dissenting:
I respectfully dissent. To permit a proper understanding of this case, it seems necessary to quote in full the trial court’s order of January 22, 1979, which today is rejected by the majority. That order reads as follows:
ORDER
This matter came before the Court on the plaintiff’s motion to enforce and modify the divorce decree, to which defendant offered opposition. The matter was presented in detail on January 12, 16 and 17, 1979 and taken under advisement by the Court, which now issues this Order based upon the record of this case and the testimony, documentary evidence, and arguments presented at the hearing.
FACTUAL BACKGROUND
1. The parties were married in New York City on November 4, 1962.
2. Two children were born of this marriage: Susan E., born November 17, 1974 and Emmett J., Jr., born September 1, 1966.
3. The parties separated on June 15, 1975 and plaintiff moved to 3110 Garfield Street on or about September 25, 1975; they were divorced in the District of Columbia May 15, 1977.
4. Prior to the divorce a Separation Agreement was signed by the parties on January 31, 1976, interpretation of sections three and four of which is the subject matter of this hearing.
5. Plaintiff was married to Alfred Fitt in the District of Columbia on January 7, 1978.
6. Defendant is a Senior Vice President of the National Bank of Washington and resides at 1673 Myrtle Street, N.W., Washington, D.C.
7. Plaintiff is Vice President of the Washington office of the College Entrance Examination Board and resides at 3110 Garfield Street, N.W., Washington D.C.
8. Legal custody of the children is in the defendant and is undisputed.
*13859. Present visitation is as follows: The children spend every other weekend with the plaintiff, as well as one-half of the vacations, a program the continuation of which is urged by the defendant. Plaintiff seeks an additional award of visitation which would allow the children to spend one-half of the “school time” with her.
10. It seems clear that both parents love their children and are concerned with their schooling, maintenance, and upbringing.
11. By letter, the children have each indicated a desire not to be consulted by the attorneys or the Court or to be forced to choose sides, a request which is honored by the Court.
12. This Court has continuing jurisdiction of this matter, Alves v. Alves, 262 A.2d 111 (D.C.App.1970).
THE AGREEMENT
The Agreement entered into by the parties on January 31,1976 consists of nineteen (19) pages, the disputed portions of which are found in paragraphs 3 and 4 which read as follows:
“3. Each party states that he or she wishes to have the custody of the minor children of the parties. In compromise of these conflicting desires, the parties agree that the Husband shall have custody of the minor children of the parties, with the right reserved to the Wife to have the children, or either of them, with her at reasonable times and places so long as the exercise of such visitation rights does not unduly interfere with prior plans of or for the children. Without in any way derogating the rights and duties of the Husband as legal custodian of both children, the principal place of abode of Susan E. Rice shall be considered to be with the Wife.
4. The parties recognize that it is not practicable to formulate specific provisions as to all of the time which the children will spend with the Wife pursuant to the foregoing paragraph. On approximately a monthly basis, the parties will review their commitments and obligations, and the commitments and obligations of the children, and will agree upon the visiting schedule for the children for the forthcoming period, keeping in mind the children’s need for continuity and other needs and interests. Without limiting the scope of the Wife’s rights under the foregoing paragraph, nor the obligation of the parties under the preceding sentence of this paragraph, the parties agree that the Wife shall have the children with her from Friday after school until Monday morning on alternate weekends, and for one-half of all school holiday periods and of the summer vacation. Without being legally bound, the Husband represents that it is his expectation that the children will spend time with the Wife in addition to the specific periods provided, including one or more overnight visits during the school week, subject always to the best interests and welfare of the children.”
Plaintiff’s position regarding these sections is that they are not specific and that they contain ambiguities such as (children are to be with Wife) “at reasonable times and places so long as the exercise of such visitation rights does not unduly interfere with prior plans of or for the children”. Paragraph 3. “The parties recognize that it is not practicable to formulate specific provisions as to all of the time which the children will spend with the Wife pursuant to the foregoing paragraph”. Paragraph 4. (Visitation periods are allotted to the Wife) . “without limiting the scope of the Wife’s rights” (to have the children with her at reasonable times).
