Opinion
No. FA02 039 67 44
November 18, 2004
MEMORANDUM OF DECISION
The parties were married at Marina del Rey, California on October 22, 1983. There is one minor child, issue of the marriage, Jonathan D. Cooperman, born October 15, 1989. This is the wife's first marriage and the husband's third. He has two emancipated children from his first marriage. The wife is 54 years old and the husband is 62. At the time of the marriage the husband was a reputable ophthalmic surgeon licensed in California but based on various wrongdoings in 1990 he agreed not to seek renewal of his medical license which had already expired.
Prior to this time he had established himself as a leader in his specialty and developed an excellent reputation. In addition to his scholarly endeavors he became a connoisseur of art works. He had amassed real estate holdings both in California and in Connecticut as well as extensive securities. In July of 1992 when he began experiencing financial difficulties he arranged for the theft of a Picasso and a Monet from one of his Brentwood, California homes while the parties were away on vacation. The two paintings were insured for $12,500,000 but the value was over-represented. At the time of the prearranged theft the parties had loans outstanding of nearly six and a half million dollars. At the same time they owned a valuable art collection, two homes in Brentwood, real estate in Connecticut and property in Palm Springs, California. Husband also had a retirement account of approximately 1 million dollars. He was also receiving tax-free disability payments of $480,000 per year as well as large sums as kickbacks from attorneys in one of the leading class action law firms in the nation, Milberg, Weiss, Bershard, Hynes and Lerach. Milberg Weiss maintained one of its many branch offices in San Diego and the husband developed a relationship with one of the law firm's principals in that office. Millions were paid to the husband but he in turn was required to share the ill-gotten proceeds with others.
Subsequent to the art theft the husband filed a lawsuit against the insurers for failure to pay for the value of the paintings as well as other damages related thereto. In September of 1993 he received a settlement of $17,500,000 which he used to pay down marital debts, pay $1,000,000 to his attorney, $75,000 to his sister, and new investments. From the same proceeds he gave his wife $2,250,000 for her to invest as she saw fit.
In June 1997 the Monet and Picasso were recovered in a storage locker in Cleveland. A lawyer who was involved with the husband in the theft implicated him. He was indicted and convicted in the United States District Court for the Central District of California at Los Angeles and was facing a ten-year prison sentence when he decided to cooperate with the government, which required him, among other persons, to implicate his wife's brother-in-law as well as members of the Milberg Weiss law firm. It would serve no purpose to detail the specifics of the cooperation because the investigation is ongoing and this court has placed the cooperation agreement under seal. Needless to say because of this cooperation the husband "saved" about seven years and was sentenced to 37 months. Husband was incarcerated at the Fort Devens medical facility before being discharged on home release. During this time he was being shuttled back and forth to Los Angeles in connection with his proffers. While he was incarcerated the wife served him with the dissolution complaint that he testified came as a complete surprise to him. Wife discovered that while incarcerated husband filed false insurance documents relating to his disability which also affected her already fragile psyche.
Subsequent to husband's conviction in the federal court he was sued by the art works insurer who obtained a stipulated judgment against the husband in the amount of $22,000,000 which is still outstanding. In September 1993 the defrauded insurance carrier filed a new suit against the husband and added the wife as a party defendant. These actions are presently pending in the New Britain Superior Court (Complex Litigation).
After the husband received the $17,500,000 from the art insurer in 1992, $2,250,000 of these proceeds were given to the wife. She invested this sum in the so-called Gruber account that was managed and maintained by her. It eventually grew to have a value of approximately seven million dollars. As part of husband's sentencing agreement with the Department of Justice he was required to pay restitution in the total amount of 3.5 Million Dollars in various installments over a period of time. After husband's release from prison on 7-25-03 and subsequent to the commencement of the dissolution action the wife loaned the husband $300,000 for his first restitution payment. The next year, the wife again advanced a restitution payment in the amount of $300,000 in the form of alimony, pendente lite. This stipulation became an order of this court. The wife paid this sum because if the husband was reincarcerated their young son would suffer the loss of the companionship of his father.
