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HomeMy WebLinkAbout02-3435GREGORY R. TRIMBUR, Plaintiff MARLIES G. TRIMBUR, Defendant IN THE COURT OF COMIVION PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. -- IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warded that if you fail to do so, the ease may proceed without you and a decree of divorce or annulment may be entered against you by the Court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other fights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the office of the Prothonotary, Cumberland County Courthouse. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES, OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Dauphin County Lawyer Referral Service 213 N. Front Street Harrisburg, PA 17101 (717) 232-7536 GREGORY R. TRIMBUR, Plaintiff MARLIES G. TmMBUR, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW d' '~ NO. ~ -- 3q3~ o~- IN DiVORCE COMPLAINT IN DIVORCE UNDER SECTION 3301 (c) AND (d) OF THE DIVORCE CODE AND NOW comes the above Plaintiff, Gregory R. Trimbur, by and through his attorney, Joseph U. Metz, Esquire, and seeks to obtain a decree in divorce from the above-named Defendant, upon the grounds hereinafter set forth: 1. The Plaintiff, Gregory R. Trimbur, is an adult individual who resides at 425 Bernheisel Bridge Road, Carlisle, Pennsylvania 17013. 2. The Defendant, Marlies G. Trimbur, is an adult individual who resides at 425 Bemheisel Bridge Road, Carlisle, Pennsylvania 17013. 3. The Plaintiff has been a bona fide resident of the Commonwealth of Pennsylvania for at least six (6) months immediately prior to the filing of this Complaint. The Plaintiff and Defendant were marred on January 1, 1995. The Plaintiff and Defendant are both citizens of the United States of 5. America. 6. 7. There have been no prior actions in divorce between the parties. The Plaintiff and Defendant are not members of the Armed Services of the United States or any of its allies. 8. Plaintiff has been advised of the availability of counseling and that he may have the fight to request that the Court require the parties to participate in counseling. 9. The causes of action and sections of Divorce Code under which Plaintiff is proceeding are: Bo Section 3301 (c). The marriage of the parties is irretrievably broken. After ninety (90) days have elapsed from the date of the service of this Complaint, Plaintiff intends to file an Affidavit consenting to a divorce. Section 3301 (d). The marriage of the parties is irretrievably broken. WHEREFORE, the Plaintiff respectfully requests the Court to enter a Decree in Divorce. Respectfully submitted, 214 Pine Street Harrisburg, PA 17101 (9717) 232-0879 -2- GREGORY R. TRIMBUR, : Plaintiff : MARLIES G. TRIMBUR, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. IN DIVORCE I verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unswom falsification to authorities. By: Gregory R. Trimbur, Plaintiff Dated: .. '~//~ (/~O~ GREGORY TRIMBUR, Plaintiff MARLIES TRIMBUR, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3435 CIVIL CIVIL ACTION -- LAW IN DIVORCE AFFIDAVIT OF CONSENT 1. A Compliant in Divorce under §3301(c) of the Divorce Court was filed on July 17, 2002. 2. The marriage of the Plaintiff and Defendant is Irretrievably broken and ninety (90) days have elapsed from the date of filing and service of the Complaint. 3. I consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. I verify that the statements made in this affidavit are tnae and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to the unswom falsification to authorities. Gregory ~ir~ur Plaintiff GREGORY TRIMBUR, Plaintiff Ve MARLIES TRIMBUR, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3435 CIVIL CIVIL ACTION -- LAW IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER §3301(C) OF THE DIVORCE CODE 1. I consent to the entry of a final decree of divorce without notice. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. I understand that I will not be divorces until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the prothonotary. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to the unswom falsification to authorities. Date: ~rego~ T~mbur Plaintiff 19635_l GREGORY TRIMBUR, Plaintiff MARLIES TRIMBUR, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3435 CIVIL CIVIL ACTION -- LAW IN DIVORCE AFFIDAVIT OF CONSENT 1. A Compliant in Divorce under §3301(c) of the Divorce Court was filed on July 17, 2002. 2. The marriage of the Plaintiff and Defendant is Irretrievably broken and ninety (90) days have elapsed from the date of filing and service of the Complaint. 3. I consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. I verify that the statements made in this affidavit are tree and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to the unswom falsification to authorities. Date: GREGORY TRIMBUR, Plaintiff MARLIES TRIMBUR, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3435 CIVIL CIVIL ACTION -- LAW IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER §3301(C) OF THE DIVORCE CODE 1. I consent to the entry of a final decree of divorce without notice. