JOHNSON - Rosen...2[ ~ fJ·% PREPARED BY:P1\.UL BROCKOP-SROCk & PAYNE, P.A • . ,:RETURN TO:...

Orange CountyJOHNSON

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fJ~~·%~~ PREPARED BY:P1\.UL BROCKOP-SROCk & PAYNE, P.A •

. . ,:RETURN TO: KELLIE C. JOHNSON 519 HIGHGROVE DRIVE CHAPEL HILL, NC 27516

NORTH CAROLINA

ORANGE COUNTY

([)

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SEPARATION AND PROPERTY SETTLEMENT AGREEMENT

THIS AGREEMENT made this J4'/' day of March, 2005 between Theodore DeMott Johnson (Ted) of Rockland County, New York, hereinafter referred to as the

"Husband", and Kellie Cooper Johnson of Orange Countr, North Carolina hereinafter referred

to as the "Wife":

WITNESSETH:

THAT WHEREAS, the parties hereto were married on or about May 22, 1999 and

certain differences have arisen between them rendering it undesirable for them to continue to live

together as Husband and Wife, and in consequence of these differences they separated on

October 4, 2004 and intend to hereafter live separate and apart; and

WHEREAS, each ofllie parties is more than eighteen (18) years of age, and desires to

confirm their s~paration and to make agreements in connection therewith, including the

settlement and adjustnlent of their property rights and other rights, responsibilities and

obligations growing out of their marital relationship; and

WHEREAS, there was one child born of the parties' marriage,namely, Theodore

DeMott Johnson IV (Teddy), born October 9, 20p2.

WHEREAS, after mature consideration and judgment, each party hereby enters into this

written agreement and fully understands the terms, conditions and provisions hereof, and deems

such terms to be fair,just and reasonable;

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NOW, THEREFORE, in consideration of the premises, the mutual promises and

undertakings herein contained and for other good and valuable consideration, the receipt of

which is hereby acknowledged, each party stipulates, agrees and covenants with the other as

follows:

1. SEPARATE MAINTENANCE. The Husband and Wife shall at all times

hereinafter live separate and apart, each free from the marital control and authority of the other,

direct or indirect, as if each were single and unmarried; and shall reside at such place or places

and with such person or persons as each may desire; and shall conduct, carry on and engage in

any employment, business, trade or profession each may desire, choose or deem fit. Except as

otherwise provided in this Agreement, all income and profits realized by either party shall be for

his or her sole and separate use and benefit, free from any and all control, restraint or

interference, direct or indirect, of the other party.

2. COVENANT OF NON-INTERFERENCE. Neither party will, in any manner,

molest or interfere with the personal rights, liberties, privileges or affairs of the other, and each

shall henceforth live his or her own personal life as he or she may see fit, unrestricted in any

manner by the marriage and relationship previously existing between them. Specifically, neither

party shall come onto the residential premises of the other without express prior permission from

the other party. Furthermore, both parties agree not to use or be under the influence of alcohol

when in the presence of the other party.

3. SUBSEQUENT PROPERTY TRANSACTIONS. Except as otherwise

provided herein, either party may at any time hereafter acquire, possess, encumber, transfer,

conveyor otherwise deal with any and all classes of property, real or personal, tangible or

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intangible or mixed, whether now owned or possessed or hereafter acquired by either ofthem,

without the joinder or consent of the other party and with the same force and effect as ifthey

were unmarried. If it shall become necessary to pass, transfer or guarantee good title, a party

shall, upon request of the other, execute any deed, bill of sale or document evidencing a

conveyance of property. It is agreed between the parties that each of them will at any time or

times hereafter make, execute and deliver any and all of such other and further assurances, as

either of said parties shall reasonably require for the purposes of giving full effect to these

agreements. No liability or expense shall be incurred by the party requested to execute such

document. It is further agreed that the parties shall execute a Memorandum of Separation

allowing the parties to give effect to this provision. Said Memorandum shall be prepared by

Wife's attorney and filed with the Orange County Registrar of Deeds.

4. RELEASE OF PROPERTY AND ESTATE RIGHTS. Except as otherwise

provided herein, each party hereby waives, relinquishes, renounces and quitclaims unto the other

any and all rights, title, interest and control he or she may now have or shall hereafter acquire

under the present or future laws of any jurisdiction, in, to or over the person, property or estate of

the other, arising by reason of their marital relationship or under any previously executed

instrument or will, made by either of them, including, but not limited to, dower, courtesy,

statutory allowance, widow's allowance, homestead rights, right to take in event of intestacy,

right to any share as the surviving spouse, any right of election, right to take against the last will

and testament of the other or to dissent therefrom, right to act as administrator or executor of the

estate of either, and any and all other right, title or interest of any kind in and to any said property

or estate of any kind of the other. This provision shall not apply to any Social Security benefits


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the parties may have by reason of their marriage to each other. In addition, except as otherwise

provided herein, each party waives, releases and renounces, and hereby conveys, quitclaims and

assigns over to the other party and his or her heirs, executors and administrators, any right of

inheritance under a will executed by the other party prior to the date of this agreement, any

beneficial or administrative right arising under any trust created by the other party prior to the

date of this agreement, any right to insurance proceeds payable by reason of the death or

disability of the other party, and any right to insurance proceeds payable by reason of damage or

destruction to any real or personal property owned separately by the other party, whether such

property was distributed under this agreement or acquired before or after the execution of this

agreement by the other party.

5. DEBTS.

A. Present Debts. The parties agree to the following disposition of their

marital debts:

The parties have a joint Citibank Visa and a joint Chase MasterCard. Wife shall

be responsible for the balance on the Citibank Visa and the Chase Mastercard and shall

indemnify and hold Husband harmless from the same. Wife further agrees to take any

and all necessary steps to remove Husband's name from said card or, alternatively, to

close said account.

The Wife shall assume as her sole and separate responsibility any and all other

credit cards or credit accounts held solely in her name

The Husband shall assume as his sole and separate responsibility any and all other

credit cards or credit accounts held solely in his name.

Johnson Separation Agreement Page 4 of22

· , , .

B. Future Debts.

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06/22/200S 03.

Unless otherwise provided herein, neither party shall hereafter charge or cause or

pennit to be charged to or against the other any purchase, which either of them may

hereafter make, and shall not hereafter create any obligations in the name of or against

the other and shall never hereafter secure or attempt to secure any credit upon or in

connection with the other, or in his or her name.

It is specifically understood and agreed that all debts incurred by either of the

parties subsequent to October 4,2004 shall be the sole and separate responsibility of the

party incurring such indebtedness.

6. TAX LIABILITY.

A. 2004 Income Tax Returns. The parties agree to file joint State and Federal

income tax returns for 2004. The parties agree to divide any and all refund or liability

arising from said State and Federal income tax return with Wife receiving sixty two and

one-half percent (62.5%) and Husband receiving thirty seven and one-half (37.5%) of any

refund or liability associated with the same.

B. 2005 and All Subsequent Years. The parties agree to file separate State

and Federal income tax returns for 2005 and all subsequent years. The parties agree that

any tax refund or liability shall be the sole and separate property or responsibility of the

party filing said returns.

C. Dependency Exemption, Credits and Deductions. The parties agree that

Wife shall be entitled to claim the minor child as a dependent and entitled to any

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applicable childcare tax credits for tax year 2005. On January 1, 2006 when child

support is recalculated, the tax credits will also be renegotiated.

D. Audits. In the event of an audit of any of the parties' joint tax returns, the

parties agree to cooperate fully as to any questions, document requests or appearances

regarding same. The parties shall be responsible for and shall defend, indemnify and

hold each other harmless on any additional taxes, interest and penalties owed on their

respective incomes or on any deductions or allowances related to their individual

incomes. If a party has provided false information, incomplete data or information that

otherwise results in additional taxes, interest or penalties for the other party, the innocent

party shall be fully compensated for any such expense by the party causing same.

7. WAIVER OF ALIMONY AND POST SEPARATION SUPPORT. Each

party hereby waives all claims and demands against the other for post separation support and

alimony, including allowances for attorney's fees and suit money which either now has or may

hereafter have or may in any way be or become entitled to by reason of their marriage to one

another. The parties agree that this settlement is a total and complete release of each party by the

other of all such matters and charges whatsoever except as herein otherwise provided.

