Marriage of Zan v. Zan

ROBB, Judge,

concurs with separate opinion.

I respectfully concur in Judge Baker's 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 court's 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 31-15-7-8 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 Court's 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 Baker's conclusion that a trial court does have the authority to modify a spousal *1290maintenance 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@) without the parties' agreement. Therefore, I agree with Judge Baker that the trial court could properly modify Lawrence's maintenance obligation.