Grady v. Grady

224 S.E.2d 282 (1976)

29 N.C. App. 402

Carole M. GRADY (now Moore) v. John W. GRADY.

No. 754DC1055.

Court of Appeals of North Carolina.

May 5, 1976.

Gene H. Kendall, Charlotte, for plaintiff appellee.

Bailey & Gaylor, by Edward G. Bailey, Jacksonville, for defendant appellant.

*283 ARNOLD, Judge.

Defendant contends that the court erred in not permitting his testimony. He argues that the separation agreement is ambiguous with respect to when the support payments will end, and he maintains that he should have been permitted to testify that it was his intention and understanding that the payments would cease upon divorce of the parties.

It is also argued by defendant that he should have been permitted to offer evidence that plaintiff had made no demand for payment since the divorce. He reasons that such evidence supports his contention that he was not required to make payments after the divorce.

The procedure in the trial court was somewhat irregular, but we disagree with defendant's contentions and find no error. The question of the intention of the parties at the time of the contract was a question of law for the court to determine. The effect of the agreement is not controlled by what one of the parties intended or understood. Absent fraud or mistake the undisclosed intention of either party is immaterial. See Root v. Insurance Co., 272 N.C. 580, 158 S.E.2d 829 (1968).

There was no allegation of fraud or mistake. The court merely construed the language of an agreement written in clear and unambiguous language. The judgment requiring defendant to pay the arrearages due at the time of the judgment is

Affirmed.

BRITT and VAUGHN, JJ., concur.