8. PROPERTY DIVISION AND SETTLEMENT. It is in the best interest of the

parties to divide their marital property through a property settlement and thus they hereby agree

to the following division of their property.

A. Marital Home. The parties own a home located at 1501 FernleafPlace,

Hillsborough, North Carolina 27278 (hereinafter referred to as the "Marital Home").

Said Marital Home is currently enc~bered by a mortgage held by GMAC in the amount


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of $247,396.75 in the name of Wife alone. Pursuant to this Agreement, Wife shall retain

possession of the Marital Home as her sole and separate property and shall be responsible

for all monthly payments towards the mortgage, taxes, insurance, repairs and household

utilities and agrees to indemnify and hold Husband harmless from any liability associated

with same. Within thirty (30) days of execution of this agreement, Wife agrees to

refinance said mortgage in order to pay to Husband the amount of $68,500.00, which

represents Husband's share of the equity in the Marital Home reduced by one-half the

value of Husband's Mellon Stock. At the time of the refinance, and after said amount has

been paid to Husband, Husband agrees to sign a North Carolina General Warranty Deed

in order to deed his interest in the Marital Home to Wife alone. The Marital Home and

all equity therein shall hereafter be the sole and separate property of Wife, free from any

right or claim by Husband.

B. Household Furnishings and Other Personal Property.

Each party shall retain as their sole and separate property all of his or her clothing

and personal effects. With the exception ofthe items listed on Schedule A attached to

this Agreement, the parties agree that each shall retain all household furnishings currently

in his or her possession and that such household furnishings shall be the sole and separate

property ofthe party with the possession of the property at the time that this Agreement is

executed. The items listed on Schedule A of this Agreement shall be divided as mutually

agreed upon by the parties.

C. Vehicles.

The parties hereby agree to the following disposition of their motor vehicles:

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(1) Wife. The Husband hereby transfers, assigns and relinquishes unto

the Wife any and all of his right, title and interest in the 1999 Jeep Grand

Cherokee. After the execution of this Agreement said vehicle shall belong solely

to the Wife, free from any claim or right of Husband.

(2) Husband. The Wife hereby transfers, assigns and relinquishes unto the

Husband any and all of her right, title and interest in the 2000 Volkswagen Jetta.

After the execution ofthis Agreement said vehicle shall belong solely to the

Husband, free from any claim or right of the Wife.

(3) Negligent Operation. Each party agrees to indemnify and hold the

other harmless from all liability arising by reason of their separate operation of

any ofthe aforesaid vehicles.

(4) Insurance, Taxes. Wife shall be solely responsible for maintenance

ofinsurance and payment of taxes on the 1999 Grand Jeep Cherokee. Husband

shall be solely responsible for maintenance and the payment of taxes on the 2000

Volkswagen Jetta. Wife agrees to maintain insurance on the 2000 Volkswagen

Jetta for the benefit of Husband until May 17, 2005, at which time Husband shall

obtain his own insurance and be responsible for all payments associated with the

same.

(5) Transfer of Title. At any time, upon the request of the other party,

either party shall execute and deliver to the party such instruments or documents

as may be necessary or appropriate to effectuate the transfer oftitle to the

aforesaid vehicles.

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D. Kayak, Boat and Motor. Husband shall take as his sole and separate

property the Kayak, Boat and Outboard Motor free from any claim or right of

Wife.

E. Bank and Financial Accounts. Husband and Wife agree that there are !

joint checking and savings accounts with an approximate total balance of$17,344.00.

Said accounts shall be closed as of the date of this Agreement. The parties agree that

Wife shall receive a total of$12,009.00 or 69.2% of the balance in said accounts and

Husband shall receive $5,335.00 or 30.8% of the balance in said accounts. Furthermore,

the parties agree that Wife paid Husband an additional $4,000.00 from her sole and

separate funds on January 19,2005. Furthermore, both parties are entitled to keep any

and all accounts in their sole and separate names.

F. Retirement. Wife has retirement accounts through her employer, Glaxo

Smith Kline and her previous employer, Bayer. The parties agree that the total value of

the Glaxo Smith Kline account as of the date of separation is approximately $43,539.32.

Wife shall be entitled to the funds in her Glaxo Smith Kline retirement account as her

sole and separate property free from any claim or right of Husband.

Furthermore, the parties agree that the total value of the Bayer account as of the

date of separation is approximately $83,775.06. Pursuant to this Agreement, Wife shall

receive seventy percent (70%) ofthe value in the Bayer retirement account and Husband

shall receive thirty percent (30%) of the value in the Bayer retirement account or

approximately $25,132.52, plus any passive growth thereon from the date of separation

until the date of transfer. Said division shall be accomplished by way of Qualified


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Domestic Relations Orders to be prepared by Wife's attorney within ninety (90) days of

the date of this Agreement. The Husband agrees to provide and sign all necessary

documentation in order to give effect to the Qualified Domestic Relations Order.

Husband does not currently have any retirement accounts associated with his past

or present employment.

G. Stock Accounts. The parties agree that there is a Mellon stock account in

Husband's sole name. Pursuant to this Agreement, Husband shall retain said account as

his sole and separate property.

H. Quattro Brands. Wife hereby relinquishes unto the Husband any and all of

her right, title, or interest in Quattro Brands. Said business and all its assets and liabilities

including the initial investment of $20,000.00 shall be the sole and separate property of

Husband.

9. LIFE INSURANCE. The parties agree that Wife shall have the right to

maintain a life insurance policy on Husband's life for so long as Husband would have an

obligation for support to the minor child under applicable North Carolina law. The parties

further agree that Wife shall be the owner of said life insurance and shall be responsible for any

premiums associated with the same. Husband shall cooperate with Wife in obtaining or

maintaining life insurance on his life. Wife's term life insurance policy shall be the sole and

separate property of Wife. Wife shall be responsible for any and all premiums associated with

the term life insurance policy on her life.

10. EQUITABLE DISTRIBUTION. This Agreement is the act of the Husband and

the Wife in equitably dividing their property as provided under N.C.G.S. §50-20(d). Each

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releases the other from any further claim which would or might arise in favor of either under

N.C.G.S. § 50~20, et seq., or any other state or federal law involving division of property

acquired during marriage.

11. FINAL SETTLEMENT. Itis the intent of the parties that this Agreement

constitutes final settlement of all rights and interest arising from the marriage of the parties,

including a final settlement of marital property, and each party acknowledges that the settlement

herein provided for is deemed to be an equitable settlement and distribution in lieu ofthe

provisions of General Statute 50~20, and expressly releases and waives any claims arising

thereunder. In addition thereto, each party releases the other from duties and obligations of

support and maintenance, including attorney fees except as herein provided, and each party

understands that this agreement may be pleaded in bar of any right or claim arising from the

marriage between the parties.

12. TRANSFERS OF PROPERTY INCIDENT TO DIVORCE. The parties agree

that (i) the transfer of property hereunder is related to the divorce; (ii) that the transfer hereunder

is a transfer incident to the divorce; (iii) that the intent and purpose of this Agreement is for the

transfer ofproperty hereunder to be tax free pursuant to § 1041 of the Internal Revenue Code and

the applicable provisions of North Carolina law and for no gain or loss to be recognized by either

party as a result of such transfer; and (iv) that they will file a formal election if necessary or

otherwise take such actions as may be required by applicable provisions of the state or federal

income tax law and regulations to give full force and effect to their aforesaid intent and purpose.


Page II of22

13. CHILD CUSTODY AND VISITATION:

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A. Visitation Schedule February 2005 through December 2005. The parties agree that it

is in the best interest of the minor child that the parties share joint legal custody with

Wife having primary physical custody. Pursuant to this Agreement, from February

2005 through June 2005, Husband shall be entitled to visitation with the minor child

in or near the minor child's home at Wife's discretion. Furthermore, Husband shall

be entitled to four days of visitation per month while in town as the parties mutually

agree. Husband shall have no overnight visitation until May 2005 without the

consent of Wife. Beginning July 2005 through December 2005, the parties agree that

Husband shall continue to have four days of visitation per month while visiting North

Carolina, but when agreed upon by both parties. Wife will take the minor child with

her on business trips, when possible, to New Jersey/New York with the intention of

allowing Husband to have visitation with the minor child while Wife conducts

business. Furthermore, Husband agrees not to use or be under the influence of

alcohol when in the presence of the minor child. Wife shall have the right to refuse

Husband's visitation with the minor child if Husband is under the influence of

alcohol.

