*1 sodomy Appellant posits 3. that enforcement of the statute couple against consenting heterosexual violates the Ninth Amend- protection privacy ment’s and intimate аssociation. We ap- do not reach this issue because no factfinder has established that pellant’s 16-year-old participant was a stepdaughter willing State, Ray State, v. Gordon v. supra; supra. acts. See Appellant 4. the Due Pro- maintains that OCGA violates Equal cess and Protection Clauses of the Fifth and Fourteenth selectively per- Amendments becаuse it is unmarried enforced sons, prosecuted engaging and “victims” are not for the consensual conduct. Since has not the actual established the record law, sodomy proved manner of enforcement of the he has not his con- State, Ray selectively supra; tention that the statute enforced. State, Gordon v. All the Justices concur. 1995.
Mundy Gammage, Crаne, B. Jean for Osborne, Wilson, Attorney, James N. R. District Donald Assis- tant Attorney, District
S95A0343. NELSON v. MIXON.
Benham, Presiding Justice. by
The in August were divorced incorporated the terms of a settlement executed agreement, parties еxpressly their waive[d] “[t]he of the terms of this In April asserting a “substantial downward status,” sought economical financial [his] periodic support payments child he was required pay judgment. Appellant/ under the terms of parent custodial sought dismissal of the modification action on the ground statutory right to seek had waived tion. appellant’s summary judgment The trial court denied mоtion for review, granted but certified the and we her for immediate interlocutory review. periodic child payments parent; belongs to the minor child and not to the custodial therеfore, waive, parents parent the custodial cannot cannot increases in child pay- bargain away child’s Livsey Livsey, ments. “Children property, not legislative are and absent a clear declaration other away by parents. wise their not be bartered Worthington Worthington, [Cits.]”
(1983). However, obligor parent may or her a reduction Forrester v. periodic support payments. *2 (244 345) 34, (1978). SE2d Inasmuch as legally judgment right was able to waive seek the future a reduction in the child obligation, we must language incorporated parties’ determine whethеr into the judgment divorce right is sufficient to authorize a waiver of the obligation. seek (248
2. In (1978), SE2d court announced that alimony to an agreement may obtain modification un- agreement expressly
less the right waives the of modification by referring specifically right... very to that clear waiver .... language . . . finding waiver without ex- [D]ecision[s] press right alimony modification will not be follоwed. ...
In so doing, the court drew to availability a close an era wherein the strictly, was limited modification and endorsed an recognized of modification unless availability speсific right modify had been expressly waived. Id. The Varn court presented bench and example bar with an of a waiver which would comply with their holding: parties hereby ‘The statutory right modificаtions, down, to future up alimony payments or provided Id., for herein. . . .” 242 Ga. at n. 1. right Waiver of the to seek modification has since been found when the agreement incor- porated into the divorce stated that par- one or both of the ties specific waived a Schwartz, Schwartz v. right modify. 423) (1986) (husband waived right to modification alimony when the right waived their to file an modify action to the obligation Daniel, Daniel v. pay alimony); Ga. 849 (parties’ express waiver of “their modification alimony payments” future con- stituted a waiver under Beard, Beard v. supra); (1983) Gа. 449 (parties’ “any waiver of and all they may have under to seek a revision [OCGA § 19-6-19] of the Judicial Decree respect permanent with alimony for Wife” constituted a waiver of the alimony modification of the wife, to the but did not constitute a waiver of the seek support payments). See also 85) (1989) (the waiver of the “statu- tory right sufficiently to a modification” was to constitute a award); waiver of the Bren- modification of the izer v. 250) (1987) (no was upon found because the relied waiver did not refer to or Parker, Parker v. waiver of that right); 451) (1985) (the suggested the statement “the Wife hereby waives her right to future might modifications” waiver). stitute a
The language upon by appellant as constituting an to seek downward modification of his obligation neither referred award, seek appellee’s nor described result, of modification “statutory.” as As a did not waive obligor parent’s right to seek a downward modification of his obli- gatiоn under either Schwartz cases, lines of trial court did not err when it summary denied on the issue.
Citing parties’ dissent asserts that waiver of *3 petition any any modification of of the terms” of the settlement enough is to constitute a valid wаiver of appellee’s ability to seek a sup downward modification of his child port obligation. position premised That assumption on the only petition for party modificаtion which a “right” has a to file is one seeking change a in spousal support child or under OCGA 19-6-19. § judgment may to a divorce exercise a (b) under OCGA petition and file a the visitation (Williams the divоrce 670) (1993)); petition to terminate visitation rights (Arnau in awarded 116) (1993)); petition modify or a custody. 580) (1990). mere reference “the for modification” specific does not meet the Varn v.
ity requirеments concur, All the except Hunstein, Justices Carley JJ., and Thompson, who dissent.
Fletcher, Justice, concurring.
I agree party may that a waive the to seek modifi- cation of or downward support through clear language specifically identifies the being waived. write my may concern that the unduly courts render harsh decisions if flexibility we allow no in Sup- of this rule. port decades, obligations may sрan party may or even a lifetime. A
agree support obligations to a waiver of the emotionally charged foresight circumstances or without to consider may party’s how the own circumstances uncertain economic Additionally, support obligations times. differ from other debts in may contempt obligation through creditor enforce and, generаlly, bankruptcy provide will not relief from these ob- reasons, ligations.1 public policy For these concerns counsel an inflexible waivers of the to seek revision support. рarty’s or child Where a financial circumstances control, changed dramatically beyond party’s have so for reasons party’s ability comply or where the financial tеrms exceed a from agreement’s conception, in equity a court should be able fact, needs, along determining sider that with the whether the best interests of all the Justice, dissenting. Carlеy, my opinion, the majority misapplied has 667) (1978) progeny and its in concluding that herein did not waive his to seek modification under
OCGA 19-6-19 pay alimony his minor children.
In this the agreement provided as follows: “The ex pressly
terms оf this
cor
rectly
concludes that while the child’s
to seek increases in the
amount of
paid
support may
waived,
to be
for child
not be
obligated parent may
waive the
to seek a downward modifica
alimony.
tion of such
Compare Livsey
Livsey,
with Forrester v.
However, the majority
purports
then
to follow Varn in determin-
ing that
upon by
herein was not suffi-
cient to
appellee’s right
to seek a decrease in
his child
because the
“neither referred
right to seek
alimony award,
nor
appel-
described
*4
lee’s
of
‘statutory.’
443.)
modification аs
(Majority opinion, p.
it
majority
would seem that
holding
order for a
effective,
waiver to be
the language
specify
must
ex-
actly
what
However,
Geraghty
waived.
85) (1989),
670) (1993); Arnau v. (1993); as illus- trative of the of a to file a for modification of other sоme of a divorce providing decree than one for ali- However, mony. really begs because all of the cases cited involve the modification or termination of child custody underlying or visitation and the to initiate the proceed- statutory provisions ing each case arose from the Chapter Georgia Title 19 of the Office Code If majority’s Annotated. premise correct, were this Court would not have found “statutory to a modification” to be sufficient. (Emphasis supplied.) Varn, this Court adopt any stated: “We do not intend to words’ test.”
‘magic supra at 311. in reaching today, the result it does adopted “example” the Court has indeed words” which must be footnote “magic used to effect a to seek modification. Because the Court is doing what it said it would not do in respectfully must dissent.
I am authorized to state that Justice Hunstein and Justice Thompson join in this dissent. Souther, Rountree,
Rountree & George M. Leaphart Johnson, Leaphart, J. Alvin
S95A0493. LESTER THE STATE.
Hunt, Chief Justice. Janice Lester drove getaway car for William Luther Smith in