concurring in part and dissenting in part with separate opinion.
I agree with the majority that the order modifying maintenance should be reversed. I respectfully disagree that the matter should be remanded to the trial court for further proceedings.
Upon the evidence presented at the hearing, the trial court determined that Husband’s original obligation to provide medical insurance until Wife was eligible for Medicaid or Medicare should be modified. That order may have been based upon the trial court’s determination that Husband’s circumstances had changed significantly, as that was the primary claim upon which his request for modification was premised. As Wife suggests, the modification may also reflect the trial court’s determination that she failed to attempt to apply for Medicaid or to secure her own medical insurance coverage. In any event, the trial court determined that Husband’s obligation to provide Wife’s medical insurance would cease at the end of July 2007. In reversing the modification order, the majority devotes most of its discussion to the question of whether a trial court may order a non-obligor spouse to spend down assets in order to accelerate Medicaid eligibility. I agree with the conclusion that, under Lowes v. Lowes, 650 N.E.2d 1171 (Ind.Ct.App.1995), it cannot. The trial court did not order Wife to do that in this case, which the majority recognizes in noting that a spend-down is “not strictly present”, but is one among “several possible eventualities”. Op. at 286.
Which brings me to the point upon which I depart from the majority’s decision. We have reaffirmed that the law does not permit a trial court to order a non-obligor spouse to spend down assets in order to become eligible for Medicaid, at least as it relates to determining spousal maintenance, and we have observed that such may have been at least partially included in the trial court’s decision to modify. As a result, we have reversed the modification. I agree with reversal, but disagree that remand is required. The trial court conducted a hearing at which the parties presumably .presented all of the evidence relevant to Husband’s petition to modify. The majority’s decision does not raise new matters that require new or different evidence than has already been presented. Rather, the case still turns on the same questions originally addressed by the trial court, viz., (1) have Husband’s financial circumstances changed so as to render the original order unreasonable, and/or (2) has Wife acted in such a way as to delay the “until she qualified for Medicare or Medicaid” condition that will terminate Husband’s obligation to provide medical insurance.
I believe the materials before us are sufficient to permit a resolution of the matters appealed without need for remand. With that in mind and to that end, I agree with Wife that Husband did not prove that his circumstances have changed so as to justify granting his request for modification. Thus, question (1) above must be resolved in Wife’s favor. Our clarification as to the continuing viability of the principle discussed in Lowes and its applicability in this case also means that question (2) above must be resolved in Wife’s favor. Therefore, I would reverse the order modifying support and let the matter end there.