B. Visitation Schedule beginning January 2006 Pursuant to this Agreement, the parties

agree to continue the four day per month visitation schedule with Husband exercising

his visitation either in the state of North Carolina or in New Jersey/New York with

age appropriate travel for as long as Husband is living in the New Jersey/New York

area. Furthermore, Husband agrees not to use or be under the influence of alcohol


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when in the presence of the minor child. Wife shall have the right to refuse

Husband's visitation with the minor child if Husband is under the influence of

alcohol.

C. Holidays/Summer.

1) Thanksgiving. The child will spend Thanksgiving in 2005 and each odd-

numbered year thereafter with the Wife. In 2006 and each even-numbered

year thereafter, the child will spend Thanksgiving with the Husband.

2) Christmas Eve and Christmas Day. The child will spend Christmas Eve and

Christmas Day in 2005 and each odd-numbered year thereafter with Husband.

In 2006 and each even-numbered year thereafter, the child will spend

Christmas Eve and Christmas Day with the Wife. The parties agree to further

divide equally any school vacation time the child may have surrounding

Christmas Holiday with each party receiving one-half (1/2) the child's

Christmas vacation.

3) Mother's Day! Father's Day. The child will spend Mother's Day with the

Wife and Father's Day with the Husband.

4) Spring Break/Easter. Visitation with the minor child during Spring Break and

Easter will be defined by the school calendar in the minor child's school

district and will be arranged as the parties mutually agree.

5) Summer Vacation. In 2005, Husband is entitled to receive visitation in or out

of state the first week of July uninterrupted with the child provided that the

Husband has exercised his regularly scheduled visitation with the minor child.


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Additionally, Husband shall be entitled to one additional week of

uninterrupted visitation in or out of state with the minor child at such times as

mutually agreed upon by the parties. In 2006 and subsequent summer

vacations, Husband is entitled to receive two weeks uninterrupted visitation in

or out of state with the minor child as the parties mutually agree.

6) Variation in Schedule! Other Time As Agreed. The parties recognize that

they may need to deviate from the schedule herein agreed upon. The parties

intend to be flexible with one another and will try work together to

accommodate the wishes of each other and the child. To vary from the above

schedule the parties must notify one another of desire to make a change and

both parties must agree to the changes. Should the parties be unable to agree

to an alternate arrangement, the parties shall comply with the schedule

detailed above.

14. MINOR CHILD'S WELFARE.

A. Care & Support of Parental Relationship. The parties agree that each party is an

integral part of the minor child's life, and it is in the best interest of the minor child to continue to

have close and frequent contact with both parties. Parties specifically agree that the care and

welfare of the minor child shall be their joint responsibility. Both parties shall at all times

encourage and foster in the child sincere respect and affection for both parents. Neither party

shall attempt, or condone any attempt, to estrange the child from the other party or to injure or

impair the natural love and affection between parent and child. Parties agree that each child shall

have unlimited freedom to communicate with the other parent. In the event of the death of either


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party, the surviving parent will continue to facilitate and foster a relationship between the minor

child and the deceased parent's extended family. Both parties recognize that their respective

contribution to the welfare of the minor child is essential; therefore, parties agree to cooperate

with the other in establishing mutually acceptable guidelines and standards for development,

education, and health.

B. Notification & Contact Information. Each party agrees to provide the other with

an address and phone number where he or she can be reached when the minor child is in their

respective care and custody. Whenever one parent is taking the child out of town, that parent

will notify the other parent in advance and shall provide himJher with a general travel itinerary

and land-line telephone numbers where the child may be reached.

C. Communication Regarding the Child. The parties shall consult together and

attempt to reach a mutual agreement concerning the minor child's education, medical, dental or

psychological treatment, any extracurricular activities, and any other major decisions affecting

the welfare of the child .. The day-to-day decisions involving the minor child shall be the

responsibility of the parent in residence and both parties shall have the ability to authorize

emergency medical treatment for the minor child when warranted and shall promptly notify the

other parent of the emergency.

The Parties agree to regularly discuss the needs and progress of the minor child, and

whenever appropriate, to consider the wishes of the minor child when decisions are made

regarding his time and activities with both parties.

E. Information Regarding the Minor Child. Parties agree to inform the other of any

significant events that occur during the time the minor child is with him or her. Each party shall


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immediately advise the other as to any serious illness or other major development with respect to

the minor child. The parties agree to provide the other with access to any educational or medical

correspondence.

F. Parental Involvement. Both parties are permitted to attend day care, pre-school or

school conferences as desired and to be active in the minor child's events and activities as their

respective schedules permit. Both parties are free to attend the minor child's activities even if

the child is not residing .with the parent at that time.

15. CHILD SUPPORT. Husband is currently unemployed. Wife is currently

employed with Glaxo Smith Kline with an annual salary of$126,000.00. The parties specifically

agree that Husband shall not be required to pay child support for 2005. The parties agree to

reevaluate Husband's child support obligation for 2006. Until such time, the Wife shall be solely

responsible for all work-related child care expenses for the child. In order to accomplish this, the

parties shall exchange W-2's and all other relevant income information prior to December 1,

2005. Thereafter, the parties shall then recalculate the Husband's obligation pursuant to the

North Carolina Child Support Guidelines. The new obligation, if any, shall begin on January 1,

2006.

16. MEDICAL AND DENTAL INSURANCE FOR THE MINOR CHILD. The

Wife agrees to maintain the minor child under the medical, dental and hospitalization coverage

provided through her employer until such time as a recalculation of child support from Husband.

The parties agree that for 2005, Wife shall be responsible for all medical, dental or

hospitalization expenses not covered by insurance. Beginning in 2006, all medical, dental or

hospitalization expenses not covered by insurance shall be paid as recalculated or renegotiated


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by the parties. Each party shall submit copies of medical or dental bills, receipts and! or

cancelled checks to the other party for reimbursement of half the amount expended within thirty

(30) days of payment to the healthcare provider.

17. MEDICAL AND DENTAL INSURANCE FOR THE HUSBAND. The Wife

agrees at her own expense to maintain the Husband under the medical, dental and hospitalization

coverage provided through her employer until the date of the parties' divorce.

18. RECONCILIATION. In the event the Husband and Wife end their separation

by reconciliation and resumption of marital cohabitation, the executory provisions of this

. Agreement shall be thereby canceled and rescinded, but all provisions hereof which have been

executed or partially executed at that time, shall, to the extent of complete or partial

performance, continue in full force and effect unless and until they are canceled or rescinded in a

written agreement duly executed by both Husband and Wife. The parties acknowledge,

however, that the provisions contained above with regard to the division of both real and

personal property shall be deemed fully executed at the time this Agreement is signed by both

parties and shall not be affected by a reconciliation of the parties. The property transferred and

assigned pursuant to the property settlement provisions of this Agreement shall remain the

separate property of the parties as stated herein.

19. DIVORCE OR DISSOLUTION OF MARRIAGE. It is agreed and understood

by the parties that this Agreement is not made for the purpose of facilitating a divorce between

the parties nor is there any agreement that either party shall not defend against any action for

divorce or proceeding for dissolution of the marriage brought by the other party; but this

Agreement is made without prejudice to the right of either party to seek a divorce or dissolution

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of marriage and the provisions hereof shall remain in full force and effect whether or not either

party seeks a divorce or dissolution of marriage at any time hereafter.

20. WAIVER OF CLAIMS. Each party waives and releases to the other any claims

which he/she has or may have against any other person under the law of this State or any other

State for alienation of affection, criminal conversation, or any other type of action which may be

allowed as the result of any relationship between the other spouse and any third person. It is,

therefore, specifically understood and agreed that any third person, against whom such legal

action is brought by either Husband or Wife, may plead this provision, as a third party

beneficiary, in bar of any such claim.

21. INCORPORATION OF AGREEMENT. This Agreement shall, upon

application of either party, be incorporated into a final decree for divorce.

22. REPRESENTATION. Wife has been represented in the preparation of this

Agreement by Paul Brock of Brock & Payne, P.A. Wife understands that by execution of this

Agreement she may be waiving some of her rights; nonetheless Wife has entered into this

Agreement voluntarily. Husband has been represented in the preparation of this Agreement by

Donna A. Davis of Donna Ambler Davis, p.e. Husband understands that by execution of this

Agreement he may be waiving some of his rights; nonetheless Husband has entered into this

Agreement voluntarily.

23. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the

parties, and there are no representations, warranties, covenants or undertakings other than those

expressly set forth herein.


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24. ENFORCEMENT. If either party fails in the due perfonnance of his or her

obligations hereunder, in addition to any other remedy that may be available to him or her at law,

either party shall have the right, at his or her election, to sue for specific perfonnance of this

agreement. The breaching party shall pay the costs of any such legal remedies, including a

reasonable attorney's fee. Nothing herein contained has been construed to restrict or impair

either party's right to exercise this election.

25. 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 all further

instruments that may be reasonably required to give full force and effect to the provisions of this

Agreement.

26. MODIFICATION AND WAIVER. The modification or waiver of any ofthe

provisions of this Agreement shall be effective only if made in writing and executed with the

same fonnality as this Agreement. The failure of either party to insist upon strict perfonnance of

any of the provisions of this Agreement shall not be construed as a waiver of any subsequent

default of the same or similar nature.

27. SITUS. This Agreement shall be construed and governed in accordance with the

laws ofthe State of North Carolina.

28. BINDING EFFECT. Except as otherwise stated herein, all the provisions of this

Agreement shall be binding upon the respective heirs, next of kin, executors and administrators

of the parties.

IN WITNESS WHEREOF, the parties have hereto set their hand and seals in duplicate

originals, each of which shall constitute an original, as of the day and year first above written.


I' 20050622000230500 SEPIA Bk:RB3784 Pg:80

06/22/2005 03:23:44PM 20/24

u; ~~ (SEAL) KJtLLIE COOP, JOHNSON -~


PETER A ORAMES Notary Public, State of New York

NO.010R6118760 Qualified In Rockland County

My Commission Expires Nov 22. 20£1 ~

l • ,. , "

NORTH CAROLINA

DURHAM COUNTY

20050622000230500 SEPIA Bk:RB3784 ps.al

06/22/2005 03:23:44PM 21/24

I, P.et..p(' ])r-qrne; , a Notary Public, do hereby certify that Theodore DeMott Johnson III personally appeared before me this day and acknowledged the due execution of the foregoing Separation and Property Settlement Agreement.

WITNESS my hand and notarial seal, this the ~ day of fila rc"'- ,2005.

My Commission Expires:

f\!ov ;)'J- ;)..608' I

NOTARY PUBLIC

... --PETER A DRAMES ~

Notary Public· State of New York ~ NO.01DR6118760

Qualified In Rockland County ~ MV Commission EXp/f'es Nov 22. 20gi -

I, r ~ A ( ]) ret /1) e S ,a Notary Public, ereby certify that Kellie Coop Johnson personally appeared before me this day acknowledged the due execution of the for ing Separation and Property Settlement ement.

WITNESS my hand and not . seal, this the yof (l\Orc h

PETER A DRAMES Notary Public· State of New

NO.01DR6118760 Qualified in Rockland County

MV Commission Expires Nov 22. 200.r


,2005.

\ ' .., .

NORTH CAROLINA

DURHAM COUNTY

I, KAREN M. WOOD, a Notary Public, do hereby certify that Kellie, I I Johnson personally appeared before me this day and acknowledged the due execution of the foregoing Separation and Property Settlement Agreement.

WITNESS my hand and notarial seal, this the 23RD day of MARCH, 2005.

My Commission Expires:

11110/2009


Joyce H. Pearson Register of Deeds

Orange County North Carolina

State of North Carolina, County of Orange

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06/22/2005 03:23~44PM 23/24

The foregoing certificate(s) of KAREN M. WOOD, NOTARY PUBLIC, PETER A. DRAMES, NOTARY PUBLIC for the Designated Governmental units is/are certified to be correct. See filing certificate herein.

This day June 22,2005.

Joyce H. Pearson, Register of Deeds

BY: ~c~~.~ Deputy I Aiiistaat Register of Deeds

Yellow probate sheet is a vital part of your recorded document. Please retain with original document and submit for recording.

• •

Items remaining in the Garage Sporting Eq~ipmel1t Taxidermy items Husband's mother's china Anything in the attic or storage spaces

SCHEDULE A


Page 24 0/24

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Orange CountyMCCLELLAN

NORTH CAROLINA ORANGE COUNTY

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1111111111111111111111111111111111111111111111111111 20050527000185510 SEPIA Bk:RB37~7 Pg:422

05/27/2005 10:58:34AM 1/16

PROPERTY DIVISION AND' SEPARATION AGREEMENT

This Property Division and Separation Agreement, made and entered into as ofthis 26th day of May, 2005, by and between Diane K. McClellan, the party of the first part, hereinafter called Wife, a resident of Orange County, North Carolina, social security number: --. 1-, and Robert S. McClellan, the party of the second part, hereinafter called Husband, a resident of rIV Orange County, North Carolina, social security number -. ,~Q' .

WITNESSETH: Cl11 Cf., 3::

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shall see fit, as if such parties were sole and unmarried; and to conduct, carry on, and engage in any employment, trade or business as either party may deem fit, ~ll for the separate use and benefit of such party, and all free from any control, restraint, authority or interference, directly or indirectly, by the other, in all respects, as if such parties were sole and unmarried; and further, each party will contract in the future, and be contracted with, independent of the other, and neither party shall be liable for any debts or obligations incurred by the other, nor shall either party contract any debt for which the other shall be liable.

2. NON-MOLESTATION: Neither party shall.molest or bother the other, directly or indirectly, nor compel, nor attempt to compel the other to cohabit or live with her or him in any way whatsoever, nor shall either interfere in any way with the other's right to live at such place or places as she or he shall see fit, or with such other person or persons as she or he shall see fit.

3. RELEASE OF PROPERTY AND ESTATE RIGHTS:

(a) The Wife, for herself, her heirs, executors, administrators, and assigns, hereby releases and relinquishes unto the Husband, his heirs, executots, administrators, and assigns, all right of future support, all right of dower, inheritance, descent and distribution, and right to descent to his Will and any and all other rights arising out of the marriage relationship, except as may be specifically provided hereafter in this Agreement, and to any and all property, interest in property, real, personal, and mixed, now owned or hereafter acquired by Husband, and hereby agrees that Husband may henceforth acquire, hold, manage, alienate, lease and convey his said property without her knowledge, further consent, or joinder, in accordance with the provisions ofN.C.G.S. §39-13.4, just the same as if she had never been married to him, and further, does hereby release, relinquish, and renounce any and all right to administer upon his estate ..

(b) The Husband, for himself, his heirs, executors, administrators, and assigns, hereby releases and relinquishes unto the Wife, her heirs, executors, administrators, and assigns, all right of curtesy, inheritance, descent and distribution, and right to descent to her Will and any and all other rights arising out of the marriage relationship, except as t;nay be specifically provided in this Agreement, and to any and all property or interest in property, real, personal and mixed, now owned or hereafter acquired by Wife, and hereby agrees that Wife may henceforth acquire, hold, manage, alienate, lease and convey said property without his knowledge, further consent, or joinder, in accordance with the provisions ofN.C.G.S. § 39-13.4, just the same as if he had never been married to her, and further, does hereby release, relinquish, and renounce any and all right to administer upon her estate.

(c) It is agreed on the part of each party hereto that in the event of a sale, transfer, or other conveyance of property, real, personal, or mixed, now owned or hereafter acquired by either party, if it should become necessary to guarantee or pass good title thereto, that the other party to this Agreement should be called upon to execute any deed, conveyance, bill of sale, or other legal instrument concerning the dealing in such property, then in such event the other party to this

2

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Agreement agrees to and will sign any instrument or conveyance which may be reasonably required to perfect title in the party to whom it is sought to be conveyed and it is covenanted and agreed between the parties that each of them shall and will, at any time or times hereafter, make, execute and deliver any and all such other and further assurances as either of said parties shall reasonably require for the purpose of giving full effect to this Agreement and to this covenant, so long as no obligation is thereby imposed upon the party whose signature is sought by the other.

(d) This provision shall not apply to any Social Security benefits the parties may have by reason of their marriage to each other.

