Opinion
FSTFA144026825S
09-19-2018
Marianna Ponns COHEN v. Benjamin H. COHEN
UNPUBLISHED OPINION
OPINION
Barbara M. Quinn, Judge Trial Referee
The present action for dissolution of marriage was commenced on February 3, 2014 and returnable on February 18, 2014. The marriage of the parties took place on June 9, 1997 in New York, New York and the wife’s birth name was Marianna Ayers. Each of the parties was a resident of Connecticut for more than one year prior to the commencement of this action. It is undisputed that the marriage has broken down irretrievably with no prospect of reconciliation. During the course of the parties’ relationship, three children were born to them, all of whom have now reached their majority. They are: Theodora, born in 1995, Alexander, born in 1997, and Nicholas, born in 1998. Theodora has graduated from college and Alexander and Nicholas still attend college. From the evidence, the court concludes that the plaintiff wife is not pregnant and that this family has never been the recipient of public assistance. The court finds that it has jurisdiction over this matter, which was tried over the course of many months with twenty-four trial days and numerous motion hearings.
The course of the trial was lengthy with many delays and rescheduled dates. More than one thousand electronic exhibits were offered by the plaintiff, often in a disorganized and confusing manner, most of which, as will appear in the court findings below, were entirely irrelevant and not probative of any relevant facts which could assist the court in its findings or required determinations. The court has relied upon the credible, probative and reliable evidence, as well as the reasonable inferences to be drawn from such evidence. The court has also observed and considered the demeanor of the parties and witnesses at trial. In addition, the court has considered all the relevant statutes as well as applicable case law in reaching its conclusions. The court unseals the parties’ financial affidavits in this case. Based upon the forgoing, the court makes the following findings of fact.
1. Background and Previous Marriages of the Parties
Each of the parties has previously been married to other individuals; the plaintiff was married for about ten years and divorced from her first husband in 1991. There were no children of this union. The husband was married for fourteen years and divorced in 1992; he has two older children from his first marriage. At the time Marianna and her husband-to-be met, they were each still married to others, but soon separated. Marianna had graduated from law school at New York University in 1984 and was employed at the firm of Shearman and Sterling in the litigation and corporate department until December 1992, when she ended her time there as an associate. She has not been gainfully employed since that time.
Ben has been employed both before and during the marriage in financial services and has been the primary and very well-compensated wage earner in this family. He has a bachelor’s degree from Lake Forrest College and a MBA from the University of Michigan. His employment ended in December 2015 when his position at Point72 Asset Management, L.P. ended.
After he and Marianna met, they married for the first time on June 19, 1992. They were divorced two years later, on June 30, 1994 and the issues that troubled them then continued to follow them into the future. They had a turbulent relationship. They argued and apparently, at least according to Marianna, had difficulty in adjusting to a stable relationship together. Marianna, while claiming a good relationship with her two stepsons at the time, already was exhibiting jealously toward them and the amount of time Ben was spending with them at their sports games and other activities.
There was a single event, which has become central to one of Marianna’s claims in the present dissolution case, which precipitated the breakdown of their relationship at that time. As is typical in dissolution cases, each of the parties describes this event quite differently, but between the testimony and the documentary evidence, certain underlying facts can be established. On the evening of September 8, 1993, they were arguing with each other, when Marianna, the court finds, tried to claw Ben’s face with her fingernails. Ben pushed her away to avoid this, and she tripped and fell. Unfortunately, she fell on an unprotected metal bed frame in their apartment in New York and injured her ear and her back. The photos of her injuries show the considerable extent of the injuries. The hospital report from that time, which was ultimately admitted into evidence, reflects, in almost the same words used by Ben in his testimony in this trial in 2017 that she tripped and fell on the metal bed frame after he pushed her. Exhibit 316, the medical report of that date, contains "Pt. states was pushed by husband tonight slipped and fell. Abrasions to back and ear."
Marianna’s description at the present trial of these events is considerably more emotionally tinged than what she reported for purposes of treatment to the doctor contemporaneously with the event. It is indicative of much of her overstated testimony in this trial and her difficulty in answering any question in a thoughtful direct manner. Her exaggerations and often illogical claims make it difficult to credit much of her testimony. She testified that on September 8, 1993: "her husband assaulted her, threw her across the bedroom and caused her to strike her back on a metal portion of the bed during an argument." Her contemporaneous report to a doctor for purposes of treatment contradicts her present exaggerated recollection of the event.
Ben’s testimony at trial was that the incident began with a verbal disagreement and then Marianna had scratched his face. He then grabbed her wrist and pushed her away. She tripped and hit her back and ear against the metal frame of the bed. "It was the most serious physical incident we ever had." He stated that he went to the hospital separately to see how she was. When her examination and treatment was over, Ben and Marianna shared a cab ride back to their apartment.
Testimony, transcript of October 24, 2017.
An acquaintance of Marianna’s from that time testified that she came to the apartment a day later to check on Marianna. She found her depressed, frightened and very upset. She had been asked by her husband, an acquaintance of Ben’s at work, to check on Marianna. Her friend took the photos which were admitted into evidence at this trial. While her friend testified as to her observations of Marianna’s mood, she was unaware of other events in Marianna’s life which could also have contributed to her depression. While it is undoubtedly very upsetting to have such an event occur and to experience an assault on one’s physical well-being and integrity, the court concludes it was a one-time event, for which Ben remains remorseful. Based on the probative and reliable evidence, this incident was not, the court finds, the beginning of a pattern of physical abuse in the relationship between Marianna and Ben, as the court will detail later on in this decision.
Interestingly, on cross examination, her friend was unaware Marianna was no longer working as an attorney at Shearman and Sterling or the reasons for her departure. She did not know that Marianna had not secured other professional employment.
After this event, Marianna secured a restraining order (an order of protection) and the parties no longer lived together. By May 1994, they had reached an agreement in their dissolution proceedings and had a month to wait until the decree became final. It was during this time that Marianna discovered she was pregnant. Ben was prepared to undo the agreement and remain married. Marianna refused and, after the decree became final, moved to Greece, where she owned property and where she was raised until the age of sixteen, when she first came to the United States.
Following her move, Ben was transferred by his employer to London and Marianna moved to London for a period of time. Their daughter was born in London, but the parties’ disputes about finances and difficulties continued. Marianna returned to Greece with their daughter in 1995. The parties moved back and forth between London and Greece, in sync it appears with their ability to get along. During the course of this time, several marriage licenses were procured, but the marriage was not celebrated. The court concludes that the failure for more than three years of their remarriage to take place centered around Marianna’s insistence on a financial agreement between Ben and herself.
Marianna testified she did not want the same financial arrangements that she had with Ben during her first marriage. She was very angry about the sums being paid to Ben’s first wife and two children pursuant to their dissolution agreement. It is unclear to the court how a trained lawyer could not appreciate that court orders in the end of Ben’s first marriage had priority over other subsequent financial obligations. Ben had no choice but to pay them. Marianna also remains offended and complains to this day that Ben did not pay her any child support for Theodora except for small amounts. Yet, it was her unilateral decision to end the first marriage to Ben even after she discovered she was pregnant. She also testified that she was upset that Ben paid more attention to his boys than to his daughter, Theodora. The court finds that Marianna was jealous of and resented the money Ben spent on his two oldest children. She also complained of the time he spent with them and attending their sports events, flying to the United States from London from time to time.
Sometime after this, Marianna became pregnant with their second child. She and Ben began to talk about marriage more seriously and she raised the subject of a financial agreement between them. In May 1997, the parties signed a document which Marianna claims purports to govern their financial affairs after marriage. It is Marianna, the court finds, who wanted a level of financial control which she believed she did not have during the first marriage.
This agreement has become one of the central supports, in Marianna’s view, of her entitlement to additional millions in excess of one-half of the sizeable marital estate in her claims for relief. She claims that these extra funds were squandered without her approval during the course of her second marriage to Ben. She sees the agreement as giving her a veto power over marital expenditures which she now does not like. It is the theory upon which she relied to turn the trial into a lengthy, ultimately failed attempt at a detailed financial accounting of a twenty-one-year marriage. The court will address the agreement and its claimed legal consequences later in this decision. The court finds that many of the issues that plagued this couple during their first marriage and their subsequent separation were also the issues that continued to divide them in their second marriage. Those issues were Marianna’s anger, her inability to compromise, her significant financial and other control needs and Ben’s failure to comprehend the vast chasm that lay between them. Those issues remained largely unaddressed by either party and contributed to the destruction of their second marriage.
2. The Present Marriage
In June 1997, the parties remarried and jointly purchased a residence in Greenwich, Connecticut. Later that summer, their son Alexander was born. At the time of the first purchase, Marianna contributed $200,000 of her own funds and Ben contributed $600,000 toward the down payment required for this home, which cost more than $1,000,000. The court finds, from the credible testimony, that at the time of the marriage both parties were in good health and had considerable assets in their respective names. A financial statement completed by both for financing their residence in May 1997, reflects that Marianna had slightly less than $1,000,000 and Ben had approximately $4,600,000 in net assets. Another of the defendant’s exhibits demonstrates Ben had approximately $10,000,000 in his name at that time. While Marianna attempted to prove her share was much greater, the court does not find, based on the credible and reliable evidence, any support for her claims. Whatever the exact amount of each of their contributions, they both had considerable assets at the outset of their second marriage and Ben’s share was some multiples greater than Marianna’s contribution, the court concludes. They began their second marriage with significant financial assets at their command.
See Exhibit 89A, including the additional two pages signed by Marianna.
Next followed a period of time during which Marianna was preoccupied with raising their children and her own health issues while Ben was working to secure his family’s financial future and his career. They lived together in their residence for six years and while there, their third child, Nicholas, was born. Next, they sold that home and they purchased their second residence in Greenwich, which they still own and in which Marianna resides. Marianna’s testimony of the early days of their present marriage reflects the typical resentments of a mother and housewife at being home and her sense of being somehow sidelined. She felt that Ben was not sufficiently attentive to her and the children. She resented that Ben was away at work in Japan for eight months, which had terrible consequences, she believes, for her in terms of her ability to cope with the children, household help and so on. She remains angry about her circumstances to this day, although in terms of his career opportunities, it is not at all apparent what else could have been done. She flew to Japan multiple times, he returned home as much as he could and they met in Hawaii a number of times. There was household help for Marianna when the children were small, but she believed herself to have been overburdened with child care responsibilities without Ben’s support. Somehow, the couple muddled along.
