Coleman, X, with whom Koontz, X,**
joins, dissenting.
I respectfully disagree with the majority’s holding that the res judicata bar of Rule 1:1 prevents appellate review of whether the divorce decree was void and unenforceable because it violated public policy. In my view, that part of the divorce decree that incorporated the covenant from the PSA requiring Marilyn Kelley to indemnify David Kelley for all child support he was required to pay and the related covenants absolving David Kelley of his duty to support his children and the wife’s covenant not to sue him for child support are void, rather than voidable. Therefore, the validity of that part of the decree is unaffected by Rule 1:1. Accordingly, I dissent and would uphold the ruling of the trial judge that the indemnification provision in the decree is void.
Whether Rule 1:1 bars appellate review after twenty-one days of a decree incorporating a contract that violates public policy depends upon whether the underlying contract is void or whether it is merely voidable and unenforceable. The majority acknowledges that a void judgment may be attacked and vacated in any court at any time, directly or collaterally, without regard to the time limitation contained in Rule 1:1. See Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987).1 The Supreme Court
said through the eminent Judge Burks: “It is conceded by all the authorities that if a judgment is void, it may be assailed anywhere, at any time, in any way, by anybody. It is immaterial whether the assault be direct or collateral. It is a nullity and may be treated as such.”
[99] Broyhill v. Dawson, 168 Va. 321, 326, 191 S.E. 779, 781 (1937). And when a judgment is based upon or incorporates a void contract, that part of the judgment is also void.
A void contract is no contract at all; it binds no one and is a mere nullity. ... If the contract... is void and a nullity by statute, it continues to be so once incorporated in the divorce decree with the result that the judgment as it pertains to such contract is also void. This is true because the trial court is without power or jurisdiction to render a judgment based upon a statutorily void contract.
Isenhower v. Isenhower, 666 P.2d 238, 241 (Okla. Ct. App. 1983) (footnote omitted).
A thing that is null and void has no legal existence. It is lifeless. Life cannot be infused into it — being cannot be given to it — by a court order or judgment. The weakness of the [majority’s reasoning] . . . comes of the fact that [they] fail[] to distinguish between a void judgment and a voidable one.
Broyhill, 168 Va. at 326, 191 S.E. at 781 (emphasis added). Thus, the dispositive questions are whether the underlying PSA was void, whether a divorce decree that incorporated the PSA was void, or whether it was merely voidable, thereby rendering it unenforceable only when subjected to direct attack.
The majority does not expressly address whether the covenants in the Kelley’s PSA were void or voidable. The covenants purported to relieve the father, David Kelley, of his duty to support his children and to bind the mother not to sue him for child support and to indemnify him fully if she did. Whether the covenants are void or merely voidable is, in my opinion, a threshold determination that must be made. The majority suggests that the indemnification covenant between the Kelleys as incorporated in the decree is a separate, valid and enforceable provision. Relying upon the decision in Rook v. Rook, the majority implies that the provision absolving the father of the duty of support and the covenant not to sue were, at most, voidable and unenforceable. The majority concludes that “[t]his challenge to the agreement’s validity could and should have been raised before the divorce decree was entered or within 21 days thereafter.” Rook, 233 Va. at 95, 353 S.E.2d at 758.
[100] In my view, the waiver and enforcement covenants, which I believe are void as against public policy, cannot be severed and considered separately from the indemnification provision. The sole purpose of the indemnification provision is, as are the other two, to relieve David Kelley of his duty to support his children and, thereby, effectively deprive the children of their statutory right to support from both parents by requiring the mother to indemnify him and bear the full burden of support. Moreover, even if the indemnification provision can be viewed as a separate and independent provision of the divorce decree, it is void as contrary to public policy because it effectively relieves one parent, in exchange for a bargain benefitting the mother, of his duty to support his children. To treat the indemnification provision in the divorce decree as though it is not part of the agreement to relieve the father of his duty of child support and the mother’s covenant not to sue him is to sanction the basest form of legerdemain.
The majority relies primarily on the decision in Rook v. Rook. In my view, the majority misconstrues Rook. In Rook, the Court was presented with the following issues:
Lisbeth’s first assignment of error challenges the jurisdiction of the trial court to modify the divorce decree after it became final. Robert counters with alternative arguments. First, he argues that he did not attack the decree but only the property settlement agreement. Alternatively, he argues that even if his claim constituted an attack on the final decree, Code § 8.01-428(C) permits such a challenge.
Id. at 94, 353 S.E.2d at 757. The Court held that the husband could not after twenty-one days attack a divorce decree incorporating a PSA when the “sole contention is that the agreement is against public policy and therefore void.” I do not read Rook to hold that every final judgment that incorporates or is based on an agreement that violates public policy is, after twenty-one days, valid and unassailable under Rule 1:1. In fact, Rook acknowledges that Rule 1:1 does not bar review of a void judgment. Rather, I understand Rook to hold that a challenge to a PSA on the ground that it is unenforceable because it encourages divorce and, for that reason, is against public policy must be raised before the agreement has been incorporated as part of a decree or challenged on direct appeal. In effect, Rook holds that a challenge to a PSA on these grounds raises a claim that the agreement is voidable rather than void and, therefore, can only be challenged by direct appeal.