4. MODIFICATION: This Agreement can be altered, amended or modified by further written agreement duly executed by the parties. Any failure by either party to specifically perform or to enforce performance exactly according to the letter of this Agreement shall not constitute an alteration ofthe Same by way of enlargement, reduction, estoppel or otherwise, unless confirmed in writing by the parties. It is understood that the parties may by mutual agreement make temporary modifications from time to time as conditions require and that this Agreement shall nonetheless be binding upon the:parties as written, except in the event of a material breach.

5. PLACE OF RESIDENCE: Each party shall at all times keep the other informed of his or her place of residence and shall promptly notify the other of any change, giving the address of the new place of residence until the minor child of the parties attains the age of eighteen (18) or graduates from high school, whichever is later.

6. ENTIRE AGREEMENT: This Agreement contains the entire understanding of the parties, and there are no representations, warranties, covenants, or undertakings other than those expressly set forth herein. Either party shall have the right to compel the performance of the provisions of this Agreement by suing for the breach thereof in the courts where jurisdiction of the parties and subje¢t matter exist. In the event either party believes the other to be in default of this Agreement, he or.she shall give the other party notice in writing of such alleged default, and the party given such noticecshall have five (5) days thereafter to cure th~ alleged default. Ifthe alleged default is not cured within the five (5) days, the party claiming such default shall be free to proceed as provided by law.

7. PARTIAL INVALIDITY: If any part or parts ofthis Agreement shall be rendered null and void or of no effect for any reason, all ofthe remaining parts of this Agreement, whether the same shall be cOij:sidered executed or executory, shall remain in full force and effect and shall be binding upon the parties hereto and the same shall not be considered to be revoked, amended or invalidated.

8. BINDING EFFECT: The parties hereto agree that this Agreement shall be binding upon the parties and their respective heirs, executors, administrators, successors and assigns.

3

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physical custody ofthe minor child for Easter from 6:00 PM ttle evening school closes for the Easter holiday until 8:00PM on Sunday, Easter Day. In every even-numbered year, the Wife shall have the physical custody ofthe minor child for Easter from 6:00 PM the evening school closes for the Easter holiday unti18:00PM on Sunday, Easter Day.

(C) Spring Break: In every odd-numbered year, the Husband shall have the physical custody of the minor child for the child's Spring. Break from school beginning at 6:00 PM the evening school closes for Spring Break until 8:00 PM the evening before school classes resume at the end of the Spring' Break. In every even-numbered year, the Wife shall have the physical custody of the minor child for the child's Spring Break from school beginning at 6:00 PM the evening before school closes for Spring Break until 8:00 PM the evening school classes resume at the end of the Spring Break.

(D) Thanksgiving: In every odd-numbered year, the Husband shall have the physical custody ofthe minor child for the Thanksgiving holiday from 6:00 PM the Wednesday before Thanksgiv.ing through 8:00 PM the Sunday immediately following Thanksgiving. In every even-numbered year, the Wife shall have the physical custody of the minor child for the Thanksgiving holiday from 8:00 PM the Wednesday before Thanksgiving through 6:00 PM the Sunday immediately following Thanksgiving

(E) Mother's Day/Father's Day: The minor child shall be with the honored parent from 9:00 AM to 8:00 PM on Mother's Day and Father's Day every year.

(iv) Summer Vacation: Notwithstanding the regular weekend and weekday physical custodial schedule, the parties each shall be entitled to one uninterrupted fourteen (14) day period or two (2)tminterrupted, non-consecutive seven (7) day periods, whichever each party shall select, with the minor child each summer vacation from school. The parties shall each select his or her vacation period by exchanging desired weeks with each other in writing on or before March 15th

of every year (May 15th of2005 because of the timing of the signing of this Agreement). In the event there is a conflict in the parties' selections for the period(s) of vacation and the parties cannot mutually agree fot one party to select another vacation period, the Husband shall select his vacation period( s) in even-numbered years and the Wife shall select her vacation period( s) in odd-numbered years. All vacation periods must begin on the first day ofthe vacationing party's regularly scheduled weekend with the minor child unless otherwise mutually agreed between the parties in writing. The parties may not extend the fourteen-day or the seven-day periods by attaching them to their regularly scheduled weekday, weekend or holiday time with the child. Following the end of the vacation period, the regular weekend and weekday physical custodial schedule set forth above shall resume without interruption. The resumption of this schedule without interruption may result in a party having time with the minor child in excess ofthe time set forth in paragraphs 9(a)(i) and 9 (a)(ii), but in an effort to create an atmosphere of predictability for the minor child and the parties, it is best not to alter the regular weekend and weekday physical custodial schedule.

5

,-' - ,---- - --- -----~ ---- - ---~--- ----,- ----------

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(b) Visitation Transportation: Unless otherwise mutually agreed between the parties, the Husband shall be solely responsible for transporting the minor child to and from the Wife's home for all of his physical custodial time outlined in paragraph 9(a) above.

(c) Child Support:

(i) Financial Support: Beginning on the day the Husband vacates the marital residence pursuant to this Agreement and continuing on the first (1 st) day of each and every month thereafter, the Husband shall pay the sum of Eight Hundred and Thirty-Three dollars ($833) per month to be utilized for the support and maintenance of the minor child. Additionally, the parties shall share in proportion to their current incomes (31.5% by Wife and 68.5% by Husband) all mutually agreed upon summer camp expenses due from the signing ofthis Agreement forward for the minor child; neither party shall unreasonably withhold his or her agreement for summer camps. In negotiating the amount of child support, the parties have taken into account the estates and income of the parties and the needs of the minor child. At the present time, the Husband is employed full-time at ATC/V ANCOM Inc. as a manager, with gross earnings of approximately Eighty-Three Thousand, Three Hundred and Ninety dollars ($83,390) per year and the Wife is employed full-time at the Town of Chapel Hill as a payroll supervisor, with gross earnings of approximately Thirty-Eight Thousand, Three Hundred and Thirty-Six dollars ($38,336) per year. The work-related child care expenses for the ITlinor child, exclusive of summer camps, are approximately Sixty-Six dollars ($66) per month and the major medical and health insurance premium for the minor child is approximately One Hundred Twelve dollars ($112) per month. The Husband's obligation to provide this monthly support shall teI'll):inate when the minor child attains the age of 18 except:

-If the child is otherwise emancipated, payments shall terminate at that time; -lfthe child is still in primary or secondary school when the child attains age

18, support payments shall continue until the child graduates, otherwise ceases to attend school on a regular basis, or at~ains age 20, whichever comes first, unless a court of competent jurisdiction in its discretion orders that payments cease at age 18 or prior to high school graduation; or

-If the child is mentally or physically incapable of self-support upon attaining the age of 18, support payments. shall continue until the chjld attains the age of 20 or becomes capable of self-support, whichever first occurs.

(ii) Health Care, Major Medical and Dental Insurance: The Husband shall continue to maint~in health care, major medical and dental insurance on behalf ofthe minor child as long as his child support obligation set forth in paragraph 9(c)(i) above continues and as long as it remains reasonably affordable through his place of employment. All un-reimbursed medical expenses, including all deductibles, incurred on behalf ofthe minor child shall be paid by the parties equally, to wit: 50% by the Husband and 50% by the Wife-. For the purposes of this paragraph "medical expenses" shall include health care, medical care, eye care, dental care (including orthodontia) and mental health care (including therapy and evaluation).

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Promptly following the signing of this Agreement by both parties, the Husband shall provide the Wife with an insurance identification card, insurance booklet, and claim forms. Either party presenting the minor child for medical or dental treatment shall promptly thereafter provide to the other party a copy ofthe statement for such service, including a description of the services rendered, and shall also file a claim for insurance where applicable. The other party shall reimburse the first party for his or her share ofthe medical expenses within five (5) days ofthe service by the medical provider. Upon receiving an explanation of benefits or other information from the insurance carrier pertaining to any claim, that party shall promptly provide a copy of same to the other party., All insurance proceeds based upon a claim for services rendered to the minor child shall be paid over promptly to the medical provider or, ifthe medical provider has been paid, to reimburse the party or parties (in proportions paid) who had previously paid the medical provider.