Ben testified that Marianna had significant household help throughout the course of the marriage. When the children were little, there was a baby nurse, then nursery school and in-home assistance, then a driver and after-school helpers as well as a house cleaner multiple times a week. Given his hours of work and resulting financial success which she has benefited from, it is not apparent what other options were open to this family.
Marianna testified to what she claims was one incident of physical abuse in 1998 when she was pregnant with their third child, Nikki. At that time she had had a disagreement with Ben about the conduct of one of her stepsons who did not say hello to her when he came into the house. Ben was mad, Marianna testified, that she felt disappointed in her stepson’s behavior. Ben believed Marianna’s position was unreasonable. The next day, apparently Marianna walked to the mailbox and, whether upon her leaving or returning, Ben hit her in the stomach with the door. While Marianna in retrospect seems to believe it was a part of a pattern of physical abuse, the court cannot credit her emotionally tinged categorization of the event in this fashion. It is an event open to differing interpretations at best. The court concludes it was an accidental event, if it occurred at all as Ben has no memory of it.
During this time, Marianna was diagnosed with an autoimmune disease and it was thought for a time she had cancer. Marianna believed that Ben did not treat her medical condition as sufficiently serious nor was he adequately solicitous of her health and feelings. As is typical with such conflicts, Ben’s position is that she was able to go shopping shortly after her surgery and that it was not quite as dreadful as she now recounts. Marianna also believes that her husband was not sufficiently concerned about their youngest son’s medical and other needs, which required many doctors and other visits which she primarily attended. She testified concerning emergency room trips and surgery required for each of the children, when she believed Ben did not sufficiently participate. Her view and claims of Ben’s parental neglect are opinions the court cannot endorse.
The court finds that each of these parents demonstrated their love and care of their three children in different ways consistent with their separate parenting roles and styles. Ben’s testimony, which the court finds credible, indicates his level of involvement and concern, which the court credits. The court finds that, while Marianna’s feelings are understandable, they are considerably magnified in retrospect and colored by her desire to be viewed as a victim. Couples of necessity must find their respective roles in a marriage, which may be very different from their starting expectations. They cannot easily each be the primary caretakers of the children and the household or the primary breadwinners at the same time. Each typically makes some common sense and necessary adjustments in their expectations and understandings; an adjustment process which Marianna rejected with bad grace and vociferous complaints. She views the difficult time-consuming child-raising years only from her optic, not giving any credit to the time and effort Ben spent to be involved in his children’s lives, school, homework and sports activities. She also does not sufficiently credit his career success and the significant financial benefits which accrued to her and the family as a result of his efforts. His earnings are reflected in the parties’ tax returns and show millions of dollars in income and benefits during his high earning years. She also claims that her marriage broke down between 1999-2002, a claim the evidence does not support and which the court cannot credit.
The tax returns run many pages and are Exhibits 2-19.
Marianna also complains bitterly about his lack of interest in teaching her his investment skills. His unwillingness to do so was, the court finds, a result of his experience with Marianna concerning an IRA he helped her invest. She was so vociferously upset with every loss and what needed to be done, that any training would have been futile. His experience taught him to be hands off with his intolerant and controlling wife. Her complaints also raise the question of why, with considerable assets of her own under her control, she could simply not have hired an investment advisor of her own. But as will appear later on in this decision, such independent and adult action is at odds with her need to be seen as a victim. She did not take any independent steps in this regard.
She also complained that Ben did not involve her with his business colleagues for dinner or other social interactions. Ben, in contrast, testified that he tried at times to involve his wife, but his colleagues requested she not participate. If her conduct during such events was like her conduct at trial, his response is very credible. Her presence is hostile, disruptive and combative, as she cannot tolerate any viewpoint other than her own. Her conduct, if the same, would not have been conducive to congenial exchanges. She appears unable to conform her conduct to general normative requirements, including directions from the court at the time of trial.
Marianna testified that, throughout the marriage, Ben did not treat her well but criticized her and belittled her. She never felt that he accepted her as an equal partner. She states that she suffered constant verbal abuse. She felt he turned his older sons against her and made her feel like she was not fully part of the Cohen family. She appears not to have understood how off-putting her own conduct was when she distinguished between her three children and her stepsons. In addition, she focused throughout the trial on the correctness of her view point and behavior throughout her married life, while apparently unable to recognize the impact of her angry and vituperative conduct on others, including her husband.
Ben did admit that their marriage had its ups and downs and difficult times and that they fought. He also stated that at times he spoke of divorce, but more frequently it was Marianna in those early years. Her discussions about divorce occurred every other year or so. Primarily, he said they fought about her spending habits and use of money.
As the children grew older and began to attend boarding schools when they reached the ninth grade, Marianna had more time and freedom on her hands. She decided to become involved in the Greenwich School Board and was elected as a member of the board in 2008. She served for a period of four years. During these years, Ben would make sure he was home on the evenings the Board met and Marianna was out. He stayed with the children who were still living at home during those years. During the course of her service, she became intimately involved with a person she had met during her involvement with the Republican Town Committee and the School Board.
In the summer of 2009, Ben discovered Marianna’s extramarital affair and confronted his wife. He did not want to divorce because of the children and thought he and Marianna could resolve their differences. Nevertheless, at the end of 2009, in December Marianna filed for divorce, which action was pending for approximately two years. Ultimately, in November 2011, Marianna withdrew her complaint and the parties determined to reconcile. Ben also withdrew his cross complaint. A condition of their reconciliation was that Marianna would have no contact with her former paramour. For another three years, the parties continued to be together. They resumed marital relations at that point.
Marianna was unable to keep her promise for any length of time, although she went to some lengths to conceal her continued involvement. She was furious when she was discovered and confronted. Her fury was still apparent during her testimony at trial. Her attempts to claim that one confrontation was part of a continuing pattern of battering by Ben were not credible. That underneath it all Marianna wished to taunt Ben about this relationship was demonstrated by several events. First, Marianna and her friend were seen by Ben and his children while they were all vacationing in Greece and at the beach in 2009.
Somehow, she and her paramour met on a separate Greek island while Ben was caring for the children that summer in Greece. Apparently, she thought it necessary to drive by the beach on the island where he and the children were with her friend in the car while on the way to the airport with him.
Next, when asked by Ben in January 2010 not to invite her friend to a party Marianna was having at her home for school board members and other prominent local members of the Republican Party, she agreed. However, when Ben came to the house expecting the party to have wound down, her friend was there despite her promise. He attempted to choke Ben when asked to leave.
This event was a watershed in the relationship between the parties and occasioned not only a police report, but one which was most recently revised by the police department, years after the event.
Marianna testified that when Ben came into the house, he tapped her friend on the shoulder and said "come with me." Marianna followed them into the kitchen as she said she wanted to stop their argument. She stated that she got between them, and Ben had his hands around her neck and then an argument between Ben and the boyfriend occurred. She did not testify that it was the boyfriend who attempted to choke Ben.
None of the contemporaneous reports of the event support Marianna’s trial testimony. At some point that evening, the police were called and statements taken. No arrests were made. The police report became an exhibit in this trial. As with the incident which took place in 1993, in her report to the Greenwich police when interviewed at that time, Marianna did not accuse Ben of trying to choke her in the kitchen. She stated to the police then that Ben tapped the boyfriend on the shoulder and that they then went into the kitchen. Ben then told the friend to leave the house. An argument erupted. She states that she did not see anyone putting hands on one another. She also reported at that time in 2010 "that there had never been any problems with abuse involving her, Benjamin or the children. That she wanted nothing to do with what happened tonight and preferred to keep herself ‘out of it.’ "
Ben’s statement to the police was that he and Marianna had a verbal agreement that the friend would not be in the house. He knew there was a party at the house and that Marianna had said it would be over at 8 p.m., so he waited until 10 p.m. to come home. He said that once in the kitchen, he and the friend had an argument and that the friend began choking his neck with both hands. He also stated that Marianna was present during the argument in the kitchen and saw this event. The officer observed that Ben’s neck was slightly red and photographs were taken.
Ben’s testimony at trial was that after he tapped Marianna’s friend on the shoulder to get him into the kitchen he said to him "I want you out of the house now." He testified that the friend became enraged. He acted as though he owned the house already and did not need to leave. He put his hands around Ben’s neck and started to choke him.
Marianna’s boyfriend reported the event to the police in 2010 somewhat similarly, describing the tapping on the shoulder as aggressive by Ben. He also said Marianna was in the kitchen and attempted to intervene. When Ben took an aggressive stance toward her as though he was going to punch her, as he saw it, he grabbed Ben by his shirt and pushed him.
Exhibit 379, the Greenwich Police Department report of 1/23/2010.
As it was in 1993, it is Marianna’s contemporaneous account that speaks volumes about what took place. Her present recollection has distorted the events to recast them to fit her theory of domestic abuse. Had Ben choked her, her boyfriend would certainly have reported it to the police that evening. That he did not do so confirms Ben’s account and discredits hers. Her present testimony leaves out the salient points, some of which she reported to the police at that time. In 2010, she said nothing about being choked by Ben and neither did her boyfriend. The court concludes that Marianna’s later testimony is not credible and cannot be relied upon or accepted by this court. Her claim that this was the second incident of physical abuse in her marriage by Ben cannot stand. The court does not find her reconstructed memories of the event true or accurate, given the totality of the evidence in this trial. There was no such abuse of her by Ben in 2010.
