This appeal involves the interpretation of a provision of a settlement agreement, incorporated into the divorce decree, providing for waiver of downward modification of alimony in the form of child support below a pre-determined “floor amount.” For the reasons set forth below we reverse the ruling by the trial court declaring that provision void. Appellant Kimbro H. Jones and appellee Lee Jones divorced in August 2000. The settlement agreement provided in pertinent part that appellant would have primary physical custody of the couple’s two children and that appellee would pay her $1,657.86 a month as “permanent child support.” The agreement recognized that this amount represented 28 percent of appellee’s gross monthly wages at that time and provided in Paragraph 7 that “in the event that appellee shall earn more in wages, then said child support shall be 28 of his increased gross wages earned, but in no event shall said child support be less than the $1657.86 per month.” Thus, appellee agreed to pay $1,657.86 or 28 percent of his gross income, whichever was greater. Paragraph 17 of the agreement then provided for the waiver of appellee’s right to seek downward modification of his support obligation. In so providing, the parties incorporated verbatim the waiver language set forth by this Court in Varn v. Varn , 242 Ga. 309 248 SE2d 667 1978, namely, that the parties agreed to “hereby waive their statutory right to future modifications, up or down, of the alimony payments provided for herein . . . .” Under Varn , use of this language “will be deemed to comply” with the requirement that “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.” Id. at 311 1. The trial court thereafter incorporated the settlement agreement into the divorce decree.1
In October 2002 appellee petitioned for modification of his child support obligation and in October 2004, after hearing evidence on the issues raised, the trial court rejected appellee’s challenge to the “floor amount” provision, recognizing that “the law provides you can agree to pay more than the guidelines,” and specifically finding that “there is no evidence of fraud, mutual mistake, overbearing or any other legal defense to that contract. It was a settlement contract with many issues that could affect the agreement, including property division, potential alimony, etc.; therefore, the contract stands as enforceable, so the floor or minimum amount stands.” The trial court thus required appellee to pay child support in the amount of 28 percent of his then-salary of $93,500.
