Opinion
FSTFA166029993S
06-07-2018
Allison BERNHARD v. Jeffrey BERNHARD
UNPUBLISHED OPINION
Randolph, J.
I. STATEMENT OF THE CASE
The matter proceeded to trial and both parties were represented by counsel.
II. LEGAL ISSUES
Is the antenuptial agreement enforceable? If not, what should be the equitable property distribution?
III. STATEMENT OF FACTS
Financial Affidavits
Plaintiff has net income through unemployment compensation in the amount of $534 a week. She claims weekly expenses in the amount of $5,052.11 per week. She is not paying all of the expenses as the defendant has stopped making full payments pursuant to a pendente lite support order. The weekly expenses include rent or mortgage, utilities, transportation costs, household improvements, automobile loans or leases and expenses associated with the jointly held marital property located at 223 Lake Rd. in Bozrah, Connecticut. The total weekly expenses also include attorneys fees’ for prosecution of the instant action. She lists the total cash value of all assets at $914,004.59 and total liabilities in the amount of $81,455.50. She claims, however, the "value of her interest" in properties solely owned by defendant. The plaintiff estimates the fair market value of the marital residence in Weston at $1,300,000.00 and the fair market value of the jointly owned farm in Bozrah at $800,000.00. However, the value of her assets may be reduced by at least $650,000.00 because the defendant holds the Weston property, valued at $1.3 million, in his name alone. The value of her assets may be further reduced by $29,615.00 as she claims an interest in a UBS account which is held solely by the defendant.
The defendant is self-employed. He claims gross weekly income/monies and benefits from all sources totaling $43.68. He also claims this amount as his net income. He lists his weekly expenses at $3,224.94 and pays the expenses by drawing on his savings account. He lists the total cash value of all assets at $1,614,687.78. He lists his total liabilities at $9792.53. The defendant estimates the fair market value of the marital residence in Weston at $1,000,000.00 and the fair market value of the jointly owned farm at $1,000,000.00.
The Parties’ Relationship
The parties have been married for 20 years. Plaintiff and defendant met in September 1995. They lived together during 1995 and 1996. They were engaged in 1996. At the time of the engagement the plaintiff and the defendant were not employed. The defendant’s parents paid their bills.
Plaintiff and defendant discussed the idea of a prenuptial agreement before they were engaged. Plaintiff expressed no reservations about signing the agreement once it was drafted. She did not object to the provision in the agreement concerning the waiving of alimony but was displeased with the provision concerning the return of the engagement ring.
Plaintiff and defendant married in June 1998. The defendant’s mother and father paid for the wedding. Shortly before the wedding, the plaintiff was planning for graduation, taking final exams and planning for the honeymoon. The defendant’s mother had spent hundreds of thousands of dollars on the wedding. As a result, the plaintiff testified that she felt pressure to sign the antenuptial agreement. She signed the agreement a few days before the wedding.
The parties agreed to construct the marital home at 23 Bernhard Drive in Weston on a lot already owned by the defendant. The building permit was issued two days after the wedding. The plaintiff was managing the construction project and signed many of the checks for the construction work.
I was managing the construction project ... overseeing it. I was there just about every day ... signing contracts, checks, the payments.
The defendant’s parents paid for the lot. Builders completed the construction on the home before the summer of 2000. The defendant’s parents paid 100% of the construction costs transferring approximately $750,000.00 into the parties’ joint checking account. The plaintiff has lived in the home since the year 2000.
Early in the marriage, the defendant worked for his father’s investment fund. He was paid biweekly and plaintiff regularly deposited his checks. The plaintiff was working at Soup Alley, a restaurant which the parties opened in 1998 and was jointly owned by the plaintiff and the defendant. The plaintiff handled the day-to-day operations of the restaurant from October 1998 until November 2011. The menu featured her recipes.
I was involved with cooking, menu planning, day to day operations, training employees, managing staff, payroll, accounting, ordering inventory ...
