Case Watch: For Mediators
following case analysis is part of a regular series we publish to help you
broaden your knowledge of rulings of Georgia’s appellate courts that may
affect your practice. Remember: mediators should not give legal advice
CaseWatch for Mediators: “Magic Words” Can Make or Break Mediated Agreements
Magic words. We all know courts require specific words to enforce or to not enforce specific obligations. For example, under the child support guidelines, failure to set forth the words of deviation under Schedule E will render the deviation void. This is so even if the parties have agreed to the deviation.
As mediators, we recognize that the wrong word or a missing word can also destroy the enforceability of the parties’ negotiated agreement.
The Dean case is an example of how a seemingly simple request can fail when the right magic words aren’t used. The divorcing parties in Dean sought to do what many parties want; rather than return to court each year to adjust child support, they agreed to an annual recalculation of child support after January 1 each year based solely on the husband’s salary income. They further agreed that the newly recalculated amount would be retroactive to January 1 of that year.
The Dean parties stipulated in their agreement that, “in no event shall the annual recalculation of Husband’s child support result in him paying less than the above stated amount of $2,290 per month to Wife for the support of the two minor children.”
As always, when unforeseen events occur, the game changes and legal loopholes grow. Husband suffered at least a 25% loss in income and filed for downward modification of child support. This reduction is permitted under O.C.G.A. 19-6-15 (j), but it wasn’t permitted under their agreement. Wife filed to dismiss her husband’s motion and asked the court to hold him to the agreement amount of $2,290 per month.
Mediators know that a deal is a deal. Besides that, it’s in writing and it’s an order of the court. So it can’t be changed, right? Surprisingly, wrong, according to the Georgia Supreme Court.
The magic word that nullified the parties’ original child support agreement on appeal was “waiver.” The legal analysis in the unanimous decision by the Supreme Court went like this:
1. Child support is a form of alimony.
2. Alimony can be modified unless the agreement expressly waives the right of modification by referring specifically to that right.
3. 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.
4. Dean did not satisfy the clear waiver language.
Because the waiver language was absent in the parties’ agreement, the court concluded that they did not intend to forbid a statutory downward modification of husband’s child support obligation
The justices also stated that a court should not imply any waiver where none is specifically mentioned. If the parties want a waiver, they must follow the “straightforward” rule the court adopted more than 30 years ago in Varn v. Varn, 2542 Ga. 309, 311 (248 S.E. 2d 667) (1978). That is, parties seeking waiver must use the “verbatim” language from Varn, the court said.
And now all mediators know the importance of the legally defined 30-year-old magic word “waiver.”