Attorney for Appellant Attorneys for Appellee
Cynthia L. Garwood Jason W. Bennett
Lafayette, Indiana James A. Gothard
Bennett, Boehning & Clary
Appeal from the Tippecanoe Superior Court, No. 79D02-9707-DR-164
The Honorable Thomas H. Busch, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 79A02-0209-CV-749
April 13, 2005
Peggy Haville ("former wife") appeals from the trial court's dismissal of her petition
for modification of the dissolution decree approving the parties' settlement agreement under which
Michael Haville ("former husband") was to pay maintenance of $400.00 per month for
the remainder of the wife's life. The Court of Appeals affirmed in
a published decision. Haville v. Haville, 787 N.E.2d 410 (Ind. Ct. App.
2003). We granted transfer, 804 N.E.2d 755 (Ind. 2003)(table), and now hold
that maintenance may be ordered that continues beyond the death of the obligor,
but that the trial court lacked the authority to modify the parties' specific
agreement here providing for fixed spousal maintenance not subject to modification.
The parties' marriage was dissolved on December 16, 1997. The parties agree
that the wife suffers from Multiple Sclerosis and that, by the time their
dissolution was finalized, she was confined to a wheelchair. As part of
their settlement agreement, which was approved and incorporated in the dissolution decree, the
parties agreed as follows:
In March of 2002, the former wife petitioned the trial court to increase
the amount of her monthly maintenance award. Granting the former husband's motion
to dismiss the petition, the trial court noted that the maintenance provision was
payable beyond the husband's death and thus found that it was not modifiable
"because it was based upon an agreement of the parties and exceeded the
powers of the Court in the absence of the parties' agreement." Id.
at 45 (citing Voigt v. Voigt, 670 N.E.2d 1271 (Ind. 1996)).
In Voigt, this Court held that "a court has no statutory authority to
grant a contested petition to modify a maintenance obligation that arises under a
previously approved settlement agreement if the court alone could not initially have imposed
an identical obligation had the parties never voluntarily agreed to it." Id.
at 1280 (emphasis added). We expressly reserved, however, "the question whether a
court may modify a maintenance obligation that originated in a settlement agreement but
that rested on a groundincapacity, caregiving, or rehabilitationon which the court could have
ordered the same maintenance in the absence of agreement." Id. at 1280
Asserting that the present case falls within the issue reserved in Voigt, the
former wife contends that the trial court did have the authority to make
the maintenance award agreed to by the parties. She acknowledges Indiana decisions
holding that a maintenance obligation terminates with the death of the obligor, but
asserts that this applies only where an agreement or decree is silent, thus
implying that a trial court may impose a maintenance obligation that continues after
the death of the obligor. The former husband argues that maintenance payments
may not be continued after the death of the payor.
In Hicks v. Fielman, 421 N.E.2d 716 (Ind. Ct. App. 1981), the parties'
agreement required the husband to pay a gross sum "alimony judgment" in fixed
monthly installments, but which were to cease upon the wife's death or remarriage.
Observing that this constituted a judgment of "periodic alimony: maintenance," id. at
722, the court stated: "Unless an agreement or decree calling for maintenance clearly
says otherwise, maintenance payments can not accrue after the death of the person
liable for them." Id. at 720. It later explains: "[T]he obligation
to pay periodic alimony ceases with the death of the person liable for
it. This seems to be the general rule when the decree allowing
alimony does not provide that payments shall continue after the death of the
payor." Id. at 722. Hicks was cited in Brown
v. Guardianship of Brown, 775 N.E.2d 1164 (Ind. Ct. App. 2002), for the
proposition that a "claim for maintenance after the death of her former husband
could not as a matter of law succeed because the decree awarding such
maintenance did not provide that the payments would continue after the death of
the payor." Id. at 1166. Like Hicks, the obligation to pay
spousal support in Brown did not include any requirement that such payments survive
the obligor's death. The court in Brown thus concluded, "an obligation to
pay periodic spousal support, such as in this case, ceases with the death
of the person liable for it." Id. at 1167.
Indiana case law thus does not prohibit a maintenance obligation from surviving the
death of the obligor where the decree so provides. Furthermore, maintenance for
a spouse's incapacity, lasting beyond the death of the obligor, is authorized by
statute. Where a spouse is incapacitated such that the spouse's ability of
self-support is materially affected, a court "may find that maintenance for the spouse
is necessary during the period of incapacity, subject to further order of the
court." Ind. Code § 31-15-7-2(1) (emphasis added). The duration of
this authorized maintenance obligation is expressly measured by the period of the recipient's
incapacity and not by the lifetime of the obligor.
Here, the parties' settlement agreement explicitly directs the husband to pay monthly maintenance
to the wife "for the remainder of her life." Appellant's App'x. at
11. In add
ition, the agreement provisions are "binding upon the heirs, executors,
administrators, and personal representatives of the parties." Id. at 13. It
is undisputed that this maintenance obligation rested on the wife's incapacity. Thus,
if the parties' settlement agreement provided only that maintenance be paid to the
wife for the remainder of her life, the court could have ordered the
same maintenance in the absence of agreement and such facts would present the
question reserved in Voigt.