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Coleman, X, with whom Koontz, X,**
joins, dissenting.
I respectfully disagree with the majority’s holding that the res judicata bar of Rule 1:1 prevents appellate review of whether the divorce decree was void and unenforceable because it violated public policy. In my view, that part of the divorce decree that incorporated the covenant from the PSA requiring Marilyn Kelley to indemnify David Kelley for all child support he was required to pay and the related covenants absolving David Kelley of his duty to support his children and the wife’s covenant not to sue him for child support are void, rather than voidable. Therefore, the validity of that part of the decree is unaffected by Rule 1:1. Accordingly, I dissent and would uphold the ruling of the trial judge that the indemnification provision in the decree is void.
Whether Rule 1:1 bars appellate review after twenty-one days of a decree incorporating a contract that violates public policy depends upon whether the underlying contract is void or whether it is merely voidable and unenforceable. The majority acknowledges that a void judgment may be attacked and vacated in any court at any time, directly or collaterally, without regard to the time limitation contained in Rule 1:1. See Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987).1 The Supreme Court
said through the eminent Judge Burks: “It is conceded by all the authorities that if a judgment is void, it may be assailed anywhere, at any time, in any way, by anybody. It is immaterial whether the assault be direct or collateral. It is a nullity and may be treated as such.”
[99] Broyhill v. Dawson, 168 Va. 321, 326, 191 S.E. 779, 781 (1937). And when a judgment is based upon or incorporates a void contract, that part of the judgment is also void.
A void contract is no contract at all; it binds no one and is a mere nullity. ... If the contract... is void and a nullity by statute, it continues to be so once incorporated in the divorce decree with the result that the judgment as it pertains to such contract is also void. This is true because the trial court is without power or jurisdiction to render a judgment based upon a statutorily void contract.
Isenhower v. Isenhower, 666 P.2d 238, 241 (Okla. Ct. App. 1983) (footnote omitted).
A thing that is null and void has no legal existence. It is lifeless. Life cannot be infused into it — being cannot be given to it — by a court order or judgment. The weakness of the [majority’s reasoning] . . . comes of the fact that [they] fail[] to distinguish between a void judgment and a voidable one.
Broyhill, 168 Va. at 326, 191 S.E. at 781 (emphasis added). Thus, the dispositive questions are whether the underlying PSA was void, whether a divorce decree that incorporated the PSA was void, or whether it was merely voidable, thereby rendering it unenforceable only when subjected to direct attack.
The majority does not expressly address whether the covenants in the Kelley’s PSA were void or voidable. The covenants purported to relieve the father, David Kelley, of his duty to support his children and to bind the mother not to sue him for child support and to indemnify him fully if she did. Whether the covenants are void or merely voidable is, in my opinion, a threshold determination that must be made. The majority suggests that the indemnification covenant between the Kelleys as incorporated in the decree is a separate, valid and enforceable provision. Relying upon the decision in Rook v. Rook, the majority implies that the provision absolving the father of the duty of support and the covenant not to sue were, at most, voidable and unenforceable. The majority concludes that “[t]his challenge to the agreement’s validity could and should have been raised before the divorce decree was entered or within 21 days thereafter.” Rook, 233 Va. at 95, 353 S.E.2d at 758.
[100] In my view, the waiver and enforcement covenants, which I believe are void as against public policy, cannot be severed and considered separately from the indemnification provision. The sole purpose of the indemnification provision is, as are the other two, to relieve David Kelley of his duty to support his children and, thereby, effectively deprive the children of their statutory right to support from both parents by requiring the mother to indemnify him and bear the full burden of support. Moreover, even if the indemnification provision can be viewed as a separate and independent provision of the divorce decree, it is void as contrary to public policy because it effectively relieves one parent, in exchange for a bargain benefitting the mother, of his duty to support his children. To treat the indemnification provision in the divorce decree as though it is not part of the agreement to relieve the father of his duty of child support and the mother’s covenant not to sue him is to sanction the basest form of legerdemain.
The majority relies primarily on the decision in Rook v. Rook. In my view, the majority misconstrues Rook. In Rook, the Court was presented with the following issues:
Lisbeth’s first assignment of error challenges the jurisdiction of the trial court to modify the divorce decree after it became final. Robert counters with alternative arguments. First, he argues that he did not attack the decree but only the property settlement agreement. Alternatively, he argues that even if his claim constituted an attack on the final decree, Code § 8.01-428(C) permits such a challenge.
