Grabe v. Hokin ( 2022 )

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LAURA GRABE v. JUSTIN HOKIN
(SC 20432)
Robinson, C. J., and McDonald, D’Auria,
Kahn, Ecker and Keller, Js.
Syllabus
The plaintiff sought to dissolve her marriage to the defendant and to enforce
a nuptial agreement that the parties had executed shorty before their mar-
riage. The prenuptial agreement provided that, in the event of dissolu-
tion, the parties agreed to waive any claim to each other’s separate
property or to support from the other. The agreement also provided
that a party who unsuccessfully challenged its enforceability would pay
the attorney’s fees of the other party and contained a severability clause
providing that, if any provision or provisions in the agreement were
found to be unenforceable, the remainder of the agreement would con-
tinue in full force and effect. The defendant filed a cross complaint,
claiming that enforcement of the agreement would be unconscionable
in light of certain, uncontemplated events during the marriage, including
the birth of the parties’ three children, the destruction of the defendant’s
house by fire, the destruction of a yacht club, in which the defendant
had an indirect ownership interest, due to a natural disaster, and the
failure of a business from which the defendant derived his primary
source of income. The trial court found that, although these events were
not contemplated, they did not render enforcement of the agreement
unconscionable. The court found, however, that enforcement of the
attorney’s fees provision would be unconscionable insofar as it would
financially cripple the defendant. The trial court rendered judgment
dissolving the parties’ marriage, striking the attorney’s fees provision
from the prenuptial agreement and concluding that the remainder of
the agreement was enforceable. The defendant appealed, claiming that
the trial court incorrectly determined that the occurrence of the uncon-
templated events during the parties’ marriage did not render enforce-
ment of the agreement unconscionable at the time of dissolution. Held
that the trial court correctly determined that enforcement of the parties’
prenuptial agreement was not unconscionable in light of all of the rele-
vant facts and circumstances: the fact that events arose during the
marriage that were beyond the parties’ initial contemplation did not
establish that enforcement of the prenuptial agreement would be uncon-
scionable, and, although the defendant claimed that the children were
entitled to continue the lifestyle to which they were accustomed before
the dissolution, the children were being supported by the plaintiff at
the same standard of living they enjoyed before the dissolution, the
defendant conceded that, as a noncustodial parent, he was not entitled
to child support, and there was nothing in this state’s statutes or case
law to suggest that public policy required that a noncustodial parent
receive postdissolution support for the sole purpose of ensuring that
he or she has the ability to provide for the children of the marriage in
the same manner as the custodial parent, as a regulation (§ 46b-215a-
5c (b) (6) (B)) setting forth the criteria for deviating from this state’s
child support guidelines expressly contemplates that, after dissolution,
parents may have an extraordinary disparity in income; moreover, the
defendant had significant assets at the time of the dissolution, nothing
in the record supported the conclusion that he was incapable of earning
an income, it was not unreasonable to expect the defendant to obtain
employment to replace the income that he lost from the failed business,
and there was no evidence that the defendant gave up any income
earning opportunities as a result of his marriage or the births of the
children, or that he made significant contributions to family life, for
which it would be unfair not to compensate him; furthermore, it was
not inconsistent for the trial court to conclude that it would be uncon-
scionable to enforce the attorney’s fees provision in the agreement on
the ground that enforcement of that provision would financially cripple
the defendant while also finding the remainder of the agreement enforce-
able, as the agreement’s severability clause contemplated the possibility
of enforcement of certain provisions in the agreement but not others.
Argued May 3—officially released November 17, 2021*
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the defendant filed a
cross complaint; thereafter, the case was referred to
the Regional Family Trial Docket at Middletown and
tried to the court, Diana, J.; judgment dissolving the
marriage and granting certain other relief, from which
the defendant appealed. Affirmed.
Scott T. Garosshen, with whom were Kenneth J.
Bartschi and, on the brief, Michael T. Meehan, for the
appellant (defendant).
Charles D. Ray, with whom were Angela M. Healey,
David W. Griffin and, on the brief, Dyan M. Kozaczka,
for the appellee (plaintiff).
Opinion
KAHN, J. The issue before us in this appeal is whether
the trial court correctly determined that the enforce-
ment of a prenuptial agreement executed by the plain-
tiff, Laura Grabe, and the defendant, Justin Hokin, was
not unconscionable at the time of the dissolution of
their marriage. Shortly before the parties’ marriage in
2010, they executed a prenuptial agreement in which
each party agreed, in the event of a dissolution action,
to waive any claim to the other’s separate property, as
defined in the agreement, or to any form of support
from the other, including alimony. The agreement also
provided that a party who unsuccessfully challenged
the enforceability of the agreement would pay the attor-
ney’s fees of the other party. In 2016, the plaintiff
brought this action seeking dissolution of the marriage
and enforcement of the prenuptial agreement. The
defendant filed a cross complaint in which he claimed,
inter alia, that the agreement was unenforceable
because it was unconscionable at the time of the disso-
lution under General Statutes § 46b-36g (a) (2).1 After
a trial to the court, the court concluded that, with the
exception of the attorney’s fees provision, enforcement
of the terms of the prenuptial agreement that the parties
entered into was not unconscionable, even in light of
certain events that had occurred during the marriage.
Accordingly, the trial court rendered judgment dissolv-
ing the marriage and enforcing the terms of the prenup-
tial agreement, with the exception of the provision
requiring the party who unsuccessfully challenged the
enforceability of the agreement to pay the attorney’s
fees of the other party. On appeal,2 the defendant con-
tends that the trial court incorrectly determined that
the occurrence of the unforeseen events found by the
trial court did not render the enforcement of the entire
agreement unconscionable at the time of the dissolu-
tion. We affirm the judgment of the trial court.
The record reveals the following facts that were
found by the trial court or that are undisputed. Shortly
before the parties’ marriage on October 2, 2010, they
entered into a prenuptial agreement. The agreement
provided that it would be ‘‘governed and construed in
accordance with the Connecticut Premarital Agreement
Act, [General Statutes] § 46b-36a et seq. . . .’’ Under
the agreement, each party waived any claim to the prop-
erty of the other during the marriage. In the event of
a marital dissolution, each party agreed to waive ‘‘all
claims and rights to any equitable distribution of [s]epa-
rate [p]roperty [of the other party, as defined in the
agreement],’’ and to ‘‘any claim for temporary or perma-
nent maintenance, support, alimony, [attorney’s] fees
(including [pendente] lite [attorney’s] fees) or any simi-
lar claim . . . .’’ In addition, each party agreed that, if
either party ‘‘unsuccessfully seeks to invalidate all or
any portion of [the] [a]greement or seeks to recover
alimony (other than pendente lite [attorney’s] fees) or
property in a manner which deviates from the terms of
[the] [a]greement, then the prevailing party shall be
entitled to recover all reasonable and necessary [attor-
ney’s] fees and other costs incurred in successfully
defending his or her rights under [the] [a]greement.’’