The maintenance agreement in this case, however, goes beyond merely requiring pa yment for the lifetime of the former wife: it also prohibits future modification claims. The agreement provides that the agreement settles all "spousal maintenance rights" and releases "all claims and rights which either ever had, now has or might hereafter have against the other by reason of their former relationship as Husband and Wife." Because Indiana Code § 31-15-7-3 provides that spousal maintenance authorized by statute may be modified, the trial court lacked the authority to order maintenance payments that were not subject to modification. Thus lacking the power on its own to order non-modifiable spousal maintenance, the trial court lacked authority to thereafter modify the maintenance obligation created by the previously approved settlement agreement. Voigt, 670 N.E.2d at 1280.
Transfer having previously been granted, we affirm the trial court order dismissing the
petition for modification of maintenance.
Sullivan and Boehm, JJ., concur. Shepard, C.J., concurs in result with separate
opinion in which Rucker, J., joins.
This reform abandoned a good number of long-standing legal concepts. It eliminated
the need to assign blame for the failure of a marriage, such that
people frequently call it no-fault divorce. The act also put an end
to the last vestige of the antique idea that the husband was the
sole economic and legal unit, with the wife a mere appendage of little
separate identity. Instead, it treated husband and wife as equal economic participants;
it contemplated that they would divide their assets and go their separate ways
after the dissolution, as though they were terminating a corporation or a partnership.
Consistent with this policy, the act abolished the very idea of alimony.
Johnson v. Johnson, 174 Ind. App. 408, 410, 367 N.E.2d 1147, 1149
Our legislature was fairly muscular on this last point. The uniform act
featured a provision for maintenance when a spouse lacks sufficient property to provide
for his reasonable needs [and] is unable to support himself through appropriate employment.
Unif. Marriage and Divorce Act § 308 (amended 1973), 9A U.L.A. 446
(1998). The Indiana Civil Code Study Commission tendered the act to our
legislature with a similar provision.
See footnote The General Assembly elected instead what the
Court of Appeals later called a more restrictive provision authorizing maintenance when a
spouse is physically or mentally incapacitated. Pub. L. No. 297 § 9(c),
1973 Ind. Acts 1585, 1590.
Even during the days of alimony, the rule was that periodic alimony payments
made to support a former spouse (as opposed to alimony provided in lieu
of a share of property) term
inated upon the death of the obligee.
See, e.g., 1949 Ind. Acts ch. 120, s. 3, p. 313; White v.
White, 167 Ind. App. 459, 338 N.E.2d 749 (1975). And from the
earliest cases under the 1973 act to the most recent ones, the Court
of Appeals has said unless the divorce decree clearly says otherwise, the maintenance
ends when the obligor dies. See, e.g., Brown v. Guardianship of Brown,
775 N.E.2d 1164, 1167 (Ind. Ct. App. 2002); Hicks v. Fielman, 421 N.E.2d
716, 722 (Ind. Ct. App. 1981); White v. White, 167 Ind. App. 459,
471, 338 N.E.2d 749, 756 (1975).
If anything, the 1973 act retained the distinction between periodic post-divorce payments intended
as division of property and those payments intended as ongoing support of an
ex-spouse. It abolished the latter (except in cases of incapacity). It
also abolished the former, except when the parties submit for court approval an
agreement in writing to provisions for the maintenance of either of them under
section 10 of the 1973 act. The Court of Appeals once called
this putting a new hinge on an old door, a provision designed to
let parties decide to take advantage of the federal income tax treatment of
such payments. Hicks, 421 N.E.2d at 721.
In the face of these long-standing principles about termination of alimony and maintenance,
and without overruling any of the multiple cases of this Court or the
Court of Appeals on the point, the majority today holds that the Code
gives Indiana judges power to order maintenance beyond the death of the obligor
whether the parties agree to it or not. It does so on
the basis of a single phrase: a court may find that maintenance
for the spouse is necessary during the period of incapacity. Ind. Code
Ann. § 31-15-7-2(1) (West 1999) (emphasis added). It is hard to imagine
that the General Assembly would choose to alter such a fundamental legal concept,
one that has spanned several generations at least, with such subtlety. The
majority cites nothing else but the five underlined words as support for its
conclusion -- not a report about national trends or any scholarly articles or
even any judicial speculation to support its view that the legislature intended a
substantial policy change by using these words. I think it much more
likely that the General Assembly simply intended to recognize that certain impairments may
last for quite a while but not last forever, like treatable illness for
which there would be an extended period of recovery hopefully followed by good
Because I conclude that the legislature did not intend to authorize judges to
order maintenance beyond the death of the obligor, I think the majority gets
to the right result. The parties agreement for the maintenance of either
of them, lasting even after the husbands death, submitted by them under section
10 and incorporated into the decree, can only be modified by their mutual
assent. This rule reflects adherence to provisions in section 10(c), and it
also represents good judicial policy. If it were the case that courts
could modify such agreements after the decree is entered, how could the judge
know with confidence what got traded for what during the course of the
earlier negotiations? If one party is to be granted more of something,
should that party be obliged to give up part of something else obtained
in the course of achieving a settlement? Even if judges could redesign
settlements after the fact, a legal system that sanctioned such redesigning would be
one in which parties settled far less often than they do now.
Rucker, J., joins.