J-A07035-17


                               2017 PA Super 259

BETH ANNE F. WEBER                        :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   v.                     :
                                          :
MARK D. WEBER                             :
                                          :
                   v.                     :
                                          :
MICHAEL WEBER                             :
                                          :    No. 1312 WDA 2016
               Appellant                  :

                Appeal from the Order Entered August 8, 2016
              in the Court of Common Pleas of Crawford County
                      Civil Division at No(s): 1999-1298

BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                       FILED AUGUST 11, 2017

      Michael Weber (Son) appeals from the trial court’s August 8, 2016

order, dismissing his petition for special relief. Upon review, we vacate the

trial court’s order and remand for proceedings consistent with this opinion.

      Beth Anne F. Weber (Wife) and Mark D. Weber (Husband), were once

married, and are the parents of two children, Son, born June 1988 and a

daughter, Amanda D. Weber, born November 1994 (collectively, Children).

Prior to the parties’ divorce, Husband and Wife entered into a comprehensive

marital settlement agreement.          See Memorandum of Agreement as to

Divorce, 11/10/1999.       Pertinent to this appeal, the agreement contained,

inter alia, the following provision:

      18. POST SECONDARY EDUCATION: Parents shall share
      equally the reasonable costs of an appropriate undergraduate


* Retired Senior Judge assigned to the Superior Court
J-A07035-17


       college or other post-secondary education for [Children].
       Husband shall notify Wife in writing 30 days in advance before
       entering into any transaction in regard to investments given to
       the [Children] by their paternal grandfather including Chevron
       Stock and the account with National City. All income including
       but not limited to interest, dividends[,] and splits shall be
       reinvested in [Children’s] names. Should any action taken by
       Husband without Wife’s written consent in regard to these
       investments result in a diminution of their value, Husband shall
       be solely obligated to pay such amounts toward the post-
       secondary educations of [Children] before the calculation of the
       parties’ equal share of expenses.

Id. at 4. A divorce decree was entered on March 23, 2000.

       On November 19, 2007, Wife filed a petition for special relief seeking,

inter alia, enforcement of the above-mentioned paragraph.              While this

petition was pending before the trial court, Son filed a petition seeking to
                                                      1,2
“intervene in the above captioned matter.”                  Petition to Intervene,

4/30/2008, at 1 (unnumbered).            That same day, the trial court issued an

order which granted Son’s petition and permitted him “to intervene and join

in this action as a plaintiff.”        See Order of Court, 4/30/2008 (emphasis

added).
____________________________________________
1
   In support of his request, Son averred he was “an intended third party
beneficiary of his parents[’] contract to share the reasonable costs of an
appropriate undergraduate college education and is the real party in interest
to this litigation.” Petition to Intervene, 4/30/2008, at 2 (unnumbered).
Son sought to contest Father’s position that his share of the reasonable
costs was “conditioned upon or limited by an inferred duty on the part of
[Son] to expand certain assets given to [Son.]” Id.
2
 At the time, Son was enrolled as an undergraduate student at Florida State
University. Since then, Son has graduated Florida State and attended
pharmacy school. Son seeks Husband’s share of the expenses he incurred
during undergraduate and graduate school.



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J-A07035-17


        Following Son’s intervention in the matter, a motion for voluntary non-

suit was filed by Wife, in which all parties “agreed to the withdrawal at this

time of the [p]etition before the [trial c]ourt[.]” Motion for Voluntary Non-

Suit, 7/9/2008. The motion was granted by the trial court that same day.

        No other filings occurred until April 1, 2016, when Son filed a petition

for special relief, seeking to enforce paragraph 18 of the marital settlement

agreement. Husband filed an answer and new matter, denying responsibility

for    Son’s post-secondary education            expenses   and raising affirmative

defenses.     Husband’s Answer and New Matter, 5/26/2016.            Argument was

held on July 21, 2016, and on August 8, 2016, the trial court filed a

memorandum and order dismissing Son’s petition, finding Son lacked

standing to proceed in the matter.

        Son filed a motion for reconsideration, which was denied, and this

timely-filed appeal followed.3 On appeal, Son raises the following issues for

our consideration, which we have reordered for ease of disposition.

        I. Whether the trial court erred by raising the issue of [Son’s]
        standing sua sponte, without affording the parties an opportunity
        to present written or oral argument on the issue?

