of
this Agreement, including, but not limited to, pensions and
retirement plans of any sort or nature, deferred compensation
plans, life insurance policies, annuities, stock accounts, bank
accounts, final paychecks or any other post-death distribution
scheme, and each party expressly states that it is his and her
intention to revoke by the terms of this Agreement any
beneficiary designations naming the other which are in effect as
of the date of execution of this Agreement. If and in the event
the other party continues to be named as a beneficiary and no
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alternate benericiary is otherwise designated, the beneficiary
shall be deemed to be the estate or the deceased party,
Notwithstanding the foregoing, however, in the event that either
party hereto specificallY designates the other party as a
beneficiary of any asset after the date of execution of this
Agreement, then this waiver provision shall not bar that party
from qualifying as such beneficiary.
12, RELEASE OF CLAIMS,
<a> Husband and Wife acknowledge and agree that
the property dispositions provided for herein constitute an
equitable distribution of their assets and liabilities pursuant
to 13502 of the Divorce Code and Husband and Wife hereby waive
any right to division of their property except as provided for in
this Agreement, Furthermore, except as otherwise provided for in
this Agreement, each of the parties hereby specifically waives,
releases, renouncss and forever abandons any claim, right, title
or interest whatsoever he or she may have in property transferred
to the other party pursuant to this Agreement or identified in
this Agreement as belonging to the other party, and each party
agrees never to assert any olaim to said property or proceeds in
the future. However, neither party is released or diacharged
from any obligation under this Agreement or any instrument or
document executed pursuant to this Agreement. Husband and Wife
shall hereafter own and enjoy independently of any claim or right
of the other, all items of personal property, tangible or
intangible, acquired by him or her from the date of execution of
21
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this Agreement with full power in him or her to dispose of the
.a.e fully and effectively for all purposes,
(b) Each party hereby absolutely and
unconditionally releases and forever discharges the other and the
e.tate of the other for all purposes from any and all rights and
obligations which either party may have or at any time hereafter
has for past, present or future support or maintenance, alimony
pendente lite, alimony, equitable distribution, counsel fees,
costs, expenses and any other right or obligation, economic or
otherwise, whether arising out of the marital relationship or
otherwise, including all rights and benefits under the
Pennsylvania Divorce Code of 1980, its supplements and
a.endments, as well as any other law of any other jurisdiction,
except and only except all rights and obligations arising under
this Agreement or for the breach of any of its provisions,
(c) Each party hereby absolutely and
unconditionally releases and forever discharges the other and his
or her heirs, executors, administrators, assigns, property and
estate from any and all rights, claim, demands or obligations
arising out of or by virtue of the marital relationship of the
parties whether now existing or hereafter arising, The above
release shall be effective regardless of whether such claims
arise out of any former or future acts, contracts, engagements or
liabilities of the other or by way of dower, curtesy, widow's or
widower's rights, family exemption or similar allowance, or under
the intestate laws or the right to take against the spouse's
22
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will, or the right to treat a lifetime conveyance by the other a8
testamentary or all other rights of a surviving spouse to
participate in a deceased spouse's estate, whether arising under
the laws of Pennsylvania, any state, commonwealth or territory of
the United states, or any other country,
(d) Except for the obligations of the parties
contained in this Agreement and such rights as are expressly
re.erved therein, each party gives to the other by the execution
of this Agreement an absolute and unconditional release and
discharge from all causes of action, claims, rights or demand
whatsoever in law or in equity, which either party ever had or
now has against the other.
13, PRESERVATION OF RECORDS. Each party will keep and
preserve for a period of four (4) years from the date their
divorce decree is entered all financial records relating to the
marital estate, and each party will allow the other party access
to those records in the event of tax audit,
14, MODIFICATION, No modification, rescission, or
amendment to this Agreement shall be effective unless in writing
signed by each of the parties hereto,
15. SEVERABILITY. If any provision of this Agreement
i8 held by a court of competent juriSdiction to be void, invalid
or unenforceable, the remaining provisions hereof shall
nevertheless survive and continue in full force and effect
without being impaired or invalidated in any way,
23
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16. BREACH. If either party hereto is in breach of
any provi.ion hereof, the other party shall have the right, at
hi. or her election, to sue for damages for such breach, or seek
.uch other remedies or relief as may be available to him or her,
The non-breaching party shall be entitled to recover from the
breaching party all costs, expenses and legal fees actually
incurred in the enforcement of the rights of the non-breaching
party,
17, WAIVER OF BREACH, The waiver by one party of any
breach of this Agreement by the other party will not be deemed a
waiver of any other breach of this Agreement,
18, NOTICE, Any notice to be given under this
Agreement by either party to the other shall be in writing and
may be effected by registered or certified mail, return receipt
requested, Notice to Wife will be sufficient if made or
addressed to the following:
Alice P,L, Schwartz
110 Parkview Road
New Cumberland, PA 17070
and to Husband, if made or addressed to the following:
Berl N, Schwartz
523 Bainbridge, Apartment 48
East Lansing, HI 48823
Each party may change the address for notice to him or her by
giving notice of that change in accordance with the provisions of
this paragraph,
24
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19. APPLICABLE LAW. All acts contemplated by this
Agreement shall be construed and enforced under the laws of the
coaaonwealth of Pennsylvania in effect as of the date of
execution of this Agreement,
20, AGREEMENT BINDING ON PARTIES AND HEIRS, This
Agreement, except as otherwise expressly provided herein, shall
bind the parties hereto and their respective heirs, executors,
administrators, legal representatives, assigns, and successors in
any interest of the parties,
21. ENTIRE AGREEMENT, Each party acknowledges that he
or she has carefully read this Agreement, inclUding all Exhibits
and other documents to which it refers; that he or she has had
the opportunity to discuss its provisions with an attorney of his
or her own choice, and has executed it voluntarily; and that this
instrument expresses the entire agreement between the parties
concerning the subjects it purports to cover, This Agreement
should be interpreted fairly and simply, and not strictly for or
against either of the parties,
22, INCORPORATION OF EXHIBITS. All Exhibits and other
instruments referred to in this Agreement are incorporated into
this Agreement as completely as if they were copied verbatim in
the body of it,
23, MUTUAL COOPERATION. Each party shall on demand
execute and deliver to the other any deeds, bills of sale,
aseignments, consents to change of beneficiaries of insurance
polioies or other benefits or assets, tax returns, and other
25
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documents, and shall do or cause to be done every other act or
thing that may be necessary or desirable to effectuate the
provisions and purposes of this Agreement, If either party
unreasonably fails on demand to comply with these provisions,
that party shall pay to the other party all attorney's fees,
costs, and other expenses reasonably incurred as a result of such
failure,
24, DATE OF EXECUTION, The "date of execution" or
"execution date" of this Agreement shall be defined as the date
upon which it is executed by the parties if they each have
executed the Agreement on the same date, otherwise, the "date of
execution" or "execution date" of this Agreement shall be defined
as the date of execution by the party last executing this
Agreement,
25. EFFECTIVE DATE, This Agreement shall be effective
and binding upon both parties on the execution date of this
Agreement,
26, AGREEMENT NOT TO BE MERGED, This Agreement shall
survive any divorce decree entered with respect to the parties
and shall be incorporated into any final decree of divorce of the
parties for purposes of enforcement only, but otherwise shall not
be merged into said decree, The parties shall have the right to
enforce this Agreement under the Divorce Code of 1980, as
amended, and in addition, shall retain any remedies in law or in
equity under this Agreement as an independent contract, Such
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re.edie. in law or equity specifically are not waived or
released,
27. EFFECT OF RECONCILIATION OR RECONCILIATION
ATTEMPT, This Agreement shall remain in full force and effect
and shall not be abrogated even if the parties effect a
reconciliation, cohabit as husband and wife or attempt to effect
a reconciliation. This Agreement shall continue in full force
and effect and there shall be no modification or waiver of any of
the terms hereof unless the parties in writing execute a
statement declaring this Agreement or any term of this Agreement
to be null and void,
28, HEADINGS NOT PART OF AGREEMENT. Any headings
preceding the text of the several paragraphs and subparagraphs
hereof are inserted solely for convenience of reference and shall
not constitute a part of this Agreement nor shall they affect its
meaning, construction or effect,
29. COUNTERPARTS, This Agreement may be executed in
counterparts, each of which will be an original and which
together shall constitute one and the same instrument,
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals on the dates of their acknowledgements,
~
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WITNESS)
~nt.L11. r~ ; 1/1,
ITNESS
-41<<.- (]11. ~;,by
ALICE P,L, SCHWARTZ, WIFE
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STATE OF .JI1~.HIQN" 1/ ~1-- ..
COUNTY OF V
)
)
)
BEFORE.~EL the undersigned~authority, on this day personally
.f\1IU,,;;>, L, ~\Wil(k_
appeared &lRb "v~SCHWAR~ , known to me to be the person who
executed the foregoing instrument, and who acknowledged to me
that he executed same for the purposes and considerations therein
expressed.
GIVEj'NDER MY
~ Wj
HAND AND SEAL OF OFFICE this ~ day of
, 1995,
....
F
Notary I
My
Rl L
tfllAA t.I SHill', NeIllY....
lilr rl04u~, Dauphln 1leulIlr,'A
MW CommllllOn bpi'" AIIIIIa -
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.DIBIT "A"
....O.AL .ao..RTY AMD .U..II.I.OI TO .UIBaHD
onyx and Brass Floor Lamp and Shade in living room
similar Floor Lamp in Abby's room
Blue Chair with Flower Print and Wood Legs in living room
Dark Wood Rocker in living room
Console piano in living room (Husband specificallY agrees that if
and in the event that he decides to sell the piano rather than
re.ove it from Wife's residence then Wife shall have the right of
first refusal to purchase the piano before its sale to any third
party)
Paper Weight from mother's trip to Europe in dining room
china cups and Saucers collected by mother, some of which are in
the dining room
singer sewing Machine in family room
Floor Model Radio in family room
Hockney Print and Frame in laundry room
Enameled kitchen table and six metal framed chairs
small T,V, with red sides in basement
Mahogany bedroom set (twin beds, tall chest, two night stands)
Lace
silver
Noritake china set
Bowl from sister Elaine
Brass candlesticks
Tall and short liquor glasses
Tea glasses and brass holders
Bedroom set in daughter Rebecoa's room (whiCh Rebecca may use but
will revert to Husband)
30
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f!
IXHIBIT "A"
PAGE TWO
Convection oven (Husband's mother's)
S.L. Jones painting
chicago painting
Gossip bench
Narenberg oval framed photos
GUlllball machine
Two crystal lamps
Books and records Husband acquired prior to marriage
serving cart and tray in living room
Large red oriental rug in living room
Small oriental rug in dining room
calphalon cookware
Gray 1920's wool rug in guest room
White lamp in guest room
Two complete sets of linen and mattress pads for twin beds
Two bed pillOWS
Bedsprings and mattresses on guest room beds
White wicker rocker and pillows
Amish rocker in family room
Robert Roth's desk in family room
Desk chair in family room
All cd's, vinyl records and video and cassette tapes aoquired by
Husband before separation
31
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IU1Il'1' "&"
PAGE THREE
All booke acquired by Husband
"BronEe" metal floor lamp in family room
standing deek from Husband's office
Joan Marlett paintings and frames as agreed upon by the partie.
McKnight print and frame
swiee cow print and frame
Green comforter and shams in laundry room
Tall bookcaee in basement
Rueeell Wright items
stacking record cases in basement
Bo.e epeakers in baDement
Serving tray holder in basement
Speaker .tands in basement
Shaving mirror in basement
Poultry cutter
Italiante plastic dishes
Vacuum cleaner
Rueeian AIDS print
Coffee mugs from places visited by Husband during marriage
Hueband's clothing
50' of photos and photo albums
Iron lamp
Tenneesee woodcarving-coalminer
Williams-sonoma rooster
31
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ALICE P,L. SCHWARTZ, )
Plaintiff )
)
v. ) NO, 94-2253 CIVIL TERM
)
BERL N, SCHWARTZ, ) CIVIL ACTION - LAW
Defendant ) IN DIVORCE
PRABCIPB TO TRANSMIT aBCORD
TO THE PROTHONOTARY I
Transmit the record, together with the following
information, to the court for entry of a divorce decree:
1, Ground for divorce: Irretrievable breakdown under
(XI Section 3301(cl I I section 33011dl of the Divorce Code,
(Check applicable section),
2, Date and manner of service of the complaintl
Affidavit of Service filed Mav 24, 1994,
3, Complete either paragraph (a) or (b)l
(a) Date of execution of the affidavit of consent
required by Section 3301(c) of the Divorce Code: by plaintiff,
June 21, 1995/ by defendant, June 30. 1995.
(b)(l) Date of execution of plaintiff's affidavit
required by section 3301(d) of the Divorce Code: /
(2) date of service of plaintiff's affidavit upon defendant:
4. Related olaims pending: None - all olaims resolved bv
Marital Settlement Aareement dated Julv 10, 1995, attached to
Decree in Divorce,
Date:
7 liD /fJ
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patricia AI/Hiles, Esquire
HOWETT, KISSINGER' MILES, P,C,
130 Walnut street/P.O, Box 810
Harrisburg, PA 17108
Telephone: 717/234-2616
Attorney 1.0, No. 48203
Counsel for Plaintiff
Alice P,L, Schwartz
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ALICE P.L, SCHWARTZ, ) IN THE COURT OF COMMON PLEAS OF
Plaintiff ) CUMBERLAND COUNTY, PENNSYLVANIA
) 't''1. .2 ) \';J CIVIL J:HlI Ttt.........
v. ) NO.
)
BERL N, SCHWARTZ, ) CIVIL ACTION - LAW
Defendant ) IN DIVORCE
COMPLaIIIT 1M DIVORC.
Plaintiff Alice P,L. Schwartz, by and through her counsel,
Howett, Kissinger' Miles, p,C" hereby files this Complaint in
Divorce and respectfully represents as follows:
1, Plaintiff is Alice P,L. Schwartz, an adult
individual who currently resides at 110 parkview Road, New
Cumberland, Cumberland county, Pennsylvania, 17070,
2, Defendant is Berl N, schwartz, an adult individual
who currently resides at Yorkshire House, Apartment 634, 911
Imhoff Road, Norman, Oklahoma, 73072.
3, The Plaintiff has been a bona fide resident of the
Commonwealth of Pennsylvania for a period of more than six months
immediately preceding the filing of this complaint,
4. The parties are husband and wife having been
lawfully married on June 12, 1971, in Philadelphia, Pennsylvania,
5, Neither Plaintiff nor Defendant is in the military
or naval services of the United States or its allies within the
provision of the Soldiers' and Sailors' civil Relief Act of the
Congress of 1940 and its amendments,
. ,
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6, There have been no prior actions for divorce or
annul.ent in.tituted by either of the parti.. in this or any
other juri.diction,
7, Plaintiff has been advised that counselling is
available and that Plaintiff may have the right to requeet that
the court require the parties to participate in counselling,
8, The marriage of the parties is irretrievably
broken,
9. The parties have lived separate and apart since in
or about December, 1992,
WHEREFORE, Plaintiff Alice P,L, Schwartz respectfully
requests this Honorable Court to enter a Decree of Divorce after
ninety (90) days have elapsed from the date of the filing of this
Complaint and the requisite affidavits have been filed by both
partie. consenting to a divorce pursuant to 1330l(c) of the
Divorce Code, or, in the alternative, Plaintiff has submitted an
affidavit at the appropriate time alleging that the parties have
lived separate and apart for at least the requisite period
specified in 13301(d) of the Divorce Code.
Respectfully submitted,
Date:
1/~/9~
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Patri~ia A{ Miles, Esquire
HOWETT, KISSINGER' MILES, P.C.