The next event during which she taunted Ben with her relationship with her boyfriend took place in 2013. Marianna took a Mediterranean cruise with her lover. Ben found some evidence of the planning for this trip in the house and learned when she would be returning. Upon her return from the cruise in September 2013, Ben confronted her at the airport about her continued affair. Nonetheless, whatever their various maneuverings around her extramarital affair, both Marianna and Ben had determined to try to save their marriage and continued to live together as husband and wife. It is apparent, however, that by February 3, 2014, the marriage had broken down irretrievably when the plaintiff filed the present dissolution action.
In June 2014, Marianna claims the third incident of physical abuse took place. She testified it was clear to her that Ben was having an affair. When they were in the house together and while emptying the dishwasher, Ben’s phone accidentally dropped to the floor. Marianna picked it up. She claims Ben was in a total state of panic and grabbed her arm to shake the phone out of her hand. He chased her around the kitchen to secure his phone. She claims that there were marks on her arm as a result of his attempt to secure the phone. At that point, the dissolution action had already begun and again, it is Marianna’s self-justifying interpretation of an ambiguous event to support her present viewpoint. It was during a time when emotions were heightened due to the final breakdown of their relationship and it was not long afterward that Ben made sure he and Marianna did not intersect in their lives so much.
Marianna has spent much discovery time and effort attempting to prove that the defendant began his affair with another woman prior to the commencement of this action. The court concludes that there is no credible evidence that the relationship began before late 2015, well after this action had been pending and the parties had separated and were living in different residences. The court finds that it is the plaintiff who was unfaithful to her marriage vows, beginning more than ten years ago. She exhibits no remorse or shame over her conduct and appears to have concluded that on this topic, her strategy of unfounded accusations and excessive discovery tactics are the best defense to her poor conduct. Unfortunately for her, the outcome has been just the opposite. The court does not credit her testimony that she is a woman scorned or mistreated by her husband.
She, for example, harassed female corporate partners at Paul Weiss in New York as she believed one of them was her husband’s paramour.
As the court noted with respect to the failure of this couple’s first marriage, they were never able to form a lasting mutually loving and supportive relationship. While Marianna’s extramarital affair can be seen as a contributing factor to the breakdown of the relationship, it is not the only such factor. The court does not condone this conduct but does not attribute fault exclusively to either Marianna or Ben.
3. Plaintiff’s Legal Claims
As a foundation for her claims for relief, Marianna claims that (1) the financial agreement signed by the parties just before their remarriage in 1997 entitles her to reimbursement of expenditures from joint funds she does not accept; and that this entitlement runs from the beginning of the marriage to the present time; (2) that she is a battered spouse subject to physical abuse, verbal abuse, coercive financial and sexual control by her husband; and (3) that Ben has dissipated the assets of the parties for non-marital purposes. The court will address each claim in turn.
a.) The Financial Agreement signed by the parties in 1997 and the Reimbursement Claims
The purported agreement, the court finds, does not comport with Connecticut General Statutes § 46b-36a et seq. or the case law concerning such agreements, which the statute now codifies. "The validity of prenuptial contracts in Connecticut is governed, since October 1, 1995, by the Connecticut Premarital Agreement Act (act). General Statutes § 46b-36a et seq. Prior to the act, our Supreme Court had set forth the standards for determining the validity of a prenuptial agreement in McHugh v. McHugh, 181 Conn. 482, 436 A.2d 8 (1980) ..." Dornemann v. Dornemann, 48 Conn.Supp. 502, 510, 850 A.2d 273 (2004).
The most central requirement is that there needs to be full and fair detailed financial disclosure provided by each of the parties and that they each have an opportunity for legal advice concerning the agreement. There was no evidence presented to that effect and the agreement was not specifically pled in the dissolution complaint, a further requirement for it to be considered by the court. The agreement does not address future children of the parties or their support. It also does not provide for a division of assets upon dissolution. It is not an enforceable document but is void against public policy. Marianna’s attempts to unilaterally reap its alleged benefits, which consumed so much trial time, fail utterly. All claims to reimbursement of monies based on the agreement are therefore denied.
Practice Book § 25-2A. Premarital and Postnuptial Agreements "(a) If a party seeks enforcement of a premarital agreement or postnuptial agreement, he or she shall specifically demand the enforcement of that agreement, including its date, within the party’s claim for relief. The defendant shall file said claim for relief within sixty days of the return date unless otherwise permitted by the court."
Marianna also testified briefly to an oral agreement between the parties at the same time concerning their finances. Ben denied there was such an agreement. Whatever the truth of that claim, the Statute of Frauds prohibits any action on such a claim. See Connecticut General Statutes § 52-550(a) et seq.
Despite its lack of legal underpinnings, the parties’ written agreement has become one of the central supports, in Marianna’s view, of her entitlement to claims to more than half of the sizeable marital estate in her claims for relief. She claims reimbursement of considerable millions of funds she claims were squandered without her approval during the course of her subsequent marriage. It is the theory upon which she relied to turn the trial into a lengthy ultimately failed attempt at a detailed financial accounting of a twenty-one-year marriage. It is a theory which is simply not legally cognizable, but one which Marianna was completely unable to relinquish. The court finds it speaks to her almost pathological inability to compromise, to rethink her own strongly held but illogical and ultimately futile legal positions. It also demonstrates an obsessive need for full and exclusive control in her marriage over joint finances, despite the parties’ considerable financial good fortune and affluent lifestyle.
Despite the lack of legal support for her claims, the court permitted Marianna great leeway to fully litigate these claims and present such evidence, exhibits and experts as she was able to marshal in support of them. Without going into each category of claims based on the edifice she attempted to erect on legal quicksand, she listed for each year of the marriage the costs of vacations and trips they went on, which she enjoyed with the family. She seeks reimbursement for them as she has now concluded that they were not sufficiently educational or culturally appropriate. She testified, without any awareness of its import, to the fact that she asked her husband on multiple occasions that the vacations should include just "the family and their children." It is clear she resented the presence of her stepchildren, not appreciating that for Ben, his family consisted of her and all five of his children, not just the three children to whom she gave birth. There were also inexplicable claims for reimbursement of the costs of the membership in an exclusive country club for which she possessed years of receipts, even though she used the club, as well as the children, right through the time of the dissolution and this trial.
The defendant filed motions in limine to address these legal issues prior to the commencement of the actual trial which the court denied.
Much trial time was also spent on discovery and claims concerning the educational accounts established for each of the children and the two oldest children from Ben’s first marriage. Again, illogically, despite the wealth this couple had accumulated through the course of their marriage, Marianna testified she did not believe the children should be entitled to such largess and such a generous life style. Some of the accounts were established in her name, she claims without her knowledge. The court cannot credit this testimony, given her obsessive need for many years to document the events in her marriage and to retain even small scraps of documentary evidence for many years, even before there was any concern about dissolution of her marriage. She demanded an accounting of all of these funds multiple times, which motions the court denied on at least four occasions.
The court finds this is yet another contradictory claim, as their children were permitted to grow up in two separate homes, each worth more than $1,000,000, enjoy the benefits of an affluent lifestyle, utilize the benefit of tutors to support their education and attend private schools, all costs for which no reimbursement is sought.
Discovery concerning all the accounts was available to her as well as her open access to the accounts established in her own name. She had ample opportunity to prepare and review any accounting she herself chose to make but did not do so.
Marianna sought to bolster her own, self-contradicting and ever changing testimony about the total of her reimbursement claims with an accounting firm she had retained and two of whose principals testified. The firm of Blum Shapiro, based on the information Marianna provided, tried to put together a summary of what these claimed reimbursement sums would now be worth, had they been invested in a certain manner. Ultimately, the testimony was of no assistance to the court and no weight can be given to it. First, there exists no cognizable legal basis for the claims, second, there was no factual predicate provided for how Marianna would likely have invested these funds and last, no calculations reflecting any tax impact on dividends and other disbursements included in the totals calculated. Marianna’s amounts and totals were constantly changing as were thus the expert’s conclusions, based solely on her statements. Last, but not least, the expert could not provide a generally recognized or accepted forensic procedure for evaluating such claims.
b.) Marianna’s Status as a Battered Spouse
The court has detailed the one unfortunate event where Marianna was pushed and injured when she tripped and fell. The court finds from the credible evidence that there have been no incidents of physical violence in the parties’ present marriage. There was no pattern of abusive conduct. Despite Marianna’s self-justifying and skewed interpretation of events in her life, while Marianna testified to her years of counseling concerning domestic abuse, no financial claims for reimbursement for those sessions were made.
Marianna next claims that she was subject to verbal abuse and criticisms by Ben. In that respect, and given some of the evidence of vituperative e-mails she sent to Ben and to third parties, the court finds that Marianna "gave as good as she got" in terms of verbal abuse. Often, she appears to have been the instigator and aggressor when something displeased her. There were threats she made to Ben about ruining his business reputation. There was even reference to an interview with the New York Times, while this dissolution action was pending, claiming coercive control in her life by Ben.
See for example exhibits WW, XX, YY, ZZ. And X, even disparaging her paramour in an e-mail directly to him.
Ben testified that there were times when Marianna physically attacked him during the second marriage with slaps and punches. She scratched his face including his nose. Once she attacked him while they were driving and he had to pull over to the side of the road. These reports, the court finds, are consistent with the anger and hostility she regularly demonstrated toward Ben. Her demeanor and conduct during the trial lent credibility and support to his claims.
Next, she cites coercive financial control, a claim which is simply not credible. She cites some minimal incidents; once he became enraged about her purchase of orthopedic shoes for one of the children for $50, and then many years later about purchases he interpreted as for her boyfriend. She went to great pains to explain why she made those purchases and how she was reimbursed. She had access to funds without interference throughout the course of the marriage, her own credit cards as well as her own considerable separate funds. There was a great deal of testimony about how many hundreds of thousands of dollars were spent on luxury handbags, as well as antiques and other upscale home furnishing items which she apparently from time to time traded and sold. These are hardly facts which support a claim of coercive financial control.
Ben testified that he did not closely monitor her accounts or her spending during the course of the marriage and that she had unfettered access to their joint funds, never mind her own considerable separate assets. He did provide details about the extensive level of her monthly spending at the trial, which evidence the court credits.
