Opinion
No. FA05-4004889S
September 21, 2007
Memorandum of Decision Re: Sealing
Pursuant to P.R. § 11-20A(c) and 25-59A(c), prior to and during the trial of this matter the plaintiff, defendant, and the Attorney for the Minor Children have submitted numerous written and oral motions filed with the court seeking orders sealing certain testimony and documents filed and/or lodged with this court.
The court conducted hearings during the course of the trial regarding the sealing of certain evidence including the DCF documents. Dr. Robson's two evaluations (the order for which was previously sealed by Hon. Kevin Tierney), psychiatric and medical records and confidential financial information from Tauck, Inc. The court reviewed all documents filed and/or lodged with this court during the course of the trial, the pertinent case law, and P.B. §§ 25-59A(c), 11-20A(c), 7-4B, and 7-4C.
The court noted that there is a presumption that documents filed with the court shall be available to the public. P.B. §§ 25-59A(a), 11-20A(a); Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 69-70 (2003); Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992); State v. Kelly, 45 Conn.App 142, 145 (1997); Preston v. O'Rourke, 74 Conn.App. 301 (2002); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1070-71 (3d Cir. 1984).
After reviewing the entire file including the previously sealed portions, hearing all of the testimony during the trial, examining all of the motions, affidavits and exhibits previously filed and/or lodged with this court, the Practice Book rules, and case law referred to in this Memorandum of Decision, the court makes the following legal conclusions:
(1) The plaintiff, defendant, and the attorney for the minor children have filed written and oral motions to seal documents and testimony, motions, affidavits, and exhibits in this dissolution action.
(2) This court has the authority under P.B. §§ 25-59A(c), 7-4B 7-4C, and 11-20A(c) and Conn. Gen. Stat. § 46b-11 to seal said motions, affidavits, testimony, and exhibits, to close hearings to the public and keep records and other papers confidential and not open to inspection except upon order of the court or judge for cause shown.
(3) Appropriate memorandums of law justifying the sealing have been filed by all litigants.
(4) This court concludes that a sealing order of those portions of the Memorandum of Decision dated September 21, 2007 discussing in great detail the sealed evidence (including testimony) is necessary to preserve interests, which are determined to override the public's interest in viewing such materials.
(5) This court has considered reasonable alternatives to such a sealing order.
(6) This court will enter a sealing order no broader than necessary to protect such overriding interests.
(7) The court has articulated the overriding interests being protected in this Memorandum of Decision Re: Sealing.
(8) The court has specified its findings underlying such sealing order in this Memorandum at Decision Re: Sealing.
(9) This court has specified the time, date, scope, and duration of this sealing order in the ORDER section of this Memorandum of Decision Re: Sealing.
(10) This Memorandum of Decision Re: Sealing shall not reveal any information entitled to remain confidential, thus this entire Memorandum of Decision Re: Sealing shall not be sealed. There has been no hearing in this matter on the sealing of a portion of the court's decision either in court or in camera, therefore there is no transcript.
The court finds that no hearing is necessary because the underlying evidence and testimony referred to in the court's Memorandum of Decision has been previously sealed.
FINDINGS
In accordance with P.B. §§ 25-59A(c) and 11-20A(c), the court hereby articulates the overriding interests being protected, as well as its findings, underlying the order.
The motions, affidavits, exhibits, and testimony have been filed and/or lodged by the litigants in support of a dissolution action pending in this court between the parties, which was commenced by a complaint dated May 12, 2005 and the defendant's counterclaim. The complaint and counterclaim request orders relating to the marriage of the parties and their four minor children, now ages 10, 8, 7 and 5.
As Judge Tierney found in his Memorandum of Decision Re: Plaintiff's Ex Parte Application to Seal Pleadings, dated August 3, 2002, as Amended on August 4, 2005:
"[a] family relations matters, as the present case is, generally do not relate to matters of public safety or involve matters of national security, where the public disclosure of information could override the need for privacy. The present case is a private matter between private people." Welch v. Welch, 48 Conn.Sup. 19, 27 (2003); Wendt v. Wendt, 45 Conn.Sup. 208 (1996), petition for review by Dow Jones company denied by the Appellate court (1997). In addition issues involving minor children have historically been protected from public dissemination. State v. Davis, 48 Conn.Sup. 147 (2003) (35 Conn. L. Rptr.); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). Finally the privacy rights of all six Tauck family members are entitled to great protection. Matza v. Matza, 226 Conn. 166, 181 (1993).
The sealed evidence discussed in this court's decision includes evidence from DCF sealed pursuant to Conn. Gen. Stat, § 17a-28(b), sealed testimony and reports from Dr. Robson (previously sealed by J. Tierney and this court), psychiatric and medical records and financial information from Tauck, Inc. (previously sealed by J. Tierney and this court), and by a confidentiality agreement executed by the parties). Tauck, Inc. is a privately held company owned by the defendant and other members of his family. As it is one of the leading travel tour companies, its finances should not be made public and available to its competitors.
This court concludes that there are four interests that override the public's interest in viewing the portions of its decision that discuss sealed motions, affidavits, exhibits and testimony:
(1) The parties' right to continue to litigate their marital problems in this private matter between private people;
(2) The right of the plaintiff and defendant to prevent the exposure of the four minor children to public scrutiny. The commentary to Conn. P.B. § 25-59A makes it clear that it was intended that pseudonyms, in place of the name of a party or parties, not be permitted in family cases; and
(3) The individual privacy rights of both the plaintiff and defendant including but not limited to, privacy to their psychiatric and medical records, disclosure of which may discourage parties from seeking treatment.
(4) The rights of Tauck, Inc. not a party to this action, to the confidentiality of its financial information.
In accordance with P.B. §§ 25-59A(c) and 11-20A(c) the court hereby makes the following findings. The plaintiff and defendant were married on August 19, 1995. The parties have four minor children issue of the marriage, now ages 10, 8, 7 and 5. The defendant and the minor children all reside in Westport, CT, and the plaintiff resides in Fairfield, CT. The plaintiff filed a complaint dated May 12, 2005 seeking a legal separation and claimed orders of custody of the minor children, child support, educational support orders for the children, alimony, and an equitable division of the parties' assets. Several cross complaints were filed. The matter has been pending in this court for over two years and four months. The parties and the minor children are all represented by counsel.
This matter was tried before the Regional Family Trial Docket, on a referral from the Stamford/Norwalk Judicial District, on various days between January 8th and June 25th, 2007, then July 18th, 19th, and 20th, and concluded on August 13th, 2007. The trial lasted 86 days. The motions, affidavits, exhibits, and testimony produced during the trial, illustrate that the parties hereto are involved in a high conflict divorce fraught by allegations of child pornography, child sexual abuse, drug abuse, and alcoholism. From this court's experience in litigation of family disputes, such controversies cause further disruption in the parties' ability to parent their minor children, and the children's interaction with the outside world with the controversy surrounding the family. Relief requested by the parties in their Claims for Relief include sole custody, supervised visitation, substantial sums of alimony, and child support presumably supported by the husband's earnings from Tauck, Inc. Public disclosure of the Memorandum of Decision discussing the exhibits and testimony supporting and disproving the allegations of possession of child pornography, sexual abuse of minor children and the parent's psychiatric and medical records will further expose the minor children to even greater trauma than already suffered by them due to their parents undergoing a dissolution of their marriage. This order is based on P.B. § 25-59A.
ORDER
The court hereby enters the following orders:
(1) The following documents are granted a Level 3 sealing and will be so noted by the Clerk of the Superior Court with the standard sticker; those portions of the court's Memorandum of Decision that refer to the evidence from the DCF exhibits and/or testimony, Dr. Robson's reports and/or testimony (pages 30-71), previously sealed psychiatric and medical records (as indicated in the decision) and the financial information regarding Tauck, Inc. (portions of pages 98-100).
(2) This order is effective at 5:00 p.m. September 21, 2007 and will continue until further order of this court.
(3) All previous orders entered regarding the sealing of pleadings, documents, testimony and/or evidence shall remain in full force and effect.
(4) This Memorandum of Decision is in compliance with the last sentence of P.B. § 25-59A(d).
MEMORANDUM OF DECISION
Sidney Horowitz, Ph.D., a psychologist who has testified in Connecticut Family Court numerous times, made a statement about divorce that is particularly applicable to this case "they fell in love; they had children; their relationship became derailed; they felt betrayed; their hearts were broken; they wanted to love and protect their children from the hurt they felt the other caused them to feel. They entered the divorcing process with family and legal cheerleaders; sides were taken; stakes were raised; righteous indignation was fueled; inner fears were stoked." These extreme feelings encouraged the extreme reaction of Mrs. Tauck. Since her pregnancy with her last child, she felt ignored by her husband and suspected he was either having an affair or in the alternative, was homosexual. As a result, she snooped in his computer and found his personal diary which contained information that devastated her. Rightly or wrongly, she concluded he was making a case against her that she was a poor mother, mentally ill, and addicted to alcohol and drugs. In her desperation, she or someone on her behalf, planted child pornography on her husband's broken laptop while he was away on business in Tahiti. Mrs. Tauck, or someone on her behalf, deleted the internet browsing history from the machine so that no future user of the computer would be aware of the images that lay in the temporary internet cache.
The plaintiff then commenced this divorce action and accused her husband of possession of child pornography and of sexually abusing the minor children. Mrs. Tauck never wavered from her allegation that her husband was a pedophile and possessed child pornography, even when the overwhelming evidence indicated the vast majority of questionable images were downloaded on a day Mr. Tauck was in Tahiti, did not have the computer with him, and did not have remote access to the computer.
As a result of Mrs. Tauck's actions, two of the minor children were put through MIT interviews for sexual abuse, DCF became involved with the family, all of the children began therapy, the entire family home was wired for video and sound so the children and parents were forced to live their lives in a fishbowl, supervisors were hired to police both parents' access to the minor children, both parents submitted to random drug and alcohol testing, an army of lawyers was hired by both parents, $13 million in costs and legal fees were billed, and 86 trial days were consumed. This case represents not a victory for either parent but a tragedy for everyone involved.
The parties spent in excess of $13 million dollars on legal, expert witness fees and costs this case not including the emotional toll on the litigants and their children. At times, the behavior of counsel during the trial was immature, boorish, unprofessional, disrespectful, and inconsiderate of each other and the court. This court's patience was tried on a daily basis and admonishments were a commonplace. During the testimony of certain witnesses, the objections were so fast and furious the question had to be repeated several times because the witness could not remember the question after the numerous objections. This type of lawyering unduly extended the length of the trial and made the process exceedingly unpleasant for all involved. The case could have been completed in less than half the 86 days if not for the overaggressive behavior of some of the lawyers involved. However, the court would note that the behavior of counsel had no effect on the ultimate decision of the court.
In the interest of fairness, the court would note that the financial issues in the case, involving assets in excess of $40,000,000, were tried in less than two weeks in a courteous and professional manner. In addition, the Attorney for the Minor children's representation of the minor children was impeccable and performed without any hostility or animosity.
This matter was tried before the Regional Family Trial Docket, on a referral from the Stamford/Norwalk Judicial District, on various days between January 8th and June 25th, 2007, then July 18th, 19th, and 20th, and concluded on August 13th, 2007. The trial lasted 86 days. Numerous hearings, on scores of days, had already been consumed with pendente lite hearings in the local district prior to the case arriving at the RFTD. The Plaintiff, Defendant, and a plethora of lay and expert witnesses testified, and copious exhibits were introduced. The court file itself is comprised of 42 volumes and counting. During the course of this marathon trial, approximately 226 additional pleadings were filed after the opening day. Those pleadings roughly broken down encompass 34 Motions to Quash or Protective Orders, 22 Objections, 19 Motions for Contempt, 9 Motions for Attorneys Fees, 17 Motions for Discovery and Motions to Compel, 7 Motions to Reargue, 7 Motions for Continuances, 6 Motions for Sanctions, 5 Motions for Mistrial, 4 Motions to Preclude, 4 Motions for Modifications of Custody/Access, 2 Motions for Stay, 2 Motions for Immediate Hearings, 1 Appeal, 2 Writs of Error, and 69 miscellaneous and sundry motions.
The court has considered all of the evidence presented to it and carefully considered the respective criteria for orders of custody, visitation and access, child support, health insurance, life insurance, payment of the children's medical expenses, alimony, property settlement, division of debt and award of counsel fees. The court makes the following findings of facts and orders:
The parties were married on August 19, 1995, at Kamloops, British Columbia, Canada. The court finds that it has jurisdiction over the marriage. One of the parties has lived in the State of Connecticut for more than one year prior to bringing this action. The following minor children have been born to the parties since the date of the marriage:
Colin Fraser Tauck, date of birth, November 27, 1996;
Curtis Russell Tauck, date of birth, December 6, 1998;
Charles Joseph Tauck, date of birth, September 13, 2000; and
Alexandra Louise Tauck, date of birth, July 5, 2002.
No other minor children have been born to the wife since the date of the marriage. The parties are not receiving state assistance. The court finds that the marriage between the parties has broken down irretrievably and there is no reasonable prospect of reconciliation.
This action was brought by the wife in May 2005. The couple attempted to reconcile between May 2005 and late July 2005. The reconciliation failed and on July 27, 2005, Mrs. Tauck, the minor children, and assorted nannies, babysitters and others began a chaotic odyssey up and down the east coast for approximately one month. To justify her departure from the family home, Mrs. Tauck claimed that her husband viewed child pornography over the Internet. Additionally, she alleged that he sexually abused two of the minor children. Mr. Tauck had no advance notice of his wife's and children's departure from the family home and did not know where they were or how long they would be gone. During July and August 2005, Mrs. Tauck never spent more than 3 days in one place; during the trek, she rented a private jet to take her entourage to Myrtle Beach. Also during this sojourn, Mrs. Tauck was admitted to a hospital overnight for ingesting pills and alcohol (this incident is discussed in more detail below).
Mr. Tauck had initially planned a trip to Costa Rica with the two older boys in late July 2005. This trip was effectively canceled by Mrs. Tauck's unannounced departure with the children. Mrs. Tauck periodically called her husband and allowed him to speak to the children. During his wife's absence, Mr. Tauck had both his and Mrs. Tauck's computer hard drives copied. He testified that he copied the wife's hard drive in an attempt to discover her whereabouts. Additionally, he hired private investigators to search for her. He became aware that she was staying with friends, Laurie Wright and Neil Rubin. In late August 2005, he resorted to self-help with the assistance of family and friends and removed the boys from their mother's custody in late August 2005. This court viewed a videotape of the taking of the minor children by the father; it was traumatic for the children to be removed in such a manner. However, it was equally traumatic for the wife to remove the children from the family home, take them on a chaotic journey, and keep them from their father for nearly a month.
After August 2005, both parties took the gloves off and began the divorce battle in earnest. The court finds that both parents were vigorously represented by their respective trial counsel. The husband and wife hired not one lawyer each but several law firms each and eventually spent close to $13 million in legal fees, costs and expert witness fees. DCF, the local police, and federal authorities were involved in this action, and a federal magistrate entered orders to have computers (home and business) and data storage devices duplicated so they could be examined for the presence of child pornography. This couple fought tooth and nail over every possible issue, generating new issues whenever possible. There were days that the elicitation of testimony was substantially eclipsed by the raising of objections. For example, during the testimony of the court appointed evaluator, Kenneth Robson, M.D., plaintiff's counsel objected 119 times on the first day of testimony, 172 times on the second day, and 75 times on the third day.
Discovery, involving computer equipment, was a major issue and an impediment to the expedition of this case. One of the husband's attorneys, Phillip Russell, was in possession of several computer hard drives that were not turned over until December 2006 and early January 2007. Attorney Russell and an associate testified and accepted full responsibility for the temporary loss of the hard drives. Pendente lite Porter/Daubert hearings were begun on the issue of hair follicle testing for drug and alcohol abuse and the plaintiff protested the utilization by the custody evaluator of the Abel Sexual Preference Inventory (one of the numerous components of the psychological evaluation). No stone was left unturned; the landscape was littered — a virtual battlefield.
The parties both leveled serious charges against the other: Mrs. Tauck alleged that her husband viewed child pornography and sexually molested the minor children. Mr. Tauck alleged that his wife was an alcoholic, abused prescription drugs (some purchased over the internet), and suffered from mental health illnesses that made her unfit to have primary custody.
Despite the smoke and mirrors created by the parties to make this case appear incredibly complex, the case boils down to four simple issues:
1. Did the defendant possess child pornography?
2. Did the defendant sexually abuse any of his children?
3. Is the wife an active alcoholic?
4. Does either parent suffer from any mental health issues that impair his or her ability to parent?
Mrs. Tauck's behavior and conduct throughout the trial were quite troubling and of grave concern to this court. She was frequently late to court. Court records reflect that she was absent from the proceedings on January 16 and 18, failing to make her attorneys aware of the reason for her absence. The court recessed early due to claimed illness on January 17 and June 4. She was late for court on the following dates: February 14, 26, 27, March 1 (due to an automobile accident discussed later), April 12, May 1, 10, 11, 16, June 11, and 12, 2007. As a result of Mrs. Tauck's inability to appear in court on time consistently, the court has little confidence that she has the ability to get the children to school, doctors appointments, and to extracurricular activities on time.
