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HomeMy WebLinkAbout95-01869 . M " ~ 8 8 . ~ ~ 8 . ~ ~ ~-- ,':I':' '.. ':<<0 ... ':<<0 ,:.c, '.. '.. ...... '.... ,:iW ':c' ':c' ':.c- ':.:' ':.c- ':c' ':.:- ':tt:,,~,:,:IIC'~:'lIO(''';>'''';,,'',:IIC' ... _:..O~ $ ~ - -- . 8 8 : IN THE COURT OF COMMON PLEAS : 8 OF CUMBERLAND COUNTY ~ . .. : STATE OF '* PENNA. : , 8 M ' , DOROTHY J. MYERS!i i!I 8 8 . N ()...1~,6.?..,....,.." ........,..,.., 1<) 95 i!I Plaintiff, 8 8 V~n". _ $ ,ROBEl{T K. MYERS, , ,..; .. $ Defendant ,: 8 S M ~; ,~ 8 a S DECREE IN 8 8 DIVORCE ~ 8 ~ ~ ! AND NOW, .. ..~ .." , ,,"!-.C...., .., 19 ,?L" it is ordered and 8 8 D h J M i!I,::',' .:. decreed that ....."" ~~~~, ~" : ,,~~~~.., , " .. .. .. , .. .. , , .. .. .., plaintiff, ~ ~ .:. and, , ., , , , , , . ~?~~,r,t, 1<", ,My,e,r,s., , .. , , , " . , , , " " . , , , . , " , , ., , " defendant, . ~ ~ ~ are divorced from the bonds of matrimony. ~ , The court retains jurisdiction of the following claims which have been raised of rec~~d in this action for which a final order has not yet been entered; WOl\.R. ~ 8 8 8 The terms of the Separation and Property Settlement Agreement between the ""',.,',....,.,",.,',.,"",.,.,",.,',.".,""':'..)"'.""""".'. pAr,tie.s. ,dn.te.d June I" ,1.9,9,5. ,in ,he.teby. ,Incotpotated 'llS~',sOt', forth ,at ,length but I . shllll not merge In the final Divorce Decree between tho,'pllrtles. Oy \I~;',t: ( , A".."~,,Ju.~~J #I. 8~ J.. Ljlt'~ . ~ tC'~/t.~. W J<6j,.' Y:;1Z/~~J:~/}/ ~.tb'.JJ~ :7 . ~ .7' P?:.I.d?olnry " ~ ',' ~ .- " ~ ~ .~ ~ .~ :, ",.*,~-::.;.'::.;.-:i.- ::.:,-,:.:, .:.;, ':.:,.:.:' .:.:. '.:.:,',:.;. ',:+:, ::.:,-,:+:: .=-:. ':.:' ,:.:,' .:.:, ,:~f . ~ . SEPARATION AND PROPERTY SE7TLEMENT AGREEMENT THIS AGREEMENT, made this r day of JJN~ , 1995, by and between Dorothy J. Myers, hereinafter referred to as "Wife", and Robert K. Myers, hereinafter referred to as "Husband". WITNESSETH: WHEREAS, Husband and Wife were lawfully married on October 18, 1972; and WHEREAS, two children were born of this marriage; and WHEREAS, certain differences have arisen between the parties as a result of which they separated in 1992 and now live separate and apart from one another, and are desirous, therefor'l, of entering into an Agreement which will distribute their marital property in a maMer which is considered to be an equitable division of all joint property, and will provide for the mutual responsibilities and rights growing out of the marriage relationship; and WHEREAS, there has been a complete disclosure of the earnings and property of each party, and each understands his/her rights under the Divorce Code of the Commonwealth of Pennsylvania; and WHEREAS, the parties hereto, after being properly advised by their respective counsel, Husband by his attorney, Richard D, Druby and Wife by her attorney, John W. Purcell, Jr. have come to the agreement, which follows: NOW, THEREFORE, in consideration of the above recitals and the following covenants and promises mutually made and mutually to be kept, the parties heretofore, intending to be legally bound, covenant, promise and agree as follows: 1, Separation. It shall be lawful for e3ch party at all times hereafter to live separate and apart from the other party at such place that he or she may from time to time choose or deem fit. The f " . Sepal'llllon and Property SeUlemenl Agreemenl Page 2 foregoing provision shall not be taken as an admission on the part of either party of the lawfulness of the causes leading to their living apart, 2, Interference. Each party shall be free from interference, authority and contact by the olher, as fully as if he or she were single and unmarried, except as may be necessary to carry out the provisions of this Agreement, Neither party shall molest the other nor attempl to endeavor to molest the other, nor compel the other to cohabit with the other, nor in any way harass or malign the other, nor in any way interfere with the peaceful existence, separate and apart from the other, 3, Wife's Debts. Wife represents and warrants to Husband that since the separation she has not and in the future she will not contract or incur any debt or liability for which Husband or his estate might be responsible and shall indemnify and save Husband hannless from any and all claims or demands made against him by reason of debts or Obligations incurred by her, 4. Husband's Debts. Husband represents and warrants to Wife that since the separation he has not and in the future he will not contract or incur any debt or liability for which Wife or her estate might be responsible and shall indemnify and save Wife hannless from any and all claims or demands made against her by reason of debts or obligations incurred by him. 5. Outstanding Joint Debts. The parties acknowledge and agree that they have no outstanding debts and obligations incurred prior to the signing of this Agreement, except as follows: None In the event