Her last claim about withholding of sex is premised on the fact that, after a few years together, the parties had separate bedrooms. The need for separate bedrooms, the court finds, is a further example of Marianna’s inability to adjust her conduct to the expectations of others. Ben had to be up early to get to work in New York City on time, often rising by 5 a.m. Marianna did not like to go to bed early; she persisted in keeping the television playing in the bedroom so that Ben was unable to sleep. When he complained, he testified "she stated too bad, the TV is in here, go sleep somewhere else." This comment, completely missing the point and the need to consider some way in which to accommodate Ben’s schedule, sounds in character with Marianna as she appeared and behaved in court on a regular basis. The court finds Ben’s report credible. He also stated that later on they were in a room together again, but that when Marianna had something she wanted to discuss with him, she would wake him at any time during the nighttime. So ultimately he solved the problem by having his own bedroom where he could better control his sleeping environment. While Marianna relies on the fact of separate bedrooms to claim that her marriage broke down after only a few years, the court notes that it is not the physical location of bedrooms, but rather the existence of a couples’ intimate relations which are at issue. There was no credible evidence as to the absence of an intimate relationship between the parties during this time. In fact, Marianna herself often confirmed that this was so. The court does not credit Marianna’s complaint about the withholding of sex as a part of a pattern of coercive abusive control exercised by Ben over her.
Testimony of October 3, 2017, see transcript, at page 21, lines 22 and 23.
Transcript of October 3, 2017, page 22.
On the issue of her status as a battered spouse, Marianna retained the services of an expert, Dr. Evan Stark. As with her financial experts, his opinion was ultimately of no assistance to the court for a number of reasons. His only source of information was Marianna and to some extent, the two oldest children of the parties. Nothing was confirmed with third parties or tested in any manner. His testimony on cross examination clearly revealed the extent of his confirmation bias, finding that Marianna was a battered spouse very quickly into their first interview. He also relied on factual information provided to him by Marianna, which was a significant variance to her testimony at trial, including his recitation of the event in 1993 as including Ben throwing Marianna to the ground, holding her there and trying to suffocate her. There were more such opinions based on facts not in evidence, such as an alleged incident in London or that, based on the police report the expert read, that in January 2010 Ben had strangled his wife at the marital home. He reported hair pulling and kicking, none of which was ever testified to by Marianna in this trial. The expert’s testimony was neither coherent nor focused. Ultimately, the court finds that Dr. Stark’s opinions were not reliable or credible, based on his bias and his lack of access to accurate facts and supporting information. Any claims for payment of his fees by the plaintiff are hereby denied.
c.) The Dissipation of Marital Assets Claim
An alternate theory for the efforts to support a full marital accounting and recoupment of funds was Marianna’s claim that Ben had dissipated marital assets. In Gershman v. Gershman, 286 Conn. 341, 346, 350-51, 943 A.2d 1091 (2008), the Connecticut Supreme Court was faced with the question of "what, as a matter of law, constitutes dissipation in the context of a marital dissolution proceeding." The court concluded: "[A]t a minimum, dissipation in the marital dissolution context requires financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage." None of the categories of expenditures Marianna claimed fit into that definition; not the court ordered and required alimony and child support payments for Ben’s first family, not the establishment of college accounts for the children of this marriage or his first marriage, not country club membership they all enjoyed nor even the travel and vacations in which the whole family participated.
There are also additional requirements set forth in both Gershman and Finan v. Finan, 287 Conn. 491, 507-08, 949 A.2d 468 (2008). They are that the dissipation took place in contemplation of divorce or separation or while the marriage is in serious jeopardy. The court has found there is no credible claim that the marriage was broken down or in serious jeopardy before the first dissolution action was filed. Next, the parties reconciled during November and December 2011.
Claims have been advanced for the costs of an apartment Ben rented after the parties separated and the excess cash Marianna claims he spent post separation in 2016. Marianna’s second financial expert testified to the amounts that were used for cash by Ben during this time, based solely on the information and checks Marianna herself provided to her and not an independent review of both parties’ spending habits. As to the allegations that the cash expenditures were inappropriate, Ben had a reasonable response. He credibly explained that, instead of using his credit card, given Marianna’s intrusive behavior of calling restaurants she saw listed on his account and demanding to know who was with him, he began to use cash to avoid her harassment. The cash amounts were not significantly greater than what Marianna herself spent, as detailed on her various financial affidavits. When he moved out of the marital residence, alternative housing was reasonably required for him. Given considerable assets of the parties and their lifestyle, the court finds that neither of these two categories of expenditures were dissipation of marital assets for an inappropriate purpose.
Marianna also spent considerable court time on Ben’s medical insurance and the expense of her continuation (COBRA) coverage through the Credit Suisse plan rather than using the less expensive plan to which Ben became entitled. She attempted to prove that there was some nefarious motive behind Ben’s use of his current plan. The court remains unpersuaded and the proof and understanding about how the insurance policies provide such coverage lacking. The three-year term under the Credit Suisse benefit will soon come to an end and the remaining health insurance pursuant to which the children are covered will become her source of continuing (COBRA) coverage for the statutory term of three years.
4. The Marital Estate and Present Situation of the Parties
Ben’s financial career has been very successful, and, in addition to funding an affluent lifestyle for his family for over twenty-one years, he believes there is now a marital estate of approximately $48,000,000 as of the last financial affidavits filed with the court in February 2018. Marianna believes, by taking lesser values for those assets in her control, that the estate is worth $45,000,000. Ben is now sixty-five years of age and Marianna is sixty. Ben is in good health and has not been gainfully employed since his position at Point72 Asset Management ended in December 2015. The court finds, from his detailed testimony that Ben had expected to be appointed to various boards for financial remuneration as he concluded his career. He has been unable to do so, despite considerable efforts toward accomplishing that goal. Primarily, he believes that this is due to that fact that he was a senior executive at his last place of employment and that there has been a determination of legal violations committed by the company. While he had no involvement in the actions which led to the finding, because of his senior role, it has cast a significant pall on his chances for board of director service, given the current financial industry regulatory climate. The court concludes that his ability to earn future income from new employment or board service is not realistic. The court finds Ben’s ability to acquire future assets, apart from income generated by the substantial marital assets and any future investment made possible by them, is non-existent.
Marianna testified that she believed Ben could still secure gainful employment. She implied that he voluntarily quit his employment to deny her alimony. The court does not agree. First, it is reasonable, after such a long and successful career, for someone of his age to retire when there is a change in top management, which did not wish to include "the old guard," including Ben. Ben, as he reported, was the oldest member of senior management at the time his employment ended. The court finds, from the testimony, that Ben did not elect voluntarily to sever his employment relationship, but that it was clear over the course of 2015 and in the fall of that year, that he was being forced out of his prior roles. Marianna’s lengthy attempts at discovery and claims about his alleged machinations to terminate his employment so that she should not receive her fair share of the money available were not credible. The court cannot credit her theories about how much of Ben’s conduct was focused on denying her a full and fair opportunity to have all the funds she could possibly claim. She did not present any evidence, other than supposition, on these topics.
Turning to Marianna, she continues to have some health issues around her autoimmune disorder and hypertension and heart irregularities brought about in part by the stress of the litigation in which she has now been involved for many years. It is not realistic to expect her to return to any employment since she has not been involved in her chosen career since before 1997. Generation of separate income by her or acquisition of future assets, apart from the wise use of the marital estate, puts her in the same position as her husband. Fortunately, for both parties, those assets are varied, income producing and considerable. They are more than adequate to provide a very comfortable lifestyle for both parties.
The marital estate consists of bank accounts and investments, real and personal property, retirement accounts and funds set aside for the children of the parties in what are known as 529 accounts. Each of the parties claims a fifty-fifty division of their assets, their significant differences in claims relate to the additional sums each believes should be credited to them in addition to their claimed fifty (50%) per cent share. Marianna believes she should, in addition to periodic alimony, receive more than sixty-five (65%) per cent share of the assets, to compensate her for what she claims to have suffered in this marriage, as well as legal fees and sanctions. Her difficulty is that the court did not find her claims credible. Ben claims a fifty-five (55%) percent share for himself, based on adjustments for legal fees, sanctions, violations of the automatic orders and the like.
There are some assets which appear on Marianna’s schedules which are not listed in Ben’s schedules. She lists those as ones for which the value is yet to be determined The time for proof and determination of value has ended and the court finds that there are no EMA Partners Fund accounts, nor any value associated either with First Rain or the Las Cruces investment. The court accepts Ben’s testimony concerning these two failed investments. There is no value which can be secured from the country club membership, as the court credits Ben’s testimony in that regard, despite the considerable upfront payment to join the club years ago. There is no separate Credit Suisse retirement plan or account. Marianna seeks expert fees, which the court has addressed and denied. She believes that Ben should pay the taxes for the children’s accounts, her medical insurance costs and her unreimbursed medical expenses. She seeks frequent flier miles. She believes all the children’s accounts should be transferred to her and that certain life insurance should be maintained and the defendant should pay all premiums.
She seeks reimbursement for income taxes Ben paid to the State of New York in 2016 and 2017. The accountant for the parties credibly explained the requirements of New York City and State income tax law and the court finds that those payments were required to be made, given Ben’s personal living arrangements. Marianna also argues that Ben could have continued to reside in Connecticut and not pay those taxes. But Ben is entitled, post-separation, to lead the life he wishes.
Ben argues that Marianna has made excessive estimated tax payments in 2017 over those required in 2016 and at a time when her income was not expected to rise substantially. The documentary evidence establishes and the court finds that her estimated payments from joint accounts above what had been paid in 2016 were $259,174. Ben seeks an adjustment for these excess fees. He also seeks a credit for capital gains taxes in the amount of $250,000 due but not yet paid on his separate investments.
1.) Bank Accounts, Securities/Brokerage Accounts, Hedge Funds, Retirement Accounts and Investments
The significant investment and bank account holdings of the parties are listed variously on their respective financial affidavits. They comprise the bulk of the marital assets and generate income for the parties. Each of the parties has individual accounts in each of these categories. Those in Marianna’s name are listed in Schedule A* attached hereto and made a part hereof. The total value of Marianna’s separate accounts $1,810,974. Those in Ben’s name are listed in Schedule B* and have a total value of $10,304,493. The joint assets are listed on Schedule C* and total $29,416,043.
