Loading...
HomeMy WebLinkAbout95-06565 " " . , . \ - .t. ~. I \ . , " CHARLES W. FITZPATRICK. PlaintifTIRespondent : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY. : PENNSYLVANIA v. : NO. 95-6565 CIVIL TERM DOROTHY FITZPATRICK. DcfendantIPetitioner : CIVIL ACTION : COMPLAINT IN DIVORCE CHARLES W. FITZPATRICK'S ANSWER WITH NEW MATTER TO DOROTHY J. FITZPATRICK'S PETITION FOR ENFORCEMENT OF THE MARITAL SETTLEMENT AGREEMENT AND NOW comes the PlaintifT/Respondent, Charles W. Fitzpatrick ("Mr. Fitzpatrick"), who, by and through his attomeys, Charles O. Beckley, II, Esquire, Thomas S. Beckley, Esquire, and Beckley & Madden, of Counsel, files this Answer to Dorothy J. Fitzpatrick's ("Mrs. Fitzpatrick") Petition for Enforcement of Marital Settlement Agreement. I. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. TIle allegations contained in paragraph 8 of thc Pctition refcrcnce a writtcn document which spcaks for itself. To the extent a response is dccmcd nccessary, it is admitted that. pursuant to the Marital Scttlement Agreement ("MSA"), Ms. Fitzpatrick is an employee of Fitzpatrick Cleaning, Inc. ("FCI"). Ms. Fitzpatrick's employment with FCI is to last until she obtains her tcaching certificate or until the cnd of ] 999, whichever comes first. It is also admitted that Ms. Fitzpatrick has the option to extend her employment status for an additional six month period if she is unable to obtain any employment. After reasonable investigation, Mr. Fitzpatrick is without knowledge or information sufficient to form a belief as to Ms. Fitzpatrick's motivation for entering into the MSA. 9. The allegations contained in paragraph 9 of Ms. Fitzpatrick's Petition reference a written document which speaks for itself. 10. Denied as stated. After reasonable investigation, Mr. Fitzpatrick does not know what Ms. Fitzpatrick's intent was upon entering into the MSA. By way of further answer, FCI has paid Ms. Fitzpatrick in accordance with the terms of the MSA. However, despite Fel's adherencc to the terms of the MSA, Ms. Fitzpatrick is not enrolled in the proper courses in order to obtain hcr teaching certificate. II. After reasonable investigation, Mr. Fitzpatrick is without knowledge or information sufficient to form a belief as to the matters asserted in paragraph II of Ms. Fitzpatrick's Petition. By way of further response, one of the parties' children lives with Mr. Fitzpatrick, Ms. Fitzpatrick apparently Is no longer enrolled in as a full and/or part-time studcnt, and, upon information and belief, Ms. Fitzpatrick has attempted to 2 solicit clients away from Fel, and, in at least one instance, has entered into her own contract with a former Fel client to provide cleaning services, thereby supplementing her income while depriving Fel of at least one valuable customer. 12. It is denied that Ms. Fitzpatrick has performed her responsibilities in a professional manner. To the contrary, Ms. Fitzpatrick has perfomled her duties in an unprofessional manner and Fel has had numerous problems with Ms. Fitzpatrick's work. Fel has received numerous complaints regarding Ms. Fitzpatrick's work, and, upon information and belief, Ms. Fitzpatrick has solicited Fel's customers In an effort to persuade them to terminate their contract with Fel in order to enter into a new contract with Ms. Fitzpatrick personally. On at least one occasion, Ms. Fitzpatrick succeeded in her efforts. FCI has also received complaints from Ms. Fitzpatrick's coworkers. These complaints have been communicated to Ms. Fitzpatrick in writing on several occasions. At this point in time Fel has had to remove Ms. Fitzpatrick from her former workplace in an effort to salvage Fel's relationship with one of its most important customers. 13. Denied as stated. It is admitted that Ms. Fitzpatrick filed a Petition for Enforcement of the MSA sometime in March, 1997. It is specifically denied that this was caused by Mr. Fitzpatrick's harassment. 14. The allegations contained in paragraph 14 of Ms. Fitzpatrick's Petition reference a written document which speaks for itself. By way of further answer, the Order was dated March 13, 1997, and was a temporary order. 15. The allegations contained in paragraph 15 of Ms. Fitzpatrick's Petition reference a written document which speaks for itself. By way of further answer, Paragraph 7 of the MSA does not obligatc Mr. Fitzpatrick personally to make any 3 The remaining allegations contained In paragraph 21 of Ms. Fitzpatrick's Petition are specifically denied. 22. Denied as stated. It is admitted that Ms. Fitzpatrick eventually withdrew her petition. The remaining allegations containcd in paragraph 22 of Ms. Fitzpatrick's Petition constitute a legal conclusion to which no response is necessary. By way of further response, denied. Any amounts due to Ms. Fitzpatrick were paid to her by Fel, not Respondent. 23. Admitted in part and denied in part. It is admitted that Mr. Fitzpatrick was present at Ms. Fitzpatrick's worksite briefly on Friday, January 22, 1999. It is denied that Mr. Fitzpatrick harassed, threatened or otherwise annoyed Ms. Fitzpatrick in any way. To the contrary, Mr. Fitzpatrick was merely ensuring that Ms. Fitzpatrick's work was properly perfomled. By way of further answer, Mr. Fitzpatrick owns Fel and he periodically visits all of his clients in order to ensure that the work is properly performed. Moreover, Ms. Fitzpatrick's worksite is not her "place of employment." Ms. Fitzpatrick has no set place of employment. 24. Admitted. 25. Denied as stated. It is admitted that on January 25, 1999, Mr. Fitzpatrick came to Ms. Fitzpatrick's worksite and informed her that she was to be reassigned. By way of further answer, Fel was forced to assign Ms. Fitzpatrick from the worksite because the client had threatened to terminate its contract with Felon account of Ms. Fitzpatrick's failure to perform her job dutics properly. Fel had no choice but to rcmove Ms. Fitzpatrick from the building, otherwisc it would have lost the client. 5 26. After rcasonable investigation, Mr. Fitzpatrick is without knowledge or information sufficient to form a belief as to the matters contained in paragraph 26 of Ms. Fitzpatrick's Petition. 27. After reasonable investigation, Mr. Fitzpatrick is without knowledge or information sufficient to form a belief as to the allegations containcd in paragraph 27 of Ms. Fitzpatrick's Petition. It is admitted, however, that Mr. Fitzpatrick's attomey received a letter from Ms. Fitzpatrick's attorney somctime shortly after January 26, 1999, which contained Ms. Fitzpatrick's access card. However, thc keys were not in thc letter. 28. Admitted. By way of further answer, Fel still does not have Ms. Fitzpatrick's keys. 29. Denied as stated. During a telephone call between Mr. Fitzpatrick's attorney, Thomas S. Beckley, Esquire, and Ms. Fitzpatrick's attorney, TIlOmas D. Gould, Esquire, Mr. Beckley indicated that it was his understanding at that point in time that Mr. Fitzpatrick intended to continue to pay Ms. Fitzpatrick pursuant to the terms of the MSA. Mr. Beckley also indicated to Mr. Gould that Ms. Fitzpatrick was removed from her duties (at her then location) duc to complaints from Fel's client regarding her work. It is denied that Mr. Beckley ever told Ms. Fitzpatrick's attorney that Mr. Fitzpatrick IVould continue to pay Ms. Fitzpatrick. 30. Denied. This constitutes a legal conclusion to which no response is necessary. To the extent a responsc is decmcd to bc necessary, it is dcnied that any payment was due on the 1st and 15th ofcach month. To the contrary, the MSA providcs only that Ms. Fitzpatrick is to be paid $1,800.00 pcr month. Thc MSA does not specify when during the month Ms. Fitzpatrick is to be paid. 6 31. It is admitted that Mr. Fitzpatrick fhilcd to pay Ms. Fitzpatrick $900.00 on February I, 1999. Hc had no duty to do so. Fel, howevcr, did forward a check for $900.00 to Ms. Fitzpatrick on February I, 1999. Ms. Fitzpatrick has received and cashcd this check. 32. Admitted. By way of further answer, Fel is still considering where to reassign Ms. Fitzpatrick, however, it has remained timely with all of its payments to Ms. Fitzpatrick. eonsequently, Fel has been paying Ms. Fitzpatrick even though Ms. Fitzpatrick is not perfornling any services for Fe!. 33. It is specifically denied that Mr. Fitzpatrick and/or Fel had no legitimate reason for removing Ms. Fitzpatrick from her previous job location. To the contrary, Fel received several complaints from its clicnt (wherc Ms. Fitzpatrick was working) regarding Ms. Fitzpatrick's job perfonnance; thcrcfore, Fel had no choice but to remove her in order to preserve the client relationship. 34. Denied. To the contrary, Respondent has no duty to make bi-monthly payments of $900.00 to Ms. Fitzpatrick. According to the MSA, FCI, not Respondent, is to pay Ms. Fitzpatrick $1,800.00 per month. Fel has not withheld any payments from Ms. Fitzpatrick. 35. Denied as stated. Aftcr rcasonable invcstigation, Mr. Fitzpatrick is without knowlcdgc or information sullicient to form a bclief as to whether Ms. Fitzpatrick depends upon the payments from rei for her livelihood. By way of further answcr, onc of the parties' children moved out of Ms. Fitzpatrick's house and now lives with Mr. Fitzpatrick. Furthermore, Mr. Fitzpatrick pays child support to Ms. Fitzpatrick. Upon 7 Information and belief, Ms. Fitzpatrick has other sources of Income, including a former client of Fel, for whom she provides cleaning services. By way of further answer, Ms. Fitzpatrick is no longer enrolled in school, and is frcc to obtain a second job. 36. After reasonable investigation, Mr. Fitzpatrick is without knowledge or infornlation sufficient to form a belief as to the truth of thc matters assertcd in paragraph 36 of Ms. Fitzpatrick's Petition. eonsequently, such allcgations are specifically denied. By way of further answer, it is noted that Ms. Fitzpatrick has failed to indicate how she will suffer "undue hardship" if Fel no longer pays her. Furthennore, Fel has continued to pay Ms. Fitzpatrick in a timely manner. 37. Denied. It is denied that Mr. Fitzpatrick has in any way harassed Ms. Fitzpatrick. After reasonable investigation, Mr. Fitzpatrick is without knowledge or Information sufficient to foml a belief as to why Ms. Fitzpatrick has failed to continue her pursuit of her teaching certificate. By way of further answer, because Fel has not required that Ms. Fitzpatrick report to work, Ms. Fitzpatrick has even more time to continue her studies, although she has apparently chosen not to do so. 38. After reasonable Investigation, Mr. Fitzpatrick is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 38 of Ms. Fitzpatrick's Petition. eonsequently, such allegations are specifically denied. 39. After reasonable investigation, Mr. Fitzpatrick is without knowledge or infomlation sufficient to form a belicf ns to thc truth of the mailers contained in paragraph 39 of Ms. Fitzpatrick's Petition. eonsequently, such allegations are specifically denied. By way of furthcr answcr, Ms. Fitzpatrick is only entitled to exercise 8 her "six month option" if shc has not obtained cmployment by the end of 1999. Thcrefore, it is prcmaturc for Ms. Fitzpatrick to indicatc that shc will cxercisc hcr option when shc still has ovcr ten months to find cmployment. 40. After reasonablc investigation, Mr. Fitzpatrick is without knowlcdgc or information sufficicnt to form a belief as to the matters contained in paragraph 40 of Ms. Fitzpatrick's Petition. Consequently, such allegations are specifically dcnicd. By way of furthcr answcr, Mr. Fitzpatrick has not breached any tcrms of thc MSA, and any cxpenditures by Ms. Fitzpatrick, including tile filing of this pctition, were unjustificd. 41. Paragraph 41 of Ms. Fitzpatrick's Petition references a legal document which speaks for itself. By way of further answer, Mr. Fitzpatrick has not breached the MSA in any way, therefore, Ms. Fitzpatrick's Petition fails to state a claim upon which relief may be granted. WHEREFORE, eharles W. Fitzpatrick respectfully requests that this eourt cntcr an Order dismissing Ms. Fitzpatrick's Petition and order such other relief as this eourt deems appropriate. NEW MATTER 42. The allegations contained in paragraphs I through 41 of this Answer are incorporated herein as though set forth here at length. 43. In her Prayer for Relief, Ms. Fitzpatrick has requested that this eourt enter an order compelling Mr. Fitzpatrick "to immediately comply with paragraph 7 of the MSA by reinstating Ms. Fitzpatrick's emplo)'ment status with Fitzpatrick eleaning, Inc. and 9 --~ . -' ",.-. continuing to makc thc $1,800.00 monthly payments and mcdical coveragc." (Pctition, Praycr for Rclict). 43. Under Paragraph 7 of the MSA, Mr. Fitzpatrick is obligated to pay Ms. Fitzpatrick only in thc cvcnt that he sclls Fel to a third party. Mr. Fitzpatrick has not sold Fel to a third party. 44. Fel is obligated to make a monthly payment to Ms. Fitzpatrick in the amount of$I,800.00. The MSA does not state when Fel is to make this payment, it mercly states it must be made on 11 monthly basis. 44. To datc, Fel has made all of the payments under the MSA in a timely fashion, and no amounts are currcntly owed to Ms. Fitzpatrick. 45. FCI has continued to maintain Ms. Fitzpatrick's health insurance, and she has c"pericnced no lapse in coverage. 46. While Fel has removed Ms. Fitzpatrick from her previous worksite, it has continued to pay her in a timely fashion, although, at this point, it has not reassigned her to a ncw position. 47. Ms. Fitzpatrick has not alleged that any payments arc currently due to her from Fel, nor has Fel been made a party to this action. 48. Ms. Fitzpatrick has not alleged a lapse in her medical coverage. 49. Mr. Fitzpatrick has not breached any tcrms of the MSA. 10 SO. Ms. Fitzpatrick has failed to allege any harm or damage caused by Mr. Fitzpatrick which is in violation of the MSA. 51. In short, Ms. Fitzpatrick has failed to allege that Mr. Fitzpatrick has breached the MSA in any way, and has merely requested this Court to enter an order compelling Mr. Fitzpatrick to do something which Fel, as required by the MSA, is already doing. 52. eonsequently, Ms. Fitzpatrick has failed to state a claim upon which relief may be granted. 53. Paragraph 16 of the MSA provides "no court asked to enforce or interpret this Agreement shall in any way change the terms of this Agreement." (MSA, ~ 16). 54. Similarly, the Divorce eode provides that "[i]n the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court." 23 Pa.e.S.A. ~ 3105(c). 55. eontrary to the express terms of the MSA and the Divorce eode, Ms. Fitzpatrick has requested (in the alternative) this eourt to modify the MSA by vacating "that portion of the MSA that requires [Ms. Fitzpatrick] to continue to be employed by Fel and order [Mr. Fitzpatrick] to pay [Ms. Fitzpatrick] her equitable interests in Fel." (Petition, Prayer for Relief). Ms. Fitzpatrick calculates her "equitable interest" by totaling the payments which she feels she will collect over the remaining life of the MSA. \I ,.--- _ ~.""~=: J:~,~':~l!,~i{#~'~~~+'~~:ii~':~'.:i:~~i i) " L, ~.;".--?--:- .- 63. Mr. Fitzpatrick is entitled to his attorneys' fe~s under the Judicial eode because Ms. Fitzpatrick's action was commenced in bad faith. See 42 Pa.C.S.A. ~ 2503. WHEREFORE, Mr. Fitzpatrick requests that this eourt deny Ms. Fitzpatrick's Petition, and order Ms. Fitzpatrick to pay Mr. Fitzpatrick's attomeys' fees incurred in responding to Ms. Fitzpatrick's most recent petition, and such other relief as this Court deems appropriate. DATED: February 24, 1999 Ofeounsel Respectfully submitted, BEeKLEY & MADDEN 212 North Third Street Post Office Box 11998 Harrisburg, Pennsylvania 17108 (717) 233.7691 , harles O. Beckley, 11, E quire ,~~ Thomas S. Beckley, Esquire Attorneys for PlaintifTIRespondent eharles W. Fitzpatrick 13 BEOKLEY & MADDEN ATTORIC.,yO Jl.T LAW CIUM.._y OOUIIT III NOlITa TJUaD BTUaT JIOeT omcs ~x 11" HAJUlI8BURG. PZlfN8YLVJl.NI.A 17108 FAX MO. m" .....,.0 J1UI 1t0. ADA OOD. "7 ~"'''''l 39420 February 12, 1999 Tholll8S D. Gould, Esquire 2 East Main Street Shiremanstown, PeMsylvania 17011 RE: Fitzpatrick v. Fitzpatrick Dear Mr. Gould: We have in hand Ms. Fitzpatrick's Petition for Enforcement of a Marital Settlement Apment which was filed on or about February 3, 1999. This is to request that you withdraw that petition. First, Mr. Fitzpatrick has not breached the Marital Settlement Apment ("MSA"). As I indicated to you on the telephone prior to your filing the Petition, Mr. Fitzpatrick has not terminated Ms. Fitzpatrick's employment, he has merely removed her from her position at PMA due to customer complaints regarding her work. Furthermore, Ms. Fitzpatrick has been paid pursuant to the terms of the MSA and she still has medical coverage. Paragraph 7 of the MSA merely requires that Ms. Fitzpatrick is to be paid $1,800.00 per month, it docs not slate when that payment is due, however, a partial payment of$900.00 was made on February I, 1999. Indeed, Ms. Fitzpatrick cashed that check. Fitzpatrick Cleaning, Inc., paid Ms. Fitzpatrick prior to her filing her petition. Therefore, because Ms. Fitzpatrick has been paid and because her employment has not been terminated, there has been no breach of the MSA, and she knew that prior to filing her petition. Second, in the prayer for relief, you have requested (in the altemative) that the eourt "vacate that portion of the MSA that requires [Ms. Fitzpatrick] to continue to be employed by [Fitzpatrick Cleaning, Inc.] and order [Mr. Fitzpatrick] to pay [Ms. Fitzpatrick] her equitable interests in" Fitzpatrick eleaning, Inc. You further request the court to calculate the value of any interest she may have by computing the payments left plus the value of her medical coverage. Essentially, you have requested that the court to modify the MSA by eliminating Ms. Fitzpatrick's work requirement and accelerating any payments which she may be entitled to receive over the life of the MSA into one lurnp sum payment due immediately. The relief you have requested violates the terms of the MSA and is prohibited by the express terms of the Divorce eode. CERTIFICATE OF SERVICE I, Thomas S. Beckley, Esquire, hereby certify that on this day a true and correct copy of the foregoing document was served upon the person and in the manner indicated below: SERVICE BY FIRST CLASS MAli. Thomas D. Gould, Esquire 2 East Main Street Shiremanstown, Pennsylvania 17011 DATED: February 24, 1999 ~~ Thomas S. Beckley, Esquire v. I IN TIm COtmT 0' COIDION PLIIU 0' I COIIIIIRLAIID COmITY, PIIDIIYLVAIfIA I I 95-6565 CIVIL TIaN I I CIVIL ACTION - LAW . IN DIVOZlCI CIA.LII W. 'ITIPATlICK, Plaintiff/a..pondent DOaOTHY J. 'ITSlPATRICK, D.fendant/P.tition.r IN U I '.-fITION 'OR INI'ORCDIIHT 0' IlAJtITAI, SITTLIIIIH'l' CRDIR 01' COURT AND HOW, tbi. 30tb day of JUD., 1997, tb. Court baying b.ard tb. t..tiaony pr...nt.d on tb. requ..t of Dorotby 'it.patrick to dir.ct Charl.. 'it.patrick to abide by tb. t.~ of th. agr...aDt of tbe parti.. of JuD. 7, 1996, tb. Court dir.ct. Charl.. I'it.patrick to t.aediately c~ly witb paragr.pb 7 of tb. ..rital .ettl..ent agreeaeDt by rein.tating Hr.. I'it.patrick'. .-ployaent .tatu. witb I'it.patrick Cleening, Inc., aDd cOlltinuing to ..ke tbe $1,800.00 IICntbly paylHllt. to ber aDd provide ber witb ..dical coverage. By tb. Court, David T. Klu., ..quire COUD..l for Plaintiff/Re.pondent ~. D. Gould, I.quire COUD.el for D.fendant/'etitioner Sheriff ..lr v. I IN THB COURT OP CONNON PLBAB OP I CUMBERLAND COUNTY, PJlNNSYLVANIA I I 95-6565 CIVIL TBRM I I CIVIL ACTION - LAW I IN DIVORCB CBAlLBS W. PITZPATRICK, Pl.intiff/R..pond.nt DOROTHY J. PITZPATRICK, D.f.ndant/P.tition.r IN RB I PITITION POR UPORCBMENT OP MARITAL SBTTLBMBHT ORDBR OP COURT AND NOW, thi. 30th d.y of Jun., 1997, the Court h.ving h..rd the t..timony pr...nt.d on the r.qu..t of Dorothy Pitzp.trick to dir.ct Ch.rl.. Pitzp.trick to abide by the t.