Hornung v. Hornung , 323 Conn. 144 ( 2016 )

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HORNUNG v. HORNUNG—FIRST DISSENT
ZARELLA, J., dissenting. I fear that the majority’s
opinion in the present case is the beginning of a grave
and perilous road for matrimonial law in Connecticut,
and, therefore, I respectfully dissent. By upholding the
trial court’s $7.5 million lump sum alimony award, the
majority eviscerates the parties’ enforceable1 premarital
agreement, defeats the purpose behind the Connecticut
Premarital Agreement Act (act), General Statutes § 46b-
36a et seq., and fails to keep pace with the development
of matrimonial law in our sister states. In light of the
majority’s opinion, an enterprising trial court struck by
sympathy for a recent divorcee who entered into a less
than favorable—but not unconscionable—premarital
agreement may now end-run the agreement, con-
sciously or subconsciously, by awarding greater ‘‘ali-
mony,’’ unless the agreement expressly provides for the
level of alimony. Today’s result defeats Connecticut’s
public policy of encouraging the private settlement of
family matters and removes the predictability the act
was intended to create. See, e.g., Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 7, 1995 Sess., p. 2492
(‘‘[one] purpose of the [proposed] [a]ct is to provide
certainty as to the enforceability of the provisions in
premarital agreements’’). Prospective spouses who
enter into premarital agreements that settle issues of
property division in the unfortunate event of a future
divorce but leave for the courts the award of alimony—
a seemingly prudent decision2—do so at their own risk.
No longer can such prospective spouses be sure that
the Connecticut courts will honor their intentions as
expressed in the agreement. Until the legislature
addresses the majority’s conclusions, attorneys are well
advised to include alimony waivers or provisions setting
alimony amounts and terms in premarital agreements.
I
LUMP SUM ALIMONY AWARD
In the present case, the majority upholds the trial
court’s financial order awarding the plaintiff, Marjorie
Hornung, lump sum alimony of $7.5 million. The defen-
dant, Robert Hornung, claims that, in light of the peri-
odic alimony award, the property settlement resulting
from the premarital agreement, and the trial court’s
express reliance on statutory criteria pertaining to prop-
erty division, the lump sum alimony award was an
improper property distribution in contravention of the
parties’ premarital agreement. More specifically, the
defendant claims that the parties intended that all prop-
erty matters be settled by the premarital agreement. He
argues that the lump sum alimony award subverted
such intention because it was, either in fact or function,
a disguised property distribution. To support his con-
tention that the alimony award is a property distribu-
tion, the defendant argues, among other things, that the
support award far exceeds what the plaintiff requires
for her support and maintenance.3 I agree with the
defendant that the lump sum alimony award is a func-
tional property distribution. I reach this conclusion in
light of the fact that the support award in the present
case far exceeds the plaintiff’s need for support and
maintenance, and requires the defendant to invade his
assets to satisfy the obligation. I additionally conclude
that the lump sum alimony award undermines the pre-
marital agreement because the agreement contem-
plated alimony, which is an award sufficient to allow
the recipient to continue in his or her current lifestyle.
In the present case, however, the trial court’s alimony
award exceeds an amount sufficient for such purpose
and the reasonable bounds of discretion. For these rea-
sons, I would reverse the judgment of the trial court and
remand the case for the entry of new financial orders.4
An understanding of the premarital agreement is
essential to the resolution of the defendant’s claim. On
July 14, 1997, the plaintiff and the defendant executed
a premarital agreement. The agreement defines and
identifies each party’s separate property. It also defines
marital property as ‘‘all property that is acquired by
either or both parties subsequent to the marriage
. . . .’’ In the event of dissolution of the marriage, the
agreement provides that each party shall retain his or
her separate property, the defendant will retain the
marital property, except for certain personal property,
and the plaintiff will receive from the defendant a prop-
erty settlement payment. A formula for determining the
amount of the property settlement payment is provided
in the agreement. The payment amount increases with
the length of the marriage and the number of children
of the marriage. It was the express intention of the
parties that the property distribution effectuated by the
agreement fully satisfy both party’s claims to property
under Connecticut’s equitable property distribution
statute, General Statutes § 46b-81. The agreement also
provides that ‘‘a court of competent jurisdiction shall
address the issues of alimony and/or child support, both
temporary and permanent . . . .’’5 In July, 2008, the
parties amended the agreement. At the time of the disso-
lution, the trial court found that, under the terms of
the amended agreement, the plaintiff was to receive
a property settlement payment of $4.75 million, $1.25
million under the terms of the original agreement and
an additional $3.5 million pursuant to the July, 2008
amendment for her separate interest in the marital
home.
In addressing alimony and child support, the trial
court ordered the defendant to pay the plaintiff periodic
unallocated alimony and child support, as well as lump
sum alimony. The court awarded $40,000 per month in
periodic unallocated alimony and child support, which
the parties do not challenge on appeal. That award is
time limited, ending upon the death of either party, the
plaintiff’s remarriage, or in March, 2029, at which time
the plaintiff will be sixty years old. In addition, the
periodic award provides the plaintiff with an income
safe harbor of $50,000.6 The court also awarded the
plaintiff $7.5 million in lump sum alimony, payable in
twenty semiannual installments of $375,000. The lump
sum award is nonmodifiable, survives the death of
either party, and does not terminate upon the remar-
riage of the plaintiff. During the ten years that the plain-
tiff will receive both periodic and lump sum alimony
payments, she will collect monthly support of $102,500.
The lump sum alimony payments will end in 2024, at
which time all four of the parties’ children will be well
past the age of majority.7 Thereafter, the plaintiff will
continue to receive the monthly periodic unallocated
alimony and child support until March, 2029, unless she
has remarried or she or the defendant has died.
The trial court’s $7.5 million award, despite being
characterized by the court as lump sum alimony, oper-
ates as a property distribution and subverts the premari-
tal agreement. The award functions as a property
distribution because it (1) exceeds the plaintiff’s sup-
port and maintenance needs, and (2) requires the defen-
dant to invade the assets he retained pursuant to the
premarital agreement in order to meet the claimed ali-
mony obligation.8
I will first address the excessiveness of the alimony,
beginning by setting forth the legal principles that gov-
ern this determination. Generally, trial courts enjoy
broad discretion when equitably distributing property
and entering alimony orders in a marital dissolution
case. E.g., Greco v. Greco, 275 Conn. 348, 354, 880 A.2d
872 (2005). Such broad discretion is necessary due to
the myriad circumstances surrounding marriage disso-
lution actions and the court’s objective to place each
spouse in an equitable postdissolution position. See,
e.g., Kiniry v. Kiniry, 299 Conn. 308, 316, 9 A.3d 708
(2010); Mickey v. Mickey, 292 Conn. 597, 615, 974 A.2d
641 (2009). It has often been said that the court’s equita-
ble power is ‘‘the keystone [of] the court’s ability to
fashion relief’’ when dissolving a marriage and that,
without it, and the court’s broad discretion, it might be
impossible to fairly resolve some dissolution disputes.
Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612
(1989). Nevertheless, divorce is a creature of statute,
and the court’s authority to provide relief in such cases
is derived therefrom. Id.; Rubin v. Rubin, 204 Conn.
224, 229, 527 A.2d 1184 (1987). General Statutes §§ 46b-
81 and 46b-82 provide the court with its primary tools
for rendering an equitable dissolution of marriage.
Mickey v. Mickey, supra, 615.
With respect to § 46b-81, the Superior Court is
empowered to ‘‘assign to either spouse all or any part
of the estate of the other spouse.’’ General Statutes
§ 46b-81 (a). The purpose of such property distribution
‘‘is to unscramble existing marital property in order to
give each spouse his or her equitable share at the time
of dissolution.’’ Smith v. Smith, 249 Conn. 265, 275,
752 A.2d 1023 (1999). In applying § 46b-82, the court is
permitted to order either spouse or both spouses to
pay alimony to the other spouse; see General Statutes
§ 46b-82 (a); see also Smith v. Smith, supra, 280 (con-
cluding that § 46b-82 permits trial courts to order both
spouses to pay alimony); and the purpose of such award
is to provide for the continuing support and mainte-
nance of the recipient spouse.9 See, e.g., Dombrowski
v. Noyes-Dombrowski, 273 Conn. 127, 132, 869 A.2d
164 (2005). Although each of these statutory provisions
serves a divergent purpose, they are nonetheless inter-
related and complementary. See Mickey v. Mickey,
supra, 292 Conn. 615. Indeed, § 46b-82 (a) provides that
alimony may be awarded ‘‘in addition to or in lieu of’’
a property division, and it directs the court, in determin-
ing whether alimony should be awarded, to consider
any distribution it made under § 46b-81. (Emphasis
added.) Moreover, the factors to be considered under
each statute largely overlap. In assigning property under
§ 46b-81 and determining whether alimony should be
awarded under § 46b-82, the court must consider, inter
alia, ‘‘the length of the marriage, the causes for the . . .
dissolution of the marriage . . . the age, health, sta-
tion, occupation, amount and sources of income, earn-
ing capacity, vocational skills, education, employability,
estate . . . and needs of each of the parties . . . .’’
General Statutes § 46b-81 (c); accord General Statutes
§ 46b-82 (a). Under the property division statute, the
court must also consider each party’s liabilities, contri-
butions to the ‘‘acquisition, preservation or appreciation
in value of their respective estates,’’ and future opportu-
nities to acquire capital assets and income; General
Statutes § 46b-81 (c); and, in rendering alimony orders,
the court must consider whether the alimony recipient
is the custodial parent of any minor children and the
desirability and feasibility of such parent securing
employment. General Statutes § 46b-82 (a).
Pursuant to §§ 46b-81 and 46b-82, trial courts may
balance property distributions and alimony awards to
achieve a fair and equitable result in dissolving a mar-
riage. See Sunbury v. Sunbury, supra, 210 Conn. 174–75
(concluding that reversing one element of financial
order and limiting remand to reconsideration of that
element ‘‘would impede the trial court’s ability to weigh
the statutory criteria for financial orders to achieve
an equitable result’’ because ‘‘issues involving financial
orders are entirely interwoven’’ and ‘‘rendering of a
judgment in a complicated dissolution case is a carefully
crafted mosaic, each element of which may be depen-
dent on the other’’ [internal quotation marks omitted]).
Nevertheless, these statutes are distinct and serve sepa-
rate purposes, namely, property division and spousal
support. See Mickey v. Mickey, supra, 292 Conn. 615–16
(‘‘Despite their close relationship . . . the purposes
and operation of §§ 46b-81 and 46b-82 are distinct
. . . . [T]he purpose of § 46b-81 is to unscramble the
spouses’ current property interests . . . [whereas] the
purpose of § 46b-82 is to recognize the obligation of
support that spouses assume toward each other by vir-
tue of the marriage.’’ [Citation omitted; internal quota-
tion marks omitted.]). The dividing line between the
two statutes becomes particularly important when the
divorcing parties have entered into a premarital agree-
ment that completely resolves the property distribution,
such as in the present case.
The existence of a premarital agreement in a dissolu-
tion action implicates additional statutory provisions,
namely, the Connecticut Premarital Agreement Act
(act), General Statutes § 46b-36a et seq. The act autho-
rizes premarital agreements and provides for the form
and permissible content of such agreements. See Gen-
eral Statutes §§ 46b-36c and 46b-36d. It also sets forth
the factors that courts are to consider in determining
whether premarital agreements are enforceable. See
General Statutes § 46b-36g. When divorcing spouses
invoke these statutory provisions to seek enforcement
of a premarital agreement in a dissolution proceeding,
these provisions come into tension with §§ 46b-81 and
46b-82. In such cases, therefore, we must harmonize
the dissolution court’s broad discretion, conferred by
§§ 46b-81 and 46b-82, with the parties’ right and inten-
tion to settle the property distribution and/or alimony
issues privately, as permitted by the act. Cf. Rainforest
Cafe, Inc. v. Dept. of Revenue Services, 293 Conn. 363,
377–78, 977 A.2d 650 (2009) (‘‘we must, if possible,
construe two statutes in a manner that gives effect to
both, eschewing an interpretation that would render
either ineffective’’ [internal quotation marks omitted]).
At the very least, it should be obvious that premarital
agreements have some impact on the operation of
§§ 46b-81 and 46b-82. If they did not, premarital agree-
ments and the act would be meaningless.
