Rush, C.J.
Nearly twenty years ago, our decision in Voigt v. Voigt reserved the question of whether a court may modify a maintenance obligation that originates in a settlement agreement, but rests on grounds such as incapacity that would have permitted an identical award even in the absence of an agreement. 670 N.E.2d 1271, 1280 n.13 (Ind. 1996). That question poses a choice between a rock and a hard place: As Voigt recognized, permitting modification may unjustly upend a delicate balance the parties struck in negotiations with the expectation of finality. Id. at 1278 & n.11. Yet prohibiting it may cause undue hardship to a party who faces unforeseen circumstances.
We conclude that prohibiting modification will cause harsh results somewhat less frequently than the alternative, making it the better of those two unsatisfactory choices. We therefore hold that any maintenance provision in a settlement agreement, regardless of its grounds, is modifiable only if the agreement so provides. But this agreement does so provide—echoing the language of the incapacity maintenance statute by making the agreed maintenance amount subject to “further order of the court” in the alternative to “agreement of the parties.” We therefore reverse the trial court and remand with instructions to apply the incapacity maintenance statute’s “substantial and continuing change in circumstances” standard to the evidence presented at the modification hearing.
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As the foregoing cases illustrate, issues involving (or at least potentially involving) Voigt’s reserved question have arisen with some frequency, and we believe it is time to settle the issue. We therefore begin by analyzing whether the parties’ agreement actually presents the reserved question—that is, whether the trial court could have made an identical maintenance award had the parties not agreed to it—and then consider the policy implications of how that question might be answered.
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We acknowledge that either possible outcome in this case carries the potential for harsh results. If we presume the agreement to be non-modifiable unless it specifies otherwise, parties may be deprived of relief in the face of unforeseen changes (for recipients, a deterioration of their condition or increased expenses; for payors, lost income or other financial catastrophe). But the alternative risks pulling the rug out from under parties who legitimately thought their negotiations had brought finality and predictability during the tumultuous time of a divorce.
Now that we are squarely confronted with the question, we find Chief Justice Shepard’s freedom-of-contract concerns expressed in Haville (echoing the full Court’s concerns in Voigt) to be the most compelling. In our judgment, presuming the contract to be modifiable would defy grown-ups’ freedom of contract more frequently than it would save disabled spouses from being stuck with an inadequate award or able-bodied spouses from an award that had become oppressive. Indeed, Voigt’s concerns about “rupturing delicate consent” are implicated particularly strongly here. Barbara is seeking to modify the parties’ initial bargain before she has ever had to perform it and before Michael has even once received the benefit of it. Modifying an agreement while it is still executory makes the original terms almost illusory, and it seems unrealistic to infer from the absence of a non-modification provision in the Addendum that Michael would agree to a deal that might never be performed before being changed over his objection. We therefore hold that even when a court could have unilaterally ordered an identical maintenance award, we will presume the parties intended their agreement to be final and non-modifiable unless they specifically provided otherwise.
But here, the Addendum does contain precisely such a provision, calling for Barbara’s payments to continue “until further order of the court or agreement of the parties” (emphasis added). Because “further order of the court” is expressed in the alternative to “agreement of the parties,” we should construe the contract in a way that gives each term independent meaning, rather than rendering one surplusage. E.g., Whitaker v. Brunner, 814 N.E.2d 288, 294 (Ind. Ct. App. 2004), trans. denied (“We read the contract as a whole and will attempt to construe the contractual language so as not to render any words, phrases, or terms ineffective or meaningless.”). And here, we would be hard pressed to ascribe any independent meaning to the “further order of the court” provision unless it serves the same purpose as similar language in the incapacity maintenance statute, which permits modification of such awards by making them “subject to further order of the court.” I.C. § 31-15-7-2(1); Haville, 825 N.E.2d at 378 n.2. Accordingly, maintenance under the Addendum is modifiable by the Addendum’s own terms, even though it would not be otherwise.
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Conclusion
Reserving a question, as we did in Voigt, is based on our sense that the issue viewed head on may not align with our initial leanings. That is certainly true here—that despite intimating otherwise in Haville and Ryan, we believe our conclusion in Voigt holds even when a court could have issued an identical maintenance award in the absence of the parties’ agreement. That solution, though imperfect, is preferable to the alternative, which we believe would defy freedom of contract more often than it would save parties from undue hardship. If divorcing parties want to make judicial modification available for their maintenance agreements, they must say so in their contract—as the parties did here.
We therefore reverse the trial court’s judgment and remand with instructions to consider whether, under Indiana Code section 31-15-7-3(1), the evidence established a substantial and continuing change in circumstances that makes the Addendum’s agreed maintenance award unreasonable, and if so, to then determine an appropriate modification.
Dickson, Rucker, David, and Massa, JJ., concur.