ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
BRYAN LEE CIYOU WILLIAM O. HARRINGTON
COURT OF APPEALS OF INDIANA
Ciyou & Dixon, P.C. William O. Harrington, P.C.
Indianapolis, Indiana Danville, Indiana
IN RE THE MARRIAGE OF: )
JOYCE ZAN, )
vs. ) No. 32A05-0403-CV-159
LAWRENCE ZAN, )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Robert W. Freese, Judge
Cause No. 32D01-0305-DR-95
January 21, 2005
Appellant-respondent Joyce Zan appeals the trial courts order granting appellee-petitioner Lawrence Zans Verified
Petition to Modify or Revoke Prior Order of Maintenance. Specifically, Joyce contends
that the trial court erred in modifying the parties settlement agreement with respect
to Lawrences obligation to make rehabilitative maintenance payments. Finding no error, we
Lawrence and Joyce were married on May 11, 1985, and Lawrence petitioned to
dissolve the marriage on December 18, 2001. On April 9, 2002, the
parties filed their negotiated Summary Dissolution Decree (the Agreement), which was approved by
the trial court. The Agreement includes the following provision:
3. REHABILITATIVE MAINTENANCE
Father agrees to pay directly to Mother eight hundred dollars ($800.00) per month
in rehabilitative maintenance for a period of three years, so long as Father
remains employed in his current capacity with the FAA. If Fathers employment
should change, this event shall be considered a substantial change in circumstances thereby
effectuating a modification of the amount of maintenance payable to Mother.
The parties note that Father is agreeable to paying rehabilitative maintenance due to
the fact that Mother has not worked continuously throughout the marriage and needs
assistance in obtaining an education to better employment opportunities. Said maintenance is
not being paid due to disability.
Appellants App. p. 49.
Pursuant to the rehabilitative maintenance provision, between April 2002 and February 10, 2004,
Lawrence made twenty-three monthly payments to Joyce at the rate of $800 per
month. Joyce did not attend school between April 2002 and December 2002
because she was concentrating on a drug rehabilitation program related to her addiction
to pain pills. Between December 2002 and April 2003, Joyce attended the
Masters Pro program, but she did not complete that educational program. In
October 2003, Joyce enrolled at ITT Technical Institute, but subsequently learned that she
did not meet the requirements and withdrew. As of February 10, 2004,
Joyce was looking into, but had not yet enrolled in, educational and vocational
training programs at Goodwill, Hendricks College Network, and Sheltering Wings.
As of February 10, 2004, Lawrence was still employed with the FAA.
He testified that he is willing to continue making rehabilitative maintenance payments if
Joyce actually enrolls in an educational program.
On February 10, 2004, Lawrence filed the maintenance modification petition in open court
and the trial court conducted a hearing on the petition. On the
same date, the trial court issued its order granting Lawrences petition. The
order provides, in pertinent part, as follows:
5. The purpose of the maintenance award was to provide Wife assistance to obtain
education to obtain better employment opportunities.
6. I.C. 31-16-8-1 permits modification of an order for maintenance if (1) there is
a change so substantial and continuing that the original terms are unreasonable and
(2) if more than twelve months have passed since the prior order.
7. Wife has made no substantial effort to enroll in and complete any formal
8. Wife has been employed in various jobs earning from $7.50 to $10.00 per
9. Wife pays no child support and thus does not have that weekly expense.
10. Wife has had the benefit of $18,400.00 to be used towards her education.
11. Wife has been in substance abuse treatment to cope with a long term
prescription drug problem.
12. The Dissolution Decree is silent as to the nature and extent of education
13. Wife has been drug free for 18 months, but has not gained better
employment than at the time of the decree.
14. Husband shall make the next $800.00 maintenance payment, that being the 24th payment.
15. Husbands obligation to make the payments of $800.00 per month shall terminate.
16. Husbands maintenance obligation shall, until and including April 7, 2005 be to reimburse
Wife in an amount up to $9,600.00 for educational classes or training begun
prior to April 7, 2005 and successfully completed by Wife.
17. Wife shall provide Husband with an invoice at the beginning of the class
or training and with a report showing successful completion of the class or
18. Husband shall reimburse wife [sic] within 7 days of receiving the report.
Appellants App. p. 9 (emphasis in original). Joyce now appeals.
DISCUSSION AND DECISION
Joyce contends that the trial court erred in modifying the Agreement. Specifically,
she argues that the trial court lacked the authority to modify the Agreement
because it could not have ordered Lawrence to make spousal maintenance payments without
the parties consent. Lawrence responds that because the trial court would have
had the statutory authority to order him to make rehabilitative maintenance payments, it
had the authority to modify the Agreement.