that either party contracted or incurred any debts since the date of separation, the party who incurred said debt shall be responsible for the payment thereof, regardless of the name in which the account may have been charged, and such party shall indemnify, defend and hold the other party hannless from any claim or demand made against that party by reason of such debt, 6, Equitable Distribution of Marital Property. The parties have attempted to distribute their marital property in a manner which confonns to the criteria set forth in ~3501 et. seq. of the Pennsylvania Divorce Code and taking into account the following considerations: the length of marriage; the fact that it is the first marriage for Husband and Wife; the age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; the contribution of each party to the education, training or increased earning power of the other party; the opportunity of each party for fulure acquisitions of capital assets and income; the sources of income of both parties, including but notlimiled to medical, retirement, insurance or other f Sepentlon and Property Settlement Allreement Paac3 benefits: the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of each spouse as a homemaker; the value of the property set apart to each party; the standard of living of the parties established during the marriage; and the economic circumstances of each party at the time the division of property is to become effective. The division of existing marital property is not intended by the parties to constitute in any way a sale or exchange of assets, and the division of being effected without the introduction of outside funds or other property not constituting marital property, The division of property under this Agreement shall be in full satisfaction of all marital rights of the parties, A, Distribution of Personal Property. The parties hereto mutually agree that they have effected a satisfactory division of the furniture, household furnishings, appliances, and other household personal property between them, and they mutually agree that each party shall from and after the date hereof be the sole and separate owner of all such tangible personal property presently in his or her possession, and this Agreement shall have the effect of an assignment or bill of sale from each party to the other for such property as may be in the individual possession of each of the parties hereto, The parties hereto have divided between themselves, to their mutual satisfaction, all items of tangible and intangible marital property, Neither party shall make any claim to any such items of marital property, or of the separate personal property of either party, which are now in the possession and/or under the control of the other. Should it become necessary, the parties each agree to sign, upon request, any titles or documents necessary to give effect to this paragraph. Property shall be deemed to be in the possession or under the control of either party if, in the case of tangible personal property, the item is physically in the possession or control of the party at the time of the signing of this Agreement and, in the case of intangible personal property, if any physical or written evidence of ownership, such as passbook, checkbook, policy or certificate of insurance or other similar writing is in the possession or control of the party, Husband and Wife shall each be deemed to be in the possession and control of their own individual pension or other employee benefit plans or retirement benefits of any nature to which either party may have a vested or contingent right or interest at the time of the signing of this Agreement, and neither will make any claim against the other for any interest in such benefits, except as stated herein, .-.. -',- .-.. . -.. , f Separation and Propel1y Selllnnenl Aareemenl Page 4 From and after the date of the signing of this Agreement, both parties shall have complete freedom of disposition as to their 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, B, Distribution of Real Estate. Husband shall transfer to Wife concurrent with the execution of this Agreement, all of his interest in and title to their joinlly owned real estate at 8 East Manor Avenue, Enola, Cumberland County, Pennsylvania in exchange for which Wife agrees to be solely responsible for the mortgage obligation to Fleet Mortgage as well as for the payment of all current and fU,ture taxes. insurance and utility bills relative to said real estate. Wife covenants and agrees to pay and discharge said obligations on said premises, and agrees to indemnify Husband from any loss by reason of her default in the payment thereof, and agrees to save Husband hannless from any future liability with regard thereto, Wife shall make best efforts to refinance the first mortgage obligation to Fleet Mortgage, and have Husband's liability removed as to the same, Husband shall