Opinion
No. FA 03 0401416
March 22, 2005
MEMORANDUM OF DECISION
This is an action for dissolution of marriage and other relief brought to the Judicial District of Fairfield. The plaintiff, Howard Sosin, and the defendant, Susan Sosin, were married on April 26, 1980, in New York City. It is the plaintiff's first marriage and the defendant's second marriage. They have three children, the only minor child being Clarissa Sosin, born on August 27, 1991. The plaintiff is 54 and the defendant is 51. Both parties have resided in Connecticut for at least one year prior to the date of institution of this dissolution of marriage action.
The plaintiff received a bachelor's degree in computer science from the University of California — Berkeley in 1972 and a master's degree in economics and a Ph.D. in finance from Stanford University in 1977. The defendant received a bachelor's degree in philosophy from New York University in 1973. The parties first met in 1978, at which time the plaintiff was an assistant professor at Columbia University; the defendant was married to her first husband and was working in retail. The parties have no other children other than the issue of this marriage. The parties married soon after the defendant divorced her first husband. The defendant came to the marriage with a little money from a settlement agreement as a result of a car accident in which she had been injured. The parties had no other financial assets.
The parties had their first child, Clifford, in 1982 and their second child, Tyler, in 1986. Also in 1986, the parties jointly purchased the apartment located at 133 E. 80th Street in New York, New York. The plaintiff was employed as a senior vice-president with the now defunct Wall Street firm of Drexel, Burnham and Lambert from 1982 until 1987. In 1987, the defendant entered into a joint venture agreement with American International Group, Inc. (AIG), creating AIG Financial Products (AIGFP), with the plaintiff serving as its president and chief operating officer. In 1989, the parties purchased their ski house located at 9767 East Sugarplum Road in Alta, Utah, which was unfinished at the time. In 1990, they purchased their current residence at 640 Sasco Hill Road in Fairfield, Connecticut. In 1991, their third child, Clarissa, was born. In 1992, the parties purchased the house located on 702 Sasco Hill Road in Fairfield, Connecticut, which has since been used as a residence and office for employees. In 1993, the parties moved into the Fairfield residence. Later in the year, the AIGFP joint venture terminated; the sale of the interest in AIGFP and a resolution of the employment agreement by litigation resulted in a payment of $115 million to the plaintiff. The plaintiff retired from full-time, regular employment in 1996. Also in 1996, the plaintiff tried to form a joint venture with Banco Santander, but the venture failed. Subsequently, in 1997, he received a payment of $12.6 million as a result of a settlement with Banco Santander. In 2000, the plaintiff paid $17 million to his former colleague, friend and Tyler's godfather, Randy Rackson, as a result of litigation between the two. In 2000, the plaintiff received a second payment as a result of the AIG arbitration settlement in the amount of approximately $67 million.
The plaintiff was obligated to pay legal fees and the bonuses of employees who came with him when he left AIGFP. Thus, the gross pre-tax amount to the plaintiff totaled $95 million.
While the plaintiff worked outside of the home, he also became involved in projects that stemmed from his interest in a particular topic that grew into larger causes. In 1992, the parties discovered that Clarissa had an acute allergy to peanuts that caused her to go into anaphylactic shock. In 1994, the plaintiff established the Clarissa Sosin Allergy Research Foundation (Research Foundation) to fund projects that would research and hopefully find a cure for peanut allergy. The plaintiff served as president of the Research Foundation's board, and the defendant served on its board of directors. The plaintiff made a commitment of $300,000 per year for five years to the Research Foundation. The plaintiff's interest and commitment to finding a cure for his daughter's allergy led him to audit courses related to immunology and cell biology at Yale University School of Medicine.
In 1999, when the commitment to the Research Foundation was expiring, the plaintiff established SEER, LLC (Seer), a company that would continue the Research Foundation's search for a cure for peanut allergy while enjoying the tax benefits of a limited liability company. Seer is a virtual company, one without a building structure or employees, that focuses on auto-immune related research. The plaintiff owns 40% of Seer, with the Sosin children owning another 40% in trust, and several scientists owning the remaining 20%. Thus far, the plaintiff has contributed approximately $9 million to Seer. The money pays for the company's advisors and funds the work of scientists and universities that conduct the research.