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses ifI do not claim them before a divorce is granted. o I understand that I will not be divorces until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the prothonotary. I verify that the statements made in this affidavit are tree and correct. I understand that false statements herein are made subject to the penalties of 1:8 Pa. C.S. §4904 relating to the unswom falsification to authorities. Date: t'/,/.3/0 ~ Maflies Trimbur' Defendant 19636_ 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GREGORY TRIMBUR, Plaintiff VS. MARLIES TRIMBUR, Defendant CIVIL ACTION - LAW NO. IN DIVORCE AFFIDAVIT OF SERVICE I, Joseph U. Metz, hereby aver that the Complaint in Divorce in this case was served upon Marlies Trimbur by First Class Mail, postage prepaid, on -.jcl[j? /~J 2002. J~0~. Metz, Esquire MARRIAGI gE'I'TLEMENT AGI EMENT THIS AGREEMENT is made and entered into between Gregory Trimbur and Marlies Trimbur, herein referred to as Husband and Wife. The parties were married on January l, 1995. As a consequence of disputes and unhappy differences, the parties have separated. The parties desire to eonfh-iii their separation and make arrangements in connection therewith, including the settlement of their property rights, custody, support, and all other rights and obligations arising out of the marriage relationship.. It is therefore agreed: 1. CONSIDERATION The consideration for this Agreement is the mutual promises and agreement herein contained. 2. SEPARATION AND NONINTERFERENCE A. It will be lawful for each party at all times hereafter to live separate and apart from the other party at such place or places as he or she may from lime to time choose or deem fit. B. Each party shall be free from interference, authority and control, direct or indirect, by the other, as fully as if he or she were single and unmarried. Neither shall bother the other or compel or endeavor to compel the other to cohabit or dwell with him or her. 3. MUTUAL RELEASE Subject to the provisions of this Agreement, each party has released and discharged, and by this Agreement does for himself or herself, and his or her heirs, legal representatives, executors, administrators, and assigns, release and discharge the other of and from all causes of action, claims, rights, or demands whatsoever in law or equity, which either of the parties ever had or now has against the olher, except any or all cause or causes of action for divorce. 4. FULL 1)ISCLOSURE The provisions of this Agreement and their legal effect are fully understood by each party to this Agreement, and each party acknowledges that the Agreement is fair and equitable, that it is being entered into voluntarily, and that it is not the result of any duress or undue influence. Husband and Wife each represent and warrant to the other that he or she has made a full and complete disclosure to the other .of ali assets of any nature whatsoever in which such party has an interest, of the sources and amount of the income of such party of every type whatsoever, and of all other facts relating to the subject matter of this Agreement. Wife represents that she was not represented by an attorney in reaching this Agreement, and while aware of her right to have an attorney, she affirmatively chooses not to do so. Husband represents that he was represented by Joseph Metz, Esquire, in reaching this Agreement. 5. EQUITABLE DIVISION By this Agreement, the parties have intended to effect an equitable division of their marital property. This division is not intended by the parties to constitute in any way a sale or exchange of assets. 6. SUBSEQUENT DIVORCE A. AGREEMENT NOT PREDICATED ON DIVORCE- It is specifically understood and agreed by and between the parties hereto and each of the said parties does hereby warrant and represent to the other that the execution and delivery of this Agreement is not predicated upon nor made subject to any agreement for institution, prosecution, defense, or for the non-prosecution or -2- non-defense of any action for divorce; provided, however, that nothing contained in this Agreement shall prevent or preclude either ol' the parties hereto l¥om commencing, instituting or prosecuting any action or actions for divorce, either absolute or otherwise, upon just, legal and proper grounds; nor to prevent either party from defending any such action which has been, may or shall be instituted by the other party, or from making any just or proper defense thereto. It is warranted, covenanted and represented by Husband and Wife, each to the other, that this Agreement is lawful and enforceable and this warranty, covenant and representation is made for the specific purpose of inducing Husband and Wife to execute the Agreement. Husband and Wife each knowingly and understandingly hereby waives any and all possible claims that