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Buskirk v. Buskirk

Court of Appeals of Indiana

November 15, 2017

George A. Buskirk, Appellant-Respondent,
v.
Maureen Buskirk, Appellee-Petitioner.

         Appeal from the Boone Circuit Court The Honorable J. Jeffrey Edens, Judge Trial Court Cause No. 06C01-1603-DR-182

          ATTORNEYS FOR APPELLANT Peter J. Rusthoven Christopher J. Bayh Barnes & Thornburg LLP Indianapolis, Indiana Holly J. Wanzer Wanzer Edwards PC Indianapolis, Indiana.

          ATTORNEYS FOR APPELLEE Andrew Z. Soshnick Teresa A. Griffin Faegre Baker Daniels LLP Indianapolis, Indiana.

          BROWN, JUDGE.

         [¶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 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 . . . .
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 ...

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