Another company established and owned by the plaintiff is FEIL Golf, LLC (Feil Golf). The plaintiff has utilized his interest in golf, which will be discussed later, to establish this company and create inventions related to the physics of golf. The company owns some patents, and thus far, the plaintiff has invested nearly $1 million in this company. He has been unable, however, to find investors for the patents of questionable value.
Similarly, the work funded by Seer has led to minor successes in the field of immunology but is still years away from finding any cures. Additionally, no one is willing to invest in Seer. The plaintiff candidly acknowledges these facts. Nevertheless, he remains committed to his work and has invested nearly $10 million in the two companies and continues to invest approximately $125,000 per month in Seer and Feil Golf collectively.
The plaintiff's financial affidavit, however, states that Seer "has entered into negotiations with The Cystic Fibrosis Foundation for potential reimbursement of certain expenses yet to be incurred." (Emphasis added.)
While the plaintiff was working outside the home and earning the family income, the defendant was engaged in the care taking of the children and the home. When she was pregnant with each of the three children, the defendant attended the prenatal appointments alone. Once the children were born, she nursed them and was primarily responsible for the children's day-to-day activities, including scheduling and attending their medical appointments and extracurricular activities, helping them complete their school applications, and planning and organizing their birthday celebrations. The defendant also planned an annual holiday party every December at the parties' Utah residence. The plaintiff played a minimal role in these activities, primarily because of his unabiding commitment to his business ventures.
In addition to caring for the children, the defendant maintained the home prior to the hiring of staff. She balanced the family checkbooks and managed the employees' bookkeeping until the parties hired a bookkeeper and accountant to manage the family's accounts. She also filed the family's tax returns, maintained the family cars, chauffeured the plaintiff around New York City for his business appointments, cooked the family meals and cleaned the home. When the parties moved from one home to another, the defendant was primarily responsible for packing and moving. When the parties bought the West 79th Street apartment in New York 1983, which they subsequently sold in 1986, the defendant was actively involved in renovating the apartment, including doing physical renovations, working with the architects, and hiring subcontractors. In other homes, the defendant worked closely with the interior decorator to design the homes and was directly involved in the selection of art pieces for the homes, as was the plaintiff. Moreover, when the parties' purchased the house located at 702 Sasco Hill Road, their close friend, Barry Goldman, moved into the house temporarily. The defendant helped Goldman settle in the home.
Both sides acknowledge that the defendant did not directly contribute to the plaintiff's business. The plaintiff never needed the defendant to fulfill the role of a corporate wife. He, in fact, testified that the companies that he was a part of were not corporate environments, and there was no requirement for the plaintiff to entertain clients. He also testified that he did not need the defendant to do anything for his business, companies, or litigation. The defendant did not partake in the role of corporate executive's wife because there was no such role to fulfill. Had such an opportunity arisen, she may have contributed. This court, therefore, cannot judge the defendant for her lack of involvement in the plaintiff's business development.
Both parties acknowledge that they enjoyed a very active, healthy, and satisfactory sexual relationship during their marriage. Their marriage included public displays of affection as well as emotional intimacy.
Despite the intimacy in the marriage, the parties began to lead separate lives. As the plaintiff remained committed to his business activities, working many hours and sometimes traveling away from home for business, the defendant testified that he encouraged her to acculture and socialize more. The defendant was becoming used to life alone and began developing her own interests, mainly rock climbing, skiing and dance. The defendant is a first-rate avid skier. She usually skis more than fifty days a year, from 9 a.m. to 4 p.m. Last year, she skied for fifty-eight days. She has also heli-skied, which involves using a helicopter in place of a lift, and has successfully skied on slopes that require exceptional ability. She is also extensively involved in rock climbing, starting it in 1992. She usually rock climbs between the months of April and November, often three days a week from 9 a.m. until 6 p.m. When Clarissa was younger, the nanny, Sarah Swanston, would care for her while the defendant was rock climbing. Additionally, she is also on the board of the American Ballet Theater and the Joyce Theater and serves on two committees of the Mohawk Mountain Preserves.
