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IN THE COURT OF COMMON PLEAS
or- CUMBERl.AND COUNTY
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nf:1I01lAII 1', F I TZSI HHONS I
No. '1',-21>97 CIVIL TEIlH
1'1,,1111111
VI Hl,ll'~
HOYn s. nnSIHHONS,
no r 0lld8111
DECREE IN
DIVORCE
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AND NOW,
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, PLAI NTI FF,
___Y'!'!!. " 11 IS ORDERED AND
1'. tH7.~lmmvns
IJFCREED IItAI
AND
F1ox'!S., Fll.slmmolls
'_'_M ----, , DEFENDANT,
ARF DIVORCLD FfH1M Till. IlllNIJS III MAll<lr,1{lNY
THE COUI<T I<I1AIN', JlJRI',IJICTION of l1lE HJI.LOWING CLAIMS WHICH HAVE
BEEN fTAISL!l Of' fll'C01<1J IN I It", AC110N 101< WIlICH A FINAL ORDER HAS NOT
YEl HEEN LNIII<I Il;
The COUll .-elalns J\J..lsdl{~lltJl~ tl) n'-"('ndl____~Il~LI_fyr_t.'r.e!1!~)~~_~~~~~~_.(~8_!_~.!lcd
l)omeSllc__~~!~llulIS ()rtlcl- 11fcvlotlsly vl\lvretl ill tills r115V.
Olherwise, 811 olher
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DEBORAH P. FITZSIMMONS,
Plaintiff
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY . PENNSYLVANIA
v,
CIVIL ACTION - LAW
FLOYD S. FITZSIMMONS.
Dc fendant
NO, 95-2697 CIVIL TEI~M
IN DIVORCE
I)I{AECII)E TO TltANS"lIT I{ECOIU>
To the Prothonotary:
Transmit the record. together with the lollowing infonnation to the court for entry of a
divorce decree:
I. Ground for divorce:
Irrctrievable breakdown under ~330I(c)
~1(ll)(l) of the Dh'eree Celle.
(Strike out inapplicable section).
2. Date and manner of servicc of the Complaint: by certified mail. restricted delivery to
Defendant. Floyd S. Fitzsiml11ons,on May 30, 1995,
3, Complete either paragraph (a) or (b).
(a) Date of execution of the Al1idavit of Consent required by ~3301 (c) of the Divorce
Code: by PlaintilT: April 17. 20()O by Defendant: March 17,2000
(b) (I) Date of execution of the affidavit requircd by ~33()1 (d) of the Divorce Code:
(2) Date of liIing and service of the plaintitrs aflidnvit upon the respondent:
4. Rclnted c1nims pending: nonc
5, COIl1plete either (n) or (b),
(n) Date nnd mnnner of service of the notice of intention to lile Prnedpe to Transmit
record, n copy of which is attached:
(b) Date of plnintiffs Waiver of Notice in ~33()1 (c) Divorce wns filcd with the
Prothonotary: April 24.2000
Date defendant's Waiver of Notice in ~3301 (c) Divorce was liled with the
Prothonotary: March 22, 200ll
-----.
DEBORAH P. FITZSIMMONS,
plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
95- ,t. '11 CIVIL TERM
IN DIVORCE
FLOYD S. FITZSIMMONS,
Defendant
NOTICE TO DEFEND AND CLAIM RIGHTS
You have been sued in Court. If you wish to defend against
the claims set forth in the following pages, you must take prompt
action. You are warned that if you fail to do so, the case will
proceed without you and a decree in divorce or annulment may be
entered against you for any other claim or relief requested in
these papers by the Plaintiff. You may lose money or property or
other rights important to you, including custody or visitation of
your children.
When the ground for the divorce is indignities or
irretrievable breakdown of the marriage, you may request marriage
counseling. A list of marriage counselors is available in the
Office of the prothonotary at the Cumberland county Courthouse,
Carlisle, Pennsylvania 17013.
IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF MARITAL
PROPERTY, LAWYER'S FEES, OR EXPENSES BEFORE A DIVORCE IS GRANTED,
YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM_ YOU SHOULD TAKE THIS
PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR
CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW
TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Fourth Floor
Cumberland county Courthouse
Carlisle, Pennsylvania 17013
DEBORAH P. FITZSIMMONS,
Plaintiff
IN TilE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
95-',: v" CIVIL TERM
IN DIVORCE
v.
FLOYD S. FITZSIMMONS,
Defendant
COMPLAINT IN DIVORCE
1.
Plaintiff
is Deborah P. Fitzsimmons,
an adult
individual currently residing at 249 Neil Road, Shippensburg,
Cumberland county, pennsylvania. Ms. Fitzsimmons has resided at
this address for approximately ten years.
2. Defendant is Floyd S. Fitzsimmons, an adult individual
currently residing at 2147 Hafer Road, Fayetteville, Franklin
County, Pennsylvania.
Mr. Fitzsimmons has resided at this
address since April 18, 1995.
3. plaintiff is a bona fide resident of the Commonwealth of
Pennsylvania and has been so for at least six months immediately
previous to the filing of this Complaint.
4. plaintiff and Defendant were married on November 2,
1974, in Franklin county, Pennsylvania.
5. There have been no prior actions for divorce or
annulment between the parties.
6. The Defendant is not a member of the Armed Forces of
the united statee of America or its Allies.
7. Plaintiff has been advised of the availability of
counseling and the right to request that the court require the
parties to participate in counseling.
Knowing this, plaintiff
does not desire that the Court require the parties to partioipate
in counseling.
8. PIa inti f f and Defendant are ci ti zens of the United
states of America.
9. The parties' marriage is irretrievably broken.
10. Plaintiff desires a divorce
based upon the belief
that Defendant will, ninety days from the date of the filing of
this complaint, consent to this divorce.
WHEREFORE, Plaintiff requests your Honorable Court to enter
a decree in divorce pursuant to 23 P.S. section 3301(c).
COUNT II
INDIGNITIES
11. Paragraphs 1 through 10 are incorporated herein by
reference as if set forth in their full text.
12. Defendant has committed such indignities upon the
person of the Plaintiff, the innocent and injured spouse, as to
make her condition intolerable and life burdensome.
WHEREFORE, Plaintiff requests your Honorable Court to enter
a decree in divorce pursuant to 23 P.B. 3301(a)(6) of the Divorce
code of 1980, as amended.
COUNT III
EOUITABLE DISTRIBUTION
13. paragraphs 1 through 12 are incorporated herein by
reference as if set forth in their full text.
14. Plaintiff and Defendant are joint owners of certain
real estate located at 249 Neil Road, Shippensburg, pennsylvania.
15. Plaintiff and Defendant are joint owners of various
items of personal property, furniture, and household furnishings
acquired during their marriage which are subject to equitable
distribution.
16. plaintiff and Defendant have incurred debts and
obligations during their marriage which are subject to equitable
distribution.
WHEREFORE, plaintiff requests your Honorable Court to
equitably divide their marital property and equitably apportion
their debts.
COUNT IV
ALIMONY. ALIMONY PENDENTE LITE.
COUNSEL FEES & EXPENSES
17. Paragraphs 1 through 16 are incorporated herein by
reference as if set forth in their full text.
18. Plaintiff is unable to provide for or afford her
counsel fees, expenses, and costs during the pendency of this
divorce action and through its resolution.
19. Plaintiff is without sufficient property and otherwise
unable to financially support herself despite being employed.
20. Defendant is presently employed and receiving a
substantial income and benefits and is able to pay for counsel
fees, expenses, and costs as well as alimony and alimony pendente
lite for Plaintiff.
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IN WE OOURT OF <XM-DN PLFAS OF
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CIVIL ACfION - lAW
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DOORAH P. Fl1'ZSII-MJNS,
Plaintif f
VB.
F1DYD S. FITZSIt-KlNS,
Defendant
mtPIAUIT IN DIVORCE
GRIFFIE & ASSOCIATES
ATTORNItTS.AT.LAW
aoa NORTH HANOVER STREET
CARL-laLE, PA 17013
SUITE 307
14 NORTH MAIN STAElT
CHAMBERS.UAG. PA 11201
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DEBORAIII'. FITZSIMMONS.
I'lainlirr
: IN TilE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY. PENNSYLVANIA
v,
CIVIL ACTION. LAW
FLOYD S, FITZSIMMONS.
Defendanl
NO, 95-2697 CIVIL TERM
IN DIVORCE
WAIVER ON NOTICE OF INTENTION TO REQUEST
TilE ENTIn' OF A I>IVOH.CE nEClmE
UNnER ~330J(C\ OF THE I>IVOI{CE COnE
I.
I consent to the entry or a Iinal decree in divorce withoutnoliee.
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I understand that I may lose rights concerning alimony. division or property,
lawyer's tces or expenses ir I do not claim them herore a divorce is granted,
), I understand thaI I will not he divorce until a divorce decree is entered by the
Court and that a copy or the decree will he sent to me immediately aller it is tiles with the
Prothonotary,
I VERIFY TIIAT TilE STATEMENTS MADE IN TIlE FOREGOING AFFIDAVIT
ARE TRUE AND CORRECT, I UNDERSTAND TIIAT FALSE STATEMENTS IIEREIN
ARE MADE SUBJECT TO TilE PENALTIES OF IH I'n.eS, *49()4 RELATING TO
UNSWORN FALSIFICATION TO ALJTIIORITIES,
DATE:
AI - 17 - 0 0
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DEBORA II 1', FITZ~ I'luintitf
lllJlllltAIII', F1TZSIMMllNS.
I'luinlill'
: IN TilE l'llllln llF l'llMMllN 1'1.I'AS llF
: {'\ IMIlIJUANIl ("ll\INTY, I'I:NNSYI.V ANIA
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: l'IV11. M'TlllN .I-^ W
: NO. 'J5.~blJ1 l'IVlI,TmM
Fl.llYIJ S, FlTZSIMMDNS,
lJerelldunt
: IN lllVllltCE
WAIVlm OF NOTICE OF INTENTION TO IlEOlJEST ENTllY OF A U1VOIlCE UECllEt:
IINIWll II JJOl(c) OF TilE U1VOIlCE COUI<:
I. I consent to the entry orutinul decree nl'divorce withnulnlllice,
~, IlInderstund thatlmu)' lose righls concerning ulimon)', division ol'prnperly,lulI)w's tces or
expenses if I do nol c1aimlhem hcline u divorce is granted,
3, IlInderstund tl1llt I will nol he divorced uutila divol-.:c decI-CC is enlered h)' the COllrt and thai
II Cllp)' orthe ,!ccree will he sent tome immediately uner it is tiled Ilith Ihe I'rnthonlltary,
AFFII)A VIT OF CONSt:NT
I. A Complaillt in divorce IInder Seclion 3311I(c) lll'the Divorce Code II'IIS liIed on, May 18, 1995.
2, The marriage ol'plaintitland delclldllnt Is irrelrievuhl)' hrnken IInd ninet)' days have elapsed limn the
dale of tiling the Complllinl.