130 Walnut Street
P.O, Box 810
HarriSburg, PA 17108
Telephone I 717/234-2616
Attorney 1.0. No. 48203
Counsel for Plaintiff
Alice P,L. Schwartz
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IN TBB COURT or CONNON PLUS or CUMBBRLAHD COUNTY, PBHNSYLVANIA
ALICB P.L. BCB1fDTI , I NO. 94-3364
I
Plaintiff I
I
v. I CIVIL ACTION - LAW
I
BBRL N. BCB1fDTZ, I
I
Defendant I DIVORCB
ANSWER TO DIVORCE COMPLAINT AND COUHTBRCLAIM
ANSWER
Defendant, Berl N, Schwartz, by and through his attorney.,
NBNGBS . SNYDBR, hereby file. this Answer and Counterclaim, the
following of which is a statement.
1, Admitted.
2, Admitted in part, denied in part. The Defendant's
address has changed and i. 523 Bainbridge '48, Bast Lansing, MI
48823.
3,
Admitted,
Admitted.
Admitted.
Admitted.
Admitted,
Admitted,
Denied, On
the contrary, it is averred that the
4,
5,
6.
7,
8.
9.
parties have lived separate and apart since on or before May 15,
1993.
COUNTERCLAIM
COUNT I - BOUITABLE PROPBRTY DISTRIBUTION
10. Paragraphs 1 through 9 are incorporated herein by
reference and made a part hereof.
.
11. Th. plaintiff and D.f.ndant po..... v.riou. item. of
per.on.l property and ....t. whioh .r. .ubj.ot to .quit.bl.
di.tribution by thi. Court.
,12, Th. Pl.intiff r.que.t. the Court to equit.bly di.trib-
uta .11 p.r.on.l prop.rty own.d by the parti...
COUNT II - ~I~NB!' ALIMONY PRNDRNTR LITB.
PQUNSB!! !!U!: COSTS , RIPBNSBS
13, p.r.graph. 1 through 12 .bov. ar. inoorpor.ted her. in
by r.f.r.nce,
1.. The plaintiff i. employed at capital Blue Cro.., 2500
Bl..rton Avenu., Uarri.burg, PA 17110 and h.. .ub.t.nti.l e.rn-
ing..
15. The D.f.ndant ha. in.uffioient me.n. of .upport for
him..lf .nd i. without .ufficient fund. to meet the co.t. .nd
.xp.n... of thi. litig.tion.
. .
16. Th. D.fendant reque.t. .limony pending the divoroe,
alimony .ft.r the divoroe, coun..l fee., co.t. .nd .xpen...
incurred by the Def.nd.nt in conn.ction with the.e proc..ding..
MBNGRS , SNYDBR
Dat.dl ~
CBRTIFICATB OF SBRVICB
I, N. Chri.topher Menge., do hereby certify that a true and
correct copy of the foregoing wa. .erved thie date on the below
n...d individual by placing the .ame in the united state. Mail,
po.tage prepaid thereon, addre..ed a. followe.
Patricia A, Mile., Bequire
HOWITT, KISSINGBR , MILBS, P,C.
130 Walnut street
P.O, Box 810
Harri.burg, PA 17108
MENGBS , SNYDBR
Dated'~
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ALICE P.L, SCHWARTZ, ) IN THE COURT OF COMMON PLEAS OF
plaintiff ) CUMBERLAND COUNTY, PENNSYLVANIA
)
v, ) NO, 94-2253 CIVIL TERM
)
BERL N, SCHWARTZ, ) CIVIL ACTION - LAW
Defendant ) IN DIVORCE
PLAINTIFF'S AFFIDAVIT OF CONSENT
AND WAIVER OF COUNSELING
1. A Complaint in Divorce under 1330l(c) of the
Divorce Code was filed on April 29, 1994,
2, The marriage of plaintiff and Defendant is
irretrievably broken, and ninety days have elapsed from the date
of filing of the Complaint.
3, I consent to the entry of a Final Decree in
Divorce,
4, I understand that if a claim for alimony, alimony
pendente lite, equitable distribution of marital property or
counsel fees or expenses has not been filed with the court before
the entry of a Final Decree in Divorce, the right to claim any of
them will be lost,
5, I have been advised of the availability of
marriage counseling, and understand that I may request that the
Court require that my spouse and I participate in cO'Jnseling, I
further understand that the Court maintains a list of marriage
counselors in the prothonotary's Office, which list is available
to me upon request, Being so advised, I do not request that the
Court require that my spouse and I participate in counseling
prior to a divorce decree being handed down by the Court,
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ALICE P.L. SCHWARTZ, ) IN THE COURT OF COMMON PLEAS OF
Plaintiff ) CUMBERLAND COUNTY, PENNSYLVANIA
)
v, ) NO, 94-2253 CIVIL TERM
)
BERL N, SCHWARTZ, ) CIVIL ACTION - LAW
Defendant ) IN DIVORCE
DEFENDANT'S AFFIDAVIT OF CONSENT
AND WAIVER OF COUNSELINq
1. A Complaint in Divorce under 13301(c) of the
Divorce Code was filed on April 29, 1994,
2, The marriage of Plaintiff and Defendant is
irretrievably broken, and ninety days have elapsed from the date
of filing of the Complaint,
3, I consent to the entry of a Final Decree in
Divorce.
4, I understand that if a claim for alimony, alimony
pendente lite, equitable distribution of marital property or
counsel fees or expenses has not been filed with the Court before
the entry of a Final Decree in Divorce, the right to claim any of
them will be lost,
5. I have been advised of the availability of
marriage counseling, and understand that I may request that the
Court require that my spou~e and I participate in counseling. I
further understand that the Court maintains a list of marriage
counselors in the Prothonotary's Office, which list is available
to me upon request, Being so advised, I do not request that the
Court require that my apoule and I participate in counaelinq
prior to a divorce decree being handed down by the Court,
,
"'*
"ftto.
.-
ALICE P,L. SCHWARTZ, ) IN THE COURT OF COMMON PLEAS OF
Plaintiff ) CUMBERLAND COUNTY, PENNSYLVANIA
)
v. ) NO, 94 - 22!53 CIVIL TERM
)
BERL N. SCHWARTZ, ) CIVIL ACTION - LAW
Defendant ) IN DIVORCE
AFFIDAVIT OF SIRVIC.
COMMONWEALTH OF PENNSYLVANIA )
) ...
COUNTY OF DAUPHIN )
Patrioia A, Miles, being duly sworn aooording to law,
depos.s and says that she is an attorney at law duly ~uthorized
to praotioe in the County of cumberland, Commonwealth of
Pennsylvania, and that on the 2nd day of May, 1994, she sent the
original of the attaohed letter, with whioh was enolosed a
oertified, time-stamped oopy of the Complaint in Divoroe in the
above-oaptioned matter, properly endorsed, to the Defendant,
BBrl N, Sohwartz, by certified mail, postage prepaid, return
reoeipt requested, restrioted delivery, pursuant to Pa,R,C,P.
412, to Yorkshire House, Apartment 634, 911 Imhoff Road, Norman,
Oklahoma, 73072, the Defendant's last known address, and that the
return oard (No. P-089-536-314) whioh was signed by Berl M,
Sohwartl, marked as having been delivered to him on May 6, 1994,
is attaohed hereto and made a part hereof,
1~~~~
Patrioia A, M les, Esquire
HOWETT, KISSINGER' MILES, P,C,
130 Walnut Street
p, 0, Box 810
Harrisburg, PA 17108
Telephone I (717) 234-2616
Attorney I,D, .48203
SWORN TO AND SUBSCRIBED
before me this ~~
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IN THE COURT OF COMMON PLBAS OF CUMBBRLAND COUNTY, PENNSYLVANIA
NO. 94 I
.II~~
ALICB P.L. SCHWARTZ, I
I
. Plaintiff I
I
v. I
I
BERL N. SCHWARTZ, I
I
Defendant I
CIVIL ACTION - LAW
DIVORCE
PRAECIPB FOR BNTRY OF APPBARANCB
TO THB PROTHONOTARY I
Please enter my appearance on behalf of the above-captioned
Defendant.
Dated I September 0, 1994
N. C r stop er
Sup. ct. I.D. N
145 Bast Market
York, PA 17401
(717) 043-0046
Attorneys for Defendant
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Hi, Allcc:
Somc cooperution would appellI' to bc in ordcr. Abby still has not
signcd the relcasc for mc 10 proceed with the 101ln. (The form said if it wasn't
retunlcd within scven days, it WlIS invalid, so 1 might havc to Stllrt over.) It
seems 10 mc it is in your bcsl inlcrcsllo cxplllinlo hcr thai you're nol going
10 PllY thc diffcrence. Maybc thai will gctlhrough to her, She claims she just
forgol; Frcud would probllbly sllY diffcrcntly. Inllny casc, Ihis is going to be
1I problem cvcry scmestcr if shc docsn't stllrt lIcccpting this minimlll
responsibility fur helping youllnd me havc thc honor of paying for hcr
collcgc cduclltlon, Exceptlhat iI's nol going 10 be 1I problem for me becausc
1 don'l intend to rcmind her cver lIgain. I'll send hcr Ihe fonn lInd the
cnvelopc to mull il in; Ihe rcst is up to hcr.
Also. 1 wlInttuition hills beforc I pay IInylhinl: and 1 want l:rudes
before 1 PllY for the next semester. ) hopc you Ul1rec that's n~usonahl~. Plcllse
ltlmc know.
Rebeccll and) had lItcrrific lime. I hope going to thc MSU-Pcnn Slatc
gllme will becomc 1I1radition for the two of LIS.
I'm planning 1I slllVrise birthday P,1I1Y for my mother's 85th birlhdllY
on SalUrday, April R. ) hope YOll and Abby will cOl11e to Florida for it. 1 will
scnd both of you an invitation. I've 1I1ready spokcntD Rcbecca. I'll pay
Rcbcccu's cxpenses, ) know that sounds lIrbitrury, but under Ihe
circumstances, I'm not inclined to buy her 1I plane tickelthllt she might
forget to use,
Oh. lunderstllnd Rebeccll is going to live ofT campus next year. How
do you wanllo work thut out'! I'm prepllred 10 pay morc of the tuition
(wilhlnlhe limits of our agreement on overall cOSls) if you me willing to pay
more of Ihe room and board. That wllY. I'll still be paying penn state directly,
liS our agreement requires.
I'lellse send me the tuition bills for hath girls for fllll semester. And,
ugaln, ) wunltheir grade rcpor1s inll timely manner. like within a week of
when YOII see them.
I'm ok wilh ahby fuiling psychology. which is wherc she seems 10 be
headed, She says she's gelling As in e\'erything else. Ovcrall, I'm prepared to
illu pa}'int; as lOll!: as tile j;irls l1el at least a 2,5 the firsl }'car.
Cheers. \'
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5, On July 10, 1995, Ihe Petitioner and Respondent signed a Marital Setllement Agreement
("Agreement"), A true and correct copy of the Agreement Is allached hereto as "Exhibit A" and
Incorporated herein,
6, On July 26, 1995, this Court enlered a Decree In Divorce and Order Incorporallng the terms.
provisions and condlllons of the Agreement Into the Decree In Divorce, A true and correct copy of
Ihe Decree In Divorce Is allached hereto, Incorporated herein and matlled as "Exhibit S",
7, In accordance wllh said Decree and Order, Ihe Agreemenl daled July 10, 1995 executed by the
parties was Incorporaled In the Divorce Decree and jurisdlcllon over the Decree and Order for the
purpose of Insuring compliance with and enforcement of the Agreemenl was retained by this court as
set forth In Paragraph 19 of the Agreement, Exhibit "A",
8. Pursuant to paragraph 9(d) the Agreement, the Petllloner and Respondent agreed to share equally In
the post-secondary educallonal expenses of their children minus \wenly percent(20%) to be paid by
each child,
9, Soth daughters attended college during the 1999-2000 school year. Rebecca at Penn State
University and Abagall at West Virginia University.
10, An accounllng of all applicable expenses from Penn State University for the 1999-2000 school year
totaling $12,574,22 Is allached hereto, Incorporated herein and marked as "Exhibit Co,
11. An accounllng of all applicable expenses from West Virginia University for the 1999-2000 school year
totaling $15,613,25 Is allached herelo, Incorporated herein and marked as "Exhlbll 0",
12, Under the lenns of Ihe Agreemenl, the Respondent Is responsible for 40% of these expenses or
$5,029.89 for Penn State and $6,245.30 for West Virginia.
13. To date, Ihe Respondent has paid $1,159.00 towards tulllon at Penn State University. The remaining
portion of Penn State1999.2000 college expenses 10 be paid by Ihe Respondent Is $4,068.94,
14, The Respondent has nol made any payments towards the expenses Incurred at West Virginia
University.
15. The total amount owed by the Respondent for bolh children for the 1999.2000 school year Is
$10,314.24.
16. As a result of the Respondent's failure to contrlbule his portion of college expenses, the Respondent
15 In breach of the Marital Selllement Agreement.
17. Pursuant to Paragraph 16 of the Agreement, the Respondent 15 responsible for the payment of all
costs, expenses and legal fees Incurred by the Pelllloner In enforcing her rights under the
Agreement.
10. At the time of hearing, the Petitioner will set forth a statement of her legal fees In Instituting and
completing this legal acllon 10 enforce the terms of the Agreement.
19. The Petitioner alleges that the Respondent's conduct set forth herein 15 In vlolallon of the terms of the
agreement, which Is Incorporated In the Decree of Court and therefore Respondent 15 In contempt of
the Court's Order Incorporating the Agreement.
20, Pursuant to the Pennsylvania Divorce Code, 23 Pa. C.S,A. S3502(e), the Court of Common Pleas of
Cumberland County has the power to effect compliance with the terms of the Agreement and to enter
a judgment against the Respondent.
WHEREFORE, the Petllloner requests your Honorable Court to Issue a Rule to Show Cause upon
the Respondent, returnable al a hearing, and following such hearing to:
A. Order the Respondent to comply wllh the terms of the Agreement;
8, Find the Respondenlln conlempt of Court;
C. Enter a judgment In favor of the Petitioner agalnslthe Respondent In the amount of
$10,314,24 plus Interest;
D. Order the Respondenl to pay Ihe Petitioner's allorneys fees, costs and expenses In
accordance with Paragraph 19 of the Agreement, Exhibit "A" plus Interest;
YEBlBCAIlON
I, Alice P,L. Schwartz, do verify Ihat the statements made In the foregoing Pelltlon are true and
correct to the best of my knowledge. Information and belief. 1 understand that false statement made herein
are subJect to the penalties of 18 Pa, e.s. 64904 relallng to unswom falslflcallon to aulhorllles.
-r1Jc/.O/ ~
. Alice P,L. Schwartz :.>
Dated:
/J~ .,J.,()) J&IrM
.
---.-...
.
"
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TABLE OF CONTENTS
H.adina
RAil
7. HEALTH INSURANCE FOR HUSBAND
8 . CUSTODY
(a) Leqal and Physical custody
(b) Emerqencies
(c) Access to Records
(d) Livinq Arranqements
9 . CHILD SUPPORT
(a) Basic Child support
(1) Periodic Payments
(b) Health Insurance for Children
(c) Unreimbursed Expenses
(d) Underqraduate Education
10. WAIVBR OF INHERITANCE RIGHTS
11. WAIVER OF BENEFICIARY DESIGNATION
12 . RELEASE OF CLAIMS
13. PRESERVATION OF RECORDS
14. MODIFICATION
lS. SEVERABILITY
16. BREACH
17. WAIVER OF BREACH
18. NOTICE
19. APPLICABLE LAW
20. AGREEMENT BINDING ON PARTIES AND HEIRS
ii
lS
15
15
16
16
16
17
17
17
17
18
18
19
20
21
23
23
23
24
24
24
25
215
f
.