Mrs. Tauck was not present in court on January 16 or 18, due to an alleged injury to her nose sustained on December 28th, 2006 at approximately 6:30 p.m., when she walked into a glass door (Exhibit 646). She testified she was injured as follows "I was walking briskly. I looked down at something quickly that I was holding. It was a real estate brochure. And as I walked up, I slammed. It was invisible to me." (Tr. January 22, 2007, p. 5, ln. 16-19.) She testified that the first time she saw a doctor for the injury was January 5, 2007. The trial commenced on January 8, 2007; through that week, the Court observed no visible injury to Mrs. Tauck's nose. However, on January 17th, her nose appeared to be red and bruised on both sides. Additionally, she admitted under oath that she had two of the children overnight with her at her separate Fairfield home on January 17th in violation of court orders. The court adjourned early on January 17, 2007 due to the plaintiff's alleged fatigue and inability to testify. Instead of going home to rest, she chose to stop by her lawyer's office, then stop at the Westport marital abode, pick up two of the children and drive them to her Fairfield home where they remained unsupervised (court orders at this time required both parents to be supervised at all times when with the children). The three older children arrived at school on January 18th at 10:45 a.m. despite a start time of eight o'clock. On Friday, January 19th, 2007, Mrs. Tauck had an appointment to see a neurologist at 10 a.m. but never arrived for the appointment.
Mr. and Mrs. Tauck initially met in 1987 when Mrs. Tauck was working for Tauck World Discovery as a sales reservationist. The couple did not begin to socialize until Thanksgiving 1992 when they met at an AA meeting.
The plaintiff wife is 47 years old and in relatively good physical health. She was born in Greenwich, CT and raised in Westport, CT, along with one brother. She attended Fairfield University and graduated from Sacred Heart University in 1996 with a B.A. in Social Work. She received her M.S.W. from Columbia University in 2002.
Mrs. Tauck was previously married in 1985 and divorced in 1988. There were no children of this marriage.
Mrs. Tauck has been employed as a waitress, chef, and operated a bakery and catering business known as the Bakers. She testified that at one time "I had a nice career going in NY, and I was out . . . I was in advertising." (Tr. 1/8/07, p 11, ln. 24-27) Mrs. Tauck worked on the Town of Westport's 9/11 crisis intervention team. She was also a member of the Board of Directors of the Mid-Fairfield Child Guidance Clinic in Norwalk, Connecticut (where her psychiatrist, Andrew Lustbader, M.D., is Medical Director). More recently, she has volunteered at her children's school, teaching art history once a month and chaperoning field trips.
Mrs. Tauck has suffered from alcoholism throughout most of her adult life; it was a recurring theme throughout the trial. She testified that her father was an alcoholic and that when she was working in New York City she felt herself drinking more and more, eventually coming to believe that she was an alcoholic as well. Mrs. Tauck's initial attempt at alcohol rehabilitation was brought about by an intervention organized by her brother and a friend. She checked into Seafield, a rehabilitation program located in Westhampton, NY, for 30 days. She testified that she stopped drinking January 24, 1987, the precipitating event being a pregnancy with her first husband. She felt that due to the drinking she shouldn't have a baby. Mrs. Tauck testified that she was then sober until approximately 1 month after the birth of her last child in 2002. She testified that wine made her more relaxed for marital intimacy with her husband and less stressed-out by her marital problems.
From the summer of 2002 through March 2007, the wife had multiple and repeated relapses with alcohol. Many of her relapses are detailed in the progress notes of her primary care physician, Howard Eisen, M.D. (Sealed Exhibit DC-200), and are far more numerous than she admitted to on the witness stand. According to the testimony at trial, during this period of time, she sought various treatments for her alcohol addiction including: Sierra Tucson an in-patient rehabilitation facility; Columbia Presbyterian in-patient rehabilitation; AA meetings; her primary care physician, Dr. Eisen; Michael Newman, an alcohol counselor (who never testified and whose credentials are unknown to the court), and saw psychiatrists Andrew Lustbader, M.D. and Joseph D'Apice, M.D.; as well as various mental health professionals at the Yale Post Traumatic Stress Center.
On August 13, 2003, at the suggestion of Mr. Newman, Mrs. Tauck entered Sierra Tucson, a rehabilitation facility in Tucson, Arizona (Sealed Exhibit 117-39). She was admitted to the facility for chronic relapse into alcohol abuse; however, after intake, she was admitted to the trauma program. The Sierra Tucson medical history (Sealed Exhibit 1 17-39) [REDACTED] She was discharged from Sierra Tucson against medical advice (AMA); she felt she needed to be home to address one of her children's anxiety attacks.
After her discharge from Sierra Tucson in early September 2003, Mrs. Tauck attended AA on a daily basis for a short period of time, then relapsed and began drinking again. She testified that she began drinking every night around 5:00 to 6:00 p.m. and drank enough to become intoxicated. She testified that the minor children observed her intoxicated only once or twice. Once, one of the older children became upset because his mother was unable to play a game of "Battleship" with him. As a result of this relapse, Mrs. Tauck called Dr. Lustbader, her psychiatrist, who suggested she go to the Yale-New Haven Hospital PTSD Clinic.
On October 19, 2003, Mrs. Tauck was taken to the Norwalk Hospital emergency department by Michael Newman because she felt overwhelmed and had slashed her wrists with a box cutter. (Exhibits DC-72f or DC-117-43.) During her testimony at trial, Mrs. Tauck claimed she scraped her wrist with a pair of scissors but the hospital records reflect the use of a box cutter. Exhibit DC-72f or DC117-43 is the Norwalk Hospital emergency department record; it indicates the plaintiff stated "I did not want to kill myself — I'm just frustrated," and indicates she was sexually abused as a child.
On November 6, 2003, Mrs. Tauck was admitted to New York Presbyterian Hospital, stating on admission "I relapsed on alcohol and am having difficulty concentrating." (Exhibit DC-191.) She was discharged on November 10, 2003, again against medical advice. Her Axis I diagnosis was Alcohol Dependence, Depressive Disorder NOS; her Axis II diagnosis was listed as Borderline Personality Disorder.
Mrs. Tauck testified that she was in therapy at the Yale-New Haven Post-Traumatic Stress Disorder (PTSD) Clinic for two months or less. However, the exhibits (Sealed Exhibit DC-199A) at trial indicated she began therapy sometime in late October 2003 and terminated therapy March 3, 2004. [REDACTED] (Exhibit DC-204.)
Mrs. Tauck began psychotherapy with psychiatrist Joseph D'Apice, M.D., in late March 2004, and continued seeing him until late October 2004 (Sealed Exhibits DC-203 and DC-203A). [REDACTED] The treatment notes [REDACTED] indicate that Mrs. Tauck relapsed into drinking alcohol again and again:
[REDACTED]
Howard Eisen, M.D., is the plaintiff's primary care physician (on retainer for $17,000 per year) and his progress notes were introduced as Sealed Exhibit DC 200 These progress notes reflect the repeated consumption of alcohol [REDACTED]
On January 14, 2005, Mrs. Tauck was admitted to the Norwalk Hospital emergency department for an overdose of Tylenol combined with alcohol (Exhibits DC-72d and 117-43). The hospital records indicate that she took seven tabs of Tylenol to sleep two hours prior, denied suicidal ideation, had difficulty sleeping, and took Tylenol and two drinks of vodka.
On August 11, 2005, the plaintiff was admitted to the Westchester Medical Center in Valhalla, New York as a result of drinking alcohol and taking prescribed medication. [REDACTED] (Sealed Exhibit DC 183-A.)
On January 30, 2007, Mrs. Tauck testified in court, under oath, that the last time she drank alcohol was August 8th or 9th, 2005. On March 13th, 2007, again while under oath, the plaintiff admitted to the consumption of alcohol in increasing amounts and frequency from sometime in December 2006 through the course of this trial. Evidence was introduced that she purchased vodka at a package store in Meriden, CT (Exhibit DC-192), on the way home from court and went out for drinks with friends in January 2007. The plaintiff testified that Ruth Perez, one of the supervisors, and Drs. Lustbader and Loeb were aware of her alcohol consumption for at least several weeks.
On March 13, 2007, Mrs. Tauck testified that she spent the evening of February 28, 2007, at her Fairfield home (Tr. March 13, 2007, 114-115). She admitted that Wednesday February 28th, and overnight until Thursday morning, was her parenting time with the minor children but that they spent the night with nannies and supervisors at the Westport home instead. The court notes this was the mother's first night with the children in nine days because she failed to make herself available for an alcohol/drug test by John Magnano (court appointed alcohol/substance abuse tester) on February 19, 2007. Pursuant to the pendente lite orders, she automatically lost her parenting time as a result. She admitted that she had been drinking wine from 7 p.m. the evening of February 28, 2007 (TR page 117, line 23-24, TR page 118 lines 24-25, TR page 119). The plaintiff also admitted she was again drinking at the Fairfield home the evening of March 1st while her children stayed with a nanny and supervisor at the Westport home (Tr. March 13, 2007, p. 124, ln 1-20).
Astonishingly, in the third month of trial, while under the microscope of the court, Mrs. Tauck had a single car automobile accident at approximately 7:30 a.m. the morning of March 1, 2001, on her way from Fairfield to Westport to get dressed for court. Although Mrs. Tauck admitted having a car accident, she denied she hit a fire hydrant and a traffic sign prior to hitting a telephone pole (the police report has a diagram of the accident that clearly shows that a traffic sign, fire hydrant, and telephone pole were all hit by the wife's automobile (Exhibit 184, p 3)). When Mrs. Tauck arrived in court at approximately noon that day, she explained her tardiness by advising the court that another vehicle had run her off the road. On March 13th, 2007, the plaintiff testified again regarding the accident "I just remember a car coming. I slid." (Tr. March 13, 2007, p 130, ln 11.) She told a witness to the accident, Linda Durakis, that the accident was caused by black ice while telling the police she was distracted by a ringing cell phone. The court finds none of the various explanations for the accident given by the plaintiff credible.
Mrs. Durakis testified as a witness to the accident on March 1, 2007. She testified that she saw the plaintiff's car in the middle of the road weaving and driving faster than other cars in the area. She observed Mrs. Tauck go through a stop sign, hit a fire hydrant, and hit a traffic sign. Mrs. Durakis' automobile went around a corner and then she observed that Mrs. Tauck's car had hit a telephone pole. She got out of her car and went to the driver's door to assist the plaintiff. Mrs. Durakis testified that Mrs. Tauck was slurring her words and smelled of alcohol. The plaintiff asked Mrs. Durakis if she saw the black ice. Mrs. Durakis assisted Mrs. Tauck out of the car and then went to her own home to obtain leashes for the four dogs in Mrs. Tauck's car. When she returned, she observed Mrs. Tauck walking towards her home. Mrs. Durakis testified that Mrs. Tauck was walking irregularly, meaning not in a straight line.
Westport Police Officer John Parisi testified that he investigated the accident. He arrived at the Westport home approximately 20 minutes after the accident, during this time Mrs. Tauck took a shower. Mrs. Tauck told Police Officer Parisi that her cell phone rang while she was operating her vehicle, she looked down at the phone as it was ringing and was distracted, thus causing her to drive the car off the roadway (Exhibit DC-184).
John Magnano testified on March 13, 2007, that Mrs. Tauck failed to make herself available for alcohol testing on March 1, 2007 (Exhibit DC-186). This was a violation of a previous agreement, thus resulting in an automatic loss of access to the children.
On March 7, 2007, during the trial, Mrs. Tauck admitted herself to the inpatient alcohol rehabilitation program at High Watch Farm (Exhibit DC-214A), an alcohol treatment center in northwestern Connecticut. She was discharged against medical advice on March 9, 2007. The discharge notes reflect that she was not compliant with the program activities or rules nor cooperative or positive in interactions with other guests and staff. The discharge note further reflected that the plaintiff exhibited neither an awareness nor acceptance of her addiction nor a commitment to a self-directed recovery plan. The progress note for March 7, 2007, states "spoke w/guest explain the expectations and how important it is to follow the rules and remain focus on why she's here and to stay away from the phone and lawyers and try to refrain from who she is and all the drama around the case." On the progress note for March 9, 2007, it is noted that "she was upsetting the girls around her with her graphic images of her 'pet-a-file' [sic] husband stories and graphic images of the sexual abuse of her children and she had to refrain from her 'legal' issues and her 'notoriety' and focus on her 'relapse prevention issues.' She had to stay off the phone with lawyers and refrain from screaming and scaring the others."
On March 15, 2007, after one of many motion hearings during this trial, the court ordered specifically that "the plaintiff shall attend a minimum of six AA meetings per week, and shall provide the AMC with proof of her attendance on a daily basis. Proof shall include date, time, and location of the meeting and shall provide a first name and telephone number for the person signing." A May 14, 2007 court order stated that "neither parent shall sleep in the same bed or room with any of the minor children." On July 20, 2007, after three additional days of testimony on motions, the court found the plaintiff in contempt of the above captioned orders, finding that the plaintiff had failed to attend six AA meetings a week, failed to notify the AMC on a daily basis of her AA attendance, and found that on many occasions Mrs. Tauck was observed by the supervisors with the minor children in her bed sleeping either late at night or early in the morning. The court found that Mrs. Tauck had a positive alcohol test from a urine sample submitted for testing on June 26, 2007 (the day after the last day of the custody portion of the trial). The court expressed grave concern with the report of Mr. Dennis Puebla, charged with the professional supervision of the parties' access (Sealed AMC Exhibit 78), [REDACTED] The daily reports of the supervisors (Exhibits DC-281A-E) indicated that mother's parenting responsibilities were substantially being performed by Mrs. Tauck's employees rather than by her. The children had missed summer school and other activities. The children had been noted staying up exceedingly late, on several occasions after 11 p.m. On one occasion, Mrs. Tauck's boyfriend put the children to bed when she was asleep.
The court found that it was in the best interests of the minor children that Mrs. Tauck achieve sobriety and that her attempts at achieving sobriety, by attending AA meetings and working with Dr. Lustbader as previously ordered, had failed. The court terminated the then-existing parenting plan and ordered that Mrs. Tauck must successfully complete an inpatient program of 28 to 30 days before the court would consider her access to the minor children again.
Mr. Tauck is 50 years old and in generally good health although he has smoked a 1/2 pack of cigarettes per day for thirty years. He attended Salisbury prep school and received a bachelor's degree from Lehigh University with a major in finance. It took the defendant five nonconsecutive years to graduate from Lehigh. He attended Lehigh for four years ending in 1979, then returned in 1994 to complete elective credits in order to obtain his degree.
The defendant has served as an officer and director of the family owned and operated Tauck Inc., a major travel corporation. The highest position he held was president of Tauck Holding. He has traveled extensively throughout the world for both business and pleasure including Croatia, Japan, Greece, the United Kingdom, Ireland, France, Italy, Montenegro, India, Australia, Mexico, New Zealand, Peru, Holland, Belgium, Scotland, Spain, Portugal, Austria, Germany, Poland, Russia, Estonia, Latvia, Tanzania, South Africa, Kenya, Israel, Nepal, Tibet, Hong Kong and Thailand.
Mr. Tauck's mother and father divorced in 1998 and his father has since remarried. Mr. Tauck is the third of five children in his family. There is a history of alcoholism in his family and his mother suffered from an unknown psychiatric condition while she was in her 40s. Mr. Tauck is closest to his youngest sister, Kiki (Kirsten Mahar), who has children the same ages as the Tauck children. Mr. Tauck was diagnosed as having Attention Deficit Disorder and has been treated with various medications without success. Mr. Tauck grew up in Westport, Connecticut, and denied any sexual molestation or abuse in childhood. He commented that his family style regarding nudity was "pretty open." Mr. Tauck denied any pedophilic contacts or homosexual interests or relations.
Mr. Tauck drank his first beer at the age of 12 and first became intoxicated in the eighth or ninth grade after consuming three or four beers. When he was at the Salisbury prep school, he smoked marijuana and while at Salisbury and Lehigh University he drank and used marijuana on weekends. During college, he also used cocaine and used a hallucinogen on at least one occasion. He continued to drink and use cocaine throughout the 1980s intermittently, although at times his consumption was substantial. Mr. Tauck was arrested for DUI in Westport in 1987 and 1988, and two years later in Vermont. He was treated for alcohol abuse after the initial DUI and subsequently treated at Sierra Tucson in 1992. He has attended AA intermittently. He admitted to Dr. Robson that in 1992 he was cocaine addicted and at one point suicidal.
During the early part of the marriage, Mr. Tauck was employed at Tauck Tours as General Manager and subsequently as co-president with his sister, Robin. He generally worked five days a week from eight or nine a.m. until five or six p.m. and maintained that schedule until 2000-2001. In 2003, when Mrs. Tauck went to Sierra Tucson for alcohol rehabilitation, Mr. Tauck took a leave of absence from his job. By March 2004, Mr. Tauck was inactive for the most part from employment at Tauck, Inc. However, he continued to act as vice chairman of the US Tour Operators Association and interfaced Tauck World Discovery with US Tour Operators Association. The last time he was involved with Tauck World Discovery on a daily basis was August 2003 when Mrs. Tauck left for Sierra Tucson.
Mr. Tauck admitted that he installed spyware on his wife's computer in the spring of 2003 or 2004. He could not recall where he got the spyware program or the name of the spy program. Once the program was installed, it showed e-mail received and sent, recorded keystrokes, and showed Internet activity. Mr. Tauck admitted using his wife's computer several times during the spring of 2003 or 2004. He never told his wife about the spyware and he may have asked the Tauck IT department to remove it but doesn't recall doing so.
According to Mr. Tauck, the family has had household help, including baby nurses, nannies, and housekeepers, since the children were born. Testimony at trial indicated that the help usually included two women who acted as nannies/housekeepers.
Mr. Tauck is currently engaged to Jennifer Buchanan, whom he has dated since the spring of 2006. Ms. Buchanan had met the children five or six times at the time of Mr. Tauck's testimony.
Mr. Tauck freely admitted that he has viewed adult pornography since he was in his early teens. He testified that his interest in pornography waxed and waned over the years and he considered his interest in pornography to be normal. He testified he did not view pornography when he was involved in a healthy sexual relationship with a woman. The defendant testified that his original pornography collection consisted of approximately 15 DVDs acquired over a five-to six-year period dating back to 1997. He testified that he disposed of this collection in August 2003 with the help of a friend. However, he admitted purchasing pornographic DVDs in 2005 with cash at an establishment in Norwalk, CT. He denied purchasing any pornography on the internet or with a credit card and no evidence was introduced of any purchases. Mr. Tauck testified he used Toshiba I (his original laptop) and Toshiba II (replacement laptop purchased in February 2005 after monitor malfunction in Toshiba I) to view pornography on the internet. He could not recall if he used the computers to view pornography after May 25, 2005. In addition, he admitted that he viewed pornography on the Tauck, Inc. computer in 2005.
