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Court: Unseal documents in NASCAR chairman’s legal fight with ex-wife

Documents ordered opened in NASCAR chairman’s legal fight with his ex-wife

- gwright@charlotteobserver.com
Monday, Dec. 31, 2012

The N.C. Court of Appeals on Monday upheld a Mecklenburg judge’s order unsealing the secret documents in NASCAR Chairman Brian France’s legal battle with his former wife.

The appeals court ruling is the latest twist in Brian and Megan France’s efforts to keep secret the details of their legal wrangling and the contents of their confidential separation agreement.

Brian France has sought to scrap the separation agreement with his ex-wife that calls for him to pay the mother of his two children $9 million as well as more than $40,000 a month in alimony and child support. The NASCAR chairman claims Megan France breached their confidential agreement.

The appeals court ruling Monday upholds Mecklenburg District Judge Jena Culler’s ruling in August 2011 unsealing the documents in the Frances’ litigation. Culler also overturned an order by a former judge sealing the documents in 2008.

“The public has a right to access court files,” Culler announced in court. “I feel very strongly that these files should be unsealed.”

Johnny Stephenson, one of Brian France’s attorneys, told the Observer: “We are disappointed by the court of appeals opinion, which we believe to be legally flawed, and we intend to seek immediate review from the N.C. Supreme Court.”

Ray Owens, an attorney for the Observer and its news partner, WCNC-TV, said he is pleased that the appeals court agreed with the positions of his clients.

“Our appellate courts have now twice unanimously ruled that Mr. France must seek justice like the rest of us – without special consideration or favor,” Owens said. “Our legal system – even with its flaws – desires openness over secrecy and the Court’s decision today only serves to emphasize that principle.”

Brian and Megan France had also sought to have the court hearings closed to the public. But Culler in 2009 ruled that the courtroom proceedings would be open to the public. The appeals court upheld that decision, concluding that Culler had not erred by refusing to close the proceedings.

On Monday, the appeals court panel voted 3-0 to uphold Culler’s ruling unsealing the documents. The appeals court judges said they found no “abuse in discretion” in Culler’s decision.

The secret documents, however, won’t be unsealed immediately. Brian and Megan France can now appeal.

At a hearing in July 2011, Observer attorney Ray Owens urged Culler to unseal the documents.

“It’s time for openness,” he argued.

But Johnny Stephenson, one of Brian France’s attorneys, argued that then-District Judge Todd Owens’ order in 2008 to seal the documents had not been overturned and was still in effect. “The order is the law of this case,” he told the judge. “And we have to abide by it.”

Culler, in ordering the documents be unsealed, found that there had been substantial changes in the circumstances surrounding the litigation between Brian and Megan France. One of the changes the judge cited were published reports in the media disclosing details about the Frances’ confidential separation agreement. Another occurred when the appeals court upheld Culler’s ruling that the Frances’ litigation would take place in open court.

Public disclosure about the Frances’ separation agreement, Culler said, warranted unsealing the documents. The judge also pointed out the difficulties of holding hearings in open court about documents that are under seal and issues that are confidential.

“This is simply not how our courts are supposed to run,” Culler said.

The appeals court, in its ruling Monday, cited its decision in 2009 upholding Culler’s order that the Frances’ litigation should be played out in open court. That ruling, the appeals court judges wrote, was sufficient alone to warrant a reconsideration of whether Owens’ 2008 order sealing the documents in the Frances’ litigation was still proper.

The appeals court judges said they found “no indication of abuse of discretion” in Culler’s findings of fact.

“The findings of fact are supported by the evidence and each reasonably supports the conclusion of law that a change in circumstance has occurred,” the appeals court judges wrote. “Therefore, we affirm the trial court’s order unsealing the documents.”

Wright: 704-358-5052