This case presents this court with its first opportunity
to clarify the impact that a premarital agreement has
on a trial court’s discretion to structure financial orders
pursuant to §§ 46b-81 and 46b-82. In the presence of a
premarital agreement that distributes the parties’ prop-
erty but leaves open the question of alimony, the trial
court’s broad discretion in fashioning financial orders,
by necessity, becomes limited. See, e.g., Walker v.
Walker, 765 N.W.2d 747, 753–54 (S.D. 2009); see also
Hannon v. Hannon, 740 So. 2d 1181, 1187 (Fla. App.
1999) (‘‘A primary purpose of [a premarital] agreement
is to modify or shrink the general discretion of the
dissolution . . . [court] in doing equity between the
parties. The agreement itself is intended to define the
mutual equities, and the [dissolution court] is not free
to ignore its provisions or to render them ineffective.’’
[Emphasis added.]). The trial court’s discretion in disso-
lution matters could be thought of as a sliding scale.
At one end of this scale, where the court has the greatest
discretion to craft financial orders, is the case in which
the parties have not executed a premarital agreement.
In such cases, the court may begin by unscrambling
the marital assets through consideration and weighing
of the factors enumerated in § 46b-81. Then, the court
might turn to alimony, assessing the alimony recipient’s
support needs, in accordance with the factors set forth
in § 46b-82. Of course, the amount and type of property
awarded to the recipient spouse may impact that
spouse’s ability to meet all, or some, of his or her sup-
port needs and thereby affect the appropriate alimony
amount. See Walker v. Walker, supra, 751 (‘‘[c]ourts
are to consider property division and spousal support
jointly because an award of more assets can eliminate
or reduce the need for spousal support and vice versa’’
[internal quotation marks omitted]). It is this sequence
of events—the property distribution, the alimony order,
and the assessment of the alimony recipient’s ability to
provide for his or her own needs in light of the property
distribution—that I am referring to when I speak of
balancing the property distribution and alimony award.
The trial court is balancing the orders in the sense that
the alimony recipient’s needs and ability to provide for
those needs may vary depending on the type and
amount of property that he or she is awarded through
the equitable distribution of property. See id.
Conversely, when the parties have entered into a
premarital agreement that divides the separate and mar-
ital property, but does not address or prohibit alimony,
the court’s discretion necessarily narrows.10 Under such
circumstances, the trial court no longer has any discre-
tion to divide the parties’ property under § 46b-81. Like-
wise, because the court cannot distribute the property,
it no longer has the flexibility to balance the property
and alimony awards, at least not in the same sense.
Instead, the court is working from a fixed property
settlement, one the parties have decided is acceptable,
and the court’s role is to determine, in light of that
property distribution, whether an alimony award
should be made and, if so, in what amount and under
what terms. The fixed property settlement also influ-
ences the alimony obligor’s ability to meet an alimony
obligation and the alimony recipient’s support and
maintenance needs.11 Thus, the trial court’s discretion
is limited to making an award that provides for the
support of the recipient spouse, and the court need
only consider how the property settlement impacts that
alimony recipient’s ability to provide for himself or her-
self and the alimony obligor’s ability to satisfy the ali-
mony obligation. Stated differently, the award should
reflect what the alimony recipient needs in order to
maintain, to the extent practicable, the lifestyle he or
she enjoyed during the marriage, in light of the property
distribution reached by the parties. The award should
not attempt to counterbalance the property distribution
reached by the parties in the name of doing equity.
My view of the interrelationship between § 46b-81,
§ 46b-82, and a premarital agreement is supported by
the legislative history of the act. See Public Acts 1995,
No. 95-170 (P.A. 95-170). The purpose of the act was
to ‘‘serve as a guideline and standard for planning for
people who are entering into a marriage . . . [and] to
provide certainty as to the enforceability of the provi-
sions in premarital agreements . . . .’’ Conn. Joint
Standing Committee Hearings, supra, p. 2492; see also
38 H.R. Proc., Pt. 9, 1995 Sess., p. 3210, remarks of
Representative Ellen Scalettar (‘‘This bill establishes
standards and guidelines for premarital agreements. It
includes what the agreements may have in them, what
they can include, and also under what conditions the
agreements will be unenforceable.’’). Thus, the act pro-
vides prospective spouses with the necessary tools to
ensure that, in the unfortunate event of a divorce, they,
themselves, may settle their financial affairs and that
the trial court will honor their expectations. Such an
objective is consistent with the noted public policy of
this state to encourage the private resolution of family
matters and to foster the ‘‘private settlement of the
financial affairs of estranged marital partners . . . .’’
(Internal quotation marks omitted.) Billington v. Bill-
ington, 220 Conn. 212, 221, 595 A.2d 1377 (1991). These
purposes and policies would be undermined, however,
if the trial court were allowed to order alimony that
unreasonably exceeds the support needs of the ali-
mony recipient.
With respect to the present case, for the first ten
years following the divorce, the plaintiff will receive
$102,500 in monthly support through periodic and lump
sum alimony. Thereafter, she will continue to receive
monthly periodic unallocated alimony and child support
until March, 2029, unless she has remarried or she or
the defendant has died. The trial court found, in relation
to the alimony award, that time limited alimony was
proper and that the purpose of both periodic and lump
sum alimony was to provide for the continued support
of the plaintiff. In addition, the trial court decided that,
‘‘under all the circumstances, an award of lump sum
alimony payable over time, in addition to the award of
periodic alimony, [was] appropriate to provide for [the]
continuing support of the [plaintiff] . . . given the
[plaintiff’s] health issues, her lack of recent employ-
ment, her primary child care responsibilities for four
children, which limits her ability to enter the workforce
on a full-time basis, and her limited opportunity to
acquire assets in the future.’’
In light of the more limited discretion trial courts
have to fashion alimony orders when the parties have
entered into a premarital agreement, reviewing courts
should carefully evaluate such awards. In this case, the
record reveals that the plaintiff’s monthly support need
is approximately $45,000.12 The monthly support that
the plaintiff receives pursuant to the trial court’s finan-
cial orders, however, far exceeds such need. Under
the current financial orders, the plaintiff will receive
$102,500 in monthly support over the next ten years.
That is approximately $57,500 per month, or $690,000
per year, more than she claims to need. Thus, during
that ten year period, she will collect $6.9 million in
alimony that is not attributable to her need for support
and maintenance.13
In light of these facts, it is difficult to understand
how the financial support orders in the present case
comport with the limited support purpose of alimony.
The plaintiff contends that the award was not excessive
and results in only minimal surplus, if any.14 She argues
that the periodic award of $40,000 per month is insuffi-
cient to provide for her expenses, let alone the expenses
of the children, which the award, as unallocated ali-
mony and child support, was intended to cover.15 In
addition, she asserts that the shortage is even greater
when the tax consequences of the alimony award are
considered, and, therefore, the lump sum award was
necessary to provide for the shortfall between her and
her children’s needs, on the one hand, and the periodic
unallocated alimony and child support award, on the
other. Even if one were to accept these arguments,
the approximately $6.9 million in alimony that is not
attributable to the plaintiff’s monthly expenses, which
include considerable child care costs; see footnote 15
of this opinion; will certainly provide for the children
and the tax consequences of the periodic award, and
still result in more than minimally excessive alimony.
This is particularly true in light of the fact that the
defendant is responsible for a substantial amount of
the expenses related to the children. In addition to
the child support award, the defendant is required to
maintain health and dental insurance for the minor chil-
dren, provide for 60 percent of their unreimbursed med-
ical and dental expenses, including orthodontic, optical,
pharmaceutical and psychological expenses, and pay
for one half of the children’s extracurricular activities.
Moreover, one child has reached the age of eighteen,
another child, who is currently sixteen, is quickly
approaching the age of majority, and the other two
children are not particularly young—fourteen and
eleven, respectively.16
The majority acknowledges that, at the very least,
the monthly alimony award of $102,500 exceeds the
plaintiff’s stated monthly need of $65,444 per month.17
Nevertheless, the majority argues that this fact alone
does not transmute the lump sum alimony award into
a functional property distribution. Instead of ending its
inquiry there, however, the majority suggests, in light
of the marital standard of living, the factors set forth
in § 46b-82, the relative division of the marital estate,
and the lack of a specific allocation for child support,
that, perhaps, the lump sum alimony award is not exces-
sive or improper at all. I will address each unpersuasive
contention in turn.18
I agree that divorcing spouses are entitled, to the
extent practicable, to maintain the standard of living
they enjoyed during the marriage and that alimony may
be awarded for such purpose.19 See, e.g., Brody v.
Brody, 315 Conn. 300, 313, 105 A.3d 887 (2015) (‘‘[t]he
generally accepted purpose of . . . alimony is to
enable a spouse who is disadvantaged through divorce
to enjoy a standard of living commensurate with the
standard of living during marriage’’ [internal quotation
marks omitted]); Dan v. Dan, 315 Conn. 1, 11, 105 A.3d
118 (2014) (‘‘[o]ne reason for the abandoned spouse’s
entitlement to sufficient alimony to ensure the contin-
ued enjoyment of the standard of living that he or she
enjoyed during the marriage is that the spouse’s efforts
increased the other’s earning capacity at the expense
of [his or] her own’’ [internal quotation marks omitted]).
I further agree that the parties in the present case
enjoyed a high standard of living. I cannot agree, how-
ever, that the alimony award is necessary for the plain-
tiff to maintain such a standard.
The trial court made no finding regarding the marital
standard of living or the monthly marital expenses. Nev-
ertheless, pursuant to Practice Book § 25-30 (a), both
the plaintiff and the defendant submitted financial affi-
davits to the trial court, which cataloged their current
incomes, expenses, assets, and liabilities around the
time of the dissolution. Our cases have made clear that
courts are entitled to rely on the truth and accuracy of
such affidavits. See, e.g., Billington v. Billington, supra,
220 Conn. 219. If the trial court is entitled to rely on
such affidavits, I see no reason why this court cannot
also rely on such affidavits, particularly when the trial
court has not discredited such affidavits and appears
to have relied on them itself. The plaintiff’s affidavit
reveals monthly expenses of approximately $45,000,
and a cursory review of her affidavit leaves the reviewer
with but one reasonable conclusion, namely, that
$45,000 per month is the cost of maintaining her current
lifestyle, not, as the majority seems to suggest, merely
the cost of her basic living expenses. A sampling of the
plaintiff’s monthly expenses is illustrative: more than
$2000 for clothing, approximately $1300 for ‘‘personal
care,’’ including costs for hairdressing, manicures, pedi-
cures, massages, and fitness classes, and more than
$3800 for entertainment, travel, and vacations. The
defendant’s affidavit discloses monthly expenses of
$97,645. Contained in that amount is a monthly expense
for alimony and child support in the amount of $46,000.
When the alimony and support expense is subtracted,
the defendant is left with $51,645 in his own living
expenses. Given the similarity in the monthly expenses
disclosed by the plaintiff and the defendant, it appears
from the record that, in order to sustain their current
lifestyle, the parties each need between $45,000 and
$52,000 per month. Such a conclusion is further sup-
ported by the parties’ stipulation for unallocated ali-
mony and child support, pendente lite, of $46,000 per
month. Of course, the trial court made no finding in
this regard, and it is not the province of this court to do
so. I highlight these facts simply to make the following
point: no trial court could reasonably conclude that an
alimony award of $102,500 per month, an amount that
is nearly 230 percent of the plaintiff’s monthly expenses,
is proper based on the facts of the present case. More-
over, the record reveals no evidence that would support
a finding that the plaintiff’s monthly expenses—and,
therefore, the cost of maintaining her current lifestyle—
are anywhere near $102,500.
Next, the majority notes, and correctly so, that the
marital standard of living, or station, and expenses, or
needs, of the parties are but two of the statutory factors
that the trial court is to consider when entering alimony
orders. Consideration of all the factors, the majority
states, ‘‘militates against characterizing the lump sum
alimony award as a property distribution.’’ Text accom-
panying footnote 25 of the majority opinion. I presume
this means that the majority has concluded, in light
of the statutory factors set forth in § 46b-82, that the
alimony award is not excessive or improper. See foot-
note 18 of this opinion. I disagree.
