Counsel for the plaintiff: Wells Fargo In which branch?
The man: I don't remember the branch.
Counsel for the plaintiff: Don't remember the branch?
The man: Nope.
Counsel for the plaintiff: In which city?
The man: Or New York or California.
Counsel for the plaintiff: Or New York or California?
The man: Yes.
Counsel for the plaintiff: You don't remember the street or the branch, nothing?
The man: The street? I don't usually go to the bank. No, I don't remember the street" (See transcript of November 18, 2020, pp. 633-640).
- Under these circumstances, my impression is that the credibility of the man's testimony is one of the lowest imaginable, and I will add that I find it difficult to recall another instance in which I was impressed by any witness with such intensity.
- The second element is a breach of the duty of good faith and the increased duty of disclosure that the man has towards the woman, as he has absolute control over the source of the funds, their transfer between the various trusts, the management of the trusts, the selection of beneficiaries and the divisions made by the trusts - the family until the date of the rupture itself, and even more intensely afterwards. With regard to the management of the trusts, it should be noted that despite the man's attempt to prove that the woman was aware and informed, involved and knowledgeable, in fact it was proven that the woman constitutes a rubber stamp and nothing more than the documents that the man presents to her and also, if he wishes, a beneficiary of the trusts. It follows that after the date of the rupture, and on the man's orders, the woman was completely excluded both from the information about the funds and as a beneficiary of the trusts that she had until that date.
- As stated, the phenomenal expertise of the man, whose sole purpose is to ensure that when a matter reaches a judicial decision, the man and/or corporations under his control will be able to claim that the assets belong to someone, this is a person whose law, profession and art are the bread of his law. Therefore, I believe that the court would be extremely naïve if it examined the actions of the man as if he were a doctor or a teacher. We will recall the man's deceitful behavior, which in the past led him to pay a fine of $10 million for acts of economic manipulation. As it turned out to me, the man used this expertise in the present proceeding as well, and even more intensely. In this regard, see also my ruling in the decision of June 13, 2023, according to which: "With the necessary caution, I will note that the manner in which the man conducted himself in his interrogation in this proceeding was similar to the manner in which he conducted himself in the alimony case, where I wrote on the matter: "The father did not fully and accurately detail all of his income and rights in the manner expected of a party acting in good faith, to say the least. In addition to the father's omissions, his direct actions must be added to prevent the mother from receiving all the information regarding his rights and assets" (see family file 31787-07-16). I have already written about the man's lack of good faith in my decision, knowing that the woman has no other way to obtain the documents, despite orders that he agreed to sign, if only for this reason (see paragraph 47 of my decision). Since no allegations of forgery of documents were alleged, and since the respondent was offered three different times to come and be questioned about his affidavit and he refused to respond, it must be determined that nothing from the wife's affidavit supporting her request was contradicted. Moreover, it would not be unreasonable to believe that the man feared the outcome of his cross-examination, and therefore chose not to announce his consent to be questioned on his affidavit, despite the many opportunities given to him" (ibid., para. 17).
- I will mention that according to the law, the burden of bringing evidence, as opposed to the burden of persuasion, may shift from one side to the other with the accumulation of 'signs of deception'. This was discussed by the Supreme Court in Other Municipal Applications 8482/01 Union Bank of Israel v. Sandovsky, IsrSC 57(5) 776, 782 (2003) (hereinafter: the Sandovsky Case), to state: "The evidentiary force of these signals is to transfer the burden to the debtor, and he must show that the transactions were made in good faith or explain them in a satisfactory manner. Although the burden of persuasion remains on the plaintiff's shoulders, the more the information is in the defendant's possession and the more the plaintiff shows signs of fraud and factual circumstances that point to fraud on the part of the defendant, it will be possible to reduce the burden of proof imposed on the plaintiff" (paragraph 5).
- In accordance with these words, other municipal applications were held in 8128/06 Yitzhak Levinson v. Netanel Arnon (Nevo, February 3, 2009) and as an application of the precedent established in the Sandovsky case that: "The burden of persuasion is on the applicant for the declaration, and the court will be required to do so carefully, since this is a case of removing an asset from the hands of its registered owner... It should be noted that even if the level of proof required in such a case has not been fully determined, it is based on the existence of badges of fraud, which are the strongest of facts... Among the signs of fraud are connections between the transferor and the transferee; Keeping the benefit of the transferor and keeping possession in his hands; criminal investigations against the offender; filing an indictment against him; his conviction for fraud;suspicions of tax evasion; secrecy in economic activity; deviation from the usual way of doing business; Transfer of all the debtor's assets... "The evidentiary power of these signals is to transfer the burden to the debtor, and he must show that the transactions were made in good faith or explain them in a satisfactory manner" (Sandovsky, 776). This list is not closed and can be expanded or reduced, according to the special case" (paragraphs 13-14; see and compare also Other Municipality Applications 1680/03 Hannah Levy v. Eli Barkol, 58(6) 841 (2004) at p. 984; emphases added).