The plaintiff enjoyed spending his free time playing golf, a sport that he learned while in college. He used to join the defendant for skiing, although she remains more skilled at the sport than he, but he has no interest in rock climbing. While the defendant occasionally accompanied the plaintiff on the golf course, the plaintiff often played without her. The defendant alleges that the plaintiff spends at least one hundred days a year on the golf course. She also alleges that the plaintiff's interest in golf caused him to plan family outings around his golf schedule. His interest in the sport is not just at the level of playing it, but has escalated and led to his golf-related inventions and his establishment of the earlier discussed Feil Golf company. The plaintiff has also acquired multiple memberships in highly competitive and affluent golf communities, which are part of the property to be distributed.
The parties have long enjoyed a lavish lifestyle that they could easily afford. They hired their first household help in 1982 when their first child was born. At that time, the household help consisted of a nanny and a housekeeper, both of whom helped the family only through the work week. Since then they have had, at most, fourteen staff members working within their household. In fact, the 702 Sasco Hill Road house in Fairfield currently serves as a residence for employees of the Sosin residence. Furthermore, prior to 1996, the parties had traveled on many trips together, including trips to the Caribbean, Aspen, a safari trip to Africa, Europe, and Alaska, always experiencing the most lavish accommodations. They have five residences and eighteen automobiles at their disposal. The plaintiff has gifted the defendant numerous pieces of jewelry during the marriage, including a 25-carat diamond ring on their sixteenth wedding anniversary. The parties have made numerous charitable contributions throughout their marriage as well, including gifts of cars, paying for 24-hour home care for the defendant's family members, and numerous monetary contributions to institutions such as Stanford University and the Joyce Theater.
In 1996, after an argument, the plaintiff threatened that he would move all the money in joint accounts into his personal account. The plaintiff testified that he then learned that the joint accounts had actually been in his name only. The defendant, however, testified that the plaintiff had in fact changed the joint accounts into his individual account. Nevertheless, thereafter, the defendant told the plaintiff that she wanted to have some money of her own. The plaintiff then transferred $5 million in her name into a Sanford Bernstein account.
By 1996, the plaintiff was working many hours and earning the family income, often having to be away from the family and home. The defendant was taking care of the home and the children and had engrossed herself in activities that she enjoyed. In 1996, while rock climbing, she engaged in kissing with a rock climbing guide, Jim Munson. Munson also fondled her breasts. She states that the incident with Munson was not an affair, explaining it as a spontaneous and isolated occurrence. She testified that this incident occurred one time only and alleges that she told the plaintiff about this incident, which he denies.
But see Emails from the Defendant to Brooks, Exhibit 10, p. 72 (stating that the defendant had "sessions" of "necking" with an unidentified male). The plaintiff pointed to this email in his closing arguments, suggesting that the man to whom the defendant referred to in the email was in fact Munson and that the incident with Munson was not isolated.
The defendant testified that prior to 2000, she as well as the plaintiff met with numerous therapists regarding the breakdown of her marriage for the purpose of reconciling their differences. These therapists include Dr. Boland (late 1980s), Dr. Francine Howland (mid-1990s), Drs. Bloom and Tower (1996-1997), Dr. Davidoff, and Dr. Steven Bittner. She expressed to the court her suspicions as to the plaintiff's attraction to one of these therapists but the evidence suggests only conjecture.
During a 2000 visit to Hong Kong and China, the defendant met David Brooks on board her flight. He assisted her with her luggage, and thus the defendant's already weak marriage began to disintegrate. The day after they arrived in China, the defendant called Brooks at his hotel. They met that evening and spent a couple of hours together. The defendant gave him her email address and he gave her his business card, which listed his email address. Upon returning to the United States, she emailed Brooks and then began a relationship with him that consisted mainly of communication via email and the telephone. Although the defendant previously had an existing email account, she set up another email account through which she contacted Brooks. In late 2000, the parties took the Silk Route trip, visiting Turkey, Tunisia, Iran, Uzbekistan, Mongolia, Myanmar, and Syria. They engaged in sexual relations on this trip. During this trip, the defendant and Brooks communicated via email, unbeknownst to the plaintiff. The defendant also maintained a journal of the trip, which she then sent to Brooks. She and Brooks planned to meet often but, after the China trip, met only once. The week before Christmas in 2000, she met Brooks in Utah during a skiing trip planned for Clarissa. She clandestinely met with Brooks on two separate nights, each time engaging in sexual relations.