First, the majority mistakenly assumes that the § 46b-
82 factors go exclusively to the alimony award amount,
and, therefore, because that statute includes factors in
addition to ‘‘station’’ and ‘‘needs,’’ an alimony award
may properly exceed the recipient’s support and main-
tenance needs. Section 46b-82 does direct the trial court
to consider factors other than station and need, such
as ‘‘the length of the marriage, the causes for the . . .
dissolution of the marriage . . . the age, health . . .
occupation, amount and sources of income, earning
capacity, vocational skills, education, employability,
[and] estate . . . of each of the parties . . . .’’ General
Statutes § 46b-82 (a). These factors are not only relevant
for determining the amount of an alimony award, but
they must also be considered ‘‘[i]n determining whether
alimony shall be awarded, and the duration . . . of
the award . . . .’’ (Emphasis added.) General Statutes
§ 46b-82. To be sure, not all factors go to the cost of
maintaining the recipient’s lifestyle. Nonetheless, they
do relate to the recipient’s support and maintenance
needs. More specifically, the factors help the trial court
determine, in light of the recipient’s assets and income,
the amount and duration of alimony necessary for the
recipient to maintain the lifestyle that he or she enjoyed
at the time of dissolution. For example, the court is
to consider the age, health, occupation, amount and
sources of income, earning capacity, vocational skills,
education, and employability of the parties. These fac-
tors, as they relate to the recipient spouse, inform the
court of the recipient’s current income or potential
future income and, therefore, his or her ability or inabil-
ity, as the case may be, to provide for his or her own
support needs, at least in part. For example, if the recipi-
ent did not work for the greater portion of the marriage,
like the plaintiff in the present case, such recipient’s age,
health, vocational skills, education, and employability
may lead the trial court to conclude that he or she,
despite having been unemployed during the marriage,
can, in time, find employment, potentially reducing the
amount, or shortening the duration, of the alimony
needed.20
Second, and relatedly, it is an axiom of matrimonial
law that the purpose of alimony is to provide the recipi-
ent with support and maintenance. See, e.g., Dan v.
Dan, supra, 315 Conn. 10 (‘‘[h]istorically, alimony was
based [on] the continuing duty of a divorced husband
to support an abandoned wife and should be sufficient
to provide her with the kind of living [that] she might
have enjoyed but for the breach of the marriage contract
by the [husband]’’ [internal quotation marks omitted]);
Simms v. Simms, 283 Conn. 494, 503, 927 A.2d 894
(2007) (‘‘[t]he traditional purpose of alimony is to meet
one’s continuing duty to support’’ [internal quotation
marks omitted]); Gay v. Gay, 266 Conn. 641, 647, 835
A.2d 1 (2003) (‘‘[t]he purpose of both periodic and lump
sum alimony is to provide continuing support’’ [internal
quotation marks omitted]). Thus, the § 46b-82 factors
are intended to help the trial court determine, first,
whether alimony is necessary for the recipient’s support
and maintenance, and, second, if alimony is necessary,
the amount and duration necessary to provide for the
recipient’s support and maintenance. The factors do
not, however, transform alimony into something it is
not. Stated differently, the factors are not to be utilized
to justify an award that exceeds the purpose of alimony,
namely, support and maintenance.
The alimony award is also justified, the majority sug-
gests, due to the disparity in the premarital agreement’s
distribution of the marital assets. The majority empha-
sizes that the defendant received more than $25 million
in assets as a result of the divorce, compared to the
approximately $4.5 to $5 million in assets that the plain-
tiff received.21 To support its suggestion that the ali-
mony award is proper in light of the premarital agree-
ment’s comparative property distribution, the majority
cites § 46b-82, particularly, the factor directing the trial
court to consider the estate of each party. Section 46b-
82 provides no support for this approach. Indeed, the
court must consider the estate of both spouses. Consid-
eration of the estate of the alimony obligor is necessary
to determine his or her ability to pay alimony, and,
likewise, consideration of the estate of the alimony
recipient is necessary to determine his or her need for
alimony. Considering the estates of the parties in a
relative fashion, as the majority does in the present
case, however, is an entirely different application of
that factor. The majority’s suggestion that a large lump
sum alimony award, one not necessary to provide for
the recipient’s support and maintenance, might be justi-
fied due to the comparative share of the assets received
by each spouse in accordance with a premarital
agreement is entirely antithetical to the concept of such
agreements. In fact, approving a $7.5 million lump sum
alimony award because the parties’ premarital agree-
ment awarded the obligor $25 million in assets and the
recipient between $4.5 and $5 million in assets is simply
an attempt by the court to rewrite the parties’ agree-
ment. Our case law makes clear that the courts are not
to second-guess the wisdom or question the fairness of
premarital agreements that are entered into voluntarily.
Cf. Crews v. Crews, 295 Conn. 153, 167, 989 A.2d 1060
(2010) (‘‘whether the trial court or this court thinks
the [premarital] agreement was a good bargain for the
plaintiff does not enter into the analysis of [its enforce-
ability]’’).
In a final attempt to justify the lump sum alimony
award in the present case, the majority claims that the
trial court did not specify how much of the unallocated
alimony and child support award was intended for the
children’s support, rather than the plaintiff’s. Although
the trial court did not expressly state what the child
support award amount was, we are not without guid-
ance. Using the trial court’s findings in the present case
and the Child Support and Arrearage Guidelines (guide-
lines) in effect at the time of the dissolution, we can,
at the very least, determine the baseline for child sup-
port. To assist courts in calculating equitable and con-
sistent child support orders, the guidelines contain a
schedule of basic child support obligations based on
the number of children and the parents’ combined net
weekly income. See Regs., Conn. State Agencies § 46b-
215a-2b (f).22 In the present case, the parties have four
minor children and a combined net weekly income of
$12,097. For families with four minor children, however,
the schedule only provides basic child support obliga-
tions for families with a combined net weekly income
ranging between $370 and $4000. See id. ‘‘When the
parents’ combined net weekly income exceeds [$4000],
child support awards shall be determined on a case-
by-case basis, and the current support prescribed at the
[$4000] net weekly income level shall be the minimum
presumptive amount.’’ Id., § 46b-215a-2b (a) (2). In
accordance with the guidelines, therefore, the presump-
tive minimum child support obligation in the present
case is $765 per week.23 In Maturo v. Maturo, 296 Conn.
80, 995 A.2d 1 (2010), this court explained that, when
a trial court is making a case specific child support
determination for a family with a combined net weekly
income that exceeds the upper range of the schedule,
it must still follow the principle on which the guidelines
are based, namely, ‘‘that the child support obligation
as a percentage of the combined net weekly income
should decline as the income level rises.’’ Id., 95. Thus,
the rule to be gleaned from Maturo is that the minimum
child support order in high income cases should pre-
sumptively be no less than ‘‘the current support pre-
scribed at the [$4000] net weekly income level’’; Regs.,
Conn. State Agencies § 46b-215a-2b (a) (2); for a family
with the same number of minor children, and the pre-
sumptive maximum order should ‘‘not exceed the [max-
imum] percent [set forth in the schedule] when the
combined net weekly income of the family exceeds
$4000 . . . .’’ Dowling v. Szymczak, 309 Conn. 390,
401, 72 A.3d 1 (2013). With these principles in mind, I
conclude that the presumptive appropriate range for
the child support order in the present case is between
$765 and $2314 per week—19.13 percent of the com-
bined net weekly income. See id. (child support obliga-
tion for high income family should not exceed percent
of combined net weekly income used for family with
same number of minor children at highest combined
net weekly income set forth in schedule); Maturo v.
Maturo, supra, 96 (presumptively, support order for
family with combined net weekly income in excess of
income range covered by schedule should not exceed
same percentage of income provided for family with
same number of children and highest combined net
weekly income provided by schedule); see also Regs.,
Conn. State Agencies § 46b-215a-2b (f) (setting child
support obligation percentage for four minor children
and combined net weekly income of $4000 at 19.13
percent). Thus, the presumptive maximum monthly
child support, about $10,000, accounts for only a small
amount of the excessive alimony. Even if it is assumed
that the trial court found it necessary to deviate upward,
there is no evidence in the record that would support
the magnitude of the excessiveness of the award in the
present case. Moreover, and as I explained in response
to the plaintiff’s argument on this point, the plaintiff’s
financial affidavit contains significant costs related to
child care. Thus, simply stacking the presumptive child
support amount on top of the expenses that the plaintiff
listed in her financial affidavit would likely result in
the double counting of some costs. Furthermore, the
defendant is obligated to pay, in addition to the alimony
and child support award, a substantial portion of the
child care expenses, including health and dental insur-
ance, 60 percent of unreimbursed medical and dental
expenses, and one half of the expenses from the chil-
dren’s extracurricular activities.
Because the monthly alimony obligation of $102,500
unreasonably exceeds the plaintiff’s monthly support
need of $45,000, and despite the arguments advanced
by the plaintiff and the majority, I conclude that the
lump sum alimony award, in conjunction with the peri-
odic alimony award, is excessive. I concede, however,
that this fact alone does not make the lump sum alimony
award a functional property distribution. Indeed, for the
alimony award to function as a property distribution, it
must result in the transfer to the plaintiff of property
that the defendant was awarded pursuant to the premar-
ital agreement. The lump sum alimony award in the
present case results in such a transfer.24
The defendant has a monthly income of approxi-
mately $80,833. The alimony obligation, however, is
$102,500 per month. Thus, the defendant’s monthly
income is insufficient to satisfy the monthly alimony
obligation, and, therefore, the defendant will necessar-
ily need to invade his assets—assets that he was
awarded under the premarital agreement—to cover the
balance of the obligation, nearly $22,000 per month. Of
course, the need to invade assets, in and of itself, does
not make the lump sum alimony award a functional
property distribution. See Simms v. Simms, supra, 283
Conn. 505 (trial court is not without authority to order
alimony simply because such order would require obli-
gor to invade his or her assets); see also Brody v. Brody,
136 Conn. App. 773, 790, 51 A.3d 1121 (2012) (‘‘The
defendant may elect to pay the [lump sum alimony]
award out of his separate assets, but how he chooses
to satisfy his obligation under the court’s order is his
decision. The court did not order him to pay the award
out of his separate assets. That he plans to do so does
not invalidate an otherwise valid award of alimony.’’),
rev’d in part on other grounds, 315 Conn. 300, 105 A.3d
887 (2015). When an alimony award is necessary to
provide for the support and maintenance of the recipi-
ent, the fact that the obligor needs to invade his or her
assets to satisfy the obligation does not change the
award’s function, which is to provide support and main-
tenance. On the other hand, when an alimony award is
excessive and requires the obligor to invade his or her
assets to satisfy the obligation to pay the award, the
function of the award changes. In this circumstance,
the obligor is forced to transfer assets to the recipient,
assets that the obligor was awarded in the dissolution
proceeding and that are unnecessary for the support
and maintenance of the recipient.
In the present case, the alimony order results in the
plaintiff receiving at least $6.9 million in excess of her
support and maintenance needs. Thus, the award goes
beyond the purpose of alimony. Moreover, the award
is nearly 127 percent of the defendant’s monthly
income, and, therefore, he will need to invade his assets
to satisfy the court order. Thus, under the trial court’s
current financial support orders, the defendant must
transfer to the plaintiff assets that he was awarded
under the premarital agreement, assets that are unnec-
essary for the plaintiff’s support and maintenance. The
only logical conclusion is that the trial court has effectu-
ated, whether intentional or not, a transfer of the defen-
dant’s assets to the plaintiff, contrary to the intention
of the parties as represented in their premarital agree-
ment.25 I thus conclude that the lump sum alimony
award in the present case is a functional property distri-
bution.26
The analysis employed in this case is consistent with
the development of matrimonial law in other jurisdic-
tions. Courts in Florida and South Dakota agree that
premarital agreements limit the discretion of dissolu-
tion courts. See Hannon v. Hannon, supra, 740 So. 2d
1187 (‘‘A primary purpose of [a premarital] agreement
is to modify or shrink the general discretion of the
dissolution . . . [court] in doing equity between the
parties. The agreement itself is intended to define the
mutual equities, and the [dissolution court] is not free
to ignore its provisions or to render them ineffective.
. . . Dissolution . . . courts should attempt to give
effect to [premarital] agreements that are . . . prop-
erly made and fully enforceable.’’); Walker v. Walker,
supra, 765 N.W.2d 754 (same). In Hannon, the husband,
George Hannon, Sr., and the wife, Lorain A. Hannon,
entered into a premarital agreement, pursuant to which
each waived any interest in the separate property of
the other, including any rights they might have as a
surviving spouse. Hannon v. Hannon, supra, 1182–83.
