“Oh my God, that’s him!” So Angela Colicheski exclaimed as the young subject of her custody battle with Sarita Lytell was brought into court. Both women knew that only one of them would be leaving the court in Florida with the youngster each had, at different times, nurtured and doted on. The judge looked on gravely as he realised that in deciding which desperate woman should win custody, he would have to exercise the wisdom of Solomon.
The custody clash was similar to many other previous cases except for the fact that it was about a 13-year old African Grey parrot.
For ten years, Colicheski had loved and cared for the parrot she called Tequila. Then, three years ago, he flew away over her garden fence. Colicheski ran frantically all over the district but could not find him. She was distraught and heart-broken. Three long years passed. Then one day Colicheski was sitting in a local Dunkin Donuts chatting to Lytell, whom she had just met, when they started to talk about parrots. Lytell said she had one called Lucky that she had found three years earlier. It quickly became clear that he was the one Colicheski had lost. Lytell refused to hand him over, having formed a bonded relationship with the bird.
The judge heard a lawyer for Lytell argue that as she had cared for the bird for three years it had become hers. Colicheski’s lawyer, however, argued that the parrot was a chattel (a piece of legal property) and must be returned. The judge agreed, saying that the parrot was treated, under state law, as personal property. “If the plaintiff had lost her automobile somehow along the way,” he asked rhetorically, “would it be any less her property when she found it?” He ruled that Tequila was the property of Colicheski as she was his original owner and carer for ten years.
Tequila did not give sworn testimony but he did give squawk testimony. As soon as he was brought into court and saw his previous owner he emitted what witnesses said was a loud call of recognition.
This is not the first such dispute. In 2006 in Argentina, in litigation between Jorge Machado and Rio Vega, the court ruled that a parrot called Pepo, which each man claimed was his, should be imprisoned until it uttered the name of its owner. Five days later it squawked “Jorge” and sang the anthem of his favourite football team, San Lorenzo. The evidence of another parrot caused problems in Leeds in 2006. Chris Taylor discovered his partner Suzy was having an affair when his parrot, kept saying, in a perfect mimic of her voice, “I love you Gary”.
In the divorce between Mel
Gibson and Robyn, his wife of twenty eight years, much has been made of the
fact that they allegedly had no prenuptial agreement. This means that Robyn
could be entitled to up to fifty percent of any marital assets acquired during
the marriage. A lesser reported fact is the discrepancy between the alleged dates
of separation in the legal papers.
Reports state that Robyn filed
a Petition for Dissolution giving the date of separation as “to be determined.”
In Mel’s Response he is reported to have alleged that August 26, 2006 was the
date when they separated - about a month after his infamous DUI arrest.
A big deal? Maybe. The date of
separation could mean big dollars.
This is because in any fight
over the division of marital assets, a spouse is only entitled to a share of pre-date
of separation earnings and assets. In the Gibson’s case, it is anybody’s guess
how much money he made after 2006.
if there is a legal fight, how is a California court going to decide upon the date of separation?
771 of the California Family Code refers to “living separate and apart.”This has been interpreted by the Appellate
Division as a two pronged test. First, at least one of the parties must have a
subjective intent to end the marriage. This means that the Court will look at
the party’s words and conduct to see if at least one of them intended to end
the marriage. Specifically, it will not give any weight to what the tabloids
print or the public thinks. For example, if it turns out that the Gibson’s had
a secret agreement to separate in 2006 after the DUI incident but they decided
to maintain a united front for the sake of the children, a court is not going
to give any weight to the public appearance of a marriage.
Second, there must be some objective
evidence of conduct furthering the intent to end the marriage. Words are not
enough. Telling your wife that you want a divorce, by itself, is not going to
do the job. The Court believes that actions speak louder than words: they are going
to look at all the circumstances to determine if one of the parties did
something to sever the marital relationship. One of those circumstances might be moving out
the family home, but that is not always a deciding factor. There are several
decided cases where moving out of the family home did not trigger a legal
separation because the spouses continued to maintain close personal ties.
In the Gibson case, even if they
remained living together in the same house after 2006, a Judge still has the
power to look at all the facts and circumstances and decide that they separated
earlier. The Judge is going to carefully consider their communications with
each other along other evidence that shows they intended to end the marriage –
e.g. whether they had intimate relations, attended social and business events
together, had family meals, sought the advice of lawyers, went to marriage
counseling, celebrated wedding anniversaries, maintained joint accounts, filed
taxes jointly and conducted business transactions together etc. etc.
If the Gibson’s do decide to contest
the date of separation, either one of them may ask the court to conduct a
“mini-trial” on the issue.
The leading cases in California
regarding separation and date of separation are Marriage of BARAGRY (1977) 73
Cal.App.3d 944, Marriage of Von Der NEULL (1994) 23 Cal.App.4th 730, Marriage
of HARDIN (1995) 37 Cal.App.4th 448, and Marriage of MANFER (2006) 114
One of Germany's richest women, Katrin Radmacher, is to use the British courts in an attempt to enforce a prenuptial agreement which would leave her ex-husband without a penny of her £100 million fortune.
Divorce lawyer Fiona Shackleton has been hired by Nicolas Granatino to oppose his ex-wife Katrin Radmacher
In a landmark case, Miss Radmacher, a paper industry heiress, will argue that Nicolas Granatino is bound by an agreement he signed before their marriage in 1998 in which both parties agreed not to make any claim on the other if they divorced.
If she is successful, it could result in prenuptial contracts becoming legally binding under English law for the first time.
Mr Granatino, 38, who gave up his job as an investment banker to become a £30,000 a year researcher at Oxford University, has already been awarded a £5.6 million lump sum following a High Court hearing last July.
On that occasion Mrs Justice Baron ruled that it would be "manifestly unfair" to hold Mr Granatino to the contract, which was signed in Germany before the couple married in London.
Miss Radmacher, 39, will take the case to the Court of Appeal next week, but her legal team will face a formidable barrier in the form of Fiona Shackleton and Nicholas Mostyn QC, the lawyers who represented Sir Paul McCartney in his divorce from Heather Mills and who have been hired by French-born Mr Granatino.
The couple met in Tramp, the members-only nightclub in Mayfair, when Mr Granatino was working as a £320,000 a year merchant banker for JP Morgan, and his wife was running a clothes shop in Knightsbridge with her sister. The couple went on to have two daughters now aged nine and six.
Problems began in 2003 when Mr Granatino decided on a change of career and took up a lowly-paid post as a biotechnology researcher at Oxford, and the couple divorced in 2006.
At the previous hearing, Mrs Justice Baron heard that the husband had "virtually no assets" whilst his ex-wife had £54m in liquid assets and another £52m in capital assets, giving her an annual income of £2m.
Although the judge recognised that the prenuptial agreement would have been fully enforceable in Germany or France, they have never been legally binding here, and she said that the arrival of the couple's children had "so changed the landscape" that it should be set aside, and awarded Mr Granatino £5,560,000.
She also noted that the husband had not received independent legal advice before signing the contract and his wife had not disclosed the full extent of her assets at the time.
Miss Radmacher, meanwhile, accused her husband of deliberately delaying his doctorate to "maximise his claim" and said that if he "wishes to be an academic he must live as such".
Miss Radmacher was granted leave to appeal after two judges ruled that she had an "arguable case" that her husband should only be entitled to maintenance payments to cover the cost of looking after the couple's daughters, who spend a third of their time with their father and the remainder with their mother in Düsseldorf.
The outcome of the case will be keenly anticipated by divorce lawyers in London, seen as the divorce capital of the world because of the number of wealthy foreign couples who choose to make their homes here.
English courts tend to protect the weaker financial party in divorce cases, and most experts expect Miss Radmacher to fail.
Julian Lipson, head of family law at Withers, said: "The Court of Appeal will need to weigh up the conundrum between respecting the autonomy of parties to agree a financial settlement at the outset of their marriage, and the need for state interference at the time of divorce to protect the financially weaker party and any children.
"It is a political hot potato for one European member state to be saying that it will not respect a legally binding contract entered into in another, but the English court tends to be paternalistic in protecting divorcing spouses from themselves."
Thank you to attorney Donald Conviser for this prediction that there may a battle over a date of separation battle in the Mel Gibson divorce. According to USMagazine - Mel's response states that the date of separation is August 26, 2006.
Don Conviser states: "I heard a rumor that there may be a "date of separation" battle coming in the Mel Gibson divorce. If so, Mel would contend that the date of separation was a date earlier than the date of actual physical separation of the parties and his wife would contend that the date of separation was later - either the date of physical separation, or even a later date. Post-separation earnings of a party comprise separate property of that party, whereas pre-separation earnings are community property. Acquisitions during marriage are presumed to be community property, but acquisitions traceable to separate property are separate property of the "separatizer"."
So why would Mel claim an early date of separation? I did an IMDB search and say that Apocolypto came out in 2006.
The leading cases in California regarding separation and date of separation are Marriage of BARAGRY (1977) 73 Cal.App.3d 944, Marriage of Von Der NEULL (1994) 23 Cal.App.4th 730, Marriage of HARDIN (1995) 37 Cal.App.4th 448, and Marriage of MANFER (2006) 114 Cal.App.4th 925. The critical inquiry is whether or not the parties' conduct (or the conduct of one party) evidences a complete and final break in the marital relationship.
Indian police have arrested a woman who is alleged to have tricked a number of men into marriage only to get a divorce and extort large sums of money.
The woman, from the city of Mumbai (Bombay), is said to have threatened each husband with lawsuits, alleging that she had been harassed for dowry.
The woman and her parents were arrested in the southern city of Bangalore.
The woman's lawyer has denied the charges, saying that her client had married just once, not nine times.
In a culture where women are often on the receiving end of marital harassment, this case is novel - a 26-year-old woman arrested on allegations she had tricked a number of rich businessmen into marriage, only to file for divorce after a few weeks and demand large sums of money.
Each time, she is alleged to have threatened the husband with a lawsuit unless she was paid off, on accusations that she had been harassed for a dowry.
One of the men lodged a complaint with the police, accusing the woman and her parents of threatening and harassing him.
His lawyer said the complainant was the woman's ninth husband and that she had demanded a large amount of money from him.
The woman has been remanded in police custody by a court in Mumbai until her case comes up for a hearing on Thursday.
In Re Marriage of Dellaria, Fioled March 17,2009, the Court of Appeal held that Family Code 2550 only permits the parties to agree on an unequal division of assets if it evidenced by a written agreement or by an oral stipulation in open court. The case illustrates the problems that can arise if the parties reach an agreement in good faith and dvide the assets in reliance on that agreement but fail to reduce it to a writing. In Dellaria The parties married in August 1989 and separated in December 2001. Husband and Wife began discussing the division of their property in 2002 and reached an oral agreement dividing their major community assets in 2003. Briefly, the jointly owned family home was transferred to Wife. The residence was refinanced and $217,562 in cash was given to Husband. In addition, two Wachovia brokerage accounts that were in Husband’s name alone were transferred to Wife. A second jointly owned real property was transferred to Husband. A third real property and the community’s business, were already in Husband’s name and were retained by him alone. Wife testified that under the oral agreement, each party was to retain his or her retirement plans. Husband was to keep two vehicles and she was to keep one. The trial court bifurcated the issues surrounding the agreement. The court found that Husband and Wife fully executed their oral agreement and that there were no issues remaining to be litigated over the valuation and disposition of their real estate, the Wachovia accounts, and Husband’s business. The trial court assigned values to and disposed of specific items of community property in accordance with the terms of the parties’ agreement. The trial court observed that this disposition resulted in an unequal division of community property that favored Husband. The Court of Appeal reversed.
An interesting case from the United Kingdom reported by the Daily Mail about a husband who argued that his divorce settlement should be reduced because shortly after his net worth was decimated by the crash. I wonder whether we will see any such claims this side of the pond.
Brian Myerson has lost millions in the credit crunch
"A City tycoon who claimed his £11.2million divorce payout should be renegotiated because he had been hit by the credit crunch was today told that he could not 're-write' the deal.
Brian Myerson, 50, had told the Court of Appeal that the global economic crisis had taken a heavy toll on his assets following his divorce from his wife Ingrid.
The Johannesburg-born investor and his sculptor wife divorced in March last year, and he was ordered to pay her 43 per cent of the total £25.8million assets of the marriage, including their luxury South African beach house.
But polo-playing Mr Myerson decided to take the bulk of his £14.6million cut in share in investment company Principle Capital Holdings.
As the credit crunch tightened its grip, the businessman saw the value of his shares plummet.
In a case that was watched eagerly by wealthy business folk facing similar woes, he told the court last month that if he complied with the order, he would be half a million pounds out of pocket.
Today, three appeal judges dismissed his challenge, saying the 'natural process of price fluctuation, however dramatic' did not satisfy the legal test for a change in a settlement.
They said that although the appeal had its 'dramatic features', its resolution was 'not difficult'.
Lord Justice Thorpe, in the written judgement, said: 'The husband, with all knowledge both public and private, agreed to an asset division which left him captain of the ship, certain to keep for himself whatever profits or gains his enterprise and experience would achieve in the years ahead.'
Ingrid Myerson leaves the High Court
In a rhetorical conclusion he added: 'When a businessman takes a speculative position in compromising his wife's claims, why should the court subsequently relieve him of the consequences of his speculation by re-writing the bargain at his behest.'
In a cautionary note for anyone considering following the executive chairman's actions he said many could be contemplating an attempt to reopen settlements after encountering 'financial eclipse', but he added: 'They would be well advised to heed the warning that very few successful applications have been reported.'
He did however offer some hope for My Myerson, pointing out that he still enjoyed control of his company and the 'opportunities that go with it'.
'The market place may take a pessimistic view of his future prospects. He may not share the market place view. Unusual opportunities are created for the most astute in a bear market,' said the judge.
Neither of the Myersons were in court to hear the judgement.
But a spokesman for the tycoon said: 'Mr Myerson is disappointed that the court failed to recognise that the economic downturn had rendered his divorce settlement unfair.
'The aim of Mr Myerson's appeal has always been to ensure that the division of assets with his ex-wife was equitable and he will now take his appeal to the House of Lords.'
Before the divorce, the couple, who married in December 1982 and who have two sons and a daughter, lived in a £5million home in Hampstead, north London.
Mr Myerson, who bought an £8million home in Geneva after the divorce, agreed to pay his former wife £9.5million in instalments over four years. She also received a property in South Africa, which was worth £1.5million.
Mr Myerson, the court heard, had property assets, one of which he sold to cover the first instalment of the lump sum, £7million paid in April 2008.
He has four further equal instalments of £625,000 to pay over the next four years.
But Mr Myerson's share stake, once standing at £15million and rising as the price reached £3 per share, had dramatically fallen with the value per share at the date of the initial Court of Appeal hearing standing at 27.5 pence.
His spokesman said yesterday that the high court would be hearing a freestanding application to cancel the further payment due to his ex-wife under the terms of the existing settlement.