During their serendipitous relationship, the defendant never called Brooks at his home where he lived with his wife and children, instead always calling him only on his cell phone. Similarly, Brooks called her only on her cell phone (with the exception of September 11, 2001, when he called her at home). She sent Brooks cards and one very personal item. The conversations between her and Brooks included open and intimate discussions relating to her marriage to the plaintiff and also included at least one telephonic sexual encounter. She also enlisted the support of her friends, including Mary Mirylees who even spoke with Brooks herself. Brooks attempted ending the relationship with the defendant on more than one occasion, but it always recommenced soon thereafter. The relationship finally ended in November 2001. The defendant continued constant sexual relations with the plaintiff during her on-going relationship with Brooks. The defendant claims that her relationship with Brooks was only illusory and not an affair. She did, however, consult an attorney to discuss the implications of this relationship if she were to divorce the plaintiff. Nevertheless, she testified that she was not concerned that her surreptitious relationship with Brooks was interfering with her marriage or Brooks' marriage, nor does she believe that this relationship contributed to the breakdown of her marriage.
The defendant's emails to Brooks, however, do reflect some intention to divorce the plaintiff as well as her desire to live with Brooks as a family in the future.
The defendant traveled extensively during the period of 2001-2002. In March 2001, she traveled with a friend to Canada for a mountain holiday; neither her husband nor the children accompanied her on this trip. In April 2001, she visited France for one week, without the plaintiff. In May 2001, she visited Greece. In July 2001, she visited France again. In October 2001, she visited Las Vegas for her birthday. The plaintiff was supposed to accompany her on this trip but cancelled his going because, according to the defendant, he would have been unable to golf at his favorite course. In November 2001, the defendant visited Cuba. In January 2002, the parties took a world trip on a private jet. In May 2002, the parties visited Venice. In September 2002, the defendant visited Greece again. During all of these travels, she and her husband, if he accompanied her, traveled first class and stayed at first class accommodations. She alleges that if she traveled without her husband, it was because he did not want to travel with her. She had become lonely and these trips served as diversions from her loneliness.
In September 2002, she visited Greece with a friend, Katherine Schwab. Her rock climbing guide accompanied her on the trip two weeks later because the two had planned to rock climb during the third week in Greece. She planned to be on this trip, and thus away from the plaintiff and their family, during her birthday. She testified that she had spoken with the plaintiff about being away on her birthday and it was okay with him. The plaintiff however, states that her decision to be away on her birthday was a signal that something was fateful in their marriage because, heretofore, she had given great importance to celebrating birthdays with him and the family. After she left for the trip, the plaintiff hired Adrian Hellman, a New York lawyer, as his divorce attorney. At Ms. Hellman's suggestion, he subsequently hired Alan Rubenstein as his Connecticut divorce attorney.
While the plaintiff suggests that the defendant may have had an affair with this tour guide, there is no evidence to suggest the occurrence of such an affair.
While the defendant was in Greece, the plaintiff emailed her, notifying her of his intent to obtain a divorce. The email further stated, however, that he had not commenced any legal action and would not do so until she returned from Greece and the two had an opportunity to discuss the matter. The defendant was at an Internet cafe with Ms. Schwab when she received this email. She asked Ms. Schwab to read the email. According to Ms. Schwab's testimony, the defendant was devastated.
