Secrecy in Frances' bitter divorce is back in court

Attorneys for The Charlotte Observer urged a Mecklenburg judge on Friday to unseal documents in NASCAR Chairman Brian France's legal battle with his former wife.

"It is time for openness," Ray Owens, who represents the Observer and WCNC-TV, told District Judge Jena Culler.

The Observer's attorneys argued that the judge should unseal the documents because attorneys for Brian and Megan France have previously publicly disclosed "alleged confidential information" in both the local trial court and the court of appeals. Those disclosures, the attorneys said, involved the Frances' separation agreement and the nature of their ongoing litigation.

"These voluntary public disclosures by both parties over a period of 14 months ... completely undermine these litigants' assertions that their separation agreement and any purported violations thereof should be shrouded in secrecy," the Observer's attorneys wrote in one document.

"This now-public information goes to the heart of the public's interest in this case - ensuring that civil justice is applied fairly and evenly, irrespective of the wealth and power of the parties involved."

But Brian France's attorney, Johnny Stephenson, told the judge that some public disclosure about the separation agreement and the legal dispute is necessary after the N.C. Court of Appeals ruled earlier this year that the litigation between the Frances must be held in open court.

"You can't litigate over sealed matters without some reference to the sealed matters," he told the judge.

Stephenson also argued that then-District Judge Todd Owens' order in 2008 sealing the documents has not been overturned and is still in effect. The court of appeals, he said, has instructed the trial court judge to conduct the hearings in a way that doesn't "run afoul" with Owens' order.

"The order is the law of this case," he argued. "And we have to abide by it."

Culler did not rule Friday on whether the documents should be unsealed or remain secret.

"I'm going to take this under advisement," the judge said. "I certainly want to make sure I get this right."

In court papers supporting their arguments to unseal the documents, the Observer's attorneys listed some of the details that have been publicly disclosed about the Frances' litigation.

Among those details:

Brian France received in the separation agreement "confidentiality, liberal visitation with his children, joint decision-making with respect to the young children and security of location of the children."

France agreed to pay his ex-wife $9 million along with more than $30,000 a month in alimony.

Brian France failed to pay school-related expenses for the children and refused to make timely spousal support payments.

France accused his former wife of submitting $60,000 in unauthorized personal expenses.

France claims his ex-wife has breached their separation agreement. He's seeking to scrap the agreement that calls for him to pay the mother of his two children millions of dollars, as well as more than $40,000 a month in alimony and child support.

The Observer and WCNC first challenged Judge Owens' ruling sealing the Frances' divorce case in November 2009, asking that the documents be unsealed and the court hearings kept open to the public.

The following month, Judge Culler ordered that the secret court files be unsealed. Brian France appealed.

In February, the N.C. Court of Appeals ordered that the Frances' litigation be held in open court. The appeals court judges, however, didn't overturn Owens' order sealing the documents. Instead, they left it to the state judge presiding over the Frances' litigation to decide which, if any, documents should be made public.

More racing news, blogs, photos and more at www.ThatsRacin.com.