Loading...
HomeMy WebLinkAbout95-02058 '~~'~~~-~~~~~-~~-*~***)~~~_.-~._~~-~~.~ Ii! ------------- - -.......-- ".-- --.......-...----.---'-".-...........-.~~..--...--~........--...... ..,~.,.. ..........-. ----.......__..........--.._.._ . · 8 ~ 8 ~ IN THE COURT OF COMMON PLEAS S S ~ ~ OF CUMBERLAND COUNTY S 8 ~~~ 8 8 ~ 8 STATE OF 1..>/',." ~ PENNA. 8 ",-~~"",'''r 8 8 8 S 8 WILLIAM C. ENSMINGER 8 . i\ ().95~::q::;~LH.HHH 1l)95 ~ Plaintiff 8 \"'1'.'11'< " " " KI .J. ENSMINGER, ~ ~ 8 ~ S 8 ~ " ~ *. ~ I!l . I!l 8 Defendant AND NOW, . . . DEe R EEl N..,- 2 ~ (/ IlM D I V 0 R C EM ~. # "'1' r, , . . . . . .~. . . ., 19\19..... it is ordered and decreed that .... !'I~~~~~. . ~!1:9!'1~!151~~. . . . . . . . . . . . . . . . . . . . . . . . " plaintiff, and. . . . . .. .. ... . .~~ '~" .~lJlll1)~lJ9Elr:. . . . . ... . . .... . . . .. . .. . . . . . ., defendant, are divorced from the bonds of matrimony. The court retains jurisdiction of the following claims which have been raised of record in this action for which a final order has not yet been entered; ~ . I!l I!l ~ " ~ I!l iii .' ~ -. ~------ .~~ .z. -It:' '>>:. .~ll.clai~.~p~~J~. by. .th~.Ma~ital.Settlemeot.A9~ee~ot.attached.he~eto.a~ .~,!I)~I?~~.~. !:~!!. .t.e.t'f118. .q~ .~I);c:l). !l~~. !1!!.~!!PY. .~l'\c:qq:~r:~~~ .l?l!~ .1)C;>~.~r;g\~~UI)~C;> this Dec~e {' /.2./):, Y' -// -L J. , H..',~ [...,c-i!:- t-,; ~..~~Qi."'''/<</ ~ VI'l'J fit' . ,p..ollwllolnry ~ *-~*.~'~***~*****~.~.~.*~,~. ~ 8 ~ ~ ~ !~ ~ 8 8 ~ ~ .. " " ~ ~ ... .'~ ~ ~ '.' " " " " ~ ';0 " ~ ~ '.' ~ '.' ~ '.' ~ ';0 ~ '.' s ~ ~ MARITAL SEm'L1lMml' A~ TIllS AGREIlIlml' made this day of 1995, by and between WILLIAM C. ENSMINGER, of Mechanicsburg, pennsylvania (hereinafter referred to as "HUSBAND"), and KI J. ENSMINGER, of Camp llill, Pennsylvanis (hereinsfter referred to as "WIFE"), wrmESSE'l1I: WHmEAS, the parties hereto are Husband and Wife, having been married on November 12, 1966 in Dauphin County, Pennsylvania; WHEREAS, the Children born of this marriage all have reached the age of majority; iiIII!REAS, the parties hereto are desirous of settling fully and finally their respective financial and property rights and obligations as between each other, including, without limitation, the settling of all matters between them relating to the ownerahip of real and personal property, the support and maintenance of one another and, in general, the settling of any and all claims and possible claims by one against the other or against their respective estates. MM, ~, in consideration of these premises, and of the mutual promises, covenants and undertakings hereinafter set forth, and for other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged by each of the parties hereto, Wife and Husband, each intending to be legally bound hereby, covenant and agree as follows: 1. ADVICE OF OOfiSEL. The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel, Dawn S. Sunday, Esquire, for Husband, and Joseph L. lIitchings, Esquire, for Wife. Each party aCknowledges that he or she has received independent legal advice from counsel of his or her selection, and that each fully understands the facts and has been fully informed as to his or her legal rights and obligations. Each party acknowledges and accepts that this Agreement is, in the circumstances, fair and equitable, and that it is being entered into freely and voluntarily, and that execution of this Agreement is not the result of any duress or ~~due influence, and that it is not the result of any improper or illegal agreement or agreements. In addition, each party hereto acknowledges that he or she has been fully advised by his or her respective attorney of the impact of the Pennsylvania Divorce Code, whereby the court has the right and duty to determine all marital rights of the parties including divorce, alimony, alimony pendente lite, equitable distribution of all marital property or property owned or possessed individually by the other, counsel fees and costs of litigation. After being fully advised of his or her rights under the Pennsylvania Divorce Code, each party hereto still desires to execute this Agreement, acknowledging that the terms and conditions set forth herein are fair, just and equitable to each of the parties, and waives his or her respective right to have the Court of Common Pleas of Cumberland County, or any other court of competent jurisdiction, make any determination or order affecting the respective parties' rights to alimony, alimony pendente lite, support and maintenance, equitable distribution, counsel fees and costs of litigation. 