dissenting.
The primary question in this case is whether the interpretation of “joint custody of the minor child with [Amy] having primary custody” is a question of fact or a question of law. In this case, I believe the trial court properly viewed the issue as a question of fact. As I cannot say that was clearly erroneous, I would affirm.
The majority adequately sets out the facts of the case. The relevant part of the divorce decree states that “the parties shall have joint custody of the minor child with [Amy] having primary custody.” The property settlement states that “the parties shall have joint legal custody of the parties minor child.... with [Amy] being the primary physical custodian.” The majority holds that the trial court erred in finding that the relocation by Amy was a material change in circumstances and by failing to apply the presumption that relocation by Amy is in C.S.’s best interest. They acknowledge that the parties have joint legal custody, but Amy would be the primary physical custodian. The majority implies that the physical-custody language trumps the legal-custody language without explaining why that is so. By 17doing this, the majority makes the interpretation a question of law rather than a question of fact. Under the majority’s analysis, “joint legal custody” is surplusage.
It is basic contract law that we are required to read contracts by giving words their ordinary meaning. See Lee v. Bolan, 2010 Ark. App. 209, 374 S.W.3d 718 (2010). Joint legal custody must have some meaning. The majority also relies on Joseph’s testimony that he knew that Amy would make the final decisions regarding the child. That conclusion is not in the decree or settlement agreement. Further, if the interpretation of joint legal custody is a question of law, or has no meaning, then Joseph’s opinion of who has control has no bearing on the outcome of the case. Absent the words “joint legal custody” the majority’s analysis would be correct.
I also disagree with the dissent’s analysis. The holding does not remove custody decision making from the circuit court. The dissent states that Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002), is disregarded by the majority. Although the cases are similar factually, it was decided prior to Hollandsworth and must be reviewed in that light. Further, in Lewel-lyn there was no discussion about joint custody versus physical custody. Hol-landsworth requires that analysis. In Lewellyn, the trial court addressed the custody under a change-in-circumstances analysis followed by a best-interest analysis. Our supreme court approved this approach. Lewellyn cannot be directly on point after Hollandsworth but can be followed in a custody analysis.
The dissent next cites Chastain v. Chastain, 2012 Ark.App. 73, 388 S.W.3d 495 (2012), for the proposition that whether the parties had joint custody is a question of fact. |SI do not think Chastain is that clear. In Chastain our court stated:
Both parties agreed at the hearing that the primary issue to be decided by the trial court was whether the parties had true joint physical custody under the terms of the settlement agreement or whether the appellee had primary physical custody.
Id., 2012 Ark. App. 73 at 5-6, 388 S.W.3d 495 at 499.
Our court discussed the factors relied on by the trial court in affirming the decision. This supports the proposition that the issue was a question of fact; however, we did not stop there. In discussing Hol-landsworth, we said:
The meaning of the language in the parties’ settlement agreement stating that they would share “joint and equal” custody, but the appellee would be the “primary residential parent” was an important issue to be determined by the court.
Chastain, 2012 Ark. App. 73 at 7, 388 S.W.3d 495 at 500.
Before we can reach the fact question in the instant case, under basic contract law, the court must construe the contract, as a matter of law. Poff v. Peedin, 2010 Ark. App. 365, at 3-, 374 S.W.3d, 879, 881. This case requires a basic interpretation of the clause, “the parties shall have joint custody of the minor child with [Amy] having primary custody.” The court must construe that clause. See Lee v. Bolán, supra. The terms “joint custody” joined with “primary physical custody” logically cannot be reconciled, so the clause is ambiguous. Therefore the court can look to the intent of the parties to construe the contract. In this case, the interpretation of the decree creates a question of fact. The trial court considered all the evidence and found that the parties shared equally the custody of the child. I cannot say that this finding was clearly erroneous. Based upon this finding the Hollandsworth presumption would not apply and the best interest analysis of Lewellyn would. Therefore, I would affirm the trial court.