Opinion
No. FA08-4031102S
March 22, 2010
MEMORANDUM OF DECISION
ISSUE
The issue before the court is enforceability of the parties' prenuptial agreement in which they each waived any claims for alimony and assignment of property in the event of a dissolution where fault is admitted.
PROCEDURAL HISTORY
The plaintiff, Frank Noto, and the defendant, Geraldine Buffington, were married on August 25, 2001 in Connecticut. They entered into a written premarital agreement on August 23, 2001. On May 2, 2008, the plaintiff filed for dissolution on the grounds of desertion and adultery.
The plaintiff filed a stipulation on November 3, 2009 in which both parties agree to certain facts for "the sole and limited purpose of obtaining a ruling from the court on an issue of law [whether the premarital agreement barring alimony and property assignment is enforceable] that is central to the disposition of this marriage." These facts include: "The parties entered into a written premarital agreement . . . in which they each "waived any claims for alimony and assignment of property in the event of a subsequent divorce . . ." Further, "[t]he party claiming the protection afforded by the premarital agreement is alleged to have left the other party to reside in another state, alleged to have resided with and continues to reside with, another person of the opposite sex alleged to have committed adultery during the marriage, all alleged to have precipitated the initiation of this [divorce] action." Also, on November 3, the plaintiff filed his memorandum of law in support of finding the premarital agreement unenforceable and, on the same date, the defendant filed her memorandum of law regarding the enforceability of the marital agreement.
In essence, the parties are requesting this court to bifurcate the trial of the above-captioned matter and issue a separate ruling regarding the enforceability of the prenuptial agreement.
"Pursuant to General Statutes § 52-205 and Practice Book § 15-1, a trial court may order that one or more issues that are joined be tried before the others . . . The bifurcation of trial proceedings lies solely within the discretion of the trial court . . . [and] appellate review is limited to a determination of whether this discretion has been abused." (Citation omitted; internal quotation marks omitted.) Saczynski v. Saczynski, 109 Conn.App. 426, 428, 951 A.2d 670 (2008).
DISCUSSION
"Prenuptial agreements [entered into after October 1, 1995] are governed by Connecticut General Statutes § 46b-36a et seq., also known as the Connecticut Premarital Agreement Act (the act). Section § 46b-36g outlines the standards for enforceability. That section provides: "(a) 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." LaCore v. LaCore, Superior Court, judicial district of Middlesex, Docket No. FA 05 4001964 (February 3, 2006, Dubay, J.). "The act expressly shifts to the party, who questions the validity of the agreement the burden of proving why the agreement should not be enforced." Dornemann v. Dornemann, 48 Conn.Sup. 502, 514, 850 A.2d 273 (2004) ( Dornemann I) [ 37 Conn. L. Rptr. 74].
"The Connecticut Premarital Agreement Act governs all prenuptial agreements executed on or after October 1, 1995. The intent of the legislature in drafting the Act was to codify the standards found in McHugh v. McHugh, 181 Conn. 482, 485, [ 436 A.2d 8] (1980). McHugh set out three conditions for the enforceability of prenuptial agreements . . . (1) the contract was validly entered into; (2) its terms do not violate statute or public policy; and (3) 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." (Internal quotation marks omitted.) LaCore v. LaCore, supra, Superior Court, Docket No. FA 05 4001964. "A prenuptial agreement executed after October 1, 1995 should be found valid and enforceable if it satisfies the above-mentioned statutory standards." Id.
The plaintiff argues that based on the defendant's conduct, the prenuptial agreement purporting to waive his rights to seek an assignment of property from the defendant is not enforceable. Relying on the McHugh factors, he maintains that, where the marriage has broken down on grounds other than irretrievable differences, a prenuptial agreement should not be enforceable against the innocent party to prevent a court from awarding alimony or some assets of either party under General Statutes §§ CT Page 7317 46b-81 (assignment of property) and 46b-82 (alimony). In addition, the plaintiff asserts that the statutory factors of the act include "unconscionability" requiring the court to take into consideration equitable principles of fairness and justice. The plaintiff contends that "allowing the agreement to shield the defendant from her blatant and continued marital misconduct offends generally accepted standards of morality and marital fidelity" rendering the agreement unconscionable at this time.
