FILED
Nov 15 2017, 7:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Peter J. Rusthoven Andrew Z. Soshnick
Christopher J. Bayh Teresa A. Griffin
Barnes & Thornburg LLP Faegre Baker Daniels LLP
Indianapolis, Indiana Indianapolis, Indiana
Holly J. Wanzer
Wanzer Edwards PC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
George A. Buskirk, November 15, 2017
Appellant-Respondent, Court of Appeals Case No.
06A01-1610-DR-2296
v. Appeal from the Boone Circuit
Court
Maureen Buskirk, The Honorable J. Jeffrey Edens,
Appellee-Petitioner. Judge
Trial Court Cause No.
06C01-1603-DR-182
Brown, Judge.
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[1] George A. Buskirk (“Husband”) appeals the trial court’s order finding a
postnuptial agreement unenforceable and ordering that he pay Maureen
Buskirk (“Wife”) maintenance and her attorney fees. He raises two issues
which we revise and restate as whether the trial court erred in entering
summary judgment in favor of Wife. We reverse.
Facts and Procedural History
[2] On December 30, 1972, Husband and Wife were married, and on June 1, 1976,
they entered into a postnuptial agreement (the “Agreement”). The Agreement
provided in part:
Whereas, said Husband and Wife have been married for several
years and have been and are now living together as husband and
wife; and
Whereas, in order to better effect harmonious domestic
tranquility Husband and Wife desire to resolve their respective
rights in the estates of the other during the lifetime of the parties
hereto and have reached an agreement concerning the respective
rights that each party claims in the property of the other. Now
Therefore, the parties agree as follows:
1. That both Husband and Wife have made to each other a full
disclosure of the nature and extent of the estate of the other and
of the expectancies of each in the estate of the other and that both
Husband and Wife, in light of such disclosures to each other
have entered into this agreement.
2. That the consideration upon which this agreement is based
consists, among other things, (A) the continued and expected
continuance of the marriage between Husband and Wife, and
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that neither party contemplates a dissolution of the marriage at
any time, (B) the mutual waivers and releases of the parties
which might or could devolve upon them in the event an action
for divorce were filed by either party culminating in divorce and
a Court of Law to make distribution of the rights of the parties.
3. In consideration of the mutual promises of the parties,
Husband does hereby relinquish, waive and release all right and
interest, statutory or otherwise, including, but not limited to,
dower, widow’s allowance, statutory allowance, distribution in
intestacy and right of election to take against the will of said Wife
which he might otherwise acquire or possess as the widow, heir-
at-law, next of kin, or distributee of said Wife including but not
limited to:
a) any property owned by said Wife at the time of the marriage
or acquired by her at any time thereafter.
b) any property in her estate upon her death, under the laws of
any jurisdiction which may be applicable.
c) one-half of all furnishings and household goods acquired by
Husband and Wife during their marriage, and not specifically the
designated personal property of said Wife.
d) any income, savings, stocks, bonds, life insurance or other
investments acquired by said Wife prior to marriage or at any
time thereafter or in the future.
e) any inheritance received by said Wife at any time, from any
source, now or in the future.
f) any real estate now owned by said wife or hereafter acquired
including but not limited to . . . .
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4. In consideration of the mutual promises of the parties, Wife
does hereby relinquish, waive and release all right and interest,
statutory or otherwise, including, but not limited to, dower,
widow’s allowance, statutory allowance, distribution in intestacy
and right of election to take against the will of said Husband
which she might otherwise acquire or possess as the widow, heir-
at-law, next of kind, or distributee of said Husband including but
not limited to:
a) any property owned by said Husband at the time of the
marriage or acquired by him at any time thereafter.
b) any property in his estate upon his death, under the laws of
any jurisdiction which may be applicable.[1]
c) one-half of all furnishings and household goods acquired by
Husband and Wife during their marriage, and not specifically the
designated personal property of said Husband.
d) any income, savings, stocks, bonds, life insurance or other
investments acquired by said Husband prior to marriage or at any
time thereafter or in the future.
e) any inheritance received by said Husband at any time, from
any source, now or in the future.
f) any real estate now owned by said Husband or hereafter
acquired including but not limited to . . . .