Mr. Tauck admitted that he took photographs of his children without their clothing (Sealed Exhibit P-245). He denied that these images were pornographic, testified that his wife was present when many of the photographs were taken and voiced no objections, and stated that some of the photographs had been framed and displayed at the family home in Lake Placid, NY (Sealed Exhibit DC-153). The defendant testified that during the discovery phase of litigation, he produced numerous CDs of family photographs he had taken over the years. He estimated he had taken 3,500 to 5,000 photographs, including many pictures of the children, in addition to the 23 that were introduced into evidence.
Mr. Tauck has seen a psychiatrist, Jeffrey Lustman, M.D., for Attention Deficit Disorder since approximately September 2003; Dr. Lustman testified at trial and his detailed progress notes of each appointment were entered into evidence.
The defendant testified that he had kept a journal on his computer since approximately 1997. He recorded events in his life, and his thoughts regarding those events. Mr. Tauck neither told his wife about his journal nor showed it to her; she was outraged when she discovered it on his computer in the spring of 2005. It was discussed in a joint therapy session in June 2005.
Mr. Tauck met with a divorce attorney in November of 2003 and had a friend pay for the consultation so his wife would not discover the consultation.
Mr. Tauck testified, and his passport (Exhibit DC-207) verified, that he was in Tahiti on a business trip from May 1 through May 10, 2005. This time period is critical in relation to the allegations of child pornography made by the wife.
In August 2005, Mr. Tauck retained Attorney Philip Russell for criminal matters related to charges of criminal trespass related to his entry on the property of Laurie Wright to obtain his children in late August 2005. Attorney Russell had possession, custody, and control over a number of Mr. Tauck's computer hard drives since late August or early September 2005. The defendant testified that he gave Attorney Russell three hard drives but did not recall the specific date. One hard drive was from his new Toshiba II 100GB computer and 2 hard drives were copies of hard drives made by Matthew Bickford in late July or early August 2005. One of the hard drives was a copy of Mr. Tauck's Toshiba I hard drive and the other was a copy of the wife's Toshiba Satellite hard drive. The defendant testified that bad filing and protocol, as well as Attorney Russell's office practices, prevented the location and release of the hard drives to the plaintiff. He testified that he began discussing the location of the hard drives with Attorney Russell in November 2006 because he knew they had been requested by the plaintiff. Mr. Tauck called Attorney Russell multiple times and eventually the hard drives were found in a filing cabinet over a period of time between December 2006 and January 2007.
In addition to copying the hard drives of the family computers, Mr. Tauck asked Mr. Bickford to create a CD of his wife's file directory and the files in the folder labeled "My Documents." He testified that he made this request in early August 2005 in an attempt to locate his wife and children.
On April 25, 2007, Mr. Tauck was asked to describe his children for the court. He described Colin as a very bright child, a creative, logical and abstract thinker. Mr. Tauck testified that Colin often uses vision and touch, e.g., building Legos. Father also testified that Colin is goal oriented and doesn't always stop and smell the roses on the way to the ultimate goal. He testified that Colin is an anxious child whose anxiety waxes and wanes. Father testified from the time Colin was born he has always had a great sensitivity to other people and to other peoples' feelings. He gave an example of two-year-old Colin running around a play gym hearing a baby cry on the other side of the room and he wanted to help the little girl who fell off the slide. Mr. Tauck testified that with his goal orientation, Colin can be very stubborn; also that he's a great negotiator. He testified that Colin likes to have fun, and loves to try and explore new things. Mr. Tauck testified that Colin loves music and is more of an indoor-oriented child than an outdoor child. He loves to play computer games, video games, watch TV, likes basketball and baseball, and likes riding his bike when the weather is warm. He loves to ski, snowboard, and fish. He enjoys banana boating and hanging out with his friends. He likes building things, tae kwon do, and really loves cars and the Yankees, especially Derek Jeter. Mr. Tauck felt that Colin's strength, educationally, was in the areas of math and science, and he is discovering with enthusiasm his real intellectual capacity. Socially, Colin is better one on one and with smaller groups than in large crowds. Father did not think his son had found a real strength in terms of his identity in a larger group. Father felt the areas Colin could use improvement in were responsibility, working independently and organization.
Mr. Tauck described Curtis as having a spirituality about him. Curtis has a great connection with the natural world, with all of nature's little critters and animals. He is a quiet person with great sit-ability and calmness about him. Father explained that there is a great depth to Curtis; he's a thinker and a dreamer and felt the expression "still waters run deep" would be a great description for Curtis. Father also testified that Curtis is gentle, kind and has a wonderful sense of humor. Curtis is a natural athlete, enjoys golf, Little League baseball, swimming, fishing, hiking, riding his bike through puddles, beachcombing, playing video games, playing games including Monopoly and Apples to Apples, board games and card games. Curtis has interesting friends and is more a one-on-one kind of guy. Curtis really understands the give-and-take of a good friendship and has some good friends. Curtis' academic strengths are math and science and he is developing a strength in writing and reading. Mr. Tauck felt Curtis could improve his listening skills, especially on the school side. He also needs to learn to take his time because he can do things well if he takes his time. Sometimes Curtis gets distracted or lost in his own thoughts and dreams.
Father described his youngest son as "good Time Charlie," because since he was young, Charlie has had an uncanny ability to just have fun with whatever he does. Charlie has a vibrancy about him that is magnetic for all ages — adults, older kids, younger kids, kids his own age. Charlie makes the most of everything and has a great attitude about everything. Charlie doesn't like to lose, he is very competitive, and if he feels he been treated unfairly, he gets deeply upset. Father also described Charlie as being very sensitive and caring of other people. Charlie really takes care of his younger sister and displays that caring side to other people as well. Physically, Charlie is stocky, strong and smart. He excels and enjoys every subject in school. His interests include sports, basketball, baseball, swimming, building blocks, video games, card games, Monopoly, matchbox cars, making forts and fishing. Charlie is in kindergarten and father describes him as academically strong and well liked by his classmates. Charlie has friends at school who are 12 years old and is a natural born leader according to his proud father. Mr. Tauck felt that Charlie could improve his sense of what is really fair and balanced and learn to be more truthful.
Mr. Tauck described Alexandra as an artistic and very creative person. Ali is a very social person when she gets to know people. Father described his daughter as a happy-go-lucky little girl with a balanced temperament who loves art projects, playing outside, playing with friends, swimming, riding a tricycle, picking flowers, making glitter jars and hammering nails in the basement with her dad. Ali loves finding shells on the beach and gluing them to a frame, music, dancing, dressing up and has an incredible sense of style, with a flair for color and pattern matching. Physically, Ali is very flexible and has grace and dexterity. During the trial, she was attending preschool. She loves books, likes reading, and is curious. Socially, Ali is a little shy at first but once she gets to know someone she opens up. Mr. Tauck testified that his daughter has an incredible vocabulary and will chatter in conversation once she gets to know someone.
The court was impressed with the depth and breadth of Mr. Tauck's knowledge of his children. Essentially, he knew his children both inside and out and with equal pride could describe the essence of their respective personalities and their achievements. The court did not hear this type of testimony from mother. Most of Mrs. Tauck's testimony about her children revolved around how much they missed her, how much she missed them, and how they were afraid of their father. Mother clearly did not demonstrate the same depth of knowledge of who her children were that father possessed.
Pages 30-71 of this Memorandum and other sections, as indicated in the body of this decision (by redactions), are ordered sealed until further order of the court pursuant to Connecticut Practice Book §§ 25-59A and 7-4B and 7-4C. The court has previously sealed pleadings, documents, and exhibits, in this case, finding it necessary to preserve interests which were determined to override the public's interest in viewing such materials. The court has considered that this order, as with past orders, is no broader than necessary to protect such overriding interests. The sealed portions of this decision involve both statutorily protected interests relating to the Department of Children and Families (DCF) investigation, C.G.S. § 17a-28(b), psychiatric records, medical records as well as findings by this court based on the sealed evidence necessary to protect the children's best interests. The sealed portions of the decision are based on evidence and/or testimony previously sealed by this court or Hon. Kevin Tierney in the pendente lite proceedings.
Portions of the court's findings of fact in the financial portion of the decision have been redacted from the decision because they relate to the interests of Tauck, Inc., an unrelated closely held corporation, in which the husband is a shareholder. The evidence on which the court relied upon in making redacted financial findings of fact were sealed at trial or prior to trial by Hon. Kevin Tierney.
The parties and their counsel are prohibited from disseminating the sealed portions of the court's decision except as provided herein.
Andrew Lustbader, M.D., Mrs. Tauck's psychiatrist, is board certified in child, adolescent, and adult psychiatry, as well as pediatrics. According to the records introduced at trial, he began treating Nancy Tauck in October of 2003. Both Dr. Lustbader and Mrs. Tauck served on the Town of Westport Crisis Team after 9/11. In addition, Mrs. Tauck was on the board of directors of The Mid-Fairfield Child Guidance Clinic where Dr. Lustbader is medical director. The Tauck family made substantial donations to the Mid-Fairfield Child Guidance Clinic including a donation of $100,000 and a second donation for $40,000. Dr. Lustbader treated multiple members of the Tauck family including one of the minor children for Attention Deficit Disorder. During this treatment, he also saw Mr. and Mrs. Tauck for parent counseling in connection with their child. At some point, Dr. Lustbader provided marriage counseling both to Mr. and Mrs. Tauck.
The court has examined Dr. Lustbader's file on Nancy Tauck (Exhibits DC-232, DC-224 224A P-772, P-773, P-774, P-775, P-776, P-777, P-778), and his medication logs (Exhibit P-780-783). The court was struck by the fact that Dr. Lustbader's notes from October 9, 2003 through January 5, 2006 total a mere eight pages. Dr. Lustbader treated Mrs. Tauck for multiple hundreds of appointments between 2003 through March 2007 and his file contains notes for only nine of those 321 sessions. Dr. Lustbader's file is unusually sparse when compared to the file notes kept by Dr. D'Apice, Dr. Lustman and Dr. Eisen. The court also finds that Dr. Lustbader's file has absolutely no mention of ANY of Mrs. Tauck's alcohol relapses during the period of time he saw her, not one single word about her drinking. In addition, during his testimony (Tr. May 10, 2007, p. 37, ln 25-27), he stated he didn't make notes of the times Mrs. Tauck told him she was drinking; this, despite the fact that he was treating her for alcohol relapse and her drinking is documented in notes from other physicians, hospitals and therapists. In fact, a progress note dated November 30, 2006 (Exhibit 775), states as follows "continues to do well despite tremendous stressors. Meds have remained constant. Only negative sign is troubled sleep occasionally-? Ambien CR presentation has been good as her spirits have remained constant, positive, forward-thinking functioning well." Shortly after Dr. Lustbader wrote this progress note, Mrs. Tauck admitted she relapsed and began drinking alcohol again.
Exhibit DC-247 is Dr. Lustbader's bill to Rutkin and Oldham, LLC (one of the firms representing the defendant) for the time he spent in preparing for depositions and being deposed. Assuming that Dr. Lustbader spent eight hours on each day of the deposition scheduled for June 28, 2006, he claims to have spent 52 hours preparing for that deposition at $675 an hour for a total of $35,100. It is difficult for this Court to believe that a triple board certified psychiatrist spent 52 hours looking at an eight-page file for Mrs. Tauck and the combined family/child file. Dr. Lustbader was also deposed on December 14, 2006, December 20, 2006. January 5, 2007, February 9, 2007, February 20, 2007, and March 1, 2007. Assuming again that he spent eight hours per day actually being deposed, he spent another 34 hours preparing for these depositions at $675 an hour. Dr. Lustbader's total bill from June 2006 through April 2007 is $95,850 (Exhibit 247).
Additionally, Dr. Lustbader billed Mrs. Tauck's attorneys for preparing two reports prepared for this litigation. He claims to have spent six hours preparing a two-page report, dated March 13, 2007, and charged $4,050 for his services. Dr. Lustbader also prepared a report dated June 29, 2006; his bill indicates he spent 20 hours preparing this report and he billed $13,500 for this four-page report. The court finds that the time billed above is patently unreasonable. Dr. Lustbader went to the Tauck family home to look at a computer allegedly containing child pornography at Mrs. Tauck's request. Dr. Lustbader could not corroborate what the wife saw was child pornography. He did not recall the day or month he went to the Tauck home to view the computer, however, he thought it was before the divorce papers were served on Mr. Tauck in Dr. Lustbader's office on May 12th or 13th, 2005. Dr. Lustbader testified that Mrs. Tauck never gave him pictures of downloaded pornography.
Dr. Lustbader testified that in April 2005, Mrs. Tauck found her husband's journal and was devastated by the discovery of it.
Dr. Lustbader's Axis I diagnosis of Mrs. Tauck is Post-Traumatic Stress Disorder, Chronic Adjustment Disorder with Anxiety, Alcohol Dependence without Physiological Dependence, Sustained Partial Remission. Dr. Lustbader's report refers to Mrs. Tauck's "very brief return to alcohol a few years ago and last year." Dr. Lustbader also states "she does not have any psychopathic biology or other undiagnosed condition that constitutes a danger to herself or her children. She is very compliant with treatment and instructions regarding her medication." The evidence introduced at trial significantly contradicts those statements.
Dr. Lustbader testified that Mrs. Tauck takes a number of psychotropic medications including: the antidepressant, anti-anxiety medication Paxil 60mg, for post-traumatic stress disorder, 250mg of Lamictal to help with impulsivity and mood stabilization, Atenolol, a medication to help with a stressful, shocky feeling Mrs. Tauck gets, and Provigil 600mg to help with daytime sedation, and Ambien 10mg for sleep. Dr. Lusthader testified that Lamictal and Atenolol have warnings against the consumption of alcohol while taking the medication.
Dr. Lustbader testified that he only became aware of Mrs. Tauck's drinking in February or March 2007, despite the fact that Mrs. Tauck testified she began drinking in December of 2006. During several days of testimony, Dr. Lustbader frequently answered "I don't know" to questions posed to him, and appeared to be deliberately evasive. The court did not find Dr. Lustbader's testimony persuasive.
Dr. Lustbader has treated Mrs. Tauck for a substantial period of time. During her treatment with Dr. Lustbader, she has relapsed on multiple occasions and has appeared to make little or no progress in her therapy. Mrs. Tauck would best be served by finding a new mental health professional with expertise in the area of alcohol addiction treatment.
Ms. Perez began working for the Tauck family shortly before/after Mother's Day 2005 as a nanny/housekeeper. Her responsibilities include cleaning, cooking, grocery shopping, keeping lists and a schedule for the children, getting the two younger children ready for school, and driving the children to school. She testified that when she initially began employment with the Taucks, she was paid $15 an hour and was given a raise to $18 an hour the following week. In September 2005, Mrs. Tauck raised the hourly rate to $20 an hour and in January 2006 Mrs. Tauck raised her salary to $30 an hour. In 2005, Mrs. Tauck paid Ms. Perez a bonus of approximately $3,000. At some point in 2006, Mrs. Tauck established her salary at $1,500 per week. On March 3, 2006, Mrs. Tauck paid $5,000 to pay Ms. Perez's income tax liability.
Ms. Perez accompanied Mrs. Tauck when Mrs. Tauck left the family home with the children in July 2005. She testified that one July morning, Mrs. Tauck suddenly asked her to go on vacation with her and the children. She had no clothing or toiletries with her. She further testified that this occurred on the same day Mr. Tauck was supposed to take one of the children on vacation. Ms. Perez was instructed to take the children to IHOP for breakfast and then meet Livia Rivera [another nanny/housekeeper) and Mrs. Tauck in the CVS parking lot. Mrs. Tauck told the children that their father gave them this vacation and everything was okay. Mrs. Tauck's brother paid her $5,000 or $6,000 to compensate her for the two weeks she worked prior to the trip. Ms. Rivera testified that during this vacation, Mrs. Tauck slept with the children some of the time.
Ms. Perez testified that she never saw Mrs. Tauck intoxicated or drinking alcohol. She also testified that Mrs. Tauck never told her she was drinking. However, after Mrs. Tauck's March 1, 2007 car accident, Ms. Perez asked Mrs. Tauck what was going on and she admitted she was drinking, she needed help, and was going away.
Ms. Perez testified that she saw Mr. Tauck frequently make breakfast for the children. Usually the children asked for cheese omelets.
Mr. Rivera is a retired New York City police officer (1981-1995) who retired on a disability pension on December 31, 1995. He has worked for Mrs. Tauck since September 2005. Initially, he worked 24 hours a day, seven days a week, keeping an eye on the children and basically making sure the children were safe. In 2005, he typically worked Monday through Thursday and returned Monday afternoon. The schedule changed in May 2006 when the parents began the bird-nesting arrangement that was in place at the time of trial; Mr. Rivera was with Mrs. Tauck when she was with the children. Mr. Rivera testified that he cooks 60% of the time and assists Mrs. Perez and Mrs. Tauck in getting the children ready in the morning. He frequently puts one or more of the children to bed in the evening. Mr. Rivera or Mrs. Perez took the children to school and picked them up from school approximately 50% of the time.
