Beyor v. Beyor ( 2015 )

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CARLTON E. BEYOR v. LAURA PAVANO BEYOR
(AC 36546)
Beach, Keller and Harper, Js.
Argued March 11—officially released July 28, 2015
(Appeal from Superior Court, judicial district of
Windham, Fuger, J.)
Robert D. Zaslow, for the appellant (defendant).
Rachel Kittredge Shipman, with whom, on the brief,
was Ross G. Fingold, for the appellee (plaintiff).
Opinion
BEACH, J. In this dissolution action, the defendant,
Laura Pavano Beyor, appeals from the judgment of the
trial court dissolving her marriage to the plaintiff, Carl-
ton E. Beyor, and enforcing a premarital agreement
(agreement) that was entered into by the parties. The
defendant claims that the court erred in enforcing it
because the agreement was unconscionable at the time
of enforcement. We affirm the judgment of the trial
court.
The parties entered into the agreement on August 7,
2006, four days prior to their wedding ceremony. In the
agreement, each party waived any claim he or she may
have had to the property of the other, and each party
waived any ability to receive alimony or other support,
in the event of the dissolution of their marriage. The
plaintiff commenced this marital dissolution action in
October, 2010. By way of a pendente lite motion, the
plaintiff sought enforcement of the agreement. The
defendant filed an objection to that motion, arguing
that the agreement was unconscionable and thus unen-
forceable. Following an evidentiary hearing, the court,
Fuger, J., issued a memorandum of decision on Novem-
ber 29, 2011. The court found the following facts. In
2006, the defendant was employed, earning approxi-
mately $30,000 per year. She owned a home in Plainville,
which she sold after the marriage. She ‘‘cleared’’
approximately $44,000 from the sale of the house. At
that time, the plaintiff had an income of approximately
$250,000 per year and had stock holdings valued at
approximately $650,000. Following the marriage, the
defendant ceased working and moved into a house
owned solely by the plaintiff. At the time of the hearing,
the plaintiff’s net worth was approximately $4.5 million
and the defendant’s net worth was approximately
$26,000. Both parties were in reasonably good health,
consistent with their ages, and capable of performing
substantial gainful employment. The defendant was the
first to mention that a prenuptial agreement would be
acceptable to her. At the time of the execution of the
agreement, both parties were represented by attorneys,
who had ample opportunity to review the agreement.
In its November 29, 2011, memorandum of decision,
the court disagreed with the defendant’s contention
that the agreement was unconscionable and thus unen-
forceable under General Statutes § 46b-36g (a) (2). The
court examined the agreement to determine unconscio-
nability both at the time of its execution in 2006, and at
the time enforcement was sought, in 2011. It determined
that at neither point was the agreement or its enforce-
ment unconscionable. The court noted that the plaintiff
was wealthy in both 2006 and 2011, and, although the
defendant had much more modest means than the plain-
tiff had at both times, the court found that the disparity
in wealth between the parties was substantially the
same in 2011 as it had been in 2006. The court found
that the agreement was not forced upon the defendant.
She had ‘‘ample opportunity to review and understand
the agreement and indeed, made productive use of that
opportunity.’’ The court found that at the time of execu-
tion of the agreement, the defendant was represented
by legal counsel, and there had been full disclosure by
the parties as to their respective financial situations.
The court noted, with regard to the situation in 2011,
that although ‘‘there certainly are some arguments to
be made that the plaintiff is lacking in chivalry and
respect for the woman that he claimed to love in 2006
when he seeks to remove her from his life with no
economic support considering the five years they spent
together, there is, given the prenuptial agreement, no
requirement that he do so. The defendant, although five
years older, is not unemployable, medically disabled,
nor lacking in skills that would permit her to be self-
sufficient. She will not become destitute and a ward of
the state if the prenuptial agreement is enforced against
her,1 although the financial quality of her life will
undoubtedly diminish.’’
The defendant filed a motion to reargue, claiming
that Oldani v. Oldani, 132 Conn. App. 609, 34 A.3d 407
(2011), which was released shortly after the trial court’s
November 29, 2011 decision, required a finding that the
agreement was unenforceable under § 46b-36g (a) (3)
because of the plaintiff’s omission of his Schedule E
income from his financial disclosure at the time the
agreement was executed. The court, Fuger, J., denied
the motion. In January, 2014, the court, Boland, J.,
issued a decision dissolving the parties’ marriage and
upholding the agreement.2 This appeal followed.