this Agreement is, for any reason, illegal or for any reason whatsoever, unenforceable in whole or in part. Husband and Wife each do hereby warrant, covenant and agree that, in any possible event, he and she are and shall forever be estopped from asserting any illegality or unenforceability as to all or any part of this Agreement. B. ENTRY AS PART OF DECREE- It is the intention of the parties that the Agreement shall survive any action for divorce which may be instituted or prosecuted by either party and no order, judgment or decree of divorce, temporary, final or permanent, shall affect or modify the financial terms of this Agreement. This Agreement shall be incorporated in but shall not merge into any such judgment or decree of final divorce, but shall be incorporated for the purposes of enforcement only. C. MUTUAL CONSENT DIVORCE- The parties agree and acknowledge that their marriage is irretrievably broken, that they do not desire marital counseling, and that they both consent to the entry ora decree in divorce pursuant to 23 Pa.C.S.A. Section 3301(c). Accordingly, both parties agree to forthwith -3- execute such consents, affidavits, or other documents and to direct their respective attorneys to lbrthwith file such consents, affidavits, or other documents as may be necessary to promptly proceed to obtain a divorce pursuant to said 23 Pa.C.S.A. Section 3301(c). Upon request, to the extent permitted by law and the applicable Rules of Civil Procedure, the named defendant in such divome action shall execute any waivers of notice or other waivers necessary to expedite such divorce. 7. DIVISION OF PERSONAL PROPERTY Wife agrees that all of the property in the possession of Husband shall be the sole and separate properly of Husband including the items attached hereto on Schedule A which remain in the marital home; and Husband agrees that all of the property in the possession of Wife shall be the sole and separate property of Wife. The parties do hereby specifically waive, release, renounce and forever abandon whatever claims, if any, he or she may have with respect to the above items which shall become the sole and separate property of the other. 8. DIVISION OF MOTOR VEHICLES With respect to the motor vehicles owned by one or both of the parties, they agree as follows: WIFE- will retain the 2002 Honda Accord and Husband will continue to pay the monthly payment of five hundred seventeen ($517.41) dollars and forty one cents until it is paid offor until Wife no longer owns it, whichever comes first. HUSBAND- will have full ownership of the 1999 Toyota Tacoma Truck. The titles to the said motor vehicles shall be executed by the parties, if appropriate, for effectuating transfer as herein provided, on the date of execution of this Agreement or at any time thereafter at the request of either p~my. -4- 9. From and after the date of the signing of this Agreement, both parties shall have complete freedom of disposition as to his/her separate property and any property which is in their possession or control pursuant to this Agreement and may mortgage, sell, grant, convey or otherwise encumber or dispose of such property., whether real or personal, whether such property was acquired before, during or after marriage, and neither Husband nor Wife need join in, consent to, or acknowledge any deed, mortgage, or other instrument of the other pertaining to such disposition of property. 10. DIVISION OF REAL PROPERTY Husband and Wife hereby agree and acknowledge that they own certain real property located at 425 Bernheisel Bridge Road, Carlisle, Pennsylvania, as tenants by the entireties. Wife hereby agrees to convey all her right, title and interest in said property to Husband. Wife agrees to execute a deed or other instrument of conveyancing necessary to effectuate this transfer at the time of the execution of this document. The deed shall be prepared by Husband's attorney. The parties acknowledge that there is an existing mortgage against this property held by National City Mortgage. Husband agrees to obtain financing such that he shall either satisfy said mortgage in total or shall assume tota'l liability for the mortgage. Husband shall hold Wife harmless and indemnify her from liability for this obligation and other obligations arising from this property. 11. PAYMENT OF SPECIFIED OBLIGATIONS The parties agree that the following constitute joint marital obligations which shall be paid by the following person: -5- A. WIFE- All debt in her name alone. B. HUSBAND- All debt in his name alone. Neither Husband nor Wife shall seek alimony or spousal support from the other. 