The agreement also provided that the husband prom-
ised ‘‘to support [the wife] during their marriage in a
manner [that] is consistent with the standard of living
of [the husband] from time to time during their mar-
riage,’’ but it did not address alimony. (Internal quota-
tion marks omitted.) Id., 1183. The parties divorced,
and the husband challenged the trial court’s lump sum
alimony award of $92,736. Id. He argued that the award
was, in effect, a property distribution because his sepa-
rate property was the only source from which he could
pay the lump sum alimony award. See id. The Florida
District Court of Appeal overturned the lump sum ali-
mony award. See id., 1188. The court recognized that
the wife could receive lump sum alimony despite having
waived any rights in the husband’s separate property.
See id. Nevertheless, the court stated that ‘‘the [premari-
tal] agreement cannot be treated as though it has no
limiting effect on the power of the trial [court] to award
lump sum alimony. Any such award must be carefully
restricted in its amount so that it does not appear to
contradict the terms of the [premarital agreement].’’ Id.
The court concluded that the agreement demonstrated
the parties’ intent to waive any interest in the property
of the other, both during their lifetimes and after death,
and the husband’s intent to support the wife during his
lifetime only. Thus, the court further concluded that
the lump sum alimony award was improper in light of
the agreement because it was based on the wife’s, rather
than the husband’s, life expectancy. Id.
In Walker, the wife, Debra Sue Walker, and the hus-
band, Edward Walker, Jr., entered into a similar agree-
ment in that each waived any right or interest in the
premarital property of the other. See Walker v. Walker,
supra, 765 N.W.2d 749. When the parties divorced, the
trial court denied the husband’s request for lump sum
alimony because the court found that he had not estab-
lished a need for the alimony or the wife’s ability to
pay alimony. Id., 753. The husband appealed, claiming
that the trial court failed to consider the wife’s premari-
tal assets in assessing her ability to satisfy a lump sum
alimony obligation. Id. The South Dakota Supreme
Court characterized the husband’s claim as an attempt
to effectively nullify the premarital agreement and con-
cluded that, in light of such agreement, the trial court
could not consider the wife’s premarital assets, valued
at nearly $630,000, as a source of funds for a lump sum
alimony award because the husband had waived any
right to such funds. See id., 754.
Even if the lump sum alimony award in the present
case was not a functional property distribution, I would
still find it to be improper under the circumstances. As
I already discussed, the award far exceeds the plaintiff’s
needs for support and maintenance. For that reason
alone, I believe it undermines the premarital agreement.
When the parties agreed to allow the court to set
alimony in the event of a divorce, they intended for the
court to award an amount that would provide for the
recipient spouse’s support; after all, that is what ali-
mony is. According to the plaintiff’s own financial affi-
davit, that amount is approximately $45,000 per month.
When the trial court entered an order requiring the
defendant to pay alimony in considerable excess of the
plaintiff’s needs, the order provided the plaintiff with
a windfall that was not contemplated by the parties’
premarital agreement. In doing so, the trial court
defeated that agreement.27 When the premarital agree-
ment in the present case was executed, as amended,
the plaintiff and the defendant intended that, if their
marriage were to be dissolved, each would keep his or
her own separate property, the defendant would keep
the marital property and, in exchange, the plaintiff
would receive a property settlement payment, which
increased with the length of the marriage and the num-
ber of children, and the court would set an alimony
award. Because the purpose of alimony is to provide
support and maintenance, at the time of dissolution,
the alimony award the parties had bargained for was
approximately $45,000 per month. Of course, the award
need not be that amount exactly and could be in lump
sum, rather than periodic, form. The trial court, how-
ever, awarded more than twice that amount. That is
not what the parties bargained for. Thus, the court’s
alimony award is improper and undermines the premar-
ital agreement because it exceeds the plaintiff’s support
and maintenance needs beyond all reasonable bounds.
In light of the foregoing facts, I conclude that the lump
sum alimony award in the present case is a functional
property distribution because it far exceeds the plain-
tiff’s need for support and requires the defendant to
invade assets to satisfy the obligation. The lump sum
alimony award is also improper because the parties’
bargain allowed for the court to set alimony—an award
that would provide for the support and maintenance of
the recipient. The award in this case goes far beyond
that purpose. Moreover, ‘‘[b]ecause the financial orders
in an action for dissolution of marriage are of necessity
interwoven and because the rendering of judgment in
an action for the dissolution of marriage is a carefully
crafted mosaic . . . each element of which may be
dependent on the other’’; (internal quotation marks
omitted) Wiegand v. Wiegand, 129 Conn. App. 526, 540,
21 A.3d 489 (2011); the defendant’s second claim regard-
ing attorney’s fees is affected by the trial court’s
improper lump sum alimony award. Accordingly, I need
not consider that claim. See id. Instead, I would reverse
the judgment of the trial court with respect to the finan-
cial orders and remand the case for a new hearing on
the financial matters.
In sum, I reiterate my concern with the practical
consequences that are likely to follow from the majori-
ty’s opinion in the present case. In light of that opinion,
trial courts can effectively undermine premarital agree-
ments entered into by prospective spouses by making
excessive alimony awards.28 As a result, I fear that par-
ties will be encouraged to include in their premarital
agreements provisions either establishing alimony, by
amount or formula, or precluding it altogether.
Although the public policy of this state generally favors
the private settlement of family matters; see, e.g., Bill-
ington v. Billington, supra, 220 Conn. 221; and alimony
is a permissible subject matter for premarital agree-
ments; General Statutes § 46b-36d (a) (4) (parties to
premarital agreement may contract with respect to
‘‘[t]he modification or elimination of spousal support’’);
in my view, alimony is more appropriately settled at
the time of dissolution, when the obligor’s ability to
pay and the recipient’s support needs are both known,
rather than at some time before the marriage, when
these relevant considerations are uncertain.
II
ENFORCEABILITY OF PREMARITAL AGREEMENT
The plaintiff filed a cross appeal challenging the
enforceability of the premarital agreement. Her appeal,
however, was contingent on the defendant prevailing
on his claims or this court otherwise remanding the
case for the entry of new financial orders. Because
I would reverse the trial court’s financial orders and
remand the case for a new hearing on the financial
matters, I reach the plaintiff’s cross appeal. The plaintiff
claims that the trial court incorrectly concluded that
the premarital agreement entered into by the parties in
1997, and amended in 2008, was enforceable. In essence,
she argues that the agreement is unenforceable because
(1) the defendant did not make a fair and reasonable
disclosure of his income when the agreement was
amended in 2008, (2) the defendant did not make a
fair and reasonable disclosure of the value of certain
software in which he had a proprietary interest when
the parties married, and (3) the agreement was uncon-
scionable when entered into in 1997, when amended in
2008, and when the defendant sought enforcement of
the agreement in 2014. I agree that the defendant did
not make a fair and reasonable disclosure of his income
in 2008, when he and the plaintiff amended the premari-
tal agreement, and, therefore, I need not address the
plaintiff’s other arguments. In light of the defendant’s
unfair and unreasonable disclosure of his income, I
conclude that it was improper for the trial court to
enforce the amended agreement.
The following facts are relevant to this claim. The
plaintiff and the defendant executed a premarital
agreement on July 14, 1997, approximately three weeks
before they were married. As I previously noted, the
agreement provided that, in the event of dissolution of
the marriage, each party would retain their separate
property, the defendant would retain the marital prop-
erty, with the exception of certain personal property,
and the plaintiff would receive a property settlement
payment, which increased with the length of the mar-
riage and the number of children. Both parties made
financial disclosures in connection with the agreement,
including a disclosure by the defendant of his proprie-
tary interest in a certain software program. At that time,
the defendant valued that interest at between $285,000
and $570,000. Within three years of marrying, the defen-
dant sold the software and received approximately $37
million for his interest in it.
In July, 2008, the parties amended their premarital
agreement. The amendment ratified and confirmed the
terms of the original agreement. In addition, it granted
the plaintiff a separate interest in the marital home and
provided that, in the event of a legal separation or a
divorce, the plaintiff would receive $3.5 million for such
interest, along with any payment due pursuant to the
formula set forth in the original agreement. The parties
again made financial disclosures in connection with the
amendment. Among other things, the defendant listed
his taxable income for 2004, 2005, and 2006 in the
amounts of $1,249,989, $902,025, and $1,687,677, respec-
tively. He did not, however, disclose his 2007 income
or his income in 2008 as of the date of the amendment,
namely, July 10.
I will begin with the standard of review and governing
legal principles. A trial court’s determination of whether
a premarital agreement is unenforceable under § 46b-
36g is a mixed question of fact and law, and, therefore,
this court’s review of such determination is plenary.
E.g., Friezo v. Friezo, 281 Conn. 166, 180, 914 A.2d 533
(2007). Thus, I must decide whether the trial court’s
‘‘conclusions are legally and logically correct and find
support in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Id., 181.
Premarital agreements entered into on or after Octo-
ber 1, 1995, such as the agreement in the present case,
are governed by the Connecticut Premarital Agreement
Act (act), General Statutes § 46b-36a et seq.29 See P.A.
95-170, §§ 10 and 11 (act applies to premarital agree-
ments executed on or after October 1, 1995). Under the
act, a premarital agreement or amendment thereto is
unenforceable ‘‘if the party against whom enforcement
is sought proves that: (1) [s]uch party did not execute
the agreement voluntarily; or (2) [t]he agreement was
unconscionable when it was executed or when enforce-
ment is sought; or (3) [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; or (4) [s]uch party was not afforded a rea-
sonable opportunity to consult with independent coun-
sel.’’ General Statutes § 46b-36g (a).
The plaintiff contends, among other things, that the
defendant’s financial disclosure in connection with the
2008 amendment to the premarital agreement was not
fair and reasonable because he did not disclose his 2007
and 2008 income. In response, the defendant argues
that he provided the plaintiff with a three year income
history, including 2004, 2005, and 2006. He further con-
tends that he generally does not know his exact annual
income until he has filed his income tax returns and
that, as of July, 2008, he had not filed his 2007 income
tax return; therefore, he could not have disclosed his
2007 and 2008 income at the time the parties amended
their premarital agreement. Under these circumstances,
the defendant claims that his financial disclosure was
fair and reasonable.30
Friezo is our seminal, and only, case addressing what
constitutes a fair and reasonable disclosure under
§ 46b-36g (a) (3). In that case, we began by noting that
the question was a matter of statutory interpretation,
and, as such, we first looked to the plain meaning of
the statutory text. Friezo v. Friezo, supra, 281 Conn.
180, 182. Although ‘‘fair and reasonable’’ is not defined
in § 46b-36g (a) (3), we concluded that it ‘‘was intended
to be understood in the context of the phrase that
directly follows, namely, ‘the amount, character and
value of property, financial obligations and income of
the other party . . . .’ General Statutes § 46b-36g (a)
(3). Accordingly, ‘fair and reasonable’ disclosure refers
to the nature, extent and accuracy of the information
to be disclosed . . . .’’ Friezo v. Friezo, supra, 182–83.
Finding no further guidance in the text of the statute,
we turned to the legislative history. See id., 183. The
legislative history revealed that the act had been influ-
enced by three things: this court’s decision in McHugh v.
McHugh, 181 Conn. 482, 436 A.2d 8 (1980), the Uniform
Premarital Agreement Act, and a law review article
written by Professor Judith T. Younger, J. Younger,
‘‘Perspectives on Antenuptial Agreements,’’ 40 Rutgers
L. Rev. 1059 (1988). Friezo v. Friezo, supra, 281 Conn.
183–84. Our review of the legislative history also uncov-
ered that the original bill made it more difficult to chal-
lenge the enforceability of a premarital agreement on
the ground that the financial disclosure was not fair
and reasonable. Id., 185. Under the terms of that bill,
in addition to establishing that the disclosure was unfair
and unreasonable, the challenging party was required
to show that he or she had not waived such a disclosure
and did not have, or reasonably could not have had,
adequate knowledge of the other party’s property,
income, and financial obligations. Id. The removal of
the latter two requirements, we reasoned, not only made
it easier to establish that a financial disclosure was not
fair and reasonable, but also demonstrated that the
legislature intended the requirement to focus on the
information disclosed rather than on the party to whom
disclosure was made. Id.