~ of the .gr....nt of the p.rti.. of Jun. 7, 1996, the Court dir.ct. Ch.rl.. Pitzp.trick to imm.di.tely comply with par.gr.ph 7 of the marit.l ..ttl..ent .gr....nt by rein.tating Mr.. Pitzp.trick'. employment .t.tu. with Pitzp.trick Cl..ning, Inc., and continuing to mak. the $1,800.00 monthly p.ymentE to h.r .nd provide h.r with ..dic.l cov.r.g.. By the Court, D.vid T. Kluz, E.quire Coun.el for pl.intiff/a..pondent Thyma. D. Gould, E.quir. e6un..l for D.f.nd.nt/P.tition.r :.lr ?~ +--- m;r..4 YU'-' ~.. rJ#~ cr-H~~' ;:r~ ~~.(.. ~""~J' Sh.riff \ JUN 0 4 1997 11/ CIlARLBS W. FITZPATRICK, . IN THE COURT OF COMMON PLEAS OF Plaintiff . CUMBBRLAND COUNTY, PENNSYLVAHIA . v. . NO. 95-6565 Civil Tem . DOROTHY J. FITZPATRICK, . CIVIL ACTION " Defendant . IN DIVORCE ~ ORDaR AHD NOW, thi. ~ day of June, 1997, upon revi_ and con.ideration of the inforaation contained within the pleading., it i. hereby ordered that a hearing be held in Courtroom .~, at I ~.. on -!j~3u. 1'117 , to re.olve the i..ue. rai.ed in the ., I Petition fo Enforcement of Marital Settlement Agr....nt and the re.ulting An.wer. BY THE COURT. J. v;r;~""/\l-It\n'l?d ,l,fl't'. '" "'t 'r.'Xj:1 O I 'II"'} . ",,' I ' . i'i' lJ- hili .b H,'/:t '- _ I '", ',....\....'-~l~:'r..,_i""...,; ~'; L. :U ~~,:Lo-lJ.:jL ,! I ~ .?- M '. i!' I " \,.,:: " ".- il-'~ ,"- " 'f! ~- I S i" f_:.- <.' :':'J>< "" :. .. )i{l(~ .... . .. r t... . 7i:~"~:17 ..i\;.,J:-.~ '\;;(~;,~;:I\ ..';:111 :;j::Y:;/. tilt ,,: ',: ;(I~t;~{~~~f .of,)"'-'" ',.. ,.".1' ./;' ;: ... :" , t_. -'""-". . JUN 0 4 ~(., . CHARLES W. FITZPATRICK, I IN THE COURT OF COMMON PLEAS OF plaintiff I CUMBERLAND COUNTY, PENNSYLVANIA I v. I NO. 95-6565 Civil Term I DOROTHY J. FITZPATRICK, I CIVIL ACTION Defendant I IN DIVORCE PftI'l'IOII '1'0 Sft IIIlARIIlG AND NOW, comes Charles W. Fitzpatrick, plaintiff/Respondent in the above captioned action, by his attorney, David T. Kluz, who petitions this Court to set a hearing. In support of the petition the following is allegedl 1. On March 10, 1997, counsel for Dorothy J. Fitzpatrick filed a Petition for Enforcement of Marital Settlement Agreement. 2. All Exhibits to that agreement a Marriage Settlement Agreement and a Divorce Decree were appended. 3. On March 13, 1997, Judge Hoffer signed an order r_stablishing the preexisting status quo whereby Charles W. Fitzpatrick paid $ 1,800.00 per month to Dorothy J. Fitzpatrick. 4. On March 20, 1997, counsel for Plaintiff/Respondent filed an Answer. 5. All payments required by order of the Domestic Relations Office and by order of Judge Hoffer have been paid to date. 6. Defendant/Petitioner has refused to cooperate in any meaningful way toward resolving this matter. 7. Compliance with the order is onerous, burdensome and not called for by the terms of the agreement and existing facts. C1iIl'l'II'ICA'l'Il QI' SBRVICB I, ILLlN H. HOWl, Legal Aaehtant, certify that I have eerved a copy of the foregoing docUll8nt on the individual Heted below by depoeiting the e_ in the United Statee Hail, Firet Claee, poetage prepaid, at Harrhburg, Penneylvanial ThOllAe D. Gould, lequire 2 Beet Hain Street S.'_~:~D~~ Illen Howe, Legal Aaeietant uet Street, Suite 404 Harrieburg, PA 17101 (71') 238-8183 Doto.iJJ)a}ch .( " CHAALlS H. FITIPATRICK, PLAI~IFF/RlSPONDINT Y. IN THE COURT or COMMON PLEAS CUMBIRLlUfD comrn, PIDSn.VAJlIA HO. 95-6565 CIVIL TERM CIVIL AC'l'ION III DIVORCE DOROTHY J. FITIPATRICK, DEFENDANT/PETITIOIIIR OIU)ER AND NOW, this ,,/fI- '7 day of October, 1997 upon review and consideration of information contained in the pleadings, it is hereby ordered that a hearing be held in Courtroom #__~, at 1.;.jQ .Ar<<. on &!rtJ1!ie ,;27 , 1997, to resolve the issues raised in the Petition '1'0 Enforce Marital Settlement Agreement (MSA) and the resulting Answer and New Matter. BY THE COURT: ~ .. . CHARLEs N. FITIPATRICK, PLAIKTIFF/RlSPO.DI.T I I IN THI COURT OF COMMON PLIAS CUNaIRLAMD COUWTr,PIIWSILVANIA NO. 95-6565 CIVIL TERM CIVIL ACTIO. I. DIVORCI Y. . . DOROTHY J. FITIPATRICK, DEFE.DANT/PETITIO.ER I I I I PETITION TO SET HlARINO AND NOW come. the Petitioner, Dorothy J. Fitzpatrick, by and through her attorney, Thomas D. GOUld, and files this petition .eeking a hearing on her Petition To Enforce Marital Settlement Agreement (MSA) based on the following facts: 1. The Petitioner, Dorothy J. Fitzpatrick, filed a Petition For Enforcement of Marital Settlement Agreement on August 28, 19517. 2. This honorable court issued an Order on August 251, 151517 giving Respondent, Charles W. Fitzpatrick, 20 days from the date of .ervice to respond to the petition. 3. On or about September 3, 151517 Respondent filad hi. ra.pon.a, including New Matter. 4. On Octobar 51, 151517 Petitioner responded to Respondant'. Naw Hattar. 5. The parties have not been able to resolve their differenca.. WHEREFORE, petitioner requeats that this matter be listad for argument before this honorable court. Respectfully .ubmitted, ~b.~ Thomas D. Gould I.D./36508 2 East Main Street Shiremanstown, PA 17011 (717) 731-1461 r;u:n. O~T;Cr: cr l' " , ",Tn;Y 91 (1r.i 1:: r i. I: ~j! Cil" ' , .,."t_ h:,'j' ',', i'( " ",.oI"l "'.I','j,. 'I',' '.; I,. ,'-' , .. " .. . , Y. I I I I I I I IM THJ: COURT OF COMMOM PUU CUMBEJU.AJlD COUll'rY, PlnULVUIA MO. 95-6565 CIVIL TERM CIVIL ACTIOM IM DIVORCE CHAIlLIS W. FITIPATRICK, PLAIMTIFF/IlISPOMDEMT DOROTHY J. FITIPATRICK, DIFEMDAMT/PETITIOMER CERTIFICATE OF SERVICI AND NOW, this ~r( day of october 1997, I, Thomas D. Gould, Esquire, Attorney for Petitioner, hereby certify that I have this day sent a copy of Petitioners' Petition To Set Hearing by depositing a copy of it in the United States mail, postage prepaid, addressed to: David T. Kluz, Esquire 212 Locu~t Street Suita 404 Harrisburg, PA 17101 DATED /~('f(q, -r1a-.- b. h-w Thomas D. Gould, Esquire ID # 36508 2 E. Main Street Shiremanstown, PA 17011 (717) 731-1461 Fax 761-1974 CHAaLlI N. PITI.ATRICK, 'LAI~IPP/RlSPOJlDI~ I I I IJI THJ: COURT or COIOCOJI 'LUS CIlMBJ:IUJUID COUlfU, PlnSnVUIA v. NO. 95-G56~ CIVIL TERM DOROTH~ J. PITIPATRICK, DJ:PJ:lDUT/PITITIOIfIR I I I CIVIL ACTIOJl IN DIVORCJ: PJ:TITION TO J:JfPORCJ:MJ:~ or MARITAL SIT1'UMB~ AGRlJ:MJ:~ AND NOW comes the Petitioner, Dorothy J. Fitzpatrick, by and throuqh her attorney, Thomas o. Gould, and files this petition .eekinq reimbursement of her attorney fees and costs based on the followinq facts. 1. The Petitioner is Dorothy J. Fitzpatrick who reside. at 499 Linden Street, Mechanicsburq, PA 17055. 2. The Re.pondent is Charles w. Fitzpatrick who reside. at 7 Donald Street, Mechanicsburq, PA 17055. 3. The Petitioner and Respondent were married on January 12, 1974. 4. A Complaint in Divorce was filed by Respondent on November 16, 1995. 5. The Divorce Decree was issued on July 9, 1996. 6. A Marital Settlement Aqreement (MSA) was executed by the parties on June 7, 1996. 7. The MSA was incorporated into the Decree In Divorce. 8. On March 10, 1997 Ms. Fitzpatrick filed a petition For Enforcement Of Marital settlement Agreement. 9. On June 30, 1997 a hearing was held on Ms. Fitzpatrick's petition. 10. After a full evidentiary hearing Judge Hoffer ordered Mr. Fitzpatrick to reinstate Ms. Fitzpatrick's employment and to abide by the termS of the MSA dated June 7, 1996. copy attached as exhibit A. 11. The MSA, in paragraph LS provides that If either party to this Agreement resorts to a law suit or other legal action to enforce the provisions of this Agreement, the successful party ,hAll be entitled to recover hi~ or her reasonable counsel fees, actually incurred... (Emphasis added). 12. In a letter dated July 2, 1997 petitioner's counsel made a demand for $866.00 in counsel fees and costs. Copy of letter attached as exhibit B. 13. petitioner made another demand upon aespondent in a letter dated July 24, 1997. Copy of letter attached as exhibit C. 14. In a letter dated July 28, 1997 aespondent's attorney indicated that it was his interpretation that Ms. Fitzpatrick had waived her right to reilllburs8lllent of her counsel fee. and expen.e. lS. At no time has aespond~nt challenged the reasonableness of the demanded counsel fees or costs. LAW OFFICE OF THOMAS D. GOULD m THOMAS Q. GOULD MICMAeL S. TRAVIS' 2 eAsr MAIN srREer SMIREMANsrOWN.PA 1701\ (7\7) 731.14S\ FAX 751.1974 'A()UInta "IW JIASIY ..11I July 2, 1997 David T. Kluz, Esquire 212 Locust Str~et suite 404 Harrisburq, PA 17101 ae: Fitzpatrick Dear Dave: I believe that it is important to schedule a return to work ~or Ms. Fitzpatrick. She was planninq on returning to PMA on Monday at 4:00 PM but she had no key and had been in~ormed that she was replaced. She did contact the o~~ice o~ Fitzpatrick Cleaning, Inc. and was in:ormed that Mr. Fitzpatrick had not decided what he was going to do with her. Ms. Fitzpatrick has in~ormed me that you had contacted Legal Services to modi~y the PFA so as to allow Mr. Fitzpatrick to go to Ms. Fitzpatrick's place 0: employment. Durinq the 7 or so years that our clients owned the busine.s, Mr. Fitzpatrick did not have a need to supervi.e Ms. FitzpatriCk's work. He does not have a need to supervise it now. I: he wants to check her work, he could do so be~ore and a~ter her work hours. She will not agree to modi:y the PtA. I~ Hr. Fitzpatrick believes that it will be impossible ~or him to continue to employ Ms. Fitzpatrick in a pro~essional manner, he could propose a buy out o~ her contract. As I stated in my previous letter, the replacement value o~ Ms. Fitzpatrick'. work is about $260.00 per month. She would consider acceptinq Sl,540.00 ($1,800.00-$260.00) in lieu o~ workinq the 10-12 hours per week ~or Fitzpatrick Cleaninq, Inc.. However, Mr. Fitzpatrick would still be required to maintain her medical coveraqe, either through the corporation or by payinq her COBRA premi\llllll. The alternative would be :or Hr. Fitzpatrick to pay the amount owed in a lump sum. pursuant to paraqraph 15 o~ the Marriage Settlement Aqreement (MSA) , i: either party resorts to legal action to en~orce provisions o~ the Aqreement, the success~ul party (MS. Fitzpatrick) shall be entitled to recover her reasonable counsel fees ~rom Mr. Fitzpatrick as a part o~ the judgment. I hope that it will not be necessary to petition the court on this issue. Ms. FitzpatriCk's reasonable attorney ~ees to enforce the provisions o~ the MSA total $866.00. Please have Mr. Fitzpatrick ~orward payment directly to Ms. Fitzpatrick. Please contact me if you have any questions. E'li.\,'\ 6',-1'" '(; . 'I I m LAW OFFICE OF THOMAS D, GOULD THOMAS O. OOULD MICHAEL S, TAAVIS' 2 !Asr MAIN SrA!!T SHIA!MANsrOWN,PA 17011 (717)731."81 FAX 781.1i7. tAOMlntO HIW JIItS....~. July 24, 1997 Oavid T. Kluz, Esquire 212 Locust Street Suite 404 Harrisburq, PA 17101 ae: Fitzpatrick eleaninq, Inc. v. Oorothy Fitzpatrick Oear Oave: I am in receipt of your July 21, 1997 letter. I have met with my client and, pursuant to Judqe Hoffer's decision, she will be nturninq to her previous employment under the same terms and conelitionl in place prior to her unlawful dismissal. Your July 21, 1997 letter places new conditions and job duties on my client that are not acceptable. It is understandable that Fitzpatrick eleaninq , Inc. would neeel a W-4 torm, but there appears to be no leqitimate reason or rationale tor her to complete an Application tor Employment torm after all these years. Hr. Fitzpatrick knows her name, addre.., social security number and other relevant information requesteel on the application. please explain the leqal need to obtain any other information. Ms. Fitzpatrick will complete and return her W-4. The qeneral job description provided is new and informative, but it is not relevant to Ms. Fi~zpatrick's employment lituation. Under the term. ot the MSA Ms. Fitzpatrick was to continue to work tor Fitzpatrick eleaninq, Inc. as Ihe had in the past. This was done at the request of Hr. Fitzpatrick with the understandinq that her hours and work schedule would be flexible as it had been in the pa.t. Her work schedule wa. to be worked around her school schedule and the activities and weltare of the children. It .he neeeled a day ott .he would take it or it she wasn't able to do the cleaninq on a Friday niqht, she could do it anytime prior to the nclientn returninq to work on Monday. In the pase there wa. not a neeel to have M.. Fitzpatrick work specitic work hours on specific day.. I believe that the burden il on Fitzpatrick eleaninq, Inc. to show a chanqe in circumstances that support a leqitimate need for requirinq exact hours and times. Hs. Fitzpatrick will attempt to be punctual in arrivinq and leavinq her place of employment, however, her inability to meee the strict timls Ihould in no w.y jeoparcUze hsr employment. As in the past the mOlt important i.sue il that the work be done in a proteslional manner. At no time has any client ever questioned the quality of the work pertormed by M.. Fitzpatrick. E:~h'd;\+ C- " . The new "Duties at I?MA GROUI?" is unacceptable. Fitzpatrick Cleaning, Inc. has attempted to increase Ms. Fitzpatrick's duties without increasing her hours. The lavatories, ot which there are tour (4), were cleaned by Dan while Ms. Fitzpatrick pertormed the other duties that had been assigned to her. Under the new schedule, on the days Ms. Fitzpatrick is not working, the duties assigned to her are done by two (2) individuals. While Ms. Fitzpatrick has been away trom her work, the new assigned duties have been pertormed by another employee who has reported that it tllke~ him 5 ]/2 to (, r.our~ to com"I"'." t'1.' rll:~:."r:. ~!r.. Fit72'trkl: will report to work and perform the duties that were assigned to her prior to her unlawtul termination, She will not accept the new duties ot cleaning the lavatories, cleaning the retrigerator every other Friday, cleaning glass, dusting, emptying and cleaning the cottee pot or handling any ot th~ paper products. It is true that Judge Hoffer sarcasticly noted that Ms. Fitzpatrick is being paid $45.00/hour. He went on to state that clearly there was more to the agreement than having Ms. Fitzpatrick work as an employee. He stated that she was doing the work that was basically unskilled that could be, and was being performed by other employees tor So.OO/hour. As stated earlier, Ms. Fitzpatrick has always had a flexible schedule. The MSA acknowledges the need tor nexibility. Any attempt by Fitzpatrick Cleaning, Inc. to reduce her contracted salary of $1,800.00 per month due to sickness, emergencies or even time clock discrepancies will be met with legal action. Ms. Fitzpatrick will do her previously assigned duties. She will stay atter 8:00 p.m., without an increase in salary, it necessary to complete her tasks. She has and will continue to perform her work in a professional manner. I have received a copy of the Motion and Order that you filed with Judge Hess. Your action wa~ unprofessional and violated the Local Cumberland County rules. aecause there were tactual issues not ot record incorporated into your Motion you were required to submit an Order to Show Cause. You sought and obtained an ex parte order concerning a known contested matter. You raised the issue beton Judge Hotter and he indicated that eitller Ms. Fitzpatrick didn't need supervision, or that Mr. Fitzpatrick could inspect her work after she had lett. Your July 21, 1997 letter to me indicated that Mr. Fitzpatrick or another employee of FCI would check the work site atter ~:OO p.m. You ullethically tailed to include that intormation in your Motion to the Court. I do not represent M.. Fitzpatrick in her I?FA action. However she is represented by Legal Service.. I have been informed cy Leqal Services that you contact them and were told that Ms. Fitzpatrick would not aqree to an amendment ot the I?FA. You, in violation ot the Cumberland County rule., neglected to intorm the ccurt of the non-concurrence ot the other side. In tact you never made any attempt to serve opposing counsel prior to tiling your ex parte Motion. I have spoken with Joan Carey, the attorney from L~gal Services who represents Ms. Fitzpatrick and she has intormed me that she will take legal action to vacate Judge Hess's improperly issued order. I I, . I '. I At this point if Mr. Fitzpatrick app.ars at Ms. Fitzpatrick" work .it. while .h. is working, it will b. d..m.d that h. is th.r. for the purpo.. of harassm.nt sin~. h. has no l.gitimat. r.ason for b.ing th.r.. Th.r. are alt.rnativ.s available to him without the n..d to confront Ms. Fitzpatrick. In addition sine. Mr. Fitzpatrick is .uppo.. to b. sp.nding quality time with hi. children during M.. Fitzpatrick', work hours, h. would have to leave his childr.n just to "supervis." his form.r wife. Ms. Fitzpatrick nev.r did, and still does not, need supervision to do tll\! job "lie has been cluing l?J:ofe:...~i';ad~ly f;;'l" yeats. R.garding the children, Mr. Fitzpatrick has been showing up .arly and r.turning the children lat.. According to the PFA Mr. Fitzpatrick i. to b. at Ms. Fitzpatrick's horn. for no more than 5 minut... Wh.n h. .hows up at 3:45 p.m. for a 4:00 p.m. pick up, the childr.n ar. not r.ady and h~ .nds up violating the PFA. Th. r.turn time i. .ch.dul.d fet' 9: 00 p. m. The children should b. return.d on tim.. Mr. Fitzpatrick should notify Ms. Fitzpatrick if th.r. is going to b. a probl.m. It is my und.rstanding that Mr. Fitzpatrick h.. claim.d that h. C,1n not return the children by 9: 00 p.m. due to church. I have information that the church is ov.r by 8:30 p.m. and that would give Mr. Fitzpatrick 30 minutes to trav.l the f.w mil.s to Ms. Fitzpatrick's horn.. It is request.d that you inform Mr. Fitzpatrick of his legal obligation to follow the PFA and custody sch.dul.. M.. Fitzpatrick has inform.d m. that sh. has not r.c.iv.d h.r r.imbur..m.nt ch.ck for h.r attorn.y f.... To avoid furth.r l.gal action, and additional costs and attorn.y f...s, plea.. have Mr. Fitzpatrick imm.diately r.imburs. Ms. Fitzpatrick h.r $855.00 in attorn.y f.... Thank you for your att.ntion to th.s. important matters. Sinc.r.ly yours, 1Amt...... D. ~ Thomas D. Gould cc. Dorothy Fitzpatrick "-'- ;'_-.2_....~,...oH~:'~1,.:,"r;-,I"",',.,;.,,;:-J;!t:_' . ._~....... .....".... ~.,-' -- . I, . . I. I I certify that the followinq i3 an accurate accountinq of the attorney fee. and coata incurred by Dorothy Fitzpatrick to enforce the Marital Settlement Aqreement dated June 7, 1996 throuqh the enforcement hearing of June 30, 1997. DATE TIME AC'rIVITY Fee 03/08/97 1/4 hr Telephone call trom you 15.00 03/08/tJ7 1/4 Oftice conference w/client 15.00 03/10/tJ7 1 112 prerared Petition to Entorce MSA tJo.OO 03/10/tJ7 3/4 Otf ce conterence w/client 45.00 03/10/tJ7 1/4 Filed Petition with Court 20.00 03/10/tJ7 3/4 Travel to file Petition 30.00 03/10/tJ7 1/2 Letter to Atty Kluz wI petition 30.00 OS/21/tJ7 1/4 Telephone call with Kluz 15.00 OS/27/tJ7 1/4 Telephone call with client 15.00 OS/28/tJ7 1/4 Telephone call from client 15.00 06/0tJ/tJ7 1/4 Letter to Kluz 15.00 06/10/tJ7 1/4 aec'd . rev'd Petition filed by Kluz 15.00 06/ltJ/tJ7 2 1/4 Office conference w/client 135.00 06/24/tJ7 Is Obtained , s~nt out subpoenas 30.00 Subpoena Fee 6.00 06/26/tJ7 1/4 Telephone call with Linda trom Wa.ilefski/Peters 15.00 06/301tJ7 2 Is Prepared tor hearing 150.00 06/30/tJ7 2 1/4 Hearing . 180.00 06/30/tJ7 3/4 Travel tor hearinq 30.00 Total 866.00 1iw'M~ t . J.:L,..J~ Thoma. D. GoulCi Attorney For Petitioner CJfA.-1'.1I!1 W. rI'rIPATRICK, PLlI~Irr/"S.o1D11'r . . I. 'rHZ COVJlT or COIOCO. PLL\I CUKlIRLAlD COUITY,PI..IYLVAlIA .0. 95-'565 CIVIL TIRM Y. I I I I I I CIVIL ACTIO. I. DIVORCI DOIO'rKI ~. rITIPATRICK, DlrllD.