The parties reconciled after the defendant returned from her trip. As part of this reconciliation, she agreed to reduce her activities and traveling and to spend more time golfing with the plaintiff. She testified that she told the plaintiff about her relationship with Brooks upon return from Greece, a claim he denies. Both parties admit that the defendant initially curtailed her activities and traveling. She also promised the plaintiff that she would not go on her next scheduled trip to Cuba and the third Stanford trip scheduled for February 2003. The plaintiff later discovered, however, that she in fact paid the deposit for the Stanford trip despite her commitment to him not to go. She took the trip, once again without the plaintiff, to South America and Asia.
In February 2003, while the defendant was on the Stanford trip, a computer consultant hired by the parties to upgrade their computer systems handed the plaintiff a piece of paper that listed passwords to the defendant's email accounts. The plaintiff testified that the consultant looked upset, and he asked her if he should have the piece of paper, to which she replied affirmatively. The plaintiff was thus able to access the defendant's accounts. It took the plaintiff days to read through all the emails, discovering that his wife had been unfaithful. Among the email account's folders were two folders named "Redmond" (Brooks resided in Redmond, Washington) and "Diary." The emails and diary entries, which have been admitted as Exhibit 10 and which the court has carefully examined, are basically a compilation of the events in the defendant's life from July 2000 to December 2001. The behemoth-sized Exhibit, which totals 637 pages with some duplication, details the defendant's experiences and emotions. Exhibit 10 also contains damaging admissions that support the plaintiff's claims of infidelity as well as elements of surrealism.
The computer consultant did not testify at the trial, nor did the parties depose her. The parties did not offer any evidence explaining how or why the consultant herself accessed the defendant's email account. The defendant testified that she did not authorize the consultant, or the plaintiff, to access her email account.
A few days later, the plaintiff telephoned Paulette Remppel and stated that he wanted to meet with her. Remppel served as the parties' accountant and has her office at 702 Sasco Hill Road. Remppel also serves as a deacon for the Episcopalian church and is a certified grief counselor. During his conversation with Remppel, the defendant said he wanted her to come to his residence immediately after her Sunday service and before changing into her street clothes. Remppel inferred from this that he wanted to speak with her in her role as a deacon, not as his accountant. She met with him at his residence following her Sunday service. She testified that at this meeting, the plaintiff was extremely distraught; he seemed to have not slept or shaven and to have lost weight since the last time she had seen him just a few days earlier. At this point, she and the plaintiff had an approximately four-hour conversation wherein he told her that the defendant had an affair. The plaintiff was tearful during this conversation. Remppel has counseled him in this matter since this startling revelation.
The other Sosin household employees were not aware of the defendant's affair until they were notified by counsel prior to their trial testimony.
The plaintiff subsequently checked the family's previous phone bills, spanning the months of the email correspondence between the defendant and Brooks, to see if telephone calls had also been made to Brooks. He noticed that repeated calls had been made to phone numbers in Redmond, Washington, where Brooks lives. The plaintiff does not know anyone else who lives in Redmond, Washington. Exhibit 26, a summary of out-going calls made to Washington state from the Sosin phones from October 2000 until February 2002, totals more than forty-four hours.
Although the defendant's relationship with Brooks apparently ended in November 2001, the list of phone calls demonstrates that telephone conversations between the defendant and Brooks continued for a few months after November.
The plaintiff subsequently called Attorney Rubenstein and asked him to file for divorce. At Attorney Rubenstein's direction, the plaintiff made copies of the defendant's emails to and from Brooks. On March 7, 2003, the plaintiff filed for divorce.
The plaintiff called the defendant while she was in Asia and told her that he had filed for divorce. The plaintiff and the children went to Arizona, where the defendant was supposed to meet them after her trip from South America and Asia. After filing for divorce, however, the plaintiff changed the defendant's travel plans, without her consent. He did not want to meet her in Arizona and thus rescheduled her flight to Utah. When the defendant returned from her trip, she met with her devoted friend Mary Mirylees in Utah. The two then immediately traveled together to Fairfield and stayed overnight at the Sasco Hill Road residence. While they were at the Fairfield residence, the defendant deleted most of the emails she had received from Brooks because, she testified, she did not want anyone to discover them, knowing that they would obviously further cause her a serious predicament. She also compiled a list of divorce attorneys, on the advice of Diane Safran, who had been the Sosin children's therapist, so she could meet with the attorneys for the purpose of disqualifying them in the event that the plaintiff sought one of them for the purposes of representation, a practice that this court sees all too often and finds highly questionable. She and Mirylees then traveled back to Utah the following morning. She did not know that the plaintiff had previously made a complete copy of all the emails (Exhibit 10), including those that she had assumed she had destroyed, until her deposition prior to this trial.
