Brenizer v. Brenizer

360 S.E.2d 250, 257 Ga. 427, 1987 Ga. LEXIS 903

Opinions

Bell, Justice.

This is an appeal by a husband in his suit seeking a modification of alimony payments. The trial court dismissed the petition for modification on the ground that the right to modify had been waived by the written agreement between the parties which was incorporated into their final divorce decree. The portion of the agreement which the trial court was called upon to consider is as follows: “10. MODIFICATION. The provisions of this agreement shall not be modified or changed except by mutual consent and agreement of the parties, expressed in writing.” The wife contends that the parties, through their settlement agreement, waived their statutory right to seek modification of alimony. We disagree.

“[P]arties to an alimony agreement may 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.” Varn v. Varn, 242 Ga. 309, 311 (1) (248 SE2d 667) (1978). In the present case the waiver language in the agreement does not refer to the right of modification of alimony, or to any waiver of that right, and is therefore not sufficient to meet the test established in Varn v. Varn.1 Accordingly, we reverse the order of the trial court.

Judgment reversed.

All the Justices concur, except, Smith, J., who dissents.

Footnotes

1

See Varn v. Varn, supra, 242 Ga., fn. 1 at 311, for language which this court suggested would be sufficient to constitute a waiver of a parties’ right to seek a modification of alimony. Also see Daniel v. Daniel, 250 Ga. 849 (2) (301 SE2d 643) (1983), and Beard v. Beard, 250 Ga. 449 (298 SE2d 495) (1983), for cases in which this court held that the language contained in the parties’ settlement agreements was sufficient to meet the test of Varn v. Varn, supra.