The defendant responds that even if the plaintiff were to prove his allegations of "fault," the prenuptial agreement would still be enforceable based on the statutory factors in § 46b-36g.
She further argues that there are no Connecticut decisions in which fault has been a determining factor as to the validity of the agreement.
A thorough discussion of the issue of unconscionability at the time when enforcement is sought can be found in Dornemann v. Dornemann, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 03 0194829 (August 13, 2004, Winslow, J.) ( 37 Conn. L. Rptr. 771 ( Dornemann II). Therein, the court first examined whether the agreement was "unconscionable" when the parties executed it and then whether it was "unconscionable" at the time of enforcement. Noting that the act specifically addresses the possibility of unconscionability at the time of enforcement in § 46b-36g(a)(2), the court relied on the common law in McHugh in determining the meaning of it at that junction. Dornemann II, supra, 37 Conn. L. Rptr. 777. "Without using the word `unconscionable,' the McHugh case requires a look at whether `the circumstances of the parties at the time of the dissolution are so far beyond the contemplation of the parties at the time the agreement was made as to make enforcement of the agreement work an injustice.' McHugh v. McHugh, supra, 181 Conn. 489. Our Supreme Court has, thus, provided the working definition for unconscionability at the time of enforcement." Dornemann II, supra, 37 Conn. L. Rptr. 777-78.
"Although the McHugh decision does not specifically use the word `unconscionability' in considering the present enforceability of a premarital contract, the written testimony of the Family Law Section shows that the drafters of the act equated the test for unconscionability at the time of enforcement with the standard enunciated in McHugh. The Family Law Section wrote: ` McHugh speaks of a test of conscionability (fairness) at the time of enforcement but leaves uncertain whether this test also applies to spousal support provisions as well as property provisions.' Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7, 1995 Sess., p. 2493. `[T]estimony before legislative committees may be considered in determining the particular problem or issue that the legislature sought to address by the legislation . . . This is because legislation is a purposive act . . . and, therefore, identifying the particular problem that the legislature sought to resolve helps to identify the purpose or purposes for which the legislature used the language in question.'" (Citations omitted; internal quotation marks omitted). Dowling v. Slotnik, 244 Conn. 781, 804, 712 A.2d 396 (1998), cert. denied sub nom., Slotnik v. Considine, 525 U.S. 1017, 119 S.Ct. 542, 142 L.Ed. 2d 451 (1998)." Dornemann II, supra, 37 Conn. L. Rptr. 778.
In addition on May 23, 1995 in the House of Representatives, the legislatures discussed how to apply the term "unconscionability" to the act. Representative Radcliffe stated: "[W]e talk about unconscionablility being a premarital agreement to be a matter of law to be decided by the court. Are there any standards contained in this bill which are not contained in the standards that we currently use for unconscionability? I mean would a court have to look to this bill or would the court look to existing law on unconscionability?" To which Representative Scalettar answered: "This would incorporate existing law. It does not set any new standards for unconscionability." He then further clarified that "[U]nder Section 6, No 2, [it] specifically states that unconscionability is one of the factors that can cause unenforceability of the contract." Representative Radcliffe next inquired: "The only issue that would be removed from the consideration of a jury in terms of this contract would be the issue of unconscionability. All of these other issues . . . within Section 6 would all be questions of fact to be determined by the trier of fact and not exclusively by the court. Is that correct?" To which Representative Scalettar responded: "That is correct." 38 H.R Proc., Pt. 9, 1995 Sess., p. 3219-20.
