Weber, B. v. Weber, M. v. Weber, M.

J-A07035-17
2017 Pa. Super. 259
BETH ANNE F. WEBER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARK D. WEBER :
:
v. :
:
MICHAEL WEBER :
: No. 1312 WDA 2016
Appellant :
Appeal from the Order Entered August 8, 2016
in the Court of Common Pleas of Crawford County
Civil Division at No(s): 1999-1298
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED AUGUST 11, 2017
Michael Weber (Son) appeals from the trial court’s August 8, 2016
order, dismissing his petition for special relief. Upon review, we vacate the
trial court’s order and remand for proceedings consistent with this opinion.
Beth Anne F. Weber (Wife) and Mark D. Weber (Husband), were once
married, and are the parents of two children, Son, born June 1988 and a
daughter, Amanda D. Weber, born November 1994 (collectively, Children).
Prior to the parties’ divorce, Husband and Wife entered into a comprehensive
marital settlement agreement. See Memorandum of Agreement as to
Divorce, 11/10/1999. Pertinent to this appeal, the agreement contained,
inter alia, the following provision:
18. POST SECONDARY EDUCATION: Parents shall share
equally the reasonable costs of an appropriate undergraduate
* Retired Senior Judge assigned to the Superior Court
J-A07035-17
college or other post-secondary education for [Children].
Husband shall notify Wife in writing 30 days in advance before
entering into any transaction in regard to investments given to
the [Children] by their paternal grandfather including Chevron
Stock and the account with National City. All income including
but not limited to interest, dividends[,] and splits shall be
reinvested in [Children’s] names. Should any action taken by
Husband without Wife’s written consent in regard to these
investments result in a diminution of their value, Husband shall
be solely obligated to pay such amounts toward the post-
secondary educations of [Children] before the calculation of the
parties’ equal share of expenses.
Id. at 4. A divorce decree was entered on March 23, 2000.
On November 19, 2007, Wife filed a petition for special relief seeking,
inter alia, enforcement of the above-mentioned paragraph. While this
petition was pending before the trial court, Son filed a petition seeking to
1,2
“intervene in the above captioned matter.” Petition to Intervene,
4/30/2008, at 1 (unnumbered). That same day, the trial court issued an
order which granted Son’s petition and permitted him “to intervene and join
in this action as a plaintiff.” See Order of Court, 4/30/2008 (emphasis
added).
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1
In support of his request, Son averred he was “an intended third party
beneficiary of his parents[’] contract to share the reasonable costs of an
appropriate undergraduate college education and is the real party in interest
to this litigation.” Petition to Intervene, 4/30/2008, at 2 (unnumbered).
Son sought to contest Father’s position that his share of the reasonable
costs was “conditioned upon or limited by an inferred duty on the part of
[Son] to expand certain assets given to [Son.]” Id.
2
At the time, Son was enrolled as an undergraduate student at Florida State
University. Since then, Son has graduated Florida State and attended
pharmacy school. Son seeks Husband’s share of the expenses he incurred
during undergraduate and graduate school.
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Following Son’s intervention in the matter, a motion for voluntary non-
suit was filed by Wife, in which all parties “agreed to the withdrawal at this
time of the [p]etition before the [trial c]ourt[.]” Motion for Voluntary Non-
Suit, 7/9/2008. The motion was granted by the trial court that same day.
No other filings occurred until April 1, 2016, when Son filed a petition
for special relief, seeking to enforce paragraph 18 of the marital settlement
agreement. Husband filed an answer and new matter, denying responsibility
for Son’s post-secondary education expenses and raising affirmative
defenses. Husband’s Answer and New Matter, 5/26/2016. Argument was
held on July 21, 2016, and on August 8, 2016, the trial court filed a
memorandum and order dismissing Son’s petition, finding Son lacked
standing to proceed in the matter.
Son filed a motion for reconsideration, which was denied, and this
timely-filed appeal followed.3 On appeal, Son raises the following issues for
our consideration, which we have reordered for ease of disposition.
I. Whether the trial court erred by raising the issue of [Son’s]
standing sua sponte, without affording the parties an opportunity
to present written or oral argument on the issue?
