March 2009 Archives
The recent California appellate court case of Marriage of DELLARIA and BLICKMAN [D&B] raised some interesting issues and teaches some important lessons about spouses entering into agreements when they get divorced, when they don't follow strict legal procedures. I question the reasoning in the case, but it has a certain correctness about it that is hard to ignore.
The parties married in 1989, filed for divorce in 2000, and actually separated in 2001. The trial judge heard their testimony, and found that they had reached an oral agreement dividing their major assets in 2003, and to carry out that agreement they transferred title to properties between themselves, and Wife borrowed $220,000 and used it to pay an equalization payment to Husband.
In the division, she got the family home and two brokerage accounts - he got a two pieces of real estate. He kept two vehicles and she got one. Each was to keep his or her own retirement. They exchanged title documents to carry out their agreement.
Pretty sweet deal for Husband, according to the court - he received more than one-half the value of the assets. The wrinkle was that the issue didn't come to court until 2007, and Husband no longer liked the deal. Maybe his two pieces of property had gone down in value, while Wife's stocks were doing pretty well? The opinion is silent on this point that most of us would find pretty significant.
The impediment to such agreements is usually the lack of documentation, but here there was plenty - the trial judge didn't find the husband's explanation for the transactions believable. "There is no rational explanation for this other than that the parties were dividing their major community assets." Husband appealed, claiming that only a written agreement could divide their assets based on California Family Code section 2550.
The court of appeal agreed with him, concluding that once the parties had filed for divorce they could not orally resolve their dispute, except on the record in open court - otherwise, their agreement had to be in writing. The lesson to take from this? No matter how fair you are in settling your dispute, you better get it in writing because circumstances change.
In California, disclosure documents listing assets and estimating values are required before the court can approve an agreement - doing it in writing is another layer of protection, at least theoretically. In D&B, the person "protected" was the one who benefitted from the original agreement - obviously, his circumstances changed.
A competent lawyer will ensure you don't resolve these matters except in a way that you are protected.
Somehow, I stumbled across this article about people fighting over custody of their dogs in divorce cases. Written in 2006, it discusses appellate court decisions from across the country on the subject, and the author's opinion of changing standards. I know of no reported California cases on the subject.
Historically, dogs were personal property. As I recall, there used to be California cases saying that cats weren't property, because no one could actually own a cat, but for this purpose I'm not going to research the subject since it's not intended as a treatise on the law. [As i recall, these cat cases dealt with issues such as whether a neighbor could steal your cat or dog, or be responsible for injuring one.]
When lawyers in North County [San Diego], where I practice, talk about old time practitioners, they often tell about a major trial over ownership of a parrot some decades ago. It involved two very litigious attorneys who have since probably joined the bird in the hereafter. [One billed himself as "The Prince of Darkness."]
We all laugh at the absurdity of people spending 10's of thousands of dollars over custody of a pet - now, I appreciate their attachments to an animal, but essentially they are gambling that the judge will see it their way. It's one thing to fight over a child and how many hours of time share might swing one way or the other depending on how the judge sees things, but with rare exception the dog is going to one or the other [please don't get me started on judges who try to set visitation rights for pets].
In a website that attacks judges and lawyers in San Diego [that will go unnamed], there are tales about courtroom fights in our county over dogs and cats, including a lengthy trial over Fifi - one-half of the 3-day trial was allegedly devoted to the animal. Now I understand an attachment to pets, but the Wife's fees ran about $150,000. The website and that article is critical of lawyers charging outrageous fees over such issues. I won't list the website, as it's largely run by a disgruntled litigant, who is occasionally right, but often wrong - he [or she] is anonymous, from Beverly Hills.
That site portrays the fights as a way for lawyers to gain fees at the expense of their clients - now that happens a lot. But, the clients allow it to happen by making the issue over which they are fighting more important than their financial and emotional futures. In our parrot case, the lawyers were just argumentative and overly competitive - this was in the day before divorce cases often ran to days or weeks, so the arguments and testimony took only a few hours. Our lawyers weren't fighting to gain a few bucks, but over principle and their client's desires - the cost wasn't a major factor in those days, but winning was. I wish I could say the same today.
Over the decades I have practiced, I have seen many people fight to the death over absurd issues, spending endless dollars on issues they can't win or as to which there is going to be no winner.
Fighting over a child has a certain biological imperative about it - you can't go to a kid show and pick up another kid bred for the same look and temperament. But you can probably find a dog that gives you as much love and affection as the one you give away in the divorce - especially if you have $150,000 to spend since you aren't buying your lawyer a new Corvette or a few dozen St. John suits.
Friday, some friends brought home a playful, loving chocolate Labradoodle puppy to replace the Golden Retriever they had lost a few months ago to illness. It is amazing how, in one day, the new member of the family has taken over as the focus of their lives. And, they have $149,000 left to spend on something worthwhile. It's not Fifi, but they don't seem to notice as they never knew Fifi.
Sometimes cases just need to be decided on the flip of a coin, and the parties move on.
We fail to see how father reasonably thought that mother's impending remarriage should relieve him of his responsibility for supporting his own children, or how his desire to obtain the china and silverware had anything to do with the custody issue at hand. Accordingly, the court's determination that the settlement offer was overreaching and therefore violated the policy in favor of settlement is supported by ample evidence.
In the end, the matter was sent back to the trial judge to review the original decision in light of the court's opinion, but its dissatisfaction with the husband was clear.
I'm about to head our for my 4th settlement conference this week [yes, I'm tired]. That means I had to have 4 settlement briefs out the door last week. Most Family Law cases settle in San Diego, because we strongly bias the process in favor of resolving differences. And, as I've written below, no one ever knows who is right.
However, here's a mess that is destined to remain in the papers for a long time, reported in the San Diego Union. It's about a San Diego Padres' outfielder. Now, if your life looks like this, you need more than a divorce lawyer - I'm not laying any blame, but how do you get yourself in these situations over and over again if you're paying attention? There are many people who make false domestic violence allegations, but usually there isn't security camera footage or independent witnesses watching - I'm just saying....
As a psychologist friend of mine once told me:
I got a call from a patient - he told me his first divorce had cost him $250K, his second cost $500K, and if he didn't get out of his current marriage quickly it was going to cost him at least $1,000,000 [this was about 20 years ago when that was real money]. I told him it would be cheaper for him to fix his problems than to divide up his assets over and over again every few years.
I never asked if the patient  took the advice, or  benefitted from it; the odds are that the answer to one of the questions is "NO!". Some people just can't learn from their own life experience, let alone the experiences of others. Either the guy in the story has a problem, or the women in his life have a problem - probably both, but not equally offensive.