-or/PITITIO.IR ..S.o..1 TO .0 HAftER AND NOW, comes the Petitioner, Dorothy J. Fitzpatrick, by and through her attorney Thomas D. Gould, and files this response to aespondent's, Charles W. Fitzpatrick's, New Matter. 19. Admitted that Petitioner in her March of 1997 Petition alleged that she had incurred attorney fees to enforce the terms of the MSA. 20. Admitted. By way of further answer, Respondent admitted in his Answer (paragraph 20) filed March 20, 1997 that "if either party resorts to a suit or other legal action to enforce the provisions of the MSA, the successful party shall be entitled to recover his or her reasonable counsel fees, actually incurred, .fIgm the other." (emphasis added) 21. Admitted that the attorney fees issue was not litigated during the course of the abbreviated hearing on the condensed issue of whether Mr. Fitzpatrick had violated the MSA. Denied that Petitioner waived her claim for attorney fels as provided for in the MSA. By way of further answer, the Petitioner's right to attorney fees did not accrue under the terms of the MSA until the Court found that Hr. Fitzpatrick had violat.d the HSA. How.v.r, und.r the t.rm. of the HSA, upon the finding of the Court that Hr. Fitzpatrick violat.d the HSA, h. became liable for H.. Fitzpatrick. coun..l f.... Th. only i..ue for the court would have b..n the amount of attorn.y f... which has never been conte.t.d by the R..pond.nt. In fact the R..pond.nt admitt.d in it. An.w.r, paragraph 16, that P.tition.r incurr.d actual attorn.y f... and .xp.n... of $866.00. 22. D.ni.d that paragraph 15 of the HSA permit. the imposition of attorney fees. Rather paragraph 15 of the HSA make. it a contractual obligation for the losing party to pay the .ucc..sful party'. COUnsel fees. This petition is to enforce that provi.ion of the HSA. 23. Deni.d that R..pondent i. .ntitled to attorn.y f.... R..p.ctfully submitt.d, , ~0j,\'1).~ Thoma. D. Gould, E.quire ID I 36508 2 E. Hain Str..t Shir.man.town, PA 17011 (717) 731-1461 Fax 761-1974 " Y. I I I I I I IN THE COURT or COMMOI 'LIAS CUMBERLAND COUIT~,PI"SrLVAIIA NO. '5-6565 CIVIL TIRM CIVIL ACTIOI II DIVORCE CHAaLlS W. rIT.PATRICK, PLAINTIrr/RlsroIDENT . . DOROTHY J. rIT.PATRICK, DlrIIDAIT/PITITIOIER CERTIrICATI or SIRVICI AND NOW, this ~r4- day of October 1997, I, Thomas D. Gould, z.quir., Attorn.y for petitioner, hereby certify that I have this day ..nt a copy of petition.rs' a.spons. to N.w Hatt.r by d.po.itinq a copy of it in the Unit.d Stat.s mail, postaq. pr.paid, addr....d to: David T. Kluz, Esquir. 212 Locust Str..t Suitoi 404 Harrisburq, PA 17101 DATED 10 I.. {'I, ~"b.~ Thomas D. Gould, Esquire ID # 36508 2 E. Hain Str..t Shiremanstown, PA 17011 (717) 731-1461 F.u 761-19-74 CHARLlS W. PITZPATRICK, I IN THE COURT OP CONNON PLIAS or plaintiff/ae.pondent I CUMBBRLAND COUNTY, PENNSYLVANIA I v. I NO. 95-6565 CIVIL TBaK I DOROTHY J. PITZPATRICK, I CIVIL ACTION Defendant/Petitioner I IN DIVORCB PLAIRI" IUSPOmlIUl'r' S AIISDR 1. AdIIIitted. 2. AdIIIitted. 3. AdIIIitted. 4. AdIIlitted. 5. AdIIIitted. 6. AdIIIitted. 7. Adaitted. 8. Denied. The term8 of Paragraph 7 .peak for th...elve. without interpretation by Petitioner. 118. Pitzpatrick received far .ore than $ 1,800.00 per month in consideration for her giving up her interest in the fully busines.. . 9. Denied. Petitioner was to work an average of 10 to 12 hours per _ek. 10. Denied. Charle. Pitzpatrick has no particular knowledge of what the intent of Dorothy Pitzpatrick was when the marital asseU _re diBtributed. The Agre8lllent calls for her to be an ..ployee of the company and to work for her payment. 11. Denied. The alleqation as advanced makes no sense and is incapable of a proper response. In the event that the court deems that a response is necessary, Respondent asserts that Petitioner has iJlproperly taken cleaninq accounts from his business which supply her wi~h a prilllary means of support. 12. Denied. Aa was stated in the reason for firinq Ha. rit.patrick, she refused to properly keep her time, meet the requi~nts of the customer specifications or qenerally abide by her ..ployer's directions. 13. Denied. All courte.ies and consultations afforded Ha. rit.patrick were equal or exceedinq those supplied other employees. 14. Denied. Mr. Fit.patrick denies that he has ever had a conver.ation with Dorothy Fit.patrick with reqard to employee re.pect. 15. Admitted. 16. Admitted. 17. Denied. Charles Fit.patrick has no particular knowledqe of Dorothy rit.patrick'. under.tandinq. 18. Denied. This allegation is a conclusion of law to which an ans_r is not required. It is denied that terminatinq Ms. rit.patrick's employment is a breach of the contract. 19. Denied. Respondent has no particular knowledqe with reqard to expenses incurred by the Petitioner. 20. Admitted. WHlRI'ORl, Plaintiff/Re.pondent, Charles pit.patrick d...nd. jud~nt in hi. favor. Re.pectfully .ubmitted, D<Y~'~ 1.0. . 18005 212 Locu.t Street, suite 404 Hard.bur;, PA 17101 (717) 238-8183 Attorney for P1aintiff/Re.pondent Date. f\Lt:\1-0i flCF. (\1.: "n ~" ~.,...,,,, \l",.,n\1 II " .1\.1 91 ~"".~ \3 f:, \ \0: (12. cu-" 1',_\ .,~ " ,1\, 1'\' 1,1.... _'" . ,,_ ' -' - ',1 r'\:N:<'~'<~,JI'~: ,~H \ 6. A Marital Settlement Agreement (MSA) was executed by the parties on June 7, 1996. A copy of the fully executed Agreement is attached as exhibit B. 7. The MSA was incorporated into the Decree In Divorce. 8. Pursuant to paragraph 7 of the MSA Dorothy J. Fitzpatrick, in exchange for giving up her interest in the marital business (Fitzpatrick Cleaning, Inc.) was to remain an employee of Fitzpatrick Cleaning, Inc. at an inflated wage until December 31, 1999 or until completion of the college courses she is taking to obtain a teaching certificate. Ms. Fitzpatrick had the option of extending her employment status for an additional six (6) months if she has not secured employment. 9. Ms. Fitzpatrick was to continue to work her regular 8-12 hours per week and receive $1,800.00 per month, plus continued paid medical coverage. 10. It was the intent of the parties that the $1,800.00 was part of the equitable distribution of the marital assets in the form of alimony/support that was to allow Ms. Fitzpatrick the opportunity to gain the education and training to begin her career. 11. Since Ms. Fitzpatrick was/is a full time student the $1,800.00 was/is her primary means of support for herself and her two minor children. 12. At all times before and after the execution of the MSA Ms. Fitzpatrick has performed her duties for Fitzpatrick Cleaning, Inc. in professional manner. 13. During the past several months Mr. Fitzpatrick has changed Ms. Fitzpatrick's job duties and responsibilities without consulting with her or giving her the courtesies accorded other employees of Fitzpatrick Cleaning, Inc.. 14. Ms. Fitzpatrick has notified Mr. Fitzpatrick on a number of occasions that she would like to be treated with respect. 15. On Saturday, March 1, 1997, Ms. Fitzpatrick received a certified letter from Mr. Fitzpatrick informing her, for the first time, that her work was not done in a professional manner. 16. On Saturday, March 8, 1997 Ms. Fitzpatrick received a letter dated Friday, March 7, 1997, from David Kluz, the attorney for Fitzpatrick Cleaning, Inc., informing her that her employment with Fitzpatrick Cleaning, Inc. was terminated effective Friday, March 7, 1997. 17. It is Ms. Fitzpatrick's understanding that Mr. Fitzpatrick was not only terminating her employment, but that he was also te~nating the $1,800.00 monthly payment and her medical coverage. 18. Mr. Fitzpatrick, by terminating Ms. Fitzpatrick's employment and terminating the $1,800.00 monthly payment, has breached the terms and conditions of the MSA. 19. Ms. Fitzpatrick has incurred attorney fees to enforce the terms and conditions of the MSA. VERIFICATION I verify that the stat8lllents made in this Petition For Bnforc..ent of Marital Settlement Aqreement are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relatinq to unsworn falsification to authorities. ~~ Date: .3 J 10 I '/ l , .! MARRIAGE SETTLEMENT AGREEMENT r., \ THIS AGRIlIllCIlIlT, made this -! ;.::' day ot '. :(,,00.,,",- 1996, by and between CHARLES w. rITZVATRICX, hereinatter reterred to as HUSBAND and DOROTHY J. rITZVATRICX, hereinatter reterred to .s WIFE. WIT H E SSE T HI WKllaIlAS, the parties were lawtully married on January 12, 1974 in Marlton, New Jersey; and WKllaDS, two children have been born as a result ot this marriage, namely MATTHEW LEVI FITZPATRICK, D/O/B June 2, 1981 and JOSHUA LUCAS FITZPATRICK, D/O/B November 28, 1983; and WKllaDS, certain ditterences have arisen between the parties as a re.ult of which they have decided to separate and to live .eparate and apart trom one another, and it is the intention of the HUSBAND and WIFE to live separate and apart tor the rest of their natural lives, and the parties hereto are desirous of settling fully and finally their respective tinancial and property rights and obligations as between each other, including without limitation, (1) the settlement of all matters between them relating to the ownership ot real and personal property; (2) the settlement of all matters between them relating to past, present and future support and/or alimony; and (3) the settlement of all matters concerning custody and support of the minor children; and WHEaEAS, during the parties' marriage there has been a complete disclosure of the earnings and property of each party, and E~lb:t .B I . .. each understands his/her rights under the Divorce Code of the commonwealth ot Pennsylvania; and WH~RIA8, HUSBAND, having been properly advised by his counsel, R. Mark Thomas, Esquire, and WIFE, having been properly advised by her counsel, Thomas D. Gould, Esquire, the parties, having been so advised by their respective counsel, and tollowing tull and complete disclosure with regard to marital assets and the re.pective value ot those assets, the parties hereto have como to this agreement, which tollows: IIOW, THIRII'ORI, in consideration ot the above recitals and the tollowing covenants and promises mutually made and mutually to be kept, the parties, intending to be legally bound, agree as follows: 1. AGREEMENT NOT TO BE A BAR TO DIVORCE PROCEEDINGS A Complaint in Divorce was tiled on November 16, 1995 to Term and No. 95-6565 in the Court ot Common Pleas of Cumberland county, pennsylvania. The parties intend to secure a mutual consent, no- tault divorce pursuant to the terms ot Section 3301 (c) ot the Divorce Code ot 1980. The Divorce Complaint tiled by the HUSBAND on November 16, 1995 was served on WIFE by certitied mail, return- receipt requested on November 17, 1995. 90 days have passed since the tiling ot the complaint in Divorce and both parties hereby agree to execute an Attidavit of consent and a Waiver of their right to receive Notice of Intention to Seek Entry ot a Divorce Decree. The parties agree that unless otherwise specifically provided herein, this Agreement shall continue in full force and 2 o , " ettect atter such time the tinal Decree in Divorce is entered with respect to the parties, and the parties agree that this Agreement shall be incorporated into the tinal Decree in Divorce. No Court may change the terms ot this Agreement, which shall be entorced in accordance with its terms. 2. PERSONAL RIGHTS HUSBAND and WIFE may and shall, at all times hereattsr, live separate and apart. Each shall be tree trom all control, restraint, interterence or authority, direct or indirect, by the other in all respects as tully as it he or she were unmarried. Each may reside at such place or places as he or she may select. Each may, tor his or her separate use or benetit, conduct, carryon and engage in any business, occupation, protession or employment which to him or her may seem advisable. This provision shall not be taken, however, to be an admission on the part ot either HUSBAND or WIFE ot the lawtulness ot the causes which led to or resulted in, the continuation ot their living apart. 3 . DEBTS With regard to joint debts, HUSBAND and WIFE have only one joint debt with a balance outstanding and that is the mortgage on the marital residence. pursuant to the terms ot this Agreement WIFE agrees to accept tull responsibility tor the regular monthly mortgage payments and to hold HUSBAND harmless and to indemnity HUSBAND tor any payments on the mortgage which he may be compelled to make. 3 , , " Each ot the parties is responsible tor any debts that they have personally acquired since March 1, 1994, the date ot separation. In the event that either party is compelled to make payments on the debts acquired by the other party since March 1, 1994, the party who actually acquired the debt will hold harmless and indemnity the other tor any monies paid on account ot such debt. 4. PERSONA~ PROPERTY HUSBAND and WIFE hereby acknowledge that they have agreed upon the division ot all tangible personal property, including jewelry, clothing, turniture, household equipment, appliances, motor vehicles, recreational vehicles and tools. The parties have already divided the personal property according to their agreement and each party is hereby the sole owner ot any personal property now in their possession. This Agreement shall act as a Bill ot Sale evidencing the complete and tinal transter ot all personal property to the respective parties. HUSBAND and WIFE agree to cooperate in the transter ot all titles and insurance regarding all motor vehicles or recreational vehicles in the possession ot either party. 5. AFTER-ACOUIRED PERSONAL PROPERTY Each ot the parties shall hereatter own and enjoy, independently ot any claims or rights ot the other, all items ot personal property, tangible or intangible, hereafter acquired by him or her, with full power in him or her to dispose of the same as 4 " . " fully and effectively, in all respects and for all purposes, as though he or she were unmarried, 6. MARITAL RESIDENCE HUSBAND and WIFE are the owners by tonant. by the entireties of the marital reddence located at 499 Linden street, Mechanicsburg, Cumberland County, Pennsylvania. HUSBAND hereby agress to transter all his right title and interest in the marital residence to WIFE so that WIFE will become the sole and exclusive owner of the marital residence. HUSBAND will transfer all his right title and interest by way of a deed, a copy of which is hereby attached to this agreement as Exhibit "A". WIFE is to make good faith efforts to refinance the outstanding mortgage on the marital residence into her name alone so that HUSBAND will not bear any financial responsibility tor the marital residence. WIFE shall have one (1) year from the date of final execution of this Agreement within which to retina nee the outstanding mortgage obligation in her name alone. However, it is undsrstood that WIFE has previously made an effort to have the house refinanced in her name alone and she will continue to make a good faith effort to the have the refinancing done as soon as possible. In the event that WIFE is unable to accomplish the refinancing of the marital residence mortgage obligation in her name alone it is hereby agreed that after the expiration of one year from the date of final execution of this Agreement, the marital residence will be solei. Should this occur WIFE will 5 . , receive all the net proceeds from the sale of the marital residence. 7, FAMILY BUSINESS HUSBAND and WIFE have operated a family business which is incorporated and is titled "Fitzpatrick Cleaning, Inc,", pursuant to the terms of this Agreement WIFE will surrender and transfer all her shares in the corporation known as "Fitzpatrick Cleaning, Inc.", to HUSBAND so that HUSBAND will be the sole owner of the family busine.s and corporation. HUSBAND hereby agrees to hold WIFE harmless and to indemnify WIFE on any claims made against Fitzpatrick Cleaning, Inc. for past or future claims. It is agreed however that WIFE will continue as a fUll-time employee of Fitzpatrick Cleaning, Inc. and will receive a monthly gross salary in the amount of $1,800.00, plus medical coverage. WIFE'S employment with Fitzpatrick Cleaning, Inc. and the medical coverage, will continue until December 31, 1999, or until the completion of college courses which WIFE is currently taking for the purpose of obtaining a teaching certification, whichever first occurs, If, at the end of this-time period WIFE has not secured employment then WIFE will have the option to extend the Agreement with regard to her full-time employment and medical coverage for an additional six (6) months. Although this Agreement states that WIFE will continue to work as a full-time employee of Fitzpatrick Cleaning, Inc., "full-time employee" is defined such that WIFE will work a regularly schedule 6 " , , , ,: ..' work week which will consist ot a minimum ot ten (10) hours work per week and a maximum ot twelve (12) hours work per week. WIFE will work Monday and wedne.day ot each week trom 4:00 p.m. to 8:00 p.m., and will work every other Friday trom 4:00 p.m. to 8:00 p.m. WIFE under.tands and agrees that there will be occasions when she may be called upon to till in tor an absent employee or other emergency. She agree. that in qood taith she will till in to work when called upon unle.. she has a previous committment. HUSBAND aqree. that he will exercise good taith in requesting WIFE to work additional hour. and will only do so it a qenuine need has arisen. It is understood between the parties that in the past two (2) years the WIFE has worked a schedule similar to the one set torth in this Agreement and has been called upon to till in on occasion. However, past experience tor the past two years has been that WIFE has .till only averaqed between ten (10) and twelve (12) hour. work per week. It is the understanding ot both parties that even with WIFE beinq called in on an occasion to work in an unscheduled time period her work will still average between ten and twolve hours per week. , It HUSBAND sells the tamily business prior to December 31, 1999, he aqrees to continue making the payments set torth herein as thouqh WIFE were still working tor the business. HUSBAND will have the option to either reduce the balance ot monies owed to WIFE under this employment agreement to present value and paying her a lump sum, or he may continue to make payments as set torth in this 7 .' " I " . Agreement. a. PENSION AND EMPLOYMENT BENEFITS Neither ot the parties is the owner ot any pension and/or employment benetits not speciticallY mentioned in this Agreement. Each party waives its right, claim or interest in any pension or employment benetit which the other may have. 9. ALIMON\( Both parties acknowledge and agree that the provisions ot this Agreement providing tor equitable distribution ot marital property are tair, adequate and satistactory to them and are accepted by them in lieu ot and in tull and tinal settlement and satistaction ot any claims or demands that either may now or hereatter have against the other tor support, maintenance or alimony. HUSBAND and WIFE turther, voluntarily and intelligently, waive and relinquish any right to seek trom the other any payment tor support or alimony. Each party shall indemnity, detend and hold the other harmlesS against any tuture action ot either support or alimony brought by or on behalf of the other, such indemnity to include the actual counsel fees of the defendant in any such future action. 