II. Whether the trial court erred in concluding that [Son,] who
was permitted to intervene by Order of [the trial court] dated
April 30, 2008, lacked standing under the Divorce Code to
pursue his petition for special relief to enforce [the] marital
settlement agreement?
Son’s Brief at 4 (suggested answers and unnecessary capitalization omitted).
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3
Both Son and the trial court complied with Pa.R.A.P. 1925.
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We review Son’s issues mindful of the following.
We exercise an abuse of discretion standard of review in an
appeal from the denial of a petition for special relief under the
Domestic Relations Code. An abuse of discretion has been
explained by the appellate courts of this Commonwealth as more
than an error in judgment; we may find an abuse of discretion
only on clear and convincing evidence that the trial court
misapplied the law or overrode it or that the judgment reached
was manifestly unreasonable, or based on bias, ill-will, or
partiality.
Johnson v. Johnson, 908 A.2d 290, 295 (Pa. Super. 2006) (citations
omitted).
Son argues the trial court erred in raising the issue of standing sua
sponte. Son’s Brief at 21-23. In the alternative, Son disputes the trial
court’s finding, claiming he does have standing per the court’s 2008 order,
averring that when he was “granted permission to intervene, he was
afforded the same rights as his parents in enforcing the [marital settlement
agreement.]” Id. at 15. Further, Son contends that irrespective of the
subsequent non-suit following his intervention, he is an intended third-party
beneficiary and thus he should be permitted to enforce the agreement. Id.
at 16-17 (citing Bender v. Bender, 715 A.2d 1199 (Pa. Super. 1998)).
In its memorandum and order, the trial court set forth the following in
support of dismissing Son’s petition.
The non-suit, cited in Husband’s new matter, raises the issue of
standing. Without Wife’s participation (Wife’s petition having
been withdrawn), Son cannot avail himself of the Divorce Code’s
provisions for special relief, a[t] least insofar as he seeks to
enforce his parents’ postnuptial agreement. See 23 Pa.C.S. []
§ 3105 (limiting enforcement actions to the parties to such
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agreements); cf. Chen v. Chen, [893 A.2d 87 (Pa. 2006)]
(daughter could not intervene to enforce a support provision in
her parents’ property settlement agreement). [Son] must,
instead, assuming that he qualifies as an intended third party
beneficiary of the agreement, file a complaint of breach of
contract.
Memorandum and Order, 8/8/2016, at 2 (unnecessary capitalization and
some citations omitted).
Although somewhat vague, we glean the following from the trial
court’s memorandum: it dismissed Son’s petition because (1) Son could not
prevail without Wife’s participation; (2) Son’s petition was essentially a
renewed request to intervene; and (3) Son’s request to intervene was
denied because, under statute and current case law, he is unable to enforce
his parents’ postnuptial agreement. Id.
We disagree with the trial court’s conclusions. First, despite the trial
court’s protestations to the contrary, a review of the record reveals that the
issue of Son’s standing was never raised by either party during the litigation
of the instant petition. The trial court cites Husband’s answer and new
matter to Son’s special relief petition, which included a reference to the
previous non-suit, as evidence that this issue was raised. However, our
review shows that Husband’s new matter merely “attached” and
“incorporated” several filings from the 2007 dispute, including the petition,
Husband’s answer, the motion for voluntary non-suit, and the subsequent
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order granting non-suit, none of which discusses or argues Son’s standing.4
Notably, Husband’s new matter refers to Son as “intervenor,” without any
indication that he disputed this designation. Furthermore, a review of the
transcript from the October 7, 2016, likewise contains no challenge to Son’s
standing by either party.
Thus, we conclude that the issue of Son’s standing was raised sua
sponte by the trial court, in direct contravention with our well-settled case
law. See In re Nomination Petition of deYoung, 903 A.2d 1164, 1168
(Pa. 2006) (concluding that because a question of whether a party has
standing “to maintain an action” does not implicate jurisdiction, our Supreme
Court has “consistently held that a court is prohibited from raising the issue
of standing sua sponte”).