TABLE OF CONTENTS
H.adina Wi
21. ENTIRE AGREEMENT 25
22. INCORPORATION OF EXHIBITS 25
,
23. MUTUAL COOPERATION 25
24. DATE OF EXECUTION 26
215. EFFECTIVE DATE 26
26. AGREEMENT NOT TO BE MERGED 26
27. EFFECT OF RECONCILIATION OR
RECONCILIATION ATTEMPT 27
28. HEADINGS NOT PART OF AGREEMENT 27
211. COUNTERPARTS 27
Exhibit "A" 30
11i
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----- -- - ---.-..-- -..
-------------------- -_.- .. --~
MARITAL SETTLEMENT AGREEKBNT
r
THIS AGREEMENT made this ItJ'l>... day of - .,.~ '
1995, by and between ALICE P.L. SCHWARTZ of Cumberland county,
pennaylvania, (hereinafter referred to as "Wife"), and BERL N.
SCHWARTZ of East Lansing, Michigan, (hereinafter referred to as
"Husband") ,
WITNESSETH:
WHEREAS, Alice P.L. Schwartz, social security number 172-42-
7980, was born on September 12, 1949, and resides at 110 parkview
Road, New cumberland, Cumberland county, Pennsylvania, 17070.
WHEREAS, Berl N. Schwartz, social security number 289-40-
7991, was born on January 24, 1947, and resides at 523
Bainbridge, Apartment 48, East Lansing, Michigan, 48823.
WHEREAS, the parties hereto are husband and wife, having
been laWfully married on June 12, 1971, in Philadelphia,
Pennsylvania, and are the parents of the following minor
children I
Abagail Tobiah Schwartz
F
F
Date of Birth
April 3, 1981
April 3, 1981
HAM
Qu
Rebecca Neumann Schwartz
WHEREAS, the parties have lived separate and apart for more
than two years; and
WHEREAS, 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' .ettlInq-of'aii -ma-tters between them relating to the
~-_. ._. -- -------_..- -- --
ownership of real and personal property, the support and
maintsnance of one another and of their children, and in general,
the .ettling of an~ and all claims and possible claims by one
aqainlt the other or against their respective estates.
NOW, THEREFORE, in consideration of these premises, and of
the mutual promises, covenants, and undertakings hereinafter set
forth, and for other good and valuable consideration, receipt and
SUfficiency of which is 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. Wife is represented by
Patricia A. Miles, Esquire. Until June 9, 1995, Husband was
represented by N. Chrietopher Menges, Esquire. Each party
acknowledges that he or she has had the opportunity to receive
independent legal counsel of his or her selection, and that each
fully understands the facts and 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, 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 improper or
illegal agreement or agreements. In addition, each party hereby
acknowledges that he or she is aware of the impact of the
Pennsylvania Divorce Code, 23 Pa.C.5.A. S3101, et. sea., whereby
the court has the right and duty to determine all marital rights
2
r
------cr--fhe-partiee lncl"uding-di"vorce," -alimony, alimony cendente un,
equitable distribution of all marital property or property owned
or possessed individually by the other, counsel fees and costs of
litigation and, fully knowing the same, and being fully advised
of his or her rights thereunder, each party hereto still desires
to execute this Agreement acknowledging that the terms and
conditions set forth herein are fair, just and equitable to each
of the parties and waives his and her respective right to have
the Court of Common Pleas of cumberland County, or any other
court of competent jurisdiction, ~ake any determination or order
affecting the respective parties' rights to alimony, alimony
cendsnte !itA, equitable distribution of all marital property,
counsel fees and costs of litigation, or any other right arising
from the parties' marriage.
2. DISCLOSURE OF ASSETS. Each of the parties hereto
acknowledges that he or she is aware of his or her right to
engage in discovery, including but not limited to, written
interrogatories, motions for production of documents, the taking
of oral depositions, the filing of inventories, and all other
means of discovery permitted under the Pennsylvania Divorce Code
or the Pennsylvania Rules of civil Procedure and each of the
parties specifically waives his or her right to engage in such
disccvery. Each of the parties further acknowledges that he or
she is aware of, and specifically waives, his or her right to
have the real and/or personal property, estate and assets,
earnings and inccme cf the other assessed or evaluated by the
,
3
- -courts-oi-thiii-conUnonwealth ar- any-other court or -competent - -------
jurisdiction. The respective parties do hereby acknowledge,
recognize and accept that there has been full and fair disclosure
to the other of his or her assets and liabilities, and each party
agrees that any right to further disclosure, valuation,
enumeration or statement thereof in this Agreement is hereby
specifioa11Y waived, and the parties do not wish to make or
append hereto any further enumeration or statement. The parties
hereby acknowledge and agree that the division of the marital
a..ets as set forth in this Agreement is considered fair,
reasonable and equitable, and is satisfactory to them. Each of
the parties hereto further covenants and agrees for himself and
berself and bis or her beirs, executors, administrators or
a..igns, that he or she will never at any time hereafter sue the
otber party or his or her heirs, executore/ administrators or
assigns in any action of contention, direct or indirect, and
all.ge therein that there was a denial of any rights to full
disclosure, or that there was any fraud, duress, undue influence,
or tbat there was a failure to have available full, proper and
independent representation by legal counsel.
3. PERSONAL RIGHTS. Husband and Wife may/ at all
times hereafter, live separate and apart. Each shall be free
from all control, restraint, interference and 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
,
4
.'
,
benefit, conduct, carryon or 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 cause
which led to, or resulted in, the continuation of their living
apart. Husband and Wife shall not molest, harass or disturb 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. Neither party will
interfere with the use, ownership, enjoyment or disposition of
any property now owned by or hereafter acquired by the other.
4. MUTUAL CONSENT DIVORCE. The parties acknowledge
that Wife initiated a divorce action in the Cumberland county
Court of Common Pleas at No. 94-2253 asserting irretrievable
breakdown of marriage and that ninety (90) days have expired from
the date the complaint was filed. Therefore, the parties agres
that contemporaneously with the execution of this Agreement, each
shall sign and have duly acknowledged an affidavit of consent to
a divorce pursuant to 13301(0) of the Divorce Code. Said
affidavits shall be promptly transmitted to counsel for Wife who
will immediately file a praecipe to transmit record and vital
statistics form to precipitate the prompt entry of a decree of
divorce.
~'
5. EOUITABLE DISTRIBUTION.
(a) Real Property. Wife and Husband acknowledge
that Wife holds title to the premises identified as 110 parkview
5
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,
.
Road, New Cumberland, Cumberland County, Pennsylvania 17070
(hereinafter "Wife's residence"). The parties agree as follows
with ~espect to Wife's residence:
(1) Husband hereby waives, relinquishes and
releases for all time any and all past, p~esent or future right,
title, claim or interest in and to Wife's residence.
(2) Husband agrees that any and all
homeowners' pOlicies, title policies and any other policy of
insurance with respect to Wife's residence shall reflect Wife as
sole owner thereof and further agrees that Wife shall be entitled
to receive any payments now or hereafter due under such insurance
policies.
...
(3) Wife shall be solely responsible for all
costs, expenses and liabilities associated with or attributable
to Wife's residence, including but not limited to any mortgage
obligations, real estate taxes, insurance premiums, utilities,
maintenance and repairs and Wife shall keep Husband and his
successors, assigns, heirs, executors and administrators
indemnified and held harmless from any liability, cost or expense
which may be incurred in connection with such liabilities and
expenses.
(b) Contents of the Parties' Resoective
~dences and Personal Prooertv.
(1) Except as otherwise provided herein, as
of the date of execution of this Agreement, Husband shall set
over, transfer and assign to Wife all of his right, title, claim
and interest in and to all of the contents of Wife's residence
6
,
and any personal property now in the possession or control of
Wife including, but not limited to, all furniture, furnishing.,
rug., carpets, silver, china, household appliances and equipment,
clothes, jewelry, personalty and other items of tangible property
of wbatever nature currently located in Wife's residence or
elsewbere. Notwithstanding the foregoing, the partiee agree that
they will divide equally between themselves bric-a-brac, poster.,
paintings and art work not specifically addressed in Exbibit "A"
bereto. If they are unable to agree, said items shall be
distributed between them by lottery with each party selecting one
it.. in turn with the other and Husband having the first turn.
In addition, Husband may remove, at his sole discretion and at
bis sole expense, and may retain as his sole and separate
property, all those items set forth on Exhibit "A" attached
bereto and incorporated herein by reference, as well as the other
property belonging to him by the terms of this subparagrapb, if
and only if said items are removed from Wife's residence within
ninety (9~lalj from the diUre a divorce decree iG entered with
~ .Q..~o1-f::r tbr--f:k c...u~:l.~ f1o,fIo-. ~
respect to e-1Iarties)^ In the event of a medical emergenliy, as
attested to by a physician, Husband shall be given such
additional time as is reasonable and necessary to remove the
property belonging to him by the terms of this subparagraph. If
Husband fails to remove said items within the requisite time
frame, then all such items not removed shall be deemed to be the
sole and separate property of Wife and she may retain or dispose
--. fJl(~(f.l'~
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~
of 8uoh items as she alone sees tit, tree and clear any right,
title or interest in and to such items by Husband.
(2) As ot the date of execution ot this
Agreement, Wife hereby sets over, transfers and aesigns to
Husband all of her right, title, claim and interest in and to all
of the contents of Husband's current residence and any personalty
in Husband's possession and control including, but not limited
to, all furniture, furnishings, rugs, carpets, silver, china,
household appliances and equipment, clothes, jewelry, personalty
and other items of tangible property of whatever nature located
in Husband's residence or elsewhere.
(c) Motor Vehicles.
(1) Husband agrees that wife shall retain
possession of and receive as her sole and separate property the
1987 Toyota Celica automobile, along with all rights under any
insurance policy ther.eon and with all reeponsibility tor payment
of any outstanding indebtedness pertaining thereto and insurance
thereon, free of any right, title, claim or interest of Husband.
(2) Wife agrees that Husband shall retain
possession of and receive as his sole and separate property the
1987 Toyota Camry L.E. automobile along with all rights under any
insurance policy thereon and with all responsibility for payment
of any outstanding indebtedness pertaining thereto and insurance
thereon, free of any right, title, claim or interest of Wife.
(3) Wife and Husband agreed to execute,
acknowledge and deliver within thirty (30) days upon request of
"
B
,
the other, any and all instruments or documents necsssary to
ettectuate the terms of this subparagraph.
(4) Wife and Husband agree that each will
indemnify and hold the other and his or her property harmless
trom any liability, cost or expense, including attorneys fees,
inourred in connection with the automobiles awarded to each party
by the terms of this subparagraph.
(d) Pension/Retirement Funds. Wife and Husband
each hereby specificallY releases and waives any and all
intersst, claim or right that she or he may have in and to any
and all retirement benefits (including but not limited to pension
or profit sharing benefits, deferred compensation plane, 401(k)
plans, individual retirement accounts or other similar benefits)
ot the other party, specificallY to include a waiver of any
beneticiary designation thereunder. The parties agree that they
shall execute any documents pursuant to the Retirement Equity Act
or any similar act that may be required from time to time to
accomplish the purpose of this subparagraph.
(e) cash Accounts and other Funds, Wife agrees
that Husband shall retain as his sole and separate property, free
from any claim or right of Wife, any and all stocks, bonds and
sums of cash in savings or checking accounts, mutual funds, stock
accounts, or any other assets of 'a similar nature which now are
titled in Husband's name alone. Husband agrees that Wife shall
retain as her sole and separate property, free from any claim or
right of Husband, any and all stocks, bonds and sums held 1n
9
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,
check in; or savings accounts, mutual funds, stock accounts, or
any other assets of a similar nature which now are titled in
Wife's name alone.
(f) J.e. Bradford Joint Accounts. The parties
acknowledge that they are the joint owners of money market and
stock fund accounts, No. 105-7970-1-4-205, at J.e. Bradford. The
parties agree that the joint accounts shall be divided equally
betwsen them and that each party may use, enjoy or dispose of his
or her share as each sees fit. The parties agree that each will
execute any documents necessary to effectuate the terms of thie
subparagraph within fourteen (14) days of his or her receipt of
said documents.
~
(g) Life Insurance. Wife and Husband hereby
specifically release and waive any and all interest, claim, or
right that he or she may have in and to any and all policies of
life insurance insuring the life of the other, along with all
incidents of ownership pertaining to same, including cash value,
if any.
(h) Lumc Sum to Husband. As part of the
equitable distribution of the parties' marital property, wife
agrees that she shall pay to Husband a lump sum of One Thousand
Three Hundred Nineteen Dollars ($1,319) within sixty (60) days of
the date a divorce decree is entered with respect to the parties.
The parties agree that the lump sum from Wife to Husband is in
the nature of a property distribution and is not alimony.
10
.
Therefore, this sum shall not be deductible by Wife nor
includeable in Husband's income for tax purposes.
(i) Miscellaneous Procertv. All property not
specifically addressed herein shall be her9after owned by the
party to whom the property is titled I and if untitled, the party
in poss.ssion. This Agreement shall constitute a sufficient bill
of sale to evidence the transfer of any and all rights in such
prop.rty from each to the other.
(j) ProDertv to Wife. The parties agree that
Wife shall own, possess, and enjoy, free from any claim of
Husband, the property awarded to her by the terms of this
Agreement. Husband hereby quitClaims, assigns and conveys to
Wife all such property, together with any insurance policies
covering that property, and any escrow accounts relating to that
property. This Agreement shall constitute a SUfficient bill of
Bale to evidence the transfer of any and all rights in such
property from Husband to Wife.
(k) Procertv to Husband. The parties agree that
Husband shall own, possess, and enjoy, free from any claim of
Wife, the property awarded to him by the terms of this Agreement.
Wife hereby quitClaims, assigns and conveys to Husband all such
property, together with any insurance policies covering that
property, and any escrow accounts relating to that property.
This Agreement shall constitute a sufficient bill of sale to
evidence the transfer of any and all rights in such property from
Wife to Husband.
.
11
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(l)- Assumction of Liabi1itiss.
(l) Husband agrees that he shall be solely
responsible for all debt he has incurred in his name alone,
including, but not limited to obligations to issuers of credit
cards in his name and Husband further agrees that he will
indemnify a~d hold wife and her property harmless from any
liability, cost or expense, including attorney's fees, associated
with these obligations.
(2) Wife agrees that she shall be solely
responsible for all debt she has incurred in her name alone,
including but not limited to obligations to issuers of credit
cards in her name, and the loan against her 40l(k) plan, as well
as the parties' joint obligation to Wife's mother in the amount
of Nineteen Thoueand Dollars ($19,000), and Wife further agrees
that she will indemnify and hold Husband and his property
harmle.. from any liability, cost or expense, including
attorney's fees, associated with these obligations.
(3) Unless otherwise provided herein, each
party hereby assumes the debts, encumbrances, taxes and liens on
all the property each will hold subsequent to the data of this
Agreement, and each party agrees to indemnify and hold harmless
the other party and his or her property from any claim or
liability that the other party will suffer or may be required to
pay because of such debts, encumbrances or liens.
(m) L~abilitv Not Listed. Each party represents
and warrants to the other that he or she has not incurred any
12
debt, obligation or other liability, other than those describsd
in this Agreement, on which the other party ie or may be liable.
A liability not disclosed in this Agreement will be the sole
responsibility of the party who has incurred or may hereafter
incur it, and each party agreee to pay it as the same shall
become due, and to indemnity and hold the other party and his or
her property harmless tram any and all such debts, obligations
and liabilities.
(n) Indemnitication at wite. If any claim,
action or proceeding is hereatter initiated seeking to hold wit.
liable for the debts or obligatione assumed by Husband under this
Agr.emant, Hueband shall, at his sole expense, de tend wife
against any such claim, action or proceeding, whether or not
well-founded, and indemnity her and her property against any
damages or loss resulting therefrom, including, but not limited
to, costs of court and attorney1s fees incurred by Wife in
connection therewith.