1
The Agreement contained some text that was crossed out and appears to duplicate the remaining text in the
document.
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5) Husband and Wife shall have the absolute right to manage,
dispose of, or otherwise deal with any property now separately
owned, or hereafter separately acquired, in any manner
whatsoever, and may enjoy and dispose of such property in the
same manner as if the marriage had not taken place.
6) Notwithstanding the provisions of this Agreement, either
party shall have the right to transfer or convey to the other any
property or interest therein which may be lawfully conveyed or
transferred during his or her lifetime or by Will or otherwise
upon death, and neither party intends by this Agreement to limit
or restrict in any way the right and power to receive any such
transfer or conveyance from the other.
Appellee’s Appendix Volume II at 6-9.
[3] On March 16, 2015, Wife filed a verified petition for dissolution of marriage
and requested a division of property, maintenance, and attorney fees. On April
15, 2016, Husband filed a motion to enforce the Agreement. On May 23, 2016,
Wife filed a motion for summary judgment. On June 24, 2016, Husband
designated his affidavit as evidence in which he stated in part:
3. I am a law school graduate. In 1976, I was not practicing law.
I was working as a trust officer in a bank.
4. Mrs. Buskirk is a college graduate from Purdue University
with a Bachelor’s Degree in Home Economics and a Master’s
Degree in Consumer Finance. In 1976, she was working as a
school teacher.
5. In 1976, Mrs. Buskirk and I applied for a construction loan to
build a house on a vacant lot I owned in Boone County, Indiana.
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6. Our application for a construction loan was denied because
our application failed to disclose that Mrs. Buskirk had pledged
her interest in real estate located in Sullivan County, Indiana as
collateral for a loan taken out by her father. I did not know that
Mrs. Buskirk’s interest in real estate had been used as collateral.
Mrs. Buskirk did not disclose this pledge on her construction loan
application.
7. Mrs. Buskirk and I disagreed about whether it was appropriate
to use her real estate interests as collateral for a loan for her
father. We disagreed about whether she should have discussed
this issue with me prior to pledging her interest as collateral.
8. As a result of our disagreement, Mrs. Buskirk left our marital
home for several days.
9. Several days after Mrs. Buskirk left our home, she and I met
at a restaurant to discuss the marriage. We discussed ending the
marriage as a result of our disagreement.
10. Mrs. Buskirk and I decided that making an agreement about
keeping our property and income separate would solve our
disagreement and would allow our marriage to continue.
11. On June 1, 1976, Mrs. Buskirk and I signed the Postnuptial
Agreement attached hereto as Exhibit A in front of our
neighbors, Ona Kincaid and Ralph Kincaid. Ona Kincaid was a
notary, and she notarized our signatures.
12. I had never drafted a postnuptial agreement before, and I
used a form book to assist with drafting the one Mrs. Buskirk and
I signed in 1976. I have not drafted a postnuptial agreement
other than the one Mrs. Buskirk and I signed.
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13. After Mrs. Buskirk and I signed the Postnuptial Agreement
we did not acquire joint property or debt. We did not file joint
tax returns.
Appellant’s Appendix Volume II at 47-48.
[4] On August 18, 2016, the court held a hearing. Wife and Husband testified, and
the court took the matter under advisement.
[5] On September 13, 2016, the court granted Wife’s motion for summary
judgment. The court’s order states in part:
31) The Court looks to the Postnuptial Agreement in order to
determine if adequate consideration was stated as a matter of
law.
32) Specifically, the Court reviews the Postnuptial Agreement in
order to determine whether or not the parties entered into it with
the intent of reconciling and extending their marriage which
would otherwise have been dissolved but for the execution of
the agreement itself. (emphasis added)
Paragraph 2(A) Controls The Issue
33) The intent of the parties is clearly and unambiguously stated
in Paragraph 2(A) of the Postnuptial Agreement.
