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HomeMy WebLinkAbout95-02907 , i ~ .1 ! i a:. . 7 J: ! i , ~ \ ) /' c f S I p ~i di ,r- '0 ~ I I ~! ~\ ,-",.... . r ~'*"~'."~"~'~~"~'~"-'~"*"~"~~-'~'~'~"~'~'~"~_.~, .:.:~ .:.:. .:.:' .:.:. .:4C+ ';4 . . .", ----- -.. 8 8 ~i ~I ~i \ VI I,", ~( " ';'1 ~! . \ M', , , .1 !i,\ ~i Ii. I '1 ~\ M ~I ~I '1 Ii. 1 ,'1 ~\ ~ ,,; Ii. , "1 ~i , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF PENNA. \iTl YNE \'. TlUKEIl, Plilintiff Il) 95 :\ II. 2907 CIVIL \"'1"_11' PTlTlllClTl TI. TlUKEIl, Defendant ~I ,', 8 ~ 8. ~ ~ 8 8 ~ ~ .. 8 ~ ~ ~ ~ ~ ~ ~ -- I..,. decreed Ihol WTlYNE \'. flUKEH '. plaintiff. defendanl, ond PTlTHlC1Tl fl. TlUKEH are divorced from the hondo; of matrimony lhe courl relains jurio;didion of the following claims which have been raised of rerord in thi., OCllOI1 for which 0 final order has nol yel been enlered; 1 TIt; F\lHTIIEH OHIlFliI:I} ilnd DEt' HI.:I':JJ IIlil t. tll" I.. nm, and COIHli, ti 0116 ~ ~ of the pOi;tnuJ.ltial ^lJltHdllf'llt ddLud 11tltlfl) ~'.7, ltJf]l,), iltt-ilChuu horeto, Ii , . , .r. . '-r/ -r /~ :f."-X ""- ' .(;.~/ .I. I , ';"./~' /'1'1, 1'111111011011\1., "._t.j~.""l ..: '. '.- '. .. . . .-. ~. . _. .f- .. :t: :.- :t: . :t: :. :.: ,;, 0:; ~ ~ 8 ,;, 0:; ~ ~ ~ 8 ~ ,;, 0:; 8 8 ~ I, '" ~. ~ ~ , . ~ .~ ~ ~ ~ ~ ~ ~ ~ il I I , , I i I I I ...... IlIiirl WIIEREAS, it is the desire of the parties, after long and careful consideration, to amicably adjust, compromise and settle all property rights and all rights in, to or against each other's property or estate, including property heretofore or subsequently acquired by either party, and to settle all disputes existing between them, including any and all claims for WIFE'S and or IIUSBAND'S maintenance and/or for spouse support, a limony pendente 11 te, a 1 i mony , counsel fees and expenses, custody and equitable distribution; and WIIEHEAS, the parties intend this Agreement to be a full and complete postnuptial Agreement, providing for the absolute and final settlement of all their respective marital and property rights and claims for spouse support, alimony pendente lite, alimony, counsel fees and expenses, and equitable distribution of marital property. NOW TIIEHEFOHE, for and in consideration of the mutual benefits to be derived by the parties and intending to be 1 ega 11 y bound hereby, the part i es hereby covenant and agree as followSI 2 f"""\ ,." 1. PERSONAL PROPERTY: HUSBAND warrants and represents to WIFE, and WIFE warrants and represents to HUSBAND, that thoy have effected a fair and equitable division of all marital property of the parties, and that any and all marital I I I i II I , property, except as expressly provided herein, presently in possession or under the control of WIFE shall be the property solely of WIFE, and that any and all marital property, except as expressly provided herein, presently in possession or under the control of HUSBAND shall be the property solely of HUSBAND. WIFE shall have sole rights of possession, title and ownership to the following personal property and HUSBAND does hereby waive and relinquish any and all right he has or may have to claim any interest or share in the 1990 Eagle Talon sedan automobile. HUSBAND shall have sole rights of possession, title and ownership to the following personal property and WIFE does hereby waive and relinquish any and all right she has or may have to claim any interest or share in the 1991 Ford F-150 pick-up truck. 