Finally, we considered the case law of this and other
jurisdictions. We began with McHugh, noting that the
act was intended to clarify and not supplant it. Id.,
185–86 and n.23. McHugh was the first case in our
modern history to consider the enforceability of a pre-
marital agreement. McHugh v. McHugh, supra, 181
Conn. 485. In that case, we concluded that a premarital
agreement is enforceable if, among other things, each
party discloses to the other ‘‘the amount, character, and
value of individually owned property . . . .’’ Id., 486.
The duty is one of disclosure and not of inquiry, we
noted, for that is the only way in which a court can
ensure that the parties have intelligently waived their
statutory rights. See id., 486–87. Moreover, because pro-
spective spouses are in a confidential relationship, each
must exercise good faith, candor, and sincerity in mat-
ters bearing on the agreement. Id., 487. In Friezo, we
gleaned three important points from McHugh: ‘‘First,
the purpose of disclosure is to ensure that each party
has sufficient knowledge of the other party’s financial
circumstances to understand the nature of the legal
rights being waived. . . . Second, financial disclosure
in Connecticut must be understood as a burden to
inform borne solely by the disclosing party. . . . Third,
full financial disclosure is required in a [premarital]
agreement only if the party to whom disclosure is made
does not have independent knowledge of the other par-
ty’s financial circumstances.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) Friezo
v. Friezo, supra, 281 Conn. 186–87.
After reviewing cases from other jurisdictions, we
agreed with the position taken by a majority of other
states, which was consistent with McHugh and our
reading of the statute. See id., 188–91. ‘‘[A] fair and
reasonable financial disclosure requires each con-
tracting party to provide the other with a general
approximation of [his or her] income, assets and liabili-
ties . . . .’’ Id., 191.
After determining the meaning of ‘‘fair and reason-
able,’’ we turned to the facts in Friezo. See id., 191–93.
In Friezo, the trial court had found that the husband’s
financial disclosure was not fair and reasonable
because the wife was not provided sufficient time to
examine the disclosure and lacked sufficient knowledge
to understand the disclosure. See id., 179, 192. It did
not find, however, that the disclosure was inaccurate
or incomplete, nor did the wife make any such allega-
tions. See id., 192. Ultimately, this court concluded that
the husband’s financial disclosure in Friezo was fair
and reasonable because the standard is concerned with
the content of the disclosure rather than the timing
of the disclosure or the receiving party’s capacity to
understand the disclosure.31 See id., 183, 191–93. The
content of the husband’s disclosure, we concluded, was
adequate. See id., 191. When the husband and the wife
entered into the agreement in November, 1998, the hus-
band disclosed his 1997 gross income, excluding capital
gains, and he provided a list of assets and liabilities,
including individual values with respect to most
items. Id.
Although this court has not had the opportunity to
revisit this issue since Friezo, the Appellate Court has
twice addressed the question of fair and reasonable
disclosure under § 46b-36g (a) (3) since this court’s
decision in Friezo. See Beyor v. Beyor, 158 Conn. App.
752, 762–65, 121 A.3d 734, cert. denied, 319 Conn. 933,
125 A.3d 206 (2015); Oldani v. Oldani, 132 Conn. App.
609, 615–24, 34 A.3d 407 (2011), overruled in part on
other grounds sub silentio by Brody v. Brody, 315 Conn.
300, 105 A.3d 887 (2015). The Appellate Court first
applied Friezo in Oldani. In that case, the defendant,
the wife, appealed from the trial court’s decision enforc-
ing the premarital agreement that she had entered into
with the plaintiff, the husband. See Oldani v. Oldani,
supra, 610. The wife argued, among other things, that
the husband did not make a fair and reasonable financial
disclosure. Id., 614. Both parties executed a premarital
agreement in December, 2002; id., 612; and, prior to
signing the agreement, they exchanged written financial
disclosures. Id., 619. The husband’s disclosure was
dated May 1, 2002, and the trial court credited his testi-
mony that the May, 2002 information was reliable as
of December, 2002. Id., 619 n.7. The disclosure listed
the husband’s assets and liabilities and included certain
schedules. Id., 619. One schedule contained information
regarding the husband’s interest in certain commercial
and residential real estate, including, among other
things, his percentage of ownership, and the annual
gross rents, operating expenses, and net operating
income for each property, where applicable. See id.,
620. The disclosure did not specifically state the hus-
band’s income. Id. Nonetheless, the trial court found
that the disclosure was adequate because it provided
sufficient information from which to determine the hus-
band’s income and to ensure that the wife’s waiver of
her statutory rights was intelligent. Id.
The Appellate Court disagreed, however, and deter-
mined that the husband’s disclosure was not fair and
reasonable. Id., 616; see id., 624. That court reasoned
that the real estate schedule did not expressly identify
the net income that the husband received or was enti-
tled to receive, and it did not provide the wife with a
formula or other information directing her on how she
might determine his share of the rental income. Id., 621.
Moreover, the husband conceded at trial that not all
the necessary information was provided to accurately
calculate the income that he would receive from the
rental properties. Id. For example, he testified that there
is often a holdback of rental income, but the schedule
did not provide any information regarding holdbacks.
Id. Finally, the Appellate Court concluded that the trial
court had incorrectly concluded that the husband’s
additional sources of income, such as consulting fees,
distributions, and interest and dividend income, were
irrelevant to the validity of his disclosure and improp-
erly considered the wife’s motive for signing the premar-
ital agreement in assessing the fairness and reason-
ableness of the husband’s disclosure. See id., 622–23.
In light of these facts, the Appellate Court concluded
that, although the husband may have provided a fair
and reasonable disclosure of his assets, he failed to
make such a disclosure of his income. See id., 624.
The Appellate Court next considered this question in
Beyor v. Beyor, supra, 158 Conn. App. 752. The defen-
dant, the wife, appealed from the judgment of the trial
court, which enforced the premarital agreement that
she entered into with the plaintiff, the husband. Id., 754.
The parties entered into the agreement in August, 2006,
waiving any claims that they might have had in each
other’s property and any right to receive alimony or
support in the event of a divorce. Id. On appeal, the
wife argued that the premarital agreement was unen-
forceable because, among other things, the husband’s
financial disclosure was not adequate. Id., 762. Specifi-
cally, she contended that his disclosure omitted his
Internal Revenue Service ‘‘Schedule E income,’’32 which
was $394,048 in 2006, and that such an omission
required a finding that the disclosure was not fair and
reasonable under Oldani. Id. The Appellate Court dis-
agreed. See id., 765. The court distinguished Oldani by
noting that, in Oldani, the husband did not list any
income, the parties had a minor child, and the premari-
tal agreement provided for some alimony. Id., 764. The
court noted that that was unlike the facts in Beyor
because the husband in Beyor had disclosed the
amount, character, and value of property, financial obli-
gations, and income, excluding the Schedule E income,
the parties had no children, and the parties waived all
rights to alimony in the premarital agreement. Id. Thus,
the Appellate Court reasoned that the wife knew going
into the marriage that the husband had substantially
more financial worth than her and that she would not
be entitled to any of it if they divorced. Id., 764–65.
Moreover, the court noted that, although the husband
did not disclose his Schedule E income, he did disclose
the sources of such income, his interest in those
sources, and the value of those sources. See id., 765. I
am convinced that Beyor was incorrectly decided, and,
therefore, I will not apply its reasoning to the pre-
sent case.33
With this background in mind, I turn to the present
case. I begin by noting that what is a fair and reasonable
financial disclosure under § 46b-36g (a) (3) depends on
the facts and circumstances of the case. It is undisputed
in the present case that the defendant did not disclose
his 2007 and 2008 income when he and the plaintiff
entered into the July, 2008 amendment to the premarital
agreement. In light of this, I conclude that the defen-
dant, like the husband in Oldani, failed to make a fair
and reasonable disclosure of his income in 2008. In
Oldani, the Appellate Court held that the disclosure in
question was not fair and reasonable because, although
the husband disclosed his interests in certain real estate
and the net operating income generated by such real
estate—which arguably could provide a general picture
of his income—he did not expressly disclose his
income, did not provide information on how to calculate
his income, and did not disclose all the information
necessary to accurately estimate his income. See
Oldani v. Oldani, supra, 132 Conn. App. 619–21. In the
present case, not only did the defendant fail to disclose
his 2007 and 2008 income, but he did not even provide
information from which an estimate of his income for
those years could be derived. The defendant might
argue that an estimated income for 2007 and 2008 could
be derived by averaging the historical income data. This
argument is unavailing, however, given the fluctuating
nature of his income, which varied by nearly 50 percent
over the three years disclosed.
The defendant argues that he disclosed three years
of historical income and that such a disclosure was
sufficient to provide the plaintiff with a ‘‘general approx-
imation’’ of his income. (Emphasis omitted; internal
quotation marks omitted.) A disclosure of historical
income information, however, does not provide a gen-
eral approximation of the defendant’s current income.34
I conclude that a fair and reasonable disclosure requires
the disclosing party to divulge his or her current income.
This is consistent with the purpose of the disclosure
requirement. As I noted previously, the purpose of the
disclosure requirement ‘‘is to ensure that each party
has sufficient knowledge of the other party’s financial
circumstances to understand the nature of the legal
rights being waived. . . . In other words, a party can-
not know what is being waived unless he or she is privy
to all of the relevant facts, in particular, the financial
status of the other party.’’ (Citation omitted; footnote
omitted.) Friezo v. Friezo, supra, 281 Conn. 186–87.
Providing historical, rather than current, income infor-
mation does not provide the party receiving such disclo-
sure with accurate knowledge of the discloser’s income
at the time the agreement is being executed and, there-
fore, prevents the receiving party from intelligently
waiving his or her statutory rights. Receiving current
income information is particularly important in cases,
like the present case, in which the receiving party is
waiving equitable distribution of property and receiving
a right to alimony. The party waiving equitable distribu-
tion in exchange for alimony undoubtedly relies on the
income disclosure of the opposing party in assessing
whether he or she agrees with the terms of the premari-
tal agreement. Moreover, under the facts of the present
case, the defendant’s disclosure of his 2007 and 2008
income was important given the fluctuating nature of
his income. See footnote 34 of this opinion. The defen-
dant’s disclosure in connection with the 2008 amend-
ment to the premarital agreement and his testimony at
trial revealed that he had variable income. His income
for the years 2004, 2005, 2006, 2007, and 2008 was
$1,249,989, $902,025, $1,687,677, $1,253,766, and
$575,266, respectively. Knowledge of such variable
income would be necessary for an intelligent waiver of
statutory rights, particularly when a party is to receive
alimony, and, therefore, disclosure of both historical
and current income is necessary for a fair and reason-
able disclosure when the discloser’s income fluctuates
like the defendant’s had in the present case.
The defendant also argues that he could not have
disclosed his 2007 and 2008 income when the parties
executed the 2008 amendment because he did not have
the tax information for those periods at that time and,
thus, was not aware of his precise income for those
tax years. This argument is unavailing. First, as the
defendant has acknowledged, an exact disclosure of
his income is not necessary. Indeed, all that is required
for a fair and reasonable financial disclosure is that the
defendant provide the plaintiff with ‘‘a general approxi-
mation of [his] income, assets and liabilities . . . .’’
Friezo v. Friezo, supra, 281 Conn. 191. Thus, he need
not wait until his income tax returns are filed in order
to make an exact disclosure. He can instead provide
an accurate and reasonable estimate of his income.
Moreover, there can be no doubt that, by July, 2008,
he had some general idea of the income he had received
in 2007 and the income he had received during the first
half of 2008. Second, at trial, the plaintiff claimed that
it was improper for the defendant to value the assets
in his financial disclosure as of December 31, 2007,
when he had available valuations for those assets that
were contemporaneous with the execution of the
amendment to the premarital agreement in July, 2008.
Although the trial court did not find the use of the six
month old valuations fatal, and I express no opinion
on that issue, it did note that ‘‘the evidence supports
a finding that the [defendant] actually had available
virtually all [of] the asset figures on a contemporaneous
basis, and, by inference, his income figures as well.’’
(Emphasis added.) Thus, it appears, despite the defen-
dant’s contention, that he would have been able to pro-
vide income estimates for 2007 and 2008 when the
parties amended their premarital agreement.