She presented testimony by way of parol evidence that she had received assurances from the defendant that he would allow the children to spend one-half of their time not otherwise spelled out with the plaintiff, as had in fact been done during the time of separation prior to the Agreement, i. e., approximately eighteen months. (A graph *1386of the time division was presented as plaintiff’s exhibit # 5). Plaintiff admits that the language of paragraphs 3 and 4 does not on its face refer to such a division of visitation, but urges that a less than 50/50 visitation implies a stigma against her, which defendant denies.
Defendant’s position is that the language of these disputed sections is indeed clear and should be binding. He calls attention to the fact that this Agreement, and particularly these disputed sections, was the result of long and arduous negotiations between the parties and their lawyers, as well as well-meaning friends and counsellors. He urges that the document speaks for itself and suggests that this action is an attempt by the plaintiff to re-negotiate a matter that has already been settled.
Both parties agree that there exists a need for greater certainty as far as the ability to schedule the children’s (and their own) activities.
Of overriding importance in this matter is, of course, consideration of the best interests of the children despite whatever feelings of acrimony may have existed and/or presently exist, between the parties.
PLAINTIFF’S LEGAL ARGUMENT
Plaintiff cites the following cases and hornbook law to support her argument that the Court should enlarge visitation:
1. The Court may consider prior or contemporaneous negotiations to explain the contract term, see Simpson on Contracts § 101, as well as the conduct of the parties in order to determine what the parties intended the terms to mean, McGehee v. Maxfield, 256 A.2d 576 (D.C.App.1969).
2. The Court may amend the decree if a party can show that “circumstances and conditions have so changed that the best interests of the child would be served by amending the custody order”, Dawn v. Dawn, 90 U.S.App.D.C. 226, 194 F.2d 895 (1952); McGean v. McGean, 339 A.2d 384 (D.C.App.1975); Hamilton v. Hamilton, 247 A.2d 421 (D.C.App.1968).
3. “[T]he courts have the power to, and should, specify the visitation rights in detail . . . [I]t is error to order that the right of visitation shall be at the discretion of the person having custody of the child . .”. 24 Am.Jur.2d Divorce and Separation § 803.
4. The plaintiff urges that this case is distinguished from the case of Utley v. Utley, 364 A.2d 1167 (D.C.App.1976) in that Utley deals with the concept of divided custody — among other matters — and the plaintiff herein is not disputing custody in the defendant. Also, that the children here are not those of “tender years”, being 14 and 12 years old, as opposed to the three year old involved in Utley.
DEFENDANT’S LEGAL ARGUMENT
Defendant denies that paragraphs 3 and 4 of the Agreement are in any way ambiguous, or that they require any interpretation by the Court. Further, that the divorce judgment entered May 15, 1977 found as a fact that the Agreement “fully resolved all matters relating to custody” between the parties, concluding as a matter of law that the Agreement shall be ratified and approved by the court and incorporated by reference into the judgment.
Defendant indicates that the plaintiff is actually urging split custody of the children and that such would not be in the best interests of the children. Further, that Utley v. Utley, supra, holds, in part, that “generally, divided custody of a child of tender years is not favored.”
******
Based on the above, and reiterating the Findings of Fact set forth in the section entitled “Factual Background” of this Order, this Court makes the following Conclusions of Law:
1. That custody and visitation are separate and distinct concerns and custody in the defendant remains unchallenged.
2. That the best interests of the children requires that a modification of the divorce *1387decree be effected to reflect a 50/50 division of the children’s school time, the Court hereby adopting the legal position set forth by the plaintiff.
3.There exists a need for greater certainty regarding the children’s schedules.
Therefore, the Court does this 22nd day of January, 1979, Order as follows:
1. That the children shall spend alternating months of the school year with each parent, commencing on February 1, 1979 with the defendant.
