However, this Court held long ago that “a trial court, in the exercise of its discretion, may properly order a custodial parent to pay for the support of minor children while visiting with the non-custodial parent,” where “the best interest of the child requires that money be provided the non-custodial parent to provide for a proper visitation.” James v. James, 246 Ga. 233, 233, 271 S.E.2d 151 (1980). Father acknowledges James but argues that its holding is no longer valid because that case was decided before the enactment of the current child support guidelines.
Even if that were the issue before us, the evidence does not show an essential element of waiver, namely the “voluntary relinquishment of some known right, benefit, or advantage, which, except for such waiver, the party otherwise would have enjoyed.” Hathcock v. Hathcock, 246 Ga. 233, 234(1), 271 S.E.2d 147 (1980) (citation and punctuation omitted). Although one may waive a contractual right by his conduct, it is well-settled that
quoting Nash v. Nash, 244 Ga. 749, 750 ( 262 SE2d 64) (1979), disapproved on other grounds in Winokur v. Winokur, 258 Ga. 88, 90 ( 365 SE2d 94) (1988)). Because alimony terminates at the death of either the paying or receiving spouse, Winokur, 258 Ga. at 88, or the remarriage of the receiving spouse, OCGA § 19-6-5 (b), a divorce decree that provides that payments from one spouse to another do not terminate upon any of these grounds also indicates that the obligation is not alimony. Daniel v. Daniel, 277 Ga. 871, 873 ( 596 SE2d 608) (2004) (considering whether marital obligation terminates on death or remarriage of receiving spouse in determining whether obligation is alimony or property division); Duncan v. Duncan, 239 Ga. 789, 790-791 ( 238 SE2d 902) (1977) (provision requiring husband to pay mortgage debt to wife each month and providing that payment of debt would not terminate on husband's death constitutes property division), disapproved on other grounds in Winokur, 258 Ga. at 89; Hathcock v. Hathcock, 246 Ga. 233, 234 ( 271 SE2d 147) (1980) (provision that neither remarriage nor death would terminate husband's obligation to make lump-sum payment to wife supports conclusion that obligation was not alimony). Here, because the award to Ms. Moore was for a given sum that was clearly intended to equalize the distribution of the parties' marital debt and because the trial court specifically stated that the $40,000 award would not terminate upon the death or remarriage of either spouse, we conclude that the award constitutes property division and not alimony and therefore is not subject to reversal on the ground raised by Mr. Moore.
We find the "unclean hands" maxim applies to appellant and that he is not entitled to reform or rescind the contract based on appellee's allegedly fraudulent actions. (2) Appellant next argues that the trial court erred in finding that the $3,000 in the written agreement was alimony and not a property settlement as "required" by this court's holding in Hathcock v. Hathcock, 246 Ga. 233 ( 271 S.E.2d 147) (1980). Even if we were to characterize the monthly payments as a property settlement within the meaning of Hathcock, there is nothing in the written agreement to suggest that this amount was paid as a property settlement in exchange for appellee's interest in the condominium.
This statute has to do with the carrying out of verdicts of the jury in a given case awarding alimony, decreeing a trust in specific property, and so forth, but does not establish a vested remedy for obtaining such a verdict. We have stated as recently as September 3, 1980 in the case of Hathcock v. Hathcock, 246 Ga. 233 ( 271 S.E.2d 147) (1980), the following: "We note here that a so-called `property settlement' can only exist by virtue of an agreement. The only method by which a trial judge or jury can award one spouse's property to the other spouse is by granting alimony, either periodic alimony or alimony in kind.
We note that the noncompetition agreement expressly provided for waivers and only required that such agreements be in writing and signed by the parties to be charged. Certainly this agreement falls within that contractual description. Furthermore, this agreement falls within the traditional definition of waiver: the intentional relinquishment of a known right. Hathcock v. Hathcock, 246 Ga. 233, 234 ( 271 S.E.2d 147) (1980); E. Allen Farnsworth, Contracts, 587 (1990). A waiver is an unilateral action that needs no consideration. Farnsworth, supra at 589.
In the instant case the divorce decree does not award permanent alimony to Ms. McLure. The lump sum of $15,000 to be paid in periodic installments is in the nature of a property settlement. Solomon v. Solomon, 241 Ga. 188, 189 ( 244 S.E.2d 2) (1978); Hathcock v. Hathcock, 246 Ga. 233, 234 ( 271 S.E.2d 147) (1980). Thus, we do not view this case as involving a question of modification of the original decree; rather, the issue is whether appellant by agreement released appellee from the judgment in the amount of $15,000.