(0) Indemnitication of Husband. If ny claim,
action or proceeding is hereafter initiated seeking ;0 hold
Husband liable for the debts or obligations assumed by wife under
this Agreement, wife shall, at her sole expense, defend Husband
aqainet any such claim, action or proceeding, whether or not
well-founded, and indemnify him and his property against any
damages or loss resulting therefrom, including, but not limited
to, costs of court and attorney's fees incurred by Husband in
connection therewith.
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(p) Warrantv as to Future Obliaations. Husband
and Wite shall take all steps necessary to assure that no credit
cards or similar accounts or liabilities exist which provide for
joint liability. From the date of execution of this Agreemsnt,
each party shall use only those credit cards and accounts for
which that party is individually liable and the parties agree to
cooperate in closing any and all accounts on which joint
liability may be incurred. Husband and Wife each represents and
warrants to the other that he or she will not at any time in the
future incur or contract any debt, charge or liability for which
the other, the other's legal representatives, property or estate
may be responsible. Each hereby agrees to indemnify, save and
hold the other and his or her property harmless from any
liability, loss, cost or expense whatsoever, including attorney's
tee., incurred in the event of breach hereof.
6. WAIVER OF ALIMONY. The parties acknowledge that
inflation may increase or decrease, that their respective incomes
and assets may SUbstantially increase or decrease in value, that
either may be employed or unemployed at various times in the
tuture, and that notwithstanding these or other economio
oircumstances, the parties acknowledge that they each have
sutticient property and resources to provide for her or his
reasonable needs and that each is able to support herself or
himself without contribution from the other. Therefore, the
parties hereby expressly waive, discharge and release any and all
rights and claims which they may now or hereafter have, by reason
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14
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of the parties' marriage, to alimony, alimony pendente lite,
support or maintenance and they acknowledge that this Agreement
constitutes a tina1 determination for all time at either party'e
obligation to contribute to the support and maintenance at the
other. It shall be, from the execution date of this Agreement,
the sole responsibility of each of the respective parties to
sustain himself or herself without seeking any additional eupport
from the other party.
7. HEALTH INSURANCE FOR HUSBAND. Wife agrees that
she shall continue to maintain Husband on the medical and
hospitalization insurance coverage provided as a benefit of her
employment until the date a divorce decree is entered with
re.pect to the parties. wite further agrees to cooperate
thereafter in assisting Husband to obtain COBRA coverage if he so
desires, but such coverage shall be at Husband's sole expense.
8. CUSTODY.
(a) Laaa1 and Phvsica1 CustodY. The parties
agree that at this time, it is in the best interests of their
children that Wife be their primary legal ~nd physical custodian,
subject to Husband's rights of partial physical custody as set
forth herein. Wife agrees that major decisions concerning the
parties' children, including but not necessarily limited to their
health, welfare, education, religious training and upbringing
shall be made after discussion and consultation with Husband,
with a view toward obtaining and following a harmonious policy in
the children's best interests. Each party shall keep the other
lS
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informed of the progress of the children's educational and social
adjustments when in his o~ her care. Each party agrees not to
impair the other party's custodial rights as regards the
chi1drsn. The parties shall give support to one another in their
role as parents, and take into account the views of the other
regarding the physical and emotional well-being of their
children. Each party agrees not to attempt to alienate the
affections of the children from the other party nor to pel~it any
third party to so alienate the affections of the children from
the other party. The parties agree that they will encourage the
children to contact the other party by telephone. Day-to-day
decisions will be the responsibility of the parent then having
physical custody.
(b) Emeraencies. with regard to any emergency
decisions which must be made, the parent having physical custody
of the child or children at the time of the emergency shall be
permitted to make any immediate decisions necessitated thereby.
However, that parent shall inform the other parent of the
emergency and consult with him or her as soon as possible.
(c) Access to Records. Each parent shall be
entitled to complete and full information from any doctor,
dentist, teacher or authority and to have copies of any reports
given to either party as a parent.
(d) Livina Arranaements. Wife and Husband do not
want to establish a fixed schedule regarding the physical custody
of the children at this time. Instead, the parties believe that
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it ia in the ohi1dren's best interests to maintain the flexible
50hedule that they now have. It is understood by the parties
that the exact period of physical custody must necessarily be the
aubjeot of periodic negotiation between them. They thsrefore
agree to consult as necessary and to cooperate with one anothsr
in scheduling the children's custodial periods with their father
and to take into account the respective schedules and obligations
of eaoh other and of the children. In light of the age of the
children, the parties further agree to take into account the
wishes and desires of the children in scheduling custodial
arrangements. Husband shall give Wife written notice of hie
intention to have custody of the children at least twenty-one
(21) days in advance. Wife agrees that she will pay directly to
the travel agent, an amount no greater than the cost of one (1)
round-trip diecount, advance purchase coach airline ticket
between her home and Husband's home for each child two (2) times
eaoh year to facilitate custodial periods with Husband.
9. CHILD SUPPORT.
(a) Basic Child SUDDort.
(1) Periodic PaYments. child support shall
be pursuant to the Order entered at '95-85564-DU in the circuit
Court for the county of Ingham, state of Michigan, on May 2,
1995, and any subsequent order.
(b) Health Insurance for Children. Both parties
shall maintain health insurance for the children pursuant to the
Michigan Order.
17
,
(0) Unreimbureed Excenses. The parties agree
that they will share equally any unreimbursed medical expenses
tor the children including, but not limited to, medica1,
hospital, prescription drug, psychiatric, psychological, dental,
orthodontic and vision expenses. In a non-emergency situation,
the decision to incur extraordinary medical expenses shall be by
mutual consent at the parties, such consent not to be
unreasonably withheld. commencing on the execution date at this
Agreement, each party agrees that he or she shall remit to the
other, within seven (7) days of receipt, any reimbursement
received by him or her for claims made by, charges incurred by or
the out-at-pocket costs at the other party and the children which
are due and owning to the other.
(d) Underaraduate Education. It is the intention
at the parties that their children attend an undergraduate
collaqe or university or other post-secondary educational
institution it academically able and willing to do so. The
parties agree that they will share equally the educational
expenses of their children. "Educational expenses" for purposes
at this subparagraph shall be defined as application fees,
tuition, room and board, books and fees, less a sum equal to
twenty percent (20') of the gross educational expenses per child
per year (representing each child's actual or imputed earnings
from employment or work-stUdy) and less any scholarships,
tellowships or grants received by the child but not loans, at
such undergraduate institutions as are reasonable and appropriate
for the children and which have been selected after consultation
between the parties as to the appropriateness of the contemplated
18
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institution. Notwithstanding the foregoing, however, in no event
shall Husband be required to pay, for each ohild in anyone (1)
aoad_io year, aore than a SUIII equal to fifty percent (Sot) of
the oost of tuition, room and board for that academic year at the
pennsylvania state University, main campus, for a full-time in-
state student, nor shall Husband be required to pay for any aore
than four (4) aoademia ye~rs of undergraduate education per
child; nor shall he have any obligation for any eduoational
expens.. not incurred within five (5) years of each child's
graduation from high school. Except as otherwise set forth
herein, Husband's obligation pursuant to this subparagraph shall
be paid direotly to the educational institution. In the event of
Husband's disability or unemployment which results in a
substantial reduction of income at a tillle during whioh be bas
Obligations pursuant to this subparagraph, Husband's total
obligation vill reaain uncbanged but he shall be entitled to pay
off the obligation, as be and Wife shall agree, at a reduced rate
over time by paying, directly to Wife, reimbursement for any
payments sbe made toward Husband's obligation during his period
of disability.
10. WAIVER OF INHERITANCE RIGHTS. Effeotive upon the
execution date of this Agreement, Husband and Wife each waives
all rights of inheritance in the estate of the other, any right
to elect to take against the will or any trust of the other or in
which the other has an interest, and each of the parties waives
..'
19
,
any additional rights which said party has or may have by reason
of their marriage, except the rights saved or created by the
terms of thie Agreement. This waiver shall be construed
gensrally and shall include, but not be limited to, a waiver of
all rights provided under the laws of Pennsylvania, or any other
jurisdiotion. Notwithstanding the foregoing, however, in the
event that either party hereto executes a will or codicil after
the exeoution date of this Agreement and provides for the othsr
spou.e in said will or codicil a benefit olher than as provided
by the terms of this Agreement, then this waiver provision shall
not bar the surviving spouse from taking under such will or
codicil.
,
11. WAIVER OF BENEFICIARY DESIGNATION. Unless
otherwise specifically set forth in this Agreement, each party
bereto _pecifically waives any and all beneficiary rights in Gnd
to any asset, benefit or like program carrying a beneficiary
designation which belongs to the other party under the terms of
this Agreement, including, but not limited to, pensions and
retirement plans of any sort or nature, deferred compensation
plans, life insurance pOlicies, annuities, stock accounts, bank
acoounts, final paychecks or any other post-death distribution
scheme, and each party expressly states that it is his and her
intention to revoke by the terms of this Agreement any
beneficiary designations naming the other which are in effect as
of the date of execution of this Agreement. If and in the event
the other party continues to be named as a beneficiary and no
20
.
alternate beneficiary is otherwise designated, the beneficiary
.hall be deemsd to be the estate of the deceased party.
Notwithstanding the foregoing, however, in the event that either
party hereto specifically designates the other party as a
beneficiary of any asset after the date of execution of this
Agreement, then this waiver provision shall not bar that party
from qualifying as such beneficiary.
12. RELEASE OF CLAIMS.
(al Husband and Wife acknowledge and agree that
the property dispositions provided for herein constitute an
equitable distribution of their assets and liabilities pursuant
to 13502 of the Divorce Code and Husband and Wife hereby waive
any right to division of their property except as provided for in
this Agreement. Furthermore, except as otherwise provided for in
this Aqreement, each of the parties hereby specificallY waive.,
releases, renounces and forever abandons any claim, right, title
or interest whateoever he or she may have in property transferred
to the other party pursuant to this Agreement or identified in
this Agreement as belonging to the other party, and each party
agree. never to assert any claim to said property or proceeds in
the future. However, neither party is released or discharged
from any obligation under this Agreement or any instrument or
document executed pursuant to this Agreement. Husband and Wife
shall hereafter own and enjoy independently of any claim or right
of the other, all items of personal property, tangible or
intangible, acquired by him or her from the date of execution of
'-1
this Agreement with full power in him or her to dispose of the
same fully and effectively for a~l purposes.
(b) Each party hereby absolutely and
unconditionally releasee and forever discharges the other and the
e.tate of the other for all purposes from any and all rights and
obliqations which either party may have or at any time hereafter
has for past, present or future support or maintenance, alimony
pendsnte lite, alimony, equitable distribution, counsel fees,
costs, expenses and any other right or obligation, economic or
otherwise, whether arising out of the marital relationship or
otherwise, including all rights and benefits under the
Pennsylvania Divorce Code of 1980, its supplements and
amendments, as well as any other law of any other jurisdiction,
except and only except all rights and obligations arising under
this Agreement or for the breach of any of its provisions.
(c) Each party hereby absolutely and
unconditionally releases and forever discharges the other and his
or her heirs, executors, administrators, assigns, property and
estate from any and all rights, claim, demands or obligations
arising out of or by virtue of the marital relationship of the
parties whether now existing or hereafter arising. The above
release shall be effective regardless of whether such claims
arise out of any former or future acts, contracts, engagements or
liabilities of the other or by way of dower, curtesy, widow's or
widower's rights, family exemption or similar allowance, or under
the intestate laws or the right to take against the spouse's
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22
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will, or the right to treat a lifetime conveyance by the othsr as
t.stamentary or all other rights of a surviving spouse to
participate in a deceased spousels estate, whether arising under
the laws of Pennsylvania, any state, commonwealth or territory of
the United states, or any other country.
(d) EKcept for the obligations of the parties
, contained in this Agreement and such rights as are eKprees1y
reserved therein, each party gives to the other by the eKecution
of this Agreement an absolute and unconditional release and
discharge from all causes of action, claims, rights or demand
whatsoever in law or in equity, which either party ever had or
now has against the other.
13. PRESERVATION OF RECORDS. Each party will keep and
pres.rvs for a period of four (4) years from the date their
divorce decree is entered all financial records relating to the
marital estate, and each party will allow the other party access
to those records in the event of tax audit.
14. MODIFICATION. No modification, rescission, or
amendment to this Agreement shall be effective unless in writing
signed by each of the parties hereto.
15. SEVERABILITY. If any provision of this Agreement
is held by a court of competent juriSdiction to be void, invalid
or unenforceable, the remaining provisions hereof shall
nevertheless survive and continue in full force and effect
without being impaired or invalidated in any way.
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23
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16. BREACH. If either party hereto ie in breach of
any provision hereof, the other party shall have the right, at
his or her election, to sue for damages for such breach, or 8eek
8uch other remedies or relief as may be available to him or her.
The non-breaching party shall be entitled to recover from the
breaching party all costs, expenses and legal feee actually
incurred in the enforcement of the rights of the non-breaching
party.
17. WAIVER OF BREACH. The waiver by one party of any
breach of thie Agreement by the other party will not be deemed a
waiver of any other breach of this Agraement.
18. NOTICE. Any notice to be given under thie
Agreement by either party to the other shall be in writing and
may be effected by registered or certified mail, return receipt
requested. Notice to Wife will be sufficient if made or
addressed to the following:
Alice P.L. Schwartz
110 Parkview Road
New Cumberland, PA 17070
and to Husband, if made or addressed to the following:
Berl N. Schwartz
523 Bainbridge, Apartment 48
East Lansing, HI 48823
Each party may change the address for notice to him or her by
giving notice of that change in accordance with the provisions of
this paragraph.
24
19. APPLICABLE LAW. All acts contemplated by this
Agreement shall be construed and enforced under the laws of the
commonwealth of Pennsylvania in effect as of the date of
execution of this Agreement.
20. AGREEMENT BINDING ON PARTIES AND H~. This
Agreement, except as otherwise expressly provided herein, shall
bind the parties hereto and their respective heirs, executors,
administrators, legal representatives, assigns, and successors in
any interest of the parties.
21. ENTIRE AGREEMENT. Each party acknowledges that he
or she has carefully read this Agreement, including all Exhibits
and other documents to which it refers; that he or she has had
the opportunity to discuss its provisions with an attorney of his
or her own choice, and has executed it voluntarily; and that this
instrument expresses the entire agreement between the parties
concerning the subjects it purports to cover. This Agreement
should be interpreted fairly and simply, and not strictly fcr or
against either of the parties.
22. INCORPORATION OF EXHIBITS. All Exhibits and other
instruments referred to in this Agreement are incorporated into
this Agreement as completely as if they were copied verbatim in
the body of it.
23. MUTUAL COOPERATION. Each party shall on demand
execute and deliver to the other any deeds, bills of sale,
assignments, consents to change of beneficiaries of insurance
pOlicies or other benefits or assets, tax returns, and other
25
documents, and .hall do or cause to be done every other act or
thing that may be necessary or desirable to effectuate the
provisions and purposes of this Agreement. If either party
unreas~nab1y fails on demand to comply with these provisions,
that party shall pay to the other party all attorney's fees,
costs, and other expenees reasonably incurred as a result of such
failure.
24. DATE OF EXECUTION. The "date of execution" or
"execution date" of this Agreement shall be defined as the date
upon which it is executed by the parties if they each have
executed the Aqreement on the same date. Otherwise, the "date of
exscution" or "execution date" of this Aqreement shall be defined
a. the date of execution by the party last executing this
Aqreement.
25. EFFECTrVE DATE. This Aqreement shall be effective
and binding upon both parties on the execution date of this
Aqreement.
26. AGREEMENT NOT TO BE MERGED. This Agreement shall
survive any divorce decree entered with respect to the parties
and shall be incorporated into any final decree of divorce of the
parties for purposes of enforcement only, but otherwise shall not
be merqed into said decree. The parties shall have the riqht to
enforce this Agreement under the Divorce Code of 1980, as
amended, and in addition, shall retain any remedies in law or in
equity under this Agreement as an independent contract. such
26
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:
remedies in law or equity epecifically are not waived or
released.