34) Paragraph 2(A) states that, at the time they entered into the
agreement, the parties did not contemplate that the dissolution of
their marriage would occur at any time. (emphasis added)
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35) Whatever the agreement was meant to be, on its face, it was
not entered into as a reconciliation agreement.
36) The Postnuptial Agreement was made without valid
consideration and is not enforceable.
37) Further, the clear and unambiguous language of Paragraph
2(A) controls over any other stated consideration in the
Postnuptial Agreement.
38) For example, Paragraph 2(B) states that the parties’ mutual
waivers and releases also constitute valid consideration for the
Postnuptial Agreement.
39) However, the parties cannot waive and release anything
unless there was valid consideration given for them to do so in
the first place.
40) Here there was not.
41) In the alternative, in the event that Paragraph 2(A) and (B),
when read together, could be seen as ambiguous, that ambiguity
must be strictly construed against the drafter.
42) In this case the drafter was husband who also was at the time
he drafted the document a law school graduate.
43) After reviewing the plain meaning of the Postnuptial
Agreement the Court finds, as a matter of law, that the parties
did not enter into it with the intent of reconciling and extending
of their marriage which would otherwise have been dissolved but
for the execution of the agreement itself.
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44) The Court finds that, as a matter of law, the Postnuptial
Agreement was entered into without valid consideration.
45) The Court finds that, as a matter of law, the Postnuptial
Agreement is not enforceable.
46) The Court orders that [Wife’s] Motion for Summary
Judgment is granted.
Id. at 15-16. The court also ordered that Husband pay Wife weekly
maintenance of $858 or monthly maintenance of $3,500 and pay $10,000 of
Wife’s attorney fees.
Discussion
[6] The issue is whether the trial court erred in granting Wife’s motion for
summary judgment. Husband argues that nothing in the Agreement states that
the parties did not consider dissolving their marriage and that the parties’
contemplation that a marriage will not be dissolved going forward is a classic
consideration for a reconciliation agreement. He contends that, assuming the
trial court’s interpretation of Paragraph 2(A) was correct, then the consideration
recited in Paragraph 2(B) independently supports the Agreement. He asserts
that Paragraphs 2(A) and 2(B) are not in conflict, create no ambiguity, and that,
even if they are ambiguous, then it should be resolved by looking to other rules
of construction and, if necessary, extrinsic evidence. He also contends that
enforcing the Agreement forecloses ordering either spouse to pay any
maintenance or attorney fees to the other.
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[7] Wife argues that the trial court correctly read Paragraph 2(A) to mean that the
parties did not contemplate that the dissolution of their marriage would occur at
any time. She asserts that Paragraph 2(B) does not state the consideration that
is required for a reconciliation agreement and does not eviscerate the plain and
ordinary meaning of Paragraph 2(A) and that Husband’s affidavit was parol
and extrinsic evidence that may not be considered. She also argues that the
Agreement does not apply in the event of a divorce and that the waivers and
releases in the Agreement are all couched in terms of what the other foregoes
under the contract as a widow, heir-at-law, next of kin, or distributee of the
other party.
[8] We review an order for summary judgment de novo, applying the same standard
as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The
moving party bears the initial burden of making a prima facie showing that there
are no genuine issues of material fact and that it is entitled to judgment as a
matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary
judgment is improper if the moving party fails to carry its burden, but if it
succeeds, then the nonmoving party must come forward with evidence
establishing the existence of a genuine issue of material fact. Id. We construe
all factual inferences in favor of the nonmoving party and resolve all doubts as
to the existence of a material issue against the moving party. Id. “An appellate
court may affirm summary judgment if it is proper on any basis shown in the
record.” Pfenning v. Lineman, 947 N.E.2d 392, 408-409 (Ind. 2011). Our review
of a summary judgment motion is limited to those materials designated to the
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trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970,
973 (Ind. 2001).