The agreement also contained a severability provision
stating that, ‘‘[i]n case any provision of [the] [a]gree-
ment should be held to be invalid, such invalidity shall
not affect, in any way, any of the other provisions
herein, all of which shall continue in full force and
effect, in any country, state or jurisdiction in which
such provisions are legal and valid.’’ In addition, the
agreement provided that ‘‘[n]o change in circumstances
of the parties shall render [the] [a]greement unconscio-
nable if enforcement hereof is sought at any time in
the future.’’
At the time that the parties executed the prenuptial
agreement, the plaintiff’s annual income was $1,312,225,
and her net worth was $12,319,380. The defendant’s
estate had a fair market value of $5,150,295,3 and he
disclosed income of $97,719.06 over the previous six
months. The primary sources of the defendant’s income
were a director’s fee of approximately $60,000 per year
from an entity known as Intermountain Industries and
guaranteed payments ranging from $80,000 to $100,00
per year from an entity known as 4H, LLC Family Part-
nership (4H, LLC).4 The defendant received no other
income from employment.
Before their marriage, both the plaintiff and the
defendant would frequently stay out all night socializing
and drinking with friends. The plaintiff changed her
behavior when she became pregnant shortly after the
marriage, but the defendant did not. After the parties’
oldest daughter was born in late 2011, the defendant
continued to neglect his responsibilities to his family.
For example, ten months after his daughter’s birth, the
defendant left the plaintiff at home alone with her while
Hurricane Sandy struck their neighborhood, and the
plaintiff was forced to seek shelter at her parents’ home.
After the parties’ second daughter was born in 2013,
the defendant’s family planned an intervention for him,
as his drinking was out of control and he was being com-
pletely unproductive. The intervention never occurred,
and the defendant continued to stay out all night, sleep
most of the day and ignore the needs of his wife and
children.
In August, 2014, the plaintiff contacted a divorce law-
yer. Two weeks later, the house in Norwalk where the
parties resided, which the defendant owned, was com-
pletely destroyed by a fire. The parties then leased
another residence in Norwalk. In November, 2014, the
plaintiff filed an action for the dissolution of the mar-
riage, but she later withdrew it. In 2015, the parties’
third daughter was born.
During this period, the plaintiff started building a
house in the Rowayton neighborhood of Norwalk. In
March, 2016, the plaintiff separated from the defendant
and moved into the Rowayton house with their three
young daughters. Several weeks later, she filed this
action seeking the dissolution of the marriage and
enforcement of the prenuptial agreement. In February,
2017, the defendant filed an amended answer and cross
complaint, alleging, inter alia, that the prenuptial agree-
ment was unenforceable under § 46b-36g (a) (2)
because it was unconscionable when enforcement was
sought.5
Thereafter, in September, 2017, a yacht club in the
Caribbean known as the Bitter End Yacht Club (Yacht
Club), which was owned by the defendant’s family and
in which the defendant had an indirect, fractional own-
ership interest, was destroyed by Hurricane Irma. Also
in 2017, Intermountain Industries failed due to a down-
turn in the price of crude oil. As a result, it no longer
paid the defendant a director’s fee, and its guaranteed
payments to 4H, LLC were discontinued.
Evidence presented at trial showed that, since the
execution of the prenuptial agreement, the defendant’s
assets had decreased in value from $5,150,295 to $2.1
million. A note on the defendant’s financial affidavit
dated February 11, 2019, which was introduced as an
exhibit at trial, indicated that $1,845,000 of these assets
were held in the Justin Hokin Grantor Trust, represent-
ing the trust’s ownership interests in other assets, ‘‘pri-
marily [4H, LLC],’’ and that ‘‘[t]he most significant asset
in [4H, LLC], is [the Yacht Club], which was destroyed
by Hurricane Irma in the summer of 2017.’’ The note
also indicated that the trust was ‘‘wholly illiquid’’ and
that its value was not ‘‘accessible’’ to the defendant.
The defendant had liabilities of $1,351,262, more than
$1 million of which was debt owed to his father and to
4H, LLC, for ‘‘legal fees . . . .’’ The affidavit showed
that the defendant had no significant income.6
The defendant contended in his posttrial brief to the
trial court that the births of the parties’ three children,
the destruction of his house by fire, the destruction of
the Yacht Club by Hurricane Irma and the failure of
Intermountain Industries were not contemplated when
the prenuptial agreement was signed and that enforce-
ment of the agreement would be unconscionable in light
of these unforeseen events. Accordingly, the defendant
requested that the trial court not enforce the agreement
and, instead, order a property division ‘‘[that] . . .
would permit the defendant to purchase a home in close
proximity [to the plaintiff’s home] to provide the minor
children a comparable quality of life between both par-
ent households.’’
The plaintiff contended before the trial court that, to
the contrary, the events cited by the defendant were
not beyond the contemplation of the parties when they
executed the prenuptial agreement. She also referred to
evidence presented at trial that would support findings
that, after the defendant received insurance proceeds
for the destruction of his house, paid off two mortgages
on the house and sold the land, he retained net proceeds
of $775,587.73, as compared with equity of $20,309.58
at the time that the prenuptial agreement was executed;
the value of the Yacht Club property on December
31,2017, was $14,900,000, $3,000,000 more than its value
on the date that the prenuptial agreement was executed;
and the defendant’s family was responsible for the fail-
ure of Intermountain Industries. Accordingly, the plain-
tiff argued that, even if the events were not contem-
plated, it would not be unconscionable to enforce the
prenuptial agreement, in part because it would be unfair
to require the plaintiff bear the burden of the defen-
dant’s neglectful and unproductive behavior.
In its memorandum of decision, the trial court found
that, at the time of trial, the plaintiff was forty-one years
old and in good health. She had a bachelor’s degree in
journalism and was two credits short of receiving her
master’s degree in science from New York University.
She had a net weekly income of $34,284,7 and the fair
market value of her assets was $27.4 million. The defen-
dant was forty-four years old and in good health. He had
a bachelor’s degree in geography from the University
of Montana. He had no significant income8 and his
assets had a fair market value of $2.1 million.9
The trial court determined that the defendant was at
fault for the breakdown of the marriage. The court
observed that, after the parties’ three children were
born, ‘‘the defendant continued to live a life full of
drinking and partying. Instead of trying to provide for
the plaintiff and their young children, the defendant
remained stagnant and engulfed in a selfish mentality
until he lost his footing in his business and his mar-
riage.’’ The marriage ‘‘suffered as the defendant slept
most of the day, stayed out all night, and did not make
the plaintiff or the children even a remote priority in
his life.’’
