                    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




                                  2
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.




                                   3
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.



                                  4
     Accordingly, the decision of the circuit court is summarily

affirmed.
                                                        Affirmed.




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