J-E03001-15
2016 PA Super 24
AMY HUSS, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JAMES P. WEAVER,
Appellee No. 1703 WDA 2013
Appeal from the Order Entered September 25, 2013
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2013-1209
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
SHOGAN, J., LAZARUS, J., OTT, J., STABILE, J., and JENKINS, J.
OPINION BY BENDER, P.J.E.: FILED FEBRUARY 05, 2016
Amy Huss (“Huss”) appeals from the September 25, 2013 order
sustaining preliminary objections filed by James P. Weaver (“Weaver”) in
response to Huss’ contract action against Weaver. For the reasons that
follow, we reverse.
In October 2008, Huss and Weaver, who were involved in a romantic
relationship, entered into a contract (“Agreement”) in which they agreed
that if their relationship resulted in the birth of a child, Huss would have
primary physical custody and Weaver would have specified visitation rights,
and that if Weaver sought court modification of these terms he would pay
Huss $10,000 for each such attempt. The parties had a son in November
2010 and Weaver filed a complaint for custody in December 2010. Huss
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then filed a complaint alleging that Weaver had failed to abide by his
contractual promise to make the required $10,000 payments.
Specifically, Huss filed her initial complaint on March 7, 2013, alleging
a single count for breach of contract. In response to the preliminary
objections filed by Weaver, on April 19, 2013, Huss filed an amended
complaint, adding causes of action for negligent misrepresentation and
fraud. On May 7, 2013, Weaver filed preliminary objections in the nature of
demurrers to the amended complaint, asserting that the $10,000
modification provision of the Agreement violated public policy and that the
negligent misrepresentation and fraud causes of action were barred by the
economic loss doctrine. On September 25, 2013, the trial court entered the
order now on appeal and an accompanying opinion, sustaining Weaver’s
preliminary objections and dismissing Huss’ amended complaint with
prejudice.
In her amended complaint, Huss alleged that the parties entered into
the Agreement on October 17, 2008, that at that time Weaver was a
practicing attorney with the law firm of Buchanan Ingersoll & Rooney in
Pittsburgh, and that he had provided Huss with “legal representation in
various legal matters.” Amended Complaint, 4/19/13, at ¶¶ 3-6. Huss
further alleged that Weaver, along with a colleague at the Buchanan
Ingersoll & Rooney law firm, drafted the Agreement. Id. at ¶ 5. The
relevant provisions of the Agreement state as follows:
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WHEREAS, currently [Huss] is a real estate agent capable of
earning large commissions if she works excessive hours and
[Weaver] is an attorney capable of earning a large salary; and
WHEREAS, in the event that [Huss] has a child or children of
[Weaver] and the parties’ relationship is ended by either party,
whether or not the parties are married at the time of the
termination of the relationship, the parties desire to set forth
their agreement as to the custody of such child or children.
NOW THEREFORE the parties for and in consideration of the
covenants contained in the Agreement, and intending to be
legally bound thereby, agree as follows:
1. Custody. In the event that either [Weaver] or [Huss]
terminates the relationship with the other, whether or not they
are married at the time of such termination, the legal custody of
any child by this Agreement shall be shared by [Weaver] and
[Huss] shall have primary physical custody of such children. In
the event such termination of the relationship occurs, [Weaver]
agrees that he will not pursue full physical custody of any child
by this agreement and further agrees that he will not attempt to
use the fact that [Huss] must work excessive hours selling real
estate in order to earn large commissions to pursue custody of
such child or children.
2. Visitation. In the event that either [Weaver] or [Huss]
terminates the relationship with the other, whether they are
married at the time of such termination, [Weaver] shall be
entitled to unsupervised visitation with any child by this
Agreement as follows:
a. So long as the parties reside within 50 miles of one
another, [Weaver] shall be entitled to every other weekend
beginning a 7 p.m. Friday evening and ending 4 p.m.
Sunday evening. [Weaver] agrees to be responsible for
transportation.
b. In the event that the parties reside more than 50 miles
from one another, [Weaver] shall be entitled to one month
during the summer as agreed to by the parties.
c. [Huss] has the right to relocate out of state if she
desires.