As we consider Joyces argument, we note that the trial courts order is
a general judgment entered with findings: [s]ua sponte findings control only as
to the issues they cover and a general judgment will control as to
the issues upon which there are no findings. A general judgment entered
with findings will be affirmed if it can be sustained on any legal
theory supported by the evidence. Estate of Skalka v. Skalka, 751 N.E.2d
769, 771 (Ind. Ct. App. 2001). We further note that to the
extent the order relies upon interpretation of the Agreement, we will review that
de novo because it is a pure question of law. Dedelow v.
Pucalik, 801 N.E.2d 178, 183 (Ind. Ct. App. 2003).
There are two ways in which a party to a divorce may be
obligated to make spousal maintenance payments. Either the parties may provide for
maintenance in a negotiated settlement agreement or the court may order maintenance payments
in certain limited circumstances. Voigt v. Voigt, 670 N.E.2d 1271, 1275-76 (Ind.
1996). A trial court may award only three, quite limited varieties of
post-dissolution maintenance: spousal incapacity maintenance, caregiver maintenance, and rehabilitative maintenance. Id. at
1276; see also Ind. Code § 31-15-7-2. A court may order rehabilitative
maintenance for no more than three years if it finds that a spouse
needs support while acquiring sufficient education or training to get an appropriate job.
I.C. § 31-15-7-2(3). Additionally, the parties may themselves provide for maintenance
in settlement agreements where the court could not otherwise order it. Voigt,
670 N.E.2d at 1277. Indeed, the parties to a maintenance agreement are
both grown-ups, free to bargain with their own legal rights. Id. at
Our supreme court has noted that courts should exercise their authority to review
settlement agreements with great restraint. Id. at 1279. In Voigt, our supreme
court established a general principle: [w]here a court had no authority to impose
the kind of maintenance award that the parties forged in a settlement agreement,
the court cannot subsequently modify the maintenance obligation without the consent of the
parties. Id. at 1279-80. The court reserved the question whether a
court may modify a maintenance obligation that originated in a settlement agreement but
that rested on one of the groundsincluding rehabilitative maintenanceon which the court could
have ordered the same maintenance in the absence of agreement. Id. at
1280 n.13; see Stuart v. Phillips, 734 N.E.2d 1046 (Ind. 2000) (confirming that
Voigt did not resolve whether a trial court may modify a spousal maintenance
obligation where it could have ordered the same maintenance initially).
The trial court and Lawrence both contend that Indiana Code section 31-16-8-1
See footnote vests
the trial court with authority to modify the Agreement. Appellants App. p.
9; Appellees Br. p. 11. But as noted by our supreme court
Voigt, this provision refers to the modification of only court-imposed maintenance, not
of approved maintenance agreements. 670 N.E.2d at 1279 (emphasis in original).
Thus, the statute does not answer the question of whether the trial court
in this case had the authority to modify the negotiated Agreement.
Here, Joyce and Lawrence agreed that Lawrence would make rehabilitative maintenance payments to
Joyce due to the fact that [she had] not worked continuously throughout the
marriage and needs assistance in obtaining an education to better employment opportunities.
Appellants App. p. 49. The trial court would have had the authority,
pursuant to Indiana Code section 31-15-7-2(3), to order Lawrence to make such rehabilitative
maintenance payments without the agreement of the parties.
Although our supreme court has not squarely decided the issue presented today, it
is our view that the trial court may modify the Agreement under these
circumstances. To hold otherwise may circumvent the parties ability or desire to
bargain independently without court intervention. Put another way, a party may be
loathe to enter into an agreement such as the one here, knowing that
a court could not intervene in the event of changed circumstances.
Even more compelling, when the Agreement is examined as a whole, it is
apparent that the purpose of the rehabilitative maintenance provision was to enable Joyce
to attend an educational or vocational training program. Specifically, the Agreement requires
Lawrence to make rehabilitative maintenance payments for a full three years so long
as [he] remains employed in his current capacity with the FAA. Appellants
App. p. 49. While Joyce concludes from this clause that the only
way, aside from the passage of three years, that Lawrences obligation may be
modified is if he loses his job with the FAA, our review of
the Agreement leads us to disagree. A subsequent clause goes on to
note that Lawrence is agreeable to paying rehabilitative maintenance due to the fact
that [Joyce] has not worked continuously throughout the marriage and needs assistance in
obtaining an education to better employment opportunities. Id. It is apparent
from this clause that the parties intended that the rehabilitative maintenance would assist
Joyce in obtaining an education so that she could seek better employment opportunities.