Between 2013 and 2016 the plaintiff helped defendant’s mother manage properties owned by the defendant’s mother. She also managed the 100-acre farm the plaintiff and defendant purchased with proceeds from the restaurant. Concerning one of her mother-in-law’s properties the plaintiff ordered dumpsters, oversaw the stripping and painting of the interior and exterior of the property, attended broker open houses, interviewed brokers, coordinated all the photography for the listing of the property and reviewed the listing narrative. She also managed remodeling work at the Bernhard’s Southport business location and prepared another Bernhard family property in Washington, Connecticut, which included a gallery and storage units, for listing.
Early in the marriage, the plaintiff also worked for defendant’s father’s investment fund. The fund began to lose money and the defendant began working at Soup Alley for a few hours a day. During this time, the defendant’s parents paid most of the bills for the plaintiff and the defendant. Between 1997 and 2017 the defendant received over $3 million from his parents. His parents made monthly deposits into his account in amounts between $14,000 and $16,000. As a stock analyst employed by his father, the defendant earned approximately $60,000.00 a year.
In 2008, the restaurant had very little business. The defendant became agitated that business had fallen off and he blamed the plaintiff. During one argument, the defendant assaulted the plaintiff at the marital residence choking her and throwing her around the room.
In 2012, the plaintiff was bitten by a lyme carrying tick. She tested positive for Lyme disease. She still undergoes medical treatment. The disease has caused her to miss work. She suffers from joint inflammation, fevers and "brain fog." She was working full-time from May 2016 until February 2018 when she was terminated. Her medical condition contributed to
The Restaurants and Graduate School
By 2011 the Soup Alley restaurants had two locations, one in Norwalk and the other in Wilton. Plaintiff and defendant decided to sell the Norwalk restaurant. They also decided to enroll in graduate school to pursue a Masters degree in business administration. The defendant’s mother and father paid for all of the plaintiff’s and defendant’s education and other expenses. Both graduated with a Masters degree in Business Administration in 2013.
Husband’s Businesses
In 2013, the defendant was not employed. In 2014, he established a clothing accessory business, J. Bernhard Designs, in Nicaragua. The plaintiff visited the defendant in Nicaragua 2014. He signed a lease, with which she did not agree, for a storefront location for his business in Nicaragua. She tried to convince the defendant to return home. There was no income production from the enterprise.
The defendant employed models to model his accessories and he spent six months in Nicaragua in 2014. In 2015, the defendant spent 10 months in Nicaragua. In 2016, the defendant returned home twice. The plaintiff suspected the defendant was cheating on her as she discovered pictures of naked women on his mobile device. Plaintiff claims a 50% interest in the business on her financial affidavit but claimed only a 10% interest at trial. She desires no ownership interest and no compensation from the operation or sale of the business.
The Antenuptial Agreement and Legal Representation of the Parties
The defendant was adopted as an adult by A. Van H. Bernhard. Attorney Kathleen Bornhurst represented A. Van H. Bernhard in the adoption process. Attorney Mark Grenier represented the defendant in the adoption. The defendant chose Attorney Grenier to represent the defendant in the adoption. The defendant chose Attorney Grenier to represent the plaintiff concerning the antenuptial agreement. Attorney Grenier, also represented the defendant in matters concerning the Soup Alley restaurant and on matters concerning the construction contract on the marital residence. He was paid by the defendant’s family, through their personal assistant, Stephanie Sacchetti, for at least one matter connected to the antenuptial agreement. He sent no conflict of interest letters to the plaintiff on any matter.
Pendente Lite Orders
On December 23, 2016, Tindall, J. entered pendente lite orders.
The defendant ... will pay all of the household expenses, including medical bills, health insurance, mortgages, bills, credit cards ... and invoices as were customarily paid throughout the marriage. That will not change. That has been the status quo ... He will also pay an additional $500.00 per week for the plaintiff to spend on whatever it is that she would like to spend it on.
Transcript of December 23, 2016, p. 4.