3, I consent tothe enlr)' or lltinal decree Ill' divorce aller sell'ice of notice ofinlenlion III request entry
of the decree,
,I. IlInderstand Ilmll nlll)' lose righls concellling a1i1l1l11l), dil isinnol' propert)', hlll)er's Ices or expcnses
if I do nnt c1aillllhem hctilre alli\lncc Is grarned,
I verit) Ihutlhe stalcmenls made inlhls Wail'er und ^ffidavit lire Irlle und cnl1'ecl. lunderstllnd thall'ulse
stulel1lents herein ure made suhject tnlhe penahics nI'l H I'u, l'.S, section 4lJ1l4 relating to IInsworn rulslticatlon
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Kayer and Brown
A Professional Corporation
Liberty Loft · 4 E, Libe/ly Avenue. Carlisle, PA 17013
1717) 243.7922
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v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-2697 CIVIL TERM
DEBORAH P. FITZSIMMONS,
Plaintiff
FLOYD S. FITZSIMMONS,
Defendant
~
AND NOW, June 1, 1995, the parties having appeared In Court with
their respective attomeys, It Is ordered and decreed as follows:
1. Pending further Order of Court or written agreement of the parties,
plaintiff, Deborah P. Fitzsimmons, shall retain exclusive possession of the fonner
marital residence at 249 Nell Road, Shlppensburg, Cumberland County,
Pennsylvania, to the exclusion of the defendant, Floyd S, Fitzsimmons.
2. On Saturday, June 3, 1995, at 10:00 a.m., the plaintiff will provide
the defendant with access to the aforesaid residence for purposes of removing
defendant's clothing, weed-wacker, gas can, other personal Items, and gun cabinet.
3. On Saturday, June 3, 1995, at 10:00 a.m., defendant's brother,
Dale Fitzsimmons, shall be provided with access to the plaintiffs father's (Earl
Mays) residence, for purposes of securing possession of the defendant's flreanns.
4. At the time defendant secures his personal Items as Indicated In
paragraph 2 above, Michael Sechrist shall not be present at the plaintiffs
residence.
VB.
1 N 'X'IIE COURT OF COMMON PLEAS OF
CllMIlERLAND COUN'l'Y, PENNSYLVANIA
CIVIL ACTION - LAW
DEBORAII P. Fl'l'Z61 MMONfl,
Plointi rf
FLOYD 6. t"l'I'ZflIMMOIW, NO. 95-2697 CIVIL 'l'ERM
Defendant IN DIVORCE
~I)IJLQ1~Rr
AND NOW, this;o day of May, 1995, upon presentation and
consideration of the within Petition for continuance, the hearing
previously schedulod in this mattor for Tuesday, May 30, 1995 at
3100 p.m. is continued to 'l~urBday, June I, 1995 at 3100 p.m., to
be held in Courtroom number J of the Cumberland county
Courthouse, Carlisle, Pennsylvania.
BY TilE COURT,
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DEBORAH P. FITZSIMMONS,
PIa inti ff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
FLOYD S. FITZSIMMONS,
Defendant
NO. 95-2697 CIVIL TERM
IN DIVORCE
PETITION FOR CO~TINUANCE
AND NOW, comes Bradley L. Griffie, Esquire, counsel of
record for the above named Plaintiff, Deborah P. Fitzsimmons, and
petitions the Court as follows:
1. Your Petitioner is legal counspl for Deborah P.
Fitzsimmons, an adult individual currently residing at 249 Neil
Road, Shippensburg, cumberland county, Pennsylvania.
2. Petitioner filed a Petition for Exclusive Possession on
behalf of the Plaintiff, which caused a hearing to be scheduled
for Tuesday, May 30, 1995 at 3:00 p.m. in Courtroum Number 3 of
the cumberland county Courthouse, Carlisle, Pennsylvania.
3. Due to an emergency hearing in another county, at which
Petitioner's presence is required, the hearing presently
scheduled in this case shall be rescheduled to a later date.
WHEREFORE, Petitioner requests your Honorable court to
reschedule the hearing on the Plaintiff's Petition for Exclusive
Possession filed in this case.
Respectfully eubmitted,
GfHFFIE,~l\SSOCIATEs
/ /;~~t:~~~rtlfle, Esquire
/ ,~~ney for Plaintiff
- 200 North Hanover street
Carlisle, PA 17013
(717) 243-5551
(000) 347-5552
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Pa. Reporter, 481-651 A.2d
Laczkowski, (Pa.super. 1985)
496 A.2d 56, 344 Pa.super. 154, Laczkowski v.
2. DIVORCE k252.5(2)
134
134V Alimony, Allowances, and Dispouition of Property
134k248 Disposition of Property
134k252.5 Homestead or Residence, Disposition of
134k252.5(2) Effect of child custody.
Pa.super. 1985.
Lower court had authority to temporarily award marital residence, pending
equitable distribution of marital property, to spouse having physical custody of
minor child and to order other spouse to vacate premises. 23 P.S. Sec. 401(c,
h).
3. STATUTES k223.l
361
36lVI Construction and operation
361VI(A) General RUles of Construction
361k223 Construction with Reference to Other Statutes
361k223.1 In general.
Pa.super. 1985.
Where a conflict exists between two statutes, Superior Court must construe
the two, if possible, so that both may be given effect.
[344 PASUPER 156] Joseph P. Giovannini, Jr., Wilkes-Barre, for appellant.
Charles A. Shaffer, Wilkes-Barre, for appellee.
Before CAVANAUGH, BECK and TAMILIA, JJ.
--------------------------- Page 496 A.2d 57 follows ----------------___________
TAHILIA, Judgel
This case presents the novcl, yet important, issue of whether section 401 of
the Divorce Code (FNl) empowers our courts to enter an Order giving a wife (and
child) the right to reside in the marital residence until equitable distribution
is made, and further ordering the husband to vacate said premises. since this
is an issue of first impression in this commonwealth, we have reviewed the law
of two leading juriSdictions which have addrcssed this question and conclude
that the Order of the lower court should be affirmed.
The appellee, Linda Claire Laczkowski, and the appellant, Edward Thomas
Laczkowski, although currently separated, are husband and wife and were married
on June 17, 1967. The parties have one child born of this marriage a
daughter, Melissa, age 7. The partics and their minor daughter resided
together in the marital residence located at 123 Oak streot, Wilkes-Barre,
Luzerne County, Pennsylvania, until Hay 3, 1982, when the appellee, toqether
with Melissa, left the marital residence and went to reside at the appellee's
[344 PASUPER 157] parents' home at 42 Dagobert street, Wilkes-Barre. Appellee
and Melissa resided there until May 16, 1983.
Copyright (c) West PUblishing Co. 1995 No claim to original U.S. Govt. works.
Pa. Reporter, 481-651 A.2d
Laczkowski, (Pa.Super. 1985)
496 A.2d 56, 344 Pa.Super. 154, Laczkowski v.
The marital residence is jointly owned by the parties, in the form of tenancy
by the entirety, and is the only real estate owned by them and the single major
asset of their marital estate. On June 24, 1982, the appellee filed a
complaint in divorce against the appellant alleging the no-fault grounds of an
irretrievably broken marriage as well as the fault grounds of indignities. The
complaint further requested that the ancillary matters of permanent alimony,
division of property, attorneys fees, temporary alimony, child support and court
costs be determined in the divorce proceedings.
On September 15, 1982, an inventory and appraisement was filed by the
appellee pursuant to the Rules of civil Procedure. On November 19, 1982, the
appellee filed a petition for special relief, requesting that she be placed in
possession of the marital residence to the exclusion of the appellant on the
basis that she had been subjected to harrassmont and mental cruelty by the
appellant and, in support thereof, cited section 401(h) of the Divorce Code and
Pa.R.C.P. 1920.43(a). Along with the petition for special relief, the appellee
filed a rule to show cause why the possession of the marital residence should
not be granted to the appellee. said petition and rule were duly served upon
the appellant, who filed an answer to the petition on November 29, 1982. After
a hearing on December 29, 1982, the lower court issued an Order directing the
appellant to leave the marital residence and granting exclusive possession to
the appellee. No exceptions were taken to this Order nor was an appeal
perfected.
On January 27, 1983, appellant's former counsel withdrew his appearance and
present counsel entered his appearance on appellant's behalf. On February 7,
1983, the appellant, by and through his new counsel, filed a motion and rule to
show cause why the Order of December 29, 1982 should not be vacated for lack of
jurisdiction.
[344 PASUPER 158] On February 22, 1983, a rule to show cause and petition for
citation for contempt was filed on behalf of the appellee due to the appellant's
failure to relinquish possession of the marital residence. The rule returnable
was set for March 7, 1983, the same day on which the appellant's rule was
returnable on his motion to vacate the Order for lack of jurisdiction.
On March 11, 1983, the lower court, after a hearing, denied the appellant's
motion to vacate the December 29th Order. The Order of March 11, 1983 was
entered of record on March 16, 1983, whereupon the appellant immediately filed
an appeal to this Court. The Order of March 11, 1983, reads as follows:
'AND NOW, this 11th day of MARCil, 1983, at 10145 o'clock, A.M., upon
consideration
--------------------------- Page 496 A.2d 58 follows ---------------------------
of the Defendant's Motion, and after Hearing, this Court finds that the
issues raised by the Defendant in his Motion to Vacate, could have been
raised by the Defendant at the time that the hearing was held cn the
Plaintiff's Petition for SpociaI Relief, and that they were not raised at
that time, and not having raised them previously, the Defendant is barred
from raising them now.
FURTllER, even it this court were to consider the issues now raised by the
Defendant, the Court is of the opinion that the Order entered December 29,
1982, was proper under all of the circumstancest and it is hereby
Copyright (c) West PUblishing Co. 19'J!.) No claim to original U.s. Govt. works.
Pa. Reporter, 481-651 A.2d
Laczkowski, (Pa.Super. 1905)
496 A.2d 56, ]44 Pa.Super. 154, Laczkowski v.
ORDERED that the Defendant's Motion to Vacate said Order is DENIED.
BY 'l'IIE COURT,
Isl Brominski,
J. '
On March 10, 1983, appellant filed a petition for stay and supersedeas of the
December 29, 1982 Order, pending the instant appeal. said petition was denied
and on March 11, 198], after a hearing, the lower court found the appellant in
contempt of the December 29, 1982 Order awarding appellee the right to live in
the family home to the appellee. On May 12, 1903, after a hearing, the lower
court entered a [344 PASUPER 159] further Order which directed the appellant to
purge himself of his contempt of the December 29, 19B2 Order by 9:00 a.m. on May
16, 19B3. Additionally, the Order stated that upon failure of the appellant to
purge himself of his contempt, as provided above, the Sheriff of Luzerne County,
upon request by the appellee and without further hearing, would be directed to
apprehend and incarcerate the appellant in the Luzerne County Prison, until such
time as the appellant assured the court that he had purged himself of his
contempt.
Appellant argues (1) that the lower court lacked jurisdiction under section
401 of the Divorce Code and Pa.R.C.P. 1920.4](a) to dispossess the appellant
from the marital residence and grant exclusive possession to the appellee; and
(2) that because the lower court lacked jurisdiction and authority to issue such
an order, the appellant cannot be held in contempt of court for noncompliance
with an invalid order.
At the outset, we note that appellant has phrased the above issues in the
context of a jurisdictional attack when, in fact, no such question exists.