Mr. Rivera has had the opportunity to observe both Mr. and Mrs. Tauck interact with the children. He described watching Mrs. Tauck assist the children with their homework, help them with class projects, and play cards or board games with them. During the time he observed Mr. Tauck, from September 2005 to May 2006, he saw Mr. Tauck assist the children with their homework, and play games and such as basketball and baseball (normal father things). He indicated that the children's demeanor and interaction with their father was fine. He admitted he would describe Mr. Tauck as a good father. He indicated that Mrs. Tauck's weakness as a parent is her tendency to give in to the children too often when they want something. Mr. Rivera testified that he never saw Mrs. Tauck drinking in front of the minor children. He testified that he observed Mrs. Tauck with her boyfriend, Robert Brinkman, and suggested to Mrs. Tauck that she have a private investigator check on Mr. Brinkman.
Mr. Rivera was evasive when asked how much money he was paid by Mrs. Tauck. However, he eventually admitted he earned in excess of $100,000 per year. Additionally, in 2005, he was paid a $3,000 Christmas bonus and given a watch. Mrs. Tauck gave Mr. Rivera a red stone earring for Valentine's Day 2006 and she was invited to Mr. Rivera's daughter's wedding. Mr. Rivera met with Attorney Burke in 2006. Mr. Rivera has a key to Mrs. Tauck's Fairfield home. Mr. Rivera testified that he rented a storage facility in Norwalk, CT in his name for Mrs. Tauck. He testified that he frequently grocery shops for Mrs. Tauck, estimating doing so more than 50 times.
Mr. Rivera testified that he took the Tauck boys solo to the New York Hall of Science during Mrs. Tauck's parenting time while Mrs. Tauck stayed home with her daughter. Mr. Rivera has taken the Tauck children solo to the Norwalk Maritime Museum, Coney Island, bowling, miniature golf, and batting cages during Mrs. Tauck's parenting time. Mrs. Tauck and all four children spent Thanksgiving of 2006 at Mr. Rivera's home. Significantly, Mr. Rivera and the children spent approximately seven hours on a trip to Coney Island without their mother on Easter Sunday 2006. Mrs. Tauck did not tell Mr. Rivera where she was on Easter 2006 nor did she tell him why she did not go to Coney Island with her children.
Computer Expert Testimony
William A. Whitledge served as a computer forensic expert for the plaintiff and testified at trial. Mr. Whitledge was employed by the U.S. Department of Justice, Tax Division, for 28 years. Commencing in the late 1980s, he devoted substantially all of his time to working on electronic evidence, digital evidence, and computer forensic issues. Initially, he worked with the Internal Revenue Service Computer and Evidence Recovery Program to help them provide legal advice and develop protocols and procedures for performing computer forensics. He then worked with a newly formed Computer Crime Unit of the Criminal Division in the Department of Justice to develop guidelines for searching and seizing computers. The Computer Crime Unit provided advice to prosecutors and agents on digital evidence issues. In the mid-1990s, Mr. Whitledge co-chaired the working group that developed guidelines for law enforcement in the use of the internet to conduct investigations. In 2001, Mr. Whitledge moved from the Department of Justice to the Internal Revenue Service where he formed and headed an Electronic Crimes Program which consolidated the IRS's Computer Evidence Program. In that national program, Mr. Whitledge had supervisory authority over all computer search warrants and the collection of digital evidence in IRS criminal cases. He continued in that position until he retired from the federal government in 2005. Mr. Whitledge taught at the Federal Law Enforcement Training Center in the Department of Justice's National Advocacy Center. He authored an article regarding digital evidence that was published in the International Federation of Information Processors a year ago and another article is being published in August 2007. After leaving the federal government, Mr. Whitledge worked for OXCO Corporation (a data mining analysis company) for six months, then formed his own company in March 2006. As of the date of his testimony, he had never been involved in any investigations concerning child pornography. Mr. Whitledge admitted he had never been qualified in any state court as an expert with respect to the issue of identification of an image as pornography or child pornography. In addition, he testified that he had no specialized training or education in the identification of pornography or child pornography. Finally, he testified that the definition of pornography he used in his analysis was not the definition from Title 18 of the United States Code Section 2256. Mr. Whitledge was qualified at trial as an expert witness in computer forensics.
In late March 2007, after signing a confidentiality agreement, Mr. Whitledge was given copies of six hard drives that the FBI had created from the material that had been turned over to them in this case. The plaintiff and defendant's experts each cloned the hard drives given to them by the FBI. The contents of each hard drive were in folders labeled QNHTK1 through QNHTK9, and QNHTK11 through QNHTK19. The FBI log file labeled three of its images as iPods, two images of Maxtor external drives, and one 512 megabyte thumb drive; the rest of the imaged copies were hard drives. Mr. Whitledge had to determine which image matched a particular hard drive. Mr. Whitledge used two different software programs to complete his analysis; he used the Encase Forensic Suite while his associate, Mr. Marino, used the FTK program.
After they determined which drives belonged to which computer, he began to analyze the various computers and images. The first computer analyzed was the Toshiba laptop belonging to Mr. Tauck in service from 2002 to early 2005 — Toshiba I (QNHTK19). The analysis of the hard drive began with Mr. Whitledge looking through the graphic images to determine whether pornography existed on the hard drive, the extent of the pornography on the hard drive, the location of all of the pornography on the hard drive, and finally to determine whether any of that pornography might constitute child pornography. During the analysis, Mr. Whitledge was able to determine that QNHTK18, QNHTK19, and ONHTK11, were all copies of the same computer. It was determined that QNHTK11 was Mr. Rabetsky's (the wife's initial computer expert) working copy during his analysis.
Mr. Whitledge testified that the internet history file, or internet history folder, contains a file that recorded the internet usage of sites visited on the internet for May 5, 2005, had been deleted and no longer present. Mr. Whitledge found a substantial number of image files on Toshiba I. There were image files that were downloaded from internet sites to help build web pages that the sites use. Mr. Whitledge found a substantial number of images that he could categorize as pictures in that they were images made from photographs. He found several thousand of these in the temporary internet cache. Mr. Whitledge looked through the images that were collected from the internet websites and marked or selected images that appeared to be or could possibly be someone under the age of 18. These images were found on the temporary internet cache of Toshiba I. Mr. Whitledge described the temporary internet cache as a series of folders that Internet Explorer creates and uses to allow the user to more easily extract sites at future times.
Mr. Whitledge testified there was no way of knowing who was actually logged on a computer at a particular date or time unless the computer is biometric capable. Biometrics is a method of using physical characteristics of an individual to authenticate that person for access to a facility or access to a device such as a computer. Typical biometrics, in secure facilities, include fingerprints or handprints. Toshiba I did not have biometric capability.
Mr. Whitledge was able to determine the exact day that information was downloaded from the internet into the computer's temporary internet cache. Each image had associated with it several dates including the date the file was created on the computer, the date that file was modified or last written to, and the date it was last accessed on that computer. Mr. Whitledge was unable to find any direct or indirect evidence to demonstrate that Mr. Tauck or anyone else ever saw any of the images he found on Toshiba I. Mr. Whitledge explained, as an example, that if one was searching the L.L. Bean website for a pair of brown shoes, the website might contain multiple pages of brown shoes in different styles. Those multiple pages would be loaded into the temporary internet cache and the user would not necessarily physically see all of the pages which are cached by the mechanism that the webpage designer created. Unless the computer user deliberately went to each cached page, they would never appear on the user's screen. Mr. Whitledge was unable to say with a reasonable scientific certainty that an image found in the temporary internet cache was viewed by anybody.
Toshiba I contained 158 images identified as "suspect" by Mr. Whitledge. Of those images, 148 were downloaded on May 5, 2005, a day verified by Mr. Tauck's passport that he was in Tahiti. The other 10 images were downloaded prior to May 5, 2005. Mr. Whitledge testified that it was reasonable to conclude, based on a certain HTML file in Toshiba I, that the computer was not in Tahiti on May 5, 2005. Finally, upon questioning by the court, that if there was any evidence that anyone ever viewed any of the images that were in the temporary internet cache on Toshiba I, Mr. Whitledge replied "I cannot tell whether any particular image itself was put on the screen or was put in the cache. If it was simply put in the cache, then from the dates, I cannot tell whether it was viewed by anyone."
Mr. Whitledge found no evidence that Toshiba I was remotely accessed from Tahiti on May 5, 2005. Additionally, Mr. Whitledge found an IP address which led him to conclude that on May 5, 2005, Toshiba I was connected to an internet provider, which encompasses the geographical area of the state of Connecticut. Mr. Whitledge found no evidence that anyone deliberately altered the date on the computer on or before May 5, 2005.
Mr. Whitledge was able to determine that a substantial number of files had been deleted from Toshiba I. He found that some files had been "wiped" so that they could not be recovered forensically. He also found that the internet cache folders themselves had been deleted. He testified that this indicated some deliberate action had been taken to erase and remove the files in the temporary internet cache preventing them from being accessed by a normal user. He explained that when a file is deleted by a user, it is placed into the recycle bin and is available to be recovered if it hasn't been written over. However, there is software available that will remove all traces of the file by overwriting it, generally with a character that repeats itself and makes it impossible using normal forensic means to recover any data that was located where the file resides. Mr. Whitledge did find evidence that such file-wiping software had been employed on Toshiba I. He explained that file-wiping software is intended not to leave any traces, so the dates recorded in the system for that file may or may not be reliable as to when the file was actually removed. Of particular significance to the court, was the fact that there was no trace left of the internet browsing history that shows the sites visited on May 5, 2005; Mr. Whitledge testified that someone wanted to remove that file so it could not be analyzed.
Sealed Exhibit 256 (the court notes here that while this exhibit is sealed the testimony regarding the exhibit was not sealed), prepared by the defendant's expert, comprises the internet browsing history of Toshiba I on May 5, 2005, from shortly after 8 a.m. until a little after 2 p.m. After an examination of Sealed Exhibit 256, Mr. Whitledge was able to form an opinion that word searches were in fact performed on Toshiba I on May 5, 2005, including word searches for "young porn" and "teen sex."
Mr. Whitledge analyzed two hard drives identified as QNHTK14 and QNHTK15 and discovered they were identical. These hard drives were images of the computer Mr. Tauck used at work. Mr. Whitledge looked at the contents of the computer to determine the nature of the documents, spreadsheets. and other information, in an attempt to determine who might have used the computer. He testified that the documents found on the computer appeared to be documents that a president of a corporation would have on his computer. Mr. Whitledge found that there was a substantial amount of internet activity on the computer July 7, 2005. However, Mr. Whitledge was unable to determine to a reasonable forensic probability who the user of this computer was on that date. Mr. Whitledge testified that he found 79 images from the Tauck, Inc. computer he identified as potential pornography. However, upon questioning by the court, Mr. Whitledge could not tell whether the images had ever been viewed by anyone as they were all located in the temporary internet cache.
Mr. Whitledge also conducted a forensic analysis of QNHTK13, known as Toshiba II, Mr. Tauck's replacement laptop computer. Mr. Whitledge did not find any pornographic images on QNHTK13. Mr. Whitledge found this forensically significant because he had been told he should expect to see pornography on that hard drive. All counsel stipulated that file fragments, which appeared to come from adult pornographic websites, were found on Toshiba II (Tr. June 13, 2007, p. 72); those file name fragments were located in unallocated space on the hard drive. Mr. Whitledge testified that he found evidence of a file-wiping program on Toshiba II because there was no trace of the adult pornographic files, yet there were file names and indications that there should have been files or at least parts of files there. The space occupied by those files had been overwritten either by another file or by a file-wiping program. Mr. Whitledge was unable to determine whether the files had been overwritten or deleted by a file-wiping program.
Mr. Whitledge examined two Maxtor external hard drives: QNHTK1, a 100 gigabyte hard drive, and QNHTK7, an 80 gigabyte hard drive, which were copied and turned over by the FBI. He found evidence that files had been deleted from the backup hard drives but no evidence of any wiping software used on the two external hard drives. Mr. Whitledge was unable to determine from his forensic analysis who or how the data was wiped from the backup hard drives.
Mr. Whitledge was made aware of a PT hard drive in December of 2006. He was unable to perform a forensic analysis on this hard drive because the hard drive was inoperable. An attempt was made to rebuild the hard drive by Kroll OnTrack; it was not successful.
At the time of his testimony at trial, Mr. Whitledge had established that there was no evidence of remote download access to the computer known as Toshiba I. Mr. Whitledge reviewed a Net Analysis report of the browsing history for Toshiba I for May 5, 2005 (Sealed Exhibit 256) (the court notes here that while this exhibit is sealed the testimony regarding the exhibit was not sealed) prepared by the defendant's expert. He testified that a portion of the browsing history for Toshiba I on May 5, 2005 had been deleted. Mr. Whitledge defined browsing history as a compilation of the activities that Internet Explorer has engaged in over the course of a certain period of time. In addition, his forensic investigation demonstrated that someone wanted to deliberately delete the browsing history of Toshiba I on May 5, 2005. Despite the fact that the internet browsing history was removed from Toshiba I for May 5, 2005, the images from the temporary Internet cache were not removed.
As a result of the material Mr. Whitledge reviewed in connection to the computer known as Toshiba I, he formed the opinion that word searches were performed on that computer on May 5, 2005. One of the word searches was for "young porn" and the other word search was for "teen sex."
Mr. Whitledge identified 79 images on Mr. Tauck's office computer as being potential pornography. He testified many images had the date of creation and the date of last access as being the exact same second. He testified that an image having the same creation and last access time to the second would be consistent with the image having been cached to the temporary internet cache by the webpage and he was unable to say with a reasonable scientific probability that anyone had ever viewed any of those images.
Mr. Whitledge testified that a hidden image file is defined as a file that contains an image within another image and testified that specialized software places an image in blank space in between unused portions in a file of another image and it's fairly undetectable. He testified he found no evidence of hidden images on any of the computers he examined.
Mr. Whitledge examined the computer known by its FBI designation as QNHTK17, Nancy Tauck's computer. He found that someone had logged onto the computer at 10:23 a.m. on May 5, 2005. He found a search conducted on Mrs. Tauck's computer with the e-mail address of Peter Tauck on a worldwide homosexual website. Mr. Whitledge spoke to Mrs. Tauck during his investigation and she indicated to him that prior to May 5, 2005, she had logged on to her husband's Toshiba I computer.
Robert Rabetsky was the plaintiff's first computer expert utilized during the pendente lite portion of the case; he also testified at trial. Mr. Rabetsky was employed for the last 10 years primarily in the field of security compliance and risk. He defined security as dealing with computer/electronic security as well as performing physical security analysis and recommendations. Mr. Rabetsky had been involved in the information technology business for over 20 years and had been employed as an IT director. He testified he was self-taught, learning all of the operating systems. He has some specific training that Microsoft or IBM had given on their operating systems in 2005. When he became involved in the Tauck divorce, he was operating his own business known as Solutions International.
Mr. Rabetsky received the laptop known as Toshiba I on July 23, 2005 at the law offices of Wayne Effron from Attorney Harold Burke. Mr. Rabetsky took the laptop to his lab for processing and performed a cloning of the hard drive using software called Norton Ghost version 7.0. Mr. Rabetsky was instructed to look for interest in a potential homosexual relationship, subscriptions to out-of-town newspapers, interest in trains, and child pornography. He discovered a wide range of files on the computer including JPEG's. movies that were of a pornographic nature. A high percentage of the pornographic files were found in the temporary internet folders. The images Mr. Rabetsky found were a variety of JPEG images which were picture files for the most part but also included movie files containing a variety of adults in various sexual situations. Mr. Rabetsky provided those images to the plaintiff's attorneys and to law enforcement including the Westport Police Department and the FBI.
Mr. Rabetsky was asked to look for the browsing history on days when there seemed to be a lot of activity or a lot of file downloads, including May 5, 2005. Mr. Rabetsky informed Attorney Burke about the images he had found for May 5, 2005 in August of 2005. He verified the date by the file stamp for each file and to the best of his knowledge the date stamp was accurate. The images he located were in the temporary internet cache of Toshiba I. He did not however, perform a check to see if the date and time on the computer had been tampered with. The date and time verification he made was to check the date and time when he copied the Toshiba I hard drive.
In addition, Mr. Rabetsky was asked to produce an Outlook calendar for Mrs. Tauck. Mrs. Tauck's Outlook calendar indicates that she had a 12:15 p.m. to 12:45 p.m. pediatric appointment for Alexandra (which she did not attend), a 12:45-1:45 p.m. appointment with Dr. Lustbader, a 3 p.m. to 6:30 p.m. appointment with "Joe," and a 6:30 p.m. to 8:30 p.m. notation "cake night, bring Joe."
Mr. Rabetsky was asked to look into the possibility of remote access of Toshiba I from Tahiti on May 5, 2005. Mr. Rabetsky could find no evidence of remote access. He also found no evidence that the Toshiba I laptop was associated with computer activity in Tahiti. Exhibit 258, an invoice from Mr. Rabetsky for his work was introduced. The invoice dated August 22, 2005, bills for time Mr. Rabetsky spent preparing a CD and delivering it to the Westport Police and the U.S. Attorney's Office, and identification of an IP address for a hotel in Tahiti. Mr. Rabetsky informed Attorney Burke that there was no evidence in the laptop that the Tahiti IP address had been accessed.
Marcus Lawson, president of Global CompuSearch LLC, testified as a computer expert on behalf of the defendant, Mr. Tauck. Mr. Lawson has a bachelor's degree in criminal justice from Portland State University and a juris doctor degree from Pepperdine University in 1983. His employment background included working for the U.S. Secret Service from 1983 to 1987, working as a Special Agent for the Drug Enforcement Administration, and as a Special Agent with Immigration and Customs Enforcement. Commencing in 1989, Mr. Lawson's area of responsibility for Immigration and Customs was the investigation of child pornography. In the mid-1990s, Mr. Lawson's investigation of child pornography was almost predominantly or primarily by computer. As a Special Agent for Customs, Mr. Lawson performed many functions in the course of his investigation of child pornography including undercover sting operations, meeting undercover with potential suspects, arresting suspects, interrogating suspects, evaluating computer evidence that was seized during searches, presenting evidence to US Attorney's office for prosecution, presenting evidence to grand juries for indictments, and presenting evidence in court for prosecution of child pornography offenses. In the 10 years that he specialized in child pornography investigations, he was involved in well over a hundred cases. In the course of his role as a Special Agent, he was required to make determinations as to what was and what was not child pornography. In the late 1990s, Mr. Lawson was involved in the U.S. Customs service investigation of computer crime including the collection of computer evidence and computer forensics.