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3.Support. [Weaver] agrees that, regardless of any custody
arrangement between the parties, [Weaver] waives any rights to
pursue [Huss] for child support for any child. [Weaver] further
agrees to pay [Huss] child support for any child or children to be
agreed upon by the parties or determined by Domestic Relations.
4. Modification of Agreement. This Agreement may only be
modified or amended by the parties by a written instrument
signed by both [Weaver] and [Huss]. The parties acknowledge
that this Agreement may be modified or superseded by a court
of competent jurisdiction. In the event that [Weaver] files a
complaint, motion, petition or similar pleading seeking the
modification or amendment of the custody and/or
visitation provisions set forth herein, [Weaver] agrees to
pay [Huss] $10,000 for each modification or amendment
sought.
5. Voluntary Agreement. Each party understands that in the
absence of this Agreement, as a matter of law, that he or she
might be entitled to a greater level of custody or more visitation
than is provided herein. Both parties acknowledge that they
have read this Agreement carefully and thoroughly, and each
considers the provisions of this Agreement to be fair, just and
reasonable, and that they fully understand each of its provisions
and are executing the same freely and voluntarily, without
coercion or other compulsion.
Id. at ¶ 3 (Exhibit A) (emphasis added).
Huss also alleged in her amended complaint that Weaver had breached
the highlighted portion of paragraph 4 of the Agreement. She noted that,
since the birth of their son, the parties have been “embroiled in litigation”
regarding custody and visitation issues, that Weaver filed numerous
“complaints, motions, petitions, and/or similar pleadings,” and that he failed
and refused to pay her $10,000 for each such filing. Id. at ¶¶ 9-12. Finally,
Huss contended that Weaver, as her legal advisor, either negligently or
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intentionally misrepresented to her that she should enter into the
Agreement, which “she in fact did not wish to enter,” and that he never
indicated to her that he believed any of its provisions to be against public
policy. Id. at ¶¶ 14-19, 28-32.
The trial court dismissed Huss’ complaint, ruling that the provision for
the $10,000 payments was void as against public policy. In its written
opinion in support of its sustaining of Weaver’s preliminary objections, the
trial court first cited cases holding that parents may not bargain away their
child’s right to receive child support. Trial Court Opinion, 9/25/13, at 2
(citing Knorr v. Knorr, 588 A.2d 503, 505 (Pa. 1991)). The trial court then
noted that custody agreements between parents are subject to court
modification in the best interests of the child. Id. (citing Mumma v.
Mumma, 550 A.2d 1341, 1343 (Pa. Super. 1988)). Based on these tenets,
the trial court reasoned as follows:
Imposing a fee upon [Weaver] to pay $10,000 if he
decides to file a modification of child custody is
against the public policy of assuring continuing
contact between child and parent. It substantially
impairs the Court’s power and the Commonwealth’s
duty to determine what is in a child’s best interest.
“Our paramount concern in child custody matters is
the best interests of the children.” Yates v. Yates,
963 A.2d 535, 539 (Pa. Super. 2008). It is against
public policy to impose a fee on one party in order to
determine the best interests of the child.
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Id. at 2-3.1
Huss filed a notice of appeal and the case was assigned to a three-
judge panel of this Court. Following the panel’s review, it determined that
the trial court’s ruling with respect to the $10,000 clause was in error, i.e.,
the Agreement was not unenforceable as against public policy. Thus, the
trial court’s sustaining of Weaver’s preliminary objections was overturned.
See Huss v. Weaver, 2014 PA Super 238 (Pa. Super. filed October 21,
2014). Weaver then filed a timely application for reargument before the
court en banc, which was granted by per curiam order, dated December 12,
2014. Thus, the panel decision was withdrawn on December 12, 2014.
Following the submission of briefs for the en banc argument, Huss filed
an application to strike Weaver’s substituted brief, averring that it violated
various rules of appellate procedure, because it included a recitation of
numerous facts that were not a part of the record on appeal. The
application to strike was deferred to this en banc merits panel for resolution.
