[Clueless in SD]

This is my first post & I am sorry if I don't post it in the correct catergory. Here's our story. About 2 years ago, my husbands ex wife signed their daughter up for competition cheer (much more expensive than regular cheer). She never talked to us about it or even asked if we would be willing to help with half, she just told the coach to send us 1/2 the bill. We called the coach, back then and said that we would help with what we could. She explained that the ex wife was currently getting grants for stepdaughter to cheer, but she could still use our help. My husband asked that we be notified of competitions and such. She agreed. Well we helped out that first year, We paid a total of like $400 or $500 ), in payments then the season was over (although our calls to the coach for directions and times of the events always went unreturned, we still helped out) Ex wife signed her up again, we didn't know she was going to do this, AGAIN never consulted us, & now we get this bill for $1600!! We can not afford that. so my husband calls the coach and leaves her a message explaining that he was not able financially to help with cheer. He is now paying more child support & just can not afford it. She goes on to say that she has bills too & that bottom line - we owe the money. Husband says no, WE never signed her up, WE will not be able to help. To top it off Ex wife is now co-coach for the team & we have been told by 2 other parents that stepdaughter has free cheer because of this & that they belive we are getting scammed as the ex wife & main coach are now steadfast friends. Husband asks cheer coach this & she starts stammering but then holds to her arguement that we owe her. Of course ex wife will do anything to spite my husband & she says that she is not getting free cheer. That is probably beside the point here, we just want to know if we are actually bound to pay this woman Now today we get a registerd letter from her demanding payment & threatening small claims court.
Please help us. Are we obligated to pay this?? We have no signed agreement with her that we would.

[aaron]

You probably have a valid defense. As you did not sign the contract, the coach is presumably trying to force you to pay to satisfy the contractual obligations of the person who signed the contract (your husband's ex-wife).

South Dakota has several statutes relating to when contracts must be in writing, and the significance of a writing. Those statutes include the following:

Execution of contract in writing supersedes oral negotiations or stipulations. The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.

If you're being asked to pay on a contract you didn't sign, on the basis of promises made in relation to the prior year's contract, that statutory provision would appear to provide a defense.

If you do end up being sued, you would likely benefit from consulting a local attorney to be certain that you avail yourself of all defenses available to you, including the possibility of filing a cross-claim against the ex-wife, demanding that she indemnify you for any unpaid balance due under the contract she signed.

[Clueless in SD]

Thank you for your advice. However we are in San Diego, CA. Would the same still apply???

[aaron]

In most states, SD means "South Dakota". But California likes to be different.

You're actually better off under California law than under South Dakota law, as California's "Statute of Frauds" has more favorable language:

1624. (a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent:

* * *

(2) A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in Section 2794.

(See also Section 2794).

From what you have described, that's what is being alleged - that you (well, your husband) made an oral promise to answer for the contractual debt of his ex-wife, and now the coach is seeking to enforce that supposed oral promise.

[Clueless in SD]

Thank you Aaron, for your help with this. Now at least we have something to base our arguement on. Have a great 4th!