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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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,
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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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