ASHWORTH v. BUSBY
S99A1311
Supreme Court of Georgia
February 28, 2000
March 24, 2000
272 Ga. 228 | 526 SE2d 570
SEARS, Justice.
SEARS, Justice.
Appellee filed a petition in the trial court seeking to modify his permanent alimony obligations to appellant. Appellant filed a motion fоr summary judgment, in which she argued that appellee had waived his right to seek such modification. The trial court denied appellant‘s request for summary judgment, and this Court granted her discretionary application. Finding that the parties’ settlement agreement contains a clear and express waiver of the right to seek a modification of alimony, we reverse.
In October 1984, the parties entered into a settlement agreement that purported to resolve all issues relative to thеir divorce, which was later incorporated into their final divorce decree. Pursuant to the incorporated settlement agreement, the appеllee ex-husband was ordered, among other things, to pay permanent alimony in monthly installments. Part 15 of the agreement states that it was intended by both parties “as full and final settlement of any and all rights or obligations either may have from or to the other... in any way incidental to their marriage to each other.” Part 13 of the settlement agreement reads as follows:
[Appellee and appellant] expressly waive any right which she or he may have to modify or revise this Agreement or to mоdify or revise any Judgment in any action providing for permanent alimony or to petition to modify or rescind any decree or judgment of which this Agreement is made a рart. Except as specifically provided herein, no modification or waiver of any of the terms hereof shall be valid unless in writing and signed by both of the parties. Thе failure of either party to insist upon strict performance of any of the provisions of which [sic] Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature.
In 1997, appellee filed a petition seeking a statutory downward modification of his alimony obligations, claiming that his income and financial status had declined since entry of the decree, while the
In Varn v. Varn,1 242 Ga. 309 (248 SE2d 667) (1978), this Court considered the effect of language that was also set forth in a settlement agreement and incorporated into a decree of divorce. The language examined in Varn stated that the divorced parties in that case considered their agreement “to be full and complete settlement” of all present and future claims each had against the other “arising out of the parties’ marital relationship.”2 Moreover, the Varn agreement provided that the parties consented that “no modification or waiver of any of the tеrms [in the agreement] will be valid unless made in writing and signed by both parties.”3
Based upon this language, the Supreme Court in Varn affirmed the trial court‘s dismissal of the ex-husband‘s action for a downward modification of alimony, because it concluded that in the incorporated settlement agreement, the ex-husband had waived his right to seek modification.4 In so doing, the Court adopted the following rule:
[P]arties to an alimony agreement mаy obtain modification unless the agreement expressly waives the right of modification by referring specifically to that right; the right to modification will be waived by agreement of the parties only in very clear waiver language which refers to the right of modification. . . . We do not intend to adopt any “magic words” test.5
This rule enunciated in Varn has been reiterated in subsequent cases holding that a divorce agreement may include a waiver of the right to seek modification so long as it employs clear waiver language that refers to that right.6
As made clear by our ruling in Varn, no “magic words” are required in order to effectuate a waiver of the right to seek a future modification of obligations incidental to a divorce. All that is required is “very clear waiver language which refers to the right of modification.”7 Varn cannot be construed as requiring that the right of modification being waived must be identified as “statutory.” It is true that we have previously upheld waivers in which the right of modification being waived has been identified by the relevant statute,8 but those cases do not impose such a requirement on future waivers, and we decline to adopt such a requirement here.
Concerning the ex-husband‘s other аrgument — that in order to be valid, his waiver must refer specifically to future claims seeking a modification of the alimony awarded — the settlement agreement in this matter does make specific reference to such claims by providing that, “Husband and wife expressly waive any right which she or he may have to modify or revise this Agreemеnt or to modify or revise any Judgment in any action providing for permanent alimony or to petition to modify or rescind any decree or judgment of which this Agreement is made a part.” When the settlement agreement between appellant and appellee was incorporated into the final divorce decrеe, it became the judgment of the trial court. The parties’ settlement agreement makes specific and unambiguous reference to the “right . . . to modify . . . any Judgment . . . рroviding for permanent alimony.” This language satisfies Varn‘s requirement that the waiver must refer to the right of modification, and appellee cannot claim that it is insufficiеntly specific to constitute a relinquishment of his right to seek a downward modification of his alimony obligations.9
Judgment reversed. All the Justices concur, except Carley and Thompson, JJ., who concur specially.
CARLEY, Justice, concurring specially.
I completely agree with the majority that Varn v. Varn, 242 Ga. 309 (248 SE2d 667) (1978), properly construed, controls this case and requires a holding that the waiver language here involved is viable, valid аnd effective. However, I cannot agree with the majority‘s conclusion in footnote 9 that Nelson v. Mixon, 265 Ga. 441 (457 SE2d 669) (1995), is distinguishable. For the reasons set forth in my dissent in Nelson, the holding therein is inconsistent with the undеrlying rationale of Varn. To the extent that Nelson is inconsistent with Varn and today‘s majority opinion, it should be overruled.
I am authorized to state that Justice Thompson joins in this special concurrence.
DECIDED FEBRUARY 28, 2000 —
RECONSIDERATION DENIED MARCH 24, 2000.
Stemberger & Associates, William J. Stemberger, for appellant.
Sanders, Haugen & Sears, Robin G. Mayer, for appellee.