Id. at 94, 353 S.E.2d at 757. The Court held that the husband could not after twenty-one days attack a divorce decree incorporating a PSA when the “sole contention is that the agreement is against public policy and therefore void.” I do not read Rook to hold that every final judgment that incorporates or is based on an agreement that violates public policy is, after twenty-one days, valid and unassailable under Rule 1:1. In fact, Rook acknowledges that Rule 1:1 does not bar review of a void judgment. Rather, I understand Rook to hold that a challenge to a PSA on the ground that it is unenforceable because it encourages divorce and, for that reason, is against public policy must be raised before the agreement has been incorporated as part of a decree or challenged on direct appeal. In effect, Rook holds that a challenge to a PSA on these grounds raises a claim that the agreement is voidable rather than void and, therefore, can only be challenged by direct appeal.
[101] Rook distinguishes, as does the majority, between a void judgment and a contract that is violative of public policy. In Rook, the appellant only raised a claim that the PSA was void and did not argue that the divorce decree was void. The majority has framed the issue in this case as being the same as in Rook, even though neither party raised the question. Unlike the issue in Rook, I believe that this Court must consider the question whether the divorce decree that incorporated the PSA provisions relieving the father of his child support obligation, and approving the mother’s agreement not to sue for support or to indemnify the father, is void as against public policy as defined by the statute. Furthermore, while Rook includes a definition of void judgments, the definition is not exclusive. In addition to judgments or decrees procured by extrinsic or collateral fraud or those entered by a court lacking personal or subject matter jurisdiction, Rook, 233 Va. at 95, 353 S.E.2d at 758, a decree or judgment whose invalidity appears on its face or that is statutorily prohibited is also void and is not affected by the res judicata bar of Rule 1:1. See, e.g., Code § 8.01-428; Broyhill v. Dawson, 168 Va. 321, 191 S.E. 779 (1937). Thus, because the indemnification provision and the provisions absolving the father of his duty of child support and the mother’s agreement not to sue for child support violate the provisions of Code §§ 20-61, 20-107.2 and 20-108.2 requiring both parents to support their children, those provisions of the decree are null and void as against public policy.
In my view, it is unconscionable to uphold a provision in a divorce decree approving a mother’s bargaining away her children’s right to support from their father in exchange for her receiving the marital home, which the indemnification agreement sanctions. I am not unmindful that the father may well have bargained away a $40,000 asset to the mother in exchange for her agreement to indemnify him and that the children may have benefitted from her bargain. The record is silent on that account. The point is that a parent cannot enter an agreement that effectively bargains away her children’s right to their other parent’s support.
While the validity of a divorce decree incorporating a contract relieving a parent of child support with an indemnification covenant is a question of first impression in Virginia, other states that have confronted the issue have held that decrees that incorporate contracts of this nature may be collaterally attacked because they are void in violation of public policy or state statute. See Huckaby v. Huckaby, 393 N.E.2d 1256, 1259-60 (Ill. Ct. App. 1979) (judgment incorporating agreement absolving father of child support liability void as against [102] public policy despite lapse of time for attacking final judgment); Richardson v. Richardson, 427 So. 2d 518, 521 (La. Ct. App. 1983) (judgment incorporating agreement waiving child support “null and void as against public policy” despite lapse of time for attacking final judgment); Isenhower, 662 P.2d at 241 (judgment that incorporates a void contract also is void and unenforceable); see also Calton v. Calton, 485 So. 2d 309, 310 (Miss. 1986) (covenant not to sue for child support void as against public policy because “parents cannot contract away rights vested in minor children”); and Miesen v. Frank, 522 A.2d 85, 87-88 (Pa. Super. Ct. 1987) (indemnification for child support provision in separation agreement void as contrary to public policy). But see Department of Health & Rehabilitative Servs. v. Morley, 570 So. 2d 402, 404 (Fla. Dist. Ct. App. 1990).
Thus, we necessarily must decide whether the provisions in the divorce decree incorporated from the PSA are null and void in violation of the statutes and as against public policy. Both parents are legally required by statute to support and maintain their minor children. Code §§ 20-61, 20-107.2 and 20-108.2; Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 622, 376 S.E.2d 787, 791 (1989). From this duty emanates a legal right that “is solely that of the child” to seek child support. Johnson, 7 Va. App. at 622, 376 S.E.2d at 791. Consequently, a contractual agreement between husband and wife in violation of the statute is illegal and in violation of the stated policy of the Commonwealth.
The trial court, although it previously approved the covenants and gave them the force of its decree, subsequently recognized its residual authority to order the father to support his children and to disregard the covenants not to sue and absolving the father of his duty to support. Just as the trial court was empowered to disregard and hold void and unenforceable those provisions incorporated in the covenant not to sue, the trial court was, for the same reason, empowered to disregard the indemnification provision because it was void. The indemnification covenant is simply another means of allowing David Kelley to escape his legal duty to support his children by insuring that any child support payments he might make “would end up back in his own pocket.” Miesen, 522 A.2d at 88. I would uphold the trial court’s ruling that the decree approving the agreement for the mother to indemnify the father for child support he is required to pay is null and void as contrary to public policy.