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Naar v. Naar

Court of Appeals of Georgia, Second Division

April 29, 2019

NAAR
v.
NAAR.

          RICKMAN, J., REESE and MARKLE, JJ.

          MARKLE, JUDGE.

         After 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).

         The 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).

         Naar 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.[1] 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 well.

         The 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 appeals.

         1. Naar 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.

         A party 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.

         Like 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.

         Naar 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.

         (Citations 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).

         Here, 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.

         2. In 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 ...


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