Michael K. Berry - Page 18

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          terminate automatically at her death),13 subject to respondent’s            
          relevance objection.                                                        
                    c.  Respondent’s Relevance Objection                              
               Evidence is relevant (and therefore generally admissible) if           
          it has any tendency to make the existence of any fact that is of            
          consequence to the determination of the action more probable or             
          less probable than it would be without the evidence.  Fed. R.               
          Evid. 401 and 402.  If, however, the relevance of the evidence in           
          question depends on the existence of some other fact, then the              
          admissibility of such “conditionally relevant” evidence itself              
          depends on the introduction of evidence sufficient to support a             
          finding of the existence of that other fact.  See Fed. R. Evid.             
          104(b) and advisory committee’s note.                                       
               The ultimate factual issue in this case is whether                     
          petitioner and Carmen intended the family support payments to               
          terminate automatically at Carmen’s death.  Petitioner’s exhibits           
          5 and 12 certainly tend to increase the factual likelihood that             
          he and Carmen intended the payments to qualify as alimony for               


               13 We note that we would reach a different conclusion if the           
          California Family Code required that any such understanding be in           
          writing.  See In re Marriage of Trearse, 241 Cal. Rptr. 257, 259            
          (Ct. App. 1987) (“A limitation on the admissibility of extrinsic            
          evidence to prove the intent of the parties to a marital                    
          settlement agreement has been recognized where a statute requires           
          the parties to the agreement to state certain matters                       
          specifically in writing.”); cf. Cal. Fam. Code sec. 4337 (West              
          2004), discussed infra (any agreement that a spousal support                
          obligation will not terminate upon the death of the payee spouse            
          must be in writing).                                                        




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