                                                                          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.




Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017                  Page 1 of 16
[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

      Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017    Page 2 of 16
        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 . . . .

Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017   Page 3 of 16
        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.

Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017                  Page 4 of 16
              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.

      Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017   Page 5 of 16
        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.



Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017   Page 6 of 16
              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)




      Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017   Page 7 of 16
        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.



Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017   Page 8 of 16
              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.


      Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017   Page 9 of 16
[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


      Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017   Page 10 of 16
       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


       Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017   Page 11 of 16
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)).


Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017   Page 12 of 16
[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
       Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017   Page 13 of 16
       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

       Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017   Page 14 of 16
       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


       Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017   Page 15 of 16
       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.




       Court of Appeals of Indiana | Opinion 06A01-1610-DR-2296 | November 15, 2017   Page 16 of 16
