Huss v. Weaver

Decision Date05 February 2016
Docket NumberNo. 1703 WDA 2013,1703 WDA 2013
Citation134 A.3d 449
Parties Amy HUSS, Appellant v. James P. WEAVER, Appellee.
CourtPennsylvania Superior Court

134 A.3d 449

Amy HUSS, Appellant
v.
James P. WEAVER, Appellee.

No. 1703 WDA 2013

Superior Court of Pennsylvania.

Argued Oct. 15, 2015.
Filed Feb. 5, 2016.


134 A.3d 450

Charles E. Kurowski, Washington, for appellant.

Mari Ann Hathaway, Washington, for appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OTT, J., STABILE, J., and JENKINS, J.

OPINION BY BENDER, P.J.E.:

Amy Huss ("Huss") appeals from the September 25, 2013 order sustaining preliminary objections filed by James P. Weaver ("Weaver") in response to Huss' contract action against Weaver. For the reasons that follow, we reverse.

In October 2008, Huss and Weaver, who were involved in a romantic relationship, entered into a contract ("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.

134 A.3d 451

Huss then filed a complaint alleging that Weaver had failed to abide by his contractual promise to make the required $10,000 payments.

Specifically, Huss filed her initial complaint on March 7, 2013, alleging a single count for breach of contract. In response to the 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 violated public policy and that the negligent misrepresentation and fraud causes of action were barred by the economic loss doctrine. On September 25, 2013, the trial court entered the order now on appeal and an accompanying opinion, sustaining Weaver's preliminary objections and dismissing Huss' amended complaint with prejudice.

In her amended complaint, Huss alleged 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, 4/19/13, at ¶¶ 3–6. Huss further alleged that Weaver, along with a colleague at the Buchanan Ingersoll & Rooney law firm, drafted the Agreement. Id. at ¶ 5. The relevant provisions of the Agreement state as follows:

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 the 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 a 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.
134 A.3d 452
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 also alleged in her amended complaint that Weaver had breached the highlighted portion of paragraph 4 of the Agreement. She noted that, since the birth of their son, the parties have been "embroiled in litigation" regarding custody and visitation issues, that Weaver filed numerous "complaints, motions, petitions, and/or similar pleadings," and that he failed and refused to pay her $10,000 for each such filing. Id. at ¶¶ 9–12. Finally, Huss contended 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 he never indicated to her that he believed any of its provisions to be against public policy. Id. at ¶¶ 14–19, 28–32.

The trial court dismissed Huss' complaint, ruling that the provision for the $10,000 payments was void as against public policy. In its written opinion in support of its sustaining of Weaver's preliminary objections, the trial court first cited cases holding that parents may not bargain away their child's right to receive child support. Trial Court Opinion, 9/25/13, at 2 (citing Knorr v. Knorr, 527 Pa. 83, 588 A.2d 503, 505 (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, 380 Pa.Super. 18, 550 A.2d 1341, 1343 (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.
134 A.3d 453

Id. at 2–3.1

Huss filed a notice of appeal and the case was assigned to a three-judge panel of this Court. Following the panel's review, it determined that the trial court's ruling with respect to the $10,000 clause was in error, i.e., the Agreement was not unenforceable as against public policy. Thus, the trial court's sustaining of Weaver's preliminary objections was overturned. See Huss v. Weaver, 2014 PA Super 238 (Pa.Super. filed October 21, 2014). Weaver then filed a timely application for reargument before the court en banc, which was granted by per curiam order, dated December 12, 2014. Thus, the panel decision was withdrawn on December 12, 2014.

Following the submission of briefs for the en banc argument, Huss filed an application to strike Weaver's substituted brief, averring that it violated various rules of appellate procedure, because it included a recitation of numerous facts that were not a part of the record on appeal. The application to strike was deferred to this en banc merits panel for resolution. See Superior Court Orders, 2/4/15, 8/24/15. Although we recognize, and Weaver acknowledges,...

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4 cases
  • Grimm v. Grimm
    • United States
    • Pennsylvania Superior Court
    • 28 Septiembre 2016
    ...an order sustaining preliminary objections, our standard of review is de novo and our scope of review is plenary. Huss v. Weaver , 134 A.3d 449, 453 (Pa.Super.2016) (en banc ) (citation omitted). “On an appeal from an order sustaining preliminary objections, we accept as true all well-plead......
  • Dixon v. Nw. Mut.
    • United States
    • Pennsylvania Superior Court
    • 25 Agosto 2016
    ...an order sustaining preliminary objections, our standard of review is de novo and our scope of review is plenary. Huss v. Weaver , 134 A.3d 449, 453 (Pa.Super.2016) (citation omitted). “On an appeal from an order sustaining preliminary objections, we accept as true all well-pleaded material......
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    • 16 Marzo 2022
    ...Shovel Transfer & Storage, Inc. v. Pennsylvania Liquor Control Bd., 559 Pa. 56, 67, 739 A.2d 133, 139 (1999) ); Huss v. Weaver, 2016 PA Super 24, 134 A.3d 449, 456 n.2 (2016).79 68 Pa. Stat. and Cons. Stat. Ann. § 3301.80 68 Pa. Stat. and Cons. Stat. Ann. § 3302(a).81 Id. 82 68 Pa. Stat. an......
  • Powell v. Unemployment Comp. Bd. of Review, No. 927 MAL 2015.
    • United States
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