27. EFFECT OF RECONCILIATION OR RECONCILIATION
ATTEMPT. This Agreement shall remain in full force and effect
and shall not be abrogated even if the parties effect a
reconciliation, cohabit as husband and wife or attempt to effect
a reconciliation. This Agreement shall continue in full fares
and effect and there ehall be no modification or waiver of any of
the term. hereof unless the parties in writing execute a
statement declaring this Agreement or any term of this Agreement
to be null and void.
28. HEADINGS NOT PART OF AGREEMENT. Any headings
preceding the text of the several paragraphs and subparagraphs
hereof ars inserted solely for convenience of reference and eha1l
not constitute a part of this Agreement nor shall they affect its
meaning, construction or effect.
29. COUNTERPARTS. This Agreement may be executed in
,counterparts, each of Which will be an original and which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals on the dates of their acknowledgements.
A~~!~
ALICE P.L. SCHWARTZ, WIFE
27
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,
\,.,
STATZ or .J&tGH~-GIdf -,:? 1--
COUNTY or
)
)
)
.
BBrORB~~ .the undersigned~uthority, on this day personallY
I (A:. -po L. ~l.Vt1(.,,-
appeared IlK. wwnw~ known to me to be the person who
.xecut.d the foregoing instrument, and who acknowledged to m.
that he .xecuted same for the purposes and considerations th.rsin
.xpr....d.
GIVE~ER MY
C ~
HAND AND SEAL OF OFFICE this ~ day of
, 1995.
Typed
My
DURA M IHIIIP,III\IIy....
lllrrttCUII,llIuplllli=.'A
, MW ClIII",INlOnEQllel .-
2.
, II .
. ., I
IJDlIBIT "AIl
PIRBOHAL PROPIRTY AND WURNIBHIHGB '1'0 HUBBAHD
Onyx and Brass Floor Lamp and Shade in living room
Similar Floor Lamp in Abby's room
Blue Chair with Flower print and Wood Legs in living room
Dark Wood Rocker in living room
Console piano in living room (Husband specifically agrees that if
and in the evant that he decides to sell the piano rather than
remove it from Wife's residence then Wife shall have the right of
first refusal to purchase the piano before its sale to any third
perty)
Paper Weight from mother's trip to Europe in dining room
China cups and Saucers collected by mother, some of which are in
the dining room
singer Sewing Machine in family room
Floor Model Radio in family room
Hackney Print and Frame in laundry room
Enameled kitchen table and eix metal framed chairs
S.all T.V. with red sides in basement
Mahogany bedroom set (twin beds, tall chest, two night stands)
Lace
silver
Noritake china set
Bowl from sister Elaine
Brass candlesticks
Tall and short liquor glasses
Tea glasses and brass holders
Bedroom set in daughter Rebecca's room (WhiCh Rebecca may use but
will revert to Husband)
3D
0' ..
,. .
IlXHIBIT "All
PAGE TWO
.
Convection oven (Husband's mother's)
S.L. Jone. painting
chicaqo painting
Gossip bench
Marenbsrq oval framed photos
Guabal1 lIachine
Two crystal lamps
Books and records Husband acquired prior to marriaqe
servinq cart and tray in living room
Larqe red oriental rug in living room
S.all oriental rug in dining room
Calpha10n cookware
Gray 1920's wool rug in queat room
White laap in quest room
Two complete .ets of linen and mattress pads for twin beds
Two bed pillOWS
Bedsprinqs and mattresses on guest room beds
White wicker rocker and pillows
Amish rocker in family room
Robert Roth's desk in family room
Desk chair in family room
All cd's, vinyl records and video and cassette tapes acquired by
Hueband before separation
31
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--1111.2000 PHoNEjiU,:,gHAAoU]~IUC-
BILLING DATE AMOUNT PAID CHECK NUMBER
7/10/99 $ 45,04 Members 1" '991
0/10/99 S 92,60 Members 1" '1023
9/10/99 S 9,93 Members 1'1'1073
10/10/99 S 05,09 Members 1'1'1110
11/10/99 $ 70,31 Members 1" '1165
12/10/99 $ 83,52 Members 1" '1226
1/10/00 $ 47.80 Members 1" '1251
5/10/00 $ 10,42 Members 1" '1385
8/01/00 $ 9.08 Members 1'1'1439
7/10/00 $ 9.7CJ Members 111'1491
8/10/00 $ 24,16 Members 1"'1640
TOTAL: "15.13
ALICE P,L, SCHWARTZ,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94.2253 CIVIL TERM
CIVIL ACTION - LAW
Plaintiff/Petitioner
v.
BERL N, SCHWARTZ,
DefendanVRespondent
AND NOW. this 8' day of _7J,,,. I.'" , 2000, upon request of Plaintiff's counnl,
the evidentiary hearing on disputed Issues and material facts scheduled for December 29, 2000 at 10:00
a,m. Is continued and shall be held on January 3, 2001 In Courtroom No, 4 of the Cumberland County
Courthouse at 2:30 o'clock p.m, All olher provisions In the Rule to Show Cause entered on December 1,
2000 remain In effect.
Notice of entry of this Order shall be provided to the Respondent by counsel for the Pelllloner,
J.
:140675,S
(bp'u I"h id.'i,d... 1~lIlao - '::2n1
My O:auitL w,~
B~ AJ, Sd...C.J:M::J~
~7 ZOO3
ALICE P.L. SCHWARTZ,
Plalnllff/Petllloner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
NO. 94-2253 CIVIL TERM
CIVIL ACTION - LAW
v.
BERL N, SCHWARTZ,
DefendanVRespondenl
AND NOW, this /lit~ day of J)~ft.~-~
Petlllon, It Is hereby ORDERED thaI:
, 2003, upon conslderetlon of the foregoing
1, A rule Is Issued upon the Respondent to show cause why the Petllloner Is not
enlltled to the relief requested;
2, The Respondent shall file an Answer to the allached Pellllon within Z-o
days of service upon him;
3, An evidentiary hearing on disputed Issues and material facts shall be held on
--ON AI D 5 , 2003 In Courtroom No. <I of the Cumberland County
Co'ifrthouse at j I : 00 o'clock ..fr.....M.; and
4. Nollce of entry of this Order shall be prOVided to the Respondent by counsel
for Pelllloner,
BY THE COURT:
trrpl~~
1"\ RK3
04-10-03
-/I
J.
6, On July 10, 1996, the Petitioner and Respondent signed a Marital Settlement Agreement
("Agreement"). A true and correct copy of the Agreement Is allached hereto as "Exhibit A" and Incorporated
herein,
6, On July 26, 1995, this Court entered a Decree In Divorce and Order Incorporating the tenns,
provisions and conditions of the Agreement Into the Decree In Divorce, A lrue and correct copy of the
Decree In Divorce Is allached hereto, Incorporated herein and marked as "Exhibit B",
7, In accordance with said Decree and Order, the Agreement dated July 10, 1996 executed by
the parties was Incorporated In the Divorce Decree and jurisdiction over the Decree and Order for the
purpose of Insuring compliance with and enforcement of the Agreement was retained by this court as set
forth In Paragraph 19 of the Agreement, Exhibit "AM.
6, Pursuant to Paragraph 9(d) the Agreement, the Petitioner and Respondent agreed to share
equally In the post-secondary educational expenses of their children minus twenty percent(20%) to be paid
by each child,
9, On November 22, 2000, Petitioner flied a Petition similar to this Petition to enforce the Marital
SeUlemenl Agreement to recover college expenses for the 1999-2000 school year for bolh children, Said
Petlllon was sellled by agraement of the parties,
10. Both daughters have allended college for the 2000-2001,2001-2002 and 2002-2003 school
years, Rebecca at Penn State University and Abagall at West Virginia University,
11. Pursuant to Paragraph 9(d) of the Agreement, the cosl for tuition, room and board, books and
fees for Rebecca for the 2000-2001 school year at the Penn State University amounted to $12,672,00,
12, Pursuant to Paragraph 9(d) of the Agreement,lhe cost for tuition, room and board, books and
fees for Rebecca for the 2001-2002 school year at the Penn State University amounted to $13,832.00.
13. Pursuant to Paragraph 9(d) of the Agreement, Ihe cost for tulllon, room and board, books and
fees for Rebecca for the 2002-2003 school year at the Penn Slale University amounted to $14,480.00,
14. Rebecca allended classes at Penn Slate University In the summer of 2000 at a cost for
tuition, room and board, fees and books of $2,014.00,
15, To date, Respondent has, to the best of Pelllloner's knowledge and Infonnallon, not paid
anything toward the cost of Rebecca allendlng Penn State University.
16. The amount for tulllon. room and board. books and fees for Abagall to allend West Virginia
Unlverslly, for each school year was as follows:
2000-2001
2001-2002
2002-2003
$13,742.00
$14,916,00
$16,010.00
17. The Respondent, to the bestlnformallon and belief of Pelllloner, has obtained Federal Loans
to be applied toward the expenses Incurred by Abagall to allend West Virginia University for the previous
three (3) school years,the amounl believed to have been applied Is $3,789.00.
18. The tolal amount of the recoverable educallonal expenses for Rebecca as set forth In thl,
Petlllon for the three (3) school years and the summer of 2000 amounts to $43,698,00,
19. Under the terms of the Agreement, Respondent Is responsible for 40% of the educallonal
costs for Rebecca to allend Penn Slate, or $17,479.20,
20. The total amount of the recoverable educallonal expenses for Rebecca as set forth In this
Pellllon for three (3) school years amounls to $44,668,00.
21. Under the terms of the Agreement, Respondent Is responsible for 40% of the educallonsl
costs for Abagallto allend West Virginia University. or $17,867.20, less a credll of $3,789,00 for which he Is
believed to have paid,
22. As a result of the Respondent's failure 10 conlrlbute his portion of college educational
expenses, the Respondent Is In breach of the Marital Belllemenl Agreement.
fl,
.
,
TABLE OF CONTENTS
H..dina iASiI
1. ADVICE OF COUNSEL 2
2. DISCLOSURE OF ASSETS 3
3. PERSONAL RIGHTS 4
4. MUTUAL CONSENT DIVORCE 5
5. EQUITABLE DISTRIBUTION 6
(a) Real Property 6
(b) Contents of the Parties' Respective
Residences and Personal Property 6
(c) Motor Vehicles 8
(d) Pension/Retirement Funds 9
(e) Cash Accounts and other Funds 9
(f) J.e. Bradford Joint Accounts 10
(9) Life Insurance 10
(h) Lump Sum to Husband 10
(i) Miscellaneous Property 11
(j) Property to Wife 11
(k) Property to Husband 11
(1) Assumption of Liabilities 12
(m) Liability Not Listed 12
(n) Indemnification of Wife 13
(0) Indemnification of Huaband 13
(p) Warranty as to Future Obligations 14
6. WAIVER OF ALIMONY 14
i
.
.
.
TABLE OF CONTENTS
Haadina
WI
115
15
115
16
16
16
17
17
17
17
18
18
19
20
21
23
23
23
24
24
24
25
215
7. HEALTH INSURANCE FOR HUSBAND
B . CUSTODY
(a) Legal and physical custody
(b) Emergencies
(c) Access to Records
(d) Living Arrangements
9 . CHILD SUPPORT
(a) Basic Child support
(1) periodic Payments
(b) Health Insurance for Children
(c) Unreimbursed Expenses
(d) Undergraduate Education
10. WAIVER OF INHERITANCE RIGHTS
11. WAIVER OF BENEFICIARY DESIGNATION
12. RELEASE OF CLAIMS
13. PRESERVATION OF RECORDS
14. MODIFICATION
15. SEVERABILITY
16. BREACH
17. WAIVER OF BREACH
18. NOTICE
19. APPLICABLE LAW
20. AGREEMENT BINDING ON PARTIES AND HEIRS
ii
4
TABLE OF CONTENTS
H..dina WI
n. ENTIRE AGREEMENT 211
22. INCORPORATION OF EXHIBITS 25
,
23. MUTUAL COOPERATION 21l
24. DATE OF EXECUTION 26
25. EFFECTIVE DATE 26
26. AGREEMENT NOT TO BE MERGED 26
27. EFFECT OF RECONCILIATION OR
RECONCILIATION ATTEMPT 27
2S. HEADINGS NOT PART OF AGREEMENT 27
29. COUNTERPARTS 27
Exhibit "A" 30
i11
I
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,
MARITAL SETTLEMENT AGREEMENT
THIS AGREEMENT made this Id7A. day
1995, by and between ALICE P.L. SCHWARTZ
of r-ft!./~~
(
of Cumberland
,
County,
Pennsylvania, (hereinafter referred to as "Wife"), and BERL N.
SCHWARTZ of East Lansing, Michigan, (hereinafter referred to as
"Husband"),
WITNESSETH:
WHEREAS, Alice P.L. Schwartz, social security number 172-42-
7980, wae born on September 12, 1949, and resides at 110 parkview
Road, New Cumberland, Cumberland County, Pennsylvania, 17070.
WHEREAS, Berl N. schwartz, social security number 289-40-
7991, was born on January 24, 1947, and resides at 523
Bainbridge, Apartment 48, East Lansing, Michigan, 48823.
WHEREAS, the parties hereto are husband and wife, having
be.n lawfully married on June 12, 1971, in Philadelphia,
Pennsylvania, and are the parents of the following minor
children I
HAmIl
Abagail Tobiah Schwartz
F
Date of Birth
April 3, 1981
April 3, 1981
~
F
Rebecca Neumann Schwartz
WHEREAS, the parties have lived separate and apart for more
than two years; and
WHEREAS, 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 .ett1ing of all matters between them relating to the
ownership of real and personal property, the support and
maintenance of one another and of their children, and 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 these premises, and of
the mutual promises, covenants, and undertakings hereinafter set
forth, and for other good and valuable consideration, receipt and
sUfficiency of which is 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. Wife is represented by
Patricia A. Hiles, Esquire. Until June 9, 1995, Husband was
represented by N. Christopher Menges, Esquire. Each party
acknowledges that he or she has had the opportunity to receive
independent legal counsel of his or her selection, and that each
fully understands the facts and 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, 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 improper or
illegal agreement or agreements. In addition, each party hereby
acknowledges that he or she is aware of the impact of the
Pennsylvania Divorce code, 23 Pa.C.B.A. S3101, et. egg., whereby
the court has the right and duty to determine all marital rights
2
.
.
~
of the parties including divorce, alimony, alimony pendente l1tA,
equitable distribution of all marital property or property owned
or possesse~ individually by the other, counsel fees and costs of
litigation and, fully knowing the same, and being fully advised
of his or her rights thereunder, each party hereto still desires
to execute this Agreement acknowledging that the terms and
conditions set forth herein are fair, just and equitable to each
of the parties and waives his and her respective right to have
the Court of Common Pleas of Cumberland county, or any other
court of competent juriSdiction, make any determination or order
affecting the respective parties' rights to alimony, alimony
pendente !itA, equitable distribution of all marital property,
counsel fees and costs of litigation, or any other right arising
from the parties' marriage.
2. DISCLOSURE OF ASSETS. Each of the parties hereto
acknowledges that he or she is aware of his or her right to
engage in discovery, including but not limited to, written
interrogatories, motions for production of documents, the taking
of oral depositions, the filing of inventories, and all other
means of discovery permitted under the Pennsylvania Divorce Code
or the Pennsylvania Rules of civil Procedure and each of the
parties specifically waives his or her right to engage in Huch
discovery. Each of the parties further acknowledges that he or
she is aware of, and specifically waives, his or her right to
have the real and/or personal property, estate and assets,
earnings and income of the other assessed or evaluated by the
3
.
court. of this commonwealth or any other court of competent
jurisdiction. The respective parties do hereby acknowledge,
recognize and accept that there has been full and fair dieclosure
to the other of his or her assets and liabilities, and each party
agrees that any right to further disclosure, valuation,
enumeration or statement thereof in this Agreement is hereby
specifically waived, and the parties do not wish to make or
append hereto any further enumeration or statement. The parties
hereby acknowledge and agree that the division of the marital
assets as set forth in this Agreement is considered fair,
reasonable and equitable, and is satisfactory to them. Each of
the parties hereto further covenants and agrees for himself and
herself and his or her heirs, executors, administrators or
assigns, that he or she will never at any time hereafter sue the
other party or his or her heirs, executors, administrators or
assigns in any action of contention, direct or indirect, and
allege therein that there was a denial of any rights to full
disclosure, or that there was any fraud, duress, undue influence,
or that there was a failure to have available full, proper and
independent representation by legal counsel.
