dissenting.
As the provision of the settlement agreement upon which the majority relies was properly declared void by the trial court, I respectfully dissent.
The parties to a divorce are permitted to waive their statutory rights to modify alimony. See Varn v. Varn, 242 Ga. 309 (248 SE2d 667) (1978). However, parents in a divorce action cannot waive the rights of their children to seek increases in child support payments, although they can waive their own rights to seek a decrease in such payments. Nelson v. Mixon, 265 Ga. 441, 441-442 (1) (457 SE2d 669) (1995); Livsey v. Livsey, 229 Ga. 368, 369 (191 SE2d 859) (1972). Such a waiver in a settlement agreement must be express, specific, and refer to the right being waived. Nelson, supra at 442-443 (2); Varn, supra; Livsey, supra.
The settlement provision in which the majority finds a waiver states: “[t]he parties hereby waive their statutory right to future modifications, up or down, of the alimony payments provided for herein...(Emphasis supplied.) “Child support” is not mentioned in the provision, only “alimony.” Nonetheless, the majority brings child support into the ambit of the provision by declaring that child support is, by statute, simply a subset of alimony.
The difficulty with the majority’s pronouncement is that it is contrary to the very statutory definition of alimony. OCGA § 19-6-1 (a) defines alimony as “an allowance out of one party’s estate, made *718for the support of the other party when living separately. It is either temporary or permanent.” (Emphasis supplied.) Child support, on the other hand, is for the benefit of the child, not the divorcing parent. Johnson v. Johnson, 233 Ga. 664, 665 (212 SE2d 835) (1975). A child of a marriage is in no sense “the other party’ in the divorce of his or her parents. Nor does the obligation of a parent to support his or her child arise from OCGA § 19-6-1 (a), but from OCGA § 19-7-2.7 That Code section in turn refers to OCGA § 19-6-15, which deals only with child support obligations, not alimony.8 The Code clearly contemplates these as separate obligations. If a court orders alimony, it awards it to a divorcing parent, who can then exercise typical ownership rights over the alimony, including waiving certain rights concerning it. If a court orders child support, the custodial parent is not able to exercise the same rights regarding the support award, particularly here, the right to waive certain modification actions.
The majority includes several citations to statutory sections suggesting that child support is but one variety of alimony, but this litany does not demonstrate such a relationship, only that there has been inconsistent, and confusing, statutory use of the term “alimony.” Yet despite this confusion in terms, the majority finds that the provision meets the requirement that a waiver be express and specific. Nelson, supra at 442-443 (2); Varn, supra; Livsey, supra. The proper view is that the statutory framework, at the very least, lacks clarity concerning the relationship of child support to alimony, and that in such a circumstance, a court cannot say, as the majority does, that the waiver provision is enforceable.
That this is so can also be seen in the language of the provision. It states that it is a waiver of the “statutory right to future modifications, up or down, of the alimony payments. . . .” (Emphasis supplied.) The majority declares that this constitutes an express waiver of the right to seek modification of child support obligations downward. However, the provision as written is impossible to effectuate under the majority’s interpretation of law, for parents cannot *719contract to waive the right to seek modifications of the “alimony” of child support “up or down.” Nelson, supra at 441-442 (1); Livsey, supra. Although the majority purports to recognize the principle that parents in a divorce action cannot waive the right of their children to seek increases in child support payments, it upholds a provision that specifically states that the principle can be violated. This anomalous result is produced by the majority’s insistence that any reference to “alimony” also embraces “child support” obligations.
Although the majority asserts that its decision is premised upon Varn, supra, it omits from its discussion important facets of that case. In fact, Varn does not approve the text “[t]he parties hereby waive their statutory right to future modifications, up or down, of the alimony payments provided for herein” as applying to modifications of child support; the case did not present any question of waiver of the right to seek a change in child support, only alimony for the support of a divorcing party. In Varn,
[t]he former husband sued for a reduction of his obligations established in a prior divorce decree and for contempt based on denial of his visitation rights. The former wife defended by asserting that the husband had waived his right to seek modification of alimony and that there were no grounds for reduction of child support. She counterclaimed that the husband was in contempt for failure to comply with specific provisions of the previous decree.
The trial court dismissed the husband’s action for modification of alimony after finding that he had waived his right to modification. After hearing testimony, the court denied modification of child support. As to the wife’s counterclaim for contempt, the trial court held the husband in contempt after finding that he was financially capable of complying with the provisions of the decree and had failed to do so.
Id. (Emphasis supplied.) Clearly, the parties, the trial court, and this Court in Varn all recognized the factual and legal distinction between alimony and child support. It is only in the context of the purported waiver of the right to modify alimony for the support of a spouse that the Varn language cited by the majority “will be deemed to comply” with the requirements for a valid waiver. The fact that, as the majority notes, the language in the provision at issue is “taken verbatim from Varn” is irrelevant; Varn simply deals with a different waiver, one which can be made under the law.
*720Decided July 6, 2006. Banks, Stubbs, Neville & Cunat, Robert S. Stubbs III, for appellant. Edwards, Friedwald & Grayson, Robert J. Grayson, for appellee.The trial court was correct in determining that the provision does not operate to waive Mr. Jones’s right to seek a downward modification of child support. Its ruling comports with the statutory scheme, this Court’s case law, and the common understanding of the relevant terms; alimony is for the support of a spouse, and child support is for the support of a child. Accordingly, I cannot join the majority opinion.
I am authorized to state that Justice Benham joins in this dissent.OCGA § 19-7-2 at the time of this provision read:
It is the joint and several duty of each parent to provide for the maintenance, protection, and education of his or her child until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs, except as otherwise authorized and ordered pursuant to subsection (e) of Code Section 19-6-15 and except to the extent that the duty of the parents is otherwise or further defined by court order.
Present OCGA § 19-6-15 contains no reference to alimony. A 2006 amendment to OCGA § 19-6-15, effective January 1, 2007, mentions “alimony,” but only in two contexts: alimony receipts as a component of a party’s gross income; and as a potential basis for a deviation from the Presumptive Amount of Child Support. See Ga. L. 2006, p. 583, § 4 (Act no. 650, signed April 28, 2006).