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Court: France divorce case can be public

- gwright@charlotteobserver.com
Tuesday, Feb. 01, 2011

NASCAR Chairman Brian France's messy divorce and legal dispute with his ex-wife should play out in open court, the N.C. Court of Appeals ruled Tuesday.

Brian and Megan France had sought to keep their court proceedings secret, but the appeals court upheld a Charlotte judge's order refusing to close their court hearings.

The appeals court ruled Brian France had failed to show that his interest in keeping the litigation secret outweighed the public's right to open court proceedings.

The court, however, allowed previously filed documents in the case to remain sealed, leaving it to the Charlotte judge who handles the Frances' trial to decide which, if any, documents should be made public. The judge will also have to decide whether courtroom testimony related to sealed documents should be closed.

Among the sealed documents is a confidential agreement between Brian and Megan France concerning their separation, property settlement, child support and custody and alimony. Brian France's lawyer had said the agreement involved "intensely private" matters involving their children and finances.

"Four judges have now ruled that according to the North Carolina constitution, Brian France is just like the rest of us and that the legal proceedings in this case will be open in the interest of justice," said Ray Owens, one of The Charlotte Observer's attorneys.

Tuesday's ruling can be appealed to the N.C. Supreme Court. If it isn't, the case will probably go back to Mecklenburg District Court for trial.

Attorneys for Megan France could not be reached. An attorney for Brian France said Tuesday his party is "pleased" the court kept case documents sealed, and is evaluating other parts of the ruling.

The attorney, Johnny Stephenson, said his team is "confident" the court will "protect the parties' compelling interests in these private matters."

France is the prominent head of a sprawling motorsports enterprise. He took over the NASCAR chairman role from his father, Bill France Jr., in 2003.

Between 2001 and 2008, Brian and Megan France got married, got divorced, got married again, and got divorced again. The divorce agreement that is currently under seal is what they signed after their second divorce. It spells out not only the money owed to Megan France but also custody terms for their young twins and provisions about their upbringing, including that they be raised in Mecklenburg County, according to filings by Megan France's lawyers.

The court case began in 2008. Brian France won a ruling from Mecklenburg Judge Todd Owens, who granted France the right to file a sealed lawsuit against Megan France accusing her of breaching the divorce agreement's confidentiality clause.

Judge Owens placed the entire complaint, including his own order sealing the record, under seal - an unusual move in a court system that typically allows widespread access to courtrooms and documents. Owens ruled there was compelling public interest in protecting the privacy of the Frances regarding their young children and financial affairs.

Both Brian and Megan France also sought to have the courtroom proceedings closed to the public.

Another Mecklenburg judge, Jena Culler, overturned Owens' order and ruled in 2009 that the documents be unsealed and that proceedings be held in open court.

Brian France appealed.

His lawyer, Stephenson, has said the dispute between the Frances involves "intensely private (matters) that relate to the welfare and parenting of minor children... and private personal financial matters."

The Observer and its news partner, WCNC-TV, sought access to the secret court documents and any courtroom proceedings, arguing that unlike certain crime victims or other specific litigants, Brian France has no constitutional or compelling right to privacy that would supersede the public's right to open courts.

It's highly unusual for ordinary divorce proceedings to be completely closed to the public. Closing the court could set a radical precedent, lawyers for the Observer said.

Documents filed in support of France's appeal provided some details about the divorce agreement - information that had been sealed in Mecklenburg County.

Brian France agreed to pay Megan France a total of $9 million in "distributive" awards, as well as $32,500 a month in alimony for 10 years and $10,000 a month in child support, according to the documents.

Megan France also has accused her ex-husband of "harassing her in multiple ways," according to the documents, including hiring private investigators to follow her and violating their agreement "concerning the care of, and joint decision making for" their twins.

In its ruling Tuesday, the three-judge appeals court panel wrote that if the agreement between the Frances "requires automatic and complete closure of the proceedings... then the agreement is in violation of public policy - the qualified public right to access to civil court proceedings."

The appeals court judges wrote that were they to adopt Brian France's position, any civil proceeding could be closed to the public when any party executes a contract with a confidentiality clause similar to the Frances' agreement.

Brian France's position, the appeals court said, would also "render meaningless provisions of the Public Records Act."

The court also noted that transcripts of civil court proceedings are public records, and that the public has the right to inspect court records in both criminal and civil proceedings. Staff writer Christina Rexrode contributed.

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