Krickhan v. Krickhan

238 S.E.2d 184 (1977)

34 N.C. App. 363

Emily Tammera KRICKHAN v. William F. KRICKHAN, III.

No. 7628DC1048.

Court of Appeals of North Carolina.

November 2, 1977.

*186 Morris, Golding, Blue & Phillips by James N. Golding, Asheville, for plaintiff-appellee.

Floyd D. Brock by Jerry W. Miller, Asheville, for defendant-appellant.

PARKER, Judge.

Paragraph seven of the separation agreement in this case obligated defendant to make monthly payments of $221.55, of which $100.00 was allotted as alimony and $121.55 was allotted as child support. Rather than making payments directly to the wife, the agreement provided that the monthly payments should be applied directly to the mortgage on the house. Obviously, if a person becomes obligated to pay a certain sum periodically, that obligation must end sometime. However, the separation agreement failed to specify a time for termination of this obligation. Questions relating to the construction and effect of a separation agreement are ordinarily determined by the same rules which govern the interpretation of contracts generally. "A contract . . . encompasses not only its express provisions but also all such implied provisions as are necessary to effect the intention of the parties unless express terms prevent such inclusion." Lane v. Scarborough, 284 N.C. 407, 410, 200 S.E.2d 622, 624 (1973). A termination date for defendant's obligation must therefore be implied by the court, and defendant contends that the trial judge misconstrued the separation agreement when he concluded that the obligation did not terminate until plaintiff's death or remarriage. He contends that the $100.00 payments were described as alimony only for tax purposes and that their primary purpose was actually to satisfy the mortgage.

The focus of the court's inquiry in construing a contract or separation agreement is "`the intention of the parties, which is to be ascertained from the expressions used, the subject matter, the end in view, the purpose sought, and the situation of the parties at the time.'" Lane v. Scarborough, supra, 284 N.C. at 410, 200 S.E.2d at 624, quoting Electric Co. v. Insurance Co., 229 N.C. 518, 520, 50 S.E.2d 295, 297 (1948). See also Bowles v. Bowles, 237 N.C. 462, 75 S.E.2d 413 (1953). Following these criteria, we conclude that the trial court correctly construed the separation agreement. The parties specified that the $100.00 sum was to be considered alimony, and it is reasonable to conclude that they meant just that, absent a clear indication that the primary purpose of the payments was to retire the mortgage on the house. The fact that the amount of alimony and child support was set with reference to housing costs at the time of the separation does not alter this result.

This conclusion is buttressed by defendant's actions following the sale of the house. He began paying directly to plaintiff the portion of the payment ($121.55) which was designated as child support. This course of action indicates that the defendant himself interpreted the agreement to mean that the sale of the house did not terminate his obligation to continue making the payments which were originally applied on the mortgage. "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 *187 S.E.2d 761, 784 (1973). See also Goodyear v. Goodyear, 257 N.C. 374, 126 S.E.2d 113 (1962). Defendant argues that he continued making child support payments only because his duty to support his children could not be terminated by a contractual agreement. However, this argument amounts to an admission that the monthly sum of $121.55 denominated as child support was actually intended to serve that very purpose, and it logically follows that the remaining portion of the payments, a monthly sum of $100.00 denominated as alimony, was also intended to serve its stated purpose.

Furthermore, the separation agreement was drafted by defendant's attorney, and an ambiguity in a written contract should be construed against the party who prepared the instrument. Yates v. Brown, 275 N.C. 634, 170 S.E.2d 477 (1969); Windfield Corp. v. McCallum Inspection Co., 18 N.C.App. 168, 196 S.E.2d 607 (1973). The court correctly construed the instrument to require defendant to pay the amount of the mortgage payments directly to plaintiff after the sale of the house, and the judgment is therefore affirmed.

Affirmed.

MARTIN and ARNOLD, JJ., concur.