RICKMAN, J., REESE and MARKLE, JJ.
the trial court dismissed Robert Naar's petition to
modify alimony and granted his ex-wife's motion for
attorney fees under OCGA § 9-15-14 (b), Naar sought
discretionary review in this Court. We granted his
application for discretionary review, and this appeal ensued.
For the reasons that follow, we affirm the trial court's
dismissal of the petition for modification, but we reverse
the award of attorney fees under OCGA § 9-15-14 (b).
relevant facts are undisputed. Robert Naar ("Naar")
and Judith Naar were married in 1978 and divorced ten years
later. The final divorce decree incorporated the parties'
alimony agreement, which obligated Naar to pay alimony of $1,
500 per month until July 1992, and $2, 000 per month
thereafter until either one of them died or Judith remarried.
The alimony agreement contained a provision that waived the
parties' rights to seek an upward or downward
modification in alimony based upon a change in income or
financial status, as permitted by Varn v. Varn, 242
Ga. 309, 311 (1) (248 S.E.2d 667) (1978).
made the required payments until November 2017. After Naar
failed to make the November payment, his ex-wife filed a
contempt action. Naar filed a petition to modify his alimony
payments on the ground that he was now 88 years old, retired,
and living off a fixed income of $2, 953 per month, which
made the $2, 000 per month alimony payment unmanageable.
Although he acknowledged that the agreement included a
Varn waiver, he cited Justice Fletcher's
concurrence in Nelson v. Mixon, 265 Ga. 441 (457
S.E.2d 669) (1995), in support of his argument that, as a
matter of public policy and equity, courts should not enforce
such modification waivers in an inflexible manner., Judith
moved to dismiss the petition, arguing that Naar waived his
right to seek modification. She also requested attorney fees
under OCGA § 9-15-14 (b) because his request was
frivolous in light of the waiver. Although he conceded that
Varn required his petition be dismissed, Naar
opposed an award of fees on the ground that he was making a
good faith attempt to challenge the Supreme Court's
precedent in light of Justice Fletcher's concurrence.
Judith then amended her request for attorney fees to seek
fees as the prevailing party under OCGA § 19-6-19 (d) as
trial court dismissed the petition for modification,
explaining that, although it was sympathetic to the argument,
Naar had waived his right to seek modification as part of the
alimony agreement. The trial court also awarded attorney fees
under OCGA § 9-15-14 (b). Naar filed an application for
discretionary review, which this Court granted. He now
first argues that we should certify the following question to
the Supreme Court of Georgia: "Whether (a) exceptional
circumstances and/or (b) public policy concerns revealed in
Georgia law pertaining to the care and assistance of the
elderly, can preclude enforcement of an otherwise valid
Varn waiver." We cannot do so.
in a divorce action who is obligated to make periodic
payments of alimony for the support of the former spouse may
seek modification of the provision for alimony. OCGA §
19-6-19 (a). In Varn, however, the Supreme Court of
Georgia explained that "parties 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, 242
Ga. at 311 (1). Although the waiver must be express, there
are no "magic words" that must be used to show that
the parties waived any modification. Id.
the trial court, we are obligated to apply Supreme Court
precedent and conclude that the waiver in the alimony
agreement bars Naar's petition. See Ga. Const. of 1983,
Art. VI, Sec. VI, Par. VI ("The decisions of the Supreme
Court shall bind all other courts as precedents."). Any
remedy Naar seeks must come from the Supreme Court.
thus urges us to certify the waiver issue to our Supreme
Court. We are, of course, permitted to certify a question in
certain circumstances. See Ga. Const. of 1983, Art. VI, Sec.
V, Par. IV. But,
[i]f an answer by the Supreme Court of a question certified
to it by the Court of Appeals would constitute a decision of
the main case, the question cannot, under the Constitution,
be answered. A certified question of law and fact will not be
answered and, even if the question certified is one of law
only, it will not be answered if such answer would
necessarily control the decision of the case.
omitted.) Kelly v. Ga. Cas. & Sur. Co., 216 Ga.
834, 835 (120 S.E.2d 329) (1961). Moreover, we may not
certify a question to request that the Supreme Court review
one of its own decisions. See Cargile v. State, 194
Ga. 20, 23 (1) (20 S.E.2d 416) (1942); Adams v.
Powell, 67 Ga.App. 460, 462 (21 S.E.2d 111) (1942).
certifying the question would necessarily control the outcome
of the case and would essentially ask our Supreme Court to
review its own decision. As such, we may not use our
authority to certify the question, and we are therefore
constrained to affirm the trial court's dismissal of the
petition for modification.
his next two enumerations of error, Naar argues that the
trial court abused its discretion in awarding fees under OCGA
§ 9-15-14 (b) because it failed to make the requisite
factual findings and his petition was a good faith attempt to