refinance the second mortgage obligation to Belco, and remove Wife's name from the same. Husband covenants and agrees to pay and discharge said second mortgage obligation to Beleo. and agrees to indemnify Wife from any loss by reason of his default, and the payment thereof. and agrees to save Wife hannless from any future liability with regard thereto, 7. Vehicles. Notwithstanding Paragraph 6 of this Agreement. Husband shall relain possession and ownership of the 1991 Toyota Truck and 1929 Mercedes Benz car kit, and the 1980 Honda 400 Twin Motorcycle presenlly in his possession, Wife hereby transfers all of her right, title and interest in said vehicle to Husband, in consideration thereof, Husband shall assume full responsibility for payment and eventual satisfaction of any and all liens presently encumbering the vehicle, and to indemnify, defend and hold Wife hannless for the same, Wife hereby agrees to sign any title or other documents necessary to transfer ownership of said vehicle at any time, upon demand. and further shall indemnify Husband for any costs, including actual counsel fees, incurred by Husband to enforce this provision, "'- --- --..~. ~_ ,.. ..... 0..." ___.. t - Scperatlon Ind Proper1y Sdlltfllcnl Aarttmcnl Pase , Notwithstanding Paragraph 6 of this Agreement, Wife shall relain possession and ownership of the 1988 Dodge Van presenlly in her possession. Husband hereby lransfers all of his righI, tille and interest in said vehicle to Wife, In consideration thereof, Wife shall assume full responsibility for payment and evenlual satisfaction of any and all liens presently encumbering lhe vehicle, and to indemnify, defend and hold Husband hannless for lhe same, Husband hereby agrees to sign any title or other documenrs necessary 10 transfer ownership of said vehicle at any lime, upon demand, and further shall indemnify Wife for any costs, including actual counsel fees, incurred by Wife to enforce this provision, 8, Alimony, Both parties acknowledge and agree that the provisions of this Agreement providing for equitable distribution of marital property are fair, adequate and satisfactory to them, and are accepted by them in lieu of and in full and final settlement and satisfaction of any claims or demands lhat either may now or hereafter have against the other for support, maintenance or alimony. Husband and Wife further, volunrarily and intelligently, waive and relinquish any right to seek from the other any payment for support or alimony, Each party shall indemnify, defend and hold the other hannless against any future action for either support or alimony brought by or on behalf of the other, such indemnity to include the actual counsel fees of the defendant in auy such future action. 9, Custody. Custody of the parties' minor children, James Robert, born February 18,m 1978 and Johnathian Richard, born September 18, 1981, shall remain Wilh Wife, subject to Husband having temporary custody for purposes of visitation, at such dates and times as the parties may from time to time mutually agree upon, 10, Life Insurance. Husballd presently is the owner of a certain life insurance polley with the Bankers Securily Life Insurance Society haVing a face amount of $100,000,00 of insurance, Husband agrees to continue to make the payments on the insurance, and shall designate his minor children as irrevocable beneficiaries for a minimal amount of $50,000,00 of insurance, for so long as he is required to support said children, 11. Alimony Pendente Lite, Counsel Fees and Expenses. Husband and Wife acknowledge and agree that lhe provisions of lhis Agreement providing for lhe equitable distribution of marital property of lhe parties is fair, adequale and salisfactory to lhem, Both parties shall accept the provisions set forth in this Agreement in lieu of and in full and final settlement and satisfaction of all claims and demands that either may now or hereafter have against the other for alimony i. ;; . " , , t'H i I f Separation and Propeny Selllemenl ^areemenl Page 6 pendente lite, counsel fees or expenses, or any other provision for their support and maintenance before, during and after the commencement of any proceedings for divorce or annulment between the parties, Each party shall be responsible for his or her own counsel fees, and each agrees to indemnify, defend and save the other hannless from any action commenced against the other for alimony pendente lite, counsel fees and/or expenses, 12. Divorce. A Complaint in Divorce has been filed to No, 1995-1869 in the Court of Common Pleas of Cumberland County, Pennsylvania, and either party shall be free to proceed without funher delay to secure the divorce, Both parties shall sign an Affidavit evidencing their consent to the divorce, pursuant to fi3301(c) of the Divorce Code, In the event, for whatever reason, either party fails or refuses to execute such affidavit upon the other party's timely request, that