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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 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 MEMORANDUM BY ALLEN, J.: FILED SEPTEMBER 25, 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or superceded by a court of competent jurisdiction.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. 

We 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 our 

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.