Flansburg v. Flansburg

• Decision Date: 12 November 1991
• Docket Number: No. 28A04-9012-CV-00588,28A04-9012-CV-00588
• Parties: Sherry L. FLANSBURG, Appellant-Petitioner Below, v. Earl W. FLANSBURG, Appellee-Respondent Below. 1
• Court: Indiana Appellate Court

Page 430

581 N.E.2d 430

Sherry L. FLANSBURG, Appellant-Petitioner Below, v. Earl W. FLANSBURG, Appellee-Respondent Below.

No. 28A04-9012-CV-00588. ¹

Court of Appeals of Indiana Third District.

Nov. 12, 1991.

Joseph A. Sullivan, Bloomfield, for appellant-petitioner below.

Don M. Robertson, James L. Whitlatch, Bunger, Robertson, Kelley & Steger, Bloomington, for appellee-respondent below.

STATON, Judge.

Sherry Flansburg appeals the trial court's judgment ordering the distribution of marital property in accordance with a "Post-Nuptial Agreement," presenting four issues for our review, rephrased as:

I. Whether the trial court erroneously applied the law of antenuptial contracts to the document labeled a "Post-Nuptial Agreement" by the parties.

II. Whether the agreement was supported by sufficient consideration.

III. Whether the agreement was procured by the fraudulent representations of Earl Flansburg.

IV. Whether the agreement should be invalidated as contrary to public policy for encouraging separation and divorce.

We affirm.

Sherry and Earl Flansburg were married in 1983. This was Earl's first marriage, and the fifth marriage for Sherry, who was represented by counsel in each of her four previous dissolutions. Sherry filed a petition for dissolution in September of 1986. In an attempt at reconciliation, the parties executed a post-nuptial agreement the following The trial judge entered findings and conclusions pursuant to Ind.Rules of Procedure, Trial Rule 52. The trial court found that Sherry, who had been represented and advised by her attorney and other counselors, entered into the contract voluntarily and with full knowledge of Earl's financial status. The court further concluded that the post-nuptial agreement was supported by adequate consideration, was not procured by fraud, and should be enforced. The court then ordered the marriage dissolved and the marital assets distributed in accordance with the post nuptial agreement.

                December. 2  After signing the agreement, the parties reconciled and Sherry 
                dismissed the pending dissolution action.  However, the marriage later foundered, and Sherry filed the instant petition for dissolution in July of 1989
                

Pursuant to Indiana law, married persons "may agree in writing to provisions for the maintenance of either of them, the disposition of any property owned by either or both of them and the custody and support of their children" in order to promote "the amicable settlements of disputes that have arisen or may arise ... upon the dissolution of their marriage[.]" IND.CODE 31-1-11.5-10 (1988). This statute has been interpreted as vesting the trial court with the discretion to accept, reject, or modify post nuptial or settlement agreements; valid antenuptial agreements, however, must be enforced as written. In re Marriage of Boren (1985), Ind., 475 N.E.2d 690, 695. The public policy of this state favors the amicable settlement by written agreement of the property rights of those citizens whose marriage is being dissolved. Atkins v. Atkins (1989), Ind.App., 534 N.E.2d 760, 762, trans. denied.

In support of her claim that the trial court abused its discretion in enforcing the post-nuptial contract, Sherry first maintains that the trial court erroneously declared the contract to be an antenuptial agreement and, accordingly, erred by applying the law pertaining to contracts made in anticipation of marriage. Earl responds that the court merely applied the law of antenuptial contracts by analogy. In its conclusions of law, the trial court stated:

6. The Supreme Court has set forth certain principles applicable by analogy to this case. These principles are that an antenuptial agreement has consistently been held to be enforceable so long as it is entered freely and without fraud, duress or misrepresentation and not, under the facts of the case, unconscionable. This is the state of the facts in this case.

Record, p. 11. We find that, under the circumstances, it was entirely appropriate for the trial court to apply the law of antenuptial contracts to the agreement executed in this case.