See Superior Court Orders, 2/4/15, 8/24/15. Although we recognize, and
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1
The trial court also indicated that the provision in paragraph 3 of the
Agreement preventing Weaver from filing for child support from Huss if he is
ever awarded custody violates public policy. Id. at 2. In her present action,
however, Huss is not attempting to enforce this provision and thus its
enforceability is not at issue here. Moreover, its enforceability should have
no effect on the issues currently ripe for resolution, since the Agreement
contains a severability clause providing that if any of its provisions are
determined to conflict with Pennsylvania law, “the remaining terms of this
Agreement shall remain in full force and effect.” Amended Complaint,
4/19/13, at ¶ 3 (Exhibit A, ¶ 7).
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Weaver acknowledges, that some of the facts he references in his brief are
not of record, we will not strike his brief. Rather, because our standard of
review limits what we may consider in reaching our decision here, we are
able to address Huss’ issues without consideration of any facts not contained
in the complaint and the attached Agreement. See Martin v. Rite Aid of
Pennsylvania, 80 A.3d 813 (Pa. Super. 2013).
Huss raises the following issues for our review:
1. Did the lower court err in concluding that the parties’
Agreement was not enforceable as a matter of public policy?
2. Whether [Weaver, an attorney] who drafted a contract should
be estopped from asserting the contract is unenforceable when
he advised [Huss] the contract was legal and enforceable?
Huss’ Brief at 3.
Before addressing Huss’ issues, we note that we are guided by the
following:
In reviewing a trial court’s grant of preliminary objections, the
standard of review is de novo and the scope of review is plenary.
The salient facts are derived solely from the complaint and
pursuant to that standard of review, the court accepts all well-
pleaded material facts in the complaint, and all inferences
reasonably deduced therefrom must be accepted as true.
Martin, 80 A.3d at 814 (quoting Keller v. Scranton City Treasurer, 29
A.3d 436, 443 n.12 (Pa. Cmwlth. 2011) (internal citations omitted)).
Huss’ first issue on appeal requires us to determine whether the above
highlighted “$10,000 clause” is unenforceable as against public policy. In
Ferguson v. McKiernan, 940 A.2d 1236 (Pa. 2007), our Supreme Court
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instructed us on the proper legal standards to apply when deciding such
issues:
In assessing whether a contractual agreement violates public
policy
this Court is mindful that public policy is more than a
vague goal which may be used to circumvent the plain
meaning of the contract. Hall v. Amica Mut. Ins. Co.,
538 Pa. 337, 347, 648 A.2d 755, 760 (1994) [....]
Public policy is to be ascertained by reference
to the laws and legal precedents and not from
general considerations of supposed public
interest. As the term ‘public policy’ is vague,
there must be found definite indications in the
law of the sovereignty to justify the
invalidation of a contract as contrary to that
policy.... Only dominant public policy would
justify such action. In the absence of a plain
indication of that policy through long
governmental practice or statutory
enactments, or of violations of obvious ethical
or moral standards, the Court should not
assume to declare contracts ... contrary to
public policy. The courts must be content to
await legislative action.
Id. at 347–48, 648 A.2d at 760 (citations omitted). This
Court has further elaborated that:
It is only when a given policy is so obviously
for or against the public health, safety, morals
or welfare that there is a virtual unanimity of
opinion in regard to it, that a court may
constitute itself the voice of the community in
so declaring [that the contract is against public
policy].
Mamlin v. Genoe, 340 Pa. 320, 325, 17 A.2d 407, 409
(1941).
Ferguson, 940 A.2d at 1245 n.16 (quoting Eichelman v. N'wide Ins. Co.,
711 A.2d 1006, 1008 (Pa. 1998)).
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Contrary to the decision reached by the trial court, we have not
identified any “dominant public policy” grounded in governmental practice,
statutory enactments, or violations of obvious ethical or moral standards,
which provides a basis for declaring the “$10,000 clause” in the Agreement
to be unenforceable as against public policy. The trial court grounded its
analysis on Knorr, in which our Supreme Court held that parents have no
power to “bargain away the rights of their children,” and that if an
agreement between parents for child support provides “less than required or
less than can be given,” courts may ignore the agreement and require a
satisfactory level of support. Knorr, 588 A.2d at 505. Subsequent to
Knorr, this Court has routinely held that a child’s right to adequate support
payments cannot be bargained away and that any release or compromise on
child support obligations is invalid if it prejudices the child’s welfare. See,
e.g., Sams v. Sams, 808 A.2d 206, 211 (Pa. Super. 2002); Ruth F. v.
