September 2010 Archives

September 29, 2010

California Divorce -- Got Mediation?

Justia-photo-65 mediation.gifAn AP story written by reporter Greg Risling stated that the McCourt trial will head immediately into mediation after this week of testimony. The legal issue of this trial is the characterization of the LA Dodgers. In other words are the Dodgers the separate property of Frank McCourt or the community property of both Frank and Jamie McCourt.

As a San Diego Certified Family Law Specialist I am trained in divorce litigation (including trials) as well as divorce resolution (including mediation and arbitration). In a trial, the finder of fact is the judge (California divorce does not permit jury trials), and the judge will then apply California family law to the facts resulting in a decision. At the end of this trial the judge will rule that the LA Dodgers are either owned jointly by Frank and Jamie or solely by Frank McCourt. Mediation cannot force a conclusion to a case as resolution in court; however, mediation should be a tool in every lawyer's toolbox.

Mediation hearings are usually less formal than trials. In a trial, one side of the issue will prevail; however in mediation, compromise is encouraged so that both sides secure something. Trials can be tremendously expensive as the attorneys pore out their skills in their legal research, procedural maneuvers, evidentiary objections and courtroom training into the trial. Mediation is typically not as expensive as witnesses are usually not called and the primary skill involves negotiation techniques.

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September 27, 2010

San Diego Divorce Report of Contract Catastrophe

Justia-photo-63 gibberish.jpgA San Diego news article described how the McCourt pre marital contract is more convoluted than ever. The ongoing bifurcated trial (a trial on an issue separated out from the rest of the divorce case) as to the ownership of the LA Dodgers, resulted in the attorney who drafted the contract testifying that he changed the contract after the parties signed the contract. The LA Times also published an article authored by Bill Shaikin and Carla Hall on this topic that was helpful to this blog.

One of your first days in law school, learning about California contractual law, you learn that a "Contract" indicates a "meeting of the minds" resulting in an agreement between two (or more) parties. The contract may be verbal or written. Written is preferred so that the terms of the agreement are specified and ambiguities are eliminated. Many years after law school I am a Jolla divorce attorney who prepares and reads marital contracts on a regular basis.

In a California divorce, property must be identified, characterized, valued and disposed by division between the parties or by a sale to a third person. In the California divorce case of Jamie and Frank McCourt (owners of the LA Dodgers baseball team, six written contracts have been presented to the court to dispose of the ownership of the baseball team. These contracts, all written, signed and notarized, are post marital agreements (also known as "ante nuptial" or "post nuptial") The purpose of a post marital agreement is to make the court rulings as to property (and other issues) very quick and simple, not to mention low cost. However, the problem here is that three contracts provide that the team is Frank's separate property and three contracts provide that the team is community property. How could this have happened?

In an earlier blog on this topic (here) I wrote that the trial was not going well for Frank. This is just my opinion as a California Certified Family Law Specialist. This was after just the first day of the trial. My opinion is now stronger. There are two contracts, signed by both parties. One supports the conclusion that the team is community property. The one that makes the property Frank's separate property was changed by the drafting attorney, after the contract was signed (approved) without notice to either party that the change would be made. No "meeting of the minds" = no contract. I don't see how this will go well for Frank.

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September 17, 2010

San Diego Divorce News--Domestic Violence Trial and Conviction

Justia-photo-62 butcher knife.jpgThis blog has posted two articles about the Trial of Shelley Malil, Los Angeles actor who dated and was arrested for stabbing Kendra Beebe in 2008 when he came to her home uninvited and found her conversing with another man. On September 16, 2010, the jury reached a Guilty verdict for premeditated attempted murder as reported by Dana Littlefield of the San Diego Union Tribune. La Jolla divorce attorneys are not shocked as domestic violence can occur in relationships all over town and all sections of society.

The first blog (found here) discussed how Malil's defense attorney tried to use a "lie" from the victim, Beebe, which occurred in her divorce, child custody, case, against her in the criminal case. The blog discussed the significance of truthful testimony in San Diego divorce cases and how a lie, when discovered, can be used against a person in the divorce case and in other proceedings. This blog was significant as it displayed how Kendra Beebe could have been stabbed with a butcher knife over 20 times and the perpetrator of this domestic violence gave the jury a reason to return with a "not guilty" verdict simply based on the fact that the victim had previously lied in another court about an unrelated matter. San Diego Certified Family Law Specialist attorneys are familiar with the significance of lies in family law cases.

The second blog (found here) reported defendant Malil's testimony and commented on how difficult it was to believe his testimony. Should he not have taken the stand to testify? Did he think his acting experience would assist his presentation in front of the jury? When he took the stand he told a seemingly convoluted story which directly confronted and appeared to contradict the foundational facts of the criminal trial. The victim, Beebe, called the testimony "bizarre fiction" after the jury verdict. Apparently, the jury, after hearing Malil call Beebe a liar, did not believe Malil's testimony.

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September 13, 2010

San Diego Domestic Violence Felony Trial--Who's Lying Now?

Justia-photo-61 knife attack .jpgThis blog reported previously on the ongoing criminal trial in Vista California. Actor Shelley Malil is the defendant charged with attempted murder and other felony charges for the knife stabbing of Kendra Beebe. The prior blog dealt with the fact that the defense attorney caused victim Beebe to admit that she had previously lied in court in her family law case. This was done in an attempt to cause the jury to have less regard for the victim and to allow the defense to argue, in closing, that the victim's testimony in the criminal trial may not have been truthful. As a La Jolla divorce attorney, this blog posts articles on actors and family law issues; however this case is different.

However, last Thursday, actor Shelley Malil, the defendant, took the stand and testified according to a Fox News article published on 9/10/10. Defendant Malil has pleaded Not Guilty to the attempted murder, assault with a deadly weapon and other charges. He testified that he never intended to hurt Beebe. He was shown pictures of the knife wounds that Beebe suffered and testified that he had "no idea" that the knife he was holding caused those injuries. Really? He testified that he came to Beebe's home the night of the attack and found her drinking wine with another male. Why did he come to the home with a knife? Why did he not leave when he saw Beebe with someone else? Did he just drop in? Uninvited? With a knife? What was his intent? (The prosecutor claims Kalil used two knives.) Beebe was stabbed over 20 times, suffered a punctured lung but survived the attack.

Family law domestic violence cases often result in criminal prosecutions. Divorce court Domestic Violence Restraining Orders are treated seriously and can result in the loss of child custody rights, an order for attorney's fees, a higher spousal support order and other consequences. Criminal defendants have a right to remain silent. The prosecution must prove the case beyond a reasonable doubt. Defendant Kalil may have decided that the prosecution is proving its case and that he has no choice but to testify.

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September 10, 2010

California Divorce Update: Mel Gibson

News reports continue regarding the Mel Gibson case and two of them are described in this blog. As you may know, Mel Gibson, affluent Hollywood actor commenced a relationship with Oksana Justia-photo-60 Mel Gibson.jpg, Russian pianist. A child reportedly of this relationship was born on October 30, 2009. During the summer of 2010, Oksana obtained a restraining order against Mel Gibson wherein she claimed domestic violence. A number of voice tapes found their way into the media. Recently there was a report that the tapes were altered in some way. Law enforcement has yet to decide whether or not to prosecute Mel Gibson; and last, but not least, Oksana filed for and received a temporary child support order. Reportedly, Mel Gibson pays Oksana $5000 per month plus he pays the expenses (in an amount unknown) for a home in Los Angeles where Oksana and the child lives.

This blog has previously reported on the Mel Gibson-Oksana Grigorieva case. Particularly as to the Domestic Violence Restraining Order and the tape recording evidence that is being used in Oksana's case and which may itself constitute a legal violation.

As a San Diego Certified Family Law Specialist attorney who has handled many cases of this nature, I can see that the parties are actually moving toward expanded litigation in court at this time. Occasionally, behind the scenes negotiations are moving forward in an effort to settle the case; however here, all of the reports lead this blog to conclude that settlement is not necessary. Consider the following reasons:

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September 6, 2010

San Diego Divorce Court "Lie" Used in Criminal Court

Justia-photo-59 Malil.jpegDana Littlefield is a news reporter for the San Diego Union Tribune and recently wrote a news article that has issues spilling over into divorce, child custody, domestic violence, attempted murder and lying. It is far more convoluted than it should be, but that is probably due to the background of this case, both in the area of criminal law and the divorce court case involving the victim. Just when you thought that the Real Housewives of Orange County was over the top, real life stories such as this are reported. As a San Diego child custody attorney this story caught my attention. Let's break it down:

First, Shelley Malil, (see photo) age 45, is an actor. He had a minor role in the movie The 40 Year Old Virgin. Second, Kendra Beebe, attractive, age 38, previously involved in a messy divorce case in San Diego County. Third, they met online. Forth, they started dating. Fifth, according to reports (possibly a criminal defense version of the facts), Beebe was seeing another man in August 2008 when Malil reportedly showed up at her home in Vista, California, with two knives. (Why two?) Sixth, Malil reportedly stabbed Beebe over 20 times puncturing Beebe's lung and causing other injuries. Seventh, Malil is now on trial for the attempted murder of Beebe. And finally, eighth, Malil's defense attorney cross examined Beebe, at Malil's felony trial, about the time that she lied in her child custody divorce case.

During a San Diego divorce case, Beebe was asked, under oath if she had removed the children from San Diego County. (It is typical to order that a parent will be notified when you take the children out of the County.) Beebe answered "no" under oath and that was a lie. She admitted to the lie in the Malil felony trial.

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September 2, 2010

California Post Marital Agreement--Or Not?

Justia-photo-58 Frank McCourt.jpgThis blog has posted several articles on the Jamie and Frank McCourt divorce and specifically the legal issue as to the validity of a post marital agreement signed by Mr. and Mrs. McCourt by which Frank McCourt claims sole ownership to the LA Dodgers baseball team. The trial is ongoing at this time as to this issue in a California divorce court. A LA Times article describes the second day in trial. To the surprise of many, Jamie McCourt had a great second day in this trial.
Meaning of post nuptial agreement: A "premarital" or "prenuptial" or "ante nuptial" agreement all mean the same thing--an agreement before the marriage. A "post marital" or "post nuptial" agreement is an agreement finalized after the marriage. These agreements are permitted under California law; however California limits what they can do. They can change the ownership of property; change property characterization; for example, community property to separate property or separate property to community property. They can provide for the amount and duration of spousal support. They cannot dictate child support or child custody. San Diego Certified Family Law Specialist attorneys frequently create and review premarital and post marital agreements.

The post marital agreement in the McCourt case transferred all ownership of the LA Dodgers to Frank and transferred the real estate to Jamie. Or did it? Frank has entered into evidence a signed post marital agreement that transfers the team to him. However, Jamie has now entered a signed agreement into evidence showing that Frank transferred all of the homes to Jamie and it does not mention the Dodgers. So, we have two signed agreements. Further, bank and loan documents indicate that the parties were acting co-owners to the team. Further, loan documents, signed by the parties showed that a loan was made to both of them as co-owners. Under California law, a loan creates funding and the money is either community property or separate property in character depending on how the loan was arranged.

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