3 - - Neither party shall make any claim to any items of marital property, or of the separate personal property of either party, which are awarded to the other pursuant to the provisions of this Agreement or which are now in the possession and/or under the control of the other. Should it become necessary, the parties each agree to sign, upon request, any titles or documents necessary to give effect to this paragraph. Property shall be deemed to be in the possession or under the control of either party if, in the case of tangible personal property, the item is physically in the possession or control of the party at the time of the signing of this Agreement, and in the case of intangible personal property, if any physical or written evidence of ownership, such as passbook, checkbook, policy or certificate of insurance or other similar writing is in the possession or control of the party. i 'I I :[ Ii !, i: HUSBAND and WIFE do hereby waive and forever release any interest or right either may have to make any claim against or to assert any interest or right to or in any retirement plan, pension plan, profit sharing plan, or other employee benefits of any nature or type earned or provided to the other. 4 Ii ".~ !~..... 2. REAL 1'1l0l'ERnl WII'E shall execute a deed transferring to HUSBAND the premises at 40 Monarch Lane, Mechanicsburg, Cumberland County, Pennsylvania. IIUSDAND shall give a collateral mortgage to WIFE to protect her interests under this Agreement. If the property is transferred within five (5) years from the date of this Agreement, WIFE shall have the following interest in the net proceeds of the salel (a) Deed transfer between date of Agreement of first (1st) anniversary of the Agreementl fifty percent (50\) net proceeds to WIFE and fitty percent (50\) net proceeds to HUSBAND. (b) Deed transfer between date ot Agreement ot second (2nd) anniversary of the Agreement I forty percent (40\) net proceeds to WIFE and sixty percent (60\) net proceeds to IIUSBANlJ. (c) Deed transfer between date of Agreement at third (Jrd) anniversary of the Agreementl thirty percent (30\) net proceeds to WI FE and seventy percent (70\) net proceeds to IIUSUANlJ. (d) Deed transfer between date of Agreement of fourth (4th) anniversary of the Agreement I twenty percent (20\) net proceeds to WI FE and eighty percent (80\) net proceods to Il11SUAlllJ. 5 I" ,...., (e) Deed transfer between date of Agreement of fifth (5th) anniversary of the Agreement: ten percent (10\) net proceeds to WIFE and ninety percent (90\) net proceeds to HUSBAND. (f) Any transfer after the fifth (5th) anniversary date of this Agreement shall result in all net proceeds being distributed to HUSBAND. WIFE shall no longer have any interest in the property after the five (5) year period terminate. Net proceeds are defined as the gross selling price less all normal closing costb, satisfaction of all liens and mortgages, transfer taxes, counsel fees related to the sale of the real estate, realtor's fees, and ancillary costs. HUSBAND agrees that while he occupies said residence, he will make prompt payment of the mortgage and taxes, when required under the terms of this Agreement as set forth in Paragraph 5, insurance payments due on said property and will increase fire and hazard insurance periodically to cover increases in the owners' equity. HUSBAND also agrees to pay utilities, including gas, electricity, sewer, water and refuse collection, and to keep the residence in good repair. 6 property. WIFE shall cooperate in the refinancing of the oxisting mortgage by executing any and all documentation needed or demanded regarding this transaction, Including a satisfaction or subordination of the collateral mortgage given under the terms of this Agreement. If, during the period endi no on the f itth (5th) anniversary of the date of this Agreement, HUSBAND does not, by June 30, 2000, retire and pay in full the mortgage owed to Bank of America 01" WIFE receives a notice of foreclosure and/or defaul t from the mortgagee, Bank of America, its successors and assigns, callsed as a result of HUSBAND'S non- payment of mortgage payments, insurance, real estate taxes, or failure to comply with any other terms of the mortgage, and/or receives notice of a Sheriff's or Judicial Sale for unpaid taxes or receives a notice of unpaid Insurance coverage on the premises, which IroSUAND, by the terms of this Agreement, has obligated himself to pay and, HUSUAND