The trial court further found that, at the time that
they entered into the prenuptial agreement, the parties
had not contemplated that they would have three chil-
dren, the defendant’s house would be destroyed by fire,
the Yacht Club would be destroyed by a hurricane and
that Intermountain Industries would fail, depriving the
defendant of his primary source of income.10 Although
the court concluded that these events were not specifi-
cally contemplated by the parties when they entered
into the agreement, it determined that they were not
events that would render enforcement of the terms of
the agreement unconscionable.
When it came to the enforcement of the attorney’s
fees provision, however, the trial court concluded that,
under the circumstances existing at the time of trial,
enforcement of that provision would be unconsciona-
ble. The court observed that the plaintiff ‘‘has great
financial wealth and [was] not incapable of paying for
her own attorney’s fees.’’ In addition, the court found
it ‘‘unlikely that the parties considered paying millions
of dollars in attorney’s fees to the other party in the
event of a marital dissolution’’ and that the enforcement
of the attorney’s fees provision ‘‘would financially crip-
ple the defendant’s remaining assets . . . .’’11 In light
of these findings, the court concluded that, ‘‘while the
totality of the agreement is not unconscionable, [the
provision requiring a party who unsuccessfully chal-
lenges the prenuptial agreement to pay the attorney’s
fees of the other party] is unconscionable and should
be stricken from the antenuptial agreement. The
remainder of the parties’ antenuptial agreement shall be
enforced . . . .’’ Accordingly, the trial court rendered
judgment dissolving the parties’ marriage, striking the
attorney’s fees provision from the prenuptial agreement
and, consistent with the severability provision of the
agreement, concluding that the remainder of the agree-
ment was enforceable. The court also incorporated the
final parenting plan into the judgment, pursuant to
which the children were to reside primarily with the
plaintiff but would spend time with defendant pursuant
to a regular visitation schedule. In addition, the parties
stipulated that the defendant would pay weekly child
support in the amount of $57, in accordance with the
child support guidelines. Thus, although the parties had
joint legal custody of the children, the plaintiff was to
have primary physical custody.
This appeal followed.12 On appeal, the defendant con-
tends that the trial court incorrectly determined that it
would not be unconscionable to enforce the prenuptial
agreement when it found that the parties did not initially
contemplate that the defendant would be helping to
raise three young children at a time when he had no
income and greatly diminished assets.13 The plaintiff
contends that, even if the parties did not initially con-
template these events, the trial court correctly deter-
mined that they were not so far beyond their contempla-
tion as to render the enforcement of the agreement
unconscionable.14 We agree with the plaintiff.
We begin our analysis with the standard of review.
Pursuant to § 46b-36g (a), ‘‘[a] premarital agreement
. . . shall not be enforceable if the party against whom
enforcement is sought proves that . . . (2) [t]he agree-
ment was unconscionable when it was executed or
when enforcement is sought . . . .’’ Whether the pre-
nuptial agreement is enforceable is a mixed question
of fact and law. See Friezo v. Friezo, 281 Conn. 166,
180–81, 914 A.2d 533 (2007), overruled in part on other
grounds by Bedrick v. Bedrick, 300 Conn. 691, 17 A.3d
17 (2011). Although the underlying historical facts
found by the trial court may not be disturbed unless
they are clearly erroneous; see Kovalsick v. Kovalsick,
125 Conn. App. 265, 270–71, 7 A.3d 924 (2010); whether
a prenuptial agreement is unconscionable in light of
those facts, if not clearly erroneous, is a question of
law subject to plenary review. See Crews v. Crews,
295 Conn. 153, 163–64, 989 A.2d 1060 (2010); see also
General Statutes § 46b-36g (c) (‘‘[a]n issue of unconscio-
nability of a premarital agreement shall be decided by
the court as a matter of law’’).
‘‘Unconscionable is a word that defies lawyer-like
definition. . . . The classic definition of an unconscio-
nable contract is one which no [individual] in his senses,
not under delusion, would make, on the one hand, and
which no fair and honest [individual] would accept, on
the other.’’ (Internal quotation marks omitted.) Beyor
v. Beyor, 158 Conn. App. 752, 758, 121 A.3d 734, cert.
denied, 319 Conn. 933, 125 A.3d 206 (2015).
We have previously recognized that § 46b-36g was
intended to endorse, clarify and codify the standards
set forth in this court’s decision in McHugh v. McHugh,
181 Conn. 482, 436 A.2d 8 (1980). See, e.g., Friezo v.
Friezo, supra, 281 Conn. 185–86 n.23. In McHugh, this
court held that ‘‘an antenuptial agreement will not be
enforced where the circumstances of the parties at the
time of the dissolution are so far beyond the contempla-
tion of the parties at the time the agreement was made
as to make enforcement of the agreement work an
injustice. . . . Thus, where a marriage is dissolved not
because it has broken down irretrievably, but because
of the fault of one of the parties, an antenuptial waiver
of rights executed by the innocent party may not be
enforceable, depending [on] the circumstances of the
particular case and the language of the agreement. . . .
Likewise, where the economic status of [the] parties
has changed dramatically between the date of the agree-
ment and the dissolution, literal enforcement of the
agreement may work injustice.’’ (Citations omitted.)
McHugh v. McHugh, supra, 489. Other unforeseen
changes that may, depending on the circumstances,
render a prenuptial agreement unenforceable include
the birth of a child, loss of employment or a move to
another state. Bedrick v. Bedrick, supra, 300 Conn. 706.
‘‘Absent such unusual circumstances, however, ante-
nuptial agreements freely and fairly entered into will
be honored and enforced by the courts as written.’’
McHugh v. McHugh, supra, 181 Conn. 489. ‘‘Unfairness
or inequality alone does not render a [prenuptial] agree-
ment unconscionable;15 spouses may agree on an
unequal distribution of assets at dissolution. [T]he mere
fact that hindsight may indicate the provisions of the
agreement were improvident does not render the agree-
ment unconscionable. . . . Instead, the question of
whether enforcement of an agreement would be uncon-
scionable is analogous to determining whether enforce-
ment of an agreement would work an injustice. . . .
Marriage, by its very nature, is subject to unforeseeable
developments, and no agreement can possibly antici-
pate all future events.’’ (Citations omitted; footnote
added; internal quotation marks omitted.) Bedrick v.