At the time the orders entered, defendant was receiving assistance from his parents. In October 2017 the defendant’s parents stopped giving him the same amounts of money they had given him since 1997 ... he was no longer receiving $14,000 to $16,000 a month. He drew on his UBS savings account to comply with the pendente lite orders. The parents discontinued their level of financial assistance to the defendant only as a result of the dissolution proceeding.
Provisions of the Antenuptial Agreement
The parties executed the Antenuptial Agreement on June 9, 2013. Provisions relevant to separate property rights, alimony, and attorneys fees are set forth below.
1.1 DEFINITION OF SEPARATE PROPERTY. Notwithstanding the contemplated marriage of the parties, and notwithstanding any periods of cohabitation prior to
(1) all property, whether real or personal, belonging to the other party at the time of the signing of this Agreement ...
2.1 SEPARATE PROPERTY RIGHTS. All properties presently owned by Jeff, including those properties listed in schedule A and such property as defined in Article 1, are now his sole and separate property and shall remain the separate property of Jeff ... and all of such property shall be restored to him in the event the parties separate or in the event of a court ordered declaration of voidness ... or to his estate in the event of his death. Allison does hereby waive and forever disclaim all marital and other rights in such property, and Allison agrees that Jeff shall have the exclusive right to control and manage such property.
4.1 PROPERTY ACQUIRED JOINTLY DURING THE MARRIAGE. The parties contemplate that during the marriage they may jointly acquire a residence and other real and/or personal property.
4.2 In the absence of an express written agreement to the contrary, any jointly acquired property, whether real or personal, shall be owned by the parties and proportions equal to their respective contributions to the purchase price.
4.6 Upon any termination of the marriage, whether by judicial decree of annulment, legal separation or dissolution, the parties shall divide and distribute any jointly owned property in proportion to the parties’ respective ownership interests therein.
9.6 [DISSOLUTION OF MARRIAGE]. Except as set forth herein, each party hereby waives any right he or she might otherwise have or acquire to seek any alimony or spousal support from the other in any action for a divorce, dissolution of marriage, legal separation or annulment. The parties intend that this waiver shall apply to claims either might otherwise have for temporary or pendente lite alimony or spousal support during the pendency of the action as well as the claims for alimony or spousal support to be awarded in connection with any final judgment in such action. The foregoing notwithstanding, if the marriage is terminated at any time following two full years of marriage, Jeff shall pay to Allison as alimony $100,000.00 (the "Alimony") ... The alimony shall be paid in three equal annual installments commencing on the date of the termination of the marriage.
9.7 In the event the waiver in the preceding paragraph is deemed ineffective or otherwise disregarded by a court of law for purposes of any claim for alimony or spousal support, whether during the pendency of any proceeding or in connection with any final judgment, it is the intention of the parties that the determination by the court as to the payment of alimony or spousal support be governed by the terms set forth herein.
(1) In determining the ability of Jeff and Allison to pay such alimony or spousal support to the other, the court is to consider only the income from employment of Jeff and Allison and the income from any joint assets to be divided between the parties, pursuant to this Agreement.
(2) In making said determination as to the ability to pay, the court is not to consider the assets or net worth of the paying party, the income from any separate property of the paying party as defined herein, any inheritance or trust interests of the paying party, any annuities to which the paying party is entitled, or any pension rights of the paying party.
(3) It is the intention of the parties that this paragraph 9.7 be given effect only if and to the extent that the waiver of alimony and spousal support set forth in paragraph 9.6 is disregarded or deemed ineffective by a court of law. The parties do not intend by this paragraph 9.7 to create or acknowledge the existence of any right or claim by either party to alimony or spousal support to be paid by the other.
9.8 In the event of any action between the parties for divorce, dissolution of marriage, legal separation or annulment, regardless of the jurisdiction in which the action is pending and regardless of the grounds upon which the action is based neither party will request any determinations or seek any relief contrary to the terms of this Agreement.
