joins, dissenting.
I concur with the dissent by Judge Coleman that the agreement, as written, is contrary to public policy and, as such, is not subject to the bar of Rule 1:1. 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 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, a contract between a husband and wife cannot prevent the coifrt 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 Judge Coleman’s dissent, 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 Phillip Levy & Co. v. Davis, 115 Va. 814, 80 S.E. 791 (1914). There are exceptions to the general rule that allow 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, 156 Va. 389, 394, 157 S.E. 721, 723 (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. Although 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. These facts lend 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 *104agreement would discourage rather than encourage resolution of child support disputes.
By having the agreement incorporated into the final divorce decree, the parties 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. Wife may be unjustly enriched, however, if she. is allowed to keep the $40,500 without an adjustment and receive child support.
For the reasons stated, I would remand to allow the trial court to determine what amount of child support the husband would have paid from the date of the agreement and what refund, if any, husband is entitled to receive from the $40,500 paid to wife in consideration of this void agreement.