This appeal stemmed from a divorce action which the lower court clearly had
jurisdiction to hear. The question concerning whether the court could
dispossess the appellant from the marital residence and grant exclusive
possession to the appellee during the pendency of the divorce proceedings is not
a jurisdictional matter; rather, it involves the jUdicial interpretation of
section 401 of our Divorce Code. Rephrased, the issue before us is whether the
lower court correctly applied section 401 of the Divorce Code. Consequently,
we are not concerned with subject matter jurisdiction, which is limited to the
question of whether a court has the power to determine controversies of the
general class to which the case belongs. See Nagle v. American Casualty Co.,
317 Pa.Super. 164, 46] A.2d 11]6 (19B]). Our review of the record leads us to
conclude that appellant, through his new counsel, phrased the above issues in
this context because an attack on the court's subject matter jurisdiction can be
[344 PASUPER 160] raised at any time and cannot be waived. Encelewski v.
Associated-East Mortgage Co., 262 Pa.Super. 205, ]96 A.2d 717 (1970).
Obviously, this was done in direct response to prior counsel's failure either to
take exceptions to the December 29, 1982 Order or to perfect an appeal from that
Order. While there is no Pennsylvania case on point regarding a temporary
award of the possession of the marital residence, this Court has previously held
that the failure to file exceptions to an award of alimony pendente lite or
interim counsel fees constitutes a waiver. See, e.g., sutliff v. Sutliff, 326
Pa.Super. 496, 474 A.2d 599 (1984); carangelo v. Carangelo, ]21 Pa.Super. 219,
467 A.2d 1]3] (198]); Commonwealth ex rei. Dewalt v. Dewalt, ]09Pa.Super.
275,455 A.2d 156 (198]). See
copyright (c) West Publishing Co. 1995 No claim to original U.S. Govt. works.
Pa. Reporter, 481-651 A.2d
Laczkowski, (Pa.Super. 1985)
496 A.2d 'J6, 344 Pa.Super. 154, Laczkowski v.
___________________________ Page 496 A.2d 5Y [allows ---------------------------
also Pa.R.C.P. 1038, 1920.I(b), 1920.52 and 1920.55.
However, we believe that a finding of \l8iver would be unfair in the context
of the present case as this area o[ tho law was unsettled during the time period
wherein appellant's counsel failed to file exceptions. While Dewalt held that
the failure to file exceptions to an order awarding alimony pendente lite
constitutes a waiver, we emphasize that it was not filed until January 21, 1983,
more than three weeks after the Decembor 29, 1982 Order. Thus, when the final
order awarding the temporary use and possess ion of the marl tal home was entered
on December 29, 1982, there had been no judicial pronouncement which
specifically required the filing of exceptions to an award of alimony pendente
lite or interim counsel fees (let alone an award involving the temporary use and
possession of the marital home). (FN2) Due to the uncertainty in the existing
law at that time, we conclude that there are sufficient reasons for finding no
waiver here. See Commonwealth ex reI. Nixon v. Nixon, 321 Pa.Super. 313, 458
A.2d 976 (1983) (no waiver [344 PASUPER 161] since at time final support order
was entered there existed no judicial pronouncement specifically requiring the
filing of exceptions), Jones v. state Automobile Insurance Association, 309
Pa.Super. 477, 455 A.2d 710 (1983) (failure to file exceptions did not
constitute waiver due to the considerable confusion in the existing law). See
also Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280 (1978)/ General Mills,
Inc. v. Snavely, 203 Pa.Super. 162, 199 A.2d 540 (1964), Werts v. Luzerne
Borough Authority, 15 Pa.Commw.Ct. 631, 329 A.2d 335 (1974), Pa.R.C.P. 126,
Pa.R.A.P. 105.
[1] Moreover, on January 27, 1983, appellant's former counsel withdrew his
appearance and preaent counsel entered his appearance on appellant's behalf.
While appellant seems to have a propensity for experiencing difficulty with his
attorneys, (FN3) we are concerned that thi s incompatibi li ty could have
motivated prior counsel's failure to either take exceptions to or appeal the
December 29, 1982 order. Finally, as we previously stated, this is an issue of
first impression which involves the welfare of a child, we believe that the
necessity of addressing the merits of this appeal is evident. (FN4) We find no
waiver in the instant case because of the above reasons. However, we wish to
point out that in future cases, counsel must follow the dictates of sutliff,
Carangelo and Dewalt, supra, which require the filing of exceptions to preserve
issues on appeal.
[344 PASUPER 162] (2] 'l'urning now to the issue of whether the lower court
properly awarded the marital residence to the wife, we point out the broad
equitable powers conferred upon courts pursuant to section 401(c) of the Divorce
Code, which provideal
c. In all matrimonial caUElOS, the COU1-t shall havo full equity powar and
jurlsdictioll
--------------------------- Page 49(, A.2d (,0 follows ---------------------------
and may isaue injunctions or other orders which are necessary to protect the
interests of the parties or to cffectuato the purposes of this act, and may
grant such other relief or rcmedy BS equity and justice require against
either party or aqainst finy third pOlBOII over whom the court has jurisdiotion
and who is involved in or concerned with the tllllPollition of the cause.
Moreover, section 401(h) speciflcfilly "tateu:
Copyriyht (c) West I'ulllishin<j Co. lye).) No "Inim to oriqinal !J.B. Oovt. works.
Pa, Reporter, 481-651 A.2d
Laczkowski, (Pa.Super. 1985)
h. The court may award to one, each, or both of the parties the right to live
in the family home for reasonable periods of time.
496 A.2d 56, 344 Pa.Super. 154, Laczkowski v.
Viewing these two sections together, we hold that the lower court had the
authority to temporarily award the marital residence, pending equitable
distribution of marital property, to a spouse having physical custody of a minor
child. Our conclusion is supported by section 102 of the Divorce Code which
states in pertinent part:
Sec. 102. Legislative findings and intent
(a) The family is the basic unit in society and the protection and
preservation of the family is of paramount pUblic concern. Therefore, it is
hereby declared to be the policy of the Commonwealth of Pennsylvania to:
(1) Make the law for legal dissolution of marriage effective for dealing
with the realities of matrimonial experience.
(2) Encourage and effect reconciliation and settlement of differences
between spouses, especially where children are involved.
(3) Give primary consideration to the welfare of the family rather than
the vindication of private rights or the punishment of matrimonial wrongs.
[344 PASUPER 163] (4) Mitigate the harm to the spouses and their children
caused by the legal dissolution of the marriage.
(5) Seek causes rather than symptoms of family disintegration and
cooperate with and utilize the resources available to deal with family
problems....
Our conclusion is supported by the case law of two states whose divorce
statutes are substantially similar to our Divorce Code. In the recent New
Jersey case of Degenaars v. Degenaars, 186 N.J.Super. 233, 452 A.2d 222 (1982),
the New Jersey Superior Court held that a spouse may be excluded from the
marital residence solely because that spouse had been living apart from the
residence for a period of time. The Degenaars court noted that it had the
power to grant the relief sought by the wife through its inherent equitable
jurisdiction. In Degenaars, the husband voluntarily removed himself from the
marital home and for 17 months, the wife and children planned and lived their
lives in the absence of the husband as an overnight resident. The Degenaars
court emphasized that it was faced with a pendente lite situation, and thus, the
mental and emotional health and welfare of the wife and children should not "be
compromised by the ever-present knowledge that defendant can move in, out and
about the marital home with impunity[.]" Degenaars, supra, 186 N.J.Super. at
235, 452 A.2d at 223. Citing its parens patriae jurisdiction as protecting the
interests of children, especially in matrimonial litigation, the Degenaars court
noted that the legislature has vested the trial courts with broad equitable
powers during the pendency of matrimonial actions, to make such orders "as to
the care ... and maintenance of the children, or any of them, as the
oircumstances of the parties and the nature of the case shall render fit,
reasonable and just ..." N.J.S.A. 2A:34-23. See Davis v. Davis, 184 N.J.Super.
430, 446 A.2d 540 (1982).
The DegenaarB court found that:
Copyright (eJ West Publishing Co. 1995 No claim to original u.s. Govt. works.
Pa. Reporter, 481-651 A.2d
Laczkowski, (Pa.Super. 1985)
496 A.2d 56, 344 Pa.Super. 154, Laczkowski v.
... [i]t would be inimical to the best interests and welfare of the plaintiff
and the children to permit their lives, both emotionally and physically, to
be traumatically invaded by [344 pASUpER 164J defendant's unilateral decision
to resume residency in the marital home. ~'he interests and welfare of the
plaintiff and children will be best served by maintaining the status quo ante
as initiated by the defendant himself.
--------------------------- Page 496 A.2d 61 follows ---------------------------
Oegenaars, supra at 235, 452 A.2d at 223.
Another instructive case is Pitsenberger v. Pitsenberger, 287 Md. 20, 410
A.2d 1052, appeal dismissed, 449 U.S. 807, 101 S.ct. 52, 66 L.Ed.2d 10, reh'g
denied, 449 U.S. 1028, 101 S.ct. 601, 66 L.Ed.2d 491 (1980), where the court
ruled against the husband's due process challenge to an award of temporary
exclusive possession of the marital home to one spouse without requiring said
spouse to show that grounds exist for a divorce. The Pitsenberger court noted
that the trial court had referred the pendente lite issues to a master, who
recommended that the wife, who was given pendente lite custody of the parties'
five children, also be given pendente lite possession of the family home so that
the children could continue to attend their former school without being forced
to travel a greater distance. The authority upon which the Pitsenberger court
issued the use and possession award of the family home to the wife is section
3-6A-06 of the Courts and Judicial Proceedings Article from the Annotated Code
of Maryland which, in relevant part, provides:
(a) The authority conferred by this section shall be exercised to permit the
children of the family to continue to live in the environment and community
which is familiar to them and to permit the continued occupancy of the family
home and possession and use of family use personal property by a spouse with
custody of a minor child who has a need to live in that home.... In
exercising its authority under this section, the court shall consider each of
the following factors:
(1) The best interests of any minor childt
(2) The respective interest of each spouse in continuing to use the family
use personal property or occupy or usc the family home or any portion of it
as a dwelling placet
[344 PASUpER 165] (3) The rcspective intcrest of each spouse in continuing
to use the family use personal property or occupy or use the family home or
any part of it for the production of incomel
(4) Any hardship imposed upon the spouse whose interest in the family home
or family use personal property is infringed upon by on order issue under
this section....
In Pitsenberger, supra, 287 Md. at 31, 410 1I.2d at 1058, the Maryland Court
of Appeals lucidly stated that the legislative purpose and intent of section
3-6A-06 in the context of a pendente lite use and possession award is to give
"apeclal attention to tho needs of minor children to continue to live in a
familiar environment" and "to avoid uprooting the children from the home,
school, social and community settiny upon which thoy arc dependent." Yd. See
Copyright (c) West publishiny Co. 1995 No c:lalm to original U.S. Govt. works.
Pa. Reporter, 481-651 A.2d
Laczkowski, (Pa.Super. 1985)
also, Kennedy v. Kennedy, 55 Md.App. 299, 462 A.2d 1208 (1983): Strawhorn v.
strawhorn, 49 Md.App. 649, 435 A.2d 466 (1981), vacated on other grounds, 294
Md. 322, 450 A.2d 490 (1982).
496 A.2d 56, 344 Pa.Super. 154, Laczkowski v.
We adopt the rationale of Dugenaars and Pltsenberger, and hold that the lower
court acted properly in awarding temporary use and possession of the marital
home to the appellee.
