Kitfield v. Kitfield

227 S.E.2d 9, 237 Ga. 184, 1976 Ga. LEXIS 1193

• Court: Supreme Court of Georgia
• Decided: June 8, 1976
• Docket: 30738
• Status: Published

Opinions

Hall, Justice.

Appellant, former husband, sought modification of his alimony obligation under a divorce and alimony judgment that had incorporated a contract between him and his former wife, appellee herein, governing property and alimony rights between them. On her motion, the trial court dismissed the complaint on the ground that the contract language foreclosed future modification. Husband appeals and we reverse.

The contract language urged by wife appears in the preamble and in paragraph 15. The preamble stated that: "Whereas, the parties desire to settle all questions which could be appropriately settled in said case, except that neither of the parties hereto consents to a divorce.” (Sic) Paragraph 14 of the contract, executed in 1965 before a .divorce was granted, reads: "It is stipulated and agreed that this agreement is a complete and final settlement of any and all rights that either of the parties hereto may have against the other which could be appropriately settled in said case, but neither of the parties hereto consents to a divorce.” (Emphasis supplied.)

"A judgment for periodic payments of alimony or child support based on a contract between a husband and wife is subject to revision under Ga. L. 1955, pp. 630, 631, as amended (Code Ann. § 30-220 et seq.), upon a change in the income and financial status of the husband.” Grizzard v. Grizzard, 224 Ga. 42 (2) (159 SE2d 400) (1968). That statutory modification right, however, may be waived by appropriate contract language. Id.; Livsey v. Livsey, 229 Ga. 368 (191 SE2d 859) (1972).

The appellee-wife argues that modification of this judgment incorporating the parties’ contract would accomplish unconstitutional impairment of the obligation of contracts in violation of Code Ann. § 2-302. Long-standing authority shows that this argument is without merit. Technically, what is being modified is a judgment of the court and not a contract. Modification will be allowed unless the contract specifically waives the right to modification. This result rests on the conclusion that a statutory right to modification of an alimony judgment ought not to be disallowed unless the parties have by contract specifically so agreed. This is merely one of many perfectly valid examples of rights which courts will not find waived by contract absent very clear waiver language. This is not an impairment of contract, it is a rule for contract interpretation. Appellee’s assertion that the contract must expressly preserve the modification right or else it vanishes, is backwards; the right exists unless clearly waived. Ivey v. Ivey, 234 Ga. 532 (216 SE2d 827) (1975).

We must now decide whether the modification right has been waived. This is a question of intent. We must look for and find the parties’ "intent” in a document the language of which will support an argument either way. We cannot tell from this contract what the parties actually intended, or whether the draftsman even anticipated the possibility of a later suit for modification.

The language stipulating that settlement is being made of "any and all rights” that either "may have against the other which could be appropriately settled in said case” contains at least in its first part the present tense (rather than future tense) emphasis which we ruled in Garcia v. Garcia, 232 Ga. 869, 871 (209 SE2d 201) (1974) inadequate to waive the right to modification. We have recently ruled, in McLoughlin v. McLoughlin, 234 Ga. 259 (214 SE2d 925) (1975) that the term "full, complete and final settlement” does not, alone, have the effect of waiving modification. But on the other hand, the contract also attempts to sweep broadly in referring to all rights which "could be” now settled; and strictly speaking future alimony "could be” presently settled. Had this agreement read ". .. any rights which either may now or hereafter have against the other which could be appropriately settled in said case,” this contract would have waived modification rights even more clearly than the language in Mitchell v. Mitchell, 235 Ga. 101 (218 SE2d 838) (1975) (where we ruled that an agreement in full and final settlement of any obligation for alimony "of any kind and nature” waived modification) and almost as clearly as in Ivey v. Ivey, 234 Ga. 532 (216 SE2d 827) (1975).

Argued February 10, 1976 Decided June 8, 1976 Rehearing denied July 8, 1976. Westmoreland, Hall, McGee & Warner, C. Wilbur Warner, Jr., Edward E. Bates, Jr., for appellant. Jack P. Turner, Nelson G. Turner, Robert G. Wellon, for appellee.

On balance, though the question is close, we decide that waiver has not occurred because the language does not provide "in clear and unambiguous language, needing no parol explanation, that the appellant waived the right to modify the alimony award.” Ivey v. Ivey, supra, p. 532. In McLoughlin v. McLoughlin, 234 Ga. 259, 260 (214 SE2d 925) (1975) we discussed the waiver language which we found adequate in numerous prior opinions. In contrast to those phrasings, in the instant agreement the language is too vague to assure us that waiver of modification was intended.

Because appellee-wife cannot show with this contract language that modification was waived, it follows that this contract did not bar an action for statutory modification of the alimony judgment (Ivey v. Ivey, and McLoughlin v. McLoughlin, both supra); and the judgment dismissing the complaint was erroneous.

Judgment reversed.

All the Justices concur, except Jordan and Ingram, JJ., who concur in the judgment only, and Nichols, C. J., and Gunter, J., who dissent.