Robert B., 690 A.2d 1171, 1172 (Pa. Super. 1997); Hyde v. Hyde, 618
A.2d 406, 408 (Pa. Super. 1992).
However, no similar appellate authority exists with respect to
agreements between parents regarding custody and visitation. While
custody and visitation agreements are always subject to modification by the
courts in the best interests of the child, Mumma, 550 A.2d at 1343, we are
unaware of any cases in which Pennsylvania courts have declared such
contracts to be unenforceable as against public policy. The reason for this
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distinction would appear to be obvious, since the right to child support
belongs to the child, and thus cannot be “bargained away” by the parents.
See Kesler v. Weniger, 744 A.2d 794, 796 (Pa. Super. 2000) (“[T]he right
to support is a right of the child, not the mother or father….”). Accordingly,
when the parents agree among themselves to provide an inadequate level of
child support, the child’s rights have been violated and thus the agreement
may be declared void as against public policy. See, e.g., Sams, 808 A.2d
at 213 (“[T]he agreement [is] invalid on public policy grounds, because
Mother had no power to bargain away her children’s right to support by
reducing Father’s obligation from $3,400/month support to
$1,000/month.”).
Rights to custody and visitation, on the other hand, belong to the
parents (or guardians). 23 Pa.C.S. § 5322; Pa.R.C.P. 1915.1(b). Because
children are not mere chattel, agreements regarding custody and visitation
are always subject to court review and adjustment in the best interests of
the child. Mumma, 550 A.2d at 1343; Com. ex rel. Veihdeffer v.
Veihdeffer, 344 A.2d 613, 614 (Pa. Super. 1975) (“A child cannot be made
the subject of a contract with the same force and effect as if it were a mere
chattel….”). In no way, however, do custody and visitation agreements
involve the bargaining away of the rights of the children, and accordingly
they are not unenforceable as against public policy on the same basis as are
agreements regarding child support. See generally Lee v. Child Care
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Service Delaware County, 337 A.2d 586, 590 (Pa. 1975) (“Pennsylvania
precedents merely provide that contracts for custody of children will not
foreclose a court from making a contrary disposition in the best interests of
the child. This doctrine does not support appellants’ claim that ‘placement
agreements’ are void as against public policy.”).
The trial court nevertheless concluded that the “$10,000 clause” is
unenforceable as against public policy because it “substantially impairs the
Court’s power and the Commonwealth’s duty to determine what is in a
child’s best interests.” Trial Court Opinion, 9/25/13, at 2-3. To this end, in
its written opinion, the trial court refers to the “10,000 clause” as a “fee,” an
“impediment,” an “impairment,” and would have a “chilling effect” on the
filing of custody complaints or modification petitions. Id. at 2-5. In support
of this position, in his appellate brief Weaver cites this Court’s decision in
Kraisinger v. Kraisinger, 928 A.2d 333 (Pa. Super. 2007), a case in which
we struck down as invalid a provision in a child support agreement requiring
the mother to pay the father’s legal fees if she challenged the amount of
child support set forth in their agreement. Id. at 345. The parties’
agreement specifically provided that the attorneys’ fees provision was
included to “discourage frivolous filings.” Id. at 337. In accord with the
rationale employed in the above-discussed child support cases, we
concluded that “[w]e cannot tolerate a provision which penalizes a parent for
pursuing her children’s rights.” Id. at 345.