Since establishing Global CompuSearch, LLC in 2000, the company has had approximately 1,200 clients with 60 to 65% involving criminal investigations and of those criminal investigations 70% to 75% involved child pornography. Mr. Lawson has been qualified in state and federal courts as an expert witness in the identification of child pornography, the investigation of child pornography, the inner workings of various aspects of the internet, and various applications of the internet and how they relate to the investigation of child pornography. He has testified on his observations of people involved in the collection or dissemination of child pornography, and he has been qualified as an expert in the field of forensic computer analysis.
The scope of Mr. Lawson's investigation was to examine all of the electronic media in the case to determine if there was child pornography on any of the media, which included laptops, hard drives, thumb drives, iPods, external storage devices, and the like. Mr. Lawson individually examined each and every piece of media for the presence of child pornography including all of the CD's and every hard drive.
Generally, using the NK software, Mr. Lawson placed all of the pictures into an active volume and then a thumbnail gallery. He was then able to scroll through the gallery to determine the content of any given image. If there was an image in question, one merely had to click on it once and the image was reproduced in a window pane in its correct size. The second step he took was to run a script that pulls up or finds anything that it recognized as an image in unallocated file space which would include all deleted files. When Mr. Lawson found images that were questionable in his mind, he followed them up in terms of further identification to determine whether they were or were not child pornography.
Mr. Lawson found suspect images on Toshiba I in the temporary internet files. He defined temporary internet file folders as part of the Windows operating system when using Internet Explorer. They are part of a cache system that collects the HTMLs (which are the webpages themselves) as well as the images that are contained on the webpages, and caches the images and the HTMLs into folders. Once this is completed, each HTML page and each image that is cached is given a time-date stamp for when it was created in the computer. That date corresponds to when the image first hit the hard drive in the temporary internet files. When a particular image completes downloading, it is then given a last access time. Mr. Lawson, like Mr. Whitledge, was unable to determine whether any of the suspect images in the temporary internet cache were ever viewed by anyone.
Mr. Lawson examined Toshiba I for the dates May 1 through May 10, 2005 using the forensics software Encase. This software sorts by time and date all of the files in the computer — every active file, as well as deleted files that still have time date stamps associated with them — in order to create a timeline of the use of the machine. The second item Mr. Lawson examined was the index.dat files which are a running text log of browser activity in Windows Explorer. Mr. Lawson's associate, Mr. Peden, used a program called NetAnalysis to extract the index.dat files and print them. Using NetAnalysis, Mr. Lawson was able to establish a timeline for use of the Toshiba I computer on May 5, 2005 (Sealed Exhibit 256) (the court notes here that while this exhibit is sealed the testimony regarding the exhibit was not sealed). The timeline demonstrates that there was a significant amount of web browsing on May 5, 2005. In Sealed Exhibit 256, the column that is captioned "Type," refers to a file that's been cached and saved to the temporary internet files. The column labeled "Last Visited" represents the file creation date and time for that particular entry. The column entitled "Secondary Date" can be a date that the particular HTML page was first placed on the internet or it can be a date that the HTML page or picture was updated on the internet. It is not affected by the time clock of the computer that is caching the page. The column marked "user" reflects a particular user profile that is associated with the index.dat file. The column marked "URL" is a reference to the particular webpage and or the particular image from that webpage that is being cached to the temporary Internet files.
Mr. Lawson found evidence of word searches on Toshiba I. He defined word search as the use of a search engine such as Google or Yahoo where a user types in a particular keyword for a subject that they wish to find. A forensic examination of Toshiba I for May 5, 2005, found word searches for "teen sex," "Young porn," and "LeLolita." On some occasions, the above word searches resulted in a search engine returning a webpage that was accessed on the computer. This produced temporary internet file images that were found by the plaintiff's experts and produced images that they suspected were child pornography. The search for LeLolita led to a website called LeLolita and was responsible for approximately a dozen of the images that were later recovered by the plaintiff's experts and presented as child pornography. The Yahoo search for "Young porn" produced a result for a pornographic website operated under the nom de plume of "Christina Young." Mr. Lawson found two images recovered by the plaintiff's experts as potential child pornography originated from this website.
An examination of the activity on Toshiba I on May 3, 2005, demonstrated that activity began at 8:31 a.m. in personal documents and accessed pictures. "My Documents" is a Windows folder created within Windows where people commonly keep their word documents. The files accessed on May 3, 2005, include My Documents/My Pictures/Current Slideshow/Norton/Atplay/081.jpg, MyDocuments/PTfiles/Personal/Growthpersonal/WhereIamgoing.doc. My Documents/Personal/Growth/Nancy/NancymeetJune6.doc. On May 4, 2005, at 12:04 p.m., the first link file created was My Polly/BirthdayCake.BMP. Mr. Lawson explained that BMP is a designation for picture. Additional files opened on Toshiba I on May 4, 2005 include My Documents/Personal/Financial/FamilyWealthVisionStatement.doc, Document/Business/Presentations/MomentsofTruth.doc., My Documents/MyPictures/FamilyFun2004Home/Assorted.001 JPEG.
Mr. Lawson also examined the Nancy Tauck Toshiba laptop computer images from the FBI (FBI designation number QNHTK17) for May 5, 2005. This computer was accessed at approximately 9:30 a.m. for approximately an hour and a word search was performed. The word search found on Mrs. Tauck's laptop computer on May 5, 2005 included "out personals.com," which is a homosexual internet matching site for Mr. Taucks business e-mail. In addition, Mr. Lawson found evidence of the deletion of files on the Nancy Tauck laptop computer. Almost all of the files for the period May 1 through May 10 or 12th, 2005 were deleted. Mr. Lawson found evidence of files that had zero markings that in his experience were indicative of files that were deliberately wiped from the computer.
Mr. Lawson was able to determine the location of the Toshiba I laptop on May 5, 2005. Mr. Lawson observed what is commonly referred to as pop-ups as a result of access of adult web pages. The pop-up he found was for Adult Friend Finder. He explained that the pop-ups read the IP address that is responsible for access to pornography pages. It interprets the IP number (in essence a physical address of the computer) and offers an adult friend in that geographical area. Mr. Lawson found several adult friend finder pop-ups and they all said the same thing, "find a partner in Westport tonight" for the date May 5, 2005. This indicated to Mr. Lawson that the IP number associated with the computer browsing the website that created the pop-up, was showing an IP address associated with the Westport, CT area.
Mr. Lawson testified that based on the knowledge that Peter Tauck was not in Westport on May 5, 2005, based on the fact that he was in Tahiti at that time, based on the fact there is no evidence of any remote access to the computer, and based on evidence that the time clock on the computer was correct, it would appear, in his opinion, that some unknown person created word searches of the type that would likely put images of a type on the computer and the temporary internet files, that could result in someone being charged with a crime of possession of child pornography.
The highlighted line on Sealed Exhibit 262 (the court notes here that while this exhibit is sealed the testimony regarding the exhibit was not sealed) represents a deleted HTML file (webpage) on Nancy Tauck's computer. The name of the web page is sexsq.com and the file creation date was May 6, 2005. Mr. Lawson saw evidence of the sexsq.com webpage on Peter Tauck's Toshiba I computer on May 5, 2005.
Mr. Lawson's examination of the activity occurring on the Toshiba I computer on May 5, 2005 included a failed attempt to logon to the Tauck, Inc. computers from Toshiba I using a computer networking software called Citrix. The logon was not successful. Mr. Lawson verified that Citrix had been installed on Toshiba I to allow the user of Toshiba I to access the Tauck, Inc. computers.
Mr. Lawson reviewed the photographs of the Tauck children contained in Sealed Exhibit 245(a-v). Mr. Lawson examined the photographs utilizing the Dost factors from United States v. Dost, 636 F.Sup. 828, 830 (S.D.Cal. 1986) and in his opinion they did not constitute child pornography. Mr. Lawson evaluated the images that came to the Toshiba I computer on May 5, 2005, and he was unable to rule out three or four as child pornography.
Mr. Lawson examined Mrs. Tauck's Toshiba Satellite laptop computer and found the following significant forensically: on May 9 and May 10, 2005, he found word searches for "bondage sex" (Exhibit 263(a) and 263(b)) (the court notes here that while all the Exhibits 263(a-z) are sealed, the testimony regarding the exhibits was not sealed); on May 6, 2005 (Exhibit 263(c)), he found what appeared to be a homosexual membership login page with a search for men seeking men in CT; and on May 10, 2005, he found a Google search for anal sex. Exhibit 263(d) illustrates a file creation date of May 10, 2005 for a personal sex search site banner and at the bottom of the banner it states "meet a sex partner in Westport" — the forensic significance of this pop-up indicated to Mr. Lawson that Mrs. Tauck's Toshiba laptop computer was also located in Westport on May 10, 2005. Exhibit 263(e) represents a search on a webpage on May 9, 2005 at 9:28 p.m. for anal sex. Exhibit 263(f) shows the file creation date of May 5, 2005 and is a webpage from worldwide gay personals stating "sorry, we can't find P.Tauck@Tauck.com in the login database." This indicated to Mr. Lawson that someone accessed the worldwide homosexual personal webpage and attempted to locate the e-mail address PTauck@Tauck.com on May 5, 2005. Exhibit 263(g) shows a search date for March 3, 2005 using the word "gay sex." Exhibit 263(h) represents a file full of zeros with a file date of May 2, 2005. Mr. Lawson testified that, generally speaking, zeros in a particular file or a hard drive can be one of two things — they are either unused portions of the disc or files that have been wiped from the computer. Exhibit 263(l) shows a file creation date of May 4, 2005, and a file that is encompassed with zeros and no other data similar to the previous exhibit.
Exhibit 263(j) is a web search page associated with a word search conducted on the Google search engine on June 9, 2005; the search words were "buy Ritalin without prescription." Exhibit 263(k) is another search using Google on June 9, 2005; for "Ritalin online." Exhibit 263(l) is the use of Google on June 9, 2005 for "buy Ritalin online," Exhibit 263(m) is the use of Google on March 1, 2005 for "Ritalin overnight shipping," Exhibit 263(n) is the use of Google on February 28, 2005 for "stimulants, no prescription." Exhibit 263(o) is a search using Google on February 28, 2005 for "stimulants, no prescription." Exhibit 263(p) is again a Google search for March 12. 2005. for "amphetamines, over-the-counter." Exhibit 263(q) is a Google search on February 28, 2005 for "Ritalin, no prescription." Exhibit 263(r) is a Google search on April 20, 2005 for "Ritalin, cheap drugs, buy online," Exhibit 263(s) is a Google search webpage with a file creation date of April 1, 2005 for "Ritalin, no prescription." Exhibit 263(t) is a Google search created on April 1, 2005 for "Ritalin, no prescription." Exhibit 263(u) is a Google search created on March 21 2005 "buy Ritalin online, no prescription." Exhibit 263(v) is a Google search created on April 1, 2005 for "Ritalin, no prescription." Exhibit 263(w) is a Google web search on April 1, 2005 for "Ritalin, express mail, no prescription." Exhibit 263(x) is a page taken from the index.dat recovered files showing the date of May 5, 2005. Exhibit 263(y) is a log file for September 14, 2006 of a program deleting files showing successful deletion.
Mr. Lawson summarized his forensic examination of all the computers and data storage devices as follows:
1. Taken as a whole, the evidence indicates that Nancy Tauck's Toshiba satellite computer was accessed on the same day and time as Peter Tauck's Toshiba I in May 2005;
2. A word search was done for Peter Tauck's e-mail address on Nancy Tauck's Toshiba Satellite laptop;
3. At least one webpage seen on Mr. Tauck's Toshiba I computer also appears on Nancy Tauck's computer;
4. Both Toshiba I and Nancy Tauck's Toshiba Satellite computer were in Westport in early May 2005;
5. The time-day clocks are correct for both computers;
6. There are embedded dates and times in web pages that were downloaded onto Toshiba I that clearly show the date of May 5, 2005, and that activity was occurring on May 5, 2005. Embedded dates in a website are part of the webpage, and not a date that has anything to do with the computer bios clock or the setting of the clock on the computer. During the course of his investigation of the images on Toshiba I, he found several embedded dates from May 5, 2005;
7. Word searches were deliberately conducted on Peter Tauck's Toshiba I computer that resulted in web pages being accessed that cached images to Peter Tauck's computer which the plaintiff's experts then presented as potential child pornography;
8. Mr. Rabetsky should have known in September of 2005 that the May 5, 2005 date was a solid date. In other words, he should have known that the alleged child pornography was downloaded into the temporary internet cache on May 5, 2005 on a date when the husband was in Tahiti.
Financial
Mr. Tauck has worked for Tauck, Inc. since 1979, when he left Lehigh University. Prior to this divorce action, Mr. Tauck was an officer and director at Tauck, Inc. doing business as Tauck World Discovery. Tauck World Discovery offers escorted land, cruise and water package tours sold through travel agents. The company caters to the more affluent traveler and is one of the leading travel companies in the world.
Mr. Tauck was president of Tauck Holding Inc. from 2000/2001 through 2002, and was co-president of Tauck World Discovery with his sister, Robin. Mr. Tauck testified that he resigned the presidency of Tauck holding in 2002 due to his wife's alcohol relapse. He was president of all of the Tauck entities from 1996 to 2000/2001. When Mr. Tauck was co-president with his sister, Robin, he was more involved with the internal side of the company while his sister was involved in market branding of the company. In 2005, Robin Tauck became the sole president of Tauck, Inc.; she took a medical leave in November 2006. In March of 2007, the Board of Directors removed Robin Tauck as president of Tauck, Inc. and Tauck Holding. Robin Tauck's current role is as the public face of the company; she has relinquished control of the rest of the operation. The current CEO/President of Tauck, Inc. is Daniel Mahar, Mr. Tauck's brother-in-law (Kiki's husband). Arthur Tauck (Peter Tauck's father) is the Chairman of the Board of Directors of the Tauck companies. Peter Tauck was named chairman of the US Tour Operators Association (hereinafter referred to USTOA) in December 2005, and resigned in January 2006.
Mr. Tauck served as a consultant to Tauck Inc. working on a project basis from January 2005 through August 2005. His Financial Affidavit (Exhibit 82), dated November 23, 2005, reports $14,167 gross monthly earnings from his job. Mr. Tauck testified that this was the average he earned over 2005 for his services as consultant; he received his last payment in September 2005.
Mr. Tauck's 2000 federal income tax return (Exhibit P-23) reports W-2 income of $1,417,982, taxable interest of $615,115, tax exempt interest of $88,615, a 401(k) deferral of $10,500, ordinary dividends of $138,309, taxable refunds or credits of $18,507, capital loss of $3000, taxable pensions/annuities of $212, and pass-through income from Tauck Tours, Inc. of $2,225,618. Mr. Tauck had an income tax refund of $500,160 in 2000. Mr. Tauck's total gross income for 2000 was $4,412,743.
Mr. Tauck's 2001 income tax return (Exhibit P-20) reports gross W-2 wages of $1,441,113, taxable interest of $413,575, tax exempt interest of $100,346, a 401(k) deferral of $10,500, ordinary dividends of $118,926, taxable refunds, credits or offsets of state and local income taxes in the amount of $44,844, a capital loss of $3,000, taxable pensions/annuities of $227, and $36,583 of pass-through income from Tauck Tours, Inc. In 2001, Mr. Tauck had a federal income tax refund of $570,528. His total gross income for 2001 was $2,052,268 and he paid taxes of $676,373.
Mr. Tauck's 2002 federal income tax return (Exhibit P-17) discloses wages of $589,859, taxable interest of $231,096, tax exempt interest of $135,253, a 401(k) deferral of $11,000, ordinary dividends of $14,482, taxable refunds, credits or offsets of $62,425, a capital loss of $3,000, taxable amount of pensions/annuities of $234, and pass-through income from Tauck Tours, Inc. of $1,784,701. In 2002, Mr. Tauck had a federal tax refund of $67,389. Mr. Tauck's total gross income for 2002 was $2,679,797.
Mr. Tauck's 2003 federal income tax return (Exhibit P-14) discloses W-2 wages of $298,908, taxable interest of $103,722, tax exempt interest of $156,145, a 401(k) deferral of $12,000, ordinary dividends of $7,577, taxable refunds or credits of $4420, a capital loss of $3000, and pass-through income from Tauck Tours, Inc. of $162,435. In 2003, Mr. Tauck had a federal tax refund of $312,998. Mr. Tauck's total gross income in 2003 was $574,062 and he paid federal income taxes in the amount of $118,607.
Exhibit P-8 is Mr. Tauck's 2004 federal income tax return. The return shows W-2 wages of $78,449, taxable interest of $235,683, ordinary dividends of $48,178, tax exempt interest of $315,750, a 401(k) deferral of $4,152, taxable refunds or credits of $2,968, a capital loss of $1,500, taxable amount of pensions/annuity of $15 and pass-through income from Tauck Tours, Inc. of $544,298. Mr. Tauck's total gross income was $908,087. Mr. Tauck's federal income tax for 2004 was $147,228. The court notes that he overpaid his taxes in the amount of $1,106,199. He received a refund of $966,199.
