Facts: Negotiating a separation agreement pro se, Husband told Wife she could have lifetime health benefits from the Military even though the marriage was less than 20 years. Wife’s counsel said it could not happen, but she preferred to believe her spouse and signed the agreement.

Almost immediately after divorce, ex-husband wrote the Military to terminate ex-wife’s health benefits, saying he had previously been mistaken about her eligibility. Ex-wife sued claiming mutual mistake; and the Circuit Court awarded her a sum for lost coverage. Finding that award insufficient, ex-wife appealed.

Issue: In the context of a property settlement agreement with no children, is a contractual waiver of the right to appeal a court decision valid and binding?

Ruling: Yes. The parties had recourse under their agreement to fair and impartial judicial finality on the Circuit Court level, so they could waive any right to appeal without violating law or public policy.

Comment: The decision establishes the validity of a “no appeal” clause in “no kids” Virginia property settlement agreements for the first time. The ruling is sensible: The election of remedies has always appeared in contract terms that set a choice of law or forum, or mandate binding arbitration or a pre-court attempt at mediation. The only limit is that any such restriction cannot violate Virginia law or public policy (including probably, the unfettered right to appeal matters involving custody, visitation and child support).

A “no-appeal” clause can protect economically disadvantaged childless parties unable to advance or borrow the costs of appellate litigation.

There are a couple of interesting aspects to the facts: Wife made the catastrophic mistake of disbelieving advice of her counsel about the military retirement 20-year rule; and then her attorney compounded the error by failing to plead fraud. (The Court of Appeals points this out at Footnote 3). Proof of fraud could have enabled the judge to set aside the agreement.