After filing for divorce, the plaintiff began visiting New York City regularly. During one such visit, he had dinner with a good friend, Neil Grayson. Grayson invited another friend, Carmen Glover. This was the first time that the plaintiff met Glover. They have since developed a strong romantic relationship. During this relationship, the plaintiff has helped Glover's family monetarily, has taken many international trips with Glover and has bought her gifts and jewelry.
In April 2002, the plaintiff had visited the Cellini jewelers in New York City, from whom the parties had purchased many jewelry items before. Knowing that the defendant liked a ruby and diamond suite, consisting of a necklace, earrings, and a bracelet, he purchased it for her for approximately $125,000. He did not, however, give the ruby suite to the defendant or even tell her that he had purchased it. The plaintiff kept the ruby suite in his safe at the Fairfield residence. After the plaintiff had filed for divorce, the defendant discovered that he had bought the suite when she was examining insurance sheets that detailed jewelry that had been insured by the parties. She asked to borrow the ruby suite on two separate occasions for one night each. The plaintiff agreed to let her borrow it upon written agreement between the parties' counsel. She wore the suite to events and returned it the following day on both occasions. One day, the defendant, who knew the combination to the plaintiff's safe, took the ruby suite without asking the plaintiff's permission and has since refused to return it. Both parties are asking to be awarded the ruby suite. The plaintiff testified that although he had purchased the suite for the defendant, her infidelity caused him to change his mind and he no longer wants her to have it. The defendant testified that she wants it because the plaintiff bought it for her and she has worn it to gatherings and has been photographed in it; she also does not want Glover to wear it. It shall be awarded to the defendant and treated as one of her assets.
This is a marriage of more than twenty-five years. The parties never intended to keep their assets separate during or after the marriage. Thus, while each party is awarded their own jewelry and gifts, such awards also are considered as part of their assets for matters of equitable distribution. See Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995) ("[Section 46b-81] [which addresses distribution of property] does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court's broad allocative power"). "It is widely recognized that the primary aim of property distribution is to recognize that marriage is, among other things, a `shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute . . . the fruits of which are distributable at divorce.'" (Emphasis in original.) Id., 795. The gifts and jewelry received by one spouse from another constitute the fruits of the marriage and, as such, constitute assets.
It is clear to this court that the parties did at one time care greatly for and loved one another. The parties are good parents. Just as both parties contributed to the welfare of the marriage and family at one time, so now is neither side without fault for the breakdown of the marriage. The plaintiff was completely immersed in his work, often working and living away from his family, thus earning the enormous wealth that the family has come to enjoy. When he was afforded free time, he enjoyed playing golf, to the extent that the family traditionally celebrated Thanksgiving on Saturday rather than Thursday so his golfing would not be disrupted by the holiday. Similarly, the defendant did not monetarily contribute but was a homemaker, caring extensively for the children and the homes, especially while the plaintiff was away at work. As the family was able to afford household help, the defendant became thoroughly involved with skiing, rock climbing and dance activities. At times, the plaintiff and the children found themselves having meals without her while she was engaged in the spiral of her outdoor activities. Furthermore, she traveled extensively throughout the world, many times without the plaintiff, keeping her away and detached from her husband and family for multiple days at a time.
O'Neill v. O'Neill, 13 Conn.App. 300, 311, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988) ("A property division ought to accord value to those monetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible marital assets. The investment of human capital in homemaking has worth and should be evaluated in a property division incident to a dissolution of marriage. We hold, accordingly, that an equitable distribution of property should take into consideration the plaintiff's contributions to the marriage, including homemaking activities and primary care taking responsibilities.").
