(dissenting). I would affirm the decision of the court of appeals, which held that the parties to this divorce could not, by this agreement, prevent a circuit court from modifying maintenance payments.
In their 1978 divorce agreement the parties stipulated that the husband would pay the wife $250 per month as maintenance and that the entire estate consisting of a house, two cars, and personal effects would be divided substantially equally. They further stipulated that the husband was to pay debts and obligations incurred before the commencement of the divorce proceedings; neither the stipulation nor the judgment stated the amount of debt involved. Finally the parties stipulated that maintenance and property division payments were to be "permanent and in lieu of any further or additional maintenance payments, except said payments shall terminate upon remarriage of the wife."
The wife now seeks modification of maintenance because of changed circumstances. The court of appeals held that the circuit court retains the power to modify maintenance in this case and gave three reasons for its decision.
*117First, the legislature expressly allows a circuit court to modify maintenance and specifies only two circumstances under which the circuit court may not modify maintenance. Because the stipulation in this case does not fall under either of these two statutory exceptions, the stipulation cannot bind the circuit court.1
Second, the public policy of this state, as reflected in the divorce statutes over the years, is to allow the courts to modify maintenance to protect both spouses should circumstances change after the judgment is entered. A stipulation depriving the circuit court of the power to modify maintenance that is otherwise modifiable under the statutes contravenes this public policy.
Third, because the stipulation is contrary to public policy, the doctrine of equitable estoppel does not apply in this case. Rintelman v. Rintelman, 118 Wis. 2d 587, 596, 348 N.W.2d 498 (1984).
The issue presented in this case is how should the courts treat the parties' stipulation (incorporated in the judgment) for payments that do not fit comfortably within the statutory categories of property division, waiver of all maintenance, indefinite term maintenance, and limited term maintenance. The court has not, in my opinion, developed a cohesive approach to the question of the parties' ability to establish their own creative resolutions to the issue of maintenance.
*118Each of our prior cases, upon which the majority relies, turns on the terms of the parties' agreement. The terms of the agreement in this case differ from those in the prior cases. The cases upon which the majority relies are therefore distinguishable and do not provide the answer to the question raised in this case.2 Given our *119prior cases and the majority decision, I believe the legislature might wish to reexamine divorcing parties' power to create their own types of maintenance payments and the court's power to modify the parties' agreements upon changes in circumstances. See secs. 13.83(l)(c)l and 13.93(2)(d), Stats. 1989-90.
*120For the reasons set forth more fully in the opinion of the court of appeals, In re Marriage of Nichols, 156 Wis. 2d 503, 457 N.W.2d 492 (1990), I dissent.
Section 767.32(1), Stats. 1989-90, provides that maintenance payments may be modified "on the petition ... to show cause of either of the parties . . .." There are two exceptions: (1) a judgment that waives maintenance payments for either party shall not be revised or altered in that respect, and (2) when the period during which limited maintenance has been paid has terminated, limited maintenance payments may not be modified. Fobes v. Fobes, 124 Wis. 2d 72, 77-78, 368 N.W.2d 643 (1985).
Button v. Button, 131 Wis. 2d 84, 388 N.W.2d 546 (1986), involved property division only, not maintenance.
The stipulation in Marriage of Rintelman v. Rintelman, 118 Wis. 2d 587, 348 N.W.2d 498 (1984), did not state that maintenance was not modifiable by the court; it provided merely that the parties agreed that the husband would not seek cessation of maintenance payments on the ground that the wife had remarried. The statutes do not permit a circuit court to order maintenance payments to be made after remarriage of the recipient spouse. The court concluded that the husband was estopped from asking that his payments cease when his former wife remarried. Rintelman does not address the question whether the circuit court may modify the stipulated amount of maintenance if there is a substantial change of circumstances.
As the majority opinion recognizes, majority op. at 112, n.ll, 469 N.W.2d at 625-626, n.ll. The limited term (63 months) "section 71" payments in Ross v. Ross, 149 Wis. 2d 713, 439 N.W.2d 639 (1989), were a special type of payment. Section 71 payments, referring to sec. 71 of the Internal Revenue Code, were interspousal payments the parties contracted for over and above the division of property, payable over a limited time period; the parties agreed that the payments were not to be modified; the payments looked like property division under state law but were treated as spousal maintenance for federal tax purposes. In Ross, both the husband and the wife expressly waived any rights they had under sec. 767.32(1) at the time of divorce or thereafter to claim or receive maintenance payments. Brief of Petitioner-Respondent in Ross v. Ross at p. 8. The court said the parties were bound by their agreement and would not modify the payments because of change of circumstances.
See also Wright v. Wright, 92 Wis. 2d 246, 258-63, 284 *119N.W.2d 894 (1979), holding that the circuit court could not modify stipulated sec. 71 payments when the parties agreed to waive their claims to maintenance.
In Fobes v. Fobes, 124 Wis. 2d 72, 368 N.W.2d 643 (1985), the divorce judgment incorporated the parties' stipulation for payment of maintenance to the wife for three years or until the death or remarriage of the wife before the end of the three year period. The court held that the circuit court could modify the maintenance payments during the term of payments upon a finding of changed circumstances.
This case, in contrast to the cases described above, does not involve sec. 71 limited term payments or any form of limited term maintenance payments. The parties in this case did not waive their claim to maintenance. In this case the parties specifically bargained for maintenance to be paid until the death of either party or the remarriage of the recipient spouse.
The following precepts can be derived from the cases: First, the court will enforce the parties' stipulation that extends maintenance payments beyond a time that the court could order maintenance payments. See, e.g., Rintelman. Second, if the parties expressly agree to waive maintenance, as the divorce statute allows the parties to do, and stipulate to limited term payments the court will not modify the stipulated limited term payments, even if there has been a change of circumstances. See. e.g., Ross and Wright. Third, if the parties do not expressly waive maintenance and the parties stipulate to limited term payments, the court retains the power to modify stipulated limited term payments during the term of the payments if there is a change of circumstances. See, e.g., Fobes.
None of these precepts governs this case.