10. CUSTODY AND CHILD SUPPORT HUSBAND and WIFE will continue to reside in close geographical proximity to one another and they each desire to retain all rights of custody with regard to both children. It is agreed that the children will primarilY reside with WIFE since WIFE will continue to live in the marital residence which has been the home for the a ., , " , children in the past. HUSBAND will continue to have liberal rights with regard to visitation since the parties have been able to amicably work out custody issues without the need tor a court order in the past the parties will continue to resolve visitation issues in like hshion. HUSBAND will pay child support to WIFE in the amount ot $100.00 per month until Matthew graduates trom high school. When Matthew graduates trom high school it is agreed that the parties will evaluate the amount ot support HUSBAND is paying with a purpose toward reducing that monthly amount and ,continuing the lower amount ot support until such time as Joshua graduates trom high school. 11. HPTU~L RESPONSIBILITIES HUSBAND hereby agrees that to the best ot his ability he will continue to work with Fitzpatrick Cleaning, Inc., and maintain the tinancial stability ot the corporation so long as the maintenance is within his control so as to ensure that he will meet the tinancial and employment obligations provided to WIFE under the terms ot this Agreement. WIFE hereby agrees that to the best ot her ability she will tultill her responsibilities as a full-time employee of Fitzpatrick Cleaning, Inc., tor the purpose of helping to maintain the tinancial stability of the corporation. 12. BELEASE subject to the provisions of this Agreement, each party has 9 .' II ,~. .. . released and discharged, and by this Agreement does tor himselt or herselt, and his or her heirs, legal representatives, executors, administrators and assigns, release, indemnity (including actual legal tees) and discharge the other ot and trom all causes ot action, claims, rights, or demands, whatsoever in law or equity, including equitable distribution, spousal support, alimony, counsel fee., alimony pendente lite and expenses which ot the parties against the othe,r ever had, now has, or may have in the tuture under the Pennsylvania Divorce Code, as amended, or under any other statutory or common law, except as set torth below in this paragraph, all causes ot action tor divorce, and all causes of action tor breach of any provisions ot this Agreement, including proceeding. to entorce this Agreement pursuant to the provisions of the Divorce Code. Each party also waives his or her right to reque.t marital counseling, pursuant to the Divorce Code. 13. WAIVERS OF CLAIMS AGAINST ESTATES Except as herein otherwise provided, each party may dispose of hi. or her own property in any way, and each party hereby waive. and relinquishes any and all rights he or she may now have or hereafter acquire under the present or future laws ot any juri.diction, to share in the property or estate of the other as a re.ult ot the marital relationShip, including without limitation, dower, curtesy, statutory allowance, widow's allowance, right to take against the Will of the other, and right to act as administrator or executor ot the other's estate, and any right 10 \ .' .. I... .. , existing now or in the tuture under the pennsylvania Divorce Code, as amended trom time to time, and each will, at the request ot the other, execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry into ettect this mutual waiver and relinquishment ot all such interests, rights and claims. 14. RIGHTS ON EXECUTION Immediately upon the execution ot this Agreement, the rights ot each party against the other, despite their continuing marital status, shall terminate and be as it they were never married. 15. LEGAL FEES It either party to this Agreement resorts to a lawsuit or other legal action to entorce the provisions ot this Agreement, the successtul party shall be entitled to recover his or her reasonable counsel tees, actually incurred, trom the other as a part ot the judgment entered in such legal action, whether in law, in equity or pursuant to the provisions ot the Divorce code, as the same shall be determined by the Court. 16. INCORPORATION IN FINAL DIVORCE The terms ot this Agreement shall be incorporated but shall not merge in a tinal divorce decree between the parties. This Agreement shall survive in its entirety, resolving the spousal support, alimony, equitable distribution and other interests and rights ot the parties under and pursuant to the Divorce Code ot the commonwealth ot Pennsylvania, and no court asked to entorce or 11 . .., . .. . " interpret this Agreement shall in any way change the terms of this Agreement. This Agreement may be enforced indopendentlY of any child support order, divorce decree or judgment and its terms shall take precedence over same, remaining the primary obligation ot'. each party. Except as herein otherwise agreed, this Agreement shall remain in full force and effect regardless of any change in the marital status of the parties. It is warranted, covenanted and repre.ented by HUSBAND and WIFE, each to the other, that this Agreement is laWfUl and enforceable, and this warranty, covenant and representation is made for the specific purpose of inducing the partie. to execute the Agreement. 17. ~DDITIONAL INSTRUMENTS Each of the parties shall from time to time, at the request of the other, execute, acknowledge and deliver to the other party, any and all further instruments that may be reasonably required to give full force and effect to the provisions of this Agreement. 18. ENTIRE AGREEMENT This Agreement contains the entire understanding of the parties and there are no other representations, warranties, covenants or undertakings other than those expressly set forth herein. HUSBAND and WIFE acknowledge and agree that the provisions of this Agreement with respect to the distribution and division of marital and separate property are fair, equitable and satisfactory to them, based on the length of their marriage and other relevant factors which have been taken into consideration by the parties. 12 < .~ , . ,~ I Both parties hereby accept the provisions of this Agreement with respect to the division of property in lieu of and in full and final settlement and satisfaction of all claims and demands that they may noW have or hereafter have against the other for equitable distribution of their property by any court of competent jurisdiction. HUSBAND and WIFE each voluntarily and intelligently waive and relinquish any right to seek a court ordered determination and distribution of marital property, but nothing herein contained shall constitute a waiver by either party of any rights to seek the relief of any court for the purpose of enforcing the provisions of this Agreement. 19. ~ODIFICATION AND WAIVER A modification or waiver of any of the provisions of this Agreement shall be effective onlY if made in writing and executed with the same formality as this AgrBement. The failure of either party to insist upon strict performance of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. , 13 " 'If ..". . ... I 20. YOLUNTARY EXECUTION Each party acknowledges that the Agreement is tair and equitable, that it is being entered into voluntarily, with tull knowledge ot the assets ot both parties, and that it is not the result ot any duress or undue intluence. The parties acknowledge that they have been turnished with all intormation relating to the tinancial attaire ot the other which has been requested by each ot them. 21. PESCRIPTIVE HEADINGS The descriptive headings used herein are tor convenience only. , 14 . \.,.... '. ... ~ ,~ _____~__.~__~__~~~__r~~~~~__.~~ . -- ---~.." , I' , . . " . IN THE COURT OF COMMON PLEAS · . III . : . OF CUMBERLAND COUNTY III .' * III . ,; . STATE OF PENNA. III . ~, , I . . . ....CH~~LF:~..~~... FITZPATRICK,...,........ II . ................... l"ldntH.f. ....... ...... :; N o. .~,~:::,~.~.~.?.... ,....,......,.... . . Vc..SIIS 'I' ': " . " . ....llOR.()1'H~ ,J~.. FITZi?ATRICK,. .1 ~ ., Defendant; ,\ · ! e . . . DECREE IN . ; Del V 0 R '!1E" ;t .ill '2.7 ~ ~ AND NOW. ... .., . .................. 19....... It is ordered and III J ~,' . decreed that... '<;~f'!'l.. . ~'. .ff:r.~~~:r~.~C;~.....,.............. plaintiff, ~ ~ and. .. .. .. . . .. . . P.o.~Q'j:'t1.Y. .<1,. .F.J;'ff\Pl\'l:ijJ~J<.. . . .. . . .. . . ... . ... defendant, ; . are divorced from the bonds of matrimony. " . ; . The court retains jurisdiction of the following claims which have . . be.n raised of record in this action for which a final order has not yet . . been entered; . : ............. .i:::.:~'!:;~;~:~.r.r.~~~~. .l?~!:.t.~P'l!'~r.~ .J;l9r.~E1l!'~r.~............. ::. . ..........,........ ,...,..,.......,................ ..... , : . D y ~ . 1 .... J $ ,fuJoLU 'to /(..ld~(. ~tnt~ ~ ;K'.~, a;;;. . . w ~/7 Prothonotary ... ~ '.' . . . _ ,...._.~ ... . , ..., __ . . .. . . ,. , . ; M -~-~---~-~~~~~~~-~~-~~~ 7.~'f't.. ~~/H:J/ ~4 ~~ 7.?~~ ~ /I!;'~ 1/1' .. .... " ,",- '- ... . - . JlRRIAGE SETTLEMENT AGREEMENT THIS AGRBBKBNT, made this Ii; -. day of '\.1 :.,...,.\.,',. 1996, by and between CHARLES W. rITZPATRICK, hereinafter referred to as HUSBAND and DOROTHY J. rITZPATRICK, hereinafter referred to as WIFE. WIT N E S S B T HI WHBRBAS, the parties were lawfully married on January 12, 1974 in Marlton, New Jersey; and WHIRBAS, two children have been born as a result of this marriage, namely MATTHEW LEVI FITZPATRICK, D/O/B June 2, 1981 and JOSHUA LUCAS FITZPATRICK, D/O/B November 28, 1983; and WHIRBAS, certain differences have arisen between the parties as a result of which they have decided to separate and to live separate and apart from one another, and it is the intention of the HUSBAND and WIFE to live separate and apart for the rest of their natural lives, and the parties hereto are desirous of settling fully and finally their respective financial and property rights and Obligations as between each other, including without limitation, (1) the settlement of all matters between them relating to the ownership of real and personal property; (2) the settlement of all matters between them relating to past, present and future support and/or alimony; and (3) the settlement of all matters concerning custody and support of the minor children; and WHERIAS, during the parties' marriage there has been a complete disclosure of the earnings and property of each party, and '. .. . - . each understands his/her rights under the Divorce Code of the commonwealth of Pennsylvania; and WKlaBAI, HUSBAND, having been properly advised by his counsel, R. Mark Thomas, Esquire, and WIFE, having been properly advised by her counsel, Thomas D. Gould, Esquire, the parties, having been so advised by their respective counsel, and following full and complete disclosure with regard to marital assets and the respective value of those assets, the parties hereto have come to this agreement, which follows: MOW, TRlalrORI, in consideration of the above recitals and the following covenants and promises mutually made and mutually to be kept, the parties, intending to be legally bound, agree as follows: 1. AGREEMENT NOT TO BE A BAR TO DIVORCE PROCEEDINGS A complaint in Divorce was filed on November 16, 1995 to Term and No. 95-6565 in the Court of Common Pleas of cumberland county, pennsylvania. The parties intend to secure a mutual consent, no- fault divorce pursuant to the terms of Section 3301(C) of the Divorce code of 1980. The Divorce complaint filed by the HUSBAND on November 16, 1995 was served on WIFE by certified mail, return- receipt requested on November 17, 1995. 90 days have passed since the filing of the complaint in Divorce and both parties hereby agree to execute an Affidavit of consent and a Waiver of their right to receive Notice of Intention to Seek Entry of a Divorce Decree. The parties agree that unless otherwise specificallY provided herein, this Agreement shall continue in full force and 2 '. " . .. . effect after such time the final Decree in Divorce is entered with respect to the parties, and the parties agree that this Agreement shall be incorporated into the final Decree in Divorce. No court may change the ternls of this Agreement, which shall be enforced in accordance with its terms. 2. fERSONAL RIGHTS HUSBAND and WIFE may and shall, at all times hereafter, live separate and apart. Each shall be free from all control, restraint, interference or authority, direct or indirect, by the other in all respects as fully as if he or she were unmarried. Each may reside at such place or places as he or she may select. Each may, for his or her separate use or benefit, conduct, carryon and engage in any business, occupation, profession or employment which to him or her may seem advisable. This provision shall not be taken, however, to be an admission on the part of either HUSBAND or WIFE of the l.awfulness of the causes which led to or resulted in, the continuation of their living apart. 3 . pEBTS with regard to joint debts, HUSBAND and WIFE have only one joint debt with a balance outstanding and that is the mortgage on the marital residence. pursuant to the terms of this Agreement WIFE agrees to accept full responsibility for the regular monthly mortgage payments and to hold HUSBAND harmless and to indemnify HUSBAND for any payments on the mortgage which he may be compelled to make. 3 ~ . .. , Each of the parties is responsible for any debts that they have personally acquJred since March 1, 1994, the date of separation. In the event that either party is compelled to make payments on the debts acquired by the other party since March 1, 1994, the party who actually acquired the debt will hold harmless and indemnify the other for any monies paid on account of such debt. 4. PERSONAL PROPERTY HUSBAND and WIFE hereby acknowledge that they have agreed upon the division of all tangible personal property, including jewelry, clothing, furniture, household equipment, appliances, motor vehicles, recreational vehicles and tools. The parties have already divided the personal property according to their agreement and each party is hereby the sole owner of any personal property now in their possession. This Agreement shall act as a BJll of Sale evidencing the complete and final transfer of all personal property to the respective parties. HUSBAND and WIFE agree to cooperate in the transfer of all titles and insurance regarding all motor vehicles or recreational vehicles in the possession of either party. 5. AFTER-ACOUIRED PERSONAL PROPERTY Each of the parties shall hereafter own and enjoy, independently of any claims or rights of the other, all items of personal property, tangible or intangible, hereafter acquired by him or her, with full power in him or her to disposp. of the same as 4 t . .. . fully and effectively, in all respects and for all purposes, as though he or she were unmarried. 6. MARITAL RESIDENCE HUSBAND and WIFE are the owners by tenants by the entireties of the marital residence located at 499 Linden street, Hechanicsburg, cumberland county, Pennsylvania. HUSBAND hereby agrees to transfer all his right title and interest in the marital residence to WIFE so that WIFE will become the sole and exclusive owner of the marital residence. HUSBAND will transfer all his right title and interest by way of a deed, a copy of which is hereby attached to this agreement as Exhibit "A". WIFE is to make good faith efforts to refinance the outstanding mortgage on the marital residence into her name alone so that HUSBAND will not bear any financial responsibility for the marital residence. WIFE shall have one (1) year from the date of final execution of this Agreement within which to refinance the outstanding mortgage obligation in her name alone. However, it is understood that WIFE has previously made an effort to have the house refinanced in her name alone and she will continue to make a good faith effort to the have the refinancing done as soon as possible. In the event that WIFE is unable to accomplish the refinancing of th~ marital residence mortgage obligation in her name alone it is hereby agreed that after the expiration of one year from the date of final execution of this Agreement, the marital residence will be sold. Should this occur WIFE will 5 . ... , receive all the net proceeds from the sale of the marital residGnce. 7. FAMILV BUSINESS HUSBAND and WIFE have operated a family businoss which is incorporated and is titled "Fitzpatrick Cleaning, Inc.", pursuant to the terms of this Agreement WIFE will surrender and transfer all her shares in the corporation known as "Fitzpatrick Cleaning, Inc.", to HUSBAND so that HUSBAND will be the sole owner of the family business and corporation. HUSBAND hereby agrees to hold WIFE harmless and to indemnify WIFE on any claims made against Fit1.patrick Cleaning, Inc. for past or future claims. It is agreed however that WIFE will continue as a full-time employee of Fitzpatrick Cleaning, Inc. and will receive a monthly grosS salary in the amount of $1,800.00, pluS medical coverage. WIFE'S employment with Fitzpatrick Cleaning, Inc. and the medical coverage, will continue until December 31, 1999, or until the completion of college courses which WIFE is currently taking for the purpose of obtaining a teaching certification, whichever first occurs. If, at the end of this time period WIFE has not secured employment then WIFE will have the option to extend the Agreement with regard to her full-time employment and medical coverage for an additional six (6) months. Although this Agreement states that WIFE will continue to work as a full-time employee of Fitzpatrick Cleaning, Inc., "full-time employee" is defined such that WIFE will work a regularly schedule 6 . .., work week which will consist of a minimum of ten (10) hours work per week and a maximum of twelve (12) hours work per week. WIFE will work Monday and Wednesday of each week from 4:00 p.m. to 8:00 p.m., and will work every other Friday from 4:00 p.m. to 8:00 p.m. WIFE understands and agrees that there will be occasions when she may be called upon to fill in for an absent employee or other emergency. she agrees that in good faith she will fill in to work when called upon unless she has a previous committment. HUSBAND agrees that he will exercise good faith in requesting WIFE to work additional hours and will only do so if a genuine need has arisen. It is understood between the parties that in the past two (2) years the WIFE has worked a schedule similar to the one set forth in this Agreement and has been called upon to fill in on occasion. However, past experience for the past two years has been that WIFE has still only averaged between ten (10) and twelve (12) hours work per week. It is the understanding of both parties that even with WIFE being called in on an occasion to work in an unscheduled time period her work will still average between ten and twelve hours per week. If HUSBAND sells the family business prior to December 31, 1999, he agrees to continue making the payments set forth herein as though WIFE were still working for the business. HUSBAND will have the option to either reduce the balance of monies owed to WIFE under this employment agreement to present value and paying her a lump sum, or he may continue to make payments as set forth in this 7 " ., Agreement. B. fENSION AND EMPLOYMENT BENEFITS Neither of the parties is the owner of any pension and/or employment benefits not specifically mentioned in this Agreement. Each party waives its right, claim or interest in any pension or employment benefit which the other may have. 9. ~LIMON'il Both parties acknowledge and agree that the provisions of this Agreement providing for equitable distribution of marital property are fair, adequate and satisfactory to them and are accepted by them in lieu of and in full and final settlement and satisfaction of any claims or demands that either may noW or hereafter have against the other for support, maintenance or alimony. HUSBAND and WIFE further, voluntarilY and intelligently, waive and relinquish any right to seek from the other any payment for support or alimony. Each party shall indemnifY, defend and hold the other harmlesS against any future action of either support or alimony brought by or on behalf of the other, such indemnity to include the actual counsel fees of the defendant in any such future action. 