Garcia v. Garcia, 29033
| Decision Date | 01 October 1974 |
| Docket Number | No. 29033,29033 |
| Citation | 209 S.E.2d 201,232 Ga. 869 |
| Parties | Gordon Kenneth GARCIA v. Betty D. GARCIA. |
| Court | Georgia Supreme Court |
Westmoreland, Hall, McGee & Warner, P. Joseph McGee, Paul R. Jordan, Atlanta, for appellant.
Syllabus Opinion by the Court
Appellant and appellee were divorced in September 1971, the decree incorporating an agreement providing for $150 per month per child for child support and $500 per month for alimony. In September 1972, appellant husband filed his petition seeking a decrease in alimony and child support payments due to a change in his financial circumstances. After a hearing, the trial court reduced the child support payments to $75 per month per child but found 'as a matter of law that it lacks jurisdiction to modify the decree . . . and agreement . . . relative to payment of alimony' to the appellee.
Appellant appeals from the overruling of his motion for new trial, contending that the trial court erred in holding that it lacked jurisdiction to modify the decree relative to payment of alimony to the appellee. Held:
1. A judgment for periodic payments of alimony and child support is subject to revision by either party upon 'showing a change in the income and financial status of the husband.' Code Ann. § 30-220 et seq. However, this court has held many times that as to permanent alimony a decree cannot be modified under the provisions of this code section where there is an agreement between the parties, incorporated in the decree, which waives the right of modification. Grizzard v. Grizzard, 224 Ga. 42, 159 S.E.2d 400; Ferris v. Ferris, 227 Ga. 465, 181 S.E.2d 371; Steffner v. Steffner, 228 Ga. 189, 184 S.E.2d 575; Harrison v. Harrison, 228 Ga. 564, 186 S.E.2d 884; Eddings v. Eddings, 230 Ga. 743, 199 S.E.2d 255, and Johnson v. Johnson, 232 Ga. 103, 205 S.E.2d 270.
The agreements in the above stated cases have included such waiver language as a 'release from all claims she may have' (Grizzard); 'parties are desirous of settling all questions relative to temporary and permanent alimony' (Ferris); parties 'expressly waive . . . right . . . to modify or revise this agreement' (Steffner); 'neither party shall have any claim against the other for any reason whatsoever' (Harrison); parties 'release and relinquish . . . any and all claims' which either 'has or might have' against the other (Eddings); 'each of the parties hereby releases the other from all claims or demands of every kind' (Johnson).
It appears that in this line of cases the agreements contained language of an express waiver or release which estopped either party from seeking a subsequent modification.
The only language in the agreement in the present case touching on the question of waiver is as follows: 'Whereas, the parties are now desirous of settling...
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