9.10 In the event of a subsequent action between the parties for divorce, dissolution of marriage, legal separation or annulment, Jeff shall pay up to $10,000 of Allison’s accounting fees, attorneys fees, appraisal fees, and fees of expert witnesses of every kind and character and other expenses whether or not same are taxed as court costs (the "Costs"). Any of Allison’s costs which exceed $10,000 and which Jeff is required to pay shall reduce the alimony provided for in paragraph 9.6. If either party unsuccessfully seeks to invalidate a portion or all of this agreement or seeks to recover property in a manner which deviates from the terms of this agreement, then such party shall be liable to the other party for all reasonable and necessary attorneys fees and costs incurred by the other party and successfully defending his or her rights under this Agreement.
11.1 [AGREEMENT VOLUNTARY AND UNDERSTOOD] Jeff has disclosed to Allison the nature and extent of his assets and liabilities and the sources and amounts of his present income. Such disclosure including both earned and unearned income, whether or not the same is taxable for federal tax purposes. Such information is also set forth on schedule A ...
11.3 Each party has carefully examined the other’s financial condition and position. Each party has had the opportunity to make further inquiries about the other’s financial position, and each party knowledge is receipt of satisfactory information and responses to all such inquiries. Each party further acknowledges that he or she had ample time to conduct such inquiries prior to the execution of this Agreement.
11.4 Each party acknowledges that he or she has been fully informed as to the financial circumstances of the other party. The purpose of such financial disclosure is to enable each party, prior to entering into this agreement, to fully understand the specific nature and extent of the assets, income and other property interests to which this agreement applies.
11.5 Allison warrants and agrees that she executes and acknowledges this agreement only after carefully reading same and after such reading and consultation with her attorney, she is fully considered and understands all of the terms and provisions hereof, and their legal effect and ramifications. Allison further acknowledges that she believes it is in her best interest to sign, execute and deliver this instrument. Allison further acknowledges that this agreement is just, fair and equitable and that this Agreement is signed willingly, freely and voluntarily as her act and deed without reliance upon any representation of Jeff or any of his agents, other than those expressly set out in this Agreement.
If the court finds the antenuptial agreement enforceable, the plaintiff contends that she would receive approximately $61,000.00 from the jointly held TD account and $150,000.00 in lump sum alimony payable in three equal installments. She further asserts that if the court upheld the agreement, she would have to repay the defendant all of the alimony pendente lite paid to date, the car payments made by defendant, the carrying costs of the farm and defendant’s attorneys fees totaling over $100,000.00. She estimates that she would have to repay approximately $207,000.00 if the court upholds the agreement. She has no access to funds to repay under the agreement. On the other hand, she estimates the defendant will be able to keep assets with a total cash value of $1.6 million dollars if the court upholds the agreement.
Attorneys Fees
As of the date of this writing, the plaintiff has paid attorneys fees in the amount of $34,416.22. The amount due is an additional $66,682.10. The total is $101,098.32. Defendant has paid $24,597.22 to his attorney and owes an additional $33,802.22. His total is $58,399.44.
IV. PRINCIPLES OF LAW
Alimony, Pendente Lite
"The fundamental purpose of alimony pendente lite is to provide the wife, during the pendency of the divorce action, with current support in accordance with her needs and the husband’s ability to meet them." Papa v. Papa, 55 Conn.App. 47, 52 (1999). "The fundamental purpose of alimony pendente lite is to provide the recipient spouse during the pendency of the divorce action, with current support in accordance with [the recipient] spouse’s needs, and the [obligor spouse’s] ability to meet them. Alimony is not designed to punish, but to ensure that the former spouse receives adequate support. It is a long settled principle that the obligor spouse’s ability to pay is a material consideration in formulating financial awards. Dumbauld v. Dumbauld, 163 Conn.App. 517, 525-26 (2016) (internal citations omitted).
