Kelley v. Kelley , 13 Va. App. 424 ( 1991 )

Opinion

COLEMAN, J.

In this appeal, we affirm the trial court’s holding that a provision in a property settlement agreement violated public policy and was, thus, unenforceable. The covenant in the agreement which violated public policy required the wife, in exchange for the husband’s equity in their house, to reimburse the husband for any court ordered child support payments he would make.

David Allen Kelley appeals the decision of the Circuit Court of the City of Roanoke denying his motion to enforce the child support reimbursement provision contained in the court-approved property settlement agreement. After almost fifteen years of marriage and the birth of two children, David Allen Kelley and Marilyn Gibson Kelley were divorced in 1985. The final divorce decree, granted upon the one-year separation of the parties, approved and incorporated a property settlement agreement which contained the following provision:

6. 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 party of the second part covenants and agrees never to file a petition in any Court requesting that David Allen Kelley be placed under a child support Order because Marilyn Gibson Kelley has accepted all of David Allen Kelley’s equity in lieu of requesting child support.

In the event Marilyn Gibson Kelley should ever petition any Court of competent jurisdiction for support and maintenance of Joshua Caleb Kelley and/or Joanna Caren Kelley, and should a Court grant any such child support award, the said Marilyn Gibson Kelley hereby covenants and agrees to pay directly to David Allen Kelley, any amount of support that he is directed to pay to any party. In other words, Marilyn Gibson Kelley is agreeing to hold harmless David Allen Kelley from the payment of any amount of child support, regardless of the circumstances under which he is paying the same.

The equity in the marital home which the wife received from David Allen Kelly was $40,500.

Sometime in 1990, David Kelley, according to allegations in his pleadings, experienced problems obtaining visits with his children. He petitioned the court to establish for him specific visitation rights. Marilyn Kelley, in turn, for the first time since the divorce in 1985, petitioned the court to award and set child support. The court granted both requests and ordered David Kelley to pay $604 per month child support. Mr. Kelley did not contest the court’s authority to order him to pay child support or the amount of the award. Instead, he moved the court to enforce the property settlement agreement by ordering Marilyn Kelley to reimburse him for all of his child support expenditures. The court refused to do so, finding that the contract provision was facially an indemnification and guaranty agreement which relieved David Kelley of his obligation to support his children, which covenant was contrary to the public policy of Virginia and, therefore, unenforceable. We agree.

Both natural parents are legally required to support and maintain their minor children. Code § 20-61. While the Commonwealth encourages amicable resolution of domestic disputes, including matters of child support and custody, through court-approved agreements, see Morris v. Morris, 216 Va. 457, 219 S.E.2d 864 (1975), a covenant relieving a parent of his. or her obligation to provide child support would be contrary to public policy because “both parents of a child owe that child a duty of support during minority.” Rippe v. Rippe, 3 Va. App. 506, 509, 351 S.E.2d 181, 182 (1986) (emphasis added). The fact that a custodial parent receives a direct benefit from such an arrangement, from which the children may also receive a direct or indirect benefit, does not warrant the approval of such agreements which so clearly have the potential to defeat the rights of the children, even if the custodial parent shares with them the benefit of his or her bargain. The welfare and best interests of children, which are the paramount considerations in any dispute regarding child care issues, are not served where a court fails to enforce the obligation as to one parent or condones the other parent’s failure to enforce that obligation. Id.; see also Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990); Code § 20-107.2. For the trial court to have required Marilyn Kelley to repay her former husband for his child support expenditures in accordance with the agreement “would undermine his legal duty to support his children,” Miesen v. Frank, 361 Pa. Super. 204, 209, 522 A.2d 85, 87-88 (1987), since all of his contributions “would end up back in his own pocket.” Id. To allow such an agreement to be enforced against the mother would chill any incentive which she may have as custodian of the child to seek needed support and, thus, the child would suffer. We will not “permit a parent to indirectly remove [his obligation to pay child support] by a contractual indemnification provision between himself and his former spouse.” Id. Accordingly, we uphold the ruling by the trial court that the indemnification provision is unenforceable because it is contrary to the public policy of the Commonwealth of Virginia.¹

Affirmed.

Koontz, C.J., concurred.

1 We express no opinion on the issue whether David Kelley may recover from Marilyn Kelley an amount equal to the equity in the marital home surrendered in return for her covenant not to seek child support.