Stephen Elwood Gilman, II v. Nicole Yvette Walton

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker and Elder
STEPHEN ELWOOD GILMAN, II
MEMORANDUM OPINION *
v. Record No. 1107-97-1 PER CURIAM
DECEMBER 16, 1997
NICOLE YVETTE WALTON
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
(Marlene Woodall, on brief), for appellant.
(Brandon Beach; Tidewater Legal Aid Society,
on brief), for appellee.
Stephen Elwood Gilman, II, (father) appeals the decision of
the circuit court refusing to incorporate into its order an
agreement signed by father and Nicole Yvette Walton (mother).
Father contends the trial court erred by finding the agreement to
be ambiguous and abused its discretion by refusing to incorporate
the agreement into its order. Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the decision of the
trial court. See Rule 5A:27.
Father filed a petition seeking to modify the current
custody arrangement and award him sole custody of the parties'
only child. In support of that petition, father asked the trial
court to affirm, ratify, and incorporate into its decree an
agreement purportedly signed by the parties. The agreement
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
presented by father provided, in pertinent part, as follows:
I, [MOTHER], AGREE TO GIVE LEGAL CARE AND
CONTROL TO [FATHER] UNTIL DECEMBER WHEN AT
SUCH TIME A FINAL DIVORCE DECREE IS HANDED
DOWN. I AGREE IN THE DIVORCE TO GIVE CUSTODY
TO [FATHER] WITH LIBERAL AND REASONABLE
RIGHTS TO VISITATION . . . :
* * * * * * *
C) MOTHER RECEIVING TWO CONSECUTIVE WEEKS
VISITATION STARTING AT THE BEGINNING OF EVERY
OTHER MONTH AND SUMMER VACATIONS AND THAT
THIS VISITATION WILL BEGIN IN [SIC] AT THE
END OF DECEMBER WHETHER OR NOT FINAL DIVORCE
DECREE IS HANDED DOWN IN DECEMBER.
* * * * * * *
E) ON ODD NUMBERED YEARS THE MOTHER WILL
HAVE THE CHILD ON CHRISTMAS AND THE FOURTH OF
JULY AND THE FATHER WILL HAVE HIM ON
THANKSGIVING AND LABOR DAY. ON EVEN NUMBERED
YEARS THE FATHER WILL [SIC] THE CHILD ON
CHRISTMAS AND THE FOURTH OF JULY AND THE
MOTHER WILL HAVE HIM ON THANKSGIVING AND
LABOR DAY.
* * * * * * *
IT HAS BEEN SIGNED AND WITNESSED ON THIS THE
25TH DAY OF OCTOBER.
The trial court refused to incorporate the agreement into its
decree, finding the agreement to be ambiguous because it did not
refer to the parties' child by name.
"The question whether a writing is ambiguous is one of law,
not of fact." Tuomala v. Regent Univ., 252 Va. 368, 374, 477
S.E.2d 501, 505 (1996). "[O]n appeal if all the evidence which
is necessary to construe a contract was presented to the trial
court and is before the reviewing court, the meaning and effect
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of the contract is a question of law which can readily be
ascertained by this court." Fry v. Schwarting, 4 Va. App. 173,
180, 355 S.E.2d 342, 346 (1987).
We agree with the trial court's conclusion that the
agreement was ambiguous. The undated agreement 1 did not identify
the child and made only a passing reference to the child's
gender. However, that does not in itself make the agreement
unenforceable.
When the language of a contract is ambiguous,
parol evidence is admissible, not to
contradict or vary contract terms, but to
establish the real contract between the
parties. The construction of an ambiguous
contract is a matter submitted to the trier
of fact, who must examine the extrinsic
evidence to determine the intention of the
parties.
Tuomala, 252 Va. at 374, 477 S.E.2d at 505 (citation omitted).
Parol evidence was admissible to establish that the parties had
only one child. The trial court allowed father to introduce
parol evidence, but found that, because it did not state the
child's name, the agreement was ambiguous and therefore
unenforceable.
While we find parol evidence was admissible to dispel any
ambiguity as to the child whose custody was at issue, we do not
find that the court erred in denying father's motion for sole
custody based upon the parties' agreement. The parties did not
1
The agreement stated that it was "SIGNED . . . ON THIS THE
25TH DAY OF OCTOBER," but did not indicate the year.
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clearly agree that father would have sole custody. The agreement
purportedly gave "LEGAL CARE AND CONTROL" to father currently,
but "CUSTODY" as of the time of the final divorce. The agreement
does not indicate whether the parties intended to share legal
custody or physical custody. Without sufficient specificity, the
agreement was unenforceable, even if parol evidence identified
the child whose custody was at issue.
Under Code § 20-109.1, the trial court is authorized to
incorporate into its final decree of divorce "any valid agreement
between the parties, or provisions thereof, concerning the
conditions of the maintenance of the parties, or either of them
and the care, custody and maintenance of their minor children, or
establishing or imposing any other condition or consideration,
monetary or nonmonetary." (Emphasis added). "The circuit judge
must exercise discretion and is not required in all instances to
incorporate the agreement by reference into its decree. The
circuit judge may incorporate all, none or selected provisions of
the agreement." Owney v. Owney, 8 Va. App. 255, 259, 379 S.E.2d
745, 748 (1989). The trial court was not required under Code
§ 20-109.1 to incorporate the agreement in total. Moreover,
unlike agreements resolving property issues or spousal support,
questions of custody must be made with the best interests of the
child as the primary focus. See Code § 20-124.2(B). Therefore,
we find no error in the trial court's refusal to incorporate the
agreement presented by father into its decree.
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Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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