The court has carefully reviewed and compared the assets and accounts listed on each of the parties’ financial affidavits and schedules and has taken the most recent values available to it, which are of February 2018.*Editor’s Note: The mentioned Schedule A, pg. 28, par. 2; pg. 53, par. 1, Schedule B, pg. 28, par. 2; pg. 53, par. 2 and Schedule C, pg. 28, par. 2, has not been reproduced.
2.) The Marital Residence in Greenwich, Connecticut
The residence was the subject of two appraisals and both appraisers testified. The court finds, from that evidence, and Mr. Byington’s testimony, that the residence has a fair market value of $4,230,000 dollars. Marianna’s appraiser set the value at less, but made some significant errors in his appraisal as to the number of bedrooms and bathrooms in the guest house and the comparables chosen for valuation of that additional adjacent dwelling. Mr. Jackson admitted his errors freely and offered to correct them. Nonetheless, his opinion as to value $3,500,000 was not reliable, based on the errors in the appraisal that he presented. It is not accepted by the court. The court establishes the value of the residence as $4,230,000.
3.) Real Property Located in Greece
The plaintiff’s country of origin is Greece and the parties and Marianna individually own real estate on Serifos Island, Cyclades, Greece. Marianna claims them in this action and Ben proposes they be her sole and separate property. There is a significant discrepancy as to their value, however. No expert was called to testify about their value. Real property owners are entitled to state their opinions about real estate they own. "It is well settled that an owner of property is competent to testify as to its market value." Watson v. Watson, 20 Conn.App. 551, 568 A.2d 1044 (2006). See also Misisco v. La Maita, 150 Conn. 680, 684, 192 A.2d 891 (1963). Ratner v. Willametz, 9 Conn.App. 565, 582, 520 A.2d 621 (1987). An owner can base his opinion on his familiarity with the value of similar properties in the same general area as his own. Marianna presently claims they are worth a total of $215,000, given Greece’s financial difficulties. Ben had a more nuanced view, and presented testimony about the martial funds invested in these properties to purchase and maintain them and the improving financial situation in Greece. He believes that the properties are worth $500,000.
In reviewing the evidence presented, the court notes that the plaintiff’s values for the properties have fluctuated, as reflected in her financial affidavits and her testimony. She stated their value was approximately $260,000 at the time of the marriage. Ben and she both noted that additional properties were purchased from marital funds in 2005 for $360,000. Ben understood the property to be titled in joint names and only learned, to his consternation, during the course of the trial that Marianna took title in her sole name. Her affidavit of May 2014, reflects a total value of $450,000. The court finds, from the credible evidence, that an additional $700,000 was spent on the properties during the course of the marriage, for a total marital investment of $960,000. As adjusted for the currency fluctuations, the court finds a value of $500,000 for the joint property to be a reasonable determination of the value of these properties.
The court includes the property meant to be titled in joint names, but now held in Marianna’s name solely, as it was purchased with joint funds.
4.) Educational Accounts
Ben asks that they each utilize the UTMA accounts for which each is trustee to pay for undergraduate and graduate school expenses, if any, for their two children who are under the age of twenty-one. Marianna, consistent with her demonstrated control needs, asks that all accounts be transferred into her name for the benefit of the children and she make payments as required. Much testimony and documentary evidence was presented concerning her claims about these accounts which she believes were excessively funded out of joint marital assets to which she did not agree. The court has already found that she was not legally entitled to such veto power. Each of the parties is trustee for the children on such separate accounts. They each remain the parents of these adult children. There is no legal reason for the funds dedicated for the children’s education to be transferred to the accounts in Marianna’s name for their benefit.
5.) Personal Property
(a) Automobiles
Each of the parties during the pendency of the action has purchased a new BMW automobile of equal value, at $52,000 each. In addition, in the wife’s possession are three vehicles of lesser value, which are used variously by her and the children. While their total value Ben calculates is $47,500 dollars, Marianna values them at $35,000 dollars. The court accepts Marianna’s value, given the age and use of these vehicles.
(b) Wine
There is wine located in the marital residence which Ben values at $30,000 dollars and Marianna values at $10,000 dollars, adding that there is $15,000 dollars of wine in Ben’s possession at his present residence. Ben claims no value for any wine at his residence. The court accepts Ben’s value and establishes the value of the wine in Marianna’s home as worth $30,000.
(c) Jewelry
The parties own considerable jewelry of some value. There are discrepancies in the values stated. Ben values the jewelry in Marianna’s possession as worth $500,000 dollars and she values it as worth $414,700 dollars. Marianna values the jewelry in Ben’s possession as worth $85,000 dollars. Ben values his jewelry as worth $37,500 dollars. The court accepts Marianna’s value of the jewelry in her possession of $414,700 dollars, and that in Ben’s possession as worth $37,500. Ben seeks an award of jewelry from those items in Marianna’s possession for a total value of $148,000, which the court accepts as a reasonable value of those claimed and listed items now in her possession.
(4) Other Personal Property and Household Furnishings
There was much testimony as to luxury handbags and other items Marianna purchased. The court finds the value of the luxury handbags and furs to be $250,000. In terms of the furnishings and art left in the marital residence that is some eight thousand square feet in size, Ben values them $400,000 dollars and Marianna $135,000 dollars. Ben has some martial furnishings in his possession and Ben’s affidavit states that those items are $15,000 dollars while Marianna states that they are worth $85,000 dollars. With respect to the furnishings in the home, Marianna testified during the course of the trial with pride about her success in purchasing items for the home and her interior decorating skills which she put to use for herself and for others. Given the size of the marital residence, the objects d’art and other items which the court heard some testimony, the court values those furnishings at $400,000 dollars. The court values those household items in Ben’s hands at $15,000 dollars. He seeks additional items in the marital home, which were not valued by him or Marianna.
5. Outstanding Pendente Lite Motions
There are a significant number of outstanding motions which the court had consolidated with the trial for efficient presentation of the evidence and which will impact any orders made. The resolution of those motions must, of necessity, be accomplished prior to the entry of such orders. Some claimed by the plaintiff as part of the motions requiring rulings have already been resolved through court orders, as will appear below.
a.) Defendant’s Motions #220, #221 dated January 6, 2016, January 8, 2016 and Plaintiff’s Motion #222, dated January 6, 2016, Motion #223, Motion #271, Violation of the Automatic Orders, Restoration of Funds and Legal Fees
While these are not the same motions, they are all connected to the private banking joint accounts the parties had with J.P. Morgan, which included bank accounts, investments and trading accounts and the subsequent actions taken by the parties when those accounts were frozen by the bank. Historically and during the pendency of the action until December 15, 2015, each of the parties had access to these joint accounts. Ben traded regularly from the investment accounts as well. On October 5, 2015, Marianna e-mailed Ben to tell him that she had informed the bank that two signatures for any transaction on these accounts would be required before the bank was empowered to act. Patiently on October 15, 2015, an account executive, Jeremy Geller, explained in a letter that the banking agreement for the joint accounts they had did not permit Marianna’s new conditions for their use. He invited them to set up separate accounts or take other appropriate action. On December 1, 2015, Mr. Geller indicated he had had discussions with the plaintiff and her counsel and it appeared there was still no agreement to handle these accounts pursuant to the banking agreement. He informed them, that if nothing further happened, the bank would freeze the accounts or otherwise restrict access to them on or before December 15, 2015.
These written communications are all contained in defendant’s exhibit MMM (M3).
Before going into the subsequent actions each party took, the court finds that during the subsequent years this action has been pending, Marianna has pursued an aggressive discovery approach to these issues, including depositions and live testimony of Mr. Geller at trial in order to demonstrate that the freezing of these accounts was a scheme on Ben’s part to deprive her of access to these funds as she had previously. She vociferously maintains that, because Ben and Mr. Geller were acquainted, this bank action was engineered by the two of them.
The court finds, from the credible evidence including Mr. Geller’s testimony, that her accusations have not been proven and in fact, the course of conduct and the documentary evidence demonstrates that it is she, in her extraordinary efforts to control the litigation, its timing and, the parties’ finances, who started the ball rolling bringing about the freeze of these joint accounts. The issues concerning the handling of the accounts freeze were not resolved until September 21, 2016, when the parties were able to file a stipulation concerning them. Outstanding to be decided remained fees, costs and sanctions for the claimed violation of the automatic orders.
Next, as plaintiff no longer had access to these joint accounts, instead of using her own funds and credit cards to which she had access, she accessed a joint J.P. Morgan account, Charles Schwab accounts and a joint Well Fargo account and began systematically to transfer funds from these joint accounts into her sole accounts and spend the amounts primarily, she testified, on ordinary household expenses. Over the course of time, she removed over $590,000 from these accounts. Another $56,600 was transferred to an IRA and another sole account. Defendant alleges that her conduct is in violation of the automatic orders entered at the start of every dissolution matter. The court finds that her conduct did violate those orders.
The detailed amount of $590,770 is set forth in the transfers documented in detail in Exhibit OOO (O3), in addition to the separate transfers of $56,600.
Plaintiff also filed a related motion, Motion #222, concerning Defendant’s alleged violation of the automatic orders by no longer directly depositing his pay check and final distributions from Point72 after December 15, 2015, into the J.P. Morgan joint accounts which were frozen. While his actions were a violation of the orders, in view of the freeze resulting from Marianna’s own actions, the court concludes it would have made no sense to continue to deposit into accounts to which neither of them had access until months later.
The court finds, from the credible evidence, that the plaintiff herself brought about the freeze on the parties’ J.P. Morgan accounts. The court further finds, having ordered her to pay all legal fees and costs for the deposition of Jeremy Geller, and having left the allocation of those amounts to this decision, that plaintiff is responsible for the entire order previously entered without any contribution from the defendant.