has agreed to hold WU'E harmless. IIlHJIlAHLJ shllll cure such default or breach within thirty (30) days aileI' having n:ceived written notice from W I FE to do eo. J n t.he event t.he de f au 1 t or breach is not cured, notw Ithatanllln<j any othel" tel'me ot thie Agreement, WIn~, shllll have the rl'lht t.O Cllre the alleged default and II -- f"""'\ shall also have the right to demand HUSBAND to immediately list the property at 40 Monarch Lane, Mechanicsburg, Cumberland County, Pennsylvania for sale with a reputable realtor of WIFE'S choice, at a price which, in the opinion of WIFE will assure a prompt liquidation of the property but, in no event, will the contract sale price be agreed upon at a price less than the sum necessary to completely retire the principal, interest, and ancillary costs of the defaulted mortgage, the real estate taxes due and owing, and any amount owed to WIFE under the terms of the Note given pursuant to this Agreement and any amounts WIFE has advanced on behalf of HUSBAND. I f HUSBAND refuses to execute a 1 isting agreement at the price set by WIFE, then WIFE shall have the right to institute an action in equity for specific performance and ~ HUSBAND shall have no right to defend against the action with the exception of the defense of a breach of the terms of this SUb-paragraph or error on the part of the mortgagee in claiming a default and/or the error in claiming non-payment of real estate taxes or insurance premiums. 9 , If WIFE cures the alleged default(s); if WIFE makes any payment(s) on the defaulted mortgage obligation on behalf of HUSBAND; if WIFE pays any unpaid real estate taxes; or if WIFE pays any unpaid insurance premiums, WIFE shall have the right, at the time of the sale of the marital domicile, to be reimbursed from the proceeds of the sale for all monies she has paid to cure the default or monies she has paid on behalf of HUSBAND, together with accrued interest to be calculated at Dauphin Deposit Bank & Trust Company's prime lending rate, plus three (3) additional interest points. 4. DEBTS AND INDEMNIFICATION: HUSBAND and WIFE represent and warrant to each other that except as provided herein, neither one has contracted, since separation or will in the future contract, any debts, charges or liabilities whatsoever for which the other party or their property or their estates shall or may be or become liable or responsible, and they covenant that they will at all times keep each other free, harmless and indemnified against and from any and all debts and liabilities heretofore or hereafter contracted or incurred by the other, except as expressly provided in this Agreement. 10 . . HUSBAND agrees to timely pay and be solely responsible for, and to indemnify and hold harmless WIFE from liability on, the following debts: (a) Bank of America (b) Discover Card (c) Members First (line of credit loan) (d) VISA - Members First WIFE agrees to timely pay and be solely responsible for, and to indemnify and hold harmless HUSBAND from any liability on, the following debts: (a) VISA - Members First (b) Members First (loan) 5. WAIVER OF RIGHTS AND MUTUAL RELEASE: The parties hereto have been informed of their rights by their respective counsel under and pursuant to the Divorce Code, Act of April 2, 1980, Number 1980-26, particularly the provisions for alimony, alimony pendente lite, equitable distribution of mar ita1 property, counsel fees or expenses. Both parties agree that this Agreement shall conclusively provide for the distribution of property under the said law and hereby waive, 11 i I I: II ,I II II II I 'I Ii Ii ii II Ii Ii ., The parties hereto exprenly relinquish and waive any and all rights that they may have now or in the future to claim and/or obtain spouse support, alimony pendente lits, alimony, counsel fees and expenses or equitable distribution of property. This Agreement is not intended to be nor shall it be construed or deemed to be a release or waiver