[9] As for the parties’ arguments regarding consideration, we observe that the basic
requirements for a contract are offer, acceptance, consideration, and a meeting
of the minds of the contracting parties. Conwell v. Gray Loon Outdoor Mktg. Grp.,
Inc., 906 N.E.2d 805, 812-813 (Ind. 2009). Whether a contract exists is a
question of law. Id. at 813. To constitute consideration, there must be a benefit
accruing to the promisor or a detriment to the promisee. Ind. Dep’t of State
Revenue v. Belterra Resort Ind., LLC, 935 N.E.2d 174, 179 (Ind. 2010), modified on
reh’g on other grounds, 942 N.E.2d 796 (Ind. 2011). “[T]he concept of
consideration encompasses any benefit—however slight—accruing to the
promisor or any detriment—however slight—borne by the promisee.” Id.
[10] “It has long been held that antenuptial agreements are valid and binding ‘so
long as they are entered into freely and without fraud, duress, or
misrepresentation and are not, under the particular circumstances of the case,
unconscionable.’” Hall v. Hall, 27 N.E.3d 281, 285 (Ind. Ct. App. 2015)
(quoting In re Marriage of Boren, 475 N.E.2d 690, 693 (Ind. 1985)), trans. denied.
“[W]e have concluded that the same should apply to reconciliation agreements
made between parties in order to preserve the marriage.” Id. (citing Flansburg v.
Flansburg, 581 N.E.2d 430, 436 (Ind. Ct. App. 1991), trans. denied).
[11] In Hall, we acknowledged language in other cases that a valid reconciliation
agreement may be made only between parties who have legally “separated or
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filed for dissolution.” Hall, 27 N.E.3d at 285 (quoting Gaskell v. Gaskell, 900
N.E.2d 13, 17 (Ind. Ct. App. 2009) (quoting Flansburg, 581 N.E.2d at 436)).
We also recognized that, most often, the initiation of dissolution proceedings
will in fact precede the execution of a reconciliation agreement as it did in those
cases. Id. We nevertheless disagreed with the husband that such is a condition
precedent to a valid and enforceable reconciliation agreement. Id. We held
that “[t]he proper inquiry is whether the agreement was executed in order to
preserve and extend a marriage that otherwise would have been dissolved but
for the execution of the agreement, see Flansburg, 581 N.E.2d at 434, regardless
of whether formal separation has already occurred or legal proceedings
initiated.” 27 N.E.3d at 285. We also held that it is well settled that parol
evidence may be considered if it is not being offered to vary the terms of the
written contract. Id. at 287. Among other reasons, parol evidence may be
considered to show the nature of the consideration supporting a contract and to
shed light upon the circumstances under which the parties entered into the
written contract. Id. See also Krieg v. Hieber, 802 N.E.2d 938, 944 (Ind. Ct. App.
2004) (observing that the Indiana Supreme Court “has held that parol evidence
may be considered to show the nature of the consideration supporting a
contract” (citing Kentucky & I.B. Co. v. Hall, 125 Ind. 220, 224, 25 N.E. 219, 220