"Premarital agreements are not necessarily made in advance of marriage in order to be fair to each party in the event of divorce. The act imposes no requirement of fairness of the bargain. To the contrary, the act permits the parties to bypass consideration of the usual criteria by which a court would determine fairness. At § 46b-36d(a)(4), for example, the act specifically allows the elimination of spousal support, superseding the provisions of General Statutes § 46b-82. The act permits parties to bind themselves by contract to a disposition of property, life insurance and retirement assets upon divorce. [General Statutes] § 46b-36d(a)(3), (6), (7). The parties may thus override the court's consideration of General Statutes § 46b-81 for division of property at the time of divorce in accordance with the criteria set forth in that statute. `In this regard, it is necessary to distinguish between the violation of statute and the informed and voluntary waiver of rights created by statute. The former is prohibited while the latter is typically the object of such agreements.' McHugh v. McHugh, supra, 181 Conn. 488." Dornemann II, supra, 37 Conn. L. Rptr. 778.
In Dornemann II, supra, 37 Conn. L. Rptr. 778, the court adopted as the standard for unconscionability the criterion set forth in McHugh when enforcement is sought stating that "the facts of this case must be examined to determine whether the circumstances of the parties at the time of the dissolution are so far beyond the contemplation of the parties at the time the agreement was made as to make enforcement of the agreement work an injustice." The court concluded that the plaintiff did not meet her "burden of proving unconscionability of the premarital agreement when enforcement is sought." Dornemann II, supra, 37 Conn. L. Rptr. 779. The court explained that "[t]he plaintiff was aware of the disparity in the parties' assets when she made the agreement. The assets of the parties were vastly different at the outset of the marriage; they are vastly different now. Primary blame has not been assessed against either side for the breakdown of this relatively short marriage. It is not even necessary to go to the next level to determine if changed circumstances are so far beyond the initial contemplation of the parties as to work an injustice at the time of enforcement. There are no circumstances now existing that were beyond the contemplation of the parties at the time the premarital agreement was executed. Even if the enforcement of a contract seems unduly to burden one of the parties, the court will not depart from basic principles of contract law to revise and improve the contract." Id.
In Knise v. Knise, Superior Court, judicial district of Fairfield, Docket No. FA 07 4020295 (February 5, 2008, Owens, J.T.R.), the court relied on the reasoning in Dornemann II to uphold the enforcement of the agreement. The court stated: "The wife sought by the agreement to protect a potential inheritance from her father. She knowingly, with the assistance of able counsel, made an agreement waiving the right to alimony. She cannot now complain that the agreement is `unconscionable.' It simply is not. The agreement shall be enforced and no alimony shall be awarded to either party." The court further noted that even though "fault for the breakdown of the marriage [laid] primarily with the husband," this did not change the validity of the agreement. Id.
As to the plaintiff's argument that fault vitiates the enforcement of the premarital agreement, he relies on Leavy v. Cook, 171 Mo. 292, 71 S.W. 182 (1902) and Veeder v. Veeder, 195 Iowa 587, 192 N.W. 402 (1923). He also acknowledges that there is one case to the contrary, Malloy v. Malloy, 362 So.2d 484 (Fla.App. 1978).
In the more recent case of Malloy v. Malloy, 362 So.2d 484 (1978), the court held that the fact that the wife admitted that she committed adultery did not invalidate an antenuptial agreement. Explaining that the intent of the parties at the time of the execution of the agreement was to be considered, the court said that the parties executed an agreement which specifically provided for the possibility of a future dissolution. Id., 485. The court further said that it was obvious that some misconduct on the part of one or both of the parties was a factual possibility contemplated at that time. Id. Rejecting a claim that the wife's misconduct constituted a breach of the marital covenants sufficient to destroy the underlying consideration for the antenuptial agreement, the court reasoned that if such were the case, antenuptial agreements providing for the contingency of future dissolution would fail when the dissolution materialized. Id. Deeming it difficult to imagine circumstances which would provide the impetus for a dissolution where there was absolutely no breach of the duties and obligations of the marital covenants by either party, the court stated that to invalidate the agreement on such ground would undermine the very purpose of the dissolution provision of the agreement. Id. The court explained that had the husband intended for the wife's subsequent misconduct to extinguish the mutual promises in the agreement, he should have made this requirement clear in the agreement. Id. The court added that there was no evidence of gross marital misconduct which could have been beyond the contemplation of the parties at the time they entered into the agreement. Id.