2. That weekend visits within the month shall continue to be alternating and to cover the period of Friday after school until Monday morning.
3. That the summer vacation period is to remain equally divided as provided in paragraph 4, with whichever party having the children when school is concluded retaining them for the balance of that month and then alternating. Likewise, the parent having the children during the month school commences, shall retain them for the balance of that month, then alternating.
4. That the parents shall abide by the requirement that they review the children’s (and their own) commitments and obligations, and this is to be done during the week preceding the monthly change-over.
5. That neither parent shall do anything in any way which would hinder the love of the children for the other parent.
6. That all the other terms and conditions of the Agreement of January 31, 1976 are hereby ratified and confirmed.
7. Each party shall be responsible for their respective attorney’s fees.
/s/ George Herbert Goodrich GEORGE HERBERT GOODRICH Judge
It is, of course, well established that the trial court’s determination of a custody question is “subject to reversal only for clear abuse of discretion.” Moore v. Moore, D.C.App., 391 A.2d 762, 770 (1978). Part of my disagreement with the majority stems from its finding a high degree of precision in the separation agreement’s provisions as to visitation; those provisions strike me as unclear.1 Consistent with its finding of precision in the agreement, the majority unwarrantedly applies strict contract law principles, subordinating the concept that “it is without question now that in any child custody case the controlling consideration is the best interest and welfare of the child.” Utley v. Utley, D.C.App., 364 A.2d 1167, 1170 (1976), and cases there cited.
The majority concludes that the trial court “violated” Domestic Relations Rule 52(a), which provides in part:
In all actions tried upon the facts the court shall make written findings of fact, separate conclusions of law and judgment. . .
One other provision of Rule 52(a) is not referred to by the majority but is, in my view, relevant. The rule also states:
If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. * * *
Assuredly perfection is not an achievable goal in written orders of the trial court, any more than it is for those of us who function at the appellate level. It is true that the trial judge did not state definitively whether his disposition was predicated upon ambiguity in the separation agreement or upon changed circumstances (or, as is likely, on both). However, I have no trouble concluding that his carefully written findings and conclusions collectively pass muster. Assuming arguendo that they do not, however, the appropriate remedy is a remand for further consideration of the case, rather than a blanket rejection of the record bases for the action taken. See, e. g., Moore v. *1388Moore, supra, at 770; O’Meara v. O’Meara, D.C.App., 355 A.2d 561, 563 (1976).
I could understand the majority’s disagreeing with the trial court’s resolution of the visitation controversy. However, it is not our function to reverse based upon mere disagreement; “we have no right to substitute our judgment for that of the trial court.” In re Lem, D.C.Mun.App., 164 A.2d 345, 350 (1960). Both parents are employed and are financially able to care for the children. Each parent lives near the other and near the children’s schools. Both parents love and desire the company of their children. The children informed the court that they love both of their parents and did not wish to have to choose between their parents.2 Since neither child is “of tender years” and the distance between the two homes is minimal, the arrangement decided upon by the trial court not only seems to me to be well within the exercise of its discretion, but moreover obviously would result in a higher degree of stability and certainty in the lives of the children than they previously have been able to enjoy. Cf. Utley v. Utley, supra (divided custody not favored where three-year-old child was to be transported 1,800 miles every third month). I find no “clear abuse of discretion” by the trial court, and accordingly respectfully dissent.3
. For example, while the father has custody of both children, paragraph 3 of the agreement specifies that “the principal place of abode of [the daughter] shall be considered to be with the Wife.”
. Each child wrote a sensitive, thoughtful letter to the trial court, asking not to be forced to testify or be consulted as to the custody dispute. The son, however, noted in his letter: “I just want to see my mother and my father on an equal basis.”
. When the father appealed, he sought a stay of the trial court’s ruling. A stay was granted, by chance by the two judges who comprise the present majority.