A Boone county woman cannot recover attorney fees and maintenance from her ex-husband after the Indiana Court of Appeals determined the postnuptial agreement they entered into 40 years ago waived her right to such recovery.
In George A. Buskirk v. Maureen Buskirk, 06A01-1610-DR-2296, George and Maureen Buskirk entered into a postnuptial agreement in June 1976 that provided the spouses would keep their individual property and income separate and also provided for mutual releases. George Buskirk later testified he and his wife came to that agreement as a way of ensuring their marriage would continue after a marital dispute caused his wife to leave their home for several days.
When Maureen Buskirk filed for divorce nearly 40 years later, she requested a division of property, maintenance and attorney fees, while her husband moved to enforce the agreement. She then moved for summary judgment, while George Buskirk designated his own affidavit in which he testified that he and his wife had not acquired any joint property or debt since signing the 1976 agreement and had not filed joint tax returns.
The Boone Circuit Court ultimately granted Maureen’s motion, finding the agreement was made without valid consideration and, thus, was unenforceable. The trial court also found that because the agreement noted the Buskirks did not intend to dissolve their marriage, the agreement was not entered into as a reconciliation agreement.
Thus, the court ordered George Buskirk to pay his wife maintenance and attorney fees. But the Indiana Court of Appeals overturned that decision in a Wednesday opinion.
Judge Elaine Brown, writing for the unanimous appellate panel, first wrote in the opinion that George Buskirk’s affidavit testifying to a marital dispute that ended in the signing of the agreement “can be considered to show the nature of the consideration supporting the contract” and also created an issue of fact regarding consideration. The mutual agreements also constitute consideration, Brown said. Thus, summary judgment was inappropriate in regard to the consideration question, she said.
Brown then pointed to language in the agreement that held, “the mutual waivers and releases of the parties which might or could devolve upon them in the event an action for divorce were filed…,” to indicate the agreement did address releases in the event of a divorce. It also included language that held both George and Maureen “shall have the absolute right to manage…any property now separately owned…and may enjoy and dispose of such property…as if the marriage had not taken place.” That language, Brown said, indicated “an intent to waive any right to property of the other including spousal maintenance and attorney fees… .”
Thus, the appellate court concluded the agreement was valid and enforceable, so the grant of summary judgment to Maureen was reversed.