One of the issues the court must decide is the cause for the breakdown of the marriage and an assessment of fault. The plaintiff testifies that the marriage was harmonious and more than eventful. It was pursuant to her testimony, "magical." There is an absence of testimony as to the usual claims leading to breakdown of the marriage but the plaintiff claims that the theft of the Renoir and Monet and defendant's conduct and surreptitious behavior in relation to this event and other deceptive practices by the husband led to the breakdown. She has required medication for the last five years, weekly psychiatric visits and she became extremely stressed. Defendant's disclosure of his criminal activity to her seven years later came too little and too late and his lack of candor is fault and one of the causes for the breakdown of the marriage. This coupled with the plaintiff's fear of retribution as a result of defendant's cooperation with the United States Attorney created great strain on a previously harmonious and blissful marriage. At the time of the theft of the Monet and Picasso in 1992 she also feared that thieves would be back to steal more and this lingered through subsequent years.
It is clear that married couples may enter into contracts between themselves. Since 1877 married women have enjoyed the right to own and manage their own property. These statutory rights include the right of married couples to contract themselves. The capacity to own property involves an equal power to make contracts and contract with each other. Matthewson v. Matthewson, 79 Conn. 23, 32 (1906). Obviously, to enforce a contract between spouses it must first be established that the contract is bonafide and is supported by valid consideration. Comstock's Appeal, 55 Conn. 214, 222 (1908). The testimony elicited at trial supports the claim of valid contracts. Each party had independent counsel during the negotiation of the agreements, documents memorializing the agreements were drafted and executed, and both parties are intelligent and well educated. The parties testified that they agreed that plaintiff would provide cash in exchange for assets of equal value. The uncontroverted testimony of Attorney Gioella at trial and the deposition testimony that the court has read was that defendant's interest in real and personal property was exchanged for plaintiff's funds. Attorney Gioella who represented the defendant in many aspects of the criminal proceedings and counseled him extensively in the transfer of assets characterized the transfers as a "like/kind exchange." Defendant is estopped from repudiating a contract after accepting benefits thereunder assuming the contract was validly made. Schwanzschild v. Martin, 191 Conn. 316 (1983).
It is uncontroverted that plaintiff used funds from her Gruber account to purchase defendant's assets. This account was opened in 1993 following plaintiff's concern that she might be without funds to provide for herself and their son, Jonathan because of defendant's questionable investments. Plaintiff was given $2.25 million by the defendant and the funds were deposited in the Gruber account which grew to more than $7 million. During the period of the establishment of the account it remained under the complete dominion and control of the plaintiff. Plaintiff managed all aspects of this account. Even when plaintiff used her funds in this account to post bail for the defendant the funds remained in her name. When asked at other time to make funds available to the defendant she simply said "no." The documents and the testimony clearly establish the intent of the parties was to exchange the defendant's assets for the money that was hers and that she was clearly entitled to.
In addition to the issue of the cause or causes of the breakdown of the marriage the court has carefully considered all of the criteria set forth in § 46b-81 and 46b-82, Connecticut General Statutes in entering its orders. During argument husband stressed the factual evidence that the wife brought few resources into the marriage and contributed little to the acquisition of assets during the course of the marriage. Husband who had been married twice before made it abundantly clear that his present marriage of twenty years was more than blissful and successful and their marriage made him extremely happy. The marriage produced a son that is a wonderful and joyous part of their lives as evidenced by the custody and related matters entered into by stipulation dated May 27, 2004. The court is well aware of husband's age and physical plight and the likelihood that he will probably generate little income in the years ahead. His funds have for all purposes been significantly depleted. The Court is not unmindful that the source of funds that are available for equitable distribution are the product of his efforts, legal or otherwise.
Wife claims and the Court finds that she entered into a valid post-marriage contract with the defendant. Based on this contract and the various transfers between the parties, he has little left except for his disability insurance payments that have determinate termination provisions. Despite the Court's determination that the contract is valid there are substantial assets owned by the wife and these assets must be considered by the Court in making its determination of alimony and property distribution, pursuant to § 46b-81 and 46b-82 of the Connecticut General Statutes.
ORDERS
The marriage is dissolved.