(iii) Life Insurance: Unless otherwise mutually agreed in a notarized writing between the parties, each party shall maintain for the benefit of the child of the marriage a life insurance policy in the amount of at least Two Hundred and Fifty Thousand dollars ($250,000). The beneficiary of the policy shall be the other party as trustee for the minor child. Said policy is to be kept in effect until such time as the minor child attains the age of 18 or graduates from high school, whichever is later" or the age of twenty-two (22) ifthe child is enrolled in an educational facility as a full-time student,after which time each party's obligation under this paragraph shall cease and terminate. Either party as Trustee shall be able to utilize the proceeds of said insurance policy for any day-to-day expenses incurred for the minor child, for all her basic necessities (food, clothing and shelter) and for any additional expenses the Trustee deems in the best interest of the minor child, including but not limited to: education, transportation, and cultural and extra-curricular activities.

(d) Telephonic and E~Mail Communication: Beginning immediately, the non-physical custodian shall have the right to telephone andlor contact the minor child at the physical custodian's home on a regular basis. All telephone communication shall take place at reasonable hours, taking into consideration the age, school schedule and other activities of the minor child. If either party takes the minor child to stay overnight at a place other than his or her home, that party shall notify the other party and shall telephone the other party during such time period to enable the non-physical custodian to speak to the minor child via telephone.

Nothing in this Agreement requires either party to provide at his or her expense, computer and e-mail access to the child. If one party wants e-mail access to the minor child and such e-mail access is not already available to the minor child, the party wanting such e-mail access may at his or her own expense provide for the child the tools necessary and the other party shall not in any way thwart the child from utilizing the same with her parents. All telephone and e-mail communication between the minor child and each party shall be unsupervised and private.

(e) Concerning the Child's Welfare Further:

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(i) . The parties shall cooperate effectively and consistently with each other toward the best interest of the child.

(ii) The parties shall share joint decision-making regarding major decisions for the child's education, health care, religious training and general welfare. The parties shall enter into discussions regarding major decisions for the child in good faith and shall make every effort to reach a mutual decision for the child's best interests.

(iii) When the child is in the physical custody of either party, that party shall have the right to make and shall have the responsibility for making the minor, day-to-day and routine-type decisions in connection with the child. Both parties shall keep the child in a clean, wholesome and appropriate environment at all times when in his or her care, free from the use of illegal drugs, excessive use of prescription drugs, excessive use of alcohol or from any condition hazardous to the welfare of the child.

(iv) Neither party shall schedule extracurricular activities for the minor child or commit the minor child to participate in extracurricular activities during the other party's period of physical custody without the prior, written consent of the other party. Further, unless otherwise mutually agreed in writing, except for "show-like" events (i.e. soccer games, recitals, plays, etc.), the routine activities (i.e. soccer practice, music lessons, etc.) ofthe minor child shall be attended only by the physical custodial parent. All "show-like" events (i.e. soccer games, recitals, plays, etc.) may be attended by either or both of the parties, each party deciding in his or her discretion as to whether he or she shall attend.

(v). The parties shall timely advise each other of the child's grades, progress in school, health andwelfare. Each party shall be given direct access to the child's medical, dental and school records and reports and each party shall be responsible to obtain copies of such records and reports on his or her own accord. Further, both parties may attend "show-like" events at school. If the minor child is not required by the school to participate in the school event, however, the physical custodian on the day of the event shall decide whether the minor child will attend such an event.

(vi) Each party shall have direct access to the child's doctors, dentists, teachers and any other individual directly related to the well-being ofthe thinor child and, except for the parties having to notify e;ach other of the minor child's medical care providers and enrollment in school, each party shall be responsible to contact on his or her own initiative any individual directly related to the well-being ()f the minor child.

(vii) Both parties shall keep the other informed of the health of the minor child. The parties shall promptly inform the other party of any serIous illness andlor injury to the child which requires mc:;~ical attention .. Both parties shall provide e.ach other with any medications which the child is taking.at the time ofthe transfer of the child. Both parties shall provide each other with sufficient information to allow the other party to obtain refills of that medication.

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for any liabilities thereon, indemnifying and holding the Wife harmless for any claims therefore. The Wife shall immediately sign any documentation presented to her that may be necessary to transfer the title of said vehicle into the Husband's sole name.

(c)· CASH AND INVESTMENT ACCOUNTS. The Husband and Wife shall each retain as his or her separate property any and all checking accounts, savings accounts, money market funds and any other non-retirement investment funds currently maintained in his or her individual name or for his or her individual benefit. Neither'party now has, nor in the future shall have, any claim to' such property in the possession of or maintained for the benefit of the other party.

I

(d) PENSION. RETIREMENT AND IRA ACCOUNTS. The Husband shall retain as his sole and separate property the two Roth IRAs maintained at MFS. The Wife shall sign any documentation presented by the Husband to transfer these funds into his name. Except for these two Roth IRAs, the Husband and Wife shall each receive one-half of all retirement funds acquired during their marriage (from date of marriage to the date of separation), plus or minus any passive growth or loss thereon from the date of separation until the date of distribution. Presently the marital retirement funds are held on behalf of the Wife with Prudeptial and the NC Local Government Retirement System and on behalf of the Husband with Financial Network, New York Life, ATC Deferred Compen~ation and Sup Retire and the N.C. Local Government Retirement System. As soon as possible after the signing of this Agreement, the Husband and Wife shall meet with their financial advisor to determine the most practical way to make this division. In the event the parties cannot agree how to equally divide all the marital retirement funds, each and every marital retirement fund shall be equally divided by a Qualified Domestic Relations Order prepared by the Wife's attorney. Any legal fees incurred by the Wife to divide the marital retirement funds shall be paid by the parties in equal shares. Within five (5) days of the. Wife providing the Husband with documentation for such expenses, the Husband shall reimburse the Wife for his one-half share of such expenses.

(e) PERSONAL PROPERTY. The Husband and Wife shall work together to equally divide all ofthe marital personal property. Ifthe parties are unable to agree on the division of the personal property, they will first attempt to reasonable the division by mediation. Ifmediation fails, then the parties will submit this issue to binding arbitration. In the event the personal property division is not resolved or in mediation or arbitration wilhin 60 days of the signing of this Agreement, each party shall retain as his or her sole and separate property all personal property in his or her possession or maintained by a third party for his or her benefit.

(t) j ALL OTHER PROPERTY. The parties have heretofore equitably divided any and all property acquired by them, or either of them, during the marriage. Neither party now has, nor in the future shall have, any claim to any such property in the possession of, or maintained for the benefit of, the other party. Both parties hereby and forever w

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12. DEBTS: Except for the debts secured by the marital residence and the vehicles, all of which are addressed above, there are no marital debts of the parties (because the Husband has paid from his recently received bonus the full downpayment required for Lindsi's braces and the parties' 2004 tax obligations). From the signing of the Agreement forward, the Husband and Wife shall establish his or her own separate debt accounts. Neither party shall hereafter charge, or cause, or permit to be charged to or against the other, any purchase which either he or she may hereafter make, and shall not hereafter create any engagement or obligations in the name of or against the other party and shall never hereafter secure or attempt to secure any credit upon or in connection with the other party or in his or her name; and each of them will promptly pay all debts and discharge all financial obligations which he or she may incur for himself or herself and will hereafter hold the other party free and harmless and indemnifY the other party from any and all subsequent debts, obligations or liabilities which each may incur or sustain.

13. TAX FREE EXCHANGE: The parties believe and agree that the division of property heretofore made by this Agreement is a nontaxable division of property between co-owners under § 1 041 of the Internal Revenue Code of 1986 and successive provisions rather than a taxable sale or exchange of property. Each party covenants not to take any position with respect to the adjusted basis ofthe property assigned to him or her which is inconsistent with this provision in his or her federal or state tax return.

14. INCOME TAXES: Beginning in the tax year 2005, the parties herein shall file separate and individual income tax returns. Further, the Wife shall receive all tax exemptions, credits and benefits available under the Internal Revenue Code pertaining to the child of the marriage, unless the Husband elects to pay to the Wife the sum she would lose if she gave the exemptions, credits and tax benefits to the Husband. If the Husband makes such an election, the Husband shall pay to the Wife the sum she is due at the time the Wife signs the necessary forms to release such exemptions, credits or tax benefits.