Here, somewhat of a hybrid agreement is presented. While the property settlement labeled a "Post Nuptial Agreement" was negotiated by the parties well into their marriage, it primarily concerned the distribution of property interests acquired prior to the marriage. See Boren, supra, at 695-96. Just as marriage is, in and of itself, valued and respected by the law as adequate consideration to support Other jurisdictions have recognized the validity of such contracts, called "reconciliation agreements," and have treated them in much the same way as antenuptial agreements. See, e.g., Curry v. Curry (1990), 260 Ga.App. 302, 303, 392 S.E.2d 879, 880 ("We know of no reason why a reconciliation agreement should stand on a different footing from an antenuptial agreement[.]"); Yeich v. Yeich (1990), 11 Va.App. 509, 399 S.E.2d 170; Gilley v. Gilley (1989), Tenn.App., 778 S.W.2d 862, 863 ("In our opinion, reconciliation agreements are in the nature of prenuptial or antenuptial agreements and should be generally governed by the same principles."); Stadther v. Stadther (1988), Ala.Civ.App., 526 So.2d 598; Hanner, supra; Patino v. Patino (1952), 303 N.Y. 999, 106 N.E.2d 276; Mann v. Mann (1946), 76 Cal.App.2d 32, 172 P.2d 369. We likewise see no reason to treat this reconciliation agreement any differently than an antenuptial agreement, despite the parties' designation of the document as a "post nuptial agreement." The trial court did not err applying the law of antenuptial contracts.

an antenuptial agreement, Matter of Estate of Palamara (1987), Ind.App., 513 N.E.2d 1223, reh. denied, the extension of a marriage that would have otherwise been dissolved but for the execution of an agreement to reconcile has been deemed adequate consideration. See Hanner v. Hanner (1964), 95 Ariz. 191, 388 P.2d 239.

Sherry contends that the agreement must fail for lack of consideration. With respect to this issue, the trial court found:

FINDINGS OF FACT

* * * * * *

7. That the Flansburgs' marriage has been described by each of the parties generally as an unsuccessful marriage except for approximately three (3) months at the beginning of the marriage and three (3) months after the formal reconciliation.

8. That a first action for dissolution was filed by Mrs. Flansburg on September 16, 1986.

9. That during the pendency of that dissolution each of the spouses were represented by attorneys of their own choosing.

10. That during the pendency of that dissolution action a contract--labeled a Post Nuptial Agreement--was executed on December 16, 1986.

11. The dissolution action was then dismissed.

* * * * * *

15. That Earl Flansburg furnished approximately Seven Hundred Fifty Dollars ($750.00) per month in support of the household as well as furnishing a house and/or condominium and paying utilities during the majority of the period of this marriage.

16. That during most of the period of this marriage a child, children or grandchildren of Sherry Flansburg lived in the Flansburg household.

* * * * * *

25. That the parties executed a contract--labeled a Post Nuptial Agreement--while the first dissolution action was pending.

* * * * * *

32. The Contract was relied upon by both parties.

33. That Earl Flansburg expended at least $64,000.00 in reliance upon this Contract.

* * * * * *

40. There was valuable consideration given for the execution of this Contract as shown by the uncontradicted evidence of the expenditure of Earl Flansburg of approximately $64,983.14 to the benefit of Sherry Flansburg and her family as a result of reliance upon this agreement.

* * * * * *

CONCLUSIONS OF LAW

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11. That Earl Flansburg, in reliance upon the execution of this contract, expended a significant amount of money Record, pp. 6-11.

which provided ample consideration for the execution of this agreement.

When a trial court issues findings and conclusions under T.R. 52, we review the same under the following two-tiered standard of review: we first must determine whether the evidence supports the findings; then we determine whether the findings support the judgment. Kaminszky v. Kukuch (1990), Ind.App., 553 N.E.2d 868, 870, trans. denied. We will neither reweigh the evidence nor reassess the credibility of the witnesses and will not set aside the fact-finding of the trial court unless it is clearly erroneous. Brancheau v. Weddle (1990), Ind.App., 555 N.E.2d 1315, 1317. A judgment is clearly erroneous where a review of the record leaves us with a firm conviction that a mistake has been made. Indiana Dept. of Correction v. Stagg (1990), Ind.App., 556 N.E.2d 1338, 1341, trans. denied.

Both Earl and Sherry testified that they did in fact reconcile after they executed the agreement. Earl testified that he expended a considerable amount of money to support Sherry and her family after the reconciliation. By the terms of the agreement, each party waived rights that they would have otherwise been legally entitled to. See supra, note 1. Furthermore, as we have stated, the marriage itself, or in this case, the resumption of a marital relationship jeopardized by the initiation of dissolution proceedings, is adequate consideration for such an agreement. See Hanner, supra. The evidence supported the findings of the trial court, which findings supported the conclusion that there was adequate consideration for the agreement.

Sherry also contends that the agreement was procured by fraud. On the issue of fraud, the trial court made the following findings and conclusions:

FINDINGS OF FACT

* * * * * *

14. That the evidence herein supports the conclusion that a full disclosure of Earl Flansburg's assets was made during the pendency of the first dissolution action and prior to the execution of the Post Nuptial Agreement.

* * * * * *

26. That prior to and at the time of the execution of this Contract each of...