By their own admission, throughout their marriage, the parties had numerous heated arguments, during which the parties name-called and cursed at each other, and divorce was often threatened. The incident involving the defendant and Munson and her speculation about the plaintiff having an affair with a therapist, both of which occurred in 1996, are also further indicative of uncertainty and the complexity of problems within the marriage. The parties led separate lives, while still living in the same residence. While they may have been unhappy with the state of their marriage for many years, they attempted to rehabilitate their relationship, seeing numerous marriage counselors, individually and together.
The death knell to the marriage occurred, however, when the plaintiff discovered the defendant's emails and, consequently, her affair with Brooks. The emails detailed significant events in the parties' marriage, including their sexual and emotional responses to one another, and also made obvious that other people in the parties' lives knew of her affair. It is the reading of the emails and diary entries that caused the plaintiff to terminate the marriage. He feels strongly and correctly that the breaches of confidentiality borne out in Exhibit 10 lowered his self-esteem and humiliated him. While the marriage was steadily deteriorating, the Brooks relationship and the emails and diary entries (Exhibit 10) were the coup de grace.
Although the defendant has repeatedly refused to define her relationship with Brooks as an affair, this court does so. See DiVito v. DiVito, 77 Conn.App. 124, 136-39, 822 A.2d 124, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003) (finding that the defendant engaged in an extramarital affair despite the lack of testimony as to a sexual, romantic or intimate relationship with anyone other than the plaintiff). The DiVito defendant testified to having a relationship with another woman but denied any intimacy with her. The court was unpersuaded by the defendant's testimony and "was free to accept or reject, in whole or in part, the testimony offered by either party . . . Additionally, we note that a trier of fact is permitted to infer certain facts from the evidence presented . . . Although the defendant testified that he did not have an intimate relationship with [another woman], the court was free to disbelieve the defendant's testimony, and reasonably infer from the testimony . . . that the defendant had engaged in an extramarital affair . . ." (Citations omitted; internal quotation marks omitted.) Id., 38.
The parties' marriage has been undeniably marred by the defendant's infidelity. Although her sexual relationship was not the sole cause of the breakdown, it did effectively terminate the marriage. The plaintiff's preoccupation with his career also led to the erosion and subsequent drifting apart, although to a much lesser extent. The defendant is primarily responsible for the breakdown of the marriage. The marriage is broken down irretrievably and is hereby dissolved.
See Fox v. Fox, Superior Court, judicial district of New Haven, Docket No. CV 28 35 69 (September 28, 1990, Mihalakos, J.) ( 2 Conn. L. Rptr. 488) (finding that the wife's infidelity and the husband's time consuming pursuit of his career jointly contributed to the breakdown of their marriage). See, e.g., Camara v. Camara, Superior Court, judicial district of New Haven, Docket No. CV 02 0464468 (April 4, 2003, Frankel, J.) (finding "that both parties are at fault for the breakdown of the marriage, however, addressing a slight more fault to the Wife due to her affair") (emphasis added); Fedeli v. Fedeli, Superior Court, judicial district of New London at Norwich, Docket No. 103886 (August 17, 1995, Vasington, J.T.R.) ("The defendant is most at fault for the breakdown of the marriage. Defendant's affair . . . though he claims it was not the cause of the marriage breakdown, certainly weakened any chance of reconciliation" (emphasis added)).
The Court has considered the criteria set forth in General Statutes §§ 46b-56c (educational support orders), 46b-81 (assignment of property and transfer of title), 46b-82 (alimony) and 46b-84 (parents' obligation for maintenance of minor child and order for health insurance coverage), as well as the testimony of the parties and the witnesses, the parties' exhibits, including all appraisals, claims of law and relevant case law in entering its orders. At the beginning of the case, the parties agreed to hire a joint, neutral appraiser but retained the right to reject such an appraiser's estimates. After hiring O'Toole Ewald as the neutral appraiser, and after receiving the appraisals, the defendant rightfully hired her own appraisers. Even by the plaintiff's own affidavit and based on the "neutral" appraisals, there is more than $147 million in assets to divide. An examination of the affidavits of both parties as they relate to the assets as well as the exhibits and testimony offered are not significantly disparate. In an effort to resolve valuation disputes and to be fair to both parties, the court is using an averaged value for those properties, vehicles and items for which the parties offered different valuations, and where appropriate, the court is using the assets at face value rather than considering the tax consequences to such assets.