Alternatively, the parties may elect to file joint federal and state income tax returns for any taxable period in which they mutually agree to do so and in which it is legal to do so under the Internal Revenue Code and appliCable state law. In the event that the parties elect to file joint tax returns, the partie~ shall furnish such information and assistance to each other as is required for the accurate completion of such returns, and both ofthe parties shall execute such returns. The Husband and Wife shall each compute his or her own federal and state income tax liability using his or her own wages and other profits, earnings and other items of income for the tax year involved, taking into account the deductions and exemptions attributable to him or her, and using the appropriate tax rate. . The Husband and Wife shall each become liable for a percentage of the federal and state income tax liabilities shown on the joint returns, computed py respectively comparing his or her individual federal and state income tax liabilities as if filing separately to the sum of Husband's and Wife's federal and state income tax liabilities if they file jointly. The parties shall share any refund

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or responsibility for any deficiency computed in accordance with the formula hereinabove set out, crediting to each the amount withheld from his or her earnings and the amount of estimated tax paid by each, if any. Any refunds from prior year returns applied to taxes for the current year shall be allocated and credited in accordance with the formula hereinabove set forth. The obligations of the parties for the payr;nent of additional assessments, interest or back taxes, with respect to all j oint tax returns filed in the future, shall be determined in accordance with the formula hereinabove set out; provided, however, that neither party shall be liable for any taxes, penalties or interest relating to the income, deductions or omissions of the other party, and each party hereby indemnifies and holds harmless the otherparty for any such assessment or other exp~nses incurred in connection with such assessment.

15. ADDITIONAL INSTRUMENTS: Each ofthe parties shall from time to time, atthe request ofthe other, execute, acknowledge and deliver to the other party any further instrument that may be reasonably required to give full force and effect to the provisions ofthis Agreement.

16. PERMANENT ALIMONY: Each party hereby acknowledges that the Wife is dependent upon orin need of maintenance and support from the Husband and that the Husabnd is the supporting spouse. Beginning on the day the Husband vacates the marital residence, and continuing on the first of each and every month thereafter, the Husband shall pay to the Wife the sum of Five Hundred and Fifty dollars ($550) per month as permanent alimony. This alimony shall be income to the Wife and deductible to the Husband for tax purposes. The Husband's obligation to pay this alimony to the Wife shall terminate at the sooner of:

- the death of the Husband or the death oftheWife; - the remarriage of the Wife or the Wife's "cohabitation" as that term is defined by

North Carolina law; -December 31, 2012 (seven years and eight months from the signing of this

Agreement).

The Husband's obligation for this permanent alimony shall be non-modifiable by any Court.

17. INTEGRATION: All ofthe provisions contained in paragraphs 10 through 16 are inseparable from ,each other and . are mutually dependent uppn each other and each paragraph is respectively given as a reciprocal consideration for all ofthe other paragraphs. It is the intent ofthe parties that these numbered paragraphs be integrated with each other and not be modifiable by any court. Excepting only these paragraphs specifically designated as being integrated, all of the remaining paragraphs of this Agreement are independent and completely separable, and if any of these non-integrated and separable provisions is held to be invalid or unenforceable, or is subsequently modified, then all of the remaining independent and separable provision of the Agreement shall, nevertheless, continue in full force and effect.

18. RECONCILIATION: In the event the Husband and Wife end their separation by

12

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reconciliation and resumption of rna rita 1 cohabitation, the ex~cutory provisions of this Agreement shall be thereby canceled and rescinded, but all provisions hereof which have been executed or partially executed;at that time, shall, to the extent of complete perfonnance, continue in full force and effect unless apd until they are canceled or rescinded in a written agreement duly signed by both Husband and Wife in the same fonnality as this Agreement.

19. SUBSEQUENT DIVORCE: This Agreement is unconditional and shall survive any subsequent divorce decree obtained by either party, and no such decree shall terminate, modify or otherwise affect the rights and obligations provided for, herein. This Agreement shall be incorporated into any divorce decree obtained by either party.

20. VOLUNTARY EXECUTION: Each party acknowledges that this Agreement is entered into of his or her own free will and volition and that no coercion, force, pressure or undue influence has been used against him or her, either by the other party hereto or by any other person or persons in the execution of this Agreement. Neither party has relied upon any representation or promise in making this Agreement except those expressly set forth herein.

21. WAIVER OF GRIEVANCES: Any conduct on the part of either party occurring prior to the executjon ofthis Agreement which may have constituted a basis for any legal claim by either party against the other party is hereby waived and released and will not be used by either party against the other party in any future proceeding between them.

22. JURISDICTION: Each party hereby submits herself or himselfto the jurisdiction of the courts of the State of North C;:trolina in any future action prought by either party to enforce the provisions of this Agreement.

23. SITUS: All matters affecting the interpretation ofthis Agreement and the rights of the parties hereto in relation to this Agreement shall be governed and controlled by the laws ofthe State of North Carolina.

24. ENFORCEMENT OF AGREEMENT: In the event either party is in any way in breach ofthis Agreement, said party shall be given written nGtice ofthe breach and shall have five (5) days to comply with the terms of this Agreement. In the eventsaid party fails to comply, the other party shall be free to take all action necessary to enforce this Agreement, including but not limited to taking court action. In such event, the noncomplying party shall be responsible for all costs and expenses incurred to enforce this Agreement, including but not limited to 10% interest on any sums due, reasonable attorneys' fees, court costs and loss of income.

Further, each party stipulates and acknowledges that he or she has had ample opportunity to participate in the drafting of this Agreement. 'In this regard, in the event a court of competent jurisdiction determines that there is an ambiguity in this Agreement, such ambiguity shall not be decided in one party's favor because the other party's attorney drafted this Agreement.

13

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.

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25. RECORDATION OF AGREEMENT: This Agreement shall be recorded within ten (10) days of the signing of this Agreement.

26. LEGAL REPRESENTATION: The parties to this Agreement agree and stipulate that Donna Ambler Davis of Donna Ambler Davis, P.C. of Chapel Hill, North Carolina, represents the Wife, the Husband has agreed and elected to proceed with the negotiations and execution ofthis Agreement without counsel. The Husband agrees and stipula\es that it would be in his best interests to have and obtain separate counsel, however, he has freely and voluntarily decided and elected not to retain separate and individual counsel, but rather to proceed without same. The Husband further agrees and acknowledges at this time that Donna Ambler Davis has provided him with no legal advice and that he understands the contents ofthis paragraph fully. In this regard, each party has had sufficient opportunity to discuss the terms ofthis Agreement with his or her respective counsel prior to its execution. Further, the parties agree and understand that Donna Ambler Davis is not a tax specialist nor is she a Certified Public Accountant and, therefore, each party should seek the advice of tax professionals with regard to the tax consequences of this Agreement.

IN WITNESS WHEREOF, the parties hereunto have set their hands and seals the day and year first above set forth, in triplicate originals, containing this and the thirteen (13) preceding pages, one original copy ofthis contract of separation being retained by each ofthe parties hereto/and one being retained by Donna Ambler Davis, P.C.

i lllJlL.

:::f :E

NORTH CAROLINA .f\laNlIDC£) COUNTY

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05/27/2005 10:58~34AM 15/16

. I, ~~~ U, Notary Public for said County and State, do hereby certiJY that Diane K.· cClellan did person~lly appear before me this day and acknowledged the due execution of the foregoing instrument.

Witness my hand and official seal this the ~ day o~ ~, 2005.

NORTH CAROLINA ~Arr4X\(i < COUNTY

I,M.l\..\t~·tt(l~ Notary Public for said County and State, do hereby certify that Robert S. McClellan did personally appear before me this day and acknowledged the due execution of the foregoing instrument.

Witness my hand and official seal this the~day o~ ~ 2005. ~~,\\\\\\C;ri~~ ~- ~ ~~''''''l.II~~'

15

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\OO~ r _~~'~O"f:f1~OTARY'2\

Joyce H. Pearson Register of Deeds

Orange County North Carolina

State of North Carolina, County of Orange

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05/27/2005 10:58:34AM 16/16

The foregoing certificate(s) of CALLIE MCDADE HILL, NOTARY PUBLIC for the Designated Governmental units is/are certified to be correct. See filing certificate herein.

This day May 27,2005.

Joyce H. Pearson, Register of Deeds

BY:a~ Deputy / .. tWistmt Register of Deeds

Yellow probate sheet is a vital part of your recorded document. Please retain with original document and submit for recording.

