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HomeMy WebLinkAbout94-07068 S6L~'LS9 (LlD 60 l L l" 'v'INV ^lASNN3d 'e>~neSI~RJ'v'H i . 3.I\I~a ~3N30S 6l0l S3:':>1~~O MV1 A3WQ . - .~. ... . ~ B ~ ,.. ~ fa ~ ~~~ ~!U ~~r r, ..0 0 F:' -.I ." .,. , ,.,. c;:f --., L' ;' ;0 . :,;Ii j , i. , '~ (:>J ., -' .k: , ",:': . . -, "'1 J,> ,., 'J:I' . ~:-l ) ~ '..In .. --t -.! :::> ). :.u .. ...J H;; . , , ~_~_~*_~~__~__~_____t~______~~~ e -~ ~___,~~____~v~___'_ - ~ M ... 8 8 ~ i!l 8 8 8 8 8 .. " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF * PENNA. Plaintiff 'I Ncl,.......94 - .Jq.~~.... CAROL B. CARTER, i!l V('I':;II:-1 i!l .. " i!l $ i!l JOHN B. CARTER, Defendant ~ DECREE IN 8 DIVORCE ~ i!l ~ : AND NOW, . , , ,~,'l.?--.? . , .. . , , . . , '. 19 ~l1.. it Is ordered and i!l N ~ ~ decreed that .""""" ,,~~\~.q~, ~,."<;~~:r,E;~,, " "" ,," "" ". plaintiff, ~ ~ and.,,,,.,,,.,,,,,, ,J,QIjI;, 13.., ,eM,']:!::\{""".."""""",,,,. defendant, . ~ are divorced from the bonds of matrimony. The terms of the Marriage : iii Settlelllmt Agreenent entered into by the parties on April 14, 1997, are ~: : incorp,grated herein. ~ ~ 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 .. S been entered; " ..' ~ ~ .l~?n.~ , , , , , . , . . , . . . . . . , , , , , , , . , , . , , . , , , , , . . , , . . , , , . . , . . . . . . . . , , . . , , . . , , . . , . ~ i!l .~ ..... ~ """,,,,,,.,,...,,,,,,,,,,,,, """",,,,,,,,,.",,,, : n\~""/;fl : tiI ^lIe'I'A'U.:;~ ~ ~..~ J. ~ ~ K~~~ra' K / .k4d.". . il? ':? . : ~ .f n Prothonotnry : ~ ._____._'____ ___.<. ...._. ".M.' . ".. .. . . ,~ .>>:- ... ,.. .:.:. .:.:. ->>:- -:+:. '.' .:.:. .:.:. .:t-:. .:+:. .:.:- .:+;. .:+:. .:+:. .:+:. .:+:. .:+:. .:+:. .:.:.' .:+:. '.:.:.' ::.:. '.:.:: ',:+;.' .:+:. ~:.:. .:+:. .:+:,' .. " . 8 8 ~ 8 8 ~ 8 8 8 8 ~ 8 8 Iii ,. ,I 3. MUTUAL RELEASE Subject 10 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, administmtors, 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 Ihe other, except any or all cause or causes of action for divorce. 4, FULL DISCLOSURE 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 Ihe other of all 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. Husband acknowledges that he was represented by KatWeen Carey Daley, Esquire, in reaching this Agreement, and Wife acknowledges that she was represented by Keith B, DeArmond, Esquire, in reaching this Agreement. Both parties represent that the terms of this Agreement have been fully explained to them by their respective counsel. 2 5, EOUITABLE DIVISION By this Agreement, the panies have intended to effect an equitable division of their marital property, This division is not intended by the panies to constitute in any way a sale or exchange of assets. 6, SUBSEOUENT DIVORCE A, AGREEMENT NOT PREDICATED ON DIVORCE - II is specifically understood and agreed by and between the panies 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 non-defense of any action for divorce; provided, however, that nothing contained in this Agreement shall prevent or preclude either of the parties hereto from 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, mayor 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 3 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 financialtenns oflhis 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 enforcemenl 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 ofa decree in divorce pursuant to 23 Pa.C,SA Section 330I(c). Accordingly, both parties agree to forthwith execute such consents, affidavits, or other documents and to direct their respective attorneys to forthwith 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 penniued by iaw and the applicable Rules of Civil Procedure, the named defendant in such divorce action shall execute any waivers of notice or other waivers necessary to expedite such divorce. 4 13. PENSION PROGRAM The parties agree that they have each acquired pension benefits through retirement plans, savings and thrift plan9, IRA's and other retirement savings plans. In consideration of the mutual promises set forth in this Agreement, Husband agrees to transfer all right, title and interest in the total value of his FAA Thrift Savings Plan and his Fidelity Investment IRA account to Wife incident to a Qualified Domestic Relations Order or other order as the Court shall direct. This transfer shall deposit the funds in an IRA account at the direction of Wife. This transfer shall be made in such a way to be a non-taxable event for federal income tax purposes. In addition, the parties agree that the Husband's federal pension benefit would increase in its present value in the event that Husband chose to relire at age fifty-five (55), rather than age sixty (60), as contemplated in this financial seulement. Because of the uncertainty of Husband's retirement plans, the parties agree that if Husband retires at anytime between ages fifty-five (55) and age sixty (60), Wife shall receive from Husband's monthly pension benefit the sum of$667.00 per month for each month that he relires prior to age sixty (60). These payments shall be made in a monthly amount of not less than 5350.00 per month by the 5th day of the month. As an example, if Husband were to retire at age 58 (24 months prior to age 60), he would owe Wife $667,00 x 24 or $16,008,00. He would pay these sums to Wife at the minimum rate of$350,00 per month for 45.74 months