Bedrick, supra, 300 Conn. 705–706. Indeed, if every
event that the parties did not anticipate could provide
a basis for invalidating a prenuptial agreement, no such
agreement would be enforceable. Thus, ‘‘the party seek-
ing to challenge the enforceability of the antenuptial
contract bears a heavy burden.’’ Crews v. Crews, supra,295 Conn. 169; see id., 170 (‘‘proving uncontemplated,
dramatically changed circumstances requires a signifi-
cant showing’’); see also id. (‘‘McHugh requires an
extraordinary change in economic status and . . . the
threshold for finding such a dramatic change is high’’
(internal quotation marks omitted)).
In the present case, we assume without deciding that
the trial court correctly found that the parties did not
contemplate the births of their three children, the
destruction of the defendant’s house by fire, the destruc-
tion of the Yacht Club by a hurricane or the failure of
Intermountain Industries when they entered into the
prenuptial agreement.16 We further assume that the
resulting diminishment in the value of the defendant’s
assets and his loss of income from Intermountain Indus-
tries also were not contemplated. As we explained,
however, it is clear under our case law that, standing
alone, the fact that existing circumstances were beyond
the parties’ initial contemplation does not establish that
enforcement of a prenuptial agreement would be uncon-
scionable. Rather, we must determine whether these
circumstances were ‘‘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;
see also Crews v. Crews, supra, 295 Conn. 168 (if court
determines that circumstances at time of dissolution
were beyond parties’ initial contemplation, court must
then determine ‘‘whether enforcement would cause an
injustice’’). In making this determination, we must con-
sider all of the relevant facts and circumstances. See,
e.g., Crews v. Crews, supra, 163.
We first address the defendant’s contention that the
trial court improperly failed to recognize that enforce-
ment of the prenuptial agreement would be unconscio-
nable in light of the uncontemplated births of the par-
ties’ children and his loss of assets and income because
the ‘‘children are entitled to continue the lifestyle to
which [they were] accustomed and the standard of liv-
ing [they] enjoyed before the divorce . . . .’’17 (Internal
quotation marks omitted.) Hornung v. Hornung, 323
Conn. 144, 162, 146 A.3d 912 (2016). We are not per-
suaded. There is no question in the present case that
the children are being supported by the plaintiff at the
same standard of living that they enjoyed before the
dissolution. As far as the record reveals, they continue
to live in the same house, to sleep there most nights,
to attend the same schools, to receive the same level
of health care and to enjoy the same food, clothing,
vacations, entertainment and the like as they did before
the marital dissolution. Thus, it is difficult to perceive
the relevance of Hornung in the present case. Contrary
to the defendant’s suggestion, the fact that a child
spends a limited amount of time with a noncustodial
parent who has a somewhat lower standard of living
than the child does not, ipso facto, mean that the child’s
standard of living is reduced. See Maturo v. Maturo,
296 Conn. 80, 108, 995 A.2d 1 (2010). Moreover, the
defendant concedes that, as a noncustodial parent, he
would not be entitled to a child support award under
any circumstances. As we stated in Tomlinson v. Tom-
linson, 305 Conn. 539, 46 A.3d 112 (2012), ‘‘the legisla-
ture viewed the provision of custody as the premise
underlying the receipt of child support payments; the
legislature did not envision that the custodian would
be required to pay child support to a person who does
not have custody, as well as (in cases in which the
obligor obtains custody) expend resources to provide
directly for the care and welfare of the child. In fact,
under the Child Support and Arrearage Guidelines . . .
child support award is defined as the entire payment
obligation of the noncustodial parent . . . .’’18 (Empha-
sis in original; internal quotation marks omitted.) Id.,
554.
The defendant also appears to claim that, for the sake
of the children, he is entitled to enjoy his predissolution
standard of living because an ‘‘extraordinary disparity
in parental income may hinder [the] lower income [non-
custodial] parent’s ability to foster a relationship with
the child . . . .’’ (Internal quotation marks omitted.)
See Maturo v. Maturo, supra, 296 Conn. 101. Again, we
are not persuaded. This court recognized in Maturo
that, when there is an ‘‘extraordinary disparity’’ in
parental income, the court may depart from the child
support guidelines when the custodial parent has the
higher income and deviation from the presumptive sup-
port amount ‘‘would enhance the lower income [non-
custodial] parent’s ability to foster a relationship with
the child . . . .’’ (Internal quotation marks omitted.)
Id.; see also Regs., Conn. State Agencies § 46b-215a-
5c (b) (6) (B) (when there is extraordinary disparity
between parents’ net incomes, court may deviate from
presumptive support amounts if deviation would ‘‘enhance
the lower income parent’s ability to foster a relationship
with the child’’ and ‘‘sufficient funds remain for the
parent receiving support to meet the basic needs of the
child after deviation’’). In other words, Maturo recog-
nized that a lower income noncustodial parent may be
permitted to pay less than the presumptive child sup-
port amount to a higher income custodial parent if there
is an extraordinary disparity in their incomes and the
other conditions of the regulation are met—relief that
the defendant in the present case did not seek. Thus,
although § 46b-215a-5c (b) (6) (B) admittedly was
intended to address the problems that may arise when
divorced parents have disparate incomes and standards
of living, the remedy that it provides is quite limited.
Maturo does not suggest that a lower income noncusto-
dial parent has any right under the regulation to receive
child support from a higher income custodial parent for
the purpose of enhancing the ability of the noncustodial
parent to ‘‘foster a relationship’’ with a child who shares
the custodial parent’s higher standard of living. Cf.
Zheng v. Xia, 204 Conn. App. 302, 312, 253 A.3d 69(2021) (under Maturo, trial court improperly ordered
parent with higher income to pay supplemental, lump
sum child support to custodial parent with no income
other than child support on basis of ‘‘significant dispar-
ity’’ in parties’ income). In Maturo, the court recognized
that, ‘‘[w]hen a parent has an ability to pay a large
amount of support, the determination of a child’s needs
can be generous, but all any parent should be required
to pay, regardless of his or her ability, is a fair share
of the amount actually necessary to maintain the child
in a reasonable standard of living. Court-ordered sup-
port that is more than reasonably needed for the child
becomes, in fact, [tax free] alimony.’’ Maturo v. Maturo,
supra, 105–106. (Emphasis altered; internal quotation
marks omitted.) Indeed, as we have already explained,
a noncustodial parent is not entitled to a child support
award under any circumstances. See Tomlinson v.
Tomlinson, supra, 305 Conn. 554.