The defendant testified when she was called by the plaintiff but did not testify in support of her own case. See Hartford Housing Authority v. Reyes, Superior Court, judicial district of Hartford, Docket No. SPH 87435 (January 24, 1997, Beach, J.) ( 19 Conn. L. Rptr. 381) (finding significance in a party's failure to testify on her own behalf in a civil case in which she is a named party). "It is most significant that [the party] failed to appear and testify: in the circumstance of a civil case, especially where the privilege against self-incrimination would apparently not be available because of the earlier dismissal, inferences may be drawn against [the party] for her unexplained failure to testify, and [the court has] so drawn them in this case." See also Olin Corp. v. Castells, 180 Conn. 49, 53-54, 428 A.2d 319 (1980) (finding that the court may draw an adverse inference against the defendant in a civil action who refused to testify in response to probative evidence).
This figure assumes that both SEER and Feil Golf have, at present, no value and also uses the bank account and retirement fund balances as of December 31, 2004, rather than the amounts stated in the plaintiff's November 2004 affidavit. The defendant's financial affidavit appraises the assets at more than $163 million.
See DaimlerChrysler Corp. v. Allard, 272 Conn. 1, 860 A.2d 1223 (2004), quoting Turgeon v. Turgeon, 190 Conn. 269, 274, 460 A.2d 1260 (1983) ("In assessing the value of . . . property . . . the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation"); Ellsworth v. Ellsworth, 6 Conn.App. 617, 620, 506 A.2d 1080, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986) ("The trial court has the discretion to accept whatever testimony and recognized appraisal methods it finds applicable; its valuation of property is reviewable only if a particular test or consideration was misapplied or overlooked"). See, e.g., Rolla v. Rolla, 48 Conn.App. 732, 747, 712 A.2d 440, cert. denied, 245 Conn. 921, 717 A.2d 237 (1998) ("In this case, the only testimony offered as to the value of the commercial building at issue was the defendant's testimony that it was worth between $2,800,000 and $3,200,000 and that he would buy it for $3,000,000, and the plaintiff's valuation of the building at $1,000,000 on her financial affidavit. Neither party called any appraisers or other experts to testify as to a fair valuation of the building, although the trial court allowed the defendant to be qualified as an expert for this purpose. The court was thus provided with little evidence as a basis for valuing the building. The court selected a value of $2,000,000, a figure halfway between the two valuations offered to it by the parties.").
The value of assets on the plaintiff's financial affidavits reflect hypothetical capital gains, tax liabilities and costs and expenses of sale. The court disregards such costs because at no time has the plaintiff suggested any intention of selling any of the assets. "Under our law, a trial court is not required to consider the federal tax consequences of its orders. We have held in several cases that `[t]here is no requirement in the applicable statutes which makes it mandatory that a trial court consider the federal tax implications of its financial orders.'" Rolla v. Rolla, supra, 48 Conn.App. 746. See also Bepler v. Bepler, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 0154815 ((September 17, 1998), Tierney, J.) (23 Conn. Law Reporter 155) (holding that where a defendant has not expressed any intention of selling his company stock in the future, it is "inappropriate for the defendant to deduct capital gains taxes from the stock value in his financial affidavit").
The Court's orders are divided in the following way:
Editors Note: The Appendices have not been reported herein.
Appendix 1 Parenting Order; Educational Support of Tyler and Clarissa Sosin; Alimony
Appendix 2 Division of Real Estate; Vehicles; Club Memberships; Business Assets; Jewelry and Gifts; Bank/Brokerage Accounts and Retirement Funds; Liabilities
Appendix 3 Unappraised Items
Appendix 4 Appraised Items
Appendix 4a Appraised Furniture — 640 Sasco Hill Road
Appendix 4b Appraised Fine Art — 640 Sasco Hill Road
Appendix 4c Appraised Items — Connecticut Storage Warehouse
OWENS, J.