3. PERSONAL RIGHTS. Husband and wife may, at all
times hereafter, live separate and apart. Each shall be free
from all control, restraint, interference and 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
4
,
1
benetit, conduct, carryon or 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 cause
which led to, or resulted in, the continuation of their living
apart. Husband and Wife shall not molest, harass or disturb 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. Neither party will
interfere with the use, ownership, enjoyment or disposition of
any property now owned by or hereafter acquired by the other.
4. MUTUAL CONSENT DIVORCE. The parties acknowledge
that Wife initiated a divorce action in the Cumberland county
Court of Common Pleas at No. 94-2253 asserting irretrievable
breakdown of marriage and that ninety (90) days have expired from
the date the complaint was filed. Therefore, the parties agree
that contemporaneously with the execution of this Agreement, each
shall sign and have duly acknowledged an affidavit of consent to
a divorce pursuant to S3301(c) of the Divorce Code. Said
affidavits shall be promptly transmitted to counsel for Wife who
will immediately file a praecipe to transmit record and vital
statistics form to precipitate the prompt entry of a decree of
divorce.
5. EOUITABLE DISTRIBUTION.
(a) Real ProDertv. Wife and Husband acknowledge
that Wife holds title to the premises identified as 110 parkview
5
~
,
Road, New cumberland, cumberland County, Pennsylvania 17070
(hereinafter "Wife's residence"). The parties agree as follows
with ~espect to Wife's residence:
(1) Husband hereby waives, relinquishes and
releases for all time any and all past, present or future right,
title, claim or interest in and to Wife's residence.
(2) Husband agrees that any and all
homeowners' policies, title policies and any other policy of
insurance with respect to Wife's residence shall reflect Wife as
sole owner thereof and further agrees that Wife shall be entitled
to receive any payments now or hereafter due under such insurance
.,'
policies.
(3) Wife shall be solely responsible for all
costs, expenses and liabilities associated with or attributable
to Wife's residence, including but not limited to any mortgage
obligations, real estate taxes, insurance premiums, utilities,
maintenance and repairs and Wife shall keep Husband and his
successors, assigns, heirs, executors and administrators
indemnified and held harmless from any liability, cost or expense
which may be incurred in connection with such liabilities and
expenses.
(b) Contents of the Parties' Resnective
Residences and Personal Pronertv.
(1) Except as otherwise provided herein, as
of the date of execution of this Agreement, Husband shall set
over, transfer and assign to Wife all of his right, title, claim
and interest in and to all of the contents of Wife's residence
6
.
\
and any personal property now in the possession or control of
Wire including, but not limited to, all furniture, furnishings,
rugs, carpets, silver, china, household appliances and equipment,
clothes, jewelry, personalty and other items of tangible property
of whatsver nature currently located in Wifels residence or
elsewhere. Notwithstanding the foregoing, the parties agree that
they will divide equally between themselves bric-a-brac, posters,
paintings and art work not specifically addressed in Exhibit "A"
hereto. If they are unable to agree, said items shall be
distributed between them by lottery with each party selecting one
it.. in turn with the other and Husband having the first turn.
In addition, Husband may remove, at his sole discretion and at
hi. .ole expense, and may retain as his sole and separate
property, all those items set forth on Exhibit "A" attached
hereto and incorporated herein by reference, as well as the other
property belonging to him by the terms of this subparagraph, if
and only if said items are removed from Wifels residence within
ninety (~aYj from the dllte a divorce decree iG entered with
~ ,g...~~r~ tnr-f,k c....!.)(\.~~ f1o,iIO-. ~
respect to . e"ilarties)^ In the event of a medical emergen~y, as
attested to by a physician, Husband shall be given such
additional time as is reasonable and necessary to remove the
property belonging to him by the terms of this subparagraph. If
Husband fails to remove said items within the requisite time
frame, then all such items not removed shall be deemed to be the
sole and separate property of Wife and she may retain or dispose
&---- 1l1(;..,(f.l'~
uJ> , 7, ~., ",,/oJ}
? -r-.. <:"':'l\.!..r<a... A' Ie. "0 !; lw.JU. M,.'I^-., , '" tk. f'\.df~ ~ HIM. - (
1v..::t'if i~ ~\!A ':\.~"'.a..c..J ~ ~;.. A" s\~ (\~'VJ"I,r,J ,... ,-\), uJ;f,lt-ro-...
i'\A-1..t..44.. .r(1(..... c:.lL,I..f,...~J.J"M.~jl \ S\\-<:J... -t'''''..... o-r,_HL\-.1I"i",p (\)~ f~"'d...
.7', Wtl=cr"1 .(I1~ fP:.....,.., ,'t;:ltf. ;<:.~ PI~"\A,~,lvl\t(....;- 7'1J ct..-.... ,II A.v-. II~ ' vdlt;::;:;
!j': ,., , ,0- ~,.I."~,,,. ,1- ,,,(l,,';7 (,14. ~4'",b;''' "A,"lAllre'i.../i,A"tt"Mt7t,<\}{L."
.
I
.
of euch items as she alone seeo fit, free and clear any right,
title or interest in and to such items by Husband.
(2) As of the date of execution of this
Agreement, Wife hereby sets over, transfers and assigns to
Husband all of her right, title, claim and interest in and to all
of the contents of Husband's current residence and any personalty
in Husband's possession and control including, but not limited
to, all furniture, furnishings, rugs, carpets, silver, china,
household appliances and equipment, clothes, jewelry, personalty
and other items of tangible property of whatever nature located
in Husband's residence or elsewhere.
(c) Motor Vehicles.
(1) Husband agrees that Wife shall retain
possession of and receive as her sole and separate property the
19S7 Toyota Celica automobile, along with all rights under any
insurance policy thereon and with all responsibility for payment
of any outstanding indebtedness pertaining thereto and insurance
thereon, free of any right, title, claim or interest of Husband.
(2) Wife agrees that Husband shall retain
possession of and receive as his sole and separate property the
19S7 Toyota Camry L.E. automobile along with all rights under any
insurance policy thereon and with all responsibility for payment
of any outetanding indebtedness pertaining thereto and insurance
thereon, free of any right, title, claim or interest of Wife.
(3) Wife and Husband agreed to execute,
acknowledge and deliver within thirty (30) days upon request of
8
.
the other, any and all instruments or documents necessary to
effectuate the terms of this subparagraph.
(4) Wife and Husband agree that each will
indemnify and hold the other and his or her property harmless
from any liability, cost or expense, including attorneys fees,
incurred in connection with the automobiles awarded to each party
by the terms of this subparagraph.
(d) Pension/Retirement Funds. Wife and Husband
each hereby specifically releases and waives any and all
interest, claim or right that she or he may have in and to any
and all retirement benefits (including but not limited to pension
or profit sharing benefits, deferred compensation plans, 401(k)
plans, individual retirement accounts or other similar benefits)
of the other party, specifically to include a waiver of any
beneficiary designation thereunder. The parties agree that they
shall execute any documents pursuant to the Retirement Equity Act
or any similar act that may be required from time to time to
accomplish the purpose of this subparagraph.
(e) Cash Accounts and other Funds. Wife agrees
that Husband shall retain as his sole and separate property, free
from any claim or right of Wife, any and all stocks, bonds and
sums of cash in savings or checking accounts, mutual funds, stock
accounts, or any other assets of a similar nature which now are
titled in Husband's name alone. Husband agrees that Wife shall
retain as her sole and separate property, free from any claim or
right of Husband, any and all stocks, bonds and sums held in
9
.
.
.
checking or savings accounts, mutual funds, stock accounts/ or
any other assets of a similar nature which now are titled in
Wife's name alone.
(f) J.e. Bradford Joint Accounts. The parties
acknowledge that they are the joint owners of money market and
stock fund accounts, No. 105-7970-1-4-205, at J.e, Bradford. The
parties agree that the joint accounts shall be divided equally
between them and that each party may use, enjoy or dispose of his
or her share as each sees fit. The parties agree that each will
execute any documents necessary to effectuate the terms of this
subparagraph within fourteen (14) days of his or her receipt of
said documents.
(g) Life Insurance. Wife and Husband hereby
specifically release and waive any and all interest, claim, or
right that he or she may have in and to any and all policies of
life insurance insuring the life of the other, along with all
incidents of ownership pertaining to same, including cash value,
if any.
(h) LumD Sum to Husband. As part of the
equitable distribution of the parties' marital property, Wife
agrees that she shall pay to Husband a lump sum of One Thousand
Three Hundred Nineteen Dollars ($1,319) within sixty (60) days of
the date a divorce decree is entered with respect to the parties.
The parties agree that the lump sum from Wife to Husband is in
the nature of a property distribution and is not alimony.
10
.
.
Thererore, this sum shall not be deductible by Wife nor
includeable in Husband's income ror tax purposes.
(i) Miscellaneous Procertv. All property not
spscirically addressed herein shall be hereafter owned by the
party to whom the property is titled, and if untitled, the party
in possession. This Agreement shall constitute a sufficient bill
of sale to evidence the transfer of any and all rights in such
property rrom each to the other.
(j) procertv to Wife. The parties agree that
Wire shall own, possess, and enjoy, free from any claim or
Husband, the property awarded to her by the terms of this
Agreement. Husband hereby quitClaims, assigns and conveys to
Wire all such property, together with any insurance policies
covering that property, and any escroW accounts relating to that
property. This Agreement shall constitute a sufficient bill of
sale to evidence the transfer of any and all rights in such
property from Husband to Wife.
(k) procertv to Husband. The parties agree that
Husband shall own, possess, and enjoy, free from any claim or
Wife, the property awarded to him by the terms of this Agreement.
Wire hsreby quitClaims, assigns and conveys to Husband all such
property, together with any insurance policies covering that
property, and any escrow accounts relating to that property.
This Agreement shall constitute a sufficient bill of sale to
evidence the transfer of any and all rights in such property rrom
Wife to Husband.
11
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.
(1) AesumDtion of Liabilities.
(1) Husband agrees that he shall be solely
responsible tor all debt he has incurred in his name alone,
including, but not limited to obligations to issuers of credit
cards in his name end Husband further agrees that he will
indemnify a~d hold Wife and her property harmless trom any
liability, cost or expense, including attorney's fees, associated
with these obligations.
(2) Wife agrees that she shall be solely
responsible tor all debt she has incurred in her name alone,
including but not limited to obligations to issuers of credit
cards in her name, and the loan against her 401(k) plan, as well
as the parties' joint obligation to Wife's mother in the amount
ot Nineteen Thousand Co11are ($19,000), and Wife further agrees
that she will indemnify and hold Husband and his property
harmless from any liability, cost or expense, including
attorney's fees, associated with these obligations.
(3) Unless otherwise provided herein, each
party hereby assumes the debts, encumbrances, taKes and liens on
all the property each will hold subsequent to the date of this
Agreement, and each party agrees to indemnify and hold harmless
the other party and his or her property from any claim or
liability that the other party will suffer or may be required to
pay because of such debts, encumbrances or liens.
(m) Liabilitv Not Listed. Each party represents
and warrants to the other that he or she has not incurred any
12
.
,
debt, obligation or other liability, other than those described
in this Agreement, on which the other party is or may be liable.
A liability not diec10sed in this Agreement will be the sole
responsibility of the party who has incurred or may hereafter
incur it, and each party agrees to pay it as the same shall
become due, and to indemnify and hold the other party and his or
her property harmless from any and all such debts, obligations
and liabilities.
(n) Indemnification of Wife. If any claim,
action or proceeding is hereafter initiated seeking to hold Wife
liable for the debts or obligations assumed by Husband under this
Agreement, Husband shall, at his sole expense, defend Wife
against any such claim, action or proceeding, whether or not
well-founded, and indemnify her and her property against any
damages or loss resulting therefrom, including, but not limited
to, costs of court and attorney's fees incurred by Wife in
connection therewith.
(0) Indemnification of Husband. If any claim,
action or proceeding is hereafter initiated seeking to hold
Husband liable for the debts or obligations assumed by Wife under
this Agreement, Wife shall, at her sole expense, defend Husband
against any such claim, action or proceeding, whether or not
well-founded, and indemnify him and hie property against any
damages or loss resulting therefrom, including, but not limited
to, costs of court and attorney's rees incurred by Husband in
connection therewith.
13
.
(p) Warrantv as to Future Obliaations. Husband
and Wife shall take all steps necessary to assure that no credit
cards or similar accounts or liabilities exist which provide for
joint liability. From the date of execution of thie Agreement,
each party shall use only those credit cards and accounts for
which that party is individually liable and the parties agree to
cooperate in closing any and all accounts on which joint
liability may be incurred. Husband and Wife each represents and
warrants to the other that he or she will not at any time in the
future incur or contract any debt, charge or liability for which
the other, the other's legal representatives, property or estate
may be responsible. Each hereby agrees to indemnify, save and
hold the other and his or her property harmless from any
liability, loss, cost or expense whatsoever, including attorney's
fees, incurred in the event of breach hereof.
6. WAIVER OF ALIMONY. The parties acknowledge that
inflation may increase or decrease, that their respective incomes
and assets may substantially increase or decrease in value, that
either may be employed or unemployed at various times in the
future, and that notwithstanding these or other economic
circumstances, the parties acknowledge that they each have
sufficient property and resources to provide for her or his
reasonable needs and that each is able to support herself or
himself without contribution from the other, Therefore, the
parties hereby expressly waive, discharge and release any and all
rights and claims which they may now or hereafter have, by reason
14
,
of the parties' marriage, to alimony, alimony pendente lite,
support or maintenance and they acknowledge that this Agreement
constitutes a final determination for all time of either party's
obligation to contribute to the support and maintenance of the
other. It shall be, from the execution date of this Agreement,
the sole responsibility of each of the respective parties to
sustain himself or herself without seeking any additional support
from the other party.
7. HEALTH INSURANCE FOR HUSBAND. Wife agrees that
she shall continue to maintain Husband on the medical and
hospitalization insurance coverage provided as a benefit of her
employment until the date a divorce decree is entered with
respect to the parties. Wife further agrees to cooperate
thereafter in assisting Husband to obtain COBRA coveraqe if he so
desires, but such coverage shall be at Husband's sole expense.
8. CUSTODY.
<a) Leaa1 and Phvsical Custodv. The parties
agree that at this time, it is in the best interests of their
children that Wife be their primary legal and physical custodian,
subject to Husband's rights of partial physical custody as set
forth herein. Wife agrees that major decisions concerning the
parties' children, including but not necessarily limited to their
health, welfare, education, religious training and upbringing
shall be made after discussion and consultation with Husband,
with a view toward obtaining and following a harmonious policy in
the children's best interests. Each party shall keep the other
15
.
informsd of the progress of the children's educational and social
adju.t.ents when in his or her care. Each party agrees not to
impair the other party's custodial rights as regards the
childrsn. The partiee shall give support to one another in their
role as parents, and take into account the views of the other
regarding the physical and emotional well-being of their
children. Each party agrees not to attempt to alienate the
affections of the children from the other party nor to permit any
third party to so alienate the affections of the children from
the other party. The parties agree that they will encourage ths
children to contact the other party by telephone. Oay-to-day
deci.ions will be the responsibility of the parent then having
phy.ical custody.