Finally, the defendant contends that, if he had pro-
vided a ‘‘snapshot’’ of his 2008 income at the time the
parties amended their premarital agreement, and had
that snapshot turned out to be substantially higher than
his actual 2008 income, the plaintiff would still be chal-
lenging the accuracy of his disclosure. Even if that were
true, it does not excuse him from making such a disclo-
sure. The defendant had a duty to disclose information
that would provide the plaintiff with a general approxi-
mation of his income. If, for whatever reason, the disclo-
sure subsequently appeared to the plaintiff to be incon-
sistent with the defendant’s actual 2008 income, and
she wanted to challenge the accuracy of such disclo-
sure, that is her prerogative. In such a case, she would
carry the burden of establishing that the disclosure was
inaccurate when it was made. See General Statutes
§ 46b-36g (a) (allocating burden of establishing unen-
forceability of premarital agreement to party against
whom its enforcement is sought).
In sum, the defendant did not make a fair and reason-
able financial disclosure when the parties executed the
2008 amendment to their 1997 premarital agreement,
and I therefore conclude, pursuant to § 46b-36g (a), that
their amended premarital agreement is unenforceable.35
Thus, I would reverse the judgment of the trial court
insofar as the trial court enforced that agreement.
For the foregoing reasons, I respectfully dissent.
1
The trial court in the present case determined that the parties’ premarital
agreement is enforceable. Because the challenge by the plaintiff, Marjorie
Hornung, to the trial court’s enforcement of the premarital agreement is
contingent on whether the defendant, Robert Hornung, prevails on appeal;
see footnote 2 of the majority opinion; I assume, for purposes of the defen-
dant’s challenge to the lump sum alimony award, that the parties’ premarital
agreement is enforceable.
2
One would think that this court would encourage prospective spouses
to leave issues of alimony open for the courts. When a couple begins their
marital journey, there is no way of knowing what life has in store. The
couple may live happily together until death, divorce after twenty years, or
their marriage may last mere months. Serious illness may befall one spouse
and fame and fortune the other. They may have no children or four children.
The possibilities are endless, and the needs of the potential alimony recipient
are unknowable. But, instead, the majority encourages the settlement of
alimony issues before any couple weds because leaving alimony awards to
the court, as the present case demonstrates, may result in a circumvention of
the property division that the parties reached in their premarital agreement.
3
The defendant also argues that the lump sum alimony award is a func-
tional property distribution because (1) the trial court relied, in part, on the
plaintiff’s ability to acquire assets in the future and her contributions during
the marriage to the acquisition, maintenance, and preservation of assets,
which are both criteria set forth in the property division statute, General
Statutes § 46b-81 (c), (2) the premarital agreement restricted the court’s
ability to consider additional equitable factors, and, thus, the plaintiff’s
contribution to the family assets and ability to acquire future assets were
not appropriate additional factors for the court to consider under Borkowski
v. Borkowski, 228 Conn. 729, 743–44, 638 A.2d 1060 (1994), (3) the court’s
comments that the defendant’s insistence on entering into a premarital
agreement contributed to the breakdown of the marriage and that the defen-
dant offered the minimum he could to the plaintiff demonstrate that the
court felt it would be equitable to provide additional funds to the plaintiff,
and (4) the court’s order that the lump sum alimony be nonmodifiable,
survive the death of either party or remarriage of the plaintiff, and be
nontaxable to the plaintiff and nondeductible to the defendant reveals its
true character, namely, that it is a property award. In light of my conclusion,
I need not address these additional arguments.
Additionally, the defendant claims that the trial court ‘‘expressly consid-
ered equitable factors such as the parties’ children, even though the premari-
tal agreement expressly contemplated children and provided for an
increased property award in that event.’’ I am not sure how consideration
of the parties’ children demonstrates that the alimony award is a functional
property distribution. Moreover, it is unclear why a court’s consideration
of the minor children in awarding support to a custodial parent would be
improper. It is true that the formula for dividing marital property in the
premarital agreement contemplated the children. That does not, however,
foreclose consideration of the same factor when support determinations
are made. Indeed, General Statutes § 46b-82 (a) requires that the court
consider, ‘‘in the case of a parent to whom the custody of minor children
has been awarded, the desirability and feasibility of such parent’s securing
employment.’’ In any event, the existence of children seems like an appro-
priate additional factor for the court to consider in determining the type,
amount, and duration of an alimony award, even when such factor is also
accounted for in a premarital agreement that governs the division of prop-
erty. See Borkowski v. Borkowski, supra, 228 Conn. 743–44 (when entering
financial orders in dissolution action, court, ‘‘in the exercise of its inherent
equitable powers . . . may also consider any other factors [that] may be
appropriate for a just and equitable resolution of the marital dispute’’ [inter-
nal quotation marks omitted]).
4
Because I would reverse the trial court’s financial orders, insofar as the
plaintiff was awarded $7.5 million in lump sum alimony, and remand the
case for a new hearing regarding the financial matters, I must also address
the plaintiff’s contingent appeal regarding the enforceability of the premarital
agreement. See footnote 2 of the majority opinion. I address that issue in
part II of this opinion.
5
The agreement contained additional terms that are not relevant to
this appeal.
6
In its periodic unallocated alimony and support order, the trial court
stated: ‘‘It is the . . . intention of [the] court that . . . the amount of ali-
mony shall be nonmodifiable by the [defendant] where the sole basis for
the modification is the annual gross earnings of the [plaintiff] of [$50,000]
or less.’’ In essence, this order creates a safe harbor for the first $50,000 of
the plaintiff’s annual income. Stated differently, the plaintiff’s income cannot
constitute a substantial change in circumstances, necessary to modify an
alimony award, until it exceeds $50,000 per year. See General Statutes § 46b-
86 (a) (‘‘any final order for the periodic payment of permanent alimony or
support . . . may, at any time thereafter, be continued, set aside, altered
or modified by the court upon a showing of a substantial change in the
circumstances of either party’’).
7
In March, 2014, when the trial court issued its memorandum of decision
in the present case, the parties’ four children were fifteen, thirteen, twelve,
and nine, respectively. Thus, by the time the defendant has paid the last
installment of the lump sum alimony, the children will be approximately
between twenty-five and nineteen years old.
8
The convergence of both factors makes this purported alimony award
a functional property distribution. If the award was merely excessive, but
did not require the defendant to invade assets to satisfy the obligation, it
would not result in the transfer of property and, therefore, would not be a
functional property distribution. That does not mean, however, that such
an excessive award does not otherwise undermine the premarital agreement,
as I subsequently explain in this opinion. Additionally, if the award required
the defendant to invade assets but was not excessive, it would not be a
functional property distribution because an award that does not exceed the
recipient’s support and maintenance needs comports with the purpose of
alimony and thus functions as alimony.
9
Alimony is intended to provide for the recipient’s basic needs and to
maintain the lifestyle that the recipient enjoyed throughout the marriage.
See, e.g., Brody v. Brody, 315 Conn. 300, 313, 105 A.3d 887 (2015); Dan v.
Dan, 315 Conn. 1, 10–11, 105 A.3d 118 (2014). Thus, my use of the words
‘‘expenses,’’ ‘‘needs,’’ and ‘‘support’’ throughout the remainder of this opinion
encompasses both need and maintenance, and those words are used inter-
changeably.
10
At the far end of the sliding scale, where the court’s discretion is the
narrowest, is the instance in which the parties have executed a premarital
agreement that divides all the property, separate and marital, and sets
alimony.
11
For example, when the parties have not executed a premarital
agreement, and the trial court possesses complete discretion to equitably
divide the marital estate and to award alimony, the property distribution
ordered by the court has the potential of impacting each spouse’s respective
needs and ability to pay alimony. To illustrate, assume that a marital estate
includes an asset that produces significant income. Awarding such an asset
to the alimony obligor impacts his or her ability to satisfy an alimony
obligation. If, instead, the asset is awarded to the alimony recipient, the
asset would provide an income stream from which the recipient could
provide for some, or perhaps all, of his or her support and maintenance
needs, thereby impacting the necessary amount of alimony. When the parties
have executed a premarital agreement, however, and have decided which
spouse will receive the income producing asset, not only have they effectu-
ated the property distribution, and consequently limited the trial court’s
discretion to divide the property, but they have also impacted the alimony
obligor’s ability to pay alimony and the alimony recipient’s needs.
12
The plaintiff submitted a financial affidavit to the trial court, outlining
her monthly income and expenses. In that affidavit, she claimed monthly
living expenses of $65,444, and, because the trial court did not make any
particular findings regarding such expenses, I will accept the plaintiff’s
financial affidavit as true. Nevertheless, some adjustments to the affidavit
are necessary. The plaintiff included what appear to be one time expenses,
such as $11,787 for furniture, home furnishings, and home improvements,
as well as $3750 for a Bat Mitzvah for one of the children. The affidavit also
includes $6559 in monthly expenses arising from property the parties owned
in Vermont, which was awarded to the defendant pursuant to the parties’
premarital agreement. Removing these items from the plaintiff’s monthly
expenditures results in expenses totaling $43,348. This figure is consistent
with the affidavit the plaintiff submitted in a posttrial proceeding, in which
she outlined monthly living expenses totaling $44,332. For ease of calcula-
tion, I rounded the plaintiff’s monthly support need to $45,000.
I note that, even with these adjustments, the plaintiff’s monthly expenses
are likely overstated. She claims $2712 in monthly medical expenses for
both her and the children, and $6846 for the children’s monthly expenses,
including various extracurricular activities (this figure excludes the Bat
Mitzvah expense previously discussed). The defendant, however, was
ordered to pay one half of the costs for the children’s camps, tutors, lessons,
and extracurricular activities, and to provide for the children’s health and
dental insurance and to pay 60 percent of the unreimbursed medical and
dental expenses. For a period of three years, the defendant also must pay
the premiums for the plaintiff’s continuing health insurance coverage, should
she elect to obtain such coverage.
13
Even if it is assumed that the plaintiff’s periodic alimony and expenses
remain unchanged, it appears, at first blush, that she will have a support
deficit of $5000 a month, or $60,000 a year, for the five years after the lump
sum alimony installments end in light of her estimated monthly support
need of $45,000 per month and the court’s award of $40,000 in monthly
periodic alimony and support. A closer examination of her financial affidavit,
however, reveals that the $40,000 in monthly periodic alimony will be more
than sufficient to cover her support needs when the lump sum alimony
installments end. The plaintiff’s monthly expenses include approximately
$15,755 in expenses relating to the children. See footnote 15 of this opinion.
As I previously noted, however, when the lump sum alimony payments end
in 2024, the parties’ children will have reached the age of majority. See
footnote 7 of this opinion. Thus, the periodic alimony and support award
of $40,000 per month, if unchanged, will provide the plaintiff with nearly
$11,000 more in monthly support than she needs ($45,000 less $15,755 equals
$29,245, which is approximately $11,000 less than the $40,000 monthly peri-
odic alimony and support award).
14
The plaintiff also argues that the lump sum alimony award is not a
functional property distribution because the trial court unequivocally
referred to the award as alimony and stated that the purpose of the award
was for the support and maintenance of the plaintiff. The majority makes
similar arguments. The mere labeling of the award as alimony and finding
that the award ‘‘is appropriate to provide for [the] continuing support of
the [plaintiff]’’ does not necessarily mean that the award was proper and
did not function as a property distribution. Instead, the alimony award must
actually be consistent with its purpose—support—and when the alimony
award provides approximately $6.9 million more than the plaintiff needs
for support, I cannot conclude that it comports with such a purpose.
15
I question the extent to which the $40,000 periodic award is insufficient
to provide for the plaintiff’s needs because her financial affidavit includes
numerous expenditures that relate to the children. The affidavit includes
the following monthly expenses incurred for the children: restaurant costs
($851), medical, dental, and counseling costs ($949), clothing costs ($2851),
personal care costs ($222), nanny and sitter costs ($4036), and lessons and
extracurricular costs ($6846, excluding Bat Mitzvah costs). If these costs
are subtracted from the plaintiff’s expenses, as adjusted in this opinion
(approximately $45,000), the plaintiff’s monthly support need totals $29,245.
Thus, the monthly unallocated alimony and child support award of $40,000
per month would completely provide for the plaintiff’s needs and leave
approximately $11,000 per month to defray child care costs.