until the obligation was paid in full. In the event that Husband were to die prior to this benefit being paid in full, Husband's estate would pay the balance then remaining due as a debt of his estate, 7 This payment provision recognizes that Husband may have limited income as the result of any early retirement, Husband shall reserve the right to accelerate the payments in the event that he possesses the ability to do so, All payments shall be income to Wife and deductible to Husband. Except as provided above, the parties agree and acknowledge that each party shall maintain sole ownership over his or her individual pension plans acquired as the re3ult of contributions by his or her employer. Husband shall have sole ownership of his pension acquired as the result of his federal government service and Wife shall have sole ownership of her pension acquired as the result of her service with the Laborers' International Union of North America. In addition, Wife shall maintain ownership of her IRA account which has an approximate balance of $2,800,00, All interest in the Fidelity annuity shall be released to Wife in total and Husband will execute any and all documents to effectuate this transfer including a Qualified Domestic Relations Order if so required, 14, MISCELLANEOUS All assets including, but not limited to, 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 parties acknowledge that they were the owners of real property located at 601 Alison Avenue, Mechanicsburg, PelUlSylvania 17055, at the time of separation. This property has been sold and the proceeds have been divided equally between Husband and Wife, The parties agree to 8 cooperate in the filing of their federal income tax returns for the purpose of declaring the gain on this property and to allocate the gain and resultant tax liability equally between Husband and Wife. It is anticipated that this gain will be protected Irom federal income tax liability as the result of Husband and Wife each acquiring separate residences. The parties believe and agree, and have been so advised by their respective attorneys, 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 wilh the position set forth in the preceding sentence on his or her federal or state income lax 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 hannless 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 detennined to be the cause of the misrepresentations or failures to disclose Ihe nature and extent of his or her separate income on the aforesaid joint returns. 9 shall be divided equally between Husband and Wife. Husband and Wife shall have input and approval of an institution of higher learning, said approval shall not be unreasonably withheld, The parties acknowledge that they have acquired pre-paid college credits which shall be used by Stephen], Carter for his college expenses. The current balance of said credits shall be allocated equally between Husband and Wife, Any future payments under this plan shall be credited to the party acquiring the credits in satisfaction of his or her liability hereunder. B. Extraordinary Medical Expenses - All extraordinary medical expenses (those not covered by insurance) shall be split equally by Husband and Wife. Husband agrees to reimburse these expenses to Wife on a quarterly basis upon Wife supplying to Husband proof of said expenses, C, Estates - Husband and Wife both agree and acknowledge that they have financial responsibility toward the support of their minor child. In considering that obligation, Husband and Wife agree as follows: 1. Husband agrees to provide a death benefit of $100,000.00 in life insurance made payable at his death for the benefit of his minor child. This benefit shall be made payable in such a way that income and principle may be used for the support ofthe child through his minority and shall be distributed to him at his majority or at a later date, as determined in the sole discretion of Husband. 11 Wife agrees to provide a death benefit of$100,OOO.00 in life insurance made payable at her death for the benefit of her minor child. This benefit shall be made payable in such a way that income and principle may be used for the support of the child through his minority and shall be distributed to him at his majority or at a later date, as detennined in the sole discretion of Wife, 18, 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 them 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 hereafter incur any liability whatsoever for which the estate of the other may be liable. 12 C, SEVERABILITY - Ifany tenn, 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 anyone or more of the paragraphs herein, with the exception of the satisfaction of the conditions prcce<lent, shall in no way void or alter the remaining obligations of the parties. D. OTHER DOCUMENTATION - Wife and Husband 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 effectuation of this Agreement, and as their respective counsel shall mutually agree should be so executed in order to carry out fully and effectively the terms of this Agreement. 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. 13 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. 