Patterson v. Taylor , 140 N.C. App. 91 ( 2000 )

Judge Greene

dissenting.

This case presents the single issue of whether the agreement between the parties, vesting child custody “jointly in the parties,” is ambiguous so as to permit the introduction of extrinsic evidence regarding the intent of the parties with respect to the agreement. I agree with the majority that the agreement is ambiguous and this case must, therefore, be reversed and remanded for the taking of evidence on the intent of the parties. I do not agree, however, that the inclusion of joint custody language in the agreement “without further definition implies a relationship where each parent has a degree of control over, and a measure of responsibility for, the child’s best interest and welfare.”

Parties to a custody agreement have complete flexibility in defining the meaning of “joint custody” as it is used in their agreement. See Lexington Ins. Co. v. Tires into Recycled Energy and Supplies, Inc., 136 N.C. App. 223, 225, 522 S.E.2d 798, 800 (1999) (parties may “ ‘bind themselves as they see fit’ by a contract, unless the contract would violate the law or is contrary to public policy”) (quoting Hall v. Refining Co., 242 N.C. 707, 709-10, 89 S.E.2d 396, 397-98 (1955)), disc. review denied, 351 N.C. 642,-S.E.2d-(2000). When custody of a child is determined pursuant to a custody agreement, any degree of control over or measure of responsibility for the child’s best interests must be found in the specific language of the agreement¹ or, in the case of an ambiguous agreement, when extrinsic evidence shows the parties intended some degree of control or responsibility to apply. See White v. Graham, 72 N.C. App. 436, 438, 325 S.E.2d 497, 499 (1985) (a separation agreement is a contract and is construed in accordance with the laws governing contracts).

In this case, the parties stated in their agreement that custody was to be vested “jointly in the parties.” Because the agreement is ambiguous as to the meaning of the joint custody language, I would remand this case to the trial court for the taking of extrinsic evidence regarding the parties’ intended meaning of this language. The meaning of the language, however, must be construed based solely on the intent of the parties.

1 . I acknowledge the general rule that when construing contracts, ordinary words are given their ordinary meaning unless an alternative meaning is provided. Biggers v. Evangelist, 71 N.C. App. 35, 42, 321 S.E.2d 524, 529 (1984), disc. review denied, 313 N.C. 327, 329 S.E.2d 384 (1985). This rule, however, has no application to the agreement in this case, as no ordinary meaning for the joint custody language used in the agreement exists. Indeed, if an ordinary meaning existed for the joint custody language used in the agreement, then the agreement would not be ambiguous.