Next, the court must address the claims made by the parties concerning these pendente lite events. First, in his motion the defendant claims that the funds removed from the Wells Fargo account and placed into the plaintiff’s sole accounts must be restored to him. Plaintiff claims in her motion that the funds Ben placed into separate accounts after receiving his last paycheck and other distributions from Point72 also must be restored to her. Each claims significant legal fees.
Beginning with the restoration of the funds that the plaintiff removed from joint accounts to her sole account, the difficulty is that when the J.P. Morgan accounts were frozen, Marianna no longer had access to the usual source of funds for her monthly living expenses. Her affidavits filed with this court over time demonstrate monthly expenses of somewhere between $70,000 to over $90,000 a month. If the court calculates the total of such monthly expenditures to the end of September 2016, that total is in excess of the amounts removed in violation of the automatic orders. The plaintiff had no significant income of her own and had an established pattern of spending these amounts. While it is true she had access to her separate funds, she jealously hoarded those and they exist now for equitable distribution. To restore all those funds to the defendant, would then involve the court in an accounting of what took place with his funds, previously joint, that were then deposited elsewhere. The court has no detailed information now available to it concerning the funds the defendant then began to deposit from his earnings into separate accounts. To now award him the total of the funds removed by Marianna would be to give him a windfall without taking his actions into depositing his funds into a separate rather than a joint account beginning in December 2015.
At present, at the close of the trial, all of the joint and separate assets of the parties were accounted for. While their values will have fluctuated some in the meantime, the parties have an estate to be divided, whether from sole or separate accounts and joint assets of approximately $48,000,000. The court declines to order restoration of the removed funds to the defendant and to the plaintiff those funds that were then deposited by Ben in separate accounts of his. Both find themselves in the position of having violated the automatic orders. The court will address the issue of legal fees in its orders of equitable distribution below.
Motion #220 has been earlier partly resolved by the stipulation dated September 21, 2016 and filed with the court. Motion #221 is denied as to the restoration of the funds and as to a finding of contempt, based on the findings above. The court does find the plaintiff’s obsessive need to control the litigation, and control the assets in the marriage brought about the freeze which resulted in this conduct. She has only herself to blame for the ensuing fallout.
Motion #223 is directed towards the defendant’s conduct. With respect to the re-meditative action sought, that has occurred through the stipulation filed with the court on September 21, 2016. Fees and costs will be addressed more globally later on in this decision. Plaintiff also seeks a finding of contempt, which the court denies for the reasons above stated.
In Motion #271 the plaintiff claims a violation of the automatic orders and addressed matters that were in part addressed by the stipulation dated September 21, 2016 and in part by this memorandum of decision in terms of equitable division of the parties’ assets. Just as the court declines to require the plaintiff to restore to the defendant the funds she removed from the joint Wells Fargo and other accounts in early 2016 as detailed above, so the court declines to order the defendant to do the same with respect to those funds deposited into separate accounts after the freeze of the J.P. Morgan accounts. The court finds and concludes that the sequelae of the plaintiff’s unthinking conduct in initiating the events which led to the freeze led to these further financial consequences. No contempt is found, no sanctions imposed nor legal fees awarded. The motion is denied to the extent not already covered by the stipulation referenced and this court’s other findings.
b.) The Life Insurance Claims, Motions #249, and #252, Motion #270, Life Insurance and College Expenses, Motion #350 and Objection
The cross motions concern the payment of an insurance policy on the defendant’s life with a death benefit for $5,000,000 that was placed in an irrevocable insurance trust in 2001 with the plaintiff as trustee. The fifteen-year level premium was $8,425 annually. Ben credibly testified during the trial that the plan had been to secure a different policy at the end of the term or to let it lapse as the needs of the parties for that level of security when their three children were largely grown and their total estate had significantly increased would change. Marianna’s assertions are not too different; although she contests that the plan was never to let the insurance lapse. When the annual premium increased to $39,725 in 2016 with yearly increases thereafter, it was the plaintiff’s claim that, while she was agreeable to a replacement policy, Ben did not secure one in time and that the 2016 premium had to be paid. The evidence demonstrates that a ten-year policy on Ben’s life with a level annual premium was available to him in November 2015, for the cost of 17,010. The court does not credit plaintiff’s claim that she was informed too late to make the substitution. To the court’s knowledge, such substitution has still not taken place and the higher amounts continue to be paid.
In her motion, she avers that the agreement was to replace the original policy when the 15-year term lapsed, which the court takes as a judicial admission on her part.
See exhibit TTT (T3).
Each party is seeking sanctions and legal fees; Ben for the fact that Marianna has not seen fit to secure a more cost-effective policy and Marianna for the claimed violation of the automatic orders. The court finds, from the credible evidence that the planned course of action, prior to the commencement of the dissolution proceedings, was to secure a substitute policy at the end of the 15-year term in 2016. The court finds that it would have been an unobjectionable course of conduct for the new policy with $17,010 dollars in annual premiums to have been paid out of joint funds in 2016, 2017 and 2018. Motion #350 raises these claims for the year 2017. No claims were asserted for the 2018 premium by motion. Nonetheless, the court addresses the total existing claim for all years in connection with these motions. One-half of all excess amounts paid in each of these years are to be repaid to the defendant by the plaintiff. In 2016, the evidence demonstrates that one-half of the difference between the two policies is $11,357.50 dollars. So at a minimum for these past three years of payments, a total $34,072.50 is due from the plaintiff to the defendant. The court therefore grants Motion #249, Motion #350 and denies Motion #252. The issue of fees will be addressed below more globally.
That portion of Motion #270 which seeks an order directing the defendant to pay the $39,725 life insurance premium is denied, for the reasons set forth above. As to the smaller Mass. Mutual policy with an annual cost of $3,402.63, the court declines to order it paid by the defendant. All of these policies inure to the plaintiff’s benefit.
In the last portion of motion #270, plaintiff seeks an order for Theodora’s college expenses which requires further clarification. There were a number of educational accounts established for each of the children. In Theodora’s case, there was a UTMA account as well as a joint account with the plaintiff which consisted in part of other funds in what is known as a 529 account. The UTMA account had approximately $79,000 and the account in Marianna’s name together with Theodora a total of $23,270, more than adequate to pay her expenses and all controlled by the plaintiff. Marianna removed some funds from the account and placed them in Alex’s and Nicholas’s accounts and paid for the educational expenses from joint marital funds, instead of using the appropriate accounts. The court cannot credit the plaintiff’s testimony about why these accounts were moved by her in the manner to which she testified. It is not logical, except as a method for gaining access to and controlling as many different accounts as possible. Motion #270 as to college expenses and fees is denied.
c. Motion #277, Motions #301, #305, #323 and #370 re Discovery Requests, Compliance, Sanctions and Fees
Plaintiff’s motion #277 dated June 13, 2016 concerns the plaintiff’s discovery requests and a claim for legal fees. The motion was granted in part for additional discovery by Judge Novack on 8/30/2016. The motion is now moot as, later in 2016 and early 2017, this court referred all outstanding discovery matters to a Discovery Special Master with certain conditions for further claims and a short deadline to assert those claims. At that time, in early 2017, the plaintiff was represented by other counsel or by herself and did not assert any additional claims. Only one matter was reserved and that was the deposition of Jeremy Geller which this court has dealt with. The motion is marked off as superseded by further court orders and is therefore moot.
The court has carefully reviewed the two transcripts of proceedings before Judge Novack before making these orders.
The remaining plaintiff’s motions sought discovery orders and relief and were referred to the Discovery Special Master by this court. No objections or further claims were raised in a timely manner as per this court’s order. Sanctions and legal fee claims are not appropriate as these matters are concluded. The motions are marked off as superseded by later court events.
Motion #323 seeks payment of all costs and expenses connected with the Discovery Special Master proceedings as well as Plaintiff’s counsel fees. The court, during the many hearings in this matter, finds that when the plaintiff was unable to locate and secure, by discovery or deposition or otherwise, the information her suspicions led her to claim, she remained unwilling to accept the negative evidence. She pursued an excessive discovery policy with many repeated similar motions and claims during the course of the trial, for which there was no evidentiary support. She should, at the very least, be prepared to pay for her continued intransigent discovery conduct herself. This motion is denied. No legal fees are awarded to her for this motion.
d.) Motion #290 re Home Equity Line of Credit (HELOC)
This plaintiff’s motion reflects an order entered by Judge Tindill on September 2016, and the stipulation signed by the parties on that date. The court dismisses this motion as already previously addressed by the court.
e.) Motion #314 for Legal Fees and Sanctions for Failure to Comply with Trial Management Orders, Objection #314.50, Motion #347 dated March 26, 2017, Plaintiff’s Objection to same and Cross Legal Fees claims as well as claims made at trial, Motion #385, motion #388
Defendant’s motion #314 seeks legal fees and sanctions for plaintiff’s failure to comply with this court’s trial management orders and the timely exchange of exhibits and other documents. Motion #314.50 is plaintiff’s response to same, basically stating the plaintiff’s father’s illness as a reason for the failure to comply. The facts, as they have unfolded over time, are set forth in this discussion. Shortly before the time for compliance in 2016, previous counsel for the plaintiff withdrew his appearance in the matter. It became apparent over the course of time and during testimony at trial that the plaintiff’s ability to supply her exhibits in accordance with court rules and standing orders exhibits was non-existent, as she had wholly failed to organize them in any meaningful manner.
It is without contest that in February and March of 2017 she hired others to assist her in organizing her excessively voluminous, frequently duplicative and not always relevant proposed exhibits. That effort resulted in further delay and expense, as even with that assistance, the exhibits remained in disarray and those individuals she had hired were let go, as they failed to perform in the manner the plaintiff sought.
In November 2016, this court held an evidentiary hearing on a motion for contempt for failure to comply with the production of proposed exhibits, even while the defendant had fully complied with such required disclosure. At that point, for the first time, Marianna raised the issue of her father’s health and sought a continuance of the trial. The court, in view of the delays and continued hearings on related matters, consolidated the motion with the trial.