In Leavy, the court noted that a statute existed which provided that, in case of divorce, the guilty party should forfeit all rights and claims under and by virtue of the marriage. As per that statute, the court held that the antenuptial agreement could be voided based on claims that shortly after her marriage, the wife committed adultery, abandoned and refused to return to her husband, and never lived with him thereafter. Subsequently, the husband was able to obtain a decree of divorce from her on the ground of desertion. Leavy v. Cook, supra. In Veeder, the court ruled that an antenuptial contract, whereby a wife was to receive on her husband's death one-sixth of his real property in place of all claims in his estate, could not be enforced by the wife where she abandoned the husband, despite a claim that she left him because of his cruel and inhuman treatment of her. Veeder v. Veeder, supra.
The plaintiff also points out that in four cases which have upheld antenuptial agreements, the ground for dissolution has been the irretrievable breakdown of the marriage and not one of fault. See, e.g., Friezo v. Friezo, 281 Conn. 166, 914 A.2d 533 (2007) (agreement enforced due to failure of proof as to lack of adequate financial disclosure and of knowingly and voluntarily having executed the agreement); Crews v. Crews, 107 Conn.App. 279, 945 A.2d 502 (2008), aff'd, 295 Conn. 153 (2010) (agreement enforced due to insufficient evidence as to contemplated changes in economic circumstances between time of execution of agreement and time of dissolution); Winchester v. McCue, 91 Conn.App. 721, 882 A.2d 143, cert. denied, 276 Conn. 922, 888 A.2d 91 (2005) (agreement enforced due to insufficient evidence to determine whether there was a material breach of the agreement, but agreement not unconscionable based on current financial situation); Montoya v. Montoya, 91 Conn.App. 407, 881 A.2d 319 (2005), rev'd in part, 280 Conn. 605, 909 A.2d 947 (2006) (trial court improperly applied the terms of the prenuptial agreement due to its reliance on the fact that the defendant's attorney drafted the agreement, which was in violation of the express language therein; thereby, infecting the entire decision with respect to the financial orders).
Since premarital agreements are no longer against public policy, it is reasonable to conclude that neither of these two cases would be followed by the Connecticut courts today. In addition, "[t]he legislative history confirms that the purpose of the act is to recognize the legitimacy of premarital contracts in Connecticut, not to constrain such contracts to a rigid format so as to limit their applicability." Dornemann I, supra, 48 Conn.Sup. 519-20.
Research has revealed no Connecticut cases dealing directly with the issue of fault and premarital agreements. Out-of-state cases that have dealt with the issue of marital misconduct to avoid the enforcement of premarital agreements have reasoned that these agreements are enforceable unless the parties expressly include a provision in the agreement that such fault would extinguish the terms of the agreement. In other words, these agreements would be found to be valid as long as the other provisions were also valid. See Hubbard v. Bentley, 17 So.3d 652 (Ala.Civ.App. 2008), Gross v. Gross, 11 Ohio St.3d 99, 464 N.E.2d 500 (1984).
The agreement at issue in the present case was executed on August 23, 2001, it is governed by the premarital agreement act. This places the burden on the plaintiff to demonstrate to the court how the agreement pursuant to § 46b-36g(a)(2) is unconscionable to avoid enforcing it at this time. First, neither the plaintiff nor the defendant are arguing that when the agreement was executed it was not fair and equitable and entered into upon full disclosure without fraud, overreaching or duress. Next, there is no evidence to support a finding that the enforcement of the agreement would render the plaintiff without means of reasonable support or sustenance. Further, the parties executed this agreement knowing that it specifically provided for the possibility of a future dissolution. Thus, it is reasonable to infer that, at the time they entered into their agreement, they contemplated some form of marital discord and/or misconduct. If marital misconduct or discord were to constitute a breach of the marital covenants sufficient to destroy the underlying consideration for the agreement, then it is probable that all antenuptial agreements would fail when the dissolution materialized and undermine the very purpose of these agreements. Either party could have included a specific provision within the agreement to extinguish the mutual promises contained therein or to permit the party not at fault to enforce the provisions. The court finds that the agreement is not unconscionable, and the terms of the agreement should be enforced.