In 2005, Mr. Tauck's income tax return (Exhibit P-1) shows total gross income of $4,143,740, comprised of W-2 wages of $137,674, taxable interest of $398,841, tax exempt interest of $507,548, a 401(k) deferral of $6,269, ordinary dividends of $70,150, a capital loss of $1,500, taxable pensions/annuity of $16, and pass-through income from Tauck Tours, Inc. of $3,538,559. The court notes that Mr. Tauck also had $507,548 of tax exempt interest and $51,457 of qualified dividends. In 2005, Mr. Tauck owed federal income taxes in the amount of $15,680. Mr. Tauck's total tax liability for 2005 was $1,391,022.
Exhibit 818 is Mr. Tauck's 2006 federal income tax return. This return shows taxable interest of $1,174,926, tax exempt interest of $434,524, qualified dividends of $53,193, taxable refunds credits. etc., of $6,009, a capital loss of $1,500, and pass-through income from Tauck Tours, Inc. of $6,218,678. Mr. Tauck's total gross income for 2006 was $7,462,487. In 2006, Mr. Tauck's total federal tax liability was $2,405,442. He overpaid his taxes by $98,618 and had that amount credited to his 2007 estimated tax liability.
Mr. Tauck testified that his tax overpayments are the result of a requirement that he make estimated tax payments in an amount equal to his tax liability for the prior year. These payments must be made regardless of what he actually receives as pass-through income from Tauck Tours, Inc.
It is clear to the court that Mr. Tauck derives sufficient income from his ownership in Tauck Tours Inc. that he does not have to work, and this court will not require him to work nor will it impute additional income to him for purposes other than an alimony award.
On February 14, 2006 (sealed Exhibit 109), Mr. Tauck submitted his letter of resignation to Tauck, Inc. in which he resigned as [REDACTED] Mr. Tauck remains a shareholder in Tauck, Inc. and currently owns 27.97% of the nonvoting shares of Tauck, Inc. and 20% of the voting shares. His current financial affidavit shows he owns 40,560 non-voting shares of Tauck, Inc. The remaining shares of Tauck, Inc. are owned by Mr. Tauck's siblings or GRATs (Grantor Retained Interest Trusts] as established by his siblings.
On, [REDACTED], Mr Tauck signed a promissory note in the principal amount of [REDACTED], on demand at any time after [REDACTED], or if not sooner demanded on [REDACTED], together with interest at the rate [REDACTED] (sealed Exhibit 104) Mr. Tauck testified that he made payments on this loan [REDACTED]. All loan payments were made from distributions to the defendant by Tauck Inc. Exhibit 798 (sealed) is dated April 9, 2007, addressed to Tauck family shareholders regarding the final distribution relating to 2006 earnings. On page 2, stock loan payments made by Peter Tauck, Robin Tauck, and Kirsten (also referred to herein as Kiki) Mahar are documented. The court notes that the loan payments by Peter Tauck and Robin Tauck are in the same amount. On page 3 of Exhibit 798, principal and interest payments made by Mr. Tauck from April 1998 through April 2007 are documented and demonstrate that Mr. Tauck has made 21 payments since the loan was made. Mr. Tauck testified that Exhibits 798 and 799 were essentially the written demand for repayment of the loan per his verbal agreement that the loan be repaid by deducting it from his distributions. The only years from 1998 to 2007, in which Mr. Tauck did not make a loan payment, were [REDACTED] Mr. Tauck testified he made approximately [REDACTED] in repayments on this loan during the marriage and never asked his wife permission to make those payments. The court finds that Mr. Tauck had a history of making payments on this loan during the course of the marriage and that by continuing to do so he did not violate the automatic orders.
The Amendment and Waiver to Shareholders Agreement (Exhibit 179, sealed), [REDACTED] Mr. Tauck denied that he voluntarily diluted his ownership by signing this agreement. He indicated that the voting shares in the company had been modified so each sibling had a 20% vote.
Mr. Tauck owned 10,000 shares of Tauck Travel Inc., prior to the date of the marriage which he obtained through purchases and bonuses. He obtained 19,200 shares as beneficiary of his mother's and father's GRAT, established March 4, 1993 and terminated in 2004. Under the terms of the GRAT, Arthur Tauck was to get [REDACTED] of the fair market value of the trust for [REDACTED] years and at the end of [REDACTED] years the shares would be distributed. In [REDACTED], Mr Tauck received [REDACTED] shares of stock plus cash and securities The stock and securities were deposited in the YHB account in March 2004 (Exhibit D-F7). Mr. Tauck also inherited 800 shares from his grandmother's estate. Mr. Tauck currently owns 40,560 shares of Tauck, Inc.
Mr. Tauck and his siblings heard from his brother, Arthur Tauck, III (AKA Chuck), in the fall of 2006, that he was interested in disposing of his interest in Tauck, Inc. Chuck sold his stock to Mr. Tauck's sisters, Robin Tauck and Kirsten Mahar, for [REDACTED] (Sealed Exhibit 804 and Sealed Exhibit DF-100). The parties stipulated (#792.21) that as of August 19, 1995, Peter Tauck's 8.53% interest in Tauck Tours, Inc. had a fair market value of $5,300,000. The parties further stipulated that Tauck Tours, Inc., is a predecessor of Tauck, Inc. and Peter Tauck held no other interest in Tauck Tours, Inc., Tauck, Inc., or any other Tauck entity on August 19, 1995. The parties further stipulated that as of August 19, 1995, the defendant's remainder interest in the Arthur C. Tauck GRAT, dated March 4, 1993, had a fair market value of $4,414,000. And the parties further stipulated that the defendants 40,560 nonvoting shares of Tauck Inc., valued at $840 per share, and the 3.77 voting shares of Tauck, Inc., valued at $883 per share, or are worth in the aggregate $34,073,728. The court considers the husband's premarital interest in Tauck, Inc. to be $9,714,000.00. The court considers marital equity in the Tauck, Inc. stock to be $24,359,728.00.
Mrs. Tauck testified that she "made feasts" for her husband and business associates on a regular basis but was unable to recall any specific occasions. Mr. Tauck testified he had no recollection of her doing so and the last business entertainment he could recall was in 2001 when he met with a business associate to discuss renovations to the former Aristotle Onassis yacht named Christina. The ship was later used by Tauck Tours for cruises around the Greek islands. Mrs. Tauck testified that she attended numerous Tauck Travel functions. Mr. Tauck testified the last time he recalled his wife attending a Christmas party was in 2003.
Mr. and Mrs. Tauck own two homes, one located at 272 Hillspoint Road, Westport CT, and the other located at Kelkare Road, Lake Placid, NY. The home in Westport was purchased in the fall of 1995 for $930,000. Its current value is $5,675,000 and the mortgage was paid off in August of 2004. The property was purchased utilizing the husband's savings. The couple tore down the existing home and spent $3 million building a traditional shingle style home. Mr. Tauck played an active role in the construction of the home. The $3 million for improvements came from the husband's savings, earnings, and a $1.5 million mortgage that was paid off in 2004 from a YHB account (Exhibit DF-7 DF-110). The YHB account was established from the cash and securities proceeds from the GRAT established by Arthur Tauck in the amount of $2,839,908.82 (Exhibit DF-7).
At the time of the marriage, Mr. Tauck owned a home on Waterside Terrace in Westport, valued at $500-$550,000 and had a mortgage of $142,894.00 (Exhibit P270). The non-marital equity in this home is approximately $357,106. This home was sold in the summer of 1998 so the couple could purchase their Hillspoint Road home.
The Lake Placid home was purchased in the year 2000 for $480,000 and is currently valued at $3,625,000. The Taucks originally purchased half an acre of land on the shore of Lake Placid with a small ranch home and attached garage. The existing home was torn down and the couple built a wood and stone Adirondack style home. The couple subsequently spent $2 million on improvements, paid for from savings and a mortgage on their home in Westport. The Lake Placid home was named Camp Grace in honor of Mr. Tauck's grandmother, Grace Sullivan, because his inheritance from his grandmother made the purchase possible. The Lake Placid home is also mortgage free. The Lake Placid home was purchased with the proceeds of Mr. Tauck's share in the C-Team Partnership (established sometime around November 1995, Exhibit 825]. The court notes that Grace Sullivan died before this couple was married. Mr. Tauck testified that his grandmother's assets were in limbo until the family decided how to handle the assets in a manner that would take advantage of the inheritance/income tax treatment. This partnership was set up to handle the inheritance from Grace Sullivan. The partnership was subsequently liquidated and Mr. Tauck received the sum of $545,000. As of the date of the marriage, Mr. Tauck owned a profit sharing plan at Tauck, Inc. with a value of $364,000 (Exhibit DF-2). That 401(k) is now valued at $1,190,097.75. The marital equity in this asset is $826,097.75.
In 1997, Mr. Tauck also acquired an interest in a ski lodge in Waitsfield, Vermont (Exhibit DF-136) with his siblings. Mr. Tauck testified he valued his 25% interest at $40,000. The interest in the ski lodge was gifted to Mr. Tauck and his siblings by his parents in lieu of cash. Mr. Tauck had not updated this value since the commencement of this action in 2005. He never had this property officially appraised and simply asked his brother (a co-owner) what he thought the property was worth. He testified that the last time the couple utilized this property was in 1999-2000. The court does not consider this asset marital property subject to a property distribution.
Additionally, Mr. Tauck owns a one-third interest, valued at $60,000, in plots 126 and 126A Fredricstead, St. Croix, which he acquired prior to the marriage. Mr. Tauck acquired his interest in the St. Croix property in 1989 or 1990 after hurricane Hugo. The court does not consider this to be a marital asset.
Mr. Tauck inherited a 20% interest in the Louttit Trust from his grandmother. He valued his 20% interest as of September 2005 at $75,595.51. The court does not consider this to be a marital asset.
Mr. Tauck invested $200,000-$300,000 in Placid River LLC, and testified that its current value is $2,152.67. Placid River, LLC was set up to provide funding for Spitfire Aviation. Spitfire was intended to create an all business-class transatlantic airline. Mr. Tauck testified that he discussed this investment with his wife before he made it, but the business never got off the ground because they could not raise the $40 to $60 million in venture capital to launch the business.
Mr. Tauck has two life insurance policies on his life from Pacific Life. The first policy has a death benefit of $500,000 and a current cash value of $77,623. The cash value of this policy as of the date of marriage was $50,745.35 [Exhibit DF-2]. The second life insurance policy has a death benefit of $150,000 and a cash value of $7,437. Mr. Tauck could not recall when he purchased these policies but believed it was probably before he married and the beneficiary of the policy is his estate as has always been the case.
As of the date of the marriage, Mr. Tauck owned an AG Edwards account with a value of $79,000 (Exhibit DF-3) and a TR Winston Company account with a date of marriage value of $184,759 (Exhibit DF-4).
In the summer of 2004, Mr. Tauck established a YHB account in his wife's name for estate tax planning purposes. He testified that it was the understanding of the couple that Mrs. Tauck could spend the interest and dividends of this account but not the principal. These funds were exhausted by the wife by the time of the trial.
Mr. Tauck has been an associate member of the Patterson Club in Fairfield, CT, since 1992. Associate members enjoy house, tennis, and pool privileges, and are placed on a waiting list for golf privileges. The approximate cost to join was $35,000 and membership is nontransferable. Mr. Tauck became a full member (golf privileges) of the Patterson Club in 1996 (Exhibit DF-139) and at that time paid an additional $7,500.
During the course of the marriage, the wife attended and completed her college degree and received a master's degree in social work. All tuition was paid for by the husband.
During the course of this litigation, Mr. Tauck paid $2,712,957 towards his wife's attorneys fees and costs.
Discovery Abuses and Legal Fees
The court has considered the recent Connecticut Supreme Court case of Ramin v. Ramin, 281 Conn. 324 (2007), in crafting orders regarding the award of attorneys fees.
The plaintiff argues that, but for the defendant's delay in turning over the hard drives in the possession of Attorney Russell, the case would have settled or the trial would have been significantly shorter. This argument fails on two levels. First, the wife had full access to the original hard drive of Toshiba I in late July 2005. The plaintiff's expert witness, Mr. Rabetsky, made a clone of the Toshiba I hard drive in July 2005. Mr. Rabetsky's analysis of the contents of that computer led to a flurry of ex-parte motions alleging the husband had possession of child pornography in August 2005. In addition, a $20 million PJR on the husband's assets was issued based on the affidavits of the plaintiff and Mr. Rabetsky. Second, it is disingenuous for the plaintiff to argue that the delay in turning over the hard drives harmed her when expert witnesses for both the plaintiff and defendant concluded that Mr. Tauck could not have been responsible for the suspected child pornography found on Toshiba I. This pornography was downloaded some time between May 1, 2005 and May 10, 2005. All of the circumstantial evidence points to the wife or someone on her behalf deliberately planting the suspected child pornography on Toshiba I. In addition, eventually all the data storage devices were turned over to the FBI/US Attorney's office and copies were simultaneously turned over to the plaintiff and defendant. The court made it abundantly clear on numerous occasions during the trial that both plaintiff and defendant would have the full opportunity to have the data storage devices analyzed by their experts prior to the close of evidence. Counsel for both parties had the opportunity for "diligent investigation and preparation, full and fair disclosure, for a searching dialogue about all the facts that materially affect their clients' rights and interests . . ." Grayson v. Wofsey, Rosen, Kweskin Kuriansky, 231 Conn. 168, 176, 646 A.2d 195 (1994). Plaintiff's counsel more than fulfilled their ethical obligation to give their client a "[100] percent" effort on her behalf. The plaintiff on the other hand made false allegations against her husband of a monstrous nature that had the potential to damage his reputation and his relationship with the children irreparably. The court has taken into consideration the scandalous and false allegations made by the plaintiff (and the harm they would have on the father's relationship with his children) in connection with this litigation when making the custody and financial orders in this case.
Fault
Mrs. Tauck testified that the marriage began breaking down in 2002 while she was pregnant with her last child. She testified that her husband was uninvolved in the pregnancy and did not appear to be attracted to her. She began to suspect that her husband was either having an affair or was homosexual. Prior to filing for divorce, she hired private investigators to follow her husband and on her own, or with the assistance of others, examined the contents of his Toshiba I laptop computer. She found a diary of Mr. Tauck's that had been in his computer since approximately April 2005. The contents of this diary disturbed her greatly as it detailed Mr. Tauck's frustrations with her parenting, her putting her own needs before those of her children, and her alcoholism.
The evidence is clear that Mr. Tauck was in Tahiti from May 1, 2005, through May 10, 2005. The evidence introduced at trial indicated that pornographic images that "might" be child pornography were placed on the temporary internet cache of Toshiba I while Mr. Tauck was in Tahiti. The evidence was also uncontroverted that Mr. Tauck had no remote access to Toshiba I from Tahiti. Additionally, Mr. Tauck's own expert witness testified that the Internet Explorer browser history from May 5, 2005 was deliberately deleted. This act would have prevented an ordinary user of the computer from finding the images that had been downloaded to the temporary internet cache. The only person who had the motive and opportunity to put the pornographic images on Mr. Tauck's computer is Mrs. Tauck. Based on all of the evidence introduced at trial, the court concludes that Mrs. Tauck, or someone on her behalf, placed pornographic images that may constitute child pornography on Mr. Tauck's computer while he was in Tahiti in May 2005.
Finally, the DVD audio and video recording of Mrs. Tauck's conversation with her son on January 8, 2007 demonstrates an attempt on Mrs. Tauck's part to coach her child into telling his therapist he'd been sexually abused by his father.
Shortly after the birth of the last child, Mrs. Tauck began drinking again after 16 or 17 years of sobriety. The court has already detailed the numerous relapses Mrs. Tauck suffered from 2002 through 2005, and December 2006 through March 2007. Mr. Tauck appeared to be supportive and patient with his wife's battle with alcoholism.
In addition to her alcoholism, Mrs. Tauck suffers from serious mental illness as is evidenced by her extensive mental health treatment since 2002.
Mrs. Tauck's behavior during the trial demonstrated to the court that she lacks many of the qualities needed in a good mother. Mrs. Tauck was consistently unable to arrive at court on time, raising the question of whether she's capable of getting her children to school and other activities on time. She failed to take several drug and alcohol tests thereby forfeiting time with her children under the pendente lite orders. Mrs. Tauck relegated many parenting responsibilities to hired help rather than perform them herself. She began drinking prior to the trial and continued drinking after the trial and on several occasions she chose to drink rather than be with her children during her parenting access time. She outright lied to the court under oath when she testified in January 2007 that she had not had a drink since August 2005. She later admitted under oath that she had been drinking on an increasing basis since December 2006. On March 1, 2007, she had a serious automobile accident which destroyed her car. Mrs. Tauck gave a witness, the police, and the court different reasons for the cause of the accident. It was later revealed that she failed to maintain automobile insurance on the car. All of the above acts represent irresponsible behavior at a time when Mrs. Tauck was under the microscope of the litigation process. This court has grave concerns about the physical and psychological safety of the minor children when Mrs. Tauck is not under the scrutiny of the court, the attorney for the minor children, and defendant's counsel.
Mr. Tauck concluded that the marriage was broken down irretrievably in early August 2005, as a result of his wife's claims that he was a pedophile and possessed child pornography.
The court finds that the actions of the plaintiff are the sole and exclusive cause of the breakdown of the marriage. The actions of the plaintiff were not only damaging to the minor children of the parties, they also had the potential to destroy Mr. Tauck's personal and professional reputation and livelihood. The level of vindictiveness and venomous behavior demonstrated by the plaintiff is inexcusable and unjustified.
CONCLUSIONS
At the beginning of this decision, the court boiled down the debris created by the parties into the following 4 questions:
1. Did the defendant possess child pornoaraphy?
The evidence produced at trial failed to prove that the defendant possessed computer generated child pornography. Evidence was introduced demonstrating that someone ( NOT Mr. Tauck who was in Tahiti), on May 5, 2005, with access to the Tauck family home in Westport, CT, gained access to the computer, performed word searches, and accessed web sites that placed images in the Toshiba I internet cache that may have been child pornography. The evidence is incontrovertible that Mr. Tauck was in Tahiti at this time and could not remotely access the computer. The evidence was clear that Mrs. Tauck had her husband's computer password, was in the family home on May 5, 2005, knew where the Toshiba I computer was stored, and had motive to plant child pornography on her husband's computer.