Appellant's claim that Pa.R.C.P. 1920.43(a), which is a procedural arm of
section 403(a) of the Divorce Code, precludes the award of the marital home in
the instant case since the appellee did not allege that the property would be
sold, removed, alienated or encumbered in any way, has no bearing on the issues
before us. Appellant's claim is belied by the manifest language of section
102(a), which, as we have already indicated, is concerned with preserving the
family unit and protecting the welfare of children in marital disputes.
Appellant's attempt to override such a humane policy by arguing that our Divorce
Code can only grant relief when there is harm to the property involved is
contrary to the dictates of our Divorce Code, as well as bei.ng offensive to the
societal needs of children caught in the crossfire of domestic disputes. While
common law (344 PASUPER 166] jurisdictions have traditionally treated property
rights
--------------------------- Page 496 A.2d 62 follows ---------------------------
as both unique and omnifarious, we believe that in the instant case such rights
must yield to the common law doctrine of parens patriae, the goal of which is to
provide the child with a permanent home. Since the cases relied on by the
appellant involve different situations, such as the award of the marital home as
a form of child support or permanent alimony after a divorce and pursuant to
equitable distribution, we need not consider them as they are totally
inapposite.
(3] Furthermore, appellant's contention that the Protection From Abuse Act,
35 P.S. Sec. 10181 et seq., preempts any alternative procedure by which one
spouse may dispossess another spouse from the mari.tal residence is untenable.
Where a conflict exists between two statutes, the superior Court must construe
the two, if possible, so that both may be given effect. Young v. Young, 320
Pa.Super. 269, 467 A.2d 33 (1983), rev'd on other grounds, --- Pa. ---, 488
A.2d 264 (1985). A protection from abuse proceeding is quasi-criminal in
nature and seeks to protect the abused spouse and children from physical
violence, whereas the relief awarded in the instant case is equitable in nature
and is concerned with stabilizing the family unit. As such, this statute must
be construed in pari materia with the Divorce Code, since they were enacted for
different but not incompatible purposes. since recourse was not had to a
proceeding under the Protection From Abuse Act, we find that it has no bearing
on our decision.
The equitable powers of the courts under our Divorce Code are extremely
broad, and since the Code unequivocally recognizes the right of one spoUBe to
live in the family residence after divorce, there is no discernible reason for
precluding such an award in a pendente lite situation. While our decision may
appear to have wide reaching ramifications, we are mindful that the exclusion of
a spouse from the marital home during the pendency of a divorce proceeding is a
harsh remedy that will not be awarded 1344 PASUI'ER 167] cavalierly. .The need
for such an award must be clearly evident in the facts of each case.
Our review of the record leuds us to conclude tho lower court acted properly
copyright (c) West Publishing Co. 1995 No claim to original u.s. Govt. works.
Pa. Reportor, 481-651 A.2d
Laczkowski, (Pa.Super. 1985)
496 A.2d 56, 344 Pa.Super. 154, Laczkowski v.
in ruling that the appell ee, Li nda Clai re Lllczkowski, met her burden of pt"oof
regarding the petition for special relicf wherein she alleged:
1. The Plllintiff IInd the Uefendllnt fire the owncrs of a fumily home, which
home is known as 123 oak street, Wilkes-Ban-e, LUZel"ne county, Pennsylvania.
2. Tho Plaintiff and the Defendant, und their minor dau'lhter, resided
together in the family home, prior to May J, 1982, at which time, the
Defendant engaged in such harassment and mental cruelty and intimidation, and
threats of violence, as to cause Plaintiff and her minor daughter, to leave
ths f amil y home.
3. The Defendant, since May 3, 1982, has had possession of the family home,
and hbs excluded the Plaintiff from the family home.
4. The Plaintiff, and her minor daughter, are residing with the Plaintiff's
parentE, and have been residing with the Plaintiff's parents since Hay 3,
1982.
5. The present situation is not conducive to a harmonius home life for the
Plaintiff and her minor daughter; nor is it fair to the Plaintiff's parents.
The situation is progressing to the point where it will no longer be
tolerable for the Plaintiff and her minor daughter, and the Plaintiff's
parents, to share the home of the Plaintiff's parents.
6. The Plaintiff has tried to rent suitable living accommodations for herself
and her minor daughter, but she has been unsuccessful because of her lack of
a credit rating, and because of insufficient income.
7. The Defendant earns an excess of Twenty-throe Thousand ($23,000.00)
Dollars a yearl he can easily rent an apartment, or he can live with his
father, who lives alone and has adequate room for the Defendant.
___________________________ Page 496 A.2d b3 follows ---------------------------
WHEREFORE, the Plaintiff prays this Honorable Court to enter an Order,
awarding to the Plaintiff, the right to live in the family home until such
time as this Court (344 PASUPER 168J makes equitable distribution of the
marital property of the Parties.
(Appellee's Petition for Special llel1ef, filed November 19, 1982).
Accordi ngl y, the M01'ch 11, 1983 Order deny Inq appell ant's mot ion to vacate
the December 29, 1<J1l2 Oniel' ill attll-mOlt. (I'N'>l
BECK, J., dissenting.
nECK, ,Judqe, dillllellt IIl<J :
I /'llllpectlully ,lltJlWllt fnlm t.he mnjlll'lly'll hollllng that appellant has
propor'ly nppuolllll tll thlu court. I wlluld ')lltltlh the inutant IlppllaI on the
grounll thnt tho t.rlill CllUl't'U ordt'" of \)lll",m))l!l' 2'), lYIl2, (FN1) was
lnlerlllcutlll'y und nlln-'jppunlnl>lu. (FNn MllI'UllVUI', uvun if the trial court's
order hllll beon f I nil I illlel ilPJlO" I ill>l e, I WllU I d IlllverttlO I OliS qUilllh tho present
appolll b.WilUIlO IIppullullt. llid not. t.imely ilJlJlllol tho Ilueumbllr 2e) ll!"lier.
copyrilJht: (e) Wllllt. 1'lI1>111lhinlJ Co. Ilje)', Nil clnlm t.o 01 iginill 11.11. Govt. works.
Pa. Reporter, 481-651 A.2d
Laczkowski, (Pa.Super. 1985)
496 A.2d 56, 344 Pa.Super. 154, Laczkowski v.
Where, as in the case sub judice, an order does not terminate the parties'
litigation or resolve the parties' entire dispute, the order may be deemed final
and appealable only if it bears the following three aspects of finality: "'(1)
it is separable from and collateral to the main cause of action: [344 PASUPER
169] (2) the right involved is too important to be denied review: and (3) the
question presented is such that if review is postponed until final jUdgment in
the case, the claimed right will be irreparably lost.' " Sutliff v. Sutliff,
326 Pa.Super. 496, 499, 474 A.2d 599, 600 (1984) (citation omitted). I
conclude that the third aspect of finality is not satisfied by the trial court's
December 29 order.
It is necessary to construe the mandate of Sutllff strictly. For this
court to do otherwise would result in an undue number of piecemeal appeals from
a single case. "[I]t would permit the party with greater resources to exhaust
the resources of the party with less by taking repeated appeals." Id. at 504,
474 A.2d at 603 (Beck, J., dissenting). An appeal of an order stays the entire
proceeding. Appeals from interim orders create undue delay in the ultimate
resolution of the parties' marital and economic status. "Justice is best served
and harm to both parties is minimized by proceeding directly and expeditiously
to a final disposition of the entire case at which a complete and fair
resolution of all the economic issues may be made." Id. at 504, 474 A.2d at
603 (Beck, J., dissenting).
The Divorce Code (FN3) empowers a court to adjust the parties' ultimate
financial settlement (equitable division and distribution of marital property/
permanent alimony) to reflect interim relief afforded either party during the
pendency of the divorce proceedings. sutliff (Beck, J., dissenting).
Accordingly, an award of interim relief such as temporary occupancy of the
marital residence, does not irreparably disadvantage the non-receiving party.
Id. Since appellant's claimed right will not be irretrievably lost if review of
the December 29 order is postponed until final disposition of the parties'
-------------------------- Page 496 A.2d 64. follows ---------------------------
divorce action, the December 29 order does not meet all three criteria of
finality and is an interlocutory, non-appealable order.
However, assuming arguendo that the December 29 order was final and
appealable as the majority holds, I would still [344 PASUPER 170] quash the
instant appeal. The majority states, and I agree, that appellant's petition to
vacate the December 29 order constituted an effort to circumvent appellant's
failure to file either timely exceptions to or a timely notice of appeal from
the December 29 order. For the following reasons, I conclude that appellant's
failure to file a timely notice of appeal from the December 29 order requires us
to quash this appeal.
citing Commonwealth ex reI. Nixon v. Nixon, 321 Pa.Super. 313, 458 A.2d 976
(1983)/ Jones v. State Automobile Insurance Association, 309 Pa.Super. 477,
455 A.2d 710 (1983)/ Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280
(1978), and General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 199 A.2d 540
(1964), the majority contends that appellant's failure to file exceptions to the
December 29 order should not constitute a waiver of issues for appellate review.
My rending of Nixon, Jones, Pomerantz, and General MillS, Inc. persuades me
that the case at bar is sufficiently distinguishable to necessitate n different
result.
Copyright (c) West PUblishing Co. lY95 No claim to original U.S. Govt. works.
Pa. Reporter, 481-651 A.2d
Laczkowski, (Pa.Super. 1985)
In Nixon and Jones the respective appellants did not file exceptions to the
challenged court orders, but the appellants did file timely notices of appeal
from the orders in question. In Pomerantz the appellant timely filed a
document conteating a court order, but the document was captioned motion for a
new trial rather than exceptions. Finally, in General Mills, Inc. the
appellant duly filed an answer, new matter, and counterclaims containing
contradictory averments, but his pleadings were not accompanied by a Pa.R.C.P.
No. 1024 verification of inconsistent allegations. The common thread in
Nixon, Jones, Pomerantz, and General Mills, Inc. is that the appellant in each
case took timely, affirmative action to assert his viewpoint even though the
action in each instance was not in strict accordance with the applicable
procedural rules. Most similar to the case sub judice are Nixon and Jones
wherein the appellants neglected to file exceptions to contested court orders.
Notably, however, the appellants in Nixon and Jones did file prompt notices of
appeal from the disputed [344 PASUPER 171) orders whereas the instant appellant
permitted the appeal period to expire before he took any action challenging the
December 29 order.
496 A.2d 56, 344 Pa.Super. 154, Laczkowski v.
While the "rules shall be liberally construed to secure the just, speedy and
inexpensive determination of every matter," Pa.R.A.P. 105(a), I would not
liberally interpret the rules to justify an appellant's complete inaction.
Since appellant wished to treat the December 29 order as a final and appealable
order, he should, at the very least, have filed a notice of appeal from same.
See Nixon; Jones. Nor am I convinced that a different result should obtain
because appellant later filed a petition to vacate the December 29 order. (FN4)
Appellant's belated challenge to the December 29 order cannot serve to enlarge
the time period for appealing the December 29 order. See Pa.R.A.P. 105(b).
Therefore, I would in any event quash the appeal now before us.
FN1. Act of April 2, 1980, P.L. 63, No. 26, Secs. 101-801; 23 P.S. Secs.
101-801 (Supp.1984).