2. DISCLOSURE OF ASSm'S. The parties warrant that they have given a full, complete and accurate disclosure of all assets, of any nature, whether or not the assets were held jointly or in one name alone. The remedies available to ei ther party for breach of violation of this provision shall be those remedies available pursuant to law and equity including the right to punitive and compensatory damages. 3. PIlIlSaiAL RIGlfl'S. Husband and Wife may and shall, at all times hereafter, live separate and apart. Each shall be free from all control, restraint, interference and authority, direct or indirect, by the other. Each may reside at such place or places as he or she may select. Each may, for his or her separate use or benefit, conduct, carryon or engage in any business, occupation, profession or employment which to him or her may Deem advisable. Husband and Wife shall not molest, harass, disturb or malign each other or. the respective families of each other, nor compel or attempt to compel the other to cohabit or dwell by any means or in any manner whatsoever with him or her. Neither party will interfere with the use, ownership, enjoyment or disposition of any property now owned by or hereafter acquired by the other. 4. ~ITABLB DISl'RIBl1l'Im. A. Household Furnishings and Property. Other than as set forth hereunder in this Agreement, the parties agree that Husband shall retain as his sole and separate property, all property currently in his possession and in the marital residence with the exception of the items listed on Exhibit A to this Agreement, which shall be the sole and separate property of Wife. Wife shall obtain from the marital residence the property, to which she is entitled on Exhibit A within thirty (30) days of the execution date of this Agreement. Any property listed on Exhibit A remaining in the marital residence after the thirty (30) day period shall become the sole and separate property of Husband. Husband shall cooperate in making arrangements with Wife to retrieve the personal property listed on Exhibit A from the marital residence. " B. Motor Vehicles. (1) The parties agree that Husband shall retain possession of and receive as his sole and separate property the 1991 Buick Century, along with all rights under any insurance policy thereon, and the responsibility for payment of any outstanding indebtedness pertaining thereto and insurance thereon, and Husband shall indemnify and hold Wife and her property harmless from any liability, cost or expense, including attorney's fees, incurred in connection with the vehicle transferred to Husband by the terms of this subparagraph. wife agrees to execute, acknowledge and deliver any and all instruments or documents necessary in order to effectuate the transfer of said vehicle to Husband within five (5) days of the execution date of this Agreement. (2) The parties agree that Wife shall retain possession of and receive as her sole and separatl! property the 1986 Dodge Ram, along with all rights under any insurance policy thereon, and the responsibility for payment of any outstanding indebtedness pertaining thereto and insurance thereon, and Wife shall indemnify and hold Husband and his property harmless from any liability, cost or expense, including attorney's fees, incurred in connection with the vehicle transferred to liife by the terms of this subparagraph. Notwithstanding the foregoing, Husband agrees to pay all insurance premiums on the 1986 Dodge Ram on Wife's behalf through December 1995. C. Real Estate. (1) Both parties acknowledge that during the marriage they held, as tenants by the entirety, the fee simple interest in the marital residence located at 932 West Trindle Road, Mechanicsburg, CUntlerland County, Pennsylvania. 'I'he parties agree that they shall list the marital residence for sale with a realtor selected by mutual agreement of the parties. The property shall be listed for sale within ten (10) days of the execution date of this Agreement snd both parties shall cooperate in executing all documents necessary to carryout the provisions of this paragraph. The parties agree that the approximate value of the marital property is Eighty-Seven Thousand ($87,000.00) Dollars, as reflected by an appraisal performed by Clement A. Leo, CREA on June 15, 1995. (2) After all encumbrances, inclUding the first mortgage and home equity loan, and settlement costs are satisfied, the net proceeds up to a total amount of Fifty Thousand ($50,000.00) Dollars shall be paid to Wife and any remaining proceeds shall be distributed to Husband. (3) In the event the net proceeds paid to wife from sale of the marital residence are less than Fifty Thousand ($50,000.00) Dollars, Husband shall pay to Wife the difference between Fifty Thousand ($50,000.00) Dollars and the net proceeds already paid within six (6) months of the settlement date on the sale of the marital residence. (4) Capital Gains Tax - The parties acknowledge that each has the right to reinvest in a primary residence within two years from the date of sale of the marital residence in order to defer any gain due to taxing authorities as a result of the sale of their marital residence, providing that he or she purchases a property equal to or greater than one-half the sales price of the marital residence. The partiea agree to each be responsible for fifty (50%) percent of any potential capitsl gain. Should either party elect not to defer their fifty (50%) percent portion of the tax liability of the capital gain to the purchase of a new primary residence, that party specifically agrees that he or she shall be responsible for his or her respective fifty (50%) percent gain to all taxing authodties. The parties shall review all documents intheir respective possessions and shall forward to the other party, within thirty (30) days of the execution date of this Agreement, any documents he or she may have relating to the cost basis of the marital home which the parties sold, and any documents relating to costs of improvements to the home dudng the period of time in which they owned the marital residence located at 932 West Trindle Road, Mechanicsburg, PA. D. other Assets. (1) wife shall retain as her sole and separate property the funds from the parties' joint savings account ($2,100.00) previously distdbuted to Wife, Savings Bonds worth approximately Thirteen ($13,000.00) Dollars, Prudential Life Insurance Policy '552501354 (approximate cash value $1,042.00), Prudential Life Insurance Policy '474106151 (approximate cash value $1,343.00) and PNI Life Insurance Policy '5059308 (approximate cash value $1,145.00). (2) Husband shall retain as his sole and separate property the funds from the parties' joint savings account ($l,130.oo) previously distributed to Husband, Husband's General Water Works Employees' Savings plan ($22,708.00 value at date of separation), Husband's pension through United Water Management and Services Inc. ($3l,097.oo value at date of separation) and PNI Life Insurance policy '5059104 (approximate cash value $2,082.00). E. Miscellaneous Property. Any and all property not specifically addressed herein shall be hereafter owned by the party to whom the property is titled, and if untitled, the party in possession. This Agreement shall constitute a sufficient bill of sale to evidence a transfer of any and all rights in such property from each to the other. 5. t'KA'.,.(l'lC TO WIFE. The parties agree that wife shall own, possess, and enjoy, free from any claim of Husband, the property awarded to her by the terms of this Agreement. Husband hereby quitclaims, assigns and conveys to Wife all such property, and waives and relinquishes sny and all rights thereto. This Agreement shsll constitute a sufficient bill of sale to evidence the transfer of any and all rights in such property from Husband to Wife. 6. ~l:i TO WSBAND. The parties agree that Husband shall own, ~ssess, and enjoy, free from any claim of Wife, the property awarded to him by the terms of this Agreement. Wife hereby quitclaims, assigns and conveys to Husband all such property, and waives and relinquishes any and all rights thereto. This Agreement shall constitute a sufficient bill of sale to evidence the transfer of any and all rights in such property from Wife to Husband. 7. ASSIIlP'l'Itfi OF 1!HCtIUlIll\NCE. Unless otherwise provided herein, each party hereby assumes the debts, encumbrances, taxes and liens on all the property each will hold subsequent to the date of this Agreement, and each party agrees to indemnify and hold harmless the other party and her or his property from any claim or liability that the other party will suffer or may be required to pay because of such debts, encumbrances or liens. 8. LIABILITY NOr LISTED. Each party represents and warrants to the other that she or he has not incurred any debt, obligation or other liability, other than those described in this Agreement, for which the other party is or may be liable. A liability not disclosed in this Agreement \/ill be the sole responsibility of the party who has incurred or may hereafter incur it, and such party agrees to pay it as the same shall oecome due, and to indemnify and hold the other party and her or his property harmless from any and all such debts, obligations and liabilities. 