"Alimony and support pendente lite may be awarded to either of the parties from the date of the filing of an application therefor with the Superior Court. Full credit shall be given for all sums paid to one party by the other from the date of the filing of such a motion to the date of rendition of such order. In making an order for alimony pendente lite, the court shall consider all factors enumerated in section 46b-82 except the grounds for the complaint or cross-complaint, to be considered with respect to a permanent order of alimony. C.G.S. Section 46b-83.
Alimony
"In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall consider the evidence presented by each party and shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 ..." C.G.S. Section 46b-82. "The purpose of alimony is to meet one’s continuing duty to support ... while the purpose of property division is to unscramble the ownership of property, giving to each spouse what is equitably his." Dumbauld v. Dumbauld, 163 Conn.App. 517, 531 (2016) (internal quotation marks and internal citations omitted). "Evidence of [substantial gratuities received in the past] ... is admissible in formulating financial orders relating to dissolution of marriage. Where past gratuities have been made on a regular basis ... the court may reasonably assume that those contributions will continue. If they should terminate, any ... award may be modified." Unkelbach v. McNary, 244 Conn. 350, 361 (1998).
Assignment of Property
"In fixing the nature and value of the property, if any, to be assigned, the court, after considering all the evidence presented by each party shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties’ acquisition, preservation or appreciation in value of their respective estates." C.G.S. Section 46b-81(c)
Premarital Agreements
"A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that: (1) Such party did not execute the agreement voluntarily; or (2) The agreement was unconscionable when it was executed or when enforcement is sought; or (3) Before execution of the agreement, such party was not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party; or (4) Such party was not afforded a reasonable opportunity to consult with independent counsel ... An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law." C.G.S. Section 46b-36g(a) and (c).
"An antenuptial agreement is a type of contract and must, therefore, comply with ordinary principles of contract law ... Antenuptial agreements are to be construed according to the principles of construction applicable to contracts generally ... Antenuptial agreements relating to the property of the parties, and more specifically, to the rights of the parties to that property upon the dissolution of the marriage, are generally enforceable ... if the circumstances of the parties at the time the marriage is dissolved are not so beyond the contemplation of the parties at the time the contract was entered into as to cause its enforcement to work injustice ... The party seeking to challenge the enforceability of the antenuptial contract bears a heavy burden ... This heavy burden comports well with the settled general principle that courts of law must allow parties to make their own contracts ... Whether provident or improvident an agreement moved on make their own contracts ... Whether provident or improvident an agreement moved on calculated considerations is entitled to the sanction of the law ..." Chang v. Chang, 170 Conn.App. 822, 826-27 (2017). "In the absence of a clear indication that the antenuptial agreement is unenforceable because it was not validly entered into, that it violated public policy or that it would be unjust to enforce the agreement due to a significant and uncontemplated change in the parties’ circumstances ... we are unable to rewrite the terms of the contract to which the parties themselves agreed." Reizfeld v. Reizfeld, 125 Conn.App. 782, 800 (2011) citing Crews v. Crews, 295 Conn. 153, 173 (2010).
Attorneys Fees
"In any proceeding seeking relief under the provisions of this chapter ... the court may order either spouse, or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82." C.G.S. Section 46b-62.
V. ANALYSIS
The plaintiff urges the court to find the prenuptial agreement unenforceable. She alleges that she did not execute the agreement voluntarily and that the agreement was unconscionable when it was executed and will be so if the court enforces it. She also alleges that she was not provided a fair and reasonable opportunity to consult with independent counsel and that the defendant did not disclose all of his assets prior to her signing the prenuptial agreement. The court addresses each claim in turn.
The plaintiff felt pressured to sign the agreement. Her mother-in-law spent hundreds of thousands of dollars on the wedding and the money was non-refundable. She signed the agreement four days before the wedding. She testified that she did not read the agreement and that her lawyer was not present when she signed the agreement. Section 11.5 of the agreement states the plaintiff has carefully read the agreement and that she understands all of the terms and their legal effect and ramifications. Her signature acknowledges that the agreement is in her best interests and that the agreement is fair and equitable. (Antenuptial Agreement, Section 11.5.) The plaintiff’s attention to detail concerning the general contracting duties at the Weston property, her management of the restaurants, and her oversight of the listings of her mother-in-law’s properties undermines the assertion that she did not read the agreement.
