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 September 25, 2013,

Court of Common Pleas, Washington County,

Civil Division at No. 2013-1209

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

OPINION BY DONOHUE, J.: FILED OCTOBER 21, 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 as 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 a colleague at the Buchanan 

Ingersoll & Rooney law firm, 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 a 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 argued 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 acknowledged 

that he “is an attorney capable of earning a large salary.” Amended 

Complaint, 10/17/2008 (Exhibit A). He also straightforwardly recognized 

that all of the terms of the Agreement (including the “$10,000 clause” in the 

immediately preceding paragraph) are “fair, just and reasonable.” Id. at ¶ 

5. Finally, Weaver agreed that he fully understood each of the Agreement’s 

provisions and executed it “freely and voluntarily, without coercion or other 

compulsion.” Id.

As set forth above, our standard of review in this circumstance 

provides that the salient facts must be derived solely from Huss’ amended 

complaint (including the attached Agreement), and that we must treat all 
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well-pleaded material facts in the amended complaint, and all inferences 

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.” Amended Complaint, 

10/17/2008 (Exhibit A) (emphasis added). Without parol evidence, we 

cannot ascertain whether this provision intended to convey that the parties 
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have approximately the same capabilities to earn large 

salaries/commissions, or alternatively if Weaver is best able to earn more 

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, 

 

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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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.

Order reversed.3 Case remanded. Jurisdiction relinquished.

Musmanno, J. joins this Opinion.

Allen, J. files a Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/2014

 

3

 In light of our disposition of Huss’ first issue on appeal, it is not necessary 

to address her second issue.