        II. Whether the trial court erred in concluding that [Son,] who
        was permitted to intervene by Order of [the trial court] dated
        April 30, 2008, lacked standing under the Divorce Code to
        pursue his petition for special relief to enforce [the] marital
        settlement agreement?

Son’s Brief at 4 (suggested answers and unnecessary capitalization omitted).
____________________________________________
3
    Both Son and the trial court complied with Pa.R.A.P. 1925.



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      We review Son’s issues mindful of the following.

      We exercise an abuse of discretion standard of review in an
      appeal from the denial of a petition for special relief under the
      Domestic Relations Code. An abuse of discretion has been
      explained by the appellate courts of this Commonwealth as more
      than an error in judgment; we may find an abuse of discretion
      only on clear and convincing evidence that the trial court
      misapplied the law or overrode it or that the judgment reached
      was manifestly unreasonable, or based on bias, ill-will, or
      partiality.

Johnson v. Johnson, 908 A.2d 290, 295 (Pa. Super. 2006) (citations

omitted).

      Son argues the trial court erred in raising the issue of standing sua

sponte.     Son’s Brief at 21-23.   In the alternative, Son disputes the trial

court’s finding, claiming he does have standing per the court’s 2008 order,

averring that when he was “granted permission to intervene, he was

afforded the same rights as his parents in enforcing the [marital settlement

agreement.]”     Id. at 15.   Further, Son contends that irrespective of the

subsequent non-suit following his intervention, he is an intended third-party

beneficiary and thus he should be permitted to enforce the agreement. Id.

at 16-17 (citing Bender v. Bender, 715 A.2d 1199 (Pa. Super. 1998)).

      In its memorandum and order, the trial court set forth the following in

support of dismissing Son’s petition.

      The non-suit, cited in Husband’s new matter, raises the issue of
      standing. Without Wife’s participation (Wife’s petition having
      been withdrawn), Son cannot avail himself of the Divorce Code’s
      provisions for special relief, a[t] least insofar as he seeks to
      enforce his parents’ postnuptial agreement. See 23 Pa.C.S. []
      § 3105 (limiting enforcement actions to the parties to such


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J-A07035-17


      agreements); cf. Chen v. Chen, [893 A.2d 87 (Pa. 2006)]
      (daughter could not intervene to enforce a support provision in
      her parents’ property settlement agreement).      [Son] must,
      instead, assuming that he qualifies as an intended third party
      beneficiary of the agreement, file a complaint of breach of
      contract.

Memorandum and Order, 8/8/2016, at 2 (unnecessary capitalization and

some citations omitted).

      Although somewhat vague, we glean the following from the trial

court’s memorandum: it dismissed Son’s petition because (1) Son could not

prevail without Wife’s participation; (2) Son’s petition was essentially a

renewed request to intervene; and (3) Son’s request to intervene was

denied because, under statute and current case law, he is unable to enforce

his parents’ postnuptial agreement. Id.

      We disagree with the trial court’s conclusions. First, despite the trial

court’s protestations to the contrary, a review of the record reveals that the

issue of Son’s standing was never raised by either party during the litigation

of the instant petition.   The trial court cites Husband’s answer and new

matter to Son’s special relief petition, which included a reference to the

previous non-suit, as evidence that this issue was raised.     However, our

review   shows   that   Husband’s   new    matter   merely   “attached”   and

“incorporated” several filings from the 2007 dispute, including the petition,

Husband’s answer, the motion for voluntary non-suit, and the subsequent




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J-A07035-17


order granting non-suit, none of which discusses or argues Son’s standing.4

Notably, Husband’s new matter refers to Son as “intervenor,” without any

indication that he disputed this designation.       Furthermore, a review of the

transcript from the October 7, 2016, likewise contains no challenge to Son’s

standing by either party.

       Thus, we conclude that the issue of Son’s standing was raised sua

sponte by the trial court, in direct contravention with our well-settled case

law. See In re Nomination Petition of deYoung, 903 A.2d 1164, 1168

(Pa. 2006) (concluding that because a question of whether a party has

standing “to maintain an action” does not implicate jurisdiction, our Supreme

Court has “consistently held that a court is prohibited from raising the issue

of standing sua sponte”).