The defendant first claims that the court erred in
determining that, contrary to the provisions of § 46b-
36g (a) (2), the parties’ agreement was enforceable in
July, 2011, when the plaintiff sought to enforce its terms.
We disagree.
‘‘[A] court’s determination whether a prenuptial
agreement is unenforceable pursuant to § 46b-36g pre-
sents a mixed question of fact and law over which our
review is plenary. . . . In reviewing the court’s deci-
sion, we must therefore determine whether the court’s
conclusions are legally and logically correct and sup-
ported by the facts in the record.’’ (Citation omitted;
internal quotation marks omitted.) Id., 615.
‘‘[A]n antenuptial agreement is a type of contract
and must, therefore, comply with ordinary principles
of contract law. . . . [A]ntenuptial agreements are to
be construed according to the principles of construction
applicable to contracts generally. . . . [A]ntenuptial
agreements relating to the property of the parties, and
more specifically, to the rights of the parties to that
property upon the dissolution of the marriage, are gen-
erally enforceable . . . [if] the circumstances of the
parties at the time the marriage is dissolved are not so
beyond the contemplation of the parties at the time the
contract was entered into as to cause its enforcement
to work injustice. . . . [T]he party seeking to challenge
the enforceability of the antenuptial contract bears a
heavy burden. . . . This heavy burden comports with
the well settled general principle that [c]ourts of law
must allow parties to make their own contracts. . . .
It is established well beyond the need for citation that
parties are free to contract for whatever terms on which
they may agree. . . . Whether provident or improvi-
dent, an agreement moved on calculated considerations
is entitled to the sanction of the law . . . .’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Schoenborn v. Schoenborn, 144 Conn. App.
846, 853–54, 74 A.3d 482 (2013).
Prenuptial agreements entered into on or after Octo-
ber 1, 1995, are governed by the Connecticut Premarital
Agreement Act, General Statutes § 46b-36a et seq.3 See
Friezo v. Friezo, 281 Conn. 166, 182, 914 A.2d 533 (2007).
Section 46b-36g (a) (2) provides in relevant part: ‘‘A
premarital agreement or amendment shall not be
enforceable if the party against whom enforcement is
sought proves that . . . [t]he agreement was uncon-
scionable when it was executed or when enforcement
is sought . . . .’’
‘‘Unconscionable is a word that defies lawyer-like
definition. . . . The classic definition of an unconscio-
nable contract is one which no man in his senses, not
under delusion, would make, on the one hand, and
which no fair and honest man would accept, on the
other. . . . The doctrine of unconscionability, as a
defense to contract enforcement, generally requires a
showing . . . of an absence of meaningful choice on
the part of one of the parties together with contract
terms which are unreasonably favorable to the other
party . . . . The purpose of the doctrine of unconscio-
nability is to prevent oppression and unfair surprise.’’
(Citations omitted; internal quotation marks omitted.)
McKenna v. Delente, 123 Conn. App. 146, 158, 2 A.3d
38 (2010). ‘‘[T]he question of unconscionability is a mat-
ter of law to be decided by the court based on all the
facts and circumstances of the case.’’ (Internal quota-
tion marks omitted.) Crews v. Crews, 295 Conn. 153,
163, 989 A.2d 1060 (2010).
The defendant argues that the enforcement of the
agreement in 2011 was unconscionable. The defendant
was to receive no alimony, despite the discrepancy in
the parties’ income and net worth. The defendant had
sold her house after the parties were married, and she
lived in the plaintiff’s house. The defendant had no
funds with which to secure a residence. Section 13.1
of the agreement provided that the parties were to
reside at the plaintiff’s residence following their mar-
riage, and, if the marriage were to end, the defendant
was to vacate the residence within sixty days.
The parties, however, had mutually agreed to the
terms of the agreement. At the time the agreement was
entered into, there was a marked discrepancy in the
parties’ income and net worth;4 the discrepancy existed
to a greater extent at the time of enforcement. The
court found that at the time of execution, the defendant
earned approximately $30,000 per year, and at the time
of enforcement, she had a net worth of approximately
$26,000. The court further found that at the time the
agreement was executed, the plaintiff had an income
of approximately $250,000 per year and stock holdings
of approximately $650,000, and at the time of enforce-
ment, he had a net worth of approximately $4.5 million.