Orange CountyMORECRAFT

1111111111111111111111111111111111111111111111111111 20060509000056400 SEP 1 A

Bk:RB4024 Pg:282 05/09/2006 11: 55: 11AM 1/22

FILED Joyce H. Pearson

:~Pc~

Prepared by:Susan H. Lewis

~~l'!~!~~'IIUIIIIIIIIIIIIU~UIII flllUI FOR R~TfTT~A[IO~o~;g~r~~R OF DEEDS

DURHAM COUNTY, NC

2005 NOV 18 01 :49:42 PM BK: 5024 PG: 358-379 FEE: $74.00

m~rR~Mt~r ~ L~~b~bb~~b

Return to: Wm. Griffin Graves, III, 1414 Raleigh Road, Suite 320, NORTH CAROLINA Chapel Hi 11, NC 7.7517

ORANGE COUNTY

SEPARATION AGREEMENT

/' AND PROPERTY SETTLEMENT

. q 1 ~t:\', 4 ( - 3\.( b L ~5 f'+-THIS AGREEMENT, entered into this ~ day of November, 2005,

between ANDREW JAMES MORECRAFT ("Husband"), whose address is 112

Deerwood Court, Chapel Hill, North Carolina, 27514 (the "Residence"), and

PATRICIA BIENVENU MORECRAFT ("Wife"), whose address is 4100 Five

Oaks #32, Durham, North Carolina, 27707.

WIT N E SSE T H:

The parties were lawfully married in Barbados, British West Indies

on the 12th day of August, 1985.

There has been issue of the marriage, namely, TODD RICHARD

MORECRAFT, born November 4, 1988 ("the Older Son"); KATY ALLYSON

MORECRAFT, born July 31, 1990 ("the Daughter"); and JAMES ANDREW

MORECRAFT, born June 7, 1996 ("the Younger Son"), (referred to herein

collectively as the "Children").

The parties separated on date of this Agreement. The parties wish

to continue living apart and therefore they desire to settle their respective

support and property rights and agree on terms for the custody, support,

maintenance, and education of the Children.

NOW THEREFORE, in consideration of the premises and the mutual

promises and undertakings hereinafter set forth, and other good and valu-

able consideration, the parties agree as follows:

Morecraft: Separation Agreement and Property Settlement

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LIVING SEPARATE AND APART

2

1. Separation. The parties shall continue to live separate and apart in the

future, free from interference by each other.

2. No Interference. The parties shall not molest or interfere with each

other, nor shall either of them compel or attempt to compel the other to

cohabit or dwell with him or her, by any means whatsoever.

PROPERTY SETTLEMENT

3. Personal Property. The parties hereby make the following disposition of

their personal property.

3.1. Household Effects. The parties have divided between

themselves to their mutual satisfaction all household effects.

3.2. Automobiles. The parties own the following automobiles: (1) a

2002 Toyota Highlander (the "Highlander"); (2) a 2004 Toyota Sienna (the

"Sienna"); (3) and a 1995 Nissan Maxima (the "Nissan"); title to each of

which is in the Husband's name only.

Simultaneously with signing this Agreement, the Husband will

transfer the title of the Sienna to the Wife.

The Wife hereby releases any claim or right she may have to the

Highlander and the Nissan and agrees that the Highlander and the Nissan

shall be the Husband's sole and separate property from and after the date

this Agreement is signed by both parties.

The Husband hereby releases any claim or right he may have to the

Sienna and agrees that the Sienna shall be the Wife's sole and separate

property from and after the date this Agreement is signed by both parties.

-- -- ---~--~-----------


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3

3.3. Bank Accounts. Each party acknowledges that there are no

checking or savings accounts in their joint name in any bank anywhere.

Each party hereby waives any right, title or interest he or she may have or

claim to any savings or checking account which the other party in his or her

sole name, or with any other person jointly, has had or may have in the

future in any bank anywhere.

3.4. Investment Accounts. The parties own in the Husband's name

a stock portfolio containing the stocks listed on Schedule A ("the Schedule

A Stocks")' having an agreed-upon fair market value of FIFTEEN THOU-

SAND and NO/ 100 DOLLARS ($15,000.00) as of the date hereof. The

parties agree to sell SEVEN THOUSAND FIVE HUNDRED DOLLARS' ($7,500)

worth of the Schedule A Stocks and to distribute such SEVEN THOUSAND

FIVE HUNDRED DOLLARS ($7,500) to the Wife on or before November 18,

2005. All Schedule A Stocks remaining in the Husband's name shall be his

sole and separate property, free of any claim by the Wife.

3.5. The Husband's 401{k). The Husband is the owner of certain

vested rights under a defined contribution plan with URS Corporation,

namely the URS Corporation 401(k} Plan (the "Husband's 401(k) Plan"}. The

parties acknowledge that the Husband's rights under the Husband's 401 (k)

Plan are marital property within the meaning of the North Carolina

Equitable Distribution Act, N.C.G.S. Section 50-20, as amended. The

parties agree that the value of the Husband's 401(k) Plan as of October 26,

2005, .

without regard to any

account reduction caused by loans or withdrawals taken by the Husband

from the Plan. As part of the division of marital property between the

parties, the parties agree to execute the Domestic Relations Order attached


- -------------------------------------

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4

hereto as Exhibit A, distributing one-half the value of the Husband's 401 (k)

Plan as of the date of separation. In exchange for the Husband's agreement

to execute the attached Exhibit A, the Wife agrees to waive any and all

claim or right she may have now or become entitled to in the future to the

portion of the Husband's 401(k) Plan not assigned to her in the attached

Exhibit A. Each party agrees to execute any and all further documents and

waivers which may be necessary to give full force and effect to this

Paragraph 3.5.

3.6. Roth Retirement Accounts. Each party owns in his or her

separate name Roth individual retirement accounts with Ameritrade ("IRA"),

each Roth IRA having an approximate value of THREE THOUSAND DOL-

LARS ($3,000). Each party hereby waives all his or her right, title and

interest in and to the other party's Roth IRA, absolutely and forever.

3.7. The Husband's Stock Options. The Husband owns the URS

stock options listed on Schedule B attached hereto ("the Stock Options").

The parties agree that the Husband will provide the Wife with complete

information concerning the Stock Options, including the maturity date of

each option, and the option prices of each option on Schedule B. The

. parties have already exercised Items 1 and 2 on Schedule B. As to Items 3

and 4, the Wife shall have the right to request in writing that the Husband

exercise such options when they mature to the extent of fifty percent (50%)

of the shares represented therein. Upon receipt of the Wife's request that

he exercise a Stock Option, the Husband shall promptly take all steps nec-

essary to exercise it, to the extent of the number of shares requested by the

Wife (not to exceed fifty percent). Upon receipt of any proceeds from such

exercise of the Option, the Husband shall forward such proceeds to the

Wife, after first deducting therefrom any (i) transfer fees incurred as a result

--------------------------------- ----- ---- ------------------------ -_ .. - ----- ----


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5

of the exercise of such Stock Option and (ii) any capital gains taxes attrib-

utable to the exercise of such Stock Option at the Wife's behest (such capi-

tal gains taxes to be calculated by a CPA acceptable to both parties and half

of whose fee each party shall pay). The Husband understands that any sale

of stock resulting from the Wife's request to exercise a Stock Option shall be

reportable on the Husband's tax return and he shall be responsible for pay-

ing the taxes thereon.

3.8. The Wife's North Carolina State Employees' Retirement

Account. The Wife owns in her name a North Carolina State Employees'

Retirement Account. However, the Wife is not vested in said retirement

account and it is of nominal value. The Husband hereby releases all his

right, title and interest in the Wife's North Carolina State Employees'

Account, absolutely and forever.

3.9. The Husband's Bonus. The Husband may receive from his

employer a bonus attributable to his work during 2005 (lithe Husband's

Bonus"). The parties acknowledge that the Husband's Bonus, if any, is

marital property and that the wife is entitled to a distribution of one-half

the after-tax value thereof. Accordingly, the Husband agrees that if and

when he receives a bonus for 2005 from his employer, he will notify the

Wife thereof and will distribute one-half thereof to the Wife, after deducting

all federal and state income taxes attributable thereto.

3.10. General Release of Claims Against Personal Property. Except

as provided herein specifically to the contrary, each of the parties shall

own, have and enj oy , independently of any claim or right of the other party,

all items of personal property belonging to him or her and now in his or her

possession, or which may hereafter belong or come to him or her, with full

"


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6

power to him or her to dispose of the same, as fully and effectually

JOHNSON - Rosen...2[ ~ fJ·% PREPARED BY:P1\.UL BROCKOP-SROCk & PAYNE, P.A • . ,:RETURN TO:...

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