       Second, even if the trial court did not err in raising the issue of

standing sua sponte, the trial court abused its discretion when it dismissed

Son’s petition for lack of standing, where a prior order permitted him to

intervene on the same issue.            Son’s 2008 petition to intervene sought

intervention “in the above-captioned matter.”             Petition to Intervene,

4/30/2008, at 1 (unnumbered). The court’s subsequent order permitted Son

“to intervene and join in this action as a plaintiff.”          Order of Court,

4/30/2008 (emphasis added).            Neither Son’s request nor the court order
____________________________________________
4
  The motion for voluntary non-suit does note that Son is an intervenor in
this matter, but none of the filings disputes Son’s status in the matter.




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J-A07035-17


granting it limited Son’s intervention to the pending special relief petition

filed by Wife. It is well-settled that “[a]fter the entry of an order allowing

intervention, the intervener shall have all the rights and liabilities of a party

to the action.” Pa.R.C.P. 2330(a).

      Irrespective of the foregoing, we agree with Son that he is a third-

party beneficiary to the martial settlement agreement and his intervention

into the action to enforce it is proper. As set forth in Guy v. Liederbach,

459 A.2d 744 (Pa. 1983), and cited in Chen, a determination of whether an

individual is a third-party beneficiary involves a two-prong test.

      (1) the recognition of the beneficiary’s right must be appropriate
      to effectuate the intention of the parties, and (2) the
      performance must satisfy an obligation of the promisee to pay
      money to the beneficiary or the circumstances indicate that the
      promisee intends to give the beneficiary the benefit of the
      promised performance. … [T]he application of the second part of
      the test was restricted by the first part, which implicate[s]
      standing.

Chen, at 90-91 (quotations and citations omitted). In this case, paragraph

18 provides that “[p]arents shall share equally the reasonable costs of an

appropriate undergraduate college or other post-secondary education for

[Children].” Memorandum of Agreement as to Divorce, 11/10/1999 at 4. It

is clear that the intent of this paragraph was to assist Children by sharing

the costs of Children’s education. Son is therefore a third-party beneficiary.

      As such, Son, who now enjoys all rights as a party to an action as an

intervenor and third-party beneficiary, may seek to enforce his parents’

agreement because “[u]nder Pennsylvania law, a third[-]party beneficiary’s


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J-A07035-17


rights and limitations in a contract are the same as those of the original

contracting parties.” Miller v. Allstate Ins. Co., 763 A.2d 401, 405, n. 1

(Pa. Super. 2000); See Also 23 Pa.S.C.S. § 3105(a) (“A party to an

agreement regarding matters within the jurisdiction of the court under this

part, whether or not the agreement has been merged or incorporated into

the decree, may utilize a remedy or sanction set forth in this part to enforce

the agreement to the same extent as though the agreement had been an

order of the court except as provided to the contrary in the agreement.”).

       Third, even assuming arguendo that Son’s intervenor status was

extinguished following the voluntary non-suit, we fail to see how Son, who

was permitted to intervene in the prior action upon averments that he was a

third-party beneficiary to the marital settlement agreement, now lacks

standing to enforce the same.5

       Lastly, we find the case the trial court cited to in support of its

decision, Chen, supra, to be distinguishable from this case. In Chen, the

parties’ daughter sought and was permitted to intervene on her mother’s

request to enforce the martial settlement agreement.     Specifically, mother

____________________________________________
5
  The trial court provided no reason why Son’s intervention in 2008 is now
improper at this juncture. The best we can determine is that the court is
hesitant to allow Son’s litigation without Wife’s participation.          See
Memorandum and Order, 8/8/2016, at 2 (“Without Wife’s participation …
Son cannot avail himself to the Divorce Code’s provisions for special
relief[.]”). However, for the reasons cited supra, as an intervenor and third-
party beneficiary, Son may seek enforcement of the contract without Wife’s
participation.



                                           -8-
J-A07035-17


sought to enforce a provision concerning child support that father was

obligated to pay mother on a weekly basis for their daughter.              In

determining that daughter was not an intended third-party beneficiary, our

Supreme Court in Chen recognized that “many courts are reluctant, absent

unusual circumstances such as the death of a parent, to allow children to

enforce their parents’ agreements where the custodial parent was a

signatory to the agreement and the designated recipient of the

payments.” Chen, 893 A.2d at 95 (emphasis added). Agreeing with this

sentiment, our Supreme Court

       refuse[d] to enable a child to enforce her parents’ settlement
       agreement where, as here, the agreement provides for support
       payments to the custodial parent. To construe the Agreement as
       providing [d]aughter a direct interest in the individual payments
       as opposed to support generally could open a Pandora’s Box.
       Such a ruling could allow every child of divorced parents whose
       property agreement contained a provision for child support to
       bring suit against one or both parents, challenging the parents’
       compliance with the terms of the agreement.