party shall indemnify, defend and hold the other hannless from any and all additional expenses, including actual counsel fees reSUlting from any action brought to compel the refusing party to consent. Each party hereby agrees that a legal or equitable action may be brought to compel him or her to execute a Consent fonn and that, absent some breach of this Agreement by the proceeding party, there shall be no defense to such action asserted, 13, Time of Distribution, The assets and Interests to be transferred under and pursuant to this Agreement sha1\ be conveyed and transferred to the respective parties immediately upon the execution of this Agreement. A1\ spousal support and other such obligations, including alimony, sha1\ immediately tenninate. The parties shall cooperate by executing whatever documents are necessary to effectuate a divorce under fi3301(c) or fi3301(d) of the Pennsylvania Divorce Code, and this Agreement to cooperate sha1\ be enforceable by an assumpsit action for specific perfonnance. However, upon refusal to consent, a1\ distributed property shall be returned to the party originally in possession, until the time of final Decree, 14, 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, administralors and assigns, release, indemnify (including actual legal fees) and discharge the other of and from all causes of action, claims, rights, or demands, whatsoever In law or equity, including equitable distribulion, spousal support, alimony, counsel fees, alimony pendente Iile. and expenses which either of the parties against the other ever hac.!, now has, or may have in the fulure under lhe Pennsylvania Divorce Code. as amended, or under any other statutory or . Separallon and Property Settlement Agreement Page 7 common law with respect 10 the divorce, except any and all causes of action for divorce and all causes of action for breach of any provisions of this Agreement, Each pany also waives his or her right to request marital counseling, pursuant to ~3302 of the Divorce Code. IS. Waivers 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 now have or hereafter acquire under the present or future laws of any jurisdiction, to share in the property or the estate of the other as a result of the marital relationship, including without limitation, dower, curtesy, SlalUlory allowance, widow's allowance, right to take in intestacy, right to take against the Will of the other, and right to act as administrator or executor of the other's estate, and any right existing now or in the future under the Pennsylvania Divorce Code, as amended from time to time, and each 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, 16. Rights on Execution. Immediately upon the execution of this Agreement, the rights of each party against the other, despite their continuing marital status, shalltenuinate and be as if they were never married, 17, Breach. In the event of breach of any of the tenus of this Agreement, the nonbreaching party shall be paid, as part of any award or judgment against the breaching party, all costs, including actual counsel fees paid to his or her allomey, 18, Incorporation In Final Divorce, The tenus of this Agreement shall be incorporated but shall not merge in the linal divorce decree between the parties, This Agreement shall survive In its entirety resolving the spousal support, alimony, property and other inlerests and rights of the parties under and pursuant to the Divorce Code of the Commonwealth of Pennsylvania, This Agreement may be enforced independently of any support order, divorce decree or judgment and its tenus shall talce precedence over same, remaining the primary obligation of each party, This Agreement shall remain in full force and effect regardless of any change in the marital status of the parties, It is warranted. covenanted and represented by Husband and Wife, each to the olher, that this Agreement is lawful and enforceable and this warranty, covenant and representation is made for the specific purpose of inducing the parties to execute the Agreement. ., 0.. ..~_. f Sepanllon Ind Property Sdtlemenl Allreemenl Page 8 19. Additional Instruments. Each of Ihe parties shall from lime 10 time, at the request of the other, execute, acknowledge and deliver to the other party, any and all further instruments that may be reasonably required to give full force and effect to the provisions of this Agreement, 20. Separability. In case any provision of this Agreement should be held to be contrary to, or invalid under, the law of any country, state or other jurisdiction, such illegality and invalidity shall not in any way affect the other provisions hereof, all of which shall continue, nevertheless, in full force and effect, and each paragraph herein shall be deemed to be a separate and undisputed covenant and agreement. 