The plaintiff claims that the agreement was unconscionable when the parties executed it and would be unconscionable if the court enforced it.
Unconscionable - 1. Not guided or controlled by conscience: unscrupulous; 2a. Excessive, unreasonable; 2b. shockingly unfair or unjust.
Merriam Webster’s Collegiate Dictionary, Tenth Edition 1993.
Plaintiff signed the agreement knowingly and voluntarily. Although the provisions of the agreement, in the context of all of the circumstances at the time of its execution, were not favorable to the plaintiff, the court cannot find that all of the provisions were shockingly unfair or unjust. If the court did not enforce the entire agreement, the court would have to find that one or more of the provisions are shockingly unfair or unjust considering the position of the parties today.
Today, the plaintiff’s health has prevented her from working full-time in the type of position she once held. She collects unemployment compensation. She has no legal interest in the marital home and a half interest in the Bozrah farm which is jointly owned with the defendant. She maintained the Weston property while the defendant spent months at a time in Nicaragua where his business was unprofitable. She attended to the management, maintenance and listing of her mother-in-law’s properties. She claims the Bozrah property is "under water" in that more is owed on the property than the property is worth. Under Section 9.10, the plaintiff’s lump sum alimony of $100,000.00 (Section 9.6) would be reduced by the amount the defendant must pay in defending the action. This ‘abatement’ of alimony would start after the defendant paid counsel fees of $10,000.00 in defense of the action. Since the defendant’s attorneys fees total $58,399.44, the plaintiff’s lump sum alimony would be $51,600.56 [$100,000 minus $58,399.44 plus $10,000.] (Section 9.6).
Under Section 4.6 of the agreement, the parties would equally divide their respective shares of jointly owned property in the event of divorce. If the fair market value of the Bozrah property is $800,000 as plaintiff claims and the principal mortgage balance is $661,220.77, the equity is $138,779.23. If the fair market value is $1,000,000 as the defendant claims and the other encumbrances total $653,996.53, the equity is $346,003.47. At worst under her estimate, the plaintiff’s share of the Bozrah property is valued at $69,389.61.
Plaintiff next claims she had no reasonable opportunity to consult independent counsel. The parties began discussions about a prenuptial agreement months before the wedding. Although the agreement was not drafted, plaintiff had an opportunity to consult independent counsel about prenuptial agreements. The nature of plaintiff’s legal representation concerning the prenuptial agreement is nevertheless troubling. The defendant’s family paid for representation for the plaintiff and the agreement heavily favored the defendant. The lawyer hired to represent the plaintiff also represented the defendant in his adult adoption. He represented the defendant in the construction of the marital home and he represented the defendant and plaintiff in matters concerning the jointly owned restaurant. Plaintiff’s lawyer did not provide a conflict of interest letter to plaintiff. It is wholly reasonable to foresee the deeply compromised ability of plaintiff’s counsel in advising plaintiff not to sign the prenuptial agreement. Such advice would cross cut the wishes of his other paying client, the defendant.
Nevertheless, the plaintiff had a reasonable opportunity to consult independent counsel. She did not exercise that choice. However, the lawyer who represented her cannot be considered independent counsel.
Plaintiff also claims that defendant did not disclose his assets prior to the execution of the agreement. The claim has little merit. Plaintiff and defendant lived on the largesse of defendant’s parents for most of the marriage. She was aware of his assets. The defendant turned over his paychecks to plaintiff and plaintiff knew the defendant’s business was profitless.
