KAREN S. PATTERSON, Plaintiff, v. PHILIP E. TAYLOR, Defendant
No. COA99-815
Judge GREENE dissenting.
Appeal by defendant from order entered 13 April 1999 by Judge
Charles L. White in Guilford County District Court. Heard in the
Court of Appeals 18 April 2000.
Hatfield & Hatfield, by Kathryn K. Hatfield, for plaintiff-
appellee.
Robinson & Lawing, L.L.P., by C. Ray Grantham, Jr., and
Kristin M. Major, for defendant-appellant.
EDMUNDS, Judge.
Defendant Philip E. Taylor appeals the trial court's judgment
finding that plaintiff Karen S. Patterson did not violate their
separation agreement and ordering defendant to pay alimony. We
reverse and remand for further proceedings.
Plaintiff and defendant were married on 14 February 1975. Three sons were born of the marriage. The parties separa
ted on 16
March 1991 and later divorced. On 17 June 1991, plaintiff and
defendant entered into a separation agreement (the agreement) in
which they stated that “both parties are fit and proper persons to
have care, custody and control of the minor children” and that it
was in the “children's best interest that their custody be vested
jointly in the parties.” Pursuant to the agreement, plaintiff
retained physical custody of the two younger children, while
defendant retained physical custody of the eldest child. Defendant
acknowledged under the agreement that plaintiff could move from
North Carolina with the two children without interference from him.
The agreement additionally provided that defendant would pay
plaintiff alimony of $3,589 per month for 135 months, even if
plaintiff re-married.
Plaintiff and the two sons moved to Oklahoma in 1992.
Defendant maintained contact with the children by visiting them and
telephoning them or plaintiff weekly. In September 1994, plaintiff
informed defendant that their youngest son, who was then twelve
years old, had experimented with marijuana on one occasion. (The
behavior of this child is key to the actions taken by the parties;
to preserve his privacy, we will refer to him in this opinion as
“A.”) Plaintiff added that “A” had told her that the other son in
her custody had used LSD. Defendant responded with a letter to
plaintiff expressing his concern that she was not treating thesituation seriously and stating that he felt “A” should be removed
from his current environment to defendant's residence in North
Carolina. He ended the letter by writing:
Knowing . . . you are still unwilling to
give [”A”] a chance [in North Carolina], I can
only insist that you respect my wishes on
these following matters:
I will expect you to keep me informed
directly and to advise the children's
therapist to send me frequent reports of
problems and progress. I will be contacting
Ken directly to request these reports; if he
asks you, please confirm that I have joint
custody of the children and he is required bylaw to provide appropriate requested
information to me just as he does to you.
I want you to send me copies of the drug
testing you recently had performed on the
boys. I want you to routinely (but at
irregular and unexpected times) have drug
testing repeated and have copies of those
results sent to me also.
You must remember that I have joint
custody of the children with you. My only
interest lies in the desire to do what is best
for all my children and my family.
Defendant contacted “A's” therapist in January 1995 to discuss
the child. The therapist spoke of adjustment problems “A” was
experiencing at school but did not mention drug use. Plaintiff
continued to have “A” randomly tested for drugs from October 1994
through the summer of 1995. Although invoices for these tests were
sent to defendant, the invoices did not indicate the test results,
and defendant “assumed they were all negative.” When “A” visited
defendant in the summer of 1995, defendant had him tested and the
results were negative.
However, in September, October, and December 1995, “A” tested
positive for marijuana. Plaintiff did not advise defendant of
these test results, nor did she inform him when she enrolled “A” in
a weekly drug-counseling program. In 1996, plaintiff had an
agreement with “A” whereby he was grounded until he received a
negative drug test, but he was tested only when he chose to be
tested. Plaintiff paid for tests with negative results, while “A”
paid for tests with positive results. Defendant had no knowledge
of or involvement in this agreement because plaintiff had not
informed him about “A's” positive drug tests. When plaintiff spokewith defendant in 1996 after receiving positive test results,
she
testified that defendant, in reference to the children, “might have
vaguely said, 'How are they doing?' And I would say, 'Well,
they're doing okay.'”
“A” apparently continued using drugs because plaintiff
observed that he was “getting more and more listless and losing
weight . . . not having a lot of get up and go, [and] bad grades at
school.” In December 1996, plaintiff decided to place “A” in a
voluntary residential program approximately ninety miles from her
home. The program was to last six to twelve months, although it
could extend for a longer period. On 20 January 1997, plaintiff
wrote defendant to inform him that she was ending her dual health
insurance on the children, but she did not mention that “A” would
be entering the rehabilitation program. “A” began the program on
4 February 1997, and on 14 February 1997, plaintiff informed
defendant of “A's” problems and his whereabouts.