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The issue of whether a provision in a custody/visitation contract that
places a serious impediment on either party’s ability to seek court
modification in the best interests of the child is not presently before this
Court. No language in the Agreement at issue here provides either that the
“$10,000 clause” is intended to discourage Weaver from seeking court
intervention, or evidences that the payment would act as an impediment to
his ability to do so. Whether the “$10,000 clause” would act as an
impediment would depend, first and foremost, upon Weaver’s financial
ability to pay it. In the Agreement, however, Weaver plainly acknowledged
that he “is an attorney capable of earning a large salary.” Amended
Complaint, 4/19/13, (Exhibit A). He also straightforwardly recognized that
all of the terms of the Agreement (including the “$10,000 clause” in the
immediately preceding paragraph) are “fair, just and reasonable.” Id. at ¶
5. Finally, Weaver agreed that he fully understood each of the Agreement’s
provisions and executed it “freely and voluntarily, without coercion or other
compulsion.” Id.
As set forth above, our standard of review in this circumstance
provides that the salient facts must be derived solely from Huss’ amended
complaint (including the attached Agreement), and that we must treat all
well-pleaded material facts in the amended complaint, and all inferences
reasonably deduced therefrom, as true. Martin, 80 A.3d at 814. No facts
of record support a finding that the “$10,000 clause” constituted an
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impediment to Weaver’s ability to seek court modification of any of the
terms of the Agreement.
Huss contends that the “$10,000 clause” was intended as a “defense
fund” in the event of litigation regarding the Agreement. Huss’ Brief at 12.
While we agree with the trial court that the Agreement contains no specific
language to support this suggestion, we cannot also agree that the parol
evidence rule would bar her from testifying about her understanding of the
parties’ intentions with respect to this payment. See, e.g., Steuart v.
McChesney, 444 A.2d 659, 663 (Pa. 1982) (explaining that parol evidence
is admissible to explain, clarify, and resolve ambiguities). Whether the
parties intended to provide Huss with a “defense fund” to assist with the cost
of any future litigation may depend upon the parties’ relative abilities to
afford the expense of any such future litigation. In this regard, the first
“WHEREAS” clause in the Agreement is ambiguous, as it leaves their relative
financial capabilities unclear. Weaver is described as an attorney “capable of
earning a large salary,” while Huss is a real estate agent “capable of earning
large commissions if she works excessive hours.” Amended Complaint,
4/19/13, (Exhibit A) (emphasis added). Without parol evidence, we cannot
ascertain whether this provision intended to convey that the parties have
approximately the same capabilities to earn large salaries/commissions, or
alternatively if Weaver is best able to earn more money (since he apparently
can do so without working excessive hours, which arguably would be difficult
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for Huss to do after the birth of their child).2 In short, whether the parties
recognized Weaver’s superior ability to finance the cost of future litigation,
and thus provided for a “defense fund” in the Agreement, is not clear.
For these reasons, we conclude that the trial court erred in ruling that
the “$10,000 clause” in the Agreement is unenforceable as against public
policy. The record does not reflect that this provision constitutes any
limitation on Weaver’s ability to seek court intervention to modify the
custody and/or visitation provisions in the Agreement between these parties
in the best interests of the child.
The trial court dismissed Huss’ claims for negligent misrepresentation
and fraud because she “cannot point to any real damages.” Trial Court
Opinion, 9/25/13, at 5. However, based upon our ruling here that the
“$10,000 clause” is not unenforceable as against public policy, damages for
Weaver’s breach of this provision may be available to Huss. As a result,
dismissal of these causes of action on demurrers was also error.3
Order reversed. Case remanded. Jurisdiction relinquished.
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2
In her amended complaint, Huss alleges that Weaver drafted the
Agreement. Amended Complaint, 4/19/13, at ¶ 5. Ordinary principles of
contract interpretation provide that ambiguities are to be construed against
the drafter, Insurance Adjustment Bureau, Inc. v. Allstate Ins. Co.,
905 A.2d 462, 468 (Pa. 2006), further strengthening Huss’ contention that
the “$10,000 clause” was intended as a defense fund.
3
In light of our disposition of Huss’ first issue on appeal, it is not necessary
to address her second issue.
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President Judge Gantman and Judges Panella, Lazarus, Ott and Stabile
join this opinion.
Judge Bowes files a concurring opinion in which Judges Shogan,
Lazarus and Stabile join.
Judge Shogan concurs in the result of the majority opinion
Judge Jenkins files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2016
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