FN2. The Order from which this appeal was brought is final since: "(1) it is
separable from and collateral to the main cause of action; (2) the right
involved is too important to be denied review; and (3) the question
presented is such that if review is postponed until final judgment in the
case, the claimed right will be irreparably lost." sutliff v. Sutliff,
supra, at 499, 474 A.2d at 600, quoting Pugar v. Greco, 483 Pa. 68, 73, 394
A.2d 542, 544-45 (1978).
FN3. The record discloses that appellant's second counsel also withdrew from
representing him due to their incompatability and appellant's failure to pay
legal fees.
-------------------------- Page 496 A.2d 64_ follows ---------------------------
FN4. The dissent would quash the instant appeal since appellant failed to file
a timely notice of appeal from the December 29, 1982 Order. See Pa.R.A.P.
105(b); Hesson v. Weinrebe, 288 Pa.Super. 216, 431 A.2d 1015 (1981)
(appellate courts are without authority to enlarge time period for filing
notice of appeal). However, since no exceptions were taken to the December
29, 1982 order, it was not immediately appealable. In light of the
ambiguity surrounding the appealability of the instant order, (see page 59
text) we feel compelled to reach the merits of this appeal notwithstanding
its unusual procedural posture. We conclude that this result is in the
Copyright (e) West Publishing Co. 1995 No claim to originQl
~.~
I
Pa. Reporter, 481-651 A.2d
Laozkowski, (Pa.super. 1985)
interests of jUdicial economy since the issues have been briefed by both
parties and argued before this Court. Pa.R.A.P. 105(a).
496 A.2d 56, 344 Pa.Super. 154, Laczkowski v.
FN5. Appellant contends that he cannot be held in contempt of court for
noncompliance with a court order since the court lacked jurisdiction and
authority to issue said order. However, since we have already concluded
that the lower court had adequate jurisdiction pursuant to the Divorce Code
to entertain this matter, we need not address this issue as it is totally
meritless. -- .
FN1. The trial court's December 29, 1982, order allowed appellee and the
parties' daughter to reBide in the marital residence during the pendency of
the divorce action.
FN2. I note that, technically, the instant appeal is from the trial court's
order of March 11, 1983, which denied appellant's petition to vacate the
court's previous order of December 29, 1982. That is, appellant timely
filed a notice of appeal from the trial court's order of March 11 but did not
file a notice of appeal from the trial court's order of December 29.
However, my analysis of the interlocutory nature of the December 29 order
applies equally to the trial court's March 11 order. See further discussion
infra of appellant's petition to vacate the December 29 order.
FNJ. Act of April 2, 1980, P.L. 63, 23 P.S. Secs. 101-801.
FN4. Appellant's petition to vacate was filed well after the expiration of the
period for appealing the December 29 order.
Copyright (c) West Publishing Co. 1995 No claim to original u.s. Govt. works.
Pa. Reporter, 401-651 A.2d
Laczkowski, (Pa.Super. 1905)
496 A.2d 56, 344 Pa.Super. 154, Laczkowski v.
--------------------------- Page 4Y6 A.2d 56 follows ---------------------------
Linda Claire LACZKOWSKl
v.
Edward '1'homas I.ACZKOWSKI, Appell ant.
740 Philo. 1983
344 Pa.supor. 154, 496 A.2d 56
Superior Court of Pennsylvania.
Submitted July 19, 1984.
June", 1985.
Reargument Denied Aug. 20, 1985.
Wife filed complaint in divorce against husband. The Court of Common Pleas,
Luzerne County, civil Division, No. 2235-C, Brominski, J., entered an order
giving wife and minor child right to reside in marital residence until equitable
dietribution was made, and further ordered husband to vacate the premises.
After being found in contempt of order, husband appealed, arguing that lower
court lacked jurisdiction to enter such an order. The superior Court, No. 740
Philadelphia, 1983, Tamilia, J., held that: (1) despite failure to take
exceptions to order dispossessing husband from marital residence and granting
exclusive possession to wife during pendency of divorce proceedings or to
perfect an appeal from that order, waiver would not be found in view of facts
that the law on filing exceptions was unsettled at the time and issue of
temporary award of possession of marital residence was an issue of first
impression involving welfare of a child and husband's demonstrated
incompatibility with his attorneys could have motivated prior counsel's failure
to either take exceptions to or appeal the order, and (2) lower court had
authority to temporarily award marital residence, pending equitablE distribution
of marital property, to wife, the spouse having physical custody of minor child.
Aft irmed.
Beck, J., dissented and filed an opinion.
1.
DIVORCE
134
134V
134k278
134k282
k282
Alimony, Allowances, and Disposition of property
Appeal
Presentation and reservation in lower court of grounds of
review.
pa.Super. 1985.
Oespite failure to take exceptions to order dispossessing husband from
marital residence and granting ex<:lusive posllllssion to wile during pendency of
divorce proceedings or to perf(!(,t an appeal fr'om that order, waiver would not be
found in view of facta that the low on filing exceptionB was unsettled at the
time and iSBue of tempol'Ill'Y award of pOflnelHJlon of marital residence wae an
lesue of firet impresaion involving welfare of a child and husband's
demonstrated incompatihillty with his attorneys could have motivated prior
counsel's failure to eithor take exceptiono to or appeal the order.
Copyright (e) Weat Puhliuhinq Cll. IYY'> No claim to oriqinal U.S. Govt. worke.
..
DEBORAH P. FITZSIMMONS,
Plaintiff
IN TilE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSVLVANIA
VB.
CIVIL ACTION - LAW
NO. 95-'" ;1 CIVIL TERM
IN DIVORCE
FLOVD S. FITZSIMMONS,
Defendant
AND NOW,
consideration
_ ~DER OF COURT
this lIY~a~ of May, 1995, upon presentation and
of the within Petition, a Rule is hereby issued
upon the Defendant, Floyd S. Fitzsimmons, to show cause, if any
he has, as to why exclusive pos(Jession of the parties' former
marital residence at 249 Neil Road, Shippensburg, Cumberland
county, Pennsylvania, should not be granted to the Plaintiff,
pending further Order of Court.
RUle returnable at a hearing to be held on 1 (U J, .,I.'.'Y' the
> ""
)" day of
Courtroom No. :;
)"t'Y , 1995, at -~ ,", o'clock, /) .m., in
Cumberland county courthouse, carlisle,
Pennsylvania.
Pending further Order of Court or agreement of the parties,
the Defendant, Floyd s. Fitzsimmons, is excluded from the former
marital residence at 249 Neil Road, Shippensburg, Cumberland
county, Pennsylvania.
service to be made by certified mail, restricted delivery,
or personal service upon the Defendant.
J.
vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
DEBORAH P. FITZSIMMONS,
Plaintiff
FLOYD S. FITZSIMMONS,
Defendant
NO. 95- ..., r,',
IN DIVORCE
CIVIL TERM
PETITION FOR EXCLUSIVE POSSESSION
AND NOW comes Plaintiff, Deborah P. Fitzsimmons, by and
through her counsel of record, Bradley L. Griffie, Esquire, and
petitions the Court as follows:
1. Your Petitioner is Deborah P. Fitzsimmons, the above
named Plaintiff in the divorce action initiated contemporaneously
with the filing of the within Petition for Exclusive possession,
and an adult individual currently residing at 249 Neil Road,
Shippensburg, Cumberland county, Pennsylvania.
2. Your Respondent is Floyd s. Fitzsimmons, the above named
Defendant and an adult individual currently residing at 2147
Hafer Road, Fayetteville, Franklin county, Pennsylvania.
3. The parties had resided at the aforementioned addrdSS of
249 Neil Road, Shippensburg, Cumberland County, Pennsylvania,
since approximately 1985.
4. The Respondent vacated the parties' former marital
residence on or about April 18, 1995, securing a new residence
with his relatives in Fayetteville, Franklin County, as
aforesaid.
5. The parties are the natural parents of one child,
Samantha Skye Fitzsimmons, age 14, who has resided in the marital
residence and continues to reside in the marital residence with
Petitioner.
6. Respondent has been verbally abusive to the Petitioner
and to the parties' minor daughter and has made statements that
cause the Petitioner and the minor daughter to fear for their
safety.
7. Respondent has recently threatened Petitioner, advising
her that he will be moving back into the marital residence
despite the marital conflicts and the harm it is having upon the
parties' minor daughter.
8. Respondent has recently indicated no one will stop him
from re-entering his home and residing in "his home".
9. The Petitioner, while gainfully employed, does not have
sufficient funds to provide for her and her daughter's necessary
day-to-day needs and is in need of child and spousal support to
assist her in meeting her daily needs.
10. Petitioner has no ability whatsoever to secure a new
residence outside the parties' former marital residence.
11. The Respondent, by his actions, has already shown that
he has the ability to secure a new residence and has so secured a
residence for approximately one month.
12. The Respondent's threats and the fear that is held by
the minor child is having a negative impact upon the partie.'
minor child and will continue to have an impact upon the parti..'
minor child until such time as an agreement is reached or an
Order is entered to provide for the Respondent to refrain froll
entering upon the former marital residence.
13. The Respondent has made other threats that cause the
Petitioner to be concerned that the Respondent may enter upon the
premises and remove personal property belonging to the Petitioner
or the Petitioner's daughter or otherwise damage the property
presently under the Petitioner's control.
WHEREFORE, Petitioner requests your Honorable Court to enter
an Order providing for her to have exclusive possession of the
parties' former marital residence located at 249 Neil Road,
Shippensburg, Cumberland County, Pennsylvania.
Respectfully submitted,
, ASSOCIATES
/
e
re
./
I verify that the statements made in the foregoing document
are true and correct. I understand that false statements herein
are made subject to the penalties of 18 Pa.C.S. Section 4904,
relating to unsworn falsification to authorities.
DATEl 5'/" (IS
if.. b'llj/ Jl ~.. i~JII (/1-)
EBORAH P. FI ONS
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Bradley L. Grime, Esq,
200 North Hanover Street
Carlisle,I'A 17013
Allorney lbr I'laintifl'
James J, Kayer. Esq.
Liberty Loll
4 E, Liberty Avenue
Carlisle.I'A 17013
Attorney lor Defendant
:rc
~, 'Ibe parties havc becn involvcd in various support procecdlngs wherein
Mr. Kaycr is allomey of record,
6. lbere erc ongoing ncgotiations between counsel and the parties to try fo
resolve the economic aspects offhls case,
7. The parties and counsel for the parties believc that this mailer can be
resolved by agreement given sumdent time to address the present
economic circumstances of the parties,
WHEREFORE, I'etitioner requests Your Honorable Court to remove the above-
captioned case from thc Pa, RJ,A. Section 190 I inactive list which is scheduled fo be
reviewed by tbe Court on October 29, 1998 at 9:30 a,m, in Court Room No, loffhe
Cumberland County Courthouse.
Respectfully submitted,
GRIFfolE & ASSOCIATES,
'me. Esquire
e or Plaintiff
200 rth Hanover Street
Carlisle. PA 17013
(717) 243-~~~1
1-800-347-~~~2
VER....ICATION
I verilY that the statements :nade in the foregoing Petition are true and correct. I
understand that lilse statements made herein arc subject to the penalties of 18 Pa, C.S.
