Vestal v. Vestal
271 S.E.2d 306
N.C. Ct. App.
1980
Check Treatment
MARTIN (Harry C.), Judge.

In this appeal we are asked to interpret part of paragraph 2 of the separation agreement, set out above. In that paragraph defendant agreed to “execute a document assigning his interest to said household” to plaintiff. Defendant contends that this language is ambiguous and that the parties intended the assignment of his interest to be in trust for the benefit of the child, John Wallace. Defendant assigns as error the trial court’s conclusion of law that there is no genuine issue as to any material fact and the entry of summary judgment. He argues that his introduction of parol evidence, without objection by plaintiff, as to the meaning of the disputed term was sufficient to preclude summary judgment. We cannot agree.

In his pleadings defendant alleged that “[i]t was at no time the intention of either the Plaintiff or the Defendant that the document ... be considered a total integration of all agreements by and between the parties .... ” The evidence indicates that the separation agreement was a product of many discussions and negotiations between plaintiff and defendant. With respect to the division of property and the responsibility for maintenance of the home and care of the child the instrument clearly demonstrates that the parties intended the wife to retain full control over the household pending divorce. Defendant’s only duty was to contribute $400 per month toward John Wallace’s care and maintenance of the home. His obligation was to last only until a divorce decree was obtained. Upon divorce defendant was given the right to remove certain items of per *266 sonal property. This implies that he was to have no more involvement in the management of the household and that plaintiff was to be completely and solely responsible thereafter. We must conclude from the terms of the agreement that both parties meant for the instrument to fully represent their mutual intentions regarding the home.

Because the document appears to be complete, defendant may not introduce parol evidence that adds to or contradicts the express terms.

It appears to be well settled in this jurisdiction that parol testimony of prior or contemporaneous negotiations or conversations inconsistent with a written contract entered into between the parties, or which tends to substitute a new or different contract for the one evidenced by the writing, is incompetent. 2 Stansbury’s N.C. Evidence § 253 (Brandis Rev. 1973). This rule applies where the writing totally integrates all the terms of a contract or supersedes all other agreements relating to the transaction. The rule is otherwise where it is shown that the writing is not a full integration of the terms of the contract. The terms not included in the writing may then be shown by parol. Id., § 252.

Craig v. Kessing, 297 N.C. 32, 34-35, 253 S.E. 2d 264, 265-66 (1979). Defendant relies on Beal v. Supply Co., 36 N.C. App. 505, 244 S.E. 2d 463 (1978), as authority for allowing his parol evidence to be accepted as competent to prove an agreement to create a trust, thus precluding summary judgment against him. In Beal, this Court was construing an employment contract, which the parties agreed was only partially contained in the writing. Here we have no such concurrence between plaintiff and defendant. In Beal, we stated: “When a contract is reduced to writing, parol evidence cannot vary its terms. When a contract is partially parol and partially written, parol evidence may prove parol terms.” Id. at 508, 244 S.E. 2d at 465. We are not persuaded by defendant’s contention that the parties’ total agreement concerning the transfer of the home was not reduced to writing. Defendant may not add to the written document.

Although parol evidence may not be allowed to vary, add to, or contradict an integrated written instrument, Emerson v. Carras, 33 N.C. App. 91, 234 S.E. 2d 642 (1977), an ambiguous *267 term may be explained or construed with the aid of parol evidence. Medders v. Medders, 40 N.C. App. 681, 254 S.E. 2d 44 (1979). See 40 A.L.R. 3d 1384 (1971). The document in question makes no mention of transfer to plaintiff in any form other than a legal estate in fee simple. The law favors creation of a fee simple estate unless it is clearly shown a lesser estate was intended. See N.C. Gen. Stat. 39-1. It is true, as defendant points out in his brief, that a trust may be created by oral agreement. Thompson v. Davis, 223 N.C. 792, 28 S.E. 2d 556 (1944). To prove the existence of a parol trust, however, the evidence must be “clear, strong and convincing — that a ‘mere preponderance’ of the evidence is not sufficient to establish a parol trust.” Paul v. Neece, 244 N.C. 565, 568, 94 S.E. 2d 596, 599 (1956). See also Wells v. Dickens, 274 N.C. 203, 162 S.E. 2d 552 (1968). No such evidence is apparent in this case; we hold that the phrase “to execute a document assigning his interest” is unambiguous on its face.

An apparently precise term still may be latently ambiguous when “by reason of extraneous facts the definite and certain application of those words is found impracticable.” Miller v. Green, 183 N.C. 652, 654, 112 S.E. 417, 418 (1922). In such cases “preliminary negotiations and surrounding circumstances may be considered for the purpose of determining what the parties intended — i.e., for the purpose of ascertaining in what sense they used the ambiguous language, but not for the purpose of contradicting the written contract or varying its terms.” Id. at 654, 112 S.E. at 417-18. See also Emerson, supra.

In Rhoades v. Rhoades, 44 N.C. App. 43, 260 S.E. 2d 151 (1979), we addressed a similar issue in the interpretation of a separation agreement. In Rhoades the document contained the following paragraph:

9. The parties hereto agree that Husband shall pay to the Wife the sum of $350.00 per month as child support for the two minor children of the marriage; said payments to continue until the two minor children reach the age of eighteen (18) years.

Id. at 43, 260 S.E. 2d at 152. Upon the older child’s attaining the age of eighteen the husband attempted to reduce the monthly payment by one-half. Because the agreement did not allocate any definite part of the payment to each child, this Court held: “[T]he language of paragraph 9 of the separation agreement *268 executed by the parties is plain and unambiguous and its effect is a question of law for this Court. We further hold it constitutes an absolute obligation . .Id. at 45, 260 S.E. 2d at 153. In view of the total separation agreement in the case at bar, we hold that Rhoades controls and defendant may not rely on parol evidence to show that a conveyance in trust was intended.

Further supporting our decision is the fact that the document in dispute was prepared by defendant. “It is a rule of contracts that in case of disputed items, the interpretation of the contract will be inclined against the person who drafted it.” Contracting Co. v. Ports Authority, 284 N.C. 732, 738, 202 S.E. 2d 473, 476 (1974). Defendant is an attorney. He should be familiar with the language of the law. If he and plaintiff had intended a trust to be created at the time he prepared the separation agreement, he undoubtedly would have drafted it to so read.

There is no evidence of an agreement between plaintiff and defendant to create a trust. Defendant’s affidavit specifically negates such an agreement, in that he states “there is a lack of understanding between Plaintiff and Defendant” concerning this issue. Defendant has offered only his own allegations of the parties’ subjective intent. It is not the understanding or intent of one of the parties that controls the interpretation of a contract, but the agreement of both parties. Lumber Co. v. Lumber Co., 137 N.C. 431, 49 S.E. 946 (1905); Rhoades v. Rhoades, supra. Under Rule 56(e) of the North Carolina Rules of Civil Procedure, we find that the entry of summary judgment was proper.

We affirm.

Judges Clark and Hill concur.