During the course of the trial, the full extent of disorganization of the exhibits, plaintiff’s inability and failure to label and offer them in proper form was revealed. The record of the many court hearings required to examine, correct and secure all of the exhibits in proper form, as well as the many court orders required are part of the record of this case and speak loudly to Marianna’s inability to comply. This court’s most recent order concerning trial exhibits, issued on September 11, 2018, speaks directly to this issue. It reviews the history of plaintiff and her counsel’s failure to abide by multiple orders made during the course of this lengthy trial and in continuing attempts by defendant and the court to clarify the exhibits and to secure accurate and properly labeled exhibits for the record.
Claims for legal fees concerning these issues have been made by defendant multiple times since 2016 and during the course of this trial. They exceed, including those in the claims for relief at trial, the sum of $500,000. Given the facts found above and as set forth in the court’s various and repeated trial orders concerning the plaintiff’s electronic exhibits, the court finds that Marianna was not in a position to comply with the standing orders in November 2016. She was wholly unprepared to present her case at that time, despite trial dates having been assigned by this court. She took no affirmative steps to address her legal difficulties concerning these issues herself. Her purported submissions were so out of the norm and so unintelligible that defendant’s counsel spent many futile hours in trial preparation attempting to understand what he had received. Next, this trial was again delayed due to her father’s deteriorating health.
Nonetheless, the court now finds that the plaintiff was in contempt of the clear and unambiguous trial management order in 2016 and presented no plausible excuse for the failure to organize her exhibits in any meaningful manner. At that point in time, in November 2016, there was not yet an issue concerning her father’s health to which she subsequently drew the court’s attention. She already had months to prepare to comply before the trial management order entered. In addition, the trial had already earlier once begun and been mistried after some days.
The ultimate legal reckoning for her failure was postponed by the various continuances necessitated by her father’s illness and passing and her own health issues. Those subsequent events cannot, because of their timing, provide an excuse for why she should not now be held to account for her failure to prepare for a trial, which had long been scheduled and which had already once begun and been mistried.
Defendant’s claim for legal fees for the failure to provide that which had been ordered not once, but multiple times throughout 2017 and 2018 and up to and including the present time deserves recompense. The claims for legal fees are substantial and many hours were spent by defendant’s counsel in addressing the total disorganization of the electronic exhibits. Nonetheless, the court awards a far lesser sum than the many thousands claimed, considering the totality of the issues in this case and its other orders which follow. The court has received affidavits detailing the fees, the costs per hour of time for defendant’s counsel from time to time for various individual motions and responses to motions filed in the period between the close of the trial on April 27, 2018, and its reopening of the evidentiary portion of the trial for purposes of corrected and revised plaintiff’s exhibits on August 17, 2018. The court finds that the total sum of $65,000 in legal fees is appropriate under all the circumstances. The court finds that the plaintiff was in contempt of the trial management order for the exchange of exhibits in 2016. The order was clear and unambiguous and the plaintiff was aware in advance that she could not comply. The court sanctions her in the amount of $5,000. Motion #314 and #347 is granted. Motion #314.5 is denied in full.
This reflects approximately 141 hours of time, at the rate of $675 an hour for 31 hours for Attorney Broder’s time and $400 an hour for 110 hours for Attorney DeMattei’s time. Attorney DeMattei was primarily responsible for the exhibit reconciliation and work. The court finds that these fees are reasonable and customary for attorneys with their individual experience and expertise in matrimonial matters. These fees approach the full extent of the time and fee commitment for the work performed.
Motion #385 is defendant’s motion for contempt and legal fees for the plaintiff’s failure to organize her exhibits as ordered by the court early on in the trial. The court had directed her to categorize them in four schedules so that the claims could then been made and supported by documents in summary fashion. As the trial developed, the plaintiff was wholly unable to do so. The court, given due process concerns about plaintiff’s ability to present her case, acquiesced to the procedure adopted by the plaintiff for the organization of her exhibits by year, different from what the court had ordered. The trial went forward on that basis, and although the court did not formally rule, the conduct of the trial proves that a practical ruling was made. The court excused her behavior and the form in which she presented her exhibits. No fees and sanctions are due for her failure to comply. The motion is denied.
Defendant’s Motion #362 is not now claimed by Defendant. Plaintiff claims her objection. These matters were dealt with a hearing held just prior to trial and are now moot.
Motion #388 dated August 4, 2017 concerns itself with the funds removed from the Wells Fargo account and other accounts during the period the freeze on the J.P. Morgan accounts was in place and for a year afterward. The court has already ruled on this claim, taking into account evidence which would not have been available on the date that motion was filed in 2016. It is that evidence this motion seeks to address. The court marks this motion off as it has been addressed, given the passage of time and the evidence in the rulings above.
f.) Defendant’s Motions for Sanctions, Contempt and Sanctions #361 and Objections
Motion #361 concerns the attempt to depose for the second time an individual with whom Ben had formed a romantic attachment in late 2015, as the court has previously found and to which he testified. The court has previously ruled upon the motion and Ben now moves for legal fees concerning what he labels as harassment. As this court has previously stated in addressing these motions, the court will address the many claims for legal fees other than those related to plaintiff’s electronic exhibits more globally when it makes its orders concerning the division of the parties’ assets.
g.) Matters now claimed by Plaintiff and dealt with during Pretrial Hearings
As has been demonstrated by the lengthy discussions and findings above concerning the pretrial motions claimed by counsel in this final hearing, the pretrial motion practice was extensive and in many cases, completely unnecessary and needlessly repetitive. Holding hearings on each and every motion would have consumed as much time as the trial ultimately did. Defendant filed an application for ex-parte injunction on June 1, 2017 concerning Plaintiff’s attempts to continue to try to secure discovery connected expenses she believed Ben paid for his girlfriend. That matter as well as Plaintiff’s application for an injunction were addressed at a hearing on July 23, 2017 and are both now completed. No fees are awarded to either party.
Motions #365 and #366 dated June 1, 2017 have already been addressed at various hearings and at trial, as the ongoing and frequent alleged claims for Ben’s failure to provide discovery concerning themselves with the timing of when statements were received and their production to the Plaintiff. They were either resolved or denied by the court and are now moot. These claims were de minimus, but somehow crucially important to plaintiff’s increasingly strident complaints about them. Her ability to see reason even with the objective facts about the timing of their production was non-existent.
The motions filed by the plaintiff for an accounting of UTMA and 529 accounts for the children’s funds have been denied a number of times by the court. The motion dated June 29, 2017 is denied again for clarity’s sake. An additional motion for an accounting dated September 17, 2017 has been denied and is now denied again. Much opportunity was available to the plaintiff to do her own homework and perform her own accounting, given the extensive discovery and the multitudinous documents with which she was provided and had in her possession. The same ruling is entered for Motions #377.51 and #377.52 dated July 3, 2017 and these motions are denied. Motion for contempt for violation of the automatic orders and request for temporary injunction dated July 7, 2017 was denied as was a motion for contempt dated July 21, 2017 re exhibits, as well as a request for fees and sanctions. Defendant’s motion for contempt dated August 2, 2017 was subsumed into the trial. A motion to amend the stipulation dated June 17, 2014 concerning the division of personal property, exclusive possession of the marital home was denied, as well as a motion for restraining order, all dated September 18, 2017 after the trial had commenced. Attorneys fees are addressed below, even though it is addressed in Section 5 of the stipulation as a claim that may be made. A motion dated September 18, 2017 for contempt for defendant’s claimed violation of the automatic orders is denied. A motion for sale of the marital residence dated October 15, 2017 is now subsumed into Plaintiff’s claims for relief in this trial and will be addressed below. The motion itself is marked off as duplicative of the plaintiff’s claims.
Two requests for leave to file motions are dated after the last hearing of August 17, 2018. The court hereby grants leave to file them and leave for the Plaintiff to respond. They are not foreclosed by this decision and may be heard in the postjudgment period. All other remaining motions not specifically addressed in these orders are subsumed within this decision and of no further force and effect.
ORDERS
1. The marriage of the parties is hereby dissolved on the grounds of irretrievable breakdown. A judgment of dissolution of the marriage enters.
2. Orders re Education Expenses for Adult Children
The court finds that, absent the dissolution and had the family remained intact, they would have contributed to the support of their children for undergraduate education, as they have to date. The court concludes that the terms of the statute, Connecticut General Statutes 46b-56c(e) are applicable to this case. There are UTMA accounts which have been established for the education of Alexander and Nicholas Cohen. The following is ordered:
a.) UTMA Accounts
Until such time as either Alexander or Nicholas turns twenty-one, funds in these accounts shall be used for their undergraduate expenses, as defined below. If there are any funds left in their UTMA accounts when they each reach the age of twenty-one, those funds will legally become their sole and separate funds. Each shall use the remainder of those accounts to pay for their own undergraduate expenses. When such are exhausted, Ben and Marianna’s obligation to pay such expenses from their own remaining funds held in their separate names shall be triggered. Educational expenses shall be defined as including room, board, tuition, fees, registration and all other customary fees and expenses, to also include travel to and from campus at the beginning and conclusion of each semester as well as any other semester breaks or holidays. The accounts shall be used to pay any taxes due on them.
b.) Order re Further Payments of Educational Expenses
In terms of the order of payments to be made, each parent shall use the UTMA accounts for the child first, and if there are insufficient funds for that purpose and after each child’s obligation, as set forth above, has been satisfied, each parent shall use their separate funds, including any 529 accounts and be responsible for the cost. The parties shall exchange bills and invoices for such college expenses, so that payments may be timely made. It is the court’s intention that, after the UTMA accounts are exhausted as set forth above, each share the cost of such remaining educational expenses and pay their one-half share. If and when the UTMA accounts are exhausted for these educational expenses and more are due, each shall be responsible for their one-half from their separate assets and the 529 accounts held in his or her name.
There are savings bonds in the names of all three children. Those who have attained the age of twenty-one are entitled to their own bonds and those shall be provided to them. The savings bonds for those under the age of twenty-one may be held by the defendant until such time as each child attains that age, at which point the adult child may elect what action should be taken with such property.