of any right WIFE or IIUSUAND may have to claim, ftssert or obtain social security benefits to which either may be entitled by virtue of the mftrriago relationship between IIUSUAND and WIFE. 6. ESTATE HE.l.LMJ;;: Except as herein otherwise provided, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she may now have or hereafter acquire, under the present or future laws of Any jurisdiction, to shftre in the property or the estate of the othor ae a result of the marital relationship, including without limitation, dower, courtesy, statutory allowance, widow's ftllowance, right to take property under equitable dlstl"llJullol1, right to take in intestftcy, right to take against tho will of tho other, and right to act 11 , ~ , ' as administrator or executor of the other's estate, and each will, at the request of the other, execute, acknowledge, and deliver any and all instruments which may be necessary or advisable to carry into effect this mutual waiver and relinquishment of all such interests, rights and claims. 7. ADVICE OF COUNSEL: The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel, Jordan D. Cunningham, Esquire, for HUSBAND and Susan J. otto, 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 and 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, after having received such advice and with such knowledge and that execution of this Agreement is not the result of any duress or undue influence and that it is not the result of any collusion or improper or illegal agreement or agreements. 14 misrepresentation or failure to disclose the nature and extent of WIFE'S separate income. 10. REPRESENTATIONS AND WARRANTIES: The parties acknowledge that they have been advised by their respective counsel of their right to require the filing of financial disclosure statements by the other prior to the entering into this Agreement, and being so advised the parties acknowledge that they have waived their right to request such financial disclosure. However, each of the parties hereby warrant and represent to the other that at the time of separation, they had no right, title and interest in any real or personal property with a fair market value in excess of Five Hundred and 00/100 Dollars ($500.00) except for any asset or item of real or personal property specifically described and awarded pursuant to Paragraphs 1 and 2 of this Agreement. 11. SEPARATION: It shall be lawful for each party at all timee hereafter to live separate and apart from the other party at such place or places as he or she may from time to time choose or determine fit. 16 . , 12. NO INTERFERENCE I Each party shall be free from interference, authority and control, direct and indirect, by the other as fully as if he or she were single and unmarried. Nei ther shall molest the other, compel, or endeavor to compel, the other to cohabit or dwell with him or her, or to interfere with friendships, society or acquaintances which either of the parties hereto may choose or have from this day forward. Neither party shall do or say anything to the children of the parties at any time which might in any way influence the children adversely against the other party. 13. DOCUMENTS; Each party shall, at the request of the other, execute, acknowledge and deliver to the other party any documents which may be reasonably necessary to give full force and effect to this Agreement. 14. AGHEEMENT H91'....A-UAR TO DIVORCE PROCEEDINGS; This Agreement shall not be considered to affect or bar the right of WIFE or IWSUAND to a divorce on lawful grounds as such grounds now exist or shall hereafter exist or to such defense aa may be available to either party. This Agreement is not intunded to condone and shall not be deemed to be a 17 ., I I i II condonation on the part of either party hereto of any act or acts on the part of the other party which have occasioned the disputes or unhappy differences which have occurred prior to or which may occur subsequent to the date hereof. The parties intend to secure a mutual consent, no fault divorce pursuant II !! II Ii ,I I I I I I il I' I I ! I to the terms of section 3301(c) of the Divorce Code of 1980. The parties agree to sign all necessary documents, including Affidavits of consent, to secure said no-fault divorce. 