10. ~USTODY AND CHILD SUPPORT HUSBAND and WIFE will continue to reside in close geographical proximity to one another and they each desire to retain all rights of custody with regard to both children. It is agreed that the children will primarilY reside with WIFE since WIFE will continue to live in the marital residence which has been the home for the B t , . &, children in the past. HUSBAND will continue to have liberal rights with regard to visitation since the parties have been able to amicably work out custody issues without the need for a court order in the past the parties will continue to resolve visitation issues in like fashion. HUSBAND will pay child support to WIFE in the amount of $100.00 per month until Matthew graduates from high school. When Matthew graduates from high school it is agreed that the parties will evaluate the amount of support HUSBAND is paying with a purpose toward reducing that monthly amount and continuing the lower amount of support until such time as Joshua graduates from high school. 11. MUTUAL RESPONSIBILITIES HUSBAND hereby agrees that to the best of his ability he will continue to work with Fitzpatrick Cleaning, Inc., and maintain the financial stability of the corporation so long as the maintenance is within his control so as to ensure that he will meet the financial and employment obligations provided to WIFE under the terms of this Agreement. WIFE hereby agrees that to the best of her ability she will fulfill her responsibilities as a full-time employee of Fitzpatrick cleaning, Inc., for the purpose of helping to maintain the financial stability of the corporation. 12. RELEASE subject to the provisions of this Agreement, each party has 9 ~ released and discharged, and by this Agreement does for himself or herself, and his or her heirs, legal representatives, executors, administrators and assigns, release, indemnify (including actual legal fees) and discharge the other of and from all causes of action, claims, rights, or demands, whatsoever in law or equity, inclUding equitable distribution, spousa 1 support, alimony, counsel fees, alimony pendente lite against the other ever had, and expenses which of the parties , now has, or may have in the future under the pennsylvania Divorce Code, as amended, or under any other statutory or common law, except as set forth below in this paragraph, all causes of action for divorce, and all causes of action for breach of any provisions of this Agreement, inclUding proceedings to enforce this Agreement pursuant to the provisions of the Divorce Code. Each party also waives his or her right to request marital counseling, pursuant to the Divorce Code. 13, WAIVERS OF CLAIMS AGAINST ESTATES Except as herein otherwise provided, each party may dispose of his or her own property in any way, and each party hereby waives and relinquishes any and all rights he or she may now have or hereafter acquire under the present or future laws of any juriSdiction, to share in the property or estate of the other as a result of the marital relationship, inclUding without limitation, dower, curtesy, statutory allowance, widow's allowance, right to take against the Will of the other, and right to act as administrator or executor of the other's estate, and any right 10 . " . , existing now or in the future under the pennsylvania Divorce code, as amended from time to time, and each will, at the request of the o~her, 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. 14. RIGHTS ON EXECUTION Immediately upon the execution of this Agreement, the rights of each party against the other, despite their continuing marital status, shall terminate and be as if they were never married. 15. ~EGAL FEES If either party to this Agreement resorts to a lawsuit or other legal action to enforce the provisions of this Agreement, the successful party shall be entitled to recover his or her reasonable counsel fees, actually incurred, from the other as a part of the judgment entered in such legal action, whether in law, in equity or pursuant to the provisions of the Divorce code, as the same shall be determined by the court. 16. INCORPORATION IN FINAL DIVORCE The terms of this Agreement shall be incorporated but shall not merge in a final divorce decree between the parties. This Agreement shall survive in its entirety, resolving the spousal support, alimony, equitable distribution and other interests and rights of the parties under and pursuant to the Divorce Code of the commonwealth of Pennsylvania, and no court asked to enforce or 11 . . interpret this Agreement shall in any way change the terms of this Agreement. This Agreement may be enforced independently of any child support order, divorce decree or jUdgment and its terms shall take precedence over same, remaining the primary obligation of each party. Except as her~in otherwise agreed, this Agreement shall remain in full force and effect regardless of any change in the marital status of the parties. It is warranted, covenanted and represented by HUSBAND and WIFE, each to the other, that this Agreement is lawful and enforceable, and this warranty, covenant and representation is made for the specific purpose of inducing the parties to execute the Agreement. 17. ADDITIONAL INSTRUMENTS Each of the parties shall from time to time, at the request of the other, execute, acknowledge and deliver to the other party, any and all further instruments that may be reasonably required to give full force and effect to the provisions of this Agreement. 18. ENTIRE AGREEMENT This Agreement contains the entire understanding of the parties and there are no other representations, warranties, covenants or. undertakings other than those expressly set forth herein. HUSBAND and WIFE acknowledge and agree that the provisions of this Agreement with respect to the distribution and division of marital and separate property are fair, equitable and satisfactory to them, based on the length of their marriage and other relevant factors which have been taken into consideration by the parties. 12 . '. I . 'I , Both parties hereby accept the provisions of this Agreement with re.peot to the division of property in lieu of and in full and final settlement and satisfaction of all claims and demands that they may noW have or hereafter have against the other for equitable distribution of their property by any court of competent jurisdiction. HUSBAND and WIFE each voluntarily and intelligently waive and relinquish any right to seek a court ordered determination and distribution of marital property, but nothing herein contained shall constitute a waiver by either party of any rights to seek the relief of any court for the purpose of enforcing the provisions of this Agreement. 19. MODIFICATION AND WAIVER A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. 13 \ . .. f , . ., , 20. VOLUNTARY EXECUTION Each party acknowledges that the Agreement is fair and equitable, that it is being entered into voluntarily, with full knowledge of the assets of both parties, and that it is not the re.ult of any duress or undue influence. The parties acknowledge that they have been furnished with all information relating to the financial affair. of the other which has been requested by each of them. 21. DESCRIPTIVE HEADINGS The descriptive headings used herein are for convenience only. 14 . . . . t . They shall have no effect whatsoever in determining the rights or obligations of the parties. 22. CONTROLLING LAW This Agreement shall be construed in accordance with the laws of the commonwealth of pennsylvania. IN WITNESS WHEREOF, the parties hereto have set their hands -}ift \ and seals this / day of t. ll,.1'.L ' 1996. This Agreement is executed in duplicate, and in counterparts, and HUSBAND and WIFE, as parties hereto, acknowledge the receipt of a duly executed copy hereof. WITNESS: '. (S'9f;!/IIc,,) 't) .~1,.(.i/ (SEAL) - ("~4;( FI ~ ~. " . ~ .0 .... C t': ,-0' .. :.';)~ ~Q ..3 '-': ( ." ,~ ~~! u... '~ ";'.3 , . <"') '0 ,-,': _I. I 1 ~,. lL~i J e:' ' ..,.,. " ,iJ f'.: -.' ..,iu.. .. ". .0 ;5 Q a. U . . . .' CHARLES W. FITZPi\TRICK, . IN THE COURT OF COMMON PLEAS OF . : CUMBERLAND COUNTY, PENNSYLVANIA plaintiff . . . . va. . NO. 95-6565 CIVIL TERM . DOROTHY J. FITZPATRICK, : Defendant . IN DIVORCE . l'auCIlIB TO 'fUlI.I'f DCORD To the Prothonotary: ... Tranamit the record, together with the following information, to the court for entry of a divorce decree: 1. Ground for divorce: irretrievable breakdown under section 330l(C) ~~Wj of the Divorce Code. a.ction. ) 2. Date and manner of service of the complaint: 11/16/95 U.S. First Class Mail, Certified, Return Receipt requested (strike out inapplicable 3. Complete either paragraph (a) or (b). (a) Date of execution of the affidavit of consent required by Section 3301(c) of the Divorce Code: by plaintiff: June 10, 1996 by defendant: June 19, 1996 (b) (1) Date of execution of the plaintiff'S affidavit required by section 330l(d) of the Divorce Code: . , (2) Date of execution of the plaintiff'S affidavit upon the defendant: 4. Related claims pending: Agreement (dated 6/7/96) 5. Date and manner cf service of the notice of intention to file praecipe to transmit record, a copy of which is attached, if the decree is to be entered under section 3301(d) (1) (i) of the Divorce Code. ~ k ~h,;~Y ~~tIl- Attorney for (Plaintiff) (~~h&&ht) Incorporate Marriage Settlement -~ t;,_ >- '" '- ~ C I.. .' .. _i~ ~5! .:J l-- -- -~ ~~' a:: ' ':;;: :;4 " <") ,~ c. ILl- I ,.:" '" (ft') -' .':'(0 .., 1"; =; .;.!u: 'I- ~~.. 'D d 0 0, .. , '. CHARLES w. FITZPATRICK plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 95- CIVIL TERM DOROTHY J. FITZPATRICK, Defendant : IN DIVORCE COllI/LaX1ft' XII DxvoaCI 1. The plaintiff i. Charle. W. Fitzpatrick, an adult individual who currently re.ide. at 53 W. Main street, Apt. 6, Meohanic.burg, cumberland county, penn.ylvania 17055. 2. The Defendant is Dorothy J. Fitzpatrick, an adult individual who currently reBide. at 499 Linden street, Mechanic.burg, cu.berland county, pennsylvania 17055. 3. The plaintiff and Defendant have both been bona fide ra.ident. in the co..onwealth of penn.ylvania for a period of aore than .ix aonth. i..ediately preceding the filing of thia Complaint. 4. The partie. were married on January 12, 1974 in Marlton, lIew Jar.ey. !S. lIeither plaintiff nor Defendant is in the military or naval .ervice of the united states or its allies within the proviaion. of the Soldiers and Sailors civil Relief Act of the congre.. of 1940 and its amendments. 6. There has been no prior action for divorce or annulment in.tituted by either of the parties in this or any other juri.diction. '. 7. The plaintiff has been advised that counseling i. available and that plaintiff may have the right to request that the court require the parties to participate in counseling. COUll'f I 8. paragraphs one through .even of this complaint are incorporated herein by reference thereto. 9. The marriage of the parties is irretrievably broken. WHEREFORE, plaintiff respectfully requests the Court to enter a Decree of Divorce pursuant to 13301 of the Divorce Code. COUll'f II 10. paragraphs one through nine of this complaint are incorporated herein by reference thereto. 11. plaintiff requests the Court to equitably divide, di.tribute or assign the marital property between the partie. without regard to marital misconduct in such proportion as the court dee.. just after consideration of all relevant factors. WHEREFORE, plaintiff respectfully requests the court to enter an Order of Equitable Distribution of marital property pursuant to 13502(a) of the Divorce Code. Date: II II(Y ()~:, Respectfully submitted, ~/ k. ___ R. Mark~:~ 54 E. Main street Mechanicsburg, PA 17055 (717)697-4650 I.D.. 41301 2 . .... VERIFICATION I verify that the statements made in the foregoing document are t~e and correct. I understand that false .tatementa herein are made aubject to the penalties of 18 Pa. C.S. 14904, relating to unaworn falaification to authorities. . tt~ Date: ~o./, 9.1 1?9r' " .1~ 1;~. .n (:: c:: ". . .. ':5~ ,;z )~ ::c 'J a.. i~l ("') ~~ , ~ ~ , ;~n .... -.. ~ .0 a r:I'> ... . , - .J ~it,,,,,.,.\-r'.~,.,,, ~~ I' \0 1; c:: .. i3~ ..::i . ~ 0- ~I ~ M I ;.~ ~. ~ Uj m t!5 1.0 ~ 0'\ U . , -. .-. ,.,-. ~,.,-.... . - .. - ." CHARLES W. FITZPATRICK, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-6565 CIVIL TERM DOROTHY J. FITZPATRICK, Defendant IN DIVORCE WAlna O. ~Iel O. IlrfllrfIOII TO UgUIIT Inay O. A DIVOacl DleUI UIID" . 3301(0) O. 'I'll DIvoael CODI 1. I consent to the entry of a final decree of divorce without notice. 2. I understand that I may lose rights concerning alimony, . , .. expenses if I do not claim . .diviaion of property, lawyer's fees or , "'the. before a divorce is granted. , 3. I understand that I will not be divorced until a divorce decree i. entered by the Court and that a copy of the decree will be aent to .e immediately after it is filed with the prothonotary. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made aubject to the penalties of 18 Pa.C.S. 1 4904 relating to unsworn falaification to authorities. Date: 6;rq~ ~~ // 1 / Q..~/ c" ~ZPAT~ ~I' .' ~ <D ,- C ,. r .. .j ..::r )~ ,. :c J.;e (-, ~ Ll- ,,~ C n: M ".~ , :;~~ L" _I F :::> ;~ ) ~ ~ 15 <D en U - , ...... I' . - '" ~~ ~ \D -- c: r-- -,..i I~ .. ~::~~ .:t :r: (.J g a.. ~5i M , '. ~ -' '~fe ~ '5 "'- ~ \D :;;, a' U .. ~ Ii' "';.- _~~~~:,~',-,"u"'_-- .-. .--:-".-......"'--'"'......'.'ii'~~_...,!.~~........... " ~.._~.~-""'_.....;~H'''"-~ '4.".;.."""'...~.... . . I . I .. . ../ .. CHARLES W. FITZPATRICK, Plaintiff v. . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-6565 CIVIL TERM DOROTHY J. FITZPATRICK, Defendant IN DIVORCE U.IDAVI'l' O. 81RVIel I, R. MARK TtlOMAS, ESQUIRE, being duly sworn according to law, depose and say that on November 16, 1995, I mailed by certified .ail, restricted delivery, a true copy of the Divorce complaint filed by CHARLES W. FITZPATRICK to the defendant, DOROTHY J. FITZPATRICK. A receipt was returned to me which indicates that the Complaint was received by DOROTHY J. FITZPATRICK on November 17, 199!S. Said receipt is attached hereto. ~~ R. Mark Thomas, Esquire Attorney for Plaintiff 54 E. Main Street Mechanicsburg, PA 17055 (717)697-4650 I.D.. 41301 Sworn to and subscribed before .e this -3.\ (,~ day of C{ \,,__~., ~ ' 1996. ",) \.I.lt ~" . '~71/l~L l C Notary Public ~ Notarial SUI ~' Helkn. Notary PublIc 1lonI, Cumblrtand County My Comm explrn Dee, e, 1999 . . , , . ..; '"" "'1 . ~ " ',; I.... """ . ..... ... =r~'~'~'~~.~rf \. t, OM.t.-. ..,....\:"; , .'. J, O,~~I;~J.~..~~r::: I : 'J, __ tit .fi .,.; ';~1:;i,;;~.:~\r~14 ., .~.~'ql"".: .~\.;, '4."'"'''-'11,;" .. _..... ..", ,.. ,..,v_ .... r,;}~;?~~~;t'~:: (, <..,1 ,.. _co, ',"'"" c..,.,,_,;-"'5-;:~~ ,--.------.---- .. .:..--.--'~,' IXIHIBIT "A" ~.' " ..' Ul '- .... c... tc; c:: '.. !~ .. :~l~ ..;/ J=;: t:-l .-- ):'!: -I ~-J_ :l~ r- :G f ~ ..) "- I 1.;:0 [1:1' : , "HI.1 .. ~:.1 u.. r~: -, , :s u_ H, 0 '" U J ) ~ ( - " .. . - ., . . , , ' JUN 0 4 19~( CHARLES W. FITZPATRICK, . III THE COURT 01" COMMON PLEAS 01" Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA . e,ll: I v. . NO. 'i~' " 5' '-S . DOROTHY J. FITZPATRICK, . CIVIL ACTION Defendant . IN CUSTODY ORDBR 01" COUR'l' You, Court to children. DOROTHY J. FITZPATRICK, Defendant, have been lIued in obtain custody, partial custody or villitation of the Matthew Levi Fitzpatrick and Joshua Lucall Fitzpatrick. in person at 102 s: lit! {!'f'p.J , - , on ,L.J "-I \ .. , a conciliation or mediation conference. a pre-trial conference. a hearing before the Court. If you fail to appear as provided by this Order, an Order for Custody, Partial Custody or Visitation may be entered against you or the Court may issue a warrant for your arrest. YOU SHOULD TUE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD OIlE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Lawyer Referral Service Court Adminilltrator Cumberland County Courthoulle Carlillle, PA 17013 (717) 240-6200 FOR THE COURT. By. ff$ / ~ ~ ("~r) Custody Concili 0 Date of Order. (OJ <nl3J .1> '.' ,.-~ . ,,: ;:';. ., "I.." 'J ''" , , '.,c', ~,:,.r<. I: I I ",1, '\: " ~. , ~ ., ., "1> , Jl i P ;i "p- .. .>> '10 , , " ... '~ CHARLES W. FITZPATRICK, I IN THE COURT OF COMMON PLEAS OF plaintiff I CUMBERLAND COUNTY, PEIINSYLVANIA I 'I. I NO. 9(;, , G 5' G\ C,.I,'! I DOROTHY J. FITZPATRICK, I CIVIL ACTION Defendant I IN CUSTODY COIIPLAIIIT FOR CUSTODY AIID IIOW, comes Charles W. Fitzpatrick, by his attorney, David T. Kluz, and respectfully represents as follows I 1. The plaintiff, Charles W. Fitzpatrick, is an adult individual, presently residinq at 7 Donald Street, Mechanicsburg, Cumberland County, pennsylvania 17055. 2. The Defendant, Dorothy J. Fitzpatrick, is an adult individual, presently residing at 499 Linden Street, Mechanicsburq, Cumberland County, Pennsylvania 17055. 3. plaintiff seeks custody of the following childrenl ... pre..nt ...idence A5Dl 0.0.8. Matthew Fitzpatrick 499 Linden Street 16 yrs. 6-2-81 Mechanicsburg, PA 17055 Joshua Fitzpatrick 499 Linden Street 13 yrs. 11-28-83 Mechanicsburq, PA 17055 The aforementioned minor children were not born out of wedlock. The aforementioned children are presently in the physical custody of Dorothy J. Fitzpatrick, Defendant. During the paat five years, the children have resided with the following persons and at the following addresses I lWII ADDRBSS 499 Linden Street' Mechanicsburg, PA 17055 499 Linden Street Mechanicsburg, PA 17055 DARS Charl.. Fitzpatrick Dorothy Fitzpatrick Dorothy Fitzpatrick 1992 - 1994 1994 - present The mother of the children is Dorothy J. Fitzpatrick residing at 499 Linden Street, Mechanicsburg, Pennsylvania. She is divorced from Plaintiff. The father of the children is Charles W. Fitzpatrick residing Cumberland County, at 7 Donald Street, Mechanicsburg, Cumberland County, Pennsylvania. He is divorced from Defendant. 4. The relationship of the Plaintiff to the children is that of natural father. The Plaintiff currently resides alone. 5. The relationship of the Defendant to the children is that of natural mother. The Defendant currently resides alone. 6. The Plaintiff has not participated as a party or witness, or in any other capacity, in other litigation concerning the custody of the children in this or any other Court. Plaintiff has no information of a custody proceeding concerning the children pending in a Court of this Commonwealth. Plaintiff does not know of a person not a party to the proceedings who has physical custody of the children or claims to have custody or visitation rights with respect to the children. CHARLES W, FITZPATRICK, Plaintiff/Respondent VS DOROTHY J, FITZPATRICK, Defendant/Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 95-6565 CIVIL TERM IN DIVORCE t N R E : P EIlIlOlLIJL.EHfJl.RtL.S.EIlLEMENI OIillERJlL.c.nllRT AND NOW, October 27. 1997, 9:55 a,m.. the matter having been called far hearing. and counsel having agreed that the issue is a matter of law. and having further agreed that the amount of $866,00 in attorney's fees was reasonable, the court does order that the plaintiff shall pay to the defendant the amount of $866,00 in attorney's fees for the enforcement proceeding held on June 30. 1997, And further, we refuse to award anymore counsel fees for the filing of the subsequent petition asking for counsel fees, By the Court, David T, Kluz. Esquire 212 Lacust Street, Suite 404 Harrisburg. Pa, 17101 For the Plaintiff/Respondent Thomas D. Gould. Esquire 2 East Main Street Shiremanstown. Pa, 17011 For the Defendant/Petitioner - c...