The defendant contends that the fact that a noncusto-
dial parent cannot receive child support supports his
argument that the prenuptial agreement is unconsciona-
ble because it demonstrates that, if the agreement is
enforced, the trial court will be ‘‘without the tools to
account properly for the best interests of [the] children,
putting both the noncustodial parent and them in an
untenable place.’’ (Emphasis added.) Thus, the defen-
dant appears to suggest that, in the absence of the
prenuptial agreement, the trial court would be author-
ized to award alimony or a property distribution to him
for the purpose of ensuring that he can provide for the
children in the same manner as the plaintiff. This court
has held, however, that it is improper to disguise a child
support award as alimony, and that alimony should be
used only to address the needs of the recipient parent.19
See Loughlin v. Loughlin, 280 Conn. 632, 655, 910 A.2d
963 (2006). Moreover, we observed in Tomlinson v.
Tomlinson, supra, 305 Conn. 555, that ‘‘permitting the
diversion of funds away from the [custodial] parent
[who is] providing for the care and well-being of minor
children . . . would contravene the purpose of child
support.’’ Although we were referring in Tomlinson to
a situation in which a former noncustodial parent takes
custody of the children and becomes responsible for
supporting them but continues to pay child support to
the former custodial parent; see id., 541–42; the same
principle would hold true whenever a custodial parent
is required to pay any form of support to a noncustodial
parent based on the fiction that the payment is for the
support of the children.20
In short, we see nothing in our statutes or case law
to suggest that it is the public policy of this state that
a noncustodial parent is entitled to receive any form of
postdissolution support for the sole purpose of ensuring
that he or she has the ability to provide for the children
of the marriage in the same manner as the custodial
parent.21 Indeed, § 46b-215a-5c (b) (6) (B) of the regula-
tions expressly contemplates that, after a marital disso-
lution, the parents of a child may have an ‘‘[e]xtraordi-
nary disparity’’ in income. It follows that the regulation
contemplates that a child may well have a higher stan-
dard of living than his or her noncustodial parent while
continuing to have a relationship with that parent. We
conclude, therefore, that Maturo does not support the
proposition that it would be unfair, much less uncon-
scionable, to enforce a prenuptial agreement merely
because there is an extraordinary disparity between the
incomes or standards of living of the custodial parent
and the children, on the one hand, and the noncustodial
parent, on the other hand.22
The defendant also relies on this court’s decision in
Bedrick v. Bedrick, supra, 300 Conn. 691, to support
his contention that enforcement of the prenuptial agree-
ment would be unconscionable. In Bedrick, the parties
executed a postnuptial agreement in 1977, providing
that, in the event of a marital dissolution, neither party
would receive alimony.23 Id., 693–94. Instead, the plain-
tiff wife would receive a cash settlement in an amount
to be periodically reviewed. Id., 694. A May 18, 1989
addendum to the agreement provided for a cash settle-
ment in the amount of $75,000. Id. The plaintiff waived
her interest in the defendant’s car wash business, and
the defendant agreed that the plaintiff would not be
held liable for his personal and business loans. Id. In the
early 1990s, the defendant’s car wash business became
successful. Id., 707. In 1991, when the parties were forty-
one years old, their child was born. Id. By the time of
trial, the plaintiff had worked for that business for
thirty-five years, providing administrative and book-
keeping support. Id. Since 2001, when the business
began to deteriorate, the plaintiff had managed all busi-
ness operations except for maintenance. Id. In 2004,
the plaintiff worked outside of the business to provide
the family with additional income. Id. The trial court
concluded that ‘‘[t]he economic circumstances of the
parties had changed dramatically since the execution of
the agreement and that enforcement of the postnuptial
agreement would have worked injustice.’’ (Internal quo-
tation marks omitted.) Id. Accordingly, it concluded
that the agreement was unenforceable. Id. This court
concluded that ‘‘[t]he facts and circumstances . . .
clearly support the findings of the trial court that, as a
matter of law, enforcement of the agreement would be
unconscionable.’’ Id., 708.
In the present case, the defendant contends that
Bedrick stands for the proposition that a prenuptial
agreement is unenforceable whenever (1) a child was
unexpectedly born during the marriage, and (2) a
spouse has undergone dramatic economic changes. We
conclude that Bedrick is easily distinguishable from the
present case. First, in Bedrick, the plaintiff gave birth
to the parties’ child after sixteen years of marriage when
both parties were forty-one years old. See Bedrick v.
Bedrick, Docket No. FA-XX-XXXXXXX, 2009 WL 1335100,
*4 (Conn. Super. April 24, 2009). By contrast, in the
present case, the parties’ three children were all born
within five years of the marriage, when both parties
were in their thirties. Although the children may not
have been ‘‘contemplated’’ when the parties executed
the prenuptial agreement, it is reasonable to conclude
that their births were less of a bolt from the blue than
the birth of the parties’ child in Bedrick. Indeed, when
asked at trial whether he and the plaintiff ‘‘plan[ned]
on having children during the course of the marriage,’’
the defendant replied, ‘‘[y]eah.’’ When asked what his
plan was, he replied, ‘‘[t]o be fruitful and multiply.’’24
Second, the plaintiff in Bedrick worked for the defen-
dant’s car wash business for thirty-five years, including
the entire thirty-two year duration of the marriage, often
seven days per week. Bedrick v. Bedrick, supra, 300
Conn. 707; Bedrick v. Bedrick, supra, 2009 WL 1335100,
*3. The business floundered after the dissolution action
was instituted and the plaintiff ceased working for it.
Bedrick v. Bedrick, supra, 300 Conn. 707. In the present
case, there is no evidence that the defendant contrib-
uted to the success of any business or enterprise of
the plaintiff. Third, in Bedrick, the plaintiff secured
employment ‘‘outside of the [car wash] business in
order to provide the family with additional income.’’
(Emphasis added.) Id. Although the defendant in the
present case may have contributed to the support of
his children during the marriage, there is no evidence
that he provided financial support to the plaintiff.25
Finally, the plaintiff in Bedrick was fifty-seven years
old at the time of the marital dissolution, did not have
a college degree and had been diagnosed with diabetes,
which was controlled by medication. Bedrick v. Bedrick,
supra, 2009 WL 1335100, *3–4. In the present case, the
defendant was forty-four years old at the time of dissolu-
tion, had a college degree and was in good health.