The evidence presented at the hearing showed that rather than obtaining an
education, Joyce has collected over $18,000 from Lawrence and has instead apparently used
it as a means of supporting herself. In our view, such was
not the intent and spirit of the Agreement. Thus, under these circumstances,
the trial court properly modified Lawrences maintenance obligation.
The judgment of the trial court is affirmed.
ROBB, J., concurs with opinion.
KIRSCH, J., dissents with opinion.
COURT OF APPEALS
IN RE THE MARRIAGE OF: )
JOYCE ZAN, )
) No. 32A05-0403-CV-159
LAWRENCE ZAN, )
ROBB, Judge, concurs with separate opinion.
I respectfully concur in Judge Bakers result. Here, Lawrence petitioned the trial
court requesting that it modify his maintenance payment to Joyce. The trial
court found, and Lawrence now contends, that Indiana Code section 31-16-8-1 gives a
trial court the authority to modify maintenance agreements. Indiana Code section 31-16-8-1
really only pertains to a trial courts authority to modify or revoke child
support payments. Indiana Code section 31-15-7-3 does give a trial court the
authority to modify maintenance agreements, but, as Judge Baker points out, this statute
only allows trial courts to modify court-imposed maintenance and not approved maintenance settlement
agreements. Because the maintenance at issue here was not court-imposed, neither Indiana
Code section 31-15-7-3 or Indiana Code section 31-16-8-1 would have given the trial
court the authority to modify the maintenance agreement. In fact, there is
no Indiana statute that gives a trial court the authority to modify an
approved maintenance settlement agreement.
However, our supreme court has considered the issue of whether a trial court
has the authority to modify an approved maintenance settlement agreement. In Voigt
v. Voigt, 670 N.E.2d 1271, 1280 (Ind. 1996), the 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. But later, in Stuart v. Phillips, 734 N.E.2d
1046, 1047 (Ind. 2000), our supreme court stated that Voigt expressly left open
the issue presented here, which is whether a trial court has the authority
to modify a spousal maintenance obligation when that court could have imposed the
same obligation itself without the parties agreement. However, the Courts analysis in
Voigt focused less on whether there was a statutory provision and more on
whether the trial court could have awarded it in the first instance.
Thus, I believe that Judge Bakers conclusion that a trial court does have
the authority to modify a spousal maintenance obligation that the court could have
imposed itself without the parties agreement is a logical outgrowth of the Voigt
decision. The trial court here could have awarded Joyce rehabilitative maintenance pursuant
to Indiana Code section 31-15-7-2(3) without the parties agreement. Therefore, I agree
with Judge Baker that the trial court could properly modify Lawrences maintenance obligation.
COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF: )
JOYCE ZAN, )
vs. ) No. 32A05-0403-CV-159
LAWRENCE ZAN, )
KIRSCH, Chief Judge, dissenting.
I respectfully dissent.
Negotiated maintenance provisions are only one part of a negotiated property agreement.
In exchange for such provisions, a party may give up other property claims
or may agree to such a provision solely because of tax consequences of
such a provision. Thus, modifying a negotiated maintenance provision implicates the entire
division of the marital estate. Moreover, modifying the provision in effect adds
a term to the parties contract for which they did not bargain and
for which they neither gave, nor received, consideration.
Here, the parties could have made maintenance conditional on wifes satisfactory educational progress.
They did not.
Parties are free to negotiate a provision for future modification of such agreements.
Indeed, the parties here negotiated and agreed to a provision for modification
of the maintenance provision in the event that Husband employment changed. They
did not agree to the modification here ordered. I think it is
error to modify such a provision in the absence of such an agreement.
In Voight v. Voight, 670 N.E.2d 1271, 1280 (Ind. 1996), our supreme court
held that a trial court should not modify a maintenance provision in a
negotiated property settlement agreement where it could not have ordered such a provision
in the absence of the parties agreement. I would extend that holding
to include all negotiated property settlement agreements.
I would reverse the decision of the trial court.
Indiana Code section 31-16-8-1 provides as follows:
Provisions of an order with respect to child support or an order for
maintenance ordered under IC 31-16-7-1 (or IC 31-1-11.5-9(c) before its repeal) may
be modified or revoked. Except as provided in section 2 of this
chapter, modification may be made only:
(1) upon a showing of changed circumstances so substantial and continuing as to
make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support
that differs by more than twenty percent (20%) from the amount that would
be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least
twelve (12) months before the petition requesting modification was filed.