13. MISCELLANEOUS All assets including, but not limited to, retirement: accounts, 401(k) accounts, savings accounts, checking accounts, certificates of deposit and life insurance policies shall be the sole and separate property of the title holder of said asset. The joint PNC Investment Account will be kept by Wife. The FCFCU Account will be kept by tlusband. The parties believe and agree that the division of property heretofore made by this Agreement is a non-taxable division of property between co-owners rather than a taxable sale or exchange of such property. Each party promises not to take any position with respect to the adjusted basis of the property assigned to him or her or with respect to any other issue which is inconsistent with the position set forth in the preceding sentence on his or her federal or state income tax returns. The parties have heretofore filed joint federal and state tax returns. Both parties agree that in the event any deficiency in federal, state or local income tax is proposed, or any assessment of any such tax is made against either of them, each will indemnify and hold harmless the other from and against any loss or liability for any such tax deficiency or assessment and any interest, penalty and expense incurred in connection therewith. Such tax, interest, penalty or expense shall be paid solely and entirely by the individual who is finally determined to be the cause of the misrepresentations or failures to disclose the nature and extent of his or her separate income on the aforesaid joint returns. -6- On the attached Exhibit "A" is a list of items of personal property and which party will take possession of them. 14. GENERAL PROVISIONS A. WARRANTY AS TO EXISTING OBLIGATIONS- Each party represents that they have not heretofore incurred or contracted for any debt or liability or obligation for which the estate of the other party may be responsible or liable except as may be provided for in this Agreement. Each party agrees to indemnify or hold the other party harmless from and against any and all such debts, liabilities, or obligations of every kind which may have heretofore been incurred by them, including those for necessities, except for the obligations arising out of this Agreement. B. WARRANTY AS TO FUTURE OBLIGATIONS- Wife and Husband each covenant, warrant, represent and agree that each will now and at all times hereafter save harmless and keep the other indemnified from all debts, charges, and liabilities incurred by the other after the execution date of this Agreement, except as may be otherwise specifically provided for by the terms of this Agreement and that neither of them shall hereat~er incur any liability whatsoever for which the estate of the other may be liable. C. SEVERABILITY- If any term, condition, clause, or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause, or provision shall be stricken from this Agreement and in all other respects this Agreement shall be valid and continue in full force, effect, and operation. Likewise, the failure of any party to meet his or her obligations under any one or more oflhe paragraphs herein, with -7- the exception of the satisfaction of the conditions precedent, shall in no way void or alter the remaining obligations of the parties. D. OTHER DOCUMENTATION- Wife and ttusband covenant and agree that they will forthwith execute any and all written instruments, assignments, releases, satisfactions, deeds, notes or such other writings as may be necessary or desirable for the proper cffectuation of this Agreement, and as their respective counsel shall mutually agree should be so executed in order to carry out fully and effectively the terms of this Agreement. E. ENTIRE AGREEMENT- This Agreement contains the entire understanding of the parties, and there are no representations, warranties, covenants, or undertakings other than those expressly set forth herein. F. WAIVER OR MODIFICATION TO BE IN WRITING- No modification or waiver of any of the terms hereof shall be valid unless in writing and signed by both parties and no waiver of any breach hereof or default hereunder shall be deemed a waiver of any subsequent default of the same or similar nature. G. MUTUAL COOPERATION- Each party :shall, at any time and from time to time hereafter, take any and all steps and execute, acknowledge, and deliver to the other party any and all further instruments and/or documents that the other party may reasonably require for the purpose of giving full force and effect to the provisions of this Agreement. H. LAW GOVERNING- This Agreement shall be construed and governed in accordance with the laws of the Commonwealth of Pennsylvania. I. BINDING EFFECT- Except as otherwise stated herein, this Agreement shall bc binding and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and assigns. -8- advisable to carry into effect this mutual waiver and relinquishment of all such interests, fights and claims. N. ATTORNEY'S FEES FOR ENFORCEMENT- In the event that either party breaches any provision of this Agreement, and the other party retains counsel to assist in enforcing the terms thereof, the parties hereby agree that the breaching party will pay ail reasonable attorneys' fees, court costs, and expenses incurred by the other party in enforcing the Agreement. O. ADDITIONAL MATTERS- Husband will give Wife a total of three thousand ($3,000.00) dollars