We further note that the defendant had significant
assets at the time of the marital dissolution and is ade-
quately provided for, at least in the near term. Although
we recognize that his assets may not be sufficient to
meet his needs for his entire lifetime, nothing in the
record would support a conclusion that he is incapable
of earning an income.26 To the contrary, the evidence
showed that the defendant was an educated, healthy
forty-four year old with some business experience, and
he testified at trial that, once he expended his assets,
he was ‘‘going to have to hustle and figure some things
out, get . . . some salaried or . . . contract work
. . . and hope that what [he’s] been working on for the
last three years will come to fruition down in the . . .
Virgin Islands.’’ In addition, the defendant’s counsel
admitted to the trial court that the defendant ‘‘is intelli-
gent, he is healthy, and he is capable of working.’’
Accordingly, we cannot conclude that it would be
unconscionable to expect the defendant to obtain
employment to replace the unexpected loss of his
income from Intermountain Industries.27 Indeed, if we
were to conclude otherwise, an employed person who
entered into a prenuptial agreement and, after the mar-
riage, lost his or her job could simply refuse to seek
employment and then claim that his or her lack of
employment was a dramatic change in circumstances
warranting invalidation of the agreement.
Moreover, there is no evidence that the defendant,
unforeseeably or otherwise, gave up any income earn-
ing or asset building opportunities as a result of his
marriage or the births of the children, or that he made
significant and ongoing contributions to family life,
such as shopping, doing household chores, entertaining
the plaintiff’s associates and family, or caring for the
children, for which it would be unfair, much less uncon-
scionable, not to compensate him. Cf. Hornung v. Hor-
nung, supra, 323 Conn. 163 (‘‘[b]ecause the plaintiff’s
efforts as a homemaker and the primary caretaker of
the children increased the defendant’s earning capacity
at the expense of her own, she is entitled to [an alimony
award that will allow her to] maintain [her high predis-
solution] standard of living after the divorce, to the
extent possible’’). To the contrary, the trial court found
that the defendant ‘‘did not make the plaintiff or the
children even a remote priority in his life.’’ We conclude,
therefore, that the trial court correctly determined that
enforcement of the prenuptial agreement in the present
case would not be unconscionable in light of all of the
relevant facts and circumstances.
Finally, the defendant contends that it was inconsis-
tent for the trial court to conclude that it would be
unconscionable to enforce the provision of the prenup-
tial agreement requiring a party who unsuccessfully
seeks to invalidate any portion of it to pay the attorney’s
fees of the other party but not unconscionable to
enforce the remainder of the agreement. We disagree.
Significantly, the prenuptial agreement contained a sev-
erability clause that expressly contemplated that, if one
or more of its terms were found to be invalid, the rest
of the agreement would survive. See A. Rutkin et al.,
8A Connecticut Practice Series: Family Law and Prac-
tice with Forms (3d Ed. 2010) § 50.53, p. 256; cf. Venture
Partners, Ltd. v. Synapse Technologies, Inc., 42 Conn.
App. 109, 118, 679 A.2d 372 (1996) (discussing principles
of severability under Connecticut contract law). In sis-
ter states that, like Connecticut, have premarital agree-
ment statutes like § 46b-36g that are modeled after the
Uniform Premarital Agreement Act; see, e.g., Friezo
v. Friezo, supra, 281 Conn. 183–84; the presence of a
severability clause renders enforceable the remainder
of a prenuptial agreement that contains a provision that
is unconscionable or invalid as a matter of law. See,
e.g., In re Marriage of Heinrich, 7 N.E.3d 889, 906
(Ill. App. 2014) (concluding that severability clause left
‘‘remainder of the agreement . . . unaffected by
[court’s] holding’’ that agreement’s ‘‘[attorney fee shift-
ing] ban as to [child related] issues violates [Illinois]
public policy and is unenforceable’’ as to those issues);
Sanford v. Sanford, 694 N.W.2d 283, 293 (S.D. 2005)
(emphasizing presence of savings clause in concluding
that ‘‘[p]rovisions in a prenuptial agreement purporting
to limit or waive spousal support are void and unen-
forceable as they are contrary to public policy, and
[that they] may be severed from valid portions of the
prenuptial agreement without invalidating the entire
agreement’’); cf. Rivera v. Rivera, 149 N.M. 66, 72–73,
243 P.3d 1148 (N.M. App.) (premarital agreement was
unenforceable because it contained provision waiving
right to seek spousal or child support in violation of
state statute, and ‘‘agreement [did] not contain a sever-
ability clause, and [w]ife [made] no argument that the
remainder of the agreement should not be affected by
the invalidity of the support provisions’’), cert. denied,
149 N.M. 64, 243 P.3d 1146 (2010). Accordingly, the trial
court did not act inconsistently as a matter of law in
concluding that the effect of enforcing the attorney’s
fees provision was unconscionable because it would
‘‘financially cripple’’ the defendant, while also finding
that the remainder of the agreement was enforceable.
Because enforcement of the remainder of the agree-
ment would, as we explained, leave the defendant with
significant assets sufficient to provide for his needs
until he can obtain a source of income, the trial court
properly allowed the parties the benefit of the bargain
to which they had agreed before their marriage.
The judgment is affirmed.
In this opinion the other justices concurred.
* November 17, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 46b-36g provides in relevant part: ‘‘(a) A premarital
agreement or amendment shall not be enforceable if the party against whom
enforcement is sought proves that:
***
‘‘(2) The agreement was unconscionable when it was executed or when
enforcement is sought;
***
‘‘(c) An issue of unconscionability of a premarital agreement shall be
decided by the court as a matter of law.’’
2
The defendant appealed to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
3
Financial disclosures attached to the prenuptial agreement indicated
that the value of the defendant’s assets at the time of the marriage was
$13,267,952.81. It was discovered during the dissolution proceedings that
this figure had been established by using generally accepted accounting
practices, rather than fair market value, and that the fair market value of
the assets was $5,150,295.
4
Intermountain Industries was an oil and gas exploration business in
which the defendant’s father had a controlling interest. Intermountain Indus-
tries made dividend payments to an entity known as Century American,
which, in turn, made guaranteed payments to 4H, LLC, the members of
which were the defendant’s father and his lineal descendants, including the
defendant.
5
The trial court made no findings in connection with the defendant’s
claim at trial that the prenuptial agreement was unconscionable when the
parties executed it, and the defendant does not pursue that claim on appeal.
6
Specifically, the financial affidavit indicated that he had a weekly income
of $2 from dividends and interest payments.
7
In determining this amount, the trial court relied on a child support
guidelines worksheet dated February 12, 2019, in which the plaintiff stipu-
lated that she received $48,361 in gross weekly income and mandatory
deductions of $14,077, for a net weekly income of $34,284. The plaintiff
submitted a subsequent financial affidavit to the trial court dated February
20, 2019, indicating that her net weekly income was $24,505. This figure
appears to have been a clerical error, as the same affidavit indicates that
her gross weekly income was $48,361, and mandatory deductions were
$14,491, which would yield a net weekly income of $33,870.
