Virginia's Court of Appeals says that the child support sections of an agreement and of the divorce decree that incorporates it, and possibly the entire agreement, are invalid because they restricted future reduction of child support. This agreement said the $2,000/month child support would continue as long as any of the three children were under 18; would not be reduced or terminated until then, even if any or all of them moved in with the payor, and "may be modified upward due to a change in circumstances but may not be reduced."
The Court does not rely on the most extreme provisions above as grounds for its decision, but instead says any restriction on future child support changes is void. It finds Kelley v. Kelley, 248 Va. 295, 449 S.E.2d 55 (1994) dispositive, and writes:
"the provision was “null and void . . . .” Id. at 298, 449 S.E.2d at 56. ... “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. ... because the final decree incorporated the void provision of the parties’ agreement, that provision of the decree was also void, and therefore, could “be attacked and vacated in any court at any time, directly or collaterally” despite the fact that the parties had agreed to the provision and it had been in place for a number of years. Id. at 299, 499 S.E.2d at 57. Applying these principles to the case at bar, it is clear that Paragraph 4 is void. Paragraph 4 provides that, regardless of circumstances, the agreed amount of child support “may not be reduced . . . .” By its express terms, it seeks to prevent a circuit court from decreeing child support based on the specific facts and circumstances. Accordingly, it runs afoul of Kelley’s direction that the parties’ agreement cannot preclude a circuit court “from exercising its power to decree child support,” id. at 298, 449 S.E.2d at 56, and therefore, is void. See also Virostko v. Virostko, 59 Va. App. 816, 824, 722 S.E.2d 678, 682 (2012) (holding that “the parties’ agreement may not prevent the court from exercising its power to change, modify or enforce its decree concerning child support” ...
Mother raises several arguments in an attempt to save Paragraph 4. First, she argues that she bargained for this arrangement, gave up valuable consideration in exchange for Paragraph 4, and is entitled to the benefit of her bargain. The husband in Kelley made similar arguments; such arguments fail because the parties, regardless of their intentions, cannot enter into agreements that divest a court of its ability to decree child support.
Next she argues that Paragraph 4 does not deprive the circuit court of its ability to “decree” child support. She asserts that, consistent with the child support guidelines, the circuit court is free to make any determination it wishes regarding the proper amount of support under the guidelines and announce that finding; however, the agreement still would require father to pay the $2,000 a month no matter what the circuit court found. This argument fundamentally misunderstands what a “decree” of a court is; it is not an idle statement but an order directing a party to do or refrain from doing something. See Decree, Black’s Law Dictionary (10th ed. 2014) (“decree, n. (14c) 1. Traditionally, a judicial decision in a court of equity, admiralty, divorce, or probate – similar to a judgment of a court of law . . . . 2. A court’s final judgment. 3. Any court order, but esp. one in a matrimonial case.”). Because Paragraph 4 purports to prevent the court from ordering a change in child support, it seeks to prevent a court “from exercising its power to decree child support,” and therefore, is void.
... as mother has argued, she did bargain for the void provision and apparently gave up other items of value to which she may have been entitled. Because such other provisions of the parties’ agreement may be so inextricably intertwined with Paragraph 4 that they cannot be severed, a determination must be made as to what other portions of the parties’ agreement are invalidated by our finding that Paragraph 4 is void. The parties agree that, given the fact-dependent nature of some of the questions raised by Paragraph 4 being declared void, remand to the circuit court is appropriate to determine the outstanding questions. Although we are not bound by the parties’ agreement on this issue, we concur.
... Paragraph 6 of the parties’ agreement provides that “[i]n the event that [father] defaults in his obligation to pay support pursuant to this Order, [father] shall pay all costs of enforcement of this Order including, but not limited to reasonable attorney fees . . . .” Assuming without deciding that Paragraph 6 is severable from Paragraph 4 and continues in effect, we note that, given the disposition, this appeal does not fall within the provision. Accordingly, the parties’ agreement does not entitle the mother to fees related to this appeal.
The voidness issue was not raised at all until the Court of Appeals had already announced a decision on the interpretation and enforcement of the agreement and decree, and on attorneys'-fee claims. After that, the payor raised the issue in a Motion to Reconsider. The "mandate" returning the case to the trial court had not yet been issued, and the Court says, if an order is "void ab initio", its invalidity can be raised at any time, regardless of the 21-day finality rule in Rule 1:1, the Rule 5A:18 requirement to have raised the issue in the trial court, or the appellate court rules. The Court cites as holding that "so long as a litigant has timely filed and properly perfected an appeal as to any issue, he retains the ability to raise a voidness challenge so long as the matter is pending before the appellate court." Amin v. County of Henrico, 286 Va. 231, 749 S.E.2d 169 (2013).