16
In addition, the lump sum alimony award is nonmodifiable. As a result,
the defendant will be unable to modify the obligation as the children attain
the age of majority. Of course, he can seek an adjustment to the periodic
unallocated alimony and child support award pursuant to General Statutes
§ 46b-86.
17
As I previously noted in this opinion, the plaintiff’s stated need—
$65,444—overstates her actual monthly support need—approximately
$45,000. See footnotes 12, 13 and 15 of this opinion. In addition, there is no
reason to believe that the plaintiff’s financial affidavit does not reflect the
expense of maintaining her current lifestyle. Surely, no one could reasonably
argue that the stated monthly support need, or the support need as adjusted
in this opinion, merely covers the bare necessities. Moreover, it is no doubt
a truism that $102,500 exceeds both $65,444 and $45,000.
18
The majority claims that it ‘‘make[s] no judgment as to the excessiveness
or propriety of the alimony award as alimony.’’ (Emphasis omitted.) Footnote
25 of the majority opinion. Instead, the majority insists that its consideration
of the § 46b-82 factors supports ‘‘the characterization of the [lump sum]
award as alimony and not a property distribution.’’ Id. In my view, this
reasoning is circular. If the majority, after considering the § 46b-82 factors,
concludes that the lump sum award can fairly be characterized as alimony,
then it must conclude that the award is a proper amount, not an excessive
amount, for the support and maintenance of the plaintiff; after all, that is
the character of alimony. Thus, at least in my view, the majority’s conclusion
that the lump sum award is characteristically alimony necessarily is a conclu-
sion that the award is not excessive.
19
We have defined the statutory factor of ‘‘station’’ in §§ 46b-81 and 46b-
82 to mean standard of living. See, e.g., Blake v. Blake, 207 Conn. 217, 232,
541 A.2d 1201 (1988) (‘‘The most pertinent definition of ‘station’ . . . is
‘social standing.’ A person’s social standing is strongly correlated to his
standard of living . . . .’’).
20
A trial court must also consider an alimony obligor’s ability to pay
alimony and still provide for himself or herself. See Greco v. Greco, supra,
275 Conn. 361–62 (‘‘[i]t is hornbook law that what a spouse can afford
to pay for support and alimony is a material consideration in the court’s
determination as to what is a proper order’’ [internal quotation marks omit-
ted]). In this regard, § 46b-82 (a) directs the court to consider ‘‘the age,
health . . . occupation, amount and sources of income, earning capacity,
vocational skills, education, employability . . . and needs’’ of the obligor
spouse.
21
The plaintiff received a $4.75 million property settlement payment pursu-
ant to the premarital agreement, as well as other personal property, such
as home furnishings, an automobile or automobiles, personal savings, check-
ing and money market accounts.
22
Section 46b-215a-2b of the Regulations of Connecticut State Agencies
was in effect in 2014, when the parties’ marriage was dissolved. It was
repealed July 1, 2015.
23
In the present case, the trial court found that the presumptive minimum
child support obligation is $795. This finding conflicts with the amount
prescribed in the schedule for a family with four minor children and a
combined net weekly income of $4000. See Regs., Conn. State Agencies § 46b-
215a-2b (f) (setting presumptive minimum weekly child support obligation at
$765 for combined net weekly income of $4000). I assume the discrepancy
is a clerical error.
24
The majority claims that it is improper to consider the defendant’s need
to invade his assets to meet the alimony obligation because (1) the defendant
did not make this argument, and (2) the trial court made no finding regarding
the defendant’s earning capacity. See footnote 20 of the majority opinion.
Both claims are unwarranted.
First, the defendant in the present case claims that the trial court’s lump
sum alimony award is an improper functional property distribution. In order
to be a property distribution, the award must distribute some of the defen-
dant’s property to the plaintiff; therefore, necessarily subsumed in the defen-
dant’s claim is the argument that he will need to invade assets to satisfy
the alimony award. Moreover, at oral argument in the present case, counsel
for both the plaintiff and the defendant discussed the defendant’s need to
utilize assets to meet the alimony obligation and the impact, if any, that
fact should have on this court’s resolution of this case.
Even if I agreed that the defendant has not argued that he will need to
invade his assets to satisfy the alimony obligation—which I do not—that
would not prevent this court from considering such an argument in the
present case. Indeed, this court generally will not consider claims that the
parties have not raised; see, e.g., State v. Connor, 321 Conn. 350, 362, 138
A.3d 265 (2016) (‘‘appellate courts generally do not consider issues that
were not raised by the parties’’); and this opinion is consistent with that
principle. I have not addressed any claim that was not raised by the defen-
dant. Instead, I have merely decided the specific claim asserted by the
defendant, namely, that the lump sum alimony award is a functional property
distribution, albeit, on the basis of a slightly different argument or theory
than the defendant presented. See, e.g., State v. Dickson, 322 Conn. 410,
467 n.5, 141 A.3d 810 (2016) (Zarella, J., concurring in the judgment) (noting
that majority declined to adopt any of defendant’s three alternatives for
prescreening eyewitness identification testimony, opting instead to craft
rule of its own creation); Waterbury v. Washington, 260 Conn. 506, 549,
800 A.2d 1102 (2002) (agreeing with plaintiff’s claim but for reasons different
from those that plaintiff advanced). It is not improper for me to consider
the defendant’s need to invade assets because ‘‘it is an argument, not a
claim.’’ (Emphasis in original.) Michael T. v. Commissioner of Correction,
319 Conn. 623, 635 n.7, 126 A.3d 558 (2015); see id. (this court may ‘‘review
legal arguments that differ from those raised before the trial court if they
are subsumed within or intertwined with arguments related to the legal
claim raised at trial’’ [internal quotation marks omitted]). The majority’s
contrary assertion must be based on a misunderstanding of the argument-
claim distinction. ‘‘Generally speaking, an argument is a point or line of
reasoning made in support of a particular claim.’’ State v. Fernando A., 294
Conn. 1, 116 n.32, 981 A.2d 427 (2009) (Palmer, J., dissenting in part).
Arguments and claims are not subject to the same rules. See id. (‘‘[o]nly
claims are subject to our rules of preservation, not arguments’’). Moreover,
the defendant’s claim raises an issue of first impression. Accordingly, it
would be unfair and inequitable for this court to decline to address the
claim fully simply because the defendant did not accurately foresee the
exact argument on which the court would rest its decision. Cf. Rowe v.
Superior Court, 289 Conn. 649, 661 n.6, 960 A.2d 256 (2008) (preservation
rules are applied less stringently to arguments of first impression), overruled
in part on other grounds by Hardy v. Superior Court, 305 Conn. 824, 48
A.3d 50 (2012). Insofar as the majority is concerned that it would be unfair
or prejudicial to the plaintiff to decide the claim that the defendant raises,
which is based, in part, on the argument that the defendant will need to
invade his assets to satisfy the obligation, the proper remedy would be to
order supplemental briefing, not to avoid fully addressing the defendant’s
claim. In fact, this court often orders supplemental briefing when it identifies
an argument that may impact the resolution of a claim raised by the parties.
See, e.g., State v. Wright, 320 Conn. 781, 786–87, 135 A.3d 1 (2016) (defendant
argued that trial court improperly excluded certain evidence under rape
shield statute, and we ordered supplemental briefing regarding meaning of
‘‘material,’’ as used in statute).
Second, the majority’s assertion that ‘‘we cannot presume that [the defen-
dant] must invade his assets to pay the alimony and child support awards
based [on] this record . . . [because] the [trial] court did not make any
determination as to whether its finding of the defendant’s income was
also a finding of his earning capacity’’ is inconsistent with our case law.
(Emphasis in original.) Footnote 20 of the majority opinion. ‘‘It is well
established that the trial court may under appropriate circumstances in a
marital dissolution proceeding base financial awards . . . on the earning
capacity of the parties rather than on actual earned income.’’ (Internal
quotation marks omitted.) Tanzman v. Meurer, 309 Conn. 105, 113–14, 70
A.3d 13 (2013). We have recently decided, however, ‘‘that, when a trial court
has based a financial award pursuant to § 46b-82 or [General Statutes] § 46b-
86 on a party’s earning capacity, the court must determine the specific
dollar amount of the party’s earning capacity.’’ (Emphasis added.) Id., 117;
see also id. (‘‘the failure to specify the dollar amount of the earning capacity
leaves the relevant party in doubt as to what is expected from him or her,
and makes it extremely difficult, if not impossible, both for a reviewing
court to determine the reasonableness of the financial award and for the
trial court in a subsequent proceeding on a motion for modification to
determine whether there has been a substantial change in circumstances’’).
In light of this requirement, and because, as the majority acknowledges, the
trial court made no finding regarding the defendant’s earning capacity, the
financial orders in the present case must be based on the defendant’s actual
income. Thus, the reality of the present case is that the trial court ordered
an alimony award that exceeds the defendant’s income, thereby requiring
the defendant to invade his assets to satisfy the alimony and support obliga-
tion. The majority’s theoretical argument that perhaps the defendant has a
greater earning capacity and, therefore, could increase his income and avoid
the need to utilize assets to meet the alimony obligation is misplaced. The
trial court did not base its orders on such reasoning, and the orders should
not be upheld on the basis of such reasoning. That the trial court did not
impute income to the defendant evinces that the court concluded that the
defendant is reasonably meeting his earning potential and should not be
obligated to do better. The fact that, theoretically, the defendant may be
able to generate a greater income does not mean that he should have to.
A recent decision of the Appellate Court is instructive. In Dumbauld v.
Dumbauld, 163 Conn. App. 517, 523, 136 A.3d 669 (2016), the Appellate
Court considered a pendente lite alimony award that exceeded the obligor’s
income and, as a result, had to be paid out of the obligor’s assets. Acknowl-
edging that alimony in excess of the obligor’s income had been upheld in
the past, the Appellate Court nevertheless concluded that the award was an
improper property distribution. Id., 531. It reasoned that the cases permitting
alimony in excess of net income were distinguishable on two grounds. See
id., 527. First, in many cases, the court had found the obligor’s evidence
regarding his or her income to be untrustworthy and made specific findings
as to either imputed income or earning capacity. Id. Second, those courts
allowing alimony to be based on an ability to pay, rather than on imputed
income, earning capacity, or actual income, had the authority, pursuant to
§ 46b-81, to divide property. Id., 529. The statute permitting pendente lite
alimony, the court reasoned, did not authorize the court to transfer property
between spouses. Id., 530. Thus, the Appellate Court concluded that the
pendente lite alimony award was improper because it exceeded the income
of the obligor, the trial court made no finding regarding imputed income,
and the trial court was without authority to distribute property between
the spouses. See id., 531. Similarly, in the present case, the alimony obligation
exceeds the defendant’s income, and the trial court has made no finding
regarding imputed income or earning capacity. Moreover, the trial court
had no authority to transfer property between the spouses because the
spouses had executed a premarital agreement. Of course, a trial court may,
when necessary for support and maintenance of the alimony recipient,
require the obligor to pay alimony out of assets. Simms v. Simms, supra,
283 Conn. 505. As I discussed in this opinion, however, this is not such a case.
25
The plaintiff and the majority assert that the trial court called the award
alimony and stated it was for the support and maintenance of the plaintiff.
Thus, they say, it cannot be a functional property distribution. I say, ‘‘[s]up-
pose you see a bird walking around in a farm yard. This bird has no label
that says ‘duck.’ But the bird certainly looks like a duck. Also, he goes to
the pond and you notice he swims like a duck. Then he opens his beak
and quacks like a duck. Well, by this time you have probably reached the
conclusion that the bird is a duck, whether he’s wearing a label or not.’’ R.
Immerman, The CIA in Guatemala: The Foreign Policy of Intervention (1982)
p. 102. Of course, in this case, the alimony award has a label. That fact,
however, cannot be dispositive. See footnote 14 of this opinion. The label
does not change the award’s function. Cf. State v. Gooch, 186 Conn. 17, 18,
438 A.2d 867 (1982) (‘‘[p]utting a constitutional tag on a nonconstitutional
claim will no more change its essential character than calling a bull a cow
will change its gender’’). Indeed, the lump sum ‘‘alimony’’ award in the
present case looks like a property distribution. It works like one, too.
26
The majority avoids fully addressing the defendant’s claim that the lump
sum alimony award is a functional property distribution by expressing no
opinion regarding whether the alimony is excessive—although it seems to
attempt to justify the size of the alimony award—and by declining to address
the defendant’s need to invade assets to satisfy his alimony obligation.