~~ ~ ' /0/'31/97 " A'-J'. . I Il- I __.)_,I.,j :..J >.J . :mtf @ NaV a 0 1991 CHARLES W. FITZPATRICK, Plaintiff ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 95-6565 CIVIL TERM CUSTODY /VISITATION DOROTHY J. FITZPATRICK, Defendant ORDER OF COURT AND NOW this lllL.. day of ~I*, ~. , 1997, the custody conciliation conference originally held on November 13, 1997, has been rescheduled so that the parties can pursue mediation, The conciliation conference shall be held on Thursday, January 8, 1998, at 2:00 p,m. FOR THE COURT, ~ Jf;;/ "7 .(d.4~tl JC()~ MICHAEL L. BANGS l' Custody Conciliator cc: David T, Kluz, Esquire Thomas D. Gould, Esquire ~_." - ii: C") ?;. ,.t c .,. \-:. ~ .::1.;~ '8Q t~J.l; L) :>:: ~-.J8: \fr- o.. .',.;:-. ~{ :~~~ " Li". ('oJ 0:::1\\ ;:.. ;prlJ U..-\ (:.1 _.}u.. .F ;r: 5 t5 f; (,) .', ..-., . ,j I .' . . ".';.', .'_. "'''~."._"., '~"'- .. .,. . '. . . r . '. . ~ .f lAW OFFICE OF THOMAS D, GOULD ATTORNEYS AT LAW 2 EAST MAIN STREET' SHIREMANSTOWN, PA 17011 717-731-1461 . .. , eJ JAN 1 6 1998 -'. ~'-'.'-''''''''''''''''''''''~ . .,."". .,. -...._- "---..-.....,.....".,.... " ';'''''';'.;\'!;ii..'''L~;l , .. . . . C~8 .. .ITZ'ATRICK, ,LADftIn/USJilOlfDaI'r IN TI& COURT O. COli,. 'LDS CUNBIJU.aHD CQUH'rY, nIlIISYLVUIA v. 110. 9!S-6!S65 CIVIL '1'UN DOlU)'fBY J. I'ITZ>>ADICK, D....IDU'f/HTITIOIIU CIVIL ACTIOII III DIVORCS AND NOW this OIlDD 01' COURT L~ "'" d.y of "no"Y' 1998, opon ,"view of petitioner/Defendant's Petition For Enforcement of Marital Settlement Agreement, a Rule to Show Cause is issued upon Respondent/Plaintiff to within ~ dayS~~ file a response " SlAW U:...c., to Defendant's petition BY THE COURT €) " 4 ~ rl[QC,TiCr: 0= If' :' ":"''''':OTl.fW 9il ,J.~~! I G fil 2: :ill CU". .."" TY . Nlt,.~;-".. . ;... '~'...;J,'~ FEi'!\SVL\';~;~V\ q.: ~i .... " ',) ~ " '. I . . , CIAPT~S .. rITZiATaICK, iLADlTIl'I'/DSl'ONDDT III TO COURT or CCllICM iLDS ctJMURLAlfD COUIITY, HlOtSYLVNlIA Y. NO. 1I!S-6!S65 CIVIL TUN DOaoTBY J. .ITZiATRICK, D.rIMD~/i.TITIOHIR CIVIL ACTION III DIVORCE iETITION TO ZNJ'01l~ OF HU.ITAL S.TTLDSN'f AOJIwwwmIT AND NOW comes the Petitioner, Dorothy J. Fitzpatrick, by and through her attorney, Thomas D. Gould, and files this petition seeking reimbursement for her lost pay and of her attorney fees and costs based on the following facts. 1. The Petitioner is Dorothy J. Fitzpatrick who resides at 499 Linden Street, Mechanicsburg, PA 17055. 2. The Respondent is Charles W. Fitzpatrick who resides at 7 Donald Street, Mechanicsburg, PA 17055. 3. The Petitioner and Respondent were married on January 12, 1974. 4. A Complaint in Divorce was filed by Respondent on November 16, 1995. . . 5. The Divorce Decree was issued on July 9, 1996. 6. A Marital Settlement Agreement (MSA) was executed by the parties on June 7, 1996. 7. The MSA was incorporated into the Decree In Divorce. 8. On March 10, 1997 Ms, Fitzpatrick filed a Petition For Enforcement Of Marital Settlement Agreement. 9. On June 30, 1997 a hearing was held on Ms. Fitzpatrick's petition. 10. After a full evi.dentiary hearing Judge Hoffer ordered Mr. Fitzpatrick to reinstate Ms. Fitzpatrick's employment and to abide by the terms of the MSA dated June 7, 1996. Copy attached as exhibit A. 11. The MSA, in paragraph 7 provides "..that Wife ... will receive a monthly gross salary of $1,800.00,... until December 31, 1999." 12. Paragraph 7 of the MSA provides that even if Husband sells the business Wife will continue to receive the $1,800.00. 13. The MSA provides that Wife is to work an average of 10-12 hours per week for Fitzpatrick Cleaning, Inc. 14. Ms. Fitzpatrick normally works every Monday and Wednesday and every other Friday from 4:00 p.m. to 8:00 p.m. 15. Ms. Fitzpatrick has always been paid her regular $1,800.00 monthly amount even if she was not required to work due to a holiday falling on one of her scheduled work days. See pay stub for the period covering Labor Day attached as exhibit B. . . . 16. Ms. Fitzpatrick worked the Wednesday evening before Thanksgiving, November 26, 1997. 17. The office she cleans was closed on Thursday and Friday for the holiday. 18. Ms. Fitzpatrick would normally have been scheduled to work on the Friday following Thanksgiving. 19. Ms. Fitzpatrick, pursuant to her past work practices, did not go in to work on Friday, November 28, 1997. 20. In Ms. Fitzpatrick's check dated 12/15/97, for the pay period 11/24/97 to 12/05/97, Mr. Fitzpatrick deducted $180.00, 4 hours at the rate of $45.00 per hour, for Ms. Fitzpatrick's failure to work on November 28, 1997. See memo attached as exhibit C and the pay stub attached as exhibit D. 21. This court noted at its June 30, 1997 hearing that Mr. Fitzpatrick would be required to pay Ms, Fitzpatrick her full salary even if she became sick or needed a day off from work. 22. The $1,800.00 payment is a form of alimony and equitable distribution to be paid by Mr. Fitzpatrick to Ms. Fitzpatrick and is not contingent upon her work hours with Fitzpatrick Cleaning, Inc. 23. In a letter dated December 16, 1997 Ms. Fitzpatrick's attorney provided an explanation as to why Ms. Fitzpatrick did not work on Friday November 28, 1997 and requested that Mr. Fitzpatrick immediately reimburse Ms. Fitzpatrick $180.00. A copy of the letter is attached as exhibit E. . , . 24. In a letter dated December 17, 1997, Mr. Fitzpatrick's attorney indicated that Mr. Fitzpatrick would not reimburse Ms. Fitzpatrick $180.00. Copy of letter attached as exhibit F. 25. Mr. Fitzpatrick breached the terms and conditions of the MSA when he failed to pay Ms. Fitzpatrick her full payment of $900.00 in her December 15, 1997 check. 26. Paragraph 15 of the MSA states "If either party to this Agreement resorts to a law suit or other legal action to enforce the provisions ryf this Agreement, the successful party shall be entitled to recover his or her reasonable counsel fees, actually incurred....(Emphasis added). 27. Petitioner is incurring actual counsel fees to enforce the provisions of the MSA. A summary of the counsel fees incurred will be provided at the time of the hearing. 28. In a court Order dated October 27, 1997, Mr. Fitzpatrick was ordered to pay Ms. Fitzpatrick's attorney fees in the amount of $866.00 for his previous violation of the MSA. A copy of the order is attached as exhibit G. 29. Mr. Fitzpatrick did not appeal that court decision. 30. To date Mr. Fitzpatrick has only paid $400.00 of the $866.00 award. 31. Mr. Fitzpatrick has provided no explanation as to why he has failed to promptly pay the court ordered attorney fees. . . , . .' ..... '~l.~ J,~;: r:E\:~':E .. ' . .. ~ ." .- . . '''; ":- .... -r ~ &'-~~~.~~~~~~.=~~~~~~~ RJrE HCUU 4.WOlJ.1/T ."n F'::.O .11':0 ~!'.l::)'''! ..... 'ITZ'ATRICK CLEANING.INC 7 OlIHALD STREIT IlIC1WIICSlIIlG.'A 17D!5 U'ULA~ 900,00 c!D:,:~;:=;a D":~;;'" "r~ ~OTHY J 'ITZ'ATRICK _H LIHllIll ST /llfClWlICSllllO'A 1701S IU us.q.ml D'" 000100 '" 0002 ,ldMl'i'fJ ITA 'UI OI/25/(t.Wgn, 'A S OJ CH'fft&!17 CHICIt "" U7 I r~r1bl1W "rDleARr nDr~AL 'A I/SHU a" ~iiiB 13.05 68,75 25.20 9.00 li~~U~ 23C.90 1219.31 .!J.60 162,00 10,00 .0028 I'" 0011 000100 I.."" 'Ar 728,20 13D9~ .121 .... .,......,.......... . .............. ...........,........ ............. ............ .."'...........~................. .......~...-... ......-.........-...-................ UOH' t ~\).a~! : 2l\ l ":1M!?. , 1425 PI' T) THE OROEQ QF OOROTHY J FITZPATRICK 499 LINOEN ST MECHANICSeURG PA 17055 voro ~,~!\ 60 OAYS $ ........595.81.. ~ . ...........................................FIVE HUNCRED NINETV.F[VE ANO at/100..OOLLARS OAFCU (try;.' .. j'~h~~...../. ~A':uJ.a,'MrCRIISJ 11"00... 2 Sil" I: 23 BS 2 2.. .': '" 2.S ...qe. 5.011""" ~.1~1~INIl11fY"."" ~...,.. ~'.HTr'~' 'r"t'?~~"'1C 1" '" ~.e., "~l1 " t.~ '~pL. '0 "'I"~ '~"~'1 .....HtJtIl .... ~'"1.''''~''' 2 FOLD ANO ReMOVE FOLD AND REMOVE YOUFlIANKINO rARHINGS HOURS RAT! AMOwa YTDAMOUNT REGU~AA 'ZO,OO TOTAL EAANINGS 720.00 Z14Z0.00 ''''''LOY'If IN'OFlMATlON FlUNG STATUS TAll TVpr AMOUNT YTD AMOUNT FlnFATRICX CLfAHIHG.IHC sac SEC 44,U 1321,0. 7 llOIlAl.O mUT "EOlCAAE 10.<< 310.59 "CIWII~O.FA 17055 S 0: FEOWL 41.75 1524.1. \ S OJ PA ZO.16 5",76 PAY FlRIGO II/Z4/97 TO IZ~5/97 S OZ WSHRS 7.Z0 Z14.20 ~ 02 OPT 10.00 CHlCX DATI IZ/U/91 Ol! , 1425 ""'SONAL IN'OFlMATlON OOROTH! J FllVAl'AICX ." L1I1llEN ST "CIWII~O FA 17055 SS, 155-41-5197 tHPLI OOOZ OEPT' 000100 TOTAL WITHHOLDINGS ADJUSTMrNTS 124.19 AMOUNT 4017.47 YTDAMOUNT . , "..'ltOLLS If NteHIX' . OOZI 8481 0010 000100 NET .~Y \95.al 17332,53 . , . , , ,- LAW OFFICE OF THOMAS D. GOULD ~ THOMAS 0 GOU~O ~IICHAEL S TRAVIS' 2 :~ST MAIN STRE:T SHIRE',lM.STOI'IN.PA 11011 11111731.1461 FAX 161,1914 '.l:\Ur.'!J ~all ~l!~S!'f' BAA Decembe~ 16, 1997 David T, Kluz, Esquire 212 Locust Sereet Suite 404 Harrisburg, PA 17101 Re: Fitzpatrick Dea~ Dave: The harassment o~ Ms, Fitzpatrick must stop i:nmediately, Enclosed is Ms, Fitzpa:~ick's payroll check dated 12/15/97 for the period 11/24/97 to 12/05/97, The check indicates a g~oss pay of 5720,00, Ms, Fitzpatrick is a salaried "employee" at 51,800,00 per month. Mr, Fitzpatrick has been paying he~ 5900,00 on the 1st and the 15th of each month. I am also enclosing a note from FeI dated December 12, 1997 which attempts to explain the "adj us tmen t" to Ms. Fitzpatrick's 12/15/97 paycheck, Mr, Fitzpaerick is not authorized to adjust/deduct any amount from Ms. Fitzpatrick's monthly payment of 51,800.00 without her consene, Ms. Fiezpatrick did not work at PMA on the Friday following Thanksgiving, Novembe~ 28. 1997. PMA was closed on Thursday and Friday for Thanksgiving, Ms. Fitzpaerick has never worked Holidays when PMA is closed, I have enclosed Ms. Fiezpaerick's pay seub for the period covering Labor Day 1997. Ms. Fitzpatrick did not work Labor Day, but was seill paid her full amount as required by the MSA, Ms. Fitzpatrick cleaned PMA on Wednesday night before Thanksgiving, PMA was closed on Thursday and Friday, Ms, Fitzpatrick did the prudene thing, as she has th~oughoue this ordeal, and did noe go in to clean PMA on Friday nighe. Mr. Fitzpatrick's unilateral decision to "adj ust" Ms, Fitzpatrick's check is a new form of harassment, At the eime of the divorce and equitable distribueion of ehe marieal assees, ehe purpose of having Ms. Fitzpatrick coneinue as a salaried "employee" was as a favor to Mr, Fitzpaerick. so as to allow him co use ehe marital distribueion payments as a business deduction, It may be time to reconsider this ar~angement. Mr, Fitzpaerick is clearly haVing difficulty working with Ms, Fitzpatrick under the cu~rene condieions, Ie may be eo both of ou~ clients' inearest to end ehe "employmene" relationship, Ms, Fiezpae~ick ~emains Willing co disc'..lsS a h:mp sum pa,7.lene or an al:a~:!a:i'/e mcnthly paymene in ret'..:.:-~ fo:- an end :: -:;":'3 s::-3.:.::.ed, "dmplcy~e:::" :'e:'=.':.:..c:-.3~1.p. Please re'/.:..e'''' my clie:-.:' 3 ~revious o::ar 'I/i::t you::: .:lienc. Now made be t~e appropriate time :0 resolve this en going problem, ,. " I " . ~~~;1;r". "~~) CHARLES W, FITZPATRICK. Plaintiff/Respondent VS DOROTHY J, FITZPATRICK. Defendant/Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA 95-6565 CIVIL TERM IN DIVORCE IN RE: PETITION TO ENFORCE SETTLEMENT ORDER OF COURT AND NOW. October 27. 1997. 9:55 a,m,. the matter having been called for hearing. and counsel having agreed that the issue is a matter of law. and having further agreed that the amount of $866.00 in attorney's fees was reasonable. the court does order that the plaintiff shall pay to the defendant the amount of $866,00 in attorney's fees for the enforcement proceeding held on June 30. 1997. And further. we refuse to award anymore counsel fees for the filing of the subsequent petition asking for counsel fees. By the Court. David T, Kluz. Esquire 212 Locust Street. suite 404 Harrisburg. Pa, 17101 For the Plaintiff/Respondent Thomas D, Gould. ESqUire~ 2 East Main Street Shiremanstown. Pa, 17011 For the Defendant/Petitioner :mtr ~ al rs "" '".: le' e:, ,. ~lJQ ", ..- 1 .?(, :i: '..... f~'1 .;.0;: ~!; :1 I:. -1' :",..1 .itl. :;. rji fr: l.~ ; ,. r' ~ -, , 1.1. n :.i u <:/1 U .. . " VBRIPICA'l'IOII I, '"81..111'''8 If. PI'l'IPA'l'RICI:, verify that the .tatement. _de in the foregoing document are true and correct to the best of my knowledge. I understand that flllse statements herein are II\Ilde subject to the penaltie. of 18 Pa. C.S. S 4904, relating to un.worn falsification to authorities. Date. IO~1 ~-~~ ar e W it.pat'flc ., " , '~.- > " ,.;. .,-' " ~i ;. ." ,~:-":f'- -.,' '.s a ,., a ". .... l"l ...' .' . ';' 'j! '-;, '" . . . . . . ..'- '! ~A~~~~-:i~~~-~~;i~T~{ ,-,ill:,. . CHARLES W. FITZPATRICK, I IN THE COURT OF COMMON PLEAS OF Plaintiff I CUMBERLAND COUNTY, PENNSYLVANIA I v. I NO. q~. Go;-c:; ..- GI.,; I I DOROTHY J. FITZPATRICK, I CIVIL ACTION Defendant I IN CUSTODY SPICIAL RRt.IIP PURSDAIIT TO 'l'HB PROVISIOIIS OF PR_AYI.vAIIIA ROLl: OF CIVIL PROCBDURB 1915.13 AND IIOW, comes Charles W. Fitzpatrick, by his attorney, David, T. IUuz, who brings before this Honorable Court the following Requeat for Special Relief. In support of the motion the following is alleged I I. Charles W. Fitzpatrick [hereinafter Plaintiff/futher] is an adult resident of Cumberland County, the ex-husband of Dorothy J. Pitzpatrick and the father of Matthew and Joshua Fitzpatrick, having a. his address 7 Donald Street, Mechanicsburg, Pennsylvania. 2. Dorothy J. Fitzpatrick [hereinafter Defendant/mother] is an adult resident of Cumberland County, the ex-wife of Charles W. Pitzpatrick and the mother of Matthew and Joshua Fitzpatrick having as her address 499 Linden Street, MechanicBburg, Pennsylvania. 3. Plaintiff and Defendant were separated and living apart on March 1, 1994, and were divorced by order of court on July 9, 1996. 4. Pollowing the Beparation, Plaintiff/father had extenBive viaitation of his Defendant/mother. sons with the cooperation of the 5. For IIIOre than two years, plaintiff/father has had vi.itation every other weekend from 4100 p.m. Friday until 9100 p... sunday and every Monday and Wednesday evening from 4100 p.m. until 9100 p.m. 6. plaintiff/father waa able to go to the residence of the children to pick them up and was able to communicate with them telephonically. 7. OVer the last six months, Defendant/mother haa been interfering with the plaintiff/father's visitation, culminating with the events causing this Motion for Special Relief. plaintiff/father has been told by Defendant/mother that he is not permitted at her property and that he can not call her and the children'. home. B. On Friday, May 30, 1997, Plaintiff/father was called by Defandant/lIOther and was told that the children would not be vi8iting him as originally planned. When plaintiff/father reque.ted additional information with regard to the reason for non- vi.itation, the Defendant/mother hung up on him. 9. Without explanation, no visitation of his sons nor telephonic communication was permitted. 10. plaintiff/father was advised by his son, Matthew, that Defendant/mother would not permit the sons to have contact with their father. 11. All support payments and medical reimbursements are current. ~ co ~ ..:J I~ M ::;4 (3'" :t: (;i; "'-'. c... ("J~ ". :-.::- U~ s;Q D.. {'..-'" tL' C<:l djm FE w con.. L... -. e: u.. m ::J 0 0'1 U i,' .i~,-: .' ;< :;-;1:" ,.. :;. ).: .,-."."",c't" """"- " -.,', '-'- ':1' p~; ,. i!~ :"'.;' I . '. '.;,,: ,,;";:.. ,~i"~~"-~,, ,- .i ".;. .' .:'~~~.{ .~ U.',J~;~ .,' " I~"':: ~I~' ~~'. -~~'!-'.) .ta I Ii , . , . , , 01, r .' . , < . > " .~. . .' ..: i'~l~f, " '," >9:;~i,i ., I"'" r .. I "" .~ ':.':. :-1:>' ~Lf,~:i ,,' ' . if 'tTt~~ 11'\\ , 1'''''F.'' . : 'I ~,.:,,~~:: 't: ': ;;,_<:{f~ ,_ ' ,>', .,,\'.';-~F.--' OJ ~ ,I , . ~. ~_ . > ,;:, >r:t"'j~ '.: ,/r:.:',J;:i~;J;~~~ ':0: '( J' 44. Admitted that Mr. Fitzpatrick, through FCI, is obligated to pay Ms. Fitzpatrick $1,800.00 per month. Admitted that the MSA does not specify when or. how the $1,800.00 is to be paid. By way of further answer, Ms. Fitzpatrick was to receive her $1,800.00 as an "employee" of FeI. All employees of Fr.I, before the MSA and continuing thereafter, received their pay twice monthly, on the 1st and the 15th of each month. Mr. Fitzpatrick and Ms. Fitzpatrick, as employees of FCI have at all times relevant to this matter, received their payroll checks on the 1st and 15th of each month. 44. Denied that Mr. Fitzpatrick, through FCI, has made all payments under the MSA in a timely fashion and no amounts are currently owed to Ms. Fitzpatrick. Rather, since removing Ms. Fitzpatrick from her normal work place, Mr. Fitzpatrick, through FCI has been late on making payments to Ms. Fitzpatrick. Mr. Fitzpatrick, through FCI, delayed payment to Ms. Fitzpatrick until she, through her attorney, threatened and then filed a Petition to enforce the terms of the MSA. Since filing the Petition, Mr. Fitzpatrick, through FCI, has been late on each and every bi- monthly payment. Other employee's of FeI have been paid in accordance with the prior payment practices. 45. To the best of Ms. Fitzpatrick's knowledge there has been no lapse in health coverage, although Mr. Fitzpatrick, through FCI has changed health coverage without Ms. Fitzpatrick's knowledge or consent. 2 46. Denied that Mr. Fitzpatrick, through FeI has continued to pay Ms. Fitzpatrick in a timely fashion, Admitted that Ms. Fitzpatrick was removed from her previous work site and has not been reassigned. 47. It is admitted that FCI has not been made a party to this Petition. It is admitted that FCI was not a direct party to the MSA. By way of further answer, Mr. Fitzpatrick is and acts on behalf of FC!. 48. Admitted. 49. Denied that Mr. Fitzpatrick, through his control of FCI has not violated the terms of the MSA. 50. Denied that Ms. Fitzpatrick has not alleged any harm of damage caused by Mr. Fitzpatrick in violation of the MSA. Rather, Mr. Fitzpatrick, through FCI, has removed Ms. Fitzpatrick from her work site; has harassed her at her work site resulting in a PFA against Mr. Fitzpatrick and has delayed her bi-monthly "wage" payments. 51. Denied. At the time the Petition was prepared and signed by Ms. Fitzpatrick, Mr. Fitzpatrick, through his actions at FCI had violated the terms of the MSA. By way of further answer, this is the third Petition that Ms. Fitzpatrick has had to file to force Mr. Fitzpatrick, through FCI, to abide by the terms of the MSA. 52. Denied that Ms. Fitzpatrick has failed to state a claim upon which relief may be granted. 3 53. Admitted. By way of further answer the paragraph goes on to state that "this Agreement may be enforced independently of any child support order, divorce decree or judgment and its terms shall take precedence over same, remaining the primary obligation of each party." Therefore it is believed that this court through its legal and equitable powers has the right to void this Agreement if justice demands. 54. Admitted. 55. Admitted. 56. Admitted in part and denied in part. Admitted that Ms. Fitzpatrick, as an alternative, requested that her "employment wages" be paid in a lump sum, subtracting the expense Mr. Fitzpatrick, through FC!, would have to pay a replacement employee. 5? Admitted that the terms of the MSA are not subject to modification, however, the court has the right, duty and obligation to interpret the terms and apply legal and equitable principles to fulfill the intent of the MSA. 58. Denied that Ms. Fitzpatrick has not stated a claim upon which relief may be granted. 59. Denied that Ms. Fitzpatrick filed her petition in bad faith. Denied that Mr. Fitzpatrick, through FC!, was at the time of the Petition, not in breach of the terms of the MSA. Rather he was and is in breach. Denied that Ms. Fitzpatrick seeks relief prohibited by the MSA or the Divorce Code. 4 60. Admitted that a letter was sent by Respondent's counsel to Petitioner's counsel dated February 12, 1999. The statements in the letter speak for themselves and therefore the allegations stated in paragraph 60 are denied unless supported by the information stated in the letter. 