15. ABSOLUTE AND FINAL SETTLEMENT: The provisions of this Agreement are intended to consider, determine, and distribute all of the assets of the parties hereto as part of the terms of this Postnuptial Agreement. This Agreement is intended by the parties hereto to be a val id Postnuptial Agreement, providing for the absolute and final settlement of their respective property rights and all obligations of spouse support. This Agreement is not intended to be a mere Separation Agreement. This Agreement conta ins the entire understanding parties, the of and there are no representations, warranties, covenants or promises other than those expressly set forth in this Agreement. 18 ", 16. VOLUNTARY EXECUTION AND FAIRNESS OF AGREEMENT: Each party acknowledges that this Agreement has been entered into of his or her own volition, (with full knowledge of the facts and full information as to the legal rights, liabilities and the assets of the other), and that each believes the Agreement to be reasonable under the circumstances and not the result of any duress or undue influence. 17. MODIFICATION AND WAIVER: Neither this Agreement nor !' i any provision thereof shall be amended or mod fied or deemed amended or modified, except by an agreement in writing duly subscribed and acknowledged with the same formality as this Agreement. Any waiver by either party of any provision of this Agreement, or any right or option hereunder shall not be deemed a continuing waiver, and shall not prevent or estop such party from thereafter enforcing such provision, right or option, and the failure of either party to insist in anyone or more instances upon the strict performance of any of the terms or prov isions of this Agreement by the other party shall not be construed as a waiver or relinquishment for the future of any such term or provision, but the same shall continue in full force and effect. 19 , \ IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and date first written, each adopting the seal following his or her signature as his or her own. WIT~~SES: /' I I /" . '\" (' .. . \ .it' 'oj .i. HUSBAND: ~ /';:' /'/"1'" /~ /11/. ..( WAYNE L. AUKER cv4d j':j~v!liZ(. WIFE: ~Ql~ u.e ~'-- ~ ~\.~ \ PATRICIA A. AUKER 22 v. IN TilE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 95 CIVIL 2901 WAYNE L. AUKER, Plaintiff PATRICIA A. AUKER, Defendant CIVIL ACTION - LAW IN DIVORCE PRAECIPE TO TRANSMIT RECORD TO TilE PROTHONOTARY: Transmit the record, together with the following information, to the Court for entry of a Divorce Decree: 1. Ground for di vorce: irretrievable breakdown under section (Xl llOllcl I I llOl..1.J;U of the Divorce Code. 2. Date and manner of service of the Complaint: Defendant received the Complaint in Divorce on June l. 1995 bv certified mail. rrl1lrn receipt reauestJ:!..\l. restricted delivery... See certificate of Service filed to the above term and number. 3. (Complete either Paragraph (a) or (b)). (a) Date of execution of the Affidavit of Consent required by section l301{c) of the Divorce Code: By Plaintiff: October 10. l~~S I Defendant: OctulH'1 lO, 199'i. (b) (I) Date of execution of the Plaintiff's Affidavit required by section 3301 (d) of the Divorce Code: tUAl (2) Date of service of the Plaintiff's Affidavit upon the Defendant I NJ.A_L 4, Helated claims pending: Il<LSMllllLllW411l9, CIJNNINGHJ\M " C/WHNICOFF, P.C. Date: OC.tobl'r 12, If)')'l Ily: ~~..~~. ...._____...._~__..,_.,._.."...__ Jordan D. Cunningham, Esquire LD. .23144 2320 North Second Street P. O. Dox 60451 lIarrlsburg. PA 11101>-04'>" (Attol'neys for Plaintiff) ~ ~..... ~ . j 1 '\ ~1' \.\.. II) " 3- ..,~ ~, ~ ~ tt-) " ,\ ~ ' ~-t l:'~ . . 