dissenting.
I concur with the majority that the agreement, as written, is contrary to public policy. However, in order to allow the trial court to make a determination as to the feasibility of restoring the status quo ante, I would remand.
The majority, in footnote one, indicates it expresses no opinion regarding the recovery of any portion of the $40,500, which hus*428band paid wife in consideration of the agreement we have found violative of public policy. By not addressing the issue, we may preclude any possibility of recovery. The record reflects that the trial court incorporated the agreement into the final divorce decree; five years later wife sought child support; the court awarded support, which husband agreed the court had a right to do; husband sought indemnification pursuant to the agreement; and the trial court found that the agreement violated public policy. Principles of res judicata may well bar further attempts to recover.
The agreement in question did not purport to preclude the court from exercising its power to order child support; it merely required indemnification of amounts paid. Indeed, it is clear that a contract between a husband and wife cannot prevent the court from exercising its power relative to child support. Featherstone v. Brooks, 220 Va. 443, 446, 258 S.E.2d 513, 515 (1979). The agreement before us, however, presents an issue of first impression in Virginia. While I agree, for reasons stated in the majority opinion, that this type of agreement is violative of public policy, I do not agree that the general principle of allowing no recovery under contracts violating public policy should apply to this agreement. See Levy v. Davis, 115 Va. 814, 80 S.E. 791 (1914). There are exceptions to the general rule that allows no recovery under contracts deemed illegal or violative of public policy. Where the parties to an illegal contract are not in pari delicto, or where public policy would be promoted, courts of equity can and should grant relief. Waller v. Eanes’ Adm’r, 156 Va. 389, 157 S.E. 721 (1931).
In the case at bar, husband testified that the provision regarding child support was placed in the agreement at wife’s request or suggestion. While wife denied that the provision was included at her request, oral argument established that the funds were used by her to purchase a new home, lending credibility to husband’s assertion that the parties are not equally at fault and that husband should have relief.
Public policy favors the prompt resolution of disputes concerning the maintenance of minor children. Morris v. Morris, 216 Va. 457, 459, 219 S.E.2d 864, 867 (1975). To disallow recovery under this agreement would discourage rather than encourage resolution of child support disputes.
*429By having the agreement incorporated into the final divorce decree, the parties have asked the trial court to deal with all issues contained therein. The trial court is in a unique position to resolve these issues equitably. Both parties abided by the agreement for over five years. During that period wife had use of husband’s $40,500, and husband paid no child support. But for the agreement, husband clearly would have paid child support. On remand, the trial court should determine how much support husband should have paid during this period, plus interest on that amount. The court should then offset that amount against $40,500 plus interest and order any excess funds returned to husband. Wife is unjustly enriched if she is allowed to keep the $40,500 and receive child support.
For the reasons stated, I would remand to allow the trial court to determine what refund, if any, husband is entitled to receive from the $40,500 paid to wife in consideration of this void agreement.