The court found that the disparity in the parties’ finan-
cial situations was ‘‘substantially the same’’ at the time
of execution and at the time of enforcement.
In Winchester v. McCue, 91 Conn. App. 721, 725, 882
A.2d 143, cert. denied, 276 Conn. 922, 888 A.2d 91 (2005),
the plaintiff argued on appeal that the trial court erred
in enforcing the parties’ prenuptial agreement and that
‘‘enforcement of the agreement would be unconsciona-
ble because the defendant’s financial situation at the
time of dissolution was beyond the contemplation of
the parties when the agreement was executed.’’ This
court in Winchester analyzed the plaintiff’s claim under
the third prong of McHugh v. McHugh, 181 Conn. 482,
489, 436 A.2d 8 (1980), which provides that a prenuptial
agreement will not be enforced ‘‘where the circum-
stances of the parties at the time of the dissolution are
so far beyond the contemplation of the parties at the
time the agreement was made as to make enforcement
of the agreement work an injustice. . . . [W]here the
economic status of parties has changed dramatically
between the date of the agreement and the dissolution,
literal enforcement of the agreement may work injus-
tice. Absent such unusual circumstances, however,
[prenuptial] agreements freely and fairly entered into
will be honored and enforced by the courts as written.’’
(Internal quotation marks omitted.) Winchester v.
McCue, supra, 91 Conn. App. 729–30; see Friezo v.
Friezo, supra, 281 Conn. 186 n.23 (McHugh standards
codified in Connecticut Premarital Agreement Act).
This court concluded that the trial court properly
rejected the plaintiff’s claim that the agreement should
not be enforced because the parties could not have
contemplated that the defendant’s estate would
increase by approximately 430 percent over the course
of the marriage. Winchester v. McCue, supra, 730. This
court stated that the threshold for finding an extraordi-
nary change in economic status is high, and that ‘‘[t]he
court [in McHugh] made clear that the change must be
so far beyond the contemplation of the parties . . . as
to make enforcement of the agreement work an injus-
tice. . . . The . . . economic status must have
changed dramatically and that a finding that such
change has occurred would be an unusual [circum-
stance]. . . . We agree with the trial court that it must
have been contemplated by the parties that the defen-
dant would continue working in the corporate arena
and that, over the course of years, his income would
increase as well as his retirement benefits and invest-
ments. These circumstances do not constitute the type
of dramatic or unusual circumstances contemplated by
McHugh.’’ (Citations omitted; internal quotation marks
omitted.) Id., 730–31.
Similarly, the relative economic status of the parties
has not changed dramatically in the present case. The
court’s finding that the disparity in income between the
parties was substantially similar is supported by factual
findings that are not clearly erroneous. Although the
gross difference in affluence widened, the fact that the
plaintiff was far wealthier than the defendant did not
change. Accordingly, as in Winchester, the circum-
stances of this case are not of the type contemplated by
McHugh. Furthermore, ‘‘Unfairness or inequality alone
does not render a postnuptial5 agreement unconsciona-
ble; spouses may agree on an unequal distribution of
assets at dissolution. [T]he mere fact that hindsight may
indicate the provisions of the agreement were improvi-
dent does not render the agreement unconscionable.
. . . Instead, the question of whether enforcement of
an agreement would be unconscionable is analogous
to determining whether enforcement of an agreement
would work an injustice. . . . Marriage, by its very
nature, is subject to unforeseeable developments, and
no agreement can possibly anticipate all future events.
Unforeseen changes in the relationship, such as having
a child, loss of employment or moving to another state,
may render enforcement of the agreement unconsciona-
ble.’’ (Citations omitted; internal quotation marks omit-
ted.) Bedrick v. Bedrick, 300 Conn. 691, 705–706, 17
A.3d 17 (2011). The trial court made no findings of
unforeseen developments. Although the plaintiff had
increased his net worth during the marriage, so that
the gap widened, the fundamental nature or quality of
the difference in economic status had not changed. At
both times, the plaintiff had much more money than
the defendant; and as noted previously, the defendant
had expressly recognized in the agreement that a sub-
stantial difference in resources existed, and she never-
theless executed the agreement.