Section 4904 relafing fo unswom falsification to aUfhorities,
DATE:
DEBORAH I' FITZSIMMONS.
Plaintin'
IN TilE COURT OF COMMON PLEAS OF
rUMUEIU.AND COUNTY, I'ENNSL YV ANIA
vs,
, CIVIL ACTION - LAW
FLOYD FITZSIMMONS.
Defendant
NO, 95-2697 CIVIL TERM
CERTIFICATE OF SERVICE
I certifY that I sent a true and correct copy of the Order of Court and Rule fo Show
Cause dated October 27. 1998 to:
JAMES J KA YER. Esquire
Allorney tor Defendant
4 Liberty Avenue
Carlisle, I'A 17013
by first class mail. postage prepaid on November !L. 1998
sq
Ii alntlfT
200 Illanover Street
Carlisle, I'A 17013
(717) 243-5551
(800) 347-5552
DEBORAH 1', FITZSIMMONS, IN THE COURT OF COMMON PLEAS OF
Plaintin' . CUMBERLAND COUNTY. PENNSYLVANIA
VS, . CIVIL ACTION - LAW
FLOYD S, FITZSIMMONS. . NO. 95-2697 CIVIL TERM
Dcfcndant ' IN DIVORCE
~RJ)ERO~J
AND NOW this t-f-!5- day of ~ ,1999, thc attachcd
Domcstic Rclations Ordcr is approvcd by this. thc Court of Common Picas ofCumbcrland
County. Carli sic. Pcnnsylvania, pursuant to thc rcqucst ofthc partics,
BY THE COURT.
J.
WHEREAS, this Ordcr is intcndcd to bc a Qualilicd Domcstic Rclations Ordcr
(hcreinafler "QDRO"). as that tcrm is dclined in Section 414(1') of the Intcrnal Revcnue
Code and Section 206(d)(J) of ERISA
NOW THEREFORE. IT IS ORDERED AND DECREED AS FOLLOWS:
I, The parties intcnd for this Order to constitute a "Qualif1ed Domcstic Relations
Order" as def1ned in Section 414(1') of the Internal Revenue Code of 1986. as amcnded,
2, This Order applies to the following qualif1ed retirement plan: Civil Service
Retirement Systcm Plan (hcreinafler referrcd to as the "Plan")
3, Floyd 5, Fitzsimmons, social security number 177.42-3684. (hereinafler
referred to as "Participant") is a participant in the Plan
4, Deborah 1', Fitzsimmons, social security number 161.50.9112, (hereinafter
referred to as .. Alternate Payee") is the Participant's spouse, bcing married on November
2.1974,
5, Participant's date of birth is November 25, 1949 his last known mailing address
is 19 Lincoln Drive. Fayetteville, Pennsylvania 17222,
6, Alternate Paycc's date of bil1h is March 29, 1954 and her last known mailing
address Is 56 Rustic Drive, Shippensburg, Pennsylvania 17257,
7, A portion of the Participant's account in the Plan is marital property subject 10
distribution by the COllrt of Common Pleas of Cumberland County, Pennsylvania, the
Court of jurisdiction ovcr thc parties pcnding divorce proccedings Alternate I)ayee is
Participant's spouse
8, Participant is in pay stalus relative to receipt of funds from the Plan and has
e1cctcd a distribution from thc Plan that does not providc for a Survivor Bcncfit, This
sclcction is acknowledgcd by thc partics,
9, Participant rctired from his cmployment with thc Fcdcral Governmcnt enectivc
Deccmbcr 29. 1997, Pursuant to thc agrecmcnt ofthc partics. thc United States Omce of
I'crsonnel Managcmcnt is dircctcd to immediately dcsignate the sum of ONE HUNDRED
SEVENTY TWO and 00/100 (5172.00) DOLLARS pcr month as Alternate Payce's
portion of the marital portion Participant's monthly nct rctircment bcncfit to which
Alternatc Payec is cntitled This portion of Participant's monthly bencfit is duc and owing
to thc Altcrnate Paycc and shall be so paid dircctly from the United States Omce of
Personnel Management or its design at cd pay ccnter or appropriate fcdcral personnel omce
to Altcrnate Payce, This portion of thc rctircmcnt benefit reccivcd by the Alternate Payee
is subject to all cost of living allowanccs or increases from thc date of implementation
through the duration of thc payments required hercin, Payments to Alternate Payce so
designated shall be so distributcd effective with thc first annuity payment made following
rcceipt and approval of the within Ordcr by thc United States omcc of Personnel
Management,
10, Thc "marital portion of Participant's monthly bcnefit" as that phrase is uscd
herc, it is hercby dcsignatcd to bc the sum of SEVEN HUNI>RED EIGHTY SEV.:N
and 00/100 (5787.00) J)OLLARS, Paymcnts of monthly bcncfits to the Altcrnate I'aycc
shall coincidc with paymcnts of benefits to thc Participant and shall continuc as long as
Participant is alivc, Thc fcderal statc and local taxcs applicablc to this distribution shall
havc bccn paid by thc Participant bcfore rcceipt, thcrcby. providing that the paymcnts
received by Alternate Payee shall be tax Iree Any taxes required to be withheld by the
Federal Government from the disbursement shall be withheld from the gross amount
referenced as the marital portion of the Participant's monthly benefit. thereby providing
for distribution of exactly ONE 1Il1NDRED SEVENTY lWO 00/100 (5172.00)
DOLLARS plus appropriate cola increases, to the Alternate Payee
II. In the event of death of the Alternate Payee. the payments or distribution to be
made hereinabove to Alternate Payee shall be paid to the estate of Alternate Payee for the
remainder of the period of distribution of retirement proceeds, or as long as otherwise
permined by law
12, Participant shall have no right or authority to modify the distribution provided
for herein to the Alternate Payee,
\3, The remarriage of the Alternate Payee shall not allect her receipt of benefits,
payments or distributions as herein described,
14, This Order shall not require the Plan to approve any type or form of benefit,
or option not otherwise provided under the Plan; or require the payment of any benefit for
the Alternate Payee which are required to be paid to another Alternate Payee under
another Order previously determined to be a Qualified Domestic Relations Order; or
require the Plan to provide increased benefits which result from future contributions to the
Plan Any provision of this Order which appears to be otherwise shall be null and void
and have no ell'cct
15, In no evcnt shall thc Altcrnate Payee have a greater right than those which are
available tllthe Participant
16, Exccpt as othcrwisc statcd hcrein. any reasonablc cost inculTcd by the Unticd
Statcs Oflice of Personnel Managemcnt to cOectuate the ternlS and provisions of this
Order may be assessed against that party requiring the servitudes of that Ollice of
Personnel Management. otherwise, such expenses shall be divided equally between them,
17, The parties shall promptly submit this Order to the United Statcs Ollice of
Personnel Management for approval as a Qualified Domestic Relations Order,
18, A copy of this Order shall be mailed promptly, return receipt requested, to the
United Slatcs Ollice of Personnel Management. If Ihis Order has bcen predetennined by
United States Omce of Personnel Management to constitute a Qualified Domestic
Relations Order. that Ollice shall properly carry out the provisions, If this Order has not
been predetcrmined by the United States Ollice of Pcrsonnel management as a Qualificd
Domestic Relations Order, thcnlhat Omce shall, within a reasonable time aileI' the receipl
of this Order, determine whether this Order is a Qualified Domestic Relations Order and
notifY both the Participant and Alternate Payee of such a determination, Until such time
as a detennination has bcen made. the United States Ollice of Personnel Management shall
comply with all requiremcnts imposcd upon him by Section 404(p)(7) of Ihe Code and
Seclion 206(d)(3 )(h) of ERISA If the United Statcs Omce of Personncl Management
detennines that this Order is not a Qualil1ed Domestic Relations Ordcr. then he shall notify
the Participant and Alternate Payce of such a detcrmination and rcason therefore,
19 In the event that any provision of this Order prcvcnts this Ordcr from
qualifying under the requiremcnts of thc Plan I'lli' the division in transfcr of the retirement
annuity of Participant pursuant to ledcral law, the parties shall cooperate to have this
Order modificd to mcet the requiremcllts of the Plan Cllllsistclltly with the intent of this
Order said modilications. if any. to be entcred nunc pro tunc, The Court of COl1ll1lon
Pleas of Cumberland County. Pennsylvania. hereby cxpressly reserves jurisdiction over the
parties and the subject mallcr of this Order for the limited purposes of amending this
Order for compliance with the requiremcnts of the Plan and for the purposes of
supervision and enforcement,
20, A certified copy of this Order shall be forthwith served upon the United States
of America. Office of I'ersonnel Management. Office of Retirement Programs, Said Order
shall take elrect immediately and shall rel1lain in eOcct until further Order of the Court.
IT IS INTENDED THAT THIS ORDER SHALL QUALIFY AS A QUALIFIED
DOMESTIC RELATIONS ORDER AS SUCH AS DEFINED UNDER SECTION
414(p) INTERNAL REVENUE CODE OF 1986. AS AMENDED, The court retains
jurisdiction to amend this Order as might be necessary to cstablish or l1Iaintain its status as
a Qualified Domestic Relations Order,
WITNESS:
.~2J~
1( Url',,/\ j) 1. \',S.,JlIIII.lI-.J
Deborah I', Fitzsimmons"
d~
. ,Esquire
.. ,. J ;, 0/
James ~ayer, ~squi{e'
I I
I /
I' . (/9
~'>
Datc
,
DEBORAHI'. FITZSIMMONS,
Pluintiff
: IN THE ('OlJlrJ' OF COMMON PLEAS OF
: CUMBERLAND COUNTY. PENNSYLVANIA
v.
: CIVIL ACTION. LAW
FLOYD S, FITZSIMMONS,
Defendunt
: NO, <)5-2(197 CIVIL TERM
: IN DIVORCE
AND NOW this
ORDEI{ OF COUln
r : of ~ I ~~~~ the alluehed Amended
Qualified Domestic Relations Order is approved by this. the Court of Common Pleas of
Cumberlund County, Carlisle. Pennsylvania. pursuunt to the requests of the parties, and prior
Order of Court duted March II, I <)1)1). is hcrchy so amcndcd. Thc Court retains jurisdiction ovcr
this Domestic Relations Order to amcnd, us nccessury und to cstahlish or maintain its
quulifications as a Qualificd Domcstic Relations Ordcr undcr ERISA and Part 1l31l of Titlc 5,
Code of Fcderal Regulations,
BY TIlE COURT.
,I! (:y.J.Li.:.J, / II wJ j
llC) {)O
1\ J.!
r I(J
~.
J.
WIIEREAS. this Ordcr is intcndcd to bc u Quulilicd Domcstic Rclutions Ordcr
(hcrcillullcr rcfcrrcd to liS "QDRO"). liS tllllt tcrlll is dclincd in Scction 414(p) of thc Intcrnlll
Rcvcnuc Codc IInd SCI'tion 20(,(d)(3) of EIUSA,
WHEREAS, thc pllrtics hllvc prcviously cntcrcd illlolln agrccmcnt which WIIS cndorscd
by thc court us a t)DIU) dutcd Murch II, 1999, u copy of which is ultuchcd hcrcto und
inCo'110rutcd hcrcin by rcfercncc us Exhibit "A," which Ordcr thc partics rcqucst bc IImcndcd
through thcn cntry ofthc within Ordcr.
