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Attorney for Appellant

Landyn K. Harmon
Eynon Harmon Rocker & Glover, P.C.
Columbus, Indiana
Attorneys for Appellee

Dan A. Patterson
William M. Nash
Jones Patterson Tucker & Grogg
Columbus, Indiana
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                        IN THE INDIANA SUPREME COURT

STUART, Donald J.,

            Respondent-Appellant,

            v.

PHILLIPS, Alice Jean (Stuart),

            Petitioner-Appellee.
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Supreme Court No.
03S01-0009-CV-532

Court of Appeals No.
03A01-9906-CV-185
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              Appeal from the Bartholomew Superior Court No. 2
                    The Honorable Norman D. Curry, Judge
                         Case No. 03D02-9506-DR-102

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                           ON PETITION TO TRANSFER

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                            [September 15, 2000]

Per Curiam.

      This case comes before the Court on a petition to transfer filed by
Alice Jean Phillips (Stuart) (“Wife”) and presents the question reserved in
Voigt v. Voigt, 670 N.E.2d 1271 (Ind. 1996), concerning the authority of a
court to modify a spousal maintenance agreement.

      In Voigt, we held that courts have no statutory authority to modify a
maintenance obligation that arises under a previously approved settlement
agreement if the court alone could not have initially imposed an identical
obligation had the parties not agreed to it.  670 N.E.2d at 1280.  However,
we expressly reserved 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, by
statute,  could have ordered the same maintenance absent an agreement.  Id.
at n.13.

      When the Stuarts’ marriage was dissolved, Donald Stuart (“Husband”)
agreed to pay Wife maintenance, and the agreement was incorporated into the
final decree.  A few years later, Husband petitioned to modify the
maintenance agreement.  Wife moved to dismiss the petition on grounds the
trial court lacked authority to modify the agreed maintenance obligation,
and she cited our decision in Voigt.  The trial court dismissed Husband’s
petition.

      The Court of Appeals reversed.  Stuart v. Phillips, 723 N.E.2d 463
(Ind. Ct. App. 2000).  The Court of Appeals concluded “that by expressly
reserving the question of whether a court may modify a settlement agreement
grounded in incapacity, caregiving, or rehabilitation,” we had “created an
exception to the rule that courts may not modify settlement agreements
incorporated into the final decree.”  Stuart, 723 N.E.2d at 467.  From
this, the Court of Appeals held that “if the provision falls within the
narrow parameters of maintenance orders that a court may impose without
agreement of the parties, then the agreement may be subject to modification
under the exception created by our supreme court in Voigt.”  Id. (footnote
omitted).

      However, Voigt expressly left open the question whether the court may
take this  action.  We therefore disagree with the Court of Appeals that
Voigt resolves the issue.

      While this case pended on transfer, the parties filed a joint motion
to dismiss the appeal, stating that their controversy had been settled and
that Wife had filed a release of judgment in Bartholomew Superior Court.
Because the parties have settled their dispute, it is not necessary to
decide the question reserved in Voigt, and the question remains open.

      Accordingly, we grant transfer and vacate the Court of Appeals
opinion.


All Justices concur.