Instead, it states: ‘‘[W]hen a trial court awards a spouse alimony exceeding
his or her claimed expenses in the wake of a [premarital] agreement distribut-
ing all of the parties’ property, the award may still be challenged as excessive
alimony, rather than a functional property distribution. [The] result [in the
present case] does not change this fact. . . . [T]he defendant did not ask
[the court] to proclaim the lump sum award as excessive even if [the court]
determine[s] that the award is not a functional property distribution.’’
(Emphasis in original.) Footnote 30 of the majority opinion. This is just
semantics. It seems to me that in a case in which the alimony award exceeds
both the recipient’s needs and the obligor’s income—thereby necessitating
the obligor to use assets to satisfy the alimony obligation—it should not
matter whether the obligor characterizes the alimony award as excessive
alimony or a functional property distribution. Under such circumstances,
that is a distinction without a difference.
27
I am not suggesting that a court’s alimony award must exactly equal a
recipient’s support and maintenance needs when there is an enforceable
premarital agreement. There most certainly is a zone of reasonable alimony
awards. An order that awards nearly $7 million in excess alimony, however,
is surely beyond the outer bounds of reasonableness.
28
The majority appears to ‘‘acknowledge’’ my concerns over the practical
consequences of its opinion in the present case. Footnote 30 of the majority
opinion. Nevertheless, the majority contends that, if trial courts are ‘‘tempted
to circumvent a lopsided property distribution contained in an otherwise
enforceable [premarital] agreement by awarding large amounts of alimony,
[j]udicial restraint counsels us to commend the issue to the attention of the
legislature for further review . . . .’’ (Internal quotation marks omitted.)
Id. The majority’s statement illustrates the point that its analysis misses.
The legislature has already addressed this issue by enacting the Connecticut
Premarital Agreement Act (act), General Statutes § 46b-36a et seq. That the
majority believes that the legislature must do more in order to prevent trial
judges from circumventing premarital agreements is akin to directing those
judges to ignore the act altogether.
29
The parties disagree on which standard should be applied to review the
premarital agreement in the present case. The plaintiff contends that the
agreement should be treated as a postnuptial agreement because it was
amended during the marriage, and, therefore, the agreement should be
subjected to ‘‘special scrutiny’’ in accordance with Bedrick v. Bedrick, 300
Conn. 691, 697, 17 A.3d 17 (2011). She contends that the same policy concerns
present in Bedrick, which resulted in the adoption of heightened scrutiny
for postnuptial agreements, are present in this case as well. On the other
hand, the defendant claims that the amended agreement should be treated
as a premarital agreement because the act expressly provides for the modifi-
cation of such agreements during the marriage. See General Statutes § 46b-
36f (‘‘[a]fter marriage, a premarital agreement may be amended’’). Thus, the
defendant claims, the enforceability of the agreement should be governed
by § 46b-36g, like all premarital agreements. Moreover, the defendant argues
that the plain language of § 46b-36g (a) requires such a conclusion in that
it provides that ‘‘[a] premarital agreement or amendment shall not be
enforceable if the party against whom enforcement is sought proves’’ either
that such party did not voluntarily enter into the agreement, the agreement
was unconscionable, such party was not provided with a fair and reasonable
disclosure regarding the property, financial obligations and income of the
other party, or such party was not afforded a reasonable opportunity to
consult with counsel. (Emphasis added.) Because I have concluded that the
premarital agreement in the present case would not survive the scrutiny
required by § 46b-36g, which is less exacting than the scrutiny required by
Bedrick, I need not decide which standard should be applied to a premarital
agreement that is amended during the marriage.
The plaintiff also argues that the defendant has waived the argument
that § 46b-36g, rather than Bedrick, should govern the enforceability of the
agreement. She asserts that the defendant failed to challenge the trial court’s
application of Bedrick, and, therefore, he cannot now challenge it on appeal.
As the defendant correctly notes, however, he was not aggrieved by the
trial court’s enforcement of the premarital agreement and, thus, could not
appeal the trial court’s decision to apply the special scrutiny required for
postnuptial agreements in accordance with Bedrick. See, e.g., Seymour v.
Seymour, 262 Conn. 107, 110, 809 A.2d 1114 (2002) (‘‘[o]rdinarily, a party
that prevails in the trial court is not aggrieved’’).
30
The plaintiff argues that the trial court found that the defendant’s income
disclosure was inadequate and that the defendant did not challenge that
finding in his principal brief in this appeal. Thus, the plaintiff contends, the
defendant has waived this claim. The defendant responds that he could
not challenge such finding on appeal because, in light of the trial court’s
enforcement of the premarital agreement, he was not aggrieved by the
finding. The plaintiff argues that, in Bauer v. Bauer, 308 Conn. 124, 60 A.3d
950 (2013), we rejected the very argument the defendant now makes, namely,
that a party cannot be aggrieved by a factual finding in the event that such
party agrees with the ultimate financial orders.
First, I believe that the plaintiff reads the trial court’s decision to establish
more than it does. The finding that the plaintiff relies on must be read in
context. At trial, the plaintiff argued that the defendant’s disclosure of his
assets was inadequate because he had valued the assets as of December
31, 2007, rather than contemporaneously with the execution of the amend-
ment to the premarital agreement in July, 2008. In addition, she argued that
the defendant had the information necessary for such valuation. The trial
court agreed that the defendant could have valued the assets as of July,
2008, but nonetheless found the disclosure of the value of the assets to be
adequate. The trial court reasoned that ‘‘the evidence supports a finding
that the [defendant’s] earlier disclosure of [the value of his] assets [was]
substantially the same as the financial picture at the time the [amendment]
was executed.’’ (Emphasis omitted.) The court then went on to state: ‘‘The
same, however, cannot be said for the [defendant’s] failure to adequately
disclose his income for the [eighteen months] preceding the execution of
the [amendment] in [July] of 2008.’’ I do not read this to be a finding that
the defendant’s disclosure was inadequate, in the sense that it was not fair
and reasonable as required by § 46b-36g (a) (3), as the plaintiff suggests.
Instead, when read in conjunction with the preceding sentence, the trial
court’s finding was that the defendant’s income disclosure was unlike his
asset disclosure in that the income disclosure did not provide the plaintiff
with a current value of his income, whereas the asset disclosure, despite
being based on a six month old valuation, provided a value that was substan-
tially similar to the value of the assets at the time the 2008 amendment was
executed. This reading is consistent with the ultimate conclusion of the trial
court, namely, that the premarital agreement was enforceable. If the trial
court had in fact found that the defendant’s financial disclosure was not
fair and reasonable, it could not have ultimately enforced the agreement,
regardless of whether the court applied the standard set forth in § 46b-36g
or in Bedrick v. Bedrick, 300 Conn. 691, 17 A.3d 17 (2011).
Second, Bauer is inapposite. In that case, the factual finding at issue was
that ‘‘[t]he parties agree to split equally the [husband’s] . . . pension and
annuity 403 (b) plans . . . .’’ (Internal quotation marks omitted.) Bauer v.
Bauer, supra, 308 Conn. 126. The trial court’s orders, however, failed to
address these plans. Id., 127. The trial court subsequently granted the wife’s
motion for clarification and clarified the ambiguity created by the absence
of an order addressing the court’s finding that the parties would split the
value of the pension and annuity plans. See id., 127–28. In light of the finding
that the husband was to split his pension and annuity plans with the wife,
the absence of any order regarding the plans, and the ambiguity created
when the two were considered together, we concluded that the husband
was indeed aggrieved by the finding. Id., 135–37. In the present case, how-
ever, even though the finding might arguably be to the defendant’s disadvan-
tage, the trial court enforced the premarital agreement. Thus, the defendant
was not aggrieved and could not have appealed the trial court’s finding.
See, e.g., Seymour v. Seymour, 262 Conn. 107, 110–11, 809 A.2d 1114 (2002);
see also footnote 29 of this opinion.
31
We noted that such factors may be relevant to whether a party executed
the premarital agreement voluntarily or whether the agreement was substan-
tively fair, but they do not affect the adequacy of the disclosure. Friezo v.
Friezo, supra, 281 Conn. 193. Thus, the timing of the disclosure or the ability
of the recipient of the disclosure to understand it may serve as a basis for
finding an agreement unenforceable under § 46b-36g (a) (1) (voluntariness),
or § 46b-36g (a) (2) (unconscionability).
32
Schedule E income can include real estate rental income, royalties, and
income from partnerships or S corporations.
33
The Appellate Court’s reasoning in Beyor is flawed for a number of
reasons. First, a premarital agreement is enforceable only when it is entered
into voluntarily. See General Statutes § 46b-36g (a) (1). In McHugh, we noted
that, in order for the waivers effectuated by a premarital agreement to be
voluntary and knowing, the waiving party must ‘‘be aware of any right that
he [or she] possesses prior to a proper waiver of it.’’ McHugh v. McHugh,
supra, 181 Conn. 486. We explained that fair and reasonable disclosure is
a prerequisite to a valid agreement precisely because each party must know
what is being waived. See id. Thus, with respect to Beyor, that the wife had
waived any right to alimony is of no consequence to the adequacy of the
husband’s disclosure. Indeed, the fact that the husband did not make a fair
disclosure of his income calls into question the validity of the wife’s waiver.
Second, in Friezo, we noted that financial disclosure in this context is a
duty to inform, and, accordingly, the focus of the examination should be
on the actions of the disclosing party, not on the party to whom disclosure
is made. See Friezo v. Friezo, supra, 281 Conn. 192–93. Because disclosure
is a duty to inform, the fact that the wife in Beyor knew of the significant
disparity in her wealth and the husband’s wealth misses the mark. The
Appellate Court’s focus should have been on the husband’s disclosure. Of
course, if the wife had sufficient, independent knowledge of the husband’s
income, then the husband would not have had to make a fair and reasonable
disclosure of such income. See id., 188 (noting that majority of jurisdictions
require disclosure ‘‘when a party’s independent knowledge is insufficient’’);
Winchester v. McCue, 91 Conn. App. 721, 729, 882 A.2d 143 (holding that
premarital agreement was enforceable despite omission of parties’ income
from disclosures because parties possessed independent knowledge of each
other’s financial situation), cert. denied, 276 Conn. 922, 888 A.2d 91 (2005).
It does not appear to me, however, that the Appellate Court’s decision was
based on the conclusion that the wife had sufficient knowledge of the
husband’s income, as opposed to his wealth. Third, and finally, the 2006
Schedule E income was a significant portion of the husband’s annual income.
In his financial disclosure, the husband disclosed a weekly gross income
of $4610. Beyor v. Beyor, Conn. Appellate Court Briefs & Appendices, March
Term, 2015, Plaintiff’s Appendix p. A33. That is $239,720 annually. The
undisclosed Schedule E income was $394,048; Beyor v. Beyor, supra, 158
Conn. App. 762; approximately 62 percent of the husband’s $633,768 annual
income in 2006. It strains credulity to suggest that the husband’s financial
disclosure was fair and reasonable, despite the omission of such a substantial
portion of his income.
34
This is not to say that, in all instances, a disclosure of historical income
data would not constitute a fair and reasonable disclosure of the disclosing
party’s current income. For example, in Friezo, the parties executed the
premarital agreement in November, 1998, but the husband disclosed his
1997 gross income. Friezo v. Friezo, supra, 281 Conn. 177, 191. In that case,
we did not decide whether the disclosure was fair and reasonable despite
the disclosure of past, rather than current, income because the wife did not
make such an argument. Nonetheless, I can imagine a set of circumstances
in which such a disclosure would be fair and reasonable, such as those in
which the disclosing party’s income does not materially fluctuate from year
to year. That is not this case, however, when one’s income has varied
significantly. In 2006, the defendant’s income increased to nearly $1.7 million
from approximately $900,000 the year before. Then, in 2007, his income
decreased to approximately $1.25 million. Finally, in 2008, his income had
fallen to approximately $575,000. This income range of more than $1 million
in just four years is not an immaterial fluctuation.
35
Neither party has argued that the invalidation of the 2008 amendment
on the basis of an inadequate financial disclosure would reinstate the original
1997 premarital agreement. Thus, despite my grave reservations regarding
the unconscionability of the original premarital agreement, I express no
opinion on the validity of such agreement or the possible claim that such
agreement should be reinstated in light of the invalidation of the amendment
to that agreement.