Second, even if the trial court did not err in raising the issue of
standing sua sponte, the trial court abused its discretion when it dismissed
Son’s petition for lack of standing, where a prior order permitted him to
intervene on the same issue. Son’s 2008 petition to intervene sought
intervention “in the above-captioned matter.” Petition to Intervene,
4/30/2008, at 1 (unnumbered). The court’s subsequent order permitted Son
“to intervene and join in this action as a plaintiff.” Order of Court,
4/30/2008 (emphasis added). Neither Son’s request nor the court order
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4
The motion for voluntary non-suit does note that Son is an intervenor in
this matter, but none of the filings disputes Son’s status in the matter.
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granting it limited Son’s intervention to the pending special relief petition
filed by Wife. It is well-settled that “[a]fter the entry of an order allowing
intervention, the intervener shall have all the rights and liabilities of a party
to the action.” Pa.R.C.P. 2330(a).
Irrespective of the foregoing, we agree with Son that he is a third-
party beneficiary to the martial settlement agreement and his intervention
into the action to enforce it is proper. As set forth in Guy v. Liederbach,
459 A.2d 744 (Pa. 1983), and cited in Chen, a determination of whether an
individual is a third-party beneficiary involves a two-prong test.
(1) the recognition of the beneficiary’s right must be appropriate
to effectuate the intention of the parties, and (2) the
performance must satisfy an obligation of the promisee to pay
money to the beneficiary or the circumstances indicate that the
promisee intends to give the beneficiary the benefit of the
promised performance. … [T]he application of the second part of
the test was restricted by the first part, which implicate[s]
standing.
Chen, at 90-91 (quotations and citations omitted). In this case, paragraph
18 provides that “[p]arents shall share equally the reasonable costs of an
appropriate undergraduate college or other post-secondary education for
[Children].” Memorandum of Agreement as to Divorce, 11/10/1999 at 4. It
is clear that the intent of this paragraph was to assist Children by sharing
the costs of Children’s education. Son is therefore a third-party beneficiary.
As such, Son, who now enjoys all rights as a party to an action as an
intervenor and third-party beneficiary, may seek to enforce his parents’
agreement because “[u]nder Pennsylvania law, a third[-]party beneficiary’s
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rights and limitations in a contract are the same as those of the original
contracting parties.” Miller v. Allstate Ins. Co., 763 A.2d 401, 405, n. 1
(Pa. Super. 2000); See Also 23 Pa.S.C.S. § 3105(a) (“A party to an
agreement regarding matters within the jurisdiction of the court under this
part, whether or not the agreement has been merged or incorporated into
the decree, may utilize a remedy or sanction set forth in this part to enforce
the agreement to the same extent as though the agreement had been an
order of the court except as provided to the contrary in the agreement.”).
Third, even assuming arguendo that Son’s intervenor status was
extinguished following the voluntary non-suit, we fail to see how Son, who
was permitted to intervene in the prior action upon averments that he was a
third-party beneficiary to the marital settlement agreement, now lacks
standing to enforce the same.5
Lastly, we find the case the trial court cited to in support of its
decision, Chen, supra, to be distinguishable from this case. In Chen, the
parties’ daughter sought and was permitted to intervene on her mother’s
request to enforce the martial settlement agreement. Specifically, mother
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5
The trial court provided no reason why Son’s intervention in 2008 is now
improper at this juncture. The best we can determine is that the court is
hesitant to allow Son’s litigation without Wife’s participation. See
Memorandum and Order, 8/8/2016, at 2 (“Without Wife’s participation …
Son cannot avail himself to the Divorce Code’s provisions for special
relief[.]”). However, for the reasons cited supra, as an intervenor and third-
party beneficiary, Son may seek enforcement of the contract without Wife’s
participation.
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sought to enforce a provision concerning child support that father was
obligated to pay mother on a weekly basis for their daughter. In
determining that daughter was not an intended third-party beneficiary, our
Supreme Court in Chen recognized that “many courts are reluctant, absent
unusual circumstances such as the death of a parent, to allow children to
enforce their parents’ agreements where the custodial parent was a
signatory to the agreement and the designated recipient of the
payments.” Chen, 893 A.2d at 95 (emphasis added). Agreeing with this
sentiment, our Supreme Court
refuse[d] to enable a child to enforce her parents’ settlement
agreement where, as here, the agreement provides for support
payments to the custodial parent. To construe the Agreement as
providing [d]aughter a direct interest in the individual payments
as opposed to support generally could open a Pandora’s Box.
