                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia


JEAN HALL RUTHERFOORD, F/K/A
 JEAN HALL SCOTT
                                         MEMORANDUM OPINION * BY
v.   Record No. 2262-01-4            JUDGE RUDOLPH BUMGARDNER, III
                                              AUGUST 6, 2002
JAMES F. SCOTT


            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                    Edward L. Hogshire, Judge

          James Ray Cottrell (Christopher W.
          Schinstock; Kyle F. Bartol; Gannon &
          Cottrell, P.C., on briefs), for appellant.

          Bernard J. DiMuro (Jonathan R. Mook; DiMuro,
          Ginsberg & Mook, P.C., on brief), for
          appellee.


     Jean Hall Rutherfoord appeals the denial of her motion to

incorporate a visitation and child support agreement into the

divorce decree.   The mother contends the trial court erred in

finding the agreement was not in the best interests of the

children, violated public policy, and was not enforceable.   We

conclude the trial court could find the agreement was not in the

best interest of the children and upon that finding properly

deny the motion to incorporate.   However, the finding that the

agreement was not in the best interests of the children did not


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
require the further holding that the agreement was unenforceable

because it violated public policy.       Accordingly, we affirm the

decision to deny the motion to incorporate the agreement but

reverse the decision to the extent it rules the contract is

void.

        Jean Hall Rutherfoord and James F. Scott married in 1980

and had two children, a son born in 1981 and a daughter born in

1983.    They divorced September 30, 1986 while both parties still

resided near Charlottesville.    The final decree incorporated a

separation agreement that established shared custody of the

children, and spousal and child support for the mother of

$10,000 per month for ten years.    After the mother remarried in

1989, the parties agreed to reduce the father's child support

obligation to $500 per month per child plus certain specified

expenses.

        The mother and the children moved to Washington, D.C. in

1995.    The parties again reached agreement on visitation and

custody.    In June 1996, the father purchased a home in

Washington.    In July 1996, the trial court increased the child

support to $1,000 per month per child, and in November 1996, it

granted sole custody to the mother and established a detailed

schedule for visitation.    The visitation increasingly became a

problem.    In December 1997 and March 1998, the trial court

modified visitation and each time reduced the amount and



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increased the restrictions.   Under the last order, the children

were permitted to decline the visits with their father.

     Dissatisfied with the visitation permitted by the trial

court, the father directly contacted the mother's attorney to

explore ways to increase his visitation.   The mother's attorney

felt the disparity between the father's income, which was

$2,500,000 annually, and the mother's created tensions that

damaged his relations with his children.   The attorney suggested

that the father increase his support for the children, and they

began negotiations that resulted in the agreement dated August

1998 that the mother sought to incorporate.

     The agreement defined a precise visitation plan addressing

summer vacations, holidays, school vacations, and weekends,

which gave the father more visitation time than the existing

court decree.   If the children completed the monthly visitation,

the next month the father would pay to the mother $10,000 per

child as child support.   The sums were considerably more than

previously ordered by the trial court, but the agreement

specified the father could not withhold payment of the amount

set by the court.   If all visitation occurred, the father would

further pay "lump sum child support" of $1,000,000 to the mother

when the younger child entered college.

     The father and children initially complied with the

agreement.   In February 1999, the father brought suit in

Washington, D.C. to invalidate the agreement and compel return

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of $120,000 paid under the contract.    The mother then initiated

this proceeding in Albemarle County to have the agreement

incorporated into the divorce decree.   The father objected to

her motion and asserted that he signed the agreement under

duress, it lacked consideration, and it was void as against

public policy.   Although the parties now reside in the District

of Columbia, the District of Columbia court has stayed its

proceeding concerning the validity of the contract pending the

outcome of this proceeding in Albemarle County to incorporate

the agreement.

     The trial court found the father did not act under duress.

In a letter opinion, it expressed great concern "for the

position in which the children find themselves as a result of

the economic conditions expressed in the Agreement."   By order,

the trial court denied the motion to incorporate the agreement

into the divorce decree.

     We conclude that the evidence supported a finding that the

agreement was not in the best interest of the children.    The

trial court found "the Agreement raises concerns about coercion

and duress, which were undoubtedly not in the best interest of

the children."   That finding constituted a sufficient basis for

the trial court to deny the motion to incorporate the agreement.

     However, once the trial court made a finding sufficient to

deny the motion to incorporate the agreement, it was unnecessary



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to make further findings and void the contract as an additional

basis for rejecting incorporation of the agreement.

           Public policy has its place in the law of
           contracts, -- yet that will-o'-the-wisp of
           the law varies and changes with the
           interests, habits, need, sentiments and
           fashions of the day, and courts are averse
           to holding contracts unenforceable on the
           ground of public policy unless their
           illegality is clear and certain.

Wallihan v. Hughes, 196 Va. 117, 125, 82 S.E.2d 553, 558-59

(1954) (separation agreement which facilitated divorce would be

void in Virginia, but foreign decree incorporating it entitled

to full faith and credit in Virginia) (citations omitted).     The

presumption is against finding contracts void on public policy

grounds.   See Capps v. Capps, 216 Va. 378, 380, 219 S.E.2d 901,

903 (1975); Dexter v. Dexter, 7 Va. App. 36, 48, 371 S.E.2d 816,

822 (1988); 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))).    We reverse that

portion of the trial court's finding that the agreement was void

as against public policy because the ruling was not necessary to

resolve the issue before the court. 1   Consequently, we do not


     1
       At the time the trial court issued its letter opinion
March 1, 2001, two cases had recently held that agreements were
void if they were found not to be in the best interests of the
child. Riggins v. O'Brien, 34 Va. App. 82, 538 S.E.2d 320
(2000) (decided Dec. 12, 2000); Shoup v. Shoup, 34 Va. App. 347,
542 S.E.2d 9 (2001) (decided Feb. 27, 2001). Both decisions
were changed after the trial court ruled in this case. On

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address the issue of whether the agreement is void as against

public policy.

     Accordingly, we affirm the result reached by the trial

court.

                                                       Affirmed.




rehearing en banc, this Court upheld the Shoup agreement, Shoup
v. Shoup, 37 Va. App. 240, 556 S.E.2d 783 (2001) (en banc). In
Riggins v. O'Brien, 263 Va. 444, 559 S.E.2d 673 (2002), the
Supreme Court rejected the finding that the decree incorporating
a support agreement was void.


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