J-A23019-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
AMY HUSS, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : JAMES P. WEAVER, : : Appellee : No. 1703 WDA 2013
Appeal from the Order September 25, 2013, Court of Common Pleas, Washington County, Civil Division at No. 2013-1209
BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 25, 2014
Appellant, Amy Huss (“Huss”), appeals from the trial court’s grant of
preliminary objections dismissing her action against Appellee, James P.
Weaver (“Weaver”). In October 2008, Huss and Weaver entered into a
contract (the “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 then filed a complaint
alleging that Weaver has failed to abide by his contractual promise to make
the required $10,000 payments. The trial court dismissed Huss’ complaint, J-A23019-14
ruling that the provision for $10,000 payments was void against public
policy. For the reasons that follow, we reverse.
Huss filed her initial complaint on March 7, 2013, alleging a single
count for breach of contract. In response to 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 violates public policy, and that the negligent
misrepresentation and fraud causes of action are barred by the economic
loss doctrine. On September 25, 2013, the trial court entered an order and
opinion granting Weaver’s Preliminary Objections and dismissing Huss’
Amended Complaint with prejudice.
In her Amended Complaint, Huss alleges 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, 10/17/2008, at ¶¶ 3-6. Huss
further alleges that Weaver, along with an associate at the Buchanan
Ingersoll & Rooney law firm, had drafted the Agreement. Id. at 5. For
present purposes, the relevant provisions of the Agreement are 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 this 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 at 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.
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c. [Huss] has the right to relocate out of state if she desires.
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 alleges that Weaver has
breached the above-highlighted portion of the Agreement, since the birth of
their son the parties have been “embroiled in litigation” regarding custody
and visitation issues, that in those proceedings Weaver has filed numerous
“complaints, motions, petitions, and/or similar pleadings,” and that he has
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failed and refused to pay her $10,000 for each such filing. Id. at 9-12.
Finally, Huss contends that Weaver, as her legal advisor, either negligently
or intentionally misrepresented to her that she should enter into the
Agreement, which “she in fact did not wish to enter,” and that in connection
therewith he never indicated to her that he believed any of its provisions to
be against public policy. Id. at ¶¶ 14-19, 28-32.
In its written opinion in support of its grant of Weaver’s Preliminary
Objections, the trial court first cited to cases holding that parents may not
bargain away their child’s right to receive child support. Trial Court Opinion,
9/25/2013, 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
On appeal, Huss raises two issues for our consideration and
determination:
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.
In reviewing a trial court's grant of preliminary objections in the nature
of demurrers, our standard of review is de novo and the scope of our review
is plenary. See., e.g., Martin v. Rite Aid of Pennsylvania, Inc., 80 A.3d
813, 814 (Pa. Super. 2013). We must derive the salient facts solely from
the complaint, and we must treat all well-pleaded material facts in the
complaint, and all inferences reasonably deduced therefrom, as true. Id.
Huss’ first issue on appeal requires us to determine whether the above
highlighted “$10,000 clause” is unenforceable as against public policy. In
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 is determined to conflict with Pennsylvania law, “the remaining terms of the Agreement shall remain in full force and effect.” Amended Complaint, 10/17/2008, at ¶ 3 (Exhibit A, ¶ 7).
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Ferguson v. McKiernan, 940 A.2d 1236 (Pa. 2007), our Supreme Court
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].
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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)).
Contrary to 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, that provides any basis for
declaring the “$10,000 clause” in the Agreement to be unenforceable as
against public policy. The trial court founded 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).
No similar appellate authority, however, exists with respect to
agreements between parents regarding custody and visitation. While
custody and visitation agreements are always subject to modification by the
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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
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.A. § 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 sense, however, do custody and visitation agreements
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involve the bargaining away of the rights of the children, and hence they are
not unenforceable as against public policy on the same basis as are
agreements regarding child support. See generally Lee v. Child Care
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 argues 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, 9/25/2013, 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 to this Court’s decision in
Kraisinger v. Kraisinger, 928 A.2d 197 (Pa. Super. 2007), in which we
struck as invalid a provision in a child support agreement requiring the
mother to pay 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
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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.
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 acknowledges
that he “is an attorney capable of earning a large salary.” He also
straightforwardly recognizes that all of the terms of the Agreement
(including the “$10,000 clause” in the immediately preceding paragraph) are
“fair, just and reasonable.” Finally, Weaver agreed that he fully understood
each of the Agreement’s provisions and executed it “freely and voluntarily,
without coercion or other compulsion.”
As set forth above, our standard of review in this circumstance
provides that the salient facts must be devised 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
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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
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) (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.” Without parol evidence, we
cannot ascertain whether this provision intends 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
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money (since he apparently can do so without working excessive hours,
which arguably would be difficult 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, 9/25/2013, at 5. Based upon our ruling hereinabove that the
“$10,000 clause” is not unenforceable as against public policy, however,
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.
2 In her Amended Complaint, Huss alleges that Weaver drafted the Agreement. Amended Complaint, 10/17/2008, 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.
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Order reversed.3 Case remanded. Jurisdiction relinquished.
Musmanno, J. joins the Memorandum.
Allen, J. files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/25/2014
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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