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HomeMy WebLinkAbout95-01960 . ' , ~*...~~-~~_......_------~~~---~-~~~~ ~ ,- -I_ 8 ~ ~ 8 ~ 8 $ ~ 8 8 ~ .... . ~ ~ $ 8 , ~ . 8 - . .. . - , ~ . ~ ~ ~ ~ , 8, ~ . ' ~ .. It I ,~. [7" -' -fi' J ... , v'C.-1,,'u, /l/~'U;'{ /-.~~'''~. . .: [ .4,..' l.'. P y'! [], -/ '7 ~ f/' "^-1i!~' h.. .-r,.:,.dt:"'rft;"h~no'.ry" ~ ~ . _,................. ... ... ... So .. <<:-':-..,-...-:>>:, '.. '.,.~,~"lIC, '*, ..~:w.':"..~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF '* PENNSYLVANIA THOMAS J, BOYER. II No, 95 ..,J9..~,o., 1995 Plaintiff I .. II Versu. " d ;1 SUSAN C,Y, BOYER, Dcfendan t DECREE IN -II- IJ 'c( 0 R ?:fr;.4X. 3 f 1(0 BJ1 AND NOW, .. " " "., " , ' " , , ., , , " 19,..,.,. it Is ordered and decreed that.. ........,.. ,~~9~IA~, ~....~9Y,E,~............... ... plaintiff, and, " , , , , , , ,,~\l~N~, ~"'X I , ~,QXJ;:!t, " , .' , , , " , '" , ,,' . , .. " ". defendant, are divorced from the bonds of matrimony, The terms and conditions of the Marriage Settlement Agreement entered into by the parties on May 25. 1995, are incoxporated her~i~. The court retains jurisdiction of the following claims which have been raised of record in this action for which a final order has not yet been entered; None ................ ......... ,t. ....... .tl. to. .... ...... to. ..... ........ ......, "0.,'... to ,... t,. 0". '00.. to, ........ ....... ,t. ,0' ..... ,. 8 ~ $ @ . ~ . $ 8 ~ ~ . . , ~ . ~ ~ - $ " " ~ - ~ ~ ij . ~ iii .' 8 ~ ~ ~ " 3. MUTUAL RELEASE Subject to the provisions ofthis Agreement, each party has released and discharged, and by this Agreement docs 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 other, except any or all cause or causes of action (or 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 the 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 Kathleen Carey Onley, Esquire, in reaching this Agreement, and Wife acknowledges that she was represented by Gary L. Kelley, 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 partics have intended to ellcct an equitablc division of their marital property. This division is not intcnded by the parties to constitute in any way a sale or exchange of assets. 6. SUBSE~UENT D1VORC~ A. AGREEMENT NOT PREDICATED ON DIVORCE - It is specifically undcrstood and agreed by and between the parties hereto and each of the said parties docs hereby warrant and represent to the other that the execution and delivery of this Agreement is not predicatcd upon nor made subject to any agreement for institution, prosecution. defense, or for the non-prosecution or non-defense of any action for divorce; providcd, 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 propcr 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 pUipose of inducing Husband and Wife to execute the Agreement. Husband and Wife each knowingly and understandingly hereby 3 - 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 Agreemcnt. B. ENTRY AS PART OF DECREE. It is thc intcntion ofthc parties that the Agrecmcnt shall survivc any action for divorce which may bc instituted or prosecutcd by cither 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 ofa decree in divorce pursuant to 23 Pa.C.S.A. Section 3301(c). Accordingly, both parties agree to forthwith execute such consents, affidavits, or othcr 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.SA Section 3301(c). Upon request, to the extent pcrmitted by law and the applicable Rulcs of Civil Procedurc, the named defendant in such divorce action shall execute any waivers of noticc or other waivers nccessary to expedite such divorce. 4 - 7. DIVISION OF PERSONAL PROPERTY Husband and Wifc acknowledge that they have agrecd upon a division of personal property to their mutual satisfaction. Wife agrees that all of the property distributed to Husband shall be the sole and separate property of Husband, including thc 35" tclcvision and stereo equipmcnt and the washer and dryer; and Husband agrees that all ofthc propcrty distributcd to Wife shall be the sole and separate propcrty ofWifc, including thc car phone and thc two ycar old Pomcranian. The parties do hereby specifically waive, release, renouncc and forever abandon whatcver claims, if any, he or she may have with respect to the above items which shall becomc thc sole and scparate propcrty of the other. 8. DIVISION OF MOTOR VEHICLES With respect to thc motor vehicles owned by one or both of the parties, they agree as follows: A. The 1980 Fiat convertiblc shall be distributed to Husband. B. The 1993 Honda Civic shall bc distributed to Wife. The titles to the said motor vehiclcs shall bc executed by the parties, if appropriate. for effectuating transfer as hcrcin provided, on the datc of execution of this Agreement or at any time thereaftcr at thc request of eithcr party. 