21. Entire Agreement. This Agreement contains the entire understanding of the parties and there are no representations, warranties, covenants and undertakings other than those expressly set forth herein, Husband and Wife acknowledge and agree that the provisions of this Agreement with respect to the distribution and division of marital and separate property are fair, equitable and satisfactory to them, based on the length of their marriage and other relevant factors which have been taken into consideration by the parties. Both parties hereby accept the provisions of this Agreement with respect to the division of property in lieu of and in full and final settlement and satisfaction of all claims and demands that they may now have or hereafter have against the other for equitable distribution of their property by any Court of competent jurisdiction pursuant to Section 3502 of the Divorce code or any other laws, Husband and wife each voluntarily and intelligently waive and relinquish any right to seek a Court ordered detennination and distribution of marital property, but nothing herein contained shall constitute a waiver by either party of any rights to seek the relief of any court for the purpose of enforcing the pruvisions of this Agreement. 22. Modification and Waiver. A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same fonnality as this Agreement, The failure of either party to insist upon strict perfonnance of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature, 23, Intent. It is the intent of the parties by this Agreement to fully and finally foreclose any resort to the Courts for relief on the basis of any statute or case law presently existing or which may exist at some time in the future within the Commonwealth of Pennsylvania, including but not limited to equitable distribution, alimony and other relief under the Pennsylvania Divorce Code, as amended, This Agreement has been drafted and accepted on the basis that such resort would . Sepanllon and Property Settlement Allreement Page 9 constitute a breach under this Agreement, entitling the nonbreaching party to reimbursement for actual counsel fees. Other than as provided by the tenns of this instrument, it is intended that the Court shall treat the parties as if they had never entered into a marital relationship. This Agreement shall be interpreted and governed by the laws of the Commonwealth of Pennsylvania and, where such law is inconsistent, the tenns of this instrument shall govern, 24. Voluntary Execution. The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel, and each party acknowledges that the Agreement is fair and equitable, that it is being entered into voluntarily, with full knowledge of the assets of both parties, and that it is not the result of any duress or undue influence. The parties acknowledge that they have been furnished with all infonnation relating to the financial affairs of the other which has been requested by each of them or by their respective counsel. 25, Descriptive Headings. The descriptive headings used herein are for convenience only. They shall have no effect whatsoever in detennining the rights or obligations of the parties. 26. Agreement Binding on Heirs. This Agreement shall be binding and shall inure to the benefit of the parties hereto, and their respective heirs, executors, administrators, successors and assigns, 27. Reconc11lation. Notwithstanding a reconciliation between the parties, thi~ Agreement shall continue to remain in full force and effect absent a writing signed by the parties stating that this Agreement is null and void, IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first above written, WITNESS: DOROTHY J, MYERS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO, 1995~1B69 VS, ROBERT K. MYERS, Defendant CIVIL ACTION.LAW IN DIVORCE PRAECIPE TO TRANSMIT RECORD THE PROTHONOTARY: Transmit the record, together with the following infonnation, to the Court for entry of a Divorce Decree: 1. Ground for divorce: Irretrievable breakdown under Section (X) 3301(c) () 3301(d)(1) of the Divorce Code. 2, Date and manner of service of the Complaint: Certified Mall on April 18, 1995 3, (Complete either paragraphs (a) or (b), (a) Date of execution of the Affidavit of Consent required by Section 3301(c) of the Divorce Code: by Plaintiff: July 12, 1995 by Defendant: July 12, 1995 (b) (1) Date of execution of the Plaintiff's Affidavit required by Section 3301(d) of the Divorce Code: (2) date of service of the Plaintiff's Affidavit upon the Defendant: 4. Related claims penuing: None. 5. Date and manner of service of the notice of intention to file Praecipe 10 transmit record, a copy of which is attached, if the decree is to he entered under section 3301(d)(1) of the Divorce Code, N/A ~ ll"> ;n = --< _:t" .:r 2 "" a'..: ,~ ~ ,,-, " '. \ . k' ,;..-, ,', "l '" '1, ('(,1 --- ::)- ,\r') '0 '-- , f'- -'V -~ \.n _~,..J \ '-' ......' , ,(' "") ... ~ ~ ... " .... <l " .. ~ . <l '" "'.... <l ~ . 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