Baird v. Baird

ARNOLD, Judge.

Plaintiff contends that the trial court erred in construing the term “net professional income” as meaning gross medical income less ordinary and necessary expenses incurred in producing such income less the state and federal income taxes on such income. We disagree.

The term “net professional income” is susceptible to more than one reasonable interpretation. It can be read as meaning medical income minus ordinary and necessary expenses or medical income less expenses and taxes on such income. No definition or explanation of the term is found in the separation agreement. Since this phrase is ambiguous, the parties’ intent as to its meaning becomes a question of fact to be resolved by the trier of fact. Harris-Teeter Supermarkets, Inc. v. Hampton, 76 N.C. App. 649, 334 S.E. 2d 81 (1985), disc. rev. denied, 315 N.C. 183, 337 S.E. 2d 857 (1985).

A trial court’s findings of fact are binding on this Court if they are supported by competent evidence. Laughter v. Lambert, 11 N.C. App. 133, 180 S.E. 2d 450 (1971). Defendant testified at trial, “I read the dictionary definition of the term ‘net income’ before entering into the Separation Agreement —it meant after deducting expenses and taxes.” Supported findings of fact will not be disturbed on appeal since the weight and credibility of the evidence are matters for the trial judge. Whitaker v. Earnhardt, 289 N.C. 260, 221 S.E. 2d 316 (1976). There is ample evidence to support the trial court’s finding that the parties intended “net professional income” to mean medical income less expenses and taxes. Plaintiffs contention is therefore rejected.

Plaintiff next contends that the trial court “erred in determining that the defendant was entitled to credit for income received by the plaintiff in determining his support obligation in the event his income decreased and the alternative provision for support payments contained in the agreement became effective.”

The trial court incorrectly held that the portion of paragraph C-2 dealing with the twenty-five percent limitation was ambiguous. This paragraph states that if the support payment required under the separation agreement for a certain year exceeds twenty-five percent of defendant’s “net professional income and/or retirement income” then the payment required by the agreement for the following year will not exceed that twenty-five percent figure. This provision merely sets a cap on what defendant will have to pay. It does not remotely suggest that the income deductions mentioned in paragraph 1 should be deducted from this twenty-five percent cap.

In the event defendant’s payment for a certain year exceeds twenty-five percent of his “net professional income and/or retirement income” then, according to the agreement, the following calculations would be proper for the next year. Any income received by plaintiff for that year should be deducted from the $27,600 figure that the agreement requires defendant to pay. If the amount remaining is more than the twenty-five percent limit, then all defendant will be required to pay is the twenty-five percent figure. The trial court was incorrect in concluding otherwise.

Plaintiff finally contends that the trial court erred in not awarding her reasonable attorneys’ fees.

The separation agreement states:

Enforcement. If it should become necessary for either party to initiate legal proceedings or secure the aid of a court to enforce the provisions of this agreement and the party initiating such action prevails, the other party shall be responsible for paying the reasonable attorneys fees and expresses (sic) of such party as determined by the court.

Concerning this matter, the trial court held:

Each party should bear their own costs and be responsible for payment of their own attorney fees since disposition of this matter was resolved by construction of the agreement, not enforcement of the agreement prior to construction and since there is not a “prevailing party” within the meaning of the Separation Agreement.

The trial court was correct in holding each party responsible for his own attorneys’ fees.

The portions of the judgment concerning attorneys’ fees and the interpretation of “net professional income” are affirmed. The portion holding that paragraph C-2 is ambiguous is reversed and the cause is remanded for proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part and remanded.

Judges Eagles and Parker concur.