- In this state of affairs, I hold that the burden of bringing the evidence has been reversed. Since the man was the one who had unfettered control over the family property, and his procedural conduct as described above caused the woman great evidentiary damage, the burden of bringing evidence regarding the scope of the joint property, including the question of ownership of the residence, rests before him.
C.1.3 - Ownership of the residence:
- In view of the inherent difficulty in estimating the scope of the joint property, a major factor in the dispute revolves around the question of ownership of the residence, a tangible asset whose value can be estimated and its distribution determined. This is in view of the fact that the scope of the dispute on this issue is very broad, with all that this entails.
- The question of ownership of the residence will be discussed below in light of the judgment of the District Court in Family Appeal Authority 68222-10-18 of January 27, 2019, where it was held as follows (see p. 11 of the judgment, emphases in original): "If so, the burden is on the respondent [the wife - Y. ], to prove her version in the statement of claim that the residence was built and financed by her and her respondent husband [the man - Y. S.], During the course of their marriage, from their joint money, a different appeal was registered by the Applicant [Alabama - Y. S.] formally, and that the Applicant is owned or controlled by the Respondent (paragraphs 2, 4, 98, 99 of the statement of claim) - it rests entirely on her shoulders as a plaintiff. If she succeeds in proving these claims, she will be able to obtain the declaratory relief requested according to which she owns half of the residence, even without proving anything as to the relationship between the applicant and the trust" (p. 12, paras. 1-16 of the judgment).
- Hence, the burden of proof imposed on the woman in Family Appeal 68222-10-18 is to prove three cumulative elements: that the residence was financed by the couple from joint money during the marriage, that the registration of the residence appeal is only formal and that Alabama is owned or controlled by the man. In view of my decision, regarding the reversal of the burden of proof, the burden imposed on the man is to provide evidence to contradict the woman's evidence on the three aforementioned grounds. More than necessary, I will continue and discuss the arguments of the parties, even without my decision on the burden of proof, to show that either way, and without a doubt from the compilation, the woman has proved, beyond what is required in civil law, that the residence is the joint property of the parties and therefore it is subject to division.
The first foundation: the residence was financed by the couple from joint money during the marriage
- Since the family capital was held by the man and was under his sole control, only the man could present evidence as to how the purchase of the residence was financed. Alabama could have easily brought evidence that the residence was purchased with its own money - and it didn't. Admittedly, the woman must prove that the residence was purchased from joint funds, but this does not mean that she must show an influx of joint funds from the joint fund in order to purchase the house. The burden of proof does not mean that the woman must prove something directly, but rather that an alleged event occurred.
- In this case, it is clear and known that the entire family capital is in the hands of the man, that the man is the one behind the establishment of Alabama and that only he and/or his confidants know how the house was purchased and with what money. Needless to say, to the extent that the man and/or Alabama would show the transfer of funds from a source that is not shared by the parties for the purpose of purchasing the house, it would have been difficult for the woman to contradict the transfer of the funds and it would have been difficult for her to prove otherwise, but this was not the case before me. In this case, when all the information is in the hands of the man and Alabama and they absent it in a hurry, it is clear that as long as they were able to show otherwise, so it would have been done and it was not done, and the conclusion is the same and there is no other - the woman met the burden of proof.
- The rule is that a party is presumed not to withhold evidence from the court that would be in his favor, and therefore, if the defendants had refrained from bringing evidence, which, according to the dictates of common sense, would have contributed to the discovery of the truth, it can be assumed that this evidence would have worked to their detriment (see Mini-Many: Civil Appeal 50/89 Koppel v. Talkar, IsrSC 44(4) 603; Civil Appeal 465/88 Bank of Finance and Commerce v. Salima Matityahu et al., IsrSC 45(4) 651, 658;Civil Appeal 240/77 Shlomo Carmel in Tax Appeal v. Farfouri & Co. Ltd., IsrSC 34(1) 701).
- This conclusion fits in well with other evidence, including the man's own statements, and more on this later.
The second element: the registration of the residence appeal to Alabama is only formal
- The woman has in fact proved that the registration of the residence in the name of the Alabama company is purely formal, when de facto is fictitious. Below I will show how the formal registration is also intended, first and foremost, to protect the joint property, both during the joint life when the need arose to protect against potential creditors, and after the date of the rupture between the parties, when the man wanted to protect the residence from the woman.
- The man stated that he was the owner of the residence during the legal proceedings against him in the United States (see Appendix 4 to the wife's summaries). When the man was asked during the evidentiary proceedings before me about this statement, he refused to give a direct answer while evading, stuttering, and giving partial and inconspicuous answers, including that he had declared in the proceedings in the United States about his parents' residence. For example:
"Counsel for the plaintiff: From November 18, 2008 before the Honorable Judge Kaplan in the United States. You are being asked there by Assistant District Attorney John Hilbrecht regarding House B... You are asked- “Do you own that house”