Opinion
Record No. 1104-94-2
Decided: January 31, 1995
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY, J. Peyton Farmer, Judge
Gary P. Webb, Special Counsel for Division of Child Support Enforcement (James S. Gilmore, III, Attorney General; William H. Hurd, Deputy Attorney General; Jane D. Hickey, Senior Assistant Attorney General; Robert B. Cousins, Jr., Senior Assistant Attorney General; Betsy S. Elliott, Senior Special Counsel for Division of Child Support Enforcement, on brief), for appellant.
No brief or argument for appellee.
Present: Judges Coleman, Bray, and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Acting on a petition seeking child support from Mark Mavis (father), which originated in the State of Florida pursuant to the Revised Uniform Enforcement of Support Act (RURESA), the trial court ruled that a prior agreement between Mavis and the child's mother had forever discharged his duty of support. The Division of Child Support Enforcement (DCSE) now appeals to this Court, arguing that the parents could not contractually impair the child's right to their support, including any attendant subrogation claims.
The parties are fully conversant with the record in this case, and we recite only those facts necessary to explain our holding.
On January 20, 1987, mother gave birth to the child, and the evidence established that Mavis was the father. On April 22, 1987, the parents entered into an agreement which provided, inter alia, that mother would "make no further claim of paternity or demand for child support against" father, in exchange for a lump sum payment to her from father. Thereafter, mother and child moved to Florida, and mother began receiving state "Aid to Families with Dependent Children" in behalf of child. When Florida, as subrogee of child, pursued a support claim against father, he asserted the agreement with mother as an absolute defense.
In Kelley v. Kelley, ___ Va. ___, 449 S.E.2d 55 (1994), the Supreme Court instructed that "the rights of children to support and maintenance . . . cannot be impinged by contract, and any contract purporting to do so is facially illegal and void." Id. at ___, 449 S.E.2d at 57. The Court further noted that a court of proper jurisdiction cannot "be precluded by agreement from exercising its power to decree child support." Id.; see also Scott v. Scott, 12 Va. App. 1245, 1247, 408 S.E.2d 579, 581 (1991). Clearly, the agreement in issue purported to contractually impair child's right to receive support and maintenance from both parents in violation of Kelley.
Accordingly, we find the offending provision of the agreement null and void and remand the case for further proceedings consistent with this opinion.
Reversed and remanded.