Appeal by defendant from Parker, Judge. Judgment entered 4 October 1978 in District Court, Wake County. Heard in the Court of Appeals 29 June 1979.
Erwin, Judge. Judge Parker concurs.
The defendant contends that:
"The court committed error, in concluding, as a matter of law, that custody of the children was not determined by the Separation Agreement of June 20, 1975, between the parties, because the Separation Agreement, the Judgment of Divorce, and the conduct by and between the parties over a period exceeding six years confirms that custody was in fact vested in the defendant-appellant."
That portion of the separation agreement relating to custody of the minor children of the parties is not artfully drafted; however, we hold that the agreement is sufficient to establish permanent custody of the children with defendant. That part of the separation agreement provides:
7. The parties hereto having agreed upon the custody and support of the minor children born of the marriage, hereby covenant and stipulate, each with the other as follows:
a. It is stipulated and agreed that both party of the first part and party of the second part are fit and proper persons to have custody of the minor children born of the marriage of the parties. It is agreed that the said minor children born of the marriage of the parties presently reside with the party of the second part, (Lorraine H. Hassell Means) subject to reasonable visitation privileges. It is further provided that in the event the residences should change such that they are separated by a distance of more than 150 miles, the parties agree to arrange specific periods of visitation, including the summer months and Thanksgiving, Easter and Christmas."
In addition, the following was provided with reference to child support:
"[A]t such time as party of the second part completes her legal education and is admitted to the practice of law, or alternatively remarries, the monies paid for the support and maintenance of the minor children born of the marriage shall be reduced and the sum paid by party of the first part to party of the second part for support and maintenance of the said minor children shall be THREE HUNDRED FIFTY DOLLARS ($350.00) per month. Said payment shall continue until such time as the said children attain majority or are otherwise emancipated. Provided, however, that upon the attainment of majority or emancipation of either of the children born of the marriage of the parties, the child support payment provided herein shall be prorately reduced and shall thereafter continue at the lower rate until the attainment of majority or emancipation of the other child born of the marriage of the parties."
The whole tenor of these portions of the agreement suggests a long period of time including "that ...