Plaintiff and defendant have been married for 20 years. She is in her early 40’s. The defendant began spending long periods in Nicaragua and the plaintiff suspected him of infidelity. Both have Masters of Business Administration degrees. For most of the marriage the defendant’s parents supported plaintiff and defendant. Plaintiff is now unemployed collecting unemployment compensation. She has no other source of income other than through the pendente lite orders. She has earned up to almost $70,000 a year but lost the job because of the effects of Lyme disease. She is looking for employment. The only substantial asset in her name is her half interest in the Bozrah farm which she claims is under water. She is still under treatment for Lyme disease. If her health improves, she may be able to find a job making as much as her last job paid. She is unable, however, to pay the carrying costs of the only real estate she and the defendant jointly own.
The defendant also has a Master of Business Administration degree. His family still pays for some of the expenses of his living arrangements in Nicaragua. The family stopped giving him money in October 2017 only as result of the pending dissolution action. He had been receiving $14,000.00 to $16,000.00 a month from his family. The gratuities ended during the instant action only as a result of the instant action. The defendant offered no credible evidence that gratuities would not continue after disposition of the case. His opportunity for the acquisition of future capital assets and income is good. See Chang, supra, at 826-27. He values his total cash assets at more than $1.6 million dollars. He estimates his liabilities, other than those associated with the instant action, at less than $10,000.00.
The Agreement is not favorable to the plaintiff. The court cannot find by a preponderance of the evidence, however, that the entire Agreement was unconscionable at the time she entered into it or that the entire Agreement renders unconscionable results if executed. However, the court finds excessive, unjust and unreasonable the abatement clause in Section 9.10 requiring the plaintiff to ‘reimburse’ the defendant’s counsel fees exceeding $10,000. Reasonable fees in this jurisdiction routinely far exceed $10,000 as they have in this matter. Plaintiff has suffered serious medical problems causing her to lose a well-paying full-time job. Her illness could not have been reasonably foreseen when she signed the Agreement. See Unkelbach, supra, at 361. She still suffers from the disease and has not found comparable employment. Requiring her to repay support, is excessive and unreasonable considering her medical condition today. The court therefore finds Section 9.10 unenforceable concerning the provision for abatement of alimony.
VI. CONCLUSIONS OF LAW
The court has considered all of the evidence and all of the factors enumerated in C.G.S. Sections 46b-81 and 46b-82. The court finds the agreement enforceable.
VII. JUDGMENT
The Marriage
The marriage is dissolved and the parties shall live separate and apart.
The Antenuptial Agreement
The Agreement is enforceable. The assets of the parties will be distributed according to its terms.
1. Real Estate
23 Bernhard Drive shall remain the sole property of the defendant.
The property at 223 Lake Road, Bozrah, CT shall be immediately placed on the market to be sold for fair market value. The net proceeds of the sale shall be divided equally between the parties.
2. Tangible Personal Property
a. The personal effects of the plaintiff, together with the motor vehicle customarily driven by her regardless of title standing, plus one-half of all generic goods, by value shall belong solely to the plaintiff, subject to any encumbrances thereon.
b. The personal effects of the defendant, together with his collection of bikes, cycles and cars as enumerated in his financial affidavit, his firearm collection and one-half of all generic household goods, by value, shall belong solely to the defendant, subject to any encumbrances.
3. Liquid and Intangible Assets
a. All cash, checking accounts, stocks and bonds standing in either party’s sole name shall belong to that party free of any claim of the other party.
b. All cash, checking accounts, stocks and bonds standing in the joint names of the parties, or in any LLC or corporation jointly owned by shall be divided equally as to value between the parties.
c. The defendant shall solely own a 100% interest in J. Bernhard Designs, and the plaintiff shall cooperate by executing any required transfer, release or quit-claim of interest that may be required of a marital or stockholder under the laws of the Republic of Nicaragua.
4. Lump Sum Alimony
The defendant shall pay to the plaintiff the sum of $100,000 adjusted for the increase of the cost of living as calculated and set for in Exhibit A hereto, to wit, $153,768. There shall be no abatement of alimony paid by the defendant to or for the plaintiff for his defense at any stage of the proceedings. The defendant shall pay the foregoing to the plaintiff in three equal annual installments, the first being due on the date of termination of the marriage.
IT IS SO ORDERED.