(b) Emeraencies. With regard to any emergency
decisions which must be made, the parent having physical custody
of the child or children at the time of the emergency shall be
psrmitted to make any immediate deoisions necessitated thereby.
However, that parent shall inform the other parent of the
emergency and consult with him or her as soon as possible.
(c) Access to Records. Each parent shall be
entitled to complete and full information from any doctor,
dentist, teacher or authority and to have copies of any reports
given to either party as a parent.
(d) Livina Arranaernents. Wife and Husband do not
want to establish a fixed schedule regarding the physical custody
of the children at thie time, Instead, the parties believe that
16
.
it i. in the children's best interests to maintain the flexible
schedule that they now have. It is understood by the parties
that the exact period of physical custody must necessarily be the
eubject of periodic negotiation between them. They therefors
agree to consult as necessary and to cooperate with one another
in scheduling the children's custodial periods with their father
and to take into account the respective schedules and obligations
of each other and of the children. In light of the age of the
children, the parties further agree to take into account the
wishes and desires of the children in scheduling custodial
arrangements. Husband shall give Wife written notice of his
intention to have custody of the children at least twenty-one
(21) days in advance. Wife agrees that she will pay directly to
the travel agent, an amount no greater than the cost of one (1)
round-trip discount, advance purchase coach airline ticket
between her home and Husband's home for each child two (2) times
each ysar to facilitate custodial periods with Husband.
9. CHILD SUPPORT.
(a) Basic Child SUDDort.
(1) Periodic Pavments. Child support shall
be pursuant to the order entered at H95-B5564-DU in the circuit
Court for the county of Ingham, state of Michigan, on May 2,
1996, and any subsequent order.
(b) Health Insurance for children. Both parties
shall maintain health insurance for the children pursuant to the
Michigan Order.
17
(e) Unreimbursed EXDenses. The parties agree
that they will share equally any unreimbursed medical expenses
for the children including, but not limited to, medica1,
hospital, prescription drug, psychiatric, psychological, dental,
orthodontic and vision expenses. In a non-emergency situation,
the decision to incur extraordinary medical expenses shall be by
mutual consent of the parties, such consent not to be
unreasonably withheld. commencing on the execution date of this
Agreement, each party agrees that he or she shall remit to the
other, within seven (7) days of receipt, any reimbursement
received by him or her for claims made by, charges incurred by or
the out-of-pocket costs of the other party and the children which
are due and owning to the other.
(d) Underaraduate Education. It is the intention
of the parties that their children attend an undergraduate
college or university or other post-secondary educational
institution if academically able and willing to do so. The
parties agree that they will share equally the educational
expenses of their children. "Educational expenses" for purposes
of this subparagraph shall be defined as application fees,
tuition, room and board, books and fees, less a sum equal to
twenty percent (20') of the gross educational expenses per child
per year (representing each child's actual or imputed earnings
from employment or work-study) and less any scholarships,
fellowShips or grants received by the child but not loans, at
such undergraduate institutions as are reasonable and appropriate
for the children and which have been selected after consultation
between the parties as to the appropriateness of the contemplated
18
~
in.titution. Notwithstanding the foregoing, however, in no event
.hall Husband be required to pay, for each child in anyone (1)
acadeaic year, more than a sum equal to fifty percent (Sot) ot
the cost ot tuition, room and board for that academic year at the
Pennsylvania state University, main campus, for a full-time in-
.tate .tudent; nor shall lIusband be required to pay for any more
than four (4) academic years of undergraduate education per
child; nor shall he have any obligation for any educational
expense. not incurred within five (5) years of each child'.
graduation from high school. Except as otherwise set forth
herein, Husband's obligation pursuant to this subparagraph .hall
be paid directly to the educational institution. In the event of
Husband's diSability or unemployment which results in a
.ub.tantial reduction of income at a time during which he ha.
obligation. pursuant to this subparagraph, Husband's total
Obligation will reaain unchanged but he shall be entitled to pay
ott the Obligation, as he and Wife ehal1 agree, at a reduced rate
over time by paying, directly to Wife, reimbursement for any
payments she made toward lIusband's obligation during his pariod
at di.ability.
10. WAIVER OF INHERITANCE RIGIITS. Effective upon the
execution date of this Agreement, Husband and Wife each waives
all rights of inheritance in the estate of the other, any right
to elect to take against the will or any trust of the other or in
which the other has an interest, and each of the parties waives
19
t
any additional rights which said party has or may have by reason
of their marriage, except the rights saved or created by the
terms of this Agreement. This waiver shall be construed
generally and shall include, but not be limited to, a waiver of
all rights provided under the laws of Pennsylvania, or any other
juriediction. Notwithstanding the foregoing, however, in the
event that either party hereto executes a will or codicil after
the execution date of this Agreement and provides for the other
spoue8 in said will or codicil a benefit other than as provided
by the terms of this Agreement, then this waiver provision shall
not bar the surviving spouse from taking under such will or
codicil.
11. WAIVER OF BENEFICIARY DESIGNATION. Unless
otherwise specifically set forth in this Agreement, each party
hereto specifically waives any and all beneficiary rights in and
to any asset, benefit or like program carrying a beneficiary
designation which belongs to the other party under the terms of
this Agreement, including, but not limited to, pensions and
retirement plans of any sort or nature, deferred compensation
plans, life insurance pOlicies, annuities, stock accounts, bank
accounts, final paychecks or any other post-death distribution
scheme, and each party expressly states that it is his and her
intention to revoke by the terms of this Agreement any
beneficiary designations naming the other which are in effect as
of the date of execution of this Agreement. If and in the event
the other party continues to be named as a beneficiary and no
20
alternate beneticiary is otherwise designated, the beneticiary
shall be deemed to be the estate ot the deceased party.
Notwithstanding the foregoing, however, in the event that either
party hereto specitically designatee the other party as a
beneticiary at any asset after the date at execution at this
Agreement, then this waiver provision shall not bar that party
tram qua1itying ae such beneficiary.
12. RELEASE OF CLAIMS.
(a) Husband and Wife acknowledge and agree that
the property diepositions provided for herein constitute an
equitable distribution of their assets and liabilities pursuant
to 13502 at the Divorce Code and Husband and Wife hereby waive
any right to division of their property except as provided for in
this Agreement. Furthermore, except as otherwise provided tor in
thi. Agreement, each at the parties hereby specitica11y waives,
releases, renounces and forever abandons any claim, right, title
or interest whatsoever he or ehe may have in property transferred
to the other party pursuant to this Agreement or identified in
this Agreement as belonging to the other party, and each party
agrees never to assert any claim to said property or proceeds in
the future. Howsver, neither party is released or discharged
from any obligation under this Agreement or any instrument or
document executed pursuant to this Agreement. Husband and Wife
shall hereafter own and enjoy independently of any claim or right
of the other, all items of personal property, tangible or
intangible, acquired by him or her from the date of execution of
21
~
this Agreement with full power in him or her to dispose of the
Bame fully and effectively for all purposes.
(b) Each party hereby absolutely and
unconditionally releases and forever discharges the other and the
estats of the other for all purposes from any and all rights and
obligations which either party may have or at any time hereafter
has for past, present or future support or maintenance, alimony
pendente lite, alimony, equitable distribution, counsel fees,
costs, expenses and any other right or obligation, economic or
otherwise, whether arising out of the marital relationship or
otherwise, including all rights and benefits under the
Pennsylvania Divorce Code of 1980, its supplements and
amendments, as well as any other law of any other jurisdiction,
except and only except all rights and obligations arising under
this Agreement or for the breach of any of its provisions.
(c) Each party hereby absolutely and
unconditionally releases and forever discharges the other and his
or her heirs, executors, administrators, assigns, property and
estate from any and all rights, claim, demands or obligations
arising out of or by virtue of the marital relationship of the
parties whether now existing or hereafter arising. The above
release shall be effective regardless of whether such claims
arise out of any former or future acts, contracts, engagements or
liabilities of the other or by way of dower, curtesy, widow's or
widower's rights, family exemption or similar allowance, or under
the intestate laws or the right to take against the spouse's
22
.
,
'. .
will, or the right to treat a lifetime conveyance by the other as
te.tamentary or all other rights of a surviving spouse to
participate in a deceased spouse's estate, whether arising under
the laws of Pennsylvania, any state, commonwealth or territory of
the united states, or any other country.
(d) Except for the obligations of the parties
contained in this Agreement and such rights as are expressly
reserved therein, each party gives to the other by the execution
of this Agreement an absolute and unconditional release and
discharge from all causes of action, claims, rights or demand
whatsoever in law or in equity, which either party ever had or
now has against the other.
13. PRESERVATION OF RECORDS. Each party will keep and
preserve for a period of four (4) years from the date their
divorce decree is entered all financial records relating to the
marital estate, and each party will allow the other party access
to those records in the event of tax audit.
14. MODIFICATION. No modification, rescission, or
amendment to this Agreement shall be effective unless in writing
signed by each of the parties hereto.
15. SEVERABILITY. If any provision of this Agreement
is held by a court of competent jurisdiction to be void, invalid
or unenforceable, the remaining provisions hereof shall
nevertheless survive and continue in full force and effect
without being impaired or invalidated in any way.
23
16. BREACH. If either party hereto is in breach or
any provision hereof, the other party shall have the right, at
his or her election, to sue for damages for such breach, or seek
such other remedies or relief as may be available to him or her.
The non-breaching party shall be entitled to recover from the
breaching party all costs, expenses and legal fees actually
incurred in the enforcement of the rights of the non-breaching
party.
17. WAIVER OF BREACH. The waiver by one party of any
breach of this Agreement by the other party will not be deemed a
waiver of any other breach of this Agreement.
lB. NOTICE. Any notice to be given under this
Agreement by either party to the other shall be in writing and
may be effected by registered or certified mail, return receipt
requested. Notice to Wife will be sufficient if made or
addressed to the fOllowing I
Alice P.L. Schwartz
110 Parkview Road
New Cumberland, PA 17070
and to Husband, if made or addressed to the fol1owingl
Berl N. Schwartz
523 Bainbridge, Apartment 4B
East Lansing, MI 48823
Each party may change the address for notice to him or her by
giving notice of that change in accordance with the provisions of
this paragraph.
24
\
19. APPLICABLE LAW. All acts contemplated by this
Agreement shall be construed and enforced under the laws of the
commonwealth of Pennsylvania in effect as of the date of
execution of this Agreement.
20. AGREEMENT BINDING ON PARTIES AND HEIRS. This
Agreement, except as otherwise expressly provided herein, shall
bind the parties hereto and their respective heirs, executors,
administrators, legal representatives, assigns, and successors in
any interest of the parties.
21. ENTIRE AGREEMENT. Each party acknowledges that he
or she has carefully read this Agreement, including all Exhibits
and other documents to which it refers; that he or she has had
the opportunity to discuss its provisions with an attorney of his
or her own choice, and has executed it voluntarily; and that this
instrument expresses the entire agreement between the parties
concerning the subjects it purports to cover. This Agreement
should be interpreted fairly and simply, and not strictly for or
against either of the parties.
22. INCORPORATION OF EXHIBITS. All EXhibits and other
instruments referred to in this Agreement are incorporated into
this Agreement as completely as if they were copied verbatim in
the body of it.
23. MUTUAL COOPERATION. Each party shall on demand
execute and deliver to the other any deeds, bills of sale,
assignments, consents to change of beneficiaries of insurance
policies or other benefits or assets, tax returns, and other
2S
.
.
doouments, and shall do or cause to be done every other aot or
thing that may be necessary or desirable to effectuate the
provisions and purposes of this Agreement. If either party
unreas~nably fails on demand to comply with these provisions,
that party shall pay to the other party all attorney.s fees,
costs, and other expenses reasonably incurred as a result of such
failure.
24. DATE OF EXECUTION. The Ildate of executionll or
Ilexecution date" of this Agreement shall be defined as the date
upon which it is executed by the parties if they each have
executed the Agreement on the same date. Otherwise, the "date of
exeoution" or Ilexecution datell of this Agreement shall be defined
as the date of execution by the party last executing this
Agreement.
25. EFFECTIVE DATE. This Agreement shall be effective
and binding upon both parties on the execution date of this
Agreement.
26. AGREEMENT NOT TO BE MERGED. This Agreement shall
survive any divorce decree entered with respect to the parties
and shall be incorporated into any final decree of divorce of the
parties for purposes of enforcement only, but otherwise shall not
be merged into said decree. The parties shall have the right to
enforce this Agreement under the Divorce Code of 1980, as
amended, and in addition, shall retain any remedies in law or in
equity under this Agreement as an independent contraot. such
26
.
.
remedies in law or equity specifically are not waived or
released.
27. EFFECT OF RECONCILIATION OR RECONCILIATION
ATTEMPT. This Agreement shall remain in full force and effect
and shall not be abrogated even if the parties effeot a
reoonoiliation, oohabit a6 husband and wife or attempt to effeot
a reconoiliation. This Agreement shall continue in full foroe
and effect and there shall be no modification or waiver of any of
the terms hereof unless the parties in writing execute a
etatement declaring this Agreement or any term of this Agreement
to be null and void.
28. HEADINGS NOT PART OF AGREEMENT. Any headings
preceding the text of the several paragraphs and subparagraphs
hereof are inserted solely for convenience of referenoe and shall
not constitute a part of this Agreement nor shall they affeot its
meaning, construotion or effect.
29. COUNTERPARTS. This Agreement may be exeouted in
,oounterparts, each of which will be an original and whioh
together shall constitute une and the same instrument.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals on the dates of their aoknowledgements.
.'
~t!tlt' J
~=J.L - 0
ITNESS ' .
-AIL (]ll ~
ALICE P.L. SCHWARTZ, WIrE
~~TZ' IW;.1;
27
,. II .
IOIBIT "A"
'.RBOHAL ,aO'ZRTY AND FURNISHINGS TO HUSBAND
onyx and Brass Floor Lamp and Shade in living room
similar Floor Lamp in Abby's room
Blue Chair with rlower Print and Wood Legs in living room
Dark Wood Rocker in living room
Console Piano in living room (Husband specifically agrees that if
and in the event that he decides to sell the piano rather than
remove it from Wife'S residenoe then Wife shall have the right of
first refusal to purchase the piano before its sale to any third
party)
Paper Weight from mother's trip to Europe in dining room
china cups and Saucers collected by mother, some of which are in
the dining room
singer Sewing Machine in family room
Floor Model Radio in family room
Hookney Print and Frame in laundry room
Enameled kitchen table and six metal framed chairs
Small T.V. with red sides in basement
Mahogany bedroom set (twin beds, tall chest, two night stands)
Lace
silver
Noritake ohina set
Bowl from sister Elaine
Brass candlesticks
Tall and short liquor glasses
Tea glasses and brass holders
Bedroom set in daughter Rebecca's room (Which Rebeoca may use but
will revert to Husband)
30
" ,
.
EXHIBIT "1."
PAGE TWO
.
Convection oven (Husband's mother's)
S.L. Jones painting
Chioago painting
Gos8ip bench
Marenberg oval framed photos
Gumball machine
Two crystal lamps
Books and records Husband acquired prior to marriaqe
serving cart and tray in living room
Large red oriental rug in living room
Small oriental rug in dining room
Calphalon cookware
Gray 1920'S wool ruq in quest room
White lamp in guest room
Two complete sets of linen and mattress pads for twin beds
Two bed pillows
Bedsprings and mattresses on guest room beds
White wicker rocker and pillows
Amish rocker in family room
Robert Roth's desk in family room
Desk chair in family room
All cd's, vinyl records and video and cassette tapes acquired by
Husband before separation
31
. .
, .
,- ~~-=-~-------:'-:_----_)_l\1_:. _A_'_
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..
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
STATE OF '* PENNA.
...~~..~,~~,~...~z~,....".."........,',......,',....,",.,
.........,.....'",.............".., "...N,~~~1::gL.....,............,...