towards the purchase of a new home (two thousand ($2,000.00) dollars of this amount has already been given to her). In November of 2002, Husband will give wife four hundred ($400.00) dollars from his Christmas savings. Husband will keep his State Life Insurance policy in effect as long as the five hundred seventeen dollars forty one cent ($517.41) car payment on 'the Honda. IN WITNESS WItEREOF, and intending to be bound hereby, the parties have signed and sealed this Agreement on the P~{~ day of ~tl. qt~ 6//~ , 2002, at Harrisburg, Pennsylvania. h~/arlies Trimbu~ -10- J. NO WAIVER OF DEFAULT- This Agreement shall remain in full force and effect unless and until terminated under and pursuant to the terms of this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall in no way affect the fight of such party hereafter Io enforce the same, nor shall the waiver of any br~ach of any provision hereof be construed as a waiver of any subsequent default of the same or similar nature, nor shall it be construed as a waiver of strict performance of any other obligations herein. K. HEADINGS NOT PART OF AGREEMENT- Any heading preceding the text of the several paragraphs and subparagraphs hereof are inserted solely for convenience or reference and shall not constitute a part of this Agreement nor shall they affect its meaning, construction, or effect. L. ADDRESS OF PARTIES- Each party shall at all times keep the other informed of his or her place of residence, and shall promptly notify the other of any change, giving the address of the new place of residence. M. WAIVER OF CLAIMS AGAINST ESTATES- Except as herein otherwise provided, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she may have or hereafter acquire, under the present or future laws of Pennsylvania or another jurisdiction, to share in the property or the estate of the other as a result of the marital relationship, including, without limitation, dower, curtesy, their statutory equivalents, widow's allowance, homestead rights, r~ght to take in intestacy, fight to take against the will of other, and right to act as administrator or executor of the other's estate, and each party will, at the request of the other, execute, acknowledge, and deliver any and all instruments which may be necessary or -9- COMMONWEALTH OF PENNSYLVANIA : COUNTY OF DAUPHIN : SS On this the ~ day of ~ 1:~,5 ~ ,2002, before me the undersigned officer, personally appeared Gregory Trimbur, satisfactorily proven to be the person whose name is subscribed to the within document and acknowledge that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto~s~ny hand and official seal. -11- COMMONWEALTH OF PENNSYLVANIA : COUNTY OF DAUPHIN : SS On this the \ day of ~-L~Ov ,2002, before me the undersigned officer, personally appeared Marlies Trimbur, satisfactorily proven to be the person whose name is subscribed to the within document and acknowledge that she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. -12- GREGORY R. TRIMBUR MARLIES G. TRIMBUR VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NO., 02-3435 CIVIL TERM To the Prothonotary: PRAECIPE TO TRANSMIT RE:CORD Transmit the record, together with the following information to the court for entry of a divorce decree: 1. Ground for divorce: Irretrievable breakdown under §3301 (c) (Strike out inapplicable section). 2. Date and manner of service of the complaint: JULY 20, 2002 BY PERSONAL SERVICE Complete either paragraph (a) or (b). (a) Date of execution of the affidavit of consent required by §3301 (c) of the Divorce Code: by plaintiff 1 1 / 3 / 0 2 ; by defendant 1 1 / 3 / 0 2 (b) (1) Date of execution of the affidavit required by §3301 ,Id) of the Divorce Code: (2) Date of filing and service of the plaintiff's affidawit upon the respondent: Related claims pending: NONE 5. Complete either (a) or (b). (a) Date and manner of service of the notice of intention to file praecipe to transmit record, a copy of which is attached: 1/20/03 VIA FIRST CLASS MAIL (b) Date of plaintiff's Waiver of Notice in §3301 (c) Divorce was filed with the Prothonotary: 1 1 / 22/02 Date defendant's Waiver of Notice in §3301 (c) Divorce was filed with the Prothonotary: 1 1 / 22 / 02 ~/ A~,rney for Plaintif~D~fendant '~,,, CERTIFICATE OF SERVICE I hereby certify that I caused a tree and correct copy of the attached to be served by United States mail, this-~(~day of January 2003, upon the tbllowing: Gregory R. Trimbur 425 Bernheisel Road Carlisle, PA 17013 Marlies G. Trimbur 425 Bernheisel Road Carlisle, PA 17013 20033 1 IN THE COURT OF COMMON Of CUMBERLAND COUNTY STATE OF PENNA. GREGORY R. TRIMBUR PLEAS NO. 02-3435 VERSUS MARLIES G. TRIMBUR DECREE In AND NOW, DECREED THAT MARLIES AND ;to ?t4 IT IS ORDERED AND GREGORY R. IBUR , PLAINTIFF, G. TRIMBUR ARE DIVORCED FROM THE BONDS OF MATRIMONY. DEFENDANT, THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE BEEN rAISED Of RECORD IN THIS ACTION FOR WHICh A FINAL ORDER HAS NOT YET BEEN ENTERED; NOT APPLICABLE BY THE COURT-