'it- r..... ~t"( f' -- ~ f') ~ ;:, '" ~~ " "'l '" <~ \t)'::l\.r) ~ ~~ ~ -- - -. ~ ~ o U .. a: ;: If c o~z !:!~~ ffi~~ ; xzzlo uOffi ollILa. ,::- ::I en . .. 0( ,Cl t::.. :cza: Clo:J ZNlD _Men ZN- Z a: :J a: U ~ ... t:l. C ... tl .. t: c OJ ..., .. .. .. E :; ""'J .. to L tl ;: ~ .,. C .E""'3 - " '::' ~2 , ., t 5 ~ ., - ..., ...., .... '" ~ u ': t ~ ~-:: i~ I C' Ir. !~ 1:1- . . , . . .. CUNNINGIlAM & CIlERNICOFF, P,C. WAYNE L. AUKER, Plaintiff IN TilE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. (jS - jt/r.J'! !t~.<-.( 7('1.,,,-, v. PATRICIA A. AUKER, Defendant CIVIL ACTION - LAW IN DIVOIlCE NOTICB TO DB FEND AND CLAIM RIOHTS YOU IIAVE nEEN SUED IN COUIlT. 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 may proceed without you and a Decree of Divorce or annulment may be entered against you by the court. A jUdgment may also 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 murriage counselors is available in the Office of the Prothonotary at Cumberland County Courthouse, Carlise, Pennsylvania. IF YOU DO NOT FILE A CLAIM FOil ALIMONY, MARITAl, PIlOPERTY, COUNSEL FEES OR EXPENSES BEFORE 'l'HE FINAL DECREE OF DIVOHCE OR ANNUUlENT IS ENTERED, YOU MAY LOSE TilE RIGHT TO CLAIM ANY OF TIIEM. YOU SIIOULD TAKE TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU 00 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 IIELP. Court Administrator Cumberland county Courthouse Carlisle, PA 17013 Telephone: (717) 240-6200 Respectfully SUbmitted, CUNNINGIIAM " CIIERNICOFF, P.C. / Oate, ,,',.', ~ \' .-...~ By I _ _______'_________...__'___ Jordah D. Cunningham, Esquire I,D. '23144 2320 North Second street P. O. BOll 111l45'1 lIarrisburv, PA 1'l11l6-11457 Telephonel (71'/) 230-65'10 (Attorneys for Plaintiff) AFFIDAVIT OF NON-MILITARY BIRVICB COMMONWEALTH OF PENNSYLVANIA sSI COUNTY OF DAUPHIN , i 'I I I 11 II II " ii i 'i ! ~ i i! i I i I The Plaintiff, being duly sworn according to law, deposes and says that he is the Plaintiff in the above captioned matter and that he personally knows that the Defendant is over the age of eighteen (IB) years. The Plaintiff further avers that the Defendant is not in the Military Service or in any branch of the Armed Forces of the United States of America or its Allies or otherwise within the provisions of the Soldiers' and Sailors' civil Relief Act of Congress of 1940 and its Amendments. ~/ 'A;r;f~. L I1Jdi:-L- AUKER SWORN and Subscribed to BefQre me this , day of ) I I , " i 1995. i '.. j /1 ) i\~> " /, ... " " . , ,_.... i OTARY PUBLIC -~-,------. 1..01,1'1,111"'<11 131anchH A MUIlI"'{I!'. t~otary PuhllC HilfllSburp IJ,IIJplllfl CoulltV M, Co~nmlSSIl)l\ r ~pl!f't, No..... 8 19'17 , ," 1'\'" l",II.'.,Ur1:"'oI"... AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY 8S; OF DAUPHIN I, WAYNE L. AUKER, being duly sworn according to law, depose and say: (1) I have been advised of the availability of marriage counseling and understand that I may request that the Court require that my spouse and I participate in counseling. (2) I understand that the Court maintains a list of marriage counselors in the Domestic Relations Office, which list is available to me upon request. (3) Being so advised, I do not request that the Court require that my spouse and I participate in counseling prior to a Divorce Decree being handed down by the court. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. S4904 relating to unsworn falsification to authorities. ,I I r''! ,.- 1 / /' ,/' . .' . ~~ /:./J4! ~ /laf"..vc WAYNE L. AUKER B.-.tOj fe this 'i of ) I. i li.\ I ' ii\L:."( (( ,A( t [, /NOTARY PUBLIC Ii I .. , SWORN and subscrt~ed to .. 1 '/ day . ., 1995. 17//1. , . {~/\ tl.J!ir',Jlhr!.11 13liUlrtJe A Mull!' on tJotiHY Pllhhr: HllrflSburO 11,11lplllll Counl... r~y CnrlHlll,;<jw/\ I 111"1'" tlO\l 0, 1YQ! ," , .,;\ ",L'''ldr'oll'''''., }~ ~ .... I'J .. '-' i!~ -' ! C-'t I V /":1 -' 'i' \ - \,: .'-'" '" "1 ,~ "- lll, pJ '(lJ L'! C" u' ~... ..Jjl, r . r' , u. . 1;. \ r ..' ~ \! .n '1 LJ t~ "' U