Defendant visited “A” at the program in June 1997. However,
after several unsuccessful attempts to contact “A” two months
later, one of “A's” counselors informed defendant that “A” was no
longer in the program. Convinced that plaintiff had breached the
agreement, defendant stopped making alimony payments to plaintiff.
Plaintiff filed suit seeking to collect alimony payments due
under the agreement. Defendant answered, denying he had breached
the agreement, and counterclaimed, demanding specific performance
or recission of the agreement. Defendant alleged that plaintiff
breached the agreement by deciding unilaterally to place “A” in aresidential substance abuse program without informing him, then
removing “A” without defendant's knowledge or consent.
The case was heard without a jury. The trial court found that
plaintiff did not breach the agreement because it placed no
“affirmative obligation on . . . either party to provide medical
records, or to consult with the other with regard to medical
treatment, substance abuse treatment, and school decisions, or to
obtain approval from the other for other decisions to be made in
the child's life.” The trial court also found “[t]here is no
evidence that plaintiff failed to provide to the defendant any
information which he requested related to the child's health,
education, or substance abuse.” The trial court ordered defendant
to make the overdue payments and to pay plaintiff's attorney fees.
Defendant appeals.
I.
[1]Defendant first argues that the trial court erred in
failing to conclude that the agreement was integrated. Although
the trial court did not make such a finding, counsel stipulated at
the hearing below and at oral argument that the agreement was
integrated. Therefore, we need not address this issue. Because
the agreement is integrated, a party's breach of its provisions can
relieve the non-breaching party from his or her alimony
obligations.
See Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d
151 (1991).
II.
[2]We next address defendant's contention that the trial
court erroneously failed to consider extrinsic evidence of the
parties' intent as to the meaning of their children's custody at
the time they executed the separation agreement. A marital
separation agreement is subject to the same rules pertaining to
enforcement as any other contract.
See Moore v. Moore, 297 N.C.
14, 252 S.E.2d 735 (1979). When a trial judge sits without a jury,
the court's findings of fact are binding on appeal if supported by
any competent evidence in the record, but the court's conclusions
of law are reviewed
de novo.
See R.L. Coleman & Co. v. City of
Asheville, 98 N.C. App. 648, 651, 392 S.E.2d 107, 108-09 (1990).
The key to this case is the meaning of the phrase “custody []
vested jointly in the parties” in the context of the agreement.
The agreement does not give a definition of the phrase, and both
parties' briefs refer to this arrangement as “joint custody.”
Because the separate living arrangements for the children to which
the parties agreed are not now contested, we assume that the phrase
“custody [] vested jointly in the parties” is used in the
separation agreement to mean “joint legal custody,” as opposed to
“joint physical custody.” As in the case
sub judice, the bench and
bar have proven adept at distinguishing in practice between
physical custody and legal custody. Nevertheless, we take this
opportunity to suggest to courts and attorneys that precision in
the use of these terms in fashioning orders and agreements may
avoid later confusion and obviate litigation
. Because there is no question about the physical custody of the
children in the case at bar, the following discussion of “joint
custody” applies only to “joint legal custody.”
In addition,
because the issue before us arises out of a voluntary separation
agreement, our holding is limited to the interpretation of the term
in such an agreement.
Other states have defined “joint custody” with varying degrees
of specificity.
See, e.g., Cal. Fam. Code §§ 3002-3004 (West
1994); Ga. Code Ann. § 19-9-6 (1999); Ind. Code § 31-9-2-67 (1997);
Mich. Comp. Laws § 722.26a (1992); N.M. Stat. Ann. § 40-4-9.1
(Michie 1999); Or. Rev. Stat. § 107.169 (1999). In contrast, North
Carolina's governing statute refers to “joint custody” but contains
neither a definition of the term nor a distinction between “joint
legal custody” and “joint physical custody.” N.C. Gen. Stat. § 50-
13.2 (1999). (As noted above, where we use the term “joint
custody” in this opinion, we specifically mean “joint legal
custody.”)
The statute is relatively unrestrictive, requiring a
court ordering “joint custody” to focus on the best interests and
welfare of the child, but otherwise allowing the court substantial
latitude in fashioning a “joint custody” arrangement. We see no
reason why parents entering a voluntary separation agreement should
not have equal latitude. Therefore, parents entering such an
agreement for “joint custody” may include or omit conditions
pertaining to the child's education, health care, religious
training, and the like. In short, the parties to a voluntary
separation agreement have considerable freedom to reach anagreement for “joint custody” that takes into account various
factors including the particularities of the relationships, the
personalities involved, the bonds between family members, the needs
of the parties, and any other appropriate features that together
make each marriage and each family unique.