5 9. DISPOSITION OF PROPERTY From and aftcr thc date of thc signing of this Agreemcnt, both parties shall have complete freedom of disposition as to hislher separatc property which is in their possession or control pursuant to tins Agreement and may mortgagc, sell, grant, conveyor othcrwisc encumber or dispose of such property. whether rcal 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. PAYMENT OF SPECIFIED OBLIGATIONS The partics agree that the following constitutc marital obligations which shall bc paid by the following person: A. WIFE - The payment of the outstanding liability on the 1993 Honda Civic. B. HUSBAND - The following credit card accounts: AT&T - Account No. 5398560000948309; Wachovia - Account No. 5467100296593901; and Members First - Account No. 48183. Husband agrces to fully assumc these credit card obligations and Wife agrees to discontinue the use of thcse accounts. All expenses related to thc apartment including utilities. 6 14. MISCELLANEOUS Husband agrees to pay to Wife the sum of Three Thousand Dollars ($3,000.00) upon execution of this Agreement. This payment shall constitute equitable distribution and shall not be taxable to Wife or deductible to Husband. In addition, Husband agrees to pay to Wife the sum ofThrL'C Hundred Fifty Dollars ($350.00) per month for a maximum period of twenty (20) months beginning June 1, 1995, with subsequent payments being due thc 1 st of each month thereafter. The parties agree that this fund shall be used toward the outstanding liability on Wife's 1993 Honda Civic. If Husband is able to satisfy this obligation in full prior to the expiration of this twenty (20) month period, the parties agree that upon satisfaction of this debt. Husband's obligation shall cease at that time. 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 believe and agree, and have been so advised by their respective attorneys, that the division of property heretofore made by tins 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. 8 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 tn.~ is proposed, or any assessment of any such tax is made against either of them, each will indcmnify and hold harmless the other from and against any loss or liability for any such tax deficiency or assessmcnt and any interest, penalty and expense incurred in connection thcrewith. Such tax, interest, penalty or expense shall be paid solely and entirely by the individual who is finally dctermined 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. 15. 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 thcm, including those for necessities, except for thc 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 nil 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 ternlS of this 9 Agreement and that neither of them shall hereafter incur any liability whatsoever for which the estate of the other may be liable. C. SEVERABILITY -Ifany 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 anyone or more of the paragraphs herein, with 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 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. 10 F. WAIVER OR MODIFICATION TO BE IN WRITING - No modification or waiver of any of the terms hereof shall be valid unlcss in writing and signed by both parties and no waiver of any brcuch hereof or default hercunder shnll be deemed a waivcr 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 Agreemcnt shall be construed and govemed in accordance with the laws of the Commonwealth of Pennsylvania. I. 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. J. NO WAIVER OF DEFAULT - This Agreement shall remain in full force and effect unless and until ternnnated 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 perfornlance of any other obligations herein. 11 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 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 Iinlitation. dower. curtesy, their statutory equivalents, widow's allowance, homestead rights, right to take in intestacy, right to take against the will of other, and right to act as adnlinistrator 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. ATTORNEY'S FEES FOR ENFORCEMENT _ In the event that either party breaches any provision of this Agrecment, 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. 12 S. The Plaintitr and Oelcndant are both citizens of the United States of America. 6. There have been no prior actions in divorce between the parties. 7. 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 right to request that the Court require the parties to participate in counseling. 9. The causes of action and sections of the Divorce Code under which Plaintiff is proceeding are: A. Section 330I(c). The marriage of the parties is irretrievably broken. After ninety (90) days have elapsed from the date of the filing of this Complaint, Plaintiff intends to file an Aftldavit consenting to a divorce. Plaintiff believes that Defendant may also file such an Affidavit. B. Section 3301(d). The marriage of the parties is irretrievably broken. The Plaintiff and Defendant separated 011 March 27,1995. WHEREFORE, the Plaintitr prays your Honorable Court to enter a Decree in Divorce from the bonds of matrimony. g6lv-l!l9 (Hi> 6O~l~ \lINV^1ASNN3d 'ElUnaSIUU\lH 3Nua AU3N3:)S 6lm S3:)1~~O MVl :I:>I~~O MVl A31VO 11/'1/ 1."1 II ;:~ iN '95 1,f,: j: