A short version of the treatment of law in this case by the trial court and First District Court of Appeal — less than a thousand words long — can be found here.
Accounting for the epic discontentment with American society among Americans in By the People, the scholar Charles Murray gives us a plausible reason for the San Francisco trial court’s refusal to follow the California Supreme Court’s guidelines for determining the rights of unmarried cohabitants in ruling on my case: lawlessness. Right or wrong, he is certainly persuasive.
The First District Court of Appeal supported the trial court’s decision against me, which was founded on the repeated exercise of ‘judicial discretion’. This is defined by the Legal Dictionary as ‘the power of the judge to make decisions on some matters without being bound by precedent or strict rules established by statutes.’ It amounts to a judge ‘asking himself what is the fair and just thing to do …,,’ according to an eminent British jurist, Tom Bingham — which can apparently be taken by some courts as permission to reconfigure both facts and law.
About this, Murray says:
Law that is sufficiently discretionary is indistinguishable from lawlessness.
The most reluctant litigant will feel driven to turn to a court of appeal for support when a trial is strikingly abnormal or improper and the trial court’s unfamiliarity with the type and branch of law is incontestable.
What I didn’t know when I filed my appeal is that an appellate court is rarely motivated to help. For good or bad reasons, when sifting through the records of a trial, appellate judges typically care far more about finding justifications for affirming the lower court’s ruling than about the consequences of their doing so for the appellant — in this instance, me. As one legal primer — by Casey Welch and John Randolph Fuller — puts it, ‘[C]ourts in the United States tend to “conserve” previous decisions. There is an institutional preference to avoid changing previous rulings.’
In the section of this blog about the trial court’s handling of the facts of my case, I have set out some examples of the judge’s prejudicial reshaping of testimony about the history of my 16-year cohabitation with my former partner — mostly of statements made by me, but also some of his, in a statement of decision that somehow appeared on the internet almost as soon as it was issued.
As I have shown there, the First District Court of Appeal accepted the trial judge’s reconstructed narrative unquestioningly. In my appellate brief, I drew its attention to highly significant discrepancies between that narrative and actual testimony (p.31-32; 37-38) — pointing out the procedural lapses responsible for some of them, such as the trial judge’s rejection of the court reporters’ transcripts in favour of her personal notes — but the appellate justices turned down my request for a fresh and independent ‘de novo’ investigation of the facts. They dismissed the problematic proceedings, and my former partner’s position as a judicial officer at the same trial court, and said that they saw no evidence of partiality towards him.
They took an equally benign view of the trial judge’s application of law in spite of her lack of any family law expertise — to which she herself drew attention during the proceedings. (See p.9 of my reply brief.) But they went further than that. To justify their decision against me, they relied on language they appeared to attribute, fuzzily, to the ‘Marvin’ guidelines for adjudicating the rights of former unmarried cohabitants — implying that in those directives, the California Supreme Court had stated that a legally recognisable financial contract between them had to conform to one of these arrangements:
… the parties may either pool their earnings or keep them separate and agree to compensate one party for services that benefit the other.
The problem is, no such passage exists in the guidelines. The justices of the First Appellate District offered no citation or quotation to identify the origins of the lines in their opinion. My attempts to draw their attention to this omission in my Petition for Rehearing (a reconsideration of my appeal) were fruitless, as the petition was denied.
Even more confusingly, they almost made it look as if I myself were the source. Here is the whole sentence in which the lines appear — the one impenetrably opaque section in the appellate justices’ opinion:
Barron further argues that the court erred by finding no evidence of a contract between Barron and Meredith to combine efforts and earnings or to share assets acquired during the period of cohabitation, because Marvin held that the parties may either pool their earnings or keep them separate and agree to compensate one party for services that benefit the other.
And this is the conclusion by the justices that the mystery text was used to support:
The point, however, is that substantial evidence supported the conclusion that neither situation was established by Barron at trial – there was no enforceable agreement to share assets or compensate the other party for services.
Let me be clear for the sake of any readers who have, at this point, begun to feel a liitle dizzy: (1) ‘Marvin’ — shorthand for the Supreme Court guidelines — contains nothing resembling that dichotomous choice of alternatives, a fact that readers can confirm themselves. (2) I never claimed that Marvin did so in my appellate brief or anywhere else, and have found no evidence that even the trial court made such an assertion. (3) The appellate justices ignored the fundamental rule for referencing legal opinions by supplying no citation — ‘a reference to a specific portion or portions’ of the source, according to the online guide to legal citation of the Cornell Law School.
What the 1976 Marvin directions for trial courts do actually say about financial contracts — express or implied — between former cohabitants, is that judges should be as flexible, open-minded and inclusive as possible, recognising an eclectic range of possible arrangements. Recognising that it was announcing its guidelines in a time of rapid, extraordinary social change, the Supreme Court directed lower courts to respect the freedom of couples to choose what suited them best. It said that the trial court’s job was purely to determine the nature and details of the agreement between the partners to enforce it.
In other words, the appellate justices’ opinion on my case moved in a direction at the opposite pole from the Supreme Court’s intentions, making the requirements for a legitimate financial agreement narrow and rigid. This is what the Supreme Court said was permissible for cohabitants, in its 1976 instructions, which are meant to have ‘controlling authority’:
[T]hey may agree to pool their earnings and to hold all property acquired during the relationship in accord with the law governing community property; conversely they may agree that each partner’s earnings and the property acquired from those earnings remains the separate property of the earning partner. So long as the agreement does not rest upon illicit, meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements.
… and, in a footnote on the same subject, the instructions add:
A great variety of other arrangements are possible. The parties might keep their earnings and property separate, but agree to compensate one party for services which benefit the other. They may choose to pool only part of their earnings and property, to form a partnership or joint venture, or to hold property acquired as joint tenants or tenants in common, or agree to any other such arrangement.
In reply to my polite enquiry, neither a seasoned California family law specialist nor a California law librarian would tell me whether I had — or hadn’t — read the Supreme Court’s guidelines correctly; or if I had, perhaps, developed a peculiar blind spot that prevented me from finding in them the elusive either/or choice for financial arrangements to which the appellate court tethered its decision. They said that they could not discuss my question at all, even without giving me an opinion. (See The Silence of the Lawyers.) Guessing that if I were mistaken, neither of them would have hesitated for an instant to tell me so, I sent my question to the other side of the country.
The answer from a librarian on the reference desk of the New York Public Library — a specialist in searches on legal questions — was a model of clarity. First, he recommended that I read the Marvin guidelines with a lawyer, having no idea that I had tried doing that already.
He pasted in the same two passages I have quoted above. He added that the Marvin text ‘does explicitly provide for “a great variety of other arrangements”, rather than imposing a dichotomous, either/or, arrangement.’
He did not find the language the court of appeal had relied on.
I weighed the possibility that the court of appeal could have taken the mystery text from the opinion of a different appellate court that had narrowed the Marvin guidelines to some version of that text in a case resembling mine — but left out its citation. Such a case would be considered a legal precedent, or template or model, on which so-called common law is founded — the centuries-old ancestor of the legal systems in virtually all English-speaking countries. The idea behind common law is that fairness demands consistency in judicial decision-making. That is, a judge must apply the same rule of law established by a court in an earlier decision to a case whose facts and issues are closely similar.
Thrown back on guesswork, a reader of the appellate justices’ opinion turns to the most likely suspect for the case that they appear to have considered treating as a precedent — before they realised that they could not lean on it or, in technical terms, treat it as ‘binding,’ because they saw that its underlying facts were too different.
This is Marvin v. Marvin, the 1970s dispute between a Hollywood actor, Lee Marvin, and an aspiring singer, Michelle Triola — who adopted his surname without his permission, according to a scholarly historian of the case. At the start of the five or six years that they lived together, though not continuously, he was still married to someone else.
The question of whether Marvin owed Triola Marvin financial support and compensation after their cohabitation reached the California Supreme Court — which did not decide the case, but ruled that she was fully entitled to a trial of her claims. Noting the explosion in numbers of unmarried couples living together over roughly 15 years, the Court explained in its 1976 opinion that it was using its consideration of Triola Marvin’s case as a springboard for setting out guidelines for trial courts — or ‘the principles which should govern distribution of property acquired in a nonmarital relationship.’
Despite striking dissimilarities that stand out from a comparison of the cases even as mere outlines, the San Francisco trial judge had described my legal action as ‘quite similar’ to Marvin v. Marvin. Because the word ‘quite’ is used in American English as an enhancer, this meant that she was agreeing with my former partner that the facts were ‘virtually identical’. Yet during the trial, she said more than once that she was still educating herself about the history of that litigation. At one point, she stated that the Marvins had lived together for 14 years — very close to my 16-year cohabitation with my ex-partner, but almost three times longer than the actual duration of theirs.
Establishing that case as an almost exact forerunner of mine was at the core of my former partner’s legal strategy. After the Supreme Court dispatched Triola Marvin’s case for re-hearing below, an appellate court ruled against her on the grounds that she had failed to establish a legally recognisable relationship — or implied contract — and was therefore owed nothing by Lee Marvin. (The best account of the weeks-long trial and background to it is in the historian Elizabeth H. Pleck’s Not Just Roommates.)
In my appellate brief, I set out a detailed list of crucial differences — basic enough to put the cases beyond logical comparison (see p47-51).
In Marvin v. Marvin, the cohabitants were young-verging-on-middle-aged when they moved in together — Lee older and famous; Michelle climbing the first rungs of a career as a singer-entertainer. In the background of both my case and hers, a man and woman had exchanged financial and non-financial contributions to their joint household and welfare. In each case, the woman gave up her financial independence to cater to the couple’s domestic needs. He paid the bills. At the end of the Marvin relationship, Michelle claimed that for her, the price of this arrangement of less than six years was her sacrifice of a successful career. At the end of my decade and a half with my former partner, I testified simply to have made a sizeable financial sacrifice in relinquishing a well-established, two-part writing career in which I had offset relatively low-paid literary and journalistic projects with highly-paid editing and ghostwriting for Silicon Valley clients.
My former partner and I — who were in early and late middle-age when we met and gradually developed a relationship indistinguishable from a marriage, in practice — were significantly older than the Marvins during their union. The catalogue of other differences includes our relatively dull and conventional monogamy compared with their experimental, glamorous partnership, revealed by extensive trial testimony to have been most like an open marriage — after Lee Marvin’s divorce.
Among the differences between the cases that should have mattered to a court charged with deciding whether I deserved financial support and a share of the assets accumulated by our joint efforts — but held solely in my former partner’s name — were these:
• Michelle Triola, young and carefree, had only a handful of love letters from Lee Marvin to substantiate her claims about their mutual commitment. My lawyer at the trial relied on legal documents including wills in which my former partner and I had each designated the other as sole beneficiary — and my former partner’s had been witnessed and notarised by colleagues in his law practice. (See the section on Treatment of Facts.)
•Whereas Michelle, though gifted, was making a late debut as a 32 year-old singer when she met Lee Marvin, I had groped my way into jobs in London journalism in my early twenties; worked on the staff of well-known magazines; survived the usual rejections to have a first book launched by one of the big New York publishers and struggle with a publishing industry in a perpetual state of restructuring — many years before the cohabitation at the centre of my case. I had seized the chance from this progress to wean myself permanently from full time journalism, move to a beautiful, remote part of rural California with a low cost of living, and juggle work done chiefly for money with non-pecuniary activist and literary writing.
Unlike the trial court, the First District Court of Appeal acknowledged that I was right about the dissimilarity or, in legal terms, ‘distinguishability’ of the cases. But — as I have explained in the Treatment of Facts section of this blog — the justices conceded my point without conceding its implications.
The trial judge’s insistence that the cases were indistinguishable had been pivotal to justifying her ruling against me — claiming that, just like Michelle Triola, I had no evidence of an implied contract with my former partner for an exchange of caring and support, and that as I had given up nothing when I moved to the Bay Area, deserved no compensation. The additional written evidence she had requested for my statements to the contrary — which had been set out at trial and in pre-trial submissions — was rejected by her essentially on the grounds that the trial was over, although she herself had made those requests as the trial was ending, with a deadline for delivery two weeks after that. (See Treatment of Facts.) The curious resemblance of some of this to the court proceedings in Alice-in-Wonderland was attributed by my former partner to the trial judge’s missing expertise in civil proceedings and civil law, freely and publicly acknowledged by her.
Unfortunately, there has been no rescue for me from the consequences of her inexperience. Instead of overturning the decision based on clear denials of due process, and misinterpretation and misrepresentations of law, the appellate court affirmed it.
In the Petition for Rehearing by the appellate court in which I drew attention to its reliance on law nowhere in the Marvin directions for assessing implied contracts, I also pointed out that its opinion had misquoted one of my main arguments. According to that opinion:
Barron contends the trial court erred in ruling that a contract requires certainty of terms, insisting that there is no such requirement and that a contract can be found by considering surrounding circumstances.
I did not deny that most contracts need clear and unambiguous terms to be enforceable. I did say, in my appellate brief, that the trial court was mistaken when it asserted that the Supreme Court guidelines ordained that implied contracts between unmarried partners had to be like ‘any other civil contract, subject to the law of contracts.’ (See p.52 .) Precisely to the contrary, I pointed out that the guidelines recognised contracts between former cohabitants as a special category, looser and less formal than standard contracts — and that the Supreme Court
did not impose a requirement of certainty of terms and conditions on nonmarital partners. It observed that its ‘overview of the many cases enforcing agreements between nonmarital partners reveals that the majority of such agreements were oral.’ […]… Its clearly enunciated motive for devising its guidelines was not to make contracts between unmarried partners identical to commercial instruments but to end the tendency of trial courts not ‘to permit a nonmarital partner to assert rights based upon […] implied contracts or equity.’
The guidelines made it clear that a contract could be express or ‘implied-in-fact,’ — that is, ‘determinable’ from the conduct of unmarried partners.
On this subject, the legal scholar Candace Kovacic-Fleischer in Washington DC has cited the authority on trends across America in court decisions on particular types of cases — known as the Restatement (Third) of Restitution and Unjust Enrichment. In response to the pattern of recent rulings about contracts between former cohabitants, she says, the editors of that compendium added a new section showing that trial courts mostly acknowledge that ‘cohabitants are not in a business relationship and that business rules are therefore inapplicable.’ ( See my Petition for Review, p.12-13.)
Law students around the world are likely to be the most avid, devoted audience for an online court now in the works in Britain — unless its designer, Lord Justice Briggs, succeeds with his plan to endow it with rules written in plain English, which should ensure many more watchers. Appellate courts of the future will find it harder to refuse to fault a trial court for appointing a judge with virtually no experience of civil law, for practical purposes — and to disregard the horrific consequences of this for an appellant. Will they feel so free to let judicial discretion stretch to remoulding law and facts as drastically as in my case — to misstate or invent legal directives; omit crucial citations without explanation; distort and misrepresent an appellant’s arguments in treatment known among respected appellate lawyers as ‘sliming’?
As an outsider to the legal system, it is impossible for me to gauge whether Charles Murray, quoted at the start of this article, is mistaken — but if he is not, could the following encapsulation by him of the state of things hold true once justice is on the net and transparent?
If the objective rules are discarded, then the rule of law morphs into a modern-day version of a primitive legal system in which people with a quarrel have to accept whatever the headman of the tribe says is right. For much of American civil law, that’s not a bad description of where things stand now. [ The italics are his. ]
— By the People, Crown Forum: Penguin Random House (2015)