3. Health Insurance and Unreimbursed Medical Expenses for the Adult Children of this Marriage
Ben has agreed to maintain health insurance for the benefit of the children until they are no longer eligible. Each shall provide an annual statement to him regarding their student status and whether other health insurance is available to them. It is so ordered. The court recommends the parties share the costs of any unreimbursed medical expenses for adult children who remain eligible for such coverage.
4. Alimony
Marianna claims periodic alimony. Given the significant assets the parties have accumulated during the course of the marriage, and their ages and stations in life, as well as other applicable statutory criteria, the court declines to make such an award. No alimony is awarded to either party.
5. Health Insurance for Marianna
She is entitled to the statutory period of continuation coverage on Ben’s health insurance and shall receive same at her cost. There shall be no reimbursement for amounts she elected to pay on the Credit Suisse plan, and the court was not persuaded by her claims in that regard.
6. Life Insurance on Ben’s Life
Any future premiums are to be paid by Marianna if she wishes to continue such coverage.
7. Division of all Assets
The court has carefully considered all statutory criteria and case law in the equitable division of the parties’ assets. The court finds that the division set forth below is fair and equitable under all the circumstances and facts in this matter. The court will list the assets to be divided in its orders, aware that there will have been fluctuations in the current values of some of those assets since February 23, 2018, the last date when updated values were provided to the court. The methodology followed below allows for such fluctuations without major impact on the court’s calculations. The adjustment calculations made by the court are fixed and there shall not be further adjustment for such fluctuations, regardless of gain or loss in the parties’ separate accounts in the months that have elapsed since the financial affidavits and schedules were filed in this matter. The bulk of the parties’ joint assets will be divided equally as of the date of division.
The bulks of the parties’ assets are joint and will take market fluctuations in account by this methodology and will be divided equally for their values at the date of division.
a.) Additional Equitable Distribution Amounts and Earlier Specific Fee Orders
In the recitation and decisions regarding the various pendente lite motions addressed above, the court indicated it would deal with the issue of legal fees and costs more globally rather than determining the amounts due for each alleged infraction cited, argued and claimed, with the sole exception for the plaintiff’s exhibits as above ordered. The court begins with the fact that Marianna expended more than $3,000,000 dollars for legal fees and Ben slightly more than $1,000,000 dollars in this dissolution action. The court finds that approximately $4,000,000 dollars of marital assets had been expended for all the fees in question. In equalizing the marital estate, the court finds it is equitable to credit to Ben one-half of the difference in amounts spent, for an additional $1,000,000 so that each will have had access to one-half of the total amount from the marital estate. In addition to these amounts, Marianna has previously been ordered to pay or has paid the following amounts from the marital assets not included in the total legal fees she paid above:
The court is aware that these amounts have increased since the time of testimony concerning these amounts, but finds it likely that the relative ratio has remained the same.
Previously Ordered fees:
$39,963.50
Blum Shapiro
$25,000.00
Total
$64,963.50
The court finds that for these sums a credit is due Ben of one-half the amount $32,481.75 dollars, since the other one-half is from Marianna’s share of the assets. He is also due a credit of $34,072.50 for one-half of the excess life insurance premiums Marianna chose to pay, as set forth earlier in this decision. In addition, Ben paid the amount due to the Discovery Special Master so that the work could commence in time to be completed prior to trial. The court reserved the amount to be allocated between the parties for the time of trial. The amount paid was $20,970 dollars. In fairness, given the equitable principles which govern, a one-half credit or $10,485 dollars is due Marianna. Deducting this amount from the sums due him above, the court finds an additional net sum of $56,069.25 is due Ben. The total is thus $1,056,069.25. This amount is awarded to Ben not as legal fees, but as part of the overall property settlement and equitable distribution in this matter. It is in addition to the division of the other assets set forth below.
See page 38.**Editor’s Note: The mentioned Schedule E, pg. 52, par. 4, has not been reproduced.***Editor’s Note: The mentioned Schedule D, pg. 53, par. 2 & 3, has not been reproduced.
In this memorandum, the court has ordered the plaintiff to pay $65,000 in legal fees and $5,000 in sanctions to the defendant for her failure to comply with orders concerning her electronic exhibits. Those amounts are ordered paid from her separate accounts within thirty days from the date of this decision.
The plaintiff has also claimed that there are legal fees which were court-ordered for Ben to pay in the years 2016 as well as fees per stipulation in 2014. Those fees total $36,533.74. Those amounts are as listed in plaintiff’s amended proposed orders of February 23, 2018. There was no trial testimony concerning their payment. If they have been paid, defendant shall provide proof of same to the plaintiff’s counsel within thirty days of this decision. If they have not been paid, they shall be paid from his separate assets after the division of those assets set forth below within thirty days from the date of the division of the parties’ marital estate.
b.) Real Property
Marianna has requested in her claims for relief and by motion that the real property owned jointly by the parties and located on Lower Cross Road, in Greenwich, Connecticut be sold and the proceeds be the amount which is credited to the marital estate and then divided as set forth in her claims. The court denies that motion and claim as not feasible under the facts and circumstances of this case.
Ben shall transfer all his claim and title to Marianna to this real estate to be her sole and separate property within thirty days of the date hereof. Upon signing of the deed, Marianna shall be responsible for all costs in connection with the property and indemnify and hold Ben harmless with respect to same. The value of her residence is established at $4,230,000.
The real property located in Greece is hereby awarded to her, free and clear of any claims for Ben. To the extent required, Ben shall sign all documents necessary to transfer all properties to her sole name within thirty days of the date hereof. The value of this real estate is $500,000 dollars. Marianna’s separate real estate as ordered has a value of $4,730,000 dollars.
c.) Automobiles and Other Personal Property
The automobiles are to be divided as listed on the schedules each of the parties has provided. Each shall retain the new BMW in his or her name. All the older vehicles now located at the marital residence shall be Marianna’s sole and separate property as they are mainly used by the children of the parties. Those older vehicles are listed on Marianna’s affidavit as having a value of $35,000 dollars, which the court has found realistic under the circumstances, given their age and use. One-half of their value is to be credited to Ben in the amount of $17,500.
The bulk of the personal property owned by the parties remains in the Lower Cross Road home occupied by Marianna. The personal property, except as ordered below, handbags, furs, and wine shall remain Marianna’s sole and separate property.
As set forth in his proposed orders, the court awards to Ben to be his separate property the personal property set forth in Schedule E** attached hereto and made a part hereof consisting of art, jewelry, and miscellaneous items. The jewelry awarded to him has a value of $137,500 in addition to the jewelry worth $37,500 already in his possession. The rest of the items are assigned no value.
d.) Bank Accounts, Brokerage Accounts, Retirement Accounts and Hedge Fund Investments
Each of the parties has individual accounts in each of these categories and they are hereby ordered to remain such sole and separate property of each of the parties, with the exception of Ben’s J.P. Morgan IRA, which shall be divided so that $1,426,170.50 is transferred to Marianna’s IRA. This amount shall not be further adjusted for value fluctuations occurring since February 23, 2018. The amount remaining in Ben’s J.P. Morgan IRA at the time of division, if it is either more than one-half or less than one-half of the account as it was valued in February 2018, shall remain Ben’s sole and separate property. This shall occur by an appropriate qualified rollover of those funds to an IRA in Marianna’s name of her choosing. Both parties shall cooperate in signing such documents as may be required so that the rollover is a tax-free event with no tax consequences to either party. The rollover is equitably required as Marianna’s retirement accounts are significantly less than Ben’s retirement accounts. Those in Marianna’s name are listed in Schedule A* attached hereto and made a part hereof. The total value of Marianna’s separate accounts before the rollover is $1,810,974. She shall retain her separate accounts free and clear of any claims of Ben. The IRA transfer shall be accomplished within thirty days of the date hereof.
Those assets in Ben’s name are listed in Schedule B* and have a total value of $10,304,493 dollars. He shall retain those separate accounts, free and clear of any claims of Marianna, with the exception of a transfer from his J.P. Morgan IRA #9001 to Marianna’s IRA in the amount of $1,426,170.50 as set forth above and ordered. His separate accounts are subject to the equalization calculations and asset adjustments set forth in Schedule D*** attached hereto and made a part hereof.
With the exception of the Wells Fargo Savings account, the parties’ joint accounts shall be divided equally as of the date of distribution. The adjustment calculations are set forth in detail in Schedule D*** set forth below and made a part hereof. There is a net adjustment amount of $959,080.25 due from Marianna to Ben due to the assets which cannot be divided equally. Those assets are the real estate, the IRA transfer and the other equitable adjustments awarded. The division of the following accounts shall occur on or before thirty days from the date hereof and shall be paid as follows:
1. Wells Fargo Savings *4218: The first $959,080.25 shall be transferred to Ben to equalize the total equitable distribution orders, the IRA transfer and the additional orders made. The remaining balance of the account shall be divided equally between the parties.
2. All remaining joint accounts shall be divided equally between the parties for the values as established on the date of division within thirty days of the date hereof.
3. Marianna shall pay to Ben the total sum of $70,000 in legal fees and sanctions from the separate assets awarded to her in this decision within thirty days of the date hereof.
4. Ben shall pay all legal fees ordered by the court or stipulated to, if not already paid, from the separate accounts awarded to him in this decision on or before thirty days from the date hereof. If previously paid, he shall provide proof of same to Plaintiff’s counsel within thirty days of the date hereof. These amounts are not further adjusted between the parties as they were ordered before the immediate pretrial and trial period.
5. Each of the parties shall be responsible for their own legal fees to their respective counsel and experts.
6. Miscellaneous further assets and orders: The Burning Tree Country Club membership shall belong to Ben, as well as the Las Cruces and First Rain investments. There is no adjustment made for the capital gains taxes of $250,000 due on Ben’s separate investments. The court finds that Marianna overpaid her estimated taxes in 2017 by $259,174 and one-half of this or $129,587 shall be paid by her to Ben from her separate accounts within thirty days from the date hereof. No state court order can be made for social security benefits.