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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