George A. Buskirk v. Maureen Buskirk

86 N.E.3d 217
CourtIndiana Court of Appeals
DecidedNovember 15, 2017
DocketCourt of Appeals Case 06A01-1610-DR-2296
StatusPublished
Cited by8 cases

This text of 86 N.E.3d 217 (George A. Buskirk v. Maureen Buskirk) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
George A. Buskirk v. Maureen Buskirk, 86 N.E.3d 217 (Ind. Ct. App. 2017).

Opinion

Brown, Judge.

George A. Buskirk (“Husband”) appeals-the trial court’s order finding ,a post-nuptial 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

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 con-, cerning 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 thé 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 continuancé of the marriage between Husband and Wife, and 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 pwned by said wife or hereafter acquired including but not limited to....
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....
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.

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:

3.1 am a law school graduate. In 1976,1 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.
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.

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Bluebook (online)
86 N.E.3d 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-a-buskirk-v-maureen-buskirk-indctapp-2017.