Roberts v. Roberts

• Decision Date: 14 December 1994
• Docket Number: No. 10A05-9402-CV-65,10A05-9402-CV-65
• Citation: 644 N.E.2d 173
• Parties: Janet L. ROBERTS, Appellant-Petitioner, v. David K. ROBERTS, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 173

644 N.E.2d 173

Janet L. ROBERTS, Appellant-Petitioner, v. David K. ROBERTS, Appellee-Respondent.

No. 10A05-9402-CV-65.

Court of Appeals of Indiana Fifth District.

Dec. 14, 1994.

Earl C. Mullins, Jr., Masters Mullins & Arrington, Clarksville, for appellant.

Ronald R. Fifer, Douglas B. Bates, Stites & Harbison, Jeffersonville, for appellee.

OPINION

SHARPNACK, Chief Judge.

Janet L. Roberts appeals the trial court's order modifying the maintenance award in the decree of dissolution of Janet's marriage to David K. Roberts. David cross-appeals. We reverse.

Janet raises one issue for our review, which we restate as two issues: (1) whether the trial court erred in modifying the maintenance order where the maintenance order resulted from the parties' agreement, and (2) whether David met his burden of showing changed circumstances so substantial and continuing as to warrant a change in the maintenance order.

David raises two issues for our review, which we restate as whether the trial court erred in terminating the maintenance as of December, 1993, and not June 4, 1993. Because we reverse, we need not address this issue.

Janet and David were married on April 30, 1977. Janet filed a petition for dissolution on January 2, 1992. On October 16, 1992, the court entered a dissolution decree. Among the provisions of the dissolution decree was the following:

"D. The parties advised the court they have entered into an oral settlement agreement, the provisions of which are as follows:

* * * * * *

10) Rehabilitative Maintenance. The husband shall pay rehabilitative maintenance to the wife conditioned upon its being fully tax deductible by him and includable by the wife in her income for tax purposes. It is specifically agreed between the parties that this obligation to pay rehabilitative maintenance will cease upon the death of the wife. The amount of the maintenance is fixed at Three Hundred Dollars ($300.00) per month for forty (40) continuous months beginning October 1, 1992."

Record, pp. 64, 67.

On July 26, 1993, David filed a petition to modify the dissolution decree, requesting that the maintenance be terminated effective June 4, 1993, the date of Janet's remarriage. On September 27, 1993, following a hearing, the court entered its order granting David's petition to modify. The court found, in pertinent part, that

"there are substantial and changed circumstances of a continuing nature which make the existing order as to rehabilitative maintenance unreasonable in that the petitioner remarried on June 19, 1993. The rehabilitative maintenance order is to be modified with the [sic] December, 1993 being the last payment, and the Respondent should be relieved of all further rehabilitative maintenance payments provided for in the Decree of Dissolution."

Record, p. 86.

I

Janet argues that the maintenance provision in the dissolution decree was not subject to modification because it was predicated upon the agreement of the parties.

An award of maintenance may be included in a dissolution decree in either of two ways. First, the court may order maintenance pursuant to Indiana Code § 31-1-11.5-9(c) after making the findings required under I.C. § 31-1-11.5-11(e), which authorizes the court to find that maintenance is necessary for reasons of a spouse's incapacitation, insufficient assets, or need for rehabilitation. I.C. § 31-1-11.5-11(e)(1)-(3). Second, the court may order maintenance pursuant to the provisions of I.C. § 31-1-11.5-10(a), which authorizes the court to award maintenance pursuant to an agreement between the parties "to promote the amicable settlements of disputes that have arisen or may arise between the parties to a marriage." I.C. § 31-1-11.5-10(a).

The statutory provision for the modification of maintenance, however, appears to authorize only the modification of maintenance ordered under the first method above. Under I.C. § 31-1-11.5-17(a), an order for maintenance in a dissolution decree ordered under I.C. § 31-1-11.5-9(c) may be modified or revoked, in pertinent part, upon a showing of "changed circumstances so substantial and continuing as to make the terms unreasonable." I.C. § 31-1-11.5-17(a)(1). In other words, a maintenance award based on a spouse's incapacity, insufficient assets, or need for rehabilitation may be modified pursuant to I.C. § 31-1-11.5-17(a), but no provision is made for the modification of maintenance ordered pursuant to an agreement of the parties.