1. BINDING EFFECT - Except as otherwise stated herein, this Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and assigns. ], NO WAIVER OF DEFAULT - This Agreement shall remain in full force and effect unless and until tenninated 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 right of such party hereafter to enforce the same, nor shall the waiver of any breach 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. 14 .' 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 until all obligations under this agreement have been satisfied, 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, right to take in intestacy, right to take against the win 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 advisable to carry into effect this mutual waiver and relinquishment of all such interests, rights and claims, N, A TIORNEY'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 all reasonable attorneys' fees, court costs, and expenses incurred by the other party in enforcing the Agreement. 15 '- Ul f,.: c; ., ,- .' 111~' I -' Cl- .> ti'-. ..... 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CAROL B, CARTER, plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, NO, 94-7068 JOHN B, CARTER, Defendant ORnE!\. I AND NOW, this"'2.J:\.. day of . . ~ ,1997, upon the \ consideration of the Stipulation for Entry of Qualified Relations Order, this Court finds as follows: 1. The above-named parties are husband and wife and have asked this Court, in accordance with a Marriage Settlement Agreement negotiated between the parties, to enter into a Qualified Domestic Relations Order pursuant to ~408(d) (6) of the United States Internal Revenue Code. 2. The Defendant, John B. Carter, is a participant in an employee savings and thrift plan through his employer, which is entitled the "FAA Thrift Savings Plan" (hereinafter referred to as the "Plan"), i~ which he had vested benefits at the time of the separation of the parties with a value of $31,116.87. 3. The Defendant herein, John B, Carter, is the Plan participant in said Plan and his address is 202 West Keller Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. 4. The alternate payee under this Order shall be the Plaintiff, Carol B, Carter, whose address is 521 Lexington Avenue, Mechanicsburg, CUmberland County, Pennsylvania 17055. 5. The Trustee of the Plan is the united States Department of Transportation. 6. The Plaintiff and Defendant have agreed that the SAlOIS, GUIDO, SHUFF & MAS LAND 26 W,lIIgh SUUI Carlllle. PA Defendant shall transfer, from his account within the Plan, and into a self-directed individual retirement account in the name of Plaintiff, as a tax free rollover transfer pursuant to a Qualified Domestic Relations Order entered in this divorce action, the sum of $31,116,87 from his interest in the Plan, and the parties wish to have a Qualified Domestic Relations Order entered to accomplish such transfer in accordance with the Internal Revenue Code of the United States and the parties have further agreed that, in the event there is any income tax liability, penalty, or interest, imposed upon either of the parties as a result of such transfer, that the Plaintiff, Carol B. Carter, shall be responsible to pay same and to indemnify the Defendant, John B. Carter, from the same. NOW, THEREFORE, based upon the above findings, the stipulation of the parties and their counsel, and the domestic law of the Commonwealth of Pennsylvania, it is hereby Ordered and Decreed as follows: 1. Trustee shall, within thirty (30) days of the date of this Order, withdraw from the Defendant's account within the Plan and pay over to and deliver to the Plaintiff the sum of $31,116.87, 2. The Plaintiff, Carol B. Carter, shall promptly deposit, within thirty (30) days of the date of her receipt of it, into an individual retirement account opened and maintained by her and for her benefit, the sums received from the Trustee. 3. The Plaintiff thereafter shall hold the funds and SAIDIS, GUIDO, SnUFF & MAS LAND 26 W, High SUUI Carll.le, PA CAROL B. CARTER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, NO. 94-7068 JOHN B. CARTER, Defendant MOTION AND STIPULATION The parties hereto, by their respective counsel, do hereby stipulate as follows: 1. The Plaintiff and Defendant are parties to the above- captioned divorce action. 2. ' The parties have entered into a Marriage Settlement Agreement dated April 14, 1997, for the full and final resolution of all economic claims between them, including equitable distribution, alimony, alimony pendente lite, counsel fees and costs, and the like. As part of the property settlement, Defendant has agreed to transfer all right, title and interest in the total value of his FAA Thrift Savings Plan ("the Plan") to the Plaintiff, Carol B. Carter, for the sole benefit of the Plaintiff, as a tax free "rollover", the sum of $31,116.87 from the account of the Defendant, John B. Carter, in said Plan. 3. Plaintiff shall not create or effect any transaction which would disqualify the Plan or any portion thereof or contribution thereto, or render taxable to Defendant, the rollover transfer of any portion thereof. Plaintiff shall otherwise comply fully with the Internal Revenue Code and the regulations duly promulgated pursuant thereto, including without limitation, ~414(p) (4) (A) (i) of the Internal Revenue Code, as amended, which prohibits transferring the rollover funds to Plaintiff until i7: .:>' ;>- '. ..J ~-'; (j, -,i. UJr~ , ~(' :::: " E".. o<.! ~I l.:J _or - l ~ , tf.. <--.I tEl'-1 ~~ "'1 ,h. f.: . IL r- '5 U C1' U