J-A23019-14



                             2014 PA Super 238



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,
              Court of Common Pleas of Washington County,
                     Civil Division at No(s): 2013-1209


BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.

DISSENTING OPINION BY ALLEN, J.:                 FILED OCTOBER 21, 2014

     I respectfully dissent because I would affirm the trial court’s order

sustaining the preliminary objections of Weaver and dismissing Huss’

complaint seeking enforcement of the parties’ Agreement.

     The following facts are not disputed:   The parties were romantically

involved. Weaver is an attorney, and Huss is a real estate agent. According

to Huss, at the time of the Agreement, Weaver “was a practicing attorney at

law with specialized training in the law and knowledge of the law … he and

another associate … were working on said agreement.” Complaint, 3/7/13,

¶ 4-5; Amended Complaint, 4/19/13, ¶ 4-5.            Weaver’s preliminary

objections filed in response to Huss’ complaint and amended complaint do

not specify who drafted the Agreement.
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       The Agreement prospectively delineated the parties’ custodial and child

support rights and obligations “in the event that [Huss] has a child or

children of [Weaver’s] and the parties’ relationship is ended by either

party…”     Agreement, 10/17/08, at 1.           At the time of the Agreement, the

parties had no children. Two years later, on November 3, 2010, the parties’

only child was born.1 The parties’ relationship ended, and on March 7, 2013,

Huss filed her complaint alleging Weaver’s breach of the Agreement.

       Huss seeks to enforce paragraph 4 of the Agreement, which the

Majority references as the “$10,000 clause”:

       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              or superceded by a court of competent jurisdiction. In the
              event that [Weaver] files a complaint, motion, petition or
              other similar pleading seeking the modification of the
              custody and/or visitation provision set forth herein,
              [Weaver] agrees to pay [Huss] $10,000 for each
              modification or amendment sought.

Agreement, 10/17/08, at 2.




____________________________________________


1
  Weaver filed a custody complaint against Huss on December 21, 2010, and
at the time the trial court decided Weaver’s preliminary objections, the
“custody litigation was ongoing.” Trial Court Opinion Order, 9/25/13, at 1.
See also Weaver’s Brief at 1 (“Since late 2010, [Huss] and [Weaver] have
been embroiled in litigation over numerous matters pertaining to the custody
and support of [their child] in the Washington County Court of Common
Pleas at No. 2010-10883.”).



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      Huss asserts that the trial court erred in concluding that the

Agreement is against public policy because Appellant “is not seeking a

reduction, modification or waiver of child support or custody,” and is “simply

seeking the enforcement of the defense fund of $10,000.00 agreed to in

Paragraph 4 of the [A]greement, as drafted by [Weaver].” Huss’ Brief at 11-

12. Huss avers that her “claims do not involve the right of child support or

custody.” Id. at 4. In agreement with Huss, the Majority concludes that 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.” Majority at 11.

I disagree.

      Appellant’s claim regarding the “$10,000 clause” does involve the

right of custody. As the trial court explained:

      [C]hild custody agreements are always subject to the Court’s
      scrutiny and modification of a custody agreement is always
      appropriate if it is determined that the child’s best interest
      requires a different custody arrangement. Mumma v. Mumma,
      550 A.2d 1341, 1343 (Pa. Super. 2008). In the Commonwealth
      of Pennsylvania, it is “public policy … to assure continuing
      contact between children and their parents…[.]” T.B. v. L.R.M.,
      567 Pa. 222, 230, 786 A.2d 913, 918 (2001). Public policy is
      implicated 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]. Ferguson v. McKiernan, 596
      Pa. 78, 93, 940 A.2d 1236, 1245 (2007) citing Mamlin v. Genoe,
      340 Pa. 320, 325, 17 A.2d 407, 409 (1941).

            Imposing a fee upon [Weaver] to pay $10,000 if he
      decided to file a modification of child custody is against the


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     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 interest of the
     child.

             [Huss] argues that the $10,000 is a fee imposed upon
     [Weaver] to help [Huss] pay or fund the cost of custody
     litigation. The contract, however, does not state this. No
     contractual language remotely resembles such a claim. The
     contract simply places a burden of a $10,000 charge upon
     [Weaver], payable to [Huss], each time he were to file a
     “complaint, motion, petition or other similar pleading seeking
     modification…” of custody. There is no ambiguity in any manner
     and, therefore, the parol evidence rule would apply; [Huss]
     would not be able to testify about … the intention of the $10,000
     fee. “The court might consider extrinsic or parol evidence to
     determine the parties’ intent only where the language of the
     agreement is ambiguous.” Step Plan Services v. Koresko, 17
     A.2d 401, 409-410 (Pa. Super. 2010).

             The Court finds that the agreement places impediments
     upon [Weaver] with respect to his relationship with his child and
     his child’s best interest. Evidence of this would be the clause
     that restricts [Weaver] from filing for child support if he were to
     have primary custody, as well as requiring him to pay $10,000 if
     he were to file a custody modification.         Certainly, custody
     litigation can be costly. The contract, however, acknowledges
     [Huss’] success at her profession as a real estate agent such
     that she is “capable of earning large commissions.” Therefore,
     this Court finds [Huss’] argument to be specious and bordering
     on disingenuous.

           [Huss] cites to Ferguson to support her claim that the
     contract is valid. Ferguson v. McKierna, supra. In Ferguson, the
     Supreme Court concluded that the contract entered into between
     two persons (male sperm donor and woman who was artificially
     inseminated via IVF) was not against public policy. The contract
     forbade donor to seek custody of the child and forbade mother
     from seeking child support. Five years after the birth, mother
     sought child support against the sperm donor. Id.


