## Facts

- Husband and Wife executed a 1985 property settlement agreement later ratified, affirmed, and incorporated by reference into their divorce decree.
- The agreement stated Husband would never be responsible for child support in exchange for conveying his equity in the marital home to Wife (valued at about $40,000).
- Wife promised never to seek a child support order and agreed to reimburse Husband for any child support he was ever ordered to pay, holding him harmless regardless of circumstances.
- For approximately six years after the decree, Husband paid no child support, and Wife supported the children.
- In 1990, Wife petitioned for child support; Husband sought an order requiring Wife to reimburse him for any court-ordered support based on the agreement.

## Issues

1. Whether settlement provisions, incorporated into a divorce decree, that permanently waive a parent’s child support obligation and require indemnification for any ordered support are void as against public policy.
2. If such provisions are void, whether they may be challenged after the decree has become final notwithstanding the 21-day finality rule.

## Decision

- The Supreme Court of Virginia reversed the Court of Appeals and reinstated the circuit court’s judgment.
- The Court held the child-support waiver and hold-harmless/indemnity provisions were null and void as contrary to public policy protecting minor children’s right to support.
- Because the decree incorporated void provisions, that portion of the decree was void and could be attacked at any time; the 21-day finality rule did not bar relief.
- The Court upheld the child support award to Wife and denied Husband’s request for reimbursement.

## Legal Principles

- A minor child’s right to support is independent of parental contract rights; parents cannot permanently bargain away a parent’s duty to support.
- Contract terms that eliminate child support obligations or neutralize future child support orders through indemnification are void as against public policy.
- Incorporation of an unlawful child-support provision into a divorce decree does not validate it.
- A void judgment, or a void portion of a judgment, may be challenged at any time; ordinary finality limits do not insulate void provisions.

## Conclusion

The court held that parents cannot, even by a settlement incorporated into a divorce decree, permanently waive child support or require reimbursement that defeats a support order; such provisions are void and may be set aside without regard to the decree’s finality.


Kelley v. Kelley, 449 S.E.2d 55 (Va. 1994)