In Bowman v. Bowman (1991), Ind.App., 567 N.E.2d 828, the court addressed this issue as follows:

"By its terms, I.C. 31-1-11.5-17(a) only applies to authorize the modification of an award of spousal maintenance made upon a trial court's finding of incapacitation. It does not authorize the modification of awards of spousal maintenance predicated upon an agreement of the parties.

Moreover, it is well settled that divorcing spouses have more flexibility in crafting their own property settlements than do divorce courts. Smith [v. Smith (1989), Ind.App., 547 N.E.2d 297]. A trial court may order spousal maintenance only after a showing of incapacitation. Id. However, divorcing spouses crafting their own agreements may provide for maintenance without such a showing. Id. Therefore it follows that while a divorce court is prohibited from fashioning an award of spousal maintenance containing a provision that the award is not subject to modification, divorcing couples are perfectly free to craft their own agreements--as did the parties in the present case--for an award of maintenance that is not subject to modification."

Bowman, 567 N.E.2d at 830. As noted, the maintenance provision in Bowman contained a provision that the maintenance obligation was not subject to modification, and as such Bowman is distinguishable from the present case. The Bowman court is at least technically correct, however, in that by its terms section 17(a) does not authorize the modification of awards of spousal maintenance predicated upon an agreement of the parties. The question remains as to whether maintenance awards predicated upon an agreement of the parties are immune from modification in the absence of a provision to that effect.

In Pfenninger v. Pfenninger (1984), Ind.App., 463 N.E.2d 1115, the court answered that question as follows:

"In Farthing v. Farthing, (1978) 178 Ind.App. 336, 382 N.E.2d 941, trans. denied (1979), this court squarely held that a maintenance award may be modified upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.... This court impliedly recognized that maintenance awards may be modified in Wilhelm [v. Wilhelm, (1979) Ind.App., 397 N.E.2d 1079,] where this court said:

'A degree of flexibility was retained for maintenance awards, but the legislature sought to achieve finality in regard to property division. This approach is consistent with the purposes behind the respective awards.

A maintenance or alimony award is designed to help provide for a spouse's sustenance and support; therefore, conditions are often attached to these awards which permit their alteration in light of changes in circumstances. [Citations omitted.]'

397 N.E.2d at 1081. See also Paxton [v. Paxton], [ (1981) Ind.App.], 420 N.E.2d [1346] at 1349, fn. 2 (recognizing that so-called 'permanent' maintenance awarded under IC § 31-1-11.5-9(c) is 'temporary' in the sense that it is subject to further order of the court).

The clear holding in Farthing, and its implied recognition in both Wilhelm and Paxton is in accordance with the general rule.

'Ordinarily the court has the power to modify a decree for alimony, even though it is based upon or incorporates an agreement for payments thereof. On the other hand, the court does not have the power to modify a true property settlement or a decree incorporating it, even though it provides for periodic payments as distinguished from a lump sum or a transfer of property, unless the settlement itself authorizes a modification by the court. [Emphasis added.]'

24 Am.Jur.2d Divorce and Separation § 846 (1983).

Thus, a provision for maintenance is subject to modification whether it is based upon the decree of the court or upon the agreement of the parties. Our supreme court in Meehan v. Meehan, (1981) Ind., 425 N.E.2d 157, 160, stated:

'[T]he fact that a child support order has been entered pursuant to the terms of a settlement agreement, even where, as here, it is intended as forever determinative by the parties, is of no consequence to the questions of whether the order should subsequently be modified....'

We perceive no difference between a child support order and a maintenance award in this respect. Both are subject to modification upon a showing of a change of conditions so substantial and continuing as to make the terms unreasonable. That the award was entered as the result of an agreement by the parties is of no moment and does not deprive the parties of the right to seek modification in a proper case."

Pfenninger, 463 N.E.2d at 1120-21.

The Pfenninger court's citation to Meehan was implicitly criticized, however, in Bowman.

"The Meehan decision involving a child support order and the present case involving a spousal support order are governed by entirely different principles of public policy. We have consistently held that the parent having custody of a child is merely the trustee of the child support payments and has no right to contract away the benefits of the trust in favor of that child. Pickett v. Pickett (1984), Ind.App., 470 N.E.2d 751. Similarly, the custodial parent has no right to enter into an agreement regarding child support that contains a nonmodification provision where such a provision could prejudice the right of the child to be supported by its parent.

An entirely different principle of public policy is at work in the present case, namely, the freedom to contract. The Indiana Dissolution of Marriage Act, IND.CODE 31-1-11.5-10,...