(1890)); and that “parol evidence may be considered to apply the terms of a
contract to its subject matter and to shed light upon the circumstances under
which the parties entered into the written contract” (citing Millner v. Mumby,
599 N.E.2d 627, 629 (Ind. Ct. App. 1992)).
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[12] While the Agreement states at one point that neither party “contemplates a
dissolution of the marriage at any time,” it also mentions “mutual waivers and
releases of the parties which might or could devolve upon them in the event an
action for divorce were filed . . . .” Appellee’s Appendix Volume II at 6. The
Agreement also states: “[I]n order to better effect harmonious domestic tranquility
Husband and Wife desire to resolve their respective rights in the estates of the
other during the lifetime of the parties hereto and have reached an agreement
concerning the respective rights that each party claims in the property of the
other.” Id. (emphasis added). Under the circumstances, we conclude that
Husband’s affidavit, which alleged that the parties had a disagreement, that
Wife left home for several days, that they discussed ending the marriage as a
result of the disagreement, that they decided that making an agreement about
keeping their property and income separate would solve their disagreement
allow their marriage to continue, and that they signed the Agreement, can be
considered to show the nature of the consideration supporting the contract and
that the affidavit raises an issue of fact regarding consideration. Moreover, we
observe that the Agreement contains mutual releases which constitute
consideration. See generally 41 C.J.S. Husband and Wife § 155 (“The mutual
promises of a husband and wife may constitute a sufficient consideration to
support a postnuptial marital agreement.”); see also Greensburg Water Co. v. Lewis,
189 Ind. 439, 128 N.E. 103, 107 (1920) (“It has been held that the
relinquishment by both parties of their respective rights under the contract is a
sufficient consideration to support an agreement by each party to absolve the
other from all obligations imposed by the contract; or, as more frequently
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stated, the mutual release from the obligations of the old contract is an adequate
consideration for the rescission.”). Thus, we conclude that the trial court erred
in granting Wife summary judgment on this basis.
[13] We next turn to interpreting the Agreement. “Interpretation of a contract is a
pure question of law and is reviewed de novo.” Dunn v. Meridian Mut. Ins. Co.,
836 N.E.2d 249, 252 (Ind. 2005). “[R]elease documents shall be interpreted in
the same manner as any other contract document, with the intention of the
parties regarding the purpose of the document governing.” OEC-Diasonics, Inc.
v. Major, 674 N.E.2d 1312, 1314 (Ind. 1996) (quoting Huffman v. Monroe Cty.
Cmty. Sch. Corp., 588 N.E.2d 1264, 1267 (Ind. 1992)). If a contract’s terms are
clear and unambiguous, courts must give those terms their clear and ordinary
meaning. Dunn, 836 N.E.2d at 252. Courts should interpret a contract so as to
harmonize its provisions, rather than place them in conflict. Id. “We will make
all attempts to construe the language of a contract so as not to render any
words, phrases, or terms ineffective or meaningless.” Rogers v. Lockard, 767
N.E.2d 982, 992 (Ind. Ct. App. 2002). Generally, an ambiguous contract will
be construed against its drafter. Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1132,
(Ind. 1995). “If a contract is ambiguous solely because of the language used in
the contract and not because of extrinsic facts, then its construction is purely a
question of law to be determined by the trial court.” Id. Id. at 1133. “A
contract will be found to be ambiguous only if reasonable persons would differ
as to the meaning of its terms.” Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528
(Ind. 2002), reh’g denied. “Rules of contract construction and extrinsic evidence
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may be employed in giving effect to the parties’ reasonable expectations.”
Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind. 2010). “When a contract’s terms
are ambiguous or uncertain and its interpretation requires extrinsic evidence, its
construction is a matter for the factfinder.” Id.
[14] Paragraph 2 of the Agreement states that the consideration consists, in part, of
“the mutual waivers and releases of the parties which might or could devolve
upon them in the event an action for divorce were filed by either party
culminating in divorce and a Court of Law to make distribution of the rights of
the parties.” Appellee’s Appendix Volume II at 6. Thus, the Agreement
specifically addresses releases of rights in the event of divorce. We also observe
that Paragraph 5 of the Agreement provides that “Husband and Wife shall have
the absolute right to manage, dispose of, or otherwise deal with any property
now separately owned, or hereafter separately acquired, in any manner
whatsoever, and may enjoy and dispose of such property in the same manner as
if the marriage had not taken place.” Id. at 9. It is undisputed that after signing
the Agreement the parties did not acquire joint property or debt and did not file
joint tax returns. We conclude that the Agreement sets forth the parties’ intent
to waive any right to property of the other including spousal maintenance and
attorney fees in a dissolution of their marriage.
Conclusion
[15] The Agreement was entered into as a reconciliation agreement, was made with
valid consideration, set forth the parties’ intent to waive any rights to property
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of the other, and is enforceable. For the foregoing reasons, we reverse the trial
court’s order.
[16] Reversed.
May, J., and Pyle, J., concur.
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