Alimony
The wife shall pay as alimony to the husband Two Million Five Hundred Thousand ($2,500,000) Dollars to be paid as a lump sum pursuant to C.G.S. § 46b-81, such payment to be made not more than thirty (30) days next following the date of entry of judgment. She shall pay an additional payment of $300,000 toward his restitution payments ordered by the United States District Court for the Central District of California as lump sum pursuant to Connecticut General Statutes § 46b-81 no later than 30 days from the date of this judgment.
Child Support/Medical Expenses
Until Jonathan attains the age of 18 (or in the event he has not graduated from high school upon reaching his 18th birthday, then upon the earlier of his graduation from high school of his attaining the age of 19), as and for child support, the parties shall do the following:
Each party will pay those reasonable costs attributable to Jonathan's support including food, clothing and shelter incurred while Jonathan is with the party in question. Since there has been an equal division of time and responsibility, no financial order of support shall enter except as hereinafter set forth.
As child support each party shall continue to pay $10,000 per year pursuant to the terms of the Cooperman Life Insurance Trust for the benefit of Jonathan.
The husband shall continue to maintain medical insurance for Jonathan under his present policy or its equivalent. Each party shall promptly pay one-half (½) of all of Jonathan's uninsured medical and dental costs. Except in the event of an emergency, neither party shall incur any such uninsured medical or dental costs without first securing the other's permission, which permission neither party shall unreasonably withhold. The provisions of C.G.S. § 46b-84(e) shall be applicable.
Each party shall pay one-half (½) of the cost of Jonathan's private schooling including sports, tutors, and activity fees. The decision as to whether Jonathan will attend private school in any year shall be made by mutual agreement. In the event that the parties disagree in this regard, the Court shall retain jurisdiction to determine (1) whether Jonathan shall attend private school and (2) the school which he will attend. The Court will reserve jurisdiction in accordance with C.G.S. § 46b-56c to enter an educational support order.
Each party shall be entitled to fifty (50%) per cent of each prospective social security disability check paid for the benefit of Jonathan and it shall be used for his support. The wife has received such checks during the pendency of this action.
Tangible Personal Property
The wife shall retain all tangible personal property in her possession including, but not limited to, artwork, antiques, the autograph collection and furniture, except that the husband shall receive certain items, a list of which is appended hereto as Schedule A. The husband shall retain all items presently in his possession.
The parties shall equally divide the tax refund in the approximate amount of Twelve Thousand Five Hundred ($12,500) Dollars due them jointly for tax year 1993.
Except as set forth in this paragraph 1 and in paragraph 4 (Life Insurance), each party shall retain all assets in his or her name.
Liabilities
Each party shall be responsible for these liabilities shown on their respective financial affidavits except for counsel fees that are awarded to the defendant.
Custody and Related Matters
The parties entered into a stipulated custody agreement dated May 27, 2004. It was entered as a judgment of the Court.
Personal Property
Pursuant to terms of the asset transfer agreement dated September 19, 2001 and further as part of the equitable division of assets the wife shall transfer to the husband the autograph letter collection appraised by EAS as well as the autograph letters of Napoleon Bonaparte, Johannes Brahmas, and Pytro Tchaikovsky.
The parties shall each retain their own bank accounts and investments.
In December 2002, the wife advanced from her funds $300,000 as a loan to enable him to make his 2002 restitution payment so that he would avoid going back to prison and to facilitate his ability to be with Jonathan. She also advanced additional funds to the husband in the amount of $37,488. Regardless of the fact that the parties entered into a valid contract as part of the equitable division of assets wife shall make no claim to these funds and said funds shall be treated as husband's.
Real Property
The wife shall retain the real property at 1901 Fence Row Drive, Fairfield, free and clear of any claim by the husband.
Counsel Fees
Wife shall pay, for the husband's benefit, the sum of $125,000 toward his counsel fees and costs and said payment shall be made directly to defendant's attorney.
OWENS, J.
SCHEDULE A
All personal books, papers, records, memorabilia, photographs and other personal items including those concerning the husband's children, grandchildren and medical practice.
Dishes, crystal and flatware brought to marriage by husband.
All posters, prints and lithographs, both framed and unframed.
Carmean, Orlando, Burchman and DeHory paintings
Photos and photo albums
Gifts to husband from children and grandchildren.