9. DUMiIFICATI~ Of' WIFE. If any claim, action or proceeding is hereafter initiated seeking to hold Wife liable for the debts or obligations sssumed by Husband under this Agreement, Husband will, at his sole expense, defend Wife against any such claim, action or proceeding, whether or not well-founded, and indemnify her and her property against any damages or loss resulting ~herefrom, including, but not limited to, costs of court and actual attorney's fees incurred by Wife in connection therewith. 10. INllfftUFICATI~ Of' 1IUS8AND. If any claim, action or proceeding is hereafter initiated seeking to hold Husband liable for the debts or obligl\tions assumed by Wife under this Agreement, Wife will, at her sole expense, defend Husband against any such claim, action or proceeding, whether or not well-founded, and indemnify him snd his property against any damages or loss resulting therefrom, including, but not limited to, costs of court and actual attorney's fees incurred by Husband in connection therewith. 11. IfARRAtm( AS ro fU1UIB OOLIGATICfiS. Wife and Husband each represent and warrant to the other that she or he will not at any time in the future incur or contract any debt, charge or liability for which the other, the other's legal representatives, property or estate may be responsible. From the date of execution of this Agreement, each party shall use only thoBe credit cards and accounts for which that party is individually liable and the parties agree to cooperate in closing any remaining accounts which provide for joint liability. Each party hereby agrees to indemnify, save and hold the other and his or her property ., harmless from sny liability, loss, cost or expense whatsoever incurred in the event of breach hereof. 12. TAXES. The parties agree that they will file joint tax returns for all tax obligations for the year 1995. For the 1995 tax year, each party agrees to be responsible for one-half of the tax obligation incurred by the parties and each party shall receive one-half of any refund paid for the 1995 tax year. After 1995, the parties agree that they will file separate future tax returns for all tax obligations, and any tax obligation shall be the responsibility of the individual party. Wife and Husband warrant that they have heretofore paid all taxes on prior returns including the calendar year ending December 31, 1994: that they do not owe any interest or penalties thereon: and that no tax deficiency proceeding or audit is pending or notice thereof received. Husband shall give Wife notice of any deficiency assessment and Wife shall give Husband notice of any deficiency assessment of which they individually or collectively become aware. The parties agree that should it ultimately be determined that any deficiency and/or penalty exists with respect to any jointly filed returns, the party responsible for the erroneous preparation and/or non-disclosure of information which has resulted in the deficiency and/or penalty, shall be solely responsible for the payment of the amount ultimately determined to be due, together with interest, as well as expenses that may be incurred to contest the assessment. Should said sums become due as a result of individually filed returns, the party which filed said return shall be solely responsible for all sums due, and shall indemnify and hold harmless the other party for any payment thereon. 13. HEALTH INSURANCB. Husband agrees to maintain health insurance benefits for Wife as long as such benefits are available through Husband's 1ll1ll10yer and until Wife receives payment under paragraph 4C of this Agreement from sale of the real estate. All amounts paid by Husband for Wife's health insurance under this provision shall be deducted from Wife's distribution under paragraph 4 C (2) of this Agreement. l4. SlPPan', ALDD<<, AL~ Pmmmn'B Lrm. The parties agree and do hereby waive any right or claim they may have, both now and in the future, against the other for alimony, alimony pendente lite and spousal support and maintenance. 15. ~ COOPBRATION. Each party shall on demand execute and deliver to the other any real estate listing agreements, real estate sales agreements, deeds, bills of sale, !lssigrunents, consents to change of beneficiary designations, tax returns, and other documents, and shall do or cause to be done every other act or thing that may be necessary or desirable to effectuate the provi.ions and purposes of this Agreement. In addition to the foregoing, Wife shall provide to Husband, within 5 days of the execution date of this Agreement, her W-2 statements for the 1995 tax year and the signed change of Beneficiary form required to delete Wife as a beneficiary under Husband's 40l(k) Plan. If either party fails on demand to comply with these provisions, that party shall pay to the other party all attorney's fees, costs, and other expenses actually incurred as a result of such failure. 