The defendant next argues that the court, Fuger, J.,
abused its discretion in denying her motion to reargue
and that the court, Boland, J., erred in incorporating
Judge Fuger’s November 29, 2011 ruling into its judg-
ment of dissolution6 because the plaintiff had not pro-
vided adequate financial disclosure at the time the
agreement was signed. The defendant argues that the
income discrepancy between the parties ‘‘is more unten-
able’’ because at the time of execution in 2006, the
plaintiff failed to disclose significant perennial Schedule
E income. The defendant contends that the plaintiff’s
tax returns demonstrate that in 2006 he had Schedule
E income of $394,048, which he did not include in his
financial disclosure at the time. The defendant argues
that reversal of the present case, therefore, is required
by Oldani v. Oldani, supra, 132 Conn. App. 614–25.
Section 46b-36g (a) (3) provides in relevant part that
‘‘[a] premarital agreement or amendment shall not be
enforceable if the party against whom enforcement is
sought proves that . . . [b]efore execution of the
agreement, such party was not provided a fair and rea-
sonable disclosure of the amount, character and value
of property, financial obligations and income of the
other party . . . .’’ The phrase ‘‘fair and reasonable
disclosure’’ as used in § 46b-36g (a) (3) ‘‘refers to the
nature, extent and accuracy of the information to be
disclosed, and not to extraneous factors such as the
timing of the disclosure.’’ Friezo v. Friezo, supra, 281
Conn. 183. ‘‘[F]inancial disclosures by parties to a pre-
nuptial agreement are not required to be exact or pre-
cise . . . rather . . . a fair and reasonable financial
disclosure requires each contracting party to provide
the other with a general approximation of their income,
assets and liabilities, and . . . a written schedule
appended to the agreement itself, although not abso-
lutely necessary, is the most effective method of satis-
fying the statutory obligation in most circumstances.’’
(Citations omitted; internal quotation marks omitted.)
Oldani v. Oldani, supra, 132 Conn. App. 619.
In Oldani, the defendant argued that the trial court
erred in determining that the parties’ prenuptial
agreement was enforceable because, before the execu-
tion of the agreement, the plaintiff had failed to provide
to her with a ‘‘fair and reasonable disclosure’’ of his
income in that his financial affidavit insufficiently dis-
closed his income pursuant to § 46b-36g (a) (3). Id.,
615–16. The plaintiff in that case appended a financial
disclosure to the prenuptial agreement, but the disclo-
sure did not ‘‘expressly identify the amount of net
income that he had received or was entitled to receive
as a result of his various real estate investments. The
schedule [did] not provide any formula or directions
for calculating the plaintiff’s share of the rental income.
The schedule [did] not contain a statement or figure
that represents the plaintiff’s income at the time. In
fact, the word ‘income’ [did] not appear on any of the
pages of the plaintiff’s financial disclosure.’’ Id., 621.
This court analyzed the meaning of the phrase ‘‘fair and
reasonable disclosure’’ within the statutory scheme and
concluded that ‘‘[§] 46b-36g (a) (3) nevertheless pro-
vides that a prenuptial agreement is unenforceable
unless, prior to execution of the agreement, each party
gives a fair and reasonable disclosure of the amount,
character and value of property, financial obligations
and income. . . . Our Supreme Court has determined
that, to be fair and reasonable, a party’s disclosure does
not need to be exact but must at least provide a general
approximation. Focusing on the information disclosed
by the plaintiff, our plenary review of the record reveals
that, although the plaintiff may have provided a suffi-
cient approximation of his property holdings and other
financial obligations, he failed to provide the defendant
with sufficient information regarding his income prior
to her signing the prenuptial agreement. Because the
plaintiff failed to meet this burden to inform, it was
not legally and logically correct for the court to have
determined that the prenuptial agreement was enforce-
able. Accordingly, we reverse that portion of the court’s
dissolution judgment.’’ (Emphasis omitted; internal
quotation marks omitted.) Id., 624.
Financial disclosures need not be ‘‘exact or precise,’’
but rather a ‘‘fair and reasonable’’ disclosure must pro-
vide a ‘‘general approximation’’ of income, assets, and
liabilities. Friezo v. Friezo, supra, 281 Conn. 189, 191.
What is ‘‘fair and reasonable’’ may depend on the cir-
cumstances presented. In Oldani, the plaintiff did not
list his income on his financial disclosure. Oldani v.