A practical result of the freedom to draft individualized
separation agreements and set up specialized conditions of “joint
custody” is that a corresponding responsibility is imposed on the
parties to each agreement to allow for the possibility that matters
initially “understood” between the parties may later become hotly
contested issues. Moreover, the flexibility permitted those
drafting custody agreements does not make the term “joint custody”
infinitely elastic. The election by the parties to include the
term (or, as here, its equivalent) 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.
Cf. Black's Law Dictionary 390 (7th ed.
1999) (defining
“joint custody”).
Nevertheless, in the absence of a controlling statutory
definition or a definition in the voluntary agreement of the term
“joint custody,
” difficulties may arise where the parties to a
voluntary agreement use the term without detailing the means of its
implementation. Defendant contends that the trial court should
have considered extrinsic evidence as to the parties' intent at the
time of the execution of the agreement when they agreed to “joint
custody.” Because of the many variables inherent in an action ascomplex in human terms as a separation or divorce, we agree with
defendant that the bare term “joint custody” in a separation
agreement may be ambiguous where there is no additional specific
language in the agreement to define “joint custody” or to detail
the pertinent duties and responsibilities of the parties. In such
a case, the trial court may consider extrinsic evidence to
determine the intent of the parties at the time of the execution of
the separation agreement setting up “joint custody.”
See Bicket v.
McLean Securities, Inc., 124 N.C. App. 548, 552-53, 478 S.E.2d 518,
521 (1996).
In addition, a trial court seeking to determine the intent of
the parties at the time a voluntary agreement was signed may also
consider extrinsic evidence of the conduct of the parties as they
carry out the agreement. Indeed, because actions speak louder than
words, such evidence may be particularly persuasive; for instance,
in the case at bar, the agreement was executed in 1991 and the
parties lived under it for several years. “In contract law, where
the language presents a question of doubtful meaning and the
parties to a contract have, practically or otherwise, interpreted
the contract, the courts will ordinarily adopt the construction the
parties have given the contract
ante litem motam.”
Davison v. Duke
University, 282 N.C. 676, 713-14, 194 S.E.2d 761, 784 (1973)
(citations omitted). However, even where a trial court concludes
that extrinsic evidence of the parties' behavior implementing the
agreement is probative of the parties' intent at the time of the
execution of the agreement, the court is not free to consider suchevidence to the exclusion of other probative and admissible
evidence of the parties' intent when the agreement was executed.
In other words, if a trial court considers extrinsic evidence
pertaining to interpretation of an ambiguous term, it must consider
all relevant and material evidence. It is then the responsibility
of the trial court to determine the weight and credibility of that
evidence.
Turning now to the case at bar, the trial court correctly
noted that the agreement is “silent as to the affirmative
obligation on behalf of either party to provide medical records, or
to consult with the other with regard to medical treatment,
substance abuse treatment, and school decisions, or to obtain
approval from the other for other decisions to be made in the
child's life.” Such silence is not incompatible with “joint
custody” because as noted above, unless the parties agree to the
contrary,
each parent having joint custody pursuant to a voluntary
agreement has rights and responsibilities in the child's
upbringing, even if these rights and responsibilities are not
defined in the agreement. Nevertheless, the term “joint custody”
is ambiguous because the parties' intent as to their
responsibilities to communicate between themselves about the
children was not specified in the agreement. The trial court
considered only evidence pertaining to communication between the
parties after the agreement was executed. Therefore, the trial
court erred when it did not also consider all relevant and material
extrinsic evidence of the parties' intent at the time the agreementwas executed. On remand, the court shall permit the parties to
present extrinsic evidence of their intent as to this issue at the
time the agreement was executed. Once the court has considered the
parties' understanding of “joint custody” along with other
admissible evidence, the court can determine the applicable duties
and responsibilities of the parties. The court may then address
the issue of whether plaintiff breached the separation agreement.
The trial court's holding that plaintiff did not breach the
separation agreement is reversed. The case is remanded to the
trial court for further proceedings consistent with this opinion.
Reversed and remanded.
Judge MCGEE concurs.
Judge GREENE dissents.
=========================
GREENE, Judge, 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 flexib
ility 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 agreement
(See footnote 1)
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 custodylanguage, 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.
Footnote: 1