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HomeMy WebLinkAbout2009-462 Civil TIMOTHY P. NICKLIS, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : DOROTHY D. NICKLIS, : DEFENDANT : 09-462 CIVIL TERM MEMORANDUM OPINION AND ORDER OF COURT Masland, J., May 25, 2010:-- BACKGROUND On February 19, 2010, this court was presented with a praecipe to transmit record, which was incomplete in that it contained no information in paragraph 3 (pertaining to the date of execution of affidavits). At the direction of this court, plaintiff filed a revised praecipe to transmit record on March 22, 2010. Although the information was complete in paragraph 3 the court noted a discrepancy in the file regarding the date of separation. As noted in our order of April 9, 2010, there were three distinct inconsistent dates of separation: in the complaint -- November 27, 2008; in plaintiff’s petition to enter a divorce decree – November 23, 2006; and in plaintiff’s affidavit under Section 3301(d) of the Divorce Code -- November 24, 2007. Given that only two of these dates would justify a divorce under Section 3301(d), the court scheduled a hearing to resolve the matter. In our order of April 9, 2010, the court also noted that defendant filed a counter- affidavit under Section 3301(d) which was silent on the question of separation and whether the marriage was irretrievably broken. Defendant’s affidavit did circle paragraph 2(b) indicating a request for economic relief; however, the court noted that, 09-452 CIVIL TERM contrary to the express direction in the affidavit, defendant had failed to file “claims with the prothonotary in writing and serve them on the other party.” Therefore, the court set a hearing for May 19, 2010, to determine: (a) If the parties had been separated for over two years; (b) if the marriage was irretrievably broken; and (c) if there were any economic issues to be decided. On May 19, 2010, plaintiff appeared with counsel, John M. Kerr, Esquire, and defendant, who is self-represented, appeared via telephone. Upon consideration of the testimony and argument proffered, the court finds as follows: FINDINGS OF FACT 1. The parties were married on June 21, 1997. 2. The parties separated on or about September 6, 2006. 3. In July of 2007, the parties executed a marital settlement agreement, which was governed by the laws of South Carolina, in which they effectively disposed of their various rights, including their property rights. 4. The parties were each represented by counsel during the drafting of the aforesaid agreement. 5. In November of 2007 the parties attempted to reconcile and plaintiff moved defendant and some of her property from South Carolina to Pennsylvania. 6. On or about November 21, 2007, the reconciliation attempt having failed, the parties separated with defendant moving back to South Carolina. 7. When defendant returned to South Carolina she took some but not all of the furniture which she had brought from South Carolina. -2- 09-452 CIVIL TERM 8. The parties have lived separate and apart since the end of November, 2007. 9. Both parties testified that the marriage is irretrievably broken. 10. The only potentially outstanding issue is defendant’s claim for economic relief, which she made by circling Paragraph 2(b) in the counter-affidavit under Section 3301(d) of the Divorce Code that was executed by her on March 17, 2010 and filed with the Prothonotary on March 19, 2010. 11. Defendant failed to file for any specific economic claims with the Prothonotary and also failed to serve the plaintiff with any formal claim for the items. 12. Even if the defendant had properly filed and preserved a claim for relief, at the hearing, defendant testified that she “want[ed] help financially,” but was unable to specify any appropriate relief in that: (a) she had previously filed and withdrawn an action for support in April of 2009; and (b) the few items of property that were not returned to South Carolina were either given away, of insignificant value, or were returned to defendant’s family that was residing in Connecticut. Accordingly the court makes the following conclusions of law. 1. The parties have been separated for over two years. 2. The marriage is irretrievably broken. 3. There are no outstanding economic issues that must be resolved. Wherefore, the court shall sign the divorce decree previously submitted by plaintiff. ORDER OF COURT AND NOW, this day of May, 2010, after a hearing to determine the date of separation, whether the marriage was irretrievably broken and if there were -3- 09-452 CIVIL TERM any outstanding economic issues, the court finds that the parties have lived separate and apart for over two years, the marriage is irretrievably broken and there are no economic outstanding issues that would preclude the entry of a divorce degree. By the Court, Albert H. Masland, J. John M. Kerr, Esquire For Timothy P. Nicklis Dorothy D. Nicklis, Pro se P.O. Box 3331 Conway, SC 29528 :sal -4-