Oldani, supra, 132 Conn. App. 620. Moreover, the par-
ties had an issue regarding a minor child at the time of
enforcement, and the prenuptial agreement provided
for some alimony. Id., 611–12. Unlike the plaintiff in
Oldani, the plaintiff in the present case disclosed the
amount, character and value of property, financial obli-
gations and income, which allowed a fair view of the
plaintiff’s overall financial picture.7 There were no chil-
dren of the marriage, and the agreement provided for
no alimony. In short, at the time of the execution of the
agreement, the defendant knew, based on the financial
disclosure, that the plaintiff had significantly more
income than her and, based on the agreement, she knew
that she would not be entitled to a share of the plaintiff’s
resources in the event of a divorce. The plaintiff’s 2006
federal income tax return listed on the line ‘‘[r]ental
real estate, royalties, partnerships, S corporations,
trusts, etc. Attach Schedule E’’ the amount of $394,048.
At the July 21, 2011 hearing on the plaintiff’s motion
to enforce the agreement, the plaintiff’s uncontested
testimony was that his Schedule E income was derived
from South Willington Limited Partnership, a rental real
estate, and Cable Technology Incorporated, a small
company. On his financial affidavit, which was attached
to the agreement, the plaintiff listed under the heading
‘‘real estate,’’ South Willington Limited Partnership and
listed it as having a value of $500,000. He also listed on
the financial affidavit under the heading ‘‘other assets,’’
that he was a 50 percent owner of ‘‘Cable Technology,
Inc.,’’ and listed the value of his ownership interest
at $2 million. Although the plaintiff did not expressly
provide the defendant with his Schedule E income, he
did disclose the sources of his Schedule E income and
the value of those sources. The disclosure provided
the defendant with a sufficient approximation of the
amount, character and value of the plaintiff’s property,
financial obligations, and income.
In the circumstances of this case, the defendant was
willing to marry the plaintiff, who had substantially
greater financial means than she with the full under-
standing that, pursuant to their agreement, if the mar-
riage did not work out well, she would receive nothing
on the dissolution of their marriage. We have been pro-
vided with no legal justification for a finding of uncon-
scionability. Accordingly, the defendant’s claim of error
is without merit.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Cf. General Statutes § 46b-36g (b) (if enforcement of prenuptial
agreement would result in person’s becoming eligible for public assistance,
court may require party to provide support regardless of terms of agreement).
2
At the time of dissolution, the court stated that it was not making a
separate finding regarding the enforceability of the agreement and that the
‘‘decision to have the . . . agreement enforced today has largely to do with
the fact that that was litigated before Judge Fuger on an earlier occasion.’’
3
‘‘Prenuptial agreements entered into prior to October 1, 1995, however,
are governed by the common law, which [was] analyzed in McHugh v.
McHugh, [181 Conn. 482, 436 A.2d 8 (1980)].’’ Bedrick v. Bedrick, 300 Conn.
691, 700, 17 A.3d 17 (2011). The Connecticut Premarital Agreement Act ‘‘was
intended to clarify McHugh, not to supplant the legal principles espoused
therein. . . . [T]he [Connecticut Premarital Agreement] [A]ct endorses,
clarifies and codifies the McHugh standards . . . .’’ (Citations omitted; inter-
nal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 186 n.23, 914
A.2d 533 (2007).
4
Significantly, the agreement expressly recognized the inequality of finan-
cial resources between the parties. Section 1.8 of the agreement provided
in relevant part: ‘‘Each of [the parties] is cognizant and aware that there is
a substantial disparity in the assets and income of the respective parties.
Notwithstanding such disparity, however, it is the intention of each of the
parties that, upon their marriage, the consequences of this Agreement shall
be binding upon the parties . . . .’’
5
We see no functional difference, for the purpose of analyzing the issue
at hand, between postnuptial and prenuptial agreements.
6
We conclude that Judge Fuger did not err in ruling on November 29,
2011, that the agreement was enforceable and did not err in denying the
defendant’s motion to reargue. We, therefore, need not address separately
the propriety of Judge Boland’s incorporation of Judge Fuger’s November
29, 2011 decision into the judgment of dissolution.
7
Although more pixels in the picture may have been preferable, the disclo-
sure revealed assets that fairly obviously produced income, the defendant
was represented by counsel, and the defendant, by opting for no alimony,
showed no interest in fine-tuning the agreement. Pursuant to § 6.4 of the
agreement, each party had ‘‘been given the right to request additional docu-
ments from [the other] regarding [the other’s] financial status and to obtain
independent valuations or appraisals.’’