NOW TIIEI{EFORE. IT IS ORDEI{ED AND DECREED AS FOLLOWS:
I, Thc par1ics intcnd for this Ordcr to constitutc a "Qualilicd Domcstic Rcllltions Ordcr"
us dclincd in Scction 414(p) ofthc Intcrnal Rcvcnuc Codc of 19116,as umcndcd,
2. This Ordcr IIpplics to thc following qualilicd rctircmcnt pllln: Civil Scrvicc
I{etircmcnt Systclll PI un (hcrcinallcr rcfcrrcd to liS thc "1'lan").
3. The Court hus considcrcd thc rcquircmcnts und stundanltcnninology provided in part
1l31l of Titlc 5, ('odc of Fcdcrul Rcgulations, Thc tcrminology uscd inthc provisions
of this Ordcr that conCl'rn bcnclits undcr thc Civil Scrvicc Rctirclllcnt Systcm urc
govcrncd by thc standard convclltion cstublishcd in that PUI1,
4, Floyd S, FitlsillllnOlls. socilll sccmity lIumbcr I 77-42-361l4, (bcrcinullcr I'l'lcrrcd to
us "1'U11icipant") is u participant intbc Plan,
5, Dcborah I', l'illsimmolls, sociul sccmity numhcr 161-50.9112, (bcrcinullcr rclcrrcd
to liS "Allcl'lllltc Puycc"l is thc I'urticipunl's SpOIlSC, bcing Illurricd on Novcmbcr 2,
)974,
(" PllrtiClpUI1l's dulc (If blltll IS Novcmbcr 25, I 'WI, und his lasl kllownnlililing IIddrcss
is 19 I.ml'llln DIIIC, I'aycltcvillc, PA 17222,
7. Altcnmte Payee's datc ofbil1h is March 29.1954. and hcr last known mailing addrcss
is 56 Rustic Drive. Shippensburg, PA 17257.
8. Parties wcrc marricd on Novcmber 2, 1974. in Franklin County. Pennsylvania and
continue to be husband and wile wuiting thc entry of a Decrce in Divorce in thc
abovc rcferencc procccdings.
9. A portion of thc Purticipant's account in thc Plan is marital property subject to
distribution by thc Court of Common Picas of Cumberland County.Pcnnsylvania. the
Court of jurisdiction over the parties pcnding divorce proccedings, Altcmatc Payce is
Participant's spouse.
10. Purticipant is in pay status rclativc to rcccipt of funds from the Plan and has electcd a
distribution from the Plunthat docs not providc for a Survivor Bcncfit. This sclcction
is ucknowlcdged by thc partics.
I\. Purticipant rctircd from his employmcnt with the Fcderal Govcmmcnt cffcctivc
Deccmber 29. 1997, Pursuant to the ugrccmcnt of the pal1ies, thc Unitcd Statcs
Officc of Pcrsonnel Managcmcnt is directcd to immediately dcsignatc thc sum of
ONE IfUNDltED SEVENTY TWO Ilnd UOIIUO DOl..l..AltS ($\72.UO) pCI' month
as Altcmatc Puycc's portion of the marital portion Participunt's monthly nct
retircmcnt bcnclitlo which Allcmatc Paycc is cntitlcd, This portion of Participant's
monthly bcnclit is duc and owing 10 thc Allcl11atc Paycc and shall bc so paid dircctly
Irom thc Unitcd Statcs Oflicc of Pcrsonncl Munagcmcntor its dcsignatcd puy ccntcr
or approprialc rcdcrul personncl oflicc to Allcll1atc Payce,
12, The "marital portion of Participanl's monthly hcnclit" as that phrusc is used hcrc, it is
hcrchy dcsignutcd to hc thc slim of SEVEN IIlINlHtEU EIGIITY SEV.:N And
OIl/IIlIlIlOLl.AltS ($787.1111), Puymcnls of monthly hcnclils 10 thc Allcrnulc Paycc
shall coincidc with paymcnls 01' bcncnts to thc Parlicipanlanu shall conlinuc us long
as Participant is alivc, Thc I'cdcrnl, slutc und loeultaxes applicablc tothis distrihnlion
shall havc bccn puid by lhe Purtieipant belilrc rcccipt. lhcrcby. providing lhat thc
paymcnts rcecivcd hy Altclllutc Payce shull hc tax I'rcc, Any laxcs rC4uircd to bc
withheld by thc Fcdcral Govcrnmcnt Ihlln thc disburscmcnt shull bc withhcld Irom
thc gross amount rcfcrcnced as tilc marilal pOrlioa of lhc Participant's monlhly
bcncfit. thcrchy providing for distrihutionol' cxactly ONt: IIUN()ImU SEVENTY
TWO and 00/100 1l0LLAHS ($172.00) tolhc Altcrnatc Puyec,
13. Participant is cligiblc for rctircmcnl bcncnts nndcr thc Civil Scrvicc RClircmcnt
Systcm bascd upon cmploymcnt with thc Unitcd Statcs Govcrnmcnt. Allcrnatc Payee
is cntitlcd to ONE IIUNIlI{EU SEVENTY TWO IInd 00/100 UOLLAHS ($172.00)
pcr month fromlhe Participanl's Civil Scrviec Rclircmcnt bcnents us sct forth abovc.
Whcn lhc COLA's arc applicd to thc Participunt's rctircmcnt bcncnts. thc samc
COLA applics to Allclllalc Paycc's sharc, Thc Unitcd States Officc of Pcrsonnel
Managcmcnt is dircctcd to pay Allclllulc Payec's sharc dircetly 10 Allcmutc Paycc,
14, Inthc cvcnl of dcuth of thc Altcrnatc Paycc. thc paymcnts or dislrihution 10 bc madc
hcricnubovc to Altcmutivc Paycc shull bc puid tolhc cslalc of Altclllutc Paycc for thc
rcmaindcr of lhc pcriod of distribution of rctircmcnt procccdings, or as long us
othcrwisc pcnnitlcd by law.
15, Participant shall havc no righl or uuthority to modify thc dislrihution providcd for
hcrcinto thc Altcrnatc Puycc,
If>, Thc rcmarriage of the Alternulc Puyec shull nol uffccl hcr rcccipt of bcncnts,
paymcnts llI' dislrihullons us hcrcin dcscrillCll.
17, This Orllcr shallnolrcquir'l' lhc Plan 10 appl'\ll'c any typc 01' Iimll of hCllCtit, 01' option
lIo1othcrwisc prol'illcllunllcrthc l'lan; Ill' rcquirc thc paymcnt of allY hcnctit 101' lhc
Altclllatc I'aycc \\hkh arc Icquircll III hc paill to anothcr Allcl'llatc Paycc unllcr
anothcr Oldcr prcl'iously dClcrmincd 10 hc a ()ualiticd Domcstic Relations Ordcr. lII'
rcquircd thc Plan 10 pl'\ll'idc incrcascd hcnctits whkh rcsulllilllll Iillurc Cllntrihutions
lothc Plan, Any prol'isions of this Ordcr which appcars to hc othcrwisc shall hc null
and I'oid and hal'c no cllcc!.
I K, In no cl'cnt shall thc Altcl'llatc I'aycc hill c a grcatcr right that thosc which arc
availahlc 10 thc Parlieipanl.
II), EM'cpt liS othcrwisc slatcll hcrein, any rcasonllbk l'llsl incuncd hy thc Unitcll Slatcs
omcc of 1'L'rsonncl Managcmcnt tll cllcctuatc thc tCl1l1S and prol'isions of this Orllcr
may bc asscsscd agaillst that parly rcquircd thc scrvitudcs of that Otlkc of I'crsonncl
Managcmcnt, othcrwisc. such cxpcnscs shall hc dil'idcd cqually bctwccn thcm,
20, Thc pal1ics shall promptly suhmit this Ordcr 10 thc Unitcll Stutc Otlkc of I'crsonncl
Munugcmcllt fill' approval as a Qualiticd Domcstic 1{e1ations Ordcr,
21. A copy of Ihis Ordcr shall hc l11uilcd promptly, rctul'llcd rcceipl rcqucstcd. tll thc
Unitcd Statcs omcc Pcrsollllel MUllagcf11cn!. I I' this Ordcr has bccn prcdctcmlincd
hy Unitcd Statcs OUkc of Pcrsollllcl Mallagcmclllto cllnslitutc u ()ualiticd DOlllcslic
Hclulions Ordl"r, that OUkc shall propcrly carry outthc proVisions, If this Orllcr hus
not hccn prcllctcllllincll by Ihc Unitcd Statcs OUkc of I"'lsollnel Managcmcnt as"
Qualiticd DllIllcslic 1{e1atlolls Onll'l, thcn Ihat omcc shall, withill a Icasollahlc timc
uncI' thc rcccipt of this Oilier. ,1L'll'lll1II1C \\ hL'lhl"l thIS Ordcr is u ()ualificd Dmllcstic
I{clations Ordcr alld lIotrly hlllh Ihc I'artrl'lpanl a 11I1 Altl'lnulc Paycc of such II
dctcnllmallon, IIl1trl sllch 11111\' as a dctcllllillatrllll hus hl'l'1I mude, thc IInitcd Slutcs
omcc of Pcrsonncl Managcmcnt shall comply with all rcqnircmcnts imposcd upon
him by Scction 404(p)(7) of thc Codc and Scction 206(d)(3)(h) of ERISA. If thc
Unitcd Statcs Officc of Pcrsonncl Managcmcnt dctcrmincs that this Ordcr is not II
Qualilicd Domcstic Rellltions Ordcr, thcn hc shall notify thc Participllntllnd Altcnllltc
pllYcc of such dctcnllinlltion and rCllson thcrclllrc,
22, In thc cvcnt that IIny provision of this Ordcr prcvcnts this Ordcr fonll qUlllifying
undcr thc rcquircmcnts of thc Pllln for thc division in trnnsfcr of thc rctircmcnt
IInnuity of pllrticipllnt pursullnt to fcdcrallaw. thc partics shall coopcratc to havc this
Ordcr modilicd to mcct thc rcquircmcnts of thc Plan consistcntly with thc intcnt of
this Ordcr said modificlltions, if any, to bc cntcrcd nunc pro lunc, Thc Court of
Common Picas of Cumbcrland County. Pcnnsylvania, hcrcby cxprcssly rcscrvcs
jurisdiction ovcr thc partlcs and thc subjcct mallcr of this Ordcr for thc Iimitcd
purposcs of amcnding this Ordcr for compliancc with thc rcquircmcnts of thc Plan
IInd for thc purposcs ofsupcrvisionllnd cnforccmcnt.
23. A ccrtificd copy of this Ordcr shall bc forthwith scrvcd upon thc Unitcd Stlllc of
Amcrica. omcc of Pcrsonnel Managcmcnt, Officc of Rctircmcnt Programs, Said
ordcr shall takc cffcct immcdiatcly IIml shall rcmllin in cffcct until furthcr Ordcr of
Court.
24, Our Ordcr prcviously cntcrcd in this mallcr on Mllrch II, 1999, a copy of which is
1I11achcd hcrcto and incurporntcd hcrcin by rcfcrcncc as Exhibit "A," is hcrcby
vacatcd and the withinllmcndcd QDRO shall havc fulllhrcc and cffcct.
