COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia
SHARON FINAN LEHMAN
OPINION BY
v. Record No. 3154-01-1 JUDGE ROBERT P. FRANK
AUGUST 13, 2002
DAVID MICHAEL LEHMAN
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
William H. Shaw, III, Judge
Brian H. Jones (Pitney Jones & Fantl, PLC, on
brief), for appellant.
McClanahan Ingles (Martin, Ingles & Ingles,
Ltd., on brief), for appellee.
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
1
While appellee contests this allegation, and others, in
the bill of complaint, we take the alleged facts as true. See
McDermott, 260 Va. at 100, 530 S.E.2d at 903.
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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 tunc 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
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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 oyer 2 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
2
Oyer can allow courts to consider written documents that
are not included in a bill of complaint.
When a demurrant's motion craving oyer has
been granted, the court in ruling on the
demurrer may properly consider the facts
alleged as amplified by any written
agreement added to the record on the motion.
Ward's Equip. v. New Holland N. Am., 254 Va. 379, 382, 493
S.E.2d 516, 518 (1997) (citations omitted). Also, under Rule
1:4(i), accompanying exhibits mentioned in a pleading become
part of the pleading. However, neither decree was attached as
an exhibit to the bill of complaint.
3
Neither the final decree nor the consent decree was
included as part of the pleadings. Therefore, we limit our
analysis to the provisions of the final decree as stated in the
bill of complaint. While the final decree and the consent
decree are contained in the appendix, neither decree is part of
the record and, therefore, should not have been included in the
appendix and will not be considered on appeal. See Rule 5A:10;
5A:25(d). See also Bernau v. Nealon, 219 Va. 1039, 1043, 254
S.E.2d 82, 85 (1979) (holding the appellate court can review
only the documents in the record of the case on appeal and may
not consider non-submitted documents from other, related cases).
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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
4
A transcript of this hearing is not included in the
record. However, submissions by both counsel contained in the
record indicate this hearing was held.
5
The trial court apparently found the decrees were not
void, so it had no jurisdiction over the case. The court found
in the alternative, even if the decrees were void on public
policy grounds, rescission was not an appropriate remedy. Since
we agree with the trial court that it had no jurisdiction to
review the decrees, we do not address the issue of rescission.
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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
6
The parties do not discuss Code §§ 20-149 and 20-155.
Therefore, we do not address whether consideration is necessary
in such agreements. See Dexter v. Dexter, 7 Va. App. 36, 47,
371 S.E.2d 816, 822 (1988) (noting Code §§ 20-149 and 20-155
eliminate the need for consideration in marital agreements made
after July 1, 1986).
7
The final decree, according to the bill of complaint, only
"refers" to the consent decree. It does not incorporate its
terms.
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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 Riggins 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.
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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
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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 "[appellant] shall pay child support to
[appellee] in an amount and on a schedule established in her
discretion." The bill of complaint also alleges the final
decree did "not require [appellant] to pay child support despite
owing a presumptive amount," in compliance with the parties'
negotiated settlement.
In Shoup v. Shoup, 37 Va. App. 240, 250-51, 556 S.E.2d 783,
788 (2001) (en banc), this Court explained that the parties in a
divorce can reach an agreement on child support without
violating the principles in Kelley. Based on the allegations in
the bill of complaint, the agreement here does not violate those
principles.
First, appellant did not allege that the best interests of
the children were ignored by the failure of the agreement to
require her to pay $79 a month. See id. at 250, 556 S.E.2d at
788 (agreements must be consistent with the best interests of
the child). Without this claim, and since the trial court
approved the agreement, we must assume the court followed the
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law and found the agreement was in the best interests of the
children. See Riggins, 263 Va. at 448, 559 S.E.2d at 675-76.
Additionally, the agreement does not "prevent the court
from exercising its power to change, modify, or enforce its
decree concerning the custody and maintenance of minor
children." Shoup, 37 Va. App. at 250, 556 S.E.2d at 788. No
language in the decrees attempts to preclude the court from
exercising its continuing jurisdiction.
Third, the final decree does not terminate appellant's duty
to pay child support, but instead makes no current award of
child support. See id. at 250-51, 556 S.E.2d at 788 (parties
are prohibited "from terminating by contract a parent's duty to
support a child"). For example, unlike in Kelley, 248 Va. at
297, 449 S.E.2d at 55-56, the parties' agreement here does not
attempt to circumvent any subsequent award of child support by
requiring appellee to "pay directly to" appellant the amount of
any subsequent order of support. Therefore, the challenged
provisions of the consent decree do not violate public policy
and are not void under the Kelley analysis.
Appellant also contends the consent decree is void due to a
failure of consideration. Appellant correctly states that a
consent decree "'partakes of the nature of both a contract and a
decree sanctioned by the court. It is binding, however, only
upon the consenting parties and not on them if procured by fraud
or mistake.'" Fuller v. Troy, 169 Va. 490, 494, 194 S.E. 668,
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669 (1938). See Durrett v. Durrett, 204 Va. 59, 63, 129 S.E.2d
50, 53 (1963); Barnes v. American Fertilizer Co., 144 Va. 692,
720, 130 S.E. 902, 911 (1925).
Appellant argues the provisions of the consent decree
involving child support are void as against public policy;
therefore, the decree lacks consideration and is invalid. Since
we hold the decrees are not void, her argument on lack of
consideration fails as well.
The trial court initially questioned and asked for
submissions from the parties on whether Rule 1:1 prevented
review of the decrees, as more than twenty-one days had passed
since their entry. Rule 1:1 would not be an issue if the
decrees were void. See Singh v. Mooney, 261 Va. 48, 51, 541
S.E.2d 549, 551 (2001). The trial court ultimately ruled it had
no jurisdiction to "grant the relief requested," which implies
the court found Rule 1:1 barred further review of the decrees.
If the decrees in question were void, then the trial court
clearly would have had jurisdiction. See Kelley, 248 Va. at
299, 449 S.E.2d at 57. Therefore, the trial court implicitly
found the decrees were not void. 8 We agree with the trial court.
8
As this case is a collateral attack on the final decree
and consent decree, we do not address whether the decrees are
voidable.
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For the reasons stated above, we affirm the trial court's
ruling.
Affirmed.
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