dissenting.
Inexplicably, the majority finds a clear and express waiver of Carlos’ right to seek modification of alimony on the basis of Appellee’s voluntary cohabitation in a meretricious relationship, even though the settlement agreement specifies only another completely different ground. Furthermore, the majority opinion purports not to require “magic words,” but actually holds that a mere citation of the modification statute, without more, magically converts language of limited import into a general waiver of an ex-spouse’s right to modify *677alimony.
“The parties to a divorce agreement may waive the right to seek a modification of alimony only by employing very clear waiver language which specifically refers to that right. [Cit.]” Cannon v. Cannon, 270 Ga. 640, 641 (514 SE2d 204) (1999). See also Yarn v. Yarn, 242 Ga. 309, 311 (1) (248 SE2d 667) (1978) (adopting this “clear and express waiver test”). The entire provision at issue reads as follows:
The parties both hereby waive their respective statutory rights to future modifications up or down of the alimony payments for which this Agreement provides, based upon a change in the income or financial status of either party. The statutory modification rights waived herein shall include those rights set out in OCGA § 19-6-19 et seq., and similar laws of this State and any other jurisdiction. (Emphasis supplied.)
“[W]e have previously upheld waivers in which the right of modification being waived has been identified by the relevant statute. . . .” Ashworth v. Busby, 272 Ga. 228, 230 (526 SE2d 570) (2000). However, the presence or absence of a statutory citation does not necessarily resolve the issue of waiver. See Ashworth v. Busby, supra. Here, the applicable statutory provision pursuant to which Carlos seeks modification is subsection (b) of OCGA § 19-6-19. In the agreement itself, the parties cited OCGA § 19-6-19 generally, making no reference to particular subsections. However, by specifying that the waiver was of the right to modification “based upon a change in the income or financial status of either party,” the parties clearly intended to waive only the modification rights set forth in subsection (a) of OCGA § 19-6-19. Moreover, the agreement refers to the rights waived “herein,” which means those expressed in the agreement itself. Black’s Law Dictionary, p. 731 (7th ed. 1999). The sole ground of modification explicitly recognized in the agreement is that which is set forth in subsection (a) of OCGA § 19-6-19. Thus, I submit that the parties
waive [d] the right to modify alimony based upon a change in the income or financial status of either former spouse, OCGA § 19-6-19 (a) ([cit.]), and preserved] the right to modify alimony in the event of voluntary cohabitation in a meretricious relationship, OCGA § 19-6-19 (b) ([cit.]).
Daniel v. Daniel, 250 Ga. 849, 851 (2) (301 SE2d 643) (1983). See also Hathcock v. Hathcock, 246 Ga. 233, 234 (1) (271 SE2d 147) (1980) (also distinguishing between the rights found in each subsection).
“[A]n ambiguous or contradictory provision fails to constitute a *678waiver of rights.” Law v. Cheek-Law, 258 Ga. 190,191 (366 SE2d 680) (1988). The parties unambiguously waived the right to modify alimony based on a change in income or financial status, but they did not do so based upon the applicability of the live-in lover provision. See Law v. Cheek-Law, supra. Although the parties utilized waiver language which was suggested in Varn v. Varn, supra at 311 (1), fn. 1, the agreement does not clearly and expressly indicate that they intended to broaden the scope of that language so as to include a waiver of the “live-in lover” right of modification as set forth in OCGA § 19-6-19 (b). Compare Daniel v. Daniel, supra at 852 (2).
Decided October 28, 2002. Chorey, Taylor & Feil, Lisa F. Harper, for appellant. James J. McGinnis, for appellee.The majority states that, “[h]ad the parties intended to exclude subsection (b) from the waiver provision, they could have specifically done so.” (Emphasis supplied.) (Maj. op. p. 676.) Thus, the effect of today’s decision on future cases is enormous. The majority has abandoned this state’s longstanding “clear and express waiver” rule and replaced it with a “clear and express non-waiver” rule. Henceforth, the parties must specify any ground of modification which they are not waiving. I can only conclude that the majority intends to return to the previous philosophy of “finding waivers of [the right to modification] behind a variety of contractual phraseology. . . .” Varn v. Varn, supra at 310 (1). Varn rejected that policy, and under the rule established in Varn, Carlos did not clearly and expressly waive his right to modify alimony under subsection (b) of OCGA § 19-6-19 and the trial court erred in dismissing the petition for modification. However, today the Court reverts to the pre-Vam rule that the tail (waiver) wags the dog (the statutory right to modification). Because I cannot countenance this departure from settled and well-reasoned precedent, I dissent to the judgment affirming the trial court’s dismissal of the modification petition.
I am authorized to state that Chief Justice Fletcher and Presiding Justice Sears join this dissent.