CT Page 16511
2. Did the defendant sexually abuse any of his children?
DCF and Dr. Robson investigated the allegations of sexual abuse of the minor children. Dr. Robson found that abuse was unlikely or highly unlikely and DCF did not substantiate the allegations of abuse. Dr. Lustman, Mr. Tauck's therapist, did not find that Mr. Tauck presented as a pedophile. The court does not find these allegations were proven by the plaintiff.3. Is the wife an active alcoholic?
The answer to this question is an unqualified yes. The wife initially testified that her last drink was sometime in August 2005, however, as the trial continued, she testified in March 2007, that she has been consuming alcohol in increasing amounts since December 2006.
4. Does either parent suffer from any mental health issues that impair his or her ability to parent?
Mr. Tauck suffers from Attention Deficit Disorder and must be hyper-vigilant when caring for the minor children to assure their physical safety. The court has ordered that Mr. Tauck employ the services of a full-time nanny to assist him in caring for the children and agrees with Dr. Robson that a second trial of ADD medication is in order.
Mrs. Tauck suffers from significant mental health issues and is in desperate need of a competent psychiatrist to address those issues directly as opposed to the expensive hand-holding she has received from her current therapist. While the wife's behavior has been reprehensible, the court does have sympathy and compassion for a woman who grew up under the horrific conditions she did. In addition, Mrs. Tauck suffers from a dual diagnosis consisting of alcohol addiction and a psychiatric disorder. The court orders regarding custody and access are not intended to be punitive but to protect the physical and mental health of the children and, at the same time, give mother strong motivation to seek the professional assistance she needs. The Tauck children need and deserve two healthy parents. Mrs. Tauck is an active alcoholic with a troubled and traumatic childhood who needs extensive mental health treatment so that her childhood trauma is not passed on to her children. Unless and until she receives the extensive help she needs, she cannot parent her children without doing them significant emotional damage.
ORDERS
After considering all of the statutory criteria set forth in General Statutes § 46b-56 as to custody of minor children, § 46b-84 as to support of minor children, § 46b-215a-1 et. seq., Regs. Conn. State Agencies, as to child support, § 46b-62 as to counsel fees, § 46b-81, as to assignment of property and transfer of title, § 46b-82, as to the award of alimony, § 46b-84, as to medical insurance for minor children, together with applicable case law and the evidence presented here, the Court hereby enters the following orders:
1. DISSOLUTION OF MARRIAGE
A decree dissolving the marriage, on the grounds of irretrievable breakdown, shall enter on September 21, 2007.
2. CUSTODY
Sole custody of the parties' minor children shall be awarded to the Defendant, Peter Tauck, subject to the Plaintiff's access schedule as more fully set forth below. Mr. Tauck shall employ the services of a nanny full-time, including weekends, to assist him with caring for the minor children during the hours they are awake. It is not the intention that the nanny act as a supervisor, rather that she/he assist Mr. Tauck in overseeing the safety of 4 active children. In addition, father shall continue his treatment with Dr. Lustman until he is discharged by the psychiatrist and shall attend 2 AA meetings per week for a period of 6 months from the date of the decision.
The Plaintiff, Nancy Tauck, shall have parenting time with the minor children as follows:
(a) Until such time as she provides certification to the AMC that she has successfully completed an in-patient alcohol rehabilitation program as previously ordered, she shall have supervised telephone contact with the minor children once a day for a maximum of ten (10) minutes per child. All telephone calls shall be made after the children have eaten dinner and at least 1/2 hour prior to their bedtime. Mother shall say nothing during these telephone conversations to upset the minor children or blame their father for her absence from their lives. Telephone access shall continue as Mrs. Tauck satisfies each successive stage of visitation ordered by the court.
(b) Once mother has satisfied the conditions of paragraph (a) above, she shall immediately engage in therapy with an experienced alcohol rehabilitation specialist, who is a psychiatrist, who has a specialty in the treatment of substance abuse. The AMC shall be notified immediately (defined as within 24 hours) in writing (prior to treatment commencing) as to who mother has chosen to be her psychiatrist. During the first six (6) months of treatment, appointments shall occur at a minimum of one face-to-face meeting per week. Additional appointments shall be scheduled at the discretion of the treating psychiatrist. Thereafter, the frequency of appointments shall be at the discretion of the psychiatrist. The plaintiff shall follow all treatment recommendations of the psychiatrist including, but not limited to, attendance at AA meetings, anti-craving medication, frequency of sessions, length of treatment, recommendation for extended in-patient treatment given mother's dual diagnosis and the like. The court finds that the mother's therapy is in the best interest of the minor children in light of the allegations she has made against the father, the report of Dr. Robson, and the evidence admitted at trial. Dr. Robson's report and a copy of the un-redacted decision of the court shall be provided to mother's treating psychiatrist by the Attorney for the Minor Children. The AMC shall be provided with a release from mother so he may be advised of mother's compliance with these orders. It is not the intention of the court for the plaintiff to waive her right to confidentiality in her treatment but it is in the best interests of the minor children that the AMC be advised if mother is scheduling and keeping appointments, taking medication as required and directed, maintaining sobriety, and the like.
The treating psychiatrist shall advise the AMC immediately in writing of any noncompliance by the plaintiff with his/her treatment protocol. The AMC shall immediately report to the court any noncompliance by the plaintiff by appropriate motion. The uninsured cost of treatment shall be at the mother's expense.
(c) Mother shall continue to be monitored by Mr. Magnano, as the court has previously ordered, for the consumption of alcohol and/or drugs, utilizing the ETG testing procedure agreed to by mother during the trial. Monitoring shall continue for a period of 2 years from the date of judgment. The monitoring/testing shall be completed every three (3) days (the time period for which the ETG test is valid). Mrs. Tauck shall provide Mr. Magnano with a home, cell and work (if applicable) telephone number where she can be reached AT ALL TIMES. Mother shall have her cell telephone charged, operable and with her each and every time she leaves her home. Mother shall have one hour from receipt of a telephone call/message from Mr. Magnano to be tested. A positive test, failure or refusal to test shall cause mother's access to the minor children to revert to that described in paragraph (d) below. Mother shall be required to repeat each and every step as outlined below before she has reached the final access intended by the court. In addition, any positive results, failure to respond to a request for a test, or refusal to test shall result in immediate notification to the AMC and the defendant's attorney. Mother shall be solely responsible for the cost of all testing and shall promptly pay all invoices within 7 days of receipt. Mother's failure to pay the invoices for drug and alcohol testing and the termination of testing for nonpayment shall be considered a refusal to test and treated as such.
(d) The children's therapist, Jean-Paul Marachi, MD., shall recommend a separate therapist to supervise and provide therapeutic contact for three hours per week between mother and children for a period of six (6) consecutive weeks. Dr. Marachi shall notify the plaintiff, defendant, and the AMC in writing of his recommendation of a therapist for this visitation. The AMC shall consult with both parents and schedule the initial appointment for mother and children. Mother shall be solely liable for the cost of the therapeutic visitation. The therapeutic visitation shall commence upon mother's successful completion of an alcohol rehabilitation program ordered in paragraph (a) above. Sessions shall take place at a location chosen by the therapist. It is the court's intention that this therapist monitor mother's interaction with the minor children to insure if is psychologically healthy for the minor children. It is the court's specific intention that the mother not engage in disparaging remarks to the children about their father, that she refrain from coaching them in making allegations of abuse by their father, and that she make these sessions a priority (in that she appears on time for the sessions and does not cancel without a written medical excuse). It is in the best interests of the minor children that no privilege attach to these sessions. Weekly written reports of mother's progress shall be made to the AMC and her treating psychiatrist. In the event mother fails to follow the recommendations of the supervising therapist, fails to avail herself of the supervised visits available to her, or appears late for the visits, the period of supervision shall be extended by an additional two weeks for each violation of the above.
(e) After mother successfully completes the steps outlined in paragraphs (a-d) above, she shall have supervised parenting access to the minor children on alternate Saturdays from 10 a.m. to 4 p.m. for a period of one (1) month and expanding to 10 a.m. to 7 p.m. after the successful completion of the first month of supervised visits. The court requires that mother be personally present for every minute of these visits. Mother shall be supervised by an individual from Mr. Puebla's supervised visitation group (Family Counseling and Mediation Center) and the visits may take place at mother's home or in a public place. Transportation of the children to and from visitation shall be provided by the father or his designee. Transportation during the visitation shall be by mother's designee (but not by mother). Mother shall be responsible for the payment of the supervisor for his/her services.
(f) After mother has successfully completed two (2) months of supervised visitation pursuant to paragraph (e) above, her alternate weekends shall be expanded to include Saturdays from 10 a.m. to 7 p.m. and Sundays from 10 a.m. to 7 p.m. for two (2) months. All of mother's visits shall be supervised by a professional supervisor provided by The Family and Mediation Center. The cost of supervision shall be mother's sole expense. Mother shall be personally present for 100% of her parenting time.
(g) After successfully completing steps (a-f) above, mother shall have parenting access on alternating weekends from 10 a.m. on Saturday, overnight until Sunday evening at 7 p.m., for a period of two (2) months. All visits shall be supervised as provided for above and the cost thereof shall be mother's sole responsibility. Mother shall be personally present for 100% of her parenting time.
(h) After mother successfully completes steps (a-g) above, her visits shall no longer be fully supervised but shall be randomly spot checked by Mr. Puebla's Family and Mediation Center once a day for a period of six (6) months. Mother shall be personally present for 100% of her parenting time. However, mother shall be required to use the services of a nanny/child care provider during all of her subsequent parenting time as ordered in this paragraph and below, including overnights. This individual shall not be a friend or relative and mother shall be liable to pay the cost of this household help.
(i) After successfully completing steps (a-h) above, mother shall have parenting access alternating weekends from 10 a.m. on Saturday, overnight until Sunday evening at 7 p.m., unsupervised for a period of two (2) months. Transportation to and from visits shall be provided by the father. Mother may transport the children during her visitation as long as her automobile is registered, fully insured and she has maintained 100% sobriety. Mother shall be personally present for 100% of her parenting time. She shall provide the father with written confirmation of insurance coverage of her automobile 1 week prior to the commencement of this phase of visitation. Failure to provide such documentation shall delay the beginning of this phase of visitation until compliance. Mother shall continue to use the services of a nanny/child care provider during this phase of visitation as provided for above.
(j) After successfully completing steps (a-i) above, mother shall have parenting access on alternating weekends from pick-up after school on Friday until drop-off at school on Monday morning for a period of two (2) months. These visits shall not be supervised and mother shall be allowed to transport the children in a fully insured automobile. It is mother's obligation to pick-up and drop-off the children at school on time, all the time. Any absences from school shall require a note from the child's physician verifying that the child was ill and unable to attend school. Mother shall be physically present for 100% of her parental access time. Mother shall continue to use the services of a nanny/child care provider during this phase of visitation as provided for above.
(k) After successfully completing steps (a-j) above, mother shall have parenting access every Wednesday from pick-up at school to drop-off at school Thursday morning. Mother shall be physically present for 100% of her parental access time. Mother shall transport the children to school on time. Any absences from school shall require a note from the child's physician verifying that the child was ill and unable to attend school. Mother shall continue to use the services of a nanny/child care provider during this phase of visitation as provided for above.
(l) If mother is found to have consumed drugs or alcohol, refused or failed to appear for testing for drugs and/or alcohol, or violates any of the conditions of her visitation, her parenting access shall revert to that described in paragraph (d) above and she shall be required to repeat all steps from (d-j) again.
HOLIDAY AND VACATION VISITATION
At such time as mother has parenting access as established in paragraph (k) above (it is the court's intention that she shall have successfully completed (a-k)above) in addition to the parental access set forth above, the following additional parenting schedule shall apply:
(1) During Monday school holidays, the children shall be with the parent with whom they spent the weekend. By way of example, if the Monday Martin Luther King holiday follows the Plaintiff's alternating weekend, then the children shall be with the Plaintiff for her alternating weekend commencing at Friday after school, concluding with the Martin Luther King holiday, when the children are returned to school on Tuesday morning.
(2) The parents shall alternate the winter (February) and spring (April) school vacations. If the children become enrolled in a school which does not have both a winter and spring school recess, the parents shall divide the children's school vacation in such a manner so that each parent has approximately one-half (1/2) of the time. Mother shall be physically present for 100% of her parental access time. These holidays will be rotated on an annual basis, with the Father having the children during the winter school vacation 2008.
(3) The parties shall alternate the Christmas holiday such that one parent shall have the children from the close of school prior to the Christmas holiday until Christmas Day at noon, when the children shall be delivered to the other parent's residence. The children shall then spend from Christmas Day from 10:00 a.m. through 5:00 p.m. on the last day of the Christmas/New Year's holiday prior to the resumption of school. In 2007 mother shall not have had the time required to complete the steps required to have full access to the children on the Christmas holiday. Therefore, she shall be entitled to spend from noon on Christmas Day until 3 p.m. Christmas Day with the children in the family home in Westport, CT. Father shall leave the family home during mother's visitation for Christmas 2007. She shall be supervised by Mr. Puebla's Family and Mediation Center during the Christmas 2007 visitation. Mother shall be solely liable for the cost of supervision and shall make arrangements for supervision no later than November 1, 2007 so staffing is not a problem during the holiday. In 2008, the children shall be with father from the close of school prior to the Christmas holiday until Christmas Day at 10:00 a.m. and with mother, from Christmas Day from 10:00 a.m. through 5:00 p.m. on the last day of the Christmas/New Year's holiday prior to the resumption of school. Mother shall be physically present for 100% of her Christmas holiday parental access time.
(4) Each parent shall be entitled to two (2) weeks of summer vacation, subject to the children's camp schedules. In even numbered years, the mother shall choose her weeks of summer vacation on or before March 30th and notify the father in writing; and the father shall make his choice on or before April 30 and notify mother in writing. In odd-numbered years, the father shall make his choice of summer vacation on or before March 30 and notify mother in writing; and the mother shall make her choice of summer vacation on or before April 30 and notify the father in writing. Mother shall be physically present for 100% of her summer vacation parental access time.
(5) The children shall spend Mother's Day weekend from Friday after school to Monday return to school and the Mother's birthday with the Wife (Mother shall be physically present for 100% of her Mother's Day parental access time): the children shall spend Father's Day weekend from Friday after school to Monday return to school/summer camp and the Father's birthday with the Husband.
(6) The parties shall alternate the minor children's birthdays each year, however, that parent shall be personally present during his/her parenting time on the child's birthday. If other commitments prevent the parent from being personally present, that birthday shall be spent with the other parent and not with third-party caretakers. In 2008, Father shall celebrate and plan Colin's and Curtis' birthday party with him and Mother shall celebrate and plan Charlie's and Alexandra's birthday party with them. Each parent shall notify the other (in writing 2 weeks in advance) of his/her plans for the children's birthdays. The parent who is not planning the party shall have the opportunity to attend the party each year. Mother and father shall be physically present for 100% of their parental access time on the children's respective birthdays.
(7) The court is specifically ordering that mother be physically present for 100% of her parental access time as a result of her absence from the children during the Easter 2006 holiday.
MISCELLANEOUS
(8) The parties shall use the OurFamilyWizard.com web site to communicate information regarding the minor children. Father shall send Mother an e-mail through the web site every Monday and Mother shall respond by Wednesday. The parents are both ordered to use the web site for all other non-emergency communications and scheduling of the children's activities and visitation.
(9) The parents shall confer concerning major education issues such as repeating or skipping a grade, assessing for special education programs or gifted programs, but the Father shall make the final decision. Father testified it was his intention that the children attend private elementary and high school. He shall make the decision if private school shall be continued and shall have the obligation to pay the tuition if he decides that all or some of the children shall attend private school.
(10) The parents shall both be listed as person(s) to be notified in case of an emergency. Their names, telephone numbers and addresses shall be listed on all school, caretaker, health care provider and activity records and updated within 48 hours of any change of information.
(11) The parent who has responsibility for the children on a particular day may participate in activities such as field trips or athletic activities, but the other parent may attend if the general public is invited. Neither parent shall interfere or create difficulties if both are attending an event involving the children.
(12) Father shall inform Mother before planning enrichment activities, such as music lessons or sporting activities. In the event sports activities fall on Mother's parenting time she shall be responsible to see that the child is delivered to the practice/game on time.
(13) Father shall consult with Mother about summer sleep-away camp or day camps by March 1st of each year. Father's decision shall be final but he shall seek and encourage the input of Mother on the selection of the camp or other summer activity.
(14) Child Care
If Livia Rivera terminates her employment with the Tauck's, the Father shall have the responsibility of procuring alternative childcare arrangements and/or providers. The Father shall consult with the Mother and provide the Mother with names, addresses and telephone numbers so that the Mother may participate in interviewing the proposed providers. The Father shall procure the childcare arrangements and/or providers with due regard to the preferences and concerns of the Mother. This provision does not apply to weekend or evening childcare or baby sitters. Each parent shall provide the other with the names and addresses of babysitters and child care givers that they intend to use during the evening or weekends.
The Mother is required under these orders to have a nanny/child care provider with her during her parenting time with the minor children. She shall consult with the Father and provide the Father with names, addresses and telephone numbers of the proposed nanny/child care provider so that the Father may participate in interviewing any new proposed providers. The Mother shall procure the childcare arrangements and/or providers with due regard to the preferences and concerns of the Father.
(15) Medical Care
The Father and Mother shall both have the right to be present with the children for medical check-ups and treatment. Father shall notify Mother of regularly scheduled well care visits within 48 hours of making the appointment. In case of an emergency, either parent shall take the children for treatment. The other parent shall be notified as soon as practicable of the incident.