Id. at 95–96.6
      In holding that children were unable to enforce provisions of an

agreement that provided for support payments to a custodial parent, the


____________________________________________
6
  In support of its decision, our Supreme Court cited “Drake v. Drake, 89
A.D.2d 207, 455 N.Y.S.2d 420, 424 (N.Y. App.Div. 1982) (holding that child
did not have standing as third party beneficiary to enforce separation
agreement relating to periodic support payments, but noting the children
may enforce specific provisions made exclusively for their benefit
such as promises to pay college tuition or in unusual situations such as
the death or disability of the custodial parent).” Id. at 95 (emphasis
added).




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J-A07035-17


Chen Court recognized that there were cases from our sister states that

permitted a child’s intervention.         The Court found these cases, cited by

daughter, distinguishable, as they provided a direct benefit to the child, as

opposed to payments from one parent to another for the support of a child.7

____________________________________________
7
    Within its opinion, the Chen Court provided a brief synopsis of these cases.

        Schwab v. Schwab, No. FA81 0008990S, 1993 WL 592187, * 5
        (Conn. Super. Ct. Dec. 29, 1993) (noting in an unpublished trial
        court decision that children may enforce separation agreements
        as further support for the court’s holding that mother placed
        herself in a fiduciary relationship with children through creation
        of trust in a settlement agreement); Farnsworth v.
        Farnsworth, 657 So.2d 1273 (Fla. Dist. Ct .App. 1995)
        (affirming in one paragraph decision the trial court’s holding that
        obligation to pay college expenses for child was contractual
        rather than child support obligation that could be enforced by
        child rather than mother); Noble v. Fisher, 126 Idaho 885, 894
        P.2d 118, 123 (1995) (noting in dictum that children could bring
        action to enforce parent’s contractual obligation to pay college
        tuition and book expenses); Miller v. Miller, 163 Ill.App.3d 602,
        114 Ill.Dec. 682, 516 N.E.2d 837, 844–47 (1987) (holding that,
        as a direct third party beneficiary of parents’ agreement, child
        had standing to seek a court order to enforce compliance with
        agreement to pay college expenses); Kiltz v. Kiltz, 708 N.E.2d
        600, 602 (Ind. Ct. App. 1999) (allowing children to enforce
        against father’s estate father’s agreement to maintain life
        insurance policies for their direct benefit); Rogers v. Rogers,
        662 S.2d 1111, 1114 n. 1 (1995) (noting that both mother, as
        contracting party, and daughter, as direct beneficiary, could
        enforce father’s agreement to pay support directly to child while
        child was in college); Morelli v. Morelli, 102 Nev. 326, 720
        P.2d 704, 705–06 (1986) (recognizing general reluctance to
        allow children to enforce child support provisions but granting
        child standing due to special circumstance of death of custodial
        parent); Curato v. Brain, 715 A.2d 631, 635 (R.I. 1998)
        (acknowledging that children had right to enforce provision in
        settlement agreement providing for children to receive interest
        in real property directly but determining interests were
(Footnote Continued Next Page)


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J-A07035-17


      It is clear that our Supreme Court’s holding, expressly disallowing

children from seeking to enforce their parents’ settlement agreement where

“the agreement provides for support payments to the custodial parents[,]”

did not foreclose a child’s ability to enforce a provision that provided a direct

benefit to the child, such as an agreement to pay college tuition. Id. at 95.

      For the foregoing reasons, we vacate the trial court’s order and

remand for the trial court to move forward on Son’s petition.

      Order vacated and case remanded for proceedings consistent with this

opinion. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2017




                       _______________________
(Footnote Continued)
      extinguished before they vested). The other cases cited also are
      not persuasive or directly relevant. See In re Marriage of
      Bonifas, 879 P.2d 478, 480 (Colo. Ct. App. 1994) (involving
      agreement between biological parents and parties who agreed to
      raise and financially support child despite lack of official adoption
      proceedings); Glenn v. Glenn, 53 N.C.App. 515, 281 S.E.2d 83
      (1981) (holding in one paragraph decision that children are
      proper parties in an action for an accounting for support
      payments).

Chen, 893 A.2d at 93 n.12.



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