16. CXlfiSEL PEES, <DSTS AND EXPENSES. Each party shall be responsible for her or his own legal fees, costs and expenses incurred in connection with their separation and/or the dissolution of their marriage, and the preparation and execution of this Agreement. 17. NAIVm OF INIJmITANCE RIGlrrs. Unless otherwise specifically provided in this Agreement, effective upon the execution date, Wife and Husband each waives all rights of inheritance in the estate of the other, any right to elect to take against the Will or any trust of the other or in which the other has an intereat, and each of the parties waives any additional rights which said party has or may have by reason of their marriage, except the rights saved or created by the terms of this Agreement. This waiver shall be construed generally and shall include, but not be limited to, a waiver of sll rights provided under the lsws of Pennsylvania, or any other jurisdiction, and shall include all rights under the Pennsylvania Divorce Code. 16. \IIAIVI!R c:I BmiEPICIARY DBSI<JVoTICIf. Unless otherwise specifically set forth in this Agreement, each party hereto specificslly waives any and all beneficiary rights in and to any asset, benefit or like program csrrying a beneficiary designation which belongs to the other party under the terms of this Agreement, including, but not limited to, pensions and retirement plans of any sort or nature, deferred conpmsation plans, life insurance policies, annuities, stock accounts, bank accounts, final pay checks or any other post-death distribution scheme, and each party expressly states that it is her and his intention to revoke by the terms of this Agreement any beneficiary designations naming the other which are in effect as of the date of execution of this Agreement. If and in the event the other party continues to be named as beneficiary and no alternate beneficiary is otherwise designated, the beneficiary shall be deemed to be the estste of the deceased party. Notwithstanding the foregoing, however, in the event that either party hereto specifically designates the other party as s beneficiary after the date of execution of this Agreement, then this waiver provision shall not bar that party from qualifying as such beneficiary. 19. RBLEAS8 (p CLADtS. A. Wife and Husband acknowledge and ag~ee that the p~ope~ty dispositions p~ovided fo~ he~ein constitute an equitable distribution of thei~ assets and liabilities pu~suant to 93502 of the Divo~ce Code, and Wife and Husband he~eby waive any right to division of thei~ p~ope~ty except as p~ovided fo~ in this Agreement. Fu~thermo~e, except as otherwise p~ovided fo~ in this Ag~eement, each of the pa~ties he~eby specifically waives, ~eleases, ~enounces and fo~eve~ abandons any claim, ~ight, title o~ inte~est whatsoeve~ she o~ he may have in p~ope~ty t~ansfe~~ed to the othe~ pa~ty pU~suant to this Ag~eement o~ identified in this Ag~eement as belonging to the othe~ pa~ty, and each pa~ty ag~ees neve~ to asse~t any claim to said p~ope~ty o~ p~oceeds in the futu~e. Howeve~, neithe~ pa~ty is ~eleased o~ discharged f~om any obligation unde~ this Ag~eement o~ any instrument o~ document executed pU~suant to this Ag~eement. Wife and Husband shall he~eafte~ own and enjoy independently of any claim o~ ~ight of the othe~, all items of pe~sonal p~ope~ty, tangible o~ intangible, acqui~ed by he~ o~ him f~om the date of execution of this Ag~eement with full powe~ in he~ o~ him to dispose of the same fully and effectively fo~ all pu~poses. B. Each pa~ty he~eby absolutely and unconditionally ~eleases and fo~eve~ discharges the othe~ and the estate of the othe~ fo~ all pu~poses f~om any and all ~ights and obligations which eithe~ pa~ty may have o~ at any time he~eafte~ has fo~ past, p~esent o~ futu~e suppo~t o~ maintenance, alimony pendente lite, alimony, equitable dist~ibution, counsel fees, costs, expenses, and any other ~ight o~ obligation, economic o~ otherwise, whethe~ a~ising out of the ma~ital ~elationship o~ otherwise, including all rights and benefits under the Pennsylvania Divorce Code of 1980, its supplements and amendments, as well as under any other law of any other jurisdiction, except and only except all rights and obligations arising under this Agreement or for the breach of any of its provisions. Neither party shall have sny obligation to the other not expressly set forth herein. C. Except as set forth in this Agreement, each party hereby absolutely and unconditionally releases and forever discharges the other and her or his heiL's, executors, administrators, assigns, property