Thursday, October 7, 2010

Calling an audible; more legalese about the conflicting Exhibits.

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I'm working on a piece concerning how the divorce will affect the Dodgers during this offseason and beyond, but it's not quite ready to go. In the mean time, let's dig a little deeper into Jamie's arguments against the post-nup. Last time, you'll recall, we looked at the alleged lack of express disclosures in the MPA as to the intent of the parties to transmute property. I think a ruling in Jamie's favor based on that statutory requirement would be legally defensible but generally flat.

Jamie's attack on the MPA begins, and has the greatest likelihood of success, under the additional requirements of California Family Code § 852(a), which contemplates marital property agreements. The § 852(a) rules are stricter than basic California common law as it relates to evidence of the parties' intent found outside the contract itself. This isn't entirely unusual; the general rules apply to situations without specific statutory treatment. Where a contract is governed by stricter rules specially enacted for that type of contract, the stricter provisions control.


Still, in addition to the arguments Jamie's lawyers make under § 852(a), there might yet be common law reasons this contract would be unenforceable due to the presence of the materially conflicting Exhibit A's. Jamie cites three cases with facts she says are similar to the facts in play here: "where parties executed different and inconsistent 'originals' of what was purported to be the same instrument." Her lawyers go on to note that none of these cases was decided in favor of the party asserting to enforce the contract.


Here are the basic facts of the three cited cases. Keep in mind that each was resolved in a way favoring Jamie's argument here.



  • Thayer v. Harbican, 70 Wash. 278 (1912).
    • Like McCourt v. McCourt, the parties in this case signed multiple copies of a contract. In Thayer, the difference between the two was that one contained a handwritten modification to a material term the other did not. Unlike our case, though, "neither party testified to what was said in arriving at an agreement, so that we (the Court) have nothing further than the writings themselves to show what was the real intention or agreement of the parties." Recall that one of Jamie's main arguments is that, even though we do have more information about the parties' intent, it is not admissible under § 852(a).
  • Vickery v. Ritchie, 202 Mass. 247 (1909).
    • This dispute was between a contractor and a landowner. Each party had signed a contract for the construction of a building, but the cost of erecting the building was different on the copies signed by the parties. The culprit was an architect who fraudulently changed out the price sheet so he could get paid more. The parties didn't discover the problem until the building was near completion, and they had both relied in good faith on the architect's statements. This would be a bit more appropriate to the McCourt dispute if Silverstein somehow figured to benefit by enforcement of a fraudulent contract.
  • Andrade v. Hanley, 289 Mass. 335 (1935).
    • In Andrade, contracts signed for the sale of real estate differed in the duties of the seller. "In the absence, as here," the Court wrote, "of explanation by extrinsic evidence of the difference between them, the plaintiff's proof of a contract binding on the defendants fails." This decision, which cites Vickery, was more similar to Thayer: without extrinsic evidence of the parties' intent or explaining the mix-up in documents, the court had no choice but to disregard the contract. As with the application of Thayer to our case, the issue is § 852(a)'s exclusion of evidence outside the contract itself as to the parties' intention.
None of these cases presents, in my mind, a bulletproof common law argument for why Jamie should win. If the plan is to decide McCourt under common law, evidence of the parties' intent would likely be admissible. The cases, though--particularly Thayer and Andrade--are quite useful to Jamie in one context: if extrinsic evidence is disallowed under § 852(a), Jamie's lawyers urge Judge Gordon to use nothing beyond the MPA's themselves to decide the issue.

If Jamie wins this thing, it will be because she successfully convinces the court to take into evidence very little but the language of the signed, notarized MPA's themselves. Further, Judge Gordon would also need to get past the language in the body of the MPA denoting the importance of title; what's titled in Frank's name is Frank's, what's titled in Jamie's, Jamie's. Her lawyers contend that that language alone can't be the basis for a Frank win, not with the conflicting Exhibit A's out there. His lawyers say it is impossible to look at the creation, execution, and ratification of the MPA's and believe the parties were ever truly in conflict.

There are probably a dozen facets to the dispute just like this one, and I'll do my best to get to them in the coming weeks.
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7 comments:

  1. NotMuchOfAnAttorneyOctober 8, 2010 at 9:40 AM

    Josh, while I like your blog and your efforts I find that your case law is all "contract" law case examples. This is a "family" law divorce case and I am not sure if the prior cases you cite are relevant in this different venue. family law courts rely on the dubious 'fairness' principal so I still think that the judge will throw out all versions of the conflicting MPA's and fall back on a state law community property finding.

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  2. Hi Josh,

    What do you make of the fact that Frank just fired the President of the Dodgers and is going to assume the responsibilities of managing the Dodgers himself?

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  3. Josh,

    You raised some quirky but interesting points, however you seemed not to put your points into context, or miss the meaning over some crucial facts of pre and post nuptial agreements.

    Your statement:

    "Further, Judge Gordon would also need to get past the language in the body of the MPA denoting the importance of title; what's titled in Frank's name is Frank's, what's titled in Jamie's."

    My answer to that is "So?!?!?" they have assets and the assets in the name of one spouse. Listing the titles in a MPA is more as a recorded fact of what assets are involved than as some sort of transmutation agreement.

    What is important and how the courts look at the titles, they were acquired during the course of the marriage. Both partners are entitled to 50 percent of the value. Once again you are getting stuck on definition, when procedure of asset division is just as important in this case.

    Judge Gordon has to contemplate many things, and he may do the opposite of what I think he may do However, I don't see listing property and who owns the titles as the same as a spouse claiming the title as separate property, and the other spouse waiving that right

    I think you are getting stuck on some details of the MPA, without realizing that the MPA as a whole is flawed for couple married for 29 years to divide asset amicably, and supersede California Family Law.

    Listing Titles is not the same as a comprehensive separate property agreement.

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  4. Okojo raises a good point.

    While there has been endless discussion of the MPA, so far in my reading it has not been made clear whether the MPA includes a waiver of support by Jamie.

    If the MPA is upheld (a dubious proposition apparently at this point), did Jamie waive support. If not, it would seem that Frank's victory on the MPA would be a phyric victory in that the cost of supporting Jamie and all those mortgages on "her" real property would be quite a load.

    Josh -- Would you simply report what the MPA provides as far as support? Thanks.

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  5. I come here daily for news.... nothing for days. Weird as it sounds, I miss my Dodger Divorce fix.

    It would appear we are stalled. Any chance that there is a decision before the winter meetings?

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  6. Ok, whether it's Frank or more hopefully Dennis G, or Eli B or any # of qualified others, we need a few things: Peter O'Malley must be brought on board, The McCourts need to be sued for breach of public trust (???) & the resources must be put in place immediately!!! We need Carl Crawford in Left, Re-sign Lilly & Padilla, Sign Adam Dunn (which would mean a trade of James Loney who I like) and strengthen the bullpen. Money can & should be spent wisely & with Colletti, L.White, Kim Ng, & maybe Joe Torre there is no reason the Dodgers can't be championship caliber in 2011.

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  7. Or...can we have the McCourts arrested & jailed for breech of public trust & the Doodgers siezed & sold?

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