Attorney for Appellant Attorneys for Appellee
Cynthia L. Garwood Jason W. Bennett
Lafayette, Indiana James A. Gothard
Bennett, Boehning & Clary
Indiana Supreme Court
Peggy J. Haville,
Appellant (Respondent below),
Appellee (Petitioner below).
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-
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
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:
1. Wife is permanently disabled, however, Wife receives
substantial sums from Purdue University and the Social Security
Administration. Those amounts are being taken into account in
determining the amount of spousal maintenance that is being paid to
2. Husband shall pay directly to Wife maintenance in the amount
per month for the remainder of her life.
Appellant's App'x. at 11 (emphasis added). The final section of the
agreement included the following among its fifteen numbered paragraphs:
1. In consideration of all promises contained in his agreement,
the parties shall release 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, or otherwise, excepting all
of the claims and rights of each party created and outstanding against
the other pursuant to the terms of this agreement. It is the intent
hereof that each party hereby accepts the provisions of this agreement
in full release and settlement of any and all claims and right [sic]
against the other. It is the further agreement of the parties that
the provisions of this agreement shall inure to the benefit of, and be
binding upon, the heirs, executors, administrators, and personal
representatives of the parties hereto unless otherwise provided
. . .
3. This is an agreement to settle all property and spousal
between Husband and Wife in the event a dissolution shall be entered
by the Court. . . .
Id. at 13, 14 (emphasis added).
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.
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
ground—incapacity, caregiving, or rehabilitation—on which the court could
have ordered the same maintenance in the absence of agreement." Id. at
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.
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 addition, 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 payment 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
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.
Shepard, C.J., concurring in result.
I think the majority correctly affirms the trial court’s decision
that the order for maintenance entered by the court in this case at the
request of the parties is not subject to revision except by their mutual
consent. On the other hand, I think the grounds on which this holding
rests wrongly decide an important subsidiary question: does Indiana law
authorize orders for maintenance that continue even after the obligor dies?
As it is with many uniform acts, Indiana was an early adopter of the
Uniform Dissolution of Marriage Act.
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 (1977).
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.
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) terminated 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
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
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 health.
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 husband’s 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.
 The death of an obligor is not a structural impediment to such an
obligation. With respect to child support, for example, provisions for
child support are not terminated by the death of the obligated parent.
Ind. Code § 31-16-6-7(a)(2).
 While not addressed and answered in Voigt, the question is clearly
resolved by statute. As noted above, the statutory authorization for
incapacity maintenance provides that such an order is "subject to further
order of the court." Ind. Code § 31-15-7-2(1). Moreover, Indiana Code §
31-15-7-3 expressly declares that provisions of an order for maintenance
authorized by statute "may be modified or revoked" upon specified grounds,
one of which is "a showing of changed circumstances so substantial and
continuing as to make the terms unreasonable."
 The court may grant maintenance “only if it finds (1) that the spouse
seeking maintenance lacks sufficient income and property to provide for his
reasonable financial needs and (2) that the spouse seeking support is
unable to support himself through employment . . .” Report of the Civil
Code Study Commission, Proposed Dissolution of Marriage Act § 210 (1970).