Versus
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.......,...,..','...., ...,..,'.".., D.ef~t..".,....", ..........,
N o. ..~~,::~~.~~..~.~.. 19
DECREE IN
DIVORCE
AND NOW, .... y\l).Y. ~~,............ ..... 19 .!!~. ... It I. ordered and
decreed that ............ .~I.~ .p'..L,.. .~. . ... .. . . . . . ... '" plaintiff,
and..... .. ..... ... ..... I .~.~, .~..... ...... .. ....... d.fendant,
are divorced from the bond. of matrimony.
The court retain. lurl.dlctlon of the following claim. which have
been ral.ed of record In thl. action for which a final order hat not yet
been entered; None. It is further ClU>EmD, AnnlDGED and 1l!XllEW, that the
terms, provisions and conditione of a certain Marital Settlll1lllllt IIqreB1ll!llt be
~.Pfft~~,~~.~y.19,.1~~~,.~.~~~~~.~to.app.incofPOrated.in.~is
Decree in Divorce by reference as fully as if the same were set forth herein at
length...Slid'A9t--.snt.Shall,not.merqe.with'but'sha11'survive,this'Decree'in
Divorce.
..
.
,
~
~
*
8
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~
CERJ'lnED copy IS~ ~y ~7. J.m iii
:'.:- ...,'. . .' ..., ... . .' 'lIe' ..lIe....,.:.., 'lIe' >llC' ,..' ..' .wo.,.' '...
By Th~ Court,
,...I!!I...~~m,~LHe':l,B..,.....".. ..,... '..........,..,....
AlI..lI Lawrence E. Welker, Protoonotary J.
~,..:~m~~y..*tl;~~~i.~y..
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c.: f;
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HAY Og 2003 ~
Joel F. Blgatel, Elqulre
211 Haverford Avenue
Suite 2F
Nartlerth, PA 19072
Atty 10 32740
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ALICE P.L. SCHWARTZ
Plalnllff
No. 94-2253 CIVIL TERM
CIVIL ACTION - LAW
VI,
BERL N. SCHWARTZ
Defendant
ORDER
AND NOW, this day of , 2003, upon conllderatlon of the
Petition to Enforce Property Settlement Agreement, It Is ORDERED that laid Petition II
DENIED.
Upon consideration of the Respondent's Cross-Pellllon for Counsel Feel, It II
ORDERED that said Pelltlon Is GRANTED and Petitioner, Alice P.L. Schwartz Is
ordered to pay Respondent's counsel fees In the amount of $ within
days of the date of this Order.
By the Court:
J.
Joel F. Blgltel, Eequlre
211 Hlverford Avenue
Suite 2F
Nlrberth, PA 19072
Ally 10 327<40
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ALICE P.L. SCHWARTZ
Plaintiff
vs.
No. 94-2253 CIVIL TERM
CIVIL ACTION. LAW
BERL N. SCHWARTZ
Defendant
DEFENDANT'S RESPONSE TO PLAINTIFF'S PETITION TO ENFORCE MARITAL
SEnLEMENT AGREEMENT AND COUNTER- PETITION FOR COUNSEL FEEl
AND NOW COMES, Respondent, Berl N. Schwartz, by and through hie Attorney,
Joel F. Blgltel, Eequlre files the following responee to plaintiff's petition to enforce rnlrital
eettlement agreement and In support thereof says the follOWing:
1. Admitted
2. Admitted
3. Admitted
4. Admitted
5. Admitted
6. Admitted
7. Admitted
8. Admitted In part, Paragraph 9(d) of the Agreement attached to the petition speaks
for Itself.
9. Admitted, It Is further averred that said agreement provided. In addition to the
requirements of the original Property Settlement Agreement , that Respondent
would be provided with Information as to the educational costs,
10. Admitted
1
11. Denied. It II further averred that Petitioner hal not been provided with any
documentation as to actual costs Incurred for Rebecca's 2000-2001 school year
delplte numerous and repeated requests for such documentation. Strict proof of
the actual expenses Is again demanded.
12. Denied. It Is further averred that Petitioner has not been provided with any
documentation as to actual costs Incurred for Rebecca's 2001-2002 school year
despite numerous and repeated requests for such documentation, Strict proof of
the actual expenses Is again demanded.
13. Denied. It Is further averred that Petitioner has not been provided with any
documentation as to actual costs Incurred for Rebecca's 2002-2003 school year
despite numerous and repeated requests for such documentation. Strict proof of
the actual expenses Is again demanded,
14. Denied. The Respondent Is without knowledge, Information, or belief as to the COlt
for the summer of 2000 as Respondent has been provided with no documentation
of the charges or costs paid. It Is further averred that the Agreement contemplated
a portion for a " full time student" and did not speak to costs for attending additional
classes during the summer months, Strict proof of the actual expenses II again
demanded,
15. Denied. Respondent paid his agreed portion for 1999-2000, He further paid
$257.36 to Penn State for Spring 2003.
16, Denied. It Is further averred that Respondent has requested documentation of the
college expenses and the actual payments towards such expenles on numeroul
occasions and that to the date of the filing of this Petition has been provided with
no documentation as to the costs or amounts actually paid,
17. Admitted. It Is admitted that the Respondent's has obtained federal loans to be
applied towards these expenses, It Is further averred for academic year 2000-2003,
Respondent has repeatedly requested that the Petitioner and the girls execute
student loan release documents such that he could obtain funding for the current
academic year. Further, for several semesters, the documentation was either not
returned to the Petitioner or his counsel as requested orwas returned late. such that
the loanl were not approved,
16, Denied, As Respondent has not been provided with documentation as to the costs,
he Is no knowledge, information. or belief as to the averment ofthe total costs, Strict
proof of the actual expenses Is again demanded,
2
19. Admitted In part, It Is admitted that Respondent Is under Agreement responsible for
40 % ofthe educational costs, as defined In the Agreement, for Rebecca.ltls further
averred that Respondent has not been provided or given any documentation as to
the costs or actual monies paid towards the costs, Strict proof of the actual
expenses Is again demanded,
20, Denied. As Respondent has not been provided with documentation as to the costs,
he Is no knowledge, Information, or belief as to the averment of the costs. Strict
proof of the actual expenses Is again demanded. ,.
21. Admitted In part. It Is admitted that Respondentia under Agreement responsible for
40 % of the educational costs for Abigail subject to the cap set forth In the
Agreement. It Is further averred that Respondent has not been provided or given
any documentation as to the costs or actual monies paid towards the costs. Strict
proof of the actual expenses Is again demanded,
22, Denied. It Is further averred that Respondent's loss of his unemployment resulted
In a substantial reduction of Income such that under Paragraph 9(d) of the
Agreement that he Is entitled to pay his contribution at a reduced rate over time by
paying, directly to wife. reimbursement for any payments she made towardl
husband's obligation during his period of disability. It Is further averred that
Respondent has been willing to resolve the matter by forwarding such payments
upon receipt of documentation of the actual expenses paid. Delplte thele repeated
requestl. no such documentation has been forth coming. It II further averred that
any reimbursements must be contingent upon Respondent's receipt of
documentation as to the actual expenses Incurred,
23. Denied, Paragraph 16 of the Agreement does provide for recovery of the non
breaching party all costs, expenses and legal fees actually Incurred In the
enforcement of the rights of the non breechlng party. It Is further averred that
Respondent has failed to provide any documentation whatsoever as to the actual
costs of the daughter's educational costs and as such, Is In breach of the
Agreement and has forfeited any right to recover counsel fees or costs.
24. Relpondent has not been provided with any statement of legal fees but denies that
he Is responsible for same as a result of Respondent's and the children's refusal to
execute documents to enable him to obtain student loan financing or to provide any
3
documentation whatloever regarding the actual COltl of the daughters education.
It II further averred that Paragraph 23 of the Agreement providel that each party
Ihall, on demand, execute and deliver luch documentl that are necenary to effect
the provillonl and purpolel of the Agreement and Ihall caule to be done every
other act or thing that may be necellary to effectuate the provlslonl and PUrp0881
of thll Agreement. It II further averred that Relpondent, by failing and refusing to
execute student loan documents, or cause the girls to execute and return them in
a timely fashion, has breached the Agreement.
25. Denied. It Is further averred that Petitioner's failure to comply with the terms of the
Agreement places her In breach of the Agreement.
26. Admitted In part. It Is admitted that the Court of Common Pleas has the power to
effect compliance with the terms of the Agreement. It Is denied that a judgment
against Respondent Is authorized under the terms of the Agreement and the
clrcumltances herein.
27. Denied. It Is further averred that despite repeated requests, Relpondent hal not
been supplied with any documentation whatsoever concerning the actual chargel
and COltl paid for the girls tuition. Strict proof of the actual expenses Is again
demanded.
WHEREFORE, Respondent requests this Honorable Court to enter an Order
denying the petition.
COUNTER. PETITION FOR COUNSEL FEES
26. Respondent's answers set forth In Paragraphs 1-27 are fully Incorporated herein.
29. The Agreement states In Paragraph 23 that the parties are charged with the duty
to cooperate and to do or cause to be done every act or thing necessary to
effectuate the provisions and purposes of this Agreement.
30. Despite repeated requests by Respondent, petitioner has failed to produce any
documentation whatsoever as to the educational costs and amounts paid toward
those costs such that Respondent may confirm of his obligation under the
Agreement.
4
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Joel F, Blgstel, Esquire, hereby states that ha 18 tha Counsel for the Plaintiff In this
mltter and verifies that the statements made In the foregoing Respon.e to Plaintiffs
Petition to Enforce Marital Settlement are true and correct to the best of his knowledge,
Information and belief, The undersigned understands that the statements therein are
made subject to the penalties of 18 Pa, C.S,A, ~ 4904 relating to unsworn falsification to
luthorlties,
~.~g#
J el F. Blgatel, Esq re
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11. Denied, It Is further averred that Petitioner has not been provided with any
documentation as to actual costs Incurred for Rebecca's 2000-2001 school year
despite numerous and repeated requests for such documentation, Strict proof of
the actual eKpenses Is again demanded,
12, Denied, 1\ Is further averred that Petitioner has not been provided with any
documentation as to actual costs incurred for Rebecca's 2001-2002 school year
despite numerous and repeated requests for such documentation. Strict proof of
the actual eKpenses is again demanded.
13, Denied, It Is further averred that Petitioner has not been provided with any
documentation as to actual costs Incurred for Rebecca's 2002-2003 school year
despite numerous and repeated requests for such documentation, Strict proof of
the actual eKpenses is again demanded,
14, Denied, The Respondent Is without knowledge. Information. or belief as to the cost
for the summer of 2000 as Respondent has been provided with no documentation
of the charges or costs paid, It Is further averred that the Agreement contemplated
a portion for a " full time student" and did not speak to costs for attending additional
classes during the summer months, Strict proof of the actual eKpenses is again
demanded,
15, Denied. Respondent paid his agreed portion for 1999-2000, He further paid
$257,36 to Penn State for Spring 2003,
16, Denied, It is further averred that Respondent has requested documentation of the
college eKpenses and the actual payments towards such eKpenses on numerous
occasions and that to the date of the filing of this Petition has been provided with
no documentation as to the costs or amounts actually paid,
17, Admilled, It Is admitted that the Respondent's has obtained federal loans to be
applied towards these eKpenses, It Is further averred for academic year 2000-2003.
Respondent has repeatedly requested that the Petitioner and the girls eKecute
student loan release documents such that he could obtain funding for the current
academic year. Further, for several semesters, the documentation was either not
returned to the Petitioner or his counsel as requested or was returned late. such that
the loans were not approved,
18, Denied, As Respondent has not been provided with documentation as to the costs.
he Is no knowledge. Information, or belief as to the averment ofthe total costs, Strict
proof of the actual eKpenses Is again demanded,
2
19, Admitted In part, It is admitted that Respondent Is under Agreement responsible for
40 % of the educational costs. as defined in the Agreement. for Rebecca,l\ Is further
averred that Respondent has not been provided or given any documentation as to
the costs or actual monies paid towards the costs, Strict proof of the actual
expenses is again demanded,
20, Denied, As Respondent has not been provided with documentation as to the costs,
he Is no knowledge, Informallon. or belief as to the averment of the costs, Strict
proof of the actual expenses is again demanded,
21, Admitted In part, It Is admitted that Respondent Is under Agreement responsible for
40 % of the educational costs for Abigail subject to the cap set forth In the
Agreement, It is further averred that Respondent has not been provided or given
any documentallon as to the costs or actual monies paid towards the costs, Strict
proof of the actual expenses Is again demanded,
22, Denied, It Is further averred that Respondent's loss of his unemployment resulted
in a substantial reduction of Income such that under Paragraph 9(d) of the
Agreement that he is entitled to pay his contribullon at a reduced rate over time by
paying, directly to wife, reimbursement for any payments she made towards
husband's obllgallon during his period of disability, It is further averred that
Respondent has been willing to resolve the matter by forwarding such payments
upon receipt of documentation ofthe actual expenses paid, Despite these repeated
requests. no such documentallon has been forth coming, It Is further averred that
any relmbursaments must be conllngent upon Respondent's receipt of
documentallon as to the actual expenses Incurred,
23, Denied, Paragraph 16 of the Agreement does provide for recovery of the non
breaching party all costs, expenses and legal fees actually Incurred in the
enforcement of the rights of the non breechlng party, It is further averred that
Respondent has failed to provide any documentation whatsoever as to the actual
costs of the daughter's educallonal costs and as such. Is In breach of the
Agreement and has forfeited any right to recover counsel fees or costs,
24 Respondent has not been provided with any statement of legal fees but denies that
he is responsible for same as a result of Respondent's and the children's refusal to
execute documents to enable him to obtain student loan financing or to provide any
3
documentation whatsoever regarding the actual costs of the daughters education,
It is further averred that Paragraph 23 of the Agreement provides that each party
shall. on demand. execute and deliver such documents that are necessary to effect
the provisions and purposes of the Agreement and shall cause to be done every
other act or thing that may be necessary to effectuate the provisions and purposes
of this Agreement. It is further averred that Respondent. by failing and refusing to
execute student loan documents, or cause the girls to execute and return them in
a timely fashion. has breached the Agreement,
25, Denied, It is further averred that Petitioner's failure to comply with the terms of the
Agreement places her In breach of the Agreement.
26 Admitted in part, It Is admitted that the Court of Common Pleas has the power to
effect compliance with the terms of the Agreement. It Is denied that a judgment
against Respondent Is authorized under the terms of the Agreement and the
circumstances herein,
27, Denied, It Is further averred that despite repeated requests. Respondent has not
been supplied with any documentation whatsoever concerning the actual charges
and costs paid for the girls tuition, Strict proof of the actual expenses is again
demanded,
WHEREFORE, Respondent requests this Honorable Court to enter an Order
denying the petition,
COUNTER. PETITION FOR COUNSEL FEES
28, Respondent's answers set forth In Paragraphs 1-27 are fully incorporated herein,
29, The Agreement states in Paragraph 23 that the parties are charged with the duty
to cooperate and to do or cause to be done every act or thing necessary to
effectuate the provisions and purposes of this Agreement.
30, Despite repeated requests by Respondent. petitioner has failed to produce any
documentation whatsoever as to the educational costs and amounts paid toward
those costs such that Respondent may confirm of his obligation under the
Agreement.
4
31. Even through the filing of the Petition In this matter Alice P.L. Schwartz falls to
attach any documents, exhibits, or breakdown of the costs claimed, but rather
makes unsupported claims of bottom line amounts claimed due.
32. By so doing, Allee P. L. Schwartz stands In breach of the Agreement and as a direct
result. Respondent Berl Schwartz has been caused to Incur counsel fees In the
regard.
WHEREFORE. Petitioner requests this Honorable Court to enter an Order
assessing Respondent reasonable counsel fees against the Petitioner, Alice P. L.
Schwartz.
Respectfully submitted,
/:&-/:f2
oel F, Blgatel, quire
Counsel for Berl N. Schwartz
5