25. Thc partics rcqucstthc Court to retain jurisdictionovcr this Domcstic Rclations Ordcr
to amcnd, liS ncccssary, and to cSlllblish or mllintllin its lJualiliclltion liS u Quulilicd
Domestic Relations Onler nnder ERISA and Part l!3l! of Tille 5. Code of Fedcral
Regulations.
IT IS INTENDED TIlA T TillS ORDER SIlALL QUALIFY AS A QUALIFIED
DOMESTIC RELATIONS ORDER AS SUCIl AS DEFINED UNDER SECTION 414(p)
INTERNAL REVENUE CODE OF Il)H6 AS AMENDED, The Court retains jurisdiction to
amend this Order liS might be nccesslIry to eSlllblish or maintain its status as a Qualilied
Domestic Relations Order.
WITNESS:
I ~- - (TV
DATE
.
II
uirc
I?A~ltrj
~
---1
Jm;r J. K~
COMMONWEALTH OF PENNSYLVANIA
. I
COUNTY OF (d fIl lie/I'O /1('/
On this Il+'- duyof ] l\ \ \ L \ II ~\..) , ~~~ bclore me. the undcrsigncd
ofliccr. pcrsonally appeured DEBORA II P. FITZSIMMONS, known to me (or sutisfaetory
provcn) to be thc pcrson whosc name is subscribed to thc within Agrccmcnt and acknowlcdgcd
thut she cxccutcd thc samc lor the purposc thercin containcd,
IN WITNESS WHEREOF,I hercunto set my hand IInd ol1icial seal.
--
Karl ~ut.fl.t' f~>I'
01...." J Lr~" " ""I \'" "ublle
My ~~~I~n '~~~i:~;iA~~,~
COMMONWEAL TII OF PENNSYLVANIA
COUNTY OF U( w/x d a W' r
On this dl day of 1Je ('f I/,b: (
. 1999, bcfore me, thc undcrsigncd
ofliccr. pcrsona\1y appearcd f'LOt'D S. FITZSIMMONS. known to mc (or satisfactory provcn)
to be the person whose nume is subscribcd to the within Agrecmcnt und Ilcknowledged that he
cxccuted thc same lor the purpose therein contained,
IN WITNESS WIIEIH~OF, I hercunto selmy hand and ol1iciul scal.
NOTARIAL SEAL \
DtNlSE I'INAMONTI, Nolsoy Publll, "
Carlisle OOlOugh. Cumbllland County
MV Comm.lIlon hptrel Nav 20, 2~
I ( 'j
,__~'t {l J( fJj;n IKf I--h
DEBORAH P. FITZSIMMONS, . IN THE COURT OF COMMON PLEAS OF
Plaintiff : CilltffiERLAND COUNTY. PENNSYLVANIA
vs. : CIVil. ACTION - LAW
FLOYD S, FITZSIMMONS, : NO. 95-2697 CIVll. TERM
Defendant : IN DIVORCE
2JtPER OF COURT
AND NOW this / ,J).. day of _1r1 0.1...1"
. 1999. the attached
Domestic Relations Order is approved by this, the Coun of Common Pleas of Cumberland
County. Carlisle. Pennsylvania. pursuant to the request of the parties.
BY THE COURT.
1-5/ ~~ d', IJ~ll>#/
],
T~"~ r:ro:?y F~~~I' -.;:,- -'",',)
,,:-,rJ
.. . . ~ . ..:. -. . --.. ;. .
ri,; 1\;1."- C"i ;f /11(1.'-', ;?'i~..
....""..~t"'..L~ C\ . J~~....""..._
;C'cf--tJ' Prolllcnotary
EXIITTlI'l' "II"
DEBORAH II FITZSIMMONS,
PlainlllT
IN THE COURT OF COMMON PLEAS OF
CL~mERLAND COUNTY, PENNSYL V ANlA
vs,
CIVIL ACTION - LAW
FLOYD S FITZSIM1I.IONS,
Defendant
NO 95-2697 CIVlL TERM
IN DIVORCE
OUALlFlED DOMESTIC R[LATION~ ~RDER
WHEREAS, FLOYD S. FITZSIMMONS, (hereinafter referred to as
"Participant") and DEBORAH P. FITZSIMMONS, (hereinafter referred to as
"Alternate Payee) bave agreed to a division of marital property. which Agreement includes
provision for a distribution from the Participant's account in the Civil Service Retirement
System (hereinafter referred to as the "Plan"), and
WHEREAS, this Qualified Domestic Relations Order (hereinafter referred to as
the "Order") provides for the division and disposition of the marital componenu of the
Participant's account in the Plan, which is a benefit sponsored by the Participant's
employment with the United Slates of America. Depanment of the Navy. Defense
Logistics Agency, Mechanicsburg. PeMsylvania, 17055,
WHEREAS. Social Security Number of the Panicipant, Floyd S Fitzsimmons, is
177-42-3684, whose date ofbinh is November 25. 1949, and whose initial date of hire is
December 6, In:.
WHEREAS, Pal1lClpant. Floyd S FltlSllnmOns, mtends to grant the Alternate
Payee, Deborah P Fitzsimmons, rights to such benetlts in such amounts on the tenns and
conditions prescribed hereinafter as pro~ided for in the Plan, and
WHEREAS, this Order is intended to be a Qualilied Domestic Relations Order
(hereinafter "QDRO"), IU lhatterm is defined in Section 414(p) of the Internal Revenue
Code and Section 206(d)(3) of ERISA
NOW THEREFORE. iT IS ORDERED AND DECREED AS FOLLOWS
I, The panies intend for this Order to constitute a "Qualified Domestic Relations
Order" IU defined in Section 4i4(p) ofllle Internal Revenue Code of 1986, IU amended,
2 This Order applies to lIle foUowing qualified retirement plan: Civil Service
Retirement System Plan (hereinafter referred to IU the "Plan"),
3, Floyd S FitzSimmons. social security number 177-42-3684, (hereinafter
referred to as "Participant") is a participant in the Plan.
4 Deborah P Fitzsimmons, social security number 161-50-9112, (hereinafter
referred to as "Alternate Payee") is the participant's spouse, being married on November
2,1974,
5, participant's date of birth is November 25, 1949 his last known mailing address
is 19 Lincoln Drive. Fayetteville. Pennsylvania 17222
6 Alternate Payee's date of binh is ~tarch 19, 1954 i1I1d her last known mailing
address is 56 Rustic Drive. Shippensburg, Pennsylvania 17257
7 A portion of the Participi1l1t' 5 account in the Pli1l1 is mania! property :;ubJect to
distribution by the Coun of Common Plea, of Cumberli1l1d County, Pennsylvi1I1ia. the
Court of Jurisdiction over the panies pending divorce proceedings Alternate Payee is
Participant's spouse
8 Participant is in pay status rei alive to receipl of funds Irom the Plan and has
elected a distribution from the Plan that does not provide for a Survivor Benefit. This
selection is acknowledged by the parties
9, Participant retired from his employment with the Federal Government effective
December 29. 1997 Pursuant to the agreement of the parties. the United States Office of
Personnel Management is directed to immediately designale the sum of ONE HUNDRED
SEVENTY lWO Ind 00/100 ($172.00) DOLLARS per month as Alternate Payee's
portion of the marital portion Participant's monthly net retirement benefit to which
Alternate Payee is entitled, This portion ofPanicipant's monthly benefit is due and owing
to the Alternate Payee and shall be so paid directly from the Unifed States Office of
Personnel Management or its designated pay center or appropriate federal personnel office
to Alternate Payee, This portion of the retirement benefit received by the Alternate Payee
is subject to all cost of living allowances or increases from the date of implementation
through the duration of the payments required herein, Payments to Alternate Payee so
designated shall be so distnbuted effective with the tirst annuity payment made following
receipt and approval of the within Order by the L"nited States Office of Personnel
Management.
\0 The "marital pomon ot' Participant's monthly benetit" as that phrase is used
here, it is hereby designated to be the sum or SEV'E~ HC',DRED EIGHTI' SEVE:'\'
and 00/100 ($787,00) DOLLARS Payments or monthly benefits to the Alternate Payee
shall coincide with paymenls of benetits to thl! Pamclpant and shall continue as Ion!! as
Participant is aJjve, The federal state and local taxes applicable to this distribulion shall
have been paid by thl! P:lf11cipam berore recl!lpt. thereby, prOViding that the payments
, .
received by Alternate Payee shall be tax tree, Any taxes required to be withheld by the
Federal Government Irom the disbursement shall be withheld ITom the gross amount
referenced as the marital portion of the Panicipant's monthly benefit. thereby providinB
for distribution of exactly ONE HUNDRED SEVENTY TWO 00/100 ($172.00)
DOLLARS plus appropriate cola increases, to the Alternate Payee,
II. In the event of death of the Alternate Payee. the payments or distribution to be
made hereinabove to Alternate Payee shall be paid to the estate of Alternate Payee for the
remainder of the period of distributioo of retirement proceeds. or as long as otherwise
permined by law,
12, Panicipant shall have no right or authority to modify the distribution provided
for herein to the Alternate Payee,
13, The remarriage of the Alternate Payee shall not affect her receipt of benefits.
payments or distributions as herein described,
14, This Order shall not require the Plan to approve any type or tbnn of benefit.
or option not otherwise provided under the Plan, or require the payment of any benefit for
the .\Jternate Payee which are required to be paid to another ,\Jternate Payee under
another Order previously detennined to be a Qualified Domestic Relations Order; or
require the Plan to provide increased benefits which resultlTom future contributions to the
Plan Any provision of this Order which appears to be olhemise shall be null and void
and have no effect
15 In no event shall the Alternate Payee have a greater right than those which are
available to the Panicipanl.
16 E1<cept as otherwise slated herein, any reasonable cost incurred by the Untied
States Office of Personnel ~Ianagement to effectuate the tenns and provisions of this
Order may be assessed against that party requiring the servitudes of that Office of
Personnel Management. otherwise. such e1<penses shall be divided equally between them.
17, The panies shall promptly submit this Order to the United States Office of
Personnel Management for approval as a Qualified Domestic Relations Order
18 A copy of this Order shall be mailed promptly. return receipt requested. to the
United States Office of Personnel Management. If this Order has been predetennined by
United States Office of Personnel Management to constitute a Qualified Domestic
Relations Order, that Office shall properly carry out the provisions, If this Order has not
been predetermined by the United States Office of Personnel management as a Qualified
Domestic Relations Order, then that Office shall, within a reasonable time after the r~eipt
of this Order, detennine whether this Order is a Qualitied Domestic Relations Order and
notifY both the Panicipant and Alternate Payee of such a determination, Until such time
as a detennination has been made. the United States Office of Personnel Management shall
comply with all requirements imposed upon him by Section ~04(p)(7) of the Code and
S~tion 206(d)(3)(h) of ERISA. If the Cnited States Office of Personnel :\.Ianagement
detennines that this Order is not a Qualitied Domestic Relations Order, then he shall nOlify
the Participant and Alternate Payee of such a detennination and reason therefore
19 In the event that any provision of this Order prevents thiS Order trom
qualifying under the requirements of the Plan for the division in transier of the retirement
annuilY of Participant pursuant to federal law, the parties shall .;ooperate to have this
Order moditied to meet the requirements of the Plan .;onsistently with the intent of this