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

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

I N T H E

COURT OF APPEALS OF INDIANA

George A. Buskirk,

Appellant-Respondent,

v.

Maureen Buskirk,

Appellee-Petitioner.

November 15, 2017

Court of Appeals Case No.

06A01-1610-DR-2296

Appeal from the Boone Circuit 

Court

The Honorable J. Jeffrey Edens, 

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, heirat-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, heirat-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.