Such a ruling could allow every child of divorced parents whose
property agreement contained a provision for child support to
bring suit against one or both parents, challenging the parents’
compliance with the terms of the agreement.
Id. at 95–96.6
In holding that children were unable to enforce provisions of an
agreement that provided for support payments to a custodial parent, the
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6
In support of its decision, our Supreme Court cited “Drake v. Drake, 89
A.D.2d 207, 455 N.Y.S.2d 420, 424 (N.Y. App.Div. 1982) (holding that child
did not have standing as third party beneficiary to enforce separation
agreement relating to periodic support payments, but noting the children
may enforce specific provisions made exclusively for their benefit
such as promises to pay college tuition or in unusual situations such as
the death or disability of the custodial parent).” Id. at 95 (emphasis
added).
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Chen Court recognized that there were cases from our sister states that
permitted a child’s intervention. The Court found these cases, cited by
daughter, distinguishable, as they provided a direct benefit to the child, as
opposed to payments from one parent to another for the support of a child.7
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7
Within its opinion, the Chen Court provided a brief synopsis of these cases.
Schwab v. Schwab, No. FA81 0008990S, 1993 WL 592187, * 5
(Conn. Super. Ct. Dec. 29, 1993) (noting in an unpublished trial
court decision that children may enforce separation agreements
as further support for the court’s holding that mother placed
herself in a fiduciary relationship with children through creation
of trust in a settlement agreement); Farnsworth v.
Farnsworth, 657 So. 2d 1273 (Fla. Dist. Ct .App. 1995)
(affirming in one paragraph decision the trial court’s holding that
obligation to pay college expenses for child was contractual
rather than child support obligation that could be enforced by
child rather than mother); Noble v. Fisher, 126 Idaho 885, 894
P.2d 118, 123 (1995) (noting in dictum that children could bring
action to enforce parent’s contractual obligation to pay college
tuition and book expenses); Miller v. Miller, 163 Ill.App.3d 602,
114 Ill. Dec. 682, 516 N.E.2d 837, 844–47 (1987) (holding that,
as a direct third party beneficiary of parents’ agreement, child
had standing to seek a court order to enforce compliance with
agreement to pay college expenses); Kiltz v. Kiltz, 708 N.E.2d
600, 602 (Ind. Ct. App. 1999) (allowing children to enforce
against father’s estate father’s agreement to maintain life
insurance policies for their direct benefit); Rogers v. Rogers,
662 S.2d 1111, 1114 n. 1 (1995) (noting that both mother, as
contracting party, and daughter, as direct beneficiary, could
enforce father’s agreement to pay support directly to child while
child was in college); Morelli v. Morelli, 102 Nev. 326, 720
P.2d 704, 705–06 (1986) (recognizing general reluctance to
allow children to enforce child support provisions but granting
child standing due to special circumstance of death of custodial
parent); Curato v. Brain, 715 A.2d 631, 635 (R.I. 1998)
(acknowledging that children had right to enforce provision in
settlement agreement providing for children to receive interest
in real property directly but determining interests were
(Footnote Continued Next Page)
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It is clear that our Supreme Court’s holding, expressly disallowing
children from seeking to enforce their parents’ settlement agreement where
“the agreement provides for support payments to the custodial parents[,]”
did not foreclose a child’s ability to enforce a provision that provided a direct
benefit to the child, such as an agreement to pay college tuition. Id. at 95.
For the foregoing reasons, we vacate the trial court’s order and
remand for the trial court to move forward on Son’s petition.
Order vacated and case remanded for proceedings consistent with this
opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2017
_______________________
(Footnote Continued)
extinguished before they vested). The other cases cited also are
not persuasive or directly relevant. See In re Marriage of
Bonifas, 879 P.2d 478, 480 (Colo. Ct. App. 1994) (involving
agreement between biological parents and parties who agreed to
raise and financially support child despite lack of official adoption
proceedings); Glenn v. Glenn, 53 N.C.App. 515, 281 S.E.2d 83
(1981) (holding in one paragraph decision that children are
proper parties in an action for an accounting for support
payments).
Chen, 893 A.2d at 93 n.12.
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