Lehman v. Lehman

• Decision Date: 13 August 2002
• Docket Number: Record No. 3154-01-1.
• Citation: 567 S.E.2d 571,38 Va. App. 598
• Court: Virginia Court of Appeals
• Parties: Sharon Finan LEHMAN v. David Michael LEHMAN.

567 S.E.2d 571

38 Va. App. 598

Sharon Finan LEHMAN v. David Michael LEHMAN.

Record No. 3154-01-1.

Court of Appeals of Virginia, Chesapeake.

August 13, 2002.

Brian H. Jones, Richmond, (Pitney Jones & Fantl, PLC, on brief), for appellant.

McClanahan Ingles (Martin, Ingles & Ingles, Ltd., on brief), Gloucester, for appellee.

Present: FRANK, HUMPHREYS and AGEE, JJ.

FRANK, Judge.

On appeal, Sharon Finan Lehman (appellant) contends the trial court erred in sustaining a demurrer to her bill of complaint, which sought to set aside a final decree of divorce. For the reasons stated herein, we affirm the trial court's judgment.

BACKGROUND

A demurrer responds to a pleading by asking that the suit be dismissed because the pleading "does not state a cause of action or fails to state facts upon which the relief demanded can be granted." Dean v. Dearing, 263 Va. 485, 490, 561 S.E.2d 686, 689 (2002) (citing Code § 8.01-273).

A demurrer will be sustained if the motion for judgment, considered in the light most favorable to the plaintiff, fails to state a valid cause of action. In reviewing a trial court's judgment sustaining a demurrer, we will consider as true the facts alleged in the motion for judgment, the facts impliedly alleged therein, and the reasonable factual inferences that can be drawn from the facts alleged.

McDermott v. Reynolds, 260 Va. 98, 100, 530 S.E.2d 902, 903 (2000) (citations omitted). See Faulknier v. Shafer, 264 Va. 210, 563 S.E.2d 755 (2002)

(explaining the nature of a demurrer). Accordingly, we will consider the facts stated in the bill of complaint and those reasonably and fairly implied or inferred therefrom in the light most favorable to appellant. However, we do not accept as true the conclusions of law in the bill of complaint. See Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 129, 523 S.E.2d 826, 829 (2000).

So viewed, appellant and David Michael Lehman (appellee) were divorced by a final decree entered on October 13, 1998, by the Circuit Court for Gloucester County. The final decree was "consented to by the parties and submitted as an agreed upon Decree." This decree did not require appellant to pay child support, although she "owe[d] a presumptive amount ... of $79.00 [per month]." This provision was negotiated by the parties, through their counsel, in consultation with the presiding judge.¹ Appellant further alleged the final decree contained no written findings of fact to explain this deviation from the child support guidelines' recommendation.

In exchange for her release from an obligation to pay child support, appellant waived her marital interest in appellee's military pension, as recited in a consent decree entered by the trial court on August 24, 1998, nunc pro tune as of January 23, 1998. The final decree referred to the terms of the consent decree as "in the nature of equitable distribution." The court made no further findings regarding equitable distribution.

After the entry of the final decree, appellee petitioned for child support in the Gloucester County Juvenile and Domestic Relations District Court. Appellant was ordered to pay $574 per month in child support for the two minor children. This amount was subsequently increased to $814 per month.

Appellant sought to vacate the final divorce decree and asked that "the parties be returned to their respective positions as existed prior to the entry of the Final Decree or, in the alternative, that [appellant] be granted her marital share of [appellee's] military retirement pay. . . ."

In the bill of complaint, appellant asserted the 1998 consent decree was void as against public policy because it provided that "[appellant] `shall pay child support to [appellee] in an amount and on a schedule established in her discretion.'" Further, appellant contended a "failure of consideration" occurred when appellee "moved for and was granted child support in contravention of the agreement of the parties [contained in the consent decree] and the terms of the Final Decree of divorce." Appellant further contended a "mistake of law was made in the entry of the Final Decree in that the Court failed to make written findings as to the reasons for deviation from the guidelines...."

No other facts were alleged in the bill of complaint. Appellee did not crave oyer² to include the final decree or the consent decree in the pleadings.³

Initially, the trial court heard argument and orally sustained the demurrer, but continued the matter for consideration of sanctions against appellant.⁴ After receiving a motion to reconsider from appellant, the court on July 25, 2001, issued a letter opinion vacating "the previous ruling of the Court granting the demurrer." While the trial court agreed with appellant that the final decree and consent decree were illegal and void, the trial court questioned whether rescission was the proper remedy and whether Rule 1:1 barred a review of the "agreement" in the consent decree. The trial court invited counsel to brief those issues, which both parties did.

Upon review of the submissions, the trial court sustained the demurrer and dismissed the bill of complaint. The trial court explained in a September 12, 2001 letter opinion:

While the court may determine the legality of contract provisions regarding child support incorporated in its order, it has no jurisdiction to grant the requested relief. Jurisdiction aside, rescission should not be an available remedy because it would improperly credit an agreement made in violation of public policy.⁵

ANALYSIS

Appellant contends the final divorce decree is void as against public policy because appellee gave up the right to pursue child support in exchange for appellant's waiver of any interest in appellee's military retirement. She indicates this agreement was included in an August 1998 consent decree to which the final decree referred.

Appellant argues on appeal, "[C]onsent decrees are to be construed in the nature of contracts." Since appellee's consideration for the agreement, i.e., waiver of child support, was unenforceable, "illegal and void," then the consent decree "is also illegal and void."⁶ Appellant concludes the final decree, which refers to the consent decree, must be vacated and "the parties [returned] to their positions prior to entry of those Orders in a manner akin to rescission of contract." Apparently, appellant contends since the consent decree must fall, the final decree must fall as well.⁷

We first address appellant's contention that the final decree and the consent decree are "void." When examining a decree, courts should seek a result that "will achieve conformity" with the law rather than construe a document as void. Parrillo v. Parrillo, 1 Va.App. 226, 230-31, 336 S.E.2d 23, 25-26 (1985). See Rigging v. O'Brien, 263 Va. 444, 448, 559 S.E.2d 673, 675-76 (2002)

(court orders carry "a presumption of correctness"). The presumption is against finding contracts void on public policy grounds. See Dexter v. Dexter, 7 Va.App. 36, 48, 371 S.E.2d 816, 822 (1988) (citing Capps v. Capps, 216 Va. 378, 380, 219 S.E.2d 901, 903 (1975)); Parra v. Parra, 1 Va.App. 118, 128, 336 S.E.2d 157, 162 (1985) (noting settlements "`will be enforced unless their illegality is clear and certain'" (quoting Cooley v. Cooley, 220 Va. 749, 752, 263 S.E.2d 49, 52 (1980))).

Appellant relies upon Kelley v. Kelley, 248 Va. 295, 449 S.E.2d 55 (1994), to argue that the decrees are void. However, this case is distinguishable on its facts.

In Kelley, both parties executed a property settlement agreement that provided, in part:

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.

Id. at 296-97, 449 S.E.2d at 55-56 (emphasis added). The property settlement agreement was ratified, affirmed, and incorporated by reference into a final decree of divorce. Id. at 296, 449 S.E.2d at 55.

In holding that the challenged provision of the property settlement agreement and a portion of the final decree were "null and void [as] ... violative of clearly established law," the Supreme Court noted 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 court's power to decree support was diminished." Id. at 298, 449 S.E.2d at 56.

The Kelley Court further opined:

Both parties 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).

Id.

Here, the parties did not "contract away their children's rights to support." The bill of complaint alleged the consent decree provided that "[ap...