and estate fran any arid all rights, clail118, demands or obligations arising out of or by virtue of the marital relationship of the parties whether now existing or hereafter arising. The above release shall be effective regardless of whether such clail118 arise out of any former or future acts, contracts, engagements or liabilities of the other or by way of dower, curtesy, widow's or widower's rights, family exemption or similar allowance, or under the intestate laws or the right to take against the spouse's will, or the right to treat a lifetime conveyance by the other as testamentary or all other rights of a surviving spoUBe to participate in a deceased spouse's estate, whether arising under the laws of Pennsylvania, any state, conmonwealth or territory of the United states, or any other country. D. Except for the obligations of the parties contained in this Agreement and such rights as are expressly reserved herein, each party gives to the other by the execution of this Agreement an absolute and unconditional release and discharge fran all causes of action, claims, rights or demands whatsoever in law or in equity, which either party ever had or now has against the other. 20. PIWll!RVATI<Ji OF 1U!lCXROO. Each party will keep and preserve for a period of four (4) years from the date of their divorce decree all financial records relating to the marital estate, and each party will allow the other party access to those records in the event of tsx audits. 2l. MODIFICATI<Ji. No modification, rescission, or amendment to this Agreement shall be effective unless in writing signed by esch of the parties hereto. 22. SBVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid or unenforceable, the remaining provisions hereof shall nevertheless survive and continue in full force and effect without being impaired or invalidated in any way. 23. 1lRBAaI. If either party hereto breaches any provision hereof, the other party shall have the right, at her or his election, to sue for damages for such breach, or seek such other remedies or relief as may be available to her or him. The non-breaching party shall be entitled to recover fran the breaching party all costs, expenses and legal fees actually incurred in the enforcement of the rights of the non-breaching party. 24. NAIYm OF BREl\ClI. The waiver by one party of any breach of this Agreement by the other party will not be deemed a waiver of any other breach of any provision of this Agreement. 25. APPLICABLB LAW. All acts contemplated by this Agreement shall be construed and enforced under the laws of the COIlIl1Onwealth of Pennsylvania in effect as of the date of execution of this Agreement. 26. Dl\TB OF BXm1l'ICfi. The "date of execution" or "execution date" of this Agreement shall be defined as the date upon which the parties signed the Agreement if they do so on the same date, or if not on the same date, then the date on which the Agreement was signed by the last pbrty to execute this Agreement. This Agreement shall become effective and binding upon both parties on the execution date. 27. I>IL'rrA;~' OF REXXNCILIATIOO, OOIIABITATlOO (I{ DIVOOCE. This Agreement shall remain in full force and effect and shall not be abrogated even if the parties effect a reconciliation, cohabit as husband and wife or attempt to effect a reconciliation. This Agreement also shall continue in full force and effect in the event of the parties' divorce. There shall be no modification or waiver of any of the terms hereof unless the parties in , writing execute a statement declaring this Agreement or any term of this Agreement to be null and void. 28. HBl\DINGS tDl' PART OF A~. Any headings preceding the text of the several paragraphs and subparagraphs hereof are inserted solely for convenience of reference and shall not constitute a part of this Agreement nor shall they affect Its meaning, construction or effect. 29. AalEDlPNl' BINDING 00 PARTIES AND HElPS. This Agreement shall bind the parties hereto and their respective heirs, executors, administrators, legal representatives, assigns, and successors in any interest of the parties. 30. ENrIRB AalEDlPNl'. Each party acknowledges that she or he has carefully read this Agreement, that she or he has discussed its provisions with an attorney of her or his own choice, and has executed it voluntarily and in reliance upon her or his own attorney. This instrument expresses the entire agreement between the parties concerning the subjects it purports to cover and supersedes any and all prior agreements between the parties. This Agreement should be interpreted fairly and simply, and not strictly for or against either of the parties.