61. Admitted that Ms. Fitzpatrick's attorney received the February 12, 1999 letter. Admitted that Ms. Fitzpatrick's attorney .indicated that he would not withdraw the Petition because Mr. Fitzpatrick, through FCI had once again failed to timely pay Ms. Fitzpatrick her "wages" on the 15th of February. In addition, Mr. Fitzpatrick's attorney could not assure Ms. Fitzpatrick's attorney that Mr. Fitzpatrick, through FCI, would continue to pay Ms. Fitzpatrick. 62. After reasonable investigation Ms. Fitzpatrick is without knowledge or information sufficient to form a belief as to the truth of the averment. 63. Denied that this petition was filed in bad faith or that Mr. Fitzpatrick is entitled to attorney fees. WHEREFORE Ms. Fitzpatrick requests that honorable court to grant her petition. Respectfully submitted ~V,). ~ Thomas D. Gould Attorney for Petitioner 1. D. * 36508 2 East Main Street Shiremanstown, PA 17011 5 .. ~ en ?:; .. ,.. r M j~;:~) C) :c '...) ~l~ orr: "- C.)::J '0 .~. 'o- fT. \.0 '. '. .:';. (.l. ...:.. (I, O. o ", itJ ,[!;; ~< : ..L ::0.:: ~'i u. (n 0 en C) ....._---.~..... .. .._, '- '".' CHARLES W, FITZPATRICK, Plaintiff/Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v, : NO. 95-6565 CIVIL TERM DOROTHY 1, FITZPATRICK, DefendantJRespondent : CIVIL ACTION - LAW : IN DIVORCE PL4,INTIFF'S ANSWER TO PETITION FOR ENFORCEMENT AND NOW, this _ day of September, 1997, comes Charles Fitzpatrick by his attorney, David T. K1uz, who brings this answer to Defendant's Petition to [sic] Enforcement, In support of the answer, the fol1owing is al1eged: 1-9, Admitted, 10, Denied, This allegation conlains a fundamental misstatement of fact. The order of court issued by this Honorable Court stales Ihat", , , Charles Fitzpatrick [is] 10 immedialely comply with Paragraph 7 oflhe Marilal Property Settlemenl Agreement, , ,.., 11-17, Admitted, 18, Denied, Plaintiff is nol violatinglhe lerms oflhe Marilal Settlemenl Agreement, NEW 1\" 'TTIi'.R. AFFIRMATIVE DEFENSE 19, In her Pelition Ie :ement liIed on March 10,1997, Respondenl raised II ~ 20, In Respondent .ursemenlofallomey's fees being made available Ihe Marilal Settlemenl Agreement, CERTIFICATE OF SERVICE I, ELLEN M, HOWE, Legal Assistant, certifY that I have served a copy oflhe foregoing document on the individual listed below by depositing the same in the United States Mail, First Clw, postago prepaid, at Hanisburg, PeMsylvania: Thomas D, Gould, Esquire 2 East Main Street Shiremanstown. PA 17011 Date:..9./aICf7 -, .... . I, ; I 1!It.J:*,...q~"""T<...'.""'"""'''''' :~'..'\ '~~~i,~;;~: . ' . . ' .~ '. ,'/,-;:;; .. .... /,:~;t,: :";/: ,. .. -,.' ~ ~ ..,' DMId T. IIuI . DO_CMYPt_TM__..j':;,i , A. rD1W11lY AT LAW EP I '199t::~_llI'1II!~~"~;.;;}' IIILOCU8T--"MIIT1I- ~',' . ,., :.,,,,,;,;:~' . HAIW" NI'G --......._. 'Y'~' '.'0 IV .......................,................._..............~__'.l~.,; f'.._. . ~..... __ , 1 A~' . - \H>,;.:~':-i'l". 11"71-'''';:'''') '. .' ,,' ---...~.~......,,_...--_...-.- " CHARLES W, FITZPATRICK, PlaintilTlPetitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v, : NO, 95-6565 CIVIL TERM DOROTHY 1. FITZPATRICK, DefendantlRespondent : CIVIL ACTION - LAW : IN DIVORCE PLAiNTIFF'S ANSWER TO PETITION FOR ENFORCEMENT AND NOW, this _ day of September, 1997, comes Charles Fitzpatrick by his allomey, David T, KIuz, who brings this answer to Defendant's Petition to [sic] Enforcement, In support of the answer, the following is alleged: 1-9, Admitted. 10, Denied, This allegation contains a fundamental misstatement of fact, The order of court issued by this Honorable Court states that ", , , Charles Fitzpatrick [is] to immediately comply (') .D 0 C' -I -n ,,~: ~~ :.i~ 11-17. Admitted, l';: -<1 "~ IS, Denied, Plaintiff is not violating the tenus of the Marital settlemj~':~$fe'~nt:;~l~ .'", ':.~ .>. '" '..t.] \.:J :r.' ..n z~ .;.1 :q ...... (:> -<.0 with Paragraph 7 of the Marital Property Selllement Agreement, , ,.., NEW MATI'ER.. AFFIRMATIVE DEFENSE 19, In her Petition to Enforce the Marital Property Selllement Agreement Iiled on MlIJ'Ch 10,1997, Respondent raised the issue ofattomey's fees in Paragraph 19, 20, In Respondent's Paragraph 20, she makes mention of reimbursement ofallomey's fees being made available pursuant to the tenns of Paragraph 15 of the Marital Settlement Agreement. ..- ...... ;m, " '. - 0 - - 1'- ~~ - < . /:l.o 52'gj e.li "':l:l~.E " I :c'....J u'~ I ;: ~.~ , Qt:iJl:c I - I I I i I I i I i I I I 15 I H I !:I ~n I sa s ~ ~ , ~ ~ ~ ~ ! . c W III i-o ~ W Z W ~ z i 'C z Iii W ~ ~ I 'p o Iii ci ! ~ a ~ · 0 i ~ III N 1! . ~ N C I , ....~-- - " I I I I I I ! I ! \ \ I I I i I i I ,I I I , I i i I '. . ,~ M .o-~ =g~ 8~o ci '03 ~ g::a ~ o ~ ,_ ~l'l~ - - o .... - - - - , ;. I I I I I I \ I i ;; I \ H I I a w c ;t t: - :> z I s Ul ~ I I ' ~ 1 ... ... > I i-O c ~ f.I) I i > ~ Z I i w Z I i z Ul w I It ~ o ... ' ! c! I: Ul 0 C g ~ ~ Ul N it - It N . <::1 x . , , , , CHARLES W, FITZPATRICK, Plaintiff ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs, NO, 95-6565 CIVIL TERM DOROTHY J, FITZPATRICK, Defendant CUSTODYIVISIT A TION JUDGE PREVIOUSLY ASSIGNED: The Honorable George E. Hoffer, P,J, {:USTODV CONCILIATION CONFERENCE SUMMARV REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8(b), the undersigned Custody Conciliator submits the following report: I. The pertinent information concerning the child(ren) who is(nre) the subject of this litigation is as follows: CURRENTLY IN CUSTODY OF NAME R1RTHDATE Matthew Fitzpatrick Joshua Fitzpatrick June 2,1981 November 28, 1983 Defendant Defendant 2, A Conciliation Conference was held on January 8, 1998, and the following individuals were present: the Plaintiff and his attorney, David T, Kluz, Esquire; the Defendant appenred with her attorney. Thomas D, Gould, Esquire, 3, Items resolved by agreement: See attached Order, 4, Issues yet to be resolved: A final custody schedule, 5, The Plaintiffs position on custody is as follows: See attached Order, 6. The Defendant's position on custody is as follows: See attached Order, . 7, Need for separate counsel to represent child(ren): Neither party requested. 8, Need for independent psycholol!ical evaluation or counselinl!: See attached Order, 9, Other matters or comments: The parties are to continue with mediation and reconvene for another conciliation conference before Michael L, Banl!s, Esquire, on Thursday, April 2, 1998, at 9:00 a,m, 7L Date: January 19, 1998 Michael L. Banl!s Custody Conciliator B, Every Mondey evening and Wednesday evening overnight from 4:00 p,m. until 9:00 a.m, the following Tuesday and Thursday respectively, C. For one uninterrupted week of vacation with the children from 9:00 a,m, on August 6, 1997, until 9:00 p,m, on August 13.1997, 4. During the school yaar, Father shall have the children In accordance with the following schedule: A, On alternating weekends from Friday at 4:00 p.m. until Monday morning at which time he shall drop the children off at school or In the event that they are not In school, he will drop the children off at Mother's house at 9:00 a,m. B. On Monday and Wednesday evenings from 4:00 p.m. until 9:00 p.m, 6. The parties shall alternate the major holidays, those holidays defined as Labor Day. Thanksgiving, Easter, Memorial Day, and Fourth of July. This alternating schedule shall commence with Mother having Labor Day In 1997 and the schedule shall elternate thereafter, These periods of partial custody shall occur from 9:00 a.m, until 9:00 p,m. 6. The parties shall share the Christmas holiday. The Christmas holiday shall be broken Into the following segments, , CHARLES W. FITZPATRICK, Plaintiff ) I ) ) I ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO, 96-6666 CIVIL TERM DOROTHY J. FITZPATRICK, Defendant CIVIL ACTION - LAW CUSTODY JUDGE PREVIOUSLY ASSIGNED: The Honorable George E. Hoffer CUSTODY CONCILIATION CONFERENCE SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915,3-8Ib), the undersigned Custody Conciliator submits the following report: 1. The pertinent Information concerning the childlren) who Islare) the subject of this litigation Is as follows: NAME BIRTHDATE CURRENTLY IN CUSTODY OF Matthew Fitzpatrick Joshua Fitzpatrick June 2, 1981 Novembar 28, 1983 2, A Conciliation Conference was held on July 31, 1997, and the following Individuals were present: the Plaintiff and his attorney, David T. Kluz, Esquire; the Defendant eppeared with her attorney, Thomes D. Gould, Esquire. 3, Items resolved by agreement: See attached Order, 4. Issues yet to be resolved: See ettached Order, 6. The Plaintiff's position on custody Is as follows: Sea attached Order. ALErXlFFlCE OF TII~ m')lH(jI:or.....~y 97 ^1J'l 20 PH I.: 07 eLil,II".;, ". , ('nU"JTY '''U_,."-, '. 'It) J.~ I PENNSYlVAN''1 . CBAPT~S W. rITZPATRICK, , PLaIWTIR/USPOHDIH'r IN Tn COUl\T or COlIIOH PLUS CIJWIl-LNm COOIITY, PDIIISYLVUIA v. NO. ~5-6565 CIVZL TKRN DOROTHY J. rITZPATRICK, D.rIHDAHT/P.TITIOHZR CIVIL ACTION :N DIVORC3 OlmU or COUl\T AND NOW this lL ~y of February, 1999, upon review of Petitioner/Defendant I S Petition For Enforcement of Marital Settlement Agreement, a Rule to Show Cause is issued upon Respond~laintiff..;:O file ,a response to Defendant I s petition (J4 ~~e..A. . within days, Respondent/Plaintiff is directed to continue to pay Petitioner/Defendant $1,800.00 per month and continue her medical coverage as provided for in the Marital Settlement Agreement until further order of court. BY THE COURT . , .. CBAPT~8 W. rITZPATRICK, PLAIWTIn/USPOHDIHT IN Tn COUl\T or COlllctl ~ et--.IMD COOft"'.I,PDOISYLVUIA v. NO. ~5-6565 CIVZL TKRN DOaOTBY J. rITZPATRICK, D.JWMD~/"TITIOHZR CIVZL ACTIOR IN DIVORC3 ,.TITIOH 1'01' DI'OIl.-1NDIT or MARITAL S.TTT,WIGHT .ma_WIGHT AND NOW COMES the Petitioner, Dorothy J. Fitzpatrick, by and through her attorney, Thomas D. Gould, and requests this honorable court to issue an Order directing Respondent, Charles W. Fitzpatrick, to comply with the terms and conditions of the Marital Settlement Agreement (MSA) dated June 7, 1996 , or alternatively to void the employment requirement of the MSA and order the Respondent to pay Petitioner the remaining portion of her equitable interest in the marital business, based on the following: 1. The Petitioner is Dorothy J. Fitzpatrick who resides at 499 Linden Street, Mechanicsburg, PA 17055. 2. The Respondent is Charles W. Fitzpatrick who resides at 7 Donald Street, Mechanicsburg, PA 17055. 3. The Parties were married on January 12, 1974. 4. A Complaint in Divorce was filed by Respondent on November 16, 1995. ~ 5. A Divorce Decree was issued on July 9, 1996. A copy of the Decree is attached as exhibit A. 6. A Marital Settlement Agreement (MSA) was executed by the parties on June 7, 1996. A copy of the fully executed Agreement is attached as exhibit B. 7. The MSA was incorporated into the Decree In Divorce. 8. Pursuant to paragraph 7 of the MSA Petitioner, in exchange for giving up her interest in the marital business (Fitzpatrick Cleaning, Inc.), hereinafter referred to as FCI, was to remain an "employee" of FCI at an inflated "wage" until December 31, 1999 or until completion of the college courses she is taking to obtain a teaching certificate. Petitioner had the option of extending her employment status for an additional six (6) months if she had not secured employment. 9. petitioner was to continue to work her regular 8-12 hours per week and receive $1,800.00 per month, plus continued paid medical coverage. 10. It was the intent of the parties that the $1,800.00 was part of the equitable distribution of the marital assets in the form of alimony/support that was to allow Petitioner the opportunity to gain the education and training to begin her career. 11. Since Petitioner was/is a full time student the $1,800.00 was/is her primary means of support for herself and her two minor children. . 12. At all times before and after the execution of the MSA Peti tioner has performed her duties for l"CI in a professional manner. 13. In March 1997 Petitioner was forced to file a Petition For Enforcement of the MSA due to Respondent's harassment, termination of her "employment" and refusal to pay his continuing financial obligation. 14. This honorable court, in an Order dated Ordered the Respondent to continue to pay Petitioner her $1,800.00. A copy of the order is attached as exhibit C. 15. Following a hearing on the Petition, this honorable court issued an order sustaining petitioner's petition and directed the Respondent to comply with the terms of the MSA. A copy of the order is attached as exhibit D. 16. On 9/9/97 a Protection From Abuse (Pl"A) Order was issued against the Respondent. A copy of PFA is attached as exhibit E. 17. In August 1997 a Petition was filed seeking attorney fee reimbursement from the respondent. 18. In an Order dated October 27, 1997 this honorable court ordered Respondent to reimburse Petitioner for the attorney fees expended to enforce the terms of the MSA. A copy of the order is attached as exhibit F. 19. On December 28, 1998 the Respondent was found guilty by District Justice Placey of harassment and defiant trespass in an incident at Petitioner's home. 20. During her "employment" the Respondent has changed Petitioner's job duties and responsibilities at l"CI without consulting with her or giving her the courtesies accorded other employees of FCI. 21. On January 14, 1998 the Petitioner was forced to file a Petition for Enforcement of Marital settlement Agreement when Reopondent unilaterally reduced her $1,800.00 monthly payment. 22. The Petition was withdrawn after Respondent paid Petition the amount she was due under the MSA. 23. On Friday January 22, 1999 the respondent came to Petitioner's place of employment with no legitimate purpose and harassed, threatened and otherwise annoyed her. 24. petitioner obtained a Temporary Pl"A against Respondent. 25. On Monday January 25, 1999 Respondent came to Petitioner's place of employment with l"CI and advised her that he was assigning her to another building. 26. On Monday, January 25, 1999 Petitioner gave her attorney the access card and keys to her former place of employment. 27. On Tuesday, January 26, 1999 Petitioner's attorney sent a letter and the access card and keys to Respondent's attorney. 28. On Thursday, January 28, 1999 Respondent's attorney informed Petitioner's attorney that the envelope arrived with a tear in it and the keys were missing. 29. In that telephone call with Respondent's attorney, Petitioner's attorney was assured that Respondent would continue to pay the $1,800.00 to Petitioner. 30. The $1,800.00 was payable $900.00 on the 1st and the 15th of each month. 31. Respondent failed to pay Petitioner her $900.00 payment on February 1, 1999. 32. Respondent has not assigned Petitioner to a new location. 33. Respondent had no legitimate reason to remove her from her pervious job assignment. 34. Respondent has no legitimate reason to withhold the payment of his contractually obligated $900.00 bi-monthly payments to Petitioner. 35. Petitioner' and her children depend on the payments from Respondent for their livelihood. 36. Undue hardship will be placed upon the Petitioner if Respondent is not ordered to immediately resume payments and continue payments to the Petitioner. 37. As a result of Respondent's continued harassment of Petitioner she has been unable to continue with her full-time pursuit of her teaching certificate. 38. Petitioner will not graduate by December 31, 1999, as previously contemplated. 39. Petitioner will be exercising her six (6) month option to extend her $1,800.00 monthly allocation. - '-"*~'-~*-"_:'~'<c-"~*.~~.___.<ftt. (.e-' -:~"<.c.".:tI.' '-:teo'"(t:- .:.:.' ':~'~;;:...-:....Jt<<:.:tC:~:a:t(.~..:tC.. .:.c-,~':~'<C<''''''~' ~ ,. - i~ S l~' ~ IN THE COURT OF COMMoN PLEAS ~ ~ OF CUMBERLAND COUNTY ~ ~ * 3 8,'. 6 : STATE OF ':t-,' - " PENNA. i $ .: * ....~~~~~.~..~:....~~!~!~~.~~~~.!.......................... : .:. I N I). .~.~.::l~.~.~.... .................. , ; ::' ......................................J!~.."'.nt1~l.......................... !I ~ 8 VerauI i: j ~,' ....99.~9:!:~!..~:....r.~:;:~!>>,~~.~~~~.!.......................... ,;11 I~': ........ .............................~~.~_I\~."n.t;,......................... 8 ~ S r. ~ DEe R EEl N i~ : Dq V 0 R ~Eb it Jl: '2.7 ' ~ ;,; AND NOW, ... .... . .................. 19....... It is ordered and $ :. decreed that .. ..C:~i'~. . !'!...f~~~~~:rlW~~.................... plaintiff, ~ .: ~~l ~ and. . .. . .. .. ..,' . PP'~Q'J.'fI.'( .01,. .F.l;T;'^'l:a.tCK .. . . . . .. . .. ... .. .. defendant, i ~ are divorced from the bonds of matrimony. : ~ The court retains lurlsdictlon of the following claims whrch have ~ ~ been railed of record in this action for which a final order has not yet $ ~ ~~~: . ~ . . .. . . . . . . . . . ,~~~~.r.~'?~!l.~'! .l:'~~.::;t?-g~. .~f!t!:!:.~f!f!\!lfl.t; .~9'F.~"l!1!!fl.~ ': I . . . . . . . . I , ~ : ...... ........ ~ ~~~.~~. ~(.~~?~,l.. .. .............. .. ............ .... '" ...... ~ ~ c y I': ~ s '.w. ! ; · '? ~ /, ('.A!#;: ~C1tL;,..: ~ ...... "-<' .. K. ,. ~~, 7'7'P~olho~Ola'~y" ll~ ,~ ~ ..,. __I ___.--.'11[ ~----- ----~--~~~~~~~~~-~-~-~~ f.,ch ...b,'+ A .,., MARRI~GE SETTLEMENT ~GREEMENT . ~ \ TUIS AGIUIE!CENT, made this /;- day of '. :V''''' , 1996, by and between CHARLES W. FITZPATRICK, hereinafter referred to a. HUSSAND and DOROTHY J. FITZPATRICK, hereinafter referred to ae WIFE. WIT N E SSE T H: WHEREAS, the parties were lawfully married on January 12, 1974 in Marlton, New Jersey; and WHEREAS, two children have been born as a result of this marriage, namely MATTHEW LEVI FITZ~ATRICK, D/O/B June 2, 1981 and JOSHUA LUCAS FITZPATRICK, D/O/S November 28, 1983; and WHEREAS, certain differences have arisen between the parties a. a re.ult ot which they have decided to sepa::ate and to live .eparate and apart from one another, and it is the intention of the HUSBAND and WIFE to live separate and apart for the rest of their natural livas, and the parties hereto are desirous of settling tully and tinally their respective financial and property rights and obligations as between each other, including without limitation, (1) the .ettlement of all matters between them relatinq to the ownership of real and personal property; (2) the settlement of all matters between them relating to past, present and future support and/or alimony; and (3) the settlement of all matters concerninq custody and support of the minor children; and WHERnS, durinq the parties' marriaqe there has been a complete disclosure of the earnings and property of each party, and 6",,4. h: f (3 each understands his/her rights under the Divorce Code of the Commonwealth of Pennsylvania; and WHEREAS, HUSBAND, havinq been properly advised by his counsel, R. Mark Thomas, Esquire, and WIFE, havinq been properly advised by her counsel, Thomas D. Gould, Esquire, the parties, havinq been so advised by their respective counsel, and following full and complete disclosure with regard to marital assets and the respective value of those assets, the parties hereto have come to this aqreement, which follows: NOW, THEREFORE, in consideration of the above recitals and the following covenants and promises mutually made and mutually to be kept, the parties, intendinq to be legally bound, aqree as follows: 1. AGREEMENT NOT TO BE A BAR TO DIVORCE PROCEEDINGS A Complaint in Divorce was filed on November 16, 1995 to Term and No. 95-6565 in the Court of Common Pleas of Cumberland County, Pennsylvania. The parties intend to secure a mutual consent, no- hult divorce pursuant to the terms of Section 3301(C) of the Divorce Code of 1980. The Oivorce Complaint filed by the HUSBAND on November 16, 1995 was ssrved on WIFE by certified mail, return- receipt requested on November 17, 1995. 