Kelley v. Kelley, 931522

• Decision Date: 16 September 1994
• Docket Number: No. 931522,931522
• Citation: 449 S.E.2d 55,248 Va. 295
• Parties: Marilyn Gibson KELLEY v. David Allen KELLEY. Record
• Court: Virginia Supreme Court

Page 55

449 S.E.2d 55

248 Va. 295

Marilyn Gibson KELLEY v. David Allen KELLEY.

Record No. 931522.

Supreme Court of Virginia.

Sept. 16, 1994.

Jonathan S. Kurtin, Roanoke (Harvey S. Lutins, Lutins & Shapiro, on briefs), for appellant.

Charles B. Phillips, Salem (Phillips, Doherty & Swanson, on brief), for appellee.

Com. of Virginia, Dept. of Social Services, Div. of Child Support Enforcement (James S. Gilmore, III, Atty. Gen., William H. Hurd, Deputy Atty. Gen., Betsy S. Elliott, Richmond, Alice G. Burlinson, Christiansburg, Steven P. Roadcap, Fort Defiance, on brief), for amicus curiae appellant.

Present: All the Justices.

STEPHENSON, Justice.

In this appeal, we decide (1) whether a provision of a property settlement agreement, which was ratified, affirmed, and incorporated by reference into a divorce decree, is void and, if so, (2) whether the decree may be attacked and vacated after it has become final.

On April 29, 1985, David Allen Kelley (Husband) and Marilyn Gibson Kelley (Wife) executed a property settlement agreement (the Agreement). On September 23, 1985, the trial court (the Circuit Court of the City of Roanoke) entered a divorce decree which ratified, affirmed, and incorporated by reference the Agreement.

The Agreement contained the following provision:

The parties hereto agree, in consideration of Husband relinquishing all of his equity in the jointly-owned marital home, that Husband shall never be responsible for payment of child support. The [Wife] covenants and agrees never to file a petition in any Court requesting that [Husband] be placed under a child support Order because [Wife] has accepted all of [Husband's] equity in lieu of requesting child support.

In the event [Wife] should ever petition any Court of competent jurisdiction for support and maintenance of [the children], and should a Court grant any such child support award, the said [Wife] hereby covenants and agrees to pay directly to [Husband], any amount of support that he is directed to pay to any party. In other words, [Wife] is agreeing to hold harmless [Husband] from the payment of any amount of child support, regardless of the circumstances under which he is paying same.

Pursuant to the Agreement, the Husband conveyed his equity in the marital home, valued at $40,000, to the Wife. For approximately six years thereafter, the Husband paid nothing toward the support of his children; the Wife, alone, supported them.

In late 1990, the Husband petitioned the trial court for definite periods of visitation with his children, and the Wife petitioned the court to require the Husband to pay child support. The Husband countered with a motion requesting the court to order the Wife to reimburse him for any amount of child support he was required to pay.

The trial court ordered the Husband to pay support and denied the Husband's motion, ruling that the indemnification and reimbursement provision of the Agreement was null and void. The Husband appealed from the trial court's judgment to the Court of Appeals. The Husband did not challenge the ordered child support, but contended that the trial court erred in holding that the indemnification and reimbursement provision of the Agreement was void and unenforceable.

The Court of Appeals, upon rehearing en banc, reversed the trial court's judgment, concluding that the trial court lacked jurisdiction to alter the terms of the Agreement or decree. The Court of Appeals reasoned that, pursuant to Rule 1:1, the September 23, 1985 decree became final, and not subject to modification, after 21 days from the date the decree was entered. Kelley v. Kelley, 17 Va.App. 93, 435 S.E.2d 421 (1993). ^* We awarded the Wife an appeal from the judgment of the Court of Appeals, concluding that the case involves a matter of significant precedential value. Code § 17-116.07(B).

Both parents owe a duty of support to their minor children. Code § 20-61; Featherstone v. Brooks, 220 Va. 443, 448, 258 S.E.2d 513, 516 (1979). A divorce court retains continuing jurisdiction to change or modify its decree relating to the maintenance and support of minor children. Code § 20-108; Featherstone, 220 Va. at 446, 258 S.E.2d at 515. Consequently, parents cannot contract away their children's rights to support nor can a court be precluded by agreement from exercising its power to decree child support. Id.; Carter v. Carter, 215 Va. 475, 481, 211 S.E.2d 253, 258 (1975); Scott v. Scott, 12 Va.App. 1245, 1247, 408 S.E.2d 579, 581 (1991).

In the present case, the parties agreed that the "Husband shall never be responsible for payment of child support." The Wife agreed "never to file a petition in any court" requesting support for the children. The Wife covenanted that, if a court ordered the Husband to pay child support, she would reimburse the Husband for all sums paid by him. She further agreed to hold the Husband harmless for any amount of child support he was required to pay.

Clearly, the parties contracted away the Husband's legal duty to support his children and, in effect, placed upon the Wife the sole duty of support. Additionally, the Wife's ability to contribute to the support of the children was adversely affected. Thus, the children's rights to receive support from both parents were substantially abridged, and the court's power to decree support was diminished. W...