8
The parties stipulated that, for child support purposes only, the defendant
had a gross weekly income of $3720 and a net weekly income of $2569.
9
The trial court made no finding on the issue, but the undisputed evidence
showed that the defendant had liabilities of $1.35 million, yielding a net
worth of approximately $750,000.
10
The trial court stated that, ‘‘[a]lthough the defendant was not financially
crippled after his home burned down, the Yacht Club was underinsured,
and the insurance proceeds could not fully restore the property to its prior
form. In addition to the defendant’s financial losses from these unforeseen
events, he was no longer able to generate revenue from the Yacht Club after
it was destroyed, significantly diminishing his assets.’’
11
Evidence presented at trial showed that the plaintiff had paid attorney’s
fees in the amount of $1,559,713.17 defending against the defendant’s cross
complaint seeking invalidation of the prenuptial agreement.
12
After this appeal was filed, the plaintiff filed a motion for leave to file
a late conditional cross appeal in which she requested permission to cross
appeal from the trial court’s ruling invalidating the attorney’s fees provision
in the event that the Appellate Court reversed the judgment and remanded
the case to the trial court for a new trial without resolving the issue of the
enforceability of the prenuptial agreement. The Appellate Court denied the
motion, and this claim is not before us.
13
The defendant also claims that the trial court improperly precluded him
from soliciting testimony as to whether the parties contemplated certain
events when they entered into the prenuptial agreement. Because we con-
clude that enforcement of the agreement is not unconscionable, even assum-
ing that the events at issue were not contemplated by the parties, we need
not address this claim.
14
The plaintiff also contends, essentially as an alternative ground for
affirmance, that the trial court incorrectly determined that the parties did
not contemplate that they would have children, that the defendant’s house
would be destroyed by fire, that the Yacht Club would be destroyed by a
hurricane and that Intermountain Industries would fail. There appear to be
two separate bases for this claim. First, the plaintiff appears to contend
that these events were contemplated by the parties as a matter of law
because the prenuptial agreement expressly provided that ‘‘[n]o change in
circumstances of the parties shall render [the] [a]greement unconscionable
if enforcement hereof is sought at any time in the future.’’ Second, the
plaintiff claims that these events were, as a factual matter, within the contem-
plation of the parties. We are doubtful, however, whether a ‘‘no change in
circumstance’’ provision could save a prenuptial agreement that otherwise
would be unenforceable as unconscionable. We need not resolve these
issues here, however, because we conclude that the trial court correctly
determined that the existence of these uncontemplated events did not render
the enforcement of the prenuptial agreement unconscionable.
15
Bedrick involved the enforceability of a postnuptial agreement. See
Bedrick v. Bedrick, supra, 300 Conn. 693. The same principle, however,
applies to prenuptial agreements. See id., 696–97; Crews v. Crews, supra,295 Conn. 167 (‘‘equitable considerations codified in our statutes . . . have
no bearing on whether [a prenuptial] agreement should be enforced’’ (inter-
nal quotation marks omitted)).
16
As we indicated; see footnote 14 of this opinion; we need not address
the plaintiff’s challenge to the trial court’s factual findings on these issues
because, even assuming that, contrary to the plaintiff’s claim, the findings
were correct, we agree with the trial court’s legal conclusion that those
facts did not render the prenuptial agreement unconscionable.
17
The defendant testified at trial that, since the dissolution action was
brought, he has paid rent of $3500 per month for a 983 square foot, three
bedroom house in the Rowayton neighborhood of Norwalk. He further
testified that the house has a garage that he has converted into a playroom,
laundry room, workshop and storage area.
18
See Regs., Conn. State Agencies § 46b-215a-1 (6). The current version
of the child support guidelines recognizes that there has been ‘‘a trend away
from ‘custodial/noncustodial’ and ‘visitation’ language toward the concept of
shared parenting.’’ Child Support and Arrearage Guidelines (2015), preamble,
§ (g), p. xii. The guidelines also recognize that, ‘‘within the context of shared
physical custody, both parents are essentially custodial.’’ Id. When that is
the case, the guidelines provide that ‘‘the most practical approach [is] for
[child support] to be paid by the parent with the higher income.’’ Id. As we
have indicated, in the present case, the plaintiff has primary physical custody
of the children, and the defendant has made no claim that he is entitled to
child support on the ground that the parties have shared custody. To the
contrary, he agreed to pay child support to the plaintiff and concedes that
he is not entitled to receive child support from her.
19
We note that there is considerable overlap between the factors that the
trial court must consider when crafting an alimony award pursuant to Gen-
eral Statutes § 46b-82 and the factors that it must consider when assigning
property pursuant to General Statutes § 46b-81. Neither statute authorizes
the court to consider the ability of a spouse to support his or her children,
and the defendant has cited no authority for the proposition that, unlike an
alimony award, it is proper to assign property for that purpose.
20
The court in Melrod v. Melrod, 83 Md. App. 180, 574 A.2d 1, cert. denied,
321 Md. 67, 580 A.2d 1077 (1990), observed that the failure to award an
indefinite award of alimony to the plaintiff wife might be unconscionable
because ‘‘it could not help but have some effect upon the child to go back
and forth between a father who can afford to live in luxury and a mother
who is required to exercise some degree of frugality.’’ Id., 197. Melrod
involved a Maryland statute providing that a court may award alimony for
an indefinite period if the court finds that, ‘‘even after the party seeking
alimony will have made as much progress toward becoming self-supporting
as can reasonably be expected, the respective standards of living of the
parties will be unconscionably disparate.’’ Md. Code Ann., Fam. Law § 11-
106 (c) (2) (1984); see Melrod v. Melrod, supra, 196. Connecticut has no
such statute, and, as we explained, alimony may not be used in this state
to disguise child support. Although we recognize that it may be difficult for
some children under some circumstances to grapple with the fact that their
parents have disparate standards of living, we do not agree with the court
in Melrod to the extent that it concluded that it is unconscionable to permit
a child who enjoys the same high standard of living that he or she did before
the dissolution to have a relationship with a parent who lives in a somewhat
more modest manner. Indeed, spending time with a less affluent parent
could be just as beneficial to a child as time spent with an affluent parent.