90 days have passed since the tiling of the Complaint in Divorce and both parties hereby agree to execute an Affidavit of Consent and a waiver of their right to receive Notice of Intention to Seek Entry ot a Divorce eecree. The parties agree that unless otherwise specifically provided herein, this Aqreemen~ shall continue in full force and 2 e~~ect after such time the ~ina1 Decree in Divorce is entered with respect to the parties, and the parties agree that this Agreement shall be incorporated into the ~inal Decree in Divorce. No Court may change the terms of this Agreement, which shall be enforced in accordance with its terms. 2. PERSONAL RIGHTS HUSBAND and WIFE may and shall, at all times hereafter, live separate and apart. Each shall be free from all control, restraint, inter~erence or authority, direct or indirect, by the other in all respects as fully as if he or she were unmarried. Each may reside at such place or places as he or she may select. Each may, for his or her separate use or benefit, conduct, carryon and engage in any business, occupation, profession or employment which to him or her may seem advisable. This provision shall not be taken, however, to be an admission on the part of either HUSBAND or WIFE of the lawfulness of the causes which led to or resulted in, the continuation of their living apart. J . DEBTS with regard to joint debts, HUSBAND and WIFE have only one joint debt with a balance outstanding and that is the mortgAge on the marital residence. pursuant to the terms of this Agreement WIFE Agrees to accept full responsibility for the regular monthly mortgage payments and to hold HUSBAND harmless and to indemnify HUSBAND for any paymQnts on the mortgage which he may be compelled to make. J Each of the parties is responsible for any debts that they have personally acquired since March 1, 1994, the date of separation. In the event that either party is compelled to make payments on the debts acquired by the other party since March 1, 1994, the party who actually acquired the debt will hold harmless and indemnify the other for any monies paid on account of such debt. 4. PERSONAL PROPERTY " HUSBAND and WIFE hereby acknowledge that they have agreed upon the division of all tangible personal property, including jewelry, clothing, turniture, household equipment, appliances, motor vehicles, recreational vehicles and tools. The parties have already divided the personal property according to their agreement and each party is hereby the sole owner of any personal property now in their possession. This Agreement shall act as a Bill of Sale evidencing the complete and tinal transfer of all personal property to the respective parties. HUSBAND and WIFE agree to cooperate in the transfer of all titles and insuranc3 regarding all motor vehicle. or recreational vehicles in the possession of either party. 5. AFTER-ACOUIRED PERSONAL PROPERTY Each ot the parties shall hereafter own and enjoy, independently of any claims or rights ot the other, all items ot personal property, tangible or intangible, hereafter acquired by him or her, with full power in him or her to dispose of the same as 4 tully and effectively, in all respects and for all purposes, as though he or she were unmarried. 6. MARITAL RESIDENCE HUSBAND and WIFE are the owners by tenants by the entireties ot the marital residence located at 499 Linden street, Mechanicsburg, Cumberland county, pennsylvania. HUSBAND hereby agree. to transter all his right title and interest in the marital re.idence to WIFE so that WIFE will become the sole and exclusive owner of the marital residence. HUSBAND will transfer all his right title and interest by way of a deed, a copy of which is hereby attached to this agreement as Exhibit "4\". WIFE is to make good faith efforts to refinance the outstanding mortgage on the marital residence into her name alone so that HUSBAND will not bear any financial responsibility for the marital residence. WIFE shall have one (1) year from the date of final execution of this Agreement within which to refinance the outstanding mortgage obligation in her name alone. However, it is understood that WIFE has previouslY made an effort to have the hou.e refinanced in her name alone and she will continue to make a good faith effort to the have the refinancing done as soon as po..ible. In the event that WIFE is unable to accomplish the refinancing of the marital residence mortgage obligation in her name alone it is hereby agreed that after the expiration of one year from the date of final execution of this Agreement, the marital residence will be sold. Should this occur WIFE will 5 receive all the net proceeds from the sale of the marital residence. 7. fAMILY BUSINESS HUSBAND and WIFE have operated a family business which 1a incorporated and is titled "FitzpatriCk Cleaning, Inc.". pursuant to thfl termS of this Agreement WIFE will surrender and transfer all her shares in the corporation known as "Fitzpatrick Cleaning, Inc. ", to HUSBAND so that HUSBAND will be the sole owner o~ the . family businesS and corporation. HUSBAND hereby agrees to hold WIFE harmless and to indemnify WIFE on any claims made against Fitzpatrick Cleaning, Inc. for past or future claims. It is agreed however that WIFE will continue as a full-time employee of Fitzpatrick Cleaning, Inc. and will receive a monthly groSS salary in the amount of $1,800.00, pluS medical coverage. WIFE's employment with Fitzpatrick Cleaning, Inc. and the medical coverage, will continue until December :Jl, 1999, or until the completion of college courses which WIFE is currently takin9 for the purpose of obtaining a teaching certification, whichever first occurs. If, at the end o~ this-time period WIFE has not secured employment then WIFE will have the option to extend the Agreement with regard to her full-time employment and medical coverage for an additional six (6) months. Although this Agreement states that WIFE will continue to work as a full-time employee of Fitzpatrick Cleaning, Inc., "full-time employee" is defined such that wIFE will work a regularly schedule 6 , work week which will consist of a minimum of ten (10) hours work per week and a maximum of twelve (12) hours work per week. WIFE will work Monday and W.dn.sday of .ach week from 4:00 p.m. to 8:00 p.m., and will work .very oth.r Friday trom 4:00 p.m. to 8:00 p.m. WIFE understands and agrees that there will be occasions when she may b. call.d upon to till in for an absent employ.. or oth.r em.rq.ncy. She aqraeo that in qood faith sh. will till in to work when called upon unless she has a previous committment. HUSBAND aqree. that he will exercise good faith in requesting WIFE to work additional hour. and will only do so if a genuine need has arisen. It is unde~stood between the parties that in the past two (2) years the WIFE has worked a schedule similar to the one set fort~ in this Aqreement and has been called upon to till in on occasion. However, past experience tor the past two years has been that WIFE has still only averaq.d b.tw.en ten (10) and t....e1v. (12) hours work p.r we.k. It is the und.rstanding at both parti._ that even with WIFE beinq called in on an occasion to work in an unscheduled time p.riod her work will still average between ten and twalVlt hours per ",.ek. I It HUSBAND sells the tamily business prior to December 31, 1~99, he aqree. to continue makinq the payments set torth herein as thouqh WIFE were still workinq tor the business. HUSBAND will have th. option to either reduce the balance ot monies owed to WIFE under this employment agreement to present value and paying her a lump sum, or he may continue to make payments as set forth in this 7 Agreement. S. pENSION lUro EMPLOYMENT BENEl"!TS Neither of the parties is the owner of any pension and/or employment benefits not specifically mentioned in this Agreement. Each party waives its right, claim or interest in any pension or employm~nt benefit which the other may have. 9. ALIMONY Bot~ parties acknowledge and agree that the provisions of this Agreement providing for equitable distribution of marital property are tair, adequate and satisfactory to them and are accepted by them in lieu of and in full and tinal settlement and satisfaction at any claims or demands that either may now or hereatter have against the other tor support, maintenance or alimony. HUSB~NO and WIFE turther, voluntarily and intelligently, waive and relinquish any right to seek trom the other any payment tar support or alimony. Each party shall indemnify, detend and hold the ather harmle.. again.t any tuture action ot either support or alimony brought by or on behalt ot the other, such inde1Dnity to include the actual counsel tees ot the detendant in any such future action. , 10. CUSTODY AND CHILD SUPPORT HUSBAND and WIFE wll:. continue to reside in close geographical proKimity to one another and they each desire to retain all rights at custody with regard to bath children. It is agreed that the children will pri1DarilY reside with WIFE since WIFE will continue to live in the marital residence which has been the home tor the 8 children in the past. HUSBAND will continue to have liberal rights with regard to visitation since the parties have been able to amicably work out custody issues without the need tor a court order in the past the parties will continue to resolve visitation issue. in like tuhion. HUSBAND will pay cllild support to WIFE in the amount ot $100.00 per month until Matthew graduates trom high school. Wilen Matthew qraduates trom high school it is agreed that the parti.s will evaluate the amount ot support HUSBAND is payinq with l\ purpo.e toward reducing that monthly amount and ,continuinq the lower amount ot support until such tima as Joshua graduates trom hiqh .chool. 11. MUTUAL R~SPONS!B!LrTrES HUSBAND hereby aqr.e. that to the best ot his ability Ile will continue to work with Fitzpatrick Cleaninq, Inc., and maintain the tinancial stability ot the corporation so lonq as the maintenance i. within his control so a. to ensure that he will meet the tinancial and employment obliqations provided to WIFE. under the term. ot this Aqreement. " WIFE hereby aqree. that to the best ot her ability she wi,l tulHll her responsibilities as a tull-time employee ot Fitzpatrick Cleaninq, Inc., tor the purpose ot helpinq to maintain the tinancial stability ot the corporation. 12. R~L~ASE Subject to the provisions ot this Agraement, each party has g . _i''''''' " release~ an~ ~i8charge~, an~ by this Agreement does for himself or her.elf, an~ his or her heirs, legal representatives, executors, administrators and assigns, release, indemnifY (including actual leqal fees) and discharge the other of an~ from all causes of action, claims, rights, or ~emands, whatsoever in law or equity, including equitable distribution, spousal support, alimony, counsel rees, alimony pendente lite and expenses which of the parties aqainst the other ever ha~, now has, or may have in the future under the pennsylvania Divorce code, as amen~e~, or under any other statutory or common law, except as set forth beloW in this paraqraph, all causes of action for ~ivorce, and all causes of action ror breach of any provisions of this Agreement, including proceedings to enrorce this Agreement pursuant to the provisions of the Divorce Code. Each party also waives his or her right to request marital counseling, pursuant to the oivorce Code. 13. H~IVERS OF CLAIMS AGAINST ESTATES Except as herein otherwise provi~ed, each party may dispose or his or her own property in any way, and each party he~eby waives and relinquishes any an~ all rights he or she may noW have or herearter acquire un~er the present or future lawS of any jurisdiction, to share in the property or estate of the other as a re.ult of the marital relationship, including without limitation, dower, curt.sy, statutory allowance, widow'S allowance, right to take against the Will of the other, an~ right to act as administrator or executor of the other's estate, and any right 10 r _ ,,.......... ~, existing noW or in the tuture under the pennsylvania Divorce code, as amended trom time to time, and each will, at the request ot the other, execute, acknowledge and deliver any and all instruments which may be necenary or advisable to carry into eHect this mutual waiver and relinquishment ot all such interests, rights and claims. 14. ~tGHTS ON EX~CUTtON ImmediatelY upon the execution ot this Agreement, the rights at each party against the other, despite their continuing marital status, shall terminate and be as it they were never married. 15. ~EGAL FEES It either party to this Agreement:, resorts to a lawsuit: or other leqal action to entorce the provisions ot this Agreement, the successtul party shall l:Ie entitled to recover his or her reasonable counsel tees, actually incurred, trom the other as a part ot the judqment entered in such legal action, whether in law, in equity or pursuant to the provisions ot the Divorce code, as the same shall be determined by the court. 16. INCORPO~ATION IN FINA~ D!VORCE The terms ot this Agreement shall be incorporated but shall not merge in a tin~l divorce decree between the parties. This Aqreement shall survive in its entirety, resolving the spousal support, alimony, equitable distril:lution and other interests and rights of the parties under and pursuant to the Divorce Code of the commonwealth ot pennsylvania, and no court asked to enforce or II " I' interpret this Agreement shall in any way change the terms of this Agreement. This Agreement may be enforced independentlY of any child su~port order, divorce decree or judgment and its terms shall talce precedence over same, remaining the primary obligation of each party, Except as herein otherwise agreed, this Agreement shall remain in ~ull ~orce and effect regardless of any change in the marital status of the parties. It is warranted, covenanted and repre.ented by HUSBAND and WIFE, each to the other, that this Agreement is' lawfUl and enforceable, and this warranty, covenant and representation is made for the specific purpose of inducing the parties to execute the Agreement. 17. ~DDITIONAL I~STRUME~TS Each of the parties shall from time to time, at the request of the other, execute, acknowledge and deliver to the other party, any and all further instruments that may be reasonably required to give ~ull torce and effect to the provisions of this Agreement. 18. JNTIRE AGREEMENT 'l'his Agreement contains the entire understanding of the partie. and there are no other representations, warranties, covenants or undertalcings other than those expressly set forth herein. HUSBAND and WIFE aclcnowledge and agree that the provisions o~ this Agreement with respect to the distribution and division of marital and separate property are fair, equitable and sati.factory to them, based on the length of their marriage and other relevant factors which have been talcen into consideration by the parties. 12 Both parties hereby accept the provisions o~ this Agreement with respect to the division o~ property in lieu o~ and in ~ull and ~inal settlement and satis~action o~ all claims and demands that they may now have or herea~ter have against the other ~or equitable distribution of their property by any court of competent jurisdiction. HUSBAND and WIFE each voluntarily and intelligently waive and relinquish any right to seek a court ordered determination and distribution o~ marital property, but nothing herein contained shall constitute a waiver by either party of any rights to seek the relie~ of any court ~or the purpose of en~orcing the provisions o~ this Agreement. 19. MODIFICATION AND WAIVER A modi~ication or waiver o~ any o~ the provisions o~ this Agreement shall be .~f.ctive only i~ made' in writing and executed with the sam. ~ormality as this Agreement. The ~ailure of either party to insist upon strict performance of the provisions o~ this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. , , 13 , ' They shall have no effect whatsoever in determining the rights or obligations of the parties. 22. CONTROLLING LAW This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the parties hereto have set their hands ancl ..ale thb 7 'Q'h. day ot ~ , 1996. Thi. Agreement i. execu~d in duplicate, and in counterpart., . ancl HUSBAND ancl WIFE, as parties hereto, acknowledge the receipt ot a duly executed copy hereof. WITNESS: lSEA~L - (~1!/1 i'). ~I.( , , ,.~ CHARL!l6 lot. . FITztrRIClC:, Plai~tiff/Re.pond.~t v. IN Tal:: COtrn,; ~F COMMON PI;oEAS OF I CUMaERLAND COUNTy, PENNSYLV~~IA I I 95-6565 CIVIL TERM I I CIVIL ACTION - LAW I IN DIVORCE DOROTHY J. FITZPATRIC~, Defendant/Petitioner IN REI PETITION rOR ENFORCEMENT OF MARITAL SETTLEMENT QE.pEJLClL._c;QU::!'I,' AND NOW, this 30th dar of June, 1997, the Court having heard the te.ti=ony pre.ented on the reque.t of Dorothy Pitzpatrick to direct Charles Pitzpatrick to abide by the ter=s o! the agreement of the partie. of June 7, 1996, the Court directs Charles Fitzpatrick to im=ediately comply with Paragraph 7 of the =arital settlement agreement by rein.tating Hrs. Pit:patric~'s employment scatus with Fit:patrick Cleaning, Inc., and continuing to ma~e the $1,800.00 monthly payments to her and provide her with medical coverage. 8y the Court, David T. ~luz, Is quire Couns.l fQr Plaintiff/ae.pondent T~_s D. Gould, Isquire ~uns.l fQr Defendant/Petitioner Shedff Islr Cl(h',bd' f) ~ /~ .. ~--/ , . DOROTHY JEAN ffiZPA TRlCK, Plaintiff' : IN mE COURT OF .cOMMON P 0 : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 97.2907 CIVIL TERM v. CHARLES W ALTER FITZPATRICK, Defendanl : PROTECTION FROM ABUSE CONSENT AGREEMENT This Agreement is enlered on lhis~ of..iJ.u-~. ~ ~ 1997, by the plaintiff', Dorothy Jean Fitzpalrick, and Ihe defendant, Charles Walter Fitzpalrick. The plaintiff'il represenled by Joan Carey of LEGAL SERVICES, INC.; the defendanl is represenled by David T. Kluz, Atlorney at Law. The panies agree thaI the Order of on July 18, 1997, be vacated and lhallhe Prolection Order of June 30, 1997, be modified as follows: 1. The defendanl, Charles Waller Fitzpatrick, shall slay away from the PeMsylvania Manufacturers Association Group (PMAG) or any other work sile where the plaintiff, Dorolhy Jean Fitzpatrick, has been assigned 10 clean by Fitzpatrick Cleaning lnc, (FCI) during the plaintiff's work hours except Ihal only in case of a bona fide business emergency may the defendant appear at a FCI work sile during the plaintiff's work hours. 2. The defendanl shall stay away from any olher places where the plaintiff' is employed. In all other respects Ihe Prolection Order enlered on June 30, 1997, remains in eff'ect. . . . ., ~r.""l""" o 'r- ;;i~h;' , " ' CHARLES H. FITZPATRICK. Plaintiff/Respondent VS DOROTHY J. FITZPATRICK. Defendant/Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA 95-6565 CIVIL TERM IN DIVORCE IN RE: PfTITION TO fNFORCE SfTTLEMENT t)RDfR OF COllRT AND NOH. October 27, 1997. 9:55 a.m., the matter having been called for hearing. and counsel having agreed that the issue is a matter of law, and having further agreed that the amount of $866.00 in attorney's fees was reasonable. the court does order that the plaintiff shall pay to the defendant the amount of $866.00 in attorney's fees for the enforcement proceeding held on June 30. 1997. And further. we refuse to award anymore counsel fees for the filing of the subsequent petition asking for counsel fees. By the Court. David T. Kluz. Esquire 212 Locust street. suite 404 Harrisburg. Pa. 17101 For the Plaintiff/Respondent Thomas D. Gould. ESQUire~ 2 East Main street Shiremanstown. Pa. 17011 For the Defendant/Petitioner :mtf ElCh;l,it F'