concurring in part and concurring in result.
I concur in part and concur in the result. The only part of the principal opinion in which I do not concur outright is its discussion of paragraph three of Point I. The principal opinion states it is not necessary to decide whether the statement in the separation agreement that the non-modifiable maintenance that is awarded continues “until terminated by action of law” would authorize the trial court to terminate maintenance. The principal opinion declines to decide that issue. In my opinion the disposition made of paragraphs one and two of Point I amounts to a denial of paragraph three on the merits. I would so hold.
The trial court’s authority to alter maintenance is established by § 452.370.1.1 It permits modification under certain circumstances “[e]xcept as otherwise provided in subsection 6 of section 452.325.” Section 452.325.6 states, “Except for terms concerning the support, custody or visitation of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.” The separation agreement in this case specifically states the maintenance provided by its terms is non-modifiable. As the principal opinion holds with respect to paragraph one of Point I, the maintenance in this case is not subject to modification under the terms of § 452.370.1.
In determining the alleged error set forth in paragraph two of Point I, the principal opinion holds § 452.370.1 is not subject to change by supreme court rule in that the statute establishes substantive rights. Thus, Rule 74.06(b)(5) does not permit a court to order a change in the contractual maintenance.
In my opinion, the phrase “until terminated by action of law” is surplusage and, in the context in which it appears, meaningless. I would deny paragraph three of Point I on the merits.
. References to statutes are to RSMo 1994.