The meaning of the conflicting Exhibit A's.

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Twice in the last week or so, I tried to articulate where the difference between what really happened and what can be proved manifests itself in the issue currently under Judge Gordon's advisement. More than anything else, the existence of two different signed, notarized versions of the MPA has some fans and observers calling this a relatively simple case. A commenter to the last post notes:

Bottom line -- Whatever the "truth" as Frank or Josh know it, if there has been no apparent meeting of the minds and the writing signed by the parties does not reflect the clear understanding of the parties, show me a judge who is going to uphold the questioned writing.

I really understand the logic behind this argument. If you have people signing documents that provide for completely opposite treatment of Asset X, it's awfully hard to say the parties agreed on what to do with Asset X. In this context, the versions do something completely different with the most important asset in the marriage: the Los Angeles Dodgers.

For the sake of this discussion, I'm only talking about the fact of the existence of materially conflicting versions of the MPA.

Summed up, Jamie's argument goes like this: the different Exhibit A's present an "irresolvable conflict" between the Massachusetts and California versions of the MPA. Because of this discrepancy, it cannot be legally determined which property was meant to be made Frank's own, and the MPA is therefore a legally ineffective document. While outside evidence of the parties' intent is often admissible, California Family Code § 852(a) imposes special rules for interpreting transmutation agreements.*

*Frank contends that the MPA should not be regarded as a "transmutation"--and thus not subject to the special rules of § 852(a)--but that's a conversation for a different day. We'll assume, for now, the MPA is indeed a transmutation, and therefore needs to conform to the strict rules of § 852(a).

First and foremost, California law requires that, for a transmutation to be effective, it must contain an "express declaration" that the spouse giving away rights to property intended to do so. Jamie's lawyers say the conflicting Exhibit A's are conclusive evidence that the MPA fails to offer such a declaration. Where § 852(a) is really tough on Frank is that it specifically forbids the introduction of extrinsic evidence to prove an express declaration or an intent to separate property. So all the witnesses who said Jamie always wanted the MPA this way? Who cares. Jamie's attorneys say that it is simply impossible to tell from the signed agreements what the parties meant to do, and signed agreements govern under California law.

Their argument is inherently logical: if the law requires a clear and unambiguous expression of intent to transfer an interest in property, and the documents have completely opposite expressions of what the parties intend, and outside evidence of intent isn't allowed, what is left to argue about? California law governing interpretation of transmutation agreements requires clarity in writing and forbids oral evidence for policy reasons, and application of that law sure seems favorable to Jamie.

And maybe that's all Judge Gordon needs; maybe it even forces his hand. But I think that a decision in Jamie's favor based on § 852(a)'s requirement of an express declaration of intent would be, while defensible, a bit hollow. The California legislature expressed, through § 852(a), that the old system of not requiring an express declaration "encourage[d] a spouse, after the marriage ha[d] ended, to transform a passing comment into an ‘agreement’ or even to commit perjury by manufacturing an oral or implied transmutation." I don't believe that the legislative intent driving the creation of what became § 852(a) was meant to cover this sort of fact pattern.

The parties did expressly declare their intent in the only version of the MPA they ever believed to be signing, and did so in the only version they ever knew about until this year.  I don't think Jamie winning would be any great injustice--there are several problems with the MPA I would accept as fair and fatal. The mere existence of two different Exhibit A's is not one of them.

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