21
As we indicated, if the parents have shared physical custody of the
children, the parent with the lower income can make a claim for child
support. See footnote 18 of this opinion. That is not the case here. If the
legislature believes there is a gap in the statutory scheme governing marital
dissolutions and financial awards in this regard, it is free to address that
gap legislatively. It is not the role of this court to create public policy in
this highly regulated area.
22
In such a situation, the fact that the lower income noncustodial parent
is unable to provide for himself in the same manner as when the prenuptial
agreement was executed may, depending on all of the relevant facts and
circumstances, justify invalidating the agreement and awarding alimony on
that ground. See footnote 27 of this opinion. We are aware of no authority,
however, for the proposition that a noncustodial parent who otherwise
would not be entitled to alimony would be entitled to it solely on the basis
of his ‘‘need’’ to provide for his children in the same manner as the custodial
parent. See, e.g., Loughlin v. Loughlin, supra, 280 Conn. 655 (it is improper
to disguise child support as alimony).
23
This court concluded in Bedrick that postnuptial agreements are subject
to stricter scrutiny than prenuptial agreements when a court is determining
whether they are enforceable at the time of execution. Bedrick v. Bedrick,
supra, 300 Conn. 703–704. Specifically, unlike prenuptial agreements, post-
nuptial agreements ‘‘are subject to special scrutiny and the terms of such
agreements must be both fair and equitable at the time of execution . . . .’’
Id., 697. Courts apply the same standard, however, when determining
whether postnuptial and prenuptial agreements are enforceable at the time of
enforcement, namely, whether the agreement was unconscionable. Id., 704.
24
The defendant suggests that this testimony related to his expectations
during the marriage, not at the time that he executed the prenuptial agree-
ment. As we have indicated, we assume, without deciding, that the trial
court correctly determined that the parties did not ‘‘contemplate’’ having
three children when the agreement was executed. As we have also suggested,
however, the question of whether an event was ‘‘contemplated’’ is not a
black and white one but involves shades of gray. Although the parties may
not have ‘‘contemplated’’ having three daughters within five years of the
marriage in the sense that they did not expressly discuss the matter and
had no specific plan when they entered into the agreement shortly before
the marriage, it seems highly implausible that they had a conscious plan to
have no children at that time but that several months after the marriage
when the plaintiff became pregnant, the defendant suddenly developed a
plan to ‘‘be fruitful and multiply.’’ We conclude, therefore, that, even if the
births of the three children were not contemplated when the agreement
was executed, in the sense that the births were not consciously and explicitly
planned, they were not so completely beyond or contrary to expectation
that enforcement of the agreement would work an injustice. See McHugh
v. McHugh, supra, 181 Conn. 489.
25
The defendant points out that, after the marriage, the parties lived in
the defendant’s house, ‘‘where he paid the carrying costs,’’ until it was
destroyed in the fire. They then leased another house using insurance pro-
ceeds. The evidence also showed, however, that the plaintiff provided
approximately 75 percent of the furnishings for the defendant’s house, for
which she received insurance compensation, and she spent $50,000 to
$60,000 on improvements to the defendant’s property, for which she never
made any claim. The trial court made no finding as to whether the evidence
that the plaintiff lived in the defendant’s house supported the conclusion
that the defendant provided financial support to the plaintiff, and we con-
clude that the evidence does not compel the conclusion that he did. The
only finding that the trial court made on this issue was that ‘‘[t]he parties
kept their money separate and devoted vastly different amounts of effort
and respect into their marriage . . . . Instead of trying to provide for the
plaintiff and their young children, the defendant remained stagnant and
engulfed in a selfish mentality until he lost his footing in his business and
his marriage.’’
26
The defendant contends that this court is precluded from considering
his ability to provide for himself because the trial court did not expressly
specify his earning capacity. See, e.g., Tanzman v. Meurer, 309 Conn. 105,
117, 70 A.3d 13 (2013) (trial court must specify dollar amount of party’s
earning capacity when that factor provides basis for financial award because
failure to do so ‘‘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 modifica-
tion to determine whether there has been a substantial change in circum-
stances’’). The defendant fails to recognize that the trial court in the present
case was not determining the amount of a financial award pursuant to § 46b-
82 (a) and General Statutes § 46b-86, as in Tanzman, but was determining
whether enforcement of the prenuptial agreement would be unconscionable
under § 46b-36g (a) (2) in light of all of the relevant facts and circumstances.
The defendant bore the heavy burden of proving an extraordinary change
in circumstances to prevail on that issue. See, e.g., Crews v. Crews, supra,295 Conn. 169. The defendant has pointed to no evidence that would support
a finding that, as of the date of the dissolution, he was no longer capable
of earning an income, and he made no such claim to the trial court or
on appeal.
27
The defendant’s counsel contended at oral argument before this court
that the defendant should not be required to establish that he will be unable
to provide for his basic needs before the enforcement of the prenuptial
agreement can be found to be unconscionable under § 46b-36g (a) (2),
because such an interpretation of that statute would render § 46b-36g (b)
superfluous. See General Statutes § 46b-36g (b) (‘‘[i]f a provision of a premar-
ital agreement modifies or eliminates spousal support and such modification
or elimination causes one party to the agreement to be eligible for support
under a program of public assistance at the time of separation or marital
dissolution, a court, notwithstanding the terms of the agreement, may require
the other party to provide support to the extent necessary to avoid such
eligibility’’). We agree with the defendant that there may be circumstances
in which the enforcement of a prenuptial agreement would be unconsciona-
ble even though the party seeking to invalidate the agreement would be
able to provide for his or her basic needs if the agreement were to be
enforced. Cf. Bevilacqua v. Bevilacqua, 201 Conn. App. 261, 273–74, 242 A.3d
542 (2020) (trial court correctly concluded that enforcement of prenuptial
agreement would be unconscionable when ‘‘there was evidence in the record
that [a motor vehicle accident resulting in a mild traumatic brain injury]
impaired the plaintiff’s ability to work full-time, and, as a result, she was
forced to obtain part-time employment at a salary far lower than the one
she earned at the time the agreement was executed’’). That does not mean
that the question of whether the party seeking to invalidate the agreement
will be able to provide for his or her basic needs if the agreement is enforced
is always irrelevant to the determination of whether enforcement would be
unconscionable. Indeed, there may be cases in which, under all of the
relevant facts and circumstances, the enforcement of a prenuptial agreement
would not be unconscionable despite a significant reduction in the income
of the party seeking invalidation, provided that the court finds that the party
can still provide for his or her basic needs. We need not resolve that issue
in the present case, however, because the defendant presented no evidence
that he is no longer capable of earning an income comparable to the income
that he was earning when he executed the prenuptial agreement. See foot-
note 26 of this opinion.