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            The Pennsylvania Supreme Court found the contract to be
     valid and not against public policy, ruling that the only difference
     between this situation and those persons proceeding through a
     sperm bank was that the parties knew each other.                This
     difference reveals “no obvious basis for analyzing this case any
     differently than we would a case involving an institutionally
     arranged sperm donation.” Id. at 95, 1247.

            The public policy issue before the Supreme Court did not
     surround the facts of Ferguson; the public policy issue concerned
     whether a sperm donor, whose sperm is used through artificial
     insemination or IVF to impregnate a woman, having negotiated
     an agreement outside the context of a romantic relationship to
     free themselves of financial and custodial obligations, under
     anonymous circumstances, should be required to pay child
     support based upon Knorr. To that, the Supreme Court said no.
     Therefore, it concluded that under identical circumstances,
     except the parties knowing each other, there was no material
     difference. [Ferguson] is not on point to this case. The Court
     finds that Ferguson concerns the public policy surrounding sperm
     donors, not the public policy of encouraging contact with parents
     and focusing on the best interests of a child.

           Finally, [Huss] alleged that [Weaver] fraudulently induced
     her to enter a contract that is not enforceable. Assuming that is
     true, [Huss] cannot point to any real damages. [Weaver] has
     the absolute right to file a custody action or any modification
     thereof, as well as child support. The law does not prevent him
     from doing so. A parent should not be afforded an opportunity
     to economically quantify his or her losses in disputes regarding
     children for several reasons. First, in a custody action, the
     Courts are charged to determine a child’s best interest and that
     is the focus of the Court’s function; it is not determining the
     effects of its findings upon the parents. 23 Pa. C.S.A. § 5328(a).
     Second, if one parent were contractually charged to pay for the
     other parent’s counsel fees, there would be a chilling effect on
     parents filing complaints or modification petitions. In re S.H., 71
     A.3d 973 (Pa. Super. 2013) (“the right to make decisions
     concerning the care, custody and control of one’s children is one
     of the oldest fundamental rights protected by the Due Process
     Clause of the United States Constitution”). Further, the state’s
     “compelling interest to protect children” would be impaired.
     Shepp v. Shepp, 588 Pa. 691, 705, 906 A.2d 1165, 1173 (2006).
     The only circumstance in which a parent should be able to


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     calculate a financial loss is when a statute permits a claim for
     counsel fees. See 23 Pa. C.S.A. § 4351(a); 42 Pa. C.S.A. §
     2503(7); Hopkins v. Byes, 954 A.2d 654 (Pa. Super. 2008)
     (awarding counsel fees due to mother’s violation of amended
     consent custody agreement by preventing father from seeing
     child).

Opinion Order, 9/25/13, at 2-5.

     The Domestic Relations Code provides:

     (a) Best interest of the child.—Upon petition, a court may
     modify a custody order to serve the best interest of the child.

23 Pa.C.S.A. § 5338.    A petition for modification of a child custody order

may be filed at any time.    Martin v. Martin, 562 A.2d 1389 (Pa. Super.

1989), appeal denied, 574 A.2d 70, 524 Pa. 629. We have explained:

     Unlike other judgments or decrees, an order of custody is a
     unique and delicate matter. It is never final, but is considered
     temporary in nature, subject to constant review and
     modification. Because the State has a duty to protect the
     children’s best interests and welfare, it may always entertain an
     application for modification and adjustment of custodial rights.
     The right to oversee the interests of children within this
     Commonwealth is of paramount importance.

Friedman v. Friedman, 307 A.2d 292, 295 (Pa. Super. 1973).

     Huss and Weaver may petition for custody modification at any time.

Huss characterizes the “$10,000 clause” of the parties’ Agreement as

providing her with a “defense fund” in the event that Weaver pursues

custody modification. See Appellant’s Brief at 12,13, and 19. The trial court

recognized that “the contract does not state this.” Trial Court Opinion Order,

9/25/13, at 3. Our review confirms, and the Majority agrees, Majority at 12,



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that the “$10,000 clause” does not use the term “defense fund”, and simply

references the $10,000 as “payment for each modification or amendment

sought.”    Although Huss describes the $10,000 payment for each custody

modification filing as representing a “defense fund”, it may more readily and

logically be construed as punitive and a deterrent to Weaver in pursuing

custody modification. Regardless, the “$10,000 clause” implicates the

best interests of the parties’ child because of its potential to

influence Weaver in seeking custody modification.

      The custody law of this Commonwealth is inviolable.          Here, the

“$10,000 clause” is connected inexorably to Weaver’s right to seek custody

modification. It is axiomatic that in child custody matters, “the paramount

concern is in the best interests of the child.” J.R.M. v. J.E.A., 33 A.2d 647,

650 (Pa. Super. 2011). In addition, child custody agreements by parents,

while encouraged, will always be subject to being set aside, as courts will

not be bound by such agreements. Miller v. Miller, 620 A.2d 1161, 1165

(Pa. Super. 1993).     Here, the circumstances surrounding the drafting and

execution of the parties’ Agreement are dubious, but also irrelevant to the

analysis.   In this instance, I conclude that the trial court properly invoked

the child’s best interests and public policy in finding that the Agreement was

unenforceable and sustaining Weaver’s preliminary objections.      Because I

find no error by the trial court, I would affirm its order.




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