Huss v. Weaver

Should courts enforce a private agreement provision requiring one parent to pay the other parent a specified fee when filing for a custody modification? The Pennsylvania Superior Court, in Huss v. Weaver, 2016 PA Super 24 (Pa. Super. 2016), says yes.

Huss involves two parties who were in a romantic relationship. In October 2008, they entered into a formal agreement stating that if a child resulted from their relationship, regardless of whether they ever married, they would share legal custody with Huss (“Mother”) having primary physical custody and Weaver (“Father”) having specified visitation rights. The agreement also specifies that if Father seeks any modification of the agreed custodial arrangement, he would have to pay Mother $10,000 per attempt. In November 2010, the parties had a son; Father filed a custody complaint one month later. The Washington County, Pennsylvania Court of Common Pleas docket reflects numerous highly litigious filings by the parties, monthly through June 2011 and periodically thereafter.

In March 2013, Mother filed a civil complaint in Washington County, alleging a single count for breach of contract. In response, Father filed preliminary objections. In April 2013, Mother filed an amended complaint, adding causes of action for negligent misrepresentation and fraud; Father filed a second set of preliminary objections to the amended complaint in the nature of demurrers, alleging that the $10,000 modification provision of the agreement violated public policy and that the latter two causes of action were barred by the economic loss doctrine. In September 2013, the trial court entered an order sustaining Father’s preliminary objections by finding that the “$10,000 clause” was against public policy and dismissed Mother’s complaint with prejudice.

Mother’s filings asserted that Father was an attorney at a large firm in Pittsburgh, Pennsylvania and that he, along with a work colleague, drafted the October 2008 agreement. Mother further alleged that she was a real estate agent who had sought legal representation from Father on several legal matters in the past and that Father had told Mother that the entire agreement was enforceable at the time it was signed. Neither party was represented by independent counsel prior to signing the agreement. Although the agreement itself does not set forth the parties’ incomes, the recitals state that Mother is a real estate agent capable of earning large commissions if she works excessive hours and that Father is an attorney capable of earning a large salary. So, presumably, Father had the ability to pay the $10,000 fee.

Mother appealed the trial court’s September 2013 dismissal, raising the following issues:  1) did the lower court err in concluding that the parties’ agreement was not enforceable as a matter of public policy; and 2) whether Father, an attorney who drafted the agreement, should be estopped from asserting that the contract is unenforceable when he advised Mother that the contract was legal and enforceable?

When analyzing the first issue on appeal, the Superior Court sought the guidance of Ferguson v. McKiernan, 596 Pa. 78, 940 A.2d 1236 (Pa. 2007), which held that “in assessing whether a contractual agreement violates public policy . . . 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.” 

In Huss, the trial court relied on the Pennsylvania Supreme Court’s decision in Knorr v. Knorr, 527 Pa. 83, 588 A.2d 503, 505 (Pa. 1991)) in which the Court held — in the context of child support — that parents have no power to “bargain away the rights of their children” and that if a child support agreement between parents provides less than required or less than can be given, courts may ignore any agreement between parents and require a satisfactory level of support. Thus, the trial court concluded that the “$10,000 clause” was against public policy because enforcing it would “substantially impair the Court’s power and the Commonwealth’s duty to determine what is in a child’s best interests.” But the Superior Court found that there was not any dominant public policy grounded in governmental practice, statutory enactments or violations of ethical or moral standards, which provides a basis for declaring the “$10,000 clause” in the agreement unenforceable against public policy.

The Superior Court further stated that they did not see the “$10,000 clause” as a mechanism for prohibiting Father from seeking a modification of their custodial arrangement since there was no evidence in the record to indicate that paying that amount would be a hardship or roadblock to Father’s ability to petition. The trial court order was reversed and the case was remanded with no need to address Mother’s second question:  whether Father should be estopped from asserting that the contract was unenforceable.

One dissenting opinion was issued, stating that a contractual provision which potentially hinders or chills an interested party’s ability to ensure a custody arrangement which is in the child’s best interest is against public policy and unenforceable. From a practitioner’s perspective, I do not see how a provision for payments one agreed to make is any more chilling than any other consequence of filing a petition to modify such as the time it takes to litigate, the effect litigation will have on the children, the effect litigation will have on the parties’ ability to co-parent or the chance that the modification will be less satisfactory. While there is still no appellate authority in Pennsylvania on whether parents are permitted to bargain away their or their child’s rights in custody agreements, courts are not barred from issuing a contrary disposition if it is in the best interests of the child to do so.  See Lee, et ux. v. Child Care Service Delaware County Institution District, et al., 461 Pa. 641, 337 A.2d 586, 590 (1975); see also Miller v. Miller, 423 Pa. Super. 162, 620 A.2d 1161, 1165-66 (Pa. Super. 1993).

In light of Huss, family law practitioners should not only advise clients on provisions that clearly would not work, but also consider leveling the playing field when negotiating custody agreements. Adding a provision for the filing party to pay a certain percentage of the non-filing party’s litigation expenses and maybe capping those payments at a specific level when modifying an already agreed to provision, perhaps within a specific time frame, will serve the best interests of children by discouraging unmeritorious litigation.

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