Information about the children's medication shall be exchanged by any convenient means in addition to utilization of the CT Page 16520 www.OurFamilyWizard.com web site.
In case of an emergency, the care-providing parent shall contact the other parent. Mother and Father shall both be entitled to complete and full information from any physician, therapist, psychologist, psychiatrist or similar type professional attending the children for any reason and from any teacher or school giving instruction to the children.
(16) The children shall continue to be known by the Father's surname and the terms "mommy/mom" and "daddy/dad" will continue to be used to refer to the parties.
(17) Mental Health Care
The children shall remain in the treatment of their current mental health providers for as long as the providers, in their professional opinion, believe it is necessary for the best interest of each child. It is father's responsibility to assure that the children attend appointments on time and that new appointments are scheduled. Both parents shall be able to speak with the mental health professional(s) regarding the children's progress or to address ongoing concerns. The Attorney for the Minor Children shall provide unredacted copies of Dr. Robson's first and second reports, and a copy of the court's decision, to the children's mental health providers.
(18) In matters concerning parenting, each party shall endeavor to further the best interests of the minor children and facilitate close ties between the minor children and the other party. Neither party shall arbitrarily hinder nor interfere with the relationship of the minor children with the other party, and each party shall contact the other to discuss parenting arrangements with as much advance written notice as is reasonably practicable.
(19) Each parent shall exert every reasonable effort to maintain free access and unhampered contact between the minor children and the other parent, subject to the terms of this order. Neither parent shall do anything which may estrange the minor children from the other parent or which may hamper the free and natural development of the minor children's love and respect for the other parent.
(20) Except as provided for above, regarding mother's telephone access until she completes an in-patient alcohol/drug rehabilitation program, each party shall be entitled to reasonable telephone contact (once per day, during reasonable hours of the day and evening, but in no event later than 8:00 p.m.) with the minor children while said children are in the care of the other, including holidays and vacations, at the expense of the contacting party. The minor children shall be entitled to unfettered telephone contact initiated by the minor children to each parent.
(21) Each party shall keep the other reasonably informed as to the whereabouts of the minor children at all times when they are with the plaintiff or the defendant, as the case may be. The parties shall provide each other with an advance itinerary listing the dates, addresses and telephone numbers of each place he/she intends to take the minor children at any time the minor child does not sleep at his/her residence for two or more consecutive nights during any period. When traveling with the minor children for vacation or holidays, the husband shall be accompanied by another responsible adult of his choosing. When traveling with the minor children for vacation or holidays, mother shall be accompanied by her designated nanny/child care provider at all times. Mother shall be liable for the cost of such nanny/child care provider.
(22) Each party shall keep the other informed of his/her place of residence and telephone number, cell phone number and work telephone number, and shall promptly notify the other of any changes during the minority of their children.
(23) Each party shall have free and unhampered access to all records and information concerning the welfare of the minor children including, without limitation, medical, psychological, and dental, and to be furnished with copies of all reports given by such people directly from the provider/institution. Further, each party shall be entitled to all information from any teacher or school giving instruction to the minor children, and to be furnished with copies of all reports and documents (which shall also include notices of parent meetings, school performances, extra-curricular activities and the like) given by such teacher(s) or school(s) directly from such teacher(s) or school(s). Each party shall be responsible for securing such medical, educational or other information for himself/herself directly from such third parties and neither party shall restrict or interfere with the other party's right to receive such information.
(24) The parties shall keep each other advised of upcoming events and activities in the academic and social life of the minor children so that each may attend and participate in those events and activities. The parties shall also share equally any tickets distributed or otherwise available for school and extra-curricular activities/events, if same are limited in number. Each party shall bear the cost, if any, of his/her share of such tickets.
(25) Neither parent shall disparage the other parent in the presence of the minor children and shall make their best efforts to insure no other person shall engage in an inquiry of the minor-children.
(26) The husband shall hold the passports of the minor children.
(27) Pursuant to the Amendment to Connecticut Practice Book Section 25-26(g), effective October 1, 2007, the court is specifically ordering that the plaintiff shall be required to file a Request for Leave to file a Motion for Modification of Custody and/or Visitation.
(28) Neither parent shall allow the minor children to sleep in the same bed with them. Neither parent shall bathe with the minor children. Neither parent shall allow the children to swim in the nude in any location where they may be observed by the public including but not limited to the Lake Placid, NY home. The parents shall use a wash cloth when bathing the children if any of them are not capable of completing the task his/herself.
3. CHILD SUPPORT
Pursuant to the Child Support Guidelines, the mother should be paying child support in the amount of $765 per week for the minor children. The court is deviating from the child support guidelines based on the nature and extent of the father's economic resources and the mosaic of the alimony and property orders entered herein and is not requiring the plaintiff to pay child support to the defendant.
4. ALIMONY
The husband shall pay the wife alimony in the amount of $33,333 per month for a period of six (61 years from the date of dissolution. The husband shall pay the sum of $33,333 on the first day of each month. Thereafter, the husband shall pay alimony in the amount of $20,833 for an additional period of two (2) years. Alimony shall terminate on the earliest to occur of the husband's or wife's death, the wife's remarriage, 8 years from the date of judgment, or cohabitation of the wife pursuant to the statutes and Gervais v. Gervais, 91 Conn.App. 840 (2005).
Alimony shall be modifiable as to amount if the wife earns in excess of $75,000 net income per year. Alimony shall be non-modifiable as to term. Alimony shall be a federal and state tax deduction for the defendant and income to the plaintiff for federal and state income tax purposes.
5. MEDICAL INSURANCE AND UNREIMBURSED MEDICALS — CHILDREN
The husband shall maintain, at his sole expense, the present medical/dental insurance for the children which is provided to him through Tauck Inc. If said insurance is no longer available to the husband through Tauck Inc. at a reasonable cost, the husband shall be liable for the cost of obtaining private medical and dental insurance. The husband shall pay 100% of all unreimbursed medical and dental expenses for the minor children. However, the wife shall not take the children to medical providers not covered by the husband's medical/dental insurance without his advance written consent.
The provisions of 46b-84(e) shall apply.
6. MEDICAL INSURANCE AND UNREIMBURSED MEDICALS — WIFE
The husband shall maintain COBRA medical and dental insurance for the benefit of the wife at his expense for the maximum period allowed by law. The husband's COBRA payments are considered by the court to be additional alimony and shall be deductible by the defendant for tax purposes and includable in the defendant's income. The wife shall be solely liable for her unreimbursed (including expenses that are not covered by the COBRA insurance) medical and dental expenses. If the wife chooses to utilize medical/mental health/dental providers not covered by the insurance or seeks procedures not covered by the plan she shall be solely liable for those expenses.
7. LIFE INSURANCE
The husband shall maintain decreasing (decreasing in the amount of $1,400,000 for the first 5 years, in the amount $400,000 for the sixth year and $300,000 per year thereafter) term life insurance on his life, naming the wife as irrevocable beneficiary, in the amount of $10 million until his alimony and property settlement obligations are satisfied (8 years for the alimony obligation and 5 years for the property settlement unless he pays it in a lump sum). The husband shall maintain decreasing term life insurance in the amount of $5 million naming the minor children or a trustee for the minor children as beneficiaries until the youngest child is no longer a full-time student or attains the age of 23 years, whichever first occurs. The insurance for the benefit of the minor children may decrease by 1/4 as each child reaches the age of 23 or is no longer a full-time undergraduate student. Father shall have the right to name a trustee to hold the proceeds of the life insurance for the support, education, health and welfare of the minor children.
8. CO-PARENTING THERAPY
The parties shall immediately seek the assistance of one of the following: the PEACE Program, established by Beacon Behavioral Services, LLC, Avon, CT; Kids First, Family and Child Associates in Middletown, CT; the PACT Program (Parents Allied Co-Parenting Together) in New Rochelle, NY; the Connecticut Resource Group of Waterbury, CT; the Birmingham Group Health Services of Ansonia, CT; Changing Directions, Danbury, CT; COPE Program (Cooperative Options for Parenting Effectively), Brookfield, CT; Focus on KIDS (Knowledge Insight Decisions Solutions), Connecticut Council of Family Service Agencies; Enduring Families, Branford, CT, or a similar program to facilitate the parents' attempts to peacefully confer with each other on all important matters pertaining to the children's health, education, welfare and upbringing. The parties shall equally share the costs associated with the selected program or therapist. The AMC shall confer with both parents and contact the program to make the initial appointment for the parties. Thereafter, the parties shall be responsible for scheduling weekly appointments in compliance with the program requirements. All appointments shall be in person and not conducted by telephone. The court notes that the co-parenting therapy will not be covered by health insurance and orders the fees to be equally divided by the parties.
9. PROPERTY SETTLEMENT
a. The husband shall have exclusive possession of the family home located at 272 Hillspoint Rd., Westport, Connecticut. The wife shall transfer all her right, title, and interest in and to the real estate at 272 Hillspoint Rd. to the husband within 30 days of the date of judgment. The husband shall be solely responsible for all expenses relating to said home including but not limited to real estate taxes, maintenance, utilities, and homeowners insurance;
b. The husband shall have exclusive possession of the family home located at Kelkare Road, Lake Placid, NY. The wife shall transfer to the husband all her right, title, and interest in and to the real estate located at Kelkare Road, within 30 days of the date of judgment. The husband shall be solely responsible for all of the expenses relating to said home including but not limited to real estate taxes, maintenance, utilities and homeowners insurance;
c. The husband shall have as his sole property his 40,560 shares of Tauck Inc. (not publicly traded), his 20% in the Louttit trust, one-third interest in plots 126 and 120A, Fredricstead, St. Croix, and one-quarter interest in the property located at Waitsfield, Vermont;
d. The husband shall transfer to the wife by QDRO/rollover to a qualified 401(k) the sum of $413,048 from his Tauck Inc. 401(k) profit sharing plan within 30 days of the date of judgment;
e. The husband shall pay as a property distribution the sum of $7 million within 90 days of the date of judgment as follows: $5 million payable to the wife and $2 million payable directly to the wife's attorneys for fees and costs. In addition, he shall pay the wife the sum of $1 million annually on September 1st for a period of five years from the date of judgment, commencing in 2008. The husband shall have the option of paying the wife $4.75 million within 90 days of the date of judgment in lieu of making the yearly $1 million payments for five years. It is the court's intention that these sums are intended to be a property settlement and shall not be taxable as income to the plaintiff;
f. The husband shall keep as his sole property the following assets:
Vanguard account ending in #8958 with an approximate balance of $229,097.82 as of July 10, 2007, Banc of America's savings account ending in #6529 with a balance of $100.65 as of May 7, 2007, Bank of America's savings account ending in #4357 with a balance of $273.56 as of May 7, 2007, Bank of America checking account ending in #364012 with a balance of $45,383.09 as of July 11, 1997, YHB account ending in #4395 with a balance of $4,365,965.88 as of June 30, 2007.
g. The husband shall be entitled to the cash value of his life insurance policies.
Miscellaneous Property
A. The husband shall be the sole owner of the following motor vehicles and property:
i. 2000 BMW model M5J with an approximate value of $24,500;
ii. 2004 Ford Explorer with an approximate value of $5,700;
iii. All of the furniture, furnishings and fixtures located at 272 Hillspoint Rd., Westport, CT and Kelkare Road, Lake Placid, NY;
iv. two boats with a value of $35,000;
v. 1974 Toyota land cruiser with a value of $6,000;
vi. his membership in Placid River, LLC with an approximate value of $2,152.67;
vii. 1/2 the American Airline Frequent Flyer Miles as of the date of judgment;
viii. 41 ounce gold coins with a value of $26,584 as of July 11, 2007;
ix. Credit on Connecticut State Taxes in the amount of $25,218;
x. Patterson Club Bond 2007 and Patterson Club Security Certificate with a total value of $7,600;
xi. $40,000 worth of art work located in the family home;
xii. The Patterson Club membership;
xiii. The husband shall be entitled to use the long-term capital tax-loss carryover.
xiv. The attachment of the husband's YHB and Vanguard savings account is terminated.
B. The wife shall be the sole owner of the following motor vehicles and property:
The husband shall transfer to the wife all of his right, title, and interest in and to the 2000 BMW, in the defendant's name but driven by the plaintiff, with an approximate value of $14,951. The wife shall provide her own automobile insurance for any/all vehicles she owns/leases and shall be solely liable for the personal property taxes, license and registration for her vehicles;
ii. All of the furniture furnishings and fixtures located in her rental property on Redding Road, Fairfield, CT;
ii. All of the wife's personal possessions including jewelry and clothing;
iv. The wife's Dailey Hyland trustee account with a value of $13,302 as of July 10, 2007;
v. Fairfiled County bank account ending in #3802 with a value as of July 9, 2007 of $399, Wachovia account ending in #3527 with a value as of July 9, 2007 of $156, Wachovia account ending in #3530 with a value of $24,750 as of July 9, 2007, Fidelity account ending in #3090 with a value as of July 9, 2007 of $237, Park Dietz and Associates retainer in the amount of $1021.31; JetBlue Airways credit in the amount $3,000, Neiman Marcus credit in the amount of $5,585;
vi. 1/2 the American Airlines Frequent Flyer miles as of the date of judgment;
vii. Lost watch insurance claim;
viii. Inheritance from the estate of William Nemeth (if any).
10. DEBTS AND LIABILITIES
Except as provided herein, each party shall be solely liable for the debts and liabilities listed on his or her respective Financial Affidavit.
(a) Mrs. Tauck shall be liable for the balance she owes Dr. Lustbader for her treatment in the approximate amount of $65,000.00;
(b) The court finds the amount charged by Dr. Lustbader for his depositions by the defendant to be grossly unreasonable. The defendant shall pay Dr. Lustbader the sum of $45,000; any balance due, if pursued by Dr. Lustbader, shall be the wife's sole liability.
(c) The wife shall be solely liable for all amounts removed by her from her mother Suzanne Wagner's assets, utilizing a Power of Attorney, in the approximate amount as of 5/8/07 $301,731.43.
(d) The wife shall be liable for all outstanding loans she made during the pendente lite period.
11. EDUCATIONAL EXPENSES
The husband has sole discretion to determine whether the minor children continue to attend private school. The husband shall be responsible to pay the costs of the minor children's private school tuition as well as the pledge made to the Greens Farm Academy.
The court shall retain jurisdiction to enter an educational support order pursuant to C.G.S. § 46b-56c.
12. TAX RETURNS
The parties have filed separate tax returns since 2005. In the past, the parties filed joint tax returns. If there is any liability, cost, or penalty associated with the previous fillings of joint income tax returns, the party responsible for the penalty shall be solely responsible for same and indemnify and hold the other party harmless from same.
The husband shall be entitled to take all 4 children as dependents for income tax purposes if he benefits from the exemption. In any year he does not derive a benefit, the wife shall be entitled to take the minor children as exemptions for state and federal tax purposes.
13. ATTORNEYS FEES
The court has examined bills provided by all counsel for the defendant and as of July 29, 2007 the defendant has paid or owes $7,023,168 in attorneys fees, costs, experts and witnesses. The court has examined the bills submitted by all counsel for the defendant and finds the costs to be reasonable and necessary. The court specifically makes the finding that but for the false and spurious allegations made by the wife, most of these fees would have been unnecessary.
The court has examined bills provided by all counsel for the plaintiff. The court has no evidence before it that plaintiff's trial counsel knew her allegations against the husband were false until the very end of the trial of this matter. Plaintiff's counsel did everything in their collective power to prove the plaintiff's allegations against the defendant. They were unable to do so despite tremendous effort because the allegations were false.
The court finds the charges levied by Attorney Judd Burstein to be unreasonable because the plaintiff was charged $157,000+ for essentially a weekend's worth of work generated prior to the court hearing denying Attorney Burstein's Motion for Admission Pro Hac Vice. Attorney Burstein is not licensed to practice in the state of Connecticut and had limited experience in Connecticut matrimonial law.
The court has examined the bills of Brody, Wilkinson Ober and finds it impossible to extract the portion of the bill relating to the divorce from that relating to the wife's mother's finances and other financial advice not necessarily related to the divorce. The wife shall be solely liable for this bill.
The services rendered by the other law firms appear to be related to a civil suit filed by the plaintiff and Laurie Wright against Mr. Tauck and family after the taking of the children from Ms. Wright's home in late August 2005. The court finds these charges non-divorce related and the wife shall be solely liable for these charges.
Mrs. Tauck was billed for private investigation services by 4 different companies and/or individuals in the amount of approximately $96,000+. Since no witnesses testified from any of these companies, the court can only conclude they uncovered no relevant evidence and the wife shall be solely liable for these charges.
Dr. Marks, from Willows Pediatric Group, billed $10,000+ including days in which she was told she would be called as a trial witness, canceled patients, and then was not called. The court does not imply a criticism of Dr. Marks for charging for the time lost from her medical practice. The court finds that this is not a reasonable cost to expect the defendant to bear if plaintiff could not more accurately estimate when Dr. Marks would be needed as a witness; the wife shall be solely liable for these charges.
Despite the above, the fact remains that the plaintiff was a nonworking spouse with few assets in her name with which to pay counsel fees. If not for the false allegations she made, she would have certainly been entitled to an allowance to prosecute this action.
The court took all of the above into consideration in crafting the total mosaic of the property settlement, allowance of attorneys fees, and alimony orders.
14. FEES FOR THE ATTORNEY FOR THE MINOR CHILDREN
Due to the continuing duties of the AMC pursuant to this decision, the parties shall pay him a retainer of $25,000, 25% to be paid by the mother, 75% to be paid by the father, for his continuing services; payment to be made within 30 days of the date of this decision.
15. JURISDICTION
This court shall retain jurisdiction over all issues involving custody and access for a one-year period following this decision.