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Huss v. Weaver

Superior Court of Pennsylvania

October 21, 2014

AMY HUSS, Appellant
v.
JAMES P. WEAVER, Appellee

Appeal from the Order September 25, 2013, Court of Common Pleas, Washington County, Civil Division at No. 2013-1209

Joseph D. Seletyn, Esq.

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

OPINION

DONOHUE, J.

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, 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:

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.
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 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.

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 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].

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 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 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 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 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 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, 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.

DISSENTING OPINION

ALLEN, J.

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.

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.

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. I 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 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.
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 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, 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 the 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.


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